EXHIBIT 10.1
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SHARE EXCHANGE AND PURCHASE AGREEMENT
BY AND BETWEEN
BRIT INSURANCE HOLDINGS PLC
AND
XXXX.XXX, INC.
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MARCH 30, 2001
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THIS AGREEMENT dated as of the 30th day of March, 2001, is made and entered
into by and between BRiT Insurance Holdings plc, a company organized under the
laws of England and Wales with registered number 03121594, whose registered
office is at 00 Xxxxxxxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx ("BRiT"), and
xxxx.xxx, Inc., a company incorporated in Delaware and having its principal
office at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx ("ebix").
Capitalized terms not otherwise defined herein have the meanings ascribed to
them in Section 1.1.
RECITALS
(A) BRiT wishes to acquire a certain number of shares of common stock,
par value $.10 per share (the "SHARES"), of ebix;
(B) ebix wishes to acquire a certain number of shares of common stock,
par value $.01 per share (the "IBS SHARES"), of Insurance Broadcast
Systems, Inc. ("IBS"); and
(C) BRiT and ebix have mutually agreed that BRiT shall purchase and ebix
shall issue and sell to BRiT, up to 6,944,000 Shares in consideration for
which BRiT shall pay a cash sum of up to US$ 7,000,000 and shall transfer to
ebix such number of IBS Shares as is determined in accordance with
Section 2.3 hereof, such transactions to occur in two tranches as set forth
below.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt of which and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. DEFINITIONS
1.1 In this Agreement the following words and expressions shall have the
following meanings unless the context requires otherwise:
(a) "AFFILIATE" means any person that directly or indirectly, through one or
more intermediaries, controls or is controlled by or is under common
control with the person specified;
(b) "AGREEMENT" means this Share Exchange and Purchase Agreement;
(c) "APPROVAL TRANSACTIONS" has the meaning set forth in Section 6.5;
(d) "AUDITED FINANCIAL STATEMENTS" has the meaning set forth in
Section 4.8;
(e) "BALANCE SHEET DATE" has the meaning set forth in Section 4.8;
(f) "BRiT" has the meaning set forth in the Recitals;
(g) "BRIT WARRANTIES" means the representations and warranties under
Article 5 of this Agreement;
(h) "BUSINESS DAY" means each day other than a Saturday or Sunday on which
banks are generally open for business in London, England and New York
City;
(i) "CLAIM NOTICE" means written notification pursuant to Section 9.02(a) of
a Third Party Claim as to which indemnity under Section 9.01 is sought by
an Indemnified Party, enclosing a copy of all papers served, if any, and
specifying the nature of and basis for such Third Party Claim and for the
Indemnified Party's claim against the Indemnifying Party under
Section 9.01, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith;
(j) "CLOSING DATES" means the First Closing Date and the Second Closing Date
and "Closing Date" means either the First Closing Date or the Second
Closing Date, as the context requires;
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(k) "COMMON STOCK" means the common stock, par value $.10 per share, of
ebix;
(l) "CUT-OFF DATE" means, with respect to any representation, warranty,
covenant or agreement contained in this Agreement, the date on which such
representation, warranty, covenant or agreement ceases to survive as
provided in Section 11.11, as applicable;
(m) "DISPUTE PERIOD" means the period ended 30 calendar days following
receipt by an Indemnifying Party of either a Claim Notice or an Indemnity
Notice;
(n) "ebix" has the meaning set forth in the Recitals;
(o) "ebix SUBSIDIARIES" has the meaning set forth in Section 4.3;
(p) "ebix WARRANTIES" means the representations, warranties and undertakings
under Article 4 of this Agreement;
(q) "EXCHANGE ACT" has the meaning set forth in Section 4.8;
(r) "FIRST CLOSING" means the closing of the transactions contemplated
herein pursuant to Section 3.2;
(s) "FIRST CLOSING CONDITIONS" means the conditions set out in Article 7 of
this Agreement;
(t) "FIRST CLOSING DATE" means the date on which the First Closing occurs
(which date shall not be later than April 20, 2001 without the prior
written agreement of the Parties);
(u) "FORM 10-K" has the meaning set forth in Section 4.7;
(v) "FORM 10-Qs" has the meaning set forth in Section 4.7;
(w) "FORM 8-Ks" has the meaning set forth in Section 4.7;
(x) "FRAMEWORK AGREEMENT" means the agreement to be negotiated and entered
into between BRiT and ebix pursuant to Section 6.11;
(y) "GAAP" has the meaning set forth in Section 4.8;
(y) "IBS" has the meaning set forth in the Recitals;
(z) "IBS SHARES" has the meaning set forth in the Recitals;
(aa) "INDEMNIFIED PARTY" means any person against whom a claim for
indemnification is being asserted under any provision of Article 9;
(bb) "INDEMNITY NOTICE" means written notification pursuant to
Section 9.02(b) of a claim for indemnity under Article 9 by an
Indemnified Party, specifying the nature of and the basis for such claim,
together with the amount or, if not then reasonably ascertainable, the
estimated amount, determined in good faith, of such claim;
(cc) "INTELLECTUAL PROPERTY" has the meaning set forth in Section 4.12;
(dd) "LOSS" means any and all damages, fines, penalties, deficiencies,
losses and expenses (including without limitation interest, court costs,
reasonable fees of attorneys, accountants and other experts or other
reasonable expenses of litigation or other proceedings or of any claim,
default or assessment);
(ee) "MATERIAL ADVERSE EFFECT" on a specified entity means a material
adverse effect on the financial condition, operating results or business
of the entity and its subsidiaries taken as a whole;
(ff) "PARTIES" means named parties to this Agreement, and "PARTY" means
either of them;
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(gg) "REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement
to be entered into between BRiT and ebix pursuant to the terms of this
Agreement substantially in the form attached hereto as Exhibit A;
(ii) "RESALE REGISTRATION STATEMENT" means any registration form under the
Securities Act pursuant to which ebix can register the Shares with the
SEC to permit public resales of the Shares by BRiT in the United States
from time to time;
(jj) "SEC" has the meaning set forth in Section 4.7;
(kk) "SEC DOCUMENTS" has the meaning set forth in Section 4.7;
(ll) "SECOND CLOSING" means the closing of the transactions contemplated
herein pursuant to Section 3.3;
(mm)"SECOND CLOSING DATE" has the meaning set forth in Section 3.4;
(nn) "SECOND CLOSING CONDITIONS" means the conditions set out in Article 8
of this Agreement;
(oo) "SECURITIES ACT" has the meaning set forth in Section 4.8;
(pp) "SHARES" has the meaning set forth in the Recitals;
(qq) "THIRD PARTY CLAIM" has the meaning set forth in Section 9.02(a); and
(rr) "TRANSACTION AGREEMENTS" means the Share Exchange and Purchase
Agreement and the Registration Rights Agreement.
1.2 Unless the context of this Agreement otherwise requires, (a) words of
either gender include the other gender; (b) words using the singular or
plural number also include the plural or singular number, respectively;
(c) the terms "hereof", "herein", "hereby" and derivative or similar words
refer to this entire Agreement; (d) the terms "Article" or "Section" refer
to the specified Article or Section of this Agreement and (e) the
expressions "ebix," "BRiT" and "IBS" shall, where the context permits,
include their respective successors and permitted assigns. All accounting
terms used herein and not expressly defined herein shall have the meanings
given to them under U.S. GAAP.
2. PURCHASE AND SALE
2.1 Subject to satisfaction of the First Closing Conditions and on the terms
set forth in this Agreement, at the First Closing ebix shall issue and sell
to BRiT, and BRiT shall purchase from ebix, 2,240,000 of the Shares, and in
consideration therefor BRiT shall make a cash payment to ebix in the amount
of US$ 2,800,000.
2.2 Subject to satisfaction of the Second Closing Conditions and on the terms
set forth in this Agreement, at the Second Closing ebix shall issue and
sell to BRiT, and BRiT shall purchase from ebix, 4,704,000 of the Shares,
and in consideration therefor: (a) BRiT shall make a cash payment to ebix
in the amount of US$ 4,200,000; and (b) BRiT shall transfer to ebix all of
the right, title and interest in such number of IBS Shares as provided for
by Section 2.3.
2.3 The number of IBS Shares to be transferred to ebix pursuant to
Section 2.2 shall be calculated as follows:
Z = (.28 X I)
where Z equals the number of IBS Shares to be transferred and I equals the
number of IBS Shares outstanding on the date of this Agreement. Such number
of IBS Shares shall be adjusted (and appropriate deliveries shall be made as
promptly as reasonably practicable, if necessary because of such adjustment,
after the Second Closing Date) to account for any stock splits, stock
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dividends, reclassifications, recapitalizations and similar events, the
record date for which occurs after the date of this Agreement and prior to
the Second Closing Date or the record date for which occurred prior to the
date of this Agreement unless the payment date also occurred prior to the
date hereof.
3. CLOSINGS
3.1 The Closings shall take place at the offices of Xxxxxxxxxxxx Xxxx &
Xxxxxxxxx, Chicago, Illinois, or such other place as the Parties may
mutually agree on the respective Closing Dates at 12:00 noon local time.
