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EXHIBIT 10.24
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This Amended and Restated Stock Purchase Agreement (this "Agreement")
is entered into August 31, 2001, by and between GAINSCO, INC., a Texas
corporation ("Seller"), and Xxxxxxx X. Xxxx ("Buyer").
RECITALS:
WHEREAS, Seller purchased all of the outstanding shares (the "Shares")
of the capital stock of Tri-State, Ltd., a North Dakota corporation ("TSL"),
from Buyer and Xxxx X. Xxxxx ("Xxxxx") on January 7, 2000 (the "Original
Transaction"), and Seller is now the record and beneficial owner of all the
Shares;
WHEREAS, TSL is the record and beneficial owner of all of the
outstanding shares of the capital stock of each of Xxxx Xxxx Insurance, Inc. and
MDR/Motor Vehicle Driving Records (TSL, Xxxx Xxxx Insurance, Inc. and MDR/Motor
Vehicle Driving Records are referred to herein as the "Acquired Companies");
WHEREAS, prior to the making of this Agreement, TSL distributed all of
the outstanding shares of the capital stock of Midwest Casualty Insurance
Company ("MCIC") to Seller, and Seller is now the record and beneficial owner of
all of the outstanding shares of the capital stock of MCIC;
WHEREAS, both before and since the Original Transaction, Buyer has been
the President of TSL and in such capacity has a thorough familiarity with the
condition, operations and history of TSL and the other Acquired Companies;
WHEREAS, Seller desires to sell, and Buyer desires to purchase, all of
the Shares for the consideration and on the terms set forth in this Agreement;
and
WHEREAS, Buyer and Seller entered into a Stock Purchase Agreement dated
as of August 8, 2001 (the "August 8 Agreement") and desire to amend and restate
the August 8 Agreement to read in its entirety as set forth herein:
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements set forth and for other good and valuable consideration, the
adequacy, sufficiency and receipt of which are hereby acknowledged, the parties
agree that the August 8 Agreement is hereby amended and restated in its entirety
to read as follows:
ARTICLE I.
SALE AND TRANSFER OF SHARES; CLOSING
1.1 SHARES. Subject to the terms and conditions of this Agreement, at
the Closing (defined below), Seller will sell and transfer the Shares to Buyer,
and Buyer will purchase the Shares from Seller.
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1.2 PURCHASE PRICE. The purchase price to be paid by Buyer for the
Shares shall be equal to the sum of $935,000, payable in immediately available
funds via wire transfer.
1.3 CLOSING. The consummation of the purchase and sale (the "Closing")
provided for in this Agreement will take place at the offices of Xxxxxxx Xxxxxx
L.L.P., at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, at 10:00 a.m. (local
time) on a date (the "Closing Date") that is no later than five (5) days after
all conditions to Closing have been satisfied, or at such other time and place
as the parties may agree. Subject to the provisions of Article IV, failure to
consummate the purchase and sale provided for in this Agreement on the date and
time and at the place determined pursuant to this Section 1.3 will not result in
the termination of this Agreement and will not relieve any party of any
obligation under this Agreement. Notwithstanding anything to the contrary
contained herein, the Closing shall be deemed to have occurred and been
effective as of August 1, 2001 for all purposes.
1.4 CLOSING OBLIGATIONS. At the Closing:
(a) Seller will deliver to Buyer:
(i) certificates representing the Shares, duly endorsed (or
accompanied by duly executed stock powers), for transfer to Buyer;
(ii) a Mutual Release substantially in the form of Exhibit
1.4(a)(ii) attached hereto (the "Mutual Release") executed by Seller
and TSL;
(iii) an Assignment and Assumption Agreement substantially in the
form of Exhibit 1.4(a)(iii) attached hereto (the "Assignment") executed
by Seller and TSL; and
(iv) evidence that the Consent (defined in Section 2.1 below) has
been obtained.
(b) Buyer will deliver to Seller:
(i) The purchase price as set forth in Section 1.2;
(ii) the Mutual Release, executed by Buyer and Xxxxx;
(iii) the Assignment, executed by Buyer and Xxxxx; and
(iv) an Amended and Restated Agreement Regarding Reserve Adjustment
substantially in the form of Exhibit 1.4(b)(iv) attached hereto.
