<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______ TO _____
AMERICAN BANKERS INSURANCE GROUP, INC.
11222 QUAIL ROOST DRIVE
MIAMI, FLORIDA 33157
(305) 253-2244
Commission File Number: 0-9633
State of Incorporation: Florida
I.R.S. Employer Identification Number: 59-1985922
Indicate, by check mark, whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such report), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO
---- -----
Common Stock - Par Value $1.00
43,070,782 Shares Outstanding on November 3, 1998
1
<PAGE> 2
AMERICAN BANKERS INSURANCE GROUP, INC.
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
QUARTER ENDED SEPTEMBER 30, 1998
<PAGE> 3
Form 10-Q
Company or group of companies for which report is filed:
AMERICAN BANKERS INSURANCE GROUP, INC.
This quarterly report, filed pursuant to Rule 13A-13 of the General Rules and
Regulations under the Securities Exchange Act of 1934, consists of the following
information as specified in Form 10-Q.
PART I - FINANCIAL INFORMATION
- ------------------------------
ITEM 1 - Financial Statements
1. Consolidated Balance Sheets at September 30, 1998 and
December 31, 1997.
2. Consolidated Statements of Income for the three months ended
September 30, 1998 and 1997.
3. Consolidated Statements of Comprehensive Income for the three
months ended September 30, 1998 and 1997.
4. Consolidated Statements of Income for the nine months ended
September 30, 1998 and 1997.
5. Consolidated Statements of Comprehensive Income for the nine
months ended September 30, 1998 and 1997.
6. Consolidated Statements of Cash Flows for the nine months ended
September 30, 1998 and 1997.
7. Notes to Consolidated Financial Statements.
ITEM 2 - Management's Discussion and Analysis of Financial Condition and
Results of Operations.
PART II - OTHER INFORMATION
ITEM 1 - Legal Proceedings
ITEM 4 - Submission of Matters to a Vote of Security Holders
ITEM 6 - Exhibits and Reports
a. Exhibits.
The following exhibits are included herein:
(2.1) Stock Purchase Agreement by and among American Bankers
Insurance Group, Inc., David K. Johnston and Sherry L. Scott
dated as of July 31, 1998.
(27) Financial Data Schedule
b. Report on Form 8-K.
None
2
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICAN BANKERS
INSURANCE GROUP, INC.
November 16, 1998
Date
/s/ Robert Hill
----------------------------
Robert Hill
Principal Accounting Officer
3
<PAGE> 5
PART I
FINANCIAL INFORMATION
4
<PAGE> 6
AMERICAN BANKERS INSURANCE GROUP, INC.
CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, 1998 AND DECEMBER 31, 1997
(in thousands)
<TABLE>
<CAPTION>
1998 1997
----------- -----------
(unaudited)
<S> <C> <C>
Assets
Investments
Held-to-maturity securities, at amortized cost $ 771,107 $ 836,608
Available-for-sale securities, at fair value 1,094,408 973,790
Equity securities, at approximate market value 134,320 141,274
Mortgage loans on real estate 6,850 9,322
Policy loans 9,782 9,315
Short-term and other investments 218,418 184,923
------------ -----------
Total investments 2,234,885 2,155,232
------------ -----------
Cash 23,734 23,265
Accounts receivable, net of allowance for doubtful
accounts of $4,935 in 1998 and $5,619 in 1997 133,794 144,330
Reinsurance receivable 295,833 270,692
Accrued investment income 27,722 25,228
Deferred policy acquisition costs 449,560 458,289
Prepaid reinsurance premiums 620,803 565,162
Other assets 158,251 140,253
------------ -----------
Total assets $ 3,944,582 $ 3,782,451
============ ===========
Liabilities and Stockholders' Equity
Policy liabilities $ 325,959 $ 311,181
Unearned premiums 1,487,424 1,436,034
Claim liabilities 579,680 555,797
------------ -----------
2,393,063 2,303,012
Other policyholders' funds 7,146 4,786
Notes payable 344,705 242,592
Deferred income taxes 34,888 51,666
Accrued commissions and other expenses 144,776 150,147
Other liabilities 206,985 216,379
------------ -----------
Total liabilities 3,131,563 2,968,582
------------ -----------
Commitments and Contingencies (Note 5)
Stockholders' Equity
Preferred stock: $3.125 Series B Cumulative Convertible Preferred Stock
Authorized 10,000 shares.
Issued and Outstanding 1,983 shares in 1998 and 2,300 shares in 1997. $ 99,160 $ 115,000
Common stock of $1 par value. Authorized 100,000 shares.
Issued and Outstanding 43,083 shares in 1998 and 41,806 shares in 1997. 43,083 41,806
Additional paid-in capital 244,164 212,010
Accumulated Other Comprehensive Income 9,784 12,096
Retained earnings 434,229 449,444
Less:
Treasury stock, at cost - 271 shares in 1998 and 271 shares in 1997 (8,110) (8,110)
Unamortized restricted stock (9,291) (6,252)
Collateralization of loan to Leveraged Employee
Stock Ownership Plan 0 (2,125)
------------ -----------
Total stockholders' equity 813,019 813,869
------------ -----------
Total liabilities and stockholders' equity $ 3,944,582 $ 3,782,451
============ ===========
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
5
<PAGE> 7
AMERICAN BANKERS INSURANCE GROUP, INC.
CONSOLIDATED STATEMENTS OF INCOME
FOR THREE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(in thousands except per common share data)
(unaudited)
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
Gross collected premiums $ 695,434 $ 716,429
========= =========
Premiums and other revenues:
Net premiums earned $ 374,250 $ 364,884
Net investment income 38,087 33,872
Realized investment gains 6,191 4,065
Other income 7,717 5,341
--------- ---------
Total premiums and other revenues 426,245 408,162
--------- ---------
Benefits and expenses:
Net benefits, claims, losses and settlement expenses 127,661 136,354
Commissions 174,907 153,472
Operating expense 97,074 72,629
Interest expense 5,674 4,072
--------- ---------
Total benefits and expenses 405,316 366,527
--------- ---------
Income before taxes 20,929 41,635
--------- ---------
Income tax expense (benefit):
Current 13,640 6,912
Deferred (8,997) 4,884
--------- ---------
4,643 11,796
--------- ---------
Net Income $ 16,286 $ 29,839
========= =========
PER COMMON SHARE AND COMMON EQUIVALENT SHARE DATA
Basic:
Net Income $ 0.34 $ 0.67
========= =========
Weighted average number of shares outstanding 42,829 41,654
========= =========
Diluted:
Net Income $ N/A $ 0.63
========= =========
Weighted average number of shares outstanding 46,986 47,144
========= =========
Dividends per common share $ 0.11 $ 0.11
========= =========
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
6
<PAGE> 8
AMERICAN BANKERS INSURANCE GROUP, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
FOR THREE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Net Income $ 16,286 $ 29,839
-------- --------
Other comprehensive income, net of tax:
Foreign currency translation adjustments (1,525) (876)
Unrealized gains on securities:
Unrealized holding (losses) gains arising during
period (1,968) 12,739
Less: reclassification adjustment for gains included
in net income (5,394) 0
-------- --------
Subtotal unrealized (losses) gains on securities (7,362) 12,739
Minimum pension liability adjustment 0 0
-------- --------
Other comprehensive (loss) income (8,887) 11,863
-------- --------
Comprehensive income $ 7,399 $ 41,702
======== ========
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
7
<PAGE> 9
AMERICAN BANKERS INSURANCE GROUP, INC.
CONSOLIDATED STATEMENTS OF INCOME
FOR NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
1998 1997
----------- -----------
<S> <C> <C>
Gross collected premiums $ 2,090,244 $ 2,020,160
=========== ===========
Premiums and other revenues:
Net premiums earned $ 1,093,957 $ 1,093,670
Net investment income 109,792 99,320
Realized investment gains 15,205 9,099
Other income 21,471 16,994
----------- -----------
Total premiums and other revenues 1,240,425 1,219,083
----------- -----------
Benefits and expenses:
Net benefits, claims, losses and settlement expenses 376,848 409,282
Commissions 487,632 453,971
Operating expense 268,590 224,619
Merger termination fee 100,000 0
Interest expense 15,333 12,091
----------- -----------
Total benefits and expenses 1,248,403 1,099,963
----------- -----------
(Loss) Income before taxes (7,978) 119,120
----------- -----------
Income tax (benefit) expense:
Current 3,257 30,490
Deferred (15,010) 3,754
----------- -----------
(11,753) 34,244
----------- -----------
Net Income $ 3,775 $ 84,876
=========== ===========
PER COMMON SHARE AND COMMON EQUIVALENT SHARE DATA
Primary:
Net (Loss) Income $ (0.03) $ 1.92
=========== ===========
Weighted average number of shares outstanding 42,491 41,389
=========== ===========
Diluted:
Net Income $ N/A $ 1.81
=========== ===========
Weighted average number of shares outstanding 46,959 46,704
=========== ===========
Dividends per common share $ 0.33 $ 0.32
=========== ===========
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
8
<PAGE> 10
AMERICAN BANKERS INSURANCE GROUP, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
FOR NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
Net Income $ 3,775 $ 84,876
--------- ---------
Other comprehensive income, net of tax:
Foreign currency translation adjustments (2,698) (4,298)
Unrealized gains on securities:
Unrealized holding gains arising during period 10,322 12,246
Less: reclassification adjustment for gains
included in net income (9,936) 0
--------- ---------
Subtotal unrealized gains on securities 386 12,246
Minimum pension liability adjustment 0 0
--------- ---------
Other comprehensive (loss) income (2,312) 7,948
--------- ---------
Comprehensive income $ 1,463 $ 92,824
========= =========
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
9
<PAGE> 11
AMERICAN BANKERS INSURANCE GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
1998 1997
----------- -----------
<S> <C> <C>
Operating activities:
Net income $ 3,775 $ 84,876
Adjustments to reconcile net income to net cash provided
by operating activities:
Change in policy liabilities, unearned premiums, claim
liabilities, reinsurance receivable and prepaid reinsurance premiums 19,756 70,467
Change in other assets and other liabilities (35,489) 31,646
Decrease (increase) in accounts receivable 10,536 (8,063)
Increase in accrued investment income (2,494) (2,139)
Decrease in accrued commissions and expenses (5,371) (10,893)
Increase in policyholders' funds 2,360 1,301
Increase in policy loans (467) (717)
Amortization of deferred policy acquisition costs 413,013 400,417
Amortization of cost of insurance acquired 922 1,137
Policy acquisition costs deferred (404,284) (454,580)
Provision for amortization and depreciation 8,094 10,391
Provision for deferred income taxes (15,010) 3,754
Net gain on sale of investments (15,205) (9,099)
Compensation and tax effect on stock option shares 8,499 1,632
Net cash flow from purchases and sales of trading securities 0 8,880
----------- -----------
Net cash (used in) provided by operating activities (11,365) 129,010
----------- -----------
Investing activities:
Purchase of investments
Held-to-maturity securities (30,022) (86,623)
Available-for-sale securities (720,049) (1,143,756)
Proceeds from sale of investments
Available-for-sale securities 507,776 1,006,881
Mortgage loans 2,476 540
Real Estate 12 25
Proceeds from maturities of investments
Held-to-maturity securities 93,651 87,218
Available-for-sale securities 112,799 49,105
Increase in short-term investments (39,082) (55,377)
Transactions related to capital assets
Capital expenditures (6,939) (13,287)
Sales of capital assets 70 58
----------- -----------
Net cash used in investing activities (79,308) (155,216)
----------- -----------
Financing activities:
Proceeds from issuance of debt 116,981 25,183
Repayment of debt (9,020) (4,600)
Dividends paid to shareholders (18,979) (18,353)
Proceeds from issuance of stock 2,329 3,582
----------- -----------
Net cash provided by financing activities 91,311 5,812
----------- -----------
Net increase (decrease) in cash 638 (20,394)
Cash at beginning of period 23,265 30,434
Rate change effect on cash flow (169) 84
----------- -----------
Cash at end of period $ 23,734 $ 10,124
=========== ===========
Supplemental disclosures of cash flow information
Cash paid during the period for:
Interest $ 14,252 $ 9,596
Income taxes $ 6,690 $ 35,350
</TABLE>
See accompanying notes to consolidated financial statements.
10
<PAGE> 12
AMERICAN BANKERS INSURANCE GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998
(UNAUDITED)
(1) FINANCIAL STATEMENTS
The accompanying unaudited consolidated financial statements have been prepared
in accordance with the instructions to Form 10-Q and do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair
presentation have been included. Operating results for the period ended
September 30, 1998 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1998. These statements should be read
in conjunction with the financial statements and notes thereto included in the
Company's Annual Report Form 10-K for the year ended December 31, 1997. Certain
items have been reclassed to conform with 1998 presentation.
(2) ADOPTION OF NEW FASB STATEMENT
The Company adopted FASB Statement 130, "Reporting Comprehensive Income."
Components of comprehensive income for the Company include items such as foreign
currency translation and unrealized gains (losses) of available-for-sale
securities.
