<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ____)*
J.C. NICHOLS COMPANY
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(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE PER SHARE
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(Title of Class of Securities)
653777102
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(CUSIP Number)
INTRUST BANK, N.A.
105 NORTH MAIN STREET
WICHITA, KANSAS 67201
ATTENTION: PHILLIP J. OWINGS, SENIOR VICE PRESIDENT
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
OCTOBER 17, 1997
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(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-1(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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SCHEDULE 13D
CUSIP No. 653777102 Page 2
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
INTRUST BANK, N.A., AS TRUSTEE OF THE J.C. NICHOLS COMPANY
EMPLOYEE STOCK OWNERSHIP TRUST
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
NOT APPLICABLE
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
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7 SOLE VOTING POWER
NUMBER OF
1,390,233
SHARES
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BENEFICIALLY
8 SHARED VOTING POWER
OWNED BY
0
EACH
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REPORTING
9 SOLE DISPOSITIVE POWER
PERSON
(SEE ITEM 5(B), BELOW)
WITH
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10 SHARED DISPOSITIVE POWER
(SEE ITEM 5(B), BELOW)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,390,233
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.7%
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14 TYPE OF REPORTING PERSON (See Instructions)
BK, CO, EP
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<PAGE>
SCHEDULE 13D
CUSIP No. 653777102 Page 3
ITEM 1. SECURITY AND ISSUER
---------------------------
This Schedule 13D relates to the common stock, par value $0.01 per share,
of J. C. Nichols Company, a Missouri corporation (the "Company"). The principal
executive offices of the Company are located at 310 Ward Parkway, Kansas City,
Missouri 64112.
ITEM 2. IDENTITY AND BACKGROUND
-------------------------------
The entity reporting on this Schedule 13D is INTRUST Bank, N.A.
("Trustee"), solely in its capacity as trustee of the J. C. Nichols Company
Employee Stock Ownership Trust (the "ESOT") and the J. C. Nichols Company
Employee Stock Ownership Plan (the "Plan"). Trustee is a corporation organized
under the laws of the state of Kansas and engaged principally in the business of
banking. The principal business address of Trustee is 105 North Main Street,
Wichita, Kansas 67201.
For information required by General Instruction C to Schedule 13D with
respect to (a) the executive officers and directors of Trustee, (b) the person
controlling Trustee, and (c) the executive officers and directors of the person
ultimately in control of Trustee, reference is made to Schedule I annexed hereto
and incorporated herein by reference.
During the last five years, Trustee has not been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to 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.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
---------------------------------------------------------
This Schedule 13D is being filed by Trustee as a result of the matters
described in "Item 4 Purpose of Transaction," below and does not relate to the
purchase of any shares of common stock of the Company. Nevertheless, the
following information is provided with respect to a prior acquisition by the
ESOT of common stock of the Company not previously reported pursuant to
Regulation 13D-G.
On August 26, 1997, 620,586 shares of the Company's common stock (the
"Shares") were issued by the Company to the ESOT. The acquisition occurred
pursuant to the terms of that certain settlement agreement dated June 30, 1995,
with respect to Medina v. McCarthy, Case No. 95-0075-CV-W-1, United States
------------------
District Court, Western District of Missouri (the "Court"), as approved by order
of the Court on October 4, 1995, and by its subsequent order dated October 12,
1995 (the "Settlement Agreement"). The Settlement Agreement called for the
issuance of 8,500 shares of the Company's common stock to the ESOT, but, as a
result of an 80-for-1 split of the Company's common stock, effective May 29,
1996, the number of shares to be issued to the ESOT was increased to 680,000.
On August 1, 1997, the Internal Revenue Service (the "IRS") executed a Closing
Agreement (the "Closing Agreement") in response to a request for a private
letter ruling filed with the IRS by the Company on October 31, 1995. In
accordance with the Closing Agreement, 620,586 shares (i.e., the Shares) out of
the 680,000 shares contemplated by the settlement were actually issued to the
ESOT. The remaining 59,413 shares are subject to a litigated
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SCHEDULE 13D
CUSIP No. 653777102 Page 4
dispute, Case No. 97-1205-CV-W-3, United States District Court, Western
District of Missouri, involving the status of certain Plan participants under
Section 1042 of the Internal Revenue Code. On September 2, 1997, the Company
filed a request with the Court that asks, in part, for permission to interplead
the "Section 1042 Shares," consisting of the remaining 59,413 shares of the
Company's common stock to be issued pursuant to the Settlement Agreement (the
disputed number of shares was actually 59,413.9771, but fractional shares are
not authorized and the fractional share was eliminated) pending resolution of
whether the disputed shares should be transferred to the ESOT or directly to
specific participants in the Plan pursuant to the Closing Agreement.
