EXHIBIT A-1
Agreement and Plan of Merger
by and among
Xxxxxxx-Xxxxxx Corporation
Unitrin, Inc.
and CW Disposition Company
dated as of November 6, 2000
TABLE OF CONTENTS
ARTICLE 1
THE MERGER......................................................2
Section 1.1............................................The Merger
2
Section 1.2.........Effect on Capital Stock at the Effective Time 2
Section 1.3....................................Share Certificates 3
ARTICLE 2
THE SURVIVING CORPORATION.......................................4
Section 2.1..........................Certificate of Incorporation 4
Section 2.2...............................................By-Laws 4
Section 2.3................................Directors and Officers 5
ARTICLE 3
COVENANTS AND REPRESENTATIONS AND WARRANTIES....................6
Section 3.1..................................Stockholders Meeting 6
Section 3.2................................Filings; Other Actions 6
Section 3.3....................................Reasonable Efforts 8
Section 3.4.........Representations and Warranties of the Company 8
Section 3.5........Representations and Warranties of UNITRIN and
Merger Sub 10
ARTICLE 4
CONDITIONS TO THE MERGER.......................................11
Section 4.1...........Conditions to the Obligation of the Company 11
Section 4.2........Conditions to the Obligations of UNITRIN and
Merger Sub 13
ARTICLE 5
TERMINATION....................................................15
Section 5.1...........................................Termination 15
Section 5.2.................................Effect of Termination 16
ARTICLE 6
MISCELLANEOUS..................................................16
Section 6.1...............................................Notices 16
Section 6.2................................Successors and Assigns 18
Section 6.3.........................................Governing Law 18
Section 6.4...........................Counterparts; Effectiveness 18
Section 6.5...........................................Amendments. 18
Agreement and plan of merger, dated as of november 6, 2000 (this
"agreement"), among xxxxxxx-xxxxxx corporation, a delaware corporation (the
"company"), unitrin, inc., A delaware corporation ("unitrin"), and cw
disposition company, a delaware corporation and a wholly owned subsidiary of
unitrin ("merger sub").
WHEREAS, UNITRIN owns all the issued and outstanding shares of common
stock, par value $.01 per share, of Merger Sub ("Merger Sub Common Stock"), and
4,382,400 shares (approximately 43% of the total number of issued and
outstanding shares) of common stock, par value $1.00 per share, of the Company
("Common Stock");
WHEREAS, prior to the effectiveness of the Merger (as defined below),
UNITRIN plans to contribute to Merger Sub 4,382,400 shares (approximately 43% of
the total number of issued and outstanding shares) of Common Stock (the
"Contributed Shares");
WHEREAS, the Company and UNITRIN desire that Merger Sub merge with
and into the Company (the "Merger"), upon the terms and subject to the
conditions set forth in this Agreement in accordance with the General
Corporation Law of the State of Delaware (the "DGCL"), pursuant to which all the
issued and outstanding shares of Merger Sub Common Stock shall be converted into
shares of a new Class B common stock, par value $1.00 per share, of the Company
("Class B Common Stock"), and all the issued and outstanding shares of Common
Stock (other than the Contributed Shares held by Merger Sub, which shall be
canceled with no securities or other consideration issued in exchange therefor)
shall remain issued and outstanding;
WHEREAS, UNITRIN has agreed, subject to certain conditions, to
distribute all the shares of Class B Common Stock, on a pro rata basis, to the
holders of the common stock of UNITRIN promptly following consummation of the
Merger (the "Distribution"), pursuant to the terms and conditions of a
Distribution Agreement entered into between the Company and UNITRIN dated as of
the date hereof (the "Distribution Agreement"), which provides for the
Distribution and certain other matters;
WHEREAS, the Boards of Directors of the Company and Merger Sub by
resolutions duly adopted have approved the terms, and declared the advisability,
of this Agreement and of the Merger, and the Company has directed the submission
of this Agreement to its stockholders for adoption; and
WHEREAS, the Merger is intended to constitute a reorganization within
the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as
amended (the "Code").