(3) COMPREHENSIVE INCOME
Related tax effects allocated to each component of other comprehensive income
for the nine months ended September 30,1998 (000's omitted)
<TABLE>
<CAPTION>
Tax
Before-Tax (Expense) Net-of-Tax
Amount or Benefit Amount
---------- ---------- ----------
<S> <C> <C> <C>
Foreign currency translation adjustments $ (4,652) $ 1,954 $ (2,698)
---------- --------- --------
Unrealized gains on securities:
Unrealized holding gains arising during period 15,650 (5,328) 10,322
Less: reclassification adjustment for gains
realized in net income 15,286 (5,350) 9,936
---------- --------- --------
Net unrealized gains 364 22 386
---------- --------- --------
Minimum pension liability adjustment 0 0 0
---------- --------- --------
Other comprehensive (loss) income $ (4,288) $ 1,976 $ (2,312)
========== ========= ========
</TABLE>
11
<PAGE> 13
Accumulated Other Comprehensive Income Balances
<TABLE>
<CAPTION>
Accumulated
Foreign Unrealized Other
Currency Gains on Comprehensive
Items Securities Income
------------------ ---------------- ----------------
<S> <C> <C> <C>
Beginning balance $ (14,141) $ 26,237 $ 12,096
Current-period change (2,698) 386 (2,312)
------------------ ---------------- ----------------
Ending balance $ (16,839) $ 26,623 $ 9,784
================== ================ ================
</TABLE>
The provisions of FASB Statement 130 were adopted as of January 1, 1998.
(4) REINSURANCE
The Company accounts for reinsurance contracts under FASB Statement 113. The
Company recognizes the income on reinsurance contracts principally on a pro-rata
basis over the life of the policies covered under the reinsurance agreements.
Reinsurance Recoverables on Unpaid Losses are included as an asset in the
Balance Sheet under the caption "Reinsurance Receivable." Ceded Unearned
Premiums are included as an asset in the Balance Sheet under the caption
"Prepaid Reinsurance Premiums."
The effect of reinsurance on premiums earned is as follows for the nine months
and three months ended September 30, 1998 and 1997:
<TABLE>
<CAPTION>
(in thousands)
Nine Months Ended
September 30, 1998 September 30, 1997
------------------ ------------------
<S> <C> <C>
Direct premiums $ 1,928,789 $ 1,841,110
Reinsurance assumed 84,466 125,564
Reinsurance ceded (919,298) (873,004)
---------------- ---------------
Net premiums earned $ 1,093,957 $ 1,093,670
================ ===============
</TABLE>
<TABLE>
<CAPTION>
(in thousands)
Three Months Ended
September 30, 1998 September 30, 1997
------------------ ------------------
<S> <C> <C>
Direct premiums $ 645,504 $ 619,697
Reinsurance assumed 23,823 34,767
Reinsurance ceded (295,077) (289,580)
--------------- ---------------
Net premiums earned $ 374,250 $ 364,884
=============== ===============
</TABLE>
12
<PAGE> 14
(5) COMMITMENTS AND CONTINGENCIES
For a comprehensive description of the Company's litigation, see Item III of the
Company's 1997 Form 10-K.
Alabama and Related Litigation:
Certain of ABIG's subsidiaries, including the Company, are presently parties to
a number of individual consumer and class action lawsuits pending in Alabama
involving premium, rate, marketing, sales practices, disclosure, and policy
coverage issues. While a number of similar suits have been filed in other
jurisdictions, the insurance and finance industries have been targeted in
Alabama by plaintiffs' lawyers who enjoy a favorable judicial climate. The
Company typically has been named as a co-defendant with one or several retailer
or finance companies who have sold the Company's product to a consumer. Other
insurers are also joined as co-defendants in some of the suits. Although the
Alabama lawsuits and similar suits pending in Mississippi and other
jurisdictions generally involve relatively small amounts of actual or
compensatory damages, they typically assert claims requesting substantial
punitive awards or purport to represent a large class of policyholders.
On November 12, 1998, the Company and three of its accounts entered into a
settlement of all claims in class action litigation consolidated by the Panel on
Multi-District Litigation in the United States District Court for the Middle
District of Alabama, contingent upon approval of the fairness of the settlement
by the District Court and other important conditions. This series of class
actions involved the largest collective class exposure to the Company. Under the
terms of the settlement, without admitting any liability, the Company and its
relevant subsidiaries will contribute approximately $15 million in distributions
to the classes and subclasses, and has agreed to be bound by an injunction
limiting the percentage of authorized non-filing insurance premium to be charged
consumer finance and retailer accounts during 6 year and 18 month periods,
respectively. The Company will also likely incur approximately $2 million in
expenses associated with implementing the settlement. Since this settlement was
reached prior to the issuance of the Company's third quarter financial
statements, the settlement and associated expenses have been accrued in the
third quarter results.
While none of the Company's remaining cases are necessarily significant in terms
of financial risk to the Company, the judicial climate in Alabama and
Mississippi is such that the outcome of these cases is extremely unpredictable.
Moreover, class action lawsuits to which the Company is a party do not lend
themselves to potential damage calculation. There are still a number of cases
pending, and it is expected that more suits alleging essentially the same causes
of action are likely to continue to be filed during 1998. The Company denies any
wrongdoing in any of these suits and believes that it has not engaged in any
conduct that would warrant an award of punitive damages or that the class
allegations have merit. The Company has been advised by legal counsel that it
has meritorious defenses to all claims being asserted against it. The Company
believes, based on information currently available, that any liabilities that
could result are not expected to have a material effect on the Company's
financial position.
Merger-related Litigation:
In late January and early February 1998, Cendant Corporation ("Cendant")
commenced litigation (the "Cendant Florida Litigation") in the United States
District Court for the Southern District of Florida, Miami Division, against the
Company, members of the Company's Board, American International Group, Inc.
("AIG") and a wholly owned subsidiary of AIG, challenging the validity of
certain provisions in the merger agreement the Company originally entered into
with AIG on December 21, 1997, which agreement was amended in January 1998 and
again at the end of February 1998 ("AIG Merger Agreement"), with respect to
acquisition proposals by third parties. Cendant's complaint in the Cendant
Florida Litigation also challenged the terms of the stock option agreement
between the Company and AIG. Pursuant to the terms of a settlement agreement
providing for the termination of the AIG Merger Agreement and the payment to AIG
by the Company of $100 million and by Cendant of $10 million (the "Settlement
Agreement"), Cendant has taken the necessary actions to cause the dismissal of
all claims asserted in the Cendant Florida Litigation against all defendants,
including the Company and members of the Company's Board. Also pursuant to the
terms of the Settlement Agreement, AIG has taken the necessary actions to cause
the dismissal of claims against Cendant alleging violations of the federal
securities laws in connection with Cendant's bid to acquire the Company.
In late January and early February 1998, five putative class actions on behalf
of American Bankers' shareholders were filed in United States District Court for
the Southern District of Florida alleging causes of action arising out of the
proposed merger with AIG including claims that certain members of the Company's
Board breached their fiduciary duties and that the Company violated certain
provisions of the federal securities laws in connection with the proposed merger
with AIG. The Company and its directors believe that the claims asserted in
these actions are totally without merit and intend to vigorously contest them.
The District Court judge ordered that these cases be consolidated and that the
plaintiffs file a consolidated complaint. That consolidated complaint was filed
and the Company and directors filed an answer. The parties are presently engaged
in various pretrial matters.
13
<PAGE> 15
Other:
The Company, in the normal course, is subject to regulatory reviews and market
conduct examinations from each of the states in which it conducts business.
During 1998, a multi-state market conduct review was initiated under the
auspices of the NAIC. That review is the subject of continuing discussions and
negotiations between the company and the states. Assuming certain conditions
outside the control of the Company are met, it is possible that a consent
agreement incorporating a market compliance plan would be reached during the
fourth quarter of 1998.
The Company is involved with a number of cases in the ordinary course of
business relating to insurance matters, or more infrequently, certain corporate
matters. Generally, the Company's liability is limited to specific amounts
relating to insurance or policy coverage for which provision has been made in
the financial statements. Other cases involve general corporate matters which
generally do not represent significant contingencies for the Company.
14
<PAGE> 16
(6) SEGMENT INFORMATION
Gross collected premiums, net premiums earned and (loss) income before
federal income taxes are summarized as follows:
<TABLE>
<CAPTION>
(in thousands)
Nine Months Ended
September 30,
-------------
1998 1997
----------- -----------
<S> <C> <C>
GROSS COLLECTED PREMIUMS:
Life $ 701,892 $ 633,215
Property and Casualty 1,388,352 1,386,945
----------- -----------
Total $ 2,090,244 $ 2,020,160
=========== ===========
NET PREMIUMS EARNED:
Life $ 324,948 $ 323,560
Property and Casualty 769,009 770,110
----------- -----------
Total $ 1,093,957 $ 1,093,670
=========== ===========
INCOME BEFORE INCOME TAXES:
Life $ 51,014 $ 46,610
Property and Casualty 74,322 89,269
Other (117,981) (4,668)
----------- -----------
7,355 131,211
Interest Expense 15,333 12,091
----------- -----------
Total (Loss) Income before Income Taxes $ (7,978) $ 119,120
=========== ===========
</TABLE>
(7) ACCOUNTING FOR INVESTMENTS
The Company accounts for its investments according to the Financial Accounting
Standards Board's Statement 115-Accounting for Certain Investments in Debt and
Equity Securities.
This Statement addresses the accounting and reporting for investments in equity
securities that have readily determinable fair values and for all investments in
debt securities. Those investments are to be classified in three categories and
accounted for as follows:
HELD-TO-MATURITY - Securities for which the enterprise has the positive intent
and ability to hold to maturity. These securities are carried at amortized cost.
AVAILABLE-FOR-SALE - Securities not classified as trading or held-to-maturity.
These securities are carried at market value with the unrealized holding gain or
loss reported as a separate component of equity, net of the income tax effect.
TRADING SECURITIES - Securities that are bought and held principally for the
purpose of selling them in the near term. These securities are carried at market
value with the unrealized holding gain or loss included in earnings.
15
<PAGE> 17
The detail of Cost and Statement Value for the Fixed Maturities and Equity
Securities held at September 30, 1998 is as follows:
(in thousands)
Amortized Statement
Cost Value
---------- ----------
FIXED MATURITIES
Held-to-Maturity Securities $ 771,107 $ 771,107
Available-for-Sale Securities 1,065,654 1,094,408
Trading Securities -- --
---------- ----------
Total Fixed Maturities $1,836,761 $1,865,515
---------- ----------
Net unrealized gain $ 28,754
----------
Market
Cost Value
-------- --------
EQUITY SECURITIES
Held-to-Maturity Securities $ -- $ --
Available-for-Sale Securities 123,406 134,320
Trading Securities -- --
-------- --------
Total Equity Securities $123,406 $134,320
-------- --------
Net unrealized gain $ 10,914
--------
An analysis of the realized gains and losses of the Company for the nine months
ended September 30, 1998, is as follows:
<TABLE>
<CAPTION>
(in thousands)
Three Months Nine Months
Ended Ended
<S> <C> <C>
Gross realized gains from sales of Available-for-Sale Securities $ 7,885 $ 19,847
Gross realized losses from sales of Available-for-Sale Securities (1,930) (4,815)
-------- --------
Net realized gain from investment activity 5,955 15,032
Net realized gain from other investment activity 236 173
-------- --------
Total realized gain $ 6,191 $ 15,205
-------- --------
</TABLE>
The Company uses the specific identification method to determine cost for
computing the realized gains and losses.
16
<PAGE> 18
(8) Earnings per Share
The Company adopted FASB Statement 128 "Earnings per Share" for the period
ending December 31, 1997. This Statement replaces the presentation of primary
and fully diluted EPS with a presentation of basic and diluted EPS. All prior
year data has been restated to conform with the provisions of this Statement and
to reflect the two-for-one stock split effective September 1997. The following
is the required reconciliation of the numerator and denominator of the basic EPS
computation to the numerator and denominator of the diluted EPS computation.
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
-------------------- --------------------
1998 1997 1998 1997
------- ------- ------- -------
<S> <C> <C> <C> <C>
BASIC EPS:
Net Income $16,286 $29,839 $ 3,775 $84,876
Less convertible preferred stock dividends 1,549 1,797 4,900 5,391
------- ------- ------- -------
Income (Loss) available to common stockholders $14,737 $28,042 $(1,125) $79,485
======= ======= ======= =======
Weighted average shares outstanding 42,829 41,654 42,491 41,389
======= ======= ======= =======
Net Income (Loss) - per share $ 0.34 $ 0.67 $ (0.03) $ 1.92
======= ======= ======= =======
DILUTED EPS:
Income (Loss) available to common stockholders $14,737 $28,042 $(1,125) $79,485
Convertible preferred stock dividends 1,549 1,797 4,900 5,391
Convertible debentures interest 0 59 15 173
------- ------- ------- -------
Income available to common stockholders plus
assumed conversions $16,286 $29,898 $ 3,790 $85,049
======= ======= ======= =======
Weighted average shares outstanding-Basic EPS 42,829 41,654 42,491 41,389
Common stock options 195 596 506 421
Convertible Preferred Stock 3,962 4,594 3,962 4,594
Convertible debentures 0 300 0 300
------- ------- ------- -------
Weighted average shares outstanding-Diluted EPS 46,986 47,144 46,959 46,704
======= ======= ======= =======
Net Income - per share $ N/A $ 0.63 N/A $ 1.81
======= ======= ======= =======
</TABLE>
17
<PAGE> 19
(9) SUBSEQUENT EVENTS
On October 13, 1998, the Company and Cendant entered into an agreement
terminating the Cendant Merger Agreement. In connection with the termination,
Cendant and the Company have released each other from any claims relating to
Cendant's proposed acquisition of the Company and Cendant has made a $400
million cash payment to the Company. As a result of the termination Cendant has
terminated the Cendant offer.
