Exhibit 10.1
AGREEMENT FOR THE PURCHASE AND SALE
OF THE ASSETS OF AN INSURANCE AGENCY
This Agreement, made and entered into this 27th day of April, 2006, by
and between CNB Insurance Services, Inc., a West Virginia Corporation and a
wholly owned subsidiary of Citizens National Bank of Berkeley Springs, West
Virginia, a national banking organization, chartered under the laws of the State
of West Virginia, located at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxx
Xxxxxxxx (hereinafter "CNB Insurance Services, Inc." or "Seller") and Maiden
Financial, Inc., a West Virginia corporation, of 00 Xxxxxx Xxxxx, Xxxxxxxxxxxxx,
Xxxx Xxxxxxxx 00000 (hereinafter "Maiden" or "Buyer" or "Purchaser") is an
Agreement under which Seller agrees to sell and Purchaser agrees to purchase the
assets of CNB Insurance Services, Inc., (hereinafter throughout this Agreement
referred to simply as "the Agency").
ARTICLE I. DEFINITIONS AND CONSTRUCTION
Section 1.01 The terms "Seller" , "Vendor" , "Owner" , "Proprietor" or other
like term, when used herein, shall mean and refer to CNB Insurance Services,
Inc., its successors and assigns;
Section 1.02 The terms "Purchaser" , "Vendee" , "Buyer" or other like term, when
used herein, shall mean and refer to Maiden Financial, Inc., a West Virginia
Corporation;
Section 1.03 The terms "Agency" , "Insurance Business" , "Insurance Agency" , ,
shall mean and refer to the business and operations of CNB Insurance Services,
Inc., a West Virginia Corporation and a wholly owned subsidiary of Citizens
National Bank of Berkeley Springs, West Virginia, a national banking
organization, chartered under the laws of the State of West Virginia, located at
000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxx Xxxxxxxx;
Section 1.04 The terms "assets" , "assets of the business" , "assets of the
agency" or other like term shall mean and refer to the assets of CNB Insurance
Services, Inc. as they are delineated and defined in this Agreement.
Section 1.05 The terms "liabilities", "liabilities of the business",
"liabilities of the agency", "liabilities of the Seller" or other like terms
shall be understood to mean and include all of the liabilities, whether the same
be contractual, in tort, or otherwise, whenever and however the same shall have
accrued or have arisen, of the "Seller" or the "agency" or both;
4
Section 1.06 The terms "the companies", "the insurance companies" , "the
insurers" or other like term shall mean and refer to all of the insurance
companies for which the agency is authorized to sell insurance products.
Specifically, those insurance companies are those with which the agency has
contracts, which are appended hereto, collectively as Exhibit "B."
Section 1.07 The term "default," when used herein shall mean the breach or
nonperformance by a party hereto of a material term or condition of this
Agreement, including the failure of any warranty or representation made herein
by a party to prove to be true and accurate. "Default" shall also mean the
filing of a petition in bankruptcy as to either party hereto, whether the
petition be voluntary or involuntary, or the initiation of any proceeding under
state law providing for the assignment of assets for the benefit of the
creditors of the party.
Section 1.08 The terms "Settlement" , "Closing" or other like term shall mean
and refer to the execution of documents conveying title to the assets which are
the subject of this Agreement.
ARTICLE II. AGREEMENT FOR THE SALE AND PURCHASE OF ASSETS
The Seller agrees to sell to Purchaser, and the Purchaser agrees to
purchase from the Seller all of the assets of CNB Insurance Services, Inc.,
which are more fully described below in this Agreement, upon the terms and
conditions set forth in this Agreement.
ARTICLE III. DESCRIPTION OF ASSETS WHICH ARE SUBJECT TO AGREEMENT.
The parties hereto specifically agree that the assets which are the
subject of this Agreement are as described as follows:
SECTION 3.01 Real estate.
The Seller and Purchaser agree that this Agreement of sale does not
cover any real property, and that no real estate is to be conveyed under this
Agreement.
