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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
between
UNIFIED HOLDINGS, INC.,
a Delaware corporation
and
FLTC ACQUISITION CORPORATION,
a Kentucky corporation, as Buyers,
and
FIRST LEXINGTON TRUST COMPANY,
a Kentucky corporation, as Seller
Dated as of April 25, 1997
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TABLE OF CONTENTS Page
ARTICLE I THE MERGER. . . . . . . . . . . . . . . . . . . . . . 1
1.01. The Merger. . . . . . . . . . . . . . . . . . . . . . 1
1.02. Closing . . . . . . . . . . . . . . . . . . . . . . . 1
1.03. Effective Time. . . . . . . . . . . . . . . . . . . . 1
1.04. Additional Actions. . . . . . . . . . . . . . . . . . 2
1.05. Articles of Incorporation and Bylaws. . . . . . . . . 2
1.06. Boards of Directors and Officers. . . . . . . . . . . 2
1.07. Conversion of Securities. . . . . . . . . . . . . . . 2
1.08. Exchange Procedures . . . . . . . . . . . . . . . . . 3
1.09. Dissenting Shares . . . . . . . . . . . . . . . . . . 3
1.10. No Fractional Shares. . . . . . . . . . . . . . . . . 4
1.11. Closing of Stock Transfer Books . . . . . . . . . . . 4
1.12. Anti-Dilution Adjustments . . . . . . . . . . . . . . 4
1.13. Material Adverse Effect . . . . . . . . . . . . . . . 5
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER. . . . . . . . . . . . . . . . . . . . . . . . 5
2.01. Organization and Authority. . . . . . . . . . . . . . 5
2.02. Subsidiaries. . . . . . . . . . . . . . . . . . . . . 5
2.03. Capitalization. . . . . . . . . . . . . . . . . . . . 5
2.04. Authorization . . . . . . . . . . . . . . . . . . . . 6
2.05. Seller Financial Statements.. . . . . . . . . . . . . 7
2.06. Seller Reports. . . . . . . . . . . . . . . . . . . . 7
2.07. Title to and Condition of Assets. . . . . . . . . . . 7
2.08. Real Property . . . . . . . . . . . . . . . . . . . . 8
2.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . 8
2.10. Material Adverse Effect . . . . . . . . . . . . . . . 9
2.11. Loans, Commitments and Contracts. . . . . . . . . . . 9
2.12. Absence of Defaults . . . . . . . . . . . . . . . . . 10
2.13. Litigation and Other Proceedings. . . . . . . . . . . 10
2.14. Directors' and Officers' Insurance. . . . . . . . . . 10
2.15. Compliance with Laws. . . . . . . . . . . . . . . . . 11
2.16. Labor . . . . . . . . . . . . . . . . . . . . . . . . 12
2.17. Material Interests of Certain Persons . . . . . . . . 12
2.18. Employee Benefit Plans. . . . . . . . . . . . . . . . 12
2.19. Conduct of Seller to Date . . . . . . . . . . . . . . 13
2.20. Absence of Undisclosed Liabilities. . . . . . . . . . 14
2.21. Proxy Statement, Etc. . . . . . . . . . . . . . . . . 14
2.22. Registration Obligations. . . . . . . . . . . . . . . 15
2.23. Tax and Regulatory Matters. . . . . . . . . . . . . . 15
2.24. Intellectual Property; Patents; Trademarks;
Trade Names . . . . . . . . . . . . . . . . . . . . . 15
2.25. Bank Accounts . . . . . . . . . . . . . . . . . . . . 15
2.26. Transactions with Affiliates. . . . . . . . . . . . . 15
2.27. Brokers and Finders . . . . . . . . . . . . . . . . . 15
2.28. Accuracy of Information . . . . . . . . . . . . . . . 16
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ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF
BUYERS. . . . . . . . . . . . . . . . . . . . . . . . 16
3.01. Organization and Authority. . . . . . . . . . . . . . 16
3.02. Capitalization of Unified . . . . . . . . . . . . . . 16
3.03. Authorization . . . . . . . . . . . . . . . . . . . . 17
3.04. Unified Financial Statements. . . . . . . . . . . . . 17
3.05. Unified Reports . . . . . . . . . . . . . . . . . . . 18
3.06. Material Adverse Effect . . . . . . . . . . . . . . . 18
3.07. Legal Proceedings or Other Adverse Facts. . . . . . . 18
3.08. Proxy Statement, Etc. . . . . . . . . . . . . . . . . 18
3.09. Brokers and Finders . . . . . . . . . . . . . . . . . 18
3.10. Accuracy of Information . . . . . . . . . . . . . . . 18
ARTICLE IV CONDUCT OF BUSINESSES PRIOR TO THE EFFECTIVE
TIME. . . . . . . . . . . . . . . . . . . . . . . . . 19
4.01. Conduct of Businesses Prior to the Effective
Time. . . . . . . . . . . . . . . . . . . . . . . . . 19
4.02. Forbearances of Seller. . . . . . . . . . . . . . . . 19
4.03. Forbearances of Buyers. . . . . . . . . . . . . . . . 20
ARTICLE V ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . 20
5.01. Access and Information. . . . . . . . . . . . . . . . 20
5.02. Registration Statement; Regulatory Matters. . . . . . 21
5.03. Shareholder Approval. . . . . . . . . . . . . . . . . 21
5.04. Current Information . . . . . . . . . . . . . . . . . 22
5.05. Environmental Reports . . . . . . . . . . . . . . . . 22
5.06. Agreements of Affiliates. . . . . . . . . . . . . . . 22
5.07. Expenses. . . . . . . . . . . . . . . . . . . . . . . 22
5.08. Miscellaneous Agreements. . . . . . . . . . . . . . . 22
5.09. Employee Agreements and Benefits. . . . . . . . . . . 23
5.10. Press Releases. . . . . . . . . . . . . . . . . . . . 23
5.11. State Takeover Statutes . . . . . . . . . . . . . . . 23
5.12. Directors' and Officers' Indemnification. . . . . . . 23
5.13. Tax Opinion Certificates. . . . . . . . . . . . . . . 24
ARTICLE VI CONDITIONS. . . . . . . . . . . . . . . . . . . . . . 24
6.01. Conditions to Each Party's Obligation to Effect
the Merger. . . . . . . . . . . . . . . . . . . . . . 24
6.02. Conditions to Obligations of Seller to Effect
the Merger. . . . . . . . . . . . . . . . . . . . . . 25
6.03. Conditions to Obligations of Buyers to Effect
the Merger. . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER . . . . . . . . . . 26
7.01. Termination . . . . . . . . . . . . . . . . . . . . . 26
7.02. Effect of Termination . . . . . . . . . . . . . . . . 27
7.03. Amendment . . . . . . . . . . . . . . . . . . . . . . 27
7.04. Waiver. . . . . . . . . . . . . . . . . . . . . . . . 27
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ARTICLE VIII INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 27
8.01. Indemnification of Buyers . . . . . . . . . . . . . . 27
8.02. Indemnification of Seller's Shareholders. . . . . . . 28
8.03. Payment of Claims for Indemnification . . . . . . . . 29
8.04. Survival of Indemnification . . . . . . . . . . . . . 29
ARTICLE IX GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . 30
9.01. Non-Survival of Representations, Warranties and
Agreements. . . . . . . . . . . . . . . . . . . . . . 30
9.02. No Assignment; Successors and Assigns . . . . . . . . 30
9.03. No Implied Waiver . . . . . . . . . . . . . . . . . . 30
9.04. Headings. . . . . . . . . . . . . . . . . . . . . . . 30
9.05. Entire Agreement. . . . . . . . . . . . . . . . . . . 30
9.06. Counterparts. . . . . . . . . . . . . . . . . . . . . 30
9.07. Notices . . . . . . . . . . . . . . . . . . . . . . . 30
9.08. Severability. . . . . . . . . . . . . . . . . . . . . 31
9.09. Governing Law . . . . . . . . . . . . . . . . . . . . 31
LIST OF EXHIBITS
Exhibit A Shareholder Tax Certificate
Exhibit B Officer/Director Tax Certificate
Exhibit C Form of Opinion of Counsel of Buyer
Exhibit D Form of Opinion of Counsel of Seller
LIST OF SCHEDULES
Schedule 2.01 Articles/Bylaws/Lists of Shareholders
Schedule 2.02 Equity Securities
Schedule 2.04(b) Events of Default
Schedule 2.05(a) Financial Statements
Schedule 2.08(a) Owned Real Property/Leased Real Property
Schedule 2.11(a) Contracts
Schedule 2.11(b) Insurance
Schedule 2.13 Litigation
Schedule 2.18(a) Employee Benefit Plans
Schedule 2.24 Intellectual Property; Patents; Trademarks;
Trade Names
Schedule 2.25 Bank Accounts
Schedule 2.26 Transactions with Affiliates
Schedule 5.06 Affiliates
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
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This AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
(this "Agreement") is made and entered into as of the 25th day of
April 1997, by and among UNIFIED HOLDINGS, INC., a Delaware
corporation ("Unified"), and FLTC ACQUISITION CORPORATION, a
Kentucky corporation and wholly owned subsidiary of Unified
("Merger Sub" and, collectively with Unified, the "Buyers"), on the
one hand, and FIRST LEXINGTON TRUST COMPANY, a Kentucky corporation
("Seller"), and Xx. Xxxxxxx X. Xxxxxx, a shareholder of Seller (the
"Principal Shareholder"), on the other hand.
W I T N E S S E T H:
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WHEREAS, the respective Boards of Directors of Unified,
Merger Sub and Seller have approved the merger (the "Merger") of
Merger Sub with and into Seller pursuant to the terms and subject
to the conditions of this Agreement; and
WHEREAS, each of Unified and Seller believe that such
proposed Merger, and the conversion of shares of Seller Common
Stock (as defined in Section 1.07 hereof) into shares of Unified
Common Stock (as defined in Section 1.07 hereof) in the manner
provided in this Agreement is desirable and in the best interests
of their respective stockholders and shareholders, as the case may
be; and
WHEREAS, Unified and Seller intend that the Merger
constitute a reorganization within the meaning of Section 368 of
the Internal Revenue Code of 1986, as amended (the "Code"), and
that the conversion of Seller Common Stock into Unified Common
Stock in connection with the Merger will not give rise to gain or
loss to the shareholders of Seller with respect to such conversion;
and
WHEREAS, the parties desire to provide for certain
undertakings, conditions, representations, warranties and covenants
in connection with the transactions contemplated by this Agreement.
NOW THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the
parties agree as follows:
ARTICLE I
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THE MERGER
1.01. The Merger. Subject to the terms and
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conditions of this Agreement, Merger Sub shall be merged with and
into Seller in accordance with Chapter 271B of the Kentucky
Business Corporation Act (the "Kentucky Statute"), and the separate
corporate existence of Merger Sub shall cease. Seller shall be the
surviving corporation of the Merger (sometimes referred to herein
as the "Surviving Corporation") and shall continue to be governed
by the laws of the State of Kentucky.
1.02. Closing. The closing (the "Closing") of the
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Merger shall take place at 10:00 a.m., local time, on the date that
the Effective Time (as defined in Section 1.03) occurs (the
"Closing Date"), or at such other time, and at such place, as
Buyers and Seller shall agree.
1.03. Effective Time. The Merger shall become
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effective (the "Effective Time") upon the filing of articles of
merger with the Office of the Secretary of State of the State of
Kentucky. Unless otherwise mutually agreed in writing by Buyers
and Seller, subject to the terms and conditions of this Agreement,
the Effective Time shall occur on such date as Buyers shall notify
Seller in writing (such
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notice to be at least five business days in advance of the Effective
Time) but (i) not earlier than the satisfaction of all conditions set
forth in Section 6.01(a) and 6.01(b) (the "Approval Date") and (ii)
not later than the first business day of the first full calendar month
commencing at least five business days after the Approval Date.
1.04. Additional Actions. If, at any time after the
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Effective Time, Unified or the Surviving Corporation shall consider
or be advised that any further deeds, assignments or assurances or
any other acts are necessary or desirable to (a) vest, perfect or
confirm, of record or otherwise, in the Surviving Corporation, all
right, title or interest in, to or under any of the rights,
properties or assets of Seller or Merger Sub or (b) otherwise carry
out the purposes of this Agreement, Seller and Merger Sub and each
of their respective officers and directors, shall be deemed to have
granted to the Surviving Corporation an irrevocable power of
attorney to execute and deliver all such deeds, assignments or
assurances and to do all acts necessary or desirable to vest,
perfect or confirm title and possession to such rights, properties
or assets in the Surviving Corporation and otherwise to carry out
the purposes of this Agreement, and the officers and directors of
the Surviving Corporation are authorized in the name of Seller or
otherwise to take any and all such action.
