Execution Copy
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMONG
GREENWICH AIR SERVICES, INC.
CONDOR ACQUISITION CORP.
AND
UNC INCORPORATED
Dated as of March 9, 1997
TABLE OF CONTENTS
[TO BE CONFORMED]
PAGE
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ARTICLE I
ARTICLE II
Section 2.1. The Merger.......................................-12-
Section 2.2. Conversion of Securities.........................-13-
Section 2.3. Surrender of Certificates: Stock Transfer Books..-14-
Section 2.4. Transfer Taxes...................................-15-
Section 2.5. Stock Options....................................-15-
ARTICLE III
Section 3.1. Stockholder Approvals............................-16-
Section 3.2. Effective Time of the Merger.....................-16-
ARTICLE IV
Section 4.1. Organization and Authority of the Greenwich and
Merger Sub.......................................-16-
Section 4.2. Authority Relative to this Agreement.............-17-
Section 4.3. Consents and Approvals: No Violations............-17-
Section 4.4. Fees and Expenses of Brokers and Others..........-18-
Section 4.5. Accuracy of Information .........................-18-
Section 4.6. GE-Greenwich Merger Agreement....................-18-
ARTICLE V
Section 5.1. Organization and Authority of the UNC Companies..-18-
Section 5.2. Capitalization...................................-19-
Section 5.3. Authority Relative to this Agreement.............-20-
Section 5.4. Consents and Approvals: No Violations............-20-
Section 5.5. Reports and Financial Statements.................-21-
Section 5.6. Absence of Certain Events........................-22-
Section 5.7. UNC Proxy Statement..............................-22-
Section 5.8. Litigation.......................................-22-
Section 5.9. Title to and Sufficiency of Assets...............-23-
i
Section 5.10. Contracts.......................................-23-
Section 5.11. Labor Matters...................................-24-
Section 5.12. Employee Benefit Plans..........................-25-
Section 5.13. Tax Matters.....................................-27-
Section 5.14. Insurance and Reinsurance.......................-28-
Section 5.15. Officers' and Directors' Liability Insurance....-28-
Section 5.16. Compliance with Law.............................-28-
Section 5.17. Environmental Matters...........................-29-
Section 5.18. Transactions With Affiliates....................-29-
Section 5.19. Fees and Expenses of Brokers and Others.........-29-
Section 5.20. Accuracy of Information.........................-29-
Section 5.21. Absence of Undisclosed Liabilities..............-30-
Section 5.22. Opinion of Financial Advisor....................-30-
Section 5.23. DGCL Section 203................................-30-
ARTICLE VI
Section 6.1. Conduct of the Businesses of UNC and Greenwich...-30-
Section 6.2. No Solicitation..................................-33-
Section 6.3. The UNC Proxy Statement..........................-33-
Section 6.4. Access to Information: Confidentiality Agreements-34-
Section 6.5. Best Efforts.....................................-34-
Section 6.6. Consents.........................................-35-
Section 6.7. Public Announcements.............................-35-
Section 6.8. [Intentionally omitted]
Section 6.9. Indemnification: Insurance......................-35-
Section 6.10. Board of Directors Approval.....................-36-
Section 6.11. UNC Stock Options...............................-36-
Section 6.12. Best Efforts, etc...............................-36-
Section 6.13. HSR Act.........................................-36-
Section 6.14. Interim Financials..............................-36-
Section 6.15. Material Events.................................-36-
Section 6.16. Rights Agreement................................-36-
Section 6.17. Reversion to Prior Agreement....................-37-
Section 6.18. Amendment of GE-Greenwich Merger Agreement......-37-
ARTICLE VII
Section 7.1. Greenwich Stockholder Approval...................-37-
Section 7.2. UNC Stockholder Approval.........................-38-
Section 7.3. Absence of Order.................................-38-
Section 7.4. Certain Approvals................................-38-
Section 7.5. Other Consents and Approvals.....................-38-
ARTICLE VIII
ii
Section 8.1. Representations and Warranties True..............-38-
Section 8.2. UNC's Performance................................-38-
Section 8.3. Resignation......................................-38-
Section 8.4. Certificates.....................................-39-
Section 8.5. SERP Termination.................................-39-
Section 8.6. Consummation of the GE/Greenwich Merger..........-39-
ARTICLE IX
Section 9.1. Representations and Warranties True..............-39-
Section 9.2. Greenwich's and Merger Sub's Performance.........-39-
Section 9.3. Certificates.....................................-39-
Section 9.4. Modification and Assumption of SERP/CIC Payments.-39-
ARTICLE X
Section 10.1. Time and Place..................................-40-
ARTICLE XI
Section 11.1. Termination.....................................-40-
Section 11.2. Effect of Termination...........................-41-
Section 11.3. Termination Payments and Expenses...............-41-
ARTICLE XII
Section 12.1. Expenses........................................-42-
Section 12.2. No Survival of Representations and Warranties...-43-
Section 12.3. Headings........................................-43-
Section 12.4. Notices.........................................-43-
Section 12.5. Assignment......................................-44-
Section 12.6. Complete Agreement..............................-44-
Section 12.7. Modifications, Amendments and Waivers...........-44-
Section 12.8. Counterparts....................................-44-
Section 12.9. Governing Law...................................-44-
Section 12.10.Accounting Terms................................-45-
Section 12.11.Severability....................................-45-
Section 12.12.Schedules to Prior Agreement....................-45-
iii
SCHEDULES
Schedule 1.18 Knowledge of Greenwich
Schedule 1.19 Knowledge of UNC
Schedule 1.26A Partnerships of Greenwich
Schedule 1.26B Partnerships of UNC
Schedule 1.28 Plan of Merger
Schedule 1.38A Subsidiaries of Greenwich
Schedule 1.38B Subsidiaries of UNC
Schedule 3.1A Certain Shareholders of UNC
Schedule 3.1B Form of UNC Shareholder Letter
Schedule 4.2 Greenwich Options, Warrants, Subscriptions or Other Rights
Schedule 4.4 Greenwich Required Consents
Schedule 4.10 Tax Matters Concerning Greenwich
Schedule 5.2 UNC Outstanding Options, Warrants, Subscriptions or Other Rights
Schedule 5.4 UNC Required Consents
Schedule 5.6 Adverse Changes Affecting UNC
Schedule 5.8 UNC Litigation
Schedule 5.9 Certain Permitted Liens
Schedule 5.11 UNC Labor Matters
Schedule 5.12 UNC Benefit Plans
Schedule 5.13 Tax Matters Concerning UNC
Schedule 5.15 Transactions With Affiliates by UNC
Schedule 6.8A Certain Agreements to be Terminated Prior to Closing
Schedule 6.8B Amendments to Certain Leases to be Effected Before Closing
Schedule 6.9 Form of UNC Affiliate Letter
Schedule 6.14 Certain UNC Shareholders
iv
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement"), made and entered into and executed this 9th day of March 1997, by
and between GREENWICH AIR SERVICES, INC., a Delaware corporation ("Greenwich"),
CONDOR ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary
of Greenwich ("Merger Sub"), and UNC INCORPORATED, a Delaware corporation
("UNC"), amends and restates in its entirety that certain Agreement and Plan of
Reorganization, dated as of February 13, 1997 (the "Agreement Date") by and
between Greenwich and UNC (the "Prior Agreement").
RECITALS
Greenwich and UNC have heretofore entered into the Prior Agreement,
pursuant to which Greenwich agreed (subject to the terms and conditions set
forth therein) to acquire all of the outstanding "UNC Common Stock Equivalents"
(which term includes issued and outstanding shares of UNC Common Stock and
shares of UNC Common Stock issuable upon conversion of shares of UNC Class B
Preferred Stock and the exercise of currently outstanding options to acquire
shares of UNC Common Stock) at a value of not less than $14.00 per UNC Common
Stock Equivalent (subject to adjustment) in a merger of UNC with and into
Condor. The consideration payable to the holders of UNC Common Stock Equivalents
pursuant to the Prior Agreement was payable in shares of Greenwich Class B
Common Stock or, to the extent elected by each such holder (and subject to the
limitations contained in the Prior Agreement), in cash at the rate of $14.00 per
UNC Common Stock Equivalent.
Simultaneously with the execution of this Agreement, Greenwich is entering
into the GE-Greenwich Merger Agreement (as defined below), pursuant to which GE
has agreed (subject to the conditions therein set forth) to acquire all of the
issued and outstanding common stock of Greenwich.
In connection with the foregoing transaction, the Boards of Directors of
Greenwich and UNC have determined that it is in the best interests of the
respective stockholders of Greenwich and UNC, and accordingly Greenwich and UNC
have agreed, to amend and restate the Prior Agreement to provide for the
acquisition by Greenwich of all outstanding UNC Common Stock Equivalents for
cash at the rate of $15.00 per UNC Common Stock Equivalent, all on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants, agreements and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
In addition to the other terms defined in this Agreement, as used herein,
the following terms shall have the meanings set forth below:
Section 1.1. "Agreement" shall mean this Amended and Restated Agreement
and Plan of Merger (including the Recitals hereto), together with the
Certificate of Merger and other Exhibits and Schedules attached hereto, as
amended from time to time in accordance with the terms hereof.
Section 1.2. "Affiliate" of any specified Person shall mean any other
Person directly or indirectly controlling or controlled by or under common
control with such specified Person. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
Section 1.3. "Affiliated Group" shall mean an affiliated group as defined
in Section 1504 of the Code (or any analogous combined, consolidated or unitary
group defined under any domestic or foreign Tax law) of which any of UNC and UNC
Subsidiaries or Greenwich and Greenwich Subsidiaries are members.
Section 1.4. "AlliedSignal Agreements" shall mean the collective reference
to the following agreements, as amended from time to time: (a) the Asset and
Stock Purchase Agreement, dated May 26, 1994 between LDC Aviation Services, Inc.
("▇▇▇▇▇▇▇") and AlliedSignal Corporation ("AlliedSignal"); (b) the agreement
dated April 25, 1996 between UNC and AlliedSignal, which expires on December 31,
1997 and authorizes UNC to perform repairs on certain AlliedSignal parts and
components; and (c) the operating agreement dated June 24, 1994 between ▇▇▇▇▇▇▇
and AlliedSignal expiring June 30, 2009; copies of all of which AlliedSignal
Agreements have been furnished to Greenwich.
Section 1.5. "Audited 1996 Statements" shall mean the audited consolidated
balance sheet as at December 31, 1996 of the UNC Companies, together with the
related audited consolidated statement of income, statement of cash flows and
statement of stockholders' equity, and with all applicable notes and schedules,
all of which, when issued will have been audited by the UNC Auditors, in
accordance with GAAP and Regulation S-X, as promulgated under the Securities
Act.
Section 1.6. "Certificate of Merger" shall mean the certificate of merger
to be filed by the Constituent Corporations, in form and content reasonably
satisfactory to counsel to UNC and Greenwich.
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Section 1.7. "Closing" shall have the meaning given in Section 10.1, and
the term "Closing Date" shall mean the date on which the Closing occurs.
Section 1.8. "Code" shall mean, as appropriate, the Internal Revenue Code
of 1954 or of 1986, each as amended.
Section 1.9. "Confidentiality Agreement" shall mean the Confidentiality
Agreement dated November 8, 1996 between UNC and Greenwich.
Section 1.10. "Constituent Corporations" shall mean UNC and Merger Sub,
which shall be the parties to the Merger.
Section 1.11. "Contract" shall mean any contract, agreement, lease,
license, arrangement, understanding, relationship or commitment, written or
oral.
Section 1.12. "DGCL" shall mean the Delaware General Corporation Law, as
amended.
Section 1.13. "▇.▇. ▇▇▇▇▇▇" shall mean ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
financial advisors to UNC.
Section 1.14. "Effective Time" has the meaning given in Section 3.2.
Section 1.15. "Employee Plan Event" shall mean, with respect to any
Employee Plan relating to the operations of any of the UNC Companies, any of the
events described in clauses (i) through (xi) below, in each case, as of the date
hereof and as of the Closing Date, as applicable:
(i) a "reportable event" (within the meaning of Section 4043 of
ERISA) for which the requirement of notice within 30 days to the PBGC is
not waived or which is described in 29 C.F.R. Section 2615.12 or 2615.15;
(ii) the failure to meet the minimum funding standard of Section 412
of the Code (whether or not waived in accordance with Section 412(d) of
the Code) or the failure to make by its due date a required installment
under Section 412(m) of the Code;
(iii) the provision by the administrator of any plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan
in a distress termination described in Section 401(c) of ERISA;
(iv) the withdrawal from any plan during a plan year by a
"substantial employer" as defined in Section 4001(a)(2) of ERISA resulting
in liability pursuant to Section 4062(e) or Section 4063 of ERISA;
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(v) the institution by the PBGC of proceedings to terminate any
plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination or the appointment of a trustee to
administer, any plan;
(vi) the imposition of liability pursuant to Section 4064 or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the complete or partial withdrawal (within the meaning of
Sections 4203 and 4205 of ERISA) from any multiemployer plan if there is
any potential liability therefor, or the receipt of notice from any
multiemployer plan that it is in reorganization or insolvency pursuant to
Sections 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Sections 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to
the imposition of fines, penalties, taxes or related charges under Chapter
43 of the Code or under Section 409, 502(c), 504(1) or 4071 of ERISA in
respect of any plan;
(ix) the assertion of a material claim (other than routine claims
for benefits) against any plan other than a multiemployer plan or the
assets of any plan, or against the plan sponsor in connection with any
such plan;
(x) receipt from the IRS of notice of the failure of any Qualified
Plan to qualify under Section 401(a) of the Code, or the failure of any
trust forming part of any Qualified Plan to qualify for exemption from
taxation under Section 501(a) of the Code;
(xi) the imposition of a lien on any assets of the person
maintaining or contributing to any plan pursuant to Sections 401(a)(29) or
412(n) of the Code or pursuant to ERISA.
