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EXHIBIT 10.1
AGREEMENT OF SALE AND PURCHASE OF ASSETS
This Acquisition Agreement ["Agreement"] has been made and entered into as of
this 1st day of October 2004, among ENB INSURANCE AGENCY, INC., a New York
Corporation ("ENB" or "Purchaser") and XXXXXX & COMPANY, INC. ("Xxxxxx" or
"Seller"), XXXXXX DEVELOPMENT COMPANY, LLC ("UDC") and XXXXX X. XXXXXX
("Xxxxx"), Individually, and as sole Shareholder ("Shareholder"), of Xxxxxx &
Company, Inc. and UDC.
RECITALS:
1. ENB desires to acquire substantially all of the business, assets and
property of Xxxxxx, subject to certain of its liabilities, and Xxxxx who holds
all of the stock of Xxxxxx, wishes to sell its assets and business pursuant to
the terms of this Agreement;
2. Xxxxx Bancorp, Inc., a New York corporation and indirect parent of
ENB (the "Parent") will provide the capital to ENB to finance the purchase of
the business, assets, and property, which ENB will acquire pursuant to this
Agreement.
3. UDC is the owner of Real Property located at 000 Xxxx Xxxxxx,
Xxxxxxxx, XX and is the landlord of Seller.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
conditions herein contained, and in order to implement such plan, the parties
represent, warrant, covenant, and agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 Agreement. The term "Agreement" shall mean this document.
1.2 Acquired Assets. The term "Acquired Assets" shall have the meaning ascribed
to it in Section 2.1.
1.3 Budget. The stated Budget for Seller's Agency shall be $1,105,700.00, gross
income, excluding amortization of the Purchase Price (see Exhibit 1-3 attached).
1.4 Contingent or Incentive Income. The term "Contingent or Incentive Income"
shall mean any revenue received by ENB from insurance companies or insurance
brokers other than commissions on Specific Accounts.
1.5 Covenant. The term "Covenant" shall mean a noncompetition agreement between
Xxxxx Xxxxxx and ENB.
1.6 Customer List. The term "Customer List" shall mean a list of those current
and past customers of Seller for which Seller has provided services within the
past five (5) years.
1.7 Employee Benefit Plan. The term "Employee Benefit Plan" shall mean any (a)
nonqualified deferred compensation or retirement plan or arrangement which is an
Employee Pension Benefit Plan, (b) qualified defined contribution retirement
plan or arrangement which is an Employee Pension Benefit Plan, (c) qualified
defined benefit retirement plan or arrangement which is an Employee Pension
Benefit Plan (including any Multiemployer Plan), (d) Employee Welfare Benefit
Plan or material fringe benefit plan or program , or (e) any bonus, incentive,
severance, stock option, stock purchase, short term disability plan or other
material fringe benefit plan, program or arrangement, including policies
concerning holidays, vacations and salary considerations during short absences
for illness or otherwise.
1.8 Encumbrance. The term "Encumbrance" shall mean any charge, claim, community
property interest, condition, equitable interest, lien, option, pledge, security
interest, right of first refusal, or restriction of any kind,
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including any restriction on use, voting (in the case of any security),
transfer, receipt of income, or exercise of any other attribute of ownership.
1.9 Key Accounts. The term "Key Accounts" shall mean the top ten (10) customers
of Seller as shown on Exhibit 6-1(P)1.
1.10 Material Adverse Effect. The term "Material Adverse Effect" shall mean,
with respect to an entity, a business, or assets, any condition, event, change
or occurrence that has or may reasonably be expected to have, a material adverse
effect on the assets, business, prospects, operations, results of operations, or
financial condition of such business, entity or assets.
1.11 Ordinary Course of Business. The term "Ordinary Course of Business" shall
mean actions consistent with the past practices of the designated party which
are similar in nature and style to actions customarily taken by the designated
party and which do not require, and in the past have not received, specific
authorization by the board of directors of the designated party.
1.12 Person. The term "Person" shall mean an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
1.13 Records. The term "Records" means all records in the possession of Seller
relating to the business of the Seller.
1.14 Seller Insurance Expirations. The term "Seller Insurance Expirations":
shall mean all insurance business of Seller including but not limited to Health,
Life, Casualty, Property and Liability premiums either directly billed from the
Insurance Company or Seller Agency xxxxxxxx.
1.15 Seller Inventory. The term " Seller Inventory" shall mean the stock in
trade of Seller, being the items described in Appendix "2" annexed hereto and
made a part hereof.
1.16 Seller Property. The term " Seller Property" shall mean the Seller
Equipment and Seller Furniture and Fixtures owned by Seller located at 000 Xxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, as specifically described in Appendix "1"
annexed hereto and made a part hereof, as per list submitted.
ARTICLE 2
SALE AND PURCHASE OF ASSETS
2.1 Transfer and Assignment of Acquired Assets. On the Closing Date, subject to
the terms and conditions set forth in the Agreement, Seller shall convey,
transfer, assign and deliver to ENB all Xxxxxx'x assets, properties, and
business of every kind, character, and description, whether tangible or
intangible, whether personal or mixed, and wherever located on the Closing Date
(except for those excluded by Section 2.2 hereof)(the "Acquired Assets"), and
ENB shall accept those Acquired Assets. The Acquired Assets of Xxxxxx to be
transferred shall include, but shall not be limited to the following:
(A) Furniture and Fixtures. All furniture, fixtures, leasehold
improvements, office equipment and machines, computers and related items, owned
by Seller.
