EXHIBIT 1
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMONG
GREENWICH AIR SERVICES, INC.
CONDOR ACQUISITION CORP.
AND
UNC INCORPORATED
Dated as of March 9, 1997
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement"), made and entered into and executed this 9th day of March 1997, by
and between GREENWICH AIR SERVICES, INC., a Delaware corporation ("Greenwich"),
CONDOR ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary
of Greenwich ("Merger Sub"), and UNC INCORPORATED, a Delaware corporation
("UNC"), amends and restates in its entirety that certain Agreement and Plan of
Reorganization, dated as of February 13, 1997 (the "Agreement Date") by and
between Greenwich and UNC (the "Prior Agreement").
RECITALS
A. Greenwich and UNC have heretofore entered into the Prior
Agreement, pursuant to which Greenwich agreed (subject to the terms and
conditions set forth therein) to acquire all of the outstanding "UNC Common
Stock Equivalents" (which term includes issued and outstanding shares of UNC
Common Stock and shares of UNC Common Stock issuable upon conversion of shares
of UNC Class B Preferred Stock and the exercise of currently outstanding options
to acquire shares of UNC Common Stock) at a value of not less than $14.00 per
UNC Common Stock Equivalent (subject to adjustment) in a merger of UNC with and
into Condor. The consideration payable to the holders of UNC Common Stock
Equivalents pursuant to the Prior Agreement was payable in shares of Greenwich
Class B Common Stock or, to the extent elected by each such holder (and subject
to the limitations contained in the Prior Agreement), in cash at the rate of
$14.00 per UNC Common Stock Equivalent.
B. Simultaneously with the execution of this Agreement,
Greenwich is entering into the GE-Greenwich Merger Agreement (as defined below),
pursuant to which GE has agreed (subject to the conditions therein set forth) to
acquire all of the issued and outstanding common stock of Greenwich.
C. In connection with the foregoing transaction, the Boards of
Directors of Greenwich and UNC have determined that it is in the best interests
of the respective stockholders of Greenwich and UNC, and accordingly Greenwich
and UNC have agreed, to amend and restate the Prior Agreement to provide for the
acquisition by Greenwich of all outstanding UNC Common Stock Equivalents for
cash at the rate of $15.00 per UNC Common Stock Equivalent, all on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, warranties, covenants, agreements and conditions set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
In addition to the other terms defined in this Agreement, as used
herein, the following terms shall have the meanings set forth below:
Section 1.1. "Agreement" shall mean this Amended and Restated
Agreement and Plan of Merger (including the Recitals hereto), together with the
Certificate of Merger and other Exhibits and Schedules attached hereto, as
amended from time to time in accordance with the terms hereof.
Section 1.2. "Affiliate" of any specified Person shall mean any
other Person directly or indirectly controlling or controlled by or under common
control with such specified Person. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
Section 1.3. "Affiliated Group" shall mean an affiliated group as
defined in Section 1504 of the Code (or any analogous combined, consolidated or
unitary group defined under any domestic or foreign Tax law) of which any of UNC
and UNC Subsidiaries or Greenwich and Greenwich Subsidiaries are members.
Section 1.4. "AlliedSignal Agreements" shall mean the collective
reference to the following agreements, as amended from time to time: (a) the
Asset and Stock Purchase Agreement, dated May 26, 1994 between LDC Aviation
Services, Inc. ("Xxxxxxx") and AlliedSignal Corporation ("AlliedSignal"); (b)
the agreement dated April 25, 1996 between UNC and AlliedSignal, which expires
on December 31, 1997 and authorizes UNC to perform repairs on certain
AlliedSignal parts and components; and (c) the operating agreement dated June
24, 1994 between Xxxxxxx and AlliedSignal expiring June 30, 2009; copies of all
of which AlliedSignal Agreements have been furnished to Greenwich.
Section 1.5. "Audited 1996 Statements" shall mean the audited
consolidated balance sheet as at December 31, 1996 of the UNC Companies,
together with the related audited consolidated statement of income, statement of
cash flows and statement of stockholders' equity, and with all applicable notes
and schedules, all of which, when issued will have been audited by the UNC
Auditors, in accordance with GAAP and Regulation S-X, as promulgated under the
Securities Act.
Section 1.6. "Certificate of Merger" shall mean the certificate of
merger to be filed by the Constituent Corporations, in form and content
reasonably satisfactory to counsel to UNC and Greenwich.
Section 1.7. "Closing" shall have the meaning given in Section 10.1,
and the term "Closing Date" shall mean the date on which the Closing occurs.
Section 1.8. "Code" shall mean, as appropriate, the Internal Revenue
Code of 1954 or of 1986, each as amended.
Section 1.9. "Confidentiality Agreement" shall mean the
Confidentiality Agreement dated November 8, 1996 between UNC and Greenwich.
Section 1.10. "Constituent Corporations" shall mean UNC and Merger
Sub, which shall be the parties to the Merger.
Section 1.11. "Contract" shall mean any contract, agreement, lease,
license, arrangement, understanding, relationship or commitment, written or
oral.
Section 1.12. "DGCL" shall mean the Delaware General Corporation Law,
as amended.
Section 1.13. "X.X. Xxxxxx" shall mean X.X. Xxxxxx Securities Inc.,
financial advisors to UNC.
Section 1.14. "Effective Time" has the meaning given in Section 3.2.
Section 1.15. "Employee Plan Event" shall mean, with respect to any
Employee Plan relating to the operations of any of the UNC Companies, any of the
events described in clauses (i) through (xi) below, in each case, as of the date
hereof and as of the Closing Date, as applicable:
(i) a "reportable event" (within the meaning of Section 4043 of
ERISA) for which the requirement of notice within 30 days to the PBGC is
not waived or which is described in 29 C.F.R. Section 2615.12 or 2615.15;
(ii) the failure to meet the minimum funding standard of Section
412 of the Code (whether or not waived in accordance with Section 412(d) of
the Code) or the failure to make by its due date a required installment
under Section 412(m) of the Code;
(iii) the provision by the administrator of any plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in
a distress termination described in Section 401(c) of ERISA;
(iv) the withdrawal from any plan during a plan year by a
"substantial employer" as defined in Section 4001(a)(2) of ERISA resulting
in liability pursuant to Section 4062(e) or Section 4063 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any
plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination or the appointment of a trustee to
administer, any plan;
(vi) the imposition of liability pursuant to Section 4064 or 4069
of ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the complete or partial withdrawal (within the meaning of
Sections 4203 and 4205 of ERISA) from any multiemployer plan if there is
any potential liability therefor, or the receipt of notice from any
multiemployer plan that it is in reorganization or insolvency pursuant to
Sections 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Sections 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to
the imposition of fines, penalties, taxes or related charges under Chapter
43 of the Code or under Section 409, 502(c), 504(1) or 4071 of ERISA in
respect of any plan;
(ix) the assertion of a material claim (other than routine claims
for benefits) against any plan other than a multiemployer plan or the
assets of any plan, or against the plan sponsor in connection with any such
plan;
(x) receipt from the IRS of notice of the failure of any Qualified
Plan to qualify under Section 401(a) of the Code, or the failure of any
trust forming part of any Qualified Plan to qualify for exemption from
taxation under Section 501(a) of the Code;
(xi) the imposition of a lien on any assets of the person
maintaining or contributing to any plan pursuant to Sections 401(a)(29) or
412(n) of the Code or pursuant to ERISA.
Section 1.16. "Employee Plan" shall mean, as of the date hereof and
as of the Closing Date, as applicable, any plan, contract, commitment, program,
policy, arrangement, understanding or practice providing benefits to any
employee, former employee, director or agent of any of the UNC Companies
(whether or not the Person maintains, contributes to, or is bound by any such
plan, contract, commitment, program, policy,
arrangement, understanding or practice, or under which any of the UNC Companies
contributes, has contributed or has any obligation to contribute), including,
without limitation (i) any "employee benefit plan" (within the meaning of
Section 3(3) of ERISA), (ii) any profit-sharing, deferred compensation, bonus,
stock option, stock purchase, pension, retainer, consulting, retirement,
severance, welfare or incentive plan, contract, commitment, program, policy,
arrangement, understanding or practice, (iii) any plan, contract, commitment,
program, policy, arrangement, understanding or practice providing for "fringe
benefits" or perquisites, including, without limitation, benefits relating to
automobiles, clubs, vacation, child care, parenting, sabbatical or sick leave
and medical, dental, hospitalization, life insurance and other types of
insurance, (iv) any Pension Plan, and (v) any Multiemployer Plan.
Section 1.17. "Environmental Assessment" shall mean any one or more
reviews, studies and/or reports by an independent environmental consultant,
which may include, without limitation, one or more Phase I and/or Phase II
studies, updates thereof, compliance audits, health and safety audits, and
related testing for hazardous substances, toxic substances, hazardous wastes
and/or toxic pollutants (as defined under Environmental Laws), for the purpose
of determining whether any of the UNC Companies is in compliance with
Environmental Laws, and/or whether there exists any condition or circumstance
which authorizes or may require any corrective action, cleanup, removal or other
remedial action under Environmental Laws on the part of any of the UNC Companies
or any Real Estate owned or leased by any of the UNC Companies.
Section 1.18. "Environmental Laws" shall mean and include all
federal, state and local laws, statutes, regulations, permits, orders,
ordinances, codes, rules and other governmental restrictions, requirements and
duties, including common law, relating to the treatment, storage, disposal or
release of air pollutants, water pollutants or processed waste water or
otherwise relating to human health, the environment or hazardous substances,
including but not limited to the Federal Solid Waste Disposal Act; the Federal
Clean Air Act (including, without limitation, the Clean Air Act Amendments of
1990); the Federal Water Pollution Control Act; the Hazardous Materials
Transportation Act; the Federal Toxic Substances Control Act; the Federal
Resource Conservation and Recovery Act of 1976; the National Environmental
Policy Act; the Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA") and similar state laws, all amendments to any
of the foregoing statutes, and all regulations promulgated by any federal or
state agencies, including the Environmental Protection Agency, regulations of
the Nuclear Regulatory Agency, and regulations of any state department of
natural resources or state environmental protection agency now or at any time
hereinafter in effect.
The terms "hazardous substances," "release," "respond," "response,"
and all variations and derivatives thereof shall mean and include, without
limitation, all radioactive materials, asbestos and asbestos-containing
materials, PCBs, petroleum products and by-products, all solid, semi-solid,
liquid or gaseous substances which are toxic, ignitable, corrosive, carcinogenic
or otherwise dangerous to human, plant or animal health, and all substances
defined or listed as "hazardous substances," "toxic substances," "hazardous
waste," "toxic pollutants" in, or otherwise regulated under any Environmental
Law, including, without limitation, the meanings ascribed to them in CERCLA.
Section 1.19. "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
Section 1.20. "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
Section 1.21. "GAAP" shall mean generally accepted accounting
principles as in effect in the United States of America at the time of the
preparation of the subject financial statement.
Section 1.22. "GE" shall mean General Electric Company, a New York
corporation.
Section 1.23. "Governmental Authority" shall mean any federal, state,
provincial, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, or any court, in each case whether of the
United States, any of its possessions or territories, or of any foreign nation.
Section 1.24. "Greenwich" shall mean Greenwich Air Services, Inc., a
Delaware corporation.
Section 1.25. "Greenwich Class A Stock" shall mean the Class A voting
common stock, $.01 par value per share, of Greenwich.
Section 1.26. "Greenwich Class B Stock" shall mean the Class B
nonvoting common stock of Greenwich, $.01 par value per share.
Section 1.27. "GE/Greenwich Merger" shall mean the merger of
Greenwich with and into GE or a wholly-owned subsidiary of GE pursuant to the
GE-Greenwich Merger Agreement.
Section 1.28. "GE-Greenwich Merger Agreement" shall mean the
Agreement and Plan of Merger, dated Xxxxx 0, 0000, xxxxx XX, XX Merger Corp., a
wholly-owned subsidiary of GE ("Mergerco"), and Greenwich pursuant to which it
is contemplated that as at the effective time of the GE/Greenwich Merger,
Greenwich will be merged with and into Mergerco, with Mergerco as the surviving
corporation of such GE/Greenwich Merger; a true copy of which GE-Greenwich
Merger Agreement has been furnished to UNC.
Section 1.29. "Indebtedness" shall mean, with respect to UNC, any UNC
Subsidiary and the UNC Companies, as a consolidated whole, as applicable (a) all
indebtedness, whether or not contingent, for borrowed money, (b) all obligations
for the deferred purchase price of property or services except trade accounts
payable and accrued liabilities that arise in the ordinary course of business,
(c) all obligations evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property acquired (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, under acceptance, letter of credit or similar
facilities, (g) all obligations to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock or any warrants, rights or options
to acquire such capital stock, valued, in the case of redeemable preferred
stock, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends but only to the extent such obligation is
payable (i) at a fixed or determinable date, whether by operation of a sinking
fund or otherwise, (ii) at the option of any other Person or (iii) upon the
occurrence of a condition not solely within their control, such as a redemption
required to be made out of future earnings, (h) all Indebtedness of others
referred to in clauses (a) through (f) above guaranteed directly or indirectly
in any manner or in effect guaranteed directly or indirectly through an
agreement (A) to pay or purchase such Indebtedness or to advance or supply funds
for the payment or purchase of such Indebtedness, (B) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of such Indebtedness or to
assure the holder of such Indebtedness against loss, (C) to supply funds to or
in any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or such
services are rendered) or (D) otherwise to assure a creditor against loss, and
(i) all Indebtedness referred to in clauses (a) through (f) above secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any encumbrance on property (including, without
limitation, accounts and contract rights) owned, even though payment of such
Indebtedness has not been assumed or become a liability.