ITEM 4. PURPOSE OF TRANSACTION
------------------------------
As discussed above in "Item 3. Source and Amount of Funds or Other
Consideration," this Schedule 13D is not being filed as a result of the
acquisition of the Shares by the ESOT. The ESOT's acquisition of the Shares was
mandated by the Settlement Agreement and neither the ESOT nor Trustee had any
control over the timing or purpose of the acquisition of the Shares. As
discussed below, though, the Shares, as well as other shares of the Company's
common stock held by the ESOT, are subject to possible sale pursuant to the
terms of the Stock Purchase Agreement (as defined and discussed below).
This Schedule 13D is instead being filed as a result of plans and events
related to a stock purchase agreement effective September 24, 1997 (the "Stock
Purchase Agreement") by and between the ESOT and Bosfield, L.L.C., an Indiana
limited liability company ("Bosfield"). The Stock Purchase Agreement marks the
culmination of a series of unsolicited offers for the purchase of shares of
common stock held by the ESOT.
Since assuming its duties as trustee of the ESOT, Trustee has received a
number of unsolicited offers to purchase shares of the Company's common stock
held by the ESOT. Among such offers was an unsolicited offer from Maefield
Development Corporation ("Maefield") in May 1997. During the course of
receiving such unsolicited offers and entering into negotiations with respect to
the sale of shares held by the ESOT, Trustee requested advice from the Board of
Directors of the Company pursuant to Section 6.12 of the ESOT regarding these
offers. With respect to offers from Maefield, the Board of Directors of the
Company recommended that Trustee obtain an extension of time to consider the
value of the offer.
During the time when Trustee was receiving and discussing unsolicited
offers for the purchase of shares held by the ESOT, Trustee learned of
developments that could adversely impact the Plan participants. The Plan
contains a "put provision" whereby the Company is obligated to purchase shares
from a given Plan participant when shares are distributed from the ESOT to the
Plan participant. Based on information received in conversations with the
Company, Trustee believes that the Board of Directors of the Company has taken
action to amend the Plan to remove the "put provision" upon the successful
listing of the Company's shares on The Nasdaq National Market. This action may
result in a loss of liquidity, and thus value, in shares of the Company's common
stock distributed to Plan participants. After a series of discussions with
members of the Board of Directors of the Company regarding potential
alternatives for achieving liquidity for Plan participants, including purchase
of some or all of the ESOT's shares by the Company, Trustee has determined that
it is in the best interests of the Plan participants to sell shares held in the
ESOT to achieve liquidity.
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SCHEDULE 13D
CUSIP No. 653777102 Page 5
During the course of negotiations regarding the unsolicited offers to
purchase the shares held by the ESOT, the principal of Maefield, Mr. Mark
Siffin, along with Mr. James Rappaport, formed Bosfield and substituted Bosfield
as the offeror for the shares of the Company's common stock held by the ESOT.
The Trustee's negotiations with Bosfield resulted in Bosfield's agreement to
purchase from the ESOT the 1,390,233 shares of the Company's common stock held
by the ESOT at a price of $59.00 per share pursuant to the Stock Purchase
Agreement. The Stock Purchase Agreement states that it is to be consummated
within 90 days of its effective date, upon satisfaction of its stated
conditions.
One of the conditions stated in the Stock Purchase Agreement is that the
Board of Directors of the Company shall have approved the Stock Purchase
Agreement. Trustee has approached management and the Board of Directors of the
Company regarding approval of this transaction. Trustee understands that
Bosfield has also approached the Board of the Directors of the Company regarding
approval of the Stock Purchase Agreement. The Board of Directors of the Company
has advised Trustee that it is continuing to evaluate the Stock Purchase
Agreement.
Nevertheless, during the week of October 13, 1997, Trustee became aware of
facts and information that have led it to believe that the Board of Directors of
the Company may not approve the Stock Purchase Agreement. Trustee has
determined that it is in the best interests of the Plan participants to proceed
with the transactions contemplated in the Stock Purchase Agreement.
Accordingly, in light of indications that approval may not be forthcoming from
the current Board of Directors of the Company, Trustee plans to take those
actions that it may deem necessary to obtain such approval of the Stock
Purchase Agreement and achieve liquidity in the ESOT's assets on behalf of Plan
participants. Trustee's current plan for achieving this objective may include
further discussions with the Board of Directors of the Company and the
possibility of calling a meeting of the shareholders of the Company for the
purpose of proposing actions to be voted upon by the shareholders of the Company
at such meeting. The proposed actions at any such shareholder meeting may
include removal of cumulative voting provisions from the Company's bylaws,
removal of various members of the Board of Directors of the Company, and other
actions as Trustee deems necessary to propose in order to accomplish its
objective as described above.
In light of provisions contained in the documents under which the ESOT is
operated, the Stock Purchase Agreement contains a provision that reflects the
desire of the ESOT to acquire a minimum of 700,000 additional shares of the
Company's common stock (the "Additional Shares"). The Stock Purchase Agreement
contemplates that, prior to consummation of the Stock Purchase Agreement,
Bosfield will provide the ESOT with reasonable assistance, including an
interest-bearing loan, designed to enable the ESOT to acquire the Additional
Shares from existing shareholders.
