1
------------------------------------------------------------------------------
------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
among
THE TENERE GROUP, INC.
and
FLORIDA PHYSICIANS INSURANCE COMPANY, INC.
and
TGI ACQUISITION CORPORATION
-----------------
October 2, 1998
-----------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger is made this 2nd day of October,
1998, among FLORIDA PHYSICIANS INSURANCE COMPANY, INC., a Florida corporation
("FPIC"), TGI ACQUISITION CORPORATION, a Florida corporation ("Acquisition
Corporation"), and THE TENERE GROUP, INC., a Missouri corporation ("Tenere").
P R E A M B L E
The Board of Directors of FPIC, Acquisition Corporation and Tenere
deem it in the best interests of each corporation, and in the best interest of
their respective shareholders that FPIC acquire all of the outstanding stock of
Tenere through the merger of Acquisition Corporation into Tenere in accordance
with the terms and conditions hereinafter set forth (the "Merger").
ACCORDINGLY, FPIC, Acquisition Corporation and Tenere hereby agree as
follows:
ARTICLE 1
THE MERGER
Section 1.1 Surviving Corporation. In accordance with the provisions
of this Agreement, the General and Business Corporation Law of Missouri (the
"GBCLM") and the Florida Business Corporation Act (the "FBCA"), at the
Effective Time (as defined in Section 1.6), Acquisition Corporation shall be
merged with and into Tenere, and Tenere shall be the surviving corporation
(hereinafter sometimes referred to as the "Surviving Corporation") and shall
continue its corporate existence under the laws of the State of Missouri. The
name of the Surviving Corporation shall be "The Tenere Group, Inc." At the
Effective Time, the separate existence of Acquisition Corporation shall cease.
Section 1.2 Articles of Incorporation. The Articles of Incorporation
of Tenere, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation until thereafter amended
as provided by law.
Section 1.3 Bylaws. The Bylaws of Tenere, as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving Corporation
until thereafter amended as provided by law.
Section 1.4 Directors. The persons who are serving as directors of
Tenere immediately prior to the Effective Time shall be the directors of the
Surviving Corporation and shall hold office from the Effective Time until their
resignation or their respective successors are duly elected or appointed and
qualify in the manner provided in the Articles of Incorporation and Bylaws of
the Surviving Corporation, or as otherwise provided by law.
3
Section 1.5 Officers. The persons who are serving as officers of
Acquisition Corporation immediately prior to the Effective Time shall continue
in their respective offices as the officers of the Surviving Corporation and
shall hold such offices from the Effective Time until their respective
successors are duly elected or appointed and qualify in the manner provided in
the Articles of Incorporation and Bylaws of the Surviving Corporation, or as
otherwise provided by law.
Section 1.6 Effective Time. The Merger shall become effective at the
time of filing of Articles of Merger (substantially in the form of Exhibit 1.6
hereto) (the "Articles of Merger") with the Secretary of State of Missouri and
the Department of State of the State of Florida, in accordance with the
provisions of Section 351.440 of the GBCLM and Section 607.1105 of the FBCA,
respectively, or at the time specified as the effective time in the Articles of
Merger. The date and time when the Merger becomes effective are herein
referred to as the "Effective Time".
ARTICLE 2
EFFECT OF THE MERGER ON SHAREHOLDERS AND OPTION HOLDERS
Section 2.1 Conversion of Tenere's Common Stock and Options and
Acquisition Corporation's Common Stock.
(a) Tenere's Common Stock. At the Effective Time, each
share of common stock, $.01 par value per share, of Tenere ("Tenere's Stock")
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
converted into the right to receive and be exchangeable for the Per Share
Amount in cash. For purposes of this Agreement, the "Per Share Amount" shall
mean the quotient, rounded to four decimal places, obtained by dividing (i)
$20,600,000 by (ii) the sum of the aggregate number of shares of Tenere's Stock
outstanding immediately prior to the Effective Time and the aggregate number of
shares of Tenere's Stock underlying all Options (as defined in Section 2.1(c)
hereof) outstanding immediately prior to the cancellation of Options
contemplated by Section 2.1(c) hereof.
(b) Acquisition Corporation's Common Stock. At the
Effective Time, each share of common stock, $.01 par value per share, of
Acquisition Corporation ("Acquisition Corporation's Stock") issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and exchangeable for one share of issued, outstanding, fully paid and
nonassessable share of common stock, $.01 par value per share, of the Surviving
Corporation. All certificates that immediately prior to the Effective Time
represented the outstanding common stock of Acquisition Corporation shall be
deemed for all purposes to represent the number of shares of common stock of
the Surviving Corporation into which such common stock of Acquisition
Corporation has been converted pursuant to this Section 2.1(b).
2
4
(c) Tenere Options. Prior to the Closing, Tenere shall
cause each outstanding option to purchase shares of Tenere's Stock (an
"Option"), whether or not then exercisable, to be canceled and converted into
the right to receive an amount in cash equal to the product, rounded to four
decimal places, of (i) the amount by which the Per Share Amount exceeds the
exercise price per share subject to the Option and (ii) the number of shares
subject to the Option.
Section 2.2 Dissenting Shares. Notwithstanding anything in this
Agreement to the contrary, shares of Tenere's Stock that are issued and
outstanding immediately prior to the Effective Time and that are held by a
Tenere shareholder who (i) does not vote such shares in favor of the Merger and
(ii) files with Tenere a written objection to the Merger pursuant to the rights
granted a dissenting shareholder under the GBCLM (the "Dissenting Shares")
shall not be converted into the Per Share Amount as provided for in Section 2.1
(a) hereof but, rather, shall be converted into the right to receive such
consideration as may be determined to be due with respect to such Dissenting
Shares in accordance with the GBCLM; provided however, that if any holder of
Dissenting Shares shall subsequently be deemed to not be entitled to
dissenter's rights, any of the Dissenting Shares held by such shareholder shall
thereupon be deemed to have been converted into the Per Share Amount as
provided for in Section 2.1(a) hereof.
Section 2.3 Exchange of Shares and Options.
(a) Exchange Agent. At or before the Effective Time, FPIC
shall, or FPIC shall cause Acquisition Corporation to, deposit in immediately
available funds with an exchange agent for Tenere's Stock and the Options,
which exchange agent shall be selected by FPIC and shall be reasonably
satisfactory to Tenere (the "Exchange Agent"), an amount (the "Exchange Fund")
to be distributed to the Shareholders and the Optionees (as such terms are
defined in Section 2.3(b)) that shall equal and be divided for payment with
respect to Tenere's Stock and the Options as follows: (i) an aggregate amount
for Tenere's Stock that is equal to the product of (x) the number of shares of
Tenere's Stock issued and outstanding at the Effective Time (the "Tenere Stock
Outstanding") multiplied by (y) the Per Share Amount, plus (ii) an aggregate
amount for the Options that is equal to (x) the product of the Per Share Amount
and the aggregate number of shares of Tenere's Stock underlying all of the
Options, minus (y) the sum of the amounts obtained for each Option by
multiplying the exercise price per share of each Option by the number of shares
of Tenere's Stock underlying each Option (the "Aggregate Option Exercise
Price"). The parties shall use the information and amounts designated on
Schedule 4.1(e) (as revised pursuant to Section 3.9) as in effect at the
Closing Date to determine the Shareholders, the Optionees, the Tenere Stock
Outstanding, the Options and the Aggregate Option Exercise Price. The exchange
agreement to be entered into by FPIC or Acquisition Corporation with the
Exchange Agent shall provide that out of the Exchange Fund, the Exchange Agent
shall, pursuant to irrevocable instructions, make the payments referred to in
Sections 2.1(a) and 2.2 and 2.3 to each Shareholder and Optionee listed on
Schedule 4.1(e), as such Schedule may be revised in accordance with Section
3.9. Any amount remaining in the Exchange Fund after one year after the
Effective Time may be transferred to the Surviving Corporation at its option;
provided, however, that the
3
5
Surviving Corporation shall thereafter be liable for the cash payments required
by Sections 2.1(a), 2.2 and 2.3. FPIC shall, or shall cause the Exchange Agent
or the Surviving Corporation, as the case may be, to, make the payments required
by Sections 2.1(a), 2.2 and 2.3 solely to the Shareholders and the Optionees
listed on Schedule 4.1(e) (as revised pursuant to Section 3.9) as in effect at
the Effective Time.
(b) Payment Procedure. As promptly as practicable, but
not later than five business days, after the Effective Time, the Exchange Agent
shall mail and make available to each holder of record ("Shareholder") of a
certificate or certificates that immediately prior to the Effective Time
represented outstanding shares of Tenere's Stock (a "Certificate") and to each
holder of record of an Option (an "Optionee"), a letter of transmittal that
shall specify that delivery shall be effected, and risk of loss and title to
the Certificates and Options shall pass, only upon delivery of the Certificates
and the Options. Upon surrender to the Exchange Agent of a Certificate for
cancellation together with such letter of transmittal, duly executed, the
Exchange Agent shall promptly pay out to the persons entitled thereto the
amount, rounded to the nearest cent, determined by multiplying (x) the number
of shares of Tenere's Stock represented by the Certificate by (y) the Per Share
Amount. Upon surrender to the Exchange Agent of an Option together with such
letter of transmittal, duly executed, the Exchange Agent shall promptly pay out
to the Optionee the amount, rounded to the nearest cent, determined by
multiplying (x) the amount by which the Per Share Amount exceeds the exercise
price per share subject to such Option and (y) the number of shares subject to
such Option. No interest shall be paid or accrued on the cash payable upon
the surrender of a Certificate or an Option. If a Shareholder or an Optionee
requests that payment be made to a person other than the one in whose name the
Certificate or Option surrendered, as the case may be, is registered, it shall
be a condition of payment that the Certificate or Option so surrendered shall be
properly endorsed or otherwise in proper form for transfer and that the person
requesting such payment shall pay any transfer or other taxes required by reason
of the payment to a person other than the registered holder of the Certificate
or Option surrendered or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not applicable. Until surrendered
in accordance with the provisions of this Section 2.3(b), (i) each Certificate
shall represent for all purposes only the right to receive, upon such surrender,
an amount in cash rounded to the nearest cent, equal to the Per Share Amount per
share of Tenere's Stock being converted and (ii) each Option shall represent for
all purposes only the right to receive, upon such surrender, an amount equal to
the product, rounded to the nearest cent, of (x) the amount by which the Per
Share Amount exceeds the exercise price per share subject to the Option and (y)
the number of shares subject to the Option.
(c) Lost, Stolen or Destroyed Certificates or Options.
In the event any Certificate or Option shall have been lost, stolen or
destroyed, upon delivery to the Surviving Corporation of an affidavit of that
fact by the person claiming such Certificate or Option to be lost, stolen or
destroyed and the delivery of such other documents as the Surviving Corporation
may reasonably request, the Surviving Corporation shall deliver or cause to be
delivered the amount of money deliverable in respect of such lost, stolen or
destroyed Certificate or Option as determined in accordance with this Article
2; provided, however, that the Board of Directors of
4
6
the Surviving Corporation may, as a condition precedent to the delivery thereof,
require the owner of such lost, stolen or destroyed Certificate or Option to
provide to the Surviving Corporation a bond in favor of the Surviving
Corporation, from an issuer satisfactory to the Surviving Corporation and in an
amount equal to the value of the shares of Tenere's Stock represented by such
Certificate or the value of such Option, as the case may be, at the Effective
Time or such other security as the Surviving Corporation shall reasonably deem
necessary, as indemnity against any claim that may be made against the Surviving
Corporation with respect to the Certificate or Option alleged to have been lost,
stolen or destroyed.
Section 2.4 No Further Rights. From and after the Effective
Time, the holders of Certificates shall cease to have any rights as
shareholders of the Surviving Corporation, except as provided herein or by law.
Section 2.5 Closing of Tenere's Stock Transfer Books. After the
Effective Time, there shall be no transfers on the stock transfer books of the
Surviving Corporation of any shares of Tenere's Stock that were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be canceled
and exchanged for the consideration payable pursuant to this Article 2.
ARTICLE 3
CERTAIN AGREEMENTS
Section 3.1 Due Diligence. FPIC shall have the right from the
date hereof and continuing until the Closing Date to inspect the books and
records and assets of Tenere and the Subsidiaries, and Tenere shall cooperate,
and cause the Subsidiaries to cooperate, with such investigation in accordance
with Section 5.1(a) hereof.
Section 3.2 Communications With Agents, Employees or
Policyholders. Tenere shall not, and shall cause the Subsidiaries and any
other Affiliates (as defined in Section 3.4(a)) not to, communicate with any
insurance agents or policyholders of Intermed, Interlex or any employees of ISI
regarding this Agreement or the transactions contemplated herein, other than
communications that are approved by FPIC or oral responses to unsolicited
inquiries and, with respect to communications with employees, those
communications necessary in connection with the consummation of the
transactions contemplated by this Agreement. FPIC shall have the right to
participate in the communications permitted by this Section.
Section 3.3 Shareholder Approval. As soon as reasonably
practicable, Tenere shall send notice to the Shareholders and conduct a
Shareholders meeting or otherwise obtain Shareholder approval for this Agreement
and the Merger in accordance with the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the "Exchange
Act"), the GBCLM and any other applicable laws. Tenere shall permit FPIC to
review all materials to be sent to the Shareholders in connection with obtaining
such Shareholder approval. All such
5
7
materials and the methods of solicitation shall be submitted to FPIC for
approval, which approval shall not be unreasonably withheld. Subject to Section
3.4, Tenere shall recommend to the Shareholders that the Shareholders approve
this Agreement and the Merger. Tenere shall from time to time notify FPIC of the
percentage of the outstanding shares of Tenere's Stock as to which Shareholders
have delivered to Tenere written objection to the Merger pursuant to their
dissenters' rights under Section 351.455 of the GBCLM and shall immediately
notify FPIC if Shareholders holding more than ten percent of the outstanding
shares of Tenere's Stock deliver such written objection.
Section 3.4 No Solicitation.
