EXHIBIT 10(p) - MATERIAL CONTRACTS
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "Agreement") is entered into as of November
___, 1998, by and among National Western Life Insurance Company ("National
Western"), a Colorado insurance corporation, NWL Services, Inc. ("NWL
Services") a Nevada corporation, Alternative Benefit Management, Inc. ("ABM"),
a Nevada corporation, and American National Insurance Company ("American
National"), a Texas insurance corporation.
RECITALS
A. National Western and NWL Services intend to transfer assets to ABM
in exchange for stock of ABM and the assumption of certain liabilities of
National Western by ABM. American National will guarantee ABM's obligations
under this Agreement. American National and ANTAC, Inc. will
contemporaneously execute a separate exchange agreement with ABM. All of the
above-referenced transfers are intended to qualify under Section 351 of the
Internal Revenue Code.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants and undertakings contained herein, the parties hereto agree as
follows:
1. Definitions. In addition to any other defined terms contained in
this Agreement, the following definitions of terms shall govern this
Agreement, unless the context thereof specifically indicates a different
meaning:
(a) National Western Cash Contribution. The sum of $5,130,000.
(b) NWL Services Cash Contribution. The sum of $1,850,000.
(c) Effective Date. The date, which shall be no later than
November 23, 1998, on which: (i) National Western transfers the National
Western Cash Contribution and ABM assumes the Liabilities (as hereinafter
defined) and issues 2,500 shares of its Class A Preferred Stock (as
hereinafter defined) to National Western, and (ii) NWL Services transfers the
NWL Services Cash Contribution and ABM issues 18,500 shares of its Class B
Preferred Stock (as hereinafter defined) to NWL Services, in accordance with
the terms of this Agreement.
(d) Class A Preferred Stock. The Class A Preferred Stock of ABM,
the terms of which are more particularly described in the Articles of
Incorporation of Alternative Benefit Management, Inc. dated September 25,
1998, as amended as of the Effective Date (the "Articles").
(e) Class B Preferred Stock. The Class B Preferred Stock of ABM,
the terms of which are more particularly described in the Articles.
(f) Employee Benefit Program. The employment-related benefit
program of National Western known as the non-qualified defined benefit plan as
in effect as of October 1, 1998, as amended from time to time.
(g) Liabilities. All current and future obligations associated
with the Employee Benefit Program, which amounts, as set forth in Exhibit A,
would be of a future nature as if any such obligation were an obligation of
National Western.
(h) Securities Act. The Securities Act of 1933, as amended.
2. Agreements Regarding Transfers of Assets, Values, Assumption of
Liabilities, and Issuance of Class A Preferred Stock and Class B Preferred
Stock.
(a) Exchanges for Class A Preferred Stock and Class B Preferred
Stock. In exchange for stock as hereinafter described, National Western, NWL
Services, and ABM shall perform the following exchanges, and American National
shall make the following guaranty:
(i) National Western shall transfer the National Western Cash
Contribution to ABM for 2,500 shares of Class A Preferred Stock and the
assumption of the Liabilities by ABM and the performance by ABM of all of the
administration of the Employee Benefit Program. This administration shall
include, but is not limited to, any and all activities currently being
undertaken by National Western, or its Pension Committee, in the
administration of the Employee Benefit Program, as well as any additional
activities that may become necessary or proper for the proper administration
of the Employee Benefit Program; and
(ii) NWL Services shall transfer the NWL Services Cash
Contribution to ABM for 18,500 shares of Class B Preferred Stock.
(b) Guaranty by American National. For valuable consideration, the
receipt and adequacy of which are hereby acknowledged, American National
hereby irrevocably and unconditionally guarantees to National Western the full
and prompt payment and performance of the Liabilities and of ABM's obligations
under Section 7(b) hereof (the "Guaranteed Obligations").
3. Representations and Warranties of National Western. National
Western represents and warrants to ABM and American National that, as of the
date hereof and the Effective Date:
(a) Due Organization. National Western is a Colorado insurance
corporation duly organized and validly existing under the laws of Colorado and
has full corporate power and authority to execute, deliver, and perform this
Agreement.
(b) Due Authorization. The execution, delivery, and performance of
this Agreement have been and remain duly authorized by all necessary corporate
action and do not contravene any provision of National Western's articles of
incorporation or bylaws, as amended to date, or any law, regulation, rule,
decree, order, judgment, or contractual restriction binding on National
Western or its assets.
