<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
Capital Factors Holding, Inc.
-----------------------------
(Name of Issuer)
Common Stock, $.01 par value per share
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(Title of Class of Securities)
139905103
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(CUSIP Number)
Jackson W. Moore
President
Union Planters Bank, National Association
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
(901) 580-2877
--------------
(Name, Address and Telephone Number
of Person Authorized to Receive
Notices and Communications)
October 19, 1998
--------------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4) check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-l(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
THE INFORMATION REQUIRED ON THE REMAINDER OF THIS COVER PAGE SHALL NOT BE DEEMED
TO BE "FILED" FOR THE PURPOSE OF SECTION 18 OF THE SECURITIES EXCHANGE ACT OF
1934 ("ACT") OR OTHERWISE SUBJECT TO THE LIABILITIES OF THAT SECTION OF THE ACT
BUT SHALL BE SUBJECT TO ALL OTHER PROVISIONS OF THE ACT (HOWEVER, SEE THE
NOTES).
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CUSIP No.: 139905103____
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1. Name of Reporting Person: Union Planters Bank, National Association
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S.S. or I.R.S. Identification No. of Above Person:
--------------------------
I.R.S. Identification No. 62-0859-006
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2. Check the Appropriate Box if a Member of a Group (See Instructions):
a. [ ] b. [ ]
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3. SEC Use Only
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4. Source of Funds (see Instructions): [WC; OO]
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5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e): [ ]
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6. Citizenship or Place of Organization: United States
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7. Sole Voting Power: 11,357,850
Number of ------------------------------
Shares Beneficially 8. Shared Voting Power: 11,357,850
------------------------------
Owned by
Each Reporting 9. Sole Dispositive Power: 11,357,850
--------------------------
Person With
10. Shared Dispositive Power: 11,357,850
------------------------
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11. Aggregate Amount Beneficially Owned by Each Reporting Person: 11,357,850
--------------
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12. Check Box if the Aggregate Amount in Row 11 Excludes Certain Shares
(See Instructions): [ ]
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13. Percent of Class Represented by Amount in Row 11: 92.27%(1)
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14. Type of Reporting Person (See Instructions): BK
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1 Calculated on the basis of 12,309,012 shares outstanding as of August 31,
1998.
Page 2 of 5
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ITEM 1. SECURITY AND ISSUER.
This statement relates to the common stock of Capital Factors Holding,
Inc.("CFH"), $.01 par value per share ("CFH Common Stock"). CFH is a Florida
corporation with principal executive offices located at Suite 500 East Palmetto
Park Road, Boca Raton, Florida 33432.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed by Union Planters Bank, National
Association ("UPBNA"), a national banking association with principal executive
offices located at 7130 Goodlett Farms Parkway, Memphis, Tennessee 38018. The
principal business of UPBNA is the provision of such services ordinarily
provided by a national bank.
To the best of UPBNA's knowledge, during the last five years, neither
UPBNA nor any of its directors or executive officers has been convicted in any
criminal proceedings (excluding traffic violations or similar misdemeanors) nor
has UPC or any of its directors or executive officers been a party to any civil
proceeding of a judicial or administrative body of competent jurisdiction
resulting in a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Attached hereto is an appendix to Item 2 setting forth certain
additional information concerning the directors and executive officers of UPBNA,
Union Planters Holding Corporation ("UPHC"), and Union Planters Corporation, a
Tennessee corporation ("UPC").
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
As described in Item 4, UPBNA purchased a total of 24,500 shares of CFH
Common Stock with working capital funds all at a purchase price of $17.50 a
share.
ITEM 4. PURPOSE OF TRANSACTION.
On September 9, 1998 UPBNA made an open market purchase of 24,500 shares
of CFH Common Stock all at a purchase price of $17.50 a share. This transaction
brought UPBNA's interest in CFH to approximately 92.23% of the total outstanding
shares of CFH Common Stock. The purpose of the transaction was to increase
UPBNA's investment in CFH as opportunities arose. UPBNA has no plans to make
additional individual open market purchases.
On October 19, 1998, CFH entered into an Agreement and Plan of
Reorganization (the "Merger Agreement") with UPBNA. The Merger Agreement was
approved by the Boards of Directors of UPBNA and CFH on October 15, 1998, and
October 16, 1998, respectively.
Pursuant to the Merger Agreement, a newly-formed wholly-owned
subsidiary of UPBNA ("Merger Sub") will merge (the "Merger") with and into CFH,
with CFH being the surviving corporation resulting from the Merger (the
"Surviving Corporation") and becoming a wholly-owned subsidiary of UPBNA. Each
of the shares of CFH Common Stock not held by UPBNA will be converted into the
right to receive a cash payment of $17.50 (the "Cash Payment Amount"), without
interest. Each outstanding share of CFH Common Stock beneficially owned by
UPBNA or held by CFH as treasury stock will be canceled without consideration.
Each outstanding share of common stock, $1.00 par value, of Merger Sub will be
converted into one share of common stock of the Surviving Corporation. Each
outstanding option to purchase shares of CFH Common Stock ("CFH Options") held
by an employee of CFH or any of its subsidiaries, with an exercise price below
the Cash Payment Amount of $17.50, will be converted into options to purchase
the $5.00 par value common stock of UPC ("UPC Common Stock"). Certain CFH
Options held by directors of CFH will be canceled prior to the effective time
of the Merger in exchange for a cash payment equal to the difference (if
positive) between the Cash Payment Amount and the exercise price of such
options.
Upon consummation of the Merger, CFH will become a wholly-owned
subsidiary of UPBNA. It is anticipated that CFH and its subsidiaries will
maintain their current corporate structure and CFH's operations will remain
substantially unchanged, with the exception that the current Board of Directors
of CFH will be replaced with a board consisting solely of officers of UPBNA. As
a result of the Merger, the entire equity interest in CFH will be beneficially
owned by UPBNA. Therefore, following the Merger, the minority holders of CFH
Common Stock will no longer have an equity interest in CFH. Instead, each
holder of a minority interest in CFH Common Stock will have only the right to
receive the Cash Payment Amount for each share of CFH Common Stock held by such
holder. At the time that the Merger is consummated, UPBNA intends to cause CFH
to terminate the registration of CFH Common Stock under the Exchange Act and
its obligation to file reports, information statements and other information
with the Commission. In addition, UPBNA intends to cause CFH to terminate its
listing of shares for trading on the Nasdaq National Market.
UPBNA is filing concurrently herewith a Schedule 13E-3 transaction
statement which further describes the terms of the Merger.
ITEM 5. INTEREST IN SECURITIES OF CFH.
The 11,357,850 shares of CFH Common Stock held by UPBNA after the
transactions described in this Amendment No. 3 to Schedule 13 D represent
approximately 92.27% of the total number of the outstanding shares of CFH Common
Stock calculated on the basis of 12,309,012 shares outstanding as of August 31,
1998.
Other than as set forth in this Item 5, in item 5 of Amendment No. 2
to the Schedule 13 D filed by UPBNA with respect to certain purchases of CFH
Common Stock made September 9, 1998 ("Amendment No. 2") in Item 5 of Amendment
No. 1 to the Schedule 13 D filed by UPBNA with respect to certain purchases of
CFH Common Stock made August 31,
Page 3 of 5
<PAGE> 4
September 1, and September 3, 1998 ("Amendment No. 1"), and in Item 5 of the
Schedule 13 D filed by UPBNA with respect to certain purchases of CFH Common
Stock made August 10, 1998 (the "Original Schedule 13 D"), to the best of
UPBNA's knowledge (i) neither UPBNA nor any subsidiary or affiliate of UPBNA or
any of its or their executive officers or directors beneficially owns any shares
of CFH Common Stock, and (ii) other than the transactions described in Item 4,
in Item 4 of Amendment No. 2, Item 4 of Amendment No. 1 and in Item 4 of the
Original Schedule 13 D, there have been no transactions in the shares of CFH
Common Stock effected during the past 60 days by UPBNA, nor to the best of
UPBNA's knowledge, by any subsidiary or affiliate of UPBNA or any of its or
their executive officers or directors.
