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Exhibit 10.81
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("AGREEMENT") is entered into effective
this 31st day of July, 2000 ("Closing Date"), by and between IMS DIRECT, INC.,
a Florida corporation ("SELLER") and BANKERS INSURANCE SERVICES, INC. (or its
assigns), a Florida corporation ("PURCHASER"). Seller and Purchaser are
hereinafter collectively referred to as the "PARTIES."
RECITALS:
A. Seller is in the business of direct market solicitation of
agents and policyholders on behalf of insurance companies (the "BUSINESS").
B. Purchaser desires to purchase and Seller desires to sell
certain assets related to the Business upon the terms and conditions set forth
below in this Agreement.
NOW THEREFORE, in consideration of the foregoing, and the mutual
agreements, covenants, representations and warranties contained in this
Agreement, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 PURCHASE AND SALE. On the terms and subject to the conditions
of this Agreement, Purchaser shall purchase and Seller shall sell, assign,
transfer, convey and deliver to Purchaser, at Closing, those assets of Seller
used in the operation of the Business and listed on SCHEDULE 1.1 hereto (the
"PURCHASED ASSETS").
1.2 PURCHASE PRICE; PAYMENT. The aggregate purchase price (the
"PURCHASE PRICE") to be paid by Seller to Purchaser for assumption of the
Purchased Assets and the Assumed Liabilities (as hereinafter defined) is TWO
THOUSAND FOUR HUNDRED AND SIXTY TWO AND 63/100 DOLLARS ($2,462.63).
1.3 ASSUMPTION OF LIABILITIES. At Closing, Purchaser shall assume
the liabilities and obligations of Seller set forth in SCHEDULE 1.2 hereto
("Assumed Liabilities"), except for: (1) liability for unpaid wages under the
Fair Labor Standards Act from the period beginning with the workweek April 16,
1998 through the workweek ending July 22, 2000; and (2) liability for return
commissions on flood insurance policies (issued between December 1, 1999 and
July 31, 2000) that were cancelled by insureds between the period of time that
begins on August 1, 2000 and ends on July 31, 2001 and that were written under
the agent account numbers listed in SCHEDULE 1.3.
ARTICLE 2
COVENANTS REGARDING EMPLOYEES
2.1 SELLER'S EMPLOYEES. All of the employees of Seller who are in
employment status on the day immediately prior to the Closing (the "AFFECTED
EMPLOYEES") shall cease their employment status with Seller on the Closing Date
and immediately thereafter shall be offered employment by Purchaser under terms
that recognize prior employment with Seller and its affiliated entities for
purposes of all benefit plans, programs, arrangements or other seniority-based
programs or benefits maintained by Purchaser on and after the Closing Date for
the benefit of the Affected Employees. The term "EMPLOYMENT STATUS" includes
any individual who is actively at work and any individual not actively at work
due to illness, short-term disability or sick leave, long-term disability,
authorized leave of absence, layoff for lack of work, or service in the Armed
Force of the United States.
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2.2 RETAINED RESPONSIBILITIES. Except to the extent such claims
constitute Assumed Liabilities, Seller shall be responsible for paying or
ensuring payment of claims incurred on or prior to the Closing Date under any
employee benefit programs in which Seller participates with respect to the
Affected Employees, in accordance with the terms and conditions of such
programs. A claim is "INCURRED" on the date the service or property that gives
rise to the claim is rendered or furnished, without regard to when the
individual who receives the service is billed.
2.3 EMPLOYEE PLANS. Effective as of the Closing Date, the
Purchaser shall assume the reserves corresponding to Seller's vacation and sick
pay plans for each Affected Employee, and shall permit the Affected Employees
to take any unused paid vacation and/or paid sick days that have accrued prior
to Closing in accordance with the terms of such plans or programs.
2.4 PAYROLL AND PAYROLL TAX. Seller shall pay directly all wages
and other remuneration due to Affected Employees in respect of the period prior
to Closing and there shall be a clean cutoff of payroll for payroll tax
purposes.
ARTICLE 3
CLOSING
The closing of the transactions to be affected hereunder (the
"CLOSING") shall be held contemporaneously with the execution and delivery of
this Agreement on July 31, 2000 (the "Closing Date") at the offices of
Purchaser, or at such place as shall be mutually agreed upon by Purchaser and
Seller.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser that the following
statements are true, correct and complete as of the date of this Agreement:
4.1 ORGANIZATION AND GOOD STANDING OF SELLER. Seller is a
corporation duty organized, validly existing and of active status under the
laws of the State of Florida and has all of the requisite corporate power and
authority to make the representations, warranties and agreements made
hereunder, to execute and deliver this Agreement and to perform its obligations
under this Agreement.