(c) Consents. All consents, licenses, authorizations, and
approvals of, and registrations and declarations with, any governmental
authority or regulatory body necessary for the due execution, delivery, and
performance of this Agreement have been obtained and remain in full force and
effect, and all conditions thereof have been duly complied with, and no other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required in connection with the execution, delivery, or
performance of this Agreement.
(d) Binding Obligation. This Agreement constitutes the legal,
valid, and binding obligation of National Western and is enforceable against
National Western in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium, conservatorship,
receivership, and other laws of general applicability relating to or affecting
creditors' rights, and to equitable principles of general application.
(e) No Litigation or Claims. There is no litigation pending or, to
National Western's knowledge, threatened, either individually or in the
aggregate which, if determined adversely to National Western would materially
and adversely affect its execution, delivery, or performance of this
Agreement.
(f) Class A Preferred Stock.
(i) National Western understands that the Class A Preferred
Stock has not been and will not be registered under the Securities Act or any
other securities laws or regulations. Accordingly, the Class A Preferred
Stock may not be offered, sold, transferred, pledged, hypothecated, or
otherwise disposed of, except in a transaction exempt from the registration
requirements of the Securities Act and any other applicable securities laws
and regulations.
(ii) National Western understands that neither ABM nor any
person representing ABM has made any representations with respect to ABM or
the offering or sale of the Class A Preferred Stock other than as set forth or
specifically referred to herein.
(iii) National Western has had access to such financial and
other information concerning ABM as National Western has deemed necessary in
connection with National Western's decision to purchase the Class A Preferred
Stock. National Western has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
purchase of the Class A Preferred Stock.
(iv) National Western is acquiring the Class A Preferred Stock
for its own account. National Western will not offer, sell, or transfer,
directly or indirectly, any Class A Preferred Stock except in transactions
exempt from the Securities Act and any other applicable securities laws and
regulations.
(v) National Western is not acquiring the Class A Preferred
Stock directly or indirectly with the assets of any employee benefit plan.
4. Representations and Warranties of NWL Services. NWL Services
represents and warrants to ABM that, as of the date hereof and the Effective
Date:
(a) Due Organization. NWL Services is a Nevada corporation duly
organized and validly existing under the laws of Nevada and has full corporate
power and authority to execute, deliver, and perform this Agreement.
(b) Due Authorization. The execution, delivery and performance of
this Agreement have been and remain duly authorized by all necessary corporate
action and do not contravene any provision of NWL Services's articles of
incorporation or bylaws, as amended to date, or any law, regulation, rule,
decree, order, judgment, or contractual restriction binding on NWL Services or
its assets.
(c) Consents. All consents, licenses, authorizations, and
approvals of, and registrations and declarations with, any governmental
authority or regulatory body necessary for the due execution, delivery, and
performance of this Agreement have been obtained and remain in full force and
effect, and all conditions thereof have been duly complied with, and no other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required in connection with the execution, delivery, or
performance of this Agreement.
(d) Binding Obligation. This Agreement constitutes the legal,
valid, and binding obligation of NWL Services and is enforceable against NWL
Services in accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium, conservatorship,
receivership, and other laws of general applicability relating to or affecting
creditors' rights, and to equitable principles of general application.
(e) No Litigation or Claims. There is no litigation pending or, to
NWL Services's knowledge, threatened, either individually or in the aggregate
which, if determined adversely to NWL Services would materially and adversely
affect its execution, delivery, or performance of this Agreement.
(f) Class B Preferred Stock.
(i) NWL Services understands that the Class B Preferred Stock
has not been and will not be registered under the Securities Act or any other
securities laws or regulations. Accordingly, the Class B Preferred Stock may
not be offered, sold, transferred, pledged, hypothecated, or otherwise
disposed of, except in a transaction exempt from the registration requirements
of the Securities Act and any other applicable securities laws and
regulations.
(ii) NWL Services understands that neither ABM nor any person
representing ABM has made any representations with respect to ABM or the
offering or sale of the Class B Preferred Stock other than as set forth or
specifically referred to herein.
(iii) NWL Services has had access to such financial and
other information concerning ABM as NWL Services has deemed necessary in
connection with NWL Services's decision to purchase the Class B Preferred
Stock. NWL Services has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
purchase of the Class B Preferred Stock.