The summary of the provisions of the Stock Purchase Agreement under this
Item 4 do not purport to be complete. Reference is made to the provisions of,
and such summary is qualified in its entirety by reference to, the Stock
Purchase Agreement, a copy of which is attached hereto as Exhibit 4 and
incorporated herein by reference.
<PAGE>
SCHEDULE 13D
CUSIP No. 653777102 Page 6
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
--------------------------------------------
(a) As reported in the Company's Report on Form 10-Q for the quarter ended
June 30, 1997, 3,849,358 shares of the Company's common stock were issued and
outstanding on July 31, 1997. After giving effect to the Company's issuance of
an additional 680,000 shares on August 26, 1997 (including the 620,586 shares
received by the ESOT, as described in "Item 4. Purpose of Transaction," above),
the total number of issued and outstanding shares of the Company's common stock
is at least 4,529,358. Trustee, solely as trustee of the ESOT, presently has
beneficial ownership of 1,390,233 shares of the Company's common stock, or
approximately 30.7% of the issued and outstanding shares of the common stock of
the Company.
(b) Trustee, as trustee of the ESOT, has the sole power to vote 1,390,233
shares of the Company's common stock. Trustee has the power to dispose of such
shares subject to and controlled by Sections 6.2 and 6.12 of the Trust
Agreement, by other applicable provisions of the Trust and Plan documents, and
by applicable provisions of the Employee Retirement Income Security Act, as
amended. In this regard, Trustee is required to obtain an advisory opinion from
the Board of Directors of the Company prior to selling shares of common stock of
the Company pursuant to an unsolicited offer.
(c) The sole transaction in the common stock of the Company effected by
Trustee or the ESOT during the past 60 days is the acquisition of the Shares
(see "Item 3. Source and Amount of Funds or Other Consideration" above).
(d) The shares of common stock of the Company held by the ESOT are held for
the benefit of the participants in the Plan.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
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RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
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The ESOT has entered into the Stock Purchase Agreement. Information
regarding the terms of the Stock Purchase Agreement described in Item 4. above
and the full text of the Stock Purchase Agreement attached hereto as Exhibit 4
are incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
-----------------------------------------
The following Exhibit 1 is incorporated herein by reference to Exhibit 99.1
to the J. C. Nichols Company Registration Statement on Form 10, filed with the
Commission on September 30, 1996, as subsequently amended (the "Form 10"). The
following Exhibit 2 is incorporated herein by reference to Exhibits 10.1(a),
10.1(b), and 10.1(c) to the Form 10. The following Exhibit 3 is incorporated
herein by reference to Exhibits 10.2(a) and 10.2(b) to the Form 10. Exhibit 4
is attached hereto.
Exhibit 1. Settlement Agreement and Mutual Releases dated June 30, 1995.
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SCHEDULE 13D
CUSIP No. 653777102 Page 7
Exhibit 2. J.C. Nichols Company Employee Stock Ownership Plan, as amended.
Exhibit 3. J.C. Nichols Employee Stock Ownership Trust, as amended.
Exhibit 4. Stock Purchase Agreement dated September 24, 1997, by and between
the J. C. Nichols Company Employee Stock Ownership Trust and
Bosfield, L.L.C.
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.
Dated: October 24, 1997
--
INTRUST Bank, N.A., as Trustee of the J. C. Nichols
Company Employee Stock Ownership Trust
By: /s/ Phillip J. Owings
--------------------------------------------
Phillip J. Owings, Senior Vice President
<PAGE>
SCHEDULE I
Information with Respect to
Executive Officers and Directors of
INTRUST Bank, N.A. and INTRUST Financial Corp.
----------------------------------------------
The following sets forth information required by General Instruction C to
Schedule 13D with respect to (a) the executive officers and directors of INTRUST
Bank, N.A. ("INTRUST Bank"), (b) the person controlling INTRUST Bank, and (c)
the executive officers and directors of the person ultimately in control of
INTRUST Bank.
The person ultimately in control of INTRUST Bank is INTRUST Financial
Corp., a Kansas corporation ("INTRUST Financial"). The principal business
address of INTRUST Financial is 105 North Main Street, Wichita, Kansas 67201.
The principal business of INTRUST Financial is operating as a bank holding
company. During the last five years, INTRUST Financial has not been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors)
or been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to 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.
