ARTICLES OF MERGER
OF
FIRST COMMONWEALTH CORPORATION, A VIRGINIA CORPORATION
WITH AND INTO
UNITED TRUST GROUP, INC., AN ILLINOIS CORPORATION
Pursuant to the provisions of Sections 13.1-720 and 13.1-722 of the
Virginia Stock Corporation Act (the "VSCA"), United Trust Group, Inc., an
Illinois corporation ("UTG"), as the surviving entity of the proposed merger of
First Commonwealth Corporation, a Virginia corporation ("FCC"), with and into
UTG, hereby adopts the following Articles of Merger for the purpose of merging
FCC with and into UTG.
1. Attached hereto as Annex A and made a part hereof, is a copy of the Plan
of Merger (the "Plan of Merger") pursuant to which FCC shall merge with and into
UTG in accordance with the laws of the Commonwealth of Virginia and the State of
Illinois.
2. Pursuant to Section 13.1-722(A)(3) of the VSCA, UTG is the only party to
the Plan of Merger that was not organized under the laws of the Commonwealth of
Virginia; UTG was incorporated under the laws of the State of Illinois. UTG
shall be the surviving corporation of the merger and shall continue to conduct
business under its present name, United Trust Group, Inc. The merger
contemplated by the Plan of Merger is permitted under the laws of the State of
Illinois, and UTG complied with such laws in effecting the merger. Under the
laws of the State of Illinois, no approval of the Plan of Merger by the
shareholders of UTG was necessary.
3. UTG, as the surviving corporation of the merger, is hereby deemed to
make the appointment and agreement contemplated by Section 13.1-722(B) of the
VSCA.
4. The Plan of Merger was submitted to the shareholders of FCC by its board
of directors in accordance the VSCA. The designation, number of outstanding
shares, number of votes entitled to be cast by each voting group entitled to
vote separately on the Plan of Merger, and the number of votes cast for and
against the Plan of Merger by each voting group was as follows:
Designation of shares Common Stock
Number of outstanding shares 54,385
Number of votes entitled to be cast 54,385
Total number of votes cast FOR
the Plan of Merger 46,728
Total number of votes cast AGAINST
the Plan of Merger 417
The number of votes cast for the Plan of Merger set forth above by the
holders of FCC Common Stock was sufficient for approval by that voting group
under Section 13.1-718 of the VSCA.
5. These Articles of Merger shall become effective at 10:00 a.m., eastern
daylight time (9:00 a.m., central daylight time), on Wednesday, June 12, 2002.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, FCC and UTG have executed these Articles of Merger as
of the 30th day of May, 2002.
FIRST COMMONWEALTH CORPORATION UNITED TRUST GROUP, INC.,
a Virginia corporation an Illinois corporation
By: __________________________________ By:___________________________
Theodore C. Miller, Secretary Theodore C. Miller, Secretary
Agreement and Plan of Reorganization
by and between
United Trust Group, Inc.
and
First Commonwealth Corporation
Dated as of June 5, 2001
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of June 5, 2001 by and between UNITED TRUST GROUP, INC., an
Illinois corporation ("UTG"), and FIRST COMMONWEALTH CORPORATION, a Virginia
corporation ("FCC") (UTG and FCC shall sometimes be referred to herein
individually as a "Party" and collectively as the "Parties").
RECITALS
WHEREAS, as of the date of this Agreement, UTG owns more than 80% of the
outstanding shares of common stock of FCC, and the Boards of Directors of each
of UTG and FCC believe it is in the best interests of each company and its
respective shareholders for FCC to merge with and into UTG (the "Merger"),
pursuant to which each share of common stock of FCC ("FCC Common Stock") issued
and outstanding immediately prior to the Effective Time (as defined below) will
be converted into the right to receive the Merger Consideration (as defined
below), subject to certain exceptions described in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants and
other promises set forth herein, the mutual benefits to be gained by the
performance thereof, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged and accepted, the Parties
hereby agree as follows:
ARTICLE I
THE REORGANIZATION
Section 1.01 The Merger. At the Effective Time and subject to and upon the terms
and conditions of this Agreement (including the Plan of Merger contemplated by
Section 1.02) and the applicable provisions of the Illinois Business Corporation
Act ("IBCA") and the Virginia Stock Corporation Act ("VSCA"), FCC shall be
merged with and into UTG, the separate corporate existence of FCC shall cease
and UTG shall continue as the surviving corporation. The corporation surviving
the Merger is sometimes referred to hereinafter as the "Surviving Corporation."
Section 1.02 Effective Time. Unless this Agreement is earlier terminated
pursuant to Section 6.01, the closing of the Merger (the "Closing") will take
place no later than five (5) business days following satisfaction or waiver of
the conditions set forth in Article V hereof, at the offices of Wyatt, Tarrant &
Combs, LLP, 2800 PNC Plaza, Louisville, Kentucky, unless another time and/or
place is mutually agreed upon in writing by FCC and UTG. The date upon which the
Closing actually occurs shall be referred to herein as the "Closing Date." On
the Closing Date, the Parties shall cause the Merger to be consummated by filing
the Plan of Merger, in the form attached hereto as Exhibit A and being executed
by the Parties simultaneously with the execution hereof, together with articles
of merger, with the Virginia State Corporation Commission and the Illinois
Secretary of State (the "Plan of Merger"), in accordance with the applicable
provisions of the VSCA and the IBCA (the time at which the Merger has become
effective under both the VSCA and the IBCA after the filing of the Plan of
Merger and articles of merger with the Virginia State Corporation Commission and
the Illinois Secretary of State shall be referred to herein as the "Effective
Time").