Section 1.16. "Employee Plan" shall mean, as of the date hereof and as of
the Closing Date, as applicable, any plan, contract, commitment, program,
policy, arrangement, understanding or practice providing benefits to any
employee, former employee, director or agent of any of the UNC Companies
(whether or not the Person maintains, contributes to, or is bound by any such
plan, contract, commitment, program, policy, arrangement, understanding or
practice, or under which any of the UNC Companies contributes, has contributed
or has any obligation to contribute), including, without limitation (i) any
"employee benefit plan" (within the meaning of Section 3(3) of ERISA), (ii) any
profitsharing, deferred compensation, bonus, stock option, stock purchase,
pension, retainer, consulting, retirement, severance, welfare or incentive plan,
contract, commitment, program, policy, arrangement, understanding or practice,
(iii) any plan, contract, commitment, program, policy, arrangement,
understanding or practice providing for "fringe benefits" or perquisites,
including, without limitation, benefits relating to automobiles, clubs,
vacation, child care, parenting, sabbatical or sick leave and medical, dental,
hospitalization, life insurance and other types of insurance, (iv) any Pension
Plan, and (v) any Multiemployer Plan.
-4-
Section 1.17. "Environmental Assessment" shall mean any one or more
reviews, studies and/or reports by an independent environmental consultant,
which may include, without limitation, one or more Phase I and/or Phase II
studies, updates thereof, compliance audits, health and safety audits, and
related testing for hazardous substances, toxic substances, hazardous wastes
and/or toxic pollutants (as defined under Environmental Laws), for the purpose
of determining whether any of the UNC Companies is in compliance with
Environmental Laws, and/or whether there exists any condition or circumstance
which authorizes or may require any corrective action, cleanup, removal or other
remedial action under Environmental Laws on the part of any of the UNC Companies
or any Real Estate owned or leased by any of the UNC Companies.
Section 1.18. "Environmental Laws" shall mean and include all federal,
state and local laws, statutes, regulations, permits, orders, ordinances, codes,
rules and other governmental restrictions, requirements and duties, including
common law, relating to the treatment, storage, disposal or release of air
pollutants, water pollutants or processed waste water or otherwise relating to
human health, the environment or hazardous substances, including but not limited
to the Federal Solid Waste Disposal Act; the Federal Clean Air Act (including,
without limitation, the Clean Air Act Amendments of 1990); the Federal Water
Pollution Control Act; the Hazardous Materials Transportation Act; the Federal
Toxic Substances Control Act; the Federal Resource Conservation and Recovery Act
of 1976; the National Environmental Policy Act; the Federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") and
similar state laws, all amendments to any of the foregoing statutes, and all
regulations promulgated by any federal or state agencies, including the
Environmental Protection Agency, regulations of the Nuclear Regulatory Agency,
and regulations of any state department of natural resources or state
environmental protection agency now or at any time hereinafter in effect.
The terms "hazardous substances", "release", "respond", "response", and
all variations and derivatives thereof shall mean and include, without
limitation, all radioactive materials, asbestos and asbestos-containing
materials, PCBs, petroleum products and by-products, all solid, semi-solid,
liquid or gaseous substances which are toxic, ignitable, corrosive, carcinogenic
or otherwise dangerous to human, plant or animal health, and all substances
defined or listed as "hazardous substances", "toxic substances", "hazardous
waste", "toxic pollutants" in, or otherwise regulated under any Environmental
Law, including, without limitation, the meanings ascribed to them in CERCLA.
Section 1.19. "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
Section 1.20. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
Section 1.21. "GAAP" shall mean generally accepted accounting principles
as in effect in the United States of America at the time of the preparation of
the subject financial statement.
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Section 1.22. "GE" shall mean General Electric Company, a New York
corporation.
Section 1.23. "Governmental Authority" shall mean any federal, state,
provincial, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, or any court, in each case whether of the
United States, any of its possessions or territories, or of any foreign nation.
Section 1.24. "Greenwich" shall mean Greenwich Air Services, Inc., a
Delaware corporation.
Section 1.25. "Greenwich Class A Stock" shall mean the Class A voting
common stock, $.01 par value per share, of Greenwich.
Section 1.26. "Greenwich Class B Stock" shall mean the Class B nonvoting
common stock of Greenwich, $.01 par value per share.
Section 1.27. "GE/Greenwich Merger" shall mean the merger of Greenwich
with and into GE or a wholly-owned subsidiary of GE pursuant to the GE-Greenwich
Merger Agreement.
Section 1.28. "GE-Greenwich Merger Agreement" shall mean the Agreement and
Plan of Merger, dated ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇ Merger Corp., a wholly-owned
subsidiary of GE ("Mergerco"), and Greenwich pursuant to which it is
contemplated that as at the effective time of the GE/Greenwich Merger, Greenwich
will be merged with and into Mergerco, with Mergerco as the surviving
corporation of such GE/Greenwich Merger; a true copy of which GE-Greenwich
Merger Agreement has been furnished to UNC.
Section 1.29. "Indebtedness" shall mean, with respect to UNC, any UNC
Subsidiary and the UNC Companies, as a consolidated whole, as applicable (a) all
indebtedness, whether or not contingent, for borrowed money, (b) all obligations
for the deferred purchase price of property or services except trade accounts
payable and accrued liabilities that arise in the ordinary course of business,
(c) all obligations evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property acquired (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, under acceptance, letter of credit or similar
facilities, (g) all obligations to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock or any warrants, rights or options
to acquire such capital stock, valued, in the case of redeemable preferred
stock, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends but only to the extent such obligation is
payable (i) at a fixed or determinable date, whether by operation of a sinking
fund or otherwise, (ii) at the option of any other Person or (iii) upon the
occurrence of a condition not solely within their control, such as a redemption
required to be made out of
-6-
future earnings, (h) all Indebtedness of others referred to in clauses (a)
through (f) above guaranteed directly or indirectly in any manner or in effect
guaranteed directly or indirectly through an agreement (A) to pay or purchase
such Indebtedness or to advance or supply funds for the payment or purchase of
such Indebtedness, (B) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (C) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered)
or (D) otherwise to assure a creditor against loss, and (i) all Indebtedness
referred to in clauses (a) through (f) above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any encumbrance on property (including, without limitation, accounts
and contract rights) owned, even though payment of such Indebtedness has not
been assumed or become a liability.
Section 1.30. "HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
Section 1.31. "IRS" shall mean the Internal Revenue Service.
Section 1.32. "Knowledge of Greenwich" shall mean the actual knowledge,
after due inquiry, of those officers Greenwich identified in Schedule 1.45.
Section 1.33. "Knowledge of UNC" shall mean the actual knowledge, after
due inquiry, of those officers of UNC identified in Schedule 1.46.
Section 1.34. "Law" shall mean any federal, state, provincial, local or
other law or governmental requirement of any kind, and the rules, regulations
and orders promulgated thereunder.
Section 1.35. "Merger" shall have the meaning given in Section 2.1.
Section 1.36. "Merger Consideration" means the amounts payable to holders
of shares of UNC Stock as described in Section 2.2.
Section 1.37. "Multiemployer Plan" shall mean an Employee Plan that is a
"multiemployer plan" within the meaning of Section 3(37) of ERISA, to which any
of the Sellers or Businesses contributes or has contributed or has or has had an
obligation to contribute.
Section 1.38. "Nasdaq" shall mean The Nasdaq National Market.
Section 1.39. "NYSE" shall mean The New York Stock Exchange, Inc.
Section 1.40. "Partnership" shall mean any limited or general partnership,
joint venture or other business association, other than a Subsidiary, in which
any party has a direct or indirect
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interest (collectively, "Partnerships"), all of such Partnerships of Greenwich
being listed on Schedule 1.53A attached hereto and all of such Partnerships of
UNC being listed on Schedule 1.53B attached hereto.
Section 1.41. "Pension Plan" shall mean an Employee Plan, other than a
Multiemployer Plan, that is either (a) covered by Title IV of ERISA or subject
to the minimum funding standards of Section 412 of the Code, or (b) an Employee
Plan in the nature of a defined contribution or defined benefit pension plan
under the laws of the United Kingdom and/or Scotland.
Section 1.42. "Person" shall mean any individual, partnership, firm,
corporation, limited liability company, association, trust, unincorporated
organization or other entity, as well as any syndicate or group that would be
deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
Section 1.43. "Permits" shall mean permits, licenses and governmental
authorizations, registrations and approvals.
Section 1.44. "Real Estate" shall mean, with respect to any of the UNC
Companies, as applicable, all of the fee or leasehold ownership right, title and
interest of such UNC Company, in and to all real estate and improvements owned
or leased by any of the UNC Companies and which is used by any of the UNC
Companies in connection with the operation of the UNC Businesses, including
without limitation, all of the real estate and improvements described on
Schedule 1.60.
Section 1.45. "Schedules" shall mean the confidential disclosure schedules
prepared by UNC and Greenwich, respectively, annexed (or deemed annexed pursuant
to Section 12.12) to this Agreement and made a part hereof, as the same may be
modified or updated by agreement of the parties through and including the
Closing Date. A disclosure contained in any one Schedule shall be deemed to be a
disclosure for any and all purposes hereunder.
Section 1.46. "SEC" shall mean the Securities and Exchange Commission.
Section 1.47. "Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.48. "Series B Preferred Stock Purchase Agreement" shall mean the
securities purchase agreement, dated as of October 4, 1995 between UNC and
Network m Holdings, LDC, ▇▇▇▇▇▇ Investment Company, Iron City Partners, Inc.,
Ariel Fund Ltd. and Pequod Investments, L.P., pursuant to which UNC sold for $25
million an aggregate of 250,000 shares of UNC Series B Preferred Stock.
Section 1.49. "Stock Options" shall mean the collective reference to (a)
the various types of UNC stock options which are authorized for issuance under
the Stock Option Plans, (b) the outstanding warrants to purchase shares of UNC
Common Stock, all of which are reflected
-8-
on Schedule 5.2, and (c) the right to acquire shares of UNC Common Stock
pursuant to the 7-1/2% UNC Convertible Debentures.
Section 1.50. "Stock Option Plans" shall mean the individual and
collective reference to all qualified and nonqualified stock option plans,
incentive stock option plans, non-employee directors' stock option plans and
other rights to purchase shares of UNC Common Stock granted to employees, and
which are summarized and disclosed on Schedule 5.2.
Section 1.51. "Subsidiary" shall mean (i) each corporate entity with
respect to which a party has the right to vote (directly or indirectly Through
one or more other entities or otherwise) shares representing 50% or more of the
votes eligible to be cast in the election of directors of such entity, and (ii)
each other corporate entity which constitutes a "significant subsidiary," as
defined in Rule 1-02 of Regulation S-X adopted under the Exchange Act
(collectively, "Subsidiaries"), all of the Subsidiaries of Greenwich being
listed on Schedule 1.39 and all of the Subsidiaries of UNC being listed on
Schedule 1.84.
Section 1.52. "Stockholders' Meeting" shall mean the special or annual
meeting of stockholders of UNC called pursuant to Section 3.1 to consider and
approve the transactions contemplated herein, and any adjournments thereof.
Section 1.53. "UNC" shall mean UNC Incorporated, a Delaware corporation.
Section 1.54. "Businesses" shall mean, as of the specific date referenced,
the collective reference to the UNC ▇▇▇▇▇▇▇ Business, the UNC Manufacturing
Business and the UNC ▇▇▇▇ ▇▇▇▇▇▇▇ Business, as presently conducted by the UNC
Companies and their respective business operations.
Section 1.55. "UNC Common Stock" shall mean the Common Stock, $0.20 par
value per share, of UNC.
Section 1.56. "UNC Companies" shall mean UNC, its Subsidiaries and the
Partnerships in which it has an interest.
Section 1.57. "UNC Financial Statements" shall mean (a) the audited
consolidated balance sheet of UNC as of December 31,1995, and the audited
consolidated statements of earnings, stockholders' equity and cash flows for the
fiscal year then ended, together with the notes thereto, and (b) the UNC SEC
Reports, true and correct copies of which have been provided to Greenwich by
UNC.
Section 1.58. "UNC ▇▇▇▇▇▇▇ Business" shall mean the overhaul, maintenance
and repair of gas turbine aircraft and aircraft engines and accessories,
airframe retrofits and completion and spare parts distribution, primarily for
business aircraft.
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Section 1.59. "UNC ▇▇▇▇ ▇▇▇▇▇▇▇ Business" shall mean the provision of
contract services to United States and foreign military and other government
agencies, consisting primarily of aircraft maintenance and pilot training.
Section 1.60. "UNC Manufacturing Business" shall mean the provision of
specialized aviation product manufacturing and repair services on an outsourced
basis for the major engine and airframe OEMs and the provision of manufactured
products and repairs directly to the United States military.
Section 1.61. "UNC Material Adverse Effect" shall mean any circumstances,
change in, or effect on, the UNC Companies, when taken as a consolidated whole,
or affecting the UNC ▇▇▇▇▇▇▇ Business, the UNC ▇▇▇▇ ▇▇▇▇▇▇▇ Business or the UNC
Manufacturing Business, whether individually or collectively as to any one or
more of such UNC Businesses, which is, or could reasonably be expected to in the
future be, materially adverse to the operations, assets or liabilities, employee
relationships, customer or supplier relationships, earnings or results of
operations, financial budgets and forecasts or the business prospects and
condition (financial or otherwise) of the UNC Companies or any one or more of
UNC Businesses, whether individually or taken as a consolidated whole with
respect to the UNC Companies.
Section 1.62. "UNC Material Contracts" shall mean the types of Contracts
referred to in Section 5.10 of this Agreement to which UNC or any of UNC
Subsidiaries is a party signatory, including, without limitation, the
AlliedSignal Agreements.