(B) Office supplies. All office supplies and materials whether located
at the premises or elsewhere, owned by Seller or its subsidiaries.
(C) Insurance Company Agreements. All of Seller's rights under the
insurance company contracts, written or oral, with the insurance companies
listed on Exhibit 2.1(C) to this Agreement, including any contingent commissions
or other contingency income received after Closing (the "Insurance Company
Agreements").
(D) Insurance Accounts. All present insurance business, consulting
accounts, insurance accounts, interests in insurance expirations and customers
of Seller including all rights, claims or causes of action that Seller has or
may have in the future against any insurance company, agent or broker or any
other party involving the ownership of the past and present insurance accounts
and expirations of Seller and including any outstanding proposals, quotations or
bids or contracts with customers for insurance products or services (the
"Insurance Accounts").
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(E) Restrictive Covenants. All covenants not to compete and restrictive
covenants with current and former employees, agents, consultants, and former
owners of previously acquired businesses including the restrictive covenants
listed on Exhibit 2.1(E) (the "Restrictive Covenants").
(F) Intangibles. All other intangible personal property or intellectual
property owned by Seller, including but not limited to the trademarks,
trade-names and other intangible assets, listed on Exhibit 2.1 to this Agreement
and all material contracts listed in Exhibit 2.1(F-1) to this Agreement.
(G) Telephone Numbers and Fax Numbers. Seller's rights in, if any to
all, telephone numbers listed on Exhibit 2.1(G).
(H) Books and records. All books, papers, records and files of Seller
pertaining in any way to the Business of Seller or the Acquired Assets,
including without limitation, sales correspondence, customer lists, credit and
sales records, purchasing records, data processing records, and all documents
and records pertaining to the properties and assets to be transferred pursuant
to this Agreement.
(I) Post Office Box.
(J) (Per ENB) Equipment leases approved by Seller and listed in Exhibit
2.1.
2.2 Assets Not Being Acquired. Excluded from the assets to be conveyed,
transferred, assigned by Seller and accepted by ENB under Section 2.1 include,
but are not limited to:
(A) Cash. Except as otherwise set forth below, all cash in Seller's bank
accounts or in its possession.
(B) Claims. All claims for money due and owing, claims and rights to tax refunds
and tax loss carry-forwards, rights, if any, under any condemnation proceedings,
except as provided in Section 2.1(D) and all other claims and rights of every
kind existing and owned by Seller on the Closing Date.
(C) Life Insurance. Any life insurance policies on the Shareholder
listed on Exhibit 2.2(C).
(D) Personal Property of Shareholder. The personal property owned by the
Shareholder, which is located in the office and listed on Exhibit 2.2(D).
(E) Seller's Accounts Receivable as defined in Section 3.1 below.
2.3 Assumption and Payment of Specific Liabilities. Except as provided in this
Section 2.3, ENB shall not assume and shall not be deemed to have assumed any
liability, debt or obligation of Seller. At the Closing, Purchaser agrees to and
shall assume only those liabilities of Seller incurred directly in connection
with the Business that are identified on Exhibit 2.3 annexed hereto and made a
part hereof.
2.4 Consideration. In consideration of and in exchange for the foregoing
transfers, assignments, and conveyances and subject to compliance by Shareholder
of his undertakings contained herein, ENB shall pay as the total Purchase Price
for the Acquired Assets, the sum of $6,825,000.00 payable to the Seller as
follows:
1. (a) $6,425,000.00 in cash at closing
(b) $300,000.00 to be paid over the next 12 months as follows: for the
first three quarters ending on December 31, 2004, March 31, 2005, June 30, 2005;
60% of the commission received for each specific account successfully renewed
during that quarter as listed in 6.1(P)(1) will be paid to the Seller. In the
final quarter ending September 30, 2005, a reconciliation will be done as
follows: 100% of the commission for the accounts lost during the year will be
deducted from the original $300,000.00 as will the payments made to the Seller
in the first three quarters. The remaining balance, if any, will be paid to the
Seller following the end of the fourth quarter. An account will be considered
lost if the agency looses commission in excess of 50% of the amount listed for
each individual account as shown in 6.1(P)(1).
(c) $100,000.00 payable only after Purchaser meets the following
conditions:
1. In the event Purchaser retains all 10 of Seller's largest accounts
as shown on Exhibit 6.1 (P)(1), during the first 12 months following the Closing
Date (as defined in Section 5.2 hereof), Seller shall be entitled to $50,000.00;
2. In the event Purchaser meets its stated budget for Seller's Agency,
for the first 12 months
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following the Closing Date, Seller shall be entitled to an additional
$50,000.00. See example at Exhibit 2.4 (c).
The purchase price shall be allocated as follows:
(a) Furniture and Fixtures: $ 25,000.00
(b) Insurance Expirations and Goodwill: $6,800,000.00
ARTICLE 3
SELLERS INSURANCE POLICY PREMIUMS
3.1 All Seller Agency premiums billed prior to Closing Date, and with renewal
dates prior to Closing Date, shall be the receivables of Seller with a
corresponding payable to the insurance companies for said renewals to be paid by
Seller. All Seller Agency premiums billed after Closing Date, or insurance with
renewal dates after Closing Date, shall be the receivables of ENB with a
corresponding payable to the insurance companies for said renewals to be paid by
ENB.
3.2 All insurance company direct billing commission income of Seller received on
or after October 1, 2004, irrespective of renewal date shall be the receivables
of ENB. Seller agrees to in no way attempt to accelerate the payment of any
commission income from normal business practices.
