EXHIBIT 10.2
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT ("Agreement") is made and entered into as of the
31st day of December, 2003, between InterContinental Life Corporation, a
Delaware business corporation ("ILCO") and ▇▇▇▇▇▇ ▇. ▇▇▇▇, III, an individual
and a resident of the State of Texas ("BUYER").
W I T N E S S E T H:
WHEREAS, ILCO owns all of the issued and outstanding shares of capital
stock of Actuarial Risk Consultants, Inc. ("ARC"); and
WHEREAS, ILCO deems it advisable and in the best interests of ILCO that
BUYER acquire all the issued and outstanding capital stock of ARC, all on the
terms and subject to the conditions contained in this Agreement.
NOW, THEREFORE, ILCO and BUYER, in consideration of the agreements and
conditions contained herein, hereby agree as follows:
ARTICLE I
PURCHASE
1.01 Purchase of ARC Common Stock. Subject to the terms and conditions of
this Agreement, and in reliance on the agreements of the parties contained
herein, at the Closing (as hereinafter defined), ILCO agrees to sell, assign,
transfer and deliver to BUYER, and BUYER agrees to purchase and acquire from
ILCO, all of the issued and outstanding shares of ARC's common stock (the
"Shares"), and upon completion of the Closing, BUYER shall own the Shares. The
authorized capital stock of ARC consists of 1,000 shares of common stock, $0.01
par value per share, of which 1,000 shares are issued and outstanding, and all
of which are owned of record and beneficially by ILCO.
1.02 Purchase Price. The Purchase Price is $10,000. On the Closing Date (as
hereinafter defined) and subject to the terms and conditions set forth in this
Agreement and in consideration of the sale, assignment, transfer and delivery of
the Shares, BUYER agrees to pay the Purchase Price to ILCO in connection with
the purchase.
1.03 Closing. (a) The closing of the sale and purchase of the Shares
contemplated by this Agreement (the "Closing") shall take place at the offices
of ILCO in Austin, Texas, at 10:00 a.m. local-time, on December 31, 2003, or
such other date as ILCO and BUYER may mutually agree upon in writing (the
"Closing Date").
-1-
(b) At the Closing, ILCO shall deliver or cause to be delivered to BUYER
(i) stock certificates evidencing all Shares duly endorsed in blank or
accompanied by stock powers duly executed in blank, free of all encumbrances,
other than restrictions imposed by the United States federal or state securities
laws, (ii) a ▇▇▇▇ of sale (the "▇▇▇▇ of Sale") in the form of Exhibit 1.03
pursuant to which the tangible and intangible assets set forth on Exhibit A to
the ▇▇▇▇ of Sale owned, leased, licensed or otherwise held by ILCO are assigned
to ARC, free and clear of all Encumbrances, except for Permitted Encumbrances
and the Encumbrances disclosed on Exhibit A to the ▇▇▇▇ of Sale; and (iii) such
other documents required to be delivered by ILCO to BUYER at or prior to the
Closing Date in connection with the transactions contemplated hereby. As used
herein, "Permitted Encumbrances" means (a) Encumbrances for taxes and other
governmental charges and assessments which are not yet due and payable, (b)
Encumbrances of landlords and liens of carriers, warehousemen, mechanics and
materialmen and other like Encumbrances arising in the ordinary course of
business for sums not yet due and payable and (c) other Encumbrances or
imperfections on property which are not material in amount or do not materially
detract from the value of or materially impair the existing use of the property
affected by such Encumbrance or imperfection.
(c) At the Closing, BUYER shall pay the Purchase Price by certified check
payable to ILCO.
ARTICLE II
AGREEMENTS OF THE PARTIES
2.01 No Representations or Warranties. Neither ILCO nor ARC makes any
representations or warranties to BUYER with respect to ARC or the Shares being
purchased by BUYER pursuant to this Agreement.