3.2 Subject to Article 7, on the First Closing Date:
(a) ebix shall issue to BRiT and deliver as provided in
Section 3.2(b)(iii) below the Shares specified in Section 2.1, credited
as fully paid and nonassessable;
(b) ebix shall deliver or caused to be delivered to BRiT:
(i) a certificate dated the First Closing Date and executed by the
President and Chief Executive Officer of ebix, substantially in the
form and to the effect of Exhibit B hereto;
(ii) a certificate dated the First Closing Date and executed by the
Secretary of ebix, substantially in the form and to the effect of
Exhibit C hereto;
(iii) duly issued share certificate(s) in the name of BRiT in respect of
the Shares specified in Section 2.1;
(iv) the Registration Rights Agreement, duly executed by ebix;
(v) an opinion from Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel to ebix,
dated the First Closing Date, substantially in the form and to the
effect of Exhibit D hereto; and
(vi) all other documents required to be delivered by ebix pursuant to
the Transaction Documents at or prior to the First Closing; and
(c) BRiT shall deliver or caused to be delivered to ebix:
(i) a certificate dated the First Closing Date and executed by the Chief
Executive Officer of BRiT, substantially in the form and to the
effect of Exhibit E hereto;
(ii) a certificate dated the First Closing Date and executed by the
Secretary of BRiT, substantially in the form and to the effect of
Exhibit F hereto;
(iii) U.S.$2,800,000 in immediately available funds by wire transfer to
such account or accounts as specified by ebix in a written notice
delivered to BRiT at least two full business days prior to the
First Closing Date;
(iv) the Registration Rights Agreement, duly executed by BRiT;
(v) an opinion from Xxxxxx & Whitney, counsel to BRiT, dated the First
Closing Date, substantially in the form and to the effect of
Exhibit G hereto; and
(vi) all other documents required to be delivered by BRiT at or prior to
the First Closing.
3.3 Subject to Article 8, on the Second Closing Date:
(a) ebix shall issue and sell to BRiT the Shares specified in Section 2.2,
credited as fully paid and nonassessable;
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(b) ebix shall deliver or caused to be delivered to BRiT:
(i) a certificate dated the Second Closing Date and executed by the
President and Chief Executive Officer of ebix, substantially in the
form and to the effect of Exhibit B hereto;
(ii) a certificate dated the Second Closing Date and executed by the
Secretary of ebix, substantially in the form and to the effect of
Exhibit C hereto;
(iii) duly issued share certificate(s) in the name of BRiT in respect of
the Shares specified in Section 2.2;
(iv) an opinion from Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, counsel to ebix,
dated the Second Closing Date, substantially in the form and to the
effect of Exhibit D hereto; and
(v) all other documents required to be delivered by ebix at or prior to
the Second Closing;
(c) BRiT shall transfer to ebix and deliver as provided in
Section 3.3(d) (iii) below the number of IBS Shares specified in
Section 2.3; and
(d) BRiT shall deliver or caused to be delivered to ebix:
(i) a certificate dated the Second Closing Date and executed by the
Chief Executive Officer of BRiT, substantially in the form and to
the effect of Exhibit E hereto;
(ii) a certificate dated the Second Closing Date and executed by the
Secretary of BRiT, substantially in the form and to the effect of
Exhibit F hereto;
(iii) the number of IBS Shares determined in accordance with Section 2.3
to be sold to ebix on the Second Closing Date issued in the name of
ebix;
(iv) U.S.$4,200,000 in immediately available funds by wire transfer to
such account or accounts as specified by ebix in a written notice
delivered to BRiT at least two full business days prior to the
Second Closing Date;
(v) an opinion from Xxxxxx & Whitney LLP, counsel to BRiT, dated the
Second Closing Date, substantially in the form and to the effect of
Exhibit G hereto; and
(vi) all other documents required to be delivered by BRiT at or prior to
the Second Closing.
3.4 The "SECOND CLOSING DATE" shall be the Business Day notified by BRiT to
ebix in writing that is at least five days subsequent to the date that is
the later of (i) the date of the execution and delivery by the Parties of
the Framework Agreement (as contemplated by Section 6.11) and (ii) the date
on which ebix has obtained requisite approval from its stockholders of the
Approval Transactions (as contemplated by Section 6.5) (but no more than
ten days after the later of such events if the other conditions to such
Second Closing have been satisfied or waived); PROVIDED THAT such date
shall not be later than June 29, 2001, unless otherwise consented to by
BRiT (in its sole discretion) at the written request of ebix.
4. REPRESENTATIONS AND WARRANTIES OF EBIX
Ebix hereby represents and warrants to BRiT that, except as disclosed in its
SEC Documents (as defined herein) filed with the SEC from January 1, 2000 to
the date hereof or as otherwise disclosed to BRiT in the Disclosure Schedule
attached hereto,which Schedule shall specifically identify the relevant
section hereof:
4.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. ebix is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. ebix has all requisite corporate power and authority to
own and operate its properties and assets, to execute and
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deliver this Agreement and the other Transaction Agreements, to issue, sell
and deliver the Shares (subject, in the case of the Second Closing, to
obtaining approval of ebix's stockholders and completion of such other
actions as are necessary to amend ebix's Certificate of Incorporation to
adequately increase the number of authorized shares of Common Stock to
permit the issuance of the Shares at the Second Closing), to carry out the
provisions of this Agreement and the other Transaction Agreements (subject,
in the case of the Second Closing, to obtaining approval of ebix's
stockholders and completion of such other actions as are necessary to amend
ebix's Certificate of Incorporation to adequately increase the number of
authorized shares of Common Stock to permit the issuance of the Shares at
the Second Closing) and to carry on its business as presently conducted and
as presently proposed to be conducted. ebix is duly qualified and is
authorized to do business and is in good standing as a foreign corporation
in each jurisdiction where the failure to be so qualified would have a
material adverse effect on ebix's business as now conducted.
4.2 AUTHORIZATION; BINDING OBLIGATIONS. All actions on the part of ebix and
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement and the other Transaction
Agreements, the performance of all obligations of ebix hereunder and
thereunder and the authorization, sale, issuance and delivery of the Shares
pursuant hereto have been taken (subject, in the case of the Second
Closing, to obtaining approval of ebix's stockholders and completion of
such other actions as are necessary to amend ebix's Certificate of
Incorporation to adequately increase the number of authorized shares of
Common Stock to permit the issuance of the Shares at the Second Closing and
to amend ebix's by-laws to increase the size of its Board of Directors).
This Agreement and each Transaction Agreement have been duly executed and
delivered by ebix and (assuming the due authorization, execution and
delivery hereof and thereof by BRiT) this Agreement and each Transaction
Agreement is a valid and binding obligation of ebix enforceable in
accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights and (b) general principles of
equity that restrict the availability of equitable remedies. The sale of
the Shares is not subject to any preemptive or similar rights or rights of
first refusal that have not been properly waived or complied with.
4.3 SUBSIDIARIES. Set forth on the Disclosure Schedule hereto, is a list of
all entities in which ebix beneficially owns, directly or indirectly, 50%
or more of the outstanding stock or other equity interests (collectively,
the "EBIX SUBSIDIARIES") as of the date of this Agreement. Each ebix
Subsidiary has been duly organized and is validly existing under the laws
of its jurisdiction of organization, is not in liquidation or receivership,
and has the power and authority (corporate or other) to own its properties
and conduct its business as described in the SEC Documents (as defined
below); and each ebix Subsidiary is duly qualified to do business as a
foreign corporation in each jurisdiction where the failure to be so
qualified would have a material adverse effect on ebix's business as now
conducted. All of the issued and outstanding capital stock of each ebix
Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable; and the capital stock or equity interests of each ebix
Subsidiary owned by ebix, directly or through subsidiaries, is owned free
from liens, encumbrances and defects other than as set forth in the SEC
Documents or which would not have a material adverse effect on ebix.
4.4 CAPITALIZATION. As of the date hereof the authorized capital stock of ebix
consists solely of (a) 20,000,000 shares of Common Stock, of which
11,382,182 shares are issued and outstanding, and 2,000,000 shares of
Preferred Stock of which no shares are issued and outstanding and 322,383
shares have been previously issued and then redeemed or reacquired and
cannot be reissued. Except as set forth on the Disclosure Schedule, as set
forth above or as described or expressly contemplated by the SEC Documents
(as defined herein), as of the date hereof there
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are no outstanding rights (including without limitation, preemptive rights)
warrants or options to acquire, or instruments convertible into or
exchangeable for, any material number of shares of Common Stock or any
other class of shares or equity interest in ebix or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any material number of
shares of capital stock of ebix or any ebix Subsidiary, any such
convertible or exchangeable securities or any such rights, warrants or
options. As of the date hereof, each issued share of Common Stock is duly
authorized, validly issued, fully paid and non-assessable.
