EXHIBIT 10A
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of September 11,
2000 (this "AGREEMENT"), is made and entered into by and among
▇▇▇▇▇ & ▇▇▇▇▇, INC., a Florida corporation ("BUYER"); ▇▇▇▇▇▇▇
CORPORATION, a New York corporation ("SELLER"); and each of the
shareholders of Seller listed on the signature pages hereto (each
a "SHAREHOLDER" and collectively the "SHAREHOLDERS").
BACKGROUND
Seller has its principal executive offices in Rochester, New
York and is primarily engaged in the insurance agency business in
New York and throughout the United States (the "BUSINESS"), and
wishes to sell to Buyer substantially all of the Business' assets
(other than cash, accounts receivable and other excluded assets
described herein). Buyer desires to acquire such assets upon the
terms and conditions expressed in this Agreement. The
Shareholders own all of the outstanding capital stock of Seller
and are entering into this Agreement to provide certain non-
competition, indemnification and other assurances to Buyer as a
material inducement for Buyer to enter into this transaction.
THEREFORE, in consideration of the respective
representations, warranties, covenants and agreements set forth
herein, the parties agree as follows:
Article 1. The Acquisition
SECTION 1.1. COVENANTS OF SALE AND PURCHASE. At the Closing
(as defined in SECTION 2.1), and upon and subject to the terms
and conditions of this Agreement, the parties mutually covenant
and agree as follows:
(a) Seller shall sell, convey and assign to Buyer all right,
title and interest of Seller in and to the Acquired Assets (as
defined in SECTION 1.2) free and clear of all liens, pledges,
security interests, charges, restrictions or encumbrances of any
nature whatsoever, except for those described in SCHEDULE 1.1(B)
annexed hereto (the "PERMITTED LIENS AND ENCUMBRANCES"); and
(b) Buyer shall purchase and accept the Acquired Assets from
Seller and assume the Assigned Contracts (as defined in SECTION
1.2(C)) in exchange for the consideration described in SECTION
1.5.
SECTION 1.2. THE ACQUIRED ASSETS. In this Agreement, the
phrase "ACQUIRED ASSETS" means, subject to SECTION 1.4, all of
the assets of Seller described below:
(a) PURCHASED BOOK OF BUSINESS. All of the Business,
including, but not limited to, the life, health, bond, and
property and casualty insurance business (both personal
and commercial lines) and renewals and expirations thereof, together
with all written or otherwise recorded documentation, data or
information relating to the Business, whether compiled by Seller
or by other agents or employees of Seller, including, but not
limited to: (i) lists of insurance companies and records
pertaining thereto; (ii) customer lists, prospect lists, policy
forms, and/or rating information, expiration dates, information
on risk characteristics, information concerning insurance markets
for large or unusual risks, and all other types of written or
otherwise recorded information customarily used by Seller or
available to Seller, including all other records of and
pertaining to the accounts and customers of Seller, past and
present, including, but not limited to, the active insurance
customers of Seller (collectively, the "PURCHASED BOOK OF
BUSINESS"); and (iii) each of the agreements listed in SCHEDULES
1.2(C)(I) AND (II) annexed hereto.
(b) INTANGIBLES. All intangible personal property
used in connection with the Business or pertaining to the
Acquired Assets, including without limitation the following:
(i) all of Seller's Business records necessary to enable Buyer
to renew the Purchased Book of Business;
(ii) the goodwill of the Business, including the corporate name
and the name "▇▇▇▇▇▇▇ INSURANCE" and all derivatives thereof, and
any other fictitious names and trade names that are currently in
use by Seller (except the corporate or trade name of "▇▇▇▇▇▇▇
Corporation," and "Vision Financial Corporation," a Delaware
corporation and partly-owned subsidiary of Seller), and all
telephone listings, post office boxes, mailing addresses, and
advertising signs and materials; and
(iii) all Intellectual Property (as defined below) related to
the Business.
As used in this Agreement the term "INTELLECTUAL PROPERTY" means
(A) all inventions (whether patentable or unpatentable and
whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures,
together with all reissuances, continuations, continuations-in-
part, revisions, extensions, and reexaminations thereof, (B) all
trademarks, service marks, trade dress, logos, together with all
translations, adaptations, derivations, and combinations thereof
and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection
therewith, (C) all copyrightable works, all copyrights, and all
applications, registrations, and renewals in connection
therewith, (D) all mask works and all applications,
registrations, and renewals in connection therewith, (E) all
trade secrets and confidential business information (including
ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals), (F) all computer
software (including data and related documentation), (G) all
other proprietary rights, and (H) all copies and tangible
embodiments thereof (in whatever form or medium).
(c) ASSIGNED CONTRACTS. All of Seller's (i)
acquisition agreements listed on SCHEDULE 1.2(C)(I) annexed
hereto (collectively, the "ASSUMED ACQUISITION AGREEMENTS"), (ii)
covenants not-to-compete listed on SCHEDULE 1.2(C)(II) annexed
hereto, which Schedule lists each covenant not-to-compete and the
amount of the remaining
obligation subsequent to December 31, 2000 attributable to each such
covenant not-to-compete (the "ASSUMED OPERATING EXPENSES"), (iii)
non-solicitation agreements and contracts and agreements described in
SECTIONS 3.8(C)(I), (II), (IV) and (XII) and listed on SCHEDULE 3.8(C),
and (iv) contracts and agreements that would be required to be listed on
SCHEDULE 3.8(C) pursuant to SECTIONS 3.8(C)(I), (II), (IV) (but
only with respect to capitalized lease obligations) and (XII) but
for the amount of annual payments provided thereunder, which are
not listed on SCHEDULE 3.8(C), PROVIDED the amount remaining due
under the contract or agreement is less than $25,000 which Seller
has attempted in good faith to list on SCHEDULE 1.2(C)(IV)
annexed hereto (all of the contracts, agreements and instruments
referred to in (I), (II), (III) and (IV) collectively, the
"ASSIGNED CONTRACTS"); and
(d) MISCELLANEOUS ITEMS. All other assets of Seller
relating or pertaining to the Purchased Book of Business,
including (i) computer disks, servers, software, databases
(whether in the form of computer tapes or otherwise), related
object and source codes, and associated manuals, and any other
records or media of storage or programs for retrieval of
information pertaining to the Purchased Book of Business, (ii)
all supplies and materials, including promotional and advertising
materials, brochures, plans, supplier lists, manuals, handbooks,
and related written data and information, (iii) customer and
other deposits and prepayments, and (iv) transferable approvals,
permits, licenses, orders, registrations, certificates, variances
and similar rights obtained from governments and governmental
agencies to own and operate the Business and Acquired Assets.
(e) TANGIBLE PROPERTY. All items of furniture,
fixtures, computers, office equipment and other tangible property
used in the Business, including but not limited to Seller's fixed
asset list set forth in SCHEDULE 1.2(E) annexed hereto. To the
extent that any of such items are subject to a lease identified
in SCHEDULE 3.8(C), Buyer shall assume such lease and acquire all
of Seller's right, if any, to acquire such property upon
termination of such lease.
(f) REAL PROPERTY. Each parcel of real property
described in SCHEDULE 1.2(F) annexed hereto together with all
improvements (the "IMPROVEMENTS") located thereupon (each a
"PURCHASED SITE" and collectively, the "REAL PROPERTY"). Seller
shall give and Buyer shall accept such title as any title insurer
licensed to do business in the State of New York and reasonably
acceptable to Buyer shall be willing to approve and insure in
accordance with such title company's standard form of title
policy at standard rates.
(g) All of those leases, subleases, licenses and other
agreements which grant third parties a right to use or occupy all
or a portion of the Real Property (the "TENANT AGREEMENTS")
listed in SCHEDULE 1.2(G) annexed hereto.
(h) Each of the following items relating to the Real
Property:
(i) Any zoning permits and approvals, variances,
building permits and such other federal, state or local
governmental approvals relating to the Real Property which have
been obtained or for which Seller has made application;
(ii) Any construction, engineering and
architectural drawings and related plans and surveys, including
design drawings and specifications pertaining to the construction
of the Improvements;
(iii) Title reports, commitments for title
insurance, ownership and encumbrance reports, title opinion
letters, copies of instruments in the chain of title or any other
information which may have been produced regarding title;
(iv) Environmental assessments including Phase I
and Phase II reports and any environmental reports involving
contemporaneous or subsequent intrusive testing and any other
information which may have been produced regarding the
environmental condition of each Purchased Site or its neighboring
real property; and
(v) Any other written information regarding the
due diligence investigation made by Seller or its agents,
independent contractors or employees regarding the Real Property
that is in Seller's control or possession.
SECTION 1.3. ASSUMPTION OF LIABILITIES. On the Closing Date,
Purchaser shall assume all of the obligations and liabilities
first arising or occurring under the Assigned Contracts after the
Closing Date. Except for these obligations, Buyer shall not
assume or be deemed to have assumed any liability or obligation
of Seller whatsoever.
SECTION 1.4. EXCLUSIONS AND EXCEPTIONS. Seller does not agree
to sell or assign, and Buyer does not agree to purchase or
assume, any assets, liabilities and obligations not described in
SECTION 1.2 or SECTION 1.3 of this Agreement. Without limiting
the foregoing and notwithstanding anything to the contrary set
forth herein, Buyer shall not purchase or assume any of the
following:
(a) Seller's real property located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ (the "ROCHESTER SITE") or real property located at ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇;
(b) Seller's cash in hand or in banks and other readily liquid
working capital as of the close of business on the Closing Date,
including Seller's accounts and other receivables, money market
certificates, stocks, bonds, and Seller's automobiles and other
vehicles;
(c) Seller's claims, refunds, causes of action, choses in
action, rights of recovery, rights of set off, and rights or
recoupment (including any such right relating to the payment of
Taxes (as defined in SECTION 3.12)), except those relating to the
Acquired Assets or the Business arising after the Closing;
(d) (i) any contract, lease or other obligation that relates to
the Acquired Assets or the Business and is not otherwise
specifically assigned to Buyer under this Agreement (including,
without limitation, any agreement (except capitalized lease
obligations) described in SECTION 3.8(C)(IV)), or (ii) any
contract, lease or other obligation whatsoever not relating to
the Acquired Assets or the Business;
(e) (i) Seller's corporate charter, qualifications to conduct
business as a foreign corporation, arrangements with registered
agents relating to foreign qualifications, taxpayer and other
identification numbers, seals, minute books, stock transfer
books, blank stock certificates, and other documents relating to
the organization, maintenance, and existence of Seller as a
corporation or (ii) any of the rights of Seller under this
Agreement (or under any other agreement between Seller on the one
hand and Buyer on the other hand entered into on or after the
date of this Agreement);
(f) any duty or liability of any type whatsoever with respect to
any employee or to any pension or profit sharing plan or other
employee benefit including, without limitation, those described
in SECTION 3.19 hereof (except with respect to those agreements
listed in SCHEDULE 1.2(C)(II)); or
(g) (i) any liability of Seller for income, transfer, sales,
use, and other Taxes, including any such Taxes (as defined in
SECTION 3.12(F) hereof) arising in connection with the
consummation of the transactions contemplated hereby (including
any income Taxes arising because Seller is transferring the
Acquired Assets), (ii) any liability of Seller for the unpaid
Taxes of any person or entity under United States Treasury
Regulation 1.1502-6 (or any similar provision of state, local,
or foreign law), as a transferee or successor, by contract, or
otherwise, (iii) any obligation of Seller to indemnify any person
or entity (including any Shareholder) by reason of the fact that
such person or entity was a director, officer, employee, or agent
of Seller or was serving at the request of any such entity as a
partner, trustee, director, officer, employee, or agent of
another entity (whether such indemnification is for judgments,
damages, penalties, fines, costs, amounts paid in settlement,
losses, expenses, or otherwise and whether such indemnification
is pursuant to any statute, charter document, bylaw, agreement,
or otherwise), (iv) any liability of Seller for costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby (except as provided in SECTIONS
1.5(C)(III), 1.5(C)(IV) AND 8.6), or (v) any liability or
obligation of Seller under this Agreement (or under any related
agreement between Seller on the one hand and Buyer on the other
hand entered into on or after the date of this Agreement).
Section 1.5. Purchase Price.
(a) The purchase price for the Acquired Assets (the "TOTAL
PURCHASE PRICE") shall be equal to the sum of:
(i) the product of 1.55 MULTIPLIED BY the Revenue (as defined
below) derived from the operation of the Business during the
twelve-month period beginning January 1, 2000 and ending on
December 31, 2000, including all Revenue generated from the
operation of the Recent Acquisitions (as defined below) through
December 31, 2000; plus
(ii) the product of 1.50 MULTIPLIED BY the Revenue derived
from the operation of the New Acquisitions through December 31, 2000
(such Revenue, collectively with the Revenue described in SECTION
1.5(A)(I), is hereinafter described as "FY2000 REVENUE", and the
sum of the products described in SECTION 1.5(A)(I) and this
SECTION 1.5(A)(II) is hereinafter referred to as the "INITIAL
GROSS PURCHASE PRICE"); PLUS
(iii) the product of 1.55 MULTIPLIED BY the Revenue derived
from the operation of the Recent Acquisitions during the period
beginning on January 1, 2001 and ending on the respective twelve-
month anniversary dates for such Recent Acquisitions; PLUS
(iv) the product of 1.50 MULTIPLIED BY the Revenue derived
from the operation of the New Acquisitions during the period beginning
on January 1, 2001 and ending on the respective twelve-month
anniversary dates for such New Acquisitions (collectively with
SECTION 1.5(A)(III), the "ADDITIONAL PURCHASE PRICE"); MINUS
(v) amounts representing remaining payment obligations
pursuant to the Assumed Acquisition Agreements (as set forth in SCHEDULE
1.2(C)(I)) and Assumed Operating Expenses (as set forth in
SCHEDULE 1.2(C)(II)), whether owed to Seller, third parties or
otherwise, discounted at a rate of 8.5% per annum; and PLUS OR
MINUS (as the case may be)
(vi) any Adjustments.
As used in this Agreement the term "RECENT ACQUISITIONS" means
the acquisitions of certain insurance agencies by Seller located
in Jamestown, New York; West Richmond, Virginia; and Denver,
Colorado (two (2) offices), all as more particularly described in
SCHEDULE 1.5(A), and the term "NEW ACQUISITIONS" means all
acquisitions of insurance agencies listed in SCHEDULE 1.5(A)
(other than the Recent Acquisitions) and any additional
acquisitions approved by Buyer pursuant to the terms of this
Agreement.
