ARTICLES OF MERGER OF FIRST COMMONWEALTH CORPORATION, A VIRGINIA CORPORATION WITH AND INTO UNITED TRUST GROUP, INC., AN ILLINOIS CORPORATION Pursuant to the provisions of Sections 13.1-720 and 13.1-722 of the Virginia Stock Corporation Act (the "VSCA"), United Trust Group, Inc., an Illinois corporation ("UTG"), as the surviving entity of the proposed merger of First Commonwealth Corporation, a Virginia corporation ("FCC"), with and into UTG, hereby adopts the following Articles of Merger for the purpose of merging FCC with and into UTG. 1. Attached hereto as Annex A and made a part hereof, is a copy of the Plan of Merger (the "Plan of Merger") pursuant to which FCC shall merge with and into UTG in accordance with the laws of the Commonwealth of Virginia and the State of Illinois. 2. Pursuant to Section 13.1-722(A)(3) of the VSCA, UTG is the only party to the Plan of Merger that was not organized under the laws of the Commonwealth of Virginia; UTG was incorporated under the laws of the State of Illinois. UTG shall be the surviving corporation of the merger and shall continue to conduct business under its present name, United Trust Group, Inc. The merger contemplated by the Plan of Merger is permitted under the laws of the State of Illinois, and UTG complied with such laws in effecting the merger. Under the laws of the State of Illinois, no approval of the Plan of Merger by the shareholders of UTG was necessary. 3. UTG, as the surviving corporation of the merger, is hereby deemed to make the appointment and agreement contemplated by Section 13.1-722(B) of the VSCA. 4. The Plan of Merger was submitted to the shareholders of FCC by its board of directors in accordance the VSCA. The designation, number of outstanding shares, number of votes entitled to be cast by each voting group entitled to vote separately on the Plan of Merger, and the number of votes cast for and against the Plan of Merger by each voting group was as follows: Designation of shares Common Stock Number of outstanding shares 54,385 Number of votes entitled to be cast 54,385 Total number of votes cast FOR the Plan of Merger 46,728 Total number of votes cast AGAINST the Plan of Merger 417 The number of votes cast for the Plan of Merger set forth above by the holders of FCC Common Stock was sufficient for approval by that voting group under Section 13.1-718 of the VSCA. 5. These Articles of Merger shall become effective at 10:00 a.m., eastern daylight time (9:00 a.m., central daylight time), on Wednesday, June 12, 2002. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, FCC and UTG have executed these Articles of Merger as of the 30th day of May, 2002. FIRST COMMONWEALTH CORPORATION UNITED TRUST GROUP, INC., a Virginia corporation an Illinois corporation By: __________________________________ By:___________________________ Theodore C. Miller, Secretary Theodore C. Miller, Secretary Agreement and Plan of Reorganization by and between United Trust Group, Inc. and First Commonwealth Corporation Dated as of June 5, 2001 AGREEMENT AND PLAN OF REORGANIZATION THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and entered into as of June 5, 2001 by and between UNITED TRUST GROUP, INC., an Illinois corporation ("UTG"), and FIRST COMMONWEALTH CORPORATION, a Virginia corporation ("FCC") (UTG and FCC shall sometimes be referred to herein individually as a "Party" and collectively as the "Parties"). RECITALS WHEREAS, as of the date of this Agreement, UTG owns more than 80% of the outstanding shares of common stock of FCC, and the Boards of Directors of each of UTG and FCC believe it is in the best interests of each company and its respective shareholders for FCC to merge with and into UTG (the "Merger"), pursuant to which each share of common stock of FCC ("FCC Common Stock") issued and outstanding immediately prior to the Effective Time (as defined below) will be converted into the right to receive the Merger Consideration (as defined below), subject to certain exceptions described in this Agreement. NOW, THEREFORE, in consideration of the mutual agreements, covenants and other promises set forth herein, the mutual benefits to be gained by the performance thereof, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, the Parties hereby agree as follows: ARTICLE I THE REORGANIZATION Section 1.01 The Merger. At the Effective Time and subject to and upon the terms and conditions of this Agreement (including the Plan of Merger contemplated by Section 1.02) and the applicable provisions of the Illinois Business Corporation Act ("IBCA") and the Virginia Stock Corporation Act ("VSCA"), FCC shall be merged with and into UTG, the separate corporate existence of FCC shall cease and UTG shall continue as the surviving corporation. The corporation surviving the Merger is sometimes referred to hereinafter as the "Surviving Corporation." Section 1.02 Effective Time. Unless this Agreement is earlier terminated pursuant to Section 6.01, the closing of the Merger (the "Closing") will take place no later than five (5) business days following satisfaction or waiver of the conditions set forth in Article V hereof, at the offices of Wyatt, Tarrant & Combs, LLP, 2800 PNC Plaza, Louisville, Kentucky, unless another time and/or place is mutually agreed upon in writing by FCC and UTG. The date upon which the Closing actually occurs shall be referred to herein as the "Closing Date." On the Closing Date, the Parties shall cause the Merger to be consummated by filing the Plan of Merger, in the form attached hereto as Exhibit A and being executed by the Parties simultaneously with the execution hereof, together with articles of merger, with the Virginia State Corporation Commission and the Illinois Secretary of State (the "Plan of Merger"), in accordance with the applicable provisions of the VSCA and the IBCA (the time at which the Merger has become effective under both the VSCA and the IBCA after the filing of the Plan of Merger and articles of merger with the Virginia State Corporation Commission and the Illinois Secretary of State shall be referred to herein as the "Effective Time"). Section 1.03 Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of the IBCA, the VSCA, the Plan of Merger and this Agreement. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises of FCC shall vest in the Surviving Corporation, and all debts, liabilities and duties of FCC shall become the debts, liabilities and duties of the Surviving Corporation. At the Effective Time, the separate corporate existence of FCC shall cease. Section 1.04 Certificate of Incorporation and Bylaws. (a) The articles of incorporation of UTG, as in effect immediately prior to the Effective Time, shall be the articles of incorporation of the Surviving Corporation at the Effective Time until thereafter amended in accordance with applicable law and as provided in such articles of incorporation. (b) The bylaws of UTG, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation at the Effective Time until thereafter amended in accordance with applicable law and as provided in the articles of incorporation of the Surviving Corporation and such bylaws. Section 1.05 Directors and Officers. The directors of UTG immediately prior to the Effective Time shall be the directors of the Surviving Corporation immediately after the Effective Time, each to hold the office of a director of the Surviving Corporation in accordance with the provisions of applicable law, and the articles of incorporation and bylaws of the Surviving Corporation, as applicable, until their successors are duly elected and qualified. The officers of UTG immediately prior to the Effective Time shall be the officers of the Surviving Corporation immediately after the Effective Time, each to hold office in accordance with the provisions of the bylaws of the Surviving Corporation, until their successors are duly appointed. Section 1.06 Effect of Merger on the Capital Stock of the Constituent Corporations. (a) Effect on FCC Capital Stock. (i) At the Effective Time, by virtue of the Merger and without any action on the part of UTG, FCC or any of the holders of shares of FCC Common Stock (the "Shareholders"), each share of FCC Common Stock issued and outstanding immediately prior to the Effective Time shall cease to be outstanding and, other than any shares of FCC Common Stock to be canceled pursuant to Section 1.06(a)(ii) or Section 1.06(a)(iii), shall be converted into and become the right to receive an amount equal to $250, payable by check or cash (the "Merger Consideration"). (ii) At the Effective Time, by virtue of the Merger and without any action on the. part of UTG, FCC or any of the Shareholders, each share of FCC Common Stock issued and outstanding immediately prior to the Effective Time and held in the treasury of FCC or by any subsidiary thereof shall be cancelled and retired and cease to exist and no payment shall be made with respect thereto. (iii)At the Effective Time, by virtue of the Merger and without any action on the part of UTG, FCC or any of the Shareholders, each share of FCC Common Stock issued and outstanding immediately prior to the Effective Time and held by UTG shall be cancelled and retired and cease to exist and no payment shall be made with respect thereto. (b) Capital Stock of UTG. At the Effective Time, by virtue of the Merger and without any action on the part of UTG or FCC, each share of UTG common stock, no par value per share, issued and outstanding immediately prior to the Effective Time, shall remain outstanding as one validly issued, fully paid and nonassessable share of Common Stock of the Surviving Corporation and shall not be converted into any other securities or cash in the Merger. The certificates for such shares shall not be surrendered or in any way modified by reason of the Merger. (c) Withholding Taxes. Any cash amounts payable to any Shareholder pursuant to this Article I shall be subject to, and an amount may be withheld therefrom equal to, the amount of any requisite state, local, federal and foreign withholding taxes. Section 1.07 Preparation of Proxy Statement; Shareholders' Meeting. (a) As promptly as reasonably practicable following the date hereof, FCC shall prepare and shall cause to be filed with the Securities and Exchange Commission ("SEC") proxy materials mutually acceptable to FCC and UTG which shall constitute the proxy statement relating to the matters to be submitted to the Shareholders at the Shareholders' Meeting (as defined in (b) below) (the "Proxy Statement"). FCC and UTG shall also prepare, and file with the SEC, a statement on Schedule 13E-3 (together with any supplements or amendments thereto, the "Schedule 13E-3"). Each of FCC and UTG shall use reasonable best efforts to have the Proxy Statement and, if applicable, the Schedule 13E-3, cleared by the SEC as necessary to consummate the Merger and the transactions contemplated hereby. UTG and FCC shall, as promptly as practicable after receipt thereof, provide the other Party copies of any written comments and advise the other Party of any oral comments, with respect to the Proxy Statement or the Schedule 13E-3 received from the SEC. The Parties shall cooperate and provide the other with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement or the Schedule 13E-3 prior to filing such with the SEC, and will provide each other with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Proxy Statement or the Schedule 13E-3 shall be made without the approval of both Parties, which approval shall not be unreasonably withheld or delayed; provided that with respect to documents filed by a Party which are incorporated by reference in the Schedule 13E-3 or the Proxy Statement, this right of approval shall apply only with respect to information relating to the other Party or its business, financial condition or results of operations. FCC will use reasonable best efforts to cause the Proxy Statement and the Schedule 13E-3 to be mailed to the Shareholders, as promptly as practicable after the same is cleared by the SEC. Each Party will advise the other, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement or the Schedule 13E-3. If at any time prior to the Effective Time any information relating to UTG or FCC, or any of their respective affiliates, officers or directors, should be discovered by UTG or FCC, which information should be set forth in an amendment or supplement to either the Schedule 13E-3 or the Proxy Statement so that any of such documents would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Party and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the Shareholders. (b) FCC shall duly take all lawful action to call, give notice of, convene and hold a meeting of the Shareholders on a date determined in accordance with the mutual agreement of FCC and UTG (the "Shareholders' Meeting") for the purpose of obtaining the approval of this Agreement and the transactions contemplated hereby (including the Merger) by the Shareholders (the "FCC Shareholder Approval") and shall its use reasonable best efforts to solicit the vote of the Shareholders. Subject to their fiduciary duties, the Board of Directors of FCC shall recommend adoption of this Agreement by the Shareholders. Section 1.08 Exchange Procedures (a) Promptly after the Effective Time, the Surviving Corporation shall mail (or shall cause an exchange agent appointed by the Surviving Corporation to mail) to each record holder, as of the Effective Time, of any outstanding certificate or certificates which immediately prior to the Effective Time represented shares of FCC Common Stock (the "FCC Certificates") a (i) notice of the effectiveness of the Merger and (ii) form letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the FCC Certificates shall pass only upon proper delivery of the FCC Certificates to the Surviving Corporation) and instructions for use in effecting the surrender of the FCC Certificates for payment therefor. Upon surrender to the Surviving Corporation of an FCC Certificate, together with the appropriate and duly executed transmittal materials described in the foregoing sentence and any other required documents, the holder of such FCC Certificate shall receive in exchange therefore the applicable Merger Consideration determined pursuant to Section 1.06 hereof, and such Certificate shall forthwith be cancelled. No interest will be paid or accrued on any consideration payable upon the surrender of the FCC Certificates. If payment is to be remitted to a name other than that in which the FCC Certificate surrendered for exchange is registered, it shall be a condition of such exchange that the FCC Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer and that the person requesting such exchange shall pay to UTG or its transfer agent any transfer or other taxes required by reason of the payment of the applicable Merger Consideration to a person other than the registered holder of the FCC Certificate surrendered, or establish to the satisfaction of UTG or its transfer agent that such tax has been paid or is not applicable. Until surrendered in accordance with the provisions of this Section 1.08, each FCC Certificate (other than FCC Certificates representing shares to be cancelled pursuant to Sections 1.06(a)(ii) or 1.06(a)(iii)) shall represent for all purposes only the right to receive the applicable Merger Consideration set forth in Section 1.06, without any interest thereon, subject to any required withholding taxes. (b) From and after the Effective Time, the holders of FCC Certificates evidencing shares of FCC Common Stock issued and outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares, except as otherwise provided herein, the Plan of Merger or by applicable law. (c) Any holders of shares of FCC Common Stock prior to the Merger who have not complied with this Article I and surrendered their FCC Certificates to the Surviving Corporation in accordance with this Section 1.08 within six (6) months after the Effective Time shall thereafter look only to the Surviving Corporation as general creditors thereof for payment of their claim for the applicable Merger Consideration to which such holders may be entitled hereunder by virtue of the Merger. (d) Neither FCC nor the Surviving Corporation (nor any exchange agent appointed by the Surviving Corporation pursuant to this Section 1.08) shall be liable to any Shareholder in respect of any Merger Consideration to which such Shareholder was otherwise entitled pursuant to this Agreement delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If any FCC Certificates shall not have been surrendered prior to one (1) year after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration, if any, in respect of such certificate would otherwise escheat to or become the property of any governmental entity), any such Merger Consideration in respect of such certificate shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto. (e) From and after the Effective Time, there shall be no transfers of the shares of FCC Common Stock on the stock transfer books of the Surviving Corporation which were outstanding immediately prior to the Effective Time. (f) In the event any FCC Certificate shall have been lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed certificate, upon the making of an affidavit of that fact by the holder thereof, such amount of the Merger Consideration, if any, as may be required pursuant to Section 1.06 hereof; provided, however, that the Surviving Corporation may, in its discretion and as a condition precedent to the issuance thereof, require the Shareholder who is the owner of such lost, stolen or destroyed certificate to deliver a bond in such amount as it may reasonably direct against any claim that may be made against the Surviving Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 1.09 Taking of Necessary Action; Further Action. If at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of FCC, UTG and the officers and directors of the UTG are fully authorized in the name of UTG or otherwise to take, and will take, all such lawful and necessary action. Article II. REPRESENTATIONS AND WARRANTIES OF FCC FCC hereby represents and warrants to UTG that, except as disclosed in the FCC Filed SEC Reports (as defined below): Section 2.01 Organization, Standing and Power; Subsidiaries. (a) FCC is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Virginia and has the corporate power to own its properties and to carry on its business as now being conducted. Each subsidiary of FCC is a corporation or other organization duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, has the requisite corporate or other power and authority to own, lease and operate its properties and to carry on its business as is now being conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not reasonably be expected to have a Material Adverse Effect on FCC. For purposes of this Agreement, the term "Material Adverse Effect" on a Party shall mean an event, change or occurrence which, individually or together with any other event, change or occurrence, has a material impact on (a) the financial position, business, or results of operations of such Party and its subsidiaries (though with respect to UTG, excluding FCC and its subsidiaries), taken as a whole, or (b) the ability of such Party to perform its obligations under this Agreement or to consummate the Merger, other than any event, change or occurrence relating to (i) the United States economy, the regional economy in which such Party conducts business or the securities markets in general or (ii) this Agreement or the transactions contemplated hereby or announcement hereof. (b) Each of FCC and its subsidiaries is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties make such qualification necessary other than in such jurisdictions where the failure so to qualify or to be in good standing would not reasonably be expected to have a Material Adverse Effect on FCC. FCC has made available to UTG a true and correct copy of its articles of incorporation and bylaws, each as amended to date and in full force and effect on the date hereof. Section 2.02 Capital Structure. (a) The authorized capital stock of FCC consists of 62,500 shares of FCC Common Stock, of which 54,385 shares are issued and outstanding as of the date hereof (reflecting the 1 for 400 reverse stock split approved by FCC's Board of Directors on March 27, 1997, but for which FCC did not obtain shareholder approval or file an amendment to its articles of incorporation). All outstanding shares of FCC Common Stock are duly authorized, validly issued, fully paid and nonassessable and free of any preemptive rights. (b) (i) FCC does not have any stock option plan or other stock-related plan providing for equity compensation of any person, (ii) there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which FCC is a party or by which it is bound obligating it to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of FCC Common Stock, (iii) FCC is not obligated to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any option, warrant, call, right, commitment or agreement upon the closing of the transactions contemplated hereby or upon the occurrence of any other event, and (iv) no bonds, debentures, notes or other indebtedness of FCC exists having the right to vote on any matters on which holders of capital stock of FCC may vote. Section 2.03 Authority; No Conflicts. (a) Subject, in the case of the consummation of the Merger, to the FCC Shareholder Approval, any approvals or clearances required under the applicable insurance laws of any state, the filings contemplated by Section 1.07 and the filing of the Plan of Merger, and related articles of merger, with the Virginia State Corporation Commission and the Illinois Secretary of State, (i) FCC has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of FCC and no further action is required on the part of FCC to authorize this Agreement and the transactions contemplated hereby, (iii) this Agreement, the Plan of Merger and the Merger have been unanimously approved and adopted by the Board of Directors of FCC in accordance with Virginia law, and the articles of incorporation and bylaws of FCC, and (iv) this Agreement has been duly executed and delivered by FCC, and assuming the due authorization, execution and delivery by the other Party hereto, constitutes the valid and binding obligation of FCC, enforceable against it in accordance with its terms, except as such enforceability may be subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. (b) The execution and delivery by FCC of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or result in any violation of or default under (with or without notice or lapse of time, or both) or give rise to a right of termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (any such event, a "Conflict") (i) any provision of the articles of incorporation or bylaws of FCC, (ii) except as would not reasonably be expected to have a Material Adverse Effect on FCC, any mortgage, indenture, lease, contract, covenant or other agreement, instrument or commitment, permit, concession, franchise or license (individually a "Contract") to which FCC or any of its subsidiaries or any of their respective properties or assets (including intangible assets), is subject, or (iii) except as would not reasonably be expected to have a Material Adverse Effect on FCC, any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to FCC or any of its subsidiaries or any of their respective properties or assets (tangible and intangible). Section 2.04 Reports and Financial Statements. (a) FCC has filed all required registration statements, prospectuses, reports, schedules, forms, statements and other documents required to be filed by it with the SEC since December 31, 1998 (collectively, the "FCC SEC Reports"). No subsidiary of FCC is required to file any form, report, registration statement, prospectus or other document with the SEC. None of the FCC SEC Reports, as of their respective dates (and, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), contained or will contain any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All of such FCC SEC Reports, as of their respective dates (and as of the date of any amendment to the respective FCC SEC Report), complied (and with respect to FCC SEC Reports filed after the date hereof, will comply) as to form in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the "1933 Act"), and the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations promulgated thereunder. (b) Each of the financial statements (including the related notes) included or incorporated by reference in the FCC SEC Reports presents fairly, in all material respects, the consolidated financial position and consolidated results of operations and cash flows of FCC and its consolidated subsidiaries as of the respective dates or for the respective periods set forth therein, all in conformity with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involved except as otherwise noted therein, and subject, in the case of the unaudited interim financial statements of FCC, to the absence of notes and normal year-end adjustments that have not been and are not expected to be material in amount. Except as disclosed in the FCC SEC Reports filed and publicly available prior to the date hereof (the "FCC Filed SEC Reports"), FCC and its subsidiaries have not incurred any liabilities that are of a nature that would be required to be disclosed on a balance sheet of FCC and its subsidiaries or the footnotes thereto prepared in