Exhibit 2.16
PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made as of the 3rd day of
July, 2003, by and between Nelnet Loan Services, Inc., a Nebraska Corporation,
("Purchaser") and Union Financial Services, Inc., a Nevada corporation and
Packers Service Group, Inc., a Nebraska corporation (individually and
collectively "Seller") (collectively referred to as the "Parties" and,
individually, as a "Party").
RECITALS
WHEREAS, each Seller owns 50% of the membership interests in UFS
Securities, L.L.C., a Nebraska limited liability company (the "Company"); and
WHEREAS, Seller desires to transfer to Purchaser Seller's interest in
the membership interests in the Company (the "Purchased Membership Interest").
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants herein contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby expressly acknowledged, the Parties
intending to be legally bound agree as follows:
1. Description of the Transaction; Terms Thereof.
1.1 Transfer of Purchased Membership Interest. At the
Closing (as defined in Section 1.2 hereof) and upon the terms and subject to the
conditions as set forth herein, Seller shall convey, sell, transfer and deliver
to Purchaser the Purchased Membership Interest.
1.2 Closing: Closing Date. The closing ("Closing") of the
purchase shall occur effective as of August 7,2003 ("Closing Date") or as soon
thereafter as the purchase price may be determined as set forth below. The time
and location of the Closing shall be determined by agreement among the Parties.
The effective date of transfer shall be the Closing Date, provided, however,
that all notices and approvals required by applicable law (including but not
limited to the NASD) shall have been given prior to the date on which transfer
of the Purchased Membership Interest shall be effective.
1.3 Purchase Price. At the Closing, Purchaser shall pay
to Seller, in immediately available funds, a purchase price in an amount equal
to $1,500,000.00, plus book value as of Closing, less any pending cash dividends
or other expenditures, of the Company as carried on the unaudited financial
statements of Company, when finalized and available. The Purchase Price shall be
divided equally between each of the Sellers.
1.4 Delivery of Transfer Documentation. At Closing, or
within fifteen (15) days thereafter, Seller shall deliver duly endorsed transfer
documentation representing the transfer of the Purchased Membership Interest to
the Purchaser.
2. Representations and Warranties.
Seller hereby represents and warrants to Purchaser as follows:
2.1 Organization. Good Standing. Seller is duly organized
and in good standing under the laws of its state of incorporation.
2.2 Title to the Purchased Membership Interest. Seller is
the record and beneficial owner of the Purchased Membership Interest which is
being transferred, free and clear of all liens, claims, security interests,
options, charges, pledges and other restrictions or encumbrances of any nature
whatsoever. Upon consummation of the transactions contemplated under this
Agreement, Purchaser will acquire from each Seller's good and valid title to
Seller's 50% interest in the Company clear of all liens, claims, security
interests, options, charges, pledges and other restrictions or encumbrances of
any nature whatsoever created by Seller.
3. Indemnification.
3.1 Indemnification by Purchaser. Purchaser agrees to
defend, indemnify and hold Seller or its officers, directors, trustees, agents,
affiliates, representatives, successors and assigns, harmless from and against
any claim, liability, expense, loss or other damage (including reasonable
attorneys' fees and expenses), ("Claims") in respect of any and all Claims
relating to resulting from any breach or violation of a covenant made in this
Agreement by Purchaser, and any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses incident to any item to
which the foregoing indemnity relates.
3.2 Indemnification by Seller. Seller agrees to defend,
indemnify and hold the Purchaser and its officers, directors, trustees, agents,
representatives, affiliates, successors and assigns, harmless from and against
any Claim in respect of any and all Claims relating to or resulting from any
breach of a representation or warranty or any violation of a covenant made in
this Agreement by Seller, and any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses incident to any item to
which the foregoing indemnity relates.
3.3 Determination of Loss. Indemnification pursuant to
this Section 3 shall be payable with respect to any Claim described herein as
subject to indemnification upon the happening of the earlier to occur of the
following:
(a) resolution of such Claim by mutual agreement
of the Parties; or
(b) the issuance of a final judgment, award,
order or other ruling by a court of competent jurisdiction.
3.4 Notification. Each of the Parties will promptly
notify the other Party of the existence or occurrence of any facts or events
which give rise to the assertion of any Claim under the provisions of this
Article 3; provided, however, that the failure to so notify the other Party
shall not relieve the other Party of its indemnification obligation, except,
and only to the extent, that the other Party is actually prejudiced by such
failure to notify or delay. If any such Claim is due to a claim of a third party
("Third Party Claim"), the indemnifying party shall, at the election of the
indemnified party, promptly and diligently take such actions as may be
reasonably required to defend or settle such claim and shall keep the
indemnified party advised of the current status thereof. If the indemnifying
party assumes the defense of the Third Party Claim, the indemnified party shall,
at the indemnifying party's expense, reasonably cooperate with the indemnifying
party's defense and the indemnifying parties shall reasonably consider the
indemnified party's advice.
