EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
BY AND AMONG
SFC ACQUISITION CORP.,
NB HOLDINGS CORPORATION
AND
SUPERIOR FEDERAL BANK, F.S.B.
PROVIDING FOR THE ACQUISITION OF THE STOCK OF
SUPERIOR FEDERAL BANK, F.S.B.
BY
SFC ACQUISITION CORP.
DATED AS OF DECEMBER 3, 1997
TABLE OF CONTENTS
ARTICLE I
PURCHASE AND SALE OF SHARES
Page
1.1 General............................................................ 1
1.2 Manner of Payment.................................................. 1
1.3 Delivery of Certificates........................................... 1
1.4 Time and Place of Closing.......................................... 2
1.5 Closing Date....................................................... 2
1.6 Goodwill Litigation; Further Consideration......................... 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 Organization and Good Standing of Purchaser........................ 2
2.2 Authorization of Agreement......................................... 3
2.3 No Violation....................................................... 3
2.4 Consents and Approvals of Governmental Authorities................. 3
2.5 Legal Proceedings.................................................. 4
2.6 Purchase for Investment............................................ 4
2.7 Disclosure......................................................... 4
2.8 Other Matters...................................................... 4
2.9 Brokers and Finders................................................ 4
2.10 Financing.......................................................... 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND SUPERIOR
3.1 Capitalization..................................................... 5
3.2 Ownership of Shares................................................ 5
3.3 Organization and Good Standing of Superior......................... 5
3.4 Subsidiaries....................................................... 6
3.5 Authorization of Agreement......................................... 6
3.6 No Violation....................................................... 6
3.7 Consents and Approvals of Governmental Authorities................. 7
3.8 Legal Proceedings.................................................. 7
3.9 Compliance with Laws............................................... 7
3.10 Financial Statements............................................... 8
3.11 No Adverse Change.................................................. 8
ii
3.12 Undisclosed Liabilities............................................ 8
3.13 Taxes.............................................................. 9
3.14 Title to Properties................................................ 10
3.15 Software........................................................... 10
3.16 Trademarks and Tradenames.......................................... 10
3.17 Properties......................................................... 11
3.18 Contracts.......................................................... 12
3.19 Benefit Plans...................................................... 13
3.20 Employees.......................................................... 14
3.21 Labor.............................................................. 14
3.22 Environmental Matters.............................................. 14
3.23 Insurance.......................................................... 15
3.24 Disclosure......................................................... 15
3.25 Other Matters...................................................... 16
3.26 Brokers and Finders................................................ 16
ARTICLE IV
CONDUCT OF BUSINESS PRIOR TO THE CLOSING
4.1 Conduct Prior to Closing............................................ 16
4.2 Forbearances........................................................ 17
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Current Information................................................. 19
5.2 Access; Information................................................. 19
5.3 Regulatory Matters.................................................. 20
5.4 Employee Benefits and Other Matters................................. 20
5.5 Certain Tax Matters................................................. 22
5.6 Press Releases...................................................... 27
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions Precedent to Obligations of Parties Hereto............... 27
6.2 Conditions Precedent to Obligations of Seller and Superior.......... 28
6.3 Conditions Precedent to Obligations of Purchaser.................... 28
ARTICLE VII
CLOSING DELIVERIES
7.1 Seller's Deliveries................................................. 29
iii
7.2 Purchaser's Deliveries.............................................. 29
ARTICLE VIII
INDEMNITY
8.1 Indemnity........................................................... 30
8.2 Claims.............................................................. 31
8.3 Survival............................................................ 32
ARTICLE IX
TERMINATION
9.1 Termination......................................................... 33
ARTICLE X
CERTAIN DEFINITIONS
ARTICLE XI
MISCELLANEOUS
11.1 Third-Party Beneficiaries......................................... 39
11.2 Expenses.......................................................... 39
11.3 Notices........................................................... 39
11.4 Captions.......................................................... 40
11.5 Further Assurances................................................ 40
11.6 Entire Agreement.................................................. 40
11.7 Amendment; Waiver................................................. 40
11.8 Assignment........................................................ 41
11.9 Successors........................................................ 41
11.10 Severability...................................................... 41
11.11 Governing Law..................................................... 41
11.12 Counterparts...................................................... 41
iv
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (including the Schedules hereto, this "Agreement")
dated as of December 3, 1997 by and among NB Holdings Corporation, a bank
holding company and a Delaware corporation ("Seller"), Superior Federal Bank,
F.S.B., a federal savings bank ("Superior"), and SFC Acquisition Corp., a
Delaware corporation ("Purchaser").
RECITALS
WHEREAS, Purchaser wishes to acquire Superior upon the terms and conditions set
forth in this Agreement; and
WHEREAS, Seller wishes to sell Superior upon the terms and conditions set forth
in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 General. Subject to the terms and conditions of this Agreement, at
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the Closing (as hereinafter defined), Seller shall sell, assign, transfer and
convey unto Purchaser 1,000 shares of common stock, par value $1.00 per share,
of Superior (the "Shares"), which shares constitute all of the issued and
outstanding capital stock of Superior, and Purchaser shall purchase the Shares
for an aggregate purchase price of $162.5 million (the "Purchase Price"),
payable in cash, subject to any additional consideration payable pursuant to
Section 1.6 hereof.
1.2 Manner of Payment. The Purchase Price shall be paid by Purchaser at
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the Closing by wire transfer of immediately available funds to the account or
accounts designated by Seller.
1.3 Delivery of Certificates. Against receipt of the Purchase Price, at
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the Closing, Seller shall deliver to Purchaser the certificates for the Shares,
together with such stock powers as will entitle Purchaser to immediate
registration of the transfer of the Shares in its name and as will convey the
Shares to Purchaser free and clear of all liens and
encumbrances (other than transfer restrictions imposed by applicable securities
laws).
1.4 Time and Place of Closing. The closing of the transactions
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contemplated hereby (the "Closing") shall take place at 10:00 a.m. on the
Closing Date (as hereinafter defined) at the offices of Seller in Charlotte,
North Carolina or at such other time and place as may be mutually agreed upon by
the parties.
1.5 Closing Date. Unless otherwise mutually agreed upon in writing by the
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parties, subject to the terms and conditions hereof, the "Closing Date" shall be
the first business day following the last to occur of: (i) the effective date of
the last order, approval, or exemption of any federal or state regulatory agency
approving or exempting the transactions contemplated hereby, if such action is
required; and (ii) the expiration of all required waiting periods after the
filing of all notices to all federal or state regulatory agencies required for
consummation of the transactions contemplated hereby.
1.6 Goodwill Litigation; Further Consideration. On the Closing Date,
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Purchaser shall become the legal successor to Seller's right and interest in the
related proceedings brought under the action Superior Federal Bank, F.S.B. vs.
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United States (No. 95-769C) (the "Goodwill Litigation"). Within five (5)
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business days following Purchaser's receipt of payment pursuant to irrevocable
settlement or other resolution of the Goodwill Litigation by final judgment
subject to no further appeal, and, as further consideration for the sale of the
Shares to Purchaser, Purchaser shall pay Seller fifty percent (50%) of the "net
recovery" from the Goodwill Litigation. "Net recovery" shall be the gross
aggregate amount Purchaser receives from such settlement or resolution, net of
the total litigation expenses incurred and paid by Purchaser after the Closing
Date. "Total litigation expenses" shall include, without limitation, attorneys'
fees, court costs, expenses, fees of experts and consultants, filing fees and
all other costs reasonably incurred in prosecution of the Goodwill Litigation.
Purchaser agrees to employ as counsel for prosecution of the Goodwill Litigation
the firm of Cooper & Carvin, PLLC, provided, however, that Purchaser and Seller
may mutually agree at any time to retain other or additional counsel.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
2.1 Organization and Good Standing of Purchaser. Purchaser is a
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corporation duly organized, validly existing and in good standing under the laws
of Delaware. Purchaser is duly qualified to do business as a foreign
corporation under the laws of each jurisdiction where it is required to be
qualified or where it would be required to be qualified to conduct its business,
except where failure to so qualify would not have a Material Adverse Effect.
2.2 Authorization of Agreement. Purchaser has the full right, power and
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authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action.
This Agreement, when executed by the parties hereto, constitutes or will
constitute a legal, valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, subject to: (i) applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application, heretofore or hereafter enacted or in effect, affecting the rights
and remedies of creditors generally and (ii) the exercise of judicial or
administrative discretion in accordance with general equitable principles,
including, without limitation, as to the availability of the remedy of specific
performance or other injunctive relief.
2.3 No Violation. The authorization, execution, delivery and performance
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of this Agreement, the consummation of the transactions contemplated hereunder,
and the compliance with the terms, conditions and provisions hereof and thereof
by Purchaser, do not and will not: (i) violate, conflict with, result in a
breach or termination of, constitute a default under, require any notice,
approval or consent under, give rise to a right of termination of, or accelerate
the performance required by, any term or provision of any agreement, commitment
or other instrument, or any order, judgment or decree to which either Purchaser
is a party or by which Purchaser is bound that would have a Material Adverse
Effect; (ii) violate any provision of the Certificate of Incorporation or Bylaws
of Purchaser; or (iii) violate, result in a breach of, conflict with or require
any notice, filing or consent under, any statute, rule, regulation or other
provision of law, or any order, judgment or other direction of a court or other
tribunal, or any other governmental requirement, permit, registration, license
or authorization applicable to Purchaser that would have a Material Adverse
Effect or that would threaten or impede the consummation of the transactions
contemplated by this Agreement.
2.4 Consents and Approvals of Governmental Authorities. Except as set
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forth on Schedule 2.4 hereto, no consent, license, approval or authorization of,
or designation, declaration or filing with, any governmental or regulatory
agency or authority is required on the part of Purchaser in connection with the
authorization, execution, delivery and performance of this Agreement. Purchaser
is not aware of any reason why any such required consent or approval will not be
received.
2.5 Legal Proceedings. There are no legal, administrative, arbitral or
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other actions, claims, suits or proceedings or investigations instituted or
pending or, to the knowledge of Purchaser's management, threatened against
Purchaser, or against any property, asset, interest or right of Purchaser, that
might reasonably be expected to have a Material Adverse Effect or that might
reasonably be expected to threaten or impede the consummation of the
transactions contemplated by this Agreement.