1.5 TELECOMMUNICATIONS EQUIPMENT. Seller shall allow TSL continued use
of the telecommunications equipment described on Schedule 1.6 attached hereto
(the "Telecom Equipment") for a period not to exceed 90 days following the date
of the Closing. Upon the earlier to occur of (i) receipt by Seller of written
notice from TSL that TSL no longer requires the Telecom Equipment or (ii) the
90th day following the date of the Closing, Buyer and TSL shall provide Seller
with reasonable cooperation and reasonable access to the premises on which the
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Telecom Equipment is located sufficient to allow Seller to remove the Telecom
Equipment in such a manner as to facilitate the preservation of the value of the
Telecom Equipment.
1.6 FURTHER ASSURANCES. At all times following the Closing, the parties
agree (i) to furnish upon request to each other such further information, (ii)
to execute and deliver to each other such other documents, and (iii) to do such
other acts and things, all as the other party may reasonably request for the
purpose of confirming the ownership of the Telecom Equipment and all the
outstanding capital stock of MCIC by Seller and the ownership of all the
outstanding capital stock of TSL by Buyer.
ARTICLE II.
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Shares and to take the other actions
required to be taken by Buyer at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Buyer, in whole or in part):
2.1 BANK CONSENT. The consent, waiver and release of Bank One, NA (the
"Consent") under its Revolving Credit Agreement with Seller and GAINSCO Service
Corp. dated November 13, 1998, as amended, and related collateral documents,
with respect to the transactions contemplated by this Agreement (the
"Transactions") must have been obtained and must be in full force and effect.
2.2 NO PROHIBITION. Neither the consummation nor the performance of any
of the Transactions will, directly or indirectly (with or without notice or
lapse of time) cause Buyer or any individual, corporation, general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, or other entity (any "Person") affiliated with Buyer
to suffer any material adverse consequence under, (a) any applicable federal,
state, local, municipal, foreign, international, multinational, or other
administrative order, constitution, law, ordinance, principle of common law,
regulation, statute, or treaty (any "Legal Requirement") or any award, decision,
injunction, judgment, order, ruling, subpoena, or verdict entered, issued, made,
or rendered by any court, administrative agency, or other Governmental Body
(defined below) or by any arbitrator (any "Order") or (b) any Legal Requirement
or Order that has been published, introduced, or otherwise proposed by or before
any Governmental Body. As used in this Agreement, "Governmental Body" means any
(i) nation, state, county, city, town, village, district, or other jurisdiction
of any nature; (ii) federal, state, local, municipal, foreign, or other
government; (iii) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity and
any court or other tribunal); (iv) multi-national organization or body; or (v)
body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory, or taxing authority or power of any
nature.
2.3 REGULATORY APPROVAL. Buyer shall have obtained the necessary
regulatory approvals in the states in which any of the Acquired Companies
operate to consummate the Transactions.
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2.4 CLOSING DELIVERIES. All items contemplated in Section 1.4(a) shall
have been delivered to Buyer.
ARTICLE III.
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's obligation to sell the Shares and to take the other actions
required to be taken by Seller at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Seller, in whole or in part):
3.1 CONSENTS. The Consent must have been obtained and must be in full
force and effect.
3.2 NO PROHIBITION. Neither the consummation nor the performance of any
of the Transactions will, directly or indirectly (with or without notice or
lapse of time) cause Seller or any Person affiliated with Seller to suffer any
material adverse consequence under, (a) any applicable Legal Requirement or
Order or (b) any Legal Requirement or Order that has been published, introduced,
or otherwise proposed by or before any Governmental Body.
3.3 REGULATORY APPROVAL. Seller shall have obtained the necessary
regulatory approvals in the states in which any of the Acquired Companies
operate to consummate the Transactions.
3.4 INSURANCE AGREEMENTS. The General Agency Agreement among MGA
Insurance Company, Inc., MCIC and TSL and the Quota Share Reinsurance Agreement
among MGA Insurance Company, Inc., MCIC, and Motors Insurance Corporation by
GMAC Re Corporation, each in form and substance acceptable to Seller in its sole
discretion, shall have been fully executed and delivered and shall remain in
full force and effect through the Closing.
3.5 CLOSING DELIVERIES. All items contemplated in Section 1.4(b) shall
have been delivered to Seller.
ARTICLE IV.
TERMINATION
4.1 TERMINATION EVENTS. This Agreement may, by notice given prior to or
at the Closing, be terminated:
(a) (i) by Buyer if any of the conditions in Article II has not been
satisfied as of the Closing Date or if satisfaction of such a condition is or
becomes impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition on or
before the Closing Date; or (ii) by Seller, if any of the conditions in Article
III has not been satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of Seller to
comply with its obligations under this Agreement) and Seller have not waived
such condition on or before the Closing Date;
(b) by mutual consent of Buyer and Seller; or
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(c) by either Buyer or Seller if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) on or before December
31, 2001, or such later date as the parties may agree upon.