As used in this Agreement, the term "REVENUE" means all
commissions and fees relating to the sale and brokerage of
insurance products and services. Revenue generated from any one
account shall not be included more than once in any twelve-month
period. Direct ▇▇▇▇ Revenue is recognized when received from the
insurance carrier and agency ▇▇▇▇ Revenue is recognized on the
later of the effective date of the policy installment or the date
the installment is billed to the customer.
(b) Simultaneously with the execution of this Agreement, Buyer
shall deliver to Seller a check for $1,000,000 (the "ESCROW
DEPOSIT") made payable to made payable to FleetBoston Financial
Corporation d/b/a Fleet Bank, as escrow agent (the "ESCROW
AGENT"), to be held in escrow and disbursed pursuant to an escrow
agreement substantially in the form of EXHIBIT A or such other
form as is reasonably agreed to by the parties and the Escrow
Agent (the "ESCROW AGREEMENT"). Buyer shall be entitled to all
interest earned on the Escrow Deposit upon the release of the
Escrow Deposit by the Escrow Agent. The Escrow Deposit shall not
constitute liquidated damages or in any way limit Seller's rights
against Buyer, but such amount shall be available to satisfy any
damages claims.
(c) Subject to SECTION 1.5(D), the Total Purchase Price shall be
paid to Seller in cash by wire transfer or delivery of other
immediately available funds to an account designated in writing
by Seller no later than two (2) business days prior to the date
each such payment is to be made as follows:
(i) at least ten (10) business days prior to the Closing, Seller
shall deliver to Buyer a good faith written determination of the
FY2000 Revenue of the Business, an amount attributable to
obligations assumed by Buyer pursuant to the Assumed Acquisition
Agreements, and the Assumed Operating Expenses amount, based on
Seller's most recent interim financial statements, together with
reasonably detailed supporting documentation showing that such
amounts were actually earned or incurred in such period, which
determination shall be subject to Buyer's reasonable review and
reasonable approval. Seller and Buyer shall negotiate in good
faith to resolve, prior to the Closing, any disagreement with
respect to the determination of FY2000 Revenue, the amount
attributable to the Assumed Acquisition Agreements, or the
Assumed Operating Expenses amount based on Seller's most recent
interim financial statements, SCHEDULE 1.2(C)(I), and SCHEDULE
1.2(C)(II), respectively. On the Closing Date, Buyer shall pay
an amount equal to ninety percent (90%) of the sum of (A) the
estimated Initial Gross Purchase Price MINUS (B) the amount
attributable to the Assumed Acquisition Agreements, MINUS (C) the
Assumed Operating Expenses amount, and PLUS OR MINUS (D) any
Adjustments (as defined below) through December 31, 2000, all as
calculated in accordance with Seller's most recent interim
financial statements (the "DOWN PAYMENT"). A portion of the Down
Payment shall be funded by the Escrow Agent's release on the
Closing Date of the Escrow Deposit to Seller (excluding any
interest earned on the Escrow Deposit, which shall be released
simultaneously to Buyer);
(ii) on or before April 1, 2001, Seller shall deliver to Buyer
for Buyer's reasonable review and reasonable approval Seller's
certified financial statements for fiscal year 2000 (the "FY2000
FINANCIAL STATEMENTS"), together with Seller's written
determination of the FY2000 Revenue (the "SELLER FY2000 REVENUE
DETERMINATION") based on the FY2000 Financial Statements, which
determination shall set forth in reasonable detail the basis for
such determination. On or before April 23, 2001, Buyer shall
notify Seller in writing (the "BUYER FY2000 REVENUE
DETERMINATION") of Buyer's determination of FY2000 Revenue based
on the FY2000 Financial Statements. Buyer's determination of
FY2000 Revenue shall set forth in reasonable detail the basis for
such determination and shall be made in accordance with this
Agreement and generally acceptable accounting principles applied
on a consistent basis. Buyer shall make available to Seller all
workpapers and other books and records utilized in preparing
Buyer FY2000 Revenue Determination. Seller shall notify Buyer in
writing ("SELLER DISPUTE NOTICE") on or before April 27, 2001, if
Seller disagrees with Buyer FY2000 Revenue Determination, which
notice shall set forth in reasonable detail the basis for such
dispute and the dollar amounts involved. If no Seller Dispute
Notice is received by Buyer on or before April 27, 2001, then
Buyer FY2000 Revenue Determination shall be final and binding
upon the parties. Seller and Buyer shall negotiate in good faith
to resolve any disagreement with respect to any portion of the
determination of FY2000 Revenue based on the FY2000 Financial
Statements;
(iii) On May 1, 2001, Buyer shall pay Seller the sum of (A)
the Initial Gross Purchase Price based on the FY2000 Financial
Statements (except for any amounts disputed by the parties) MINUS
(B) the Down Payment, PLUS OR MINUS (as the case may be) (C) any
Adjustments not otherwise reflected in the Down Payment, PLUS (D)
interest from the Closing Date on the sum of clauses (A), (B) and
(C), at the same rate of interest earned on the Escrow Deposit.
With respect to any amounts of the Initial Gross Purchase Price
remaining in
dispute, the parties shall select a mutually
acceptable accounting firm with no material relationship with
either party (the "INDEPENDENT ACCOUNTING FIRM") and submit their
dispute to the Independent Accounting Firm. The Independent
Accounting Firm shall determine the items in dispute in
accordance with this Agreement, and its determination shall be
conclusive and binding for all purposes of this Agreement. The
fees of the Independent Accounting Firm shall be borne by the
party who does not substantially prevail in the proceeding, as
determined by the Independent Accounting Firm. Within five (5)
business days after the Independent Accounting Firm's
determination, payment made to Seller pursuant to this SECTION
1.5(C)(III) shall be adjusted and any additional amounts due to
Seller shall be promptly paid by Buyer; and
(iv) on or before February 1, 2002, Buyer shall deliver to Seller
for Seller's reasonable review and reasonable approval most
recent interim financial statements for Buyer for fiscal year
2001 (the "FY2001 FINANCIAL STATEMENTS"), together with Buyer's
written determination of the Additional Purchase Price (the
"ADDITIONAL PURCHASE PRICE DETERMINATION") based on the FY2001
Financial Statements, which determination shall set forth in
reasonable detail the basis for such determination. Buyer shall
make available to Seller all workpapers and other books and
records utilized in preparing the Additional Purchase Price
Determination. Seller shall notify Buyer in writing ("SELLER
DISPUTE NOTICE") on or before February 20, 2001, if Seller
disagrees with the Additional Purchase Price Determination, which
notice shall set forth in reasonable detail the basis for such
dispute and the dollar amounts involved. If no Seller Dispute
Notice is received by Buyer on or before February 20, 2002, then
the Additional Purchase Price Determination shall be final and
binding upon the parties. Seller and Buyer shall negotiate in
good faith to resolve any disagreement with respect to any
portion of the determination of the Additional Purchase Price
based on the FY2001 Financial Statements. On February 25, 2002,
Buyer shall pay Seller the Additional Purchase Price (except for
any amounts disputed by the parties). No interest shall accrue
or be due on any portion of the Additional Purchase Price. With
respect to any amounts of the Additional Purchase Price remaining
in dispute, the parties shall submit their dispute to the
Independent Accounting Firm. The Independent Accounting Firm
shall determine the items in dispute in accordance with this
Agreement, and its determination shall be conclusive and binding
for all purposes of this Agreement. The fees of the Independent
Accounting Firm shall be borne by the party who does not
substantially prevail in the proceeding, as determined by the
Independent Accounting Firm. Within five (5) business days after
the Independent Accounting Firm's determination, payment made to
Seller pursuant to this SECTION 1.5(C)(IV) shall be adjusted and
any additional amounts due to Seller shall be promptly paid by
Buyer.
As used in this Agreement the term "ADJUSTMENTS" means any
increase or decrease in the Total Purchase Price including,
without limitation, any of the following increases: (a) fifty
percent (50%) of the aggregate severance payments (MINUS fifty
percent (50%) of any consequential tax savings to Seller) paid to
any of Seller's corporate department employees, at each such
employee's then-current rate (as set forth for each corporate
department employee in SCHEDULE 1.5(C)(I)) terminated by Seller
and not designated by the Closing Date to be hired by Buyer (up
to a maximum of four (4) weeks' aggregate severance pay per
employee at each employee's then-current rate); (b) one hundred
percent (100%) of the aggregate severance payments (MINUS fifty
percent (50%) of any consequential tax savings to Seller) for any
of Seller's non-corporate department employees (I.E., those
employees not listed as corporate
department employees in SCHEDULE 1.5(C)(I)) terminated by Seller and
not designated by the Closing Date to be hired by Buyer (up to a maximum
of four (4) weeks' aggregate severance pay per employee at each
employee's then-current rate); (c) one hundred percent (100%) of
any other reasonable transition cost (less fifty percent (50%) of
any consequential tax savings to Seller) incurred and paid by
Seller at the specific written request of Buyer; and (d) all
deposits and prepaid rent and other prepaid items (other than
taxes and licenses) made under or pursuant to any of the Acquired
Assets. Notwithstanding the foregoing, the term "ADJUSTMENTS"
shall not include the cost of any severance payments payable in
conjunction with terminations of the individuals listed in
SCHEDULE 1.5(C)(II).
(d) The Additional Purchase Price described in SECTION 1.5(C)
shall be subject to reduction by Buyer to offset any obligations
of Seller and the Shareholders under the indemnification
provisions contained in ARTICLE 6 hereof. Satisfaction of any
indemnity obligations from the Additional Purchase Price shall
not operate to waive the indemnification obligations of Seller
and the Shareholders contained in ARTICLE 6 for damages incurred
by Buyer in excess of such amounts.
(e) ALLOCATION OF PURCHASE PRICE. For federal and state income
tax purposes, the parties agree to allocate the aggregate of the
Total Purchase Price (as adjusted for imputed interest and
contingent payments) among the Acquired Assets as follows: (i)
$4,000,000 shall be allocated to the tangible property listed on
SCHEDULE 1.2(E); (ii) $2,800,000 shall be allocated to the
covenants of the Shareholders as set forth in the Non-Competition
Agreements referenced in SECTION 5.2 hereof, (iii) $260,000 shall
be allocated to the Real Property, and (iv) the remainder of the
Purchase Price shall be allocated to the Purchased Book of
Business (the "ALLOCATION"). Each of Buyer and Seller shall
file, in accordance with the Internal Revenue Code of 1986, as
amended (the "CODE"), an Asset Acquisition Statement on Form 8594
with its federal income tax return for the tax year in which the
Closing Date occurs, and shall contemporaneously provide the
other party with a copy of the Form 8594 being filed. The Form
8594 shall be consistent with the Allocation. Each of Buyer and
Seller also shall file any additional Forms 8594 from time to
time as are required to reflect any adjustments to the Total
Purchase Price, and again shall contemporaneously provide the
other party with a copy of the additional Form 8594 being filed.
The final version of each additional Form 8594 as agreed to by
Buyer and Seller shall be timely filed by each of Buyer and
Seller. All indemnification payments made pursuant to ARTICLE 6
hereof shall be treated as adjustments to the Total Purchase
Price.
(f) PRORATIONS. All normal and customarily proratable items
relating to the Real Property, including, without limitation,
real property taxes, personal property taxes, utility bills,
water charges, sewer rents, and fuel charges shall be prorated as
of the Closing, Seller being charged and credited for all of the
same up to such date and Buyer being charged and credited for all
of the same on and after such date.
SECTION 1.6. COMMISSIONS COLLECTED. All commissions on
installments of agency ▇▇▇▇ policies with an effective date prior
to January 1, 2001 (the "COMMISSION EFFECTIVE DATE") and actually
billed prior to such date shall be the property of Seller and
those billed or effective on or after the Commission Effective
Date shall be the property of Buyer, regardless of when actually
received. All commissions on direct ▇▇▇▇ policies actually
received by Seller from insurance carriers before the Commission
Effective Date (provided the Commission Effective Date for such
policies is prior to the Closing Date of this Agreement) shall be
the property of Seller and those actually received from insurance
carriers on or after the Commission Effective Date shall be the
property of Buyer, regardless of when billed by the insurance
carrier. Buyer shall be entitled to all contingent commissions
and/or override commissions received on or after the Commission
Effective Date, regardless of when earned. All additional or
return commissions as a result of audits conducted before the
Closing and actually received before the Closing from insurance
carriers shall be the property or the responsibility of Seller,
whether credit or debit, and regardless of effective date, and
those actually received after the Closing from insurance carriers
shall be the property or responsibility of Buyer, whether credit
or debit, and regardless of effective date.
ARTICLE 2. CLOSING, ITEMS TO BE DELIVERED, FURTHER ASSURANCES,
AND EFFECTIVE DATE
SECTION 2.1. CLOSING. The consummation of the purchase and
sale of the Acquired Assets and the assumption of the obligations
and liabilities provided for in SECTION 1.3 as contemplated under
this Agreement (the "CLOSING") shall take place at 9 a.m., local
time, on January 3, 2001 or, if later, on the second business day
following the satisfaction or waiver of all conditions to the
obligations of the parties to consummate the transactions
contemplated hereby (other than condition with respect to actions
the respective parties shall take at the Closing itself) (the
"CLOSING DATE"), at the offices of Holland & Knight LLP located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
unless another date or place is agreed to in writing by the
parties hereto.
SECTION 2.2. CONVEYANCE AND DELIVERY BY SELLER. At the Closing,
(a) Seller shall surrender and deliver possession of the
Acquired Assets to Buyer and take such steps as may be required
to put Buyer in actual possession and operating control of the
Acquired Assets, and in addition shall deliver to Buyer such
bills of sale and assignments and other good and sufficient
instruments and documents of conveyance, in form reasonably
satisfactory to Buyer, as shall be necessary and effective to
transfer and assign to, and vest in, Buyer all of Seller's right,
title, and interest in and to the Acquired Assets free and clear
of any lien, charge, pledge, security interest, restriction or
encumbrance of any kind except for the Permitted Liens and as
otherwise indicated in this Agreement.
(b) Seller shall execute and deliver to Buyer for each Purchased
Site either (i) a statutory form of bargain and sale deed with
covenants against grantor's acts, containing the covenant
required by Section 13 of the New York Lien Law, or an assignment
and assumption of lease, properly executed in recordable form so
as to convey the title required by this Agreement, and (ii)
customary title affidavits, all required real property transfer
tax returns and payment for all transfer taxes or filing fees.
If required by Section 909 of the New York Business Corporation
Law, Seller shall deliver to Buyer at the Closing a resolution of
Seller's board of directors authorizing the sale and delivery of
each deed and a certificate executed by the secretary or
assistant secretary of Seller certifying as to the adoption of
such resolutions and setting forth facts showing that the
transfer complies with the requirements of such law. Each of the
deeds being delivered by Seller hereunder shall also contain a
recital sufficient to establish compliance with such law.