(iv) NWL Services is acquiring the Class B Preferred Stock for
its own account and not with a view to or for sale in connection with a
distribution of the Class B Preferred Stock. NWL Services will not offer,
sell, or transfer, directly or indirectly, any Class B Preferred Stock except
in transactions exempt from the Securities Act and any other applicable
securities laws and regulations.
(v) NWL Services is not acquiring the Class B Preferred Stock
directly or indirectly with the assets of any employee benefit plan.
5. Representations and Warranties of ABM. ABM hereby represents and
warrants to National Western and NWL Services that, as of the date hereof and
the Effective Date:
(a) Due Organization. ABM is a Nevada corporation duly organized
and validly existing under the laws of Nevada and has full corporate power and
authority to execute, deliver, and perform this Agreement.
(b) Due Authorization. The execution, delivery, and performance of
this Agreement have been and remain duly authorized by all necessary corporate
action and do not contravene any provision of ABM's articles of incorporation
or by-laws, as amended to date, or any law, regulation, rule, decree, order,
judgment, or contractual restriction binding on ABM or its assets.
(c) Consents. All consents, licenses, authorizations, and
approvals of, and registrations and declarations with, any governmental
authority or regulatory body necessary for the due execution, delivery, and
performance of this Agreement have been obtained and remain in full force and
effect, and all conditions thereof have been duly complied with, and no other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required in connection with the execution, delivery, or
performance of this Agreement.
(d) Binding Obligation. This Agreement constitutes the legal,
valid, and binding obligation of ABM and is enforceable against ABM in
accordance with its terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership, and
other laws of general applicability relating to or affecting creditors'
rights, and to equitable principles of general application.
(e) No Litigation or Claims. There is no litigation pending or, to
ABM's knowledge, threatened, either individually or in the aggregate which, if
determined adversely to ABM, would materially and adversely affect the
issuance of its Class A Preferred Stock to National Western or Class B
Preferred Stock to NWL Services, the value of its Class A Preferred Stock or
Class B Preferred Stock, or its execution, delivery, or performance of this
Agreement.
(f) Right to Accept Transfers, Assume Liabilities, and Issue Class
A Preferred Stock and Class B Preferred Stock. ABM has the right, power, and
authority to (i) accept the National Western and NWL Services Cash
Contributions, (ii) assume and be liable for the Liabilities associated with
the Employee Benefit Program and, (iii) upon the receipt and assignment of the
Cash Contributions and the assumption of the Liabilities, to issue the Class A
Preferred Stock to National Western and Class B Preferred Stock to NWL
Services in exchange therefor, in accordance with the terms of this Agreement.
(g) Class A Preferred Stock.
(i) Assuming the accuracy of National Western's
representations and warranties and National Western's compliance with the
agreements set forth in Section 3 hereof, the sale of the Class A Preferred
Stock is exempt from registration under the Securities Act.
(ii) The Class A Preferred Stock has not been and will not be
registered under the Securities Act or any other securities laws or
regulations. The Class A Preferred Stock will be subject to certain
restrictions on the transferability thereof.
(h) Class B Preferred Stock.
(i) Assuming the accuracy of NWL Services's representations
and warranties and NWL Services's compliance with the agreements set forth in
Section 4 hereof, the sale of the Class B Preferred Stock is exempt from
registration under the Securities Act.
(ii) The Class B Preferred Stock has not been and will not be
registered under the Securities Act or any other securities laws or
regulations. The Class B Preferred Stock will be subject to certain
restrictions on the transferability thereof.
6. Representations and Warranties of American National. American
National hereby represents and warrants to National Western and NWL Services
that, as of the date hereof and the Effective Date:
(a) Due Organization. American National is a Texas insurance
corporation duly organized and validly existing under the laws of Texas and
has full corporate power and authority to execute, deliver, and perform this
Agreement.
(b) Due Authorization. The execution, delivery, and performance of
this Agreement have been and remain duly authorized by all necessary corporate
action and do not contravene any provision of American National's articles of
incorporation or by-laws, as amended to date, or any law, regulation, rule,
decree, order, judgment, or contractual restriction binding on American
National or its assets.