4.2 EFFECT OF TERMINATION. Each party's right of termination under
Section 4.1 is in addition to any other rights it may have under this Agreement
or otherwise, and the exercise of a right of termination will not be an election
of remedies. If this Agreement is terminated pursuant to Section 4.1, all
further obligations of the parties under this Agreement will terminate, except
that the obligations in Section 5.1 will survive; provided, however, that if
this Agreement is terminated by a party because one or more of the conditions to
the terminating party's obligations under this Agreement is not satisfied as a
result of the other party's failure to comply with its obligations under this
Agreement, the terminating party's right to pursue all legal remedies will
survive such termination unimpaired.
ARTICLE V.
GENERAL PROVISIONS
5.1 EXPENSES. All costs and expenses incurred in connection with this
Agreement and the Transactions shall be paid by the party incurring such costs
and expenses.
5.2 ACKNOWLEDGEMENTS OF BUYER. Buyer has such knowledge and experience
in financial and business matters generally and the business and operations of
the Acquired Companies in particular as to be capable of evaluating the merits
and risks of purchasing the Shares. To the full satisfaction of Buyer, Buyer has
been furnished any materials Buyer has requested relating to the Acquired
Companies. Buyer is not relying upon any other information, representation or
warranty by Seller or any of its affiliates or their respective agents in
determining to purchase the Shares. Buyer has consulted to the extent deemed
appropriate by Buyer with Buyer's own advisers as to the financial, tax, legal
and related matters concerning the purchase of the Shares.
5.3 PUBLIC ANNOUNCEMENTS. Any public announcement or similar publicity
with respect to this Agreement or the Transactions will be issued, if at all, at
such time and in such manner as Seller determines. Unless consented to by Seller
in advance or required by Legal Requirements, prior to the Closing Buyer shall
keep this Agreement strictly confidential and may not make any disclosure of
this Agreement to any Person other than any professional advisors of Buyer.
Seller and Buyer will consult with each other concerning the means by which the
employees, customers, and suppliers of the Acquired Companies and MCIC and
others having dealings with the Acquired Companies and MCIC will be informed of
the Transactions, and Seller will have the right to be present for any such
communication.
5.4 NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or
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to such other addresses and telecopier numbers as a party may designate by
notice to the other parties):
If to Seller:
GAINSCO, INC.
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy of all notices to Seller and TSL to:
Xxxxxxx Xxxxxx L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
If to Buyer:
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx P.L.L.P.
X.X. Xxx 000
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
5.5 JURISDICTION; SERVICE OF PROCESS. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement shall be brought against any of the parties in the courts of the State
of Texas, County of Dallas, or, if it has or can acquire jurisdiction, in the
United States District Court for the Northern District of Texas, Dallas
Division, and each of the parties consents to the jurisdiction of such courts
(and of the appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the
world.
5.6 BEST EFFORTS; FURTHER ASSURANCES. Between the date of this
Agreement and the Closing Date, Buyer and Seller each shall use its best efforts
to cause the conditions to Closing for which it is responsible to be satisfied.
The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as the other party may reasonably
request for the
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purpose of carrying out the intent of this Agreement and the documents referred
to in this Agreement.
5.7 WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. The rights of Buyer and Seller hereunder are
in addition to all other rights provided by law. Neither the failure nor any
delay by any party in exercising any right, power, or privilege under this
Agreement or the documents referred to in this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement or the documents referred to in this
Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the other party;
(b) no waiver that may be given by a party will be applicable except in the
specific instance for which it is given; and (c) no notice to or demand on one
party will be deemed to be a waiver of any obligation of such party or of the
right of the party giving such notice or demand to take further action without
notice or demand as provided in this Agreement or the documents referred to in
this Agreement.
5.8 ENTIRE AGREEMENT AND MODIFICATION. This Agreement, together with
the other agreements described in Section 1.4, supersedes all prior agreements
between the parties with respect to its subject matter and constitutes (along
with the documents referred to in this Agreement) a complete and exclusive
statement of the terms of the agreement between the parties with respect to its
subject matter. This Agreement may not be amended except by a written agreement
executed by the parties hereto.