2.02 Acknowledgments of BUYER. BUYER acknowledges that:
(i) BUYER is knowledgeable, sophisticated and experienced in business
and financial matters of the type contemplated by this Agreement, is able
to evaluate the risks and merits of an investment in the Shares and is
financially able to bear the risks thereof;
(ii) The offering of the Shares to BUYER was made only through direct,
personal communication between the parties and not through any public
solicitation or advertising;
(iii) The Shares have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), or the securities or "blue sky"
laws of any state or other domestic or foreign jurisdiction; the Shares may
not be sold, transferred or otherwise disposed of except pursuant to an
effective registration statement thereunder or an applicable exemption
therefrom; (iii) the certificates evidencing the Shares shall contain a
legend or legends indicating applicable transfer restrictions;
-2-
(iv) Buyer is acquiring the Shares for investment, and not with a view
towards their public offering or distribution. Buyer understands that it must
bear the economic risk of such investment indefinitely unless the Shares are
registered pursuant to the Securities Act, or an exemption from such
registration is available, and that Seller is not aware of any present
intentions of the Companies to register the Shares. Buyer further understands
that there is no assurance that an exemption from the Securities Act will be
available or, if available, that such exemption will allow the Buyer to dispose
of or otherwise transfer any or all of the Shares under the circumstances, in
the amounts or at the times the Buyer might propose.
2.03 Intercompany Liabilities.
As of the date of this Agreement, the amount of intercompany liabilities of
ARC to Investors Life Insurance Company of North America ("Investors-NA"), an
affiliate of ILCO, are $97,981.43. Immediately prior to the Closing Date, ILCO
will cause ARC to pay to Investors-NA the amount of such intercompany
liabilities then outstanding.
2.04 Employee Benefit Plans.
(a) Exhibit 2.04 lists of all Benefit Plans sponsored by ILCO which
currently cover any employees of ARC. For purposes of this Agreement, "Benefit
Plan" means any pension, profit- sharing, deferred compensation, retirement,
medical, insurance or other plan or arrangement providing benefits to any
Employee, including without limitation any employee benefit plan within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended.
(b) ARC does not independently maintain any Benefit Plan. The employees of
ARC participate only in Benefit Plans sponsored by ILCO.
( c ) As of the Closing Date, the participation by employees of ARC in each
such Benefit Plan shall terminate. ILCO shall cause employees of ARC to receive
such notices as may
be required under COBRA rules and regulations.
2.05 Insurance. ARC participates as an additional insured in certain
liability, property, workers' compensation, conduct of business, malpractice and
other similar insurance maintained by ILCO. As of the Closing Date, ILCO will
cause ARC's participation under such insurance coverage to terminate.
2.06 Lease. ARC is a party to a lease agreement dated February 10, 2003,as
amended as of June 1, 2003, between ARC and Investors Life Insurance Company of
North America, a subsidiary of ILCO, pertaining to space in Building II located
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇ the "Lease Agreement"). At the Closing
the Lease Agreement will be cancelled, effective as of March 31, 2004. In
consideration of the ILCO's consent to the continuation of the Lease Agreement
beyond the Closing, BUYER agrees to pay, or cause the payment of, the payment
obligations of ARC under the Lease Agreement, for the period from the Closing
Date to March 31, 2004.
-3-
2.07 Facilities. For the period beginning on the Closing Date and ending on
March 31, 2004, BUYER will be permitted to continue to occupy the space which is
leased to ARC pursuant to the Lease Agreement described in Section 2.06, hereof.
As of the Closing Date, all written and other arrangements between or among ARC,
on the one hand, and ILCO or any affiliate of ILCO on the other hand, under
which ILCO, or any of its affiliates, provided any services or facilities to ARC
prior to the Closing Date (other than those services or facilities provided in
accordance with the Lease Agreement described in Section 2.06 hereof) or which
ARC provided any services or facilities to the Seller or any of its affiliates
prior to the Closing Date, will terminate.
2.8 Data Processing Transition. For a transition period of thirty (30) days
following the Closing Date, ILCO will assist BUYER in obtaining a copy of data
pertaining to the business and operations of ARC which is stored on hardware or
network equipment owned by ILCO or its affiliates, it being understood by the
parties that such hardware or network equipment are not included in the
equipment to be transferred to BUYER pursuant to this Agreement.
2. 9 Tax Matters.
(a) ILCO shall prepare and file (or cause to be prepared and filed) all
returns of and forms required to be filed with respect to ARC for any taxable
period ending on or before the Closing Date and shall pay all Taxes related
thereto. BUYER shall prepare and file (or cause to be prepared and filed) all
returns and forms required to be filed with respect to ARC for any taxable
period ending after the Closing Date, and pay (or cause to be paid) all Taxes
which accrue with respect to ARC for any taxable period ending after the Closing
Date.