(a) No Solicitation by Tenere. Subject to Section 3.4(c)
hereof, Tenere shall not, nor shall it permit any of the Subsidiaries or its
other Affiliates to, nor shall it authorize or permit any officer, director,
employee, investment banker, attorney or other advisor, agent or representative
of Tenere or any of the Subsidiaries to, directly or indirectly, (i) solicit,
initiate or encourage the submission of any Tenere Takeover Proposal (as
hereinafter defined), (ii) enter into any agreement with respect to any Tenere
Takeover Proposal, (iii) initiate any discussions or negotiations regarding any
proposal that constitutes, or may reasonably be expected to lead to, any Tenere
Takeover Proposal or (iv) furnish any information with respect to the making of
any proposal that constitutes, or may reasonably be expected to lead to, any
Tenere Takeover Proposal. For purposes of this Agreement, a "Tenere Takeover
Proposal" means (i) any proposal or offer, other than a proposal or offer by
FPIC or any of its Affiliates (as defined below), for a merger or other
business combination involving Tenere or any of the Subsidiaries, directly or
indirectly, (ii) any proposal or offer, other than a proposal or offer by FPIC
or any of its Affiliates, to acquire from Tenere or any of its Affiliates in
any manner, directly or indirectly, any of the capital stock of Tenere or any
of the Subsidiaries or 10% or more of the assets of Tenere or any of the
Subsidiaries, (iii) any proposal or offer, other than a proposal or offer by
FPIC or any of its Affiliates, to acquire from the shareholders of Tenere by
tender offer, exchange offer or otherwise any of Tenere's Stock or (iv) any
proposal or offer, other than a proposal or offer by FPIC or any of its
Affiliates, to acquire the right to vote 50% or more of the capital stock of
Tenere or any of the Subsidiaries. For purposes of this Agreement, an
"Affiliate" of any person or entity means any other person or entity that
directly or indirectly controls, is controlled by or is under common control
with such person or entity, whether through equity ownership, voting rights or
otherwise.
(b) No Change of Approval. Subject to Section 3.4(c)
hereof, neither Tenere, the Board of Directors of Tenere nor any committee
thereof shall (i) withdraw or modify, or propose to withdraw or modify, the
approval or recommendation by Tenere, the Board of Directors of Tenere or any
committee thereof of this Agreement or the Merger or take any action having
such effect or (ii) announce, approve or recommend any Tenere Takeover
Proposal.
(c) Tenere Superior Proposal. Notwithstanding the
foregoing, nothing contained in this Agreement shall prohibit the Board of
Directors of Tenere from furnishing
6
8
information to, or entering into discussions or negotiations with, any person or
entity that makes an unsolicited Tenere Takeover Proposal if: (A) the Board of
Directors of Tenere, after consultation with and receiving the advice of its
outside legal counsel, determines in good faith that such action is necessary or
required for the Board of Directors of Tenere to comply with its fiduciary
duties to the Shareholders under applicable law, (B) prior to furnishing such
information to, or entering into discussions or negotiations with, such person
or entity, Tenere discloses to FPIC that it is furnishing information to, or
entering into discussions or negotiations with, such person or entity, which
notice shall describe the terms thereof, (C) prior to furnishing such
information to such person or entity, Tenere receives from such person or entity
an executed confidentiality agreement with terms not more favorable to such
person than the terms contained in the Confidentiality Agreement between FPIC
Insurance Group, Inc. and Tenere and (D) Tenere keeps FPIC informed promptly of
the status (including the terms) of any such discussions or negotiations. In
addition, notwithstanding the foregoing, if the Board of Directors of Tenere
receives an unsolicited Tenere Takeover Proposal that, in the exercise of its
fiduciary obligations (as determined in good faith after consultation with
outside legal counsel), it determines to be a Tenere Superior Proposal (as
hereinafter defined), the Board of Directors of Tenere may withdraw or modify
its approval or recommendation of this Agreement or the Merger and may (subject
to the following sentence) terminate this Agreement, in each case at any time
after the fifth business day following FPIC's receipt of written notice (a
"Tenere Notice of Superior Proposal") advising FPIC that the Board of Directors
of Tenere has received a Tenere Takeover Proposal that it has determined to be a
Tenere Superior Proposal, specifying the principal terms and conditions of such
Tenere Superior Proposal and identifying the person making such Tenere Superior
Proposal. For purposes of this Agreement, a "Tenere Superior Proposal" means any
bona fide Tenere Takeover Proposal to merge or combine with Tenere or to
acquire, directly or indirectly, more than 50% of Tenere's Stock or of
Intermed's and Interlex' voting stock then outstanding or a material amount of
the assets of Tenere and the Subsidiaries, taken as a whole, on terms that the
Board of Directors of Tenere determines in its good faith reasonable judgment
(based on the written advice of a financial advisor of nationally recognized
reputation) to be materially more favorable to the Shareholders than the Merger.
(d) Termination Upon Change. If Tenere, the Board of
Directors of Tenere or any committee thereof shall (i) withdraw or modify the
approval or recommendation by Tenere, the Board of Directors of Tenere or any
such committee of this Agreement or the Merger or take any action having such
effect, or (ii) announce, approve or recommend any Tenere Takeover Proposal,
FPIC may terminate this Agreement.
(e) Notification by Tenere. In addition to the other
obligations of Tenere set forth in this Section 3.4, Tenere shall promptly
advise FPIC orally and in writing of the receipt of any Tenere Takeover
Proposal or any proposal, discussion or overture that might lead to a Tenere
Takeover Proposal.
(f) Breakup Fee. In the event Tenere, its Board of
Directors or a committee thereof or any representative or Affiliate of Tenere
shall (i) withdraw or modify the approval or
7
9
recommendation of approval of this Agreement or the Merger by Tenere or its
Board of Directors, or a committee thereof, or take any action having such
effect, or (ii) approve or recommend, or propose to approve, recommend, present
or otherwise disclose in any manner to the Tenere shareholders (including any
recommendation, presentation, disclosure or approval contemplated by Rule
14e-2(a) of the Exchange Act), any Tenere Takeover Proposal, and either (i) the
shareholders of Tenere do not approve the Merger or (ii) Tenere or FPIC
terminates this Agreement pursuant to this Section 3.4, then Tenere shall
immediately thereafter pay FPIC a fee of $600,000 in cash.
Section 3.5 Employee Matters. Prior to the Closing, Tenere shall (i)
terminate or cause to be terminated the employment of such of the Companies'
employees as FPIC shall specify to Tenere and (ii) (a) pay or cause to be paid
to any such terminated employees who have Employment Agreements with a Company
(as specified in Schedule 4.1(ff) to this Agreement) the amounts required to be
paid to such employees arising from such terminations under such Employment
Agreements or the Companies' existing benefit plans or arrangements or
otherwise required by applicable law and (b) pay or cause to be paid to any
such terminated employees who do not have employment agreements with a Company
the amounts, if any, required to be paid to such employees arising from such
terminations under the Companies' existing policies, benefit plans or
arrangements or otherwise required by applicable law. All amounts required to
be paid pursuant to the immediately preceding sentence shall be reflected on
the Companies' books prior to the Closing. Tenere shall use commercially
reasonable efforts to cause each employee of a Company who FPIC desires to
remain employed by that Company following the Closing to agree prior to the
Closing (which agreement shall be pursuant to a written agreement if FPIC so
elects) to remain so employed subsequent to the Closing.
Section 3.6 Certain Adjustments. Prior to the Closing, Tenere
shall cause Intermed and Interlex to make such conforming adjustments to their
loss reserves and shall make or cause to be made such other adjustments to its
and the Subsidiaries books and financial statements as FPIC and its advisors
deem appropriate; provided, that such adjustments shall not violate generally
accepted accounting principles ("GAAP").
Section 3.7 Reinsurance Agreements. FPIC and Tenere shall in good
faith attempt to agree upon terms pursuant to which Intermed's and Interlex'
existing reinsurance agreements shall be terminated as of the Closing Date and
replaced with mutually acceptable alternative reinsurance arrangements. In the
event FPIC and Tenere so mutually agree, they shall cooperate in good faith to
effect such termination of Intermed's and Interlex' existing reinsurance
agreements and the implementation of such alternative arrangements as of the
Closing Date.
Section 3.8 List of Shareholders and Optionees. At the
Closing, Tenere shall cause its transfer agent to provide to FPIC a certified
list of the Shareholders and the Optionees as of the Closing.
8
10
Section 3.9 Directors' and Officers' Indemnification. From and after
the Effective Time, FPIC shall cause to be maintained all duties and
obligations of indemnification of Tenere and the Subsidiaries pertaining to the
period prior to the Effective Time in favor of employees, agents, directors or
officers of Tenere and each of the Subsidiaries arising by virtue of its
Articles of Incorporation or Bylaws or arising by operation of applicable law,
and shall cause such duties and obligations to continue in full force and
effect for so long as they would (but for the Merger) otherwise survive and
continue in full force and effect.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of Tenere. Tenere
represents, warrants and, to the extent that an item relates to a future time
period, covenants to FPIC and Acquisition Corporation as follows:
(a) Tenere Organization and Good Standing; Authority to
Conduct Business. Tenere is a corporation duly organized, validly existing and
in good standing under the laws of the State of Missouri. Tenere has all
requisite corporate power and authority to carry on its businesses as presently
conducted and to own or lease and to operate its properties as currently
operated. The copies of the Articles of Incorporation and all amendments
thereto and the Bylaws and all amendments thereto of Tenere, which have
heretofore been delivered to FPIC, are true and complete. Tenere is not in
violation of any term of its Articles of Incorporation or Bylaws.
(b) Power and Authority. Tenere has all requisite power
and authority to execute, deliver and, subject to the approval of this
Agreement by the Shareholders, perform this Agreement, the Articles of Merger
and any other agreements or instruments contemplated hereby to be executed by
it. The execution, delivery and performance by Tenere of this Agreement, the
Articles of Merger and any other agreements or instruments contemplated hereby
to be executed by it have been duly authorized by all requisite corporate
action on behalf of Tenere and except for obtaining the approval of this
Agreement by the Shareholders, no other authorizations or approvals by the
Board of Directors or Shareholders are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement
constitutes, and each of any other agreements or instruments contemplated
hereby to be executed by Tenere will constitute when executed and delivered,
valid and legally binding obligations of Tenere enforceable against it in
accordance with its terms, except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors rights generally and general principles of equity.
(c) No Conflicts. The execution and delivery of this
Agreement and any other agreements and instruments contemplated hereby and the
consummation of the transactions contemplated hereby and thereby by Tenere in
accordance with the terms hereof and thereof, upon receipt of the consents and
approvals contemplated by Section 4.1(d), will not violate any existing
9
11
provision of the Articles of Incorporation, Bylaws or any other organizational
documents of Tenere, Intermed, Interlex, ISI or any other Subsidiary or of any
law or violate any existing term or provision of any order, writ, judgment,
injunction or decree of any court or any other governmental department,
commission, board, bureau, agency or instrumentality applicable to Tenere,
Intermed, Interlex, ISI or any other Subsidiary or conflict with or result in a
breach of any of the terms, conditions or provisions of any agreement to which
Tenere, Intermed, Interlex, ISI or any other Subsidiary is a party, or by
which any of their respective properties are bound, or constitute an event that
might permit an early termination of or otherwise materially affect any such
agreement.
(d) Consents and Approvals. Except as set forth on
Schedule 4.1(d), no consent, license, approval, order or authorization of, or
registration, declaration or filing with, any governmental authority, agency,
bureau or commission, or any third party is required to be obtained or made by
Tenere, Intermed, Interlex, ISI or any other Subsidiary in connection with the
execution, delivery, performance, validity and enforceability of this Agreement
or any other agreements and instruments contemplated hereby or the conversion
of the shares of Tenere's Stock.
(e) Capital Structure of Tenere. The authorized capital
stock of Tenere consists solely of 7,000,000 shares of Common Stock, par value
$.01 per share, of which 1,999,774 shares are issued and outstanding (the
"Outstanding Tenere Shares"), and 500,000 shares of Preferred Stock, par value
$.01 per share, none of which shares are issued and outstanding. The
Outstanding Tenere Shares constitute the only issued and outstanding capital
stock of Tenere. All of the Outstanding Tenere Shares are owned of record as
of the date of this Agreement by the shareholders listed on Schedule 4.1(e) to
this Agreement. All of the Outstanding Tenere Shares have been duly authorized
and are validly issued, fully paid and nonassessable, and, except as listed on
Schedule 4.1(e), there are no existing or outstanding securities convertible
into capital stock of Tenere, or options, warrants, calls, commitments, or
agreements, other than this Agreement, of any character that relate to the
authorization, issuance, delivery, sale, purchase or redemption by Tenere of
shares of capital stock of Tenere or that require any payments in any manner
indexed or otherwise pertaining to capital stock of Tenere.
(f) Subsidiaries. Each corporation, partnership, joint
venture or other entity in which Tenere owns directly or indirectly a voting or
other equity interest (each a "Subsidiary") is set forth on Schedule 4.1(f),
and except as set forth therein, Tenere has no Subsidiaries. Tenere owns
beneficially and of record all of the outstanding capital stock of each
Subsidiary. The authorized capital stock of Intermed consists solely of
800,000 shares of Common Stock, par value $1.00 per share, all of which shares
are issued and outstanding and owned beneficially and of record by Tenere. The
authorized capital stock of Interlex consists solely of 800,000 shares of
Common Stock, par value $1.00 per share, all of which shares are issued and
outstanding and owned beneficially and of record by Intermed. The authorized
capital stock of ISI consists solely of 300 shares of Common Stock, par value
$100.00 per share, of which Five shares are issued and outstanding and owned
beneficially and of record by Intermed. There are no outstanding rights or
options to acquire, nor any outstanding securities convertible into capital
stock of any class of
10
12
any Subsidiary. The authorized capital stock of Trout Insurance Services, Inc.
("Trout") consists solely of 30,000 shares of common stock, par value $1.00 per
share, of which 500 shares are issued and outstanding and all of which 500
shares are owned beneficially and of record by Intermed. All of the issued and
outstanding shares of capital stock of each Subsidiary have been duly authorized
and validly issued and are fully paid and nonassessable. All such shares are
free and clear of any and all liens, charges, security interests and other
encumbrances and claims and none of such shares is the subject of any agreement
under which any such lien, charge, security interest or other encumbrance or
claim might arise. The copies of the Articles of Incorporation and all
amendments thereto and of the Bylaws and all amendments thereto of each
Subsidiary, which have heretofore been delivered to FPIC, are true and complete.
No Subsidiary is in violation of any term of its Articles of Incorporation or
Bylaws.
