EXHIBIT 10.98
SALE OF ASSETS AGREEMENT
This Sale of Assets Agreement is entered into this day by and among UNITED
GROUP ASSOCIATION, INC., a Texas corporation ("Seller"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("Seller's Shareholder"), and UICI, a Delaware corporation ("Purchaser").
WHEREAS, Seller operates a business primarily engaged in the sale of
insurance and related services. Seller's principal place of business is ▇▇▇▇
▇▇▇▇▇ ▇'▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. Seller owns equipment,
inventories, contract rights, leasehold interests, and miscellaneous assets used
in connection with the operation of its business; and
WHEREAS, Purchaser desires to acquire substantially all the assets used in
the operation of Seller's business of selling insurance, and Seller desires to
sell such assets to Purchaser; and
WHEREAS, Seller's Shareholder is the sole shareholder of Seller,
NOW THEREFORE, In consideration of the above recitals and the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it
is agreed as follows:
Section 1. Assets Purchased.
1.1 Assets Purchased. Seller agrees to sell to Purchaser and Purchaser
agrees to purchase from Seller, on the terms and conditions set forth herein,
the following assets ("Assets"):
(a) That certain tract of land located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇, together with all buildings, improvements, structures and
equipment located on the tract.
(b) That certain tract of land located at ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, together with all buildings, improvements, structures
and equipment located on the tract.
(c) That certain tract of land located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇, together with all buildings, improvements, structures and
equipment located on the tract.
PAGE 1 - SALES OF ASSETS AGREEMENT
(d) Seller will assign to Purchaser any right, title or interest it
has with regard to equipment and supplies located on the properties listed
in (a), (b) and (c) above, and all contracts, leases or agreements
relating to the operation of its agency business. Conversely, Purchaser
agrees to assume those obligations which it reasonably determines are
necessary for the operation of the Seller's agency business.
(e) Seller hereby assigns and transfers to Purchaser any and all
rights it has with respect to any agent contracted with it to sell
insurance and related services. Seller agrees that any commissions,
remuneration or compensation on new business sold after January 1, 1997
shall be the property of Purchaser; however, Seller will retain the rights
to any first year or renewal commissions on business sold prior to January
1, 1997. In addition, it is agreed that Seller will
receive_______________% as an override with respect to any new business
written after January 1, 1997 by any agent contracted with the Seller.
(f) Seller hereby assigns and transfers to Purchaser all the assets
and new business from January 1, 1997 forward with regard to Performance
Rewards, Inc. Seller will retain all rights with respect to compensation
payable as a result of business produced prior to January 1, 1997. Any
bonuses paid with respect to business generated prior to January 1, 1997
regarding Performance Rewards, Inc. will remain the responsibility of
Seller's Shareholder. The calculation of amounts owed will be determined
by Purchaser and billed to Seller's Shareholder prior to the distribution
of any bonuses.
(g) Seller will assign and Purchaser will assume any lease
obligations for premises leased by the Seller. Seller will assign to
Purchaser any rents that it is entitled to by virtue of leases executed
with third parties occupying any portion of the premises with respect to
the properties listed in (a), (b) and (c) above.
(h) Seller will assign to Purchaser existing agent debit balances of
agents contracted with Seller. Purchaser shall have the right to assign to
any of its affiliates the rights hereunder to purchase all or any portion
of the debit balances hereunder.
(i) Seller will assign all right, title and interest in and to the
following service marks registered in the United States Patent and
Trademark Office: Registration No. 1,972,838, registered May 7, 1996,
Registration No. 1707122, registered August 11, 1992, and Registration No.
1619021, registered October 23, 1990 (the "Marks"), together with the
goodwill of the business symbolized by the Marks and the above
registrations thereof. Seller agrees to execute any document necessary to
effectuate this transfer.
PAGE 2 - SALES OF ASSETS AGREEMENT
(j) Seller hereby sells, assigns and transfers all of its right,
title and interest to all copyrights pertaining to its operation of the
agency, including all extensions, renewals and continuations thereof.
Seller agrees to execute any document necessary to effectuate this
transfer.
(k) Seller hereby sells, assigns and transfers to Purchaser all of
its right, title and interest in and to that certain Agreement dated
October 1, 1993 by and between the Seller, ▇▇▇▇▇▇▇▇, Inc., ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Concepts in Association Marketing, Inc., and Specialized
Association Services, a copy of which is attached hereto, which provides
that Seller will receive a percentage of gross income as described
therein.
