PURCHASE AGREEMENT
between
BANK ONE CORPORATION,
as Seller,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC.,
as Buyer
April 14, 1999
PURCHASE AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Defined Terms 1
1.2 Other Defined Terms 4
ARTICLE II
PURCHASE AND SALE OF STOCK
2.1 Purchase and Sale 6
2.2 Purchase Price 6
2.3 Assumed Obligations of the ▇▇▇▇▇ Division 8
2.4 Retention of Certain Liabilities 8
2.5 Transfer Taxes 8
2.6 338(h)(10) Election 9
ARTICLE III
CLOSING
3.1 Closing 9
3.2 Conveyances at Closing 10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
4.1 Organization of Seller 11
4.2 Organization of the Company and the Insurance
Subsidiaries 11
4.3 Authorization 11
4.4 Capitalization of the Company and the Insurance
Subsidiaries 11
4.5 Subsidiaries 12
4.6 Ownership of the Stock 12
4.7 Financial Statements 12
4.8 Undisclosed Liabilities 12
4.9 Conduct of Business in Normal Course 13
4.10 Regulatory Matters 14
4.11 Material Contracts 14
4.12 No Defaults 14
4.13 Benefit Plans 15
4.14 No Conflict or Violation 16
4.15 Consents and Approvals 16
4.16 Claims and Legal Proceedings 17
4.17 Taxes 17
4.18 Intellectual Property Rights 17
4.19 Labor Relations 18
4.20 Environmental Laws 19
4.21 Securities 19
4.22 Agreements with Regulatory Agencies 20
4.23 Certain Practices 20
4.24 Insurance 20
4.25 Title to Property and Assets 21
4.26 No Brokers 22
4.27 No Other Agreements 22
4.28 Compliance with Laws 22
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
5.1 Organization 22
5.2 Authorization 22
5.3 No Conflict or Violation 22
5.4 Consents and Approvals 23
5.5 No Litigation 23
5.6 No Brokers 23
ARTICLE VI
COVENANTS OF SELLER AND BUYER
6.1 Maintenance of Business Prior to Closing 23
6.2 Company Employees 24
6.3 Certain Prohibited Transactions 25
6.4 Notification of Certain Matters 27
6.5 Access to Information 27
6.6 Reasonable Efforts; Cooperation; Further Assurances
27
6.7 No Conduct Inconsistent with this Agreement 28
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF SELLER
7.1 Representations, Warranties and Covenants 28
7.2 Consents 29
7.3 No Injunctions or Restraints; Illegality 29
7.4 Opinion of Counsel 29
7.5 Certificates 29
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF BUYER
8.1 Representations, Warranties and Covenants and
Agreements 29
8.2 Consents 29
8.3 No Injunctions or Restraints; Illegality 30
8.4 Opinion of Counsel 30
8.5 Certificates 30
ARTICLE IX
ACTIONS BY SELLER AND BUYER AFTER THE CLOSING
9.1 Books and Records 30
9.2 Survival of Representations, etc 31
9.3 Indemnification 31
9.4 Further Assurances 33
9.5 Name; Proprietary Information 33
9.6 No Solicitation 34
ARTICLE X
MISCELLANEOUS
10.1 Termination 35
10.2 Assignment 36
10.3 Notices 36
10.4 Choice of Law; Remedies; Venue 37
10.5 Entire Agreement; Amendments and Waivers 37
10.6 Multiple Counterparts 38
10.7 Expenses 38
10.8 Invalidity 38
10.9 Titles 38
10.10 Publicity 38
10.11 Confidential Information 38
10.12 Interpretation 39
10.13 Third Party Beneficiaries 39
PURCHASE AGREEMENT
This Purchase Agreement, dated as of April 14, 1999, is
between BANK ONE CORPORATION, a Delaware corporation ("Seller"),
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCIAL, INC., a Florida corporation
("Buyer").
RECITALS
A. Seller owns, either directly or through an Affiliate,
all of the issued and outstanding shares of common stock, par
value $10 per share (the "Stock"), of ▇▇▇▇▇ & Co., a Delaware
corporation (the "Company").
B. Seller owns, either directly or through an Affiliate,
all of the issued and outstanding shares of capital stock
(collectively, the "Insurance Subsidiaries Stock") of ▇▇▇▇▇
Insurance, Inc., ▇▇▇▇▇ Insurance Agency of Michigan, Inc., and
▇▇▇▇▇ Insurance Agency, Inc. (collectively, the "Insurance
Subsidiaries").
C. Seller owns, either directly or through an Affiliate,
the ▇▇▇▇▇ Division Assets (as such term is defined in Section
2.1(c)) and uses the ▇▇▇▇▇ Division Assets in the conduct of the
▇▇▇▇▇ Capital Markets Division of Banc One Capital Markets, Inc.
(the "▇▇▇▇▇ Division").
D. Buyer desires to (i) purchase the Stock, the Insurance
Subsidiaries Stock and the ▇▇▇▇▇ Division Assets from Seller and
(ii) assume the Assumed Obligations (as such term is defined in
Section 2.3), on the terms and subject to the conditions
hereinafter set forth.
E. Seller desires to (i) sell, assign, convey, transfer
and deliver the Stock, the Insurance Subsidiaries Stock and the
▇▇▇▇▇ Division Assets to Buyer and (ii) have Buyer assume the
Assumed Obligations, on the terms and subject to the conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used herein, the terms below shall
have the following meanings:
"Affiliate" shall mean any subsidiaries that are wholly
owned, directly or indirectly, by a Person.
"Asset Purchase Agreement" shall mean the Asset Purchase
Agreement, as amended, dated as of November 18, 1997, between
First Chicago NBD Corporation and ▇▇▇▇▇ & Co. L.L.C.
"Books and Records" shall mean all books, records and files,
whether in paper or electronic form, pertaining to the Business.
"Business" shall mean the brokerage, investment banking,
investment advisory, insurance and other businesses conducted by
the Company, the ▇▇▇▇▇ Division and the Insurance Subsidiaries as
of the date hereof.
"Client" shall mean any Person receiving investment banking,
investment advisory, brokerage, insurance or other services at
any time during the three year period prior to the Closing Date
from the Company, the ▇▇▇▇▇ Division or the Insurance
Subsidiaries, except that for purposes of this Agreement, the
term "Client" shall not include the Persons disclosed on the
Disclosure Schedule.
"Code" shall mean the Internal Revenue Code of 1986, as such
may be amended from time to time.
"Encumbrance" shall mean any claim, lien, mortgage, pledge,
option, charge, easement, security interest, right-of-way,
encumbrance or other right of third parties.
"Environmental Law" shall mean any law, statute, rule or
regulation, Order, settlement agreement or governmental
requirement, in effect on the date hereof, which relates to or
otherwise imposes liability or standards of conduct concerning
mining or reclamation of mined land, discharges, emissions,
releases or threatened releases of noises, odors or any
pollutants, contaminants or hazardous or toxic wastes, substances
or materials, whether as matter or energy, into ambient air,
water, or land, or otherwise relating to the manufacture,
processing, generation, distribution, use, treatment, storage,
disposal, cleanup, transport or handling of pollutants, con
taminants, or hazardous wastes, substances or materials,
including (but not limited to) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act of 1986, as amended, the
Resource Conservation and Recovery Act of 1976, as amended, the
Toxic Substances Control Act of 1976, as amended, the Federal
Water Pollution Control Act Amendments of 1972, the Clean Water
Act of 1977, as amended, any so called "Superlien" law, and any
other similar Federal, state or local statutes.
"GAAP" shall mean generally accepted accounting principles.
"Government Entity" shall mean any governmental, regulatory
or administrative body, agency, commission, board, arbitrator or
authority, any court or judicial authority, any public, private
or industry regulatory authority, any securities exchange or the
NASD, whether international, national, federal, state or local,
and any entity or official exercising executive, legislative,
judicial, regulatory or administrative functions.
"Interim Financials" shall mean the pro forma balance sheet
of the Business and statements of income of the Business as of,
and for the two month period ended, February 26, 1999, in each
case prepared on a consistent basis with the financial statements
of the Company audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, included in the
Disclosure Schedule.
"Knowledge" of any Person which is not an individual shall
mean the actual knowledge of such Person's executive officers and
managerial personnel having responsibility for the matter in
question and such knowledge as such executive officer or
managerial personnel should have obtained upon reasonable
investigation and inquiry into the matter in question. Knowledge
of the Seller shall include the Knowledge of the Company, the
Insurance Subsidiaries and the ▇▇▇▇▇ Division.
"Legal Proceeding" means any action, claim, lawsuit,
litigation, demand, suit, inquiry, hearing, investigation,
indictment, information, notice of a violation, arbitration,
appeal or other dispute or legal proceeding, whether civil,
criminal, administrative or otherwise.
"Litigation Reserve" means the amount of the reserve
included in the calculation of Tangible Net Worth to cover the
anticipated liabilities, costs and expenses associated with
pending or anticipated litigation as of the Closing Date
involving the Company, the Insurance Subsidiaries or the ▇▇▇▇▇
Division.
"Material Adverse Effect" or "Material Adverse Change"
means any change, effect, event, occurrence, or state of facts
that is, or could reasonably be expected to be, materially
adverse to the business or the income, assets, liabilities,
financial condition, results of operations or prospects of the
subject party and the terms "material" and "materially" have
correlative meanings; provided, however, that a Material Adverse
Effect or a Material Adverse Change with respect to a party shall
not include events or conditions generally affecting the
securities or banking industry, as applicable, or effects
resulting from general economic conditions (including changes in
interest rates), changes in accounting practices or changes to
laws, statutes, regulations or regulatory policies, that do not
have a materially more adverse effect on such party than that
experienced by similarly situated companies.
"Order" means any order, writ, judgment, arbitration award,
injunction, decree or ruling of or by a Government Entity.
"Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
"Permits" shall mean all of the Business' licenses,
franchises, permits, approvals, exemptions and authorizations
issued by any Government Entity relating to the Business,
including, but not limited to, any such licenses, permits,
approvals, exemptions and authorizations necessary to permit
individual employees of the Company, the Insurance Subsidiaries
and the ▇▇▇▇▇ Division to conduct the Business.
"Representative" shall mean any officer, director,
principal, attorney, agent, employee or other representative.
"Retention Program" shall mean the retention program
provided for in the Asset Purchase Agreement, pursuant to which
certain employees of the Company were awarded retention payments,
subject to certain terms and conditions described therein.
"Taxes" shall mean all taxes, charges, fees, levies or other
assessments of whatever nature, including, without limitation,
income, withholding, excise, property, sales, gross receipts,
use, license, transfer, payroll, occupancy or franchise taxes
imposed by any Government Entity, and including any interest,
assessments, penalties or additions thereto.
1.2 Other Defined Terms. The following terms shall have
the meanings defined for such terms in the Sections set forth
below:
Term Section
1940 Act 4.15
Acquisition Proposal 6.7
Advisers Act 4.15
Allocation Schedule 2.6
AMEX 4.10
Assumed Obligations 2.3
Benefit Program 4.13
Building 2.2
Buyer Material Breach 10.1
Closing 3.1
Closing Date 3.1
COBRA 6.2
Company Name 9.5
Company Proprietary Property 9.5
Contracts 2.1
CSE 4.10
Damages 9.3
Disclosure Schedule 4.0
Employee Benefit Plan 4.13
Employment Agreements 4.19
Financial Statements 4.7
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 4.15
HIPAA 6.2
Include 10.12
Includes 10.12
Including 10.12
Intellectual Property Rights 4.18
Investment Advisers Act 4.10
Mass Layoff 6.2
Material Contracts 4.11
Multiemployer Plan 4.13
NASD 4.10
NYSE 4.10
Party-in-Interest Transaction 4.13
PBGC 4.13
Plan Termination Basis 4.13
Plan 4.13
Plant Closing 6.2
Pledge Agreements 4.19
Prohibited Transaction 4.13
PSE 4.10
Purchase Price 2.2
Regulatory Agreement 4.22
Retained Employees 6.2
Retention Payments 2.2
Returns 4.17
▇▇▇▇▇ & Co. 9.5
▇▇▇▇▇ 9.5
▇▇▇▇▇ Division Assets 2.1
SEC 4.10
Securities Inventory 2.1
Seller Assumption Agreement 3.2
Seller Material Breach 10.1
Single-Employer Plan 4.13
SRO 4.15
Tangible Book Value 2.2
Tax Actions 4.17
WARN Act 6.2
Without Limitation 10.12
Year 2000 Compliant 4.18
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale. On and effective as of the Closing
Date, Seller will sell, convey, transfer, assign and deliver to
Buyer, and Buyer will purchase, assume and acquire from Seller:
(a) The Stock.