4.5 VALIDLY ISSUED SHARES. When issued in compliance with the provisions of
this Agreement, the Shares will be validly issued, fully paid and
non-assessable and will be free of any restrictions, limits, claims, liens
or other encumbrances; PROVIDED, HOWEVER, that the Shares will be subject
to restrictions on transfer under state and/or federal securities laws as
set forth herein or as otherwise required by such laws at the time a
transfer is proposed.
4.6 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for the filings, permits,
authorizations, consents and approvals as may be required under federal
and/or state securities laws, laws of England and Wales and applicable
regulations of the NASDAQ Stock Market or otherwise set forth in the
Disclosure Schedule, none of the execution, delivery or performance of this
Agreement or the other Transaction Agreements by ebix, the consummation by
ebix of the transactions contemplated hereby or thereby or compliance by
ebix with any of the provisions hereof will (a) conflict with or result in
any breach of any provision of the Certificate of Incorporation or bylaws
of ebix (except the need to amend the by-laws to increase the size of the
ebix Board and to amend the Certificate of Incorporation to adequately
increase the number of shares of Common Stock to permit the issuance of the
Shares at the Second Closing) or of any ebix Subsidiary, (b) except as
noted in subclause (a) require any filing with, or permit, authorization,
consent or approval of, any governmental entity, (c) result in a violation
or breach of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which ebix or any of the ebix
Subsidiaries is a party or by which any of them or any of their respective
properties or assets may be bound or (d) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to ebix, any of
the ebix Subsidiaries or any of their properties or assets, excluding from
the foregoing clauses (b), (c) and (d) such violations, breaches or
defaults which would not, individually or in the aggregate, have a material
adverse effect on ebix's ability to consummate the transactions or a
Material Adverse Effect on ebix.
4.7 SEC DOCUMENTS. ebix has made available to BRiT, prior to the date hereof,
copies of its Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 ("FORM 10-K"), its Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 2000, June 30, 2000 and September 30, 2000
(the "FORM 10-QS"), the Current Reports on Form 8-K filed since January 1,
2000 (the "FORM 8-KS"), and all other registration statements, reports and
proxy statements filed by ebix with the Securities and Exchange Commission
("SEC") on or after January 1, 2000 (the Form 10-K, the Form 10-Qs, the
Form 8-Ks and such registration statements, reports and proxy statements,
are collectively referred to herein as the "SEC DOCUMENTS"). Each of the
SEC Documents, as of its respective date (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such
filing), did not, and each of the registration statements, reports and
proxy statements filed by ebix with the SEC after the date hereof and prior
to the respective Closings, will not, as of the date thereof (or if amended
or superseded by a filing prior to the date of such Closing, then on the
date of such filing), contain any untrue statement of a material fact or
omit to state a material fact
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necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. ebix is not a
party to any material contract, agreement or other arrangement which was
required to have been filed as an exhibit to the SEC Documents that is not
so filed.
4.8 FINANCIAL STATEMENTS. ebix has made available to BRiT copies of its
audited financial statements (the "AUDITED FINANCIAL STATEMENTS") for the
fiscal year ended December 31, 1999, and its unaudited financial statements
for the nine-month period ended September 30, 2000 (the "BALANCE SHEET
DATE") (collectively, the Audited Financial Statements and such unaudited
financial statements are the "FINANCIAL STATEMENTS"). Since the Balance
Sheet Date, ebix has duly and timely filed with the SEC all registration
statements, reports and proxy statements required to be filed by it under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
the Securities Act of 1933, as amended (the "SECURITIES ACT"). The audited
and unaudited consolidated financial statements of ebix included in the SEC
Documents filed prior to the date hereof fairly present, in conformity with
United States generally accepted accounting principles ("GAAP") (except as
permitted by Form 10-Q) applied on a consistent basis (except as may be
indicated in the notes thereto), the consolidated financial position of
ebix and its consolidated subsidiaries as at the dates thereof and the
consolidated results of their operations and cash flows for the periods
then ended (subject to normal year end audit adjustments in the case of
unaudited interim financial statements).
4.9 ABSENCE OF CERTAIN CHANGES. Since the Balance Sheet Date and other than in
the ordinary course or as set forth in the Disclosure Schedule, there has
not been:
(a) any declaration, setting aside or payment of any dividend or other
distribution of the assets of ebix or any ebix Subsidiary with respect to
any shares of capital stock of ebix or any ebix Subsidiary or any
repurchase, redemption or other acquisition by ebix or any ebix
Subsidiary of a material number of the outstanding shares of ebix's
capital stock;
(b) any damage, destruction or loss, whether or not covered by insurance,
except for such occurrences that have not resulted, and are not expected
to result in a Material Adverse Effect on ebix;
(c) any waiver by ebix or any ebix Subsidiary of a valuable right or of a
material debt owed to it, except for such waivers that have not resulted
and are not expected to result, in a Material Adverse Effect on ebix;
(d) any material change or amendment to, or any waiver of any material
rights under a material contract or arrangement by which ebix or any ebix
Subsidiary or any of their respective, assets or properties is bound or
subject, except for changes, amendments, or waivers that are expressly
provided for or disclosed in this Agreement or that have not resulted,
and are not expected to result, in a Material Adverse Effect on ebix;
(e) any material change by ebix in its accounting principles, methods or
practices or in the manner it keeps its accounting books and records,
except any such change required by a change in GAAP; or
(f) any other event or condition of any character, except for such events
and conditions described or contemplated in the SEC Documents or that
have not resulted, and are not expected to result, either individually or
collectively, in a Material Adverse Effect on ebix.
4.10 MATERIAL OBLIGATIONS. ebix has no material liability or obligation of a
type that would be required by GAAP to be reflected on the balance sheet of
ebix if prepared on the date hereof, either accrued, absolute contingent or
otherwise (individually or in the aggregate), except (a) the liabilities
and obligations set forth in the Financial Statements and (b) liabilities
and obligations
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which have been incurred subsequent to September 30, 2000, in the ordinary
course of business which have not been, either in any case or in the
aggregate, material.
4.11 MATERIAL CONTRACTS AND COMMITMENTS.
(a) To the best of ebix's knowledge, all of the material contracts,
agreements and instruments to which ebix or any of the ebix Subsidiaries
is a party are valid, binding and in full force and effect in all
material respects, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law
governing specific performance, injunctive relief or other equitable
remedies.
(b) Except as set forth in the Disclosure Schedule, there are no material
agreements, understandings or proposed transactions between ebix or any
of the ebix Subsidiaries and any of its officers, directors, affiliates
or any affiliate thereof. There are no agreements, understandings,
instruments, contracts, proposed transactions, judgments, orders, writs
or decrees to which ebix is a party or by which ebix or any of the ebix
Subsidiaries is bound which involve (i) the license of any patent,
copyright, trade secret or other proprietary right to or from ebix or any
ebix Subsidiary, (ii) provisions materially restricting or negatively
affecting the development, manufacture or distribution of ebix's or its
Subsidiaries products or services or (iii) indemnification by ebix or any
ebix Subsidiary with respect to infringements of proprietary rights.
(c) Except as contemplated by the Registration Rights Agreement, ebix has no
agreement or commitment to register shares of its capital stock with the
SEC other than as set forth on the Disclosure Schedule.
4.12 INTELLECTUAL PROPERTY.
(a) ebix (including, for purposes of Section 4.12, the ebix Subsidiaries)
owns, or is licensed to use, all trademarks, service marks, trade names,
copyright, internet domain names, trade secrets, information, proprietary
rights and processes (the "INTELLECTUAL PROPERTY") necessary for its
business as now conducted and, to ebix's knowledge, as proposed to be
conducted without any conflict with or infringement of the rights of
others. ebix owns no patents and has no pending patent applications. ebix
is not obligated to make any material payments by way of royalties, fees
or otherwise to any owner or licensor of any patent, trademark, trade
name, copyright or other intangible asset, with respect to the use
thereof or in connection with the conduct of its business, or otherwise.
ebix has not granted any third party any option, license or other right
of any kind to the Intellectual Property. ebix does not license any
technology from any third party other than for internal use and other
than such licenses arising from the purchase of "off the shelf" or
standard products. Except as set forth on the Disclosure Schedule, ebix
owns or has the unrestricted right to use all trade secrets, including
know-how, customer lists, inventions, designs, processes, computer
programs and technical data necessary to the development, operation and
sale of all products and services sold or proposed to be sold by it, free
and clear of any rights, liens or claims of others. Except as set forth
in the Disclosure Schedule, ebix has no knowledge of any violation or
infringement by a third party of any of ebix's rights in the Intellectual
Property. Except as set forth in the Disclosure Schedule, ebix has not
received any communications alleging that ebix has violated or, by
conducting its business as proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or
other proprietary rights of any other person or entity, nor is ebix aware
of any basis for any such violation. ebix is not aware, without special
or specific investigation, that any of its employees, officers,
consultants or contractors are obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or
subject to any judgment, decree or order of any court or administrative
agency, that would interfere with the use of his or her best efforts to
promote the interests of
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ebix or that would conflict with ebix's business as conducted or as
proposed to be conducted. Neither the execution nor delivery of this
Agreement, nor the carrying on of ebix's business by the employees of
ebix, nor the conduct of ebix's business as proposed, will conflict with
or result in a breach of the terms, conditions or provisions of, or
constitute a default under, any contract, covenant or instrument under
which any of such employees, officers, consultants or contractors is, to
the best of ebix's knowledge, without special or specific investigation,
now obligated. ebix has taken reasonable security measures to protect the
Intellectual Property.
