ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Asset Purchase Agreement" or "Agreement") is
made and entered into effective this ___ day of December, 2002, by and among
Acadian Life Insurance Company, a Louisiana insurance corporation ("XXXX"), and
Acadian Financial Group, Inc., a Louisiana corporation ("AFG" and collectively
with XXXX referred to as "Seller") and Security National Life Insurance Company,
a Utah insurance corporation ("Security National Life") and Security National
Financial Corporation, a Utah corporation ("Security National" and collectively
with Security National Life referred to as "Buyer").
WITNESSETH:
WHEREAS, Buyer and Seller have entered into a Coinsurance Agreement (the
"Coinsurance Agreement"), pursuant to which Seller and Buyer will agree to
reinsure all of the assumed liabilities relating only to policies with certain
reinsured policies as defined in the Coinsurance Agreement; and
WHEREAS, upon approval of Coinsurance Agreement by the Louisiana and Mississippi
Insurance Departments, certain insurance business and operations of Seller as
set forth herein will be transferred to Buyer; and
WHEREAS, in connection with this Agreement, Seller desires to sell to Buyer, and
Buyer desires to purchase from Seller certain tangible and intangible assets as
described below (the "Assets") of Seller, as set forth in more detail below; and
WHEREAS, Buyer further agrees to assume certain obligations of Seller, as set
forth in more detail below;
NOW, THEREFORE, in consideration of the mutual and reciprocal covenants and
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by all parties,
Seller and Buyer hereby agree as follows:
1. Purchase of Computer Hardware. The parties acknowledge that Seller is
in the possession of computer hardware listed and described on
Schedule A attached hereto and incorporated herein by reference (the
"Computer Hardware"). For a period of sixty (60) days following
Closing, Buyer shall have the right to purchase all or part of the
Computer Hardware for a price not to exceed $13,000. If Buyer elects
to purchase all or part of the Computer Hardware, then at the
completion of said purchase, Seller shall transfer and convey to Buyer
all of Seller's right, title and interest in and to the Computer
Hardware purchased by Buyer. Buyer hereby acknowledges that all of the
Computer Hardware is purchase in "as is" condition and that none of
the Computer Hardware is under manufacturer or other warranty, except
as specifically described on Schedule A. At the Closing of any such
Computer Hardware purchase, Seller shall deliver to Buyer a Xxxx of
Sale, without warranty, and Buyer shall deliver to Seller the Purchase
price set forth in Section 5, below. 1.
2. Purchase of Computer Software.
2.1 Licensed Software. The parties acknowledge that Seller currently holds
a license from International Business Machines ("IBM") for certain
software utilized in the maintenance of Seller's general ledger
accounting records, for use on Seller's AS400 computer (the "Licensed
Software"). At Closing, Seller shall assign and transfer to Buyer and
Buyer shall assume from Seller, all of Seller's rights and obligations
in and to the Licensed Software.
2.2 Owned Software. The parties acknowledge that, in addition to the
Licensed Software, Seller is also in the possession of other software,
developed by employees or contractors of either Gulf National Life
Insurance Company or Seller and utilized by Seller in accounting for
premiums received, reserve computations, and for other purposes (the
"Owned Software"). For a period of sixty (60) days following Closing,
Buyer shall have the right to purchase all or part of the Owned
Software for a price not to exceed $75,000. If Buyer elects to
purchase all or part of the Owned Software, then at the completion of
said purchase, Seller shall transfer and assign to Buyer all of
Seller's right, title and interest in and to the Owned Software
purchased by Buyer. Buyer hereby acknowledges that such transfer shall
be without any warranty, including, but not limited to any warranty of
fitness for a particular purpose.
2.3 Transfer of Software Rights. At Closing, Seller shall deliver to Buyer
an Assignment of all rights of Seller in and to the Licensed Software
and the Owned Software, without warranty, and Buyer shall deliver to
Seller the purchase price set forth in Section 5, below.
