-------------------------------------------------------------------------------
Exhibit 10.4
AGREEMENT AND PLAN
OF MERGER
BY AND AMONG
▇▇▇▇▇▇▇▇.▇▇▇, INC.,
CCMH MERGER SUBSIDIARY, INC.
AND
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT HOLDINGS, INC.
-------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
--------
ARTICLE I.................................................................... 1
SECTION 1.1. THE MERGER.................................................. 1
SECTION 1.2. EFFECTIVE TIME OF THE MERGER................................ 1
ARTICLE II................................................................... 2
SECTION 2.1. CHARTER..................................................... 2
SECTION 2.2. BY-LAWS..................................................... 2
SECTION 2.3. EFFECT OF THE MERGER........................................ 2
SECTION 2.4. DIRECTORS................................................... 2
SECTION 2.5. OFFICERS.................................................... 2
ARTICLE III.................................................................. 3
SECTION 3.1. CONVERSION OF CCMH SHARES IN THE MERGER..................... 3
SECTION 3.2. CONSIDERATION............................................... 4
SECTION 3.3. EXCHANGE OF CERTIFICATES.................................... 4
SECTION 3.4. NO FRACTIONAL SECURITIES.................................... 6
SECTION 3.5. CLOSING..................................................... 6
SECTION 3.6. CLOSING OF CCMH'S TRANSFER BOOKS............................ 7
ARTICLE IV................................................................... 7
SECTION 4.1. ORGANIZATION................................................ 7
SECTION 4.2. CAPITALIZATION.............................................. 7
SECTION 4.3. AUTHORITY; NON-CONTRAVENTION; APPROVALS..................... 8
SECTION 4.4. ABSENCE OF UNDISCLOSED LIABILITIES.......................... 9
SECTION 4.5. ABSENCE OF LITIGATION....................................... 9
SECTION 4.6. REGISTRATION STATEMENT AND PROXY STATEMENT.................. 9
SECTION 4.7. COMPLIANCE WITH AGREEMENTS.................................. 10
SECTION 4.8. ECHAPMAN STOCKHOLDERS' APPROVAL............................. 10
SECTION 4.9. BROKERS AND FINDERS......................................... 10
SECTION 4.10. ▇▇▇▇▇▇▇ CAPITAL MANAGEMENT HOLDINGS, INC.................... 10
SECTION 4.11. ANTI-TAKEOVER STATUTES...................................... 11
ARTICLE V.................................................................... 11
SECTION 5.1. ORGANIZATION AND QUALIFICATION.............................. 11
SECTION 5.2. CAPITALIZATION.............................................. 11
SECTION 5.3. SUBSIDIARIES................................................ 12
SECTION 5.4. AUTHORITY; NON-CONTRAVENTION; APPROVALS..................... 12
SECTION 5.5. SECURITIES REPORTS AND FINANCIAL STATEMENTS................. 13
SECTION 5.6. ABSENCE OF UNDISCLOSED LIABILITIES.......................... 14
SECTION 5.7. ABSENCE OF CERTAIN CHANGES OR EVENTS........................ 14
SECTION 5.8. ABSENCE OF LITIGATION....................................... 14
SECTION 5.9. REGISTRATION STATEMENT AND PROXY STATEMENT.................. 15
SECTION 5.10. NO VIOLATION OF LAW......................................... 15
SECTION 5.11. COMPLIANCE WITH AGREEMENTS.................................. 15
SECTION 5.12. TAXES....................................................... 16
SECTION 5.13. EMPLOYEE BENEFITS PLANS; ERISA.............................. 16
SECTION 5.14. LABOR CONTROVERSIES......................................... 18
SECTION 5.15. TITLE TO ASSETS............................................. 18
SECTION 5.16. CCMH STOCKHOLDERS' APPROVAL................................. 19
SECTION 5.17. TRADEMARKS AND INTELLECTUAL PROPERTY COMPLIANCE............. 19
SECTION 5.18. MATERIAL AGREEMENTS......................................... 19
SECTION 5.19. INSURANCE................................................... 19
PAGE
--------
SECTION 5.20. BROKERS AND FINDERS......................................... 19
SECTION 5.21. CERTAIN TRANSACTIONS........................................ 19
SECTION 5.22. OPINION OF FINANCIAL ADVISOR................................ 20
SECTION 5.23. ANTI-TAKEOVER STATUTES...................................... 20
ARTICLE VI................................................................... 20
SECTION 6.1. CONDUCT OF BUSINESS BY CCMH PENDING THE MERGER.............. 20
SECTION 6.2. CONDUCT OF BUSINESS BY ECHAPMAN PENDING THE MERGER.......... 22
SECTION 6.3. CONTROL OF CCMH'S OPERATIONS................................ 22
SECTION 6.4. CONTROL OF ECHAPMAN'S OPERATIONS............................ 22
SECTION 6.5. ACQUISITION TRANSACTIONS.................................... 23
ARTICLE VII.................................................................. 23
SECTION 7.1. ACCESS TO INFORMATION....................................... 24
SECTION 7.2. STOCKHOLDERS' APPROVAL...................................... 24
SECTION 7.3. AFFILIATES OF CCMH.......................................... 24
SECTION 7.4. EXPENSES AND FEES........................................... 25
SECTION 7.5. AGREEMENT TO COOPERATE...................................... 25
SECTION 7.6. PUBLIC STATEMENTS........................................... 25
SECTION 7.7. NOTIFICATION OF CERTAIN MATTERS............................. 26
SECTION 7.8. PROXY STATEMENT/PROSPECTUS AND REGISTRATION STATEMENT....... 26
SECTION 7.9. TAX-FREE TREATMENT OF MERGER................................ 26
SECTION 7.10. DIRECTORS' AND OFFICERS' INDEMNIFICATION.................... 26
SECTION 7.11. AMENDMENT TO CHI MERGER AGREEMENT........................... 27
ARTICLE VIII................................................................. 28
SECTION 8.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER...................................................... 28
SECTION 8.2. ADDITIONAL CONDITIONS TO OBLIGATION OF CCMH TO EFFECT THE
MERGER...................................................... 29
SECTION 8.3. ADDITIONAL CONDITIONS TO OBLIGATIONS OF ECHAPMAN AND MERGER
SUBSIDIARY TO EFFECT THE MERGER............................. 30
ARTICLE IX................................................................... 30
SECTION 9.1. TERMINATION................................................. 30
SECTION 9.2. EFFECT OF TERMINATION....................................... 31
SECTION 9.3. AMENDMENT................................................... 31
SECTION 9.4. WAIVER...................................................... 31
ARTICLE X.................................................................... 31
SECTION 10.1. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............. 31
SECTION 10.2. NOTICES..................................................... 32
SECTION 10.3. INTERPRETATION.............................................. 33
SECTION 10.4. MISCELLANEOUS............................................... 33
SECTION 10.5. COUNTERPARTS................................................ 33
SECTION 10.6. PARTIES IN INTEREST......................................... 33
SECTION 10.7. EXHIBITS AND SCHEDULES...................................... 33
SECTION 10.8. SEVERABILITY................................................ 33
SECTION 10.9. DEFINITION OF KNOWLEDGE..................................... 34
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), made this 15(th) day of
November, 1999, by and among ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Maryland corporation
("EChapman"), CCMH Merger Subsidiary, Inc., a Maryland corporation and wholly
owned subsidiary of EChapman ("Merger Subsidiary"), and ▇▇▇▇▇▇▇ Capital
Management Holdings, Inc., a Maryland corporation ("CCMH").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of EChapman and CCMH have each
determined that the merger of CCMH with and into Merger Subsidiary (the
"Merger") is consistent with and in furtherance of the long-term business
strategy of EChapman and CCMH and subject to receipt of the fairness opinion
referred to hereinafter is fair to, and in the best interests of, CCMH and its
stockholders;
WHEREAS, the respective Boards of Directors of EChapman, Merger Subsidiary
and CCMH have each approved the Merger, upon the terms and subject to the
conditions set forth herein; and
WHEREAS, EChapman, Merger Subsidiary and CCMH intend to qualify the Merger
as a tax-free reorganization under the provisions of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, the parties hereto, intending to be
legally bound, agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. THE MERGER. Upon the terms and subject to the conditions of
this Agreement, at the Effective Time (as defined in Section 1.2) in accordance
with the Maryland General Corporation Law (the "MGCL"), CCMH shall be merged
with and into Merger Subsidiary and the separate corporate existence of CCMH
shall thereupon cease. Merger Subsidiary shall be the surviving corporation
under the name ▇▇▇▇▇▇▇ Capital Management Holdings, Inc. in the Merger and is
hereinafter sometimes referred to as the "Surviving Corporation." The Surviving
Corporation will be governed by laws of the State of Maryland as a direct,
wholly owned subsidiary of EChapman.
SECTION 1.2. EFFECTIVE TIME OF THE MERGER. The Merger shall become
effective at such time (the "Effective Time") as shall be stated in Articles of
Merger, in a form mutually acceptable to EChapman and CCMH, to be filed with the
State Department of Assessments and Taxation of Maryland (the "SDAT") in
accordance with the MGCL (the "Merger Filing"). The Merger Filing shall be made
simultaneously with or as soon as practicable after the Closing (as defined in
Section 3.5) of the transactions contemplated by this Agreement.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1. CHARTER. The Charter of Merger Subsidiary, as in effect
immediately prior to the Effective Time, except that the name of the Surviving
Corporation will change to ▇▇▇▇▇▇▇ Capital Management Holdings, Inc., shall be
the Charter of the Surviving Corporation until duly amended in accordance with
applicable law.
SECTION 2.2. BY-LAWS. The By-laws of Merger Subsidiary, as in effect
immediately prior to the Effective Time, shall be the By-laws of the Surviving
Corporation until duly amended in accordance with applicable law.
1
SECTION 2.3. EFFECT OF THE MERGER. At the Effective Time, the effect of
the Merger shall be as provided in this Agreement and the applicable provisions
of the MGCL. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, except as otherwise provided herein, all the
property, rights, privileges, powers and franchises of Merger Subsidiary and
CCMH shall vest in the Surviving Corporation, all debts, liabilities and duties
of Merger Subsidiary and CCMH shall become the debts, liabilities and duties of
the Surviving Corporation in the same manner as if the Surviving Corporation had
itself incurred them, and the separate corporate existence of Merger Subsidiary
with all its rights, privileges, immunities, powers and franchises shall
continue unaffected by the Merger, except as set forth herein.
SECTION 2.4. DIRECTORS. The directors of Merger Subsidiary immediately
prior to the Effective Time shall be the initial directors of the Surviving
Corporation and shall hold office until their respective successors are duly
elected and qualified in accordance with the Charter and By-laws of the
Surviving Corporation, or their earlier death, resignation or removal.
SECTION 2.5. OFFICERS. The officers of Merger Subsidiary immediately prior
to the Effective Time shall be the initial officers of the Surviving Corporation
and shall serve as the officers of the Surviving Corporation at the pleasure of
the Board of Directors of the Surviving Corporation.