(c) Seller shall execute and deliver to Buyer a lease for the
Rochester Site in the form of EXHIBIT B attached hereto (the
"ROCHESTER LEASE"); and
(d) Seller shall deliver to Buyer: (i) all keys to each
Purchased Site and the Rochester Site, facilities, and equipment
transferred to Buyer and, (ii) all security and access codes, if
any, applicable to each Purchased Site and the Rochester Site,
facilities, and equipment transferred to Buyer.
SECTION 2.3. ASSUMPTION AND DELIVERY BY BUYER. On the Closing
Date, Buyer shall deliver to Seller, by wire transfer of
immediately available funds to an account designated in writing
by Seller no later than two (2) business days prior to the
Closing, the Initial Gross Purchase Price and an assumption
document in substantially the form attached hereto as EXHIBIT C
(the "ASSUMPTION AGREEMENT") assuming the liabilities described
in SECTION 1.3.
SECTION 2.4. MUTUAL PERFORMANCE. At the Closing, the parties
shall also deliver to each other the agreements and other
documents referred to in ARTICLE 5 hereof.
SECTION 2.5. FURTHER ASSURANCES. From time to time after the
Closing, at Buyer's request, Seller shall execute, acknowledge
and deliver to Buyer such other instruments of conveyance and
transfer and shall take such other actions and execute and
deliver such other documents, certifications and further
assurances as Buyer may reasonably request in order to vest more
effectively in Buyer, or to put Buyer more fully in possession
of, any of the Acquired Assets. Each of the parties hereto shall
cooperate with the others and execute and deliver to the other
parties such other instruments and documents and take such other
actions as may be reasonably requested from time to time by any
other party hereto as necessary to carry out, evidence and
confirm the intended purposes of this Agreement.
SECTION 2.6. EFFECTIVE DATE. The effective date of all
documents and instruments executed at the Closing shall be
January 1, 2001 unless otherwise specified. Notwithstanding the
foregoing, Seller shall retain the risk of loss for errors and
omissions committed up until the Closing Date.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF SELLER AND SHAREHOLDER
Seller and the Shareholders represent and warrant, jointly
and severally, to Buyer as follows:
SECTION 3.1. ORGANIZATION. Seller is a corporation organized
and in good standing under the laws of the State of New York and
its status is active. Seller has all requisite corporate power
and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its business as
now being conducted. Seller is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction where the conduct of its insurance agency business requires
it to be so qualified.
SECTION 3.2. CAPITALIZATION. The Shareholders own and hold all
of the outstanding shares of capital stock of Seller and there
are no outstanding options or rights to acquire additional shares
of capital stock of Seller.
SECTION 3.3. AUTHORITY. Seller has the requisite corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement have been duly
authorized by all necessary corporate action on the part of
Seller and the Shareholders, including without limitation
Seller's board of directors. This Agreement has been, and the
other agreements, documents and instruments required to be
delivered by Seller in accordance with the provisions hereof
(collectively, the "SELLER'S DOCUMENTS") shall be, duly executed
and delivered by duly authorized officers of Seller on behalf of
Seller, and this Agreement constitutes, and Seller's Documents
when executed and delivered shall constitute, the legal, valid
and binding obligations of Seller, enforceable against Seller in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization or similar law from time to time in
effect which offset creditors' rights generally and general
equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or in
law).
SECTION 3.4. CONSENTS AND APPROVALS; NO VIOLATIONS. Except as
set forth in SCHEDULE 3.4, neither the execution, delivery or
performance of this Agreement by Seller nor the consummation by
it of the transactions contemplated hereby nor compliance by it
with any of the provisions hereof shall (a) conflict with or
result in any breach of any provision of its Certificate of
Incorporation or Bylaws, (b) require any filing with, or permit,
authorization, consent or approval of, any court, arbitral
tribunal, administrative agency or commission, or other
governmental or other regulatory authority or agency (each a
"GOVERNMENTAL ENTITY"), or (c) result in a violation or breach
of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify or
cancel, or require any notice or consent under any of the terms,
conditions or provisions of any agreement or other instrument or
obligation to which Seller is a party or by which Seller or any
of its properties or assets may be bound.
SECTION 3.5. NO THIRD PARTY OPTIONS. There are no existing
agreements, options, commitments, or rights with, of or to any
person to acquire any of Seller's assets, properties or rights
included in the Acquired Assets or any interest therein.
SECTION 3.6. FINANCIAL STATEMENTS AND OTHER FINANCIAL DATA.
Attached hereto as EXHIBIT D are the following consolidated
financial statements (collectively the "FINANCIAL STATEMENTS"):
(a) audited and unaudited consolidated balance sheet and
consolidated statements of income, changes in shareholders'
equity and cash flow as of and for the fiscal years ended
December 31, 1997, December 31, 1998, and December 31, 1999 (the
"MOST RECENT FISCAL YEAR END") for Seller; and (b) unaudited
consolidated balance sheet and consolidated statements of income
(the "MOST RECENT FINANCIAL STATEMENTS") as of and for the eight
(8) months ended August 31, 2000 (the "MOST RECENT FISCAL MONTH
END"). The Financial Statements (including the Notes thereto)
have been prepared in accordance with generally accepted
accounting principles applied on a
consistent basis throughout the periods covered thereby, present
fairly the financial condition of Seller, including assets and
liabilities (whether accrued, absolute, contingent or otherwise)
as of such dates and the results of operations of Seller for such periods,
are materially correct and complete, and are materially consistent
with the books and records of Seller (which books and records are
correct and complete); PROVIDED, HOWEVER, that the Most Recent
Financial Statements lack footnotes and other presentation items.
Except as set forth in SCHEDULE 3.6 annexed hereto, Seller has
not guaranteed (with recourse) any premium financing exceeding
$25,000 in the aggregate on behalf of its customers.
SECTION 3.7. ORDINARY COURSE OF BUSINESS. Except as set forth
in SCHEDULE 3.7 annexed hereto, since the Most Recent Fiscal
Month End, Seller has carried on the Business in the usual,
regular and ordinary course in substantially the manner
heretofore conducted and has taken no unusual actions with
respect to the Business or the Acquired Assets in contemplation
of this transaction, except with the consent of Buyer. All of
Seller's accounts payable, including accounts payable to
insurance carriers, are current and reflected properly on its
books and records, and shall be paid in accordance with their
terms at their recorded amounts. Without limiting the generality
of the foregoing, except as set forth in SCHEDULE 3.7 annexed
hereto or otherwise permitted herein, since the Most Recent
Fiscal Month End without Buyer's written consent within its sole
discretion:
(a) Seller has not sold, leased, transferred, or
assigned any of its assets, tangible or intangible, used in the
Business other than for a fair consideration in the ordinary
course of business;
(b) Seller has not entered into any agreement,
contract, lease, or license (or series of related agreements,
contracts, leases, and licenses) relating to the Business either
involving more than $25,000 or outside the ordinary course of
business;
(c) no party (including Seller) has accelerated,
terminated, modified, or canceled any agreement, contract, lease,
or license (or series of related agreements, contracts, leases,
and licenses) relating to the Business involving more than
$25,000, to which Seller is a party or by which it is bound;
(d) Seller has not imposed or granted any mortgage,
pledge, lien, encumbrance, charge or other security interest upon
any of its assets, tangible or intangible, used in the Business;
(e) Seller has not made any capital expenditure (or
series of related capital expenditures) relating to the Business
either involving more than $25,000, or outside the ordinary
course of business;
(f) Seller has not made any capital investment in, any
loan to, or any acquisition of the securities or assets of, any
other person or entity (or series of related capital investments,
loans, and acquisitions) in connection with the Business either
involving more than $25,000, or outside the ordinary course of
business;
(g) except in connection with Seller's revolving
credit line, Seller has not, in connection with the Business,
issued any note, bond, or other debt security or created,
incurred, assumed, or guaranteed any indebtedness for borrowed
money or capitalized lease obligation either involving more than
$25,000, singly or $50,000, in the aggregate;
(h) Seller has not delayed or postponed the payment of
accounts payable and other liabilities relating to the Business
outside the ordinary course of business;
(i) Seller has not canceled, compromised, waived, or
released any right or claim (or series of related rights and
claims) relating to the Business either involving more than
$25,000, or outside the ordinary course of business;
(j) Seller has not granted any license or sublicense
of any rights under or with respect to any patent, trademark,
service ▇▇▇▇, logo, corporate name or computer software;
(k) there has been no change made or authorized in the
charter or bylaws of Seller;
(l) except for any transactions involving only the
Shareholder parties to this Agreement which transactions are set
forth on SCHEDULE 3.7 annexed hereto, Seller has not issued,
sold, or otherwise disposed of any of its capital stock, or
granted any options, warrants, or other rights to purchase or
obtain (including upon conversion, exchange, or exercise) any of
its capital stock;
(m) Seller has not declared, set aside, or paid any
dividend or made any distribution with respect to its capital
stock (except in the form of cash, Seller's stock, marketable
securities or other assets not included in the Acquired Assets)
or redeemed, purchased, or otherwise acquired any of its capital
stock;
(n) Seller has not experienced any damage,
destruction, or loss (whether or not covered by insurance) to its
property relating to the Business involving more than $25,000 per
occurrence;
(o) Seller has not made any loan to, or entered into
any other transaction with, any of its directors, officers, and
employees outside the ordinary course of business;
(p) except for the Assumed Operating Expenses listed
in SCHEDULE 1.2(C)(II), Seller has not entered into any
employment contract or collective bargaining agreement, written
or oral, or modified the terms of any existing such contract or
agreement;
(q) Seller has not granted any increase in the base
compensation of any of its employees employed in the Business
outside the ordinary course of business;
(r) Seller has not adopted, amended, modified or
terminated any bonus, profit-sharing, incentive, severance, or
other plan, contract, or commitment for the benefit of any of its
employees employed in the Business;
(s) Seller has not made any other change in employment
terms for any of its employees employed in the Business outside
the ordinary course of business;
(t) Seller has not made or pledged to make any
charitable or other capital contribution involving more than
$5,000 outside the ordinary course of business; and
(u) Seller has not entered into any agreement to
purchase or acquire any insurance agency business, except as
disclosed in SCHEDULE 1.5(A).
SECTION 3.8. ASSETS.
(a) Except for the Permitted Liens and Encumbrances, Seller owns
and holds, free and clear of any lien, charge, pledge, security
interest, restriction, encumbrance or third-party interest of any
kind whatsoever (including insurance company payables), sole and
exclusive right, marketable title and interest in and to the
Acquired Assets, together with the exclusive right to use such
records and all customer accounts, copies of insurance policies
and contracts in force and all files, invoices and records
pertaining to the customers, their contracts and insurance
policies, and all other information comprising the Purchased Book
of Business. Except as set forth in SCHEDULE 3.8(A) annexed
hereto, Seller has not received notice that any program, class of
business, or book of business in place with any single insurance
carrier that is included within the Purchased Book of Business
has canceled or non-renewed or intends to cancel or non-renew.
SCHEDULE 3.8(A) annexed hereto also sets forth Seller's "volume
report" describing premiums and commissions with respect to each
of Seller's appointed carriers for the twelve-month period ended
August 31, 2000. Except as set forth in SCHEDULE 3.8(A) annexed
hereto, none of the accounts comprising the Purchased Book of
Business represents material business that has been brokered
through a third party.
(b) The names "▇▇▇▇▇▇▇ Corporation," "▇▇▇▇▇▇▇ Insurance,"
"▇▇▇▇▇▇▇ Insurance of Wyoming, Inc." and "Vision Financial
Corporation" are the only trade names used by Seller (or any
subsidiary thereof) within the past three (3) years. No party
has filed a claim during the past three (3) years against Seller
or any subsidiary thereof alleging that Seller or any subsidiary
thereof has violated, infringed on or otherwise improperly used
the intellectual property rights of such party, or, if so, the
claim has been settled with no existing liability to Seller or
any subsidiary thereof and, to the knowledge of Seller and the
Shareholders, neither Seller nor any subsidiary thereof has
violated or infringed any trademark, trade name, service ▇▇▇▇,
service name, patent, copyright or trade secret held by others.
(c) SCHEDULE 3.8(C) annexed hereto lists all of the following
described contracts, agreements and other written or verbal
arrangements in connection with the Business to which Seller is a
party:
(i) any agreement (or group of related agreements) for the lease
of personal property to or from any person or entity providing
for lease payments in excess of $25,000 per annum and each
agreement for the lease of real property;
(ii) any agreement (or group of related agreements) for the
purchase or sale of raw materials, commodities, supplies,
products, or other personal property, or for the
furnishing or receipt of services, the performance of which shall
extend over a period of more than one (1) year from the Closing Date,
result in a loss to Seller, or involve consideration in excess of $25,000;
(iii) any agreement concerning a partnership or joint
venture;
(iv) any agreement (or group of related agreements) under which
it has created, incurred, assumed, or guaranteed any indebtedness
for borrowed money, or any capitalized lease obligation, in
excess of $25,000 or under which it has imposed a security
interest on any of its assets, tangible or intangible, including
each of the Assigned Contracts to the extent described by this
SECTION 3.8(C)(IV);
(v) any agreement concerning employment, confidentiality, non-
solicitation or non-competition, including each of the Assigned
Contracts to the extent described by this SECTION 3.8(C)(V);
(vi) any agreement involving any Shareholder or any Shareholder's
affiliates (other than Seller);
(vii) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance, or other plan or
arrangement for the benefit of any current or former directors,
officers, and employees;
(viii) any collective bargaining agreement;
(ix) any agreement for the employment of any individual on a full-
time, part-time, consulting, or other basis providing annual
compensation in excess of $50,000 or providing severance
benefits;
(x) any agreement under which Seller has advanced or loaned any
amount to any of its directors, officers, and employees outside
the ordinary course of business;
(xi) any agreement under which the consequences of a default or
termination could have an adverse effect on the Business,
financial condition, operations, results of operations or future
prospects of Seller of more than $25,000 per annum;
(xii) any other agreement (or group of related agreements)
the performance of which involves consideration in excess of
$25,000; and
(xiii) each of the agreements listed in SCHEDULE 1.2(G).
Seller has delivered, or made available for Buyer's review, true
and complete copies of each such agreement and, in the case of
unwritten agreements, a true and complete summary of such
arrangements. The parties to all such agreements are in
substantial compliance with the terms thereof. With respect to
each such agreement listed in SCHEDULE 3.8(C) annexed hereto: (A)
the agreement is legal, valid, binding, enforceable, and in full
force and effect; (B) subject to obtaining the consents listed in
SCHEDULE 3.4, the agreement shall continue to be legal, valid,
binding, enforceable, and in full force and effect on identical
terms following the consummation
of the transactions contemplated hereby (including the assignments
and assumptions referred to in Section 2, above); (C) no party is in
breach or default, and no event has occurred that with notice or lapse
of time would constitute a material breach or default, or permit termination,
modification, or acceleration, under the agreement; and (D) no
party has manifested to Seller a repudiation of any provision of
the agreement.
