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EXHIBIT 2.1
PLAN OF TAX-FREE REORGANIZATION UNDER
SECTION 355
OF THE INTERNAL REVENUE CODE
AND
AGREEMENT
This Plan
of Tax-Free Reorganization under Section 355 of the Internal
Revenue Code and Agreement (hereinafter
referred to as the "Agreement") made and
entered into as of the 24th day of
November, 2004, by and among those persons
listed on Schedule A attached hereto (each
an "Acquiror" and, collectively, the
"Acquirors"), each a resident of the State
of Tennessee, and Civitas BankGroup,
Inc., a Tennessee corporation (hereinafter
referred to as "Civitas").
W I T N E S S E T H:
WHEREAS,
Civitas owns all of the issued and outstanding shares of
capital
stock of BankTennessee, a Tennessee banking
corporation (hereinafter referred to
as "BT"); and
WHEREAS,
the Acquirors desire to acquire from Civitas, and Civitas
desires
to transfer to the Acquirors, all of the
issued and outstanding shares of
capital stock of BT in exchange for two
million (2,000,000) shares (with an
aggregate value of $17,000,000 based on a
per share price of $8.50 per share) of
Civitas' $0.50 par value voting common
stock (hereinafter referred to as
"Civitas Common Stock") owned by the
Acquirors in the respective amounts set
forth on Schedule A to be delivered on the
Closing Date, all upon the terms and
conditions hereinafter set forth; and
WHEREAS, a
special committee of the Board of Directors of Civitas deems it
desirable, and in the best interest of
Civitas and its shareholders, that the
transaction contemplated by this Agreement
be consummated and qualify as a
"reorganization" under Section 355 of the
Internal Revenue Code of 1986, as
amended;
NOW,
THEREFORE, in consideration of the premises and of the mutual
agreements, provisions, covenants and
grants herein contained, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
For
purposes of this Agreement, in addition to the terms defined
elsewhere
herein, unless the context otherwise
requires, the following terms shall have
the meanings indicated:
"Acquiror"
and "Acquirors" shall have the meaning set forth in the
introductory paragraph of this
Agreement.
"Affiliate" means, when used with respect to a specific Person,
another
Person that directly, or indirectly through
one or more intermediaries, controls
or is controlled by or is under common
control with the Person specified.
"Acquisition Proposal" shall have the meaning set forth in Section
7.1(a).
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"Bank
Regulatory Approval" and "Bank Regulatory Approvals" shall have
the
meanings set forth in Section 5.3(c).
"BT" shall
have the meaning set forth in the introductory paragraph of
this Agreement.
"BT Common
Stock" means BT's $3.00 par value voting common stock.
"BT
Counsel" means Burch, Porter & Johnson, PLLC.
"Civitas"
shall have the meaning set forth in the introductory paragraph
of this Agreement.
"Civitas
Common Stock" shall have the meaning set forth in the second
recital of this Agreement.
"Civitas
Counsel" means Baker, Donelson, Bearman, Caldwell &
Berkowitz,
P.C.
"Civitas
Disclosure Letter" means the Disclosure Letter delivered to
Acquirors by Civitas on or before the date
hereof.
"Civitas
Financial Advisor" means Keefe, Bruyette & Woods, Inc.
"Closing"
means the consummation of the transfer of the BT Common Stock
in
exchange for the Exchange Shares as
provided in this Agreement.
"Closing
Date" means the second business day after the last of the
conditions set forth in Article IX hereof
shall have been fulfilled or waived,
or any other date that may be mutually
agreed upon by the parties hereto.
"Code"
means the Internal Revenue Code of 1986, as amended from time
to
time, and any regulations or published
rulings promulgated or issued thereunder.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended.
"Exchange
Shares" shall have the meaning set forth in Section 3.1.
"GAAP" means
generally accepted accounting principles, consistently
applied.
"Knowledge" means, with respect to any Person, to that Person's
actual
knowledge as of the date of this Agreement
and, if the Person is a corporation,
to the actual knowledge of the directors
and executive officers of that Person
as of the date of this Agreement.
"Material
Adverse Change" or "Material Adverse Effect" means, subject to
the qualifications or limitations set forth
in this definition, when used with
respect to a Person, any change or effect
that is or would reasonably be
expected (so far as can be foreseen at the
time) to be materially adverse to the
assets, condition (financial or otherwise)
or results of operations of that
Person and its Subsidiaries taken as a
whole. With respect to Civitas, a
Material Adverse Change or Material Adverse
Effect shall not be deemed to have
occurred unless a change, effect, condition
or occurrence is or would reasonably
be expected to materially adversely affect
the ability of Civitas to perform its
obligations hereunder. For the purposes of
this Agreement, a Material Adverse
Change
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shall not be deemed to have occurred or a
Material Adverse Effect shall not be
deemed to exist with respect to BT unless a
change or effect causes or results
in a liability or expense in excess of
$500,000.00.