(b) ILCO shall pay and shall indemnify and hold harmless BUYER against any
and all Taxes of or payable by ARC attributable to operations, acts or omissions
of ARC prior to the Closing Date.
( c ) BUYER shall pay and shall indemnify and hold harmless ILCO against
any and all Taxes of or payable by ARC attributable to operations, acts or
omissions of BUYER or ARC on and after the Closing Date.
(d) ILCO shall be entitled to receive all refunds of federal income taxes
of ARC (and any interest thereon) with respect to all periods through the
Closing Date (the "Pre-Closing Period"), unless any such refunds are carried as
an asset by ARC on the Closing Date, and all refunds of state or local income or
franchise taxes of ARC (and any interest thereon) with respect to periods ending
on or prior to the Closing Date. BUYER shall pay to ILCO within five business
days after receipt thereof any such refunds received by BUYER.
-4-
(e) BUYER shall be entitled to all refunds of federal income taxes of ARC
with respect to all periods ending after the Closing Date (the "Post-Closing
Period") (and any interest thereon), and all refunds of state or local income or
franchise taxes of ARC with respect to periods ending after the Closing Date
(and any interest thereon). ILCO shall pay to BUYER within five business days
after receipt thereof any such refunds received by ILCO. BUYER shall be solely
responsible for and shall indemnify and hold ILCO harmless with respect to all
other Taxes imposed by any taxing authority with respect to ARC or its business
for the Post- Closing Period.
(f) As used herein, the term "Taxes" means all federal, state, county,
local or other taxes, charges, levies or other assessments of any kind
whatsoever, including without limitation, (a) income, accumulated earnings,
franchise, excise, sales, use, gross receipts, ad valorem, profits, real or
personal property, capital stock, license, payroll, withholding, employment,
workers' compensation, social security, transfers and gains taxes, and (b)
interest, penalties, additions to tax and any similar impositions with respect
thereto.
2.10 Indemnification.
(a) BUYER agrees to indemnify ILCO and its officers, directors, agents and
affiliates in respect of, and hold each of them harmless from and against, any
and all Damages incurred by ILCO and its officers, directors, agents and
affiliates as a result of the negligence or misconduct of BUYER in the conduct
of the operations of the COMPANY after the Closing.
(b) ILCO agrees to indemnify BUYER in respect of, and hold BUYER harmless
from and against, any and all Damages incurred by BUYER as a result of the
negligence or misconduct of ILCO or its affiliates in the conduct of the
operations of ARC prior to the Closing.
( c ) All claims by any party seeking indemnification for Damages under
this Agreement (" Indemnified Party") will be asserted as to the party from
which indemnity is sought hereunder ("Indemnifying Party") and resolved as
follows:
(1) In the event any claim or demand for which an Indemnifying Party
would be liable for Damages to an Indemnified Party under this Agreement is
asserted against or sought to be collected from such Indemnified Party by a
person other than ILCO, BUYER or any of their affiliates ("Third Party
Claim"), the Indemnified Party shall deliver a notice of claim ("Claim
Notice") within 30 days to the Indemnifying Party. The Indemnifying Party
will notify the Indemnified Party as soon as practicable but not in any
event more than 30 calendar days of receipt of the Claim Notice ("Notice
Period") whether the Indemnifying Party desires, at the sole cost and
expense of the Indemnifying Party, to defend the Indemnified Party against
such Third Party Claim.
-5-
(A) If the Indemnifying Party notifies the Indemnified Party
within the Notice Period that the Indemnifying Party desires to defend
the Indemnified Party with respect to the Third Party Claim pursuant
to this Agreement, then theIndemnifying Party will have the right to
defend, at its sole cost and expense, such Third Party Claim by all
appropriate proceedings, which proceedings will be diligently
prosecuted by the Indemnifying Party to a final conclusion or will be
settled at the discretion of the Indemnifying Party (with the consent
of the Indemnified Party, which consent will not be unreasonably
withheld). The Indemnifying Party will have full control of such
defense and proceedings, including any compromise or settlement
thereof; provided, that if requested by the Indemnifying Party, the
Indemnified Party agrees, at the sole cost and expense of the
Indemnifying Party, to cooperate with the Indemnifying Party and its
counsel in contesting any Third Party Claim that the Indemnifying
Party elects to contest, or, if appropriate and related to the Third
Party Claim in question, in making any counterclaim against the person
asserting the Third Party Claim, or any cross-compliant against any
person (other than the Indemnified Party or any of its affiliates).