The name of each of the executive officers and directors of INTRUST Bank
and INTRUST Financial are listed below. Unless otherwise specified, each
individual identified below serves as a director and/or officer of both INTRUST
Bank and INTRUST Financial, the principal employer of each such individual is
INTRUST Bank or INTRUST Financial, the business address of each such individual
is 105 North Main Street, Wichita, Kansas 67201, and each such individual is a
citizen of the United States. To the knowledge of INTRUST Bank, during the last
five years, no individual identified below has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors), and no such
person was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities law or finding any
violation with respect to such laws. In addition, to the knowledge of INTRUST
Bank, none of the individuals identified below has any interest in the
securities of J.C. Nichols Company (the "Company") or any contracts,
arrangements, understandings or relationships with respect to the securities of
the Company.
1. RONALD L. BALDWIN, director and Vice Chairman of INTRUST Bank.
2. C. ROBERT BUFORD, director; principal occupation and business address:
President of Zenith Drilling Corp., an oil and gas drilling and exploration
firm with an office at 1861 North Rock Road, Suite 200, Wichita, Kansas
67278.
3. FRANK L. CARNEY, director; principal occupation and business address:
President and Manager of P.J. Wichita, L.L.C., a development stage
company with an office at 2611 Wilderness, Wichita, Kansas 67226.
<PAGE>
4. RICHARD G. CHANCE, director; principal occupation and business address:
President and Chief Executive Officer of Chance Industries, Inc., a
producer of amusement rides and manufacturer of transit coaches, trams, and
replica trolleys with an office at 4219 Irving Street, Wichita, Kansas
67277.
5. CHARLES Q. CHANDLER III, director, Chairman of the Board of INTRUST
Financial, and Chief Executive Officer of INTRUST Financial.
6. CHARLES Q. CHANDLER IV, director, President of INTRUST Financial, President
of INTRUST Bank, Chairman of the Board of INTRUST Bank, and Chief Executive
Officer of INTRUST Bank.
7. GEORGE T. CHANDLER, director; principal occupation and business address:
Chairman of the Board of First National Bank, a banking organization with
an office at 223 South Main, Pratt, Kansas 67124.
8. STEVEN CLARK, director; principal occupation and business address:
President of Clark Investment Group, an investment company with an office
at 1223 North Rock Road, Wichita, Kansas 77206.
9. ROBERT L. DARMON, director; principal occupation: managing personal
investments.
10. CHARLES W. DIEKER, director; principal occupation: managing personal
investments.
11. W.J. EASTON Jr., director; principal occupation and business address:
President, Chairman of the Board, and Chief Operating Officer of The
Easton Manufacturing Co. Inc., an auto parts manufacturing company with an
office at 1023 South Santa Fe, Wichita, Kansas 67202.
12. MARTIN K. EBY Jr., director; principal occupation and business address:
President and Chairman of the Board of Martin K. Eby Construction
Corporation, a construction company with an office at 610 North Main
Street, Wichita, Kansas 67203.
13. THOMAS KITCH, director; principal occupation and business address: member
of Fleeson, Gooing & Kitch, a law firm located at 125 North Market Street,
Suite 1600, Wichita, Kansas 67201.
14. ERIC T. KNORR, director; principal occupation and business address:
Chairman Emeritus, Dulaney, Johnston & Priest Insurance Agency, an
insurance agency located at 301 North Main, Suite 900, Wichita, Kansas
67202.
Page 2
<PAGE>
15. CHARLES G. KOCH, director; principal occupation and business address:
Chairman of the Board and Chief Executive Officer of Koch Industries Inc.,
an integrated energy company with an office at 4111 East 37th Street North,
Wichita, Kansas 67220.
16. RICHARD KERSCHEN, director; principal occupation and business address:
President and Chairman of the Board, The Law Co., Inc., a general
contracting company with an office at 345 Riverview, Wichita, Kansas
67201.
17. J.V. LENTELL, director and Vice Chairman of INTRUST Bank.
18. WILLIAM B. MOORE, director; principal occupation and business address:
President of KGE, an operating company that distributes electricity and
natural gas with an office in Wichita, KS 67202-3037.
19. PAUL A. SEYMOUR Jr., director; principal occupation: managing personal
investments.
20. DONALD C. SLAWSON, director; principal occupation and business address:
Chairman of the Board and President of Slawson Companies, Inc., a group
of companies involved in the acquisition of oil and gas properties,
exploration and production of oil and gas, purchasing and reselling of
crude oil and natural gas, and real estate activities with an office at 104
S. Broadway, Suite 200, Wichita, Kansas 67202.
21. JOHN T. STEWART III, director; principal occupation and business address:
Chairman of the Board and Director of First National Bank, a banking
organization with an office at 120 North First Street, Medford, OK 73759-
1202.
Page 3
<PAGE>
EXHIBIT 4.