5.9 REPRESENTATION OF SELLER. Seller hereby represents to Buyer that,
subject to receipt of the Consent and the following sentence, Seller has all
right, power, authority, and capacity to execute and deliver this Agreement and
sell the Shares free and clear of encumbrances to Buyer on the terms set forth
herein.
5.10 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. Neither party
may assign any of its rights under this Agreement without the prior consent of
the other parties. Subject to the preceding sentence, this Agreement will apply
to, be binding in all respects upon, and inure to the benefit of the successors
and permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their successors and assigns.
5.11 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
5.12 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Texas without regard to conflicts of laws principles.
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5.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
[Intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
BUYER:
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
SELLER:
GAINSCO, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
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EXHIBIT 1.4(a)(ii)
MUTUAL RELEASE
This Mutual Release (this "Release"), by and among GAINSCO, INC., a
Texas corporation ("Seller"), Midwest Casualty Insurance Company ("MCIC"),
Tri-State, Ltd., a North Dakota corporation ("TSL"), Xxxx Xxxx Insurance, Inc.
("Hill Insurance"), MDR/Motor Vehicle Driving Records ("MDR"), Xxxxxxx X. Xxxx
("Buyer") and Xxxx X. Xxxxx ("Xxxxx") is made and entered into as of the 31st
day of August, 2001.
WHEREAS, Seller and Buyer entered into the Amended and Restated Stock
Purchase Agreement entered into on August 31, 2001 (the "2001 Purchase
Agreement") pursuant to which, among other things, Seller agreed to sell all of
the outstanding capital stock of TSL to Buyer;
WHEREAS, as a condition to the consummation of the transactions
contemplated by the Purchase Agreement, the parties are executing this Release.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and agreed, the parties agree as
follows:
1. RELEASE BY BUYER, XXXXX, TSL, HILL INSURANCE AND MDR. Each of Buyer,
Xxxxx, TSL, Xxxx Insurance and MDR does for itself, its subsidiaries, officers,
directors, shareholders, members, managers, employees, agents, xxxxxxxxxxxxxxx,
xxxxx, xxxxxxx, successors and assigns (all of the foregoing, other than the
named parties herein, are collectively referred to as "Buyer Related Parties")
hereby release, remise, acquit, satisfy, and forever discharge Seller, MCIC, and
the Seller Related Parties (defined in Section 2 below) of and from all, and all
manner of action and actions, cause and causes of action, suits, debts,
accounts, bills, interests, costs, agreements, damages, judgments, executions,
claims and demands whatsoever, in law or in equity, whether now existing or
hereafter arising, known or unknown (collectively, "Claims") including without
limitation Claims relating to, arising from, or in connection with the Stock
Purchase Agreement dated as of November 17, 1999 among Seller, Buyer, Xxxxx and
TSL (as amended, the "Original Purchase Agreement"), the Employment Agreement
dated as of January 7, 2000 among TSL, Buyer and Seller (the "Hill Agreement"),
the Employment Agreement dated as of January 7, 2000 among TSL, Xxxxx and Seller
(the "Xxxxx Agreement," and together with the Hill Agreement, the Original
Purchase Agreement and the other ancillary documents executed in connection
therewith, the "Original Transaction Documents") or the transactions
contemplated in any of the Original Transaction Documents (the "Original
Transactions"); provided, however, that nothing in this Section shall be
interpreted as releasing Seller, MCIC or any of the Seller Related Parties from
any Claim arising under or in connection with (i) the 2001 Purchase Agreement;
(ii) the General Agency Agreement dated to be effective as of August 1, 2001
among MGA Insurance Company, MCIC and TSL; (iii) the Assignment and Assumption
Agreement dated to be effective as of August 1, 2001 among Buyer, Seller, TSL
and Xxxxx; (iv) the Agreement Regarding Reserve Adjustment dated to be effective
as of August 1, 2001 between Buyer and Seller or (v) this Release (the foregoing
documents collectively, the "2001 Transaction Documents").
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2. RELEASE BY SELLER AND MCIC. Each of Seller and MCIC does for itself,
its subsidiaries, officers, directors, shareholders, members, managers,
employees, agents, xxxxxxxxxxxxxxx, xxxxx, xxxxxxx, successors and assigns (all
of the foregoing, other than the named parties herein, are collectively referred
to as "Seller Related Parties") hereby release, remise, acquit, satisfy, and
forever discharge Buyer, Xxxxx, TSL, Hill Insurance, MDR and the Buyer Related
Parties of and from all, and all manner of Claims, including without limitation
Claims relating to, arising from, or in connection with the Original Transaction
Documents and the Original Transactions; provided, however, that nothing in this
Section shall be interpreted as releasing Buyer, Xxxxx, TSL, Xxxx Insurance and
MDR or any of the Buyer Related Parties from any Claim arising under or in
connection with any of the 2001 Transaction Documents; and provided, further,
that nothing in this Section shall be interpreted as releasing Xxxxx from any
Claim arising under or in connection with the Xxxxx Employment Agreement or
Section 5.13 of the Original Purchase Agreement.