4.2 AUTHORIZATION OF AGREEMENT AND ENFORCEABILITY. This Agreement
and the other agreements and documents contemplated hereby have been duly and
validly authorized, executed and delivered by Seller and constitute the legal,
valid and binding obligations of Seller, enforceable against Seller in a
accordance with their respective terms.
4.3 TITLE TO PURCHASED ASSETS. Seller has good and marketable
title to the personal property contained in the Purchased Assets. At Closing,
Purchaser shall receive good and marketable title to all of the Purchased
Assets, free and clear of all liens, security interests or other claims.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that the following
statements are true, correct and complete as of the date of the Agreement:
5.1 ORGANIZATION AND GOOD STANDING OF PURCHASER. Purchaser is a
corporation duly organized, validly existing and of active status under the
laws of the State of Florida, and has all of the requisite corporate power and
authority to make the representations, warranties and agreements made
hereunder, to execute and deliver this Agreement and to perform its obligations
under this Agreement.
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5.2 AUTHORIZATION OF AGREEMENT AND ENFORCEABILITY. This Agreement
and the other agreements and documents contemplated hereby have been duly and
validly authorized, executed and delivered by Purchaser and constitute the
valid and legally binding obligations of Purchaser, enforceable against
Purchaser in accordance with their respective terms.
ARTICLE 6
DELIVERIES AT CLOSING
6.1 DELIVERIES BY SELLER. At Closing, Seller shall deliver or
cause to be delivered to Purchaser (1) a Xxxx of Sale in form and substance
reasonably satisfactory to Purchaser, (2) an Indemnification Agreement in form
and substance reasonably satisfactory to Buyer relative to a certain
NationsBank security interest on the Purchased Assets, and (3) if required,
payment of the amount determined in accordance with the provisions of Section
1.2 hereof.
6.2 DELIVERIES BY PURCHASER. At Closing, Purchaser shall deliver
to Seller (i) documentation evidencing the assumption of the Assumed Liabilities
in form and substance reasonably satisfactory to Seller and (ii) if required,
payment of the amount determined in accordance with the provisions of Section
1.3 hereof.
ARTICLE 7
GENERAL
7.1 NOTICES. All notices, requests, demands and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly delivered (a) on the
date of delivery if by personal delivery; or (b) on the date on which return
receipt is signed or delivery is refused if dispatched by certified or
registered first class mail, Federal Express, or similar service, postage
prepaid, return receipt requested, to the party to whom the same is so given:
If to Seller: IMS Direct, Inc.
000 Xxxxxxx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
if to Purchaser: Bankers Insurance Services, Inc.
000 Xxxxxxx Xxxxxx
Xx, Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
7.2 FURTHER ASSURANCES. After the Closing, each party shall, at
the reasonable request of the other and without further consideration, execute
and deliver all such further documents, and take such other action, as such
other party may reasonably request to consummate or effectuate the transactions
contemplated plated by this Agreement.
7.3 ENTIRE AGREEMENT. This Agreement (including the Schedules
hereto) supersedes all prior agreements and understandings, oral and written,
between the Parties with respect to the subject matter hereof, and this
Agreement together with the agreements and documents contemplated hereunder,
constitutes the entire agreement between the Parties.
7.4 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which, when executed, shall be deemed to be an
original, and all of which together shall be deemed to be one and the same
instrument.
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7.5 GOVERNING LAW. This Agreement shall be construed both as to
validity and performance and governed by the and enforced in accordance with
the laws of the State of Florida, without giving effect to any choice of law
principles.
7.6 SEVERABILITY. If any term, covenant, condition, or provision
of this Agreement or the application thereof to any circumstance shall be
invalid or unenforceable to any extent, the remaining terms, covenants,
conditions, and provisions of this Agreement shall not be affected, and each
remaining term, covenant, condition, and provision of this Agreement shall be
valid and shall be enforceable to the fullest extent permitted by law. If any
provision of this Agreement is so broadly as to be unenforceable, such
provision shall be interpreted to be only as broad as is enforceable.
7.7 AMENDMENTS. This Agreement may not be modified or changed
except by an instrument or instruments in writing signed by both Parties.
7.8 SUCCESSORS AND ASSIGNS. The covenants, agreements and
conditions contained or granted herein shall be binding upon and shall inure to
the benefit of Purchaser and Seller and their respective successors and
assigns.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first above written.