Section 1.03 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the IBCA, the VSCA,
the Plan of Merger and this Agreement. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the property, rights,
privileges, powers and franchises of FCC shall vest in the Surviving
Corporation, and all debts, liabilities and duties of FCC shall become the
debts, liabilities and duties of the Surviving Corporation. At the Effective
Time, the separate corporate existence of FCC shall cease.
Section 1.04 Certificate of Incorporation and Bylaws.
(a) The articles of incorporation of UTG, as in effect immediately prior
to the Effective Time, shall be the articles of incorporation of the
Surviving Corporation at the Effective Time until thereafter amended
in accordance with applicable law and as provided in such articles of
incorporation.
(b) The bylaws of UTG, as in effect immediately prior to the Effective
Time, shall be the bylaws of the Surviving Corporation at the
Effective Time until thereafter amended in accordance with applicable
law and as provided in the articles of incorporation of the Surviving
Corporation and such bylaws.
Section 1.05 Directors and Officers. The directors of UTG immediately prior to
the Effective Time shall be the directors of the Surviving Corporation
immediately after the Effective Time, each to hold the office of a director of
the Surviving Corporation in accordance with the provisions of applicable law,
and the articles of incorporation and bylaws of the Surviving Corporation, as
applicable, until their successors are duly elected and qualified. The officers
of UTG immediately prior to the Effective Time shall be the officers of the
Surviving Corporation immediately after the Effective Time, each to hold office
in accordance with the provisions of the bylaws of the Surviving Corporation,
until their successors are duly appointed.
Section 1.06 Effect of Merger on the Capital Stock of the Constituent
Corporations.
(a) Effect on FCC Capital Stock.
(i) At the Effective Time, by virtue of the Merger and without any action
on the part of UTG, FCC or any of the holders of shares of FCC Common
Stock (the "Shareholders"), each share of FCC Common Stock
issued and outstanding immediately prior to the Effective Time shall
cease to be outstanding and, other than any shares of FCC Common Stock
to be canceled pursuant to Section 1.06(a)(ii) or Section
1.06(a)(iii), shall be converted into and become the right to receive
an amount equal to $250, payable by check or cash (the "Merger
Consideration").
(ii) At the Effective Time, by virtue of the Merger and without any
action on the. part of UTG, FCC or any of the Shareholders, each
share of FCC Common Stock issued and outstanding immediately
prior to the Effective Time and held in the treasury of FCC or by
any subsidiary thereof shall be cancelled and retired and cease
to exist and no payment shall be made with respect thereto.
(iii)At the Effective Time, by virtue of the Merger and without any
action on the part of UTG, FCC or any of the Shareholders, each
share of FCC Common Stock issued and outstanding immediately
prior to the Effective Time and held by UTG shall be cancelled
and retired and cease to exist and no payment shall be made with
respect thereto.
(b) Capital Stock of UTG. At the Effective Time, by virtue of the Merger
and without any action on the part of UTG or FCC, each share of UTG
common stock, no par value per share, issued and outstanding
immediately prior to the Effective Time, shall remain outstanding as
one validly issued, fully paid and nonassessable share of Common Stock
of the Surviving Corporation and shall not be converted into any other
securities or cash in the Merger. The certificates for such shares
shall not be surrendered or in any way modified by reason of the
Merger.
(c) Withholding Taxes. Any cash amounts payable to any Shareholder
pursuant to this Article I shall be subject to, and an amount may be
withheld therefrom equal to, the amount of any requisite state, local,
federal and foreign withholding taxes.
Section 1.07 Preparation of Proxy Statement; Shareholders' Meeting.
(a) As promptly as reasonably practicable following the date hereof, FCC
shall prepare and shall cause to be filed with the Securities and
Exchange Commission ("SEC") proxy materials mutually acceptable
to FCC and UTG which shall constitute the proxy statement relating to
the matters to be submitted to the Shareholders at the Shareholders'
Meeting (as defined in (b) below) (the "Proxy Statement"). FCC
and UTG shall also prepare, and file with the SEC, a statement on
Schedule 13E-3 (together with any supplements or amendments
thereto, the "Schedule 13E-3"). Each of FCC and UTG shall use
reasonable best efforts to have the Proxy Statement and, if
applicable, the Schedule 13E-3, cleared by the SEC as necessary to
consummate the Merger and the transactions contemplated hereby. UTG
and FCC shall, as promptly as practicable after receipt thereof,
provide the other Party copies of any written comments and advise the
other Party of any oral comments, with respect to the Proxy Statement
or the Schedule 13E-3 received from the SEC. The Parties shall
cooperate and provide the other with a reasonable opportunity to
review and comment on any amendment or supplement to the Proxy
Statement or the Schedule 13E-3 prior to filing such with the SEC, and
will provide each other with a copy of all such filings made with the
SEC. Notwithstanding any other provision herein to the contrary, no
amendment or supplement (including by incorporation by reference) to
the Proxy Statement or the Schedule 13E-3 shall be made without the
approval of both Parties, which approval shall not be unreasonably
withheld or delayed; provided that with respect to documents filed by
a Party which are incorporated by reference in the Schedule 13E-3 or
the Proxy Statement, this right of approval shall apply only with
respect to information relating to the other Party or its business,
financial condition or results of operations. FCC will use reasonable
best efforts to cause the Proxy Statement and the Schedule 13E-3 to be
mailed to the Shareholders, as promptly as practicable after the same
is cleared by the SEC. Each Party will advise the other, promptly
after it receives notice thereof, of any request by the SEC for
amendment of the Proxy Statement or the Schedule 13E-3. If at any time
prior to the Effective Time any information relating to UTG or FCC, or
any of their respective affiliates, officers or directors, should be
discovered by UTG or FCC, which information should be set forth in an
amendment or supplement to either the Schedule 13E-3 or the Proxy
Statement so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, the Party which discovers such information shall promptly
notify the other Party and, to the extent required by law, rules or
regulations, an appropriate amendment or supplement describing such
information shall be promptly filed with the SEC and disseminated to
the Shareholders.