2.6 Purchase for Investment. Purchaser is purchasing the Shares for
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investment and for the purpose of acquiring Superior and its business, and not
for the purpose of any resale or distribution of the Shares. Purchaser
acknowledges that the Shares have not been registered under the Securities Act
of 1933, as amended, and may not be sold or otherwise disposed of in the absence
of such registration or the availability of an applicable exemption therefrom.
2.7 Disclosure. No representation or warranty of Purchaser contained in
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this Agreement or in any statement or certificate furnished or to be furnished
to Seller pursuant hereto in connection with the transactions contemplated
hereby contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary to make the statements made
herein or therein, in the light of the circumstances under which they were made,
not misleading.
2.8 Other Matters. Purchaser has not taken and has not agreed to take any
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action, and has no knowledge of any fact or circumstances, that would materially
impede or delay the consummation of the transactions contemplated hereby.
2.9 Brokers and Finders. Other than Keefe, Bruyette & Woods, Inc., neither
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Purchaser nor any of its officers, directors or employees has employed any
broker or finder or incurred any liability for any financial advisory fees,
brokerage fees, commissions or finder's fees, and no broker or finder has acted
directly or indirectly for Purchaser in connection with this Agreement or the
transactions contemplated hereby.
2.10 Financing. Seller acknowledges that Purchaser intends to raise the
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funds required to pay the Purchase Price through a private placement of common
stock of Purchaser (the "Private Placement") and through a public or private
offering of debt instruments of Purchaser and a bank financing (the "Debt
Offering").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND SUPERIOR
Seller and Superior (and, to the extent applicable, Superior on behalf of each
of its Subsidiaries) hereby represents and warrant jointly and severally to
Purchaser as follows:
3.1 Capitalization. The authorized capital stock of Superior consists
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solely of the Shares. No shares of the capital stock of Superior are in the
treasury of Superior. There are no outstanding subscriptions, shares of capital
stock, calls, warrants, options, contract commitments or demands relating to the
capital stock of Superior or other agreements of any character under which
Superior would be obligated to issue or purchase shares of its capital stock.
Superior has no commitments to issue or sell any securities or obligations
convertible into or exchangeable for, or giving any person any right to
subscribe for or acquire from Superior, any shares of its capital stock, and no
securities or obligations evidencing any such rights are outstanding.
3.2 Ownership of Shares. Seller is the legal owner of the Shares, holds
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the Shares of record and beneficially owns the Shares free and clear of all
liens and encumbrances (other than restrictions on transfer imposed by
applicable securities laws). The Shares have been duly and validly issued and
are fully paid, nonassessable and not subject to call. Seller has or will have
full power and authority to sell the Shares to Purchaser at the Closing, and
upon the delivery to Purchaser of the certificates for the Shares and
accompanying instruments pursuant to Section 1.3, Purchaser shall have acquired
good, valid and exclusive title to the Shares free and clear of all liens and
encumbrances (other than restrictions on transfer imposed by applicable
securities laws) and will be entitled to the registration of the Shares in its
name on the books of Superior and entitled to all rights of a shareholder of
Superior evidenced thereby.
3.3 Organization and Good Standing of Superior. Superior is a federal
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stock savings bank chartered under Section 5 of the Home Owners' Loan Act.
Superior is regulated by the Office of Thrift Supervision (the "OTS"), the
Federal Deposit Insurance Corporation (the "FDIC") and the Federal Housing
Finance Board. The deposits of Superior are insured by the Savings Association
Insurance Fund of the FDIC. Superior is a member of the Federal Home Loan Bank
of Dallas, and has purchased all stock and paid all membership and other fees
required in connection therewith. Seller is duly qualified to do business under
the laws of each jurisdiction in which it is conducting business
and where it is required to be so qualified, except where failure to so qualify
would not have a Material Adverse Effect.
3.4 Subsidiaries. The subsidiaries of Superior (other than Superior's
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inactive subsidiaries, Premier Management, Inc. and Superior Financial Services
of Oklahoma, Inc.) are set forth on Schedule 3.4 (individually, a "Subsidiary,"
and collectively, the "Subsidiaries"). Each Subsidiary is a corporation duly
organized and in good standing under the laws of its state of incorporation and
is duly qualified to do business under the laws of each jurisdiction in which it
is conducting business and where it is required to be so qualified, except where
failure to so qualify would not have a Material Adverse Effect. Seller has
provided or will provide Purchaser with copies of the Articles or Certificates
of Incorporation and the Bylaws of each Subsidiary. Seller owns all of the
issued and outstanding stock of each Subsidiary either directly, or indirectly
through ownership of one or more of the Subsidiaries, free and clear of all
liens and encumbrances (other than restrictions on transfer imposed by
applicable securities laws). All of the issued and outstanding capital stock of
each Subsidiary is validly issued, fully paid and non-assessable. There are no
outstanding subscriptions, shares of capital stock, calls, warrants, options,
contract commitments or demands relating to the capital stock of any Subsidiary.
3.5 Authorization of Agreement. Seller has the full right, power and
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authority to enter into and perform this Agreement and to consummate the
transactions contemplated hereunder. The execution, delivery and performance of
this Agreement by Seller have been or will be duly authorized by all necessary
corporate action of Seller. This Agreement, when executed by the parties
hereto, constitutes or will constitute a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject to: (i)
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application, heretofore or hereafter enacted or in effect, affecting the
rights and remedies of creditors generally and (ii) the exercise of judicial or
administrative discretion in accordance with general equitable principles,
including, without limitation, as to the availability of the remedy of specific
performance or other injunctive relief.
3.6 No Violation. The authorization, execution, delivery and performance
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of this Agreement, the consummation of the transactions contemplated hereunder,
and the compliance with the terms, conditions and provisions hereof by Seller do
not and will not: (i) violate, conflict with, result in a breach or termination
of, constitute a default under, require any notice, approval or consent under,
give rise to a right of
termination of, or accelerate the performance required by, any term or provision
of any agreement, commitment or other instrument, or any order, judgment or
decree to which either Seller or Superior is a party or by which Seller,
Superior or any of their respective assets are bound that would have a Material
Adverse Effect; (ii) violate any provision of the Charter or Bylaws of Superior
or any provision of the Certificate of Incorporation or Bylaws of Seller; or
(iii) violate, result in a breach of, conflict with or require any notice,
filing or consent under, any statute, rule, regulation or other provision of
law, or any order, judgment or other direction of a court or other tribunal, or
any governmental requirement, permit, registration, license or authorization
applicable to Seller or Superior that would have a Material Adverse Effect or
that would threaten or impede the consummation of the transactions contemplated
by this Agreement.
3.7 Consents and Approval of Governmental Authorities. No consent, license,
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approval or authorization of, or designation, declaration or filing with, any
governmental or regulatory agency or authority is required on the part of Seller
or Superior in connection with the authorization, execution, delivery and
performance of this Agreement.
3.8 Legal Proceedings. Except as set forth on Schedule 3.8 hereto, there
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are no legal, administrative, arbitral or other actions, claims, suits or
proceedings or investigations instituted or pending or, to the knowledge of the
respective managements of Superior or Seller, threatened against Superior that
might reasonably be expected to have a Material Adverse Effect.
3.9 Compliance with Laws.
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(a) To the knowledge of the respective managements of Seller and Superior,
Superior is in compliance with all laws, rules, regulations, reporting and
licensing requirements and orders applicable to its business or to its
employees conducting its business (including, without limitation, all
applicable banking laws, federal and state securities laws, and laws and
regulations concerning discrimination, truth-in-lending, usury, fair credit
reporting, fair lending, consumer protection, occupational safety, fair
employment practices and fair labor standards, including, without
limitation, the Equal Credit Opportunity Act, the Fair Housing Act, and the
Community Reinvestment Act) and with its internal policies and procedures,
except where the failure to be in
such compliance would not individually or in the aggregate have a Material
Adverse Effect.
(b) Neither Seller nor Superior has received any written notification or
communication from any agency or department of any federal or state
government (i) asserting that Superior is not in compliance with any of the
statutes, regulations, or ordinances which such agency or department
enforces, unless such non-compliance would not have a Material Adverse
Effect; (ii) threatening to revoke any license, franchise, permit or
governmental authorization; (iii) requiring or threatening to require
Superior, or indicating that Superior may be required to enter into a cease
and desist order, agreement (including any capital maintenance agreement)
or memorandum of understanding or any other agreement restricting or
limiting or purporting to restrict or limit in any manner the operations of
Superior, including, without limitation, any restriction on the payment of
dividends; or (iv) directing, restricting or limiting, or purporting to
direct, restrict or limit in any material respect the operations of
Superior.
3.10 Financial Statements. The audited financial statements of Superior
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for the fiscal year ended December 31, 1996 and the unaudited financial
statements of Superior for the quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997 (collectively, the "Superior Financial Statements") present
fairly the financial position, results of operations and cash flows of Superior
at the dates and for the fiscal periods then ended, in accordance with GAAP with
respect to the December 31, 1996 financial statements, and in accordance with
regulatory accounting principles with respect to the March 31, 1997, June 30,
1997 and September 30, 1997 financial statements, subject to normal recurring
adjustments (the effect of which will not individually or in the aggregate have
a Material Adverse Effect). Seller has delivered true and complete copies of
the Superior Financial Statements to Purchaser. Since September 30, 1997,
Superior has not declared, set aside, made or paid any dividend or other
distribution with respect to its capital stock or otherwise purchased or
redeemed directly or indirectly any shares of its capital stock.
3.11 No Adverse Change. Since December 31, 1996, except (i) as
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contemplated by this Agreement or in connection with the transactions
contemplated by this Agreement; or (ii) as disclosed by Seller in any Schedule
to this Agreement, to the knowledge of the respective managements of Superior
and Seller, there has not been any material
adverse change in the business, financial condition, operation, or results of
operation of Superior.
3.12 Undisclosed Liabilities. To the knowledge of the respective
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managements of Superior and Seller, Superior has no material liabilities (and
there is no currently known basis for any action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand (including claims relating to
lender liability of Superior) against Superior giving rise to any such material
liability), except for (i) liabilities set forth on the face of the Superior
Financial Statements (rather than in any notes thereto); (ii) liabilities which
have arisen after September 30, 1997 in the ordinary course of business; or
(iii) liabilities set forth in any Schedule to this Agreement.