The total purchase price for the assets listed hereinabove is equal to the
net book value of the tangible assets at December 31, 1996. The value of the
assets will be determined and the purchase price for the assets shall be agreed
upon by the parties at least five (5) business days prior to closing.
1.2 Employees. Purchaser shall offer to employ those employees of Seller
set forth on Exhibit A at the compensation level at which they were employed by
Seller on the day prior to the effective date of this Agreement. The employees
shall be offered benefits consistent with and on the same terms and conditions
as those currently offered to Purchaser's employees. Purchaser shall give such
employees credit for service with Seller for purposes of eligibility and vesting
with respect to any benefit plan of Purchaser that requires service for
eligibility or vesting.
1.3 Agents Total Ownership Plans. As of December 31, 1996, the unvested
number of shares of UICI stock in TOP I and TOP II was 922,587 shares; the
estimated amount of shares that will eventually vest under ITOP for the period
1988 through 1996 is 228,190 shares. It is agreed by the parties that either
Seller or Seller's Shareholder, as the case may be, will be responsible for
providing the matching value for these shares as agreed to by the parties. If
the parties cannot agree, either Seller or Seller's Shareholder, as the case may
be, will be responsible for the next vesting dates until the total commitment of
1,150,777 shares is completed.
Section 2. Seller's and Seller's Shareholder Representations and
Warranties. Seller and Seller's Shareholder each represent and warrant to
Purchaser as follows:
2.1 Corporate Existence. Seller is now and on the Closing Date will be a
corporation duly organized and validly existing and in good standing under the
laws of the State of Texas. Seller has all requisite corporate power and
authority to own, operate and/or lease the Assets, as the case may be, and to
carry on its business as now being conducted.
PAGE 3 - SALES OF ASSETS AGREEMENT
2.2 Authorization. The execution, delivery, and performance of this
Agreement have been duly authorized and approved by the board of directors and
shareholders of Seller, and this Agreement constitutes a valid and binding
Agreement of Seller in accordance with its terms.
2.3 Title to Assets. Seller holds good and marketable title to the Assets,
free and clear of restrictions on or conditions to transfer or assignment, and
free and clear of liens, pledges, charges, or encumbrances.
2.4 Transfer Not Subject to Encumbrances or Third-Party Approval. The
execution and delivery of this Agreement by Seller and Seller's Shareholder, and
the consummation of the contemplated transactions, will not result in the
creation or imposition of any valid lien, charge, or encumbrance on any of the
Assets, and will not require the authorization, consent, or approval of any
third party, including any governmental subdivision or regulatory agency.
2.5 Litigation. Seller and Seller's Shareholder have no knowledge of any
claim, litigation, proceeding, or investigation pending or threatened against
Seller that might result in any material adverse change in the business or
condition of Assets being conveyed under this Agreement.
2.6 Accuracy of Representations and Warranties. None of the
representations or warranties of Seller or Seller's Shareholder contain or will
contain any untrue statement of a material fact or omit or will omit or misstate
a material fact necessary in order to make statements in this Agreement not
misleading. Seller and Seller's Shareholder know of no fact that has resulted,
or that in the reasonable judgment of Seller's Shareholder will result in a
material change in the business, operations, or assets of Seller that has not
been set forth in this Agreement or otherwise disclosed to Purchaser.
2.7 Change of Name. Seller will take all action necessary or appropriate
to permit Purchaser to legally commence use of Seller's name on the Closing
Date.
2.8 Conditions and Best Efforts. Seller and Seller's Shareholder will use
their best efforts to effectuate the transactions contemplated by this Agreement
and to fulfill all the conditions of the obligations of Seller and Seller's
Shareholder under this Agreement, and will do all acts and things as may be
required to carry out their respective obligations under this Agreement and to
consummate and complete this Agreement.
Section 3. Representations and Covenants of Purchaser. Purchaser
represents and warrants as follows:
PAGE 4 - SALES OF ASSETS AGREEMENT
3.1 Corporate Existence. Purchaser is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware.
Purchaser has all requisite corporate power and authority to enter into this
Agreement and perform its obligations hereunder.
3.2 Authorization. The execution, delivery, and performance of this
Agreement have been duly authorized and approved by the board of directors of
Purchaser, and this Agreement constitutes a valid and binding Agreement of
Purchaser in accordance with its terms.