conformity with GAAP, other than (A) liabilities incurred in the ordinary course of business, (B) liabilities incurred in accordance with Section 4.01, or (C) liabilities that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FCC. Section 2.05 Information Supplied. The information supplied by FCC for inclusion or incorporated by reference in (A) the Schedule 13E-3 or any amendment or supplement thereto will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Proxy Statement or any amendment or supplement thereto to be sent to the Shareholders in connection with the Shareholders' Meeting will not, on the date the Proxy Statement is first mailed to the Shareholders or at the time of the Shareholders' Meeting or at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Proxy Statement and the Schedule 13E-3 will comply as to form in all material respects with the requirements of the 1934 Act and the 1933 Act and the regulations promulgated thereunder. Notwithstanding the foregoing, no representation or warranty is made with respect to statements made or incorporated by reference in the Schedule 13E-3 or the Proxy Statement based on information supplied by or on behalf of UTG for inclusion or incorporation by reference. Section 2.06 Absence of Changes or Events. Except for liabilities permitted to be incurred in accordance with this Agreement or the transactions contemplated hereby, since December 31, 2000, FCC and its subsidiaries have conducted their business only in the ordinary course and in a manner consistent with past practice and, since December 31, 2000, there have not been any changes, circumstances or events which, individually or in the aggregate, have had, or would reasonably be expected to have, a Material Adverse Effect on FCC Section 2.07 Litigation; Compliance with Laws. (a) There are no actions pending or, to the knowledge of FCC, threatened, against or affecting FCC or any subsidiary of FCC or any property or asset of FCC or any subsidiary of FCC which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on FCC, nor are there any judgments, decrees, injunctions, rules or orders of any Governmental Entity (as defined below) or arbitrator outstanding against FCC or any subsidiary of FCC which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on FCC. As used in this Agreement, the term "Governmental Entity" shall include any supranational, national, state, municipal, local or foreign government, any instrumentality, subdivision, court, administrative agency or commission or other authority thereof, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority. (b) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FCC, FCC and its subsidiaries hold all permits, licenses, franchises, variances, exemptions, orders and approvals of all Governmental Entities which are necessary for the operation of the businesses as now being conducted of FCC and its subsidiaries, taken as a whole (the "FCC Permits"), and no suspension or cancellation of any of the FCC Permits is pending or, to the knowledge of FCC, threatened. FCC and its subsidiaries are in compliance with the terms of the FCC Permits, except where the failure to so comply, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FCC. Neither FCC nor its subsidiaries is in violation of, and FCC and its subsidiaries have not received any notices of violations with respect to, any laws, statutes, ordinances, rules or regulations of any Governmental Entity, except for violations which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FCC. Section 2.08 Brokers' and Finders' Fees. FCC has not incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby, except for compensation payable to the Financial Advisor (as defined in Section 5.03(c)). Section 2.09 Representations Complete. Neither any of the representations or warranties made by FCC (as modified by the FCC SEC Reports) in this Agreement, nor any statements made in any exhibit, schedule or certificate furnished by FCC pursuant to this Agreement, contains or will contain at the Effective Time, any untrue statement of a material fact, or omits or will omit at the Effective Time to state any material fact necessary in order to make the statements contained herein or therein, in the light of the circumstances under which they were made, not misleading. Article III. REPRESENTATIONS AND WARRANTIES OF UTG UTG hereby represents and warrants to FCC that, except as disclosed in all registration statements, prospectuses, reports, schedules, forms and other documents filed by UTG with the SEC since December 31, 1998 and prior to the date hereof (the "UTG Filed SEC Reports"): Section 3.01 Organization, Standing and Power; Subsidiaries. (a) UTG is a corporation duly organized, validly existing and in good standing under the laws of the State of Illinois and has the corporate power to own its properties and to carry on its business as now being conducted. Each subsidiary of UTG (other than FCC or any subsidiary of FCC) is a corporation or other organization duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, has the requisite corporate or other power and authority to own, lease and operate its properties and to carry on its business as is now being conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not reasonably be expected to have a Material Adverse Effect on UTG. (b) Each of UTG and its subsidiaries (other than FCC and FCC's subsidiaries) is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties make such qualification necessary other than in such jurisdictions where the failure so to qualify or to be in good standing would not reasonably be expected to have a Material Adverse Effect on UTG. Section 3.02 Authority; No Conflicts. (a) Subject, in the case of the consummation of the Merger, to any approvals or clearances required under the applicable insurance laws of any state, the filings contemplated by Section 1.07 and the filing of the Plan of Merger, and related articles of merger, with the Virginia State Corporation Commission and the Illinois Secretary of State, (i) UTG has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, (ii) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of UTG and no further action is required on the part of UTG to authorize the Agreement and the transactions contemplated hereby, (iii) this Agreement, the Plan of Merger and the Merger have been unanimously approved and adopted