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EXHIBIT 2.4
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FIRST AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER
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This Amendment to the Agreement and Plan of Merger (the "Amendment") is
made and entered into this 31st day of May 1997 by and among Unified
Holdings, Inc., a Delaware corporation ("Unified"), HFI Acquisition
Corporation, a Kentucky corporation and wholly owned subsidiary of Unified
("Merger Sub" and, collectively with Unified, the "Buyers"), Health
Financial, Inc., a Kentucky corporation ("Seller"), and Xx. Xxxxxxx X.
Xxxxxx, the sole shareholder of Seller ("Shareholder").
WITNESSETH:
WHEREAS, Unified, Merger Sub, Seller and Shareholder entered into that
certain Agreement and Plan of Merger dated April 25, 1997 (the "Agreement");
and
WHEREAS, the respective Board of Directors of Unified, Merger Sub and
Seller as well as Stockholder have heretofore approved the merger of Merger
Sub with and into Seller; and
WHEREAS, each of Unified, Merger Sub, Seller and Shareholder believes
that based upon events subsequent to April 25, 1997, certain provisions of
the Agreement should be amended to change the following: (i) the means of
effecting the proposed transaction; and (ii) the conditions to each party's
obligations to effect the proposed transaction.
NOW THEREFORE, in consideration of the premises and the agreements
herein contained, the receipt and adequacy of which are hereby acknowledged,
the parties hereto agree that the Agreement is hereby amended in each of the
following respects:
(1) Article I is hereby amended in its entirety to read as follows:
"THE STOCK PURCHASE
1.01 The Stock Purchase. Shareholder agrees to sell, and Unified
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agrees to purchase, all of the issued and outstanding shares of
common stock, no par value, of Seller ("Seller Common Stock")
(the "Stock Purchase Transaction"). The purchase price shall
be 325,000 shares of common stock, $0.01 par value, of Unified
("Unified Common Stock"), in the aggregate (the "Stock Purchase
Consideration").
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1.02. Closing. The closing (the "Closing") of the Stock Purchase
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Transaction shall take place at 10:00 a.m., local time, on the date
that the Effective Time (as defined in Section 1.03) occurs (the
"Closing Date"), or at such other time, and at such place, as Unified
and Shareholder shall agree.
1.03. Effective Time. The Stock Purchase Transaction shall become
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effective (the "Effective Time") as of June 1, 1997. Unified shall,
as soon as practicable after the Effective Time, issue a stock
certificate representing the Stock Purchase Consideration. The
parties contemplate that Unified shall immediately undertake a review
of its books and records in connection with the filing of the
Registration Statement (as defined in Section 5.02(a)) and that the
stock certificate representing the Stock Purchase Consideration shall
be issued on the day after such review is completed (the "Issue
Date").
1.04. Boards of Directors and Officers. At the Effective Time, the
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directors and officers of Seller immediately prior to the Effective
Time shall be the directors and officers, respectively, of the Seller
following the Stock Purchase Transaction, and such directors and
officers shall hold office in accordance with the Seller's Bylaws and
applicable law; provided, however, as of the Effective Time, Seller
shall take any and all actions necessary to add Xxxxxxx X. Xxxxxxx as
a member of the Board of Directors of Seller.
1.05. Anti-Dilution Adjustments. If, on the Issue Date, the number
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of issued and outstanding shares of Unified Common Stock exceeds
625,000, excluding shares issued in connection with any possible
acquisition transaction by Unified, then appropriate and
proportionate adjustment or adjustments will be made such that
Shareholder's proportionate interest in the outstanding Unified
Common Stock equals the quotient of 325 divided by 950.
1.06. Material Adverse Effect. As used in the Agreement, the term
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"Material Adverse Effect" with respect to an entity means any
condition, event, change or occurrence that has or may reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), properties, business or results of
operations, of such entity and its "Subsidiaries" (as defined in Rule
1-02 of Regulation S-X promulgated by the Securities and Exchange
Commission (the "SEC")), taken as a whole as reflected in the Seller
Financial Statements (as defined in Section 2.05(b)) or the Unified
Financial Statements (as defined in Section 3.04), as the case may
be; it being understood that a Material Adverse Effect shall not
include: (i) a change with respect to, or effect on, such entity and
its Subsidiaries resulting from a change in law, rule, regulation,
generally accepted accounting principles or regulatory accounting
principles; or (ii) a change disclosed in the Seller Financial
Statements or the Unified Financial Statements, as the case may be."
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(2) The Agreement is hereby amended such that any reference to the
Merger shall mean the Stock Purchase Transaction, any reference to the
Surviving Corporation shall mean Seller and any reference to the Merger
Consideration shall mean the Stock Purchase Consideration.