ARTICLE III
CONVERSION OF SHARES
SECTION 3.1. CONVERSION OF CCMH SHARES IN THE MERGER. Subject to
Section 3.4 regarding fractional shares, at the Effective Time, by virtue of the
Merger and without any action on the part of any holder of any shares of CCMH's
common stock, par value $0.001 per share ("CCMH Common Stock"):
(a) Each share of CCMH Common Stock issued and outstanding immediately
prior to the Effective Time, other than CCMH Common Stock owned by EChapman
or Merger Subsidiary or owned by an Objecting Stockholder (as defined in
Section 3.1(c)) shall be converted in accordance with Section 3.3 into the
right to receive the Merger Consideration (as defined in Section 3.2).
(b) Each share of CCMH Common Stock owned by EChapman or Merger
Subsidiary (each a "Non-Converting Share") immediately prior to the
Effective Time, if any, shall be cancelled and extinguished without
conversion thereof into EChapman Shares (as defined in Section 3.2(a)) or
payment therefor.
(c) Any holder (an "Objecting Stockholder") of CCMH Common Stock
("Objecting Shares") who files with CCMH a written objection to the proposed
Merger at or before the stockholders' meeting at which the proposed Merger
will be considered, whose shares are not voted in favor of the approval of
the Merger at the meeting of CCMH stockholders at which the Merger is
approved, and who, within twenty (20) days after the Effective Time (which
time will be set forth in a notice provided to any such stockholder by
EChapman and Merger Subsidiary by certified mail, return receipt requested
pursuant to Section 3-207(b) of the MGCL), makes a written demand upon
Merger Subsidiary for payment for such Objecting Shares, accompanied by a
surrender of the certificates for such Objecting Shares, all pursuant to the
provisions of Title 3, Subtitle 2 of the MGCL, or any successor statute
thereto, shall be entitled to receive from Merger Subsidiary in cash the
fair value of such Objecting Shares determined in accordance with the
aforesaid provisions of the MGCL, or any successor statute thereto. The
amount paid to any Objecting Stockholder shall be debited against the
capital accounts of Merger Subsidiary. If any Objecting Stockholder objects
to the Merger and demands payment in cash for his Objecting Shares as
aforesaid, EChapman shall pay to Merger Subsidiary, as a contribution to its
capital, cash
2
at a price per share equal to the price per share paid by Merger Subsidiary
to such Objecting Stockholder.
(d) Each unexpired option to purchase CCMH Common Stock ("CCMH
Options") that is outstanding at the Effective Time shall be converted into
an option to purchase the number of EChapman Shares (as defined in
Section 3.2) equal to the number of shares of CCMH Common Stock which could
be acquired upon the exercise of such CCMH Options multiplied by the
Exchange Ratio (as defined in Section 3.2), at an exercise price per share
equal to the per share exercise price of such CCMH Options divided by the
Exchange Ratio rounded to the nearest whole cent and in any case an amount
which, is not less than the par value, if any, of EChapman Shares (the
"Exchanged Options"). EChapman shall maintain sufficient authorized shares
of stock to issue EChapman Shares that will become issuable upon the
exercise of the Exchanged Options.
(e) At the Effective Time, each issued and outstanding share of common
stock, par value $.001 per share, of Merger Subsidiary shall remain
outstanding.
(f) No share of CCMH Common Stock shall be deemed to be outstanding or
to have any rights other than those set forth in this Section 3.1 after the
Effective Time unless specified by applicable provisions of the MGCL.
SECTION 3.2. CONSIDERATION.
(a) The consideration to be issued to each holder of CCMH Common Stock
in the Merger ("Merger Consideration") will be that number of shares of
EChapman common stock, par value $0.001 per share ("EChapman Shares"), which
is determined by multiplying the Exchange Ratio (as defined below) by the
number of shares of CCMH Common Stock held by such holder of CCMH Common
Stock on the Closing Date (as defined in Section 3.5). The "Exchange Ratio"
shall equal 2.23363 EChapman Shares for each share of CCMH Common Stock.
(b) No fractional EChapman Shares shall be issued, and, in lieu
thereof, a Fractional Share Payment shall be made (as defined in
Section 3.4).
(c) The Merger Consideration shall be subject to equitable adjustment
in the event of any stock split, stock dividend, reverse stock split or
other change (other than pursuant to exercises of outstanding options) in
the number of EChapman Shares or CCMH Common Stock outstanding prior to
Closing.
SECTION 3.3. EXCHANGE OF CERTIFICATES.
(a) Except as otherwise provided in Section 3.1(c) or by the MGCL, from
and after the Effective Time, all CCMH Common Stock shall no longer be
outstanding and shall automatically be cancelled and retired and shall cease
to exist, and each holder of a certificate representing shares of CCMH
Common Stock shall cease to have any rights with respect thereto, except the
right to receive in exchange therefor, upon surrender thereof to a bank or
trust company designated by EChapman and acceptable to CCMH (the "Exchange
Agent"), a certificate representing EChapman Shares to which such holder is
entitled pursuant to Section 3.1 plus the Fractional Share Payment.
Notwithstanding any other provision of this Agreement, until holders or
transferees of certificates theretofore representing shares of CCMH Common
Stock have surrendered them for exchange as provided herein, no dividends or
other distributions declared or made after the Effective Time with respect
to EChapman Shares with a record date after the Effective Time shall be paid
with respect to any EChapman Shares represented by such certificates and no
Fractional Share Payment shall be made. Upon surrender of a certificate
which immediately prior to the Effective Time represented shares of CCMH
Common Stock, there shall be paid to the holder of such certificate by
EChapman without interest, (i) promptly, the amount of any Fractional Share
Payment with respect to a fractional EChapman Share to which such holder is
entitled, (ii) except as provided in (iii), below, the amount of dividends
or other distributions
3
(without interest) with a record date after the Effective Time which
theretofore became payable with respect to whole EChapman Shares, and
(iii) at the appropriate payment date, the amount of dividends or other
distributions, with a record date after the Effective Time but prior to
surrender and a payment date occurring after surrender, payable with respect
to such whole EChapman Shares.
(b) If any EChapman Shares are to be issued in a name other than that
in which the certificate for shares of CCMH Common Stock surrendered in
exchange therefor is registered, it shall be a condition of such exchange
that the certificate so surrendered shall be properly endorsed and otherwise
in proper form for transfer and the person requesting such exchange shall
have paid to EChapman or the Exchange Agent any applicable transfer or other
taxes required by reason of such issuance.
(c) As of the Effective Time, EChapman shall deposit, or cause to be
deposited, with the Exchange Agent, for the account of Merger Subsidiary,
the number of EChapman Shares required to effect the exchanges referred to
in paragraph (a) above, and cash for purposes of the Fractional Share
Payment. EChapman shall thereafter from time to time deposit, or cause to be
deposited, with the Exchange Agent cash for payment of any dividend or
distributions in respect of such EChapman Shares with a record date after
the Effective Time.
(d) As soon as reasonably practicable after the Effective Time,
EChapman or the Surviving Corporation shall cause the Exchange Agent to mail
to each holder of record as of the Effective Time of a certificate or
certificates that immediately prior to the Effective Time represented
outstanding shares of CCMH Common Stock (the "CCMH Certificates"), whose
shares were converted into the right to receive EChapman Shares (i) a letter
of transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to CCMH Certificates shall pass, only upon delivery
of CCMH Certificates to the Exchange Agent), and (ii) instructions for use
in effecting the surrender of CCMH Certificates in exchange for EChapman
Shares. Upon surrender of a CCMH Certificate for cancellation to the
Exchange Agent, together with a duly executed letter of transmittal, the
holder of such CCMH Certificate shall be entitled to receive in exchange
therefor a certificate representing that number of whole EChapman Shares
into which the shares of CCMH Common Stock theretofore represented by CCMH
Certificates so surrendered shall have been converted pursuant to the
provisions of Section 3.1, and CCMH Certificates so surrendered shall be
cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any
party hereto shall be liable to a holder of shares of CCMH Common Stock for
any EChapman Shares or dividends or distributions thereon delivered to a
public official pursuant to applicable abandoned property, escheat or
similar laws.
(e) Promptly following the date which is six (6) months after the
Effective Time, EChapman or the Surviving Corporation shall cause the
Exchange Agent to deliver to EChapman all certificates, property and other
documents in its possession relating to the transactions described in this
Agreement. Thereafter, each holder of a CCMH Certificate may surrender such
CCMH Certificate to EChapman and (subject to applicable abandoned property,
escheat and similar laws) receive in exchange therefor a certificate
representing EChapman Shares to which such person is entitled, any dividends
or distributions with respect to the EChapman Shares and any Fractional
Share Payment, in each case without any interest thereon. Notwithstanding
the foregoing, none of the Exchange Agent, EChapman, Merger Subsidiary, or
the Surviving Corporation shall be liable to a holder of CCMH Common Stock
for any EChapman Shares delivered to a public official pursuant to
applicable abandoned property, escheat and similar laws.
(f) In the event any CCMH Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming such CCMH Certificate to be lost, stolen or destroyed, and the
posting of a bond by such person in such amount as EChapman may direct
4
as indemnity against any claim that may be made against it or the Exchange
Agent with respect to such CCMH Certificate, the Exchange Agent, EChapman or
the Surviving Corporation, as the case may be, shall issue in exchange for
such lost, stolen or destroyed CCMH Certificate, a certificate representing
the proper number of EChapman Shares deliverable in respect thereof
determined in accordance with this Section 3.3, and cash for the Fractional
Share Payment and any other dividends or distributions in respect of
EChapman Shares with a record date after the Effective Time.
SECTION 3.4. NO FRACTIONAL SECURITIES. No fractional EChapman Shares shall
be issued in the Merger and no stock dividend, stock split or interest shall
relate to any fractional security, and such fractional share interests shall not
entitle the owner thereof to vote or to any other rights of a security holder.
In lieu of any such fractional shares, each holder of CCMH Common Stock, who
would otherwise have been entitled to receive a certificate representing a
fractional EChapman Share upon surrender of CCMH Certificates for exchange
pursuant to this Article III, shall be entitled to receive from the Exchange
Agent a cash payment (the "Fractional Share Payment") equal to the product of
the fractional share interest to which such holder would otherwise be entitled
multiplied by $34.
SECTION 3.5. CLOSING. The closing (the "Closing") of the transactions
contemplated by this Agreement shall take place at the offices of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, LLP, Suite 1800, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on
the day of CCMH's Stockholders' Approval as such term is defined in
Section 7.2, below, or at such other time and place as EChapman and CCMH shall
reasonably agree (the date on which the Closing occurs is referred to in this
Agreement as the "Closing Date").