(g) Organization and Good Standing of ISI; Authority to
Conduct Business. ISI is a corporation duly organized, validly existing and in
good standing under the laws of the State of Missouri. ISI has all requisite
corporate power and authority to carry on its business as presently conducted
and to own or lease and to operate its properties as currently operated.
(h) Organization and Good Standing of Intermed; Authority
to Conduct Business. Intermed is a stock insurance company, duly organized,
validly existing and in good standing under the laws of the State of Missouri.
Intermed has all requisite corporate power and authority to carry on its
business as presently conducted and to own or lease and to operate its
properties as currently operated. Intermed is duly licensed and in good standing
to write the lines of insurance and otherwise to do business in the states and
jurisdictions as set forth in Schedule 4.1(h) hereto. Tenere has delivered to
FPIC correct and complete copies of all of the insurance licenses of Interlex
certified by the Secretary of Intermed, all of which are in full force and
effect. Intermed has full power and authority to write all the lines of
insurance shown on the insurance licenses of Intermed. Intermed is not
transacting any insurance or reinsurance or other business in any state
requiring a license therefor in which it is not so licensed.
(i) Organization and Good Standing of Interlex; Authority
to Conduct Business. Interlex is a stock insurance company, duly organized,
validly existing and in good standing under the laws of the State of Missouri.
Interlex has all requisite corporate power and authority to carry on its
business as presently conducted and to own or lease and to operate its
properties as currently operated. Interlex is duly licensed and in good
standing to write the lines of insurance and otherwise to do business in the
states and jurisdictions as set forth in Schedule 4.1(i) hereto. Tenere has
delivered to FPIC correct and complete copies of all of the insurance licenses
of Intermed certified by the Secretary of Interlex, all of which are in full
force and effect. Interlex has full power and authority to write all the lines
of insurance shown on the insurance licenses of Interlex. Interlex is not
transacting any insurance or reinsurance or other business in any state
requiring a license therefor in which it is not so licensed.
11
13
(j) Organization and Good Standing of Trout. Trout is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Missouri. Trout has no assets, no liabilities, and
conducts no business in Missouri or elsewhere.
(k) Tenere Financial Statements. Tenere has delivered to
FPIC complete and correct copies of (i) the audited consolidated balance sheets
of Tenere and the Subsidiaries as of December 31, 1997 and 1996, and the
related audited consolidated statements of income, changes in shareholders'
equity and cash flows for the fiscal years 1997 and 1996, inclusive, together
with the notes thereto, as reported in Tenere's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997 filed with the Securities and Exchange
Commission (the "SEC") under the Exchange Act, in each case accompanied by the
audit reports of KPMG Peat Marwick LLP, independent public accountants with
respect to Tenere (the "Audited Financial Statements"), and (ii) the unaudited
consolidated balance sheet of Tenere and the Subsidiaries and the related
unaudited consolidated statements of income and cash flows as reported in
Tenere's Quarterly Reports on Form 10-Q for the quarters ended March 31 and
June 30, 1998 (the "Quarterly Financial Statements" and collectively with the
Audited Financial Statements, the "Tenere Financial Statements"). Prior to the
Closing, Tenere will deliver to FPIC complete and correct copies of the
unaudited consolidated balance sheet of Tenere and the Subsidiaries and the
related unaudited consolidated statements of income and cash flows as reported
in Tenere's Quarterly Report on Form 10-Q for each subsequent quarter ended at
least 45 days prior to the Closing (the "Additional Financial Statements").
The Tenere Financial Statements (including the notes thereto) have been (and
all Additional Financial Statements delivered to FPIC pursuant to this
Agreement will be), in each such case, prepared in accordance with GAAP applied
on a consistent basis throughout the periods involved (except in the case of
the Quarterly Financial Statements and the Additional Financial Statements, as
permitted by Form 10-Q). The Tenere Financial Statements (including the notes
thereto) present fairly in all material respects (and the Additional Financial
Statements will present fairly in all material respects) the financial
position, the assets and the liabilities (whether absolute, accrued,
contingent, or otherwise) of Tenere and the Subsidiaries as of the respective
dates thereof and the results of operations and changes in shareholders' equity
and cash flows for the respective periods then ended, all in accordance with
GAAP (except in the case of the Quarterly Financial Statements and the
Additional Financial Statements, as permitted by Form 10-Q). The Tenere
Financial Statements (including the notes thereto) comply in all material
respects (and the Additional Financial Statements will comply in all material
respects) with applicable accounting requirements and, with respect to form,
with the rules, regulations and requirements of the SEC with respect thereto.
The books and records of Tenere and the Subsidiaries have been, and are being,
maintained in all material respects in accordance with GAAP and any other
applicable legal and accounting requirements and reflect only actual
transactions. Except as disclosed in the Tenere Financial Statements and
reports delivered pursuant to this Section, neither Tenere nor any of the
Subsidiaries has any debts, obligations or liabilities, contingent or
otherwise, that could result in a Material Adverse Effect with respect to
Tenere or any of the Subsidiaries. As used in this Agreement, the term
"Material Adverse Effect" means with respect to any person, any circumstance,
event, change or occurrence that (i) is
12
14
material and adverse to the assets, liabilities, operations, financial
condition, results of operations or business of such person, or (ii) materially
impairs the ability of such person to perform its obligations under this
Agreement; provided, however, that Material Adverse Effect shall not be deemed
to include the impact of (a) changes in generally accepted accounting
principles, (b) changes directly resulting from actions required by this
Agreement or (c) any additional amounts of loss reserves recorded by Tenere or
its Subsidiaries prior to the Closing.
(l) Tenere Undisclosed Liabilities. Neither Tenere nor
any Subsidiary has any liabilities, whether absolute, accrued, contingent,
matured, unmatured, or otherwise, except (a) as and to the extent reflected or
reserved against on the Quarterly Financial Statements dated as of June 30,
1998, and (b) liabilities of a nature similar to those currently reflected on
such financial statements incurred by Tenere solely in the ordinary course of
business and consistent with prior practices that in the aggregate would not
result in a Material Adverse Effect with respect to Tenere or any of the
Subsidiaries, since the date of such financial statements.
(m) Intermed Financial Statements. Tenere has delivered
to FPIC complete and correct copies of (i) the Quarterly Statements of Intermed
filed with the Missouri Department of Insurance (the "Missouri Department") for
the quarters ended March 31 and June 30, 1998 (the "Intermed Quarterly
Statements"), (ii) the Annual Statements of Intermed filed with the Missouri
Department for the years ended December 31, 1995, 1996 and 1997, together with
the exhibits and schedules thereto (the "Intermed Annual Statements"), and
(iii) the audited statutory financial statements of Intermed for the years
ended December 31, 1995, 1996 and 1997, together with the notes thereto (the
"Intermed Audited Statutory Statements"). Tenere will promptly deliver to FPIC
all additional quarterly or annual statements of Intermed filed with the
Missouri Department prior to the Closing.
The (i) statutory financial statements (the "Intermed
Statutory Statements") of Intermed contained in the Intermed Annual Statements
and the Intermed Quarterly Statements and any additional quarterly or annual
Statements of Intermed filed with the Missouri Department and (ii) Intermed
Audited Statutory Statements, and any additional audited financial statements
of Intermed delivered to FPIC, have been (or, if not yet delivered, will be),
in each such case, prepared in accordance with statutory accounting practices
prescribed or permitted by the National Association of Insurance Commissioners,
the Missouri Department and any other applicable regulatory authorities
("SAP"), and such accounting practices have been applied on a consistent basis
throughout the periods involved. The Intermed Audited Statutory Statements and
each of the Intermed Statutory Statements present (or if not yet delivered,
will present) fairly in all material respects the financial position, the
assets and the liabilities (whether absolute, accrued, contingent, or
otherwise) of Intermed as of the respective dates thereof and the results of
operations and changes in capital and surplus and in cash flows for the
respective periods then ended, all in accordance with SAP.
Since June 30, 1998, there has been no material adverse
change in the composition, nature or risk characteristics (credit quality or
otherwise) of Intermed's investment
13
15
portfolio. Except as disclosed in the financial statements and reports delivered
pursuant to this Section, Intermed has no debts, obligations or liabilities,
contingent or otherwise, that could result in a Material Adverse Effect with
respect to Intermed.
All reserves, due and uncollected premiums and other
related items with respect to insurance and annuity contracts as established or
reflected in the Intermed Statutory Statements (i) were determined in
accordance with commonly accepted actuarial standards consistently applied,
(ii) were fairly stated in accordance with sound actuarial principles, (iii)
were based on actuarial assumptions which produce reserves as great as those
called for in any contract provision as to reserve basis and method, and are in
accordance with all other contract provisions and the related reinsurance,
coinsurance, and other similar contracts, (iv) met the requirements of the
insurance laws and regulations of each applicable jurisdiction, and of the
National Association of Insurance Commissioners model regulations and actuarial
guidelines, and all appropriate standards of practice as promulgated by the
Actuarial Standards Board, (v) were computed on the basis of assumptions
consistent with those used in computing the corresponding items in the Intermed
Statutory Statements for the immediately preceding comparable period, and (vi)
made good and sufficient provisions for the total amount of all matured and
actuarially anticipated unmatured benefits, dividends, losses, claims, expenses
and any other obligations and liabilities (whether absolute, accrued,
contingent, or otherwise) of Intermed under all outstanding insurance and
annuity contracts and reinsurance, coinsurance, and other similar contracts
pursuant to which Intermed has or could have any obligation or liability
(whether absolute, accrued, contingent or otherwise) as of the date of such
Intermed Statutory Statements. Intermed owns assets that qualify as legal
reserve assets under the insurance laws and regulations of each applicable
jurisdiction in an amount at least equal to all such required reserves and
other similar amounts.
(n) Intermed Undisclosed Liabilities. Intermed does not
have, and as of the Closing Date will not have, any liabilities, whether
absolute, accrued, contingent, matured, unmatured or otherwise, except (a) as
and to the extent reflected or reserved against on the Intermed Quarterly
Statement for the quarter ended June 30, 1998 and (b) liabilities of a nature
similar to those currently reflected on such Intermed Quarterly Statement
incurred by Intermed solely in the ordinary course of business and consistent
with prior practices that except for liabilities incurred in connection with
insurance polices, would not result in a Material Adverse Effect with respect
to Intermed, since the date of such Intermed Quarterly Statement.
(o) Interlex Financial Statements. Tenere has delivered
to FPIC complete and correct copies of (i) the Quarterly Statements of Interlex
filed with the Missouri Department for the quarters ended March 31 and June 30,
1998 (the "Interlex Quarterly Statements"), (ii) the Annual Statements of
Interlex filed with the Missouri Department for the years ended December 31,
1995, 1996 and 1997, together with the exhibits and schedules thereto (the
"Interlex Annual Statements"), and (iii) the audited statutory financial
statements of Interlex for the years ended December 31, 1995, 1996 and 1997,
together with the notes thereto (the "Interlex Audited Statutory Statements").
Tenere will promptly deliver to FPIC all additional quarterly or annual
statements of Interlex filed with the Missouri Department prior to the Closing.
14
16
The (i) statutory financial statements (the "Interlex
Statutory Statements") of Interlex contained in the Interlex Annual Statements
and the Interlex Quarterly Statements and any additional quarterly or annual
Statements of Interlex filed with the Missouri Department and (ii) Interlex
Audited Statutory Statements any additional audited financial statements of
Intermed delivered to FPIC, have been (or, if not yet delivered, will be), in
each such case, prepared in accordance with SAP, and such accounting practices
have been applied on a consistent basis throughout the periods involved. The
Interlex Audited Statutory Statements and each of the Interlex Statutory
Statements present (or if not yet delivered, will present) fairly in all
material respects the financial position, the assets, and the liabilities
(whether absolute, accrued, contingent, or otherwise) of Interlex as of the
respective dates thereof and the results of operations and changes in capital
and surplus and in cash flows for the respective periods then ended, all in
accordance with SAP.
Since June 30, 1998, there has been no material adverse
change in the composition, nature or risk characteristics (credit quality or
otherwise) of Interlex' investment portfolio. Except as disclosed in the
financial statements and reports delivered pursuant to this Section, Interlex
has no debts, obligations or liabilities, contingent or otherwise, that could
result in a Material Adverse Effect with respect to Interlex.
All reserves, due and uncollected premiums and other
related items with respect to insurance and annuity contracts as established or
reflected in the Interlex Statutory Statements (i) were determined in
accordance with commonly accepted actuarial standards consistently applied,
(ii) were fairly stated in accordance with sound actuarial principles, (iii)
were based on actuarial assumptions that produce reserves as great as those
called for in any contract provision as to reserve basis and method, and are in
accordance with all other contract provisions and the related reinsurance,
coinsurance, and other similar contracts, (iv) met the requirements of the
insurance laws and regulations of each applicable jurisdiction, and of the
National Association of Insurance Commissioners model regulations and actuarial
guidelines, and all appropriate standards of practice as promulgated by the
Actuarial Standards Board, (v) were computed on the basis of assumptions
consistent with those used in computing the corresponding items in the Interlex
Statutory Statements for the immediately preceding comparable period, and (vi)
made good and sufficient provisions for the total amount of all matured and
actuarially anticipated unmatured benefits, dividends, losses, claims, expenses
and any other obligations and liabilities (whether absolute, accrued,
contingent, or otherwise) of Interlex under all outstanding insurance and
annuity contracts and reinsurance, coinsurance, and other similar contracts
pursuant to which Interlex has or could have any obligation or liability
(whether absolute, accrued, contingent or otherwise) as of the date of such
Interlex Statutory Statements. Interlex owns assets that qualify as legal
reserve assets under the insurance laws and regulations of each applicable
jurisdiction in an amount at least equal to all such required reserves and
other similar amounts.
(p) Interlex Undisclosed Liabilities. Interlex does not
have, and as of the Closing Date will not have, any liabilities, whether
absolute, accrued, contingent, matured,
15
17
unmatured or otherwise, except (a) as and to the extent reflected or reserved
against on the Interlex Quarterly Statement for the quarter ended June 30, 1998,
and (b) liabilities of a nature similar to those currently reflected on such
Interlex Quarterly Statement and incurred by Interlex solely in the ordinary
course of business and consistent with prior practices that, except for
liabilities incurred in connection with insurance polices, would not result in a
Material Adverse Effect with respect to Interlex, since the date of such
Interlex Quarterly Statement.
