EXECUTION COPY
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is entered into as of June
17, 2004 by and between CITIZENS INSURANCE COMPANY OF AMERICA, a Colorado
corporation ("Citizens") and MAYFLOWER NATIONAL LIFE INSURANCE COMPANY, an
Indiana corporation ("Mayflower").
WITNESSETH:
WHEREAS, Mayflower owns all of the issued and outstanding capital stock
of Security Plan Life Insurance Company, a Louisiana-domiciled stock life
insurance company ("SPL"); and
WHEREAS, Citizens desires to purchase, and Mayflower desires to sell,
10,000 shares of common stock, $100.00 par value, of SPL (the "Shares"), which
constitutes all of the issued and outstanding shares of capital stock of SPL.
NOW, THEREFORE, it is agreed between the parties as follows:
ARTICLE I
PURCHASE AND SALE
Subject to the terms and conditions set forth in this Agreement,
Mayflower agrees to sell, and Citizens agrees to purchase, all of the Shares as
follows:
1.1 The transactions contemplated by this Agreement shall be
completed at a closing ("Closing") on a closing date ("Closing Date") to occur
on the first business day of the month following the date on which all
conditions set forth in Article VI of this Agreement have been satisfied
(subject to the limitations set forth in Article VI) or waived in writing, or
such earlier date after the satisfaction of such conditions as Mayflower may
determine. The Closing will be effective as of 12:01 a.m. (Central time) on the
Closing Date.
1.2 Citizens will pay to Mayflower at Closing $85,000,000
(Eighty-Five Million Dollars) (the "Purchase Price") by delivery of cash in the
amount of $85,000,000 payable by wire transfer or delivery of other immediately
available funds.
1.3 At Closing, (i) Mayflower will deliver to Citizens the
various certificates, instruments, and documents referred to in Section 6.1(f),
(ii) Citizens will deliver to Mayflower the various certificates, instruments,
and documents referred to in Section 6.2, (iii) Mayflower will deliver to
Citizens stock certificates representing the Shares, endorsed in blank or
accompanied by duly executed assignment documents free and clear of all security
interests, liens, charges, encumbrances, restrictions or rights of any third
parties of any kind or nature, and (iv) Citizens will deliver to Mayflower the
consideration specified in Section 1.2.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CITIZENS
No representations or warranties are made by any director, officer,
employee or shareholder of Citizens as individuals. Citizens hereby represents
and warrants to Mayflower as follows:
2.1 Citizens is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado, having the corporate
power and authority to own or lease its properties and to carry on its business
as it is now being conducted. The Articles of Incorporation and Bylaws of
Citizens, copies of which have been delivered to Mayflower, are complete and
accurate, and the minute books of Citizens contain a record, which is complete
and accurate in all material respects, of all meetings, and all corporate
actions of the shareholders and Board of Directors of Citizens.
2.2 Citizens has complete and unrestricted power to enter into and,
upon the appropriate approvals as required by law, to consummate the
transactions contemplated by this Agreement. Neither Citizens, nor its
subsidiaries have any liability or obligation to pay any fee or commission to
any broker, agent or finder other than Search Information Services, Inc. (whose
fees, commissions and/or expenses shall be paid by Citizens) with respect to the
transactions contemplated hereby.
2.3 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by Citizens will conflict with or result in a breach or violation of its
Articles of Incorporation or Bylaws.
2.4 The execution, delivery and performance of this Agreement has been
duly authorized and approved by the Board of Directors of Citizens.
2.5 Citizens has delivered to Mayflower statutory financial statements
of Citizens, dated December 31, 2003 and March 31, 2004. All such statements,
herein sometimes called "Citizens Financial Statements," are complete and
correct in all material respects and, together with the notes to these financial
statements, present fairly the financial position and results of operations of
Citizens for the periods included. The December 31, 2003 and March 31, 2004
Citizens Financial Statements have been prepared in accordance with statutory
accounting principles.
2.6 Since the dates of the Citizens Financial Statements there have not
been any material adverse changes in the business or condition, financial or
otherwise, of Citizens and its subsidiaries.
2.7 Citizens (i) understands that the Shares have not been, and will
not be, registered under any federal or state securities laws, and are being
offered and sold to Citizens in reliance upon federal and state exemptions for
transactions not involving any public offering, (ii) is
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acquiring the Shares solely for its own account for investment purposes, and not
with a view to public distribution thereof, (iii) is a sophisticated investor
with knowledge and experience in business and financial matters, (iv) is able to
bear the economic risk and lack of liquidity inherent in holding the Shares, (v)
is an "accredited investor" as that term is defined for purposes of Regulation D
promulgated under the Securities Act of 1933, as amended and (vi) acknowledges
that, in connection with the purchase of the Shares, it has not relied upon any
representation or warranty made by Mayflower or any of its directors, officers,
employees, shareholders or Affiliates (as such term is defined in Section 4.6),
except those representations and warranties contained in this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MAYFLOWER
No representations or warranties are made by any director, officer,
employee or shareholder of Mayflower as individuals. Mayflower hereby represents
and warrants to Citizens as follows:
3.1 Mayflower is an Indiana insurance company duly organized and
validly existing under the laws of the State of Indiana. SPL is a stock life
insurance company duly organized, validly existing and in good standing under
the laws of the State of Louisiana. Each of Mayflower and SPL has the corporate
power and authority to own or lease its properties and to carry on its business
as it is now being conducted. The Articles of Incorporation and Bylaws of SPL
currently in effect, copies of which have been delivered to Citizens, are
complete and accurate, and the minute books of SPL contain a record, which is
complete and accurate in all material respects, of all meetings, and all
corporate actions of the shareholders and Board of Directors of SPL. Copies of
all minutes of all meetings of the Boards of Directors of SPL, Security Fire and
Security Agency since 1996 have been made available to Citizens.
3.2 The aggregate number of shares which SPL is authorized to issue is
10,000 shares of common stock, $100.00 par value, of which 10,000 are issued and
outstanding, fully paid, non-assessable. All issued and outstanding shares of
SPL are owned of record and held by Mayflower and are not subject to any
security interests, liens, charges, encumbrances, restrictions or rights of any
third parties of any kind or nature. There are no outstanding options, warrants
or other rights to purchase or subscribe to, or securities convertible into or
exchangeable for any shares of the capital stock of SPL. SPL has two wholly
owned subsidiaries, Security Plan Fire Insurance Company ("Security Fire"), a
Louisiana-domiciled property and casualty insurer and Security Plan Agency, Inc.
("Security Agency") a Louisiana corporation. The aggregate number of shares,
which Security Fire is authorized to issue, is 10,000 shares of common stock,
$100.00 par value, of which 10,000 shares are issued and outstanding, fully
paid, non-assessable. All issued and outstanding shares of Security Fire are
owned of record and held by SPL and are not subject to any security interests,
liens, charges, encumbrances, restrictions or rights of any third parties of any
kind or nature. There are no outstanding options, warrants or other rights to
purchase or subscribe to, or securities convertible into or exchangeable for any
shares of capital stock of Security Fire. The aggregate number of shares, which
Security Agency is authorized to issue, is 200 shares of common stock $100.00
par value, of which 10 shares are issued and
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outstanding, fully paid, non-assessable. All issued and outstanding shares of
Security Agency are owned of record and held by SPL and are not subject to any
security interests, liens, charges, encumbrances, restrictions or rights of any
third parties of any kind or nature. There are no outstanding options, warrants
or other rights to purchase or subscribe to, or securities convertible into or
exchangeable for any shares of the capital stock of Security Agency. Security
Agency has no material assets or any liabilities greater than $5,000.
3.3 Mayflower has complete and unrestricted power to enter into and,
upon the appropriate approvals as required by law, to consummate the
transactions contemplated by this Agreement. Except as set forth in Section 3.3
of the Mayflower Disclosure Schedule, neither Mayflower, nor its subsidiaries
have any liability or obligation to pay any fee or commission to any broker,
agent or finder with respect to the transactions contemplated hereby, other than
the fees and expenses of Xxxxxxx, Xxxxxxx & Co., LLC, which fees and expenses
shall be paid by Mayflower.
3.4 Neither the making of nor the compliance with the terms and
provisions of this Agreement and consummation of the transactions contemplated
herein by Mayflower will conflict with or result in a breach or violation of any
Articles of Incorporation, Bylaws or any agreement of Mayflower, SPL, Security
Fire or Security Agency.
3.5 This Agreement has been duly authorized, executed and delivered by
Mayflower, constitutes a legal, valid and binding obligation of Mayflower and is
enforceable against Mayflower in accordance with its terms, except to the extent
that (a) enforcement against Mayflower may be limited by or subject to any
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws now or hereafter in effect relating to or limiting creditors'
rights generally or (b) the remedy of specific performance and injunctive and
other forms of equitable relief are subject to certain equitable defenses and to
the discretion of the court or other similar person or entity before which any
proceeding therefor may be brought.
3.6 Mayflower has delivered to Citizens the annual and quarterly
convention statements of SPL and Security Fire as of December 31, 2003 and the
three months ended March 31, 2004, as filed with the Louisiana Department of
Insurance. All such statements, herein sometimes called "SPL convention
statements," (i) were prepared in accordance with statutory accounting practices
("SAP") and (ii) present fairly in all material respects in accordance with SAP,
the financial position of SPL or Security Fire as appropriate, as of the dates
thereof and the related results of operations and changes in capital and surplus
and cash flows of SPL or Security Fire for and during the periods covered
thereby. No deficiency has been asserted by any insurance regulatory authority
with respect to such statements, except as set forth in Section 3.6 of the
Mayflower Disclosure Schedule.
