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AGREEMENT FOR
PURCHASE AND SALE OF ASSETS
BY AND AMONG
PENSION & BENEFIT FINANCIAL SERVICES, INC.,
XXXX X. XXXXXXX, X. XXXXXXX XXXXXX, XXXX X. XXXXX
AND
BENEFIT FINANCIAL SERVICES, INC.
DATED AS OF APRIL 11, 1997
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TABLE OF CONTENTS
PAGE
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ARTICLE I Purchase and Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Assets and Properties to be Transferred . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Excluded Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II Purchase Price, Payment, Costs and Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Purchase Price and Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Closing Costs; Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III Assumption of Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Liabilities Assumed by Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.2 Liabilities Not Assumed by Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV Closing of Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.2 Pension Benefit's Closing Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.3 Buyer's Closing Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE V Joint and Several Representations and Warrantiesof Pension Benefit and Sellers . . . . . . . . . . . . . . 5
5.1 Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2 Organization; Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.3 Power and Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.4 Subsidiaries and Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.7 Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.8 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.9 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.10 Absence of Certain Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.11 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.12 Title to Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.13 Litigation and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.14 Condition of Purchased Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.15 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.16 Owned Personal Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.17 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.18 Customers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.19 Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.20 Employment and Labor Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.21 Interested Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.22 Necessary Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.23 Financial Advisor Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.24 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI Representations and Warranties of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.1 Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.2 Organization; Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.3 Governmental Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.4 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.5 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.6 Financial Advisor Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ARTICLE VII Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.1 Conduct of Pension Benefit's Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.2 Tax Returns and Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.3 Payment of Pension Benefit's Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.4 Access and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.5 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.6 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.7 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.8 Employment Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII Closing Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1 Conditions Precedent to Obligations of Pension Benefit and Sellers. . . . . . . . . . . . . . . 17
8.2 Conditions Precedent to Obligations of Buyer. . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.3 Best Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX Survival of Representations and Warranties/Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.1 Survival of Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.2 Pension Benefit's and the Sellers' Indemnity Agreement . . . . . . . . . . . . . . . . . . . . 18
9.3 Buyer's Indemnity Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.4 Conditions of Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.5 Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.6 No Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9.7 Adjustment of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9.8 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9.9 Non-Exclusive Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE X Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.1 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE XI Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.1 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.2 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.3 Waivers and Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.5 Sales and Use Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.6 Bulk Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.7 Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.8 Right to Open Mail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.9 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.10 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11.11 Parties in Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.12 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11.13 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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AGREEMENT FOR PURCHASE AND SALE OF ASSETS
THIS AGREEMENT (this "Agreement") is made as of this 11th day of
April, 1997, by and among PENSION & BENEFIT FINANCIAL SERVICES, INC. ("Pension
Benefit") and XXXX X. XXXXXXX ("Xxxxxxx"), J. XXXXXXX XXXXXX ("Xxxxxx"), XXXX
X. XXXXX ("Xxxxx") (Xxxxxxx, Xxxxxx and Xxxxx each a, "Seller" and
collectively, the "Sellers"), and BENEFIT FINANCIAL SERVICES, INC., an Alabama
corporation ("Buyer").
WITNESSETH:
WHEREAS, Pension Benefit and Sellers are in the business of operating
a financial services company located in and around Montgomery, Alabama at the
location identified on Schedule 1.1 specializing in the planning, designing,
implementation and administration of employee benefit plans (collectively the
"Business"); and
WHEREAS, Buyer wishes to purchase from Pension Benefit and Sellers,
and Pension Benefit and Sellers wish to sell, transfer, assign, convey and
deliver to Buyer certain assets and property, including the Business as a going
concern, and Buyer wishes to assume certain contractual obligations of Pension
Benefit, all upon the terms and conditions hereinafter set forth; and
WHEREAS, Sellers are the sole shareholders of Pension Benefit (each a
"Shareholder") and, as a result thereof, will be the primary beneficiaries of
the transactions contemplated herein and, as such, are willing to execute and
enter into this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained herein and other good and valuable consideration, the receipt,
adequacy and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
ARTICLE I
Purchase and Sale of Assets
1.1 Assets and Properties to be Transferred. Subject to the terms
and conditions of this Agreement, and on the basis of the representations and
warranties hereinafter set forth, Pension Benefit and Sellers hereby sell,
transfer, assign, convey and deliver to Buyer, and Buyer hereby purchases from
Pension Benefit and Sellers, all of the tangible and intangible property listed
on Schedule 1.1 annexed hereto, (excluding those certain assets described on
Schedule 1.2 annexed hereto), in each case free and clear of all mortgages,
liens, encumbrances, equities, claims and obligations to other persons of every
kind and character, except with respect to the Assumed Liabilities as described
in Section 3.1 (hereinafter collectively referred to as the "Purchased
Assets").
1.2 Excluded Assets. The parties to this Agreement expressly
acknowledge and agree that there shall be excluded from the Purchased Assets to
be transferred to the Buyer hereunder the assets, rights and properties
described on Schedule 1.2 annexed hereto (hereinafter collectively referred to
as the "Excluded Assets").
ARTICLE II
Purchase Price, Payment, Costs and Accounts Receivable
2.1 Purchase Price and Payment. Upon and subject to the terms and
conditions of this Agreement, Buyer shall transfer to Pension Benefit at the
Closing (as defined in Section 4.1) the
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aggregate sum of Two Hundred Eighty Thousand Eight Hundred Twenty-Five Dollars
and 23/100's ($280,825.23) (the "Purchase Price") payable by Buyer in
immediately available funds by check.
2.2 Closing Costs; Transfer Taxes. Sellers shall pay, at the
Closing or, if due thereafter, promptly when due, all gross receipts taxes,
gains taxes, transfer taxes, sales taxes, use taxes, excise taxes, stamp taxes,
conveyance taxes and other taxes applicable to, arising out of or imposed upon
the transactions contemplated hereunder.
2.3 Accounts Receivable Buyer shall have the sole right to
collect all accounts receivable transferred, and Buyer shall have the right to
endorse, without recourse, with the names Pension & Benefit Financial Services,
Inc. (or Lambert, Massey, Xxxxx & Xxxxxx, Inc., as the case may be) and
Benefit Financial Services, Inc. any checks received on account of any accounts
receivable, or similar items, but Buyer need only use reasonable efforts to
collect such accounts. Buyer shall have recourse against Sellers for any
credit losses incurred with respect to the transferred accounts receivable and
with respect to non-existing or overstated accounts receivable. Within one
hundred (100) days after Closing, Buyer shall prepare, and promptly thereafter
submit, a report to Sellers setting forth all relevant information concerning
collection of accounts receivable during the ninety (90) day period following
Closing. If such report shows a balance due to Buyer for any uncollected
accounts, Buyer may offset such amount from any sums due to Sellers under the
Employment Agreements (as hereinafter defined), provided, that if Sellers
dispute the amount Buyer proposes to offset, the dispute shall be resolved by
arbitration as set forth in Section 11.10 hereof. At the request of Sellers,
Buyer shall reassign to Sellers the accounts receivable with respect to which
Buyer has been reimbursed by Sellers as set forth above; however, unless Buyer
reassigns such accounts receivable to Sellers, Buyer shall, when, as, if and to
the extent that any such account is collected, remit to Sellers any amounts due
to Sellers by reason of the ultimate collection of such account.
ARTICLE III
Assumption of Liabilities
3.1 Liabilities Assumed by Buyer. Simultaneously with the
execution of this Agreement, the Buyer shall by written instrument assume, as
of the Closing Date, and thereafter shall fully and timely perform and
discharge when due in accordance with their terms, all liabilities and
obligations of the Sellers that are described on Schedule 3.1 annexed hereto
(hereinafter collectively referred to as the "Assumed Liabilities").