No other person is known by UPBNA to have the right or the power to
direct the receipt of dividends from, or the proceeds from the sale of CFH
Common Stock held by UPBNA.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF CFH.
None
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The Merger Agreement is attached hereto as Exhibit A.
Page 4 of 5
<PAGE> 5
SIGNATURE.
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
UNION PLANTERS BANK, NATIONAL ASSOCIATION
<TABLE>
<S> <C>
Date: October 26, 1998 By: /s/ M. Kirk Walters
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M. Kirk Walters
Senior Vice President, Treasurer and
Chief Accounting Officer
</TABLE>
Page 5 of 5
<PAGE> 6
Appendix to Item 2
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR EMPLOYMENT,
POSITION WITH NAME OF BUSINESS, PRINCIPAL BUSINESS,
NAME UPC/UPBNA/UPHC AND PRINCIPAL BUSINESS ADDRESS
- -------------------------- ------------------- -------------------------------------
<S> <C> <C>
Bill H. Abney Assistant Secretary Vice President
(UPHC) UNION PLANTERS CORPORATION
7130 Goodlet Farms Parkway
Memphis, Tennessee 38018
Albert M. Austin Director (UPC/UPBNA) Chairman
CANNON, AUSTIN AND CANNON,
INC. (real estate)
Suite 200
P.O. Box 172285
Germantown, Tennessee 38138
John E. Bennett Vice President (UPHC) Manager of Corporate Reporting
UNION PLANTERS CORPORATION
7130 Goodlet Farms Parkway
Memphis, Tennessee 38018
Marvin E. Bruce Director (UPC/UPBNA) Director and Chairman
TBC CORPORATION
(marketer/distributor of auto
replacement products)
476 West Racquet Club Place
Memphis, Tennessee 38117
George W. Bryan Director (UPC/UPBNA) Senior Vice President
SARA LEE CORPORATION
(Meat Group Division, meat processor
and packager)
Suite 300
8000 Centerview Parkway
Cordova, Tennessee 38018
James A. Gurley Executive Vice President Executive Vice President and
and Senior Risk Senior Risk Management Officer
Management Officer UNION PLANTERS CORPORATION and UNION
(UPC/UPBNA) PLANTERS BANK, NATIONAL
ASSOCIATION ("UPBNA")
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR EMPLOYMENT,
POSITION WITH NAME OF BUSINESS, PRINCIPAL BUSINESS,
NAME UPC/UPBNA/UPHC AND PRINCIPAL BUSINESS ADDRESS
- -------------------------- ------------------- -------------------------------------
<S> <C> <C>
James E. Harwood Director (UPC/UPBNA) President
STERLING EQUITIES
(provider of advisory services and
capital to small businesses)
Suite 124
845 Crossover Lane
Memphis, Tennessee 38117
E. James House, Jr. Corporate Secretary UPHC Manager, Legal Division
UNION PLANTERS CORPORATION
7130 Goodlet Farms Parkway
Memphis, Tennessee 38018
Parnell S. Lewis, Jr. Director (UPC/UPBNA) President
ANDERSON-TULLY COMPANY
(hardwood lumber products)
1242 North Second Street
Memphis, Tennessee 38101
C. J. Lowrance, III Director President
(UPC/UPBNA) LOWRANCE BROTHERS & COMPANY, INC.
(planter)
Highway 61
Driver, AR 72329
Jackson W. Moore President, President and Chief Operating Officer
Chief Operating Officer UNION PLANTERS CORPORATION and UPBNA
and Director 7130 Goodlett Farms Parkway
(UPC/UPBNA); Chairman of Memphis, Tennessee 38018
the Board of Directors
and President of UPHC
Stanley D. Overton Director (UPC/UPBNA) Retired; Former Chairman of
UNION PLANTERS BANK OF MIDDLE
TENNESSEE, N.A. (bank)
401 Union Street
Nashville, Tennessee 37219
</TABLE>
Page 2 of 4
<PAGE> 8
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR EMPLOYMENT,
POSITION WITH NAME OF BUSINESS, PRINCIPAL BUSINESS,
NAME UPC/UPBNA/UPHC AND PRINCIPAL BUSINESS ADDRESS
- -------------------------- ------------------- -------------------------------------
<S> <C> <C>
J. W. Parker Executive Vice President Executive Vice President and
and Chief Financial Chief Financial Officer
Officer (UPC/UPBNA) UNION PLANTERS CORPORATION
and UPBNA
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Benjamin W. Rawlins, Jr. Chairman of the Board Chairman of the Board and
and Chief Executive Chief Executive Officer
Officer (UPC/UPBNA) UNION PLANTERS CORPORATION
and UPBNA
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Dr. V. Lane Rawlins Director (UPC/UPBNA) President
UNIVERSITY OF MEMPHIS
341 Administration Building
Memphis, Tennessee 38152
Donald F. Schuppe Director (UPC/UPBNA) DFS SERVICE COMPANY
(consulting)
6448 Winfrey Place
Memphis, Tennessee 38120
J. Armistead Smith Executive Vice President Executive Vice President and
and Senior Lending Senior Lending Officer
Officer (UPC/UPBNA) UNION PLANTERS CORPORATION
and UPBNA
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
David M. Thomas Director (UPC/UPBNA) Retired: Former President of
MAGNOLIA FEDERAL BANK FOR
SAVINGS
1765 Camellia Drive
Greenville, Mississippi 38701
Richard A. Trippeer, Jr. Director (UPC/UPBNA) President
R.A. TRIPPEER, INC. (investments)
Suite 300
5865 Ridgeway Center Parkway
Memphis, Tennessee 38120
</TABLE>
Page 3 of 4
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<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION OR EMPLOYMENT,
POSITION WITH NAME OF BUSINESS, PRINCIPAL BUSINESS,
NAME UPC/UPBNA/UPHC AND PRINCIPAL BUSINESS ADDRESS
- -------------------------- ------------------- -------------------------------------
<S> <C> <C>
M. K. Walters Senior Vice President, Senior Vice President, Chief
Chief Accounting Accounting Officer, Treasurer
Officer, and Treasurer UNION PLANTERS CORPORATION
(UPC/UPBNA); Director, and UPBNA
Vice President and CFO 7130 Goodlett Farms Parkway
of UPHC Memphis, Tennessee 38018
Spence L. Wilson Director (UPC/UPBNA) President
KEMMONS WILSON, INC.
(provider of management advisory
services and venture capital,
developer of residential and
commercial real estate, and thrift
hold company)
1629 Winchester Road
Memphis, Tennessee 38116
</TABLE>
Page 4 of 4
<PAGE> 10
EXHIBIT A
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
CAPITAL FACTORS HOLDING, INC.