by the Board of Directors of UTG in accordance with Illinois law, and the articles of incorporation and bylaws of UTG, and (iv) this Agreement has been duly executed and delivered by UTG, and assuming the due authorization, execution and delivery by the other Party hereto, constitutes the valid and binding obligation of UTG, enforceable against it in accordance with its terms, except as such enforceability may be subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and rules of law governing specific performance, injunctive relief or other equitable remedies. (b) The execution and delivery by UTG of this Agreement and the consummation of the transactions contemplated hereby will not result in a Conflict under (i) any provision of the articles of incorporation or bylaws of UTG, (ii) except as would not reasonably be expected to have a Material Adverse Effect on UTG, any Contract to which UTG or any of its subsidiaries or any of their respective properties or assets (including intangible assets), is subject, or (iii) except as would not reasonably be expected to have a Material Adverse Effect on UTG, any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to UTG or any of its subsidiaries (other than FCC or any FCC subsidiary) or any of their respective properties or assets (tangible and intangible). Section 3.03 Information Supplied. The information supplied by UTG for inclusion or incorporated by reference in (A) the Schedule 13E-3 or any amendment or supplement thereto will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Proxy Statement or any amendment or supplement thereto to be sent to the Shareholders in connection with the Shareholders' Meeting will not, on the date the Proxy Statement is first mailed to the Shareholders or at the time of the Shareholders' Meeting or at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Schedule 13E-3 will comply as to form in all material respects with the requirements of the 1934 Act and the regulations promulgated thereunder. Notwithstanding the foregoing, no representation or warranty is made with respect to statements made or incorporated by reference in the Schedule 13E3 or the Proxy Statement based on information supplied by or on behalf of FCC for inclusion or incorporation by reference. Section 3.04 Capital Resources. UTG has sufficient capital resources to pay the total Merger Consideration and to consummate all of the transactions contemplated by this Agreement and the Plan of Merger. Section 3.05 Brokers' and Finders' Fees. UTG has not incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with the Agreement or any transaction contemplated hereby. Section 3.06 Representations Complete. Neither any of the representations or warranties made by UTG (as modified by the UTG Filed SEC Reports) in this Agreement, nor any statements made in any exhibit, schedule or certificate furnished by UTG pursuant to this Agreement, contains or will contain at the Effective Time, any untrue statement of a material fact, or omits or will omit at the Effective Time to state any material fact necessary in order to make the statements contained herein or therein, in the light of the circumstances under which they were made, not misleading. Article IV. COVENANTS Section 4.01 Conduct of Business of FCC Prior to the Effective Time. During the period from the date of this Agreement and continuing until the Effective Time, FCC agrees as to itself and its subsidiaries that (except as expressly contemplated or permitted by this Agreement or to the extent that UTG shall otherwise consent in writing, such consent not to be unreasonably withheld) FCC and its subsidiaries shall carry on their respective businesses in the usual, regular and ordinary course in all material respects, in substantially the same manner as heretofore conducted, and shall use their reasonable best efforts to preserve intact their present lines of business and preserve their relationships with customers and others having business dealings with them. Section 4.02 Governmental Filings. Each Party shall file all reports required to be filed by it with the SEC (and all other Governmental Entities) between the date of this Agreement and the Effective Time and shall, if requested by the other Party and to the extent permitted by law or regulation or any applicable confidentiality agreement, deliver to the other Party copies of all such reports promptly after such request. Section 4.03 Access to Information. FCC shall afford UTG and its accountants, counsel and other representatives, reasonable access during the period prior to the Effective Time to (i) all of FCC's properties, books, contracts, commitments and records, (ii) all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of FCC as UTG may reasonably request, and (iii) all employees of FCC as identified by UTG. FCC agrees to provide to UTG and its accountants, counsel and other representatives copies of internal financial statements (including tax returns and supporting documentation) promptly upon request. No information or knowledge obtained in any investigation pursuant to this Section 4.03 shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the parties to consummate the Merger in accordance with the terms and provisions hereof. Section 4.04 Fees and Expenses. Regardless whether the Merger is consummated, FCC and UTG will be responsible for and bear all of their own costs and expenses incurred at any time in connection with pursuing or consummating the Merger, except expenses incurred in connection with the filing, printing and mailing of the Proxy Statement and the Schedule 13E-3, which shall be shared equally by FCC and UTG. Section 4.05 Public Disclosure. The initial press release pertaining to the transactions contemplated by this Agreement shall be a joint press release and thereafter each Party shall consult with the other before issuing communications to employees regarding the transactions contemplated by this Agreement or any press release or otherwise making any public statements with respect to this Agreement or the Merger and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by law or any listing agreement with Nasdaq. FCC and UTG shall each provide to the other a copy of each press release or other public statement relating to its business reasonably in advance of making such release or statement. Section 4.06 Consents. FCC shall use commercially