Section 3.02 Tangible personal property to be conveyed.
The Seller agrees to sell and Purchaser agrees to purchase from Seller
the tangible personal property described more fully in Exhibit "B" attached
hereto.
Section 3.03 Right to Receive Commissions.
Except as hereinafter provided, Seller agrees to assign and transfer to
Purchaser at Closing and Purchaser agrees to purchase and accept from Seller at
Closing any right of the Seller to receive commissions on the premiums for
insurance policies which have been sold prior to the Closing, to the extent that
those commissions have not been paid. Any commissions paid to Seller prior to
Closing will be and remain the property and earnings of Seller. Purchaser agrees
and understands that commission statements received by Seller from insurance
companies routinely show credits and debits, and to the extent that there are
debits, charges or adjustments to commissions which are paid after the Closing,
Purchaser will absorb those debits, charges or adjustments to commissions, even
if the adjustments are for commissions paid to Seller prior to Closing, it being
expressly agreed by the parties hereto that Purchaser is purchasing the net
commissions.
5
Seller agrees to transfer and assign to Purchaser any right Seller may
have to receive any contingency bonus or other bonus or payment of any kind from
any of the insurers which payment is due to be paid or is paid after Closing.
Any contingency bonus or other bonus or payment of any kind from any of the
insurers which is paid to Seller prior to Closing will be and remain the
property and earnings of Seller.
To the extent that they may be assignable, Seller will assign and
transfer to Purchaser all of the rights and authority the Seller may have under
any and all contracts heretofore entered into between the Seller and any
insurance companies whatsoever, including those which are appended hereto as
Exhibit "A."
The "right of the Seller to receive commissions on the premiums for
insurance policies which have been sold prior to the Closing," described above,
does not include the right to receive commissions on premiums on any of the
following policies which have been sold or issued in conjunction with any loan
or extension of credit made by Citizens National Bank of Berkeley Springs to a
banking customer: (1) any contract of credit life insurance; (2) any contract of
credit disability insurance; (3) any contract of joint credit life insurance;
(4) any contract of joint credit disability insurance The assets conveyed
hereunder do not include and right to use the name of the Agency, CNB Insurance
Services, Inc., or to use any variant thereof.
Section 3.04 Transfer of assets only; liabilities do not transfer
This Agreement provides for the transfer of assets. Purchaser does not
agree to assume and will not assume any liabilities whatsoever as a part of this
Agreement.
ARTICLE IV. PAYMENT OF PURCHASE PRICE TO SELLER.
Section 4.01 Gross Sale Price.
The Gross Sale Price for the assets of the Seller being purchased by
Purchaser is ONE HUNDRED AND FIFTY THREE THOUSAND, THREE HUNDRED AND
THIRTY-TWO DOLLARS AND THIRTY-SIX CENTS ($153,332.36).
Section 4.02 Manner of Payment of Gross Sale Price.
The Gross Sale Price shall be paid by Purchaser as follows:
(A) ONE HUNDRED AND TEN THOUSAND, NINE HUNDRED AND THIRTY-EIGHT DOLLARS AND
SEVENTY CENTS ($110,938.70) will be paid in cash on the day of
Settlement.
(B) FORTY-TWO THOUSAND, THREE HUNDRED AND NINETY-THREE DOLLARS AND
SIXTY-SIX CENTS ($42,393.66) will be paid, together with interest on
the unpaid portion thereof at the annual rate of 7.75%, in eighteen
(18) consecutive equal monthly installments of TWO THOUSAND FIVE
HUNDRED AND TWO DOLLARS AND THIRTY-FOUR CENTS ($2,502.34) each,
commencing for the first such installment one month after the day of
Settlement, with a
6
like installment of principal and interest due on the same day of each
of the next seventeen succeeding months. Purchaser shall have the right
to prepay this indebtedness without penalty. This indebtedness is
evidenced by the amortization schedule annexed hereto as Exhibit "C."
Seller will be free to assign this indebtedness to its parent company,
Citizens National Bank of Berkeley Springs.
ARTICLE V. WARRANTIES AND REPRESENTATIONS OF SELLER AND PURCHASER;
Section 5.01 Delineation of Warranties by Seller
(a) As to the contracts which Seller has entered into as agent with various
insurance companies, Seller makes no warranty that its authority or
position as agent for any of the companies delineated on Exhibit A
annexed hereto are transferable or assignable. Nor does Seller make any
warranty that Seller has any right to assign or transfer its
contractual rights or authority as agent. In fact, Purchaser has
inspected the contracts and acknowledges that some contain express
prohibitions on such a transfer or assignment.
(b) Seller is aware of no pending or threatened litigation with respect to
Seller or claims against Seller that would affect in a material way the
value of the assets which are the subject of this Agreement or that
would affect the quality of the Seller's title to the assets which are
the subject of this Agreement;
(c) Seller has no legal impediment to its authority and ability to enter
into this Agreement and to perform each and all of the terms and
conditions hereof;
(d) Seller makes no warranty as to any specific amount of money which is or
will be due as commissions on the premiums for insurance policies which
have been sold prior to the Closing. Nor does Seller make any warranty
or representation about whether the Seller is or will be entitled to
any kind of contingency or other bonus from any of the insurers;
(e) That there are no undisclosed latent defects with respect to any of the
tangible assets, both real and personal, which are to be transferred
pursuant to this Agreement.
Section 5.02 Delineation of Warranties by Purchaser
(a) Purchaser warrants that it is licensed to do business as an insurance
agency in the State of West Virginia, and that it has the authority to
enter into this Agreement and to perform his obligations hereunder.
(b) Purchaser is aware of no pending or threatened litigation with respect
to it or claims against it that would affect in a material way its
ability to enter into this Agreement or to perform its obligations
hereunder.
(c) Purchaser warrants that it has inspected any and all tangible personal
property to be conveyed pursuant to the terms of this Agreement, and
that it accepts the same in "as is" condition.
7
(d) Purchaser warrants that it has made his own calculations regarding the
value of that which it is purchasing, and is not relying on any
representations from Seller regarding the value of any assets to be
transferred hereunder.
Section 5.03 Effect of Warranties
The warranties made by each of the parties herein are made for purpose
of inducing the other party to enter into this Agreement. The parties agree and
acknowledge that but for these warranties, the parties would not have entered
into this Agreement. The parties further agree that the breach of any the
warranties set forth herein shall constitute a material breach of this
Agreement.
Section 5.04 Warranties to survive Settlement.
The parties hereto specifically agree that the warranties made herein
shall survive the Settlement, and the rights of the parties hereto and the
rights of any intended third-party beneficiary of the warranties in the case of
a breach of any warranty set forth above shall not be in any way limited on
account of Settlement having occurred.
ARTICLE VI. OTHER TERMS AND CONDITIONS
Section 6.01 Customer Privacy
The parties understand that there are federal and state laws which
require that customer privacy to be maintained and that customer information be
kept confidential. Purchaser agrees that it will not do anything before or after
Closing which would constitute a violation of any laws relating to privacy or
confidentiality of customer information. Purchaser agrees to indemnify and hold
Seller harmless from any and all liability whatsoever arising out of any claim
by a customer of Seller that there has been a breach of any law or regulation
relating to the privacy of customer information as a result of this Agreement or
on account of Purchaser having or releasing any customer information which is
required by law to be maintained confidentially.
Section 6.02 Employees of Seller
Seller has two employees, Xxxxxx Xxxxxxxx and Xxxx Xxxxx ("the
employees"). At Closing, or within the time thereafter permitted by law, Seller
will pay its employees fully for their work as employees of Seller. Purchaser
will not be responsible for any salary or benefits of employees which accrue
prior to the day of Settlement. It is the understanding of Seller that Purchaser
intends to offer employment to Seller's employees after Closing. In this regard,
Seller agrees to release the employees, as of the date of Closing, from
employment by Seller and from any contractual obligations which the employees
may have to Seller, in order to allow Seller's employees to be free to consider
and accept employment with Purchaser upon such terms and conditions of
employment as Purchaser may negotiate with them. The parties hereto agree that
negotiations between the Purchaser with Seller's employees may commence with the
execution of this Agreement.