AND
UNION PLANTERS BANK, NATIONAL ASSOCIATION
DATED AS OF OCTOBER 19, 1998
<PAGE> 11
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
Parties........................................................................................1
Preamble.......................................................................................1
ARTICLE 1 - TRANSACTIONS AND TERMS OF MERGER...................................................1
1.1 Merger...........................................................................1
1.2 Time and Place of Closing........................................................1
1.3 Effective Time...................................................................1
ARTICLE 2 - TERMS OF MERGER....................................................................2
2.1 Articles of Incorporation........................................................2
2.2 Bylaws...........................................................................2
2.3 Directors and Officers...........................................................2
ARTICLE 3 - MANNER OF CONVERTING SHARES........................................................2
3.1 Conversion of Shares.............................................................2
3.2 Shares Held by CFH or UPBNA......................................................2
3.3 Conversion of Stock Options......................................................2
ARTICLE 4 - DELIVERY OF CONSIDERATION..........................................................3
4.1 Delivery Procedures..............................................................3
4.2 Rights of Former CFH Shareholders................................................4
4.3 UPBNA to Make Cash Available.....................................................4
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF CFH..............................................4
5.1 Organization, Standing, and Power................................................4
5.2 Authority; No Breach By Agreement................................................4
5.3 Capital Stock....................................................................5
5.4 Charter Provisions...............................................................5
5.5 Statements True and Correct......................................................5
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF UPBNA............................................5
6.1 Organization, Standing, and Power................................................5
6.2 Authority; No Breach By Agreement................................................6
6.3 Financing........................................................................6
6.4 Statements True and Correct......................................................6
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION...........................................6
7.1 Affirmative Covenants of CFH.....................................................6
7.2 Covenants of UPBNA...............................................................7
ARTICLE 8 - ADDITIONAL AGREEMENTS..............................................................7
8.1 Filing Schedule 13E-3; Delivery of Plan of Merger; Information Statement.........7
8.2 Filings with State Offices.......................................................7
8.3 Agreement as to Efforts to Consummate............................................7
8.4 State Takeover Laws..............................................................7
8.5 Indemnification..................................................................7
8.6 Merger Subsidiary Organization...................................................8
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE..................................8
9.1 Conditions to Obligations of Each Party..........................................8
9.2 Conditions to Obligations of UPBNA...............................................8
9.3 Conditions to Obligations of CFH.................................................9
ARTICLE 10 - TERMINATION.......................................................................9
10.1 Termination......................................................................9
</TABLE>
i
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<TABLE>
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10.2 Effect of Termination............................................................9
10.3 Non-Survival of Representations and Covenants....................................10
ARTICLE 11 - MISCELLANEOUS.....................................................................10
11.1 Definitions......................................................................10
11.2 Expenses.........................................................................13
11.3 Entire Agreement.................................................................13
11.4 Amendments.......................................................................14
11.5 Waivers..........................................................................14
11.6 Assignment.......................................................................14
11.7 Notices..........................................................................14
11.8 Governing Law....................................................................15
11.9 Counterparts.....................................................................15
11.10 Captions.........................................................................15
11.12 Interpretations..................................................................15
11.13 Enforcement of Agreement.........................................................15
11.14 Severability.....................................................................15
Signatures.....................................................................................16
</TABLE>
ii
<PAGE> 13
LIST OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
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<S> <C>
1. Plan of Merger. (Sections 1.1, 11.1).
</TABLE>
<PAGE> 14
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made and
entered into as of October 19, 1998, by and between CAPITAL FACTORS HOLDING,
INC. ("CFH"), a corporation organized and existing under the laws of the State
of Florida, with its principal office located in Boca Raton, Florida, and UNION
PLANTERS BANK, NATIONAL ASSOCIATION ("UPBNA"), a national banking association
organized and existing under the laws of the United States and the holder of
92.27% of the issued and outstanding common stock of CFH.
PREAMBLE
The Boards of Directors of CFH and UPBNA are of the opinion that the
transactions described herein are in the best interests of the parties and their
respective shareholders. This Agreement provides for the acquisition of the
remaining 7.73% of the issued and outstanding common stock of CFH by UPBNA
pursuant to the merger of a newly-formed, wholly-owned subsidiary of UPBNA
("Merger Sub") with and into CFH with CFH as the surviving corporation of the
merger. Prior to the merger, UPBNA will contribute its shares of CFH Common
Stock to Merger Sub and at the effective time of the merger, the outstanding
shares of the capital stock of CFH not held by Merger Sub shall be converted
into the right to receive a cash payment amount. As a result, CFH shall continue
to conduct its business and operations as a wholly-owned subsidiary of UPBNA.
The transactions described in this Agreement are subject to the satisfaction of
certain conditions described in this Agreement.
Certain terms used in this Agreement are defined in Section 11.1 of
this Agreement.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
1.1 MERGER. Subject to the terms and conditions of this Agreement, at
the Effective Time, Merger Sub shall be merged with and into CFH in accordance
with the provisions of Section 607.1104 of the FBCA (the "Merger") and with the
effect provided for in Section 607.1106 of the FBCA. CFH shall be the Surviving
Corporation of the Merger and shall continue to be governed by the Laws of the
State of Florida. The Merger shall be consummated pursuant to the terms of this
Agreement, which has been approved and adopted by the Boards of Directors of CFH
and UPBNA, and the Plan of Merger, in substantially the form of Exhibit 1, which
will be approved and adopted by the Boards of Directors of CFH and Merger Sub
upon the organization of Merger Sub.
1.2 TIME AND PLACE OF CLOSING. The Closing will take place at 9:00
A.M. Central Time on the date that the Effective Time occurs (or the immediately
preceding day if the Effective Time is earlier than 9:00 A.M. Central Time), or
at such other time as the Parties, acting through their duly authorized
officers, may mutually agree. The place of Closing shall be at the offices of
UPBNA, in Memphis, Tennessee, or such other place as may be mutually agreed upon
by the Parties.
1.3 EFFECTIVE TIME. The Merger and other transactions contemplated by
this Agreement shall become effective on the date and at the time the Florida
Articles of Merger reflecting the Merger shall become effective with the
Secretary of State of the State of Florida (the "Effective Time"). Subject to
the terms and conditions hereof, unless otherwise mutually agreed upon in
writing by the duly authorized officers of each Party, the Parties shall use
their reasonable efforts to cause the Effective Time to occur on the 30th day
after the date that the Information Statement, this Agreement and the Plan of
Merger are mailed to the Minority Shareholders, as provided for in Section
601.1104 of the FBCA.
1
<PAGE> 15
ARTICLE 2
TERMS OF MERGER
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of CFH in
effect immediately prior to the Effective Time shall be the Articles of
Incorporation of the Surviving Corporation after the Effective Time until
otherwise amended or repealed.
2.2 BYLAWS. The Bylaws of CFH in effect immediately prior to the
Effective Time shall be the Bylaws of the Surviving Corporation after the
Effective Time until otherwise amended or repealed.
2.3 DIRECTORS AND OFFICERS. The directors of Merger Sub in office
immediately prior to the Effective Time, together with such additional persons
as may thereafter be elected, shall serve as the directors of the Surviving
Corporation from and after the Effective Time in accordance with the Bylaws of
the Surviving Corporation. The officers of CFH in office immediately prior to
the Effective Time, together with such additional persons as may thereafter be
elected, shall serve as the officers of the Surviving Corporation from and after
the Effective Time in accordance with the Bylaws of the Surviving Corporation.
ARTICLE 3
MANNER OF CONVERTING SHARES
3.1 CONVERSION OF SHARES. Subject to the provisions of this Article 3,
at the Effective Time, by virtue of the Merger and without any action on the
part of the holders thereof, the shares of the constituent corporations shall be
converted as follows:
(a) Each share of UPBNA Common Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and
outstanding from and after the Effective Time.
(b) Each share of Merger Sub Common Stock issued and
outstanding at the Effective Time shall be converted into and
exchanged for one share of CFH Common Stock.
(c) Each share of CFH Common Stock (excluding shares held
by CFH or any of its Subsidiaries or by UPBNA or any of its
Subsidiaries, in each case other than in a fiduciary capacity or
as a result of debts previously contracted) issued and outstanding
immediately prior to the Effective Time shall be cancelled and
converted into the right to receive in consideration thereof a
cash payment from UPBNA in the amount of the Cash Payment Amount.
3.2 SHARES HELD BY CFH OR UPBNA. Each of the shares of CFH Common
Stock held by CFH or any of its Subsidiaries or, UPBNA, or any of its
Subsidiaries, in each case other than in a fiduciary capacity or as a result of
debts previously contracted, shall be canceled and retired at the Effective Time
and no consideration shall be issued in exchange therefor.