STOCK PURCHASE AGREEMENT
BOSFIELD, L.L.C., an Indiana limited liability company ("Purchaser"), and
THE EMPLOYEE STOCK OWNERSHIP TRUST OF THE J.C. NICHOLS COMPANY ("Seller") agree
as follows:
1. BASIS OF TRANSACTION. Prior to July 15, 1997, Purchaser discussed with
Seller the potential sale by Seller to Purchaser of the Sale Shares (as defined
in section 2 hereof). Seller requested that Purchaser make an offer or bid for
the Sale Shares. Pursuant to such request, an offer or bid in the form of a
"Purchase Agreement" dated July 15, 1997 was made by Purchaser. Such offer
contained an expiration date of August 14, 1997 which was subsequently extended
at the request of the Seller to September 15, 1997 and then to September 30,
1997. Seller requested a different offer or bid from Purchaser and Purchaser
made the bid or offer reflected in this Agreement. The trustee of Seller, after
determining that the sale of the Sale Shares to Purchaser in accordance with the
terms and provisions of this Agreement would be in the best interests of the
participants and beneficiaries of Seller, accepted Purchaser's bid, all of which
is reflected in this Agreement.
2. PURCHASE AND SALE. Seller agrees to sell to Purchaser, and Purchaser
agrees to buy from Seller, 1,390,233 shares of the common stock, subject to
adjustment to give effect to any distribution of such shares to participants of
Seller that Seller is required to make under Seller's trust instrument or other
documents under which Seller operates prior to Closing (as defined in Section 4
hereof) (the "Sale Shares"), of J.C. Nichols Company (the "Issuer") on the terms
and subject to the conditions in this Agreement, in exchange for payment by
Purchaser to Seller of the Purchase Price (as defined in Section 3 hereof).
3. PURCHASE PRICE. The purchase price for the Sale Shares is $59.00 per
Sale Share, for an aggregate purchase price (the "Purchase Price") of
$82,023,747 (subject to adjustment to give effect to an adjustment as set forth
in Section 2 hereof). The Purchase Price shall be paid by Purchaser to Seller
in immediately available funds at the Closing (as defined in Section 4 hereof).
4. CLOSING.
(a) The closing (the "Closing") of the sale and purchase of the Sale Shares
shall take place on the date that is one business day following the satisfaction
or waiver of the conditions contained in Sections 8 and 9 hereof and at such
location as the parties may mutually agree in writing, or at such other time
that the parties may mutually agree in writing; provided, however, if the
-------- -------
Closing shall not have occurred within 90 days of the date hereof, this
Agreement shall terminate on such date, unless such date is extended by mutual
written agreement of the parties hereto. The date of the Closing is herein
referred to as the "Closing Date."
<PAGE>
(b) At the Closing:
(i) Seller shall deliver to Purchaser the certificate or certificates
for the Sale Shares duly endorsed for transfer to Purchase, with
all requisite stock transfer tax stamps, if any, affixed to each
such certificate, free of any lien, claim or restriction of any
kind and transferring good, valid title to the Sale Shares to
Purchaser, except as specified herein.
(ii) Purchaser shall deliver to Seller the Purchase Price in accordance
with Section 3 hereof.
(iii) Each of the parties hereto will cooperate with the other and
execute and deliver to the other parties hereto such other
instruments and documents and take such other actions as may be
reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence and confirm the intended purposes
of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as follows; provided, however, all of the following
-------- -------
representations and warranties of Seller are qualified by and subject to (i) the
terms and provisions of Seller's trust instrument and more particularly Section
6.12 thereof, (ii) the effects of that certain rights agreement governing the
Issuer's "poison pill," and (iii) the effects of any state "anti-takeover" laws
applicable to the transactions contemplated hereby:
(a) Seller has the power, authority and legal right to execute, deliver and
perform this Agreement. This Agreement has been, and the other agreements,
documents and instruments delivered by Seller in accordance with the provisions
hereof (the "Seller's Documents") have been, duly executed and delivered on
behalf of Seller, and each of this Agreement and the Seller's Documents
constitutes the legal, valid and binding obligations of Seller, enforceable
against Seller in accordance with its terms.
(b) The execution, delivery and performance of this Agreement by Seller
does not and will not violate, conflict with or result in the breach of any
term, condition or provision of, or require the consent of any person under, (i)
the trust instrument and other documents pursuant to which Seller exists and
operates, (ii) any existing law, ordinance, or governmental rule or regulation
to which Seller is subject, (iii) any judgment, order, writ, injunction, decree
or award of any court, arbitrator or governmental or regulatory official, body
or authority which is applicable to Seller, or (iv) any mortgage, indenture,
agreement, contract, commitment, lease, plan, consent, or other instrument,
document or understanding, oral or written, to which Seller is a party, by which
Seller may be bound or affected, or give any party with rights thereunder the
right to terminate, modify, accelerate or otherwise change the existing rights
or obligations of Seller thereunder. Except as aforesaid and as specifically
referred to in this Agreement, no authorization, approval, consent of, and no
registration or filing with, any governmental or
-2-
<PAGE>
regulatory official, body or authority is required in connection with the
execution, delivery or performance of this Agreement by Seller, other than
pursuant to the HSR Act (as defined in Section 8(e) hereof).