(b) The Insurance Subsidiaries Stock.
(c) All of Seller's right, title and interest in and to
all of the assets of the ▇▇▇▇▇ Division (collectively, the "▇▇▇▇▇
Division Assets"). Without limiting the generality of the
foregoing, the ▇▇▇▇▇ Division Assets shall include, (i) all
accounts receivable, (ii) all intellectual property rights;
(iii) all Client lists, Client records and other Books and
Records; (iv) all equipment, furniture, fixtures, leasehold
improvements and other tangible property, (v) all contracts,
arrangements and understandings listed or required to be listed
in the Disclosure Schedule (collectively, the "Contracts"),
(vi) all rights to real property owned or leased by Seller, and
(vii) the business of the ▇▇▇▇▇ Division as a going concern,
together with all goodwill associated therewith. A true, correct
and complete list of the ▇▇▇▇▇ Division Assets is set forth in
the Disclosure Schedule.
(d) The securities inventory related to the Business
which are owned by Banc One Capital Markets, Inc. and which the
Buyer has elected to purchase immediately prior to the Closing
Date (the "Securities Inventory"). The Seller and Buyer
understand and agree that the Securities Inventory is not
included in the ▇▇▇▇▇ Division Assets nor the assets of the
Company nor the Insurance Subsidiaries and will not be included
in the calculation of Tangible Net Worth.
2.2 Purchase Price.
(a) On the Closing Date, in consideration of the sale,
transfer, assignment, conveyance and delivery of the Stock, the
Insurance Subsidiaries Stock, the ▇▇▇▇▇ Division Assets and the
Securities Inventory, Buyer shall pay to Seller or Seller's
designee $80,000,000, subject to a post-Closing adjustment as
provided for in Section 2.2(b) (the "Purchase Price"), plus the
fair market value of the Securities Inventory (determined based
on the closing bid prices for the Securities Inventory on the
trading day immediately prior to the Closing Date) and less all
unaccrued amounts attributable to retention payments payable
under the Retention Program on and after the Closing Date (the
"Retention Payments") and less any liquidated damages payable to
the Company pursuant to any employment agreement by any employee
of the Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division
who ceases being employed by any of the foregoing from the date
hereof through the Closing Date and less the amount of any
payments under the Retention Program forfeited by any employee of
the Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division who
ceases being employed by any of the foregoing from the date
hereof through the Closing Date. The amount required to be paid
by Buyer pursuant to the immediately preceding sentence shall be
paid by wire transfer of immediately available funds from Buyer
to Seller or Seller's designee on the Closing Date.
(b) Within 30 days after the Closing, Seller will
prepare a balance sheet of the Business as of the close of
business on the date immediately prior to the Closing Date,
consistently applied, which shall include a calculation of the
amount of Tangible Book Value. Buyer and its independent
certified public accountants shall have the right to observe all
steps taken by Buyer in connection with the determination of the
amount of Tangible Book Value and to review fully all work papers
and procedures related thereto. Buyer shall have ten business
days following the receipt of the calculation of Tangible Book
Value from Seller to object to the calculation of Tangible Book
Value, and if Buyer does not object during such period, then the
amount of Tangible Book Value as calculated by Seller shall be
final and binding.
If Buyer believe that any adjustments should be made in
the calculation of the amount of Tangible Book Value, then Buyer
shall give Seller notice of such adjustments within ten business
days of the receipt of the calculation of Tangible Book Value
from Seller. If, after a period of ten business days following
the date that Buyer gives written notice of any proposed
adjustments to the amount of Tangible Book Value, any such
adjustments remain disputed, Buyer and Seller will jointly engage
a mutually satisfactory nationally recognized independent
accounting firm to resolve such disputed adjustments in
accordance with this Agreement and the decision of such firm
shall be final and binding. The fees of the independent public
accounting firm provided for in this Section shall be borne
equally by the Buyer and the Seller.
The term "Tangible Book Value" shall mean the total assets of the
aggregate of the Company, the Insurance Subsidiaries and the
▇▇▇▇▇ Division, less the total liabilities of the aggregate of
the Company, the Insurance Subsidiaries and the ▇▇▇▇▇ Division,
as of the date immediately prior to the Closing Date, prepared in
accordance with GAAP on a basis consistent with the audited
financial statements of the Company as of September 25, 1998
included in the Disclosure Schedule, with the following
adjustments: (i) the value of the NYSE seat owned by the Company
shall be excluded, (ii) the value of the stock exchange seats
owned by the Company (other than the NYSE seat) shall be included
at fair market value of such seats which shall equal the most
recently available bid price for such seats, (iii) goodwill shall
be excluded, (iv) the value of the headquarters building owned by
the Company (the "Building") shall be $4,225,000, (v) any accrual
for any audit expenses shall be excluded, (vi) the ▇▇▇▇▇ Capital
Corp. investment shall equal the sum of the initial capital
investment of $220,000, plus all retained earnings of ▇▇▇▇▇
Capital Corp., (vii) an accrual shall be included, in lieu of any
other accrual related to that certain investment advisor
engagement agreement, between ▇▇▇▇▇ & Co. LLC and ▇▇▇▇▇▇▇▇
Advisors, Inc., equal to the number of days from the Closing Date
through May 12, 2000 times $1,643.84, (viii) an accrual shall be
included for all outstanding liabilities and obligations relating
to any early retirement and severance packages and agreements,
including, without limitation, early retirement and severance
packages which were offered in February 1999 to certain employees
of the Company in connection with the proposed closing of the
Company's securities clearance operations, (ix) all assets and
liabilities relating to the payment of Taxes by Seller shall be
excluded, and (x) the accrual related to the Retention Program
shall be calculated based on a three year straight-line method.
(c) Within five business days after the amount of
Tangible Book Value is finally determined in accordance with the
provisions of Section 2.2(b), the amount of the Purchase Price
shall be adjusted as follows. If the amount of Tangible Book
Value is greater than $33.0 million, then Buyer shall be
obligated to deliver to Seller, as a Purchase Price adjustment,
an additional amount by wire transfer equal to the amount of
Tangible Book Value less $33.0 million. If the amount of
Tangible Book Value is less than $33.0 million, then Seller shall
refund to Buyer, as a Purchase Price adjustment, by wire transfer
an amount equal to $33.0 million less the amount of Tangible Book
Value.
2.3 Assumed Obligations of the ▇▇▇▇▇ Division. Buyer
hereby agrees to cause the Company or another Affiliate of the
Buyer to assume, satisfy and discharge (a) all liabilities and
obligations under the Contracts of the ▇▇▇▇▇ Division listed in
the Disclosure Schedule, but only to the extent that such
liabilities and obligations are attributable to periods on or
after the Closing Date, as and when the same shall become due,
and (b) the other obligations of the ▇▇▇▇▇ Division listed on the
Disclosure Schedule, as and when the same shall become due
(collectively, the "Assumed Obligations"). The assumption of the
Assumed Obligations shall in no way expand the rights or remedies
of third parties against the Company or the Affiliate of the
Buyer, as the case may be, as compared to the rights and remedies
which such parties would have had against Seller had this
Agreement not been consummated.
2.4 Retention of Certain Liabilities. Seller expressly
acknowledges and agrees that Seller shall retain, and that Buyer
shall not assume or be responsible at any time for any liability,
obligation, debt or commitment, whether absolute or contingent,
known or unknown, accrued or unaccrued, asserted or unasserted,
or otherwise, including but not limited to any liabilities,
obligations, debts or commitments incident to, arising out of or
incurred with respect to (a) Seller's obligations under this
Agreement and the transactions contemplated hereby (including any
and all sales, income or other Taxes arising out of the
transactions contemplated hereby), (b) any liability of Seller
for Taxes, (c) any liability of the Company or the Insurance
Subsidiaries for Taxes, whether measured by income or otherwise,
arising prior to the Closing Date, (d) any liability of Seller in
connection with any employee benefit plans maintained by Seller
or its Affiliates, other than the Company, (e) any liability
under any Environmental Law applicable to the Business and/or the
facilities used by the Business prior to the Closing Date
(whether or not owned by Seller) and (f) the Asset Purchase
Agreement.
2.5 Transfer Taxes. Seller shall be responsible for any
documentary transfer taxes and any sales, use or other transfer
taxes (including any taxes measured by or with respect to the
income or gross receipts of the Seller or any of its Affiliates)
imposed by reason of the transfer of the Stock, the ▇▇▇▇▇
Division Assets, the Insurance Subsidiaries Stock or the
Securities Inventory as provided for in this Agreement and any
deficiency, interest or penalty asserted with respect thereto.
2.6 338(h)(10) Election.
(a) Buyer and Seller shall join in making a timely
election under 338(h)(10) of the Code and Treasury Regulations
1.338(h)(10)-1(d) (and any corresponding elections under any
applicable state and local Tax provision (collectively, a
"338(h)(10) Election")) with respect to the purchase and sale of
the Stock and/or the Insurance Subsidiaries Stock.
(b) The Seller will be responsible for preparing and
filing all Returns of the Company and the Insurance Subsidiaries
relating to any period ending on or prior to the close of
business on the last calendar day immediately preceding the
Closing Date ("Pre-Closing Tax Periods."). The Buyer will be
responsible for preparing and filing all Returns of the Company
and the Insurance Subsidiaries relating to periods other than Pre-
Closing Tax Periods. After the Closing has occurred, the Buyer
will provide, or cause to be provided, to the Seller, without
charge, any information that may reasonably be requested by the
Seller in connection with the preparation of any Returns relating
to Pre-Closing Tax Periods.
(c) No later than six months after the Closing Date,
the Buyer will prepare an initial allocation of the "Modified
Adjusted Deemed Sales Price", as defined in Treasury Regulations
1.338(h)(10)-(f), among the assets of the Company and the
Insurance Subsidiaries (the "Allocation Schedule"). Buyer and
Seller shall jointly agree in good faith on the final amounts set
forth in the Allocation Schedule. Promptly thereafter, the
Seller and the Buyer shall exchange completed and executed copies
of IRS Form 8023-A (or other applicable form), required schedules
thereto, and any similar forms required by any state or local Tax
authority. If any changes are required to these forms as a
result of information which is first available after the final
determination of the Purchase Price in accordance with Section
2.2, the Seller and the Buyer will in good faith use commercially
reasonable efforts to promptly agree on such changes. The Seller
and the Buyer each agree to file all Returns in accordance with
the Allocation Schedule. Buyer shall pay the cost of any
appraisals that may be required in connection with supporting the
allocations contained in the Allocation Schedule.
ARTICLE III
CLOSING
3.1 Closing. The closing of the transactions contemplated
herein (the "Closing") shall be held at 11:00 a.m. local time on
May 28, 1999 at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
unless the parties agree to another time, date or place.
Notwithstanding the foregoing, unless the Agreement has been
previously terminated pursuant to the provisions of Section 10.1,
the Closing shall be delayed until three business days after all
of the conditions set forth in Article VII and Article VIII have
been satisfied. The term "Closing Date" shall mean the date on
which the Closing occurs.
3.2 Conveyances at Closing.
(a) By Seller. To effect the sales referred to in
Section 2.1, Bank One will, or will cause the appropriate
Affiliate to, on the Closing Date, deliver to Buyer:
(i) a certificate representing the Stock and a
duly executed stock power relating thereto executed by a
duly authorized officer of Seller or such Affiliate;
(ii) a certificate or certificates representing
the Insurance Subsidiaries Stock and a duly executed stock
power or powers relating thereto executed by a duly
authorized officer of Seller or such Affiliate;
(iii) a ▇▇▇▇ of Sale and Assignment and
Assumption of Liabilities with respect to the ▇▇▇▇▇ Division
Assets, the Securities Inventory and Assumed Obligations
transferring the ▇▇▇▇▇ Division Assets, the Securities
Inventory and the Assumed Obligations to the Company or
another Affiliate of the Buyer, as designated by the Buyer;
and
(iv) such other instruments as shall be reasonably
requested by Buyer to vest in the Buyer, the Company or
another designated Affiliate of the Company, as the case may
be, title in and to the Stock, the Insurance Subsidiaries
Stock, the ▇▇▇▇▇ Division Assets and the Securities
Inventory, and to consummate the transactions contemplated
by the provisions hereof.