Section 1.63. "UNC Notes" shall mean the collective reference to (a) UNC's
9-1/8% $100 million principal amount Senior Notes Due 2003 (the "9-1/8% UNC
Notes"), (b) UNC's 11% $125 million principal amount Senior Subordinated Notes
Due 2006 (the "11% UNC Notes"), and (c) UNC's 7-1/2% $64.8 million Junior
Convertible Subordinated Debentures Due 2006 (the "7-1/2% UNC Convertible
Debentures").
Section 1.64. "UNC Preferred Stock" shall mean the collective reference to
12,000,000 authorized shares of UNC preferred stock, $1.00 par value per share,
of which (a) 250,000 shares of Series A Junior Participating Preferred Stock are
authorized for issuance, (b) 250,000 shares of UNC Series B Preferred Stock are
authorized, and (c) 250,000 of Series C Senior Cumulative Preferred Stock are
authorized.
Section 1.65. "UNC Proxy Statement" shall mean the UNC Proxy Statement to
be distributed by UNC to its stockholders in connection with the matters to be
voted upon at the UNC Stockholders Meeting, as contemplated by Section 3.1.
Section 1.66. "UNC SEC Reports" shall mean (a) UNC's Annual Reports on
Form 10-K for the fiscal years ended December 31, 1995, December 31, 1994, and
December 31, 1993, and (b) all other documents, reports and registration
statements filed by UNC with the SEC pursuant to the Exchange Act and the
Securities Act.
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Section 1.67. "UNC Series B Preferred Stock" shall mean the 250,000
authorized, issued and outstanding shares of Series B senior cumulative
convertible UNC Preferred Stock, par value $1.00 per share.
Section 1.68. "UNC Stock" shall mean UNC Common Stock or UNC Series B
Preferred Stock.
Section 1.69. "UNC Subsidiary" or "UNC Subsidiaries" shall mean the
singular or plural reference, as the case may be, to any one or more direct or
indirect Subsidiaries of UNC, all of which are listed (including their states of
incorporation and percentage of outstanding capital stock directly or indirectly
beneficially owned by UNC) on Schedule 1.84.
Section 1.70. "Taxes" shall mean any and all taxes, levies, imposts,
duties, assessments, charges and withholdings imposed or required to be
collected by or paid over to any federal, state, local or foreign Governmental
Authority or any political subdivision thereof, including without limitation
income, gross receipts, ad valorem, value added, minimum tax, franchise, sales,
use, excise, license, real or personal property, unemployment, disability, stock
transfer, mortgage recording, estimated, withholding or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, and including any
interest, penalties, fines, assessments or additions to tax imposed in respect
of the foregoing, or in respect of any failure to comply with any requirement
regarding Tax Returns.
Section 1.71. "Tax Return" shall mean any report, return, information
statement, payee statement or other information required to be provided to any
federal, state, local or foreign Governmental Authority, or otherwise retained,
with respect to Taxes or the UNC Benefit Plans.
Section 1.72. "Salomon" shall mean Salomon Brothers Inc. financial
advisors to Greenwich.
Section 1.73. "UNC 1996 Management Statements" shall mean the unaudited
financial statements of UNC included in confidential Annex 1.73 to this
Agreement.
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ARTICLE II
THE MERGER
Section 2.1. The Merger.
(a) Subject to the terms and conditions of this Agreement, at the
Effective Time, Merger Sub shall be merged with and into UNC (the "Merger") and
the separate existence of Merger Sub shall thereupon cease, with UNC being the
surviving corporation in the Merger (the "Surviving Corporation"). Upon the
effectiveness of the Merger, UNC shall possess all of the rights, privileges,
powers and franchises of all of the Constituent Corporations, and all property,
real, personal and mixed, and all debts due to any of the Constituent
Corporations on whatever account, including stock subscriptions and all other
things in action, of or belonging to each of the Constituent Corporations shall
be vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of the
Constituent Corporations, and the title to any Real Estate vested by deed or
otherwise in any of the Constituent Corporations shall not revert or be in any
way impaired by reason of the Merger; but all rights of creditors and all liens
upon any property of any of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to the Surviving Corporation, and may be
enforced against it to the same extent as if said debts, liabilities and duties
had been incurred or contracted by it.
(b) The Certificate of Merger shall be in form and substance
satisfactory to the parties hereto and their respective legal counsel.
(c) The Certificate of Incorporation of Merger Sub as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation, and thereafter may be amended in
accordance with its terms and as provided by law.
(d) The Bylaws of Merger Sub as in effect at the Effective Time
shall be the Bylaws of the Surviving Corporation.
(e) The entire board of directors of the Surviving Corporation shall
consist of (i) the existing directors of Merger Sub at the Effective Time or
(ii) such other Persons as shall be determined solely by GE pursuant to the
terms and conditions of the GE-Greenwich Merger Agreement (the "Surviving
Corporation Board"). The members of the Surviving Corporation Board shall serve
until their respective successors are duly elected and qualified in the manner
provided in the Certificate of Incorporation and Bylaws of the Surviving
Corporation, or as otherwise provided by law. All of the members of the Board of
Directors of UNC shall tender their written resignations effective as of the
Effective Time.
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(f) The officers of the Surviving Corporation shall initially
consist of the persons listed in Schedule 2.1(f) or such other persons
acceptable to the Surviving Corporation Board; which officers shall serve until
their successors are duly elected and qualified in the manner provided in the
Certificate of Incorporation and Bylaws of the Surviving Corporation, or as
otherwise provided by law.
(g) Restructuring. The parties agree that, at the request of
Greenwich, one or more other Persons may be added or substituted as Constituent
Corporations, and that a Constituent Corporation other than UNC may be
designated as the Surviving Corporation, in the Merger, provided that there is
no diminution or impairment of the rights and benefits inuring to the benefit of
the stockholders, officers, or directors of UNC hereunder and no increase in the
obligations or potential obligations of any of the foregoing as a result
thereof.
Section 2.2. Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of Merger Sub, UNC, or any holder
of the securities of either:
(a) Common Shares. Each share of UNC Common Stock issued and
outstanding immediately before the Effective Time (other than Treasury Shares to
be canceled pursuant to Section 2.2(c) and any Dissenting Shares (as hereinafter
defined)) shall be canceled and shall be converted automatically into the right
to receive an amount equal to $15.00 in cash (the "Merger Consideration")
payable, without interest, to the holder of such share upon surrender, in the
manner provided in Section 2.3, of the certificate that formerly evidenced such
share.
(b) Preferred Shares. Each share of UNC Series B Preferred Stock
issued and outstanding immediately before the Effective Time shall be canceled
and shall be converted automatically into the right to receive an amount equal
to $15.00 in cash multiplied by the number of shares (including any fraction of
a share) of UNC Common Stock into which such share of UNC Series B Preferred
Stock is convertible immediately before the Effective Time.
(c) Treasury Shares. All issued and outstanding shares of UNC Stock
which are held by IJNC, any Subsidiary of UNC, Greenwich, Merger Sub or any
other Subsidiary of Greenwich ("Treasury Shares") shall be canceled and no
consideration shall be issued in respect thereof.
(d) Dissenting Shares. Notwithstanding the foregoing provisions or
any other provision of this Agreement to the contrary, shares of UNC Stock held
by any holder who shall have taken the necessary steps under the DGCL to dissent
and demand payment and is otherwise entitled to such payment under the DGCL, if
the DGCL provides for such payment in connection with the Merger ("Dissenting
Shares"), shall not be converted into the right to receive Merger Consideration
at or after the Effective Time unless and until the holder of such Dissenting
Shares withdraws his or her demand for such appraisal with the consent of UNC,
if required by the DGCL, or becomes ineligible for such appraisal. If a holder
of Dissenting Shares shall withdraw
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his or her demand for such appraisal with the consent of UNC, if required by the
DGCL, or shall become ineligible for such appraisal (through failure to perfect
or otherwise), then, as of the Effective Time or the occurrence of such event,
whichever last occurs, such holder's Dissenting Shares shall automatically be
converted into and represent the right to receive the Merger Consideration as
provided above. UNC shall give Greenwich (i) prompt notice of any written
demands for appraisal, withdrawals of demands for appraisal and any other
instruments served pursuant to Section 262 of the DGCL received by UNC, and (ii)
the opportunity to direct all negotiations and proceedings with respect to
demands for appraisal under Section 262 of the DGCL. UNC will not voluntarily
make any payment with respect to any demands for appraisal and will not, except
with the prior written consent of Greenwich, settle or offer to settle any such
demands. Each holder of Dissenting Shares shall have only such rights and
remedies as are granted to such a holder under Section 262 of the DGCL.
(e) Shares of Merger Sub. Each share of Common Stock, par value $.01
per share, of Merger Sub issued and outstanding immediately before the Effective
Time shall be converted into and exchanged for one validly issued, fully paid
and nonassessable share of Common Stock, par value $.01 per share, of the
Surviving Corporation.
Section 2.3. Surrender of Certificates: Stock Transfer Books. (a) Before
the Effective Time, Merger Sub shall designate a bank or trust company to act as
agent (the "Paying Agent") for the holders of shares of UNC Stock in connection
with the Merger. From and after the Effective Time Greenwich shall cause funds
to be deposited with the Paying Agent sufficient to pay the amounts to which the
holders of shares of UNC Stock shall become entitled pursuant to Section 2.2.
Such funds shall be invested by the Paying Agent as directed by the Surviving
Corporation, provided that such investments shall be in obligations of or
guaranteed by the United States of America or of any agency thereof and backed
by the full faith and credit of the United States of America, in commercial
paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇'▇ Investors Services, Inc.
or Standard & Poor's Corporation, respectively, or in deposit accounts,
certificates of deposit or banker's acceptances of, repurchase or reverse
repurchase agreements with, or Eurodollar time deposits purchased from,
commercial banks with capital, surplus and undivided profits aggregating in
excess of $1 billion (based on the most recent financial statements of such bank
which are then publicly available to the SEC or otherwise).
(b) Promptly after the Effective Time, the Surviving Corporation
shall cause to be mailed to each person who was, at the Effective Time, a holder
of record of shares of UNC Stock entitled to receive the Merger Consideration
pursuant to Section 2.2 a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the certificates
evidencing such shares of UNC Stock ("UNC Certificates") shall pass, only upon
proper delivery of the UNC Certificates to the Paying Agent) and instructions
for use in effecting the surrender of the UNC Certificates pursuant to such
letter of transmittal. Upon surrender to the Paying Agent of a UNC Certificate,
together with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and such other documents as may be
required pursuant to such instructions, the holder of such UNC Certificate shall
be entitled to receive in exchange therefor the Merger Consideration for each
share of UNC
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Stock formerly evidenced by such UNC Certificate, and such UNC Certificate shall
then be cancelled. No interest shall accrue or benefit the holder of such UNC
Certificate.
(c) At any time after six (6) months from the Effective Time, the
Surviving Corporation shall be entitled to require the Paying Agent to deliver
to it any funds which had been made available to the Paying Agent and not
disbursed to holders of shares of UNC Stock (including, without limitation, all
interest and other income received by the Paying Agent in respect of all funds
made available to it), and thereafter such holders shall be entitled to look to
the Surviving Corporation (subject to abandoned property, escheat and other
similar laws) only as general creditors thereof with respect to any Merger
Consideration that may be payable upon due surrender of the UNC Certificates
held by them.
(d) After the Effective Time, there shall be no transfers on the
stock transfer books of UNC of any shares of UNC Stock that were outstanding
immediately before the Effective Time. If, after the Effective Time, UNC
Certificates are presented to Greenwich or UNC for transfer, they shall be
cancelled and exchanged for payment of the applicable amount of Merger
Consideration as provided in Section 2.2, in accordance with the procedures set
forth in this Section 2.3.
(e) Notwithstanding the foregoing, neither Greenwich nor UNC shall
be liable to any holder of shares of UNC Common Stock or UNC Series B Preferred
Stock for any payment of the per share cash portion of the Merger Consideration
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
Section 2.4. Transfer Taxes. If cash is to be paid to a person other than
the holder in whose name the certificate representing shares of UNC Stock
surrendered in exchange therefor is registered, it shall be a condition of such
exchange that the certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting such
exchange shall pay to the Paying Agent any transfer or other taxes required by
reason of the payment of such cash to a person other than the registered holder
of the certificate surrendered or shall establish to the satisfaction of the
Paying Agent that such tax has been paid or is not applicable.
Section 2.5. Stock Options. All unexercised UNC Stock Options which shall
be outstanding as at the Effective Time shall be canceled and converted into the
right to receive, in full consideration of such securities, a cash payment equal
to the product of: (a) the aggregate number of shares of UNC Common Stock
issuable upon exercise of such unexercised UNC Stock Options (the "Unexercised
Option Shares") by (b) the difference between $15.00 and the applicable exercise
price per share attributable to such Unexercised Option Shares (the "Spread").
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ARTICLE III
STOCKHOLDER APPROVAL
Section 3.1. Stockholder Approvals.
(a) Greenwich hereby covenants to UNC that Greenwich shall perform
its obligations under the GE-Greenwich Merger Agreement with respect to the
submission of the GE/Greenwich Merger Agreement for consideration and approval
to the holders of shares of Greenwich Class A Stock.
(b) This Agreement shall be submitted for consideration and approval
to the holders of shares of UNC Common Stock, at a special or annual meeting of
stockholders duly held for such purpose by UNC. UNC shall promptly take all
steps necessary to duly call, give notice of, convene, and hold such meeting as
soon as practicable following the date upon which the UNC Proxy Statement shall
be approved by the SEC.
(c) The UNC Board of Directors shall recommend that the UNC
stockholders approve and adopt this Agreement and the Certificate of Merger and
the transactions contemplated hereby and thereby, and such recommendation shall
be contained in the UNC Proxy Statement. The Greenwich Board of Directors shall
recommend that the Greenwich stockholders entitled to vote thereon approve the
GE-Greenwich Merger Agreement and the transactions contemplated thereby, and
such recommendation shall be contained in the Proxy Statement of Greenwich in
connection with the GE/Greenwich Merger.
