Exhibit 10.1
EXECUTION DRAFT
================================================================================
ASSET PURCHASE AGREEMENT
BY AND AMONG
INSURANCE PLUS AGENCY II, INC.,
YALE INTERNATIONAL INSURANCE AGENCY, INC.,
THE STOCKHOLDER OF THE SELLERS
ACCEPTANCE INSURANCE AGENCY OF ILLINOIS, INC.
AND
FIRST ACCEPTANCE CORPORATION
DATED AS OF JANUARY 12, 2006
================================================================================
THIS DOCUMENT IS NOT INTENDED TO CREATE, AND WILL NOT BE DEEMED TO CREATE,
A LEGALLY BINDING OR ENFORCEABLE OFFER OR AGREEMENT OF ANY TYPE OR NATURE,
UNLESS AND UNTIL IT IS EXECUTED AND DELIVERED BY EACH PARTY HERETO. UNTIL SO
EXECUTED AND DELIVERED, THIS DOCUMENT IS INTENDED SOLELY TO FACILITATE
DISCUSSIONS AMONG THE PARTIES. THE PROVISIONS CONTAINED HEREIN ARE SUBJECT TO
CHANGE BASED ON THE RESULTS OF THE PURCHASER'S ONGOING DUE DILIGENCE REVIEW OF
THE SELLERS.
TABLE OF CONTENTS
(not a part of this Agreement)
PAGE
----
ARTICLE I DEFINITIONS.................................................... 1
1.1 Definitions...................................................... 1
1.2 Other Definitional Provisions.................................... 5
1.3 Cross Reference of Other Definitions............................. 6
ARTICLE II PURCHASE AND SALE; ASSUMPTION OF CERTAIN LIABILITIES;
CLOSING............................................................... 7
2.1 Purchase and Sale................................................ 7
2.2 Closing Transactions............................................. 11
2.3 Performance Payments............................................. 12
ARTICLE III CONDITIONS TO CLOSING........................................ 14
3.1 Conditions to the Purchaser's Obligations........................ 14
3.2 Conditions to the Sellers' Obligation............................ 16
ARTICLE IV REPRESENTATIONS AND WARRANTIES CONCERNING THE
SELLER AND THE STOCKHOLDER............................................ 17
4.1 Incorporation, Organization and Corporate Power.................. 17
4.2 Authorization of Transactions.................................... 17
4.3 Capitalization................................................... 18
4.4 Subsidiaries; Investments........................................ 18
4.5 Absence of Conflicts............................................. 18
4.6 Financial Statements and Related Matters......................... 18
4.7 Absence of Undisclosed Liabilities............................... 18
4.8 No Material Adverse Effect....................................... 19
4.9 Absence of Certain Developments.................................. 19
4.10 Assets........................................................... 20
4.11 Title to Properties.............................................. 21
4.12 Taxes............................................................ 22
4.13 Contracts and Commitments........................................ 23
4.14 Proprietary Rights............................................... 24
4.15 Litigation; Proceedings.......................................... 25
4.16 Brokerage........................................................ 25
4.17 Governmental Licenses and Permits................................ 26
4.18 Employees........................................................ 26
4.19 Employee Benefit Matters......................................... 26
4.20 Insurance........................................................ 27
4.21 Affiliate Transactions........................................... 28
4.22 Compliance with Laws............................................. 28
4.23 Environmental Matters............................................ 28
4.24 Limitation on Warranties......................................... 29
ARTICLE V REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER........ 29
5.1 Incorporation, Organization and Corporate Power.................. 29
-i-
5.2 Authorization of Transaction..................................... 29
5.3 No Violation..................................................... 29
5.4 Governmental Authorities and Consents............................ 29
5.5 Litigation....................................................... 30
5.6 Brokerage........................................................ 30
5.7 Solvency......................................................... 30
ARTICLE VI INDEMNIFICATION AND RELATED MATTERS........................... 30
6.1 Survival......................................................... 30
6.2 Indemnification.................................................. 31
10.9 Indemnification Exclusive Remedy................................. 35
ARTICLE VII ADDITIONAL AGREEMENTS........................................ 36
7.1 Continuing Assistance............................................ 36
7.2 Tax Matters...................................................... 36
7.3 Press Releases and Announcements................................. 37
7.4 Further Transfers................................................ 37
7.5 Transition Assistance............................................ 37
7.6 Expenses......................................................... 38
7.7 Exclusivity...................................................... 38
7.8 Books and Records................................................ 38
7.9 Noncompetition, Nonsolicitation and Confidentiality.............. 38
7.10 Employees........................................................ 41
7.11 Seller's Name Change............................................. 41
7.12 Allocation of Purchase Price..................................... 41
7.13 Third Party Consents............................................. 42
7.14 Insurance........................................................ 42
7.15 Bulk Sales....................................................... 43
ARTICLE VIII MISCELLANEOUS............................................... 43
8.1 Amendment and Waiver............................................. 43
8.2 Notices.......................................................... 43
8.3 Binding Agreement; Assignment.................................... 44
8.4 Severability..................................................... 45
8.5 No Strict Construction........................................... 45
8.6 Construction..................................................... 45
8.7 Captions......................................................... 45
8.8 Entire Agreement................................................. 46
8.9 Counterparts..................................................... 46
8.10 Governing Law.................................................... 46
8.11 Parties in Interest.............................................. 46
8.12 Guaranty......................................................... 46
-ii-
INDEX OF SCHEDULES
Terminated Leases Schedule Schedule 1.1
Assumed Contracts Schedule Schedule 2.1(c)
Fixed Assets Schedule Schedule 2.1(a)(xiv)
Pro-Ration Schedule Schedule 2.2
Prepayment Schedule Schedule 2.1(e)
Proprietary Rights Schedule Schedule 4.14(a)
Contracts Schedule Schedule 4.13(a)
Retained Assets Schedule Schedule 2.1(b)(iii)
Conflicts Schedule Schedule 4.5
Financial Statements Schedule Schedule 4.6
Developments Schedule Schedule 4.8, 4.9
Leases Schedule Schedule 4.11(b); 4.11(c)
Assets Schedule Schedule 4.10
Taxes Schedule Schedule 4.12
Litigation Schedule Schedule 4.15
Brokerage Schedule Schedule 4.16
Permits Schedule Schedule 4.17
Employees Schedule Schedule 4.18
Benefit Plans Schedule Schedule 4.19(a)
Insurance Schedule Schedule 4.20
Affiliated Transactions Schedule Schedule 4.21
Governmental Authorities and Consents Schedule 5.4
Excluded Computer Software Schedule Schedule 2.1(b)(xii)
-iii-
INDEX OF EXHIBITS
Exhibit A............................ Form of Escrow Agreement
Exhibit B............................ Form of New Leases
Exhibit C............................ Form of Transition Services Agreement
-iv-
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of January
12, 2006, by and among Insurance Plus Agency II, Inc., an Illinois corporation
("Insurance Plus"), Yale International Insurance Agency, Inc., an Illinois
corporation ("Yale" and together with Insurance Plus, the "Sellers"),
Xxxxxxxxxxx Xxxxx, the sole stockholder of the Sellers and the "Stockholder"),
Acceptance Insurance Agency of Illinois, Inc., an Illinois corporation (the
"Purchaser") and First Acceptance Corporation, a Delaware corporation
("Parent"). The Sellers, the Stockholder, Purchaser and Parent are referred to
herein collectively as the "Parties" and individually as a "Party."
WHEREAS, the Stockholder owns beneficially and of record 100% of the
issued and outstanding shares of capital stock of the Sellers;
WHEREAS, the Sellers are engaged in the business of operating retail
insurance agencies to market, sell, distribute and service private automobile
insurance products (the "Business"); and
WHEREAS, upon the terms and subject to the conditions set forth in
this Agreement, the Purchaser desires to acquire from the Sellers, and the
Sellers desire to sell to the Purchaser, all of the Sellers' business, assets
and properties (operating as a going concern) constituting the Business, as more
specifically described in this Agreement.
WHEREAS, Purchaser is a wholly-owned direct subsidiary of USAuto
Holdings, Inc., which is a wholly-owned direct subsidiary of Parent.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. For purposes hereof, the following terms, when used
herein with initial capital letters, shall have the respective meanings set
forth herein:
"Affiliated Group" means an affiliated group as defined in Section
1504 of the Code (or any similar combined, consolidated or unitary group defined
under state, local or non-U.S. Tax law).
"Agreement" means this Asset Purchase Agreement, including all
Exhibits and Schedules hereto, as it may be amended from time to time in
accordance with its terms.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks are authorized or required to close under the laws of
the United States.
"Cash" means cash, cash equivalents and marketable securities
(including, without limitation, all money market accounts, mutual fund accounts
and repurchase agreements).
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Environmental and Safety Requirements" means whenever in effect all
federal, state, local and foreign statutes, regulations, ordinances and similar
provisions having the force or effect of law, all judicial and administrative
orders and determinations, all contractual obligations and all common law and
civil law concerning public health and safety, worker health and safety,
pollution or protection of the environment, including all such standards of
conduct, guidelines and bases of obligations relating to the presence, use,
production, generation, handling, transport, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, release, threatened
release, control, or cleanup of any hazardous materials, hazardous substances or
hazardous wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or by-products, asbestos,
mold, polychlorinated biphenyls (or PCBs), noise, odor or radiation.
"GAAP" means, at a given time, United States generally accepted
accounting principles, as consistently applied by Sellers to the extent such
application by Sellers did not violate United States generally accepted
accounting principles.
"Indebtedness" of any Person means, without duplication: (a)
indebtedness for borrowed money or for the deferred purchase price of property
or services in respect of which such Person is liable, contingently or
otherwise, as obligor or otherwise (other than trade payables and accrued
expenses incurred in the Ordinary Course of Business) and any commitment by
which such Person assures a creditor against loss, including contingent
reimbursement obligations with respect to letters of credit; (b) indebtedness
guaranteed in any manner by such Person, including a guarantee in the form of an
agreement to repurchase or reimburse; (c) obligations under capitalized leases
in respect of which such Person is liable, contingently or otherwise, as
obligor, guarantor or otherwise, or in respect of which obligations such Person
assures a creditor against loss; (d) indebtedness due to the Stockholder; and
(e) obligations under deferred compensation programs or for dividends owed.
"Insider" means, any officer, director, stockholder, partner or
Affiliate, as applicable, of the Sellers or any individual related by marriage
or adoption to any such individual or any entity in which any such Person owns a
5% or greater direct or indirect beneficial interest.
"Insurance Company" means any underwriter of private passenger
automobile insurance for whom the Sellers act as brokers prior to the Closing
for their insurance products and shall include, without limitation, Founders
Insurance Company, Delphi Casualty Company, Interstate Bankers Casualty Company,
American Country Insurance Company, Apollo Casualty Company, Ark Insurance
Agency Inc., American Service Insurance Company, Auto Help Line of America,
Inc., Safeway Insurance Company, United Automobile Insurance Company, American
Access Casualty Company, Unique Insurance Company, American Service Insurance
Company, Xxxxxxx Insurance Company and Universal Casualty Co.
-2-
"knowledge", "best knowledge" or words of similar import, when
referring to Sellers and/or the Stockholder, means the actual knowledge (without
independent investigation or imputed knowledge) of the Stockholder.
"Licenses" means all permits, licenses, franchises, certificates,
approvals and other authorizations of foreign, federal, state and local
governments or any department, agency or political subdivision thereof, or other
similar rights.
"Liens" means any mortgage, pledge, security interest, encumbrance,
prior claim, adverse claim, lien or charge of any kind (including, without
limitation, any conditional sale or other title retention agreement or lease in
the nature thereof), any sale of receivables with recourse against a Seller or
any Affiliate, any filing or agreement to file a financing statement as a debtor
under the Uniform Commercial Code or any similar statute other than to reflect
ownership by a third party of property leased to a Seller under a lease which is
not in the nature of a conditional sale or title retention agreement, or any
subordination arrangement in favor of another Person.
"Loss" means, with respect to any Person, any diminution in value,
damage, liability, demand, claim, action, cause of action, cost, damage,
deficiency, Tax, penalty, fine or other loss or expense, whether or not arising
out of a third party claim, including all interest, penalties, reasonable
attorneys' fees and expenses and all amounts paid or incurred in connection with
any action, demand, proceeding, investigation or claim by any third party
(including any governmental entity or any department, agency or political
subdivision thereof) against or affecting such Person or which, if determined
adversely to such Person, would give rise to, evidence the existence of, or
relate to, any other Loss and the investigation, defense or settlement of any of
the foregoing.
"Material Adverse Effect" on any Person means any event, circumstance,
change, occurrence, fact or effect (other than the entry by a Person into this
Agreement or the consummation of the transactions contemplated hereby or
otherwise in the Transaction Documents) that, individually or in the aggregate
with all other events, circumstances, changes, occurrences, facts and/or
effects, (i) is, or is reasonably likely to be, materially adverse to the
financial condition or operations of such Person or (ii) will, or is reasonably
likely to, prevent or materially delay such Person from performing its
obligations under this Agreement or the other Transaction Documents to which it
is a party.
"Net Premiums Written" means, with respect to any period, the sum of
all insurance premiums, towing and labor fees, bond card fees and motor club
membership fees and agency and all other fees associated with the provision of
such services (except for in each case, billing fees) written (net of
cancellations) by the Purchaser during such period that are (w) renewals of
existing insurance policies written by Sellers that are included in the Excluded
Assets, (x) for customers who contact the Purchaser by visiting any location
listed on the Leases Schedule, (y) for customers who contact the Purchaser by
telephone to any phone number previously advertised or listed for the Seller (or
advertised by Purchaser in replacement of such numbers), or (z) renewals of the
policies described in clauses (x) and (y) immediately above. Notwithstanding the
foregoing, if Purchaser voluntarily terminates the operation of any location
listed on the Leases Schedule (for the avoidance of doubt, termination by the
landlord of such
-3-
location shall not be deemed to be Purchaser's voluntary termination of
operations with respect to such location) during any time commencing on the
Closing Date and ending on the last day of the Performance Period, Net Premiums
Written for that location shall be no less than all Net Premiums Written for
that location in calendar year 2005.
"Ordinary Course of Business" means the manner that the Sellers have
conducted their business consistent with past practice (including, without
limitation, with respect to collection of accounts receivable, purchases of
supplies, payment of accounts payable and accrued expenses, levels of capital
expenditures and operation of cash management practices generally) over the past
three (3) years (but taking into account the expansion of the Business over that
time period).
"Permitted Encumbrances" means (i) statutory liens for Taxes not yet
due, (ii) statutory liens of landlords, liens of carriers, warehousemen,
mechanics and materialmen incurred in the ordinary course of business for sums
not yet due; (iii) liens incurred or deposits made in the Ordinary Course of
Business in connection with workers' compensation, unemployment insurance and
other types of social security or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return of money bonds and similar obligations; and
(iv) minor irregularities of title which do not in the aggregate materially
detract from the value or use of the Acquired Assets.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a trust, a
joint venture, an unincorporated organization, a governmental entity or any
department, agency or political subdivision thereof and any other entity.
