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AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
JEFFERSON SAVINGS BANCORP, INC.
AND
UNION PLANTERS CORPORATION
DATED AS OF SEPTEMBER 20, 2000
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TABLE OF CONTENTS
Page
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Parties 1
1.1 Merger 2
ARTICLE 2 - TERMS OF MERGER 3
2.1 Charter 3
2.2 Bylaws 3
2.3 Directors and Officers 3
ARTICLE 3 - MANNER OF CONVERTING SHARES 3
3.1 Conversion of Shares 3
3.2 Anti-Dilution Provisions 4
3.3 Shares Held by Jefferson or UPC 4
3.4 Fractional Shares 4
3.5 Conversion of Stock Rights 5
ARTICLE 4 - EXCHANGE OF SHARES 6
4.1 Exchange Procedures 6
4.2 Rights of Former Jefferson Stockholders 7
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF JEFFERSON 8
5.1 Organization, Standing, and Power 8
5.2 Authority; No Breach By Agreement 8
5.3 Capital Stock 9
5.4 Jefferson Subsidiaries 9
5.5 SEC Filings; Financial Statements 10
5.6 Absence of Undisclosed Liabilities 10
5.7 Absence of Certain Changes or Events 11
5.8 Tax Matters 11
5.9 Assets 12
5.10 Environmental Matters 13
5.11 Compliance with Laws 14
5.12 Labor Relations 14
5.13 Employee Benefit Plans 14
5.14 Material Contracts 17
5.15 Legal Proceedings 18
5.16 Reports 18
5.17 Statements True and Correct 18
5.18 Tax and Regulatory Matters 18
5.19 State Takeover Laws 19
5.20 Charter Provisions 19
5.21 Rights Agreement 19
5.22 Derivatives 19
5.23 Opinion of Financial Advisor 19
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF UPC 20
6.1 Organization, Standing, and Power 20
6.2 Authority; No Breach By Agreement 20
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6.3 Capital Stock 21
6.4 UPC Subsidiaries 21
6.5 SEC Filings; Financial Statements 21
6.6 Absence of Undisclosed Liabilities 22
6.7 Absence of Certain Changes or Events 22
6.8 Tax Matters 22
6.9 Environmental Matters 24
6.10 Compliance with Laws 25
6.11 Legal Proceedings 25
6.12 Reports 25
6.13 Statements True and Correct 25
6.14 Tax and Regulatory Matters 26
6.15 Employee Benefit Plans 26
6.16 Derivatives 27
ARTICLE 7 - CONDUCT OF BUSINESS PENDING CONSUMMATION 27
7.1 Affirmative Covenants of Both Parties 27
7.2 Negative Covenants of Jefferson 27
7.3 Adverse Changes in Condition 29
7.4 Reports 29
ARTICLE 8 - ADDITIONAL AGREEMENTS 30
8.1 Registration Statement; Proxy Statement;
Stockholder Approval 30
8.2 Exchange Listing 31
8.3 Applications 31
8.4 Filings with State Offices 31
8.5 Agreement as to Efforts to Consummate 31
8.6 Investigation and Confidentiality 31
8.7 Press Releases 32
8.8 Certain Actions 32
8.9 Tax Treatment 33
8.10 State Takeover Laws 33
8.11 Charter Provisions 33
8.12 Rights Agreement 33
8.13 Agreement of Affiliates 33
8.14 Employee Benefits and Contracts 34
8.15 Indemnification 34
ARTICLE 9 - CONDITIONS PRECEDENT TO OBLIGATIONS TO
CONSUMMATE 36
9.1 Conditions to Obligations of Each Party 36
9.2 Conditions to Obligations of UPC 38
9.3 Conditions to Obligations of Jefferson 39
ARTICLE 10 - TERMINATION 40
10.1 Termination 40
10.2 Effect of Termination 43
10.3 Non-Survival of Representations and Covenants 43
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ARTICLE 11 - MISCELLANEOUS 43
11.1 Definitions 43
11.2 Expenses 52
11.3 Brokers and Finders 53
11.4 Entire Agreement 53
11.5 Amendments 53
11.6 Waivers 53
11.7 Assignment 54
11.8 Notices 54
11.9 Governing Law 55
11.10 Counterparts 55
11.11 Captions 55
11.12 Interpretations 55
11.13 Enforcement of Agreement 56
11.14 Severability 56
Signatures 57
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LIST OF EXHIBITS
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EXHIBIT NUMBER DESCRIPTION
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1. Form of Stock Option Agreement. (Section 1.4).
2. Form of Plan of Merger. (Section 1.1)
3. Form of Affiliate Agreement. (Sections 8.13, 9.2(d)).
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AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made and
entered into as of September 20, 2000, by and between JEFFERSON SAVINGS
BANCORP, INC. ("Jefferson"), a corporation organized and existing under
the Laws of the State of Delaware, with its principal office located in
Ballwin, Missouri; and UNION PLANTERS CORPORATION ("UPC"), a corporation
organized and existing under the Laws of the State of Tennessee, with its
principal office located in Memphis, Tennessee.
PREAMBLE
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The Boards of Directors of Jefferson and UPC are of the
opinion that the transactions described herein are in the best interests
of the parties to this Agreement and their respective stockholders. This
Agreement provides for the acquisition of Jefferson by UPC pursuant to
the merger (the "Merger") of Jefferson with and into Union Planters
Holding Corporation ("UPHC"), a wholly-owned subsidiary of UPC organized
under the Laws of the State of Tennessee. At the effective time of the
Merger, the outstanding shares of the common stock of Jefferson shall be
converted into shares of the common stock of UPC (except as provided
herein). As a result, stockholders of Jefferson shall become
stockholders of UPC, and UPHC shall continue to conduct the business and
operations of Jefferson as a wholly-owned subsidiary of UPC. The
transactions described in this Agreement are subject to the approvals of
the stockholders of Jefferson, the Board of Governors of the Federal
Reserve System, and certain state regulatory authorities, and the
satisfaction of certain other conditions described in this Agreement. It
is the intention of the parties to this Agreement that the Merger (i) for
federal income tax purposes shall qualify as a "reorganization" within
the meaning of Section 368(a) of the Internal Revenue Code and (ii) for
accounting purposes shall be treated as a purchase transaction.
Immediately after the execution and delivery of this
Agreement, as a condition and inducement to UPC's willingness to enter
into this Agreement, Jefferson and UPC are entering into a stock option
agreement (the "Stock Option Agreement"), in substantially the form of
Exhibit 1, pursuant to which Jefferson is granting to UPC an option to
purchase shares of Jefferson Common Stock.
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:
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ARTICLE 1
TRANSACTIONS AND TERMS OF MERGER
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1.1 MERGER. Subject to the terms and conditions of this
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Agreement, at the Effective Time, Jefferson shall be merged with and into
UPHC in accordance with the provisions of Section 252 of the DGCL and
with the effect provided in Section 259 of the DGCL and in accordance
with the provisions of Section 48-21-109 of the TBCA and with the effect
provided in Section 48-21-108 of the TBCA (the "Merger"). UPHC shall be
the Surviving Corporation resulting from the Merger and shall continue to
be governed by the Laws of the State of Tennessee. The Merger shall be
consummated pursuant to the terms of this Agreement, which has been
approved and adopted by the respective Boards of Directors of Jefferson
and UPC, and the Plan of Merger, in substantially the form of Exhibit 2,
which has been approved and adopted by the Board of Directors of
Jefferson and will be approved and adopted by the Board of Directors of
UPHC and by UPC as the sole shareholder of UPHC. UPC shall cause UPHC to
execute the Plan of Merger prior to the Effective Time.
1.2 TIME AND PLACE OF CLOSING. The consummation of the
-------------------------
Merger (the "Closing") shall 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 such
location as may be mutually agreed upon by the Parties.
1.3 EFFECTIVE TIME. The Merger and the other transactions
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contemplated by this Agreement shall become effective on the date and
at the time the Certificate of Merger shall become effective with the
Secretary of State of the State of Delaware and the Articles of Merger
shall become effective with the Secretary of State of the State of
Tennessee (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 or before the 15th
business day (as designated by UPC) following the last to occur of
(i) the effective date (including expiration of any applicable waiting
period) of the last required Consent of any Regulatory Authority having
authority over and approving or exempting the Merger and (ii) the date on
which the stockholders of Jefferson approve the matters relating to this
Agreement required to be approved by such stockholders by applicable Law.
1.4 EXECUTION OF STOCK OPTION AGREEMENT. Immediately
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after the execution of this Agreement and as a condition hereto,
Jefferson is executing and delivering to UPC the Stock Option Agreement.
1.5 RESTRUCTURE OF TRANSACTION. UPC shall, in its
--------------------------
reasonable discretion, have the unilateral right to revise the structure
of the Merger contemplated by this Agreement in order to achieve tax
benefits or for any other reason which UPC may deem advisable; provided,
however, that UPC shall not have the right, without the approval of the
Board of Directors of Jefferson and, if required by applicable Law, the
holders of the Jefferson Common Stock, to make any revision to the
structure of the Merger which: (i) changes the amount of the
consideration which the holders of shares of Jefferson Common Stock are
entitled to receive (determined in the
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manner provided in Section 3.1 of this Agreement); (ii) changes the
intended tax-free effects of the Merger to UPC, Jefferson, or the holders
of shares of Jefferson Common Stock; (iii) would permit UPC to pay the
consideration other than by delivery of UPC Common Stock registered with
the SEC (in the manner described in Section 4.1 of this Agreement); (iv)
would be materially adverse to the interests of Jefferson or adverse to
the holders of shares of Jefferson Common Stock; (v) would materially
impede or delay consummation of the Merger; or (vi) would require a vote
of UPC's stockholders under relevant state Law. UPC may exercise this
right of revision by giving written notice to Jefferson in the manner
provided in Section 11.8 of this Agreement which notice shall be in the
form of an amendment to this Agreement or in the form of an Amended and
Restated Agreement and Plan of Reorganization. The Parties shall execute
such documents as necessary to effect the revised structure of the
Merger, including such changes as required to retain the tax-free
character of the Merger.
ARTICLE 2
TERMS OF MERGER
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2.1 CHARTER. The Charter of UPHC in effect immediately
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prior to the Effective Time shall be the Charter of the Surviving
Corporation after the Effective Time until otherwise amended or repealed.
2.2 BYLAWS. The Bylaws of UPHC in effect immediately
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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 UPHC in
----------------------
office immediately prior to the Effective Time, together with such
additional individuals thereafter 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
UPHC in office immediately prior to the Effective Time, together with
such additional individuals thereafter 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
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3.1 CONVERSION OF SHARES. Subject to the provisions of
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this Article 3, at the Effective Time, by virtue of the Merger and
without any action on the part of UPC or Jefferson, or the stockholders
of either of the foregoing, the shares of the constituent corporations
shall be converted as follows:
(a) Each share of UPC Common Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and
outstanding from and after the Effective Time and be unaffected
solely as a result of the Merger.
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(b) Each share of UPHC Common Stock issued and outstanding
immediately prior to the Effective Time shall remain issued and
outstanding from and after the Effective Time and be unaffected
solely as a result of the Merger.
(c) Each share of Jefferson Common Stock (including any
associated Preferred Stock Purchase Rights, but excluding shares
held by any Jefferson Company or any UPC Company, in each case
other than in a fiduciary capacity or as a result of debts
previously contracted) issued and outstanding at the Effective
Time shall be converted into .433 of a share of UPC Common Stock
(as possibly adjusted pursuant to Section 10.1(g) of this Agreement,
the "Exchange Ratio"). Pursuant to the UPC Rights Agreement, each
share of UPC Common Stock issued in connection with the Merger upon
conversion of Jefferson Common Stock shall be accompanied by a UPC
Right.
3.2 ANTI-DILUTION PROVISIONS. In the event Jefferson
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changes (or establishes a record date for changing) the number of shares
of Jefferson Common Stock issued and outstanding prior to the Effective
Time as a result of a stock split, stock dividend, recapitalization, or
similar transaction with respect to such stock, the Exchange Ratio shall
be proportionately adjusted. In the event UPC changes (or establishes a
record date for changing) the number of shares of UPC Common Stock
issued and outstanding prior to the Effective Time as a result of a
stock split, stock dividend, recapitalization, or similar transaction
with respect to such stock and the record date therefor (in the case of
a stock dividend) or the effective date thereof (in the case of a stock
split or similar recapitalization for which a record date is not
established) shall be prior to the Effective Time, the Exchange Ratio
shall be proportionately adjusted.
3.3 SHARES HELD BY JEFFERSON OR UPC. Each of the shares
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of Jefferson Common Stock held by any Jefferson Company or by any UPC
Company, 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.
3.4 FRACTIONAL SHARES. Notwithstanding any other
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provision of this Agreement, each holder of shares of Jefferson Common
Stock exchanged pursuant to the Merger who would otherwise have been
entitled to receive a fraction of a share of UPC Common Stock (after
taking into account all certificates delivered by such holder) shall
receive, in lieu thereof, cash (without interest) in an amount equal to
such fractional part of a share of UPC Common Stock multiplied by the
market value of one share of UPC Common Stock at the Effective Time.
The market value of one share of UPC Common Stock at the Effective Time
shall be the last sale price of UPC Common Stock on the NYSE-Composite
Transactions List (as reported by The Wall Street Journal or, if not
reported thereby, any other authoritative source selected by UPC) on the
last trading day preceding the Effective Time. No such holder will be
entitled to dividends, voting rights, or any other rights as a
stockholder in respect of any fractional shares.
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3.5 CONVERSION OF STOCK RIGHTS.
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(a) At the Effective Time, each award, option, or
other right to purchase or acquire shares of Jefferson Common Stock
pursuant to stock options, stock appreciation rights, or stock awards
("Jefferson Rights") granted by Jefferson under the Jefferson Stock
Plans, which are outstanding at the Effective Time, whether or not
exercisable, shall be, at the election of the holder of such Jefferson
Right either (i) canceled in exchange for a cash payment for each share
of Jefferson Common Stock subject to such Jefferson Right (the "Option
Settlement Payment") or (ii) converted into and become rights with
respect to UPC Common Stock, and UPC shall assume each Jefferson Right,
in accordance with the Jefferson Stock Plans and stock option agreement
by which it is evidenced (the "Conversion Option"). A holder of a
Jefferson Right must make such election in writing delivered to UPC no
later than 5:00 P.M., Central Time, on the fifth day prior to the day on
which the Effective Time occurs. To the extent a holder does not
provide UPC with such written election, that holder shall receive the
Option Settlement Payment for each share of Jefferson Common Stock
subject to any Jefferson Right held by such holder. The Option
Settlement Payment shall be equal to the difference between (i) the
product of (1) the Exchange Ratio and (2) the Option Settlement Closing
Price and (ii) the price per share of Jefferson Common Stock pursuant to
which the holder of such Jefferson Right may purchase the shares of
Jefferson Common Stock to which such Jefferson Right relates. At the
Effective Time, each such Jefferson Right for which the holder has
selected the Option Settlement Payment shall no longer represent the
right to purchase shares of Jefferson Common Stock, but in lieu thereof
shall represent only the nontransferable right to receive the Option
Settlement Payment, which payment (without interest) shall be made to
such holder within five business days after the Effective Time upon
presentation of the agreement representing such Jefferson Right for
cancellation.
(b) With respect to the Conversion Option, the
Jefferson Stock Plans shall be amended hereby such that from and after
the Effective Time, (i) UPC and its Salary and Benefits Committee shall
be substituted for Jefferson and the committee of Jefferson's Board of
Directors (including, if applicable, the entire Board of Directors of
Jefferson) administering such Jefferson Stock Plan, (ii) each Jefferson
Right assumed by UPC may be exercised solely for shares of UPC Common
Stock (or cash in the case of stock appreciation rights), (iii) the
number of shares of UPC Common Stock subject to such Jefferson Right
shall be equal to the number of shares of Jefferson Common Stock subject
to such Jefferson Right immediately prior to the Effective Time
multiplied by the Exchange Ratio and rounding down to the nearest whole
share, and (iv) the per share exercise price shall be adjusted by
dividing the per share exercise (or threshold) price under each such
Jefferson Right by the Exchange Ratio and rounding up to the nearest
cent. Notwithstanding the provisions of clauses (iii) and (iv) of the
first sentence of this Section 3.6(b), each Jefferson Right which is an
"incentive stock option" shall be adjusted as required by Section 424 of
the Internal Revenue Code, 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 agrees to take all necessary
steps to effectuate the foregoing provisions of this Section 3.5(b).
