Asset Purchase Agreement - Private Business Insurance LLC, Private Business Inc. and InsurManaager LLC
ASSET PURCHASE AGREEMENT
between
Private Business Insurance, LLC
the "Seller"
Private Business, Inc.
"PBI"
and
InsurManager, LLC
the "Buyer"
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TABLE OF CONTENTS
ARTICLE I. PURCHASE AND SALE...................................................1
1.1 Purchase and Sale................................................1
1.2 Excluded Assets..................................................2
ARTICLE II. ASSUMED CONTRACTS AND LIABILITIES..................................3
2.1 Assumed Contracts, Leases and Liabilities........................3
ARTICLE III. PURCHASE PRICE; TAX PROVISIONS....................................3
3.1 Purchase Price...................................................3
3.2 Tax Provisions...................................................3
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER...........................5
4.1 Organization, Qualification and Authority........................5
4.2 Absence of Default...............................................5
4.3 Board Authorization..............................................5
4.4 Legality and Enforceability......................................6
4.5 Litigation.......................................................6
4.6 Consents and Approvals...........................................6
4.7 Contracts and Commitments........................................6
4.8 Taxes............................................................6
4.9 Pension, Employees...............................................6
4.10 Customers; Accounts..............................................8
4.11 Ownership of Properties..........................................8
4.12 Intellectual Property............................................8
4.13 Licensure; Compliance with Laws, Regulations and Court Orders....8
4.14 Insurance........................................................8
4.15 Broker's or Finder's Fee.........................................8
4.16 Disclosure.......................................................8
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER.............................9
5.1 Organization, Qualification and Authority........................9
5.2 Absence of Default...............................................9
5.3 Board and Shareholder Authorization..............................9
5.4 Non-contravention; Consents......................................9
5.5 Legality and Enforceability......................................9
5.6 Litigation.......................................................9
5.7 No Restrictions..................................................9
5.8 No Broker.......................................................10
5.9 Other Matters...................................................10
ARTICLE VI. COVENANTS OF PARTIES..............................................10
6.1 Ownership of Intellectual Property..............................10
6.2 Co-Marketing Agreement..........................................10
6.3 Transitional Services Agreement.................................10
6.4 Buyer's Advance Knowledge.......................................10
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6.5 Third Party Consents............................................10
6.6 COBRA Rights....................................................10
ARTICLE VII. CLOSING..........................................................11
7.1 Closing.........................................................11
ARTICLE VIII. SELLER'S CONDITIONS TO CLOSE....................................11
8.1 Representations and Warranties True at Closing; Compliance
with Agreement.............................................11
8.2 No Action/Proceeding............................................11
8.3 Co-Marketing and Transitional Services Agreement................11
8.4 Payment of the Purchase Price...................................11
ARTICLE IX. BUYER'S CONDITIONS TO CLOSE.......................................11
9.1 Representations and Warranties True at Closing; Compliance
with Agreement.............................................11
9.2 Due Diligence...................................................12
9.3 Documentation...................................................12
9.4 Lender Consent and Release......................................12
9.5 Board Approval..................................................12
9.6 No Action/Proceeding............................................12
ARTICLE X. OBLIGATIONS OF SELLER AT CLOSING...................................12
10.1 Documents Relating to Assets....................................12
10.2 Possession......................................................12
10.3 Corporate Good Standing and Corporate Resolutions...............12
10.4 Additionally Requested Documents; Post Closing Assistance.......13
ARTICLE XI. OBLIGATIONS OF BUYER AT CLOSING...................................13
11.1 Purchase Price..................................................13
11.2 Assumption of Liabilities.......................................13
11.3 Corporate Good Standing and Board Resolutions...................13
ARTICLE XII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES PROVISIONS AND
INDEMNIFICATION............................................13
12.1 Survival........................................................13
12.2 Indemnification by Seller and PBI...............................13
12.3 Indemnification by Buyer........................................14
12.4 Indemnification Procedure.......................................14
ARTICLE XIII. MISCELLANEOUS...................................................14
13.1 Other Expenses..................................................14
13.2 Notices.........................................................14
13.3 Press Release; Prohibition on Trading...........................15
13.4 Controlling Law.................................................15
13.5 Headings........................................................15
13.6 Benefit.........................................................15
13.7 Partial Invalidity..............................................15
13.8 Waiver..........................................................16
13.9 Counterparts....................................................16
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13.10 Interpretation..................................................16
13.11 Entire Agreement................................................16
13.12 Legal Fees and Costs............................................16
13.13 Knowledge.......................................................16
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement"), is entered into on
June 30, 2003, by and among Private Business Insurance, LLC, a Tennessee limited
liability company (the "Seller") and wholly-owned subsidiary of Private
Business, Inc., a Tennessee corporation (herein "PBI"), and InsurManager, LLC, a
Tennessee limited liability company (the "Buyer").