3.7 Except as set forth in Section 3.7 of the Mayflower Disclosure
Schedule, since the dates of the SPL convention statements, there have not been
any material adverse changes in the business or condition, financial or
otherwise, of SPL or Security Fire. Except as set forth in Section 3.7 of the
Mayflower Disclosure Schedule, SPL and Security Fire have no material
liabilities or obligations, secured or unsecured (whether accrued, absolute,
contingent or otherwise) which are required by SAP to be disclosed in the SPL
convention statements and are not so disclosed, except for contractual
liabilities pursuant to policies of insurance issued or
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assumed by SPL or Security Fire, and except for liabilities incurred in the
ordinary course of business.
3.8 Section 3.8 of the Mayflower Disclosure Schedule sets forth a
description of all pending legal proceedings involving SPL and Security Fire, in
which SPL or Security Fire, as the case may be, can reasonably be expected to be
obligated to incur expenses, including legal fees, of $10,000 or more, and,
except for these proceedings, there are no legal proceedings or regulatory
proceedings involving, or to the knowledge of the officers of Mayflower, after
due inquiry, threatened against SPL or Security Fire or affecting any of their
respective assets or properties with respect to which SPL or Security Fire, as
the case may be, can reasonably be expected to be obligated to incur expenses,
including legal fees, of $10,000 or more. Except as would not reasonably be
expected to have a material adverse effect on SPL or Security Fire, (a) SPL and
Security Fire are not in breach, violation or default under any contract or
instrument to which they are a party, and no event has occurred which with the
lapse of time or action by a third party could result in a breach, violation or
default by SPL or Security Fire under any contract or other instrument to which
SPL or Security Fire is a party or by which they or any of their properties may
be bound or affected, (b) neither SPL or Security Fire are in violation of any
provision of their Articles of Incorporation or Bylaws, and (c) there is no
pending court or regulatory order applicable to SPL or Security Fire.
3.9 The assets of SPL and Security Fire have admissible values as at
December 31, 2003 and March 31, 2004, under applicable Louisiana law, at least
equal to the aggregate admitted value attributed to such assets on the December
31, 2003 and March 31, 2004 SPL convention statements, respectively.
3.10 Except as set forth in Section 3.10 of the Mayflower Disclosure
Schedule, neither SPL nor Security Fire is a party to any sales, agency, lease,
rental, license, royalty, union or other material contract or agreement, written
or otherwise, involving annual payment obligations of SPL or Security Fire in
excess of $50,000.00 other than insurance policies issued or assumed by SPL or
Security.
3.11 All statutory reserves and other similar amounts with respect to
losses, benefits, claims and expenses in respect of SPL's insurance businesses
as established or reflected in the December 31, 2003 SPL convention statements
(the "Reserves") were determined in accordance with SAP.
3.12 Mayflower has delivered to Citizens a copy of each of the federal
income tax returns of SPL and Security Fire for the years ended December 31,
2000, 2001 and 2002. All accrued and unpaid federal, state, county and local
taxes of SPL and Security Fire (including any penalties or interest payable)
whether or not disputed for the periods then ended and for all prior fiscal
periods shall have been included in the provision for taxes reflected in the
March 31, 2004 SPL convention statement. All material returns and reports or
other information thereof of SPL and Security Fire required or requested by
federal, state, county, and local tax authorities have been filed or supplied,
and all such information is true and correct in all material respects.
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3.13 Except as set forth in Section 3.13 of the Mayflower Disclosure
Schedule, neither SPL nor Security Fire have employee benefit plans. To the
knowledge of Mayflower, none of such employee benefits plans are not in
compliance with the requirements of the Employee Retirement Income Security Act
of 1974.
3.14 Except as set forth in Section 3.14 of the Mayflower Disclosure
Schedule, since March 31, 2004, each of SPL and Security Fire has continued
actively in the conduct of its respective business, meeting and performing all
of its obligations in all material respects in the ordinary course of its
business, and (i) there has been no material adverse change in the assets or
liabilities or in the condition, business, financial or otherwise, of SPL and
Security Fire; (ii) each of SPL and Security Fire has not transferred, conveyed,
or acquired any material assets or property or entered into any transaction
which by reason of its size or otherwise is not in the ordinary course of its
business; (iii) each of SPL and Security Fire has not paid to any employee any
compensation that is not in the ordinary course of business; (iv) each of SPL
and Security Fire has not declared or paid any dividend or authorized or made
any other distribution of any kind to its shareholders, or issued or sold, or
issued rights or options to purchase or subscribe to, or subdivided or otherwise
changed, or agreed to repurchase or redeem, any shares of its capital stock
(except for dividends paid or payable to Mayflower through March 31, 2004 and
included in the SPL Financial Statements); and (v) each of SPL and Security Fire
has not made or agreed to make any changes with respect to its capital stock as
regards dividends, redemption, voting powers or restriction or qualifications of
voting powers as presently exist in its Articles of Incorporation.
3.15 Each of SPL and Security Fire is not in default in the payment of
any of its obligations. Other than those normal liabilities incurred by SPL and
Security Fire since December 31, 2003 in the ordinary course of business, there
are no material liabilities, whether such liabilities are contingent, absolute,
direct, or indirect, matured, unmatured or otherwise, and including, but not
limited to, liabilities for federal, state or local taxes, penalties and
assessments, which do not appear on the aforesaid financial statements of SPL or
Security Fire as of December 31, 2003 and March 31, 2004.
3.16 Except as set forth in Section 3.16 of the Mayflower Disclosure
Schedule, each of SPL and Security Fire has no outstanding mortgages, letters of
credit, corporate bonds, debentures, trust or premium certificates or other
income, surplus, debt or capital obligations of a similar nature.
3.17 Except as set forth in Section 3.17 of the Mayflower Disclosure
Schedule, each of SPL and Security Fire has now, and at Closing will have, good
and indefeasible title to all of its properties and assets, including the
property and assets set forth in the balance sheet of SPL and Security Fire as
of March 31, 2004, and in each case, other than deposits held in joint custody
with insurance regulatory authorities, such assets and properties are free and
clear of all mortgages, pledges, liens, leases, restrictions, security
interests, encumbrances or charges whatsoever, and of every kind and nature.
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3.18 SPL and Security Fire have not issued and do not have in force any
insurance or annuity contracts which provide for mandatory dividends or
participation or sharing in the profits, earnings, accumulations or expense
savings of SPL or Security Fire.
3.19 No representation or warranty by Mayflower in this Agreement, the
Mayflower Disclosure Statement or any certificate delivered pursuant hereto
contains any untrue statement of a material fact or omits to state any material
fact necessary to make such representation or warranty not misleading.
3.20 SPL has begun the process of implementing the requirements of
Section 404 of the Xxxxxxxx-Xxxxx Act of 2002.
3.21 All amounts to be paid under the 2004 Incentive Plan of SPL shall
have been accrued and paid by SPL prior to Closing.
ARTICLE IV
OBLIGATIONS OF THE PARTIES PENDING THE CLOSING
4.1 At all times prior to the Closing, during regular business hours
and upon prior arrangement of such meetings, each party will permit the other to
meet with staff members, examine its books and records and the books and records
of any subsidiaries and will furnish copies thereof on request. It is recognized
that, during the performance of this Agreement, each party may provide the other
parties with information which is confidential or proprietary information.
During the term of this Agreement, and for four years following the termination
of this Agreement, the recipient of such information shall protect such
information from disclosure to persons, other than members of its own or
affiliated organizations and its professional advisers, in the same manner, as
it protects its own confidential or proprietary information from unauthorized
disclosure, and not use or disclose such information to the competitive
detriment of the disclosing party. No information shall be considered
confidential or proprietary if it is (a) information already in the possession
of the party to whom disclosure is made; (b) information acquired by the party
to whom the disclosure is made from other sources; or (c) information in the
public domain or generally available to interested persons or which at a later
date passes into the public domain or becomes available to the party to whom
disclosure is made without any wrongdoing by the party to whom the disclosure is
made. In the event one party is requested or required (by oral question or
request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any such
information, the other party will be promptly notified of the request or
requirement so that the other party may seek an appropriate protective order or
waive in writing compliance with the provisions of this Section 4.1. If one
party is, on the advice of counsel, compelled to disclose any such information
to any tribunal or else stand liable for contempt, it may disclose such
information to the tribunal; provided, however, that the disclosing party shall
use its reasonable best efforts to obtain, at the request of the nondisclosing
party, an order or other assurance that confidential treatment will be accorded
to such portion of the information required to be disclosed as the nondisclosing
party shall designate.
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4.2 Prior to Closing, Mayflower and Citizens shall promptly provide
each other with information as to any significant developments in the
performance of this Agreement, and shall promptly notify the other if it
discovers that any of the representations, warranties and covenants contained in
this Agreement or in any document delivered in connection with this Agreement
was not true and correct in all material respects or became untrue or incorrect
in all material respect. Mayflower will deliver to Citizens on or before the
Closing Date any reports relating to the financial and business condition of SPL
and Security Fire which are filed with any governmental authority after the date
of this Agreement and prior to Closing.
4.3 Each party to this Agreement shall take all such action as may be
reasonably necessary and appropriate and shall use its best efforts in order to
consummate the transactions contemplated hereby as promptly as practicable,
including completion of all regulatory filings that may be required. Citizens
agrees to file and to use its best efforts to obtain such approvals or consents
from the Regulatory Authorities (as defined in Article V below) required for the
transactions contemplated by this Agreement. Neither Citizens nor Mayflower
shall be obligated to file a suit or to appeal from any adverse ruling of a
regulatory authority, nor shall Citizens or Mayflower be obligated to make any
material changes in any lawful, good faith management policy in order to gain
such approval.