(d) To Seller's knowledge, Seller's computer software included
in the Acquired Assets adequately performs as presently utilized
by Seller in its operation of the Business, and should, for at
least twelve (12) months following the Closing, continue to
perform in such manner in the event that Buyer elects to continue
utilizing such software beyond the Closing Date. Seller has
delivered to Buyer substantially complete and correct copies of
all user and technical documentation issued to Seller by the
software producers related to such software.
(e) Except for liens and encumbrances that shall be paid in full
at the Closing from the Total Purchase Price and the Permitted
Liens and Encumbrances, Seller has good and marketable title in
fee simple to or a valid leasehold interest in the Real Property
described in SCHEDULE 1.2(F), free and clear of all liens and
encumbrances whatsoever. Other than the Tenant Agreements
described in SCHEDULE 1.2(G), no person or entity has any title
to or interest in or right to possess the Real Property or any
portion thereof, other than Seller. Immediately after
consummation of the transactions contemplated by this Agreement,
Buyer shall own or lease and be entitled to use the Real Property
free and clear of all liens and encumbrances other than the
Permitted Liens and Encumbrances.
(f) Seller owns or leases all buildings, equipment, and other
assets necessary for the conduct of the Business as presently
conducted and as presently proposed to be conducted by Seller.
All such assets are included within the Acquired Assets. All
tangible assets included within the Acquired Assets are being
transferred in "as is" and "where is" condition, except that they
are suitable for their present use, subject to normal wear and
tear.
(g) Seller is not a party to any agreement which would
constitute a New Acquisition or a Recent Acquisition except as
set forth in SCHEDULE 1.5(A) or as otherwise approved in writing
by Buyer.
Section 3.9 REAL PROPERTY With respect to all of the
Real Property and except for the Permitted Liens and Encumbrances
and as set forth in SCHEDULE 3.9 annexed hereto:
(a) Seller has an insurable fee simple title to the
Real Property free and clear of any and all liens, charges,
pledges, security interests, restrictions or encumbrances of any
kind except the Permitted Liens and Encumbrances;
(b) there are no pending or to the knowledge of Seller
any threatened condemnation proceedings, lawsuits, administrative
actions or sales in lieu thereof relating to the Real Property.
Seller has no knowledge of any proposed material increase in real
property taxes for the Real Property;
(c) the legal description for the Real Property
contained in the deeds therefor and in any lease describes the
Real Property fully and adequately;
(d) to the knowledge of Seller, (i) the buildings and
improvements are located within the boundary lines of the
described parcels of land, (ii) there exists no violation of
applicable setback requirements, zoning laws, and ordinances,
(iii) the land does not serve any adjoining property for any
purpose inconsistent with the use of the land, and (iv) the Real
Property is not located within any flood plain or subject to any
similar type restriction for which any licenses or permits
necessary to the use thereof have not been obtained;
(e) all Improvements have received all necessary
approvals of governmental authorities (including permits and
licenses) required in connection with the ownership or operation
thereof and have been and are being operated and maintained in
accordance with applicable laws, rules and regulations and the
terms and conditions of such licenses and permits;
(f) there are no parties in possession of the Real
Property other than Seller or other than pursuant to the Tenant
Agreements. There are no rights of first refusal to purchase any
parcel of Real Property or any portion thereof;
(g) all facilities and Improvements located on the
Real Property are supplied with utilities and other services
necessary for the operation of such facilities as operated by
Seller, including gas, electricity, water, telephone, sanitary
sewer, and storm sewer, all of which services are adequate to the
knowledge of Seller in accordance with all applicable laws,
ordinances, rules, and regulations and are provided via public
roads or via permanent, irrevocable, appurtenant easements
benefiting the Real Property;
(h) the Real Property abuts on and has direct
vehicular access to public roads and access to the property is
provided by paved public right-of-way with adequate curb cuts
available;
(i) the Real Property does not require any rights
over, or restrictions against, other property, in order to comply
with any zoning or land use laws or regulations or to operate the
Business thereon;
(j) to the knowledge of Seller, (A) All Improvements
are in compliance with all applicable laws; (B) there is no
structural or latent defect in any of the Improvements that has
not been disclosed to Buyer in writing; and (C) all Improvements
have been maintained in accordance with normal industry practice,
are in working order adequate for normal operations, are in good
operating condition and repair (subject to normal wear and tear),
and are suitable for the purposes for which they presently are
used. Seller has not received any notice from any insurance
company requiring or recommending that it make any material
repairs or perform any material work on the Real Property.
(k) Seller has filed all real property tax returns
that it was required to file. All such real property tax returns
and other returns were correct and complete in all material
respects. All real property taxes owed by Seller have been paid.
Seller is not currently the beneficiary of any extension of time
within which to file any real property tax return related to the
Real Property;
(l) Seller is not "foreign person" as defined under
Section 1445(f) of the Code; and
(m) Except for the specific representations and
warranties set forth herein, Buyer agrees to accept all
Improvements in "AS IS" condition as of the date hereof and
agrees that Seller has no obligation to repair, restore or
rebuild any portion thereof.
Section 3.10 LITIGATION AND CLAIMS. Except as disclosed
in SCHEDULE 3.10 annexed hereto, there is no suit, claim, action,
proceeding or investigation ("LITIGATION") pending or threatened
in writing against Seller, and, to the knowledge of Seller and
the Shareholders, there is no basis for such a suit, claim,
action, proceeding or investigation. Seller is not subject to
any outstanding order, writ, injunction or decree which, insofar
as can be reasonably foreseen, individually or in the aggregate,
in the future would have an adverse effect on Seller, the
Business or the Acquired Assets or would prevent Seller from
consummating the transactions contemplated hereby. No voluntary
or involuntary petition in bankruptcy, receivership, insolvency
or reorganization with respect to Seller, or petition to appoint
a receiver or trustee of Seller's property, has been filed by or
against Seller, nor shall Seller file such a petition prior to
the Closing Date or for one hundred (100) days thereafter, and if
such petition is filed by others, the same shall be promptly
discharged. Seller has not made any assignment for the benefit
of creditors or admitted in writing insolvency or that its
property at fair valuation shall not be sufficient to pay its
debts, nor shall Seller permit any judgment, execution,
attachment or levy against it or its properties to remain
outstanding or unsatisfied for more than ten (10) days.
Section 3.11 COMPLIANCE WITH APPLICABLE LAW. Seller holds
all permits, licenses, variances, exemptions, orders and
approvals of all Governmental Entities necessary for the lawful
conduct of the Business (collectively, the "PERMITS"), and Seller
is in compliance with the terms of the Permits except where
failure to comply would not have a material adverse effect on the
Business, financial condition, operations, results of operations
or future prospects of Seller. Seller is not in violation of any
law, ordinance or regulation of any Governmental Entity,
including, without limitation, any law, ordinance or regulation
relating to any of Seller's employment practices. As of the date
of this Agreement, no investigation or review by any Governmental
Entity with respect to Seller is pending or, to the knowledge of
Seller, threatened.
Section 3.12 TAX MATTERS. Except as set forth on SCHEDULE
3.12 annexed hereto:
(a) Seller has filed all Tax Returns that it was
required to file. All such Tax Returns were correct and complete
in all material respects. All Taxes owed by Seller (whether or
not shown on any Tax Return) have been paid, or Seller has made
adequate provision for the payment therefor. Seller currently is
not the beneficiary of any extension of time within which to file
any Tax Return. No claim has ever been made by an authority in a
jurisdiction where Seller does not file Tax Returns that it is or
may be subject to taxation by that jurisdiction. There are no
security interests on any of the assets of Seller that arose in
connection with any failure (or alleged failure) to pay any Tax.
(b) Seller has withheld and paid all Taxes required to
have been withheld and paid, if any, in connection with amounts
paid or owing to any employee, independent contractor, creditor,
Shareholder, or other third party.
(c) There is no material dispute or claim concerning
any Tax liability of Seller either (i) claimed or raised by any
authority in writing or (ii) as to which Seller has knowledge
based upon personal contact with any agent of such authority.
SCHEDULE 3.12 annexed hereto lists all federal, state, local, and
foreign income Tax Returns filed with respect to Seller for
taxable periods ended on or after December 31, 1996, indicates
those Tax Returns that have been audited, and indicates those Tax
Returns that currently are the subject of audit. Seller has
delivered to Buyer correct and complete copies of all federal
income Tax Returns, examination reports, and statements of
deficiencies assessed against or agreed to by Seller since
December 31, 1996.
(d) Seller has not waived any statute of limitations
in respect of Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency.
(e) Seller has not filed a consent under Code Section
341(f) concerning collapsible corporations. Seller has not made
any payments, is not obligated to make any payments, and is not a
party to any agreement that under certain circumstances could
obligate it to make any payments that shall not be deductible
under Code Section 280G. Seller has not been a United States
real property holding corporation within the meaning of Code
Section 897(c)(2) during the applicable period specified in Code
Section 897(c)(1)(A)(ii). Seller has disclosed on its federal
income Tax Returns all positions taken therein that could give
rise to a substantial understatement of federal income Tax within
the meaning of Code Section 6662. Seller is not a party to any
Tax allocation or sharing agreement. Seller (i) has not been a
member of an affiliated group within the meaning of Code Section
1504(a) of the Code, and (ii) has not had any liability for the
Taxes of any person or entity under United States Treasury
Regulation 1.1502-6 (or any similar provision of state, local,
or foreign law), as a transferee or successor, by contract, or
otherwise.
(f) The unpaid Taxes of Seller (i) did not, as of the
Most Recent Fiscal Month End, exceed the reserve for Tax
liability (rather than any reserve for deferred Taxes established
to reflect timing differences between book and Tax income) set
forth on the face of the balance sheet (rather than in any notes
thereto) included in the Most Recent Financial Statements and
(ii) do not exceed that reserve as adjusted for the passage of
time through the Closing Date in accordance with the past custom
and practice of Seller in filing its Tax Returns.
As used in this Agreement, the term, "TAX" means 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.
As used in this Agreement, the term, "TAX RETURN" means any
return, declaration, report, claim for refund, or information
return or statement relating to Taxes arising from the operation
of the Business or the ownership of the Acquired Assets,
including any schedule or attachment thereto, and including any
amendment thereof.
Section 3.13 NON-SOLICITATION COVENANTS. Neither Seller
nor any Shareholder is a party to any agreement that restricts
Seller's or any Shareholder's ability to compete in the insurance
agency industry or solicit specific insurance accounts.
Section 3.14 ERRORS AND OMISSIONS. Except as set forth in
SCHEDULE 3.14(I) annexed hereto, to Seller's knowledge, Seller
has not incurred any liability or taken or failed to take any
action that may reasonably be expected to result in a liability
for errors or omissions in the conduct of the Business, except
such liabilities as are fully covered by insurance (other than
deductibles). All errors and omissions claims currently pending
or threatened against Seller of which Seller's Director of
Auditing, Chief Financial Officer or President has knowledge are
set forth in SCHEDULE 3.14(II) annexed hereto. Seller has errors
and omission (E&O) insurance coverage in force, with minimum
liability limits of $10 million per occurrence and $10 million
aggregate, and a deductible of $100,000 per occurrence, and shall
provide to Buyer a Certificate of Insurance evidencing such
coverage prior to or on the Closing Date.
Section 3.15 ENVIRONMENT, HEALTH, AND SAFETY.
(a) Seller and its predecessors and affiliates have
complied with all Environmental, Health, and Safety Laws, and no
action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced
against it alleging any failure so to comply. Without limiting
the generality of the preceding sentence, each of Seller and its
predecessors and affiliates has obtained and been in compliance
with all of the terms and conditions of all permits, licenses,
and other authorizations that are required under, and has
complied with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules,
and timetables that are contained in, all Environmental, Health,
and Safety Laws.
(b) Seller has no liability (and none of Seller and
its predecessors and affiliates has handled or disposed of any
substance, arranged for the disposal of any substance, exposed
any employee or other individual to any substance or condition,
or owned or operated any property or facility in any manner that
could form the basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or
demand against Seller giving rise to any liability) for damage to
any site, location, or body of water (surface or subsurface), for
any illness of or personal injury to, any employee or other
individual, or for any reason under any Environmental, Health,
and Safety Law.
(c) No Hazardous Materials have been placed on or in
any structure on the Real Property by Seller or, to the knowledge
of Seller, by any prior owner or user of the Real Property. No
underground storage tanks for petroleum or any other substance,
or underground piping or conduits are or to the knowledge of
Seller, have previously been located on the Real Property. To
the knowledge of Seller, no other party has caused the release of
or contamination by Hazardous Materials on the Real Property.
Seller has provided, or no later than sixty (60)
days prior to the Closing Date (and thereafter, as such items are received
by Seller) shall provide, Buyer with all environmental studies,
records and reports in its possession or control, and all
correspondence with any governmental entities, concerning
environmental conditions of the Real Property.
(d) The Real Property and all equipment used in the
Business of Seller and its predecessors and affiliates are and
have been free of asbestos, polychlorinated biphenyls (PCBs),
methylene chloride, trichloroethylene, 1,2-trans-
dichloroethylene, dioxins, dibenzofurans, and Extremely Hazardous
Substances.
As used in this Agreement, the term, "ENVIRONMENTAL, HEALTH, AND
SAFETY LAWS" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource Conservation
and Recovery Act of 1976, and the Occupational Safety and Health
Act of 1970, each as amended, together with all other laws
(including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of
federal, state, local, and foreign governments (and all agencies
thereof) concerning pollution or protection of the environment,
public health and safety, or employee health and safety,
including laws relating to emissions, discharges, releases, or
threatened releases of pollutants, contaminants, or chemical,
industrial, hazardous, or toxic materials or wastes into ambient
air, surface water, ground water, or lands or otherwise relating
to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic
materials or wastes.
As used in this Agreement, the term, "EXTREMELY HAZARDOUS
SUBSTANCE" has the meaning set forth in Section 302 of the
Emergency Planning and Community Right-to-Know Act of 1986, as
amended.
As used in this Agreement the term "HAZARDOUS MATERIALS" means
any "toxic substance" as defined in 15 U.S.C. 2601 ET SEQ. on
the date hereof, including materials designated on the date
hereof as "hazardous substances" under 42 U.S.C. 9601 ET SEQ.
or other applicable laws, and toxic, radioactive, caustic, or
otherwise hazardous substances, including petroleum and its
derivatives, asbestos, PCBs, formaldehyde, chlordane and
heptachlor.