(b) Each employee (including independent contractors, if any) and each
officer of ebix has executed an employee confidential information and
invention agreement. Such proprietary information agreements constitute
valid and binding obligations of ebix and such persons, enforceable in
accordance with their respective terms, subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunction relief or
other equitable remedies. ebix has no knowledge, without special or
specific investigation, that any of its employees is obligated under any
contract (including licenses, covenants or commitments of any nature) or
other agreement or subject to any judgment, decree or order of any court
of administrative agency, that would interfere with the use of his or her
best efforts to promote the interests of ebix or that would conflict with
ebix's business as currently conducted. ebix has no reason to believe it
is or will be necessary to utilize any inventions of any of its employees
made prior to their employment by ebix except for any such inventions
that are in the public domain.
4.13 TITLE TO PROPERTIES AND ASSETS; LIENS, ETC.
(a) Each of ebix and the ebix Subsidiaries has good and marketable title to
all properties and assets and has good title to all its leasehold
interests necessary for its business as currently conducted in all
material respects, in each case subject to no mortgage, pledge, lien,
lease (in the case of owned properties), encumbrance or charge, other
than (i) the lien of current taxes not yet due and payable, and
(ii) possible minor liens and encumbrances which do not in any case
materially detract from the value of the property subject thereto or
materially impair the operations of ebix, and which have not arisen
otherwise than in the ordinary course of business.
(b) The buildings, equipment and other tangible assets of ebix and the ebix
Subsidiaries used by ebix and the ebix Subsidiaries in the conduct of
their business are, in all material respects, in good condition and
repair, ordinary wear and tear excepted, and are adequate and suitable
for the purposes for which they are currently being used.
4.14 COMPLIANCE WITH OTHER INSTRUMENTS, NONE BURDENSOME, ETC. None of ebix or
the ebix Subsidiaries is in violation of any term of its Certificate of
Incorporation or bylaws, as each are amended to date, or in any material
respect of any term or provision of any material mortgage, indebtedness,
indenture, contract, agreement, instrument, judgment or decree, and none of
ebix or the ebix Subsidiaries is in violation of any law, order, statute,
rule or regulation applicable to ebix or the ebix Subsidiaries except for
such violations that have not and would not result in a Material Adverse
Effect on ebix. The execution, delivery and performance of and compliance
with this Agreement and the other Transaction Agreements, and (subject, in
the case of the Second Closing, to obtaining approval of ebix's
stockholders and completion of such other actions as are necessary to amend
ebix's Certificate of Incorporation to adequately increase the number of
authorized shares of Common Stock to permit the issuance of the Shares at
the Second Closing) the issuance of the Shares have not resulted and will
not, based upon facts as they exist today, result (a) in any violation of,
or conflict with, or constitute a default under, ebix's Certificate of
Incorporation or bylaws, as amended to date (except the need to amend the
by laws to increase the size of the ebix Board), or (b) in any material
violation of, conflict with or default under any
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of its agreements, nor result in the creation of, any mortgage, pledge,
lien, encumbrance or charge upon any of the material properties or assets
of ebix and the ebix Subsidiaries.
4.15 LITIGATION, ETC. Except as set forth in the Disclosure Schedule, there are
no actions, suits, proceedings or investigations pending against ebix, the
ebix Subsidiaries or their properties before any court or governmental
agency (nor, to the best knowledge of the executive officers of ebix after
inquiry of all of the vice presidents of ebix, is there any threat
thereof), which could reasonably be expected to have a Material Adverse
Effect on ebix or materially adversely affect the consummation of the
transactions contemplated hereby). To the best knowledge of the executive
officers of ebix after inquiry of all of the vice presidents of ebix, there
is no reasonable basis for any specific claim that could reasonably be
expected to result in a Material Adverse Effect and that is probable of
assertion. Ebix is not a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by
ebix currently pending or which ebix intends to initiate.
4.16 BROKERS OR FINDERS. ebix has not engaged any brokers, finders or agents,
and BRiT has not incurred, and will not incur, directly or indirectly, as a
result of any action taken by ebix, any liability for brokerage or finders'
fees or agents' commissions or any similar charges in connection with the
Agreements. In the event that the preceding sentence is in any way
inaccurate, ebix hereby agrees to indemnify and hold harmless BRiT from any
liability for any commission or compensation in the nature of a finder's
fee (and the costs and expenses of defending against such liability or
asserted liability) for which BRiT or any of its officers, partners,
employees or representatives is responsible.
4.17 TAX RETURNS AND PAYMENTS. ebix has timely filed all tax returns (federal,
state and local) required to be filed by it. All such tax returns are true
and correct in all material respects. All taxes shown to be due and payable
on such returns, any assessments imposed, and all other taxes due and
payable by ebix on or before each Closing have been paid or will be paid
prior to the time they become delinquent. Ebix has not been advised
(a) that any of its returns, federal, state or other, have been or are
being audited as of the date hereof, or (b) of any deficiency in assessment
or proposed judgment to its federal, state or other taxes. Ebix has no
knowledge of any liability for any tax to be imposed upon its properties or
assets as of the date of each Closing that is not adequately provided for.
4.18 EMPLOYEE MATTERS. Except as set forth in the Disclosure Schedule, neither
ebix nor any ebix Subsidiary has employment contracts with any of its
employees not terminable at will. ebix does not have any collective
bargaining agreements with any of its employees and no labor union
organizing activity is pending or threatened with respect to ebix. Ebix
does not have any Employee Benefit Plan as defined in the United States
Employee Retirement Income Security Act of 1974.
4.19 INSURANCE. ebix has in full force and effect fire and casualty insurance
policies, with extended coverage, sufficient in amount (subject to
reasonable deductibles) to allow it to replace any of its or its
Subsidiaries properties material to its business that might be damaged or
destroyed.
4.20 LEGENDS. ebix agrees that the certificates for the IBS Shares shall bear
the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY STATE
SECURITIES COMMISSION, AND MAY NOT BE TRANSFERRED OR
DISPOSED OF BY THE HOLDER IN THE ABSENCE OF REGISTRATION
WHICH IS EFFECTIVE UNDER THE
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SECURITIES ACT AND APPLICABLE STATE LAWS AND RULES, OR,
UNLESS, IMMEDIATELY PRIOR TO THE TIME SET FOR TRANSFER,
SUCH TRANSFER MAY BE EFFECTED WITHOUT VIOLATION OF THE
SECURITIES ACT AND OTHER APPLICABLE STATE LAWS AND RULES.
4.22 PURCHASE FOR OWN ACCOUNT. The IBS Shares to be acquired by ebix are being
acquired for investment for ebix's own account, not as a nominee or agent,
and not with a view to the public resale or distribution thereof within the
meaning of the Securities Act, and ebix has no present intention of
selling, granting any participation in, or otherwise distributing the same.
4.23 RESTRICTED SECURITIES. ebix hereby acknowledges and agrees with BRiT that
the IBS Shares have not been registered under the Securities Act and may
not be offered or sold except pursuant to a registration statement or
pursuant to an exemption from the registration requirements of the
Securities Act. Ebix further agrees that it has not entered and will not
enter into any contractual arrangement with respect to the distribution or
delivery of the Shares, other than pursuant to Rule 144 under the
Securities Act or in another transaction that does not require registration
under the Securities Act. Ebix is familiar with Rule 144 under the
Securities Act, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act.
5. REPRESENTATIONS AND WARRANTIES OF BRIT
BRiT hereby represents and warrants to ebix that:
5.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. BRiT is a corporation duly
organized and validly existing under the laws of England and Wales and is
not in liquidation or receivership. The memorandum and articles of
association of BRiT comply with the requirements of applicable English law
and are in full force and effect. To the best knowledge of BRiT, IBS is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. BRiT has all requisite corporate power and
authority to execute and deliver this Agreement and the other Transaction
Documents to transfer the IBS Shares subject to the terms and conditions of
this Agreement and to carry out the provisions of this Agreement and the
other Transaction Documents.
5.2 AUTHORIZATION; BINDING OBLIGATIONS. All actions on the part of BRiT and
its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement and the other Transaction
Agreements, the performance of all obligations of BRiT hereunder and
thereunder has been taken or will be taken prior to each Closing. This
Agreement and the other Transaction Documents have been duly executed and
delivered by BRiT, and (assuming the due authorization, execution and
delivery hereof by ebix) this Agreement is a valid and binding obligation
of BRiT enforceable in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
of general application affecting enforcement of creditors' rights and
(b) general principles of equity that restrict the availability of
equitable remedies.
5.3 CAPITALIZATION. To the best knowledge of BRiT, the shares constituting the
issued share capital of IBS have been duly authorized and validly issued,
are credited as fully paid and non-assessable and are not subject to
preemptive or similar rights. For purposes of determining the calculation
of IBS Shares pursuant to Section 2.3 only, BRiT hereby represents and
warrants that the total number of issued and outstanding shares of common
stock, par value $0.01 per share, of IBS as of the date hereof, is
13,976,939.
5.4 GOOD TITLE. BRiT has good and valuable title to the IBS Shares, free from
all restrictions, limits, claims, liens, charges, encumbrances, pledges and
other third party rights.
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5.5 CONSENTS AND APPROVALS; NO VIOLATIONS. None of the execution, delivery or
performance of this Agreement and the other Transaction Agreements by BRiT,
the consummation by BRiT of the transactions contemplated hereby and
thereby or compliance by BRiT with any of the provisions hereof or thereof
will (a) conflict with or result in any breach of any provision of the
certificate of incorporation or memorandum and articles of association of
BRiT, (b) require any filing with, or permit, authorization, consent or
approval of, any governmental entity, (c) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which BRiT or any of its material
subsidiaries is a party or by which any of them or any of their respective
properties or assets may be bound or (d) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to BRiT, any of
its material subsidiaries or any of their properties or assets, excluding
from the foregoing clauses (b), (c) and (d) such violations, breaches or
defaults which would not, individually or in the aggregate, have a material
adverse effect on BRiT's ability to consummate such transactions.
5.6 BROKERS OR FINDERS. BRiT has not engaged any brokers, finders or agents,
and ebix has not, and will not, incur, directly or indirectly, as a result
of any action taken by BRiT, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with this
Agreement or the other Transaction Agreements. In the event that the
preceding sentence is in any way inaccurate, BRiT agrees to indemnify and
hold harmless ebix from any liability for any commission or compensation in
the nature of a finder's fee (and the costs and expenses of defending
against such liability) for which ebix or any of its officers, directors,
employees or representatives, is responsible.
5.7 RESTRICTED SECURITIES. BRiT hereby acknowledges and agrees with ebix that
the Shares have not been registered under the Securities Act and may not be
offered or sold except pursuant to a registration statement or pursuant to
an exemption from the registration requirements of the Securities Act. BRiT
further agrees that it has not entered and will not enter into any
contractual arrangement with respect to the distribution or delivery of the
Shares, other than (a) pursuant to the Registration Rights Agreement,
(b) pursuant to Rule 144 under the Securities Act or (c) pursuant to any
other transaction that does not require registration under the Securities
Act. BRiT is familiar with Rule 144 under the Securities Act, as presently
in effect, and understands the resale limitations imposed thereby and by
the Securities Act.
5.8 LEGENDS. BRiT agrees that the certificates for the Shares shall bear the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR WITH ANY STATE
SECURITIES COMMISSION, AND MAY NOT BE TRANSFERRED OR
DISPOSED OF BY THE HOLDER IN THE ABSENCE OF REGISTRATION
WHICH IS EFFECTIVE UNDER THE SECURITIES ACT AND APPLICABLE
STATE LAWS AND RULES, OR, UNLESS, IMMEDIATELY PRIOR TO THE
TIME SET FOR TRANSFER, SUCH TRANSFER MAY BE EFFECTED
WITHOUT VIOLATION OF THE SECURITIES ACT AND OTHER
APPLICABLE STATE LAWS AND RULES.
6. COVENANTS
Each of the Parties covenants and agrees as follows.
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6.1 APPOINTMENT OF DIRECTORS. BRiT shall, (i) for so long as it maintains
beneficial ownership of 10% or more of ebix's issued and outstanding
Shares, have the right to designate one person for appointment or election
as a member of the Board of Directors of ebix, and (ii) for so long as it
maintains beneficial ownership of 20% or more of ebix's issued and
outstanding Shares, have the right (but not the obligation) to designate
two persons for appointment or election as members of the Board of
Directors of ebix, each such designee to be reasonably acceptable to ebix.
If such right is exercised, ebix shall use its reasonable best efforts to
have such designee(s) promptly appointed or elected as member(s) of the
ebix Board of Directors unless such appointment or election would result in
BRiT designees holding more than the number of directorships to which
BRiT's beneficial ownership of Shares entitles it hereunder.
Notwithstanding the foregoing, BRiT shall not exercise its right under this
Section 6.1 prior to consummation of the Second Closing.
6.2 CONFIDENTIAL INFORMATION. Each Party agrees that (a) all information
received by it pursuant to this Agreement and (b) any other information
that is disclosed by the other Party to it and is identified by the other
Party as being confidential or proprietary, shall be considered
confidential information. Each Party further agrees that it shall hold all
such confidential information in confidence and shall not disclose any such
confidential information except to its officers, directors, employees and
advisers who are advised that by accepting such confidential information
they are agreeing to be bound by the provisions of this Section 6.2 except
as required by law, regulation (including the Nasdaq Marketplace Rules) or
applicable process, PROVIDED THAT to the extent possible the other Party
shall have been provided with reasonable notice and the opportunity to seek
a protective order to the extent possible prior to such disclosure, other
than to its counsel or accountants nor shall it use such confidential
information for any purpose other than its investment in the other Party;
PROVIDED, HOWEVER, that a party shall not be so obligated to hold in
confidence and not to disclose confidential information that (a) was known
to the public prior to its disclosure to such Party, (b) becomes known to
the public through no fault of such Party, (c) is disclosed to such Party
on a non-confidential basis by a third party having a legal right to make
such disclosure.
6.3 NO SOLICITATION. Each Party agrees that for a period of 18 months after
the date of this Agreement, it will not, directly or indirectly, solicit
for employment or hire any officer, director or employee of the other Party
or any of its subsidiaries or divisions with whom such Party has had
contact or who became known to it in connection with its consideration of
the transaction contemplated hereby, except that such Party shall not be
precluded from hiring any such employee who (a) initiates discussions
regarding such employment without any direct or indirect solicitation by
such Party or (b) has been terminated by the other Party or its
subsidiaries prior to commencement of employment discussions with such
Party. The term "solicit for employment" shall not be deemed to include
general solicitations of employment not specifically directed towards
employees of a Party.
6.4 REGULATORY AND OTHER APPROVALS. Each Party will take all commercially
reasonable steps necessary or desirable, and proceed diligently and in good
faith and use all commercially reasonable efforts, as promptly as
practicable, (a) to obtain all consents, approvals or actions of, to make
all filings with and to give all notices to the relevant governmental or
regulatory authorities or any other person (including but not limited to
parties to material loan agreements, leases and other contracts) that are
required to consummate the transactions contemplated hereby and in the
other Transaction Agreements, (b) provide such other information and
communications to such governmental or regulatory authority or other person
as such governmental or regulatory authority or other person may request
and (c) provide reasonable cooperation to the other Party in obtaining all
consents, approvals or actions of, making all requisite filings and giving
notices to, governmental or regulatory authorities or other persons. Each
Party shall provide prompt
B-1-15
notification to the other when any such consent, approval, action, filing
or notice is obtained, taken, made or given, as applicable, and will advise
the other Party promptly of any communication from any such governmental or
regulatory authorities or other persons.
6.5 MEETING OF EBIX STOCKHOLDERS. ebix shall take all action necessary in
accordance with applicable law, the Marketplace Rules of the Nasdaq Stock
Market and its organizational documents to convene its annual meeting of
stockholders to consider and vote upon the approval of, among other items,
the transactions contemplated by this Agreement to the extent required by
applicable law or the Marketplace Rules of the Nasdaq Stock Market (the
"APPROVAL TRANSACTIONS"). The Parties agree that the amendment to ebix's
Certificate of Incorporation to be included in the Approval Transactions
shall be in form and substance satisfactory to BRiT. The Board of Directors
of ebix shall recommend that its stockholders vote in favor of such
approval unless the Board of Directors concludes, upon receipt of an
opinion of counsel, that such recommendation is inconsistent with its
fiduciary duty, and ebix shall take all lawful action to solicit such
approval, including, without limitation, timely mailing of a proxy
statement and forms of proxy in connection with the vote of ebix's
stockholders with respect to the Approval Transactions (the "PROXY
STATEMENT"). The meeting of the stockholders of ebix shall be held as soon
as reasonably practicable. In connection therewith, ebix shall promptly
prepare and file with the SEC as soon as practicable the Proxy Statement
and necessary forms of proxy. BRiT shall have the right to review and
approve the Proxy Statement prior to ebix filing the Proxy Statement with
the SEC (which approval shall not be unreasonably withheld or delayed).
ebix shall cause the Proxy Statement to comply in all material respects
with the applicable provisions of the Exchange Act. ebix shall use its best
efforts to cause the Proxy Statement to be mailed to its stockholders as
soon as practicable after the Proxy Statement shall have been approved for
release to such stockholders by the SEC.
6.6 LISTING APPLICATION. ebix shall promptly prepare and submit to the Nasdaq
Stock Market a listing notification form covering the Shares.
6.7 PUBLICITY. Subject to the respective legal obligations of BRiT and ebix
(including requirements of stock exchanges and other similar regulatory
bodies), the initial press release relating to this Agreement and all press
releases or public statements thereafter with respect to the transactions
contemplated hereby shall be joint press releases or statements, and BRiT
and ebix shall consult with each other in making any filings relating to
this Agreement with any governmental or regulatory authorities or with any
securities exchange.
6.8 CONDUCT OF BUSINESS; ISSUANCE OF CAPITAL.
(a) Until the Second Closing Date (i) ebix shall conduct its business only
in the ordinary course (except to the extent pertaining to matters
specifically disclosed in the Disclosure Schedule) and (ii) shall not
issue any shares of its capital stock or securities convertible into its
capital stock (except pursuant to the exercise of options, warrants and
other convertible securities in existence on the date hereof and except
for grants of options and exercise of options granted to employees of
ebix after the date hereof of which ebix has provided BRiT notice)
without the express written consent of BRiT. Without limiting the
generality of the foregoing, until the Second Closing Date, ebix shall
use commercially reasonable best efforts to (x) keep available the
services of its key officers and employees in all material respects,
(y) maintain its assets and properties in good working order and
condition, ordinary wear and tear excluded, and (z) maintain the good
will of its key customers and suppliers.
(b) ebix agrees that it shall not, without the prior written consent of
BRiT, issue any shares of Common Stock or securities convertible into
shares of Common Stock if, after such issuance, the number of authorized
and issued shares of Common Stock (assuming exercise or conversion of all
securities convertible into Common Stock) exceeds 30,000,000.
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Notwithstanding the foregoing, such consent right of BRiT shall terminate
if BRiT holds less than 15% of the issued and outstanding shares of
Common Stock, after, as the case may be:
(i) the Second Closing Date; or
(ii) termination of the rights and obligations of the Parties to effect
the Second Closing in accordance with Section 10.2 hereof.
6.9 FULFILLMENT OF CONDITIONS. Each Party shall take all commercially
reasonable steps necessary or desirable to proceed diligently and in good
faith to satisfy each condition to its obligations under this Agreement and
the other Transaction Agreements and will not and will not permit any
subsidiary to, take any action or fail to take any commercially reasonable
action which action or failing could reasonably be expected to result in
the non-fulfillment of any such condition.
6.10 EXCHANGE ACT FILINGS. Until June 1, 2002 ebix shall use its reasonable
best efforts to file with the SEC in a timely manner all reports and other
documents required to be filed by ebix under the Exchange Act, the
Securities Act and all applicable rules or regulations promulgated by the
SEC thereunder and to use its reasonable best efforts to cooperate with
every request by the SEC in connection therewith. ebix agrees to use its
best efforts to ensure that it is able to file the Resale Registration
Statement with the SEC on July 2, 2001, as provided for in the Registration
Rights Agreement.
6.11 FRAMEWORK AGREEMENT. As soon as practicable after the date of this
Agreement, each of the Parties will use its commercially reasonable best
efforts to negotiate and enter into a framework or similar agreement (the
"Framework Agreement") pursuant to which ebix will review BRiT's e-commerce
strategy and provide services related thereto.
6.12 STANDSTILL. BRiT agrees that, without the prior consent of the Board of
Directors of ebix, BRiT and its Affiliates (collectively, "BRiT Group")
will not, by purchase or otherwise, acquire "beneficial ownership" (as that
term is defined and used in Regulation 13D under the Exchange Act) of any
Common Stock of ebix if, upon giving effect to such acquisition, Brit Group
would own 49% or more of the outstanding Common Stock.
7. FIRST CLOSING CONDITIONS
7.1 BRiT's obligations to consummate at the First Closing are, unless waived
by BRiT, subject to the fulfillment of the following conditions:
(a) the ebix Warranties shall have been true and correct in all material
respects at and as of the date hereof and shall be true in all material
respects at and as of the time of the First Closing (except to the extent
such warranties refer specifically to an earlier date) with the same
force and effect as though made at and as of that time;
(b) the performance of, or compliance with, all agreements, obligations and
conditions contained in this Agreement that are required to be performed
or complied with by ebix at or prior to the First Closing Date and all
the approvals and consents necessary to complete the transactions
described herein (including any consents of governmental or regulatory
authorities) that are required to have been obtained by ebix at or prior
to the First Closing Date having been obtained by ebix;
(c) ebix shall have filed a "Notification Form: Listing of Additional
Shares" with the Listing Qualifications department at the Nasdaq Stock
Market, Inc.;
(d) the delivery by ebix to BRiT of the items referred to in Section 3.2;
(e) all consents, approvals and actions of, filings with and notices to any
governmental or regulatory authority necessary to permit the Parties to
perform their respective obligations
B-1-17
under this Agreement and the other Transaction Agreements with respect to
the transaction to be consummated at the First Closing Date shall have
been duly obtained, made or given and shall be in full force and effect,
and all terminations or expirations of waiting periods imposed by any
governmental or regulatory authority necessary for consummation of the
transactions contemplated by this Agreement and the other Transaction
Agreements at or prior to the First Closing Date shall have occurred;
(f) BRiT shall have received an undertaking from Xxxxx Xxxxx in the form of
Exhibit H;
(g) ebix shall have timely filed its Annual Report on Form 10-K for the year
ended December 31, 2000 with the SEC in accordance with the rules under
the Exchange Act; and
(h) ebix shall have either (i) terminated the Stockholder Rights Agreement,
dated March 23, 1998, between ebix and Xxxxx Xxxxxx Shareholder Services,
LLC (the "Rights Plan") or (ii) amended the Rights Plan such that BRiT
shall not at any time be deemed to be an "Acquiring Person" thereunder.
7.2 ebix's obligations to consummate at the First Closing are, unless waived
by ebix, subject to the fulfillment of the following conditions:
(a) the BRiT Warranties shall have been true and correct in all material
respects at and as of the date hereof and shall be true in all material
respects at and as of the time of the First Closing (except to the extent
such warranties refer specifically to an earlier date) with the same
force and effect as though made at and as of that time;
(b) the performance of, or compliance with, all agreements, obligations and
conditions contained in this Agreement that are required to be performed
or complied with by BRiT at or prior to the First Closing Date and all
the approvals and consents necessary to complete the transactions
described herein (including any consents of governmental or regulatory
authorities) have been obtained at or prior to the First Closing Date
having been obtained by BRiT;
(c) the delivery by BRiT to ebix of those items referred to in Section 3.2;
and
(d) all consents, approvals and actions of, filings with and notices to any
governmental or regulatory authority necessary to permit the Parties to
perform their respective obligations under this Agreement and the other
Transaction Agreements with respect to the transaction to be consummated
at the First Closing Date shall have been duly obtained, made or given
and shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any governmental or regulatory
authority necessary for consummation of the transactions contemplated by
this Agreement and the other Transaction Agreements at or prior to the
First Closing Date shall have occurred.
8. SECOND CLOSING CONDITIONS
8.1 BRiT's obligations to consummate the Second Closing are, unless waived by
BRiT, subject to the fulfillment of the following conditions:
(a) the ebix Warranties shall have been true and correct in all material
respects at and as of the date hereof and shall be true in all material
respects at and as of the time of the Second Closing (except to the
extent such warranties refer specifically to an earlier date) with the
same force and effect as though made at and as of that time;
(b) the performance of, or compliance with, all agreements, obligations and
conditions contained in this Agreement, and the Framework Agreement, if
entered into between the Parties prior to the Second Closing Date, that
are required to be performed or complied with by ebix at or
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prior to the Second Closing Date and all the approvals and consents
necessary to complete the transactions described herein (including any
consents of governmental or regulatory authorities and the affirmative
vote by ebix stockholders in favor of the Approval Transactions) that are
required have been obtained at or prior to the Second Closing Date having
been obtained by ebix;
(c) the delivery by ebix to BRiT of those items referred to in Section 3.3;
(d) all consents, approvals and actions of, filings with and notices to any
governmental or regulatory authority necessary to permit the Parties to
perform their respective obligations under this Agreement and the other
Transaction Agreements with respect to the transaction to be consummated
at the Second Closing Date shall have been duly obtained, made or given
and shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any governmental or regulatory
authority necessary for consummation of the transactions contemplated by
this Agreement and the other Transaction Agreements at or prior to the
Second Closing Date shall have occurred;
(e) ebix shall have executed and delivered to BRiT the Framework Agreement;
(f) the Common Stock shall have remained listed on the Nasdaq Smallcap
Market; and
(g) ebix shall have delivered to BRiT evidence reasonably satisfactory to
BRiT as to Approval Transactions in accordance with Rule 4350 of the
Nasdaq Marketplace Rules, the Exchange Act and Delaware law.
8.2 ebix's obligations to consummate the Second Closing are, unless waived by
ebix, subject to the fulfillment of the following conditions:
(a) the ebix Warranties shall have been true and correct in all material
respects at and as of the date hereof and shall be true in all material
respects at and as of the time of the Second Closing (except to the
extent such warranties refer specifically to an earlier date) with the
same force and effect as though made at and as of that time;
(b) the performance of, or compliance with, all agreements, obligations and
conditions contained in this Agreement and the other Transaction
Agreements that are required to be performed or complied with by BRiT at
or prior to the Second Closing Date and all the approvals and consents
necessary to complete the transactions described herein (including any
consents of governmental or regulatory authorities) that are required to
have been obtained at or prior to the Second Closing Date) having been
obtained by BRiT;
(c) all consents, approvals and actions of, filings with and notices to any
governmental or regulatory authority necessary to permit the Parties to
perform their respective obligations under this Agreement and the other
Transaction Agreements with respect to the transaction to be consummated
at the Second Closing Date shall have been duly obtained, made or given
and shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any governmental or regulatory
authority necessary for consummation of the transactions contemplated by
this Agreement and the other Transaction Agreements at or prior to the
Second Closing Date shall have occurred;
(d) the delivery by BRiT to ebix of those items referred to in Section 3.3;
and
(e) the stockholders of ebix shall have approved the Approval Transactions.
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9. INDEMNIFICATION
9.1 INDEMNIFICATION.
(a) Subject to paragraph (c) of this Section and the other Sections of this
Article 9, ebix shall indemnify BRiT in respect of, and hold it harmless
from and against, any and all Losses suffered, incurred or sustained by
it or to which it becomes subject, resulting from any misrepresentation,
breach of warranty or breach of any covenant or agreement on the part of
ebix contained in this Agreement.
(b) Subject to paragraph (c) of this Section and the other Sections of this
Article 9, BRiT agrees to indemnify ebix in respect of, and hold it
harmless from and against, any and all Losses suffered, incurred or
sustained by it or to which it becomes subject, resulting from any
misrepresentation, breach of warranty or breach of any covenant or
agreement on the part of BRiT contained in this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement, no
amounts of indemnity shall be payable as a result of any claim arising
under paragraphs (a) or (b) of Section 9.01:
(i) unless, until and then only to the extent that the Indemnified Party
thereunder has suffered, incurred, sustained or become subject to
Losses referred to in such paragraph in excess of $100,000 in the
aggregate, but then only to the extent of any such excess up to a
maximum aggregate indemnification pursuant to each of Section 9.01
(a) or Section 9.01 (b) of $2,800,000 prior to consummation of the
Second Closing, and, after consummation of the Second Closing, an
additional $4,200,000, for an aggregate of $7,000,000 thereafter;
(ii) with respect of any claim for indemnification thereunder, unless
the Indemnified Party has given the Indemnifying Party a Claim
Notice or Indemnity Notice, as applicable, with respect of such
claim, setting forth in reasonable detail the specific facts and
circumstances pertaining thereto, (y) as soon as practical
following the time at which the Indemnified Party discovered or
reasonably should have discovered such claim (except to the extent
the Indemnifying Party is not prejudiced by any delay in the
delivery of such notice) and (z) in any event prior to the
applicable Cut-off Date; or
(iii) with respect to any Loss as to which the Indemnified Party had a
reasonable opportunity, but failed, in good faith to mitigate such
Loss, including but not limited to its failure to use commercially
reasonable efforts to recover under a policy of insurance or under
a contractual right of set-off or indemnity.
9.2 METHOD OF ASSERTING CLAIMS. All claims for indemnification by any
Indemnified Party under Section 9.01 will be asserted and resolved as
follows.
(a) In the event that any claim or demand in respect of which an
Indemnifying Party might seek indemnity under Section 9.01 is asserted
against or sought to be collected from such Indemnified Party by a person
other than ebix, BRiT or any Affiliate of ebix or BRiT (a "THIRD PARTY
CLAIM"), the Indemnified Party shall deliver a Claim Notice with
reasonable promptness to the Indemnifying Party. The Indemnifying Party
will notify the Indemnified Party as soon as practicable within the
Dispute Period whether the Indemnifying Party disputes its liability to
the Indemnified Party under Section 9.01 and whether the Indemnifying
Party desires, at its sole cost and expense, to defend the Indemnified
Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within the
Dispute Period that the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third Party Claim pursuant to
this Section 9.02(a), then the Indemnifying Party will have the
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right to defend, at the sole cost and expense of the Indemnifying
Party, such Third Party Claim by all appropriate proceedings, which
proceedings will be vigorously and diligently prosecuted by the
Indemnifying Party to a final conclusion or will be settled at the
discretion of the Indemnifying Party (with the consent of the
Indemnified Party, which consent will be unreasonably withheld). The
Indemnifying Party will have full control of such defense and
proceedings, including (except as provided in the immediately
preceding sentence) any settlement thereof; PROVIDED, HOWEVER, that
the Indemnified Party may, at the sole cost and expense of the
Indemnified Party, at any time prior to the Indemnifying Party's
delivery of the notice referred to in the first sentence of this
clause (i), file any motion, answer or other pleadings or take any
other action that the Indemnified Party reasonably believes to be
necessary or appropriate to protect its interests and not
prejudicial to the Indemnifying Party (it being understood and
agreed that, except as provided in clause (ii) below, if an
Indemnified Party takes any such action that is prejudicial and
causes a final adjudication that is adverse to the Indemnifying
Party, the Indemnifying Party will be relieved of its obligations
hereunder with respect to the portion of such Third Party Claim
prejudiced by the Indemnified Party's action); and PROVIDED FURTHER
THAT, if requested by the Indemnifying Party, the Indemnified Party
will, at the sole cost and expense of the Indemnifying Party,
cooperate with the Indemnifying Party and its counsel in contesting
any Third Party Claim that the Indemnifying Party elects to contest,
or, if appropriate and related to the Third Party Claim in question,
in making any counterclaim against the Person asserting the Third
Party Claim, or any cross-complaint against any Person (other than
the Indemnified Party or any of its Affiliates). The Indemnified
Party may participate in, but not control, any defense or settlement
of any Third Party Claim controlled by the Indemnifying Party
pursuant to this clause (i), and except as provided in the preceding
sentence, the Indemnified Party will bear its own costs and expenses
with respect to such participation. Notwithstanding the foregoing,
the Indemnified Party may take over the control of the defense or
settlement of a Third Party Claim at any time if it irrevocably
waives its right to indemnity under this Article IX with respect to
such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party
within the Dispute Period that the Indemnifying Party desires to
defend the Third Party Claim pursuant to Section 9.02(a), or if the
Indemnifying Party gives such notice but fails to prosecute
vigorously and diligently or settle the Third Party Claim, or if
the Indemnifying Party fails to give any notice whatsoever within
the Dispute Period, then the Indemnified Party will have the right
to defend, at the sole cost and expense of the Indemnifying Party,
the Third Party Claim by all appropriate proceedings, which
proceedings will be vigorously and diligently prosecuted by the
Indemnified Party to a final conclusion or will be settled at the
discretion of the Indemnified Party (with the consent of the
Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such
defense and proceedings, including (except as provided in the
immediately preceding sentence) any settlement thereof; provided,
however, that if requested by the Indemnified Party, the
Indemnifying Party will, at the sole cost and expense of the
Indemnifying Party, cooperate with the Indemnified Party and its
counsel in contesting any Third Party Claim which the Indemnified
Party is contesting, or, if appropriate and related to the Third
Party Claim in question, in making any counterclaim against the
person asserting the Third Party Claim, or any cross-complaint
against any person (other than the Indemnifying Party or any of its
Affiliates). Notwithstanding the foregoing provisions of this
clause (ii), if the Indemnifying Party has notified the Indemnified
Party within the Dispute Period that the Indemnified Party disputes
its liability hereunder to the Indemnified Party with respect to
such Third Party Claim and if such dispute is
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resolved in favor of the Indemnifying Party in the manner provided
in clause (iii) below, the Indemnifying Party will not be required
to bear the costs and expenses of the Indemnified Party's defense
pursuant to this clause (ii) or of the Indemnifying Party's
participation therein at the Indemnified Party's request, and the
Indemnified Party will reimburse the Indemnifying Party in full for
all reasonable costs and expenses incurred by the Indemnifying
Party in connection with such litigation. The Indemnifying Party
may participate in, but not control, any defense or settlement
controlled by the Indemnified Party pursuant to this clause (ii),
and the Indemnifying Party will bear its own costs and expenses
with respect to such participation.
(iii) If the Indemnifying Party notifies the Indemnified Party that it
does not dispute its liability to the Indemnified Party with
respect to the Third Party Claim under Section 9.01 or fails to
notify the Indemnified Party within the Dispute Period whether the
Indemnifying Party disputes its liability to the Indemnified Party
with respect to such Third Party Claim, the Loss in the amount
specified in the Claim Notice will be conclusively deemed a
liability of the Indemnifying Party under Section 9.01 and the
Indemnifying Party shall pay the amount of such Loss to the
Indemnified Party on demand. If the Indemnifying Party has timely
disputed its liability with respect to such claim, the Indemnifying
Party and the Indemnified Party will proceed in good faith to
negotiate a resolution of such dispute, and if not resolved through
negotiations within the Dispute Period, such dispute shall be
resolved by litigation in a court of competent jurisdiction.
(b) In the event any Indemnified Party should have a claim under
Section 9.01 against the Indemnifying Party that does not involve a Third
Party Claim, the Indemnified Party shall deliver an Indemnity Notice with
reasonable promptness to the Indemnifying Party.
(c) In the event of any claim for indemnity under Section 9.01(a) or (b),
each of the Parties agrees to give the other Party reasonable access to
its books, records and employees in connection with the matters for which
indemnification is sought to the extent such Party reasonably deems
necessary in connection with its rights and obligations under this
Article 9.
9.3 EXCLUSIVITY. To the extent permitted by law, the indemnities set forth in
this Article 9 shall be the exclusive remedies of BRiT and ebix for any
misrepresentation, breach of warranty or breach of any covenant or
agreement contained in this Agreement, and the parties shall not be
entitled to a rescission of this Agreement or to any further
indemnification rights or claims of any nature whatsoever in respect
thereof, all of which the parties hereto hereby waive.
10 TERMINATION
10.1 TERMINATION. This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned: (a) at any time before the First
Closing, by mutual written consent of the Parties; (b) at any time before
the First Closing by either Party in the event that any order or law
becomes effective restraining, enforcing or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by this
Agreement or the other Transaction Agreements; (c) by ebix by giving
written notice to BRiT at any time prior to the First Closing (i) in the
event BRiT has breached any material representation, warranty or covenant
contained in the Agreement in any material respect, ebix has notified BRiT
of the breach, and the breach has continued without cure for a period of
five business days after the notice of breach, or (ii) if the First Closing
shall not have occurred on or before April 20, 2001 by reason of the
failure of any condition precedent under 7.2 hereof (unless the failure
results primarily from ebix itself breaching any representation, warranty
or covenant contained in this Agreement); or (d) by BRiT by giving written
notice to ebix at any time prior to the First
B-1-22
Closing (i) in the event ebix has breached any material representation,
warranty or covenant contained in the Agreement in any material respect,
BRiT has notified ebix of the breach, and the breach has continued without
cure for a period of five business days after the notice of breach, or
(ii) if the First Closing shall not have occurred on or before April 20,
2001 by reason of the failure of any condition precedent under 7.1 hereof
(unless the failure results primarily from BRiT itself breaching any
representation, warranty or covenant contained in this Agreement).
10.2 TERMINATION AFTER FIRST CLOSING. The rights and obligations pertaining to
transactions contemplated by the Second Closing may be terminated and the
transactions contemplated thereby may be abandoned: (a) at any time before
the Second Closing, by mutual written consent of the Parties; (b) at any
time before the Second Closing by either Party in the event that any order
or law becomes effective prohibiting or making illegal the consummation of
any of the transactions contemplated to be consummated at the Second
Closing; (c) by ebix by giving written notice to BRiT at any time prior to
the Second Closing (i) in the event BRiT has breached any material
representation, warranty or covenant contained in the Agreement in any
material respect, ebix has notified BRiT of the breach, and the breach has
continued without cure for a period of five business days after the notice
of breach, or (ii) if the Second Closing shall not have occurred on or
before June 29, 2001 by reason of the failure of any condition precedent
under 8.2 hereof (unless the failure results primarily from ebix itself
breaching any representation, warranty or covenant contained in this
Agreement); or (d) by BRiT by giving written notice to ebix at any time
prior to the Second Closing (i) in the event ebix has breached any material
representation, warranty or covenant contained in the Agreement in any
material respect, BRiT has notified ebix of the breach, and the breach has
continued without cure for a period of five business days after the notice
of breach, or (ii) if the Second Closing shall not have occurred on or
before June 29, 2001 by reason of the failure of any condition precedent
under 8.1 hereof (unless the failure results primarily from BRiT itself
breaching any representation, warranty or covenant contained in this
Agreement).
10.3 EFFECT OF TERMINATION. If this Agreement is validly terminated pursuant to
Section 10.1, this Agreement will forthwith become null and void and there
will be no liability or obligation on the part of either Party, except as
further provided in this Section 10.3 and except that the provisions
relating to expenses in Section 11.1 and confidentiality in Section 6.2
will continue to apply. Notwithstanding any other provisions of this
Agreement to the contrary, (i) upon termination of this Agreement pursuant
to Section 10.1(b) ebix will remain liable to BRiT for any breach of
Section 6.9 of this Agreement by ebix existing at the time of such
termination and BRiT will remain liable to ebix for any breach of
Section 6.9 of this Agreement by BRiT existing at the time of such
termination and (ii) upon termination of this Agreement pursuant to
Section 10.1(c) or (d), the Parties will remain liable for any breach of
this Agreement giving rise to such termination. If the rights and
obligations pertaining to transactions contemplated by the Second Closing
are validly terminated pursuant to Section 10.2, such rights and
obligations will forthwith become null and void and there will be no
liability or obligation related thereto on the part of either Party except
that, in the event of such termination pursuant to Sections 10.2 (c) or
(d), the Parties will remain liable for any breach of this Agreement giving
rise to such termination.
11. MISCELLANEOUS
11.1 Except as otherwise expressly provided in this Agreement, each Party shall
pay its own costs and expenses incurred in connection with the preparation,
negotiation and settlement of this Agreement, whether or not the
transactions contemplated hereby are consummated. Notwithstanding the
foregoing, if ebix terminates the Agreement pursuant to Section 10.1(c) or
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if BRiT terminates the Agreement pursuant to Section 10.01(d), the
non-terminating Party shall pay to the terminating Party all out-of-pocket
costs and expenses incurred in by the terminating Party in connection with
the negotiation, execution and delivery of this Agreement and the other
Transaction Agreements and in furtherance of the transactions contemplated
hereby and thereby.
11.2 All fees and duties (if any) relating to the issue of the Shares shall be
borne by ebix. Capital duty and all other fees and duties (if any) relating
to the transfer of the IBS Shares shall be borne by BRiT.
11.3 Any notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant Party
at its address or facsimile number set out below (or such other address or
facsimile number as the addressee has by five days' prior written notice
specified to the other Party):
To BRiT: BRiT Insurance Holdings plc
00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 (00) 0000 0000
Attention: Xxxxx Xxxxxxx
Copies to: Xxxxxx & Whitney
00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 (00) 0000 0000
Attention: Xxxxxx Xxxxxxx, Esq.
To ebix: xxxx.xxx, Inc.
Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax: x0 (000) 000-0000
Attention: Xxxxx Xxxxx
Copies to: Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
Suite 8000 Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Fax: x0 (000) 000 0000
Attention: Xxxxxx Xxxxxx, Esq.
Any notice, demand or other communication so addressed to the relevant Party
shall be deemed to have been delivered: (a) if given or made by letter, when
actually delivered to the relevant address; and (b) if given or made by
facsimile, on the first business day following transmission if telephonic
advice of such transmission is given on such first business day and a
machine-printed confirmation of receipt is received by the sender.
11.4 Each Party undertakes to the other Party to execute or procure to be
executed all such documents and to do or procure to be done all such other
acts and things as may be reasonable and necessary to give both Parties the
full benefit of this Agreement.
11.5 This Agreement shall be binding on and inure solely to the benefit of ebix
and BRiT and their respective successors and assigns. Neither Party shall
assign any of its rights hereunder without the prior consent of the other
Party, which consent shall not be unreasonably withheld.
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11.6 The exercise of or failure to exercise any right or remedy of any breach
of this Agreement shall not, except as provided herein, constitute a waiver
by such Party of any other right or remedy it may have in respect of that
breach.
11.7 Except as provided in Section 9.03, any right or remedy conferred by this
Agreement on any Party for breach of this Agreement by the other Party
(including without limitation the breach of any representations and
warranties) shall be in addition and without prejudice to all other rights
and remedies available to it in respect of that breach.
11.8 This Agreement constitutes the entire agreement between the Parties with
respect to its subject matter (neither Party having relied on any
representation or warranty made by the other Party which is not contained
in this Agreement) and no variation of this Agreement shall be effective
unless made in writing and signed by all of the Parties.
11.9 This Agreement supersedes all and any previous agreements, arrangements or
understanding between the Parties relating to the matters referred to in
this Agreement and all such previous agreements, arrangements or
understanding (if any) shall cease to have any effect from the date hereof.
11.10 If at any time any provision of this Agreement is or becomes illegal, void
or unenforceable in any respect, the remaining provisions hereof shall in
no way be affected or impaired thereby.
11.11 The representations and warranties of the Parties contained in the
Agreement will survive the respective Closings until June 1, 2002, except
with respect to the representations and warranties contained in Sections
4.2, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 5.5 and 5.6, which shall survive
indefinitely.
11.12 This Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original, but all of which together will
constitute one and the same document.
12. GOVERNING LAW
12.1 This Agreement shall be governed by and construed in accordance with the
laws of the state of New York, without reference to its conflict of laws
provisions.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
duly authorized officer of each party hereto as of the date first above written.
BRIT INSURANCE HOLDINGS PLC
By:
----------------------------
Name: X. Xxxxxx
Title: Director
By:
----------------------------
Name: X. Xxxxxxx
Title: Director
XXXX.XXX, INC.
By:
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President--Finance & Administration,
Chief Financial Officer and Secretary
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