On October 28, 1998, the Company completed its acquisition of MS Diversified
Corporation and its subsidiaries (MSD). The merger agreement for this
acquisition was signed on May 18, 1998. The Company paid approximately $54.6
million in cash for MSD.
18
<PAGE> 20
AMERICAN BANKERS INSURANCE GROUP, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Gross collected premiums were $695.4 million for the three months ended
September 30, 1998 compared to $716.4 million for the same period of 1997. Gross
collected premiums were $2.1 billion for the nine months ended September 30,
1998 and $2.0 billion for the same period of 1997.
During the three months ended September 30, 1998, total premiums and other
revenues were $426.2 million, an increase of $18.0 million over total premiums
and other revenues of $408.2 million for the same period in 1997. Investment
income increased by $4.2 million and realized gains increased by $2.1 million
for the third quarter of 1998 as compared to the same period of 1997.
The benefits and claims ratio improved to 34% for the three months ended
September 30, 1998 compared to 37% for the same period of 1997. However, this
improvement was offset by an increase in the commission ratio from 42% for the
three months ended September 30, 1997, to 47% for the same period in 1998.
Net income for the third quarter of 1998 was $16.3 million. Included in the net
income is a litigation settlement of approximately $11.0 million, merger related
expenses of approximately $2.0 million and hurricane losses of $1.3 million, all
amounts net of tax. Excluding these expenses, the Company reported net income of
$30.6 million. This compares with net income of $29.8 million for the same
period in 1997. (See discussion in "Change of Control of the Company" below)
Net income for the nine months ended September 30, 1998 was $3.8 million. The
income includes a merger termination fee paid to American International Group
and other merger related expenses totaling $76.4 million, net of tax.
FINANCIAL CONDITION
Stockholders' Equity decreased $.9 million from $813.9 million at December 31,
1997, to $813.0 million at September 30, 1998. The primary cause for the
decrease was a merger termination fee payment of $100 million offset by the
remaining income from operations.
LIQUIDITY AND CAPITAL RESOURCES
On September 30, 1998, $2.2 billion of securities, short-term investments and
cash comprised 57% of the Company's total assets. The securities were
principally readily marketable and did not include any significant concentration
in private placements.
In connection with the execution of the Cendant Merger Agreement, (as discussed
in the "Change of Control of the Company" below) the Company paid American
International Group, Inc. (AIG) a fee of $100 million for the termination of the
AIG Merger Agreement and certain other related agreements. The Company paid the
fee principally with funds provided by its credit facility.
On October 13, 1998, the Company received a fee of $400 million from Cendant
Corporation for the termination of the Cendant Merger Agreement. (See discussion
in "Change of Control of the Company" below)
The Company does not hold significant investments in equity securities;
consequently, market changes in the equity securities markets do not
significantly affect the investment portfolio.
19
<PAGE> 21
The Company expects to continue its policy of paying regular cash dividends;
however, future dividends are dependent on the Company's future earnings,
capital requirements and financial condition. In addition, the payment of
dividends is subject to the restrictions, and conditions described in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997.
CHANGE OF CONTROL OF THE COMPANY
The Company entered into an Agreement and Plan of Merger, dated March 23, 1998,
by and among Cendant Corporation ("Cendant"), Season Acquisition Corporation
("Season") and the Company (the "Cendant Merger Agreement") pursuant to which
(i) the previously announced tender offer by Season is being conducted (the
"Offer") and (ii) upon consummation of the Offer, the merger of the Company with
and into Season will be consummated (the "Merger"). The execution of the Cendant
Merger Agreement followed the public announcement by Cendant on January 27, 1998
of its proposal to acquire the Company for $58 per share of Common Stock, to be
paid in cash and common stock of Cendant and the subsequent announcement by
Cendant on March 16, 1998, increasing the per share price for its proposal from
$58 to $67.
Cendant's proposal to acquire the Company followed an announcement by the
Company that it had entered into an agreement with American International Group,
Inc. ("AIG") for the acquisition by AIG of 100 percent of the outstanding stock
of the Company pursuant to the merger (the "AIG Merger") of the Company with and
into AIGF, Inc., a Florida corporation and a newly formed wholly-owned
subsidiary of AIG, in accordance with the terms of the Agreement and Plan of
Merger, dated as of December 21, 1997 among the Company, AIG and AIGF as amended
and restated as of January 7, 1998, amended by Amendment No. 1 thereto dated as
of January 28, 1998, and as further amended and restated as of February 28, 1998
(the "AIG Merger Agreement"). In connection with the AIG Merger Agreement, the
Company had granted AIG an option to purchase a number of newly issued shares of
Common Stock equal to approximately 19.9% of the outstanding number of shares of
Common Stock pursuant to the Stock Option Agreement dated as of December 21,
1997, as amended and restated as of February 28, 1998 (the "Stock Option
Agreement"). In addition, Messrs. Landon and Gaston who hold approximately 8.3%
of the outstanding Common Stock had entered into a voting agreement (the "Voting
Agreement") with AIG pursuant to which these stockholders agreed to vote their
shares of Common Stock in favor of adoption of the AIG Merger Agreement and
approval of the AIG Merger and to grant to AIG an irrevocable proxy with respect
to such shares of Common Stock, subject to certain conditions.
The AIG Merger Agreement, Stock Option Agreement and Voting Agreement have been
terminated. On March 18, 1998, the Company, AIG and Cendant entered into a
settlement agreement (the "Settlement Agreement") pursuant to which AIG agreed
to temporarily waive certain provisions of the AIG Merger Agreement, which
waiver permitted the Company to terminate the AIG Merger Agreement and enter
into the Cendant Merger Agreement. On March 23, 1998, in accordance with the
terms of the Settlement Agreement, the Company paid to AIG a termination fee of
$100 million principally from funds provided by its short-term credit facility
and Cendant paid $5 million, and agreed to pay an additional $5 million to AIG
in respect of AIG's expenses, and the Company and AIG entered into a termination
agreement which resulted in the termination of the AIG Merger Agreement, the
Stock Option Agreement and the Voting Agreement.
On October 13, 1998, the Company and Cendant entered into an agreement
terminating the Cendant Merger Agreement . In connection with the termination,
Cendant and the Company have released each other from any claims relating to
Cendant's proposed acquisition of the Company and Cendant has made a $400
million cash payment to the Company. As a result of the termination Cendant has
terminated the Cendant offer.
20
<PAGE> 22
YEAR 2000
The Year 2000 project at ABIG was developed in early 1997 to position the
company to complete the renovation and upgrades of all mission critical
information systems by the end of 1998. The project involves the entire
enterprise and its major accounts and vendors. It has four phases, Awareness,
Assessment, Remediation, and Validation.
In early 1997, during the Awareness phase, a Corporate project team was created
with Executive Management sponsorship. In the Assessment phase, ABIG inventoried
all computer hardware and software. All specific systems that required
modification or replacement were assessed to determine the steps necessary to
remediate the Year 2000 issue. The Assessment phase was completed by the fourth
quarter of 1997.
The Remediation phase began in 1997. Remediation efforts on all core insurance
and accounting information processing systems has been completed. As ABIG
completes remediation, the systems and products are migrated to production.
The next phase, Validation testing, is in progress. In 1997, ABIG designed and
configured isolated testing labs for both mainframe and network client server
technologies. The technology infrastructure, such as operating systems, third
party software, wiring, network hardware and software were all upgraded to Year
2000 ready releases before being used for lab testing. The labs provide the
ability to test the systems using various future Year 2000 date/time scenarios.
Validation testing on all core insurance and accounting information processing
systems should be complete by the end of the first quarter in 1999. The testing
is a joint effort by the Information Systems Department and senior analysts from
each business area. Testing procedures have been documented using guidelines
developed by Internal Audit and are being coordinated by the Information Systems
Quality Assurance staff. Continuous reviews have been conducted throughout the
testing by senior analysts and will continue until all systems are tested. The
entire project reports to an Executive Steering Committee and is being monitored
and audited by the Internal Audit group.
In 1999, the Year 2000 compliance effort at ABIG will be limited to the
following:
Completion of all systems validation testing in the Year
2000 labs during the first quarter.
Auditing and testing of our remote accounts.
PC / Server upgrades and replacements.
Non information technology systems such as those pertaining to the operations of
the building have been evaluated using the same four phases described above.
Currently we are in the Validation testing phase. We expect that all non
information systems should be compliant by the first quarter of 1999.
In early 1997, ABIG completed a detailed impact analysis of all third party
software to determine Year 2000 compliance. Every vendor has been contacted and
plans were executed to upgrade to the vendor's Year 2000 ready release as soon
as the releases became available. There are only seven remaining product
upgrades. All are scheduled by the vendors to be released in December 1998. In
the first quarter of 1999, these products will be subject to the validation
testing described above.
ABIG surveyed its network of corporate clients and other third parties regarding
their Year 2000 readiness in our Assessment phase. All have responded to the
surveys. Our Validation phase includes plans to audit the readiness of the
corporate clients and to test electronic interface data in 1999.
Through September 30, 1998, the Company has expensed approximately $4.7 million
and estimates another $5 million to substantially complete the project.
While the Company is not presently aware of any significant exposure, there can
be no guarantee that the systems of ABIG's corporate clients and other third
parties will be converted in a timely manner, or that a failure to properly
convert by another company would not have a material adverse effect on the
Company. In the event the Company falls short of these projections, additional
internal resources will be focused on completing these projects or developing
contingency plans. The necessity of any contingency plan must be evaluated on a
case-by-case basis and will vary considerably in nature depending on the Year
2000 issue being addressed.
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 - SAFE HARBOR CAUTIONARY
STATEMENT
Except for the historical information contained herein, certain of the matters
discussed in this quarterly report are "forward-looking statements" as defined
in the Private Securities Litigation Reform Act of 1995, which involve certain
risks and uncertainties, including but not limited to, changes in general
economic conditions, interest rates, consumer confidence, competition,
environmental factors, and governmental regulations affecting the Company's
operations. See the Company's Annual Report Form on 10-K for the year ended
December 31, 1997, for a further discussion of these and other risks and
uncertainties applicable to the Company's business.
21
<PAGE> 23
PART II
OTHER INFORMATION
22
<PAGE> 24
ITEM 1 - LEGAL PROCEEDINGS
Commitments and Contingencies information which appears on page 13 elsewhere in
this report is incorporated by reference in this item. Additional information
regarding litigation can be found in the Company's 1997 Annual Report on Form
10-K.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 6(a) - EXHIBITS
(2.1) Stock Purchase Agreement by and among American Bankers Insurance Group,
Inc., David K. Johnston and Sherry L. Scott dated as of July 31, 1998.
(27) Financial Data Schedule (for SEC use only)
ITEM 6(b) - REPORTS ON FORM 8-K
None
23
<PAGE> 1
STOCK PURCHASE AGREEMENT
BY AND AMONG
AMERICAN BANKERS INSURANCE GROUP, INC.,
DAVID K. JOHNSTON
AND
SHERRY L. SCOTT
DATED AS OF JULY 31, 1998
<PAGE> 2
STOCK PURCHASE AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of July
31, 1998 by and among American Bankers Insurance Group, Inc. , a Florida
corporation having its principal business address at 11222 Quail Roost Drive,
Miami, Florida 33157 (the "Purchaser"), and David K. Johnston ("Johnston") and
Sherry L. Scott ("Scott") whose principal business address is 5760 N. High
Street, Columbus, Ohio 43085 (collectively, the "Sellers").
WHEREAS, the Sellers own, beneficially and of record, all of the issued
and outstanding shares of the capital stock of Safeware, The Insurance Agency,
Inc. (OH), an Ohio corporation ("Safeware OH"), Safeware, The Insurance Agency,
Inc. (MI), a Michigan corporation ("Safeware MI"), The ComputerInsurance Agency,
Inc., a California corporation ("CIA CA"), and The ComputerInsurance Agency,
Inc. (OH), an Ohio corporation ("CIA OH") (collectively, the "Companies"); and
WHEREAS, the Sellers desire to sell, and the Purchaser desires to
purchase, all of the issued and outstanding shares of the capital stock of each
of the Companies (collectively, the "Shares"), on the terms and subject to the
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS. When used in this Agreement, the following
terms shall have the respective meanings specified therefor below (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such other Person, or the power to appoint or
dismiss the directors of or others performing similar functions for such other
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" shall have the meaning provided in the recitals hereto.
"Balance Sheet Date" shall have the meaning provided in Section 3.6
hereof.
"Closing" shall have the meaning provided in Section 2.4 hereof.
"Closing Date" shall have the meaning provided in Section 2.4 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Companies" shall have the meaning provided in the recitals hereto.
<PAGE> 3
"Companies Intellectual Property Rights" shall have the meaning
provided in Section 3.12 hereto.
"Company Employee Plan" shall refer to any plan, program, policy,
practice, contract, agreement or other arrangement providing for compensation,
severance, termination pay, performance awards, stock or stock-related awards,
fringe benefits or other employee benefits or remuneration of any kind, whether
formal or informal, funded or unfunded, including without limitation, each
"employee benefit plan", within the meaning of Section 3(3) of ERISA which is or
has been maintained, contributed to, or required to be contributed to, by any of
the Companies or any Affiliate for the benefit of any "Employee" (as defined
below), and pursuant to which any such Company or any Affiliate has or may have
any material liability, contingent or otherwise.
"Company Insurance Contracts" shall have the meaning provided in
Section 3.26(b) hereof.
"Employee" shall mean any current, former, or retired employee,
officer, or director of any of the Companies or any Affiliate.
"Employee Agreement" shall refer to each management, employment,
severance, consulting, relocation, repatriation, expatriation, visa, work permit
or similar agreement or contract between any of the Companies or any Affiliate
and any Employee or consultant.
"Environmental Permits" shall have the meaning provided for in Section
3.22(c) hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Governmental Entity" shall mean any court, administrative agency or
commission, or other governmental authority or instrumentality.
"Hazardous Materials" shall have the meaning provided for in Section
3.22(a) hereof.
"IRS" shall mean the Internal Revenue Service.
"Law" shall mean any constitution, treaty, convention, statute, law,
code, ordinance, decree, order, rule, regulation, guideline, interpretation,
direction, policy or request, or judicial or arbitral decision or judgment.
"Liens" shall mean liens, security interests, options, rights of first
refusal, easements, mortgages, charges, claims, indentures, deeds of trust,
rights of way, restrictions on the use of real property, encroachments, licenses
to third parties, leases to third parties, security agreements, or any other
encumbrances and other restrictions or limitations on use of real or personal
property or irregularities in title thereto.
"Material Adverse Effect" shall mean an effect that is, or is
reasonably likely to be, materially adverse to the business, properties, assets,
liabilities, financial condition, results of operations or prospects of any of
the Companies.
"Multiemployer Plan" shall mean any "Pension Plan" (as defined below)
which is a "multiemployer plan" as defined in Section 3(37) of ERISA.
-2-
<PAGE> 4
"Pension Plan" shall refer to each Company Employee Plan which is an
"employee pension benefit plan" within the meaning of Section 3(2) of ERISA.
"Person" shall mean any individual, partnership, limited liability
company, corporation, trust, unincorporated association or other entity which is
recognized as having legal personality under national or international Law.
"Purchase Price" shall have the meaning provided in Section 2.2 hereof.
"Purchaser" shall have the meaning provided in the preamble hereto.
"Sellers" shall have the meaning provided in the preamble hereto.
"Share Purchase" shall have the meaning provided in Section 2.1 hereof.
"Share Register" shall mean, collectively, the register book maintained
by any of the Companies setting forth the names and addresses of each of the
owners of the shares of capital stock of such Company and the number of shares
owned by each such owner, and indicating each transfer or encumbrance of shares
by any owner thereof.
"Shares" shall have the meaning provided in the recitals hereto.
"Tax" or "Taxes" shall mean any net income, alternative or add-on
minimum tax, advance, corporate, gross income, gross receipts, sales, use, ad
valorem, franchise, profits, license, value-added, withholding, payroll,
employment, recapture, excise, property, stamp or occupation tax, governmental
fee or other like assessment or charge of any kind whatsoever, together with any
interest or any penalty imposed by any governmental authority with respect
thereto and any liability for such amounts as a result of either being a member
of an affiliated group or of any contractual obligation with any other Person
with respect to such amounts and including any liability for taxes of a
predecessor entity.
ARTICLE II
SALE AND PURCHASE OF SHARES
2.1 SALE OF SHARES. On the terms and subject to the conditions set
forth in this Agreement, the Sellers agree to sell and transfer to the Purchaser
at the Closing (as hereinafter defined), and the Purchaser agrees to purchase
from the Sellers at the Closing, the Shares, free and clear of all Liens (the
"Share Purchase"). At or immediately following the Closing, the Sellers shall
cause the Companies to duly enter the transfers of the Shares in their
respective Share Registers.
2.2 PURCHASE PRICE FOR SHARES. In consideration for the sale by the
Sellers to the Purchaser of the Shares, the Purchaser shall pay to the Sellers
on the Closing Date an aggregate of $4,700,000 by wire transfer in immediately
available funds to the account specified by the Sellers (the "Purchase Price").
The Sellers shall specify the account to the Purchaser at least two business
days prior to the Closing. For purposes of this Section 2.2, "business day"
shall mean any day other than a Saturday, a Sunday or a day on which national
banks in the United States are authorized or obligated by Law to close. The
Purchase Price shall be allocated among the Shares of each of the Companies as
set forth in Exhibit A hereto.
-3-
<PAGE> 5
2.3 CONTINGENT PAYMENTS FOR SHARES.
(a) In further consideration for the sale by the Sellers to the
Purchaser of the Shares, the Purchaser agrees to pay to the Sellers, in annual
increments for each of the four one-year periods immediately following the
Closing, additional contingent payments not to exceed an aggregate of
$3,000,000. Such payments shall be based upon, and subject to, the achievement
by the Companies during such four-year period of specific financial results and
shall be computed in accordance with the earn-out schedule attached hereto as
Exhibit B. The Purchaser shall make the required computation and pay the amount
due for each year within 60 days after the close of the year. All such
computations shall be prepared in accordance with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout such four-year
period in the same manner as in the preparation of the Company Financial
Statements (as defined in Section 3.6 hereof). Each such payment shall be
accompanied by copies of all work papers generated by the Purchaser in making
such computations, and the Purchaser shall afford the Sellers and their agents
or representatives, including accountants and attorneys, reasonable access
during regular business hours to such of the Companies' books and records
concerning such computations as the Sellers may reasonably request. If any
dispute arises between the Purchaser and the Sellers concerning the computation,
the matter shall be resolved by submitting it to a major, national ("big six")
firm of independent certified public accountants which will be selected by the
Purchaser but will not be the accounting firm regularly retained by the
Purchaser. The determination of the accounting firm with respect to such dispute
shall be binding on the Purchaser and the Sellers, and the costs and expenses of
such determination shall be borne equally by the Purchaser and the Sellers.
(b) Solely as a courtesy to the Sellers, the Purchaser agrees that it
will pay eight percent (8%) of any contingent payments payable to the Sellers
pursuant to Section 2.3(a) of this Agreement to Marsh, Berry and Company, Inc.,
7466 Auburn Road, Concord, Ohio 44077 ("Marsh, Berry"). Such payments by the
Purchaser to Marsh, Berry shall be made at the same time that the related
payments from which they shall be deducted are made to the Sellers under Section
2.3(a). Any such payments shall fully discharge the Purchaser's obligations to
the Sellers under Section 2.3(a) to the extent of the amount thereof. Nothing
herein shall create any rights in Marsh, Berry against the Purchaser or release
the Sellers from any obligations they may have to Marsh, Berry. The Purchaser
shall not be liable for any actions taken or omitted under this Section 2.3(b),
and the Sellers shall indemnify and hold harmless the Purchaser against all
claims, losses, liabilities, damages, deficiencies, costs and expenses,
including reasonable attorneys' fees, which may be incurred by the Purchaser as
a result of such actions or omissions, so long as the Purchaser shall have acted
in good faith and without gross negligence.
2.4 CLOSING. The Closing of the Share Purchase referred to in Section
2.1 (the "Closing") shall take place at 11:00 a.m. at the offices of Jorden Burt
Boros Cicchetti Berenson & Johnson LLP, 777 Brickell Avenue, Suite 500, Miami,
Florida 33131 on July 31, 1998, or at such other time, location and date as may
be agreed upon by the parties hereto (the "Closing Date"). On the Closing Date,
the Sellers shall deliver to the Purchaser, against payment as provided in
Section 2.2 hereof, certificates representing the Shares, duly endorsed in
blank, or accompanied by stock powers duly endorsed in blank, with all necessary
transfer tax and other revenue stamps, acquired at the Sellers' expense, affixed
thereto.
2.5 TRANSFER TAXES AND FEES. The Sellers shall pay all Taxes charged
to grantors, transferors or assignors under applicable Law in connection with
the transactions contemplated hereunder, together with all other transfer,
sales, recording and filing fees resulting from the transfer of the Shares to
the
-4-
<PAGE> 6
Purchaser. The Sellers, their successors and assigns shall indemnify and
hold the Purchaser and the Companies harmless from and against any and all
liabilities for any Taxes or fees for which the Sellers are liable in connection
with any Tax on any gain on income recognized by the Sellers on or as a result
of the sale or transfer of any Shares by the Sellers to the Purchaser.
2.6 SECTION 338(H)(10) ELECTION. The Purchaser shall make an election
under Section 338(h)(10) of the Internal Revenue Code of 1986, as amended (the
"Code") (and any corresponding election under state, local and foreign Tax law),
with respect to the purchase and sale of the shares of capital stock of Safeware
OH and CIA CA pursuant to this Agreement (the "Section 338(h)(10) Elections").
Each of the Sellers shall join with the Purchaser in making the Section
338(h)(10) Elections and, in connection therewith, agrees to take all such
actions and make all such filings (including filings, jointly with the
Purchaser, of Forms 8023 with the IRS) as may be necessary or appropriate to
implement the Section 338(h)(10) Elections in compliance with the Code and
regulations thereunder. Neither Safeware OH nor CIA CA shall be liable for any
Tax under Section 1374 of the Code in connection with the deemed sale of such
Company's assets caused by the Section 338(h)(10) Elections. The Sellers shall
include any income, gain, loss, deduction or other tax item resulting from the
Section 338(h)(10) Elections on their Tax returns to the extent permitted by
applicable law. The Sellers shall also pay any Tax imposed on Safeware OH and/or
CIA CA attributable to the Section 338(h)(10) Elections, including but not
limited to: (i) any Tax imposed under Section 1374 of the Code, (ii) any Tax
imposed under Regulation Section 1.338(h)(10)-1(e)(5) under the Code, and (iii)
any state, local or foreign Tax imposed on the gain of either or both such
Companies.
2.7 TAX ADVICE. The Sellers are relying on their own tax advisors with
respect to all matters related to this Agreement and acknowledge that the
Purchaser, its officers, financial advisors, accountants and counsel are making
no representations or warranties concerning the tax treatment of any such
matter.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers, jointly and severally, represent and warrant to the
Purchaser, subject to the exceptions set forth in the Sellers' Disclosure
Schedule attached hereto as Exhibit C (the "Disclosure Schedule"), as follows:
3.1 ORGANIZATION OF THE COMPANIES. Each of the Companies is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation as identified in the recitals to this Agreement.
Each of the Companies has the corporate power to own its property and to carry
on its business as now being conducted and as proposed to be conducted by each
such Company. Each of the Companies is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which the failure to
be so qualified would have a Material Adverse Effect. Each of the Companies has
delivered a true and correct copy of its charter and bylaws, each as amended to
date, to the Purchaser.
3.2 CAPITAL STRUCTURES OF THE COMPANIES. The authorized capital stock
of Safeware OH consists of 750 shares of Common Stock, without par value, of
which 150 shares are issued and outstanding and held by the Sellers. The
authorized capital stock of Safeware MI consists of 50,000
-5-
<PAGE> 7
shares of Common Stock, $1.00 par value per share, of which 1,000 shares are
issued and outstanding and held by the Sellers. The authorized capital stock of
CIA CA consists of 100,000 shares of Common Stock, without par value, of which
10,000 shares are issued and outstanding and held by the Sellers. The authorized
capital stock of CIA OH consists of 500 shares of Common Stock, without par
value, of which 500 shares are issued and outstanding and held by the Sellers.
The Shares are duly authorized, validly issued, fully paid and non-assessable
and are not subject to any preemptive rights created by statute, charter or
bylaws or any agreement to which any of the Companies is a party or by which it
is bound. There are no convertible securities, options, warrants, calls, rights,
commitments or agreements of any character to which any of the Companies is a
party or by which any of them is bound obligating such Company to issue,
deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold,
repurchased or redeemed, any shares of the capital stock of such Company or
obligating such Company to issue, grant, extend, accelerate the vesting of,
change the price of, or otherwise amend or enter into any such convertible
security, option, warrant, call, right, commitment or agreement. The respective
shareholding and percentage ownership interests of each of the Sellers in each
of the Companies are set forth in Exhibit A hereto.
3.3 OFFICERS AND DIRECTORS; SUBSIDIARIES; AFFILIATES. All the duly
elected or appointed officers and directors of the respective Companies are
identified in Exhibit D hereto. Section 3.3 of the Disclosure Schedule sets
forth for each of the Companies each of its subsidiaries and Affiliates and each
Person in which such Company owns or has ever owned any shares of stock or any
other interest.
3.4 AUTHORITY. Each of the Sellers has the requisite capacity, power
and authority to enter into this Agreement and to carry out his or her
obligations and the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by each of the Sellers and is a valid
and legally binding obligation of each of the Sellers, enforceable against each
of them in accordance with its terms.
3.5 NO CONFLICT; NO DEFAULT. The execution and delivery of this
Agreement by each of the Sellers does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in any
violation of, or default under (with or without notice or lapse of time, or
both), or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any benefit under (i) any provision of the charter or
bylaws, each as amended, of any of the Companies or (ii) any material Lien,
lease, contract or other agreement or instrument, permit, concession, franchise,
license or Law applicable to such Company or its properties or assets or to
either of the Sellers. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity, is required
by or with respect to any of the Companies or the Sellers in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby, except for such consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not have a
Material Adverse Effect.
3.6 FINANCIAL STATEMENTS OF THE COMPANIES. The Sellers have previously
delivered to the Purchaser true and complete copies for each of the Companies of
(i) an unaudited balance sheet as of December 31, 1997 (the "Balance Sheet
Date") and unaudited statements of income, cash flows and stockholders' equity
for the three years ended December 31, 1997 together with all notes thereto and
(ii) any regularly prepared unaudited balance sheets and statements of income,
cash flows and stockholders' equity for all subsequent monthly and/or quarterly
periods together with all notes thereto (collectively, the "Company Financial
Statements"). Each of the Company Financial Statements has been prepared in
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accordance with GAAP applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto), and presents fairly
the financial position, results of operations and cash flows of the Companies as
of the dates and for the periods indicated, subject only, in the case of the
interim statements referred to in clause (ii) above, to normal year-end
adjustments that will not be material in amount or effect. There has been no
material adverse change in the business, assets, operations or financial
condition of any of the Companies since the Balance Sheet Date.
3.7 NO UNDISCLOSED LIABILITIES. None of the Companies has any
liabilities, either accrued or contingent (whether or not required to be
reflected in financial statements in accordance with GAAP), and whether due or
to become due, which individually or in the aggregate are material and (i) have
not been reflected in the Company Financial Statements for such Company, (ii)
have not been specifically described in this Agreement or in the Disclosure
Schedule or (iii) are not normal or recurring liabilities incurred since the
Balance Sheet Date in the ordinary course of business consistent with past
practices.
3.8 NO CHANGES. With respect to each of the Companies and since the
Balance Sheet Date, there has not been, occurred or arisen any:
(a) material adverse change in its financial condition, liabilities,
assets, business or prospects;
(b) amendments or changes in its charter or bylaws;
(c) capital expenditure by such Company, either individually or in the
aggregate, exceeding $10,000;
(d) destruction, damage to, or loss of any assets (whether or not
covered by insurance) that constitutes a Material Adverse Effect on the Company;
(e) labor trouble or claim of wrongful discharge of which such Company
has received written notice or of which it is aware, or other unlawful labor
practice or action;
(f) change in accounting methods or practices (including any change in
depreciation or amortization policies or rates) by such Company;
(g) revaluation by such Company of any of its assets;
(h) declaration, setting aside, or payment of a dividend or other
distribution with respect to the Shares of such Company, or any direct or
indirect redemption, purchase or other acquisition by such Company of any of its
Shares;
(i) increase in the salary or other compensation payable or to become
payable by such Company to any of its officers, directors or employees, or the
declaration, payment, or commitment or obligation of any kind for the payment,
by such Company, of a bonus or other additional salary or compensation to any
such person;
(j) acquisition, sale or transfer of any material asset of such
Company other than in the ordinary course of business;
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(k) amendment or termination of any material contract, agreement or
license to which such Company is a party;
(l) loan by such Company to any person or entity, or guaranty by such
Company of any loan;
(m) waiver or release of any material right or claim of such Company,
including any write-off or other compromise of any account receivable of such
Company;
(n) commencement or notice or threat of commencement of any
governmental proceeding against or investigation of such Company or its affairs,
to the best of the knowledge of the Sellers;
(o) other event or condition of any character that has or might
reasonably be expected to have a Material Adverse Effect on such Company;
(p) issuance or sale by such Company of any shares of its capital
stock or of any other securities;
(q) change in pricing or premiums or royalties set or charged by such
Company; or
(r) negotiation or agreement by such Company to do any of the things
described in the preceding clauses (a) through (q) (other than negotiations with
the Purchaser and its representatives regarding the transactions contemplated by
this Agreement).
3.9 TAX AND OTHER RETURNS AND REPORTS. Except for such matters that
would not, individually or in the aggregate, have a Material Adverse Effect:
(a) each of the Companies as of the Closing Date will have prepared
and timely filed or made a timely request for extension for all required
federal, state, local and foreign returns, estimates, information statements and
reports (collectively the "Returns") relating to any and all Taxes concerning or
attributable to such Company or its operations and such Returns are true and
correct and have been completed in accordance with applicable Law;
(b) each of the Companies as of the Closing Date: (i) will have paid
or accrued all Taxes it is required to pay or accrue and (ii) will have withheld
and timely remitted with respect to its Employees all federal and state income
taxes, FICA, FUTA and other Taxes required to be withheld and remitted;
(c) there are no Liens on the assets of any of the Companies relating
to or attributable to Taxes other than Liens for taxes not yet due and payable;
(d) for each of the Companies, the tax basis in its assets for
purposes of determining its future amortization, depreciation and other federal
income tax deductions is properly reflected on such Company's tax books and
records;
(e) each of the Companies has established (and until the Closing will
establish) on its respective books and records reserves (to be specifically
designated as an increase to current liabilities) that are adequate for the
payment of all taxes not yet due and payable;
(f) no federal, state, local or foreign audits or other administrative
proceedings or court proceedings are presently pending with regard to any Taxes
or Returns in respect of any of the Companies.
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No tax authority has threatened or has any reasonable basis to assert against
any of the Companies any deficiency or claim for additional taxes; and
(g) none of the Companies is a party to or owes any amount under any
tax-sharing or allocation agreement.
3.10 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no material
agreement, judgment, injunction, order or decree binding upon any of the
Companies which has or could reasonably be expected to have the effect of
prohibiting or materially impairing any business practice of such Company, any
acquisition of property by such Company or the conduct of business by such
Company as currently conducted and as currently proposed to be conducted.
3.11 TITLE OF PROPERTIES; ABSENCE OF LIENS AND ENCUMBRANCES; CONDITION
OF EQUIPMENT.
(a) Section 3.11(a) of the Disclosure Schedule sets forth all of the
real property which each of the Companies owns or leases.
(b) Each of the Companies has good and valid title to, or, in the case
of leased properties and assets, valid leasehold interests in, all of its
material tangible properties and assets, real, personal and mixed, used in its
business, free and clear of any Liens except for such imperfections of title and
encumbrances, if any, which are not substantial in character, amount or extent,
and which do not materially detract from the value, or interfere with the
present use, of the property subject thereto or affected thereby.
(c) Section 3.11(c) of the Disclosure Schedule sets forth the fixed
asset schedule of equipment (the "Equipment") owned or leased by each of the
Companies. The Equipment is, taken as a whole with respect to each of the
Companies, (i) adequate for the conduct of the business of such Company
consistent with its past practice, (ii) suitable for the uses to which it is
currently employed, (iii) in good operating condition, (iv) regularly and
properly maintained, and (v) not obsolete, dangerous or in need of renewal or
replacement, except for renewal or replacement in the ordinary course of
business.
3.12 INTELLECTUAL PROPERTY. Each of the Companies owns, or is licensed
or otherwise entitled to use rights to, all patents, trademarks, trade names,
service marks, copyrights, and any applications therefor, maskworks, net lists,
schematics, technology, know-how, computer software programs or applications and
tangible or intangible proprietary information or material that are used or
currently proposed to be used in the business of such Company as currently
conducted (the "Companies Intellectual Property Rights"). Section 3.12 of the
Disclosure Schedule sets forth all patents, trademarks, registered and material
unregistered copyrights, trade names and service marks, and any applications
therefor, included in the Companies Intellectual Property Rights, and specifies
the jurisdictions in which each Companies Intellectual Property Right has been
issued or registered or in which an application for such issuance and
registration has been filed, including the respective registration or
application numbers and the names of all registered owners, together with a list
for each of the Companies of all of its currently marketed software products and
an indication as to which, if any, of such software products have been
registered for copyright protection with the United States Copyright Office and
any foreign offices and by whom such items have been registered. None of the
Companies has received any request to make any such registration or is a party
to any material licenses, sublicenses or other agreements pursuant to which such
Company or any other person is authorized to use any Companies Intellectual
Property Right or other
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trade secret material to such Company. None of the Companies is, or will be as a
result of the execution and delivery of this Agreement or the performance by the
Sellers of their obligations hereunder, in violation of any license, sublicense
or agreement described in Section 3.12 of the Disclosure Schedule. Each of the
Companies is the sole and exclusive owner or licensee of, with all right, title
and interest in and to (free and clear of any Liens), its Companies Intellectual
Property Rights, and has sole and exclusive rights (and is not contractually
obligated to pay any compensation to any third party in respect thereof) to the
use thereof or the material covered thereby in connection with the services or
products in respect of which such Companies Intellectual Property Rights are
being used. No claims with respect to Companies Intellectual Property Rights
have been asserted or, to the knowledge of each of the Companies, are threatened
by any person, nor does any of the Companies know of any valid grounds for any
bona fide claims (i) to the effect that the manufacture, sale, licensing or use
of any product as now used, sold or licensed or proposed for use, sale or
license by any of the Companies infringes on any copyright, patent, trade mark,
service mark or trade secret, (ii) against the use by any of the Companies of
any trademarks, trade names, trade secrets, copyrights, patents, technology,
know-how or computer software programs and applications used in such Company's
business as currently conducted or as proposed to be conducted, or (iii)
challenging the ownership, validity or effectiveness of any Companies
Intellectual Property Rights. All registered trademarks, service marks and
copyrights held by any of the Companies are valid and subsisting. There is no
material unauthorized use, infringement or misappropriation of any of the
Companies Intellectual Property Rights by any third party, including any
Employee of or consultant to any of the Companies. None of the Companies (i) has
been sued or charged in writing as a defendant in any claim, suit, action or
proceeding which involves a claim of infringement of any patents, trademarks,
service marks, copyrights or violation of any trade secret or other proprietary
right of any third party and which has not been finally terminated prior to the
date hereof, (ii) has any knowledge of any such charge or claim or (iii) has any
knowledge of any infringement liability with respect to, or infringement or
violation by, such Company of any patent, trademark, service mark, copyright,
trade secret or other proprietary right of another. No Companies Intellectual
Property Right is subject to any outstanding order, judgment, decree,
stipulation or agreement restricting in any manner the licensing thereof by any
of the Companies. None of the Companies has entered into any agreement to
indemnify any other person against any charge of infringement of any Companies
Intellectual Property Right.
3.13 AGREEMENTS, CONTRACTS AND COMMITMENTS. Except as disclosed in
Section 3.13 of the Disclosure Schedule, none of the Companies has or is a party
to:
(a) any collective bargaining agreements;
(b) any agreements that contain any unpaid severance liabilities or
obligations;
(c) any bonus, deferred compensation, incentive compensation, pension,
profit-sharing or retirement plans, or any other employee benefit plans or
arrangements;
(d) any employment or consulting agreement, contract or commitment
with an employee or individual consultant or salesperson or consulting or sales
agreement, contract or commitment with a firm or other organization, not
terminable by such Company within thirty (30) days without liability, except to
the extent general principles of wrongful termination law may limit such
Company's ability to terminate employees at will;
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(e) agreement or plan, including, without limitation, any stock option
plan, stock appreciation right plan or stock purchase plan, any of the benefits
of which will be increased, or the vesting of benefits of which will be
accelerated, by the occurrence of any of the transactions contemplated by this
Agreement or the value of any of the benefits of which will be calculated on the
basis of any of the transactions contemplated by this Agreement;
(f) any fidelity or surety bond or completion bond;
(g) any lease of personal property having a value individually in
excess of $10,000;
(h) any agreement of indemnification or guaranty not entered into in
the ordinary course of business;
(i) any agreement, contract or commitment containing any covenant
limiting the freedom of such Company to engage in any line of business or
compete with any person;
(j) any agreement, contract or commitment relating to capital
expenditures and involving future obligations in excess of $10,000;
(k) any agreement, contract or commitment relating to the disposition
or acquisition of assets not in the ordinary course of business or any ownership
interest in any corporation, partnership, joint venture or other business
enterprise;
(l) any mortgages, indentures, loans or credit agreements, security
agreements or other agreements or instruments relating to the borrowing of money
or extension of credit, including guaranties referred to in clause (h) hereof;
(m) any purchase order or contract for the purchase of raw materials
or acquisition of assets involving $10,000 or more;
(n) any construction contracts;
(o) any distribution, joint marketing or development agreements;
(p) any other agreement, contract or commitment which involves $5,000
or more and is not cancelable without penalty within thirty (30) days; or
(q) any agreement which is otherwise material to such Company's
business.
None of the Companies has breached, or received in writing any claim
or threat that it has breached, any of the terms or conditions of any material
agreement, contract or commitment to which it is bound in such manner as would
permit any other party to cancel or terminate the same.
3.14 INTERESTED PARTY TRANSACTIONS. No officer or director of any of
the Companies or person who owns at least ten percent (10%) of the outstanding
capital stock of any of the Companies (nor any parent, child or spouse of any of
such persons, or any trust, partnership or corporation in which any of such
persons has or has had an interest), has or has had, directly or indirectly, (i)
an interest in any entity which
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furnished or sold, or furnishes or sells, services or products which any of the
Companies furnishes or sells or proposes to furnish or sell, or (ii) any
interest in any entity which purchases from or sells or furnishes to any of the
Companies any goods or services, or (iii) a beneficial interest in any contract
or agreement described in Section 3.13; provided, that ownership of no more than
one percent (1%) of the outstanding voting stock of a publicly traded
corporation shall not be deemed an "interest in any entity" for purposes of this
Section 3.14.
3.15 GOVERNMENTAL AUTHORIZATION. Section 3.15 of the Disclosure
Schedule accurately lists each material federal, state, county, local or foreign
governmental consent, license, permit, grant, or other authorization issued to
any of the Companies (i) pursuant to which such Company currently operates or
holds any interest in any of its properties or (ii) which is required for the
operation of its business or the holding of any such interest (herein
collectively called "Company Authorizations"), which Company Authorizations are
in full force and effect and constitute all Company Authorizations required to
permit the Companies to operate or conduct their business or hold any interest
in their properties.
3.16 LITIGATION. There is no action, suit, claim or proceeding of any
nature pending, or to the best knowledge of the Sellers, threatened against any
of the Companies, its properties or any of its officers or directors, in their
capacities as agents of such Company. To the best of the knowledge of the
Sellers, there is no investigation pending or threatened against any of the
Companies, its properties or any of its officers or directors, in their
capacities as agents of such Company, by or before any Governmental Entity. To
the best of the knowledge of the Sellers, and except as set forth in Section
3.16 of the Disclosure Schedule, no Governmental Entity challenges or questions
the legal right of any of the Companies to offer or sell any of its products as
they are now being offered or sold, and none of the Companies is or ever has
been subject to any judgment, order, fine, cease and desist order or other
sanction entered in an action, suit or proceeding initiated by a Governmental
Entity.
3.17 MINUTE BOOKS. The minute books of each of the Companies have been
made available to counsel for the Purchaser and contain complete and accurate
minutes of all meetings of directors and shareholders or actions by written
consent since the time of incorporation of each of the Companies.
3.18 BROKERS' AND FINDERS' FEES. None of the Companies has incurred or
will incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with this Agreement
or any transaction contemplated hereby.
3.19 INSURANCE. Section 3.19 of the Disclosure Schedule sets forth for
each of the Companies all insurance policies or fidelity bonds covering the
assets, business, equipment, properties, operations, employees, officers and
directors of such Company.
3.20 COMPLETE COPIES OF MATERIALS. The Sellers have delivered or made
available true and complete copies of each document (or summaries of same) which
has been requested by the Purchaser.
3.21 BINDING AGREEMENTS; NO DEFAULT. Each of the contracts, agreements
and other instruments shown on the Exhibits or on any lists or statements set
forth in the Disclosure Schedule to which any of the Companies is a party is a
legal, binding, and enforceable obligation by or against such Company (assuming
such contract, agreement or instrument has been duly authorized, executed and
delivered by the other party(ies) thereto and except to the extent that its
non-enforceability would not have a Material Adverse Effect on such Company),
and no party with whom any of the Companies has an
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agreement or contract is, to the best knowledge of the Sellers, in material
default thereunder or has breached any material terms or provisions thereof
(subject to all applicable bankruptcy, insolvency, reorganization and other laws
applicable to creditors' rights and remedies and to the exercise of judicial
discretion in accordance with general principles of equity).
3.22 ENVIRONMENTAL MATTERS.
(a) None of the Companies has: (i) operated any underground storage
tanks at any property that such Company has at any time owned, operated,
occupied or leased; or (ii) illegally released any amount of any substance that
has been designated by any Governmental Entity or by applicable federal, state
or local law as radioactive, toxic, hazardous or otherwise a danger to health or
the environment, including, without limitation, PBS, asbestos, petroleum,
urea-formaldehyde and all substances listed as hazardous substances pursuant to
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, or defined as a hazardous waste pursuant to the United States
Resource Conservation and Recovery Act of 1976, as amended, and the regulations
promulgated pursuant to said laws, (a "Hazardous Material"), but excluding
janitorial supplies properly and safely maintained. No Hazardous Materials are
present, in a form or concentration which would result in a violation of law or
present a risk to human health or the environment, as a result of the deliberate
actions of any of the Companies or, to the knowledge of the Sellers, as a result
of any actions of any third party or otherwise, in, on or under any property,
including the land and the improvements, ground water and surface water thereof,
that any of the Companies has at any time owned, operated, occupied or leased.
(b) None of the Companies has transported, stored, used, manufactured,
disposed of, released or exposed its employees or others to Hazardous Materials
in violation of any law in effect on or before the Closing Date, nor has any of
the Companies disposed of, transported, sold, or manufactured any product
containing a Hazardous Material (any or all of the foregoing being collectively
referred to as "Hazardous Materials Activities") in violation of any Law
promulgated by any Governmental Entity and in effect on or before the date
hereof to prohibit, regulate or control Hazardous Materials or any Hazardous
Material Activity.
(c) Each of the Companies currently holds all environmental approvals,
permits, licenses, clearances and consents (the "Environmental Permits")
necessary for the conduct of such Company's Hazardous Material Activities and
other businesses of such Company as such activities and businesses are currently
being conducted.
(d) No action, proceeding, revocation proceeding, amendment procedure,
writ, injunction or claim is pending or, to the knowledge of the Sellers,
threatened against any of the Companies concerning any Environmental Permit,
Hazardous Material or any Hazardous Materials Activity of such Company, and the
Sellers are not aware of any fact or circumstance which could involve any of the
Companies in any environmental litigation or impose upon any of the Companies
any environmental liability.
3.23 EMPLOYEE MATTERS AND BENEFIT PLANS.
(a) Section 3.23(a) of the Disclosure Schedule contains an accurate
and complete list of each Company Employee Plan and each Employee Agreement,
together with a schedule of all liabilities under any Employee Agreement,
whether or not accrued, under each such Company Employee Plan or Employee
Agreement. None of the Companies has any stated plan or commitment to establish
any new
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Company Employee Plan or Employee Agreement, to modify any Company Employee Plan
or Employee Agreement (except to the extent required by law or to conform any
such Company Employee Plan or Employee Agreement to the requirements of any
applicable law, in each case as previously disclosed to the Purchaser in
writing, or as required by this Agreement), or to enter into any Company
Employee Plan or Employee Agreement.
(b) The Sellers have made available to the Purchaser (i) correct and
complete copies of all documents embodying or relating to each Company Employee
Plan and each Employee Agreement including all amendments thereto and written
interpretations thereof; (ii) the most recent annual actuarial valuations, if
any, prepared for each Company Employee Plan; (iii) the three most recent annual
reports (Series 5500 and all schedules thereto), if any, required under ERISA or
the Code in connection with each Company Employee Plan or related trust; (iv) if
the Company Employee Plan is funded, the most recent annual and periodic
accounting of Company Employee Plan assets; (v) the most recent summary plan
description together with the most recent summary of material modifications, if
any, required under ERISA with respect to each Company Employee Plan; (vi) all
IRS determination letters and rulings relating to Company Employee Plans and
copies of all applications and correspondence to or from the IRS or the
Department of Labor ("DOL") with respect to any Company Employee Plan; (vii) in
the case of Multiemployer Plans, all valuation reports, summaries of
contributions and statements or schedules or notices of liabilities received
from such Multiemployer Plan at any time during the three years preceding the
date of this Agreement; (viii) all communications material to any Employee or
Employees relating to any Company Employee Plan and any proposed Company
Employee Plans, in each case, relating to any amendments, terminations,
establishments, increases or decreases in benefits, acceleration of payments or
vesting schedules or other events which would result in any material liability
to the Company; and (ix) all registration statements and prospectuses prepared
in connection with each Company Employee Plan.
(c) (i) Each of the Companies has performed in all material respects
all obligations required to be performed by it under each Company Employee Plan
and each Company Employee Plan has been established and maintained in all
material respects in accordance with its terms and in compliance with all
applicable Laws, including but not limited to ERISA and the Code; (ii) no
"prohibited transaction" within the meaning of Section 4975 of the Code or
Section 406 of ERISA, for which there is no statutory exemption available under
Section 408 of ERISA, has occurred with respect to any Company Employee Plan;
(iii) there are no actions, suits or claims pending, or, to the knowledge of the
Sellers, threatened or anticipated (other than routine claims for benefits)
against any Company Employee Plan or against the assets of any Company Employee
Plan; (iv) each Company Employee Plan can be amended, terminated or otherwise
discontinued after the Closing in accordance with its terms, without liability
to the Companies or the Purchaser (other than ordinary administration expenses
typically incurred pursuant to an amendment or a termination event); (v) there
are no inquiries or proceedings pending or, to the best knowledge of the Sellers
or any Affiliates, threatened by the IRS or DOL with respect to any Company
Employee Plan; and (vi) neither any of the Companies nor any Affiliate is
subject to any penalty or tax with respect to any Company Employee Plan under
Section 402(i) of ERISA or Section 4975 through 4980 of the Code.
(d) None of the Companies has ever maintained, established, sponsored,
participated in, or contributed to, any Pension Plan which is subject to Part 3
of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code.
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(e) At no time has any of the Companies contributed to any
Multiemployer Plan.
(f) No Company Employee Plan provides, or has any liability to
provide, life insurance, medical or other employee benefits to any Employee upon
his or her retirement or termination of employment for any reason, except as may
be required by statute.
(g) The execution of this Agreement and the consummation of the
transactions contemplated hereby will not (either alone or upon the occurrence
of any additional or subsequent events) constitute an event under any Company
Employee Plan, Employee Agreement, trust or loan that will or may result in any
payment (whether of severance pay or otherwise), acceleration, forgiveness of
indebtedness, vesting, distribution, increase in benefits or obligation to fund
benefits with respect to any Employee. No payment or benefit which will or may
be made by any of the Companies or the Purchaser or any of their respective
Affiliates with respect to any Employee will be characterized as an "excess
parachute payment," within the meaning of Section 280G(b)(1) of the Code.
(h) Each of the Companies (i) is in compliance in all material
respects with all applicable Laws respecting employment, employment practices,
terms and conditions of employment and wages and hours, in each case, with
respect to Employees; (ii) has withheld all amounts required by Law or by
agreement to be withheld from the wages, salaries and other payments to
Employees; (iii) is not liable for any arrears of wages or any taxes or any
penalty for failure to comply with any of the foregoing; and (iv) is not liable
for any payment to any trust or other fund or to any governmental or
administrative authority, with respect to unemployment compensation benefits,
social security or other benefits or obligations for Employees (other than
routine payments to be made in the normal course of business and consistent with
past practice).
(i) No work stoppage or labor strike against any of the Companies is
pending or, to the best knowledge of the Sellers, threatened. None of the
Companies is involved in or, to the best knowledge of the Sellers, threatened
with, any labor dispute, grievance, or litigation relating to labor, safety or
discrimination matters involving any Employee, including, without limitation,
charges of unfair labor practices or discrimination complaints, which, if
adversely determined, would, individually or in the aggregate, result in a
material liability to such Company or the loss of a material benefit by such
Company. None of the Companies has engaged in any unfair labor practices within
the meaning of the National Labor Relations Act which would, individually or in
the aggregate, directly or indirectly result in a material liability to such
Company or the loss of a material benefit by such Company. None of the Companies
is now or has been in the past a party to, or bound by, any collective
bargaining agreement or union contract with respect to Employees and no
collective bargaining agreement is being negotiated by any of the Companies.
3.24 REPRESENTATIONS COMPLETE. None of the representations or
warranties made by the Sellers, nor any statement made in any list or other
statement separately certified by the Sellers, nor any Schedule, Exhibit or
certificate furnished by the Sellers or any of the Companies pursuant to this
Agreement, when all such documents are read together in their entirety, contains
or will contain any untrue statement of a material fact as of the Closing, or
omits or will omit to state any material fact necessary in order to make the
statements contained herein or therein, in the light of the circumstances under
which made, not misleading.
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3.25 THIRD PARTY CONSENTS. Section 3.25 of the Disclosure Schedule
sets forth each consent, waiver or approval that is needed from any third party
in order to effect the Share Purchase or any of the transactions contemplated by
this Agreement.
3.26 INSURANCE COMPLIANCE MATTERS.
(a) Except as to matters of which neither of the Sellers is aware and
which do not individually or in the aggregate result in a Material Adverse
Effect: (i) each of the Companies is duly licensed or otherwise authorized to
conduct the business of insurance in each jurisdiction where it is required to
be so licensed or authorized; (ii) the business and operations of each of the
Companies have been conducted in compliance with all applicable Laws regulating
the business of insurance, including all applicable directives of insurance
regulatory authorities and market conduct recommendations resulting from market
conduct examinations of insurance regulatory authorities (collectively,
"Insurance Laws"); and (iii) each of the Companies and its agents have marketed,
sold and issued insurance products in compliance with Insurance Laws applicable
to the business of such Company and in the respective jurisdictions in which
such products have been sold. None of the Companies is subject to any order or
decree of any insurance regulatory authority relating specifically to such
Company (as opposed to insurance companies generally), and each of the Companies
has filed all reports required to be filed with any insurance regulatory
authority.
(b) To the best of the knowledge of the Sellers, and except as to
matters which do not, either individually or in the aggregate, result in a
Material Adverse Effect, all agreements of insurance that are issued by any of
the Companies (the "Company Insurance Contracts"), and any and all marketing
materials used by any of the Companies, are, to the extent required under
applicable Laws, on forms approved by applicable insurance regulatory
authorities or which have been filed with and not objected to by such
authorities within the period provided for objection, and such forms comply with
Insurance Laws applicable thereto and, as to premium rates established for
Company Insurance Contracts which are required to be filed with or approved by
insurance regulatory authorities, the rates have been so filed or approved, the
premiums charged conform thereto, and such premiums comply with applicable
Insurance Laws.
3.27 COMPLIANCE WITH OTHER LAWS. In addition to Insurance Laws, and
except as to matters of which neither of the Sellers is aware and which do not,
either individually or in the aggregate, result in a Material Adverse Effect,
each of the Companies has complied with, is not in violation of, and has not
received any notices of violation with respect to, any Law with respect to the
conduct of its business, or the ownership or operation of its business.
3.28 TANGIBLE NET WORTH. At the Closing, the Companies collectively
will have a tangible net worth (total stockholders equity less intangible
assets) of zero.
3.29 CERTAIN TAX MATTERS.
(a) Safeware OH has been a validly electing S corporation within the
meaning of Sections 1361 and 1362 of the Code at all times during such Company's
existence. CIA CA has been a validly electing S corporation within the meaning
of Sections 1361 and 1362 of the Code at all times since October 1, 1995. Both
Safeware OH and CIA CA will be S corporations up to and as of the Closing.
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(b) Neither Safeware OH nor CIA CA has, in the past 10 years, (i)
acquired assets from another corporation in a transaction in which such
Company's Tax basis for the acquired assets was determined, in whole or in part,
by reference to the Tax basis of the acquired assets (or other property) in the
hands of the transferor, or (ii) acquired the stock of any corporation which is
a "qualified subchapter S subsidiary" within the meaning of Section
1361(b)(3)(B) of the Code. ]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Sellers, subject to the
exceptions previously certified in writing by the Purchaser, as follows:
4.1 ORGANIZATION, STANDING AND POWER. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida. The Purchaser has the corporate power to own its properties
and to carry on its business as now being conducted.
4.2 AUTHORITY. The Purchaser has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Purchaser. This Agreement
has been duly executed and delivered by the Purchaser and constitutes the valid
and binding obligation of the Purchaser. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated hereby
will not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
benefit under (i) any provision of the Certificate of Incorporation or Bylaws of
the Purchaser or (ii) any mortgage, indenture, lease, contract or other
agreement or instrument, permit, concession, franchise, license, judgment,
order, decree, statute or Law applicable to the Purchaser or its properties or
assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity, is required by or with
respect to the Purchaser in connection with the execution and delivery of this
Agreement by the Purchaser or the consummation by the Purchaser of the
transactions contemplated hereby, except for such consents, authorizations,
filings, approvals and registrations which if not obtained or made would not
have a Material Adverse Effect on the Purchaser.
4.3 REPRESENTATIONS COMPLETE. None of the representations or
warranties made by the Purchaser herein, nor any statement made in any list or
other statement separately certified by the Purchaser, or in any Schedule,
Exhibit or certificate furnished by the Purchaser pursuant to this Agreement,
when all such documents are read together in their entirety, contains or will
contain any untrue statement of a material fact as of the Closing, or omits or
will omit to state any material fact necessary in order to make the statements
contained herein or therein, in the light of the circumstances under which made,
not misleading.
4.4 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which the Purchaser has received
any notice of assertion or as to which the Purchaser has a reasonable basis to
expect such notice of assertion, against the Purchaser which in any manner
challenges
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or seeks to prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Agreement.
4.5 BROKERS' AND FINDERS' FEES. The Purchaser has not incurred, and
will not incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
ARTICLE V
CONDUCT PRIOR TO THE CLOSING
5.1 CONDUCT OF BUSINESSES OF THE COMPANIES. During the period from the
date of this Agreement and continuing until the earlier of the termination of
this Agreement or the Closing, the Sellers shall cause each of the Companies
(except to the extent that the Purchaser shall otherwise consent in writing) to
carry on its business in the usual, regular and ordinary course in substantially
the same manner as heretofore conducted, to pay its debts and Taxes when due
subject (i) to good faith disputes over such debts or Taxes and (ii) in the case
of Taxes, to the Purchaser's consent to the filing of material Returns if
applicable, to pay or perform other obligations when due, and, to the extent
consistent with such business, use all reasonable efforts consistent with past
practice and policies to preserve intact such Company's present business
organization, keep available the services of its present officers and key
employees and preserve their relationships with customers, suppliers,
distributors, licensors, licensees, and others having business dealings with it,
to the end that the goodwill and ongoing business of each of the Companies shall
be unimpaired at the Closing. The Sellers shall promptly notify the Purchaser of
any event or occurrence not in the ordinary course of business of any of the
Companies which could have a Material Adverse Effect. Except as expressly
contemplated by this Agreement, the Sellers shall not cause or permit any of the
Companies to, and none of the Companies shall, without the prior written consent
of the Purchaser:
(a) Enter into any commitment or transaction (i) which requires
performance over a period longer than six months in duration except transactions
in the ordinary course of business, or (ii) to purchase fixed assets for a
purchase price in excess of $10,000;
(b) Grant any severance or termination pay (i) to any director or
officer or (ii) to any other employee except (x) payments made pursuant to
standard written agreements outstanding on the date hereof and as disclosed in
Section 3.13 of the Disclosure Schedule or (y) in the case of employees who do
not have standard written agreements, payments of up to two months salary;
(c) Transfer to any person or entity any rights to Companies
Intellectual Property Rights other than nonexclusive object code licenses;
(d) Enter into or amend any agreements pursuant to which any other
party is granted marketing or other rights of any type or scope with respect to
any products or technology of such Company;
(e) Violate, amend or otherwise modify the terms of any of the
contracts set forth in the Disclosure Schedule;
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(f) Commence any litigation;
(g) Declare or pay any dividends on or make any other distributions
(whether in cash, stock or property) in respect of any of its capital stock
(provided that dividends may be paid consistent with the tangible net worth
requirement set forth in Section 3.28), or split, combine or reclassify any of
its capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of capital stock of such
Company, or repurchase or otherwise acquire, directly or indirectly, any shares
of its capital stock;
(h) Issue, deliver or sell or authorize or propose the issuance,
delivery or sale of, or purchase or propose the purchase of, any shares of its
capital stock or securities convertible into, or subscriptions, rights, warrants
or options to acquire, or other agreements or commitments of any character
obligating it to issue any such shares or other convertible securities;
(i) Cause or permit any amendments to its Articles of Incorporation or
Bylaws;
(j) Acquire or agree to acquire by merging or consolidating with, or
by purchasing a substantial portion of the assets of, or by any other manner,
any business or any corporation, partnership, association or other business
organization or division thereof, or otherwise acquire or agree to acquire any
assets which are material, individually or in the aggregate, to the business of
such Company;
(k) Sell, lease, license or otherwise dispose of any of its properties
or assets which are material, individually or in the aggregate, to the business
of such Company, except in the ordinary course of business;
(l) Incur any indebtedness for borrowed money or guarantee any such
indebtedness or issue or sell any debt securities of such Company or guarantee
any debt securities of others except with respect to an existing lease line in
an amount not more than $10,000;
(m) Adopt or amend any employee benefit plan, or enter into any
employment contract except for offer letters in such Company's standard form for
newly hired employees, pay any special bonus or special remuneration to any
director or employee, or increase the salaries or wage rates of its employees;
(n) Revalue any of its assets, including without limitation writing
down the value of inventory or writing off notes or accounts receivable other
than in the ordinary course of business;
(o) Pay, discharge or satisfy in an amount in excess of $10,000 in any
one case any claim, liability or obligation (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment, discharge or
satisfaction in the ordinary course of business of liabilities reflected or
reserved against in such Company's financial statements (or the notes thereto);
(p) Make or change any material election in respect of Taxes, adopt or
change any accounting method in respect of Taxes, file any material Return or
any amendment to a material Return, enter into any closing agreement, settle any
claim or assessment in respect of Taxes, or consent to any extension or waiver
of the limitation period applicable to any claim or assessment in respect of
Taxes; or
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(q) Take, or agree in writing or otherwise to take, any of the actions
described in Sections 5.1(a) through (p) above, or any action which would make
any of the representations or warranties of the Sellers with respect to such
Company contained in this Agreement untrue or incorrect or prevent the Sellers
from performing their covenants hereunder.
5.2 NO SOLICITATION. After the date of this Agreement and prior to the
Closing, the Sellers shall not, and shall not cause or permit any of the
Companies (or any officers, directors, agents, representatives or Affiliates
thereof), directly or indirectly, with any party other than the Purchaser and
its designees, to:
(a) solicit, encourage, initiate or participate in any negotiations or
discussions with respect to any offer or proposal to acquire all or
substantially all of the business and properties of any of the Companies or to
purchase or acquire capital stock of any of the Companies, whether by merger,
purchase of assets, tender offer or otherwise;
(b) disclose any information not customarily disclosed to any person
(other than attorneys or financial advisors for any of the Companies) concerning
the business and properties of the Companies or afford to any person or entity
access to their properties, books or records; or
(c) assist or cooperate with any person to make any proposal to
purchase all or any part of the capital stock or assets of any of the Companies.
In the event any of the Companies shall receive any such written offer
or proposal, directly or indirectly, of the type referred to in clause (a) or
(c) above, or any request for disclosure or access pursuant to clause (b) above,
the Sellers shall immediately inform the Purchaser as to all material facts
relating to any such offer or proposal (including the identity of the party
making such offer or proposal and the specific terms thereof) and will cooperate
with the Purchaser by furnishing any information it may reasonably request.
5.3 STRATEGIC AGREEMENTS. The Sellers shall not cause or permit any of
the Companies, without the prior written consent of the Purchaser, which consent
will not be unreasonably withheld, to enter into any strategic alliance, joint
development or joint marketing agreement during the period from the date of this
Agreement and continuing until the earlier of the termination of this Agreement
or the Closing.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 CONSULTING AND NONCOMPETITION AND OTHER AGREEMENTS. At or before
the Closing, each of Johnston and Scott will enter into a consulting and
noncompetition agreement in substantially the form attached hereto as Exhibit E.
Effective as of the Closing, the Sellers will cause Ken Johnston to enter into
an agreement with Safeware OH in substantially the form of Exhibit F hereto.
6.2 ACCESS TO INFORMATION. The Sellers shall cause each of the
Companies to afford the Purchaser and its accountants, counsel and other
representatives reasonable access during normal business hours during the period
prior to the Closing to (a) all of such Company's properties, books, contracts,
commitments and records, and (b) all other information concerning the business,
properties and personnel
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of such Company as the Purchaser may reasonably request. The Sellers shall cause
each of the Companies to provide to the Purchaser and its accountants, counsel
and other representatives copies of internal financial statements promptly upon
request. No information or knowledge obtained in any investigation pursuant to
this Section 6.2 shall affect or be deemed to modify any representation or
warranty contained herein or the conditions to the obligations of the parties to
consummate the transactions contemplated by this Agreement. The Purchaser agrees
to treat as confidential and not to disclose to third parties, except as
required by law or otherwise provided herein, all information furnished pursuant
to this Section 6.2 except information which: (i) is or becomes generally
available to the public other than as a result of disclosure by the Purchaser in
violation of this Section 6.2; (ii) was available to or in the possession of the
Purchaser on a non-confidential basis prior to its being furnished pursuant to
this Section 6.2; or (iii) was received by the Purchaser from a third party
known by the Purchaser not to be bound by a confidentiality agreement with
respect thereto. The Purchaser may disclose such information to its lending
bank, to the Purchaser's agents, including its accountants and attorneys, and to
Cendant Corporation. In the event this Agreement is terminated and the Share
Purchase abandoned, the Purchaser shall return to the Sellers all such
information that is in written or other tangible form.