3.3 CONVERSION OF STOCK OPTIONS.
(a) At the Effective Time, each option to purchase shares of CFH
Common Stock pursuant to stock options granted by CFH under the CFH Stock Option
Plan each, a ("CFH Option") held by employees of CFH or any of its Subsidiaries
with an exercise price which is less than the Cash Payment Amount, which is
outstanding at the Effective Time, whether or not then exercisable, shall be
converted into and become rights with respect to UPC Common Stock, and UPC shall
assume such CFH Option, in accordance with the terms of the CFH Stock Option
Plan and stock option or other agreement by which it is evidenced, except that
from and after the Effective Time, (i) UPC and its Salary and Benefits Committee
shall be substituted for CFH and the Committee of
2
<PAGE> 16
CFH's Board of Directors (including, if applicable, the entire Board of
Directors of CFH) or other independent committee administering the CFH Stock
Option Plan, (ii) each CFH Option assumed by UPC may be exercised solely for
shares of UPC Common Stock, (iii) the number of shares of UPC Common Stock
subject to such CFH Option shall be equal to the product of (A) the number of
shares of CFH Common Stock for which such CFH Option is exercisable and (B) the
quotient obtained by dividing the Cash Payment Amount by the Average Closing
Price and rounding down to the nearest whole share, and (iv) the per share
exercise price under each such CFH Option shall be adjusted by dividing the per
share exercise price under each such CFH Option by the quotient obtained by
dividing the Cash Payment Amount by the Average Closing Price and rounding up to
the nearest cent. Notwithstanding the clauses (iii) and (iv) of the first
sentence of this Section 3.6, each CFH Option which is an "incentive stock
option" shall be adjusted as required by Section 424 of the Internal Revenue
Code, and the regulations promulgated thereunder, so as not to constitute a
modification, extension or renewal of the option, within the meaning of Section
424(h) of the Internal Revenue Code. UPC and CFH agree to take all necessary
steps to effectuate the foregoing provisions of this Section 3.6.
(b) Prior to the Effective Time, each outstanding CFH Option held
by non-employee directors of CFH with an exercise price which is less than the
Cash Payment Amount, which is outstanding at the Effective Time, whether or not
exercisable, shall be cancelled in exchange for a cash payment equal to the
difference between the Cash Payment Amount and the exercise price of such
option.
(c) At the Effective Time, each outstanding CFH Option, whether
or not exercisable, with an exercise price which is greater than the Cash
Payment Amount, shall be cancelled with no consideration in exchange therefore.
(d) As soon as practicable after the Effective Time, UPC shall
deliver to the participants in the CFH Stock Option Plan an appropriate notice
setting forth such participant's rights pursuant thereto and the grants subject
to the CFH Stock Option Plan shall continue in effect on the same terms and
conditions (subject to the adjustments required by Section 3.6(a) after giving
effect to the Merger), and UPC shall comply with the terms of the CFH Stock
Option Plan to ensure, to the extent required by, and subject to the provisions
of, the CFH Stock Option Plan, that CFH Options which qualified as incentive
stock options prior to the Effective Time continue to qualify as incentive stock
options after the Effective Time. As soon as practicable after the Effective
Time, UPC shall file a registration statement on Form S-8 (or any successor or
other appropriate forms), with respect to the shares of UPC Common Stock subject
to such options and shall use its reasonable efforts to maintain the
effectiveness of such registration statements (and maintain the current status
of the prospectus or prospectuses contained therein) for so long as such options
remain outstanding.
ARTICLE 4
DELIVERY OF CONSIDERATION
4.1 DELIVERY PROCEDURES. Promptly after the Effective Time, UPBNA and
the Surviving Corporation shall cause the exchange agent selected by UPBNA (the
"Exchange Agent") to mail to the Minority Shareholders of CFH appropriate
transmittal materials (which shall specify that delivery shall be effected, and
risk of loss and title to the certificates theretofore representing shares of
CFH Common Stock shall pass, only upon proper delivery of such certificates to
the Exchange Agent). After the Effective Time, each Minority Shareholder
promptly upon the surrender of the certificate or certificates representing such
shares to the Exchange Agent, shall receive in exchange therefor the
consideration provided in Section 3.1 of this Agreement (without interest
thereon) pursuant to Section 4.2 of this Agreement. UPBNA shall not be obligated
to deliver any cash payments to which any Minority Shareholder is entitled as a
result of the Merger, until such holder surrenders such holder's certificate or
certificates representing the shares of CFH Common Stock for exchange as
provided in this Section 4.1, or otherwise complies with the procedures of the
Exchange Agent with respect to lost, stolen, or destroyed certificates. The
certificate or certificates of CFH Common Stock so surrendered shall be duly
endorsed as the Exchange Agent
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may require. Any other provision of this Agreement notwithstanding, neither
UPBNA, CFH, nor the Exchange Agent shall be liable to a holder of CFH Common
Stock for any amounts paid or property delivered in good faith to a public
official pursuant to any applicable abandoned property Law.
4.2 RIGHTS OF FORMER CFH SHAREHOLDERS. At the Effective Time, the
stock transfer books of CFH shall be closed as to holders of CFH Common Stock
immediately prior to the Effective Time and no transfer of CFH Common Stock by
any such holder shall thereafter be made or recognized. Until surrendered for
exchange in accordance with the provisions of Section 4.1 of this Agreement,
each certificate held by a Minority Shareholder theretofore representing shares
of CFH Common Stock shall from and after the Effective Time represent for all
purposes only the right to receive the consideration provided in Section 3.1 of
this Agreement in exchange therefor.
4.3 UPBNA TO MAKE CASH AVAILABLE. At or prior to the Effective Time,
UPBNA shall deposit, or shall cause to be deposited, with the Exchange Agent,
for the benefit of the Minority Shareholders, for exchange in accordance with
this Article 4, the requisite aggregate amount of the Cash Payment Amount to be
paid pursuant to Sections 3.1(c) and 3.3 in exchange for outstanding shares of
CFH Common Stock and CFH Options.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF CFH
CFH hereby represents and warrants to UPBNA that:
5.1 ORGANIZATION, STANDING, AND POWER. CFH is a corporation duly
organized and validly existing, and in good standing under the Laws of the State
of Florida, and has the corporate power and authority to carry on its business
as now conducted and to own, lease, and operate its material Assets. CFH is duly
qualified or licensed to transact business as a foreign corporation in good
standing in the States of the United States where the character of its Assets or
the nature or conduct of its business requires it to be so qualified or
licensed, except for such jurisdictions in which the failure to be so qualified
or licensed is not reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on CFH.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) CFH has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this Agreement and the Plan
of Merger and to consummate the transactions contemplated hereby and thereby.
The execution, delivery, and performance of this Agreement and the Plan of
Merger and the consummation of the transactions contemplated herein and therein,
including the Merger, have been duly and validly authorized by all necessary
corporate action in respect thereof on the part of CFH. This Agreement
represents a legal, valid, and binding obligation of CFH, enforceable against
CFH in accordance with its terms (except in all cases as such enforceability may
be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium,
or similar Laws affecting the enforcement of creditors' rights generally and
(ii) application of, and limitations on the application of, equitable principles
and remedies, including limitations on the availability of the equitable remedy
of specific performance or injunctive relief).
(b) Neither the execution and delivery of this Agreement by CFH,
nor the consummation by CFH of the transactions contemplated hereby, nor
compliance by CFH with any of the provisions hereof, will (i) conflict with or
result in a breach of any provision of CFH's Articles of Incorporation or
Bylaws, or (ii) constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any Asset of any CFH
Company under, any Contract or Permit of any CFH Company, where such Default or
Lien, or any failure to obtain such Consent, is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on CFH, or violate
any Law or Order applicable to any CFH Company or any of their respective
material Assets where such violation would have, individually or in the
aggregate, a Material Adverse Effect on CFH.