3.13 Taxes. Except as set forth on Schedule 3.13 hereto:
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(a) All Tax Returns required to be filed by or on behalf of Superior have
been timely filed, or requests for extensions have been timely filed,
granted and have not expired, for periods ending on or before December 31,
1996, and all such returns filed are complete and accurate in all material
respects.
(b) There is no audit examination, deficiency or refund litigation or
matter that has been raised by a taxing authority with respect to any
previously filed Tax Returns of Superior or any prior Tax payments or
periods that could reasonably be expected to result in a determination the
effect of which would have a Material Adverse Effect. All Taxes due with
respect to completed and settled examinations or concluded litigation have
been paid or adequately reserved for.
(c) Superior has not executed an extension or waiver of any statute of
limitations on the assessment or collection of any Tax due that is
currently in effect.
(d) Adequate provision for any Taxes due or to become due for Superior for
any period or periods through and including September 30, 1997, has been
made and is reflected on the September 30, 1997 financial statements
included in the Superior Financial Statements. Deferred Taxes of Superior
reflected in the Superior Financial Statements are adequate, subject in the
case of interim financial statements to normal recurring year end
adjustments.
(e) Superior has collected and withheld all Taxes which it has been
required to collect or withhold and has timely submitted all such collected
and withheld amounts to the appropriate authorities. Superior is in
compliance with the back-up withholding and information reporting
requirements under the Code and any state, local or foreign laws, and the
rules and regulations thereunder.
(f) Superior has not made any payments, is not obligated to make any
payments, and is not 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 of the Code.
(g) There are no liens with respect to Taxes upon any of the assets of
Superior.
(h) Superior has not filed any consent under Section 341(f) of the Code
concerning collapsible corporations.
(i) Superior does not have and has not had a permanent establishment in any
foreign country, as defined in any applicable tax treaty or convention
between the United States and such foreign country.
3.14 Title to Properties. Except as disclosed in the Superior Financial
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Statements, Superior has good and marketable title, free and clear of all
claims, liens, pledges and encumbrances ("Liens"), other than Permitted
Exceptions, to all its properties and assets whether tangible or intangible,
real, personal or mixed, reflected in the Superior Financial Statements as being
owned by Superior as of the date hereof, except for such defects in title which
would not have a Material Adverse Effect. All buildings, and all fixtures,
equipment and other property and assets, held under leases or subleases by
Superior are held under valid instruments enforceable in accordance with their
respective terms, except where the failure to have such valid and enforceable
instruments would not have a Material Adverse Effect.
"Permitted Exceptions" shall mean (i) mechanic's, materialman's,
warehouseman's and carrier's liens and purchase money security interests arising
in the ordinary course of business or arising by operation of law; (ii) liens
for taxes and assessments not yet payable; (iii) liens for taxes, assessments
and charges and other claims, the validity of which Superior or Seller is
contesting in good faith; and (iv) imperfections of title, liens, security
interests, claims and other charges and encumbrances the existence of which does
not or will not have a Material Adverse Effect.
3.15 Software. Schedule 3.15 hereto contains a list or description by type
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of all operating systems and applications for computer programs and data bases
("Software") which Superior uses or has available for use and plans to use, and
such Software constitutes all the Software which is used to operate the
business of Superior as currently conducted. The owner of such Software is
identified on Schedule 3.15, and Superior has the right to use the same pursuant
to valid leases or licenses therefor. To the knowledge of the respective
managements of
Superior and Seller, none of the Software used by or available to Superior, and
no use thereof, infringes upon or violates any patent, copyright, trade secret
or other proprietary right of anyone else and no claim with respect to any such
infringement or violation is known to be threatened.
3.16 Trademarks and Tradenames. To the knowledge of the respective
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managements of Superior and Seller, Superior has the right to use any tradenames
and trademarks used by it in the business as now conducted by it, and, to the
knowledge of the respective managements of Superior and Seller, such use does
not conflict with, infringe on, or otherwise violate any rights of others.
3.17 Properties. Superior owns or leases all property and tangible assets
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used in the conduct of its business as presently conducted. To the knowledge of
the respective managements of Superior and Seller, all of the property of
Superior is in good condition and repair, except for reasonable wear and tear,
and in conformity in all material respects with all building, zoning, OSHA,
safety, ADA or other applicable ordinances, regulations, or laws.
(a) Schedule 3.17(a) lists and describes briefly all real property which
Superior owns. With respect to each such parcel of owned real property
(collectively, the "Owned Real Property"):
(i) Superior has good and marketable title to the parcel of real
property, free and clear of any security interest, easement, covenant,
or other restriction, except for (A) installments of special
assessments not yet delinquent; (B) recorded easements, covenants, and
other restrictions which do not materially impair the current use,
occupancy, or value of the Owned Real Property subject thereto; (C)
Permitted Exceptions; (D) mortgages or security interests reflected in
the Superior Financial Statements or incurred since September 30, 1997
in connection with the purchase of Owned Real Property; and (E) zoning
laws and other land use restrictions which do not materially impair
the present or anticipated use of the Owned Real Property subject
thereto;
(ii) to the knowledge of the respective managements of Superior and
Seller, no parcel of Owned Real Property serves any adjoining property
for any purpose inconsistent with the
use of the land, and the Owned Real Property is not located within any
flood plain;
(iii) there are no outstanding options or rights of first refusal to
purchase any parcel of Owned Real Property, or any portion thereof or
interest therein; and
(iv) there are no parties (other than Superior) in possession of the
parcel of Owned Real Property, other than tenants in possession of
property leased or subleased by Superior under any leases or subleases
disclosed on Schedule 3.17(b) which tenants are in possession of space
to which they are entitled.
(b) Schedule 3.17(b) lists and describes briefly all real property,
including Owned Real Property, leased or subleased by or to Superior
(whether as lessor or as lessee) pursuant to any lease, sublease, license,
concession, or other agreement granting to any party or parties the right
of use or occupancy of such property ("Leased Real Property"). Superior
has made available to Purchaser correct and complete copies of the leases
and subleases listed in Schedule 3.17(b) (as amended to date) . With
respect to each lease and sublease listed in Schedule 3.17(b), except as to
matters which, individually or in the aggregate, will not result in a
Material Adverse Effect:
(i) to the knowledge of the respective managements of Superior and
Seller, the lease or sublease is legal, valid, binding, enforceable,
and in full force and effect;
(ii) to the knowledge of the respective managements of Superior and
Seller, no party to the lease or sublease is in breach or default, and
no event has occurred which, with notice or lapse of time, would
constitute a breach or default or permit termination, modification, or
acceleration thereunder;
(iii) to the knowledge of the respective managements of Superior and
Seller, no party to the lease or sublease has repudiated any provision
thereof;
(iv) to the knowledge of the respective managements of Superior and
Seller, there are no disputes, oral agreements,
or forbearance programs in effect as to the lease or sublease; and
(v) Superior has not assigned, transferred, conveyed, mortgaged,
deeded in trust, or encumbered any interest in the leasehold or
subleasehold.
(c) Schedule 3.17(c) sets forth a depreciation schedule of the fixed assets
by asset category of Superior as of October 31, 1997.
3.18 Contracts. Except as set forth on Schedule 3.18 and except for
---------
commitments for loans and deposits entered into in the ordinary course of
business, no agreement to which Superior is a party either obligates Superior to
pay in excess of $50,000 over the life of such agreement, or is not terminable
by Superior without penalty at will or upon notice of not more than 30 days.
Superior is not, and neither Superior nor Seller has received any notice or has
any knowledge that any other party is in default in any respect under any such
agreement, except for those defaults which would not have, individually or in
the aggregate, a Material Adverse Effect, and there has not occurred any event
that with the lapse of time or the giving of notice or both would constitute
such a default.
3.19 Benefit Plans.
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(a) Schedule 3.19(a) hereto lists all existing employee benefit plans (as
defined in Section 3 (3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), in which Employees or former employees of
Superior currently participate (the "Plans"). Seller has provided or will
provide to Purchaser a summary description of each Plan.
(b) Each Plan is and has been in substantial compliance, in form and
operation, in all material respects with all applicable laws and has been
administered in all material respects in accordance with its terms.
Superior has not incurred any liability with respect to a Plan including,
without limitation, under ERISA (including, without limitation, Title I or
Title IV of ERISA, other than liability for premiums due to the Pension
Benefit Guaranty Corporation ("PBGC")), the Code or other applicable law,
which has not been satisfied in full, and, to the knowledge of the
respective managements of Seller and Superior, no event has occurred, and
there exists no known condition or set of circumstances, which
could result in the imposition of any liability with respect to a Plan,
including, without limitation, under ERISA (including, without limitation,
Title I or Title IV of ERISA), the Code or other applicable law with
respect to the Plan. To the knowledge of the respective managements of
Superior and Seller, no event has occurred and no condition exists with
respect to any Plan which is likely to subject Purchaser, directly or
indirectly (through an indemnification agreement or otherwise), to any
material liability (including, without limitation, liability for taxes,
breach of fiduciary duty, or for a "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code). There is no
action, suit, or claim (other than routine claims for benefits in the
ordinary course) with respect to any Plan pending or threatened which is
reasonably likely to have a Material Adverse Effect. No Plan is currently
under investigation or audit by any governmental agency and, to the
knowledge of Seller's management, no such investigation or audit is
contemplated or under consideration. Each Plan intended to be a qualified
plan under Section 401(a) of the Code is so qualified and a favorable
determination letter as to qualification under Section 401(a) of the Code
has been issued and the related trust has been determined to be exempt from
taxation under Section 501(a) of the Code.
(c) Superior has no outstanding commitments to provide or to cause to be
provided any severance or other post-employment benefit, salary
continuation, termination, disability, death, retirement, health or medical
benefit or similar benefit to any person (including, without limitation,
any Employee or former employee) that either has not been reflected in the
Superior Financial Statements or is not included in any Plan disclosed in
Schedule 3.19(a). All contributions and premium payments required to have
been made or accrued under or with respect to any Plan have been timely
made or accrued. Except as set forth in Schedules 3.19(c) and 5.4(e), the
consummation of the transactions contemplated hereby will not give rise to
any right to severance, separation or similar pay or benefits.
(d) Superior has never maintained, adopted or established, contributed or
been required to contribute to, or otherwise participated or been required
to participate in, a "multiemployer plan" (as
defined in Section 3(37) of ERISA). No amount is due as owing from Superior
on account of a "multiemployer plan" (as defined in Section 3(37) of ERISA)
or on account of any withdrawal therefrom.
3.20 Employees. Set forth in Schedule 3.20 hereto is a list of all
---------
employees of Superior as of the date of this Agreement (the "Employees"),
including a list of Superior's current directors. Also set forth on Schedule
3.20 with respect to each Employee are the amount of base salary currently being
paid on an annualized basis, the amount of any raise or bonus that Superior is
currently committed to pay and the principal amount as of October 31, 1997 of
any loans or advances to such Employee by Superior. Seller has made available
to Purchaser all written employment, severance, non-competition, and similar
agreements between Superior and Employees.
3.21 Labor. No material work stoppage involving Superior is pending or, to
-----
the knowledge of the respective managements of Superior and Seller, threatened.
Superior is not involved in, or, to the knowledge of Seller's management,
threatened with or affected by, any labor or other employment related dispute,
arbitration, lawsuit or administrative proceeding, which might reasonably be
expected to have a Material Adverse Effect. The Employees are not represented
by any labor union, and, to the knowledge of the respective managements of
Superior and Seller, no labor union is attempting to organize employees of
Superior.
3.22 Environmental Matters. To the knowledge of the respective managements
---------------------
of Superior and Seller, neither Superior, nor any Owned Real Properties or
Leased Real Properties, has been or is in violation of or liable under any
Environmental Law, except for such violations or liabilities that, individually
or in the aggregate, are not reasonably likely to have a Material Adverse
Effect. There are no actions, suits or proceedings, or demands, claims, notices
or investigations (including, without limitation, notices, demand letters or
requests for information from any environmental agency) instituted or pending,
or to the knowledge of the respective managements of Superior and Seller,
threatened, relating to the liability of any such properties under any
Environmental Law, except for such violations or liabilities that, individually
or in the aggregate, are not reasonably likely to have a Material Adverse
Effect. Seller has provided Purchaser copies of Phase I audits on certain of the
Owned Real Properties which Purchaser acknowledges were not prepared for the
purposes of the transactions contemplated by this Agreement and as to which
neither Seller nor Superior makes any representations or warranties.
"Environmental Law" means any federal, state, local or foreign law
(including, without limitation, the comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource Conservation and
Recovery Act of 1976 and OSHA, each as amended), statute, ordinance, rule,
regulation, code, license, permit, authorization, approval, consent, order,
judgment, decree, injunction or agreement with any regulatory authority
relating to (i) the protection, preservation or restoration of the
environment (including, without limitation, air, water vapor, surface
water, groundwater, drinking water supply, surface soil, subsurface soil,
plant and animal life or any other natural resource), and/or (ii) the use,
storage, recycling, treatment, generation, transportation, processing,
handling, labeling, production, release or disposal of any substance
presently listed, defined, designated or classified as hazardous, toxic,
radioactive or dangerous, or otherwise regulated, whether by type or by
quantity, including any material containing any such substance as a
component.
3.23 Insurance. Schedule 3.23 identifies each insurance policy (including
---------
policies providing property, casualty, liability, directors and officers
liability, and workers' compensation coverage and bond arrangements) under which
Superior is currently insured. To the knowledge of the respective managements of
Superior and Seller, with respect to Superior's coverage under each such policy,
the policy is legally valid, binding, enforceable, and in full force and effect
as of the date of this Agreement.
3.24 Disclosure. No representation or warranty of Seller contained in this
----------
Agreement or in any statement or certificate furnished or to be furnished to
Purchaser pursuant hereto in connection with the transactions contemplated
hereby contains or will contain any untrue statement of a material fact or omits
or will omit to state a material fact necessary to make the statements made
herein or therein, in the light of the circumstances under which they were made,
not misleading.
3.25 Other Matters. Seller has not taken and has not agreed to take any
-------------
action, and has no knowledge of any fact or circumstances, that would materially
impede or delay the consummation of the transactions contemplated hereby.
3.26 Brokers and Finders. Neither Seller nor Superior nor any of their
-------------------
respective employees has employed any broker or finder or incurred any liability
for any financial advisory fees, brokerage fees, commissions
or finder's fees, and no broker or finder has acted directly or indirectly for
Seller in connection with this Agreement or the transactions contemplated
hereby.
ARTICLE IV
CONDUCT OF BUSINESS PRIOR TO THE CLOSING
4.1 Conduct Prior to Closing. Seller hereby covenants and agrees with
------------------------
Purchaser, that, prior to the Closing, unless the prior written consent of
Purchaser shall have been obtained, which consent shall not be unreasonably
withheld, and except as otherwise contemplated in this Agreement, it shall cause
Superior and its Subsidiaries to, and Superior and its Subsidiaries shall,
operate their respective businesses only in the usual, regular and ordinary
course and in accordance with their respective prior practices, and shall use
their reasonable best efforts to preserve intact their respective business
organizations and assets and maintain their respective rights, franchises and
businesses and customer relations necessary to run their respective businesses
as currently run, to maintain present relationships with licensors, suppliers,
distributors and others having significant business relationships with them, and
to keep available the services of their respective officers and employees.
Notwithstanding anything to the contrary contained herein, Purchaser
acknowledges that, prior to the Closing, Superior intends to sell to Seller or
one of its affiliates all of its automatic teller machines located in Wal-Mart,
Sam's Club and Wal-Mart Supercenter properties. Without limiting the generality
of the foregoing and except as otherwise affected by matters contemplated by
this Agreement or in connection with the transactions contemplated by this
Agreement, from the date hereof until the Closing, Seller will cause each of
Superior and its Subsidiaries to, and each of Superior and its Subsidiaries
will:
(a) carry on its business in substantially the same manner as heretofore
carried on and neither introduce any material new method of management,
operation or accounting, nor provide discounted services outside the
ordinary course of business;
(b) maintain its properties, facilities, equipment and other assets,
including those held under leases, in good working order, condition and
repair, ordinary wear and tear excepted;
(c) maintain its present debt and lease instruments (unless same are
otherwise mature), perform all of its obligations thereunder and refrain
from entering into new or amended debt or lease instruments, except for
debt incurred or leases entered into
in the ordinary course of business, without prior written notice to
Purchaser;
(d) not incur any indebtedness outside of the ordinary course of business
other than deposits or ordinary trade accounts payable at market rates with
no prepayment penalty which are used to fund operations in the ordinary
course of business;
(e) keep in full force and effect its present insurance policies or other
comparable insurance coverage;
(f) maintain its present salaries and commission levels for all officers,
directors, employees or agents, except for raises and bonuses that may be
awarded to Employees in keeping with past practices of Superior in the
ordinary course of its business, refrain from entering into employment
agreements except in the ordinary course of business, and refrain from
entering into any collective bargaining agreement;
(g) comply with and cause to be complied with all applicable laws, rules,
regulations and orders of all federal, state and local governments or
governmental agencies affecting or relating to Superior or its assets,
properties, operations, businesses or Employees except where the failure to
comply will not have a Material Adverse Effect; and
(h) make adequate provision for any Taxes due for Superior.
4.2 Forbearances. From the date hereof until the Closing, Seller
------------
covenants and agrees to ensure that neither Superior nor any of its Subsidiaries
does and Superior covenants and agrees that neither it nor any of its
Subsidiaries will do (other then as contemplated in this Agreement) any of the
following without the prior written consent of Purchaser, which consent shall
not be unreasonably withheld:
(a) declare, set aside, make or pay any dividend or other distribution in
respect of its capital stock or otherwise purchase or redeem, directly or
indirectly, any shares of its capital stock;
(b) issue, sell or deliver or enter into any agreement to issue, sell or
deliver any shares of its capital stock or any options, warrants, or other
rights, agreements, commitments, arrangements or understandings of any
kind, contingent or otherwise, to purchase,
sell or deliver any such shares, or any securities convertible into or
exchangeable for any such shares, or effect any stock split, or otherwise
change its authorized capitalization, except in the ordinary course of
business consistent with its past practice;
(c) incur any indebtedness or issue or sell any debt securities or prepay
any debt, except in the ordinary course of business consistent with its
past practice;
(d) mortgage, pledge or otherwise subject to any material lien or lease,
any of its properties or assets, tangible or intangible or permit or suffer
any such property or asset to be subjected to any material lien or lease,
except in the ordinary course of business consistent with its past practice
and for Permitted Exceptions;
(e) forgive or cancel any debts or claims, or waive any rights, except for
fair value or in the ordinary course of business consistent with its past
practice;
(f) except for loans and deposits in the ordinary course of business, enter
into (i) any agreement, commitment or other transaction involving an
expenditure, a liability or an obligation of Superior of more than
$200,000 or, (ii) any other agreement or commitment that, pursuant to its
terms, is not terminable by Superior without penalty at will or on less
than 31 days' notice;
(g) except in the ordinary course of its business, pay any bonus to any
Employee or grant to any Employee any increase in compensation;
(h) except as contemplated by this transaction or disclosed in any Schedule
to this Agreement, enter into any severance agreement or salary
continuation agreement with any Employee or, except in the ordinary course
of business consistent with past practice, enter into any employment
agreement;
(i) amend its Charter or Bylaws or any other organizational documents;
(j) make any material changes in policies or practices relating to selling
practices or other terms of sale or accounting therefor or in policies of
employment;
(k) enter into any type of business not conducted by Superior as of the
date of this Agreement or create or organize any subsidiary of Superior or
enter into or participate in any joint venture or partnership;
(l) except as otherwise expressly contemplated by this Agreement and except
in the ordinary course of business consistent with past practice, enter
into any agreement or transactions with Seller or any affiliate of Seller
or make any amendment or modification to any such agreement; or
(m) take any action or omit to take any action that is reasonably likely to
result in the occurrence of, or agree or commit to do, any of the
foregoing.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Current Information. During the period from the date of this
-------------------
Agreement to the Closing Date, each of Seller and Purchaser will cause one or
more of its representatives to confer on a regular and frequent basis with
representatives of the other with respect to the status of the ongoing
operations of Superior. Each party will notify the other of the status of any
required regulatory applications and third-party consents related to the
transactions contemplated hereby.
5.2 Access; Information.
-------------------
(a) During the period from the date of this Agreement to the Closing Date,
Seller shall, upon reasonable notice, cause Superior to afford to Purchaser
and its representatives (including, without limitation, officers and
employees of Purchaser and counsel, accountants and other professionals
retained by Purchaser), such access during normal business hours to its
books, records, properties and such other information as Purchaser may
reasonably request for the purpose of conducting any review or
investigation reasonably related to the transactions contemplated hereby,
provided that such access shall not interfere with the normal business
operations of Superior.
(b) Purchaser agrees that it will keep confidential any information
furnished to it in connection with the transactions contemplated by this
Agreement in accordance with the terms of the Confidentiality Agreement
dated August 12, 1997 between
Seller and Purchaser, as amended by letter dated November 24, 1997 (the
"Confidentiality Agreement"), which agreement shall remain in effect in
accordance with its terms.
5.3 Regulatory Matters. Purchaser shall use its reasonable best efforts
------------------
(i) to prepare all documentation, to effect all filings and to obtain all
permits, consents, approvals and authorizations of all third parties, regulatory
authorities and other governmental authorities necessary to consummate the
transactions contemplated by this Agreement, including, without limitation, any
such approvals or authorizations required by any state or regulatory authority,
including, without limitation, the Board of Governors of the Federal Reserve
System (the "Federal Reserve"), the OTS, and any state insurance commissioner;
and (ii) to cause the transactions contemplated hereby to be consummated as
expeditiously as reasonably practicable. Provided that Seller has cooperated
with Purchaser in providing information necessary to the completion of requisite
applications, Purchaser agrees to file the requisite applications to be filed by
it with any required regulatory authorities no later than 45 days after the date
of this Agreement.
5.4 Employee Benefits and Other Matters.
-----------------------------------
(a) Purchaser will continue to employ Employees on an "at will" basis.
Seller shall remain responsible for the payment of any benefit accrued by
Employees prior to the Closing Date under any severance, salary
continuation, incentive or similar agreement between Superior and/or Seller
and any Employees entered into prior to the Closing Date.
(b) Effective as of the Closing Date, Seller shall cause Superior to
withdraw from participation in, and Employees shall cease accruing benefits
under, all of Seller's employee benefit plans and policies. On or before
the Closing Date, Seller or Superior, as the case may be, shall, to the
extent permitted under applicable law, cause Employees participating in any
qualified defined benefit pension Plan or qualified defined contribution
Plan to become fully vested under the terms of such Plans. Seller shall
amend its defined contribution Plan to provide that Employees shall be
eligible to receive the employer matching contribution for the year in
which the Closing Date occurs without regard to the requirement that a
participant be employed by Seller on December 31 of such year. Purchaser
shall, as soon as practicable after the Closing Date, establish a
retirement plan which Purchaser deems reasonable and competitive among
employers in the markets where
Purchaser will conduct business. For the purposes of such plans established
by Purchaser, prior continuous service of Employees with Superior or Seller
shall be counted as continuous service with Purchaser for satisfaction of
enrollment, eligibility and vesting requirements. Seller remains
responsible for all benefits accrued by Employees as of the Closing Date
resulting from participation in Seller's defined benefit and defined
contribution Plans.
(c) On the Closing Date, Purchaser will have established and will make
available to Employees reasonable and competitive employee welfare plans,
including, without limitation, medical, life and disability plans, and will
use its best efforts to enroll all participating Employees in such plans
without consideration of pre-existing conditions. Purchaser will also use
its best efforts to permit plan-year payments toward satisfaction of
participant deductible amounts and other employee payment limits to carry
forward to the plan established by Purchaser. Plan design and premium
distribution under such plan or plans will rest solely with Purchaser.
Purchaser and Seller agree that liability for medical claims of Employees
incurred but unpaid before the Closing Date shall remain with Seller.
Seller shall offer retiree medical coverage and retiree medical
reimbursement account benefits to Employees eligible for such benefits as
of the Closing Date and liabilities for such coverage shall remain with
Seller. Purchaser will provide such other insured and uninsured welfare
plans as it deems appropriate. With respect to such plans, continuous
service of Employees with Superior will be counted as continuous service
with Purchaser for satisfaction of enrollment and other eligibility
requirements of such plans and for determining eligibility for vacation,
personal leave and other similar employee benefit and recognition programs
which Purchaser may implement. As of the Closing Date, Purchaser shall
have established a health care reimbursement plan and a dependent care
reimbursement plan, and Seller shall transfer the balances in its health
care reimbursement fund and dependent care reimbursement fund to the extent
of unused Employee accounts in such plans to Purchaser's plans. To the
extent a participant's health care reimbursement account has a negative
account balance as of the Closing Date, Purchaser will continue to
administer its medical reimbursement plan and withhold amounts from such
participant's paychecks in accordance with the Employee's election, and if
such participant has a positive account balance in Purchaser's health care
reimbursement fund following the close of
all claims for the year in which the Closing occurs, Purchaser shall
transfer such positive amounts to Seller.
(d) Seller makes no representations or warranties about whether any
Employees will remain employed by Superior after the date of this
Agreement. Seller will use its best efforts to maintain the Employees as
employees of Superior until the Closing Date.
(e) Purchaser agrees that, for a period of six (6) months after the Closing
Date, it will not terminate without "good cause" (as defined in Schedule
5.4(e)) a transferred Employee without paying to such Employee a severance
benefit no less than the applicable severance benefit set forth on Schedule
5.4(e).
5.5 Certain Tax Matters. Seller and Purchaser hereby covenant and agree
-------------------
with respect to certain tax matters as follows:
(a) The NationsBank Group, or a successor common parent, and Purchaser
shall jointly make a timely Section 338(h)(10) Election in accordance with
federal and applicable state Tax Laws and as set forth herein. Seller and
Purchaser will supply in advance to one another copies of all
correspondence, filings or communications (or memoranda setting forth the
substance thereof) to be sent or made by Seller or Purchaser or their
respective representatives to or with the IRS or any other Governmental
Entity relating to such election. Seller and Purchaser agree to report the
transfers under this Agreement consistent with such Section 338(h)(10)
Election and shall take no position or action contrary thereto.
(b) (i) Seller and Purchaser shall be jointly responsible for the
preparation and filing of all Section 338 Forms to be prepared by them
in accordance with applicable Tax Laws and the terms of this
Agreement, and each party shall deliver to the other party such Forms
and related documents as soon as practicable prior to the date such
Section 338 Forms are required to be filed under applicable Tax Laws.
As soon as practicable after the Closing Date, Seller and Purchaser
shall jointly prepare a schedule calculating the "modified aggregate
deemed sale price" for the deemed sale of assets under Section 338 of
the Code and showing an allocation of that amount among the assets of
Superior in accordance with the regulations thereunder. Any such
agreed allocation
shall be binding upon Seller, Purchaser and their respective
affiliates unless a different allocation is required pursuant to a
determination within the meaning of Section 1313 of the Code.
(ii) Seller and Purchaser shall reduce such allocation to writing,
including jointly and properly executing necessary copies of completed
Section 338 Forms. Seller and Purchaser shall file timely any such
Section 338 Forms with the IRS.
(iii) To the extent consistent with applicable law, Seller and
Purchaser shall not file any Tax Return or other documents or
otherwise take any position with respect to Taxes which is
inconsistent with such allocation of the "modified aggregate deemed
sale price", provided, however, that neither Seller nor Purchaser
shall be obligated to litigate any challenge to such allocation of the
Purchase Price by a Taxing Authority.
(iv) Seller and Purchaser shall promptly inform one another of any
challenge by any government body to any allocation made pursuant to
this Section 5.5(b) and agree to consult with and keep one another
informed with respect to the status of, and any discussion, proposal
or submission with respect to, such challenge.
(c) Seller shall pay and shall indemnify and hold Purchaser harmless
against any and all Taxes of Superior or Seller for any Taxable Period
ending on or before the Closing Date, including any Taxes resulting from
the making of the Section 338(h)(10) Election, and any liability for Taxes
pursuant to Treasury Regulation Section 1.1502-6; in each case, after
giving effect to any credits for the amount of Tax, if any, paid on or
prior to the Closing Date. The indemnification provided herein is separate
from and in addition to the indemnification provided in Section 8.1 hereof
and is not subject to any minimum or maximum amount in such section. All
liabilities and obligations between Superior, on the one hand, and Seller
and any of Sellers' affiliates, on the other hand, under any Tax allocation
agreement or arrangement in effect on or prior to the Closing Date (other
than this Agreement or as set forth herein) shall cease to exist as of the
Closing Date.
(d) Purchaser shall be liable for, shall pay and shall indemnify and hold
Seller harmless against, any and all Taxes of Superior for any taxable year
or Taxable Period commencing after the Closing Date. Purchaser shall be
liable for, and Purchaser agrees to indemnify Seller and its affiliates
against, any and all liability for Taxes arising, directly or indirectly,
from a liquidation, merger, sale or other disposition of assets of Superior
(other than in the ordinary course of business), or from any income
otherwise recognized by Superior, on or subsequent to the Closing, other
than Taxes resulting from the Section 338(h)(10) Election. The
indemnification provided herein is separate from and in addition to the
indemnification provided in Section 8.1 hereof and is not subject to any
minimum or maximum amount in such section.
(e) Any Taxes for a Taxable Period beginning before the Closing Date and
ending after the Closing Date (the "Straddle Period") with respect to
Superior (other than the consolidated Tax Returns described in paragraph
(f)) shall be apportioned between the portion of such period ending on the
Closing Date (the "Pre-Closing Straddle Period") and the portion of such
period beginning on the date following the Closing Date (the "Post-Closing
Straddle Period") based upon the interim closing of the books for Superior
as of the Closing Date (except that ad valorem Taxes and other Taxes not
based upon income or receipts will be apportioned to the Pre-Closing
Straddle Period based upon the number of days covered by such payment which
are on or before the Closing Date and total number of days covered by the
payment). For purposes of this Section 5.5, each portion of such period
shall be deemed to be a Taxable Period. Seller shall be responsible for
all Taxes of Superior apportioned to the Pre-Closing Straddle Period, and
Purchaser shall be responsible for all Taxes of Superior apportioned to the
Post-Closing Straddle Period. With respect to any Taxes for the Pre-
Closing Straddle Period which are payable by Superior (other than the
consolidated Tax Returns described in paragraph (f) and for which the
applicable Tax Return is a Post Return (as defined below)), upon agreement
by Purchaser and Seller as to the form and substance of such Tax Return,
but not later than ten business days prior to the due date for the payment
of such Pre-Closing Straddle Period Taxes, Purchaser shall present Seller
with a copy of such Tax Return indicating the Pre-Closing Straddle Period
Taxes payable with respect thereto and a schedule detailing the amount of
such Taxes shown as due on such Tax Return which are in excess of the
amount of any estimated Tax payments made with
respect to these Taxes on or prior to the Closing Date and within ten
business days after Purchaser presents Seller with such Return, Seller
shall pay to Purchaser the amount due. In the event Seller disputes,
pursuant to paragraph (k), Purchaser's computation and if, upon such
resolution, it is determined that any of such disputed amount was not
payable to Purchaser and such amount has been paid to Purchaser, then
Purchaser shall refund to Seller such amount, plus interest at the Federal
Funds Rate.
(f) Seller shall cause to be included in the consolidated federal income
Tax Returns (and the state income Tax Returns of any state that permits
consolidated, combined or unitary income Tax Returns, if any) of the
NationsBank Group for all periods ending on or before or which include the
Closing Date, all taxable income, gain, loss, deduction and credit of
Superior which are required to be included therein, including any liability
for Taxes resulting from the making of the Section 338(h)(10) Election,
shall file timely all such Tax Returns with the appropriate taxing
authorities and shall pay timely all Taxes due with respect to the periods
covered by such Tax Returns. Prior to the Closing Date, Superior shall pay
to Seller all amounts for current or deferred federal and state Tax
liability. Seller shall prepare and file or cause Superior to prepare and
file all Tax Returns (other than consolidated, combined or unitary, Tax
Returns), reports and forms for Superior which are due prior to the Closing
Date, and shall pay all Taxes or shall cause Superior to pay all Taxes set
forth on such Tax Returns. Purchaser, in consultation with Seller, shall
prepare all Tax Returns (other than consolidated, combined or unitary, Tax
Returns) due after the Closing Date with respect to taxable periods ending
on or before the Closing Date ("Post Returns") in a manner consistent with
Superior's prior practices, except for changes necessary to comply with
changes in, or application of, Tax Law. Seller shall have the right to
review and comment on and consent to the form and substance of such Post
Returns. Upon agreement with respect to the form and substance of a Post
Return, Seller shall pay to Superior the amount of Taxes due and Purchaser
will cause such Post Return to be timely filed. If Purchaser does not
prepare and timely submit a Post Return, Seller shall have the right to
prepare and file (or cause to be prepared and filed) such Post Return in a
manner consistent with Superior's prior practices, except for changes
necessary to comply with changes in, or application of, Tax Law and shall
be subject to the review and
comment on and consent to by Purchaser, which consent shall not be
unreasonably withheld.
(g) Seller shall have exclusive control over any dispute with any Taxing
Authority relating to any Tax liability or Tax Return of Seller or any
affiliate of Seller (including Superior for periods prior to the Closing
Date) filed by the NationsBank Group, Seller or Superior for or with
respect to any Taxable Period, or partial period, ending on or prior to the
Closing Date, including Post Returns and other Tax Returns described in
Section 5.5(f); provided that Seller shall keep Purchaser informed of the
progress of any such dispute with respect to Superior. Purchaser shall
cooperate and shall cause its affiliates to cooperate with Seller and its
affiliates in connection with any and all such disputes and will execute
all lawful, true and correct powers-of-attorney, affidavits, and other
papers necessary in connection therewith, and will provide Seller
reasonable access during normal business hours to the employees and
business, financial and Tax records or other similar information of
Superior relating to such dispute.
(h) Purchaser and Superior shall have exclusive control over any dispute
with any Taxing Authority relating to any Tax liability or Tax Return of
Purchaser or Superior filed for or with respect to any Taxable Period (or
portion thereof) beginning on or after the Closing. Seller shall cooperate
and shall cause its affiliates to cooperate with Purchaser and its
affiliates in connection with any and all such disputes and will execute
all lawful, true and correct powers-of-attorney, affidavits, and other
papers necessary in connection therewith, and will provide Purchaser and
Superior reasonable access during normal business hours to the employees
and business, financial and Tax records or other similar information of
Seller and its affiliates to the extent relating to such dispute.
(i) Purchaser shall cause Superior to elect, where permitted by law, to
carry forward any net operating loss, charitable contribution or other item
arising after the Closing Date that could, in the absence of such an
election, be carried back to a Taxable period of Superior ending on or
before the Closing Date in which Superior filed a consolidated, combined or
unitary Tax Return with Seller or any of its affiliates. Purchaser, on its
own behalf and on behalf of its Tax Affiliates, hereby waives any right to
use or apply any net operating loss, net capital loss, charitable
contribution or
other item of Superior for any Tax year ending on any date following the
Closing Date to part or all of the period prior to the Closing Date.
(j) As soon as practicable, but in any event within fifteen days after
Seller's or Purchaser's request, as the case may be, Purchaser shall
deliver to Seller, or Seller shall deliver to Purchaser, as the case may
be, such information and other data relating to the Tax Returns and Taxes
of Superior and shall make available such knowledgeable employees of
Seller, Purchaser, Superior or any of their affiliates, as the case may be,
as Seller or Purchaser, as the case may be, may reasonably request,
including providing the information and other data customarily required by
Seller or Purchaser, as the case may be, to cause the completion and filing
of all Tax Returns for which it has responsibility or liability under this
Agreement or to respond to audits by any Taxing Authority with respect to
any Tax Returns or Taxes for which it has any responsibility or liability
under this Agreement or to otherwise enable Seller or Purchaser, as the
case may be, to satisfy its accounting or Tax requirements.
(k) If Seller and Purchaser disagree as to the amount of Taxes for which
either of them is liable to the other under this Section 5.5, Seller and
Purchaser shall promptly consult each other in an effort to resolve such
dispute. If any such point of disagreement cannot be resolved within
fifteen days of the date of consultation, the Independent Accounting Firm
shall act as an arbitrator to resolve all points of disagreement concerning
Tax matters with respect to this Agreement. All fees and expenses relating
to the work performed by the arbitrator in accordance with this Section
5.5(k) shall be borne equally by Seller, on the one hand, and Purchaser, on
the other hand.
(l) Seller and Purchaser shall (i) each give the other prompt written
notice of the receipt of any claim by any Taxing Authority that, if
successful, may result in an indemnity payment pursuant to this Section 5.5
and (ii) each transmit to the other a written description reasonably
detailing the nature of the claim, a copy of all papers served with respect
to such claim and the basis of its claim for indemnification under this
Section 5.5.
(m) Purchaser shall be responsible for, and shall pay when due and payable,
all recording, transfer and other similar taxes and
fees payable as a result of the filing or recording of any document or
instrument of conveyance or transfer contemplated by this Agreement.
5.6 Press Releases. Prior to the public dissemination of any press
--------------
release or other public disclosure of information related to this Agreement or
the transactions contemplated hereby, Purchaser and Seller shall mutually agree
as to the form, substance and timing of such release or disclosure.
Notwithstanding the foregoing, the parties may make such disclosures as are
required by law after making reasonable efforts under the circumstances to
consult in advance with the other party.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions Precedent to Obligations of Parties Hereto. The
-----------------------------------------------------
obligations of each of the parties to consummate the transactions contemplated
hereby are subject to the fulfillment or waiver by such party in writing, at or
before the Closing, of each of the following conditions:
(a) Regulatory Approvals. All requisite consents, waivers, authorizations
--------------------
and approvals from or filings with all governmental and regulatory
authorities to the consummation of the transactions contemplated by the
Agreement shall have been obtained or made.
(b) No Prohibition. No statute, rule, regulation, executive order, decree
--------------
or injunction shall have been enacted, entered, promulgated or enforced by
any court of competent jurisdiction or by any governmental or regulatory
agency or authority which has the effect of restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated by
this Agreement.
(c) Litigation. No order, injunction or decree issued by any court of
----------
competent jurisdiction or by any governmental or regulatory agency or
authority or any other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect. No action or proceeding shall be pending or threatened before any
court, tribunal or governmental or regulatory agency or authority, and no
claim or demand shall have been made, that is reasonably likely to
prevent the consummation of the transactions contemplated by this
Agreement.
6.2 Conditions Precedent to Obligations of Seller and Superior. The
----------------------------------------------------------
obligations of Seller and Superior to consummate the transactions contemplated
by this Agreement are also subject to the fulfillment or waiver by Seller or
Superior in writing, at or before the Closing, of each of the following
conditions:
(a) Representations and Warranties. The representations and warranties of
------------------------------
Purchaser in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date (as
though made on and as of the Closing Date except to the extent such
representations and warranties are by their express provisions made as of a
specified date).
(b) Performance by Purchaser. Purchaser shall have performed and complied
------------------------
in all material respects with all agreements, covenants and conditions
required by this Agreement to be performed or complied with by it at or
before the Closing.
(c) Deliveries. Purchaser shall have delivered on or prior to the Closing
----------
all certificates, forms, agreements, and other documents and deliveries
required by Section 7.2.
(d) No Adverse Change. There shall be no material adverse change between
-----------------
the date hereof and the Closing Date in the financial condition, results of
operations, assets or liabilities of Purchaser.
6.3 Conditions Precedent to Obligations of Purchaser. The obligations of
------------------------------------------------
Purchaser to consummate the transactions contemplated by this Agreement are also
subject to the fulfillment or waiver by Purchaser in writing, at or before the
Closing, of each of the following conditions:
(a) Representations and Warranties. The representations and warranties of
------------------------------
Seller in this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the Closing Date (as though made
on and as of the Closing Date except to the extent such representations and
warranties are by their express provisions made as of a specified date).
(b) Performance by Seller. Seller shall have performed and complied in all
---------------------
material respects with all agreements, covenants and conditions required by
this Agreement to be performed or complied with by Seller at or before the
Closing.
(c) Deliveries. Seller shall have delivered on or prior to the Closing all
----------
certificates, forms, agreements, and other documents and deliveries
required by Section 7.1.
(d) No Adverse Change. There shall be no material adverse change between
-----------------
the date hereof and the Closing Date in the financial condition, results of
operations, assets or liabilities of Superior.
ARTICLE VII
CLOSING DELIVERIES
7.1 Seller's Deliveries. At the Closing, Seller shall deliver to
-------------------
Purchaser the following:
(a) Certified resolutions of the Board of Directors of Seller authorizing
Seller to enter into and perform this Agreement.
(b) A certified copy of the Charter and Bylaws of Superior.
(c) An officers' certificate for Seller as to fulfillment of the conditions
in Section 6.3.
(d) A certificate or certificates for the Shares, duly endorsed in blank or
with a stock power duly endorsed in blank.
(e) An opinion of counsel for Seller reasonably satisfactory to Purchaser's
counsel.
7.2 Purchaser's Deliveries. At the Closing, Purchaser shall deliver to
----------------------
Seller the following:
(a) Certified resolutions of the Board of Directors of Purchaser
authorizing Purchaser to enter into and perform this Agreement.
(b) A certified copy of the Certificate of Incorporation and Bylaws of
Purchaser.
(c) An officers' certificate for Purchaser as to fulfillment of the
conditions in Section 6.2.
(d) The Purchase Price pursuant to and in the manner provided in Section
1.2.
(e) An opinion of counsel for Purchaser reasonably satisfactory to Seller's
counsel.
ARTICLE VIII
INDEMNITY
8.1 Indemnity. Until the first anniversary of the Closing Date, Seller
---------
shall indemnify and hold harmless Purchaser and each of its directors,
officers, employees and agents, and each of the heirs, executors, successors and
assigns of any of the foregoing (the "Purchaser Indemnified Parties") from and
against any and all Losses (as defined below) incurred by or asserted against
any of such parties in connection with or arising out of any breach by Seller of
any representation or warranty, or any failure by Seller to comply with any
covenant or agreement set forth herein, except as provided in Section 5.5(c);
provided, however, that (i) the Purchaser Indemnified Parties shall be entitled
to indemnification under this Section 8.1 only if and to the extent their
aggregate amount of Losses hereunder (notwithstanding limitations on materiality
contained in Seller's representations and warranties) exceeds $250,000, and then
only to the extent of such excess; (ii) the Purchaser Indemnified Parties shall
not be entitled to indemnification for any Losses resulting from or incurred in
connection with the Private Placement or the Debt Offering; and (iii) in no
event shall Seller's aggregate liability hereunder exceed $5,000,000.
Until the first anniversary of the Closing Date, Purchaser shall indemnify and
hold harmless Seller, and its directors, officers, employees and agents, and
each of the heirs, executors, successors, and assigns of any of the foregoing
(the "Seller Indemnified Parties") from and against any and all Losses (as
defined below) incurred by or asserted against any of such parties in connection
with or arising out of any breach by Purchaser of any representation or
warranty, or any failure by Purchaser to comply with any covenant or agreement
set forth herein, except as provided in Section 5.5(d); provided, however, that
the Seller Indemnified Parties shall be entitled to indemnification under this
Section 8.1 only if and to the extent their aggregate amount of Losses hereunder
(notwithstanding limitations on materiality contained in Purchaser's
representations and warranties) exceeds $250,000, and then only to the
extent of such excess; and provided further, however, that in no event shall
Purchaser's aggregate liability hereunder exceed $5,000,000.
"Losses" means, with respect to any of Purchaser, Seller or Superior, any and
all losses, liabilities, claims, damages, obligations (including those arising
out of any action, such as any settlement or compromise thereof or judgment or
award therein), and any reasonable out-of-pocket costs and expenses (including
reasonable attorneys' fees and expenses incurred in defending any lawsuit or
other action).
8.2 Claims.
------
(a) The party being indemnified hereunder (the "Indemnified Party") shall
give written notice to the party against whom a claim for indemnification
is asserted hereunder (the "Indemnifying Party") within the earlier of
twenty (20) days of receipt of written notice or forty (40) days from
discovery by the Indemnified Party of any matters which may give rise to a
claim for indemnification or reimbursement under this Agreement (a
"Claim"). The failure to give such notice shall not affect the right of
the Indemnified Party to indemnity hereunder unless such failure has
materially and adversely affected the rights of the Indemnifying Party.
(b) In the event an action brought by a third party (a "Third-Party Claim")
shall be brought or asserted in respect of which indemnity may be sought by
an Indemnified Party under this Section 8.2, the Indemnified Party shall
notify the Indemnifying Party in writing thereof within such period of time
as to not prejudice the defense thereof, but in any case within twenty (20)
days thereof. Subject to this Section 8.2, the Indemnifying Party shall
have the opportunity to defend and/or settle such Third-Party Claim, and
employ counsel reasonably satisfactory to the Indemnified Party, and the
Indemnifying Party shall pay all expenses related thereto, including,
without limitation, all fees and expenses of counsel. After receipt of
such notice, the Indemnifying Party shall notify the Indemnified Party
within twenty (20) days (or such shorter period if necessary so as not to
prejudice the defense thereof) in writing whether it will assume the
defense thereof.
(c) Upon receipt of notice by the Indemnified Party from the Indemnifying
Party of its election to assume the defense of such an action and approval
of the Indemnified Party of counsel to the Indemnifying Party, which
approval shall not be unreasonably
withheld or delayed, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal or other expense subsequently incurred by
the Indemnified Party unless (i) the Indemnifying Party agrees in writing
to pay such fees and expenses, (ii) the Indemnifying Party fails either to
assume the defense of such action or to employ counsel reasonably
satisfactory to the Indemnified Party, or (iii) the Indemnified Party shall
have been advised by counsel that there may be one or more legal defenses
available to the Indemnified Party that are different from or in addition
to those available to the Indemnifying Party or that there shall exist some
other legal conflict between the interests of the Indemnifying Party and
the Indemnified Party.
(d) If the Indemnifying Party shall not elect to assume the defense of any
Third-Party Claim, or if any of the events specified in clauses (i) through
(iii) in the preceding subsection (c) occurs, the Indemnified Party shall
have the right to maintain the defense of and to settle such Third-Party
Claim, with counsel reasonably satisfactory to the Indemnifying Party;
provided, however, that the Indemnifying Party shall retain the right to
assume the defense of such Third-Party Claim pursuant to paragraph (c)
above, provided that such assumption does not prejudice the defense of such
Third-Party Claim.
(e) In the event that an offer to settle a Third-Party Claim is received,
each of the Indemnified Party and the Indemnifying Party shall notify the
other thereof, in writing, and shall consult with one another in
considering such offer. Such offer shall be accepted if the Indemnifying
Party so directs in writing unless either (A) the Indemnified Party shall
agree in writing that any liability arising out of such Third-Party Claim
shall not be a Loss covered hereunder, in which case the Indemnified Party
shall have full right to maintain the defense thereof, or (B) the failure
to accept such settlement offer is based on the Indemnified Party's
reasonable objection to a sanction, restriction, fine, or other penalty
that would be imposed on it or its affiliates under the settlement.
(f) Notwithstanding anything herein, and whichever party shall have the
right to maintain the defense of a Third-Party Claim, each of the
Indemnifying Party and the Indemnified Party shall consult with the other
with respect thereto, provide each other with such assistance as the other
may reasonably require in order to
promptly and adequately defend such action, and have the right to
participate at its own expense in the defense thereof, with counsel
reasonably satisfactory to the other.
8.3 Survival. The representations, warranties, covenants and agreements
--------
of each party set forth herein shall survive the Closing for a period of one (1)
year. Neither party hereto shall have any liability (for indemnification or
otherwise) with respect to any representation, warranty, covenant or agreement
set forth herein, unless on or before the first anniversary of the Closing Date
the other party shall notify such party of a claim specifying the factual basis
of that claim in reasonable detail.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated:
-----------
(a) by written agreement of the parties; or
(b) by Purchaser (if it is not in breach of any of its obligations
hereunder) pursuant to notice in the event of a breach or failure to
perform by Seller that is material in the context of the transactions
contemplated hereby of any representation, warranty, covenant or agreement
by Seller contained herein which has not been, or cannot be, cured within
30 days after written notice of such breach or failure to perform is given
to Seller; or
(c) by either Seller or Superior (if it is not in breach of any of its
obligations hereunder) pursuant to notice in the event of a breach or
failure to perform by Purchaser that is material in the context of the
transactions contemplated hereby of any representation, warranty, covenant
or agreement by Purchaser contained herein which has not been, or cannot
be, cured within 30 days after written notice of such breach or failure to
perform is given to Purchaser; or
(d) by any party, following ten (10) days' written notice to the other
parties, if, at any time prior to the Closing Date any event shall have
occurred or facts and circumstances shall exist that render any of the
conditions to such party's obligations as provided in this Agreement
incapable of fulfillment unless caused by the breach of any covenant or
agreement under this Agreement by the terminating party; or
(e) by any party upon notice to the other parties if the Closing has not
taken place on or before November 30, 1998; or
(f) by Seller or Superior, in its sole discretion, if Purchaser shall not
have done any of the following: (i) by January 15, 1998, received firm
commitments for $95.0 million in connection with the Private Placement; or
(ii) within 90 days of this Agreement, escrowed $33.0 million of such firm
commitments and received written expressions of interest for $80.0 million
in connection with the Debt Offering; or (iii) within 180 days of this
Agreement, taken all steps necessary to consummate the Private Placement
and the Debt Offering, including, without limitation, the receipt of at
least $80.0 million in firm commitments with respect to the Debt Offering,
subject only to the receipt of the regulatory approvals set forth in
Schedule 2.4, with consummation of the Private Placement and the Debt
Offering to occur as soon as practicable following the receipt of such
regulatory approvals.
ARTICLE X
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the meanings as
set forth below:
"ADA" shall mean the Americans with Disabilities Act.
"Agreement" shall have the meaning set forth in the introduction hereto.
"Claim" shall have the meaning set forth in Section 8.2(a).
"Closing" shall have the meaning set forth in Section 1.4.
"Closing Date" shall have the meaning set forth in Section 1.5.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder.
"Confidentiality Agreement" shall have the meaning set forth in Section
5.2(b).
"Debt Offering" shall have the meaning set forth in Section 2.10.
"Employees" shall have the meaning set forth in Section 3.20.
"Environmental Law" shall have the meaning set forth in Section 3.22.
