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EXHIBIT 10.75
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
RISCORP, INC., and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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TABLE OF CONTENTS
Page No.
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ARTICLE I
DEFINITIONS
ARTICLE II
PURCHASE AND SALE OF COMPANY SHARES
Section 2.1 Basic Transaction...........................................-6-
Section 2.2 Purchase Price..............................................-6-
Section 2.3 The Closing.................................................-6-
Section 2.4 Deliveries at the Closing...................................-7-
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION
Section 3.1 Representations and Warranties of the Sellers...............-7-
Section 3.2 Representations and Warranties of the Buyer.................-8-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
Section 4.1 Organization................................................-9-
Section 4.2 Capitalization..............................................-9-
Section 4.3 Financial Statements........................................-9-
Section 4.4 Absence of Certain Changes.................................-10-
Section 4.5 No Undisclosed Liabilities.................................-12-
Section 4.6 Employee Benefits..........................................-13-
Section 4.7 Other Benefit Plans........................................-14-
Section 4.8 Litigation.................................................-15-
Section 4.9 Compliance with Applicable Law.............................-15-
Section 4.10 Vote Required..............................................-15-
Section 4.11 Tax Returns and Audits.....................................-16-
Section 4.12 Material Contracts.........................................-17-
Section 4.13 Real Property and Leases...................................-18-
Section 4.14 Tangible Personal Property.................................-18-
Section 4.15 Environmental and Employee Safety Matters..................-19-
Section 4.16 Intellectual Property......................................-19-
Section 4.17 Insurance Policies.........................................-22-
Section 4.18 Errors and Omissions.......................................-22-
Section 4.19 Brokers' Fees..............................................-22-
Section 4.20 No Misrepresentations......................................-22-
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ARTICLE V
COVENANTS
Section 5.1 Best Efforts; Further Assurances; Cooperation.............-22-
Section 5.2 Notices and Consents......................................-22-
Section 5.3 Operation of Business.....................................-22-
Section 5.4 Full Access...............................................-24-
Section 5.5 Notice of Developments....................................-24-
Section 5.6 Exclusivity...............................................-24-
Section 5.7 Insurance and Indemnification.............................-24-
Section 5.8 Public Announcements......................................-25-
Section 5.9 Expenses..................................................-25-
Section 5.10 Antitrust Challenges......................................-25-
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Obligations of the Buyer....................-25-
Section 6.2 Conditions to Obligations of the Sellers..................-28-
ARTICLE VII
REMEDIES FOR BREACHES OF THIS AGREEMENT
Section 7.1 Survival of Representations, Warranties, and Covenants....-29-
Section 7.2 Indemnification...........................................-29-
Section 7.3 Manner of Indemnification.................................-30-
Section 7.4 Certain Limitations. .....................................-30-
Section 7.5 Notices...................................................-31-
Section 7.6 Expenses..................................................-31-
Section 7.7 Other Remedies............................................-31-
..........................................................................-31-
ARTICLE VIII
ESTABLISHMENT OF ESCROW
Section 8.1 Creation..................................................-31-
Section 8.2 Disbursement for Claims...................................-31-
ARTICLE IX
TERMINATION AND ABANDONMENT
Section 9.1 Termination and Abandonment...............................-32-
Section 9.2 Specific Performance......................................-33-
Section 9.3 Rights and Obligations upon Termination...................-33-
Section 9.4 Expenses..................................................-33-
Section 9.5 Effect of Termination.....................................-34-
ARTICLE X
MISCELLANEOUS
Section 10.1 Extension; Waiver.........................................-35-
Section 10.2 Notices...................................................-35-
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Section 10.3 Table of Contents; Headings...............................-36-
Section 10.4 Severability..............................................-36-
Section 10.5 Waiver....................................................-36-
Section 10.6 No Third Party Beneficiaries; Assignment..................-36-
Section 10.7 Time of the Essence; Computation of Time..................-37-
Section 10.8 Counterparts..............................................-37-
Section 10.9 Governing Law.............................................-37-
Section 10.10 Entire Agreement..........................................-37-
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EXHIBIT A - Ownership of Company Shares
EXHIBIT B - Company Financial Statements
EXHIBIT C - Escrow Agreement
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STOCK PURCHASE AGREEMENT
This is a Stock Purchase Agreement, dated September 17, 1996 (this
"Agreement"), by and between RISCORP, Inc., a Florida corporation (the "Buyer"),
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. (individually, a
"Seller" and collectively, the "Sellers").
BACKGROUND. The Sellers in the aggregate own all of the outstanding
capital stock of Risk Inspection Services and Consulting, Inc. an Alabama
corporation (the "Company"). This Agreement contemplates a transaction in which
the Buyer will purchase from the Sellers and the Sellers will sell to the Buyer
all of the outstanding capital stock of the Company in return for cash.
THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of
Code Sec. 1504(a) or any similar group defined under a similar provision of
state, local, or foreign law.
"Agreement" has the meaning set forth in the preamble above.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could form the basis for
any specified consequence.
"Buyer" has the meaning set forth in the preamble hereof.
"Closing" has the meaning set forth in Section 2.3 below.
"Closing Date" has the meaning set forth in Section 2.3 below.
"Code" has the meaning set forth in the Background section above.
"Company" has the meaning set forth in the preamble above.
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"Company Common Stock" means the Common Stock, par value $1.00 per
share, of the Company.
"Company Financial Statements" has the meaning set forth in Section 5.5
below.
"Company Permits" has the meaning set forth in Section 5.12 below.
"Company Shares" means the shares of stock of the Company that are
owned by the Sellers as set forth in Exhibit "A" attached hereto.
"Competing Transaction" shall mean any of the following involving the
Company: (i) any merger, consolidation, share exchange, business combination, or
other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition of 15% or more of the assets of the Company, taken
as a whole, in a single transaction or series of transactions; (iii) any tender
offer or exchange offer for 15% or more of the outstanding shares of capital
stock of the Company or the filing of a registration statement under the
Securities Act in connection therewith; (iv) any person having acquired
beneficial ownership or the right to acquire beneficial ownership of, or any
"group" (as such term is defined under Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder) having been formed which
beneficially owns or has the right to acquire beneficial ownership of, 15% or
more of the then outstanding shares of capital stock of the Company; or (v) any
public announcement of a proposal, plan or intention to do any of the foregoing
or any agreement to engage in any of the foregoing.
"Confidential Information" means any information concerning the
business and affairs of the Company prior to Closing or the Buyer subsequent to
Closing that is not already generally available to the public.
"Confidentiality Agreement" means that certain letter confidentiality
agreement between the Buyer and the Company dated June 3, 1996.
"Controlled Group of Corporations" has the meaning set forth in Code
Sec. 1563.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement that is an Employee Pension
Benefit Plan, (b) qualified defined contribution retirement plan or arrangement
that is an Employee Pension Benefit Plan, (c) qualified defined benefit
retirement plan or arrangement that is an Employee Pension Benefit Plan
(including any Multiemployer Plan), (d) Employee Welfare Benefit Plan or
material fringe benefit plan or program, or (e) bonus, stock option, severance
or termination pay, stock purchase, stock appreciation right, restricted stock,
phantom stock or other employee benefit plan, program, agreement or arrangement.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA Sec.
3(2).
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"Employee Welfare Benefit Plan" has the meaning set forth in ERISA Sec.
3(l).
"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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Agent" means SouthTrust Bank of Alabama, N.A.
"Escrow Agreement" means the Escrow Agreement in the form attached
hereto as Exhibit C
"Escrow Fund" means $30,000.00 in cash of the Purchase Price that shall
be delivered to Escrow Agent by Buyer.
"Event of Indemnity" has the meaning set forth in Section 7.2 below.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exhibits" means the Exhibits to this Agreement.
"Fiduciary" has the meaning set forth in ERISA Sec. 3(21).
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Governmental Entity" means any court, arbitral tribunal,
administrative agency or commission, or other governmental or other regulatory
authority or agency.
"Hazardous Material" has the meaning set forth in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 USC Section
9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of
1986. The term "Hazardous Material" also means, any material that contains
asbestos, radon, polychlorinated biphenyl, PCB's, methylene
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chloride, trichloroethylene, trans-dichloroethylene, dioxins, dibenzofurans,
urea formaldehyde foam insulation, explosive or radioactive material, or motor
fuel or other petroleum hydrocarbons.
"HSRA" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ AntiTrust-Improvements Act of 1976,
as amended.
"Indemnifying Sellers" has the meaning set forth in Section 7.3 below.
"Indemnity Period" has the meaning set forth in Section 7.4 below.
"Intellectual Property" means (a) 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) trademarks, service marks, trade dress, logos, trade
names, and corporate names, 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) 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) 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) computer software (including data and
related documentation), (g) all other proprietary rights in any of the
foregoing, and (h) all copies and tangible embodiments thereof (in whatever form
or medium).
"Knowledge" means actual knowledge after reasonable investigation.
"Loss" means all claims, judgments, damages, 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, losses, expenses, and fees, including
(without limitation) all attorneys' fees and expenses, court costs, and fees and
expenses of expert witnesses, suffered or incurred by a party to this Agreement
arising from a breach by another party of a representation, warranty, covenant
or agreement set forth in this Agreement.
"Material" and "Material Adverse Effect" means any event, change or
effect on or with respect to an entity (or group of entities taken as a whole)
which is materially adverse to the consolidated condition (financial or
otherwise), properties, assets (including intangible assets), liabilities
(including contingent liabilities), business, results of operations or prospects
of such entity (or, if with respect thereto, of such group of entities taken as
a whole).
"Material Contract" has the meaning set forth in Section 4.12 below.