3. Purchase of Furniture and Equipment. At Closing, Seller shall transfer
and convey to Buyer, and Buyer shall purchase from Seller, all
furniture, equipment and other personal property listed and described
on Schedule B attached hereto and incorporated herein by reference
(the "Furniture and Equipment"). At Closing, Seller shall deliver to
Buyer a Xxxx of Sale, without warranty, and Buyer shall deliver to
Seller the purchase price set forth in Section 5, below. Buyer
acknowledges that the Furniture and Equipment are purchased in "as is"
condition.
4. Purchase of Name. The parties acknowledge that Seller is an insurance
corporation organized and existing under the laws of the State of
Louisiana, and that Seller uses the name "Gulf National Life Insurance
Company." Except as set forth in Schedule C attached hereto, promptly
following Closing, Seller shall assign and transfer to Buyer, and
Buyer shall purchase and acquire from Seller, all of Seller's right,
title and interest in the name "Gulf National Life Insurance Company,"
including the right to use the words "Gulf National Life" alone or as
a part of any other trade name, as well as the logo "GNL." At Closing,
Seller shall deliver to Buyer an Assignment of Seller's rights in the
name "Gulf National Life Insurance Company," without warranty, and
Buyer shall deliver to Seller the purchase price set forth in Section
5, below. This paragraph shall not prevent the continued use by Seller
following the Closing of the name Gulf National Benefits Association
and its marketing and collection agent, Gulf National Mississippi
Benefits, LLC, which Seller represents and warrants will not be
offering any funeral insurance products. 1.
5. Purchase Price. The purchase price for the Computer Hardware, the
Licensed Software, the Owned Software, the Furniture and Equipment,
and the name, shall be as set forth below, and shall be payable in
cash at Closing:
Computer Hardware $13,000.00
Licensed Software $ 10.00
Owned Software $75,000.00
(Unamortized cost)
Furniture and Equipment $ 10.00
Name $ 100.00
6. Sublease of Real Property. At Closing Seller shall sublease to Buyer
or an affiliate of Buyer, and Buyer or an affiliate shall sublease
from Seller, that certain real property located at 0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxxx (the "Real Property"), currently
subleased by Seller from Xxxxxxxxx Investment Company, GP, for
Lakeover Partnership, LP pursuant to the terms of that certain Lease
entered into on or about August 26, 1998 (the "Lease"). The duration
of the term of the sublease to be entered into between Seller and
Buyer (or Buyer's affiliate) shall be identical to the remaining term
of the Lease, as amended by that certain letter agreement dated
April 2, 2001. Such sublease shall provide for the assumption by Buyer
of all obligations of Seller under the terms of the Lease, and shall
vest in Buyer all rights of Seller in and to the use and possession of
the Real Property.
7. Assignment and Assumption of Certain Agreements and Arrangements.
7.1 Mortimer Agency Agreement. The parties acknowledge that Gulf National
Life Insurance Company and Xxxxxx X. Xxxxxxxx entered into an Agency
Agreement on or about August 26, 1997 (the "Mortimer Agency
Agreement"), a true and correct copy of which is attached hereto as
Schedule D and incorporated herein by reference. On June 15, 2001,
Gulf National Life Insurance Company assigned all of its right, title
and interest in and to the Mortimer Agency Agreement to Seller. At
Closing, Seller shall assign and transfer to Buyer, and Buyer shall
assume from Seller, all of Seller's right, title and interest in and
to the Mortimer Agency Agreement, and Seller shall designate Buyer as
the successor to Seller pursuant to the terms of Paragraph 7 of the
Mortimer Agency Agreement.
7.2 Agreements with Xxxxxx X. Xxxxxxx, XX.
(a) Xxxxxxx Non-Compete Agreement. The parties acknowledge that Gulf
National Life Insurance Company and Xxxxxx X. Xxxxxxx, XX entered
into an Agreement Not to Compete on or about January 30, 1998
(the "Xxxxxxx Non-Compete Agreement"), a true and correct copy of
which is attached hereto as Schedule E and incorporated herein by
reference. On June 15, 2001, Gulf National Life Insurance Company
assigned all of its rights and obligations under the Xxxxxxx
Non-Compete Agreement to Seller. At Closing, Seller shall assign
to Security National Life, and Security National Life shall
assume from Seller, all of Seller's rights and obligations under
the Xxxxxxx Non-Compete Agreement. Pursuant to the provisions of
Paragraph 6(d) of the Xxxxxxx Non-Compete Agreement, Buyer hereby
specifically agrees to be bound by all of the terms of the
Xxxxxxx Non-Compete Agreement, from and after the date of
Closing.