3.3 Accuracy of Representations and Warranties. None of the
representations or warranties of Purchaser contain or will contain any untrue
statement of a material fact or omit or will omit or misstate a material fact
necessary in order to make the statements contained herein not misleading.
3.4 Conditions and Best Efforts. Purchaser will use its best efforts to
effectuate the transactions contemplated by this Agreement and to fulfill all
the conditions of Purchaser's obligations under this Agreement, and shall do all
acts and things as may be required to carry out Purchaser's obligations and to
consummate this Agreement.
Section 4. Conditions Precedent to Purchaser's Obligations. The obligation
of Purchaser to purchase the Assets is subject to the fulfillment, prior to or
at the Closing Date, of each of the following conditions, any one or portion of
which may be waived in writing by Purchaser:
4.1 Representations. Warranties, and Covenants of Seller and Seller's
Shareholder. All representations and warranties made in this Agreement by Seller
and Seller's Shareholder shall be true as of the Closing Date as fully as though
such representations and warranties had been made on and as of the Closing Date,
and, as of the Closing Date, neither Seller nor Seller's Shareholder shall have
violated or shall have failed to perform in accordance with any covenant
contained in this Agreement.
4.2 Conditions of the Business. There shall have been no material adverse
change in the manner of operation of Seller's business prior to the Closing
Date.
4.3 No Suits or Actions. At the Closing Date no suit, action, or other
proceeding shall have been threatened or instituted to restrain, enjoin, or
otherwise prevent the consummation of this Agreement or the contemplated
transactions.
Section 5. Purchaser's Acceptance. Purchaser represents and acknowledges
that it has entered into this Agreement on the basis of its own examination,
personal knowledge, and opinion of the value of the business. Purchaser has not
relied on any
PAGE 5 - SALES OF ASSETS AGREEMENT
representations made by Seller other than those specified in this Agreement.
Purchaser further acknowledges that neither Seller nor Seller's Shareholder has
made any agreement or promise to repair or improve any of the leasehold
improvements, equipment, or other personal property being sold to Purchaser
under this Agreement, and that Purchaser takes all such property in the
condition existing on the date of this Agreement, except as otherwise provided
in this Agreement.
Section 6. Indemnification and Survival.
6.1 Survival of Representations and Warranties. All representations and
warranties made in this Agreement shall survive the Closing of this Agreement,
except that any party to whom a representation or warranty has bee made in this
Agreement shall be deemed to have waived any misrepresentation or breach of
representation or warranty of which such party had knowledge prior to Closing.
Any party learning of a misrepresentation or breach of representation or
warranty under this Agreement shall immediately give written notice thereof to
all other parties to this Agreement. The representations and warranties in this
Agreement shall terminate three years from the Closing Date, and such
representations or warranties shall thereafter be without force or effect,
except any claim with respect to which notice has been given to the party to be
charged prior to such expiration date.
6.2 Seller's and Seller's Shareholder's Indemnification.
6.2.1 Seller and Seller's Shareholder each hereby agree to indemnify
and hold Purchaser, it successors, and assigns harmless from and against:
6.2.2 Any and all claims, liabilities, and obligations of every kind
and description, contingent or otherwise, arising out of or related to the
operation of Seller's business prior to the close of business on the day before
the Closing Date, except for claims, liabilities, and obligations of Seller
expressly assumed by Purchaser under this Agreement or paid by insurance
maintained by Seller, Seller's Shareholder, or Purchaser.
6.2.3 Any and all damage or deficiency resulting from any material
misrepresentation, breach of warranty or covenant, or nonfulfillment of any
agreement on the part of Seller and Seller's Shareholder under this Agreement.
6.2.4 Seller's and Seller's Shareholder's indemnity obligations
under this Agreement shall be subject to the following:
6.2.5 If any claim is asserted against Purchaser that would give
rise to a claim by Purchaser against Seller and Seller's Shareholder for
indemnification under the provisions of this Section, then Purchaser shall
promptly give written notice to
PAGE 6 - SALES OF ASSETS AGREEMENT
Seller's Shareholder concerning such claim and Seller's Shareholder shall, at no
expense to Purchaser, defend the claim.
6.2.6 Seller's Shareholder shall not be required to indemnify
Purchaser for an amount that exceeds the total purchase price paid by Purchaser
pursuant to this Agreement.