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"Most Recent Financial Statements" has the meaning set forth in Section
4.3 below.
"Most Recent Fiscal Month End" has the meaning set forth in Section 4.3
below.
"Most Recent Fiscal Year End" has the meaning set forth in Section 4.3
below.
"Multiemployer Plan" has the meaning set forth in ERISA Sec. 3(37).
"Nasdaq" means the Nasdaq Stock Market's National Market.
"Notice of Claim" has the meaning set forth in Section 7.3 below.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a Governmental Entity.
"Prohibited Transaction" has the meaning set forth in ERISA Sec. 406
and Code Sec. 4975.
"Purchase Price" means $600,000.00.
"Reportable Event" has the meaning set forth in ERISA Sec. 4043.
"Schedules" means the schedules to this Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanics, materialmens',
and similar liens arising by operation of law, (b) liens for Taxes not yet due
and payable or for Taxes that the taxpayer is contesting in good faith through
appropriate proceedings, (c) purchase money liens and liens securing rental
payments under capital lease arrangements, and (d) other liens arising in the
Ordinary Course of Business and not incurred in connection with the borrowing
of money.
"Seller(s)" has the meaning set forth in the preamble hereof.
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"Subsidiary" means any corporation or other entity with respect to
which a specified Person (or a Subsidiary thereof) owns a majority of the common
stock or has the power to vote or direct the voting of sufficient securities to
elect a majority of the directors.
"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 Sec. 59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Voting Debt" means any bonds, debentures, notes, or other indebtedness
having the right to vote (or are convertible into securities having the right to
vote).
ARTICLE II
PURCHASE AND SALE OF COMPANY SHARES
SECTION 2.1 BASIC TRANSACTION. On and subject to the terms and
conditions of this Agreement, the Buyer agrees to purchase from each of the
Sellers, and each of the Sellers agrees to sell to the Buyer, all of his or its
Company Shares for the consideration specified below in this Section 2.2.
SECTION 2.2 PURCHASE PRICE. The Buyer agrees to pay to the Sellers at
the Closing $600,000.00 (the "Purchase Price") by delivery of cash in the amount
of the Purchase Price payable by wire transfer or delivery of other immediately
available funds. The Purchase Price shall be allocated among the Sellers in
proportion to their respective holdings of the Company Shares as set forth in
Exhibit A attached hereto.
SECTION 2.3 THE CLOSING. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of Holland &
Knight in Tampa, Florida, commencing at 9:00 a.m. local time on the next
business day following the satisfaction or waiver of all conditions to the
obligations of the parties to consummate the transactions contemplated hereby
(other than conditions with respect to actions the respective parties will take
at the Closing itself) or such other date as the Buyer and the Sellers may
mutually determine (the "Closing Date"); provided, however, that the Closing
Date shall be no earlier than September 17, 1996.
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SECTION 2.4 DELIVERIES AT THE CLOSING. At the Closing, (i) the Sellers
will deliver to the Buyer the various certificates, instruments, and documents
referred to in Section 6.1 below, (ii) the Buyer will deliver to the Sellers the
various certificates, instruments, and documents referred to in Section 6.2
below, (iii) each of the Sellers will deliver to the Buyer stock certificates
representing all of his or Company Shares, endorsed in blank or accompanied by
duly executed assignment documents, and (iv) the Buyer will deliver to each of
the Sellers the consideration specified in Section 2.2 above.
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the
Sellers represents and warrants to the Buyer that the statements contained in
this Section 3.1 are correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3.1) with respect to himself, except as set forth in
Schedule 3.1 attached hereto.
(a) Each Seller has full power and authority to execute and
deliver this Agreement and to perform his or its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the Sellers,
enforceable in accordance with its terms and conditions. No Seller needs to give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(b) Neither the execution and the delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will (i) violate
any constitution, statute, regulation, rule, injunction, judgment, order,
decree, ruling charge, or other restriction of any government, governmental
agency, or court order to which any Seller is subject or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, crate in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license, instrument, or
other arrangement to which any Seller is a party or by which he is bound or to
which any of his assets is subject.
(c) No Seller has any liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Buyer could become liable or
obligated.
(d) Each Seller holds of records and owns beneficially the
number of Company Shares set forth next to his or its name in Exhibit A, free
and clear of any restrictions on transfer (other than any restrictions under the
Securities Act and state securities laws), Taxes, Security Interests, options,
warranties, purchase rights, contracts, commitments, equities, claims, and
demands. No Seller is a party to any option, warranty, purchase right, or other
contract
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or commitment that could require such Seller to sell, transfer, or otherwise
dispose of any capital stock of the Company (other than this Agreement). No
Seller is a party to any voting trust, proxy, or other agreement or
understanding with respect to the voting of any capital stock of the Company.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer
represents and warrants to the Sellers that the statements contained in this
Section 3.2 are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3.2).
(a) The Buyer is a corporation duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its incorporation.
(b) The Buyer has full power and authority (including full corporate
power and authority) to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of the Buyer, enforceable in accordance with its terms and
conditions. The Buyer need not give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this Agreement.
(c) Neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which the Buyer is subject or any provision of its charter or bylaws or
(ii) conflict with, result in a 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 under any agreement, contract, lease,
license, instrument, or other arrangement to which the Buyer is a party or by
which it is bound or to which any of its assets is subject.
(d) The Buyer has no liability or obligation to pay any fees or
commissions to any broker, trader, or agent with respect to the transactions
contemplated by this Agreement for which any Seller could become liable or
obligated.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
The Sellers represent and warrant to the Buyer that the statements
contained in this Article IV are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Article IV).
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SECTION 4.1 ORGANIZATION. The Company is a corporation organized,
validly existing, and in active status under the laws of the jurisdiction of its
incorporation and 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. Schedule 4.1 sets forth for the
Company (a) its name and jurisdiction of incorporation, (b) the number of shares
of authorized capital stock of each class of its capital stock, (c) the number
of issued and outstanding shares of each class of its capital stock, the names
of the holders thereof, and the number of shares held by each such holder, (d)
the number of shares of its capital stock held in treasury, and (e) its
directors and officers. The Company 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 makes
such qualification or licensing necessary, except where the failure to be so
duly qualified or licensed and be in good standing would not have a Material
Adverse Effect on the Company taken as a whole.
SECTION 4.2 CAPITALIZATION. As of the date hereof, the authorized
capital stock of the Company consists solely of 3,000 shares of Company Common
Stock of which, as of the date hereof, 3,000 shares of Company Common Stock are
issued and outstanding. The issued and outstanding shares of Company Common
Stock are registered in the names and in the respective amounts shown on Exhibit
A hereto. All the outstanding shares of Company Common Stock are duly
authorized, validly issued, fully paid and nonassessable and free of any
preemptive or similar rights in respect thereof, and no shares are held in the
treasury of the Company. As of the date hereof, no Voting Debt of the Company is
issued or outstanding. As of the date hereof, there are no existing options,
warrants, puts, calls, subscriptions or other rights or other agreements or
commitments of any character relating to the issued or unissued capital stock or
Voting Debt of the Company, or obligating the Company to issue, transfer, or
sell or cause to be issued, transferred, or sold, any shares of capital stock or
Voting Debt of, or other equity interests in, the Company, or securities
convertible into or exchangeable for such shares or equity interests or
obligating the Company to grant, extend, or enter into any such option, warrant,
call, subscription or other right, agreement or commitment. As of the date
hereof, there are no outstanding contractual obligations of the Company to
repurchase, redeem, or otherwise acquire any shares of capital stock of the
Company. All of the outstanding shares of Company Common Stock were issued
pursuant to available exemptions under federal and state securities laws. The
Company does not have any Subsidiaries or own any shares of stock of any other
corporation.
SECTION 4.3 FINANCIAL STATEMENTS. Attached hereto as Exhibit B are the
following financial statements (collectively the "Company Financial
Statements"): (i) audited consolidated and unaudited consolidating balance
sheets and statements of income, changes in stockholders' equity, and cash flow
as of and for the fiscal year ended December 31, 1995, (the "Most Recent Fiscal
Year End") for the Company; and (ii) unaudited consolidated and consolidating
balance sheets and statements of income, changes in stockholders' equity, and
cash flow (the "Most Recent Financial Statements") as of and for the six months
ended June 30, 1996, and as of the management financial statements dated August
31, 1996 (the "Most Recent Fiscal Month End") for the Company, provided,
however, that the Most Recent Financial Statements are subject to
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normal year end adjustments and lack footnotes and other presentation items. The
Company Financial Statements (including the Notes thereto) have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby, present fairly the financial condition of the Company as of
such dates and the results of operations of the Company for such periods, are
correct and complete, and are consistent with the books and records of the
Company (which books and records are correct and complete). At the Most Recent
Fiscal Month End, Company owned all assets shown on the Most Recent Financial
Statements, subject to no Security Interests, liens, charges, mortgages, or
other encumbrances except as noted therein. To the Knowledge of the Sellers, all
liabilities of the Company are reflected on the books and records of Company.