(c) As soon as reasonably practicable after the
Effective Time, UPC shall deliver to the participants in each Jefferson
Stock Plan selecting the Conversion Option an appropriate notice setting
forth such participant's rights pursuant thereto and the grants pursuant
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to such Jefferson Stock Plan shall continue in effect on the same terms
and conditions (subject to the adjustments required by Section 3.5(a)
and (b) after giving effect to the Merger), and UPC shall comply with
the terms of each Jefferson Stock Plan to ensure, to the extent required
by, and subject to the provisions of, such Jefferson Stock Plan, that
Jefferson Rights which qualified as incentive stock options prior to the
Effective Time continue to qualify as incentive stock options after the
Effective Time. At or prior to the Effective Time, UPC shall take all
corporate action necessary to reserve for issuance sufficient shares of
UPC Common Stock for delivery upon exercise of Jefferson Rights assumed
by it in accordance with this Section 3.5. As soon as reasonably
practicable after the Effective Time, UPC shall file a registration
statement on Form S-3 or Form S-8, as the case may be (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.
(d) All restrictions or limitations on transfer with
respect to Jefferson Common Stock awarded under the Jefferson Stock
Plans or any other plan, program, or arrangement of any Jefferson
Company, to the extent that such restrictions or limitations shall not
have already lapsed, and except as otherwise expressly provided in such
plan, program, or arrangement, shall remain in full force and effect
with respect to shares of UPC Common Stock into which such restricted
stock is converted pursuant to Section 3.1 of this Agreement.
ARTICLE 4
EXCHANGE OF SHARES
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4.1 EXCHANGE PROCEDURES. As soon as reasonably
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practicable after the Effective Time, UPC and Jefferson shall cause the
exchange agent selected by UPC (the "Exchange Agent") to mail to the
former stockholders of Jefferson appropriate transmittal materials
(which shall specify that delivery shall be effected, and risk of loss
and title to the certificates theretofore representing shares of
Jefferson Common Stock shall pass, only upon proper delivery of such
certificates to the Exchange Agent). If any certificate shall have been
lost, stolen, mislaid, or destroyed, upon receipt of (i) an affidavit of
that fact from the holder claiming such certificate to be lost, mislaid,
stolen, or destroyed, (ii) such guarantee as UPC or the Exchange Agent
may require, including an open penalty lost securities bond, as
indemnity, and (iii) any other documents necessary to evidence and
effect the bona fide exchange thereof, the Exchange Agent shall issue to
such holder the consideration into which the shares represented by such
lost, stolen, mislaid, or destroyed certificate shall have been
converted. The Exchange Agent may establish such other reasonable and
customary rules and procedures in connection with its duties as it may
deem appropriate. After the Effective Time, each holder of shares of
Jefferson Common Stock (other than shares to be canceled pursuant to
Section 3.3 of this Agreement) issued and outstanding at the Effective
Time shall surrender the certificate or certificates representing such
shares to the Exchange Agent and shall promptly upon surrender thereof
receive in exchange therefor the consideration provided in Section 3.1
of this Agreement, together with all undelivered dividends or
distributions in respect of such shares (without interest thereon)
pursuant to Section 4.2 of this Agreement. To the extent required by
Section 3.4 of this Agreement, each holder of shares of Jefferson Common
Stock issued and outstanding at the
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Effective Time also shall receive, upon surrender of the certificate or
certificates representing such shares, cash in lieu of any fractional
share of UPC Common Stock to which such holder may be otherwise entitled
(without interest). UPC shall not be obligated to deliver the
consideration to which any former holder of Jefferson Common Stock is
entitled as a result of the Merger until such holder surrenders such
holder's certificate or certificates representing the shares of
Jefferson Common Stock for exchange as provided in this Section 4.1.
The certificate or certificates of Jefferson Common Stock so surrendered
shall be duly endorsed as the Exchange Agent may require. Any other
provision of this Agreement notwithstanding, neither the Surviving
Corporation nor the Exchange Agent shall be liable to a holder of
Jefferson 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 JEFFERSON STOCKHOLDERS. At the
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Effective Time, the stock transfer books of Jefferson shall be closed as
to holders of Jefferson Common Stock immediately prior to the Effective
Time and no transfer of Jefferson 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 theretofore representing shares of Jefferson Common Stock
(other than shares to be canceled pursuant to Section 3.3 of this
Agreement) shall from and after the Effective Time represent for all
purposes only the right to receive the consideration provided in
Sections 3.1 and 3.4 of this Agreement in exchange therefor, subject,
however, to the Surviving Corporation's obligation to pay any dividends
or make any other distributions with a record date prior to the
Effective Time which have been declared or made by Jefferson in respect
of such shares of Jefferson Common Stock in accordance with the terms of
this Agreement and which remain unpaid at the Effective Time. To the
extent permitted by Law, former stockholders of record of Jefferson
shall be entitled to vote after the Effective Time at any meeting of UPC
stockholders the number of whole shares of UPC Common Stock into which
their respective shares of Jefferson Common Stock are converted,
regardless of whether such holders have exchanged their certificates
representing Jefferson Common Stock for certificates representing UPC
Common Stock in accordance with the provisions of this Agreement.
Whenever a dividend or other distribution is declared by UPC on the UPC
Common Stock, the record date for which is at or after the Effective
Time, the declaration shall include dividends or other distributions on
all shares issuable pursuant to this Agreement, but beginning 30 days
after the Effective Time no dividend or other distribution payable to
the holders of record of UPC Common Stock as of any time subsequent to
the Effective Time shall be delivered to the holder of any certificate
representing shares of Jefferson Common Stock issued and outstanding at
the Effective Time until such holder surrenders such certificate for
exchange as provided in Section 4.1 of this Agreement. However, upon
surrender of such Jefferson Common Stock certificate, both the UPC
Common Stock certificate (together with all such undelivered dividends
or other distributions without interest) and any undelivered dividends
and cash payments to be paid for fractional share interests (without
interest) shall be delivered and paid with respect to each share
represented by such certificate.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF JEFFERSON
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Except as set forth in the Jefferson Disclosure Memorandum
referencing a specific section of this Agreement, Jefferson hereby
represents and warrants to UPC as follows:
5.1 ORGANIZATION, STANDING, AND POWER. Jefferson is a
---------------------------------
corporation duly organized, validly existing, and in good standing under
the Laws of the State of Delaware, and has the corporate power and
authority to carry on its business as now conducted and to own, lease,
and operate its Material Assets. Jefferson 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 Jefferson.
5.2 AUTHORITY; NO BREACH BY AGREEMENT.
---------------------------------
(a) Jefferson 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 Jefferson,
subject to the approval of this Agreement and the Plan of Merger by
holders of the requisite number of shares of Jefferson Common Stock,
voting together as one class, as required by Law, which is the only
stockholder vote required for approval of this Agreement and the Plan of
Merger and consummation of the Merger by Jefferson. Subject to such
requisite stockholder approval, this Agreement and the Plan of Merger
represent legal, valid, and binding obligations of Jefferson,
enforceable against Jefferson in accordance with their respective terms
(except in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, conservatorship,
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 and the Plan of Merger by Jefferson, nor the consummation by
Jefferson of the transactions contemplated hereby or thereby, nor
compliance by Jefferson with any of the provisions hereof or thereof,
will (i) conflict with or result in a breach of any provision of
Jefferson's Certificate 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 Jefferson Company under,
any Contract or Permit of any Jefferson 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
Jefferson, or (iii) subject to receipt of the requisite Consents
referred to in Section 9.1(b) of
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this Agreement, violate any Law or Order applicable to any Jefferson
Company or any of their respective Material Assets.
(c) Other than in connection or compliance with the
provisions of the Securities Laws, applicable state corporate, banking
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 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
Jefferson, no notice to, filing with, or Consent of, any public body or
authority is necessary for the consummation by Jefferson of the Merger
and the other transactions contemplated in this Agreement and the Plan
of Merger.
5.3 CAPITAL STOCK.
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(a) The authorized capital stock of Jefferson
consists, as of the date of this Agreement, of (i) 20,000,000 shares of
Jefferson Common Stock, of which 10,100,112 shares are issued and
9,966,205 shares are outstanding as of the date of this Agreement and,
not more than 10,453,108 shares will be issued and outstanding at the
Effective Time, and (ii) 5,000,000 shares of Jefferson Preferred Stock,
of which no shares are issued and outstanding as of the date of this
Agreement and no shares will be issued and outstanding as of the
Effective Time. All of the issued and outstanding shares of Jefferson
Common Stock are duly and validly issued and outstanding and are fully
paid and nonassessable under the DGCL. None of the outstanding shares
of Jefferson Common Stock has been issued in violation of any preemptive
rights of the current or past stockholders of Jefferson.
(b) Except (i) as set forth in Section 5.3(a) of
this Agreement, (ii) with respect to shares of Jefferson Common Stock
issuable under the outstanding options under the Jefferson Stock Plans,
or (iii) as provided pursuant to the Stock Option Agreement or the
Jefferson Rights Agreement, there are no shares of capital stock or
other equity securities of Jefferson outstanding and no outstanding
Jefferson Rights relating to the capital stock of Jefferson.
5.4 JEFFERSON SUBSIDIARIES. Jefferson has disclosed in
----------------------
Section 5.4 of the Jefferson Disclosure Memorandum all of the Jefferson
Subsidiaries as of the date of this Agreement. Jefferson or one of its
Subsidiaries owns all of the issued and outstanding shares of capital
stock of each Jefferson Subsidiary. No equity securities of any
Jefferson Subsidiary are or may become required to be issued (other than
to another Jefferson Company) by reason of any Rights, and there are no
Contracts by which any Jefferson Subsidiary is bound to issue (other
than to another Jefferson Company) additional shares of its capital
stock or Rights or by which any Jefferson Company is or may be bound to
transfer any shares of the capital stock of any Jefferson Subsidiary
(other than to another Jefferson Company). There are no Contracts
relating to the rights of any Jefferson Company to vote or to dispose of
any shares of the capital stock of any Jefferson Subsidiary. All of the
shares of capital stock of each Jefferson Subsidiary held by a Jefferson
Company are duly authorized, validly issued, and fully paid and, except
as provided in statutes pursuant to which depository institution
Subsidiaries are organized, nonassessable under the applicable
corporation Law of the jurisdiction in which such Subsidiary is
incorporated
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or organized and are owned by the Jefferson Company free and clear of
any Lien. Each Jefferson Subsidiary is either a federal savings bank or
a corporation, and is duly organized, validly existing, and (as to
corporations) in good standing under the Laws of the jurisdiction in
which it is incorporated or organized, and has the corporate power and
authority necessary for it to own, lease, and operate its Material
Assets and to carry on its business as now conducted. Each Jefferson
Subsidiary 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 Jefferson. Each
Jefferson Subsidiary that is a depository institution is an "insured
depository institution" as defined in the Federal Deposit Insurance Act
and applicable regulations thereunder, and the deposits in which are
insured by the Bank Insurance Fund or Savings Association Insurance
Fund.
5.5 SEC FILINGS; FINANCIAL STATEMENTS.
---------------------------------
(a) Jefferson has filed and made available to UPC
all forms, reports, and documents required to be filed by Jefferson with
the SEC since December 31, 1994 (collectively, the "Jefferson SEC
Reports"). The Jefferson SEC Reports (i) at the time filed, complied in
all Material respects with the applicable requirements of the 1933 Act
and the 1934 Act, as the case may be, and (ii) did not at the time they
were filed (or if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing) contain any untrue
statement of a Material fact or omit to state a Material fact required
to be stated in such Jefferson SEC Reports or necessary in order to make
the statements in such Jefferson SEC Reports, in light of the
circumstances under which they were made, not misleading. Except for
Jefferson Subsidiaries that are registered as a broker, dealer, or
investment advisor or filings required due to fiduciary holdings of the
Jefferson Subsidiaries, none of Jefferson's Subsidiaries is required to
file any forms, reports, or other documents with the SEC.
(b) Each of the Jefferson Financial Statements
(including, in each case, any related notes) contained in the Jefferson
SEC Reports, including any Jefferson SEC Reports filed after the date of
this Agreement until the Effective Time, complied or will comply as to
form in all Material respects with the applicable published rules and
regulations of the SEC with respect thereto, was prepared or will be
prepared in accordance with GAAP (except as may be indicated in the
notes to such financial statements, or, in the case of unaudited
statements, as permitted by Form 10-Q of the SEC), and fairly presented
or will fairly present the consolidated financial position of Jefferson
and its Subsidiaries as at the respective dates and the consolidated
results of its operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or
are not expected to be Material in amount or effect.
5.6 ABSENCE OF UNDISCLOSED LIABILITIES. No Jefferson
----------------------------------
Company has any Liabilities that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson, except Liabilities which are accrued or reserved against in
the consolidated balance sheets of Jefferson as of June 30, 2000,
included in the Jefferson Financial Statements or
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reflected in the notes thereto and except for Liabilities incurred in
the ordinary course of business subsequent to June 30, 2000. No
Jefferson Company has incurred or paid any Liability since June 30,
2000, except for such Liabilities incurred or paid in the ordinary
course of business consistent with past business practice and which are
not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Jefferson.
5.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since June
------------------------------------
30, 2000, except as disclosed in the Jefferson Financial Statements,
(i) there have been no events, changes, or occurrences which have had,
or are reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Jefferson and (ii) the Jefferson Companies
have conducted their respective businesses in the ordinary and usual
course (excluding the incurrence of expenses in connection with this
Agreement and the transactions contemplated hereby).
5.8 TAX MATTERS.
-----------
(a) All Tax Returns required to be filed by or on
behalf of any of the Jefferson Companies have been timely filed, or
requests for extensions have been timely filed, granted, and have not
expired for periods ended on or before December 31, 1999, and, to the
Knowledge of Jefferson, all Tax Returns filed are complete and accurate
in all Material respects. All Tax Returns for periods ending on or
before the date of the most recent fiscal year end immediately preceding
the Effective Time will be timely filed by Jefferson if due on or before
the Effective Time or requests for extensions (if permitted) will be
timely filed by Jefferson if due after the Effective Time. All Taxes
shown on filed Tax Returns have been paid. There is no presently on-
going audit examination, deficiency, or refund Litigation with respect
to any Taxes, that is reasonably likely to result in a determination
that would have, individually or in the aggregate, a Material Adverse
Effect on Jefferson, except to the extent reserved against in the
Jefferson Financial Statements dated prior to the date of this
Agreement. All Taxes and other Liabilities due with respect to
completed and settled examinations or concluded Litigation have been
paid.
(b) None of the Jefferson Companies has executed an
extension or waiver of any statute of limitations on the assessment or
collection of any Tax due (excluding such statutes that relate to years
currently under examination by the Internal Revenue Service or other
applicable taxing authorities) that is currently in effect.
(c) Adequate provision for any Taxes due or to
become due for any of the Jefferson Companies for the period or periods
through and including the date of the respective Jefferson Financial
Statements has been made and is reflected on such Jefferson Financial
Statements.
(d) Each of the Jefferson Companies is in compliance
with, and its records contain all information and documents (including
properly completed IRS Forms W-9) necessary to comply with, all
applicable information reporting and Tax withholding requirements under
federal, state, and local Tax Laws, and such records identify with
reasonable specificity all accounts subject to backup withholding under
Section 3406 of the Internal Revenue Code, except
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for such instances of noncompliance and such omissions as are not
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Jefferson.
(e) None of the Jefferson Companies has made any
payments, is obligated to make any payments, or is a party to any
contract, agreement, or other arrangement that could obligate it to make
any payments that would be disallowed as a deduction under Section 280G
or 162(m) of the Internal Revenue Code.
(f) There are no Material Liens with respect to
Taxes upon any of the Assets of the Jefferson Companies except Liens for
Taxes not yet due or being contested in good faith and for which
adequate provision has been made.
(g) No Jefferson Company has filed any consent under
Section 341(f) of the Internal Revenue Code concerning collapsible
corporations.
(h) There has not been an ownership change, as
defined in Internal Revenue Code Section 382(g), of the Jefferson
Companies that occurred during or after any Taxable Period in which the
Jefferson Companies incurred a net operating loss that carries over to
any Taxable Period ending after December 31, 1998.
(i) After the date of this Agreement, no Material
election with respect to Taxes will be made without the prior consent of
UPC, which consent will not be unreasonably withheld.
5.9 ASSETS. The Jefferson Companies have good and
------
marketable title, free and clear of all Liens, to all of their
respective Assets, except where the failure to have such good and
marketable title is not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Jefferson. All tangible
properties used in the businesses of the Jefferson Companies are in good
condition, reasonable wear and tear excepted, and are usable in the
ordinary course of business consistent with Jefferson's past practices.
All Assets which are Material to Jefferson's business on a consolidated
basis, held under leases or subleases by any of the Jefferson Companies,
are held under valid Contracts enforceable in accordance with their
respective terms (except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or other 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 proceedings may be brought), and each such Contract is in full force
and effect. The Jefferson Companies currently maintain insurance in
amounts, scope, and coverage reasonably necessary for their operations.