The Indemnified Party may participate in, but not control, any defense
or settlement of any Third Party Claim controlled by the Indemnifying
Party, and except as provided in the preceding sentence, the
Indemnified Party will bear its own costs and expenses with respect to
such participation.
(B) If the Indemnifying Party fails to notify the Indemnified
Party within the Notice Period that the Indemnifying Party desires to
defend the Indemnified Party, or if the Indemnifying Party gives such
notice but fails to prosecute diligently or settle the Third Party
Claim, or if the Indemnifying Party fails to give any notice
whatsoever within the Notice Period, then the Indemnified Party will
have the right to defend, at the sole cost and expense of the
Indemnifying Party, the Third Party Claim by all appropriate
proceedings, which proceedings will be promptly and vigorously
prosecuted by the Indemnified Party to a final conclusion or will be
settled at the discretion of the Indemnified Party (with the consent
of the Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such
defense and proceedings, including any compromise or settlement
thereof; provided, however, that if requested by the Indemnified
Party, the Indemnifying Party agrees, at the sole cost and expense of
the Indemnifying Party, to cooperate with the Indemnified Party and
its counsel in contesting any Third Party Claim which the Indemnified
Party is contesting, or, if appropriate and related to the Third Party
Claim in questions, in making any counterclaim against the person
asserting the Third Party Claim, or any cross-complaint against any
person (other than the Indemnifying Party of any of its affiliates).
The Indemnifying Party may participate in, but not control, any
defense or settlement controlled by the Indemnified Party, and the
Indemnifying Party will bear its own costs and expenses with respect
to such participation. Notwithstanding the foregoing provisions, if
the Indemnifying Party has notified the Indemnified Party with
reasonable promptness that the Indemnifying Party disputes its
liability to the Indemnified Party with respect to such Third Party
Claim and if such dispute is resolved in favor of the Indemnifying
Party, the Indemnifying Party will not be required to bear the costs
and expenses of the Indemnified Party's defense or of the Indemnifying
Party's participation therein at the Indemnified Party's request, and
the Indemnified Party will reimburse the Indemnifying Party in full
for all costs and expenses incurred by the Indemnifying Party in
connection with such litigation.
-6-
(2) In the event any Indemnified Party should have a claim against any
Indemnifying Party hereunder that does not involve a Third Party Claim
being asserted against or sought to be collected from the Indemnified
Party, the Indemnified Party shall deliver notice within 30 days to the
Indemnifying Party. The failure by any Indemnified Party to give such
notice shall not impair such party's rights hereunder except to the extent
that an Indemnifying Party demonstrates that it has been prejudiced
thereby.
2.11 Termination. This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned, upon notice by the terminating party to
the other party:
(a) At any time before the Closing, by mutual written agreement of all
parties hereto;
(b) At any time after February 15, 2004, by ILCO if the transactions
contemplated by this Agreement have not been consummated on or before
such date and such failure to consummate is not caused by a breach of
this Agreement by ILCO ; or
(c) At any time after February 15, 2004, by BUYER if the transactions
contemplated by this Agreement have not been consummated on or before
such date and such failure to consummate is not caused by a breach of
this Agreement by BUYER
2.12 Effect of Termination. If this Agreement is validly terminated
pursuant to Section 2.11, this Agreement will forthwith become null and void,
and there will be no liability on the part of any party hereto (or any of their
respective officers, directors, employees, agents, consultants, or other
representatives).
2.13 Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be given by confirmed telecopy or
registered mail addressed:
(a) If to BUYER:
▇▇▇▇▇▇ ▇▇▇▇,
3001 Huron Club Court
Austin, Texas 7873
(b) If to ILCO:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel
Financial Industries Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-7-
All notices and other communications required or permitted under this Agreement
that are addressed as provided in this Section 2.13 will (1) if delivered
personally, be deemed given upon delivery, (2) if delivered by facsimile
transmissions, be deemed given when sent and confirmation or receipt is
received, and (3) if delivered by mail in the manner described above, be deemed
given on the third business day after the deposit in a regular depositary of the
United States mail. Any party from time to time may change its address for the
purpose of notices to that party by giving notice to the other parties hereto
specifying a new address, but no such notice will be deemed to have been given
until it is actually received by the party sought to be charged with the
contents thereof.