Section 3.2. Effective Time of the Merger. As promptly as practicable
following the satisfaction or, if permissible, waiver of the conditions set
forth in Articles VII, VIII, and LO, the parties hereto shall cause the Merger
to be consummated by filing the Certificate of Merger with the Secretary of
State of the State of Delaware in accordance with the DGCL, and the Merger shall
become effective in accordance with the terms of the Certificate of Merger at
the time and date contemplated therein (such time and date being referred to
herein as the "Effective Time").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GREENWICH AND MERGER SUB
Each of Greenwich and Merger Sub represents and warrants to UNC as
follows:
Section 4.1. Organization and Authority of the Greenwich and Merger Sub.
Each of Greenwich and Merger Sub is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of organization. Each of
Greenwich and Merger Sub has full corporate or partnership power to carry on its
respective business as it is now being conducted and to own, operate and hold
under lease its assets and properties as, and in the places where, such
properties and assets now are owned, operated or held. Each of Greenwich and
Merger Sub
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is duly qualified as a foreign entity to do business, and is in good standing,
in each jurisdiction where the failure to be so qualified would have a material
adverse effect on the ability of each of Greenwich and Merger Sub to consummate
the Merger.
Section 4.2. Authority Relative to this Agreement. The execution, delivery
and performance of this Agreement and of all of the other documents and
instruments required hereby by Greenwich and Merger Sub are within the corporate
power of Greenwich and Merger Sub. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Greenwich and Merger Sub and no other
corporate proceedings on the part of Greenwich and Merger Sub are necessary to
authorize this Agreement or to consummate the transactions contemplated herein
(other than the approval of the GE-Greenwich Merger Agreement by a majority of
the total votes cast by holders of Greenwich Class A Stock). This Agreement and
all of the other documents and instruments required hereby have been or will be
duly and validly executed and delivered by Greenwich and Merger Sub and
(assuming the due authorization, execution and delivery hereof and thereof by
UNC) constitute or will constitute valid and binding agreements of Greenwich and
Merger Sub, enforceable against Greenwich and Merger Sub in accordance with
their respective terms, except to the extent that enforceability may be governed
by equitable principles, applicable bankruptcy laws, and other rights affecting
creditors generally.
Section 4.3. Consents and Approvals: No Violations. Except for (i) any
applicable requirements of the Securities Act, the Exchange Act, the HSR Act,
Nasdaq and any applicable filings under state securities, "Blue Sky" or takeover
laws, (ii) the filing and recordation of a certificate of merger as required by
the DGCL and (iii) those required filings, registrations, consents and approvals
listed in Schedule 4.4, no filing or registration with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
or required in connection with the execution and delivery of this Agreement by
Greenwich and Merger Sub or for the consummation by Greenwich and Merger Sub of
the transactions contemplated by this Agreement, where the failure to obtain
such permit, authorization, consent or approval would have a material adverse
effect on the ability of Greenwich and Merger Sub to consummate the Merger.
Assuming that all filings, registrations, permits, authorizations, consents and
approvals contemplated by the immediately preceding sentence have been duly made
or obtained, neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated hereby by Greenwich and
Merger Sub will (i) conflict with or result in any breach of any provision of
the Certificates of Incorporation, bylaws, partnership or joint venture
agreements or other organizational documents of Greenwich or Merger Sub, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, or otherwise result in any diminution of
any of the rights of Greenwich or Merger Sub with respect to, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
Contract or other instrument or obligation to which Greenwich or Merger Sub is a
party or by which it or any of them or any of their properties or assets may be
bound, or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Greenwich or Merger Sub or any of their properties or
assets, except. in the case of subsections (ii) or (iii) above, for
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violations, breaches or defaults that would not have a material adverse effect
on the ability of Greenwich and Merger Sub to consummate the Merger and that
will not prevent or delay the consummation of the transactions contemplated
hereby.
Section 4.4. Fees and Expenses of Brokers and Others. None of Greenwich,
Merger Sub or any Affiliates of Greenwich (a) has had any dealings, negotiations
or communications with any broker or other intermediary in connection with the
transactions contemplated by this Agreement, (b) is committed to any liability
for any brokers' or finders' fees or any similar fees in connection with the
transactions contemplated by this Agreement, or (c) has retained any broker or
other intermediary to act on its behalf in connection with the transactions
contemplated by this Agreement, except that Greenwich has engaged Salomon to
represent it as its financial advisor in connection with the transactions
contemplated by this Agreement, and shall pay all of Salomon's fees and expenses
in connection with such engagement.
Section 4.5. Accuracy of Information . Neither this Agreement nor any
other document provided by Greenwich or Merger Sub or their employees or agents
to UNC in connection with the transactions contemplated herein contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained therein not misleading.
Section 4.6. GE-Greenwich Merger Agreement. Greenwich has furnished to UNC
a true and complete copy of the GE-Greenwich Merger Agreement, which
GE/Greenwich Merger Agreement has been duly authorized by the Board of Directors
of Greenwich, and to the Knowledge of Greenwich, by the Board of Directors of
GE.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF UNC
UNC represents and warrants to Greenwich and Merger Sub as follows:
Section 5.1. Organization and Authority of the UNC Companies. Each of the
UNC Companies is duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of organization. Each of the UNC Companies
has full corporate or partnership power to carry on its respective business as
it is now being conducted and to own, operate and hold under lease its assets
and properties as, and in the places where, such properties and assets now are
owned, operated or held. Each of the UNC Companies is duly qualified as a
foreign entity to do business, and is in good standing, in each jurisdiction
where the failure to be so qualified would have a UNC Material Adverse Effect.
Schedule 1.84 constitutes a true and complete list of all of the Subsidiaries of
UNC, and Schedule 1.53B constitutes a true and complete list of all of the
Partnerships in which UNC has an interest. The copies of the Amended and
Restated Certificate of Incorporation and the Bylaws of UNC which have been
delivered to Greenwich are complete and correct and in full force and effect on
the date hereof.
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Section 5.2. Capitalization. The authorized capital stock of UNC consists
of: (a) 12,000,000 authorized shares of UNC Preferred Stock, $1.00 par value per
share, of which, on the Agreement Date (i) 250,000 shares of Series A Junior
Participating Preferred Stock are authorized, none of which are issued, (ii)
250,000 shares of Series B Preferred Stock are authorized, issued and
outstanding, and (iii) 250,000 shares of Series C Senior Cumulative Preferred
Stock are authorized, none of which are issued; and (b) 50,000,000 authorized
shares of UNC Common Stock, of which, as at December 31, 1996 (i) 18,276,681
shares of UNC Common Stock are issued and outstanding, (ii) 486,500 shares of
UNC Common Stock are held in treasury, (iii) shares of UNC Common Stock are
reserved for issuance pursuant to outstanding Stock Options granted under UNC
Stock Option Plans as described in Schedule 5.2 and (iv) an aggregate of
3,571,429 shares of UNC Common Stock are reserved for issuance upon conversion
of UNC Series B Preferred Stock. All shares of capital stock of UNC which are
outstanding as of the date hereof and which are reserved for issuance pursuant
to UNC Preferred Stock and UNC Stock Options, are duly authorized, and are, or
when issued will be, validly issued, fully paid and nonassessable, and are, or
when issued will not be, not subject to, nor were they issued in violation of,
any preemptive rights. Except as set forth in Schedule 5.2 and in this Section
5.2, there are no shares of capital stock of UNC authorized or outstanding, and
there are no subscriptions, options, conversion or exchange rights, warrants or
other agreements, claims or commitments of any nature whatsoever obligating UNC
or any UNC Subsidiary to issue, transfer, deliver or sell, or cause to be
issued, transferred, delivered or sold, additional shares of the capital stock
of UNC or any UNC Subsidiary or obligating UNC or any UNC Subsidiary to grant,
extend or enter into any such agreement or commitment. UNC has not, since
December 31, 1995, declared or paid any dividend on, or declared or made any
distribution with respect to, or authorized or effected any split-up or any
other recapitalization of, any of the UNC Common Stock, or directly or
indirectly redeemed, purchased or otherwise acquired any of its outstanding
capital stock or agreed to take any such action and will not take any such
action during the period between the date of this Agreement and the Effective
Time. Except as set forth on Schedule 5.2, there are no outstanding options,
warrants, subscriptions, conversion or exchange rights, agreements, claims,
commitments, or other rights to purchase or acquire any capital stock of UNC or
any of the other UNC Companies, and there are no Contracts pursuant to which UNC
or any of the other UNC Companies is bound to sell or issue any shares of its
capital stock, nor are there any Contracts obligating UNC or any of the other
UNC Companies to enter into or grant any such securities or rights. All
outstanding shares of UNC Common Stock are duly listed for trading on the NYSE.
(c) Set forth in Schedule 1.84 is the name, percentage ownership and
jurisdiction of incorporation of each UNC or any UNC Subsidiary. All the
outstanding shares of capital stock of each UNC Subsidiary have been validly
issued and are fully paid, nonassessable and are not subject to, nor were they
issued in violation of, any preemptive rights. All outstanding shares of capital
stock of UNC Subsidiaries are owned, directly or indirectly, by UNC, and, except
as disclosed in Schedule 1.84 or in the UNC Financial Statements, are owned free
and clear of all liens, charges, encumbrances, security interests, equities,
options, restrictions on voting rights or rights of disposition, and claims or
third party rights of whatever nature. Except for UNC Subsidiaries, UNC does not
own, directly or indirectly, any capital
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stock or other equity securities of any corporation, partnership, joint venture
or other entity or have any direct or indirect equity or ownership interest in
any corporation, partnership, joint venture or other entity, other than as
disclosed on Schedule 5.2 or Schedule 1.53B.
Section 5.3. Authority Relative to this Agreement. The execution, delivery
and performance of this Agreement and of all of the other documents and
instruments required hereby by UNC are within the corporate power of UNC. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of UNC and no other corporate proceedings on the part of UNC are
necessary to authorize this Agreement or to consummate the transactions
contemplated herein (other than, with respect to the Merger, the approval of the
Certificate of Merger by a majority of the outstanding shares of UNC Common
Stock and UNC Series B Preferred Stock at the UNC Stockholders Meeting). This
Agreement and all of the other documents and instruments required hereby have
been or will be duly and validly executed and delivered by UNC and (assuming the
due authorization, execution and delivery hereof and thereof by Greenwich)
constitute or will constitute valid and binding agreements of UNC, enforceable
against UNC in accordance with their respective terms, except to the extent that
enforceability may be governed by equitable principles, applicable bankruptcy
laws, and other rights affecting creditors generally.
Section 5.4. Consents and Approvals: No Violations. Except for (i) any
applicable requirements of the Securities Act, the Exchange Act, the HSR Act,
and any applicable filings under state securities, "Blue Sky" or takeover laws,
(ii) the filing and recordation of a certificate of merger as required by the
DGCL and (iii) those required filings, registrations, consents and approvals
listed in Schedule 5.4, no filing or registration with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
or required in connection with the execution and delivery of this Agreement by
UNC or for the consummation by UNC of the transactions contemplated by this
Agreement. Assuming that all filings, registrations, permits, authorizations,
consents and approvals contemplated by the immediately preceding sentence and
the other provisions of this Agreement have been duly made or obtained, neither
the execution, delivery and performance of this Agreement nor the consummation
of the transactions contemplated hereby by UNC will (i) conflict with or result
in any breach of any provision of the Certificates of Incorporation, bylaws,
partnership or joint venture agreements or other organizational documents of any
of the UNC Companies, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, or otherwise
result in any diminution of any of the rights of the UNC Companies with respect
to, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, Contract or other instrument or obligation to which any of
the UNC Companies is a party or by which it or any of them or any of their
properties or assets may be bound, or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any of the UNC Companies or
any of their properties or assets except, in the case of subsections (ii) or
(iii) above, for violations, breaches or defaults that would not have a UNC
Material Adverse Effect and that will not prevent or delay the consummation of
the transactions contemplated hereby.
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Section 5.5. Reports and Financial Statements.
(a) The UNC SEC Reports complied, as of their respective dates of
filing, in all material respects with all applicable requirements of the
Securities Act, the Exchange Act and the rules and regulations of the SEC. As of
their respective dates, none of such forms, reports or documents, including
without limitation any financial statements or schedules included therein,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading in light of the circumstances under which they were made.
(b) Each of the balance sheets (including the related notes and
schedules) included in the UNC SEC Reports fairly presented the consolidated
financial position of the UNC Companies as of the respective dates thereof, and
the other related financial statements (including the related notes and
schedules) included therein fairly presented the results of operations and cash
flows of the UNC Companies for the respective fiscal periods or as of the
respective dates set forth therein. Each of the financial statements (including
the related notes and schedules) included in the UNC SEC Reports (i) complied as
to form with the applicable accounting requirements and rules and regulations of
the SEC, and (ii) was prepared in accordance with GAAP consistently applied
during the periods presented, except as otherwise noted therein and subject to
normal year-end and audit adjustments in the case of any unaudited interim
financial statements.
(c) Except for UNC, none of the UNC Companies is required to file
any forms, reports or other documents with the SEC, Nasdaq, the NYSE or any
other foreign or domestic securities exchange or Governmental Authority with
jurisdiction over securities laws. UNC has timely filed all reports,
registration statements and other filings required to be filed by it with the
SEC.
(d) The balance sheet as of December 31, 1996 included in the UNC
1996 Management Statements fairly presents the consolidated financial position
of the UNC Companies as of that date and the other related financial statements
included therein fairly present the results of operations and cash flows of the
UNC Companies for the year then ended. The UNC 1996 Management Statements have
been prepared in accordance with GAAP consistently applied during the period
presented.
(e) The balance sheet (including the related notes and schedules)
included in the Audited 1996 Statements will, when issued, fairly present the
consolidated financial position of the UNC Companies as of the respective dates
thereof, and the other related financial statements (including the related notes
and schedules) included therein will fairly present the results of operations
and cash flows of the UNC Companies for the respective fiscal periods or as of
the respective dates set forth therein. The Audited 1996 Statements (including
the related notes and schedules) will, when issued, (i) comply as to form with
the applicable accounting requirements and rules and regulations of the SEC,
(ii) will have been prepared in accordance with GAAP consistently applied during
the periods presented, except as otherwise noted therein,
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and (iii) will not, except as set forth in Schedule 5.5, differ materially from
the UNC 1996 Management Statements.