NOW, THEREFORE in consideration of the premises and the mutual
agreements and provisions herein contained, the parties hereto agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 The Merger
(1) Upon the terms and subject to the conditions of this Agreement,
at the Effective Time (as defined below), Merger Sub shall be merged with and
into the Company in accordance with the DGCL, whereupon the separate corporate
existence of Merger Sub shall cease, and the Company shall be the surviving
corporation (the "Surviving Corporation").
(2) Following satisfaction or waiver of all conditions to the Merger,
but only on the Distribution Date (as defined in the Distribution Agreement),
the Company shall file a Certificate of Merger (the "Certificate of Merger")
with the Secretary of State of the State of Delaware and make all other filings
or recordings required by the DGCL in connection with the Merger. The Merger
shall become effective at such time as the Certificate of Merger is duly filed
with the Secretary of State of the State of Delaware or at such later time as is
specified in the Certificate of Merger (the "Effective Time").
(3) At and after the Effective Time, the Merger shall have the
effects set forth in the DGCL. Without limiting the foregoing and subject
thereto, from and after the Effective Time, the Surviving Corporation shall
possess all the rights, privileges, powers and franchises and be subject to all
the restrictions, disabilities and duties of the Company and Merger Sub, all as
provided under the DGCL.
Section 1.2 Effect on Capital Stock at the Effective Time:t the Effective Time:
(1) All the shares of Merger Sub Common Stock outstanding immediately
prior to the Effective Time shall be converted in the aggregate into and become
4,382,400 fully paid and non-assessable shares of Class B Common Stock of the
Surviving Corporation and shall have the rights and privileges as set forth in
the Surviving Corporation Certificate of Incorporation (as defined in Section
2.1).
(2) Each of the Contributed Shares shall automatically be canceled
and retired and shall cease to exist, and no stock of the Surviving Corporation
or other consideration shall be delivered in exchange therefor.
(3) Each share of Common Stock outstanding immediately prior to the
Effective Time (other than shares to be canceled in accordance with Section
1.2(b)) shall remain issued and outstanding, and each share of Common Stock that
immediately prior to the Effective Time was held in the treasury of the Company
shall remain in the treasury of the Company and, in each case, shall have the
rights and privileges as set forth in the Surviving Corporation Certificate of
Incorporation (as defined in Section 2.1).
Section 1.3 Share Certificates
(1) As soon as practicable after the Effective Time:
(1) the Surviving Corporation shall deliver, or cause to be
delivered, to UNITRIN a number of certificates issued in the names of such
persons, in each case, as UNITRIN shall direct, representing in the aggregate
4,382,400 shares of Class B Common Stock of the Surviving Corporation which
UNITRIN has the right to receive upon conversion of shares of Merger Sub Common
Stock pursuant to the provisions of Section 1.2 (a) hereof;
(2) the Surviving Corporation shall cancel the share certificate
or certificates that immediately prior to the Effective Time represented the
shares of Common Stock owned directly by Merger Sub; and
(3) the share certificates that immediately prior to the
Effective Time represented shares of Common Stock that remain issued and
outstanding or in the treasury of the Company pursuant to Section 1.2(c) hereof
shall not be exchanged and shall continue to represent an equal number of shares
of Common Stock of the Surviving Corporation without physical substitution of
share certificates of the Surviving Corporation for existing share certificates
of the Company.
(2) Any dividend or other distribution declared or made with respect
to any shares of capital stock of the Company, whether the record date for such
dividend or distribution is before or after the Effective Time, shall be paid to
the holder of record of such shares of capital stock on such record date,
regardless of whether such holder has surrendered its certificates representing
Common Stock or received certificates representing Class B Common Stock pursuant
to Section 1.3(a)(i).
ARTICLE 2
THE SURVIVING CORPORATION
Section 2.1 Certificate of Incorporation
(1) In the event the adoption of this Agreement and the Governance
Provisions (as defined below) is approved by the stockholders of the Company at
the Stockholders Meeting (as defined below), at the Effective Time the Restated
Certificate of Incorporation of the Company as in effect immediately prior to
the Effective Time shall be amended so as to read in its entirety as set forth
in Exhibit A-1(a) hereto and as so amended shall be the Restated Certificate of
Incorporation of the Surviving Corporation.