(c) Consents. All consents, licenses, authorizations, and approval
of, and registrations and declarations with, any governmental authority or
regulatory body necessary for the due execution, delivery, and performance of
this Agreement have been obtained and remain in full force and effect, and all
conditions thereof have been duly complied with, and no other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required in connection with the execution, delivery, or performance of this
Agreement.
(d) Binding Obligation. This Agreement constitutes the legal,
valid, and binding obligation of American National and is enforceable against
American National in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization, moratorium, conservatorship,
receivership, and other laws of general applicability relating to or affecting
creditors' rights, and to equitable principles of general application.
(e) No Litigation or Claims. There is no litigation pending or, to
American National's knowledge, threatened, either individually or in the
aggregate which, if determined adversely to American National, would
materially and adversely affect the performance of this Agreement.
7. Covenants Regarding Transaction, Liabilities, and Transfers of Class
A Preferred Stock.
(a) Decision To Enter into Transaction.
(i) National Western is a sophisticated investor. National
Western's decision to enter into this Agreement with ABM is based upon its
independent evaluation of the Class A Preferred Stock and the financial
condition of ABM. In entering into this Agreement, National Western has not
relied upon any oral or written information provided by ABM, other than the
representations and warranties of ABM contained herein. National Western
acknowledges that no officer, director, employee, agent, or representative of
ABM has been authorized to make, and that National Western has not relied
upon, any statements or representations other than those specifically
contained in this Agreement.
(ii) ABM is a sophisticated investor. ABM's decision to enter
into this Agreement with National Western is based upon its independent
evaluation of the transfer by National Western to it as provided hereunder of
the National Western Cash Contribution and the Liabilities. In entering into
this Agreement, ABM has not relied upon any oral or written information
provided by National Western, other than the representations and warranties of
National Western contained herein. ABM acknowledges that no officer,
director, employee, agent, or representative of National Western has been
authorized to make, and that ABM has not relied upon, any statements or
representations other than those specifically contained in this Agreement.
(b) Liabilities.
(i) In General. ABM covenants with National Western and their
respective successors and permitted assigns that, from and after the Effective
Date, ABM (A) shall be liable for the Liabilities associated with the Employee
Benefit Program and (B) shall indemnify, defend, and hold National Western and
their respective successors and permitted assigns harmless from same. ABM and
American National shall not secure or fund their obligations hereunder or take
any other action that would cause the Employee Benefit Program to be
considered funded or secured for purposes of the Employee Retirement Income
Security Act of 1974, as amended, or the Internal Revenue Code of 1986, as
amended.
(ii) ABM's Responsibility Regarding Payments of Liabilities
When National Western Is Insolvent.
Notwithstanding anything to the contrary herein:
(A) ABM (and American National if applicable) shall cease
payment of benefits to Employee Benefit Program participants and their
beneficiaries if National Western is Insolvent. National Western shall be
considered "Insolvent" for the purposes of this Agreement if: (1) National
Western is unable to pay its debts as they become due; or (2) National Western
is placed into receivership by the Colorado Department of Insurance or
ancillary receivership by any state in which National Western is licensed.
(B) At all times during the continuance of this
Agreement:
(1) The Board of Directors and Chief Executive
Officer of National Western have the duty to inform ABM in writing of National
Western's Insolvency. If a person claiming to be a creditor of National
Western alleges in writing to ABM that National Western has become Insolvent,
ABM shall determine whether National Western is Insolvent and, pending such
determination, ABM (and American National if applicable) shall discontinue
payment of benefits to Employee Benefit Program participants or their
beneficiaries.
(2) Unless ABM has actual knowledge of National
Western's Insolvency, or has received notice from National Western or a person
claiming to be a creditor alleging that National Western is Insolvent, ABM
shall have no duty to inquire whether National Western is Insolvent. ABM may
in all events rely on such evidence concerning National Western's solvency as
may be furnished to ABM and that provides ABM with a reasonable basis for
making a determination concerning National Western's solvency.
(3) If at any time ABM has determined that National
Western is Insolvent or has been notified by the Chief Executive Officer or
the Board of Directors of National Western that National Western is Insolvent,
ABM (and American National if applicable) shall discontinue payments to
Employee Benefit Program participants or their beneficiaries and shall
immediately remit the then fair market value of the Liabilities to National
Western. Nothing in this Agreement shall in any way diminish any rights of
Employee Benefit Program participants or their beneficiaries to pursue their
rights as general creditors of National Western with respect to benefits due
under the Employee Benefit Program or otherwise.