Section 5.6. Absence of Certain Events. Except as set forth in the UNC SEC
Reports filed before the date of this Agreement or as otherwise specifically
disclosed in Schedule 5.6, none of the UNC Companies has suffered any change in
its business, financial condition, results of operations or prospects that has
had or will have a UNC Material Adverse Effect upon the UNC Companies. Except as
disclosed in the UNC SEC Reports or in Schedule 5.6, or as otherwise
specifically contemplated by this Agreement, there has not been: (i) any entry
into any agreement or understanding or any amendment of any agreement or
understanding between any of the UNC Companies on the one hand, and any of their
respective directors, officers or employees on the other hand, providing for
employment of any such director, officer employee or any general or material
increase in the compensation, severance or termination benefits payable or to
become payable by any of the UNC Companies to any of their respective directors,
officers or employees (except, in each case, in the ordinary course of business
that are consistent with past practices and that, in the aggregate, do not
result in a material increase in benefits or compensation expense), or any
adoption of or increase in any bonus, insurance, pension or other employee
benefit plan, payment or arrangement (including, without limitation, the
granting of stock options or stock appreciation rights or the award of
restricted stock) made to, for or with any such director, officer or employee;
(ii) any labor dispute that has had or is expected to have a UNC Material
Adverse Effect; (iii) any entry by any of the UNC Companies into any material
commitment, agreement, license or transaction (including, without limitation,
any borrowing, capital expenditure, sale of assets or any mortgage, pledge, lien
or encumbrances made on any of the properties or assets of any of the UNC
Companies) other than in the ordinary and usual course of business; (iv) any
change in the accounting policies or practices of UNC; (v) any damage,
destruction or loss, whether covered by insurance or not, which has had or will
have a UNC Material Adverse Effect; or (vi) any agreement to do any of the
foregoing.
Section 5.7. UNC Proxy Statement. None of the information with respect to
the UNC Companies to be included in the UNC Proxy Statement or any amendments
thereof or supplements thereto, at the time of the mailing of the UNC Proxy
Statement or any amendments thereof or supplements thereto and at the time of
the UNC Stockholders' Meeting, will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading. The UNC Proxy Statement will comply
as to form in all material respects with the provisions of the Securities Act,
the Exchange Act and the rules and regulations promulgated thereunder, except
that no representation is made by UNC with respect to information supplied by
Greenwich or any affiliate of Greenwich for inclusion in the UNC Proxy
Statement.
Section 5.8. Litigation. There is no action, suit, proceeding or, to the
Knowledge of UNC, investigation pending or, to the Knowledge of UNC, threatened
against or relating to any of the UNC Companies at law or in equity, or before
any federal, state, provincial, municipal or other governmental department,
commission, board, bureau, agency or instrumentality,
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whether in the United States or otherwise, that is expected, in the reasonable
judgment of UNC, to have a UNC Material Adverse Effect upon the UNC Companies or
that seeks restraint, prohibition, damages or other relief in connection with
this Agreement or the consummation of the transactions contemplated hereby. To
its Knowledge, UNC has furnished to Greenwich, copies of all attorneys' audit
letters, and has furnished will upon request furnish to Greenwich such other
documents available to UNC as may be requested by Greenwich in respect of
pending litigation affecting the UNC Companies.
Section 5.9. Title to and Sufficiency of Assets.
(a) As of the date hereof the UNC Companies own, and as of the
Effective Time the UNC Companies will own, good and marketable title to all of
their assets constituting personal property which is material to any of the UNC
Subsidiaries or any UNC Business (excluding, for purposes of this sentence,
assets held under leases), free and clear of any and all mortgages, liens,
encumbrances, charges, claims, restrictions, pledges, security interests or
impositions, except as disclosed in UNC Financial Statements or in Schedule 5.9.
Such assets, together with all assets held by the UNC Companies under leases,
include all tangible and intangible personal property, Contracts and rights
necessary or required for the operation of the UNC Businesses by the UNC
Companies in accordance with past practice.
(b) As of the date hereof the UNC Companies own, and as of the
Effective Time the UNC Companies will own, good and marketable title to all of
their Real Estate which is material to any of the UNC Subsidiaries or any UNC
Business (excluding, for purposes of this sentence, Real Estate leases), free
and clear of any and all mortgages, liens, encumbrances, charges, claims,
restrictions, pledges, security interests or impositions, except as disclosed in
UNC Financial Statements or in Schedule 5.9. Such Real Estate assets, together
with all Real Estate assets held by the UNC Companies under leases, are adequate
for the operation of the UNC Businesses by the UNC Companies as presently
conducted. The leases to all Real Estate occupied by UNC which is material to
the operation of the UNC Businesses are in full force and effect and no event
has occurred which with the passage of time, the giving of notice, or both,
would constitute a default or event of default by any of the UNC Companies or,
to the Knowledge of UNC, any other Person who is a party signatory thereto.
Section 5.10. Contracts.
(a) Before the Agreement Date UNC has provided Greenwich with access
to, and upon Greenwich's request UNC shall at all times subsequent to the
Agreement Date furnish Greenwich with true and correct copies of, all of the
Contracts to which any UNC Company is a party that constitute: (i) a lease of
any interest in any real property; (ii) a lease of any personal property with
aggregate annual rental payments in excess of $100,000; (iii) an option to
acquire or lease any interest in real property or a right of first refusal with
respect thereto; (iv) an agreement to purchase or sell a capital asset or an
interest in any business entity for a price in excess of $100,000 or a right of
first refusal with respect thereto; (v) an agreement relating to the borrowing
or lending of money or the purchase or sale of securities; (vi) a guaranty,
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contribution agreement or other agreement that includes any indemnification,
contribution or support obligation; (vii) an agreement limiting in any material
respect the ability of any UNC Company to compete in any line of business or
with any person; (viii) a customer supply or services agreement to which any of
the UNC Companies is a party or by which any of the UNC Companies is bound
pursuant to which the total amount payable (or reasonably expected to be
payable) to the UNC Companies in any calendar year exceeds $250,000 (a "Material
Customer Agreement"); (ix) an employment or consulting agreement to which any of
the UNC Companies is a party or by which any of the UNC Companies is bound; and
(x) any other agreement involving an amount over its term in excess of $250,000
(collectively, a "UNC Material Contract"). In addition to the UNC Material
Contracts, UNC shall furnish Greenwich with true and complete copies of all
other Contracts which Greenwich shall reasonably request.
(b) With respect to UNC Material Contracts, except where a breach of
the warranties contained in this Section 5.10 would not have a UNC Material
Adverse Effect: (i) the UNC Companies have performed and, to the Knowledge of
UNC, every other party has performed, each material term, covenant and condition
of each of the Material Contracts to which any UNC Company is a party that is to
be performed by any of them at or before the date hereof, (ii) all of such UNC
Material Contracts are in full force and effect and no event has occurred which,
with the passage of time or the giving of notice or both, would constitute a
default, event of default or other breach by UNC or applicable UNC Subsidiary
party thereto which would entitle the other Person who is a signatory to such
UNC Material Contract to terminate the same or declare a default or event of
default thereunder; (iii) neither UNC or any UNC Subsidiary has UNC Knowledge of
that the other Person to any such Material Contract intends to terminate or
amend such UNC Material Contract in any respect, (iv) UNC or the applicable UNC
Subsidiary party to such UNC Material Contract maintain good business
relationships with the other Person to such UNC Material Contract, and (v) UNC
or the applicable UNC Subsidiary party to such UNC Material Contract has no
reason to believe that the other Person to any such UNC Material Contract does
not intend to continue to conduct business with UNC or such UNC Subsidiary upon
the expiration of the stated term of such UNC Material Contract.
Section 5.11. Labor Matters.
(a) Except as set forth in Schedule 5.11, with respect to employees
of the UNC Companies: (i) to the Knowledge of UNC, no senior executive, key
employee or group of employees has any plans to terminate employment with any of
the UNC Companies; (ii) there is no unfair labor practice charge or complaint
against any UNC Company pending or, to the Knowledge of UNC, threatened before
the National Labor Relations Board or any other comparable authority; (iii)
there is no demand for recognition made by any labor organization or petition
for election filed with the National Labor Relations Board or any other
comparable authority, (iv) no grievance or any arbitration proceeding arising
out of or under collective bargaining agreements is pending and, to the
Knowledge of UNC, no claims therefor have been threatened; (v) the consummation
of the Merger and related transactions contemplated by this Agreement will not
give rise to termination of any existing collective bargaining agreement or
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permit any labor organization to reopen negotiations in respect of wages, hours
or working conditions under any of such existing collective bargaining
agreements; and (vi) there is no litigation, arbitration proceeding,
governmental investigation, administrative charge, citation or action of any
kind pending or, to the Knowledge of UNC, proposed or threatened against any UNC
Company relating to employment, employment practices, terms and conditions of
employment or wages and hours.
(b) Except as identified in Schedule 5.11, no UNC Company has any
collective bargaining relationship or duty to bargain with any Labor
Organization (as such term is defined in Section 2(5) of the National Labor
Relations Act, as amended), and no UNC Company has recognized any labor
organization as the collective bargaining representative of any of its
employees.
Section 5.12. Employee Benefit Plans.
(a) Schedule 5.12 sets forth a true and complete list of each
Employee Plan within the meaning of Section 4001 of ERISA, for the benefit of
any employee or former employee of any of the UNC Companies or any ERISA
Affiliate.. Schedule 5.12 sets forth each of the Employee Plans that is an
"employee benefit plan," as that term is defined in Section 3(3) of ERISA (the
"ERISA Plans").
(b) With respect to each Employee Plan, UNC has heretofore delivered
or will deliver to Greenwich upon request true and complete copies of each of
the following documents:
(i) a copy thereof;
(ii) a copy of the most recent annual report and actuarial
report, if required under ERISA and the most recent report prepared with respect
thereto in accordance with Statement of Financial Accounting Standards No. 87,
Employer's Accounting for Pensions;
(iii) a copy of the most recent Summary Employee Plan
Description required under ERISA with respect thereto;
(iv) if the Employee Plan is funded through a trust or any
third party funding vehicle, a copy of the trust or other funding agreement and
the latest financial statements thereof; and
(v) the most recent determination letter received from the
Internal Revenue Service with respect to each Employee Plan intended to qualify
under Section 401 of the Code.
(c) Except as set forth in Schedule 5.12, no Employee Plan (or other
employee benefit plan, program, agreement or arrangement to which UNC, any UNC
Subsidiary or any ERISA Affiliate made, or was required to make, contributions
during the five (5) year period ending on the Closing Date) is subject to Title
IV of ERISA.
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(d) Except as set forth in Schedule 5.12, neither UNC, any UNC
Subsidiary nor any ERISA Affiliate, any ERISA Plan, nor any trust created
thereunder, nor, to UNC's Knowledge, any trustee or administrator thereof has
engaged in a transaction in connection with which UNC, any UNC Subsidiary nor
any ERISA Affiliate, any ERISA Plan, any such trust, or any trustee or
administrator thereof, or any party dealing with any ERISA Plan or any such
trust could be subject to either a civil penalty assessed pursuant to Section
409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the
Code, which, in either case, if sustained would have a UNC Material Adverse
Effect.
(e) Except as set forth in Schedule 5.12, no ERISA Employee Plan or
any trust established thereunder has incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, as of the last day of the most recent fiscal year of each
ERISA Plan ended prior to the Closing Date; and all contributions required to be
made with respect thereto (whether pursuant to the terms of any ERISA Plan or
otherwise) on or prior to the Closing Date have been timely made.
(f) Except as set forth in Schedule 5.12, no ERISA Plan is a
"multiemployer pension plan," as defined in Section 3(37) of ERISA, nor is any
ERISA Plan a plan described in Section 4063(a) of ERISA.
(g) Except as set forth in Schedule 5.12, each Employee Plan has
been operated and administered in all material respects in accordance with its
terms and applicable law, including but not limited to ERISA and the Code.
(h) Except as set forth in Schedule 5.12, each ERISA Plan intended
to be "qualified" within the meaning of Section 401(a) of the Code is so
qualified and the trusts maintained thereunder are exempt from taxation under
Section 501(a) of the Code.
(i) Except as set forth in Schedule 5.12, no Employee Plan provides
benefits, including without limitation death or medical benefits (whether or not
insured), with respect to current or former employees of UNC or an ERISA
Affiliate their retirement or other termination of service (other than (i)
coverage mandated by applicable law or (ii) death benefits or retirement
benefits under any "employee pension plan," as that term is defined in Section
3(2) of ERISA).
(j) Except as set forth in Schedule 5.12, the consummation of the
transactions contemplated by this Agreement will not (i) entitle any current or
former employee or officer of UNC, any UNC Subsidiary or any ERISA Affiliate to
severance pay, unemployment compensation or any other payment, except as
expressly provided in this Agreement or (ii) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee or
officer, whether pursuant to any Employee Plan or any employment agreement with
such existing or former officer or employee of UNC, any UNC Subsidiary or any
ERISA Affiliate.
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(k) Except as set forth in Schedule 5.12, there are no pending, or
to UNC's Knowledge, threatened or anticipated claims by or on behalf of any
Employee Plan, by any employee or beneficiary covered under any such Employee
Plan, or otherwise involving any such Employee Plan (other than routine claims
for benefits).
Section 5.13. Tax Matters.
(a) Definitions. As used in this Agreement:
(i) "Tax Ruling" means a written ruling of a taxing authority
relating to Taxes.
(ii) "Closing Agreement" means a written and legally binding
agreement with a taxing authority relating to Taxes.