2.14 Expenses. Except as otherwise provided herein, each party hereto shall
pay its own expenses, including without limitation, legal and accounting fees
and expenses, incident to its negotiation and preparation of this Agreement and
to its performance and compliance with the provisions contained herein.
2.15 Titles and Headings. Titles and headings to Sections herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
2.16 No Third-Party Beneficiaries. Nothing in this Agreement or in any
agreement attached hereto as an exhibit is intended or shall be construed to
give any person, other than the parties hereto, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any agreement attached
hereto as an exhibit or any provision contained herein or therein.
2.17 Entire Agreement. This Agreement, together with the contracts executed
and delivered pursuant hereto, supersedes all prior discussions and agreements
between the parties with respect to the subject matter of this Agreement, and
this Agreement, including documents, certificates and contracts executed and
delivered pursuant hereto, contains the sole and entire agreement between the
parties hereto with respect to the subject matter hereof.
2.18 Public Announcements. At all times at or before the Closing, the
parties will consult with the other before issuing or making any reports,
statements, or releases to the public with respect to this Agreement or the
transactions contemplated hereby If either party is unable to obtain the consent
of the other party of its public report, statement, or release and such report,
statement, or release is, in the opinion of legal counsel to such party,
required by law in order to discharge such party's disclosure obligations, then
such party may make or issue the legally required report, statement, or release
and promptly furnish the other party with a copy thereof.
2.19 Further Assurances; Cooperation. Each party hereto agrees that, from
time to time after the Closing, upon the reasonable request of any other party,
it will cooperate and will cause its respective affiliates to cooperate to
effect the orderly transition of the businesses, operations and affairs of ARC
from ownership and control by ILCO to BUYER. Without limiting the generality of
the foregoing, (a) ILCO will give and will cause its affiliates to give BUYER
reasonable access to all books and records reasonably requested by BUYER in the
preparation of any post-Closing financial statements, reports, or tax returns of
ARC; and (b) BUYER will give representatives of ILCO and its affiliates
reasonable access to all books and records of ARC reasonably requested by ILCO
or its affiliates in the preparation of any post-Closing financial statements,
reports, or tax returns of ARC.
-8-
2.20 Waiver. Any term or condition of this Agreement may be waived at any
time by the party that is entitled to the benefit thereof. A waiver on one
occasion will not be deemed to be a waiver of the same or any other breach on a
future occasion. All remedies, either under this Agreement, or by law or
otherwise afforded, will be cumulative and not alternative, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such terms or conditions.
2.21 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas without giving effect to any
choice or conflicts of law provision or rule (whether of the State of Texas or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Texas.
2.22 Binding Effect. This Agreement is binding upon and will inure to the
benefit of the parties and their respective successors and permitted assignees.
2.23 No Assignment. This Agreement or any right or obligation hereunder may
not be assigned by any party hereto without the prior written consent of the
other parties hereto and any attempt to do so will be void.
2.24 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of the parties under this Agreement will not be materially
and adversely affected thereby, (a) such provision will be fully severable; (b)
this Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof; ( c ) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom; and (d) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
2.25 Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their intent, and no rule of
strict construction shall be applied against any party. Any reference to any
federal, state, local or foreign statute or law shall be deemed also to refer to
all rules and regulations promulgated thereunder, unless the context requires
otherwise.
2.26 Execution in Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement,
and shall become a binding agreement when one or more counterparts have been
signed by each of the parties and delivered to each of the other parties.
2.27 Brokers. The parties mutually agree that all negotiations relative to
this Agreement and the transactions contemplated hereby have been carried out by
the parties without the assistance of a broker. BUYER represents and agrees that
no claim by any person for a finder's fee, brokerage commission or similar
payment may arise.