1.05. Articles of Incorporation and Bylaws. The
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Articles of Incorporation and Bylaws of Seller in effect
immediately prior to the Effective Time shall be the Articles of
Incorporation and Bylaws of the Surviving Corporation following the
Merger, until otherwise amended or repealed.
1.06. Boards of Directors and Officers. At the
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Effective Time, the directors and officers of Seller immediately
prior to the Effective Time shall be the directors and officers,
respectively, of the Surviving Corporation following the Merger,
and such directors and officers shall hold office in accordance
with the Surviving Corporation's Bylaws and applicable law;
provided, however, as of the Effective Time of the Merger,
Surviving Corporation shall take any and all actions necessary to
add Xxxxxxx X. Xxxxxxx as a member of the Board of Directors of
Surviving Corporation.
1.07. Conversion of Securities. At the Effective
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Time, by virtue of the Merger and without any action on the part of
Buyers, Seller or the holder of any of the following securities:
(a) Each share of the common stock, no par
value, of Merger Sub that is issued and outstanding
immediately prior to the Effective Time shall,
without any action on the part of the holder
thereof, be converted into one fully paid and
nonassessable share of Common Stock of the Surviving
Corporation, which shall upon such conversion be
validly issued and outstanding, fully paid and
nonassessable and shall not be liable to any further
call, nor shall the holder thereof be liable for any
further payments with respect thereto; and
(b) Subject to Sections 1.09, 1.10 and 1.12
hereof, the shares of common stock, no par value, of
Seller ("Seller Common Stock") issued and
outstanding at the Effective Time shall cease to be
outstanding and shall be converted into and become
the right to receive 80,008 shares (the "Exchange
Ratio") of common stock, no par value, of Unified
("Unified Common Stock"), in the aggregate (the
"Merger Consideration").
Shares of Seller Common Stock held by Seller, or by Unified or any
of its wholly owned "Subsidiaries" (as defined in Rule 1-02 of
Regulation S-X promulgated by the Securities and Exchange
Commission (the "SEC")), in each case other than in a fiduciary
capacity or as a result of debts previously contracted, shall be
cancelled and shall not be exchanged after the Effective Time for
the Merger Consideration. In addition, no Dissenting Shares (as
defined in Section 1.09 of this Agreement) shall be converted
pursuant
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to this Section 1.07 but shall be treated in accordance with the
procedures set forth in Section 1.09 of this Agreement.
1.08. Exchange Procedures.
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(a) Within two (2) days following the Closing
Date, Unified shall mail or cause to be mailed to holders
of record of certificates representing shares of Seller
Common Stock (the "Certificates"), as identified on the
Seller Shareholder List, as provided pursuant to Section
1.11 hereof, letters advising them of the effectiveness
of the Merger and instructing them to tender such
Certificates to Unified, or in lieu thereof, such
evidence of lost, stolen or mutilated Certificates and
such surety bond or other security as Unified may
reasonably require (the "Required Documentation").
(b) Subject to Section 1.11, after the
Effective Time, each previous holder of a Certificate
that surrenders such Certificate or in lieu thereof, the
Required Documentation, to Unified, with a properly
completed and executed letter of transmittal with respect
to such Certificate, will be entitled to a certificate or
certificates representing the Merger Consideration.
(c) Each outstanding Certificate, until duly
surrendered to Unified, shall be deemed to evidence
ownership of the Merger Consideration into which the
stock previously represented by such Certificate shall
have been converted pursuant to this Agreement.
(d) After the Effective Time, holders of
Certificates shall cease to have rights with respect to
the stock previously represented by such Certificates,
and their sole rights shall be to exchange such
Certificates for the Merger Consideration issuable in the
Merger. After the closing of the transfer books as
described in Section 1.11 hereof, there shall be no
further transfer on the records of Seller of
Certificates, and if such Certificates are presented to
Seller for transfer, they shall be cancelled against
delivery of the Merger Consideration. Neither Buyer nor
the Surviving Corporation shall be obligated to deliver
the Merger Consideration to which any former holder of
Seller Common Stock is entitled as a result of the Merger
until such holder surrenders the Certificates or
furnishes the Required Documentation as provided herein.
No dividends or distributions declared after the
Effective Time on the Unified Common Stock will be
remitted to any person until such person surrenders the
Certificate representing the right to receive such
Unified Common Stock or furnishes the Required
Documentation, at which time such dividends or
declarations shall be remitted to such person, without
interest and less any taxes that may have been imposed
thereon. Certificates surrendered for exchange by an
affiliate shall not be exchanged until Unified has
received a written agreement from such affiliate as
required pursuant to Section 5.06 hereof. Neither
Unified nor any party to this Agreement nor any affiliate
thereof shall be liable to any holder of stock
represented by any Certificate for any Merger
Consideration issuable in the Merger that is paid to a
public official pursuant to applicable abandoned
property, escheat or similar laws.
1.09. Dissenting Shares.
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(a) "Dissenting Shares" means any shares held
by any holder who becomes entitled to payment of the fair
value of such shares under Chapter 271, Subtitle 13 of the
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Kentucky Statute. Any holders of Dissenting Shares
shall be entitled to payment for such shares only to the
extent permitted by and in accordance with the provisions
of such law, and Unified shall cause the Surviving
Corporation to pay such consideration with funds provided
by Unified.
(b) Each party hereto shall give the other
prompt notice of any written demands for the payment of
the fair value of any shares, withdrawals of such demands
and any other instruments served pursuant to the Kentucky
Statute received by such party, and Seller shall give
Unified the opportunity to participate in all
negotiations and proceedings with respect to such
demands. Seller shall not voluntarily make payment with
respect to any demands for payment of fair value and
shall not, except with the prior written consent of
Unified, which consent shall not be unreasonably
withheld, settle or offer to settle any such demands.
1.10. No Fractional Shares. Notwithstanding any
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other provision of this Agreement, neither certificates nor scrip
for fractional shares of Unified Common Stock shall be issued in
the Merger. Each holder who otherwise would have been entitled to
a fraction of a share of Unified Common Stock shall receive in lieu
thereof one share of Unified Common Stock for the fractional share
interest to which such holder would otherwise be entitled.
1.11. Closing of Stock Transfer Books.
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(a) The stock transfer books of Seller shall
be closed at the end of business on the business day
immediately preceding the Closing Date. In the event of
a transfer of ownership of Seller Common Stock which is
not registered in the transfer records prior to the
closing of such record books, the Merger Consideration
issuable with respect to such stock may be delivered to
the transferee, if the Certificate or Certificates
representing such stock is presented to Unified
accompanied by all documents required to evidence and
effect such transfer and all applicable stock transfer
taxes are paid.
(b) At the Effective Time, Seller shall
provide Unified with a complete and verified list of
registered holders of Seller Common Stock based upon its
stock transfer books as of the closing of said transfer
books, including the names, addresses, certificate
numbers and taxpayer identification numbers of such
holders (the "Seller Shareholder List"). Buyers shall be
entitled to rely upon the Seller Shareholder List to
establish the identity of those persons entitled to
receive the Merger Consideration specified in this
Agreement, which list shall be conclusive with respect
thereto. In the event of a dispute with respect to
ownership of stock represented by any Certificate, Buyers
shall be entitled to deposit any Merger Consideration
represented thereby in escrow with an independent third
party and thereafter be relieved with respect to any
claims thereto.
1.12. Anti-Dilution Adjustments. Other than for the
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two-for-one stock split with respect to the Unified Common Stock,
which is to be effected prior to the Effective Time, if between the
date of this Agreement and the Effective Time a share of Unified
Common Stock shall be changed into a different number of shares of
Unified Common Stock or a different class of shares by reason of
reclassification, recapitalization, split-up, combination, exchange
of shares or readjustment, or if a stock dividend thereon shall be
declared with a record date within such period, then appropriate
and proportionate adjustment or adjustments will be made to the
Exchange Ratio such that each shareholder of Seller shall be
entitled to receive such number of shares of Unified Common Stock
or other securities as such shareholder would have received
pursuant to such reclassification, recapitalization, split-up,
combination,
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exchange of shares or readjustment or as a result of such stock
dividend had the record date therefor been immediately following the
Effective Time.
1.13. Material Adverse Effect. As used in this
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Agreement, the term "Material Adverse Effect" with respect to an
entity means any condition, event, change or occurrence that has or
may reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), properties, business or results
of operations, of such entity and its Subsidiaries, taken as a
whole as reflected in the Seller Financial Statements (as defined
in Section 2.05(b)) or the Unified Financial Statements (as defined
in Section 3.04), as the case may be; it being understood that a
Material Adverse Effect shall not include: (i) a change with
respect to, or effect on, such entity and its Subsidiaries
resulting from a change in law, rule, regulation, generally
accepted accounting principles or regulatory accounting principles;
or (ii) a change disclosed in the Seller Financial Statements or
the Unified Financial Statements, as the case may be.
ARTICLE II
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REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
As an inducement to Buyers to enter into and perform
their respective obligations under this Agreement, and notwith-
standing any examination, inspection, audit or any other investiga-
tion made by Buyers, Seller represents and warrants to and
covenants with Buyers as follows:
2.01. Organization and Authority. Seller is a
--------------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of Kentucky, is duly qualified to do
business and is in good standing in all jurisdictions where its
ownership or leasing of property or the conduct of its business
requires it to be so qualified and has corporate power and
authority to own its properties and assets and to carry on its
business as it is now being conducted. Seller has been granted,
and currently possesses, the requisite authority from the Kentucky
Commissioner of Banking to act as a trust company in the State of
Kentucky. True and complete copies of the Articles of
Incorporation and Bylaws of Seller are attached hereto as Schedule 2.01.
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Also attached hereto as Schedule 2.01 are true and complete lists of
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the shareholders of Seller, as of a date hereof.
2.02. Subsidiaries. Schedule 2.02 sets forth, a
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complete and correct list of all outstanding Equity Securities (as
defined in Section 2.03) owned by Seller. Seller does not own,
directly or indirectly, any Subsidiaries. Seller does not own
beneficially, directly or indirectly, any shares of any class of
Equity Securities or similar interests of any corporation, bank,
business trust, association or organization, or any interest in a
partnership or joint venture of any kind, other than those
identified in Schedule 2.02 hereof.
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2.03. Capitalization. The authorized capital stock
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of Seller consists of 10,000 shares of Seller Common Stock, of
which, as of the date hereof, 8,295 shares were issued and
outstanding. There are no other Equity Securities of Seller
outstanding. "Equity Securities" of an issuer means capital stock
or other equity securities of such issuer, options, warrants,
scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights
convertible into, shares of any capital stock or other equity
securities of such issuer, or contracts, commitments, understand-
ings or arrangements by which such issuer is or may become bound to
issue additional shares of its capital stock or other equity
securities of such issuer, or options, warrants, scrip or rights to
purchase, acquire, subscribe to, calls on or commitments for any
shares of its capital stock or other equity securities. All of the
issued and outstanding shares of Seller Common Stock are validly
issued, fully paid and
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nonassessable, and have not been issued in violation of any preemptive
right of any shareholder of Seller.
2.04. Authorization.
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(a) Seller has the corporate power and
authority to enter into this Agreement and, subject to
the approval of this Agreement by the shareholders of
Seller and Regulatory Authorities (as defined in Section
2.06), to carry out its obligations hereunder. The only
shareholder vote required for Seller to approve this
Agreement is the affirmative vote of (i) the holders of
a majority of the outstanding shares of Seller Common
Stock entitled to vote at a meeting called for such
purpose and (ii) any shareholder and director (or
trustee) approvals required by the Investment Company Act
of 1940, as amended, and the rules and regulations
thereunder (the "1940 Act") in connection with any
advisory and sub-advisory agreements of Seller
(collectively, the "Shareholder Approvals"). The
execution, delivery and performance of this Agreement by
Seller and the consummation by Seller of the transactions
contemplated hereby in accordance with and subject to the
terms of this Agreement have been duly authorized by the
Board of Directors of Seller. Subject to the approval of
Seller's shareholders and subject to the receipt of such
approvals of the Regulatory Authorities as may be
required by statute or regulation, this Agreement is a
valid and binding obligation of Seller enforceable
against Seller in accordance with its terms.