R E C I T A L S:
Seller owns and operates a business through which the following
insurance products are sold to or through financial institutions and to other
customers, through a line of business known as "InsuranceManager" (such line of
business, the "Insurance Manager Program"), commercial insurance products (other
than the Excluded Product Lines, as defined below), financial institutions bonds
and professional liability coverage, and consumer insurance products
(comprehensively, the "Business"); and
Expressly excluded from the Business are all items related to the
Seller's Lender Liability, Environmental Liability and Credit Fraud insurance
products (the "Excluded Product Lines"), whether such Excluded Product Lines are
offered through an Insurance Manager Program or otherwise; and
Seller is wholly-owned by PBI; and
Except for the Excluded Assets (as such term is defined herein), Seller
desires to sell and transfer the Assets (as such term is defined herein) of the
Business to Buyer, and Buyer desires to purchase the same from Seller, subject
to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound hereby, agree as follows:
ARTICLE I. PURCHASE AND SALE
1.1 Purchase and Sale. Seller and PBI agree to sell, transfer, assign,
convey and deliver to Buyer, and Buyer agrees to purchase from Seller and PBI,
all right, title and interest in all assets (except the Excluded Assets, as
defined below) of Seller that are primarily used in connection with the Business
(collectively, the "Assets"), free and clear of all security interests and
liabilities other than the Assumed Liabilities (as defined in Section 2.1(1)),
which Assets shall be comprised of the following:
(1) The tangible personal property, computers, furniture, and
other tangible personal property listed on Exhibit 1.1(1) attached hereto
(collectively, the "Equipment and Furnishings");
(2) All documents, files, books, lists, records and
correspondence, whether written or electronically stored or otherwise recorded
in each case, relating to the Business;
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(3) To the extent transferable under the terms thereof and
permitted by law, all contracts (including the contracts for employees listed on
Exhibit 1.1(3)(A) attached hereto) and insurance company and broker agreements,
primarily used in connection with the Business as listed on Exhibit 1.1(3)(B)
(the "Contracts");
(4) All rights of Seller or PBI in the intangible or
intellectual property owned or licensed by Seller or PBI and used in the
Business, including the licenses, copyrights, tradenames, trademarks, service
marks, applications, training and promotional material, Applied Systems Vision
Agency Manager software, and Microsoft Windows 2000 base operating software
system (the "Intellectual Property");
(5) All customer relationships and existing and prospective
customer lists relating to or arising from the Business, all commissions earned
and recognized after the Closing with respect to the Business, all rights to
renew policies for existing or prospective clients of the Business and other
rights to receive payments arising from the operations of the Business after
Closing;
(6) All rights, to the extent assignable or transferable, to
all licenses, certificates, franchises, accreditations, registrations or permits
used or useful in connection with the Business, including without limitation the
items set forth on Exhibit 1.1(6) attached hereto.
1.2 Excluded Assets. Seller is not selling and Buyer is not purchasing
or assuming obligations with respect to the following (collectively, the
"Excluded Assets"):
(1) Seller's corporate and fiscal records and other records
that Seller is required by law to retain in its possession;
(2) All cash, bank accounts and other investments or deposits
of Seller (the "Cash and Cash Equivalents");
(3) All accounts and notes receivable of Seller (the
"Receivables");
(4) Seller's account for agent draws on commission;
(5) All contracts, documents, intangibles and other assets
related to the Excluded Product Lines; and
(6) Those items described on Exhibit 1.2(6) attached hereto.
The parties acknowledge and agree that Seller is not conveying to Buyer any of
the Excluded Assets and that, following Closing (as defined in Section 7.1
hereof), Buyer will not have any right, title, or interest with respect to the
Excluded Assets.
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ARTICLE II. ASSUMED CONTRACTS AND LIABILITIES
2.1 Assumed Contracts, Leases and Liabilities.
(1) At Closing, Buyer will assume and agree to pay or perform,
as the case may be, the future performance of obligations arising after Closing
under all licenses, permits, leases and Contracts which Buyer expressly elects
to assume as set forth on Exhibit 2.1(1) (collectively, the "Assumed
Liabilities").
(2) It is expressly agreed and understood by each of the
parties to this Agreement that Buyer does not assume, and shall not be liable
for, any other debt, liability or obligation of Seller related to the Assets,
including without limitation the obligation to pay premiums and/or pay bank,
agent and broker commissions (if any) relating to insurance premiums invoiced
prior to the Closing, and that Seller shall remain liable and responsible for
the payment or performance, as the case may be, of all debts, liabilities,
obligations, contracts, leases, Taxes, broker or finders fees for persons
engaged by Seller or PBI, obligations to repay commissions on cancelled policies
to the extent the policy revenue was previously received by Seller or PBI,
contingent liabilities and other obligations that are not Assumed Liabilities
(the "Retained Liabilities").
ARTICLE III. PURCHASE PRICE; TAX PROVISIONS
3.1 Purchase Price. The purchase price payable by Buyer to Seller for
the Assets, and in consideration for the agreements contained herein, shall be
Five Hundred Thousand Dollars ($500,000) (the "Purchase Price"). The Purchase
Price shall be payable at Closing in the following manner:
(1) Three Hundred Twenty-Five Thousand Dollars ($325,000) in
cash at Closing;
(2) One Hundred Seventy-Five Thousand Dollars ($175,000) by a
secured promissory note, the form of which is attached hereto as Exhibit 3.1(2)
(the "Promissory Note"); and
(3) The Promissory Note shall be secured by a lien on all the
assets of Buyer, including the Assets, as evidenced by a Security Agreement in
the form attached hereto as Exhibit 3.1(3).
3.2 Tax Provisions.
(1) Tax Allocation. PBI and Seller, on one hand, and Buyer, on
the other, recognize their mutual obligations pursuant to Section 1060 of the
Code to timely file IRS Form 8594 (the "Asset Acquisition Statement"). PBI,
Seller and Buyer agree that the consideration for the tangible Assets shall be
allocated as set forth on Exhibit 3.2(1) attached hereto. No party shall take a
position on any Tax Return, or in any judicial proceeding, that is inconsistent
with such allocation.
(2) Transfer Taxes. All transfer Taxes, including any sales
and use taxes, arising out of or in connection with the transactions
contemplated by this Agreement shall be paid by
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Seller. Seller shall be responsible for all indebtedness taxes and filing fees
related to the filing of any UCC financing statements related to the Security
Agreement. Each party will use its commercially reasonable efforts to avail
itself of any available exemptions from any such Taxes and will cooperate with
the other party in providing any information and documentation that may be
necessary to obtain such exemptions.