3.2 Liabilities Not Assumed by Buyer. Buyer shall not assume or
incur, and Sellers shall remain liable to pay, perform and discharge, all
liabilities and obligations of any of the Sellers other than the Assumed
Liabilities.
ARTICLE IV
Closing of Purchase and Sale
4.1 Closing. Closing of the purchase and sale provided for herein
(the "Closing") shall occur at the offices of Buyer, 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx on April 11, 1997 (the "Closing Date"), or at such other
place or time as the parties shall mutually agree upon.
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4.2 Pension Benefit's Closing Obligations. At the Closing,
Pension Benefit shall deliver to the Buyer:
(a) an executed original of a General Assignment and Xxxx
of Sale, in substantially the form as annexed hereto as Exhibit A, conveying
the Purchased Assets to Buyer;
(b) a certified copy of the following documents:
(i) a copy of the Articles of Incorporation and
Bylaws of Pension Benefit, certified as of a date not earlier than three
business days prior to the Closing Date from the Secretary of State of Alabama,
a certificate from such Secretary of State not earlier than three business days
prior to the Closing Date as to the existence of Pension Benefit, and a
certificate from the Alabama Department of Revenue not earlier than three
business days prior to the Closing Date as to the good standing of Pension
Benefit.
(ii) a certificate of the Secretary of Pension
Benefit, dated as of the Closing Date and certifying (A) that attached thereto
is a true and complete copy of resolutions duly adopted by the Board of
Directors and Shareholders of Pension Benefit authorizing the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, and (B) as to
the incumbency and specimen signature of each officer of Pension Benefit
executing this Agreement and the transactions contemplated hereby; and
(c) all such other agreements, certificates, documents or
instruments with respect to the existence and authority of Pension Benefit and
Sellers;
(d) original executed copies of all lien waivers and
releases (including appropriate UCC termination statements dated not earlier
than two days prior to the Closing Date) from third parties which Buyer's
counsel may deem reasonably necessary or desirable to evidence the proper
transfer and assignment by Pension Benefit to Buyer of the Purchased Assets
free and clear of all liens and encumbrances of any nature, kind or character;
(e) an executed original consent from all third parties
(such consent to be in form and substance satisfactory in the reasonable
judgment of Buyer's counsel) for each contract or lease included within the
Purchased Assets for which a consent to assignment is necessary or desirable in
the reasonable judgment of Buyer's counsel, including, without limitation, a
consent from the landlord with respect to the assignment of the office lease,
or in the alternative Pension Benefit will deliver to Buyer written evidence,
in form and substance satisfactory in the reasonable judgment of Buyer's
counsel, whereby the appropriate third party agrees to grant such consent
subject to Buyer or Pension Benefit curing certain expressly enumerated
arrearages or other defaults;
(f) an opinion of counsel to Pension Benefit with respect
to such matters and in such form as shall be agreed upon between such counsel
and Buyer or Buyer's counsel; and
(g) all of the books and records of Pension Benefit
included in the Purchased Assets, including, but not limited to, true and
complete copies of any or all books of account, and Contracts to which Pension
Benefit or any of the Sellers are a party; and such other documents as shall be
reasonably requested by Buyer;
(h) written certification of Sellers that there have been
no material adverse changes to the financial condition of Pension Benefit as
shown on the Balance Sheet (as defined in Section 5.9(a)); and Pension Benefit
has no liabilities, other than as set forth on the Balance Sheet;
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(i) Employment Agreements (as defined in Section 7.8)
executed by each of the Sellers in the forms as Exhibit C annexed hereto;
(j) such other documents, instruments, agreements and
certificates as Buyer or its counsel may reasonably request.
4.3 Buyer's Closing Obligations. At the Closing Buyer shall
deliver to Pension Benefit:
(a) an executed original of an Assumption of the Assumed
Liabilities, in form and substance substantially similar to Exhibit B annexed
hereto;
(b) a certified copy of the resolutions duly adopted by
the board of directors of the Buyer authorizing and approving the execution and
delivery by Buyer of this Agreement and the consummation by the Buyer of the
transactions contemplated hereby and thereby, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect;
(c) all such certified resolutions, certificates,
documents or instruments or agreements as Pension Benefit or its counsel may
reasonably request;
(d) the Employment Agreements executed by Buyer;
(e) the Purchase Price in accordance with Section 2.1
hereof; and
(f) an opinion of counsel to Buyer with respect to such
matters and in such form as shall be agreed upon between such counsel and
Pension Benefit or Pension Benefit's counsel.
ARTICLE V
Joint and Several Representations and Warranties
of Pension Benefit and Sellers
As an inducement to Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, and with the knowledge that
Buyer shall rely thereon, Pension Benefit and Sellers jointly and severally
represent and warrant to Buyer the following as of the date hereof:
5.1 Capacity. Sellers have the full power, authority and capacity
necessary to enter into and perform the obligations under this Agreement, and
to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Sellers, and constitutes the legal, valid and
binding obligation of them, enforceable in accordance with its terms, except as
such enforceability is subject to the effect of (a) any applicable bankruptcy,
insolvency, reorganization or similar laws relating to or affecting creditors'
rights generally and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
5.2 Organization; Qualification. Pension Benefit is a corporation
duly incorporated and organized, validly existing and in good standing under
the laws of the State of Alabama, and Pension Benefit has all requisite power
and authority to own, lease or operate all of its properties and assets and to
carry on its business as it is now being conducted. Sellers are the sole
holders of all of the issued and outstanding capital stock of Pension Benefit.
Sellers have obtained, or will have obtained by the Closing Date, any consent
needed from any third party to the execution, delivery and performance by
Pension Benefit and Sellers of this Agreement.
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5.3 Power and Authority. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Pension Benefit. This Agreement has been duly authorized, executed and
delivered by Pension Benefit and constitutes a valid and binding agreement of
Pension Benefit, enforceable against Pension Benefit in accordance with its
terms, except as such enforceability is subject to the effect of (a) any
applicable bankruptcy, insolvency, reorganization or similar laws relating to
or affecting creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5.4 Subsidiaries and Investments. Pension Benefit has no
Subsidiaries and Pension Benefit has not in the past and does not currently
own, directly or indirectly, any capital stock or other equity, ownership,
proprietary or voting interest in any Person, other than Pension Benefit's
wholly-owned subsidiary, Corporate Financial Services, Inc., which shall be
dissolved prior to the Closing Date. For purposes of this Agreement, a
"Person" shall mean a natural person or any legal, commercial or governmental
entity, such as, but not limited to, a corporation, general partnership, joint
venture, limited partnership, limited liability company, trust, business
association or any person acting in a representative capacity.
5.5 Governmental Authorization. The execution, delivery and
performance by Pension Benefit and Sellers of this Agreement and the
consummation by each of them of the transactions contemplated hereby requires
no action by or in respect of, or filing with any federal, state, county,
local, foreign or other governmental or public agency, instrumentality,
commission, authority, grand jury, official, board or body (collectively, any
"Governmental Authority").
5.6 No Violation; Consents. The execution, delivery and
performance by each of Pension Benefit and Sellers of this Agreement and the
consummation by each of them of the transactions contemplated hereby do not and
will not (a) contravene or constitute a default under or give rise to (or give
rise after the giving of notice, the passage of time or both) a right of
termination, cancellation or acceleration of any obligation of Pension Benefit
and/or Sellers or to a loss of any benefit to which any of Pension Benefit and
Sellers is entitled under any provision of (i) Pension Benefit's Articles of
Incorporation or Bylaws, (ii) any law, regulation, judgment, injunction, order
or decree binding upon Pension Benefit and Sellers or their respective
properties, including without limitation, the Purchased Assets, or (iii) any
agreement, contract or other instrument binding upon Pension Benefit and/or
Sellers or any license, franchise, permit or other similar authorization held
by any of Pension Benefit and/or Sellers, without limitation; (b) result in the
creation or imposition of any Lien on any asset of any of Pension Benefit
and/or Sellers, including, without limitation, the Purchased Assets, or (C)
require any consent, approval or authorization of, notification to, or filing
with any Person.
5.7 Authorizations. Pension Benefit and Sellers, to the best of
their knowledge, possess all permits, licenses, waivers, authorizations, and
approvals from third parties, including without limitation, Governmental
Authorities, which are necessary to conduct the Business in the manner in which
it presently is being conducted (the "Authorizations"). A true, complete and
correct list of the Authorizations is attached hereto as Schedule 5.7. The
Authorizations are valid, in good standing and in full force and effect and
Pension Benefit is in compliance with each such Authorization. No event has
occurred with respect to any of the Authorizations which permits, or after
notice, or lapse of time, or both, would permit, revocation or termination
thereof or would result in any other impairment of the rights of Pension
Benefit and/or Sellers with respect to the Authorizations. There are no
applications, petitions, objections or other pleadings with any Governmental
Authority pending, or threatened, which question the validity of or contest any
of the Authorizations.
5.8 Payment of Taxes. Pension Benefit and Sellers have filed all
federal, state, and local tax returns required to be filed and has made timely
payment of all taxes which are due and payable,
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including any and all employment taxes of every nature, kind and character and
there exists no tax liens or other encumbrances on any of the Purchased Assets
being sold pursuant to this Agreement.
5.9 Financial Statements. Attached hereto as Schedule 5.9 is a
true, complete and correct copy of the unaudited balance sheet of Pension
Benefit as of March 31, 1997 (the "Balance Sheet") and unaudited statement of
operations of Pension Benefit as of March 31, 1997 (the "Income Statement" and
together with the Balance Sheet, the "Financial Statements"). The Financial
Statements present fairly, in accordance with the books and records of Pension
Benefit, the financial position of Pension Benefit as of the date indicated and
the results of operations and cash flows of Pension Benefit for the periods
then ended; provided, however, that such balance sheet fails to disclose a
promissory note for $60,000 payable to Xxxxxxx Xxxxxx ("Xxxxxx"), issued for
the redemption of shares of common stock of Pension Benefit owned by Xxxxxx.
5.10 Absence of Certain Changes. Since March 31, 1997, there has
not been any transaction or occurrence in which Pension Benefit has:
(a) failed to pay or discharge when due any liabilities the
failure of which to pay or discharge has caused or will cause any damage or
risk of loss to Pension Benefit or any of Pension Benefit's assets or
properties, including without limitation, the Purchased Assets;
(b) sold, encumbered, assigned or transferred any of the Purchased
Assets;
(c) created, incurred, assumed or guaranteed any indebtedness for
money borrowed, or mortgaged, pledged or subjected any of the Purchased Assets
to any mortgage, lien, pledge, security interest, conditional sales contract or
other encumbrance; provided, however, that Pension Benefit has incurred that
certain promissory note for $60,000 payable to Xxxxxx referenced in Section
5.9;
(d) made or suffered any amendment or termination of any Contract
to which it is a party or by which it or the Purchased Assets are bound, or
canceled, modified or waived any debts or claims held by it or waived any
rights held by it, whether or not in the ordinary course of business;
(e) declared, set aside or paid any dividend or made or agreed to
make any other distribution or payment in respect of its capital shares or
redeemed, purchased or otherwise acquired or agreed to redeem, purchase or
acquire any of its capital shares; provided, however, that Pension Benefit has
redeemed those certain shares of common stock of Pension Benefit owned by
Xxxxxx referenced in Section 5.9;
(f) suffered any damage, destruction or loss, whether or not
covered by insurance, (i) materially and adversely affecting the Business,
Purchased Assets, operations, prospects or condition (financial or otherwise)
of Pension Benefit or (ii) of any item or items carried on its books of account
individually or in the aggregate at more than $10,000, or suffered any
repeated, recurring or prolonged shortage, cessation or interruption of
supplies or utility or other services required to conduct its business and
operations;
(g) suffered any material adverse change in the Business,
Purchased Assets, operations, prospects or condition (financial or otherwise)
of Pension Benefit;
(h) received notice or had knowledge of any actual or threatened
labor trouble, strike or other occurrence, event or condition of any similar
character which has had or might have an adverse effect on the Business,
Purchased Assets, operations, prospects or condition (financial or otherwise)
of Pension Benefit;
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(i) made commitments or agreements for capital expenditures or
capital additions or betterments exceeding in the aggregate $10,000;
(j) changed any of the accounting principles followed by it or the
methods of applying such principles; or
(k) entered into any transaction other than in the ordinary course
of business consistent with past practice.
5.11 Absence of Undisclosed Liabilities. Pension Benefit has no
known liabilities or obligations of any kind, except as and to the extent
reflected, reserved against or otherwise disclosed in the Financial Statements.
5.12 Title to Assets. Except for the leasehold interests
identified on the Schedules hereto, Pension Benefit and Sellers have good and
marketable title to all of the Purchased Assets, free and clear of all
mortgages, liens, pledges, charges, or encumbrances of any nature, kind or
character whatsoever.
5.13 Litigation and Claims. There are no (a) legal,
administrative, arbitration, or other proceedings pending against Pension
Benefit and/or any of the Sellers and neither Pension Benefit and/or any of the
Sellers know of any basis therefor, and (b) there are no (i) governmental
investigations or (ii) proposed or threatened claims of any party not fully
covered by insurance. Pension Benefit and/or Sellers have substantially
complied with, and are not in default in any material respect under any law,
ordinance, requirements, regulations or orders applicable to the Business,
including without limitation all applicable safety, environmental, pollution,
and equal opportunity (including affirmative action compliance) laws or
regulations. Pension Benefit and/or Sellers have complied with and is not in
default in any material respect under any applicable federal, state, and local
laws and regulations relating to the employment of labor, including without
limitation, federal, state, and local withholding tax laws, federal labor laws,
wage and hour laws and discrimination laws.
5.14 Condition of Purchased Assets. All of the Purchased Assets
are in good operating condition and repair, subject only to usual wear and tear
from normal use thereof.
5.15 Contracts. Schedule 1.1 annexed hereto sets forth a complete
and accurate list of all material contracts to which Pension Benefit and/or any
of the Sellers are a party or which affect or relate to the Purchased Assets or
the Business or are used or useful in the Business as a going concern (each a,
"Contract" and collectively, the "Contracts") including, without limitation,
those set forth below. As used herein, the term Contract includes any written
or oral agreement, commitment, understanding or arrangement, including purchase
or sales of goods or services commitments and letters of credit or their
equivalent.
(a) all Contracts (excluding Employee Benefit Plans as
defined in Section 5.20(a)) providing for a commitment of employment
or consultation services, including, without limitation, with any
agent, employee, partner, officer, director or shareholder;
(b) all Contracts with any Person containing any
provision or covenant prohibiting or materially limiting the ability
of any of the Sellers to engage in any business activity or compete
with any Person in connection with the Business or, prohibiting or
materially limiting the ability of any Person to compete with Pension
Benefit and/or any of the Sellers in connection with the Business;
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(d) all lease, rental or occupancy agreements, licenses,
installment and conditional sales agreements, and other Contracts
affecting the ownership of, leasing of, title to, use of, or any
leasehold or other interest in, any real or personal property;
(e) all licensing agreements or other Contracts with
respect to patents, trademarks, copyrights, or other intellectual
property, including agreements with current or former employees,
consultants, or contractors regarding the appropriation or the
non-disclosure of any of intellectual property assets;
(f) all material partnership, joint venture,
shareholders' or other similar Contracts with any Person in connection
with the Business;
(g) all Contracts with sales agencies or franchises with
whom Pension Benefit and/or any of the Sellers deal(s) in connection
with the Business;
(h) all Contracts relating to the future disposition or
acquisition of any Assets individually or in the aggregate material to
the Condition of the Business;
(i) all Contracts of warranty, guaranty, surety and/or
other similar undertakings extended by Pension Benefit and/or any of
the Sellers;
(j) all powers of attorney that are currently effective
and outstanding;
(k) all other Contracts with respect to the Business that
(A) involve the payment or potential payment, pursuant to the terms of
any such Contract, by or to Pension Benefit and/or Sellers of more
than $5,000 annually and (B) cannot be terminated within ninety (90)
days after giving notice of termination without resulting in any
material cost or penalty to Pension Benefit, including promissory
notes, loan, credit or other financing agreements or arrangements or
evidence of indebtedness; and
(l) all amendments, supplements, and modifications
(whether oral or written) in respect of any of the foregoing.
Pension Benefit and/or Sellers have performed in all respects all contractual
obligations required to be performed by it to date under each Contract and, to
the best of Seller's knowledge and belief is not in default under any Contract
to which it is a party or by which it is bound and no other party to any such
Contract is in material default in the performance of its obligations
thereunder or has taken any action which constitutes, or with notice or lapse
of time would constitute, a breach or anticipatory breach thereof. Except as
specifically referenced in Schedule 1.1 all Contracts listed therein are
assignable to Buyer without modification of the terms thereof and without the
consent of any party other than Pension Benefit who is a party thereto.
5.16 Owned Personal Property. Schedule 5.16 contains a true and
correct list of:
(i) All equipment owned by Pension Benefit (including
automobiles, if any); and
(ii) All furniture and fixtures and other items of
tangible personal property owned by Pension Benefit.
5.17 Books and Records. The books and records of Pension Benefit
are, correct and complete in all material respects, have been maintained in
accordance with good business practice and in accordance with all laws,
regulations and other requirements applicable to its business and operations.
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5.18 Customers. Attached hereto as Schedule 5.18 is a complete and
accurate list of all current and active prospective customers of the Business
known to any of the Sellers and the approximate dollar value of services that
has been and was provided to such customers.
5.19 Insurance Policies. Schedule 5.19 sets forth a true, complete
and correct list and description of all insurance policies in force naming
Pension Benefit and any of the Sellers or any employee of Pension Benefit, as
an insured or beneficiary or as a loss payee or for which Pension Benefit has
paid or is obligated to pay all or part of the premiums including, without
limitation, all liability, malpractice, fire, health and life insurance
policies. Neither Pension Benefit nor any of the Sellers have received notice
of any pending or threatened termination or premium increase (retroactive or
otherwise) with respect thereto, and Pension Benefit is in compliance with all
conditions contained therein. There have been no lapses (whether cured or not)
in the coverage provided under such policies during the term of such policies,
as extended or renewed.
5.20 Employment and Labor Matters.
(a) Schedule 5.20(a) contains a true, complete and
correct list of (i) all employees of Pension Benefit and (ii) the
number of employees in each job classification employed by Pension
Benefit along with a complete and accurate Schedule (the "Employee
Benefits Schedule") of the direct compensation (including, without
limitation, wages, salaries and actual or anticipated bonuses) plus an
accurate description of other benefits paid or provided in the fiscal
year ended December 31, 1996 and to be paid or provided in the current
fiscal year (collectively, the "Employee Benefit Plans"). Schedule
5.20(a) contains true, complete and correct copies of all written
personnel policies, rules or procedures and true, complete and correct
descriptions of all oral personnel policies, rules or procedures of
Pension Benefit. Except as disclosed on Schedule 5.20(a), the
employment of all employees of Pension Benefit is terminable at will
by Pension Benefit without any penalty or severance obligation of any
kind on the part of Pension Benefit and/or the Sellers. Other than as
disclosed on Schedule 5.20(a), Pension Benefit shall not owe any
amounts to any of its employees for any reason whatsoever as of the
Closing Date, including, without limitation, vacation and sick leave.
(b) Except as and to the extent set forth in Schedule
5.20(a), (i) no attempt to organize any group or all of the employees
of Pension Benefit has been made, proposed or threatened; (ii) Pension
Benefit is not a party to any union agreement or collective bargaining
agreement or work rules or practices agreed to with any labor
organization or employee association applicable to any employees of
Pension Benefit, (iii) Pension Benefit has not had any Equal
Employment Opportunity Commission charges or other claims of
employment discrimination made against it; (iv) no wage and hour
department investigations have been made of Pension Benefit; (v) no
labor strike, dispute, slowdown, stoppage or lockout is pending or has
been threatened against or affecting Pension Benefit, the Business or
the Purchased Assets during the past five years; (vi) no union claims
to represent any of the employees of Pension Benefit; (vii) Pension
Benefit has not engaged in any unfair labor practices as defined in
the National Labor Relations Act or other applicable Regulation;
(viii) no unfair labor practice charge or complaint against Pension
Benefit is pending or threatened before the National Labor Relations
Board or any similar Governmental Authority; (ix) there is no
grievance against Pension Benefit arising out of any collective
bargaining agreement or other grievance procedure; and (x) no claim is
pending or threatened in any forum by or on behalf of any present or
former employee of Pension Benefit, any applicant for employment or
classes of the foregoing alleging breach of any express or implied
Contract of employment, any Regulation governing employment or the
termination thereof or other discriminatory, wrongful or tortious
conduct in connection with the employment relationship.
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(c) None of the Sellers has received any notice that any
of the employees of Pension Benefit will terminate his or her
employment at any time prior to the Closing Date or will not agree to
continue his employment with Buyer on substantially the same terms and
conditions after the Closing Date as his or her current employment by
Pension Benefit.
5.21 Interested Transactions. Except as set forth in Schedule
5.21, Pension Benefit is not currently a party to any Contract, loan or other
transaction with any of the Sellers or any Relative of the Sellers, or in which
any such Person has any direct or indirect interest (other than as a
Shareholder or employee of Pension Benefit or Shareholder) in Pension Benefit.
For purposes of this Agreement, a "Relative" shall mean, with regard to any
natural Person, his spouse, parent, sibling, child, aunt, uncle, niece, nephew
or grandparent, or a trustee or other representative appointed to represent any
such natural Person. Except as described in Schedule 5.21, none of the Sellers
or Relative of the Sellers owns or during the last three years has owned,
directly or indirectly, or has during the last three years had a substantial
ownership interest in, any Person which is a party to, or in any property which
is the subject of, any Contract with Pension Benefit, and none of the Sellers
or any Relative of any of the Sellers owns directly or indirectly, or has an
interest in, any Person which is in competition with Pension Benefit and/or any
of the Sellers.
5.22 Necessary Assets. The Purchased Assets constitute all of the
assets necessary to the operation of the Business as previously conducted by or
on behalf of Pension Benefit.
5.23 Financial Advisor Fees. There is no investment banker,
broker, finder or other agent or intermediary which has been retained by or is
authorized to act on behalf of Pension Benefit and/or Sellers who might be
entitled to any fee or commission from Buyer upon consummation of the
transactions contemplated by this Agreement.