"Person"
means an individual, partnership, corporation, trust or other
entity, or a government or agency or
instrumentality thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"SEC"
means the United States Securities and Exchange Commission.
"Service
Agreement" means an agreement between Civitas and BT, in form
and
substance satisfactory to Civitas and BT,
providing for Civitas, for a period of
six months following the Closing Date, to
provide to BT substantially equivalent
services as are currently provided BT as a
subsidiary of Civitas, including
certain accounting, human resources,
information technology, "back office"
functions, internal audit and customer
compliance functions, at fees comparable
to those currently charged to BT by Civitas
but as may be amended by agreement
of the parties or as required by Regulatory
Authorities upon acceptance of
Civitas.
"Subsidiary" means any corporation, partnership, joint venture or
other
legal entity of which a Person (either
alone or through or together with any
other Subsidiary), owns, directly or
indirectly, 50% or more of the stock or
other equity interests the holders of which
are generally entitled to vote for
the election of the board of directors or
other governing body of such
corporation or other legal entity.
"Termination Date" means March 30, 2005, or if the Bank
Regulatory
Approvals have not been obtained by that
date, then June 30, 2005.
All
references herein to "Sections," "Schedules" and "Exhibits"
shall,
unless otherwise indicated, refer to the
sections, schedules and exhibits which
(through attachment, whether to this
Agreement, the Civitas Disclosure Letter or
incorporation by reference) are a part of
this Agreement.
ARTICLE II
TRANSFERS BY CIVITAS
Section
2.1 Transfer of BT Common Stock. On the Closing Date, Civitas
shall transfer and deliver to the
Acquirors, subject to the terms and conditions
set forth in this Agreement, free and clear
of all liens, encumbrances, claims,
pledges, or security interests, all of the
issued and outstanding shares of BT
Common Stock.
ARTICLE III
TRANSFERS BY ACQUIRORS
Section
3.1 Transfer of Civitas Shares. On the Closing Date, the
Acquirors
shall deliver to Civitas, subject to the
terms and conditions set forth in this
Agreement, a stock
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certificate or stock certificates
representing, in the aggregate, Two Million
shares of Civitas Common Stock (the
"Exchange Shares").
Section
3.2 Adjustments. In the event of any reclassification, stock
split
or stock dividend with respect to Civitas
Common Stock, any change of the
Civitas Common Stock into other securities
or any other dividend or distribution
with respect to the Civitas Common Stock,
or if a record date with respect to
any of the foregoing should occur, prior to
the Closing, appropriate and
proportionate adjustments, if necessary,
shall be made to the number of Exchange
Shares to be issued pursuant to this
Agreement, and all references to such terms
in this Agreement shall be deemed to be to
such terms as so adjusted.
ARTICLE IV
CLOSING
The
Closing shall occur at the offices of Civitas Counsel, Suite
1000
Commerce Plaza, 201 Commerce Street,
Nashville, Tennessee 37201 at 10:00 a.m.,
Nashville time, on the Closing Date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CIVITAS
Section
5.1 Corporate Organization. Civitas represents and warrants to
the
Acquirors that:
(a)
Civitas is a
corporation duly organized, validly existing and in
good standing under the laws of the State
of Tennessee and has the requisite
corporate power and authority to carry on
its business as now being conducted.
Civitas has no Subsidiaries other than
those listed in Exhibit 21 to its latest
Annual Report on Form 10-K filed with the
SEC. Civitas is duly qualified to do
business and is in good standing in each
jurisdiction where the character of its
properties owned or held under lease or the
nature of its activities makes such
qualification necessary, except where the
failure to be so qualified would not,
individually or in the aggregate, have a
Material Adverse Effect on Civitas.
(b)
BT is a
commercial bank duly organized, validly existing and in good
standing under the laws of the State of
Tennessee and has the requisite
corporate power and authority to carry on
its business as now being conducted.