Section 1.30. "HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
Section 1.31. "IRS" shall mean the Internal Revenue Service.
Section 1.32. "Knowledge of Greenwich" shall mean the actual
knowledge, after due inquiry, of those officers of Greenwich identified in
Schedule 1.45.
Section 1.33. "Knowledge of UNC" shall mean the actual knowledge,
after due inquiry, of those officers of UNC identified in Schedule 1.46.
Section 1.34. "Law" shall mean any federal, state, provincial, local
or other law or governmental requirement of any kind, and the rules, regulations
and orders promulgated thereunder.
Section 1.35. "Merger" shall have the meaning given in Section 2.1.
Section 1.36. "Merger Consideration" means the amounts payable to
holders of shares of UNC Stock as described in Section 2.2.
Section 1.37. "Multiemployer Plan" shall mean an Employee Plan that
is a "multiemployer plan" within the meaning of Section 3(37) of ERISA, to which
any of the Sellers or Businesses contributes or has contributed or has or has
had an obligation to contribute.
Section 1.38. "Nasdaq" shall mean The Nasdaq National Market.
Section 1.39. "NYSE" shall mean The New York Stock Exchange, Inc.
Section 1.40. "Partnership" shall mean any limited or general
partnership, joint venture or other business association, other than a
Subsidiary, in which any party has a direct or indirect interest (collectively,
"Partnerships"), all of such Partnerships of Greenwich being listed on Schedule
1.53A attached hereto and all of such Partnerships of UNC being listed on
Schedule 1.53B attached hereto.
Section 1.41. "Pension Plan" shall mean an Employee Plan, other than
a Multiemployer Plan, that is either (a) covered by Title IV of ERISA or subject
to the minimum funding standards of Section 412 of the Code, or (b) an Employee
Plan in the nature of a defined contribution or defined benefit pension plan
under the laws of the United Kingdom and/or Scotland.
Section 1.42. "Person" shall mean any individual, partnership, firm,
corporation, limited liability company, association, trust, unincorporated
organization or other entity, as well as any syndicate or group that would be
deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
Section 1.43. "Permits" shall mean permits, licenses and
governmental authorizations, registrations and approvals.
Section 1.44. "Real Estate" shall mean, with respect to any of the
UNC Companies, as applicable, all of the fee or leasehold ownership right, title
and interest of such UNC Company, in and to all real estate and improvements
owned or leased by any of the UNC Companies and which is used by any of the UNC
Companies in connection with the operation of the UNC Businesses, including
without limitation, all of the real estate and improvements described on
Schedule 1.60.
Section 1.45. "Schedules" shall mean the confidential disclosure
schedules prepared by UNC and Greenwich, respectively, annexed (or deemed
annexed pursuant to Section 12.12) to this Agreement and made a part hereof, as
the same may be modified or updated by agreement of the parties through and
including the Closing Date. A disclosure contained in any one Schedule shall be
deemed to be a disclosure for any and all purposes hereunder.
Section 1.46. "SEC" shall mean the Securities and Exchange
Commission.
Section 1.47. "Securities Act" shall mean the Securities Act of 1933,
as amended.
Section 1.48. "Series B Preferred Stock Purchase Agreement" shall
mean the securities purchase agreement, dated as of October 4, 1995, between UNC
and Network III Holdings, LDC, Xxxxxx Investment Company, Iron City Partners,
Inc., Ariel Fund Ltd. and Pequod Investments, L.P., pursuant to which UNC sold
for $25 million an aggregate of 250,000 shares of UNC Series B Preferred Stock.
Section 1.49. "Stock Options" shall mean the collective reference to
(a) the various types of UNC stock options which are authorized for issuance
under the Stock Option Plans, (b) the outstanding warrants to purchase shares of
UNC Common Stock, all of which are reflected on Schedule 5.2, and (c) the right
to acquire shares of UNC Common Stock pursuant to the 7-1/2% UNC Convertible
Debentures.
Section 1.50. "Stock Option Plans" shall mean the individual and
collective reference to all qualified and nonqualified stock option plans,
incentive stock option plans, non-employee directors' stock option plans and
other rights to purchase shares of UNC Common Stock granted to employees, and
which are summarized and disclosed on Schedule 5.2.
Section 1.51. "Subsidiary" shall mean (i) each corporate entity with
respect to which a party has the right to vote (directly or indirectly through
one or more other entities or otherwise) shares representing 50% or more of the
votes eligible to be cast in the election of directors of such entity, and (ii)
each other corporate entity which constitutes a "significant subsidiary," as
defined in Rule 1-02 of Regulation S-X adopted under the Exchange Act
(collectively, "Subsidiaries"), all of the Subsidiaries of Greenwich being
listed on Schedule 1.39 and all of the Subsidiaries of UNC being listed on
Schedule 1.84.
Section 1.52. "UNC Stockholders' Meeting" shall mean the special or
annual meeting of stockholders of UNC called pursuant to Section 3.1 to consider
and approve the transactions contemplated herein, and any adjournments thereof.
Section 1.53. "UNC" shall mean UNC Incorporated, a Delaware
corporation.
Section 1.54. "UNC Businesses" shall mean, as of the specific date
referenced, the collective reference to the UNC Xxxxxxx Business, the UNC
Manufacturing Business and the UNC Xxxx Xxxxxxx Business, as presently conducted
by the UNC Companies and their respective business operations.
Section 1.55. "UNC Common Stock" shall mean the Common Stock, $0.20
par value per share, of UNC.
Section 1.56. "UNC Companies" shall mean UNC, its Subsidiaries and
the Partnerships in which it has an interest.
Section 1.57. "UNC Financial Statements" shall mean (a) the audited
consolidated balance sheet of UNC as of December 31, 1995, and the audited
consolidated statements of earnings, stockholders' equity and cash flows for the
fiscal year then ended, together with the notes thereto, and (b) the UNC SEC
Reports, true and correct copies of which have been provided to Greenwich by
UNC.
Section 1.58. "UNC Xxxxxxx Business" shall mean the overhaul,
maintenance and repair of gas turbine aircraft and aircraft engines and
accessories, airframe retrofits and completion and spare parts distribution,
primarily for business aircraft.
Section 1.59. "UNC Xxxx Xxxxxxx Business" shall mean the provision of
contract services to United States and foreign military and other government
agencies, consisting primarily of aircraft maintenance and pilot training.
Section 1.60. "UNC Manufacturing Business" shall mean the provision
of specialized aviation product manufacturing and repair services on an
outsourced basis for the major engine and airframe OEMs and the provision of
manufactured products and repairs directly to the United States military.
Section 1.61. "UNC Material Adverse Effect" shall mean any
circumstances, change in, or effect on, the UNC Companies, when taken as a
consolidated whole, or affecting the UNC Xxxxxxx Business, the UNC Xxxx Xxxxxxx
Business or the UNC Manufacturing Business, whether individually or collectively
as to any one or more of such UNC Businesses, which is, or could reasonably be
expected to in the future be, materially adverse to the operations, assets or
liabilities, employee relationships, customer or supplier relationships,
earnings or results of operations, financial budgets and forecasts or the
business prospects and condition (financial or otherwise) of the UNC Companies
or any one or more of UNC Businesses, whether individually or taken as a
consolidated whole with respect to the UNC Companies.
Section 1.62. "UNC Material Contracts" shall mean the types of
Contracts referred to in Section 5.10 of this Agreement to which UNC or any of
UNC Subsidiaries is a party signatory, including, without limitation, the
AlliedSignal Agreements.
Section 1.63. "UNC Notes" shall mean the collective reference to (a)
UNC's 9-1/8% $100 million principal amount Senior Notes Due 2003 (the "9-1/8%
UNC Notes"), (b) UNC's 11% $125 million principal amount Senior Subordinated
Notes Due 2006 (the "11% UNC Notes"), and (c) UNC's 7-1/2% $64.8 million Junior
Convertible Subordinated Debentures Due 2006 (the "7-1/2% UNC Convertible
Debentures").
Section 1.64. "UNC Preferred Stock" shall mean the collective
reference to 12,000,000 authorized shares of UNC preferred stock, $1.00 par
value per share, of which (a) 250,000 shares of Series A Junior Participating
Preferred Stock are authorized for issuance, (b) 250,000 shares of UNC Series B
Preferred Stock are authorized, and (c) 250,000 of Series C Senior Cumulative
Preferred Stock are authorized.
Section 1.65. "UNC Proxy Statement" shall mean the UNC Proxy
Statement to be distributed by UNC to its stockholders in connection with the
matters to be voted upon at the UNC Stockholders Meeting, as contemplated by
Section 3.1.
Section 1.66. "UNC SEC Reports" shall mean (a) UNC's Annual Reports
on Form 10-K for the fiscal years ended December 31, 1995, December 31, 1994,
and December 31, 1993, and (b) all other documents, reports and registration
statements filed by UNC with the SEC pursuant to the Exchange Act and the
Securities Act.
Section 1.67. "UNC Series B Preferred Stock" shall mean the 250,000
authorized, issued and outstanding shares of Series B senior cumulative
convertible UNC Preferred Stock, par value $1.00 per share.
Section 1.68. "UNC Stock" shall mean UNC Common Stock or UNC Series B
Preferred Stock.
Section 1.69. "UNC Subsidiary" or "UNC Subsidiaries" shall mean the
singular or plural reference, as the case may be, to any one or more direct or
indirect Subsidiaries of UNC, all of which are listed (including their states of
incorporation and percentage of outstanding capital stock directly or indirectly
beneficially owned by UNC) on Schedule 1.84.
Section 1.70. "Taxes" shall mean any and all taxes, levies, imposts,
duties, assessments, charges and withholdings imposed or required to be
collected by or paid over to any federal, state, local or foreign Governmental
Authority or any political subdivision thereof, including without limitation
income, gross receipts, ad valorem, value added, minimum tax, franchise, sales,
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use, excise, license, real or personal property, unemployment, disability, stock
transfer, mortgage recording, estimated, withholding or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, and including any
interest, penalties, fines, assessments or additions
to tax imposed in respect of the foregoing, or in respect of any failure to
comply with any requirement regarding Tax Returns.
Section 1.71. "Tax Return" shall mean any report, return, information
statement, payee statement or other information required to be provided to any
federal, state, local or foreign Governmental Authority, or otherwise retained,
with respect to Taxes or the UNC Benefit Plans.
Section 1.72. "Salomon" shall mean Salomon Brothers Inc, financial
advisors to Greenwich.
Section 1.73. "UNC 1996 Management Statements" shall mean the
unaudited financial statements of UNC included in confidential Annex 1.73 to
this Agreement.
ARTICLE II
THE MERGER
Section 2.1. The Merger.
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(a) Subject to the terms and conditions of this Agreement,
at the Effective Time, Merger Sub shall be merged with and into UNC (the
"Merger") and the separate existence of Merger Sub shall thereupon cease, with
UNC being the surviving corporation in the Merger (the "Surviving Corporation").
Upon the effectiveness of the Merger, UNC shall possess all of the rights,
privileges, powers and franchises of all of the Constituent Corporations, and
all property, real, personal and mixed, and all debts due to any of the
Constituent Corporations on whatever account, including stock subscriptions and
all other things in action, of or belonging to each of the Constituent
Corporations shall be vested in the Surviving Corporation; and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter as effectually the property of the Surviving Corporation as
they were of the Constituent Corporations, and the title to any Real Estate
vested by deed or otherwise in any of the Constituent Corporations shall not
revert or be in any way impaired by reason of the Merger; but all rights of
creditors and all liens upon any property of any of the Constituent Corporations
shall be preserved unimpaired, and all debts, liabilities and duties of the
Constituent Corporations shall thenceforth attach to the Surviving Corporation,
and may be enforced against it to the same extent as if said debts, liabilities
and duties had been incurred or contracted by it.
(b) The Certificate of Merger shall be in form and substance
satisfactory to the parties hereto and their respective legal counsel.
(c) The Certificate of Incorporation of Merger Sub as in
effect immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation, and thereafter may be amended in
accordance with its terms and as provided by law.
(d) The Bylaws of Merger Sub as in effect at the Effective
Time shall be the Bylaws of the Surviving Corporation.
(e) The entire board of directors of the Surviving
Corporation shall consist of (i) the existing directors of Merger Sub at the
Effective Time or (ii) such other Persons as shall be determined solely by GE
pursuant to the terms and conditions of the GE-Greenwich Merger Agreement (the
"Surviving Corporation Board"). The members of the Surviving Corporation Board
shall serve until their respective successors are duly elected and qualified in
the manner provided in the Certificate of Incorporation and Bylaws of the
Surviving Corporation, or as otherwise provided by law. All of the members of
the Board of Directors of UNC shall tender their written resignations effective
as of the Effective Time.
(f) The officers of the Surviving Corporation shall
initially consist of the persons listed in Schedule 2.1(f) or such other persons
acceptable to the Surviving Corporation Board; which officers shall
serve until their successors are duly elected and qualified in the manner
provided in the Certificate of Incorporation and Bylaws of the Surviving
Corporation, or as otherwise provided by law.