SECTION 4.4 ABSENCE OF CERTAIN CHANGES. Except as set forth in Schedule
4.4, since the Most Recent Fiscal Year End, no event has occurred which had or
could have a Material Adverse Effect on the Company. Without limiting the
generality of the foregoing, since that date:
(i) the Company has not sold, leased, transferred, or assigned
any of its assets, tangible or intangible, other than for a fair consideration
in the Ordinary Course of Business;
(ii) the Company has not entered into any agreement, contract,
lease, or license (or series of related agreements, contracts, leases, and
licenses) either involving payment by the Company of more than $10,000.00 or
outside the Ordinary Course of Business;
(iii) no party (including the Company) has accelerated,
terminated, modified, or cancelled any agreement, contract, lease, or license
(or series of related agreements, contracts, leases, and licenses) involving
more than $10,000.00, to which the Company is a party or by which any of them is
bound;
(iv) the Company has not imposed or granted any Security Interest
upon any of its assets, tangible or intangible;
(v) the Company has not made any capital expenditure (or series
of related capital expenditures) either involving more than $10,000.00, or
outside the Ordinary Course of Business;
(vi) the Company has not made any capital investment in, any loan
to, or any acquisition of the securities or assets of, any other Person (or
series of related capital investments, loans, and acquisitions) either involving
more than $10,000.00, or outside the Ordinary Course of Business;
(vii) the Company has not issued any note, bond, or other debt
security or created, incurred, assumed, or guaranteed any indebtedness for
borrowed money or
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capitalized lease obligation either involving more than $10,000.00, singly or
$50,000.00, in the aggregate;
(viii) the Company has not delayed or postponed the payment of
accounts payable and other Liabilities outside the Ordinary Course of Business;
(ix) the Company has not cancelled, compromised, waived, or
released any right or claim (or series of related rights and claims) either
involving more than $10,000.00, or outside the Ordinary Course of Business;
(x) the Company has not granted any license or sublicense
of any rights under or with respect to any Intellectual Property;
(xi) there has been no change made or authorized in the
charter or bylaws of the Company;
(xii) the Company 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;
(xiii) the Company has not declared, set aside, or paid any
dividend or made any distribution with respect to its capital stock (whether in
cash or in kind) or redeemed, purchased, or otherwise acquired any of its
capital stock other than dividends paid to policyholders in the Ordinary Course
of Business;
(xiv) the Company has not experienced any damage,
destruction, or loss (whether or not covered by insurance) to its property;
(xv) the Company 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;
(xvi) the Company 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;
(xvii) the Company has not granted any increase in the base
compensation of any of its directors, officers, and employees outside the
Ordinary Course of Business;
(xviii) the Company 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 directors, officers, and
employees (or taken any such action with respect to any other Employee Benefit
Plan);
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(xix) the Company has not made any other change in employment
terms for any of its directors, officers, and employees outside the Ordinary
Course of Business;
(xx) the Company has not made or pledged to make any
charitable or other capital contribution outside the Ordinary Course of
Business;
(xxi) the Company has not received any notice of termination
of any contract, lease or other agreement or suffered any damage, destruction or
loss (whether or not covered by insurance) which, in any case or in the
aggregate, has had a Material Adverse Effect on the assets, operations or
prospects of the Company;
(xxii) the Company has not encountered any labor union
organizing activity, had any actual or threatened employee strikes, work
stoppages, slow-downs or lockouts, or had any material change in its relations
with its employees, agents, customers or suppliers;
(xxiii) the Company has not instituted, settled or agreed to
settle any litigation, action or proceeding before any court or governmental
body relating to the Company or its properties;
(xxiv) the Company has not entered into any transaction,
contract or commitment other than in the Ordinary Course of Business or paid or
agreed to pay any legal, accounting, brokerage, finder's fee, taxes or other
finder's fee, taxes or other expenses in connection with, or incurred any
severance pay obligations by reason of, this Agreement or the transactions
contemplated hereby;
(xxv) there has not been any other occurrence, event,
incident, action, failure to act, or transaction outside the Ordinary Course of
Business involving the Company; and
(xxvi) the Company has not committed to any of the foregoing.
SECTION 4.5 NO UNDISCLOSED LIABILITIES. Except as disclosed in the
Company Financial Statements or in the Schedules to this Agreement, the Company
has no outstanding indebtedness, guaranties, or matter of suretyship, is not a
party to any mortgage, deed of trust, indenture, loan or credit agreement, or
similar instrument or agreement, and is not subject to any claims or
liabilities, accrued, absolute, contingent or otherwise, other than trade or
business obligations incurred in the ordinary course of business since the date
of the Company Financial Statements, in amounts usual and normal both
individually and in the aggregate for its business.
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SECTION 4.6 EMPLOYEE BENEFITS.
(a) Schedule 4.6 lists each Employee Benefit Plan that
the Company maintains or to which the Company contributes.
(i) To the knowledge of the Sellers, each such
Employee Benefit Plan (and each related trust, insurance contract, or fund)
complies in form and in operation in all respects with the applicable
requirements of ERISA, the Code, and other applicable laws.
(ii) All required reports and descriptions
(including Form 5500 Annual Reports, Summary Annual Reports, PBGC-1's, and
Summary Plan Descriptions) have been filed or distributed appropriately with
respect to each such Employee Benefit Plan. The requirements of Part 6 of
Subtitle B of Title I of ERISA and of Code Sec. 4980B have been met with respect
to each such Employee Benefit Plan that is an Employee Welfare Benefit Plan.
(iii) All contributions (including all employer
contributions and employee salary reduction contributions) that are due have
been paid to each such Employee Benefit Plan that is an Employee Pension Benefit
Plan and all contributions for any period ending on or before the Closing Date
that are not yet due have been paid to each such Employee Pension Benefit Plan
or accrued in accordance with the past custom and practice of the Company. All
premiums or other payments for all periods ending on or before the Closing Date
have been paid with respect to each such Employee Benefit Plan that is an
Employee Welfare Benefit Plan.
(iv) Each such Employee Benefit Plan that is an
Employee Pension Benefit Plan meets the requirements of a "qualified plan" under
Code Sec. 401(a) and has received, within the last two years, a favorable
determination letter from the Internal Revenue Service.
(v) The market value of assets under each such
Employee Benefit Plan that is an Employee Pension Benefit Plan equals or exceeds
the present value of all vested and nonvested Liabilities thereunder determined
in accordance with PBGC methods, factors, and assumptions applicable to an
Employee Pension Benefit Plan terminating on the date for determination.
(vi) The Company has delivered to the Buyer
correct and complete copies of the plan documents and summary plan descriptions,
the most recent Form 5500 Annual Report, and all related trust agreements,
insurance contracts, and other funding agreements that implement each such
Employee Benefit Plan.
(vii) There are no pending or, to the knowledge of
the Sellers, threatened or expected claims by or on behalf of any such Employee
Benefit Plan, by any employee or beneficiary covered under any such Employee
Benefit Plan, or otherwise involving any such Employee Benefit Plan (other than
routine claims for benefits).
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(b) To the Knowledge of the Sellers, with respect to each
Employee Benefit Plan that the Company maintains or ever has maintained or to
which any of them contributes, ever has contributed, or ever has been required
to contribute:
(i) No such Employee Benefit Plan that is an
Employee Pension Benefit Plan has been completely or partially terminated or
been the subject of a Reportable Event as to which notices would be required to
be filed with the PBGC. No proceeding by the PBGC to terminate any such Employee
Pension Benefit Plan has been instituted or, to the Knowledge of the Sellers,
threatened.
(ii) There have been no Prohibited Transactions
with respect to any such Employee Benefit Plan. No Fiduciary has any liability
for breach of fiduciary duty or any other failure to act or comply in connection
with the administration or investment of the assets of any such Employee Benefit
Plan. No action, suit, proceeding, hearing, or investigation with respect to the
administration or the investment of the assets of any such Employee Benefit Plan
(other than routine claims for benefits) is pending or, to the Knowledge of the
Sellers threatened. The Sellers do not have any Knowledge of any Basis for any
such action, suit, proceeding, hearing, or investigation.
(iii) The Company has not incurred or has any
reason to expect that the Company shall incur, any Liability to the PBGC (other
than PBGC premium payments) or otherwise under Title IV of ERISA or under the
Code with respect to any such Employee Benefit Plan that is an Employee Pension
Benefit Plan.
(iv) No such Employee Benefit Plan that is an
Employee Pension Benefit Plan has incurred any "accumulated funding deficiency"
(as defined in ERISA Sec. 302 and Code Sec. 412), whether or not waived, as of
the last day of the most recent fiscal year of each such Employee Pension
Benefit Plan ended prior to the Closing Date.
(c) The Company does not contribute to and has never
contributed to, or ever has been required to contribute to any Multiemployer
Plan and does not have liability (including withdrawal Liability) under any
Multiemployer Plan.
(d) The Company does not maintain or contribute, or ever
has maintained or contributed, or ever has been required to contribute to any
Employee Welfare Benefit Plan providing medical, health, or life insurance or
other welfare-type benefits for current or future retired or terminated
employees, their spouses, or their dependents (other than in accordance with
Code Sec. 4980B).
SECTION 4.7 OTHER BENEFIT PLANS. Except as set forth in Schedule 4.7
and except as provided for in this Agreement, as of the date of this Agreement
the Company is not a party to any oral or written (e) consulting agreement not
terminable on 60 days or less notice involving the payment of more than
$10,000.00 per annum, (f) union or collective bargaining agreement, (g)
agreement with any executive officer or other key employee of the Company the
benefits of
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which are contingent, or the terms of which are materially altered, upon the
occurrence of a transaction involving the Company of the nature contemplated by
this Agreement, or agreement with respect to any executive officer of the
Company providing any term of employment or compensation guarantee extending for
a period longer than one year and for the payment of in excess of $10,000.00 per
annum, or (h) agreement or plan, including any stock option plan, stock
appreciation right plan, restricted stock plan, or stock purchase plan, any of
the benefits of which will be increased, or the vesting of the benefits of which
will be accelerated, by the occurrence of any of the transactions contemplated
by this Agreement, or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement.