4. Additional Covenants arid Agreements.
4.1 Expenses. Each Party hereto shall bear and pay all
costs and expenses incurred by it in connection with the transactions
contemplated by this Agreement, including, but not limited to, the fees, costs
and expenses of its own financial consultants, accountants and legal counsel.
4.2 Survival of Representations and Warranties. Except as
otherwise provided herein, the representations and warranties contained in this
Agreement shall survive the Closing Date.
4.3 Public Releases. The Parties shall agree with each
other as to the form and substance of any press release relating to this
Agreement or the transactions contemplated hereby, and shall consult with each
other as to the form and substance of other public disclosures relating hereto;
provided, however, that nothing contained herein shall prohibit any party hereto
from making any disclosure which it deems necessary in light of applicable laws
or regulations, after notice to the other party with the opportunity to comment
to the extent that delay of the disclosure is permitted under such laws or
regulations.
5. Miscellaneous.
5.1 Entire Agreement. This Agreement, including the
recitals and the Exhibits hereto and thereto, supersede any and all other
agreements, oral or written, among the Parties hereto and thereto with respect
to the subject matter hereof and thereof, and contain the entire agreement among
such Parties with respect to the transactions contemplated hereby and thereby.
5.2 Amendments. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on behalf of all of the
Parties hereto.
5.3 Successors; Assignment. This Agreement and all of the
provisions hereof and thereof shall be binding upon and inure to the benefit of
the Parties hereto and thereto and their respective successors and permitted
transferees and assignees. Neither this Agreement nor any interest herein may,
directly or indirectly, be transferred or assigned by any Party, in whole
or in part, without the written consent of the other Parties, except either
party may assign this Agreement or any portion thereof to any affiliate or
shareholder.
5.4 Notices. All notices, requests, demands or other
instruments which may or are required to be given by either party to the other
shall be in writing, and each shall be deemed to have been properly given when
served personally on an officer of the party to whom such notice is given or
upon expiration of a period of 48 hours from and after the postmark thereof when
mailed, postage prepaid, by registered or certified mail, requesting return
receipt, by overnight courier, or by telecopy, addressed as follows:
If to Seller:
Packers Service Group
Attention: Xxx X. Xxxxxx
0000 Xxxxx 00xx
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: 402/ 000-0000
Facsimile: 402/323-1188
Union Financial Services, Inc.
Attention: Xxxxxxx X. Xxxxxx
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 402/000-0000
Facsimile: 402/323-1286
If to Purchaser:
Nelnet Loan Services, Inc.
Attention: Xxxxx Xxxxxx
000 Xxxxx 00xx, Xxxxx 000
Xxxxxxx, XX 00000
Either party may change the address and name of the addressee
to which subsequent notices are to be sent to it by notice to the others given
as aforesaid, but any such notice of change, if sent by mail, shall not be
effective until the fifth day after it is mailed.
5.5 Waiver. If any Party expressly waives in writing an
unsatisfied condition, representation, warranty, undertaking, covenant or
agreement (or portion thereof) set forth herein, the waiving Party shall
thereafter be barred from recovering, and thereafter shall not seek to recover,
any damages, claims, losses, liabilities or expenses, including, without
limitation, legal and other expenses, from the c" r Parties in respect of the
matter or matters so waived. Any such waiver shall not constitute a covenant to
waive any such matters in the future.
5.6 Severability. If any term or provision of this
Agreement or any application thereof shall be invalid or unenforceable, the
remainder of this Agreement and any other application of such term or provision
shall not be affected thereby.
5.7 Counterparts. This Agreement may be executed in two
or more counterparts and by the Parties on separate counterparts, all of which
shall be considered one and the same agreement, and each of which shall be
deemed an original.
IN WITNESS WHEREOF, the Parties hereto have caused this Purchase
Agreement to be duly entered into as of the date first set forth above.
UNION FINANCIAL SERVICES INC.,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Title: President
PACKERS SERVICE GROUP, INC., a Nebraska
corporation
By: /s/ X. Xxxxxxx
-------------------------------------
Title: Vice President
NELNET LOAN SERVICES, INC., a
Nebraska corporation
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Title: President