"Proprietary Rights" means all of the following in any jurisdiction
throughout the world (i) patents, patent applications, patent disclosures and
industrial designs, (ii) trademarks, service marks, trade dress, trade or
business names, logos and corporate names (and all translations, adaptations,
derivations and combinations of the foregoing) and Internet domain names,
together with all of the goodwill associated with each of the foregoing, (iii)
copyrights and copyrightable works, including moral rights, (iv) mask works and
topographies, (v) registrations and applications for registration and renewal
for any of the foregoing, (vi) computer software (including, without limitation,
source code, executable code, data, data bases and documentation to the extent
within Seller's possession), and (vii) trade secrets and other confidential
information (including, without limitation, ideas, formulas, recipes,
compositions, inventions (whether patentable or unpatentable and whether or not
reduced to practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, financial and marketing plans and
customer and supplier lists and information).
"Subsidiary" means, with respect to any Person, any corporation a
majority of the total voting power of shares of stock of which is entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or any partnership, limited liability
-4-
company, association or other business entity a majority of the partnership or
other similar ownership interest of which is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that
Person or a combination thereof. For purposes of this definition, a Person is
deemed to have a majority ownership interest in a partnership, limited liability
company, association or other business entity if such Person is allocated a
majority of the gains or losses of such partnership, limited liability company,
association or other business entity or is or controls the managing director or
general partner of such partnership, limited liability company, association or
other business entity.
"Tax Returns" means returns, declarations, estimates, reports, claims
for refund, information returns and statements or other documents (including any
related or supporting schedules, statements or information) filed or required to
be filed in connection with the determination, assessment or collection of Taxes
of any party or the administration of any laws, regulations or administrative
requirements relating to any Taxes.
"Taxes" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties, capital stock,
franchise, profits, withholding, social security, unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
goods and services, ad valorem, alternative or add-on minimum, or other tax,
fee, assessment or charge of any kind whatsoever, including any interest,
penalty, or addition thereto, whether disputed or not.
"Terminated Leases" means each of the leases set forth on the
Terminated Leases Schedule attached hereto pursuant to which the Sellers lease
real estate from the Stockholder or his Affiliates, as the case may be, and that
will be replaced by the New Leases.
"Transaction Documents" means this Agreement, and all other
agreements, instruments, certificates and other documents to be signed or
delivered by any Party in connection with the transactions contemplated to be
consummated pursuant to this Agreement including, without limitation, the Escrow
Agreement and the New Leases.
"Treasury Regulations" means the United States Treasury Regulations
promulgated pursuant to the Code.
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Accounting Terms. Accounting terms which are not otherwise defined
in this Agreement have the meanings given to them under GAAP. To the extent that
the definition of the accounting term that is defined in this Agreement is
inconsistent with the meaning of such term under GAAP, the definition set forth
in this Agreement will control.
(b) "Hereof," etc. The terms "hereof," "herein" and "hereunder" and
terms of similar import are references to this Agreement as a whole and not to
any particular provision of this Agreement. Section, clause, Schedule and
Exhibit references contained in this Agreement
-5-
are references to Sections, clauses, Schedules and Exhibits in or to this
Agreement, unless otherwise specified.
(c) Successor Laws. Any reference to any particular Code section or
any other law or regulation will be interpreted to include any revision of or
successor to that section regardless of how it is numbered or classified.
1.3 CROSS REFERENCE OF OTHER DEFINITIONS. Each capitalized term listed
below is defined in the corresponding Section of this Agreement:
Term Section
---- -------
Acquired Assets 2.1(a)
Agreement Preface
Allocation 7.12
Applicable Limitation Date 6.1
Assumed Liabilities 2.1(c)
Business Recitals
Business Proprietary Rights 4.14(a)(iii)
Cap 6.2(b)(vi)
Closing Payment 2.1(e)
Closing 2.2(a)
Closing Date 2.2(a)
Closing Transactions 2.2(b)
COBRA 4.19(a)
Escrow Agreement 2.1(e)
Escrow Account 2.1(e)
ERISA 4.19(a)
Excluded Assets 2.1(e)
Excluded Liabilities 2.1(d)
Financial Statements 4.6
Indemnified Party 6.2(e)
Indemnified Party Controlled Proceeding 6.2(e)
Indemnifying Party 6.2(e)
Latest Balance Sheet 4.6
Leased Real Property 4.11(b)
Leases 4.11(b)
Noncompete Period 7.9(a)
Notice of Objection 2.3(d)
Notice of Disagreement 6.2(g)
Party Preface
Performance Payment 2.3(a)
Performance Payment Arbitration Firm 2.3(d)
Performance Payment Statement 2.3(d)
Performance Period 2.3(a)
Plans 4.19(a)
-6-
Purchase Price 2.1(e)
Purchaser Preface
Purchaser Confidential Information 7.9(c)(i)
Purchaser Parties 6.2(a)
Real Property 2.1(a)(iii)
Real Property Permits 4.11(e)
Sellers Preface
Seller Confidential Information 7.9(c)(ii)
Seller Parties 6.2(c)
Set-Off Amount 6.2(g)
Set-Off Notice 6.2(g)
Set-Off Right 6.2(g)
Stockholder Preface
Transition Services Agreement 3.1(i)
Unassigned Contracts 7.13
WARN 4.18
ARTICLE II
PURCHASE AND SALE; ASSUMPTION OF CERTAIN LIABILITIES; CLOSING
2.1 PURCHASE AND SALE.
(a) Acquired Assets. Upon the terms and subject to the conditions set
forth in this Agreement, at the Closing the Sellers shall sell, assign, transfer
and deliver to the Purchaser, and the Purchaser shall purchase, all properties,
assets, rights, titles and interests of every kind and nature, whether tangible
or intangible, whether real or personal and wherever located and by whomever
possessed, related to the Business and owned by the Sellers free and clear of
any and all Liens as of the Closing Date (other than Permitted Encumbrances),
except as set forth in Section 2.1(b) below (collectively, the "Acquired
Assets"), including, without limitation:
(i) all Proprietary Rights owned by either Seller or those
Proprietary Rights owned by Stockholder and used in the Business, including
without limitation those Proprietary Rights set forth on the Proprietary
Rights Schedule, together with all income, royalties, damages and payments
due or payable as of the Closing or thereafter, including, without
limitation, damages and payments for past, present or future infringements
or misappropriations thereof, the right to xxx and recover for past
infringements or misappropriations thereof and any and all corresponding
rights that, now or hereafter, may be secured throughout the world and all
copies and tangible embodiments of any such Proprietary Rights (in whatever
form or medium);
(ii) all of the Sellers' rights existing under leases (other than
the Terminated Leases), contracts, distribution arrangements, sales and
purchase agreements, other agreements and business arrangements associated
with or used by the Business, including, without limitation, all contracts
and agreements described on the Contracts
-7-
Schedule attached hereto, including renewal rights related thereto
(collectively "Contracts");
(iii) all real property leased by the Sellers, and all rights to
easements, servitudes, licenses, rights of way, permits and all
appurtenances to such leased property, including, without limitation, all
appurtenant rights in and to public streets, whether or not vacated
pursuant to the leases for that real property, held by Seller and
associated with or used by the Business (collectively, the "Real
Property");
(iv) all leasehold improvements and all equipment (including all
transportation and office equipment), fixtures, trade fixtures and
furniture owned by the Sellers wherever located, including, without
limitation, all such items which are located in any building, office or
other space leased, owned or occupied by the Sellers or used in connection
with the Real Property (the "Leasehold Improvements"), regardless of
whether title to the Leasehold Improvements is subject to reversion to the
landlord or other third party upon the expiration or termination of such
Lease (but subject to those provisions);
(v) all office supplies, other miscellaneous supplies, and other
tangible property of any kind wherever located, including, without
limitation, all property of any kind located in any building, office or
other space leased, owned or occupied by the Sellers or where any of the
Sellers' properties and assets may be situated that are used by or
associated with the Business;
(vi) all of the Sellers' claims, deposits, prepayments, prepaid
expenses, warranties, guarantees, refunds, causes of action, choses in
action, rights of recovery, rights of set-off and rights of recoupment of
any kind with respect to the Acquired Assets (other than Cash);
(vii) the right to receive and retain mail and other
communications relating to the Business;
(viii) all lists, records and other information pertaining to
accounts, personnel and referral sources, suppliers and customers (whether
past or current); and all books, ledgers, files, correspondence and
business records of every kind; whether evidenced in writing,
electronically (including, without limitation, by computer) or otherwise
(the "Business Records") associated with the Business, provided, however,
that Sellers may retain copies of and access to the Business Records
necessary to collect all accounts receivable and service accounts payable
of Sellers;
(ix) all advertising, marketing and promotional materials and all
other printed or written materials;
(x) all transferable permits, Licenses, franchises, orders,
registrations, certifications, variances and approvals from all permitting,
licensing, accrediting and certifying agencies, and the rights to all data
and records held by such permitting, licensing and certifying agencies
(collectively "Permits") and all non-transferable Permits pursuant to
Section 7.13;
-8-
(xi) all telephone numbers, including toll-free numbers, used by
the Sellers;
(xii) all goodwill as a going concern and all other intangible
properties;
(xiii) the names "Insurance Plus," "Yale International Insurance"
and "Yale Insurance;"
(xiv) the fixed assets listed on the Fixed Assets Schedule; and
(xv) except as specified in Section 2.1(b) below, all other
property owned by the Sellers, or in which any Seller has an interest on
the Closing Date in any way associated with the Business, including without
limitation, all personal computers, signage and fixed assets related to the
Business and any and all subsequent improvements or additions thereon
through the Closing Date.
(b) Excluded Assets. Notwithstanding Section 2.1(a) above, the
following assets are expressly excluded from the purchase and sale contemplated
hereby and, as such, are not Acquired Assets (collectively, the "Excluded
Assets"):
(i) all Cash;
(ii) all accounts and notes receivables (whether current or
noncurrent) (including, without limitation, all trade accounts receivable,
notes receivable from customers, vendor credits and accounts receivable
from employees and all other obligations from customers with respect to
sales of goods or services, whether or not evidenced by a note);
(iii) all tangible assets listed on the Retained Assets Schedule;
(iv) all monies and securities to be received by the Sellers from
the Purchaser;
(v) all rights of the Sellers under this Agreement;
(vi) all qualifications to do business as foreign corporations;
(vii) all arrangements with registered agents relating to foreign
qualifications;
(viii) all prepaid but unearned commissions;
(ix) all taxpayer and other identification numbers;
(x) all seals, minute books, stock transfer books, blank stock
certificates, tax returns and supporting documentation, tax refunds, bank
account records, accounts receivable records and all original accounting
records and other documents
-9-
relating to the organization, operation, maintenance, and existence of the
Sellers as corporations;
(xi) All contracts with the Insurance Companies, all lists and
records pertaining to Insurance Companies, and all rights associated with
such contracts, including, without limitation, the right to receive
commissions with respect to the right to commissions with respect to
endorsements to insurance policies written pursuant to such contracts
following the Closing; and
(xii) the computer software listed on the Excluded Computer
Software Schedule;
(xiii) all Business Records not associated with the Business,
including, without limitation, the Business Records of Highland Financial
Services, Inc., Interamerican Insurance Services, Inc., Interamerican
Insurance Agencies, Inc., and COMAR Industries, Inc., d/b/a COMAR
Properties;
(xiv) all assets exclusively used for the Stockholder's
commercial insurance business (including, without limitation, the provision
of insurance to taxi cab drivers);
(xv) all of the Sellers' claims, deposits, prepayments,
warranties, guarantees, refunds, causes of action, choses in action, rights
of recovery, rights of set-off and rights of recoupment of any kind with
respect to the Excluded Assets or the Excluded Liabilities;
(xvi) Sellers' polices of insurance and all rights in connection
therewith;
(xvii) Sellers' bank accounts, checkbooks and cancelled checks;
(xviii) deposits of Seller with, and refunds from, the Internal
Revenue Service and state taxing authorities (including the Illinois
Department of Revenue), including tax deposits, prepayments and estimated
payments; deposits made pursuant to, and refunds under, Section 444 or 7519
of the Code; and all rights to and in such deposits and refunds and all
interest upon such deposits and refunds;
(xix) The employees of Sellers (the status of which are addressed
in the Transition Services Agreement), together with all Plans, deposits
(including, without limitation, those regarding Tax withholding, FICA, FUTA
and unemployment insurance on behalf of such employees) and other assets
associated with such employees.
(c) Assumed Liabilities. Subject to Section 2.1(d) below, as
additional consideration for the Acquired Assets, at the Closing the Purchaser
will assume only the following specific liabilities and obligations of the
Sellers (the "Assumed Liabilities"): all post-Closing performance of the Sellers
pursuant to Contracts (other than Contracts that are not related to the Business
or are Excluded Assets or relate to Excluded Assets) and transferable Permits
and all other executory contracts, agreements, leases, permits and licenses of
the Sellers with respect to which Purchaser receives the benefits thereof
pursuant to Section 7.13. The
-10-
Purchaser will not assume any other liabilities or obligations of the Sellers,
including, for the avoidance of doubt, any liability or obligation relating to
or arising out of such Contracts and Permits as a result of (A) any transaction,
status, event, condition, occurrence or situation existing, occurring or arising
on or prior to the Closing Date, (B) any transaction, status, event, condition,
occurrence or situation existing, occurring or arising through any action or
failure to act by Sellers, their officers, directors, employees or agents or the
Stockholder on or prior to the Closing Date, (C) any breach of such Contracts
and Permits occurring on or prior to the Closing Date, (D) any violation of law,
breach of warranty, tort or infringement occurring on or prior to the Closing
Date, or (E) any related charge, complaint, action, suit, proceeding, hearing,
investigation, claim or demand.
(d) Excluded Liabilities. Except as set forth in Section 2.1(c) above,
the Purchaser shall not assume or become liable for, and shall not be deemed to
have assumed or have become liable for, any of the Sellers' liabilities and
obligations not expressly assumed by the Purchaser pursuant to Section 2.1(c)
above, whether accrued, absolute or contingent, whether known or unknown,
whether disclosed or undisclosed, whether due or to become due and whether
related to the Acquired Assets or otherwise, and regardless of when asserted,
including, without limitation (the "Excluded Liabilities"):
(i) any accounts payable or accrued expenses of the Sellers;
(ii) any Indebtedness of the Sellers;
(iii) any Taxes of the Sellers attributable to any Taxable
period;
(iv) any liability or obligation relating to the Excluded Assets;
and
(v) any liabilities or obligations arising from or relating to
the Acquired Assets or Sellers' operation of the Business prior to the
Closing Date or incurred by the Sellers in connection with the consummation
transactions contemplated by this Agreement.