SECTION 4.8 LITIGATION. Schedule 4.8 sets forth each instance in which
the Company (i) is subject to any outstanding injunction, judgment, order,
decree, ruling, or charge or (ii) is a party or, to the Knowledge of the
Sellers, is threatened to be made a party to any action, suit, proceeding,
hearing, or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator. None of the actions, suits proceedings, hearings, and
investigations set forth in Schedule 4.8 could have a Material Adverse Effect
upon the business, financial condition, operations, results of operations, or
future prospects of the Company. The Sellers do not have any reason to believe
that any other such action, suit, proceeding, hearing, or investigation may be
brought or threatened against the Company.
SECTION 4.9 COMPLIANCE WITH APPLICABLE LAW. To the knowledge of the
Seller's, the Company holds all permits, licenses, variances, exemptions,
orders, and approvals of all Governmental Entities necessary for the lawful
conduct of their respective businesses (the "Company Permits"), except for
failures to hold such permits, licenses, variances, exemptions, orders, and
approvals that would not, individually or in the aggregate, have a Material
Adverse Effect on the Company taken as a whole. To the knowledge of the Sellers,
the Company is in compliance with the terms of the Company Permits, except where
the failure so to comply would not have a Material Adverse Effect on the
Company. To the knowledge of the Sellers, and except as disclosed in Schedule
Section 4.9, the business of the Company is not being conducted in violation of
any law, ordinance, or regulation of any Governmental Entity, except for
possible violations that individually or in the aggregate do not, and, insofar
as reasonably can be foreseen, in the future will not, have a Material Adverse
Effect on the Company. To the knowledge of the Sellers, and except as set forth
in Schedule 4.9, no investigation or review by any Governmental Entity with
respect to the Company is pending or, to the best knowledge of the Sellers,
threatened, nor has any Governmental Entity indicated an intention to conduct
the same, other than, in each case, those the outcome of which, as far as
reasonably can be foreseen, in the future will not have a Material Adverse
Effect on the Company.
SECTION 4.10 VOTE REQUIRED. The affirmative vote of Sellers is the only
vote of the holders of any class or series of the Company's capital stock
necessary to approve this Agreement and the transactions contemplated hereby.
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SECTION 4.11 TAX RETURNS AND AUDITS.
(a) The Company has filed all Tax Returns that it was required
to file. All such Tax Returns were correct and complete in all material respects
(based upon advice from Company's accountants). All Taxes owed by the Company
(whether or not shown on any Tax Return) have been paid. The Company is not
currently 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 the
Company 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 the
Company that arose in connection with any failure (or alleged failure) to pay
any Tax.
(b) The Company has withheld and paid all Taxes required to
have been withheld and paid in connection with amounts paid or owing to any
employee, independent contractor, creditor, stockholder, or other third party.
(c) The Company does not expect any authority to assess any
additional Taxes for any period for which Tax Returns have been filed. There is
no dispute or claim concerning any Tax Liability of the Company either (i)
claimed or raised by any authority in writing or (ii) as to which the Sellers
have Knowledge based upon personal contact with any agent of such authority.
Schedule 4.11 lists all federal, state, local, and foreign income Tax Returns
filed with respect to the Company for taxable periods ended on or after December
31, 1995, indicates those Tax Returns that have been audited, and indicates
those Tax Returns that currently are the subject of audit. The Company has
delivered to the Buyer correct and complete copies of all federal income Tax
Returns, examination reports, and statements of deficiencies assessed against or
agreed to by the Company since December 31, 1995.
(d) The Company 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) The Company has not filed a consent under Code Sec. 341(f)
concerning collapsible corporations. The Company has not made any payments, is
not obligated to make any payments, or is not a party to any agreement that
under certain circumstances could obligate it to make any payments not
deductible under Code Sec. 280G. The Company has not been a United States real
property holding corporation within the meaning of Code Sec. 897(c)(2) during
the applicable period specified in Code Sec. 897(c)(1)(A)(ii). The Company is
not a party to any Tax allocation or sharing agreement. The Company (A) has not
been a member of an Affiliated Group filing a consolidated federal income Tax
Return (other than a group the common parent of which was the Company) or (B)
has any liability for the Taxes of any Person (other than any of the Company)
under United States Treasury Regulation Section 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 the Company (A) did not, as of
December 31, 1995, exceed the reserve for Tax Liability (rather than any reserve
for deferred Taxes established to
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reflect timing differences between book and Tax income) set forth on the face
of the Company's balance sheet as of June 30, 1996 (rather than in any notes
thereto) and (B) 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 the
Company in filing its Tax Returns.
SECTION 4.12 MATERIAL CONTRACTS. Schedule 4.12 lists the following
contracts and other agreements to which the Company is a party (each a "Material
Contract"):
(a) any agreement (or group of related agreements) for the lease
of personal property to or from any Person providing for lease payments in
excess of $10,000.00 per year;
(b) 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 (including
insurance, reinsurance and other risk-sharing agreements), the performance of
which shall extend over a period of more than one year, result in a Material
loss to the Company, or involve consideration in excess of $10,000.00;
(c) any agreement concerning a partnership or joint venture;
(d) 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 $10,000.00 or under
which it has imposed a Security Interest on any of its assets, tangible or
intangible;
(e) any agreement concerning confidentiality or noncompetition;
(f) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance, or other material plan or
arrangement for the benefit of any current or former directors, officers, and
employees;
(g) any collective bargaining agreement;
(h) any agreement for the employment of any individual on a
full-time, part-time, consulting, or other basis providing annual compensation
in excess of $30,000.00 or providing severance benefits;
(i) any agreement under which it has advanced or loaned any amount
to any of its directors, officers, and employees outside the Ordinary Course of
Business;
(j) any agreement under which the consequences of a default or
termination could have a Material Adverse Effect on the Company; or
(k) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of $10,000.00.
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The Company has delivered to the Buyer a correct and complete copy of each
written agreement listed in Schedule 4.12 (as amended to date) and a written
summary setting forth the terms and conditions of each oral agreement referred
to in Schedule 4.12. With respect to each such agreement: (A) the agreement is
legal, valid, binding, enforceable, and in full force and effect; (B) 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 by this Agreement, and no event has occurred that with
notice or lapse of time would constitute a breach or default, or permit
termination, modification, or acceleration, under any such agreement; and (C) no
party has repudiated any provision of any such agreement.
SECTION 4.13 REAL PROPERTY AND LEASES. (a) The Company does not own any
real property. Schedule 4.13 lists all parcels of real property leased by the
Company. To the knowledge of the Sellers, with respect to each parcel of leased
real property, the lease or sublease is legal, valid, binding, and enforceable,
and in full force and effect. All facilities owned or leased have received all
approvals of applicable Governmental Entities (including licenses and permits)
required in connection with the operation thereof.
(b) Company has delivered to Buyer a true and complete copy of
every lease under which Company is a tenant or subtenant (and for each sublease,
true and complete copies of all leases to which the sublease is subject, and
each such Lease is described on Schedule 4.13.
(c) Each lease is in full force and effect and has not been
assigned, modified, supplemented, or amended except as described on Schedule
4.13, and neither Company nor, to the best of Seller's knowledge, the landlord
or sublandlord under any lease is in default under any of the leases, and no
circumstances or state of facts presently exists that, with the giving of notice
or passage of time, or both, would permit the landlord or sublandlord under any
lease to terminate any such lease.
(d) Each lease sets forth the entire agreement between the
landlord or sublandlord and Target, and there are no amendments, oral or
written, except as set forth on Schedule 4.13, and no landlord has the presently
exercisable right to cancel or terminate any lease.
(e) There are no outstanding or unsatisfied obligations of Company
to perform any leasehold improvement or other work or to reimburse or pay for
any such work under any of the leases.
(f) There are no outstanding or unsatisfied obligations of Company
for any leasing commissions under any of the leases.
(g) Company has (without exception) a good, marketable, and
insurable leasehold estate to all Real Property that it leases, free and clear
of all Security Interests.
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SECTION 4.14 TANGIBLE PERSONAL PROPERTY.
(a) Ownership. Except as set forth in the Company Financial
Statements, Company is the sole lawful and beneficial owner of its tangible
personal property, other than tangible personal property that Company has the
right to use in its business pursuant to valid and enforceable contracts, free
and clear of all Security Interests, and it has good and marketable title to all
such property.
(b) Depreciation Schedule. Schedule 4.14 is Company's depreciation
schedule, and such schedule sets forth all material tangible personal property
existing on the date hereof.
(c) No Removal of Property. Company has not removed or permitted
the removal of any tangible personal property from its business premises since
the Most Recent Financial Statement, except in the Ordinary Course of Business.
SECTION 4.15 ENVIRONMENTAL AND EMPLOYEE SAFETY MATTERS.
(a) The Company has complied with all Environmental, Health, and
Safety Laws, and no action, suit, proceedings, 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, the Company 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) The Company does not have any liability (and the Company has
not 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 the Company
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) All properties and equipment used in the business of the
Company have been free of Hazardous Materials.
SECTION 4.16 INTELLECTUAL PROPERTY.
(a) The Company owns or has the right to use pursuant to
license, sublicense, agreement, or permission, all Intellectual Property
necessary for or used in the operation of the business of the Company as
presently conducted and as presently proposed to be conducted. Each item of
Intellectual Property owned or used by the Company immediately prior to the
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Closing Date shall remain owned or available for use by the Company on identical
terms and conditions as of the Closing Date. The Company has taken all necessary
and desirable action to maintain and protect each item of Intellectual Property
that it owns or uses.
(b) The Company has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual Property
rights of third parties, and the Company has never received any charge,
complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation (including any claim that any of
the Company must license or refrain from using any Intellectual Property rights
of any third party). To the Knowledge of the Sellers, no third party has
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of the Company.