(b) Xxxxxxx Stock Purchase Agreement. The parties acknowledge that
Gulf National Life Insurance Company and Xxxxxx X. Xxxxxxx, XX
entered into an Agreement to Purchase Corporate Stock on or about
January 30, 1998 (the "Xxxxxxx Stock Purchase Agreement"), a true
and correct copy which is attached hereto as Schedule F and
incorporated herein by reference. At Closing, Seller shall assign
to Buyer, and Buyer shall assume Seller's rights and obligations
pursuant to the Xxxxxxx Stock Purchase Agreement, including, but
not limited to, Seller's obligations to maintain an office in
Columbus, Mississippi on the terms and conditions and for the
period of time set forth in the Xxxxxxx Stock Purchase Agreement.
7.3 Xxxxxx Agreements.
(a) Xxxxxx Agency Agreement. The parties acknowledge that Gulf
National Life Insurance Company and Xxxxxxxxx Xxxxxx, et al.
entered into an Agency Agreement on or about November 5, 1998
(the "Xxxxxx Agency Agreement"), a true and correct copy of which
is attached hereto as Schedule G and incorporated herein by
reference. At Closing, Seller shall assign and transfer to Buyer,
and Buyer shall assume from Seller, all of Seller's right, title
and interest in and to the Xxxxxx Agency Agreement, and Seller
shall designate Buyer as the successor to Seller pursuant to the
terms of Paragraph 7 of the Xxxxxx Agency Agreement.
(b) Xxxxxx Non-Compete Agreement. The parties acknowledge that Seller
and Xxxx X. Xxxxxx and Xxxxxxxxx Xxxxxx entered into an Agreement
Not to Compete on or about November 5, 1998 (the "Xxxxxx
Non-Compete Agreement"), a true and correct copy of which is
attached hereto as Schedule H and incorporated herein by
reference. On June 15, 2001, Gulf National Life Insurance Company
assigned all of its rights and obligations under the Xxxxxx
Non-Compete Agreement to Seller. At Closing, Seller shall assign
to Buyer, and Buyer shall assume from Seller, all of Seller's
rights and obligations under the Xxxxxx Non-Compete Agreement.
Pursuant to the provisions of Paragraph 6(d) of the Xxxxxx
Non-Compete Agreement, Buyer hereby specifically agrees to be
bound by all of the terms of the Xxxxxx Non-Compete Agreement,
from and after the date of Closing.
(c) Xxxxxx Trust Rollover Agreement. The parties acknowledge that
Seller and Xxxx X. Xxxxxx, Colonial Chapel, Inc. and Brookhaven
Funeral Home, Inc. entered into an Agreement to Purchase Group
Master Insurance Policies and to Establish Agency Relationship on
or about October 26, 1998 (the "Xxxxxx Trust Rollover
Agreement"). On June 15, 2001, Gulf National Life Insurance
Company assigned all of its rights and obligations under the
Xxxxxx Trust Rollover Agreement to Seller. At Closing, Seller
shall assign to Buyer, and Buyer shall assume from Seller all of
Seller's rights and obligations under the Xxxxxx Trust Rollover
Agreement, including, but not limited to, Seller's obligations to
maintain trust funds in a banking institution selected by Xxxx X.
Xxxxxx or his corporate affiliates, pursuant to Paragraph 2 of
the Xxxxxx Trust Rollover Agreement.
7.4 Billing Arrangements with Certain Funeral Homes. The parties acknowledge
that Seller currently performs certain billing functions for and on behalf
of Xxxxxx-Xxxxxxxx Funeral Home, in Hattiesburg, Mississippi, Memory Chapel
Funeral Home in Laurel, Mississippi and Xxxxx Xxxxxx Agency in Columbia,
Mississippi, on a monthly basis, at no charge. The parties further
acknowledge that no written agreements are in existence with respect to
these billing services performed by Seller. Buyer agrees, from and after
the date of Closing, to continue performing such services for and on behalf
of Xxxxxx-Xxxxxxxx Funeral Home, Memory Chapel Funeral Home and Xxxxx
Xxxxxx Agency, for so long as each such entity remains an agent of Buyer,
with respect to the sales of any insurance product.