(c) No litigation or claim, including any arbitration, investigation or
other proceeding of or before any court, arbitrator or governmental or
regulatory official, body or authority is pending, asserted or threatened
against Seller which relates to the transactions contemplated by this Agreement.
Seller is not a party to or subject to the provisions of any judgment, order,
writ, injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which may adversely affect the Issuer or
its assets or the transactions contemplated hereby.
(d) Seller has good title to the Sale Shares, free of any lien, claim,
encumbrance or restriction, except for restrictions imposed by applicable
federal and state securities laws, and Seller is entitled to sell the Sale
Shares to Purchaser as provided in this Agreement. No other person has any
right or option to acquire any of the Sale Shares owned by Seller, other than
rights of participants of Seller to receive certain distributions of Sale Shares
under Seller's trust instruments or other documents under which Seller operates.
(e) No agent, broker, investment banker or other person or firm acting on
behalf of or under the authority of Seller is or will be entitled to any
broker's or finder's fee or any other commission or similar fee, directly or
indirectly, in connection with the transactions contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
(a) Purchaser is a limited liability company, duly organized, and validly
existing and in good standing under the laws of the State of Indiana. Purchaser
has the power, authority and legal right to execute, deliver and perform this
Agreement. This Agreement has been, and the other agreements, documents and
instruments delivered by Purchaser in accordance with the provisions hereof (the
"Purchaser's Documents") have been, duly executed and delivered on behalf of
Purchaser, and each of this Agreement and the Purchaser's Documents constitutes
the legal, valid and binding obligations of Purchaser, enforceable against
Purchaser in accordance with its terms.
(b) The execution, delivery and performance of this Agreement by Purchaser
does not and will not violate, conflict with or result in the breach of any
term, condition or provision of, or require the consent of any person under, (i)
the documents pursuant to which Purchaser exists and operates, (ii) any existing
law, ordinance, or governmental rule or regulation to which Purchaser is
subject, (iii) any judgment, order, writ, injunction, decree or award of any
court, arbitrator or governmental or regulatory official, body or authority
which is applicable to Purchaser, or (iv) any mortgage, indenture, agreement,
contract, commitment, lease, plan,
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consent, or other instrument, document or understanding, oral or written, to
which Purchaser is a party, by which Purchaser may be bound or affected, or give
any party with rights thereunder the right to terminate, modify, accelerate or
otherwise change the existing rights or obligations of Purchaser thereunder.
Except as aforesaid and as specifically referred to in this Agreement, no
authorization, approval, consent of, and no registration or filing with, any
governmental or regulatory official, body or authority is required in connection
with the execution, delivery or performance of this Agreement by Purchaser
(other than pursuant to the HSR Act).
(c) No litigation or claim, including any arbitration investigation or
other proceeding of or before any court, arbitrator or governmental or
regulatory official, body or authority is pending, asserted or threatened
against Purchaser which relates to the transactions contemplated by this
Agreement.
(d) No agent, broker, investment banker or other person or firm acting on
behalf of or under the authority of Purchase is or will be entitled to any
broker's or finder's fee or any other commission or similar fee, directly or
indirectly, in connection with the transactions contemplated by this Agreement.
(e) In connection with the acquisition of the Sale Shares, Purchaser
acknowledges and agrees that (i) the sale of the Sale Shares under this
Agreement has not been registered under the Securities Act of 1933, as amended
(the "1933 Act"), or the securities laws of any state; (ii) the Sale Shares will
be "restricted securities" as defined by Rule 144 promulgated pursuant to the
1933 Act and that a new holding period will begin for purposes of Rule 144;
(iii) the Sale Shares must be held indefinitely unless a subsequent disposition
thereof is registered under the 1933 Act and applicable state securities laws,
or is exempt from such registration; and (iv) the Sale Shares will bear a
restrictive legend to that effect. Purchaser further represents that (i) the
Sale Shares are being acquired for Purchaser's own account, for investment and
without any present view toward distribution thereof to any other person or
entity; (ii) Purchaser is an "accredited investor" as defined in Rule 501(a) of
Regulation D promulgated pursuant to the 1933 Act; (iii) Purchaser will not sell
or otherwise dispose of the Sale Shares except in compliance with the
registration requirements or exemption provisions under the 1933 Act and
applicable state securities laws, the rules and regulations thereunder, and as
otherwise set forth by the Securities and Exchange Commission or any comparable
state authority; (iv) Purchaser has knowledge and experience in financial and
business matters and is capable of evaluating the risks and merits of an
investment in the Sale Shares; (v) Purchaser has investigated and is familiar
with the affairs, financial condition and prospects of the Issuer, and has been
given sufficient access to and has acquired sufficient information about the
Issuer to reach an informed and knowledgeable decision to acquire the Sale
Shares; and (vi) Purchaser is able to bear the economic risks of such an
investment.