Section 3.16 POWER OF ATTORNEY. Except as set forth in
SCHEDULE 3.16 annexed hereto, there are no outstanding material
powers of attorney executed on behalf of Seller.
Section 3.17 INSURANCE. SCHEDULE 3.17 annexed hereto sets
forth the following information with respect to each insurance
policy (including policies providing property, casualty,
liability, and workers' compensation coverage and bond and surety
arrangements) to which Seller has been a named insured or
otherwise the beneficiary of coverage at any time within the past
three (3) years:
(a) the name, address, and telephone number of the
agent;
(b) the name of the insurer, the name of the
policyholder, and the name of each covered insured;
(c) the policy number and the period of coverage;
(d) the scope (including an indication of whether the
coverage was on a claims made, occurrence, or other basis) and
amount (including a description of how deductibles and ceilings
are calculated and operate) of coverage; and
(e) a description of any retroactive premium
adjustments or other loss-sharing arrangements.
To Seller's knowledge, no cancellation, amendment or increase of
premiums with respect to such insurance is pending or threatened
to occur at or prior to the Closing.
Section 3.18 LABOR MATTERS. Seller is not a party to or
bound by any collective bargaining agreement, nor has it
experienced any strikes, grievances, claims of unfair labor
practices, or other collective bargaining disputes. Seller has
not committed any unfair labor practice. To Seller's knowledge,
there are no organizational efforts presently being made or
threatened by or on behalf of any labor union with respect to
employees of Seller. Seller's current compensation and maximum
four-week severance obligations with respect to its corporate
department employees (at each such employee's then-current rate)
are set forth for such employees in SCHEDULE 1.5(C)(I).
Section 3.19 EMPLOYEE BENEFIT PLANS. (a) The only
employee benefit plans (defined as any plan, program, policy,
practice, contract, agreement or other arrangement providing for
compensation, severance, termination pay, performance awards,
stock or stock-related awards, fringe benefits or other employee
benefits of any kind, whether formal or informal, proposed or
final, funded or unfunded, and whether or not legally binding,
including without limitation, any "Employee Benefit Plan" within
the meaning of Section 3(3) of ERISA) which the Seller currently
maintains or to which the Seller currently contributes are the
401(k) plan, the health plan, the Benefit Bank plan, and the
deferred profit sharing plan (each a "SELLER PLAN" and
collectively, the "SELLER PLANS") and the two unfunded deferred
compensation plans in effect between Seller and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, respectively (each a "Deferred Compensation
Plan") and collectively, the "Deferred Compensation Plans")
summarized in SCHEDULE 3.19 annexed hereto. Seller maintains no
other employee benefit plans. Each of the Seller Plans (and each
related trust, insurance contract, or fund) complies in form and
have been operated and administered in all material respects in
accordance with their respective terms and applicable law,
including, without limitation, ERISA and the Code.
(b) All contributions (including all employer contributions
and employee salary reduction contributions) that are due have
been paid to each Seller Plan or Deferred Compensation Plan that
is an "Employee Pension Benefit Plan" (as defined in Section 3(2)
of ERISA).
(c) Each Seller Plan that is an Employee Pension Benefit
Plan has received a determination letter from the Internal
Revenue Service to the effect that it meets the requirements of
Code Section 401(a).
(d) The Seller does not participate currently and has never
participated in, and is not required currently and has never been
required to contribute to or otherwise participate in any plan,
program, or arrangement subject to Title IV of ERISA.
(e) The Seller does not maintain currently and has never
maintained, and is not required currently and has never been
required to contribute to or otherwise participate in any
Multiemployer Plan (as defined in ERISA Section 3(37)).
(f) No action, suit, proceeding, hearing, or investigation
with respect to the administration or the investment of the
assets of any Seller Plan or Deferred Compensation Plan (other
than routine claims for benefits) is pending.
(g) No individual (i) who has experienced a "qualifying
event," as that term is defined in Code Section 4980B(f)(3), and
(ii) who either was an employee of Seller or is a dependent or
spouse of a current or former employee of Seller, is currently
covered by a health plan of Seller pursuant to Code Section 4980B
or Part 6 of Title I of ERISA.
Section 3.20 UNDISCLOSED LIABILITIES. Except as set forth
on SCHEDULE 3.10 or SCHEDULE 3.20 annexed hereto, Seller has no
knowledge of any material liability relating to the Business or
the Acquired Assets (and to Seller's knowledge, there is no basis
for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against it
giving rise to any liability), except for (a) liabilities set
forth on the face of the balance sheet included in the Most
Recent Financial Statements and the notes to the Financial
Statements for the Most Recent Fiscal Year End, (b) the Assigned
Contracts and contracts and agreements not assumed by Buyer, (c)
the matters disclosed in SCHEDULE 3.10, together with the
deductibles for claims covered by insurance, and (d) liabilities
that have arisen after the Most Recent Fiscal Month End in the
ordinary course of business (none of which results from, arises
out of, relates to, is in the nature of, or was caused by any
breach of contract, breach of warranty, tort, infringement, or
violation of law).
Section 3.21 INTELLECTUAL PROPERTY.
(a) Seller owns or has the right to use pursuant to license,
sublicense, agreement, or permission all Intellectual Property
necessary or desirable for the operation of the Business as
presently conducted. Each item of Intellectual Property owned or
used by Seller in connection with the Business, other than use of
the name "▇▇▇▇▇▇▇ Corporation," immediately prior to the Closing
hereunder shall be owned or available for use by Buyer on
identical terms and conditions immediately subsequent to the
Closing hereunder.
(b) To the knowledge of Seller, Seller has not interfered with,
infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of third parties, and, to
Seller's knowledge, Seller has never received any charge,
complaint, claim, demand, or notice alleging any such
interference, infringement, misappropriation, or violation
(including any claim that Seller must license or refrain from
using any Intellectual Property rights of any third party). To
the knowledge of Seller, no third party has interfered with,
infringed upon, misappropriated, or otherwise come into conflict
with any Intellectual Property rights of Seller.
(c) Seller has no patents issued in its name, or patent
applications filed or pending. SCHEDULE 3.21(C) annexed hereto
identifies each material license, agreement, or other permission
that Seller has granted to any third party with respect to any of
its Intellectual Property (together with any exceptions). Seller
has delivered to Buyer, or made available to Buyer for its
review, correct and complete copies of all such licenses,
agreements, and permissions (as amended to date). SCHEDULE
3.21(C) also identifies each trade name and registered or
unregistered trademark or service ▇▇▇▇ used by Seller. With
respect to each item of Intellectual Property required to be
identified in SCHEDULE 3.21(C), except as otherwise set forth in
SCHEDULE 3.21(C):
(i) Seller possesses all right, title, and interest in and to
the item, free and clear of any security interest, license, or
other restriction;
(ii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge;
(iii) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or is threatened
that challenges the legality, validity, enforceability, use, or
ownership of the item; and
(iv) Seller has never agreed to indemnify any person or entity
for or against any interference, infringement, misappropriation,
or other conflict with respect to the item.
(d) SCHEDULE 3.21(D) annexed hereto identifies each material
item of Intellectual Property that any third party owns and that
Seller uses pursuant to license, sublicense, agreement, or
permission. Seller has delivered to Buyer, or made available to
Buyer for its review, correct and complete copies of all such
licenses, sublicenses, agreements, and permissions (as amended to
date). With respect to each item of Intellectual Property
required to be identified in SCHEDULE 3.21(D) annexed hereto,
except as otherwise set forth in SCHEDULE 3.21(D):
(i) the license, sublicense, agreement, or permission
covering the item is legal, valid, binding, enforceable, and in
full force and effect, assuming that it is the valid obligation
of the parties thereto other than Seller;
(ii) the license, sublicense, agreement, or permission shall
continue to be legal, valid, binding, enforceable, and in full
force and effect on identical terms following the consummation of
the transactions contemplated hereby (including the assignments
and assumptions referred to in ARTICLE 2 above), assuming that it
is the valid obligation of the parties thereto other than Seller;
(iii) neither Seller, nor to Seller's knowledge, the
other party or parties to the license, sublicense, agreement, or
permission is in material breach or default, and no event has
occurred that with notice or lapse of time would constitute a
default or permit termination, modification, or acceleration
thereunder;
(iv) no party to the license, sublicense, agreement, or
permission has manifested to Seller a repudiation of any
provision thereof;
(v) with respect to each sublicense, the representations
and warranties set forth in subsections (I) through (IV) above
are true and correct with respect to the underlying license;
(vi) to Seller's knowledge, the underlying item of
Intellectual Property is not subject to any outstanding
injunction, judgment, order, decree, ruling, or charge;
(vii) no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand is pending or,
to the knowledge of Seller, has been threatened in writing that
challenges the legality, validity, or enforceability of the
underlying item of Intellectual Property; and
(viii) Seller has not granted any sublicense or similar
right with respect to the license, sublicense, agreement, or
permission.
(e) To the knowledge of Seller, Seller shall not interfere with,
infringe upon, misappropriate, or otherwise come into conflict
with, any Intellectual Property rights of third parties as a
result of the continued operation of the Business as presently
conducted.
Section 3.22 SUBSIDIARIES. Except as set forth in
SCHEDULE 3.22 annexed hereto, Seller does not have and has not
had any subsidiaries (i.e., ownership of in excess of fifty
percent (50%) of the voting equity interest).
Section 3.23 NO MISREPRESENTATIONS. None of the
representations and warranties of Seller and the Shareholders set
forth in this Agreement or in the attached Schedules,
notwithstanding any investigation thereof by Buyer, contains any
untrue statement of a material fact, or omits the statement of
any material fact necessary to render the statements made not
materially misleading.
ARTICLE 4. BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to Seller and the Shareholders
as follows:
Section 4.1 ORGANIZATION. Buyer is a corporation
organized and in good standing under the laws of Florida, and its
status is active. Buyer has all requisite corporate power and
authority and all necessary governmental approvals to own, lease,
and operate its properties and to carry on its business as now
being conducted and as proposed to be conducted. Buyer is duly
qualified or licensed to do business and is in good standing in
each jurisdiction in which the
property owned, leased, or operated by it or the nature of the business
conducted by it or as proposed to be conducted by it makes such qualification or
licensing necessary.
Section 4.2 AUTHORITY. Buyer has the requisite corporate
power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution,
delivery, and performance of this Agreement, and the consummation
of the Agreement and the other transactions contemplated hereby,
have been duly authorized by all necessary corporate action on
the part of Buyer. This Agreement has been duly executed and
delivered by Buyer, and, assuming this Agreement constitutes a
valid and binding obligation of Seller, constitutes a valid and
binding obligation of Buyer, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization or similar laws from time to time in effect which
offset creditors' rights generally and general equitable
principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or in law).
Section 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS.
Neither the execution, delivery, or performance of this Agreement
by Buyer nor the consummation by Buyer of the transactions
contemplated hereby nor compliance by Buyer with any of the
provisions hereof will (a) conflict with or result in any breach
of any provision of the Articles of Incorporation or the Bylaws
of Buyer, (b) require any filing with, or authorization, consent,
or approval of, any Governmental Authority (except for necessary
reports and other filings in connection with the ▇▇▇▇-▇▇▇▇▇-
▇▇▇▇▇▇ Act (as defined in Section 5.12) and with the Securities
and Exchange Commission (the "SEC") and the New York Stock
Exchange), (c) result in a violation or breach of, or constitute
a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify or cancel, or
require any notice or consent any of the terms, conditions, or
provisions of any agreement or other instrument or obligation to
which Buyer is a party or by which Buyer or its properties or
assets may be bound.
Section 4.4 LITIGATION. Except as set forth in SCHEDULE
4.4, there is no suit, claim, action, proceeding, or
investigation pending or, to the knowledge of Buyer, threatened
against Buyer or its affiliates before any Governmental Authority
that is reasonably likely to have a material adverse effect on
Buyer or would prevent Buyer from consummating the transactions
contemplated by this Agreement. Buyer is not subject to any
outstanding order, writ, injunction or decree which, insofar as
can be reasonably foreseen, individually or in the aggregate, in
the future would have a material adverse effect on Buyer or would
prevent Buyer from consummating the transactions contemplated
hereby. No voluntary or involuntary petition in bankruptcy,
receivership, insolvency or reorganization with respect to Buyer,
or petition to appoint a receiver or trustee of Buyer's property,
has been filed by or against Buyer, nor shall Buyer file such a
petition prior to the Closing Date or for one hundred (100) days
thereafter, and if such petition is filed by others, the same
shall be promptly discharged. Buyer has not made any assignment
for the benefit of creditors or admitted in writing insolvency or
that its property at fair valuation shall not be sufficient to
pay its debts, nor shall Buyer permit any judgment, execution,
attachment or levy against it or its properties to remain
outstanding or unsatisfied for more than ten (10) days.
Section 4.5 COMPLIANCE WITH APPLICABLE LAW. Buyer holds
all permits, licenses, variances, exemptions, orders, and
approvals of all Governmental Entities necessary for the lawful
conduct of its insurance agency business. Buyer is not in
violation of any law, ordinance or regulation of any Governmental
Entity, including, without limitation, any law, ordinance or
regulation relating to any of Buyer's employment practices except
where a failure to comply would not have a material adverse
effect on Buyer. As of the date of this Agreement, no
investigation or review by any Governmental Entity with respect
to Buyer is pending or, to the knowledge of Buyer, threatened.
Section 4.6 CONTRACTS WITH THIRD PARTIES. Buyer and its
affiliates have no contract, agreement or understanding with any
third party concerning a potential sale of the Acquired Assets or
the Business, or any portion of either, following the Closing.
Section 4.7 FINANCIAL ABILITY. Buyer has adequate
financial resources and capability to consummate the transactions
contemplated by this Agreement and to honor its obligations
hereunder. Buyer will not become insolvent as a result of
consummating the transactions contemplated by this Agreement.
Section 4.8 NO MISREPRESENTATIONS. None of the
representations and warranties set forth in this Agreement,
notwithstanding any investigation thereof by Seller, contains any
untrue statement of a material fact, or omits the statement of
any material fact necessary to render the statements made not
materially misleading.
ARTICLE 5. ADDITIONAL AGREEMENTS AND CONDITIONS PRECEDENT
SECTION 5.1. BROKERS OR FINDERS. Each of the parties
represents, as to itself, its subsidiaries and its affiliates,
that no agent, broker, investment banker, financial advisor, or
other firm or person is or shall be entitled to any broker's or
finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by this Agreement, and
each of the parties agrees to indemnify and hold the others
harmless from and against any and all claims, liabilities, or
obligations with respect to any fees, commissions, or expenses
asserted by any person on the basis of any act or statement
alleged to have been made by such party or its affiliate.