ARTICLE 4
CONTINGENCIES AND BUSINESS PRACTICES
4.1 All contingency or incentive income received prior to September 30, 2004,
shall be the receivable of Seller. All other contingency or incentive income
received after October 1, 2004, shall be the receivable of ENB, regardless of
when earned.
ARTICLE 5
CLOSING
5.1 Time of Closing. The time at which the sale, purchase, and delivery of the
Acquired Assets as contemplated by this Agreement shall be consummated is the
"Time of Closing," and such sale, purchase and delivery shall take place at a
location agreed to both by Shareholder and ENB, on the Closing Date hereinafter
defined.
5.2 Closing Date. The "Closing Date" shall be at ten o'clock in the forenoon
(10:00 a.m.) Eastern Standard Time or local time as then in effect on October 1,
2004, (or such other date as may be mutually agreed upon as the Closing Date).
In any case, such date so designated shall be the Closing Date for all purposes
of this Agreement unless a later date is fixed by mutual agreement; the last
date fixed by mutual agreement becoming effective under this Section 5.2 shall
constitute the Closing Date: and the transactions contemplated by this Agreement
shall become effective as of the close of business of Seller on the Closing
Date.
5.3 Transfer of Title. On the Closing Date, Xxxxxx will transfer the Acquired
Assets directly to ENB by bulk or individual assignments which, in the
reasonable opinion of ENB and its attorneys, shall be sufficient to vest in ENB
good and marketable title to those assets free and clear of all Encumbrances.
5.4 Risk of Loss. All risk of loss to the Acquired Assets shall remain in Seller
as of the close of business on Closing Date. In the event of any casualty or
loss to such assets, ENB may require Seller to assign by specific assignment to
ENB all of Seller's claims under any and all insurance policies relating to that
casualty or loss. At the Closing, Seller will assign to ENB, if required by ENB
to do so, the insurance policies which relate to the assets and business to be
transferred, including without limitation, all group major medical and other
employee benefit insurance, but excluding error and omission insurance which
Seller shall provide extension of coverage for at its discretion.
ARTICLE 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
SELLER AND SHAREHOLDER
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6.1 Representations and Warranties of Seller and the Shareholder. Seller and the
Shareholder, jointly and severally, represent and warrant to ENB as follows:
(A) Organization. Seller is duly organized, validly existing and in good
standing under the laws of the State of New York and has the corporate power to
execute, deliver and perform this Agreement and to consummate the Transaction
contemplated hereby.
(B) Authorization. The execution and delivery of this Agreement and the
consummation of the Transaction contemplated have been duly authorized by the
Board of Directors and Shareholder of Seller. Shareholder has the full right,
capacity, and power to enter into this Agreement and to consummate the
Transaction contemplated. This Agreement constitutes the legal, valid and
binding obligation of Seller and the Shareholder, enforceable against each of
them in accordance with its terms, except insofar as the enforcement thereof may
be limited by bankruptcy, insolvency or similar laws affecting the
enforceability of creditors' rights generally and subject to equitable
principles limiting the availability of equitable remedies. All persons who have
executed this Agreement on behalf of Seller have been duly authorized to do so.
(C) No third party consent required; no violation of other instruments. Neither
the execution nor the performance of this Agreement by Seller or the Shareholder
requires the consent of any third party or governmental agency which has not
been received, nor will it violate or result in a breach or constitute a default
under any provision of any certificate of incorporation, bylaw, indenture,
mortgage, lien, lease, agreement, contract, instrument, order, judgment, decree,
statute, ordinance, regulation or any other restriction of any kind or character
to which Seller or the Shareholder are subject or by which any of them is bound
except as otherwise set forth in Exhibit 6.1(C).
(D) Business of Seller. Seller is engaged in the business of selling insurance
products and services (the "Business"). To its best knowledge, Seller has all
governmental licenses and approvals necessary to carry on the Business as
currently conducted.
(E) Capitalization of Seller. Seller has an authorized capital stock consisting
of the following: 200 shares of Common Stock, no par value, with 10 shares no
par value issued and outstanding, all of which are owned by the Shareholder. All
of such shares of stock have been validly issued, fully paid, are
non-assessable, and were issued in compliance with applicable federal and state
securities laws. Seller has no outstanding subscriptions, options, rights,
warrants, convertible securities or other agreements or commitments to issue, or
contracts or any other agreements obligating Seller to issue, or to transfer
from treasury, any shares of its capital stock of any class or kind, or
securities convertible into such stock.
(F) Corporate Records. Seller has delivered or caused to be delivered to ENB
attorneys, true and correct copies to the date hereof of (i) the Certificate of
Incorporation and By-Laws of Seller and all amendments thereto, (ii) the minute
book of Seller, (iii) the stock record books of Seller, and (iv) the stock
certificate books of Seller. The minute book of Seller contains reliable and
accurate records and descriptions of all material, Shareholder, director and
executive committee meetings, and actions by written consent, if any. The stock
record books and stock certificate books of Seller are accurate and contain a
complete record of all issuances, transfers, and cancellations of capital stock
of Seller from the date of its incorporation to the date hereof. All documents
to be returned to Shareholder at closing.