(b) Except as disclosed in Schedule 2.04(b),
----------------
neither the execution nor delivery nor performance by
Seller of this Agreement, nor the consummation by Seller
of the transactions contemplated hereby, nor compliance
by Seller with any of the provisions hereof, will (i)
violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination
of, or accelerate the performance required by, or result
in a right of termination or acceleration of, or result
in the creation of, any lien, claim, charge, option,
encumbrance, agreement, mortgage, pledge, security
interest or restriction (a "Lien") upon any of the
properties or assets of Seller under any of the terms,
conditions or provisions of (x) its Articles of
Incorporation or Bylaws or (y) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which Seller is a party
or by which it may be bound, or to which Seller or any of
the properties or assets of Seller may be subject, or
(ii) subject to compliance with the statutes and
regulations referred to in subsection (c) of this Section
2.04 violate any judgment, ruling, order, writ,
injunction, decree, statute, rule or regulation
applicable to Seller or any of its respective properties
or assets; other than violations, conflicts, breaches,
defaults, terminations, accelerations or Liens which
would not have a Material Adverse Effect on Seller.
(c) Other than in connection or in compliance
with the provisions of the Kentucky Statute, Chapter 287
of the Kentucky Revised Statutes ("Chapter 287"), the
Securities Act of 1933, as amended, and the rules and
regulations thereunder (the "Securities Act"), the
Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (the "Exchange Act"),
the securities or blue sky laws of the various states,
the 1940 Act, or filings, consents, reviews,
authorizations, approvals or exemptions required of any
other governmental agencies or governing boards having
regulatory authority over Seller, no notice to, filing
with, exemption or review by, or authorization, consent
or approval of, any public body or authority is necessary
for the consummation by Seller of the transactions
contemplated by this Agreement.
- 6 -
11
2.05. Seller Financial Statements.
---------------------------
(a) Attached hereto as Schedule 2.05(a) are
----------------
copies of the following documents: (i) Seller's audited
balance sheet, income statement, statement of changes in
shareholders' equity and cash flow as of or for the year
ended December 31, 1996; and (ii) Seller's unaudited
balance sheet, income statement, statement of changes in
shareholders' equity and cash flow as of or for the three
months ended March 31, 1997;
(b) The financial statements contained in the
document referenced in Schedule 2.05(a) are referred to
----------------
collectively as the "Seller Financial Statements." The
Seller Financial Statements have been prepared in
accordance with generally accepted accounting principles
("GAAP"), and present fairly the consolidated financial
position of Seller at the dates thereof and the
consolidated results of operations, changes in
shareholders' equity and cash flows of Seller for the
periods stated therein.
(c) Seller has prepared, kept and maintained
through the date hereof true, correct and complete
financial and other books and records of its affairs
which fairly reflect its financial conditions, results of
operations, changes in shareholders' equity and cash
flows.
2.06. Seller Reports. Since January 1, 1994, Seller
--------------
has timely filed all material reports, registrations and
statements, together with any required amendments thereto, that it
was required to file with (i) the SEC, (ii) National Association of
Securities Dealers, Inc. (the "NASD"), (iii) any federal, state,
municipal or local government, securities, banking, insurance and
other governmental or regulatory authority, and the agencies and
staffs thereof (the entities in the foregoing clauses (i) through
(iii) being referred to herein collectively as the "Regulatory
Authorities" and individually as a "Regulatory Authority"), having
jurisdiction over the affairs of it. All such material reports and
statements filed with any such Regulatory Authority are
collectively referred to herein as the "Seller Reports." As of
each of their respective dates, the Seller Reports complied in all
material respects with all the rules and regulations promulgated by
the applicable Regulatory Authority. With respect to Seller
Reports filed with the Regulatory Authorities, there is no material
unresolved violation, criticism or exception by any Regulatory
Authority with respect to any report or statement filed by, or any
examinations of, Seller.
2.07. Title to and Condition of Assets.
--------------------------------
(a) Except as may be reflected in the Seller
Financial Statements and with the exception of all "Real
Property" (which is the subject of Section 2.08 hereof)
Seller has, and at the Closing Date will have, good and
marketable title to its owned properties and assets,
including, without limitation, those reflected in the
Seller Financial Statements (except those disposed of in
the ordinary course of business since the date thereof),
free and clear of any Lien, except for Liens for (i)
taxes, assessments or other governmental charges not yet
delinquent and (ii) as set forth or described in the
Seller Financial Statements or any subsequent Seller
Financial Statements delivered to Buyers prior to the
Effective Time.
(b) No material properties or assets that are
reflected as owned by Seller in the Seller Financial
Statements as of December 31, 1996 have been sold,
leased, transferred, assigned or otherwise disposed of
since such date, except in the ordinary course of
business.
- 7 -
12
(c) All furniture, fixtures, vehicles,
machinery and equipment and computer software owned or
used by Seller, including any such items leased as a
lessee (taken as a whole as to each of the foregoing with
no single item deemed to be of material importance) are
in good working order and free of known defects, subject
only to normal wear and tear. The operation by Seller of
such properties and assets is in compliance in all
material respects with all applicable laws, ordinances
and rules and regulations of any governmental authority
having jurisdiction over such use.
2.08. Real Property.
-------------
(a) The legal description of each parcel of real
property owned by Seller is set forth in Schedule 2.08(a)
----------------
under the heading "Owned Real Property" (such real property
being herein referred to as the "Owned Real Property"). The
legal description of each parcel of real property leased by
Seller is also set forth in Schedule 2.08(a) under the
----------------
heading "Leased Real Property" (such real property being
herein referred to as the "Leased Real Property").
Collectively, the Owned Real Property and the Leased Real
Property is herein referred to as the "Real Property."
(b) There is no pending action involving
Seller as to the title of or the right to use any of the
Real Property.
(c) Seller has no interest in any other real
property.
(d) None of the buildings, structures or other
improvements located on the Real Property encroaches upon
or over any adjoining parcel of real estate or any
easement or right-of-way or "setback" line in any
material respect and all such buildings, structures and
improvements are in all material respects located and
constructed in conformity with all applicable zoning
ordinances and building codes.
(e) None of the buildings, structures or
improvements located on the Owned Real Property are the
subject of any official complaint or notice by any
governmental authority of violation of any applicable
zoning ordinance or building code, and there is no zoning
ordinance, building code, use or occupancy restriction or
condemnation action or proceeding pending, or, to the
best knowledge of Seller, threatened, with respect to any
such building, structure or improvement. The Owned Real
Property is in generally good condition for its intended
purpose, ordinary wear and tear excepted, and has been
maintained in accordance with reasonable and prudent
business practices applicable to like facilities.
(f) Except as may be reflected in the Seller
Financial Statements or with respect to such easements,
Liens, defects or encumbrances as do not individually or
in the aggregate materially adversely affect the use or
value of the parcel of Owned Real Property, Seller has,
and at the Closing Date will have, good and marketable
title to the Owned Real Properties.
2.09. Taxes. Seller has timely filed or will timely
-----
file (including extensions) all material tax returns required to be
filed at or prior to the Closing Date ("Seller Returns"). Seller
has paid, or set up adequate reserves on the Seller Financial
Statements for the payment of, all taxes required to be paid in
respect of the periods covered by such Seller Returns and has set
up adequate reserves on the most recent Seller Financial Statements
for the payment of all taxes anticipated to be payable in respect
of all
- 8 -
13
periods up to and including the latest period covered by such Seller
Financial Statements. Seller has no liability material to the
Condition of Seller for any such taxes in excess of the amounts so
paid or reserves so established, and no material deficiencies for any
tax, assessment or governmental charge have been proposed, asserted or
assessed (tentatively or definitely) against Seller which would not be
covered by existing reserves. Seller is not delinquent in the payment
of any tax, assessment or governmental charge, nor has it requested
any extension of time within which to file any tax returns in respect
of any fiscal year which have not since been filed and no requests for
waivers of the time to assess any tax are pending. No federal or
state income tax return of Seller has been audited by the Internal
Revenue Service (the "IRS") or any state tax authority for the seven
(7) most recent full calendar years. There is no deficiency or refund
litigation or, to the best knowledge of Seller, matter in controversy
with respect to Seller Returns. Seller has not extended or waived any
statute of limitations on the assessment of any tax due that is
currently in effect.
2.10. Material Adverse Effect. Since December 31,
-----------------------
1996, there has been no Material Adverse Effect on Seller.
2.11. Loans, Commitments and Contracts.
--------------------------------
(a) Except as listed on Schedule 2.11(a), as
----------------
of the date hereof Seller is not a party to or is not
bound by any:
(i) agreement, contract, arrangement,
understanding or commitment with any labor
union;
(ii) franchise or license agreement;
(iii) written employment, severance,
termination pay, agency, consulting or similar
agreement or commitment in respect of personal
services;
(iv) material agreement, arrangement or
commitment (A) not made in the ordinary course
of business, and (B) pursuant to which Seller
is or may become obligated to invest in or
contribute to and agreements relating to joint
ventures or partnerships set forth in Schedule
--------
2.02, true and complete copies of which have
----
been furnished to Buyers;
(v) agreement, indenture or other
instrument not disclosed in the Seller
Financial Statements relating to the borrowing
of money by Seller or the guarantee by Seller
of any such obligation (other than trade
payables or instruments related to
transactions entered into in the ordinary
course of business by Seller;
(vi) contract containing covenants
which limit the ability of Seller to compete
in any line of business or with any person or
which involves any restrictions on the
geographical area in which, or method by
which, Seller may carry on its business (other
that as may be required by law or any
applicable Regulatory Authority);
(vii) contract or agreement which is a
"material contract" within the meaning of Item
601(b)(10) of Regulation S-K as promulgated by
the SEC to be
- 9 -
14
performed after the date of this Agreement
that has not been filed or incorporated by
reference in the Seller Reports;
(viii) lease with annual rental payments
aggregating $10,000 or more;
(ix) loans or other obligations payable
or owing to any officer, director or employee
except salaries, wages and directors' fees or
other compensation incurred and accrued in the
ordinary course of business;
(x) other agreement, contract,
arrangement, understanding or commitment
involving an obligation by Seller of more than
$25,000 and extending beyond six months from
the date hereof that cannot be cancelled
without cost or penalty upon notice of 30 days
or less; or
(xi) investment advisory agreements
(within the meaning of the 1940 Act).
(b) Seller carries property, liability,
director and officer errors and omissions, products
liability and other insurance coverage as set forth in
Schedule 2.11(b) under the heading "Insurance."
----------------
(c) True, correct and complete copies of the
agreements, contracts, leases, insurance policies and
other documents referred to in Sections 2.11(a) and (b)
------------------------
have been included with Schedule 2.11(a) hereto.
----------------
(d) To the best knowledge of Seller, each of
the agreements, contracts, leases, insurance policies and
other documents referred to in Schedules 2.11 (a) and (b)
--------------------------
is a valid, binding and enforceable obligation of the
parties sought to be bound thereby, except as the
enforceability thereof against the parties thereto (other
than Seller) may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws now or
hereafter in effect relating to the enforcement of
creditors' rights generally, and except that equitable
principles may limit the right to obtain specific
performance or other equitable remedies.
2.12. Absence of Defaults. Seller is not in
-------------------
violation of its charter documents or Bylaws or in default under
any material agreement, commitment, arrangement, lease, insurance
policy or other instrument, whether entered into in the ordinary
course of business or otherwise and whether written or oral, and
there has not occurred any event that, with the lapse of time or
giving of notice or both, would constitute such a default, except,
in all cases, where such violation or default would not have a
Material Adverse Effect on Seller.
2.13. Litigation and Other Proceedings. Except
--------------------------------
as set forth on Schedule 2.13 or otherwise disclosed in the Seller
-------------
Financial Statements, Seller is not a party to any pending or, to
the best knowledge of Seller, threatened claim, action, suit,
investigation or proceeding, or is subject to any order, judgment
or decree, except for matters which, in the aggregate, will not
have, or reasonably could not be expected to have, a Material
Adverse Effect on Seller.
