EXHIBIT 10.9
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ASSET PURCHASE AGREEMENT
by and among
ACCEPTANCE INSURANCE COMPANIES INC.
ACCEPTANCE INSURANCE COMPANY
AMERICAN GROWERS INSURANCE COMPANY
AMERICAN AGRISURANCE, INC.
and
GORAN CAPITAL INC.
XXXXXX INTERNATIONAL GROUP, INC.
IGF HOLDINGS, INC.
IGF INSURANCE COMPANY
Dated May 23, 2001
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
TRANSFER AND ACQUISITION OF ASSETS
SECTION 2.01. TRANSFER AND ACQUISITION......................................18
SECTION 2.02. PAYMENTS AND REIMBURSEMENTS...................................19
SECTION 2.03. PLACE AND DATE OF CLOSING.....................................25
SECTION 2.04. TRANSACTIONS TO BE EFFECTED AT THE CLOSING....................25
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS AND SHAREHOLDERS
SECTION 3.01. ORGANIZATION, STANDING AND AUTHORITY..........................26
SECTION 3.02. AUTHORIZATION.................................................26
SECTION 3.03. NO CONFLICT OR VIOLATION, ETC.................................27
SECTION 3.04. NO UNDISCLOSED LIABILITIES....................................28
SECTION 3.05. CONTRACTS.....................................................28
SECTION 3.06. TITLE TO ASSETS...............................................29
SECTION 3.07. LITIGATION; ORDERS............................................29
SECTION 3.08. COMPLIANCE WITH LAWS..........................................29
SECTION 3.09. EMPLOYEE MATTERS..............................................30
SECTION 3.10. BROKERS.......................................................31
SECTION 3.11. REINSURANCE CONTRACTS.........................................31
SECTION 3.12. COMPLIANCE DISPUTES...........................................31
SECTION 3.13. COMPUTER SOFTWARE.............................................32
SECTION 3.14. DATABASE......................................................32
SECTION 3.15. TAXES.........................................................32
SECTION 3.16. CONDITION OF TANGIBLE ASSETS..................................33
SECTION 3.17. INTELLECTUAL PROPERTY, COMPUTER SOFTWARE AND DATABASE.........33
SECTION 3.18. INSURANCE AGENTS..............................................34
SECTION 3.19. LICENSES......................................................35
SECTION 3.20. FINANCIAL STATEMENTS..........................................35
SECTION 3.21. DISCLOSURE....................................................36
SECTION 3.22. ABSENCE OF CERTAIN CHANGES....................................37
SECTION 3.23. INSURANCE CONTRACTS...........................................37
SECTION 3.24. OFFICE PREMISES...............................................38
SECTION 3.25. SOLVENCY......................................................39
SECTION 3.26. RESERVES......................................................39
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
SECTION 4.01. ORGANIZATION, STANDING AND AUTHORITY..........................40
SECTION 4.02. AUTHORIZATION.................................................40
SECTION 4.03. NO CONFLICT OR VIOLATION, ETC.................................41
SECTION 4.04. BROKERS.......................................................42
SECTION 4.05. GAAP FINANCIAL STATEMENTS.....................................42
SECTION 4.06. DISCLOSURE....................................................43
SECTION 4.07. ABSENCE OF CERTAIN CHANGES....................................43
ARTICLE V
OTHER AGREEMENTS
SECTION 5.01. CONDUCT OF BUSINESS...........................................43
SECTION 5.02. ACCESS TO INFORMATION; ASSISTANCE; CONFIDENTIALITY; RENEWAL
BUSINESS......................................................46
SECTION 5.03. COMMERCIALLY REASONABLE EFFORTS...............................47
SECTION 5.04. CONSENTS, APPROVALS AND FILINGS...............................47
SECTION 5.05. NOTIFICATIONS.................................................49
SECTION 5.06. FURTHER ASSURANCES............................................49
SECTION 5.07. EXPENSES......................................................50
SECTION 5.08. EMPLOYEES AND EMPLOYEE BENEFITS...............................50
SECTION 5.09. DISCLOSURE SCHEDULES..........................................52
SECTION 5.10. NOTICE OF BREACH..............................................52
SECTION 5.11. UPDATE OF DISCLOSURE SCHEDULES................................52
SECTION 5.12. REAL ESTATE LEASES............................................53
SECTION 5.13. REINSURANCE OBLIGATIONS AND NOTICES OF CANCELLATION...........53
SECTION 5.14. COMPUTER SOFTWARE.............................................54
SECTION 5.15. NO SOLICITATION...............................................54
SECTION 5.16. POST-CLOSING ACCESS TO BOOKS AND RECORDS AND USE OF GENERAL
LEDGER INFORMATION............................................55
SECTION 5.17. EXCLUSIVE LICENSE AGREEMENT...................................56
SECTION 5.18. DEVELOPMENTAL PRODUCTS........................................56
SECTION 5.19. NONCOMPETITION AGREEMENTS.....................................57
SECTION 5.20. WAIVER OF RIGHT OF FIRST REFUSAL..............................57
SECTION 5.21. IGF'S CONTINUED ACCESS TO KEY EMPLOYEES.......................58
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER
SECTION 6.01. OTHER AGREEMENTS..............................................58
SECTION 6.02. OTHER DOCUMENTS...............................................59
SECTION 6.03. REPRESENTATIONS AND COVENANTS.................................59
SECTION 6.04. NO MATERIAL ADVERSE CHANGE....................................60
SECTION 6.05. SECRETARY'S CERTIFICATE.......................................60
SECTION 6.06. ..............................................................60
SECTION 6.07. Consents and Approvals........................................63
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SECTION 6.08. NO INJUNCTIONS OR RESTRAINTS..................................63
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLERS
SECTION 7.01. REPRESENTATIONS AND COVENANTS.................................64
SECTION 7.02. NO MATERIAL ADVERSE CHANGE....................................65
SECTION 7.03. SECRETARY'S CERTIFICATE.......................................65
SECTION 7.04. LEGAL OPINION.................................................65
SECTION 7.05. OTHER DOCUMENTS...............................................67
SECTION 7.06. OTHER AGREEMENTS..............................................67
SECTION 7.07. CONSENTS AND APPROVALS........................................67
SECTION 7.08. NO INJUNCTIONS OR RESTRAINTS..................................68
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. GENERAL INDEMNIFICATION OBLIGATION OF SELLERS.................69
SECTION 9.02. GENERAL INDEMNIFICATION OBLIGATION OF PURCHASER...............70
SECTION 9.03. METHOD OF ASSERTING CLAIMS, ETC...............................71
SECTION 9.04. PAYMENT ......................................................73
SECTION 9.05. LIMITATIONS ON INDEMNIFICATION................................74
SECTION 9.06. JOINT LIABILITY OF SHAREHOLDERS IN RESPECT OF DIVIDENDS.......75
ARTICLE X
TERMINATION PRIOR TO CLOSING
SECTION 10.01. TERMINATION...................................................76
SECTION 10.02. EFFECT OF TERMINATION.........................................77
ARTICLE XI
GENERAL PROVISIONS
SECTION 11.01. PUBLICITY.....................................................77
SECTION 11.02. DOLLAR REFERENCES.............................................78
SECTION 11.03. NOTICES.......................................................78
SECTION 11.04. ENTIRE AGREEMENT..............................................78
SECTION 11.05. WAIVERS AND AMENDMENTS........................................79
SECTION 11.06. GOVERNING LAW; CHOICE OF FORUM................................79
SECTION 11.07. BINDING EFFECT; ASSIGNMENT....................................80
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SECTION 11.08. INTERPRETATION................................................80
SECTION 11.09. NO THIRD-PARTY BENEFICIARIES..................................81
SECTION 11.10. COUNTERPARTS..................................................81
SECTION 11.11. EXHIBITS AND SCHEDULES........................................81
SECTION 11.12. HEADINGS......................................................82
Exhibit A Aquaculture SRA Assignment and Assumption Agreement
Exhibit B Assignment and Assumption Agreement
Exhibit C Xxxx of Sale and General Assignment
Exhibit D Acceptance/Granite Re Retrocession Agreement
Exhibit E IGF/Acceptance Retrocession Agreement
Exhibit F Granite Re Treaty Reinsurance Contract
Exhibit G License Agreement
Exhibit H Management and Services Agreement
Exhibit I Consulting and Noncompetition Agreement
Exhibit J Noncompetition Agreement
Exhibit K Retention and Noncompetition Agreement
Exhibit L IGF/Acceptance Quota Share Reinsurance Agreement
Exhibit M SRA Assignment and Assumption Agreement
Exhibit N Real Estate Leases
Schedule 1.01 Excluded Assets
Schedule 3.03 Conflicts or Violations
Schedule 3.04 Liabilities
Schedule 3.05A Insurance Contracts
Schedule 3.05B Other Assigned and Assumed Contracts
Schedule 3.06 Liens
Schedule 3.07 Litigation
Schedule 3.08 Compliance with Laws
Schedule 3.11 Reinsurance Contracts
Schedule 3.12A List of Requests for Additional Information by RMA
Schedule 3.12B List of Market Conduct Enforcement or Market Conduct
Regulations Communication
Schedule 3.13 Computer Software Programs
Schedule 3.16 Furniture, Fixtures and Equipment
Schedule 3.18 Insurance Agents
Schedule 3.19 List of Licenses, Permits, Authorizations and Consents
Schedule 3.20(a) Sellers GAAP Statements
Schedule 3.20(b) SAP Statements
Schedule 3.22 Changes
Schedule 3.24 Office Locations
Schedule 4.03 Conflicts or Violations
Schedule 4.05 Purchaser GAAP Statements
Schedule 4.07 Changes
Schedule 5.08 List of Employees and Employee Benefits
Schedule 5.19(b) Purchasers List of Business Employees
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated May 23, 2001, is
entered into by and among ACCEPTANCE INSURANCE COMPANIES INC., a Delaware
corporation ("AICI") for itself and on behalf of ACCEPTANCE INSURANCE COMPANY, a
Nebraska insurance corporation ("AIC"), AMERICAN GROWERS INSURANCE COMPANY, a
Nebraska insurance corporation ("AGIC") and AMERICAN AGRISURANCE, INC., an Iowa
corporation ("AMAG") (AICI, AIC, AGIC and AMAG are referred to herein
collectively as "Purchaser"), and GORAN CAPITAL INC., a Canadian corporation
("Goran"), XXXXXX INTERNATIONAL GROUP, INC., an Indiana corporation ("SIG"), IGF
HOLDINGS, INC., an Indiana corporation ("IGFH") and IGF INSURANCE COMPANY, an
Indiana insurance corporation ("IGF") (Goran and SIG are referred to
collectively in this Agreement as "Shareholders," and IGFH and IGF are referred
to collectively in this Agreement as "Sellers").
WHEREAS, Sellers are entities engaged in the business of providing various
types of property and casualty insurance and other services; and
WHEREAS, upon the terms and subject to the conditions of this Agreement,
Sellers desire to sell, and Purchaser desires to acquire certain assets
associated with a portion of the business of Sellers, and in connection
therewith Purchaser is willing to assume those certain liabilities of Sellers
which are identified specifically in this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration the receipt and sufficiency of which Purchaser and Sellers hereby
acknowledge, Purchaser and Sellers hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement the following terms shall have the
respective meanings set forth below:
"A&O" means all administrative and operating reimbursement, and all loss
adjustment expense reimbursement, associated with premiums on MPCI policies
payable by the FCIC with respect to the Business.
"ACCEPTANCE/GRANITE RE RETROCESSION AGREEMENT" means the
Acceptance/Granite Re Retrocession Agreement in the form of Exhibit D hereto.
"ACCOUNTING PRINCIPLES" means United States generally accepted accounting
principles consistently applied.
"ACTION" shall mean any action, suit, arbitration, legal or administrative
proceeding pending or, to the knowledge of Sellers contemplated or threatened,
by or against or affecting any of Sellers and related to the Business or the
Transferred Assets which, individually or in the aggregate, could reasonably be
expected to have a Sellers Material Adverse Effect if decided adversely to any
of Sellers, including but not limited to the Actions identified in Schedule
3.07.
"ACTUAL 2001 MPCI AGENT COMMISSION" means the aggregate of Purchaser's (i)
reimbursement to Sellers of all Advance MPCI Commission, (ii) commission
payments to Agents with respect to Insurance Contracts and pursuant to an
Assigned and Assumed Contract listed on Schedule 3.05B and (iii) actual costs
for travel, gifts, awards and other performance incentives Purchaser provides to
Agents, based on or resulting from written representations or
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agreements of Sellers or Shareholders with such Agents made prior to Closing,
and on the basis of actual Fall Premium and actual Spring Premium written by
Agents, including incentive commission payable in 2002 arising from Agents'
written commission schedules, amendments and addendums to such commission
schedules, advance commission agreements, whether or not such advances are
earned; PROVIDED, HOWEVER, that no amount paid to any Agent shall be included in
more than one of clause (i), (ii) and (iii) above.
"ADMINISTRATIVE FEES" means those per policy administrative fees payable
by policyholders for MPCI Policies and required to be remitted to FCIC.
"ADVANCE MPCI COMMISSION" shall mean that portion of the Actual 2001 MPCI
Agent Commission actually paid to Agents by Sellers before Closing pursuant to
Assigned and Assumed Contracts listed on Schedule 3.05B.
"ADVANCE OTHER COMMISSION" means that portion of commissions with respect
to Crop Hail Policies actually paid to Agents by Sellers before Closing pursuant
to an Assigned and Assumed Contract listed on Schedule 3.05B.
"AFFILIATE" means, with respect to any Person, at the time in question,
any other Person controlling, controlled by or under common control with such
Person. For purposes of the foregoing, "control," including the terms
"controlling," "controlled by" and "under common control with," means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
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"AGENT" or "AGENTS" means any or all Persons properly appointed with
respect to the Insurance Contracts, and required to be licensed by a
Governmental Entity, who submitted to IGF on behalf of an agricultural producer
applications for insurance written as part of the Business at any time after
January 1, 1996; provided, however, that the use of the capitalized term "Agent"
in this Agreement is limited to this meaning only, and does not mean or refer to
"agent" in any other sense.
"AGENT LOANS" means IGF's loans to Agents that are evidenced by notes or
loan agreements, to the extent that principal or interest due to Sellers in
respect thereof is unpaid on the Closing Date; provided, however, that Agent
Loans shall not include those loans that Purchaser, in its sole discretion,
elects not to purchase on the Closing Date.
"ANCILLARY AGREEMENTS" means, collectively, the Crop Hail Retrocession
Agreement, the Crop Hail Quota Share Agreement, the Acceptance/Granite Re
Retrocession Agreement, the Aquaculture Assignment and Assumption Agreement, the
SRA Assignment and Assumption Agreement, the Xxxx of Sale and General
Assignment, the Assignment and Assumption Agreement, the Granite Re Treaty, the
Noncompetition Agreement, the Retention and Noncompetition Agreements, the
leases and lease assignments to be entered into pursuant to Section 5.12 of this
Agreement, the License Agreement and the Management and Services Agreement.
AQUACULTURE SRA ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Aquaculture
SRA Assignment and Assumption Agreement in the form of Exhibit A hereto.
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"ASSIGNABLE LICENSED SOFTWARE" means the Licensed Software as to which (a)
no consent to the assignment thereof is required, or (b) consent to the
assignment thereof has been obtained on or prior to the Closing Date.
"ASSIGNED AND ASSUMED CONTRACTS" means all contracts and other agreements
(i) listed on Schedule 3.05A or Schedule 3.05B designated as Assigned and
Assumed Contracts; (ii) identified in the Assignment and Assumption Agreement
and (iii) other contracts that, although they relate to Transferred Assets and
are therefore Assigned and Assumed Contracts, are not required to be
individually scheduled on Schedule 3.05B because they relate to the purchase or
lease of equipment, materials, supplies or other real or personal property
involving amounts not in excess of $10,000, or they relate to the performance of
services over a period of not more than thirty days and involving an amount not
in excess of $10,000.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment and Assumption
Agreement in the form of Exhibit B hereto.