(3) General Taxes. Except as provided in this Section 3.2, PBI
and Seller shall be liable for, and pay as a Retained Liability, all Taxes
applicable to PBI or the Seller, including, without limitation, all income or
franchise Taxes of PBI or Seller arising from the sale of the Assets pursuant to
this Agreement or the operation of the Business prior to Closing.
(4) Property Taxes. PBI and Seller shall be liable for, and
pay as a Retained Liability, all personal property Taxes (or other similar
Taxes) for which Tax Returns cover a taxable period ending before or on the
Closing Date. In the case of any personal property Taxes (or other similar
Taxes) attributable to the Assets for which Tax Returns cover a taxable period
commencing before the Closing Date and ending after the Closing Date, to the
extent not filed on or prior to the Closing Date, Buyer shall prepare such Tax
Returns and make all payments required with respect to any such Tax Return;
provided, however, PBI and Seller shall promptly reimburse Buyer upon receipt of
a copy of the filed Tax Return to the extent any payment made by Buyer relates
to that portion of Taxes applicable to periods of time on or prior to the
Closing Date, which amount shall be determined and pro-rated on a per diem
basis.
(5) Post-Closing Cooperation. To the extent relevant to the
Assets, the parties hereto shall (i) provide each other with such assistance as
may reasonably be required in connection with the preparation of any Tax Return
and the conduct of any audit or examination by any taxing authority or in
connection with judicial or administrative proceedings relating to any liability
for Taxes, and (ii) provide the other with all records or other information that
may be relevant to the preparation of any Tax Return, or the conduct of any
audit or examination or other proceeding related to Taxes.
(6) Payroll Tax Matters. PBI or the Seller shall prepare and
furnish to all of their employees to be employed by Buyer Forms W-2 which shall
reflect all wages and compensation paid to such employees for that portion of
the calendar year in which the Closing occurs during which such employees were
employed by PBI or Buyer. Each of PBI and Seller agree to treat Buyer as a
successor employer with respect to those former employees of PBI or Seller who
are employed by Buyer immediately after the Closing for purposes of the taxes
imposed by Sections 3121 (social security taxes) and 3306 (unemployment taxes)
of the Code.
(7) Tax-Related Definitions. As used in this Agreement, the
term "Taxes" shall mean all federal, state, local, foreign and other net income,
gross income, gross receipts, sales, use, ad valorem, transfer, franchise,
profits, license, lease, service, service use, withholding, payroll, employment,
excise, severance, stamp, occupation, premium, property, windfall profits,
customs, duties or other taxes, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax, or
additional amounts with respect thereto, and including liabilities under
escheat, unclaimed property laws or similar laws, and the term "Tax" means any
of the foregoing taxes. The term "Tax Return" shall mean any report, return,
declaration, claim for
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refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER
As a material inducement to Buyer to enter into this Agreement and to
consummate the transactions contemplated herein, Seller and PBI hereby jointly
and severally represent and warrant to Buyer, which representations and
warranties shall be true and correct on the date hereof and as of the date of
Closing, as follows:
4.1 Organization, Qualification and Authority. Seller and PBI are duly
organized and validly existing in their respective states of organization and
are in good standing and qualified to do business in all jurisdictions where PBI
and Seller conduct business except where such failure to be in good standing
would not have an adverse affect on the Business or the Assets. Seller has full
power and authority to own, lease and operate its facilities and assets as
presently owned, leased and operated and to carry on the Business as it is now
being conducted. The execution, delivery and consummation of this Agreement, and
all other agreements and documents executed in connection herewith by PBI and
Seller, have been duly authorized by all necessary action on the part of PBI and
Seller. This Agreement shall constitute the valid binding obligations of PBI and
Seller, enforceable in accordance with their respective terms.
4.2 Absence of Default. Neither PBI nor Seller is in default under, nor
has any event occurred which, with or without notice or the lapse of time or
action by a third party, could result in default under any outstanding
indenture, mortgage, contract, lease, insurance policy or agreement that would
affect the Business or Assets. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement by PBI and Seller will not (i) violate any provision of, or result in
the breach of, or constitute a default under, or conflict with (A) any terms or
provisions of the charter and bylaws of PBI or the articles and limited
liability company agreement of the Seller (or any resolutions adopted
thereunder), (B) any law the violation of which would result in a liability that
could affect the Business or Assets in an adverse manner, or (C) any order,
writ, injunction or decree of any court, governmental agency or arbitration
tribunal; (ii) assuming receipt of the consents described in Section 4.6
constitute a violation of (or an event that with or without notice or lapse of
time or both would constitute) a default under, termination of or a conflict
with, any term or provision of any contract, commitment, indenture, lease or
other agreement that would result in an adverse effect upon the Business or the
Assets, or any other restriction of any kind to which PBI or the Seller is a
party or by which PBI or Seller is bound that would result in an adverse effect
upon the Business or the Assets; (iii) cause, or give any party grounds to cause
(with or without notice, the passage of time, or both) the maturity of any
liability or obligation of PBI or the Seller to be accelerated, or increase any
such liability or obligation; or (iv) create any lien, security interest,
charge, encumbrance or restriction upon any of the Assets.
4.3 Board Authorization. The execution, delivery and performance of
this Agreement and any and all other agreements contemplated by this Agreement
have been duly authorized by the Board of Directors of PBI on behalf of PBI and
as the sole member of Seller. The individuals executing this Agreement and all
other agreements contemplated by this Agreement on behalf of and in the name of
PBI and Seller are duly authorized and empowered to so act.
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4.4 Legality and Enforceability. This Agreement has been duly executed
and delivered by Buyer and is the legal, valid and binding obligation of Seller
enforceable against Seller in accordance with its terms.