(g) Restructuring. The parties agree that, at the request of
-------------
Greenwich, one or more other Persons may be added or substituted as Constituent
Corporations, and that a Constituent Corporation other than UNC may be
designated as the Surviving Corporation, in the Merger, provided that there is
no diminution or impairment of the rights and benefits inuring to the benefit of
the stockholders, officers, or directors of UNC hereunder and no increase in the
obligations or potential obligations of any of the foregoing as a result
thereof.
Section 2.2. Conversion of Securities. At the Effective Time, by
------------------------
virtue of the Merger and without any action on the part of Merger Sub, UNC, or
any holder of the securities of either:
(a) Common Shares. Each share of UNC Common Stock issued
-------------
and outstanding immediately before the Effective Time (other than Treasury
Shares to be canceled pursuant to Section 2.2(c) and any Dissenting Shares (as
hereinafter defined)) shall be canceled and shall be converted automatically
into the right to receive an amount equal to $15.00 in cash (the "Merger
Consideration") payable, without interest, to the holder of such share upon
surrender, in the manner provided in Section 2.3, of the certificate that
formerly evidenced such share.
(b) Preferred Shares. Each share of UNC Series B Preferred
----------------
Stock issued and outstanding immediately before the Effective Time shall be
canceled and shall be converted automatically into the right to receive an
amount equal to $15.00 in cash multiplied by the number of shares (including any
fraction of a share) of UNC Common Stock into which such share of UNC Series B
Preferred Stock is convertible immediately before the Effective Time.
(c) Treasury Shares. All issued and outstanding shares of
---------------
UNC Stock which are held by UNC, any Subsidiary of UNC, Greenwich, Merger Sub or
any other Subsidiary of Greenwich ("Treasury Shares") shall be canceled and no
consideration shall be issued in respect thereof.
(d) Dissenting Shares. Notwithstanding the foregoing
-----------------
provisions or any other provision of this Agreement to the contrary, shares of
UNC Stock held by any holder who shall have taken the necessary steps under the
DGCL to dissent and demand payment and is otherwise entitled to such payment
under the DGCL, if the DGCL provides for such payment in connection with the
Merger ("Dissenting Shares"), shall not be converted into the right to receive
Merger Consideration at or after the Effective Time unless and until the holder
of such Dissenting Shares withdraws his or her demand for such appraisal with
the consent of UNC, if required by the DGCL, or becomes ineligible for such
appraisal. If a holder of Dissenting Shares shall withdraw his or her demand for
such appraisal with the consent of UNC, if required by the DGCL, or shall become
ineligible for such appraisal (through failure to perfect or otherwise), then,
as of the Effective Time or the occurrence of such event, whichever last occurs,
such holder's Dissenting Shares shall automatically be converted into and
represent the right to receive the Merger Consideration as provided above. UNC
shall give Greenwich (i) prompt notice of any written demands for appraisal,
withdrawals of demands for appraisal and any other instruments served pursuant
to Section 262 of the DGCL received by UNC, and (ii) the opportunity to direct
all negotiations and proceedings with respect to demands for appraisal under
Section 262 of the DGCL. UNC will not voluntarily make any payment with respect
to any demands for appraisal and will not, except with the prior written consent
of Greenwich, settle or offer to settle any such demands. Each holder of
Dissenting Shares shall have only such rights and remedies as are granted to
such a holder under Section 262 of the DGCL.
(e) Shares of Merger Sub. Each share of Common Stock, par
--------------------
value $.01 per share, of Merger Sub issued and outstanding immediately before
the Effective Time shall be converted into and exchanged for one validly issued,
fully paid and nonassessable share of Common Stock, par value $.01 per share, of
the Surviving Corporation.
Section 2.3. Surrender of Certificates; Stock Transfer Books. (a)
-----------------------------------------------
Before the Effective Time, Merger Sub shall designate a bank or trust company to
act as agent (the "Paying Agent") for the holders of shares of UNC Stock in
connection with the Merger. From and after the Effective Time Greenwich shall
cause funds to be deposited with the Paying Agent sufficient to pay the amounts
to which the holders of shares of UNC Stock shall become entitled pursuant to
Section 2.2. Such funds shall be invested by the Paying Agent as directed by the
Surviving Corporation, provided that such investments shall be in obligations of
or guaranteed by the United States of America or of any agency thereof and
backed by the full faith and credit of the United States of America, in
commercial paper obligations rated A-1 or P-1 or better by Xxxxx'x Investors
Services, Inc. or Standard & Poor's Corporation, respectively, or in deposit
accounts, certificates of deposit or banker's acceptances of, repurchase or
reverse repurchase agreements with, or Eurodollar time deposits purchased from,
commercial banks with capital, surplus and undivided profits aggregating in
excess of $1 billion (based on the most recent financial statements of such bank
which are then publicly available to the SEC or otherwise).
(b) Promptly after the Effective Time, the Surviving
Corporation shall cause to be mailed to each person who was, at the Effective
Time, a holder of record of shares of UNC Stock entitled to receive the Merger
Consideration pursuant to Section 2.2 a form of letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to the
certificates evidencing such shares of UNC Stock ("UNC Certificates") shall
pass, only upon proper delivery of the UNC Certificates to the Paying Agent) and
instructions for use in effecting the surrender of the UNC Certificates pursuant
to such letter of transmittal. Upon surrender to the Paying Agent of a UNC
Certificate, together with such letter of transmittal, duly completed and
validly executed in accordance with the instructions thereto, and such other
documents as may be required pursuant to such instructions, the holder of such
UNC Certificate shall be entitled to receive in exchange therefor the Merger
Consideration for each share of UNC Stock formerly evidenced by such UNC
Certificate, and such UNC Certificate shall then be cancelled. No interest shall
accrue or benefit the holder of such UNC Certificate.
(c) At any time after six (6) months from the Effective
Time, the Surviving Corporation shall be entitled to require the Paying Agent to
deliver to it any funds which had been made available to the Paying Agent and
not disbursed to holders of shares of UNC Stock (including, without limitation,
all interest and other income received by the Paying Agent in respect of all
funds made available to it), and thereafter such holders shall be entitled to
look to the Surviving Corporation (subject to abandoned property, escheat and
other similar laws) only as general creditors thereof with respect to any Merger
Consideration that may be payable upon due surrender of the UNC Certificates
held by them.
(d) After the Effective Time, there shall be no transfers on
the stock transfer books of UNC of any shares of UNC Stock that were outstanding
immediately before the Effective Time. If, after the Effective Time, UNC
Certificates are presented to Greenwich or UNC for transfer, they shall be
cancelled and exchanged for payment of the applicable amount of Merger
Consideration as provided in Section 2.2, in accordance with the procedures set
forth in this Section 2.3.
(e) Notwithstanding the foregoing, neither Greenwich nor UNC
shall be liable to any holder of shares of UNC Common Stock or UNC Series B
Preferred Stock for any payment of the per share cash portion of the Merger
Consideration delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
Section 2.4. Transfer Taxes. If cash is to be paid to a person other
--------------
than the holder in whose name the certificate representing shares of UNC Stock
surrendered in exchange therefor is registered, it shall be a condition of such
exchange that the certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting such
exchange shall pay to the Paying Agent any transfer or other taxes required by
reason of the payment of such cash to a person other than the registered holder
of the certificate surrendered or shall establish to the satisfaction of the
Paying Agent that such tax has been paid or is not applicable.
2.5. Stock Options. All unexercised UNC Stock Options which shall be
-------------
outstanding as at the Effective Time shall be canceled and converted into the
right to receive, in full consideration of such securities, a cash payment equal
to the product of: (A) the aggregate number of shares of UNC Common Stock
-------
issuable upon
exercise of such unexercised UNC Stock Options (the "Unexercised Option Shares")
by (B) the difference between $15.00 and the applicable exercise price per share
----------
attributable to such Unexercised Option Shares (the "Spread").
ARTICLE III
STOCKHOLDER APPROVAL
Section 3.1. Stockholder Approvals.
---------------------
(a) Greenwich hereby covenants to UNC that Greenwich shall
perform its obligations under the GE-Greenwich Merger Agreement with respect to
the submission of the GE/Greenwich Merger Agreement for consideration and
approval to the holders of shares of Greenwich Class A Stock.
(b) This Agreement shall be submitted for consideration and
approval to the holders of shares of UNC Common Stock, at a special or annual
meeting of stockholders duly held for such purpose by UNC. UNC shall promptly
take all steps necessary to duly call, give notice of, convene, and hold such
meeting as soon as practicable following the date upon which the UNC Proxy
Statement shall be approved by the SEC.
(c) The UNC Board of Directors shall recommend that the UNC
stockholders approve and adopt this Agreement and the Certificate of Merger and
the transactions contemplated hereby and thereby, and such recommendation shall
be contained in the UNC Proxy Statement. The Greenwich Board of Directors shall
recommend that the Greenwich stockholders entitled to vote thereon approve the
GE-Greenwich Merger Agreement and the transactions contemplated thereby, and
such recommendation shall be contained in the Proxy Statement of Greenwich in
connection with the GE/Greenwich Merger.
Section 3.2. Effective Time of the Merger. As promptly as
----------------------------
practicable following the satisfaction or, if permissible, waiver of the
conditions set forth in Articles VII, VIII, and IX, the parties hereto shall
cause the Merger to be consummated by filing the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the DGCL, and the
Merger shall become effective in accordance with the terms of the Certificate of
Merger at the time and date contemplated therein (such time and date being
referred to herein as the "Effective Time").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GREENWICH AND MERGER SUB
Each of Greenwich and Merger Sub represents and warrants to UNC as
follows:
Section 4.1. Organization and Authority of the Greenwich and Merger
------------------------------------------------------
Sub. Each of Greenwich and Merger Sub is duly organized, validly existing and
---
in good standing under the laws of its respective jurisdiction of organization.
Each of Greenwich and Merger Sub has full corporate or partnership power to
carry on its respective business as it is now being conducted and to own,
operate and hold under lease its assets and properties as, and in the places
where, such properties and assets now are owned, operated or held. Each of
Greenwich and Merger Sub is duly qualified as a foreign entity to do business,
and is in good standing, in each jurisdiction where the failure to be so
qualified would have a material adverse effect on the ability of each of
Greenwich and Merger Sub to consummate the Merger.
Section 4.2. Authority Relative to this Agreement. The execution,
------------------------------------
delivery and performance of this Agreement and of all of the other documents and
instruments required hereby by Greenwich and Merger Sub are within the corporate
power of Greenwich and Merger Sub. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Greenwich and Merger Sub and no other
corporate proceedings on the part of Greenwich and Merger Sub are necessary to
authorize this Agreement or to consummate the transactions contemplated herein
(other than the
approval of the GE-Greenwich Merger Agreement by a majority of the total votes
cast by holders of Greenwich Class A Stock). This Agreement and all of the other
documents and instruments required hereby have been or will be duly and validly
executed and delivered by Greenwich and Merger Sub and (assuming the due
authorization, execution and delivery hereof and thereof by UNC) constitute or
will constitute valid and binding agreements of Greenwich and Merger Sub,
enforceable against Greenwich and Merger Sub in accordance with their respective
terms, except to the extent that enforceability may be governed by equitable
principles, applicable bankruptcy laws, and other rights affecting creditors
generally.
Section 4.3. Consents and Approvals; No Violations. Except for (i)
-------------------------------------
any applicable requirements of the Securities Act, the Exchange Act, the HSR
Act, Nasdaq and any applicable filings under state securities, "Blue Sky" or
takeover laws, (ii) the filing and recordation of a certificate of merger as
required by the DGCL and (iii) those required filings, registrations, consents
and approvals listed in Schedule 4.4, no filing or registration with, and no
permit, authorization, consent or approval of, any public body or authority is
necessary or required in connection with the execution and delivery of this
Agreement by Greenwich and Merger Sub or for the consummation by Greenwich and
Merger Sub of the transactions contemplated by this Agreement, where the failure
to obtain such permit, authorization, consent or approval would have a material
adverse effect on the ability of Greenwich and Merger Sub to consummate the
Merger. Assuming that all filings, registrations, permits, authorizations,
consents and approvals contemplated by the immediately preceding sentence have
been duly made or obtained, neither the execution, delivery and performance of
this Agreement nor the consummation of the transactions contemplated hereby by
Greenwich and Merger Sub will (i) conflict with or result in any breach of any
provision of the Certificates of Incorporation, bylaws, partnership or joint
venture agreements or other organizational documents of Greenwich or Merger Sub,
(ii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, or otherwise result in any
diminution of any of the rights of Greenwich or Merger Sub with respect to, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, Contract or other instrument or obligation to which Greenwich or Merger
Sub is a party or by which it or any of them or any of their properties or
assets may be bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Greenwich or Merger Sub or any of
their properties or assets, except, in the case of subsections (ii) or (iii)
------
above, for violations, breaches or defaults that would not have a material
adverse effect on the ability of Greenwich and Merger Sub to consummate the
Merger and that will not prevent or delay the consummation of the transactions
contemplated hereby.