"ASSUMED EMPLOYEE LIABILITIES" means the obligations of Purchasers created
by applicable law to provide any benefit to any Transferred Employees.
"ASSUMED LIABILITIES" means only those liabilities and obligations of
Sellers with respect to (i) the Insurance Contracts, (ii) the Assigned and
Assumed Contracts, (iii) agent commissions associated with 2001 MPCI and Crop
Hail Policies, including Actual 2001 MPCI Agent Commission, (iv) the leases and
lease assignments to be entered into pursuant to Section 5.12 hereof, to the
extent the same are unpaid or unperformed on or after the Closing Date, (v) the
SRA Assignment and Assumption Agreement, (vi) the Assignment and Assumption
Agreement, (vii) the Aquaculture SRA Assignment and Assumption Agreement and
(viii) the Crop Hail
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Retrocession Agreement. Without limiting the generality of the preceding
sentence, and notwithstanding anything in this Agreement or any of the Ancillary
Agreements to the contrary, the Assumed Liabilities shall not include any
Excluded Liability.
"BENEFIT PLANS" shall mean all plans, funds, programs, policies,
arrangements, practices, customs and understandings providing benefits of
economic value to any Business Employee, or present beneficiary, dependent or
assignee of any such employee other than regular salary, wages or commissions
paid substantially concurrently with the performance of the services for which
paid. Without limitation, the term "Benefit Plan" includes all employee welfare
benefit plans within the meaning of Section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), and all employee pension
benefit plans within the meaning of Section 3(2) of ERISA.
"XXXX OF SALE AND GENERAL ASSIGNMENT" means the Xxxx of Sale and General
Assignment substantially in the form of Exhibit C hereto.
"BOOKS AND RECORDS" means the originals or copies of all records
(including computer generated, recorded or stored records) relating primarily to
the Business, in the care, custody or control of the Sellers, including customer
lists, policy information, applications for insurance, insurance contract forms,
claim records, sales records, underwriting records, financial records, tax
records (provided, however, that state and federal income tax returns and such
papers related thereto shall be excluded), personnel records related to
Transferred Employees, actual and draft filings with any Governmental Entity and
regulatory and compliance records in the possession or control of any of
Sellers, including but not limited to the Database and all other forms of
recorded, computer generated or stored information relating primarily to the
Business; provided,
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however, if any such records contain information that does not relate to the
Business such information which does not relate to the Business shall not
constitute "Books and Records."
"BUSINESS" means the evaluation, management and transfer of agricultural
production risks through insurance, reinsurance and otherwise as formerly or
presently conducted, or as previously or presently planned or under
consideration, by any of Sellers or any of the Business Employees, or utilizing
any of the Transferred Assets, including, without limitation, the business known
as "Geo Ag", except to the extent primarily related to any Excluded Liability.
"BUSINESS DAY" means any day other than Saturday, Sunday or a day on which
banking institutions in the State of Iowa are permitted or obligated by law to
be closed.
"BUSINESS EMPLOYEES" shall mean all Persons employed by any of Sellers,
whether permanent or temporary, full time or part time, under contract or
otherwise, as of the date of this Agreement or thereafter until the Closing
Date.
"CLAIM NOTICE" shall mean a written notice specifying the nature and
amount of a claim or demand for which any Person seeks indemnification under
Section 9.03 hereof.
"CLOSING" means the execution and delivery of the Ancillary Agreements and
payment of all funds required to be paid upon Closing by Article II of this
Agreement.
"CLOSING DATE" shall mean a date which is the earlier of five business
days after the date on which the last consent, approval, authorization or
declaration required to be obtained from any Governmental Entity pursuant to
this Agreement is made or obtained, or a date which is mutually agreeable to
Sellers and Purchasers.
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"COBRA" shall mean Part 6 of Subtitle B of Title I of ERISA or, as
applicable, Section 4980B of the Code.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONFIDENTIALITY AGREEMENT" means the Confidential Information Agreement,
accepted by AICI effective December 22, 2000, between SIG and AICI.
"CROP HAIL CROP YEAr" means the one-year period beginning January 1 of any
year and continuing through and including December 31 of that year.
"CROP HAIL POLICIES" shall mean contracts of insurance for agricultural
production risks, including but not limited to hail and named perils, which are
not reinsured by FCIC.
"CROP HAIL QUOTA SHARE AGREEMENT" means the IGF/Acceptance Quota Share
Reinsurance Agreement in the form of Exhibit L hereto.
"CROP HAIL RETROCESSION AGREEMENT" means the IGF/Acceptance Retrocession
Agreement in the form of Exhibit E hereto.
"DATABASE" shall mean all records, data, files, input materials, reports
or forms related to the Business, prepared or utilized by Sellers for claim,
processing, accounting, risk management or other purposes, including but not
limited to actual production history, individual unit loss history by crop and
other data related to the Business.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974 as
amended.
"EXCLUDED ASSETS" shall mean (i) all of the capital stock of IGFH and of
IGF; (ii) the Agent Loans specified by Purchasers that they elect not to
purchase, in their sole discretion, at
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Closing; (iii) all rights of Sellers to any recovery in conjunction with
litigation or proceedings arising from changes in the FCIC regulations with
respect to prevented planting effective for the 1996 crop year; (iv) all amounts
due to Sellers under Section 2.02(h); (v) all of the capital stock of North
American Crop Underwriters, Inc.; (vi) all of the equity ownership interests of
Geo Ag Plus, LLC and (vii) the other assets listed in Schedule 1.01.
"EXCLUDED LIABILITY" means all Liabilities of every kind whatsoever
arising from or related to acts or events occurring prior to the Closing Date of
any of Sellers or any other Person (other than Purchaser), whether or not known,
asserted or complete prior to the Closing Date, other than the Assumed
Liabilities. Without limiting the generality of the preceding sentence, and
except as otherwise provided in this Agreement or any of the Ancillary
Agreements, the Excluded Liabilities shall include: (i) any Liabilities arising
from or related to any Excluded Litigation, Orders or Sellers Benefit Plans;
(ii) any indemnification obligations of any of Sellers or any other Person, to
any officer, director, accountant, financial adviser, underwriter, attorney or
to any other Person whether or not related to the Business or to any Transferred
Asset; (iii) any obligation of Sellers for Taxes with respect to the Business
for all periods ending on or before the Closing Date; (iv) any obligation or
liability of any of Sellers arising from one or more of Sellers' failure to
perform on or before the Closing Date any of the Assigned and Assumed Contracts
or any other contract or agreement, including this Agreement, any of the
Ancillary Agreements or any contract or agreement of any of Sellers relating in
any way to any transaction contemplated by this Agreement; (v) any expense or
obligation of Sellers of any kind incurred in connection with any sale or act
contemplated by this Agreement, (vi) any liability or obligation of any Person
to any of the Business Employees under any Benefit Plans or otherwise, other
than the Assumed Employee Liabilities; (vii) any liability or obligation of any
of Sellers or
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any other Person arising from or resulting from noncompliance prior to the
Closing Date with any federal, state, local or foreign laws, regulations,
orders, or administrative or judicial determinations; (viii) any liability or
obligation of any of Sellers or any other Person resulting from any employment
practices applicable to Sellers' employees at any time prior to the Closing
Date; (ix) any fines, penalties or liabilities imposed at any time before or
after the Closing Date on any of Sellers or any other Person by any Governmental
Entity arising from or related to acts or events with respect to the Business,
the Transferred Assets or otherwise occurring on or before the Closing Date; or
(x) any brokerage or finder's fee payable by Sellers or any other Person other
than Purchaser in connection with any transaction contemplated by this
Agreement.
"EXCLUDED LITIGATION" means (a) any present or future action, suit,
arbitration or legal or administrative proceeding, and any present or future
criminal, regulatory or administrative actions or investigations by any
Governmental Entity, which relate to the Business, any Transferred Asset or any
Transferred Employee and to the extent arising from or relating to acts, events
or occurrences prior to Closing, and (b) any Action identified in Schedule 3.07
and designated as Excluded Litigation.
"FALL PREMIUM" means all premium arising from or related to 2001 MPCI
Policies, whether paid by an agricultural producer or by FCIC, which is the
basis for or otherwise associated with the A&O FCIC pays to Sellers before
Closing.
"FCIC" means the Federal Crop Insurance Corporation.
"FEDERAL CROP INSURANCE PROGRAM" means the program of agricultural
production insurance established by the Federal Crop Insurance Act, the
Agricultural Risk Protection Act of 2000 and all related legislation.
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"GOVERNMENTAL ENTITY" shall mean any of the United States, any state and
any court or governmental or regulatory authority or agency, domestic or
foreign.
"GRANITE RE" means Granite Reinsurance Company, Ltd., a Barbados
corporation.
"GRANITE RE TREATY" means the reinsurance contract in the form of Exhibit
F hereto.
"INDEMNIFIED PURCHASER PARTY" shall mean Purchasers, their Affiliates and
all of their respective successor and assigns.
"INDEMNIFIED SELLER PARTY" shall mean Sellers and Shareholders, their
Affiliates and all of their respective successors and assigns.
"INSURANCE CONTRACTS" means all contracts of insurance accepted and in
force on the Closing Date which are either MPCI Policies written or assumed by
IGF with respect to the 2001 MPCI Crop Year, or Crop Hail Policies written or
assumed by IGF during the 2001 Crop Hail Year or any Named Peril Crop Year
beginning on or after July 1, 2000.
"INSURANCE LIABILITIES" means all Liabilities arising under or in
connection with the Insurance Contracts to the extent unpaid or unperformed on
or before the Closing Date.
"INTANGIBLE ASSETS" means all of Sellers' intangible assets primarily used
in or obtained for use in the Business.
"INTELLECTUAL PROPERTY" means all patents, trade names, trademarks,
service marks (excluding the corporate and trade names "IGF"), copyrights and
applications for any of them, the Database and all proprietary information,
confidential information, loss histories, trade
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secrets, customer lists, expertise, experience, systems and processes with
respect to the Business owned by or licensed to any of Sellers.
"KNOWLEDGE OF SELLERS" or "SELLERS' KNOWLEDGE" means actual knowledge or
knowledge of any of Xxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxx Xxxxxxxx,
Xxxx Xxxxx, Xxxx Xxxxx, Xxxx Xxxxxxx or Xxxxx Xxxxxxx.
"LIABILITIES" shall mean Liens, debts, liabilities, commitments or
obligations of any kind, character or nature whatsoever, whether known or
unknown, xxxxxx or inchoate, secured or unsecured, accrued, fixed, absolute,
contingent or otherwise, and whether due on or before the Closing Date or to
become due arising from or relating to the Business or to any Transferred Asset
including, but not limited to, those identified on Schedule 3.04.
"LICENSE AGREEMENT" means the License Agreement in the form of Exhibit G
hereto.
"LICENSED SOFTWARE" shall mean all computer software programs of any kind
whatsoever licensed to any of Sellers or their Affiliates by any third party and
used in the ordinary conduct of the Business by Sellers at any time during the
twelve months prior to the date of this Agreement that is designated on Schedule
3.13 for transfer to Purchaser as a Transferred Asset.
"LIEN" means any pledge, claim, lien, charge, mortgage, encumbrance,
security interest of any nature, option, right of first refusal, warrant, or
restriction of any kind, including any restriction on use, voting, transfer,
alienation, receipt of income or exercise of any other attribute of ownership;
provided that this definition of "Lien" shall not include: (i) liens for current
Taxes and assessments not yet due and payable, including, without limitation,
liens for nondelinquent ad valorem Taxes and nondelinquent statutory liens
arising other than by reason of any default
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on the part of Sellers, (ii) such liens, minor imperfections of title or
easements on real property, leasehold estates or personalty as do not in any
material respect detract from the value thereof and do not in any material
respect interfere with the present use of the property subject thereto, and
(iii) materialmens, mechanics, workmens, repairmens, employees, carriers,
warehousemens and other like liens arising in the ordinary course of business or
relating to any construction, rebuilding or repair of any property leased
pursuant to any lease agreement, so long as any such lien does not materially
impair the value of such leased property.
"MANAGEMENT AND SERVICES AGREEMENT" means the Management and Services
Agreement in the form of Exhibit H hereto.
"MPCI CROP YEAR" means the one-year period beginning July 1 of any year
and continuing through and including June 30 of the immediately following year.
"MPCI POLICIES" shall mean contracts of insurance reinsured by FCIC.
"NAMED PERIL CROP YEAR" means any policy period other than a Crop Hail
Year that is specified in the declarations of any Crop Hail Policy.
"NONCOMPETITION AGREEMENT" shall mean (i) the Consulting and
Noncompetition Agreements in the form of Exhibit I to be executed by each of
Goran Capital Inc. and Xxxxxx International Group, Inc., and (ii) the
Noncompetition Agreements in the forms of Exhibit J to be executed by each of
Sellers, North American Crop Underwriters, Inc., Geo Ag Plus, LLC, Xxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx and G. Xxxxxx Xxxxxx, as the case may be, and AICI
pursuant to this Agreement.
13
"NOTICE PERIOD" shall mean the twenty (20) days immediately following
personal delivery or receipt of a registered or certified mailing of a Claim
Notice.
"ORDER" shall mean any judgment, decree, injunction or order of any
Governmental Entity or arbitrator outstanding on or before the Closing Date
against any Person having, or which reasonably could be expected to have,
individually or in the aggregate, a Sellers Material Adverse Effect.
"OWNED SOFTWARE" shall mean each computer software program owned by any of
Sellers, or owned by any of Sellers' Affiliates and used in the operation of
Business that is designated in Schedule 3.13 for transfer to Purchaser as a
Transferred Asset.
"PERSON" means any individual, corporation, partnership, firm, joint
venture, association, limited liability company, limited liability partnership,
joint-stock company, trust, unincorporated organization, governmental, judicial
or regulatory body, business unit, division or other entity.
"PURCHASER GAAP STATEMENTS" has the meaning set forth in Section 4.05.
"PURCHASER MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, financial condition or results of operations of AICI, taken as a
whole.
"REINSURANCE CONTRACTS" means all reinsurance contracts with respect to
the Business, whether ceded or assumed, to which IGF was a party at any time on
or after December 31, 1999 and was in force on or after such date and prior to
Closing.
14
"REPRESENTATIVE" means any officer, director, employee, attorney,
financial advisor, agent or other representative of a Person or those of any of
its subsidiaries or Affiliates.
"RETENTION AND NONCOMPETITION AGREEMENT" means the Retention and
Noncompetition Agreement in the form of Exhibit K hereto.
"RMA" means the Risk Management Agency, a division of the United States
Department of Agriculture responsible for administering the FCIC and the Federal
Crop Insurance Program.
"SAP" means Statutory Accounting Principles prescribed or permitted by the
Indiana Department of Insurance.
"SAP STATEMENTS" has the meaning set forth in Section 3.20(b).
"SEC REPORTS" means the financial statements of any Purchaser included in
a registration statement or report filed with the Securities and Exchange
Commission since December 31, 1998 under the federal securities laws.
"SELLERS ACTUAL 2001 MPCI EXPENSE" means the sum determined pursuant to
Section 2.02(f) of this Agreement.
"SELLERS ESTIMATED 2001 MPCI EXPENSE" means the aggregate amount paid to
Sellers by Purchaser pursuant to Sections 2.02(c) and 2.02(e) of this Agreement.
"SELLERS GAAP STATEMENTS" has the meaning set forth in Section 3.20(a).