(q) SEC Reports. Tenere has delivered to FPIC a complete
copy of each (i) registration statement, prospectus, report (including but not
limited to reports on Forms 10-K, 8-K and 10-Q), schedule and definitive proxy
statement filed since March 1995 by Tenere with the SEC pursuant to the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Securities Act"), or the Exchange Act (collectively, the
"Tenere Reports") and (b) communication mailed by Tenere to its shareholders
since March 1995 ("Shareholder Communication"). Tenere will promptly deliver
to FPIC a complete copy of each registration statement, prospectus, report,
schedule and definitive proxy statement filed by Tenere with the SEC pursuant
to the Securities Act or the Exchange Act prior to the Closing and each
communication mailed by Tenere to its shareholders prior to the Closing
(collectively, the "Additional Documents"). No such Tenere Report, Shareholder
Communication or Additional Document contained (or will contain) any untrue
statement of a material fact or omitted (or will omit) to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances in which they were (or are) made, not
misleading. Tenere has timely filed all Tenere Reports and other documents
required to be filed by it under the Securities Act or the Exchange Act and
through the Closing Date will timely file all Additional Documents required to
be filed by it under the Securities Act or the Exchange Act. As of their
respective dates, all Tenere Reports complied (and all Additional Documents
will comply) in all material respects with the rules, regulations and
requirements of the SEC with respect thereto.
(r) Intercompany Accounts. Set forth in Schedule 4.1(r)
is a complete and correct list and summary description of all intercompany
accounts payable and receivable ("Intercompany Accounts") as June 30, 1998,
between or among Tenere, Intermed, Interlex, ISI or any Affiliate thereof.
(s) Litigation. Except as set forth in Schedule 4.1(s)
hereto, there is no judicial, administrative or regulatory action, proceeding,
investigation or inquiry or administrative charge or complaint pending or, to
the best of the knowledge of Tenere, threatened, that might have a Material
Adverse Effect (as defined below) on Tenere or any Subsidiary (Tenere and the
Subsidiaries each being sometimes individually referred to herein as a
"Company" and sometimes collectively referred to herein as the "Companies"), or
that might materially adversely affect any registration or insurance license,
or the value or marketability of any of the insurance products of Intermed or
Interlex, or that questions the validity of this Agreement or any action taken
or to be taken by any party pursuant hereto or in connection with the
transactions contemplated hereby.
16
18
(t) Real and Personal Property. Tenere has provided to
FPIC a list and summary description of all real and, as June 30, 1998, tangible
personal property owned by each of the Companies, whether or not used or
proposed to be used in any of the Companies' business (which together with the
additions and deletions thereto in the ordinary course of business as permitted
by this Agreement are hereinafter called the "Assets"). Each Company has, or
prior to the Closing Date will have, good and indefeasible title to the Assets
owned by such Company, free and clear of all liens, security interests and
other encumbrances and claims, except for inchoate liens, liens for taxes not
yet due and statutory liens as to which to the best knowledge of Tenere no
dispute exists. None of the Companies uses or proposes to use any real or
tangible personal property except as set forth in Schedule 4.1(t) or covered by
a lease set forth in Schedule 4.1(u). All of the Assets are or will be, as the
case may be, suitable for their intended use and are in good condition and
repair, subject to ordinary wear and tear. The Assets constitute all of the
real and tangible personal property necessary to conduct the business of each
of the Companies as presently conducted. No real property owned or leased by
any of the Companies is now, nor to Tenere's best knowledge has such property
ever been, used for the generation, storage or disposal of hazardous wastes,
hazardous substances, toxic wastes, petroleum products or other pollutants.
(u) Leases and Rental Contracts. Set forth in Schedule
4.1(u) hereto is a list and summary description of all leases and contracts
under which any of the Companies leases, as lessor or lessee, or rents, any
real or personal property. All such leases and contracts are in full force and
effect without any existing default or breach thereunder.
(v) Contracts. Set forth in Schedule 4.1(v) hereto (with
Section references corresponding to those set forth below) is a complete and
correct list as of the date hereof of all written or oral agreements, contracts
and commitments, with an annual cost or benefit to any of the Companies of,
unless otherwise indicated, $10,000 or more (the "Contracts"), to which any of
the Companies is a party or by which any of the Companies is bound or otherwise
affected as of the date hereof (other than insurance contracts sold by Intermed
or Interlex in the ordinary course of business), including: (i) mortgages,
indentures, security agreements, loan and credit agreements and other
agreements and instruments relating to the borrowing of money or evidence of
credit where any of the Companies is debtor, (ii) agreements or other
arrangements with insurance agents and agencies and third party administrators
pursuant to which Intermed or Interlex or an Affiliate thereof has paid $10,000
or more in commissions or other consideration during the calendar year 1996,
1997 or 1998, (iii) contracts for the provision of data-processing services,
(iv) finder's, franchise, distribution, sales or brokerage agreements, (v)
contracts or options to purchase or sell real property, (vi) contracts for the
purchase of materials, supplies or equipment, or for providing services, (vii)
contracts, arrangements or treaties with any party regarding reinsurance,
excess insurance, ceding of insurance, assumption of insurance, or
indemnification with respect to insurance currently being provided directly or
indirectly by Intermed or Interlex or regarding the management of any portion
of Intermed's or Interlex' business or regarding the sale by Intermed or
Interlex of its products through any other company or the sale by any other
company of its products through it, (viii) contracts with any entity that is an
Affiliate of the Companies or with any officer or director of any of the
Companies or any
17
19
officer or director of any other entity that is an Affiliate of the Companies,
or to the best knowledge of Tenere any corporation controlled by such officer or
director, (ix) agreements and instruments representing loans or commitments to
loan to officers, directors, employees or agents (other than insurance agents)
of any of the Companies or of any entity that is an Affiliate of any of the
Companies, (x) contracts of any kind to which the United States government or
any of its agencies is a party, or under any federal, state or local law,
regulation or executive order, (xi) partnership, joint venture or strategic
alliance agreements of any kind and (xii) other agreements, contracts and
commitments. Tenere has delivered or made available to FPIC complete and correct
copies of all written Contracts together with all amendments thereto and waivers
and consents with respect thereto. In addition, Tenere has made available to
FPIC complete and correct copies of (i) all insurance policy forms used for
products currently marketed by either Intermed or Interlex in its business and
that are currently in force, and (ii) all forms of agreements or other
arrangements with insurance agents and agencies and third party administrators
used by either Intermed or Interlex in its business. All of such Contracts are
in full force and effect and each party thereto has performed in all material
respects all of the obligations required to be performed by it to date and is
not in default thereunder in any material respect. Except as specified on
Schedule 4.1(v), all of such Contracts may be terminated by a Company on thirty
days' or less notice with no penalty to any of the Companies. No Contract to
which any of the Companies is a party, or by which any of the Companies or any
of its respective properties is bound, specifically limits any of the Companies'
freedom to compete in any line of business or with any person or entity. None of
the Companies has outstanding any power of attorney. All contracts, arrangements
or treaties to which either Intermed or Interlex is a party regarding
reinsurance, excess insurance, ceding of insurance, assumption of insurance or
indemnification with respect to insurance are set forth on Schedule 4.1(v)
hereto.
(w) Compliance with Other Instruments and Laws. None of
the Companies is in violation of any term of its charter, articles of
incorporation or bylaws, or of any statute, law, ordinance, rule or regulation
applicable to it or any of its respective properties or of any material
regulatory filing or undertaking of or affecting it or of any judgment, decree
or order in which any such Company is named, or in any violation of any
mortgage, indenture, instrument or agreement relating to indebtedness for
borrowed money or other material instrument, agreement, contract, permit,
concession, grant, franchise, license or other governmental authorization or
approval applicable to it or any of its respective properties. All insurance
licenses referred to in Schedule 4.1(h) and Schedule 4.1(i) hereto and all
material permits, concessions, grants, franchises, other licenses and other
governmental authorizations and approvals necessary for the conduct of the
business of each of the Companies have been duly obtained and are in full force
and effect, and, there are no proceedings pending or, to the best knowledge of
Tenere, threatened, that may result in the revocation, cancellation, or
suspension, or any adverse modification, of any thereof. The execution,
delivery and performance of, and compliance with, this Agreement, and the
consummation of the transactions contemplated hereby by Tenere in accordance
with the terms hereof, will not result in any such violation or be in conflict
with or result in any default under any of the foregoing referred to in this
Section 4.1(w), or result in the creation of any mortgage, pledge, lien, charge
or encumbrance upon any of the properties or assets of any of the Companies
18
20
or the loss, revocation, cancellation, suspension or modification of any
insurance license listed in Schedule 4.1(h) and Schedule 4.1(i) hereto, other
licenses or material contractual rights held by any of the Companies pursuant to
any of the foregoing or result in any such revocation, cancellation, suspension
or modification.
(x) Regulatory Filings. The Companies have filed or
otherwise provided all reports, data, other information and applications
required to be filed with or otherwise provided to the Missouri Department, the
SEC and all other federal, state or local governmental authorities (including,
without limitation, insurance departments) with jurisdiction over any of the
Companies and all required regulatory approvals in respect thereof are in full
force and effect on the date hereof. Tenere has furnished or made available to
FPIC complete and correct copies of (i) the most recent reports of examination
issued by state insurance regulatory authorities in respect of Intermed and
Interlex, (ii) the most recent insurance holding company registrations and
annual reports filed with respect to Intermed and Interlex, (iii) all other
regulatory filings by or undertakings of any of the Companies and (iv) all
complaints filed by any regulatory agency and other regulatory proceedings
initiated or pending with respect to any of the Companies at any time within the
preceding five years. Since December 31, 1992, no deficiencies material to the
financial condition or operations of Intermed or Interlex or any of the other
Companies have been asserted by any state regulatory authorities with respect to
any reports or filings made by or with respect to any of the Companies. Tenere
has furnished to FPIC copies of all written responses submitted by each of
Intermed and Interlex (i) in respect of the most recent examination report of
such Company made by a state insurance regulatory authority and (ii) to the
National Association of Insurance Commissioners regarding such Company's
Insurance Regulatory Information System (IRIS) ratings. Each of the Companies on
the Closing Date will have substantially completed, in the ordinary course of
its business, consistent with its past practices and to the extent practicable,
the preparation of all reports, data, other information and applications that it
will be required to file with any federal, state or local governmental authority
(including, without limitation, insurance departments) within 60 days following
the Closing Date and such unmade filings will be in form and substance
sufficient to enable the Companies to complete and make such filings on a timely
basis following the Closing Date.
(y) Absence of Certain Changes. Since June 30, 1998,
none of the Companies has (i) issued, sold or delivered or agreed to issue,
sell or deliver any additional shares of its capital stock or any options,
warrants or rights to acquire any such capital stock, or securities convertible
into or exchangeable for such capital stock, (ii) incurred any obligations or
liabilities, whether absolute, accrued, contingent or otherwise (including,
without limitation, liabilities as guarantor or otherwise with respect to
obligations of others), other than obligations and liabilities relating to the
issuance of insurance policies in the ordinary course of Intermed's and
Interlex' business, or incurred in the ordinary course of Tenere's business, or
obligations and liabilities otherwise reflected on financial statements
delivered by Tenere to FPIC, (iii) mortgaged, pledged or subjected to any lien,
lease, security interest or other charge or encumbrance, any of its assets,
tangible or intangible, (iv) acquired or disposed of any assets or properties,
or entered into any agreement or other arrangements for any such acquisition or
disposition, except for assets acquired or disposed of in the ordinary course
of business, (v) declared, made, paid or set apart any sums
19
21
for any dividend or other distribution to its shareholders or any other
Affiliate or purchased or redeemed any shares of its capital stock or granted
any option, warrant or right to purchase any such capital stock, or reclassified
such capital stock, (vi) except as set forth on a schedule hereto, paid or
become obligated to pay any service fees or other sums to Tenere or any of its
Affiliates, (vii) forgiven or canceled any debts or claims or waived any
statutory, contractual or common law rights of material value, (viii) entered
into any transaction other than in the ordinary course of business, (ix) granted
any rights or licenses under any of their respective trade names or entered into
general agency arrangements, (x) entered into any agreement regarding
reinsurance, surplus relief obligations, excess insurance, ceding of insurance,
assumption of insurance or indemnification with respect to insurance or
management of business, (xi) suffered any adverse change in their respective
operations, financial condition, income, assets or liabilities, (xii) suffered
any damage, destruction or loss, whether or not covered by insurance or
reinsurance, materially adversely affecting, in any case or in the aggregate,
their respective businesses, financial condition, properties or assets or (xiii)
suffered any strike, picketing, boycott or other labor trouble materially
adversely affecting their respective businesses, financial condition or
operations.
(z) Taxes. All Tax returns and information returns,
reports, statements, and forms (including estimated Tax and information
returns, reports, statements, and forms) (collectively, the "Returns") of each
of the Companies and of any member of any affiliated group of corporations
(within the meaning of section 1504 of the Internal Revenue Code of 1986, as
amended (the "Code"), as in effect at the time of the due date for the filing
of such Returns) of which any of the Companies is or was a member that are
required by law to be filed with any Taxing Authority have been timely filed
and are accurate, true and complete in all material respects. Except as set
forth on Schedule 4.1(z), all Returns filed with respect to Tax years of the
Companies through the Tax year ended December 31, 1994 have been examined and
closed or are Returns with respect to which the applicable period for
assessment under applicable law has expired. None of the Returns filed by or
on behalf of any of the Companies is currently being audited by any Taxing
Authority. All Taxes upon each of the Companies or for which any of the
Companies may be liable, or in respect of any of the assets, income or
franchises of any of the Companies, have been paid by such Company or have been
paid on such Company's behalf, or adequate accruals, reserves and provisions
have been established on the books of the Companies for the payment of such
Taxes. There are no requests for rulings or determinations in respect of any
Tax or Tax Asset pending between any of the Companies and any Taxing Authority.