(C) Upon payment to National Western under Section
7(b)(ii)(B)(3) above, all obligations of ABM under this Agreement shall
terminate.
(c) American National Guarantee.
(i) American National's guaranty hereunder shall be an
absolute, continuing, irrevocable, and unconditional guaranty of payment and
performance, and not a guaranty of collection, and American National shall
remain liable on its obligations hereunder until the payment and performance
in full of the Guaranteed Obligations. No set-off, counterclaim, recoupment,
reduction, or diminution of any obligation, or any defense of any kind or
nature which ABM may have against National Western or any other party, or
which American National may have against ABM, National Western, or any other
party, shall be available to, or shall be asserted by, American National
against National Western or its successor or any part thereof or against
payment of the Guaranteed Obligations or any part thereof.
(ii) If American National becomes liable for the Guaranteed
Obligations, other than under this Agreement, such liability shall not be in
any manner impaired or affected hereby, and the rights of National Western
hereunder shall be cumulative of any and all other rights that it may ever
have against American National. The exercise by American National of any
right or remedy hereunder or under any other instrument, or at law or in
equity, shall not preclude the concurrent or subsequent exercise of any right
or remedy.
(iii) In the event of default by ABM in payment or
performance of the Guaranteed Obligations, or any part thereof, when such
Guaranteed Obligations become due, whether by their terms or otherwise,
American National agrees to promptly pay the amount due thereon to the
applicable beneficiary (subject to Section 7(b)(ii) hereof) under the Employee
Benefit Program or to National Western, without notice or demand in lawful
currency of the United States of America, and it shall not be necessary for
National Western, in order to enforce such payment by American National, first
to institute suit or exhaust its remedies against ABM or others liable for
such Guaranteed Obligations. Notwithstanding anything to the contrary
contained in this Agreement, American National hereby irrevocably subordinates
to the prior indefeasible payment in full of the Guaranteed Obligations, any
and all rights American National may now or hereafter have under this
Agreement or at law or in equity (including, without limitation, the law
subrogating American National to the rights of National Western) to assert the
claim against or seek contribution, indemnification or any other form of
reimbursement from ABM or any other party liable for payment of any or all of
the Guaranteed Obligations for the payment made by American National under or
in connection with this Agreement or otherwise.
(iv) If payment of any amount payable by ABM under the
Guaranteed Obligations is stayed upon the insolvency, bankruptcy, or
reorganization of ABM, all such amounts otherwise subject to payment under the
terms of the Guaranteed Obligations shall nonetheless be payable by American
National hereunder forthwith on demand by National Western.
(v) American National hereby agrees that its obligations
hereunder shall not be released, discharged, diminished, impaired, reduced, or
affected for any reason or by the occurrence of any event, including, without
limitation, one or more of the following events, whether or not with notice to
or the consent of American National: (A) the taking or accepting of
collateral as security for any or all of the Guaranteed Obligations or the
release, surrender, exchange, or subordination of any such collateral now or
hereafter securing any or all of the Guaranteed Obligations; (B) any partial
release of the liability of American National hereunder; (C) any disability of
ABM, or the dissolution, insolvency, or bankruptcy of ABM, American National,
or any other party at any time liable for the payment of any or all of the
Guaranteed Obligations; (D) any renewal, extension, modification, waiver,
amendment, or rearrangement of any or all of the Guaranteed Obligations or any
instrument, document, or agreement evidencing, securing, or otherwise relating
to any or all of the Guaranteed Obligations; (E) any adjustment, indulgence,
forbearance, waiver, or compromise that may be granted or given by National
Western to ABM, American National, or any other party ever liable for any or
all of the Guaranteed Obligations; (F) any neglect, delay, omission, failure,
or refusal of National Western to take or prosecute any action for the
collection of any of the Guaranteed Obligations or to foreclose or take or
prosecute any action in connection with any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the Guaranteed
Obligations; (G) the unenforceability or invalidity of any or all of the
Guaranteed Obligations or of any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the Guaranteed
Obligations; (H) any payment by ABM or any other party to National Western is
held to constitute a preference under applicable bankruptcy or insolvency law
or if for any other reason National Western is required to refund any payment
or pay the amount thereof to someone else; (I) the settlement or compromise of
any of the Guaranteed Obligations; (J) any change in the corporate existence,
structure, or ownership of ABM; or (K) any other circumstance which might
otherwise constitute a defense available to, or discharge of, ABM or American
National.