(b) FCC shall duly take all lawful action to call, give notice of, convene
and hold a meeting of the Shareholders on a date determined in
accordance with the mutual agreement of FCC and UTG (the
"Shareholders' Meeting") for the purpose of obtaining the approval of
this Agreement and the transactions contemplated hereby (including the
Merger) by the Shareholders (the "FCC Shareholder Approval") and shall
its use reasonable best efforts to solicit the vote of the
Shareholders. Subject to their fiduciary duties, the Board of
Directors of FCC shall recommend adoption of this Agreement by the
Shareholders.
Section 1.08 Exchange Procedures
(a) Promptly after the Effective Time, the Surviving Corporation shall
mail (or shall cause an exchange agent appointed by the Surviving
Corporation to mail) to each record holder, as of the Effective Time,
of any outstanding certificate or certificates which immediately prior
to the Effective Time represented shares of FCC Common Stock (the
"FCC Certificates") a (i) notice of the effectiveness of the
Merger and (ii) form letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the FCC
Certificates shall pass only upon proper delivery of the FCC
Certificates to the Surviving Corporation) and instructions for use in
effecting the surrender of the FCC Certificates for payment therefor.
Upon surrender to the Surviving Corporation of an FCC Certificate,
together with the appropriate and duly executed transmittal materials
described in the foregoing sentence and any other required documents,
the holder of such FCC Certificate shall receive in exchange therefore
the applicable Merger Consideration determined pursuant to Section
1.06 hereof, and such Certificate shall forthwith be cancelled. No
interest will be paid or accrued on any consideration payable upon the
surrender of the FCC Certificates. If payment is to be remitted to a
name other than that in which the FCC Certificate surrendered for
exchange is registered, it shall be a condition of such exchange that
the FCC Certificate so surrendered shall be properly endorsed, with
signature guaranteed, or otherwise in proper form for transfer and
that the person requesting such exchange shall pay to UTG or its
transfer agent any transfer or other taxes required by reason of the
payment of the applicable Merger Consideration to a person other than
the registered holder of the FCC Certificate surrendered, or establish
to the satisfaction of UTG or its transfer agent that such tax has
been paid or is not applicable. Until surrendered in accordance with
the provisions of this Section 1.08, each FCC Certificate (other than
FCC Certificates representing shares to be cancelled pursuant to
Sections 1.06(a)(ii) or 1.06(a)(iii)) shall represent for all purposes
only the right to receive the applicable Merger Consideration set
forth in Section 1.06, without any interest thereon, subject to any
required withholding taxes.
(b) From and after the Effective Time, the holders of FCC Certificates
evidencing shares of FCC Common Stock issued and outstanding
immediately prior to the Effective Time shall cease to have any rights
with respect to such shares, except as otherwise provided herein, the
Plan of Merger or by applicable law.
(c) Any holders of shares of FCC Common Stock prior to the Merger who have
not complied with this Article I and surrendered their FCC
Certificates to the Surviving Corporation in accordance with this
Section 1.08 within six (6) months after the Effective Time shall
thereafter look only to the Surviving Corporation as general creditors
thereof for payment of their claim for the applicable Merger
Consideration to which such holders may be entitled hereunder by
virtue of the Merger.
(d) Neither FCC nor the Surviving Corporation (nor any exchange agent
appointed by the Surviving Corporation pursuant to this Section 1.08)
shall be liable to any Shareholder in respect of any Merger
Consideration to which such Shareholder was otherwise entitled
pursuant to this Agreement delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law. If any FCC
Certificates shall not have been surrendered prior to one (1) year
after the Effective Time (or immediately prior to such earlier date on
which any Merger Consideration, if any, in respect of such certificate
would otherwise escheat to or become the property of any governmental
entity), any such Merger Consideration in respect of such certificate
shall, to the extent permitted by applicable law, become the property
of the Surviving Corporation, free and clear of all claims or interest
of any Person previously entitled thereto.
(e) From and after the Effective Time, there shall be no transfers of the
shares of FCC Common Stock on the stock transfer books of the
Surviving Corporation which were outstanding immediately prior to the
Effective Time.
(f) In the event any FCC Certificate shall have been lost, stolen or
destroyed, the Surviving Corporation shall issue in exchange for such
lost, stolen or destroyed certificate, upon the making of an affidavit
of that fact by the holder thereof, such amount of the Merger
Consideration, if any, as may be required pursuant to Section 1.06
hereof; provided, however, that the Surviving Corporation may, in its
discretion and as a condition precedent to the issuance thereof,
require the Shareholder who is the owner of such lost, stolen or
destroyed certificate to deliver a bond in such amount as it may
reasonably direct against any claim that may be made against the
Surviving Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section 1.09 Taking of Necessary Action; Further Action. If at any time after
the Effective Time, any further action is necessary or desirable to carry out
the purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers
and franchises of FCC, UTG and the officers and directors of the UTG are fully
authorized in the name of UTG or otherwise to take, and will take, all such
lawful and necessary action.
Article II.
REPRESENTATIONS AND WARRANTIES OF FCC
FCC hereby represents and warrants to UTG that, except as disclosed in the
FCC Filed SEC Reports (as defined below):
Section 2.01 Organization, Standing and Power; Subsidiaries.