"SELLERS MATERIAL ADVERSE EFFECT" means a material adverse effect on the
Business or the financial condition, operations or results of operations of the
Business taken as a whole that would make impracticable the Purchaser's conduct
of the Business substantially as it is being
15
conducted on the date of this Agreement, including but not limited to any event
or series of events that cause the reasonably foreseeable premium from MPCI
Policies for the MPCI Crop Year beginning July 1, 2000 or July 1, 2001 to be
less than Two Hundred Ten Million Dollars ($210,000,000); provided, however, to
the extent such effect results from any of the following, such effect shall not
be considered a Sellers Material Adverse Effect: (i) general conditions
applicable to the economy of the United States, including changes in the
interest rates; (ii) changes in insurance laws or regulations; or (iii)
conditions generally affecting the crop insurance or reinsurance industries in
the United States.
"SPRING PREMIUM" means all premiums arising from or related to 2001 MPCI
Policies that is not Fall Premium.
"SPRING PREMIUM A&O" means the A&O payable to Purchasers under the SRA
with respect to Spring Premium.
"SRA" means the Standard Reinsurance Agreements in effect as of the date
of this Agreement by and between the FCIC and IGF.
"SRA ASSIGNMENT AND ASSUMPTION AGREEMENT" means the SRA Assignment and
Assumption Agreement in the form of Exhibit M hereto.
"TANGIBLE ASSETS" means all furniture, fixtures, equipment, supplies and
other tangible personal property of each of Sellers used primarily in the
Business, whether or not identified on Schedule 3.16, and excluding Excluded
Assets.
"TAX" (including, with correlative meaning, the terms "Taxes" and
"Taxable") shall mean all federal, state, local and foreign income, profits,
franchise, gross receipts, environmental,
16
customs duty, capital stock, severances, premium, stamp, payroll, sales,
employment, unemployment, disability, use, property, withholding, excise,
production, value added, occupancy and other taxes, duties or assessments of any
nature whatsoever, together with all interest, penalties and additions imposed
with respect to such amounts and any interest in respect to such penalties and
additions.
"TRANSFER DOCUMENTS" means this Agreement, the Ancillary Agreements and
such other documents and instruments consistent with this Agreement as Purchaser
may reasonably request, which complete, perfect and evidence Sellers' immediate
and unconditional sale and transfer to Purchasers of each of Sellers' respective
rights, titles and interests in and to the Transferred Assets and the Business.
"TRANSFERRED ASSETS" means each of Sellers' respective rights, titles and
interests in and to the Business, including but not limited to Advance MPCI
Commission, Advance Other Commission, Agent Loans, Assignable Licensed Software,
the Assigned and Assumed Contracts, all sums due or to become due to Sellers in
respect of any of the Assigned and Assumed Contracts pursuant to this Agreement,
the Tangible Assets, the SRA, the Aquaculture SRA, the Books and Records, the
Database, the Insurance Contracts, the Intangible Assets, the Intellectual
Property, the Licensed Software, the Owned Software, all 2001 MPCI Premium
except for Fall Premium paid before Closing, all A&O, except (i) A&O paid by
FCIC and received by IGF before Closing and (ii) all A&O reimbursed to IGF under
Section 2.02(h), the Tangible Assets and all other assets referred to in any of
the Transfer Documents; provided, however, that the Transferred Assets shall not
include any of the foregoing to the extent that they (i) are terminated,
transferred or otherwise disposed of as permitted by Section 5.01 hereof between
the date of this Agreement and the Closing Date or (ii) constitute Excluded
Assets.
17
"TRANSFERRED EMPLOYEES" shall mean all Business Employees who are employed
by Purchaser as of 12:01 p.m., Central time on the day following the Closing
Date.
"2001 CROP HAIL YEAR" means the one-year period beginning on January 1,
2001 through and including December 31, 2001.
"2001 MPCI CROP YEAR" means the one-year period beginning on July 1, 2000,
through and including June 30, 2001.
"2001 MPCI POLICIES" means the Sellers' MPCI Policies written for the 2001
MPCI Crop Year.
"2001 MPCI PREMIUM" means the total aggregate amount of the Fall Premium
and the Spring Premium.
ARTICLE II
TRANSFER AND ACQUISITION OF ASSETS
SECTION 2.01. TRANSFER AND ACQUISITION.
(a) Upon the terms and subject to the conditions of this Agreement,
on the Closing Date, each of Sellers shall sell, convey, transfer, assign
and deliver to Purchaser, and Purchaser shall purchase, receive, assume
and accept from each of Sellers all of the Transferred Assets and
Purchaser shall have exclusive use of the Transferred Assets on and after
the Closing Date. All sales, assignments and transfers of the Transferred
Assets shall be effected by the Transfer Documents.
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(b) Upon the terms and subject to the conditions of this Agreement,
on the Closing Date, Sellers shall assign and Purchaser shall assume the
Assumed Liabilities pursuant to this Agreement and the Assignment and
Assumption Agreement and IGF shall cede and Purchaser shall reinsure the
Sellers' Insurance Liabilities pursuant to the Crop Hail Retrocession
Agreement, the SRA Assignment and Assumption Agreement and the Aquaculture
SRA Assignment and Assumption Agreement. Notwithstanding anything in this
Agreement or the Ancillary Agreements to the contrary, Purchaser shall not
assume and shall not at any time hereafter, including on or after the
Closing Date, become obligated to pay, perform, satisfy or discharge any
Liability of Sellers, other than the Assumed Liabilities, including but
not limited to any Excluded Liability.
(c) Any transfer or sales tax imposed in connection with the
transfer, sale, assumption or recording of the Transferred Assets to be
transferred pursuant to Section 2.01(a), or the Assumed Liabilities to be
assumed pursuant to Section 2.01(b), or in connection with any transfer of
cash or delivery of any property under any provision of Section 2.02,
shall be paid equally by Purchaser and Sellers.
SECTION 2.02. PAYMENTS AND REIMBURSEMENTS.
(a) Subject to the terms and conditions of this Agreement and the
Ancillary Agreements, in consideration of the sale, assignment and
transfer under Section 2.01 hereof, at Closing Purchaser shall accept from
Sellers the Assumed Liabilities and the Transferred Assets and shall:
(i) pay Nine Million Nine-Hundred Thousand Dollars
($9,900,000) to IGF by wire transfer of immediately available funds,
to an account designated in
19
writing by Sellers to Purchaser no later than two Business Days
prior to the Closing Date;
(ii) pay Two Million Five-Hundred Thousand Dollars
($2,500,000) to IGF by wire transfer in immediately available funds,
to an account designated in writing by Sellers to Purchaser no later
than two Business Days prior to the Closing Date, for and in
consideration of all furniture, fixtures and equipment and Owned
Software sold by IGF to Purchaser pursuant to this Agreement;
(iii) reimburse IGF by wire transfer in immediately available
funds, to an account designated in writing by Sellers to Purchaser
no later than two Business Days prior to the Closing Date, the
aggregate of all Advance MPCI Commission and Advance Other
Commission in the amounts certified by IGF on the Closing Date; and
(iv) pay IGF by wire transfer in immediately available funds,
to an account designated in writing by Sellers to Purchaser no later
than two Business Days prior to the Closing Date an amount equal to
the aggregate amount of all principal and interest due to Sellers
unpaid on the Closing Date with respect to all Agent Loans that
Purchaser, in its sole discretion, elects to purchase on the Closing
Date.
(b) Purchaser will remit to FCIC all 2001 MPCI Premium and
Administrative Fees paid after Closing, and Sellers will remit to FCIC all
2001 MPCI Premium and Administrative Fees paid before Closing. Sellers
will retain all A&O paid by FCIC and
20
received by Sellers before Closing. On or before June 30, 2001, Purchasers
will pay IGF an amount equal to three percent (3%) of the estimated Fall
Premium.
(c) Purchaser agrees to (i) reimburse IGF for the pro rata portion
of the 2001 A&O which IGF earned before the Closing Date based upon the
formulas contained in SECTIONS 2.02(C), 2.02(D), 2.03(E), 2.02(F) AND
2.02(G) of this Agreement and, (ii) from such 2001 A & O reimbursement,
pay on behalf of IGF the Actual 2001 MPCI Agent Commission in excess of
Advance MPCI Commission to the Agents entitled thereto. On or before
September 15, 2001 Purchaser will determine and will advise Sellers of the
aggregate Spring Premium A&O received by Purchasers as of September 10,
2001. Purchasers will remit to IGF by wire transfer in immediately
available funds to an account designated in writing by Sellers an amount
equal to:
(i) The aggregate Spring Premium A&O received by Purchasers as
of September 10, 2001; plus,
(ii) Six percent (6%) of the aggregate Spring Premium that was
the basis for calculating the aggregate Spring Premium A&O received
by Purchasers as of September 10, 2001; plus,
(iii) All portions of the Actual 2001 MPCI Agent Commission in
excess of Advance MPCI Commission, if any, actually paid to Agents
by Sellers before Closing pursuant to Assigned and Assumed Contracts
identified in Schedule 3.05B; minus,
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(iv) Eighteen and Eight-Tenths Percent (18.8%) of the
aggregate Spring Premium that was the basis for calculating the
aggregate Spring Premium A&O received by Purchasers as of September
10, 2001; minus,
(v) Eighteen and Eight-Tenths Percent (18.8%) of the estimated
Fall Premium; minus,
(vi) Six Million Five Hundred Thousand Dollars ($6,500,000).
(d) On or before November 15, 2001, Purchaser will determine and
will advise Sellers of the actual Spring Premium received or receivable by
Purchasers as of November 1, 2001, the Fall Premium received by Purchaser
as of November 1, 2001, and the A&O with respect to Fall Premium, if any,
received by Purchaser after the Closing Date and on or before November 1,
2001, and will make the following calculation:
(i) The aggregate Spring Premium A&O received by Purchasers as
of November 1, 2001; plus,
(ii) Six percent (6%) of the Spring Premium received or
receivable by Purchasers as of November 1, 2001; plus,
(iii) All portions of the Actual 2001 MPCI Agent Commission in
excess of Advance MPCI Commission, if any, actually paid to Agents
by Sellers before Closing pursuant to Assigned and Assumed Contracts
identified in Schedule 3.05B; plus
(iv) Three percent (3%) of the Fall Premium; plus,
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(v) The A&O with respect to Fall Premium, if any, received by
Purchaser after the Closing Date; minus,
(vi) Eighteen and Eight-Tenths (18.8%) of the Spring Premium
received or receivable by Purchasers as of November 1, 2001; minus,
(vii) Eighteen and Eight-Tenths Percent (18.8%) of the Fall
Premium; minus,
(viii) Six Million Five Hundred Thousand Dollars ($6,500,000);
minus
(ix) All payments previously made to Sellers by Purchaser
pursuant to Sections 2.02(b) and 2.02(c) of this Agreement.
(e) If the amount calculated pursuant to Sections 2.02(d)(i) through
2.02(d)(viii) is greater than the amount stated in Section 2.02(d)(ix),
Purchasers shall remit the difference to IGF. If the amount calculated
pursuant to Sections 2.02(d)(i) through 2.02(d)(viii) is less than the
amount stated in Section 2.02(d)(ix), IGF shall remit the difference to
Purchasers.
(f) On or before August 15, 2002, Purchasers will determine and will
advise Sellers of the actual Spring Premium, the actual Fall Premium and
the Actual 2001 MPCI Agent Commission, and will make the following
calculation:
(i) The Spring Premium A&O received by Purchasers; plus,
(ii) Six percent (6%) of the Spring Premium; plus,
(iii) Three percent (3%) of the Fall Premium; plus,
23
(iv) All portions of the Actual 2001 MPCI Agent Commission in
excess of Advance MPCI Commission, if any, actually paid to Agents
by Sellers before Closing pursuant to Assigned and Assumed Contracts
identified in Schedule 3.05B; plus,
(v) The A&O, if any, with respect to Fall Premium received by
Purchaser after the Closing Date; minus,
(vi) Two and One-Half Percent (2.5%) of the Spring Premium;
minus,
(vii) Two and One-Half Percent (2.5%) of the Fall Premium;
minus,
(viii) The Actual 2001 MPCI Agent Commission; minus,
(ix) Six Million Five Hundred Thousand Dollars ($6,500,000).
(g) If Sellers Actual 2001 MPCI Expense is greater than Sellers
Estimated MPCI Expense, then Purchasers will remit the amount of the
difference to IGF on or before September 15, 2002. If Sellers Actual 2001
MPCI Expense is less than Sellers Estimated MPCI Expense, then IGF will
remit the amount of the difference to Purchasers on or before September
15, 2002.
(h) Not later than thirty (30) days following the end of any
calendar quarter beginning after the Closing Date during which Purchaser
receives any premium, A&O, underwriting gain, or any other interest
arising from or related to MPCI policies previously insured by Sellers
with respect to Crop Years prior to the 2001 MPCI Crop Year, Purchaser
will remit the entire amount received during that calendar quarter to
24
Sellers; provided, however, that Purchaser may deduct from such payment an
amount equal to any amount RMA has determined to be due to FCIC as a
result of any act, error or omission of Sellers prior to the Closing Date.
SECTION 2.03. PLACE AND DATE OF CLOSING. The Closing shall take place at
the offices of AMAG in Council Bluffs, Iowa at 10:00 a.m., Central time on the
Closing Date.
SECTION 2.04. TRANSACTIONS TO BE EFFECTED AT THE CLOSING.
(a) At the Closing, Sellers and Shareholders shall execute (where
appropriate), and Goran shall cause Granite Re to execute where
appropriate, and deliver to Purchaser the Ancillary Agreements and such
other agreements, instruments and documents as are required by this
Agreement to be delivered by Sellers at the Closing.
(b) At the Closing, Purchaser shall execute and deliver to Sellers,
Shareholders and Granite Re (as appropriate) the Ancillary Agreements and
such other agreements, instruments and documents as are required by this
Agreement to be delivered by Purchaser at the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS AND SHAREHOLDERS
Within six days following the execution of this Agreement the Sellers
shall deliver to Purchaser a letter designated as the disclosure letter (the
"Disclosure Letter"), with all references to "Schedule" in the Disclosure Letter
to coordinate with the particular section number hereof. Upon the delivery of
the Disclosure Letter to Purchaser, Purchaser shall have a period of 48 hours
thereafter to terminate this Agreement in its sole and absolute discretion.
Sellers and
25
Shareholders jointly and severally hereby represent and warrant to Purchaser
that the following statements are true and correct as of the date of this
Agreement or such other time as may be specified in such statements.
SECTION 3.01. ORGANIZATION, STANDING AND AUTHORITY. Each Seller is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the requisite corporate power and
authority to carry on the operations of the Business as they are now being
conducted and to own, use, transfer and sell the assets, rights, benefits and
obligations being transferred to Purchaser pursuant to this Agreement and the
Ancillary Agreements.
SECTION 3.02. AUTHORIZATION. Each Seller has the requisite power and
authority to execute, deliver and perform its obligations under this Agreement
and under each of the Ancillary Agreements. The execution and delivery by each
Seller of this Agreement and the Ancillary Agreements either executed or to be
executed by it, and the performance by each Seller of its obligations hereunder
and thereunder, have been duly authorized by all necessary action on the part of
each Seller. This Agreement and each Ancillary Agreement executed on the date of
this Agreement has been duly executed and delivered by each Seller and, subject
to the due execution and delivery hereof by Purchaser, is a valid and binding
obligation of each Seller, enforceable against each Seller in accordance with
its terms, except as enforceability may be limited by bankruptcy and other
similar laws relating to or affecting creditors' rights generally. As of the
Closing Date, the Ancillary Agreement(s) to be executed and delivered by each
Seller on such Closing Date will have been duly executed and delivered by each
such Seller and, subject to the due execution and delivery of such agreements by
Purchaser, the Ancillary Agreement(s) to be executed by each Seller shall be the
valid and binding obligation of such
26
Seller, enforceable against such Seller in accordance with its terms, except as
enforceability may be limited by bankruptcy and other similar laws relating to
or affecting creditors' rights generally.
