ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated effective as of December 1,
1998 (this "Agreement"), between Golden State Bancorp Inc., a Delaware
corporation ("Buyer"), and Trans Network Insurance Services Inc., a Delaware
corporation ("Seller").
WITNESSETH
WHEREAS, Seller is engaged in the marketing of life, property
and casualty insurance to California Federal Bank's retail and consumer loan
customers (the "Business"); and
WHEREAS, Buyer has agreed to acquire from Seller, and Seller has
agreed to sell to Buyer, the Business, on the terms and subject to the
conditions set forth herein.
NOW THEREFORE, the parties agree as follows:
ARTICLE I
TRANSFER OF ASSETS AND LIABILITIES
Section 1.1 Assets Transferred. Seller hereby transfers, assigns
and conveys to Buyer, and Buyer hereby acquires and accepts from Seller, for
the consideration set forth in Section 1.3 herein, all of Seller's rights,
title and interest in and to its property, assets and rights of every kind,
character and description, tangible and intangible, wherever located, related
to the Business, including including those properties, assets and rights
reflected on the balance sheet (the "Balance Sheet") of Seller at November 30,
1998 attached hereto as Annex I (the "Purchased Assets"). Buyer is not
acquiring from Seller, and Seller shall retain ownership of all right, title
and interest in and to, and exclude from sale hereunder, all of the assets,
properties and rights, tangible or intangible, wherever located, of Seller,
other than the Purchased Assets (collectively, the "Excluded Assets").
Section 1.2 Liabilities Assumed. Seller hereby assigns to Buyer,
and Buyer hereby assumes from Seller and agrees to pay, perform and discharge,
all of the liabilities and obligations of Seller (whether or not known,
contingent, incurred or accrued) related to the Purchased Assets (the "Assumed
Liabilities"). Buyer is not assuming from Seller, and Seller shall pay perform
and discharge, all liabilities and obligations of Seller, other than the
Assumed Liabilities (collectively, the "Excluded Liabilities").
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Section 1.3 Consideration; Purchase Price. In exchange for the
transfer of the Purchased Assets, Buyer hereby (i) assumes the Assumed
Liabilities and (ii) is paying Seller $56,019 in immediately available funds to
an account designated in writing by Seller.
Section 1.4 Closing. Upon the terms and subject to the
conditions of this Agreement, the consummation of the transactions contemplated
by this Agreement ("Closing") will take place on January 20, 1999 at 10:00
a.m., New York City time, at the offices of Seller, 625 Madison Avenue, New
York, New York, or at such other time or such other place as shall be agreed
upon by the parties.
Section 1.5 Employees. Buyer shall offer employment to all
employees of Seller engaged in activities related to the Business. Such offers
of employment shall include compensation and employee benefit arrangements
which, subject to the specific terms of the Buyer's existing benefit plans or
arrangements, shall in the aggregate be substantially similar to those provided
to such employees on the date hereof.
Section 1.6 Deliveries by Buyer and Seller. In connection with
the transactions contemplated hereby, contemporaneously herewith Buyer and
Seller are taking the following actions:
(a) Seller is duly executing and delivering to Buyer a
xxxx of sale substantially in the form of Exhibit A hereto (the "Xxxx of
Sale").
(b) Buyer is duly executing and delivering an instrument
of assignment and assumption substantially in the form of Exhibit B hereto (the
"Instrument of Assignment and Assumption").
(c) Buyer and Seller are duly executing and delivering
all other documents, certificates or instruments reasonably requested by
another party at or prior to the date hereof to effect the transactions
contemplated hereby (such documents, certificates and instruments, collectively
with the Xxxx of Sale and the Instrument of Assumption, the "Additional
Instruments").