(b) By Buyer. To effect the sale referred to in
Section 2.1, Buyer will, or will cause the Company or another
designated Affiliate of the Buyer to, on the Closing Date,
deliver to Seller or Seller's designee:
(i) the amount required to be paid pursuant to
Section 2.1(a);
(ii) an Assignment and Assumption of Liabilities
with respect to the Assumed Obligations; and
(iii) such other instruments as shall be
reasonably requested by Seller to consummate the
transactions contemplated by the provisions hereof.
(c) Form of Instruments. All of the foregoing
instruments listed in Section 3.2(a) and Section 3.2(b) shall be
in form and substance, and shall be executed and delivered in a
manner, reasonably satisfactory to Buyer and Seller. In
addition, each of the Buyer and the Seller shall deliver a
certificate, dated as of the Closing Date, confirming that all
conditions set forth in Article VII or Article VIII, as the case
may be, have been satisfied.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as disclosed to Buyer in the confidential disclosure
schedule delivered by Seller simultaneously with the execution of
this Agreement (the "Disclosure Schedule") and except as
expressly excepted in this Article IV, Seller hereby represents
and warrants to Buyer as follows:
4.1 Organization of the Seller. Seller is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware, and has full power and corporate
authority to conduct its business as it is presently being
conducted and to own and lease its properties and assets.
4.2 Organization of the Company and the Insurance
Subsidiaries. Each of the Company and the Insurance Subsidiaries
is a corporation duly organized, validly existing and in good
standing under the laws of its respective state of incorporation,
and has full corporate power and authority to conduct its
business as it is presently being conducted and to own and lease
its properties and assets, and is duly qualified and in good
standing as a foreign corporation in each jurisdiction where the
location and character of its properties and the business
conducted by it require such qualification, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect.
4.3 Authorization. Seller has all necessary corporate power
and authority and has taken, or by Closing will have taken, all
corporate action necessary to enter into this Agreement, to
consummate the transactions contemplated hereby and to perform
its obligations hereunder. This Agreement has been duly executed
and delivered by Seller and is a legal, valid and binding
obligation of Seller, enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency and other
similar laws of general applicability relating to or affecting
creditors rights and to general equity principals.
4.4 Capitalization of the Company and the Insurance
Subsidiaries. As of the date hereof, the authorized capital
stock of the Company consists of 100 shares of the Company's
common stock, $10.00 par value, of which 100 shares were issued
and outstanding and no shares were held as treasury shares as of
the date hereof. All of the issued and outstanding shares of
Stock and Insurance Subsidiaries Stock have been duly and validly
authorized and issued, and are fully paid and non-assessable.
None of the outstanding shares of Stock or Insurance Subsidiary
Stock has been issued in violation of any preemptive rights of
current or past stockholders or is subject to any preemptive
rights of the current or past stockholders of the Company or the
Insurance Subsidiaries. There are no shares of capital stock or
other equity securities of the Company or the Insurance
Subsidiaries outstanding except for the shares of Stock and the
shares of Insurance Subsidiary Stock, and no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of the capital stock
of the Company or the Insurance Subsidiaries, or contracts,
commitments, understandings, or arrangements by which the Company
or the Insurance Subsidiaries is or may be bound to issue
additional shares of its capital stock or options, warrants, or
rights to purchase or acquire any additional share of its capital
stock.
4.5 Subsidiaries. Except for ▇▇▇▇▇ Capital Corp., ▇▇▇▇▇
Properties, Inc. and ▇▇▇▇▇ Real Estate, Inc., neither the Company
nor the Insurance Subsidiaries own directly or indirectly (or
possess any options or other rights to acquire) any subsidiaries
or any direct or indirect ownership interests in any other
Person.
4.6 Ownership of the Stock and the Insurance Subsidiaries
Stock. The First National Bank of Chicago, a wholly-owned
subsidiary of the Seller, owns, beneficially and of record, all
of the Stock. NBD Bank (Michigan), a wholly-owned subsidiary of
the Seller, owns, beneficially and of record, all of the issued
and outstanding capital shares of ▇▇▇▇▇ Insurance Agency, Inc.
and ▇▇▇▇▇ Insurance Agency of Michigan, Inc., except that the
voting stock of ▇▇▇▇▇ Insurance Agency, Inc. is subject to that
certain voting trust agreement dated as of January 26, 1996 among
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ Insurance Agency, Inc. and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ & Co. NBD Bank (Elkhart, Indiana), a wholly-owned
subsidiary of Seller, owns, beneficially and of record, all of
the issued and outstanding capital stock of ▇▇▇▇▇ Insurance Inc.
The Stock and the Insurance Subsidiaries Stock are owned free and
clear of any Encumbrances, proxies, calls or commitments of any
nature, and the transfer and delivery of the Stock and the
Insurance Subsidiaries Stock to Buyer at the Closing shall
transfer good and marketable title to the Stock and the Insurance
Subsidiaries Stock to Buyer, free and clear of all Encumbrances,
proxies, calls or commitments of any nature.
4.7 Financial Statements. Seller has included in the
Disclosure Schedule true and complete copies of the following
financial statements (the "Financial Statements"): (a) an audited
balance sheet of the Business as at September 25, 1998 and an
audited statements of income and statement of stockholders'
equity of the Business for the period from May 8, 1998 to
September 25, 1998, together with reports thereon of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, independent accountants for the Company, (b) an
unaudited balance sheet of the Business as at December 31, 1998
and an unaudited statement of income of the Business for the year
ended December 31, 1998, and (c) the Interim Financials. The
Financial Statements have been prepared in conformity with GAAP
applied on a consistent basis and present fairly the financial
position of the Business at the dates shown and the results of
its operations and changes in its financial positions for the
periods then ended.
4.8 Undisclosed Liabilities. As of February 26, 1999, the
Business did not have, and since such date the Business has not
incurred or suffered, any liabilities, whether accrued, absolute,
contingent or otherwise, existing or arising out of any
transaction or state of facts existing on or prior to the date
hereof except (a) as and to the extent disclosed, reflected or
reserved against in the Financial Statements, (b) as and to the
extent arising under contracts, commitments, transactions or
circumstances identified in the Disclosure Schedule, excluding
any liabilities for breaches thereof, and (c) as and to the
extent incurred in the ordinary course of business after February
26, 1999, none of which are individually and in the aggregate
material.
4.9 Conduct of Business in Normal Course. Except as
otherwise disclosed in this Agreement or the Disclosure Schedule,
the Business has, since September 25, 1998, been conducted in the
ordinary and usual course consistent with past practice and, to
the Knowledge of Seller, no event or condition of any character
has occurred that could reasonably be expected to have a Material
Adverse Effect on the Business. Without limiting the generality
of the foregoing, except as set forth in the Disclosure Schedule,
since September 25, 1998, there has not been:
(a) any change in the business, operations, assets,
liabilities, financial condition or operating results of the
Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division which
has had or would reasonably be expected to have a Material
Adverse Effect on the Company, the Subsidiaries or the ▇▇▇▇▇
Division, taken as a whole;
(b) any damage, destruction or loss, whether or not
covered by insurance to or of the assets of the Company, the
Insurance Subsidiaries or the ▇▇▇▇▇ Division which has had or
would reasonably be expected to have a Material Adverse Effect on
the Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division,
taken as a whole;
(c) any forgiveness of or waiver by the Company, the
Insurance Subsidiaries or the ▇▇▇▇▇ Division of any rights or of
any debt, liability or obligation owed to it other than in the
ordinary course of business consistent with past practices;
(d) any satisfaction or discharge of any Encumbrance
or payment of any debt, liability or obligation by the Company,
the Insurance Subsidiaries or the ▇▇▇▇▇ Division, except in the
ordinary course of business;
(e) any mortgage, pledge, transfer of an Encumbrance
on the Company's, the Insurance Subsidiaries' or the ▇▇▇▇▇
Division Assets, except Encumbrances for current Taxes not yet
due or payable;
(f) any direct or indirect loans or guarantees made by
the Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division to
or for the benefit of their shareholders (including the Seller),
employees, officers, directors or consultants, or any members of
their immediate families, other than travel advances and other
advances made in the ordinary course of its business;
(g) any declaration, setting aside or payment of any
dividend or other distribution in respect of the Stock or the
Insurance Subsidiaries Stock;
(h) any change in, or agreement to change, the
Retention Program, any Plan or Benefit Program;
(i) any change in the contingent obligations of the
Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division by way
of guaranty, endorsement, indemnity, warranty or otherwise;
(j) any Contract, agreement or commitment by the
Company, the Insurance Subsidiaries and the ▇▇▇▇▇ Division to do
any of the things described in this Section; or
(k) any increase in compensation or any payment or
agreement to pay or accrue any bonus or like benefit not in the
ordinary course of business to or for the credit of any employee
of the Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division.
4.10 Regulatory Matters. The Company is duly registered,
qualified to do business and in good standing as a broker-dealer
with the Securities and Exchange Commission (the "SEC") and with
the appropriate state agency in each state in which the conduct
of the Business requires such registration and qualification, is
duly registered as an investment adviser with the State of
Michigan under the Michigan Uniform Securities Act as required
under the Investment Advisers Act of 1940 (the "Investment
Advisers Act"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"), the New
York Stock Exchange (the "NYSE"), the American Stock Exchange,
Inc. (the "AMEX"), the Pacific Stock Exchange (the "PSE") and the
Chicago Stock Exchange (the "CSE"). The Company, the Insurance
Subsidiaries and the ▇▇▇▇▇ Division have filed all reports,
registrations and statements, together with any amendments
required to be made with respect thereto, that they were required
to be filed by them with any Government Entity since January 1,
1996, and have paid all fees and assessments due and payable in
connection therewith, except where the failure to file such
report, registration or statement or to pay such fees and
assessment, either individually or in the aggregate, is not
reasonably likely to have a Material Adverse Effect. There is
no material unresolved violation, criticism or exception by any
Government Entity with respect to any report or statement
relating to any examinations of the Company, the Insurance
Subsidiaries or the ▇▇▇▇▇ Division.
4.11 Material Contracts. Set forth on the Disclosure
Schedule is a list and brief description of each contract,
agreement, commitment or arrangement (whether written or oral) of
a material nature to which the Company, the Insurance
Subsidiaries or the ▇▇▇▇▇ Division is a party or under which the
Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division is
obligated on the date hereof (the "Material Contracts") other
than contracts for services (not including investment banking
services) between the Company or the Insurance Subsidiaries and
their respective Clients. For purposes of this Section, Material
Contracts shall include, without limitation, (i) any contract
relating to the employment, engagement, compensation or
termination of directors, officers, employees, consultants or
agents by the Company, (ii) any licensing or other agreement
relating to software used in the conduct of the Business (other
than commercially available software commonly run on personal
computers), (iii) any loan, loan agreement, note, letter of
credit or other evidence of indebtedness where the Business is
the obligor or guarantor, (iv) any contract involving total
future payments of more than $50,000 other than contracts for
brokerage services incurred in the ordinary course of business to
purchase or sell securities on behalf of Clients, (v) any
contract other than this Agreement limiting the freedom of the
Business to compete in any line of business or with any Person
and (vi) any outstanding offer, commitment or obligation to enter
into any Material Contract.
4.12 No Defaults. Each of the Company, the Insurance
Subsidiaries and the ▇▇▇▇▇ Division has fulfilled and taken all
action reasonably necessary to date to enable it to fulfill, when
due, all material obligations under all Material Contracts to
which it is a party, and there are no defaults and no events have
occurred that, with the lapse of time or election of any other
party, will become defaults by it under any Material Contract. To
the Knowledge of Seller, no breach or default by any other party
under any Material Contract has occurred or is threatened that
will impair or could impair the ability of the Company to enforce
any of its rights thereunder in any material respect.