7.5 Funeral Home Trust Agency Agreement. The parties acknowledge that Gulf
National Life Insurance Company has entered into Agency Agreements with (a)
Deposit Guaranty National Bank, now known as AmSouth Bank, on or about July
23, 1991; (b) Peoples Bank of Biloxi, on or about January 29, 1990; (c)
Trustmark National Bank, on or about November 27, 1989; and The Peoples
Bank of Biloxi, on or about December 21, 1998 (collectively the "Funeral
Home Trust Fund Agency Agreements"), as amended by certain Addenda to
Agency Agreements entered into or to be entered into between Seller and
each such bank, true and correct copies of all of which are attached hereto
as composite Schedule I and incorporated herein by reference. On June 15,
2001, Gulf National Life Insurance Company transferred all of its interest
in the Funeral Home Trust Fund Agency Agreements to Seller. Among other
provisions, each Agency Agreement provides that the respective bank will
invest certain trust assets received from funeral homes in policies of
insurance issued by Seller; that Seller will issue policies and/or
annuities to such bank; and that all policies issued by Seller shall earn
at least a guaranteed rate of interest of at least 4%. At Closing, Seller
shall assign and transfer to Buyer, and Buyer shall assume from Seller, all
of Seller's right, title and interest in and to the Funeral Home Trust Fund
Agency Agreement, and Buyer shall assume from Seller all of Seller's
obligations thereunder.
7.6 Capital Mutual Insurance Company ("CMIC"). Buyer acknowledges that Gulf
National Life Insurance Company consummated an assumption reinsurance
transaction with CMIC, effective January 1, 2001, pursuant to which
transaction Gulf National Life Insurance Company paid to CMIC a ceding fee
of $143,500 (the "CMIC Ceding Fee"). Seller represents that the insurance
business of CMIC is included within the insurance business of Seller
transferred to Buyer under the Coinsurance Agreement.
7.7 Indemnification. Seller shall indemnify and hold Buyer harmless from and
against any and all claims, liabilities, damages and demands (including
expenses and reasonably attorney's fees) resulting from any breach by
Seller of any of its obligations under any of the agreements referenced to
in this Section 7, occurring or arising prior to Closing. Buyer shall
likewise indemnify and hold Seller harmless from and against any and all
claims, liabilities, damages and demands (including expenses and reasonable
attorney's fees) resulting from any breach by Buyer of any of its
obligations under any of the agreements referred to in this Section 7,
occurring or arising from and after the Closing, all of which agreements
are hereby specifically assumed by Buyer.
8. Agreement Not to Compete. For a period of five (5) years from and after the
date of Closing, Seller agrees that it shall not, within the State of
Mississippi, (i) engage, either directly or indirectly, in the sale of
industrial life insurance, other funeral insurance, pre-need contracts,
ordinary life insurance, life insurance trusts, credit life and credit
accident and health insurance, property and casualty insurance, annuities,
or any similar or related products or services for or on behalf of any
company or other entity, other than Buyer, without the prior written
consent of Buyer; or (ii) own or otherwise participate financially in any
business, firm, partnership, corporation or other entity, whether as an
employee, officer, director, agent, security holder, creditor, consultant,
or otherwise, that sells or underwrites, or issues any policies of
industrial life insurance, other funeral insurance, pre-need contracts,
ordinary life insurance, life insurance trusts, credit life and credit
accident and health insurance, property and casualty insurance, annuities,
or any other similar or related products or services, or engages in any
activity relating in any way to the issuance, sales or servicing of
insurance policies, without the prior written consent of Buyer. This
Agreement shall not be deemed to prohibit Seller from investing in any
entity in which Seller holds less than 5% of the equity ownership thereof.
Additionally, at Closing, Seller agrees to deliver to Buyer separate
covenants not to compete, on the same terms as set forth hereinabove,
executed by Xxxxxxxx X. X'Xxxx, Xx., Xxxxx X'Xxxxx Xxxxxx, Xxxxxxx X.