-9-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
InterContinental Life Corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
Buyer
/s/ ▇▇▇▇▇▇ ▇▇▇▇
_____________________________________
-10-
Exhibit 1.03
▇▇▇▇ OF SALE AND ASSIGNMENT AGREEMENT
This ▇▇▇▇ OF SALE AND ASSIGNMENT AGREEMENT (this "Agreement"), is entered
into as of December 30, 2003, by and between InterContinental Life Corporation,
a Texas corporation ("ILCO"), Actuarial Risk Consultants, Inc. ("ARC"), a Nevada
corporation, and ▇▇▇▇▇▇ ▇▇▇▇, an individual resident of the state of Texas
("Wise").
W I T N E S S E T H:
WHEREAS, to induce ▇▇▇▇▇▇ ▇▇▇▇ to enter into a stock purchase agreement
pursuant to which ILCO will sell, and ▇▇▇▇▇▇ ▇▇▇▇ will purchase, all of the
shares of capital stock of ARC, and ILCO desires to enter into this Agreement to
convey to ARC certain assets of ILCO currently located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
NOW, THEREFORE, in consideration of the premises, the terms and conditions
set forth herein, the mutual benefits to be gained by the performance thereof
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions.
"Encumbrance" shall mean any security interest, pledge, mortgage, lien
(including tax liens), charge, encumbrance, easement, adverse claim, adverse
preferential arrangement, restriction or defect in title.
"Licensed Assets" shall mean the assets identified on Exhibit A, hereto, as
"licensed assets", which contain software that is licensed to Financial
Industries Corporation ("FIC") under an enterprise license.
-11-
"Permitted Encumbrances" shall mean (a) Encumbrances for taxes and other
governmental charges and assessments which are not yet due and payable, (b)
Encumbrances of landlords and liens of carriers, warehousemen, mechanics and
materialmen and other like Encumbrances arising in the ordinary course of
business for sums not yet due and payable and (c) other Encumbrances or
imperfections on property which are not material in amount or do not materially
detract from the value of or materially impair the existing use of the property
affected by such Encumbrance or imperfection.
SECTION 2. Assignment. ILCO does hereby convey, transfer and assign, to ARC
all right, title and interest in and to the assets listed on Exhibit A hereto
free and clear of all Encumbrances, except for Permitted Encumbrances, and
excluding those assets which are identified on Exhibit A as Licensed Assets.
SECTION 3. Convent to Assign. ILCO shall convey, transfer and assign to ARC
all right, title and interest in and to each Licensed Asset upon the receipt by
ILCO on or prior to February 15, 2004 of a certificate executed by an authorized
officer of ARC certifying that such Licensed Asset no longer contains software
that is licensed to FIC under an enterprise license, together with evidence
reasonably satisfactory to ILCO of the removal of such software. Any Licensed
Asset that contains software that is licensed to FIC under an enterprise license
on February 15, 2004 shall be promptly delivered to FIC at the sole expense of
ARC.
SECTION 4. Disclaimer of Warranty. EXCEPT AS IS EXPRESSLY SET FORTH HEREIN,
ILCO MAKES NO REPRESENTATION OR WARRANTY AS TO ANY MATTER, EXPRESS OR IMPLIED,
INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, WARRANTY AGAINST INFRINGEMENT OR ANY OTHER WARRANTY AS TO
THE CONDITION OR OPERATION OF ANY OF THE ASSETS.
-12-
SECTION 5. Further Assurances. ILCO hereby agrees that it and its
successors shall execute, deliver, acknowledge, file and record, or cause to be
executed, delivered, acknowledged, filed and recorded, any and all such further
bills of sale, deeds, general conveyances, endorsements, assignments,
confirmations and other good and sufficient instruments of conveyance, transfer
and assignment as ARC or its successors or assigns shall reasonably request in
order to complete, insure and perfect the conveyance, transfer and assignment of
any Assets hereby conveyed, transferred and assigned.
SECTION 6. Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 7. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas, without regard to the
principles of conflicts of law thereof, except to the extent that mandatory
principles of conflicts of law require the application of the laws of another
jurisdiction wherein any of the properties, assets and interests hereby
conveyed, transferred, assigned and contributed or intended so to be are located
to determine the validity or effect of the conveyance, transfer, assignment and
contribution thereof.
SECTION 8. Severability. In the event any provision contained herein shall
be held to be invalid, illegal or unenforceable for any reason, the invalidity,
illegality or unenforceability thereof shall not affect any other provision
hereof, and, to the extent permitted by law, this Agreement shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein.