"ERISA" shall have the meaning set forth in Section 3.19(a).
"FDIC" shall have the meaning set forth in Section 3.3.
"Federal Funds Rate" shall mean, for any day, the rate for that day set
forth opposite the caption "Federal Funds" (Effective) in the daily
statistical release designated as "Composite 3:30 p.m. Quotations for U.S.
Government Securities" published by the Federal Reserve Bank of New York.
"Federal Reserve" shall have the meaning set forth in Section 5.3.
"GAAP" shall mean generally accepted accounting principles in the United
States.
"Goodwill Litigation" shall have the meaning set forth in Section 1.6.
"Governmental Entity" shall mean any court, any administrative, judicial or
regulatory agency or commission, any government-sponsored enterprise, or
any other governmental or quasi-governmental authority or instrumentality,
domestic (federal, state or local) or foreign.
"Indemnified Party" shall have the meaning set forth in Section 8.2(a).
"Indemnifying Party" shall have the meaning set forth in Section 8.2(a).
"Independent Accounting Firm" shall mean a nationally recognized accounting
firm jointly selected by Purchaser and Seller. In the event Purchaser and
Seller propose different accounting firms and cannot agree on a selection,
one of the remaining nationally recognized accounting firms not originally
selected by Purchaser or Seller shall be selected at random to serve as the
Independent Accounting Firm.
"IRS" shall mean the Internal Revenue Service.
"Leased Real Property" shall have the meaning set forth in Section 3.17(b).
"Liens" shall have the meaning set forth in Section 3.14.
"Losses" shall have the meaning set forth in Section 8.1.
"Material Adverse Effect" shall have the following meaning:
(a) with respect to Purchaser, the term "Material Adverse Effect"
shall mean (A) a material adverse effect (whether taken individually
or in the aggregate with all other such effects) on the financial
condition, business, results of operations or properties of Purchaser,
(B) an effect which would materially impair Purchaser's ability timely
to consummate the transactions contemplated hereby or (C) any event,
circumstance or condition affecting Purchaser which would prevent or
materially delay the consummation of the transactions contemplated by
this Agreement; and
(b) with respect to Seller or Superior, the term "Material Adverse
Effect" shall mean (A) a material adverse effect (whether taken
individually or in the aggregate with all other such effects) on the
financial condition, business, results of operations or properties of
Superior, (B) an effect which would materially impair Seller's ability
timely to consummate the transactions contemplated hereby or (C) any
event, circumstance or condition affecting Seller or Superior which
would prevent or materially delay the consummation of the transactions
contemplated by this Agreement.
"NationsBank Group" shall mean the affiliated group of corporations filing
a consolidated federal income Tax Return of which NationsBank Corporation
is the common parent and of which Seller is a member.
"OSHA" shall mean the Occupational Safety and Health Act.
"OTS" shall have the meaning set forth in Section 3.3.
"Owned Real Property" shall have the meaning set forth in Section 3.16(a).
"PBCG" shall have the meaning set forth in Section 3.19(b).
"Permitted Exceptions" shall have the meaning set forth in Section 3.14.
"Person" shall mean an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, or an unincorporated organization.
"Plans" shall have the meaning set forth in Section 3.19.
"Post Return" shall have the meaning set forth in Section 5.5(f).
"Post-Closing Straddle Period" shall have the meaning set forth in Section
5.5(e).
"Pre-Closing Straddle Period" shall have the meaning set forth in Section
5.5(e).
"Private Placement" shall have the meaning set forth in Section 2.10.
"Prohibited Transaction" shall have the meaning set forth in Section
3.19(b).
"Purchase Price" shall have the meaning set forth in Section 1.1.
"Purchaser" shall have the meaning set forth in the introduction to this
Agreement.
"Purchaser Indemnified Parties" shall have the meaning set forth in Section
8.1.
"Section 338 Forms" shall mean all Tax Returns, documents statements, and
other forms that are required to be submitted to any federal, state,
county, or other local Taxing Authority in connection with a Section
338(h)(10) Election. Section 338 Forms shall include, without limitation,
any "statement of section 338 election" and United States Internal Revenue
Service Form 8023-A (together with any schedules or attachments thereto)
that are required pursuant to relevant Treasury Regulations and any
substantially similar forms under a state or local statute corresponding to
federal Tax Laws.
"Section 338(h)(10) Election" shall mean an election described in Section
338(h)(10) of the Code with respect to the acquisition of the Shares by
Purchaser pursuant to this Agreement. "Section 338(h)(10) Election" shall
also include any substantially similar election under a state or local
statute corresponding to federal Tax Laws.
"Seller" shall have the meaning set forth in the introduction to this
Agreement.
"Seller Indemnified Parties" shall have the meaning set forth in Section
8.1.
"Shares" shall have the meaning set forth in Section 1.1.
"Software" shall have the meaning set forth in Section 3.14.
"Straddle Period" shall have the meaning set forth in Section 5.5(e).
"Subsidiary" or "Subsidiaries" shall have the meaning set forth in Section
3.4.
"Superior" shall have the meaning set forth in the introduction to this
Agreement.
"Superior Financial Statements" shall have the meaning set forth in Section
3.10.
"Tax" or "Taxes" shall mean any federal, state, local or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Code section 59A), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not.
"Tax Affiliate" shall mean any corporation with respect to which a
specified Person joins or at any time has joined the filing of any
consolidated, combined or unitary Tax Return for any Taxable Period.
"Tax Laws" shall mean the Code, federal state, county, local or foreign
laws relating to Taxes and any regulations or official administration
pronouncements released thereunder.
"Tax Return" shall mean any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"Taxable Period" shall mean any period for which or with respect to which
the Taxes of any Person are determined or calculated.
"Taxing Authority" shall mean any Governmental Entity having jurisdiction
over the assessment, determination, collection, of other imposition of Tax.
"Third-Party Claim" shall have the meaning set forth in Section 8.2(b).
"Treasury Regulations" shall mean the regulations promulgated under the
Code.
ARTICLE XI
MISCELLANEOUS
11.1 Third-Party Beneficiaries. This Agreement is solely for the mutual
-------------------------
benefit of the parties hereto and no other party is intended or shall be deemed
to be a third-party beneficiary hereof.
11.2 Expenses. Except as otherwise provided herein, whether or not the
---------
transactions contemplated hereby are consummated, all costs and expenses
incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense; provided, however, that Purchaser shall pay all costs,
fees and expenses (including attorneys' fees and expenses) incurred in
connection with Section 5.3, all costs, fees and expenses of the Goodwill
Litigation, all costs, fees and expenses relating to the Private Placement and
the Debt Offering and all fees and expenses of Keefe, Bruyette & Woods, Inc.
11.3 Notices. All notices or other communications required or permitted
-------
under this Agreement shall be given in writing sent by hand delivery, telecopy
or by certified or registered mail, postage prepaid, return receipt requested to
the address set forth below:
If to Seller or Superior:
NB Holdings Corporation
NationsBank Corporate Center
100 North Tryon Street
NC1-007-33-02
Charlotte, North Carolina 28255
Telecopy Number: (704) 386-6416
Confirmation Number: (704) 386-5450
Attention: Frank L. Gentry, Executive Vice President
---------
With a copy to:
NationsBank Corporation
NationsBank Corporate Center
100 North Tryon Street
NC1-007-20-01
Charlotte, North Carolina 28255
Telecopy Number: (704) 386-6453
Confirmation Number: (704) 386-9036
Attention: Jacqueline Jarvis Jones, Senior Counsel
---------
If to Purchaser:
SFC Acquisition Corp.
c/o Miller, Hamilton, Snider & Odom, L.L.C.
One Commerce Street
Montgomery, Alabama 36104
Telecopy Number: (334) 265-4533
Confirmation Number: (334) 834-5550
Attention: Willard H. Henson
----------
With a copy to:
Miller, Hamilton, Snider & Odom, L.L.C.
254 State Street
Mobile, Alabama 36603
Telecopy Number: (334) 431-9406
Confirmation Number:(334) 432-1414
Attention: John C. H. Miller, Jr.
----------
11.4 Captions. The captions contained in this Agreement are for reference
--------
purposes only and shall not be construed as a part of this Agreement.
11.5 Further Assurances. The parties shall cooperate and take such
------------------
actions, and execute and deliver such other documents, at and after the Closing
or subsequently, without further consideration, as any other party hereto may
reasonably request in order to carry out the provisions or purposes of this
Agreement and the transactions contemplated hereby.
11.6 Entire Agreement. This Agreement sets forth the parties' final and
----------------
entire agreement with respect to its subject matter and supersedes any and all
prior understandings and agreements with respect thereto other than the
Confidentiality Agreement, which shall remain in full force and effect. The
Schedules attached to this Agreement shall be deemed as fully a part of this
Agreement as if set forth herein in full. None of the parties has made any
representation, warranty, covenant or undertaking of any nature whatsoever,
express or implied, in connection with or relating to the subject matter of this
Agreement other than as expressly set forth herein.
11.7 Amendment; Waiver. This Agreement can be amended, supplemented or
-----------------
changed, and any provision hereof can be waived, only
in a writing making specific reference to this Agreement signed by each of the
parties hereto.
11.8 Assignment. None of the parties hereto may assign any of its rights
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or delegate any of its obligations under this Agreement to any other person or
entity. Any such purported assignment or delegation that is made without the
prior written consent of the other parties to this Agreement shall be void and
of no effect.
11.9 Successors. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that no party may assign this Agreement or any of
its rights or obligations hereunder without the prior written consent of the
other parties.
11.10 Severability. If any one or more of the provisions of this
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Agreement shall be held invalid or unenforceable by a court or other tribunal of
competent jurisdiction, such provision shall be modified or eliminated to the
minimum extent necessary to make it valid and enforceable, and the validity and
enforceability of all other provisions hereof shall not be affected thereof.
11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
11.12 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
NB HOLDINGS CORPORATION
By: /s/ Frank L. Gentry
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Name: Frank L. Gentry
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Title: Senior Vice President
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SUPERIOR FEDERAL BANK, F.S.B.
By: /s/ Joe Edwards, Jr.
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Name: Joe Edwards, Jr.
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Title: President/C.E.O.
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SFC ACQUISITION CORP.
By: /s/ John C. H. Miller, Jr.
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Name: John C. H. Miller, Jr.
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Title: Acting Chairman
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