X'Xxxxx, Xxxxxxx O'Xxxxx Xxxx, and Xxxxxxxx X'Xxxxx. This paragraph shall
not prevent Seller from continuing its "Funds in a Flash" insurance
factoring program in the state of Mississippi.
9. Representations. Warranties and Agreements of Seller and Shareholder.
Seller represents, warrants and agrees, as of the date hereof, that:
9.1 Organization and Good Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Louisiana, with full corporate power and authority to conduct its business
as such business is now being conducted, and has all requisite corporate
power and authority to execute and perform this Agreement and the
transactions contemplated hereby. Seller is qualified to do business in all
states where the failure to be so qualified would have a material adverse
effect on the Assets.
9.2 No Violation: No Consents. Seller has taken or will take prior to Closing
all necessary or appropriate action to enable it to enter into, execute,
deliver and perform this Agreement and the transactions contemplated
hereby. The execution and the performance of this Agreement, and the
consummation of the transactions contemplated hereby, will not violate any
provision of the Articles of Incorporation or Bylaws of Seller, or, to the
best knowledge of Seller, violate or result in the breach of any term or
provision of or constitute a default or accelerate maturities under any
loan or any other similar agreement, instrument, indenture, mortgage, deed
of trust, or other restriction to which Seller is a party or by which any
of Seller's property is bound.
9.3 Validity of Agreement. This Agreement and the transactions contemplated
hereby have been, or shall have been prior to Closing, duly authorized and
approved by the Board of Directors and the shareholders of Seller, and this
Agreement has been duly executed and delivered by Seller and is the legal,
valid and binding obligation, enforceable in accordance with its terms, of
Seller. No other proceedings are necessary to authorize this Agreement and
the transactions contemplated hereby, or the performance or compliance by
Seller with any of the terms, provisions or conditions hereof.
9.4 Assets. (a) Seller has good and marketable title to all the Assets,
including the Computer Hardware, Licensed Software, Owned Software, and
Furniture and Equipment. All personal property is in good working order and
operating condition and is free and clear of all liens, security interests,
mortgages, deeds of trust, pledges, conditional sales contracts, charges,
leases, claims, administrative orders or decrees or encumbrances whatsoever
(except as disclosed in Schedule 9.4(A)). To the best knowledge of Seller,
all the Assets are in compliance with all applicable laws and governmental
regulations. All of the Assets are in the possession of Seller or its
customers and, if in the possession of customers, are held pursuant to
binding agreements (whether written or oral) obligating the customer to
return or reimburse Seller for such property.
(b) All real property owned by, leased to or otherwise occupied by
Seller for use in the conduct of the business (the "Real
Property") is listed on Schedule 9.4(B). To the best knowledge of
Seller, the present use of each parcel of Real Property is in
compliance with all applicable zoning ordinances (or variances
therefrom) and other applicable government regulations, and there
does not exist any notice of any uncorrected violation of any
housing, building, safety, fire or other ordinance or applicable
governmental regulation. Except for assessments not yet due and
payable, Seller is not liable for any unpaid assessments for any
public improvements, whether as owner or lessee of any Real
Property, nor has Seller received any notice from any appropriate
governmental authority of intention to make any public
improvement for which Seller may be assessed directly or by
reason of a leasehold interest or otherwise. The Real Property is
free and clear of all liens and free and clear of all easements,
restrictions, building encroachments and other matters disclosed
by an accurate survey of the premises, which would have a
material adverse effect on the value of any of such properties or
the use of any such property in the manner that it is currently
being used. All leases for any of the Real Property subject to a
lease (the "Real Property Leases") are listed in Schedule 9.4(C).
No underground tanks currently or formerly used for the storage
of any gas or petroleum products are present at the Real Property
and if any such tanks previously existed and were removed, they
were removed in accordance with applicable law.
9.5 Inventories. All inventories of Seller are useable in the ordinary course,
have been recorded in amounts not in excess of the lower of cost paid by
Seller for such items or the market value thereof, and are good and
merchantable and readily saleable in the ordinary course of Seller's
business.
