STOCK PURCHASE AGREEMENT
Exhibit 10.1
This STOCK PURCHASE AGREEMENT (the “Agreement”), dated as of the 31st day of August,
2006, is entered into by and among A.L.P. ACQUISITION CO., INC., an Ohio corporation (“Purchaser”),
and BANCINSURANCE CORPORATION, an Ohio corporation (“Seller”).
RECITALS
A. Seller is the owner and record holder of all of the issued and outstanding common shares of
American Legal Publishing Corporation, an Ohio corporation (the “Company”).
B. The Company is engaged in the business of publishing municipal codes and ordinances and in
providing various services related thereto (the “Business”).
C. Purchaser is a corporation formed to acquire the Company via a stock purchase transaction.
D. The Board of Directors of Seller has authorized, adopted and approved the sale of all of
the issued and outstanding shares of the Company to Purchaser.
E. Purchaser and Seller desire to make certain representations, warranties and agreements in
connection with the sale of the shares of the Company.
NOW, THEREFORE, in consideration of these premises, the mutual representations, warranties and
covenants contained herein and each act done pursuant thereto, the parties agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the meanings herein specified,
unless the context otherwise requires:
1.1 “Accessible Records” shall have the meaning given such term in Section 8.6 of this
Agreement.
1.2 “Affiliate” shall mean as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such Person and, if such
Person is an individual, any member of the immediate family
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(including parents, spouse, children and grandchildren) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such immediate family and any
Person who is controlled by any such member or trust. As used in this definition, “control”
(including, with its correlative meanings, “controlled by” and “under common
control with”) shall mean possession, directly or indirectly, of power to direct or influence
the direction of the management or policies (whether as a director, officer or employee, through
the ownership of securities or other ownership interests, by contract or otherwise).
1.3 “Affiliated Group” shall mean the affiliated group, within the meaning of Section
1504(a) of the Tax Code, filing consolidated federal income Tax Returns of which Seller is the
common parent.
1.4 “Agreement” shall mean this Agreement, together with all Exhibits and
Schedules referred to herein, as the same may be amended or supplemented at any time and
from time to time after the date hereof.
1.5 “Allocation” shall have the meaning given such term in Section 6.4 of this
Agreement.
1.6 “Business” shall have the meaning given such term in the Recitals to this
Agreement.
1.7 “Capital Leases” shall mean those leases properly included on a balance sheet of
the Company, prepared in accordance with GAAP, as an asset with a corresponding entry as a
liability.
1.8 “Cash Consideration” shall be an amount equal to Four Million One Hundred Fifty
Thousand Dollars ($4,150,000).
1.9 “Closing” shall have the meaning given such term in Section 2.2(a) of this
Agreement.
1.10 “Closing Certificate” shall mean a statement, certified by the Chief Financial
Officer of the Company, setting forth the estimated amount of the Net Income of the Company as of
the Closing Date.
1.11 “Closing Date” shall mean the date of this Agreement or such other date as shall
be mutually agreed upon by the parties.
1.12 “Company Employee Benefit Plan” shall have the meaning given such term in Section
3.10(a) of this Agreement.
1.13 “Competitive Business” shall have the meaning given such term in Section 6.1(e)
of this Agreement.
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1.14 “Covered Jurisdiction” shall have the meaning given such term in Section 3.6(a)
of this Agreement.
1.15 “Employee Benefit Plan” shall mean an employee welfare benefit plan or an
employee pension benefit plan, or a plan which is both, as those terms are defined in Section 3 of
ERISA.
1.16 “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended.
1.17 “Estimated Tax Liability” shall have the meaning given such term in Section 5.7
of this Agreement.
1.18 “Final Tax Liability” shall have the meaning given such term in Section 5.7 of
this Agreement.
1.19 “Financial Statements” shall mean the balance sheets of the Company for the years
ended December 31, 2003, 2004 and 2005, and the related statements of operations and retained
earnings and cash flows for the years then ended, together with the appropriate notes to such
financial statements audited by Seller’s Accountants.
1.20 “GAAP” shall mean United States generally accepted accounting principles
consistently applied, as interpreted by Seller and its outside accountant.
1.21 “Government” shall mean (or in the case of “Governmental” shall refer
to):
(a) the government of the United States of America or of any foreign country in which either
the Company conducts the Business;
(b) the government of any state, province, county, municipality, city, town or district of any
country described in the foregoing clause (a) of this Section 1.21; and
(c) any ministry, agency, department, authority, commission, administration, corporation,
court, magistrate, tribunal, arbitrator, instrumentality or political subdivision of any government
described in the foregoing clauses (a) and (b) of this
Section 1.21.
1.22 “Included Periods” shall mean all taxable periods ending on or prior to the
Closing Date during which the Company was a member of the Affiliated Group.
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1.23 “Indemnifiable Losses” and “Indemnifiable Loss” shall have the meaning given such
terms in Section 7.1(a) of this Agreement.
1.24 “Indemnity Cap” shall have the meaning given such term in Section 7.1(b) of this
Agreement.
1.25 “Knowledge”, “to the Knowledge of,” or phrases of similar import, with respect to
an individual, means such individual is actually aware of such fact or other matter. A Person
(other than an individual) will be deemed to have “Knowledge” of a particular fact or other matter
if any individual who is serving as a director or executive officer of such Person has Knowledge of
such fact or other matter. Notwithstanding anything to the contrary, the Knowledge of Xxxxxxx X.
Xxxx, who is serving as an executive officer of the Company, shall not be imputed to Seller.
1.26 “Law” shall mean any of the following of, or issued by, any Government or
Governmental agency, in effect on or prior to the date hereof: any statute, law, act, ordinance,
code, rule, or regulation or any writ, injunction, award, decree, judgment or order of any
Government or Governmental agency.
1.27 “Leased Real Estate” shall have the meaning given such term in Section 3.7 of
this Agreement.
1.28 “Lien” or “Liens” shall mean any lien, encroachment, easement,
encumbrance, mortgage, hypothecation, pledge, conditional sales contract, equity charge, or other
similar conflicting ownership or security interest in favor of any party.
1.29 “Net Income” shall mean the net after-Tax income of the Company from April 1,
2006 to the Closing Date.
1.30 “Note” shall mean the promissory note issued by Purchaser and the Company to
Seller in payment of a portion of the Purchase Price in accordance with Section 2.2(c)(ii) of this
Agreement.
1.31 “Note Consideration” shall be an amount equal to the Purchase Price less the Cash
Consideration.
1.32 “Notice” shall have the meaning given such term in Section 8.2 of this Agreement.
1.33 “Notice Party” shall have the meaning given such term in Section 8.2 of this
Agreement.
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1.35 “Person” shall mean any corporation, partnership, limited liability company,
limited liability partnership, joint venture, trust, unincorporated association or organization,
business, enterprise, or other entity; any individual; and any Governmental subdivision or agency.
1.36 “Purchase Price” shall mean the sum of Four Million Five Hundred Thousand Dollars
($4,500,000.00) plus the Net Income of the Company.
1.37 “Purchaser Party” or “Purchaser Parties” shall have the meaning given such terms
in Section 7.1(a) of this Agreement.
1.38 “Purchaser’s Opinion” shall have the meaning given such term in Section
2.2(c)(iii) of this Agreement
1.39 “Restricted Period” shall have the meaning given such term in Section 6.1(e) of
this Agreement.
1.40 “Seller Employee Benefit Plan” shall have the meaning given such term in Section
3.10(a) of this Agreement.
1.41 “Seller Tax Liability” shall have the meaning given such term in Section 5.7 of
this Agreement.
1.42 “Seller’s Opinion” shall have the meaning given such term in Section 2.2(b)(iii)
of this Agreement
1.43 “Seller’s Accountants” shall mean Skoda, Xxxxxxx & Co., certified public
accountants.
1.44 “Shares” shall have the meaning given such term in Section 3.1(b) of this
Agreement.
1.45 “Straddle Period” shall have the meaning given such term in Section 5.1(b) of
this Agreement.
1.46 “Straddle Returns” shall have the meaning given such term in Section 5.1(b) of
this Agreement.
1.47 “Subsidiary” or “Subsidiaries” shall mean each corporation, partnership, joint
venture, limited liability company or other entity in which the Company owns, directly or
indirectly, 50% or more of the outstanding voting securities or equity interests of any class.
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1.48 “Tax” or “Taxes” shall mean all taxes, interest, penalties, assessments or
deficiencies imposed by or due to any Governmental taxing authority.
1.49 “Tax Code” shall mean the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
1.50 “Tax Contest” shall have the meaning given such term in Section 7.3(b) of this
Agreement.
1.51 “Tax Package” shall have the meaning given such term in Section 5.5 of this
Agreement.
1.52 “Tax Returns” shall mean material separate and/or consolidated unitary and
combined federal, state, county, local and foreign income, excise, withholding, payroll, property,
sales, use, franchise and other material Tax returns and related information.
1.53 “Territory” shall have the meaning given such term in Section 6.1(e) of this
Agreement.
ARTICLE 2
SALE OF SHARES
SALE OF SHARES
2.1 Sale of Shares of the Company. Subject to the terms and conditions of this
Agreement, Purchaser shall purchase and Seller shall sell the Shares at the Closing on the Closing
Date for consideration in an amount equal to the Purchase Price.
2.2 Closing.
(a) The Closing. The consummation of the transactions contemplated by this Agreement
shall be closed on the Closing Date at the law offices of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, 00
Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000, or such other place as shall be mutually agreed upon by the
parties (the “Closing”).