(b) Representations. Except for representations and warranties made
with respect to federal and state income Taxes, all representations and
warranties made in this Section 5.13(b) with respect to Taxes are made to the
best Knowledge of UNC. Subject to the foregoing, and except as set forth in
Schedule 5.13:
(i) Filing of Tax Returns. UNC and each of UNC Subsidiaries
have filed all Tax Returns required to be filed by each of them and such Tax
Returns are in all material respects true, complete and correct and filed on a
timely basis.
(ii) Payment of Taxes. UNC and each of UNC Subsidiaries have,
within the time and in the manner prescribed by law, paid all Taxes that are
currently due and payable, except for those contested in good faith and for
which adequate reserves have been taken.
(iii) Tax Liens. There are no tax liens upon the assets of UNC
or of any of UNC Subsidiaries except for statutory liens for current Taxes not
yet due.
(iv) Withholding Taxes. UNC and each of UNC Subsidiaries have
complied in all material respects with the provisions of the Code relating to
the withholding of Taxes, as well as similar provisions under any other laws,
and have, within the time and in the manner prescribed by law, withheld and paid
over to the proper governmental authorities all amounts required.
(v) Extensions of Time for Filing. Neither UNC nor any of UNC
Subsidiaries has requested any extension of time within which to file any Tax
Return, which Tax Return has not since been filed.
(vi) Waivers of Statute of Limitations. Neither UNC nor any of
UNC Subsidiaries has executed any outstanding waivers or comparable consents
regarding the application of the statute of limitations with respect to any
Taxes or Tax Returns.
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(vii) No Deficiencies. The statute of limitations for the
assessment of any federal income Taxes has expired for all income Tax Returns of
UNC and of each of UNC Subsidiaries or such income Tax Returns have been
examined by the Internal Revenue Service for all periods. No deficiency for any
income Taxes has been proposed, asserted or assessed against UNC or any of UNC
Subsidiaries which has not been resolved and paid in full. There are no
deficiencies for state income Taxes which individually, or in the aggregate,
would have a UNC Material Adverse Effect.
(viii) Audit, Administrative and Court Proceedings. No audits
or other administrative proceedings or court proceedings are presently pending
with regard to any Taxes or Tax Returns of UNC or any of UNC Subsidiaries.
(ix) Powers of Attorney. No power of attorney currently in
force has been granted by UNC or any of UNC Subsidiaries concerning any Taxes or
Tax Returns.
(x) Tax Rulings. Neither UNC nor any of UNC Subsidiaries has
received a Tax Ruling or entered into a Closing Agreement with any taxing
authority that would have a UNC Material Adverse Effect.
(xi) Tax Sharing Agreements. Neither UNC nor any UNC
Subsidiary is a party to any agreement relating to allocating or sharing of
Taxes which has not been disclosed on its Tax Returns.
Section 5.14. Insurance and Reinsurance. Schedule 5.14 sets forth all
insurance and reinsurance policies relating to UNC and any UNC Subsidiary. UNC
and each UNC Subsidiary has given any and all notices and made any and all
payments required to maintain such policies in full force and effect. Except as
set forth in Schedule 5.14: neither UNC nor any UNC Subsidiary has received
notice of default under any such policy, and has not received written notice or,
to the knowledge of UNC or any UNC Subsidiary, oral notice of any pending or
threatened termination or cancellation, coverage limitation or reduction or
material premium increase with respect to such policy.
Section 5.15. Officers' and Directors' Liability Insurance. UNC has
heretofore delivered to Greenwich a copy of its officers' and directors'
liability insurance policy.
Section 5.16. Compliance with Law. The conduct of the UNC Businesses of
the UNC Companies and their use of their assets does not violate or conflict,
and has not violated or conflicted, with any Law, which violation or conflict
could have a UNC Material Adverse Effect.
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Section 5.17. Environmental Matters. The conduct of the UNC Businesses of
the UNC Companies, and their ownership, use or occupancy of any properties for
which the UNC Companies have liability under Environmental Laws, does not
violate or conflict, and has not violated or conflicted, with any Environmental
Law, which violation or conflict could have a UNC Material Adverse Effect.
Section 5.18. Transactions With Affiliates. For purposes of this Section,
the term "Affiliate" means (a) any holder of 2% or more of the voting securities
of UNC, (b) any director, officer or senior executive of the UNC Companies, (c)
any person, firm or corporation that directly or indirectly controls, is
controlled by or is under common control with any of the UNC Companies or (d)
any member of the immediate family of any of such persons. Except as set forth
in Schedule 5.18 or in the UNC SEC Reports, since December 31, 1995, the UNC
Companies have not, in the ordinary course of business or otherwise, (a)
purchased, leased or otherwise acquired any material property or assets or
obtained any material services from, (b) sold, leased or otherwise disposed of
any material property or assets or provided any material services to (except
with respect to remuneration for services rendered in the ordinary course of
business as a director, officer or employee of one or more of the UNC
Companies), (c) entered into or modified in any manner any Contract with, or (d)
borrowed any money from, or made or forgiven any loan or other advance (other
than expense or similar advances made in the ordinary course of business) to,
any Affiliate.. Except as set forth in Schedule 5.18 or in the UNC SEC Reports,
(a) the Contracts of the UNC Companies do not include any material obligation or
commitment between any of the UNC Companies and any Affiliate, the assets of the
UNC Companies do not include any receivable or other obligation or commitment
from an Affiliate to any of the UNC Companies and (c) the liabilities of the UNC
Companies do not include any payable or other obligation or commitment from any
of the UNC Companies to any Affiliate.. To the Knowledge of UNC and except as
set forth in Schedule 5.18 or in the UNC SEC Reports, no Affiliate of any of the
UNC Companies is a party to any Contract with any customer or supplier of UNC
that affects in any material manner the business, financial condition or results
of operation of any of the UNC Companies.
Section 5.19. Fees and Expenses of Brokers and Others. None of the UNC
Companies (a) has had any dealings, negotiations or communications with any
broker or other intermediary in connection with the transactions contemplated by
this Agreement, (b) is committed to any liability for any brokers' or finders'
fees or any similar fees in connection with the transactions contemplated by
this Agreement or (c) has retained any broker or other intermediary to act on
its behalf in connection with the transactions contemplated by this Agreement,
except that UNC has engaged ▇.▇. ▇▇▇▇▇▇ and Fieldstone Partners ("Fieldstone")
to represent it in connection with such transactions, and shall pay all of ▇.▇.
▇▇▇▇▇▇'▇ and Fieldstone's fees and expenses in connection with such engagement,
up to a maximum amount of fees not to exceed $4.0 million in the aggregate.
Greenwich shall have no responsibility for any of such fees or expenses.
Section 5.20. Accuracy of Information. Neither this Agreement nor any
other document provided by the UNC Companies or their employees or agents to
Greenwich in connection with
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the transactions contemplated herein contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained therein not misleading.
Section 5.21. Absence of Undisclosed Liabilities. None of the UNC
Companies have, as of the date hereof, or will have, as of the Effective Time,
any liabilities or obligations of any kind, whether absolute, accrued, asserted
or unassorted, contingent or otherwise, that would be required to be disclosed
on a consolidated balance sheet of UNC prepared as of such date, in accordance
with GAAP, except liabilities, obligations or contingencies that were (a)
reflected on or accrued or reserved against in the consolidated balance sheet of
UNC as of September 30, 1996, included in the UNC SEC Reports or reflected in
the notes thereto, or (b) incurred after the date of such balance sheet in the
ordinary course of business and consistent with past practices and which,
individually or in the aggregate, would not have a UNC Material Adverse Effect.
None of the UNC Companies is a party to any Contract, or subject to any charter
or other corporate or partnership restriction, or subject to any judgment,
order, writ, injunction, decree, rule or regulation, which will have a UNC
Material Adverse Effect.
Section 5.22. Opinion of Financial Advisor. UNC has received the oral
opinion of ▇.▇.▇▇▇▇▇▇ dated March 9, 1997, to the effect that the Merger
Consideration and other transactions contemplated by this Agreement are fair to
the stockholders of UNC from a financial point of view and a written opinion to
that effect will be delivered to UNC not later than March 14, 1997.
Section 5.23. DGCL Section 203. UNC has approved the Merger and the
transactions contemplated hereby so as to cause: (i) the restrictions on
business combinations with interested stockholders set forth in section 203 of
the DGCL to be inapplicable to Greenwich, Merger Sub, the Merger and the
transactions contemplated hereby and (ii) any other applicable anti-takeover
statute or other applicable statute prohibiting or restricting business
combinations to be inapplicable to Greenwich, Merger Sub, the Merger and the
transactions contemplated hereby.
ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1. Conduct of the Businesses of UNC and Greenwich.
(a) UNC Companies. Except as otherwise expressly provided in this
Agreement, during the period from the date of this Agreement to the Effective
Time, the UNC Companies will conduct their respective operations according to
their ordinary and usual course of business and consistent with past practice,
and will use their best efforts to preserve intact their business organizations,
to keep available the services of their officers and employees and to maintain
satisfactory relationships with licensers, licensees, suppliers, contractors,
distributors, customers and others having material business relationships with
them. Without limiting the generality of the foregoing, and except as otherwise
expressly provided in this
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Agreement, before the Effective Time, none of the UNC Companies will, without
the prior written consent of Greenwich:
(i) amend its Articles or Certificate of Incorporation,
bylaws, partnership or joint venture agreements or other organizational
documents;
(ii) authorize for issuance or issue, sell or deliver (whether
through the issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase or otherwise) any stock of any class or any
other securities or interests, including, without limitation, any additional
shares of UNC Common Stock or shares of UNC Preferred Stock, except as may be
required by the existing terms of the Series B Preferred Stock Agreement, any
UNC Employee Plan, or any issued and outstanding UNC Stock Options disclosed
pursuant to this Agreement;
(iii) split, combine or reclassify any shares of its capital
stock or declare, set aside or pay any dividend or other distribution (whether
in cash, stock or property or any combination thereof) in respect of its capital
stock, or redeem or otherwise acquire any of its securities or any securities of
their respective Subsidiaries and Partnerships;
(iv) (A) except in the ordinary course of business, incur or
assume any Indebtedness not currently outstanding (provided, that except for
additional advances used for general working capital purposes which are
currently permitted under existing senior secured lines of credit, UNC shall not
incur any additional Indebtedness for money borrowed), (B)except in the ordinary
course of business, assume, guarantee, endorse or otherwise become liable or
responsible for the obligations of any person, other than a Subsidiary or
Partnership, (C) make any loans, advances or capital contributions to, or
investments in, any other person (other than customary loans or advances to
employees and non-affiliated customers in accordance with past practice), (D)
except in the ordinary course of business, enter into any Material Contract, or
alter, amend, modify or exercise any option under any existing Material
Contract, (E) enter into any other Contract, or alter, amend, modify or exercise
any option under any existing Contract (other than a Material Contract), except
in the ordinary course of business or in connection with the transactions
contemplated by this Agreement, or (F) make or commit to any single capital
expenditure which is in excess of $100,000 or capital expenditures which are, in
the aggregate, in excess of $1.0 million, except for capital expenditures (x)
required to be made under Contracts entered into before the Agreement Date, and
(y) which are reflected in the 1997 UNC capital budget previously furnished to
Greenwich and (z) which are legally required to be made under such Contracts;
(v) enter into, adopt or amend (except as may be required by
Law or as provided in this Agreement) any bonus, profit sharing, compensation,
severance, termination, stock option, stock appreciation right, restricted
stock, pension, retirement, deferred compensation, employment, consulting,
severance or other employee benefit agreements, trusts, plans, funds or other
arrangements for the benefit or welfare of any director, officer or employee, or
increase in any manner the compensation or fringe benefits of any director,
officer
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or employee or pay any benefit not required by any existing plan or arrangement
(including, without limitation, the granting of stock options, stock
appreciation rights, shares of restricted stock or performance units) or enter
into any Contract to do any of the foregoing (except, in each of the above
instances, for normal increases or other payments in the ordinary course of
business that are consistent with past practices and that, in the aggregate, do
not result in a material increase in benefits or compensation expense; provided,
that UNC shall give Greenwich 72 hours notice before effecting any change in
compensation for any employee whose current annual base compensation equals or
exceeds $100,000, even if Greenwich's approval shall not be required hereunder);
(vi) except as otherwise permitted in this Section 6.1,
acquire, sell, lease or dispose of any Real Estate or other material assets,
other than inventory in the ordinary course of business;
(vii) accelerate the collection of accounts receivable, delay
the payment of accounts payable or take any action with respect to credit,
collection and fiscal policies and practices, other than in the ordinary course
of business and in a manner consistent with past practice with respect to
accounting policies or practices;
(viii) make any material Tax election or settle or compromise
any material federal, state, local or foreign income Tax liability;
(ix) except for the payment of professional fees, pay,
discharge or satisfy any material claims, liabilities or obligations (absolute,
accrued or unassorted, contingent or otherwise), other than the payment,
discharge or satisfaction in the ordinary course of business of liabilities
reflected or reserved against in UNC's most recent quarterly or annual financial
statements or incurred in the ordinary course of business since the date
thereof; or
(x) hold any meeting of its stockholders except to the extent
required by the request of the stockholders entitled to call a meeting under
UNC's bylaws or the DGCL;
(xi) take any action that would or is reasonably likely to
result in any of the covenants and agreements set forth in this Article VI or
any of the conditions set forth in Article VII not being satisfied as of the
Closing Date; or
(xii) agree in writing or otherwise to take any of the
foregoing actions.
(b) Greenwich. Except as otherwise expressly provided in this
Agreement, during the period from the date of this Agreement to the Effective
Time Greenwich hereby agrees to conduct its operations as required pursuant to
the terms of its covenants and agreements under the GE-Greenwich Merger
Agreement.