(2) In the event the adoption of the Governance Provisions is not
approved, but the adoption of this Agreement is approved, by the stockholders of
the Company at the Stockholders Meeting, and the Company waives the condition to
its obligation to consummate the Merger set forth in Section 4.1(b) hereof, at
the Effective Time the Restated Certificate of Incorporation of the Company as
in effect immediately prior to the Effective Time shall be amended so as to read
in its entirety as set forth in Exhibit A-1(b) hereto and as so amended shall be
the Restated Certificate of Incorporation of the Surviving Corporation.
(3) The Restated Certificate of Incorporation of the Surviving
Corporation that becomes effective pursuant to either Section 2.1(a) or 2.1(b)
hereof is herein referred to as the "Surviving Corporation Certificate of
Incorporation."
Section 2.2 By-Laws
(1) In the event the adoption of this Agreement and the Governance
Provisions is approved by the stockholders of the Company at the Stockholders
Meeting, at the Effective Time the By-Laws of the Company as in effect
immediately prior to the Effective Time shall be amended so as to read in their
entirety as set forth in Exhibit A-1(c) hereto and as so amended shall be the
By-Laws of the Surviving Corporation.
(2) In the event the adoption of the Governance Provisions is not
approved, but the adoption of this Agreement is approved, by the stockholders of
the Company at the Stockholders Meeting, and the Company waives the condition to
its obligation to consummate the Merger set forth in Section 4.1(b) hereof, at
the Effective Time the By-Laws of the Company as in effect immediately prior to
the Effective Time shall be amended so as to read in their entirety as set forth
in Exhibit A-1(d) hereto and as so amended shall be the By-Laws of the Surviving
Corporation.
(3) The By-Laws of the Surviving Corporation as amended pursuant to
either Section 2.2(a) or 2.2(b) hereof are herein referred to as the "Surviving
Corporation By-Laws."
Section 2.3 Directors and Officers
(1) The Surviving Corporation's board of directors shall consist of 8
members. From and after the Effective Time, until the earlier of their removal
or resignation or until their successors are duly elected or appointed and
qualified in accordance with applicable law, the directors of the Surviving
Corporation shall consist of the directors of the Company in office at the
Effective Time. Each such director shall be designated to serve as a Director or
a Class B Director (each as defined in the Surviving Corporation Certificate of
Incorporation), such designation to be mutually agreed between UNITRIN and the
Company and disclosed in the Proxy Statement (as defined below).
(2) In the event the adoption of the Governance Provisions is
approved by the stockholders of the Company at the Stockholders Meeting, at the
Effective Time the directors of the Surviving Corporation shall be divided into
three classes pursuant to the Surviving Corporation Certificate of
Incorporation, and each such director shall be designated to serve as a Class I
Director, Class II Director or Class III Director (each as defined in the
Surviving Corporation Certificate of Incorporation), such designation to be
disclosed in the Proxy Statement.
(3) From and after the Effective Time, until the earlier of their
removal or resignation or until their successors are duly appointed and
qualified in accordance with applicable law and the Surviving Corporation
By-Laws, the officers of the Company shall be the officers of the Surviving
Corporation.
ARTICLE 3
COVENANTS AND REPRESENTATIONS AND WARRANTIES
Section 3.1 Stockholders Meeting. The Company shall, as soon as practicable
following the date of this Agreement, duly call, give notice of, convene and
hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose
of considering, as two separate proposals: (a) the adoption of this Agreement;
and (b) the approval of amendments to the Company's Restated Certificate of
Incorporation to be effected by the Merger, if so approved, providing for, among
other things, (i) the proposed classified Board, (ii) the elimination of the
stockholders' ability to act by written consent and to call a special meeting,
(iii) the requirement of a supermajority vote for (A) stockholders to amend the
Surviving Corporation By-Laws and (B) any amendment to the Surviving Corporation
Certificate of Incorporation that would affect the Governance Provisions, (iv)
the implementation of limits on Board size and (v) the ability to fill Board
vacancies and newly created directorships, all as set forth in Exhibit A-1(a)
hereto (the "Governance Provisions"), to become effective solely upon
effectiveness of the Merger. The Company shall, through its Board of Directors,
recommend to its stockholders adoption of this Agreement and shall not withdraw,
change or modify such recommendation; provided, however, that the Company's
Board of Directors may withdraw, change or modify such recommendation if it
determines in good faith, after consultation with outside counsel, that it would
be inconsistent with the Board's fiduciary duties to the stockholders of the
Company not to withdraw, change or modify such recommendation.