(a) FCC is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia and has the
corporate power to own its properties and to carry on its business as
now being conducted. Each subsidiary of FCC is a corporation or other
organization duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization,
has the requisite corporate or other power and authority to own, lease
and operate its properties and to carry on its business as is now
being conducted, except where the failure to be so organized, existing
and in good standing or to have such power and authority would not
reasonably be expected to have a Material Adverse Effect on FCC. For
purposes of this Agreement, the term "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
impact on (a) the financial position, business, or results of
operations of such Party and its subsidiaries (though with respect to
UTG, excluding FCC and its subsidiaries), taken as a whole, or (b) the
ability of such Party to perform its obligations under this Agreement
or to consummate the Merger, other than any event, change or
occurrence relating to (i) the United States economy, the regional
economy in which such Party conducts business or the securities
markets in general or (ii) this Agreement or the transactions
contemplated hereby or announcement hereof.
(b) Each of FCC and its subsidiaries is duly qualified and in good
standing to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its properties make such
qualification necessary other than in such jurisdictions where the
failure so to qualify or to be in good standing would not reasonably
be expected to have a Material Adverse Effect on FCC. FCC has made
available to UTG a true and correct copy of its articles of
incorporation and bylaws, each as amended to date and in full force
and effect on the date hereof.
Section 2.02 Capital Structure.
(a) The authorized capital stock of FCC consists of 62,500 shares of FCC
Common Stock, of which 54,385 shares are issued and outstanding as of
the date hereof (reflecting the 1 for 400 reverse stock split approved
by FCC's Board of Directors on March 27, 1997, but for which FCC did
not obtain shareholder approval or file an amendment to its articles
of incorporation). All outstanding shares of FCC Common Stock are duly
authorized, validly issued, fully paid and nonassessable and free of
any preemptive rights.
(b) (i) FCC does not have any stock option plan or other stock-related
plan providing for equity compensation of any person, (ii) there are
no options, warrants, calls, rights, commitments or agreements of any
character, written or oral, to which FCC is a party or by which it is
bound obligating it to issue, deliver, sell, repurchase or redeem, or
cause to be issued, delivered, sold, repurchased or redeemed, any
shares of FCC Common Stock, (iii) FCC is not obligated to grant,
extend, accelerate the vesting of, change the price of, otherwise
amend or enter into any option, warrant, call, right, commitment or
agreement upon the closing of the transactions contemplated hereby or
upon the occurrence of any other event, and (iv) no bonds, debentures,
notes or other indebtedness of FCC exists having the right to vote on
any matters on which holders of capital stock of FCC may vote.
Section 2.03 Authority; No Conflicts.
(a) Subject, in the case of the consummation of the Merger, to the FCC
Shareholder Approval, any approvals or clearances required under the
applicable insurance laws of any state, the filings contemplated by
Section 1.07 and the filing of the Plan of Merger, and related
articles of merger, with the Virginia State Corporation Commission and
the Illinois Secretary of State, (i) FCC has all requisite power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby, (ii) the execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on
the part of FCC and no further action is required on the part of FCC
to authorize this Agreement and the transactions contemplated hereby,
(iii) this Agreement, the Plan of Merger and the Merger have been
unanimously approved and adopted by the Board of Directors of FCC in
accordance with Virginia law, and the articles of incorporation and
bylaws of FCC, and (iv) this Agreement has been duly executed and
delivered by FCC, and assuming the due authorization, execution and
delivery by the other Party hereto, constitutes the valid and binding
obligation of FCC, enforceable against it in accordance with its
terms, except as such enforceability may be subject to the laws of
general application relating to bankruptcy, insolvency and the relief
of debtors and rules of law governing specific performance, injunctive
relief or other equitable remedies.
(b) The execution and delivery by FCC of this Agreement and the
consummation of the transactions contemplated hereby will not conflict
with or result in any violation of or default under (with or without
notice or lapse of time, or both) or give rise to a right of
termination, cancellation, modification or acceleration of any
obligation or loss of any benefit under (any such event, a "Conflict")
(i) any provision of the articles of incorporation or bylaws of FCC,
(ii) except as would not reasonably be expected to have a Material
Adverse Effect on FCC, any mortgage, indenture, lease, contract,
covenant or other agreement, instrument or commitment, permit,
concession, franchise or license (individually a "Contract") to which
FCC or any of its subsidiaries or any of their respective properties
or assets (including intangible assets), is subject, or (iii) except
as would not reasonably be expected to have a Material Adverse Effect
on FCC, any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to FCC or any of its subsidiaries or any of
their respective properties or assets (tangible and intangible).
Section 2.04 Reports and Financial Statements.
(a) FCC has filed all required registration statements, prospectuses,
reports, schedules, forms, statements and other documents required to
be filed by it with the SEC since December 31, 1998 (collectively, the
"FCC SEC Reports"). No subsidiary of FCC is required to file
any form, report, registration statement, prospectus or other document
with the SEC. None of the FCC SEC Reports, as of their respective
dates (and, if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing), contained or will
contain any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. All of such
FCC SEC Reports, as of their respective dates (and as of the date of
any amendment to the respective FCC SEC Report), complied (and with
respect to FCC SEC Reports filed after the date hereof, will comply)
as to form in all material respects with the applicable requirements
of the Securities Act of 1933, as amended (the "1933 Act"), and
the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the rules and regulations promulgated thereunder.