Section 1.7 Third Party Consents. Notwithstanding any other
provisions of this Agreement, to the extent that any of the Purchased Assets to
be conveyed under Section 1.1 are not assignable or transferable without the
consent of another party (including any governmental authority) and such
consent has not been obtained, this Agreement shall not constitute an
assignment or transfer or an attempted assignment or transfer of such Purchased
Assets if such assignment or transfer or attempted assignment or transfer would
constitute a breach thereof. Seller agrees to use its best efforts to obtain
the consent of such other party to such an assignment or transfer as promptly
as practicable. In those cases where consents, releases or waivers have not
been obtained to the sale, conveyance, assignment or transfer to Buyer of such
Purchased Assets, this Agreement shall constitute an equitable
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assignment by Seller to Buyer of all of Seller's rights, benefits, title and
interest in and to such Purchased Assets, and where necessary or appropriate,
Seller shall be deemed to be Buyer's agent for the purpose of completing,
fulfilling and discharging all of Buyer's rights and liabilities arising after
the date hereof with respect to such Purchased Assets. Seller shall take all
necessary steps and actions to provide Buyer with the benefit of such Purchased
Assets (including, but not limited to, (i) enforcing any rights of Seller
arising with respect to any such Purchased Assets (including without limitation
the right to terminate in accordance with the terms thereof upon the advice of
Buyer) or (ii) permitting Buyer to enforce any rights arising with respect to
Purchased Assets) as if they had been sold, conveyed, assigned or transferred
to Buyer. Buyer shall, to the extent Buyer is provided with the benefits of
such Purchased Assets, assume, perform and in due course pay and discharge all
debts, obligations and liabilities of Seller with respect to such Purchased
Assets. If and so long as Seller is acting as Buyer's agent pursuant to this
Section 1.6, Buyer will indemnify and hold harmless Seller, its directors,
officers and employees against any liabilities and obligations incurred by any
of them in connection with Seller's continued performance as such agent,
including the payment of any associated Assumed Liabilities.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 2.1 Organization. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. Seller has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Seller is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification or licensing necessary, except in such jurisdictions in
which applicable law does not provide for such qualification, licensing or
being in good standing and except in such jurisdictions where the failure to be
so duly qualified or licensed and in good standing would not, in the aggregate,
have a material adverse effect on the business, results of operations or
financial or other condition or prospects (a "Material Adverse Effect") on the
Business.
Section 2.2 Authority. Seller has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement. This Agreement and each Additional
Instrument to which Seller is party has been duly and validly executed and
delivered by Seller and constitutes a valid and binding obligation of Seller
enforceable against Seller in accordance with its terms except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency or other
similar laws, now or hereafter in effect, affecting creditors rights generally,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
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discretion of the court before which any proceeding therefor may be brought.
Section 2.3 Consents and Approvals; No Violation. No filing
with, and no permit, authorization, consent or approval of any court of
competent jurisdiction, regulatory authority or other governmental authority,
or any third party is necessary for the consummation by Seller of the
transactions contemplated by this Agreement. Neither the execution and delivery
of this Agreement by Seller nor the consummation by Seller of the transactions
contemplated by this Agreement nor compliance by Seller with any of the
provisions hereof will (i) conflict with or result in any breach of any
provision of the certificate of incorporation or by-laws of Seller, (ii)
without regard for the provisions of Section 1.6 hereof, result in a violation
or breach of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, contract, agreement, permit, license, lease,
purchase order, sales order, arrangement or other commitment or obligation
(each a "Contract") to which Seller is a party or by which Seller or its assets
or properties may be bound or (iii) violate any order, writ, injunction,
decree, statute, treaty, rule or regulation (each an "Order") applicable to
Seller or its assets or properties, except in the case of (ii) or (iii) for
violations, breaches or defaults which would not, in the aggregate, have a
Material Adverse Effect on the Business.
Section 2.4 No Undisclosed Liabilities. No liabilities
(absolute, accrued, contingent or otherwise) relating to the Business have been
incurred, except liabilities relating to the Business incurred since the
Balance Sheet Date in the ordinary course of business consistent with past
practice, and liabilities incurred in connection with this Agreement.
Section 2.5 No Default
(a) Seller is not in default or violation (and no event
has occurred which with notice or the lapse of time or both would constitute a
default or violation) of any term, condition or provision of its certificate of
incorporation or by-laws.
(b) There exists no default or violation (and no event
has occurred which with notice or lapse of time would constitute a default or
violation) of any term, condition or provision of (i) any Contract or (ii) any
Order except for violations, breaches or defaults which would not, in the
aggregate, have a Material adverse Effect on the Business.
Section 2.6 Contracts. Each Contract is in full force and
effect, has not been modified or amended and constitutes the legal, valid and
binding obligation of Seller, enforceable against Seller in accordance with the
terms of such Contract. Seller has performed in all respects all obligations
required to be performed by it to date under such Contract, except where such
failure to perform would not have a Material Adverse Effect on the Business.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
Section 3.1 Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation. Buyer has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted. Buyer is duly qualified or licensed and in good standing to do
business in each jurisdiction in which the property owned, leased or operated
by it or the nature of the business conducted by it makes such qualification or
licensing necessary, except in such jurisdictions in which applicable law does
not provide for such qualification, licensing or being in good standing and
except in such jurisdictions where the failure to be so duly qualified or
licensed and in good standing would not in the aggregate, have a Material
Adverse Effect on Buyer and its subsidiaries, taken as a whole.
Section 3.2 Authority. Buyer has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement. This Agreement and each Additional
Instrument to which Buyer is a party has been duly and validly executed and
delivered by Buyer and constitutes a valid and binding obligation of Buyer
enforceable against Buyer in accordance with its terms except that (i) such
enforcement may be subject to applicable bankruptcy, insolvency or other
similar laws, now or hereafter in effect, affecting creditors rights generally,
and (ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
Section 3.3 Consents and Approvals; No Violation. No filing
with, and no permit, authorization, consent or approval of any court of
competent jurisdiction, regulatory authority or other governmental authority,
or any third party is necessary for the consummation by Buyer of the
transactions contemplated by this Agreement. Neither the execution and delivery
of this Agreement by Buyer nor the consummation by Buyer of the transactions
contemplated by this Agreement nor compliance by Buyer with any of the
provisions hereof will (i) conflict with or result in any breach of any
provision of the certificate of incorporation or bylaws of Buyer, (ii) result
in a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any Contract to which Buyer is a party or by which Buyer or its assets or
properties may be bound or (iii) violate any Order applicable to Buyer or its
assets or properties, except in the case of (ii) or (iii) for violations,
breaches or defaults which would not, in the aggregate, have a Material Adverse
Effect on Buyer and its subsidiaries, taken as a whole.
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Section 3.4 No Default.
(a) Buyer is not in default or violation (and no event has
occurred which with notice or the lapse of time or both would constitute a
default or violation) of any term, condition or provision of its certificate of
incorporation or by-laws.
(b) There exists no default or violation (and no event has
occurred which with notice or lapse of time would constitute a default or
violation) of any term, condition or provision of (i) any Contract or (ii) any
Order except for violations, breaches or defaults which would not, in the
aggregate, have a Material adverse Effect on the Buyer and its subsidiaries,
taken as a whole.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Further Assurances. From time to time after the
Closing, without additional consideration, each of Seller and Buyer will
execute and deliver such further instruments and take such other action as may
be necessary to make effective the transactions contemplated by this Agreement.
Section 4.2 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon receipt if
delivered personally, telecopied (which is confirmed) or mailed by registered
or certified mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) if to Seller, to:
MacAndrews & Forbes Holdings Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
(b) if to Buyer, to:
Golden State Bancorp Inc.
000 Xxxx Xxxxxx, 00xx Xxx.
Xxx Xxxxxxxxx, XX 00000
Attn: General Counsel
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Section 4.3 Expenses. Except as otherwise provided herein, (i)
all costs and expenses associated with the transfer of assets and liabilities
hereunder, including but not limited to filing fees, recording fees, value
added taxes and other fees and taxes, shall be paid by Seller and (ii) all
other costs and expenses incurred in connection with this Agreement shall be
paid by the party incurring such cost or expense.
Section 4.4 Headings. The headings herein are inserted for
convenience only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
Section 4.5 Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
instrument.
Section 4.6 Amendment; Waiver. This Agreement may be amended,
modified or waived at any time by the parties hereto, but only by an instrument
in writing signed on behalf of each of the parties hereto. Neither the failure
nor the delay on the part of any party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof.
Section 4.7 Entire Agreement. This Agreement, the schedules
hereto and the Additional Instruments constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof.
Section 4.8 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without regard
to any applicable principles of conflicts of law.
Section 4.9 Specific Performance. The parties hereto agree that
if any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached, irreparable damage would
occur, no adequate remedy at law would exist and damages would be difficult to
determine, and that the parties shall be entitled to specific performance or
the terms hereof, in addition to any other remedy at law or equity.
Section 4.10 Binding Nature. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their permitted
successors and assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon an other person or persons any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 4.11 Severability. This Agreement shall be deemed
severable; the invalidity or unenforceability of any term or provision of this
Agreement shall not affect the validity or enforceability of this Agreement or
of any other term hereof, which shall remain in
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full force and effect.
Section 4.12 Use of Intellectual Property and Corporate Name.
The Seller agrees that following the Closing, the Seller will not use any
intellectual property sold or conveyed herein. Within 30 days following the
Closing, the Seller shall change its corporate name and such new name will not
contain the words "Trans Network Insurance Services," or any variation thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective authorized officers as of
the day and year first above written.
TRANS NETWORK INSURANCE SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Vice President
GOLDEN STATE BANCORP INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx
Senior Vice President
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Annex I
Trans Network Insurance Services Inc.
Balance Sheet
November 30, 1998
Unaudited
Adjusted
Balance FMV Balance
11/30/98 Adjustment 11/30/98
-------------------------------------------------
Cash, Xxxxx Fargo Bank 95,872 95,872
Furniture and Equipment 10,023 10,023
Accumulated Depreciation (5,916) (5,916)
Prepaid Expenses 5,404 5,404
Intangible Asset - Goodwill 410,506 410,506
Accumulated Amortization (35,919) (35,919)
------- ------- -------
Total Assets 105,383 374,587 479,970
======= ======= =======
Accrued Payroll Taxes 4,613 4,613
Accrued Employee Benefits 5,594 5,594
Advance from MacAndrews 413,744 413,744
Common Equity 374,587 374,587
Retained Earnings (318,568) (318,568)
-------- ------- --------
Total Liabilities & Capital 105,383 374,587 479,970
======== ======= ========
Exhibit A
XXXX OF SALE
The undersigned, Trans Network Insurance Services Inc., a Delaware
corporation, ("Seller"), for and in consideration of One Dollar ($1.00) paid by
Golden State Bancorp Inc. ("Buyer") and for other good and valuable
consideration, receipt of which is hereby acknowledged, does on the date set
forth below grant, convey, transfer, bargain, sell, assign, deliver and set
over all of its right, title and interest in, the properties, assets and rights
(whether or not reflected on the balance sheet of Seller at November 30, 1998)
constituting the Business of Seller, as such term is defined in the Asset
Purchase Agreement dated effective as of December 1, 1998 between Buyer and
Seller.
Dated: Effective as of
December 1, 1998
TRANS NETWORK INSURANCE
SERVICES INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Vice President
Exhibit B
THIS ASSIGNMENT and ASSUMPTION is made effective as of December 1,
1998 between Trans Network Insurance Services Inc., a Delaware corporation,
("Assignor") and Golden State Bancorp Inc.,
a Delaware corporation ("Assignee").
WHEREAS, Assignor and Assignee are parties to an Asset Purchase
Agreement dated effective as of December 1, 1998 (the "Agreement").
WHEREAS, Assignor desires to assign all of the liabilities and
obligations of Assignor (whether or not known, contingent, incurred or accrued)
related to the Purchased Assets (as such term is defined in the Agreement) (the
"Assumed Liabilities"), and Assignee is willing to accept such assignment of
the Assumed Liabilities.
NOW THEREFORE, intending to be legally bound hereby, Assignor and
Assignee hereby agree as follows:
1. ASSIGNMENT. Effective as of the date hereof, Assignor hereby
assigns all of the Assumed Liabilities to Assignee.
2. ACCEPTANCE OF ASSIGNMENT. Assignee hereby accepts such
assignment and assumes all of the Assumed Liabilities.
3. GOVERNING LAW. This Assignment and Assumption shall be governed
by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have duly executed this Assignment
and Assumption.
TRANS NETWORK INSURANCE GOLDEN STATE BANCORP INC.
SERVICES INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
------------------------------- ------------------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxxxxxx
Vice President Senior Vice President
THIS ASSIGNMENT and ASSUMPTION is made effective as of December 1,
1998 between Trans Network Insurance Services Inc., a Delaware corporation,
("Assignor") and Golden State Bancorp Inc.,
a Delaware corporation ("Assignee").
WHEREAS, Assignor and Assignee are parties to an Asset Purchase
Agreement dated effective as of December 1, 1998 (the "Agreement").
WHEREAS, Assignor desires to assign all of the liabilities and
obligations of Assignor (whether or not known, contingent, incurred or accrued)
related to the Purchased Assets (as such term is defined in the Agreement) (the
"Assumed Liabilities"), and Assignee is willing to accept such assignment of
the Assumed Liabilities.
NOW THEREFORE, intending to be legally bound hereby, Assignor and
Assignee hereby agree as follows:
1. ASSIGNMENT. Effective as of the date hereof, Assignor hereby
assigns all of the Assumed Liabilities to Assignee.
2. ACCEPTANCE OF ASSIGNMENT. Assignee hereby accepts such
assignment and assumes all of the Assumed Liabilities.
3. GOVERNING LAW. This Assignment and Assumption shall be governed
by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have duly executed this Assignment
and Assumption.
TRANS NETWORK INSURANCE GOLDEN STATE BANCORP INC.
SERVICES INC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
--------------------------- -----------------------------
Xxxxx X. Xxxxxx Xxxx X. Xxxxxxxx
Vice President Senior Vice President
XXXX OF SALE
The undersigned, Trans Network Insurance Services Inc., a Delaware
corporation, ("Seller"), for and in consideration of One Dollar ($1.00) paid by
Golden State Bancorp Inc. ("Buyer") and for other good and valuable
consideration, receipt of which is hereby acknowledged, does on the date set
forth below grant, convey, transfer, bargain, sell, assign, deliver and set
over all of its right, title and interest in, the properties, assets and rights
(whether or not reflected on the balance sheet of Seller at November 30, 1998)
constituting the Business of Seller, as such term is defined in the Asset
Purchase Agreement dated effective as of December 1, 1998 between Buyer and
Seller.
Dated: Effective as of
December 1, 1998
TRANS NETWORK INSURANCE
SERVICES INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Xxxxx X. Xxxxxx
Vice President