4.4 Subject to the provisions of Article VIII, in connection with the
filing of any tax returns and any audit, litigation or other proceeding with
respect to any taxes of SPL, Security Fire or Security Agency for any tax period
ending prior to or on the Closing Date or beginning prior to Closing and ending
after the Closing Date, Citizens and Mayflower shall, at their own cost,
cooperate fully and to the extent reasonably requested by the other party. Such
cooperation shall include the retention and (upon the other party's request) the
provision of records and information that are reasonably relevant to any such
tax return, audit, litigation or other proceeding. Each party shall use
reasonable best efforts in making employees available on a mutually convenient
basis to provide additional information and explanation of any material provided
hereunder. Mayflower and Citizens shall, and shall cause their respective
Affiliates (as such term is defined in Section 4.6) and successors to, and
Citizens shall cause SPL and Security Fire to, (i) retain and maintain all tax
records for the full period of the applicable statute of limitations, including
any extension thereof and (ii) allow Mayflower and Citizens and their respective
agents and representatives (and agents or representatives of any of their
respective Affiliates), to inspect, review and make copies of such records as is
reasonably necessary or appropriate from time to time.
4.5 Other than as required by this Agreement, Mayflower agrees that SPL
and Security Fire will not, without the prior written consent of Citizens (which
consent shall not be unreasonably withheld), between the date hereof and
Closing:
(a) issue or sell, or agree to issue or sell, any stock, bonds
or other corporate securities, or declare or pay any dividends on capital stock,
or make any other payments or distributions to its stockholders, except for the
payment of dividends to stockholders already declared and disclosed herein;
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(b) incur any obligation or liability, absolute, contingent,
direct or indirect, other than liabilities or obligations incurred in the
ordinary course of its business;
(c) incur any indebtedness for borrowed money; make any loans
or advances to any individual, firm or corporation other than commission
advances to sales agents and others in the ordinary course of business, or
assume, guarantee, endorse or otherwise become responsible for the obligations
of any other individual, firm or corporation;
(d) except as set forth in Section 4.5(d) of the Mayflower
Disclosure Schedule, discharge or satisfy any lien or encumbrance or pay any
obligation or liability other than current liabilities shown on the SPL
convention statement as of December 31, 2003, or those incurred thereafter;
(e) mortgage, pledge, or subject to lien or security interest,
charge or otherwise encumber any of its assets or properties;
(f) sell or transfer any of its properties or assets, or
cancel, release or assign any indebtedness owed to it or any claims held by it,
except in the ordinary course of business and for a consideration equal to the
fair value thereof;
(g) other than in the ordinary course of business, and except
as set forth in Section 4.5(g) of the Mayflower Disclosure Schedule, pay any
bonuses or special remuneration to any officer or employee, increase the
salaries or other remuneration of any officer or employee, enter into any
written contract of employment, management or consultation, or enter into any
contract or adopt or amend any plan providing for such bonuses or for stock
options or warrants, pensions, retirement benefits, profit sharing or the like;
(h) sell or transfer any of its real properties other than
those properties set forth in Section 4.5(h) of the Mayflower Disclosure
Schedule;
(i) except as set forth in Section 4.5(i) of the Mayflower
Disclosure Schedule, make any material capital expenditures for property, plant
or equipment;
(j) enter into any long-term contracts or commitments, except
in the ordinary course of business;
(k) use any of its assets or properties except for proper
corporate purposes;
(l) modify, amend, cancel or terminate any existing agreement
except in the ordinary course of its business or in accordance with the terms of
any such agreement;
(m) enter into any transaction or agreement (involving a value
in excess of $50,000.00) that would adversely affect the financial condition of
SPL or Security Fire other than in the ordinary course of its business and other
than as set forth on Section 4.5(m) of the Mayflower Disclosure Schedule;
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(n) issue any outstanding contracts, agreements, options,
warrants, calls or commitments relating to its authorized, unissued stock;
(o) except as set forth in Section 4.5(o) of the Mayflower
Disclosure Schedule, incur any material liabilities, whether such liabilities
are contingent, absolute, direct or indirect, matured, unmatured or otherwise,
which do not appear on the SPL convention statement as of March 31, 2004, except
those incurred after March 31, 2004, in the ordinary course of its business,
none of which would be reasonably expected to have a material adverse effect
upon SPL; or
(p) issue or grant any outstanding corporate bonds,
debentures, trust or premium certificates or other income, surplus or capital
obligations of a similar nature, except as specified herein.
4.6 From the date hereof through and until the earlier of termination
of this Agreement pursuant to Article VII or Closing, neither Mayflower nor any
of its Affiliates, employees, directors, officers, shareholders, agents or
advisors shall, directly or indirectly, without the prior written consent of
Citizens, (a) enter into a Transaction, (b) publicly disclose the intention to
enter into a Transaction or (c) solicit, initiate or encourage any inquiries,
proposals or offers from any person or entity relating to any Transaction. For
purposes of this Agreement, the term "Transaction" shall mean the sale, pledge
or disposition of the Shares or any other transaction which would have the same
effect, or any other arrangement that would transfer, in whole or in part, any
of the economic consequences of ownership of the Shares, regardless of whether
any such aforementioned transaction is to be settled by delivery of the Shares.
For the purposes of this Agreement, the term "Affiliate" shall mean, with
respect to a specified person or entity, any person or entity that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with such specified person or entity.
4.7 If the Closing Date is on or prior to December 31, 2004, SPL shall
terminate the 2004 Incentive Plan (the "Plan") of SPL as of the Closing Date,
and SPL shall pay the pro rata portion (as of the Closing Date) of any bonuses
pursuant to the provisions of the Plan.
4.8 Within ten (10) days after the date of this Agreement, Mayflower
shall cause SPL to engage certified public accountants to audit the consolidated
US GAAP statements of SPL for the years 2002 and 2003.
4.9 Mayflower shall use commercially reasonable efforts to cause
Alderwoods (Louisiana), Inc. to pay off and satisfy in full that certain
Promissory Note, dated March 26, 1996, from Alderwoods (Louisiana), Inc.'s
predecessor in favor of SPL (the "Promissory Note") prior to Closing, and in any
event, Mayflower shall cause Alderwoods (Louisiana), Inc. to pay off and satisfy
in full such Promissory Note no later than December 31, 2004; PROVIDED, HOWEVER,
that SPL or Citizens, as the case may be, shall release and discharge any and
all liens or other security interests in the collateral securing the Promissory
Note at the time of such payment. At all times prior to the payment in full and
satisfaction of the Promissory Note, Mayflower shall cause Alderwoods
(Louisiana), Inc. to make all payments when due and payable in accordance
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with the terms of the Promissory Note and otherwise fulfill all of its
obligations under the Promissory Note.
ARTICLE V
REGULATORY FILINGS
Within 20 business days after the execution of this Agreement, Citizens
shall file with the Insurance Commissioner of the State of Louisiana and the
Insurance Commissioner of the State of Colorado (together, the "Regulatory
Authorities") all of the regulatory approval documents required by Louisiana and
Colorado law in order to consummate the transactions contemplated by this
Agreement, as well as any other regulatory filing required to consummate the
transactions contemplated hereby, including any filings under the Xxxx,
Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act").
ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS PRECEDENT TO CITIZENS' OBLIGATIONS. The obligation of
Citizens to consummate the transactions contemplated by this Agreement is
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, except to the extent that Citizens waives in writing any of the
following conditions and except to the extent that failure of any such condition
is caused by the intentional, willful, reckless or grossly negligent act or
omission of Citizens or any Affiliate of Citizens:
(a) The parties shall have obtained all necessary approvals or consents
for the transactions contemplated by this Agreement from each of the Regulatory
Authorities and any other applicable governmental authority (collectively, the
"Applicable Regulatory Authorities");
(b) Any waiting period applicable to the consummation of the
transactions contemplated by this Agreement under the HSR Act shall have expired
or been terminated;
(c) Mayflower shall have performed and complied with all of its
respective obligations hereunder which are to be complied with or performed on
or before the Closing Date pursuant to the terms of this Agreement;
(d) There shall not be pending or in effect on the Closing Date any
litigation, action, suit, investigation, claim or proceeding before any court of
competent jurisdiction or any governmental authority having jurisdiction over
the transactions contemplated by this Agreement, or any writ, judgment,
injunction, decree or similar order of any court or governmental authority
restraining, enjoining or otherwise preventing consummation of any of the
transactions contemplated by this Agreement;
(e) The representations and warranties made by Mayflower in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the
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Closing, except to the extent that such representations and warranties may be
untrue on and as of the Closing because of (1) changes caused by transactions
suggested or approved in writing by Citizens, or (2) events or changes (which
shall not, in the aggregate, have materially and adversely affected the
business, assets, or financial condition of SPL) during or arising after the
date of this Agreement;
(f) Mayflower shall have supplied Citizens with:
(i) a certified copy of a resolution or resolutions
duly adopted by the Board of Directors of Mayflower approving this
Agreement and the transactions contemplated by it in accordance with
applicable law;
(ii) a certified copy of a resolution or resolutions
duly adopted by the shareholders of Mayflower approving this Agreement
and the transactions contemplated by it in accordance with applicable
law;
(iii) a certificate of Mayflower dated the Closing
Date to the effect that each of the conditions specified in this
Section 6.1 have been satisfied in all respects;
(iv) an opinion of counsel to Mayflower dated as of
the Closing Date addressing the matters set forth in Exhibit B attached
hereto and subject to customary assumptions and qualifications; and
(v) an opinion of in-house counsel to Mayflower dated
as of the Closing Date stating that to such counsel's knowledge there
are no legal proceedings that would be required to be disclosed
pursuant to Section 3.8 of this Agreement that have not been disclosed
to Citizens.