None of the Jefferson Companies has received notice from any insurance
carrier that (i) such insurance will be canceled or that coverage
thereunder will be reduced or eliminated or (ii) premium costs with
respect to such policies of insurance will be substantially increased.
The Assets of the Jefferson Companies include all Assets required to
operate the business of the Jefferson Companies as presently conducted.
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5.10 ENVIRONMENTAL MATTERS.
---------------------
(a) To the Knowledge of Jefferson, each Jefferson
Company, its Participation Facilities, and its Loan Properties are, and
have been, in compliance with all Environmental Laws, except those
violations which are not reasonably likely to have, individually or in
the aggregate, a Material Adverse Effect on Jefferson.
(b) There is no Litigation pending or, to the
Knowledge of Jefferson, threatened before any court, governmental
agency, or authority, or other forum in which any Jefferson Company or
any of its Participation Facilities has been or, with respect to
threatened Litigation, may reasonably be expected to be named as a
defendant (i) for alleged noncompliance (including by any predecessor)
with any Environmental Law or (ii) relating to the release into the
environment of any Hazardous Material, whether or not occurring at, on,
under, or involving a site owned, leased, or operated by any Jefferson
Company or any of its Participation Facilities, except for such
Litigation pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson.
(c) There is no Litigation pending, or to the
Knowledge of Jefferson, threatened before any court, governmental
agency, or board, or other forum in which any of its Loan Properties (or
Jefferson in respect of such Loan Property) has been or, with respect to
threatened Litigation, may reasonably be expected to be named as a
defendant or potentially responsible party (i) for alleged noncompliance
(including by any predecessor) with any Environmental Law or
(ii) relating to the release into the environment of any Hazardous
Material, whether or not occurring at, on, under, or involving a Loan
Property, except for such Litigation pending or threatened that is not
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Jefferson.
(d) To the Knowledge of Jefferson, there is no
reasonable basis for any Litigation of a type described in subsections
(b) or (c), except such as is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson.
(e) To the Knowledge of Jefferson, during the period
of (i) any Jefferson Company's ownership or operation of any of their
respective current properties, (ii) any Jefferson Company's
participation in the management of any Participation Facility, or
(iii) any Jefferson Company's holding of a security interest in a Loan
Property, there have been no releases of Hazardous Material in, on,
under, or affecting (or potentially affecting) such properties, except
such as are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Jefferson. To the Knowledge of
Jefferson, prior to the period of (i) any Jefferson Company's ownership
or operation of any of their respective current properties, (ii) any
Jefferson Company's participation in the management of any Participation
Facility, or (iii) any Jefferson Company's holding of a security
interest in a Loan Property, to the Knowledge of Jefferson, there were
no releases of Hazardous Material in, on, under, or affecting any such
property, Participation Facility, or Loan Property, except such as are
not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on Jefferson.
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5.11 COMPLIANCE WITH LAWS. Jefferson is duly registered
--------------------
as a unitary savings and loan holding company under the SLHCA and
subject to regulation by the OTS. Each Jefferson Company has in effect
all Permits necessary for it to own, lease, or operate its Material
Assets and to carry on its business as now conducted, except for those
Permits the absence of which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson, and there has occurred no Default under any such Permit,
other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson. None of the Jefferson Companies:
(a) is in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business,
except for violations which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson; and
(b) has received any notification or communication from
any agency or department of federal, state, or local government or
any Regulatory Authority or the staff thereof (i) asserting that
any Jefferson Company is not in compliance with any of the Laws or
Orders which such governmental authority or Regulatory Authority
enforces, where such noncompliance is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson, (ii) threatening to revoke any Permits, the revocation
of which is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on Jefferson, or
(iii) requiring any Jefferson Company (x) to enter into or consent
to the issuance of a cease and desist order, formal agreement,
directive, commitment, or memorandum of understanding, or (y) to
adopt any Board resolution or similar undertaking, which restricts
materially the conduct of its business, or in any manner relates
to its capital adequacy, its credit or reserve policies, its
management, or the payment of dividends.
5.12 LABOR RELATIONS. No Jefferson Company is the
---------------
subject of any Litigation asserting that it or any other Jefferson
Company has committed an unfair labor practice (within the meaning of
the National Labor Relations Act or comparable state Law) or seeking to
compel it or any other Jefferson Company to bargain with any labor
organization as to wages or conditions of employment, nor is any
Jefferson Company a party to or bound by any collective bargaining
agreement, Contract, or other agreement or understanding with a labor
union or labor organization, nor is there any strike or other labor
dispute involving any Jefferson Company, pending or, to the Knowledge of
Jefferson, threatened, or to the Knowledge of Jefferson, is there any
activity involving any Jefferson Company's employees seeking to certify
a collective bargaining unit or engaging in any other organization
activity.
5.13 EMPLOYEE BENEFIT PLANS.
----------------------
(a) Jefferson has disclosed to UPC in writing prior
to the execution of the Agreement and in Section 5.13 of the Jefferson
Disclosure Memorandum, and has delivered or made available to UPC prior
to the execution of this Agreement correct and complete copies in each
case of, all Material Jefferson Benefits Plans. For purposes of this
Agreement, "Jefferson Benefit Plans" means all pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus, or other incentive plan, all
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other written employee programs or agreements, all medical, vision,
dental, or other health plans, all life insurance plans, and all other
employee benefit plans or fringe benefit plans, including, without
limitation, "employee benefit plans" as that term is defined in
Section 3(3) of ERISA maintained by, sponsored in whole or in part by,
or contributed to by, any Jefferson Company for the benefit of
employees, retirees, dependents, spouses, directors, independent
contractors, or other beneficiaries and under which employees, retirees,
dependents, spouses, directors, independent contractors, or other
beneficiaries are eligible to participate. Any of the Jefferson Benefit
Plans which is an "employee welfare benefit plan," as that term is
defined in Section 3(l) of ERISA, or an "employee pension benefit plan,"
as that term is defined in Section 3(2) of ERISA, is referred to herein
as a "Jefferson ERISA Plan." Any Jefferson ERISA Plan which is also a
"defined benefit plan" (as defined in Section 414(j) of the Internal
Revenue Code or Section 3(35) of ERISA) is referred to herein as a
"Jefferson Pension Plan." Neither Jefferson nor any Jefferson Company
has an "obligation to contribute" (as defined in ERISA Section 4212) to
a "multiemployer plan" (as defined in ERISA Sections 4001(a)(3) and
3(37)(A)). Each "employee pension benefit plan," as defined in
Section 3(2) of ERISA, maintained by any Jefferson Company at any time
during the last six years that was intended to qualify under
Section 401(a) of the Internal Revenue Code and with respect to which
any Jefferson Company has any Liability, is disclosed as such in Section
5.13 of the Jefferson Disclosure Memorandum.
(b) Jefferson has delivered or made available to UPC
prior to the execution of this Agreement correct and complete copies of
the following documents: (i) all trust agreements or other funding
arrangements for such Jefferson Benefit Plans (including insurance
contracts), and all amendments thereto, (ii) with respect to any such
Jefferson Benefit Plans or amendments thereto, all determination
letters, rulings, opinion letters, information letters, or advisory
opinions issued by the Internal Revenue Service, the United States
Department of Labor, or the Pension Benefit Guaranty Corporation after
December 31, 1994, (iii) annual reports or returns, audited or unaudited
financial statements, actuarial valuations and reports, and summary
annual reports prepared for any Jefferson Benefit Plan with respect to
the most recent plan year, and (iv) the most recent summary plan
descriptions and any modifications thereto.
(c) All Jefferson Benefit Plans are in Material
compliance with the applicable terms of ERISA, the Internal Revenue
Code, and any other applicable Laws, the breach or violation of which is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Jefferson. Each Jefferson ERISA Plan which is
intended to be qualified under Section 401(a) of the Internal Revenue
Code has received a favorable determination letter from the Internal
Revenue Service, and Jefferson is not aware of any circumstances which
could reasonably result in revocation of any such favorable
determination letter. Each trust created under any Jefferson ERISA Plan
has been determined to be exempt from Tax under Section 501(a) of the
Internal Revenue Code and Jefferson is not aware of any circumstance
which could reasonably result in revocation of such exemption. With
respect to each Jefferson Benefit Plan to the Knowledge of Jefferson, no
event has occurred which could reasonably give rise to a loss of any
intended Tax consequences under the Internal Revenue Code or to any Tax
under Section 511 of the Internal Revenue Code that is reasonably
likely, individually or in the aggregate, to have a Material Adverse
Effect on Jefferson. There is no Material pending or, to
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the Knowledge of Jefferson, threatened Litigation (other than routine
claims for benefits) relating to any Jefferson ERISA Plan.
(d) No Jefferson Company has engaged in a
transaction with respect to any Jefferson Benefit Plan that, assuming
the Taxable Period of such transaction expired as of the date of this
Agreement, would subject any Jefferson Company to a Material tax or
penalty imposed by either Section 4975 of the Internal Revenue Code or
Section 502(i) of ERISA in amounts which are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson. Neither Jefferson nor, to the Knowledge of Jefferson, any
administrator or fiduciary of any Jefferson Benefit Plan (or any agent
of any of the foregoing) has engaged in any transaction, or acted or
failed to act in any manner which could subject Jefferson to any direct
or indirect Liability (by indemnity or otherwise) for breach of any
fiduciary, co-fiduciary, or other duty under ERISA, where such
Liability, individually or in the aggregate, is reasonably likely to
have a Material Adverse Effect on Jefferson. Except as disclosed under
Section 5.13 of the Jefferson Disclosure Memorandum, no oral or written
representation or communication with respect to any aspect of the
Jefferson Benefit Plans has been made to employees of any Jefferson
Company which is not in accordance with the written or otherwise
preexisting terms and provisions of such plans, where any Liability with
respect to such representation or disclosure is reasonably likely to
have a Material Adverse Effect on Jefferson.
(e) No Jefferson Pension Plan has any "unfunded
current liability," as that term is defined in Section 302(d)(8)(A) of
ERISA, and the fair market value of all benefits (whether vested or not)
accrued to date by all present or former participants in such Jefferson
Pension Plan exceeds the plan's "benefit liabilities" as that term is
defined in Section 4001(a)(16) of ERISA. For this purpose, the
assumptions for valuing plan Assets or Liabilities shall be the
assumptions which would be used by the Pension Benefit Guaranty
Corporation in an involuntary plan termination under ERISA Section 4042.
Since the date of the most recent actuarial valuation, there has been
(i) no Material change in the financial position or funded status of any
Jefferson Pension Plan, (ii) no change in the actuarial assumptions with
respect to any Jefferson Pension Plan, and (iii) no increase in benefits
under any Jefferson Pension Plan as a result of plan amendments or
changes in applicable Law, any of which is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson. Neither any Jefferson Pension Plan nor any "single-employer
plan," within the meaning of Section 4001(a)(15) of ERISA, currently or
formerly maintained by any Jefferson Company, or the single-employer
plan of any entity which is considered one employer with Jefferson under
Section 4001 of ERISA or Section 414 of the Internal Revenue Code or
Section 302 of ERISA (a "Jefferson ERISA Affiliate") has an "accumulated
funding deficiency" within the meaning of Section 412 of the Internal
Revenue Code or Section 302 of ERISA (whether or not waived). All
contributions with respect to a Jefferson Pension Plan or any single-
employer plan of a Jefferson ERISA Affiliate have or will be timely made
and there is no lien or expected to be a lien under Internal Revenue
Code Section 412(n) or ERISA Section 302(f) or Tax under Internal
Revenue Code Section 4971. No Jefferson Company has provided, or is
required to provide, security to a Jefferson Pension Plan or to any
single-employer plan of a Jefferson ERISA Affiliate pursuant to
Section 401(a)(29) of the Internal Revenue Code. All premiums required
to be paid under
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ERISA Section 4006 have been timely paid by Jefferson, except to the
extent any failure would not have a Material Adverse Effect on
Jefferson.
(f) No Liability under Title IV of ERISA has been or
is expected to be incurred by any Jefferson Company with respect to any
defined benefit plan currently or formerly maintained by any of them or
by any Jefferson ERISA Affiliate that has not been satisfied in full
(other than Liability for Pension Benefit Guaranty Corporation premiums,
which have been paid when due) except to the extent any failure would
not have a Material Adverse Effect on Jefferson.
(g) No Jefferson Company has any obligations for
retiree health and retiree life benefits under any of the Jefferson
Benefit Plans other than with respect to benefit coverage mandated by
applicable Law.
(h) Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby
will, by themselves, (i) result in any payment (including, without
limitation, severance, golden parachute, or otherwise) becoming due to
any director or any employee of any Jefferson Company from any Jefferson
Company under any Jefferson Benefit Plan or otherwise, (ii) increase any
benefits otherwise payable under any Jefferson Benefit Plan, or
(iii) result in any acceleration of the time of payment or vesting of
any such benefit.
5.14 MATERIAL CONTRACTS. None of the Jefferson Companies,
------------------
nor any of their respective Assets, businesses, or operations, is a
party to, or is bound or affected by, or receives benefits under,
(i) any employment, severance, termination, consulting, or retirement
Contract providing for aggregate payments to any Person in any calendar
year in excess of $100,000, (ii) any Contract relating to the borrowing
of money by any Jefferson Company or the guarantee by any Jefferson
Company of any such obligation (other than Contracts evidencing deposit
liabilities, purchases of federal funds, fully-secured repurchase
agreements, and Federal Home Loan Bank advances of depository
institution Subsidiaries, trade payables, and Contracts relating to
borrowings or guarantees made in the ordinary course of business), and
(iii) any other Contract or amendment thereto that would be required to
be filed as an exhibit to a Form 10-K filed by Jefferson with the SEC as
of the date of this Agreement that has not been filed or incorporated by
reference as an exhibit to Jefferson's Form 10-K filed for the fiscal
year ended December 31, 1999, or in another SEC Document (together with
all Contracts referred to in Sections 5.9 and 5.13(a) of this Agreement,
the "Jefferson Contracts"). With respect to each Jefferson Contract:
(i) the Contract is in full force and effect; (ii) no Jefferson Company
is in Default thereunder, other than Defaults which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse
Effect on Jefferson; (iii) no Jefferson Company has repudiated or waived
any Material provision of any such Contract; and (iv) no other party to
any such Contract is, to the Knowledge of Jefferson, in Default in any
respect, other than Defaults which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson, or, to the Knowledge of Jefferson, has repudiated or waived
any Material provision thereunder.
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5.15 LEGAL PROCEEDINGS.
-----------------
(a) There is no Litigation instituted or pending,
or, to the Knowledge of Jefferson, threatened (or unasserted but
considered probable of assertion and which if asserted would have at
least a reasonable probability of an unfavorable outcome to any
Jefferson Company) against any Jefferson Company, or against any Asset,
employee benefit plan, interest, or right of any of them, that is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on Jefferson, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding
against any Jefferson Company, that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
Jefferson.
(b) Section 5.15(b) of the Jefferson Disclosure
Memorandum includes a summary report of all Litigation as of the date of
this Agreement to which any Jefferson Company is a party and which names
a Jefferson Company as a defendant or cross-defendant.
5.16 REPORTS. Since January 1, 1995, or the date of
-------
organization if later, each Jefferson Company has timely filed all
reports and statements, together with any amendments required to be made
with respect thereto, that it was required to file with any Regulatory
Authorities, except failures to file which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
Jefferson. As of their respective dates, each of such reports and
documents, including the financial statements, exhibits, and schedules
thereto, complied in all Material respects with all applicable Laws.
5.17 STATEMENTS TRUE AND CORRECT. None of the
---------------------------
information supplied or to be supplied by any Jefferson Company
regarding Jefferson for inclusion in the Registration Statement to be
filed by UPC with the SEC will, when the Registration Statement becomes
effective, be false or misleading with respect to any Material fact, or
contain any untrue statement of a Material fact, or omit to state any
Material fact required to be stated thereunder or necessary to make the
statements therein not misleading. None of the information supplied or
to be supplied by any Jefferson Company for inclusion in the Proxy
Statement to be mailed to Jefferson's stockholders in connection with
the Stockholders' Meeting will, when first mailed to the stockholders of
Jefferson, be false or misleading with respect to any Material fact, or
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, or, in the case of the Proxy Statement or any
amendment thereof or supplement thereto, at the time of the
Stockholders' Meeting, be false or misleading with respect to any
Material fact, or omit to state any Material fact required to be stated
thereunder or necessary to correct any Material statement in any earlier
communication with respect to the solicitation of any proxy for the
Stockholders' Meeting. All documents that any Jefferson Company is
responsible for filing with any Regulatory Authority in connection with
the transactions contemplated hereby will comply as to form in all
Material respects with the provisions of applicable Law.