9.6 Taxes. Within the times and in the manner prescribed by law, Seller has
filed all federal, state and local tax returns and reports required by law
to have been filed by it, and has paid all taxes, assessments, and
penalties due and payable by it. There are no federal, state or local tax
liens (other than a lien for property taxes not delinquent) against any of
the Assets, nor are there any overdue federal, state or local taxes with
respect to any of the Assets. At Closing, all taxes and other assessments
and levies which Seller is required by law to withhold or collect, shall
have been duly withheld and collected, and if due, shall be paid over to or
deposited with the proper governmental authorities.
9.7 Litigation. Except as disclosed in Schedule 9.7, neither Seller nor any
employees or officers of Seller is a party to any pending or threatened
litigation or administrative investigation or proceedings which would
materially and adversely affect the Assets, nor, to the best knowledge of
Seller, is there any basis therefor. To the best knowledge of Seller, no
complaints or charges of unlawful conduct have been made against Seller or
any employees or officers of Seller that relate in any way to the Assets.
Buyer is not assuming any liability with respect to any pending or
threatened litigation or administrative investigation or proceeding or with
respect to any such complaints or charges of unlawful conduct.
9.8 Compliance with Laws. To the best knowledge of Seller, the Assets are in
compliance in all material respects with all judgments, decrees,
injunctions, orders, writs, rulings, laws, ordinances, statutes, rules,
regulations and other requirements of all federal, state and local
governmental, administrative and judicial bodies and authorities (the
"Legal Requirements"). Seller has not received any notice of any
uncorrected violation of any such Legal Requirements. All Real Property,
and the use and occupancy thereof, are, to the best knowledge of Seller, in
compliance with all Legal Requirements and all applicable leases and
insurance requirements. The Real Property has not been used by Seller, any
third party acting at the request or direction of Seller (a "Directed Third
Party") nor, to the best knowledge of Seller, any other third party, for
the generation, manufacture, storage or disposal of, and there has not been
transported to or from the Real Property by Seller, any Directed Third
Party or, to the best knowledge of Seller, any other third party, any
Hazardous Substances or Wastes (as those terms are hereinafter defined) in
violation of any Legal Requirements; there are no Hazardous Substances or
Wastes present on the Real Property except in compliance with all Legal
Requirements; there has been no use of the Real Property by Seller, any
Directed Third Party or, to the best knowledge of Seller, any other third
party, that may, under any federal, state or local law or regulation,
require any closure or cessation of the use of the Real Property or impose
upon Seller, its successors or assigns any monetary obligations; Seller has
not been identified by any governmental agency or individual in any pending
or threatened action, litigation, proceeding or investigation as a
responsible party or potentially responsible party for any liability for
disposal or releases of any Hazardous Substances or Wastes, no lien or
superlien has been recorded, asserted or , to the best knowledge of Seller,
threatened against the Real Property for any liability in connection with
any environmental contamination; the Real Property has not been listed on
either the National Priorities List, as defined in CERCLA, or any state
listing of hazardous sites; and the Real Property is in compliance with all
environmental laws. For the purposes hereof, "Hazardous Substances" shall
mean any flammables, explosives, radioactive materials, asbestos,
ureaformaldehyde, hazardous wastes, toxic substances or any other elements
or compounds designated as a "hazardous substance", "pollutant" or
"contaminant" in the environmental laws or any other Legal Requirements;
and "Wastes" shall mean any hazardous wastes, residual wastes, solid wastes
or other wastes as those terms are defined in the environmental laws or any
other Legal Requirements.
9.9 Absence of Undisclosed Liabilities. There are no liabilities of Seller that
have not been disclosed to Buyer which could materially and adversely
affect the Assets.
9.10 Knowledge. For purposes of this Agreement, the term "to the best knowledge
of Seller" or similar knowledge or awareness qualifiers shall be understood
to refer to all matters that are known or, in the exercise of reasonable
business judgment, should be known to Seller. For purposes hereof, Seller
shall be deemed to have knowledge of all acts and circumstances regarding
Seller, the Assets and the Real Property that are known or, in the exercise
of reasonable conduct, should be known by Seller's officers, directors, or
senior level management.