There are no Tax liens upon any of the properties or assets of any of the
Companies. No Taxing Authority has provided any of the Companies or any member
of any affiliated group of corporations of which any of the Companies is or was
a member with any notice of any audit, investigation, proceeding or claim with
respect to any Taxes for which any of the Companies may be liable. None of the
Companies nor any member of any affiliated group of corporations (as defined
above) of which any of the Companies is or was a member has granted or been
requested to grant any waiver of any statute of limitations applicable to any
claim for Taxes or has agreed to any extension of time with respect to any Tax
assessment or deficiency for Taxes for which any
20
22
of the Companies may be liable. All information set forth in the notes to the
Tenere Financial Statements relating to Tax matters is true and complete in all
material respects. The accruals and reserves for Taxes (A) reflected in the
Tenere Financial Statements, as to Tenere and the Subsidiaries, in the Intermed
Quarterly Statement for the quarter ended June 30, 1998 as to Intermed, and in
the Interlex Quarterly Statement for the quarter ended June 30, 1998 as to
Interlex, are adequate to cover all liabilities for all accrued or unpaid Taxes
for which each of the respective Companies has any liability or, as to
contested claims, any reasonably estimated liability for Taxes relating to such
claims with respect to the periods covered thereby, and (B) established or to
be established on the books of each of the Companies for the period beginning
June 30, 1998, through the Effective Time will be adequate to cover all such
liabilities and reasonably estimated liabilities with respect to such period,
all in accordance with (i) GAAP applied on a basis consistent with prior
periods as to Tenere and the Subsidiaries and (ii) SAP on a basis consistent
with prior periods as to Intermed and Interlex. All ceding commissions paid or
accrued by either Intermed or Interlex (for any period as to which any
applicable statute of limitations remains open) in connection with any
reinsurance, coinsurance, or other similar contract have been capitalized and
amortized over the respective life of each such contract in accordance with all
applicable Tax laws. Except as set forth on Schedule 4.1(z), none of the
Companies is a party to or bound by any contractual obligation to pay any Tax,
including any Tax indemnity, Tax sharing, Tax allocation or similar agreement,
arrangement, contract, or plan. All elections with respect to Taxes affecting
each of the Companies are set forth in Schedule 4.1(z). Since January 1, 1993,
none of the Companies nor any Affiliate of any of them has made or changed any
Tax election, changed any annual Tax accounting period, or adopted or changed
any method of Tax accounting (to the extent that any such action may materially
affect any of the Companies). None of the Companies is a party to any
agreement, contract, arrangement or plan that has resulted or could result,
separately or in the aggregate, in the payment of any "excess parachute
payments" within the meaning of Section 280G of the Code. None of the Companies
owns any material property subject to a lease that is not a "true" lease for
federal income Tax purposes. Each of the Companies has withheld and paid in a
timely manner to the proper Taxing Authority all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, Shareholder, or other third party, and has
complied with all information reporting and backup withholding requirements.
None of the Companies has nor has had a permanent establishment in any foreign
country, as defined in any applicable Tax treaty or convention between the
United States and such foreign country. For purposes of this Agreement, the
term "Tax" means (i) any tax, or other like assessment or charge of any kind
whatsoever (including, but not limited to, withholding on amounts paid to or by
any person or entity and premium taxes), together with any interest, penalty,
addition to tax or additional amount imposed by any federal, state, local,
foreign or other governmental authority (a "Taxing Authority") responsible for
the imposition of any such Tax, (ii) liability of any Company for the payment
of any amount described in (i) as a result of being a member of an affiliated,
consolidated, combined or unitary group, or being a party to any agreement or
arrangement as a result of which liability of any of the Companies to a Taxing
Authority is determined or taken into account with reference to the liability
of any other Person, and (iii) liability of any of the Companies for the
payment of any amount as a result of being party to any tax sharing, allotment,
allocation or similar
21
23
agreement or with respect to the payment of any amount of the type described in
(i) or (ii) as a result of any express or implied obligation (including, but not
limited to, an indemnification obligation). For purposes of this Agreement, the
term "Tax Asset" means any operating loss, net capital loss, investment tax
credit, foreign tax credit, charitable deduction or any other credit or tax
attribute that could reduce Taxes (including, without limitation, deductions and
credits related to alternative minimum Taxes).
(aa) Insurance Policies. Set forth in Schedule
4.1(aa) hereto is a complete and correct list as of the date hereof of the
insurance policies maintained by or for the benefit of any of the Companies or
their Affiliates or other officers or directors. Such policies are in full
force and effect, all premiums due thereon have been paid and the insured has
complied in all material respects with the provisions of such policies.
(bb) Transactions with Interested Persons. Except
as set forth on Schedule 4.1(bb), no officer or director, or to the best of
Tenere's knowledge any employee, agent or broker (or spouse or any child of any
thereof) of any of the Companies, or of any corporation that is an Affiliate of
any of the Companies, owns, directly or indirectly, on an individual or joint
basis, any material interest in, or serves as an officer, employee or director
of, any customer, insurance agency, competitor or supplier of any of the
Companies or any person or entity that has a material contract or arrangement
with any of the Companies.
(cc) Bank and Brokerage Accounts. Tenere has
provided FPIC with a complete and accurate list of each bank or trust company,
other financial institution, mutual fund or stock brokerage firm in which each
of the Companies has an account or safe deposit box and each custodial account
maintained by each of the Companies and, in each case, the names of such
accounts, the account numbers and the names of all persons authorized to draw
thereon or to have access thereto. Tenere has provided FPIC with a complete
and accurate list of all credit cards issued to any present or past officer,
employee or agent of any of the Companies under which any of the Companies has
any current or potential future liability.
(dd) Disclosure. Neither this Agreement nor any
written document, statement, list, schedule, exhibit, certificate or other
instrument furnished or to be furnished to FPIC or Acquisition Corporation by
or on behalf of any of the Companies in connection with the transactions
contemplated hereby contains or will contain when made or delivered any untrue
statement of a material fact, or fails to state or will fail to state when made
or delivered a material fact necessary to make the statements contained herein
and therein not misleading. There is no fact known to Tenere that materially
adversely affects, or in the future may materially adversely affect, the
condition (financial or otherwise), properties, assets, liabilities,
capitalization, ownership, business or operations of any of the Companies.
(ee) Employee Benefit Plans.
22
24
(i) All plans, funds and programs as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), any deferred compensation agreements, employment contracts,
severance pay agreements and any other agreements, plans or programs relating
to employment whether written or oral ("Benefit Plans") currently maintained,
or to which contributions are made, by any of the Companies, or previously
maintained, or to which contributions have been made, by any of the Companies
for which any of the Companies may be subject to current or potential future
liability, are listed and described in Schedule 4.1(ee) hereto. None of the
Companies has any obligation to establish, maintain or contribute to any
Benefit Plan other than as listed on Schedule 4.1(ee).
(ii) Each of the Companies has provided to FPIC
complete and correct copies of all plan documents of the Benefit Plans listed
in Schedule 4.1(ee), including but not limited to, trust agreements, insurance
contracts, advance determination letters from the IRS, summary plan
descriptions, employee oral communications, the last five years' Form 5500s and
the most recent actuarial statements and financial statements.
(iii) All assets of the Benefit Plans listed in
Schedule 4.1(ee) are held in trust or under an insurance contract.
(iv) Other than as set forth in Schedule 4.1(ee),
none of the Companies nor any other corporation, trade or business under common
control with any of the Companies (as determined under Code '' 414(b) and (c))
(the "Control Group") has established, maintained or contributed to any
employee benefit plan subject to Title IV of ERISA or the funding requirements
of Section 412 of the Code.
(v) Each of the Companies and each of the Benefit
Plans has been and presently is in compliance, both in form and operation, with
the applicable provisions of ERISA, the Code and all other applicable laws and
the regulations issued thereunder. Each of the Benefit Plans listed in
Schedule 4.1(ee) hereto that is intended to be a qualified plan pursuant to
Code ' 401(a) is so qualified and has received a favorable determination letter
to such effect within the last two years and no action or amendment has been
taken or made to adversely effect such determination letter. Each such
determination letter is attached hereto as Exhibit 4.1(ee). All reports
required by any governmental agency and disclosures required to be made to
participants and beneficiaries with respect to the Benefit Plans listed in
Schedule 4.1(ee) have been timely filed or made.
(vi No litigation is pending or, to the best of the
knowledge of Tenere, threatened with respect to any of the Benefit Plans listed
in Schedule 4.1(ee) hereto. There is no outstanding request for information
concerning any of the Benefit Plans listed in Schedule 4.1(ee) hereto by
participants, beneficiaries or governmental agencies. None of the Companies nor
any Benefit Plan fiduciary (as defined in ERISA ' 3(21)) has engaged in any
transaction in violation of ERISA ' 406(a) or (b) (for which no exemption
exists under ERISA ' 408) or any "prohibited transaction" (as defined in
' 4975(c)(2) or ' 4975(d) of the Code).
23
25
(vii All contributions, premiums or other payments
for the Benefit Plans listed in Schedule 4.1(ee) hereto attributable to all
periods prior to the Closing Date have been made. Each of the Benefit Plans
listed in Schedule 4.1(ee) is fully funded or reserves are established and
listed therefor on the most recent financial statements of the Companies,
respectively. If any Benefit Plan listed in Schedule 4.1(ee) were to be
terminated the day following the Closing Date, the assets of such Benefit Plan
are, and would be, sufficient to provide all promised benefits including, if
necessary, to pay for the purchase of annuities from an A++ (Superior) Best
rated insurance company at the then prevailing annuity purchase rates.
(viii None of the Companies nor any member of the
Control Group has contributed to, has been obligated to contribute to, or
otherwise participated in any multiemployer plan, as defined in Section
4001(a)(3) of ERISA nor in any multiemployer plan as defined in Section 413(c)
of the Code.
(ix None of the Companies has provided, nor has any
obligation to provide, any medical, life of similar benefits to employees
following termination of employment except as required in ERISA ' 601. Each of
the Companies has complied with ERISA ' 601. None of the Companies has
contributed to a nonconforming group health plan (as defined in Code Section
5000(c) and no member of the Control Group has incurred a tax under Code
Section 5000(a) that is or could be a liability of the Companies.
(x All Benefit Plans listed in Schedule 4.1(ee)
hereto and related Contracts, trusts and agreements are legally valid and
binding and in full force and effect.
(xi No individual shall accrue or receive
additional benefits, service or accelerated vesting or rights to the payment as
a direct result of the transactions contemplated by this Agreement. No payment
or benefit accrued under any Benefit Plan or other agreement or arrangement
will be subject to Code ' 280G.
(ff Employees. Set forth in Schedule 4.1(ff)
hereto is a list of all employees, agents (other than insurance agents),
consultants and similar persons retained by each of the Companies together with
their present rate of compensation (including bonuses) and a description of any
existing or proposed written or oral agreements with any of them regarding such
employment or engagement. None of the Companies is a party to any collective
bargaining or other labor union contract applicable to persons employed by such
Company. No Company has breached or otherwise failed to comply in any material
respect with any provision of any such agreement or contract and there are no
formally filed grievances outstanding against any Company or, to Tenere's
knowledge, threatened, against any Company, under any such agreement or
contract. There are no unfair labor practice complaints pending or, to the
best knowledge of Tenere, threatened, against any of the Companies nor any
judicial or regulatory proceeding, investigation or inquiry or employee
complaint currently pending or, to the best knowledge of Tenere, threatened,
against any of the Companies relating to union representation or otherwise.
24
26
Tenere is not aware of any current activities or proceedings of any labor union
(or representatives thereof) to organize any unorganized employees of any of
the Companies, nor of any strikes, slowdowns, work stoppages, lockouts or
written threats thereof, by or with respect to any employees of any of the
Companies. During the past five years, there have not been any formally filed
grievances involving employees of any of the Companies.
(gg Intellectual Property. There are no United
States or foreign patents or patent applications needed by any of the Companies
to operate their respective businesses. Set forth in Schedule 4.1(gg) hereto
is a complete list and summary description of all trademarks, trade names,
service marks, copyrights (whether registered or as to which registration has
been applied for in any jurisdiction) and fictitious names relating to the
business of each of the Companies and all common law trademarks, trade names,
service marks and other intellectual property used by each of the Companies,
none of which is owned by or licensed to anyone other than the Companies.
There is no existing or, to the best knowledge of Tenere, threatened
infringement, misuse or misappropriation by others or pending or threatened
claims by any of the Companies against others for infringement, misuse or
misappropriation of any patent, trademark, trade name, service xxxx, fictitious
name, copyright, trade secret, know-how or other intellectual property relating
to the business of any of the Companies.
(hh Brokers. All activities of the Companies
relating to this Agreement and the transactions contemplated hereunder have
been carried on by the Companies in such manner so as not to give rise to any
valid claim by any person for a finder's fee, brokerage commission or other
like payment other than the fee payable to ABN AMRO Incorporated in connection
with the fairness opinion to be issued as contemplated in Section 6.1(k) of
this Agreement.
(ii Surplus Relief. At December 31, 1997,
neither Intermed or Interlex was, currently is, or on the Closing Date will be,
subject to any surplus relief obligations or reinsurance contracts or
arrangements involving financings or otherwise.
(jj Insurance Issued by Intermed and Interlex.
(i All insurance or annuity contract
benefits payable by Intermed and Interlex and, to the knowledge of Tenere, by
any other person that is a party to or bound by any reinsurance, coinsurance,
or other similar contract with Intermed or Interlex have been paid in
accordance with the terms of the insurance and other contracts under which they
arose.
(ii No outstanding insurance issued,
reinsured, or underwritten by Intermed or Interlex entitles the holder thereof
or any other person to receive dividends, distributions, or other benefits
based on the revenues or earnings of any company or any other person.
25
27
(iii All insurance and annuity contracts
offered, issued, reinsured or underwritten by Intermed and Interlex have been
duly approved under all applicable insurance laws and regulations and have been
fully reserved for as prescribed under such laws and regulations.
(iv The respective underwriting
standards utilized and ratings applied by Intermed and Interlex and, to the
best knowledge of Tenere, by any other person that is a party to or bound by
any reinsurance, coinsurance or other similar contracts with Intermed or
Interlex conform in all material respects to industry-accepted practices and to
the standards and ratings required pursuant to the terms of the respective
reinsurance, coinsurance, or other similar contracts.
(v All amounts (including without
limitation amounts based on paid and unpaid losses) to which each of Intermed
and Interlex is entitled under reinsurance, coinsurance, assumption fronting or
other similar contracts by which Intermed or Interlex insures, or is insured
by, a third person against loss or liability from risks assumed, are fully
collectible.