Section 4.4. Fees and Expenses of Brokers and Others. None of
---------------------------------------
Greenwich, Merger Sub or any Affiliates of Greenwich (a) has had any dealings,
negotiations or communications with any broker or other intermediary in
connection with the transactions contemplated by this Agreement, (b) is
committed to any liability for any brokers' or finders' fees or any similar fees
in connection with the transactions contemplated by this Agreement, or (c) has
retained any broker or other intermediary to act on its behalf in connection
with the transactions contemplated by this Agreement, except that Greenwich has
engaged Salomon to represent it as its financial advisor in connection with the
transactions contemplated by this Agreement, and shall pay all of Salomon's fees
and expenses in connection with such engagement.
Section 4.5. Accuracy of Information. Neither this Agreement nor any
-----------------------
other document provided by Greenwich or Merger Sub or their employees or agents
to UNC in connection with the transactions contemplated herein contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained therein not misleading.
Section 4.6 GE-Greenwich Merger Agreement. Greenwich has furnished
-----------------------------
to UNC a true and complete copy of the GE-Greenwich Merger Agreement, which GE-
Greenwich Merger Agreement has been duly authorized by the Board of Directors of
Greenwich, and to the Knowledge of Greenwich, by the Board of Directors of GE.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF UNC
UNC represents and warrants to Greenwich and Merger Sub as follows:
Section 5.1. Organization and Authority of the UNC Companies. Each
-----------------------------------------------
of the UNC Companies is duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of organization. Each of the UNC
Companies has full corporate or partnership power to carry on its respective
business as it is now being conducted and to own, operate and hold under lease
its assets and properties as, and in the places where, such properties and
assets now are owned, operated or held. Each of the UNC Companies is duly
qualified as a foreign entity to do business, and is in good standing, in each
jurisdiction where the failure to be so qualified would have a UNC Material
Adverse Effect. Schedule 1.84 constitutes a true and complete list of all of
the Subsidiaries of UNC, and Schedule 1.53B constitutes a true and complete list
of all of the Partnerships in which UNC has an interest. The copies of the
Amended and Restated Certificate of Incorporation and the Bylaws of UNC which
have been delivered to Greenwich are complete and correct and in full force and
effect on the date hereof.
Section 5.2. Capitalization. The authorized capital stock of UNC
--------------
consists of: (a) 12,000,000 authorized shares of UNC Preferred Stock, $1.00 par
value per share, of which, on the Agreement Date (i) 250,000 shares of Series A
Junior Participating Preferred Stock are authorized, none of which are issued,
(ii) 250,000 shares of Series B Preferred Stock are authorized, issued and
outstanding, and (iii) 250,000 shares of Series C Senior Cumulative Preferred
Stock are authorized, none of which are issued; and (b) 50,000,000 authorized
shares of UNC Common Stock, of which, as at December 31, 1996 (i) 18,276,681
shares of UNC Common Stock are issued and outstanding, (ii) 486,500 shares of
UNC Common Stock are held in treasury, (iii) shares of UNC Common Stock are
reserved for issuance pursuant to outstanding Stock Options granted under UNC
Stock Option Plans as described in Schedule 5.2 and (iv) an aggregate of
3,571,429 shares of UNC Common are reserved for issuance upon conversion of UNC
Series B Preferred Stock. All shares of capital stock of UNC which are
outstanding as of the date hereof and which are reserved for issuance pursuant
to UNC Preferred Stock and UNC Stock Options, are duly authorized, and are, or
when issued will be, validly issued, fully paid and nonassessable, and are, or
when issued will not be, not subject to, nor were they issued in violation of,
any preemptive rights. Except as set forth in Schedule 5.2 and in this Section
5.2, there are no shares of capital stock of UNC authorized or outstanding, and
there are no subscriptions, options, conversion or exchange rights, warrants or
other agreements, claims or commitments of any nature whatsoever obligating UNC
or any UNC Subsidiary to issue, transfer, deliver or sell, or cause to be
issued, transferred, delivered or sold, additional shares of the capital stock
of UNC or any UNC Subsidiary or obligating UNC or any UNC Subsidiary to grant,
extend or enter into any such agreement or commitment. UNC has not, since
December 31, 1995, declared or paid any dividend on, or declared or made any
distribution with respect to, or authorized or effected any split-up or any
other recapitalization of, any of the UNC Common Stock, or directly or
indirectly redeemed, purchased or otherwise acquired any of its outstanding
capital stock or agreed to take any such action and will not take any such
action during the period between the date of this Agreement and the Effective
Time. Except as set forth on Schedule 5.2, there are no outstanding options,
warrants, subscriptions, conversion or exchange rights, agreements, claims,
commitments, or other rights to purchase or acquire any capital stock of UNC or
any of the other UNC Companies, and there are no Contracts pursuant to which UNC
or any of the other UNC Companies is bound to sell or issue any shares of its
capital stock, nor are there any Contracts obligating UNC or any of the other
UNC Companies to enter into or grant any such securities or rights. All
outstanding shares of UNC Common Stock are duly listed for trading on the NYSE.
(b) Set forth in Schedule 1.84 is the name, percentage
ownership and jurisdiction of incorporation of each UNC or any UNC Subsidiary.
All the outstanding shares of capital stock of each UNC Subsidiary have been
validly issued and are fully paid, nonassessable and are not subject to, nor
were they issued in violation of, any preemptive rights. All outstanding shares
of capital stock of UNC Subsidiaries are owned, directly or indirectly, by UNC,
and, except as disclosed in Schedule 1.84 or in the UNC Financial Statements,
are owned free and clear of all liens, charges, encumbrances, security
interests, equities, options, restrictions on voting rights or rights of
disposition, and claims or third party rights of whatever nature. Except for UNC
Subsidiaries, UNC does
not own, directly or indirectly, any capital stock or other equity securities of
any corporation, partnership, joint venture or other entity or have any direct
or indirect equity or ownership interest in any corporation, partnership, joint
venture or other entity, other than as disclosed on Schedule 5.2 or Schedule
1.53B.
Section 5.3. Authority Relative to this Agreement. The execution,
------------------------------------
delivery and performance of this Agreement and of all of the other documents and
instruments required hereby by UNC are within the corporate power of UNC. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of UNC and no other corporate proceedings on the part of UNC are
necessary to authorize this Agreement or to consummate the transactions
contemplated herein (other than, with respect to the Merger, the approval of the
Certificate of Merger by a majority of the outstanding shares of UNC Common
Stock and UNC Series B Preferred Stock at the UNC Stockholders Meeting). This
Agreement and all of the other documents and instruments required hereby have
been or will be duly and validly executed and delivered by UNC and (assuming the
due authorization, execution and delivery hereof and thereof by Greenwich)
constitute or will constitute valid and binding agreements of UNC, enforceable
against UNC in accordance with their respective terms, except to the extent that
enforceability may be governed by equitable principles, applicable bankruptcy
laws, and other rights affecting creditors generally.
Section 5.4. Consents and Approvals; No Violations. Except for (i)
-------------------------------------
any applicable requirements of the Securities Act, the Exchange Act, the HSR
Act, and any applicable filings under state securities, "Blue Sky" or takeover
laws, (ii) the filing and recordation of a certificate of merger as required by
the DGCL and (iii) those required filings, registrations, consents and approvals
listed in Schedule 5.4, no filing or registration with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
or required in connection with the execution and delivery of this Agreement by
UNC or for the consummation by UNC of the transactions contemplated by this
Agreement. Assuming that all filings, registrations, permits, authorizations,
consents and approvals contemplated by the immediately preceding sentence and
the other provisions of this Agreement have been duly made or obtained, neither
the execution, delivery and performance of this Agreement nor the consummation
of the transactions contemplated hereby by UNC will (i) conflict with or result
in any breach of any provision of the Certificates of Incorporation, bylaws,
partnership or joint venture agreements or other organizational documents of any
of the UNC Companies, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, or otherwise
result in any diminution of any of the rights of the UNC Companies with respect
to, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, Contract or other instrument or obligation to which any of
the UNC Companies is a party or by which it or any of them or any of their
properties or assets may be bound, or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any of the UNC Companies or
any of their properties or assets except, in the case of subsections (ii) or
(iii) above, for violations, breaches or defaults that would not have a UNC
Material Adverse Effect and that will not prevent or delay the consummation of
the transactions contemplated hereby.
Section 5.5. Reports and Financial Statements.
--------------------------------
(a) The UNC SEC Reports complied, as of their respective
dates of filing, in all material respects with all applicable requirements of
the Securities Act, the Exchange Act and the rules and regulations of the SEC.
As of their respective dates, none of such forms, reports or documents,
including without limitation any financial statements or schedules included
therein, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading in light of the circumstances under which they
were made.
(b) Each of the balance sheets (including the related notes
and schedules) included in the UNC SEC Reports fairly presented the consolidated
financial position of the UNC Companies as of the respective dates thereof, and
the other related financial statements (including the related notes and
schedules) included therein fairly presented the results of operations and cash
flows of the UNC Companies for the respective fiscal periods or as of the
respective dates set forth therein. Each of the financial statements (including
the related notes and schedules) included in the UNC SEC Reports (i) complied as
to form with the applicable accounting requirements
and rules and regulations of the SEC, and (ii) was prepared in accordance with
GAAP consistently applied during the periods presented, except as otherwise
noted therein and subject to normal year-end and audit adjustments in the case
of any unaudited interim financial statements.
(c) Except for UNC, none of the UNC Companies is required to
file any forms, reports or other documents with the SEC, Nasdaq, the NYSE or any
other foreign or domestic securities exchange or Governmental Authority with
jurisdiction over securities laws. UNC has timely filed all reports,
registration statements and other filings required to be filed by it with the
SEC.
(d) The balance sheet as of December 31, 1996 included in the
UNC 1996 Management Statements fairly presents the consolidated financial
position of the UNC Companies as of that date and the other related financial
statements included therein fairly present the results of operations and cash
flows of the UNC Companies for the year then ended. The UNC 1996 Management
Statements have been prepared in accordance with GAAP consistently applied
during the period presented.
(e) The balance sheet (including the related notes and
schedules) included in the Audited 1996 Statements will, when issued, fairly
present the consolidated financial position of the UNC Companies as of the
respective dates thereof, and the other related financial statements (including
the related notes and schedules) included therein will fairly present the
results of operations and cash flows of the UNC Companies for the respective
fiscal periods or as of the respective dates set forth therein. The Audited 1996
Statements (including the related notes and schedules) will, when issued, (i)
comply as to form with the applicable accounting requirements and rules and
regulations of the SEC, (ii) will have been prepared in accordance with GAAP
consistently applied during the periods presented, except as otherwise noted
therein, and (iii) will not, except as set forth in Schedule 5.5, differ
materially from the UNC 1996 Management Statements.
Section 5.6. Absence of Certain Events. Except as set forth in the
-------------------------
UNC SEC Reports filed before the date of this Agreement or as otherwise
specifically disclosed in Schedule 5.6, none of the UNC Companies has suffered
any change in its business, financial condition, results of operations or
prospects that has had or will have a UNC Material Adverse Effect upon the UNC
Companies. Except as disclosed in the UNC SEC Reports or in Schedule 5.6, or as
otherwise specifically contemplated by this Agreement, there has not been: (i)
any entry into any agreement or understanding or any amendment of any agreement
or understanding between any of the UNC Companies on the one hand, and any of
their respective directors, officers or employees on the other hand, providing
for employment of any such director, officer or employee or any general or
material increase in the compensation, severance or termination benefits payable
or to become payable by any of the UNC Companies to any of their respective
directors, officers or employees (except, in each case, in the ordinary course
of business that are consistent with past practices and that, in the aggregate,
do not result in a material increase in benefits or compensation expense), or
any adoption of or increase in any bonus, insurance, pension or other employee
benefit plan, payment or arrangement (including, without limitation, the
granting of stock options or stock appreciation rights or the award of
restricted stock) made to, for or with any such director, officer or employee;
(ii) any labor dispute that has had or is expected to have a UNC Material
Adverse Effect; (iii) any entry by any of the UNC Companies into any material
commitment, agreement, license or transaction (including, without limitation,
any borrowing, capital expenditure, sale of assets or any mortgage, pledge, lien
or encumbrances made on any of the properties or assets of any of the UNC
Companies) other than in the ordinary and usual course of business; (iv) any
change in the accounting policies or practices of UNC; (v) any damage,
destruction or loss, whether covered by insurance or not, which has had or will
have a UNC Material Adverse Effect; or (vi) any agreement to do any of the
foregoing.
Section 5.7. UNC Proxy Statement. None of the information with
-------------------
respect to the UNC Companies to be included in the UNC Proxy Statement or any
amendments thereof or supplements thereto, at the time of the mailing of the UNC
Proxy Statement or any amendments thereof or supplements thereto and at the time
of the UNC Stockholders' Meeting, will contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The UNC Proxy
Statement will comply as to form in all material
respects with the provisions of the Securities Act, the Exchange Act and the
rules and regulations promulgated thereunder, except that no representation is
made by UNC with respect to information supplied by Greenwich or any affiliate
of Greenwich for inclusion in the UNC Proxy Statement.
Section 5.8. Litigation. There is no action, suit, proceeding or, to
----------
the Knowledge of UNC, investigation pending or, to the Knowledge of UNC,
threatened against or relating to any of the UNC Companies at law or in equity,
or before any federal, state, provincial, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, whether in the
United States or otherwise, that is expected, in the reasonable judgment of UNC,
to have a UNC Material Adverse Effect upon the UNC Companies or that seeks
restraint, prohibition, damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated hereby. To its
Knowledge, UNC has furnished to Greenwich, copies of all attorneys' audit
letters, and has furnished or will upon request furnish to Greenwich such other
documents available to UNC as may be requested by Greenwich in respect of
pending litigation affecting the UNC Companies.