5.18 TAX AND REGULATORY MATTERS. No Jefferson Company or
--------------------------
any Affiliate thereof has taken or agreed to take any action, and
Jefferson has no Knowledge of any fact or
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circumstance that is reasonably likely to (i) prevent the transactions
contemplated hereby, including the Merger, from being treated as a
reorganization within the meaning of Section 368(a) of the Internal
Revenue Code or (ii) materially impede or delay receipt of any Consents
of Regulatory Authorities referred to in Section 9.1(b) of this
Agreement or result in the imposition of a condition or restriction of
the type referred to in the last sentence of such Section.
5.19 STATE TAKEOVER LAWS. Each Jefferson Company has
-------------------
taken all necessary action to exempt the transactions contemplated by
this Agreement and the Plan of Merger from any applicable "moratorium,"
"control share," "fair price," "business combination," or other anti-
takeover laws and regulations, including Section 203 of the DGCL, of the
State of Delaware (collectively, "Takeover Laws").
5.20 CHARTER PROVISIONS. Each Jefferson Company has
------------------
taken all action so that the entering into of this Agreement and the
Plan of Merger and the consummation of the Merger and the other
transactions contemplated by this Agreement and the Plan of Merger do
not and will not result in the grant of any rights to any Person under
the Certificate of Incorporation, Bylaws, or other governing instruments
of any Jefferson Company or restrict or impair the ability of UPC or any
of its Subsidiaries to vote, or otherwise to exercise the rights of a
stockholder with respect to, shares of any Jefferson Company that may be
directly or indirectly acquired or controlled by it.
5.21 RIGHTS AGREEMENT. Jefferson has taken all necessary
----------------
action (including, if required, redeeming all of the outstanding
Preferred Stock Purchase Rights or amending or terminating the Jefferson
Rights Agreement) so that the entering into of this Agreement and the
Plan of Merger, the acquisition of shares pursuant to, or other exercise
of rights under, the Stock Option Agreement and consummation of the
Merger and the other transactions contemplated hereby and thereby do not
and will not result in any Person becoming able to exercise any
Preferred Stock Purchase Rights under the Jefferson Rights Agreement or
enabling or requiring the Preferred Stock Purchase Rights to be
separated from the shares of Jefferson Common Stock to which they are
attached or to be triggered or to become exercisable.
5.22 DERIVATIVES. All interest rate swaps, caps, floors,
-----------
option agreements, futures and forward contracts, and other similar risk
management arrangements, whether entered into for Jefferson's own
account, or for the account of one or more the Jefferson Subsidiaries or
their customers, were entered into (i) in accordance with prudent
business practices and all applicable Laws and (ii) with counterparties
believed to be financially responsible.
5.23 OPINION OF FINANCIAL ADVISOR. Jefferson has received the
----------------------------
verbal opinion of its financial advisor, Sandler O'Neill & Partners,
L.P., to the effect that the Exchange Ratio is fair, from the financial
point of view, to the holders of Jefferson Common Stock, and a signed
copy thereof, dated as of the date of this Agreement, will be delivered
to UPC within five business days of the date of this Agreement.
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<PAGE>
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF UPC
-------------------------------------
UPC hereby represents and warrants to Jefferson as follows:
6.1 ORGANIZATION, STANDING, AND POWER. UPC is a
---------------------------------
corporation duly organized, validly existing, and in good standing under
the Laws of the State of Tennessee, and has the corporate power and
authority to carry on its business as now conducted and to own, lease,
and operate its Material Assets. UPC 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 UPC.
6.2 AUTHORITY; NO BREACH BY AGREEMENT.
---------------------------------
(a) UPC 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 UPC. This Agreement
represents a legal, valid, and binding obligation of UPC, enforceable
against UPC in accordance with its terms (except in all cases as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, 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 UPC, nor the consummation by UPC of the transactions
contemplated hereby, nor compliance by UPC with any of the provisions
hereof, will (i) conflict with or result in a breach of any provision of
UPC's Restated Charter or Bylaws, (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 UPC Company under, any Contract or Permit
of any UPC 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 UPC, or (iii) subject to receipt
of the requisite Consents referred to in Section 9.1(b) of this
Agreement, violate any Law or Order applicable to any UPC Company or any
of their respective 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 NYSE, 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
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 UPC, no notice to, filing with,
or Consent of, any
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<PAGE>
public body or authority is necessary for the consummation by UPC of the
Merger and the other transactions contemplated in this Agreement.
6.3 CAPITAL STOCK. The authorized capital stock of UPC
-------------
consists of (i) 300,000,000 shares of UPC Common Stock, of which
134,740,096 shares were issued and outstanding as of June 30, 2000 and
(ii) 10,000,000 shares of UPC Preferred Stock, of which 799,633 shares
of UPC Series E Preferred Stock were issued and outstanding as of June
30, 2000. All of the issued and outstanding shares of UPC Capital Stock
are, and all of the shares of UPC Common Stock to be issued in exchange
for shares of Jefferson Common Stock upon consummation of the Merger
when issued in accordance with the terms of this Agreement, will be,
duly and validly issued and outstanding and fully paid and nonassessable
under the TBCA. None of the outstanding shares of UPC Capital Stock has
been, and none of the shares of UPC Common Stock to be issued in
exchange for shares of Jefferson Common Stock upon consummation of the
Merger will be, issued in violation of any preemptive rights of the
current or past stockholders of UPC.
6.4 UPC SUBSIDIARIES. UPC or one of its Subsidiaries
----------------
owns all of the issued and outstanding shares of capital stock of each
UPC Subsidiary. No equity securities of any UPC Subsidiary are or may
become required to be issued (other than to another UPC Company) by
reason of any Rights, and there are no Contracts by which any UPC
Subsidiary is bound to issue (other than to another UPC Company)
additional shares of its capital stock or Rights or by which any UPC
Company is or may be bound to transfer any shares of the capital stock
of any UPC Subsidiary (other than to another UPC Company). There are no
Contracts relating to the rights of any UPC Company to vote or to
dispose of any shares of the capital stock of any UPC Subsidiary. All
of the shares of capital stock of each UPC Subsidiary held by a UPC
Company are fully paid and, except as provided in statutes pursuant to
which depository institution Subsidiaries are organized, nonassessable
under the applicable corporation Law of the jurisdiction in which such
Subsidiary is incorporated or organized and are owned by the UPC Company
free and clear of any Lien. Each UPC Subsidiary is either a bank or a
corporation, and is duly organized, validly existing, and (as to
corporations) in good standing under the Laws of the jurisdiction in
which it is incorporated or organized, and has the corporate power and
authority necessary for it to own, lease, and operate its Assets and to
carry on its business as now conducted. Each UPC Subsidiary 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 UPC. Each UPC Subsidiary that is a
depository institution is an "insured depository institution" as defined
in the Federal Deposit Insurance Act and applicable regulations
thereunder, and the deposits in which are insured by the Bank Insurance
Fund or Savings Association Insurance Fund.
6.5 SEC FILINGS; FINANCIAL STATEMENTS.
---------------------------------
(a) UPC has filed and made available to Jefferson
all forms, reports, and documents required to be filed by UPC with the
SEC since December 31, 1994 (collectively, the
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<PAGE>
"UPC SEC Reports"). The UPC SEC Reports (i) at the time filed, complied
in all Material respects with the applicable requirements of the 1933
Act and the 1934 Act, as the case may be and (ii) did not at the time
they were filed (or if amended or superseded by a filing prior to the
date of this Agreement, then on the date of such filing) contain any
untrue statement of a Material fact or omit to state a Material fact
required to be stated in such UPC SEC Reports or necessary in order to
make the statements in such UPC SEC Reports, in light of the
circumstances under which they were made, not misleading. Except for
UPC Subsidiaries that are registered as a broker, dealer, or investment
advisor or filings required due to fiduciary holdings of the UPC
Subsidiaries, none of UPC Subsidiaries is required to file any forms,
reports, or other documents with the SEC.
(b) Each of the UPC Financial Statements (including,
in each case, any related notes) contained in the UPC SEC Reports,
including any UPC SEC Reports filed after the date of this Agreement
until the Effective Time, complied or will comply as to form in all
Material respects with the applicable published rules and regulations of
the SEC with respect thereto, was or will be prepared in accordance with
GAAP (except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by Form
10-Q of the SEC), and fairly presented or will fairly present the
consolidated financial position of UPC and its Subsidiaries as at the
respective dates and the consolidated results of its operations and cash
flows for the periods indicated, except that the unaudited interim
financial statements were or are subject to normal and recurring year-
end adjustments which were not or are not expected to be Material in
amount or effect.
6.6 ABSENCE OF UNDISCLOSED LIABILITIES. No UPC Company
----------------------------------
has any Liabilities that are reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on UPC, except Liabilities
which are accrued or reserved against in the consolidated balance sheets
of UPC as of June 30, 2000, included in the UPC Financial Statements or
reflected in the notes thereto and except for Liabilities incurred in
the ordinary course of business subsequent to June 30, 2000. No UPC
Company has incurred or paid any Liability since June 30, 2000, except
for such Liabilities incurred or paid in the ordinary course of business
consistent with past business practice and which are not reasonably
likely to have, individually or in the aggregate, a Material Adverse
Effect on UPC.
6.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since June
------------------------------------
30, 2000, except as disclosed in the UPC Financial Statements delivered
prior to the date of this Agreement, (i) there have been no events,
changes or occurrences which have had, or are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC and
(ii) the UPC Companies have conducted their respective businesses in the
ordinary and usual course (excluding the incurrence of expenses in
connection with this Agreement and the transactions contemplated
hereby).
6.8 TAX MATTERS.
-----------
(a) All Tax Returns required to be filed by or on
behalf of any of the UPC Companies have been timely filed, or requests
for extensions have been timely filed, granted, and have not expired for
periods ended on or before December 31, 1999, and, to the Knowledge
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<PAGE>
of UPC, all Tax Returns filed are complete and accurate in all Material
respects. All Tax Returns for periods ending on or before the date of
the most recent fiscal year end immediately preceding the Effective Time
will be timely filed or requests for extensions will be timely filed.
All Taxes shown on filed Tax Returns have been paid. There is no audit
examination, deficiency, or refund Litigation with respect to any Taxes,
that is reasonably likely to result in a determination that would have,
individually or in the aggregate, a Material Adverse Effect on UPC,
except to the extent reserved against in the UPC Financial Statements
dated prior to the date of this Agreement. All Taxes and other
Liabilities due with respect to completed and settled examinations or
concluded Litigation have been paid.
(b) None of the UPC Companies has executed an
extension or waiver of any statute of limitations on the assessment or
collection of any Tax due (excluding such statutes that relate to years
currently under examination by the Internal Revenue Service or other
applicable taxing authorities) that is currently in effect.
(c) Adequate provision for any Taxes due or to
become due for any of the UPC Companies for the period or periods
through and including the date of the respective UPC Financial
Statements has been made and is reflected on such UPC Financial
Statements.
(d) Each of the UPC Companies is in compliance with,
and its records contain all information and documents (including
properly completed IRS Forms W-9) necessary to comply with, all
applicable information reporting and Tax withholding requirements under
federal, state, and local Tax Laws, and such records identify with
specificity all accounts subject to backup withholding under
Section 3406 of the Internal Revenue Code, except for such instances of
noncompliance and such omissions as are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC.
(e) None of the UPC Companies has made any payments,
is obligated to make any payments, or is a party to any contract,
agreement, or other arrangement that could obligate it to make any
payments that would be disallowed as a deduction under Section 280G or
162(m) of the Internal Revenue Code.
(f) There are no Material Liens with respect to
Taxes upon any of the Assets of the UPC Companies.
(g) No UPC Company has filed any consent under
Section 341(f) of the Internal Revenue Code concerning collapsible
corporations.
(h) There has not been an ownership change, as
defined in Internal Revenue Code Section 382(g), of the UPC Companies
that occurred during or after any Taxable Period in which the UPC
Companies incurred a net operating loss that carries over to any Taxable
Period ending after December 31, 1998.
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<PAGE>
6.9 ENVIRONMENTAL MATTERS.
---------------------
(a) To the Knowledge of UPC, each UPC Company, its
Participation Facilities, and its Loan Properties are, and have been, in
compliance with all Environmental Laws, except those violations which
are not reasonably likely to have, individually or in the aggregate, a
Material Adverse Effect on UPC.
(b) There is no Litigation pending or, to the
Knowledge of UPC, threatened before any court, governmental agency, or
authority, or other forum in which any UPC Company or any of its
Participation Facilities has been or, with respect to threatened
Litigation, may reasonably be expected to be named as a defendant (i)
for alleged noncompliance (including by an predecessor) with any
Environmental Law or (ii) relating to the release into the environment
of any Hazardous Material, whether or not occurring at, on, under, or
involving a site owned, leased, or operated by any UPC Company or any of
its Participation Facilities, except for such Litigation pending or
threatened that is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPC.
(c) There is no Litigation pending or, to the
Knowledge of UPC threatened before any court, governmental agency, or
board, or other form in which any of its Loan Properties (or UPC in
respect of such Loan Property) has been or, with respect to threatened
Litigation, may reasonably be expected to be named as a defendant or
potentially responsible party (i) for alleged noncompliance (including
by any predecessor) with any Environmental Law or (ii) relating to the
release into the environment of any Hazardous Material, whether or not
occurring at, on, under, or involving a Loan Property, except for such
Litigation pending or threatened that is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC.
(d) To the Knowledge of UPC, there is no reasonable
basis for any Litigation of a type described in subsections (b) or (c),
except such as is not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPC.
(e) To the Knowledge of UPC, during the period of
(i) any UPC Company's ownership or operation of any of their respective
current properties, (ii) any UPC Company's participation in the
management of any Participation Facility, or (iii) any UPC Company's
holding of a security interest in a Loan Property, there have been no
releases of Hazardous Material in, on, under, or affecting (or
potentially affecting) such properties, except such as are not
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on UPC. To the Knowledge of UPC, prior to the period of
(i) any UPC Company's ownership or operation of any of their respective
current properties, (ii) any UPC Company's participation in the
management of any Participation Facility, or (iii) any UPC Company's
holding of a security interest in a Loan Property, to the Knowledge of
UPC, there were no releases of Hazardous Material in, on, under, or
affecting any such property, Participation Facility, or Loan Property,
except such as are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPC.
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<PAGE>
6.10 COMPLIANCE WITH LAWS. UPC is duly registered as a
--------------------
bank holding company under the BHC Act. Each UPC Company has in effect
all Permits necessary for it to own, lease, or operate its Material
Assets and to carry on its business as now conducted, except for those
Permits the absence of which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC, and
there has occurred no Default under any such Permit, other than Defaults
which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPC. None of the UPC Companies:
(a) is in violation of any Laws, Orders, or Permits
applicable to its business or employees conducting its business,
except for violations which are not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
UPC; and
(b) has received any notification or communication from
any agency or department of federal, state, or local government or
any Regulatory Authority or the staff thereof (i) asserting that
any UPC Company is not in compliance with any of the Laws or
Orders which such governmental authority or Regulatory Authority
enforces, where such noncompliance is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on
UPC, (ii) threatening to revoke any Permits, the revocation of
which is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on UPC, or (iii) requiring
any UPC Company (x) to enter into or consent to the issuance of a
cease and desist order, formal agreement, directive, commitment,
or memorandum of understanding, or (y) to adopt any Board
resolution or similar undertaking, which restricts materially the
conduct of its business, or in any manner relates to its capital
adequacy, its credit or reserve policies, its management, or the
payment of dividends.
6.11 LEGAL PROCEEDINGS. There is no Litigation
-----------------
instituted or pending, or, to the Knowledge of UPC, threatened (or
unasserted but considered probable of assertion and which if asserted
would have at least a reasonable probability of an unfavorable outcome
to any UPC Company) against any UPC Company, or against any Asset,
employee benefit plan, interest, or right of any of them, that is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on UPC, nor are there any Orders of any Regulatory
Authorities, other governmental authorities, or arbitrators outstanding
against any UPC Company, that are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on UPC.
6.12 REPORTS. Since January 1, 1995, or the date of
-------
organization if later, each UPC Company has timely filed all reports and
statements, together with any amendments required to be made with
respect thereto, that it was required to file with any Regulatory
Authorities, except failures to file which are not reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on
UPC. As of their respective dates, each of such reports and documents,
including the financial statements, exhibits, and schedules thereto,
complied in all Material respects with all applicable Laws.