(g) Citizens shall have received approval from the Colorado Division of
Insurance to issue a Surplus Debenture to Citizens, Inc., its parent, in an
amount up to $30 million, in conjunction with the transactions contemplated by
this Agreement.
6.2 CONDITIONS PRECEDENT TO MAYFLOWER'S OBLIGATIONS. The obligation of
Mayflower to consummate the transactions contemplated by this Agreement is
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, except to the extent that Mayflower waives in writing any of the
following conditions and except to the extent that failure of any such condition
is caused by the intentional, willful, reckless or grossly negligent act or
omission of Mayflower or any Affiliate of Mayflower:
(a) The parties shall have obtained all necessary approvals or consents
for the transactions contemplated by this Agreement from the Applicable
Regulatory Authorities;
(b) Any waiting period applicable to the consummation of the
transactions contemplated by this Agreement under the HSR Act shall have expired
or been terminated;
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(c) Citizens shall have performed and complied with all of its
respective obligations hereunder which are to be complied with or performed on
or before the Closing Date pursuant to the terms of this Agreement;
(d) There shall not be pending or in effect on the Closing Date any
litigation, action, suit, investigation, claim or proceeding before any court of
competent jurisdiction or any governmental authority having jurisdiction over
the transactions contemplated by this Agreement, or any writ, judgment,
injunction, decree or similar order of any court or governmental authority
restraining, enjoining or otherwise preventing consummation of any of the
transactions contemplated by this Agreement;
(e) The representations and warranties made by Citizens in this
Agreement shall be true as though such representations and warranties had been
made or given on and as of the Closing, except to the extent that such
representations and warranties may be untrue on and as of the Closing because of
(1) changes caused by transactions suggested or approved in writing by
Mayflower, or (2) events or changes (which shall not, in the aggregate, have
materially and adversely affected the business, assets, or financial condition
of SPL) during or arising after the date of this Agreement;
(f) Citizens shall have furnished Mayflower with a certificate of
Citizens dated the Closing Date to the effect that each of the conditions
specified above in this Section 6.2 have been satisfied in all respects; and
(g) Except as otherwise described in Section 6.2(g) of the Mayflower
Disclosure Schedule, all intercompany accounts listed in Section 6.2(g) of the
Mayflower Disclosure Schedule shall have been terminated or settled.
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1 Anything contained in this Agreement to the contrary
notwithstanding, the Agreement may be terminated and abandoned at any time prior
to the Closing Date:
(a) By mutual consent of Citizens and Mayflower;
(b) By Citizens or Mayflower if the Closing has not occurred on or
prior to November 1, 2004, PROVIDED that the non-occurrence of the
Closing was not caused by any breach of this Agreement by the party
seeking termination;
(c) By Citizens or Mayflower, if there is discovered any material
error, misstatement or omission in the representations and warranties
of the other party; PROVIDED that the party seeking termination
pursuant to this Section 7.1(c) shall have provided the other party
with written notice of such error, misstatement or omission and such
other party shall have failed to cure such error, misstatement or
omission with thirty (30) days after receiving such notice and PROVIDED
FURTHER that the party seeking termination pursuant to
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this Section 7.1(c) is not in material breach of any provision
contained in this Agreement; or
(d) By Citizens or Mayflower in the event any Regulatory Authority
denies any approval or consent requested for the transactions
contemplated by this Agreement (including any appeal of such denial)
and the failure to obtain such approval or consent would have a
material adverse effect on the business and operations of SPL upon
Closing.
7.2 Any of the terms or conditions of this Agreement may be waived in
writing at any time by the party entitled to the benefit thereof.
ARTICLE VIII
INDEMNIFICATION
8.1 The representations and warranties of the parties contained in this
Agreement shall survive the Closing hereunder and continue in full force and
effect for a period of one (1) year thereafter.
8.2 After the Closing, the parties shall indemnify each other as
follows:
(a) In the event any party ("Indemnifying Party") breaches (or
in the event any third party alleges facts that, if true, would mean such party
has breached) any of its representations, warranties or covenants contained
herein, and another party ("Indemnified Party") makes a written claim for
indemnification pursuant to this Section 8.2 within the applicable survival
period specified in Section 8.1, then the Indemnifying Party agrees to indemnify
the Indemnified Party) from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable legal expenses) the Indemnified
Party may suffer through and after the date of the claim for indemnification
(including any adverse consequences suffered after the end of any applicable
survival period) resulting from, arising out of, or relating to such breach
(collectively "Losses").
(b) If any third party shall notify any party (such party also
being referred to as an "Indemnified Party") with respect to a matter ("Third
Party Claim") which may give rise to a claim for indemnification against another
party (such party also being referred to as an "Indemnifying Party") under this
Section 8.2, then the Indemnified Party shall promptly notify the Indemnifying
Party thereof in writing; PROVIDED, HOWEVER, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and then solely to the
extent) the Indemnifying Party thereby is prejudiced in a material manner.
(c) Notwithstanding the foregoing provisions of this Section
8.2 and other than as set forth in Section 8.3 (to which the Deductible as
defined below will not apply), Mayflower shall have no liability for any Losses
under this Agreement or the transactions contemplated hereby unless and until
the cumulative amount of such Losses exceeds in the
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aggregate $500,000 (the "Deductible"), in which case recovery for such Losses
will be permitted for the aggregate amount of all such Losses. Any Losses less
than $5,000 shall not be taken into account in determining whether all Losses
exceed the Deductible PROVIDED that individual Losses of less than $5,000 may be
aggregated for the purposes of determining whether all Losses exceed the
Deductible if such individual Losses arise out of the same occurrence, event or
circumstance. Recovery for Losses and/or Obligations (as defined in Section
8.3), incurred by Citizens shall be limited to, and shall not exceed, in the
aggregate $25,000,000.
8.3 (a) Mayflower shall be liable for and shall indemnify and keep
indemnified Citizens (for itself and its Affiliates) against all costs, charges,
expenses, claims, liabilities and obligations including but not limited to the
attorneys fees' and costs suffered or incurred by Citizens and its Affiliates
within three (3) years after the Closing Date ("Obligations") in excess of
$100,000.00 arising out of or in connection with that certain Class-Action
styled Xxxxxx X. Xxxx et al vs. Security Plan Life Insurance Company, Case No.
68938 filed in the 23rd Judicial District Court, Ascension Parish, Louisiana and
arising out of or in connection with that certain Agreement of Class-Action
Settlement with SPL and related entities by and between Plaintiff Xxxxxx X. Xxxx
and class members in the Settlement Class-Action litigation, and arising out of
or in connection with that certain Consent Agreement dated August 7, 2001 by and
between SPL and the Louisiana Department of Insurance in connection with Xxxxxx
X. Xxxx, et al vs. Security Plan Life Insurance Company (collectively, the "Hall
Matter"); PROVIDED that Citizens promptly submits written notice of any such
Obligations to Mayflower as incurred and in no event later than 90 days after
the third anniversary of the Closing Date. Each party shall keep the other party
informed and apprised as to the status of the Hall Matter.
(b) Mayflower shall be liable for and shall indemnify and keep
indemnified Citizens (for itself and its Affiliates) against all Obligations
arising out of or in connection with each case listed in Section 8.3(b) of the
Mayflower Disclosure Schedule to the extent such Obligations exceed $25,000 with
respect to any such individual case; PROVIDED that Citizens promptly submits
written notice of any such Obligations to Mayflower as incurred and in no event
later than 90 days after the third anniversary of the Closing Date. Each party
shall keep the other party informed and apprised as to the status of the each
such case.
(c) From and after the Closing, Citizens' right to
indemnification with respect to any Obligations pursuant to Sections 8.3(a)
and/or 8.3(b) shall be its sole and exclusive remedy for damages under or with
respect to such Sections, and Citizens and its Affiliates shall not be entitled
to pursue, and hereby expressly waive, any and all rights that may otherwise be
available either at law or in equity with respect thereto (except the right to
obtain equitable or injunctive relief as expressly set forth in Section 9.10).