6.3 Purchaser's Indemnification. Purchaser agrees to defend, indemnify,
and hold harmless Seller and Seller's Shareholder from and against:
6.3.1 Any and all claims, liabilities, and obligations of every kind
and description arising out of or related to the operation of the business
following Closing or arising out of Purchaser's failure to perform obligations
of Seller assumed by Purchaser pursuant to this Agreement.
6.3.2 Any and all damage or deficiency resulting from any material
misrepresentation, breach of warranty or covenant, or nonfulfillment of any
agreement on the part of Purchaser under this Agreement.
Section 7. Closing.
7.1 Time and Place. This Agreement shall be closed at such other time and
place as the parties may agree.
Section 8. Miscellaneous Provisions.
8.1 Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified, or supplemented only by a written agreement signed by
all of the parties hereto.
8.2 Notices. All notices, requests, demands, and other communications
required or permitted hereunder will be in writing and will be deemed to have
been duly given when delivered by hand or two days after being mailed by
certified or registered mail, return receipt requested, with postage prepaid:
If to Purchaser, to: Copy to:
W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President & CEO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
UICI UICI
▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other person or address as Purchaser shall furnish to Seller and
Seller's Shareholder pursuant to the above.
PAGE 7 - SALES OF ASSETS AGREEMENT
If to Seller and/or Seller's
Shareholder, to: Copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other address as Seller or Seller's Shareholder furnish to Purchaser
pursuant to the above.
8.3 Attorney Fees. In the event an arbitration, suit or action is brought
by any party under this Agreement to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorney's fees to be fixed by the arbitrator, trial court, and/or
appellate court.
8.4 Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
8.5 Computation of Time. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall be included, unless it is a Saturday, Sunday or a
legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday or legal holiday.
8.6 Titles and Captions. All section titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the context
nor affect the interpretation of this Agreement.
8.7 Pronouns and Plurals. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
8.8 Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement. Any
amendments to this Agreement must be In writing and signed by the party against
whom enforcement of that amendment is sought.
8.9 Binding Effect; Assignability. This Agreement shall extend to and be
binding upon and inure to the benefit of the parties hereto, their respective
heirs, legal representatives, successors and assigns. Purchaser shall have the
right at any time to assign this Agreement or any portion thereof to any
affiliate of Purchaser without the necessity of seeking the consent of the
Seller.
PAGE 8 - SALES OF ASSETS AGREEMENT
8.10 Arbitration. If at any time during the term of this Agreement any
dispute, difference, or disagreement shall arise upon or in respect of the
Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbiter agreed upon
by the parties, or if no single arbiter can be agreed upon, an arbiter or
arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference, or disagreement shall be
settled by arbitration in accordance with the then prevailing commercial rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbiter may be entered in any court having jurisdiction thereof.
8.11 Presumption. This Agreement or any Section thereof shall not be
construed against any party due to the fact that said Agreement or any Section
thereof was drafted by said party.
8.12 Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purpose of the Agreement.
8.13 Counterparts. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to the original or the
same counterpart.
8.14 Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
8.15 Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
PAGE 9 - SALES OF ASSETS AGREEMENT
This Agreement is executed this 3rd day of March, 1997, but to be
effective the 1st day of January, 1997.
SELLER:
UNITED GROUP ASSOCIATION, INC.
a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
SELLER'S SHAREHOLDER:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Individually
PURCHASER:
UICI
a Delaware corporation
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
PAGE 10 - SALES OF ASSETS AGREEMENT
AMENDMENT NO. 1 TO
SALE OF ASSETS AGREEMENT
This Amendment No. 1 to Sale of Assets Agreement is entered into this 22nd
day of July, 1998, by and among UNITED GROUP ASSOCIATION, INC., a Texas
corporation ("Seller"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual ("Seller's
Shareholder"), and UICI, a Delaware corporation ("Purchaser").
WHEREAS, the parties previously entered into that certain Sale of Assets
Agreement dated March 3, 1997, but with an effective date of January 1, 1997;
and
WHEREAS, clarification needs to be made regarding agent renewal
commissions;
NOW, THEREFORE, the parties hereto agree as follow:
Section 1.1, Paragraph (e) of the Sale of Assets Agreement provided that
Seller will receive an override with respect to any new business written after
January 1, 1997 by any agent contracted with the Purchaser ("New Business").