IMS DIRECT, INC. BANK INSURANCE SERVICES, INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ G. Xxxxxxx Xxxxxx
--------------------------------- ---------------------------------
Xxxxx Xxxxxxxxx G. Xxxxxxx Xxxxxx
Its: Secretary Its: Secretary
--------------------------------- ---------------------------------
Date: 9/6/2000 Date: 9/6/2000
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SCHEDULE 1.1
LIST OF PURCHASED ASSETS
Item # Equipment Description Net Book Value
------ --------------------- --------------
1 HP Laser Jet Printer 224.07
2 HP Laser Jet 400ONT Printer 1325.90
3 CTX 17" Monitor 127.46
4 CTX 17" Monitor 127.46
5 CTX 17" Monitor 127.46
6 Compaq 17" Monitor V75 187.96
7 Steel Case Furniture 265.91
8 Various Steel Case Furniture 146.26
9 Sales Logix Software 6073.42
10 Sales Logix Setup 19378.78
11 MS008 Handsfree Display Telephone 196.52
12 MS008 Handsfree Display Telephone 196.52
13 MS008 Handsfree Display Telephone 196.52
14 MS008 Handsfree Display Telephone 196.52
15 MS008 Handsfree Display Telephone 196.52
16 MS008 Handsfree Display Telephone 196.52
17 MS008 Handsfree Display Telephone 196.52
18 MS008 Handsfree Display Telephone 196.52
19 MS008 Handsfree Display Telephone 196.52
20 MS008 Handsfree Display Telephone 196.52
21 MS008 Handsfree Display Telephone 196.52
22 MS008 Handsfree Display Telephone 198.52
23 MS2518 Handsfree Display Telephone 196.52
24 MS2616 Handsfree Display Telephone 196.52
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30735.96
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SCHEDULE 1.2
LIST OF ASSUMED LIABILITIES
Accrued Compaq lease obligation (14,675.03) *(the relevant Compaq lease
equipment that is subject to
the lease is specified below)
Payroll accrual (7,637.01)
Payroll tax accrual (584.23) 0.0765
Vacation accrual (9,570.20)
Vacation tax accrual (732.12) 0.0765
*DETAILED COMPAQ COMPUTER LEASE OBLIGATION:
WK95R KCASALE 8002 10000 20 18 183.93 12 1,967.18
6843BW32A100 OMLACY 8002 10000 8 24 77.16 19 1,466.04
6843BW32D669 JDROUNDT 8002 10000 8 24 77.16 18 1,466.04
6843BW32A146 KCASALE 8002 10000 8 24 77.16 18 1,466.04
0000XX00X000 XXXXXXXX 8002 10000 8 24 77.16 19 1,466.04
6843BW32D693 VAKENDAL 8002 10000 8 24 77.16 19 1,466.04
6838BW32J167 SDSEANE 8002 10000 8 24 77.16 19 1,466.04
6848BW32F369 WXALVARE 8002 10000 13 24 61.85 16 969.60
6848BW32F731 NVASQUEZ 8002 10000 13 24 61.85 16 969.60
8848BW32F732 PECULVER 8002 10000 13 24 61.85 16 969.60
8914BW4PA847 DTWALKER 8002 10000 24 24 56.97 11 626.57
8914BW4PA803 KCASALE 8002 10000 24 24 56.97 11 626.57
6946CKP7K464 KCASALE 8002 10000 25 24 47.80 7 334.60
638CF03DQ805 OMLACY 8002 10000 7 48 11.70 19 222.30
638CF03DQ799 MDDENNAR 8002 10000 7 48 11.70 19 222.30
850CF03DF355 PECULVER 8002 10000 14 48 10.60 16 168.00
852CF03DH430 KCASALE 8002 10000 15 48 10.54 15 158.10
850CF03DF090 WXALVARE 8002 10000 18 48 11.43 13 148.69
922CF47DF425 KCASALE 8002 10000 25 48 10.86 11 119.46
741GB02AB191 VAKENDAL 8002 10000 4 48 20.45 21 429.45
905GO02AC521 LOROUNDT 8002 10000 25 48 16.36 11 179.85
------ ---------
19,527.46
4,852.43
---------
14,675.03
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SCHEDULE 1.3
AGENT ACCOUNT NUMBERS
1. 62001
2. 62003
3. 62008
4. 62009
5. 62012
6. 62013
7. 62014
8. 62015
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INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is executed to be effective as of the
31st day of July, 2000 by Insurance Management Solutions Group, Inc., a (herein,
"Indemnitor").