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7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS; REPRESENTATION
DISCLAIMER.
(a) All representations, warranties, covenants and agreements made by the
parties in this Agreement shall survive the Closing. Notwithstanding any
investigation or audit conducted before or after the Closing or the decision of
any party to complete the Closing, each party shall be entitled to rely upon the
representations and warranties set forth herein.
(b) Purchaser shall not be deemed to have made to Seller any representation
or warranty other than as expressly made by Purchaser in this Agreement. Seller
shall not be deemed to have made to Purchaser any representation or warranty
other than as expressly made by Seller in this Agreement. Without limiting the
generality of the foregoing, and notwithstanding any otherwise express
representations and warranties made by Seller in Section 5 hereof, Seller makes
no representation or warranty to Purchaser with respect to:
(i) any projections, estimates or budgets heretofore delivered to or
made available to Purchaser with respect to future revenues,
expenses or expenditures or future results of operations of the
Issuer and/or its subsidiaries; or
(ii) except as expressly covered by a representation and warranty
contained in Section 5 hereof, any other information or documents
(financial or otherwise) made available to Purchaser or Purchaser's
counsel, accountants or advisers with respect to the Issuer.
8. CONDITIONS TO CLOSING BY SELLER. The obligations of Seller under this
Agreement are subject to the fulfillment of the following conditions precedent
prior to the date and time of Closing; provided, however, that Seller may
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conditionally or unconditionally waive one or more of these conditions:
(a) Each of the representations and warranties of Purchaser contained in
this Agreement shall be true as of the date of the Closing.
(b) Purchaser shall have complied with, fulfilled and performed each of the
covenants, terms and conditions to be complied with, fulfilled or performed by
Purchaser under this Agreement.
(c) All of the documents and information furnished by Purchaser to Seller
as provided in this Agreement shall be in the form and substance satisfactory to
Seller.
(d) No order, decree or ruling of any governmental authority or court shall
have been entered, and no governmental or other action, suit, claim,
investigation or proceeding shall be pending or threatened, challenging the
legality, validity or propriety of, or otherwise relating to, the transactions
contemplated by this Agreement.
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(e) Either (i) Seller shall have determined to its reasonable satisfaction
that no filing is required with respect to the transactions contemplated by this
Agreement under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (ii) filings shall have been made under the HSR Act and
all applicable waiting periods under the HSR Act shall have expired or been the
subject of early termination, or (iii) if filings are required, the failure of
filings to be made shall have no adverse effect on Seller.
(f) Within ten (10) days after the date of this Agreement, Purchaser shall
have demonstrated to Seller's reasonable satisfaction that Purchaser has the
financial capability to perform its obligations under this Agreement.
(g) The Board of Directors of the Issuer shall have approved the
transactions contemplated under this Agreement and approved any plan and/or
trust amendments necessary to implement such transaction without affecting
qualification of Seller and the related plan under Sections 401 and 501 of the
Internal Revenue Code.
(h) Seller shall have determined to its satisfaction that the contemplated
acquisition of the Sale Shares by Purchaser will not result in Seller having any
liability under Section 16(b) of the Securities Exchange Act of 1934.
9. CONDITIONS TO CLOSING BY PURCHASER. The obligations of Purchaser
under this Agreement are subject to the fulfillment of the following conditions
precedent prior to the date and time of Closing; provided, however, that
-------- -------
Purchaser may conditionally or unconditionally waive one or more of these
conditions:
(a) Each of the representations and warranties of Seller contained in this
Agreement shall be true as of the date of the Closing.
(b) Seller shall have complied with, fulfilled and performed each of the
covenants, terms and conditions to be complied with, fulfilled or performed by
Seller under this Agreement.
(c) All of the documents and information furnished by Seller to Purchaser
as provided in this Agreement shall be in the form and substance satisfactory to
Purchaser.
(d) No order, decree or ruling of any governmental authority or court shall
have been entered, and no governmental or other action, suit, claim,
investigation or proceeding shall be pending or threatened, challenging the
legality, validity or propriety of, or otherwise relating to, the transactions
contemplated by this Agreement.
(e) Either (i) Purchaser shall have determined to its reasonable
satisfaction that no filing is required with respect to the transactions
contemplated by this Agreement under the HSR Act or (ii) filings shall have been
made under the HSR Act and all applicable waiting periods under the HSR Act
shall have expired or been the subject of early termination.
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<PAGE>
(f) Purchaser shall have satisfied itself in its reasonable discretion that
the rights under the Issuer's "poison pill" rights agreement will not be
exercisable, triggered or otherwise effective as a result of the transactions
contemplated by this Agreement.