Section 5.9. Title to and Sufficiency of Assets.
----------------------------------
(a) As of the date hereof the UNC Companies own, and as of
the Effective Time the UNC Companies will own, good and marketable title to all
of their assets constituting personal property which is material to any of the
UNC Subsidiaries or any UNC Business (excluding, for purposes of this sentence,
assets held under leases), free and clear of any and all mortgages, liens,
encumbrances, charges, claims, restrictions, pledges, security interests or
impositions, except as disclosed in UNC Financial Statements or in Schedule 5.9.
Such assets, together with all assets held by the UNC Companies under leases,
include all tangible and intangible personal property, Contracts and rights
necessary or required for the operation of the UNC Businesses by the UNC
Companies in accordance with past practice.
(b) As of the date hereof the UNC Companies own, and as of
the Effective Time the UNC Companies will own, good and marketable title to all
of their Real Estate which is material to any of the UNC Subsidiaries or any UNC
Business (excluding, for purposes of this sentence, Real Estate leases), free
and clear of any and all mortgages, liens, encumbrances, charges, claims,
restrictions, pledges, security interests or impositions, except as disclosed in
UNC Financial Statements or in Schedule 5.9. Such Real Estate assets, together
with all Real Estate assets held by the UNC Companies under leases, are adequate
for the operation of the UNC Businesses by the UNC Companies as presently
conducted. The leases to all Real Estate occupied by UNC which is material to
the operation of the UNC Businesses are in full force and effect and no event
has occurred which with the passage of time, the giving of notice, or both,
would constitute a default or event of default by any of the UNC Companies or,
to the Knowledge of UNC, any other Person who is a party signatory thereto.
Section 5.10. Contracts.
---------
(a) Before the Agreement Date UNC has provided Greenwich
with access to, and upon Greenwich's request UNC shall at all times subsequent
to the Agreement Date furnish Greenwich with true and correct copies of, all of
the Contracts to which any UNC Company is a party that constitute: (i) a lease
of any interest in any real property; (ii) a lease of any personal property with
aggregate annual rental payments in excess of $100,000; (iii) an option to
acquire or lease any interest in real property or a right of first refusal with
respect thereto; (iv) an agreement to purchase or sell a capital asset or an
interest in any business entity for a price in excess of $100,000 or a right of
first refusal with respect thereto; (v) an agreement relating to the borrowing
or lending of money or the purchase or sale of securities; (vi) a guaranty,
contribution agreement or other agreement that includes any indemnification,
contribution or support obligation; (vii) an agreement limiting in any material
respect the ability of any UNC Company to compete in any line of business or
with any person; (viii) a customer supply or services agreement to which any of
the UNC Companies is a party or by which any of the UNC Companies is bound
pursuant to which the total amount payable (or reasonably expected to be
payable) to the UNC Companies in any calendar year exceeds $250,000 (a "Material
Customer Agreement"); (ix) an employment or consulting agreement to which any of
the UNC Companies is a party or by which any of the UNC Companies is bound; and
(ix) any other agreement involving an amount over its term in excess of $250,000
(collectively, a "UNC Material Contract"). In addition to the UNC Material
Contracts, UNC shall furnish Greenwich with true and complete copies of all
other Contracts which Greenwich shall reasonably request.
(b) With respect to UNC Material Contracts, except where a
breach of the warranties contained in this Section 5.10 would not have a UNC
---
Material Adverse Effect: (i) the UNC Companies have performed and, to the
Knowledge of UNC, every other party has performed, each material term, covenant
and condition of each of the Material Contracts to which any UNC Company is a
party that is to be performed by any of them at or before the date hereof, (ii)
all of such UNC Material Contracts are in full force and effect and no event has
occurred which, with the passage of time or the giving of notice or both, would
constitute a default, event of default or other breach by UNC or applicable UNC
Subsidiary party thereto which would entitle the other Person who is a signatory
to such UNC Material Contract to terminate the same or declare a default or
event of default thereunder; (iii) neither UNC or any UNC Subsidiary has UNC
Knowledge of that the other Person to any such Material Contract intends to
terminate or amend such UNC Material Contract in any respect, (iv) UNC or the
applicable UNC Subsidiary party to such UNC Material Contract maintain good
business relationships with the other Person to such UNC Material Contract, and
(v) UNC or the applicable UNC Subsidiary party to such UNC Material Contract has
no reason to believe that the other Person to any such UNC Material Contract
does not intend to continue to conduct business with UNC or such UNC Subsidiary
upon the expiration of the stated term of such UNC Material Contract.
Section 5.11. Labor Matters.
-------------
(a) Except as set forth in Schedule 5.11, with respect to
employees of the UNC Companies: (i) to the Knowledge of UNC, no senior
executive, key employee or group of employees has any plans to terminate
employment with any of the UNC Companies; (ii) there is no unfair labor practice
charge or complaint against any UNC Company pending or, to the Knowledge of UNC,
threatened before the National Labor Relations Board or any other comparable
authority; (iii) there is no demand for recognition made by any labor
organization or petition for election filed with the National Labor Relations
Board or any other comparable authority, (iv) no grievance or any arbitration
proceeding arising out of or under collective bargaining agreements is pending
and, to the Knowledge of UNC, no claims therefor have been threatened; (v) the
consummation of the Merger and related transactions contemplated by this
Agreement will not give rise to termination of any existing collective
bargaining agreement or permit any labor organization to reopen negotiations in
respect of wages, hours or working conditions under any of such existing
collective bargaining agreements; and (vi) there is no litigation, arbitration
proceeding, governmental investigation, administrative charge, citation or
action of any kind pending or, to the Knowledge of UNC, proposed or threatened
against any UNC Company relating to employment, employment practices, terms and
conditions of employment or wages and hours.
(b) Except as identified in Schedule 5.11, no UNC Company
has any collective bargaining relationship or duty to bargain with any Labor
Organization (as such term is defined in Section 2(5) of
the National Labor Relations Act, as amended), and no UNC Company has recognized
any labor organization as the collective bargaining representative of any of its
employees.
Section 5.12. Employee Benefit Plans.
----------------------
(a) Schedule 5.12 sets forth a true and complete list of
each Employee Plan within the meaning of Section 4001 of ERISA, for the benefit
of any employee or former employee of any of the UNC Companies or any ERISA
Affiliate. Schedule 5.12 sets forth each of the Employee Plans that is an
"employee benefit plan," as that term is defined in Section 3(3) of ERISA (the
"ERISA Plans").
(b) With respect to each Employee Plan, UNC has heretofore
delivered or will deliver to Greenwich upon request true and complete copies of
each of the following documents:
(i) a copy thereof;
(ii) a copy of the most recent annual report and
actuarial report, if required under ERISA and the most recent report prepared
with respect thereto in accordance with Statement of Financial Accounting
Standards No. 87, Employer's Accounting for Pensions;
(iii) a copy of the most recent Summary Employee Plan
Description required under ERISA with respect thereto;
(iv) if the Employee Plan is funded through a trust
or any third party funding vehicle, a copy of the trust or other funding
agreement and the latest financial statements thereof; and
(v) the most recent determination letter received
from the Internal Revenue Service with respect to each Employee Plan intended to
qualify under Section 401 of the Code.
(c) Except as set forth in Schedule 5.12, no Employee Plan
(or other employee benefit plan, program, agreement or arrangement to which UNC,
any UNC Subsidiary or any ERISA Affiliate made, or was required to make,
contributions during the five (5) year period ending on the Closing Date) is
subject to Title IV of ERISA.
(d) Except as set forth in Schedule 5.12, neither UNC, any
UNC Subsidiary nor any ERISA Affiliate, nor any ERISA Plan, nor any trust
created thereunder, nor, to UNC's Knowledge, any trustee or administrator
thereof has engaged in a transaction in connection with which UNC, any UNC
Subsidiary nor any ERISA Affiliate, any ERISA Plan, any such trust, or any
trustee or administrator thereof, or any party dealing with any ERISA Plan or
any such trust could be subject to either a civil penalty assessed pursuant to
Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976
of the Code, which, in either case, if sustained would have a UNC Material
Adverse Effect.
(e) Except as set forth in Schedule 5.12, no ERISA Employee
Plan or any trust established thereunder has incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, as of the last day of the most recent fiscal year of each
ERISA Plan ended prior to the Closing Date; and all contributions required to be
made with respect thereto (whether pursuant to the terms of any ERISA Plan or
otherwise) on or prior to the Closing Date have been timely made.
(f) Except as set forth in Schedule 5.12, no ERISA Plan is a
"multiemployer pension plan," as defined in Section 3(37) of ERISA, nor is any
ERISA Plan a plan described in Section 4063(a) of ERISA.
(g) Except as set forth in Schedule 5.12, each Employee Plan
has been operated and administered in all material respects in accordance with
its terms and applicable law, including but not limited to ERISA and the Code.
(h) Except as set forth in Schedule 5.12, each ERISA Plan
intended to be "qualified" within the meaning of Section 401(a) of the Code is
so qualified and the trusts maintained thereunder are exempt from taxation under
Section 501(a) of the Code.
(i) Except as set forth in Schedule 5.12, no Employee Plan
provides benefits, including without limitation death or medical benefits
(whether or not insured), with respect to current or former employees of UNC or
an ERISA Affiliate beyond their retirement or other termination of service
(other than (i) coverage mandated by applicable law or (ii) death benefits or
retirement benefits under any "employee pension plan," as that term is defined
in Section 3(2) of ERISA).
(j) Except as set forth in Schedule 5.12, the consummation
of the transactions contemplated by this Agreement will not (i) entitle any
current or former employee or officer of UNC, any UNC Subsidiary or any ERISA
Affiliate to severance pay, unemployment compensation or any other payment,
except as expressly provided in this Agreement or (ii) accelerate the time of
payment or vesting, or increase the amount of compensation due any such employee
or officer, whether pursuant to any Employee Plan or any employment agreement
with such existing or former officer or employee of UNC, any UNC Subsidiary or
any ERISA Affiliate.
(k) Except as set forth in Schedule 5.12, there are no
pending, or to UNC's Knowledge, threatened or anticipated claims by or on behalf
of any Employee Plan, by any employee or beneficiary covered under any such
Employee Plan, or otherwise involving any such Employee Plan (other than routine
claims for benefits).
Section 5.13. Tax Matters.
-----------
(a) Definitions. As used in this Agreement:
-----------
(i) "Tax Ruling" means a written ruling of a taxing
authority relating to Taxes.
(ii) "Closing Agreement" means a written and legally
binding agreement with a taxing authority relating to Taxes.
(b) Representations. Except for representations and
---------------
warranties made with respect to federal and state income Taxes, all
representations and warranties made in this Section 5.13(b) with respect to
Taxes are made to the best Knowledge of UNC. Subject to the foregoing, and
except as set forth in Schedule 5.13:
(i) Filing of Tax Returns. UNC and each of UNC
Subsidiaries have filed all Tax Returns required to be filed by each of them and
such Tax Returns are in all material respects true, complete and correct and
filed on a timely basis.
(ii) Payment of Taxes. UNC and each of UNC
Subsidiaries have, within the time and in the manner prescribed by law, paid all
Taxes that are currently due and payable, except for those contested in good
faith and for which adequate reserves have been taken.
(iii) Tax Liens. There are no tax liens upon the
assets of UNC or of any of UNC Subsidiaries except for statutory liens for
current Taxes not yet due.
(iv) Withholding Taxes. UNC and each of UNC
Subsidiaries have complied in all material respects with the provisions of the
Code relating to the withholding of Taxes, as well as similar provisions under
any other laws, and have, within the time and in the manner prescribed by law,
withheld and paid over to the proper governmental authorities all amounts
required.
(v) Extensions of Time for Filing. Neither UNC nor
any of UNC Subsidiaries has requested any extension of time within which to file
any Tax Return, which Tax Return has not since been filed.
(vi) Waivers of Statute of Limitations. Neither UNC
nor any of UNC Subsidiaries has executed any outstanding waivers or comparable
consents regarding the application of the statute of limitations with respect to
any Taxes or Tax Returns.
(vii) No Deficiencies. The statute of limitations for
the assessment of any federal income Taxes has expired for all income Tax
Returns of UNC and of each of UNC Subsidiaries or such income Tax Returns have
been examined by the Internal Revenue Service for all periods. No deficiency for
any income Taxes has been proposed, asserted or assessed against UNC or any of
UNC Subsidiaries which has not been resolved and paid in full. There are no
deficiencies for state income Taxes which individually, or in the aggregate,
would have a UNC Material Adverse Effect.
(viii) Audit, Administrative and Court Proceedings. No
audits or other administrative proceedings or court proceedings are presently
pending with regard to any Taxes or Tax Returns of UNC or any of UNC
Subsidiaries.
(ix) Powers of Attorney. No power of attorney
currently in force has been granted by UNC or any of UNC Subsidiaries concerning
any Taxes or Tax Returns.
(x) Tax Rulings. Neither UNC nor any of UNC
Subsidiaries has received a Tax Ruling or entered into a Closing Agreement with
any taxing authority that would have a UNC Material Adverse Effect.