3. DISMISSAL OF CLAIM. Seller shall, as promptly as practicable
following the full execution of this Release, file the appropriate papers with
the Court to cause all claims and causes of action pending in Cause No.
01-4660-E, GAINSCO, INC. v. Xxxxxxx X. Xxxx, in the 000xx Xxxxxxxx Xxxxx xx
Xxxxxx Xxxxxx, Xxxxx to be dismissed with prejudice.
4. TERMINATION OF EMPLOYMENT AGREEMENT; RESIGNATION. The Hill Agreement
is hereby terminated. Each of Hill and Xxxxx, respectively, hereby resigns from
all positions they hold with MCIC.
5. MISCELLANEOUS.
(a) This Release will be governed by the laws of the State of Texas
without regard to conflicts of laws principles. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this Release
shall be brought against any of the parties in the courts of the State of Texas,
County of Dallas, or, if it has or can acquire jurisdiction, in the United
States District Court for the Northern District of Texas, Dallas Division, and
each of the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred to
in the preceding sentence may be served on any party anywhere in the world.
(b) This Release and the other 2001 Transaction Documents embody the
entire agreement and understanding between the parties hereto relating to the
subject matter hereof and supersede any prior agreements and understandings
relating to the subject matter hereof. The parties hereto have not relied upon
any promise, warranty or representation, either oral or written, other than as
stated in this Release or the other 2001 Transaction Documents.
(c) This Release may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which collectively shall
constitute one and the same instrument representing this Release between the
parties hereto and it shall not be necessary for the proof of this Release that
any party produce or account for more than one such counterpart.
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(d) This Release may be amended, modified or superseded, and
any of the terms, covenants, representations, warranties or conditions hereof
may be waived, but only by a written instrument executed by each party hereto.
No waiver of any nature, in any one or more instances, shall be deemed to be or
construed as a further or continued waiver of any condition or any breach of any
other term, covenant, representation or warranty in this Release.
(e) If any provision of this Release is held to be illegal,
invalid or unenforceable under present or future laws effective during the
effective period of this Release, such provision shall be fully severable; this
Release shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Release; and the
remaining provisions of this Release shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Release. Furthermore, in lieu of each illegal, invalid
or unenforceable provision there shall be added automatically as part of this
Release a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
(f) This Release shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Neither this Release nor any right created hereby or in any agreement entered
into in connection with the transactions contemplated hereby shall be assignable
by any party hereto.
(g) The section headings contained in this Release are
inserted for convenience of reference only and shall not affect the meaning or
interpretation of this Release.
[Intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned parties have executed this Mutual
Release in one or more counterparts as of the day and year first above written.
GAINSCO, INC.
By:
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Name:
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Title:
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MIDWEST CASUALTY INSURANCE COMPANY
By:
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Name:
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Title:
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TRI-STATE, LTD.
By:
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Name:
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Title:
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XXXX XXXX INSURANCE, INC.
By:
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Name:
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Title:
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MDR/MOTOR VEHICLE DRIVING RECORDS
By:
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Name:
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Title:
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XXXXXXX X. XXXX
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XXXX X. XXXXX
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EXHIBIT 1.4(a)(iii)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Assignment and
Assumption Agreement"), is made and entered into on the 31st day of August, 2001
to be effective as of August 1, 2001 by and among GAINSCO, INC., a Texas
corporation ("Seller"), Tri-State, Ltd., a North Dakota corporation ("TSL"),
Xxxxxxx X. Xxxx ("Buyer") and Xxxx X. Xxxxx ("Xxxxx").
WHEREAS, Seller desires to assign to Buyer Seller's rights under (i)
Section 5.13 of the Stock Purchase Agreement dated as of November 17, 1999 among
Seller, Buyer, Xxxxx and TSL, as amended, and (ii) the Employment Agreement
dated as of January 7, 2000 among TSL, Xxxxx and Seller (collectively, the
"Rights");
WHEREAS, Xxxxx and TSL desire to consent to the assignment of the
Rights by Seller.