4.5 Litigation. There is no pending or, to Seller's knowledge,
threatened action relating to the transaction contemplated hereby or generally
to the Business or the Assets. Seller is not a party to any pending action, nor
is Seller in receipt of any inquiry, notice, citation, investigation or
complaint from any governmental entity or third party that would materially and
adversely affect Seller's ability to perform its obligations under this
Agreement or affect the Business or Assets.
4.6 Consents and Approvals. Except as set forth on Schedule 4.6, no
consents, approvals, authorizations or orders of third parties, including
governmental authorities, are necessary for the authorization, execution and
performance by PBI or the Seller of this Agreement and the transactions
contemplated hereby, provided however, that neither Seller nor PBI make any
representation or warranty with respect to any licenses, certification,
approvals or orders as may be necessary for Buyer's continued operation of the
Business following Closing.
4.7 Contracts and Commitments. Except as noted in Schedule 4.7, to
Seller's knowledge, the Contracts are valid and in full force and effect; each
is a legal, valid and binding Contract; there has been no threatened
cancellation thereof or outstanding disputes thereunder; all will continue to be
binding in accordance with their terms after consummation of the transactions
contemplated herein (except to the extent that Schedule 4.7 states that a
consent to assignment is required for such Contract and such consent is not
obtained); there is no default (or an event which, with the giving of notice or
lapse of time or both would be a default) by PBI or the Seller; and there is no
pending or threatened, bankruptcy, insolvency or similar proceeding with respect
to any other party to the Contracts. There are no contracts, leases,
commitments, agreements, or other instruments to which PBI is a party which
could reasonably be anticipated to have a material adverse effect on the value
of the Business or the Assets.
4.8 Taxes. The Seller has timely filed all Tax Returns required to be
filed. The Seller has paid all Taxes due and payable. The Seller and PBI and any
predecessors in interest have withheld or collected from each payment made to
each of their employees in connection with the Business the amount of all Taxes
required to be withheld or collected therefrom, and the Seller and PBI and any
predecessors in interest have paid the same to the proper tax depositories or
collecting authorities. There are no liens on any of the Assets with respect to
Taxes. There is no action, suit, investigation, audit, claim or assessment
pending or proposed or threatened with respect to Taxes of the Business or the
Assets, and, to the best of Seller's and PBI's knowledge, no basis exists
therefor. None of the Assets are properly treated as owned by persons other than
PBI and Seller for federal income tax purposes.
4.9 Pension; Employees.
(1) Schedule 4.9 hereto sets forth a current list of PBI's and
Seller's pension, retirement, profit sharing or deferred compensation plans in
existence for their employees. Except as set forth on Schedule 4.9 hereto, PBI
and Seller have no pension, retirement, profit sharing or deferred compensation
plans in existence for their employees and no commitment has
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been made to such employees to provide a pension, retirement, profit sharing or
deferred compensation plan, and no commitment has been made to such employees to
provide any additional pension, retirement, profit sharing or deferred
compensation plan. All employee pension benefit plans and employee health or
welfare benefits plans (as such terms are defined in the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), collectively "Benefit Plans")
have been administered in accordance with ERISA and the applicable provisions of
the Internal Revenue Code of 1986, as amended (the "Code"). There are no
"accumulated funding deficiencies" within the meaning of ERISA or the Code or
any federal excise tax or liability on account of any deficient fundings in
respect of the Benefit Plans. No reportable event(s) (within the meaning of
ERISA) or prohibited transaction(s) (within the meaning of the Code) has
occurred in respect of the Benefit Plans. There are not any pending or to the
knowledge of Seller threatened claims by or on behalf of the Benefit Plans or by
any employee of PBI or Seller alleging a breach or breaches of fiduciary duties
or violations of other applicable state or Federal law which could result in
liability on the part of PBI or Seller or the Benefit Plans under ERISA or any
other law, nor is there any reasonable basis for such a claim. The Benefit Plans
do not discriminate in operating in favor of employees who are officers or
highly compensated. Except as set forth on Schedule 4.9 hereto, all returns,
reports, disclosure statements and premium payments required to be made under
ERISA and the Code with respect to the Benefit Plans have been timely filed or
delivered. The Benefit Plans have not been audited or investigated by either the
Internal Revenue Service, the Department of Labor or the Pension Benefit
Guaranty Corporation within the last five years, and there are no outstanding
issues with reference to the Benefit Plans pending before said governmental
agencies.
(2) Schedule 4.9 hereto sets forth a current schedule of all
employees of PBI or the Seller, including, without limitation, employees
currently on a leave of absence or disability leave, who are employed in
connection with the Business or are to provide services under the Transitional
Services Agreement (the "Employees"). The Business is in compliance with all
federal, state and local laws and regulations respecting employment and
employment practices, labor practices, terms and conditions of employment and
wages and hours. To the best of Seller's knowledge, there is no pending or
threatened employee strike, work stoppage or labor dispute. To the best of
Seller's knowledge, no union representation question exists respecting any
employees of PBI or the Seller, no collective bargaining agreement exists or is
currently being negotiated, no demand has been made for recognition by a labor
organization, no union organizing activities are taking place, and none of the
employees of PBI or the Seller is represented by any labor union or
organization. To the best of Seller's knowledge there is no unfair practice
claim against PBI or the Seller before the National Labor Relations Board, or
any strike, dispute, slowdown, or stoppage pending or threatened, and none has
occurred. To the best of Seller's knowledge, except as set forth on Schedule
4.9, there are no pending or threatened EEOC claims, wage and hour claims,
unemployment compensation claims, workers' compensation claims or the like
against PBI or Seller. To the best of Seller's knowledge, none of the Employees
have provided written notice to PBI or Seller of any plans to terminate
employment.