Section 3.2 Filings; Other Actions
(1) Subject to the provisions of this Agreement and the Distribution
Agreement, the Company shall prepare and file with the Securities and Exchange
Commission (the "SEC") a proxy statement (the "Proxy Statement") for the
solicitation of proxies in favor of (i) the adoption of this Agreement; and (ii)
the approval of the Governance Provisions as amendments to the Company's
Restated Certificate of Incorporation to become effective solely upon the
effectiveness of the Merger. The Company shall not propose to its stockholders
the adoption of the Governance Provisions as independent amendments to the
Company's Restated Certificate of Incorporation, but only as amendments to
become effective solely upon the effectiveness of the Merger. The Company shall
use all reasonable efforts to have the Proxy Statement cleared by the SEC for
mailing in definitive form as promptly as practicable after such filing. The
Company and UNITRIN shall cooperate with each other in the preparation of the
Proxy Statement and any amendment or supplement thereto, and the Company shall
notify UNITRIN of the receipt of any comments of the SEC with respect to the
Proxy Statement and of any requests by the SEC for any amendment or supplement
thereto or for additional information and shall provide to UNITRIN promptly
copies of all correspondence between the SEC and the Company or any of its
advisors with respect to the Proxy Statement. The Company shall give UNITRIN and
its counsel appropriate advance opportunity to review and comment upon the Proxy
Statement and all responses to requests for additional information by, and
replies to comments of, the SEC, and shall incorporate therein any reasonable
comments UNITRIN may deliver to the Company with respect thereto, before such
Proxy Statement, response or reply is filed with or sent to the SEC. The Company
agrees to use all reasonable efforts, after consultation with UNITRIN and its
advisors, to respond promptly to all such comments of, and requests by, the SEC
and to cause the Proxy Statement to be mailed to the holders of the Common Stock
entitled to vote at the Stockholders Meeting as soon as reasonably possible
following the execution hereof. UNITRIN shall provide the Company such
information concerning the business and affairs of UNITRIN and Merger Sub as is
reasonably required for inclusion in the Proxy Statement.
(2) Each of the Company and UNITRIN shall promptly, and in any event
within fifteen business days after the execution and delivery of this Agreement,
make all filings or submissions as are required under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and any other
applicable law.
(3) Each of the Company and UNITRIN agrees promptly to furnish to the
other all copies of written communications (and to advise one another of the
substance of all material oral communications) received by it, or any of its
affiliates or representatives, from, or delivered by any of the foregoing to,
any federal, state, local or international court, commission, governmental body,
agency, authority, tribunal, board or other governmental entity (each a
"Governmental Entity") in respect of the transactions contemplated hereby.
(4) At the Stockholders' Meeting, UNITRIN agrees to vote, or cause to be
voted, all shares of Common Stock owned by it and any of its subsidiaries or
affiliates in favor of the adoption of this Agreement and the approval of the
Governance Provisions.
(5) As soon as reasonably practicable following execution of this
Agreement, UNITRIN, as the sole stockholder of Merger Sub, shall execute and
deliver to Merger Sub in accordance with Section 228 of the DGCL a written
consent to adoption of this Agreement.