(e) Purchase Price for Acquired Assets. The purchase price for the
Acquired Assets (the "Purchase Price") consists of the following (i) the payment
of $25,000,000.00 in cash at the Closing to the Sellers (the "Closing Payment"),
(ii) the payment of $65,380.00 in cash at closing to the Sellers representing
the amount of the prepayments and prepaid expenses set forth on the Prepayment
Schedule, (iii) the payment of $183,925.77, representing Purchaser's pro rata
share of the prepaid amounts set forth on the Pro-Rations Schedule, (iv) the
deposit by the Purchaser of $5,000,000 into an escrow account (the "Escrow
Account") governed by an Escrow Agreement substantially in form and substance as
Exhibit A attached hereto (the "Escrow Agreement"), (v) the assumption of the
Assumed Liabilities, and (vi) the payment of the Performance Payment, if any,
described in Section 2.3 of this Agreement. The Escrow Account shall be
available to satisfy any amounts owing to the Purchaser pursuant to Section
6.2(a).
2.2 CLOSING TRANSACTIONS.
-11-
(a) Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxxxx & Xxxxx
LLP, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, immediately following the
execution of this Agreement. The date and time of the Closing are herein
referred to as the "Closing Date."
(b) Closing Transactions. Subject to the conditions set forth in this
Agreement, the Parties shall consummate the following transactions (the "Closing
Transactions") on the Closing Date:
(i) the Stockholder shall cause the Sellers to, and the Sellers
shall convey to the Purchaser good and marketable title to all of the
Acquired Assets, free and clear of all Liens, and deliver to the Purchaser,
bills of sale, assignments of leases and contracts and all other
instruments of conveyance which are necessary or desirable to effect
transfer of the Acquired Assets, in form and substance reasonably
satisfactory to the Purchaser;
(ii) the Purchaser shall deliver to the Sellers such certificates
and instruments of assumption as are required in order for the Purchaser to
assume and Sellers and/or Stockholder to be released from the Assumed
Liabilities; and
(iii) the Sellers and the Purchaser, as applicable, shall deliver
the Transition Services Agreement and certificates and other documents and
instruments required to be delivered by or on behalf of such Party under
Article III.
(iv) the Purchaser shall pay the Purchase Price by (x) assuming
the Assumed Liabilities and (y) transferring immediately available funds to
Sellers (to an account or accounts designated by Sellers) the amounts set
forth in Sections 2.1(e)(i) and (ii), and transferring immediately
available funds to the agent under the Escrow Agreement the amount set
forth in Section 2.1(e)(iii).
2.3 PERFORMANCE PAYMENTS.
(a) Following the Closing and as additional consideration for the
Acquired Assets, Sellers shall be entitled to receive from the Purchaser
(subject to the terms and conditions set forth in this Section 2.3) additional
amounts based on the Business' performance during the twelve-month period
commencing February 1, 2006 and ending January 31, 2007 (the "Performance
Period"). The amount (if any) paid with respect to the Performance Period (the
"Performance Payment") shall be determined in accordance with this Section 2.3
and the payment of any Performance Payments shall otherwise be subject to
Section 6.2(g) hereof.
(b) If Net Premiums Written during the Performance Period is (A) equal
to or less than $30,000,000, the Performance Payment will be equal to $0, (B)
greater than $30,000,000 but less than $36,000,000, the Performance Payment with
respect to such Net Premiums Written will be equal to 66 2/3% of the amount by
which such Net Premiums Written exceeds $30,000,000 or (C) equal to or greater
than $36,000,000, the Performance Payment will
-12-
be equal to $4,000,000. In no event shall the Performance Payment made pursuant
to this Section 2.3 exceed $4,000,000.
(c) Within 20 days following the end of each month during the
Performance Period, the Purchaser shall deliver to the Stockholder an unaudited
statement which sets forth the Purchaser's calculation of Net Premiums Written
for such month and for the period from the beginning of the fiscal year to the
end of such month.
(d) Within 45 days following the last day of the Performance Period,
the Purchaser shall deliver to the Stockholder a statement (the "Performance
Payment Statement") that sets forth Net Premiums Written for the Performance
Period, together with the payment to Sellers of any Performance Payment due
pursuant to the Performance Payment Statement. During the 30-day period
immediately following the Stockholder's receipt of the Performance Payment
Statement, the Stockholder (and its agents) shall be permitted to review the
Purchaser's books and records and the Purchaser's working papers related to the
preparation of the Performance Payment Statement and determination of Net
Premiums Written for the Performance Period. The Performance Payment Statement
shall become final and binding upon the parties 30 days following Sellers'
Representative's receipt thereof, unless the Stockholder disputes the
calculation of Net Premiums Written set forth on the Performance Payment
Statement by delivering a notice of its objection (a "Notice of Objection") to
the Purchaser within 30 days following delivery of the Performance Payment
Statement. Any Notice of Objection delivered pursuant to this Section 2.3(d)
shall specify in reasonable detail the nature and dollar amount of any
disagreement so asserted and shall be delivered only if (and to the extent that)
the Stockholder reasonably and in good faith determines that Net Premiums
Written set forth on the Performance Payment Statement has not been determined
in accordance with the guidelines and procedures set forth in this Agreement and
the definition of Net Premiums Written. During the 30 days following delivery of
a Notice of Objection, the parties shall seek in good faith to resolve in
writing any differences which they may have with respect to the matters
specified in the Notice of Objection. At the end of the 30-day period referred
to above, the parties shall submit to the Oak Brook, Illinois office of Xxxxx
Xxxxxx and Company, LLC (the "Performance Payment Arbitration Firm") for review
and resolution of all matters (but only such matters) which were included in the
Notice of Objection, and the Performance Payment Arbitration Firm shall make a
final determination of Net Premiums Written in accordance with the guidelines
and procedures set forth in this Agreement. The parties will cooperate with the
Performance Payment Arbitration Firm during the term of its engagement. In
resolving any matters in dispute, the Performance Payment Arbitration Firm may
not assign a value to any item in dispute greater than the greatest value for
such item assigned by the Purchaser, on the one hand, or the Stockholder, on the
other hand, or less than the smallest value for such item assigned by the
Purchaser, on the one hand, or the Stockholder, on the other hand. The
Performance Payment Arbitration Firm's determination will be based solely on
presentations by the Purchaser and the Stockholder or their respective
representatives which are in accordance with the guidelines and procedures set
forth in this Agreement (i.e., not on the basis of an independent review). The
determination of Net Premiums Written shall become final and binding on the
parties on the date the Performance Payment Arbitration Firm delivers its final
resolution in writing to the parties (which final resolution shall be delivered
not more than 45 days following submission of such disputed matters), or
Purchaser and Stockholder otherwise jointly agree. Within two business days of
such final determination of the Performance Payment, Purchaser
-13-
shall pay Sellers any amounts of the Performance Payment not previously paid.
The costs and expenses of the Performance Payment Arbitration Firm shall (unless
otherwise provided herein) be allocated between the Purchaser, on the one hand,
and the Stockholder, on the other hand, based upon the percentage which the
portion of the contested amount not awarded to the Stockholder bears to the
Performance Payment, as determined by the Performance Payment Arbitration Firm.
(e) From the Closing Date until the termination of the Performance
Period, the Purchaser (or its Affiliates) shall not, without the prior written
consent of the Stockholder, (i) open any new locations within any of the
following Illinois counties: Xxxx County, Dupage County, Xxxx County, Lake
County, or Will County or (ii) breach any of its obligations with respect to the
rendering of services to the Business's existing customers pursuant to the terms
of the Transition Services Agreement.
ARTICLE III
CONDITIONS TO CLOSING
3.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligation of the
Purchaser to consummate the transactions contemplated by this Agreement is
subject to the satisfaction of the following conditions as of the Closing Date:
(a) The representations and warranties set forth in Article IV hereof
shall be true and correct in all material respects (except that the
representations and warranties which are qualified as to "materiality" or
"Material Adverse Effect" shall be true and correct in all respects) at and as
of the Closing Date as though then made and as though the Closing Date were
substituted for the date of this Agreement throughout such representations and
warranties;
(b) Each Seller and the Stockholder shall have performed and complied
with all of the covenants and agreements required to be performed by each of
them under this Agreement on or prior to the Closing;
(c) The purchase of the Acquired Assets by the Purchaser hereunder
shall not be prohibited by any applicable law or governmental regulation, shall
not subject the Purchaser to any penalty, liability or other onerous condition
under or pursuant to any applicable law or governmental regulation, and shall be
permitted by laws and regulations of the jurisdictions to which the Purchaser is
subject;
(d) No action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable judgment, decree, injunction, order or ruling would prevent the
performance of this Agreement or any of the transactions contemplated hereby,
declare unlawful the transactions contemplated by this Agreement, cause such
transactions to be rescinded or materially and adversely affect the right of the
Purchaser to own, operate or control the Acquired Assets or the Business, and no
judgment, decree, injunction, order or ruling shall have been entered which has
any of the foregoing effects;
-14-
(e) Payoff letters with respect to all of the Indebtedness of either
Seller or Highland Financial Services, Inc. secured by any of the Acquired
Assets outstanding as of the Closing, if any, and releases of any and all Liens
held by third parties against the Acquired Assets shall have been obtained, all
on terms reasonably satisfactory to the Purchaser;
(f) On or prior to the Closing Date, the Stockholder shall have
delivered to the Purchaser all of the following:
(i) a certificate from the Sellers and the Stockholder in a form
reasonably satisfactory to the Purchaser, dated the Closing Date, stating
that the preconditions specified in Sections 3.1(a) through (e), have been
satisfied;
(ii) certified copies of the resolutions of the Stockholder and
the Sellers' boards of directors approving the transactions contemplated by
this Agreement;
(iii) certificates of any state of the United States where each
of the Sellers are qualified to do business providing that such Seller is
in good standing; and
(iv) such other documents or instruments as the Purchaser may
reasonably request to effect the transactions contemplated hereby;
(g) the Purchaser and the Stockholder and/or his Affiliates, as the
case may be, shall have entered into New Leases, each substantially in the form
of Exhibit B attached hereto (the "New Leases"), covering each parcel of Real
Property owned or managed by Stockholder and/or his Affiliates and used in the
Business to replace each Terminated Lease;
(h) The Purchaser, the Sellers and the Stockholder shall have entered
into the Escrow Agreement and the Escrow Agreement shall be in full force and
effect, and shall not have been amended or modified, as of the Closing;
(i) The Purchaser, Parent, the Sellers and the other parties thereto
shall have entered into a Transition Services Agreement in form and substance
attached hereto as Exhibit C (the "Transition Services Agreement") and the
Transition Services Agreement shall be in full force and effect, and shall not
have been amended or modified, as of the Closing; and
(j) All proceedings to be taken by the Sellers, and the Stockholder in
connection with the consummation of the Closing Transactions and the other
transactions contemplated hereby and all certificates, instruments and other
documents required to be delivered by the Sellers, and the Stockholder to effect
the transactions contemplated hereby reasonably requested (including, without
limitation, the assignment by Stockholder of the items described in Section
2.1(a)(i) of this Agreement) by the Purchaser shall be reasonably satisfactory
in form and substance to the Purchaser.
Any condition specified in this Section 3.1 may be waived by the Purchaser;
provided that no such waiver shall be effective against the Purchaser unless it
is set forth in a writing executed by the Purchaser.
-15-
3.2 CONDITIONS TO THE SELLERS' OBLIGATION. The obligation of the
Sellers to consummate the transactions contemplated by this Agreement is subject
to the satisfaction of the following conditions as of the Closing Date:
(a) The representations and warranties set forth in Article V shall be
true and correct in all material respects at and as of the Closing Date as
though then made and as though the Closing Date were substituted for the date of
this Agreement throughout such representations and warranties;
(b) The Purchaser shall have performed and complied with all of the
covenants and agreements required to be performed by it under this Agreement on
or prior to the Closing;
(c) All governmental filings, authorizations and approvals that are
required for the transfer of the Acquired Assets to the Purchaser and the
consummation of the other transactions contemplated hereby shall have been duly
made and obtained on terms reasonably satisfactory to the Sellers;
(d) No action, suit, or proceeding shall be pending before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an unfavorable judgment,
decree, injunction, order or ruling would prevent the performance of this
Agreement or any of the transactions contemplated hereby, declare unlawful the
transactions contemplated by this Agreement, cause such transactions to be
rescinded or materially and adversely affect the right of the Purchaser to own,
operate or control the Acquired Assets, and no judgment, decree, injunction,
order or ruling shall have been entered which has any of the foregoing effects;
(e) On or prior to the Closing Date, the Purchaser shall have
delivered to the Sellers all of the following:
(i) a certificate from the Purchaser in a form reasonably
satisfactory to the Seller, dated the Closing Date, stating that the
preconditions specified in Sections 3.2(a) through (d), inclusive, have
been satisfied;
(ii) certificates of the state of Illinois providing that the
Purchaser is in good standing and a certificate of the state of Delaware
that Parent is in good standing;
(iii) certified copies of the resolutions of the Purchaser's and
Parent's board of directors approving the transactions contemplated by this
Agreement; and
(iv) such other documents or instruments as the Sellers may
reasonably request to effect the transactions contemplated hereby;
(f) The Purchaser, Parent, the Sellers and the other parties thereto
shall have entered into the Transition Services Agreement and such Transition
Services Agreement shall be in full force and effect, as of the Closing;
-16-
(g) The Purchaser and the Stockholder and/or his Affiliates, as the
case may be, shall have entered into the New Leases; and
(h) All proceedings to be taken by the Purchaser in connection with
the consummation of the Closing Transactions and the other transactions
contemplated hereby and all certificates, opinions, instruments and other
documents required to be delivered by the Purchaser to effect the transactions
contemplated hereby reasonably requested by the Sellers shall be reasonably
satisfactory in form and substance to the Sellers.
Any condition specified in this Section 3.2 may be waived by the Sellers;
provided that no such waiver shall be effective unless it is set forth in a
writing executed by the Sellers.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
CONCERNING THE SELLER AND THE STOCKHOLDER
As a material inducement to the Purchaser to enter into this Agreement, the
Sellers and the Stockholder hereby jointly and severally represent and warrant
that:
4.1 INCORPORATION, ORGANIZATION AND CORPORATE POWER. Each Seller is a
corporation duly incorporated, organized, validly existing and in good standing
under the laws of Illinois, which is the only jurisdiction in which they are
required to be qualified to do business. Each Seller has full power and
authority and all licenses, permits and authorizations necessary to own and
operate its properties and to carry on its business as now conducted. Correct
and complete copies of each Seller's certificate of incorporation and by-laws
have been furnished to the Purchaser, which documents reflect all amendments
made thereto at any time prior to the date of this Agreement. Correct and
complete copies of the minute books containing the records of meetings of the
stockholder and board of directors, the stock certificate books and the stock
record books of each Seller have been furnished to the Purchaser. No Seller is
in default under or in violation of any provision of its certificate of
incorporation or by-laws.