SECTION 5.2. ERRORS AND OMISSIONS TAIL COVERAGE. On or prior
to the Closing Date, Seller shall purchase and pay in full for a
tail coverage extension on its errors and omissions insurance
policy. Seller shall use its commercially reasonable best
efforts to have Buyer added, at Buyer's expense, as an additional
insured to such tail coverage. Such coverage shall extend for a
period of at least three (3) years from the Closing Date, shall
have per occurrence and aggregate coverages and deductibles
consistent with the coverages and deductibles currently
maintained by Seller and shall otherwise be in form and substance
reasonably acceptable to Buyer. A Certificate of Insurance
evidencing such coverage shall be delivered to Buyer at or prior
to the Closing.
SECTION 5.3. EXPENSES. Each of Buyer, Seller, and the
Shareholders shall bear his, her or its own costs and expenses
(including legal fees and expenses) incurred in connection with
this Agreement and the transactions contemplated hereby.
SECTION 5.4. CONFIDENTIALITY.
(a) The parties to the Agreement agree to maintain the
terms of this Agreement, including the consideration payable by
Buyer, in strict confidence and shall not disclose such terms to
any third party without the prior written consent of Buyer,
unless required to do so by law. Buyer will be filing a copy of
this Agreement with its SEC filings and will otherwise reference
this Agreement in such filings and Buyer's financial statements.
(b) For a period of three (3) years following the
Closing Date, Seller shall treat confidential and hold as such
all of the information concerning the Business that is not
already generally available to the public ("CONFIDENTIAL
INFORMATION"), refrain from using any of the Confidential
Information except in connection with this Agreement, and deliver
promptly to Buyer or destroy, at the request and option of Buyer,
all tangible embodiments (and all copies) of the Confidential
Information that are in its possession. If Seller or any
Shareholder is requested or required (by oral question or request
for information or documents in any legal proceeding,
interrogatory, subpoena, civil investigative demand, or similar
process) to disclose any Confidential Information, Seller (on
behalf of itself or such Shareholder, as the case may be) shall
notify Buyer promptly of the request or requirement so that Buyer
may seek an appropriate protective order or waive compliance with
the provisions of this SECTION 5.4. If, in the absence of a
protective order or the receipt of a waiver hereunder, Seller or
such Shareholder is, on the advice of counsel, compelled to
disclose any Confidential Information, Seller or such
Shareholder, as the case may be, may disclose the Confidential
Information solely in connection with such matter; PROVIDED,
HOWEVER, that Seller or such Shareholder, as the case may be,
shall use its or his reasonable best efforts, at Buyer's cost, to
obtain, at the request of Buyer, an order or other assurance that
confidential treatment shall be accorded to such portion of the
Confidential Information required to be disclosed as Buyer shall
designate.
(c) The Confidentiality Agreement dated April 25, 2000
entered into by Buyer with Seller shall survive the execution and
delivery of this Agreement notwithstanding any other provision
hereof.
SECTION 5.5. ENFORCEMENT OF EMPLOYMENT AGREEMENTS. After the
Closing, and at Buyer's request, Seller shall (a) take all
reasonable measures to enforce the terms of those non-compete/non-
solicitation agreements with its employees that either have not
been or cannot be assigned to Buyer, including pursuing legal and
injunctive proceedings, and (b) cooperate with Buyer in enforcing
the terms of those contracts assigned to Buyer and shall join in
any legal or injunctive proceedings instituted by Buyer for such
purpose. Buyer shall bear all costs and fees associated with
such proceedings. Nothing in this SECTION 5.5, however, shall be
deemed or construed to limit or otherwise affect Seller's
indemnification obligations under ARTICLE 6 hereof.
SECTION 5.6. CORPORATE NAME. Promptly after the Closing,
Seller agrees to cease all use of the trade name "▇▇▇▇▇▇▇
INSURANCE" or any derivative thereof and shall, thereafter,
refrain from using the name "▇▇▇▇▇▇▇ Corporation" in connection
with any insurance-related business.
SECTION 5.7. TERMINATION OF SELLER PLANS. At the Closing,
Seller shall deliver to Buyer evidence that Seller has properly
terminated all Seller Plans, with such terminations effective
immediately prior to the Closing Date.
SECTION 5.8. ADDITIONAL PRE-CLOSING COVENANTS.
(a) OPERATION OF BUSINESS. Between the date hereof and the
Closing Date, Seller shall not, with respect to the Acquired
Assets and the Business, engage in any practice, take any action,
or enter into any transaction outside the ordinary course of
business without Buyer's consent. Without limiting the
generality of the foregoing, Seller shall not (i) declare, set
aside, or pay any dividend or make any distribution (except in
cash, Seller's stock, marketable securities or other assets not
included within the Acquired Assets) with respect to its capital
stock or redeem, purchase, or otherwise acquire any of its
capital stock, or (ii) otherwise engage in any practice, take any
action, or enter into any transaction of the sort described in
SECTION 3.7 above.
(b) PRESERVATION OF BUSINESS. Seller shall preserve and protect
the Business and the Acquired Assets, and shall not engage in any
activity with respect to its present operations, physical
facilities, working conditions, or relationships with lessors,
licensors, suppliers, customers, and employees, that would have a
material adverse effect on the Business or the Acquired Assets.
Notwithstanding the foregoing, each of the parties acknowledges
and agrees that Seller will attempt to use reasonable effects to
convert its third-party agency management computer system to the
Applied Win-Tam computer system prior to the Closing Date if
requested by Buyer.
(c) FULL ACCESS. Upon reasonable notice to Seller by Buyer,
Seller shall permit representatives of Buyer to have full access
to all premises, properties, personnel, books, records (including
tax records), contracts, and documents of or pertaining to the
Business and the Acquired Assets and shall furnish Buyer with
copies of such documents and instruments and with such
information with respect to the Business and the Acquired Assets
as Buyer may from time-to-time reasonably request. Such
obligations of Seller shall include, but not be limited to,
permitting an environmental consulting or other firm selected by
Buyer to perform an assessment and investigation sufficient to
permit it to provide Buyer a "Phase I Environmental Site
Assessment Report" or similar report with respect to the Acquired
Assets, including the Real Property, in scope, form, and content
acceptable to Buyer. Seller shall permit representatives of
Buyer to have further access if, after reviewing such report,
Buyer desires to have further environmental-related assessments,
tests, audits, or investigations made. No investigation by Buyer
shall affect in any manner the representations and warranties
made by Seller and the Shareholders in this Agreement, nor any
other certificate or agreement furnished or to be furnished by
Seller to Buyer or its representatives in connection herewith or
pursuant hereto, and the right of Buyer to rely on them. Seller
shall use its commercially reasonable best efforts to keep Buyer
fully informed as to the Business and the Acquired Assets and
advise Buyer of all important matters pertaining to the Business
and the Acquired Assets prior to Closing.
(d) EMPLOYMENT OFFERS. At reasonably mutually
agreeable times, Seller will permit Buyer to meet with its
employees throughout the period after execution of this Agreement
and prior to the Closing Date. Buyer may, at its option, extend
offers of employment
to all or any of Seller's employees effective only on the Closing Date.
Seller shall be responsible for compliance with the requirements of Code
Section 4980B and Part 6 of Title I of ERISA for all of Seller's employees.
Subject to ARTICLE 6 hereof, Seller shall indemnify and hold
Buyer harmless for any liability Buyer incurs at any time on or
after the Closing Date under the provision of Code Section 4980B
and Part 6 of Title I of ERISA with respect to any of Seller's
employees who do not become employees of Buyer on or after the
Closing Date.
(e) Notice of Developments. Seller and Buyer shall
give prompt written notice to the other of any material adverse
development causing a breach of any of its own, or with respect
to Seller, of any Shareholder's, representations and warranties
in ARTICLE 3 or ARTICLE 4 above, as applicable. No disclosure by
any party pursuant to this SECTION 5.8(E), however, shall be
deemed to amend or supplement the Schedules attached to this
Agreement or to prevent or cure any misrepresentation, breach of
warranty, or breach of covenant.
(f) Exclusivity. Prior to the Closing Date, Seller
and the Shareholders shall not (i) solicit, initiate, or
encourage the submission of any proposal or offer from any person
relating to (A) the Business or any assets or properties
comprising the Acquired Assets, or (B) without Buyer's prior
written approval in its sole discretion, the acquisition of any
capital stock or other voting securities, or any substantial
portion of the remaining assets (I.E., those assets other than
the Acquired Assets), of Seller (including any acquisition
structured as a merger, consolidation, or share exchange), or
(ii) without Buyer's prior written consent, participate in any
discussions or negotiations regarding, furnish any information
with respect to, or assist or participate in, or facilitate in
any other manner any effort or attempt by any person to do or
seek any of the foregoing. Seller and the Shareholders will
notify Buyer immediately if any person makes any proposal, offer,
inquiry, or contact with respect to any of the foregoing.
Notwithstanding the foregoing, Seller and the Shareholders agree
that in the event of any such transaction described in clause
(F)(I)(B) of this SECTION 5.8, such transaction shall be
expressly conditioned upon the acquiror entering into an
agreement, satisfactory to Buyer in its sole discretion, to
assume Seller and the Shareholders' rights and obligations under
this Agreement and the transactions contemplated herein.
Section 5.9 TITLE INSURANCE. Buyer may obtain at its
cost in preparation for the Closing with respect to the Real
Property a commitment for an ALTA Owner's Policy of Title
Insurance (10/17/92) with Standard New York Endorsement, in such
amount as Buyer may reasonably determine to be the fair market
value of such Real Property (including all Improvements located
thereon), and may at Closing purchase insurance thereunder
insuring title to the Real Property insuring the interests of
Buyer as of the Closing. Any title insurance policy delivered
under this SECTION 5.9 shall insure title to the Real Property
subject to the Permitted Liens and Encumbrances. The title
policy affirmatively shall (a) insure that the Real Property
includes all property as shown on the Survey, (b) contain an
endorsement insuring that each street adjacent to the Real
Property is a public street and that there is direct and
unencumbered vehicular access to such streets from the Real
Property, and (c) include such endorsements available in New York
as Buyer may elect to obtain.
Section 5.10 SURVEYS. With respect to the Real Property,
and as to which a title insurance policy is to be procured
pursuant to SECTION 5.9 above, Seller shall provide any surveys
which it has in its control or possession and shall:
(a) Certify the surveys to Buyer and Buyer's counsel
and the title insurance company issuing the title insurance
policy pursuant to SECTION 5.9 of this Agreement; and
(b) Redate the surveys to not more than thirty (30)
days prior to the Closing.
Section 5.11 TRANSFER TAX FORMS. Seller shall deliver at
Closing New York State and, if applicable, city and county
transfer tax forms, completed and ready for filing (except for
Buyer's signature and acknowledgment), and Buyer shall pay and be
liable for all New York State and, if applicable, city and county
real property transfer taxes associated with the sale to Buyer of
the Real Property.
Section 5.12 NOTICES AND CONSENTS. Seller shall give any
notices to third parties, and Seller shall use its commercially
reasonable best efforts to obtain any third party consents, that
Buyer may request in connection with the matters referred to in
SCHEDULE 3.4. Seller and Buyer shall give any notices to, make
any filings with, and use their commercially reasonable best
efforts and cooperate with one another to obtain any
authorizations, consents, and approvals of governments and
governmental agencies in connection with the matters referred to
in SECTION 3.4 above. Without limiting the generality of the
foregoing, each of the parties shall file any Notification and
Report Forms and related material that it may be required to file
with the Federal Trade Commission and the Antitrust Division of
the United States Department of Justice under the ▇▇▇▇-▇▇▇▇▇-
▇▇▇▇▇▇ Act, shall use its commercially reasonable best efforts to
obtain an early termination of the applicable waiting period, and
shall make any further filings pursuant thereto that may be
necessary, proper, or advisable in connection therewith. Buyer
shall be responsible for all filing fees due in connection with
any of the foregoing filings.
As used in this Agreement the term "▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ACT"
means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended, and any and all rules and regulations promulgated
thereunder.
Section 5.13 ADDITIONAL ACQUISITIONS. After the date
hereof, without the prior written approval of Buyer, which
approval may be withheld in Buyer's sole discretion, Seller shall
not enter into any agreement which would constitute a New
Acquisition. Seller shall not modify or terminate any New
Acquisition not yet closed without the prior written approval of
Buyer, which approval may be withheld in Buyer's sole discretion.
Notwithstanding the foregoing, however, Buyer acknowledges and
agrees that Seller may notify any third party acquiree in a
potential New Acquisition after the date hereof that Seller has
entered into this Agreement with Buyer, and that such third party
acquiree shall be given a reasonable opportunity after such
notification (but in no event later than December 31, 2000) to
terminate or rescind such New Acquisition. In the event such
potential New Acquisition acquiree elects to terminate or rescind
such New Acquisition, no liability shall accrue to either party.
Section 5.14 DELIVERY OF DISCLOSURE SCHEDULES. On or
prior to October 8, 2000, Seller shall provide to Buyer the
Schedules referred to herein (the "DISCLOSURE SCHEDULES") and, on
or prior to October 22, 2000, Buyer shall advise Seller if the
Disclosure Schedules are acceptable to Buyer in Buyer's sole
discretion. Unless Buyer advises Seller to the contrary in
writing on or before October 22, 2000, the Disclosure Schedules
shall be deemed acceptable to Buyer and SECTION 5.16(D) shall be
deemed fully satisfied.
Section 5.15 EMPLOYMENT AND NON-COMPETITION AGREEMENTS.
Buyer and each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ agree to execute
and deliver at the Closing the employment agreements in form and
substance set forth in EXHIBITS E-1 and E-2 attached hereto, and
the non-competition agreements in form and substance as set forth
in EXHIBIT F attached hereto.
Section 5.16 CONDITIONS TO EACH PARTY'S OBLIGATION. The
respective obligations of each party to effect the transactions
contemplated by this Agreement to take place on the Closing Date
shall be subject to the satisfaction prior to or on the Closing
Date of the following conditions, any of which may be waived by a
party with respect to its own obligation to close:
(a) APPROVALS. All authorizations, consents, orders,
or approvals of, or declarations or filings with, or expirations
of waiting periods imposed by, any Governmental Entity, the
failure to obtain which would have a material adverse effect on
Seller, shall have been filed, occurred, or been obtained. All
applicable waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall
have expired or otherwise been terminated.
(b) NO INJUNCTIONS OR RESTRAINTS. No temporary
restraining order, preliminary or permanent injunction, or other
order issued by any court of competent jurisdiction or other
legal restraint or prohibition shall be in effect (i) preventing
the consummation of the transactions contemplated hereunder, (ii)
that would cause any of the transactions contemplated by this
Agreement to be rescinded following consummation, (iii) affecting
adversely the right of Buyer to own the Acquired Assets or to
operate the Business, (iv) affecting adversely the Business,
assets, properties, operation (financial or otherwise), or
prospects of Buyer with respect to its ownership of the Acquired
Assets or operation of its business as a result of such
acquisition.