2.14. Directors' and Officers' Insurance. Seller
----------------------------------
has taken or will take all requisite action (including, without
limitation, the making of claims and the giving of notices)
pursuant to its directors' and officers' liability insurance policy
or policies in order to preserve all rights thereunder with respect
- 10 -
15
to all matters (other than matters arising in connection with this
Agreement and the transactions contemplated hereby) occurring prior
to the Effective Time that are known to Seller, except for such
matters which, individually or in the aggregate, will not have and
reasonably could not be expected to have a Material Adverse Effect
on Seller.
2.15. Compliance with Laws.
--------------------
(a) To the best knowledge of Seller, Seller
has all permits, licenses, authorizations, orders and
approvals of, and have made all filings, applications and
registrations with, all Regulatory Authorities that are
required in order to permit it to own or lease its
properties and assets and to carry on its business as
presently conducted; all such permits, licenses,
certificates of authority, orders and approvals are in
full force and effect and no suspension or cancellation
of any of them is threatened; and all such filings,
applications and registrations are current; in each case
except for permits, licenses, authorizations, orders,
approvals, filings, applications and registrations the
failure to have (or have made) would not have a Material
Adverse Effect on Seller.
(b) (i) Seller has complied with all laws,
regulations and orders (including, without limitation,
zoning ordinances, building codes, the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), and securities, tax, environmental, civil
rights, and occupational health and safety laws and
regulations including, without limitation, all statutes,
rules, regulations and policy statements pertaining to
the exercise of trust powers) and governing instruments
applicable to it and to the conduct of its business,
except where such failure to comply would not have a
Material Adverse Effect on Seller, and (ii) Seller is not
in default under, and no event has occurred which, with
the lapse of time or notice or both, could result in the
default under, the terms of any judgment, order, writ,
decree, permit, or license of any Regulatory Authority or
court, whether federal, state, municipal or local, and
whether at law or in equity, except where such default
would not have a Material Adverse Effect on Seller.
(c) Seller is not subject to or reasonably
likely to incur a liability as a result of its ownership,
operation, or use of any Property (as defined below) of
Seller (A) that is contaminated by or contains any
hazardous waste, toxic substance or related materials,
including, without limitation, asbestos, PCBs,
pesticides, herbicides and any other substance or waste
that is hazardous to human health or the environment
(collectively, a "Toxic Substance"), or (B) on which any
Toxic Substance has been stored, disposed of, placed or
used in the construction thereof; and which, in each
case, reasonably could be expected to have a Material
Adverse Effect on Seller. "Property" shall include all
property (real or personal, tangible or intangible) owned
or controlled by Seller, including, without limitation,
property in which any venture capital or similar unit of
Seller has an interest and, to the best knowledge of
Seller, property held by Seller in its capacity as a
trustee. No claim, action, suit or proceeding is pending
and no material claim has been asserted against Seller
relating to Property of Seller before any court or other
Regulatory Authority or arbitration tribunal relating to
Toxic Substances, pollution or the environment, and there
is no outstanding judgment, order, writ, injunction,
decree or award against or affecting Seller with respect
to the same. Except for statutory or regulatory
restrictions of general application, no Regulatory
Authority has placed any restriction on the business of
Seller which reasonably could be expected to have a
Material Adverse Effect on Seller.
- 11 -
16
(d) Since December 31, 1994, Seller has not
received any notification or communication which has not
been resolved from any Regulatory Authority (i) asserting
that any Seller is not in substantial compliance with any
of the statutes, regulations or ordinances that such
Regulatory Authority enforces, except with respect to
matters which reasonably could not be expected to have a
Material Adverse Effect on Seller (ii) threatening to
revoke any license, franchise, permit or governmental
authorization that is material to the Condition of
Seller, (iii) requiring or threatening to require Seller,
or indicating that Seller may be required, to enter into
a cease and desist order, agreement or memorandum of
understanding or any other agreement restricting or
limiting or purporting to direct, restrict or limit in
any manner the operations of Seller including, without
limitation, any restriction on the payment of dividends.
No such cease and desist order, agreement or memorandum
of understanding or other agreement is currently in
effect.
2.16. Labor. No work stoppage involving Seller is
-----
pending or, to the best knowledge of Seller, threatened. Seller is
not involved in, or, to the best knowledge of Seller, threatened
with or affected by, any labor dispute, arbitration, lawsuit or
administrative proceeding which reasonably could be expected to
have a Material Adverse Effect on Seller. None of the employees of
Seller are represented by any labor union or any collective
bargaining organization.
2.17. Material Interests of Certain Persons. No
-------------------------------------
officer or director of Seller, or any "associate" (as such term is
defined in Rule 14a-1 under the Exchange Act) of any such officer
or director, has any interest in any contract or property (real or
personal, tangible or intangible), used in, or pertaining to the
business of, Seller, which in the case of Seller would be required
to be disclosed by Item 404 of Regulation S-K promulgated by the
SEC.
2.18. Employee Benefit Plans.
----------------------
(a) Schedule 2.18(a) lists all pension,
----------------
retirement, supplemental retirement, stock option, stock
purchase, stock ownership, savings, stock appreciation
right, profit sharing, deferred compensation, consulting,
bonus, medical, disability, workers' compensation,
vacation, group insurance, severance and other employee
benefit, incentive and welfare policies, contracts, plans
and arrangements, and all trust agreements related
thereto, maintained by or contributed to by Seller in
respect of any of the present or former directors,
officers, or other employees of and/or consultants to
Seller (collectively, "Seller Employee Plans"). Seller
has furnished Buyers with the following documents with
respect to each Seller Employee Plan: (i) a true and
complete copy of all written documents comprising such
Seller Employee Plan (including amendments and individual
agreements relating thereto) or, if there is no such
written document, an accurate and complete description of
the Seller Employee Plan; (ii) the most recently filed
Form 5500 or Form 5500-C/R (including all schedules
thereto), if applicable; (iii) the most recent financial
statements and actuarial reports, if any; (iv) the
summary plan description currently in effect and all
material modifications thereof, if any; and (v) the most
recent IRS determination letter, if any.
(b) All Seller Employee Plans have been
maintained and operated in all material respects in
accordance with their terms and the requirements of all
applicable statutes, orders, rules and final regulations,
including, without limitation, to the extent applicable,
ERISA and the Code. All contributions required to be
made to Seller Employee Plans have been made or reserved.
- 12 -
17
(c) With respect to each of the Seller
Employee Plans which is a pension plan (as defined in
Section 3(2) of ERISA) (the "Pension Plans"): (i) each
Pension Plan which is intended to be "qualified" within
the meaning of Section 401(a) of the Code has been
determined to be so qualified by the IRS and such
determination letter may still be relied upon, and each
related trust is exempt from taxation under Section
501(a) of the Code; (ii) the present value of all
benefits vested and all benefits accrued under each
Pension Plan which is subject to Title IV of ERISA did
not, in each case, as of the last applicable annual
valuation date (as indicated on Schedule 2.18(a)), exceed
----------------
the value of the assets of the Pension Plan allocable to
such vested or accrued benefits; (iii) there has been no
"prohibited transaction," as such term is defined in
Section 4975 of the Code or Section 406 of ERISA, which
could subject any Pension Plan or associated trust, or
Seller, to any tax or penalty; (iv) no Pension Plan or
any trust created thereunder has been terminated, nor has
there been any "reportable events" with respect to any
Pension Plan, as that term is defined in Section 4043 of
ERISA since January 1, 1989; and (v) no Pension Plan or
any trust created thereunder has incurred any
"accumulated funding deficiency", as such term is defined
in Section 302 of ERISA (whether or not waived). No
Pension Plan is a "multiemployer plan" as that term is
defined in Section 3(37) of ERISA.
(d) Seller has no liability for any post-
retirement health, medical or similar benefit of any kind
whatsoever, except as required by statute or regulation.
(e) Seller has no material liability under
ERISA or the Code as a result of its being a member of a
group described in Sections 414(b), (c), (m) or (o) of
the Code.
(f) Neither the execution nor delivery of this
Agreement, nor the consummation of any of the
transactions contemplated hereby, will (i) result in any
payment (including, without limitation, severance,
unemployment compensation or golden parachute payment)
becoming due to any director or employee of Seller from
any of such entities, (ii) increase any benefit otherwise
payable under any of the Seller Employee Plans or (iii)
result in the acceleration of the time of payment of any
such benefit. Seller shall use its best efforts to
insure that no amounts paid or payable by Seller, or
Buyers to or with respect to any employee or former
employee of Seller will fail to be deductible for federal
income tax purposes by reason of Section 280G of the
Code.
2.19. Conduct of Seller to Date. From and after
-------------------------
December 31, 1996 through the date of this Agreement, except as set
forth in the Seller Financial Statements: (i) Seller has conducted
its business in the ordinary and usual course consistent with past
practices; (ii) Seller has not issued, sold, granted, conferred or
awarded any of its Equity Securities, or any corporate debt
securities which would be classified under GAAP as long-term debt
on the balance sheets of Seller; (iii) Seller has not effected any
stock split or adjusted, combined, reclassified or otherwise
changed its capitalization; (iv) Seller has not declared, set aside
or paid any dividend (other than its regular quarterly dividends)
or other distribution in respect of its capital stock, or
purchased, redeemed, retired, repurchased or exchanged, or
otherwise acquired or disposed of, directly or indirectly, any of
its Equity Securities, whether pursuant to the terms of such Equity
Securities or otherwise; (v) Seller has not incurred any obligation
or liability (absolute or contingent), except liabilities incurred
in the ordinary course of business, or subjected to Lien any of its
assets or properties other than in the ordinary course of business
consistent with past practice; (vi) Seller has not discharged or
satisfied any Lien or paid any obligation or liability (absolute or
contingent), other than in the ordinary course of business; (vii)
Seller has not sold, assigned, transferred, leased, exchanged, or
otherwise disposed of any of its properties or assets other than
for a fair consideration in the ordinary course of business; (viii)
except as required by contract or law, Seller has
- 13 -
18
not (A) increased the rate of compensation of, or paid any bonus to,
any of its directors, officers, or other employees, except in
accordance with existing policy, (B) entered into any new, or amended
or supplemented any existing, employment, management, consulting,
deferred compensation, severance, or other similar contract, (C)
entered into, terminated, or substantially modified any of the Seller
Employee Plans or (D) agreed to do any of the foregoing; (ix) Seller
has not suffered any material damage, destruction, or loss, whether as
the result of fire, explosion, earthquake, accident, casualty, labor
trouble, requisition, or taking of property by any Regulatory
Authority, flood, windstorm, embargo, riot, act of God or the enemy,
or other casualty or event, and whether or not covered by insurance;
(x) Seller has not cancelled or compromised any debt; and (xi) Seller
has not entered into any material transaction, contract or commitment
outside the ordinary course of its business.
2.20. Absence of Undisclosed Liabilities.
----------------------------------
(a) As of the date of this Agreement, Seller
has no debts, liabilities or obligations equal to or
exceeding $5,000, individually or $25,000 in the
aggregate, whether accrued, absolute, contingent or
otherwise and whether due or to become due, which are
required to be reflected in the Seller Financial
Statements or the notes thereto in accordance with GAAP
except:
(i) liabilities and obligations
reflected on the Seller Financial Statements;
(ii) operating leases reflected on
Schedule 2.11; and
-------------
(iii) debts, liabilities or obligations
incurred since December 31, 1996 in the
ordinary and usual course of their respective
businesses, none of which are for breach of
contract, breach of warranty, torts,
infringements or lawsuits and none of which
have a Material Adverse Effect on Seller.
(b) Seller was not as of December 31, 1996,
and since such date to the date hereof, has not become a
party to, any contract or agreement, which had, has or
may be reasonably expected to have a Material Adverse
Effect on Seller.
2.21. Proxy Statement, Etc. None of the information
---------------------
regarding Seller to be supplied by Seller for inclusion or included
in (i) the Proxy Statement to be mailed to Seller's shareholders in
connection with the meeting to be called to consider this Agreement
and the Merger (the "Proxy Statement"), (ii) the Registration
Statement (as defined in Section 5.02 hereof) or (iii) any other
documents to be filed with any Regulatory Authority in connection
with the transactions contemplated hereby will, at the respective
times such documents are filed with any Regulatory Authority and,
with respect to the Proxy Statement, when mailed, be false or
misleading with respect to any material fact, or omit to state any
material fact necessary in order to make the statements therein not
misleading or, in the case of the Proxy Statement or any amendment
thereof or supplement thereto, at the time of the meeting of
Seller's shareholders referred to in Section 5.03, be false or
misleading with respect to any material fact, or omit to state any
material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for
such meeting. All documents which Seller is responsible for filing
with any Regulatory Authority in connection with the Merger will
comply as to form in all material respects with the provisions of
applicable law.