6.13 STATEMENTS TRUE AND CORRECT. None of the information
---------------------------
supplied or to be supplied by any UPC Company regarding UPC for
inclusion in the Registration Statement to be filed by UPC with the
SEC will, when the Registration Statement becomes effective, be false or
misleading with respect to any Material fact, or contain any untrue
statement of a Material fact,
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<PAGE>
or omit to state any Material fact required to be stated thereunder or
necessary to make the statements therein not misleading. None of the
information supplied or to be supplied by any UPC Company for inclusion
in the Proxy Statement to be mailed to Jefferson's stockholders in
connection with the Stockholders' Meeting, will, when first mailed to
the stockholders of Jefferson, be false or misleading with respect to
any Material fact, or 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, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto, at the time of
the Stockholders' Meeting, be false or misleading with respect to any
Material fact, or omit to state any Material fact required to be stated
thereunder or necessary to correct any Material statement in any earlier
communication with respect to the solicitation of any proxy for the
Stockholders' Meeting. All documents that any UPC Company is
responsible for filing with any Regulatory Authority in connection with
the transactions contemplated hereby will comply as to form in all
Material respects with the provisions of applicable Law.
6.14 TAX AND REGULATORY MATTERS. No UPC Company or any
--------------------------
Affiliate thereof has taken or agreed to take any action, and UPC has no
Knowledge of any fact or circumstance that is reasonably likely to
(i) prevent the transactions contemplated hereby, including the Merger,
from qualifying for as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code or (ii) materially impede or delay
receipt of any Consents of Regulatory Authorities referred to in Section
9.1(b) of this Agreement or result in the imposition of a condition or
restriction of the type referred to in the last sentence of such
Section.
6.15 EMPLOYEE BENEFIT PLANS. All UPC Plans are in
----------------------
compliance with the applicable terms of ERISA, the Internal Revenue
Code, and any other applicable Laws, the breach or violation of which is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on UPC. For purposes of this Agreement, the term "UPC
Plan" means each bonus, incentive compensation, severance pay, medical
or other insurance program, retirement plan, or other employee benefit
plan program, agreement, or arrangement sponsored, maintained, or
contributed to by UPC or any trade or business, whether or not
incorporated, that together with UPC or any of its Subsidiaries would be
deemed a "single employer" under Section 4001 of ERISA or Section 414 of
the Internal Revenue Code (a "UPC ERISA Affiliate") or under which UPC
or any UPC ERISA Affiliate has any Liability or obligation. No
Liability under Title IV of ERISA has been incurred by UPC or any UPC
ERISA Affiliate that has not been satisfied in full, and no condition
exists that presents a Material risk to UPC or any UPC ERISA Affiliate
of incurring any such Liability. With respect to any UPC Plan that is
subject to Title IV of ERISA, full payment has been made, or will be
made in accordance with Section 404(a)(6) of the Internal Revenue Code,
of all amounts that UPC or any UPC ERISA Affiliate is required to pay
under Section 412 of the Internal Revenue Code or under the terms of the
UPC Plans, and no accumulated funding deficiency (within the meaning of
Section 412 of the Internal Revenue Code or Section 302 of ERISA,
whether or not waived) exists with respect to any UPC Plan. There are
no Material actions, suits, or claims pending, or, to the Knowledge of
UPC, threatened or anticipated relating to any UPC Plan. There has been
no Material adverse change in the financial position or funded status of
any UPC Plan that is subject to Title IV of ERISA since the date of the
information relating to the financial position and funded status of each
such plan contained in the most recent Annual Report on Form 10-K filed
by UPC with SEC.
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6.16 DERIVATIVES. All interest rate swaps, caps,
------------
floors, option agreements, futures and forward contracts, and other
similar risk management arrangements, whether entered into for UPC's own
account, or for the account of one or more the UPC Subsidiaries or their
customers, were entered into (i) in accordance with prudent business
practices and all applicable Laws and (ii) with counterparties believed
to be financially responsible.
ARTICLE 7
CONDUCT OF BUSINESS PENDING CONSUMMATION
----------------------------------------
7.1 AFFIRMATIVE COVENANTS OF BOTH PARTIES. From the
-------------------------------------
date of this Agreement until the earlier of the Effective Time or the
termination of this Agreement, unless the prior written consent of the
other Party shall have been obtained, and except as otherwise expressly
contemplated herein, each Party shall and shall cause each of its
Subsidiaries to (i) operate its business only in the usual, regular, and
ordinary course, (ii) preserve intact its business organization and
Assets and maintain its rights and franchises, (iii) use its reasonable
efforts to maintain its current employee relationships, and (iv) take no
action which would (a) adversely affect the ability of any Party to
obtain any Consents required for the transactions contemplated hereby
without imposition of a condition or restriction of the type referred to
in the last sentence of Section 9.1(b) of this Agreement, or
(b) adversely affect the ability of any Party to perform its covenants
and agreements under this Agreement; provided that in the case of UPC,
the provisions of this Section 7.1 (other than the provisions of
clause (iv) above) shall not be deemed to preclude UPC from continuing
to implement its program of acquiring unaffiliated depository and
nondepository institutions.
7.2 NEGATIVE COVENANTS OF JEFFERSON. From the date of
-------------------------------
this Agreement until the earlier of the Effective Time or the
termination of this Agreement, Jefferson covenants and agrees that it
will not do or agree or commit to do, or permit any of its Subsidiaries
to do or agree or commit to do, any of the following without the prior
written consent of the chief executive officer or chief financial
officer of UPC, which consent shall not be unreasonably withheld:
(a) amend the Certificate of Incorporation, Bylaws, or
other governing instruments of any Jefferson Company or, except as
expressly contemplated by this Agreement, the Jefferson Rights
Agreement, or
(b) incur, guarantee, or otherwise become responsible for,
any additional debt obligation or other obligation for borrowed
money (other than indebtedness of a Jefferson Company to another
Jefferson Company) in excess of an aggregate of $250,000 (for the
Jefferson Companies on a consolidated basis), except in the
ordinary course of the business consistent with past practices
(which shall include, for Jefferson Subsidiaries that are
depository institutions, creation of deposit liabilities,
purchases of federal funds, advances from the Federal Reserve Bank
or Federal Home Loan Bank, and entry into repurchase agreements
fully secured by U.S. government or agency securities), or impose,
or suffer the imposition, on any Asset of any Jefferson Company of
any Lien or permit any such Lien to exist (other than in
connection with deposits, repurchase agreements, bankers
acceptances,
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"treasury tax and loan" accounts established in the ordinary
course of business, the satisfaction of legal requirements in the
exercise of trust powers, and Liens in effect as of the date
hereof that are disclosed in the Jefferson Disclosure Memorandum
or the Jefferson Financial Statements); or
(c) repurchase, redeem, or otherwise acquire or exchange
(other than exchanges in the ordinary course under employee
benefit plans), directly or indirectly, any shares, or any
securities convertible into any shares, of the capital stock of
any Jefferson Company, or declare or pay any dividend or make any
other distribution in respect of Jefferson's capital stock,
provided that Jefferson may (to the extent legally and
contractually permitted to do so), but shall not be obligated to,
declare and pay regular quarterly cash dividends on the shares of
Jefferson Common Stock at a rate of $0.07 per share (with usual
and regular record and payment dates in accordance with past
practice as disclosed in Section 7.2(c) of the Jefferson
Disclosure Memorandum and such dates may not be changed without
the prior written consent of UPC; provided, that, notwithstanding
the provisions of Section 1.3 of this Agreement, the Parties shall
cooperate in selecting the Effective Time to ensure that, with
respect to the quarterly period in which the Effective Time
occurs, the holders of Jefferson Common Stock do not receive both
a dividend in respect of their Jefferson Common Stock and a
dividend in respect of UPC Common Stock or fail to receive any
dividend; or
(d) except for this Agreement, or pursuant to the Stock
Option Agreement or pursuant to the exercise of Jefferson Rights
outstanding as of the date of this Agreement and pursuant to the
terms thereof in existence on the date of this Agreement, issue,
sell, pledge, encumber, authorize the issuance of, enter into any
Contract to issue, sell, pledge, encumber, or authorize the
issuance of, or otherwise permit to become outstanding, any
additional shares of Jefferson Common Stock or any other capital
stock of any Jefferson Company, or any stock appreciation rights,
or any option, warrant, conversion, or other right to acquire any
such stock, or any security convertible into any such stock; or
(e) adjust, split, combine, or reclassify any capital
stock of any Jefferson Company or issue or authorize the issuance
of any other securities in respect of or in substitution for
shares of Jefferson Common Stock, or sell, lease, mortgage, or
otherwise dispose of or otherwise encumber (i) any shares of
capital stock of any Jefferson Subsidiary (unless any such shares
of stock are sold or otherwise transferred to another Jefferson
Company) or (ii) any Asset having a book value in excess of
$250,000 other than in the ordinary course of business for
reasonable and adequate consideration; or
(f) except for purchases of investment securities acquired
in the ordinary course of business consistent with past practice,
purchase any securities or make any Material investment, either by
purchase of stock or securities, contributions to capital, Asset
transfers, or purchase of any Assets, in any Person other than a
wholly-owned Jefferson Subsidiary, or otherwise acquire direct or
indirect control over any Person, other than in connection with
(i) foreclosures in the ordinary course of business,
(ii) acquisitions of control by a depository institution
Subsidiary in its fiduciary capacity, or (iii) the creation
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<PAGE>
of new wholly-owned Subsidiaries organized to conduct or continue
activities otherwise permitted by this Agreement; or
(g) grant any increase in compensation or benefits to the
employees or officers of any Jefferson Company, except in
accordance with the ordinary course of business consistent with
past practice or as required by Law; pay any severance or
termination pay or any bonus other than pursuant to written
policies or written Contracts in effect on the date of this
Agreement; enter into or amend any severance agreements with
officers of any Jefferson Company; grant any Material increase in
fees or other increases in compensation or other benefits to
directors of any Jefferson Company except in accordance with the
ordinary course of business consistent with past practice; or
voluntarily accelerate the vesting of any stock options or other
stock-based compensation or employee benefits; or
(h) enter into or amend any employment Contract between
any Jefferson Company and any Person (unless such amendment is
required by Law or a pre-existing contractual obligation) that the
Jefferson Company does not have the unconditional right to
terminate without Liability (other than Liability for services
already rendered), at any time on or after the Effective Time; or
(i) adopt any new employee benefit plan of any Jefferson
Company or make any Material change in or to any existing employee
benefit plans of any Jefferson Company other than any such change
that is required by Law or that, in the opinion of counsel, is
necessary or advisable to maintain the tax qualified status of any
such plan or that is contemplated by the Supplemental Letter or
this Agreement; or
(j) make any significant change in any Tax or accounting
methods or systems of internal accounting controls, except as may
be appropriate to conform to changes in Tax Laws or regulatory
accounting requirements or GAAP or as may be required under this
Agreement; or
(k) commence any Litigation other than as necessary for
the prudent operation of its business or settle any Litigation
involving any Liability of any Jefferson Company for Material
money damages or restrictions upon the operations of any Jefferson
Company; or
(l) except in the ordinary course of business, modify,
amend, or terminate any Material Contract or waive, release,
compromise, or assign any Material rights or claims.
7.3 ADVERSE CHANGES IN CONDITION. Each Party agrees to
----------------------------
give written notice promptly to the other Party upon becoming aware of
the occurrence or impending occurrence of any event or circumstance
relating to it or any of its Subsidiaries which (i) is reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on
it or (ii) would cause or constitute a Material breach of any of its
representations, warranties, or covenants contained herein, and to use
its reasonable efforts to prevent or promptly to remedy the same.
7.4 REPORTS. Each Party and its Subsidiaries shall file
-------
all reports required to be filed by it with Regulatory Authorities
between the date of this Agreement and the Effective
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<PAGE>
Time and shall deliver to the other Party copies of all such reports
promptly after the same are filed. If financial statements are
contained in any such reports filed with the SEC, such financial
statements will fairly present the consolidated financial position of
the entity filing such statements as of the dates indicated and the
consolidated results of operations, changes in stockholders' equity, and
cash flows for the periods then ended in accordance with GAAP (subject
in the case of interim financial statements to normal recurring year-end
adjustments that are not Material). As of their respective dates, such
reports filed with the SEC will comply in all Material respects with the
Securities Laws and will not contain any untrue statement of a Material
fact or omit to state a Material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Any financial
statements contained in any other reports to another Regulatory
Authority shall be prepared in accordance with Laws applicable to such
reports.
ARTICLE 8
ADDITIONAL AGREEMENTS
---------------------
8.1 REGISTRATION STATEMENT; PROXY STATEMENT; STOCKHOLDER
-----------------------------------------------------
APPROVAL. As soon as reasonably practicable after execution of this
--------
Agreement, UPC shall file the Registration Statement with the SEC, and
shall use its reasonable efforts to cause the Registration Statement to
become effective under the 1933 Act and take any action required to be
taken under the applicable state Blue Sky or securities Laws in
connection with the issuance of the shares of UPC Common Stock upon
consummation of the Merger. Jefferson shall furnish all information
concerning it and the holders of its capital stock as UPC may reasonably
request in connection with such action. Jefferson shall call a
Stockholders' Meeting, to be held as soon as reasonably practicable
after the Registration Statement is declared effective by the SEC, for
the purpose of voting upon approval of (i) this Agreement and the Plan
of Merger and (ii) such other related matters as it deems appropriate.
In connection with the Stockholders' Meeting, (i) UPC and Jefferson
shall prepare and, to the extent required by the Securities Laws, file
with the SEC a Proxy Statement and mail such Proxy Statement to the
Jefferson stockholders, (ii) the Parties shall furnish to each other all
information concerning them that they may reasonably request in
connection with such Proxy Statement, (iii) the Board of Directors of
Jefferson shall recommend to its stockholders the approval of the
matters submitted for approval, and (iv) the Board of Directors of
Jefferson shall use their reasonable efforts to obtain such
stockholders' approval, provided that Jefferson may withdraw, modify, or
change in an adverse manner to UPC its recommendations if the Board of
Directors of Jefferson, after having consulted with and based upon the
advice of outside counsel, determines in good faith that the failure to
so withdraw, modify, or change its recommendation could reasonably
constitute a breach of the fiduciary duties of Jefferson's Board of
Directors under applicable Law. In addition, nothing in this Section
8.1 or elsewhere in this Agreement shall prohibit accurate disclosure by
Jefferson of information that is required to be disclosed in the
Registration Statement or the Proxy Statement or in any other document
required to be filed with the SEC (including, without limitation, a
Solicitation/Recommendation Statement on Schedule 14D-9) or otherwise
required to be publicly disclosed by applicable Law or regulations or
rules of the NYSE or NASD.
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8.2 EXCHANGE LISTING. UPC shall use its reasonable
----------------
efforts to list, prior to the Effective Time, on the NYSE, subject to
official notice of issuance, the shares of UPC Common Stock to be issued
to the holders of Jefferson Common Stock pursuant to the Merger.
8.3 APPLICATIONS. As soon as reasonably practicable
------------
after execution of this Agreement, UPC shall prepare and file, and
Jefferson shall cooperate in the preparation and, where appropriate,
filing of, applications with all Regulatory Authorities having
jurisdiction over the transactions contemplated by this Agreement
seeking the requisite Consents necessary to consummate the transactions
contemplated by this Agreement. To the extent required by the HSR Act,
each of the Parties will promptly file with the United States Federal
Trade Commission and the United States Department of Justice the
notification and report form required for the transactions contemplated
hereby and any supplemental or additional information which may
reasonably be requested in connection therewith pursuant to the HSR Act
and will comply in all material respects with the requirements of the
HSR Act.
8.4 FILINGS WITH STATE OFFICES. Upon the terms and
--------------------------
subject to the conditions of this Agreement, UPC shall cause UPHC to
execute and file the Certificate of Merger with the Secretary of State
of the State of Delaware and the Articles of Merger with the Secretary
of State of the State of Tennessee.
8.5 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 reasonably practicable after
the date of this Agreement, the transactions contemplated by this
Agreement, including, without limitation, 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.
8.6 INVESTIGATION AND CONFIDENTIALITY.
---------------------------------
(a) Prior to the Effective Time, each Party shall
keep the other Party advised of all Material developments relevant to
its business and to consummation of the Merger and shall permit the
other Party to make or cause to be made such investigation of the
business and properties of it and its Subsidiaries and of their
respective financial and legal conditions as the other Party reasonably
requests, provided that such investigation shall be reasonably related
to the transactions contemplated hereby and shall not interfere
unnecessarily with normal operations. No investigation by a Party shall
affect the representations and warranties of the other Party.
(b) Each Party shall, and shall cause its advisers
and agents to, maintain the confidentiality of all confidential
information furnished to it by the other Party concerning its and
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its Subsidiaries' businesses, operations, and financial positions and
shall not use such information for any purpose except in furtherance of
the transactions contemplated by this Agreement. If this Agreement is
terminated prior to the Effective Time, each Party shall promptly return
or certify the destruction of all documents and copies thereof, and all
work papers containing confidential information received from the other
Party.