(b) Each of the financial statements (including the related notes)
included or incorporated by reference in the FCC SEC Reports presents
fairly, in all material respects, the consolidated financial position
and consolidated results of operations and cash flows of FCC and its
consolidated subsidiaries as of the respective dates or for the
respective periods set forth therein, all in conformity with United
States generally accepted accounting principles ("GAAP") consistently
applied during the periods involved except as otherwise noted therein,
and subject, in the case of the unaudited interim financial statements
of FCC, to the absence of notes and normal year-end adjustments that
have not been and are not expected to be material in amount. Except as
disclosed in the FCC SEC Reports filed and publicly available prior to
the date hereof (the "FCC Filed SEC Reports"), FCC and its
subsidiaries have not incurred any liabilities that are of a nature
that would be required to be disclosed on a balance sheet of FCC and
its subsidiaries or the footnotes thereto prepared in conformity with
GAAP, other than (A) liabilities incurred in the ordinary course of
business, (B) liabilities incurred in accordance with Section 4.01, or
(C) liabilities that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on FCC.
Section 2.05 Information Supplied. The information supplied by FCC for inclusion
or incorporated by reference in (A) the Schedule 13E-3 or any amendment or
supplement thereto will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, and (B) the Proxy Statement or any amendment or
supplement thereto to be sent to the Shareholders in connection with the
Shareholders' Meeting will not, on the date the Proxy Statement is first mailed
to the Shareholders or at the time of the Shareholders' Meeting or at the
Effective Time, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Proxy Statement and the Schedule 13E-3 will comply as
to form in all material respects with the requirements of the 1934 Act and the
1933 Act and the regulations promulgated thereunder. Notwithstanding the
foregoing, no representation or warranty is made with respect to statements made
or incorporated by reference in the Schedule 13E-3 or the Proxy Statement based
on information supplied by or on behalf of UTG for inclusion or incorporation by
reference.
Section 2.06 Absence of Changes or Events. Except for liabilities permitted to
be incurred in accordance with this Agreement or the transactions contemplated
hereby, since December 31, 2000, FCC and its subsidiaries have conducted their
business only in the ordinary course and in a manner consistent with past
practice and, since December 31, 2000, there have not been any changes,
circumstances or events which, individually or in the aggregate, have had, or
would reasonably be expected to have, a Material Adverse Effect on FCC
Section 2.07 Litigation; Compliance with Laws.
(a) There are no actions pending or, to the knowledge of FCC, threatened,
against or affecting FCC or any subsidiary of FCC or any property or
asset of FCC or any subsidiary of FCC which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect on FCC, nor are there any judgments, decrees, injunctions,
rules or orders of any Governmental Entity (as defined below) or
arbitrator outstanding against FCC or any subsidiary of FCC which,
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect on FCC. As used in this Agreement, the term
"Governmental Entity" shall include any supranational,
national, state, municipal, local or foreign government, any
instrumentality, subdivision, court, administrative agency or
commission or other authority thereof, or any quasi-governmental or
private body exercising any regulatory, taxing, importing or other
governmental or quasi-governmental authority.
(b) Except as, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on FCC, FCC and its
subsidiaries hold all permits, licenses, franchises, variances,
exemptions, orders and approvals of all Governmental Entities which
are necessary for the operation of the businesses as now being
conducted of FCC and its subsidiaries, taken as a whole (the "FCC
Permits"), and no suspension or cancellation of any of the FCC Permits
is pending or, to the knowledge of FCC, threatened. FCC and its
subsidiaries are in compliance with the terms of the FCC Permits,
except where the failure to so comply, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect on FCC. Neither FCC nor its subsidiaries is in violation of,
and FCC and its subsidiaries have not received any notices of
violations with respect to, any laws, statutes, ordinances, rules or
regulations of any Governmental Entity, except for violations which,
individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect on FCC.
Section 2.08 Brokers' and Finders' Fees. FCC has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby, except for compensation payable to the
Financial Advisor (as defined in Section 5.03(c)).
Section 2.09 Representations Complete. Neither any of the representations or
warranties made by FCC (as modified by the FCC SEC Reports) in this Agreement,
nor any statements made in any exhibit, schedule or certificate furnished by FCC
pursuant to this Agreement, contains or will contain at the Effective Time, any
untrue statement of a material fact, or omits or will omit at the Effective Time
to state any material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which they were made,
not misleading.
Article III.
REPRESENTATIONS AND WARRANTIES OF UTG
UTG hereby represents and warrants to FCC that, except as disclosed in all
registration statements, prospectuses, reports, schedules, forms and other
documents filed by UTG with the SEC since December 31, 1998 and prior to the
date hereof (the "UTG Filed SEC Reports"):
Section 3.01 Organization, Standing and Power; Subsidiaries.
(a) UTG is a corporation duly organized, validly existing and in good
standing under the laws of the State of Illinois and has the corporate
power to own its properties and to carry on its business as now being
conducted. Each subsidiary of UTG (other than FCC or any subsidiary of
FCC) is a corporation or other organization duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has the requisite corporate or other
power and authority to own, lease and operate its properties and to
carry on its business as is now being conducted, except where the
failure to be so organized, existing and in good standing or to have
such power and authority would not reasonably be expected to have a
Material Adverse Effect on UTG.
(b) Each of UTG and its subsidiaries (other than FCC and FCC's
subsidiaries) is duly qualified and in good standing to do business in
each jurisdiction in which the nature of its business or the ownership
or leasing of its properties make such qualification necessary other
than in such jurisdictions where the failure so to qualify or to be in
good standing would not reasonably be expected to have a Material
Adverse Effect on UTG.
Section 3.02 Authority; No Conflicts.