(d) Class A Preferred Stock.
(i) National Western agrees that if it decides to transfer all
or any part of its shares of Class A Preferred Stock to a third party, ABM may
in its sole discretion require (A) an investment letter, in form and substance
satisfactory to ABM, signed by National Western and such third party,
certifying as to the facts surrounding such transaction, and/or (B) a written
opinion of counsel (which shall not be at the expense of ABM), in form and
substance satisfactory to ABM, to the effect that such transaction will not
violate the Securities Act or any applicable state securities laws.
(ii) ABM agrees that if National Western decides to transfer
all or any part of its shares of Class A Preferred Stock to a third party, ABM
shall provide any and all information and documents reasonably requested by
National Western and shall otherwise reasonably cooperate with National
Western to ensure that any such transfer is made by National Western in
compliance with all applicable federal and state securities laws, rules, and
regulations.
8. Covenants Regarding Transaction and Transfers of Class B Preferred
Stock.
(a) Decision To Enter into Transaction.
(i) NWL Services is a sophisticated investor. NWL Services's
decision to enter into this Agreement with ABM is based upon its independent
evaluation of the Class B Preferred Stock and the financial condition of ABM.
In entering into this Agreement, NWL Services has not relied upon any oral or
written information provided by ABM, other than the representations and
warranties of ABM contained herein. NWL Services acknowledges that no
officer, director, employee, agent, or representative of ABM has been
authorized to make, and that NWL Services has not relied upon, any statements
or representations other than those specifically contained in this Agreement.
(ii) ABM is a sophisticated investor. ABM's decision to enter
into this Agreement with NWL Services is based upon its independent evaluation
of the transfer by NWL Services to it as provided hereunder of the NWL
Services Cash Contribution. In entering into this Agreement, ABM has not
relied upon any oral or written information provided by NWL Services, other
than the representations and warranties of NWL Services contained herein. ABM
acknowledges that no officer, director, employee, agent, or representative of
NWL Services has been authorized to make, and that ABM has not relied upon,
any statements or representations other than those specifically contained in
this Agreement.
(b) Class B Preferred Stock.
(i) NWL Services agrees that if it decides to transfer all or
any part of its shares of Class B Preferred Stock to a third party, ABM may in
its sole discretion require (A) an investment letter, in form and substance
satisfactory to ABM, signed by NWL Services and such third party, certifying
as to the facts surrounding such transaction, and/or (B) a written opinion of
counsel (which shall not be at the expense of ABM), in form and substance
satisfactory to ABM, to the effect that such transaction will not violate the
Securities Act or any applicable state securities laws.
(ii) ABM agrees that if NWL Services decides to transfer all or
any part of its shares of Class B Preferred Stock to a third party, ABM shall
provide any and all information and documents reasonably requested by NWL
Services and shall otherwise reasonably cooperate with NWL Services to ensure
that any such transfer is made by NWL Services in compliance with all
applicable federal and state securities laws, rules, and regulations.
9. Miscellaneous Provisions.
(a) Severability of Provisions. Any provision of this Agreement
which is illegal, invalid, prohibited, or unenforceable shall be ineffective
to the extent of such illegality, invalidity, prohibition, or unenforceability
without invalidating or impairing the remaining provisions hereof.
(b) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of National Western, NWL Services, ABM, and
American National and their respective successors and permitted assigns. No
party may assign its rights or delegate its obligations hereunder without the
prior written consent of the other parties; provided, however, that National
Western and NWL Services shall have the right to assign their rights and
delegate their obligations hereunder to a parent, any affiliate or subsidiary,
or to any successor by merger, reorganization, or acquisition of substantially
all of its assets, without ABM's consent.
(c) Sole Benefit. This Agreement and all of its provisions are for
the sole benefit of National Western, NWL Services, ABM, and American National
and their respective successors and permitted assigns. No third party shall
be a beneficiary of this Agreement, including with respect to any assets
transferred to ABM. In particular, this Agreement shall not grant any rights
or recourse to the employee participants or the beneficiaries thereof in
addition to those granted in the Employee Benefit Program.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which,
taken together, shall constitute one and the same instrument.