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(c) Other than in connection or compliance with the provisions of
the Securities Laws, applicable state corporate and securities Laws, and rules
of the NASD, and other than Consents required from Regulatory Authorities, and
other than notices to or filings with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation or both with respect to any employee
benefit plans, or under the HSR Act, and other than Consents, filings, or
notifications which, if not obtained or made, are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on CFH, no notice
to, filing with, or Consent of, any public body or authority is necessary for
the consummation by CFH of the Merger and the other transactions contemplated in
this Agreement.
5.3 CAPITAL STOCK. The authorized capital stock of CFH consists of:
25,000,000 shares of CFH Common Stock, of which 12,309,012 shares are issued and
outstanding as of the date of this Agreement and not more than 12,309,012 shares
will be issued and outstanding at the Effective Time. CFH has reserved 1,300,000
shares of CFH Common Stock for issuance under the CFH Stock Option Plan,
pursuant to which options to purchase not more than 250,925 shares of CFH Common
Stock are outstanding and exercisable as of the date of this Agreement. Options
issued under the CFH Stock Option Plan may not be exercised without the prior
consent of UPBNA as provided for in the CFH Stock Option Plan. All of the issued
and outstanding shares of capital stock of CFH are duly and validly issued and
outstanding and are fully paid and nonassessable under the FBCA. None of the
outstanding shares of capital stock of CFH has been issued in violation of any
preemptive rights of the current or past shareholders of CFH. Except as set
forth above, there are no shares of capital stock or other equity securities of
CFH outstanding and no outstanding Rights relating to the capital stock of CFH.
5.4 CHARTER PROVISIONS. Each CFH Company has taken all action so that
the entering into of this Agreement and the consummation of the Merger and the
other transactions contemplated by this Agreement do not and will not result in
the grant of any rights to any Person under the Articles of Incorporation,
Bylaws, or other governing instruments of any CFH Company or restrict or impair
the ability of UPBNA or Merger Sub to vote, or otherwise to exercise the rights
of a shareholder with respect to, shares of any CFH Company that may be directly
or indirectly acquired or controlled by it.
5.5 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by any CFH Company or any Affiliate thereof for inclusion in the
Schedule 13E-3 or the Information Statement to be mailed to CFH shareholders,
and any other documents to be filed with the SEC in connection with the
transactions contemplated hereby, will, at the respective time such documents
are filed, and with respect to the Information Statement, when mailed to the
shareholders of CFH, contain any misstatement of material fact, or omit to state
any material fact required to be stated thereunder or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF UPBNA
UPBNA hereby represents and warrants to CFH as follows:
6.1 ORGANIZATION, STANDING, AND POWER. UPBNA is a national banking
association duly organized, validly existing, and in good standing under the
Laws of the United States, and has the corporate power and authority to carry on
its business as now conducted and to own, lease, and operate its material
Assets. UPBNA is duly qualified or licensed to transact business as a foreign
corporation in good standing in the States of the United States and foreign
jurisdictions where the character of its Assets or the nature or conduct of its
business requires it to be so qualified or licensed, except for such
jurisdictions in which the failure to be so qualified or licensed is not
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on UPBNA.
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6.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) UPBNA has the corporate power and authority necessary to
execute, deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated herein, including the Merger, have been duly and validly authorized
by all necessary corporate action in respect thereof on the part of UPBNA. This
Agreement represents a legal, valid, and binding obligation of UPBNA,
enforceable against UPBNA in accordance with its terms (except in all cases as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) Neither the execution and delivery of this Agreement by UPBNA,
nor the consummation by UPBNA of the transactions contemplated hereby, nor
compliance by UPBNA with any of the provisions hereof, will (i) conflict with or
result in a breach of any provision of UPBNA's Articles of Association or
Bylaws, or (ii) constitute or result in a Default under, or require any Consent
pursuant to, or result in the creation of any Lien on any Asset of UPBNA, or any
Contract or Permit of UPBNA, where such Default or Lien, or any failure to
obtain such Consent, is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPBNA, or violate any Law or Order
applicable to UPBNA or any of its material Assets.
(c) Other than in connection or compliance with the provisions of
the Securities Laws, applicable state corporate and securities Laws, and rules
of the NASD, and other than notices to or filings with the Internal Revenue
Service or the Pension Benefit Guaranty Corporation, or both, with respect to
any employee benefit plans, or under the HSR Act, and other than Consents,
filings, or notifications which, if not obtained or made, are not reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
UPBNA or Merger Sub, no notice to, filing with, or Consent of, any public body
or authority is necessary for the consummation by UPBNA of the Merger and the
other transactions contemplated in this Agreement.
6.3 FINANCING. At the Effective Time, UPBNA will have funds sufficient
to enable it to carry out its obligations under this Agreement.
6.4 STATEMENTS TRUE AND CORRECT. None of the information supplied or
to be supplied by UPBNA or any Affiliate thereof for inclusion in the Schedule
13E-3 or the Information Statement to be mailed to CFH shareholders, and any
other documents to be filed with the SEC in connection with the transactions
contemplated hereby, will, at the respective time such documents are filed, and
with respect to the Information Statement, when mailed to the shareholders of
CFH, contain any misstatement of material fact, or omit to state any material
fact required to be stated thereunder or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
7.1 AFFIRMATIVE COVENANTS OF CFH. Unless the prior written consent of
a duly authorized officer of UPBNA shall have been obtained, and except as
otherwise expressly contemplated herein, CFH shall and shall cause each of its
Subsidiaries to, from the date of this Agreement until the Effective Time or
termination of this Agreement, (i) operate its business only in the usual,
regular, and ordinary course, (ii) preserve intact in all material respects its
business organization and Assets and maintain its rights and franchises, (iii)
take no action which would (x) materially adversely affect the ability of any
Party to obtain any Consents required for the transactions contemplated hereby
or (y) materially adversely affect the ability of any Party to perform its
covenants and agreements under this Agreement, and (iv) take no action to issue
or authorize the issuance of any shares of CFH Common Stock or CFH Options.
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7.2 COVENANTS OF UPBNA. From the date of this Agreement until the
earlier of the Effective Time or the termination of this Agreement, UPBNA
covenants and agrees that it shall and shall cause each of its Subsidiaries to
take no action which would (i) materially adversely affect the ability of any
Party to obtain any Consents required for the transactions contemplated hereby,
or (ii) materially adversely affect the ability of any Party to perform its
covenants and agreements under this Agreement.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 FILING SCHEDULE 13E-3; DELIVERY OF PLAN OF MERGER; INFORMATION
STATEMENT. As soon as reasonably practicable after the execution of this
Agreement, UPBNA shall prepare and file the Schedule 13E-3. UPBNA shall also
promptly prepare and mail the Information Statement to the Minority Shareholders
with a copy of this Agreement and the Plan of Merger, and CFH shall furnish to
UPBNA all information concerning CFH and the CFH Companies that UPBNA may
reasonably request in connection with such Information Statement.
8.2 FILINGS WITH STATE OFFICES. Upon the terms and subject to the
conditions of this Agreement, CFH shall execute and file the Florida Articles of
Merger with the Secretary of State of the State of Florida.
8.3 AGREEMENT AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, each Party agrees to use, and to cause its
Subsidiaries to use, its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper, or
advisable under applicable Laws to consummate and make effective, as soon as
practicable after the date of this Agreement, the transactions contemplated by
this Agreement, including using its reasonable efforts to lift or rescind any
Order adversely affecting its ability to consummate the transactions
contemplated herein and to cause to be satisfied the conditions referred to in
Article 9 of this Agreement; provided, that nothing herein shall preclude either
Party from exercising its rights under this Agreement. Each Party shall use, and
shall cause each of its Subsidiaries to use, its reasonable efforts to obtain
all Consents necessary or desirable for the consummation of the transactions
contemplated by this Agreement.