4.13 Benefit Plans.
(a) The Disclosure Schedule contains a description of
each of the following, if any, which is or has been sponsored,
maintained or contributed to by the Company, the Insurance
Subsidiaries or the ▇▇▇▇▇ Division for the benefit of its
employees or agents: (i) each "employee benefit plan", as defined
in Section 3(3) of ERISA (including, but not limited to, employee
benefit plans which are not subject to the provisions of ERISA)
("Plan"), and (ii) each personnel policy, collective bargaining
agreement, profit sharing, stock option, stock purchase, pension,
bonus, incentive, retirement, incentive award plan or
arrangement, vacation policy, severance pay policy or agreement,
deferred compensation agreement or arrangement, consulting
agreement, employment contract, medical reimbursement, life
insurance or other benefit plan, agreement, arrangement, program,
practice or understanding which is not described in Section
4.13(a)(i) ("Benefit Program").
(b) True, correct and complete copies or descriptions
of each Plan and each Benefit Program, and related trusts and
agreements, if applicable, including all amendments thereto, have
been furnished to Buyer. There has also been furnished to Buyer,
with respect to each Plan required to file such report and
description, the three most recent on Form 5500 and the summary
plan description.
(c) Except as otherwise set forth in the Disclosure
Schedule, (i) neither the Company nor the Insurance Subsidiaries
contribute nor has any obligation to contribute to, and has not
at any time contributed to or had an obligation to contribute to,
a multiemployer plan within the meaning of Section 3(37) of ERISA
("Multiemployer Plan") or a multiple employer plan within the
meaning of Section 413(b) and (c) of the Code; (ii) each of the
Company and the Insurance Subsidiaries has substantially
performed all obligations, whether arising by operation of law or
by Contract, required to be performed by it before or on the date
hereof in connection with the Plan and Benefit Programs
(including without limitation the filing of any required Form
5500 for any of the Plans); (iii) all material reports and
disclosures relating to the Plans required to be filed with or
furnished to Government Entities, Plan participants or Plan
beneficiaries have been filed or furnished in accordance with
applicable law in a timely manner, and each Plan and Benefit
Program has been administered in substantial compliance with its
governing documents; (iv) each Plan intended to be qualified
under Section 401(a) of the Code satisfies the requirements of
such section and has received a favorable determination letter
from the Internal Revenue Service regarding such qualified status
and has not, since receipt of the most recent favorable
determination letter, been amended or operated in a way which
could adversely affect such qualified status; (v) there are no
Legal Proceedings pending (other than routine claims for
benefits) or threatened against, or with respect to, any Plan or
Benefit Programs or their assets; (vi) all contributions required
to be made to the Plans pursuant to their terms and provisions
and applicable law have been made timely; (vii) neither the
Company nor the Insurance Subsidiaries has or sponsors any Plan
subject to Title IV of ERISA,; (viii) none of the Plans nor any
trust created thereunder or with respect thereto has engaged in
any "prohibited transaction" or "party-in-interest transaction"
as such terms are defined in Section 4975 of the Code and Section
406 of ERISA which could subject any Plan, either company or any
officer, director or employee thereof to a tax or penalty on
prohibited transactions or party-in-interest transactions
pursuant to Section 4975 of the Code or Section 502(i) of ERISA;
and (ix) neither the Company nor the Insurance Subsidiaries has
or sponsors any Plan funded by a trust, which trust is intended
to be exempt from federal income taxation pursuant to Section
501(c)(9) of the Code.
4.14 No Conflict or Violation. Except as set forth in the
Disclosure Schedule, the execution, delivery, and performance of
this Agreement by Seller and the consummation of the transactions
contemplated hereby shall not (i) subject to the government
filings and other matters referred to in Section 4.15, violate
any law, statute, rule, regulation, ordinance, code, Order or
award applicable to Seller, the Company, the Insurance
Subsidiaries or the ▇▇▇▇▇ Division or their respective
properties, (ii) violate or conflict with, or permit the
cancellation of, any Material Contract or any other contract,
agreement, indebtedness, lease, Encumbrance, commitment, Permit
or concession to which Seller, the Company, the Insurance
Subsidiaries or the ▇▇▇▇▇ Division is a party, or by which any of
them or any of their respective properties are bound,
(iii) permit the acceleration of the maturity of any indebtedness
of, or indebtedness secured by the property of, Seller, the
Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division, (iv)
result in an imposition of any Encumbrance, restriction or charge
on the Business or the Company, the Insurance Subsidiaries or the
▇▇▇▇▇ Division, or (v) violate or conflict with any provision of
the Certificate of Incorporation, By-laws or any other governing
document or agreement of Seller, the Company, the Insurance
Subsidiaries or the ▇▇▇▇▇ Division.
4.15 Consents and Approvals. Except for (i) consents,
authorizations, approvals, filings, exemptions, registration and
waivers in connection with compliance with the applicable
provisions of federal, state and foreign laws (including without
limitation, securities and insurance laws) relating to the
regulation of broker-dealers, securities, commodities, investment
advisors and insurance agencies and any applicable domestic or
foreign industry self-regulatory organization ("SRO"), and the
rules of the NASD, the NYSE and other securities exchanges, (ii)
consents approvals and notices required under the Investment
Advisers Act of 1940, as amended (the "Advisers Act") and the
Investment Company Act of 1940, as amended (the "1940 Act"),
(iii) the expiration of any applicable waiting period under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended
("▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇"), (iv) such additional consents and
approvals set forth in the Disclosure Schedule, no consent,
authorization, approval, filing, exemption, waiver or
registration with, any Government Entity or any third Person is
required to be made or obtained by the Company, the Insurance
Subsidiaries or Seller in connection with the execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby.
4.16 Claims and Legal Proceedings. Except as set forth in
the Disclosure Schedule, during the three year period prior to
the date hereof, there have been no Legal Proceedings pending
against the Company, the Insurance Subsidiaries or the ▇▇▇▇▇
Division or directly or indirectly involving the Business. In
addition, to Seller's Knowledge, there are no Legal Proceedings
threatened against the Company, the Insurance Subsidiaries or the
▇▇▇▇▇ Division or which would directly or indirectly involving
the Business. There are no Orders of any Government Entity
outstanding against the Company, the Insurance Subsidiaries or
the ▇▇▇▇▇ Division or which involve directly or indirectly the
Business. No Legal Proceeding is pending or, to the Knowledge of
Seller, threatened that in any way (i) challenges the validity,
legality or enforceability of this Agreement or the transactions
contemplated hereby, (ii) is likely to have a material adverse
effect upon Seller's ability to perform its obligations under
this Agreement, or (iii) contests in any way the power or
authority of the Company, the Insurance Subsidiaries or Seller
with respect to this Agreement.
4.17 Taxes. Tax returns, reports, and declarations of
estimated tax (collectively, "Returns") which were required to be
filed with respect to the Business on or before the date hereof
have, in all material respects, been filed within the time
(including any applicable extensions) and in the manner provided
by law. There is not any presently effective waiver or extension
of any statute of limitations against assessments and collection
of Taxes relating to the Business. There are no pending or, to
the Knowledge of Seller, threatened claims, assessments, notices,
proposals to assess, deficiencies, or audits (collectively, "Tax
Actions") with respect to any Taxes owed or allegedly owed in
connection with the Business. There are no tax liens imposed on
the Seller, the Company, or the Insurance Subsidiaries with
respect to any of the assets used in connection with the
Business. Proper and accurate amounts, in all material respects,
have been withheld and remitted by Seller from and in respect of
all persons employed in connection with the Business from whom it
is required by applicable law to withhold for all periods in
compliance with the tax withholding provisions of all applicable
laws and regulations. Neither Seller, the Company nor the
Insurance Subsidiaries nor any other corporation has filed an
election under section 341(f) of the Code that is applicable to
the Company or any assets used in connection with the Business.
Neither the Company nor the Insurance Subsidiaries will be a
party to any tax sharing agreement with the Seller or any
Affiliate of the Seller for periods from and after the Closing.
4.18 Intellectual Property Rights.
(a) Seller has disclosed in the Disclosure Schedule
all registered copyrights, copyright registrations and copyright
applications, trademark registrations and applications for
registration, patents and patent applications, trademarks,
service marks, trade names, software programs and licenses and
Internet domain names and applications for domain names
(collectively, "Intellectual Property Rights") used in the
Business and whether any employee, officer, consultant,
government agency, university or other Person has any rights in
such Intellectual Property. The Intellectual Property Rights are
sufficient to carry on the Business as presently conducted. The
Company or the Insurance Subsidiaries have exclusive ownership of
or license to use all Intellectual Property Rights identified in
the Disclosure Schedule. Except as identified in the Disclosure
Schedule, the present Business activities do not infringe any
Intellectual Property Rights of others. Seller has not received
any notice or other claim from any Person asserting that any
present Business activities infringe or may infringe any
Intellectual Property Rights of such Person.
(b) The Company and the Insurance Subsidiaries have
the right to use all trade secrets, customer lists, hardware
designs, programming processes, software and other information
required for or incident to the Business as presently conducted
or contemplated. Seller has taken all reasonable measures to
protect and preserve the security and confidentiality of trade
secrets and other confidential information of the Business.
(c) The Disclosure Schedule describes in reasonable
detail all actions taken by the Company, the Insurance
Subsidiaries and the ▇▇▇▇▇ Division to become Year 2000 Compliant
and whether any hardware, software and firmware utilized in the
operation of the Business is Year 2000 Compliant. "Year 2000
Compliant" means that such software and data, without causing
failures in software, firmware or hardware and without leading to
invalid or incorrect results during operation prior to, during
and after January 1, 2000 A.D., will: (i) operate without error
relating to the date data, (ii) properly use, recognize and
indicate dates from and after January 1, 2000 as both input and
output, including without limitation, in any calculation of dates
or length of time in the same century or in multiple centuries;
and (iii) conform to proper leap year calculations from and after
January 1, 2000.
4.19 Labor Relations.
(a) Except as set forth in the Disclosure Schedule,
neither the Company nor the Insurance Subsidiaries is a party to
or bound by any and, to Seller Knowledge there are no, agreements
or arrangements on behalf of any officer, director or employee of
the Business providing for severance payments, accelerated
vesting or similar benefits following termination of their
employment or for any payment, accelerated vesting or other
benefits to such Person contingent upon the execution of this
Agreement or the Closing. There are no collective bargaining
agreements applicable to the employees of the Business.
(b) There is no unfair labor practice charge or
complaint or any similar matter involving the employees of the
Business pending or, to Seller's Knowledge, threatened before any
Government Entity.
(c) There are no investigations, administrative
proceedings or formal complaints of discrimination (including
discrimination based upon sex, age, marital status, race,
national origin, sexual preference, handicap or veteran status)
pending or, to Seller's Knowledge, threatened before the Equal
Employment Opportunity Commission or any other Government Entity
involving any employees of the Business.
(d) The Disclosure Schedule contains a list of the
names and annual rates of compensation of the directors and
officers of the Company and the Insurance Subsidiaries and of the
employees of the Business whose rates of compensation, on an
annualized basis, during the year ended December 31, 1998
(including base salary, bonus, commissions, and incentive pay)
exceeded or are expected to exceed $100,000. The Disclosure
Schedule also summarizes the bonus, profit sharing, percentage
compensation, automobile, club membership, and other like
benefits, if any, paid or payable by to such directors, officers
or employees from January 1, 1998 through the date hereof. The
Disclosure Schedule also contains a brief description of all
material terms of employment agreements and confidentiality
agreements to which the Company or the Insurance Subsidiaries is
a party and a list by individual of the amount of all severance
benefits and Retention Payments which any such director, officer
or employee is or may be entitled to receive and the amount of
liquidated damages that such director, officer or employee may be
obligated to pay to the Company under the Employment Agreements.
Seller has delivered to Buyer accurate and complete copies of all
such employment agreements, confidentiality agreements, and all
other agreements, plans, and other instruments under which such
directors, officers and employees are entitled to receive
benefits of any nature.
(e) No arbitration or Order applicable to the Business
in any way will limit or restrict the relocation or closing of
any operations or facilities of or involving the Business.
(f) Except as set forth in the Disclosure Schedule,
the employment of each such director, officer and employee is
terminable at the will of the Company or the Insurance
Subsidiaries. Seller has not received notice that any officer or
key employee, or that any group of employees, intends to
terminate their employment with the Company or the Insurance
Subsidiaries, and Seller does not have a present intention to
terminate the employment of any of the foregoing.
(g) The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby do not
and will not (i) violate or conflict with, or permit the
cancellation of, (A) those certain employment agreements, dated
May 8, 1998 between the Company and certain employees of the
Company (the "Employment Agreements"), (B) the pledge agreements,
dated May 8, 1998, between the Company and certain employees of
the Company (the "Pledge Agreements") or (C) the Retention
Program, (ii) accelerate the payment of the Retention Payments,
(iii) alter the Company's right to receive payment of the
liquidated damages pursuant to paragraph 5 to the Employment
Agreements, (iv) permit or require the termination of any
security interest held by the Company in the Pledged Securities
(as defined in the Employment Agreements), or (v) cause or
require the return or distribution of the Pledged Securities by
the Company.
4.20 Environmental Laws. Neither the Company nor any
Insurance Subsidiary is in violation of any applicable, material
Environmental Law, and to the Knowledge of Seller, no material
expenditures are required to be made in order for the Business to
be in compliance with any Environmental Law.
4.21 Securities. The Company has good and marketable title
to all securities owned by it (except securities held in any
fiduciary or agency capacity), free and clear of any Encumbrance,
except to the extent such securities are pledged in the ordinary
course of business consistent with prudent business practices to
secure obligations of the Company. Such securities are valued on
the Financial Statements in accordance with GAAP. Except as set
forth in the Disclosure Schedule, the Securities Inventory is
owned by Banc One Capital Markets, Inc., free and clear of all
Encumbrances of any kind whatsoever. The Buyer, at the time of
the Closing, will receive good and marketable title to the
Investment Securities.
4.22 Agreements with Regulatory Agencies. As of the date
of this Agreement, except as set forth in the Disclosure
Schedule, neither the Company nor the Insurance Subsidiaries is
subject to any cease-and-desist or other Order issued by, or is a
party to any written agreement, consent agreement, or memorandum
of understanding with, or is a party to any commitment letter or
similar undertaking to, or is subject to any Order or directive
by, or is a recipient of any supervisory letter from or has
adopted any board resolutions at the request of any Government
Entity that restricts the conduct of the Business or that relates
to the capital adequacy, its credit policies, its management or
the Business (each, a "Regulatory Agreement"). Neither the
Company nor the Insurance Subsidiaries have been advised since
January 1, 1997 by any Government Entity that it is considering
issuing or requesting any Regulatory Agreement. There is no
pending or, to the Knowledge of Seller, threatened regulatory
investigation involving the Business. After the date of this
Agreement, no matters referred to in this Section have arisen.
4.23 Certain Practices. Since January 1, 1996, (a) neither
the Company, the Insurance Subsidiaries, the ▇▇▇▇▇ Division nor
Banc One Capital Markets has paid any money, made a gift or
provided a similar benefit to any official or employee of any
Government Entity, or to any elected official or candidate for
office which may subject the Company, the Insurance Subsidiaries
or the ▇▇▇▇▇ Division to any Order or any damage or penalty in a
Legal Proceeding; and (b) neither the Company, the Insurance
Subsidiaries, the ▇▇▇▇▇ Division, the Seller nor any Affiliate of
the Seller has paid any money, made a gift or provided a similar
benefit to any Client, supplier, employee or agent of any Client
or supplier, to any official or employee of any Government
Entity, or to any political party or candidate for office
(domestic or foreign) or other Person who was, is or may be in a
position to help or hinder the Business (or assist any of the
foregoing in connection with any actual or proposed transaction
involving the Business) which (i) may subject the Company, the
Insurance Subsidiaries or the ▇▇▇▇▇ Division to any damage or
penalty in any Legal Proceeding, (ii) if not given in the past,
may have had an adverse effect on the Business, or (iii) if not
continued in the future, may adversely affect the Business.
Except as disclosed in the Disclosure Schedule, as of the
Closing, there will be no loans, leases, obligations or other
continuing transactions between the Company, the Insurance
Subsidiaries and the ▇▇▇▇▇ Division, on the one hand, and the
Seller, on the other hand, with respect to the Business.
4.24 Insurance. The Disclosure Schedule sets forth a list
of all policies of fire, liability, business interruption, and
other forms of insurance and all fidelity bonds held by or
applicable to the Company, the Insurance Subsidiaries, the ▇▇▇▇▇
Division and the Business at any time within the past three
years, including in respect of each such policy the policy name,
policy number, carrier, term, type of coverage, deductible amount
or self-insured retention amount, limits of coverage, and annual
premium. No event has occurred which will result in a
retroactive upward adjustment of premiums under any such policies
or which is likely to result in any prospective upward adjustment
in such premiums. Except as disclosed in the Disclosure
Schedule, there has been no material change in the type of
insurance coverage maintained by the Company, the Insurance
Subsidiaries, the ▇▇▇▇▇ Division during the past three years
which has resulted in any period during which the Company, the
Insurance Subsidiaries, the ▇▇▇▇▇ Division had no insurance
coverage. Excluding insurance policies which have expired and
been replaced, no insurance policy of the Company, the Insurance
Subsidiaries, the ▇▇▇▇▇ Division has been canceled within the
last three years and, to the Knowledge of Seller, no threat has
been made to cancel any currently existing insurance policy.
4.25 Property and Assets; Accounts The Disclosure Schedule
sets forth a list and description of all real and personal
properties owned or leased as of February 26, 1999 by the
Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division as of
the date hereof. Except as set forth in the Disclosure Schedule,
the real and personal properties of the Company, the Insurance
Subsidiaries and the ▇▇▇▇▇ Division are free and clear of all
Encumbrances of any kind whatsoever, except those Encumbrances
which would not have a Material Adverse Effect. The physical
properties owned or utilized in the conduct of the Business are
in good operating condition and repair, normal wear and tear
excepted, and are adequate for the conduct of the Business. Banc
One Capital Markets, Inc., an indirect wholly-owned subsidiary of
the Seller, owns the ▇▇▇▇▇ Division Assets. Except as otherwise
set forth in the Disclosure Schedule, the Buyer, at the time of
the Closing, will indirectly have good and marketable title to or
a valid leasehold interest in all such physical properties owned
or utilized in the conduct of the Business.
The Disclosure Schedule sets forth the addresses of all real
property that the Company, the Insurance Subsidiaries and the
▇▇▇▇▇ Division owns, leases or subleases, and any Encumbrance
thereon, specifying in the case of each such lease or sublease,
the name of the lessor or sublessor, as the case may be, and the
lease term. To the Knowledge of Seller, there is no material
violation of any law, regulation or ordinance (including without
limitation laws, regulations or ordinances relating to zoning,
environmental, city planning or similar matters) relating to any
real property owned, leased or subleased by the Company, the
Insurance Subsidiaries or the ▇▇▇▇▇ Division. All the leases
listed on the Disclosure Schedule are valid and enforceable and
are in full force and effect, and except as disclosed on the
Disclosure Schedule, there are no defaults by the Company, the
Insurance Subsidiaries or the ▇▇▇▇▇ Division under any of such
leases or, to the Knowledge of the Seller, by any other party
thereto, which might have a Material Adverse Effect on the
present use by the Company, the Insurance Subsidiaries or the
▇▇▇▇▇ Division of the property listed on the Disclosure Schedule.
Except as set forth on the Disclosure Schedule, no consent or
approval of the lessor or sublessor of any of the leases listed
on the Disclosure Schedule is required in connection with the
consummation of the transactions contemplated by this Agreement
nor will such consummation result in any material increase of any
amounts payable under any lease listed on the Disclosure
Schedule.
The Disclosure Schedule sets forth a list of all accounts of
the Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division
with any bank, broker or other depository institution, and the
names of all persons authorized to withdraw funds from each such
accounts. The Disclosure Schedule also sets forth all corporate
credit card accounts for which the Company, the Insurance
Subsidiaries or the ▇▇▇▇▇ Division are responsible, and the names
of all persons that hold credit cards issued thereunder.
4.26 No Brokers. Neither the Company nor Seller has entered
into or will enter into any contract, agreement, arrangement or
understanding with any Person which will result in the obligation
of Buyer to pay any finder's fee, brokerage commission or similar
payment in connection with the transactions contemplated hereby.
4.27 No Other Agreements. Neither the Company nor Seller
has any legal obligation, absolute or contingent, to any other
Person to sell the Stock, the ▇▇▇▇▇ Division Assets and
Liabilities, the Insurance Subsidiaries Stock, or all or
substantially all the assets of the Company or to effect any
merger or consolidation of the Company.
4.28 Compliance with Laws. The Business has been conducted
in compliance with all statutes and regulations applicable to the
Business with which the failure to comply would have a Material
Adverse Effect. Neither Seller, the Company nor any Affiliate
has received notice from any agency or department of federal,
state or local government asserting a violation of any law,
regulation, ordinance, rule or order (whether executive,
judicial, legislative or administrative) that would have a
Material Adverse Effect. Set forth in the Disclosure Schedule is
a list of all Permits held by the Company, the Insurance
Subsidiaries, the ▇▇▇▇▇ Division and the employees thereof. The
Company, the Insurance Subsidiaries, the ▇▇▇▇▇ Division and the
employees thereof hold all Permits which are necessary to operate
the Business, except where such failure will not have a Material
Adverse Effect. There is no decree, judgment or order of any kind
in existence restraining Seller, the Company, any Affiliate, or
their respective Representatives from taking any actions of any
kind in connection with the Business.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
5.1 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Florida, and has full power and corporate authority to conduct
its business as it is presently being conducted and to own and
lease its properties and assets.
5.2 Authorization. Buyer has all necessary corporate power
and authority and has taken, or by Closing will have taken, all
corporate action necessary to enter into this Agreement, to
consummate the transactions contemplated hereby and to perform
its obligations hereunder. This Agreement has been duly executed
and delivered by Buyer and is a legal, valid and binding
obligation of Buyer, enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency and other
similar laws of general applicability relating to or affecting
creditors rights and to general equity principals.
5.3 No Conflict or Violation. The execution, delivery, and
performance of this Agreement by Buyer and the consummation of
the transactions contemplated hereby shall not (i) subject to the
government filings and other matters referred to in Section 5.4,
violate any law, statute, rule, regulation, ordinance, code,
Order or award applicable to Buyer or its properties,
(ii) violate or conflict with, or permit the cancellation of, any
contract, agreement, indebtedness, lease, Encumbrance,
commitment, Permit or concession to which Buyer is a party, or by
which Buyer or any of its properties are bound, or (iii) violate
or conflict with any provision of the Articles of Incorporation,
By-laws or any other governing document or agreement of Buyer.
5.4 Consents and Approvals. Except for (i) consents,
authorizations, approvals, filings, exemptions, registration and
waivers in connection with compliance with the applicable
provisions of federal, state and foreign laws (including without
limitation, securities and insurance laws) relating to the
regulation of broker-dealers, securities, commodities, investment
advisors and insurance agencies and any applicable domestic or
foreign industry SRO, and the rules of the NASD, the NYSE and
other securities exchanges, (ii) consents approvals and notices
required under the Advisers Act and the 1940 Act, (iii) the
expiration of any applicable waiting period under ▇▇▇▇-▇▇▇▇▇-
▇▇▇▇▇▇, (iv) such additional consents and approvals set forth in
the Disclosure Schedule, the failure of which to obtain would
result in a Material Adverse Effect on the Business, no consent,
authorization, approval, filing, exemption, waiver or
registration with, any Government Entity or any third Person is
required to be made or obtained by the Buyer in connection with
the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
5.5 No Litigation. No action, suit, inquiry,
investigation or other proceeding is pending or, to the Knowledge
of Buyer, threatened in or before any Government Entity that in
any way (i) challenges the validity, legality or enforceability
of this Agreement or the transactions contemplated hereby, (ii)
is likely to have a material adverse effect upon Buyer's ability
to perform its obligations under this Agreement, (iii) contests
or affects the validity or enforceability of this Agreement, or
(iv) contests in any way the power or authority of Buyer with
respect to this Agreement.
5.6 No Brokers. Buyer has not entered into and will not
enter into any contract, agreement, arrangement or understanding
with any Person which will result in the obligation of Seller or
the Company to pay any finder's fee, brokerage commission or
similar payment in connection with the transactions contemplated
hereby.
ARTICLE VI
COVENANTS OF SELLER AND BUYER
Seller, on the one hand, and Buyer, on the other hand,
covenant as follows:
6.1 Maintenance of Business Prior to Closing. Prior to the
Closing, and in furtherance of the transactions contemplated
hereby, Seller shall use its reasonable best efforts to continue
to carry on the Business in the ordinary course and substantially
in accordance with past practice and will not take any action
inconsistent therewith or with the consummation of the Closing or
with the performance of the obligations of Seller hereunder.