SECTION 3.6. CLOSING OF CCMH'S TRANSFER BOOKS. At the Effective Time, the
stock transfer books of CCMH shall be closed and no transfer of shares of CCMH
Common Stock which were outstanding immediately prior to the Effective Time
shall thereafter be made. From and after the Effective Time, the holders of CCMH
Certificates representing shares of CCMH Common Stock outstanding immediately
prior to the Effective Time shall cease to have any rights as stockholders of
CCMH, except as otherwise provided herein or by law. If, after the Effective
Time, subject to the terms and conditions of this Agreement, CCMH Certificates
formerly representing CCMH Common Stock are presented to the Exchange Agent,
EChapman or Surviving Corporation, as the case may be, they shall be cancelled
and exchanged for certificates representing EChapman Shares and cash for the
Fractional Share Payment and any other dividends or distributions in respect of
EChapman Shares with a record date after the Effective Time in accordance with
this Article III.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ECHAPMAN AND MERGER SUBSIDIARY
EChapman and Merger Subsidiary each represent and warrant to CCMH as of the
date hereof as follows:
SECTION 4.1. ORGANIZATION. The Merger Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Maryland. EChapman is a corporation duly organized and validly existing and in
good standing under the laws of the state of Maryland. Each of EChapman and
Merger Subsidiary has the requisite corporate power and authority to own, lease
and operate its assets and properties and to carry on its business as it is now
being conducted. Neither EChapman nor Merger Subsidiary is in violation of any
of the provisions of their respective charters or By-laws.
SECTION 4.2. CAPITALIZATION.
(a) The authorized capital stock of EChapman consists of 50,000,000
shares of EChapman Shares, of which one share is outstanding. The issued and
outstanding EChapman Share is, and all EChapman Shares to be issued at the
Effective Time shall be, when issued, duly authorized, validly
5
issued, fully paid, nonassessable and free of preemptive rights granted by
EChapman or by applicable law.
(b) Except as set forth in this Agreement, the Affiliate Agreements (as
defined in Section 7.3) and the CHI Merger Agreement (as defined in
Section 4.10) and in connection with the EChapman Public Offering (as
defined in Section 8.1(f)), there are (i) no outstanding subscriptions,
options, calls, contracts, commitments, understandings, restrictions,
arrangements, rights or warrants, including any right of conversion or
exchange under any outstanding security, instrument or other agreement and
also including any rights plan or other anti-takeover agreement, obligating
EChapman or any subsidiary of EChapman to issue, deliver or sell, or cause
to be issued, delivered or sold, additional shares of the capital stock of
EChapman or obligating EChapman or any subsidiary of EChapman to grant,
extend or enter into any such agreement or commitment, and (ii) no voting
trusts, proxies or other agreements or understandings to which EChapman or
any subsidiary of EChapman is a party or is bound with respect to the voting
of any shares of capital stock of EChapman and, to the knowledge of
EChapman, there are no such trusts, proxies, agreements or understandings
by, between or among any of EChapman's stockholders with respect to EChapman
Shares.
(c) The authorized capital stock of Merger Subsidiary consists of
20,000,000 shares of Merger Subsidiary Common Stock, of which 1,000 shares
are issued and outstanding, all of which are owned beneficially and of
record by EChapman. EChapman has no other direct or indirect subsidiaries,
except CHI Merger Subsidiary, Inc. and CIHI Merger Subsidiary, Inc.
SECTION 4.3. AUTHORITY; NON-CONTRAVENTION; APPROVALS.
(a) EChapman and Merger Subsidiary each have full corporate power and
authority to enter into this Agreement and, subject to EChapman Required
Statutory Approvals (as defined in Section 4.3(c)), to consummate the
transactions contemplated hereby. This Agreement has been approved by the
Boards of Directors of EChapman and Merger Subsidiary and by the sole
stockholder of EChapman and Merger Subsidiary, and no other corporate
proceedings on the part of EChapman or Merger Subsidiary are necessary to
authorize the execution and delivery of this Agreement or the consummation
by EChapman and Merger Subsidiary of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by each of EChapman and
Merger Subsidiary, and, assuming the due authorization, execution and
delivery hereof by CCMH, constitutes a valid and legally binding agreement
of each of EChapman and Merger Subsidiary, enforceable against each of them
in accordance with its terms, except that such enforcement may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally, and
(ii) general equitable principles.
(b) The execution and delivery of this Agreement by each of EChapman
and Merger Subsidiary does not, and the performance of this Agreement and
the transactions contemplated hereby by EChapman and Merger Subsidiary shall
not, violate, conflict with or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination
or acceleration under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of
EChapman or Merger Subsidiary, under any of the terms, conditions or
provisions of (i) the respective charters and By-laws of EChapman or Merger
Subsidiary, (ii) any statute, law, ordinance, rule, regulation, judgment,
decree, order, injunction, writ, permit or license of any court or
governmental authority, domestic or foreign, applicable to EChapman or
Merger Subsidiary or any of their respective properties or assets, or
(iii) any note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, concession, contract, lease or other instrument,
obligation or agreement of any kind to which EChapman or Merger Subsidiary
is now a party or by which EChapman or
6
Merger Subsidiary or any of their respective properties or assets may be
bound. Excluded from the foregoing sentences of this paragraph (b), insofar
as they apply to the terms, conditions or provisions described in clauses
(ii) and (iii) of the first sentence of this paragraph (b), are such
violations, conflicts, breaches, defaults, terminations, accelerations or
creations of liens, security interests, charges or encumbrances that would
not, in the aggregate, have a material adverse effect on the business,
operations, properties, assets, condition (financial or other) or results of
operations of EChapman and Merger Subsidiary, taken as a whole (an "EChapman
Material Adverse Effect").
(c) Except for (i) the filing of the Registration Statement (as defined
in Section 4.6) with the SEC pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), and the declaration of the effectiveness
thereof by the SEC and filings with various state blue sky authorities and
any other required filings in other jurisdictions to register or exempt
EChapman Shares issuable pursuant hereto, and (ii) the making of the Merger
Filing with the SDAT in connection with the Merger (collectively referred to
as the "EChapman Required Statutory Approvals"), no declaration, filing or
registration with, or notice to, or authorization, consent or approval of,
any governmental or regulatory body or authority, domestic or foreign, is
necessary for the execution and delivery of this Agreement by EChapman or
Merger Subsidiary or the consummation by EChapman or Merger Subsidiary of
the transactions contemplated hereby, other than such declarations, filings,
registrations, notices, authorizations, consents or approvals which, if not
made or obtained, as the case may be, would not, in the aggregate, have an
EChapman Material Adverse Effect, or affect Merger Subsidiary's ability to
consummate the Merger.
SECTION 4.4. ABSENCE OF UNDISCLOSED LIABILITIES. Neither EChapman nor
Merger Subsidiary has any liabilities or obligations (whether absolute, accrued,
contingent or otherwise) of any nature, except liabilities that were incurred in
the ordinary course of business and that will not have an EChapman Material
Adverse Effect.
SECTION 4.5. ABSENCE OF LITIGATION. There is no claim of any kind, suit,
action, proceeding, litigation, arbitration, investigation or controversy
affecting EChapman or Merger Subsidiary pending or, to the knowledge of
EChapman, threatened and neither EChapman nor any of its subsidiaries is subject
to any continuing order of, or written agreement or memorandum of understanding
with, or continuing material investigation by, any governmental entity or
authority, or any judgment, decree, injunction, rule or order of any court,
governmental department, commission, agency, instrumentality or authority, or
any arbitrator.
SECTION 4.6. REGISTRATION STATEMENT AND PROXY STATEMENT. None of the
information supplied or to be supplied by EChapman for inclusion in (a) the
Registration Statement on Form S-4 to be filed under the Securities Act with the
SEC by EChapman and CCMH in connection with the Merger for the purpose of
registering EChapman Shares and Exchanged Options to be issued in connection
with the Merger (the "Registration Statement"), or (b) the proxy statement to be
distributed in connection with CCMH's meeting of stockholders to vote upon this
Agreement and the transactions contemplated hereby (the "Proxy Statement" and,
together with the prospectus included in the Registration Statement, the "Proxy
Statement/Prospectus") will, in the case of the Proxy Statement or any
amendments thereof or supplements thereto, at the time of the mailing of the
Proxy Statement and any amendments or supplements thereto, at the time of the
meeting of stockholders of CCMH to be held in connection with the transactions
contemplated by this Agreement, and at the Effective Time, or, in the case of
the Registration Statement, as amended or supplemented, at the time it is
declared effective by the SEC, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Registration Statement and Proxy Statement/
Prospectus shall comply in all material respects as to form and substance with
the requirements of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder, except that no
7
representation is made by EChapman with respect to information supplied by CCMH
for inclusion therein.
SECTION 4.7. COMPLIANCE WITH AGREEMENTS. EChapman and Merger Subsidiary
are not in breach or violation of or in default in the performance or observance
of any term or provision of, and no event has occurred which, with notice or
lapse of time or action by a third party, could result in a default under
(a) their respective charters or By-Laws; or (b) any contract, commitment,
agreement, indenture, mortgage, loan agreement, note, lease, bond, license,
approval or other instrument to which EChapman or Merger Subsidiary is a party
or by which any of them is bound or to which any of their property is subject,
which breaches, violations and defaults, in the case of clause (b) of this
Section 4.11, would have, in the aggregate, an EChapman Material Adverse Effect.
SECTION 4.8. EChapman Stockholders' Approval. The affirmative vote of the
holders of a majority of the outstanding shares of EChapman Shares entitled to
vote is not necessary to approve the transactions contemplated by this
Agreement.
SECTION 4.9. BROKERS AND FINDERS. Neither EChapman nor any of its
officers, directors or employees has employed any broker or finder or incurred
any liability for any brokerage fees, commissions or finder's fees in connection
with the transactions contemplated hereby.
SECTION 4.10. ▇▇▇▇▇▇▇ HOLDINGS, INC. The representations and warranties of
▇▇▇▇▇▇▇ Holdings, Inc. set forth in Article V of the Agreement and Plan of
Merger dated as of the date of this Agreement (the "CHI Merger Agreement") by
and between ▇▇▇▇▇▇▇ Holdings, Inc., CHI Merger Subsidiary, Inc. and EChapman are
true and correct in all material respects (except that where any statement in a
representation or warranty expressly includes a standard of materiality, such
statement is true and correct in all respects).
SECTION 4.11. ANTI-TAKEOVER STATUTES The provisions of Section 3-601 et
seq. (Special Voting Requirements) and Section 3-701 et seq. (Voting Rights of
Certain Control Shares) of the MGCL do not apply with respect to EChapman or
Merger Subsidiary in connection with the transactions contemplated by this
Agreement.
8
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CCMH
CCMH represents and warrants to EChapman as of the date hereof as follows:
SECTION 5.1. ORGANIZATION AND QUALIFICATION. CCMH is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland and has the requisite corporate power and authority to own, lease and
operate its assets and properties and to carry on its business as it is now
being conducted. CCMH is qualified to do business and is in good standing, where
applicable, in each jurisdiction in which the properties owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified and in good
standing will not, when taken together with all other such failures, have a
material adverse effect on the business, operations, properties, assets,
condition (financial or other) or results of operations of CCMH and its
subsidiaries, taken as a whole (a "CCMH Material Adverse Effect"). CCMH is not
in violation of any of the provisions of its charter or By-Laws.