4.2 AUTHORIZATION OF TRANSACTIONS. The Stockholder and each of the
Sellers has full power and authority to execute and deliver this Agreement and
the other Transaction Documents to which they are a party and to consummate the
transactions contemplated hereby and thereby and to perform their obligations
hereunder and thereunder. The Stockholder and the boards of directors of each
Seller have duly approved the Transaction Documents to which the Stockholder and
the Sellers are a party and have duly authorized the execution and delivery of
this Agreement and such other Transaction Documents to which they are a party
and the consummation of the transactions contemplated hereby and thereby. No
other corporate proceedings on the part of the Stockholder or the Sellers are
necessary to approve and authorize the execution, delivery and performance of
this Agreement and the other Transaction Documents to which the Stockholder and
the Sellers are a party and the consummation of the transactions contemplated
thereby. All Transaction Documents to which the Stockholder and the Sellers are
a party have been duly executed and delivered by the Stockholder and each Seller
and constitute the valid and binding agreements of the Stockholder and the
Sellers, enforceable against the Stockholder and the Sellers in
-17-
accordance with their terms, except to the extent that the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, rehabilitation,
moratorium and similar laws now or hereafter in effect relating to creditors'
rights generally or general equitable principles.
4.3 CAPITALIZATION. Stockholder holds all authorized, issued and
outstanding capital stock of each Seller.
4.4 SUBSIDIARIES; INVESTMENTS. Neither Seller: (i) has any
Subsidiaries; nor (ii) owns or holds the right to acquire any shares of stock or
any other security or interest in any other Person.
4.5 ABSENCE OF CONFLICTS. Except as set forth on the Conflicts
Schedule attached hereto, the execution, delivery and performance of this
Agreement and the other Transaction Documents and the consummation of the
transactions contemplated hereby and thereby by each Seller and the Stockholder
do not and shall not (a) conflict with or result in any breach of any of the
terms, conditions or provisions of, (b) constitute a default under, (c) result
in a violation of, (d) give any third party the right to modify, cancel,
terminate or accelerate any obligation under, (e) result in the creation of any
Lien upon the Acquired Assets or (f) require any authorization, permit, consent,
approval, exemption or other action by or any notice or declaration to, or
filing with, any court or administrative or other governmental body or agency or
other third party, under the provisions of the certificate of incorporation or
by-laws of any Seller or any indenture, mortgage, lease, sublease, license, loan
agreement, franchise, permit, obligation or other agreement or instrument to
which any Seller, or the Stockholder is bound or affected, or any law, statute,
rule or regulation to which any Seller or the Stockholder is subject or any
judgment, order or decree to which any Seller, or the Stockholder is subject,
bound or affected or any of the Acquired Assets are subject, bound or effected.
4.6 FINANCIAL STATEMENTS AND RELATED MATTERS. Attached hereto as the
Financial Statements Schedule are copies of (i) the unaudited balance sheet of
each Seller as of June 30, 2005 (the "Latest Balance Sheet") and the related
income statement for the six-month period then ended and (ii) the unaudited
balance sheets and statements of income of each Seller for the fiscal year ended
December 31, 2004. Each of the foregoing financial statements (including in all
cases the notes thereto, if any) (the "Financial Statements") is consistent with
each of the Seller's books and records, and presents fairly in all material
respects each Seller's revenues (excluding Premium Finance Income), Salaries,
Commissions and Rent expenses for such periods.
4.7 ABSENCE OF UNDISCLOSED LIABILITIES. To the knowledge of the
Sellers and the Stockholder, the Sellers do not have any debts, obligations or
liabilities (whether accrued, absolute, contingent, direct, indirect, perfected,
inchoate, unliquidated or otherwise, whether or not known, whether due or to
become due and regardless of when asserted) arising out of transactions entered
into at or prior to the
-18-
Closing, or any transaction or series of transactions, action or inaction at or
prior to the Closing or any state of facts existing at or prior to the Closing
regardless of when any such liability or obligation is asserted, except (i)
obligations under the Contracts and Permits (but none of which relates to any
breach of contract, breach of warranty, tort, infringement, or violation of law
or arose out of any charge, complaint, action, suit, proceeding, hearing,
investigation, claim or demand), (ii) liabilities which have arisen after the
date of the Latest Balance Sheet in the Ordinary Course of Business or otherwise
in accordance with the terms and conditions of this Agreement, and (iii)
liabilities which have arisen after the date of the Latest Balance Sheet in the
Ordinary Course of Business or otherwise in accordance with the terms and
conditions of this Agreement (none of which is a liability for breach of
contract, breach of warranty, tort or infringement or a claim or lawsuit or an
environmental liability) and (iv) as set forth on the Latest Balance Sheet.
4.8 NO MATERIAL ADVERSE EFFECT. Except as set forth on the attached
Developments Schedule, since the date of the Latest Balance Sheet, there has
been no Material Adverse Effect on any Seller.
4.9 ABSENCE OF CERTAIN DEVELOPMENTS. Except as set forth on the
Developments Schedule attached hereto or except as expressly contemplated by
this Agreement and the Transaction Documents, since July 1, 2005 none of the
Sellers, with respect to the Business, has:
(a) suffered any extraordinary loss, theft, damage, destruction or
casualty loss or waived any rights of material value, in excess of $100,000, to
its assets, whether or not covered by insurance or suffered any substantial
destruction of its books and records;
(b) discharged or satisfied any Lien or paid any material obligation
or liability, or incurred or become subject to any liabilities, except
liabilities incurred in the Ordinary Course of Business;
(c) mortgaged, pledged, charged or subjected any portion of its
properties or assets to any Lien;
(d) sold, leased, assigned or transferred (including, without
limitation, transfers to the Stockholder or any Insider) a portion of its
tangible assets, except for sales of insurance policies in the Ordinary Course
of Business, or canceled without fair consideration any material debts or claims
owing to or held by it;
(e) sold, assigned, licensed, transferred, abandoned or permitted to
lapse any Licenses or permits (including, without limitation, transfers to the
Stockholder or any Insider), which, individually or in the aggregate, are
material to the Business or any portion thereof or any Proprietary Rights or
other intangible assets owned by, issued to or licensed to it;
(f) disclosed any confidential information (other than pursuant to
agreements requiring the disclosure to maintain the confidentiality of and
preserving all of its rights in such confidential information) or received any
confidential information of any third party in violation
-19-
of any obligation of confidentiality or granted any license or sublicense of any
rights under or with respect to any Proprietary Rights;
(g) entered into, amended or terminated any material lease, contract,
agreement or commitment, or taken any other action or entered into any other
transaction other than in the Ordinary Course of Business;
(h) entered into any other material transaction, or materially changed
any business practice;
(i) made or granted, outside the Ordinary Course of Business, any
bonus or any wage, salary or compensation increase to any director, officer,
employee or sales representative, group of employees or consultant or made or
granted any increase in any employee benefit plan, program, policy or
arrangement, or amended or terminated any existing employee benefit plan or
arrangement or adopted any new employee benefit plan or arrangement or amended
or renegotiated any existing collective bargaining agreement or entered into any
new collective bargaining agreement or multiemployer plan;
(j) entered into any severance, termination, notice or change of
control agreement with any of its directors, officers and employees;
(k) made any other change in employment terms for any of its
directors, officers, and employees outside the Ordinary Course of Business;
(l) made any capital investment in, any loan to, or any acquisition of
the securities or assets of any other Person;
(m) other than in the Ordinary Course of Business, made any capital
expenditures or commitments for capital expenditures with an aggregate
outstanding amount of unpaid obligations and commitments in excess of $50,000;
(n) made any loans or advances to, or guarantees for the benefit of,
any Person;
(o) accelerated, terminated, modified or cancelled any contract,
lease, sublease, sublicense or any other agreement set forth on the attached
Contracts Schedule or Leases Schedule;
(p) accelerated or increased the rate of sales of insurance policies
to its customers outside of the Ordinary Course of Business; or
(q) committed to do any of the foregoing.
4.10 ASSETS. Except as set forth on the attached Assets Schedule, the
Sellers have good and marketable title to, or a valid leasehold interest in, the
properties and assets used by them, located on their premises or shown on the
Latest Balance Sheet or acquired thereafter, free and
-20-
clear of all Liens, and except for properties and assets disposed of in the
Ordinary Course of Business since the date of the Latest Balance Sheet. Except
as described on the Assets Schedule, the Sellers' buildings, equipment and other
tangible assets are in good operating condition, normal wear and tear excepted.
The Sellers own or lease all buildings, equipment, and other tangible assets
necessary for the conduct of the Business as presently conducted. Except for the
Excluded Assets and except as contemplated by the Transition Services Agreement,
the Acquired Assets constitute all of the assets and rights necessary for the
conduct of the Business as it is presently conducted. At the Closing, the
Sellers will convey good and marketable title to all of its real and personal
property and assets included within the Acquired Assets, free and clear of all
Liens (other than Permitted Encumbrances).
4.11 TITLE TO PROPERTIES.
(a) Owned Properties. The Sellers do not own any real property.
(b) Leased Properties. The Leases Schedule sets forth a list of all of
the leases and subleases (the "Leases") and each leased and subleased parcel of
real property in which the Sellers have an interest as a lessee or sub-lessee
(the "Leased Real Property"). Each of the Leases is in full force and effect and
the applicable Seller holds valid and existing rights as lessee or sub-lessee
under each of the Leases. The Sellers have delivered to the Purchaser true,
correct, complete and accurate copies of each of the Leases described in the
Leases Schedule. With respect to each Lease listed on the Leases Schedule: (i)
the Lease is valid, binding, enforceable (except to the extent that the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
rehabilitation, moratorium and similar laws now or hereafter in effect relating
to creditors' rights generally or general equitable principles) and in full
force and effect; (ii) except with respect to the Terminated Leases (which will
be replaced by the New Leases), the Lease will continue to be legal, valid,
binding, enforceable (except to the extent that the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, rehabilitation, moratorium
and similar laws now or hereafter in effect relating to creditors' rights
generally or general equitable principles) and in full force and effect on
identical terms following the Closing; (iii) no Seller or, to the knowledge of
any Seller or the Stockholder, any other party to the Lease is in breach or
default, and no event has occurred or no circumstance exists which, with notice
or lapse of time, would constitute such a breach or default or permit
termination, modification or acceleration under the Lease; (iv) no party to the
Lease has repudiated any provision thereof; (v) the Sellers' possession and
quiet enjoyment of the Leased Real Property under such Lease has not been
disturbed, there are no disputes, oral agreements, or forbearance programs in
effect as to any Lease; (vi) the Lease has not been modified in any respect,
except to the extent that such modifications are disclosed by the documents
delivered to the Purchaser; (vii) none of the Sellers has assigned, transferred,
conveyed, mortgaged, hypothecated, charged, deeded in trust or encumbered any
interest in or rights under the Lease; (viii) no security deposit or portion
thereof deposited with respect to such Lease has been applied in respect of a
breach or default under such Lease, which has not been re-deposited in full; and
(ix) the Sellers do not and will not in the future owe any brokerage commissions
or finders fees in respect of such Lease.
-21-
(c) Real Property Disclosure. Except as disclosed on the Leases
Schedule, there is no Real Property leased or owned by the Sellers used in the
Business.
(d) No Proceedings. There are no condemnation or expropriation
proceedings or other similar proceedings pending or, to the knowledge of any
Seller or the Stockholder, threatened, affecting any portion of the Real
Property and there exists no writ, injunction, decree, order, administrative
actions, or judgment outstanding, nor any litigation, pending or threatened,
relating to the ownership, lease, use, value, occupancy or operation by any
person of the Real Property.
(e) Permits. All certificates of occupancy, permits, licenses,
franchises, approvals and authorizations (collectively, the "Real Property
Permits") of all governmental authorities having jurisdiction over the Real
Property, required or appropriate to have been issued to the Sellers to enable
the Real Property to be lawfully occupied and used for all of the purposes for
which it is currently occupied and used have been lawfully issued and are, as of
the date hereof, in full force and effect. The Sellers have not received or been
informed by a third party of the receipt by it of any notice from any
governmental authority having jurisdiction over the Real Property threatening a
suspension, revocation, modification or cancellation of any Real Property Permit
and, to the knowledge of any Seller or the Stockholder, there is no basis for
the issuance of any such notice or the taking of any such action.
4.12 TAXES. Except as set forth on the attached Taxes Schedule, with
respect to all Taxes that are Assumed Liabilities:
(a) each Seller has timely filed all Tax Returns which are required to
be filed, and all such Tax Returns are true, complete and accurate in all
respects and have been prepared in compliance with applicable law;
(b) all Taxes due and payable by each Seller, whether or not shown on
a Tax Return, have been paid by such Seller and no Taxes are delinquent;
(c) no deficiency or proposed adjustment for any amount of Tax which
has not been settled or resolved has been proposed, asserted or assessed by a
taxing authority against any Seller, and none of the Sellers or the Stockholder
has knowledge that any such assessment or asserted Tax liability shall be made;
(d) there is no action, suit, taxing authority proceeding or audit now
in progress, pending or, to the knowledge of any Seller or the Stockholder,
threatened against or with respect to any Seller;
(e) the Sellers have not (i) waived any statute of limitations, (ii)
agreed to any extension of the period for assessment or collection or (iii)
executed or filed any power of attorney, in each case with respect to any Taxes
which waiver, agreement or power of attorney is currently in force;
-22-
(f) no claim has ever been made by a taxing authority in a
jurisdiction where the Sellers do not pay Taxes or file Tax Returns that any
Seller is or may be subject to Taxes assessed by such jurisdiction;
(g) each Seller has withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
creditor, independent contractor or other third party;
(h) the Taxes Schedule contains a list of states, territories and
jurisdictions (whether foreign or domestic) in which the Sellers are required to
file Tax Returns relating to their respective businesses;
(i) there are no Liens on any of the Acquired Assets (other than
Permitted Encumbrances) that arose in connection with a failure (or alleged
failure) to pay any Tax;
4.13 CONTRACTS AND COMMITMENTS.
(a) The Contracts Schedule contains a complete and correct list of all
contracts, agreements, commitments, arrangements, leases, licenses and
understandings to which any Seller is a party or by which any Seller is bound
that relate to the Business.
(b) Except as disclosed on the Contracts Schedule,
(i) to Seller's knowledge, no contract, agreement, commitment,
arrangement, lease, license or understanding that is required to be
disclosed on the Contracts Schedule has been breached or canceled by the
other party and there is no anticipated breach by any other party to any
contract, agreement, commitment, arrangement, lease, license or
understanding set forth on the Contracts Schedule,
(ii) no Insurance Company has indicated in writing or, to the
knowledge of Sellers or Stockholder, orally to any Seller or the
Stockholder that it shall stop or decrease or change the volume of business
done or commission rates with the Sellers or that it desires to renegotiate
its contract or current arrangement with the Sellers,
(iii) each Seller has performed all the obligations required to
be performed by it in connection with the contracts, agreements,
commitments, arrangements, leases, licenses or understandings required to
be disclosed on the Contracts Schedule and is not in default under or in
breach of any contract, agreement, commitment, arrangement, lease, license
or understanding required to be disclosed on the Contracts Schedule, and no
event has occurred which with the passage of time or the giving of notice
or both would result in a default or breach thereunder,
(iv) none of the Sellers has any present expectation or intention
of not fully performing any obligation pursuant to any contract, agreement,
commitment, arrangement, lease, license or understanding set forth on the
Contracts Schedule, and
-23-
(v) each contract, agreement, commitment, arrangement, lease,
license or understanding listed on the Contracts Schedule is valid,
binding, enforceable (except to the extent that the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, rehabilitation,
moratorium and similar laws now or hereafter in effect relating to
creditors' rights generally or general equitable principles) and in full
force and effect and will continue as such following the consummation of
the transactions contemplated hereby, and
(vi) to the Sellers' knowledge, none of the Sellers is a party to
any contract, agreement, commitment, arrangement, lease, license or
understanding which, individually or in the aggregate, could have a
Material Adverse Affect on any Seller.