(c) Schedule 4.16(a) identifies each trademark, copyright and
patent registration that has been issued to the Company with respect to any of
its Intellectual Property, identifies each pending trademark, copyright or
patent application or application for registration that the Company has made
with respect to any of its Intellectual Property. Schedule 4.16(b) identifies
each trade name, trademark and service ▇▇▇▇ (whether or not registered), used by
the Company. Schedule 4.16(c) identifies each license, agreement, or other
permission that any of the Company has granted to any third party with respect
to any of its Intellectual Property (together with any exceptions). The Company
has delivered to the Buyer correct and complete copies of all such patents,
registrations, applications, licenses, agreements, and permissions (as amended
to date) and has made available to the Buyer correct and complete copies of all
other written documentation evidencing ownership and prosecution (if applicable)
of each such item.
(d) As to each item of Intellectual Property required to be
identified in Schedule 4.16:
(i) the Company possesses all right, title, and interest in
and to the item, free and clear of any Security Interest, or other restriction
other than a license;
(ii) other than those items required to be identified in
Schedule 4.16(c), the Company possesses all right, title, and interest in and to
the item, free and clear of any license;
(iii) the item is not subject to any outstanding injunction,
judgment, order, decree, ruling, or charge;
(iv) no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand is pending or, to the Knowledge of the
Company, is threatened that challenges the legality, validity, enforceability,
use, or ownership of the item; and
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(v) the Company has never agreed to indemnify any Person for
or against any interference, infringement, misappropriation, or other conflict
with respect to the item.
(e) Schedule 4.16(d) identifies each item of Intellectual Property
that any third party owns and that the Company uses pursuant to license,
sublicense, agreement, or permission (other than commercially available software
for personal computers). The Company has delivered to the Buyer 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 4.16;
(i) the license, sublicense, agreement, or permission
covering the item is legal, valid, binding, enforceable, and in full force and
effect;
(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 by this Agreement;
(iii) no party to the license, sublicense, agreement, or
permission is in breach or default, and no event has occurred that with notice
or default or permit termination, modification, or acceleration thereunder;
(iv) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof;
(v) with respect to each sublicense, the
representations and warranties set forth in clauses (i) through (iv) above are
true and correct with respect to the underlying license;
(vi) 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 the Sellers, is threatened that challenges the legality, validity,
or enforceability of the underlying item of Intellectual Property; and
(viii) the Company has not granted any sublicense or
similar right with respect to the license, sublicense, agreement, or permission.
(f) To the Knowledge of the Sellers, the Company 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 its businesses as presently conducted and as presently
proposed to be conducted.
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SECTION 4.17 INSURANCE POLICIES. Schedule 4.17 sets forth a complete
and correct list and summary description of all insurance policies held by the
Company with respect to their respective businesses, and true and complete
copies of such policies have been delivered to the Buyer. The Company has
complied with all the provisions of such policies, and the policies are in full
force and effect.
SECTION 4.18 ERRORS AND OMISSIONS. Except as disclosed on Schedule
4.18, the Company has not incurred any liability or taken or failed to take any
action that will result in a liability (whether reported or unreported, absolute
or contingent, liquidated or unliquidated, due or to become due, or known or
unknown) for errors or omissions in the conduct of the business of the Company,
except such liabilities as are covered by insurance. Of those matters described
on Schedule 4.18, the Company has received no notice of any activity of any kind
with respect to the prosecution of any of such claims for a period of at least
two years prior to and through the date hereof.
SECTION 4.19 BROKERS' FEES. The Company has no liability or obligation
to pay any fees, commissions, or other compensation to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement.
SECTION 4.20 NO MISREPRESENTATIONS. None of the representations and
warranties of the Sellers set forth in this Agreement or in the attached
Exhibits and Schedules, notwithstanding any investigation thereof by the Buyer,
contains or will contain any untrue statement of a material fact, or omits or
will omit the statement of any material fact necessary to render the same not
misleading, either at the date hereof or at the Closing Date.
ARTICLE V
COVENANTS
SECTION 5.1 BEST EFFORTS; FURTHER ASSURANCES; COOPERATION. Subject to
the other provisions in this Agreement, the parties hereto shall each use all
reasonable efforts to perform their respective obligations herein and to take,
or cause to be taken or do, or cause to be done, all things necessary, proper or
advisable under applicable law to satisfy all conditions to the obligations of
the parties under this Agreement and to cause the transactions contemplated by
this Agreement to be carried out promptly in accordance with the terms hereof
and shall cooperate fully with each other and their respective officers,
directors, employees, agents, counsel, accountants and other designees in
connection with any steps required to be taken as part of their respective
obligations under this Agreement.
SECTION 5.2 NOTICES AND CONSENTS. The Sellers will cause the Company
will give any notices to third parties, and will use all reasonable efforts to
obtain any third party consents, that the Buyer may request in connection with
the matters referred to in Section 4.3 above.
SECTION 5.3 OPERATION OF BUSINESS. The Sellers will not cause or permit
the Company to engage in any practice, take any action, or enter into any
transaction outside the Ordinary
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Course of Business. Without limiting the generality of the foregoing, the
Sellers will not cause or permit the Company to, without the written consent of
the Buyer:
(a) authorize or effect any change in its charter or bylaws;
(b) grant any options, warrants, or other rights to purchase or
obtain any of its capital stock or issue, sell, or otherwise dispose of any of
its capital stock;
(c) declare, set aside, or pay any dividend or distribution with
respect to its capital stock (whether in cash or in kind), or redeem,
repurchase, or otherwise acquire any of its capital stock, except that Company
may pay policyholder dividends in the Ordinary Course of Business;
(d) issue any note, bond, or other debt security or create,
incur, assume, or guarantee any indebtedness for borrowed money or capitalized
lease obligation outside the Ordinary Course of Business;
(e) impose any Security Interest upon any of its assets outside
the Ordinary Course of Business;
(f) make any capital investment in, make any loan to, or acquire
the securities or assets of, any other Person outside the Ordinary Course of
Business;
(g) make any change in employment terms for any of its
directors, officers, or employees outside the Ordinary Course of Business;
(h) sell, lease, transfer, or dispose of any of its properties
or assets, waive or release any rights or cancel, compromise, release, or assign
any indebtedness owed to it or any claims held by it, except in the Ordinary
Course of Business but in no event shall any such sale, lease, transfer,
disposition, waiver, release, cancellation, compromise, or assignment exceed
$10,000.00;
(i) fail to perform in all material respects its obligations
under Material Contracts (except those being contested in good faith) or enter
into, assume, or amend any contract or commitment that would be a Material
Contract other than contracts to provide services entered into in the ordinary
and usual course of business;
(j) permit any insurance policy naming it as a beneficiary or a
loss payable payee to be cancelled or terminated or any of the coverage
thereunder to lapse, unless the Company makes reasonable efforts to obtain
simultaneously with such termination or cancellation replacement policies
providing substantially the same coverage on commercially reasonable terms and,
if so available, such policies are in full force and effect;
(k) enter into any union, collective bargaining, or similar
agreement; or
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(1) enter into any agreement to do any of the things described
in clauses (a) through (k) above.
SECTION 5.4 FULL ACCESS. The Sellers will cause the Company to permit
representatives of the Buyer to have full access to all premises, properties,
personnel, books, records (including tax records), contracts, and documents of
or pertaining to the Company. The Buyer will treat and hold as such any
Confidential Information it receives from the Company in the course of the
reviews contemplated by this Section, will not use any of the Confidential
Information except in connection with this Agreement, and, if this Agreement is
terminated for any reason whatsoever, agrees to return to the Company all
tangible embodiments (and all copies) thereof that are in its possession. The
Sellers will cause the Company to request its auditing firm to permit the Buyer
and its representatives, including its auditing firm, to review the work papers
of the auditing firm of the Company relating to their examination of the
Company Financial Statements. No investigation by or on behalf of the Buyer
heretofore or hereafter made shall affect the representations and warranties of
the Sellers.
SECTION 5.5 NOTICE OF DEVELOPMENTS. Each party will give prompt written
notice to the others of any adverse development causing a Material breach of any
of its own representations and warranties in Articles III and IV above. No
disclosure by any party pursuant to this Section, however, shall be deemed to
amend or supplement the Schedules to this Agreement or to prevent or cure any
misrepresentation, breach of warranty, or breach of covenant.
SECTION 5.6 EXCLUSIVITY. From the date hereof until the Closing Date or
until this Agreement. is terminated as provided in Article IX, the Sellers shall
not, directly or indirectly, through any officer, director, agent, stockholder
or otherwise, initiate, solicit or knowingly encourage (including by way of
furnishing non-public information or assistance), or take any other action to
facilitate knowingly, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, directly or indirectly,
any Competing Transaction, or enter into or maintain or continue discussions or
negotiate with any person or entity in furtherance of such inquiries or to
obtain a Competing Transaction, or agree to or endorse any Competing Transaction
or authorize or permit any of the officers, directors or employees of the
Company or any investment banker, financial advisor, attorney, accountant or
other representative retained by the Company or the Sellers to take any such
action, and the Sellers shall notify the Buyer thereof orally (within one
business day) and in writing (as promptly as practicable) of all of the relevant
details relating to all inquiries and proposals which it or any such officer,
director, employee, investment banker, financial advisor, attorney, accountant
or other representative may receive relating to any of such matters and if such
inquiry or proposal is in writing, the Sellers shall deliver to the Buyer a copy
of such inquiry or proposal.
SECTION 5.7 INSURANCE AND INDEMNIFICATION. The Seller will cause the
Company to observe any indemnification provisions now existing in the Articles
of Incorporation or Bylaws of the Company for the benefit of any individual who
served as a director or officer of the Company at any time prior to the Closing
Date.