(c) Each Party agrees to give the other Party notice
as soon as practicable after any determination by it of any fact or
occurrence relating to the other Party which it has discovered through
the course of its investigation and which represents, or is reasonably
likely to represent, either a Material breach of any representation,
warranty, covenant, or agreement of the other Party or which has had or
is reasonably likely to have a Material Adverse Effect on the other
Party.
(d) Neither Party nor any of their respective
Subsidiaries shall be required to provide access to or to disclose
information where such access or disclosure would violate or prejudice
the rights of its customers, jeopardize the attorney-client or similar
privilege with respect to such information or contravene any Law, rule,
regulation, Order, judgment, decree, fiduciary duty, or agreement
entered into prior to the date of this Agreement. The Parties will use
their reasonable efforts to make appropriate substitute disclosure
arrangements, to the extent practicable, in circumstances in which the
restrictions of the preceding sentence apply.
8.7 PRESS RELEASES. Prior to the Effective Time, UPC
--------------
and Jefferson shall consult with each other as to the form and substance
of any press release or other public disclosure materially related to
this Agreement or any other transaction contemplated hereby; provided,
that nothing in this Section 8.7 shall be deemed to prohibit any Party
from making any disclosure which its counsel deems necessary or
advisable in order to satisfy such Party's disclosure obligations
imposed by Law (provided such Party shall give advance notice of such
disclosure to the other Party to the extent practicable).
8.8 CERTAIN ACTIONS. Except with respect to this
---------------
Agreement and the Plan of Merger and the transactions contemplated
hereby and thereby, no Jefferson Company nor any Affiliate thereof nor
any Representative thereof retained by any Jefferson Company shall,
directly or indirectly, initiate, solicit, encourage, or knowingly
facilitate (including by way of furnishing information) any inquiries or
the making of any Acquisition Proposal. Notwithstanding anything herein
to the contrary, Jefferson and its Board of Directors shall be permitted
(i) to the extent applicable, to comply with Rule 14d-9 and Rule 14e-2
promulgated under the 1934 Act with regard to an Acquisition Proposal,
(ii) to engage in any discussions or negotiations with, or provide any
information to, any Person in response to an unsolicited bona fide
written Acquisition Proposal by any such Person, if and only to the
extent that (a) Jefferson's Board of Directors concludes in good faith
and consistent with its fiduciary duties to Jefferson's stockholders
under applicable Law that such Acquisition Proposal could reasonably be
expected to result in a Superior Proposal, (b) prior to providing any
information or data to any Person in connection with an Acquisition
Proposal by any such Person, Jefferson's Board of Directors receives
from such Person an executed confidentiality agreement containing
confidentiality terms at least as stringent as those contained in the
Confidentiality Agreement, and (c) prior to providing any information or
data to any Person or entering into discussions or negotiations with
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<PAGE>
any Person, Jefferson's Board of Directors notifies UPC promptly of such
inquiries, proposals, or offers received by, any such information
requested from, or any such discussions or negotiations sought to be
initiated or continued with, any of its Representatives indicating, in
connection with such notice, the name of such Person and the material
terms and conditions of any inquiries, proposals or offers. Jefferson
agrees that it will promptly keep UPC informed of the status and terms
of any such proposals or offers and the status and terms of any such
discussions or negotiations. Jefferson agrees that it will, and will
cause its officers, directors, and Representatives to, immediately cease
and cause to be terminated any activities, discussions, or negotiations
existing as of the date of this Agreement with any parties conducted
heretofore with respect to any Acquisition Proposal. Jefferson agrees
that it will use reasonable best efforts to promptly inform its
directors, officers, key employees, agents, and Representatives of the
obligations undertaken in this Section 8.8. Nothing in this Section 8.8
shall (i) permit Jefferson to terminate this Agreement (except as
specifically provided in Article 10) or (ii) affect any other obligation
of UPC or Jefferson under this Agreement.
8.9 TAX TREATMENT. Each of the Parties undertakes and
-------------
agrees to use its reasonable efforts to cause the Merger, and to take no
action before or after the Effective Time which would cause the Merger
not, to be treated as a "reorganization" within the meaning of Section
368(a) of the Internal Revenue Code for federal income tax purposes.
8.10 STATE TAKEOVER LAWS. Each Jefferson Company shall
-------------------
take all necessary steps to exempt the transactions contemplated by this
Agreement and the Plan of Merger from, or if necessary challenge the
validity or applicability of, any applicable Takeover Laws.
8.11 CHARTER PROVISIONS. Each Jefferson Company shall
------------------
take all necessary action to ensure that the entering into of this
Agreement and the Plan of Merger and the consummation of the Merger and
the other transactions contemplated hereby and thereby do not and will
not result in the grant of any rights to any Person under the
Certificate of Incorporation, Bylaws, or other governing instruments of
any Jefferson Company or restrict or impair the ability of UPC or any of
its Subsidiaries to vote, or otherwise to exercise the rights of a
stockholder with respect to, shares of any Jefferson Company that may be
directly or indirectly acquired or controlled by it.
8.12 RIGHTS AGREEMENT. Jefferson shall take all
----------------
necessary action (including, if required, redeeming all of the
outstanding Preferred Stock Purchase Rights or amending or terminating
the Jefferson Rights Agreement) so that the entering into of this
Agreement, the acquisition of shares pursuant to the Stock Option
Agreement, and consummation of the Merger and the other transactions
contemplated hereby do not and will not result in any Person becoming
able to exercise any Preferred Stock Purchase Rights under the Jefferson
Rights Agreement or enabling or requiring the Preferred Stock Purchase
Rights to be separated from the shares of Jefferson Common Stock to
which they are attached or to be triggered or to become exercisable.
8.13 AGREEMENT OF AFFILIATES. Jefferson has disclosed in
-----------------------
Section 8.13 of the Jefferson Disclosure Memorandum each Person whom it
reasonably believes may be deemed an "affiliate" of Jefferson for
purposes of Rule 145 under the 1933 Act. Jefferson shall use its
reasonable efforts to cause each such Person to deliver to UPC prior to
the Effective Time, a
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<PAGE>
written agreement, in substantially the form of Exhibit 3, providing
that such Person will not sell, pledge, transfer, or otherwise dispose
of the shares of UPC Common Stock to be received by such Person upon
consummation of the Merger except in compliance with applicable
provisions of the 1933 Act and the rules and regulations thereunder.
UPC shall not be required to maintain the effectiveness of the
Registration Statement under the 1933 Act for the purposes of resale of
UPC Common Stock by such affiliates.
8.14 EMPLOYEE BENEFITS AND CONTRACTS. Following the
-------------------------------
Effective Time, but in no event earlier than the consolidation of
Jefferson's depository institution Subsidiaries with UPC's depository
institution Subsidiaries, UPC shall provide to officers and employees of
the Jefferson Companies (the "Continuing Employees"), employee benefits
under employee benefit plans on terms and conditions which when taken as
a whole are substantially similar to those currently provided by the UPC
Companies to their similarly situated officers and employees. For
purposes of participation, vesting, and benefit accruals (but not
accrual of benefits under UPC's tax-qualified retirement plan) under
such employee benefit plans, (i) service under any qualified defined
benefit or contribution plans of Jefferson shall be treated as service
under UPC's qualified defined benefit or contribution plans and
(ii) service under any other employee benefit plans of Jefferson shall
be treated as service under any similar employee benefit plans
maintained by UPC. UPC shall cause the UPC welfare benefit plans that
cover the Continuing Employees after the Effective Time to (i) waive any
waiting period and restrictions and limitations for preexisting
conditions or insurability and (ii) cause any deductible, co-insurance,
or maximum out-of-pocket payments made by the Continuing Employees under
Jefferson's welfare benefit plans to be credited to such Continuing
Employees under the UPC welfare benefit plans, so as to reduce the
amount of any deductible, co-insurance, or maximum out-of-pocket
payments payable by the Continuing Employees under the UPC welfare
benefit plans. Prior to the commencement of the Continuing Employees'
participation in the UPC employee benefit plans and programs, the
benefit coverage of, and participation in benefit plans by, the
Continuing Employees shall continue under the Jefferson Benefit Plans,
as in effect immediately prior to the Effective Time. During such
transition period, the coverage under and participation in the Jefferson
Benefit Plans shall be deemed to provide the Continuing Employees with
benefits that are no less favorable than those offered to other
employees of UPC and its Subsidiaries. UPC shall and also shall cause
UPHC (as the survivor in the Merger) and the Jefferson Subsidiaries to
honor all employment, severance, retention, consulting, and other
compensation Contracts disclosed in Section 8.14 of the Jefferson
Disclosure Memorandum to UPC between any Jefferson Company and any
current or former director, officer, independent contractor, or employee
thereof, and all provisions of the Jefferson Benefit Plans. The
provisions of the immediately preceding sentence of this Section 8.14
are intended to be for the benefit of, and shall be enforceable by each
person described therein.
8.15 INDEMNIFICATION.
---------------
(a) For a period of six years after the Effective
Time, UPC shall indemnify, defend and hold harmless the present and
former directors, officers, employees, and agents of Jefferson or any of
Jefferson's Subsidiaries (each, a "Indemnified Party") (including any
person who becomes a director, officer, employee, or agent prior to the
Effective Time) against all Liabilities (including reasonable attorneys'
fees, and expenses, judgments, fines and amounts
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paid in settlement) arising out of actions or omissions occurring at or
prior to the Effective Time (including the transactions contemplated by
this Agreement and the Stock Option Agreement) to the full extent
permitted under Delaware Law and by Jefferson's Certificate of
Incorporation and Bylaws, as in effect on the date hereof and any
indemnity agreements entered into prior to the date of this Agreement by
any of the Jefferson Companies and any director, officer, employee, or
agent of any of the Jefferson Companies, including, without limitation,
provisions relating to advances of expenses incurred in the defense of
any Litigation. Without limiting the foregoing, in any case in which
approval by UPC is required to effectuate any indemnification, UPC shall
direct, at the election of the Indemnified Party, that the determination
of any such approval shall be made by independent counsel mutually
agreed upon between UPC and the Indemnified Party.
(b) UPC and the Surviving Corporation shall use
their reasonable efforts (and Jefferson shall cooperate prior to the
Effective Time in these efforts) to maintain in effect for a period of
three years after the Effective Time, Jefferson's existing directors'
and officers' liability insurance policy (provided that UPC and the
Surviving Corporation may substitute therefor (i) policies of at least
the same coverage and amounts containing terms and conditions which are
substantially no less advantageous or (ii) with the consent of Jefferson
given prior to the Effective Time, any other policy) with respect to
claims arising from facts or events which occurred prior to the
Effective Time and covering persons who are currently covered by such
insurance; provided, that the Surviving Corporation shall not be
obligated to make aggregate annual premium payments for such three-year
period in respect of such policy (or coverage replacing such policy)
which exceed, for the portion related to Jefferson's directors and
officers, 150% of the annual premium payments on Jefferson's current
policy in effect as of the date of this Agreement (the "Maximum
Amount"). If the amount of the premiums necessary to maintain or
procure such insurance coverage exceeds the Maximum Amount, UPC shall
use its reasonable efforts to maintain the most advantageous policies of
directors' and officers' liability insurance obtainable for a premium
equal to the Maximum Amount.
(c) Any Indemnified Party wishing to claim
indemnification under paragraph (a) of this Section 8.15, upon learning
of any such Liability or Litigation, shall promptly notify UPC thereof,
provided that the failure so to notify shall not affect the obligations
of UPC under this Section 8.15 unless and to the extent such failure
materially increases UPC's Liability under this Section 8.15. In the
event of any such Litigation (whether arising before or after the
Effective Time), (i) UPC or the Surviving Corporation shall have the
right to assume the defense thereof and UPC 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 UPC or the Surviving
Corporation elects not to assume such defense or counsel for the
Indemnified Parties advises that there are substantive issues which
raise conflicts of interest between UPC or the Surviving Corporation and
the Indemnified Parties, the Indemnified Parties may retain counsel
satisfactory to them, and UPC or the Surviving Corporation shall pay all
reasonable fees and expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received; provided, that UPC shall
be obligated pursuant to this paragraph (c) to pay for only one firm of
counsel for all Indemnified Parties in any jurisdiction, (ii) the
Indemnified Parties will cooperate in the defense of any such
Litigation, and (iii) UPC shall not be liable for any settlement
effected without its prior written consent; and provided further that
the Surviving Corporation shall not have any obligation
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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.
(d) The Surviving Corporation shall not be liable
for any settlement effected without its prior written consent which
shall not be unreasonably withheld.
(e) If either UPC or the Surviving Corporation or
any of their respective successors or assigns shall consolidate with or
merge into any other Person and shall not be the continuing or surviving
Person of such consolidation or merger or shall transfer all or
substantially all of its Assets to any Person, then and in each case,
proper provision shall be made so that the successors and assigns of
either UPC or the Surviving Corporation shall assume the obligations set
forth in this Section 8.15.
(f) UPC shall pay all reasonable costs, including
attorneys' fees, that may be incurred by any Indemnified Party in
enforcing the indemnity and other obligations provided for in this
Section 8.15.
(g) The provisions of this Section 8.15 are intended
to be for the benefit of, and shall be enforceable by, each Indemnified
Party and his or her heirs or representatives.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
-------------------------------------------------
9.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The
---------------------------------------
respective obligations of each Party to perform this Agreement and the
Plan of Merger and 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 11.6 of
this Agreement:
(a) STOCKHOLDER APPROVAL. The stockholders of Jefferson
--------------------
shall have approved this Agreement and the Plan of Merger and the
consummation of the transactions contemplated hereby and thereby,
including the Merger, as and to the extent required by Law, by the
provisions of any governing instruments, and by the rules of the
NASD.
(b) REGULATORY APPROVALS. All Consents of, filings and
--------------------
registrations with, and notifications to, all Regulatory
Authorities required for consummation of the Merger shall have
been obtained or made and shall be in full force and effect and
all waiting periods required by Law shall have expired. No
Consent obtained from any Regulatory Authority which is necessary
to consummate the transactions contemplated hereby shall be
conditioned or restricted in a manner (excluding requirements
relating to the raising of additional capital or the disposition
of Assets or deposits) which in the reasonable good faith judgment
of the Board of Directors of UPC would so materially adversely
impact the economic or business benefits of the transactions
contemplated by this Agreement so as to render inadvisable the
consummation of the Merger.
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(c) CONSENTS AND APPROVALS. Each Party shall have
----------------------
obtained any and all Consents required for consummation of the
Merger (other than those referred to in Section 9.1(b) of this
Agreement) 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.
(d) 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.
(e) REGISTRATION STATEMENT. The Registration Statement
----------------------
shall be effective under the 1933 Act, no stop orders suspending
the effectiveness of the Registration Statement shall have been
issued, no action, suit, proceeding, or investigation by the SEC
to suspend the effectiveness thereof shall have been initiated and
be continuing, and all necessary approvals under state securities
Laws or the 1933 Act or 1934 Act relating to the issuance or
trading of the shares of UPC Common Stock issuable pursuant to the
Merger shall have been received.
(f) EXCHANGE LISTING. The shares of UPC Common Stock
----------------
issuable pursuant to the Merger shall have been approved for
listing on the NYSE, subject to official notice of issuance.
(g) TAX MATTERS. Jefferson shall have received a
-----------
written opinion from Lewis, Rice & Fingersh, L.C. and UPC shall
have received a written opinion from Alston & Bird LLP, in each
case, in a form reasonably satisfactory to the Party to whom it
was delivered (each a "Tax Opinion"), dated the date of the
Effective Time, substantially to the effect that (i) the Merger
will constitute a reorganization within the meaning of Section
368(a) of the Internal Revenue Code, (ii) no gain or loss will be
recognized by holders of Jefferson Common Stock who exchange all
of their Jefferson Common Stock solely for UPC Common Stock
pursuant to the Merger (except with respect to any cash received
in lieu of a fractional share interest in UPC Common Stock), (iii)
the tax basis of the UPC Common Stock received by holders of
Jefferson Common Stock who exchange all of their Jefferson Common
Stock solely for UPC Common Stock in the Merger will be the same
as the tax basis of the Jefferson Common Stock surrendered in
exchange for the UPC Common Stock (reduced by any amount allocable
to a fractional share interest in UPC Common Stock for which cash
is received), and (iv) the holding period of the UPC Common Stock
received by holders who exchange all of their Jefferson Common
Stock solely for UPC Common Stock in the Merger will be the same
as the holding period of the Jefferson Common Stock surrendered in
exchange therefor, provided that such Jefferson Common Stock is
held as a capital asset at the Effective Time. In rendering such
Tax Opinions, such counsel shall be entitled to rely upon
representations of officers of Jefferson and UPC reasonably
satisfactory in form and substance to such counsel.