This override is calculated and paid as a percentage of all renewal commissions
received by Purchaser on New Business. The parties agree that the override
percentage which Purchaser shall pay to the Seller is 10% of renewal
commissions. Renewal commissions are defined as commissions received by
Purchaser from insurance companies, other companies or third parties based on
the collection of premiums, dues or monies for any product or service for the
thirteenth month and thereafter on New Business after deducting all commission
payments to Purchaser's agents. Contingency commissions are included in the
definition of renewal commissions, net of agent write -offs. At any point in
time, the total amount of agent write-offs applied to Contingency commissions
since January 1, 1997 cannot exceed the total amount of contingency commissions
received by Purchaser since January 1, 1997.
Specifically excluded from the definition of renewal commissions are
commissions paid to Purchaser related solely to the costs of generating leads.
Any write-offs which result from the generation of leads are not considered an
agent write-off and applied to contingency commissions.
All other terms and conditions of the Sale of Assets Agreement remain in
full force and effect.
SELLER: UNITED GROUP ASSOCIATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
SELLER'S SHAREHOLDER
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Individually
PURCHASER: UICI
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President.
AMENDMENT NO. 2 TO
SALE OF ASSETS AGREEMENT
THIS AMENDMENT NO. 2 to Sale of Assets Agreement dated March 3, 1997 (the
"Agreement") is entered into this 23rd day of November, 1998, by and among
Special Investment Risks, Inc., a Nevada corporation (as successor to United
Group Association, Inc.) ("Seller"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual ("Seller's
Shareholder"), UICI, a Delaware corporation ("Purchaser"), ▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇ ("Escrowees").
WHEREAS, as set forth In Section 1.3 of the Agreement, the number of
Invested shares of UICI stock In the Agents Total Ownership Plan ("ATOP") total
1,150,777 shares; and
WHEREAS, the Purchaser agrees and acknowledges that Seller or Seller's
Shareholder has no responsibility for any matching shares subsequent to January
1, 1997 and the maximum responsibility of Seller is the 1,150,777 shares; and
WHEREAS, the Seller or the Seller's Shareholder will be responsible for
the next vesting dates until the total commitment of 1,150,777 Is complete; and
WHEREAS, Seller has funded ATOP's vesting of 567,306 (1/1/97 of 261,728
shares and 290,323 shares for 1/1/98, and has provided 15,255 shares as funding
for 1/1/99), which results in a balance of 583,471 shares remaining to vest; and
WHEREAS, the Purchaser desires to have the Seller escrow the balance of
the unvested shares to allow for expeditious processing and funding of the
existing ATOP commitments and Seller is willing to do so,
NOW, THEREFORE, the parties hereto agree as follows:
1. Seller or Seller's Shareholder hereby agree to deliver to Escrowees
583,471 shares of UICI stock accompanied by appropriately executed
stock powers.
2. On any ATOP vesting date, Seller shall be notified of the market
price as of the vesting date with respect to the shares then vesting
and Seller shall have ten (10) business days after such notification
to allow the commitment to be funded with the escrowed shares or
with cash, at Its sole election.
3. In the event Seller elects to use cash, the vesting commitment Is
satisfied and the number of shares of UICI stock represented by the
market price on the vesting date shall be released to Seller from
escrow within ten (10) business days.
4. The Escrowees must act jointly in carrying out their
responsibilities hereunder.
The undersigned have executed or caused this Amendment No. 2 to Sale of
Assets Agreement to be executed as of the day and year first above written.
SPECIAL INVESTMENT UICI
RISKS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------- ------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary Executive Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ Cymun Homer
----------------------------------- ----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual ▇▇▇▇▇ ▇▇▇▇, Escrowee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Escrowee
Agreement acknowledged by:
By: /s/ Cymun Homer
---------------------------
Cymun Homer, Administrator
of the Plan
AMENDMENT NO. 3 TO
SALE OF ASSET AGREEMENT
This Amendment No. 3 to the Sale of Assets Agreement dated March 3, 1997
("Agreement") is entered into effective the 1st day of August 1998, by and among
Special Investment Risks, Inc., a Nevada corporation (successor to United Group
Association, Inc.)("Seller"), and UICI, a Delaware corporation ("Purchaser").
WHEREAS, on August 1, 1998, AvTel Communications, Inc. ("AvTel") was the long
distance provider for the Purchaser: and
WHEREAS, Purchaser received a quote from a third party long distance carrier to
provide long distance at a lower rate; and
WHEREAS, due to certain vendor relationships, AvTel could not match the third
party long distance carrier's rates on August 1, 1998; and
WHEREAS, Purchaser agreed to enter into a one-year contract with AvTel to
provide the Purchaser with long distance based upon Seller's commitment to
reimburse Purchaser for the difference in the cost between AvTel and the third
party long distance provider during term of the one-year contract; and
WHEREAS, Seller and Purchaser believe it is in the mutual best interest of the
parties to enter into and continue such contract on its current basis until July
1, 1999.