(a) Subject, in the case of the consummation of the Merger, to any
approvals or clearances required under the applicable insurance laws
of any state, the filings contemplated by Section 1.07 and the filing
of the Plan of Merger, and related articles of merger, with the
Virginia State Corporation Commission and the Illinois Secretary of
State, (i) UTG has all requisite power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby,
(ii) the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of UTG and no further
action is required on the part of UTG to authorize the Agreement and
the transactions contemplated hereby, (iii) this Agreement, the Plan
of Merger and the Merger have been unanimously approved and adopted by
the Board of Directors of UTG in accordance with Illinois law, and the
articles of incorporation and bylaws of UTG, and (iv) this Agreement
has been duly executed and delivered by UTG, and assuming the due
authorization, execution and delivery by the other Party hereto,
constitutes the valid and binding obligation of UTG, enforceable
against it in accordance with its terms, except as such enforceability
may be subject to the laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable
remedies.
(b) The execution and delivery by UTG of this Agreement and the
consummation of the transactions contemplated hereby will not result
in a Conflict under (i) any provision of the articles of incorporation
or bylaws of UTG, (ii) except as would not reasonably be expected to
have a Material Adverse Effect on UTG, any Contract to which UTG or
any of its subsidiaries or any of their respective properties or
assets (including intangible assets), is subject, or (iii) except as
would not reasonably be expected to have a Material Adverse Effect on
UTG, any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to UTG or any of its subsidiaries (other than
FCC or any FCC subsidiary) or any of their respective properties or
assets (tangible and intangible).
Section 3.03 Information Supplied. The information supplied by UTG for inclusion
or incorporated by reference in (A) the Schedule 13E-3 or any amendment or
supplement thereto will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, and (B) the Proxy Statement or any amendment or
supplement thereto to be sent to the Shareholders in connection with the
Shareholders' Meeting will not, on the date the Proxy Statement is first mailed
to the Shareholders or at the time of the Shareholders' Meeting or at the
Effective Time, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Schedule 13E-3 will comply as to form in all material
respects with the requirements of the 1934 Act and the regulations promulgated
thereunder. Notwithstanding the foregoing, no representation or warranty is made
with respect to statements made or incorporated by reference in the Schedule
13E3 or the Proxy Statement based on information supplied by or on behalf of FCC
for inclusion or incorporation by reference.
Section 3.04 Capital Resources. UTG has sufficient capital resources to pay the
total Merger Consideration and to consummate all of the transactions
contemplated by this Agreement and the Plan of Merger.
Section 3.05 Brokers' and Finders' Fees. UTG has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with the Agreement or
any transaction contemplated hereby.
Section 3.06 Representations Complete. Neither any of the representations or
warranties made by UTG (as modified by the UTG Filed SEC Reports) in this
Agreement, nor any statements made in any exhibit, schedule or certificate
furnished by UTG pursuant to this Agreement, contains or will contain at the
Effective Time, any untrue statement of a material fact, or omits or will omit
at the Effective Time to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which they were made, not misleading.
Article IV.
COVENANTS
Section 4.01 Conduct of Business of FCC Prior to the Effective Time. During the
period from the date of this Agreement and continuing until the Effective Time,
FCC agrees as to itself and its subsidiaries that (except as expressly
contemplated or permitted by this Agreement or to the extent that UTG shall
otherwise consent in writing, such consent not to be unreasonably withheld) FCC
and its subsidiaries shall carry on their respective businesses in the usual,
regular and ordinary course in all material respects, in substantially the same
manner as heretofore conducted, and shall use their reasonable best efforts to
preserve intact their present lines of business and preserve their relationships
with customers and others having business dealings with them.
Section 4.02 Governmental Filings. Each Party shall file all reports required to
be filed by it with the SEC (and all other Governmental Entities) between the
date of this Agreement and the Effective Time and shall, if requested by the
other Party and to the extent permitted by law or regulation or any applicable
confidentiality agreement, deliver to the other Party copies of all such reports
promptly after such request.
Section 4.03 Access to Information. FCC shall afford UTG and its accountants,
counsel and other representatives, reasonable access during the period prior to
the Effective Time to (i) all of FCC's properties, books, contracts, commitments
and records, (ii) all other information concerning the business, properties and
personnel (subject to restrictions imposed by applicable law) of FCC as UTG may
reasonably request, and (iii) all employees of FCC as identified by UTG. FCC
agrees to provide to UTG and its accountants, counsel and other representatives
copies of internal financial statements (including tax returns and supporting
documentation) promptly upon request. No information or knowledge obtained in
any investigation pursuant to this Section 4.03 shall affect or be deemed to
modify any representation or warranty contained herein or the conditions to the
obligations of the parties to consummate the Merger in accordance with the terms
and provisions hereof.
Section 4.04 Fees and Expenses. Regardless whether the Merger is consummated,
FCC and UTG will be responsible for and bear all of their own costs and expenses
incurred at any time in connection with pursuing or consummating the Merger,
except expenses incurred in connection with the filing, printing and mailing of
the Proxy Statement and the Schedule 13E-3, which shall be shared equally by FCC
and UTG.
Section 4.05 Public Disclosure. The initial press release pertaining to the
transactions contemplated by this Agreement shall be a joint press release and
thereafter each Party shall consult with the other before issuing communications
to employees regarding the transactions contemplated by this Agreement or any
press release or otherwise making any public statements with respect to this
Agreement or the Merger and shall not issue any such press release or make any
such public statement prior to such consultation, except as may be required by
law or any listing agreement with Nasdaq. FCC and UTG shall each provide to the
other a copy of each press release or other public statement relating to its
business reasonably in advance of making such release or statement.