8.4 PROCEDURE. In the event that any third party claim or
demand shall be asserted against any indemnified party in respect of any Losses
or any claim or demand in respect of any Obligations shall be asserted pursuant
to Section 8.2 or 8.3, the indemnified party shall promptly, and in any event
within 30 days after the receipt of notice of such claim or demand, if a claim
in respect thereof is to be made against the indemnifying party hereunder, cause
written notice thereof to be given to the indemnifying party; PROVIDED that
failure to so notify the indemnifying party shall not relieve the indemnifying
party from any obligations it may have to the indemnified party hereunder,
except to the extent that it is prejudiced by such failure. In the
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event any claim or demand for indemnification is made under this Article VIII,
the indemnifying party shall be entitled to participate fully in the action or
proceeding. Upon delivery by the indemnifying party to the indemnified party of
written notice, the indemnifying party may assume and control the defense of any
such claim or demand, including any proceeding relating to Section 8.2 or 8.3,
with counsel of its choice PROVIDED the indemnifying party proceeds with
diligence and in good faith with respect thereto. Thereafter, the indemnifying
party shall not be liable to the indemnified party hereunder for any fees of
other counsel subsequently accrued by the indemnified party in connection with
the defense thereof except as provided in this Section 8.4. In the event that
any claim or demand is made under this Article VIII, the indemnifying party and
the indemnified party shall cooperate fully with each other in connection with
the defense, negotiation or settlement of any such claim or demand, and each
party shall keep the other informed and apprised of the status of such claim or
demand. If the indemnifying party assumes and controls the defense of a claim,
the indemnified party shall be entitled to participate therein at its sole cost
and expense, but subject to the control of the indemnifying party. The
indemnified party may employ separate counsel, and the indemnifying party shall
bear the expenses of such separate counsel, if (a) in the written opinion of
counsel to the indemnified party, use of counsel of the indemnifying party's
choice would be expected to give rise to a conflict of interest, (b) the
indemnifying party shall not have employed counsel to represent the indemnified
party within a reasonable time after notice of the assertion of any such claim
or institution of any such action or proceeding, or (c) the indemnifying party
shall authorize the indemnified party in writing to employ separate counsel at
the expense of the indemnifying party. In no event shall the indemnifying party
be obligated to pay the fees and expenses of more than one counsel for all
indemnified parties with respect to any claim indemnified under this Article
VIII. Notwithstanding the foregoing provisions of this Section 8.4, (x) no
indemnifying party shall be entitled to settle any third party claim for which
indemnification is sought under this Article VIII without the indemnified
party's prior written consent unless as part of such settlement the indemnified
party is released from all liability with respect to such third party claim and
such settlement does not impose any equitable remedy on the indemnified party,
adversely affect the indemnified party's business or require the indemnified
party to admit any wrongdoing, and (y) no indemnified party shall be entitled to
settle any third party claim for which indemnification is sought under this
Article VIII without the indemnifying party's prior written consent unless the
indemnifying party has not assumed control of such claim and, as part of such
settlement, the indemnifying party is released from all liability with respect
to such third party claim and such settlement does not impose any equitable
remedy on the indemnifying party, adversely affect the indemnifying party's
business or require the indemnifying party to admit any wrongdoing.
ARTICLE IX
Miscellaneous
9.1 Mayflower and Citizens each acknowledge and agree that the
federal taxable year of SPL shall terminate on the Closing Date. Mayflower will
within 30 days after Closing deliver to SPL and Citizens a computation of the
federal tax due (the "Tax Due") by SPL for the short period ending on the
Closing Date, which amount (if any) shall thereupon be paid to SPL within 15
days of Mayflower's delivery of such computation. For purposes of such
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computation, (a) Mayflower shall "close the books" of SPL and assign tax items
to the time when each item was accrued, incurred or realized, except that
exemptions, allowances, and deductions that are calculated on an annual basis,
such as the deduction for depreciation, shall be apportioned on a time basis,
(b) SPL shall be given credit for estimated federal income taxes paid by it for
its short taxable year ending on the Closing Date ("Estimated Taxes"), and (c)
Mayflower shall pay to SPL any excess of Estimated Taxes over the Tax Due (if
any) within 15 days of Mayflower's delivery of the Tax Due computation. The
transactions contemplated by this Agreement shall be reported and recorded for
the short taxable year of SPL and for the deemed short taxable year of Security
Fire and Security Agency that ends with the Closing Date (the "Short Year"), and
within 30 days after the Closing Date, Mayflower shall prepare and provide to
Citizens (with the full assistance and cooperation of the staff of SPL) a
balance sheet of SPL, Security Fire and Security Agency as at immediately prior
to the Closing Date. The parties acknowledge that SPL has historically made
federal tax deposits under its own taxpayer identification number,
notwithstanding that it has filed a consolidated tax return with Mayflower since
the 1999 tax year. The parties further acknowledge that all federal tax deposits
made by SPL prior to Closing have been applied to the consolidated federal tax
return of Mayflower. The parties agree all federal tax deposits made by SPL
after the date of this Agreement for periods prior to Closing, including without
limitation the Short Year filings, shall be applied to the consolidated federal
tax return of Mayflower.
9.2 This Agreement (including the schedules and exhibits
referred to herein and which are hereby incorporated herein) constitutes the
entire agreement between the parties and supersedes any prior understandings,
agreements, or representations by or between the parties, written or oral, to
the extent related to the subject matter hereof. This Agreement may be modified
or amended only by a written document that is duly executed by Mayflower and
Citizens.
9.3 To facilitate the execution of this Agreement, any number
of counterparts hereof may be executed, and each such counterpart shall be
deemed to be an original instrument, but all such counterparts together shall
constitute but one instrument.
9.4 Each of the parties hereto will pay its own fees and
expenses incurred in connection with the transactions contemplated by this
Agreement, and SPL shall not bear any out-of-pocket costs and expenses
(including counsel fees and expenses) in connection with the preparation and
negotiation of this Agreement.
9.5 All parties to this Agreement agree that if it becomes
necessary or desirable to execute further instruments or to make such other
assurances as are deemed necessary, the party requested to do so will use its
best efforts to provide such executed instruments or do all things necessary or
proper to carry out the purpose of this Agreement.
9.6 Any notices, requests, or other communications required or
permitted hereunder shall be delivered personally or sent by overnight courier
service, fees prepaid, addressed as follows:
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To Citizens: To Mayflower:
Citizens, Inc. Mayflower Life Insurance Company
000 X. Xxxxxxxx Xxxx 0000 Xx. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000 Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, President Attn: General Counsel
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
with copies to: with copies to:
Xxxxx & Xxxxxx, PC Xxxxx Day
0000 Xxxxxxxx, Xxxxx 0000 0000 X. Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx, Esq. Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
or such other addresses as shall be furnished in writing by any party, and any
such notice or communication shall be deemed to have been given as of the date
received.
9.7 At all times at or before the Closing, except as may be required by
applicable law, Mayflower and Citizens will each consult with the other before
issuing or making any reports, statements or releases to the public with respect
to this Agreement or the transactions contemplated hereby and will use good
faith efforts to agree on the text of a joint public report, statement or
release or will use good faith efforts to obtain the other party's approval of
the text of any public report, statement or release to be made solely on behalf
of a party. If Mayflower and Citizens are unable to agree on or approve any such
public report, statement or release and such report, statement or release is, in
the opinion of legal counsel to the party seeking to make such disclosure,
required by law to discharge such party's disclosure obligations, then such
party may make or issue the legally required report, statement or release. Any
such report, statement or release approved or permitted to be made pursuant to
this Section 9.7 may be disclosed or otherwise provided by Mayflower or Citizens
to any person or entity, including to any employee or customer of either party
hereto and to any governmental or regulatory authority.
9.8 The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context otherwise requires. The word "including" shall
mean including without limitation. The
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section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this Agreement.
9.9 This Agreement shall be binding upon and inure to the benefit of
the parties named herein and their respective successors and permitted assigns.
No party may assign either this Agreement or any of his or its rights,
interests, or obligations hereunder.
9.10 Each party acknowledges and agrees that the other parties would be
damaged irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached.
Accordingly, each party agrees that the other parties shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having jurisdiction over the parties and the matter in
addition to any other remedy to which they may be entitled, at law or in equity.
Except as otherwise provided in Section 8.3(c), all remedies identified in this
Agreement are in addition to any remedies available at law or in equity.
9.11 This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of Texas without giving effect to any choice
or conflict of law provision or rule (whether of the State of Texas or any other
jurisdiction) that would cause the application of the laws or any jurisdiction
other than the State of Texas. Any term or provision of this Agreement that is
invalid or unenforceable shall not affect the validity or enforceability of the
remaining terms and provisions hereof.
9.12 In the event of any dispute, claim or controversy concerning,
arising out of or relating to this Agreement, its effect, the breach hereof, or
the transactions contemplated hereby, the same shall be settled by binding
arbitration before a three person arbitration panel. The selection of the panel
shall be made as follows: (1) each party shall appoint one arbitrator; (2) the
two arbitrators shall select a third arbitrator; PROVIDED, HOWEVER, the parties
retain their right to and shall not be prohibited, limited or in any way
restricted from, seeking or obtaining equitable or injunctive relief from a
court having jurisdiction over the parties. The arbitration shall be governed by
and conducted through the American Arbitration Association in accordance with
the then applicable Commercial Dispute Resolution Procedures. The results of the
arbitration shall be final, conclusive and binding upon the parties thereto, and
judgment on the award may be entered in any court having jurisdiction thereof.
In rendering the award, the arbitrators shall determine the rights and
obligations of the parties according to the substantive and procedural laws of
the State of Texas. Unless determined otherwise pursuant to an arbitration
hereunder, the parties participating in an arbitration hereunder will be charged
equally for all arbitration fees and expenses. Punitive or exemplary damages
shall not be permitted under any circumstances. The arbitration shall be held in
Dallas, Texas or at such other place as may be selected by mutual agreement of
the parties.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
as of the date first set forth above by the duly authorized officers of each of
Citizens and Mayflower.