Seller shall not permit the Company, the Insurance Subsidiaries
or the ▇▇▇▇▇ Division to engage in any new line of business or
enter into any new Contract, transaction or activity or make any
commitment except in the ordinary course of business consistent
with past practice. Seller shall cause the Company, the
Insurance Subsidiaries and the ▇▇▇▇▇ Division to use their
commercially reasonable efforts to preserve intact their
respective business organizations, to keep available the services
of their respective current officers, employees and consultants,
and to preserve their present relationships with Clients,
suppliers and other Persons with which they have business
relations.
6.2 Company Employees.
(a) Effective upon the Closing, the Retained Employees
(as defined below) shall cease to be eligible to participate in
any of the Seller Plans. Neither Buyer, the Company, the
Insurance Subsidiaries nor any of their respective Affiliates
shall have any liability or obligation of any kind whatsoever
with respect to any of the Seller Plans, including, without
limitation, for benefits to which participants thereunder or
their beneficiaries may be entitled, whether such benefits accrue
before or after the Closing Date. The exclusion of liabilities
and obligations of Buyer, the Company, the Insurance Subsidiaries
and their respective Affiliates as set forth in the preceding
sentence includes any and all liabilities or obligations to any
parties, including, without limitation, participants under the
Seller Plans and their beneficiaries, the Internal Revenue
Service, the Pension Benefit Guaranty Corporation, the Department
of Labor and any other governmental authority, and any collective
bargaining unit which at any time represents any of the Retained
Employees or former employees of the Seller.
(b) With respect to employees of the Company, the
Insurance Subsidiaries and the ▇▇▇▇▇ Division who become or
remain employees of the Buyer, the Company or the Insurance
Subsidiaries at the Closing (the "Retained Employees"), Buyer
shall administer and perform or cause the performance of the
Company's currently existing obligations under the Company Plans,
the Employment Agreements and the Pledge Agreements. Buyer and
Seller acknowledge and agree that there will be no diminution or
change in the rights of the Retained Employees as set forth in
the Company Plans, the Employment Agreements and the Pledge
Agreements as a result of the consummation of the transactions
contemplated by this Agreement. Seller agrees to take any and all
actions necessary or desirable at the Closing to transfer to the
Buyer or the Company any cash, securities or other assets held by
the Seller pursuant to such Pledge Agreements.
(c) Buyer and Seller agree to fully cooperate with
each other in the administration of the Retention Program.
Seller agrees to pay or release all amounts owed under the
Retention Program and Buyer agrees to reimburse Seller for the
amounts paid or released by Seller as Retention Payments, but
only to the extent provided in this paragraph. Buyer shall
promptly pay Seller by wire transfer cash amounts that are
required to be paid or released to employees of the Company after
the Closing Date as Retention Payments under the Retention
Program, but only those cash amounts that were unaccrued, as of
the Closing Date, for Retention Payments payable on or after the
Closing Date. In addition, in the event that Seller is required
to release or pay to employees of the Company after the Closing
Date shares of Seller common stock as Retention Payments under
the Retention Program, then Buyer shall promptly pay Seller by
wire transfer an amount equal to $53.9938 times the number of
shares of Seller common stock so released or paid, but only those
shares of Seller common stock that were unaccrued, as of the
Closing Date, for Retention Payments payable on or after the
Closing Date. Buyer and Seller acknowledge and agree that there
will be no diminution or change in the rights of the Retained
Employees as set forth in the Retention Program.
(d) Buyer agrees not to take any action with respect
to employees of the Company, from the date of this Agreement
through 60 days after the Closing Date, that could be construed
as a "plant closing" or a "mass layoff", as those terms are
defined in the Worker Adjustment Retraining and Notification
Act, 29 U.S.C. 2101-2109 (the "WARN Act"). In the event of an
employment action by Buyer upon or following the Closing for
which notice is required under the WARN Act, Buyer agrees to
indemnify and hold harmless Seller and its Affiliates with
respect to any failure, or alleged failure, by Buyer to provide
notice as may be required under the WARN Act. Seller shall give
such notices to employees of the Company, the Insurance
Subsidiaries and the ▇▇▇▇▇ Division as are required for it to
comply with the Consolidated Omnibus Reconciliation Act of 1985
("COBRA") or any applicable state law. Seller also shall provide
certifications of creditable coverage under its group health
plan(s) to employees of the Company, the Insurance Subsidiaries
and the ▇▇▇▇▇ Division to the extent and within the time frames
required by the Health Insurance Portability and Accountability
Act of 1996 ("HIPAA"). Further, Seller shall provide such other
continuation and/or conversion notices to the employees of the
Company, the Insurance Subsidiaries and the ▇▇▇▇▇ Division as are
required under federal or state law relative to the benefits
which they enjoyed prior to the Closing Date. Buyer shall be
responsible for complying with the requirements of COBRA, HIPAA
and applicable state law, if any, relating to group health
insurance continuation with respect to any Retained Employee
whose employment is terminated after the Closing Date and who
experiences a loss of coverage after the Closing Date.
6.3 Certain Prohibited Transactions. Prior to the Closing,
Seller shall not, without the prior written consent of Buyer,
cause or permit the Company, the Insurance Subsidiaries or the
▇▇▇▇▇ Division to:
(a) incur any indebtedness for borrowed money, assume,
guarantee, endorse or otherwise become responsible for
obligations of any other individual, partnership, firm or
corporation, or make any loans or advances to any
individual, partnership, firm or corporation, except in the
ordinary course of business and consistent with past
practice;
(b) pay or incur any obligation to pay any dividend on
the Stock or the Insurance Subsidiaries Stock or make or
incur any obligation to make any distribution or redemption
with respect to such stock;
(c) make any change to the Articles of Incorporation
or By-laws of the Company or the Insurance Subsidiaries or
institute any action or proceeding to dissolve the Company
or the Insurance Subsidiaries;
(d) mortgage, pledge or otherwise encumber any of the
properties or assets of the Company or the Insurance
Subsidiaries or the ▇▇▇▇▇ Division Assets or sell, transfer
or otherwise dispose of any of the properties or assets of
the Company or the Insurance Subsidiaries or the ▇▇▇▇▇
Division Assets or cancel, release or assign any
indebtedness owed to the Company or the Insurance
Subsidiaries or any claims held by any of such companies,
except for the Encumbrance of securities in the ordinary
course of business and consistent with past practice;
(e) make any investment of a capital nature either by
purchase of stock or securities, contribution to capital,
loan, property transfer or otherwise, or by the purchase of
any property or assets of any other individual, partnership,
firm or corporation, except in the ordinary course of
business and consistent with past practice;
(f) enter into or terminate any material contract or
agreement, or make any material change in any of its
Material Contracts;
(g) (i) except as disclosed in the Disclosure
Schedule, increase the compensation payable or to become
payable to the officers, directors or employees of the
Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division;
(ii) change the employment conditions of any employee of the
Company, the Insurance Subsidiaries or the ▇▇▇▇▇ Division;
(iii) grant any severance or termination pay to, or enter
into any employment or severance agreement with, any of the
directors, officers or employees of the Company, the
Insurance Subsidiaries or the ▇▇▇▇▇ Division; (iv) amend,
modify, revoke or terminate the Retention Program; or (iv)
establish, adopt, enter into or amend any bonus, profit
sharing, trust, compensation, stock option, restricted
stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement,
trust, fund, policy or arrangement for the benefit of any
directors, officers or employees of the Company, the
Insurance Subsidiaries or the ▇▇▇▇▇ Division, or take any
action to accelerate any rights or benefits thereunder;
(h) (i) change any accounting policies or procedures
of the Company, the Insurance Subsidiaries or the ▇▇▇▇▇
Division or make any change in any accounting methods or
systems of internal accounting controls, except as may be
appropriate to conform to changes in GAAP; or (ii) make any
Tax election, other than in the ordinary course of business
consistent with past practice;
(i) increase or decrease prices charged to the Clients
of the Company, the Insurance Subsidiaries or the ▇▇▇▇▇
Division, other than in the ordinary course of business
consistent with past practice, or fail to use all
commercially reasonable efforts to enforce any Contract or
other agreement with any customer or supplier, collect its
accounts receivable, or pay its accounts payable, in each
case in the ordinary course of business consistent with past
practice;
(j) enter into any Contract or transaction with any
directors, officers or employees of the Company, the
Insurance Subsidiaries or the ▇▇▇▇▇ Division or any entity
in which any such director, officer, or employees has a
direct or indirect interest, whether or not in the ordinary
course of business; or
(k) agree, in writing or otherwise, to take or
authorize any of the foregoing actions or any action which
would cause any representation, warranty, covenant or
agreement of Seller in this Agreement to be or to become
untrue.
6.4 Notification of Certain Matters. Seller shall give
prompt notice to Buyer, and Buyer shall give prompt notice to
Seller, of (i) the occurrence, or failure to occur, of any event
known to such party, which occurrence or failure would be likely
to cause any representation or warranty contained in this
Agreement to be untrue or inaccurate in any material respect from
the date hereof to the Closing Date, and (ii) any material
failure of Seller or Buyer, as the case may be, to comply with or
satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder. Each party shall use commercially
reasonable efforts to remedy any failure on its part to comply
with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder.
6.5 Access to Information. From the date hereof through the
Closing Date, Seller shall, and shall cause the Company, the
Insurance Subsidiaries and the ▇▇▇▇▇ Division to, give Buyer and
its Representatives full and reasonable access to further
information with respect to the Business, its business records
and activities, during normal business hours for the purpose of
completing its business and financial review of the Business, and
Buyer will maintain the confidentiality of any such information
in accordance with Section 10.11.
6.6 Reasonable Efforts; Cooperation; Further Assurances.
Each of the parties hereto shall: use commercially reasonable
efforts to take, or cause to be taken, all appropriate actions,
and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated herein, including,
without limitation, (i) cooperating with the other in the
preparation and filing of all forms, notifications, reports and
information, if any, required or reasonably deemed advisable
pursuant to any law, statute, rule or regulation including the
NASD, NYSE and other stock exchange rules; (ii) using
commercially reasonable efforts to obtain all licenses, permits,
consents, approvals, authorizations, qualifications and orders of
any Government Entity or other Persons (including parties to
Contracts with the Company, the Insurance Subsidiaries and the
▇▇▇▇▇ Division as are necessary for the consummation of the
transactions contemplated hereby), (iii) making on a prompt and
timely basis all governmental or regulatory notifications and
filings required to be made by it for the consummation of the
transactions contemplated hereby, (iv) defending all Legal
Proceedings challenging this Agreement or the consummation of the
transactions contemplated hereby and to lift or rescind any
injunction or restraining Order or other Order adversely
affecting the ability of the parties to consummate the
transactions contemplated hereby, and (v) executing and
delivering such additional instruments and other documents and
shall take such further actions as may be necessary or
appropriate to effectuate, carry out and comply with all of the
terms of this Agreement and the transactions contemplated hereby.
6.7 No Conduct Inconsistent with this Agreement. From the
date hereof until the Closing Date, or earlier termination of
this Agreement as provided herein, Seller and its Affiliates
shall not, nor shall Seller authorize or permit any of its
Representatives to, directly or indirectly: (i) solicit,
initiate, encourage the initiation or submission by others of any
Acquisition Proposal; (ii) enter into or participate in
discussions or negotiations with, respond to solicitations
relating to, furnish to any Person any information with respect
to, or take any other action to encourage or facilitate any
inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal; or
(iii) enter into any contract, agreement or commitment (whether
or not binding) with respect to any Acquisition Proposal. For
purposes of this Agreement, the term "Acquisition Proposal" means
any proposal with respect to a merger, consolidation, share
exchange, strategic alliance, business combination or other
similar transaction (including, but not limited to, any
transaction in which a third party could become the direct or
indirect beneficial owner of the Stock, the Insurance
Subsidiaries Stock or the ▇▇▇▇▇ Division Assets) involving the
Seller, the Company, the Insurance Subsidiaries or the ▇▇▇▇▇
Division Assets, or any purchase of all or any significant
portion of the assets of the Company or the Insurance
Subsidiaries or of the ▇▇▇▇▇ Division Assets. Seller shall
promptly advise Buyer orally and in writing of (i) the receipt by
it (or any of the Persons referred to above) after the date
hereof of any Acquisition Proposal, or any inquiry which could
reasonably be expected to lead to an Acquisition Proposal, (ii)
the material terms and conditions of any such Acquisition
Proposal or inquiry and (iii) the identity of the Person making
any such Acquisition Proposal or inquiry. Seller shall (i) keep
Buyer fully informed of the status, including any change to the
details of any such Acquisition Proposal or inquiry and (ii)
provide to Buyer promptly after receipt or delivery thereof with
copies of all correspondence and other written material sent or
provided to Seller from any third party in connection with any
Acquisition Proposal.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligation of Seller to consummate the transactions
provided for hereby is subject, in the reasonable discretion of
Seller, to the satisfaction, on or prior to the Closing Date, of
each of the following conditions:
7.1 Representations, Warranties, Covenants and Agreements.
All representations and warranties of Buyer contained in this
Agreement shall be true and correct at and as of the Closing
Date, except as and to the extent that the facts and conditions
upon which such representations and warranties are based are
expressly required or permitted to be changed by the terms
hereof. Buyer shall have performed all agreements and covenants
required hereby to be performed by it prior to or at the Closing
Date.