(c) THIRD PARTY CONSENTS. All third-party consents
listed in SCHEDULE 3.4, including that of any mortgagee of the
Real Property, shall have been obtained.
(d) SCHEDULES. On or prior to October 8, 2000, Seller
shall have delivered to Buyer all Disclosure Schedules and the
information contained in such Disclosure Schedules shall be
reasonably acceptable to Buyer.
(e) NO TERMINATION. This Agreement shall not have
been terminated pursuant to ARTICLE 7 of this Agreement.
Section 5.17 CONDITIONS TO OBLIGATIONS OF BUYER. The
obligation of Buyer to effect the transactions contemplated by
this Agreement to occur on the Closing Date is subject to the
satisfaction of the following conditions on or prior to the
Closing Date unless waived by Buyer:
(a) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller and the Shareholders set
forth in this Agreement shall be true and correct in all material
respects at and as of the Closing Date (unless such
representations or warranties provide that they are only made as
of the date hereof), except for such misrepresentations and
inaccurate warranties as will not, singly or in the aggregate, be
reasonably expected to have a material adverse effect on the
Acquired Assets or the Business.
(b) PERFORMANCE OF OBLIGATIONS BY SELLER AND THE
SHAREHOLDERS. Seller and the Shareholders shall have performed
all obligations required to be performed by them under this
Agreement at or prior to the Closing Date.
(c) SELLER AND SHAREHOLDERS' CERTIFICATES. Seller and
the Shareholders shall have delivered to Buyer a certificate to
the effect that each of the conditions specified in SECTIONS
5.16(A), (B) and (C), and SECTIONS 5.17(A) and (B) is satisfied
in all respects.
(d) OPINION OF SELLER'S COUNSEL. Buyer shall have
received from counsel to Seller an opinion in form reasonably
satisfactory to the Buyer, addressed to Buyer, and dated as of
the Closing Date.
(e) E&O CERTIFICATE. Buyer shall have received from
Seller a Certificate of Insurance as required in SECTION 5.2.
(f) TERMINATION OF SELLER EMPLOYEE BENEFIT PLANS.
Buyer shall have received satisfactory evidence from Seller that
Seller has properly terminated all Seller Employee Benefit Plans,
effective immediately prior to the Closing Date.
(g) EMPLOYMENT AGREEMENTS. Each of ▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to Buyer for
execution employment agreements in form and substance as set
forth in EXHIBITS E-1 and E-2 attached hereto.
(h) NON-COMPETITION AGREEMENTS. Seller and each of
the Shareholders shall have executed and delivered to Buyer for
execution non-competition agreements in form and substance as set
forth in EXHIBIT F attached hereto.
(i) FIRPTA CERTIFICATE. Seller shall have executed and
delivered to Buyer a certificate to the effect that it is not a
"foreign person" pursuant to United States Treasury Regulation
1.1445-2(b).
(j) COMPLETION OF ALL ACTIONS TO BE TAKEN BY SELLER
AND THE SHAREHOLDERS. All actions to be taken by Seller and the
Shareholders in connection with consummation of the transactions
contemplated hereby and all certificates, opinions, instruments,
and other documents required to effect the transactions
contemplated hereby shall be reasonably satisfactory in form and
substance to Buyer.
(k) COMPLETION OF DUE DILIGENCE. Buyer shall have
completed its due diligence investigation with respect to Seller
including, but not limited to, (i) business,
financial, operational, customer, worker's compensation, and employee due
diligence by October 22, 2000, with results satisfactory to Buyer
in its sole discretion, and (ii) its legal and regulatory due
diligence by November 15, 2000, with results satisfactory to
Buyer in its commercially reasonable discretion, and (iii)
subject to SECTION 7.1(C), its environmental and real estate due
diligence by the Closing Date, with results satisfactory to Buyer
in its commercially reasonable discretion.
Section 5.18 CONDITIONS TO OBLIGATION OF SELLER AND THE
SHAREHOLDERS. The obligations of Seller and the Shareholders to
effect the transactions contemplated by this Agreement to occur
on the Closing Date are subject to the satisfaction of the
following conditions on or prior to the Closing Date, unless
waived by Seller or any Shareholder:
(a) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer set forth in this
Agreement shall be true and correct in all material respects as
of the Closing Date, except for such representations and
inaccurate warranties as will not, singly or in the aggregate, be
reasonably expected to have a material adverse effect on Buyer.
(b) PERFORMANCE OF OBLIGATIONS BY BUYER. Buyer shall
have performed in all material respects all obligations required
to be performed by it under this Agreement at or prior to the
Closing Date.
(c) BUYER'S CLOSING CERTIFICATE. An officer of Buyer
shall have delivered to Seller a certificate to the effect that
each of the conditions specified in SECTIONS 5.16(A), (B) and (C)
and SECTIONS 5.18(A) and (B) are satisfied.
(d) OPINION OF BUYER'S COUNSEL. Seller shall have
received from counsel to Buyer an opinion in form reasonably
satisfactory to the Seller addressed to Seller and dated as of
the Closing Date.
(e) EMPLOYMENT AGREEMENTS. Buyer shall have executed
and delivered to each of ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ for
execution employment agreements in form and substance as set
forth in EXHIBITS E-1 and E-2 attached hereto.
(f) NON-COMPETITION AGREEMENTS. Buyer shall have
executed and delivered to each of the Shareholders for execution
non-competition agreements in form and substance as set forth in
EXHIBIT F attached hereto.
(g) COMPLETION OF ALL ACTIONS TAKEN BY BUYER. All
actions to be taken by Buyer in connection with consummation of
the transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the
transactions contemplated hereby shall be reasonably satisfactory
in form and substance to Seller.
Section 5.19 ADDITIONAL POST-CLOSING COVENANTS. The
parties agree as follows with respect to the period following the
Closing:
(a) GENERAl. Seller acknowledges and agrees that from
and after the Closing Buyer shall be entitled to possession of
all documents, books, records (including Tax
records), agreements, and financial data of any sort relating to the
Acquired Assets and the Business.
(b) LITIGATION SUPPORT. If and for so long as any
party actively is contesting or defending against any action,
suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand in connection with (i) any transaction
contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or
transaction on or prior to the Closing Date involving the
Acquired Assets, the Business or the obligations and liabilities
assumed hereunder, the other party shall cooperate with the
contesting or defending party and its counsel in the contest or
defense, make available its personnel, and provide such testimony
and access to its books and records as shall be necessary in
connection with the contest or defense, all at the sole cost and
expense of the contesting or defending party (unless the
contesting or defending party is entitled to indemnification
therefor under ARTICLE 6 hereof).
(c) TRANSITION. Seller shall not take any action that
is designed or intended to have the effect of discouraging any
lessor, licensor, customer, supplier, insurance carrier, or other
business associate of Seller from maintaining the same business
relationships with Buyer after the Closing as it maintained with
Seller prior to the Closing. Seller shall attempt to refer all
customer inquiries relating to the Business to Buyer from and
after the Closing.
Section 5.20 CONSENTS TO ASSIGNMENT.
(a) Anything in this Agreement to the contrary
notwithstanding, this Agreement shall not constitute an agreement
to assign any contract, lease, license or agreement of any claim
or right or any benefit arising thereunder or resulting therefrom
if an attempted assignment thereof, without the consent of a
third party thereto, would constitute a breach thereof.
(b) If any such consent is not obtained prior to the
Closing, Seller and Buyer shall cooperate (at their own expense)
in any lawful and reasonable arrangement under which Buyer shall
obtain the economic claims, rights and benefits under the asset,
claim or right with respect to which the consent has not been
obtained in accordance with this Agreement, including
subcontracting, sublicensing or subleasing to Buyer and
enforcement of any and all rights of Seller against the other
party thereto arising out of a breach or cancellation thereof by
the other party; PROVIDED, HOWEVER, that if such an arrangement
is made and Buyer obtains the economic claims, rights and
benefits under any such asset, claim or right, any liability,
obligation or commitment of Seller arising on or after the
Closing Date under such asset, claim or right shall be an assumed
liability under SECTION 1.3(C).
ARTICLE 6. INDEMNIFICATION
SECTION 6.1. SURVIVAL OF REPRESENTATIONS, WARRANTIES,
INDEMNITIES AND COVENANTS.
(a) Subject to SECTION 6.1(B), the representations, warranties
and indemnities set forth in this Agreement shall survive for a
period of two (2) years from the Closing Date. If a party has
received notice of a potential breach of a representation,
warranty or covenant, or an otherwise indemnifiable event under
this ARTICLE 6, within such two-year period, it may preserve its
right to assert a later claim for damages caused by such breach
by delivering written notice of the breach (which shall specify
the nature of the breach with reasonable factual detail to the
extent then in the possession of such party) to the breaching
party within ninety (90) days after such two (2) year period.
All post-closing covenants shall survive the Closing for the
period(s) specified in this Agreement or, if not specified, for a
period of three (3) years following the Closing Date.
(b) Notwithstanding anything set forth in SECTION 6.1(A), (i)
the indemnification provisions of SECTION 6.2(A) shall survive
for a period of one (1) year in accordance with such section,
(ii) to the extent and only to the extent that the
indemnification provisions of SECTION 6.2(B)(II) apply to Adverse
Consequences that result from, arise out of, relate to, or are
caused by errors or omissions which (A) occurred on or prior to
December 31, 2000 and (B) result in a loss after renewal of a
policy by Buyer after the Closing Date, such provisions shall
survive for a period of one (1) year, rather than two (2) years,
from the Closing Date, and (iii) all representations, warranties,
covenants and indemnities in connection with any tax liabilities
of Seller or the Shareholders shall survive in perpetuity
(subject to any applicable statutes of limitation).
SECTION 6.2. INDEMNIFICATION PROVISIONS FOR THE BENEFIT OF
BUYER.
(a) To the extent that any Diverting Employee (as defined below)
diverts, prior to January 1, 2002, any line of coverage which is
part of any account comprising the Purchased Book of Business,
Buyer shall be paid by Seller and Shareholders (which obligations
shall be joint and several) an amount equal to (i) 1.55
MULTIPLIED BY (ii) the difference of (A) the aggregate annualized
policy commissions on such diverted lines of coverage MINUS (B)
$425,000.
For purposes of this Agreement, a "DIVERTING EMPLOYEE" means any
person who (i) is an employee of Seller as of the date of this
Agreement or becomes an employee of Seller during the period from
the date of this Agreement through January 1, 2001, and (ii)
either (A) does not sign Buyer's standard employment agreement or
(B) signs Buyer's standard employment agreement but nevertheless
does not become employed by Buyer on January 1, 2001.
(b) From and after the Closing, Seller and the Shareholders
agree, jointly and severally, to indemnify and hold Buyer and its
officers, directors, and affiliates harmless from and against any
Adverse Consequences (as defined below) any of such parties may
suffer or incur, to the extent that they result from, arise out
of, relate to, or are caused by (i) the breach of any of
Seller's or the Shareholders' representations, warranties, obligations or
covenants contained herein, or (ii) the operation of the Business
or the ownership of the Acquired Assets by Seller on or prior to
the Closing Date, including, without limitation, any claims or
lawsuits based on conduct of Seller or the Shareholders occurring
before the Closing. For purposes of this Agreement, the phrase
"ADVERSE CONSEQUENCES" means all charges, complaints, actions,
suits, proceedings, hearings, investigations, claims, demands,
judgments, orders, decrees, stipulations, injunctions, damages,
dues, penalties, fines, costs, amounts paid in settlement,
liabilities (whether known or unknown, whether absolute or
contingent, whether liquidated or unliquidated, and whether due
or to become due), obligations, taxes, liens, losses, expenses,
and fees, including all reasonable attorneys' fees and court
costs.
(c) In addition to and without limiting the foregoing, Seller
and the Shareholders, jointly and severally, agree, from and
after the Closing, to indemnify Buyer from and against the
entirety of any Adverse Consequences Buyer may suffer resulting
from, arising out of, relating to, in the nature of, or caused
by:
(i) any liability or obligation of Seller that is not assumed
hereunder (including any liability of Seller that becomes a
liability of Buyer under any bulk transfer law of any
jurisdiction, under any common law doctrine of de facto merger or
successor liability, or otherwise by operation of law); or
(ii) any liability of Seller for the unpaid taxes of any person
or entity (including Seller) under United States Treasury
Regulation 1.1502-6 (or any similar provision of state, local,
or foreign law), as a transferee or successor, by contract, or
otherwise.
Section 6.3 INDEMNIFICATION PROVISIONS FOR THE BENEFIT OF
SELLER AND THE SHAREHOLDERS. From and after the Closing, Buyer
agrees to indemnify and hold Seller, the Shareholders and their
respective officers, directors, shareholders and affiliates
harmless from and against any Adverse Consequences any of such
parties may suffer or incur, to the extent they result from,
arise out of, relate to, or are caused by (a) the breach of any
of Buyer's obligations or covenants contained herein, (b) the
operation of the Business or ownership of the Acquired Assets by
Buyer after the Closing Date, including, without limitation, any
claims or lawsuits based on conduct of Buyer occurring after the
Closing, or (c) liabilities and obligations of Seller assumed by
Buyer hereunder.
Section 6.4 MATTERS INVOLVING THIRD PARTIES.
(a) If any third party shall notify any party (the
"INDEMNIFIED PARTY") with respect to any matter (a "THIRD PARTY
CLAIM") that may give rise to a claim for indemnification against
the other party (the "INDEMNIFYING PARTY") under this ARTICLE 6,
then the Indemnified Party shall promptly notify (which the
Indemnified Party will endeavor to provide, by the sooner to
occur of (i) fifteen (15) business days after receipt of notice
by it or (ii) five (5) days prior to the date a responsive
pleading is due) the Indemnifying Party thereof in writing;
PROVIDED, HOWEVER, that no delay on the part of the Indemnified
Party in notifying the Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and then
solely to the extent) that the Indemnifying Party thereby is
prejudiced.
(b) The Indemnifying Party shall have the right to
defend the Indemnified Party against the Third Party Claim with
counsel of its choice reasonably satisfactory to the Indemnified
Party so long as (i) the Indemnifying Party notifies the
Indemnified Party in writing within fifteen (15) days after the
Indemnified Party has given notice of the Third Party Claim that
the Indemnifying Party shall indemnify the Indemnified Party from
and against the entirety of any Adverse Consequences (subject to
the limitations of SECTION 6.5) the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim, (ii) the Indemnifying Party
provides the Indemnified Party with evidence reasonably
acceptable to the Indemnified Party that the Indemnifying Party
shall have the financial resources to defend against the Third
Party Claim and fulfill its indemnification obligations
hereunder, (iii) the Third Party Claim involves only money
damages and does not seek by way of a motion an injunction or
other equitable relief, (iv) settlement of, or an adverse
judgment with respect to, the Third Party Claim is not, in the
good faith judgment of the Indemnified Party, likely to establish
a precedential custom or practice materially adverse to the
continuing business interests of the Indemnified Party, and (v)
the Indemnifying Party conducts the defense of the Third Party
Claim actively and diligently.