SECTION 5.2. CAPITALIZATION.
(a) The authorized capital stock of CCMH consists of 20 million shares of
CCMH Common Stock, of which 3,351,334 shares are issued and outstanding. All of
the issued and outstanding shares of CCMH's capital stock have been duly
authorized and validly issued and are fully paid, nonassessable and free of
preemptive rights granted by CCMH or by applicable law.
(b) Except as disclosed in CCMH SEC Reports (as defined in Section 5.5) and
in the CCMH minute book, as of the date hereof, there are (i) no outstanding
subscriptions, options, calls, contracts, commitments, understandings,
restrictions, arrangements, rights or warrants, including any right of
conversion or exchange under any outstanding security, instrument or other
agreement and also including any rights plan or other anti-takeover agreement,
obligating CCMH or any subsidiary of CCMH to issue, deliver or sell, or cause to
be issued, delivered or sold, additional shares of the capital stock of CCMH or
obligating CCMH or any subsidiary of CCMH to grant, extend or enter into any
such agreement or commitment, and (ii) no voting trusts, proxies or other
agreements or understandings to which CCMH or any subsidiary of CCMH is a party
or is bound with respect to the voting of any shares of capital stock of CCMH
and, to the knowledge of CCMH, there are no such trusts, proxies, agreements or
understandings by, between or among any of CCMH's stockholders with respect to
CCMH Common Stock.
SECTION 5.3. SUBSIDIARIES. Except as disclosed in CCMH SEC Reports (as
defined in Section 5.5), CCMH has no subsidiaries. Each direct and indirect
subsidiary of CCMH is duly organized, validly existing and in good standing,
where applicable, under the laws of its jurisdiction of incorporation or
organization and has the requisite corporate power and authority to own, lease
and operate its assets and properties and to carry on its business as it is now
being conducted, except where any failure would not have a CCMH Material Adverse
Effect. Each subsidiary of CCMH is qualified to do business, and is in good
standing, where applicable, in each jurisdiction in which the properties owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification necessary, except where the failure to be so qualified and in
good standing would not have a CCMH Material Adverse Effect. All of the
outstanding shares of capital stock of each corporate subsidiary of CCMH have
been duly authorized and validly issued and are fully paid, nonassessable and
free of preemptive rights and are beneficially owned directly or indirectly by
CCMH, free and clear of any liens, claims or encumbrances. There are no
subscriptions, options, warrants, rights, calls, contracts, voting trusts,
proxies or other commitments, understandings, restrictions or arrangements
relating to the issuance, sale, voting, transfer, ownership or other rights with
respect to any shares of capital stock of any subsidiary of CCMH, including any
right of conversion or exchange under any outstanding security, instrument or
agreement.
9
SECTION 5.4. AUTHORITY; NON-CONTRAVENTION; APPROVALS.
(a) CCMH has full corporate power and authority to enter into this Agreement
and, subject to CCMH Stockholders' Approval (as defined in Section 7.2 and CCMH
Required Statutory Approvals (as defined in Section 5.4(c)), to consummate the
transactions contemplated hereby. This Agreement has been approved by the Board
of Directors of CCMH, and no other corporate proceedings on the part of CCMH are
necessary to authorize the execution and delivery of this Agreement or, except
for CCMH Stockholders' Approval, the consummation by CCMH of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
CCMH, and, assuming the due authorization, execution and delivery hereof by
EChapman and Merger Subsidiary, constitutes a valid and legally binding
agreement of CCMH, enforceable against CCMH in accordance with its terms, except
that such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally, and (ii) general equitable
principles.
(b) The execution and delivery of this Agreement by CCMH does not, and the
performance of this Agreement and the transactions contemplated hereby by CCMH
shall not, violate, conflict with or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of CCMH or any of its
subsidiaries under any of the terms, conditions or provisions of (i) the
respective charters or By-laws of CCMH or any of its subsidiaries, (ii) any
statute, law, ordinance, rule, regulation, judgment, decree, order, injunction,
writ, permit or license of any court or governmental authority applicable to
CCMH or any of its subsidiaries or any of their respective properties or assets,
or (iii) any note, bond, mortgage, indenture, deed of trust, license, franchise,
permit, concession, contract, lease or other instrument, obligation or agreement
of any kind to which CCMH or any of its subsidiaries is now a party or by which
CCMH or any of its subsidiaries or any of their respective properties or assets
may be bound. The consummation by CCMH of the transactions contemplated hereby
will not result in any violation, conflict, breach, termination, acceleration or
creation of liens under any of the terms, conditions or provisions described in
clauses (i) through (iii) of the preceding sentence, subject (x) in the case of
the terms, conditions or provisions described in clause (ii) above, to obtaining
(prior to the Effective Time) CCMH Required Statutory Approvals and CCMH
Stockholders' Approval, and (y) in the case of the terms, conditions or
provisions described in clause (iii) above, to obtaining (prior to the Effective
Time) consents required from lenders, lessors or other third parties. Excluded
from the foregoing sentences of this paragraph (b), insofar as they apply to the
terms, conditions or provisions described in clauses (ii) and (iii) of the first
sentence of this paragraph (b), are such violations, conflicts, breaches,
defaults, terminations, accelerations or creations of liens, security interests,
charges or encumbrances that would not, in the aggregate, have a CCMH Material
Adverse Effect.
(c) Except for (i) the filing of the Registration Statement with the SEC
pursuant to the Securities Act and the Exchange Act and the declaration of the
effectiveness thereof by the SEC and filings with various state blue sky
authorities, and (ii) the making of the Merger Filing with the SDAT of the State
of Maryland in connection with the Merger (the filings and approvals referred to
in clauses (i) through (iii) above are collectively referred to as the "CCMH
Required Statutory Approvals"), no declaration, filing or registration with, or
notice to, or authorization, consent or approval of, any governmental or
regulatory body or authority is necessary for the execution and delivery of this
Agreement by CCMH or the consummation by CCMH of the transactions contemplated
hereby, other than such declarations, filings, registrations, notices,
authorizations, consents or approvals which, if not made or obtained, as the
case may be, would not, in the aggregate, have a CCMH Material Adverse Effect.
SECTION 5.5. SECURITIES REPORTS AND FINANCIAL STATEMENTS. Since
December 31, 1998, CCMH has filed with the SEC all forms, statements, reports
and documents (including all exhibits, amendments
10
and supplements thereto) required to be filed by it under each of the Securities
Act, the Exchange Act and the respective rules and regulations thereunder, all
of which, as amended if applicable, complied in all material respects with all
applicable requirements of the appropriate act and the rules and regulations
thereunder (collectively, the "CCMH SEC Reports"). As of their respective dates,
CCMH SEC Reports did 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 therein, in light of the circumstances under which they were made,
not misleading. The audited consolidated financial statements and unaudited
interim consolidated financial statements of CCMH included in such reports
(collectively, the "CCMH Financial Statements") have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
(except as may be indicated therein or in the notes thereto) and fairly present
the financial position of CCMH and its subsidiaries as of the dates thereof and
the results of their operations and changes in financial position for the
periods then ended, subject, in the case of the unaudited interim financial
statements, to normal year-end and audit adjustments and any other adjustments
described therein.
SECTION 5.6. ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed in CCMH
SEC Reports, neither CCMH nor any of its subsidiaries had at December 31, 1998,
nor has incurred since that date, any liabilities or obligations (whether
absolute, accrued, contingent or otherwise) of any nature, except:
(a) liabilities, obligations or contingencies (i) which are accrued or reserved
against in CCMH Financial Statements or reflected in the notes thereto, or
(ii) which were incurred after December 31, 1998 and were incurred in the
ordinary course of business and consistent with past practices;
(b) liabilities, obligations or contingencies which (i) would not, in the
aggregate, have a CCMH Material Adverse Effect, or (ii) have been discharged or
paid in full prior to the date hereof; and (c) liabilities and obligations which
are of a nature not required to be reflected in the consolidated financial
statements of CCMH and its subsidiaries prepared in accordance with generally
accepted accounting principles consistently applied and which were incurred in
the normal course of business.
SECTION 5.7. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
CCMH SEC Reports since December 31, 1998, CCMH and its subsidiaries have
conducted their businesses only in the ordinary course and in a manner
consistent with past practice and since December 31, 1998, there has not been
(a) any change in the financial condition, results of operations or business of
CCMH or any of its subsidiaries having, in the aggregate, a CCMH Material
Adverse Effect; (b) any damage, destruction or loss (whether or not covered by
insurance) with respect to any assets of CCMH or any of its subsidiaries having,
in the aggregate, a CCMH Material Adverse Effect; (c) any change by CCMH in its
accounting methods, principles or practices; (d) any revaluation by CCMH of any
of its material assets in any material respect; (e) any entry by CCMH or any of
its subsidiaries into any commitment or transactions material to CCMH and its
subsidiaries, taken as a whole; or (f) any declaration, setting aside or payment
of any dividends or distributions in respect of shares of CCMH Common Stock or
any redemption, purchase or other acquisition of any of its securities or any of
the securities of any subsidiary of CCMH.
SECTION 5.8. ABSENCE OF LITIGATION. Except as disclosed in CCMH SEC Reports,
(a) there is no claim of any kind, suit, action, proceeding, litigation,
arbitration, investigation or controversy affecting CCMH or any of its
subsidiaries pending or, to the knowledge of CCMH, threatened; and (b) neither
CCMH nor any of its subsidiaries is subject to any continuing order of, or
written agreement or memorandum of understanding with, or continuing material
investigation by, any governmental entity or authority, or any judgment, decree,
injunction, rule or order of any court, governmental department, commission,
agency, instrumentality or authority, or any arbitrator.
SECTION 5.9. REGISTRATION STATEMENT AND PROXY STATEMENT. None of the
information supplied or to be supplied by CCMH or its subsidiaries for inclusion
in (a) the Registration Statement, or (b) the Proxy Statement will, in the case
of the Proxy Statement or any amendments thereof or supplements thereto, at the
time of the mailing of the Proxy Statement and any amendments or supplements
11
thereto, at the time of the meetings of stockholders of CCMH to be held in
connection with the transactions contemplated by this Agreement, and at the
Effective Time, or, in the case of the Registration Statement, as amended or
supplemented, at the time it is declared effective by the SEC, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Registration Statement and Proxy Statement/Prospectus will comply in all
material respects as to form and substance with the requirements of the
Securities Act, the Exchange Act and the rules and regulations promulgated
thereunder, except that no representation is made by CCMH with respect to
information supplied by EChapman for inclusion therein.