SECTION 9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
-13-
AREA ITEM ITEM NUMBER NUMBER
Reception 63x30 desk cherry 3/160/76LR 2
30" Cnr Desk Cherry 3/76/76 1
Corner Sleeve-metal DE 200 1
63" Hutch Low Curved Cherry H/108/40C 1
Mobile Ped, Box/Box/File
Central Lock Cherry 3/50/50/3 1
Mobius Mid Back Chair Grade
M2/Solo Currant 4704 1
Occasional Table-Cylinder 21"
Round x 20" High Cherry
Laminate OP-C2120 1
Pennant Guest Chair 62x-Guxx 2
Table 1
Highback Leather Chair 9039GH706 1
Common Area Bookcases 35.5" x 79" four
Adjustable Shelves B/90/200/35 3
42" Round Table and 18" Base 3/105/00MT;81222 1
Conference Room 86.5" Top Conference, Cherry;
Laminate Cylinder Base 18" 3/220/120MT; 81222 1
Midback off/Conf Chair 9139GL 6
Desk High Bookcase B/80/72/35 1
File Room Laminate Door Cabinet 400E-2436B 1
HON File Cabinets 784L 9
Typing Stand FW-42 1
Supply Cabinet 1
Cory's Office 71" x 45" Curved Desk Full Mod
w/two Wire Ports 3/180/113 1
71" Credenza 3/180/50/6 1
Guest Chair KL-2503 2
Highback Leather Chair 9067ZH 1
Mobile Ped, Box/Box/File
Central Lock Cherry 3/50/50/3 1
Desk High Bookcase B/80/72/35 1
Larry's Office 71" x 34" Desk Frame 3/180/86 1
Corner Sleeve-Metal DE 200 1
-14-
AREA ITEM ITEM NUMBER NUMBER
Continuation of
Larry's Office Mobile Ped, Box/Box/File
Central Lock Cherry 3/50/50/3 1
Guest Chair KL-2503 1
Desk High Bookcase B/80/72/35 1
Highback Leather Chair 9039GH 1
Kent's Office 71" x 34" Desk Frame 8582;8084 1
Mobile Ped, Box/Box/File
Central Lock Cherry 3/50/50/3 1
Guest Chair KL-2503 1
Desk High Bookcase B/80/72/35 1
Highback Leather Chair 9039GH 1
Alisa's Office 71" x 34" Desk Frame 3/180/86 1
Corner Sleeve-Metal DE 200 1
Mobile Ped, Box/Box/File
Central Lock Cherry 3/50/50/3 1
Guest Chair KL-2503 1
Desk High Bookcase B/80/72/35 1
Highback Leather Chair 9039GH 1
Joyce's Office 71" x 34" Desk Frame 3/180/86 1
Corner Sleeve-Metal DE 200 1
Mobile Ped, Box/Box/File
Central Lock Cherry 3/50/50/3 1
Guest Chair KL-2503 1
Desk High Bookcase B/80/72/35 1
Highback Leather Chair 9039GH 1
Table 3/90/61T 1
Extra Office 71" Curved Desk 3/180/113 1
71" Credenza 3/180/50/6 1
Guest Chair KL-2503 1
Highback Leather Chair 9067ZH 1
Mobile Ped, Box/Box/File
Central Lock Cherry 3/50/50/3 1
Desk High Bookcase B/80/72/35 1
Office Cube Boise Workspace Cub 1
Highback Leather Chair 9039GH 1
Guest Chair 1
-15-
PRODUCT SERIAL NUMBER MODEL NUMBER ASSIGNED TO LICENSED ASSET?