NOW THEREFORE, the parties hereto agree as follows:
1. Purchaser agreed to enter into a one-year contract with AvTel.
2. Seller will reimburse Purchaser monthly for the difference between the
cost of long distance provided by AvTel and the cost of long distance that
the third party carrier could have provided long distance to Purchaser.
The amount of the reimbursement shall be calculated by multiplying the
interstate minutes by $.007 and the intrastate minutes by $.022. The sum
of such amount shall be referred to as the Reimbursement Amount.
3. Purchaser shall reduce the amount of commissions due Seller under
Amendment No. 1 by the Reimbursement Amount.
4. On July 31, 1999, the Purchaser's contract with AvTel shall terminate. At
such time the Seller's commitment to reimburse the Purchaser the
Reimbursement Amount also terminates, regardless if Purchaser renews its
contract with Avtel or not.
All other terms and conditions of the Agreement will remain in full force and
effect.
SELLER: SPECIAL INVESTMENT RISKS, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary
PURCHASER: UICI
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President
EXECUTION COPY
AMENDMENT NO. 4 TO
SALE OF ASSETS AGREEMENT
This Amendment No. 4 to the Sale of Assets Agreement, dated March 3, 1997,
is entered into this 1st day of August 2003, by and among Special investment
Risks, Inc., a Nevada corporation (successor to United Group Association, Inc.)
("Seller"), and UICI, a Delaware corporation ("Purchaser").
WHEREAS, Seller and Purchaser have previously entered into that certain
Sale of Assets Agreement dated March 3, 1997, as amended by Amendments Nos. 1, 2
and 3 thereto (as amended, the "Asset Sale Agreement"), and the transactions
contemplated thereby were effective as of January 1, 1997;
WHEREAS, the parties have completed a review of the amounts of renewal
commissions that have been paid to Seller through December 31, 2002 pursuant to
the terms of the Asset Sale Agreement, which review revealed several terms of
the Asset Sale Agreement requiring correction and/or clarification;
WHEREAS, pursuant to the terms of the Asset Sale Agreement, SLR has been
heretofore entitled to receive a percentage of all renewal commissions on all
products sold by UGA - Association Field Services, a division of The MEGA Life
and Health Insurance Company ("UGA") or its agents;
WHEREAS, both parties agree that it would be mutually beneficial to
simplify the calculation of renewal commissions to be paid pursuant to the terms
of the Asset Sale Agreement in the future and, accordingly, the parties intend,
in accordance with the terms of this Amendment No. 4, to change the measure of
the renewal commissions payable under the Asset Sale Agreement to a percentage
of commissionable premiums solely with respect to insurance policies sold by UGA
or its agents.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the Seller and the Purchaser hereby agree as follows:
1. Amendment of Asset Sale Agreement.
1.1. Purchaser and Seller acknowledge and agree that it was their
mutual intent that Seller would receive a renewal commission with respect
to all products, whether insurance or otherwise, sold on and after
December 31, 1996 by UGA or its agents. In addition, effective January
1, 1997, Purchaser acquired New United Agency ("NUA") in accordance with
the terms of a Stock Purchase Agreement dated March 3, 1997. Purchaser and
Seller acknowledge and agree that it was their mutual intent that any
products sold by NUA or its agents after December 31, 1996 would be
included in the computation of the renewal commissions due Seller pursuant
to the terms of the Asset Sale Agreement. Seller has not been entitled to
receive, and is not otherwise entitled to receive, a renewal commission on
products sold by any other marketing agency of the Purchaser or any other
marketing agency of any affiliate of the Purchaser.
1.2. Purchaser and Seller agree that, effective for all periods
commencing on or after the Effective Date (as such term is hereinafter
defined), the renewal commission due Seller will be calculated as a
percentage of total commissionable renewal premium revenue collected by
UICI on only insurance products sold by UGA, rather than as a percentage
of the commissions received by UGA on total renewals. In particular,
Purchaser and Seller hereby amend the Asset Sale Agreement as follows:
1.2.1. For all periods commencing on or after the Effective
Date, Purchaser shall pay to Buyer 120 basis points (1.20%) times
the UGA Commissionable Renewal Premium Revenue (as such term is
hereinafter defined) collected in such period. It is agreed and
understood that the payment to be made hereunder in the amount of
1.20% of UGA Commissionable Renewal Premium Revenue has been
designed to and will take into account the renewal commissions
originally intended to be paid on other, non-insurance, products.