(3) Section 3.02 is hereby amended to read as follows:
"3.02. Capitalization of Unified. As of the date hereof, Unified
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had designated 10,000 shares of preferred stock, $0.01 par value, of
Unified ("Unified Preferred Stock") as "Series A 8% Cumulative
Preferred Stock," of which 8,486 shares were issued and outstanding,
and 10,000 shares of Unified Preferred Stock as "Series B 8%
Cumulative Preferred Stock, of which 8,583 shares were issued and
outstanding. As of the date hereof, 17,069 shares of Unified
Preferred Stock were issued and outstanding. At the Issue Date,
excluding shares to be issued in connection with any possible
acquisition transaction by Unified, no more than 625,000 shares of
Unified Common Stock will be issued and outstanding. At the Issue
Date, Unified shall have no authorized capital stock other than
Unified Common Stock and Unified Preferred Stock. At the Issue Date,
there shall be no shares of Unified Common Stock reserved for
issuance or issuable pursuant to any (i) Unified employee and/or
director stock option, incentive and/or benefits plans ("Unified
Employee/Director Stock Grants"), (ii) stock split or dividend.
Seller acknowledges that Unified anticipates filing with the
Secretary of State of the State of Delaware, prior to the Issue Date,
a change in the par value of Unified Common Stock to $0.01, (ii) an
increase in the number of shares of Unified Common Stock authorized
to a number equal to or less than 25,000,000, and (iii) a possible
reduction in the number of shares of Unified Preferred Stock
authorized to a number equal to or less than the number currently
outstanding.
Unified continually evaluates possible acquisitions and may prior
to the Issue Date enter into one or more agreements providing for,
and may consummate, the acquisition by it of another company (or the
assets thereof) for consideration that may include Equity Securities.
Notwithstanding the foregoing, neither Unified nor any Unified
Subsidiary has taken any action that would (i) prevent the
transactions contemplated hereby from qualifying as a reorganization
within the meaning of Section 368 of the Code or (ii) materially
impede or delay receipt of any approval referred to in Section
6.01(b) or the consummation of the transactions contemplated by this
Agreement. At the Issue Date, the Unified Common Stock to be issued
in the Stock Purchase Transaction will be duly authorized, validly
issued, fully paid and nonassessable, and will not be issued in
violation of any preemptive right of any shareholder of Unified."
(4) Section 6.01 of the Agreement is hereby amended to eliminate
subsection (d).
(5) Section 6.02 of the Agreement is hereby amended to eliminate
subsections (e) and (f).
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(6) Section 6.03 of the Agreement is hereby amended such that
subsection (e) shall read in its entirety as follows:
"(e) Surrender of Seller Common Stock. Shareholder shall have
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delivered to Unified a stock certificate representing 1,200 shares of
Seller Common Stock, which shares shall be the only shares of Seller
Common Stock issued and outstanding. In addition, Shareholder shall
represent to Unified that he has full power and authority to
exchange, sell, assign and transfer such shares of Seller Common
Stock and that, when the same are accepted by Unified, Unified will
acquire good, marketable and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances, and that
such shares are not subject to any adverse claims or proxies."
(7) Section 7.01 of the Agreement is hereby amended to eliminate
subsection (f).
(8) The third sentence of Section 9.01 is hereby amended in its
entirety to read as follows:
"In the event of consummation of the Stock Purchase Transaction,
the agreements contained in or referred to in Sections 5.02(b), 5.06,
5.08, 5.09, 5.12, 5.13 and 5.14 and Article 8 shall survive the
Effective Time."
(9) Section 9.01 is hereby amended by appending the following sentence
to the end thereof:
"The representations set forth in Section 3.02 shall survive until
the Issue Date."
(10) The second sentence of Section 9.02 is hereby amended in its
entirety to read as follows:
"There shall not be any third party beneficiaries of any
provisions hereof except for Sections 5.08, 5.09 and 5.12 and Article
8, which may be enforced against Buyers, Seller or Shareholder by the
parties therein identified."
Other than as amended hereby, the Agreement remains in full force and
effect. This Amendment may be executed in several counterparts, each of
which shall be deemed the original, but all of which together constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
UNIFIED HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Chairman and
Chief Executive Officer
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx, President and
Chief Operating Officer
HFI ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, President and
Chief Executive Officer
HEALTH FINANCIAL, INC.
By: /s/ Xx. Xxxxxxx X. Xxxxxx
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Xx. Xxxxxxx X. Xxxxxx, President
"SHAREHOLDER"
/s/ Xx. Xxxxxxx X. Xxxxxx
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Xx. Xxxxxxx X. Xxxxxx
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