(c) The Sellers have provided the Purchaser with a true and correct
copy of all written contracts, agreements, commitments, arrangements, leases,
licenses or understandings which are required to be disclosed on the Contracts
Schedule, in each case together with all amendments, waivers or other changes
thereto (all of which are disclosed on the Contracts Schedule). To Sellers'
knowledge, there are no oral contracts, agreements, commitments, arrangements,
leases, licenses or understandings, except as listed and described in the
Contracts Schedule.
4.14 PROPRIETARY RIGHTS.
(a) The attached Proprietary Rights Schedule contains a complete and
accurate list of all of the following that are owned by the Sellers:
(i) patented or registered Proprietary Rights and pending patent
applications and applications for registration of other Proprietary Rights;
(ii) unregistered trademarks, unregistered service marks, trade
or business names and corporate names; and
(iii) computer software
The Proprietary Rights Schedule also contains a complete and accurate list of
all licenses and other rights granted by the Sellers to any third party with
respect to any Proprietary Rights and all licenses and other rights granted by
any third party to the Sellers with respect to any Proprietary Rights, in each
case identifying the subject Proprietary Rights (other than so-called "off the
shelf" computer software). Except as set forth on the Proprietary Rights
Schedule, the Sellers own or have the right to use pursuant to a valid written
license, all Proprietary Rights set forth on the Proprietary Rights Schedule and
all other Proprietary Rights necessary for the operation of the Business as
presently conducted (collectively, the "Business Proprietary Rights").
(b) Except as set forth on the Proprietary Rights Schedule:
(i) none of the Sellers has infringed, misappropriated or
otherwise conflicted with, and the operation of the Business as currently
conducted does not infringe, misappropriate or otherwise conflict with, any
Proprietary Rights of any third
-24-
party, and none of the Sellers or the Stockholder are aware of any facts
which indicate a likelihood of any of the foregoing and none of the Sellers
or the Stockholder have received any notices regarding any of the foregoing
(including, without limitation, any demands or offers to license any
Proprietary Rights from any third party);
(ii) each Seller has taken all reasonably necessary and desirable
actions to maintain and protect all of the Business Proprietary Rights;
(iii) to the best of the Sellers' and the Stockholder's
knowledge, no third party has infringed, misappropriated or otherwise
conflicted with any of the Business Proprietary Rights and none of the
Sellers or any of the Stockholder are aware of any facts that indicate a
likelihood of any of the foregoing;
(iv) immediately subsequent to the Closing, the Business
Proprietary Rights will be owned by or available for use by the Purchaser
on terms and conditions identical to those under which the Sellers owned or
used the Business Proprietary Rights immediately prior to the Closing; and
(v) other than as set forth in any License Agreements for the
Proprietary Rights, none of the Sellers have agreed to indemnify any third
party for or against any interference, infringement, misappropriation or
other conflict with respect to any Proprietary Rights.
4.15 LITIGATION; PROCEEDINGS. Except as set forth on the attached
Litigation Schedule, there are no actions, suits, complaints, charges,
proceedings, hearings orders, investigations or claims pending or, to the
knowledge of any Seller or the Stockholder, threatened against or affecting any
Seller (or to the knowledge of any Seller or the Stockholder, pending or
threatened against or affecting any of the officers, directors or employees of
any of the Sellers with respect to the Business) or to which any Seller or the
Acquired Assets may be bound or affected, at law or in equity, or before or by
any municipal, foreign or governmental department, commission, board, bureau,
agency or instrumentality (including, without limitation, any actions, suits,
complaints, charges, proceedings or investigations with respect to the
transactions contemplated by this Agreement); nor have there been any such
actions, suits, proceedings, orders, investigations or claims pending against or
affecting any of the Sellers during the past three years; and none of the
Sellers are subject to any grievance arbitration proceedings under collective
bargaining agreements or otherwise or, to the knowledge of any Seller or the
Stockholder, any governmental investigations or inquiries. None of the Sellers
are subject to any judgment, order or decree of any court or other governmental
agency (or settlement enforceable therein), and none of the Sellers have
received any opinion or memorandum or legal advice from legal counsel to the
effect that they are exposed, from a legal standpoint, to any liability or
disadvantage which may be material to the Business and none of the Sellers are
engaged in any legal action to recover monies due it or for damages sustained by
them.
4.16 BROKERAGE.
-25-
Except for an agreement with Xxxxxxx, Xxxxxxx & Co., the fees or
similar compensation for which will be paid by the Stockholder, there are no
claims for brokerage commissions, finders' fees or similar compensation in
connection with the transactions contemplated by this Agreement based on any
arrangement or agreement made by or on behalf of any Seller or the Stockholder.
4.17 GOVERNMENTAL LICENSES AND PERMITS. The Permits Schedule attached
hereto contains a complete listing and summary description of all Licenses owned
or possessed by the Sellers or used by them in the conduct of their businesses.
Except as indicated on the Permits Schedule, the Sellers own or possess all
right, title and interest in and to all of the Licenses that are necessary to
conduct their businesses as presently conducted, including, without limitation,
all Licenses required under any federal, state or local law relating to (i) the
sale or placement of insurance and (ii) public health and safety, employee
health and safety, pollution or protection of the environment. The Sellers are
in compliance with the terms and conditions of such Licenses and have received
no notices that they are in violation of any of the terms or conditions of such
Licenses. The Sellers have taken all necessary action to maintain such Licenses.
No loss or expiration of any such License is threatened, pending or reasonably
foreseeable other than expiration in accordance with the terms thereof.
4.18 EMPLOYEES. Except as set forth on the Employees Schedule attached
hereto, to the knowledge of any Seller or the Stockholder, no key employee and
no group of employees or independent contractors of the Sellers has any plans to
terminate his, her or its employment or relationship as an independent
contractor with the Sellers. The Sellers have complied and remain in compliance
with all applicable laws relating to the employment of personnel and labor. None
of the Sellers are a party to or bound by any collective bargaining agreement,
nor have such parties experienced any strikes, grievances, work outages, unfair
labor practices claims; nor is any labor strike, dispute, work stoppage or
slowdown pending or threatened. None of the Sellers have engaged in any unfair
labor practice; nor is any complaint pending or threatened against any Seller.
None of the Sellers or the Stockholder has knowledge of any organizational
effort presently being made or threatened by or on behalf of any labor union
with respect to employees of the Sellers. Except as contemplated by this
Agreement and the Transition Services Agreement, none of the Sellers has
implemented any mass layoff of employees as such term is defined in the Worker
Adjustment Retraining and Notification Act of 1988, as amended ("WARN") or any
similar federal, state or local law, regulation or ordinance and no layoffs that
could implicate such laws or regulations will have been implemented before
Closing without advance notification to the Purchaser. There is no grievance or
arbitration proceeding pending which might have a Material Adverse Effect on the
Sellers or the Business.
4.19 EMPLOYEE BENEFIT MATTERS.
-26-
(a) Except as set forth on the Benefit Plans Schedule attached hereto,
with respect to current or former employees of the Sellers, none of the Sellers
maintain or contribute to or have any actual or potential liability with respect
to any (i) deferred compensation or bonus or retirement plans or arrangements,
(ii) qualified or nonqualified defined contribution or defined benefit plans or
arrangements which are employee pension benefit plans (as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), or (iii) employee welfare benefit plans (as defined in Section 3(1)
of ERISA), stock option or stock purchase plans, or any other material benefit
plans or programs whether in writing or oral and whether or not terminated.
Neither the Sellers nor any person or entity that could be treated as a single
employer with any of the Sellers pursuant to Section 414(b), (c), (m) or (o) of
the Code, (an "ERISA Affiliate") have ever contributed to any multiemployer
pension plan (as defined in Section 3(37) of ERISA), and neither the Sellers nor
any ERISA Affiliate have ever maintained or contributed to any defined benefit
plan (as defined in Section 3(35) of ERISA) or any plan subject to Section 412
of the Code or Section 302 of ERISA. The plans, arrangements, programs and
agreements referred to in the preceding two sentences are referred to
collectively as the "Plans." Neither the Sellers nor any ERISA Affiliate
maintains or contributes to any Plan which provides health, accident or life
insurance benefits to former employees, their spouses or dependents, other than
in accordance with Section 4980B of the Code ("COBRA").
(b) The Plans (and related trusts and insurance contracts) set forth
on the Benefit Plans Schedule comply in form and in operation with their terms
and the requirements of the applicable laws and regulations, including ERISA and
the Code. All contributions, premiums or payments which are due on or before the
Closing Date under each of the Plans set forth on the Benefit Plan Schedule have
been paid, and all contributions, premiums or payment which are related to the
period before the Closing Date but not yet due have been properly accrued. Each
Plan which is intended to be qualified under Section 401(a) of the Code (and its
related trust intended to qualify under Section 501(a) of the Code) is so
qualified and has received from the Internal Revenue Service a favorable
determination letter, and nothing has occurred since the date of such letter
that could adversely affect the qualified status of such Plan.
(c) With respect to each of the Plans, the Stockholder has furnished
to the Purchaser true and complete copies of (i) the plan documents, summary
plan descriptions and summaries of material modifications and other material
employee communications, (ii) the Form 5500 Annual Report (including all
schedules and other attachments).
(d) The Sellers have not incurred and have no reason to expect that
they will incur, any liability to the Pension Benefit Guaranty Corporation
(other than routine premium payments) or otherwise under Title IV of ERISA
(including any withdrawal liability) or under the Code with respect to any
employee pension benefit plan (as defined in Section 3(2) of ERISA) that any
Seller or any ERISA Affiliate maintains or ever has maintained or to which any
of them contributes, ever have contributed, or ever have been required to
contribute.
(e) Except as disclosed, there are no liabilities with respect to the
Plans or any ERISA Affiliate that could become a liability of the Purchaser in
connection with the transactions contemplated by this Agreement.
4.20 INSURANCE.
-27-
The Insurance Schedule attached hereto lists and briefly describes
each insurance policy maintained by each Seller and with respect to their
properties, assets and business to which such Seller has been a party, named
insured or otherwise a beneficiary of coverage, together with a claims history
for the past five years. All of such insurance policies are in full force and
effect, and the Sellers are not in default with respect to their obligations
under any such insurance policies and the Sellers have not been denied insurance
coverage. Except as set forth on the Insurance Schedule, the Sellers have no
self-insurance or co-insurance programs.
4.21 AFFILIATE TRANSACTIONS. Except as disclosed on the Affiliated
Transactions Schedule, the Terminated Leases or the Contracts Schedule, all as
attached hereto, no Insider is a party to any agreement, contract, commitment or
transaction with any Seller or which is pertaining to the business of the
Sellers or has any interest in any property, real or personal or mixed, tangible
or intangible, used in or pertaining to the Business.
4.22 COMPLIANCE WITH LAWS. Each Seller, each of their officers,
directors, agents and employees have complied with and are in compliance with
all applicable laws, regulations and ordinances of foreign, federal, state and
local governments and all agencies thereof which are applicable to the Business,
its business practices (including, but not limited to, the Sellers' having been
duly licensed (to the extent such licensing is required) to sell or place
insurance in the jurisdictions where, and at the time when, they did so) or any
owned or leased properties of the Sellers and to which the Sellers may be
subject, and no claims, notices, charges, complaints, actions, suits,
investigations proceedings and hearings have been received by any Seller or have
been filed, commenced or threatened against any Seller alleging a violation of
or liability or potential liability under any such laws or regulations, and the
Sellers have not received notice of any such violations.
4.23 ENVIRONMENTAL MATTERS. Each Seller has complied with and are in
compliance with all Environmental and Safety Requirements and has obtained and
complied with and is in compliance with all Licenses required by Environmental
and Safety Requirements for the operation of the Business, the ownership and use
of the Acquired Assets, and the occupation of the Real Property. None of the
Sellers have received any notice, report or information regarding any actual or
alleged violation, of any liability or potential liability arising under,
Environmental and Safety Requirements which relate to the Business, the Acquired
Assets or the Real Property. None of the Sellers has treated, stored, disposed
of, arranged for or permitted the disposal of, transported, handled,
manufactured or released any substance, including without limitation any
petroleum or hazardous substance, or owned or operated any property or facility
(and no such property or facility, including the Real Property is contaminated
by any such substance) so as to give rise to liabilities or obligations pursuant
to any Environmental and Safety Requirements. Without limiting the generality of
the foregoing, there is no asbestos containing material, mold, airborne
contaminants or underground storage tanks at any of the Real Property so as to
give rise to liabilities or obligations under Environmental and Safety
Requirements.
-28-
4.24 LIMITATION ON WARRANTIES. Except as expressly set forth in
Article IV and in the case of fraud or intentional misrepresentation, Seller
makes no express or implied warranty of any kind whatsoever, including, without
limitation, any representation as to physical condition or value of any of the
Acquired Assets or the future profitability or future earnings performance of
the Business. ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
ARTICLE V
REPRESENTATIONS AND WARRANTIES CONCERNING THE PURCHASER
As a material inducement to the Sellers to enter into this Agreement,
the Purchaser hereby represents and warrants to the Sellers that:
5.1 INCORPORATION, ORGANIZATION AND CORPORATE POWER. The Purchaser is
a corporation duly incorporated, organized, validly existing and in good
standing under the laws of the State of Illinois, and Parent is a corporation
duly incorporated, organized, validly existing and in good standing under the
laws of the State of Delaware, with full corporate power and authority to enter
into this Agreement and the other agreements contemplated hereby to which the
Purchaser is a party and perform its obligations hereunder and thereunder.
5.2 AUTHORIZATION OF TRANSACTION. The execution, delivery and
performance of this Agreement and the other agreements contemplated hereby to
which the Purchaser or Parent is a party have been duly and validly authorized
by all requisite corporate action on the part of the Purchaser and Parent, and
no other corporate proceedings on its part are necessary to authorize the
execution, delivery or performance of this Agreement. This Agreement
constitutes, and each of the other agreements contemplated hereby to which the
Purchaser or Parent is a party shall when executed constitute, a valid and
binding obligation of the Purchaser or Parent, enforceable in accordance with
their terms, except to the extent that the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, rehabilitation, moratorium and similar
laws now or hereafter in effect relating to creditors' rights generally or
general equitable principles.