Section 3.3 Reasonable Efforts. Upon the terms and subject to the conditions set
forth in this Agreement, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to obtain the adoption of this Agreement and the
approval of the Governance Provisions by the stockholders of the Company as
contemplated by Sections 4.1(a), 4.1(b) and 4.2(a) hereof and to consummate, as
soon as practicable following such approval, the Merger and the other
transactions contemplated by this Agreement and the Distribution Agreement,
including, but not limited to (a) the obtaining of all necessary actions,
waivers, consents and approvals from all Governmental Entities and the making of
all necessary registrations and filings (including filings with Governmental
Entities) and the taking of all reasonable steps as may be necessary to obtain
an approval or waiver from, or to avoid an action or proceeding by, any
Governmental Entity (including those in connection with the HSR Act), (b) the
obtaining of all necessary consents, approvals or waivers from third parties,
(c) the defending of any lawsuits or other legal proceedings, whether judicial
or administrative, challenging this Agreement, the Distribution Agreement or the
consummation of the transactions contemplated hereby or thereby, including
seeking to have any stay or temporary restraining order entered by any court or
other Governmental Entity with respect to the Merger, this Agreement or the
Distribution Agreement vacated or reversed, (d) the execution and delivery of
any additional instruments necessary to consummate the transactions contemplated
by this Agreement and the Distribution Agreement and (e) causing all conditions
to the parties' obligations to consummate (i) the Merger set forth in Article 4
hereof and (ii) the Distribution set forth in Section 2.1(b) of the Distribution
Agreement to be satisfied. The Company and UNITRIN, upon the other's request,
shall provide all such information reasonably necessary to accomplish the
foregoing concerning the party's business and affairs to the other party.
Section 3.4 The Company hereby represents and warrants to UNITRIN and Merger Sub
that:
(1) the Company's Board of Directors has approved and declared advisable
the Merger, this Agreement, the Distribution Agreement and the transactions
contemplated hereby and thereby, has determined that the Merger and the other
transactions contemplated by this Agreement and the Distribution Agreement are
in the best interests of the stockholders of the Company and, subject to Section
3.1 hereof, has recommended that the stockholders of the Company vote in favor
of the adoption of this Agreement;
(2) the Proxy Statement, the form of proxy and any other solicitation
materials used in connection therewith and any oral solicitations of proxies
made by the Company shall not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made, in
light of the circumstances under which they were made, not misleading or omit
any statement necessary to correct any statement in any earlier communication
with respect to any solicitation of a proxy for any of the matters to be voted
upon at the Stockholders Meeting which has become false or misleading, except
that no representation or warranty is made by the Company with respect to
information relating to UNITRIN or Merger Sub that is provided by UNITRIN for
inclusion in the Proxy Statement or any such other proxy material or oral
solicitation;
(3) this Agreement has been duly executed and delivered by the Company and
constitutes the valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; and
(4) subject to the changes in the Company's capitalization contemplated by
this Agreement, the capitalization of the Company is as follows:
(1) 22,500,000 authorized shares of Common Stock of which 10,014,161
shares were outstanding at the close of business on October 16, 2000;
(2) 4,984,149 shares of Common Stock which are held in the treasury
of the Company as the date of this Agreement;
(3) 650,000 authorized shares of preferred stock of which zero (0)
shares are outstanding on the date of this Agreement; and
(4) no shares of any other class or series of capital stock are
authorized, issued or outstanding.
Section 3.5 Representations and Warranties of UNITRIN and Merger Sub. Each of
UNITRIN and Merger Sub jointly and severally represent and warrant to the
Company that:
(1) the Board of Directors of each of UNITRIN and Merger Sub, as
applicable, has approved and declared advisable the Merger, this Agreement, the
Distribution Agreement and the transactions contemplated hereby and thereby,
and, other than as contemplated by Section 3.2(e) hereof, no stockholder
approval or other further corporate action will be required on the part of
UNITRIN or Merger Sub;
(2) this Agreement has been duly executed and delivered by UNITRIN and
Merger Sub and constitutes the valid and binding agreement of each such
corporation, enforceable against UNITRIN and Merger Sub in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law) and an implied covenant of good faith and
fair dealing;
(3) UNITRIN owns all outstanding capital stock of Merger Sub free and
clear of any claims, liens or encumbrances and no other person holds any capital
stock of Merger Sub nor has any right to acquire any equity interest in Merger
Sub;
(4) as of immediately prior to the Effective Time, all of the Contributed
Shares shall be owned beneficially and of record by Merger Sub, free and clear
of any claims, liens or encumbrances; and
(5) Merger Sub was formed by UNITRIN solely for the purposes of
effectuating the Merger upon the terms and subject to the conditions of this
Agreement; Merger Sub has no employees, will have no assets other than the
Contributed Shares, has not entered into any contract, agreement or other
commitment with any person except for customary corporate organizational matters
or as specifically set forth in this Agreement, and has no liabilities,
commitments or obligations of any kind (known or unknown, fixed or contingent),
except for those obligations specifically set forth in this Agreement.