(b) Deliveries by Seller. At or prior to the Closing, Seller shall deliver, or cause
to be delivered, to Purchaser the following:
(i) valid stock certificates representing all of the Shares properly endorsed (or with an
executed assignment separate from share certificate) for transfer to Purchaser;
(ii) the Closing Certificate duly certified by the Chief
Financial Officer of the Company;
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(iii) an opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel for Seller, dated the Closing
Date, addressed to Purchaser, and substantially in the form attached hereto as Exhibit B
(“Seller’s Opinion”);
(iv) a certificate of good standing of the Company, dated no more than ten (10) days prior to
the Closing Date, issued by the Ohio Secretary of State;
(v) a copy of the articles of incorporation of the Company duly certified by the Ohio
Secretary of State no more than ten (10) days prior to the Closing Date;
(vi) a certificate from the Secretary or the Assistant Secretary of Seller, dated the Closing
Date, which certifies (a) the resolutions duly adopted by Seller authorizing and approving the
execution, delivery and performance of this Agreement, and (b) that such resolutions have not been
rescinded or modified and remain in full force and effect as of the Closing Date; and
(vii) the original minute books and stock ledgers of the Company.
(c) Deliveries by Purchaser. At or prior to the Closing, Purchaser shall deliver to
Seller the following:
(i) the Cash Consideration in immediately available funds by wire transfer to such accounts as
Seller shall designate in writing to Purchaser at least two (2) days prior to the Closing Date;
(ii) the Note Consideration by delivery of the Note in the form of Exhibit A attached
hereto;
(iii) an opinion of Xxxxxxxxx & Dreidame Co., L.P.A., counsel for Purchaser, dated the Closing
Date, addressed to Seller in substantially the form attached hereto as Exhibit C
(“Purchaser’s Opinion”);
(iv) a certificate of good standing of Purchaser, dated no more than ten (10) days prior to
the Closing Date, issued by the Ohio Secretary of State; and
(v) a certificate from the Secretary or Assistant Secretary of Purchaser, dated the Closing
Date, which certifies (a) the resolutions duly
adopted by the Board of Directors of Purchaser authorizing and approving the
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execution, delivery and performance of this Agreement, and (b) that such resolutions have not been
rescinded or modified and remain in full force and effect as of the Closing Date.
2.5 Further Assurances. From time to time after the Closing, the Seller shall
execute and deliver, or cause to be executed and delivered, to the Purchaser such other instruments
of conveyance and transfer as to the Shares as the Purchaser may reasonably request.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Purchaser to enter into this Agreement and to consummate the transactions
contemplated hereby, Seller represents and warrants to Purchaser, and Purchaser in agreeing to pay
the Purchase Price and to otherwise consummate the transactions contemplated by this Agreement has
relied upon such representations and warranties, that, except as set forth in certain
“Schedules” which are referred to herein and which have previously been delivered by Seller
to Purchaser:
3.1 Organization and Capital Structure of the Company.
(a) The Company is a corporation duly organized, validly existing and in good standing under
the laws of the State of Ohio. The Company has the full corporate power and authority under
Chapter 1701 of the Ohio Revised Code and its Articles of Incorporation to own or lease and to
operate and use its properties and to carry on its business as now conducted.
(b) The authorized capital stock of the Company consists of seven hundred fifty (750)
authorized shares of common stock, no par value, of which one hundred (100) shares are issued and
outstanding as of the date of this Agreement (the “Shares”) and are owned, of record and
beneficially, by Seller. All of the Shares have been duly and validly issued and are fully paid
and non-assessable. No other shares of the capital stock of the Company are issued or outstanding.
There are no agreements, arrangements, options, preemptive rights, warrants, calls, rights or
commitments of any character relating to the issuance, sale, purchase or redemption of any shares
of capital stock of the Company. True and complete copies of the articles of incorporation, and all
restatements and amendments thereto, and of the code of regulations, as amended to date, for the
Company have been previously delivered to Purchaser.
(c) The Company has no Subsidiaries and does not own an equity interest in any corporation,
partnership, joint venture or other entity. Seller
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does not own, directly or indirectly, any equity
interest in any entity which is engaged in a business similar to the Business.
3.2 Authorization.
(a) Seller has full power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby and to comply with the terms, conditions and provisions hereof.
All necessary corporate action on the part of Seller has been taken to authorize the execution and
delivery of this Agreement, the performance of its obligations hereunder and the consummation of
the transactions contemplated hereby. This Agreement has been duly and validly executed and
delivered by Seller, and constitutes a valid and binding agreement, enforceable against Seller in
accordance with its terms.
(b) The execution, delivery and performance of this Agreement by Seller, the consummation of
the transactions contemplated hereby and the compliance with or fulfillment of the terms and
provisions hereof or of any other agreement or instrument contemplated hereby, do not and will not
(i) conflict with or result in a breach of any of the provisions of the articles of incorporation
or the code of regulations of Seller or the Company, (ii) contravene any Law which affects or binds
Seller, the Company or any of their respective properties, (iii) except as set forth in
Schedule 3.2, to the Knowledge of Seller, conflict with, result in a breach of, constitute
a default under, or give rise to a right of termination or acceleration under any contract,
agreement, note, deed of trust, mortgage, trust, lease, Governmental or other license, permit or
other authorization, or any other instrument or restriction to which the Company or Seller is a
party or by which any of their respective properties may be affected or bound, or (iv) to the
Knowledge of Seller, require the Company or Seller to obtain the approval, consent or authorization
of, or to make any declaration, filing or registration with, any third party or any Governmental
authority which has not been obtained in writing prior to the date of this Agreement.
3.3 Financial Statements.
(a) Seller has furnished Purchaser with complete and accurate copies of the Financial
Statements. The Financial Statements (i) present fairly in all material respects the financial
position and results of operations of the Company as of the statement dates and for the periods
indicated, and (ii) have been prepared in accordance with GAAP consistently applied throughout and
among the periods indicated.
(b) All properties utilized in the operation of the Business as of the statement dates have
been reflected on the applicable Financial Statements in the manner and to the extent required by
GAAP. Except as set forth in Schedule 3.3, to
the Knowledge of Seller, the Company is not subject to any material liability (including, without
limitation, unasserted claims), whether absolute or contingent, accrued or otherwise, which is not
shown or which is in excess of amounts shown or
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reserved for in the balance sheet of the Company
for the year ended December 31, 2005, together with the notes thereto, included in the Financial
Statements, other than liabilities which have been incurred after December 31, 2005 in the ordinary
course of business.
3.4 Absence of Certain Changes or Events. Except as set forth in Schedule
3.4, since December 31, 2005, there has not been any (a) change in accounting methods,
principles or practices (including, without limitation, any change in depreciation or amortization
policies or rates) of the Company; (b) declaration, setting aside or payment of a dividend or other
distribution in respect of the capital stock of the Company, or any direct or indirect redemption,
purchase or other acquisition by the Company of any of its capital stock or shares, except for the
distribution by the Company to Seller of amounts necessary to satisfy federal, state and local Tax
obligations; (c) issuance or sale by the Company of any shares, stock, bonds or other corporate
securities or any grant of any option, warrant or other right to subscribe for or to purchase any
of its capital stock or shares; (d) action taken by the Company that has resulted or will result in
it becoming a party to any joint venture, limited liability company, consortium or partnership
arrangement or agreement; or (e) payment by the Company to Seller or any of its Affiliates of any
fees, salaries or bonuses, except for the payment of certain management fees by the Company to
Seller.
3.5 Debt for Borrowed Money. Except as set forth in Schedule 3.5, there are
no (a) contracts, agreements or instruments pursuant to which the Company is indebted or liable to
any Person for borrowed money or for the deferred purchase price of any property in excess of Ten
Thousand Dollars ($10,000), (b) Capital Leases pursuant to which the Company leases real or
personal property which provide for annual payments in excess of Ten Thousand Dollars ($10,000),
(c) mortgages, security agreements or pledge agreements to which the Company is a party or by which
it or any of its properties are subject or encumbered, or (d) prepayment premium or penalty
payments which shall be due with respect to the payment of any indebtedness of the Company which
may be paid at Closing, if any, prior to its maturity date. True and complete copies of all
contracts, agreements and instruments set forth in Schedule 3.5 have been delivered to
Purchaser.
3.6 Tax Matters.
(a) Notwithstanding anything in this Agreement to the contrary:
(i) Tax Returns have been filed by or on behalf of the Company (and the Affiliated Group, with
respect to Included Periods), in the jurisdictions set forth on Schedule 3.6(a) (each, a “Covered Jurisdiction”); and
(ii) Seller is making no representations or warranties to Purchaser regarding the obligation
of the Company or the Affiliated Group to file Tax
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Returns in, or pay Taxes to, Governmental
authorities other than Covered Jurisdictions.
(b) All Tax Returns required to be filed in a Covered Jurisdiction on or before the date
hereof by or on behalf of the Affiliated Group for Included Periods have been prepared and filed in
accordance with GAAP and with applicable Law and all material Taxes thereon which are due have been
paid in full by Seller. All Tax Returns filed by the Company in a Covered Jurisdiction (or by
Seller on behalf of the Affiliated Group for an Included Period in a Covered Jurisdiction) are
true, complete, and correct in all material respects. Seller has delivered to Purchaser true and
complete copies of all Tax Returns referred to in the preceding sentences of this Section 3.6
(including any amendments thereof) for the three (3) most recent taxable years. All monies required
to be collected or withheld by Seller on behalf of the Affiliated Group for an Included Period in a
Covered Jurisdiction for income Taxes, social security and other payroll Taxes have been collected
or withheld, and either paid to the appropriate Governmental agencies, set aside in accounts for
such purpose, or accrued, reserved against and entered upon the books of Seller and its
Subsidiaries and Seller and its Subsidiaries are not or will not become liable for any material
Taxes for failure to comply with any of the foregoing with respect to a Covered Jurisdiction.
Except as set forth in Schedule 3.6(b), no material deficiencies for Taxes have been
claimed, proposed or assessed against the Affiliated Group with respect to an Included Period by a
Covered Jurisdiction, and no such federal, state, county, local or foreign return for Taxes has
been audited or examined by any taxing or other Governmental authority during the three-year period
prior to the date hereof. Seller shall promptly notify Purchaser if it shall receive any notice of
claim, penalty or assessment involving the Company for any Tax Return filed by Seller and including
the Company as part of its consolidated group. Any Tax Return required to be filed by the Company
(or by Seller on behalf of the Affiliated Group) after the date of this Agreement in a Covered
Jurisdiction for taxable periods ending on or prior to the Closing Date shall be true, complete and
correct in all material respects and will be prepared in accordance with GAAP and applicable Law
and Taxes thereon which are due or may thereafter become due pursuant to such return or pursuant to
such assessment, subject to any extension granted for the filing of any return or for the payment
of any Tax, interest, penalty, assessment or deficiency shall be paid in full by Seller. Seller
shall cooperate and assist Purchaser and/or the Company in the preparation and filing of Tax
Returns for periods subsequent to the Closing Date by providing Purchaser with any reasonably
requested books and records or other information relating to the financial results and Tax
liability of the Company for periods prior to the Closing Date.
(c) Except as set forth in Schedule 3.6(c), there is no audit, investigation, claim or
assessment pending or, to the Knowledge of Seller, threatened
against any member of the Affiliated Group by a Covered Jurisdiction for any alleged deficiency in
any Tax. Except as set forth in Schedule 3.6(c), there are no waivers or extensions of
statutory periods of limitation of a Covered Jurisdiction in effect with respect to any Taxes of
the Affiliated Group. There are no tax
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sharing agreements that require the payment by the Company
of any Taxes after the Closing Date. There are no material Tax liens against the assets of Seller
and its Subsidiaries except for Liens for Taxes not yet delinquent or the validity of which are
being contested in good faith by appropriate actions and which are described in Schedule
3.6(c).
(d) Seller has disclosed on each federal income Tax Return of the Affiliated Group for
Included Periods in the Covered Jurisdictions all material positions taken therein that could give
rise to a substantial understatement of federal income Tax within the meaning of Section 6662 of
the Tax Code.
(e) All material deductions taken on the Tax Returns of the Affiliated Group for Included
Periods in Covered Jurisdictions have been properly deducted by the Affiliated Group in all
material respects pursuant to pertinent provisions of the Tax Code.
(f) The Company has been a “C corporation” for federal and state income Tax purposes since it
was acquired by Seller in 1999. The Company has been included in the consolidated Tax Return of
the Affiliated Group for each year commencing upon its acquisition by Seller in 1999.
3.7 Real Property. The Company does not own any real property. All real property
(including, without limitation, all interests in and rights to real property) and improvements
located thereon which are leased (the “Leased Real Estate”) by the Company are identified in
Schedule 3.7. A true and complete copy of each lease for the Leased Real Estate has been
previously delivered to Purchaser.
3.8 Litigation; Claims. Except as set forth in Schedule 3.8, to the Knowledge
of Seller, there are no (a) claims, actions, suits, proceedings or investigations pending or
threatened by or against the Company, nor (b) any judgments, decrees, arbitration awards,
agreements or orders binding upon the Company. To the Knowledge of Seller, there are no lawsuits
or proceedings pending in which the Company is the plaintiff or claimant.
3.9 Intercompany/Affiliate Transactions. Schedule 3.9 sets forth (a) a list
of each oral or written contract or agreement between the Company, on the one hand, and Seller or
any officer or director of the
Company or Seller, on the other hand; and (b) a general description of all such transactions since
December 31, 2005 that are not disclosed in the Financial Statements.
3.10 Employee Relations Matters.
(a) Employee Agreements. Schedule 3.10(a)(i) sets forth a list of
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each employee pension, profit sharing, stock option, bonus, incentive, stock purchase, deferred
compensation, welfare, life insurance, hospital or medical benefit plan, cafeteria plan, disability
income plan or any other Employee Benefit Plan contributed to, sponsored by or maintained by the
Company for its employees. Each Employee Benefit Plan listed in Schedule 3.10(a)(i) that is
sponsored or maintained by Seller or any of its affiliates other than the Company is hereinafter
referred to as a “Seller Employee Benefit Plan” and each Employee Benefit Plan listed in Schedule
3.10(a)(i) that is sponsored or maintained by the Company is hereinafter referred to as a “Company
Employee Benefit Plan.” Except as set forth in Schedule 3.10(a)(ii) or as required by
applicable law, to the Knowledge of Seller, the Company has no obligation to provide or contribute
to the cost of life insurance, health insurance, Medicare Supplement insurance or any other welfare
benefit to or on behalf of retirees or former employees of the Company.
(b) ERISA Compliance.
(i) Except as set forth in Schedule 3.10(b)(i), no Company Employee Benefit Plan is a
“multiemployer employee pension benefit plan” (within the meaning of either Section 3(37)(A) or
Section 4001(a)(3) of ERISA) or an “employee benefit pension plan” (as defined in Section 3(2) of
ERISA) that is subject to the minimum funding standards of Section 412 of the Tax Code or Section
302 or Title IV of ERISA, and neither the Company nor Seller has or has had any liabilities under
Title IV of ERISA that remain unsatisfied.
(ii) Each Seller Employee Benefit Plan and, to the Knowledge of Seller, each Company Employee
Benefit Plan has been operated in all material respects in accordance with its terms and applicable
Law. Each trust forming a part of any such Seller Employee Benefit Plan and, to the Knowledge of
Seller, any such Company Employee Benefit Plan meets all requirements for qualifications under
Sections 401 and 501 of the Tax Code, and all applicable related rules and final regulations.
(iii) Except as set forth in Schedule 3.10(b)(iii), to the Knowledge of Seller, the
Company has not taken any action to terminate any Company Employee Benefit Plan.
(iv) Except as set forth in Schedule 3.10(b)(iv), each
Company Employee Benefit Plan that is intended to be qualified within the meaning of Section
401(a) of the Tax Code has received a favorable letter of determination with respect to its
qualified status and, to the Knowledge of Seller, the IRS has not revoked any prior favorable
determination letter, refused to rule on an application for a determination or opinion letter or
otherwise proposed or threatened to revoke any determination letter or to deny the qualified status
of any such Company Employee Benefit Plan.
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(v) All accrued contribution obligations of the Company with respect to any Company Employee
Benefit Plan that is an “employee pension benefit plan” (as defined in Section 3(3) of ERISA) have
either been paid in full or are fully reflected on the Financial Statements. All contributions
required under the provisions of any Company Employee Benefit Plan that is an employee pension
benefit plan have been accrued on the Financial Statements or paid for all hours worked through
December 31, 2005, and as of the Closing Date, all such contributions for all hours worked through
the Closing Date will have been accrued on the Company’s current fiscal period financial statements
or paid at the previous year’s actuarial rate.
(vi) To the Knowledge of Seller, with respect to any Company Employee Benefit Plan, the
Company has not engaged in any transaction, and no condition has occurred or exists, which could
subject the Company or any Company Employee Benefit Plan or agent of any of the above to any civil
penalty assessed pursuant to Title I or Section 502(i) of ERISA, to the penalty or excise Tax
provisions of the Tax Code relating to employee benefit plans or to any Tax imposed by Section 4975
of the Tax Code.
(vii) To the Knowledge of Seller, there is no audit or investigation in progress by the
Department of Labor, the PBGC, the IRS or any other Governmental agency of any Company Employee
Benefit Plan, nor has the Company received notice that any such audit or investigation will or may
be conducted.
(viii) To the Knowledge of Seller, no action, claim or demand of any kind (other than routine
claims for benefits in the ordinary course) is pending or threatened by any potential claimant or
representative of such claimant under any Company Employee Benefit Plan pursuant to which the
Company can be (A) liable directly on such action, claim or demand, (B) liable over to another
party in connection with such action, claim or demand, or (C) obligated to indemnify any person,
group of persons or entity with respect to such action, claim or demand.
(ix) To the Knowledge of Seller, the Company has filed or caused to be filed on a timely
basis, every return, report, statement, notice,
declaration and other document required by any Governmental agency or authority (including,
without limitation, the Internal Revenue Service, the Department of Labor and the Pension Benefit
Guaranty Corporation), with respect to each Company Employee Benefit Plan. Subject to any
extension duly granted for the filing of any disclosure, summary plan description, summary annual
report, accounting or other form, documentation or information or for the payment of any amount,
interest, penalty, assessment or deficiency, to the Knowledge of Seller, the Company is in material
compliance with all requirements for disclosures to employees of the
14
Company and their
beneficiaries under ERISA, including, without limitation, timely distribution of summary plan
descriptions and summary annual reports.
3.11 Books and Records. To the Knowledge of Seller, the Company keeps and maintains
books, accounts and records which accurately account for and reflect the assets, properties,
liabilities, obligations, affairs and results of the conduct and operation of the Business. The
minute books of the Company contain a true and complete record of all meetings and consents of
Seller and the Board of Directors of the Company, and of the issuance of the issued and outstanding
capital stock of the Company. True and complete copies of minutes of meetings of the shareholders
and directors of the Company have been previously delivered to Purchaser.
3.12 Other Disclosures. Schedule 3.12 sets forth the name and address of each
bank in which the Company has an account or safe deposit box and the name of each Person authorized
to draw thereon or have access thereto.
3.13 Securities Law Acknowledgments. Seller acknowledges the following:
(a) Seller understands that the Note to be received by it has not been, and will not be,
registered under the Securities Act of 1933, as amended (the “Act”) or any state securities Law in
reliance on an exemption therefrom for non-public offerings and further understands that such Note
has not been approved or disapproved by the United States Securities and Exchange Commission, or
any other federal or state agency.
(b) The Note to be received by Seller shall bear a legend substantially to the following
effect:
“This Promissory Note (“Note”) was acquired for investment only and not
for resale. This Note has not been registered under the Securities Act of
1933, as amended, or any state securities law. This Note may not be sold,
transferred, pledged or hypothecated unless first registered under such
laws, or unless the Makers have received an opinion of counsel
satisfactory to the Makers that registration under such laws is not
required.”
(c) Seller is acquiring the Note as contemplated by this Agreement for its own account, for
investment purposes only, and not with a view to the sale or other distribution thereof, in whole
or in part, and is aware that there are substantial restrictions on the transferability of such
Note.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement and to consummate
15
the transactions
contemplated hereby, Purchaser represents and warrants to Seller, and Seller in agreeing to
consummate the transactions contemplated by this Agreement has relied upon such representations and
warranties, that, except as set forth in certain “Schedules” which are referred to herein
and which have previously been delivered by Purchaser to Seller:
4.1 Organization. Purchaser is a corporation duly organized and validly existing
under the laws of the State of Ohio.
4.2 Authorization.
(a) Purchaser has the corporate power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to comply with the terms, conditions and
provisions hereof. The execution, delivery and performance of this Agreement has been duly
authorized and approved by all requisite corporate action on the part of Purchaser and do not
require any further authorization or consent. This Agreement is the legal, valid and binding
agreement of Purchaser and is enforceable against Purchaser in accordance with its terms.
(b) The execution, delivery and performance of this Agreement by Purchaser, the consummation
of the transactions contemplated thereby and the compliance with or fulfillment of the terms and
provisions hereof or of any other agreement or instrument contemplated hereby, do not and will not
(i) conflict with or result in a breach of any of the provisions of the articles of incorporation
or the code of regulations of Purchaser, (ii) contravene any Law which affects or binds Purchaser
or any of its properties, (iii) conflict with, result in a breach of, constitute a default under,
or give rise to a right of termination or acceleration under any contract, agreement, note, deed of
trust, mortgage, trust, lease, Governmental or other license, permit or other authorization, or any
other instrument or restriction to which Purchaser is a party or by which any of its properties may
be affected or bound, or (iv) require Purchaser to obtain the approval, consent or authorization
of, or to make any declaration, filing or registration with, any third party or any Governmental
authority which has not been obtained in writing prior to the date of this Agreement.
4.3 Knowledge of Basis for Claims and Waiver. Neither Purchaser nor Xxxxxxx X. Xxxx
Knows or has Known of any facts or circumstances that would serve as the basis for a claim by
Purchaser against Seller based upon a breach of any of the representations and warranties of Seller
contained in this Agreement or a breach of any of Seller’s covenants or agreements to be performed
at or prior to Closing. Purchaser shall be deemed to have waived in full any breach of Seller’s
representations and warranties and any such covenants and agreements based on any facts or
circumstances of which Purchaser or Xxxxxxx X. Xxxx has or had Knowledge prior to Closing.
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ARTICLE 5
TAX MATTERS
TAX MATTERS
5.1 Preparation of Tax Returns and Payment of Taxes.
(a) Seller shall prepare (or cause to be prepared) and timely file all Tax Returns of the
Company with respect to any taxable period that ends on or prior to the Closing Date that are
required to be filed with any Governmental authority in a Covered Jurisdiction after the Closing
Date, and shall pay (or cause to be paid) any Taxes due in respect of such Tax Returns.
(b) Purchaser shall prepare (or cause to be prepared) and file or cause to be filed when due
all Tax Returns that are required to be filed by or with respect to the Company on a separate basis
for taxable years or periods ending after the Closing Date and shall remit any Taxes due in respect
of such Tax Returns. With respect to Tax Returns that are required to be filed by or with respect
to the Company for Straddle Periods (“Straddle Returns”), such Straddle Returns shall be prepared
in a manner consistent with past practice (unless otherwise required by Law), and Purchaser shall
be responsible for all of the Taxes due in respect of such Straddle Returns. For purposes of this
Agreement, a “Straddle Period” is any taxable period that begins before and ends after the Closing
Date.
(c) Neither Purchaser nor any of its Affiliates shall (or shall cause or permit the Company
to) amend, refile or otherwise modify any Tax Return relating in whole or in part to the Company
with respect to any taxable period (or portion thereof) ending on or prior to the Closing Date
without the written consent of Seller, which consent may be withheld in the sole discretion of
Seller.
5.2 Refunds.
(a) Seller will be entitled to any credits and refunds (including interest received thereon)
in respect of any taxable period ending on or prior to the
Closing Date. Purchaser shall cause such refund to be paid to Seller promptly following its
receipt.
(b) Except as provided in Section 5.2(a), the Company will be entitled to any refunds
(including any interest received thereon) in respect of any federal, state, local or foreign Tax
liability of the Company (including, without limitation, any refund relating to a Straddle Period).
5.3 Tax Treatment of Indemnity Payments. It is the intention of the parties to treat
any indemnity payment made under this Agreement (including any payment made pursuant to the last
sentence of Section 5.7 hereof) as an adjustment to the
17
Purchase Price for all federal, state,
local and foreign Tax purposes, and the parties agree to file their Tax Returns accordingly.
5.4 Conveyance Taxes. Purchaser agrees to pay all sales, use, value added, transfer,
stamp, registration, documentary, excise, real property transfer or gains, or similar Taxes
incurred as a result of the transactions contemplated in this Agreement and Seller and Purchaser
agree to jointly file all required change of ownership and similar statements.
5.5 Information to be Provided by Purchaser. With respect to any taxable year of the
Company for which Seller is required to file a Tax Return pursuant to Section 5.1 and for the
taxable period prior to the Closing Date in any taxable year of the Company in which the Closing
occurs, Purchaser shall promptly cause the Company to prepare and provide to Seller a package of
Tax information materials (the “Tax Package”), which shall be completed in accordance with the past
practice of the Company including past practice as to providing the information, schedules and work
papers and as to the method of computation of separate taxable income or other relevant measure of
income. Purchaser shall cause the Tax Package for the portion of the taxable period ending on the
Closing Date to be delivered to Seller within 120 days after the Closing Date.
5.6 Tax Elections. Purchaser shall not, without the prior consent of Seller (which
may, in its sole and absolute discretion, withhold such consent), make, or cause to permit to be
made, any Tax election, or adopt or change any method of accounting, or undertake any other
extraordinary action on the Closing Date, that would affect Seller or the Company prior to the
Closing Date.
5.7 Tax Distribution. Prior to the Closing Date, Seller caused the Company to
distribute to Seller an amount equal to Seller’s good faith estimate (“Estimated Tax Liability”) of
the aggregate Tax liability of the Company (computed as if the Company were a stand alone entity)
for taxable periods, or portions thereof, ending on the Closing Date (excluding Tax liabilities of
the Company relating to a Straddle Period with respect to which the Company is required to file a
Tax Return on a separate basis, if any, and Tax liability of the Company that is the direct result
of the election under Section 338(h)(10) of the Tax Code described in Section 6.4 hereof) (the
“Seller Tax Liability”).
Promptly after the date that federal, state, and local Tax Returns filed for, or with respect
to, the Company for the taxable period, or portion thereof, ending on the Closing Date, are filed
by Seller, Seller shall provide Purchaser with a final calculation of the Seller Tax Liability
(“Final Tax Liability”). An amount equal to the difference between the Estimated Tax Liability and
the Final Tax Liability shall be promptly (i) paid by Seller to Purchaser, in the event that such
Estimated Tax Liability exceeds such Final Tax Liability, and (ii) paid by Purchaser to Seller, in
the event that such Final Tax Liability exceeds such Estimated Tax Liability.
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ARTICLE 6
POST-CLOSING COVENANTS
POST-CLOSING COVENANTS
6.1 Seller Restrictive Covenants.
(a) In furtherance of the sale of the Shares and in order to protect the value of the
Business, Seller on its own behalf and on behalf of each of its Affiliates, hereby acknowledges and
agrees that the covenants given in this Section 6.1 are in consideration of the execution of this
Agreement, and that it will benefit from the consideration paid to it under this Agreement for its
interest in the Company. Seller hereby agrees that during the Restricted Period, it and each of its
Affiliates (whether now existing or hereafter acquired or created) will not, directly or
indirectly, individually or on behalf of any third party, as an employer, proprietor, partner,
stockholder, investor, director, consultant, agent or otherwise own, manage, operate, develop,
participate in, perform services for, provide financial assistance to or otherwise carry on any
Competitive Business in the Territory. Notwithstanding the provisions of this Section 6.1(a), the
ownership of securities of any Person traded on any national securities exchange or market
representing not more than five percent (5%) of the issued and outstanding amount of such
securities shall not constitute a breach of this Section 6.1(a).
(b) In furtherance of the sale of the Shares and in order to protect the value of the
Business, Seller hereby also agrees that during the Restricted Period, it and each of its
Affiliates (whether now existing or hereafter acquired or created) will not, directly or
indirectly, solicit, induce or influence any customer, supplier, lessor or any other person which
has a business relationship with the Company, or which had on the date of this Agreement or during
the Restricted Period a contract, commitment or proposal with the Company to discontinue such
contract, commitment or proposal with the Company.
(c) In furtherance of the sale of the Shares and in order to protect
the value of the Business, Seller hereby also agrees that during the Restricted Period, it and
each of its Affiliates (whether now existing or hereafter acquired or created) will not: (i)
directly or indirectly, recruit, solicit or otherwise induce or influence any employee or sales
agent of the Company to discontinue such employment, agency or other relationship with the Company,
or (ii) employ or seek to employ, or cause any Competitive Business to employ or seek to employ any
person who is then (or was at any time within six (6) months prior to the date he or the
Competitive Business employs or seeks to employ such person) employed by the Company as an
employee.
(d) Without limiting the right of the Company to pursue all other legal and equitable rights
available to it for any violation of this Section 6.1 and to
19
recover its legal fees and expenses,
the parties agree that monetary damages cannot fully compensate either of them for such a violation
and that they shall be entitled to injunctive relief to prevent violation or continuing violation
thereof and that no bond or other security shall be required in connection therewith. It is the
intent and understanding of each party hereto that if, in any action before any court or agency
legally empowered to enforce this Section 6.1, any term, restriction, covenant or promise is found
to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or
promise shall be deemed modified to the minimum extent necessary to make it enforceable by such
court or agency. Nothing herein shall be construed as prohibiting any party from pursuing any other
remedies at law or in equity which it may have.
(e) As used in this Section 6.1, the following terms shall have the following meanings: (i)
“Restricted Period” shall mean the period commencing on the Closing Date and expiring five (5)
years after the Closing Date; (ii) “Competitive Business” shall mean any activity, person or entity
which manufactures, markets, sells, distributes or develops or is planning to manufacture, market,
sell, distribute or develop any product that is or can be used in competition with the Business;
(iii) “Territory” shall mean the United States of America.
6.2 Release. Simultaneously with the Closing, (a) Seller shall release the Company
from any and all claims, demands and rights (other than any arising under the terms of this
Agreement) which Seller has against the Company, (b) the Company shall release Seller from any and
all claims, demands and rights (other than any arising under the terms of this Agreement) which the
Company has against Seller, and (c) Seller and the Company shall terminate all agreements and
contracts between them. Such releases and such termination shall be accomplished in a manner
mutually satisfactory to Purchaser and Seller.
6.3 Final Determination of Net Income. Within thirty (30) days after the Closing
Date, Seller shall provide Purchaser with a final calculation of the Net Income of the Company.
Purchaser shall have fifteen (15) days thereafter to review such calculation and notify Seller that
it disputes such calculation, and if no
such notice is given within such period then such calculation shall be deemed final and conclusive.
If Purchaser gives such notice of dispute within such period, Purchaser and Seller shall select an
independent public accounting firm to calculate and verify the Net Income, which determination
shall be final and conclusive. The costs and fees of such independent public accounting firm shall
be divided equally by the parties. If the final calculation of the Net Income is greater than the
amount of the Net Income set forth on the Closing Certificate, then the amount of such difference
shall be paid by Purchaser to Seller not later than thirty (30) days after the calculation of the
Net Income has become final and conclusive. If the final calculation of the Net Income is less
than the amount of the Net Income set forth on the Closing Certificate, then the amount of such
difference shall be applied by Seller to the Note.
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6.4 Election Under Tax Code Section 338(h)(10) and Allocation of Purchase Price.
Within the time limits prescribed by the Tax Code, Purchaser and Seller shall elect to treat the
sale of the Shares as a sale of assets under Section 338(h)(10) of the Tax Code. Seller agrees to
join with Purchaser in the timely filing of such election by jointly filing Form 8023 with the
Internal Revenue Service. The Purchase Price and the liabilities of the Company shall be allocated
among the assets of the Company in the manner as mutually agreed to by Seller and Purchaser (the
“Allocation”) in accordance with Section 338 of the Tax Code, the Treasury regulations promulgated
thereunder and any other pertinent provision of the Tax Code. Purchaser and Seller shall report,
act and file Tax Returns in all respects and for all purposes consistent with such Allocation.
Purchaser and Seller covenant and agree that neither party shall assert that the Allocation was not
separately bargained for at arms length or that such Allocation was not made in good faith.
Neither Purchaser nor Seller shall take any position in any Tax Return, administrative or judicial
proceeding that is in any way inconsistent with the Allocation. In the event such Allocation is
disputed, the party receiving notice of such dispute shall promptly notify and consult with the
other party and Purchaser and Seller agree to cooperate in resolving the dispute or defending the
Allocation.
6.5 Employee Benefits Covenants.
(a) Waivers; Deductibles; Out-of-Pocket Limitations. With respect to any welfare
benefit plans maintained by Purchaser and its Affiliates (including the Company) on or after the
Closing Date for the benefit of any employees of the Company who are employed on the Closing Date
(“Affected Employees”), Purchaser shall, or shall cause its Affiliates to, (i) cause any
eligibility requirements or pre-existing condition limitations to be waived and (ii) in determining
any deductible and maximum out-of-pocket limitations, give effect to any amounts paid by such
Affected Employees with respect to similar plans maintained by Seller and its Affiliates.
(b) 401(k) Plan.
(i) On the Closing Date or as soon as practicable thereafter, Seller shall (A) cause the
trustee of the Ohio Indemnity Company 401(k) and Profit Sharing Plan (the “Seller 401(k) Plan”) to
segregate the assets of such Seller 401(k) Plan representing the full account balances of the
Affected Employees as of the Closing Date, (B) make any and all filings and submissions to the
appropriate governmental agencies arising in connection with such segregation of assets, (C) make
all necessary amendments to the Seller 401(k) Plan and the related trust agreement to provide for
such segregation of assets and the transfer of assets described below.
(ii) On the Closing Date or as soon as practicable thereafter,
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Purchaser shall, or shall cause
its Affiliates to, (A) establish or designate an individual account plan for the benefit of the
Affected Employees (the “Company 401(k) Plan”), (B) take all necessary action to qualify such
Company 401(k) Plan under the applicable provisions of the Tax Code and (C) make any and all
filings and submissions to the appropriate governmental agencies required to be made by Purchaser
or any of its Affiliates in connection with the transfer of assets described below. As soon as
practicable following the earlier of the delivery to Seller of a favorable determination letter
from the IRS regarding the qualified status of the Company 401(k) Plan or the issuance of
indemnities satisfactory to Seller and Purchaser, Seller shall cause the trustee of the Seller
401(k) Plan to transfer in the form of cash (or such other form as may be agreed by Seller and
Purchaser) the full account balances of the Affected Employees under the Seller 401(k) Plan as of
the date of transfer to the appropriate trustee as designated by Purchaser or its Affiliate under
the trust agreement forming a part of the Company 401(k) Plan. The parties agree to complete the
transfer of such assets without constituting a plan termination, if possible.
(iii) In consideration of the transfer of assets described herein, Purchaser and its ERISA
Affiliates shall, effective as of the date of transfer described herein, assume all of the
obligations of Seller and any of its ERISA Affiliates in respect of the account balances
accumulated by the Affected Employees under the Seller 401(k) Plan (exclusive of any portion of
such account balances which are paid or otherwise withdrawn prior to the date of transfer described
herein) on or prior to the Closing Date. For purposes of this Section 6.5, “ERISA Affiliate” of
any entity shall mean any other entity that, together with such entity, would be treated as a
single employer under Section 414 of the Tax Code.
(c) Health Insurance.
(i) As of the last day of the calendar month in which the Closing Date occurs (such calendar
month, the “Closing Date Calendar Month”), the Affected Employees shall cease to participate in any
health insurance plan or program sponsored or maintained by Seller or any of its Affiliates (the
“Seller Health Plan”), except as required by applicable law.
(ii) As of the first day of the calendar month following the Closing Date Calendar Month, the
Affected Employees shall be eligible to participate in a health insurance plan sponsored or
maintained by Purchaser or any of its Affiliates (including the Company), subject to the terms and
conditions of such plan.
(iii) On the Closing Date or as soon as practicable thereafter, Purchaser shall pay to Seller
an amount equal to the product of (A) the aggregate premiums for the Affected Employees that were
paid under the Seller Health Plan by Seller or any of its Affiliates for the Closing Date Calendar
Month as set forth on Schedule 6.5(c), multiplied by (B) a fraction, the numerator of which is the
number of
22
days during the period beginning on the Closing Date and ending on the last day of
the Closing Date Calendar Month and the denominator of which is the number of days in the Closing
Date Calendar Month.
(d) Acknowledgement Concerning Other Employee Benefit Plans. Except as otherwise
provided in this Section 6.5, the parties acknowledge that (a) as of the Closing Date, employees of
the Company shall cease to participate in any Employee Benefit Plans, programs or arrangements
(including any flexible spending account plan) contributed to, maintained or sponsored by Seller or
any of its Affiliates (other than the Company), except as required by applicable law and (b) on and
after the Closing, employees of the Company shall be eligible to participate in any Employee
Benefit Plan, program or arrangement contributed to, maintained or sponsored by Purchaser or any of
its Affiliates (including the Company), subject to the terms and conditions of such plan, program
or arrangement.
ARTICLE 7
INDEMNIFICATION AGREEMENT/SURVIVAL PERIOD
INDEMNIFICATION AGREEMENT/SURVIVAL PERIOD
7.1 Indemnification by Seller; Limitations on Amount.
(a) Seller shall indemnify Purchaser, the Company and their Affiliates (individually, a
“Purchaser Party,” collectively, the “Purchaser Parties”) and hold each of them harmless from and
against all damages, claims, causes of action, losses and expenses, including reasonable attorneys’
fees and expenses (collectively, “Indemnifiable Losses”), incurred in connection with or arising
from any one or more of the following: (i) any nonfulfillment or breach by Seller of any of its
agreements or covenants in this Agreement, including, without limitation, the restrictive covenants
set forth in Section 6.1; and (ii) any breach of any warranty or the inaccuracy of any
representation or warranty of Seller contained in this Agreement or any certificate or Schedule
delivered by or on behalf of Seller pursuant
to this Agreement; provided, however, that a Purchaser Party shall not be
entitled to make a claim for indemnification under this Section 7.1 until Indemnifiable Losses in
the aggregate equal or exceed Fifty Thousand Dollars ($50,000) (the “Threshold Level”) (other than
for Indemnifiable Losses resulting from an Indemnifiable Loss due to a breach of a warranty or
inaccuracy of a representation set forth in Section 3.1(b) and the matters set forth in Sections
6.1 and 6.4 hereof as to which the Threshold Level shall not apply). Subject to the Indemnity Cap
provided in Section 7.1(b), once the Threshold Level is satisfied, Seller shall indemnify any
Purchaser Party for Indemnifiable Losses in excess of the Threshold Level.
(b) Notwithstanding anything contained herein to the contrary, Seller shall have no liability
to a Purchaser Party (for indemnification or otherwise) under this Agreement for Indemnifiable
Losses in excess of the Purchase Price (the
23
“Indemnity Cap”).
(c) If any Purchaser Party determines that it has suffered or incurred any Indemnifiable Loss,
such Purchaser Party shall so notify Seller within sixty (60) days in writing; provided,
however, that the failure to so notify Seller within such specified time period shall not
relieve Seller from any liability which Seller may have unless such failure prejudices Seller in
fulfilling its obligations hereunder. Notwithstanding the above, if any action at law or suit in
equity is instituted by a third party against any Purchaser Party with respect to which such
Purchaser Party intends to claim any Indemnifiable Loss under this Article 7, Purchaser shall
notify Seller of such action or suit in accordance with Section 7.3 of this Agreement.
(d) The parties agree that this Agreement sets forth the remedies and procedures to address
claims by Purchaser arising under this Agreement and the transactions contemplated hereunder. In
furtherance of the foregoing, Purchaser hereby waives claims and causes of action it, its
Affiliates, officers, directors or equity owners or the other Purchaser Parties may have that could
be made under this Agreement against Seller, its Affiliates, and their respective officers,
directors or equity owners arising under or based upon any Law or common law, except pursuant to
the remedies and procedures set forth in this Agreement.
7.2 Indemnification by Purchaser.
(a) Purchaser shall indemnify Seller and hold it harmless from and against any Indemnifiable
Loss incurred in connection with or arising from any one or more of the following: (i) any
nonfulfillment or breach by Purchaser of any of its agreements or covenants in this Agreement; and
(ii) any breach of any warranty or the inaccuracy of any representation of Purchaser contained in
this Agreement or any certificate delivered by or on behalf of Purchaser pursuant to this
Agreement; provided, however, that Seller shall not be entitled to make a claim for
indemnification under this Section 7.2 until the Indemnifiable Losses in the aggregate equal or
exceed the Threshold Level. Once the Threshold Level is satisfied Purchaser shall indemnify Seller
for Indemnifiable Losses in excess of the Threshold Level.
(b) If Seller determines that it has suffered or incurred any Indemnifiable Loss, it shall so
notify Purchaser within sixty (60) days in writing; provided, however, that the
failure to so notify Purchaser within such specified time period shall not relieve Purchaser from
any liability which it may have unless such failure prejudices it in fulfilling its obligations
hereunder. Notwithstanding the above, if any action at law or suit in equity is instituted by a
third party against Seller with respect to which it intends to claim any Indemnifiable Loss under
this Article 7, it shall notify Purchaser of any such action or suit in accordance with Section 7.3
of this Agreement.
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7.3 Third Party Claims.
(a) If a party (“Indemnitee”) receives notice of any claim or the commencement of any action
or proceeding with respect to which another party is obligated to provide indemnification
(“Indemnitor”) pursuant to either Section 7.1 or Section 7.2 of this Agreement, Indemnitee shall
give Indemnitor notice thereof within thirty (30) days after receiving written notice of such
claim, or within ten (10) days prior to the date on which an answer or reply, if any, to such claim
is due, whichever is earlier. The failure to provide notice as provided in this Section 7.3 shall
not excuse Indemnitor from its continuing obligations hereunder; however, Indemnitee’s claim shall
be reduced by the damage, if any, to Indemnitor resulting from Indemnitee’s delay or failure to
provide the notice described in this Section 7.3. Indemnitor shall be entitled to control the
defense of any such matter with counsel chosen by Indemnitor. In connection therewith: (i)
Indemnitee agrees to consent to any compromise or settlement proposed by Indemnitor where (A) the
compromise or settlement involves only monetary damages and (B) Indemnitor agrees to pay the full
amount of such monetary damages and reasonably demonstrates that it has the ability to pay such
amount; and (ii) Indemnitor agrees to consent to any compromise or settlement proposed by
Indemnitee where either (A) the compromise or settlement results in no Indemnifiable Losses to
Indemnitee that are required to be indemnified by Indemnitor or (B) Indemnitee agrees to bear any
and all Indemnifiable Losses. In any event, both Indemnitee and Indemnitor shall utilize
commercially reasonable efforts to limit or mitigate any asserted liability and cooperate in the
compromise of, or defense against, any such asserted liability, and each of them may participate in
the defense of such asserted liability. Indemnitee may not settle or compromise any claim over the
objection of Indemnitor if Indemnitor has acknowledged to Indemnitee, in writing, Indemnitor’s
obligation fully to indemnify Indemnitee with respect to such claim, except that Indemnitee may
settle any claim with respect to which it waives its indemnification rights under this Agreement.
Indemnitor may not settle or compromise any claim over the objection of Indemnitee if such
settlement or compromise would impose any liability or obligation (including, but not limited to,
the requirement to take or refrain from taking any action) on such Indemnitee or any of its
officers, directors, employees or Affiliates.
(b) The Seller shall control the conduct, through counsel of its own choosing at its own
expense, of any audit, claim for refund, or administrative or judicial proceeding involving any
asserted Tax liability or refund with respect to the Company (any such audit, claim for refund, or
proceeding relating to an asserted Tax liability referred to herein as a “Tax Contest”) relating to
any taxable period ending on or before the Closing Date.
(c) If Indemnitor chooses to defend any claim, Indemnitee shall make available to Indemnitor,
at Indemnitor’s expense, any books, records or other
25
documents or personnel within its control that
are necessary or appropriate for such defense. All Indemnifiable Losses under this Section 7.3
shall be reduced by amounts actually recovered or reasonably recoverable from any insurance carrier
(net of retroactive adjustments or other reimbursement to the insurer) and shall be net of any Tax
benefit to the indemnified Person.
7.4 Survival Period. The representations, warranties, covenants and indemnification
contained in this Agreement and in any Schedules or certificates delivered pursuant hereto shall
survive the Closing and the consummation of the transactions contemplated by this Agreement and
shall remain in full force and effect, regardless of any investigation made by or on behalf of any
party hereto, and shall continue until June 30, 2008, at which time all of such representations,
warranties, covenants and indemnification obligations shall terminate, except for any
representation, warranty, covenant or indemnification obligation relating to (a) all Tax matters
set forth in Section 3.6, which shall continue in full force and effect until the expiration of the
applicable statute of limitations for assessment of Taxes (including any waiver or extension
thereof), and (b) the matters set forth in Sections 3.1(b) and 6.4 which shall continue in full
force and effect forever. Notwithstanding anything contained in this Section 7.4 to the contrary,
any claim for indemnification as to which proper notice from the party seeking indemnification has
been given prior to the expiration of the applicable survival period contemplated hereby to the
party against whom indemnification is sought shall survive until such claim has been resolved.
ARTICLE 8
GENERAL PROVISIONS
GENERAL PROVISIONS
8.1 Public Announcement. Except for disclosures that may be required under the
reporting requirements of applicable regulatory agencies, no party shall make any public
announcement of
the transactions contemplated hereby prior to the Closing without the prior written consent of the
other party hereto.
8.2 Notices. All notices, requests, consents and other communications hereunder
(“Notice”) shall be in writing and shall be deemed to have been given (a) if mailed, the date of
receipt of such Notice when sent via first class United States registered mail, return receipt
requested, postage prepaid to the address listed below for the party to whom the Notice is being
sent (“Notice Party”); (b) if hand delivered or delivered by courier, upon actual delivery of such
Notice to the Notice Party at the address listed below for such Notice Party; or (c) if sent by
facsimile, on the first business day after the date of the sender’s receipt of a confirmed
transmission of such Notice to the Notice Party at the facsimile number, if any, listed below for
such Notice Party provided the party giving such Notice mails a copy of such Notice within two (2)
days after the transmission of such Notice by facsimile to the Notice Party. The addresses and
facsimile numbers for each party to this Agreement, as of the date hereof, are:
26
If to Purchaser: | A.L.P. ACQUISITION CO., INC. | |||
x/x Xxxxxxx X. Xxxx | ||||
000 Xxxxxx Xxxxxx, Xxxxx 0000 | ||||
Xxxxxxxxxx, XX 00000 | ||||
With a copy to: | Xxxxxx X. Xxxxxx, Esq. | |||
Xxxxxxxxx & Dreidame Co., L.P.A. | ||||
000 Xxxxxx Xxxxxx, Xxxxx 0000 | ||||
Xxxxxxxxxx, XX 00000 | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
If to Seller: | BANCINSURANCE CORPORATION | |||
Attention: Chief Financial Officer | ||||
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx |
||||
Xxxxxxxx, XX 00000 | ||||
With a copy to: | Xxxxxxx X. Xxxxxx, Esq. | |||
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP | ||||
00 Xxxx Xxx Xxxxxx | ||||
Xxxxxxxx, XX 00000 |
Any party may change his or its address or facsimile number by providing written notice, in
accordance with the foregoing provisions of this Section 8.2, to each other party of such change.
8.3 Expenses. Each party hereto
will pay all costs, fees and expenses incident to its negotiation and preparation of this Agreement
and to its performance and compliance with all agreements contained herein on its part to be
performed, including the fees, expenses and disbursements of its respective counsel and
accountants.
8.4 Governing Law: Forum. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to such jurisdiction’s conflict of
laws principles. All parties to this Agreement agree to submit to the jurisdiction of any state or
federal court located in Columbus, Franklin County, Ohio, to resolve any dispute arising from,
through, or in any manner related to this Agreement.
8.5 Partial Invalidity. In case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this
Agreement, but this Agreement shall be construed as if such
27
invalid, illegal or unenforceable
provision or provisions had never been contained herein.
8.6 Access to Records. For a period of three years after the date hereof, Seller and
its representatives shall have reasonable access to all of the books and records relating to the
Assets and Business to the extent that such access may reasonably be required by Seller in
connection with matters relating to or affected by the operations of the Business and the Assets
prior to Closing (collectively, “Accessible Records”); provided, however, Seller
shall have reasonable access to any Accessible Records which relate to an indemnity claim made by a
Purchaser Party against Seller pursuant to this Agreement for so long as such claim is unresolved.
Such access shall be afforded by the Company upon receipt of reasonable advance notice and during
normal business hours. Seller shall exercise its rights under this Section 8.6 in such a manner as
to avoid undue disruption of the business and affairs of the Company. Seller shall be solely
responsible for any costs or expenses incurred pursuant to this Section 8.6. If the Company shall
desire to dispose of any material Tax or accounting books and records prior to the expiration of
such three-year period, the Company shall, prior to such disposition, give Seller a reasonable
opportunity, at its expense, to segregate and remove such books and records as it may select.
8.7 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
8.8 Execution in Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original counterpart, and all of which shall be
considered to be but one agreement and shall become a binding agreement when each party shall have
executed one counterpart and delivered it to the other parties
hereto.
8.9 Titles and Headings; Rules of Construction. Titles and headings to sections herein
are inserted for convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement. Whenever the context so requires the use of or
reference to any gender includes the masculine, feminine and neuter genders; and all terms used in
the singular shall have comparable meanings when used in the plural and vice versa.
8.10 Entire Agreement; Amendments and Waivers. This Agreement contains the entire
understanding of the parties hereto with regard to the subject matter contained in this Agreement
and supersedes all prior agreements or understandings of the parties or their respective agents,
accountants or attorneys. The parties, by mutual agreement in writing, may amend, modify and
supplement this Agreement. The failure of any party to this Agreement to enforce at any time any
provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way
to affect the validity of this Agreement or any part hereof or the right
28
of such party thereafter
to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach.
8.11 Brokers’ and Finders’ Fees. Seller represents that it has not incurred, and shall
not incur any liability for brokers’ or finders’ fees or agents’ commissions in connection with
this Agreement or the transactions contemplated hereby.
8.12 Third Party Beneficiaries. Except as provided in Article 7 to the extent that a
party is obligated thereunder, the parties hereto intend that this Agreement shall not benefit or
create any right or cause of action in or on behalf of any Person other than the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of
the day and year first above written.
PURCHASER: | SELLER: | |||||||||
A.L.P. ACQUISITION CO., INC. | BANCINSURANCE CORPORATION | |||||||||
By:
|
/s/ Xxxxxxx X. Xxxx | By: | /s/ Xxxxxxx X. Xxxxx | |||||||
Name: Xxxxxxx X. Xxxx | Name: Xxxxxxx X. Xxxxx | |||||||||
Title: President | Title: Chief Financial Officer |
29
EXHIBIT A
PROMISSORY NOTE
Exhibit A
This Promissory Note (“Note”) was acquired for investment only and not for resale.
This Note has not been registered under the Securities Act of 1933, as amended, or
any state securities law. This Note may not be sold, transferred, pledged or
hypothecated unless first registered under such laws, or unless Makers have
received an opinion of counsel satisfactory to Makers that registration under such
laws is not required.
PROMISSORY NOTE
$470,000 | August 31, 2006 |
FOR VALUE RECEIVED, A.L.P. ACQUISITION CO., INC., an Ohio corporation whose mailing address is
c/o Xxxxxxx X. Xxxx, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxx 00000, and AMERICAN LEGAL
PUBLISHING CORPORATION, an Ohio corporation whose mailing address is c/o Xxxxxxx X. Xxxx, 000
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxx 00000 (each, a “Maker” and, collectively,
“Makers”), jointly and severally promise to pay to the order of BANCINSURANCE CORPORATION,
an Ohio corporation whose mailing address is Attn: Xxxxxxx X. Xxxxx, Chief Financial Officer, 000
Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000 (“Payee”), the principal sum
of Four Hundred Seventy Thousand and 00/100 Dollars ($470,000), together with interest from the
date hereof on the unpaid principal balance from time to time outstanding, as follows: Interest
shall accrue at a rate per annum equal to 8.00%, compounded annually, and shall be computed on the
basis of a 365-day year for the actual number of days the unpaid principal amount hereof is
outstanding.
The principal and interest owing under this Promissory Note (this “Note”) shall be
repaid as follows: (i) on September 1, 2006, a principal repayment in the amount of $345,000; (ii)
five (5) monthly installments (the “Monthly Installment Payments”), each consisting of a principal
repayment in the amount of $20,833.33, plus all accrued and unpaid interest owing as of the date of
each such Monthly Installment Payment; and (iii) a final installment (the “Final Installment
Payment”) consisting of a principal repayment in the amount of $20,833.35, plus all accrued and
unpaid interest owing as of the date of such Final Installment Payment. The first Monthly
Installment Payment shall be made on October 1, 2006, each subsequent Monthly Installment Payment
shall be made on the first day of each of the four following months, and the Final Installment
Payment shall be made on March 1, 2007. Notwithstanding anything to the contrary set forth herein,
the entire unpaid balance of principal and all accrued interest, if not sooner repaid, shall be due
and payable in full on or before March 1, 2007.
All payments received under the terms of this Note (or upon collection of this Note) will be
applied by Payee first to any sums due under this Note other than principal or interest, second to
accrued interest and third to the outstanding principal balance.
Principal, interest and other sums payable in accordance with this Note shall be payable in
lawful money of the United States of America at the Payee’s mailing address as provided above, or
such other address of which Payee may from time to time give written notice to Makers.
At the option of Payee, the entire unpaid principal balance of this Note, together with all
accrued interest, shall become immediately due and payable without notice or demand (which each
Maker hereby expressly waives), upon the occurrence of any of the following events (each, an
“Event of Default,” and, collectively, “Events of Default”), whether or not within
the control of Maker: (a) either Maker breaches or otherwise fails to comply with any term or
provision contained in this Note, that certain Stock Purchase Agreement dated of even date herewith
executed by and between A.L.P. Acquisition Co., Inc. and Payee, or any other agreement,
document or instrument executed by and between either Maker and Payee related to any of the
foregoing; (b) either Maker fails to make all sums payable when due under this Note and such
payment remains unpaid for five (5) days after its due date; (c) either Maker becomes insolvent or
a receiver or custodian, as that term is defined under The Bankruptcy Code of 1978, as amended,
Title 11, U.S.C. (the “Bankruptcy Code”), over any of either Maker’s property is appointed
or exists; or (d) either Maker makes any assignment for the benefit of creditors or any petition
initiating any case is filed by or against either Maker under any applicable chapter of the
Bankruptcy Code.
The obligations evidenced by this Note may be prepaid in whole or in part at any time without
penalty. Any partial pre-payment made by Makers shall be applied in the inverse order of maturity,
and shall not release Makers from continuing thereafter to make regularly- scheduled installment
payments.
Upon the occurrence of any Event of Default, Makers will pay to Payee all attorneys’ fees,
court costs and expenses incurred by Payee in connection with Payee’s efforts to collect the
indebtedness evidenced hereby, and Payee may exercise from time to time any of the rights and
remedies available to Payee under the applicable law.
No delay or failure on the part of Payee to exercise any of its rights hereunder shall be
deemed a waiver of such rights or of any other rights of Payee nor shall any delay, omission or
waiver on any one occasion be deemed a bar to or a waiver of such rights or any other right on any
future occasion.
Makers and all other persons now or hereafter liable, primarily or secondarily, for the
payment of the indebtedness evidenced hereby or any part thereof, waive presentment for payment,
demand, notice of dishonor, protest and notice of protest, and all notices of every kind and assent
to all extension(s) or postponement(s) of the time of payment or any other indulgences by Payee to
any substitutions, exchanges, or releases of any security for this Note, and to additions or
releases of any other parties or persons primarily or secondarily liable hereon.
Upon any transfer of this Note by Payee or by any subsequent transferee, the transferee shall
thereupon become vested with all rights, benefits and privileges of Payee under
2
this Note and by law provided, and the term “Payee” shall mean such subsequent transferee or
transferee(s).
This Note and all rights and obligations under this Note shall be governed by and construed
under the local laws of the State of Ohio, without application of its conflicts of laws principles.
If any provision hereof is or becomes invalid or unenforceable under any law of mandatory
application, it is the intent of Makers, Payee, and all parties primarily or secondarily liable
hereunder, that such provision will be deemed severed and omitted herefrom, the remaining portions
hereof to remain in full force and effect as written.
Each Maker authorizes any attorney at law to appear in any court of record in the State of
Ohio or any other state or territory of the United States, after the indebtedness evidenced hereby,
or any part thereof, becomes due and waives the issuance and service of process and confesses
judgment against the undersigned in favor of Payee for the amount then appearing due, together with
all costs of suit and, thereupon, to release all errors and waive all rights of appeal and
appearance and stays of execution. The foregoing warrant of attorney shall survive any judgment,
and if any judgment be vacated for any reason, Payee nevertheless may thereafter use the foregoing
warrant of attorney to obtain an additional judgment or judgments against the undersigned.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]
3
In Witness Whereof, each Maker, by and through its duly-authorized representative, has
executed this Note on the day and year first above written at 00 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx
00000.
WARNING — BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU
DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE
POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARD-LESS OF ANY CLAIMS YOU MAY HAVE AGAINST
THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON ITS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
MAKERS: | ||||||
A.L.P. ACQUISITION CO., INC. | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
AMERICAN LEGAL PUBLISHING CORPORATION | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
4
EXHIBIT B
SELLER’S OPINION
Exhibit B
August 31, 2006
A.L.P. Acquisition Co., Inc.
x/x Xxxxxxx X. Xxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
x/x Xxxxxxx X. Xxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
The Huntington Capital Investment Company
Huntington Center, Ninth Floor
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Huntington Center, Ninth Floor
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Gentlemen:
We have acted as counsel to Bancinsurance Corporation, an Ohio corporation (“Seller”), in
connection with the Stock Purchase Agreement dated August 31, 2006 (the “Agreement”), between
A.L.P. Acquisition Co., Inc., an Ohio corporation (“Purchaser”), and Seller, pursuant to which
Purchaser is purchasing all of the issued and outstanding shares of American Legal Publishing
Corporation, an Ohio corporation (the “Company”). This is the opinion contemplated by Section
2.2(b)(iii) of the Agreement. All capitalized terms used in this opinion without definition have
the respective meanings given to them in the Agreement.
In connection with this opinion, we have examined fully-executed copies of the Agreement. We
also have examined the originals or certified, conformed or reproduction copies of, and have relied
upon the accuracy of, without independent verification or investigation, such other records,
agreements, instruments and documents as we have deemed necessary or relevant as the basis for our
opinion. In such examinations, we have assumed the genuineness of all signatures (other than those
of Seller), the conformity to original documents of all documents submitted to us as copies and the
authenticity of such originals of such latter documents.
Based upon and subject to the foregoing and the further qualifications and limitations set
forth below, as of the date hereof, we are of the opinion that:
1. Seller is a corporation validly existing under the laws of the State of Ohio, and has all
necessary corporate power and authority under Chapter 1701 of the Ohio Revised Code (the “Ohio
General Corporation Law”) to enter into the Agreement and to perform its obligations thereunder.
A.L.P. Acquisition Co., Inc.
The Huntington Capital Investment Company
August 31, 2006
Page 2
The Huntington Capital Investment Company
August 31, 2006
Page 2
2. The Company is a corporation validly existing under the laws of the State of Ohio, and has
all necessary corporate power and authority under the Ohio General Corporation Law to own its
properties and to conduct its business in the manner presently owned and conducted.
3. The Agreement has been duly executed and delivered by Seller and constitutes the legal,
valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.
In rendering the foregoing opinion concerning enforceability, we have assumed that the Agreement
constitutes the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms.
4. The authorized capital stock of the Company consist of Seven Hundred Fifty (750) common
shares, without par value. One Hundred (100) of such common shares are issued and outstanding, and
are owned of record by Seller, constituting the Shares. As a result of the delivery of one or more
certificates to Purchaser and the payment to Seller being made at the Closing, Purchaser is
acquiring ownership of the Shares.
Our opinions herein are subject to (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or limiting creditors’ rights generally and (b)
concerning enforceability, to principles of equity, whether such enforceability is considered in a
proceeding in equity or at law, and to the discretion of the court before which any proceeding
therefor may be brought. In addition, certain remedial and other provisions of the Agreement may
be limited by implied covenants of good faith, fair dealing and commercially reasonable conduct,
judicial discretion, in the instance of multiple or equitable remedies, and public policies of the
State of Ohio.
This opinion is limited to the federal laws of the United States and the laws of the State of
Ohio, in each case having effect on the date of this opinion. The opinions and statements
expressed herein are furnished specifically in connection with the execution and delivery of the
Agreement for the benefit of the addressee hereof and may not be relied upon, assigned, quoted or
otherwise used in any manner or for any purpose by any other person or entity, without our specific
prior written consent.
Very truly yours, |
EXHIBIT C
PURCHASER’S OPINION
Exhibit C
(000) 000-0000
xxxxxxx@xxxxxxxxxxxx.xxx
xxxxxxx@xxxxxxxxxxxx.xxx
September 6, 2006
Gentlemen:
We have acted as counsel to A.L.P. Acquisition Co., Inc., an Ohio corporation (“Purchaser”),
in connection with the Stock Purchase Agreement dated August 31, 2006 (the “Agreement”), between
Purchaser and Bancinsurance Corporation, an Ohio corporation (“Seller”), pursuant to which
Purchaser is purchasing all of the issued and outstanding shares of American Legal Publishing
Corporation, an Ohio corporation (the “Company”). This is the opinion contemplated by Section
2.2(c)(iii) of the Agreement. All capitalized terms used in this opinion without definition have
the respective meanings given to them in the Agreement.
In connection with this opinion, we have examined fully-executed copies of the Agreement. We
also have examined the originals or certified, conformed or reproduction copies of, and have relied
upon the accuracy of, without independent verification or investigation, such other records,
agreements, instruments and documents as we have deemed necessary or relevant as the basis for our
opinion. In such examinations, we have assumed the genuineness of all signatures (other than those
of Purchaser), the conformity to original documents of all documents submitted to us as copies and
the authenticity of such originals of such latter documents.
Based upon and subject to the foregoing and the further qualifications and limitations set
forth below, as of the date hereof, we are of the opinion that:
1. Purchaser is a corporation validly existing under the laws of the State of Ohio, and has
all necessary corporate power and authority under Chapter 1701 of the Ohio
Revised Code (the “Ohio General Corporation Law”) to enter into the Agreement and to perform its
obligations thereunder.
2. The Agreement has been duly executed and delivered by Purchaser and constitutes the legal,
valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its
terms. The Promissory Note to be issued by Purchaser and the Company to Seller at Closing in
payment of a portion of the purchase price constitutes the legal, valid and binding obligation of
Purchaser and the Company, enforceable against each of them in accordance with its terms. In
rendering the foregoing opinion concerning enforceability, we have assumed that the Agreement
constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms.
Our opinions herein are subject to (a) bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or limiting creditors’ rights generally and (b)
concerning enforceability, to principles of equity, whether such enforceability is considered in a
proceeding in equity or at law, and to the discretion of the court before which any proceeding
therefor may be brought. In addition, certain remedial and other provisions of the Agreement may
be limited by implied covenants of good faith, fair dealing and commercially reasonable conduct,
judicial discretion, in the instance of multiple or equitable remedies, and public policies of the
State of Ohio.
This opinion is limited to the federal laws of the United States and the laws of the State of
Ohio, in each case having effect on the date of this opinion. The opinions and statements
expressed herein are furnished specifically in connection with the execution and delivery of the
Agreement for the benefit of the addressee hereof and may not be relied upon, assigned, quoted or
otherwise used in any manner or for any purpose by any other person or entity, without our specific
prior written consent.
Very truly yours, | ||
XXXXXXXXX & DREIDAME | ||
Xxxxxx X. Xxxxxx | ||
TEM:pgg |
||
Enc. |
INDEX
DISCLOSURE SCHEDULES
DISCLOSURE SCHEDULES
3.2
|
Authorization | |
3.4
|
Absence of Certain Changes or Events | |
3.5
|
Debt for Borrowed Money | |
3.6(a)
|
Tax Matters — Covered Jurisdictions | |
3.6(b)
|
Tax Matters — Audit | |
3.6(c)
|
Tax Matters — Waiver | |
3.7
|
Real Property | |
3.8
|
Litigation; Claims | |
3.9
|
Intercompany/Affiliate Transactions | |
3.10(a)(i)
|
Employee Relations Matters | |
3.10(a)(ii)
|
Employee Relations Matters | |
3.10(b)(i)
|
Employee Relations Matters | |
3.10(b)(iii)
|
Employee Relations Matters | |
3.10(b)(iv)
|
Employee Relations Matters | |
3.12
|
Other Disclosures — Bank Name and Address | |
6.5
|
Seller Health Plan Premiums |
Schedule 3.2 — Authorization
Nothing to disclose.
Schedule 3.4 — Absence of Certain Changes or Events
Nothing to disclose.
Schedule 3.5 — Debt for Borrowed Money
Promissory Note, dated July 2002, made by American Legal Publishing Corporation payable to Xxxx
Xxxxx in the original principal amount of $75,000, the outstanding principal balance of which is
$15,000.
Schedule 3.6(a) — Tax Matters — Covered Jurisdictions
1. IRS – Federal Tax
2. Ohio – Sales and Use Tax
3. California – Sales and Use Tax
4. Kentucky – Sales and Use Tax
5. New Mexico – Sales and Use Tax
6. Florida – Corporate Tax
7. Cincinnati – Local Tax
8. Xxxxxxxx County – Property Tax
9. Columbus – Local Tax
10. Philadephia – Local Tax
Schedule 3.6(b) — Tax Matters — Audit
During 2006, the IRS performed a Limited Issue Focused Examination on Bancinsurance Corporation’s
2004 Form 1120 consolidated tax return and related amended returns for 2003 and 2002.
Schedule 3.6(c) — Tax Matters — Waiver
In conjunction with the IRS exam described in Schedule 3.6(b) hereto, Bancinsurance Corporation
agreed to waive the statute of limitations for the 2002 tax year until December 31, 2007.
Schedule 3.7 — Real Property
Nothing to disclose.
Schedule 3.8 — Litigation; Claims
Nothing to disclose.
Schedule 3.9 — Intercompany/Affiliate Transactions
1. | Management Fee Agreement, dated March 1, 2000, as amended, by and between Bancinsurance Corporation and American Legal Publishing Corporation. | |
2. | Since its incorporation, American Legal Publishing Corporation has performed in accordance with the terms of that certain Tax Sharing Agreement, dated January 1, 1983, by and between Bancinsurance Corporation and Ohio Indemnity Company. |
Schedule 3.10(a)(i) — Employee Relations Matters
1. | Ohio Indemnity Company 401(k) and Profit Sharing Plan* | |
2. | Ohio Indemnity Company Flexible Spending Account – United Healthcare* | |
3. | Ohio Indemnity Company Health Insurance – United Healthcare* | |
4. | Ohio Indemnity Company Life & AD&D Insurance – United Healthcare* | |
5. | Bancinsurance Corporation 1994 Stock Option Plan* | |
6. | American Legal Publishing Corporation Term Life Insurance for Xxxxx Xxxx – Pan American** | |
7. | American Legal Publishing Corporation Dental Insurance – Dental Care Plus** | |
8. | American Legal Publishing Corporation Life & AD&D Insurance – Jefferson Pilot** | |
9. | American Legal Publishing Corporation Whole Life Insurance – New York Life** | |
10. | American Legal Publishing Corporation Long-Term Disability Plan – Mutual of Omaha** |
* | Seller Employee Benefit Plan | |
** | Company Employee Benefit Plan |
Schedule 3.10(a)(ii) — Employee Relations Matters
Nothing to disclose.
Schedule 3.10(b)(i) — Employee Relations Matters
Nothing to disclose.
Schedule 3.10(b)(iii) — Employee Relations Matters
Nothing to disclose.
Schedule 3.10(b)(iv) — Employee Relations Matters
Nothing to disclose.
Schedule 3.12 — Other Disclosures — Bank Name and Address
Fifth Third Bank
00 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
00 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Authorized Persons to draw and/or have access – Xxxx Xxxxx, Xxxxx Xxxx, Si Xxxxx, Xxxx Xxxxx, Xxxx
Xxx (Access Only), Xxxx Xxxxxxx (Access Only).
Schedule 6.5 — Seller Health Plan Premiums
$17,183.01