5.24 Disclosure. Neither this Agreement nor any schedule, exhibit
or certificate delivered in accordance with the terms hereof or any document or
statement in writing which has been supplied by or on behalf of Pension
Benefit, or by any of Pension Benefit's directors or officers, in connection
with the transactions contemplated hereby, contains any untrue statement of
material fact, or omits any statement of a material fact necessary in order to
make the statements contained herein or therein not misleading. There is no
fact known to Pension Benefit and/or any of the Sellers which materially and
adversely affects the Business, or the prospects or financial condition of
Pension Benefit or its properties or assets, which has not been set forth in
this Agreement or in the schedules or certificates in writing furnished in
connection with the transactions contemplated by this Agreement.
ARTICLE VI
Representations and
Warranties of Buyer
As an inducement to Pension Benefit and Sellers to enter into this
Agreement and to consummate the transactions contemplated hereby, and with the
knowledge that Pension Benefit and Sellers shall rely thereon, Buyer represents
and warrants to Pension Benefit and Sellers the following:
6.1 Capacity. Buyer has the full power, authority and capacity
necessary to enter into and perform the obligations under this Agreement, and
to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Buyer, and constitutes the legal, valid and
binding obligation, enforceable in accordance with its terms, except as such
enforceability is subject to the effect of (a) any applicable bankruptcy,
insolvency, reorganization or similar laws relating to or
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affecting creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
6.2 Organization; Qualification. The Buyer is a corporation duly
incorporated and organized, validly existing and in good standing under the
laws of the State of Alabama, and the Buyer has all requisite power and
authority to own, lease or operate all of its properties and assets and to
carry on its business as it is now being conducted. The character of the
property owned or leased by the Buyer and the nature of the Business does not
require Pension Benefit to be qualified or licensed to transact business in any
jurisdiction other than the State of Alabama. SouthFirst Bancshares, Inc. is
the sole holder of all of the issued and outstanding capital stock of the
Buyer. The Buyer has obtained, or will have obtained by the Closing Date, any
consent needed from any third party to the execution, delivery and performance
by the Buyer of this Agreement.
6.3 Governmental Authorization. The execution, delivery and
performance by the Buyer of this Agreement and the consummation by it of the
transactions contemplated hereby requires no action by or in respect of, or
filing with any Governmental Authority.
6.4 Litigation. There is no governmental investigation or
proceeding or governmental or private litigation pending or threatened against
Buyer or relating to Buyer's business that would impair Buyer's ability to
perform its obligations under this Agreement, nor is there any basis therefor
and there are no outstanding judgments, orders, writs, injunctions or decrees
of any court, government or governmental agency against or affecting Buyer's
ability to perform its obligations under this Agreement.
6.5 Disclosure. Neither this Agreement nor any certificate
delivered in accordance with the terms hereof or any document or statement in
writing which has been supplied by or on behalf of Buyer in connection with the
transactions contemplated hereby, contains any untrue statement of material
fact, or omits any statement of a material fact necessary in order to make the
statements contained herein or therein not misleading.
6.6 Financial Advisor Fees. There is no investment banker,
broker, finder or other agent or intermediary which has been retained by or is
authorized to act on behalf of Buyer who might be entitled to any fee or
commission from Buyer upon consummation of the transactions contemplated by
this Agreement.
ARTICLE VII
Additional Covenants
7.1 Conduct of Pension Benefit's Business. Prior to the Closing
Date, Pension Benefit and/or Sellers shall:
(a) not issue or sell or enter into any Contract to issue
or sell, any shares of capital stock of Pension Benefit, or any
options, warrants, securities or rights exchangeable for any such
shares, or rights to purchase the foregoing, without the prior written
consent of Buyer;
(b) not purchase or redeem or Contract to purchase or
redeem any shares of capital stock of Pension Benefit, without the
prior written consent of Buyer;
(c) not propose, solicit or enter into any Contract with
any Person providing for or relating to the acquisition or proposed
acquisition of Pension Benefit, any shares of capital stock
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of Pension Benefit, or the Purchased Assets, whether by way of merger,
consolidation, purchase of shares, purchase of assets or otherwise,
without the prior written consent of Buyer;
(d) not enter into any Contract relating to the proposed
or actual acquisition of any portion of the capital stock, assets or
business of any Person, without the prior written consent of Buyer;
(e) conduct the Business only in the normal and ordinary
course, consistent with past practice, in substantially the same
manner as presently being conducted, and refrain from entering into
any transaction or Contract other than in the ordinary course of
business consistent with past practice;
(f) consult with Buyer prior to undertaking any new
business opportunity and not undertake such new business opportunity,
without the prior written consent of Buyer;
(g) notify Buyer in writing of any emergency or other
change in the normal course of the operation of Pension Benefit, the
Business or the Purchased Assets and of any complaints,
investigations, adjudicatory proceedings or hearings of any
Governmental Authority (or communications indicating that the same may
be contemplated), affecting Pension Benefit, the Sellers, the Business
or the Purchased Assets, and keep Buyer fully informed of such events
and permit its representatives access to all materials prepared in
connection therewith;
(h) not enter into any new employment Contract or any
commitment to employees (including any commitment to pay retirement or
other benefits), without the prior written consent of Buyer;
(i) not increase the compensation (including fringe
benefits) payable or to become payable to any officer, director or
employee of Pension Benefit, without the prior written consent of
Buyer;
(j) not change the banking or safe deposit arrangements
of Pension Benefit;
(k) except in the ordinary course of business consistent
with past practice, not (i) create or incur any indebtedness, (ii)
enter into or terminate any lease of real property, or (iii) release
or create any Liens;
(l) except in the ordinary course of business consistent
with past practice, not make or commit to make any capital
expenditure, or enter into any lease of equipment as lessee or lessor;
(m) not declare or pay any dividend or increase any
compensation (including fringe benefits) paid to Sellers or any
Relative of the Sellers, without the prior written consent of Buyer;
(n) not sell any asset or make any commitment relating to
the Purchased Assets other than in the ordinary course of business
consistent with past practice;
(o) not make any changes in the accounting methods or
practices of Pension Benefit;
(p) not take any action, or omit to take any action,
which would cause the representations and warranties contained in
Article V hereof to be incorrect or incomplete; and
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(q) not enter into any Contract which will result in or
cause to occur a violation of any of the items contained in paragraphs
(a) through (p) of this Section.
7.2 Tax Returns and Reports. Pension Benefit shall prepare and
file or cause the preparation and filing of all Tax Returns, required by law,
and promptly pay all Taxes which are required through and as of the Closing
Date. In the event that Pension Benefit should subsequently be held liable for
any deficiency in respect of Taxes attributable to periods ending on or
including the Closing Date, and in the event that contrary to the provisions of
this Agreement, Buyer is for any reason required to pay any such amounts,
Sellers shall promptly pay or reimburse Buyer for any such payments, plus
interest and penalties assessed by any taxing authority thereon.
7.3 Payment of Pension Benefit's Obligations. With the exception
of those obligations expressly provided to be assumed by Buyer hereunder,
Pension Benefit shall pay, fulfill, perform, and discharge when due all duties
and obligations of Pension Benefit relating to the Business which could in any
way give rise to a claim against Buyer or the Purchased Assets.
7.4 Access and Information. From the date hereof until the
Closing Date, Sellers shall cause Pension Benefit to afford to Buyer and its
officers, directors, employees, counsel, accountants, advisors, representatives
and agents (collectively, "Representatives") access, upon reasonable prior
notice, to the officers, employees, agents, properties, Purchased Assets,
offices and other facilities, and to the books, records and Contracts of Buyer
and shall furnish Buyer and such Representatives all relevant financial,
operating and other data and information which Buyer or such Representatives
may from time to time reasonably request.