8
Section 6.03 Notification by Seller of Insurers
Purchaser agrees and understands that Seller may be obligated
contractually to notify the insurers for which Seller serves as agent that
Seller has entered into this Agreement for the sale of the assets of the Agency,
including the assignment of commissions contemplated hereunder.
Section 6.04 Agreement by Purchaser for Continuing Discounted Health
Insurance for the Group Health Plan of Citizens National Bank
The parties acknowledge that the group health insurance plan for the
employees of Citizens National Bank ("the CNB Group Plan") is provided currently
by Mountain State Blue Cross and Blue Shield. Seller serves and acts as the
agent for the CNB Group Plan. Purchaser warrants that it is licensed and
authorized to act as agent for Mountain State Blue Cross and Blue Shield.
Purchaser further warrants and agrees that after Closing, it will continue to
act as agent for the CNB Group Plan. Purchaser further warrants and agrees that
so long as Citizens National Bank, its successors and assigns, shall maintain
the CNB Group Plan with Mountain State Blue Cross and Blue Shield or so long as
Citizens National Bank shall have a group health insurance plan with an insurer
which Purchaser represents, Purchaser will discount the premium for the CNB
Group Plan by the amount of commission that Purchaser is entitled to receive
from the insurer. This provision is intended by the parties to continue in
perpetuity. It is further the express and specific intention of the parties to
this Agreement that Citizens National Bank of Berkeley Springs is to be the
beneficiary of this provision of this Agreement. The parties hereto stipulate
that Citizens National Bank of Berkeley Springs, its successors and assigns, are
intended third-party beneficiaries of this Agreement, and it is further
stipulated that Citizens National Bank of Berkeley Springs will have a right to
enforce this provision of this Agreement, including the right to seek and have
legal and equitable relief in the future as may be necessary to give this
Agreement effect.
Section 6.05 Notices to Parties
Wherever any notice is required or permitted hereunder, such notice
shall be in writing and shall be delivered by (a) overnight courier, (b) by
hand, (c) by facsimile, followed by hard copy, or (d) sent by U.S. registered or
certified mail, return receipt requested, postage prepaid, to the addresses set
out below or at such other addresses as are specified by written notice
delivered in accordance herewith:
PURCHASER: Xxxxxx Xxxxxx
Maiden Financial, Inc.
00 Xxxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxx Xxxxxxxx 00000
SELLER: Xxxxxx X. Xxxxxxx
President
CNB Insurance Services, Inc.
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000,
9
and its counsel,
Xxxxxxx X. Xxxxx XX
Xxxxx & Xxxxx, XX
Attorneys at Law
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Notices given in accordance with the provisions set forth in (a) and
(d) above of this Paragraph will be deemed to have been given when mailed.
Notices given in accordance with the provisions set forth in (b) above of this
Paragraph will be deemed to have been given when delivered. Notices given in
accordance with the provisions set forth in (c) above of this Paragraph will be
deemed to have been given when transmitted.
Section 6.06 Purchaser's Financing Contingency
Purchaser's obligation to purchase under this Agreement is contingent
upon Purchaser being able to obtain acceptable financing for the portion of the
Gross sale price which Purchaser is obligated to pay at Settlement. However,
unless Purchaser shall notify Seller within ten (10) days from the date of
Purchaser's execution of this Agreement that Purchaser has not been able to
obtain acceptable financing for the portion of the Gross sale price which
Purchaser is obligated to pay at Settlement, then this contingency shall be
deemed to have been waived by Purchaser.