- 14 -
19
2.22. Registration Obligations. Seller is not
------------------------
under any obligation, contingent or otherwise, which will survive the
Effective Time by reason of any agreement to register any
transaction involving any of its securities under the Securities
Act.
2.23. Tax and Regulatory Matters. Seller has not
--------------------------
taken or agreed to take any action or has any knowledge of any fact
or circumstance that would (i) prevent the transactions
contemplated hereby from qualifying as a reorganization within the
meaning of Section 368 of the Code or (ii) materially impede or
delay receipt of any approval referred to in Section 6.01(b) or the
consummation of the transactions contemplated by this Agreement.
2.24. Intellectual Property; Patents; Trademarks;
-------------------------------------------
Trade Names. All patents, trademarks, service marks, trade names
-----------
or copyrights owned by or used or proposed to be used by Seller and
all applications or registrations therefor ("Intellectual
Property") and all contracts, agreements, commitments and
understandings relating to the use or license of technology, know-
how or processes by Seller (the "Intellectual Property Licenses")
are listed in Schedule 2.24. Except as disclosed in Schedule 2.24:
------------- -------------
(a) Seller owns, or has the sole and exclusive right to use, all
Intellectual Property, whether under Intellectual Property Licenses
or otherwise, used in or necessary for the ordinary conduct of its
business; (b) the consummation of the transactions contemplated by
this Agreement will not alter or impair any such rights; and (c) no
Intellectual Property owned, licensed or used by Seller, or
Intellectual Property License of Seller is the subject of a lawsuit
or any other proceeding, nor has any party challenged or, to the
best of Seller's knowledge, threatened to challenge Seller's right
to use such Intellectual Property or Intellectual Property License
or application for any of the foregoing; and, to the best of
Seller's knowledge, there is no basis for any such challenge.
2.25. Bank Accounts. Schedule 2.25 lists all bank,
------------- -------------
money market, savings and similar accounts and safe deposit boxes
of Seller, specifying the account numbers and the authorized
signatories or persons having access to them.
2.26. Transactions with Affiliates. Except as
----------------------------
disclosed in Schedule 2.26, no shareholder of Seller or any person
-------------
controlled by some combination of any shareholder of Seller, no
officer or director of Seller, or any "affiliate" or "associate"
(as such terms are defined in the rules and regulations of the SEC
under the Securities Act) of any of the foregoing:
(a) has been a party to any lease, sublease,
contract, agreement, commitment, understanding or other
arrangement of any kind whatsoever, involving any such
person and Seller that is not disclosed in Schedule 2.26;
-------------
(b) owns directly or indirectly, in whole or
in part, any property that Seller uses or otherwise has
rights in respect of; or
(c) has any cause of action or other claim
whatsoever against, or owes any amount to, Seller other
than (i) for compensation (including fringe benefits) to
officers and employees of Seller and for the
reimbursement of ordinary and necessary expenses incurred
in connection with employment by Seller and (ii) as
otherwise disclosed pursuant to this Agreement.
2.27. Brokers and Finders. Neither Seller nor
-------------------
any of its officers, directors or employees has employed any broker or
finder or incurred any liability for any financial advisory fees,
brokerage fees, commissions or finder's fees, and no broker or
finder has acted directly or indirectly for Seller in connection
with this Agreement or the transactions contemplated hereby.
- 15 -
20
2.28. Accuracy of Information. The statements
-----------------------
contained in this Agreement, the Schedules and any other written
document executed and delivered by or on behalf of Seller pursuant
to the terms of this Agreement are true and correct as of the date
hereof or as of the date delivered in all material respects, and
such statements and documents do not omit any material fact
necessary to make the statements contained therein not misleading.
ARTICLE III
-----------
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYERS
As an inducement to Seller to enter into and perform its
obligations under this Agreement, and notwithstanding any examina-
tion, inspection, audit or other investigation made by Seller,
Buyers jointly and severally represent and warrant to and covenant
with Seller as follows:
3.01. Organization and Authority. Buyer and Merger
--------------------------
Sub are each corporations duly organized, validly existing and in
good standing under the laws of the States of Delaware and
Kentucky, respectively, are each qualified to do business and are
each in good standing in all jurisdictions where its ownership or
leasing of property or the conduct of its business requires it to
be so qualified and has corporate power and authority to own its
properties and assets and to carry on its business as it is now
being conducted, except where the failure to be so qualified would
not have a Material Adverse Effect on Unified and its Subsidiaries,
taken as a whole.
3.02. Capitalization of Unified. The authorized
-------------------------
capital stock of Unified consists of (i) 300,000 shares of Unified
Common Stock and (ii) 1,000,000 shares of preferred stock, $0.01
par value ("Unified Preferred Stock"). As of the date hereof,
17,069 shares of Unified Preferred Stock were issued and
outstanding and, as of the Closing Date, excluding shares of
Unified Common Stock to be issued in connection with the Merger,
the pending acquisition of Health Financial, Inc. and any
acquisition transaction by Unified that is announced after the date
hereof, 300,000 shares of Unified Common Stock will be issued and
outstanding. Unified has designated 10,000 shares of Unified
Preferred Stock as "Series A 8% Cumulative Preferred Stock," of
which 8,486 shares are issued and outstanding, and 10,000 shares of
Unified Preferred Stock as "Series B 8% Cumulative Preferred
Stock," of which 8,583 shares were issued and outstanding. As of
the date hereof, Unified had no shares of Unified Common Stock
reserved for issuance under various Unified employee and/or
director stock option, incentive and/or benefit plans ("Unified
Employee/Director Stock Grants"). Seller hereby acknowledges that
Unified anticipates filing with the Secretary of State of the State
of Delaware, prior to the Effective Time, documents to effect (i)
a change of the par value of the Unified Common Stock to $0.01,
(ii) an increase in the number of shares of Unified Common Stock
authorized to 25,000,000 and (iii) a possible reduction in the
number of shares of Unified Preferred Stock authorized to a number
equal to or greater than the number currently outstanding. In
addition, Seller hereby acknowledges that Unified may effect a two-
for-one stock split prior to the Effective Time, which split would
increase the number of shares of Unified Common Stock then issued
and outstanding to 600,000.
Unified continually evaluates possible acquisitions
and may prior to the Effective Time enter into one or more agreements
providing for, and may consummate, the acquisition by it of another
company (or the assets thereof) for consideration that may include
Equity Securities. In addition, prior to the Effective Time,
Unified may, depending on market conditions and other factors,
otherwise determine to issue equity, equity-linked or other
securities for financing purposes or repurchase its outstanding
Equity Securities. Notwithstanding the foregoing, neither Unified
nor any Unified Subsidiary has taken or agreed to take any action
or has any knowledge of any fact or circumstance and neither
Unified nor Merger Sub will take any action that would (i) prevent
the transactions contemplated hereby
- 16 -
21
from qualifying as a reorganization within the meaning of Section 368
of the Code or (ii) materially impede or delay receipt of any approval
referred to in Section 6.01(b) or the consummation of the transactions
contemplated by this Agreement. Except as set forth above, there
are no other Equity Securities of Unified outstanding. All of the
issued and outstanding shares of Unified Common Stock are validly
issued, fully paid, and nonassessable, and have not been issued in
violation of any preemptive right of any shareholder of Unified.
At the Effective Time, the Unified Common Stock to be issued in the
Merger will be duly authorized, validly issued, fully paid and
nonassessable, will not be issued in violation of any preemptive
right of any shareholder of Unified.
3.03. Authorization.
-------------
(a) Unified and Merger Sub each have the
corporate power and authority to enter into this
Agreement and to carry out their respective obligations
hereunder. The execution, delivery and performance of
this Agreement by Unified and Merger Sub and the
consummation by Unified and Merger Sub of the
transactions contemplated hereby have been duly
authorized by all requisite corporate action of Unified
and Merger Sub. Subject to the receipt of such approvals
of the Regulatory Authorities as may be required by
statute or regulation, this Agreement is a valid and
binding obligation of Unified and Merger Sub enforceable
against each in accordance with its terms.
(b) Neither the execution, delivery and
performance by Unified and Merger Sub of this Agreement,
nor the consummation by Unified and Merger Sub of the
transactions contemplated hereby, nor compliance by
Unified and Merger Sub with any of the provisions hereof,
will (i) violate, conflict with or result in a breach of
any provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would
constitute a default) or result in the termination of, or
accelerate the performance required by, or result in a
right of termination or acceleration of, or result in the
creation of, any Lien upon any of the properties or
assets of Unified or Merger Sub under any of the terms,
conditions or provisions of (x) their respective Articles
of Incorporation or Bylaws, or (y) any note, bond,
mortgage, indenture, deed of trust, license, lease,
agreement or other instrument or obligation to which
Unified or Merger Sub is a party or by which they may be
bound, or to which Unified or Merger Sub or any of their
respective properties or assets may be subject, or (ii)
subject to compliance with the statutes and regulations
referred to in subsection (c) of this Section 3.03,
violate any judgment, ruling, order, writ, injunction,
decree, statute, rule or regulation applicable to Unified
or Merger Sub or any of their respective properties or
assets; other than violations, conflicts, breaches,
defaults, terminations, accelerations or Liens which
would not have a Material Adverse Effect on Unified and
its Subsidiaries, taken as a whole.
(c) Other than in connection with or in
compliance with the provisions of the Kentucky Statute,
Chapter 287, the Securities Act, the Exchange Act, the
1940 Act, the securities or blue sky laws of the various
states or any required approvals of any other Regulatory
Authority, no notice to, filing with, exemption or review
by, or authorization, consent or approval of, any public
body or authority is necessary for the consummation by
Unified and Merger Sub of the transactions contemplated
by this Agreement.
3.04. Unified Financial Statements. The consolidated
----------------------------
balance sheet of Unified and its Subsidiaries as of December 31,
1996 and 1995 and related consolidated statements of income,
changes in shareholders' equity and cash flows for each of the
three years in the period ended December 31,
- 17 -
22
1996, together with the notes thereto, audited by Xxxxx X. Xxxx
Associates, L.L.C. (collectively, the "Unified Financial Statements"),
have been prepared in accordance with GAAP, present fairly the
consolidated financial position of Unified and its Subsidiaries at the
dates thereof and the consolidated results of operations, changes in
shareholders' equity and cash flows of Unified and its Subsidiaries
for the periods stated therein and are derived from the books and
records of Unified and its Subsidiaries, which are complete and
accurate in all material respects and have been maintained in
accordance with good business practices. Neither Unified nor any
of its Subsidiaries has any material contingent liabilities that
are not described in the Unified Financial Statements.
3.05. Unified Reports. Since January 1, 1994, each
---------------
of Unified and its Subsidiaries has filed all reports, registra-
tions and statements, together with any required amendments
thereto, that it was required to file with any Regulatory
Authority. All such reports and statements filed with any such
Regulatory Authority are collectively referred to herein as the
"Unified Reports." As of its respective date, each Unified Report
complied in all material respects with all the rules and
regulations promulgated by the applicable Regulatory Authority and
did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
3.06. Material Adverse Effect. Since December 31,
-----------------------
1996, there has been no Material Adverse Effect on Unified and its
Subsidiaries, taken as a whole.
3.07. Legal Proceedings or Other Adverse Facts.
----------------------------------------
Except as otherwise disclosed in the Unified Financial Statements,
neither Unified nor any of its Subsidiaries is a party to any
pending or, to the best knowledge of Unified, threatened claim,
action, suit, investigation or proceeding, or is subject to any
order, judgment or decree, except for matters which, in the
aggregate, will not have, or reasonably could not be expected to
have, a Material Adverse Effect on Unified and its Subsidiaries,
taken as a whole.