7.5 Consents and Approvals. Pension Benefit and Sellers agree to
use their best efforts to obtain the waiver, consent and approval of all
Persons whose waiver, consent or approval (i) is required in order to
consummate the transactions contemplated by this Agreement, or (ii) is required
by any Contract or decree, injunction, judgment, order, ruling, writ or award
or administrative decision or award of any federal, state, local, foreign or
other court, arbitrator, mediator, tribunal, administrative agency or
Governmental Authority (collectively, an "Order") to which Pension Benefit or
any of the Sellers are a party or subject on the Closing Date. All written
waivers, consents and approvals obtained by Pension Benefit and Sellers shall
be produced any time prior to or at Closing in form and substance satisfactory
to Buyer.
7.6 Further Assurances. At any time or from time to time after
the Closing, Pension Benefit and Sellers shall execute and deliver any further
instruments or documents and take all such further action as Buyer may
reasonably request in order to (a) vest in Buyer title to and possession of the
Purchased Assets, (b) perfect and record, if necessary, the sale, assignment,
conveyance, transfer, and delivery to Buyer of the Purchased Assets and (c)
otherwise evidence the consummation of the transactions contemplated hereby.
At or after the Closing, Pension Benefit and Sellers shall promptly deliver to
Buyer the original of any mail or other communication received by them after
the Closing Date pertaining to the Business, the Purchased Assets or the
Assumed Liabilities and any moneys, checks or other instruments of payment to
which Buyer is entitled.
7.7 Risk of Loss. Pension Benefit assumes all risk of
condemnation, destruction, loss or damage due to fire or other casualty from
the date of this Agreement until the Closing. If the condemnation,
destruction, loss, or damage is such that the Business is materially
interrupted or curtailed or any of the Purchased Assets are materially
affected, then Buyer shall have the right to terminate this Agreement. If
Buyer nonetheless elects to close the transactions contemplated hereby, Pension
Benefit shall remit all net condemnation proceeds or third party insurance
proceeds to Buyer and the consideration for the Purchased Assets shall be
adjusted to reflect such condemnation, destruction, loss or damage to
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the extent that insurance or condemnation proceeds are not sufficient to cover
such destruction, loss or damage.
7.8 Employment Agreements. At Closing, Buyer shall cause each of
the Sellers to and each of the Sellers agree to duly execute and deliver an
employment agreement (collectively, the "Employment Agreements") substantially
in the forms as annexed hereto as Exhibit C.
ARTICLE VIII
Closing Conditions
8.1 Conditions Precedent to Obligations of Pension Benefit and
Sellers. The obligation of Pension Benefit and Sellers to proceed with the
transactions contemplated hereunder to be consummated at the Closing are
subject, at the option of Pension Benefit and Sellers, to the fulfillment of
each and all of the following conditions at or prior to the Closing Date:
(a) All representations and warranties of Buyer contained
in Article VI hereof shall be true and correct in all material respects on and
as of the Closing Date with the same force and effect as if made on the Closing
Date.
(b) All covenants, agreements and obligations required by
the terms of this Agreement to be performed by Buyer at or before the Closing
Date (including those set forth in Section 4.3 above) shall have been fully
performed when due.
(c) There shall have been delivered to Pension Benefit a
closing certificate from the Buyer confirming that the foregoing conditions
precedent have been properly fulfilled.
(d) Pension Benefit shall have received from Buyer
Financial Statements of Buyer as of a date not more than six (6) months prior
to the Closing Date.
8.2 Conditions Precedent to Obligations of Buyer. The obligation
of Buyer to proceed with the transactions contemplated hereunder to be
consummated at the Closing are subject, at the option of Buyer, to the
fulfillment of each and all of the following conditions at or prior to the
Closing Date:
(a) All representations and warranties of Pension Benefit
and/or Sellers contained in Article V hereof shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as if made on the Closing Date.
(b) All covenants, agreements and obligations required by
the terms of this Agreement to be performed by the Pension Benefit and/or
Sellers at or before the Closing Date (including those set forth in Section 4.2
above) shall have been fully performed when due.
(c) Pension Benefit shall have delivered to Buyer a
closing certificate, dated as of the Closing Date, confirming that the
foregoing conditions precedent have been properly fulfilled.
(d) Buyer shall have received certification from the
State of Alabama that Pension Benefit has paid all taxes in said state.
(e) Buyer shall have negotiated terms of employment with
those employees of Pension Benefit that it desires to retain in the Business.
In that regard, Buyer shall have the right, but not the obligation, to offer
employment to the current employees of Pension Benefit.
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8.3 Best Efforts. Each party agrees that it will utilize its best
efforts to fulfill all of the closing conditions set forth or referenced in
this Article VIII. By way of example, but not limitation, each party agrees
that it will utilize its best efforts to obtain all necessary third party
consents.
ARTICLE IX
Survival of Representations and Warranties/Indemnity
9.1 Survival of Representations and Warranties. All of the
representations and warranties of Pension Benefit, Sellers and Buyer contained
in this Agreement shall survive the Closing.
9.2 Pension Benefit's and the Sellers' Indemnity Agreement.
Pension Benefit and each of the Sellers shall, jointly and severally, defend,
indemnify and hold harmless Buyer and its successors and permitted assigns (and
their respective directors, officers, employees, agents and affiliates) from
and against any and all direct or indirect requests, demands, claims, payments,
defenses, obligations, recoveries, deficiencies, fines, penalties, interest,
assessments, actions, liens, causes of action, suits, proceedings, judgments,
losses, damages, liabilities, costs and expenses of any kind or nature
(including without limitation (i) interest, penalties and reasonable attorneys'
fees and expenses, (ii) attorneys' fees and expenses necessary to enforce their
rights to indemnification hereunder, and (iii) consultants' fees and other
costs of defending or investigating any claim hereunder, whether or not
resulting in any liability), and interest on any amount payable as a result of
the foregoing, whether accrued, absolute, contingent, known, unknown, or
otherwise as of the Closing Date or thereafter asserted against, imposed upon
or incurred by the Purchased Assets or Buyer or its successors or permitted
assigns or any of their respective directors, officers, employees, agents or
affiliates based upon, awarded or asserted against in respect of or otherwise
in respect of:
(a) (i) The operation of Business or the use of the
Purchased Assets at any time on or before the Closing Date unless specifically
assumed by Buyer pursuant to this Agreement, (ii) any negligent, illegal,
unjustified or wrongful act or omission of Pension Benefit, or (iii) any other
liabilities of Pension Benefit that are not specifically assumed by Buyer
pursuant to this Agreement;
(b) Any breach of any representation or warranty or
nonfulfillment of any covenant or agreement on the part of Pension Benefit
and/or Sellers contained in this Agreement, or any misrepresentation in or
omission from or nonfulfillment of any covenant on the part of Pension Benefit
and/or Sellers contained in any other agreement, certificate or other
instrument furnished or to be furnished to Buyer by Pension Benefit and/or
Sellers pursuant to this Agreement;
(c) Any intentional or unintentional failure by Pension
Benefit and/or any of the Sellers to comply with any bulk sales laws applicable
to the transactions contemplated hereby; or
(d) Any failure of Pension Benefit to transfer the
Purchased Assets to Buyer free and clear of all claims, liens and encumbrances
or the failure of Pension Benefit and/or Sellers to obtain, prior to the
Closing Date, all consents, approvals and waivers of lessors, landlords,
suppliers and other third parties as may be necessary to permit the assignment
to Buyer on the Closing Date of Pension Benefit's contracts and agreements and
the consummation of the sale of the Purchased Assets to Buyer; or
(e) Any and all liabilities, obligations and/or losses
incurred or imposed in connection with or based upon any provision of any
federal, state or local law or regulation or common law, including
Environmental Laws pertaining to health, safety or environmental protection and
arising out of any act or omission of Pension Benefit, Pension Benefit's
employees, agents or representatives or Pension Benefit's predecessors in
interest occurring on or prior to the Closing Date, or arising out of the
ownership, use, handling, control or operation of any plant, equipment,
container, facility, site, area or
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property from which any substance was Released into the Environment on or prior
to the Closing Date. The term "Release" means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing into the environment. The term "Environment" means any
surface or ground water, drinking water supply, land, surface or subsurface
strata, or the ambient air. The term "Environmental Laws" shall mean the
Resource, Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act (Super Fund), the Clean Air Act, the
Clean Water Act, the Toxic Substances Control Act and all other United States
Federal and state and local laws and regulations concerning protection of the
Environment and the transportation, storage, treatment or disposal of any
Hazardous Materials. The term "Hazardous Materials" shall mean and include all
hazardous substances, hazardous waste, toxic substances or hazardous materials
or words of similar import under any applicable local, state or federal law or
under the regulations adopted or publications promulgated pursuant thereto,
including, but not limited to, the statutes listed in the definition of
Environmental Laws.