Section 4.06 Consents. FCC shall use commercially reasonable efforts to obtain
the consents, waivers and approvals under any of the contracts to which FCC or
its subsidiaries are parties to the extent deemed appropriate or necessary by
any Party in connection with the Merger so as to preserve all rights of, and
benefits to, the Surviving Corporation thereunder from and after the Effective
Time.
Section 4.07 Indemnification. If the Merger is consummated, UTG agrees to assume
and be responsible for all obligations of FCC as of the Effective Time to
provide indemnification from liabilities for acts or omissions occurring at or
prior to the Effective Time in favor of the current or former directors or
officers of FCC as provided in FCC's articles of incorporation or bylaws, as in
effect on the date of this Agreement, for a period of six (6) years after the
Effective Time.
Article V.
CONDITIONS TO THE MERGER
Section 5.01 Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of FCC and UTG to effect the Merger shall be subject to
the satisfaction at or prior to the Effective Time of the following conditions:
(a) FCC Shareholder Approval. FCC shall have received the FCC Shareholder
Approval.
(b) No Order. No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation,
executive order, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and which has the effect
of making the Merger illegal or otherwise prohibiting consummation of
the Merger.
(c) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Merger shall be in
effect, nor shall any proceeding brought by an administrative agency
or commission or other governmental authority or instrumentality,
domestic or foreign, seeking any of the foregoing be pending.
Section 5.02 Conditions to the Obligations of UTG. The obligation of UTG to
effect the Merger shall be subject to the satisfaction at or prior to the
Effective Time of each of the following conditions, any of which may be waived,
in writing, exclusively by UTG:
(a) Representations, Warranties and Covenants. (i) The representations and
warranties of FCC in this Agreement shall have been true and correct
in all material respects on the date they were made and shall be true
and correct in all material respects on and as of the Closing Date as
though such representations and warranties were made on and as of such
time (other than the representations and warranties of FCC as of a
specified date, which will be true and correct in all material
respects as of such date), and (ii) FCC shall have performed and
complied in all material respects with all covenants and obligations
under this Agreement required to be performed and complied with by FCC
as of the Closing.
(b) Governmental Approval. Approvals from any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission (if any)
deemed appropriate or necessary by UTG shall have been timely
obtained.
(c) Litigation. There shall be no action, suit, claim or proceeding of any
nature pending, or overtly threatened, against FCC or its
subsidiaries, their respective properties or any of their respective
officers or directors, arising out of, or in any way connected with,
the Merger or the other transactions contemplated by the terms of this
Agreement.
(d) Third Party Consents. UTG shall have received copies of all consents
or approvals of third parties it deems necessary or appropriate.
(e) Certificate of FCC. UTG shall have received a certificate, validly
executed by or on behalf of FCC to the effect that, as of the Closing:
(i) all representations and warranties made by FCC in this Agreement
are true and correct in all material respects on and as of the
Closing Date as though such representations and warranties were
made on and as of such time (other than the representations and
warranties of FCC as of a specified date, which will be true and
correct in all material respects as of such date); and
(ii) all covenants and obligations under this Agreement to be
performed by FCC on or before the Closing have been so performed
in all material respects.
(f) Certificate of Secretary of FCC. UTG shall have received a
certificate, validly executed by the Secretary of FCC, certifying as
to (i) the terms and effectiveness the articles of incorporation and
the bylaws of FCC, (ii) the valid adoption of resolutions of the Board
of Directors of FCC and the Shareholders approving this Agreement and
the approval of the transactions contemplated hereby and that such
approvals are in full force and effect without modification, (iii) the
incumbency of the officers of FCC executing this Agreement and any
agreements contemplated hereby or other instruments or certificates
relating hereto or thereto.
(g) No Material Adverse Effect - No event, condition or circumstances
shall have occurred or be discovered after the date of this Agreement
which has had, or is reasonably likely to have, a Material Adverse
Effect on FCC.
Section 5.03 Conditions to Obligations of FCC. The obligations of FCC to
consummate and effect this Agreement and the transactions contemplated hereby
shall be subject to the satisfaction at or prior to the Effective Time of each
of the following conditions, any of which may be waived, in writing, exclusively
by FCC:
(a) Representations, Warranties and Covenants. (i) The representations and
warranties of UTG in this Agreement (other than the representations
and warranties of UTG as of a specified date, which will be true and
correct in all material respects as of such date) shall be true and
correct in all material respects on the date they were made and shall
be true and correct in all material respects on and as of the Closing
Date as though such representations and warranties were made on and as
of such time, and (ii) UTG shall have performed and complied in all
material respects with all covenants and obligations of this Agreement
required to be performed and complied with by such parties as of the
Closing.
(b) Certificate of UTG. FCC shall have received a certificate executed on
behalf of UTG by a corporate officer to the effect that, as of the
Closing:
(i) all representations and warranties made by UTG in this Agreement
(other than the representations and warranties of UTG as of a
specified date, which will be true and correct as of such date)
are true and correct in all material respects on and as of the
Closing Date as though such representations and warranties were
made on and as of such time; and
(ii) all covenants and obligations under this Agreement to be
performed by UTG on or before the Closing have been so performed
in all material respects.
(c) Fairness Opinion - The Board of Directors of FCC shall have received
an opinion from Morgan Keegan and Company, Inc. (the "Financial
Advisor") that the transactions contemplated hereby, including the
Merger Consideration to be paid on consummation of the Merger, is fair
from a financial standpoint as to FCC and the Shareholders.