(c) Provision of UNC Information. UNC agrees that, during the period
from the Agreement Date to the Effective Time: (i) UNC will cause its
representatives to meet, upon
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request, with representatives of Greenwich to discuss its operations and
business prospects; (ii) UNC will provide Greenwich and its representatives full
and prompt access to all financial statements, accounting work papers,
documents, agreements, and other instruments which may be reasonably requested,
and (iii) UNC will promptly advise Greenwich of the occurrence of any UNC
Material Adverse Effect with respect to the UNC Companies.
Section 6.2. No Solicitation. UNC agrees that it shall not, after the date
hereof and before the Effective Time, directly or indirectly, through any
officer, director, employee, agent or otherwise, solicit, initiate or encourage
submission of proposals or offers from any person relating to any acquisition or
purchase of all or (other than in the ordinary course of business) a substantial
portion of the assets of, or any equity interest in, any UNC Company or any
business combination involving any UNC Company or, except to the extent required
by fiduciary obligations under applicable Law as advised by counsel, participate
in any negotiations regarding, or furnish to any other person any information
with respect to, or otherwise cooperate in any way with, or assist or
participate in, facilitate or encourage, any effort or attempt by any other
person to do or seek any of the foregoing. UNC shall promptly advise Greenwich
if any such proposal or offer, or any inquiry or contact with any person with
respect thereto, is made, shall promptly inform Greenwich of all the terms and
conditions thereof, and shall furnish to Greenwich copies of any such written
proposal or offer and the contents of any communications in response thereto.
UNC shall not waive any provisions of any "standstill" agreements between UNC
and any party, except to the extent that such waiver is, as advised by counsel,
required by fiduciary obligations under applicable Law.
Section 6.3. The UNC Proxy Statement.
(a) UNC shall, as soon as practicable following the execution of
this Agreement, file with the SEC a draft of the UNC Proxy Statement (in a form
mutually acceptable to UNC and Greenwich) as preliminary proxy materials under
the Exchange Act, and shall seek confidential treatment with respect thereto,
and Greenwich shall cooperate with UNC in preparing such proxy materials. UNC
shall respond promptly to any comments made by the SEC with respect thereto, and
Greenwich shall cooperate with UNC in preparing such responses.
(b) Upon resolution of any SEC comments with respect to the draft
UNC Proxy Statement, or at such other time as may be mutually determined by the
parties hereto, Greenwich and UNC shall each use their respective best efforts
to cause the UNC Proxy Statement to be approved by the SEC under the Exchange
Act as soon as practicable, and UNC shall cause the UNC Proxy Statement to be
mailed to its stockholders at the earliest practicable time after approval of
the same by the SEC; provided, however, that UNC will not file any amendment or
supplement to the UNC Proxy Statement without first furnishing to Greenwich a
copy thereof for review and will not file any such proposed amendment or
supplement to which Greenwich shall reasonably and promptly object.
(c) If, at any time when the UNC Proxy Statement is required to be
delivered to the stockholders of UNC under the Exchange Act, any event occurs as
a result of which either
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the UNC Proxy Statement as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading, or if it shall be necessary to amend the UNC
Proxy Statement or to supplement such Proxy Statement in order to comply with
the Exchange Act or the rules thereunder, UNC shall prepare and file with the
SEC an amendment or supplement that will correct such statement or omission or
effect such compliance, and Greenwich shall cooperate with UNC in preparing such
amendment or supplement.
Section 6.4. Access to Information: Confidentiality Agreements.
(a) Between the date of this Agreement and the Effective Time, the
parties hereto will give one another and their authorized representatives
reasonable access during normal business hours to all plants, offices, and other
facilities and to all books and records of one another, will permit one another
to make such inspections as each may reasonably request and will cause their
officers and those of their Subsidiaries and Partnerships to furnish such
financial and operating data and other information with respect to their
businesses and properties as may from time to time reasonably be requested.
Subject to Section 6.7, all such information shall be kept confidential in
accordance with the Confidentiality Agreement.
(b) Notwithstanding the execution of this Agreement, the
Confidentiality Agreement shall remain in full force and effect through the
Effective Time, at which time the Confidentiality Agreement shall terminate and
be of no further force and effect. Each party hereto hereby waives the
provisions of the Confidentiality Agreement as and to the extent necessary to
permit the solicitation of votes of the stockholders of Greenwich and UNC
pursuant to the UNC Proxy Statement and to permit consummation of the
transactions contemplated hereby. Each party further acknowledges that the
Confidentiality Agreement shall survive any termination of this Agreement
pursuant to Section 11.1.
(c) Notwithstanding anything to the contrary contained in this
Section 6.4 or in the Confidentiality Agreement, each of UNC and Greenwich
hereby agrees to furnish to GE and its designated representatives all data,
financial statements, projections, contracts, agreements, instruments, writings
and other materials concerning the UNC Businesses and the Greenwich Businesses,
and to permit representatives of GE full and complete access to the personnel
and facilities of each of the UNC Businesses and Greenwich Businesses, to enable
GE to verify the accuracy of the representations and warranties of UNC contained
in this Agreement and of Greenwich contained in the GE-Greenwich Merger
Agreement, subject to the respective provisions of the Confidentiality Agreement
and the confidentiality agreement dated March 4, 1997 between Greenwich and GE.
Section 6.5. Best Efforts. Subject to the terms and conditions herein
provided and subject to fiduciary obligations under applicable Law as advised by
counsel, each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper and advisable under applicable Law, to consummate and
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make effective the transactions contemplated by this Agreement and the
GE-Greenwich Merger Agreement. In case at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers directors of each party to this Agreement shall
take all such necessary action. Greenwich and UNC shall execute any additional
instruments necessary to consummate the transactions contemplated hereby.
Section 6.6. Consents. UNC and Greenwich shall each use its best efforts
to obtain consents of all third parties and governmental authorities necessary
to the consummation of the transactions contemplated by this Agreement and the
GE-Greenwich Merger Agreement.
Section 6.7. Public Announcements. The parties hereto have agreed upon the
text of a joint press release announcing, among other things, the execution of
this Agreement, which joint press release shall be disseminated promptly
following the execution hereof UNC and Greenwich will consult with each other
and with GE before issuing any additional press release or otherwise making any
additional public statement with respect to this Agreement, the Certificate of
Merger, the Merger, the GE-Greenwich Merger Agreement, the GE/Greenwich Merger
or the transactions contemplated herein or therein and shall not issue any such
press release or make any such public statement before such consultation or as
to which the other party or GE promptly and reasonably objects, except as may be
required by Law in the written opinion of such party's or GE's counsel or by
obligations pursuant to any listing agreement with any national securities
exchange or inter-dealer quotation system, in which case the party proposing to
issue such press release or make such public announcement shall use its best
efforts to consult in good faith with the other party before issuing any such
press release or making any such public announcements.
Section 6.8. [Intentionally omitted]
Section 6.9. Indemnification: Insurance.
(a) Except as may be limited by applicable Law, from the Effective
Time and for a period of seven (7) years thereafter, Greenwich shall cause the
Surviving Corporation to maintain all rights of indemnification existing in
favor of the directors and officers of UNC on terms no less favorable than those
provided in the certificate of incorporation and bylaws of UNC on the date of
this Agreement with respect to matters occurring before the Effective Time.
(b) Greenwich shall cause to be maintained in effect for three (3)
years from the Effective Time the current policies for directors' and officers'
liability insurance maintained by UNC (provided that Greenwich may substitute
therefor policies of at least the same coverage containing terms and conditions
that are not materially less advantageous) with respect to matters occurring
before the Effective Time, to the extent such insurance is available to
Greenwich in the market.
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(c) Greenwich hereby agrees to guarantee the performance by Merger
Sub of its obligations under this Section 6.9.
Section 6.10. Board of Directors Approval. UNC agrees that the UNC Board
of Directors will recommend that its stockholders adopt this Agreement and
approve the Merger unless advised in writing by its counsel that such
recommendation will constitute a violation of its fiduciary duties to its
stockholders.
Section 6.11. UNC Stock Options. UNC agrees not to grant any further Stock
Options following the Agreement Date through and including the Effective Time of
the Merger.
Section 6.12. Best Efforts, etc. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use its best efforts to
take, or cause to be taken, all action, 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 by this Agreement
and, including obtaining any consents, authorizations, exemptions and approvals
from, and making all filings with, any insurance department, governmental,
regulatory or public body or authority which are necessary or, in the judgment
of the parties, desirable in connection with the transactions contemplated by
this Agreement.
Section 6.13. HSR Act. UNC and Greenwich shall, as soon as practicable,
file Notification and Report Forms under the HSR Act with the Federal Trade
Commission (the "FTC") and the Antitrust Division of the Department of Justice
(the "Antitrust Division") and shall use best efforts to respond as promptly as
practicable to all inquiries received from the FTC or the Antitrust Division for
additional information or documentation.
Section 6.14. Interim Financials. Prior to the Effective Time, UNC will
deliver to Greenwich as soon as available but in no event later than 30 days
after the end of any fiscal quarter, a consolidated statement of financial
position of UNC and its Subsidiaries as at the last day of such fiscal quarter
and the consolidated statements of income and changes in financial position of
such party and its Subsidiaries for the fiscal period then ended (which
statements may be unaudited) prepared in conformity with the requirements of
Form 10-Q under the Exchange Act.
Section 6.15. Material Events. At all times prior to the Effective Time,
each party shall promptly notify the others in writing of the occurrence of any
event which will or may result in the failure to satisfy any of the conditions
specified in Articles VII, VIII or IX hereof.
Section 6.16. Rights Agreement. The UNC Board of Directors will take all
necessary action (including, but not limited to redemption) so that, as of the
Effective Time, (i) the Rights Agreement dated as of September 25, 1987, between
UNC and Manufacturers Hanover Trust Company, as amended on May 16, 1996, in
respect of the potential issuance of Series A Preferred Stock (the "Rights
Agreement") will be terminated and none of Greenwich, GE, or any of their
respective Affiliates will be deemed to be an "Acquiring Person" or an "Adverse
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Person" (as such terms are defined in the Rights Agreement) for purposes
thereof, and (ii) a "Distribution Date" (as such term is defined in the Rights
Agreement) shall not occur by virtue of the Merger or the GE-Greenwich Merger
Agreement. UNC will take any and all action reasonably requested by Greenwich to
ensure and confirm that UNC, Greenwich, and their respective Affiliates will not
have any obligations in connection with the Rights or the Rights Agreement in
connection with the Merger.
Section 6.17. Reversion to Prior Agreement. If the Greenwich-GE Merger
shall have been terminated for any reason (i) Greenwich shall promptly notify
UNC of such termination, and (ii) this Agreement shall be automatically deemed,
without any action by any party hereto, to be further amended, restated and
modified, so that all of the terms and conditions set forth in the Prior
Agreement shall, for all purposes, be deemed to be the terms and conditions of
this Agreement; provided, however, that the term "Outside Effective Time" shall
be amended to mean the date that is 120 days from the date of the notice
delivered by Greenwich to UNC pursuant to this Section 6.17; and provided
further that (A) the term "UNC Common Stock Equivalents" shall be deemed to
include any shares of UNC Common Stock issuable upon conversion of the 7-1/2%
UNC Convertible Debentures and (B) the provisions of Section 2.1(g) herein shall
be deemed to be incorporated by reference in the Prior Agreement. Each of
Greenwich and UNC shall thereafter take all actions necessary, including,
without limitation, the execution and delivery of applicable agreements, to
implement the intent of this Section 6.17.
Section 6.18. Amendment of GE-Greenwich Merger Agreement. Without the
prior written consent of UNC, Greenwich shall not consent to any amendment of,
or otherwise waive the benefit of, Sections $.01, 6.06, or 8.01(b) of the
GE-Greenwich Merger Agreement, agree to terminate the GE-Greenwich Merger
Agreement (pursuant to Section 8.01 of the GE-Greenwich Merger Agreement or
otherwise), or otherwise modify or amend the GE-Greenwich Merger Agreement in
any respect that could materially impair or adversely affect the rights or
benefits inuring (directly or indirectly) thereunder to any of the UNC Companies
or their officers, or stockholders. Greenwich further agrees to cooperate and
consult with UNC with respect to, and otherwise keep UNC informed of
developments relating to, satisfaction of the conditions to consummation of the
GE/Greenwich Merger.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF ALL PARTIES
The respective obligation of each party to consummate the Merger is
subject to the satisfaction at or before the Effective Time of the following
conditions precedent:
Section 7.1. Greenwich Stockholder Approval. The transactions contemplated
by the GE-Greenwich Merger Agreement shall have been approved by the affirmative
vote of the holders of Greenwich Class A Stock at a special stockholders'
meeting of Greenwich by the requisite vote in accordance with the DGCL;
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Section 7.2. UNC Stockholder Approval. The transactions contemplated by
this Agreement shall have been approved, and this Agreement shall have been
adopted, by the affirmative vote of the holders of a majority of the outstanding
shares of UNC Common Stock at the UNC Stockholders' Meeting;
Section 7.3. Absence of Order. No order, decree or injunction shall have
been enacted, entered, promulgated or enforced by any United States court of
competent jurisdiction or any United States governmental authority which
prohibits the consummation of the Merger or the GE/Greenwich Merger; provided,
however, that the parties hereto shall use their best efforts to have any such
order, decree or injunction vacated or reversed;
Section 7.4. Certain Approvals. Any waiting period applicable to the
Merger and the GE/Greenwich Merger under the HSR Act shall have terminated or
expired, all applicable requirements of the Exchange Act shall have been
satisfied and any applicable filings under state securities, "Blue Sky" or
takeover laws shall have been made;
Section 7.5. Other Consents and Approvals. All other necessary and
material governmental, regulatory, stockholder and third party lender, customer
or other clearances, consents, licenses or approvals shall have been received.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF GREENWICH AND MERGER SUB
Each and every obligation of Greenwich and Merger Sub under this Agreement
shall be subject to the satisfaction, on or before the Closing Date, of each of
the following conditions, each of which may be waived by Greenwich and Merger
Sub as provided herein except as otherwise provided by law.