18" LCD Flat Panel Display MUL8007A0041850 FPD1830 ▇▇▇▇▇
Gateway DS 600 XL (YG2) 29303947 600YG2 ▇▇▇▇▇ Yes
Gateway Keyboard-GW 104+PS2 b283595 sk-9921 ▇▇▇▇▇
GW Logitech USB Optical Mouse L2B24415217 ▇▇▇▇▇
Docking Station D7002480194 PRSHR ▇▇▇▇▇
Gateway 300SPlus PC MUL7003D0032720 FPD1730 April Yes
Gateway E Series 31535639 E Series April Yes
Microsoft Natural Keyboard 2100900344B KB-7903 April
HighMark Mouse CB2CO1205331 April
HP Deskjet 990cxi MY274110HK 990cxi April
Speakers CA-2022R April
18" LCD Flat Panel Display QS7330900563 FPD1730 ▇▇▇▇
Gateway 200XL 31539562 ▇▇▇▇ Yes
GW Logitech USB Optical Mouse L2B24414997 ▇▇▇▇
HP Deskjet MY39B1N1JF 5850 ▇▇▇▇
ipaq pocket pc 5Y2CKWG1V5MO h5455 ▇▇▇▇ Yes
Wireless Card Slot 7Z29JJP5Y098 ▇▇▇▇
Ipaq Charger Adapter ▇▇▇▇
Auto Adapter Kit ▇▇▇▇
HP Laser Jet 4100 MFP series USRGY10998 C9148A File Room
HP Deskjet MY39P1N146 5850 File Room
Refrigerator K2002600169 HSEWNAP File Room
18" LCD Flat Panel Display MUL8007B0002463 FPD1830 ▇▇▇▇▇
Miscrosoft Natural Keyboard 71305 545 43155600204 ▇▇▇▇▇
Brother Typewriter April
Brother Printer U60563B3J212902 HL-5040 ▇▇▇▇▇
18" LCD Flat Panel Display MUL8007A0042618 FPD1830 Kent
Gateway DS 600 XL (YG2) 29303945 600YG2 Kent Yes
Gateway Keyboard-GW 104+PS2 B321373 SK-9921 Kent
Docking Station ??? PRSHR ▇▇▇▇
▇▇ Logitech USB Optical Mouse LZB24414997 Kent
18" LCD Flat Panel Display MUL8007B002278 FPD1830 ▇▇▇▇▇
Gateway DS 600 XL (YG2) 29303946 600YG2 ▇▇▇▇▇ Yes
Gateway Keyboard-GW 104+PS2 B283593 sk-9921 ▇▇▇▇▇
GW Logitech USB Optical Mouse LZB24415297 ▇▇▇▇▇
Docking Station PRSHR ▇▇▇▇▇
Compaq Computer 9X2BKQDZ5034 CPQ EVO N1000C ▇▇▇▇▇▇ Yes
Gateway Keyboard-GW 104+PS2 B263543 sk-9920
Gateway Keyboard-GW 104+PS2 CO17353 sk-9921
Gateway Mouse HCA24210776
Airline Adapter (3) AJ/KH/LS
Warranty (3) AJ/KH/LS
Carrying Cases (3) AJ/KH/LS
Projector Best Buy Conf Room
Data Line to B1
-16-
PRODUCT MODEL NUMBER ASSIGNED TO
Lucent A2011-2 BLK 400112884 ▇▇▇▇
TMX-1105Blk 400107918 Extra Office
A2011 Black 400112884 ▇▇▇▇▇
TMX-1105Blk 400107918 Empty (Front)
SBC-4000 Multi-Line phone ▇▇▇▇▇▇▇▇▇ April
A2011 Black 400112884 ▇▇▇▇▇
TMX-1105Blk 400107918 Empty (Cube)
A2011 Black 400112884 ▇▇▇▇▇
Polycom Sound Station (Intercom phone) S/N ▇▇▇▇▇▇▇▇ Conference
TMX-2105Blk 400107868 File Room
Cell Phone SCP-5300 ▇▇▇▇▇▇ ▇▇▇▇
Cell Phone SCP-5300 ▇▇▇▇ ▇▇▇▇
-17-
InterContinental Life Corporation
By:
Name:__________________________________
Title:_________________________________
Actuarial Risk Consultants, Inc.
By:
Name:__________________________________
Title:_________________________________
▇▇▇▇▇▇ ▇▇▇▇
-18-
Exhibit 2.04
1. InterContinental Life Corporation Employees Savings and Investment
Plan
2. InterContinental Life Corporation Employees Retirement Plan
3. InterContinental Life Corporation Medical Insurance Plan
4. InterContinental Life Corporation Dental Insurance Plan
5. InterContinental Life Corporation Group Life Insurance Plan
6. InterContinental Life Corporation Long Term Disability Plan
7. InterContinental Life Corporation Section 125 Plan
8. InterContinental Life Corporation Tuition Reimbursement Plan
-19-