AGREEMENT AND PLAN OF MERGER
dated as of December 14, 1997
by and among
XXXXX XXXXXXX COMPANIES INC.
U.S. BANCORP
and
CUB ACQUISITION CORPORATION
AGREEMENT AND PLAN OF MERGER, dated as of December 14, 1997 (this
"Agreement"), by and among Xxxxx Xxxxxxx Companies Inc. (the "Company"), U.S.
Bancorp (the "Acquiror") and Cub Acquisition Corporation (the "Merger
Subsidiary").
RECITALS
A. The Company. The Company is a Delaware corporation, having
its principal place of business in Minneapolis, Minnesota.
B. The Acquiror. The Acquiror is a Delaware corporation, having its
principal place of business in Minneapolis, Minnesota.
C. The Merger Subsidiary. The Merger Subsidiary is a Delaware
corporation, having its principal place of business in Minneapolis, Minnesota.
The Merger Subsidiary is a wholly owned subsidiary of the Acquiror that has been
organized for the purpose of effecting the Merger in accordance with this
Agreement.
D. The Merger. Subject to the terms and conditions contained in this
Agreement, the parties to this Agreement intend to effect the merger of the
Merger Subsidiary with and into the Company, with the Company being the
corporation surviving such merger.
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements contained herein, the
parties agree as follows:
ARTICLE I
Certain Definitions; Interpretation
1.01 Certain Definitions. The following terms are used in this
Agreement with the meanings set forth below:
"Acquiror" has the meaning assigned in the preamble to this
Agreement.
"Acquiror Common Stock" means the Common Stock, par value $1.25 per
share, of the Acquiror.
"Acquisition Proposal" has the meaning assigned in Section 6.06.
"Acquisition Transaction" means a transaction or series of
transactions that, directly or indirectly, in substance constitutes a
disposition of all or any substantial part of the assets or business of
the Company and its Subsidiaries, taken as a whole, whether by means of
(a) a merger or consolidation, or any similar transaction, (b) a purchase,
lease or other sale, transfer or disposition, (c) a purchase or other
acquisition (including by way of merger, consolidation, share exchange or
otherwise) by a person (including a group that would be aggregated for
purposes of Section 13(d) of the Exchange Act) of securities representing
15% or more of the voting power of the Company or 50% or more of any of
its Significant Subsidiaries or (d) otherwise.
"Affiliate" means, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the purposes of
this definition, "control" when used with respect to any specified person
means the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" means this Agreement, as amended or modified from time
to time in accordance with Section 9.02.
"AMEX" means the American Stock Exchange.
"Base Period Stock Price" means the average of the mean high and low
sales prices per share of the Acquiror Common Stock on the NYSE Composite
Transactions Tape, as reported by the Wall Street Journal, for each of the
five consecutive trading days immediately preceding the date of the
Effective Time.
"Certificate of Incorporation" has the meaning assigned in
Section 2.01(b).
"CFTC" means the United States Commodities Futures Trading
Commission.
"Client" means any person to whom the Company or any of its
Subsidiaries provides services under any Contract.
"Closing" and "Closing Date" have the meanings assigned in
Section 2.03.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company Common Stock Conversion Ratio" shall be defined as the
ratio of $37.25 and the Base Period Stock Price rounded to the nearest
1/1000th of a share.
"Company" has the meaning assigned in the preamble to this
Agreement.
"Company Common Stock" means the common stock, par value $1.00 per
share, of the Company.
"Company ESOP" means the Xxxxx Xxxxxxx Companies ESOP.
"Company Preferred Stock" means the preferred stock, par value $1.50
per share, of the Company.
"Company Options" means, collectively, outstanding options to
purchase shares of Company Common Stock under the Company's 1993 Omnibus
Stock Plan.
"Company Stock Plans" means, collectively, the Company's 1993
Omnibus Stock Plan, 1983 Book Value Stock Purchase Plan and Stock
Investment Plan.
"Compensation Plans" has, with respect to any person, the meaning
assigned in Section 5.03(r).
"Constitutive Documents" means with respect to any juridical person,
such person's articles or certificates of incorporation, bylaws or similar
constitutive documents.
"Contract" means, with respect to any person, any agreement,
indenture, undertaking, debt instrument, contract, lease, understanding,
arrangement, or commitment to which such person or any of its Subsidiaries
is a party or by which any of them may be bound or to which any of their
properties may be subject.
"Costs" has the meaning assigned in Section 6.11(a).
"Disclosure Schedule" has the meaning assigned in Section 5.01.
"Dissenters' Shares" means shares of Company Common Stock the
holders of which shall have perfected their dissenters' rights to payment
in accordance with Section 262 of the GCL as of immediately prior to the
Effective Time.
"DOL" means the United States Department of Labor.
"Effective Time" means the date and time at which the Merger
becomes effective.
"Environmental Laws" means any federal, state or local law,
regulation, order, decree, permit, authorization, common law or agency
requirement with force of law relating to: (a) the protection or
restoration of the environment, health or safety (in each case as relating
to the environment) or natural resources; or (b) the handling, use,
presence, disposal, release or threatened release of any Hazardous
Substance.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" has, with respect to any person, the meaning
assigned in Section 5.03(r).
"ERISA Affiliate Plan" has the meaning assigned in Section
5.03(r).
"ERISA Plans" has the meaning assigned in Section 5.03(r).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Federal Reserve System" means the Board of Governors of the
Federal Reserve System and the Federal Reserve Banks.
"Fee" has the meaning assigned in Section 8.03(a).
"Fee Trigger Event" has the meaning assigned in Section 8.03(a).
"Financial Statements" has the meaning assigned in Section
5.03(h).
"Fund Board" has the meaning assigned in Section 5.03(z).
"GCL" means the General Corporation Law of the State of Delaware.
"Governmental Authority" means any court, administrative agency or
commission or other federal, state or local governmental authority or
instrumentality.
"Hazardous Substance" means any hazardous or toxic substance,
material or waste, including those substances, materials and wastes listed
in the United States Department of Transportation Hazardous Materials
Table (49 CFR Section 172.101), or by the United States Environmental
Protection Agency as hazardous substances (40 CFR Part 302) and amendments
thereto, petroleum products or other such substances, materials and wastes
that are or become regulated under any applicable local, state or federal
law, including petroleum compounds, lead, asbestos and polychlorinated
biphenyls.
"Indemnified Parties" has the meaning assigned in Section 6.11(a).
"Investment Advisers Act" means the Investment Advisers Act of 1940,
as amended, and the rules and regulations thereunder.
"Investment Company" has the meaning assigned for purposes of the
Investment Company Act, disregarding Section 3(c) thereof, that is
sponsored, organized, advised or managed by the Company or one of its
Subsidiaries (including the Registered Funds).
"Investment Company Act" means the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
"IRS" means the United States Internal Revenue Service.
"Liens" means a charge, mortgage, pledge, security interest,
restriction (other than a restriction on transfer arising under Securities
Laws), claim, lien, or encumbrance of any nature whatsoever.
"Litigation" has the meaning assigned in Section 5.03(l).
"Material" means, with respect to any fact, circumstance, event or
thing relating to the Acquiror, the Company or the Surviving Corporation,
respectively, that such fact, circumstance, event or thing is material to
(a) the financial position, results of operation, assets, properties or
business of the Company and its subsidiaries, the Acquiror and its
subsidiaries, or the Surviving Corporation and its subsidiaries, in each
case taken as a whole, or (b) the ability of either the Acquiror or the
Company timely to perform its obligations under this Agreement or
otherwise to consummate the transactions contemplated by this Agreement.
"Material Adverse Effect" means, with respect to the Acquiror, the
Company, or the Surviving Corporation, respectively, an effect that,
individually or in the aggregate, is both Material and adverse with
respect to the Acquiror and its subsidiaries, the Company and its
subsidiaries or the Surviving Corporation and its subsidiaries, in each
case taken as a whole; provided that "Material Adverse Effect" shall not
be deemed to include the effects of (1) changes in the economy of the
United States of America of general scope, (2) changes in laws and
regulations of general applicability, (3) changes in generally accepted
accounting principles or (4) actions or omissions of the Company taken
with the prior written consent of the Acquiror in contemplation of the
Merger.
"Meeting" has the meaning assigned in Section 6.02.
"Merger" has the meaning assigned in Section 2.01.
"Merger Consideration" has the meaning assigned in Section 3.01.
"Merger Subsidiary" has the meaning assigned in the preamble to
this Agreement.
"MSRB" means the Municipal Securities Rulemaking Board.
"Multiemployer Plan" has the meaning assigned in Section 5.03(r).
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange, Inc.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" has, with respect to any person, the meaning assigned
in Section 5.03(r).
"person" means any individual, bank, corporation, limited liability
company partnership, association, joint-stock company, business trust or
unincorporated organization.
"Previously Disclosed" has the meaning assigned in Section 5.01.
"Proxy Statement" has the meaning assigned in Section 6.03.
"Registered Funds" has the meaning assigned in Section 5.03(z).
"Reports" has the meaning assigned in Section 5.03(g).
"Representatives" means, with respect to any person, such person's
directors, officers, employees, legal or financial advisors or any
representatives of such legal or financial advisors.
"Rights" means, with respect to any person, securities or
obligations convertible into or exercisable or exchangeable for, or giving
any person any right to subscribe for or acquire, or any options, calls or
commitments relating to, or any stock or equity appreciation right or
other instrument the value of which is determined in whole or in part by
reference to the market price or value of, shares of capital stock of such
person.
"Section 20 Subsidiary" means U.S. Bancorp Investments, Inc., a
wholly owned direct or indirect Subsidiary of the Acquiror.
"SEC" means the United States Securities and Exchange Commission.
"SEC Documents" has the meaning assigned in Section 5.03(h).
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"Securities Laws" means, collectively, the Securities Act, the
Exchange Act, the Investment Advisers Act, the Investment Company Act
and any state securities and "blue sky" laws.
"Self-Regulatory Organization" means the National Association of
Securities Dealers, Inc., the NYSE, the AMEX, the MSRB, the Chicago Stock
Exchange, The Chicago Mercantile Exchange, the Chicago Board of Trade, the
Cincinnati Stock Exchange, the Minneapolis Grain Exchange and the New York
Futures Exchange, or other commission, board, agency or body that is not a
Governmental Authority but is charged with the supervision or regulation
of brokers, dealers, securities underwriting or trading, stock exchanges,
commodities exchanges, insurance companies or agents, investment companies
or investment advisers, or to the jurisdiction of which the Company or one
of its Subsidiaries is otherwise subject.
"Subsidiary" and "Significant Subsidiary" have the meanings assigned
in Rule 1-02 of Regulation S-X of the SEC.
"Subsidiary Combination" has the meaning assigned in Section 2.05.
"Surviving Corporation" has the meaning assigned in Section 2.01.
"Takeover Laws" has the meaning assigned in Section 5.03(e).
"Taxes" means all taxes, charges, fees, levies or other assessments,
however denominated and whether imposed by a taxing authority within or
without the United States, including, without limitation, all net income,
gross income, gross receipts, sales, use, ad valorem, goods and services,
capital, transfer, franchise, profits, license, withholding, payroll,
employment, employer health, excise, estimated, severance, stamp,
occupation, property or other taxes, custom duties, fees, assessments or
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any taxing
authority whether arising before, on or after the Effective Date.
"Tax Returns" means, collectively, all returns, declarations,
reports, estimates, information returns and statements required to be
filed under federal, state, local or any foreign tax laws.
"Treasury Shares" means shares of Company Common Stock owned by the
Company or any of its Subsidiaries.