3.08. Proxy Statement, Etc. None of the information
---------------------
regarding Unified or any of its Subsidiaries to be supplied by
Buyers for inclusion or included in (i) the Proxy Statement or (ii)
any other documents to be filed with any Regulatory Authority in
connection with the transactions contemplated hereby will, at the
respective times such documents are filed with any Regulatory
Authority and, with respect to the Proxy Statement, when mailed, be
false or misleading with respect to any material fact, or omit to
state any material fact necessary in order to make the statements
therein not misleading or, in the case of the Proxy Statement or
any amendment thereof or supplement thereto, at the time of the
meeting of shareholders referred to in Section 5.03, be false or
misleading with respect to any material fact, or omit to state any
material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of any proxy for
such meeting. All documents which Unified or Merger Sub are
responsible for filing with any Regulatory Authority in connection
with the Merger will comply as to form in all material respects
with the provisions of applicable law.
3.09. Brokers and Finders. Neither Unified, Merger
-------------------
Sub nor any of their respective officers, directors or employees
has employed any broker or finder or incurred any liability for any
financial advisory fees, brokerage fees, commissions or finder's
fees, and no broker or finder has acted directly or indirectly for
Unified or Merger Sub in connection with this Agreement or the
transactions contemplated hereby.
3.10. Accuracy of Information. The statements
-----------------------
contained in this Agreement, the Schedules and in any other written
document executed and delivered by or on behalf of Buyers pursuant
to the terms of this Agreement are true and correct in all material
respects, and such statements and
- 18 -
23
documents do not omit any material fact necessary to make the
statements contained herein or therein not misleading.
ARTICLE IV
----------
CONDUCT OF BUSINESSES PRIOR TO THE EFFECTIVE TIME
4.01. Conduct of Businesses Prior to the Effective
--------------------------------------------
Time. During the period from the date of this Agreement to the
----
Effective Time, Seller shall, conduct its business according to the
ordinary and usual course consistent with past practices and shall
use its best efforts to maintain and preserve its business
organization, employees and advantageous business relationships and
retain the services of its officers and key employees.
4.02. Forbearances of Seller. Except to the extent
----------------------
required by law, regulation or Regulatory Authority, or with the
prior written consent of Buyers (unless otherwise specifically
noted in this Section 4.02), during the period from the date of
this Agreement to the Effective Time, Seller shall not:
(a) declare, set aside or pay any dividends or
other distributions, directly or indirectly, in respect
of its capital stock;
(b) enter into or amend any employment,
severance or similar agreement or arrangement with any
director, officer or employee, or materially modify any
of the Seller Employee Plans or grant any salary or wage
increase or materially increase any employee benefit
(including incentive or bonus payments), except (i)
normal individual increases in compensation to employees
consistent with past practice, (ii) as required by law or
contract and (iii) such increases of which Seller
notifies Buyers in writing and which Buyers do not
disapprove within 10 days of the receipt of such notice;
(c) authorize, recommend, propose or announce
an intention to authorize, recommend or propose, or enter
into an agreement in principle with respect to, any
merger, consolidation or business combination (other than
the Merger), any acquisition of a material amount of
assets or securities, any disposition of a material
amount of assets or securities or any release or
relinquishment of any material contract rights;
(d) propose or adopt any amendments to its
Articles of Incorporation or other charter document or
Bylaws;
(e) issue, sell, grant, confer or award any of
its Equity Securities or effect any stock split or
adjust, combine, reclassify or otherwise change its
capitalization as it existed on the date of this
Agreement;
(f) purchase, redeem, retire, repurchase or
exchange, or otherwise acquire or dispose of, directly or
indirectly, any of its Equity Securities, whether
pursuant to the terms of such Equity Securities or
otherwise;
(g) directly or indirectly (including through
its officers, directors, employees or other
representatives) (i) initiate, solicit or encourage any
discussions, inquiries or proposals with any third party
(other than Buyers) relating to the disposition of any
- 19 -
24
significant portion of the business or assets of Seller
or the acquisition of Equity Securities of Seller or the
merger of Seller with any person (other than Buyers) or
any similar transaction (each such transaction being
referred to herein as an "Acquisition Transaction"), or
(ii) provide any such person with information or
assistance or negotiate with any such person with respect
to an Acquisition Transaction, and Seller shall promptly
notify Buyers orally of all the relevant details relating
to all inquiries, indications of interest and proposals
which it may receive with respect to any Acquisition
Transaction;
(h) take any action that would (A) materially
impede or delay the consummation of the transactions
contemplated by this Agreement or the ability of Buyers
or Seller to obtain any approval of any Regulatory
Authority required for the transactions contemplated by
this Agreement or to perform its covenants and agreements
under this Agreement or (B) prevent or impede the
transactions contemplated hereby from qualifying as a
reorganization within the meaning of Section 368 of the
Code;
(i) other than in the ordinary course of
business consistent with past practice, incur any
indebtedness for borrowed money or assume, guarantee,
endorse or otherwise as an accommodation become
responsible or liable for the obligations of any other
individual, corporation or other entity;
(j) agree in writing or otherwise to take any
of the foregoing actions or engage in any activity, enter
into any transaction or intentionally take or omit to
take any other act which would make any of the
representations and warranties in Article II of this
Agreement untrue or incorrect in any material respect if
made anew after engaging in such activity, entering into
such transaction, or taking or omitting such other act.
4.03. Forbearances of Buyers. During the period from
----------------------
the date of this Agreement to the Effective Time, Buyers shall not,
and shall not permit any of their respective Subsidiaries to,
without the prior written consent of Seller, agree in writing or
otherwise engage in any activity, enter into any transaction or
take or omit to take any other action:
(a) that would (i) materially impede or delay
the consummation of the transactions contemplated by this
Agreement or the ability of Buyers or Seller to obtain
any approval of any Regulatory Authority required for the
transactions contemplated by this Agreement or to perform
its covenants and agreements under this Agreement or (ii)
prevent or impede the transactions contemplated hereby
from qualifying as a reorganization within the meaning of
Section 368 of the Code; or
(b) which would make any of the representa-
tions and warranties of Article III of this Agreement
untrue or incorrect in any material respect if made anew
after engaging in such activity, entering into such
transaction, or taking or omitting such other action.
ARTICLE V
---------
ADDITIONAL AGREEMENTS
5.01. Access and Information. Buyers and Seller
----------------------
shall each afford to the other, and to the other's accountants,
counsel and other representatives, full access during normal
business hours,
- 20 -
25
during the period prior to the Effective Time, to all their respective
properties, books, contracts, commitments and records and, during such
period, each shall furnish promptly to the other (i) a copy of each
report, schedule and other document filed or received by it during
such period pursuant to the requirements of federal and state
securities laws and (ii) all other information concerning its
business, properties and personnel as the other may reasonably
request. Each party shall, and shall cause its advisors and
representatives to, (A) hold confidential all information
obtained in connection with any transaction contemplated hereby
with respect to the other party and its Subsidiaries which is not
otherwise public knowledge, (B) in the event of a termination of
this Agreement, return all documents (including copies thereof)
obtained hereunder from the other party or any of its Subsidiaries
to it and (C) use their respective best efforts to cause all of
such party's confidential information obtained pursuant to this
Agreement or in connection with the negotiation of this Agreement
to be treated as confidential and not use, or knowingly permit
others to use, any such information unless such information becomes
generally available to the public.
5.02. Registration Statement; Regulatory Matters.
------------------------------------------
(a) On or before May 31, 1997, Unified shall
prepare and file with the SEC a Registration Statement on
Form 10 or Form 10-SB, as the case may be, with respect
to the shares of Unified Common Stock (the "Registration
Statement"), and shall use its best efforts to cause the
Registration Statement to become effective by no later
than August 31, 1997. Unified shall prepare and, subject
to the review and consent of Seller with respect to
matters relating to Seller, use its best efforts to file
as soon as is reasonably practicable an application for
approval of the Merger with each such Regulatory
Authority as may require an application. Unified shall
also take any action required to be taken under any
applicable state blue sky or securities laws in
connection with the issuance of such shares, and Seller
shall furnish Unified all information concerning Seller
and the shareholders thereof as Unified may reasonably
request in connection with any such action. Upon the
effectiveness of the Registration Statement, Unified
shall use its best efforts, to the extent practicable, to
have the Unified Common Stock traded over-the-counter
with quotes published by the National Quotation Bureau,
Inc. Daily Quotation System.
(b) Seller and Buyers shall cooperate and use
their respective best efforts to prepare all
documentation, to effect all filings and to obtain all
permits, consents, approvals and authorizations of all
third parties and Regulatory Authorities necessary to
consummate the transactions contemplated by this
Agreement, provided that such actions do not: (i)
materially impede or delay the receipt of any approval
referred to in Section 6.01(b); (ii) prevent or impede
the transactions contemplated hereby from qualifying as
a reorganization within the meaning of Section 368 of the
Code; or (iii) the consummation of the transactions
contemplated by this Agreement.
5.03. Shareholder Approval. Seller shall call a
--------------------
meeting of its shareholders to be held as soon as practicable after
the date hereof for the purpose of voting upon this Agreement and
the Merger. In connection with such meeting, Seller shall prepare,
subject to the review and consent of Unified, the Proxy Statement
and mail the same to the shareholders of Seller. The Board of
Directors of Seller shall submit for approval of Seller's share-
holders the matters to be voted upon at such meeting. The Board of
Directors of Seller hereby does and shall recommend this Agreement
and the transactions contemplated hereby to shareholders of Seller
and use its reasonable best efforts to obtain any vote of Seller's
shareholders necessary for the approval of this Agreement. Seller
and the Principal Shareholder shall use their best efforts to
obtain all other Shareholder Approvals.
- 21 -
26
5.04. Current Information. During the period from
-------------------
the date of this Agreement to the Effective Time, each party shall
promptly furnish the other with copies of all interim financial
statements as the same become available and shall cause one or more
of its designated representatives to confer on a regular and
frequent basis with representatives of the other party. Each party
shall promptly notify the other party of the following events
immediately upon learning of the occurrence thereof, describing the
same and, if applicable, the steps being taken by the affected
party with respect thereto: (a) an event which would cause any
representation or warranty of such party or any Schedule,
statement, report, notice, certificate or other writing furnished
by such party to be untrue or misleading in any material respect;
(b) any Material Adverse Effect to it; (c) the issuance or
commencement of any governmental complaint, investigation or
hearing (or any communication indicating that the same may be
contemplated); or (d) the institution or threat of material
litigation involving such party, and shall keep the other party
fully informed of such events.
5.05. Environmental Reports. Seller shall provide to
---------------------
Buyers, as soon as reasonably practical, but not later than forty-
five (45) days after the date hereof, a phase one environmental
investigation report (prepared by a firm reasonably acceptable to
Buyers) on all real property owned, leased or operated by Seller as
of the date hereof and within ten (10) days after the acquisition
or lease of any real property acquired or leased by Seller after
the date hereof. If required by the phase one investigation, in
Buyers' reasonable opinion, Seller shall provide to Buyers a phase
two investigation report (prepared by a firm reasonably acceptable
to Buyers) on properties requiring such additional study. Buyers
shall have fifteen (15) business days from the receipt of any such
phase two investigation report to notify Seller of any
dissatisfaction with the contents of such report. Should the cost
of taking all remedial or other corrective actions and measures (i)
required by applicable law, or (ii) recommended or suggested by
such report or reports or prudent in light of serious life, health
or safety concerns, in the aggregate, exceed the sum of Ten
Thousand Dollars ($10,000), as reasonably estimated by such
environmental consulting firm, or if the cost of such actions and
measures cannot be so reasonably estimated by such firm to be such
amount or less with any reasonable degree of certainty, Buyers
shall have the right pursuant to Section 7.01(f) hereof, for a
period of fifteen (15) business days following receipt of such
estimate or indication that the cost of such actions and measures
can not be so reasonably estimated, to terminate this Agreement.
5.06. Agreements of Affiliates. Set forth as
------------------------
Schedule 5.06 is a list (which includes individual and beneficial
-------------
ownership) of all persons whom Seller believes to be "affiliates"
of Seller, as such term if defined for purposes of the Securities
Act. Prior to the Effective Time, and via letter, Seller shall
amend and supplement Schedule 5.06.
-------------
5.07. Expenses. Each party hereto shall bear its own
--------
expenses incident to preparing, entering into and carrying out this
Agreement and to consummating the Merger.