6.3 EXPENSES. All expenses incurred in connection with this Agreement
shall be the obligation of the party incurring such expenses.
6.4 PUBLIC DISCLOSURE. Unless otherwise required by Law, prior to the
Closing no disclosure (whether or not in response to an inquiry) regarding the
terms of this Agreement and the transactions contemplated hereby shall be made
by any party hereto unless approved by the Purchaser and the Sellers prior to
release, provided that such approval shall not be unreasonably withheld,
subject, in the case of the Purchaser, to the Purchaser's obligation to comply
with applicable securities laws.
6.5 CONSENTS. The Purchaser shall use its best efforts to obtain all
consents and approvals required to be obtained by it for the consummation of the
Share Purchase. The Sellers shall use their best efforts, and shall cause each
of the Companies to use its best efforts, to obtain all necessary consents,
waivers and approvals under any of such Company's material contracts, licenses,
leases or other agreements in connection with the transactions contemplated by
this Agreement. All such necessary consents are set forth in Section 6.5 of the
Disclosure Schedule.
6.6 LEGAL REQUIREMENTS. The Purchaser and the Sellers will take, and
the Sellers will cause each of the Companies to take, all reasonable actions
necessary to comply promptly with all legal requirements which may be imposed on
any of them with respect to the consummation of the transactions contemplated by
this Agreement, to cooperate with and furnish information to any party hereto
necessary in connection with any such requirements imposed upon such other party
in connection with the consummation of the transactions contemplated by this
Agreement, and to obtain (in cooperation with the other parties hereto) any
consent, approval, order or authorization of, or any registration, declaration
or filing with, any Governmental Entity or other person, required to be obtained
or made in connection with the taking of any action contemplated by this
Agreement.
6.7 BEST EFFORTS; ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES. Each of
the parties to this Agreement shall each use its best efforts to effectuate the
transactions contemplated hereby and to fulfill and cause to be fulfilled the
conditions to the Closing under this Agreement. Each party hereto, at the
reasonable request of another party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for
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effecting completely the consummation of this Agreement and the transactions
contemplated hereby.
ARTICLE VII
CONDITIONS TO PARTIES' OBLIGATIONS
7.1 CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The obligations of the
Purchaser to purchase the Shares on the Closing Date shall be subject to the
satisfaction at or prior to the Closing of each of the following conditions, any
of which may be waived, in writing, exclusively by the Purchaser:
(a) TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Sellers contained in this Agreement and in any Schedule or
Exhibit attached hereto shall be true and correct in all material respects on
and as of the Closing Date with the same effect as though such representations
and warranties had been made on and as of such date, and the Purchaser shall
have received a certificate signed by each of the Sellers, dated the Closing
Date, to such effect.
(b) PERFORMANCE OF AGREEMENTS. All of the agreements of the Sellers to
be performed prior to the Closing pursuant to the terms of this Agreement shall
have been duly performed in all material respects, and the Purchaser shall have
received a certificate signed by each of the Sellers, dated the Closing Date, to
such effect.
(c) CONSULTING AND NONCOMPETITION AGREEMENTS. Scott and Johnston shall
have entered into the consulting and/or noncompetition agreements provided for
in Section 6.1 of this Agreement.
(d) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY; NO LITIGATION. No
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Share Purchase shall be in
effect, nor shall any proceeding brought by any Governmental Entity, domestic or
foreign, seeking any of the foregoing be pending; nor shall there be any action
taken, or any Law enacted, entered, enforced or deemed applicable to such
transaction which makes the consummation thereof illegal. No other action, suit
or proceeding shall have been instituted or, to the best knowledge of the
Sellers, threatened before a court or other government body or before any
arbitrator or by any public authority wherein an unfavorable judgment,
injunction, order, decree, ruling or charge would restrain or prohibit any of
the transactions contemplated hereby or limit or restrict the operation of the
business of any of the Companies following such any such transaction.
(e) CONSENTS AND APPROVALS. All governmental and third-party consents,
waivers and approvals, if any, disclosed on any Schedule attached hereto or
necessary to permit the consummation of the transactions contemplated by this
Agreement shall have been received.
(f) OPINION OF THE SELLERS' COUNSEL. The Sellers shall have furnished
the Purchaser with an opinion, dated the Closing Date, of counsel reasonably
satisfactory to the Purchaser and the Purchaser's counsel, which shall be in
form and substance reasonably satisfactory to the Purchaser.
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<PAGE> 24
(g) RESIGNATIONS. Effective as of the Closing, each of the Sellers
shall have resigned all of his or her positions, and shall have caused all other
persons to have resigned all of their positions, as officers and/or directors of
the Companies.
(h) NO MATERIAL ADVERSE CHANGES. There shall not have occurred any
material adverse change in the business, properties, results of operations or
financial condition of any of the Companies since the Balance Sheet Date.
7.2 CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligations of the
Sellers to sell the Shares on the Closing Date shall be subject to the
satisfaction at or prior to the Closing of each of the following conditions, any
of which may be waived, in writing, exclusively by the Sellers:
(a) TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained in this Agreement shall be true and
correct in all respects on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such date,
and the Sellers shall have received a certificate signed by an authorized
officer of the Purchaser, dated the Closing Date, to such effect.
(b) PERFORMANCE OF AGREEMENTS. All of the agreements of the Purchaser
to be performed prior to the Closing pursuant to the terms of this Agreement
shall have been duly performed, and the Sellers shall have received a
certificate signed by an authorized officer of the Purchaser, dated the Closing
Date, to such effect.
(c) CONSULTING AND NONCOMPETITION AND OTHER AGREEMENTS. Scott and
Johnston shall have entered into the consulting and/or noncompetition agreements
provided for in Section 6.1 of this Agreement. The Sellers shall have caused Ken
Johnston to enter into the agreement provided for in Section 6.1 of this
Agreement.
(d) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Share Purchase shall be in effect, nor shall any proceeding
brought by any Governmental Entity, domestic or foreign, seeking any of the
foregoing be pending; nor shall there be any action taken, or any Law enacted,
entered, enforced or deemed applicable to such transaction which makes the
consummation thereof illegal.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties in this Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Share Purchase and continue for a period of 18
months after the Closing Date, provided, however, that as to the Sellers the
representations and warranties relating or pertaining to Taxes set forth in
Section 3.8 hereof shall survive until ninety (90) days following the expiration
of all applicable statutes of limitations governing the Companies' Taxes or
Returns.
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8.2 AGREEMENT TO INDEMNIFY BY SELLERS. The Sellers, severally and
jointly, hereby agree to indemnify and hold the Purchaser harmless against all
claims, losses, liabilities, damages, deficiencies, costs and expenses,
including reasonable attorneys' fees and expenses of investigation (hereinafter
individually a "Loss" and collectively "Losses") incurred by the Purchaser as a
result of (i) any breach of a representation, warranty or obligation of the
Sellers contained in Article III hereof, (ii) any failure by the Sellers to
perform or comply with any covenant contained herein, or (iii) any failure to
disclose or delivery of incorrect or misleading material information during the
due diligence process; provided, that no such representation or warranty shall
be deemed breached (for purposes of this Article VIII only and not for purposes
of the conditions to the obligations of the Purchaser to purchase the Shares
under Article VII) with respect to information disclosed in the Disclosure
Schedule delivered by the Sellers at the Closing to the extent such schedule
provides exceptions to any representation or warranty.
8.3 AGREEMENT TO INDEMNIFY BY PURCHASER. The Purchaser hereby agrees
to indemnify and hold the Sellers harmless against all claims, losses,
liabilities, damages, deficiencies, costs and expenses, including reasonable
attorneys' fees and expenses of investigation (hereinafter individually a "Loss"
and collectively "Losses") incurred by the Sellers as a result of (i) any breach
of a representation, warranty or obligation of the Purchaser contained in
Article IV hereof, or (ii) any failure by the Purchaser to perform or comply
with any covenant contained herein.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.1 TERMINATION. This Agreement may be terminated and the Share
Purchase abandoned at any time prior to the Closing:
(a) by mutual written consent of the Purchaser and either of the
Sellers;
(b) by the Purchaser if (i) it is not in material breach of its
obligations under this Agreement and there has been a material breach of any
representation, warranty, covenant or agreement contained in this Agreement on
the part of the Sellers and such breach has not been cured within five business
days after written notice to the Sellers or (ii) there shall be any final action
taken, or any statute, rule, regulation or order enacted, promulgated or issued
or deemed applicable to the Share Purchase by any Governmental Entity, which
would prohibit the Purchaser or any of the Companies from owning or operating
all or a material portion of the business of such Company, or compel the
Purchaser or any of the Companies to dispose of or hold separate all or a
material portion of the business or assets of such Company or the Purchaser as a
result of the Share Purchase.
(c) by the Sellers if they are not in material breach of their
obligations under this Agreement and there has been a material breach of any
representation, warranty, covenant or agreement contained in this Agreement on
the part of the Purchaser and such breach has not been cured within five days
after written notice to the Purchaser; or
(d) by any party hereto if: (i) the Closing has not occurred by August
31, 1998; (ii) there shall be a final, non-appealable order of a federal or
state court in effect preventing consummation of the Share Purchase; or (iii)
there shall be any final action taken, or any statute, rule, regulation or order
enacted,
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promulgated or issued or deemed applicable to the Share Purchase by any
Governmental Entity which would make consummation of the Share Purchase illegal.
9.2 EFFECT OF TERMINATION.
(a) In the event of termination of this Agreement as provided in
Section 9.1, this Agreement shall forthwith become void and there shall be no
liability or obligation on the part of the Purchaser or the Sellers, or their
respective officers or agents, except to the extent that such termination
results from the breach by a party hereto of any of its representations,
warranties, covenants or agreements set forth in this Agreement.
9.3 AMENDMENT. This Agreement may be amended by the parties hereto at
any time by execution of an instrument in writing signed by or on behalf of each
of the parties hereto.
9.4 EXTENSION; WAIVER. At any time prior to the Closing, any party
hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto and (iii)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE X
MISCELLANEOUS
10.1 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via telecopy to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to the Purchaser: American Bankers Insurance Group. Inc.
11222 Quail Roost Drive
Miami, FL 33157-6596
Attention: Loren C. Berot, Esq.
Fax: 305-256-7151
with a copy to: Jorden Burt Boros Cicchetti Berenson
& Johnson LLP
777 Brickell Avenue, Suite 500
Miami, FL 33131-2803
Attention: David P. Sofge, Esq.
Fax: 305-372-9928
If to the Sellers: David K. Johnston
Sherry L. Scott
4793 Baywood Point Drive South
Gulfport, FL 33711
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with a copy to: Vorys, Sater, Seymour and Pease
52 East Gay Street
Columbus, OH 43216-1008
Attention: James A.Yano, Esq.
Fax: 614-464-6350
10.2 INTERPRETATION. When a reference is made in this Agreement to
Exhibits, such reference shall be to an Exhibit to this Agreement unless
otherwise indicated. The words "include," "includes" and "including" when used
herein shall be deemed in each case to be followed by the words "without
limitation." The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.3 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
10.4 MISCELLANEOUS. This Agreement and the documents and instruments
and other agreements among the parties hereto including all lists and statements
separately certified in writing by the Sellers or the Purchaser (a) constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof; and (b) are not
intended to confer upon any other person any rights or remedies hereunder,
except as otherwise specifically provided.
10.5 BINDING EFFECT; BENEFIT; ASSIGNMENT. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties.
Notwithstanding anything in this Section 10.6 to the contrary, it is expressly
understood and agreed that the Purchaser may assign this Agreement and its
rights, interests and obligations hereunder to any Affiliate of the Purchaser,
provided, however, that no such assignment shall release the Purchaser from any
of its obligations under this Agreement without the prior written consent of the
Sellers.
10.6 SEVERABILITY. If any term, provision, covenant or restriction
contained in this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions
contained in this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
10.7 GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) This Agreement shall be deemed to be made in and in all respects
shall be interpreted, construed and governed by and in accordance with the Law
of the State of Florida without regard to the conflict of law principles
thereof.
-26-
<PAGE> 28
(B) EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS
WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS
BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 10.7.
(c) Each of the parties hereto agrees that, in connection with any
legal suit or proceeding arising with respect to this agreement, it shall submit
to the jurisdiction of the United States District Court for the Middle District
of Florida (Tampa), it shall accept venue in such Court, and it further agrees
that service of process commencing any suit therein may be made as provided in
Section 10.1 of this Agreement.
IN WITNESS WHEREOF, the Purchaser, by its duly authorized officer, and
the Sellers have executed this Agreement as of the date first written above.
AMERICAN BANKERS INSURANCE
GROUP, INC.
By:
--------------------------------------
Arthur W. Heggen
Executive Vice President and Secretary
--------------------------------------
David K. Johnston
--------------------------------------
Sherry L. Scott
-27-
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