5.3 NO VIOLATION. The Purchaser or Parent is not subject to or
obligated under its certificate of incorporation, its by-laws, any applicable
law, or rule or regulation of any governmental authority, or any agreement or
instrument, or any license, franchise or permit, or subject to any order, writ,
injunction or decree, which would be breached or violated by its execution,
delivery or performance of this Agreement and the other agreements contemplated
hereby to which the Purchaser or Parent is a party.
5.4 GOVERNMENTAL AUTHORITIES AND CONSENTS.
-29-
Except as disclosed on the Governmental Authorities and Consents
Schedule attached hereto, the Purchaser or Parent is not required to submit any
notice, report or other filing with any governmental authority in connection
with the execution or delivery by it of this Agreement and the other agreements
contemplated hereby to which the Purchaser or Parent is a party or the
consummation of the transactions contemplated hereby or thereby. No consent,
approval, license or authorization of any governmental or regulatory authority
or any other party or person is required to be obtained by the Purchaser or
Parent in connection with its execution, delivery and performance of this
Agreement and the other agreements contemplated hereby to which the Purchaser or
Parent is a party or the transactions contemplated hereby or thereby, including,
without limitation, the operation of the Business following the Closing Date.
5.5 LITIGATION. There are no actions, suits, proceedings or orders
pending or, to the best knowledge of the Purchaser and the shareholders of the
Purchaser, threatened against or affecting the Purchaser or Parent, at law or in
equity, or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which would adversely affect the Purchaser's or Parent's performance
under this Agreement and the other agreements contemplated hereby to which the
Purchaser or Parent is a party or the consummation of the transactions
contemplated hereby or thereby.
5.6 BROKERAGE. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement made by or on behalf of the
Purchaser or Parent.
5.7 SOLVENCY. Assuming (i) the truth and accuracy of the Sellers' and
Stockholder's representations and warranties contained in Article IV and (ii)
none of the Sellers or the Stockholder have breached this Agreement or any other
Transaction Documents, after giving effect to the consummation of the
transactions contemplated hereby and the incurrence of any indebtedness in
connection therewith, Purchaser's assets will exceed its liabilities and
Purchaser will have the financial resources and ability to pay and discharge its
obligations as they become due.
ARTICLE VI
INDEMNIFICATION AND RELATED MATTERS
6.1 SURVIVAL. All representations, warranties, covenants and
agreements set forth in this Agreement or in any writing or certificate
delivered in connection with this Agreement shall survive the Closing Date.
Notwithstanding the foregoing, no Party shall be entitled to recover for any
Loss pursuant to Section 6.2(a)(i) or Section 6.2(c)(i) unless written notice of
a claim thereof is delivered to the other Party prior to the Applicable
Limitation Date. For purposes of this Agreement, the term "Applicable Limitation
Date" shall mean the date which is 450 days following the Closing Date; provided
that the Applicable Limitation Date with respect to the following Losses shall
be as follows: (i) with respect to any Loss arising from or related to a
-30-
breach of the representations and warranties of the Sellers and the Stockholder
set forth in Sections 4.12 (Taxes) and 4.19 (Employee Benefits Matters), the
Applicable Limitation Date shall be the 90th day after expiration of the statute
of limitations (including any extensions thereto to the extent that such statute
of limitations may be tolled) applicable to the Tax statute, regulation or other
authority which gave rise to such Loss, and (ii) with respect to any Loss
arising from or related to a breach of the representations and warranties of the
Seller and the Stockholder set forth in Section 4.1 (Incorporation, Organization
and Corporate Power), Section 4.2 (Authorization of Transactions), Section 4.3
(Capitalization), or Section 4.16 (Brokerage) and with respect to any Loss
arising from or related to a breach of the representations and warranties of the
Purchaser set forth in Section 5.1 (Incorporation, Organization an Corporate
Power), 5.2 (Authorization of Transactions), 5.3 (No Violation) or 5.6
(Brokerage), there shall be no Applicable Limitation Date (i.e., such
representations and warranties shall survive indefinitely).
6.2 INDEMNIFICATION.
(a) The Sellers and the Stockholder shall jointly and severally
indemnify the Purchaser and each of its officers, directors, stockholders,
employees, agents, representatives, affiliates, successors and assigns
(collectively, the "Purchaser Parties") and hold each of them harmless from and
against and pay on behalf of or reimburse such the Purchaser Parties in respect
of the entirety of any Losses the Purchaser Parties may suffer, sustain or
become subject to, through and after the date of the claim for indemnification
resulting from, arising out of, relating to, in the nature of, or caused by:
(i) the breach of any representation or warranty made by any
Seller or the Stockholder contained in this Agreement (other than in
Section 4.12 hereof) or any certificate delivered by any Seller or the
Stockholder to the Purchaser with respect thereto in connection with the
Closing (in each case, determined without regard to any qualifications
therein referencing the terms "materiality" or "Material Adverse Effect" or
other terms of similar import or effect);
(ii) the breach of any covenant or agreement made by any Seller
or the Stockholder contained in this Agreement or any certificate delivered
by any Seller or the Stockholder to the Purchaser with respect thereto in
connection with the Closing;
(iii) the breach of any representation or warranty made by any
Seller or the Stockholder in Section 4.12 hereof; or
(iv) any Excluded Liabilities.
The Purchaser's remedy for any indemnification of Losses hereunder may be
satisfied by proceeding against one or more of the Sellers or the Stockholder
individually for all or any portion of any such Loss and/or in the Purchaser's
sole discretion by utilizing the remedies set forth in Section 7.5.
-31-
(b) The indemnification provided for in Section 6.2(a)(i) above is
subject to the following limitations:
(i) The Sellers and the Stockholder will be liable to the
Purchaser Parties with respect to claims referred to in Section 6.2(a)(i)
only if the Purchaser gives the Sellers written notice thereof prior to the
Applicable Limitation Date;
(ii) The Sellers and the Stockholder shall not be liable to
indemnify any Purchaser Parties pursuant to Section 6.2(a)(i) unless and
until the Purchaser Parties have collectively suffered Loss by such
breaches or pursuant to such Section in excess of a $100,000 aggregate
deductible (the "Deductible") (at which point, subject to the other
limitations herein, the Sellers and the Stockholder will be liable to the
Purchaser Parties for all Losses in excess of the Deductible);
(iii) without limiting the generality of anything contained in
Article VI hereof, with respect to any claim by or liability to any
employee employed by any Seller arising as the result of the termination of
such employee's employment with the Purchaser or any action by the
Purchaser subsequent to the Closing Date (and the Purchaser agrees to
indemnify the applicable Seller for all such matters);
(iv) Losses due to Purchaser Parties pursuant to Section 6.2
shall be net of any proceeds received by any Purchaser Parties from any
separate indemnification, contribution or right over from or against, or
insurance proceeds recovered from, any Person other than Purchaser (and
Purchaser will seek recovery under all insurance policies covering any
Losses to the same extent as they would if such Losses were not subject to
indemnification under this Agreement);
(v) The Sellers and the Stockholder shall not be liable to
indemnify any Purchaser Parties with respect to Section 6.2(a)(i) unless
Losses suffered by the Purchaser Parties with respect to the same event or
claim or series of related events or claims exceed $10,000.00 (and, for
purposes of clarification, the Losses that are less than $10,000 shall not
count against the Deductible unless and until such Losses exceed $10,000,
at which point such Losses shall count against the deductible from dollar
one); or
(vi) The aggregate amount of all payments made by the Sellers and
the Stockholder in satisfaction of claims for indemnification pursuant to
Section 6.2(a)(i) shall not exceed $10,000,000 (the "Cap").
Notwithstanding any implication to the contrary contained in this Agreement, so
long as the Purchaser delivers written notice of a claim to the Sellers no later
than the Applicable Limitation Date, the Sellers and the Stockholder shall be
required to indemnify the Purchaser Parties for all Losses (up to the Cap) which
the Purchaser Parties may incur in respect of the matters which are the subject
of such claim, regardless of when incurred. In the event that the Sellers or the
Stockholder are obligated to indemnify a the Purchaser Party pursuant to Section
6.2(a)(i), then, solely for the purposes of calculating the amount of Losses,
all "Material Adverse Effect"
-32-
qualifications and other "materiality" qualifications contained in any such
representation and warranty shall be disregarded.
(c) The Purchaser shall indemnify the Sellers and the Stockholder and
hold the Stockholder, each Seller and their officers, directors, stockholders,
employees, agents, representatives, affiliates, successors and assigns
(collectively, the "Seller Parties") and hold each of them harmless from and
against and pay on behalf of or reimburse such Seller Parties in respect of the
entirety of any Losses the Seller Parties may suffer, sustain or become subject
to, through and after the date of the claim for indemnification resulting from,
arising out of, relating to, in the nature of, or caused by:
(i) the breach of any representation or warranty made by the
Purchaser contained in this Agreement or any certificate delivered by the
Purchaser to the Sellers with respect thereto in connection with the
Closing (in each case, determined without regard to any qualifications
therein referencing the terms "materiality" or "Material Adverse Effect" or
other terms of similar import or effect);
(ii) the breach of any covenant or agreement made by the
Purchaser contained in this Agreement or any certificate delivered by the
Purchaser to the Sellers with respect thereto in connection with the
Closing;
(iii) any Assumed Liabilities (or the failure to satisfy such
Assumed Liabilities when due); or
(iv) acts or omissions of Purchaser after the Closing Date,
including, without limitation, Purchaser's operation of the Business after
the Closing Date or any claim of any type whatsoever related to or brought
by employees engaged in the operation of the Business (whether employed by
Purchaser or employed by Affiliates of Sellers pursuant to this Agreement
or the Transition Services Agreement).
(d) The indemnification provided for in Section 6.2(c)(i) above is
subject to the following limitations:
(i) The Purchaser will be liable to the Seller Parties with
respect to claims referred to in Section 6.2(c)(i) only if the Sellers give
the Purchaser written notice thereof prior to the Applicable Limitation
Date;
(ii) The Purchaser shall not be liable to indemnify any Seller
Parties pursuant to Section 6.2(c)(i) unless and until the Seller Parties
have collectively suffered Loss by such breaches or pursuant to such
Section in excess of the Deductible (at which point, subject to the other
limitations herein, the Purchaser will be liable to the Seller Parties for
all Losses in excess of the Deductible); and
(iii) The aggregate amount of all payments made by the Purchaser
in satisfaction of claims for indemnification pursuant to Section 6.2(c)(i)
shall not exceed the Cap.
-33-
Notwithstanding any implication to the contrary contained in this Agreement, so
long as the Sellers deliver written notice of a claim to the Purchaser no later
than the Applicable Limitation Date, the Purchaser shall be required to
indemnify the Seller Parties for all Losses (up to the Cap) which the Seller
Parties may incur in respect of the matters which are the subject of such claim,
regardless of when incurred. In the event that the Purchaser is obligated to
indemnify a Seller Party pursuant to Section 6.2(c)(i), then, solely for the
purposes of calculating the amount of Losses, all "Material Adverse Effect"
qualifications and other "materiality" qualifications contained in any such
representation and warranty shall be disregarded.
(e) If a party hereto seeks indemnification under this Article VI,
such party (the "Indemnified Party") shall promptly give written notice to the
other party (the "Indemnifying Party") after receiving written notice of any
action, lawsuit, proceeding, investigation, or other claim against it (if by a
third party) or discovering the liability, obligation, or facts giving rise to
such claim for indemnification, describing the claim, the amount thereof (if
known and quantifiable), and the basis thereof; provided that the failure to so
notify the Indemnifying Party shall not relieve the Indemnifying Party of its
obligations hereunder except to the extent such failure shall have prejudiced
the Indemnifying Party's ability to defend such claim. In that regard, if any
action, lawsuit, proceeding, investigation, or other claim shall be brought or
asserted by any third party which, if adversely determined, would entitle the
Indemnified Party to indemnity pursuant to this Article VI, the Indemnified
Party shall promptly notify the Indemnifying Party of the same in writing,
specifying in detail the basis of such claim and the facts pertaining thereto
and the Indemnifying Party shall be entitled to participate in the defense of
such action, lawsuit, proceeding, investigation, or other claim giving rise to
the Indemnified Party's claim for indemnification at the Indemnifying Party's
expense and option (subject to the limitations set forth below) and shall be
entitled to control and appoint lead counsel of such defense with reputable
counsel reasonably acceptable to the Indemnified Party; provided that, as a
condition precedent to the Indemnifying Party's right to assume control of such
defense, it must first agree in writing to be fully responsible for all Losses
relating to such claims and to provide indemnification to the Indemnified Party
for Losses relating to such claim in the manner provided for in this Agreement;
and provided further that the Indemnifying Party may consent to waive the right
to assume control of such defense and shall pay the fees and expenses of counsel
retained by the Indemnified Party, if the claim which the Indemnifying Party
seeks to assume control (each, an "Indemnified Party Controlled Proceeding") (i)
involves a claim to which the Indemnified Party reasonably believes could be
detrimental to or injure the Indemnified Party's reputation, customer relations
or future business prospects, (ii) seeks non-monetary relief (except where
non-monetary relief is merely incidental to a primary claim or claims for
monetary damages), (iii) involves criminal allegations, (iv) is one in which the
Indemnifying Party is also a party and joint representation would be
inappropriate or there may be legal defenses available to the Indemnified Party
which are different from or additional to those available to the Indemnifying
Party, or (v) involves a claim which, upon petition by the Indemnified Party,
the appropriate court rules that the Indemnifying Party failed or is failing to
vigorously prosecute or defend.
If the Indemnifying Party is permitted to assume and control the defense
and elects to do so, the Indemnified Party shall have the right to employ
counsel separate from counsel employed by the Indemnifying Party in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel employed by the Indemnified Party shall be at the expense of
-34-
the Indemnified Party (and such expenses shall be excluded from the calculation
of any Losses) unless the employment thereof has been specifically authorized by
the Indemnifying Party in writing.
If the Indemnifying Party shall control the defense of any such claim, the
Indemnifying Party shall obtain the prior written consent of the Indemnified
Party (which shall not be unreasonably withheld) before entering into any
settlement of a claim or ceasing to defend such claim, if pursuant to or as a
result of such settlement or cessation, injunction, or other equitable relief
will be imposed against the Indemnified Party or if such settlement does not
expressly unconditionally release the Indemnified Party from all liabilities and
obligations with respect to such claim.
(f) Amounts paid to or on behalf of the Seller, the Stockholder or the
Purchaser as indemnification shall be treated as adjustments to the Purchase
Price for Tax purposes.