R E C I T A L S :
- - - - - - - -
NOW, THEREFORE, IN CONSIDERATION OF the mutual covenants and
agreements hereinafter set forth, and for other good and valuable
consideration, Indemnitor shall indemnify Bankers Insurance Services, Inc. and
hold its officers, directors, employees and agents (herein collectively called,
"Indemnified Parties") harmless against any expenses (including, but not
limited to a reasonable attorney's fees in all investigations, trials, appeals,
bankruptcies and administrative proceedings) losses or other liabilities and
judgments (including without limitation, any expenses reasonably incurred by an
Indemnified Party in connection with investigating, defending and appealing any
claims alleged or proceedings brought against the Indemnified Party, any
amounts paid in settlement of any such claims or proceedings to the extent such
settlement is effected with the consent of the Indemnitor which consent shall
not be unreasonably withheld or delayed) that the Indemnified Party may
reasonably incur by reason of:
The exercise of a security interest that is held by
NationsBank, N.A., pursuant to a certain Loan Agreement by
and between NationsBank, N.A. and Insurance Management
Solutions Group, Inc., in certain "Purchase Assets" (as that
term is defined in the Asset Purchase Agreement by and
between Bankers Insurance Services, Inc. and IMS Direct)
If an Indemnified Party should bring a court action alleging breach of this
Indemnification Agreement, the prevailing party shall be entitled to recover
all of its legal expenses, including reasonable attorney's fees and costs
(including legal expenses for any appeals taken), and to have the same awarded
as part of the judgement in the proceeding in which such legal expenses and
attorney's fees were incurred.
IN WITNESS WHEREOF, the Indemnitor has caused this Indemnification
Agreement to be executed as of the day and year first above set forth.
Insurance Management Solutions Group, Inc.
BY: /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
As Its: CFO
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Date: 9/6/00
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XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS: That, INSURANCE MANAGEMENT SOLUTIONS
GROUP, INC., its subsidiaries and affiliates (including, but not limited to
IMS DIRECT, INC. and INSURANCE MANAGEMENT SOLUTIONS, INC.) of the first part,
for and in consideration of the sum of Ten Dollars, in lawful money (and other
good and valuable consideration unto it moving) to it paid by BANKERS INSURANCE
SERVICES, INC., of the second part, the receipt of which is hereby acknowledged
by it, has granted, bargained, sold, transferred, set over and delivered, and
by these presents does grant, bargain, sell, transfer, set over and deliver
unto the party of the second part, their successors and assigns, all those
certain goods and chattels, described as follows:
All of party of the first parts right, title and interest in the
assets listed in the attached Schedule 1.1.
TO HAVE AND TO HOLD the same unto the party of the second part, its
and assigns forever. And the party of the first part, for itself and its
successors, hereby covenants to and with the party of the second part its
successors and assigns that it is the lawful owner of the said goods and
chattels; that subject to the foregoing limitations, they are free from all
liens and encumbrances; that it has good right to sell the same as aforesaid,
and that it will warrant and defend the same against the lawful claims and
demands of all persons whomsoever subject to the foregoing limitations.
IN WITNESS WHEREOF, the party of the first part has caused his name to
be hereunto subscribed and his seal to be affixed this 31st day of July, 2000.
IMS Direct, Inc.
BY: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
As Its: Secretary
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Date: 9/6/00
--------------------------------
INSURANCE MANAGEMENT SOLUTIONS, INC.
BY: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
As Its: CFO
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Date: 9/6/00
--------------------------------
INSURANCE MANAGEMENT SOLUTIONS, GROUP, INC.
BY: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
As Its: CFO
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Date: 9/6/00
--------------------------------
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ASSIGNMENT OF FLOOD INSURANCE MONITORING AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that IMS DIRECT, INC., a Florida
corporation, in consideration of the sum of Ten Dollars ($10.00) and other
valuable consideration in hand paid, receipt whereof is hereby acknowledged,
does hereby assign and transfer over unto BANKERS INSURANCE SERVICES, INC., or
its assigns, all of it's right, title and interest in and to that certain Flood
Insurance Monitoring Agreement entered into on the 1st day of August, 1996 by
and between IMS Direct, Inc.; NationsBank, N.A.; NationsBank Insurance Services
and NationsBank Xxxxxxxx Banking Center.
IN WITNESS WHEREOF, the undersigned has set their hands and seals as of the 31st
day of July, 2000.
IMS Direct, Inc.
BY: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx
As Its: Secretary
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Date: 9/6/00
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ACCEPTANCE
I HEREBY ACCEPT the Assignment of the Flood Insurance Monitoring
Agreement described above.
Bankers Insurance Services, Inc.
BY: /s/ G. Xxxxxxx Xxxxxx
----------------------------------
G. Xxxxxxx Xxxxxx
As Its: Secretary
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Date: 9/6/00
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