(G) Financial Statements. Seller has delivered to ENB true and complete copies
of the financial statements of Seller for its calendar years ended December 31,
2001, December 31, 2002, December 31, 2003 and its internally prepared
statements for the period ended June 30, 2004 (the "Financial Statements"). The
Financial Statements have been compiled by Seller and fairly present the
financial condition and results of operation of Seller as of and for the periods
indicated. There are no liabilities or obligations of any nature (whether
absolute, approved, contingent, matured or unmatured or otherwise, including
without limitation, guarantees, indemnities, suretyships or similar obligations)
of Seller except (a) specifically disclosed in this Agreement or any schedule or
exhibit hereto specifically referring to such liabilities or (b) liabilities and
obligations reflected in the December 31, 2003 financial statements, or (c)
liabilities and obligations incurred since December 31, 2003, in the Ordinary
Course of Business.
(H) Absence of Certain Changes. Since December 31, 2003, there has not been any
circumstances which result in a Material Adverse Effect on the Business. Without
limiting the generality of the foregoing, since that date and except as set
forth on Exhibit 6.1(H):
(1) Seller has not sold, leased, transferred or assigned any of the Business
assets, tangible or intangible, other than for a fair consideration in the
Ordinary Course of Business.
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(2) Seller has not entered into any agreement, contract, lease or license (or
series of related agreements, contracts, leases and licenses) relating to the
Business and either involving more than $5,000 or outside of the Ordinary Course
of Business.
(3) No Person (including Seller) has accelerated, terminated, modified or
canceled any agreement, contract, lease or license (or series of related
agreement, contracts, leases and licenses) involving more than $5,000,
performance over a period in excess of ninety days, or outside the Ordinary
Course of Business to which Seller is a party or by which it is bound.
(4) Seller has not imposed any Encumbrance upon any of its assets, tangible or
intangible other than in the Ordinary Course of Business and not less than
$5,000 in the aggregate or other than advances on its bank line of credit.
(5) Seller has not made any capital expenditure (or series of related capital
expenditures) relating to the Business and either involving more than $5,000 or
outside the Ordinary Course of Business.
(6) Seller has not made any capital investment in, any loan to, or any
acquisition of the securities or assets of, any other Person (or series of
related capital investments, loans and acquisitions) relating to the Business
and either involving more than $5,000 or outside the Ordinary Course of
Business.
(7) Seller has not delayed or postponed the payment of accounts payable and
other Liabilities outside the Ordinary Course of Business.
(8) Seller has not canceled, compromised, waived or released any right or claim
(or series of related rights and claims) either involving more than $5,000 or
outside the Ordinary Course of Business.
(9) Seller has not experienced any material damage, destruction or loss (whether
or not covered by insurance) relating to the Business' assets or property.
(10) Seller has not entered into any employment contract or collective
bargaining agreement, written or oral, or modified the terms of any existing
such contract or agreement.
(11) Except as otherwise previously disclosed in writing by Seller to ENB,
Seller has not granted any increase in the base compensation of any of the
Business' employees outside the Ordinary Course of Business.
(12) Seller has not adopted, amended, modified or terminated any bonus,
profit-sharing, incentive, severance or other plan, contract of commitment for
the benefit of any of its directors, officers and employees (or taken any such
action with respect to any other Employee Benefit Plan).
(13) Seller has not made any other change in employment terms, including
compensation and benefits, for any of the Business employees outside the
Ordinary Course of Business.
(14) There has not been any other material occurrence, event, incident, action,
failure to act, or transaction outside the Ordinary Course of Business relating
to the Business.
(15) Seller has not been canceled, or has not received notification from any
insurance company of any intent to cancel Insurance Company Contracts, other
than those listed in Exhibit 6.1 (G).
(I) Condition of tangible assets. Seller owns or leases all buildings,
machinery, equipment and other tangible assets necessary for the conduct of the
Business as presently conducted. The buildings, machinery, equipment and other
tangible assets that Seller owns or leases in connection with the Business
which, at Closing, are transferred or assigned to ENB are free from material
defects (patent and, to the knowledge of Seller, latent), have been maintained
in accordance with normal industry practice, and are in good operating condition
and repair (subject to normal wear and tear) and are suitable for the purposes
for which they are presently used. The representation, however, that the
building, machinery and equipment are in good operating condition and repair
shall not survive Closing, except for matters which are raised in writing by ENB
at the time of Closing.
(J) Insurance. Exhibit 6.1(J) sets forth an accurate description of each
insurance policy (including policies providing property, casualty, liability,
and workers compensation coverage and bond and surety arrangements and
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key man insurances) to which Seller has been a party, a named insured, or
otherwise the beneficiary of coverage at any time within the past year. With
respect to each such insurance policy: (i) to Shareholder's knowledge, the
policy is legal, valid, binding, enforceable in accordance with its terms and in
full force and effect; (ii) Seller is not, and to the knowledge of Seller, no
other party to the policy is in breach or default (including with respect to the
payment of premiums or the giving of notices), and no event has occurred which,
with notice or the lapse of time, would constitute such a breach or default, or
permit termination, modification, or acceleration, under the policy; and (iv) no
party to the policy has repudiated any provision thereof. Seller has been
covered during the past 5 years by insurance in scope and amount customary and
reasonable for the businesses in which it has been engaged during the aforesaid
period. Exhibit 6.1(J) also lists and describes any self-insurance arrangements
affecting Seller or the Business.