BT has no Subsidiaries. BT does not own any
interest in any partnership or other
entity. There are no outstanding
contractual obligations of BT to acquire any
shares of capital stock or other ownership
interest of any corporation,
partnership or other entity. Except as made
in the ordinary course of its
banking business, BT does not have any
investment (either debt or equity), or
commitments to make such an investment, in
any corporation, joint venture,
general or limited partnership, business
enterprise or other person or entity.
BT is duly licensed or qualified to do
business and is in good standing in each
jurisdiction where it owns or leases
property, conducts business or where the
character of its properties owned or held
under lease or the nature of its
activities makes such licensure or
qualification necessary. The deposit accounts
of BT are insured by the Federal
Deposit
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Insurance Corporation to the fullest extent
permitted by law, and all premiums
and assessments required to be paid in
connection therewith have been paid when
due.
Section
5.2 Capital Structure.
(a)
BT has
authorized capital stock consisting of one million
(1,000,000) shares of BT common stock, of
which Thirty-Three Thousand Three
Hundred Thirty-Three and 33/100s
(33,333.33) shares are issued and outstanding.
BT has no other issued or authorized
securities. There are no shares of BT
Common Stock held in the treasury of BT.
The issued and outstanding shares of BT
Common Stock are validly issued, fully paid
and nonassessable. There are no
existing subscriptions, options, warrants,
calls, commitments, agreements or
rights of any kind obligating BT to issue
any shares of stock or options or
rights with respect thereto, and there are
no existing or outstanding securities
of any kind convertible into or
exchangeable for shares of BT Common Stock. No
former shareholder of BT or any corporation
heretofore merged with or into BT
has any claim or cause of action whatsoever
against BT arising out of or in any
way connected with any occurrence or state
of facts in existence prior to the
date hereof that would have a Material
Adverse Effect on BT. To Civitas'
Knowledge, no former shareholder of BT or
any corporation heretofore merged with
or into BT has any claim or cause of action
whatsoever against BT not barred by
the applicable statute of limitations
arising out of or in any way connected
with any occurrence or state of facts in
existence prior to the date hereof. To
Civitas' Knowledge, no former shareholder
of BT or any corporation heretofore
merged with or into BT shall come to have
any claim or cause of action
whatsoever against BT or any of the
Acquirors by virtue of, or in any way
connected with, the transactions
contemplated by this Agreement. All of the
issued and outstanding BT Common Stock has
been issued and sold in compliance
with all federal and state securities laws.
There are no preemptive rights in
respect of BT Common Stock.
(b)
Except as set
forth on the Civitas Disclosure Letter, Civitas owns
of record and beneficially all of the
issued and outstanding BT Common Stock and
has the right and power to transfer and
assign the BT Common Stock, free and
clear of all liens, encumbrances,
restrictions, claims, pledges or security
interests or charges or interests of any
kind, whether voluntarily incurred or
arising by operation of law or otherwise.
Civitas has the exclusive right, power
and authority to vote the BT Common Stock.
Civitas is the sole shareholder of
BT. Upon and effective with the Closing,
subject to the Acquirors' satisfaction
of the condition set forth in Section
9.3.3, the Acquirors will have good, valid
and marketable title to all of the issued
and outstanding capital stock of BT
free and clear of all liens, encumbrances,
restrictions, claims, pledges,
security interests, charges or interests of
any kind, whether voluntarily
incurred or arising by operation of law or
otherwise, with the exception of
liens or encumbrances that may have been
created or granted by the Acquirors.
(c)
Since December
31, 2003, BT has not declared, set aside, made or
paid to Civitas dividends or other
distributions on the outstanding shares of BT
Common Stock, and BT has no obligation to
declare, set aside, make or pay to
Civitas dividends or other distributions on
the outstanding shares of BT Common
Stock. There are no amounts owed to Civitas
by BT as a result of any previous
declaration of any dividend or other
distribution on any outstanding securities
of BT.
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Section
5.3 Authority; Non-Contravention.
(a)
Civitas has all
requisite corporate power and authority to enter
into this Agreement and to consummate the
transactions contemplated hereby.
Civitas' execution and delivery of this
Agreement and its consummation of the
transactions contemplated hereby have been
duly authorized by all necessary
corporate action. This Agreement has been
duly executed and delivered by Civitas
and, subject to the satisfaction of the
conditions applicable to Civitas as
forth herein, constitutes a valid and
binding obligation of Civitas, enforceable
in accordance with its terms.