9.3 Buyer's Indemnity Agreement. Buyer shall defend, indemnify
and hold harmless Pension Benefit and/or Sellers and their successors and
permitted assigns (and their respective directors, officers, employees, agents
and affiliates) from and against any and all direct or indirect requests,
demands, claims, payments, defenses, obligations, recoveries, deficiencies,
fines, penalties, interest, assessments, actions, liens, causes of action,
suits, proceedings, judgments, losses, damages, liabilities, costs and expenses
of any kind or nature (including without limitation (i) interest, penalties and
reasonable attorneys' fees and expenses, (ii) attorneys' fees and expenses
necessary to enforce their rights to indemnification hereunder, and (iii)
consultants' fees and other costs of defending or investigating any claim
hereunder, whether or not resulting in any liability), and interest on any
amount payable as a result of the foregoing, whether accrued, absolute,
contingent, known, unknown, or otherwise as of the Closing Date or thereafter
asserted against, imposed upon or incurred by Pension Benefit and/or Sellers or
its successors or permitted assigns or any of their respective directors,
officers, employees, agents or affiliates based upon, awarded or asserted
against in respect of or otherwise in respect of:
(a) Any breach of any representation and warranty or
non-fulfillment of any covenant or agreement on the part of Buyer contained in
this Agreement, or any misrepresentation in or omission from or non-fulfillment
of any covenant on the part of Buyer contained in any other agreement,
certificate or other instrument furnished or to be furnished to Pension Benefit
by Buyer pursuant to this Agreement; or
(b) Buyer's failure to comply, pay, perform or otherwise
comply with any of the Assumed Liabilities specifically and expressly assumed
by Buyer at Closing.
9.4 Conditions of Indemnification. The obligations and
liabilities of the parties under Sections 9.2 and 9.3 with respect to claims
resulting from the assertion of liability by third parties shall be subject to
the following terms and conditions:
(a) The party hereby seeking indemnification (the
"Indemnitee") will give the other party hereto (the "Indemnitor") notice of any
such claims promptly after the Indemnitee receives notice thereof, and the
Indemnitor will accept the defense thereof by counsel of its own choosing
reasonably acceptable to the Indemnitee; provided, however, the failure to give
such notice shall not relive the Indemnitor of its obligations hereunder except
and to the extent he or it is prejudiced thereby.
(b) In the event that the Indemnitor, within a reasonable
time after notice of any such claim, fails to defend against such claim, the
Indemnitee (upon further notice to the Indemnitor) will have the right to
undertake the defense, compromise or settlement of such claim on behalf of and
for the account and risk of the Indemnitor, subject to the right of the
Indemnitor to assume the defense of such claim at any time prior to the
settlement, compromise or final determination thereof;
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(c) Anything in this Section 9.4 to the contrary
notwithstanding, (i) if the Indemnitee shall so elect, the Indemnitee shall
have the right, at its sole cost and expense, to defend, compromise or settle
such claim or to participate in the defense of any claim being defended by the
Indemnitor, (ii) the Indemnitor shall not, without the Indemnitee's written
consent, settle or compromise any claim or consent to entry of any judgment
which does not include an unconditional term thereof giving the Indemnitee a
release from all liability in respect of such claim by the claimant or the
plaintiff, and (iii) the Indemnitor agrees to act in good faith with due regard
to the Indemnitee's on- going business interests to the extent compatible with
an efficient and cost effective resolution of the dispute.
9.5 Payment. The Indemnitor shall promptly pay the Indemnitee any
amount due under this Article IX. Upon judgment, determination, settlement or
compromise of any third party Claim, the Indemnitor shall pay promptly on
behalf of the Indemnitee, and/or to the Indemnitee in reimbursement of any
amount theretofore required to be paid by it, the amount so determined by
judgment, determination, settlement or compromise and all other Claims of the
Indemnitee with respect thereto, unless in the case of a judgment an appeal is
made from the judgment. If the Indemnitor desires to appeal from an adverse
judgment, then the Indemnitor shall post and pay the cost of the security or
bond to stay execution of the judgment pending appeal. Upon the payment in
full by the Indemnitor of such amounts, the Indemnitor shall succeed to the
rights of such Indemnitee, to the extent not waived in settlement, against the
third party who made such third party claim.
9.6 No Waiver. The closing of the transactions contemplated by
this Agreement shall not constitute a waiver by any party of its rights to
Indemnification hereunder, regardless of whether the party seeking
Indemnification had knowledge at any time, whether before or after the
execution and delivery of this Agreement or the Closing Date, of the breach,
violation or failure of condition constituting the basis of any claim.
9.7 Adjustment of Liability. In the event an Indemnitor is
required to make any payment under this Article IX in respect of any damages,
liability, obligation, loss, claim, or other amount indemnified hereunder, such
Indemnitor shall pay the Indemnitee an amount (the "Adjusted Amount") which is
equal to the sum of (i) the amount of such damages, liability, obligation,
loss, claim or other amount, minus (ii) the amount of any insurance proceeds
the Indemnitee actually receives with respect thereto, minus (iii) any third
party payments actually received by the Indemnitee with respect to such
damages, liability, obligation, loss, claim or other amount after demand or
notice to such third party from the Indemnitor (with the consent of the
Indemnitee which will not be unreasonably withheld), plus (iv) the amount of
the Net Tax Liability. "Net Tax Liability" shall be equal to the amount, if
any, by which, the sum of all federal, state, and local taxes, if any, required
to be paid by such Indemnitee in respect of the receipt or accrual of the
Adjusted Amount exceeds the sum of (a) the value of any reduction in taxes of
such Indemnitee by reason of deductions, credits or allowances in respect of
the payment or accrual of the damages, liability, obligation, loss, claim or
other amount included in clause (i) above recognized by such Indemnitee in the
same year in which the taxes in respect of the receipt or accrual by such
Indemnitee of the Adjusted Amount would be payable and (b) the net present
value of any reduction in taxes of such Indemnitee by reason of deductions,
credits or allowances in respect of the payment or accrual of the damages,
liability, obligation, loss, claim or other amount included in clause (i) above
recognized by such Indemnitee in years thereafter. The net present value of
any such reduction in taxes shall be determined by discounting the amount of
such reduction in taxes semi-annually from the date such tax saving is
recognized or reasonably expected to be recognized (which shall be deemed to be
the date the applicable tax return on which such tax saving would be properly
reflected is due, without extensions) to the date of payment of the applicable
indemnity by such Indemnitor, applying a discount factor equal to the interest
rate federal income tax deficiencies in effect at the time of such adjustment.
For purposes of determining the amount of any taxes required to be paid and any
tax savings recognized or reasonably expected to be recognized by such
Indemnitee hereunder, it shall be assumed that such
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Indemnitee is subject to tax in each applicable taxing jurisdiction at the
highest applicable marginal rate then in effect in such jurisdiction.
9.8 Limitation of Liability. In no event shall the liability of
Pension Benefit and the Sellers pursuant to this Article IX exceed the Purchase
Price.
9.9 Non-Exclusive Remedy. The rights and remedies of the parties
hereto pursuant to this Article IX are in addition to and not in lieu of other
rights and remedies available at law or in equity.
ARTICLE X
Termination of Agreement
10.1 Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) By mutual agreement of Buyer and Pension Benefit
and/or Sellers;
(b) By Pension Benefit and/or Sellers, if Pension Benefit
and/or Sellers shall discover that any representation or warranty made by Buyer
herein is false in any material respect or if Buyer shall have breached any of
its agreements and covenants contained herein in any material respect;
(c) By Buyer, if Buyer shall discover that any
representation or warranty made by Pension Benefit and/or any of the Sellers
herein is false in any material respect or if Pension Benefit and/or any of the
Sellers shall have breached any of its agreements and covenants contained
herein in any material respect;
(d) By Pension Benefit and/or Sellers or Buyer, provided
that the terminating party is not in default hereunder, if the Closing shall
not have occurred on or before April 18, 1997.
(e) By Buyer if at any time Buyer shall determine that
the conditions set forth in Section 4.2 and 8.2 hereof cannot be satisfied.
ARTICLE XI
Miscellaneous
11.1 Expenses. Except as otherwise specifically provided herein
the Buyer on the one hand and Pension Benefit and/or Sellers on the other shall
pay their own respective expenses, including the fees and disbursements of
their respective counsel in connection with the negotiation, preparation and
execution of this Agreement and the consummation of the transactions
contemplated hereby. This Section 11.1 shall expressly survive the termination
of this Agreement.
11.2 Entire Agreement. This Agreement, including all schedules and
exhibits hereto, constitutes the entire agreement of the parties with respect
to the subject matter hereof, and may not be modified, amended or terminated
except by a written instrument specifically referring to this Agreement signed
by the party against whom enforcement is sought.
11.3 Waivers and Consents. All waivers and consents given
hereunder shall be in writing. No waiver by any party hereto of any breach or
anticipated breach of any provision hereof by any other party shall be deemed a
waiver of any other contemporaneous, preceding or succeeding breach or
anticipated breach, whether or not similar, on the part of the same or any
other party.
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11.4 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given only if (i) personally
delivered or (ii) three (3) business days after mailing, postage prepaid, by
certified mail or (iii) when delivered (and receipted for) by an overnight
delivery service, addressed in each case as follows:
(a) If to Buyer to:
Benefit Financial Services, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
with a copy in like manner to
Xxxxx, Xxxxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: W. Xxxxxx Xxxx, Esq.
(b) If to Pension Benefit and/or to the Sellers to
Pension & Benefit Financial Services, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: J. Xxxxxxx Xxxxxx
With a copy in like manner to:
Xxxxxx, Xxxxxx, Xxxxx & Xxxxx, P.A.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: D. Xxxx Xxxxxxx, Esq.
Buyer on the one hand, and Pension Benefit and/or Sellers, on the other, may
change the address(es) for the giving of notices and communications to them or
to it, as the case may be, by written notice to the other parties in conformity
with the foregoing.
11.5 Sales and Use Taxes. Pension Benefit shall be responsible for
payment of any sales, use or similar taxes arising on account of the
transactions contemplated herein.
11.6 Bulk Sales. Pension Benefit hereby waives compliance by Buyer
with the provisions of the bulk sales laws of any state.
11.7 Gender. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
11.8 Right to Open Mail. Pension Benefit and Sellers agree and
hereby authorize and empower Buyer from and after the Closing Date (i) to
receive and open mail addressed to Pension Benefit and any of the Sellers; and
(ii) to deal with the contents thereof in any manner as Buyer sees fit,
provided
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that such mail and the contents thereof relate to the business presently
conducted by Pension Benefit and/or the Sellers, or to any of the Purchased
Assets, or to any of the liabilities or obligations assumed by Buyer pursuant to
this Agreement.
11.9 Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the internal
laws of the State of Alabama.
11.10 Arbitration.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement or any contract or agreement entered into pursuant
hereto or the performance by the parties of its or their terms shall be settled
by binding arbitration held in Sylacauga, Alabama in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect, except as specifically otherwise provided in this Section 11.10. The
interpretation and enforceability of this Section 11.10 shall be governed
exclusively by the Federal Arbitration Act, 9 U.S.C. Section Section 1-16.
(b) If the matter in controversy (exclusive of attorney
fees and expenses) shall appear, as at the time of the demand for arbitration,
to exceed $50,000, then the panel to be appointed shall consist of three
neutral arbitrators; otherwise, one neutral arbitrator.
(c) The arbitrator(s) shall allow such discovery as the
arbitrator(s) determine appropriate under the circumstances and shall resolve
the dispute as expeditiously as practicable, and if reasonably practicable,
within 120 days after the selection of the arbitrator(s). The arbitrator(s)
shall give the parties written notice of the decision, with the reasons
therefor set out, and shall have 30 days thereafter to reconsider and modify
such decision if any party so requests within 10 days after the decision.
Thereafter, the decision of the arbitrator(s) shall be final, binding, and
nonappealable with respect to all persons, including (without limitation)
persons who have failed or refused to participate in the arbitration process.
(d) The arbitrator(s) shall have authority to award
relief under legal or equitable principles, including interim or preliminary
relief, and to allocate responsibility for the costs of the arbitration and to
award recovery of attorneys fees and expenses in such manner as is determined
to be appropriate by the arbitrator(s).
(e) Judgment upon the award rendered by the arbitrator(s)
may be entered in any court having in personam and subject matter jurisdiction.
(f) All proceedings under this Section 11.10, and all
evidence given or discovered pursuant hereto, shall be maintained in confidence
by all parties.
(g) The fact that the dispute resolution procedures
specified in this Section 11.10 shall have been or may be invoked shall not
excuse any party from performing its obligations under this Agreement and
during the pendency of any such procedure all parties shall continue to perform
their respective obligations in good faith, subject to any rights to terminate
this Agreement that may be available to any party and to the right of set off
provided herein.
(h) All applicable statutes of limitation shall be tolled
while the procedures specified in this Section 11.10 are pending. The parties
will take such action, if any, required to effectuate such tolling.
11.11 Parties in Interest. Buyer may transfer and assign this
Agreement and its rights hereunder to any affiliate of Buyer without the
consent of Pension Benefit. Except as expressly stated above, this
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Agreement may not be transferred, assigned, pledged or hypothecated by any
party hereto, other than with the written consent of the other parties hereto
and any attempted transfer, assignment, pledge or hypothecation without such
consent shall be null and void and of no effect. Subject to the foregoing
restrictions, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
11.12 Severability. In case any provision in this Agreement shall
be held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
11.13 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date first above written.
"PENSION BENEFIT"
PENSION & BENEFIT FINANCIAL SERVICES, INC.
By: /s/ J. Xxxxxxx Xxxxxx
-------------------------------------
Title: President and Chief Executive
Officer
----------------------------------
"SELLERS"
/s/ Xxxx X. Xxxxxxx (L.S.)
----------------------------------
XXXX X. XXXXXXX
/s/ J. Xxxxxxx Xxxxxx (L.S.)
----------------------------------
J. XXXXXXX XXXXXX
/s/ Xxxx X. Xxxxx (L.S.)
----------------------------------
XXXX X. XXXXX
"BUYER"
BENEFIT FINANCIAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Title: President and Chief Executive
Officer
---------------------------------
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