8.4 STATE TAKEOVER LAWS. Each CFH Company shall take all necessary
steps to exempt the transactions contemplated by this Agreement from, if
applicable, or if necessary, challenge, the applicability of Section 607.0901 of
the FBCA.
8.5 INDEMNIFICATION.
(a) For a period of six years after the Effective Time, UPBNA
shall, and shall cause the Surviving Corporation to, indemnify, defend, and hold
harmless the present and former directors, officers, employees, and agents of
each of the CFH Companies (each, an "Indemnified Party") against all Liabilities
arising out of actions or omissions occurring at or prior to the Effective Time
(including the transactions contemplated by this Agreement) to the full extent
permitted under Florida Law and by CFH's Articles of Incorporation and Bylaws as
in effect on the date hereof, including provisions relating to advances of
expenses incurred in the defense of any Litigation, provided, however, that the
indemnification provided by this Section 8.5(a) shall not apply to any claim
against an Indemnified Party if such Indemnified Party knew of the existence of
the claim and failed to make a good faith effort to require CFH to notify its
director and officer liability insurance carrier of the existence of such claim
prior to the Effective Time, and provided, further, that all rights to
indemnification in respect of any claim (a "claim") made in writing received by
UPBNA within such six-year period provided hereby shall continue until final
disposition of the claim. Without limiting the foregoing, in any case in which
approval is required to effectuate any indemnification, the determination of any
such approval shall be made, at the election of the Indemnified Party, by
independent counsel mutually agreed upon between UPBNA and the Indemnified
Party.
(b) Any Indemnified Party wishing to claim indemnification under
paragraph (a) of this Section 8.5, upon learning of any such Liability or
Litigation, shall promptly notify UPBNA thereof. In the event of
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any such Litigation (whether arising before or after the Effective Time), (i)
UPBNA or CFH shall have the right to assume the defense thereof and UPBNA shall
not be liable to such Indemnified Parties for any legal expenses of other
counsel or any other expenses subsequently incurred by such Indemnified Parties
in connection with the defense thereof, except that if UPBNA or CFH elects not
to assume such defense or counsel for the Indemnified Parties advises in writing
that there are material substantive issues which raise conflicts of interest
between UPBNA or CFH and the Indemnified Parties, the Indemnified Parties may
retain counsel satisfactory to them, and UPBNA or CFH shall pay all reasonable
fees and expenses of such counsel for the Indemnified Parties promptly as
statements therefor are received; provided, that (i) UPBNA shall be obligated
pursuant to this paragraph (b) to pay for only one firm of counsel for all
Indemnified Parties in any jurisdiction, (ii) the Indemnified Parties will
cooperate (to the extent reasonably appropriate under the circumstances) in the
defense of any such Litigation, and (iii) UPBNA shall not be liable for any
settlement effected without its prior written consent; and provided further that
UPBNA shall not have any obligation hereunder to any Indemnified Party when and
if a court of competent jurisdiction shall determine, and such determination
shall have become final, that the indemnification of such Indemnified Party in
the manner contemplated hereby is prohibited by applicable Law.
8.6 MERGER SUB ORGANIZATION. UPBNA shall organize Merger Sub under the
Laws of the State of Florida. Prior to the Effective Time, the outstanding
capital stock of Merger Sub shall consist of 1,000 shares of Merger Sub Common
Stock, all of which shares shall be owned by UPBNA. Prior to the Effective Time,
Merger Sub shall not (i) conduct any business operations whatsoever or (ii)
enter into any Contract or agreement of any kind, acquire any assets or incur
any Liability, except as may be specifically contemplated by this Agreement or
the Plan of Merger or as the Parties may otherwise agree.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each Party to consummate the Merger and the other transactions
contemplated hereby are subject to the satisfaction of the following conditions,
unless waived by both Parties pursuant to Section 11.5 of this Agreement:
(a) CONSENTS AND APPROVALS. Each Party shall have obtained any
and all Consents required for consummation of the Merger or for the preventing
of any Default under any Contract or Permit of such Party which, if not obtained
or made, is reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on such Party. No Consent so obtained which is necessary
to consummate the transactions contemplated hereby shall be conditioned or
restricted in a manner which in the reasonable judgment of the Board of
Directors of UPBNA would so materially adversely impact the economic or business
benefits of the transactions contemplated by this Agreement to UPBNA that, had
such condition or restriction been known, UPBNA would not, in its reasonable
judgment, have entered into this Agreement.
(b) LEGAL PROCEEDINGS. No court or governmental or regulatory
authority of competent jurisdiction shall have enacted, issued, promulgated,
enforced, or entered any Law or Order (whether temporary, preliminary, or
permanent) or taken any other action which prohibits, restricts, or makes
illegal consummation of the transactions contemplated by this Agreement.
(c) OPINION OF FINANCIAL ADVISOR. The Parties shall have received
an opinion of Stifel Nicolaus & Company, Inc., which shall not have been
withdrawn, to the effect that the Cash Payment Amount is fair to the Minority
Shareholders from a financial point of view.
9.2 CONDITIONS TO OBLIGATIONS OF UPBNA. The obligations of UPBNA to
consummate the Merger and the other transactions contemplated hereby are subject
to the satisfaction of the following conditions, unless waived by UPBNA pursuant
to 11.5(a) of this Agreement:
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(a) REPRESENTATIONS AND WARRANTIES. For purposes of this Section
9.2(a), the accuracy of the representations and warranties of CFH set forth in
this Agreement shall be assessed as of the date of this Agreement and as of the
Effective Time with the same effect as though all such representations and
warranties had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date shall
speak only as of such date). The representations and warranties of CFH set forth
in Section 5.3 of this Agreement shall be true and correct in all material
respects. There shall not exist inaccuracies in the representations and
warranties of CFH set forth in this Agreement (including the representations and
warranties set forth in Section 5.3 of the Agreement) such that the aggregate
effect of such inaccuracies has, or is reasonably likely to have, a Material
Adverse Effect on CFH; provided that for purposes of this sentence only those
representations and warranties which are qualified by references to "material"
or "Material Adverse Effect" shall be deemed not to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of the
agreements and covenants of CFH to be performed and complied with pursuant to
this Agreement and the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied with in all material
respects.
9.3 CONDITIONS TO OBLIGATIONS OF CFH. The obligations of CFH to
consummate the Merger and the other transactions contemplated hereby are subject
to the satisfaction of the following conditions, unless waived by CFH pursuant
to Section 11.5 (b) of this Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of this Section
9.3(a), the accuracy of the representations and warranties of UPBNA set forth in
this Agreement shall be assessed as of the date of this Agreement and as of the
Effective Time with the same effect as though all such representations and
warranties had been made on and as of the Effective Time (provided that
representations and warranties which are confined to a specified date shall
speak only as of such date). There shall not exist inaccuracies in the
representations and warranties of UPBNA set forth in this Agreement such that
the aggregate effect of such inaccuracies has, or is reasonably likely to have,
a Material Adverse Effect on UPBNA; provided that for purposes of this sentence
only those representations and warranties which are qualified by references to
"material" or "Material Adverse Effect" shall be deemed not to include such
qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and all of the
agreements and covenants of UPBNA to be performed and complied with pursuant to
this Agreement and the other agreements contemplated hereby prior to the
Effective Time shall have been duly performed and complied with in all material
respects.
