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EXHIBIT 10.1
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (this "Agreement"), is made this
27 day of April, 1999, by and between MEGA GROUP, INC., a New York corporation,
with an address, for the purposes hereof, at 000 Xxxxxx Xx. Xxxxxxxx Xxxx XX
00000 (the "Seller"), and GLOBAL UNDERWRITERS AGENCY, INC. ("Buyer"), a New
York corporation, with an address, for the purposes hereof, at 000 Xxxxxx Xx
Xxxxxxxx Xxxx XX 00000.
WHEREAS, Seller is currently engaged in the property and casualty
insurance business; and
WHEREAS, Seller desires to sell to the Buyer and the Buyer desires to
purchase from Seller, certain of the business assets belonging to the
Commercial Lines division of the Seller; and
WHEREAS, the parties hereto are desirous of memorializing herein their
mutual understanding and agreement with respect to the purchase by Buyer of
certain assets of Seller.
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby mutually acknowledged, the parties hereto agree as follows:
1. ASSETS PURCHASED.
Subject to the terms and conditions hereafter set forth, Seller will
sell to the Buyer and the Buyer will purchase from Seller, those assets, both
tangible and intangible, including but not limited to: insurance renewals,
customer lists, files, records, expirations, office supplies and equipment,
furniture, fixtures, other equipment listed and described on Exhibit "A"
attached hereto and made a part hereof for all purposes (hereinafter the
"Assets"). Except for the Assets specifically listed on Exhibit "A", the
Seller shall retain title to all of its other assets.
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2. PURCHASE PRICE.
The Purchase Price for the Assets shall be TWO HUNDRED FIFTY THOUSAND
AND 00/100 DOLLARS and shall be payable as follows:
i. $150,000.00 by bank or certified check on the date of
closing.
ii. $100,000.00 by Buyer's non-negotiable promissory note
in form and substance acceptable to the parties and
their respective counsel (the "Mega Note"). Among the
terms to be included in the Mega Note, shall be a
provision for the payment of interest at an annual rate
of eight percent (8%). The Mega Note shall contain
repayment terms providing for payment of principal plus
interest. Principal shall be paid in accord with the
following schedule: $1,000.00 per month for the first
two (2) years of the term of the Mega Note, then
$2,000.00 per month for the ensuing three (3) years and
a balloon payment of all outstanding principal plus
accrued and as yet unpaid interest on the fifth (5th)
anniversary of the date of the Mega Note. The Mega
Note may be prepaid without penalty or prepayment
consideration.
The purchase price shall be allocated as follows:
ITEM AMOUNT
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Policy expirations and renewals: $100,000.00
Furniture, fixtures, equipment and supplies: $12,000.00
Good Will: $120,000.00
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Prepaid Rental Agreement: $18,000.00
3. ALLOCATION OF PREMIUMS AND COMMISSIONS.
Seller and Buyer agree that all premiums on policies with an effective
or renewal date before April 30, 1999 or the actual closing date, if different,
are to be billed and collected by the Seller, and the Seller is to make net
payment to the carrier for same. Commissions on Commercial Lines payable on or
after April 30, 1999, including direct xxxx commissions for General Accident
Commercial Lines received in April, 1999 (hereinafter, the "Buyer Commissions")
shall belong to the Buyer, regardless of the effective date of any policy or
transaction regardless of the date hereof or of the date on which the
transaction contemplated hereby closes. Seller covenants and agrees to make
timely payment of balances due to insurance carriers or to customers for
premiums for which it is responsible. Buyer and Seller agree to promptly remit
to each other premiums, commissions and documents that belong to the other
party.
4. PROFIT SHARING AND INCENTIVE COMMISSIONS. All profit sharing
and incentive commissions earned by Seller in calendar year 1999 and allocated
to Commercial Lines shall be promptly payable in their entirety to Buyer.
In the event that an insurance company issues a single check to Seller
combining such incentive commissions and profit sharing for Commercial Lines
and Personal Lines such monies shall be distributed between Buyer and Seller in
the same proportion as the amount of Commercial Lines premiums bears to the
total premiums received by the insurance company delivering the check in
question.
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5. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller makes the following representations and warranties to the Buyer:
a. Seller is duly organized and validly exists and is in good
standing under the laws of the State of New York, with full
power to own its assets and conduct is business as the same are
presently owned and conducted. Seller its licensed by the New
York State Insurance Department for and is authorized to sell
all insurance products presently included in its book of
business. Seller has good and marketable title to the Assets,
free and clear of any interest, lien, claim or encumbrance
whatsoever and has or will pay or discharge each and every
liability arising out of the operation of Seller's business and
attributable to such Assets prior to the Closing Date.
b. Seller is duly licensed by the Insurance Department of the
State of New York as an insurance agent and is a party to
currently effective agency agreements with all the following
insurance companies:
Travelers Insurance Co. Utica First
CNA Insurance Co. Wm. X. XxXxx
CGU Insurance Co. St. Xxxx Ins.
Hartford Insurance Group Merchants Ins.
Blue Ridge Insurance Utica National
Eastern Mutual Ins. Chubb Group
Amwest Security Mutual
New York Mutual Zurich Ins. Co.
General Accident
c. All commissions owed and payable to producers, brokers, and
cluster agents for Commercial Lines business will have been
paid to them within five (5) days of Closing, including, but
not limited to commissions owed to J&J Insurance, XxxXxx
Agency, Xxxxxx'x Agency, Xxxxxxx-Xxxxx, KBS International,
Northeast General
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Services, and Xxxx Xxxx.
d. The Seller has received no notice or communication, written or
oral, from any insurance company represented by the Seller nor
has it received any information of any nature whatever which
would lead a reasonably prudent business person to believe that
any insurance company presently represented by the Seller
intends or is in any way considering terminating the agency
relationship between such insurance company and the Seller.
e. All tax returns required to be filed by Seller have been timely
filed and all taxes due and payable thereon have been paid.
f. There are no legal actions or proceedings pending or threatened
against Seller and Seller is not a party to or the subject of
nor has it received any written or other notice of any pending
or threatened investigation, hearing or proceeding by any
governmental agency court or governmental entity which could
have a material adverse affect on the transaction contemplated
hereby or on the Assets to be conveyed hereunder; except such
matters involving Xxxxxx Xxxxx, Xxxxxx Xxxxxxxxxx, Xxxxxxx and
Xxxxx, Marine Midland Bank and Xxxxx & Xxxx, P.C. As to such
matters, the Buyer has been made aware of them and elects to
proceed hereunder notwithstanding.
g. During the period from the date hereof the Closing, Seller
shall:
i. Conduct its business and operations in substantially
the same manner in which the same have heretofore been
conducted and maintain its books of account in a manner
that fairly represents its business transactions;
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ii. Use best efforts to maintain and preserve the business
organization intact and to preserve, subject to changes
in the ordinary course of business, relationships with
employees, customers, suppliers and others having
business relations with it;
iii. Not take any action which would cause the
representations and warranties made by Seller herein to
be materially inaccurate at the Closing, or otherwise
interfere with the transactions contemplated hereby.
h. No representation or warranty made by Seller and no schedule,
exhibit, certificate, document or other instrument furnished to
the Buyer pursuant to this Agreement knowingly contains any
untrue statement of a material fact, or omits to state a
material fact necessary to make the statements contained
therein not misleading.
i. By closing on this transaction, the Seller reaffirms that each
warranty and representation made herein is accurate as of the
Closing Date, and it further recognizes and agrees that it is
under a continuing obligation to bring to the attention of the
Buyer, in writing, any change or occurrence which, in the
exercise of utmost good faith, might influence the Buyer in its
decision to purchase the Assets hereunder.
6. REPRESENTATIONS OF BUYER.
The Buyer makes the following representations to the Seller:
a. The Buyer is a corporation organized, validly existing and in
good standing under the laws of the State of New York.
b. The execution and delivery of this Agreement and the
consummation of the
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transactions contemplated thereby have been authorized by the
Shareholders, if necessary, and the Board of Directors of the
Buyer.
7. CLOSING.
The closing of the transaction contemplated hereby (the "Closing" or
"Closing Date") shall take place on April 1, 1999 in the offices of the
attorneys for Buyer. All adjustments shall be made as of April 1, 1999.
At the Closing, Seller and the Buyer will deliver the following items
to each other:
a. Seller's Closing Items:
i. A general assignment and executed xxxx of sale and
other necessary documents of title in form reasonably
satisfactory to counsel for Buyer as shall be necessary
or expedient to transfer to Buyer the Assets.
ii. An opinion of counsel by counsel for the Seller opining
that upon execution and delivery, this Agreement, and
all ancillary agreements executed in connection
herewith, constitute legally valid and binding
obligations of the Seller and are enforceable against
each of them in accordance with the terms of such
agreements subject only to bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to
or affecting the enforcement of contractual rights
generally together with any and all other matters as
Buyer and/or Buyer's counsel may reasonably require.
b. The Buyer's Closing Items:
i. Payment of the Purchase Price, in the manner described
herein, including delivery of executed promissory notes.
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8. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.
The obligations of the Buyer hereunder are subject to the
fulfillment, at or prior to the Closing, of the following conditions:
a. All representations and warranties of the Seller contained
herein and in any exhibit, certificate, document or other instrument delivered
pursuant to the provisions hereof, or in connection with the transactions
contemplated hereby, shall be true on the Closing with the same force and
effect as though such representations and warranties had been made on the
Closing, except as otherwise contemplated by this Agreement.
b. The Seller shall have performed and complied with all of the
material terms, covenants and conditions of this Agreement to be performed or
complied with by it, on or before the Closing.
c. No action, suit or proceeding shall have been instituted or
threatened before any court or governmental body by any governmental agency or
body to restrain or prevent the carrying out of the transactions contemplated
hereby.
d. Seller shall have complied with the "Bulk Sale" laws of the
State of New York and shall have filed the requisite documents and instruments
with the appropriate governmental authorities to evidence such compliance.
9. CONDITIONS PRECEDENT TO OBLIGATION OF SELLER.
The obligations of the Seller under this Agreement are subject to the
fulfillment, on or before the Closing, of the following conditions:
a. All representations and warranties of the Buyer contained herein
and in any certificate or other instrument delivered by the Buyer pursuant to
the provisions hereof, or in
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connection with the transactions contemplated hereby, shall be true and correct
on the Closing with the same force and effect as though such representations
and warranties had been made on the Closing.
b. The Buyer shall have performed and complied with all of the
material terms, covenants and conditions of this Agreement to be performed or
complied with by it on or before the Closing Date.
10. INDEMNITY.
Seller agrees to indemnify and hold Buyer harmless against and in
respect of:
(a) any damage or deficiency resulting from any misrepresentation,
breach of warranty, tax deficiency or nonfulfillment of any agreement on the
part of Seller hereunder, or from any misrepresentation in or omission from any
schedule, certificate or other instrument furnished hereunder:
(b) any liability of Seller not expressly assumed by Buyer
hereunder;
(c) All actions, suits, proceedings, claims, demands, judgments,
assessments, costs and expenses, including reasonable attorneys' fees, incident
to any of the foregoing.
Buyer shall give Seller prompt written notice of any claim made against
it which, if valid, would give rise to a claim for indemnification under this
section and Seller may, at its option, employ counsel to defend against the
claim at Seller's own expense in the names of Seller or Buyer. Buyer will take
all necessary action to cooperate in all ways necessary to assist Seller in
such defense, provided same is without cost to Buyer. If Seller fails to
defend against any such claim, Buyer shall use its best efforts to defend or
minimize such claim, but the determination of Buyer in good faith as to the
handling thereof shall be final.
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If any claim which gives rise to a claim for indemnification under this
section shall result in a judgment, decree, injunction, award or lien against
Buyer, Seller shall upon demand satisfy, discharge or effectively stay the
enforcement of same until satisfied or discharged. To the extent that Buyer
incurs any liability, cost or expenses with respect to any claim for which it
is indemnified hereunder and provided that Buyer has given Seller the notice of
such claim as required by this section, and further provided that Seller is
not, in good faith, defending such claim, such liability, cost or expense may
be set-off by Buyer against any amounts owed by Seller by Buyer, without in any
manner limiting Buyer's right to seek any other remedy at law or in equity
against Seller. Notwithstanding the foregoing, Buyer may exercise its right
of set-off hereunder even though Seller is, in good faith, defending such
claim, if such claim shall result in a judgment, decree, injunction, award or
lien against Buyer and Seller has not satisfied, discharged or effectively
stayed the enforcement of same. The covenants contained in this section shall
survive the Closing.
11. SEVERABILITY.
The provisions of this Agreement shall be interpreted in such a manner
as to comply with all applicable laws to the fullest extent possible; but if,
notwithstanding such interpretation, any provision is determined to be illegal,
invalid, or unenforceable, the remaining provisions of this Agreement shall not
be affected, shall remain in full force, and shall continue to be binding upon
the parties.
12. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
All representations, warranties and agreements of Seller which are
contained herein which are not fully performed at or prior to the time of the
Closing shall survive the Closing.
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13. SALES TAX
Any and all obligations to pay sales and/or use tax arising out of this
transaction shall be those of the Buyer. The Buyer agrees to indemnify and hold
the Seller harmless against any loss, deficiency, interest or penalty arising
out of the Buyer's failure to fulfi1l its obligation to pay sales and/or use tax
in connection with this transaction.
14. BROKERAGE COMMISSION.
The parties hereto agree that no broker was involved in this transaction
and agree to mutually indemnify each other from any claims of brokers or
finders.
15. SUBORDINATION OF 1NTEREST.
Seller acknowledges that Buyer must obtain bank financing to consummate
the transactions contemplated hereunder. Seller agrees that they shall
subordinate any indebtedness owed to them by Buyer or the principals of Buyer to
the lien and interest of any commercial lender from whom Buyer acquires
financing to consummate this transaction.
16. HIRING OF PERSONNEL/SOLICITATION OF CLUSTER AGENTS.
From and after the date of the Closing, Buyer shall be free to hire any
personnel from the Commercial Lines division of Seller as Buyer may deem
advisable and may solicit any and all agents for purposes of placement of
insurance business as Buyer may deem advisable. Xxxxxxx Xxxx'x employment
agreement with Seller is terminated as of the closing date and Seller hereby
releases Xxxxxxx Xxxx from any and all obligations Xxxx may have under and
pursuant to any employment agreement Xxxx may have or had with Seller.
17. OFFICE EXPENSE.
As part consideration for the Purchase Price received by the Seller,
Seller shall provide to
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Buyer office space, use of a conference room, telephone service, postage (with
the exception of bulk mailing) and use of all of Seller's office equipment not
transferred to Buyer hereunder, office supplies, bookkeeper and a receptionist
for a period of twelve (12) months (the "Free Rent Period") following the date
hereof. Seller shall provide to Buyer a separate listing on the building
director at Seller's location. Buyer may continue the arrangement at its
election, for one year following the Free Rent Period at a fixed cost of
Eighteen Thousand and no/100 ($18,000.00) Dollars for such additional year, said
sum to be paid in twelve (12) equal installments, in advance, on the first day
of each month during such extended term.
18. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be settled by binding arbitration at Albany, New
York in accordance with the rules then obtaining of the American Arbitration
Association, and judgment upon the award rendered thereon may be entered in
any Court having jurisdiction thereof.
19. ANNOUNCEMENTS AND CONFIDENTIALITY.
Prior to or after the closing, no announcement shall be made respecting
this Agreement or any transaction contemplated herein unless approved by the
parties.
2O EXPENSES.
Each of the parties to this Agreement shall bear its or his own expenses
in connection with the transactions contemplated hereby.
21. NOTICES.
Any notice or other communication under this Agreement shall be in
writing and shall be deemed to have been duly given when sent by certified mail
addressed as follows:
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If to the Sel1er, to it at:
000 Xxxxxx Xx.
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Xxxxxxxx Xxxx XX 00000
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If to the Buyer, to it at:
000 Xxxxxx Xx.
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Xxxxxxxx Xxxx XX 00000
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or to such other address as either of the parties may designate by notice to the
other.
22. AGENT OF RECORD.
Seller will cooperate with the Buyer in the obtaining appointment as
agent of record for all insurance accounts or customers of Seller existing on
the date hereof and included herein.
23. BENEFIT.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their heirs, successors and assigns.
24. ENTIRE AGREEMENT.
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof and shall not be changed or terminated
orally.
25. NEW YORK LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first above written.
MEGA GROUP, INC.
BY: /s/ XXXXX XXXXXXX
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Name:
Title: President
GLOBAL UNDERWRITERS AGENCY, LNC.
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: President
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STATE OF NEW YORK )
)SS.:
COUNTY OF )
On the 27 day of April, 1999, before me, the undersigned. a notary
public in and for said state, personally appeared Xxxxx Xxxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to the
individual whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his capacity, and that by his signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
/s/ [SIG]
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Notary Public
STATE OF NEW YORK )
)SS.:
COUNTY OF SARATOGA )
On the 27 day of April, 1999, before me, the undersigned, a notary
public in and for said state, personally appeared Xxxxxxx Xxxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to the
individual whose name is subscribed to the within instrument and acknowledaed
to me that he executed the same in his capacity, and that by his signature on
the instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
/s/ [SIG]
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Notary Public
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EXHIBIT A
ASSETS
List of Furniture, Fixtures and Supplies
5 file cabinets -5 drawer $500.00
2 file cabinets -4 drawer 200.00
4 file cabinets -2 drawer 400.00
2 file cabinets -3 drawer 200.00
2 work stables 1,000.00
4 work stations 6,600.00
1 desk 800.00
1 credenza 300.00
10 chairs 600.00
1 bookshelf 300.00
misc. bins, file holders 100.00
1 rating computer 1,000.00
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12,000.00
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TO ALL TO WHOM THESE PRESENTS SHALL COME,
OR MAY CONCERN:
GREETING: KNOW YE, that MEGA GROUP, INC., a corporation organized and existing
under and by virtue of the laws of the State of New York, for and in
consideration of the sum of FIFTY THOUSAND AND XX/100 ($50,000.00) DOLLARS
lawful money of the United States of America to it in hand paid by GLOBAL
UNDERWRITERS AGENCY, INC., the receipt whereof is hereby acknowledged, has
remised, released, and forever discharged, and by these presents does for
itself, its successors and assigns, remise, release and forever discharge the
said GLOBAL UNDERWRITERS AGENCY, INC., its successors and assigns, of and from
all liability or claims for monies due and owing to the said MEGA GROUP, INC.
for and under a $100,000.00 promissory note dated on or about April 29,
1999.
IN WITNESS WHEREOF, the said MEGA GROUP, INC. has caused theses presents to be
signed by its duly authorized officer the ____ day of February in the year Two
Thousand.
MEGA GROUP, INC.
By: /s/ XXXXXX XXXXXXX
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XXXXXX X. XXXXXXX, President
STATE OF NEW YORK )
)SS.:
COUNTY OF SARATOGA )
On the 15th day of February, 2000, before me, the undersigned,
personally appeared XXXXX X. XXXXXXX, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
/s/ XXXXXX X. XXXXXXXX
---------------------------------
Notary Public, State of New York
XXXXXXX X. XXXXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
QUALIFIED IN RENSSELAER COUNTY
COMMISSION EXPIRES APRIL 30, 2000