(xi) Tax Sharing Agreements. Neither UNC nor any UNC
Subsidiary is a party to any agreement relating to allocating or sharing of
Taxes which has not been disclosed on its Tax Returns.
Section 5.14 Insurance and Reinsurance. Schedule 5.14 sets forth
-------------------------
all insurance and reinsurance policies relating to UNC and any UNC Subsidiary.
UNC and each UNC Subsidiary has given any and all notices and made any and all
payments required to maintain such policies in full force and effect. Except as
set forth in Schedule 5.14: neither UNC nor any UNC Subsidiary has received
notice of default under any such policy, and has not received written notice or,
to the knowledge of UNC or any UNC Subsidiary, oral notice of any pending or
threatened termination or cancellation, coverage limitation or reduction or
material premium increase with respect to such policy.
Section 5.15 Officers' and Directors' Liability Insurance. UNC has
--------------------------------------------
heretofore delivered to Greenwich a copy of its officers' and directors'
liability insurance policy.
Section 5.16. Compliance with Law. The conduct of the UNC
-------------------
Businesses of the UNC Companies and their use of their assets does not violate
or conflict, and has not violated or conflicted, with any Law, which violation
or conflict could have a UNC Material Adverse Effect.
Section 5.17 Environmental Matters. The conduct of the UNC
---------------------
Businesses of the UNC Companies, and their ownership, use or occupancy of any
properties for which the UNC Companies have liability under Environmental Laws,
does not violate or conflict, and has not violated or conflicted, with any
Environmental Law, which violation or conflict could have a UNC Material Adverse
Effect.
Section 5.18. Transactions With Affiliates. For purposes of this
----------------------------
Section, the term "Affiliate" means (a) any holder of 2% or more of the voting
securities of UNC, (b) any director, officer or senior executive of
the UNC Companies, (c) any person, firm or corporation that directly or
indirectly controls, is controlled by or is under common control with any of the
UNC Companies or (d) any member of the immediate family of any of such persons.
Except as set forth in Schedule 5.18 or in the UNC SEC Reports, since
December 31, 1995, the UNC Companies have not, in the ordinary course of
business or otherwise, (a) purchased, leased or otherwise acquired any material
property or assets or obtained any material services from, (b) sold, leased or
otherwise disposed of any material property or assets or provided any material
services to (except with respect to remuneration for services rendered in the
ordinary course of business as a director, officer or employee of one or more of
the UNC Companies), (c) entered into or modified in any manner any Contract
with, or (d) borrowed any money from, or made or forgiven any loan or other
advance (other than expense or similar advances made in the ordinary course of
business) to, any Affiliate. Except as set forth in Schedule 5.18 or in the UNC
SEC Reports, (a) the Contracts of the UNC Companies do not include any material
obligation or commitment between any of the UNC Companies and any Affiliate, (b)
the assets of the UNC Companies do not include any receivable or other
obligation or commitment from an Affiliate to any of the UNC Companies and (c)
the liabilities of the UNC Companies do not include any payable or other
obligation or commitment from any of the UNC Companies to any Affiliate. To the
Knowledge of UNC and except as set forth in Schedule 5.18 or in the UNC SEC
Reports, no Affiliate of any of the UNC Companies is a party to any Contract
with any customer or supplier of UNC that affects in any material manner the
business, financial condition or results of operation of any of the UNC
Companies.
Section 5.19. Fees and Expenses of Brokers and Others. None of the
---------------------------------------
UNC Companies (a) has had any dealings, negotiations or communications with any
broker or other intermediary in connection with the transactions contemplated by
this Agreement, (b) is committed to any liability for any brokers' or finders'
fees or any similar fees in connection with the transactions contemplated by
this Agreement or (c) has retained any broker or other intermediary to act on
its behalf in connection with the transactions contemplated by this Agreement,
except that UNC has engaged X.X. Xxxxxx and Fieldstone Partners ("Fieldstone")
to represent it in connection with such transactions, and shall pay all of X.X.
Xxxxxx'x and Fieldstone's fees and expenses in connection with such engagement,
up to a maximum amount of fees not to exceed $4.0 million in the aggregate.
Greenwich shall have no responsibility for any of such fees or expenses.
Section 5.20. Accuracy of Information. Neither this Agreement nor
-----------------------
any other document provided by the UNC Companies or their employees or agents to
Greenwich in connection with the transactions contemplated herein contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained therein not misleading.
Section 5.21. Absence of Undisclosed Liabilities. None of the UNC
----------------------------------
Companies have, as of the date hereof, or will have, as of the Effective Time,
any liabilities or obligations of any kind, whether absolute, accrued, asserted
or unasserted, contingent or otherwise, that would be required to be disclosed
on a consolidated balance sheet of UNC prepared as of such date, in accordance
with GAAP, except liabilities, obligations or contingencies that were (a)
reflected on or accrued or reserved against in the consolidated balance sheet of
UNC as of September 30, 1996, included in the UNC SEC Reports or reflected in
the notes thereto, or (b) incurred after the date of such balance sheet in the
ordinary course of business and consistent with past practices and which,
individually or in the aggregate, would not have a UNC Material Adverse Effect.
None of the UNC Companies is a party to any Contract, or subject to any charter
or other corporate or partnership restriction, or subject to any judgment,
order, writ, injunction, decree, rule or regulation, which will have a UNC
Material Adverse Effect.
Section 5.22. Opinion of Financial Advisor. UNC has received the
----------------------------
oral opinion of X.X. Xxxxxx dated March 9, 1997, to the effect that the Merger
Consideration and other transactions contemplated by this Agreement are fair to
the stockholders of UNC from a financial point of view and a written opinion to
that effect will be delivered to UNC not later than March 14, 1997.
Section 5.23. DGCL Section 203. UNC has approved the Merger and the
----------------
transactions contemplated hereby so as to cause: (i) the restrictions on
business combinations with interested stockholders set forth in section 203 of
the DGCL to be inapplicable to Greenwich, Merger Sub, the Merger and the
transactions
contemplated hereby and (ii) any other applicable anti-takeover statute or other
applicable statute prohibiting or restricting business combinations to be
inapplicable to Greenwich, Merger Sub, the Merger and the transactions
contemplated hereby.
ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1. Conduct of the Businesses of UNC and Greenwich.
----------------------------------------------
(a) UNC Companies. Except as otherwise expressly provided in
-------------
this Agreement, during the period from the date of this Agreement to the
Effective Time, the UNC Companies will conduct their respective operations
according to their ordinary and usual course of business and consistent with
past practice, and will use their best efforts to preserve intact their business
organizations, to keep available the services of their officers and employees
and to maintain satisfactory relationships with licensors, licensees, suppliers,
contractors, distributors, customers and others having material business
relationships with them. Without limiting the generality of the foregoing, and
except as otherwise expressly provided in this Agreement, before the Effective
Time, none of the UNC Companies will, without the prior written consent of
Greenwich:
(i) amend its Articles or Certificate of
Incorporation, bylaws, partnership or joint venture agreements or other
organizational documents;
(ii) authorize for issuance or issue, sell or deliver
(whether through the issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase or otherwise) any stock of any class or any
other securities or interests, including, without limitation, any additional
shares of UNC Common Stock or shares of UNC Preferred Stock, except as may be
required by the existing terms of the Series B Preferred Stock Agreement, any
UNC Employee Plan, or any issued and outstanding UNC Stock Options disclosed
pursuant to this Agreement;
(iii) split, combine or reclassify any shares of its
capital stock or declare, set aside or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in respect of
its capital stock, or redeem or otherwise acquire any of its securities or any
securities of their respective Subsidiaries and Partnerships;
(iv) (A) except in the ordinary course of business,
incur or assume any Indebtedness not currently outstanding (provided, that
except for additional advances used for general working capital purposes which
are currently permitted under existing senior secured lines of credit, UNC shall
not incur any additional Indebtedness for money borrowed), (B) except in the
ordinary course of business, assume, guarantee, endorse or otherwise become
liable or responsible for the obligations of any person, other than a Subsidiary
or Partnership, (C) make any loans, advances or capital contributions to, or
investments in, any other person (other than customary loans or advances to
employees and non-affiliated customers in accordance with past practice),
(D) except in the ordinary course of business, enter into any Material Contract,
or alter, amend, modify or exercise any option under any existing Material
Contract, (E) enter into any other Contract, or alter, amend, modify or exercise
any option under any existing Contract (other than a Material Contract), except
in the ordinary course of business or in connection with the transactions
contemplated by this Agreement, or (F) make or commit to any single capital
expenditure which is in excess of $100,000 or capital expenditures which are, in
the aggregate, in excess of $1.0 million, except for capital expenditures
------
(x) required to be made under Contracts entered into before the Agreement Date,
and (y) which are reflected in the 1997 UNC capital budget previously furnished
to Greenwich and (z) which are legally required to be made under such Contracts;
(v) enter into, adopt or amend (except as may be
required by Law or as provided in this Agreement) any bonus, profit sharing,
compensation, severance, termination, stock option, stock appreciation right,
restricted stock, pension, retirement, deferred compensation, employment,
consulting, severance or other employee benefit agreements, trusts, plans, funds
or other arrangements for the benefit or welfare of any director, officer or
employee, or increase in any manner the compensation or fringe benefits of any
director, officer or employee or pay any benefit not required by any existing
plan or arrangement (including, without limitation, the granting of stock
options, stock appreciation rights, shares of restricted stock or performance
units) or enter into any Contract to do any of the foregoing (except, in each of
the above instances, for normal increases or other payments in the ordinary
course of business that are consistent with past practices and that, in the
aggregate, do not result in a material increase in benefits or compensation
expense; provided, that UNC shall give Greenwich 72 hours notice before
--------
effecting any change in compensation for any employee whose current annual base
compensation equals or exceeds $100,000, even if Greenwich's approval shall not
be required hereunder);
(vi) except as otherwise permitted in this
Section 6.1, acquire, sell, lease or dispose of any Real Estate or other
material assets, other than inventory in the ordinary course of business;
(vii) accelerate the collection of accounts
receivable, delay the payment of accounts payable or take any action with
respect to credit, collection and fiscal policies and practices, other than in
the ordinary course of business and in a manner consistent with past practice
with respect to accounting policies or practices;
(viii) make any material Tax election or settle or
compromise any material federal, state, local or foreign income Tax liability;
(ix) except for the payment of professional fees,
pay, discharge or satisfy any material claims, liabilities or obligations
(absolute, accrued or unasserted, contingent or otherwise), other than the
payment, discharge or satisfaction in the ordinary course of business of
liabilities reflected or reserved against in UNC's most recent quarterly or
annual financial statements or incurred in the ordinary course of business since
the date thereof; or
(x) hold any meeting of its stockholders except to
the extent required by the request of the stockholders entitled to call a
meeting under UNC's bylaws or the DGCL;
(xi) take any action that would or is reasonably
likely to result in any of the covenants and agreements set forth in this
Article VI or any of the conditions set forth in Article VII not being satisfied
as of the Closing Date; or
(xii) agree in writing or otherwise to take any of
the foregoing actions.
(b) Greenwich. Except as otherwise expressly provided in this
---------
Agreement, during the period from the date of this Agreement to the Effective
Time, Greenwich hereby agrees to conduct its operations as required pursuant to
the terms of its covenants and agreements under the GE-Greenwich Merger
Agreement.
(c) Provision of UNC Information. UNC agrees that, during the
----------------------------
period from the Agreement Date to the Effective Time: (i) UNC will cause its
representatives to meet, upon request, with representatives of Greenwich to
discuss its operations and business prospects; (ii) UNC will provide Greenwich
and its representatives full and prompt access to all financial statements,
accounting work papers, documents, agreements, and other instruments which may
be reasonably requested, and (iii) UNC will promptly advise Greenwich of the
occurrence of any UNC Material Adverse Effect with respect to the UNC Companies.
Section 6.2. No Solicitation. UNC agrees that it shall not, after
---------------
the date hereof and before the Effective Time, directly or indirectly, through
any officer, director, employee, agent or otherwise, solicit, initiate
or encourage submission of proposals or offers from any person relating to any
acquisition or purchase of all or (other than in the ordinary course of
business) a substantial portion of the assets of, or any equity interest in, any
UNC Company or any business combination involving any UNC Company or, except to
the extent required by fiduciary obligations under applicable Law as advised by
counsel, participate in any negotiations regarding, or furnish to any other
person any information with respect to, or otherwise cooperate in any way with,
or assist or participate in, facilitate or encourage, any effort or attempt by
any other person to do or seek any of the foregoing. UNC shall promptly advise
Greenwich if any such proposal or offer, or any inquiry or contact with any
person with respect thereto, is made, shall promptly inform Greenwich of all the
terms and conditions thereof, and shall furnish to Greenwich copies of any such
written proposal or offer and the contents of any communications in response
thereto. UNC shall not waive any provisions of any "standstill" agreements
between UNC and any party, except to the extent that such waiver is, as advised
by counsel, required by fiduciary obligations under applicable Law.
Section 6.3. The UNC Proxy Statement.