5.08. Miscellaneous Agreements.
------------------------
(a) Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its
respective 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 as
expeditiously as possible, including, without limitation,
using its respective best efforts to lift or rescind any
injunction or restraining order or other order adversely
affecting the ability of the parties to consummate the
transactions contemplated hereby. Each party shall use its
best efforts to obtain consents of all third parties and
- 22 -
27
Regulatory Authorities necessary or, in the opinion
of Buyers, desirable for the consummation of the
transactions contemplated by this Agreement.
(b) Seller, prior to the Effective Time, shall
(i) consult and cooperate with Buyers regarding the
implementation of those policies and procedures
established by Buyers for its governance including,
without limitation, policies and procedures pertaining to
the accounting, audit, human resources, treasury and
legal functions, and (ii) at the reasonable request of
Buyers, conform Seller's existing policies and procedures
in respect of such matters to Buyers' policies and
procedures or, in the absence of any existing Seller
policy or procedure regarding any such function,
introduce Buyers' policies or procedures in respect
thereof, unless to do so would cause Seller to be in
violation of any law, rule or regulation of any
Regulatory Authority having jurisdiction over Seller.
5.09. Employee Agreements and Benefits.
--------------------------------
(a) Following the Effective Time, Buyers shall
cause the Surviving Corporation to honor in accordance
with their terms all employment, severance and other
compensation contracts set forth on Schedule 2.11(b)
----------------
between Seller and any current or former director,
officer, employee or agent thereof, and all provisions
for vested benefits or other vested amounts earned or
accrued through the Effective Time under the Seller
Employee Plans.
(b) The provisions of the Seller Stock Plans
and any other plan, program or arrangement providing for
the issuance or grant of any other interest in respect of
the Equity Securities of Seller shall be deleted and
terminated as of the Effective Time, and Seller shall
ensure that following the Effective Time no participant
in any Seller Stock Plan shall have any right thereunder
to acquire any securities of Seller.
(c) Except as set forth in Section 5.09(b)
hereof, the Seller Employee Plans shall not be terminated
by reason of the Merger but shall continue thereafter as
plans of the Surviving Corporation until such time as the
employees of Seller are integrated into Unified's
employee benefit plans that are available to other
employees of Unified and its Subsidiaries, subject to the
terms and conditions specified in such plans and to such
changes therein as may be necessary to reflect the
consummation of the Merger.
5.10. Press Releases. Except as may be required
--------------
by law, Seller and Unified shall consult and agree with each other as
to the form and substance of any proposed press release relating to
this Agreement or any of the transactions contemplated hereby.
5.11. State Takeover Statutes. Seller will take
-----------------------
all steps necessary to exempt the transactions contemplated by this
Agreement and any agreement contemplated hereby from, and if
necessary challenge the validity of, any applicable state takeover
law.
5.12. Directors' and Officers' Indemnification.
----------------------------------------
Unified agrees that the Merger shall not affect or diminish any of
the duties and obligations of indemnification of Seller existing as
of the Effective Time in favor of employees, agents, directors or
officers of Seller arising by virtue of its Articles of
Incorporation, Charter or Bylaws in the form in effect at the date
of this Agreement or arising by operation of law or arising by
virtue of any contract, resolution or other agreement or document
existing at the date of this Agreement, and such duties and
obligations shall continue in full force and effect for
- 23 -
28
so long as they would (but for the Merger) otherwise survive and
continue in full force and effect. To the extent that Seller's
existing directors' and officers' liability insurance policy would
provide coverage for any action or omission occurring prior to the
Effective Time, Seller agrees to give proper notice to the
insurance carrier and to Unified of a potential claim thereunder so
as to preserve Seller's rights to such insurance coverage.
5.13. Tax Opinion Certificates. Seller shall use
------------------------
its reasonable best efforts to cause such of its executive officers,
directors and/or holders of one percent (1%) or more of the Seller
Common Stock (including shares beneficially held) as may be
requested by Xxxxxxxx Xxxxxx to timely execute and deliver to
Xxxxxxxx Xxxxxx certificates substantially in the form of Exhibit A
or Exhibit B hereto, as the case may be. ---------
---------
ARTICLE VI
----------
CONDITIONS
6.01. Conditions to Each Party's Obligation to Effect
-----------------------------------------------
the Merger. The respective obligations of each party to effect the
----------
Merger shall be subject to the fulfillment or waiver at or prior to
the Effective Time of the following conditions:
(a) This Agreement shall have received the
requisite Shareholder Approvals of Seller at the meeting
of shareholders called pursuant to Section 5.03 of this
Agreement and those required by the 0000 Xxx.
(b) All requisite approvals of this Agreement
and the transactions contemplated hereby shall have been
received from the Regulatory Authorities, and all waiting
periods after such approvals required by law or
regulation have been satisfied.
(c) Neither Seller nor Buyers shall be subject
to any order, decree or injunction of a court or agency
of competent jurisdiction which enjoins or prohibits the
consummation of the Merger.
(d) Each of Buyers and Seller shall have
received from Xxxxxxxx Xxxxxx an opinion (which opinion
shall not have been withdrawn at or prior to the
Effective Time) reasonably satisfactory in form and
substance to it to the effect that the Merger will
constitute a reorganization within the meaning of Section
368 of the Code and to the effect that, as a result of
the Merger, assuming that such Seller Common Stock is a
capital asset in the hands of the holder thereof at the
Effective Time, (i) holders of Seller Common Stock who
receive Unified Common Stock in the Merger will not
recognize gain or loss for federal income tax purposes on
the receipt of such stock, (ii) the basis of such Unified
Common Stock will equal the basis of the Seller Common
Stock for which it is exchanged and (iii) the holding
period of such Unified Common Stock will include the
holding period of the Seller Common Stock for which it is
exchanged.
- 24 -
29
6.02. Conditions to Obligations of Seller to Effect
---------------------------------------------
the Merger. The obligations of Seller to effect the Merger shall
----------
be subject to the fulfillment or waiver at or prior to the
Effective Time of the following additional conditions:
(a) Representations and Warranties. The
------------------------------
representations and warranties of Buyers set forth in
Article III of this Agreement shall be true and correct
in all material respects as of the date of this Agreement
and as of the Effective Time (as though made on and as of
the Effective Time, except (i) to the extent such
representations and warranties are by their express
provisions made as of a specified date, (ii) where the
facts which caused the failure of any representation or
warranty to be so true and correct have not resulted, and
are not likely to result, in a Material Adverse Effect on
Unified and its Subsidiaries, taken as a whole, and (iii)
for the effect of transactions contemplated by this
Agreement, and Seller shall have received a certificate
of the Chairman and Chief Executive Officer of Unified,
signing solely in his capacity as an officer of Unified,
to such effect.
(b) Performance of Obligations. Buyers shall
--------------------------
have performed in all material respects all obligations
required to be performed by it under this Agreement prior
to the Effective Time, and Seller shall have received a
certificate of the Chairman and Chief Executive Officer
of Unified, signing solely in his capacity as an officer
of Unified, to that effect.
(c) Permits, Authorizations, etc. Buyers
-----------------------------
shall have obtained any and all material permits,
authorizations, consents, waivers and approvals required
for the lawful consummation of the Merger.
(d) No Material Adverse Effect. Since the
--------------------------
date of this Agreement, there shall have been no Material
Adverse Effect on Unified and its Subsidiaries, taken as
a whole.
(e) Opinion of Counsel. Unified shall have
------------------
delivered to Seller an opinion of Unified's counsel dated
as of the Closing Date or a mutually agreeable earlier
date in substantially the form set forth as Exhibit C to
this Agreement. ---------
(f) Registration Statement. The Registration
----------------------
Statement shall have been declared effective and shall
not be subject to a stop order or any threatened stop
order.
6.03. Conditions to Obligations of Buyers to Effect
---------------------------------------------
the Merger. The obligations of Buyers to effect the Merger shall
----------
be subject to the fulfillment or waiver at or prior to the
Effective Time of the following additional conditions:
(a) Representations and Warranties. The
------------------------------
representations and warranties of Seller set forth in
Article II of this Agreement shall be true and correct in
all material respects as of the date of this Agreement
and as of the Effective Time (as though made on and as of
the Effective Time, except (i) to the extent such
representations and warranties are by their express
provisions made as of a specific date, (ii) where the
facts which caused the failure of any representation or
warranty to be so true and correct have not resulted, and
are not likely to result, in a Material Adverse Effect on
Seller, and (iii) for the effect of transactions
contemplated by this Agreement) and Buyers shall have
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30
received a certificate of the President of Seller,
signing solely in his capacity as an officer of Seller,
to such effect.
(b) Performance of Obligations. Seller shall
--------------------------
have performed in all material respects all obligations
required to be performed by it under this Agreement prior
to the Effective Time, and Buyers shall have received a
certificate of the President of Seller signing solely in
his capacity as an officer of Seller, to that effect.
(c) Permits, Authorizations, etc. Seller
-----------------------------
shall have obtained any and all material permits,
authorizations, consents, waivers and approvals required
for the lawful consummation by it of the Merger.
(d) No Material Adverse Effect. Since the
--------------------------
date of this Agreement, there shall have been no Material
Adverse Effect on Seller.
(e) Opinion of Counsel. Seller shall have
------------------
delivered to Buyers an opinion of Seller's counsel dated
as of the Closing Date or a mutually agreeable earlier
date in substantially the form set forth as Exhibit D to
this Agreement. ---------
(f) Opinion of Accountant. Unified shall have
---------------------
received an opinion letter, dated as of the Closing Date,
from its independent public accountants, to the effect
that the Merger will qualify for pooling-of-interests
accounting treatment under Accounting Principles Board
Opinion No. 16 if closed and consummated in accordance
with this Agreement.
ARTICLE VII
-----------
TERMINATION, AMENDMENT AND WAIVER
7.01. Termination. This Agreement may be terminated
-----------
at any time prior to the Effective Time, whether before or after
approval by Seller's shareholders:
(a) by mutual consent by the Boards of
Directors of Unified and Seller;
(b) by the Board of Directors of Unified or
the Board of Directors of Seller at any time after
October 31, 1997 if the Merger shall not theretofore have
been consummated (provided that the terminating party is
not then in material breach of any representation,
warranty, covenant or other agreement contained herein);
(c) by the Board of Directors of Unified or
the Board of Directors of Seller if any Regulatory
Authority whose approval is required for the consummation
of the transactions contemplated hereby has denied
approval of the Merger and such denial has become final
and nonappealable or (ii) the shareholders of Seller
shall not have approved this Agreement at the meeting
referred to in Section 5.03;
(d) by the Board of Directors of Unified, on
the one hand, or by the Board of Directors of Seller, on
the other hand, in the event of a material volitional
breach by the other party to this Agreement of any
representation, warranty or agreement contained herein,
which breach is not cured within 30 days after written
notice thereof is given to
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31
the breaching party by the non-breaching party or is
not waived by the non-breaching party during such
period;
(e) by the Board of Directors of Unified
pursuant to and in accordance with the provisions of
Section 5.05 hereof; or
(f) by the Board of Directors of Seller in the
event Unified shall have failed to either (i) file the
Registration Statement with the SEC by May 31, 1997 or
(ii) have the Registration Statement declared effective
by August 31, 1997.
7.02. Effect of Termination. In the event of termin-
---------------------
ation of this Agreement as provided in Section 7.01 hereof, this
Agreement shall forthwith become void and there shall be no
liability on the part of Buyers or Seller or their respective
officers or directors except as set forth in the second sentence of
Section 5.01 and in Section 5.08 and Article 8, and except that no
termination of this Agreement pursuant to Section 7.01(e) shall
relieve the breaching party of any liability to the non-breaching
party hereto arising from the intentional, deliberate and willful
non-performance of any covenant contained herein, after giving
notice to such breaching party and an opportunity to cure as set
forth in Section 7.01(e).
7.03. Amendment. This Agreement, the Exhibits and
---------
the Schedules hereto may be amended by the parties hereto, by
action taken by or on behalf of the respective Boards of Directors
of Unified or Seller, at any time before or after approval of this
Agreement by the shareholders of Seller; provided, however, that
after any such approval by the shareholders of Seller no such
modification shall (A) alter or change the amount or kind of Merger
Consideration to be received by holders of Seller Common Stock as
provided in this Agreement or (B) adversely affect the tax
treatment to Seller shareholders as a result of the receipt of the
Merger Consideration. This Agreement, the Exhibits and the
Schedules hereto may not be amended except by an instrument in
writing signed on behalf of each of Buyers and Seller.