SECTION 5.10. NO VIOLATION OF LAW. Except as disclosed in CCMH SEC Reports,
neither CCMH nor any of its subsidiaries is in violation of or has been given
notice or been charged with any violation of, any law, statute, order, rule,
regulation, ordinance or judgment including, without limitation, any applicable
environmental law, ordinance or regulation of any governmental or regulatory
body or authority, except for violations which, in the aggregate, could not
reasonably be expected to have a CCMH Material Adverse Effect. CCMH and its
subsidiaries have all permits, licenses, franchises, variances, exemptions,
orders and other governmental authorizations, consents and approvals necessary
to conduct their businesses as presently conducted (collectively, the "CCMH
Permits"), except for permits, licenses, franchises, variances, exemptions,
orders, authorizations, consents and approvals the absence of which, alone or in
the aggregate, would not have a CCMH Material Adverse Effect. CCMH and its
subsidiaries are not in violation of the terms of any CCMH Permit, except for
delays in filing reports or violations which, alone or in the aggregate, would
not have a CCMH Material Adverse Effect.
SECTION 5.11. COMPLIANCE WITH AGREEMENTS. Except as disclosed in CCMH SEC
Reports, CCMH and each of its subsidiaries are not in breach or violation of or
in default in the performance or observance of any term or provision of, and no
event has occurred which, with notice or lapse of time or action by a third
party, could result in a default under (a) the respective charters or By-laws of
CCMH or any of its subsidiaries; or (b) any contract, commitment, agreement,
indenture, mortgage, loan agreement, note, lease, bond, license, approval or
other instrument to which CCMH or any of its subsidiaries is a party or by which
any of them is bound or to which any of their property is subject, which
breaches, violations and defaults, would have, in the aggregate, a CCMH Material
Adverse Effect.
SECTION 5.12. TAXES. CCMH and its subsidiaries have (i) duly filed with the
appropriate governmental authorities all Tax Returns required to be filed by
them for all periods ending on or prior to the date hereof, and such Tax Returns
are true, correct and complete in all material respects, and (ii) duly paid in
full all Taxes due in connection with or with respect to the filing of such Tax
Returns and have paid all other Taxes as are due, except such as are being
contested in good faith by appropriate government proceedings and with respect
to which CCMH is maintaining reserves adequate for their payment. Neither the
IRS nor any other governmental entity or taxing authority or agency is now
asserting, either through audits, administrative proceedings, court proceedings
or otherwise, or, to the best of CCMH's knowledge, threatening to assert against
CCMH or any of its subsidiaries any deficiency or claim for additional Taxes.
Neither CCMH nor any of its subsidiaries has been granted any waiver of any
statute of limitations with respect to, or any extension of a period for the
assessment of, any Tax. There are no tax liens on any assets of CCMH or any of
its subsidiaries. Neither CCMH nor any of its subsidiaries has received a ruling
or entered into an agreement with the IRS or any other governmental entity or
taxing authority or agency that would have a CCMH Material Adverse Effect, taken
as a whole, after the Effective Time. The accruals and reserves for Taxes
reflected in the CCMH balance sheet reflected in the latest CCMH SEC Report are
adequate to cover all Taxes accruable through the date thereof (including Taxes
being contested) in accordance with generally accepted accounting principles. No
agreements relating to allocating or sharing of Taxes exist
12
among CCMH and its subsidiaries. Neither CCMH nor any of its subsidiaries is
required to include in income either (i) any material amount in respect of any
adjustment under Section 481 of the Code, or (ii) any material installment sale
gain. Neither CCMH nor any of its subsidiaries has made an election under
Section 341(f) of the Code.
SECTION 5.13. EMPLOYEE BENEFITS PLANS; ERISA.
(a) Neither CCMH nor its subsidiaries has any obligation to create any
material employee benefit plans, programs, arrangements and practices for
employees (such plans, programs, arrangements and practices of CCMH and its
subsidiaries being referred to as the "CCMH Plans"), including employee benefit
plans within the meaning set forth in Section 3(3) of ERISA, or other similar
material arrangements for the provision of benefits or to amend any such plan so
as to increase benefits thereunder, except as required under the terms of CCMH
Plans, under existing collective bargaining agreements or to comply with
applicable law.
(b) No member of CCMH's "controlled group," within the meaning of
Section 4001(a)(14) of ERISA, maintains or contributes to, or within the five
(5) years preceding the Effective Time has maintained or contributed to, an
employee pension benefit plan subject to Title IV of ERISA. None of the CCMH
Plans obligates CCMH or any of its subsidiaries to pay material separation,
severance, termination or similar-type benefits solely as a result of any
transaction contemplated by this Agreement or as a result of a "change in
control," within the meaning of such term under Section 280G of the Code. None
of CCMH Plans provides for or promises retiree medical, disability or life
insurance benefits to any current or former employee, officer or director of
CCMH or any of its subsidiaries except as otherwise required with respect to
health plan coverage in Section 4980B of the Code. Each of CCMH Plans is subject
only to the laws of the United States or a political subdivision thereof.
(c) Each CCMH Plan has been operated in all respects in accordance with the
requirements of all applicable laws and all persons who participate in the
operation of such CCMH Plans and all CCMH Plan "fiduciaries" (within the meaning
of Section 3(21) of ERISA) have acted in accordance with the provisions of all
applicable laws, except where violations of such applicable laws would not,
individually or in the aggregate, have a CCMH Material Adverse Effect, taken as
a whole. CCMH and its subsidiaries have performed all obligations required to be
performed by any of them under, are not in any respect in default under or in
violation of, and CCMH has no knowledge of any default or violation by any party
to, any CCMH Plan, except where such failures, defaults or violations would not,
individually or in the aggregate, have a CCMH Material Adverse Effect, taken as
a whole. No legal action, suit or claim is pending or, to the knowledge of CCMH,
threatened with respect to any CCMH Plan (other than claims for benefits in the
ordinary course) and, to the knowledge of CCMH, no fact or event exists that
could give rise to any such action, suit or claim. Neither CCMH nor any of its
subsidiaries has incurred any material liability to the Pension Benefit Guaranty
Corporation (other than premiums payable to the Pension Benefit Guaranty
Corporation in the ordinary course) or any material "withdrawal liability"
within the meaning of Section 4201 of ERISA.
(d) Each CCMH Plan that is intended to be qualified under Section 401(a) of
the Code or Section 401(k) of the Code has received a favorable determination
letter from the IRS that it is so qualified, and each trust established in
connection with any CCMH Plan that is intended to be exempt from federal income
taxation under Section 501(a) of the Code is so exempt, and, to the knowledge of
CCMH, no fact or event has occurred since the date of such determination letter
from the IRS to adversely affect the qualified status of any such CCMH Plan or
the exempt status of any such trust. No trust maintained or contributed to by
CCMH or any of its subsidiaries is intended to be qualified as a voluntary
employees' beneficiary association or is intended to be exempt from federal
income taxation under Section 501(c)(9) of the Code.
(e) To CCMH's knowledge, there has been no non-exempt prohibited transaction
(within the meaning of Section 406 of ERISA or Section 4975 of the Code) with
respect to any CCMH Plan.
13
CCMH and each of its subsidiaries has not incurred any liability for any excise
tax arising under Section 4972 or 4980B of the Code and, to the knowledge of
CCMH, no fact or event exists that could give rise to any such liability except
for liability which singly or in the aggregate could not reasonably be expected
to cause a CCMH Material Adverse Effect.
(f) All contributions, premiums or payments required to be made with respect
to any CCMH Plan have been made on or before their due dates.
(g) The CCMH Minute Book sets forth a true and complete list of each current
or former employee, officer or director of CCMH or any of its subsidiaries who
holds any option to purchase CCMH Common Stock as of the date of this Agreement,
together with the number of shares of CCMH Common Stock subject to such option,
the date of grant of such option, the option price of such option, whether such
option is intended to qualify as an incentive stock option within the meaning of
Section 422(b) of the Code (an "ISO") and the expiration date of such option.
The CCMH Minute Book also sets forth the total number of such ISOs and such
non-qualified options.
(h) Neither CCMH nor any of its subsidiaries is a party to any employment,
severance, consulting or other similar contracts with any employees, officers or
directors of CCMH or any of its subsidiaries other than such contracts that are
disclosed in CCMH SEC Reports. Neither CCMH nor any of its subsidiaries is a
party to any collective bargaining agreements.
SECTION 5.14. LABOR CONTROVERSIES. Except as set forth in the CCMH SEC
Reports, (a) there are no material controversies pending or, to the knowledge of
CCMH, threatened between CCMH or its subsidiaries and any representatives of any
of their employees; (b) to the knowledge of CCMH, there are no material
organizational efforts presently being made or threatened involving any of the
presently unorganized employees of CCMH or its subsidiaries; (c) CCMH and its
subsidiaries have, to the knowledge of CCMH, complied in all material respects
with all laws relating to the employment of labor, including, without
limitation, any provisions thereof relating to wages, hours, collective
bargaining, civil rights, administration of leave and rights under the
Consolidated Omnibus Budget Reconciliation Act of 1985 and the payment of social
security and similar taxes; and (d) no person has, to the knowledge of CCMH,
asserted that CCMH or any of its subsidiaries is liable in any material amount
for any arrears of wages or any taxes or penalties for failure to comply with
any of the foregoing, except for such controversies, organizational efforts,
non-compliance and liabilities which, singly or in the aggregate, could not
reasonably be expected to cause a CCMH Material Adverse Effect.
SECTION 5.15. TITLE TO ASSETS. CCMH and each of its subsidiaries has good
and marketable title to all their respective properties and assets, real and
personal, free and clear of all mortgages, liens, pledges, charges or
encumbrances of any nature whatsoever, except (a) liens for Taxes not yet due
and payable; (b) such imperfections in title and easements and encumbrances, if
any, as are not material in character, amount or extent and do not materially
and adversely affect the value or interfere with the present use of the property
subject thereto or affected thereby, or otherwise materially impair CCMH's
present business operations; (c) as disclosed in CCMH SEC Reports; or
(d) mortgages incurred in the ordinary course of business, and except for such
matters which, singly or in the aggregate, could not reasonably be expected to
cause a CCMH Material Adverse Effect. All leases under which CCMH leases any
material real or personal property are in good standing, valid and effective in
accordance with their respective terms, and there is not, under any of such
leases, any existing default or event which with notice or lapse of time or both
would become a default other than defaults under such leases which in the
aggregate will not have a CCMH Material Adverse Effect.
SECTION 5.16. CCMH STOCKHOLDERS' APPROVAL. The affirmative vote of the
holders of a majority of the outstanding shares of CCMH Common Stock entitled to
vote is necessary to approve the transactions contemplated by this Agreement.
14
SECTION 5.17. TRADEMARKS AND INTELLECTUAL PROPERTY COMPLIANCE. CCMH and its
subsidiaries own or have the right to use all of their Intellectual Property
Rights without any conflict with the rights of others, except for such conflicts
that have not had and are not reasonably likely to have a CCMH Material Adverse
Effect, and the consummation of the transactions contemplated hereby will not
alter or impair such rights in any material respect. To the knowledge of CCMH,
no claims are pending by any person with respect to the ownership, validity,
enforceability or use of any such Intellectual Property Rights challenging or
questioning the validity or effectiveness of any of the foregoing which claims
could reasonably be expected to have a CCMH Material Adverse Effect. To CCMH's
knowledge, none of it or its subsidiaries' key technical personnel is in
violation of any term of any employment agreement, patent disclosure agreement
or any other contract or agreement relating to the relationship of any such
employee with it or its subsidiaries or any other party the result of which has
had or is reasonably likely to have a CCMH Material Adverse Effect.