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9.2 CONDITIONS TO OBLIGATIONS OF UPC. The obligations
--------------------------------
of UPC to perform this Agreement and consummate the Merger and the other
transactions contemplated hereby are subject to the satisfaction of the
following conditions, unless waived by UPC pursuant to Section 11.6(a)
of this Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of
------------------------------
this Section 9.2(a), the accuracy of the representations and
warranties of Jefferson 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 Jefferson set forth in Section
5.3 of this Agreement shall be true and correct (except for
inaccuracies which are de minimis in amount). The representations
and warranties of Jefferson set forth in Sections 5.18, 5.19,
5.20, and 5.21 of this Agreement shall be true and correct in all
Material respects. There shall not exist inaccuracies in the
representations and warranties of Jefferson set forth in this
Agreement (including the representations and warranties set forth
in Sections 5.3, 5.18, 5.19, 5.20, and 5.21) such that the
aggregate effect of such inaccuracies has, or is reasonably likely
to have, a Material Adverse Effect on Jefferson; provided that,
for purposes of this sentence only, those representations and
warranties which are qualified by references to "material,
"Material," "Material Adverse Effect," or variations thereof, or
to the "Knowledge" of Jefferson or to a matter being "known" by
Jefferson shall be deemed not to include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and
---------------------------------------
all of the agreements and covenants of Jefferson 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.
(c) CERTIFICATES. Jefferson shall have delivered to UPC
------------
(i) a certificate, dated as of the Effective Time and signed on
its behalf by its duly authorized officers, to the effect that the
conditions of its obligations set forth in Section 9.2(a) and
9.2(b) of this Agreement have been satisfied and (ii) certified
copies of resolutions duly adopted by Jefferson's Board of
Directors and stockholders evidencing the taking of all corporate
action necessary to authorize the execution, delivery, and
performance of this Agreement and the Plan of Merger, and the
consummation of the transactions contemplated hereby and thereby,
all in such reasonable detail as UPC and its counsel shall
request.
(d) AFFILIATE AGREEMENTS. UPC shall have received from
--------------------
each affiliate of Jefferson the affiliates agreement referred to
in Section 8.12 of this Agreement.
(e) RIGHTS AGREEMENT. None of the events described in
----------------
Sections 1(o), 23, or 24 of the Jefferson Rights Agreement shall
have occurred, and the Preferred Stock Purchase Rights shall not
have become non-redeemable or exercisable for capital stock of UPC
upon consummation of the Merger.
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<PAGE>
<PAGE>
9.3 CONDITIONS TO OBLIGATIONS OF JEFFERSON. The
--------------------------------------
obligations of Jefferson to perform this Agreement and the Plan of
Merger and consummate the Merger and the other transactions contemplated
hereby are subject to the satisfaction of the following conditions,
unless waived by Jefferson pursuant to Section 11.6(b) of this
Agreement:
(a) REPRESENTATIONS AND WARRANTIES. For purposes of
------------------------------
this Section 9.3(a), the accuracy of the representations and
warranties of UPC 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 UPC set forth in Section 6.3 of this Agreement shall
be true and correct (except for inaccuracies which are de minimis
in amount). The representations and warranties of UPC set forth
in Section 6.16 of this Agreement shall be true and correct in all
Material respects. There shall not exist inaccuracies in the
representations and warranties of UPC set forth in this Agreement
(including the representations and warranties set forth in
Sections 6.3 and 6.16) such that the aggregate effect of such
inaccuracies has, or is reasonably likely to have, a Material
Adverse Effect on UPC; provided that, for purposes of this
sentence only, those representations and warranties which are
qualified by references to "material," "Material," "Material
Adverse Effect," or variations thereof, or to the "Knowledge" of
UPC or to a matter being "known" by UPC shall be deemed not to
include such qualifications.
(b) PERFORMANCE OF AGREEMENTS AND COVENANTS. Each and
---------------------------------------
all of the agreements and covenants of UPC and UPHC 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.
(c) CERTIFICATES. UPC shall have delivered to Jefferson
------------
(i) a certificate, dated as of the Effective Time and signed on
its behalf by its duly authorized officers, to the effect that the
conditions of its obligations set forth in Section 9.3(a) and
9.3(b) of this Agreement have been satisfied and (ii) certified
copies of resolutions duly adopted by UPC's and UPHC's Board of
Directors and stockholders (in the case of UPHC) evidencing the
taking of all corporate action necessary to authorize the
execution, delivery, and performance of this Agreement, and the
consummation of the transactions contemplated hereby, all in such
reasonable detail as Jefferson and its counsel shall request.
(d) FAIRNESS OPINION. Jefferson shall have received a
----------------
written opinion of its financial advisor, Sandler O'Neill &
Partners L.P. dated within five business days of the date of the
Proxy Statement, to the effect that the exchange ratio is fair,
from the financial point of view, to the holders of Jefferson
Common Stock.
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<PAGE>
<PAGE>
ARTICLE 10
TERMINATION
-----------
10.1 TERMINATION. Notwithstanding any other provision of
-----------
this Agreement and the Plan of Merger, and notwithstanding the approval
of this Agreement by the stockholders of Jefferson, 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 UPC and
the Board of Directors of Jefferson; or
(b) By the Board of Directors of either Party (provided
that the terminating Party is not then in breach of any
representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement
in the case of Jefferson and Section 9.3(a) of this Agreement in
the case of UPC or in Material breach of any covenant or other
agreement contained in this Agreement) in the event of an
inaccuracy of any representation or warranty of the other Party
contained in this Agreement which cannot be or has not been cured
within 30 days after the giving of written notice to the breaching
Party of such inaccuracy and which inaccuracy would provide the
terminating Party the ability to refuse to consummate the Merger
under the applicable standard set forth in Section 9.2(a) of this
Agreement in the case of Jefferson and Section 9.3(a) of this
Agreement in the case of UPC; or
(c) By the Board of Directors of either Party (provided
that the terminating Party is not then in breach of any
representation or warranty contained in this Agreement under the
applicable standard set forth in Section 9.2(a) of this Agreement
in the case of Jefferson and Section 9.3(a) in the case of UPC) in
the event of a Material breach by the other Party of any covenant
or agreement contained in this Agreement which cannot be or has
not been cured within 30 days after the giving of written notice
to the breaching Party of such breach; or
(d) By the Board of Directors of either Party in the event
(i) any Consent of any Regulatory Authority required for
consummation of the Merger and the other transactions contemplated
hereby shall have been denied by final nonappealable action of
such authority or if any action taken by such authority is not
appealed within the time limit for appeal or (ii) the stockholders
of Jefferson fail to vote their approval of the matters submitted
for the approval by such stockholders at the Stockholders' Meeting
where the transactions were presented to such stockholders for
approval and voted upon; or
(e) By the Board of Directors of either Party in the event
that the Merger shall not have been consummated by June 30, 2001,
if the failure to consummate the transactions contemplated hereby
on or before such date is not caused by any breach of this
Agreement by the Party electing to terminate pursuant to this
Section 10.1(e); or
(f) By the Board of Directors of either Party (provided
that the terminating Party is not then in breach of any
representation or warranty contained in this Agreement under the
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<PAGE>
<PAGE>
applicable standard set forth in Section 9.2(a) of this Agreement
in the case of Jefferson and Section 9.3(a) of this Agreement in
the case of UPC or in Material breach of any covenant or other
agreement contained in this Agreement) in the event that any of
the conditions precedent to the obligations of such Party to
consummate the Merger cannot be satisfied or fulfilled by the date
specified in Section 10.1(e) of this Agreement; or
(g) By the Board of Directors of Jefferson, if it
determines by a vote of a majority of the members of its entire
Board, at any time during the ten-day period commencing two days
after the Determination Date, if both of the following conditions
are satisfied:
(1) the Average Closing Price shall be less
than the product of (i) 0.85 and (ii) the Starting Price;
and
(2) (i) the quotient obtained by dividing the
Average Closing Price by the Starting Price (such number
being referred to herein as the "UPC Ratio") shall be less
than (ii) the quotient obtained by dividing the Index Price
on the Determination Date by the Index Price on the Starting
Date and subtracting 0.20 from the quotient in this clause
(2)(ii) (such number being referred to herein as the "Index
Ratio");
subject, however, to the following three sentences. If Jefferson
refuses to consummate the Merger pursuant to this Section 10.1(g), it
shall give prompt written notice thereof to UPC; provided, that such
notice of election to terminate may be withdrawn at any time within the
aforementioned ten-day period. During the five-day period commencing
with its receipt of such notice, UPC shall have the option to elect to
increase the Exchange Ratio to equal the lesser of (i) the quotient
obtained by dividing (1) the product of 0.85, the Starting Price, and
the Exchange Ratio (as then in effect) by (2) the Average Closing Price,
and (ii) the quotient obtained by dividing (1) the product of the Index
Ratio and the Exchange Ratio (as then in effect) by (2) the UPC Ratio.
If UPC makes an election contemplated by the preceding sentence, within
such five-day period, it shall give prompt written notice to Jefferson
of such election and the revised Exchange Ratio, whereupon no
termination shall have occurred pursuant to this Section 10.1(g) and
this Agreement shall remain in effect in accordance with its terms
(except as the Exchange Ratio shall have been so modified), and any
references in this Agreement to "Exchange Ratio" shall thereafter be
deemed to refer to the Exchange Ratio as adjusted pursuant to this
Section 10.1(g).
For purposes of this Section 10.1(g), the following terms
shall have the meanings indicated:
"Average Closing Price" shall mean the average of the daily
last sales prices of UPC Common Stock as reported on the NYSE (as
reported by The Wall Street Journal or, if not reported thereby,
another authoritative source as chosen by UPC) for the 10
consecutive full trading days in which such shares are traded on
the NYSE ending at the close of trading on the Determination Date.
"Determination Date" shall mean the later of the date on
which (i) the Consent of the Board of Governors of the Federal
Reserve System (without regard to any
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<PAGE>
<PAGE>
requisite waiting period thereof) to the Merger shall be received
by UPC and (ii) the Stockholders' Meeting occurs.
"Index Group" shall mean the 13 bank holding companies
listed below, the common stocks of all of which shall be publicly
traded and as to which there shall not have been, since the
Starting Date and before the Determination Date, any public
announcement of a proposal for such company to be acquired or for
such company to acquire another company or companies in
transactions with a value exceeding 25% of the acquiror's market
capitalization. In the event that any such company or companies
are removed from the Index Group, the weights (which shall be
determined based upon the number of outstanding shares of common
stock) shall be redistributed proportionately for purposes of
determining the Index Price. The 13 bank holding companies and
the weights attributed to them are as follows:
<TABLE>
<CAPTION>
Common Percent
Shares of
Bank Outstanding Total
--------------------------------------- --------------- ----------
<S> <C> <C>
AmSouth Bancorporation 376,713,817 14.04%
BB&T Corporation 399,893,490 14.91%
Comerica Incorporated 156,496,000 5.83%
Fifth Third Bancorp 465,002,511 17.33%
First Tennessee National Corporation 129,681,012 4.83%
Huntington Bancshares, Inc. 251,330,858 9.37%
M&T Bank Corporation 7,654,758 0.29%
National Commerce Bancorporation 111,059,797 4.14%
Old Kent Financial Corporation 136,925,615 5.10%
Regions Financial Corporation 218,841,161 8.16%
SouthTrust Corporation 168,233,823 6.27%
Summit Bancorp 173,926,726 6.48%
Zions Bancorporation 86,884,952 3.24%
TOTAL 2,682,644,520 100.00%
</TABLE>
"Index Price" on a given date shall mean the weighted
average (weighted in accordance with the factors listed above) of
the closing prices of the companies composing the Index Group.
"Starting Date" shall mean the fourth full trading day after
the announcement by press release of the Merger.
"Starting Price" shall mean the closing price per share of
UPC Common Stock as reported on the NYSE (as reported by The Wall
Street Journal or, if not reported thereby, another authoritative
source as chosen by UPC) on the Starting Date.
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<PAGE>
<PAGE>
If any company belonging to the Index Group or UPC
declares or effects a stock dividend, reclassification,
recapitalization, split-up, combination, exchange of shares, or
similar transaction between the date of this Agreement and the
Determination Date, the prices for the common stock of such
company or UPC shall be appropriately adjusted for the purposes of
applying this Section 10.1(g).
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, the Plan of Merger, and the
Supplemental Letter shall become void and have no effect and no Party
shall have any Liability or further obligation to any other Party
hereunder, except that (i) the provisions of this Section 10.2 and
Article 11 and Section 8.6(b) of this Agreement shall survive any such
termination and abandonment and (ii) a termination pursuant to Sections
10.1(b), 10.1(c), or 10.1(f) of this Agreement shall not relieve the
breaching Party from Liability for an uncured willful breach of a
representation, warranty, covenant, or agreement giving rise to such
termination. The Stock Option Agreement shall be governed by its own
terms.
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 and Articles 2, 3, 4, and 11 and Sections 8.13 and
8.15 of this Agreement and the Supplemental Letter.
ARTICLE 11
MISCELLANEOUS
-------------
11.1 DEFINITIONS.
-----------
(a) Except as otherwise provided herein, the
capitalized terms set forth below shall have the following meanings:
"ACQUISITION PROPOSAL" with respect to a Party shall mean
any tender offer or exchange offer or any proposal for a merger,
acquisition of all of the stock or Assets of, or other business
combination involving such Party or any of its Subsidiaries or the
acquisition of a substantial equity interest in, or a substantial
portion of the Assets of, such Party or any of its Subsidiaries.
"AFFILIATE" of a Person shall mean any other Person
directly, or indirectly through one or more intermediaries,
controlling, controlled by or under common control with such
Person.
"AGREEMENT" shall mean this Agreement and Plan of
Reorganization, including the Exhibits hereto (except the Stock
Option Agreement) and the Supplement Letter delivered pursuant
hereto and incorporated herein by reference.
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<PAGE>
<PAGE>
"ARTICLES OF MERGER" shall mean the Articles of Merger to be
executed by UPHC and filed with the Secretary of State of the
State of Tennessee relating to the Merger as contemplated by
Section 1.1 of this Agreement.
"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.
"BHC ACT" shall mean the federal Bank Holding Company Act of
1956, as amended.
"CERTIFICATE OF MERGER" shall mean the certificate of merger
to be executed by UPHC and filed with the Secretary of State of
the State of Delaware, relating to the Merger as contemplated by
Section 1.1 of this Agreement.
"CONFIDENTIALITY AGREEMENTS" shall mean those certain
Confidentiality Agreements, entered into prior to the date of this
Agreement, between Jefferson and UPC.
"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 notice
or both would constitute a breach or violation of or default under
any Contract, Order, or Permit, or (iii) any occurrence of 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.
"DGCL" shall mean the Delaware General Corporation Law.
"ENVIRONMENTAL LAWS" shall mean all Laws relating to
pollution or protection of human health or the environment
(including ambient air, surface water, ground water, land surface,
or subsurface strata) and which are administered, interpreted, or
enforced by the United States Environmental Protection Agency and
state and local agencies with
- 44 -
<PAGE>
<PAGE>
jurisdiction over, and including common law in respect of,
pollution or protection of the environment, including the
Comprehensive Environmental Response Compensation and Liability
Act, as amended, 42 U.S.C. 9601 et seq. ("CERCLA"), the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq.
("RCRA"), and other Laws relating to emissions, discharges,
releases, or threatened releases of any Hazardous Material, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of any
Hazardous Material.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"EXHIBITS" 1 through 3, inclusive, shall mean the Exhibits
so marked, copies of which are attached to this Agreement. Such
Exhibits are hereby incorporated by reference herein and made a
part hereof, and may be referred to in this Agreement and any
other related instrument or document without being attached
hereto.
"GAAP" shall mean generally accepted accounting principles,
consistently applied during the periods involved.
"HAZARDOUS MATERIAL" shall mean (i) any hazardous substance,
hazardous material, hazardous waste, regulated substance, or toxic
substance (as those terms are defined by any applicable
Environmental Laws) and (ii) any chemicals, pollutants,
contaminants, petroleum, petroleum products, or oil (and
specifically shall include asbestos requiring abatement, removal,
or encapsulation pursuant to the requirements of governmental
authorities and any polychlorinated biphenyls).
"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.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated
thereunder.
"JEFFERSON COMMON STOCK" shall mean the $.01 par value
common stock of Jefferson.
"JEFFERSON COMPANIES" shall mean, collectively, Jefferson
and all Jefferson Subsidiaries.
"JEFFERSON DISCLOSURE MEMORANDUM" shall mean the written
information entitled "Jefferson Disclosure Memorandum" delivered
prior to the execution of this Agreement to UPC describing in
reasonable detail the matters contained therein and, with respect
to each disclosure made therein, specifically referencing each
Section or subsection of this Agreement under which such
disclosure is being made.