Purchaser shall make such payment to Seller on a monthly basis on or
before the 20th day of each calendar month based on the calculation
of the UGA Commissionable Renewal Premium Revenue for the
immediately preceding calendar month. Payments shall be made by
check payable to Seller at the office of Seller hereinafter
designated in Section 6.3 hereof.
1.2.2. For purposes of the foregoing Section 1.2.1, the
following capitalized terms shall have the meanings assigned to them
below:
"Effective Date" shall mean October 1, 2003.
"UGA Commissionable Renewal Premium Revenue" shall mean, for any
period, the commissionable renewal premium revenue collected by UICI
with respect to such period on insurance products sold by UGA on
which commissions are paid to UGA or to the agents of UGA.
2. Asset Sale Agreement in Effect. Unless and to the extent amended or
modified hereby, the Asset Sale Agreement shall be and remain in full force and
effect.
3. Obligation to Survive Sale or Transfer of UGA. It is agreed and
understood that it is the intent of the parties that UICI's obligation hereunder
to pay to SIR a percentage of UGA Commissionable Renewal premium revenue as
provided in Section 1.2.1 shall survive (a) a sale or other transfer by UICI of
all or a part of UGA, (b) an assignment by UICI to an unaffiliated third party
of the agency contracts of all or a portion of the agents associated with UGA,
and/or (c) a change in control of UICI, provided, further, in each such case,
that UICI and SIR or their successor and assigns agree to execute and deliver an
appropriate amendment to the Asset Sale Agreement (which execution and delivery
will not be unreasonably withheld by either party hereto) to assure that the
economic terms of the arrangement created hereby remain unaffected in all
material respects.
4. Mutual Release of Claims. Each of Seller and Purchaser agrees to
irrevocably and unconditionally release and hold the other party harmless with
respect to all charges, claims and liabilities arising under the Asset Sale
Agreement through the Effective Date.
5. Annual Review. No less frequently than annually and more frequently as
required, Seller and Purchaser agree to review the terms of this Agreement and
the calculation of UGA Commissionable Renewal Premium Revenue to mutually assure
themselves that the intent of the parties as expressed hereunder is not
frustrated in any material respect.
6. UICI Related Party Transaction. This Agreement and the transaction
contemplated hereby constitute a "related party transaction" in accordance with
policies and procedures established by the Board of Directors of UICI. UICI
represents and warrants that, at a meeting of its Board of Directors held on
July 29, 2003, a majority of the outside disinterested directors approved this
Agreement and the transactions contemplated hereby.
7. General Provisions.
7.1. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of Seller and Purchaser and their respective
successors and assigns.
7.2. Entire Agreement; Amendments. This Agreement may not be
amended, modified or supplemented in any respect except by a subsequent
written agreement executed by the party affected thereby.
7.3. Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be by
hand-delivery, certified or registered mail; return receipt requested,
telex, telecopier, or courier to the parties set forth below. Such notices
shall be deemed given: at the time delivered by hand, if personally
delivered; at the time received, if sent certified or registered mail;
when return receipt is received by the sender, if telexed; when
confirmation of transmission is received by the sender, and if sent by
courier, the third business day after timely delivery to the courier.
If to Seller:
Specialized Investment Risks, Inc.
C/o JFO Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to Purchaser:
UICI
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
7.4. Execution in Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original agreement, but all of which together shall constitute one and the same
instrument.
7.5. Titles and Headings. Titles and headings to sections herein are for
purposes of reference only, and shall in no way limit, define, or otherwise
affect the provisions herein.
7.6. Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Texas. SIR hereby submits to the exclusive jurisdiction of the Texas courts
for the purposes of any injunctive relief arising out of or relating to the
Agreement. SIR irrevocably waives, to the fullest extent permitted by law, any
objection he may now or hereafter have to venue of any injunctive proceeding or
arbitration proceeding.
7.7. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision or application of this Agreement that can be given effect without the
invalid or unenforceable provision or application.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 4
as of the date first above written.
UICI
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
ITS: V.P.
SPECIALIZED INVESTMENT RISKS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Partner