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SECTION 5.8 PUBLIC ANNOUNCEMENTS. The timing and content of all
announcements regarding any aspect of this Agreement to the financial community,
government agencies, employees or the general public shall be mutually agreed
upon in advance unless the Buyer is advised by counsel that any such
announcement or other disclosure not mutually agreed upon in advance is required
to be made by law or applicable Nasdaq rules.
SECTION 5.9 EXPENSES. Except as otherwise provided in this Agreement,
whether or not the transaction contemplated by this Agreement is consummated,
all costs and expenses (including any brokerage commissions or any finder's or
investment banker's fees and including attorneys' and accountants' fees)
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses, except that the Buyer
and the Sellers shall share equally the costs of any required filings with
federal and state regulatory authorities.
SECTION 5.10 ANTITRUST CHALLENGES. The Sellers and the Buyer have not
made a filing pursuant to the HSRA because the size of the transactions
contemplated by this Agreement is less than $15,000,000.00. In the event a suit
is instituted challenging the transaction contemplated by this Agreement as
violative of the antitrust laws, each of the Buyer and the Sellers will use all
reasonable efforts to defend against such suit. The Buyer and the Sellers will
use all reasonable efforts to take such action as may be required by any federal
or state court of the United States, in any suit brought by a private party or
Governmental Entity challenging the transaction contemplated by this Agreement
as violative of the antitrust laws, in order to avoid the entry of, or to effect
the dissolution of, any injunction, temporary restraining order or other order
which has the effect of preventing the consummation of the transaction
contemplated by this Agreement; however, the Buyer shall not be required to
agree to any divestiture by the Buyer or the Company, of any shares of capital
stock or of any business, properties or assets of the Buyer or the Company, or
to the imposition of any material limitation on the ability of the Buyer to
conduct such business or to own or exercise control of such stock, business,
properties or assets.
ARTICLE VI
CONDITIONS
SECTION 6.1 CONDITIONS TO OBLIGATIONS OF THE BUYER. Consummation of the
transactions contemplated this Agreement is subject to the fulfillment to the
satisfaction of the Buyer, prior to or at the Closing, of each of the following
conditions:
(a) Consents, Authorizations, etc. All consents, authorizations,
orders and approvals of, and filings and registrations with, any Governmental
Entity which are required for or in connection with the execution and delivery
of this Agreement by the Sellers and the consummation by the Sellers of the
transactions contemplated hereby shall have been obtained or made.
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(b) Injunction, etc. The consummation of the transactions
contemplated by this Agreement will not violate the provisions of any
injunction, order, judgment, decree, law or regulation applicable or effective
with respect to the Sellers, the Company, the Buyer, or their respective
officers and directors. No suit or proceeding shall have been instituted by any
person, or, to the knowledge of the Buyer, shall have been threatened by any
Governmental Entity, which seeks (i) to prohibit, restrict or delay consummation
of the transactions contemplated by this Agreement or to limit in any material
respect the right of the Buyer to control any material aspect of the business of
the Buyer or the Company after the Closing Date, or (ii) to subject the Buyer or
the Company or their respective directors or officers to material liability on
the ground that it or they have breached any law or regulation or otherwise
acted improperly in relation to the transactions contemplated by this Agreement;
however, in the case of (ii) above, the Buyer shall have made a good faith
determination that a substantial basis exists which would support a finding of
such liability against the officers and directors of the Company or the Buyer.
(c) Representations and Warranties. The representations and
warranties of the Sellers contained in this Agreement shall have been true and
correct in all respects at the date hereof and shall also be true and correct in
all respects at and as of the Closing Date, except for changes contemplated in
this Agreement, with the same force and effect as if made at and as of the
Closing Date, except in either case as such representations and warranties by
their terms relate only to periods of time prior to the Closing Date, and except
as set forth in the disclosure schedules delivered by the Sellers to the Buyer
pursuant to this Agreement (the "Disclosure Schedule"), and the Sellers shall
have performed or complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by it at
or prior to the Closing Date.
(d) Certificate. The Sellers shall have delivered to the Buyer a
certificate, dated as of the Closing Date, to the effect that (i) they are
familiar with the provisions of this Agreement and (ii) to the best of their
Knowledge the conditions specified in Section 6.1 have been satisfied. Such
certificate shall also specify the number of issued and outstanding shares of
the Company Common Stock and shall certify that to the best of their Knowledge
there has been no violation by the Company of Sections 5.4 or 5.8 hereof.
(e) Opinion and Confirmation of Seller's Counsel. The Buyer shall
have received an opinion or opinions, dated, as of the Closing Date, of
Rushton, Stakely, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Sellers, in form and
substance and with such exceptions and limitations as shall be reasonably
satisfactory to the Buyer, substantially to the effect that:
(i) The Company is a corporation duly incorporated, validly
existing, and in good standing under the laws of the State of Alabama, and has
the corporate power and authority to own its properties and assets and to
conduct its business as it is presently conducted.
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(ii) The authorized capital stock of the Company consists of
3,000 shares of Company Common Stock. As of the date of such opinion, there are
3,000 shares of Company Common Stock issued and outstanding. The issued and
outstanding shares of Company Common Stock are duly authorized, validly issued,
and fully paid and nonassessable, were issued pursuant to available exemptions
under federal and state securities laws, and are held by the Sellers in the
amounts set forth on Exhibit A to this Agreement. To the Knowledge of such
counsel, the Company has no commitments to issue or sell any shares of its
capital stock or any securities or obligations convertible into or exchangeable
for, or giving any person any right to subscribe for or acquire from the
Company, any shares of its capital stock, and no securities or obligations
evidencing any such rights are outstanding.
(iii) Each Seller has the power and authority to execute and
deliver this Agreement and the Escrow Agreement to be executed by them, and to
consummate the transactions contemplated hereby and thereby. This Agreement and
the Escrow Agreement have been duly executed and delivered by the Sellers and
are valid and binding agreements of the Sellers, enforceable in accordance with
their respective terms, subject to: (i) bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights generally; and
(ii) general principles of equity, regardless of whether enforceability is
considered in a proceeding in equity or at law.
(iv) Neither the execution or delivery by the Sellers of
this Agreement nor the performance of its obligations hereunder will (with the
passage of time or the giving of notice or both): (i) constitute a violation of,
constitute a default or require any payment under, permit a termination of, or
result in the creation or imposition of any security interest, lien or other
encumbrance or adverse claim against, or upon any of the property of, the
Company under (I) any term or provision of the Articles of Incorporation or
Bylaws of the Company, (II) any Material Contract, (III) any permit, judgment,
decree or order of any Governmental Entity that is applicable to the business of
the Company or that is known to such counsel or (IV) any applicable law that in
the experience of such counsel is normally applicable to transactions of the
kind contemplated by this Agreement; or (ii) create or cause the acceleration of
the maturity of, any indebtedness, obligation, or liability of the Company that
is listed on Schedule 4.14 or that is known to such counsel.
(v) Each consent, authorization, order and approval of, and
filing and registration with, any Governmental Entity required to be made or
obtained by the Company for the execution and delivery of this Agreement and the
other documents and agreements contemplated hereby and the consummation of the
transactions contemplated by this Agreement have been made or obtained.
(f) Certain Antitrust Matters. No proceeding shall be pending or
threatened with respect to the transactions hereunder and no order, decree or
judgment shall have been entered or issued, which, in any such case, would
require any divestiture by the Buyer or the Company of any shares of capital
stock or of any business, properties or assets of the Buyer or
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the Company, or the imposition of any material limitation on the ability of the
Buyer to conduct its business or to own or exercise control of such stock,
business, properties or assets.
(g) Due Diligence Review. The Buyer shall be fully satisfied in its
sole discretion with the results of its review of, and its other due diligence
investigations with respect to, the business, operations, affairs, prospects,
properties, assets, existing and potential liabilities, obligations, and
condition (financial or otherwise) of the Company.
(h) Estoppel Certificates. Seller shall deliver to Buyer an estoppel
certificate of each lessor under each lease of Real Property in form and
substance satisfactory to Buyer which describes in the property leased, the
monthly or annual rental, the remaining term of the lease, certifying that there
is not a default under the lease, and confirming that the lease will continue in
full force and effect after the Closing.
(i) 401(k) Plan. Company shall have terminated its existing 401(k)
benefit plan.
(j) Company Shares. Each Seller shall deliver to Buyer stock
certificates representing all of its Company Shares, endorsed in blank or
accompanied by duly executed assignment documents.
(k) Additional Certificates, etc. The Sellers shall have furnished to
the Buyer such additional certificates, opinions, and other documents as the
Buyer may have reasonably requested as to any of the conditions set forth in
Section 6.1.
SECTION 6.2 CONDITIONS TO OBLIGATIONS OF THE SELLERS. Consummation of
the transactions contemplated by this Agreement is subject to the fulfillment to
the satisfaction of the Buyer, prior to or at the Closing Date, of each of the
following conditions:
(a) Consents, Authorizations, etc. All consents, authorizations,
orders and approvals of, and filings and registrations with, any Governmental
Entity, which are required for or in connection with the execution and delivery
of this Agreement by the Buyer and the consummation by the Buyer of the
transactions contemplated hereby shall have been obtained or made.
(b) Injunction, etc. The consummation of the transactions contemplated
hereby will not violate the provisions of any injunction, order, judgment,
decree, law, or regulation applicable or effective with respect to the Company
or its officers or directors.
(c) Representations and Warranties. The representations and warranties
of the Buyer contained in this Agreement shall have been true and correct in
all respects at the date hereof and shall also be true and correct in all
respects at and as of the Closing Date, except for changes contemplated in
this Agreement, with the same force and effect as if made at and as of the
Closing Date or except as such representations and warranties by their terms
relate only to
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periods of time prior to the Closing Date or except where the failure of any
representation or warranty to be correct would not have a Material Adverse
Effect on the ability of the Buyer to consummate the transaction contemplated
hereby or would not have a Material Adverse Effect on the Buyer, and the Buyer
shall have performed or complied in all material respects with all agreements
and covenants required by this Agreement to be performed or complied with by it
at or prior to the Closing Date.
(d) Certificate. The Buyer shall have delivered to the Sellers a
certificate, dated as of the Closing Date, of the Chief Executive Officer or a
senior executive officer of the Buyer to the effect that (i) he is familiar with
the provisions of this Agreement and (ii) to the best of his Knowledge the
conditions specified in Section 6.2 have been satisfied.
(e) Purchase Price. The Buyer shall pay the Purchase Price to the
Sellers less the amount that is being deposited in the Escrow fund.
(e) Additional Certificates, etc. The Buyer shall have furnished
to the Sellers such additional certificates, opinions, and other documents as
the Sellers may have reasonably requested as to any of the conditions set forth
in Section 6.2.
ARTICLE VII
REMEDIES FOR BREACHES OF THIS AGREEMENT
SECTION 7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS. The
representations, warranties, covenants, indemnification provisions, and
agreements of the Parties made or set forth in this Agreement (including the
Exhibits and Schedules hereto), as the same may be modified in any certificate
delivered by the Sellers or any of them at Closing and approved by the Buyer or
in any certificate or document delivered pursuant hereto, shall survive the
execution and delivery of this Agreement, the Closing Date, the consummation of
the transactions contemplated hereby, and any investigation made by the parties
and shall continue in full force and effect thereafter for the period provided
in this Article VII.
SECTION 7.2 INDEMNIFICATION.
(a) Subject to Section 7.4 the Sellers shall, jointly and
severally, indemnify and hold harmless the Buyer from and against any Loss that
the Buyer, or its successors and assigns, for any cause at any time may sustain
or incur as a result of any misrepresentation or breach of any warranty,
covenant, agreement or obligation made by the Sellers under this Agreement, any
Ancillary Agreement, or in any Schedule, Exhibit, certificate or other
instrument pursuant hereto, or for any and all tax liability that is assessed
against the Company with respect to any matter that arises prior to the Closing
Date (in each case, an "Event of Indemnity").
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(b) Buyer agrees that it will not seek indemnification against
Sellers pursuant to this Agreement until the aggregate amount of Losses suffered
by Buyer exceeds $10,000.00.
SECTION 7.3 MANNER OF INDEMNIFICATION. Upon the occurrence of an Event
of Indemnity, the Buyer may, at or at any time after such occurrence, notify the
Seller(s) from whom indemnification is sought (the "Indemnifying Sellers") and
Escrow Agent thereof, stating specifically the obligation(s) with respect to
which the claim is made, the facts giving rise to and alleged basis for such
claim, and the amount of the Loss incurred or that may be incurred by reason
thereof (a "Notice of Claim"). If the Buyer makes a demand for indemnification
with respect to an Event of Indemnity for which more than one Indemnifying
Seller would be liable under this Agreement, it shall make such demand against
the Indemnifying Sellers that would be liable for said Event of Indemnity.
Within 30 days after the mailing of such notice, the Indemnifying Sellers shall,
subject to Section 7.4, either (a) notify the Buyer and Escrow Agent that they
accept the amount of such indemnification claim as set forth in the Notice of
Claim, in whole or in part, and instruct the Escrow Agent to charge such
accepted amount against the Sellers pro rata under the Escrow Agreement, or (b)
deny or dispute the alleged occurrence of such Event of Indemnity as asserted in
the Notice of Claim by the Buyer. If such Event of Indemnity relates to a claim
by a person or persons other than the Buyer, and the amount of such claim is
fully covered by the foregoing indemnity, as limited by Section 7.4 hereof, the
Indemnifying Sellers or any of them may elect, within said 30-day period, to
defend against such claim at their expense, in lieu of the Buyer assuming such
defense. If the Indemnifying Sellers or any of them elect to assume such
defense, they shall retain counsel reasonably satisfactory to the Buyer. If the
Loss incurred relates to the failure of a Seller to collect any note or account
receivable and if any Indemnifying Sellers pay in full the unpaid balance
thereof to the Buyer, the Buyer will cause the Company to assign said note or
account without recourse to the Sellers paying same.
If within said 30-day period, none of the Indemnifying Sellers has,
with respect to an Event of Indemnity, taken the action required to be taken
within said period, the amount set forth in Buyer's Notice of Claim with respect
to such Event of Indemnity shall be deemed to be charged against the Sellers as
Settled Losses of the Buyer pro rata under the Escrow Agreement.
SECTION 7.4 CERTAIN LIMITATIONS. Except in the case of fraud or willful
concealment, the liability of the Sellers hereunder shall be limited as follows:
(a) All liability of the Sellers under this Article VII shall
cease three years after the Closing Date. However, the liabilities of the
Sellers hereunder shall continue indefinitely with respect to the occurrence of
Events of Indemnity with respect which the Buyer shall have mailed notice prior
to the expiration of the Indemnity Period or with respect to which there has
been any willful concealment by the Sellers, or either of them, either before or
after the date hereof.
(b) The liability of any particular Seller with respect to any
Loss shall be limited to such Seller's pro rata share of the Purchase Price.
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SECTION 7.5 NOTICES. The Buyer will endeavor to notify the Sellers and
the Escrow Agent promptly upon the receipt by a responsible officer of the Buyer
of knowledge of a state of facts that if not corrected, would in its judgment
constitute an Event of Indemnity hereunder. However, in no event shall the
Buyer's failure to notify the Sellers under this Section 7.5 bar its right to
indemnity pursuant to Section 7.2.
SECTION 7.6 EXPENSES. Any expenses in connection with a claim of Loss
hereunder, including without limitation, investigation or audit expenses,
attorneys' fees, or court costs, shall be borne by the prevailing party in any
dispute; however, upon assumption of the defense of a claim hereunder and the
admission by the assuming Seller of liability (subject to Section 7.4) for the
Loss, a Seller will not be liable to the Buyer for any legal or other costs and
expenses subsequently incurred by the Buyer in connection with the defense.
SECTION 7.7 OTHER REMEDIES. Except for non-monetary equitable relief,
from and after the Closing, the rights set forth in this Article VII shall be
the Buyer's sole and exclusive remedy against the Sellers for any
misrepresentations and any and all breaches of the warranties, covenants,
agreements and obligations contained in or arising out of Article IV of this
Agreement. Nothing herein shall prevent the Buyer from asserting or recovering
upon a claim based upon allegations of fraud or other willful breach of an
obligation of or with respect to the Sellers in connection with this Agreement
or for breach of any of the covenants that by their terms continue in effect
after the Closing Date. In the event that any such claim for fraud or willful
breach is asserted, the prevailing party's attorneys fees and costs shall be
paid by the non-prevailing party.
ARTICLE VIII
ESTABLISHMENT OF ESCROW
SECTION 8.1 CREATION. The Escrow Fund, shall be delivered by the Buyer
to the Escrow Agent. The fees payable to the Escrow Agent for maintaining the
Escrow Fund shall be paid by the Buyer. The Escrow Fund shall be maintained by
the Escrow Agent for a period beginning at the Closing Date and ending two
years thereafter, and shall be available to satisfy the indemnification rights
of the Buyer forth in Article VII, pursuant to the terms of the Escrow
Agreement.
SECTION 8.2 DISBURSEMENT FOR CLAIMS. Disbursements from the Escrow Fund
shall be made at the expiration of the Escrow Agreement, subject to the
retention of all or any part of the Escrow Fund as to which claims have not been
settled, all in accordance with the terms of the Escrow Agreement.
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ARTICLE AX
TERMINATION AND ABANDONMENT
SECTION 9.1 TERMINATION AND ABANDONMENT. This Agreement may be
terminated and abandoned at any time prior to the Closing Date:
(a) By mutual action of the Board of Directors of the Buyer and
the Sellers.
(b) By the Buyer:
(i) if any event shall have occurred as a result of which
any condition set forth in Section 6.1 is no longer capable of being satisfied;
or
(ii) if there has been a breach by the Sellers of any
representation or warranty contained in this Agreement that would have or would
be reasonably likely to have a Material Adverse Effect on the Company or the
Sellers, or there has been a Material breach of any of the covenants or
agreements set forth in this Agreement on the part of the Sellers, which breach
is not curable, or, if curable, is not cured within 30 days after written notice
of such breach is given by the Buyer to the Sellers.
(c) By the Buyer if
(i) The Company (or its Board of Directors) or the Sellers
shall have authorized, recommended, proposed or publicly announced its intention
to enter into a Competing Transaction which has not been consented to in writing
by the Buyer;
(ii) Any person, entity or "group" (as that term is used in
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder) (other than the Buyer or any of its affiliates) shall have (A)
commenced or publicly proposed to commence a tender offer or exchange offer for
at least 15 percent of the then total outstanding Company Common Stock, (B)
acquired more than 15 percent of the then total outstanding Company Common
Stock, or (C) solicited and received proxies or consents sufficient to permit it
to elect directors nominated by it to a majority of the members of the Company's
Board of Directors or to block approval of the transactions contemplated by this
Agreement by the Sellers.
(d) By the Sellers:
(i) if any event shall have occurred as a result of which
any condition set forth in Section 6.2 is no longer capable of being satisfied.
(ii) if there has been a breach by the Buyer of any
representation or warranty contained in this Agreement which would have or would
be reasonably likely to have a Material Adverse Effect on the ability of the
Buyer to consummate the transactions contemplated hereby, or there has been a
Material breach of any of the covenants or agreements
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set forth in this Agreement on the part of the Buyer, which breach is not
curable or, if curable, is not cured within 30 days after written notice of such
breach is given by the Sellers to the Buyer.
(e) By the Buyer or the Sellers if there shall have occurred (i)
any general suspension of, or limitation on, trading in securities generally on
Nasdaq continuing for a period of 15 days, or (h) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States continuing for a period of 15 days.
(f) By either the Buyer or the Sellers if the transactions
contemplated hereby shall not have been consummated by November 1, 1996;
however, the terminating party shall not have breached in any material respect
its obligations under this Agreement in any manner which proximately contributed
to the failure of any such condition to be satisfied or the failure to
consummate the transactions contemplated hereby.
SECTION 9.2 SPECIFIC PERFORMANCE. The parties acknowledge that the
rights of each party to consummate the transactions contemplated hereby are
special, unique, and of extraordinary character, and that, in the event that any
party violates or fails and refuses to perform any covenant made by it herein,
the other parties will be without adequate remedy at law. Each party agrees,
therefore, that, in the event that it violates or fails and refuses to perform
any covenant made by it herein, the other parties so long as it or they are not
in breach hereof, may, in addition to any remedies at law, institute and
prosecute an action in a court of competent jurisdiction to enforce specific
performance of such covenant or seek any other equitable relief.
SECTION 9.3 RIGHTS AND OBLIGATIONS UPON TERMINATION. If this Agreement
is terminated and abandoned as provided herein, each party will redeliver all
documents, work papers, and other materials of any party relating to the
transactions contemplated hereby, whether obtained before or after the execution
hereof, to the party furnishing the same, except to the extent previously
delivered to third parties in connection with the transactions contemplated
hereby, and all information received by any party hereto with respect to the
business of any other party shall not at any time be used for the advantage of,
or disclosed to third parties by, such party to the detriment of the party
furnishing such information; however, this Section 9.3 shall not apply to any
documents, work papers, material, or information which is a matter of public
knowledge or which heretofore has been or hereafter is published in any
publication for public distribution or filed as public information with any
Governmental Entity. The Buyer shall continue to be bound by the provisions of
the Confidentiality Agreement following termination of this Agreement.
SECTION 9.4 EXPENSES. The Sellers and the Buyer each acknowledge that
the other spent, and will be required to spend, substantial time and effort in
examining the business, properties, affairs, financial condition and prospects
of the other and their respective Subsidiaries, and has incurred, and will
continue to incur, substantial fees and expenses in connection with such
examination, the preparation and negotiation of this Agreement and the
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accomplishment of the transactions contemplated hereunder, and will be unable to
evaluate similar transactions with other parties due to the limited number of
personnel available for such purpose and the constraints of time. Therefore, the
Sellers and the Buyer agree as follows:
(a) Expenses. If the Buyer terminates this Agreement pursuant to
Section 9.1(b) by reason of the failure to meet the condition of Section 6.1
due to the Seller's knowing and intentional or grossly negligent
misrepresentation or knowing and intentional or grossly negligent breach of
warranty or breach of any covenant or agreement, or pursuant to Section 9.1(c),
then the Sellers shall pay the Expenses to the Buyer on demand, in same day
funds. If the Sellers terminates this Agreement pursuant to Section 9.1(d) by
reason of the failure to meet the condition of Section 6.2 due to the Buyer's
knowing and intentional or grossly negligent misrepresentation or knowing and
intentional or grossly negligent breach of warranty or breach of any covenant or
agreement, then the Buyer shall pay the Expenses to the Sellers on demand, in
same day funds. For purposes of this Section 9.4, "Expenses" shall include all
reasonable out-of-pocket expenses and fees (including, without limitation, fees
and expenses payable to all investment banking firms and their respective agents
and counsel, and all fees of counsel, accountants, experts and consultants to
the Buyer and the Sellers, respectively) actually incurred by the Buyer or the
Sellers or on their behalf in connection with the transactions contemplated by
this Agreement.
(b) Payment. Any payment required pursuant to this Section 9.4
shall be made as promptly as practicable, but in no event later than five
business days after termination of this Agreement and shall be made by wire
transfer of immediately available funds to an account designated by the Buyer.
If either party is entitled to the Expenses, the other party shall also pay to
the other interest at the rate of 8 1/2% per year on any amounts that are not
paid when due, plus all costs and expenses in connection with or arising out of
the enforcement of the obligation to pay the Expenses or such interest.
(c) Effect of Payment. Except as provided in Section 9.5, upon
payment of the Expenses this Agreement shall terminate with no further liability
of the Sellers or the Buyer at law or equity resulting therefrom.
SECTION 9.5 EFFECT OF TERMINATION. In the event of a termination and
abandonment of this Agreement pursuant to Section 9.1 above, this Agreement
shall forthwith become void and have no further effect, without any liability on
the part of any party hereto or its respective officers, directors or
stockholders, other than the provisions of Section 5.9, 5.10, 5.11, 9.3, 9.4 and
this Section 9.5. Notwithstanding the foregoing, nothing contained in this
Section 9.5 shall relieve any party from liability for any breach of this
Agreement, and any such termination shall be without prejudice to the rights of
any party hereto arising out of the willful breach by any other party of any
covenant or agreement contained in this Agreement.
ARTICLE X
MISCELLANEOUS
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SECTION 10.1 EXTENSION; WAIVER. At any time prior to the Closing Date,
the Buyer and the Sellers may, to the extent legally allowed, (i) extend the
time for the performance of any of the obligations or other acts of the other,
(ii) waive any inaccuracies in the representations and warranties of the other
contained herein or in any document delivered pursuant hereto by the other, and
(iii) waive compliance with any of the agreements by the other or conditions to
such party's obligations contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party.
SECTION 10.2 NOTICES. Every notice, consent, demand, approval, and
request required or permitted by this Agreement will be valid only if it is in
writing, delivered personally or by telecopy, commercial courier, or first
class, postage prepaid certified United States mail, and addressed by the sender
to the party who is the intended recipient at its address set forth below or to
the address most recently designated to the other party by notice given in
accordance with this Section. A validly given notice, consent, demand, approval,
or request will be effective on the earlier of its receipt, if delivered
personally, by telecopy, or by commercial courier, or the third day after it is
postmarked by the United States Postal Service, if it is delivered by United
States mail.
(a) If to the Buyer, to
RISCORP, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Holland & Knight
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Sellers, to each of:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
---------------------
Telecopy No.:
------------------
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with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Rushton, Stakely, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with an additional copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
400 Land Title Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 10.3 TABLE OF CONTENTS; HEADINGS. The Table of Contents and
headings contained herein are for convenience of reference only, do not
constitute a part of this Agreement, and shall not be deemed to limit or affect
any of the provisions hereof.
SECTION 10.4 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon any such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
will negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated by this Agreement are consummated to
the extent possible.
SECTION 10.5 WAIVER. The failure of any party hereto at any time or
times to require performance of any provision hereof shall in no manner affect
the right to enforce the same. No waiver by any party of any condition, or the
breach of any term, provision, warranty, representation, agreement or covenant
contained in this Agreement or the other agreements contemplated hereby, whether
by conduct or otherwise, in any one or more instances shall be deemed or
construed as a further or continuing waiver of any such condition or breach or a
waiver of any other condition or of the breach of any other term, provision,
warranty, representation, agreement or covenant herein or therein contained.
SECTION 10.6 NO THIRD PARTY BENEFICIARIES; ASSIGNMENT. This Agreement
shall inure to the benefit of the parties and their respective successors and
permitted assignees. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights in any
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person or entity, including, without limitation, employees not a party to this
Agreement. Except for assignments to wholly-owned Subsidiaries (direct or
indirect) of the Buyer, in which event the Buyer shall remain liable for the
performance of this Agreement, no transfer or assignment (including by operation
of law) of this Agreement or of any rights or obligations under this Agreement
may be made by any party without the prior written consent of the other parties
and any attempted transfer or assignment without that required consent shall be
void. No transfer or assignment by a party of its rights under this Agreement
shall relieve it of any of its obligations to the other parties under this
Agreement.
SECTION 10.7 TIME OF THE ESSENCE; COMPUTATION OF TIME. Time is of the
essence of each and every provision of this Agreement. Whenever the last day for
the exercise of any right or the discharge of any duty under this Agreement
shall fall upon Saturday, Sunday or a public or legal holiday, the party having
such right or duty shall have until 5:00 p.m. Eastern time on the next
succeeding regular business day to exercise such right or to discharge such
duty.
SECTION 10.8 COUNTERPARTS. This Agreement may be executed by each party
upon a separate copy, and in such case one counterpart of this Agreement shall
consist of enough of such copies to reflect the signatures of all of the
parties. This Agreement may be executed in two or more counterparts, each of
which shall be an original, and each of which shall constitute one and the same
agreement. Any party may deliver an executed copy of this Agreement and of any
documents contemplated hereby by facsimile transmission to another party and
such delivery shall have the same force and effect as any other delivery of a
manually signed copy of this Agreement or of such other documents.
SECTION 10.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without giving
effect to the conflicts of law principles thereof.
SECTION 10.10 ENTIRE AGREEMENT. This Agreement (with its Exhibits and
Schedules) contains, and is intended as, a complete statement of all the terms
of the arrangements among the parties with respect to the matters provided for,
supersedes any previous agreements and understandings between the parties with
respect to those matters and cannot be changed or terminated orally.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed as of the date first written above.
RISCORP, INC.
By: /s/
---------------------------------
Title: Senior Vice President
------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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