ARTICLE 4
CONDITIONS TO THE MERGER
Section 4.1 Conditions to the Obligation of the Company. The obligation of the
Company to consummate the Merger is subject to the satisfaction (or waiver by
the Company, except that the condition set forth in Section 4.1(a) may not be
waived) of the following conditions:
(1) a proposal to adopt this Agreement shall have been approved by the
holders of (i) a majority of the Common Stock outstanding and entitled to vote
thereon and (ii) a majority of the shares of Common Stock (other than shares
held of record or beneficially owned by UNITRIN) present in person or by proxy
at the Stockholders Meeting and voting on such proposal;
(2) a proposal to approve the Governance Provisions shall have been
approved by a majority of the Common Stock outstanding and entitled to vote
thereon;
(3) the waiting period (and any extension thereof) applicable to the
Merger under the HSR Act shall have expired or been terminated;
(4) no court, arbitrator or other Governmental Entity shall have issued
any order, injunction, decree or other legal restraint or prohibition, and there
shall not be any statute, rule or regulation, restraining or prohibiting the
consummation of the Merger or the Distribution and no proceeding challenging
this Agreement or the Distribution Agreement or the transactions contemplated
hereby or thereby or seeking to prohibit, alter, prevent or materially delay the
Merger or the Distribution shall have been instituted by any Governmental Entity
before any court, arbitrator or other Governmental Entity and be pending;
(5) all actions by or in respect of or filings with any Governmental
Entity required to permit the consummation of the Merger (other than the filing
of the Certificate of Merger in compliance with the DGCL) and the other
transactions contemplated by this Agreement and the Distribution Agreement shall
have been obtained and shall be in full force and effect, except those that
would not reasonably be expected to have a material adverse effect on any
party's ability to consummate the transactions contemplated by this Agreement or
the Distribution Agreement;
(6) prior to the Effective Time, the Board of Directors of UNITRIN shall
have declared the Distribution (subject to the prior consummation of the
Recapitalization (as defined in the Distribution Agreement)), all conditions to
the Distribution set forth in the Distribution Agreement, other than the prior
consummation of the Recapitalization, shall have been satisfied or waived, no
circumstance shall exist that would reasonably be expected to prevent the
consummation of the Distribution immediately following the Merger, and the
Distribution Agreement shall remain in full force and effect;
(7) all representations and warranties of UNITRIN set forth in the
Distribution Agreement (other than the representation and warranty set forth in
Section 2.3(b)(v) of the Distribution Agreement) and all representations and
warranties of UNITRIN and Merger Sub set forth in this Agreement that are
qualified as to materiality shall be true and correct, and any such
representations and warranties that are not so qualified shall be true and
correct in all material respects, as of the Effective Time, and the Company
shall have received a certificate executed by the chief executive officer of
UNITRIN to such effect;
(8) all covenants to have been performed at or prior to the Effective Time
by UNITRIN and Merger Sub pursuant to this Agreement and all covenants to have
been performed at or prior to the Effective Time by UNITRIN pursuant to the
Distribution Agreement shall have been performed by UNITRIN and Merger Sub in
all material respects at or prior to the Effective Time, and the Company shall
have received a certificate executed by the chief executive officer of UNITRIN
to such effect;
(9) each of the Company and UNITRIN shall have received all the Required
Consents (as defined in the Distribution Agreement);
(10) the Class B Common Stock shall have been approved for listing on the
New York Stock Exchange, Inc., subject to official notice of issuance;
(11) no event outside the control of the Company shall have occurred or
failed to occur that prevents the lawful consummation of the Recapitalization;
(12) the transactions contemplated hereby and by the Distribution
Agreement shall be in compliance in all material respects with applicable
federal and state securities and other applicable laws;
(13) all actions and other documents and instruments reasonably necessary
in connection with the transactions contemplated hereby and by the Distribution
Agreement shall have been taken or executed, as the case may be, in form and
substance reasonably satisfactory to the Company; and
(14) either (i) the private letter ruling from the Internal Revenue
Service, providing that, among other things, the Recapitalization and the
Distribution will qualify, to the extent set forth therein, as tax-free
transactions for federal income tax purposes under Sections 354 and 355 of the
Code, respectively (the "IRS Ruling"), shall have been issued and shall continue
in effect, such ruling, insofar as it relates to the tax-free nature of the
Recapitalization, shall be in form and substance satisfactory to the Company in
its sole discretion, and UNITRIN shall have complied with all provisions set
forth in the IRS Ruling that are required to be complied with prior to the
Declaration Date and the Distribution Date (each as defined in the Distribution
Agreement) in order for the Recapitalization to qualify as a tax-free
transaction or (ii) if the IRS Ruling is not obtained, each of UNITRIN and the
Company shall have received a written opinion in form and substance satisfactory
to it of a nationally recognized law firm mutually acceptable to UNITRIN and the
Company (it being agreed that Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
and Xxxxxxx Xxxxxxx & Xxxxxxxx will each be deemed to be mutually acceptable to
UNITRIN and the Company for purposes of this clause (n)), to the same effect as
the IRS Ruling as it relates to the tax-free nature of the Recapitalization.
