SECURITIES PURCHASE AGREEMENT
Dated as of March 12, 1998
between
XXXXXX X. XXXXXX
XXXXXXX X. XXXXXX
XXXX X. XXXXXX
XXXXX XXXXXX
XXXXXXX XXXX
XXXXXX X. XXXX
XXXXXXX X. XXXXXX IRREVOCABLE TRUST
XXXXX X. XXXXXX IRREVOCABLE TRUST
XXXXXX X. XXXXXX IRREVOCABLE TRUST
and
CIHC, INCORPORATED
TABLE OF CONTENTS
Section Page
------- ----
1. Definitions..................................................... 1
2. The Purchase of Securities...................................... 4
3. Conditions Precedent
3.1. Conditions to the Purchase................................ 5
4. Representations and Warranties of the Purchaser
4.1. Organization.............................................. 6
4.2. Due Execution, Delivery and Performance
of the Agreement............................ 6
4.3. Investment Representation................................. 7
5. Representations and Warranties of the Company
5.1. Enforceable Obligations................................... 7
5.2. Ownership of Securities; All Securities................... 8
5.3. No Litigation ............................................ 8
5.4. Broker's or Finder's Fees ................................ 8
6. Securities Law Matters.......................................... 8
7. Miscellaneous
7.1. Press Releases............................................ 8
7.2. Expenses.................................................. 9
7.3. Indemnification........................................... 9
7.4. Assignment................................................ 9
7.5. Remedies.................................................. 10
7.6. Waiver of Jury Trial...................................... 10
7.7. Arbitration............................................... 10
7.8. Severability.............................................. 10
7.9. Parties................................................... 10
7.10. Conflict of Terms......................................... 10
7.11. Governing Law............................................. 10
7.12. Notices................................................... 11
7.13. Survival.................................................. 12
7.14. Section Titles............................................ 12
7.15. Counterparts.............................................. 12
EXHIBIT A - COPY OF DEBENTURES
EXHIBIT B - FORM OF COMPANY SECURITIES PURCHASE AGREEMENT
EXHIBIT C - FORM OF REAL ESTATE PURCHASE AGREEMENT
i
EXHIBIT D - FORM OF EMPLOYMENT AGREEMENT FOR XXXXXX XXXXXX
EXHIBIT E - FORM OF EMPLOYMENT AGREEMENT FOR XXXXXXX XXXXXX
xx
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of March 12, 1998 by and among
XXXXXX X. XXXXXX, XXXXXXX X. XXXXXX, XXXX X. XXXXXX, XXXXX XXXXXX, XXXXXXX XXXX,
XXXXXX X. XXXX, XXXXXXX X. XXXXXX IRREVOCABLE TRUST, XXXXX X. XXXXXX IRREVOCABLE
TRUST and XXXXXX X. XXXXXX IRREVOCABLE TRUST (the "Sellers") and CIHC,
INCORPORATED, a Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, upon the terms and conditions hereinafter provided, the
Sellers have agreed to sell to the Purchaser, and the Purchaser has agreed to
purchase from the Sellers, $4,750,000 of 12% Subordinated Convertible Notes of
General Acceptance Corporation, a Delaware corporation (the "Company"), copies
of which are attached hereto as Exhibit A (the "Debentures") convertible into
shares of Common Stock, no par value, of the Company (the "Common Stock") and
3,814,000 shares of Common Stock held by the Sellers for $.30 per share (the
Debentures and the Common Stock are together referred to herein as the
"Securities").
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
I. DEFINITIONS
In addition to the defined terms appearing above, capitalized terms
used in this Agreement shall have (unless otherwise provided elsewhere in this
Agreement) the following respective meanings when used herein:
"Affiliate" shall mean, with respect to any Person, (i) each Person
that, directly or indirectly, owns or controls, whether of record or
beneficially, or as a trustee, guardian or other fiduciary, 5 percent or more of
the Stock having ordinary voting power in the election of directors of such
Person, (ii) each Person that controls, is controlled by or is under common
control with such Person or any Affiliate of such Person, or (iii) each of such
Person's officers, directors and general partners. For the purpose of this
definition, "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition the Purchaser shall not be deemed to
be an Affiliate of the Company or any of the Affiliates of the Company
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by reason of the purchase of the Debentures.
"Agreement" shall mean this Securities Purchase Agreement, including
all amendments, modifications and supplements hereto and any appendices,
exhibits or schedules to any of the foregoing, and shall refer to this
Securities Purchase Agreement as the same may be in effect at the time such
reference becomes operative.
"Ancillary Agreements" shall mean any supplemental agreement,
undertaking, instrument, document or other writing executed by the Sellers, the
Company or any of its Subsidiaries or by any of their Stockholders as a
condition to purchasing any of the Securities under this Agreement or otherwise
in connection herewith, including, without limitation, the Real Estate Purchase
Agreement and the Company Securities Purchase.
"Board" shall mean the Company's Board of Directors.
"Business Day" shall mean any day that is not a Saturday, a Sunday or a
day on which banks are required or permitted to be closed in the State of
Indiana.
"Closing Date" shall mean that date upon which the Closing occurs and
shall be a date agreed upon between the Company and the Purchaser and "Closing"
shall mean the moment on the Closing Date on which the purchase and sale of the
Securities is made.
"Company Securities Purchase Agreement" shall mean the Securities
Purchase Agreement by and among Purchaser and the Company, in substantially the
form attached hereto as Exhibit B.
"Default" shall mean any event which, with the passage of time or
notice or both, would, unless cured or waived, become an Event of Default.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time.
"Indebtedness" of any Person shall mean (i) all indebtedness of such
Person for borrowed money (including, without limitation, reimbursement and all
other obligations with respect to surety bonds, letters of credit and bankers'
acceptances, whether or not matured), but not including accounts payable and
other obligations to trade creditors and normal operating expenses characterized
as liabilities incurred in the ordinary course of business, (ii) all obligations
evidenced by notes, bonds, debentures or similar
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instruments (except where such instruments evidence repayment of amounts
referred to in subparagraph (i)), (iii) all Capital Lease Obligations, and (iv)
in the case of the Company, the Debentures.
"Licenses" shall have the meaning assigned to such term in Section
5.19; individually a "License."
"Lien" shall mean any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, Charge, claim, security interest,
easement or encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any Capital Lease or title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing, and the
filing of, or agreement to give, any financing statement perfecting a security
interest under the Uniform Commercial Code or comparable law of any
jurisdiction).
"Material Adverse Effect" shall mean any material adverse effect on the
business, assets, operations, or financial or other condition or prospects of
the Company or any of its Subsidiaries.
"Obligations" shall mean any principal, interest, premium, penalties,
fees and other liabilities and obligations due under the documentation governing
any Indebtedness (including interest after the commencement of any bankruptcy,
insolvency, rehabilitation, liquidation, conservation, supervision or similar
proceedings).
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
limited liability company, institution, public benefit corporation, entity or
government (whether Federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
"Real Estate Purchase Agreement" shall mean the Real Estate Purchase
Agreement by and among the Company and Xxxxxxx X. Xxxxxx in substantially the
form attached hereto as Exhibit C.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Indebtedness" shall mean all Indebtedness under the Financing
Agreements whether or not existing or hereinafter incurred and whether fixed or
contingent.
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"Stock" shall mean all shares, options, warrants, general or limited
partnership interests, participations or other equivalents (regardless of how
designated) of or in a corporation, partnership or equivalent entity whether
voting or nonvoting, including, without limitation, common stock, preferred
stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of
the General Rules and Regulations promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended).
"Subsidiary" shall mean, with respect to any Person, (a) any
corporation of which an aggregate of 50 percent or more of the outstanding Stock
(irrespective of whether, at the time, Stock of any other class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, owned
legally or beneficially by such Person and/or one or more Subsidiaries of such
Person, and (b) any partnership in which such Person and/or one or more
Subsidiaries of such Person shall have an interest (whether in the form of
voting or participation in profits or capital contribution) of 50 percent or
more.
"Transactions" shall mean the purchase and sale of the Securities as
described in the recitals to this Agreement, and all transactions related or
incidental thereto.
Any accounting term used in this Agreement shall have, unless otherwise
specifically provided herein, the meaning customarily given such term in
accordance with GAAP and all financial computations hereunder shall be computed,
unless otherwise specifically provided herein, in accordance with GAAP
consistently applied and consistent with the Financials. That certain terms or
computations are explicitly modified by the phrase "in accordance with GAAP"
shall in no way be construed to limit the foregoing.
The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole, including the Exhibits and Schedules
hereto, as the same may from time to time be amended, modified or supplemented
and not to any particular section, subsection or clause contained in this
Agreement. As used herein, the word "or" is not exclusive.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the
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neuter.
II. THE PURCHASE OF SECURITIES
Subject to the terms and conditions herein, on the Closing Date, the
Purchaser agrees to purchase from the Sellers, and the Sellers agree, jointly
and severally, to sell to the Purchaser, the Debentures for an aggregate
purchase price of $4,750,000 (General Acceptance Corporation will pay the
accrued interest up to the Closing Date). Copies of the Debentures are attached
hereto as Exhibit A. Subject to the terms and conditions herein, on the Closing
Date, the Purchaser agrees to purchase from the Sellers, and the Sellers agree,
jointly and severally, to sell to the Purchaser an aggregate of 3,814,000 shares
of Common Stock for $.30 per share; provided, however, that in the event
Purchaser, or any of its affiliates purchases shares of Common Stock for more
than $.30 per share after the date hereof and until such time as Purchaser and
its affiliates owns 100% of the outstanding Common Stock, if ever, Purchaser
shall pay the Sellers an additional aggregate amount equal to the number of
shares of Common Stock purchased pursuant to this Agreement times the amount by
which the highest price per share paid by Purchaser for shares of Common Stock
exceeds $.30 per share. The Closing shall take place in Indianapolis, Indiana on
the Closing Date. On the Closing Date, the Sellers will deliver to the Purchaser
the Securities, against delivery by the Purchaser of the purchase price to the
Sellers in immediately available funds.
III. CONDITIONS PRECEDENT
3.1. Conditions to the Purchase. Notwithstanding any other provision of
this Agreement and without affecting in any manner the rights of the Purchaser
hereunder, the Sellers shall have no rights under this Agreement (but shall have
all applicable obligations hereunder), and the Purchaser shall not be obligated
to make the purchases of the Securities hereunder, unless and until each of the
following conditions precedent shall have been fulfilled or waived by the
Purchaser, and the Sellers shall have delivered, where applicable, in form and
substance satisfactory to the Purchaser, and (unless otherwise indicated) each
dated the Closing Date:
(a) All of the representations and warranties of the Sellers contained
in this Agreement or in any of the Ancillary Agreements shall be correct in all
material respects as though made on and as of the Closing Date, except to the
extent that any such representation or warranty expressly relates to an earlier
date.
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(b) The waiting period (and any extension thereof) applicable to the
transactions contemplated by this Securities Purchase Agreement under the Xxxx
Xxxxx Xxxxxx Antitrust Improvement Act shall have been terminated or shall have
otherwise expired.
(c) Resolutions of the Board certified by the Secretary or Assistant
Secretary of the Company, to be dated, duly adopted and in full force and effect
as of the Closing Date, authorizing (i) the consummation of the Transactions and
(ii) specific officers to execute and deliver the Ancillary Agreements.
(d) Certificate of Existence from the Indiana Secretary of State, dated
the most recent practicable date prior to the Closing Date, showing that the
Company is organized and in good standing in the State of Indiana.
(e) Each consent, license and approval required in connection with the
execution, delivery, performance, validity and enforceability of this Agreement,
the Ancillary Agreements, and the consummation of the Transactions; such
consents, licenses and approvals shall be in full force and effect and be
satisfactory in form and substance to the Purchaser.
(f) A copy of the certificate of incorporation and all amendments
thereto of each of the Company, General Acceptance Corporation Reinsurance,
Limited and copies of their respective by-laws all of which shall be certified
by the secretary or assistant secretary of each respective corporation as true
and correct as of the Closing Date.
(g) The closing of the transactions under the Company Securities
Purchase Agreement.
(h) The closing of the transactions under the Real Estate Purchase
Agreement and resolution of issues related to the mortgage provided by First
Chicago NBD National Bank in a manner satisfactory to Purchaser in its sole
discretion.
(i) The Debentures and 3,814,000 shares of Common Stock are free and
clear of all Liens.
(j) Employment Agreements for Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx, copies
of which are attached hereto as Exhibits D and E, respectively, shall have been
terminated in exchange for full payment thereunder, and Xxxxxx Xxxxxx and
Xxxxxxx Xxxxxx shall have resigned from all of their positions with the Company
and its
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subsidiaries.
(k) Agreement by General Electric Capital Corporation to amend the
terms of its loan agreement with the Company which amendment shall be
satisfactory to Purchaser in its sole discretion;
(l) Such additional information and materials as the Purchaser may
request.
IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser makes the following representations and warranties to the
Sellers, each and all of which shall survive the execution and delivery of this
Agreement and the Closing until the Securities are no longer held by the
Purchaser:
4.1 Organization. The Purchaser is a corporation duly organized,
validly existing, and in good standing under the laws of the state of its
incorporation and it has full corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The Purchaser is a wholly
owned subsidiary of Conseco, Inc.
4.2 Due Execution, Delivery and Performance of the Agreement. The
execution, delivery, and performance of this Agreement (i) have been duly
authorized by all requisite corporate action by the Purchaser, and (ii) will not
violate the Certificate of Incorporation or Bylaws of the Purchaser or any
provision of any material indenture, mortgage, agreement, contract, or other
instrument to which it is a party or by which it or any of its material
properties or assets are bound, or be in conflict with, result in a breach of or
constitute (upon notice or lapse of time or both) a default under any such
indenture, mortgage, agreement, contract, or other instrument. This Agreement is
a legal, valid, and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms.
4.3 Investment Representation. The Purchaser represents and warrants
that it is purchasing the Securities for its own account, for investment
purposes and not with a view to the distribution thereof. The Purchaser agrees
that it will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any of the Securities (or solicit any offers
to buy, purchase, or otherwise acquire or take a pledge of any of the
Securities), except in compliance with the Securities Act of
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1933, as amended (the "Act"), the rules and regulations thereunder and any
applicable state securities laws.
V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
To induce the Purchaser to purchase the Securities as herein provided,
the Sellers, jointly and severally, make the following representations and
warranties to the Purchaser, each and all of which shall survive the execution
and delivery of this Agreement and the Closing:
5.1. Enforceable Obligations. The execution, delivery and performance
by the Sellers of this Agreement and the Ancillary Agreements and all
instruments and documents to be delivered by the Sellers: (i) will not violate
any law or regulation, including any and all Federal and state securities laws,
or any order or decree of any court or governmental instrumentality; (ii) except
as set forth on Schedule 5.1, will not, in any material respect, conflict with
or result in the breach or termination of, constitute a default under or
accelerate any performance required by, any indenture, mortgage, deed of trust,
lease, agreement or other instrument to which any of the Sellers is a party or
by which any of the Sellers or any of their property is bound; and (iii) will
not result in the creation or imposition of any Lien upon any of the Securities.
Except as set forth on Schedule 5.1, no consent, waiver or authorization of, or
filing with, any Person (including, without limitation, any Governmental
Authority), which has not been obtained as of the Closing Date is required in
connection with the execution, delivery, performance by, or validity of this
Agreement or the Ancillary Agreements. All such consents, waivers,
authorizations and filings, except as set forth on Schedule 5.1, have been
obtained or made. On or prior to the Closing Date, each of this Agreement and
the Ancillary Agreements shall have been duly executed and delivered by each of
the Sellers and each shall then constitute a legal, valid and binding obligation
of the Sellers enforceable against the Sellers in accordance with its terms,
except to the extent that (a) enforcement may be limited by or subject to the
principles of public policy and any bankruptcy and insolvency, reorganization,
moratorium or similar laws now or hereafter in effect relating to or limited to
creditors' rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief are subject to certain equitable
defenses and to the discretion of the court or other similar entity before which
any proceeding thereafter may be brought.
8
5.2. Ownership of Securities; All Securities. The Sellers have good and
marketable title to all of the Securities, free and clear of all Liens. The
Securities include all of the securities of the Company owned by any of the
Sellers.
5.3. No Litigation. No material action, claim or proceeding is now
pending or, to the knowledge of the Sellers, threatened against any of the
Sellers, at law, in equity or otherwise, before any court, board, commission,
agency or instrumentality of any Federal, state, local or foreign government or
of any agency or subdivision thereof, or before any arbitrator or panel of
arbitrators nor to the knowledge of any of the Sellers does a state of facts
exist which is reasonably likely to give rise to such proceedings which
questions the validity of any of this Agreement or the Ancillary Documents or
any action taken or to be taken pursuant thereto.
5.4. Broker's or Finder's Fee. No agent, broker, investment banker,
person or firm acting on behalf of or under the authority of any of the Sellers
is or will be entitled to any broker's or finder's fee or any other commission
or similar fee directly or indirectly from the Company in connection with any of
the transactions contemplated by this Agreement.
VI. SECURITIES LAW MATTERS
Each certificate or instrument representing the Securities shall bear a
legend substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED BY
THE HOLDER PURSUANT TO A SECURITIES PURCHASE AGREEMENT DATED APRIL 11,
1997 BY AND BETWEEN GENERAL ACCEPTANCE CORPORATION AND CAPITOL AMERICAN
LIFE INSURANCE COMPANY, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"), OR ANY APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION, UNDER THE ACT,
BASED ON AN OPINION LETTER OF COUNSEL REASONABLE SATISFACTORY TO THE
COMPANY OR A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION."
VII. MISCELLANEOUS
7.1. Press Releases. Except as required by applicable law, the
Purchaser and the Sellers will not give notice to third parties
9
or otherwise make any public statement or releases concerning this Agreement or
the transactions contemplated hereby except for such written information as
shall have been approved in writing as to form and content by the other party,
which approval shall not be unreasonably withheld.
7.2. Expenses. The Sellers will pay their own costs and expenses and
the Purchaser will pay its own costs and expenses incident to preparing for,
entering into and carrying out this Agreement and the consummation of the
transactions contemplated hereby.
7.3. Indemnification. (a) The Sellers shall indemnify and hold harmless
the Purchaser against and from any losses, claims, damages, liabilities or
expenses ("Losses") insofar as the Losses (or actions in respect thereof) arise
out of or are based upon the falsity or incorrectness as of the Closing Date of
any representation or warranty of the Sellers contained in or made pursuant to
this Agreement or any of the Ancillary Agreements. The Sellers shall also pay
all reasonable attorneys' and accountants' fees and costs and court costs
incurred by the Purchaser in enforcing the indemnification provided for in this
Section 7.3(a). Notwithstanding the foregoing, the Sellers expressly agree and
acknowledge that the right of indemnification granted herein to the Purchaser
shall not be deemed to be the exclusive remedy available to the Purchaser for
any of the matters described in this Section 7.3(a).
(b) The Purchaser shall indemnify and hold harmless the Sellers against
and from any Losses insofar as the Losses (or actions in respect thereof) arise
out of or are based upon the falsity or incorrectness as of the Closing Date of
any representation or warranty of the Purchaser contained in or made pursuant to
this Agreement or any of the Ancillary Agreements. The Purchaser shall also pay
all reasonable attorneys' and accountants' fees and costs and court costs
incurred by the Sellers in enforcing the indemnification provided for in this
Section 7.3(b). Notwithstanding the foregoing, the Purchaser expressly agrees
and acknowledges that the right of indemnification granted herein to the Sellers
shall not be deemed to be the exclusive remedy available to the Sellers for any
of the matters described in this Section 7.3(b).
7.4. Assignment. Neither party may assign any of its rights, title,
interest, remedies, powers and duties hereunder without prior written consent of
the other parties hereto. However, the
10
Sellers hereby consent to the Purchaser's assignments, at any time or times, of
any of the Purchaser's rights, title, interests, remedies, powers and duties
hereunder, whether evidenced by a writing or not, to any of the Affiliates of
the Purchaser that are Subsidiaries of Conseco, Inc. The Sellers agree that they
will use their best efforts to assist and cooperate with the Purchaser in any
manner reasonably requested by the Purchaser to effect such assignments.
7.5. Remedies. The Purchaser's rights and remedies under this Agreement
shall be cumulative and nonexclusive of any other rights and remedies which the
Purchaser may have under any other agreement, including without limitation, the
Ancillary Agreements, by operation of law or otherwise.
7.6. Waiver of Jury Trial. The parties hereto waive all right to trial
by jury in any action or proceeding to enforce or defend any rights under this
Agreement or the Ancillary Agreements.
7.7. Arbitration. If a dispute arises as to interpretation of this
Agreement, it shall be decided finally by three arbitrators in an arbitration
proceeding conforming to the Rules of the American Arbitration Association
applicable to commercial arbitration. The arbitrators shall be appointed as
follows: one by the Sellers, one by the Purchaser and the third by the said two
arbitrators, or, if they cannot agree, then the third arbitrator shall be
appointed by the American Arbitration Association. The third arbitrator shall be
chairman of the panel and shall be impartial. The arbitration shall take place
in Carmel, Indiana. The decision of a majority of the Arbitrators shall be
conclusively binding upon the parties and final, and such decision shall be
enforceable as a judgment in any court of competent jurisdiction. Each party
shall pay the fees and expenses of the arbitrator appointed by it, its counsel
and its witnesses. The parties shall share equally the fees and expenses of the
impartial arbitrator.
7.8. Severability. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
7.9. Parties. This Agreement and the other Ancillary Agreements shall
be binding upon, and inure to the benefit of, the
11
successors of the Sellers, and the successors and assigns of the Purchaser.
7.10. Conflict of Terms. Except as otherwise provided in this Agreement
or any of the Ancillary Agreements by specific reference to the applicable
provisions of this Agreement, if any provision contained in this Agreement is in
conflict with, or inconsistent with, any provision in any of the Ancillary
Agreements, the provision contained in this Agreement shall govern and control.
7.11. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT OR IN ANY OF THE ANCILLARY AGREEMENTS, IN ALL RESPECTS, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF INDIANA APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF
REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. THE PURCHASER AND THE SELLERS AGREE TO SUBMIT TO PERSONAL JURISDICTION
AND TO WAIVE ANY OBJECTION AS TO VENUE IN THE FEDERAL OR STATE COURTS IN THE
COUNTY OF MARION, STATE OF INDIANA. SERVICE OF PROCESS ON THE SELLERS OR THE
PURCHASER IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF
THE ANCILLARY AGREEMENTS SHALL BE EFFECTIVE IF MAILED TO SUCH PARTY AT THE
ADDRESS LISTED IN SECTION 7.9 HEREOF. NOTHING HEREIN SHALL PRECLUDE THE
PURCHASER OR THE SELLERS FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION.
7.12. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by another, or whenever any of the parties desires to give or serve upon
another any communication with respect to this Agreement, each such notice,
demand, request, consent, approval, declaration or other communication shall be
in writing and either shall be delivered in person with receipt acknowledged or
by registered or certified mail, return receipt requested, postage prepaid, or
telecopied and confirmed by telecopy answer back, addressed as follows:
(a) If to the Purchaser at:
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
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Attention: Xxxx X. Xxxx
Facsimile: (000) 000-0000
(b) If to the Sellers at:
Xx. Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Xx. Xxxxxx X. Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, or upon receipt if the same shall have been
telecopied and confirmed by telecopy answer back or three (3) Business Days
after the same shall have been deposited in the United States mail. Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
7.13. Survival. The representations and warranties of the Sellers in
this Agreement shall survive the execution, delivery and acceptance hereof by
the parties hereto and the Closing.
7.14. Section Titles. The Section titles and Table of Contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
7.15. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall, collectively and separately,
constitute one agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first written above.
CIHC, INCORPORATED
As the Purchaser
By:/s/ XXXXXXX X. XXXXXXXX
---------------------------
Xxxxxxx X. Xxxxxxxx, Senior
Vice President
/s/XXXXXX X. XXXXXX
------------------------------
Xxxxxx X. Xxxxxx
/s/XXXXXXX X. XXXXXX
------------------------------
Xxxxxxx X. Xxxxxx
/s/XXXX X. XXXXXX
------------------------------
Xxxx X. Xxxxxx
/s/XXXXX XXXXXX
------------------------------
Xxxxx Xxxxxx
/s/XXXXXXX XXXX
------------------------------
Xxxxxxx Xxxx
/s/XXXXXX X. XXXX
------------------------------
Xxxxxx X. Xxxx
XXXXXXX X. XXXXXX IRREVOCABLE
TRUST
By:/s/XXXX X. XXXXXX
------------------------------
Xxxx X. Xxxxxx, Trustee
By:/s/XXXXXXX XXXX
------------------------------
Xxxxxxx Xxxx, Trustee
XXXXX X. XXXXXX IRREVOCABLE
TRUST
By:/s/XXXX X. XXXXXX
------------------------------
Xxxx X. Xxxxxx, Trustee
By:/s/XXXXXXX XXXX
------------------------------
Xxxxxxx Xxxx, Trustee
XXXXXX X. XXXXXX IRREVOCABLE
TRUST
By:/s/XXXX X. XXXXXX
------------------------------
Xxxx X. Xxxxxx, Trustee
By:/s/XXXXXXX XXXX
------------------------------
Xxxxxxx Xxxx, Trustee