SECTION 5.18. MATERIAL AGREEMENTS. CCMH has no material agreements other
than those filed as exhibits to CCMH SEC Reports or which will be filed with the
Registration Statement except for Support Agreement between CCMH and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇., dated November 12, 1999.
SECTION 5.19. INSURANCE. Except to the extent there would be no CCMH
Material Adverse Effect, to CCMH's knowledge, all of CCMH's and its
subsidiaries' liability, theft, life, health, fire, title, worker's compensation
and other forms of insurance, surety bonds and umbrella policies, insuring CCMH
and its subsidiaries and their directors, officers, employees, independent
contractors, properties, assets and businesses, are valid and in full force and
effect (without any premium past due or pending notice of cancellation) and are,
in the reasonable judgment of CCMH, adequate for the business of CCMH and its
subsidiaries as now conducted, and there are no claims, singly or in the
aggregate, in excess of the limitations of coverage set forth in such policies.
The provision and/or reserves in CCMH Financial Statements are adequate for any
and all self insurance programs maintained by CCMH or its subsidiaries.
SECTION 5.20. BROKERS AND FINDERS. Neither CCMH nor any of its officers,
directors or employees has employed any broker or finder or incurred any
liability for any brokerage fees, commissions or finder's fees in connection
with the transactions contemplated hereby, except that CCMH has retained ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Gull as its financial advisor.
SECTION 5.21. CERTAIN TRANSACTIONS. Except as set forth in the CCMH SEC
Reports, since December 31, 1998, none of the officers or directors of CCMH or
of any of its subsidiaries, and, to CCMH's knowledge, none of their employees or
the employees of any of its subsidiaries is a party to any transaction with it
or any of its subsidiaries (other than for services as an employee, officer or
director and other than transactions between it and one or more of its direct or
indirect wholly owned subsidiaries or between such subsidiaries), including
without limitation, any contract, agreement or other arrangement (i) providing
for the furnishing of services to or by, (ii) providing for rental of real or
personal property to or from, or (iii) otherwise requiring payments to or from,
any such officer, director, affiliate or employee, any member of the family of
any such officer, director or employee or any corporation, partnership, trust or
other entity in which any such officer, director or employee has a substantial
interest or which is an affiliate of such officer, director or employee (a "CCMH
Affiliated Transaction") other than transactions which would not have a CCMH
Material Adverse Effect.
SECTION 5.22. OPINION OF FINANCIAL ADVISOR. CCMH received the opinion of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Gull, its financial advisor, dated November 11, 1999, to
the effect that, as of such date, the transactions contemplated hereby are fair
to its stockholders from a financial point of view.
SECTION 5.23. ANTI-TAKEOVER STATUTES The provisions of Section 3-601 et seq.
(Special Voting Requirements) and Section 3-701 et seq. (Voting Rights of
Certain Control Shares) of the MGCL do not apply with respect to CCMH in
connection with the transactions contemplated by this Agreement.
15
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 6.1. CONDUCT OF BUSINESS BY CCMH PENDING THE MERGER. Except as
otherwise contemplated by this Agreement, after the date hereof and prior to the
Closing Date or earlier termination of this Agreement, unless EChapman shall
otherwise agree in writing, CCMH shall, and shall cause its subsidiaries to:
(a) conduct their respective businesses in the ordinary and usual course of
business and consistent with past practice;
(b) not, except as necessary to consummate the transactions contemplated
hereby, (i) amend or propose to amend their respective charters or By-laws,
(ii) split, combine or reclassify their outstanding capital stock, or
(iii) declare, set aside or pay any dividend or distribution payable in cash,
stock, property or otherwise, except for the payment of dividends or
distributions by a wholly owned subsidiary of CCMH;
(c) not issue, sell, pledge or dispose of, or agree to issue, sell, pledge
or dispose of or otherwise cause to become outstanding, any additional shares
of, or any options, warrants or rights of any kind to acquire any shares of
their capital stock of any class or any debt or equity securities convertible
into or exchangeable for such capital stock, except that CCMH may issue shares
upon the exercise of CCMH Options outstanding on the date hereof;
(d) not (i) incur or become contingently liable with respect to any material
indebtedness for borrowed money other than (x) borrowings in the ordinary course
of business not to exceed $100,000 or in other cases for amounts in excess of
$100,000 which shall be on terms reasonably acceptable to EChapman, or
(y) borrowings to refinance existing indebtedness, in the ordinary course of
business, (ii) redeem, purchase, acquire or offer to purchase or acquire any
shares of its capital stock or any options, warrants or rights to acquire any of
its capital stock or any security convertible into or exchangeable for its
capital stock, (iii) take or fail to take any action which action or failure
would cause CCMH or its stockholders (except to the extent that any stockholders
receive cash in lieu of fractional shares) to recognize gain or loss for federal
income tax purposes as a result of the consummation of the Merger, (iv) make any
acquisition of any assets or businesses and expenditures for fixed or capital
(in each case, after consultation with EChapman) or expenditures in the ordinary
course of business which, in such cases of $100,000 or more, shall be on terms
reasonably acceptable to EChapman, (v) sell, pledge, dispose of or encumber any
assets or businesses other than sales in the ordinary course of business which,
in such cases involving $100,000 or more, shall be on terms reasonably
acceptable to EChapman, or (vi) enter into any contract, agreement, commitment
or arrangement with respect to any of the foregoing;
(e) use all commercially reasonable efforts to preserve intact their
respective business organizations and goodwill, keep available the services of
their respective present officers and key employees, and preserve the goodwill
and business relationships with customers, vendors and others having business
relationships with them and not engage in any action, directly or indirectly,
with the intent to adversely impact the transactions contemplated by this
Agreement;
(f) confer on a regular and frequent basis with one or more representatives
of EChapman to report operational matters of materiality and the general status
of ongoing operations;
(g) not enter into or amend any employment, severance, special pay
arrangement with respect to termination of employment or other similar
arrangements or agreements with any directors, officers or key employees except
in the ordinary course and consistent with past practice which shall be on terms
acceptable to EChapman;
16
(h) not adopt, enter into or amend any bonus, profit sharing, compensation,
stock option, pension, retirement, deferred compensation, health care,
employment or other employee benefit plan, agreement, trust, fund or arrangement
for the benefit or welfare of any employee or retiree except as required to
comply with changes in applicable law and increases in wages in the ordinary
course and consistent with past practice for non-executive employees which, in
such cases involving $25,000 or more, shall be on terms acceptable to EChapman;
(i) maintain with adequately capitalized insurance companies insurance
coverage for its assets and its businesses in such amounts and against such
risks and losses as are consistent with past practice; and
(j) not enter into any arrangement or transaction of the type described in
Section 5.21.
SECTION 6.2. CONDUCT OF BUSINESS BY ECHAPMAN PENDING THE MERGER. Except as
otherwise contemplated by this Agreement, after the date hereof and prior to the
Closing Date or earlier termination of this Agreement, unless CCMH shall
otherwise agree in writing, EChapman shall, and shall cause Merger Subsidiary,
to:
(a) conduct their respective businesses in the ordinary and usual course of
business and consistent with past practice;
(b) not, except as necessary to consummate the transactions contemplated
hereby, (i) amend or propose to amend their respective charters or By-laws,
(ii) split, combine or reclassify their outstanding capital stock, or
(iii) declare, set aside or pay any dividend or distribution payable in cash,
stock, property or otherwise, except for the payment of dividends or
distributions by a subsidiary of EChapman and except for cash dividends in
historic amounts payable in a manner consistent with past practices;
(c) use all commercially reasonable efforts to preserve intact their
respective business organizations and goodwill, keep available the services of
their respective present officers and key employees and preserve the goodwill
and business relationships with customers and others having business
relationships with them and not engage in any action, directly or indirectly,
with the intent to adversely impact the transactions contemplated by this
Agreement;
(d) confer on a regular and frequent basis with one or more representatives
of CCMH to report operational matters of materiality and the general status of
ongoing operations;
(e) not enter into any arrangement or transaction of the type described in
Section 5.21.
SECTION 6.3. CONTROL OF CCMH'S OPERATIONS. Nothing contained in this
Agreement shall give to EChapman, directly or indirectly, rights to control or
direct CCMH's operations prior to the Effective Time. Prior to the Effective
Time, CCMH shall exercise, consistent with and subject to the terms and
conditions of this Agreement, complete control and supervision of its
operations.
SECTION 6.4. CONTROL OF ECHAPMAN'S OPERATIONS. Nothing contained in this
Agreement shall give to CCMH, directly or indirectly, rights to control or
direct EChapman's operations prior to the Effective Time. Prior to the Effective
Time, EChapman shall exercise, consistent with and subject to the terms and
conditions of this Agreement, complete control and supervision of its
operations.
SECTION 6.5. ACQUISITION TRANSACTIONS.
(a) After the date hereof and prior to the Effective Time or earlier
termination of this Agreement, CCMH shall not, and shall not permit any of its
subsidiaries to, (i) initiate, solicit or seek, directly or indirectly, any
inquiries or the making or implementation of any proposal or offer (including,
without limitation, any proposal or offer to its stockholders) to acquire all or
any substantial part of the business and properties of CCMH and its subsidiaries
or more than fifty percent (50%) of the capital stock of CCMH and its
subsidiaries, whether by merger, purchase of assets, tender offer or otherwise,
whether for cash, securities or any other consideration or combination thereof
except for the
17
transaction contemplated herein (any such transactions being referred to herein
as "Acquisition Transactions"), or (ii) otherwise cooperate in any effort or
attempt to initiate, solicit or seek an Acquisition Transaction.
(b) Notwithstanding any other provision of this Agreement, in response to an
unsolicited proposal or inquiry (or a proposal or inquiry arising from a general
solicitation) with respect to an Acquisition Transaction and subject to the
duties of CCMH's Board of Directors under applicable law, if such Acquisition
Transaction is a tender offer subject to the provisions of Section 14(d) under
the Exchange Act, CCMH's Board of Directors may take and disclose to CCMH's
stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act.
(c) In the event CCMH shall receive any offer of an Acquisition Transaction,
it shall (i) immediately inform EChapman of such offer, and (ii) furnish to
EChapman the identity of the proponent of such offer and, unless the Board of
Directors of CCMH concludes that such disclosure is inconsistent with its duties
under applicable law, a description of the material terms thereof.
(d) CCMH may terminate this Agreement, withdraw, modify or not make its
recommendations referred to in Section 7.2, and enter into a definitive
agreement for an Acquisition Transaction if, but only if, (i) the Board of
Directors of CCMH shall have consulted with legal counsel concerning its
obligations under applicable law and (ii) CCMH shall have determined in good
faith after consultation with the independent financial advisors of CCMH that
such Acquisition Transaction would be more favorable to CCMH's stockholders from
a financial point of view than the Merger, and (iii) the Board of Directors of
CCMH shall conclude in good faith that such action is necessary in order for the
Board of Directors of CCMH to act in a manner that is consistent with its
obligations under applicable law.