The foregoing conditions are for the sole benefit of the Company and shall
not give rise to or create any duty on the part of the Company to waive or not
waive any such condition.
Section 4.2 Conditions to the Obligations of UNITRIN and Merger Sub. The
obligations of UNITRIN and Merger Sub to consummate the Merger are subject to
the satisfaction (or waiver by UNITRIN and Merger Sub, except that the condition
set forth in Section 4.2(a) may not be waived) of the following conditions:
(1) a proposal to adopt this Agreement shall have been approved by the
holders of (i) a majority of the Common Stock outstanding and entitled to vote
thereon and (ii) a majority of the shares of Common Stock (other than shares
held of record or beneficially owned by UNITRIN) present in person or by proxy
at the Stockholders Meeting and voting on such proposal;
(2) the waiting period (and any extension thereof) applicable to the
Merger under the HSR Act shall have expired or been terminated;
(3) the IRS Ruling shall have been issued and shall continue in effect,
such ruling shall be in form and substance satisfactory to UNITRIN in its sole
discretion, and the Company shall have complied with all provisions set forth in
the IRS Ruling that are required to be complied with prior to the Declaration
Date and the Distribution Date;
(4) no court, arbitrator or other Governmental Entity shall have issued
any order, injunction, decree or other legal restraint or prohibition, and there
shall not be any statute, rule or regulation, restraining or prohibiting the
consummation of the Merger or the Distribution and no proceeding challenging
this Agreement or the Distribution Agreement or the transactions contemplated
hereby or thereby or seeking to prohibit, alter, prevent or materially delay the
Merger or the Distribution shall have been instituted by any Governmental Entity
before any court, arbitrator or other Governmental Entity and be pending;
(5) all actions by or in respect of or filings with any Governmental
Entity required to permit the consummation of the Merger (other than the filing
of the Certificate of Merger in compliance with the DGCL) and the other
transactions contemplated by this Agreement and the Distribution Agreement shall
have been obtained and shall be in full force and effect, except those that
would not reasonably be expected to have a material adverse effect on any
party's ability to consummate the transactions contemplated by this Agreement or
the Distribution Agreement;
(6) at the Effective Time, all conditions to the declaration of the
Distribution and the Distribution set forth in the Distribution Agreement, other
than the prior consummation of the Recapitalization, shall have been satisfied
or waived, no circumstance shall exist that would reasonably be expected to
prevent the consummation of the Distribution immediately following the Merger,
and the Distribution Agreement shall remain in full force and effect;
(7) all representations and warranties of the Company set forth in the
Distribution Agreement (other than the representation and warranty set forth in
Section 2.3(a)(v) of the Distribution Agreement) and this Agreement that are
qualified as to materiality shall be true and correct, and any such
representations and warranties that are not so qualified shall be true and
correct in all material respects, as of the Effective Time, and UNITRIN shall
have received a certificate executed by the chief executive officer of the
Company to such effect; and
(8) all covenants to have been performed at or prior to the Effective Time
by the Company pursuant to this Agreement or the Distribution Agreement shall
have been performed at or prior to the Effective Time by the Company in all
material respects, and UNITRIN shall have received a certificate executed by the
chief executive officer of the Company to such effect.