NOW, THEREFORE, the parties, for good and valuable consideration,
hereby agree as follows:
1. ASSIGNMENT. Seller hereby assigns unto Buyer the Rights and Buyer
hereby accepts the assignment of and assumes the Rights.
2. NO WARRANTIES. Buyer acknowledges that Seller is making no
representation or warranty, express or implied, with respect to the
enforceability of the Rights or the validity of the assignment of the Rights as
contemplated in this Assignment and Assumption Agreement.
3. CONSENT TO ASSIGNMENT. Xxxxx and TSL hereby consent to assignment of
the Rights by Seller to Buyer.
4. COUNTERPARTS. This Assignment and Assumption Agreement may be
executed in any number of counterparts, and each counterpart hereof shall be
deemed to be an original instrument, but all such counterparts shall constitute
but one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption Agreement as of the date first above written.
GAINSCO, INC.
By:
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Title:
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TRI-STATE, LTD.
By:
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Title:
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XXXXXXX X. XXXX
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XXXX X. XXXXX
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EXHIBIT 1.4(b)(iv)
AMENDED AND RESTATED AGREEMENT
REGARDING RESERVE ADJUSTMENT
This Amended and Restated Agreement Regarding Reserve
Adjustment (this "Agreement") is entered into August 31, 2001 to be effective as
of August 1, 2001, by and between GAINSCO, INC., a Texas corporation ("Seller"),
and Xxxxxxx X. Xxxx ("Buyer").
WHEREAS, Seller desires to sell, and Buyer desires to purchase, all of
the outstanding shares (the "Shares") of the capital stock of Tri-State, Ltd., a
North Dakota corporation ("TSL"), for the consideration and on the terms set
forth in the Amended and Restated Stock Purchase Agreement entered into August
31, 2001 between Buyer and Seller (the "2001 Purchase Agreement");
WHEREAS, Buyer and Seller entered into an Agreement Regarding Reserve
Adjustment dated as of August 8, 2001 (the "August 8 Reserve Agreement"); and
desire to amend and restate the August 8 Reserve Agreement in its entirety as
set forth herein; and
WHEREAS, Seller would not have entered into the 2001 Purchase Agreement
or otherwise have agreed to sell the Shares to Buyer if Buyer had not agreed to
perform its obligations under this Agreement.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements set forth and for other good and valuable consideration, the
adequacy, sufficiency and receipt of which are hereby acknowledged, the parties
agree that the August 8 Reserve Agreement is hereby amended and restated in its
entirety as follows:
1. RESERVE ADJUSTMENT. Based on Seller's reserve analyses
completed for calendar year 2002, a calculation of the reserve adjustment for
increases (compared to the amounts therefor set forth on the audited TSL balance
sheet at December 31, 1999) in ultimate estimated liabilities relating to 1999
and prior accident years (the "Reserve Adjustment Increase Amount") will be
completed. Following completion of the calculation, Buyer will tender
immediately available funds to Seller in an amount equal to the Reserve
Adjustment Increase Amount within 30 days after receiving written request
therefor from Seller. In the event that the Reserve Adjustment Increase Amount
would otherwise be a negative number, the Reserve Adjustment Increase Amount
shall be deemed to be zero.
2. JURISDICTION; SERVICE OF PROCESS. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of, this
Agreement shall be brought against any of the parties in the courts of the State
of Texas, County of Dallas, or, if it has or can acquire jurisdiction, in the
United States District Court for the Northern District of Texas, Dallas
Division, and each of the parties consents to the jurisdiction of such courts
(and of the appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the
world.
3. ENTIRE AGREEMENT AND MODIFICATION. This Agreement
supersedes all prior agreements between the parties with respect to its subject
matter and constitutes (along with the 2001 Purchase Agreement and the documents
referred to therein) a complete and exclusive
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statement of the terms of the agreement between the parties with respect to its
subject matter. This Agreement may not be amended except by a written agreement
executed by the parties hereto.
4. ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. Neither
party may assign any of its rights under this Agreement without the prior
consent of the other parties. Subject to the preceding sentence, this Agreement
will apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred
to in this Agreement will be construed to give any Person other than the parties
to this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
5. SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
6. GOVERNING LAW. This Agreement will be governed by the laws
of the State of Texas without regard to conflicts of laws principles.
7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GAINSCO, INC.
By:
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Title:
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XXXXXXX X. XXXX
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