(b)
The execution
and delivery of this Agreement by Civitas does not and
will not, and the consummation of the
transactions contemplated hereby and
compliance with the provisions hereof will
not conflict with, or result in any
violation of, or default (with or without
notice or lapse of time, or both)
under, or give rise to a right of
termination, cancellation or acceleration of
any obligation or to the loss of a benefit
under, or result in the creation of
any lien, security interest, charge or
encumbrance upon any of the properties or
assets of Civitas or any of its
Subsidiaries (including BT) under:
(1)
any provision of
the Charter or By-laws of either Civitas or
BT;
(2) any loan or
credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument,
permit, concession, franchise or license
applicable to Civitas or any of its
Subsidiaries, except as set forth on the
Civitas Disclosure Letter;
(3) any
judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Civitas, any of
its Subsidiaries, or any of their
respective properties or assets;
other than, in the case of clauses (2) or
(3), any such conflicts, violations,
defaults, rights, loss of benefits, liens,
security interests, charges or
encumbrances that, individually or in the
aggregate, would not have a Material
Adverse Effect on Civitas or a Material
Adverse Effect on BT.
(c)
No filing or
registration with, or authorization, consent or
approval of, any domestic (federal or
state), foreign or supranational court,
commission, governmental body, regulatory
agency, authority or tribunal (a
"Governmental Entity") is required by or
with respect to Civitas or any of its
Subsidiaries (including BT) in connection
with the execution and delivery of
this Agreement by Civitas or is necessary
for the consummation of the
transactions contemplated by this
Agreement, except:
(1) those
required by the Department of Financial Institutions of
the State of Tennessee, the United States
Federal Reserve Board and/or the
United States Federal Deposit Insurance
Corporation (each a "Bank Regulatory
Approval" and, collectively, the "Bank
Regulatory Approvals"); and
(2) in
connection, or in compliance, with the provisions of the
Securities Act, the Exchange Act and
applicable state securities or blue sky
laws (the Securities Act, Exchange Act and
such applicable state securities laws
being hereinafter referred to collectively
as "Securities Laws").
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Section
5.4 BT Financial Statements. Civitas has delivered to Acquirors
(or will deliver when available, with
respect to periods ended after the date of
this Agreement but prior to the Closing
Date) true, correct and complete copies
of:
(a)
All Call
Reports, including any amendments thereto, filed with any
Regulatory Authority by BT for the years
ended December 31, 2001, 2002, 2003,
and thereafter, together with any
correspondence with any federal or state
regulatory agency having jurisdiction over
BT (collectively, "Regulatory
Authorities") concerning any of the
aforesaid financial statements and Reports
(the "BT Regulatory Financial Statements").
To Civitas' Knowledge, such BT
Regulatory Financial Statements (i) were
(or will be) prepared from the records
of BT; (ii) were (or will be) prepared in
accordance with regulatory accounting
principles consistently applied; (iii)
present (or, when prepared, will present)
BT's financial condition and the results of
its operations, changes in
stockholders' equity and cash flows at the
relevant dates thereof and for the
periods covered thereby; and (iv) contain
or reflect (or, when prepared, will
contain and reflects) all necessary
adjustments and accruals for an accurate
presentation of BT's financial condition
and the results of BT's operations and
cash flows for the periods covered by such
financial statements.
(b)
BT's unaudited
balance sheets as of December 31, 2001, 2002, and
2003, and September 30, 2004, and unaudited
statements of income and changes in
stockholders' equity and statements of cash
flows for the years ended December
31, 2001, 2002, and 2003, and the period
ended September 30, 2004, and the
unaudited balance sheets, statements of
income, changes in stockholders' equity
and statements of cash flow for any quarter
or fiscal year ended thereafter
(collectively, the "BT Financial
Statements"). To Civitas' Knowledge, each of
the BT Financial Statements (including the
related notes) fairly presents the
results of operations of BT for the
respective periods covered thereby and the
financial condition of BT as of the
respective dates thereof, in each case in
accordance with generally accepted
accounting principles consistently applied
during the periods involved, except as may
be noted therein.
Section
5.5 Opinion of Financial Advisor. Civitas has received the
opinion
of Keefe, Bruyette & Woods, Inc. (the
"Civitas Financial Advisor") to the effect
that, as of the date hereof, the
consideration to be received by Civitas in
exchange for the BT Common Stock being
transferred to the Acquirors, pursuant to
the terms and conditions of this Agreement,
is fair to Civitas' shareholders
from a financial point of view.
Section
5.6 Corporate Documents. The copies of the Charter and By-laws
of
Civitas and BT, which have been delivered
to the Acquirors, are true, correct
and complete copies of each of such Charter
and By-laws as in effect on the date
hereof. The minute books of BT contain true
and correct records of all meetings
and other corporate actions held or taken
by the BT shareholders and Board of
Directors.