(vi Each insurance agent or general
agent employed by any of the Companies, and to the best knowledge of Tenere,
each other insurance agent or general agent, at the time such agent offered,
wrote, sold or produced business for Intermed or Interlex, was duly licensed as
an insurance agent for the business offered, written, sold or produced by such
agent in the particular jurisdiction in which such agent offered, wrote, sold
or produced such business for Intermed or Interlex. Except as set forth on
Schedule 4.1(jj), no such insurance agent, general agent or any group of
affiliated agents has written 5% or more of Intermed's or Interlex' total
in-force premium.
(vii To the best of Tenere's knowledge,
no insurance agent or general agent of Intermed or Interlex has violated (or
with or without notice or lapse of time or both, will or would have violated)
any term or provision of any law or any writ, judgment, decree, injunction or
similar order applicable to, or engaged in any misrepresentation with respect
to, the writing, sale or production of business for Intermed or Interlex.
(viii Neither Intermed nor Interlex has
ever issued any individual retirement annuity (within the meaning of section
408(b) of the Code) or any annuity contract intended to satisfy the
requirements of section 403(b) of the Code. Neither Intermed nor Interlex
serves or has sponsored or maintained any master, prototype, volume submitter,
mass submitter or similar type of retirement plan intended to qualify under
section 401(a) of the Code for the benefit of employees of another employer.
Neither Intermed nor Interlex serves or has served as plan administrator or
plan recordkeeper for any employee benefit program for the benefit of employees
of another employer.
(ix The tax treatment under the Code of
all Products (as hereinafter defined) is and at all times has been the same or
more favorable to the purchaser, policyholder or intended beneficiaries thereof
as the tax treatment under the Code for which such
26
28
Products qualify or purported to qualify at the time of their offer, issuance or
purchase. Neither Intermed nor Interlex has ever issued any ERISA Product (as
hereinafter defined). For purposes of this Agreement, (i) the term "Products"
means all insurance, annuity or investment contracts, financial products,
employee benefit plans, individual retirement accounts or annuities or any
similar or related contracts or products, whether individual, group or
otherwise, at any time offered, issued or underwritten by Intermed or Interlex
and (ii) the term "ERISA Product" means any Product that constitutes an
arrangement that is intended to satisfy the requirements of section 79, 105,
401(a), 403(a), 403(b) or 408 of the Code.
(x None of the Products constitute
"life insurance" contracts as that term is defined in Code Section 7702(a).
(xi All reinsurance agreements between
either Intermed or Interlex and any non-licensed or non-approved insurer are
secured by letters of credit or other security meeting applicable statutory
requirements sufficient to allow Intermed or Interlex, as the case may be, to
take full credit in its accounting and financial statements for such
reinsurance.
(kk No Threatened Cancellation. Since January 1,
1997, no policyholder, group of policyholder Affiliates or persons writing,
selling or producing insurance business that individually or in the aggregate
accounted for 5% or more of the premium or annuity income determined in
accordance with SAP of either Intermed or Interlex for the year ended December
31, 1996, has terminated or, to the best knowledge of Tenere, threatened to
terminate, its relationship with Intermed or Interlex.
(ll Computer Software. Set forth on Schedule
4.1(ll) hereto is a complete and correct list and summary description of all
computer hardware, software and programs owned by or licensed to each of the
Companies or being utilized in connection with the business, operations or
affairs of any of the Companies. The computer hardware, software, programs and
similar systems set forth on Schedule 4.1(ll) hereto are all of the computer
hardware, software, programs and similar systems necessary to enable each of
the Companies to conduct their respective businesses as presently conducted.
Each of the Companies has, and at all times after Closing will have, the right
to use, free and clear of any royalty or other payment obligations (except as
disclosed in Schedule 4.1(ll)), to the best knowledge of the Companies claims
of infringement or alleged infringement or other liens all computer hardware,
software, programs and similar systems disclosed in Schedule 4.1(ll) hereto.
To the best knowledge of the Companies, none of the Companies is in conflict
with or in violation or infringement of, nor has any of the Companies received
any notice of any conflict with or violation or infringement of or any claimed
conflict with, any asserted rights of any other person with respect to any
computer hardware, software or programs, including without limitation any such
item disclosed on Schedule 4.1(ll) hereto. The hardware, software and all
related systems and applications (collectively, the "Computer Systems") of each
Company include design, performance and functionality so that the Companies do
not reasonably expect to experience invalid or incorrect results or abnormal
hardware or software operation related to calendar year 2000.
27
29
(mm Books and Records. The minute books and
other similar records of each of the Companies contain a complete and correct
record, in all material respects, of all actions taken at all meetings and by
all written consents in lieu of meetings of the shareholders and board of
directors of each of the Companies, respectively and of each committee thereof.
The books and records of each of the Companies accurately reflect in all
material respects the business or condition of each of the Companies,
respectively, and have been maintained in all material respects in accordance
with good business and bookkeeping practices.
(nn No Investment Company. None of the Companies
is, and none of the Companies has registered as, an investment company within
the meaning of the Investment Company Act of 1940, as amended. None of the
Companies maintains any separate account or similar fund for the benefit of any
policyholder or annuitant.
(oo Investment Portfolio. Tenere has provided
FPIC with a complete and correct list as of June 30, 1998, of all stocks,
notes, debentures, bonds, mortgage loans, policy loans and other securities and
investments owned of record or beneficially by each of Intermed and Interlex,
which as of such date constituted the entire investment portfolio of each of
Intermed and Interlex (which portfolio with additions and deletions thereto in
the ordinary course of business as permitted by this Agreement is hereafter
called the "Investment Assets"). Each of Intermed and Interlex has good and
indefeasible title to its Investment Assets, and all of its Investment Assets
are in compliance with the requirements of all applicable laws and insurance
regulations. As of the Closing, the investment portfolios of Intermed and
Interlex shall consist of the Investment Assets, and each of Intermed and
Interlex shall own and have good and indefeasible title to its Investment
Assets.
(pp Discussions with Regulators. No employee,
agent or representative of any of the Companies has had any discussions or
communications with any regulators regarding an adverse change in Intermed's or
Interlex' or any of the other Companies' condition (financial or otherwise) or
regarding a material breach of market conduct requirements of Intermed or
Interlex or any of the other Companies.
(qq Regulatory Matters. No Company or any
Affiliate thereof has taken or agreed to take any action, and Tenere does not
have any knowledge of any fact or circumstance, that is reasonably likely to
materially impede or delay receipt of any consents of regulatory authorities
referred to in Section 4.1(d).
(rr State Takeover Laws. Each Company has taken
all necessary actions to exempt the transactions contemplated by this Agreement
from any applicable "moratorium", "fair price", "business combination",
"control share" or other anti-takeover laws, including, without limitation,
Sections 351.410 through 351.464 of the GBCLM.
28
30
Section 4.2 Representations and Warranties of FPIC and Acquisition
Corporation. Each of FPIC and Acquisition Corporation represents, warrants and,
to the extent that an item relates to a future time period, covenants to Tenere
as follows:
(a Organization and Good Standing. Each of FPIC and
Acquisition Corporation is a Florida corporation, validly existing and in good
standing under the laws of the State of Florida.
(b Power and Authority. Each of FPIC and Acquisition
Corporation has all requisite power and authority to execute, deliver and
perform this Agreement and any other agreements or instruments contemplated
hereby to be executed by it. The execution, delivery and performance by FPIC
and Acquisition Corporation of this Agreement and any other agreements or
instruments contemplated hereby to be executed by FPIC and Acquisition
Corporation have been duly authorized by all requisite action on behalf of FPIC
and Acquisition Corporation and, except for obtaining the approval of this
Agreement by FPIC (as the sole shareholder of Acquisition Corporation) (which
approval FPIC shall give prior to the Closing Date), no other authorization or
approval by the Board of Directors or shareholder of FPIC or Acquisition
Corporation or any other Affiliate of FPIC is necessary to consummate the
transactions contemplated hereby. This Agreement constitutes, and each other
agreement contemplated hereby to be executed by FPIC or Acquisition Corporation
will constitute when executed and delivered, a valid and legally binding
obligation of FPIC and Acquisition Corporation enforceable against it in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors rights generally and general principles of equity.
(c No Conflicts. The execution and delivery of this
Agreement and any other agreements and instruments contemplated hereby by FPIC
and Acquisition Corporation and the consummation of the transactions
contemplated hereby, in accordance with the terms hereof and thereof, upon
receipt of the consents and approvals contemplated by Section 4.2(d), will not
violate any existing provision of the Articles of Incorporation, Bylaws or
other organizational documents of FPIC or Acquisition Corporation or of any law
or violate any existing term or provision of any order, writ, judgment,
injunction or decree of any court or any other governmental department,
commission, board, bureau, agency or instrumentality applicable to either FPIC
or Acquisition Corporation or conflict with or result in a breach of any of the
terms, conditions or provisions of any agreement to which FPIC or Acquisition
Corporation is a party, or by which any of their respective properties are
bound, or constitute an event that might permit an early termination of or
otherwise materially affect any such agreement.
(d Consents and Approvals. No consent, license,
approval, order or authorization of, or registration, declaration or filing
with, any governmental authority, agency, bureau or commission or any third
party is required to be obtained or made by FPIC or Acquisition Corporation in
connection with the execution, delivery, performance, validity, and
enforceability of this Agreement, except for (i) filings to be made with, and
approvals to be
29
31
obtained from, the Missouri Department and the insurance departments of other
states or jurisdictions, (ii) filings under the pre-merger notification
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 ("HSR")
and (iii) registrations, declarations or filings required to be made subsequent
to the Closing Date with any governmental entity or third party not entailing
any requirement of consent, license, approval, order or authorization on the
part of such governmental entity or third party.
(e Disclosure. Neither this Agreement nor any written
document, statement, list, schedule, exhibit, certificate or other instrument
furnished or to be furnished to Tenere by or on behalf of FPIC or Acquisition
Corporation in connection with the transactions contemplated hereby contains or
will contain when made or delivered any untrue statement of a material fact, or
fails to state or will fail to state when made or delivered a material fact
necessary to make the statements contained herein and therein not misleading.
There is no fact known to FPIC or Acquisition Corporation that materially
adversely affects, or in the future may materially adversely affect, the
condition (financial or otherwise), properties, assets, liabilities,
capitalization, ownership, business or operations of FPIC or Acquisition
Corporation.
(f Brokers. All activities of FPIC and Acquisition
Corporation relating to this Agreement and the transactions contemplated
hereunder have been carried on by FPIC and Acquisition Corporation in such
manner so as not to give rise to any valid claim by any person against Tenere
for a finder's fee, brokerage commission or other like payment.
ARTICLE 5
COVENANTS
Section 5.1 Covenants of Tenere. From the date hereof through the
Closing Date, Tenere will and will cause the Subsidiaries to:
(a Access to Information. Upon reasonable notice, give
FPIC and its attorneys, accountants, agents and representatives full access to
all the properties, books, records, contracts, commitments, employee benefit
plans, documents, instruments and other records of or pertaining to each of the
respective Companies and permit FPIC and its attorneys, accountants, agents and
representatives to consult with and ask questions of the officers and employees
of each Company; deliver to FPIC all audited or unaudited quarterly or annual
financial statements of each such Company prepared subsequent to the date of
this Agreement; and cooperate with and assist FPIC in discussions with
insurance regulators regarding each of the Companies' financial condition and
compliance with insurance laws and regulations.
(b Conduct of Business. Keep the books and records of
each Company consistent in all material respects with prior periods and, with
respect to Intermed and Interlex, in accordance with SAP and, with respect to
the consolidated group consisting of Tenere and the
30
32
Subsidiaries, in accordance with GAAP, and conduct their respective businesses
and corporate affairs in the ordinary course consistent in all material respects
with past practices, and will not:
(i issue or sell any of their respective
capital stock, or any options, warrants, calls or securities convertible into
such capital stock, or enter into any agreement to do any of the foregoing, or
make any change in its capital structure either by way of stock split, stock
dividend or otherwise;
(ii) declare or pay any dividends or make
any distribution in respect of capital stock, or purchase, redeem or otherwise
acquire or retire any capital stock;
(iii) other than in the ordinary course of
business, without the prior written consent of FPIC enter into or assume any
contract or commitment, or terminate or amend any existing contract or
commitment, or incur or prepay any indebtedness for borrowed money;
(iv) make any loans or advance any funds
to anyone or extend credit;
(v) except as contemplated in this
Agreement, enter into, amend or accelerate any payment or contribution under any
employment, agency or consulting agreement or Benefit Plan;
(vi) other than in the ordinary course of
business, without the prior consent of FPIC, which consent shall not be
unreasonably withheld, hire any new employees or make any changes affecting the
rates of compensation of, or pay any bonuses to (other than accrued bonuses
under current Benefit Plans), or grant any other benefit to, their respective
current directors, officers, agents or employees;
(vii) other than in the ordinary course of
business, create or assume any mortgage or other lien or encumbrance on, or
dispose of, any of their respective assets or properties;
(viii) other than in the ordinary course of
business, acquire any assets or any properties or make any investments, or
enter into any agreements to acquire any assets or properties or to make any
investments;
(ix) except as permitted under Section
3.4, merge or consolidate with any other corporation, or acquire or agree to
acquire any stock (except investments in the ordinary course of business) of
any person, firm, association, corporation or other business organization;
(x) make any change in their respective
Articles of Incorporation or Bylaws;
31
33
(xi) without the prior written consent of FPIC,
enter into any arrangement with any person with respect to any United States or
foreign patents, patent applications, trademarks, service marks, applications
for registration of trademarks or service marks, trade names, fictitious names,
copyrights, know-how or trade secrets owned by any of them, or in any way
relating to their respective businesses;
(xii) without the prior written consent of FPIC,
make any election with respect to the computation of taxes or take any position
in any tax return that could have an adverse effect on any of the Companies;
(xiii) other than in the ordinary course of business,
without the prior written consent of FPIC make any other change in their
businesses, business practices or operations; or
(xiv) enter into any agreement to do any of the
foregoing.
(c Consultation with FPIC Pending Closing. Confer and
consult with FPIC on all material business decisions affecting the future
performance of each of the Companies, other than decisions made in the ordinary
course of business consistent in all material respects with past practices,
including in particular with respect to Intermed and Interlex on all material
business decisions involving (i) increases or decreases in the credited rate of
insurance products issued by Intermed or Interlex and (ii) Intermed's and
Interlex' investment policy.
(d Disposition of Shares. With respect to Tenere, not
dispose of, encumber or grant any rights regarding any of the capital stock of
any Subsidiary.