ARTICLE VII. SETTLEMENT
Section 7.01 Date of Settlement
Settlement under the terms of this Agreement shall occur on the 1st day
of June, 2006. The exact time shall be agreed upon between the parties.
Section 7.02 Place of Settlement
Settlement shall be had at the law offices of Xxxxx & Xxxxx, X.X.
counsel for the Seller, which offices are located at 000 X. Xxxxxxxxxx Xxxxxx,
Xxxxxxxx Xxxxxxx, XX 00000, or at such other place as may be agreed upon by the
parties.
Section 7.03 Documents, property and assets to be delivered
At Settlement, Seller shall execute, acknowledge and deliver to
purchaser the following documents and items of property:
(a) good and sufficient assignments of all of the rights of the Seller to
receive commissions on the premiums for insurance policies which have
been sold prior to the Closing;
(b) a good and sufficient xxxx of sale conveying any and all of the
tangible personal property which is the subject of this Agreement;
10
(c) actual possession of all of the assets which are the to be conveyed
pursuant to the terms of this Agreement;
(d) Following the Settlement date Seller will, on request of Purchaser,
execute and deliver to Purchaser such further instruments in writing as
may be required to complete or evidence the transaction herein provided
for, and Purchaser will, on request, execute and deliver like
instruments to Seller.
Section 7.04 Expenses of Settlement
Any sales, excise, transfer, purchase, or use tax under the law of the
State of West Virginia or of any county, city, or subdivision thereof which may
be payable by reason of the sale of all or any portion of the property under
this Agreement shall be borne by Seller, and Seller agrees to reimburse
Purchaser on demand for any such tax. Each party shall pay for his own
attorney's fees.
ARTICLE VIII. COVENANTS BY SELLER
Section 8.01 Covenant for cooperation;
Seller covenants and agrees that upon execution of this Agreement,
Seller will cooperate with Purchaser, allowing Purchaser to conduct such
examinations and studies as Purchaser shall desire to conduct with respect to
Seller's assets and business. Further, Seller shall help and assist Purchaser in
loading copying and making useful all of the records of Seller's operation, so
that upon Settlement, the transition shall be a smooth as possible. Seller
agrees that immediately upon Settlement.
Section 8.02 Covenant to maintain business;
Seller covenants that it will not do anything to harm or impair the
business of the agency or that would directly or indirectly cause the agency to
lose business or contracts.
ARTICLE IX. AGREEMENT FOR POST-SETTLEMENT OCCUPANCY
Purchaser intends to find suitable space in the Berkeley Springs area
for the operation of Purchaser's insurance agency. However, Seller and Purchaser
agree that after Settlement, if the same should be necessary, Seller will permit
for a period of time not to exceed sixty (60) days Purchaser to occupy as a
lessee or tenant the space currently utilized by Seller within the Citizens
National Bank Building located at 000 X. Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx,
Xxxx Xxxxxxxx. The terms of such occupancy will be set forth in a separate lease
Agreement.
ARTICLE X. REMEDIES
Section 10.01 Seller's remedies
Upon default by Purchaser, as default is defined above, Seller shall be
entitled to proceed at law or in equity against Purchaser for all sums to which
Seller is entitled under this Agreement.
11
Section 10.02 Purchaser's remedies
Upon default by Seller, as default is defined above, Purchaser shall be
entitled to proceed at law or in equity for any kind of legal or equitable
relief to which Purchaser may be entitled.
Section 10.03 Remedies available to Intended Third-Party Beneficiary
Upon default by Purchaser in his obligation to provide continuing
discounts to Citizens National Bank of Berkeley Springs for its CNB Group Plan,
as required by Section 5.03 of this Agreement, Citizens National Bank shall be
entitled to proceed at law or in equity against Purchaser for all sums and
discounts to Citizens National Bank of Berkeley Springs is entitled under this
Agreement.
Section 10.04 Attorney's fees
In the event that a party is adjudged by a court of competent
jurisdiction to have defaulted in this Agreement, then the non-breaching party
or the intended third-party beneficiary shall be entitled to recover his
reasonable costs and expenses, including all of his reasonable attorneys' fees.
Section 10.05 Default not waived
Neither party hereto shall be deemed to have waived any default solely
as a result of the failure to act to seek redress. Failure by one party to act
on one or more occasions when the other party shall be in default shall not
constitute a waiver or bar to the right of action for subsequent acts of
default.
ARTICLE XI. MISCELLANEOUS
Section 11.01 Integration of Agreement
This written Agreement contains the entire Agreement and understanding
of the parties hereto. No prior or contemporaneous Agreements or understandings,
whether written or oral, shall become a part of this Agreement.
Section 11.02 Modification
This Agreement may be modified only by written instrument signed by the
party to be charged with the modification.
Section 11.03 Binding nature of Agreement
This Agreement shall inure to the benefit of, and be binding upon, the
heirs, administrators, successors and assigns of each of the parties hereto, as
well as the successors and assigns of any specifically intended third-party
beneficiaries of this Ageement.
Section 11.04 Contract freely assignable by Purchaser
The Purchaser shall have the freedom to assign this contract to another
legal entity that it may form for the purpose of operating an insurance agency.
In such event, the Purchaser shall still be liable and obligated to pay Seller
all sums due under this contract.
12
Section 11.05 Indemnification
Purchaser shall indemnify and hold Seller harmless from any and all
liability whatsoever, whether in contract tort or otherwise, which liability
arises or has arisen out of any actions or omissions on the part of Purchaser in
the performance of Purchaser's obligations under this contract.
Section 11.06 Provisions of Agreement to survive Settlement
The provisions of this Agreement shall survive Settlement. All of the
obligations of the Seller and the Purchaser as set forth herein shall remain and
continue, notwithstanding the fact that Settlement may have occurred. Neither
party hereto waives any right to assert a remedy or to enforce this Agreement by
virtue of the fact that he shall have gone to Settlement.
Section 11.07 Article, section and paragraph headings
Captions and paragraph headings used herein are for convenience only
and are not a part of this Agreement and shall not be used in construing it.
Section 11.08 Severability
If any provision of this Agreement shall be construed by a court of
competent jurisdiction to be unlawful or unenforceable, such a finding shall not
have the effect of vitiating the remainder of this Agreement. In that regard,
the provisions of this Agreement are severable.
Section 11.09 Gender, number, tense, and person
Whenever the context shall require, masculine pronouns used herein
shall be deemed and construed to include the feminine and the neuter, feminine
pronouns shall be deemed to include the masculine and neuter, and neuter
pronouns shall bee deemed to include the masculine and feminine; the singular
shall be deemed to include the plural, and the plural shall be deemed to include
the singular. Words used in this Agreement in the present tense include the
future as well as the present.
IN WITNESS WHEREOF, the parties have caused the following signatures
and seals to be affixed to this Agreement this 27th day of April, 2006:
Seller: Purchaser:
CNB Insurance Services, Inc. Maiden Financial, Inc.
by:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxx
------------------------------ ----------------------------
President President
13
EXHIBIT "A" DELINEATION OF
AGENCY'S CONTRACTS WITH INSURERS
Company/Companies Effective date
----------------- --------------
1) Progressive Companies November 7, 2005
2) Shelby / Vesta January 1, 2004
3) Xxxxxx & Mechanics Mutual March 13, 2002
Insurance Company
4) Farmers Mutual Insurance Company May 2, 2003
5) Municipal Mutual Insurance Company December 10, 1998
6) Insurance Intermediaries Inc. undated
7) West Virginia National Auto April 22, 1999
Insurance Company
8) Mountain State Blue Cross March 7, 2003
and Blue Shield
14
EXHIBIT "B" DESCRPITION OF TANGIBLE PERSONAL PROPERTY
Copies of the Seller's files
Copies of all of the Seller's rate guides and other materials from the Companies
Copies of all of the Seller's records regarding business written
15