7.2 Consents. Seller shall have received all consents,
authorizations, approvals, filings, exemptions and waivers from
Government Entities and all material consents, authorizations,
approvals, filings, exemptions and waivers other Persons
necessary to permit Seller to consummate the transactions
contemplated hereby.
7.3 No Injunctions or Restraints; Illegality. No Order
issued by any Government Entity preventing the consummation of
the transactions contemplated by this Agreement shall be in
effect. No law, statute, rule, regulation or Order shall have
been enacted, entered, promulgated or enforced by any Government
Entity which prohibits or materially restricts the consummation
of the transactions contemplated hereby.
7.4 Opinion of Counsel. Buyer shall have delivered to
Seller an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Senior Vice President
and Corporate Secretary of Buyer dated as of the Closing Date, in
the form of Exhibit A attached hereto. In rendering such
opinion, such counsel may rely as they deem advisable (a) as to
matters governed by the laws of jurisdictions other than states
in which he is admitted to practice law, upon opinions of local
counsel (including employees of Buyer and its Affiliates),
satisfactory to such counsel, and (b) as to factual matters, upon
certificates and assurances of public officials and officers of
Buyer.
7.5 Certificates. Buyer will furnish Seller with such
certificates of its officers and others to evidence compliance
with the conditions set forth in this Article as may be
reasonably requested by Seller.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligation of Buyer to consummate the transactions
provided for hereby is subject, in the reasonable discretion of
Buyer, to the satisfaction, on or prior to the Closing Date, of
each of the following conditions:
8.1 Representations, Warranties, Covenants and Agreements.
All representations and warranties of Seller contained in this
Agreement shall be true and correct at and as of the Closing
Date, except as and to the extent that the facts and conditions
upon which such representations and warranties are based are
expressly required or permitted to be changed by the terms
hereof. Notwithstanding the foregoing, the condition to Closing
set forth in the immediately preceding sentence shall be deemed
satisfied (but the Buyer shall retain its rights to any damages),
if the Disclosure Schedule is not true and correct, provided
that, as of the Closing Date, the Disclosure Statement did not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in
order to make the statements therein not misleading. Seller shall
have performed all agreements and covenants required hereby to be
performed by it prior to or at the Closing Date.
8.2 Consents. Buyer shall have received all consents,
authorizations, approvals, filings, exemptions and waivers from
Government Entities and all material consents, authorizations,
approvals, filings, exemptions and waivers other Persons
necessary to permit Buyer to consummate the transactions
contemplated hereby.
8.3 No Injunctions or Restraints; Illegality. No Order
issued by any Government Entity preventing the consummation of
the transactions contemplated by this Agreement shall be in
effect. No law, statute, rule, regulation or Order shall have
been enacted, entered, promulgated or enforced by any Government
Entity which prohibits or materially restricts the consummation
of the transactions contemplated hereby.
8.4 Opinion of Counsel. Seller shall have delivered to
Buyer the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice
President, Secretary and General Counsel of Seller, dated the
Closing Date, in the form of Exhibit B attached hereto. In
rendering such opinion, such counsel may rely as he deems
advisable (a) as to matters governed by the laws of jurisdictions
other than states in which he is admitted to practice law, upon
opinions of local counsel (including employees of Seller and its
Affiliates), satisfactory to such counsel, and (b) as to factual
matters, upon certificates and assurances of public officials and
officers of Seller and the Company, as the case may be.
8.5 Certificates. Seller will furnish Buyer with such
certificates of its officers and others to evidence compliance
with the conditions set forth in this Article as may be
reasonably requested by Buyer.
ARTICLE IX
ACTIONS BY SELLER
AND BUYER AFTER THE CLOSING
9.1 Books and Records. Each of Seller and Buyer agrees
that it will cooperate with and make available to the other,
during normal business hours, all Books and Records, information
and employees (without substantial disruption of employment)
retained and remaining in existence after the Closing Date which
are necessary or useful in connection with any tax audit,
investigation or dispute, any litigation or investigation of any
other matter requiring any such Books and Records, information or
employees for any reasonable business purpose. Each party agrees
to use its reasonable best efforts to retain in a reasonably
secure and accessible location all Books and Records until the
expiration of the later of (i) the period under which
indemnification is available pursuant to Section 9.3 and (ii)
three years from the Closing Date. The party requesting any such
Books and Records, information or employees shall bear all of the
out-of-pocket costs and expenses (including without limitation,
attorneys' fees) reasonably incurred in connection with providing
such Books and Records, information or employees. Seller may
require certain financial information for periods prior to the
Closing Date for the purpose of filing Returns and other
governmental reports, and Buyer agrees to furnish such
information to Seller at Seller's request and Seller shall
reimburse Buyer for all reasonable out-of-pocket expenses
relating thereto.
9.2 Survival of Representations, etc. The representations
and warranties set forth in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Closing
for a period of two years; provided, however, that (i) any
representation, warranty, covenant or agreement relating to Taxes
shall survive until the expiration of the applicable statute of
limitations, and (ii) any representation, warranty, covenant or
agreement related to Legal Proceedings involving a client of the
Company, ▇▇▇▇▇ Division or Insurance Subsidiaries shall survive
the Closing for a period of three years. The other covenants and
agreements set forth in this Agreement or in any instrument
delivered pursuant to this Agreement which by their terms apply
in whole or in part after the Closing or a termination of this
Agreement shall survive after the Closing Date or a termination,
as applicable, for the period specifically provided by their
respective terms, or, if no such period is specified, until the
expiration of the applicable statute of limitations.
9.3 Indemnification.
(a) By Seller. Seller shall indemnify, save and hold
harmless Buyer and its Affiliates (including, from and after the
Closing, the Company and the Insurance Subsidiaries), and their
respective Representatives, from and against any and all costs,
losses, liabilities, damages, lawsuits, deficiencies, claims and
expenses, including without limitation, interest, penalties,
reasonable attorneys' fees and expenses (including fees and
expenses of in-house legal counsel) and all amounts paid in
investigation, defense or settlement of any of the foregoing
(herein, the "Damages"), incurred in connection with or arising
out of or resulting from (i) any breach of any covenant or
agreement, or the inaccuracy of any representation or warranty,
made by Seller in or pursuant to this Agreement, (ii) Taxes of
the Business or any other corporation with which the Business may
have joined in the filing of a consolidated or combined Return
for all taxable years (or other taxable periods) during which the
Business shall have been or shall be in existence and any Taxes
related to the consummation of the transactions contemplated by
this Agreement; provided, however, that such indemnity shall
exclude the liability for Taxes relating to any period beginning
on or after the Closing Date, (iii) any liability, obligation,
debt or commitment of Seller described in Section 2.4, (iv) any
liability or obligation related to any Legal Proceedings, whether
absolute or contingent, known or unknown, accrued or unaccrued,
asserted or unasserted, involving any client of the Company, the
▇▇▇▇▇ Division or the Insurance Subsidiaries existing or arising
out of any transaction or state of facts existing on or prior to
the Closing Date, other than Legal Proceedings described in the
Disclosure Schedule, and (v) any liability or obligation, whether
accrued, absolute, contingent, known or unknown or otherwise,
existing or arising out of any transaction or state of facts
existing on or prior to the Closing Date, unless such liability
or obligation (A) was disclosed, reflected or reserved against in
the Financial Statements, or (B) arose under contracts,
commitments, transactions or circumstances identified in the
Disclosure Schedule, or (C) would not have been required to be
disclosed in the Disclosure Schedule if such transaction or state
of facts was known as of the Closing Date.
(b) By Buyer. Buyer shall indemnify, save and hold
harmless Seller and its Affiliates, and their respective
Representatives from and against any and all Damages incurred in
connection with or arising out of or resulting from (i) any
breach of any covenant or warranty, or the inaccuracy of any
representation, made by Buyer in or pursuant to this Agreement,
(ii) Taxes of the Business excluded from the indemnity of Seller
in Section 9.3(a), (iii) Assumed Obligations, or (iv) any
obligations under the Retention Program up to the amount of the
Retention Payments subtracted from the Purchase Price. In
addition, the Buyer shall cause the Company to indemnify, save
and hold harmless Seller and its Affiliates, and their respective
Representatives from and against any and all Damages incurred in
connection with or arising out of or resulting from the
litigation described in the Seller Disclosure Statement.
(c) Claims. If a claim for Damages is to be made by a
party entitled to indemnification hereunder against the
indemnifying party, the party entitled to such indemnification
shall give written notice to the indemnifying party as soon as
practical after the party entitled to indemnification becomes
aware of any fact, condition or event which may give rise to
Damages for which indemnification may be sought under this
Section 9.3. Neither Buyer nor Seller will have any
indemnification obligation under this Agreement unless notice is
given of any claim for indemnification prior to the end of the
period during which representations, warranties, covenants and
agreements survive as provided in Section 9.2. If any claim,
lawsuit, proceeding or action is filed against any party entitled
to the benefit of indemnity hereunder, written notice thereof
shall be given to the indemnifying party as promptly as
practicable (and in any event within 15 days after the service of
the citation or summons); provided, that the failure of any
indemnified party to give the notice required by the preceding
clause shall not affect rights to indemnification hereunder
except to the extent that the indemnifying party demonstrates
actual damage caused by such failure. After such notice, if the
indemnifying party shall acknowledge in writing to the
indemnified party that the indemnifying party shall be obligated
under the terms of its indemnity hereunder in connection with
such lawsuit or action, then, except as provided below, the
indemnifying party shall be entitled, if it so elects, to take
control of the defense and investigation of such lawsuit or
action and to employ and engage attorneys of its own choice to
handle and defend the same, at the indemnifying party's cost,
risk and expense provided that the indemnifying party and its
counsel shall proceed with diligence and in good faith with
respect thereto. The indemnified party shall cooperate (at the
indemnifying party's expense) in all reasonable respects with the
indemnifying party and such attorneys in the investigation, trial
and defense of such lawsuit or action and any appeal arising
therefrom; provided, however, that the indemnified party may, at
its own cost, participate in the investigation, trial and defense
of such lawsuit or action and any appeal arising therefrom and
provided, further, that if the indemnifying party shall not have
employed counsel to direct the defense of any such action or if
any such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them
which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf
of the indemnified party or parties), legal and other expenses
thereafter reasonably incurred by the indemnified party shall be
borne by the indemnifying party. An indemnified party shall not
be entitled to any payment under an indemnity hereunder with
respect to any action or portion of an action until such action
or portion shall have been settled by agreement among the
pertinent parties or shall have been finally determined
(including any appeals unless by agreement no further appeals are
taken) by a court or board of arbitration of competent
jurisdiction. No indemnifying party shall be required to pay
indemnification hereunder as a result of a settlement or
compromise unless the indemnified party shall have given its
prior written consent to such settlement or compromise, which
consent shall not be unreasonably withheld.
Buyer shall have no obligation to indemnify Seller pursuant
to this Section 9.3, unless and until the amount of all Damages
(other than Damages relating to the willful or intentional breach
of any representation, warranty, covenant or agreement) for which
Seller is otherwise entitled to receive indemnification from
Buyer exceeds $100,000, and, in that event, Seller shall have the
right to recover from Buyer all Damages, less $50,000. Seller
shall have no obligation to indemnify Buyer pursuant to this
Section 9.3, unless and until the amount of all Damages (other
than Damages relating to the willful or intentional breach of any
representation, warranty, covenant or agreement) for which Buyer
is entitled to receive indemnification from the Seller pursuant
to this Section 9.3 shall exceed the Litigation Reserve (less the
amount ultimately incurred by the Company with respect to the
Legal Proceedings described in the Disclosure Schedule) plus
$100,000 and, in that event, Buyer shall have the right to
recover from Buyer all Damages, less $50,000 and less the portion
of the Litigation Reserve that exceeds the amount ultimately
incurred by the Company with respect to the Legal Proceedings
described in the Disclosure Schedule. Each party shall be
obligated to indemnify the other for the full amount of all
Damages relating to the willful or intentional breach of any
representation, warranty, covenant or agreement. The obligation
of either party under this paragraph shall be limited to $15
million, excluding any Damages (a) for Taxes to be paid by
Seller, (b) for liabilities or obligations specifically assumed
or retained by either party, including, without limitation,
Seller's obligations under the Asset Purchase Agreement or (c)
for the willful or intentional breach of any representation,
warranty, covenant or agreement.
(d) Brokers and Finders. Pursuant to the provisions
of this Section, Buyer, on the one hand, and Seller, on the other
hand, shall indemnify, hold harmless and defend the other party
from the payment of any and all broker's and finder's expenses,
commissions, fees or other forms of compensation which may be due
or payable from or by the indemnifying party, or may have been
earned by any third party acting on behalf of the indemnifying
party in connection with the negotiation and execution hereof and
the consummation of the transactions contemplated hereby.
(e) No Consequential Damages. Notwithstanding any
provision of this Agreement to the contrary, NEITHER BUYER NOR
SELLER SHALL BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY
CONSEQUENTIAL DAMAGES SUFFERED BY SAID PERSON, EVEN IF BUYER OR
SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.4 Further Assurances. Both before and after the Closing
Date, each party will cooperate in good faith with the other
party and will take all appropriate action and execute any
documents, instruments or conveyances of any kind which may be
reasonably necessary or advisable to carry out any of the
transactions contemplated hereunder.
9.5 Name; Proprietary Information. Seller acknowledges and
agrees that it shall not retain after the Closing any right or
interest in or to or license to use the names "▇▇▇▇▇", "▇▇▇▇▇ &
Co." or any derivation of any of them (individually and
collectively, the "Company Name"); any logo, symbol, service
▇▇▇▇, trademark, tradestyle, slogan or similar intellectual
property used in the Business (the "Company Marks"); or any
proprietary information, marketing materials, software,
documents, signage, or Client lists of the Business (the "Company
Proprietary Property"). "Company Proprietary Property" shall not
include information with respect to Clients who are also
customers of Seller or its Affiliates (other than the Company,
the Insurance Subsidiaries or the ▇▇▇▇▇ Division) or marketing
materials of the Company relating to non-Company products of
Seller or its Affiliates. From and after the Closing Date, (a)
neither Seller nor its Affiliates shall use the Company Name,
Company Marks or Company Proprietary Property in any manner in
connection with the operation of their respective businesses and
(b) neither the Company nor the Insurance Subsidiaries shall use
the names "Banc One", "Bank One", "First Chicago", "NBD" and
"First Chicago NBD" in connection with the operation of their
respective businesses.
9.6 No Solicitation.
(a) Seller covenants and agrees that, without Buyer's prior
written consent, for a period of five years after the Closing
Date, Seller will not directly or indirectly (i) solicit for
employment, hire or otherwise engage the services of any Person
who was employed by the Company, the Insurance Subsidiaries or
the ▇▇▇▇▇ Division as of the Closing Date or (ii) solicit any
Client. Notwithstanding the foregoing, Seller may solicit
Clients who are retail brokerage customers of the Company as part
of Seller's general advertising and customer solicitation
efforts, so long as such efforts are not directly targeted at
such Clients and so long as Seller does not directly or
indirectly use any Client lists.
(b) Buyer covenants and agrees that, without Seller's prior
written consent, for a period of one years after the Closing
Date, Buyer will not directly or indirectly solicit for
employment, the employees of Banc One Capital Market, Inc. listed
on the Disclosure Schedule that are independent sale
representatives of Banc One Securities Corp. and First Chicago
NBD Investment Services, Inc. Notwithstanding the foregoing,
Buyer may hire or otherwise engage the services of any such
employee, if such employee directly or indirectly first contacts
Buyer or its Affiliates seeking employment or otherwise seeking
to be engaged by Buyer or its Affiliates.
ARTICLE X
MISCELLANEOUS
10.1 Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual written consent of Buyer and Seller; or
(b) by either Buyer or Seller:
(i) if the Closing shall not have occurred on or
before September 30, 1999; provided, however, that the
right to terminate the Agreement under this subsection
shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of the Closing to
occur on or before the date;
(ii) if (A) there shall be a final nonappealable
Order of a Government Entity restraining or prohibiting the
consummation of the transactions contemplated by this
Agreement, or (B) there shall be a law, statute, rule,
regulation or Order decree enacted, entered, promulgated or
enforced by any Government Entity which prohibits or
materially restricts the consummation of the transactions
contemplated hereby; or
(c) by Seller, if Buyer shall have breached or failed
to perform in any material respect any of its representations,
warranties, covenants or other agreements contained in this
Agreement, which breach or failure to perform (i) would give rise
to the failure of a condition set forth in Section 7.1, and (ii)
cannot be or has not been cured within 45 days after the giving
of written notice to Buyer of such breach (a "Buyer Material
Breach") (provided that Seller is not then in Seller Material
Breach (as defined in Section 10.1(d)) of any representation,
warranty, covenant or other agreement contained in this
Agreement); or
(d) by Buyer, if Seller shall have breached or failed
to perform in any material respect any of its representations,
warranties, covenants or other agreements contained in this
Agreement, which breach or failure to perform (A) would give rise
to the failure of a condition set forth in Section 8.1, and (B)
cannot be or has not been cured within 45 days after the giving
of written notice to Seller of such breach (a "Seller Material
Breach") (provided that Buyer is not then in Buyer Material
Breach of any representation, warranty, covenant or other
agreement contained in this Agreement).
In the event of termination of this Agreement by Seller or
Buyer pursuant to this Section, written notice thereof shall
promptly be given to the other party hereto, and upon such notice
this Agreement shall terminate. Except for Sections 10.7 and
10.11 or as provided elsewhere herein, in the event of the
termination of this Agreement pursuant to this Section, this
Agreement shall forthwith become void and of no further force and
effect, there shall be no liability on the part of Seller or
Buyer or any of their respective Representatives to the other,
all rights and obligations of any party hereto shall cease and
the parties shall be released from any and all obligations.
Notwithstanding the foregoing, nothing contained in this
Agreement shall relieve any party from liability for damages
resulting from the breach of any of its representations,
warranties, covenants or agreements set forth in this Agreement.
10.2 Assignment. Neither this Agreement nor any of the
rights or obligations hereunder may be assigned by any party
without the prior written consent of the other party, except that
Buyer may assign its rights under this Agreement to any Affiliate
or to the Company. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, and no other Person
shall have any right, benefit or obligation hereunder.
10.3 Notices. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by
either party to the other shall be in writing and delivered
personally, by facsimile transmission or mailed by certified
mail, postage prepaid, return receipt requested, as follows:
If to Seller, addressed to:
BANK ONE CORPORATION
One First National Plaza
Mail Code IL1-0046
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, First Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
BANK ONE CORPORATION
One First National Plaza
Mail Code IL1-0292
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
and Legal Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ or 9753
If to Buyer, addressed to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial, Inc.
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President - Finance and
Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other place and with such other copies as either party
may designate as to itself by written notice to the others.
Notice shall be effective on the date received by the party (or
the date of refusal of delivery).
10.4 Choice of Law; Remedies; Venue. This Agreement shall
be construed, interpreted and the rights of the parties
determined in accordance with the laws of the State of Delaware
(without reference to the choice of law provisions of Delaware
law) except with respect to matters of law concerning the
internal corporate affairs of any corporate entity which is a
party to or the subject of this Agreement, and as to those
matters the law of the jurisdiction under which the respective
entity derives its powers shall govern. The parties agree that
irreparable damage would occur and that the parties would not
have any adequate remedy at law in the event that any of the
provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this
Agreement in any federal court located in the State of Delaware
or in Delaware state court, this being in addition to any other
remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to
submit itself to the personal jurisdiction of any federal court
located in the State of Delaware or any Delaware state court in
the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (ii) agrees that it
will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, and iii)
agrees that it will not bring any action relating to this
Agreement of any of the transactions contemplated by this
Agreement in any court other than a federal court sitting in the
State of Delaware or a Delaware state court. Each party hereto
consents to service of process by any means authorized by the
applicable law of the forum in any action brought under or
arising out of this Agreement, and each party irrevocably waives,
to the fullest extent each may effectively do so, the defense of
an inconvenient forum to the maintenance of such action or
proceeding in any such court.
10.5 Entire Agreement; Amendments and Waivers. This
Agreement, together with all Exhibits and Disclosure Schedules
hereto, constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether
oral or written, of the parties. No supplement, modification or
waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of
the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
10.6 Multiple Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
10.7 Expenses. Except as set forth below or as otherwise
specified herein, each party hereto shall pay its own legal,
accounting, out-of-pocket and other expenses incident to this
Agreement and to any action taken by such party in preparation
for carrying this Agreement into effect. All costs of applying
for new Permits and obtaining the transfer of existing Permits
which may be lawfully transferred shall be borne equally by the
Buyer and the Seller. The filing fee required to be paid in
connection with the premerger notification and report forms to be
made under ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ shall be borne equally by the Buyer
and the Seller.
10.8 Invalidity. 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. Upon such determination that any term or
provision is invalid, illegal or incapable of being enforced, the
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 to the fullest extent permitted by applicable
law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
10.9 Titles. The titles, captions or headings of the
Articles and Sections herein are inserted for convenience of
reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
10.10 Publicity. The parties hereto shall issue a
mutually acceptable press release as soon as practicable after
the execution and delivery of this Agreement. Prior to the
Closing, no party shall issue any other press release, without
the prior approval of the other party, provided that the Buyer
and Seller, after consultation with one another, may make such
disclosures concerning the transactions provided for herein as
the Buyer or Seller believes are required by the Securities
Exchange Act of 1934.
10.11 Confidential Information. In connection with the
negotiation of this Agreement and the preparation for the
consummation of the transactions contemplated hereby, each party
acknowledges that it has had and will have access to confidential
information relating to the other parties. Each party shall
treat such information as confidential, shall preserve the
confidentiality thereof, shall not duplicate or use such
information other than for the purpose of consummating the
transactions contemplated by this Agreement, and shall not
furnish such information to any Person (other than to
Representatives who have a need to know such information in
connection with the transactions contemplated hereby), except to
the extent that such disclosure is required by judicial process
or governmental or regulatory authorities, in which case each
party shall give prompt notice to the other party so that such
party may seek to obtain a protective order. In the event of the
termination of this Agreement for any reason whatsoever, each
party shall return or destroy all documents, work papers and
other material (including all copies thereof) obtained in
connection with the transactions contemplated hereby and will use
all reasonable efforts, including instructing its employees and
others who have had access to such information, to keep such
information confidential and not to use any such information.
The representations and agreements contained in this Section
shall survive the termination of this Agreement or the Closing
Date for a period of three years after such termination or the
Closing Date, as applicable.
10.12 Interpretation. When a reference is made in this
Agreement to an article, section, paragraph, clause, schedule or
exhibit, such reference shall be deemed to be to this Agreement
unless otherwise indicated. The headings contained herein and on
the schedules are for reference and convenience purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement or the schedules. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall
be deemed to be followed by the words "without limitation." Time
shall be of the essence in this Agreement.
10.13 Third Party Beneficiaries. No Person not a party
to this Agreement shall be deemed to be a third-party beneficiary
hereunder or entitled to any rights hereunder.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed on their respective
behalf, by their respective officers thereunto duly authorized,
all as of the day and year first above written.
BANK ONE CORPORATION ▇▇▇▇▇▇▇ ▇▇▇▇▇
FINANCIAL, INC.
By By
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Executive Vice President Chairman of the
Board and
Chief Executive Officer
MIAMI/KUSHNERP/1030805/m3dh09!.DOC/5/07/99/99999.423574