Section
5.7 Certain Agreements. Except as set forth on the Civitas
Disclosure Letter, BT is not a party to any
written, or to Civitas' Knowledge,
any oral, agreement or plan, including any
employment, consulting, or severance
agreement, any stock option plan, stock
appreciation rights plan, restricted
stock plan or stock purchase plan, any of
the benefits of which will be
increased, or the vesting of the benefits
of which will be accelerated, by the
occurrence of any of
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the transactions contemplated by this
Agreement or the value of any of the
benefits of which will be calculated on the
basis of any of the transactions
contemplated by this Agreement.
Section
5.8 Absence of Certain Changes or Events. To Civitas'
Knowledge,
since December 31, 2003, there has not
been:
(a) any declaration or payment of
dividends on any capital stock of BT or any
distribution with respect to, or in redemption of, any of the
shares of
capital
stock of BT;
(b) any sale or transfer of any
assets or properties of BT except in the
ordinary
course of business consistent with past practice;
(c) any damage, destruction or
loss (whether or not covered by insurance) that
could
reasonably be expected to have a Material Adverse Effect on BT;
(d) any Material Adverse Change in
the condition (financial or otherwise) of
properties, assets, liabilities, business or prospects of BT except
as
reflected
in the BT Regulatory Financial Statements and BT Financial
Statements;
(e) any transaction other than in
the ordinary course of business of BT
consistent
with past practice;
(f) any lease of personal or real
property to or from any person, firm or
entity
with respect to which BT is a party;
(g) any amendment of the Charter
or By-laws of BT;
(h) the granting or filing of any
lien, encumbrance or security interest
against
any of the shares of capital stock of BT or any of its
properties
or assets,
real, personal or mixed, tangible or intangible;
(i) any payment, loan or advance
of any amount to, or sale, transfer or lease
of any
properties or assets (real, personal or mixed, tangible or
intangible) to, or execution of any agreement with, officers or
directors
of
Civitas, except as approved by the BT Board of Directors;
(j) any increase in the
compensation payable to or to become payable by BT to
any
officer, employee or agent of BT (including, without limitation,
any
increase
in the discretionary matching under any 401(k) plan), except
for
normal
compensation adjustments to salaries or wages made in the
ordinary
course of
business consistent with past practice;
(k) any payment, other than in the
ordinary course of business of BT
consistent
with past practice, under any insurance, pension or other
benefit
plan, program or arrangement made to, for or with any officer,
employee
or agent of Civitas or BT;
(l) any change in the method of
accounting or accounting practice by BT,
except as
required by generally accepted accounting principles; or
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(m) any agreement, whether in
writing or otherwise, to take any action
described
in this Section 5.8.
Section
5.9 Compliance with Laws. To Civitas' Knowledge, other than as
listed on the Civitas Disclosure Letter,,
BT is not in violation of any
applicable federal, state, local or foreign
statute, law, regulation, ordinance,
rule, judgment, order or decree applicable
to it or employees conducting its
business. Other than as referenced in
examination reports from Regulatory
Authorities and as listed on the Civitas
Disclosure Letter, Civitas has not
received any notification or communication
from any agency or department of
federal, state or local government or any
Regulatory Authority or the staff
thereof asserting that BT is not in
compliance with any statutes, regulations or
ordinances, (ii) threatening to revoke any
permit, license, franchise,
certificate or authority or other
governmental authorization, or (iii) requiring
BT to enter into or consent to the issuance
of a cease and desist order, formal
agreement, directive, or memorandum of
understanding, or to adopt any board
resolution or similar undertaking, which
restricts materially the conduct of its
business, or in any manner relates to its
capital adequacy, its credit or
reserve policies, its management or the
payment of dividend.
Section
5.10 Contracts. To Civitas' Knowledge, all contracts to which
BT
or any of its assets, business or
operations, is a party to, or is bound or
affected by, or receives benefits under
either (i) have been approved by the
Board of Directors of BT, or (ii) entered
into in the ordinary course of
business of BT.
Section
5.11 Assets. To Civitas' Knowledge, BT has good and marketable
title to, leasehold interest in, or right
to use all properties and assets of
any nature used in its business, free and
clear of all liens, charges, claims
and encumbrances of any nature whatsoever,
except any property taxes and
assessments not delinquent and other
encumbrances which do not adversely affect
the value or utility of the asset. To
Civitas' Knowledge, all leased assets of
BT are held under valid leases enforceable
in accordance with their respective
terms and each such lease is in full force
and effect. Civitas has not received
notice from any insurance carrier that (i)
any insurance covering BT or its
assets would be canceled or that coverage
thereunder will be reduced or
eliminated, or (ii) premium costs with
respect to such policies of insurance
will be substantially increased. There are
presently no claims pending under any
such policies of insurance and no notices
have been given by Civitas under such
policies.
Section
5.12 No Brokers. Neither Civitas or BT is a party to or bound
by
any contract, arrangement or understanding
with any person or firm which may
result in the obligation of BT to pay any
finder's fees, brokerage or agent's
commissions or other like payments in
connection with the negotiations leading
to this Agreement or the consummation of
the transactions contemplated hereby,
and there will be no claim for payment of
any finder's fees, brokerage or
agent's commissions or other like payments
in connection with the negotiations
leading to this Agreement or the
consummation of the transactions contemplated
hereby.
Section
5.13 Absence of Undisclosed Liabilities. To Civitas' Knowledge,
except as and to the extent reflected or
reserved against in the most recent
financial statements of BT furnished to the
Acquirors, BT has not incurred any
liabilities of any kind whatsoever, whether
accrued, absolute, contingent,
determined, determinable or otherwise other
than: (a) liabilities incurred in
the ordinary course of business in
accordance with past practice since the date
of such financial
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statements; (b) liabilities that have been
repaid, discharged or otherwise
extinguished; or (c) liabilities under or
contemplated by this Agreement.
Section
5.14 Tax Matters. (a) Except as set forth on the Civitas
Disclosure Letter, all tax returns required
to be filed by or on behalf of BT
have been timely filed or requests for
extensions have been timely filed,
granted and have not expired for periods
ended on or before December 31, 2003,
and all tax returns filed are complete and
accurate. All taxes shown on filed
tax returns have been paid. There is no
audit examination, deficiency, or refund
litigation with respect to any taxes. All
taxes and other liabilities due with
respect to completed and settled
examinations or concluded litigation have been
paid. There are no liens with respect to
taxes upon any of the assets of BT.
(b) Civitas
shall timely file all tax returns of BT required to be
filed for the fiscal year ended December
31, 2004, and all tax returns which are
required to be filed for any other periods
preceding the Closing Date. All such
tax returns filed shall be complete and
accurate. Civitas shall pay all taxes
and other liabilities due by BT with
respect to all such periods preceding the
Closing Date.
(c) BT is in
compliance with, and its records contain all
information and documents (including
properly completed IRS Forms W-9) necessary
to comply with, all applicable information
reporting and tax withholding
requirements under federal, state and local
tax laws, and such records identify
with specificity all accounts subject to
backup withholding under Section 3406
of the Code.
(d) Except as
set forth on the Civitas Disclosure Letter, BT is
not a party to any tax allocation or
sharing agreement and BT has not been a
member of an affiliated group filing a
consolidated federal income tax return
(other than a group the common parent of
which was Civitas) and does not have
any liability for taxes of any Person
(other than BT) under Treasury Regulation
Section 1.1502-6 (or any similar provision
of state, local or foreign law) as a
transferee or successor or by contract or
otherwise.
Section
5.15 Legal Proceedings. There is no litigation instituted or,
to
Civitas' Knowledge, threatened or pending
against BT.
Section
5.16 Representations Complete. None of the representations or
warranties made by Civitas herein contains,
to Civitas' Knowledge, any untrue
statement of a material fact or omits, to
Civitas' Knowledge, to state any
material fact necessary to make the
statements therein, in light of the
circumstances under which made, not
misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ACQUIRORS
Each
Acquiror, individually represents and warrants to Civitas that:
Section
6.1 Investor Status of Acquirors.
10
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Section 6.1.1 Such Acquiror acknowledges that he/she knows and
understands the following: (1) that BT is a
wholly-owned subsidiary of Civitas;
and (2) that he/she has had and continues
to have complete access to and
familiarity with the business operations
and financial and other matters
relative to BT.
Section 6.1.2 Such Acquiror is an "accredited investor" as that
term
is defined in Rule 501 of Regulation D, 15
C.F.R. ss.ss. 230.501 et seq.,
promulgated under the Securities Act, and
has such Knowledge and experience in
financial and business matters so as to be
capable of evaluating the merits and
risks of an investment in BT.
Section 6.1.3 Such Acquiror is acquiring BT Common Stock for
his/her
own account for investment and no