CITIZENS INSURANCE COMPANY MAYFLOWER NATIONAL LIFE
OF AMERICA INSURANCE COMPANY
BY: _________________________ BY: _________________________
XXXX X. XXXXXX, PRESIDENT XXXXX X. XXXXXXX, PRESIDENT
AND CEO
EXHIBIT A
---------
MAYFLOWER DISCLOSURE STATEMENT
------------------------------
EXHIBIT A
MAYFLOWER DISCLOSURE SCHEDULE
Pursuant to the provisions of the Stock Purchase Agreement, dated June
17, 2004, by and between Citizens Insurance Company of America ("Citizens") and
Mayflower National Life Insurance Company ("Mayflower") (the "Agreement"),
Mayflower hereby makes the following disclosures respecting the similarly
numbered sections in the Agreement. All terms beginning with initial capital
letters that are not otherwise defined in this Disclosure Schedule shall have
the same meaning as set forth in the Agreement.
SECTION 3.3:
Agreement with Xxxxxxx, Xxxxxxx & Co. LLC to provide certain investment banking
services to Mayflower.
SECTION 3.6:
The Louisiana Department of Insurance is conducting its periodic
examination for the years 2000-2003; as of the date of this Agreement no
deficiencies have been asserted and Mayflower will promptly provide an update
with respect to any assertions that may be made.
SECTION 3.7:
None
SECTION 3.8:
1. POTENTIAL CLAIM. Former employee, Xxxxxxxx Xxxxxxxx, gave notice of
desiring arbitration on September 12, 2002, but never pursued formal
arbitration.
2. KANSAS, ET AL V. SECURITY INDUSTRIAL INSURANCE COMPANY (CASE NO. 19
97-0116). Plaintiff brought suit in the Civil District Court for the
Parish of Orleans on January 21, 1997. The policy provided for a metal
casket and the insured was to be buried in a Jewish cemetery where only
wooden caskets are allowed. The funeral home refuses to allow a casket
substitution. The suit includes the funeral home as a defendant. This
is a death claim for which plaintiff alleges $70,000 in damages.
3. RIDEAU V. SECURITY PLAN LIFE INSURANCE COMPANY (CASE NO. 02-C-3907-A).
Plaintiff brought suit in the 27th Judicial District Court in the
Parish of St. Xxxxxx on September
25, 2002. The insured was not in sound health on the date of issue.
This is a declined death claim for which plaintiff alleges $4,732 in
damages.
4. XXXXXXXX X. SECURITY INDUSTRIAL INSURANCE COMPANY (CASE NO. 76588-A).
Plaintiff brought suit in the 15th Judicial District Court in the
Parish of Vermilion on July 20, 2001. The accidental death benefits
were denied due to the insured's death being the result of a multidrug
overdose. This is a declined accidental death benefit claim for which
plaintiff alleges the insurance amount of $29,917 plus legal interest,
penalties, reasonable attorney's fees and all costs of the proceedings
as damages.
5. XXXXXXX V. AMERICAN GENERAL PROPERTY INSURANCE COMPANY AND SECURITY
INDUSTRIAL INSURANCE COMPANY (CASE NO. 76942-I). Plaintiff brought suit
in the 22nd Judicial District Court in the Parish of Washington on
April 8, 1998. The insured had $20,000 of contents coverage and
$5,218.76 was paid. This is a fire claim for which plaintiff alleges
$50,000 in damages.
6. XXXXX V. SECURITY PLAN LIFE INSURANCE COMPANY, ET AL (CASE NO.
00074385C). Plaintiff brought suit in the 23rd Judicial District Court
in the Parish of Ascension on February 3, 2003. This suit alleges that
low income and uneducated segments of African Americans were targeted
for specific life products.
7. COLIN, ET XX X. XXXXX, ET AL (CASE NO. 00-57004). Plaintiff brought
suit in the 0xx Xxxx Xxxxx of the City of New Orleans, Louisiana on
October 6, 2000. Xxxxx was involved in an automobile accident and his
insurer was Young American Insurance Company. However, the Young
American Insurance Co. which was acquired by SPL did not sell
automobile insurance and the suit was brought in error. Plaintiff's
attorney stated he would take care of the release.
8. XXXXXXXX X. XXXXXXXXX, ET AL (CASE NO. C 496559 F). Plaintiff brought
suit in the 19th Judicial District Court in the Parish of East Baton
Rouge on August 6, 2002. Xxxxxxxxx was involved in an automobile
accident and his insurer was American Standard Insurance Company.
However, the business acquired by SPL from American Standard was not
automobile insurance and the suit was brought in error.
9. XXXXXXXX & CO., ET AL V. DEPENDABLE TRANSPORT INC, ET AL (INDEX #
113631/03). Plaintiff brought suit in the Supreme Court of the State of
New York in the County of New York on November 4, 2003. This is a case
involving automobile insurance and the suit was brought in error.
10. XXXXX, ET XX X. SI-SIFH CORP., ET AL (CASE NO. 97-12045). Plaintiff
brought suit in Civil District Court in the Parish of Orleans on April
13, 2004. Plaintiffs were denied right to substitute caskets by the
funeral home. Plaintiff's counsel is attempting to consolidate
additional plaintiffs in this action. This case has been previously
denied class certification and was originally brought against the
funeral homes which settled the various actions.
2
11. XXXXXXXXX V. SECURITY INDUSTRIAL INSURANCE COMPANY (CASE NO.
00069730E). Plaintiff brought suit in the 23rd Judicial District Court
in the Parish of Ascension. Plaintiff is a former employee alleging
wrongful termination and is suing for backpay, benefits, and equitable
damages. Defendants are drafting a motion for summary judgment.
12. REFUGE V. SECURITY INDUSTRIAL INSURANCE COMPANY (CASE NO. 01-50749).
Plaintiff brought suit in the First City Court of the City of New
Orleans. Plaintiff is a former employee alleging that she was not paid
full wages and is petitioning for past wages of $1,150.
SECTION 3.10:
1. Reinsurance Agreement between Security Industrial Insurance Company and
Mayflower National Life Insurance Company, effective January 1, 1999.
2. Agreement for Backfile Scanning of Policy Applications between
Cherbonnier, Mayer & Associates, Inc. and Security Plan, Inc.
3. Property Catastrophe Excess of Loss Reinsurance Contract between
Security Plan Fire Insurance Company and Xxx Xxxxxxxxx & Company, Inc.,
effective January 1, 2004.
4. Investment Advisory Agreement between Security Plan Fire Insurance
Company and XxXxxxxxx Investment Management, LLC (successor by
assignment to Xxx Xxxxxx Management Inc.), effective November 15, 2000.
5. Investment Advisory Agreement between Security Plan Life Insurance
Company and XxXxxxxxx Investment Management, LLC (successor by
assignment to Xxx Xxxxxx Management Inc.), effective November 15, 2000.
6. Customized Pricing Arrangement Agreement between BellSouth Long
Distance, Inc. and/or BellSouth BSE, Inc., as applicable, and Security
Plan Life Insurance Company, dated July 15, 2002.
7. Consulting Agreement between Security Plan Life Insurance Company and
X.X. Xxxxxxx, dated September 22, 2003.
8. Letter Agreement between Disney Cruise Vacations and Security Plan Life
Insurance Company, dated September 17, 2003. Security Plan Life
Insurance Company has approximately $19,500 remaining to be paid under
this Letter Agreement.
9. Administrative Services Agreement between Security Plan Life Insurance
Company and Louisiana Health Service & Indemnity Company d/b/a Blue
Cross and Blue Shield of Louisiana, and its subsidiary HMO Louisiana,
Inc., effective January 1, 2004, through December 31, 2004.
3
10. Excess Auto Liability Policy between Security Plan Life Insurance
Company and American Empire Surplus Lines Insurance Company for the
policy period July 19, 2003, to July 19, 2004.
11. Tax Sharing Agreement between Security Plan Life Insurance Company and
Mayflower Life Insurance Company, effective January 1, 2000.
12. Reinsurance Agreement between Security Industrial Insurance Company and
Mayflower Life Insurance Company, effective January 1, 2000.
13. Stop-Loss Insurance Policy between Louisiana Health Service & Indemnity
Company and Security Plan Life Insurance Company, effective January 1,
1991 (current policy year ends December 31, 2004).
14. District 2 Lease for 0000-X Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX, from
January 16, 2003 to January 31, 2008, with a minimum monthly payment of
$2,055.41.
15. District 12 Lease for 0000 Xxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, XX, from
April 1, 2004 to March 31, 2007, with a minimum monthly payment of
$2,225.00.
16. District 14 Lease for 0000 Xxxxxxxxx Xx., Xxxxx X, Xxx Xxxxxxx, XX,
from April 1, 2004 to March 31, 2009, with a minimum monthly payment of
$3,500.00.
17. District 29 Lease for 0000 X 0-00 Xxxxxxx Xx., Xxxxx 000, Xxxxxxxx, XX,
from April 1, 2004 to March 31, 2007, with a minimum monthly payment of
$2,556.25.
18. District 35 Lease for 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX, from
May 1, 2003 to April 30, 2006, with a minimum monthly payment of
$2,082.17.
19. District 1 Lease for 0000 Xxx 0 Xxxxx, Xxxxxxxxxxxxxx, XX, from
February 1, 2000 to January 31, 2005, with a minimum monthly payment of
$650.00.
20. Support Center - Operations Lease for 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxxxx, XX, from January 1, 2004 to December 31, 2008, with a
minimum monthly payment of $2,000.00.
21. Support Center - File Room Lease for 000/000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxxxxxx, XX, from November 1, 2003 to October 31, 2004, with a
minimum monthly payment of $800.00.
22. Support Center - Warehouse Lease for 000 Xxxxxx Xx., Xxxx. X,
Xxxxxxxxxxxxxx, XX, month to month, with a minimum monthly payment of
$250.00.