(K) Judgments; Litigation. There is no (i) outstanding judgment, order, decree,
award, stipulation or injunction of any governmental entity or arbitrator
against or affecting Seller which could result in a Material Adverse Effect to
the Business, (ii) action pending against or affecting Seller or the properties,
assets or operations of Seller which could result in a Material Adverse Effect
to the Business, (iii) to the knowledge of Shareholder, action threatened
against or affecting Seller which could result in a Material Adverse Effect to
the Business. Exhibit 6.1(K) sets forth each and every judgment, order, decree,
injunction, ruling, charge, action, suit, proceeding, hearing or investigation
which is currently pending or has been issued since January 1, 1999, in which:
(i) injunctive relief has been sought or obtained against Seller; or (ii)
monetary damages have been sought or obtained against Seller in excess of
$10,000.
(L) Errors and omissions. To the knowledge of Seller, Seller has no Liability
(and, to the knowledge of Seller, there is no Basis for any present or future
action, suit, proceeding, hearing, investigation, charge, complaint, claim or
demand against Seller giving rise to any Liability) arising out of any action,
failure to act, omission, intentional act or negligence on the part of Seller or
its officers, directors, employees or agents, other than those listed in Exhibit
6.1 (L).
(M) Certain business relationships with ENB. Except as set forth in Exhibit
6.1(M), the Shareholder has not been involved in any business arrangement or
relationship with ENB within the past 3 years and the Shareholder does not own
any asset, tangible or intangible, used in the Business.
(N) Employee matters. Exhibit 6.1(N) sets forth the annual and monthly
compensation, (salary, hourly rate, bonus, commissions, profit sharing and other
benefits) payable to employees or classes of employees and brokers of Seller
with respect to the Business.
(O) Employee benefits.
(1) Exhibit 6.1(O) (1) lists each Employee Benefit Plan that Seller maintains or
to which Seller contributes with respect to the Business.
(2) Seller has ten (10) full-time employees.
(3) All contributions (including all employer contributions and employee salary
reduction contributions) which are due have been paid to each such Employee
Benefit Plan which is an Employee Pension Benefit Plan and all contributions for
any period ending on or before the Closing Date which are not yet due have been
paid to each such Employee Pension Benefit Plan or accrued in accordance with
the past custom and practice of Seller. All premiums or other payments for all
periods ending on or before the Closing Date have been paid with respect to each
such Employee Benefit Plan which is an Employee Welfare Benefit Plan or will be
accrued on the Financial Statements, and paid by Seller.
(4) Seller does not have a retirement plan available to employees.
(P) Customers and Insurance Accounts.
(1) Exhibit 6.1(P)(1) sets forth (i) the names of the Key Accounts of the
Business in terms of written insurance premiums over the twelve months ended
August 31, 2004, and (ii) the aggregate premiums paid by each customer during
such period. Seller has not received any notice nor has any knowledge that any
such customer intends to terminate or materially reduce its insurance business
with Seller and no such customer has terminated or materially reduced its
business with Seller in the past twelve months.
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(2) The Seller has no agreement, arrangement or understanding with respect to
any customer or potential customer of the Business providing for sales
commissions, price concessions or rebates, nor is there any agreement,
arrangement or understanding with respect to any Insurance Accounts which is not
fully disclosed in this Agreement and the Exhibit to this Agreement, other than
listed in Exhibit 6.1 (p) 2.
(3) The books and records of Seller relating to the Insurance Accounts are true
and complete in all material respects.
(Q) Title to and Condition of the Acquired Assets. Seller has good and
marketable title to all of the Acquired Assets, subject to no pledge, lien,
security interest, lease, charge or encumbrance whatsoever other than
Encumbrances consented to in writing by ENB and as set forth in Exhibit 6.1Q
("Permitted Encumbrances") and liens that will be discharged at or before the
Closing Date. Seller will have and convey to Buyer on the Closing Date lawful
possession and control of, and good and marketable clear title to, all of the
Acquired Assets.
(R) Sufficiency of Assets. The Acquired Assets constitute all of the
assets of Seller used in connection with the Business and are sufficient for the
conduct of the Business as it is currently being conducted.
(S) Compliance with Laws. Seller has complied in all material respects
with, is not in any material violation of, and has not received any notices of
violation with respect to any foreign, federal, state or local statute, law,
regulation or ordinance.
6.2 Additional Covenants and Agreements of Seller and Shareholder.
(A) Corporate Approval. The undersigned Shareholder represents to ENB that the
Board of Directors of Seller and the Shareholder in his capacity as sole
Shareholder of Seller has executed a consent to the execution by Seller of this
Agreement and that no further action by Seller is required to authorize the
execution and delivery of this Agreement by Seller. Shareholder covenants to and
with ENB that he will not withdraw or modify that consent in any way without
ENB's consent.
(B) Change of Name. Among the assets being acquired by ENB is the
corporate name of Seller. Accordingly, Seller will immediately upon the Closing
cause its certificate of incorporation to be amended and take such other steps
as may reasonably be required to change its corporate name to a name, acceptable
to ENB, which will not conflict with or be similar to its present name. Seller
further agrees to cooperate with ENB to enable ENB to use the name "Xxxxxx &
Company" in Western New York in connection with any business activity, which may
be conducted, by ENB or any of its subsidiaries or divisions.
(C) Conduct of Business. Prior to the Closing Date, Seller shall
conduct its business only in the Ordinary Course of Business, except as
otherwise permitted by this Agreement or consented to by ENB in writing. Without
limiting the generality of the foregoing covenant, Seller shall (a) maintain its
certificate of incorporation and by-laws in their respective forms on the date
of this Agreement, (b) at all times keep full and complete books and records;
(c) maintain in full force and effect the insurance policies heretofore
maintained by it (or policies providing substantially the same coverage); (d)
preserve its property in good condition; (e) preserve its business organization
intact and preserve for ENB the goodwill of customers, suppliers and others
having business relationships with Seller; (f) conduct its business in
substantial compliance with all laws, regulations and ordinances applicable to
its business; (g) promptly advise ENB in writing of any material adverse change
in the business, assets or prospects of Seller; and (h) furnish to ENB all
interim financial statements of Seller when they become available to any officer
of Seller.