SECTION 3.03. NO CONFLICT OR VIOLATION, ETC. Except as disclosed in
Schedule 3.03, the execution and delivery by each Seller of this Agreement and
of the Ancillary Agreements to which it is a party do not, and the consummation
by each Seller of the transactions contemplated by this Agreement and by such
Ancillary Agreements and compliance with the provisions hereof and thereof will
not, (a) conflict with any of the provisions of the Articles of Incorporation,
Bylaws or other charter documents of such Seller, (b) subject to the matters
referred to in the next sentence, conflict with, result in a breach of or
default (with or without notice or lapse of time, or both) under, give rise to a
right of termination, cancellation or acceleration of any obligation or loss of
a benefit under, require the consent of any person under, or result in the
creation of any Lien on any property or asset of such Seller under, any
indenture or other agreement, permit, franchise, license or other instrument or
undertaking to which such Seller is a party or by which such Seller or any of
its assets is bound or affected, or (c) subject to the matters referred to in
the next sentence, contravene any statute, law, ordinance, rule, regulation,
order, judgment, injunction, decree, determination or award applicable to such
Seller or any of its properties or assets. No consent, approval or authorization
of, or declaration or filing with, or notice to, any Governmental Entity is
required to be obtained or made by or with respect to any Seller, in connection
with the execution and delivery of this Agreement by such Seller or the
consummation by such Seller of the transactions contemplated hereby, except for
the particular filings, notices, consents, approvals, authorizations and
declarations set forth in Schedule 3.03.
27
SECTION 3.04. NO UNDISCLOSED LIABILITIES. There are no Liabilities except
as described in Schedule 3.04 or reflected on the most recent balance sheets
included in the GAAP Statements or SAP Statements identified in Section 3.20, or
incurred by the Sellers in the ordinary course of business since the date of the
most recent balance sheet included in the GAAP Statements.
SECTION 3.05. CONTRACTS. Schedule 3.05A contains a complete and correct
list of all Insurance Contracts in force on the date hereof. Schedule 3.05B
contains a complete and correct list of all contracts, agreements and
commitments of every kind whatsoever to which any of Sellers or Sellers'
Affiliates are a party as of the date hereof which relate to the Business or the
Transferred Assets, or the material breach, immediate termination or
cancellation of which reasonably would be expected to disrupt or interfere with
the normal operations of the Business, except only (i) contracts, agreements and
commitments that relate to an asset that is not a Transferred Asset and
Reinsurance Contracts listed on Schedule 3.11 and (ii) contracts, agreements and
commitments that, although they relate to Transferred Assets and are therefore
Assigned and Assumed Contracts, are not required to be individually scheduled on
Schedule 3.05B because they relate to the purchase or lease of equipment,
materials, supplies or other real or personal property involving amounts not in
excess of $10,000, or they relate to the performance of services over a period
of not more than thirty days and involving an amount not in excess of $10,000.
There are no written representations or agreements between Sellers or
Shareholders with Agents regarding Actual 2001 MPCI Agent Commissions except as
set forth in Schedule 3.05B. Each of the contracts, agreements and commitments
listed on Schedule 3.05A and Schedule 3.05B is in full force and effect and is
the valid and binding obligation of each party thereto, except as the
enforceability of any thereof may be limited by bankruptcy and other similar
laws relating to or affecting creditors' rights generally. Except as
28
specifically set forth in Schedule 3.05B, none of Sellers, or to the Knowledge
of Sellers, no other Person is (or, with the giving of notice or the lapse of
time or both, will be) in violation or breach of or default under any of the
contracts, agreements or commitments listed on Schedule 3.05B.
SECTION 3.06. TITLE TO ASSETS. Sellers have good and valid title to all of
the Business and Transferred Assets, free and clear of all Liens, except for
Liens disclosed in Schedule 3.06. At the Closing, Purchaser will acquire the
Transferred Assets for its exclusive use free and clear of all Liens, except for
any Liens arising from acts of Purchaser or any of its Affiliates. As of the
Closing Date Shareholders shall have no right, title or interest in the
Transferred Assets. Notwithstanding the foregoing, neither Sellers nor
Shareholders have made any independent inquiries regarding Intangible Assets or
Intellectual Property that is derived from or related to the personal efforts,
expertise or experience of any of the Business Employees. Neither Shareholders
nor Sellers make any representation or warranty that any of them have any right,
title or interest in Intangible Assets or Intellectual Property that is derived
from or related to the personal efforts, expertise or experience of any of the
Business Employees; however, Sellers shall convey whatever right, title or
interest, if any, any of them may have in such assets or property to Purchaser
pursuant to this Agreement and the Ancillary Agreements.
SECTION 3.07. LITIGATION; ORDERS. Except as disclosed in Schedule 3.07,
there are no Actions or Orders.
SECTION 3.08. COMPLIANCE WITH LAWS. Except where such violation or failure
to comply would not individually or in the aggregate result in a Sellers
Material Adverse Effect or except as disclosed in Schedule 3.08, each Seller has
complied, and is in compliance, with all applicable statutes, laws, ordinances,
rules, regulations and orders of any Governmental Entity,
29
and none of Sellers have received any notice or other communication whether oral
or written from any Governmental Entity, arbitrator or any other Person
regarding any such actual or alleged violation or failure to comply.
SECTION 3.09. EMPLOYEE MATTERS.
(a) Sellers have not directly or indirectly acted in any manner or
incurred any obligation or liability with respect to any Business
Employee, employment matter or Benefit Plan which has or could give rise
to any Liens on any of the Transferred Assets, or which could result in
any liability to or obligation of Purchaser, whether arising out of the
establishment, operation, administration or termination of such employment
matter or Benefit Plan or any transaction contemplated by this Agreement.
(b) Sellers will timely provide all notices and any continuation of
health benefit coverage (including, without limitation, medical and dental
coverage) required to be provided to Business Employees, Persons who
previously were Business Employees or the beneficiaries or dependents of
any of them, under COBRA to the extent such notices and continuation of
health benefit coverage are required to be provided by reason of the
events occurring prior to or on the Closing Date or by reason of the
transactions contemplated by this Agreement. Sellers will continue the
health benefit coverage required by COBRA.
(c) Each Retention and Noncompetition Agreement that is included as
an Assigned and Assumed Contract is in full force and effect, is validly
executed and is the valid and binding obligation of each party thereto.
Each individual identified in each agreement is an employee of the Sellers
as of the date of this Agreement.
30
SECTION 3.10. BROKERS. No broker, investment banker, financial advisor or
other Person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated by
this Agreement based upon any contract, agreement, understanding or arrangement
made by or on behalf of Sellers.
SECTION 3.11. REINSURANCE CONTRACTS. Schedule 3.11 sets forth a complete
and accurate list of all Reinsurance Contracts. Sellers are not in default as to
any provision in any Reinsurance Contract and to the Knowledge of Sellers no
other party to any Reinsurance Contract is in default as to any provision
thereof. On the Closing Date and immediately before Closing, Sellers will not be
a party to any Reinsurance Contracts.
SECTION 3.12. COMPLIANCE DISPUTES. Schedule 3.12A sets forth a complete
and accurate list of all requests by RMA for additional information regarding
MPCI Policies which have not resulted in a final, nonappealable determination by
RMA as of the date of this Agreement regarding whether the MPCI Policies
complied with FCIC requirements. Schedule 3.12B sets forth a complete and
accurate list of all market conduct enforcement or market conduct regulatory
communications (including complaints, notices and directives) received by any of
Sellers with respect to the Business from any state insurance regulatory
authority or Government Entity other than RMA since January 1, 2000.
SECTION 3.13. COMPUTER SOFTWARE.
(a) Schedule 3.13 hereto contains a true and complete listing of all
computer software programs used and necessary in the conduct of the
Business at any time since January 1, 2000. Schedule 3.13 hereto also
identifies whether each such computer
31
software program is Owned Software or Licensed Software and whether each
such program will be transferred to Purchaser at Closing as a Transferred
Asset.
(b) On the Closing Date, Purchaser will have, pursuant to an
assignment of all of the rights to the Owned Software and the Assignable
Licensed Software, the right to use the Assignable Licensed Software
generally in the same manner and to the same extent as the software was
used by Sellers prior to the Closing Date and ownership of the Owned
Software, both free and clear of any royalty or other similar payment
obligations or Lien except to the extent being paid by Sellers.
SECTION 3.14. DATABASE. Subject to Closing and from and after the Closing
Date, the Database will be for the exclusive use of Purchaser and Sellers will
no longer possess any interest, title, Lien or right to use the Database,
subject to Section 5.16 of this Agreement.
SECTION 3.15. TAXES.
(a)(i) There are no Liens for Taxes imposed upon any of the
Transferred Assets that were imposed in connection with any failure (or
alleged failure) of any Seller to pay any Tax; (ii) each of Sellers has
complied (and until the Closing Date will comply) in all material respects
with the provisions of the Code relating to the payment and withholding of
Taxes, including without limitation the withholding and reporting
requirements under Sections 1441 through 1464, 3401 through 3406, and 6041
and 6049 of the Code, as well as similar provisions under any other laws;
and (iii) none of the Transferred Liabilities of any of Sellers is
"corporate acquisition indebtedness" within the meaning of Section 279(b)
of the Code.
32
(b) Sellers have withheld from their employees and other payees (and
timely paid to the appropriate Governmental Entity) all amounts required
by the Tax withholding provisions of applicable federal, state, local and
foreign laws (including, without limitation, income, social security and
employment Tax withholding for all types of compensation, and withholding
from payments to non-United States persons) for all periods through the
date hereof.
SECTION 3.16. CONDITION OF TANGIBLE ASSETS. All Tangible Assets which are
included in the Transferred Assets are in good operating condition and repair,
subject only to normal wear and maintenance and obsolescence, are useable in the
regular and ordinary course of the Business. No Person other than Sellers owns
any of the Tangible Assets necessary to the operation of the Business, except
for leased items identified as such on Schedule 3.16, and subject to a contract
or agreement listed on Schedule 3.05B.
SECTION 3.17. INTELLECTUAL PROPERTY, COMPUTER SOFTWARE AND DATABASE.
Except to the extent that any exceptions to the following representations and
warranties does not have a material adverse effect individually or in the
aggregate:
(a) Sellers own or lawfully possess sufficient legal rights to all
the Database, Owned Software, Licensed Software and all other Intellectual
Property as are actually used by Sellers in the conduct of the Business as
currently conducted.
(b) With respect to the Business, none of Sellers is using any
confidential information, patents, copyrights, trademarks, service marks,
trade names, trade secrets, licenses, computer software, computer
software, databases and other proprietary rights and processes of any
other Person without such Person's permission.
33
(c) None of Sellers has violated, or has received any written or
oral communications alleging that any such Seller has violated or, by
conducting the Business would violate, any patents or copyrights of any
other Person. With respect to the Business, none of Sellers has knowledge
(i) that any Intellectual Property used by Sellers in the Business is the
subject of any application for any form of protection or exclusive rights
by any Person other than Sellers, or (ii) that any of the Intellectual
Property, Owned Software, Licensed Software or Database has been legally
declared unprotected, non-proprietary or non-exclusive or is the subject
of any pending or threatened Action for opposition, cancellation or a
declaration of invalidity or is infringed by the activities of another.
(d) With respect to the Business, Sellers have the right, subject to
Section 3.13(b), to use free and clear of any interference by others all
of the Intellectual Property, Owned Software, Licensed Software and
Database.
SECTION 3.18. INSURANCE AGENTS. Schedule 3.18 contains, to Sellers'
Knowledge, true, complete and accurate information as of the date of this
Agreement regarding all Agents including their names, addresses, telephone
numbers, electronic mail addresses and gross premiums written for or on behalf
of Sellers by line of business for each of 1999, 2000 and 2001. Since January 1,
2001, no Agents have terminated any agency contract or other agreement with
Sellers, cancelled or relinquished their appointment by IGF, given Sellers
notice of their intent to terminate any of their contracts or other agreements
with any of Sellers or Sellers' Affiliates, materially breached any contract or
other agreement with Sellers or taken any action which would, with the passage
of time, result in termination of any of the Agent's contracts or other
agreements with any of Sellers or Sellers' Affiliates except as set forth in
Schedule 3.18. Except
34
as set forth in Schedule 3.18, each Agent who produced any portion of the 2001
MPCI Premium recorded in the Database prior to the date of this Agreement was
duly appointed by IGF and, to Sellers' Knowledge, held all licenses required in
the states in which such 2001 MPCI Premium was produced.
SECTION 3.19. LICENSES. Schedule 3.19 is a complete list of all licenses,
permits, authorizations and consents provided or issued to any of Sellers by any
Governmental Entity and necessary for the conduct of the Business or full
utilization of the Transferred Assets.
SECTION 3.20. FINANCIAL STATEMENTS.
(a) GAAP STATEMENTS. Schedule 3.20(a) includes the unaudited balance
sheet of IGFH at December 31, 2000, the unaudited income statements of
IGFH for the years ended December 31, 1998, 1999 and 2000 and on the
Closing Date will include the unaudited balance sheet and income statement
of IGFH for the three-month period ended March 31, 2001 (the "Sellers GAAP
Statements"). The Sellers GAAP Statements are in accordance with the Books
and Records, have been prepared in accordance with Accounting Principles
(except with respect to the omission of footnotes) applied on a consistent
basis throughout the periods covered by such statements, and on the
Closing Date will fairly present the financial position of IGFH at the
date of the respective balance sheets and the results of the operation of
IGFH for the periods covered by the respective income statements included
in the Sellers GAAP Statements.
(b) SAP STATEMENTS. Schedule 3.20(b) includes the unaudited
statutory statement for IGF at December 31, 2000, the unaudited statutory
statement for IGF as of March 31, 2001 and the audited statutory
statements of IGF for the years ended
35
December 31, 1998 and 1999 (the "SAP Statements"). The SAP Statements were
prepared in accordance with statutory accounting practices (except with
respect to the omission of footnotes) prescribed or permitted by the
Indiana Department of Insurance, present fairly the admitted assets,
liabilities, capital and surplus of IGF and the results of its operations
for each of the periods then ended in conformity with accounting practices
prescribed or permitted by the Indiana Department of Insurance; provided,
however, the parties agree and acknowledge that there are no statutory
accounting practices prescribed by the National Association of Insurance
Commissioners with respect to revenues from crop insurance.
SECTION 3.21. DISCLOSURE. No representation or warranty of Sellers in this
Agreement, nor any certificate, schedule, exhibit or written information
furnished to or to be furnished by Sellers pursuant to this Agreement or the
Ancillary Agreements, or any document or certificate delivered to Purchaser by
or on behalf of Sellers pursuant to this Agreement or the Ancillary Agreements,
contains or will contain, on the date of such statement, certificate, schedule,
exhibit or document, any untrue statement of material fact, or omits or will
omit, on such date, a material fact necessary to make the statements contained
therein, in light of the circumstances in which they are made, not misleading.
SECTION 3.22. ABSENCE OF CERTAIN CHANGES. Except as set forth on Schedule
3.22, since December 31, 2000 Sellers have not in connection with the Business,
(i) suffered any change constituting a Sellers Material Adverse Effect, (ii)
materially changed the accounting principles, operations, practices or methods
utilized with respect to the Business, or (iii) taken any action of the type
described in Section 5.01 of this Agreement.
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SECTION 3.23. INSURANCE CONTRACTS.