23. District 3 Lease for 000-X Xxxx X00 Xxxxxxx Xxxx, Xxxxxxx, XX,
month-to-month, with a minimum monthly payment of $788.00.
24. District 4 Lease for 000 X. Xxxxx Xx., Xxx. X, Xxxxxx Xxxxx Xxxxx, Xxx
Xxxxxx, XX, from February 1, 2003 to January 31, 2006, with a minimum
monthly payment of $1,604.17.
4
25. District 5 Lease for 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX, from January 1,
2002 to December 31, 2004, with a minimum monthly payment of $750.00.
26. District 8 Lease for 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx, XX, from September
1, 2003 to August 31, 2004, with a minimum monthly payment of $400.00.
27. District 9 Lease for 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX, month to month,
with a minimum monthly payment of $1,200.00.
28. District 10 Lease for 0000 Xxx 000, Xxx. 0, Xxxxx, XX, from May 1, 2004
to April 30, 2007, with a minimum monthly payment of $1,384.00.
29. District 15 Lease for 0000 Xxxxx Xxxxx, Xxxxxx, XX, from September 1,
2001 to August 31, 2004, with a minimum monthly payment of $1,200.00.
30. District 23 Lease for 000 X. XxXxxxx, Xxxx Xxxxxxx, XX, from November
1, 2003 to November 30, 2006, with a minimum monthly payment of
$1,950.00.
31. District 24 Lease for 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX, from March
1, 2004 to February 28, 2009, with a minimum monthly payment of
$1,600.00.
32. District 5 Lease for 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX, from
February 1, 2003 to January 30, 2006, with a minimum monthly payment of
$725.00.
33. District 34 Lease for 000 X. Xxxxxxx Xxxxxx, Xxxxxx, XX month to month,
with a minimum monthly payment of $550.00.
34. District 34 Lease for 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxx, XX, from
December 1, 2002 to November 30, 2005, with a minimum monthly payment
of $1,100.00.
35. District 41 Lease for 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0, Xxxxxxxxxx, XX,
from October 1, 2001 to September 30, 2006, with a minimum monthly
payment of $1,325.00.
36. District 41 Lease for 000 Xxxx 0xx Xxxxxx, Xxxxxxxxxxxx, XX, from May
1, 2002 to April 30, 2005, with a minimum monthly payment of $700.00.
37. District 41 Lease for 000 Xxxxxxxxxx, Xxxxxxxxxx, XX, month to month,
with a minimum monthly payment of $175.00.
38. District 50 Lease for 0000 XX Xxxxxxx Xxxx, Xxxxxxxx, XX, from
September 1, 2001 to August 31, 2004, with a minimum monthly payment of
$800.00.
39. District 50 Lease for 000 Xxxxxx Xx., Xxx. 000, Xxxxxxxx, XX, from
March 1, 2004 to February 28, 2005, with a minimum monthly payment of
$150.00.
40. District 51 Lease for 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxx, XX, from May 1,
2002 to April 30, 2005, with a minimum monthly payment of $875.00.
5
41. Region 1 Lease for 000 Xxxxx Xxxxx, Xxxxx X, Xxxxxxx, XX, from month to
month, with a minimum monthly payment of $300.00.
42. Region 2 Lease for 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX, from
March 1, 2001 to February 28, 2006, with a minimum monthly payment of
$1,400.37.
43. Region 3 Lease for 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 0/0, Xxxxxxxxx, XX,
from November 1, 2002 to October 31, 2004, with a minimum monthly
payment of $715.00.
44. District 10 Lease for 0000 Xxx 00 X., Xxxxx 000, Xxxxxx Xxxx, XX, month
to month, with a minimum monthly payment of $125.50.
45. Support Center - Storage Lease for 00000 Xxxxxxxxxx Xx., Xxxxxxxx, XX,
month to month, with a minimum monthly payment of $98.00.
46. District 3 Lease for 0000 X. Xxxxxx Xxxxxx, Xxxxx X, Xxxxxxx, XX, from
May 1, 2003 to April 30, 2006, with a minimum monthly payment of
$1,230.00.
47. Oral agreement between SPL and Xxxxxx Xxxxx for accounting and
actuarial services. In 2003 the total SPL paid Xx. Xxxxx was
$79,570.00. The following are approximate payments by SPL to Xx. Xxxxx
for the described services:
o $3,550.00 per month retainer.
o $1,650 per month for accounting and actuarial services.
o $750 per quarter for quarterly APOLA.
48. Optimum Reinsurance Agreement as disclosed on Schedule S, Part 3,
Section 1, of the 2003 Annual Statement for SPL.
49. Executive Medical Reimbursement Plan in which middle managers receive
maximum reimbursement of $5,000 and executives receive maximum
reimbursement of $10,000 for certain medical expenses. Boston Mutual
Life Insurance underwrites the Reimbursement Plan. Additionally, SPL
pays the hospitalization, life insurance and AD&D coverage premiums in
full for certain employees.
SECTION 3.13:
1. Blue Cross Blue Shield Group Hospitalization
2. Guardian Dental Group Plan
3. Prudential Financial Short/Long Term Disability Plan
4. Group Term Life
5. Alderwoods 401(k) Retirement Plan
6
6. Executive Medical for Key Managers
7. Key Managers Bonus Plan
8. Vacation
9. Sick Leave
10. Employee Assistance Program
11. Service Awards Program
12. SPL Premium Only Plan (Cafeteria Plan)
SECTION 3.14:
None
SECTION 3.16:
1. Letter of Credit between Hibernia National Bank and Security Plan Life
Insurance Company, dated December 23, 2003, in the amount of $250,000.
SECTION 3.17:
None
SECTION 4.5(D):
None
SECTION 4.5(G):
1. Bonus accruals will continue to be made monthly to fund the 2004
Incentive Plan (the "Plan") of SPL consisting of 18 employees with a
target annual payout of $205,000
7
(ranging from a low of $133,000 to a maximum of $307,000). Bonuses will
be calculated on a pro-rata basis and paid to participating employees
pursuant to the provisions of Section 4.7 of the Agreement.
2. Any contracts or agreements, used in the ordinary course of business,
with agents, regional managers, district managers, staff managers,
sales persons or other insurance personnel that Mayflower, SPL or
Security Fire considers reasonable for the conduct of the business of
SPL or Security Fire, in accordance with the customary business
practices of SPL or Security Fire, as appropriate.
3. Deferred compensation payment to G. Xxxxx Xxxxxx ("Xxxxxx") of
$1,057.55 per month payable until the death of Xxxxxx.
4. Deferred compensation payment to Xxxxxxx Xxxxxx ("Xxxxxx") of $95.05
per month payable until the death of Xxxxxx.
5. Severance payment to Xxxxxxx Xxxxx Xxxxx of $6,630 payable monthly for
the 6 month period starting February 1, 2004, and ending July 1, 2004.
SECTION 4.5(H):
The following properties are currently listed for sale:
1. 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX
Listing Price: $59,900.00
2. 0000 Xxxxxxx Xxx., Xxxxxxxxxx, XX
Listing Price: $59,900.00
The following property is to be listed for sale in June, 2004:
1. 000 Xxxxxx Xxxxxx, Xxxxx, XX
SECTION 4.5(I):
Jukebox (estimated to be $75,000)
AS400 printers (estimated to be $20,000)
Hardware for imaging project, including scanners and digital cameras
(estimated to be $75,000)
8
SECTION 4.5(M):
None
SECTION 4.5(O):
None
SECTION 6.2(G):
MORTGAGE LOAN RECEIVABLE FROM ALDERWOODS (LOUISIANA), INC.
In connection with the predecessor of Alderwoods Group, Inc.'s
acquisition of the insurance business of SPL, SPL transferred certain
investments in affiliated common stock to an affiliate, in exchange for a
$6,600,000 mortgage loan (dated 3/26/96) secured by certain funeral home assets
in the Greater New Orleans area and the Promissory Note. The mortgage loan
requires monthly principal and interest of $59,974.25, interest at 10%, with a
25-year amortization. The outstanding loan balance is $3,844,912.71 as of May
31, 2004. The mortgage loan is current under its original terms. The Promissory
Note shall be paid and the mortgage will be satisfied as set forth in Section
4.9 of the Agreement.
TAX SHARING AGREEMENT WITH MAYFLOWER NATIONAL LIFE
Since tax year 1999, SPL has filed a consolidated tax return with its
parent, Mayflower. SPL has historically made federal tax deposits under its own
taxpayer identification number, and will continue to do so up to the Closing
Date. All federal tax deposits made by SPL have been appropriately applied to
the consolidated federal tax return of Mayflower.
2003 FEDERAL INCOME TAXES - At December 31, 2003, SPL reported a
current tax receivable of $1,518,987 in its statutory balance sheet, and
represents the net federal tax overpayment made by SPL, based on its estimated
income tax accrual for 2003. Upon completion and filing of Mayflower's
consolidated federal income tax return, and consistent with its tax sharing
agreement with Mayflower, SPL's federal income tax receivable for 2003 (after
any adjustment required to "true-up" for its share of the actual 2003 federal
income taxes) will be settled by Mayflower within 45 days of filing Mayflower's
consolidated tax return for 2003. Mayflower's 2003 consolidated federal income
tax return will be filed on or before September 15, 2004. In any event, SPL's
adjusted 2003 federal income tax receivable will be settled with Mayflower prior
to the Closing Date.
2004 FEDERAL INCOME TAXES - During 2004 SPL will be making quarterly
federal income tax deposits up to the Closing Date. The 2004 current federal
income tax receivable or payable
9
computed as of the Closing Date (included in the Closing Balance Sheet prepared
within 30 days of the Closing) will be settled with Mayflower within 45 days
subsequent to the Closing pursuant to Section 9.1 of the Agreement.