reasonable efforts to obtain the consents, waivers and approvals under any of the contracts to which FCC or its subsidiaries are parties to the extent deemed appropriate or necessary by any Party in connection with the Merger so as to preserve all rights of, and benefits to, the Surviving Corporation thereunder from and after the Effective Time. Section 4.07 Indemnification. If the Merger is consummated, UTG agrees to assume and be responsible for all obligations of FCC as of the Effective Time to provide indemnification from liabilities for acts or omissions occurring at or prior to the Effective Time in favor of the current or former directors or officers of FCC as provided in FCC's articles of incorporation or bylaws, as in effect on the date of this Agreement, for a period of six (6) years after the Effective Time. Article V. CONDITIONS TO THE MERGER Section 5.01 Conditions to Obligations of Each Party to Effect the Merger. The respective obligations of FCC and UTG to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of the following conditions: (a) FCC Shareholder Approval. FCC shall have received the FCC Shareholder Approval. (b) No Order. No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Merger illegal or otherwise prohibiting consummation of the Merger. (c) No Injunctions or Restraints; Illegality. No temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger shall be in effect, nor shall any proceeding brought by an administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, seeking any of the foregoing be pending. Section 5.02 Conditions to the Obligations of UTG. The obligation of UTG to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived, in writing, exclusively by UTG: (a) Representations, Warranties and Covenants. (i) The representations and warranties of FCC in this Agreement shall have been true and correct in all material respects on the date they were made and shall be true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of such time (other than the representations and warranties of FCC as of a specified date, which will be true and correct in all material respects as of such date), and (ii) FCC shall have performed and complied in all material respects with all covenants and obligations under this Agreement required to be performed and complied with by FCC as of the Closing. (b) Governmental Approval. Approvals from any court, administrative agency or commission or other federal, state, county, local or other foreign governmental authority, instrumentality, agency or commission (if any) deemed appropriate or necessary by UTG shall have been timely obtained. (c) Litigation. There shall be no action, suit, claim or proceeding of any nature pending, or overtly threatened, against FCC or its subsidiaries, their respective properties or any of their respective officers or directors, arising out of, or in any way connected with, the Merger or the other transactions contemplated by the terms of this Agreement. (d) Third Party Consents. UTG shall have received copies of all consents or approvals of third parties it deems necessary or appropriate. (e) Certificate of FCC. UTG shall have received a certificate, validly executed by or on behalf of FCC to the effect that, as of the Closing: (i) all representations and warranties made by FCC in this Agreement are true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of such time (other than the representations and warranties of FCC as of a specified date, which will be true and correct in all material respects as of such date); and (ii) all covenants and obligations under this Agreement to be performed by FCC on or before the Closing have been so performed in all material respects. (f) Certificate of Secretary of FCC. UTG shall have received a certificate, validly executed by the Secretary of FCC, certifying as to (i) the terms and effectiveness the articles of incorporation and the bylaws of FCC, (ii) the valid adoption of resolutions of the Board of Directors of FCC and the Shareholders approving this Agreement and the approval of the transactions contemplated hereby and that such approvals are in full force and effect without modification, (iii) the incumbency of the officers of FCC executing this Agreement and any agreements contemplated hereby or other instruments or certificates relating hereto or thereto. (g) No Material Adverse Effect - No event, condition or circumstances shall have occurred or be discovered after the date of this Agreement which has had, or is reasonably likely to have, a Material Adverse Effect on FCC. Section 5.03 Conditions to Obligations of FCC. The obligations of FCC to consummate and effect this Agreement and the transactions contemplated hereby shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived, in writing, exclusively by FCC: (a) Representations, Warranties and Covenants. (i) The representations and warranties of UTG in this Agreement (other than the representations and warranties of UTG as of a specified date, which will be true and correct in all material respects as of such date) shall be true and correct in all material respects on the date they were made and shall be true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of such time, and (ii) UTG shall have performed and complied in all material respects with all covenants and obligations of this Agreement required to be performed and complied with by such parties as of the Closing. (b) Certificate of UTG. FCC shall have received a certificate executed on behalf of UTG by a corporate officer to the effect that, as of the Closing: (i) all representations and warranties made by UTG in this Agreement (other than the representations and warranties of UTG as of a specified date, which will be true and correct as of such date) are true and correct in all material respects on and as of the Closing Date as though such representations and warranties were made on and as of such time; and (ii) all covenants and obligations under this Agreement to be performed by UTG on or before the Closing have been so performed in all material respects. (c) Fairness Opinion - The Board of Directors of FCC shall have received an opinion from Morgan Keegan and Company, Inc. (the "Financial Advisor") that the transactions contemplated hereby, including the Merger Consideration to be paid on consummation of the Merger, is fair from a financial standpoint as