(a) All insurance policy benefits payable by Sellers under the
Insurance Contracts pursuant to claims which have been filed with any of
them have, in all material respects, been paid in accordance with the
terms of the Insurance Contracts and applicable provisions of state law
and the Federal Crop Insurance Programs under which they arose, are being
processed in the ordinary course of Sellers' business or are in dispute
under circumstances which Sellers believe constitute a reasonable basis to
contest payment;
(b) The underwriting standards utilized and ratings applied with
respect to the Business by Sellers and by any other entity that is a party
to or bound by any Reinsurance Contracts, including the MPCI Quota Share
Contract effective July 1, 1997 issued to Continental Casualty Company by
IGF and the MPCI Quota Share Agreement effective July 1, 1997 issued to
IGF by Continental Casualty Company, conform in all material respects to
industry accepted practices and the standards and ratings required
pursuant to the terms of such respective Reinsurance Contracts;
(c) Except as set forth in Schedule 3.18, each Agent, at the time
such Agent wrote, sold or produced any MPCI Policies or any Crop Hail
Policies for IGF, was duly appointed by IGF and, to Sellers' Knowledge,
was duly licensed as an insurance agent (for the type of business written,
sold or produced by such Agent) in the particular jurisdiction in which
such Agent wrote, sold or produced such business;
(d) To Sellers' Knowledge, no Agent has violated (or with or without
notice or lapse of time or both, would have violated) any term or
provision of any law,
37
regulation or any writ, judgment, decree, injunction or similar order
applicable to the writing, sale or production of the Business, except
where such violation would not have a material adverse effect on the
Business;
(e) All Insurance Contracts have been issued, to the extent required
under applicable law, on forms approved by the FCIC or the insurance
regulatory authority of the state where issued or, to the extent required
by applicable law, have been filed with and not objected to by such
authority within the period provided for objections; and any premium rates
with respect to the Business required to be filed with or approved by
insurance regulatory authorities have been so filed or approved and
premiums charged conform thereto in all material respects.
SECTION 3.24. OFFICE PREMISES. Schedule 3.24 identifies each location
utilized by Sellers as a primary work site for any Business Employees, and the
number of Business Employees for which that location is the Business Employees'
primary work site. The square footage of each identified location actually
utilized by Sellers as of the date of this Agreement for conducting the
Business, and if leased the name and address of the owner's representative, and
the terms and conditions of Sellers' current lease also are set forth in
Schedule 3.24.
SECTION 3.25. SOLVENCY. Each of IGF and IGFH are solvent as of the date of
this Agreement, and none will be rendered insolvent by the execution and
performance of this Agreement or any of the Ancillary Agreements or the
consummation of the transactions contemplated by this Agreement or any of the
Ancillary Agreements. No action has been taken by or on behalf of any of the
Sellers for the termination, winding up, liquidation or dissolution of any of
them or to make any assignment for the benefit of creditors. None of the Sellers
is unable
38
to pay its debts as they mature. None of the Sellers has filed a petition in
voluntary liquidation or bankruptcy or under other similar laws or has commenced
any case or proceeding under applicable insolvency or bankruptcy laws or other
similar laws. None of the Sellers has consented to the appointment of a
receiver, administrator, custodian, liquidator or trustee of all or any part of
the assets of any of the Sellers. None of the Sellers has taken any corporate
action for the purpose of effecting any of the foregoing. No order or decree has
been rendered by any Governmental Entity with respect to any of the Sellers
regarding any of the foregoing. None of the Sellers has been adjudicated as
bankrupt or insolvent. No petition for any proceeding in bankruptcy, liquidation
or insolvency or for the reorganization or readjustment of indebtedness has been
filed with respect to any of the Sellers. No case or proceeding has been
commenced under any applicable bankruptcy or insolvency laws against any of the
Sellers. No receiver, administrator, custodian, liquidator or trustee has been
appointed for any of the Sellers or any part of the assets of any of the
Sellers.
SECTION 3.26. RESERVES. Notwithstanding any other provision of this
Agreement to the contrary, Sellers make no representation or warranty that its
reserves for losses and loss adjustment expenses or uncollectible reinsurance
with respect to the Insurance Contracts or the Reinsurance Contracts are
adequate or sufficient.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Purchasers jointly and severally hereby represent and warrant to Sellers
and Shareholders that the following statements are true and correct as of the
date hereof or such other times, and will be true and correct or such other time
as may be specified in such statements.
39
SECTION 4.01. ORGANIZATION, STANDING AND AUTHORITY. Each of AICI, AIC,
AGIC and AMAG is duly organized, validly existing and in good standing under the
laws of the state of its organization and has the requisite corporate power and
authority to carry on the operations of its business as they are now being
conducted.
SECTION 4.02. AUTHORIZATION. Each of AICI, AIC, AGIC and AMAG has the
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement or under each of the Ancillary Agreements to be
executed by it, as the case may be. The execution and delivery by each of AICI,
AIC, AGIC and AMAG of this Agreement and of the Ancillary Agreements executed
and to be executed by it, and the performance by each of AICI, AIC, AGIC and
AMAG of its obligations hereunder and thereunder, have been duly authorized by
all necessary corporate action on the part of each of AICI, AIC, AGIC and AMAG
and its shareholders. This Agreement and each of the Ancillary Agreements
executed on the date of this Agreement has been duly executed and delivered by
AICI on behalf of itself and each of AIC, AGIC and AMAG and, subject to the due
execution and delivery hereof by Sellers, is a valid and binding obligation of
each of AICI, AIC, AGIC and AMAG, enforceable against each of AICI, AIC, AGIC
and AMAG in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). As of the Closing Date, each
Ancillary Agreement executed and delivered by each of AICI, AIC, AGIC and AMAG
will have been duly executed and delivered by each of AICI, AIC, AGIC and AMAG
and, subject to the due execution and delivery of such agreements by Sellers,
each Ancillary Agreement executed by each of AICI, AIC, AGIC and AMAG is a valid
and binding
40
obligation of them, enforceable against them in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
SECTION 4.03. NO CONFLICT OR VIOLATION, ETC. Except as disclosed in
Schedule 4.03, the execution and delivery by Purchaser of this Agreement and the
Ancillary Agreements to which it is a party do not, and the consummation by
Purchaser of the transactions contemplated by this Agreement and of such
Ancillary Agreements and compliance with the provisions hereof and thereof will
not, (a) conflict with any of the provisions of any Articles of Incorporation or
Bylaws or other charter documents of Purchaser, (b) subject to the matters
referred to in the next sentence, conflict with, result in a breach of or
default (with or without notice or lapse of time, or both) under, give rise to a
right of termination, cancellation or acceleration of any obligation or loss of
a benefit under, require the consent of any person under, or result in the
creation of any Lien on any property or asset of Purchaser under, any indenture
or other agreement, permit, franchise, license or other instrument or
undertaking to which such Seller is a party or by which Purchaser or any of its
assets is bound or affected, or (c) subject to the matters referred to in the
next sentence, contravene any statute, law, ordinance, rule, regulation, order,
judgment, injunction, decree, determination or award applicable to Purchaser or
any of its properties or assets. No consent, approval or authorization of, or
declaration or filing with, or notice to, any Governmental Entity is required to
be obtained or made by or with respect to any of the Purchasers, in connection
with the execution and delivery of this Agreement by such Purchaser or the
consummation by Purchaser of the transactions contemplated hereby, except for
(i) the
41
particular filings, notices, consents, approvals, authorizations and
declarations set forth in Schedule 4.03.
SECTION 4.04. BROKERS. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated by
this Agreement based upon any contract, agreement, understanding or arrangement
made by or on behalf of Purchaser or any Affiliate of Purchaser.
SECTION 4.05. GAAP FINANCIAL STATEMENTS. Schedule 4.05 includes the
balance sheet of each Purchaser at December 31, 2000, and the income statements
of each Purchaser for the years ended December 31, 1998, 1999 and 2000, and
Schedule 4.05 is deemed to include the SEC Reports filed with the Securities and
Exchange Commission on the date of this Agreement and on the Closing Date will
be deemed to include the SEC Reports filed with the Securities and Exchange
Commission on the Closing Date (the "Purchaser GAAP Statements"). The Purchaser
GAAP Statements are in accordance with the books and records of Purchaser, have
been prepared in accordance with Accounting Principles (except with respect to
the omission of footnotes as to any unaudited Purchaser GAAP Statements) applied
on a consistent basis throughout the periods covered by such statements, and on
the Closing Date will fairly present the financial position of each such
Purchaser at the most recent balance sheet date included in such Purchaser GAAP
Statements and the results of the operation of such Purchaser for the periods
covered by such Purchaser GAAP Statements.
SECTION 4.06. DISCLOSURE. No representation or warranty of Purchasers in
this Agreement, nor any certificate, schedule, exhibit or written information
furnished to or to be
42
furnished by Purchasers pursuant to this Agreement or the Ancillary Agreements,
or any document or certificate delivered to Sellers by or on behalf of
Purchasers pursuant to this Agreement or the Ancillary Agreements, including the
SEC Reports, contains or will contain, on the date of such statement,
certificate, schedule, exhibit, document or SEC Report, any untrue statement of
material fact, or omits or will omit, on such date, a material fact necessary to
make the statements contained therein, in light of the circumstances in which
they are made, not misleading.
SECTION 4.07. ABSENCE OF CERTAIN CHANGES. Except as set forth on Schedule
4.07, since December 31, 2000 Purchasers have not in connection with its
business, (i) suffered any change constituting a Purchaser Material Adverse
Effect, or (ii) materially changed the accounting principles, operations,
practices or methods utilized with respect to its business.
ARTICLE V
OTHER AGREEMENTS
SECTION 5.01. CONDUCT OF BUSINESS. Except as contemplated by this
Agreement, during the period from the date of this Agreement to the Closing
Date, Sellers and Shareholders shall carry on the Business only in the ordinary
course of business. To the extent consistent therewith, Sellers and Shareholders
shall use their commercially reasonable best efforts to preserve intact the
current business organization of the Business, keep available the services of
the Business Employees and preserve the Businesses' relationships and goodwill
with Business Employees, Agents, brokers, intermediaries, customers,
agricultural producers, reinsurers, RMA, state insurance regulatory authorities
and others having business relationships with or interests in the Business.
Without limiting the generality of the foregoing, except as otherwise
contemplated by
43
this Agreement, during the period from the date of this Agreement to the Closing
Date, Sellers and Shareholders shall not, without the prior consent of
Purchaser:
(a) otherwise than in the ordinary course of business consistent
with past practice, (i) terminate, transfer or otherwise dispose of any
material assets which otherwise would be Transferred Assets, or (ii) enter
into, modify, waive any material provision of or otherwise or change in
any material respect any Assigned and Assumed Contract;
(b)(i) permit or allow any of the Transferred Assets to become
subject to any Liens, (ii) waive any material claims or rights relating to
the Business or (iii) grant any increase in the compensation or benefits
of, or amend, modify or establish any new Benefit Plan or plan of
compensation for Business Employees (including any increase in
compensation pursuant to any new or existing bonus, pension,
profit-sharing or other plan or commitment); other than in connection with
normal employee salary reviews or replacement of employees necessary to
run the Business;
(c) enter into or renew any Insurance Contract except in the
ordinary course of business in accordance with the underwriting policies,
procedures and guidelines relating to the Business in effect prior to the
date of this Agreement;
(d) other than in connection with normal reviews or planned
reduction of staff, or termination for cause, terminate the employment of
any Business Employees individually or in the aggregate material to
operation of the Business, or enter into any severance or termination
agreement or arrangement with any Business Employee except to the extent
required by law or Sellers' Benefit Plans;
44
(e) make any material change in the underwriting, reinsurance,
accounting, establishment of reserves, investment or claims adjustment
policies and practices of any of Sellers involving or relating to the
Business, including, without limitation, any change which has the effect
of materially accelerating the recording and billing of premiums or
accounts receivable or retarding the payment of expenses or establishing
reserves in connection with the Business, or has the effect of materially
altering, modifying or changing the historic operating, financial or
accounting practices or policies of Sellers involving or relating to the
Business;
(f) incur any indebtedness for borrowed money involving or relating
to the Business or any of the Transferred Assets, except in the ordinary
course of business;
(g) waive any rights or cancel or forgive any claims, debts or
accounts receivable that would otherwise be a Transferred Asset, except in
the ordinary course of business;
(h) take any action nor fail to take any action which would cause a
Sellers Material Adverse Effect; or
(i) commit or agree to take any of the foregoing actions.
SECTION 5.02. ACCESS TO INFORMATION; ASSISTANCE; CONFIDENTIALITY; RENEWAL
BUSINESS. Sellers and Shareholders shall afford, prior to Closing, Purchaser and
Purchasers' directors, officers, employees, legal counsel, retained financial
advisors, retained professional accountants and actuaries and other approved
representatives:
45
(a) Reasonable access during normal business hours to all Books and
Records including, but not limited to, the (i) Insurance Contracts,
Assigned and Assumed Contracts, the Database, Reinsurance Contracts and
all other Contracts and agreements relating to the Business or the
Transferred Assets, (ii) all records and information relating to Agents;
(iii) all information regarding Sellers' allocation among FCIC reinsurance
funds of Sellers' MPCI Policies for the 2001 MPCI Crop Year, and for the
2000, 1999 and 1998 MPCI Crop Years; and (iv) all personnel records
relating to Business Employees except as prohibited by law. During such
period, Sellers shall furnish as promptly as practicable to Purchaser such
information concerning the Business Agents, Business Employees,
Transferred Assets and all other subject matter of this Agreement as
Purchaser may from time to time reasonably request.
(b) Cooperation and assistance in understanding and interpreting the
Books and Records, particularly with respect to Agents, Business Employees
and 2001 MPCI Premium.
(c) Purchaser agrees that it will hold any information obtained from
Sellers and Shareholders pursuant to this Agreement and before the Closing
Date in confidence except as otherwise required by law, provided that
Purchaser shall immediately notify Sellers of any legal requirement that
Purchaser believes might require disclosure notwithstanding this clause
such that Sellers might take action to seek an injunction or protective
order in connection with such legal requirement.
(d) After the Closing Date and upon Purchaser's request, Sellers and
Shareholders shall cooperate with Purchaser as reasonably requested to
assist Purchaser
46
in responding to inquiries from Agents and regarding Insurance Contracts,
at no cost to Sellers.
SECTION 5.03. COMMERCIALLY REASONABLE EFFORTS.
(a) Upon the terms and subject to the conditions and other
agreements set forth in this Agreement, each of the parties agrees to use
commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with
the other parties in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable,
all transactions contemplated by this Agreement.
(b) Purchaser agrees to use commercially reasonable efforts to
deliver, or cause to be delivered, to IGF no later than 4:00 p.m., Central
time Thursday, May 24, 2001 the pre-acquisition notification forms for the
States of Arkansas, Illinois, Kentucky and Missouri.
SECTION 5.04. CONSENTS, APPROVALS AND FILINGS.
(a) Sellers, Shareholders and Purchaser will make all necessary
filings, if any, as soon as practicable, including any filing required
with the FCIC, under the HSR Act and under applicable state insurance
laws, in order to facilitate prompt consummation of the transactions
contemplated by this Agreement. In addition, Sellers, Shareholders and
Purchaser each will use commercially reasonable efforts (without the
payment of money, except for filing fees and professional fees, or the
commencement of litigation), and will cooperate fully with each other (i)
to comply as promptly as practicable with all
47
governmental requirements applicable to the transactions contemplated by
this Agreement and (ii) to obtain as promptly as practicable all necessary
consents, approvals, permits or authorizations of Governmental Entities,
including the FCIC and under the HSR Act and under applicable state
insurance laws, and consents or waivers of all third parties necessary or
advisable for the consummation of the transactions contemplated by this
Agreement. Each of Sellers and Purchaser shall use its reasonable best
efforts to provide such information and communications to Governmental
Entities regarding transactions contemplated by this Agreement as such
Governmental Entities may reasonably request; and
(b) Each of Sellers, Shareholders and Purchaser shall notify the
other party and keep it advised as to the status of all applications to,
and proceedings before, Governmental Entities in connection with the
transactions contemplated by this Agreement.
(c) Subject to Section 6.01 and Section 7.01 of this Agreement, to
the extent that the assignment or transfer or attempted assignment or
transfer to Purchaser of any Assigned and Assumed Contracts, Licensed
Software or any benefit arising thereunder or resulting therefrom is
prohibited by any Applicable Law or would require any governmental or
third party authorizations, approvals, consents or waivers and such
authorizations, approvals, consents or waivers shall not have been
obtained prior to the Closing, this Agreement shall not constitute a sale,
assignment, transfer, conveyance or delivery, or any attempted sale,
assignment, transfer, conveyance or delivery, thereof. Following the
Closing, the parties shall use reasonable best efforts, and cooperate with
each other, to obtain promptly such authorizations, approvals, consents or
waivers.