(D) Negative Covenants. Prior to the Closing Date, Seller will not
except as otherwise permitted by this Agreement or consented to by ENB in
writing, (a) commit to provide any services to any customer other than in the
Ordinary Course of its Business; (b) increase its indebtedness for borrowed
money except in the Ordinary Course of its Business; (c) except for agreements
disclosed in this Agreement and the Exhibits to this Agreement, subject its
assets to any Encumbrance;(d) increase or decrease the rate of compensation of ,
except for annual increases in the normal course of business, or pay any unusual
compensation to any officer or employee, or enter into any agreement to increase
or decrease the rate of compensation of or to pay any unusual compensation to
any officer or employee (other than annual bonuses consistent with prior
practice);(e) make any representation to anyone indicating any intention of ENB
to retain, institute, or provide any Employee Benefit Plans, or represent in any
manner that any officer or employee of Seller will be employed by ENB after the
Closing; (f) enter into any contract or commitment of a type required to be
disclosed on any exhibit to this Agreement; or (g) solicit sales from ENB
customers.
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(E) Access. Between the date hereof and the Closing Date, Seller shall
give to ENB and its designees full access, during normal business hours and upon
reasonable notice, in such a manner as not to disrupt normal business
activities, to Seller's offices at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx and to
Seller's material contracts and books of accounts and records of Seller
reasonably relevant to an evaluation of the Business.
(F) Best Efforts. Seller, the Shareholder, and ENB shall use their best efforts,
and shall cooperate with and assist each other in their efforts, to obtain such
consents and approvals of third parties as may be necessary to transfer the
Acquired Assets to ENB and to consummate the Transaction. If the assignment of
any such contract or commitment included in the Acquired Assets should
constitute a breach thereof, and consent to such transfer cannot be obtained,
this Agreement shall not constitute an agreement to assign the same, but Seller
will cooperate with ENB, at the cost and expense of Seller, in any reasonable
arrangement designed to provide for ENB the benefits of that contract or
commitment, including enforcement for the benefit of ENB of any and all rights
of Seller against any other party thereto arising out of the breach or
cancellation of that contract or commitment by any other party thereto.
(G) Brokers or Finders. Each party agrees to hold the other harmless
and to indemnify it against the claims of any persons or entities claiming to be
entitled to any finder's fee, advisory fee or like payment from such other party
based upon actions of the indemnifying party in connection with the Transaction.
(H) Covenants Not to Compete. Xxxxx further agrees that he will deliver
to ENB at the Closing a Covenant Not To Compete, substantially in the form of
Appendix "3" hereto.
(I) Real Estate Matters. At the Closing, UDC will execute a new five (5) year
lease running to ENB and covering premises currently occupied by Seller, and
located at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx, in a form attached hereto at an
annual rent of ENB and shall have the option of renewing the Lease for two (2)
additional five-year terms at an annual rent to be negotiated between the
parties. Xxxxx National Bank shall also have the option of leasing additional
space in said building to be used as a bank branch pursuant to the terms set
forth in the Lease between UDC and ENB.
(J) Press Release. Except as may otherwise be required by ENB or
regulation, Seller and ENB shall not issue any press release about the
Transaction until the form and content of such release has been approved by
Shareholder and ENB.
Exclusive Dealing. Until this Agreement shall be consummated or terminated in
accordance with its terms, neither Seller nor the Shareholder shall take, or
permit any other Person acting on its or his behalf, to take or refrain from
taking any action directly or indirectly, to encourage, initiate or engage in
discussions or negotiations with, or provide information to, any person or group
other than ENB with respect to any acquisition of the stock of Seller or any
acquisition of substantial assets of or merger with Seller other than
disclosures consented to in writing by ENB. Seller and Shareholder shall
promptly notify ENB of any solicitation or inquiry, which any of them receive
with respect to any such matter.
Xxxxx will use his best efforts to cooperate with ENB in securing an Employment
Agreement with Xxxxx Xxxxxxxxxx, and Brokerage Agreement with Xxxxxx Xxxxx and
Xxxxx Insurance Agency whose services are an integral part of Seller's Agency.
This purchase is contingent upon the execution of said Employment Agreement and
Brokerage Agreement under terms agreeable to ENB.
As an inducement for ENB to enter into this Agreement, Seller gave ENB an
"Xxxxxx & Company, Inc. Presentation Binder," a copy of which is attached hereto
at Exhibit 6.2 (L). All of the information contained therein is true, and may be
relied upon by ENB as part of its' due diligence in reaching this Agreement.
Shareholder has agreed to act in consulting capacity for ENB during the
transitional period of one year after the Closing Date and to accompany an ENB
employee to any "Key" accounts, as ENB may, in its' sole judgment, finds
reasonable and prudent.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF PURCHASER
ENB represents and warrants to Seller as follows:
7.1 Organization. ENB is duly organized, validly existing and in good
standing under the laws of the
46
39
State of New York and has the corporate power to execute, deliver and perform
this Agreement.