-----------------------
(a) UNC shall, as soon as practicable following the
execution of this Agreement, file with the SEC a draft of the UNC Proxy
Statement (in a form mutually acceptable to UNC and Greenwich) as preliminary
proxy materials under the Exchange Act, and shall seek confidential treatment
with respect thereto, and Greenwich shall cooperate with UNC in preparing such
proxy materials. UNC shall respond promptly to any comments made by the SEC with
respect thereto, and Greenwich shall cooperate with UNC in preparing such
responses.
(b) Upon resolution of any SEC comments with respect to the
draft UNC Proxy Statement, or at such other time as may be mutually determined
by the parties hereto, Greenwich and UNC shall each use their respective best
efforts to cause the UNC Proxy Statement to be approved by the SEC under the
Exchange Act as soon as practicable, and UNC shall cause the UNC Proxy Statement
to be mailed to its stockholders at the earliest practicable time after approval
of the same by the SEC; provided, however, that UNC will not file any amendment
or supplement to the UNC Proxy Statement without first furnishing to Greenwich a
copy thereof for review and will not file any such proposed amendment or
supplement to which Greenwich shall reasonably and promptly object.
(c) If, at any time when the UNC Proxy Statement is
required to be delivered to the stockholders of UNC under the Exchange Act, any
event occurs as a result of which either the UNC Proxy Statement as then amended
or supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading, or if it
shall be necessary to amend the UNC Proxy Statement or to supplement such Proxy
Statement in order to comply with the Exchange Act or the rules thereunder, UNC
shall prepare and file with the SEC an amendment or supplement that will correct
such statement or omission or effect such compliance, and Greenwich shall
cooperate with UNC in preparing such amendment or supplement.
Section 6.4. Access to Information; Confidentiality Agreements.
-------------------------------------------------
(a) Between the date of this Agreement and the
Effective Time, the parties hereto will give one another and their authorized
representatives reasonable access during normal business hours to all plants,
offices, warehouses and other facilities and to all books and records of one
another, will permit one another to make such inspections as each may reasonably
request and will cause their officers and those of their Subsidiaries and
Partnerships to furnish such financial and operating data and other information
with respect to their businesses and properties as may from time to time
reasonably be requested. Subject to Section 6.7, all such information shall be
kept confidential in accordance with the Confidentiality Agreement.
(b) Notwithstanding the execution of this
Agreement, the Confidentiality Agreement shall remain in full force and effect
through the Effective Time, at which time the Confidentiality Agreement shall
terminate and be of no further force and effect. Each party hereto hereby waives
the provisions of
the Confidentiality Agreement as and to the extent necessary to permit the
solicitation of votes of the stockholders of Greenwich and UNC pursuant to the
UNC Proxy Statement and to permit consummation of the transactions contemplated
hereby. Each party further acknowledges that the Confidentiality Agreement shall
survive any termination of this Agreement pursuant to Section 11.1.
(c) Notwithstanding anything to the contrary
contained in this Section 6.4 or in the Confidentiality Agreement, each of UNC
and Greenwich hereby agrees to furnish to GE and its designated representatives
all data, financial statements, projections, contracts, agreements, instruments,
writings and other materials concerning the UNC Businesses and the Greenwich
Businesses, and to permit representatives of GE full and complete access to the
personnel and facilities of each of the UNC Businesses and Greenwich Businesses,
to enable GE to verify the accuracy of the representations and warranties of UNC
contained in this Agreement and of Greenwich contained in the GE-Greenwich
Merger Agreement, subject to the respective provisions of the Confidentiality
Agreement and the confidentiality agreement dated March 4, 1997 between
Greenwich and GE.
Section 6.5. Best Efforts. Subject to the terms and conditions
------------
herein provided and subject to fiduciary obligations under applicable Law as
advised by counsel, each of the parties hereto agrees to use its best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper and advisable under applicable Law, to consummate and
make effective the transactions contemplated by this Agreement and the GE-
Greenwich Merger Agreement. In case at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each party to this Agreement
shall take all such necessary action. Greenwich and UNC shall execute any
additional instruments necessary to consummate the transactions contemplated
hereby.
Section 6.6. Consents. UNC and Greenwich shall each use its best
--------
efforts to obtain consents of all third parties and governmental authorities
necessary to the consummation of the transactions contemplated by this Agreement
and the GE-Greenwich Merger Agreement.
Section 6.7. Public Announcements. The parties hereto have agreed
--------------------
upon the text of a joint press release announcing, among other things, the
execution of this Agreement, which joint press release shall be disseminated
promptly following the execution hereof. UNC and Greenwich will consult with
each other and with GE before issuing any additional press release or otherwise
making any additional public statement with respect to this Agreement, the
Certificate of Merger, the Merger, the GE-Greenwich Merger Agreement, the
GE/Greenwich Merger or the transactions contemplated herein or therein and shall
not issue any such press release or make any such public statement before such
consultation or as to which the other party or GE promptly and reasonably
objects, except as may be required by Law in the written opinion of such party's
or GE's counsel or by obligations pursuant to any listing agreement with any
national securities exchange or inter-dealer quotation system, in which case the
party proposing to issue such press release or make such public announcement
shall use its best efforts to consult in good faith with the other party before
issuing any such press release or making any such public announcements.
Section 6.8. [Intentionally omitted]
Section 6.9. Indemnification; Insurance.
--------------------------
(a) Except as may be limited by applicable Law, from the
Effective Time and for a period of seven (7) years thereafter, Greenwich shall
cause the Surviving Corporation to maintain all rights of indemnification
existing in favor of the directors and officers of UNC on terms no less
favorable than those provided in the certificate of incorporation and bylaws of
UNC on the date of this Agreement with respect to matters occurring before the
Effective Time.
(b) Greenwich shall cause to be maintained in effect for
three (3) years from the Effective Time the current policies for directors' and
officers' liability insurance maintained by UNC (provided that Greenwich may
substitute therefor policies of at least the same coverage containing terms and
conditions that are not materially less advantageous) with respect to matters
occurring before the Effective Time, to the extent such insurance is available
to Greenwich in the market.
(c) Greenwich hereby agrees to guarantee the performance
by Merger Sub of its obligations under this Section 6.9.
Section 6.10. Board of Directors Approval. UNC agrees that the UNC
---------------------------
Board of Directors will recommend that its stockholders adopt this Agreement and
approve the Merger unless advised in writing by its counsel that such
recommendation will constitute a violation of its fiduciary duties to its
stockholders.
Section 6.11. UNC Stock Options. UNC agrees not to grant any further
-----------------
Stock Options following the Agreement Date through and including the Effective
Time of the Merger.
Section 6.12. Best Efforts, etc. Subject to the terms and
-----------------
conditions herein provided, each of the parties hereto agrees to use its best
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement and, including obtaining any consents, authorizations, exemptions
and approvals from, and making all filings with, any insurance department,
governmental, regulatory or public body or authority which are necessary or, in
the judgment of the parties, desirable in connection with the transactions
contemplated by this Agreement.
Section 6.13. HSR Act. UNC and Greenwich shall, as soon as
-------
practicable, file Notification and Report Forms under the HSR Act with the
Federal Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "Antitrust Division") and shall use best efforts to
respond as promptly as practicable to all inquiries received from the FTC or the
Antitrust Division for additional information or documentation.
Section 6.14. Interim Financials. Prior to the Effective Time, UNC
------------------
will deliver to Greenwich as soon as available but in no event later than 30
days after the end of any fiscal quarter, a consolidated statement of financial
position of UNC and its Subsidiaries as at the last day of such fiscal quarter
and the consolidated statements of income and changes in financial position of
such party and its Subsidiaries for the fiscal period then ended (which
statements may be unaudited) prepared in conformity with the requirements of
Form 10-Q under the Exchange Act.
Section 6.15. Material Events. At all times prior to the Effective
---------------
Time, each party shall promptly notify the others in writing of the occurrence
of any event which will or may result in the failure to satisfy any of the
conditions specified in Articles VII, VIII or IX hereof.
Section 6.16. Rights Agreement. The UNC Board of Directors will
----------------
take all necessary action (including, but not limited to redemption) so that, as
of the Effective Time, (i) the Rights Agreement dated as of September 25, 1987,
between UNC and Manufacturers Hanover Trust Company, as amended on May 16, 1996,
in respect of the potential issuance of Series A Preferred Stock (the "Rights
Agreement") will be terminated and none of Greenwich, GE, or any of their
respective Affiliates will be deemed to be an "Acquiring Person" or an "Adverse
Person" (as such terms are defined in the Rights Agreement) for purposes
thereof, and (iii) a "Distribution Date" (as such term is defined in the Rights
Agreement) shall not occur by virtue of the Merger or the GE-Greenwich Merger
Agreement. UNC will take any and all action reasonably requested by Greenwich to
ensure and
confirm that UNC, Greenwich, and their respective Affiliates will not have any
obligations in connection with the Rights or the Rights Agreement in connection
with the Merger.
Section 6.17 Reversion to Prior Agreement. If the Greenwich-GE
----------------------------
Merger shall have been terminated for any reason (i) Greenwich shall promptly
notify UNC of such termination, and (ii) this Agreement shall be automatically
deemed, without any action by any party hereto, to be further amended, restated
and modified, so that all of the terms and conditions set forth in the Prior
Agreement shall, for all purposes, be deemed to be the terms and conditions of
this Agreement; provided, however, that the term "Outside Effective Time" shall
be amended to mean the date that is 120 days from the date of the notice
delivered by Greenwich to UNC pursuant to this Section 6.17; and provided
further that (A) the term "UNC Common Stock Equivalents shall be deemed to
include any shares of UNC Common Stock issuable upon conversion of the 7-1/2%
UNC Convertible Debentures and (B) the provisions of Section 2.1(g) herein shall
be deemed to be incorporated by reference in the Prior Agreement. Each of
Greenwich and UNC shall thereafter take all actions necessary, including,
without limitation, the execution and delivery of applicable agreements, to
implement the intent of this Section 6.17.
Section 6.18. Amendment of GE-Greenwich Merger Agreement. Without
------------------------------------------
the prior written consent of UNC, Greenwich shall not consent to any amendment
of, or otherwise waive the benefit of, Sections 5.01, 6.06, or 8.01(b) of the
GE-Greenwich Merger Agreement, agree to terminate the GE-Greenwich Merger
Agreement (pursuant to Section 8.01 of the GE-Greenwich Merger Agreement or
otherwise), or otherwise modify or amend the GE-Greenwich Merger Agreement in
any respect that could materially impair or adversely affect the rights or
benefits inuring (directly or indirectly) thereunder to any of the UNC Companies
or their officers, directors, or stockholders. Greenwich further agrees to
cooperate and consult with UNC with respect to, and otherwise keep UNC informed
of developments relating to, satisfaction of the conditions to consummation of
the GE/Greenwich Merger.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF ALL PARTIES
The respective obligation of each party to consummate the Merger is
subject to the satisfaction at or before the Effective Time of the following
conditions precedent:
Section 7.1 Greenwich Stockholder Approval. The transactions
------------------------------
contemplated by the GE-Greenwich Merger Agreement shall have been approved by
the affirmative vote of the holders of Greenwich Class A Stock at a special
stockholders' meeting of Greenwich by the requisite vote in accordance with the
DGCL;
Section 7.2 UNC Stockholder Approval. The transactions
------------------------
contemplated by this Agreement shall have been approved, and this Agreement
shall have been adopted, by the affirmative vote of the holders of a majority of
the outstanding shares of UNC Common Stock at the UNC Stockholders' Meeting;
Section 7.3 Absence of Order. No order, decree or injunction
----------------
shall have been enacted, entered, promulgated or enforced by any United States
court of competent jurisdiction or any United States governmental authority
which prohibits the consummation of the Merger or the GE/Greenwich Merger;
provided, however, that the parties hereto shall use their best efforts to have
any such order, decree or injunction vacated or reversed;
Section 7.4 Certain Approvals. Any waiting period applicable to
-----------------
the Merger and the GE/Greenwich Merger under the HSR Act shall have terminated
or expired, all applicable requirements of the Exchange Act shall have been
satisfied and any applicable filings under state securities, "Blue Sky" or
takeover laws shall have been made;
Section 7.5 Other Consents and Approvals. All other necessary and
----------------------------
material governmental, regulatory, stockholder and third party lender, customer
or other clearances, consents, licenses or approvals shall have been received.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF GREENWICH AND MERGER SUB
Each and every obligation of Greenwich and Merger Sub under this
Agreement shall be subject to the satisfaction, on or before the Closing Date,
of each of the following conditions, each of which may be waived by Greenwich
and Merger Sub as provided herein except as otherwise provided by law.
Section 8.1 Representations and Warranties True. The
-----------------------------------
representations and warranties of UNC contained in this Agreement shall be true
and correct in all material respects as of the Agreement Date and shall be
deemed to have been made again at and as of the Closing Date and shall then be
true and correct in all material respects, and at the Closing UNC shall have
delivered to Greenwich a certificate to that effect signed by the Chief
Executive Officer and the principal financial officer of UNC.
Section 8.2 UNC's Performance. Each of the obligations of UNC
-----------------
to be performed by it on or before the Closing Date pursuant to the terms of
this Agreement shall have been duly performed in all material respects by the
Closing Date, including all covenants and agreements of UNC set forth in Article
V and Article VI hereof, and at the Closing UNC shall have delivered to
Greenwich a certificate to that effect signed by the Chief Executive Officer and
the principal financial officer of UNC.