Section 8.1. Representations and Warranties True. The representations and
warranties of UNC contained in this Agreement shall be true and correct in all
material respects as of the Agreement Date and shall be deemed to have been made
again at and as of the Closing Date and shall then be true and correct in all
material respects, and at the Closing UNC shall have delivered to Greenwich a
certificate to that effect signed by the Chief Executive Officer and the
principal financial officer of UNC.
Section 8.2. UNC's Performance. Each of the obligations of UNC to be
performed by it on or before the Closing Date pursuant to the terms of this
Agreement shall have been duly performed in all material respects by the Closing
Date, including all covenants and agreements of UNC set forth in Article V and
Article VI hereof, and at the Closing UNC shall have delivered to Greenwich a
certificate to that effect signed by the Chief Executive Officer and the
principal financial officer of UNC.
Section 8.3. Resignation. As at the Effective Time, ▇▇▇ ▇. ▇▇▇▇▇▇▇ shall
tender his resignation as Chairman and Chief Executive Officer of UNC. Such
resignation, however, shall
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not in any way limit or affect ▇▇▇ ▇. ▇▇▇▇▇▇▇'▇ right to receive his allocable
payments contemplated by Section 9.4 and Section 2.2(e).
Section 8.4. Certificates. UNC shall have furnished Greenwich 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
Greenwich.
Section 8.5. SERP Termination. Subject to the satisfaction of Section 9.3,
on or before the Closing Date UNC shall have terminated, effective as of the
Agreement Date, any further obligations it has or may have had in connection
with any supplemental executive retirement plans, other than obligations that
have vested as of the Agreement Date.
Section 8.6. Consummation of the GE/Greenwich Merger. All conditions to
the consummation of the GE/Greenwich shall have been satisfied or waived.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF UNC
Each and every obligation of UNC under this Agreement shall be subject to
the satisfaction, on or before the Closing Date, of each of the following
conditions, each of which may be waived by UNC as provided herein except as
otherwise provided by law:
Section 9.1. Representations and Warranties True. The representations and
warranties of Greenwich and Merger Sub contained in this Agreement shall be true
and correct in all material respects as of the Agreement Date and shall be
deemed to have been made again at and as of the Closing Date and shall then be
true and correct in all material respects, and at the Closing, Greenwich and
Merger Sub shall have each delivered to UNC a certificate to that effect signed
by the Chief Executive Officer the principal financial officer of Greenwich.
Section 9.2. Greenwich's and Merger Sub's Performance. Each of the
obligations of Greenwich and Merger Sub to be performed by them on or before the
Closing Date pursuant to the terms hereof shall have been duly performed and
complied with in all material respects by the Closing Date and at the Closing,
Greenwich and Merger Sub shall have each delivered to UNC a certificate to that
effect signed by the Chief Executive Officer and principal financial officer of
Greenwich.
Section 9.3. Certificates. Greenwich shall have furnished UNC with such
certificates of their respective officers and others to evidence compliance with
the conditions set forth in this Article IX as may be reasonably requested by
UNC.
Section 9.4. Modification and Assumption of SERP/CIC Payments. On or
before the Closing Date, Greenwich shall have paid the amounts necessary to fund
supplemental executive retirement plan and change-in-control payment obligations
of the UNC Companies as of the
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Closing Date. Notwithstanding the foregoing, promptly after the date of this
Agreement but before the mailing of the UNC Proxy Statement, UNC and Greenwich
shall consult with GE and UNC and Greenwich shall use their best efforts to
obtain the consent of the employees who are parties thereto to amend and
restructure the existing compensation arrangements applicable to such employees
so that, to the extent possible, no "parachute payments" (within the meaning of
Section 280G(b)(2) of the Code) are made and no remuneration for which a
deduction would be disallowed by reason of the application of Section 162(m) of
the Code is paid to such employees and that each such employee is afforded
alternative compensation arrangements of substantially equivalent value;
provided, however, that obtaining such consent shall not be a condition to the
obligations of Greenwich, Merger Sub, or UNC under this Agreement.
ARTICLE X
CLOSING
Section 10.1. Time and Place. A closing ("Closing") shall take place to
confirm the satisfaction or waiver of the conditions to Closing contained in
Articles VII, VIII and IX at the offices of Greenberg, Traurig, Hoffman, Lipoff,
▇▇▇▇▇ & ▇▇▇▇▇▇▇, PA, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 1:00 P.M.,
local time, or at such other place, at such other time, or on such other date as
the Greenwich and UNC may mutually agree upon for the Closing to take place.
ARTICLE XI
TERMINATION; AMENDMENT; WAIVER
Section 11.1. Termination. Notwithstanding adoption of this Agreement by
stockholders of UNC and Greenwich, this Agreement may be terminated, and the
Merger abandoned, at any time prior to the Effective Time of the Merger:
(a) by the mutual consent of the Boards of Directors of Greenwich
and UNC; or
(b) by either Greenwich or UNC if the Merger shall not have been
consummated on or before September 30, 1997 (the "Outside Effective Time");
provided, however, that the right to terminate this Agreement under this Section
11.1(b) shall not be available to any party whose act or omission (which act or
omission was solely within such party's control), shall have resulted in the
Outside Effective Time's having passed without the Merger having been
consummated; and provided further that Greenwich shall be deemed to have agreed
to extend the Outside Effective Time as and to the extent that the outside date
for consummation of the GE/Greenwich Merger may from time to time be extended;
or
(c) by either Greenwich or UNC, if any court of competent
jurisdiction in the United States or other United States governmental body shall
have issued an order, judgment or
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decree (other than a temporary restraining order) restraining, enjoining or
otherwise prohibiting the Merger and such order, judgment or decree shall have
become final and nonappealable; or
(d) by Greenwich, if any of the following events have occurred:
(i) the Merger contemplated by this Agreement is voted upon by
holders of UNC Common Stock at the UNC Stockholders' Meeting, and the votes are
not sufficient to satisfy the condition set forth in Section 7.2; or
(ii) the UNC Board does not recommend in the UNC Proxy
Statement that UNC's stockholders adopt and approve the Merger, this Agreement
and the transactions contemplated hereby and thereby; or
(iii) after recommending in the UNC Proxy Statement that UNC's
stockholders adopt and approve the Merger, this Agreement and the transactions
contemplated hereby, the UNC Board withdraws, modifies or amends such
recommendation in any respect materially adverse to Greenwich; or
(iv) if there shall occur a breach by UNC of any
representation or warranty set forth in this Agreement, which breach has a UNC
Material Adverse Effect and is within the actual knowledge of any Person listed
in Schedule 1.46, or UNC shall breach any covenant or agreement contained in
this Agreement which makes consummation of the transaction contemplated hereby
either impossible or impracticable for Greenwich.
(e) by UNC if, before the Effective Time, a Person or group makes a
bona fide proposal with respect to the acquisition of all or substantially all
of UNC's outstanding capital stock or assets, that the Board of Directors of UNC
believes in good faith after consultation with its financial advisors, is more
favorable, from a financial point of view, to the stockholders of UNC than the
proposal set forth in this Agreement (a "Superior Proposal"); provided that
Greenwich does not (in its sole option) elect to make, within ten Business Days
after receiving notice of such Superior Proposal, an offer that the Board of
Directors of UNC believes, in good faith after consultation with its financial
advisors, is at least as favorable, from a financial point of view, to the UNC
stockholders as such Superior Proposal; or
(f) by Greenwich, if there shall have occurred and shall be
continuing a UNC Material Adverse Effect.
Section 11.2. Effect of Termination. In the event of the termination of
this Agreement and the Merger by either Greenwich or UNC, this Agreement shall
become void and there shall be no liability hereunder on the part of Greenwich
or UNC or their respective officers or directors except, in each case, as
otherwise provided in Sections 11.3 and 12.1 hereof, which Sections shall
survive any such termination and continue in effect thereafter.
Section 11.3. Termination Payments and Expenses.
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(a) If this Agreement is terminated:
(i) by Greenwich, pursuant to clauses (ii), (iii) or (iv) of
Section 11.1(d); or
(ii) by UNC, pursuant to Section 11.1(e);
then UNC shall promptly pay to Greenwich the sum of $20 million.
(b) Each party hereto acknowledges that the agreements contained in
this Section 11.3 are an integral part of the transactions contemplated by this
Agreement and that, without these agreements, none of the parties hereto would
enter into this Agreement. Accordingly, if any party hereto fails to pay any
amounts pursuant to this Section 11.3, and, in order to obtain such payment,
legal action is commenced which results in a judgment therefor, the liable party
will pay the plaintiff's reasonable costs (including reasonable attorneys' fees)
in connection with such suit, together with interest computed on any amounts
determined pursuant to this Section 11.3 (computed from the date when such
amounts were due and payable pursuant to this Section 11.3) and such costs
(computed from the date or dates incurred) at the prime rate of interest
announced from time to time by Citibank, N.A. The parties' obligations pursuant
to this Section 11.3 will survive any termination of this Agreement.
(c) In the event that Greenwich shall terminate this Agreement by
reason of any of the events specified in Section 11.1, none of the Greenwich
Companies nor their Affiliates under this Agreement, or otherwise.
(d) The remedies of Greenwich set forth in this Section 11.3
constitute full and complete liquidated damages and represent the sole and
exclusive remedies at law of such party as a result of the termination of this
Agreement pursuant to Section 11.3.
(e) Nothing herein contained shall prevent a party otherwise
entitled to seek specific performance of this Agreement from applying to and
obtaining from a court of competent jurisdiction such equitable relief as such
court may deem proper in the circumstances.
(f) Except as provided in this Section 11.3, all costs and expenses
incurred in connection with this Agreement shall be paid in accordance with
Section 12.1
ARTICLE XII
MISCELLANEOUS
Section 12.1. Expenses. Except as provided in Section 11.3, all costs and
expenses incurred in connection with this Agreement, and the transactions
contemplated hereby and thereby shall be paid by the party incurring such
expenses.
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Section 12.2. No Survival of Representations and Warranties. The
respective representations and warranties, obligations, covenants and agreements
of UNC, Greenwich and Merger Sub contained herein or in any Exhibit or Schedule,
certificate or letter delivered pursuant hereto shall expire with, and be
terminated and extinguished by, the effectiveness of the Merger.
Section 12.3. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and do not
constitute.a part of this Agreement.
Section 12.4. Notices. All notices or other communications required
hereunder shall be in writing and shall be deemed given on the date delivered if
delivered personally (including by reputable overnight courier), on the date
transmitted if sent by telecopy (which is confirmed) or 72 hours after mailing
if mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Greenwich, to:
Greenwich Air Services, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ International Airport, Building 23
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.,
Chairman and Chief Executive Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ Traurig ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to UNC, to:
UNC Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman and Chief Executive
Officer
Telecopy: (▇▇) ▇▇▇-▇▇▇▇
with a copy to: Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇) ▇▇▇-▇▇▇▇
Section 12.5. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor an
of the rights, interests, or obligations hereunder, shall be assigned by any of
the parties hereto without the prior written consent of the other parties,
except that Greenwich may assign all of its rights, interests and obligations
hereunder to GE or to any wholly owned subsidiary of GE, provided that such GE
or such GE Subsidiary agrees in writing to be bound by all of the terms,
conditions and provisions contained herein. Such assignment may be effected by
merging UNC with and into GE or such GE Subsidiary simultaneously with or
subsequent to the Effective Time.
Section 12.6. Complete Agreement. This Agreement, including the schedules,
exhibits and other writings referred to herein or delivered pursuant hereto, and
the Confidentiality Agreement together contain the entire understanding of the
parties with respect to the Merger and the related transactions and supersede
all prior arrangements or understandings with respect thereto.
Section 12.7. Modifications, Amendments and Waivers. At any time prior to
the Effective Time of the Merger (notwithstanding any stockholder approval), if
authorized by their respective Boards of Directors and to the extent permitted
by law, (i) the parties hereto may, by written agreement, modify, amend or
supplement any term or provision of this Agreement and (ii) any term or
provision of this Agreement may be waived by the party which is, or whose
stockholders are, entitled to the benefits thereof; provided, however, that
after this Agreement is adopted by holders of UNC Common Stock, no such
amendment or modification shall be made which would reduce the amount or change
the type of consideration into which UNC Common Stock is to be converted as
provided in this Agreement or which in any way materially adversely affects the
rights of such stockholders, without the further approval of such stockholders.
Any written instrument or agreement referred to in this paragraph shall be
validly and sufficiently authorized for the purposes of this Agreement if signed
on behalf of Greenwich and UNC by a person authorized to sign this Agreement.
Section 12.8. Counterparts. This Agreement may be executed in two or more
counterparts all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
Section 12.9. Governing Law. This Agreement shall be governed by the laws
of the State of Delaware (regardless of the laws that might be applicable under
principles of conflicts of law) as to all matters, including but not limited to
matters of validity, construction, effect and performance.
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Section 12.10. Accounting Terms. All accounting terms used herein which
are not expressly defined in this Agreement shall have the respective meanings
given to them in accordance with GAAP.
Section 12.11. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 12.12. Schedules to Prior Agreement. The Schedules to the Prior
Agreement shall constitute and be deemed the Schedules to this Agreement.
IN WITNESS WHEREOF, Greenwich, and UNC have caused this Agreement to be
signed by their respective officers hereunto duly authorized, all as of the date
first written above.
GREENWICH AIR SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chairman and Chief Executive
Officer
ATTEST:
CONDOR ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chairman and Chief Executive
Officer
ATTEST:
UNC INCORPORATED
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
ATTEST:
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SCHEDULE 5.5
The Audited 1996 Statements reflect the following items not included in the UNC
1996 Management Statements:
(a) $15 million receivable from CFC, the seller of the ▇▇▇▇▇▇▇ assets
(b) $5 million payable to AlliedSignal Engines
(c) $5 million writeoff of the ▇▇▇▇▇▇▇ computer system
(d) $5 net reduction in goodwill
(e) typical and customary year-end adjustments to deferred taxes
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