(e) Governing Law. This Agreement is made pursuant to, and shall
be construed and governed in accordance with, the laws of the State of Texas,
without regard to its conflict of laws provisions.
(f) Notices. Any notice or other communication hereunder with
respect to this Agreement shall be in writing and shall be deemed duly given
if delivered in person or sent by certified or registered mail or the
equivalent (with return receipt requested), or by overnight delivery service,
or by facsimile transmission, addressed as follows:
If to National Western:
National Western Life Insurance Company
000 Xxxx Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
If to NWL Services:
NWL Services, Inc.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxxxxx Xxxxxx
If to ABM:
Alternative Benefit Management, Inc.
Xxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
Attention: G. Xxxxxxx Xxxxxxxxxxxxx
If to American National:
American National Insurance Company
Xxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
The name, address, and/or facsimile number for any person to whom any notice
is to be sent may be changed by written notice given in the manner provided in
this Section.
(g) Exhibits. Exhibit A to this Agreement is incorporated herein
and made a part hereof.
(h) Amendment. This Agreement may be amended only by a written
instrument signed by National Western, NWL Services, ABM, and American
National. No amendment, modification, or release of the provisions of this
Agreement shall be established by conduct, custom, or course of dealing.
(i) Further Assurances. Subject to the terms and conditions of
this Agreement, each of the parties agrees to use its best efforts to do, or
cause to be done, all things necessary, proper, or advisable under applicable
laws and regulations to effect the transactions contemplated by this
Agreement, including, without limitation, the performance of such further acts
or the execution and delivery of such additional instruments or documents as
any party may reasonably request in order to carry out the purposes of this
Agreement and the transactions contemplated hereby.
(j) Confidentiality Provision. Each party hereto agrees that,
except as otherwise required by law, rule, regulation, or order, it shall keep
the contents of this Agreement and any information related to this Agreement
confidential and further agrees that it shall not generate or participate in
any publicity, publication, or media release, public announcement, or public
disclosure, whether oral or written, regarding this Agreement without the
prior written consent of the other parties. The provisions of the preceding
sentence shall not in any way limit any party's right to discuss any matters
relating to this Agreement with its respective regulators, consultants,
accountants, and attorneys.
(k) Section Headings. Section headings of this Agreement are
solely for convenience of reference and shall not be deemed a part of, nor
shall they govern the interpretation of any of the provisions in, this
Agreement.
(l) Entire Agreement. This Agreement, together with any separate
agreements specifically referenced herein, contains the entire agreement
between and among National Western, NWL Services, ABM, and American National
with respect to the subject matter hereof and supersedes all prior and
contemporaneous negotiations, arrangements, understandings, and agreements,
whether oral or written, express or implied, between and among them with
respect to the subject matter hereof. There are no written or oral
agreements, understandings, representations, or warranties between or among
the parties hereto other than those set forth herein.
IN WITNESS WHEREOF, National Western, NWL Services, ABM, and American
National have caused their names to be signed hereto as of the day and year
first written above.
NATIONAL WESTERN LIFE INSURANCE COMPANY, a
Colorado insurance corporation
By: /S/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Its: President and Chief Operating Officer
NWL SERVICES, INC., a Nevada corporation
By: /S/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Its: Vice President
ALTERNATIVE BENEFIT MANAGEMENT, INC., a Nevada
corporation
By: /S/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Its: Senior Vice President - Controller
AMERICAN NATIONAL INSURANCE COMPANY, a Texas
insurance corporation
By: /S/ X. Xxxxxxx Ferdinandsten
G. Xxxxxxx Xxxxxxxxxxxxx
Its: Senior Executive Vice President and Chief
Operating Officer
Exhibit A
Liabilities
The Liabilities valued as of October 1, 1998, are as follows:
Non-Qualified Defined Benefit Plan $ 4,880,000
The Liabilities transferred under the Non-Qualified Defined Benefit Plan
do not include the following:
(1) Any amounts attributable to retirement dates beyond age seventy (70)
have been retained by National Western;
(2) Any amounts attributable to aggregate average annual salary
increases exceeding 10% per year have been retained by National
Western; and
(3) Any amounts attributable to participants in the Employee Benefit
Program other than participants includable as of the Effective Date
have been retained by National Western.