7.2 Authorization. The execution and delivery of this Agreement and the
consummation of the Transaction contemplated have been duly authorized by the
Board of Directors of ENB and its shareholders. This Agreement constitutes the
legal, valid and binding obligation ENB, enforceable against it in accordance
with its terms, except insofar as the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and subject to equitable principles limiting the availability
of equitable remedies. All persons who have executed this Agreement on behalf of
ENB have been duly authorized to do so.
7.3 No Third Party Consent Required; No Violation of other Instruments. Neither
the execution nor the performance of this Agreement by ENB requires the consent
of any third party or governmental agency which has not been received, nor will
it violate or result in a breach or constitute a default under any provision of
any certificate of incorporation, bylaw, indenture, mortgage, lien, lease,
agreement, contract, instrument, order, judgment, decree, statute, ordinance,
regulation or any other restriction of any kind or character to which ENB is
subject or by which it is bound.
7.4 Full Disclosure. No written statement of information provided or to be
provided by ENB to Seller and the Shareholder pursuant to this Agreement
(including, but not limited to, the representations and warranties contained in
this Section contains, or will contain any untrue statement of a material fact
or omits, or will omit, to state any material fact necessary in order to make
such statements and information not misleading.
7.5 ENB has corporate power and authority to execute, deliver and perform this
Agreement, and all corporate action of ENB necessary for such execution,
delivery and performance will have been taken. No consent of any party to any
contract or agreement to which ENB, at the Closing Date, will be a party or to
which any of its property is subject is required for the execution, delivery or
performance of this Agreement. No consent of any federal, state, county,
municipal or other governmental authority will be required for the performance
of this Agreement by ENB.
ARTICLE 8
CONDITIONS TO THE OBLIGATION OF SELLER AND SHAREHOLDER TO CLOSE
The obligation of Seller and Shareholder to consummate the transactions herein
contemplated is, at his option, subject to the satisfaction or waiver of the
following further conditions:
8.1 Documentation. ENB shall have furnished the Seller with:
(A) ENB will assume in writing all telephone advertising for which Seller has
contracted and will release and absolve Seller from any and all responsibilities
therefore as at the Closing Date.
(B) Lease Agreement executed by ENB to Xxxxx for the real property commonly
known as 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000.
(C) An Employment Agreement executed by Xxxxx Xxxxxxxxxx pursuant to the terms
and in the form to be agreed to by Xxxxx and ENB.
(E) The Non-Compete Agreement executed by Xxxxx to commence on termination of
Seller's employment as of the Closing Date.
(F) A Lead Generation Agreement in a form to be agreed to by Xxxxx and ENB, to
be executed by Xxxxx.
(G) Brokerage Agreements with ENB executed by Xxxxxx Xxxxx and Xxxxx Insurance
Agency.
(H) Non-Competition Agreement by Xxxxx.
(I) Consulting Agreement executed by Shareholder.
8.2 Representations and Warranties True and Correct. All of the representations
and warranties of ENB contained in this Agreement shall be true in all material
respects as of the Closing Date as though such representations and warranties
were then made in exactly the same language and ENB shall have performed all
material obligations and complied with the material covenants required by this
Agreement to be performed and complied with by it prior to the Closing Date. On
the Closing Date, the Seller shall have received a certificate, dated the
Closing Date, executed by ENB, certifying in such detail as the Seller may
request as to the accuracy of such
40
representations and warranties, the fulfillment of such obligations and the
compliance with such covenants as of the Closing Date.
8.3 Executed Contracts. All contracts contemplated by this Agreement will have
been duly and properly executed.
ARTICLE 9
CONDITIONS TO THE OBLIGATION OF ENB TO CLOSE
The obligation of ENB to consummate the transaction herein contemplated is, at
its option, subject to the satisfaction of the following conditions:
9.1 Seller and/or Shareholder shall have furnished to ENB:
(A) An Assignment of the Seller's name "Xxxxxx & Company." to ENB, together with
a Certificate of Change of Name by Seller;
(B) Delivery of Non-Competition Agreement by Xxxxx;
(C) A xxxx of sale for all of the Acquired Assets that are tangible personal
property executed by Seller.
(D) Lease in a form and with terms acceptable to ENB for offices located at 000
Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx.
The delivery of the executed Consulting Agreement from Xxxxx Xxxxxx.
The receipt by Seller of all required consents identified on Exhibit 6.1(C).
The receipt of a UCC search and evidence of all necessary terminations; and
The execution and delivery of the Employment Agreement by Xxxxx Xxxxxxxxxx, the
Brokerage Agreements by Xxxxxx Xxxxx and the Xxxxx Insurance Agency, and the
Lead Generation Agreement by Xxxxx.
All of the representations and warranties of the Seller and Shareholder
contained in this Agreement shall be true and correct in all material respects
as of the Closing Date as though such representations and warranties were then
made in exactly the same language and the Seller and Shareholder shall have
performed all material obligations and complied with the material covenants
required this Agreement to be performed and complied with by them prior to the
Closing Date. On the Closing Date, ENB shall have received a certificate, dated
the Closing Date, executed by Shareholder certifying in such detail as ENB may
request as to the accuracy of such representations and warranties specifically
made by such parties, the fulfillment of the obligations of each such party, and
the compliance with such covenants as required by each such party as of the
Closing Date.
The receipt by Xxxxx Bancorp, Inc. of proceeds of at least Eleven Million
Dollars ($11,000,000.00) from the issuance and sale by its affiliate of trust
preferred securities, such sale to be upon terms and conditions acceptable to
Parent in its sole discretion, and which conditions shall include the
qualifications of such securities as Tier 1 capital for regulatory purposes.