(c) So long as the Indemnifying Party is conducting
the defense of the Third Party Claim in accordance with SECTION
6.4(b) above, (i) the Indemnified Party may retain separate co-
counsel at its sole cost and expense and participate in the
defense of the Third Party Claim, (ii) the Indemnified Party
shall not consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the
prior written consent of the Indemnifying Party, and (iii) the
Indemnifying Party shall not consent to the entry of any judgment
or enter into any settlement with respect to the Third Party
Claim without the prior written consent of the Indemnified Party.
(d) If any of the conditions in SECTION 6.4(B) above is or
becomes unsatisfied, however, (i) the Indemnified Party may
defend against, and consent to the entry of any judgment or enter
into any settlement with respect to, the Third Party Claim in any
manner it may deem appropriate (and the Indemnified Party need
not consult with, or obtain any consent from, the Indemnifying
Party in connection therewith), (ii) the Indemnifying Party shall
reimburse the Indemnified Party promptly and periodically (but no
more frequently that monthly) for the costs of defending against
the Third Party Claim (including reasonable attorneys' fees and
expenses), and (iii) the Indemnifying Party shall remain
responsible for any Adverse Consequences the Indemnified Party
may suffer resulting from, arising out of, relating to, in the
nature of, or caused by the Third Party Claim to the fullest
extent provided in this ARTICLE 6.
Section 6.5 LIMITATION ON INDEMNIFICATION. Anything in
this Agreement to the contrary notwithstanding, no party shall be
entitled to indemnification hereunder with respect to any claim
or claims unless and until the aggregate amount of the
indemnified claim or claims exceeds $100,000, provided that once
such party's claims exceed $100,000 in the aggregate, such party
shall be entitled to be indemnified only to the extent that such
claims exceed such initial $100,000. Anything herein to the
contrary notwithstanding, Adverse Consequences with respect to
any breach or claim under this ARTICLE 6 (excluding any claim
under Section 6.2(a)) shall be limited strictly to direct
damages, out-of-pocket costs, out-of-pocket expenses and out-of-
pocket deficiencies arising out of, based upon or otherwise in
respect of such breach or claim, and shall not include any loss
of profits, consequential damages or any other form of indirect
damages.
Section 6.6 EXCLUSIVE REMEDY. From and after the
Closing, except for remedies that cannot be waived as a matter of
law and except for injunctive relief, the rights to
indemnification under this ARTICLE 6 shall be the exclusive
remedy for the parties with respect to this Agreement
contemplated and consummated hereby, and the parties shall not be
entitled to pursue, and each hereby expressly waives as of the
Closing Date, any and all other rights that may otherwise be
available to either of them either at law or in equity with
respect thereto. This SECTION 6.6 does not limit the remedies
available to any party under any other agreement or instrument
executed in connection with this Agreement. Notwithstanding the
foregoing, nothing contained in this SECTION 6.6 shall prevent
any party hereto from seeking and obtaining, as and to the extent
permitted by applicable law, specific performance by the other
party hereto of any of its obligations under this Agreement or
injunctive relief against the other party's activities in breach
of this Agreement.
Section 6.7 RECOVERIES. Prior to asserting any claim
pursuant to this ARTICLE 6, each Indemnified Party shall file, or
cause to be filed, a claim with respect to the liabilities in
question under applicable insurance policies, if any, maintained
by such Indemnified Party or any subsidiary, division or
affiliate thereof. The amount of any Adverse Consequences
suffered, sustained, incurred or required to be paid to or for
the benefit of any Indemnified Person shall be reduced by the
amount of (a) any insurance proceeds and other amounts paid to or
for the benefit of the Indemnified Person with respect to such
Adverse Consequences by any person not a party to this Agreement
or (b) any income or tax benefits actually received by or for the
benefit of the Indemnified Person or any Affiliate of any
Indemnified Person.
Section 6.8 PAYMENT OF ADVERSE CONSEQUENCES. The
Indemnifying Person shall pay to the Indemnified Person in cash
the amount of any Adverse Consequence to which the Indemnified
Person may become entitled by reason of the provisions of this
ARTICLE 6, such payment to be made within fifteen (15) days after
such Adverse Consequences are finally determined either by mutual
agreement of the parties hereto or pursuant to the final
unappealable judgment of a court of competent jurisdiction.
Article 7. Termination
SECTION 7.1. TERMINATION OF AGREEMENT. Certain of the parties
may terminate this Agreement as follows:
(a) Buyer and Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(b) Buyer may terminate this Agreement by giving written notice
to Seller on or before October 22, 2000, if (i) Buyer is not
satisfied within its sole and absolute discretion with the
results of its continuing business, financial and accounting due
diligence regarding
Seller or (ii) the Disclosure Schedules are not acceptable to Buyer in
Buyer's sole discretion as provided in SECTION 5.14;
(c) Buyer may terminate this Agreement by giving
written notice to Seller (i) on or before November 15, 2000 if
Buyer is not satisfied within its commercially reasonable
discretion with the results of its legal and regulatory due
diligence regarding Seller, and (ii) at any time prior to the
Closing if Buyer is not satisfied within its commercially
reasonable discretion with the results of its environmental and
real estate due diligence regarding Seller; PROVIDED, HOWEVER,
that if Buyer's dissatisfaction relates to its due diligence
investigation of any of the Real Property, Buyer shall specify
such portion(s) of the Real Property and, at Buyer's sole
election, exclude such portion(s) from the conveyance of the
Acquired Assets (with a corresponding reduction in the Total
Purchase Price based on the allocations contained in SECTION
1.5(E)) and, also at its election, then negotiate a mutually
agreeable lease for such portion(s) with Seller, in which case it
shall not have a right to terminate this Agreement under such
circumstances;
(d) Seller may terminate this Agreement by giving
written notice to Buyer if Buyer notifies Seller that the
Disclosure Schedules are not reasonably acceptable to Buyer or
that it is not satisfied with any aspect of its due diligence
which allows it not to close the transactions contemplated
hereunder pursuant to SECTION 7.1(B) or (C).
(e) Buyer may terminate this Agreement by giving
written notice to Seller at any time prior to the Closing (i) if
Seller has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect
which would be reasonably expected to have a material adverse
effect on the Acquired Assets or the Business, Buyer has notified
Seller of the breach, and the breach has continued without cure
for a period of thirty (30) days after the notice of breach or
(ii) if the Closing shall not have occurred on or before January
31, 2001 (or such later date permitted herein), by reason of the
failure of any condition precedent under SECTION 5.16 hereof
(unless the failure results primarily from Buyer itself breaching
any representation, warranty, or covenant contained in this
Agreement); and
(f) Seller may terminate this Agreement by giving
written notice to Buyer at any time prior to the Closing (i) if
Buyer has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect,
Seller has notified Buyer of the breach, and the breach has
continued without cure for a period of thirty (30) days after the
notice of breach or (ii) if the Closing shall not have occurred
on or before January 31, 2001 (or such later date permitted
herein), by reason of the failure of any condition precedent
under SECTION 5.17 hereof (unless the failure results primarily
from Seller itself breaching any representation, warranty, or
covenant contained in this Agreement).
SECTION 7.2. EFFECT OF TERMINATION.
(a) Except as provided in SECTION 7.2(B), if any party
terminates this Agreement pursuant to SECTION 7.1 above, all
rights and obligations of the parties hereunder shall terminate
without any liability of any party to any other party (except for
any liability of any party then in material breach of this
Agreement).
(b) If Buyer terminates this Agreement pursuant to
SECTION 7.1(B) or (C) above, all rights and obligations of the
parties hereunder shall terminate without any liability of any
party to any other party of any kind except for a willful breach
of a material obligation under this Agreement by Seller.
Article 8. Miscellaneous
SECTION 8.1. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if
delivered personally, telecopied (if confirmed), or mailed by
registered or certified mail (return receipt requested), or
overnight courier service 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 Buyer, to
▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
Holland & Knight LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(b) If to Seller or to the Shareholder, to
▇▇▇▇▇▇▇ Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP
Suite ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. Forth, Esq.
Any party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be
delivered by giving the other party notice in the manner herein
set forth.
SECTION 8.2. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which 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 parties, it being understood that all
parties need not sign the same counterpart.
SECTION 8.3. ENTIRE AGREEMENT. This Agreement (including the
documents and instruments referred to herein) constitutes the
entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof.
SECTION 8.4. ASSIGNMENT. Except as contemplated in SECTION 5.4
hereof, neither this Agreement nor any of the rights, interests,
or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. This Agreement shall
be binding upon, inure to the benefit of, and be enforceable by
the parties and their respective successors and assigns.
SECTION 8.5. SEVERABILITY AND INTERPRETATION. If any provision
or covenant, or any part thereof, of this Agreement should be
held by any court to be illegal, invalid or unenforceable, either
in whole or in part, such illegality, invalidity or
unenforceability shall not affect the legality, validity or
enforceability of the remaining provisions or covenants, or any
part thereof, all of which shall remain in full force and effect.
The fact that specific dollar amounts are used herein as
thresholds for disclosure, indemnification obligations or
otherwise is not intended to be, and shall not in any way be,
interpreted to be considered a "material" amount relative to the
Acquired Assets or the Business, but rather is a separate amount
agreed upon by the parties for the particular purpose for which
it is used.
SECTION 8.6. ATTORNEYS' FEES AND COSTS. The prevailing party
in any proceeding brought to enforce the terms of this Agreement
shall be entitled to an award of reasonable attorneys' fees and
costs incurred in investigating and pursuing such action, both at
the trial and appellate levels.
SECTION 8.7. GOVERNING LAW. This Agreement has been made in
the State of Florida and shall be governed by and construed and
enforced in accordance with internal Florida law without regard
to any applicable conflicts of law.
SECTION 8.8. AMENDMENT; WAIVER. No amendment of any provision
of this Agreement shall be valid unless the same shall be in
writing and signed by the parties hereto. Seller may consent to
any such amendment for itself at any time prior to the Closing
without the prior authorization of its Board of Directors or the
Shareholders. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
Section 8.9. INCORPORATION OF EXHIBITS AND SCHEDULES. The
Exhibits and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
Section 8.10. SPECIFIC PERFORMANCE. Each of the parties
acknowledges and agrees that the other party would be damaged
irreparably if any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise
are breached. Accordingly, each of the parties agrees that the
other party shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions
hereof in any action instituted in any court of the United States
or any state thereof having jurisdiction over the parties and the
matter in addition to any other remedy to which it may be
entitled, at law or in equity.
Section 8.11 BULK TRANSFER LAWS. Seller warrants
and agrees to pay and discharge when due all claims of creditors
that could be asserted against Buyer by reason of non-compliance
with the provisions of any bulk transfer laws of any jurisdiction
in connection with the transactions contemplated by this
Agreement, and acknowledges that such liabilities and obligations
are not to be assumed by Buyer hereunder. Seller hereby
indemnifies and agrees to hold Buyer harmless from, against and
in respect of, and shall on demand reimburse Buyer for, any loss,
liability, cost or expense suffered or incurred by Buyer by
reason of the failure of Seller to pay or discharge any such
claims.
* * * * * * * * * *
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGES
FOLLOW]
IN WITNESS WHEREOF, the parties have signed or caused this
Agreement to be signed by their respective officers thereunto
duly authorized as of the date first written above.
BUYER:
▇▇▇▇▇ & ▇▇▇▇▇, INC.
By: /S/ ▇. ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman, President & CEO
SELLER:
▇▇▇▇▇▇▇ CORPORATION
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
SHAREHOLDERS:
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually
/S/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, individually
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, individually
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, individually
/S/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, individually
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee for
the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust
for ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee for
the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust
for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee for
the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust
for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee for
the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Trust
for ▇▇▇▇▇ ▇▇▇▇▇▇▇
EXHIBITS AND SCHEDULES
EXHIBIT A: Form of Escrow Agreement
EXHIBIT B: Form of Rochester Lease
EXHIBIT C: Form of Assumption Agreement
EXHIBIT D: Financial Statements
EXHIBIT E-1: Form of Employment Agreement for ▇▇▇▇ ▇▇▇▇▇▇▇
EXHIBIT E-2: Form of Employment Agreement for ▇▇▇▇▇ ▇▇▇▇▇▇▇
EXHIBIT F: Form of Non-Competition Agreement
SCHEDULE 1.1(B): Permitted Liens and Encumbrances
SCHEDULE 1.2(C)(I): Assumed Acquisition Agreements
SCHEDULE 1.2(C)(II): Assumed Operating Expenses
SCHEDULE 1.2(C)(IV): Other Contracts and Agreements
SCHEDULE 1.2(E): Tangible Property
SCHEDULE 1.2(F): Real Property
SCHEDULE 1.2(G): Tenant Agreements
SCHEDULE 1.5(A): Recent Acquisitions and New Acquisitions
SCHEDULE 1.5(C)(I): Corporate Department Employees Terminated By Seller
SCHEDULE 1.5(C)(II): Employee Terminations
SCHEDULE 3.4: Consents
SCHEDULE 3.6: Seller-Guaranteed Premium Financing for Customers
SCHEDULE 3.7: Actions Outside Ordinary Course of Business
SCHEDULE 3.8(A): Liens and Encumbrances; Cancellation or
Non-Renewal Notices; Twelve-Month Revenues of
Seller by Appointed Carrier
SCHEDULE 3.8(C): Material Contracts
SCHEDULE 3.9: Title Exceptions
SCHEDULE 3.10: List of Claims and Litigation of Seller
SCHEDULE 3.12: Tax Returns and Other Tax Matters
SCHEDULE 3.14(I): Actions Creating Errors and Omissions
SCHEDULE 3.14(II): Errors and Omissions Claims Currently Pending or
Threatened
SCHEDULE 3.16: Outstanding Powers of Attorney of Seller
SCHEDULE 3.17: Insurance
SCHEDULE 3.19: Employee Benefit Plans
SCHEDULE 3.20: Material Liabilities
SCHEDULE 3.21(c): Patents and Tradenames
SCHEDULE 3.21(d): Licensed Intellectual Property
SCHEDULE 3.22: Subsidiaries
SCHEDULE 4.4: List of Claims and Litigation of Buyer