(3) All payroll, including salaries, benefits and all FICA,
FUTA and other taxes related to payroll (the "Payroll"), due to the Employees in
accordance with their payroll program through the Closing have been paid by PBI
or Seller. The Payroll of PBI and Seller relating to the Employees as of June 1,
2003 is set forth on Schedule 4.9. There has been no increase or promise to
increase the Payroll relating to the Employees since June 1, 2003 other
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than as set forth on Schedule 4.9. Schedule 4.9 sets forth an accurate list of
the accrued vacation days, leave and holidays of each of the Employees as of
June 1, 2003.
4.10 Customers; Accounts. Schedule 4.10 lists all of the present
customers of the Business and their related accounts.
4.11 Ownership of Properties. The Seller either owns the Assets listed
on Exhibit 1.1(1) or leases them pursuant to a Contract. Except as set forth on
Schedule 4.11, the Seller has good title to all of the Assets owned by it,
including furniture and equipment, fixed assets, and all contract rights and
intangible assets, and good and valid lease rights in all of the Assets leased
by it, in each case free and clear of mortgages, security interests, liens,
defects, charges, encumbrances, restrictions and rights of third parties. All
equipment and other tangible personal property constituting a portion of the
Assets are being transferred on an "AS IS" "WHERE IS" basis, with no
representation or warranties other than those expressly set forth herein.
4.12 Intellectual Property. Seller owns or has the right to use the
Intellectual Property, as further described on Schedule 4.12, and following the
Closing, the Buyer will own or be able to use the Intellectual Property on the
identical terms and conditions as the Seller owned or used such items prior to
the Closing, subject to the receipt of any third party consents identified on
Schedule 4.12 as being necessary for the valid transfer of such Intellectual
Property.
4.13 Licensure; Compliance with Laws, Regulations and Court Orders.
Schedule 4.13 sets forth all of the licenses, certificates, franchises,
accreditations, registrations, or permits relating to the Business. To Seller's
knowledge, there is not any outstanding or threatened order, writ, injunction or
decree of any court, governmental agency or arbitration tribunal against or
affecting the Business or the Assets. PBI and Seller are in compliance with all
applicable federal, state and local laws, license terms, regulations and
administrative orders except where such non-compliance is not reasonably
anticipated to have an adverse effect on the Business or the Assets, and have
received no notices of alleged violations thereof except as disclosed in
Schedule 4.13 hereof. To the best of PBI and Seller's knowledge, no governmental
authorities are currently conducting proceedings against PBI, Seller, or any
employee of PBI or Seller with respect to the Business, and no such
investigation or proceeding is pending or being threatened.
4.14 Insurance. Seller has in effect and has continuously maintained
insurance coverage on an "occurrence" basis for its operations, personnel and
Assets.
4.15 Broker's or Finder's Fee. PBI and Seller will be responsible and
pay for or is liable for the payment of any fee to, any finder, broker,
consultant or similar person engaged by PBI or Seller in connection with the
transactions contemplated by this Agreement.
4.16 Disclosure. No representation made herein by PBI or Seller,
contains any untrue statement of a material fact or omits to state a material
fact necessary to make these statements not misleading.
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ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to Seller to enter into this Agreement and to
consummate the transactions contemplated herein, Buyer hereby represents and
warrants to Seller, which representations and warranties shall be true and
correct on the date hereof and on the date of Closing, as follows:
5.1 Organization, Qualification and Authority. Buyer is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Tennessee. Buyer has the full limited liability company
power and limited liability company authority to execute this Agreement and all
documents and agreements necessary to give effect to the provisions of this
Agreement and to consummate the transactions contemplated thereby. The
execution, delivery and consummation of this Agreement and all other agreements
and documents executed in connection herewith by Buyer has been duly authorized
by all necessary limited liability company action on the part of Buyer. This
Agreement shall constitute the valid binding obligations of Buyer, enforceable
in accordance with their respective terms.
5.2 Absence of Default. The execution, delivery and consummation of
this Agreement by Buyer will not constitute a violation of, or be in conflict
with, any obligation or liability of Buyer.
5.3 Board and Member Authorization. The execution, delivery and
performance of this Agreement and any and all other agreements contemplated by
this Agreement have been duly authorized by the Board of Governors of Buyer,
and, if required by Tennessee law or Buyer's Articles or Limited Liability
Company Agreement, by Buyer's members. The individuals executing this Agreement
and all other agreements contemplated by this Agreement on behalf of and in the
name of Buyer are duly authorized and empowered to so act.
5.4 Non-contravention; Consents. The execution, delivery and
performance of this Agreement does not and will not , after the giving of
notice, the lapse of time or otherwise conflict with, result in a breach of, or
constitute a default under Buyer's Articles or Limited Liability Company
Agreement, or, violate any material law or regulation applicable to Buyer.
5.5 Legality and Enforceability. This Agreement has been duly executed
and delivered by Buyer and is the legal, valid and binding obligation of Buyer
enforceable against Buyer in accordance with its terms.
5.6 Litigation. There is no pending or, to Buyer's knowledge,
threatened action relating to the transaction contemplated hereby or generally
to the Business. Buyer is not a party to any pending action, nor is Buyer in
receipt of any inquiry, notice, citation, investigation or complaint from any
governmental entity or third party that would materially and adversely affect
Buyer's ability to perform its obligations under this Agreement.
5.7 No Restrictions. Buyer is not a party to, subject to or bound by
any agreement or order of any governmental entity which could prevent the
consummation of the transactions contemplated herein.
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5.8 No Broker. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on directly by Buyer with
Seller without the intervention of any broker or other person engaged by Buyer
so as to afford a basis for any claim for brokerage or other commissions or fees
relative to this Agreement or the transactions contemplated hereby.