ARTICLE 10
OTHER ASPECTS OF CLOSING
10.1 This Agreement may be terminated and the transaction hereby contemplated
abandoned at any time prior to the Closing Date:
(A) By mutual agreement of Shareholder and ENB;
(B) By either Shareholder or ENB if there has been a material misrepresentation
or breach of warranty on the part of the other parties hereto in the
representations and warranties set forth in this Agreement; or
(C) The inability of Seller to provide good and marketable title to the Acquired
Assets being transferred to ENB, which shall be free and clear of any and all
liens, charges, and encumbrances of any kind on the Closing Date;
(D) By either Shareholder or ENB if any of the conditions to the obligations to
close as set forth in Article 9 of this Agreement have not been met;
10.2 In the event that this Agreement is terminated as herein provided and the
transaction is abandoned, this Agreement shall forthwith become wholly null and
void and no further force and effect, and there shall be no liability on the
part of either Shareholder or ENB, and ENB will execute a confidentiality
agreement in a form acceptable to both parties.
ARTICLE 11
INDEMNIFICATION
11.1 Indemnification by Seller and Shareholder. Seller and Shareholder
hereby jointly and severally covenant and agree to defend, indemnify and hold
harmless Purchaser, its officers, directors, shareholders, agents and
representatives, from and against any and all losses, costs, expenses,
liabilities, claims, demands, judgments and settlements of every nature that are
actually incurred by Purchaser, including without limitation the cost of
reasonable attorneys fees, which arise out of the breach by Seller or
Shareholder of any representation, warranty or covenant made by Seller and
Shareholder pursuant to this Agreement.
11.2 Indemnification by Purchaser. Purchaser hereby agrees to defend,
indemnify and hold harmless Seller, its officers, directors, shareholders,
agents and representatives, from and against any and all losses, costs,
expenses, liabilities, claims, demands, judgments and settlements of every
nature that are actually incurred by Seller, including without limitation
reasonable attorneys fees, which arise out of (i) the breach of Purchaser of any
representation, warranty or covenant made by Purchaser pursuant to this
Agreement, (ii) the operation of the Business or the Acquired Assets by reason
of actions taken (or not taken) by Purchaser after the date of this Agreement,
or (iii) any and all taxes, including penalties and interest, relating to the
operation of the Business or in respect of the Acquired Assets for all periods
after the Closing Date.
ARTICLE 12
MISCELLANEOUS
12.1 Any notice, request, instruction or other communication to be given
hereunder by any party hereto to the other shall be in writing and shall be
delivered personally or sent by registered or certified mail; postage per-paid,
if to Xxxxx X. Xxxxxx, addressed to him at:
Xxxxx X. Xxxxxx
00 Xxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
0000 Xxxx Xxxxxx, Xxxxx 0
Xxxxxxxxxxxxx, Xxx Xxxx 00000
and if to ENB, addressed to it at:
Attn: Xxxxxx Xxxxxx, Jr.
00 Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx Xxxxxxxx, Esq.
Xxxxxx Beach llp
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxx Xxxx 00000
or to such other persons or addresses that either party may designate by written
notice to the other.
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12.2 Each party may by written instrument extend the time for performance of any
of the obligations or other acts of the other party hereto; and (I) waive any
inaccuracies of such other party in the representations and warranties contained
in this Agreement; (II) waive compliance with any of the covenants of such other
party contained in this Agreement; and (III) waive such other party's
performance of any of the obligations set forth in this Agreement. Any agreement
on the part of either party hereto for any such extension or waiver shall be
validly and sufficiently authorized for the purposes of this Agreement, if as to
Seller, it is authorized by Shareholder.
12.3 Each party hereto shall separately bear its expenses incurred in connection
with this Agreement and in connection with all things required to be done by
each hereunder.
12.4 This Agreement may be amended at any time prior to the Closing Date by a
written instrument executed by Shareholder and ENB.
12.5 The respective representations, warranties, covenants and agreements of the
parties hereto herein or in any instrument delivered hereunder shall survive the
Closing Date and remain in effect for one year after the Closing of the
transaction contemplated by this Agreement.
12.6 This Agreement contains the entire understanding between the parties hereto
relating to the subject matter contained herein, and any and all oral agreements
before made between the parties hereto are merged herein. This Agreement cannot
be changed or terminated orally, and may only be amended, supplemented or
otherwise modified in writing by written agreement executed by the parties
hereto.
12.7 This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
12.8 The headings of the several Articles herein are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
12.9 For the convenience of the parties hereto and to facilitate the execution
of this Agreement, it may be executed in one or more counterparts, each of which
shall be deemed an original but all of which shall together constitute one and
the same instrument.
12.10 This Agreement shall be binding upon each of the parties hereto and their
respective heirs, executors, administrators, successors and assigns.
12.11 The parties shall execute all documents reasonably necessary to carry out
the intent of this Agreement and effect the transaction contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representative as of the day and year first above
written.
XXXXXX & COMPANY, INC. ENB INSURANCE AGENCY, INC.
By: /s/Xxxxx X. Xxxxxx By: /s/Xxxxxx Xxxxxx, Jr.
--------------------------------- ------------------------------
XXXXX X. XXXXXX, Individually and XXXXXX XXXXXX, JR., PRESIDENT
as President and Sole
Stockholder of XXXXXX & COMPANY, INC.
XXXXXX DEVELOPMENT
COMPANY, LLC
/s//Xxxxx X. Xxxxxx
-----------------------------------
XXXXX X. XXXXXX