18
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.1. ACCESS TO INFORMATION. From and after the date hereof, each
party shall furnish promptly to one another a copy of each report and other
document filed or received by any of them pursuant to the requirements of
federal or state securities laws or which may have a material effect on their
respective businesses, properties or personnel, and work papers of their
respective accountants and other information or copies of such documentation and
access to senior management personnel as reasonably deemed necessary by the
requesting party's respective accountants, legal counsel or financial advisors
to complete the Proxy Statement/Prospectus and Registration Statement, and the
opinion referred to in Section 8.2(d) below. EChapman and its subsidiaries shall
hold and shall use their commercially reasonable efforts to cause EChapman's
representatives to hold, and CCMH and its subsidiaries shall hold and shall use
their commercially reasonable efforts to cause CCMH's representatives to hold,
in strict confidence all non-public documents and information furnished to
EChapman and Merger Subsidiary or to CCMH, as the case may be, in connection
with the transactions contemplated by this Agreement. Notwithstanding the
foregoing (i) EChapman and CCMH may disclose such information as may be
necessary in connection with seeking EChapman Required Statutory Approvals, CCMH
Required Statutory Approvals and CCMH Stockholders' Approval (as defined in
Section 7.2 below), and (ii) each of EChapman, Merger Subsidiary and CCMH may
disclose any information that it is required by law or judicial or
administrative order to disclose.
SECTION 7.2. STOCKHOLDERS' APPROVAL. Subject to the duties of the Board of
Directors of CCMH under applicable law, CCMH shall, as promptly as practicable,
submit the transactions contemplated hereby for the approval of its stockholders
at a meeting of stockholders and, subject to the duties of the Board of
Directors of CCMH under applicable law, shall use its commercially reasonable
efforts to obtain stockholder approval and adoption (the "CCMH Stockholders'
Approval") of this Agreement and the transactions contemplated hereby. Such
meeting of the stockholders shall be held as soon as practicable following the
date upon which the Registration Statement becomes effective. CCMH shall,
through its Board of Directors, but subject to the duties of the members thereof
under applicable law, recommend to its stockholders approval of the transactions
contemplated by this Agreement. CCMH acknowledges and agrees: (i) that a breach
of its covenant contained in this Section 7.2 to convene a meeting of its
stockholders and call for a vote with respect to the approval of this Agreement
and the Merger will result in irreparable harm to EChapman which will not be
compensable in money damages, and (ii) that such covenant shall be specifically
enforceable and that specific performance and injunctive relief shall be a
remedy properly available to EChapman for a breach of such covenant.
SECTION 7.3. AFFILIATES OF CCMH. Within 30 days after the date of this
Agreement: (i) CCMH shall deliver to EChapman a letter identifying all persons
who may be deemed affiliates of CCMH under Rule 145 of the Securities Act
("Rule 145"), including, without limitation, all directors and executive
officers of CCMH; (ii) CCMH shall advise the persons identified in such letter
of the resale restrictions imposed by applicable securities laws; (iii) the
persons identified in such letter shall each execute a Memorandum to Persons
Deemed to be Affiliated Persons of ▇▇▇▇▇▇▇ Capital Management Holdings, Inc. in
such form as is acceptable to EChapman (the "145 Memorandum"); and
(iv) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. shall execute a Support Agreement in such form as is
acceptable to EChapman (the 145 Memorandum and the Support Agreement are
collectively referred to herein as the "Affiliate Agreements").
SECTION 7.4. EXPENSES AND FEES. Each party hereto agrees to bear its own
expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement, except:
(a) CCMH shall pay and be responsible for all fees and expenses incurred in
connection with the printing, filing and mailing of the Proxy
Statement/Prospectus; and
19
(b) If CCMH (i) fails to fulfill its obligations as set forth in
Section 6.5(a)-(c) or (ii) terminates this Agreement pursuant to
Section 6.5(d), CCMH shall pay to EChapman the sum of $3.0 million in lieu of
any other payments or penalties or the reimbursement of expenses incurred by
EChapman.
SECTION 7.5. AGREEMENT TO COOPERATE.
(a) Subject to the terms and conditions herein provided, each of the parties
hereto shall use all commercially reasonable efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable pursuant to all agreements, contracts, indentures or other
instruments to which the parties hereto are a party, or under any applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement, including using its commercially reasonable
efforts to (i) obtain all necessary or appropriate waivers, consents and
approvals from lenders, landlords, security holders or other parties whose
waiver, consent or approval is required to consummate the Merger, (ii) effect
all necessary registrations, filings and submissions, and (iii) lift any
injunction or other legal bar to the Merger (and, in such case, to proceed with
the Merger as expeditiously as possible).
(b) In the event any litigation is commenced by any person or entity
relating to the transactions contemplated by this Agreement, including any
Acquisition Transaction, EChapman shall have the right, at its own expense, to
participate therein, and CCMH will not settle any such litigation without the
consent of EChapman, which consent will not be unreasonably withheld.
SECTION 7.6. PUBLIC STATEMENTS. The parties (i) shall consult with each
other prior to issuing any press release or any written public statement with
respect to this Agreement or the transactions contemplated hereby, and
(ii) shall not issue any such press release or written public statement prior to
such consultation, except as may be required by law and applicable listing
requirements.
SECTION 7.7. NOTIFICATION OF CERTAIN MATTERS. Each of CCMH, EChapman and
Merger Subsidiary agrees to give prompt notice to each other of, and to use
their respective commercially reasonable efforts to prevent or promptly remedy
(i) the occurrence or failure to occur or the impending or threatened occurrence
or failure to occur, of any event which occurrence or failure to occur would be
likely to cause any of its representations or warranties in this Agreement to be
untrue or inaccurate in any material respect at any time from the date hereof to
the Effective Time, and (ii) any material failure on its part to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied by
it hereunder; provided, however, that the delivery of any notice pursuant to
this Section 7.7 shall not limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
SECTION 7.8. PROXY STATEMENT/PROSPECTUS AND REGISTRATION STATEMENT.
(a) As promptly as practicable after the execution of this Agreement,
EChapman and CCMH shall prepare and file with the SEC a Proxy
Statement/Prospectus and Registration Statement on Form S-4 relating to the
approval of the Merger by the stockholders of CCMH and shall use all
commercially reasonable efforts to cause the Registration Statement to become
effective as soon thereafter as practicable.
(b) Prior to the date of approval of the Merger by CCMH's stockholders, each
of CCMH, EChapman and Merger Subsidiary shall correct promptly any information
provided by it to be used specifically in the Proxy Statement/Prospectus and
Registration Statement that shall have become false or misleading in any
material respect and shall take all steps necessary to file with the SEC and
have declared effective or cleared by the SEC any amendment or supplement to the
Proxy Statement/ Prospectus or the Registration Statement so as to correct the
same and to cause the Proxy Statement/ Prospectus as so corrected to be
disseminated to the stockholders of CCMH and EChapman, in each case to the
extent required by applicable law.
20
SECTION 7.9. TAX-FREE TREATMENT OF MERGER. EChapman and CCMH shall each use
its commercially reasonable efforts to cause the Merger to be treated as a
tax-free reorganization for federal, state and foreign income tax purposes and
agree that this Agreement shall serve as the Plan of Reorganization therefor.
SECTION 7.10. DIRECTORS' AND OFFICERS' INDEMNIFICATION.
(a) The Surviving Corporation shall maintain in full force and observe any
liability, exculpation or indemnification provision (including payment or
advance of expenses) now existing in the Charter or By-laws of CCMH for the
benefit of any individual who served as a director or officer of CCMH at any
time prior to the Effective Time.
(b) For a period of six years from and after the Effective Time, the
Surviving Corporation and EChapman shall indemnify, defend and hold harmless
each individual who served as a director, or officer of CCMH or any of its
subsidiaries (the "Indemnified Parties") at any time prior to the Effective
Time from and against (i) all losses, claims, damages, costs, expenses,
liabilities or judgments or amounts that are paid in settlement with the
approval of the indemnifying party which approval shall not be unreasonably
withheld (net of any insurance proceeds obtained by the Indemnified Parties)
of or in connection with any claim, action, suit, proceeding or investigation
based in whole or in part on or arising in whole or in part out of the fact
that such person is or was a director or officer of the Company or any of its
subsidiaries, whether pertaining to any matter existing or occurring at or
prior to the Effective Time and whether asserted or claimed prior to, or at
or after the Effective Time ("Indemnified Liabilities") and (ii) all
Indemnified Liabilities based in whole or in part on, or arising in whole or
in part out of, or pertaining to this Agreement or the transactions
contemplated hereby, in each case to the full extent a corporation is
permitted under the MGCL to indemnify its own directors and officers, as the
case may be (and the Surviving Corporation and EChapman will pay expenses in
advance of the final disposition of any such action or proceeding to each
Indemnified Party to the full extent permitted by law). Without limiting the
foregoing, in the event that any such claim, action, suit, proceeding or
investigation is brought against any Indemnified Party (whether arising
before or after the Effective Time), (x) the Indemnified Parties may retain
counsel satisfactory to them (or them and the Surviving Corporation and
EChapman after the Effective Time), (y) CCMH (or after the Effective Time,
the Surviving Corporation and EChapman) shall pay all reasonable fees and
expenses of such counsel for the Indemnified Parties promptly as statements
therefor are received, and (z) the Company (or after the Effective Time, the
Surviving Corporation and EChapman) will use all commercially reasonable
efforts to assist in the vigorous defense of any such matter, provided that
neither CCMH nor the Surviving Corporation or EChapman shall be liable for
any settlement of any claim effected without their written consent, which
consent, however, shall not be unreasonably withheld. Any Indemnified Party
wishing to claim indemnification under this Section 7.10, upon learning of
any such claim, action, suit, proceeding or investigation, shall notify the
CCMH or, after the Effective Time, the Surviving Corporation or EChapman (but
the failure so to notify an Indemnifying Party shall not relieve it from any
liability which it may have under this Section 7.10 except to the extent such
failure prejudices such party). The Indemnified Parties as a group may retain
only one law firm to represent them with respect to each such matter unless
there is, under applicable standards of professional conduct, a conflict on
any significant issue between the positions of any two or more Indemnified
Parties.
(c) The provisions of this Section 7.10 are intended to be for the benefit
of, and shall be enforceable by, each Indemnified Party, and his or her heirs
and representatives.
SECTION 7.11. AMENDMENT TO CHI MERGER AGREEMENT. Without the consent of
CCMH, EChapman will not consent to any material amendment to the CHI Merger
Agreement.
21
ARTICLE VIII
CONDITIONS
SECTION 8.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
Unless waived by the parties, the respective obligations of each party to effect
the Merger shall be subject to the fulfillment at or prior to the Closing Date
of the following conditions:
(a) this Agreement and the transactions contemplated hereby, as appropriate,
shall have been approved and adopted by the requisite vote of the stockholders
of CCMH under applicable law and applicable listing requirements;
(b) the Registration Statement shall have been declared effective by the SEC
in accordance with the provisions of the Securities Act, and no stop order
suspending such effectiveness shall have been issued by the SEC and remain in
effect and no proceedings for that purpose shall, on or prior to the Effective
Time, have been instituted or, to the knowledge of EChapman or CCMH, threatened
by the SEC.
(c) no preliminary or permanent injunction or other order or decree by any
federal or state court which prevents the consummation of the Merger shall have
been issued and remain in effect (each party agreeing to use its commercially
reasonable efforts to have any such injunction, order or decree lifted);
(d) no action shall have been taken, and no statute, rule or regulation
shall have been enacted, by any state or federal government or governmental
agency which would prevent the consummation of the Merger or make the
consummation of the Merger illegal;
(e) all material governmental waivers, consents, orders and approvals,
legally required for the consummation of the Merger and the transactions
contemplated hereby shall have been obtained and be in effect at the Effective
Time;
(f) EChapman shall have completed a public offering (pursuant to an
effective registration statement under the Securities Act of 1933, as then in
effect, or any comparable statement under any similar federal statute then in
force) of EChapman Shares in which (i) EChapman receives gross proceeds of no
less than Twenty Million dollars ($20,000,000), and (ii) the price paid by the
public for such shares reflects a preoffering valuation of EChapman of no less
than Eighty Million Dollars ($80,000,000.00) (the "EChapman Public Offering");
and
(g) The transactions contemplated by the CHI Merger Agreement shall have
closed; and
(h) CCMH shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Gull an updated
opinion reasonably acceptable to CCMH, dated as of the date on or about which
the Proxy Statement/Prospectus is first distributed to the stockholders of CCMH,
to the effect that the consideration to be received by the stockholders of CCMH
in the Merger is fair, from a financial point of view, to the holders of CCMH
Common Stock, and such opinion shall not have been withdrawn as of the Closing
Date; and
SECTION 8.2. ADDITIONAL CONDITIONS TO OBLIGATION OF CCMH TO EFFECT THE
MERGER. Unless waived by CCMH, the obligation of CCMH to effect the Merger shall
be subject to the fulfillment on or prior to the Closing Date of the following
additional conditions:
(a) EChapman and Merger Subsidiary shall have performed in all material
respects their agreements contained in this Agreement required to be performed
on or prior to the Closing Date and the representations and warranties of
EChapman and Merger Subsidiary contained in this Agreement shall be true and
correct in all material respects (except that where any statement in a
representation or warranty expressly includes a standard of materiality, such
statement shall be true and correct in all respects) on and as of the date made
and on and as of the Closing Date, except for those representations and
warranties which address matters only as of a particular date (which shall
remain
22
true and correct as of such date), as if made at and as of such date, and CCMH
shall have received a Certificate of the Chairman of the Board and the President
of EChapman and Merger Subsidiary to that effect;
(b) ▇▇▇▇▇▇▇ Holdings, Inc. and CHI Merger Subsidiary, Inc. shall have
performed in all material respects their agreements contained in the CHI Merger
Agreement required to be performed on or prior to the Closing Date and the
representations and warranties of ▇▇▇▇▇▇▇ Holdings, Inc. and CHI Merger
Subsidiary, Inc. contained in the CHI Merger Agreement shall be true and correct
in all material respects (except that where any statement in a representation or
warranty expressly includes a standard of materiality, such statement shall be
true and correct in all respects) on and as of the date made and on and as of
the Closing Date, except for those representations and warranties which address
matters only as of a particular date (which shall remain true and correct as of
such date), as if made at and as of such date, and CCMH shall have received a
Certificate of the Chairman of the Board and the President of EChapman to that
effect;
(c) from the date hereof to the Closing Date, there shall have been no
changes that constitute, and no event or events shall have occurred which have
resulted in or constitute, an EChapman Material Adverse Effect, taken as a
whole; and
(d) CCMH shall have received an opinion from the law firm of ▇▇▇▇▇▇▇,
Baetjer and ▇▇▇▇▇▇, LLP, dated the Closing Date, to the effect that the Merger
should be treated as a tax-free reorganization for federal and state income tax
purposes.
SECTION 8.3. ADDITIONAL CONDITIONS TO OBLIGATIONS OF EChapman and Merger
Subsidiary to Effect the Merger. Unless waived by EChapman and Merger
Subsidiary, the obligations of EChapman and Merger Subsidiary to effect the
Merger shall be subject to the fulfillment at or prior to the Closing Date of
the additional following conditions:
(a) CCMH shall have performed in all material respects its agreements
contained in this Agreement required to be performed on or prior to the Closing
Date and the representations and warranties of CCMH contained in this Agreement
shall be true and correct in all material respects (except that where any
statement in a representation or warranty expressly includes a standard of
materiality, such statement shall be true and correct in all respects) on and as
of the date made and on and as of the Closing Date, except for those
representations and warranties which address matters only as of a particular
date (which shall remain true and correct as of such date), as if made at and as
of such date, and EChapman shall have received a Certificate of the Chairman of
the Board and President of CCMH to that effect;
(b) the Affiliate Agreements required to be delivered to EChapman pursuant
to Section 7.3 shall have been furnished as required by Section 7.3; and
(c) from the date hereof to the Closing Date, there shall have been no
changes that constitute, and no event or events shall have occurred which have
resulted in or constitute, a CCMH Material Adverse Effect, taken as a whole.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1. TERMINATION. This Agreement may be terminated by the mutual
consent of the parties, or at any time prior to the Closing Date, whether before
or after approval of the matters presented in connection with the Merger by the
stockholders of CCMH, as follows:
(a) CCMH shall have the right to terminate this Agreement;
23
(i) if the Merger is not completed by June 30, 2000 other than on
account of delay or default on the part of CCMH;
(ii) if the Merger or the transactions set forth in the CHI Merger
Agreement are enjoined by a final, unappealable court order not entered at
the request or with the support of CCMH or any of their affiliates or
associates;
(iii) if the terms and conditions of Section 6.5(d) and Section 7.4(b)
are satisfied; or
(iv) if CCMH's stockholders' vote is not sufficient to approve the
transactions contemplated by this Agreement.
(b) EChapman shall have the right to terminate this Agreement;
(i) if the Merger is not completed by June 30, 2000 other than on
account of delay or default on the part of EChapman;
(ii) if the Merger or the transactions set forth in the CHI Merger
Agreement are enjoined by a final, unappealable court order; or
(iii) if CCMH's stockholders' vote is not sufficient to approve the
transactions contemplated by this Agreement.
SECTION 9.2. EFFECT OF TERMINATION. In the event of termination of this
Agreement by either EChapman or CCMH as provided in Section 9.1, this Agreement
shall forthwith become void and there shall be no further obligation on the part
of CCMH, EChapman, Merger Subsidiary, or their respective officers or directors
(except as set forth in this Section 9.2 and in Sections 7.1, 7.4 and 7.6, all
of which shall survive the termination). Nothing in this Section 9.2 shall
relieve any party from liability for any breach of this Agreement.
SECTION 9.3. AMENDMENT. This Agreement may not be amended except by action
taken by the parties' respective Boards of Directors or duly authorized
committees thereof and then only by an instrument in writing signed on behalf of
each of the parties hereto and in compliance with applicable law.
SECTION 9.4. WAIVER. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant thereto, and (c) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall not be deemed to
be continuing or to apply to any future obligation or requirement of any part
hereto provided herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid if set forth in an instrument in writing
signed on behalf of such party.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.1. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES.The
representations and warranties contained in Articles IV and V of this Agreement
shall not survive the Merger, and after effectiveness of the Merger, CCMH,
EChapman, Merger Subsidiary or their respective officers or directors shall have
no further obligation with respect thereto. The covenants and agreements set
forth in this Agreement shall survive the Merger.
SECTION 10.2. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally, mailed by
registered or certified mail (return receipt
24
requested) or sent via facsimile to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
(a) If to EChapman or Merger Subsidiary to:
▇▇▇▇▇▇▇▇.▇▇▇, Inc.
World Trade Center--Baltimore
28(th) Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
with a copy to:
▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, LLP
Suite 1800
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(b) If to CCMH, to:
▇▇▇▇▇▇▇ Capital Management Holdings, Inc.
World Trade Center--Baltimore
28(th) Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Esq.
SECTION 10.3. INTERPRETATION. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. In this Agreement, unless a contrary intention
appears (i) the words "herein," "hereof" and "hereunder" and other words of
similar impact refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision, and (ii) reference to any Article or
Section means such Article or Section hereof. No provision of this Agreement
shall be interpreted or construed against any party hereto solely because such
party or its legal representative drafted such provision.
SECTION 10.4. MISCELLANEOUS. This Agreement (including the documents and
instruments referred to herein) (a) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof,
(b) is not intended to confer upon any other person any rights or remedies
hereunder except for rights of indemnified parties under Section 7.10, and
(c) shall not be assigned by operation of law or otherwise. THIS AGREEMENT SHALL
BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY
THE LAWS OF THE STATE OF
25
MARYLAND APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH
STATE.
SECTION 10.5. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement. Each of the parties agrees to
accept and be bound by facsimile signatures hereto.
SECTION 10.6. PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
SECTION 10.7. EXHIBITS AND SCHEDULES. All Exhibits and Schedules referred to
in this Agreement shall be attached hereto and are incorporated by reference
herein.
SECTION 10.8. SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, and parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 10.9. DEFINITION OF KNOWLEDGE. For those warranties and
representations set forth in Article IV which are subject to the qualification
"to EChapman's knowledge," EChapman will be deemed to have knowledge of a matter
if (i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. has knowledge of the matter, or (ii) such matter
has come, or should reasonably be expected to have come, to the attention of
such individual if such individual had conducted a reasonable due diligence
review of EChapman's operations and business, including, without limitation,
reasonable inquiries to key personnel of EChapman regarding the business and
operations of EChapman and a review of, and discussion with key personnel
regarding, pertinent books and records of EChapman. For those warranties and
representations set forth in Article V which are subject to the qualification
"to CCMH's knowledge," CCMH will be deemed to have knowledge of a matter if
(i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. has knowledge of the matter, or (ii) such matter has
come, or should reasonably be expected to have come, to the attention of any of
such individual if such individual had conducted a reasonable due diligence
review of CCMH's operations and business, including, without limitation,
reasonable inquiries to key personnel of CCMH regarding the business and
operations of CCMH and a review of, and discussion with key personnel regarding,
pertinent books and records of CCMH.
26
IN WITNESS WHEREOF, EChapman, Merger Subsidiary and CCMH have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
CHAIRMAN OF THE BOARD AND PRESIDENT
CCMH MERGER SUBSIDIARY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
PRESIDENT
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT
HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
CHAIRMAN OF THE BOARD AND PRESIDENT
27