1.02 Interpretation. When a reference is made in this Agreement to
Recitals, Sections, Annexes or Schedules, such reference shall be to a Recital
or Section of, or Annex or Schedule to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and are not part of this Agreement. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed followed by the words "without limitation". References herein to
"transactions contemplated by this Agreement" shall be deemed to include a
reference to the Subsidiary Combination. No rule of construction against the
draftsperson shall be applied in connection with the interpretation or
enforcement of this Agreement. Whenever this Agreement shall require a party to
take an action, such requirement shall be deemed an undertaking by such party to
cause its Subsidiaries, and to use its reasonable best efforts to cause its
other Affiliates, to take appropriate action in connection therewith.
ARTICLE II
The Merger
2.01 The Merger. At the Effective Time, the business combination
contemplated by this Agreement shall occur and in furtherance thereof:
(a) Structure and Effects of the Merger. The Merger Subsidiary shall
merge with and into the Company, and the separate corporate existence of
the Merger Subsidiary shall thereupon cease (the "Merger"). The Company
shall be the surviving corporation in the Merger (sometimes hereinafter
referred to as the "Surviving Corporation") and shall continue to be
governed by the laws of the State of Delaware, and the separate corporate
existence of the Company with all its rights, privileges, immunities,
powers and franchises shall continue unaffected by the Merger, except as
set forth in Section 2.01(b). The Merger shall have the effects specified
in the GCL.
(b) Certificate of Incorporation. The certificate of incorporation
of the Surviving Corporation (the "Certificate of Incorporation") shall be
the certificate of incorporation of the Company as in effect immediately
prior to the Effective Time, until duly amended in accordance with the
terms thereof and the GCL, except that Article IV of the Company's
certificate of incorporation shall be amended to read in its entirety as
follows:
"The aggregate number of shares which the Corporation shall
have the authority to issue is 1,000 shares of Common Stock, par
value $1.00 per share."
(c) By-Laws. The by-laws of the Surviving Corporation shall be the
by-laws of the Merger Subsidiary as in effect immediately prior to the
Effective Time, until duly amended in accordance with the terms thereof
and the aforementioned Certificate of Incorporation.
(d) Directors. The directors of the Surviving Corporation shall be
the directors of the Merger Subsidiary immediately prior to the Effective
Time, and such directors, together with any additional directors as may
thereafter be elected, shall hold such office until such time as their
successors shall be duly elected and qualified.
(e) Officers. The officers of the Surviving Corporation shall be the
officers of the Merger Subsidiary immediately prior to the Effective Time
and (to the extent provided for in their respective Employment Agreements)
the Designated Executives, together with any additional officers as may be
agreed upon prior to the Effective Time by the Merger Subsidiary and the
Company or as may be appointed thereafter.
2.02 Effective Time. The Merger shall become effective upon the
filing, in the office of the Secretary of State of the State of Delaware, of a
certificate of merger in accordance with Section 251 of the GCL, or at such
later date and time as may be set forth in such certificate. Subject to the
satisfaction or waiver of the conditions set forth in Article VII, the parties
shall use their reasonable best efforts to cause the Merger to become effective
(a) on a date that is not later than three business days after the last of the
conditions set forth in Article VII (other than conditions relating solely to
the delivery of documents as of the Closing Date) shall have been satisfied or
waived in accordance with the terms of this Agreement (or, at the election of
the Acquiror, on the last business day of the month in which such day occurs) or
(b) on such other date as the parties may agree in writing.
2.03 Closing. The closing of the Merger (the "Closing") shall take
place at the offices of the Acquiror, or at such other place as the parties
shall agree, on the date when the Effective Time is intended to occur (the
"Closing Date").
2.04 Reservation of Right to Revise Structure. At the Acquiror's
election, the Merger may alternatively be structured so that (a) the Company is
merged with the Acquiror or a wholly owned subsidiary of it other than the
Merger Subsidiary or (b) a wholly owned subsidiary of the Acquiror is merged
with and into the Company; provided, however, that no such change shall (1)
alter or change the amount or kind of the Merger Consideration or the treatment
of the holders of Company Options, or (2) materially impede or delay receipt of
any approval or consent referred to in Section 7.01(b) or the consummation of
the transactions contemplated by this Agreement. In the event of such an
election, the parties agree to execute an appropriate amendment to this
Agreement in order to reflect such election.
2.05 Integration of Legal Entities. The parties hereto currently
intend to effectuate, or cause to be effectuated, following the Effective Time,
the combination (the "Subsidiary Combination") of the securities business of
Xxxxx Xxxxxxx Inc. with the Section 20 Subsidiary (under the name U.S. Bancorp
Xxxxx Xxxxxxx Inc.). The parties hereto shall cooperate and take all reasonable,
requisite actions, including executing all requisite documentation, prior to or
following the Effective Time to effect the Subsidiary Combination; provided,
however, that any such actions shall not materially impede or delay receipt of
any approval or consent referred to in Section 7.01(b) or consummation of the
transactions contemplated by this Agreement. The parties also agree to cooperate
and take all reasonable, requisite additional action prior to or following the
Effective Time to merge or otherwise consolidate legal entities to the extent
desirable for regulatory or other reasons; provided, however, that any such
actions shall not materially impede or delay receipt of any approval or consent
referred to in Section 7.01(b) or consummation of the transactions contemplated
by this Agreement.
ARTICLE III
Consideration; Exchange
3.01 Merger Consideration. At the Effective Time, automatically by
virtue of the Merger and without any action on the part of any shareholder:
(a) Outstanding Company Common Stock. Each share of Company Common
Stock, excluding Treasury Shares and Dissenters' Shares, outstanding
immediately prior to the Effective Time shall become and be converted into
the right to receive $37.25 in cash, without interest thereon (the "Merger
Consideration").
(b) Outstanding Merger Subsidiary Common Stock. All shares of
capital stock of the Merger Subsidiary outstanding immediately prior to
the Effective Time shall be converted into one share of Company Common
Stock.
(c) Treasury and Dissenters' Shares. Each share of Company Common
Stock held as Treasury Shares or Dissenters' Shares immediately prior to
the Effective Time shall be canceled and retired at the Effective Time
and, except as set forth in Section 3.04 with respect to Dissenters'
Shares, no consideration shall be issued in exchange therefor.
3.02 Rights as Stockholders; Stock Transfers. At the Effective Time,
holders of Company Common Stock shall cease to be, and shall have no rights as,
stockholders of the Company, other than to receive the Merger Consideration
provided in this Article III. At and after the Effective Time, there will be no
transfers on the stock transfer books of the Company or the Surviving
Corporation of shares of Company Common Stock.
3.03 Payment for Shares. The Acquiror shall make available or cause
to be made available to U.S. Bank National Association (or such other bank as
the Acquiror shall appoint and shall be reasonably acceptable to the Company),
as paying agent (the "Paying Agent"), amounts sufficient in the aggregate to
provide all funds necessary for the Paying Agent to make payments of Merger
Consideration to holders of shares of Company Common Stock that were outstanding
immediately prior to the Effective Time. Promptly after the Effective Time, the
Surviving Corporation shall cause the Paying Agent to mail to each person who
was, at the Effective Time, a holder of record of outstanding shares of Company
Common Stock a form (mutually agreed to by the Acquiror and the Company) of
letter of transmittal and instructions for use in effecting the surrender of the
certificates which, immediately prior to the Effective Time, represented any of
such shares in exchange for payment therefor. Upon surrender to the Paying Agent
of such certificates, together with such letter of transmittal, duly executed
and completed in accordance with the instructions thereto, the Surviving
Corporation shall promptly cause the Paying Agent to pay to each person entitled
thereto a check in the amount to which such person is entitled, after giving
effect to any required tax withholdings. No interest will be paid or will accrue
on the amount payable upon the surrender of any such certificate. If payment is
to be made to a person other than the registered holder of the certificate
surrendered, it shall be a condition of such payment that the certificate so
surrendered be properly endorsed or otherwise in proper form for transfer and
that the person requesting such payment pay any transfer or other taxes required
by reason of the payment to a person other than the registered holder of the
certificate surrendered or establish to the satisfaction of the Surviving
Corporation or the Paying Agent that such tax has been paid or is not
applicable. One hundred and eighty days following the Effective Time, the
Surviving Corporation shall be entitled to cause the Paying Agent to deliver to
it any funds (including any interest received with respect thereto) made
available to the Paying Agent that have not been disbursed to holders of
certificates formerly representing shares of Company Common Stock outstanding on
the Effective Time, and thereafter such holders shall be entitled to look to the
Acquiror only as general creditors thereof with respect to the cash payable upon
due surrender of their certificates. Notwithstanding the foregoing, neither the
Paying Agent nor any party hereto shall be liable to any holder of certificates
formerly representing shares of Company Common Stock for any amount paid to a
public official pursuant to any applicable abandoned property, escheat or
similar laws. The Surviving Corporation shall pay all charges and expenses,
including those of the Paying Agent, in connection with the exchange of cash for
shares of Company Common Stock and the Acquiror shall reimburse the Surviving
Corporation for such charges and expenses.
3 .04 Dissenting Stockholders. Dissenters' Shares shall be purchased
and paid for in accordance with Section 262 of the GCL.
3.05 Options. (a) At the Effective Time each then outstanding
Company Option shall be converted into and become the right to acquire a number
of shares of Acquiror Common Stock, equal to the product, rounded down to the
nearest whole share, of (1) the number of shares of Company Common Stock subject
to the Company Option and (2) the Company Common Stock Conversion Ratio, at a
per share exercise price, rounded up to the nearest cent, equal to (y) the
aggregate exercise price for the shares of Company Common Stock purchasable
pursuant to such Company Option divided by (z) the product of the Company Common
Stock Conversion Ratio and the number of shares of Company Common Stock subject
to the Company Option; provided, however, that in the case of any Company Option
which is an "incentive stock option," as defined under Section 422 of the Code,
the adjustments provided by this Section shall be effected in a manner
consistent with Section 424(a) of the Code. At or prior to the Effective Time,
the Company and the Acquiror shall make all necessary arrangements with respect
to the Company Stock Plans to permit the assumption of such Company Options (or
any substitute options) by the Acquiror pursuant to this Section 3.05.
(b) At the Effective Time, the Acquiror will assume each then
outstanding Company Option, as converted pursuant to this Section 3.05, in
accordance with the terms of the Company's 1993 Omnibus Stock Plan and the stock
option agreement by which it is evidenced. At or prior to the Effective Time,
the Acquiror shall take all corporate action necessary to reserve for issuance a
sufficient number of shares of Acquiror Common Stock for delivery upon exercise
of Company Options assumed by it in accordance with this Section 3.05. Upon
Closing, the Acquiror shall file a registration statement on Form S-3 or Form
S-8, as the case may be (or any successor or other appropriate forms), or
another appropriate form with respect to the shares of Acquiror Common Stock
subject to such Company Options not exercised prior to the Effective Time, and
shall use its best efforts to maintain the effectiveness of such registration
statement (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such Company Options remain outstanding.
ARTICLE IV
Actions Pending the Effective Time
4.01 Forbearances of the Company. Except as expressly contemplated
by this Agreement, without the prior written consent of the Acquiror, the
Company will not, and will cause each of its Subsidiaries not to:
(a) Ordinary Course. Conduct the business of the Company and its
Subsidiaries other than in the ordinary and usual course, or, to the
extent consistent therewith, fail to use reasonable efforts to preserve
intact their business organizations and assets and maintain their rights,
franchises and existing relations with clients, customers, suppliers,
employees and business associates; engage in any new activities or lines
of business; or take any action reasonably likely to have an adverse
affect upon the Company's ability to perform any of its material
obligations under this Agreement.
(b) Capital Stock. Other than pursuant to Rights Previously
Disclosed and outstanding on the date hereof, (1) issue, sell or otherwise
permit to become outstanding, or authorize the creation of, any additional
shares of capital stock of the Company or any of its Subsidiaries or any
Rights in respect thereof, (2) enter into any agreement with respect to
the foregoing, or (3) permit any additional shares of capital stock of the
Company or any of its Subsidiaries to become subject to new grants of
employee or director stock options, other Rights or similar stock-based
employee rights. Without limiting the foregoing, after the date hereof the
Company will not issue or create additional Rights to acquire shares of
Company Common Stock under the Company's 1983 Book Value Stock Purchase
Plan.
(c) Dividends, Etc. (1) Make, declare, pay or set aside for payment
any dividend (other than dividends from wholly owned Subsidiaries to the
Company or another wholly owned Subsidiary of the Company, and regular
quarterly cash dividends on the Company Common Stock at a rate not
exceeding 7 1/2 cents per share per calendar quarter) on or in respect of,
or declare or make any distribution on, any shares of capital stock of the
Company or any of its Subsidiaries or (2) directly or indirectly adjust,
split, combine, redeem, reclassify, purchase or otherwise acquire, any
shares of its capital stock.
(d) Compensation; Employment Agreements; Etc. Enter into, amend,
modify or renew any employment, consulting, severance or similar contracts
with any director, officer or employee of the Company or any of its
Subsidiaries, or grant any salary or wage increase or increase any
employee benefit (including incentive or bonus payments), except (1) for
normal individual increases in compensation to employees in the ordinary
course of business consistent with past practice, (2) for other changes
that are required by applicable law, (3) to satisfy Previously Disclosed
contractual obligations existing as of the date hereof, or (4) for
employment arrangements for, or grants of awards to, newly hired employees
in the ordinary course of business consistent with past practice.
(e) Benefit Plans. Enter into, establish, adopt or amend (except (1)
as may be required by applicable law or (2) to satisfy Previously
Disclosed contractual obligations existing as of the date hereof) any
pension, retirement, stock option, stock purchase, savings, profit
sharing, deferred compensation, consulting, bonus, group insurance or
other employee benefit, incentive or welfare contract, plan or
arrangement, or any trust agreement (or similar arrangement) related
thereto, in respect of any director, officer or employee of the Company or
any of its Subsidiaries, or take any action to accelerate the vesting or
exercisability of stock options, restricted stock or other compensation or
benefits payable thereunder.
(f) Dispositions. Except (1) as Previously Disclosed or (2) sales of
securities or other investments or assets in the ordinary course of
business consistent with past practice, sell, transfer, mortgage, encumber
or otherwise dispose of or discontinue any of its assets, business or
properties which is material to it or any of its Subsidiaries.
(g) Acquisitions. Except (1) as Previously Disclosed or (2) for the
purchase of securities or other investments or assets in the ordinary
course of business consistent with past practice, acquire any assets,
business, or properties of any other person which is material to it or any
of its Subsidiaries.
(h) Constitutive Documents. Amend the Constitutive Documents of the
Company or its Subsidiaries.
(i) Accounting Methods. Implement or adopt any change in its
accounting principles, practices or methods, other than as may be required
by generally accepted accounting principles.
(j) Contracts. Except in the ordinary course of business consistent
with past practice, enter into or terminate any Material Contract or amend
or modify in any material respect any of its existing Material Contracts.
(k) Claims. Except as Previously Disclosed, settle any claim, action
or proceeding, except for any claim, action or proceeding involving solely
money damages in an amount, individually and in the aggregate for all such
settlements, not more than $250,000 and which is not reasonably likely to
establish an adverse precedent or basis for subsequent settlements.
(l) Adverse Actions. Knowingly take any action that is reasonably
likely to result in (1) any of its representations or warranties set forth
in this Agreement being or becoming untrue at any time at or prior to the
Effective Time or (2) any of the conditions to the Merger set forth in
Article VII not being satisfied, except, in each case, as may be required
by applicable law.
(m) Indebtedness. Incur any indebtedness for borrowed money other
than in the ordinary course of business consistent with past practice.
(n) Fund Action. Except as and to the extent required, based upon
the written advice of outside counsel, in the exercise of the fiduciary
obligations of the Company or one of its Subsidiaries to any Investment
Company, request that any action be taken by any Fund Board, other than
(1) routine actions that would not, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect on the Company or any
Investment Company, (2) actions Previously Disclosed or (3) actions
necessary to allow consummation of the Merger or the Subsidiary
Combination.
(o) Commitments. Agree, commit to or enter into any agreement to
take any of the actions referred to in Section 4.01 (a) through (n).
4.02 Forbearances of the Acquiror. Except as expressly contemplated
by this Agreement, without the prior written consent of the Company, the
Acquiror will not, and will cause each of its Subsidiaries not to knowingly take
any action reasonably likely to result in (a) any of the conditions to the
Merger set forth in Article VII not being satisfied, (b) any of its
representations and warranties set forth in this Agreement being or becoming
untrue at any time at or prior to the Effective Time.
ARTICLE V
Representations and Warranties
5.01 Disclosure Schedules. On or prior to the date hereof, the
Company has delivered to the Acquiror, and the Acquiror has delivered to the
Company, a schedule (respectively, its "Disclosure Schedule") setting forth,
among other things, items the disclosure of which is necessary or appropriate
either (a) in response to an express informational requirement contained in or
requested by a provision hereof or (b) as an exception to one or more
representations or warranties contained in Section 5.03 or 5.04, respectively,
or to one or more of its covenants contained in Article VI; provided that (1) no
such item is required to be set forth in the Disclosure Schedule as an exception
to a representation or warranty if its absence is not reasonably likely to
result in the related representation or warranty being deemed untrue or
incorrect under the standard established in Section 5.02 and (2) the mere
inclusion of an item in a Disclosure Schedule as an exception to a
representation or warranty shall not be deemed an admission by a party that such
item (or any undisclosed item or information of comparable or greater
significance) represents a Material exception or fact, event or circumstance
with respect to the Company or the Acquiror, respectively. Information set forth
in a Disclosure Schedule, whether in response to an express informational
requirement or as an exception to one or more representations or warranties or
one or more covenants, in each case that is contained (or incorporated by
reference) in a correspondingly enumerated portion of such Disclosure Schedule,
is described herein as "Previously Disclosed".
5.02 Standard. No representation or warranty of the Company or the
Acquiror contained in Section 5.03 (other than Sections 5.03(i) and (j)) or 5.04
shall be deemed untrue or incorrect, and no party hereto shall be deemed to have
breached a particular representation or warranty, as a consequence of the
existence of any fact, event, or circumstance that should have been disclosed as
an exception to a particular representation or warranty, unless such fact, event
or circumstance, whether individually or taken together with all other facts,
events or circumstances that should have been so disclosed (whether or not as
exceptions) with respect to such particular representation or warranty contained
in Section 5.03 or 5.04, would be Material with respect to the Company or the
Acquiror, respectively.
5.03 Representations and Warranties of the Company. Subject to
Sections 5.01 and 5.02, except as Previously Disclosed, the Company hereby
represents and warrants to the Acquiror and the Merger Subsidiary as follows:
(a) Organization, Standing and Authority. The Company has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Delaware. The Company is duly qualified to do
business and is in good standing in the States of the United States and
foreign jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified. Each of the
Company and its Subsidiaries has in effect all federal, state, local, and
foreign governmental authorizations necessary for it to own or lease its
properties and assets and to carry on its business as it is now conducted.
Xxxxx Xxxxxxx Inc. is duly registered, qualified to do business and in
good standing as a broker-dealer with the SEC, and is a member in good
standing of all relevant Self-Regulatory Organizations.
(b) Capital Stock. As of the date of this Agreement, the Company has
(1) 40,000,000 authorized shares of Company Common Stock, of which not
more than 19,129,429 shares are outstanding and not more than 876 are held
as Treasury Shares, and (2) 300,000 authorized shares of Company Preferred
Stock, none of such shares being outstanding. As of the date of this
Agreement, there were outstanding under the Company Stock Plans, Rights to
acquire not more than an aggregate of 1,998,007 shares of Company Common
Stock subject to adjustment on the terms set forth in the Company Stock
Plans at exercise prices and times set forth in the Company's Disclosure
Schedule. As of the date of this Agreement, the Company has no shares of
Company Common Stock reserved for issuance, other than 1,453,437 shares
reserved under the Company Stock Plans, and the Company has no shares of
Company Preferred Stock reserved for issuance. All the outstanding shares
of Company Common Stock have been duly authorized and validly issued and
are fully paid and nonassessable and were not issued in violation of any
subscriptive or preemptive rights. All the outstanding shares of capital
stock of each of the Company's Subsidiaries owned by the Company or a
Subsidiary of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, and are owned by the Company or a
Subsidiary of the Company free and clear of all Liens. Except as set forth
above and except for Company Common Stock issued after the date hereof
pursuant to the terms of the Company Stock Plans, there are no shares of
capital stock of the Company authorized, issued or outstanding and there
are no preemptive rights or any outstanding Rights of the Company or any
of its Subsidiaries of any character relating to the issued or unissued
capital stock or other securities of the Company or any of its
Subsidiaries (including those relating to the issuance, sale, purchase,
redemption, conversion, exchange, redemption, voting or transfer thereof).
(c) Subsidiaries. The Company has Previously Disclosed a list of all
its Subsidiaries, including the states in which such Subsidiaries are
organized, a brief description of such Subsidiaries' principal activities,
and if any of such Subsidiaries is not wholly owned by the Company or one
of its Subsidiaries, the percentage owned by the Company or any such
Subsidiary and the names, addresses and percentage ownership by any other
person. No equity securities of any of the Company's Subsidiaries are or
may become required to be issued (other than to the Company or a wholly
owned Subsidiary of the Company) by reason of any Rights with respect
thereto. There are no Contracts by which any of the Company's Subsidiaries
is or may be bound to sell or otherwise issue any shares of its capital
stock, and there are no Contracts relating to the rights of the Company to
vote or to dispose of such shares. All of the shares of capital stock of
each of the Company's Subsidiaries are fully paid and nonassessable and
subject to no subscriptive or preemptive rights or Rights and, except as
Previously Disclosed, are owned by the Company or a Company Subsidiary
free and clear of any Liens. Each of the Company's Subsidiaries is in good
standing under the laws of the jurisdiction in which it is organized, and
is duly qualified to do business and in good standing in each jurisdiction
where its ownership or leasing of property or the conduct of its business
requires it to be so qualified.
The Company has Previously Disclosed, as of the date hereof, a list
of all equity securities it or a Company Subsidiary holds involving, in
the aggregate, ownership or control of 5% or more of any class of the
issuer's voting securities or 25% or more of the issuer's equity (treating
subordinated debt as equity) and, as of the Effective Time, no additional
persons would need to be included on such a list. The Company has
Previously Disclosed a list, as of the date hereof, of all partnerships,
limited liability companies, joint ventures or similar entities, in which
it owns or controls an interest, directly or indirectly, and the nature
and amount of each such interest and, as of the Effective Time, no
additional persons would need to be included on such a list.
(d) Corporate Power. The Company and each of its Subsidiaries has
the corporate power and authority to carry on its business as it is now
being conducted and to own or lease all its properties and assets. The
Company has Previously Disclosed a brief description of each line of
business in which the Company or any Company Subsidiary is engaged.
(e) Corporate Authority and Action. The Company has the requisite
corporate power and authority, and has taken all corporate action
necessary, in order (1) to authorize the execution and delivery of, and
performance of its obligations under, this Agreement and (2) subject only
to receipt of the requisite approval of the plan of merger contained in
this Agreement by the holders of at least two-thirds of the outstanding
shares of Company Common Stock, to adopt the plan of merger contained in
this Agreement and, in accordance therewith, to consummate the Merger.
This Agreement constitutes the valid and legally binding agreement of the
Company, enforceable in accordance with its terms.
The Company has taken all action necessary in order to exempt this
Agreement and the transactions contemplated hereby from, and this
Agreement and the transactions contemplated hereby are exempt from, the
requirements of any "moratorium," "control share," "fair price" or other
antitakeover laws and regulations (collectively, "Takeover Laws") of the
State of Delaware, including Section 203 of the GCL, or of any other
State.