ARTICLE 10
TERMINATION
10.1 TERMINATION. Notwithstanding any other provision of this
Agreement, this Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Time:
(a) By mutual consent of the Board of Directors of UPBNA and the
Board of Directors of CFH; or
(b) By the Board of Directors of either Party, if there shall be
enacted any Law that makes consummation of the Merger illegal or
otherwise prohibited or if any Order enjoining either Party from
consummating the Merger is entered and such order shall become final and
nonappealable.
10.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 10.1 of this Agreement, this
Agreement shall become void and have no effect, and neither Party shall have any
claim or legal right to redress, whether for breach of contract or otherwise, as
a result of a
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breach of any representation, warranty, covenant, or condition of this
Agreement, except that the provisions of this Section 10.2 shall survive any
such termination and abandonment.
10.3 NON-SURVIVAL OF REPRESENTATIONS AND COVENANTS. The respective
representations, warranties, obligations, covenants, and agreements of the
Parties shall not survive the Effective Time except this Section 10.3, Articles
2, 3, 4, and 11 of this Agreement, and Section 8.5 of this Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 DEFINITIONS. Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
"AGREEMENT" shall mean this Agreement and Plan of Reorganization,
including the Exhibits delivered pursuant hereto and incorporated herein
by reference.
"AVERAGE CLOSING PRICE" shall mean the average of the closing
prices of UPC Common Stock on the NYSE (as reported by the Wall Street
Journal or, if not reported thereby, another authoritative source chosen
by UPBNA) during the ten full trading day period ending on the last full
trading day immediately prior to the Effective Time.
"ASSETS" of a Person shall mean all of the assets, properties,
businesses, and rights of such Person of every kind, nature, character,
and description, whether real, personal or mixed, tangible or intangible,
accrued or contingent, or otherwise relating to or utilized in such
Person's business, directly or indirectly, in whole or in part, whether
or not carried on the books and records of such Person, and whether or
not owned in the name of such Person or any Affiliate of such Person and
wherever located.
"CFH COMMON STOCK" shall mean the $0.01 par value common stock of
CFH.
"CFH COMPANIES" shall mean, collectively, CFH and all
Subsidiaries of CFH.
"CFH OPTION" shall have the meaning ascribed to it in Section 3.3
of this Agreement.
"CFH STOCK OPTION PLAN" shall mean the existing stock option plan
of CFH.
"CASH PAYMENT AMOUNT" shall mean an amount in cash equal to
$17.50.
"CLOSING" shall mean the closing of the transactions contemplated
hereby, as described in Section 1.2 of this Agreement.
"CONSENT" shall mean any consent, approval, authorization,
clearance, exemption, waiver, or similar affirmation by any Person
pursuant to any Contract, Law, Order, or Permit.
"CONTRACT" shall mean any written or oral agreement, arrangement,
authorization, commitment, contract, indenture, instrument, lease,
obligation, plan, practice, restriction, understanding or undertaking of
any kind or character, or other document to which any Person is a party
or that is binding on any Person or its capital stock, Assets, or
business.
"DEFAULT" shall mean (i) any breach or violation of or default
under any Contract, Order, or Permit, (ii) any occurrence of any event
that with the passage of time or the giving of control or both would
constitute a breach or violation of or default under any Contract, Order,
or Permit, or (iii) any occurrence of
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any event that with or without the passage of time or the giving of
notice would give rise to a right to terminate or revoke, change the
current terms of, or renegotiate, or to accelerate, increase, or impose
any Liability under, any Contract, Order, or Permit where, in any such
event, such Default is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on a Party.
"EFFECTIVE TIME" shall have the meaning ascribed to it in Section
1.3 of this Agreement.
"FBCA" shall mean the Florida Business Corporation Act.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"HSR ACT" shall mean Section 7A of the Clayton Act, as added by
Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
"INFORMATION STATEMENT" shall mean the disclosure statement to be
delivered to the Minority Shareholders.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated thereunder.
"LAW" shall mean any code, law, ordinance, regulation, reporting
or licensing requirement, rule, or statute applicable to a Person or its
Assets, Liabilities, or business, including those promulgated,
interpreted, or enforced by any of the Regulatory Authorities.
"LIABILITY" shall mean any direct or indirect, primary or
secondary liability, indebtedness, obligation, penalty, cost, or expense
(including costs of investigation, collection, and defense), claim,
deficiency, guaranty, or endorsement of or by any Person (other than
endorsements of notes, bills, checks, and drafts presented for collection
or deposit in the ordinary course of business) of any type, whether
accrued, absolute, or contingent, liquidated or unliquidated, matured or
unmatured, or otherwise.
"LIEN" shall mean any conditional sale agreement, default of
title, easement, encroachment, encumbrance, hypothecation, infringement,
lien, mortgage, pledge, reservation, restriction, security interest,
title retention, or other security arrangement, or any adverse right or
interest, charge, or claim of any nature whatsoever of, on, or with
respect to any property or property interest, other than (i) Liens for
current property or other Taxes not yet due and payable, (ii) such
imperfections of title and encumbrances, if any, as do not materially
detract from the value or interfere with the present use of any of such
Party's Assets, (iii) for depository institution Subsidiaries of a Party,
pledges to secure deposits, and other Liens incurred in the ordinary
course of the banking business, and (iv) Liens that arise by operation of
Law with respect to Liabilities that are not delinquent or are being
contested in good faith.
"LITIGATION" shall mean any action, arbitration, cause of action,
claim, complaint, criminal prosecution, demand letter, governmental or
other examination or investigation, hearing, inquiry, administrative, or
other proceeding, or notice (written or oral) by any Person alleging
potential Liability or requesting information about a potential claim
relating to or affecting a Party, its business, its Assets (including
Contracts related to it), or the transactions contemplated by this
Agreement, but shall not include regular, periodic examinations of
depository institutions and their Affiliates by Regulatory Authorities.
"MATERIAL" for purposes of this Agreement shall be determined in
light of the facts and circumstances of the matter in question; provided
that any specific monetary amount stated in this Agreement shall
determine materiality in that instance.
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"MATERIAL ADVERSE EFFECT" on a Party shall mean an event, change,
or occurrence which, together with any other event, change, or
occurrence, has a material adverse impact on (i) the financial position,
business, or results of operations of such Party and its Subsidiaries,
taken as a whole, or (ii) the ability of such Party to perform its
obligations under this Agreement or to consummate the Merger or the other
transactions contemplated by this Agreement, provided that "material
adverse effect" shall not be deemed to include the impact of (a) changes
in banking and similar Laws of general applicability or interpretations
thereof by courts or governmental authorities, (b) changes in GAAP or
regulatory accounting principles generally applicable to the parties, (c)
expenses incurred by CFH and CFH Companies in connection with the
transactions contemplated by this Agreement, (d) actions and omissions of
a Party (or any of its Subsidiaries) taken with the prior informed
consent of the other Party in contemplation of the transactions
contemplated hereby, and (e) the Merger and compliance with the
provisions of this Agreement on the operating performance of the Parties.
"MERGER" shall have the meaning ascribed to it in Section 1.1 of
this Agreement.
"MERGER SUB" shall mean the corporation to be formed as a
wholly-owned subsidiary of UPBNA, organized and existing under the Laws
of the State of Florida.
"MERGER SUB COMMON STOCK" shall mean the $1.00 par value common
stock of Merger Sub.
"MINORITY SHAREHOLDERS" shall mean all holders of CFH Common
Stock other than UPBNA and Merger Sub.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"NYSE" shall mean the New York Stock Exchange, Inc.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"ORDER" shall mean any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or
writ of any federal, state, local, or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Regulatory Authority.
"PARTY" shall mean either CFH or UPBNA, and "PARTIES" shall mean
both CFH and UPBNA.
"PERMIT" shall mean any federal, state, and local governmental
approval, authorization, certificate, easement, filing, franchise,
license, notice, permit, or right to which any Person is a party or that
is or may be binding upon or inure to the benefit of any Person or its
securities, Assets, or business.