The foregoing conditions are for the sole benefit of UNITRIN and Merger
Sub and shall not give rise to or create any duty on the part of UNITRIN or
Merger Sub to waive or not waive any such condition.
ARTICLE 5
TERMINATION
Section 5.1 Termination
(1) This Agreement may be terminated and the Merger may be abandoned at
any time prior to the Effective Time (notwithstanding any approval of this
agreement by the stockholders of the Company):
(1) by mutual written consent of the Company and UNITRIN;
(2) by either the Company or UNITRIN, if there shall be any law or
regulation that makes consummation of the Merger illegal or otherwise prohibited
or if any judgment, injunction, order or decree enjoining the Company or Merger
Sub from consummating the Merger is entered and such judgment, injunction, order
or decree shall become final and nonappealable;
(3) by either the Company or UNITRIN, if there shall be any law or
regulation that makes consummation of the Distribution illegal or otherwise
prohibited or if any judgment, injunction, order or decree enjoining UNITRIN
from consummating the Distribution is entered and such judgment, injunction,
order or decree shall become final and nonappealable;
(4) by either the Company or UNITRIN, if after a vote on the matter
by the Company's stockholders at the Stockholders Meeting, the conditions set
forth in Sections 4.1(a) and (b) hereof, in the case of the Company, and Section
4.2(a) hereof, in the case of UNITRIN, are not satisfied;
(5) by either the Company or UNITRIN, if the Merger is not
consummated by June 30, 2001; provided that this right shall not be available to
any party that is in material breach of its obligations under this Agreement or
the Distribution Agreement; or
(6) by either the Company or UNITRIN, to the extent the Company or
UNITRIN, as applicable, is allowed to terminate the Distribution Agreement
pursuant to Section 5.10(a)(iii) or 5.10(a)(iv)(C) thereof, as applicable.
(2) This Agreement shall terminate automatically without any action on the
part of the Company, UNITRIN or Merger Sub in the event the Distribution
Agreement is terminated according to its terms.
Section 5.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 5.1, this Agreement shall become void and of no effect with no liability
on the part of any party hereto.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Notices. All notices and other communications hereunder shall be in
writing, shall be effective when received and shall be duly given if delivered
by (a) hand delivery, (b) U.S. Mail, postage prepaid, for first class delivery,
(c) Federal Express or similar carrier, freight prepaid, for next business day
delivery, or (d) electronic transmission, provided that confirmation of
transmission and receipt is confirmed to each party at the following respective
addresses (or at such other address for a party as shall be specified by like
notice):
To UNITRIN:
UNITRIN, INC.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Chief Financial Officer
with a copy to:
UNITRIN, INC.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: General Counsel
and with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxx, Esq.
To Merger Sub:
CW DISPOSITION COMPANY
c/o UNITRIN, INC.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Chief Financial Officer
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxx, Esq.
To the Company:
XXXXXXX-XXXXXX CORPORATION
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attn: General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxxx X. Xxxxxxxxxx, Esq.
Section 6.2 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other party hereto.
Section 6.3 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware.
Section 6.4 Counterparts; Effictiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other party hereto.
Section 6.5 Amendments. Any provision of this Agreement may be amended or waived
prior to the Effective Time (whether before or after approval of matters
presented in connection with the Merger by the stockholders of the Company) if,
and only if, such amendment or waiver is in writing and signed, in the case of
an amendment, by the Company and UNITRIN or, in the case of a waiver, by the
party against whom such waiver is to be effective; provided that after the
adoption of this Agreement by the stockholders of the Company, there shall be no
amendment that by law requires further approval of such stockholders without
obtaining such further approval of such stockholders.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
XXXXXXX-XXXXXX CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title:Chairman and Chief Executive Officer
UNITRIN, INC.
By /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title:Senior Vice President and
Chief Financial Officer
CW DISPOSITION COMPANY
By /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title:President