ACCRUED REIMBURSED EXPENSES DUE TO ALDERWOODS GROUP, INC. ("ALDERWOODS")
At December 31, 2003, SPL reported in its statutory balance sheet a
payable of $1,317,740 due to Alderwoods for expense reimbursements. The balance
due at year end 2003 comprised of $837,740 of expenses, primarily legal fees
incurred in 2000 and 2001 related to the class-action litigation, and $480,000
related to the allocation of the cost of property and liability coverage for the
years 2000 through 2003 ($10,000 per month). Additionally as of December 31,
2003, SPL reported in its statutory balance sheet a payable of $110,000 due to
Alderwoods for legal fees related to the class action litigation.
During 2004 SPL has continued to accrue, and will continue to accrue,
up to the Closing Date, $10,000 per month for its allocated share of the cost of
property and liability coverage.
The entire amount due by SPL to Alderwoods will be settled prior to the
Closing Date.
100% COINSURED APOLA INSURANCE BLOCK
The following is not an "intercompany account" but is being disclosed
in the interest of disclosing intercompany transactions:
Effective January 1, 1999, SPL entered into a 100% coinsurance
agreement with Mayflower, whereby Mayflower assumed approximately $4.9 million
of insurance in force with reserves of approximately $2.6 million. As of
December 31, 2003, this insurance block represented approximately $3.2 million
of insurance in force and approximately $2.2 million of reserves. Mayflower pays
SPL approximately $1,000 per quarter for the administration of this business.
INTERCOMPANY SOFTWARE LICENSING AGREEMENT
The following is not an "intercompany account" but is being disclosed
in the interest of disclosing intercompany transactions:
SPL, as a subsidiary of Alderwoods, participates in Alderwoods'
software licensing agreement with Microsoft. As such, SPL is licensed to use MS
Windows xp Professional and MS Office xp Professional on its approximate 175
personal computers. Additionally, SPL is licensed to use Norton AntiVirus
corporate edition on its personal computers. No charge is allocated to SPL from
Alderwoods for the cost of such software licensing. At Closing, when SPL ceases
to be a subsidiary of Alderwoods, SPL will no longer participate in the
licensing agreement with Microsoft.
10
SECTION 8.3(B):
1. POTENTIAL CLAIM. Former employee, Xxxxxxxx Xxxxxxxx, gave notice of
desiring arbitration on September 12, 2002, but never pursued formal
arbitration.
2. KANSAS, ET AL V. SECURITY INDUSTRIAL INSURANCE COMPANY (CASE NO. 19
97-0116). Plaintiff brought suit in the Civil District Court for the
Parish of Orleans on January 21, 1997. The policy provided for a metal
casket and the insured was to be buried in a Jewish cemetery where only
wooden caskets are allowed. The funeral home refuses to allow a casket
substitution. The suit includes the funeral home as a defendant. This
is a death claim for which plaintiff alleges $70,000 in damages.
3. RIDEAU V. SECURITY PLAN LIFE INSURANCE COMPANY (CASE NO. 02-C-3907-A).
Plaintiff brought suit in the 27th Judicial District Court in the
Parish of St. Xxxxxx on September 25, 2002. The insured was not in
sound health on the date of issue. This is a declined death claim for
which plaintiff alleges $4,732 in damages.
4. XXXXXXXX X. SECURITY INDUSTRIAL INSURANCE COMPANY (CASE NO. 76588-A).
Plaintiff brought suit in the 15th Judicial District Court in the
Parish of Vermilion on July 20, 2001. The accidental death benefits
were denied due to the insured's death being the result of a multidrug
overdose. This is a declined accidental death benefit claim for which
plaintiff alleges the insurance amount of $29,917 plus legal interest,
penalties, reasonable attorney's fees and all costs of the proceedings
as damages.
5. XXXXXXX V. AMERICAN GENERAL PROPERTY INSURANCE COMPANY AND SECURITY
INDUSTRIAL INSURANCE COMPANY (CASE NO. 76942-I). Plaintiff brought suit
in the 22nd Judicial District Court in the Parish of Washington on
April 8, 1998. The insured had $20,000 of contents coverage and
$5,218.76 was paid. This is a fire claim for which plaintiff alleges
$50,000 in damages.
6. XXXXX V. SECURITY PLAN LIFE INSURANCE COMPANY, ET AL (CASE NO.
00074385C). Plaintiff brought suit in the 23rd Judicial District Court
in the Parish of Ascension on February 3, 2003. This suit alleges that
low income and uneducated segments of African Americans were targeted
for specific life products.
7. COLIN, ET XX X. XXXXX, ET AL (CASE NO. 00-57004). Plaintiff brought
suit in the 0xx Xxxx Xxxxx of the City of New Orleans, Louisiana on
October 6, 2000. Xxxxx was involved in an automobile accident and his
insurer was Young American Insurance Company. However, the Young
American Insurance Co. which was acquired by SPL did not sell
automobile insurance and the suit was brought in error. Plaintiff's
attorney stated he would take care of the release.
8. XXXXXXXX X. XXXXXXXXX, ET AL (CASE NO. C 496559 F). Plaintiff brought
suit in the 19th Judicial District Court in the Parish of East Baton
Rouge on August 6, 2002. Xxxxxxxxx was involved in an automobile
accident and his insurer was American Standard Insurance Company.
However, the business acquired by SPL from American Standard was not
automobile insurance and the suit was brought in error.
11
9. XXXXXXXX & CO., ET AL V. DEPENDABLE TRANSPORT INC, ET AL (INDEX #
113631/03). Plaintiff brought suit in the Supreme Court of the State of
New York in the County of New York on November 4, 2003. This is a case
involving automobile insurance and the suit was brought in error.
10. XXXXX, ET XX X. SI-SIFH CORP., ET AL (CASE NO. 97-12045). Plaintiff
brought suit in Civil District Court in the Parish of Orleans on April
13, 2004. Plaintiffs were denied right to substitute caskets by the
funeral home. Plaintiff's counsel is attempting to consolidate
additional plaintiffs in this action. This case has been previously
denied class certification and was originally brought against the
funeral homes which settled the various actions.
11. XXXXXXXXX V. SECURITY INDUSTRIAL INSURANCE COMPANY (CASE NO.
00069730E). Plaintiff brought suit in the 23rd Judicial District Court
in the Parish of Ascension. Plaintiff is a former employee alleging
wrongful termination and is suing for backpay, benefits, and equitable
damages. Defendants are drafting a motion for summary judgment.
12. REFUGE V. SECURITY INDUSTRIAL INSURANCE COMPANY (CASE NO. 01-50749).
Plaintiff brought suit in the First City Court of the City of New
Orleans. Plaintiff is a former employee alleging that she was not paid
full wages and is petitioning for past wages of $1,150.
12
EXHIBIT B
---------
LEGAL OPINION LETTER FROM COUNSEL FOR MAYFLOWER
-----------------------------------------------
EXHIBIT B
LEGAL OPINION LETTER FROM COUNSEL FOR MAYFLOWER
1. Mayflower has the requisite corporate power and authority to
enter into the Agreement, to perform its obligations
thereunder and to consummate the transactions contemplated
thereby.
2. The execution and delivery of the Agreement by Mayflower, the
performance by Mayflower of its obligations thereunder and the
consummation by Mayflower of the transactions contemplated
thereby (a) have been duly authorized by all necessary
corporate action on the part of Mayflower, (b) do not
contravene any provision of Mayflower's articles of
incorporation or bylaws and (c) do not contravene any present
law, or present regulation of any governmental agency or
authority, of the State of Indiana.
3. Assuming that all consents, approvals, authorizations and
other actions have been obtained and all filings,
notifications, approvals and other actions referred to in
Article V and Sections 6.1(a) and 6.1(b) of the Purchase
Agreement have been made or obtained, the execution and
delivery of the Agreement by Mayflower, the performance by
Mayflower of its obligations thereunder and the consummation
by Mayflower of the transactions contemplated thereby will not
violate (a) any present law, or present regulation of any
governmental agency or authority, of the United States of
America or (b) any agreement binding upon Mayflower or its
property that is listed on Annex ___ to the Officer's
Certificate of Mayflower delivered to us in connection with
this opinion. [Copy of Officer's Certificate to be attached to
opinion with list of material agreements.]
4. The Purchase Agreement has been duly executed and delivered by
Mayflower and, assuming that the Agreement constitutes a valid
and binding obligation of Citizens, constitutes a legal, valid
and binding obligation of Mayflower, enforceable against
Mayflower in accordance with its terms.
5. SPL is validly existing and in good standing under the laws of
the State of Louisiana. Security Fire is validly existing and
in good standing under the laws of the State of Louisiana.
The opinions expressed herein are limited to (a) with respect to the
opinions expressed in paragraphs 1 and 2 above, the laws of the State of Indiana
and (b) with respect to the opinions expressed in paragraphs 3 and 4 above, the
federal laws of the United States of America and the Texas Business Corporation
Act. In connection with the opinions expressed in paragraph 5 above, we have
relied solely upon certificates of public officials as to the factual matters
and legal conclusions set forth therein, copies of which have been provided to
you. With respect to the opinions expressed in paragraphs 2(c) and 3(a) above,
our opinions are limited to only those laws and regulations that, in our
experience, are normally applicable to transactions of the type contemplated by
the Agreement.
[Other customary qualifications to be included.]