(e Intercompany Accounts. At least five days before the
Closing, deliver to FPIC a complete and correct list and summary description of
all intercompany accounts between Tenere, Intermed, Interlex and/or ISI, or any
Affiliate of Tenere.
(f Preservation of Business. Use all reasonable efforts
to (i) preserve intact each of the Companies' present business organization,
reputation, employees, agents, customers and suppliers, and with respect to
Intermed and Interlex, relations with policyholders, (ii) maintain all licenses
of each of the Companies to do business in each jurisdiction in which they are
so licensed, (iii) maintain in full force and effect all agreements of each
Company (except as otherwise contemplated by this Agreement) and (iv) maintain
all assets and properties of each Company in good working order and condition,
ordinary wear and tear excepted.
(g Investment Portfolio Requirements. Notify and obtain
the written approval of FPIC, which approval shall not be unreasonably
withheld, prior to making any changes to Intermed's or Interlex' investment
portfolio or the Investment Assets that are not in the ordinary course of
business or that are inconsistent in any material respect with Intermed's or
Interlex' present or past investment practices and policies.
32
34
(h Surplus Items. Take no actions other than in the
ordinary course of business as contemplated by this Agreement or as required by
law, without the prior written consent of FPIC, that could cause or result in a
reduction in the amount of Intermed's or Interlex' aggregate statutory capital,
surplus, asset valuation reserve and interest maintenance reserve, as set forth
in the Intermed's Interlex' Quarterly Statements for the quarter ended June 30,
1998.
(i Notice and Cure. Notify FPIC promptly in writing of,
and contemporaneously provide FPIC with complete and correct copies of any and
all information or documents relating to, and use all reasonable efforts to
cure before the Closing, any event, development, transaction or circumstance
occurring after the date of this Agreement that causes or could cause any
covenant or agreement of Tenere under this Agreement to be breached, or that
renders or could render untrue any representation or warranty of Tenere
contained in this Agreement as if the same were made on or as of the date of
such event, development, transaction or circumstance; and use all reasonable
efforts to cure, before the Closing, any violation or breach of any
representation, warranty, covenant or agreement made by Tenere in this
Agreement, whether occurring or arising before or after the date of this
Agreement.
(j Further Actions. Execute, acknowledge and deliver
any further documents, including, but not limited to, any financial statements
of Intermed and Interlex filed with the Missouri Department after the date
hereof, reasonably requested by FPIC consistent with the terms of this
Agreement.
(k Reasonable Efforts. Use its reasonable efforts to
fulfill, as soon as practicable, all of the conditions contained in Section 6.1
hereof.
(l Fund Plan Deficits. If requested by FPIC fund any
and all actuarial deficits existing in any Benefit Plan listed on Schedule
4.1(ee ) of this Agreement except to the extent that such funding could (i)
cause the Benefit Plan to fail to qualify under section 401(a) of the Code with
respect to some or all persons with beneficial interests in the Benefit Plan
(determined without regard to any modification to the Benefit Plan's benefit
formula that could be made to prevent such disqualification) or (ii) cause the
imposition of an excise tax under section 4972 of the Code.
Section 5.2 Covenants of FPIC and Acquisition Corporation. From the
date hereof through the Closing Date, FPIC and Acquisition Corporation will
each:
(a Further Actions. Execute, acknowledge and deliver
any further documents reasonably requested by Tenere consistent with the terms
of this Agreement.
(b) Reasonable Efforts. Use their reasonable efforts to
fulfill, as soon as practicable, all of the conditions contained in Section 6.2
hereof.
(c) Notice and Cure. Notify Tenere promptly in writing
of, and contemporaneously provide Tenere with complete and correct copies of,
any and all information
33
35
or documents relating to, and use all reasonable efforts to cure before the
Closing, any event, development, transaction or circumstance occurring after the
date of this Agreement that causes or could cause any covenant or agreement of
FPIC or Acquisition Corporation under this Agreement to be breached, or that
renders or could render untrue any representation or warranty of FPIC or
Acquisition Corporation contained in this Agreement as if the same were made on
or as of the date of such event, development, transaction or circumstance; and
use all reasonable efforts to cure, before the Closing, any violation or breach
of any representation, warranty, covenant or agreement made by FPIC or
Acquisition Corporation in this Agreement, whether occurring or arising before
or after the date of this Agreement.
ARTICLE 6
CONDITIONS PRECEDENT
Section 6.1 FPIC and Acquisition Corporation. The obligations of
FPIC and Acquisition Corporation to consummate the transactions provided for in
this Agreement shall be subject to the fulfillment, on or prior to the Closing
Date, of the following conditions:
(a Representations and Warranties. The representations
and warranties of Tenere set forth in this Agreement shall, (i) to the extent
such representations and warranties are not qualified by a materiality
standard, be true and correct in all material respects on the Closing Date as
if made on and as of the Closing Date and (ii) to the extent such
representations and warranties are qualified by a materiality standard, be true
and correct in all respects on the Closing Date as if made on and as of the
Closing Date, and FPIC shall have received a certificate to such effect
executed on behalf of Tenere by its Chief Executive Officer and Chief Financial
Officer and dated as of the Closing Date.
(b Performance of Obligations. Tenere and the
Subsidiaries shall have performed in all material respects all of their
obligations contained in this Agreement to be performed on or prior to the
Closing Date, and FPIC shall have received a certificate to such effect,
executed on behalf of Tenere by its Chief Executive Officer and Chief Financial
Officer and dated as of the Closing Date.
(c Authorization. All corporate action necessary to
authorize the execution, delivery and performance by Tenere of this Agreement,
and the consummation of the transactions contemplated hereby, shall have been
duly and validly taken by Tenere and Tenere shall have furnished FPIC with
copies of all applicable resolutions adopted by the Board of Directors and
shareholders of Tenere certified by the Secretary or Assistant Secretary of
Tenere.
(d Threatened or Pending Proceedings. No proceedings
shall have been threatened or initiated by any person to enjoin or restrain the
consummation of the transactions contemplated hereby or seeking damages or
other relief as a result thereof.
34
36
(e Approvals and Consents. The waiting period, if any,
pursuant to HSR shall have expired without objection or been terminated and any
necessary approval of the Missouri Department and the insurance departments of
other states and jurisdictions, and all other consents of any person required
to permit the consummation of the transactions contemplated by this Agreement
without any violation by FPIC, Acquisition Corporation, Tenere or the
Subsidiaries of any law or obligation shall have been obtained and such
approvals and consents shall not contain any materially burdensome conditions
or requirements on or applicable to FPIC, Acquisition Corporation, Tenere or
any Subsidiary.
(f Legal Opinions. FPIC shall have received the opinion
of Xxxxxxxx Xxxxxx, substantially in the form attached hereto as of Exhibit
6.1(f).
(g No Adverse Change. Since June 30, 1998, there shall
not have been, occurred or arisen any event, development, transaction,
condition or state of facts of any character (including without limitation any
damage, destruction or loss whether or not covered by insurance or reinsurance)
that individually or in the aggregate has or could have a Material Adverse
Effect on or with respect to any Company.
(h Secretary's Certificates. FPIC shall have received
from Tenere (i) a certificate dated the Closing Date from Tenere's Secretary
attaching (A) a copy of Tenere's Articles of Incorporation certified by the
Secretary of State of Missouri, which certification shall be dated not more
than ten days prior to the Closing Date, (B) a copy of Tenere's Bylaws, and (C)
a Good Standing Certificate for Tenere from the Secretary of State of Missouri,
which Certificate shall be dated no more than ten days prior to the Closing
Date, (ii) a certificate dated the Closing Date from Intermed's Secretary
attaching (A) a copy of Intermed's Articles of Incorporation, certified by the
Missouri Secretary of State, which certification shall be dated not more than
ten days prior to the Closing Date, (B) a copy of Intermed's Bylaws, (C) a Good
Standing Certificate for Intermed from the Missouri Secretary of State, which
Certificate shall be dated not more than ten days prior to the Closing Date, and
(D) Certificates of Status and Authority for Intermed from the Missouri
Department and the Kansas Department of Insurance, (iii) a certificate dated the
Closing Date from Interlex' Secretary attaching (A) a copy of Interlex' Articles
of Incorporation, certified by the Missouri Secretary of State, which
certification shall be dated not more than ten days prior to the Closing Date,
(B) a copy of Interlex' Bylaws, (C) a Good Standing Certificate for Interlex
from the Missouri Secretary of State, which Certificate shall be dated not more
than ten days prior to the Closing Date and (D) Certificates of Status and
Authority for Interlex from the Missouri Department and the Kansas Department,
(iv) a certificate dated the Closing Date from ISI's Secretary attaching (A) a
copy of ISI's Certificate of Incorporation, certified by the Missouri Secretary
of State, which certification shall be dated not more than ten days prior to the
Closing Date, (B) a copy of ISI's Bylaws and (C) a Good Standing Certificate for
ISI from the Missouri Secretary of State, which Certificate shall be dated not
more than ten days prior to the Closing Date, and (v) a certificate dated the
Closing Date from Trout's Secretary attaching (A) a copy of Trout's Articles of
Incorporation, certified by the Missouri
35
37
Secretary of State, which certification shall be dated not more than ten days
prior to the Closing Date, (B) a copy of Trout's bylaws, and (C) a Good Standing
Certificate for Trout from the Missouri Secretary of State, which Certificate
shall be dated not more than ten days prior to the Closing Date.
(i Shareholder Approval. Tenere's shareholders shall
have approved this Agreement and the Merger and Tenere shareholders holding
more than ten percent of the outstanding Tenere's Stock shall not have
delivered to Tenere a written objection to the Merger pursuant Section 351.455
of the GBCLM.
(j Fairness Opinion. Tenere shall have received from
ABN AMRO Incorporated, as of the date of the mailing of the proxy statement of
Tenere to its shareholders with respect to the Merger, its opinion that the
terms of the Merger are fair to the shareholders of Tenere from a financial
point of view, and such opinion shall not have been withdrawn between the date
of its delivery and the Effective Time.
(k Resignation of Directors. Each member of Tenere's
Board of Directors shall have executed and delivered a resignation from such
Board, effective immediately following the Effective Time.
Section 6.2 Conditions to the Obligations of Tenere. The obligation
of Tenere to consummate the transactions provided for in this Agreement shall
be subject to the fulfillment, on or prior to the Closing Date, of the
following conditions:
(a Representations and Warranties. The representations
and warranties of FPIC and Acquisition Corporation set forth in this Agreement
shall, to the extent such representations and warranties are not qualified by a
materiality standard, be true and correct in all material respects on the
Closing Date as if made on and as of the Closing Date, and the representations
and warranties of FPIC and Acquisition Corporation set forth in this Agreement
shall, to the extent such representations and warranties are qualified by a
materiality standard, be true and correct in all respects on the Closing Date
as if made on and as of the Closing Date, and Tenere shall have received
certificates to such effect, executed on behalf of FPIC and Acquisition
Corporation by their respective Chief Executive Officers and Chief Financial
Officers, and dated as of the Closing Date.
(b Performance of Obligations. FPIC and Acquisition
Corporation shall have performed in all material respects all of their
respective obligations contained in this Agreement to be performed on or prior
to the Closing Date, and Tenere shall have received certificates to such
effect, executed on behalf of FPIC and Acquisition Corporation by their
respective Chief Executive Officers and Chief Financial Officers, and dated as
of the Closing Date.
36
38
(c Threatened or Pending Proceedings. No proceedings
shall have been threatened or initiated by any person to enjoin or restrain the
consummation of the transactions contemplated hereby or seeking damages or
other relief as a result thereof.
(d Approvals and Consents. The waiting period, if any,
pursuant to HSR shall have expired without objection or been terminated and any
necessary approvals of the Missouri Department and the insurance departments of
other states or jurisdictions and all other consents listed on Schedule 4.1(d)
required to permit consummation of the transactions contemplated by this
Agreement without any violation by Tenere or the Subsidiaries of any law or
obligation shall have been obtained.
(e Legal Opinion. Tenere shall have received the
opinion of LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., substantially in the form
attached hereto as Exhibit 6.2(e).
(f Shareholder Approval. The Tenere shareholders shall
have approved the Merger.
(g Authorization. All corporate action necessary to
authorize the execution, delivery and performance by FPIC and Acquisition
Corporation of this Agreement, and the consummation of the transactions
contemplated hereby, shall have been duly and validly taken by FPIC and
Acquisition Corporation, and FPIC and Acquisition Corporation shall have
furnished Tenere with copies of all applicable resolutions adopted by their
respective Boards of Directors, certified in each case by a Secretary or
Assistant Secretary of FPIC and Acquisition Corporation, respectively.
(h Deposit with Exchange Agent. There shall have been
deposited with the Exchange Agent the Exchange Fund in accordance with Section
2.3(a).
(i Fairness Opinion. Tenere shall have received from
ABN AMRO Incorporated, as of the date of the mailing of the proxy statement of
Tenere to its shareholders with respect to the Merger, its opinion that the
terms of the Merger are fair to the shareholders of Tenere from a financial
point of view, and such opinion shall not have been withdrawn between the date
of its delivery and the Effective Time.
ARTICLE 7
CLOSING
Section 7.1 Closing. A closing (the "Closing") for the consummation
of the transactions contemplated herein shall be held at the offices of
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., Jacksonville, Florida, at 10:00 A.M.,
local time, on the second business day following the date on which all of the
conditions set forth in Article 6 have been (or can be at the Closing)
satisfied or have been waived by the party permitted to do so (the "Closing
Date").
37
39
Section 7.2 Filings at the Closing. Subject to the provisions of
Article 6 hereof, FPIC and Tenere shall at the Closing cause the Articles of
Merger to be filed and recorded in accordance with the provisions of Section
607.1105 of the FBCA and Sections 351.410 and 351.458 of the GBCLM and shall
take any and all other lawful actions and do any and all other lawful things
necessary to cause the Merger to become effective.