Section 8.3 Resignation. As at the Effective Time, Xxx X. Xxxxxxx
-----------
shall tender his resignation as Chairman and Chief Executive Officer of UNC.
Such resignation, however, shall not in any way limit or affect Xxx X. Xxxxxxx'x
right to receive his allocable payments contemplated by Section 9.4 and Section
2.2(e).
Section 8.4 Certificates. UNC shall have furnished Greenwich with
------------
such certificates of its officers and others to evidence compliance with the
conditions set forth in this Article VIII as may be reasonably requested by
Greenwich.
Section 8.5 SERP Termination. Subject to the satisfaction of
----------------
Section 9.3, on or before the Closing Date UNC shall have terminated, effective
as of the Agreement Date, any further obligations it has or may have had in
connection with any supplemental executive retirement plans, other than
obligations that have vested as of the Agreement Date.
Section 8.6 Consummation of the GE/Greenwich Merger. All
---------------------------------------
conditions to the consummation of the GE/Greenwich shall have been satisfied or
waived.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF UNC
Each and every obligation of UNC under this Agreement shall be subject
to the satisfaction, on or before the Closing Date, of each of the following
conditions, each of which may be waived by UNC as provided herein except as
otherwise provided by law:
Section 9.1 Representations and Warranties True. The
-----------------------------------
representations and warranties of Greenwich and Merger Sub contained in this
Agreement shall be true and correct in all material respects as of the Agreement
Date and shall be deemed to have been made again at and as of the Closing Date
and shall then be true and correct in all material respects, and at the Closing,
Greenwich and Merger Sub shall have each delivered to UNC a certificate to that
effect signed by the Chief Executive Officer and the principal financial officer
of Greenwich.
Section 9.2 Greenwich's and Merger Sub's Performance. Each of the
----------------------------------------
obligations of Greenwich and Merger Sub to be performed by them on or before the
Closing Date pursuant to the terms hereof
shall have been duly performed and complied with in all material respects by the
Closing Date and at the Closing, Greenwich and Merger Sub shall have each
delivered to UNC a certificate to that effect signed by the Chief Executive
Officer and principal financial officer of Greenwich.
Section 9.3 Certificates. Greenwich shall have furnished UNC with
------------
such certificates of their respective officers and others to evidence compliance
with the conditions set forth in this Article IX as may be reasonably requested
by UNC.
Section 9.4 Modification and Assumption of SERP/CIC Payments.
------------------------------------------------
On or before the Closing Date, Greenwich shall have paid the amounts necessary
to fund supplemental executive retirement plan and change-in-control payment
obligations of the UNC Companies as of the Closing Date. Notwithstanding the
foregoing, promptly after the date of this Agreement but before the mailing of
the UNC Proxy Statement, UNC and Greenwich shall consult with GE and UNC and
Greenwich shall use their best efforts to obtain the consent of the employees
who are parties thereto to amend and restructure the existing compensation
arrangements applicable to such employees so that, to the extent possible, no
"parachute payments" (within the meaning of Section 280G(b)(2) of the Code) are
made and no remuneration for which a deduction would be disallowed by reason of
the application of Section 162(m) of the Code is paid to such employees and that
each such employee is afforded alternative compensation arrangements of
substantially equivalent value; provided, however, that obtaining such consent
shall not be a condition to the obligations of Greenwich, Merger Sub, or UNC
under this Agreement.
ARTICLE X
CLOSING
Section 10.1 Time and Place. A closing (the "Closing") shall take
--------------
place to confirm the satisfaction or waiver of the conditions to Closing
contained in Articles VII, VIII and IX at the offices of Greenberg, Traurig,
Hoffman, Rosen, Xxxxxx & Xxxxxxx, PA, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
at 1:00 P.M., local time, or at such other place, at such other time, or on such
other date as the Greenwich and UNC may mutually agree upon for the Closing to
take place.
ARTICLE XI
TERMINATION; AMENDMENT; WAIVER
Section 11.1 Termination. Notwithstanding adoption of this
-----------
Agreement by stockholders of UNC and Greenwich, this Agreement may be
terminated, and the Merger abandoned, at any time prior to the Effective Time of
the Merger:
(a) by the mutual consent of the Boards of Directors of
Greenwich and UNC; or
(b) by either Greenwich or UNC if the Merger shall not
have been consummated on or before September 30, 1997 (the "Outside Effective
Time"); provided, however, that the right to terminate this Agreement under this
Section 11.1(b) shall not be available to any party whose act or omission (which
act or omission was solely within such party's control), shall have resulted in
the Outside Effective Time's having passed without the Merger having been
consummated; and provided further that Greenwich shall be deemed to have agreed
to extend the Outside Effective Time as and to the extent that the outside date
for consummation of the GE/Greenwich Merger may from time to time be extended;
or
(c) by either Greenwich or UNC, if any court of competent
jurisdiction in the United States or other United States governmental body shall
have issued an order, judgment or decree (other than a temporary restraining
order) restraining, enjoining or otherwise prohibiting the Merger and such
order, judgment or decree shall have become final and nonappealable; or
(d) by Greenwich, if any of the following events have
occurred:
(i) the Merger contemplated by this Agreement is
voted upon by holders of UNC Common Stock at the UNC Stockholders' Meeting, and
the votes are not sufficient to satisfy the condition set forth in Section 7.2;
or
(ii) the UNC Board does not recommend in the UNC
Proxy Statement that UNC's stockholders adopt and approve the Merger, this
Agreement and the transactions contemplated hereby and thereby; or
(iii) after recommending in the UNC Proxy Statement
that UNC's stockholders adopt and approve the Merger, this Agreement and the
transactions contemplated hereby, the UNC Board withdraws, modifies or amends
such recommendation in any respect materially adverse to Greenwich; or
(iv) if there shall occur a breach by UNC of any
representation or warranty set forth in this Agreement, which breach has a UNC
Material Adverse Effect and is within the actual knowledge of any Person listed
in Schedule 1.46, or UNC shall breach any covenant or agreement contained in
this Agreement which makes consummation of the transaction contemplated hereby
either impossible or impracticable for Greenwich.
(e) by UNC if, before the Effective Time, a Person or
group makes a bona fide proposal with respect to the acquisition of all or
substantially all of UNC's outstanding capital stock or assets, that the Board
of Directors of UNC believes in good faith after consultation with its financial
advisors, is more favorable, from a financial point of view, to the stockholders
of UNC than the proposal set forth in this Agreement (a "Superior Proposal");
provided that Greenwich does not (in its sole option) elect to make, within ten
--------
Business Days after receiving notice of such Superior Proposal, an offer that
the Board of Directors of UNC believes, in good faith after consultation with
its financial advisors, is at least as favorable, from a financial point of
view, to the UNC stockholders as such Superior Proposal; or
(f) by Greenwich, if there shall have occurred and shall
be continuing a UNC Material Adverse Effect.
Section 11.2 Effect of Termination. In the event of the termination
---------------------
of this Agreement and the Merger by either Greenwich or UNC, this Agreement
shall become void and there shall be no liability hereunder on the part of
Greenwich or UNC or their respective officers or directors except, in each case,
as otherwise provided in Sections 11.3 and 12.1 hereof, which Sections shall
survive any such termination and continue in effect thereafter.
Section 11.3 Termination Payments and Expenses.
---------------------------------
(a) If this Agreement is terminated:
(i) by Greenwich, pursuant to clauses (ii), (iii) or
(iv) of Section 11.1(d); or
(ii) by UNC, pursuant to Section 11.1(e);
then UNC shall promptly pay to Greenwich the sum of $20 million.
(b) Each party hereto acknowledges that the agreements
contained in this Section 11.3 are an integral part of the transactions
contemplated by this Agreement and that, without these agreements, none of the
parties hereto would enter into this Agreement. Accordingly, if any party hereto
fails to pay any amounts pursuant to this Section 11.3, and, in order to obtain
such payment, legal action is commenced which results in a judgment therefor,
the liable party will pay the plaintiff's reasonable costs (including reasonable
attorneys' fees) in connection with such suit, together with interest computed
on any amounts determined pursuant to this Section 11.3 (computed from the date
when such amounts were due and payable pursuant to this Section 11.3) and such
costs (computed from the date or dates incurred) at the prime rate of interest
announced from time to time by Citibank, N.A. The parties' obligations pursuant
to this Section 11.3 will survive any termination of this Agreement.
(c) In the event that Greenwich shall terminate this
Agreement by reason of any of the events specified in Section 11.1, none of the
Greenwich Companies nor their Affiliates shall have any liability or obligation
to any of the UNC Companies or their Affiliates under this Agreement, or
otherwise.
(d) The remedies of Greenwich set forth in this
Section 11.3 constitute full and complete liquidated damages and represent the
sole and exclusive remedies at law of such party as a result of the termination
of this Agreement pursuant to Section 11.3.
(e) Nothing herein contained shall prevent a party
otherwise entitled to seek specific performance of this Agreement from applying
to and obtaining from a court of competent jurisdiction such equitable relief as
such court may deem proper in the circumstances.
(f) Except as provided in this Section 11.3, all costs and
expenses incurred in connection with this Agreement shall be paid in accordance
with Section 12.1.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Expenses. Except as provided in Section 11.3, all
--------
costs and expenses incurred in connection with this Agreement, and the
transactions contemplated hereby and thereby shall be paid by the party
incurring such expenses.
Section 12.2 No Survival of Representations and Warranties. The
---------------------------------------------
respective representations and warranties, obligations, covenants and agreements
of UNC, Greenwich and Merger Sub contained herein or in any Exhibit or Schedule,
certificate or letter delivered pursuant hereto shall expire with, and be
terminated and extinguished by, the effectiveness of the Merger.
Section 12.3 Headings. The descriptive headings of the several
--------
Articles and Sections of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
Section 12.4 Notices. All notices or other communications required
-------
hereunder shall be in writing and shall be deemed given on the date delivered if
delivered personally (including by reputable overnight courier), on the date
transmitted if sent by telecopy (which is confirmed) or 72 hours after mailing
if mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Greenwich, to:
Greenwich Air Services, Inc.
0000 XX 00xx Xxxxxx
Xxxxx International Airport, Building 23
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.,
Chairman and Chief Executive Officer
Telecopy: (000) 000-0000
with a copy to: Xxxxxxxxx Traurig Xxxxxxx Xxxxx Xxxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to UNC, to:
UNC Incorporated
000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxx, Chairman and Chief
Executive Officer
Telecopy: (000) 000-0000
with a copy to: Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.,
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Section 12.5 Assignment. This Agreement and all of the provisions
----------
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests, or obligations hereunder, shall be assigned by
any of the parties hereto without the prior written consent of the other
parties, except that Greenwich may assign all of its rights, interests and
obligations hereunder to GE or to any wholly owned subsidiary of GE, provided
that such GE or such GE Subsidiary agrees in writing to be bound by all of the
terms, conditions and provisions contained herein. Such assignment may be
effected by merging UNC with and into GE or such GE Subsidiary simultaneously
with or subsequent to the Effective Time.
Section 12.6 Complete Agreement. This Agreement, including the
------------------
schedules, exhibits and other writings referred to herein or delivered pursuant
hereto, and the Confidentiality Agreement together contain the entire
understanding of the parties with respect to the Merger and the related
transactions and supersede all prior arrangements or understandings with respect
thereto.
Section 12.7 Modifications, Amendments and Waivers. At any time
-------------------------------------
prior to the Effective Time of the Merger (notwithstanding any stockholder
approval), if authorized by their respective Boards of Directors and to the
extent permitted by law, (i) the parties hereto may, by written agreement,
modify, amend or supplement any term or provision of this Agreement and (ii) any
term or provision of this Agreement may be waived by the party which is, or
whose stockholders are, entitled to the benefits thereof; provided, however,
that after this Agreement is adopted by holders of UNC Common Stock, no such
amendment or modification shall be made which would reduce the amount or change
the type of consideration into which UNC Common Stock is to be converted as
provided in this Agreement or which in any way materially adversely affects the
rights of such stockholders, without the further approval of such stockholders.
Any written instrument or agreement referred to in this paragraph shall be
validly and sufficiently authorized for the purposes of this Agreement if signed
on behalf of Greenwich and UNC by a person authorized to sign this Agreement.
Section 12.8 Counterparts. This Agreement may be executed in two
------------
or more counterparts all of which shall be considered one and the same agreement
and each of which shall be deemed an original.
Section 12.9 Governing Law. This Agreement shall be governed by
-------------
the laws of the State of Delaware (regardless of the laws that might be
applicable under principles of conflicts of law) as to all matters, including
but not limited to matters of validity, construction, effect and performance.
Section 12.10 Accounting Terms. All accounting terms used herein
----------------
which are not expressly defined in this Agreement shall have the respective
meanings given to them in accordance with GAAP.
Section 12.11 Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 12.12 Schedules to Prior Agreement. The Schedules to the
----------------------------
Prior Agreement shall constitute and be deemed the Schedules to this Agreement.
IN WITNESS WHEREOF, Greenwich, and UNC have caused this Agreement to
be signed by their respective officers hereunto duly authorized, all as of the
date first written above.
GREENWICH AIR SERVICES, INC.
By:
----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chairman and Chief Executive Officer
ATTEST:
CONDOR ACQUISITION CORP.
By:
----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chairman and Chief Executive Officer
ATTEST:
UNC INCORPORATED
By:
----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
ATTEST:
