EXHIBIT 10-C
GENERAL ASSIGNMENT AND BILL OF SALE
Made this 3rd day of January, 2001, but effective as of
January 1, 2001, from XXXXXXX INSURANCE OF WYOMING, INC., a
Wyoming corporation ("SELLER"), to BROWN & BROWN OF WYOMING,
INC., a Wyoming corporation ("BUYER").
WHEREAS, Seller is a subsidiary of Xxxxxxx Corporation, a
New York corporation ("SELLER'S PARENT"), and Buyer is a
subsidiary of Brown & Brown, Inc., a Florida corporation
("BUYER'S PARENT");
WHEREAS, Seller's Parent together with its shareholders and
Buyer's Parent, have entered into an Asset Purchase Agreement,
dated as of September 11, 2000, as amended by First Amendment to
Asset Purchase Agreement of even date herewith (as so amended,
the "PURCHASE AGREEMENT"), pursuant to which Seller's Parent has
agreed to cause Seller to sell, transfer, convey, assign and
deliver to Buyer, and Xxxxx's Parent has agreed to cause Buyer to
purchase and acquire from Seller, any assets of Seller which are
of the same nature as those owned by Seller and described as the
Acquired Assets in the Purchase Agreement (the "WYOMING ACQUIRED
ASSETS"), and Buyer's Parent has agreed, in partial consideration
therefor, to cause Buyer to assume certain obligations of Seller
in connection therewith by executing an Assumption Agreement of
even date herewith; and
WHEREAS, Seller desires to transfer and assign to Buyer the
Wyoming Acquired Assets, and Xxxxx desires to accept the sale,
transfer, conveyance, assignment and delivery thereof;
NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged:
1. Except as otherwise provided herein, all capitalized
terms contained and not defined herein (including the recitals
hereto) shall have the respective meanings ascribed to them in
the Purchase Agreement.
2. The purchase price for the Wyoming Acquired Assets
shall be Four Hundred Thirty-Four Thousand Nine Hundred Fifty and
00/100 Dollars ($434,950.00). The purchase price shall be paid
by Buyer to Seller (or Seller's Parent at Seller's direction) in
immediately available funds on the Closing Date at the same time
that the Purchase Price is paid by Xxxxx's Parent to Seller's
Parent under the Purchase Agreement.
3. Seller hereby irrevocably sells, transfers, conveys,
assigns and delivers to Buyer all of Seller's right, title and
interest in, to and under the Wyoming Acquired Assets, free and
clear of all Liens except for any applicable Permitted Liens and
Encumbrances, to have and to hold the same unto Buyer, its
successors and assigns, forever.
4. Buyer hereby accepts the sale, transfer, conveyance,
assignment and delivery of the Wyoming Acquired Assets.
Notwithstanding anything herein to the contrary, to the extent
that Seller owns or possess any assets which are similar in
nature to those assets of Seller's Parent which are excluded from
the Acquired Assets, as more specifically described in Section
1.4 of the Purchase Agreement, then those assets shall be
specifically excluded from the Wyoming Acquired Assets and shall
be retained by Seller at and following the Closing Date.
5. (a) Seller represents and warrants to Buyer as
follows:
(i) Seller is a corporation organized and in good
standing under the laws of the State of Wyoming and its status is
active. Seller has all requisite corporate power and authority
and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as now being
conducted.
(ii) Seller has the requisite corporate power and
authority to execute and deliver this instrument and to
consummate the transactions contemplated hereby. The execution,
delivery and performance of this instrument have been duly
authorized by all necessary corporate action on the part of
Seller. This instrument has been duly executed and delivered by
duly authorized officers of Seller on behalf of Seller, and this
instrument constitutes the legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization or
similar law from time to time in effect which offset creditors'
rights generally and general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding
in equity or in law).
(iii) The execution and delivery of this
instrument by Seller does not (A) conflict with or result in any
breach of any provision of its Certificate of Incorporation or By-
Laws, (B) require any filing with, or permit, authorization,
consent or approval of, any court, arbitral tribunal,
administrative agency or commission, or other governmental or
other regulatory authority or agency (each a "GOVERNMENTAL
ENTITY"), or (C) result in a violation or breach of, constitute a
default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify or cancel, or require
any notice or consent under any of the terms, conditions or
provisions of any agreement or other instrument or obligation to
which Seller is a party or by which Seller or any of its
properties or assets may be bound.
(b) Buyer represents and warrants to Seller as
follows:
(i) Buyer is a corporation organized and in good
standing under the laws of the State of Wyoming and its status is
active. Buyer has all requisite corporate power and authority
and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as now being
conducted.
(ii) Xxxxx has the requisite corporate power and
authority to execute and deliver this instrument and to
consummate the transactions contemplated hereby. The execution
and delivery of this instrument has been duly authorized by all
necessary corporate action on the part of Buyer. This instrument
has been duly executed and delivered by duly authorized officers
of Xxxxx on behalf of Xxxxx, and this instrument constitutes the
legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization or
similar law from time to time in effect which offset creditors'
rights generally and general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding
in equity or in law).
(iii) The execution and delivery of this
instrument by Buyer does not (A) conflict with or result in any
breach of any provision of its Articles of Incorporation or By-
Laws, (B) require any filing with, or permit, authorization,
consent or approval of, any Governmental Entity, or (C) result in
a violation or breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate,
terminate, modify or cancel, or require any notice or consent
under any of the terms, conditions or provisions of any agreement
or other instrument or obligation to which Buyer is a party or by
which Buyer or any of its properties or assets may be bound.
6. To the extent that any of the Wyoming Acquired Assets
include contracts described in the Purchase Agreement as Assigned
Contracts (the "WYOMING ASSIGNED CONTRACTS") and such contracts
are not assignable without the consent of another party and such
consent has not been obtained on or prior to the Closing Date,
this General Assignment and Bill of Sale shall not constitute an
assignment or attempted assignment which would constitute a
breach thereof. Any obligation of Seller's Parent under the
Purchase Agreement to cause Seller effect the transfer of any
Wyoming Assigned Contracts to Buyer shall not be terminated or
abridged by this provision, and the terms of Section 1.2(c) of
the Purchase Agreement shall continue to apply with respect
thereto.
7. At any time or from time to time after the date hereof,
at Xxxxx's request and without further consideration, Seller
shall execute and deliver to Buyer such other instruments of
sale, transfer, conveyance, assignment and confirmation, provide
such materials and information and take such other actions as
Buyer may reasonably deem necessary or desirable in order more
effectively to transfer, convey and assign to Buyer, and to
confirm Xxxxx's title to, all of the Wyoming Acquired Assets,
and, to the full extent permitted by Law, to put Buyer in actual
possession and operating control of the Wyoming Acquired Assets
and to assist Xxxxx in exercising all rights with respect
thereto.
8. Seller hereby constitutes and appoints Buyer the true
and lawful attorney of Seller, with full power of substitution,
in the name of Seller or Buyer, but on behalf of and for the
benefit of Buyer: (a) to demand and receive from time to time any
and all of the Wyoming Acquired Assets and to make endorsements
and give receipts and releases for and in respect of the same and
any part thereof; (b) to institute, prosecute, compromise and
settle any and all Actions or Proceedings that Xxxxx may deem
proper in order to collect, assert or enforce any claim, right or
title of any kind in or to the Wyoming Acquired Assets; (c) to
defend or compromise any or all Actions or Proceedings in respect
of any of the Acquired Assets; and (d) to do all such acts and
things in relation to the matters set forth in the preceding
clauses (a) through (c) as Buyer shall deem desirable. Seller
hereby acknowledges that the appointment hereby made and the
powers hereby granted are coupled with an interest and are not
and shall not be revocable by it in any manner or for any reason.
Buyer shall indemnify and hold harmless
Seller and its officers, directors, employees, agents and Affiliates
from any and all Losses caused by or arising out of any breach of Law
by Buyer in its exercise of the aforesaid powers.
9. This General Assignment and Bill of Sale is delivered
pursuant to and is subject to the Asset Purchase Agreement. In
the event of any conflict between the terms of the Asset Purchase
Agreement and the terms of this General Assignment and Bill of
Sale, the terms of the Asset Purchase Agreement shall prevail.
Neither the making nor the acceptance of this General Assignment
and Bill of Sale nor the transfer effected hereby shall (a)
constitute a waiver or release of Seller's Parent, Seller or any
of the Shareholders of any liabilities, duties or obligations
imposed upon any of them by the terms of the Purchase Agreement
or (b) impose any additional liabilities, duties or obligations
upon Seller's Parent, Seller or the Shareholders.
10. This General Assignment and Bill of Sale may be
executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one
and the same instrument. This General Assignment and Bill of
Sale and all of the provisions hereof shall be binding upon and
shall inure to the benefit of the respective parties and their
assigns, transferees and successors. This General Assignment and
Bill of Sale is made in the State of Florida, and shall be
governed by and construed in accordance with the laws of the
State of Florida applicable to a contract executed and performed
in such State, without giving effect to the conflicts of laws
principles thereof, except that if it is necessary in any other
jurisdiction to have the law of such other jurisdiction govern
this General Assignment and Bill of Sale in order for this
General Assignment and Bill of Sale to be effective in any
respect, then the laws of such other jurisdiction shall govern
this General Assignment and Bill of Sale to such extent.
IN WITNESS WHEREOF, the undersigned has caused its duly
authorized officer to execute this General Assignment and Bill of
Sale on the day and year first above written.
XXXXXXX INSURANCE OF WYOMING, INC.
By: /S/ XXXXX X. XXXXXXX
_______________________________
Name: Xxxxx X. Xxxxxxx
Title: President