to FCC and the Shareholders. (d) Governmental Approval. Approvals from any court, administrative agency or commission or other federal, state, county, local or other foreign governmental authority, instrumentality, agency or commission (if any) deemed appropriate or necessary by FCC shall have been timely obtained. Article VI. TERMINATION, AMENDMENT AND WAIVER Section 6.01 Termination. This Agreement may be terminated and the Merger abandoned at any time prior to the Closing (including after receipt of the FCC Shareholder Approval): (a) by mutual, written agreement of FCC and UTG; (b) by FCC or by UTG, if the Closing Date shall not have occurred by December 31, 2001; (c) by FCC or by UTG upon the failure of any condition set out in Section 5.01; (d) by UTG if there shall be any action taken, or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Merger by any Governmental Entity, which would (i) prohibit UTG's ownership or operation of any portion of the business of FCC or its subsidiaries, or (ii) compel UTG to dispose of or hold separate all or a material portion of the business or assets of the FCC, its subsidiaries or UTG as a result of the Merger; or (e) by UTG if UTG is not in material breach of its obligations under this Agreement and there has been any event, condition or circumstances occur or that is discovered after the date of this Agreement which has had, or is reasonably likely to have, a Material Adverse Effect on FCC. Section 6.02 Effect of Termination. In the event of termination of this Agreement as provided in Section 6.01, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of UTG, FCC or the Shareholders, or their respective officers, directors or shareholders, if applicable; provided, however, that, the provisions of Section 4.04 and 4.05, Article VII and this Section 6.02 shall remain in full force and effect and survive any termination of this Agreement pursuant to the terms of this Article VI. Section 6.03 Amendment. This Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of both Parties. Section 6.04 Extension; Waiver. At any time prior to the Closing, UTG, on the one hand, and FCC, on the other hand, may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations of the other Party, (ii) waive any inaccuracies in the representations and warranties made to such Party contained herein or in any document delivered pursuant hereto, and (iii) waive compliance with any of the agreements or conditions for the benefit of such Party contained herein. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. Article VII. GENERAL PROVISIONS Section 7.01 Non-Survival of Representations, Warranties and Agreements. None of the representations, warranties, covenants and other agreements in this Agreement or in any instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, agreements and other provisions, shall survive the Effective Time, except for those covenants, agreements and other provisions contained herein that by their terms apply or are to be performed in whole or in part after the Effective Time, Section 4.04 and this Article VII. Section 7.02 Notices. All notices and other communications hereunder shall be in writing, shall be effective when received, and shall in any event be deemed received and effectively given (i) upon delivery, if delivered personally or by commercial messenger or courier service, (ii) three days after deposit in the U.S. mail, if delivered by registered or certified mail (postage prepaid, return receipt requested), (iii) one business day after the day of facsimile transmission, if sent by facsimile with confirming copy by U.S. mail (first class, postage prepaid), or (iv) one business day after the business day of deposit with Federal Express or similar carrier for overnight delivery, freight prepaid, in each case to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): (a) if to UTG, to: United Trust Group, Inc. 5250 South Sixth Street Springfield, Illinois 62703 Attention: Chief Executive Officer Telephone No.: 217/241-6300 Facsimile No.: 217/241-6578 (b) if to FCC, to: First Commonwealth Corporation 5250 South Sixth Street Springfield, Illinois 62703 Attention: Chief Executive Officer Telephone No.: 217/241-6300 Facsimile No.: 217/241-6578 Section 7.03 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be deemed originals, shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party, it being understood that both Parties need not sign the same counterpart. Section 7.04 Entire Agreement, Assignment. This Agreement, the exhibits hereto, and the documents and instruments and other agreements among the Parties referenced herein: (i) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings both written and oral, among the Parties with respect to the subject matter hereof, (ii) are not intended to confer upon any other person any rights or remedies hereunder, and (iii) shall not be assigned by operation of law or otherwise, except that UTG may assign its rights and delegate its obligations hereunder to any entity or entities that are wholly-owned by UTG, directly or indirectly. Section 7.05 Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as to reasonably effect the intent of the Parties. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. Section 7.06 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, as applied to contracts entered into and wholly to be performed within such state by residents thereof. Each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the federal district courts located within the State of Illinois, in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein unless otherwise provided herein, agrees that process may be served upon them in any manner authorized by the laws of the State of Illinois for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and such process. [SIGNATURE PAGE FOLLOWS] 15091121v4 IN WITNESS WHEREOF, UTG and FCC have caused this Agreement to be signed, all as of the date first written above. UNITED TRUST GROUP, INC. By:________________________________________ Title: President FIRST COMMONWEALTH CORPORATION By:________________________________________ Title: Secretary [Signature Page to the Agreement and Plan of Reorganization between United Trust Group, Inc. and First Commonwealth Corporation]
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10-K Filing
Utg (UTGN) 10-K2002 FY Annual report
Filed: 25 Mar 03, 12:00am