(f) No Defaults. Subject to the approval by the holders of at least
two-thirds of the outstanding shares of Company Common Stock, receipt of
the required regulatory approvals, the required filings under federal and
state securities and insurance laws and the approvals of the NYSE and any
other applicable exchange of the Merger and the other transactions
contemplated hereby, the execution, delivery and performance of this
Agreement and the consummation by the Company of the transactions
contemplated hereby, does not and will not (1) constitute a breach or
violation of, or a default under, or cause or allow the acceleration or
creation of a Lien (with or without the giving of notice, passage of time
or both) pursuant to, any law, rule or regulation or any judgment, decree,
order, governmental or non-governmental permit or license, or any Contract
of it or of any of its Subsidiaries or to which the Company or any of the
Company's Subsidiaries or its or their properties is subject or bound, (2)
constitute a breach or violation of, or a default under, the Constitutive
Documents of the Company or any of its Subsidiaries, or (3) require any
consent or approval under any such law, rule, regulation, judgment,
decree, order, governmental or non-governmental permit or license or the
consent or approval of any other party to any such Contract.
(g) Reports. The Company and its Subsidiaries have timely filed all
reports, registrations, statements and other filings, together with any
amendments required to be made with respect thereto, that were required to
be filed since December 31, 1993 with (1) the SEC or the CFTC, (2) any
other applicable federal, state, local or foreign Governmental Authorities
or (3) any Self-Regulatory Organization (all such reports and statements,
including the financial statements, exhibits and schedules thereto, being
collectively referred to herein as the "Reports"), including without
limitation, all reports, registrations, statements and filings required
under the Securities Laws. Each of the Reports, when filed, complied (or
will comply) as to form with the statutes, rules, regulations and orders
enforced or promulgated by the Governmental Authority with which they were
filed.
(h) SEC Documents and Financial Statements. The Company has made
available to the Acquiror copies of each registration statement, offering
circular, report, definitive proxy statement or information statement
under the federal Securities Laws filed or circulated by it with respect
to periods since January 1, 1996 through the date of this Agreement and
will promptly provide each such registration statement, offering circular,
report, definitive proxy statement or information statement filed or
circulated after the date hereof (collectively, the "SEC Documents"), each
in the form (including exhibits and any amendments thereto) filed with the
SEC (or if not so filed, in the form used or circulated).
As of their respective dates (and without giving effect to any
amendments or modifications filed after the date of this Agreement), each
of the SEC Documents, including the financial statements, exhibits and
schedules thereto, filed or circulated prior to the date hereof complied
(and each of the SEC Documents filed after the date of this Agreement,
will comply) as to form with applicable Securities Laws and did not (or in
the case of reports, statements, or circulars filed after the date of this
Agreement, will not) contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in the light of the circumstances
under which they were made, not misleading.
Each of the Company's consolidated statements of condition or
balance sheets included in or incorporated by reference into the SEC
Documents, including the related notes and schedules, fairly presented
(or, in the case of SEC Documents filed after the date of this Agreement,
will fairly present) the consolidated financial position of the Company
and its Subsidiaries as of the date of such statement of condition or
balance sheet and each of the consolidated statements of income, cash
flows and stockholders' equity included in or incorporated by reference
into SEC Documents, including any related notes and schedules
(collectively, the foregoing financial statements and related notes and
schedules are referred to as the "Financial Statements"), fairly presented
(or, in the case of SEC Documents filed after the date of this Agreement,
will fairly present) the consolidated results of operations, cash flows
and stockholders' equity, as the case may be, of the Company and its
Subsidiaries for the periods set forth therein (subject, in the case of
unaudited statements, to normal year-end audit adjustments), in each case
in accordance with generally accepted accounting principles consistently
applied during the periods involved (except as may be noted therein and
except that such unaudited statements include no notes).
(i) Absence of Undisclosed Liabilities. Except as disclosed in the
Financial Statements or the SEC Documents filed prior to the date hereof,
none of the Company or its Subsidiaries has any obligation or liability
(contingent or otherwise), that, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect on the Company.
(j) Absence of Certain Changes. Since September 30, 1996, except as
disclosed in the Financial Statements or the SEC Documents filed after
that date but before the date of this Agreement, the business of the
Company and its Subsidiaries has been conducted in the ordinary and usual
course, consistent with past practice, and there has not been any event,
occurrence, development or state of circumstances or facts which has had
or is reasonably likely to have a Material Adverse Effect on the Company.
(k) Securities. Each of the Company and its Subsidiaries has good
and marketable title to all securities held by it (except securities sold
under repurchase agreements or held in any fiduciary or agency capacity),
free and clear of any Lien, except to the extent such securities are
pledged in the ordinary course of business consistent with prudent
business practices to secure obligations of each of the Company or any of
its Subsidiaries. Such securities are valued on the books of the Company
or its Subsidiaries in accordance with generally accepted accounting
principles.
(l) Litigation; Regulatory Action. Except as disclosed in the
Company's SEC Documents filed before the date of this Agreement, no
litigation, proceeding, investigation or controversy ("Litigation") before
any court, arbitrator, mediator or Governmental Authority is pending
against the Company or any of its Subsidiaries, and, to the best of the
Company's knowledge, no such Litigation has been threatened; neither the
Company nor any of its Subsidiaries or properties is a party to or is
subject to any order, decree, agreement, memorandum of understanding or
similar arrangement with, or a commitment letter or similar submission to,
any Governmental Authority (including the SEC, the Federal Reserve System,
the CFTC and the Federal Trade Commission) charged with the supervision or
regulation of broker-dealers, securities underwriting or trading, stock
exchanges, commodities exchanges, investment companies, investment
advisers or insurance agents and brokers or the supervision or regulation
of the Company or any of its Subsidiaries or any Self-Regulatory
Organization; and neither the Company nor any of the Company Subsidiaries
has been notified by or received another communication from any such
Governmental Authority or Self-Regulating Organization to the effect that
such Governmental Authority or Self-Regulatory Organization is
contemplating issuing or requesting (or is considering the appropriateness
of issuing or requesting) any such order, decree, agreement, memorandum of
understanding, commitment letter or similar submission. Previously
Disclosed is a true and complete list, as of the date hereof, of all
Litigation pending or threatened arising out of any state of facts
relating to the sale of investment products by the Company, the Company
Subsidiaries or any employees thereof (including, without limitation,
equity or debt securities, mutual funds, insurance contracts, annuities,
partnership and limited partnership interests, interests in real estate,
investment banking services, securities underwritings in which the Company
or any of its Subsidiaries was a manager, co-manager, syndicate member or
distributor, Derivatives Contracts ((as hereinafter defined) or structured
notes).
(m) Compliance with Laws. Each of the Company and its Subsidiaries,
and their respective officers and employees:
(1) in the conduct of business is in compliance with all
applicable federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders or decrees
applicable thereto or to the employees conducting such businesses,
and with the applicable rules of all Self-Regulatory Organizations;
(2) has all permits, licenses, authorizations, orders and
approvals of, and has made all filings, applications and
registrations with, all Regulatory Authorities that are required in
order to permit them to own and operate their businesses as
presently conducted; all such permits, licenses, certificates of
authority, orders and approvals are in full force and effect and, to
the Company's knowledge, no suspension or cancellation of any of
them is threatened or reasonably likely; and all such filings,
applications and registrations are current;
(3) since January 1, 1996, has received no notification or
communication from any Governmental Authority or Self-Regulatory
Organization (a) asserting that any of them is not in compliance
with any of the statutes, rules, regulations, or ordinances which
such Governmental Authority or Self-Regulatory Organization
enforces, or has otherwise engaged in any unlawful business
practice, (b) threatening to revoke any license, franchise, permit,
seat on any stock or commodities exchange, or governmental
authorization, (c) requiring any of them (including any of the
Company's or its Subsidiary's directors or controlling persons) to
enter into a cease and desist order, agreement, or memorandum of
understanding (or requiring the board of directors thereof to adopt
any resolution or policy) or (d) restricting or disqualifying the
activities of the Company or any of its Subsidiaries (except for
restrictions generally imposed by rule, regulation or administrative
policy on brokers or dealers generally);
(4) is not aware of any pending or threatened investigation,
review or disciplinary proceedings by any Governmental Authority or
Self-Regulatory Organization against the Company, any of its
Subsidiaries or any officer, director or employee thereof;
(5) is not, nor is any Affiliate of any of them, subject to a
"statutory disqualification" as defined in Section 3(a)(39) of the
Exchange Act or is subject to a disqualification that would be a
basis for censure, limitations on the activities, functions or
operations of, or suspension or revocation of the registration of
any broker-dealer Subsidiary as a broker-dealer, municipal
securities dealer, government securities broker or government
securities dealer under Section 15, Section 15B or Section 15C of
the Exchange Act and there is no reasonable basis for, or proceeding
or investigation, whether formal or informal, or whether preliminary
or otherwise, that is reasonably likely to result in, any such
censure, limitations, suspension or revocation; and
(6) other than Xxxxx Xxxxxxx Inc., is not required to be
registered as an investment company, commodity trading advisor,
commodity pool operator, futures commission merchant, introducing
broker, insurance agent, or transfer agent under any United States
federal, state, local or foreign statutes, laws, rules or
regulations. No broker-dealer Subsidiary acts as the "sponsor" of a
"broker-dealer trading program", as such terms are defined in Rule
17a-23 under the Exchange Act.
(7) in the conduct of their business with respect to employee
benefit plans subject to Title I of ERISA, the Company and its
Subsidiaries have not (i) breached any applicable fiduciary duty
under Part 4 of Title I of ERISA which would subject it to liability
under Sections 405 or 409 of ERISA and (ii) engaged in a "prohibited
transaction" within the meaning of Section 406 of ERISA or Section
4975(c) of the Code which would subject it to liability or Taxes
under Sections 409 or 502(i) of ERISA or Section 4975(a) of the
Code.
(n) Clients. The Company and its Subsidiaries are in compliance with
the terms of each Contract with each Client, and each such Contract is in
full force and effect with respect to the applicable Client. There are no
disputes pending or threatened with any Client or with any former Client.
The Company has made available to the Acquiror true and complete copies of
all advisory, sub-advisory and similar agreements with any Clients.
Each extension of credit by the Company or any of its Subsidiaries
to any Client (A) is in full compliance with Federal Reserve Board
Regulation T or any substantially similar regulation of any Governmental
Authority and, (B) is fully secured, and the Company or such Subsidiary
has a first priority perfected security interest in the collateral
securing such extension of credit.
(o) Registrations. The Company and each of its employees who are
required to be registered as a broker-dealer, an investment adviser, a
registered representative, an insurance agent or a sales person (or in a
similar capacity) with the SEC, the securities commission or similar
authority or insurance authority of any state or foreign jurisdiction or
any self-regulatory body are duly registered as such and such
registrations are in full force and effect. All federal, state and foreign
registration requirements have been complied with and such registrations
as currently filed, and all periodic reports required to be filed with
respect thereto, are accurate and complete.
The Company has made available to the Acquiror true and correct
copies of (A) each Form G-37/G-38 filed with the MSRB since January 1,
1996 and (B) all records required to be kept by the Company under Rule
G-8(a)(xvi) of the MSRB. Since January 1, 1996, there have been no
contributions or payments, and there is no other information, that would
be required to be disclosed by the Company or any of the Company's
Subsidiaries on any such Form or recorded by the Company or any such
Subsidiary pursuant to such Rule.