(g) The Purchaser shall be entitled to (but shall not be required to)
set-off any amounts due or payable to any of the Purchaser Parties by any Seller
Party pursuant to this Section 6.2 against any amounts otherwise due and payable
by any of the Purchaser Parties or any of their Affiliates to any Seller Party,
including by setting off against the Performance Payment otherwise due and
payable to any Seller Party pursuant to Section 2.4 hereof or any payment
otherwise due and payable to any Seller Party under the New Leases (the "Set-Off
Right"). In the event the Purchaser exercises the Set-Off Right, the Purchaser
shall deliver a written notice to the Stockholder specifying the Purchaser's
desire to exercise the Set-off Right, and such notice shall include the amount
to be set-off (the "Set-Off Amount") and a reasonable description of the reasons
for its exercise of the Set-Off Right (a "Set-Off Notice"), and deposit the
Set-Off Amount with the escrow agent (or its successor) under the Escrow
Agreement pursuant to a separate escrow agreement substantially similar to the
Escrow Agreement (such escrow the "Set-Off Escrow"). The Purchaser shall be
entitled to draw Set-Off Amount (or any portion of the Set-Off Amount not
disputed in a Notice of Disagreement (as defined below)) from the Set-Off Escrow
60 days following the delivery of a Set-Off Notice, unless the Stockholder
provides written notice of its disagreement (a "Notice of Disagreement") to the
Purchaser prior to such date. Any Notice of Disagreement shall specify in
reasonable detail the nature and dollar amount of any disagreement asserted
therein. If a timely Notice of Disagreement is received by the Purchaser, then
the Set-Off Amount shall be distributed out of the Set-Off Escrow to Purchaser,
on the one hand, and Sellers or their Affiliates (as the case may be), on the
other hand, only pursuant to an agreement between the Purchaser and the
Stockholder or as finally resolved by a court of competent jurisdiction.
(h) Indemnification Exclusive Remedy. Except in the case of fraud or
intentional misrepresentation, indemnification pursuant to the provisions of
this Section 6.2 shall be the exclusive remedy of the parties for any
misrepresentation or breach of any warranty or covenant contained herein or in
any closing document executed and delivered pursuant to the provisions hereof.
The only legal action which may be asserted by any party with respect to any
matter which is the subject of this Section 6.2 shall be a contract action to
enforce, or to recover damages for the breach of,
-35-
this Section 6.2. Without limiting the generality of the preceding sentence, no
legal action sounding in tort or strict liability may be maintained by any
party.
(i) No Punitive Damages. No Party shall be entitled to recover under
Section 6.2 WITH RESPECT TO PUNITIVE DAMAGES (unless such punitive damages are
paid or payable to a third party).
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 CONTINUING ASSISTANCE. Subsequent to the Closing, the Sellers, the
Stockholder and the Purchaser (at their own cost) shall assist each other
(including making records available) in the preparation of their respective Tax
Returns and the filing and execution of Tax elections, if required, as well as
any audits or litigation that ensue as a result of the filing thereof, to the
extent that such assistance is reasonably requested.
7.2 TAX MATTERS.
(a) All transfer, documentary, sales, use, stamp, registration and
other such Taxes and fees (including any penalties and interest thereon)
incurred in connection with this Agreement shall be paid by the Sellers or the
Stockholder when due, and the Sellers and the Stockholder shall, at his, her or
their own expense, file all necessary Tax Returns and other documentation with
respect to all such transfer, documentary, sales, use, stamp, registration and
other Taxes and fees, and if required by applicable law, the Purchaser shall,
and shall cause its affiliates to, join in the execution of any such Tax Returns
and other documentation.
(b) All real property taxes, personal property taxes, ad valorem
obligations and similar taxes imposed on a periodic basis, in each case levied
with respect to the Acquired Assets, other than conveyance taxes provided for in
Section 7.2(a), for a taxable period which includes (but does not end on) the
Closing Date shall be apportioned between the Sellers and the Purchaser as of
the Closing Date based on the number of days of such taxable period included in
the pre-Closing Tax period (including the Closing Date) and the number of days
of such taxable period included in the post-Closing period. The Sellers shall be
liable for the proportionate amount of such Taxes that is attributable to the
pre-Closing Tax period. Within ninety (90) days after the Closing, the Sellers
and the Purchaser shall present a reimbursement to which each is entitled under
this Section 7.2(b) together with such supporting evidence as is reasonably
necessary to calculate the proration amount. The proration amount shall be paid
by the party owing it to the other within ten (10) days after delivery of such
statement. Thereafter, the Sellers shall notify the Purchaser upon receipt of
any xxxx for real or personal property taxes relating to the Acquired Assets,
part or all of which are attributable to the post-Closing Tax period, and shall
promptly deliver such xxxx to the Purchaser who shall pay the same to the
appropriate taxing authority, provided that if such xxxx covers the pre-Closing
Tax period, the Sellers shall also remit prior to the due date of assessment to
the Purchaser payment for the proportionate amount of such xxxx that is
attributable to the pre-Closing Tax period. In the event that either the Sellers
or
-36-
the Purchaser shall thereafter make a payment for which it is entitled to
reimbursement under this Section 7.2(b), the other party shall make such
reimbursement promptly but in no event later than thirty (30) days after the
presentation of a statement setting forth the amount of reimbursement to which
the presenting party is entitled along with such supporting evidence as is
reasonably necessary to calculate the amount of reimbursement. Any payment
required under this Section 7.2(b) and not made within 10 days of delivery of
the statement shall bear interest at the rate per annum determined, from time to
time, under the provisions of Section 6621(a)(2) of the Code for each day until
paid. In all cases where Purchaser and Sellers share in the payment of Taxes
pursuant to this Section 7.2(b), Purchaser shall prepare and file (and to the
extent applicable, distribute) all returns, reports and information statements,
forms or similar documents for distribution to third parties, with respect to
such Taxes, all in a timely and proper fashion and as may be necessary or
appropriate to assure that Seller shall be in full and prompt compliance with
law. Purchaser shall upon the request of Seller forthwith provide to Seller
proof of its compliance with the foregoing.
7.3 PRESS RELEASES AND ANNOUNCEMENTS. No press releases related to
this Agreement and the transactions contemplated herein, or other announcements
to the Insurance Companies or the employees, customers or suppliers of the
Sellers or Purchasers shall be issued without the mutual approval of all
Parties, except for any public disclosure which any Party in good faith believes
is required by law or regulation (in which case the disclosure shall be prepared
jointly by the Stockholder and the Purchaser). No such release or announcement
shall disclose (i) the Purchase Price or (ii) the name of Stockholder, except as
required by law or regulation (in which case the disclosure shall be prepared
jointly by the Stockholder and the Purchaser).
7.4 FURTHER TRANSFERS. Each Party shall execute and deliver such
further instruments of conveyance and transfer and take such additional action
as the any other Party may reasonably request to effect, consummate, confirm or
evidence the transfer to the Purchaser of the Acquired Assets and any other
transactions contemplated hereby (including, without limitation, the transfer
back of any Excluded Asset or Excluded Liability back to Sellers). In the event
Purchaser shall receive any instrument of payment of with respect to any
Excluded Asset (including, without limitation, any payment from an Insurance
Company), Purchaser shall deliver it to Sellers, endorsed where necessary,
without recourse, in favor of Sellers (or such other Person as they reasonably
specify).
7.5 TRANSITION ASSISTANCE. None of the Sellers or the Stockholder
shall in any manner take any action which is designed, intended, or might be
reasonably anticipated to have the effect of discouraging, customers, suppliers
(other than the Insurance Companies), lessors, licensors and other business
associates from maintaining the same business relationships with the Purchaser
after the date of this Agreement as were maintained with the Sellers prior to
the date of this Agreement.
-37-
7.6 EXPENSES. Except as otherwise provided herein, the Sellers and the
Stockholder and the Purchaser shall pay all of their own fees, costs and
expenses (including, without limitation, fees, costs and expenses of legal
counsel, investment bankers, brokers or other representatives and consultants
and appraisal fees, costs and expenses) incurred in connection with the
negotiation of this Agreement and the other agreements contemplated hereby, the
performance of its obligations hereunder and thereunder, and the consummation of
the transactions contemplated hereby and thereby.
7.7 EXCLUSIVITY. Until this Agreement is terminated by its terms, none
of the Sellers or the Stockholder shall (and none of the Sellers or the
Stockholder shall cause or permit any Insider or agent or any other Person
acting on behalf of the Stockholder, any Seller, or their Affiliates to), (a)
solicit, initiate or encourage the submission of any proposal or offer from any
Person (including any of them) relating to any (i) liquidation, winding-up,
dissolution or recapitalization of, (ii) merger or consolidation with or into,
(iii) acquisition or purchase of assets of or any equity interest in or (iv)
similar transaction or business combination involving the Sellers or (b)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any other Person to do or seek any of the
foregoing. Each Seller and the Stockholder agrees that they will discontinue
immediately any negotiations or discussion with respect to any of the foregoing.
Until this Agreement is terminated by its terms, the Stockholder and the Sellers
shall notify the Purchaser immediately if any Person makes any proposal, offer,
inquiry or contact with respect to any of the foregoing and shall provide the
Purchaser with the terms thereof.
7.8 BOOKS AND RECORDS. Unless otherwise consented to in writing by the
Sellers or the Purchaser (as the case may be), the Purchaser and the Sellers
will not, for a period of seven years following the date hereof, destroy, alter
or otherwise dispose of any of the books and records of the Sellers acquired by
the Purchaser hereunder or retained by any Seller or the Stockholder and
relating to the Business without first offering to surrender to the Sellers, the
Stockholder or the Purchaser such books and records or any portion thereof of
which the Sellers, the Stockholder or the Purchaser may intend to destroy, alter
or dispose. The Purchaser, the Sellers and the Stockholder will allow the other
party's representatives, attorneys and accountants access to such books and
records, upon reasonable request for during such party's normal business hours,
for the purpose of examining and copying the same in connection with any matter
whether or not related to or arising out of this Agreement or the transactions
contemplated hereby.
7.9 NONCOMPETITION, NONSOLICITATION AND CONFIDENTIALITY.
(a) Noncompetition. The Sellers and the Stockholder acknowledge that
they are receiving significant economic benefits by reason of the consummation
of the transactions contemplated hereby, that they have become familiar with the
trade secrets and other confidential information concerning the Business, that
their services to the Business have been unique in
-38-
nature and that the Purchaser would be irreparably damaged if they were to
compete with the Purchaser. Accordingly, in consideration of the mutual
covenants provided for herein to the Sellers and the Stockholder at the Closing,
during the period beginning on the Closing Date and ending on the fifth
anniversary of the Closing Date (the "Noncompete Period"), none of the Sellers
or the Stockholder shall engage (whether as an owner, operator, manager,
employee, officer, director, consultant, advisor, representative or otherwise)
directly or indirectly in any business that is involved in the marketing, sales,
distribution, financing or service of private passenger automobile liability
insurance products in Chicago, Illinois or any area located within 50 miles of
Chicago, Illinois; provided that ownership of less than 2% of the outstanding
stock of any publicly-traded corporation shall not be deemed to be engaging
solely by reason thereof in any of its businesses; provided, further, that the
nothing in this Section 7.9(a) shall prevent the Sellers and the Stockholder
from selling "commercial lines" insurance policies (including, without
limitation, automobile insurance to commercial drivers, including, without
limitation, taxi cab drivers) or serving as an agent of Purchaser in the sale of
private passenger automobile liability insurance products. The parties hereto
agree that the covenant set forth in this Section 7.9 is reasonable with respect
to its duration, geographical area and scope. If the final judgment of a court
of competent jurisdiction declares that any term or provision of this Section
7.9(a) is invalid or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability shall have the power to reduce
the scope, duration, or area of the term or provision, to delete specific words
or phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified after the expiration of the
time within which the judgment may be appealed.
(b) Nonsolicitation. During the Noncompete Period, none of the Sellers
or the Stockholder shall directly or indirectly through another Person (i)
induce or attempt to induce any employee of the Purchaser to leave the employ of
the Purchaser, or in any way interfere with the relationship between the
Purchaser and any employee thereof, (ii) hire any person who is then an employee
of the Purchaser or is subject to being hired by Purchaser pursuant to the
Transition Services Agreement, or (iii) induce or attempt to induce any
customer, supplier (other than the Insurance Companies), licensee, licensor,
franchisee or other business relation of the Purchaser to cease doing business
with the Purchaser, or in any way interfere with the relationship between any,
customer, supplier, licensee or business relation and the Purchaser.
(c) Confidentiality.
(i) Except as otherwise specifically contemplated by the
Transition Services Agreement, each Seller and the Stockholder shall treat
and hold as confidential any information concerning the Business and
affairs of the Business that is not already generally available to the
public (the "Purchaser Confidential Information"), refrain from using any
of the Purchaser Confidential Information except in connection with this
Agreement, and deliver promptly to the Purchaser or destroy, at the request
and option of the Purchaser, all tangible embodiments (and all copies) of
the Purchaser Confidential Information which are in his possession or under
his control. In the event that any Seller or the Stockholder is requested
or required (by oral question or request for information or documents in
any legal proceeding, interrogatory, subpoena, civil investigative demand,
-39-
or similar process) to disclose any Purchaser Confidential Information,
such Seller or the Stockholder shall notify the Purchaser promptly of the
request or requirement so that the Purchaser may seek an appropriate
protective order or waive compliance with the provisions of this Section
7.9(c)(i). If, in the absence of a protective order or the receipt of a
waiver hereunder, any Seller or the Stockholder is, on the advice of
counsel, compelled to disclose any Purchaser Confidential Information to
any tribunal, such Seller or the Stockholder may disclose the Purchaser
Confidential Information to the tribunal; provided that in connection with
such disclosure by the Stockholder or Seller, such Party shall use his or
its reasonable best efforts to obtain, at the request of the Purchaser, an
order or other assurance that confidential treatment shall be accorded to
such portion of the Purchaser Confidential Information required to be
disclosed as the Purchaser shall designate.
(ii) Except as otherwise specifically contemplated by the
Transition Services Agreement, Purchaser shall treat and hold as
confidential any information that is an Excluded Asset that is not already
generally available to the public (the "Seller Confidential Information"),
refrain from using any of the Seller Confidential Information, and deliver
promptly to the Purchaser or destroy, at the request and option of the
Purchaser, all tangible embodiments (and all copies) of the Seller
Confidential Information which are in his possession or under his control.
In the event that any Purchaser is requested or required (by oral question
or request for information or documents in any legal proceeding,
interrogatory, subpoena, civil investigative demand, or similar process) to
disclose any Seller Confidential Information, such Purchaser shall notify
the Stockholder promptly of the request or requirement so that the
Stockholder and/or either Seller may seek an appropriate protective order
or waive compliance with the provisions of this Section 7.9(c)(ii). If, in
the absence of a protective order or the receipt of a waiver hereunder,
Purchaser is, on the advice of counsel, compelled to disclose any Seller
Confidential Information to any tribunal, such Purchaser may disclose the
Seller Confidential Information to the tribunal; provided that in
connection with such disclosure by the Purchaser, Purchaser shall use its
reasonable best efforts to obtain, at the request of the either Seller or
Stockholder, an order or other assurance that confidential treatment shall
be accorded to such portion of the Seller Confidential Information required
to be disclosed as the either Seller or Stockholder shall designate.
(d) Trade Names. No Seller or the Stockholder shall use or permit any
of its or his Affiliates to use the "Insurance Plus," "Yale," "Yale Insurance"
or "Yale International Insurance" names or any name confusingly similar thereto
in any manner anywhere in the world after Closing.