48
Pending such authorization, approval, consent or waiver, the parties shall
cooperate with each other in any mutually agreeable, reasonable and lawful
arrangements designed to provide to Purchaser substantially the same
economic benefits of any such Assigned and Assumed Contracts and Licensed
Software. Once authorization, approval, consent or waiver for the
assignment or transfer of any such Assigned and Assumed Contract or
Licensed Software not assigned, subleased or transferred at the Closing is
obtained, Sellers shall assign or transfer such Assigned and Assumed
Contract or Licensed Software to Purchaser at no additional cost.
SECTION 5.05. NOTIFICATIONS. After the date of this Agreement and prior to
Closing Sellers and Shareholders shall notify Purchaser and Purchaser shall
notify Sellers and Shareholders, and each shall keep the other promptly advised
as to (i) any litigation or administrative proceeding pending and known to it
or, to its knowledge, threatened which challenges or seeks to restrain or enjoin
the consummation of any of the transactions contemplated by this Agreement, (ii)
the breach of any representation or warranty of Sellers, Shareholders or
Purchaser, as the case may be, contained in this Agreement and (iii) any event,
condition, result or change that has resulted in or reasonably could be expected
to result in any Sellers Material Adverse Effect or Purchaser Material Adverse
Effect.
SECTION 5.06. FURTHER ASSURANCES. The parties shall execute the Ancillary
Agreements to which they are a party on the date of this Agreement or on the
Closing Date, as the case may be, as set forth in such agreements. On and after
the date of this Agreement and Closing Date, Sellers, Shareholders and Purchaser
shall take all reasonably appropriate action and execute any additional
documents, instruments or conveyances of any kind consistent with the negotiated
49
terms of this Agreement which may be reasonably necessary to carry out any of
the provisions of this Agreement or consummate any of the transactions
contemplated by this Agreement.
SECTION 5.07. EXPENSES. Except as otherwise specifically provided in this
Agreement, the parties to this Agreement each shall bear their respective
expenses incurred in connection with the preparation, execution and performance
of this Agreement and consummation of the transactions contemplated hereby,
including all fees and expenses of agents, representatives, counsel, financial
advisors, actuaries and accountants.
SECTION 5.08. EMPLOYEES AND EMPLOYEE BENEFITS.
(a) All Business Employees and the date of their employment, date of
birth, annual salary, total compensation for the 2000 calendar year,
Benefit Plan participation and election, job title, job location and the
immediate supervisor of each of them as of the date of this Agreement are
listed on Schedule 5.08. Schedule 5.08 also identifies each of the
Business Employees who is a party to any contract or agreement with any of
Sellers or Sellers' Affiliates, and each such employment contract or
agreement which is in writing is included in Schedule 3.05B. Purchaser
shall have the right, but not the obligation, to offer employment
effective as of the Closing Date to any or none of the Business Employees
as Purchaser chooses in its sole discretion. If Purchaser offers
employment to any of the Business Employees effective as of the Closing
Date pursuant to this Agreement, such offer shall be not less than the
salary in effect for such Business Employee on the date of this Agreement
and with benefits that are not less than those generally available to
Purchasers' employees on the date of this Agreement. Sellers and
Shareholders shall use commercially reasonable efforts to assist Purchaser
in hiring
50
Business Employees designated by Purchaser as Transferred Employees.
Sellers and Shareholders shall not offer other employment to any
Transferred Employee on or after the Closing Date without the prior
written consent of Purchaser. Any severance obligations to Business
Employees relating to the transactions contemplated hereby shall be borne
solely by Sellers.
(b) At Closing Sellers shall pay to all Transferred Employees
compensation for all accrued but not taken vacation, all accrued salary
and wages and all accrued bonuses. Nothing in this Agreement shall be
construed as limiting in any way the right of Purchaser after the Closing
Date to terminate the employment of any Transferred Employees, to change
his or her salary or wages, or to modify the benefits or other terms and
conditions of employment of any Transferred Employees.
(c) With respect to each Transferred Employee:
(i) Sellers and Sellers' Benefit Plans or Shareholders or
Shareholders' Benefit Plans, as the case may be, shall be
responsible for all claims of and sums due to the Transferred
Employees incurred on or prior to the Closing Date. For this
purpose, a claim is incurred when the medical or other service
giving rise to the claim is performed, except that in the case of
death or disability, a claim is incurred on the date of death or
date of disability as the case may be; and
(ii) Except as otherwise expressly provided in this Section
5.08, (A) Purchaser shall be responsible for, and shall indemnify
and hold harmless Sellers and Shareholders against, any actions,
claims or proceedings brought by or on behalf of any Transferred
Employee at any time with respect to any event occurring or
condition first arising after the Closing Date, and (B) Sellers and
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Shareholders shall be responsible for, and shall indemnify and hold
harmless Purchaser against, any actions, claims or proceedings
brought by or on behalf of any Transferred Employee at any time with
respect to any event occurring or condition existing on or prior to
the Closing Date.
(d) Sellers or Shareholders shall be responsible for all deferred
compensation due to Transferred Employees under Sellers' or Shareholders
deferred compensation plans with respect to services rendered prior to the
Closing Date by any Transferred Employee.
SECTION 5.09. DISCLOSURE SCHEDULES. Each party shall deliver to the other
party the schedules referenced in of this Agreement, together with copies of the
documents referred to therein, at the execution hereof.
SECTION 5.10. NOTICE OF BREACH. A party shall give detailed written notice
to the other party promptly upon Sellers' Knowledge or Purchaser's Knowledge, as
the case may be, of the occurrence of any event that would cause or constitute a
material breach of any representations or warranties of the notifying party
contained in this Agreement or in the schedules.
SECTION 5.11. UPDATE OF DISCLOSURE SCHEDULES. Sellers shall update
Schedules 3.05A, 3.05B, 3.07, 3.12A, 3.12B and 5.08 three (3) business days
before the Closing Date, and Sellers and Purchaser shall each have the right
from time to time after the date hereof to update or otherwise correct those and
all other schedules of the respective parties until the Closing Date. Any
updated or corrected schedule shall be promptly furnished by the party updating
or correcting the schedule to the other party, and the other party shall have
the right to review the updated or corrected schedule. If the party receiving
the updated or corrected schedule, after reasonable consultation with the other
party, determines in good faith that the items disclosed on
52
the updated schedules have or could reasonably be expected to have a Sellers
Material Adverse Effect or a Purchaser Material Adverse Effect, as the case may
be, Sellers or Purchaser, as the case may be, may terminate the Agreement and
neither party shall have any further obligations to the other hereunder, except
as otherwise provided in this Agreement.
SECTION 5.12. REAL ESTATE LEASES. On the date of this Agreement,
conditioned upon Closing and effective on the Closing Date, Sellers and
Purchaser shall enter into the lease set forth in Exhibit N with respect to the
premises located in Des Moines, Iowa listed on Schedule 3.24. On or before the
Closing Date, Sellers and Purchaser shall enter into the leases and lease
assignments set forth in Exhibit N with respect to all of the other premises
listed on Schedule 3.24 and Sellers shall use commercially reasonable efforts to
obtain such prior written consent of each of the lessors to the assignment, as
the case may be, of each of such premises to Purchaser as may be required and
shall provide copies of such written consents to Purchaser no later than the
Closing Date.
SECTION 5.13. REINSURANCE OBLIGATIONS AND NOTICES OF CANCELLATION.
(a) Sellers and Shareholders agree and acknowledge that Purchaser
shall have no obligations or liabilities of any kind to reinsurers with
respect to the 2001 MPCI Premium, including but not limited to,
obligations to cede premiums, make deposits or pay penalties or
forfeitures of any kind whatsoever, except pursuant to the Granite Re
Treaty.
(b) Sellers and Shareholders agree that they shall cancel effective
as of the Closing Date all Reinsurance Contracts with respect to the
Business and provide a copy of all cancellation notices to Purchaser at
Closing.
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SECTION 5.14. COMPUTER SOFTWARE. Prior to the Closing Date, Sellers shall
use commercially reasonable efforts to obtain such prior written consents as are
required for the assignment of the Owned Software and Assignable Licensed
Software pursuant to Section 3.13(b).
SECTION 5.15. NO SOLICITATION. Between the date of this Agreement and the
Closing or such earlier date as this Agreement is terminated pursuant to Section
10.01 hereof, neither Sellers or Shareholders will directly or indirectly,
through any Representative or otherwise, take any action to solicit, initiate,
seek, entertain, encourage or support any inquiry, proposal or offer from,
furnish any information to, or participate in any negotiations with, any third
party regarding any acquisition of the Sellers, any acquisition or consolidation
with or involving the Sellers, or any acquisition of any material portion of the
stock or assets of the Sellers, including the grant of any license to any
intellectual property of the Sellers. Shareholders and Sellers agree that any
such discussions and negotiations (other than discussions and negotiations with
Purchaser) in progress as of the date of this Agreement will be suspended until
the date this Agreement is terminated pursuant to Section 10.01 hereof, and that
neither Shareholders nor Sellers will accept or enter into any agreement,
arrangement or understanding regarding any such third party acquisition of
Sellers, the Business or any Transferred Assets from the date of this Agreement
until the date this Agreement is terminated pursuant to Section 10.01 hereof. If
Sellers or Shareholders or any of their Representatives receive any proposal or
communication regarding any third party acquisition transaction prohibited by
this section, Sellers immediately will notify Purchaser.
SECTION 5.16. POST-CLOSING ACCESS TO BOOKS AND RECORDS AND USE OF GENERAL
LEDGER INFORMATION.
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(a) Following the Closing Date, Purchaser shall afford, and will
cause its Affiliates to afford, to Sellers and Shareholders, their counsel
and their accountants, during normal business hours, reasonable access to
the Books and Records with respect to the period prior to the Closing Date
to the extent that such access may be reasonably required by Sellers and
Shareholders in connection with (i) the preparation of tax returns or in
connection with any audit, amended return, claim for refund or any
proceeding with respect thereto and (ii) the investigation, arbitration,
litigation and final disposition of any claims which may have been or may
be made against Sellers or Shareholders in connection with the Business or
which Sellers or Shareholders may make with respect to the Business.
(b) Notwithstanding any other provision of this Agreement to the
contrary, following the Closing Date Purchaser and Sellers shall each have
the right to use the portion of the Books and Records that consist of the
corporate and financial and accounting data recorded within the general
ledger system of the Sellers as it exists on the Closing Date. Promptly
after receipt of each written request from Sellers after Closing,
Purchaser shall provide Sellers a copy of such data in the format and
media as it exists in books and records of the Purchaser on the date of
such request.
(c) From the Closing Date, Purchaser will provide to Sellers a copy
of the FCIC monthly accounting report with respect to the SRA until the
FCIC determines that all premiums and claims have been settled and the
2000 Crop Year activity is closed; provided, however, if FCIC ceases to
provide such report to Purchaser, Purchaser shall have no obligation to
provide Sellers a copy of such report.
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(d) Prior to the fifth anniversary of the Closing Date, Purchaser
will not, and will cause its Affiliates to not, dispose of, alter or
destroy any such Books and Records and other materials without giving 30
days' prior notice to Sellers to permit them, at their expense, to
examine, duplicate or repossess such records, files, documents and
correspondence, except for FCIC claim files which Purchaser may dispose of
in accordance with its document retention policies applicable to such
claim files, consistently applied.
SECTION 5.17. EXCLUSIVE LICENSE AGREEMENT. On or before the Closing Date,
Sellers and Purchaser shall enter into the License Agreement in substantially
the form set forth in Exhibit G.
SECTION 5.18. DEVELOPMENTAL PRODUCTS. Following the Closing Date,
Purchaser shall use commercially reasonable efforts to obtain reimbursement from
the RMA for developmental costs incurred by Sellers related to the insurance
products known as GRIP, TimberPlus, and Sugar Beets Plus as of the date of this
Agreement. Purchaser will transfer to Sellers promptly after the receipt by
Purchaser of any funds received from the RMA on account of such products (or any
of them), and whether on account of developmental cost reimbursement, royalties,
or otherwise, an amount equal to the sum of (i) any such reimbursement it
receives from the RMA minus (ii) the amount determined by multiplying the amount
of time actually spent by Purchaser to seek and obtain such reimbursement times
$75 per hour or any fraction thereof, until such time as the gross aggregate
amount transferred by Purchaser to Sellers equals $190,000. After payment to
Sellers of an aggregate gross amount of $190,000 pursuant to this Section 5,18,
and except as specifically set forth in this Section 5.18, all of Sellers' and
Shareholders' right, title and interest in and to insurance products developed
completely or partially for submission to
56
RMA or any other purpose in conjunction with the Business shall be the exclusive
property of Purchaser, including without limitations the right to future
payments for maintaining royalties or otherwise.
SECTION 5.19. NONCOMPETITION AGREEMENTS.
(a) On the date of this Agreement, conditioned upon Closing and
effective on the Closing Date, each of the parties indicated in the
Noncompetition Agreements set forth in Exhibit I or Exhibit J to this
Agreement shall enter into such Noncompetition Agreements.
(b) As of the date of this Agreement, not fewer than 16 of the
Business Employees listed on Schedule 5.19(b) shall have entered into a
Retention and Noncompetition Agreement in the form set forth in Exhibit K.
SECTION 5.20. WAIVER OF RIGHT OF FIRST REFUSAL. Munich Reinsurance has
relinquished all rights and interests with respect to the purchase of any of
Sellers or any assets of Sellers.
SECTION 5.21. IGF'S CONTINUED ACCESS TO KEY EMPLOYEES. From and after the
Closing Date, IGF shall, upon reasonable notice to the Chief Executive Officer
of AICI, have access to such key Transferred Employees, including, without
limitation, Xxxx Xxxxx, Xxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxxx, as IGF
reasonably believes is necessary during normal business hours to (i) respond to
and defend the interests of IGF against claims, litigation, threats and
inquiries or (ii) assist in the preparation of required financial reports for up
to six months after the Closing Date; provided, however, that such access shall
not unduly disrupt the business of the Purchaser and IGF shall be required to
reimburse Purchaser for all expenses associated
57
with such access, including, without limitation, a per diem fee if out of state
travel is required based upon a pro rata allocation of the applicable
Transferred Employee's annual salary.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF THE PURCHASER
The obligations of Purchaser under this Agreement are subject to the
satisfaction on or prior to either the date of this Agreement, the Closing Date,
or both as specified in this Article VI of the following conditions.
SECTION 6.01. OTHER AGREEMENTS. The Ancillary Agreements, exhibits and
other agreements and instruments contemplated hereby and thereby to which any
Seller is a party shall have been duly executed and delivered by such Seller or
its Affiliates, as the case may be, on or before the Closing Date, and each of
such agreements and instruments shall be in full force and effect with respect
to Sellers or its Affiliates, as the case may be, on the Closing Date. Not fewer
than 16 of the Business Employees listed on Schedule 5.19(b) and Sellers shall
have duly executed and delivered at Closing a Retention and Noncompetition
Agreement and each of such agreements shall be in full force and effect on the
Closing Date.
SECTION 6.02. OTHER DOCUMENTS. The Purchaser shall have received such
other instruments and certificates as are to be delivered at Closing by Sellers
under Section 5.06 hereof and otherwise.
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SECTION 6.03. REPRESENTATIONS AND COVENANTS.