"PERSON" shall mean a natural person or any legal, commercial, or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability
company, trust, business association, group acting in concert, or any
person acting in a representative capacity.
"PLAN OF MERGER" shall mean the Plan of Merger between CFH and
Merger Sub in substantially the form of Exhibit 1.
"RIGHTS" shall mean all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, scrip, understandings,
warrants, or other binding obligations of any character whatsoever
relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of a Person or by which a Person is or
may be bound to issue additional shares of its capital stock or other
Rights.
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"SCHEDULE 13E-3" shall mean the Schedule 13E-3 to be filed by
UPBNA relating to the Merger as required by the 1934 Act.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SECURITIES LAWS" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act
of 1940, as amended, the Trust Indenture Act of 1939, as amended, and the
rules and regulations of any Regulatory Authority promulgated thereunder.
"SUBSIDIARIES" shall mean all those corporations, banks,
associations, or other entities of which the entity in question owns or
controls 50% or more of the outstanding equity securities either directly
or through an unbroken chain of entities as to each of which 50% or more
of the outstanding equity securities is owned directly or indirectly by
its parent; provided, there shall not be included any such entity
acquired through foreclosure or any such entity the equity securities of
which are owned or controlled in a fiduciary capacity.
"SURVIVING CORPORATION" shall mean CFH as the Surviving
Corporation resulting from the Merger.
"TAX" or "TAXES" shall mean all federal, state, and local taxes,
charges, fees, levies, imposts, duties, or other assessments, including
income, gross receipts, excise, employment, sales, use, transfer,
license, payroll, franchise, severance, stamp, occupation, windfall
profits, environmental, federal highway use, commercial rent, customs
duties, capital stock, paid-up capital, profits, withholding, Social
Security, single business and unemployment, disability, real property,
personal property, registration, ad valorem, value added, alternative or
add-on minimum, estimated, or other tax or governmental fee of any kind
whatsoever, imposed or required to be withheld by the United States or
any state, local, foreign government or subdivision or agency thereof,
including any interest, penalties or additions thereto.
"UPC COMMON STOCK" shall mean the $5.00 par value common stock of
UPC.
"UPBNA COMMON STOCK" shall mean the $10.00 par value common stock
of UPBNA.
Any singular term in this Agreement shall be deemed to include the plural, and
any plural term the singular. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed followed by the
words "without limitation."
11.2 EXPENSES.
(a) Except as otherwise provided in this Section 11.2, each of
the Parties shall bear and pay all direct costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including filing, fees, and expenses of its own financial or other consultants,
investment bankers, accountants, and counsel, except that UPBNA shall bear and
pay the filing fees payable in connection with the Schedule 13E-3 and the fees
of Stifel Nicolaus & Company, Inc..
(b) Nothing contained in this Section 11.2 shall constitute or
shall be deemed to constitute liquidated damages for the willful and knowing
breach by a Party of the terms of this Agreement or otherwise limit the rights
of the nonbreaching Party.
11.3 ENTIRE AGREEMENT. Except as otherwise expressly provided herein,
this Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement between the Parties with respect to the
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereto, written or oral, other than the
confidentiality agreement between the Parties, which shall remain in effect.
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<PAGE> 27
Except as contemplated by Articles 3 and 4 of this Agreement and Section 8.5 of
this Agreement, nothing in this Agreement expressed or implied, is intended to
confer upon any Person, other than the Parties or their respective successors,
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
11.4 AMENDMENTS. To the extent permitted by Law, this Agreement may be
amended by a subsequent writing signed by each of the Parties upon the approval
of the Boards of Directors of each of the Parties.
11.5 WAIVERS.
(a) Prior to or at the Effective Time, UPBNA, acting through its
Board of Directors, chief executive officer, vice chairman, or other authorized
officer, shall have the right to waive any Default in the performance of any
term of this Agreement by CFH, to waive or extend the time for the compliance or
fulfillment by CFH of any and all of its obligations under this Agreement, and
to waive any or all of the conditions precedent to the obligations of UPBNA
under this Agreement, except any condition which, if not satisfied, would result
in the violation of any Law. No such waiver shall be effective unless in writing
signed by a duly authorized officer of UPBNA except that any unfulfilled
conditions shall be deemed to have been waived at the Effective Time.
(b) Prior to or at the Effective Time, CFH, acting through its
Board of Directors, chief executive officer, or other authorized officer, shall
have the right to waive any Default in the performance of any term of this
Agreement by UPBNA, to waive or extend the time for the compliance or
fulfillment by UPBNA of any and all of its obligations under this Agreement, and
to waive any or all of the conditions precedent to the obligations of CFH under
this Agreement, except any condition which, if not satisfied, would result in
the violation of any Law. No such waiver shall be effective unless in writing
signed by a duly authorized officer of CFH except that any unfulfilled
conditions shall be deemed to have been waived at the Effective Time.
(c) The failure of any Party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
Party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
11.6 ASSIGNMENT. Except as expressly contemplated hereby, neither this
Agreement nor any of the rights, interests, or obligations hereunder shall be
assigned by any Party hereto (whether by operation of Law or otherwise) without
the prior written consent of the other Party. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of, and be enforceable
by the Parties and their respective successors and assigns.
11.7 NOTICES. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered by hand,
by facsimile transmission, by registered or certified mail, postage pre-paid, or
by courier or overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered:
CFH: CAPITAL FACTORS HOLDING, INC.
Suite 500
East Palmetto Park Road
Boca Raton, Florida 33432
Telecopy Number: (561) 347-6207
Attention: Dennis McDermott
Executive Vice President and Chief
Financial Officer
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<PAGE> 28
Copy to Counsel: MILBANK, TWEED, HADLEY & MCCLOY
1 Chase Manhattan Plaza
New York, New York 10005-1401
Telecopy Number: (212) 530-5219
Attention: John T. O'Connor
UPBNA: UNION PLANTERS BANK, NATIONAL ASSOCIATION
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Telecopy Number: (901) 580-2939
Attention: Jackson W. Moore
President and Chief Operating Officer
Copy to Counsel: UNION PLANTERS CORPORATION
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Telecopy Number: (901) 580-2939
Attention: E. James House, Jr.
Manager, Legal Division
11.8 GOVERNING LAW. Except to the extent the laws of the State of
Florida apply to the Merger, this Agreement shall be governed by and construed
in accordance with the Laws of the State of Tennessee, without regard to any
applicable conflicts of Laws.
11.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11.10 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
11.12 INTERPRETATIONS. Neither this Agreement nor any uncertainty or
ambiguity herein shall be construed or resolved against any Party, whether under
any rule of construction or otherwise. No Party to this Agreement shall be
considered the draftsman. The Parties acknowledge and agree that this Agreement
has been reviewed, negotiated, and accepted by all Parties and their attorneys
and shall be construed and interpreted according to the ordinary meaning of the
words used so as fairly to accomplish the purposes and intentions of the
Parties.
11.13 ENFORCEMENT OF AGREEMENT. The Parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
11.14 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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<PAGE> 29
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to
be executed on its behalf and its corporate seal to be hereunto affixed and
attested by officers thereunto as of the day and year first above written.
ATTEST: CAPITAL FACTORS HOLDING, INC.
By: /s/ Dennis A. McDermott By: /s/ John W. Kiefer
----------------------------------- -----------------------------
Dennis A. McDermott John W. Kiefer
Executive Vice President and President and Chief Executive
Financial Officer Officer
[CORPORATE SEAL]
UNION PLANTERS BANK, NATIONAL
ASSOCIATION
By: /s/ E. James House, Jr. By: /s/ Jackson W. Moore
----------------------------------- -----------------------------
E. James House, Jr. Jackson W. Moore
Secretary President and Chief Operating
Officer
[CORPORATE SEAL]
16