- 45 -
<PAGE>
<PAGE>
"JEFFERSON FINANCIAL STATEMENTS" shall mean (i) the
consolidated statements of condition (including related notes and
schedules, if any) of Jefferson as of June 30, 2000, and as of
December 31, 1999 and 1998, and the related statements of income,
changes in stockholders' equity, and cash flows (including related
notes and schedules, if any) for the six months ended June 30,
2000, and for each of the three years ended December 31, 1998,
1999, and 1997, as filed by Jefferson in SEC Documents and
(ii) the consolidated statements of condition of Jefferson
(including related notes and schedules, if any) and related
statements of income, changes in stockholders' equity, and cash
flows (including related notes and schedules, if any) included in
SEC Documents filed with respect to periods ended subsequent to
June 30, 2000.
"JEFFERSON PREFERRED STOCK" shall mean the $.01 par value
Preferred Stock of Jefferson.
"JEFFERSON RIGHTS AGREEMENT" shall mean that certain Rights
Agreement, dated August 17, 1994, between Jefferson and Boatmen's
Trust Company, as Rights Agent.
"JEFFERSON STOCK PLANS" shall mean the existing stock option
and other stock-based compensation plans of Jefferson, including
without limiting the generality for the foregoing: Jefferson
Savings Bancorp, Inc. 1993 Stock Option and Incentive Plan;
Jefferson Savings Bancorp, Inc. Management Recognition Plan "A";
Jefferson Savings Bancorp, Inc. Management Recognition Plan "B";
Jefferson Savings Bancorp, Inc. Management Recognition Plan "C";
and Jefferson Savings Bancorp, Inc. Management Recognition Plan
"D."
"JEFFERSON SUBSIDIARIES" shall mean the Subsidiaries of
Jefferson, which shall include the Jefferson Subsidiaries
described in Section 5.4 of this Agreement and any corporation,
bank, savings association, or other organization acquired as a
Subsidiary of Jefferson in the future and owned by Jefferson at
the Effective Time.
"KNOWLEDGE" as used with respect to a Person (including
references to such Person being aware of a particular matter)
shall mean the personal knowledge of the chairman, president,
chief financial officer, chief accounting officer, chief credit
officer, general counsel, or any executive vice president of such
Person.
"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 Regulatory Authority.
"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.
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<PAGE>
<PAGE>
"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 property Taxes not yet due and
payable and (ii) for depository institution Subsidiaries of a
Party, pledges to secure deposits, and other Liens incurred in the
ordinary course of the banking business.
"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 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.
"LOAN PROPERTY" shall mean any property owned, leased, or
operated by the Party in question or by any of its Subsidiaries or
in which such Party or Subsidiary holds a security or other
interest (including an interest in a fiduciary capacity), and,
where required by the context, includes the owner or operator of
such property, but only with respect to such property.
"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.
"MATERIAL ADVERSE EFFECT" on a Party shall mean an event,
change, or occurrence which, individually or together with any
other event, change, or occurrence, has a Material adverse impact
on (i) the financial condition, results of operations, or business
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 banks and their holding companies, (c) 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, (d) the Merger and compliance
with the provisions of this Agreement (including the expense
associated with the vesting of benefits under the various employee
benefit plans of Jefferson as a result of the Merger constituting
a change of control) on the operating performance of the Parties,
including expenses incurred by the Parties in consummating the
transactions contemplated by the Agreement, and (e) changes in
economic conditions affecting financial institutions generally.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
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<PAGE>
<PAGE>
"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.
"OPTION SETTLEMENT CLOSING PRICE" shall mean the average of
the daily last sales prices of UPC Common Stock at the close of
regular trading as reported on the NYSE (as reported by The Wall
Street Journal or, if not reported thereby, another authoritative
source as chosen by UPC) for the ten consecutive full trading days
in which such shares are traded on the NYSE ending at the close of
trading on the fifth trading day immediately preceding the
Effective Time.
"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.
"OTS" shall mean the Office of Thrift Supervision.
"PARTICIPATION FACILITY" shall mean any facility or property
in which the Party in question or any of its Subsidiaries
participates in the management (including, but not limited to,
participating in a fiduciary capacity) and, where required by the
context, said term means the owner or operator of such facility or
property, but only with respect to such facility or property.
"PARTY" shall mean either Jefferson or UPC, and "PARTIES"
shall mean both Jefferson and UPC.
"PERMIT" shall mean any federal, state, local, and foreign
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 providing for
the Merger, in substantially the form of Exhibit 2.
"PREFERRED STOCK PURCHASE RIGHTS" shall mean the preferred
stock purchase rights issued pursuant to the Jefferson Rights
Agreement.
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<PAGE>
<PAGE>
"PROXY STATEMENT" shall mean the proxy statement included as
part of the Registration Statement used by Jefferson to solicit
the approval of its stockholders of the transactions contemplated
by this Agreement, which shall include the prospectus of UPC
relating to the issuance of the UPC Common Stock to holders of
Jefferson Common Stock.
"REGISTRATION STATEMENT" shall mean the Registration
Statement on Form S-4, or other appropriate form, including any
pre-effective or post-effective amendments or supplements thereto,
filed with the SEC by UPC under the 1933 Act with respect to the
shares of UPC Common Stock to be issued to the stockholders of
Jefferson in connection with the transactions contemplated by this
Agreement.
"REGULATORY AUTHORITIES" shall mean, collectively, the
Federal Trade Commission, the United States Department of Justice,
the Board of the Governors of the Federal Reserve System, the
Office of the Comptroller of the Currency, the Federal Deposit
Insurance Corporation, the Office of Thrift Supervision, all state
regulatory agencies having jurisdiction over the Parties and their
respective Subsidiaries, the NASD, the NYSE and the SEC.
"REPRESENTATIVE" shall mean any investment banker, financial
advisor, attorney, accountant, consultant, or other representative
of a Person.
"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.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC DOCUMENTS" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents
filed, or required to be filed, by a Party or any of its
Subsidiaries with any Regulatory Authority pursuant to the
Securities Laws.
"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.
"SLHCA" shall mean the provisions relating to savings and
loan holding companies in the federal Home Owners' Loan Act, as
amended.
"STOCK OPTION AGREEMENT" shall mean the stock option
agreement by and between Jefferson and UPC, in substantially the
form of Exhibit 1.
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"STOCKHOLDERS' MEETING" shall mean the meetings of the
stockholders of Jefferson to be held pursuant to Section 8.1 of
this Agreement, including any adjournment or adjournments thereof.
"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.
"SUPPLEMENTAL LETTER" shall mean the supplemental letter of
even date herewith between the Parties relating to certain
understandings and agreements in addition to those included in
this Agreement.
"SUPERIOR PROPOSAL" means, with respect to Jefferson, any
written Acquisition Proposal made by a Person other than UPC which
is for (i) (a) a merger, reorganization, consolidation, share
exchange, business combination, recapitalization, liquidation,
dissolution, or similar transaction involving Jefferson as a
result of which either (1) Jefferson's stockholders prior to such
transaction (by virtue of their ownership of Jefferson's shares)
in the aggregate cease to own at least 50% of the voting
securities of the entity surviving or resulting from such
transaction (or the ultimate parent entity thereof) or (2) the
individuals comprising the Board of Directors of Jefferson prior
to such transaction do not constitute a majority of the board of
directors of such ultimate parent entity, (b) a sale, lease,
exchange, transfer, or other disposition of at least 50% of the
Assets of Jefferson and its Subsidiaries, taken as a whole, in a
single transaction or a series of related transactions, or (c) the
acquisition, directly or indirectly, by a Person of beneficial
ownership of 25% or more of the common stock of Jefferson whether
by merger, consolidation, share exchange, business combination,
tender, or exchange offer or otherwise, and (ii) which is
otherwise on terms which the Board of Directors of Jefferson in
good faith concludes (after consultation with its financial
advisors and outside counsel), taking into account, among other
things, all legal, financial, regulatory, and other aspects of the
proposal and the Person making the proposal, (a) would, if
consummated, result in a transaction that is more favorable to its
stockholders (in their capacities as stockholders), from a
financial point of view, than the transactions contemplated by
this Agreement, and (b) is reasonably capable of being completed.
"SURVIVING CORPORATION" shall mean UPHC as the surviving
corporation resulting from the Merger.
"TAX" OR "TAXES" shall mean all federal, state, local, and
foreign 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
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unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on
minimum, estimated, or other tax of any kind whatsoever, imposed
or required to be withheld by the United States or any state,
local, or foreign government or subdivision or agency thereof,
including any interest, penalties, or additions thereto.
"TAXABLE PERIOD" shall mean any period prescribed by any
governmental authority, including the United States or any state,
local, or foreign government or subdivision or agency thereof for
which a Tax Return is required to be filed or Tax is required to
be paid.
"TAX RETURN" shall mean any report, return, information
return, or other information required to be supplied to a taxing
authority in connection with Taxes, including any return of an
affiliated or combined or unitary group that includes a Party or
its Subsidiaries.
"TBCA" shall mean the Tennessee Business Corporation Act as
in effect at the Effective Time.
"UPC CAPITAL STOCK" shall mean, collectively, the UPC Common
Stock, the UPC Preferred Stock and any other class or series of
capital stock of UPC.
"UPC COMMON STOCK" shall mean the $5.00 par value common
stock of UPC.
"UPC COMPANIES" shall mean, collectively, UPC and all UPC
Subsidiaries.
"UPC FINANCIAL STATEMENTS" shall mean (i) the consolidated
balance sheets (including related notes and schedules, if any) of
UPC as of June 30, 2000, and as of December 31, 1999 and 1998, and
the related statements of earnings, changes in stockholders'
equity, and cash flows (including related notes and schedules, if
any) for the six months ended June 30, 2000 and for each of the
three years ended December 31, 1999, 1998 and 1997, as filed by
UPC in SEC Documents and (ii) the consolidated balance sheets of
UPC (including related notes and schedules, if any) and related
statements of earnings, changes in stockholders' equity, and cash
flows (including related notes and schedules, if any) included in
SEC Documents filed with respect to periods ended subsequent to
June 30, 2000.
"UPC PREFERRED STOCK" shall mean the no par value preferred
stock of UPC and shall include the (i) Series E 8% Cumulative,
Convertible Preferred Stock, of UPC ("UPC Series E Preferred
Stock") and (ii) Series F Preferred Stock of UPC.
"UPC RIGHTS" shall mean the preferred stock purchase rights
issued pursuant to the UPC Rights Agreement.
"UPC RIGHTS AGREEMENT" shall mean that certain Rights
Agreement, dated January 19, 1999, between UPC and Union Planters
Bank, National Association, as Rights Agent.
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"UPC SUBSIDIARIES" shall mean the Subsidiaries of UPC and
any corporation, bank, or other organization acquired as a
Subsidiary of UPC in the future and owned by UPC at the Effective
Time.
"UPHC" shall mean the wholly-owned subsidiary of UPC
organized under the Laws of the State of Tennessee.
"UPHC COMMON STOCK" shall mean the $1.00 par value common
stock of UPHC.
(b) The terms set forth below shall have the
meanings ascribed thereto in the referenced sections:
Business Combination Section 3.2
Closing Section 1.2
Conversion Option Section 3.5
Effective Time Section 1.3
Exchange Agent Section 4.1
Exchange Ratio Section 3.1(c)
Indemnified Party Section 8.15
Jefferson Benefit Plans Section 5.13(a)
Jefferson Contracts Section 5.14
Jefferson ERISA Affiliate Section 5.13(e)
Jefferson ERISA Plan Section 5.13(a)
Jefferson Rights Section 3.6
Jefferson Pension Plan Section 5.13(a)
Jefferson SEC Reports Section 5.5(a)
Merger Section 1.1
Option Settlement Payment Section 3.6
Takeover Laws Section 5.19
Tax Opinion Section 9.1(g)
UPC ERISA Affiliate Section 6.17
UPC Plan Section 6.15
UPC SEC Reports Section 6.5(a)
(c) 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, registration, and
application fees, printing fees, and fees and expenses of its own
financial or other consultants, investment bankers, accountants, and
counsel, except that each of the Parties shall bear and pay one-half of
the
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printing costs incurred in connection with the printing of the
Registration Statement and the Proxy Statement.
(b) Nothing contained in this Section 11.2 shall
constitute or shall be deemed to constitute liquidated damages for the
willful breach by a Party of the terms of this Agreement or otherwise
limit the rights of the nonbreaching Party.
11.3 BROKERS AND FINDERS. Except for Sandler O'Neill &
-------------------
Partners, L.P. as to Jefferson and except for Stifel Nicolaus & Co. as
to UPC, each of the Parties represents and warrants that neither it nor
any of its officers, directors, employees, or Affiliates has employed
any broker or finder or incurred any Liability for any financial
advisory fees, investment bankers' fees, brokerage fees, commissions, or
finders' fees in connection with this Agreement or the transactions
contemplated hereby. In the event of a claim by any broker or finder
based upon his, her, or its representing or being retained by or
allegedly representing or being retained by Jefferson or UPC, each of
Jefferson and UPC, as the case may be, agrees to indemnify and hold the
other Party harmless of and from any Liability in respect of any such
claim.
11.4 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 (including any provision of the Confidentiality Agreements which
would act to preclude UPC (or any Holder as defined in the Stock Option
Agreement from exercising its rights under the Stock Option Agreement)
to the extent that the Stock Option Agreement is in force and effect,
but excluding the Supplemental Letter). 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, other
than as provided in Sections 8.13 and 8.15 of this Agreement.
11.5 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, whether before or after stockholder approval of this Agreement
has been obtained; provided, that the provisions of this Agreement
relating to the manner or basis in which shares of Jefferson Common
Stock will be exchanged for UPC Common Stock shall not be amended after
the Stockholders' Meeting without the requisite approval of the holders
of the issued and outstanding shares of Jefferson Common Stock entitled
to vote thereon.
11.6 WAIVERS.
-------
(a) Prior to or at the Effective Time, UPC, acting
through its Board of Directors, chief executive officer, chief financial
officer, or other authorized officer, shall have the right to waive any
Default in the performance of any term of this Agreement by Jefferson,
to waive or extend the time for the compliance or fulfillment by
Jefferson of any and all of its obligations under this Agreement, and to
waive any or all of the conditions precedent to the obligations of UPC
under this Agreement, except any condition which, if not satisfied,
would
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result in the violation of any Law. No such waiver shall be effective
unless in writing signed by a duly authorized officer of UPC.
(b) Prior to or at the Effective Time, Jefferson,
acting through its Board of Directors, chief executive officer, chief
financial officer, or other authorized officer, shall have the right to
waive any Default in the performance of any term of this Agreement by
UPC, to waive or extend the time for the compliance or fulfillment by
UPC of any and all of its obligations under this Agreement, and to waive
any or all of the conditions precedent to the obligations of Jefferson
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
Jefferson.
(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.
11.7 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. If, between the date
hereof and the Effective Time, UPC shall merge, consolidate or agree to
consolidate or merge with or into another Person, then provision shall
be made as part of the terms of such transaction that the Person with
whom UPC consolidates or merges shall assume UPC's obligations under
this Agreement in accordance with its terms.
11.8 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:
Jefferson: JEFFERSON SAVINGS BANCORP, INC.
15435 Clayton Road
Ballwin, Missouri 63011
Telecopy Number: (636) 238-4321
Attention: David V. McCay
Chairman and Chief Executive Officer
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Copy to Counsel: LEWIS, RICE & FINGERSH, L.C.
500 North Broadway
Suite 2000
St. Louis, Missouri 63102-2147
Telecopy Number: (314) 241-6056
Attention: John K. Pruellage
UPC: UNION PLANTERS CORPORATION
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Telecopy Number: (901) 580-2939
Attention: Jackson W. Moore
Chairman and Chief Executive Officer
Copy to Counsel: UNION PLANTERS CORPORATION
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Telecopy Number: (901) 580-2939
Attention: E. James House, Jr.
ALSTON & BIRD LLP
601 Pennsylvania Avenue, N.W.
North Building, 11th Floor
Washington, D.C. 20004
Telecopy Number: (202) 756-3333
Attention: Frank M. Conner III
11.9 GOVERNING LAW. 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, except to the extent
that the Laws of the State of Delaware relate to the consummation of the
Merger.
11.10 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.
11.11 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
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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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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: JEFFERSON SAVINGS BANCORP, INC.
By: By:
-------------------------------- ------------------------------------
Paul J. Milano David V. McCay
Secretary Chairman and Chief Executive Officer
[CORPORATE SEAL]
ATTEST: UNION PLANTERS CORPORATION
By: By:
-------------------------------- ------------------------------------
E. James House, Jr. Jackson W. Moore
Secretary Chairman and Chief Executive Officer
[CORPORATE SEAL]
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