(a) The representations and warranties of Sellers in this Agreement
shall be true and correct in all material respects on and as of the date
of this Agreement, and on and as of the Closing Date with the same force
and effect as though made on and as of the Closing Date, except to the
extent that any such representation and warranty is made as of a
particular date, in which case such representation and warranty shall have
been true and correct as of such date and except to the extent that any
such statement is qualified as to materiality, in which case such
statement shall be true and correct in all material respects as of the
Closing Date or such time as may be specified in such statement;
(b) Sellers shall have performed or complied in all material
respects with all covenants and agreements required by this Agreement to
be performed or complied with by Sellers on or prior to the Closing Date;
and
(c) On the Closing Date, each of Sellers shall have delivered to
Purchaser a certificate of Sellers, dated as of the Closing Date and
signed by an executive officer of each of Sellers, as to the matters set
forth in this Section 6.04.
SECTION 6.04. NO MATERIAL ADVERSE CHANGE. Since December 31, 2000, there
shall have been no event or condition which individually or in the aggregate
resulted in or could reasonably be expected to adversely affect Purchaser's
ability to operate the Business after the Closing substantially as it is being
operated on the date of this Agreement, or which have a Sellers Material Adverse
Effect.
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SECTION 6.05. SECRETARY'S CERTIFICATE. Each of Sellers shall have
delivered to Purchaser a certificate of its secretary, dated as of the date of
this Agreement and as of the Closing Date, as to the resolutions of the Board of
Directors of such Sellers authorizing the execution, delivery and performance of
this Agreement and all Ancillary Agreements to which it is a party.
SECTION 6.06. LEGAL OPINION.
(a) The Purchaser shall have received an opinion of Ice Xxxxxx, or
other counsel reasonably acceptable to Purchaser, as special counsel to
Sellers and SIG (which opinion need not cover Goran even if such counsel
also represents Goran), in form and substance reasonably acceptable to
Purchaser, to the effect that:
(i) Each Seller and SIG is a corporation duly incorporated and
validly existing as such under the laws of the state of its
incorporation, and each Seller and Shareholder has the requisite
corporate power and authority to own, lease and operate its
properties as now owned, leased or operated and to conduct its
business as presently conducted.
(ii) Each Seller and SIG has the requisite corporate power and
authority to execute and deliver the Transfer Documents to which it
is a party, and the execution and delivery of the Transfer Documents
by each Seller and SIG have been duly authorized by all requisite
corporate action. Each of the Transfer Documents to which Sellers
and SIG are a party constitute valid and binding obligations of
Sellers and SIG, enforceable against each of them in accordance with
their respective terms. Except as is provided in the Agreement or
any Schedule or supplemental schedule thereto, Sellers and SIG are
not required to
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obtain any authorization, approval or consent of any governmental or
regulatory body or other authority under Federal or State law in
connection with the execution, delivery and performance by Sellers
or SIG of the Transfer Documents to which they are a party.
(iii) To such counsel's knowledge, and except as may be set
forth in the Agreement or any Schedule or supplemental schedule
thereto, there is no pending or threatened action, suit, claim,
investigation or proceeding before any judicial or governmental
authority that would question the validity of, or interfere with the
power or authority of any or all of Sellers and SIG to enter into,
and perform their respective obligations under the Transfer
Documents to which they are a party.
Such opinion may include assumptions, qualifications, exceptions,
and limitations generally applicable to opinions of this type, including
but not limited to a general qualification to the extent that the
enforceability of any provision of the aforementioned agreements or
instruments, or any rights pursuant to those agreements or instruments,
may be subject to or affected by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally. Counsel may except from its opinion (among other
exceptions generally applicable to opinions of this type) (i) any opinion
as to the availability of any equitable remedy upon any breach of any of
the covenants, warranties or other provisions contained in any of such
agreements or instruments or the validity or enforceability of any
provision in the Transfer Documents or any agreement or instrument related
thereto regarding noncompete or confidentiality restrictions or that
purports to prevent oral modification or waivers of any provisions thereof
and (ii) any opinion as to the applicability or effect of any fraudulent
61
transfer or similar law on the Transfer Documents or any transaction
contemplated thereby.
(b) The Purchaser shall have received an opinion of Xxxx Xxxxxxx, as
corporate counsel for IGFH and IGF, in form and substance reasonably
acceptable to Purchaser, to the effect that (1) the Transfer Documents are
sufficient to vest in and convey to Purchaser all right, title and
interest of Sellers in and to the Transferred Assets, and that upon
completion of the Closing, Purchaser will have good and marketable title
in such Transferred Assets; and (2) the execution and delivery by the
Sellers of the Transfer Documents to which they are a party, the
consummation of the transactions contemplated thereby and the performance
of their respective obligations thereunder (i) do not contravene any
provision of the respective certificate or articles of incorporation or
bylaws of the Sellers, (ii) will not result in the violation of any order,
writ, judgment, injunction or decree issued by any governmental or
judicial body to which any or all of the Purchasers or their respective
property is bound, (iii) will not constitute or otherwise result in a
breach or default under the provisions of any material indenture,
mortgage, loan agreement or other material contract to which any or all of
the Sellers or their respective property is bound or (iv) will not result
in the creation or imposition of any lien, security interest, charge or
other encumbrance pursuant to any applicable law, rule or statute or the
provisions of any material indenture, mortgage, loan agreement or other
material contract to which any or all of the Sellers or their respective
property is bound.
SECTION 6.07. Consents and Approvals. All filings and notices required to be
made prior to the Closing Date with, and all consents, approvals, authorizations
and declarations required to be obtained prior to the Closing Date from,
Governmental Entities, including but not limited to
62
the FCIC, RMA, the Indiana Department of Insurance, those required under the HSR
Act, those required under applicable state insurance laws and others set forth
in Schedules 3.03 and 4.03 hereto or any other third party, in connection with
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, and the SRA Assignment and Assumption
Agreement shall have been made or obtained (as the case may be), except for
those, the failure of which to be obtained or taken, individually or in the
whole, could not be reasonably expected to have a Sellers Material Adverse
Effect; provided, however, that such exception shall not apply with respect to
the consents, approvals, authorizations and declarations required to be obtained
with respect to the SRA Assignment and Assumption Agreement, under the HSR Act,
if any, and under applicable state insurance laws.
SECTION 6.08. NO INJUNCTIONS OR RESTRAINTS. No temporary restraining
order, preliminary or permanent injunction or other Order shall have been issued
by any Governmental Entity, nor shall any other legal restraint or prohibition
preventing, restricting or which is reasonably likely to prevent or restrict the
consummation of any of the transactions contemplated hereby, be in effect.
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF THE SELLERS
The obligations of Sellers under this Agreement are subject to the
satisfaction on or prior to either the date of this Agreement, the Closing Date,
or both as specified in this Article VII of the following conditions.
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SECTION 7.01. REPRESENTATIONS AND COVENANTS.
(a) The representations and warranties of Purchaser in this
Agreement shall be true and correct in all material respects on and as of
the date of this Agreement, and on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date, except
to the extent that any such representation and warranty is made as of a
particular date, in which case such representation and warranty shall have
been true and correct as of such date and except to the extent that any
such statement is qualified as to materiality, in which case such
statement shall be true and correct in all respects as of the Closing Date
or such time as may be specified in such statement;
(b) Purchaser shall have performed or complied in all material
respects with all covenants and agreements required by this Agreement to
be performed or complied with by Purchaser on or prior to the Closing
Date; and
(c) On the Closing Date, Purchaser shall have delivered to Sellers a
certificate of Purchaser, dated as of the Closing Date and signed by an
executive officer of Purchaser, as to the matters set forth in this
Section 7.01.
SECTION 7.02. NO MATERIAL ADVERSE CHANGE. Since the date of this
Agreement, there shall have been no event or condition which, individually or in
the aggregate, resulted in or could reasonably be expected to adversely affect
Purchaser's ability to consummate the transactions contemplated hereby or which
have had a Purchaser Material Adverse Effect.
SECTION 7.03. SECRETARY'S CERTIFICATE. Each of the Purchasers shall have
delivered to Sellers a certificate of its secretary or assistant secretary,
dated as of the date of this Agreement
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and as of Closing Date, as to the resolutions of the Board of Directors of such
Purchasers authorizing the execution, delivery and performance of this Agreement
and all Ancillary Agreements to which it is a party.
SECTION 7.04. LEGAL OPINION. The Sellers shall have received an opinion of
Xxxxx Xxxx LLP, as special counsel to Purchaser, in form and substance
reasonably acceptable to Sellers, to the effect that:
(a) Each Purchaser is a corporation duly incorporated and validly
existing as such under the laws of the state of its incorporation, and
each Purchaser has the requisite corporate power and authority under
applicable laws to own, lease and operate its properties as now owned,
leased or operated and to conduct its business as presently conducted.
(b) Each Purchaser has the requisite corporate power and authority
to execute and deliver the Transfer Documents to which it is a party, and
the execution and delivery of the Transfer Documents by Purchaser have
been duly authorized by all requisite corporate action. Each of the
Transfer Documents to which Purchaser is a party constitute valid and
binding obligations of Purchaser, enforceable against Purchaser in
accordance with their respective terms. Except as is provided in the
Agreement or any schedule or supplemental schedule thereto, Purchaser is
not required to obtain any authorization, approval or consent of any
governmental or regulatory body or other authority under Federal or State
law in connection with the execution, delivery and performance by
Purchaser of the Transfer Documents to which Purchaser is a party.
Such opinion may include assumptions, qualifications, exceptions, and
limitations generally applicable to opinions of this type, including but not
limited to a general qualification
65
to the extent that the enforceability of any provision of the aforementioned
agreements or instruments, or any rights pursuant to those agreements or
instruments, may be subject to or affected by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors
generally. Counsel may except from its opinion (among other exceptions generally
applicable to opinions of this type) (i) any opinion as to the availability of
any equitable remedy upon any breach of any of the covenants, warranties or
other provisions contained in any of such agreements or instruments or the
validity or enforceability of any provision in the Transfer Documents or any
agreement or instrument related thereto regarding noncompete or confidentiality
restrictions or that purports to prevent oral modification or waivers of any
provisions thereof and (ii) any opinion as to the applicability or effect of any
fraudulent transfer or similar law on the Transfer Documents or any transaction
contemplated thereby.
The Sellers shall have received an opinion of J. Xxxxxxx Xxxxxxxxxx, as
corporate counsel for Purchaser, in form and substance reasonably acceptable to
Sellers, to the effect the execution and delivery by Purchaser of the Transfer
Documents to which they are a party, the consummation of the transactions
contemplated thereby and the performance of their respective obligations
thereunder (i) do not contravene any provision of the respective certificate or
articles of incorporation or bylaws of Purchasers (ii) will not result in the
violation of any order, writ, judgment, injunction or decree issued by any
governmental or judicial body to which any or all of Purchasers or their
respective property is bound, (iii) will not constitute or otherwise result in a
breach or default under the provisions of any material indenture, mortgage, loan
agreement or other material contract to which any or all of Purchasers or their
respective property is bound or (iv) will not result in the creation or
imposition of any lien, security interest, charge or other
66
encumbrance pursuant to any applicable law, rule or statute or the provisions of
any material indenture, mortgage, loan agreement or other material contract to
which any or all of Purchasers or their respective property is bound.
SECTION 7.05. OTHER DOCUMENTS. The Sellers shall have received such other
instruments and certificates as are to be delivered under Section 5.06 as
Sellers may reasonably request.
SECTION 7.06. OTHER AGREEMENTS. The Ancillary Agreements, the Granite Re
Treaty and each of the other agreements and instruments contemplated hereby and
thereby to which Purchaser or any of its Affiliates is a party shall have been
duly executed and delivered by Purchaser or its Affiliates, as the case may be,
on or before the Closing Date and each of such agreements and instruments shall
be in full force and effect with respect to Purchaser or its Affiliates, as the
case may be, on the Closing Date.
SECTION 7.07. CONSENTS AND APPROVALS. All filings and notices required to
be made prior to the Closing Date with, and all consents, approvals,
authorizations and declarations required to be obtained prior to the Closing
Date, from Governmental Entities, including but not limited to the FCIC, RMA,
the Indiana Department of Insurance, those required under the HSR Act and others
set forth in Schedules 3.03 and 4.03 hereto or any other third party, in
connection with the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the SRA Assignment and Assumption
Agreement shall have been made or obtained (as the case may be), the failure of
which to be obtained or taken, individually or in the whole, could be reasonably
expected to have a Purchaser's Material Adverse Effect.
SECTION 7.08. NO INJUNCTIONS OR RESTRAINTS. No temporary restraining
order, preliminary or permanent injunction or other order or decree shall have
been issued by any
67
Governmental Entity nor shall any other legal restraint or prohibition
preventing, restricting or which is reasonably likely to prevent or restrict the
consummation of any of the transactions contemplated hereby be in effect.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
Except as set forth in this Article VIII, all representations and
warranties and covenants contained in this Agreement shall survive the Closing
and shall terminate and expire at the close of business on the date which is the
thirty-first day after the second anniversary date of the Closing Date;
provided, however, that the representations, warranties and covenants of Sellers
or Shareholders regarding Taxes or title to the Business and the Transferred
Assets shall survive for the applicable statute of limitation with respect to
any Tax or title defect, and that all representations, warranties and covenants
of Sellers and of Shareholders regarding claims or compliance matters asserted
by FCIC or RMA arising from or relating in whole or in part to the SRA and acts,
events or occurrences before Closing shall survive through the date that is
thirty-seven months from the date upon which the applicable FCIC claim file has
closed or the applicable FCIC policy year ended. If a claim for indemnification
shall be made with respect to any of the foregoing prior to the end of the
applicable period set forth in the preceding sentence, such representation,
warranty or covenant shall survive until such claim is satisfied, settled or
dismissed.
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ARTICLE IX
INDEMNIFICATION
SECTION 9.01. GENERAL INDEMNIFICATION OBLIGATION OF SELLERS. From and
after the Closing, Sellers will jointly and severally reimburse, indemnify and
hold harmless each Indemnified Purchaser Party against and in respect of any and
all damages, losses, liabilities, costs and expenses of every kind whatsoever
incurred or suffered by the Indemnified Purchaser Party that result from, relate
to or arise out of:
(a) any and all violations or alleged violations of the SRA arising
from or relating in whole or in part to acts, events or occurrences prior
to the Closing Date, including, but not limited to, FCIC or RMA compliance
determinations, civil or criminal actions, liquidated damages, penalties
and fines;
(b) any and all claims by any reinsurer with respect to any premiums
ceded, losses paid, representations made or other communications or
actions of any of Sellers;
(c) any and all liabilities and obligations of Sellers of any nature
whatsoever, except for the Assumed Liabilities;
(d) any misrepresentation, breach of warranty or nonfulfillment of
any agreement or covenant on the part of Sellers under this Agreement or
any Ancillary Agreement, or from any misrepresentation in or omission from
any certificate, schedule, statement, document or instrument furnished to
Purchaser pursuant hereto or in connection with the negotiation, execution
or performance of this Agreement; or
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(e) any and all actions, suits, claims, proceedings, investigations,
demands, assessments, audits, fines, judgments, costs and other expenses
(including, without limitation, reasonable legal fees and expenses)
incident to any of the foregoing or to the enforcement of this Section
9.01.
SECTION 9.02. GENERAL INDEMNIFICATION OBLIGATION OF PURCHASER. From and
after the Closing, Purchaser will reimburse, indemnify and hold harmless each
Indemnified Seller Party against and in respect of any and all damages, losses,
deficiencies, liabilities, costs and expenses of every kind whatsoever incurred
or suffered by the Indemnified Seller Party that result from, relate to or arise
out of:
(a) the Assumed Liabilities;
(b) any misrepresentation, breach of warranty or nonfulfillment of
any agreement or covenant on the part of Purchaser under this Agreement or
any Ancillary Agreement, or from any misrepresentation in or omission from
any certificate, schedule, statement, document or instrument furnished to
Sellers pursuant hereto or in connection with the negotiation, execution
or performance of this Agreement; and
(c) Any and all actions, suits, claims, proceedings, investigations,
demands, assessments, audits, fines, judgments, costs and other expenses
(including, without limitation, reasonable legal fees and expenses)
incident to any of the foregoing or to the enforcement of this Section
9.02.