(p) Environmental Matters. The Company and its Subsidiaries have
complied at all times with applicable Environmental Laws; no property
(including buildings and any other structures) currently or formerly owned
or operated (or which the Company or any of its Subsidiaries would be
deemed to have owned or operated under any Environmental Law) by the
Company or any of its Subsidiaries or in which the Company or any of its
Subsidiaries (whether as fiduciary or otherwise) has a Lien, has been
contaminated with, or has had any release of, any Hazardous Substance in
such form or substance so as to create any liability for the Company or
its Subsidiaries; the Company is not subject to liability for any
Hazardous Substance disposal or contamination on any other third-party
property; within the last six years, the Company and its Subsidiaries are
not received any notice, demand letter, claim or request for information
alleging any violation of, or liability of the Company under, any
Environmental Law; the Company and its Subsidiaries are not subject to any
order, decree, injunction or other agreement with any Governmental
Authority or any third party relating to any Environmental Law; the
Company and its Subsidiaries are not aware of any reasonably likely
liability relating to environmental circumstances or conditions (including
the presence of asbestos, underground storage tanks, lead products or
polychlorinated biphenyls) involving the Company or one of its
Subsidiaries, any currently or formerly owned or operated property
(whether as fiduciary or otherwise), or any reasonably likely liability
related to any Lien held by the Company or one of its Subsidiaries; and
the Company has made available to the Acquiror copies of all environmental
reports, studies, sampling data, correspondence, filings and other
environmental information in its possession or reasonably available to it
relating to the Company or one of its Subsidiaries or any currently or
formerly owned or operated property or any property in which the Company
or one of its Subsidiaries (whether as fiduciary or otherwise) has held a
Lien.
(q) No Brokers. None of the Company or its Subsidiaries, or any of
their directors, officers or employees, has employed any broker or finder,
or incurred any broker's or finder's commissions or fees, in connection
with the transactions contemplated hereby, except that the Company has
engaged Xxxxx, Xxxxxxxx & Xxxxx, Inc. as its financial adviser, the
arrangements with which are Previously Disclosed.
(r) Compensation Plans.
(1) The Company has Previously Disclosed a complete list of
all bonus, deferred compensation, pension, retirement,
profit-sharing, thrift, savings, employee stock ownership, stock
bonus, stock purchase, restricted stock and stock option plans, all
employment or severance contracts, all medical, dental, health and
life insurance plans, all other employee benefit plans, contracts or
arrangements and any applicable "change of control" or similar
provisions in any plan, contract or arrangement maintained or
contributed to by it or any of the Company Subsidiaries for the
benefit of employees, former employees, directors, former directors
or their beneficiaries (the "Compensation Plans"). True and complete
copies of all Compensation Plans, including, but not limited to, any
trust instruments and/or insurance contracts, if any, forming a part
thereof, and all amendments thereto have been made available to the
Acquiror.
(2) All "employee benefit plans" within the meaning of Section
3(3) of ERISA, other than "multiemployer plans" within the meaning
of Section 3(37) of ERISA ("Multiemployer Plans"), covering
employees or former employees of the Company and the Company
Subsidiaries (the "ERISA Plans"), to the extent subject to ERISA,
are in substantial compliance with ERISA. Each ERISA Plan which is
an "employee pension benefit plan" within the meaning of Section
3(2) of ERISA ("Pension Plan") and which is intended to be
qualified, under Section 401(a) of the Code, has received a
favorable determination letter from the IRS with respect to "TRA"
(as defined in Section 1 of IRS Revenue Procedure 93-39), and the
Company is not aware of any circumstances reasonably likely to
result in the revocation or denial of any such favorable
determination letter. There is no pending or, to the knowledge of
the Company, threatened litigation relating to the ERISA Plans.
Neither the Company nor any of its Subsidiaries has engaged in a
transaction with respect to any ERISA Plan that would subject the
Company or any of its Subsidiaries to a tax or penalty imposed by
either Section 4975 of the Code or Section 502(i) of ERISA in an
amount which would be material.
(3) No liability under Subtitle C or D of Title IV of ERISA
has been or is expected to be incurred by the Company or any of its
Subsidiaries with respect to any ongoing, frozen or terminated
"single-employer plan", within the meaning of Section 4001 of ERISA,
currently or formerly maintained by any of them, or the
single-employer plan of any entity which is considered one employer
with the Company under Section 4001 of ERISA or Section 414 of the
Code (an "ERISA Affiliate"). Neither the Company nor any of its
Subsidiaries presently contributes to a Multiemployer Plan, nor have
they contributed to such a plan within the past five calendar years.
No notice of a "reportable event", within the meaning of Section
4043 of ERISA for which the 30-day reporting requirement has not
been waived, has been required to be filed for any Pension Plan or
by any ERISA Affiliate within the past 12-month period.
(4) All contributions required to be made under the terms of
any ERISA Plan have been timely made. Neither any Pension Plan nor
any single-employer plan of an ERISA Affiliate has an "accumulated
funding deficiency" (whether or not waived) within the meaning of
Section 412 of the Code or Section 302 of ERISA. Neither the Company
nor any of its Subsidiaries has provided, or is required to provide,
security to any Pension Plan or to any single-employer plan of an
ERISA Affiliate pursuant to Section 401(a)(29) of the Code.
(5) Under each Pension Plan which is a single-employer plan,
as of the last day of the most recent plan year, the actuarially
determined present value of all "benefit liabilities", within the
meaning of Section 4001(a)(16) of ERISA (as determined on the basis
of the actuarial assumptions contained in the plan's most recent
actuarial valuation) did not exceed the then current value of the
assets of such plan, and there has been no adverse change in the
financial condition of such plan since the last day of the most
recent plan year.
(6) Neither the Company nor any of its Subsidiaries has any
obligations for retiree health and life benefits under any plan.
There are no restrictions on the rights of the Company or any of its
Subsidiaries to amend or terminate any such plan without incurring
any liability thereunder.
(7) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (A)
result in any payment (including, without limitation, severance,
unemployment compensation, golden parachute or otherwise) becoming
due to any director or any employee of the Company or any of its
Subsidiaries under any Compensation Plan or otherwise from the
Company or any of its Subsidiaries, (B) increase any benefits
otherwise payable under any Compensation Plan or (C) result in any
acceleration of the time of payment or vesting of any such benefit.
(s) No Knowledge. As of the date hereof, the Company knows of no
reason why the regulatory approvals referred to in Section 7.01(b) should
not be obtained without the imposition of any condition of the type
referred to in the proviso following such Section 7.01(b).
(t) Labor Relations. Each of the Company and its Subsidiaries is in
compliance with all currently applicable laws respecting employment and
employment practices, terms and conditions of employment and wages and
hours, including, without limitation, the Immigration Reform and Control
Act, the Worker Adjustment and Retraining Notification Act, any such laws
respecting employment discrimination, disability rights or benefits, equal
opportunity, plant closure issues, affirmative action, workers'
compensation, employee benefits, severance payments, labor relations,
employee leave issues, wage and hour standards, occupational safety and
health requirements and unemployment insurance and related matters. None
of the Company or its Subsidiaries is engaged in any unfair labor practice
and there is no unfair labor practice complaint pending or, to the
knowledge of the Company, threatened against any of the Company or its
Subsidiaries before the National Labor Relations Board. Neither the
Company nor any of its Subsidiaries is a party to, or is bound by, any
collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is the Company
or any of its Subsidiaries the subject of a proceeding asserting that the
Company or any such Subsidiary has committed an unfair labor practice
(within the meaning of the National Labor Relations Act) or seeking to
compel it or such Subsidiary to bargain with any labor organization as to
wages and conditions of employment, nor is there any strike or other labor
dispute involving the Company or any of its Subsidiaries, pending or, to
the best of its knowledge, threatened, nor is it aware of any activity
involving the Company's or any of its Subsidiaries' employees seeking to
certify a collective bargaining unit or engaging in any other organization
activity.
(u) Insurance. The Company and its Subsidiaries are insured with
reputable insurers against such risks and in such amounts as the
management of the Company reasonably has determined to be prudent in
accordance with industry practices.
(v) Taxes. (1) The Company and its Subsidiaries have filed
completely and correctly in all material respects all Tax Returns which
are required by all applicable laws to be filed by them, and have paid, or
made adequate provision for the payment of, all Taxes which have or may
become due and payable pursuant to said Tax Returns and all other Taxes,
governmental charges and assessments received to date other than those
Taxes being contested in good faith for which adequate provision has been
made on the most recent consolidated balance sheet of the Company set
forth in the Financial Statements. The Tax Returns of the Company and its
Subsidiaries have been prepared in accordance with all applicable laws and
generally accepted principles applicable to taxation consistently applied;
(2) all Taxes which the Company and its Subsidiaries are required by law
to withhold and collect have been duly withheld and collected, and have
been paid over, in a timely manner, to the proper taxing authorities to
the extent due and payable; (3) the Company and its Subsidiaries have not
executed any waiver to extend, or otherwise taken or failed to take any
action that would have the effect of extending, the applicable statute of
limitations in respect of any Tax liabilities of the Company or any of its
Subsidiaries for the fiscal years prior to and including the most recent
fiscal year; (4) neither the Company nor any of its Subsidiaries is a
"consenting corporation" within the meaning of Section 341(f) of the Code;
(5) the Company has at all times been taxable as a Subchapter C
corporation under the Code; (6) the Company has never been a member of any
consolidated group (other than with the Company and its Subsidiaries) for
Tax purposes; (7) the Company is not a party to any tax sharing agreement
or arrangement, other than with its Subsidiaries; (8) no liens for Taxes
exist with respect to any of the assets or properties of the Company,
except for statutory liens for Taxes not yet due or payable or that are
being contested in good faith; (9) all of the U.S. federal income Tax
Returns filed by or on behalf of each of the Company and its Subsidiaries
have been examined by and settled with the IRS, or the statute of
limitations with respect to the relevant Tax liability expired, for all
taxable periods through and including the period ending on the date on
which the Effective Time occurs; (10) all Taxes due with respect to any
completed and settled audit, examination or deficiency Litigation with any
taxing authority have been paid in full; (11) there is no audit,
examination, deficiency, or refund Litigation pending with respect to any
Taxes and during the past three years no taxing authority has given
written notice of the commencement of any audit, examination or deficiency
Litigation, with respect to any Taxes; (12) neither the Company nor any of
its Subsidiaries is bound by any currently effective private ruling,
closing agreement or similar agreement with any taxing authority; (13)
except with respect to like-kind exchanges pursuant to Section 1031 of the
Code, the Company will not be required to include in a taxable period
ending after the Effective Time, any taxable income attributable to income
that economically accrued in a prior taxable period as a result of Section
481 of the Code, the installment method of accounting or any comparable
provision of state or local Tax law; (14) (A) no property of the Company
or its Subsidiaries is "tax exempt property" within the meaning of Section
168(h) of the Code, (B) no assets of the Company or its Subsidiaries is
subject to a lease under Section 7701(h) of the Code, and (C) neither the
Company nor its Subsidiaries is a party to any lease made pursuant to
Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in
effect prior to the date of enactment of the Tax Equity and Fiscal
Responsibility Act of 1982; and (15) immediately following the Merger, the
Company will not have any income or gain that has been deferred under
Treasury Regulation Section 1.1502-13, or any material excess loss account
in a Subsidiary under Treasury Regulation Section 1.1502-19.
(w) Derivatives. All exchange-traded or over-the-counter swap,
forward, future, option, cap, floor or collar financial contract or any
other similar arrangement, whether entered into for the Company's account,
or for the account of one or more of the Company's Subsidiaries or their
customers, were entered into (1) in accordance with prudent business
practices and all applicable laws, rules, regulations and regulatory
policies and (2) with counterparties believed to be financially
responsible at the time; and each of them constitutes the valid and
legally binding obligation of the Company or any of its Subsidiaries,
enforceable in accordance with its terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating to
or affecting creditors' rights or by general equity principles), and are
in full force and effect. Neither the Company nor any of its Subsidiaries,
nor to the Company's knowledge any other party thereto, is in breach of
any of its obligations under any such agreement or arrangement. The SEC
Documents disclose the value of such agreements and arrangements on a
xxxx-to-market basis in accordance with generally accepted accounting
principles and, since June 30, 1997, there has not been a material change
in such value.
(x) Accounting Controls. Each of the Company and its Subsidiaries
has devised and maintained systems of internal accounting controls
sufficient to provide reasonable assurances, in the judgment of the Board
of Directors, that (1) all material transactions are executed in
accordance with management's general or specific authorization; (2) all
material transactions are recorded as necessary to permit the preparation
of financial statements in conformity with generally accepted accounting
principles consistently applied with respect to broker-dealers or any
other criteria applicable to such statements, (3) access to the material
property and assets of the Company and its Subsidiaries is permitted only
in accordance with management's general or specific authorization; and (4)
the recorded accountability for items is compared with the actual levels
at reasonable intervals and appropriate action is taken with respect to
any differences.
(y) Proprietary Rights. The Company and its Subsidiaries have the
right to use the names, service-marks, trademarks and other intellectual
property material to the conduct of their business, and all of these have
been Previously Disclosed; and in the case of such names, service-marks
and trademarks, in each state of the United States, such right of use is
free and clear of any Liens, and, to the knowledge of the Company, no
other person has the right to use such names, service-marks or trademarks
in any such state.
(z) Investment Advisory Activities.
(1) Certain of the Company's Subsidiaries provide investment
management, investment advisory, sub-advisory, administration,
distribution or certain other services to the Investment Companies,
each of which has been Previously Disclosed. Each of the Investment
Companies (or the trust of which it is a series) is duly organized
and existing in good standing under the laws of the jurisdiction
under which it is organized. Each of the Investment Companies (or
the trust or corporation of which it is a series) that is registered
or required to be registered under the Investment Company Act
("Registered Funds") is governed by a board of trustees or directors
(each a "Fund Board" and, collectively, the "Fund Boards")
consisting of at least 50% of trustees or directors who are not
"interested persons") (as defined in the Investment Company Act) of
the Registered Funds or the Company. The Fund Boards operate in all
material respects in conformity with the requirements and
restrictions of Sections 10 and 16 of the Investment Company Act, to
the extent applicable.
(2) Each of the Investment Companies is in compliance with all
applicable foreign, federal and state laws, rules and regulations of
the SEC, the IRS, and any Self-Regulatory Organization having
jurisdiction over such Investment Company. The Company has made
available to the Acquiror true and complete copies of all the
Constitutive Documents and related advisory agreements of all of the
Investment Companies managed or advised by the Company or any of its
Subsidiaries.
(3) Except for Xxxxx Xxxxxxx Inc., Piper Trust Company and
Piper Capital Management Incorporated, none of the Company or its
Subsidiaries is or has been during the past five years an
"investment adviser" within the meaning of the Investment Advisers
Act, required to be registered, licensed or qualified as an
investment advisor under the Investment Advisers Act or subject to
any liability or disability by reason of any failure to be so
registered, licensed or qualified.
(4) Each Investment Company has been operated in compliance
with its respective objectives, policies and restrictions, including
those set forth in the applicable prospectus and registration
statement, if any, for that Investment Company or governing
instruments for a Client. The Company and its Subsidiaries have
operated their investment accounts in accordance with the investment
objectives and guidelines in effect for such investment accounts.
(5) Each Registered Fund has duly adopted procedures pursuant
to Rules 17a-7, 17e-1 and 10f-3 under the Investment Company Act, to
the extent applicable.
(6) Neither the Company, nor any "affiliated person" (as
defined in the Investment Company Act) thereof, is ineligible
pursuant to Section 9 of the Investment Company Act to serve as an
investment advisor (or in any other capacity contemplated by the
Investment Company Act) to an Investment Company; neither the
Company, nor any "associated person" (as defined in the Investment
Advisors Act) thereof, is ineligible pursuant to Section 203 of the
Investment Advisors Act to serve as an investment advisor or as an
associated person to a registered investment advisor.
5.04 Representations and Warranties of the Acquiror. Except as
Previously Disclosed in a paragraph of its Disclosure Schedule corresponding to
the relevant paragraph below, the Acquiror hereby represents and warrants to the
Company as follows:
(a) Organization, Standing and Authority. The Acquiror and the
Merger Subsidiary each has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware. The
Acquiror and the Merger Subsidiary each is duly qualified to do business
and is in good standing in the States of the United States and foreign
jurisdictions where its ownership or leasing of property or the conduct of
its business requires it to be so qualified. Each of the Acquiror and its
Subsidiaries has in effect all federal, state, local and foreign
governmental authorizations necessary for it to own or lease its
properties and assets and to carry on its business as it is now conducted.
(b) Corporate Authority. The Acquiror and the Merger Subsidiary each
has the requisite corporate power and authority, and has taken all
corporate action necessary, in order (1) to authorize the execution and
delivery of, and performance of its obligations under, this Agreement and
(2) to adopt the plan of merger contained in this Agreement and, in
accordance therewith, to consummate the Merger. This Agreement is the
valid and binding agreement of each of them enforceable in accordance with
its terms.
(c) No Defaults. Subject to the required approval of the Federal
Reserve System, and any required filings under federal and state
securities' and insurance laws, and the approvals of the NYSE and the
other securities exchanges referred to in Section 5.03(f), of the Merger
and the other transactions contemplated hereby, the execution, delivery
and performance of this Agreement, and the consummation of the
transactions contemplated hereby by it, does not and will not (1)
constitute a breach or violation of, or a default under, any law, rule or
regulation or any judgment, decree, order, governmental permit or license,
or any Contract of the Acquiror or of any of its subsidiaries or to which
the Acquiror or any of its Subsidiaries or properties is subject or bound,
(2) constitute a breach or violation of, or a default under, the
Constitutive Documents of the Acquiror or any of its Subsidiaries, or (3)
require any consent or approval under any such law, rule, regulation,
judgment, decree, order, governmental permit or license, or the consent or
approval of any other party to any such agreement, indenture or instrument
other than such consent or approval.
(d) No Knowledge. As of the date hereof, the Acquiror knows of no
reason why the regulatory approvals and consents referred to in Section
7.01(b) should not be obtained without the imposition of any condition of
the type referred to in the proviso following such Section 7.01(b).
(e) Investment Companies. Neither the Acquiror, nor any "affiliated
person" (as defined in the Investment Company Act) thereof, is ineligible
pursuant to Section 9 of the Investment Company Act to serve as an
investment advisor (or in any other capacity contemplated by the
Investment Company Act to a Registered Fund; neither the Acquiror, nor any
"associated person" (as defined in the Investment Advisors Act) thereof,
is ineligible pursuant to Section 203 of the Investment Advisors Act to
serve as an investment advisor or as an associated person to a registered
investment advisor.
(f) Funds. At the Effective Time, the Acquiror will have the funds
necessary to consummate the Merger and pay the Merger Consideration in
accordance with the terms of this Agreement.
ARTICLE IV
Covenants
6.01 Reasonable Best Efforts. (a) Subject to the terms and
conditions of this Agreement, each of the Company and the Acquiror agrees to use
its reasonable best efforts in good faith to take, or cause to be taken
(including causing any of its Subsidiaries to take), all actions, and to do, or
cause to be done, all things necessary, proper or desirable, or advisable under
applicable laws, so as to permit consummation of the Merger as promptly as
reasonably practicable and otherwise to enable consummation of the transactions
contemplated hereby and shall cooperate fully with the other party hereto to
that end.
(b) Without limiting the generality of Section 6.01(a), the Company
agrees to use its reasonable best efforts to obtain (1) any consents of Clients
(including in the case of Registered Funds, stockholders of such Registered
Funds) necessary to effect the assignment of any Advisory Agreement to the
Surviving Corporation upon consummation of the Merger and, (2) the consent or
approval of all persons party to a Contract with the Company, to the extent such
consent or approval is required in order to consummate the Merger or for the
Surviving Corporation to receive the benefits thereof.
6.02 Stockholder Approvals. The Company agrees to take, in
accordance with applicable law, the Company's Constitutive Documents, all action
necessary to convene an appropriate meeting of stockholders of the Company to
consider and vote upon the approval and adoption of this Agreement and any other
matters required to be approved by the Company's stockholders for consummation
of the Merger (including any adjournment or postponement, the "Meeting") as
promptly as practicable. The Company's Board of Directors shall recommend such
approval, and the Company shall take all lawful action to solicit such approval
by its stockholders; provided, however, the Company's Board of Directors may
fail to make the recommendation, or to seek to obtain the shareholder approval,
or withdraw, modify or change any such recommendation, if such Board of
Directors determines in good faith, after considering the advice of outside
counsel to such Board, that such action is required in order to discharge
properly the directors' fiduciary duties under the GCL.
6.03 Proxy Statement. The Acquiror and the Company will cooperate in
the preparation of a proxy statement and other proxy solicitation materials of
the Company (the "Proxy Statement"). The Company agrees to file the Proxy
Statement in preliminary form with the SEC as promptly as reasonably
practicable. Each of the Company and the Acquiror agrees, as to itself and its
Subsidiaries, that none of the information supplied or to be supplied by it for
inclusion or incorporation by reference in the Proxy Statement and any amendment
or supplement thereto will, at the date of mailing to shareholders and at the
time of the Meeting, contain any untrue statement which, at the time and in the
light of the circumstances under which such statement is made, will be false or
misleading with respect to any material fact, or will omit to state any material
fact necessary in order to make the statements therein not false or misleading
or necessary to correct any statement in any earlier statement in the Proxy
Statement or any amendment or supplement thereto. Each of the Company and the
Acquiror further agrees that if it shall become aware prior to the Effective
Time of any information furnished by it that would cause any of the statements
in the Proxy Statement to be false or misleading with respect to any material
fact, or to omit to state any material fact necessary to make the statements
therein not false or misleading, it shall promptly inform the other party
thereof and to take the necessary steps to correct the Proxy Statement.
6.04 Press Releases. Each of the Company and the Acquiror agrees
that it will not, without the prior approval of the other party, issue any press
release or written statement for general circulation relating to the
transactions contemplated hereby, except as otherwise required by applicable law
or regulation or the rules of any applicable Self-Regulatory Organization.
6.05 Access; Information. (a) The Company agrees that upon
reasonable notice and subject to applicable laws relating to the exchange of
information, it shall afford the Acquiror and its officers, employees, counsel,
accountants and other authorized representatives, such access during normal
business hours throughout the period prior to the Effective Time to the books,
records (including, without limitation, tax returns and work papers of
independent auditors), properties, personnel and to such other information as
the Acquiror may reasonably request and, during such period, it shall furnish
promptly to such other party (1) a copy of each material report, schedule and
other document filed by it pursuant to the requirements of federal or state
securities or banking laws, and (2) all other information concerning the
business, properties and personnel of it as the other may reasonably request.
(b) The Acquiror agrees that any information obtained pursuant to
this Section 6.05 will be subject to the terms of the letter agreement, dated
December 8, 1997, between the Acquiror and the Company. No investigation by the
Acquiror of the business and affairs of the Company and its Subsidiaries shall
affect or be deemed to modify or waive any representation, warranty, covenant or
agreement in this Agreement or the conditions to consummation contained in
Article VII.
6.06 Acquisition Proposals. (a) The Company agrees that it shall
not, and shall use its best efforts to cause its officers, directors, agents,
advisors and Affiliates not to, solicit or encourage inquiries or proposals with
respect to, or engage in any negotiations concerning, or provide any
confidential information to, or have any discussions with, any person relating
to, any tender or exchange offer, proposal for a merger, consolidation or other
business combination involving the Company or any of its Subsidiaries or any
proposal or offer to acquire in any manner a substantial equity interest in, or
a substantial portion of the assets or operations of, the Company or any of its
Subsidiaries, other than the transactions contemplated by this Agreement (any of
the foregoing, an "Acquisition Proposal"); provided that, if the Company is not
otherwise in violation of this Section 6.06, the Company's Board of Directors
may provide (or authorize the provision of) information to, and may engage in
(or authorize) such negotiations or discussions with, a person, directly or
through representatives, if (a) such Board of Directors, after having consulted
with and considered the advice of outside counsel to such Board, has determined
in good faith that providing such information or engaging in such negotiations
or discussions is required in order to discharge properly the directors'
fiduciary duties in accordance with the GCL and (b) the Company has received
from such person a confidentiality agreement in customary form. The Company also
agrees immediately to cease and cause to be terminated any activities,
discussions or negotiations conducted prior to the date of this Agreement with
any parties other than the Acquiror, with respect to any of the foregoing. The
Company shall promptly (within 24 hours) advise the Acquiror following the
receipt by it of any Acquisition Proposal and the substance thereof (including
the identity of the person making such Acquisition Proposal), and advise the
Acquiror of any developments with respect to such Acquisition Proposal promptly
upon the occurrence thereof.