10. Representations, Warranties and Agreements of Buyer. Buyer hereby
represents, warrants and agrees, as of the date hereof, that:
10.1 Organization and Good Standing. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Utah, with full
corporate power and authority to conduct its business as such business is
now being conducted, and has requisite corporate power and authority to
execute and perform this Agreement and the transactions contemplated
hereby.
10.2 No Violation: No Consents. Buyer has taken or will take prior to Closing
all necessary or appropriate action to enable Buyer to enter into, execute,
deliver and perform this Agreement. The execution and the performance of
this Agreement, and the consummation of the transactions contemplated
hereby, will not violate any provision of the Articles of Incorporation or
Bylaws of Buyer, or, to the best knowledge of Buyer, violate or result in
the breach of any term or provision of, or constitute a default or
accelerate maturities under any loan or other similar agreement,
instrument, indenture, mortgage, deed of trust, or other restriction to
which Buyer is a party or by which any of Buyer's property is bound.
10.3 Validity of Agreement. This Agreement and the transactions contemplated
hereby have been, or shall have been prior to Closing, duly authorized and
approved by the Board of Directors of Buyer, and this Agreement has been
duly executed and delivered by Buyer and is the legal, valid and binding
obligation, enforceable in accordance with its terms, of Buyer. No other
proceedings are necessary to authorize this Agreement and the transactions
contemplated hereby, or the performance or compliance by Buyer with any of
the terms, provisions or conditions hereof.
10.4 Absence of Undisclosed Liabilities. There are no liabilities of Buyer that
have not been disclosed to Seller which could materially and adversely
affect the business of Buyer.
10.5 Disclosure. No representation or warranty by Buyer herein or in any
statement, certificate, schedule or document furnished or to be furnished
by Buyer to Seller pursuant hereto or in connection with the transactions
contemplated hereby contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact necessary to
make the statements contained herein or therein not misleading.
10.6 Knowledge. For purposes of this Agreement, the term "to the best knowledge
of Buyer" or similar knowledge or awareness qualifiers shall be understood
to refer to all matters that are known or, in the exercise of reasonable
business judgment, should be known to Buyer. For purposes hereof, Buyer
shall be deemed to have knowledge of all acts and circumstances regarding
Buyer that are known or, in the exercise of reasonable conduct, should be
known by Buyer's officers, directors, or senior level management.
11. Conditions Precedent. Each parties obligations hereunder are subject to the
following conditions precedent, each of which conditions must be satisfied
prior to Closing:
11.1 Regulatory Approvals. Each party's obligations to close and to perform
pursuant to this Agreement shall be subject to prior approval by any
applicable regulatory agencies, of the Reinsurance Agreement.
11.2 Closing of Reinsurance Agreement. The Closing of the transactions
contemplated by this Agreement shall occur simultaneously with the Closing
of the Coinsurance Agreement, as set forth therein, and neither party shall
have any obligations to close hereunder until the occurrence of the Closing
of the transactions contemplated by the Coinsurance Agreement.
12. Notices. Any notice or other communications required or permitted hereunder
shall be sufficiently given if delivered in person or sent by registered or
certified mail, postage prepaid, addressed as follows to the following
addresses, or such other address as shall be furnished in writing by any
such party, and such notice or communications shall be deemed to have been
given as of the date so delivered and mailed:
If to Seller:
Acadian Life Insurance Company
000 Xxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx Xxxxxx, Chairman
And also to:
Acadian Financial Group, Inc.
000 Xxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx Xxxxxx, Chairman
If to Buyer:
Security National Life Insurance Company
0000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx, President
And also to:
Security National Financial Corporation
0000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx, President
13. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Utah.
14. Binding Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and assigns.
15. Public Announcements. All parties hereby agree that no party shall make any
public announcement of this transaction, prior to Closing, except with the
prior consent of the other parties.
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SELLER:
ACADIAN LIFE INSURANCE COMPANY
By:________________________________________
Its:________________________
ACADIAN FINANCIAL GROUP, INC.
By:________________________________________
Its:________________________
BUYER:
SECURITY NATIONAL LIFE INSURANCE COMPANY
By:________________________________________
Its:________________________
SECURITY NATIONAL FINANCIAL CORPORATION
By:________________________________________
Its:________________________
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