(e) Remedy for Breach. Each Seller and the Stockholder acknowledges
and agrees that in the event of a breach by any Seller or the Stockholder of any
of the provisions of this Section 7.9, monetary damages shall not constitute a
sufficient remedy. Consequently, in the event of any such breach, the Sellers,
the Purchaser and/or their respective successors or assigns may, in addition to
other rights and remedies existing in their favor, apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce or prevent any violations of the provisions
hereof, in each case without the requirement of posting a bond or proving actual
damages.
-40-
7.10 EMPLOYEES. Matters regarding the Employees of the Business are
dealt with in the Transition Services Agreement.
7.11 SELLER'S NAME CHANGE. As soon as practicable after the Closing
(and in any event within five (5) days of the Closing), Insurance Plus will
change its corporate name to a name which is not (and which is not confusingly
similar to) "Insurance Plus" and Yale will change its corporate name to a name
which is not (and which is not confusingly similar to) "Yale," "Yale Insurance"
or "Yale International Insurance," it being the intent of the Parties that from
and after the Closing the Purchaser will have the sole right as against the
Sellers and all other Persons to conduct business under such names and that the
Purchaser will commence doing so at the time of the Closing.
7.12 ALLOCATION OF PURCHASE PRICE. Within thirty (30) days following
the Closing Date, Sellers and Sellers' accountants shall prepare, and deliver to
Purchaser a proposed allocation of the Purchase Price to be paid hereunder, plus
any assumption of Assumed Liabilities or other consideration deemed paid
hereunder be paid hereunder, between the Sellers and among the class references
to assets in accordance with Treasury Regulation Sections 1.338-6T, 1.338-7T and
1.1060-1T (the "Preliminary Allocation"). Sellers and their accountants shall
prepare the Preliminary Allocation in good faith, and both the Preliminary
Allocation and Final Allocation (as defined below) shall be prepared in a manner
whereby the allocations for inventory, accounts receivable (if any), tangible
personal property, and intangible personal property shall not exceed the
adjusted Tax basis for such property for federal income tax purposes in the
hands of Sellers immediately prior to the Closing, and no portion of the
Purchase Price will be allocated to any covenant not to compete or similar
arrangement as defined in Section 197(d)(1)(E) of the Code. Each of the parties
shall reasonably cooperate with the other in any manner in which may be
reasonably requested in connection with determining the Final Allocation (as
defined below). If Purchaser does not deliver a written notice to Sellers within
thirty (30) days after receipt of the Preliminary Allocation specifying in
reasonable detail the nature of any objection it may have to the proposed
allocation (an "Allocation Objection Notice"), then the Preliminary Allocation
shall be the final allocation of the Purchase Price, the Assumed Liabilities and
other relevant items among the Acquired Assets and between the Sellers (such
allocation, the "Final Allocation"). If Purchaser does timely deliver an
Allocation Objection Notice, then Purchaser and Sellers shall attempt in good
faith to resolve any differences identified in the Allocation Objection Notice
within the succeeding twenty (20) days and, if they are able to resolve all such
differences, then the agreed-upon allocation shall be the Final Allocation. If
they are unable to resolve all such differences, then any remaining disagreed
items shall be submitted to the an independent accountant mutually agreeable to
Purchaser and the Stockholder (the "Independent Accountant") for resolution in
the next twenty (20) days. The Independent Accountant shall be instructed to
determine whether the position maintained by Sellers or by Purchaser is the more
reasonable allocation of the Purchase Price in respect of any item in dispute
(taking into account the provisions of this Section 7.12) and shall select one
of the two positions. The allocation resulting from the Independent Accountant's
decision shall be the Final Allocation. The fees and expenses of the Independent
Accountant shall be paid by the party whose position is not selected by the
Independent Accountant. The parties agree that none of them will assert or
maintain a position inconsistent
-41-
with the foregoing unless required by applicable law. The parties agree that the
form of the transactions (and the consideration therefor) provided for in this
Agreement and in the agreements referred to herein was arrived at on the basis
of arm's-length negotiation among the parties, and will be respected by them for
federal, state, local and other tax reporting purposes (including in filings on
Internal Revenue Service Form 8594) and that none of them will assert or
maintain a position inconsistent with the foregoing. Each of the Purchaser and
the Sellers shall file all necessary forms required by any Tax authority in
conjunction with the purchase of the Acquired Assets and such forms shall be
prepared in accordance with this Section. The parties agree that all Performance
Payments shall be allocated to goodwill. The parties will promptly inform one
another of any challenge by any governmental body to any allocation made
pursuant to Section 7.12 and agree to consult and keep one another informed with
respect to the status of, and any discussion, proposal or submission with
respect to, such challenge.
7.13 THIRD PARTY CONSENTS. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement shall not constitute an agreement to
transfer, sell or otherwise assign any instrument, contract, lease, license,
permit or other agreement or arrangement which is not permitted to be assigned
in connection with a transaction of the type contemplated by this Agreement
(collectively, the "Unassigned Contracts"). The beneficial interest in and to
each Unassigned Contract shall in any event pass to the Purchaser at the
Closing; and each Seller covenants and agrees to cooperate with the Purchaser in
any lawful and economically feasible arrangement to provide the Purchaser with
the Sellers' entire interest in the benefits under each of the Unassigned
Contracts. If and only if the Purchaser receives the economic benefits under an
Unassigned Contract, the Purchaser agrees to accept the burdens and perform the
obligations under such Unassigned Contract as subcontractor of the Sellers.
Furthermore, if the other party(ies) to an Unassigned Contract subsequently
consent to the assignment of such contract to the Purchaser (without
modification thereto which is adverse to the Purchaser), the Purchaser shall
thereupon agree to assume and perform all liabilities and obligations arising
thereunder after the date of such consent, at which time such Unassigned
Contract shall be deemed an Acquired Asset. Purchaser agrees, upon Sellers'
reasonable request, to use its reasonable efforts to assist Sellers and/or
Stockholder in attempting to obtain the assignment and novation of each
Unassigned Contract Sellers and/or Stockholder may request, following the
Closing. Each Seller agrees to indemnify the Purchaser and hold it harmless
against any Losses which the Purchaser may suffer, sustain or become subject to,
as a result of any claims by any party to any of the Unassigned Contracts for
breach of contract in connection with the consummation of the transactions
contemplated by this Agreement. Notwithstanding anything to the contrary herein,
including, without limitation Section 2.1(c), 4.7, 4.11, 4.13 and 4.17 hereof,
and the previous sentence of this Section 7.13, no provision of this Agreement
shall be deemed to require any of Purchaser, Sellers or Stockholder to indemnify
or otherwise be liable to any other Party hereto for any Losses that may result
to any of Purchaser, Sellers or Stockholder in connection with a failure to
assign any Contract or Permit in connection with this Agreement or the
transactions contemplated hereby (including, without limitation, the inability
to secure a renewal option with respect to any unassigned contract, due to such
failure to assign the Unassigned Contract).
7.14 INSURANCE.
-42-
(a) Within seven (7) days following the Closing Date, the Purchaser
shall name each Seller and the Stockholder (and such officers, directors,
shareholders and other Affiliates of such Seller as such Seller shall designate
in writing to the Purchaser from time to time) as additional insureds under
general liability and premises liability insurance to be maintained by the
Purchaser with respect to the Business for at least five (5) years from the time
each Seller and the Stockholders are named as additional insureds, which
insurance policy or policies shall (a) be in commercially reasonable form and be
issued by an insurer or insurers reasonably acceptable to such Seller, (b) apply
to each piece of Real Property being transferred to the Purchaser pursuant to
this Agreement (c) be primary to and without right of contribution from any
other insurance held or purchased or owned by such Seller, (d) provide limits in
the amount of at least $1.0 million for each claim or occurrence and $2.0
million in the annual aggregate, and (e) provide, by endorsement, that such
Seller is entitled to receive at least thirty (30) days prior written notice of
any intent to reduce policy limits, restrict coverage, cancel or otherwise alter
or amend said policy in any manner that affects such Seller. Proof of the
insurance required pursuant to this Section 7.14(a), including a certificate or
certificates of insurance, shall be submitted by the Purchaser to the applicable
Seller as soon as reasonably practicable following the Closing Date, and
thereafter, during the period provided in subsection this Section 7.14(a), on or
prior to the date which is ten business days prior to each policy expiration
date. The Purchaser shall deliver a copy of the Purchaser's then prevailing
policy or policies of insurance within thirty (30) days following the later of
(i) the delivery of the certificate(s) of insurance and (ii) the receipt by the
Purchaser of a copy of such policy or policies. Within seven (7) days, Purchaser
shall provide the landlord under each Lease with any certificate of insurance
required under such Lease.
7.15 BULK SALES. Without implication that such laws apply to the
transaction contemplated hereby, Seller and Purchaser shall not comply with the
provisions of the Uniform Commercial Code of any states relating to bulk sales.
ARTICLE VIII
MISCELLANEOUS
8.1 AMENDMENT AND WAIVER. This Agreement may be amended and any
provision of this Agreement may be waived, provided that any such amendment or
waiver shall be binding upon a Party only if such amendment or waiver is set
forth in a writing executed by the Purchaser, the Sellers and the Stockholder.
No course of dealing between or among any persons having any interest in this
Agreement shall be deemed effective to modify, amend or discharge any part of
this Agreement or any rights or obligations of any Party under or by reason of
this Agreement.
8.2 NOTICES. All notices, demands and other communications given or
delivered under this Agreement shall be in writing and shall be deemed to have
been given when personally delivered, three business days following mailing by
first class mail, return receipt requested, or delivered by express courier
service or telecopied (with hard copy to follow by express courier service).
Notices, demands and communications to the Stockholder, the Sellers and the
-43-
Purchaser shall, unless another address is specified in writing, be sent to the
address or telecopy number indicated below:
Notices to the Sellers and the Stockholder:
c/o IP Insurance Liquidation, Inc.
(f/k/a Insurance Plus Agency II, Inc.)
C&M Xxxxx
0000 Xxxxxxxxxx Xxx 0000
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxx
with a copy to:
FagelHaber LLC
00 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Notices to the Purchaser:
First Acceptance Corporation
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Perl, P.C.
Telecopy: (000) 000-0000
8.3 BINDING AGREEMENT; ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the Parties
and their respective successors and permitted assigns; provided that neither
this Agreement nor any of the rights, interests or obligations hereunder may be
assigned by any Seller or the Stockholder without the prior written consent of
the Purchaser or by the Purchaser (except as otherwise provided in this
Agreement) without the prior written consent of the Sellers; provided further
that:
(a) the Purchaser may assign its rights under this Agreement for
collateral security purposes to any lender providing financing to the Purchaser
or any of its Affiliates and any such lender may exercise all of the rights and
remedies of the Purchaser hereunder; and
-44-
(b) the Purchaser may assign its rights under this Agreement, in whole
or in part, to any subsequent purchaser of the Purchaser or any material portion
of its assets (whether such sale is structured as a sale of stock, a sale of
assets, a merger or otherwise) so long as Purchaser remains joint and severally
liable for all of its obligations to Sellers and Stockholders under this
Agreement.
8.4 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
8.5 NO STRICT CONSTRUCTION. The language used in this Agreement shall
be deemed to be the language chosen by the Parties to express their mutual
intent, and no rule of strict construction shall be applied against any person.
8.6 CONSTRUCTION. Nothing in the schedules hereto shall be deemed
adequate to disclose an exception to a representation or warranty made herein
unless the schedule identifies the exception with reasonable particularity and
describes the relevant facts in reasonable detail, provided, however, that any
matter which is disclosed in any portion of any Schedule to this Agreement is
deemed to have been disclosed for the purposes of all relevant provisions of
this Agreement for which disclosure is reasonably apparent. The inclusion of any
item on any schedule to this Agreement is not evidence of the materiality of
such item for the purposes of this Agreement and the Transaction Documents.
Without limiting the generality of the foregoing, the mere listing (or inclusion
of a copy) of a document or other item shall not be deemed adequate to disclose
an exception to a representation or warranty made herein (unless the
representation or warranty has to do with the existence of the document or other
item itself) except where such disclosure is reasonably apparent. The Parties
intend that each representation, warranty, covenant and agreement contained
herein shall have independent significance. If any Party has breached any
representation, warranty, covenant or agreement contained herein in any respect,
the fact that there exists another representation, warranty, covenant or
agreement relating to the same subject matter (regardless of the relative levels
of specificity) which the Party has not breached shall not detract from or
mitigate the fact that the Party is in breach of the first representation,
warranty, covenant or agreement.
8.7 CAPTIONS. The captions used in and the tables of contents and
schedules to this Agreement are for convenience of reference only and do not
constitute a part of this Agreement and shall not be deemed to limit,
characterize or in any way affect any provision of this Agreement, and all
provisions of this Agreement shall be enforced and construed as if no caption
had been used in this Agreement.
-45-
8.8 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein contain the entire agreement between the Parties and supersede any prior
understandings, agreements or representations by or between the Parties, written
or oral, which may have related to the subject matter hereof in any way.
8.9 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same instrument.
8.10 GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois applicable therein without
giving effect to any choice of law or conflict of law provision (whether of the
State of Illinois or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Illinois. This Agreement
has been executed and delivered in and shall be deemed to have been made
Chicago, Illinois. Sellers, Stockholder and Purchaser each agrees to the
exclusive jurisdiction of any state or Federal court within the City of Chicago,
Illinois with respect to any claim or cause of action arising under or relating
to this Agreement, and waives personal service of any and all process upon it,
and consents that all services of process be made by registered mail, directed
to it at its address as set forth in Section 8.2, and service so made shall be
deemed to be completed when received. Sellers, Stockholder and Purchaser each
waives any objection based on forum non conveniens and waives any objection to
venue of any action instituted hereunder. Nothing in this paragraph shall affect
the right of Sellers, Stockholder or Purchaser to serve legal process in any
other manner permitted by law. EACH OF THE PARTIES HERETO WAIVES THE RIGHT TO A
JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING SEEKING ENFORCEMENT
OF SUCH PARTY'S RIGHTS UNDER THIS AGREEMENT.
8.11 PARTIES IN INTEREST. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the Parties and their
respective successors and assigns any rights or remedies under or by virtue of
this Agreement.
8.12 GUARANTY. Parent hereby unconditionally guaranties each of
Purchaser's obligations under this Agreement.
* * * * *
-46-
IN WITNESS WHEREOF, the Parties have executed this Asset Purchase
Agreement as of the date first written above.
INSURANCE PLUS AGENCY II, INC.
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------------
Its: President
YALE INTERNATIONAL INSURANCE AGENCY,
INC.
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------------
Its: President
ACCEPTANCE INSURANCE AGENCY OF
ILLINOIS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Its: President
FIRST ACCEPTANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Its: President
/s/ Xxxxxxxxxxx Xxxxx
----------------------------------------
Xxxxxxxxxxx Xxxxx