(b) Nothing contained in this Section 6.06 or any other provision of
this Agreement shall prohibit the Company or the Company's Board of Directors
from notifying any third party that contacts the Company on an unsolicited basis
after the date hereof concerning an Acquisition Proposal of the Company's
obligations under this Section 6.06.
6.07 No Rights Triggered. Except as Previously Disclosed, the
Company shall take all reasonable steps necessary, if any, to ensure that the
entering into of this Agreement and the consummation of the transactions
contemplated hereby and any other action or combination of actions, or any other
transactions contemplated hereby, do not and will not result in the grant of any
Rights to any person (a) under the Constitutive Documents of the Company or any
of its Subsidiaries or (b) under any Contract to which the Company or any of its
Subsidiaries is a party.
6.08 Regulatory Applications. (a) The Acquiror, its Subsidiaries and
the Company shall cooperate and use their respective reasonable best efforts to
prepare all documentation, to effect all filings and to obtain all permits,
consents, approvals and authorizations of all third parties and Governmental
Authorities necessary to consummate the transactions contemplated by this
Agreement as promptly as reasonably practicable. Each of the Acquiror and the
Company shall have the right to review in advance, and to the extent practicable
each will consult with the other, in each case subject to applicable laws
relating to the exchange of information, with respect to, all material written
information submitted to any third party or any Governmental Authority in
connection with the transactions contemplated by this Agreement. In exercising
the foregoing right, each of the Acquiror and the Company agrees to act
reasonably and as promptly as practicable. Each of the Acquiror and the Company
agrees that it will consult with the other party hereto with respect to the
obtaining of all material permits, consents, approvals and authorizations of all
third parties and Governmental Authorities necessary or advisable to consummate
the transactions contemplated by this Agreement and each party will keep the
other party apprised of the status of material matters relating to completion of
the transactions contemplated hereby.
(b) Each of the Acquiror and the Company agrees, upon request, to
furnish the other party with all information concerning itself, its
Subsidiaries, directors, officers and stockholders and such other matters as may
be reasonably necessary or advisable in connection with any filing, notice or
application made by or on behalf of such other party or any of its Subsidiaries
to any third party or Governmental Authority.
6.09 Certain Employee Benefits. (a) As soon as reasonably
practicable after the Effective Time, the Acquiror shall cause accruals under
the tax-qualified retirement plans and nonqualified retirement plans maintained
by the Company and its Subsidiaries to cease. At the time such accruals cease,
all affected participants' benefits under the tax-qualified retirement plans
shall become fully vested, a partial year employer contribution shall be made
under the Company ESOP for such partial year on a basis consistent with recent
past practice for full years, and an employer matching contribution shall be
made to the Company's 401(k) Plan for such partial year on the same basis (and
the Company may amend the Company ESOP to the extent necessary to enable such
contribution). As promptly as reasonably practicable after the Effective Time,
the Acquiror will cause the Company ESOP and the Company's 401(k) plan to be
merged with the Acquiror's 401(k) plan; but prior to such merger, all
participants (and beneficiaries of deceased participants) under the Company ESOP
shall be provided an opportunity to receive immediate lump sum distributions of
their entire balances which they may keep or rollover/transfer to personal IRAs
or a tax-qualified defined contribution retirement plan of the Acquiror (and the
Company may amend the Company ESOP to the extent necessary to enable such
distribution). Coincident with the aforesaid cessation of accruals, the Acquiror
shall cause employees covered by those discontinued plans to become covered by
the tax-qualified retirement plans and the nonqualified defined benefit excess
plan maintained by the Acquiror for the benefit of its employees. The Acquiror
shall cause each such plan to recognize service with the Company and its
Subsidiaries before the Effective Time for purposes of determining eligibility
to participate in the plans and vesting in accrued benefits under the plans as
if service with the Company and its Subsidiaries before the Effective Time were
service with the Acquiror. The Acquiror shall not be obligated to recognize such
service for the purpose of determining the accrual of benefits under such plans.
The Acquiror shall establish qualified plans, nonqualified plans or cash
compensation arrangements (or a combination thereof) to provide to certain
selected employees a benefit approximately equal to the amount, if any, of (1)
the estimated amount of employer-provided benefits that these certain selected
employees will receive under the Acquiror's replacement plans, minus (2) the
estimated amount of employer-provided benefits that these certain selected
employees might have received under the discontinued plans of the Company and
its Subsidiaries if those plans had continued in effect.
(b) From time to time after the Effective Time, the Acquiror shall
discontinue all welfare benefit plans maintained by the Company and its
Subsidiaries for the benefit of employees of the Company and its Subsidiaries
and replace them with welfare benefit plans of the Acquiror (excluding, however,
any change in control severance pay plans). The Acquiror shall cause any such
plan of the Acquiror to recognize service with the Company or its Subsidiaries
before the Effective Time for purposes of determining eligibility to participate
in the plans and vesting in benefits under the plans as if service with the
Company or its Subsidiaries before the Effective Time were service with the
Acquiror. The Acquiror shall recognize such service for the purpose of
determining vacation entitlements and for the purpose of determining the amount
of severance pay. Such service shall be recognized for determining entitlement
to retiree medical benefits but shall not be recognized for determining an
employee's cost for retiree medical benefits.
(c) The Acquiror will, and will cause the Surviving Corporation to honor,
in accordance with their terms and accrued as of the Effective Time, all
employee (or former employee) benefit obligations accrued as of the Effective
Time and, to the extent Previously Disclosed, all employee severance obligations
under plans and policies in existence on the date of this Agreement.
6.10 Notification of Certain Matters. (a) Each of the Company and
the Acquiror shall give prompt notice to the other of any fact, event or
circumstance known to it that is reasonably likely, individually or taken
together with all other facts, events and circumstances known to it, to result
in a material breach of any of its representations, warranties, covenants or
agreements contained herein.
(b) The Company shall promptly notify the Acquiror, and the Acquiror
shall promptly notify the Company, of:
(1) Any notice or other communication from any person alleging that
the consent of such person is or may be required as a condition to the
Merger;
(2) Any notice or other written communications from any Client (A)
terminating or threatening to terminate any material Contract with the
Company relating to the rendering of services to such Client or (B)
relating to any material dispute with such Client; or
(3) Any notice or other communication from any Governmental
Authority or Self-Regulatory Organization in connection with the
transactions contemplated by this Agreement.
6.11 Indemnification; Directors' and Officers' Insurance. (a) From
and after the Effective Time, the Acquiror agrees that it will indemnify and
hold harmless each present and former director and officer of the Company or any
of its Subsidiaries, determined as of the Effective Time (the "Indemnified
Parties"), against any and all costs or expenses (including reasonable
attorneys' fees), judgments, fines, losses, claims, damages or liabilities
(collectively, "Costs") incurred in connection with any claim, action, suit,
proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of matters existing or occurring at or prior to the
Effective Time or arising out of any conduct of Acquiror or any of its
Affiliates that imposes, results in or gives rise to an "unfair burden" on any
Registered Funds for purposes of Section 15(f) of the Investment Company Act,
whether asserted or claimed prior to, at or after the Effective Time (including
with respect to the transactions contemplated by this Agreement), to the fullest
extent that the Company or such Subsidiary would have been permitted under the
law of its jurisdiction of incorporation and its Constitutive Documents in
effect on the date hereof to indemnify such person (and the Acquiror shall also
advance expenses as incurred to the fullest extent permitted under applicable
law provided the person to whom expenses are advanced provides and undertaking
to repay such advances if it is ultimately determined that such person is not
entitled to indemnification); provided that any determination required to be
made with respect to whether an officer's or director's conduct complies with
the standards set forth under Delaware law and the Company's Constitutive
Documents shall be made by independent counsel selected by the Surviving
Corporation and reasonably acceptable to such officer or director.
(b) Any Indemnified Party wishing to claim indemnification under
Section 6.11(a) upon learning of any such claim, action, suit, proceeding or
investigation, shall promptly notify the Acquiror thereof, but the failure to so
notify shall not relieve the Acquiror of any liability it may have to such
Indemnified Party if such failure does not materially prejudice the indemnifying
party. In the event of any such claim, action, suit, proceeding or investigation
(whether arising before or after the Effective Time), (1) the Acquiror or the
Surviving Corporation shall have the right to assume the defense thereof and the
Acquiror shall not be liable to such Indemnified Parties for any legal expenses
of other counsel or any other expenses subsequently incurred by such Indemnified
Parties in connection with the defense thereof, except that if the Acquiror or
the Surviving Corporation elects not to assume such defense or counsel for the
Indemnified Parties advises that there are issues which raise conflicts of
interest between the Acquiror or the Surviving Corporation and the Indemnified
Parties, the Indemnified Parties may retain counsel satisfactory to them, and
the Acquiror or the Surviving Corporation shall pay all reasonable fees and
expenses of such counsel for the Indemnified Parties promptly as statements
therefor are received; provided, however, that the Acquiror shall be obligated
pursuant to this Section 6.11 to pay for only one firm of counsel for all
Indemnified Parties in any jurisdiction (2) the Indemnified Parties will
cooperate in the defense of any such matter and (3) the Acquiror shall not be
liable for any settlement effected without its prior written consent; and
provided further that the Acquiror shall not have any obligation hereunder to
any Indemnified Party when and if a court of competent jurisdiction shall
ultimately determine, and such determination shall have become final, that the
indemnification of such Indemnified Party in the manner contemplated hereby is
prohibited by applicable law.
(c) For a period of three years from the Effective Time, the
Acquiror shall use its reasonable best efforts to provide that portion of
director's and officer's liability insurance that serves to reimburse the
present and former officers and directors of the Company or any of the Company's
Subsidiaries (determined as of the Effective Time) (as opposed to the Company)
with respect to claims against such directors and officers arising from facts or
events which occurred before the Effective Time, which insurance shall contain
at least the same coverage and amounts, and contain terms and conditions no less
advantageous, as that coverage currently provided by the Company; provided;
however, that in no event shall the Acquiror be required to expend more than 200
percent of the current amount expended by the Acquiror (such product, the
"Insurance Amount") to maintain or procure such directors and officers insurance
coverage; provided, further, that if the Acquiror is unable to maintain or
obtain the insurance called for by this Section 6.11, the Acquiror shall use its
reasonable best efforts to obtain as much comparable insurance as is available
for the Insurance Amount; provided, further, that officers and directors of the
Company or any Company Subsidiary may be required to make application and
provide customary representations and warranties to the Acquiror's insurance
carrier for the purpose of obtaining such insurance; and provided, further, that
such coverage will have a single aggregate for such three-year period in an
amount not less than the annual aggregate of such coverage currently provided by
the Company.
(d) If the Acquiror or any of its successors or assigns shall
consolidate with or merge into any other entity and shall not be the continuing
or surviving entity, then and in each case, proper provision shall be made so
that successors and assigns of Acquiror shall assume the obligations set forth
in this Section 6.11.
(e) The provisions of this Section 6.11 are intended to be for the
benefit of, and enforceable in accordance with their terms by, Indemnified
Parties.
6.12 Section 15 of the Investment Company Act. (a) The Company will
use its reasonable best efforts to obtain as promptly as practicable, (i) the
approval of the stockholders of each of the Registered Funds, pursuant to the
provisions of Section 15 of the Investment Company Act applicable thereto, of a
new investment company advisory agreement for such Registered Funds no less
favorable to the Company or its Subsidiaries to that in effect immediately prior
to the Closing, and (ii) a consent to assignment from each private accountholder
to whom it is providing investment advisory services.
(b) Acquiror shall use its reasonable best efforts to assure, prior
to the Closing Date, the satisfaction of the conditions set forth in Section
15(f) of the Investment Company Act with respect to each Registered Fund.
(c) Acquiror agrees to use its reasonable best efforts to assure
compliance with the conditions of Section 15(f) of the Investment Company Act
with respect to the Registered Funds.
ARTICLE VII
Conditions to Consummation of the Merger
7.01 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each of the Acquiror, the Merger Subsidiary and the
Company to consummate the Merger is subject to the fulfillment or written waiver
by the Acquiror and the Company prior to the Closing of each of the following
conditions:
(a) Stockholder Approval. This Agreement shall have been duly
adopted by the requisite vote of the holders of outstanding shares of
Company Common Stock entitled to vote thereon.
(b) Governmental and Regulatory Consents. All approvals and
authorizations of, filings and registrations with, and notifications to,
all Governmental Authorities required for the consummation of the Merger
and for the prevention of any termination of any material right,
privilege, license or agreement of either the Acquiror, its Subsidiaries
or the Company and its Subsidiaries shall have been obtained or made and
shall be in full force and effect and all waiting periods required by law
shall have expired; provided, however, that none of the preceding shall be
deemed obtained or made if it shall be subject to any condition or
restriction the effect of which would have been such that the Acquiror
would not reasonably have entered into this Agreement had such condition
or restriction been known as of the date hereof.
(c) Third Party Consents. All consents or approvals of all persons,
other than Governmental Authorities, required for or in connection with
the execution, delivery and performance of this Agreement and the
consummation of the Merger shall have been obtained and shall be in full
force and effect, unless the failure to obtain any such consent or
approval is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on the Surviving Corporation.
(d) No Injunction. No Governmental Authority of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered
any statute, rule, regulation, judgment, decree, injunction or other order
(whether temporary, preliminary or permanent) which is in effect and
prohibits consummation of the transactions contemplated by this Agreement.
7.02 Conditions to Obligation of the Company. The obligation of the
Company to consummate the Merger is also subject to the fulfillment or written
waiver by the Company prior to the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Acquiror set forth in this Agreement shall be true and
correct as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date (except that representations and
warranties that by their terms speak as of the date of this Agreement or
some other date shall be true and correct only as of such date); provided,
however, that for purposes of determining the satisfaction of the
condition contained in this Section 7.02(a), such representations and
warranties shall be deemed to be true and correct as of the Closing Date
unless the failure or failures of such representations and warranties to
be so true and correct (excluding the effect of any qualification set
forth in Section 5.02 or in Section 5.03 relating to "Material" or
"Material Adverse Effect") are reasonably likely to constitute or give
rise to, individually or in the aggregate, a Material Adverse Effect on
the Acquiror and the Company shall have received a certificate, dated the
Closing Date, signed on behalf of the Acquiror by a senior executive
officer to such effect.
(b) Performance of Obligations of the Acquiror. The Acquiror and the
Merger Subsidiary shall have performed in all material respects all
obligations required to be performed by them under this Agreement at or
prior to the Closing Date, and the Company shall have received a
certificate, dated the Closing Date, signed on behalf of the Acquiror by a
senior executive officer to such effect.
7.03 Conditions to Obligation of the Acquiror. The obligation of
each of the Acquiror and the Merger Subsidiary to consummate the Merger is also
subject to the fulfillment or written waiver by the Acquiror prior to the
Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement shall be true and
correct as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date (except that representations and
warranties that by their terms speak as of the date of this Agreement or
some other date shall be true and correct only as of such date); provided,
however, that for purposes of determining the satisfaction of the
condition contained in this Section 7.03(a), such representations and
warranties shall be deemed to be true and correct as of the Closing Date
unless the failure or failures of such representations and warranties to
be so true and correct (excluding the effect of any qualification set
forth in Section 5.02 or in Section 5.03 relating to "Material" or
"Material Adverse Effect") are reasonably likely to constitute or give
rise to, individually or in the aggregate, a Material Adverse Effect on
the Company, and the Acquiror shall have received a certificate, dated the
Closing Date, signed on behalf of the Company by the Chief Executive
Officer and the Chief Financial Officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall
have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, and
the Acquiror shall have received a certificate, dated the Closing Date,
signed on behalf of the Company by the Chief Executive Officer and the
Chief Financial Officer of the Company to such effect.
ARTICLE VIII
Termination
8.01 Termination. This Agreement may be terminated, and the Merger
may be abandoned:
(a) Mutual Consent. At any time prior to the Effective Time,
by the mutual consent of the Acquiror and the Company.
(b) Breach. At any time prior to the Effective Time, by the Acquiror
or the Company in the event of either: (1) a breach by the other party of
any representation or warranty contained herein, which breach cannot be or
has not been cured within 30 days after the giving of written notice to
the breaching party of such breach; or (2) a breach by the other party of
any of the covenants or agreements contained herein, which breach cannot
be or has not been cured within 30 days after the giving of written notice
to the breaching party of such breach and which breach would be reasonably
likely, individually or in the aggregate, to have a Material Adverse
Effect on the breaching party or the Surviving Corporation.
(c) Delay. At any time prior to the Effective Time, by the Acquiror
or the Company in the event that the Effective Time has failed to occur on
or before August 31, 1998, except to the extent that such failure arises
out of or results from the knowing action or inaction of the party seeking
to terminate pursuant to this Section 8.01(c).
(d) No Approval. By the Company or the Acquiror, if (1) the approval
of any Governmental Authority required for consummation of the Merger and
the other transactions contemplated by this Agreement shall have been
denied by final nonappealable action of such Governmental Authority, or
such Governmental Authority shall have requested the permanent withdrawal
of any application therefor, or any such approval shall be made subject to
any condition or restriction described in the proviso to Section 7.01(b)
or (2) the approval of the Company's stockholders required by Section
7.01(a) is not obtained at the Meeting.
(e) Failure to Recommend, Etc. By the Acquiror, if at any time prior
to the Meeting, the Company's Board of Directors shall have failed to make
its recommendation referred to in Section 6.02, withdrawn such
recommendation or modified or changed such recommendation in a manner
adverse to the interests of the Acquiror.
(f) Alternative Transaction. By the Company, if the Company shall
immediately thereafter enter into a definitive agreement with a third
party providing for an Acquisition Transaction on terms determined, in
good faith, by the Board of Directors of the Company, after consultation
with and considering the advice of outside counsel and financial advisers
to such Board, to be such that termination of this Agreement and entry
into such third-party agreement is required in order to discharge properly
the directors' fiduciary duties in accordance with the GCL.
8.02 Effect of Termination and Abandonment. In the event of
termination of this Agreement and the abandonment of the Merger pursuant to this
Article VIII, no party to this Agreement shall have any liability or further
obligation to any other party hereunder except (a) as set forth in Sections 8.03
and 9.01 and (b) that termination will not relieve a breaching party from
liability for any willful breach of this Agreement.
8.03 Termination Fee. (a) The Company agrees to pay to the
Acquiror a cash fee (the "Fee") of $19,500,000:
(1) If this Agreement (A) is terminated by the Acquiror pursuant to
Section 8.01(e) or by the Company pursuant to Section 8.01(f) and (B)
prior thereto or within eighteen months after such termination, either
(x) the Company shall have entered into an agreement to engage in
an Acquisition Transaction or an Acquisition Transaction shall
have occurred, or
(y) the Board of Directors of the Company shall have authorized or
approved an Acquisition Transaction or shall have publicly
announced an intention to authorize or approve an Acquisition
Transaction or shall have recommended that the stockholders of
the Company approve or accept an Acquisition Transaction (each
of the events set forth in Clause (x) or (y), a "Fee Trigger
Event").
(2) if this Agreement (A) is terminated by the Acquiror pursuant to
Section 8.01(b) (other than a termination solely because of a breach
constituting a Material Adverse Effect on the Company as a consequence of
(I) the effects of changes in securities markets or (ii) the effect on the
Company of the announcement of this Agreement and the transactions
contemplated hereby or (iii) the effects of changes in the financial
services markets in general) and (B) prior thereto or within twelve months
after such termination, there shall occur a Fee Trigger Event, provided
that the subject Acquisition Transaction shall represent consideration
having an aggregate value (reasonably determined), directly or indirectly,
to the Company or its stockholders in excess of the $37.25 per share
(after adjustment for changes in the capitalization of the Company after
the date hereof).
(b) The Company shall notify the Acquiror promptly in writing of its
knowledge of the occurrence of a Fee Trigger Event; provided, however, that the
giving of such notice shall not be a condition to the right of the Acquiror to
the Fee.
(c) The Fee shall be payable, without setoff, by wire transfer in
immediately available funds, to an account specified by the Acquiror, not later
than three business days following the first occurrence of a Fee Trigger Event.
ARTICLE IX
Miscellaneous
9.01 Survival No representations, warranties, agreements and
covenants contained in this Agreement shall survive the Effective Time or
termination of this Agreement; provided, however, that (a) the agreements of the
parties contained in Sections 3.03, 3.04 and 3.05 and 6.11, and in Article VIII
and this Article IX shall survive the Effective Time and (b) if this Agreement
is terminated prior to the Effective Time, the agreements of the parties
contained in Sections 6.05(b), 8.02 and 8.03 and in this Article IX shall
survive such termination.
9.02 Waiver; Amendment. Prior to the Effective Time, any provision
of this Agreement may be (a) waived by the party benefitted by the provision, or
(b) amended or modified at any time, by an agreement in writing between the
parties hereto approved or authorized by their respective Boards of Directors
and executed in the same manner as this Agreement, except that, after approval
of the Merger by the shareholders of the Company, no amendment may be made which
under applicable law requires further approval of such shareholders without
obtaining such required further approval.
9.03 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
9.04 Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Minnesota applicable to
contracts made and to be performed entirely within such State.
9.05 Expenses. Each party hereto will bear all expenses incurred by
it in connection with this Agreement and the transactions contemplated hereby.
9.06 Notices. All notices, requests and other communications
hereunder to a party shall be in writing and shall be deemed given (a) on the
date of delivery, if personally delivered or telecopied (with confirmation), (b)
on the first business day following the date of dispatch, if delivered by a
recognized next-day courier service, or (c) on the third business day following
the date of mailing, if mailed by registered or certified mail (return receipt
requested), in each case to such party at its address or telecopy number set
forth below or such other address or numbers as such party may specify by notice
to the parties hereto.
If to the Company, to:
Xxxxx Xxxxxxx Companies Inc
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Chairman and Chief Executive Officer
Facsimile: (000) 000-0000
With copies to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxx, Xxxxxxxx and Xxxxxx
00000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
and
Xxxxxx X. Xxxxxxx, Esq.
Faegre & Xxxxxx LLP
0000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
If to the Acquiror, to:
U.S. Bancorp
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Mitau, Esq.
Facsimile: (000) 000-0000
With a copy to:
H. Xxxxxx Xxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
9.07 Entire Understanding; No Third-Party Beneficiaries. This
Agreement represents the entire understanding of the parties hereto with
reference to the transactions contemplated hereby and this Agreement supersedes
any and all other oral or written agreements heretofore made. Except for Section
6.11, insofar as such Section expressly provides certain rights to the
Indemnified Parties named therein, nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the parties hereto or
their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in counterparts by their duly authorized officers, all as of the day
and year first above written.
XXXXX XXXXXXX COMPANIES INC.
By: /s/ Xxxxxxx Xxxxx
Name: Addison X. Xxxxx
Title: Chairman, President,
Cheif Executive Officer
U.S. BANCORP
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice Chairman
CUB ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