10. CONFIDENTIALITY. The parties agree that (i) no public release or
announcement concerning the transactions contemplated hereby shall be issued by
any party and (ii) neither party will disclose the existence of this Agreement
or the intention of such party to consummate the transactions contemplated
hereby to any other party prior to the Closing, without in either case the prior
written consent of the other party, except as required by law or applicable
regulations or Seller's trust instrument.
11. TERMINATION RIGHT. This Agreement may be terminated at any time prior
to Closing by Seller if the trustee of Seller becomes aware of any facts which,
due to the fiduciary obligations of trustee of Seller, the trustee of Seller
determines that the transactions contemplated hereby are not in the best
interests of Seller's participants; provided, however, that (i) if the reason
-----------------
for any such determination by the trustee of Seller is the receipt by Seller of
a bona fide higher offer for sale of the Sale Shares, Seller shall give
Purchaser at least three (3) business days' prior notice of its intention to
terminate this Agreement pursuant to this Section 11 (along with a description
of all relevant terms and conditions of such higher offer), during which period
Purchaser shall have the opportunity (but not the obligation) to propose
amendments or modifications to the terms of this Agreement and (ii) if this
Agreement is terminated pursuant to this Section 11, Seller shall pay to
Purchaser a fee equal to $2,000,000.00 in cash within 90 days of such
termination.
12. MISCELLANEOUS.
(a) Seller shall pay all documentary and other transfer taxes, if any, due
as a result of the sale of the Sale Shares in accordance herewith. Except as
set forth in this Section 12(a), each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby. This Section 12(a) shall
survive any termination of this Agreement.
(b) This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby. It shall not be
amended or modified except by written instrument duly executed by each of the
parties hereto. Any and all previous agreements and understandings between or
among the parties regarding the subject matter hereof, whether written or oral,
are superseded by this Agreement.
(c) This Agreement may not be assigned prior to the Closing by any party
hereto without the prior written consent of the other parties. Subject to the
foregoing, all of the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
assigns of Seller and Purchaser.
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(d) Any term or provision of this Agreement may be waived at any time by
the party entitled to the benefit thereof by a written instrument duly executed
by such party.
(e) This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of Indiana.
(f) The representations, warranties, covenants and agreements contained in
this Agreement are for the sole benefit of the parties hereto and their heirs,
executors, administrators, legal representatives, successors and assigns, and
they shall not be construed as conferring any rights on any other persons.
(g) Any provision of this Agreement which is invalid or unenforceable in
any jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(h) Each of the parties hereto shall use all reasonable efforts to take, or
cause to be taken, any appropriate action under the HSR Act with respect to the
transactions contemplated hereby, including without limitation promptly making
their respective filings, if any, which are required under the HSR Act.
(i) Seller desires to acquire, prior to the conveyance of the Sale Shares
to Purchaser, a minimum of 700,000 additional shares of the Issuer's common
stock ("Additional Shares"). Purchaser shall provide reasonable assistance
(including, but not limited to, transactions designed in an effort to comply
with Section 1042 of the Internal Revenue Code) to Seller in Seller's efforts to
acquire the Additional Shares; provided, however, the inability of Seller to
acquire the Additional Shares in a timely fashion shall not affect in any way
the right of Purchaser to have the Sale Shares conveyed to Purchaser in
accordance with the terms of this Agreement. Included in Purchaser's assistance
to Seller shall be the obligation to provide Seller with a loan sufficient to
acquire the Additional Shares but in no case shall the loan exceed the Purchase
Price nor shall Purchaser be obligated to make such loan unless Purchaser knows
that it is acquiring the Sale Shares. The interest rate for such loan shall be
at a rate of 5% per annum and repayment of the loan and interest must occur
within 10 days after the loan is made or on the date of Closing, whichever
occurs first.
(j) This Agreement may be executed in any number of counterparts and any
party hereto may execute any such counterpart, each of which when executed and
delivered shall be deemed to be an original and all of which counterparts taken
together shall constitute but one and the same instrument.
(k) Purchaser will use its best efforts to prevent Seller from being
terminated without the prior consent of the trustee of Seller.
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(l) Purchaser and the trustee of Seller shall address, as appropriate, the
concerns of the current shareholders of Issuer, the employees and management of
Issuer and professional organizations employed by the Issuer in a fair and
forthright manner.
(m) The covenants, obligations and undertakings contained in this Agreement
shall be solely for the benefit of the parties to this Agreement and no other
person (including, but not limited to, beneficiaries and participants of Seller)
shall have the right to enforce any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of September 24, 1997.
THE EMPLOYEE STOCK OWNERSHIP
TRUST OF THE J. C. NICHOLS
COMPANY
By: INTRUST Bank, N.A.
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As Trustee
By: /s/ Scott Rankin
-----------------------------------
Name: Scott Rankin
---------------------------------
Title: Vice President
--------------------------------
BOSFIELD, L.L.C.
By: /s/ Mark G. Siffin
----------------------------------------
Name: Mark G. Siffin
--------------------------------------
Title: Member
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