5.9 Other Matters. Without limiting the representations and warranties
of PBI and Seller hereunder (except for such limitations as are contained in
Section 6.4 below), Buyer acknowledges that they know and understand the
following: (1) that the Business has been operated and managed directly under
the management and leadership of James R. Arnold; (2) that Mr. Arnold has been
and continues to be responsible for the day-to-day decision-making authority for
the operations of the Business; (3) that Mr. Arnold has the day-to-day
decision-making authority for the operations of the Business; (4) that Mr.
Arnold has negotiated and is completely familiar with all of the Contracts of
Seller, including those with Premier Bank of Brentwood, Brentwood, Tennessee,
American City Bank of Tullahoma, Tullahoma, Tennessee, Bank of the South, Mt.
Juliet, Tennessee, and First National Bank of LaFollette, LaFollette, Tennessee
and all other current and potential customers of Seller with respect to the
Business; and (5) that Mr. Arnold has complete access to and familiarity with
the Business operations and financial and other matters relative to the
Business.
ARTICLE VI. COVENANTS OF PARTIES
6.1 Ownership of Intellectual Property. The parties will take all
actions necessary (including, but not limited to, the execution of all necessary
documents and agreements) in order for Buyer to create, perfect or renew rights
in any Intellectual Property.
6.2 Co-Marketing Agreement. Buyer and Seller shall execute at Closing a
non-exclusive Co-Marketing Agreement with respect to insurance products to be
offered by PBI and Buyer in a form substantially similar to Exhibit 6.2.
6.3 Transitional Services Agreement. Buyer and Seller shall execute at
Closing a Transitional Services Agreement substantially similar to Exhibit 6.3.
6.4 Buyer's Advance Knowledge. The parties agree that Seller and PBI
shall have no liability for the inaccuracy or breach of any representation or
warranties contained in Article 4 to the extent that Buyer or Mr. Arnold as of
the Closing Date has knowledge of facts or information related to the Business
that such representations or warranties are untrue or inaccurate; provided,
however, that this limitation of liability shall not apply to a breach of
Sections 4.1, 4.3, 4.4, 4.8, 4.9, 4.14, 4.15 or 4.16.
6.5 Third Party Consents. Seller shall use its reasonable best efforts
to obtain for the benefit of Buyer, all consents and authorizations of the third
parties to the Contracts set forth on Exhibit 1.1(3).
6.6 COBRA Rights. PBI or Seller will provide all notices and coverages
to employees to which they may be entitled as a result of termination of
employment prior to the Closing under the Consolidated Omnibus Budget
Reconciliation Act (COBRA) and PBI or Seller will continue to provide
continuation coverage to any such former employees who are receiving
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COBRA coverage. All such obligation with respect to Employees whose employment
agreements are included in the Contracts assigned to Buyer hereunder shall be
the responsibility of Buyer.
ARTICLE VII. CLOSING
7.1 Closing. The Closing shall occur on or by June 30, 2003, at the
offices of Harwell Howard Hyne Gabbert & Manner, P.C., Nashville, Tennessee, or
at such other time or place as the parties may mutually agree (the "Closing").
In the event that Closing has not occurred by July 15, 2003 then either party
not in default hereunder may terminate this Agreement without further
obligation.
ARTICLE VIII. SELLER'S CONDITIONS TO CLOSE
The obligations of Seller under this Agreement are subject to the
satisfaction on or prior to Closing, of the following conditions (which may be
waived in writing by Seller or PBI in whole or in part):
8.1 Representations and Warranties True at Closing; Compliance with
Agreement. The representations and warranties of Buyer contained in this
Agreement (including the Exhibits and attachments hereto) or in any certificate
or document delivered to Seller pursuant hereto, shall be deemed to have been
made again at the Closing and shall then be true in all respects; and Buyer
shall have performed and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it prior to or at
Closing.
8.2 No Action/Proceeding. No action or proceeding before a court or any
other governmental agency or body shall have been instituted or threatened to
restrain or prohibit the transaction hereunder contemplated.
8.3 Co-Marketing and Transitional Services Agreement. Buyer and Seller
shall have entered into the Transitional Services Agreement set forth on Exhibit
6.3 attached hereto and the Co-Marketing Agreement set forth on Exhibit 6.2
attached hereto.
8.4 Payment of the Purchase Price. Buyer shall pay to Seller, in
immediately available funds, the cash portion of the Purchase Price. Buyer shall
also deliver the Promissory Note and the Security Agreement.
ARTICLE IX. BUYER'S CONDITIONS TO CLOSE
The obligations of Buyer under this Agreement are subject to the
satisfaction, on or prior to Closing, of the following conditions (which may be
waived in writing by Buyer in whole or in part):
9.1 Representations and Warranties True at Closing; Compliance with
Agreement. The representations and warranties of Seller and PBI contained in
this Agreement (including the Exhibits and attachments hereto) or in any
certificate or document delivered to Buyer in connection herewith, shall be
deemed to have been made again at the Closing and shall then be true in all
respects; and Seller and PBI shall have performed and complied with all
covenants,
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agreements and conditions required by this Agreement to be performed or complied
with by them prior to or at Closing.
9.2 Due Diligence. On or before Closing, Buyer shall have completed to
its satisfaction all due diligence with respect to the Business and reviews of
Seller's assets.
9.3 Documentation. The negotiation, execution and delivery of this
Agreement and all ancillary documents related thereto as reasonably acceptable
to the parties and their respective counsel shall have occurred.
9.4 Lender Consent and Release PBI shall have obtained and delivered to
Buyer a consent to this Agreement and the transactions contemplated hereby
pursuant to the terms of the Credit Agreement, dated as of August 7, 1998, as
amended, among Fleet National Bank, BankBoston, N.A., and PBI (the "Credit
Agreement"), and Buyer shall have received releases and terminations of all
liens, encumbrances, or other security interests in the Assets whether under the
Credit Agreement or otherwise have been or will be fully and unconditionally
released as of the Closing. Such items shall be acceptable in all respects to
Buyer in its reasonable discretion.
9.5 Board Approval. Buyer's Board of Directors shall have approved this
Agreement and executed all necessary corporate resolutions and other documents
authorizing Buyer's execution of this Agreement and Buyer's subsequent
performance of its obligations hereunder.
9.6 No Action/Proceeding. No action or proceeding before a court or any
other governmental agency or body shall have been instituted or threatened to
restrain or prohibit the transaction hereunder contemplated.
ARTICLE X. OBLIGATIONS OF SELLER AT CLOSING
At Closing, Seller shall deliver or cause to be delivered to Buyer the
following in form and substance reasonably satisfactory to Buyer:
10.1 Documents Relating to Assets. Seller shall execute, acknowledge,
deliver and cause to be executed, acknowledged and delivered to Buyer:
(1) A Bill of Sale, attached hereto as Exhibit 10.1(1),
conveying to Buyer all of Seller's right, title and interest in and to the
Assets, free and clear of all liens and security interests.
(2) An executed assignment, in the form of Assignment and
Assumption Agreement set forth on Exhibit 10.1(2).
10.2 Possession. Seller shall deliver to Buyer full possession and
control of the Assets.
10.3 Corporate Good Standing and Corporate Resolutions. Seller shall
deliver to Buyer a certificate of good standing from the Secretary of State of
its state of organization, certified copies of the Bylaws and Charter of PBI and
the Articles and Limited Liability Company Agreement of Seller (all dated the
most recent practical date prior to Closing), certified
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copies of the resolutions of PBI, as the sole member of Seller, authorizing the
execution, delivery and consummation of this Agreement and the other agreements
contemplated thereby.
10.4 Additionally Requested Documents; Post Closing Assistance. At the
reasonable request of Buyer at Closing and at any time or from time to time
thereafter, Seller shall cooperate with Buyer to put Buyer in actual possession
and operating control of the Assets and Business, execute and deliver such
further instruments of sale, conveyance, transfer and assignment, as Buyer may
reasonably request in order to effectively convey, transfer and assign the
Assets to Buyer.
ARTICLE XI. OBLIGATIONS OF BUYER AT CLOSING
At Closing, Buyer shall deliver or cause to be delivered to Seller the
following in a form and substance reasonably satisfactory to Seller:
11.1 Purchase Price. Buyer shall (i) wire in immediately available
funds to Seller $325,000 and (ii) execute and deliver the original Promissory
Note to Seller in the amount of $175,000, as described in Section 3.1.
11.2 Assumption of Liabilities. Buyer shall execute the Assignment and
Assumption Agreement set forth on Exhibit 10.1(2) through which Buyer will
assume all of the Assumed Liabilities, as set forth on Exhibit 2.1(1), subject
to the provisions of this Agreement, after Closing.
11.3 Corporate Good Standing and Board Resolutions. Buyer shall deliver
to Seller a certificate of good standing from the Secretary of State of
Tennessee, dated the most recent practical date prior to Closing, together with
a certified copy of the resolutions of the Board of Directors of Buyer approving
this Agreement and the consummation of the transactions hereunder contemplated.
ARTICLE XII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
PROVISIONS AND INDEMNIFICATION
12.1 Survival. The representations, warranties and covenants of Seller,
PBI and Buyer in this Agreement or any certificate or document shall survive the
Closing for eighteen (18) months and any claim for indemnification hereunder
must be made in writing in accordance with Section 12.4 below prior to the end
of such period.
12.2 Indemnification by Seller and PBI. Seller and PBI, jointly and
severally, shall promptly indemnify, defend, and hold harmless Buyer, the
directors, officers, shareholders, employees and agents of Buyer, and the Assets
against any and all losses, costs, and expenses (including reasonable attorney's
fees and expenses actually incurred) and other damages resulting from (i) any
breach by either Seller or PBI of any of the covenants, obligations,
representations or warranties contained in this Agreement, other than Section
4.15, (ii) the Retained Liabilities or any other liability not expressly assumed
by Buyer pursuant to Section 2.1, including any liability arising from a breach
of Section 4.15, and (iii) any claim (whether or not disclosed herein) that is
brought or asserted by any third party(ies) against Buyer arising out of the
ownership, licensing, or operation of the Assets through the date of Closing.
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Notwithstanding the foregoing, with respect to indemnification obligations in
clause (i) in this Section, Seller and PBI's collective indemnification
obligations shall be limited, in the aggregate, to the Purchase Price.
12.3 Indemnification by Buyer. Buyer shall promptly indemnify, defend,
and hold harmless Seller and PBI and their respective directors, officers,
shareholders, employees and agents against any and all losses, costs, and
expenses (including reasonable attorney's fees and expenses actually incurred)
and other damages resulting from (i) any breach by Buyer of any covenants,
obligations, representations or warranties or breach or untruth of any
representation, warranty, fact or conclusion contained in this Agreement or any
certificate or document of Buyer delivered pursuant to this Agreement, (ii) any
claim which is brought or asserted by any third party(ies) against Seller or PBI
for failure to pay or perform any of the Assumed Liabilities, and (iii) any
claim that is brought or asserted by any third party(ies) against Seller or PBI
arising out of the ownership, licensing, or operation of the Assets or the
conduct of any of Buyer's officers, employees, agents or independent
contractors, relating to all periods of time subsequent to the date of Closing.