7.04. Waiver. Any term, condition or provision of
------
this Agreement may be waived in writing at any time by the party
which is, or whose stockholders or shareholders, as the case may
be, are, entitled to the benefits thereof.
ARTICLE VIII
------------
INDEMNIFICATION
8.01. Indemnification of Buyers. By execution of
-------------------------
this Agreement, the Principal Shareholder hereby acknowledges that
Unified shall be entitled to full indemnification by the Principal
Shareholder of the following:
(a) any and all loss, liability or damage
(including judgments and settlement payments) incurred by
Seller or Unified incident to, arising in connection with
or resulting from any misrepresentation, breach,
nonperformance or inaccuracy of any representation,
warranty or covenant (to the extent such covenant is to
be performed prior to the Closing Date) by Seller made or
contained in this Agreement or in any Exhibit, Schedule,
certificate or other document executed and delivered to
Unified by the Principal Shareholder or by or on behalf
of Seller under or pursuant to this Agreement or the
transactions contemplated herein;
- 27 -
32
(b) any and all loss, liability or damage
relating to taxes which arise from or relate to (i)
Seller's activities prior to the Closing Date, (ii) tax
periods ending on or prior to the Closing Date or (iii)
the Merger, in each case except to the extent that any
specific amount for any such tax was recorded on the
Seller's books;
(c) Seller's obligations with respect to any
employees of Seller under any pension, profit sharing or
retirement plan, collective bargaining agreement,
consulting agreement, life insurance or other employee
welfare benefit plan or vacation policy relating to any
time prior to the Closing Date, and in particular,
obligations for medical or life insurance benefits of any
former or retired employees of Seller or their
dependents;
(d) except to the extent of payments actually
received by Unified pursuant to any insurance policies
under which Seller is insured, any and all loss,
liability or damage (including judgments and settlement
payments) incurred by them incident to, arising in
connection with or resulting from any act or failure to
act by the Principal Shareholder or by Seller or its
employees prior to the Closing Date; and
(e) any and all costs, expenses and all other
actual damages incurred in claiming, contesting or
remedying any breach, misrepresentation, nonperformance
or inaccuracy described above, or in enforcing their
rights to indemnification hereunder, including, by way of
illustration and not limitation, all legal and accounting
fees, other professional expenses and all filing fees and
collection costs incident thereto and all such fees,
costs and expenses incurred in defending claims which, if
successfully prosecuted, would have resulted in loss,
liability, costs, expense or other damage.
In case a claim shall be made or any action shall be
brought in respect of which recovery through indemnity will lie
against the Principal Shareholder pursuant to any provision of this
Agreement, Unified shall promptly notify the Principal Shareholder
in writing, and the Principal Shareholder shall promptly assume the
defense thereof, including with the consent of Unified, which
consent shall not be unreasonably withheld, the employment of
counsel, the payment of all expenses and the right to negotiate and
consent to settlement. Unified shall have the right to employ
separate counsel with respect to any such claim or in any such
action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of Unified unless
the employment of such counsel has been specifically authorized in
writing by the Principal Shareholder or there is a conflict of
interest that would prevent counsel for the Principal Shareholder
from adequately representing both the Principal Shareholder, on the
one hand, and Seller and Unified on the other hand, or would
prevent counsel for Seller from adequately representing both Seller
and Unified. The Principal Shareholder shall not be liable for any
settlement of any such action effected without their written
consent, but if settled with the written consent of the Principal
Shareholder or if there be a final judgment for the plaintiff in
any such action for which the Principal Shareholder is required
hereunder to assume the defense, the Principal Shareholder agrees
to indemnify and hold harmless Unified and Seller from and against
any loss or liability by reason of such settlement or judgment.
8.02. Indemnification of Seller's Shareholders.
----------------------------------------
By execution of this Agreement, Unified hereby acknowledges that each
shareholder of Seller as set forth on the Seller Shareholder List
(collectively, the "Shareholders") shall be entitled to full
indemnification by Unified of the following:
(a) any and all loss, liability or damage
(including judgments and settlement payments) incurred by
the Shareholders incident to, arising in connection with or
- 28 -
33
resulting from any misrepresentation, breach,
nonperformance or inaccuracy of any representation,
warranty or covenant by Unified made or contained in this
Agreement or in any Exhibit, Schedule, certificate or
other document executed and delivered to the Shareholders
by Unified; and
(b) any and all costs, expenses and all other
actual damages incurred in claiming, contesting or
remedying any breach, misrepresentation, nonperformance
or inaccuracy described above, or in enforcing its rights
to indemnification hereunder, including, by way of
illustration and not limitation, all legal and accounting
fees, other professional expenses and all filing fees and
collection costs incident thereto and all such fees,
costs and expenses incurred in defending claims which, if
successfully prosecuted, would have resulted in loss,
liability, cost, expense or other damages.
In case a claim shall be made or any action shall be
brought in respect of which recovery through indemnity will lie
against Unified pursuant to any provision of this Agreement, the
Shareholders shall promptly notify Unified in writing, and Unified
shall promptly assume the defense thereof, including with the
consent of the Shareholders, which consent shall not be
unreasonably withheld, the employment of counsel, the payment of
all expenses and the right to negotiate and consent to settlement.
The Shareholders shall have the right to employ separate counsel
with respect to any such claim or in any such action and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Shareholders unless the
employment of such counsel has been specifically authorized in
writing by Unified or there is a conflict of interest that would
prevent counsel for Unified from adequately representing both
Seller and Unified, on the one hand, and the Shareholders, on the
other hand. Unified shall not be liable for any settlement of any
such action effected without its written consent, but if settled
with the written consent of Unified or if there be a final judgment
for the plaintiff in any such action for which Unified is required
hereunder to assume the defense, Unified agrees to indemnify and
hold harmless the Shareholders from and against any loss or
liability by reason of such settlement or judgment.
8.03. Payment of Claims for Indemnification. Any
-------------------------------------
amounts to be indemnified to Unified shall be the responsibility of
the Principal Shareholder and shall be paid promptly upon notice of
Unified to the Principal Shareholder of incurrence of such loss,
liability, cost, expense or damage and an explanation of the losses
for Unified's demand for indemnification under Article 8 of this
Agreement. Any amounts payable to the Shareholders pursuant to the
provisions of Section 8.02 of this Agreement shall be the
responsibility of Unified and shall be paid promptly upon notice of
the Shareholders to Unified of incurrence of such loss, liability,
cost, expense or damage and an explanation of the losses for the
Shareholders' demand for indemnification under Section 8.02 of this
Agreement.
8.04. Survival of Indemnification. Any other
---------------------------
provision hereof to the contrary notwithstanding, the parties agree
that the representations and warranties of the parties contained in
this Agreement and any certificates delivered pursuant to this
Agreement shall survive for a period of twelve (12) months after
the Closing Date for purposes of this Article 8, regardless of any
investigation made by either party prior to the date hereof or
prior to the Closing Date. Unified and the Shareholders shall only
be entitled to indemnification under this Article 8 for breaches of
representations and warranties if a written notice describing the
claim for which indemnification is sought is signed by the party
claiming indemnification not later than twelve months following the
Closing Date. Any claim for indemnification pursuant to this
Article 8 for breaches of representations and warranties not made
prior to the expiration of such twelve month period shall be
extinguished, and all representations and warranties with respect
to which no claim is made prior to the expiration of such twelve
month period shall expire and be of no further force and effect.
- 29 -
34
ARTICLE IX
----------
GENERAL PROVISIONS
9.01. Non-Survival of Representations, Warranties
-------------------------------------------
and Agreements. No investigation by the parties hereto made heretofore
--------------
or hereafter shall affect the representations and warranties of the
parties which are contained herein and each such representation and
warranty shall survive such investigation. Except as set forth
below in this Section 9.01, all representations, warranties and
agreements in this Agreement of Buyers and Seller or in any
instrument delivered by Buyers or Seller pursuant to or in
connection with this Agreement shall expire at the Effective Time
or upon termination of this Agreement in accordance with its terms.
In the event of consummation of the Merger, the agreements
contained in or referred to in Sections 1.07-1.11, 5.02(b), 5.06,
5.08, 5.09, 5.12 and 5.13 and Article 8 shall survive the Effective
Time. In the event of termination of this Agreement in accordance
with its terms, the agreements contained in or referred to in the
second sentence of Section 5.01 and Sections 5.08 and 7.02 shall
survive such termination.
9.02. No Assignment; Successors and Assigns.
-------------------------------------
This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, but
neither this Agreement nor any right or obligation set forth in any
provision hereof may be transferred or assigned by any party hereto
without the prior written consent of the other party, and any
purported transfer or assignment in violation of this Section 9.02
shall be void and of no effect. There shall not be any third party
beneficiaries of any provisions hereof except for Sections 1.08,
5.08, 5.09 and 5.12 and Article 8, which may be enforced against
Buyers or Seller by the parties therein identified.
9.03. No Implied Waiver. No failure or delay
-----------------
on the part of either party hereto to exercise any right, power or
privilege hereunder or under any instrument executed pursuant
hereto shall operate as a waiver nor shall any single or partial
exercise of any right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power
or privilege.
9.04. Headings. Article, section, subsection and
--------
paragraph titles, captions and headings herein are inserted only as
a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this Agreement or the intent
or meaning of any provision hereof.
9.05. Entire Agreement. This Agreement, the
----------------
Exhibits and the Schedules hereto constitute the entire agreement
between the parties with respect to the subject matter hereof,
supersede all prior negotiations, representations, warranties,
commitments, offers, letters of interest or intent, proposal letters,
contracts, writings or other agreements or understandings, whether
written or oral, with respect thereto, including that certain
Agreement and Plan of Merger dated as of the date hereof by and among
Unified, Merger Sub, Seller and the Principal Shareholder.
9.06. Counterparts. This Agreement may be executed
------------
in one or more counterparts, and any party to this Agreement may
execute and deliver this Agreement by executing and delivering any
of such counterparts, each of which when executed and delivered
shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
9.07. Notices. All notices and other communications
-------
hereunder shall be in writing and shall be deemed to be duly
received (i) on the date given if delivered personally or (ii) upon
confirmation of receipt, if by facsimile transmission or (iii) on
the date received 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):
- 30 -
35
(i) if to Buyers:
Unified Holdings, Inc.
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
Copies to:
Xx. Xxxxxxx X. Xxxxxxx, Chairman
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
and
Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
(ii) if to Seller or Principal Shareholder:
First Lexington Trust Company
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx, President
Telecopy: (000) 000-0000
9.08. Severability. Any term, provision, covenant
------------
or restriction contained in this Agreement held by a court or a
Regulatory Authority of competent jurisdiction to be invalid, void
or unenforceable, shall be ineffective to the extent of such
invalidity, voidness or unenforceability, but neither the remaining
terms, provisions, covenants or restrictions contained in this
Agreement nor the validity or enforceability thereof in any other
jurisdiction shall be affected or impaired thereby. Any term,
provision, covenant or restriction contained in this Agreement that
is so found to be so broad as to be unenforceable shall be
interpreted to be as broad as is enforceable.
9.09. Governing Law. This Agreement shall
-------------
be governed by and controlled as to validity, enforcement,
interpretation, effect and in all other respects by the internal
laws of the State of Delaware, without regards to its conflict of
laws principles.
[remainder of this page intentionally left blank]
- 31 -
36
IN WITNESS WHEREOF, Buyers and Seller have caused this
Agreement to be signed and, by such signature, acknowledged by
their respective officers thereunto duly authorized, and such
signatures to be attested to by their respective officers thereunto
duly authorized, all as of the date first above written.
"BUYERS"
UNIFIED HOLDINGS, INC.
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxx, Chairman and
Chief Executive Officer
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxx
------------------------------ ----------------------------------
Xxxx X. Xxxx, President and
Chief Operating Officer
FLTC ACQUISITION CORPORATION
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ----------------------------------
Xxxxxxx X. Xxxxxxx, President and
Chief Executive Officer
"SELLER"
FIRST LEXINGTON TRUST COMPANY
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xx. Xxxxxxx X. Xxxxxx
------------------------------ ----------------------------------
Xx. Xxxxxxx X. Xxxxxx, President
"PRINCIPAL SHAREHOLDER"
/s/ Xx. Xxxxxxx X. Xxxxxx
-------------------------------------
Xx. Xxxxxxx X. Xxxxxx
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