(d) Governmental Approval. Approvals from any court, administrative agency
or commission or other federal, state, county, local or other foreign
governmental authority, instrumentality, agency or commission (if any)
deemed appropriate or necessary by FCC shall have been timely
obtained.
Article VI.
TERMINATION, AMENDMENT AND WAIVER
Section 6.01 Termination. This Agreement may be terminated and the Merger
abandoned at any time prior to the Closing (including after receipt of the FCC
Shareholder Approval):
(a) by mutual, written agreement of FCC and UTG;
(b) by FCC or by UTG, if the Closing Date shall not have occurred by
December 31, 2001;
(c) by FCC or by UTG upon the failure of any condition set out in Section
5.01;
(d) by UTG if there shall be any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed
applicable to the Merger by any Governmental Entity, which would (i)
prohibit UTG's ownership or operation of any portion of the business
of FCC or its subsidiaries, or (ii) compel UTG to dispose of or hold
separate all or a material portion of the business or assets of the
FCC, its subsidiaries or UTG as a result of the Merger; or
(e) by UTG if UTG is not in material breach of its obligations under this
Agreement and there has been any event, condition or circumstances
occur or that is discovered after the date of this Agreement which has
had, or is reasonably likely to have, a Material Adverse Effect on
FCC.
Section 6.02 Effect of Termination. In the event of termination of this
Agreement as provided in Section 6.01, this Agreement shall forthwith become
void and there shall be no liability or obligation on the part of UTG, FCC or
the Shareholders, or their respective officers, directors or shareholders, if
applicable; provided, however, that, the provisions of Section 4.04 and 4.05,
Article VII and this Section 6.02 shall remain in full force and effect and
survive any termination of this Agreement pursuant to the terms of this Article
VI.
Section 6.03 Amendment. This Agreement may be amended by the Parties at any time
by execution of an instrument in writing signed on behalf of both Parties.
Section 6.04 Extension; Waiver. At any time prior to the Closing, UTG, on the
one hand, and FCC, on the other hand, may, to the extent legally allowed, (i)
extend the time for the performance of any of the obligations of the other
Party, (ii) waive any inaccuracies in the representations and warranties made to
such Party contained herein or in any document delivered pursuant hereto, and
(iii) waive compliance with any of the agreements or conditions for the benefit
of such Party contained herein. Any agreement on the part of a Party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such Party.
Article VII.
GENERAL PROVISIONS
Section 7.01 Non-Survival of Representations, Warranties and Agreements. None of
the representations, warranties, covenants and other agreements in this
Agreement or in any instrument delivered pursuant to this Agreement, including
any rights arising out of any breach of such representations, warranties,
covenants, agreements and other provisions, shall survive the Effective Time,
except for those covenants, agreements and other provisions contained herein
that by their terms apply or are to be performed in whole or in part after the
Effective Time, Section 4.04 and this Article VII.
Section 7.02 Notices. All notices and other communications hereunder shall be in
writing, shall be effective when received, and shall in any event be deemed
received and effectively given (i) upon delivery, if delivered personally or by
commercial messenger or courier service, (ii) three days after deposit in the
U.S. mail, if delivered by registered or certified mail (postage prepaid, return
receipt requested), (iii) one business day after the day of facsimile
transmission, if sent by facsimile with confirming copy by U.S. mail (first
class, postage prepaid), or (iv) one business day after the business day of
deposit with Federal Express or similar carrier for overnight delivery, freight
prepaid, in each case to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to UTG, to:
United Trust Group, Inc.
5250 South Sixth Street
Springfield, Illinois 62703
Attention: Chief Executive Officer
Telephone No.: 217/241-6300
Facsimile No.: 217/241-6578
(b) if to FCC, to:
First Commonwealth Corporation
5250 South Sixth Street
Springfield, Illinois 62703
Attention: Chief Executive Officer
Telephone No.: 217/241-6300
Facsimile No.: 217/241-6578
Section 7.03 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be deemed originals, shall be considered one
and the same agreement and shall become effective when one or more counterparts
have been signed by each of the Parties and delivered to the other Party, it
being understood that both Parties need not sign the same counterpart.
Section 7.04 Entire Agreement, Assignment. This Agreement, the exhibits hereto,
and the documents and instruments and other agreements among the Parties
referenced herein: (i) constitute the entire agreement among the Parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings both written and oral, among the Parties with respect to the
subject matter hereof, (ii) are not intended to confer upon any other person any
rights or remedies hereunder, and (iii) shall not be assigned by operation of
law or otherwise, except that UTG may assign its rights and delegate its
obligations hereunder to any entity or entities that are wholly-owned by UTG,
directly or indirectly.
Section 7.05 Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as to
reasonably effect the intent of the Parties. The Parties further agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
Section 7.06 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, as applied to contracts
entered into and wholly to be performed within such state by residents thereof.
Each of the Parties irrevocably consents to the exclusive jurisdiction and venue
of the federal district courts located within the State of Illinois, in
connection with any matter based upon or arising out of this Agreement or the
matters contemplated herein unless otherwise provided herein, agrees that
process may be served upon them in any manner authorized by the laws of the
State of Illinois for such persons and waives and covenants not to assert or
plead any objection which they might otherwise have to such jurisdiction, venue
and such process.
[SIGNATURE PAGE FOLLOWS]
15091121v4
IN WITNESS WHEREOF, UTG and FCC have caused this Agreement to be signed,
all as of the date first written above.
UNITED TRUST GROUP, INC.
By:________________________________________
Title: President
FIRST COMMONWEALTH CORPORATION
By:________________________________________
Title: Secretary
[Signature Page to the Agreement and Plan of Reorganization
between United Trust Group, Inc. and First Commonwealth Corporation]