12.4 Indemnification Procedure. Should any claim be made by a person
not a party to this Agreement with respect to any matter to which either of the
foregoing indemnities relates, the indemnified party (the "Indemnitee") shall
promptly notify the indemnifying party (the "Indemnitor") thereof. The
Indemnitee, on not less than thirty (30) days' written notice to the Indemnitor
containing the terms of the proposed settlement, may make settlement of such
claim and such settlement shall be binding on both parties hereto for the
purposes of this Section; provided, however, that if within such thirty (30) day
period the Indemnitor shall admit its liability for indemnity and shall have
requested the Indemnitee to contest any such claim at the expense of the
Indemnitor, the Indemnitee shall promptly comply, and the Indemnitor shall have
the right to direct the defense of such claim or any litigation based thereon at
its own expense through counsel of its own choosing. The Indemnitee shall also
have the right to participate in the settlement of any such claim or in any such
litigation so long as its participation is at its own expense and with the
understanding that the Indemnitor may settle in its own discretion (subject to
the final sentence of this paragraph). Any payment or settlement made by the
Indemnitor in such contest, together with the total expense thereof, shall be
binding on the Indemnitor, and if accompanied by a full and unconditional
release of all liability, the Indemnitee, for the purposes only of this Section.
Notwithstanding anything herein to the contrary, an Indemnitor shall not,
without the prior written consent of the indemnified party, settle any claim in
any manner, which adversely affects the Indemnitee.
ARTICLE XIII. MISCELLANEOUS
13.1 Other Expenses. Except as otherwise provided in this Agreement,
each party hereto shall pay all of their own expenses in connection with the
negotiation, execution, and implementation of the transactions contemplated by
this Agreement.
13.2 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given: (a) if delivered
personally or sent by facsimile, on the date received, (b)
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if delivered by overnight courier, on the day after mailing, and (c) if mailed,
five days after mailing with postage prepaid. Any such notice shall be sent as
follows:
To Seller or PBI: Private Business, Inc.
Attn: Michael Berman, General Counsel
9020 Overlook Blvd.
Brentwood, TN 37027
with a copy to: Harwell Howard Hyne Gabbert & Manner, P.C.
Attn: David Cox
315 Deaderick St., Suite 1800
Nashville, TN 37238
To Buyer: InsurManager, LLC
Attn: James R. Arnold
c/o 2nd Generation Capital, LLC
618 Church Street
Nashville, TN 37219
with a copy to: Waller Lansden Dortch & Davis, PLLC
Attn: Ralph W. Davis, Esq.
511 Union Street, Suite 2100
Nashville, TN 37219
13.3 Press Release; Prohibition on Trading. All parties agree to
reasonably cooperate in the preparation of a mutually acceptable press release
with respect to the transaction described herein. Seller and Buyer and their
affiliates agree not to trade in the securities of PBI based upon any nonpublic
information to the extent such trading is prohibited by applicable securities
laws.
13.4 Controlling Law. This Agreement shall be construed, interpreted
and enforced in accordance with the laws of the State of Tennessee without
reference to its choice of law provisions.
13.5 Headings. Any table of contents and paragraph headings in this
Agreement are for convenience of reference only and shall not be considered or
referred to in resolving questions of interpretation.
13.6 Benefit. This Agreement shall be binding upon and shall inure to
the exclusive benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. This Agreement is not intended to, nor
shall it, create any rights in any other party.
13.7 Partial Invalidity. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted. Further, there shall be automatically
substituted for such invalid or unenforceable provision a provision as similar
as possible which is valid and enforceable.
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13.8 Waiver. Neither the failure nor any delay on the part of any party
hereto in exercising any rights, power or remedy hereunder shall operate as a
waiver thereof, or of any other right, power or remedy; nor shall any single or
partial exercise of any right, power or remedy preclude any further or other
exercise thereof, or the exercise of any other right, power or remedy. No waiver
of any of the provisions of this Agreement shall be valid unless it is in
writing and signed by the party against which it is sought to be enforced.
13.9 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
13.10 Interpretation. All pronouns and any variation thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or entity, or the context, may require. Further, it is
acknowledged by the parties that this Agreement has undergone several drafts
with the negotiated suggestions of both; and, therefore, no presumptions shall
arise favoring either party by virtue of the authorship of any of its provisions
or the changes made through revisions.
13.11 Entire Agreement. This Agreement, including the Exhibits and
attachments hereto, which are incorporated herein by reference, constitutes the
entire agreement between the parties hereto with regard to the matters contained
herein and it is understood and agreed that all previous undertakings,
negotiations, letters of intent and agreements between the parties are merged
herein. This Agreement may not be modified orally, but only by an agreement in
writing signed by Buyer, Seller and PBI.
13.12 Legal Fees and Costs. In the event any party incurs legal
expenses to enforce or interpret any provision of this Agreement, the prevailing
party will be entitled to recover such legal expenses, including, without
limitation, attorney's fees, costs and disbursements, in addition to any other
relief to which such party shall be entitled.
13.13 Knowledge. For purposes of this Agreement, "Seller's knowledge"
"PBI's knowledge" or words of similar meaning shall mean the actual knowledge of
PBI's executive officers as listed on Schedule 13.13 without any obligation of
inquiry or investigation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SELLER
PRIVATE BUSINESS INSURANCE, LLC
By: /s/ Henry M. Baroco
-------------------------------------
Title: Chief Executive Officer
----------------------------------
PBI
PRIVATE BUSINESS, INC.
By: /s/ Henry M. Baroco
-------------------------------------
Title: Chief Executive Officer
----------------------------------
BUYER
INSURMANAGER, LLC
By: /s/ James R. Arnold
-------------------------------------
Title: Chief Executive Officer
----------------------------------
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