EXHIBIT 10.10
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FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
Dated May 23, 2001
by and among
ACCEPTANCE INSURANCE COMPANIES INC.
ACCEPTANCE INSURANCE COMPANY
AMERICAN GROWERS INSURANCE COMPANY
AMERICAN AGRISURANCE, INC.
and
GORAN CAPITAL INC.
XXXXXX INTERNATIONAL GROUP, INC.
IGF HOLDINGS, INC.
IGF INSURANCE COMPANY
Dated June 5, 2001
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FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT ASSET PURCHASE AGREEMENT (this "Amendment"), dated
June 5, 2001, is entered into by and among ACCEPTANCE INSURANCE COMPANIES INC.,
a Delaware corporation ("AICI") for itself and on behalf of ACCEPTANCE INSURANCE
COMPANY, a Nebraska insurance corporation ("AIC"), AMERICAN GROWERS INSURANCE
COMPANY, a Nebraska insurance corporation ("AGIC") and AMERICAN AGRISURANCE,
INC., an Iowa corporation ("AMAG") (AICI, AIC, AGIC and AMAG are referred to
herein collectively as "Purchaser"), and GORAN CAPITAL INC., a Canadian
corporation ("Goran"), XXXXXX INTERNATIONAL GROUP, INC., an Indiana corporation
("SIG"), IGF HOLDINGS, INC., an Indiana corporation ("IGFH") and IGF INSURANCE
COMPANY, an Indiana insurance corporation ("IGF") (Goran and SIG are referred to
collectively in this Amendment as "Shareholders," and IGFH and IGF are referred
to collectively in this Amendment as "Sellers").
WHEREAS, the parties to this Amendment are parties to an Asset Purchase
Agreement dated May 23, 2001 (the "Asset Purchase Agreement"); and
WHEREAS, the parties to this Amendment desire to amend certain provisions
of the Asset Purchase Agreement as set forth herein;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants and agreements set forth in this Amendment, and for other good and
valuable consideration the receipt and sufficiency of which the parties hereto
hereby acknowledge, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO ARTICLE I. Article I Definitions of the Asset
Purchase Agreement is amended by (i) deleting the definition of "Advance MPCI
Commission" and (ii) inserting the following in lieu thereof:
"ADVANCE MPCI COMMISSION" shall mean the sum of (i) that portion of
the Actual 2001 MPCI Agent Commission actually paid to Agents by Sellers
before Closing pursuant to Assigned and Assumed Contracts listed on
Schedule 3.05B and reimbursed to Sellers at Closing pursuant to Section
2.02(a)(iii) of this Agreement, plus (ii) that portion of the commissions
Sellers advanced to Agents with respect to MPCI Policies for the 2000 MPCI
Crop Year for which Purchaser elects, in its sole discretion, to reimburse
Sellers at Closing pursuant to Section 2.02(a)(iii) of this Agreement.
SECTION 2. AMENDMENT TO SECTION 2.02. Section 2.02 of the Asset
Purchase Agreement is amended by inserting the following new Section 2.02
(i) after Section 2.02(h):
(i) Notwithstanding any other provisions of this Agreement,
Purchaser may in its sole discretion withhold from the A&O otherwise
payable by Purchaser to Sellers pursuant to Section 2.02(c) and 2.02(f)
such sum, not to exceed Three Million Dollars ($3,000,000), as Purchaser
in good faith reasonably believes may become due to FCIC with respect to
potential liabilities arising from or related to the RMA Special
Investigations Branch Case Number SIB-2001-15:2000 Crop Year Multiple
Peril Crop Insurance Apple Claims (the "Apple Claims"). Purchaser may
withhold any or all of such amount until such time as there is a complete,
final, binding, and nonappealable settlement or determination made with
respect to the Apple Claims by a Governmental
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Entity of competent jurisdiction (a "Final Determination"). Purchaser
shall be entitled to retain from the amount withheld under this Section
2.02(i) an amount equal to all liabilities payable by it pursuant to the
Final Determination and Sellers shall not be entitled to any amounts so
retained. If the amount withheld by Purchaser under this Section 2.02(i)
exceeds the amount payable by Purchaser pursuant to the Final
Determination, promptly after the Final Determination Purchaser shall
remit to Seller an amount equal to such excess, if any, plus interest on
such excess amount at the rate of 1 1/2% per month or part thereof from
September 15, 2001 until payment of such excess amount and interest is
made hereunder by Purchaser to Sellers. If the amount withheld by
Purchaser under this Section 2.02(i) is less than the amount payable by
Purchaser pursuant to the Final Determination, promptly after the Final
Determination Sellers shall remit to Purchaser an amount equal to the
difference between the amount payable and the amount withheld by Purchaser
plus interest on such difference at the rate of 1 1/2% per month or part
thereof from the date of the Final Determination until payment of such
difference and interest is made hereunder by Sellers to Purchaser. The
amounts payable to Purchaser by Sellers under this Section 2.02(i), if
any, are in addition to any other amounts due or payable by Sellers to
Purchaser under this Agreement.
SECTION 3. AMENDMENT TO SECTION 5.11. Section 2.02 of the Asset Purchase
Agreement is amended by (i) deleting Section 5.11 in its entirety and (ii)
inserting the following in lieu thereof:
SECTION 5.11. UPDATE OF DISCLOSURE SCHEDULES. Sellers and Purchaser
shall each have the right from time to time after the date hereof to
update or otherwise correct those and all other schedules of the
respective parties until the Closing Date. Any updated or
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corrected schedule shall be promptly furnished by the party updating or
correcting the schedule to the other party, and the other party shall have
the right to review the updated or corrected schedule. If the party
receiving the updated or corrected schedule, after reasonable consultation
with the other party, determines in good faith that the items disclosed on
the updated schedules have or could reasonably be expected to have a
Sellers Material Adverse Effect or a Purchaser Material Adverse Effect, as
the case may be, Sellers or Purchaser, as the case may be, may terminate
the Agreement and neither party shall have any further obligations to the
other hereunder, except as otherwise provided in this Agreement.
SECTION 4. AMENDMENT TO SECTION 5.13. Section 5.13 of the Asset Purchase
Agreement is amended by (i) deleting Section 5.13(b) in its entirety and (ii)
inserting the following in lieu thereof:
(b) Sellers and Shareholders agree that they shall cancel effective
as of the Closing Date all Reinsurance Contracts with respect to the
Business, except for the treaty listed in Schedule 3.11 as "Tri-County
Farmers Mutual Crop Hail Quota Share Insurance Agreement (Malta, MT)," and
provide a copy of all cancellation notices to Purchaser at Closing.
SECTION 5. MISCELLANEOUS.
(a) Except as so amended by this Amendment, the Asset Purchase Agreement
is in all respects ratified and confirmed and all provisions thereof shall be
given full force and effect as if they were set forth herein in their entirety,
and all references in the Asset Purchase Agreement, any Ancillary Agreement (as
defined in the Asset Purchase Agreement) or any related
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agreements to the "Agreement" shall mean the Asset Purchase Agreement as so
amended by this Amendment.
(b) This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment on the date
first above written.
ACCEPTANCE INSURANCE COMPANIES INC.
By /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President
GORAN CAPITAL INC.
By /s/ Xxxx X. Xxxxxx
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Name Xxxx X. Xxxxxx
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Title President and CEO
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XXXXXX INTERNATIONAL GROUP, INC.
By /s/ Xxxx X. Xxxxxx
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Name Xxxx X. Xxxxxx
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Title Vice Chairman
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IGF HOLDINGS, INC.
By /s/ Xxxx X. Xxxxxx
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Name Xxxx X. Xxxxxx
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Title Vice Chairman
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IGF INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxx
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Name Xxxx X. Xxxxxx
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Title Vice Chairman, CEO, and President
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