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SECTION 9.03. METHOD OF ASSERTING CLAIMS, ETC.
(a) In the event that any claim or demand for which any of Sellers
would be liable to an Indemnified Purchaser Party hereunder is asserted
against or sought to be collected from an Indemnified Purchaser Party, the
Indemnified Purchaser Party shall promptly deliver to Sellers a Claim
Notice (including an estimated amount which shall not be conclusive of the
final amount of such claim and demand). From and after Closing Purchaser
shall also provide Sellers notice of RMA and FCIC compliance requests
under the SRA that relate to any matter prior to the Closing Date promptly
after receipt of such requests. Sellers shall have the Notice Period in
which to notify the Indemnified Purchaser Party whether Sellers dispute
their liability to the Indemnified Purchaser Party hereunder with respect
to such claim or demand and, notwithstanding any such dispute, whether or
not Sellers desire, at their sole cost and expense, to defend the
Indemnified Purchaser Party against such claims or demand.
(b) In the event Sellers notify the Indemnified Purchaser Party
within the Notice Period that Sellers desire to defend the Indemnified
Purchaser Party against such claim or demand then, except as hereinafter
provided, Sellers shall have the right to defend the Indemnified Purchaser
Party by appropriate proceedings, which proceedings shall be promptly
settled or prosecuted by them to a final conclusion in such a manner as to
avoid any risk of Indemnified Purchaser Party becoming subject to
liability for any other matter; provided, however, Sellers shall not,
without the prior written consent of the Indemnified Purchaser Party,
consent to the entry of any judgment against the Indemnified Purchaser
Party or enter into any settlement or compromise which does not include
complete, immediate, unconditional, general release by all claimants or
plaintiffs
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of the Indemnified Purchaser Party, in form and substance satisfactory to
the Indemnified Purchaser Party from all liability asserted or which could
have been asserted in respect of such claim or litigation. If any
Indemnified Purchaser Party desires to participate in, but not control,
any such defense or settlement, it may do so at its sole cost and expense.
(c)(i) If Sellers elect not to defend the Indemnified Purchaser
Party against such claim or demand, whether by not giving the Indemnified
Purchaser Party timely notice as provided above or otherwise, Purchaser
shall defend such claim or demand as if this Article IX did not apply. If
the Sellers shall not have assumed the defense of such claim or demand,
the Sellers shall have no liability with respect to any compromise or
settlement of such claims or demands effected without its written consent
(unless such consent shall have been unreasonably withheld, in which case
Sellers shall be liable to the same extent as if they had provided their
written consent). The Sellers shall not admit any liability with respect
to, or settle, compromise or discharge, such third party claim without the
Indemnified Purchaser Party's prior written consent (which consent shall
not be unreasonably withheld) unless (i) there is no finding or admission
of any violation of law or any violation of the rights of any person and
no effect on any other claims that may be made against the Indemnified
Purchaser Party, or (ii) the sole relief provided is monetary damages that
are paid in full by the Sellers.
(ii) In the event an Indemnified Purchaser Party should have a claim
against Sellers hereunder that does not involve a claim or demand being
asserted against or sought to be collected from it by a third party, the
Indemnified Purchaser Party shall promptly send a Claim Notice with
respect to such claim to Sellers. If Sellers do not notify the Indemnified
Purchaser Party within the Notice Period that Sellers dispute such claim,
the amount of such
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claim shall be conclusively deemed to be a liability of Sellers hereunder.
(d) The indemnities provided in this Agreement shall survive the
Closing but shall terminate when the applicable representation or warranty
terminates pursuant to Article VIII, except as to any item as to which the
person to be indemnified shall have, before the expiration of the
applicable period, previously made a claim by delivering a Claim Notice
(stating in reasonable detail the basis of such claim) to the Sellers. The
indemnity provided in this Article IX shall be the sole and exclusive
remedy of all Indemnified Purchaser Parties against the Sellers at law or
equity for any matter covered by Article IX.
(e) All claims for indemnification by an Indemnified Seller Party
under this Agreement shall be asserted and resolved under the procedures
set forth above substituting in the appropriate place "Indemnified Seller
Party" for "Indemnified Purchaser Party" and variations thereof and
"Purchaser" for "Sellers."
SECTION 9.04. PAYMENT
(a) Upon the determination of the liability under Section 9.03
hereof, the appropriate party shall pay to the other, as the case may be,
within 10 days after such determination, the amount conclusively deemed to
be a liability hereunder. Any indemnity amount conclusively deemed to be a
liability under Section 9.03 hereof shall be reduced by an amount equal to
any third party insurance proceeds realized by and paid to the indemnified
party. The indemnified party shall use its reasonable best efforts to make
insurance claims relating to any claim for which it is seeking
indemnification
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pursuant to Article IX; provided, that (i) the indemnified party shall not
be obligated to make such an insurance claim if the indemnified party in
its reasonable judgment believes that the cost of pursuing such an
insurance claim together with any correspondent increase in insurance
premiums or other chargebacks to the indemnified party would exceed the
value of the claim for which the indemnified party is seeking
indemnification pursuant to this Article IX and (ii) no indemnified party
shall be required to keep or maintain any particular level of insurance.
Upon the payment in full of any claim under this Article IX, the entity
making payment shall be subrogated to the rights of the indemnified party
against any person, firm or corporation with respect to the subject matter
of such claim.
SECTION 9.05. LIMITATIONS ON INDEMNIFICATION.
(a) Sellers shall be liable for indemnification payments under
Article IX of this Agreement only if the aggregate amount of all such
damages, claims, losses, liabilities and expenses (other than damages,
claims, losses, liabilities and expenses with respect to the title to the
Business and the Transferred Assets) exceeds $100,000.00 and then only to
the extent of such excess, subject to Section 9.05(d).
(b) Sellers shall have no liability for indemnification payments
under Article IX of this Agreement with respect to any claim or compliance
matter arising from or relating in whole or in part to Insurance Contracts
for the 2001 MPCI Crop Year, or any subsequent MPCI Crop Years, and acts,
events or occurrences before Closing that is first asserted by RMA or
FCIC, by request for information or otherwise, with respect to
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any reinsured claim closed more than thirty-nine months prior to the date
of that first assertion.
(c) Subject only to Section 9.05(d), the aggregate liability of
Sellers for indemnification payments under this Article IX shall not
exceed an amount equal to the sum of (i) Thirty-Six Million Four Hundred
Thousand Dollars ($36,400,000) minus (ii) the aggregate amounts paid to
the Purchaser pursuant to the indemnity provisions of the Granite Re
Treaty.
(d) None of the limitations set forth in Section 9.05 (a) or (c)
shall apply with respect to an indemnification obligation for claims by or
against Purchaser arising from or related to actual fraud committed by
Sellers, Shareholders or any of them.
SECTION 9.06. JOINT LIABILITY OF SHAREHOLDERS IN RESPECT OF DIVIDENDS. In
the event that Sellers shall pay a dividend to SIG on or before the third
anniversary of the Closing Date, then SIG shall, to the extent of the dividend
(but not exceeding $12,400,000 less the aggregate amount paid towards the
indemnity obligations of Sellers by Goran pursuant to the next sentence)
received by it, be liable jointly and severally with the Sellers for any
indemnification claim that arises hereunder. In the event that SIG shall,
following receipt of a dividend from Sellers and before the third anniversary of
the Closing Date, pay a dividend to its shareholders, including Goran, then
Goran shall to the extent of the dividend it received from SIG (but not
exceeding $12,400,000 less the aggregate amount paid towards the indemnity
obligations of Sellers by SIG pursuant to the previous sentence) be liable
jointly and severally with the Sellers and SIG for indemnification hereunder.
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ARTICLE X
TERMINATION PRIOR TO CLOSING
SECTION 10.01. TERMINATION. Notwithstanding any other provision contained
herein, this Agreement may be terminated at any time prior to the Closing Date:
(a) by mutual written consent of Sellers and Purchaser;
(b) by Purchaser or Sellers in accordance with Section 5.11 hereof;
(c) by either party, upon written notice to the other, if the
Closing Date shall not have occurred on or prior to June 30, 2001;
(d) by either party, upon written notice to the other, if a
Governmental Entity of competent jurisdiction shall have issued an
injunction, order or decree enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this Agreement, and such
injunction, order or decree shall have become final and nonappealable or
if a Governmental Entity has otherwise made a final determination that any
required regulatory consent would not be forthcoming; provided, however,
that the party seeking to terminate this Agreement pursuant to this clause
has used commercially reasonable efforts to remove such injunction, order
or decree;
(e) by Purchaser if any of Sellers or Shareholders (i) breaches or
fails in any material respect to perform or comply with any of its
material covenants and agreements contained herein or (ii) breaches any of
Sellers' or Shareholders' representations or warranties herein in any
material respect and such breach had, has or would be reasonably likely to
have a Sellers Material Adverse Effect and such breach has not been
remedied within ten (10) days after receipt of notice thereof from
Purchaser;
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(f) by Sellers if Purchaser (i) breaches or fails in any material
respect to perform or comply with any of its material covenants and
agreements contained herein or (ii) breaches any of Purchaser's
representations or warranties herein in any material respect and such
breach had, has or would be reasonably likely to have a Purchaser Material
Adverse Effect and such breach has not been remedied within ten (10) days
after receipt of notice thereof from Sellers;
(g) by Purchaser in accordance with the first paragraph of Article
III hereof;
(h) By Purchaser if the Purchaser in good faith reasonably believes
the sums due to FCIC arising from or related to RMA Special Investigations
Branch, Case Number S1B-2001-15:2000 Crop Year Multiple Peril Crop
Insurance Apple Claims will exceed $1,000,000.
SECTION 10.02. EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Purchaser or Sellers as provided in Section 10.01, this
Agreement shall forthwith become void and have no effect, and without any
liability or obligation on the part of Purchaser, Sellers or Shareholders, and
all rights and obligations of each party shall cease except that all rights and
obligations under Articles X and XI shall remain in full force and effect.
Nothing contained in this Section 10.02 shall relieve any party from its
obligations under the Confidentiality Agreement or from any liability resulting
from any willful and material breach of its representations, warranties,
covenants or agreements set forth in this Agreement.
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ARTICLE XI
GENERAL PROVISIONS
SECTION 11.01. PUBLICITY. Except as may otherwise be required by law or
the rules of applicable stock exchanges, no press release or public announcement
concerning this Agreement or the transactions contemplated hereby shall be made
by either Purchaser or any Seller or Shareholder without advance approval
thereof by the other party, which shall not be unreasonably withheld. The
parties hereto shall cooperate with each other in making any press release or
public announcement.
SECTION 11.02. DOLLAR REFERENCES. All dollar references in this Agreement
are to the currency of the United States of America.
SECTION 11.03. NOTICES. Any notice, request, instruction, legal process or
other document to be given hereunder shall be in writing and, shall be deemed to
have been duly given when delivered personally, when sent by confirmed cable,
telecopy, telegram or telex, when sent by overnight courier service or when
mailed by certified or registered mail, return receipt requested, with postage
prepaid to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
If to Purchaser: Acceptance Insurance Companies Inc.
Suite 600 North
000 Xxxxx 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
If to Sellers
or Shareholders: Xxxxxx International Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX
Attention: Chief Executive Officer
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Fax: (000) 000-0000
Any party may, by notice given in accordance with this Section 11.03 to
the other parties, designate another address or person for receipt of notices
hereunder provided that notice of such a change shall be effective upon receipt.
SECTION 11.04. ENTIRE AGREEMENt. This Agreement (including the Ancillary
Agreements, the other agreements contemplated hereby and thereby and the
exhibits and schedules hereto) contains the entire agreement among the parties
with respect to the subject matter hereof, superseding all prior or
contemporaneous contracts, agreements, understandings or arrangements, written
or oral of every kind whatsoever.
SECTION 11.05. WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by each of the parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right, power or
privilege, nor any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.
SECTION 11.06. GOVERNING LAW; CHOICE OF FORUM.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF IOWA, WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
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(b) EACH PARTY HERETO CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE
STATE OR FEDERAL COURTS LOCATED IN POTTAWATTAMIE COUNTY, IOWA (THE "CHOSEN
COURT") IN RESPECT OF ANY CLAIM ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTAINED IN OR CONTEMPLATED BY THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS, WHETHER IN TORT OR CONTRACT OR AT
LAW OR IN EQUITY AND SOLELY IN CONNECTION WITH SUCH CLAIMS, (i) WAIVES ANY
OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDINGS IN THE CHOSEN
COURT, (ii) WAIVES ANY OBJECTION THAT THE CHOSEN COURT IS AN INCONVENIENT
FORUM OR DOES NOT HAVE JURISDICTION OVER ANY PARTY HERETO AND (iii) AGREES
THAT SERVICE OF PROCESS UPON SUCH PARTY IN ANY SUCH ACTION OR PROCEEDING
SHALL BE EFFECTIVE IF NOTICE IS GIVEN IN ACCORDANCE WITH SECTION 11.03 OF
THIS AGREEMENT.
SECTION 11.07. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors,
permitted assigns, heirs and legal representatives. Neither this Agreement, nor
any of the rights, interests or obligations hereunder, may be assigned, in whole
or in part, by operation of law or otherwise by any party without the prior
written consent of the other parties hereto and any such assignment that is not
consented to shall be null and void; however, that Purchaser may assign any
rights, interests or obligations hereunder to any of its Affiliates without the
prior written consent of Sellers; provided, further, that in the event of any
such assignment that Purchaser shall remain liable with respect to its
obligations hereunder.
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SECTION 11.08. INTERPRETATION.
(a) Notwithstanding anything in this Agreement to the contrary, no
term or condition of this Agreement shall be construed to supersede,
restrict or otherwise limit any term or condition set forth in the SRA.
(b) The parties acknowledge and agree that they may pursue judicial
remedies at law or equity in the event of a dispute with respect to the
interpretation or construction of this Agreement. In the event that any
alternative dispute resolution procedure is provided for in any of the
Ancillary Agreements or any other agreement contemplated hereby or
thereby, and there is a dispute with respect to the construction or
interpretation of such Ancillary Agreement, the dispute resolution
procedure provided for in such Ancillary Agreement shall be the procedure
that shall apply with respect to the resolution of such dispute.
(c) For purposes of this Agreement, the words "hereof," "herein,"
"hereby" and other words of similar import refer to this Agreement as a
whole unless otherwise indicated. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." All words in the singular
shall be deemed to refer to the plural, and all words in the plural shall
be deemed to refer to the singular.
SECTION 11.09. NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement is
intended or shall be construed to give any person (including, but not limited
to, the employees of Sellers), other than the parties hereto, their successors
and permitted assigns, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
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SECTION 11.10. COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
SECTION 11.11. EXHIBITS AND SCHEDULES. The exhibits and the schedules to
this Agreement that are specifically referred to herein are a part of this
Agreement as if fully set forth herein. All references herein to Articles,
Sections, subsections, paragraphs, subparagraphs, clauses, exhibits and
schedules shall be deemed references to such parts of this Agreement, unless the
context shall otherwise require.
SECTION 11.12. HEADINGS. The headings in this Agreement are for reference
only, and shall not affect the interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
ACCEPTANCE INSURANCE COMPANIES
INC.
By /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
President
GORAN CAPITAL INC.
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name Xxxx X. Xxxxxx
----------------------------------
Title President and CEO
---------------------------------
XXXXXX INTERNATIONAL GROUP, INC.
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name Xxxx X. Xxxxxx
----------------------------------
Title Vice Chairman
---------------------------------
IGF HOLDINGS, INC.
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name Xxxx X. Xxxxxx
----------------------------------
Title Vice Chairman
---------------------------------
IGF INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name Xxxx X. Xxxxxx
----------------------------------
Title Vice Chairman, CEO, and President
---------------------------------
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