ARTICLE 8
TERMINATION
Section 8.1 Termination. This Agreement, other than the obligations
contained in Section 3.5(f), Article 9 and Section 10.2, which shall survive
any termination of this Agreement, may be terminated as to all parties hereto
and the transactions contemplated herein abandoned prior to the Closing:
(a by the mutual consent of the parties hereto;
(b by FPIC at any time after February 15, 1999, if at
such time the conditions set forth in Section 6.1 hereof have not been
satisfied through no fault of FPIC or Acquisition Corporation and FPIC gives
Tenere notice of such termination;
(c by FPIC at any time after holders of greater than ten
percent of the outstanding Tenere's Stock have delivered to Tenere a written
objection to the Merger pursuant to the provisions for dissenters' rights
provided by the GBCLM;
(d by Tenere at any time after February 15, 1999, if at
such time the conditions set forth in Section 6.2 hereof have not been
satisfied through no fault of Tenere or any other party and Tenere gives FPIC
notice of such termination;
(e by Tenere in accordance with the provisions of Section
3.4; and
(f by FPIC and Acquisition Corporation in accordance with
the provisions of Section 3.4.
Termination of this Agreement as provided in this
Agreement shall not affect any other rights or remedies any party may have at
law, in equity or otherwise for breach of this Agreement or otherwise,
including, but not limited to, any right FPIC and Acquisition Corporation may
have to receive the fee specified in Section 3.4(e) hereof.
ARTICLE 9
CONFIDENTIALITY
38
40
Section 9.1 Confidentiality. From and after the date hereof, unless
otherwise agreed to by the parties, each of the parties shall keep, and shall
ensure that its directors, officers, employees, contractors, consultants and
agents keep, confidential all information acquired from another party pursuant
to this Agreement or otherwise, including the contents of this Agreement and any
document delivered pursuant thereto or in connection therewith, except that the
foregoing restriction shall not apply to any information that: (i) is or
hereafter becomes generally available to the public other than by reason of any
default with respect to a confidentiality obligation under this Agreement, (ii)
was already known to the recipient party as evidenced by prior written documents
in its possession (unless the information is covered by a prior confidentiality
agreement between the parties), (iii) is disclosed to the recipient party by a
third party who is not in default of any confidentiality obligation to the
disclosing party hereunder, (iv) is developed by or on behalf of the receiving
party, without reliance on confidential information received hereunder, (v) is
submitted by the recipient party to governmental authorities or regulatory
bodies to facilitate the issuance of approvals necessary or appropriate for the
operation of their businesses, provided that reasonable measures shall be taken
to assure confidential treatment of such information, (vi) is provided by the
recipient party to third parties under appropriate terms and conditions,
including confidentiality provisions substantially equivalent to those in this
Agreement and with the consent of the other party or (vii) is otherwise required
to be disclosed in compliance with applicable laws or regulations or order by a
court or other government authority or regulatory body having competent
jurisdiction. Without limiting the generality of the foregoing, no press release
or similar public announcement or disclosure concerning this Agreement or the
transactions contemplated herein shall be made by any party hereto without the
prior consent of the other parties unless the party making the announcement or
disclosure is informed by such party's counsel that such information is required
to be disclosed in compliance with applicable laws or regulations or order by a
court or other government authority or regulatory body having competent
jurisdiction. Any party shall be entitled, in addition to any other right or
remedy it may have, at law or in equity, to an injunction, without the posting
of any bond or other security, enjoining or restraining the other parties from
any violation or threatened violation of this Section.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Consent to Jurisdiction and Service of Process. Any
legal action, suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby may be instituted in any state or
federal court sitting in Xxxxx County, Florida or Xxxxxx County, Missouri, and
each party agrees not to assert as a defense in any such action, suit or
proceeding, any claim that it is not subject personally to the jurisdiction of
such court, that the action, suit or proceeding is brought in an inconvenient
forum, that the venue of the action, suit or proceeding is improper or that
this Agreement or the subject matter hereof may not be enforced in or by such
court. Any and all service of process and any other notice in any such action,
suit or proceeding shall be effective against a party if given properly
pursuant to the United States Federal Rules of Civil Procedure or other
applicable rules.
39
41
Section 10.2 Expenses. Each party shall bear its respective legal
and other costs and expenses incurred in connection with the preparation,
execution, delivery and performance of this Agreement and the transactions
contemplated hereby without right of reimbursement from any other party.
Section 10.3 Notices. All notices and other communications
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed (with appropriate answerback received), sent by facsimile transmission
(with immediate confirmation thereafter) or sent by registered, certified or
express mail, postage prepaid, return receipt requested, or sent by a
nationally recognized overnight courier service, marked for overnight delivery.
Any such notice shall be deemed given when so delivered personally,
telegraphed, telexed (provided the correct answerback is received) or sent by
facsimile transmission (provided confirmation is received immediately
thereafter); or if mailed, upon receipt or rejection by the addressee; or if
sent by overnight courier, one business day after the date of delivery to the
courier service marked for overnight delivery; in each case addressed as
follows:
(a) If to FPIC or Acquisition Corporation, to:
Florida Physicians Insurance Company, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
with a copy to:
Xxxx X. Xxxxx, Esq.
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
Telephone: 904/000-0000
Facsimile: 904/353-1673
40
42
(b) If to Tenere, to:
The Tenere Group, Inc.
0000 X. Xxxxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, M.D.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. XxXxxx, Esq.
Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: 314/000-0000
Facsimile: (000) 000-0000
or to such other address as the parties hereto may specify from time to time by
notice given as provided herein.
Section 10.4 Amendment. This Agreement may be amended only by an
instrument in writing executed by each of the parties hereto.
Section 10.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 10.6 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida, without
regard to principles of conflicts of laws.
Section 10.7 Entire Agreement. This Agreement, together with the
Exhibits and Schedules hereto, sets forth the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof and supersedes any prior negotiations, agreements, understandings or
arrangements between the parties hereto with respect to the subject matter
hereof.
Section 10.8 Waivers. The provisions of this Agreement may only
be waived by an instrument in writing executed by the party granting the
waiver. The failure of a party at any time or times to require performance of
any provision hereof in any instance shall in no manner affect the right of
such party at a later time to enforce the same or any other provision of this
Agreement in respect of any subsequent instance. No waiver of any condition or
of the breach of any term contained in this Agreement in one or more instances
shall be deemed to be or construed as a
41
43
further or continuing waiver of such condition in respect of any subsequent
instance or breach or a waiver of any other condition or of the breach of any
other term of this Agreement. Without limiting the generality of the foregoing,
no action taken pursuant to this Agreement, other than proceeding with the
consummation of the transactions contemplated herein, shall be deemed to
constitute a waiver by the party taking such action or of compliance with any
representations, warranties, covenants or agreements contained in this
Agreement.
Section 10.9 Interpretation. When a reference is made in this
Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be
to an Article, Section, Exhibit or Schedule, respectively, of this Agreement
unless otherwise indicated. The table of contents and the headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation hereof.
Section 10.10 No Assignment. This Agreement and the rights,
interests and obligations hereunder may not be assigned by any party hereto, by
operation of law or otherwise, without the prior written consent of the other
parties, except that FPIC may assign all of its rights, interests and
obligations hereunder to FPIC Insurance Group, Inc., provided that FPIC
Insurance Group, Inc. agrees in writing to be bound by all of the terms,
conditions and provisions contained herein.
Section 10.11 No Survival of Representations and Warranties. The
respective representations and warranties, obligations, covenants and
agreements contained in this Agreement or in any Schedule, certificate or
letter delivered pursuant hereto shall expire and be terminated and
extinguished at the Effective Time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE TENERE GROUP, INC.
By
--------------------------------------------------------
Xxxxxxx X. Xxxxxxx, M.D., President
and Chief Executive Officer
FLORIDA PHYSICIANS INSURANCE
COMPANY, INC.
By
--------------------------------------------------------
TGI ACQUISITION CORPORATION
42
44
By
-------------------------------------------------------
43
45
TABLE OF CONTENTS
ARTICLE 1 THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Surviving Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Articles of Incorporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.3 Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.4 Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.5 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.6 Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 EFFECT OF THE MERGER ON SHAREHOLDERS AND OPTION HOLDERS . . . . . . . . . . . . . . . . . . . . . 2
Section 2.1 Conversion of Tenere's Common Stock and
Options and Acquisition Corporation's Common Stock . . . . . . . . . . . . . . . . . . 2
Section 2.2 Dissenting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.3 Exchange of Shares and Options. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.4 No Further Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5 Closing of Tenere's Stock Transfer Books. . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 3 CERTAIN AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.1 Due Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.2 Communications With Agents, Employees or Policyholders . . . . . . . . . . . . . . . 5
Section 3.3 Shareholder Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.4 No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.5 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.6 Certain Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
i
46
Section 3.7 Reinsurance Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.8 List of Shareholders and Optionees . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.9 Directors' and Officers' Indemnification . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 4 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.1 Representations and Warranties of Tenere . . . . . . . . . . . . . . . . . . . . . . 9
Section 4.2 Representations and Warranties of FPIC
and Acquisition Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 5 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.1 Covenants of Tenere . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.2 Covenants of FPIC and Acquisition Corporation . . . . . . . . . . . . . . . . . . . . 33
ARTICLE 6 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 6.1 FPIC and Acquisition Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 7 CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 37
Section 7.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.2 Filings at the Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 8 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 9 CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 9.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 10 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 10.1 Consent to Jurisdiction and Service of Process . . . . . . . . . . . . . . . . . . . 39
Section 10.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 10.4 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.5 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.8 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.9 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.10 No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 10.11 No Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . 42
ii
47
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
The AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment No.
1") is entered into as of this ____ day of January, 1999 by and among FLORIDA
PHYSICIANS INSURANCE COMPANY, INC., a Florida corporation ("FPIC"), TGI
ACQUISITION CORPORATION, a Florida corporation (the "Acquisition Corporation"),
and THE TENERE GROUP, INC., a Missouri corporation ("Tenere").
RECITALS
WHEREAS, on October 2, 1998, each of FPIC, Acquisition Corporation and
Tenere executed and delivered an Agreement and Plan of Merger (the "Merger
Agreement"), pursuant to which FPIC would acquire all of the outstanding stock
of Tenere through the merger of Acquisition Corporation with and into Tenere in
accordance with the Merger Agreement, and
WHEREAS, FPIC, Acquisition Corporation and Tenere now desire to modify
and amend the Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration of the Merger Agreement and the mutual
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto covenant and agree as follows:
1. Capitalized Terms. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings ascribed thereto in the Merger
Agreement.
2. Amendment. Article 8 of the Merger Agreement shall be deleted in its
entirety and replaced with the following:
ARTICLE 8
TERMINATION
Section 8.1 Termination. This Agreement, other than the
obligations contained in Section 3.4(f), Article 8 and Section 10.2,
which shall survive any termination of this Agreement, may be terminated
as to all parties hereto and the transactions contemplated herein
abandoned prior to the Closing:
(a) by the mutual consent of the parties hereto;
48
(b) by FPIC at any time after March 31, 1999. If at such time
the conditions set forth in Section 5.1 hereof have not been satisfied
through no fault of FPIC or Acquisition Corporation and FPIC gives Tenere
notice of such termination;
(c) by FPIC at any time after holders of greater than ten
percent of the outstanding Tenere's Stock have delivered to Tenere a
written objection to the Merger pursuant to the provisions for
dissenters' rights provided by the GBCLM;
(d) by Tenere at any time after March 31, 1999, if at such time
the conditions set forth in Section 6.2 hereof have not been satisfied
through no fault of Tenere or any other party and Tenere gives FPIC
notice of such termination;
(e) by Tenere in accordance with the provisions of Section 3.4;
and
(f) by FPIC and Acquisition Corporation in accordance with the
provisions of Section 3.4.
Termination of this Agreement as provided in this Agreement shall
not affect any other rights or remedies any party may have at law, in
equity or otherwise for breach of this Agreement or otherwise, including,
but not limited to, any right FPIC and Acquisition Corporation may have
to receive the fee specified in Section 3.4(a) hereof.
3. Ratification of Merger Agreement. Except as specifically provided
herein, the Merger Agreement shall remain in full force and effect and is
expressly ratified hereby.
4. Counterparts. This Amendment No. 1 may be executed in any number of
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5. Governing Law. This Amendment No. 1 shall be governed by and
construed in accordance with the laws of the State of Florida, without regard to
principles of conflicts of laws.
49
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
FLORIDA PHYSICIANS INSURANCE COMPANY, INC.
By:
------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
TGI ACQUISITION CORPORATION
By:
------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Secretary
THE TENERE GROUP, INC.
By:
------------------------------------------------------
Name:
Title: President/CEO
50
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 2 to Agreement and Plan of Merger (this "Amendment")
is made as of March ___, 1999, among FLORIDA PHYSICIANS INSURANCE COMPANY, INC.,
a Florida corporation ("FPIC"), TGI ACQUISITION CORPORATION, a Florida
corporation ("Acquisition Corporation"), and THE TENERE GROUP, INC., a Missouri
corporation ("Tenere").
RECITALS:
WHEREAS, FPIC, Acquisition Corporation and Tenere have previously entered
into an Agreement and Plan of Merger, dated October 2, 1998 (the "Merger
Agreement"), as amended by Amendment No. 1 dated January __, 1999 pursuant to
which FPIC would acquire all of the outstanding stock of Tenere through the
merger of Acquisition Corporation into Tenere in accordance with the terms and
conditions of the Merger Agreement; and
WHEREAS, certain amendments to the Merger Agreement have now become
necessary;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, FPIC, Acquisition Corporation, and Tenere
hereby agree as follows:
1. The references in Section 2.3 "Exchange of Shares and Options" to
"Schedule 4.1(e) (as revised pursuant to Section 3.9)" are hereby amended to
read "Schedule 4.1(e) (as revised pursuant to Section 3.8)."
2. The reference in Section 4.1(hh) "Brokers" to "the fairness opinion to
be issued as contemplated in Section 6.1(k) . . ." is hereby amended to read
"the fairness opinion to be issued as contemplated in Section 6.1(i)."
3. The reference in the first paragraph of Section 8.1 "Termination" to
"obligations contained in Section 3.5(f). . ." is hereby amended to read
"obligations contained in Section 3.4(f) . . .," and the reference in the last
paragraph of Section 8.1 to the "fee specified in Section 3.4(e)" is hereby
amended to read "fee specified in Section 3.4(f) . . . ."
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2
to Agreement and Plan of Merger as of the day and year first above written.
51
THE TENERE GROUP, INC.
----------------------------------------------------
Xxxxxxx X. Xxxxxxx, M.D., President and Chief
Executive Officer
FLORIDA PHYSICIANS INSURANCE
COMPANY, INC.
----------------------------------------------------
By:
Its:
TGI ACQUISITION CORPORATION
----------------------------------------------------
By:
Its:
