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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
TO
SCHEDULE 13E-3
RULE 13-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934)
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
(NAME OF ISSUER)
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
FIRST COMMAND FINANCIAL CORPORATION
LAMAR C. SMITH
JAMES N. LANIER
HOWARD M. CRUMP
HAL N. CRAIG
DONALDSON D. FRIZZELL
JERRY D. GRAY
DAVID P. THORESON
CARROLL H. PAYNE II
NAOMI K. PAYNE
FREDA J. PAYNE
(NAME OF PERSON(S) FILING STATEMENT)
CLASS B NONVOTING COMMON STOCK, $0.02 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
NOT APPLICABLE
(CUSIP NUMBER OF CLASS OF SECURITIES)
LAMAR C. SMITH
CHAIRMAN OF THE BOARD
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
4100 SOUTH HULEN STREET
FORT WORTH, TEXAS 76109
(817) 731-8621
WITH A COPY TO:
ROBERT F. WATSON BRIAN D. BARNARD
CORPORATE COUNSEL HAYNES AND BOONE, LLP
INDEPENDENT RESEARCH AGENCY 201 Main Street
FOR LIFE INSURANCE, INC. Suite 2200
4100 South Hulen Street Fort Worth, Texas 76102
Fort Worth, Texas 76109 (817) 347-6600
(817) 731-8621
(NAME, ADDRESSES AND TELEPHONE NUMBERS OF PERSONS AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF PERSON(s) FILING STATEMENT)
This statement is filed in connection with (check the appropriate box):
a. /X/ The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. / / The filing of a registration statement under the Securities Act of
1933.
c. / / A tender offer.
d. / / None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: /X/
CALCULATION OF FILING FEE
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TRANSACTION VALUATION AMOUNT OF FILING FEE
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$26,756,929.92 (1) $5,351.38 (1)
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(1) The filing fee is calculated pursuant to Section 13(e)(3) of the Securities
Exchange Act of 1934.
/X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: $5,351.38.
Form or Registration No.: Schedule 14A.
Filing Party: Independent Research Agency for Life Insurance, Inc.
Date Filed: July 6, 1998.
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INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 is being filed
by Independent Research Agency for Life Insurance, Inc., a Texas corporation
(the "Company"), First Command Financial Corporation, a Texas corporation
("First Command"), Lamar C. Smith, James N. Lanier, Howard M. Crump, Hal N.
Craig, Donaldson D. Frizzell, Jerry D. Gray, David P. Thoreson, Carroll H.
Payne II, Naomi K. Payne and Freda J. Payne (such individuals collectively
referred to as the "Management Group") in connection with the proposed merger
(the "Merger") of the Company with and into First Command pursuant to an
Agreement and Plan of Merger, dated as of July 1, 1998, (the "Merger
Agreement"), by and between the Company and First Command.
The Merger Agreement provides for the merger of the Company with and into
First Command, with First Command being the surviving corporation (the
"Surviving Corporation"). Upon the terms and conditions set forth in the Merger
Agreement, upon the Effective Time(as defined in the Proxy Statement), each
share of Class A Voting Common Stock, par value $0.10 per share ("Class A
Stock"), of the Company issued and outstanding immediately prior to the
Effective Time (as defined below) (other than shares of Class A Stock held in
treasury by the Company), subject to and upon the terms and conditions of the
Merger Agreement, will be converted into five shares of Voting Common Stock, par
value $0.01 per share ("Surviving Corporation Voting Stock"), of the Surviving
Corporation (the "Class A Consideration"). Further, (i) each share of Class B
Non-Voting Common Stock, par value $0.02 per share ("Class B Stock"), held by a
holder of Class B Stock (a "Class B Shareholder") that is not a holder of Class
A Stock, issued and outstanding immediately prior to the Effective Time, subject
to and upon the terms and conditions of the Merger Agreement, will be converted
into the right to receive $28.24 in cash, without interest (the "Class B Cash
Consideration"), and (ii) each share of Class B Stock held by a Class B
Shareholder that is also a holder of Class A Stock (a "Class A/B Shareholder"),
issued and outstanding immediately prior to the Effective Time, subject to and
upon the terms and conditions of the Merger Agreement, will be converted into
one share of Nonvoting Common Stock, par value $0.01 per share ("Surviving
Corporation Nonvoting Stock"), of the Surviving Corporation (the "Class B
Nonvoting Stock Consideration," and, together with the Class B Cash
Consideration, the "Class B Consideration"); provided, however that each Class
A/B Shareholder can elect to receive in lieu of receiving the Class B Nonvoting
Stock Consideration the Class B Cash Consideration for all shares of Class B
Stock held thereby immediately prior to the Effective Time. Each holder of
Common Stock, $0.10 par value per share, of First Command ("First Command Common
Stock"), issued and outstanding immediately prior to the Effective Time, subject
to and upon the terms and conditions of the Merger Agreement, will receive one
share of Surviving Corporation Nonvoting Stock for each 25 shares of First
Command Common Stock held by such shareholder.
This Schedule 13E-3 is being filed with the Securities and Exchange
Commission concurrently with the Preliminary Proxy Statement relating to the
solicitation of proxies for the Special Meeting of Shareholders of IRA. A copy
of the Proxy Statement is attached hereto as Exhibit (d). The following
cross reference sheet is being supplied pursuant to General Instruction F to
Schedule 13E-3 and shows the location in the Proxy Statement of the information
required to be included in this Schedule 13E-3. The information contained in
the Proxy Statement, including all the annexes thereto, is expressly
incorporated herein by reference and the responses to each item are qualified in
their entirety by reference to the information contained in the Proxy Statement
and the annexes thereto. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Proxy
Statement.
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ITEM NUMBER AND
CAPTION IN SCHEDULE 13e-3 LOCATION IN THE PROXY STATEMENT
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1. ISSUER AND CLASS OF
SECURITY SUBJECT TO THE
TRANSACTION
(a)........................ "SUMMARY OF PROXY STATEMENT" and "CERTAIN
INFORMATION CONCERNING IRA."
(b)........................ "SUMMARY OF PROXY STATEMENT" and "THE
SPECIAL MEETING--Record Date."
(c)........................ "SUMMARY OF PROXY STATEMENT" and "MARKET
PRICE DATA, DISTRIBUTIONS AND SECURITY
OWNERSHIP OF IRA COMMON STOCK."
2
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(d)........................ "MARKET PRICE DATA, DISTRIBUTIONS AND
SECURITY OWNERSHIP OF IRA COMMON
STOCK--Distribution History" and "SPECIAL
FACTORS--Certain Effects of the Merger;
Plans for the Company after the Merger."
(e)........................ Not Applicable.
(f)........................ "SPECIAL FACTORS--Certain Transactions in
IRA Common Stock."
2. IDENTITY AND BACKGROUND.... "SUMMARY OF PROXY STATEMENT," "CERTAIN
INFORMATION CONCERNING IRA," "CERTAIN
INFORMATION CONCERNING FIRST COMMAND" and
"CERTAIN INFORMATION CONCERNING THE
MANAGEMENT GROUP."
3. PAST CONTACTS, TRANSACTIONS
OR NEGOTIATIONS
(a) and (b)................ "CERTAIN INFORMATION CONCERNING IRA,"
"CERTAIN INFORMATION CONCERNING FIRST
COMMAND," "CERTAIN INFORMATION CONCERNING
THE MANAGEMENT GROUP" "SPECIAL FACTORS--
Background of the Merger," "SPECIAL FACTORS--
Interests of Certain Persons in the Merger" and
"THE PROPOSED MERGER."
4. TERMS OF THE TRANSACTION
(a)........................ "SUMMARY OF PROXY STATEMENT," "SPECIAL
FACTORS" and "THE PROPOSED MERGER."
(b)........................ "SUMMARY OF THE PROXY STATEMENT," "SPECIAL
FACTORS--Background of the Merger" and "THE
PROPOSED MERGER--Conversion of Shares."
5. PLANS OR PROPOSALS OF THE
ISSUER OR AFFILIATE
(a) - (g).................. "CERTAIN INFORMATION CONCERNING
IRA--Directors and Executive Officers of
IRA," "SPECIAL FACTORS--Background of the
Merger," "SPECIAL FACTORS--Purpose and
Structure of the Merger," "SPECIAL
FACTORS--Certain Effects of the Merger;
Plans for the Company after the Merger,"
"MARKET PRICE DATA, DISTRIBUTIONS AND
SECURITY OWNERSHIP OF IRA COMMON STOCK" and
"MARKET PRICE DATA, DISTRIBUTIONS AND
SECURITY OWNERSHIP OF FIRST COMMAND COMMON
STOCK."
6. SOURCE AND AMOUNTS OF FUNDS
OR OTHER CONSIDERATION
(a) - (c).................. "SPECIAL FACTORS--Source and Amount of
Funds" and "THE PROPOSED MERGER--The Merger
Agreement--Expenses."
(d)........................ Not Applicable.
3
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7. PURPOSE(S), ALTERNATIVES,
REASONS AND EFFECTS
(a) - (d).................. "SPECIAL FACTORS--Background of the Merger,"
"SPECIAL FACTORS--Purpose and Structure of
the Merger," "SPECIAL FACTORS--Interests of
Certain Persons in the Merger," "SPECIAL
FACTORS--Recommendation of the IRA
Board and the Special Committee; Fairness of
the Merger," "SPECIAL FACTORS--Position of
the Management Group and First Command as to
the Fairness of the Merger," "SPECIAL
FACTORS--Opinion of the Financial Advisor,"
"SPECIAL FACTORS--Certain Effects of the
Merger; Plans for the Company after the
Merger," "SPECIAL FACTORS--Certain Federal
Income Tax Considerations," "SPECIAL
FACTORS--Accounting Treatment" and "THE
PROPOSED MERGER--Conversion of Shares."
8. FAIRNESS OF THE TRANSACTION
(a) - (e).................. "THE SPECIAL MEETING--Votes Required; Voting
Rights," "SPECIAL FACTORS--Background of the
Merger," "SPECIAL FACTORS--Purpose and
Structure of the Merger," "SPECIAL
FACTORS--Certain Effects of the Merger;
Plans for the Company after the Merger,"
"SPECIAL FACTORS--Recommendation of the IRA
Board and the Special Committee; Fairness
of the Merger," "SPECIAL FACTORS--Position of
the Management Group and First Command as to
the Fairness of the Merger," "SPECIAL
FACTORS--Opinion of the Financial Advisor"
and Annex B to the Proxy Statement.
(f)........................ Not Applicable.
9. REPORTS, OPINIONS,
APPRAISALS AND CERTAIN
NEGOTIATIONS
(a) - (c).................. "SPECIAL FACTORS--Background of the Merger,"
"SPECIAL FACTORS--Recommendation of the IRA
Board and the Special Committee; Fairness
of the Merger," "SPECIAL FACTORS--Position of
the Management Group and First Command as to
the Fairness of the Merger," "SPECIAL
FACTORS--Opinion of the Financial Advisor,"
"SPECIAL FACTORS--Certain Federal Income Tax
Considerations," Annex B to the Proxy
Statement and Annex F to the Proxy
Statement.
10. INTEREST IN SECURITIES OF
THE ISSUER
(a) and (b)................ "MARKET PRICE DATA, DISTRIBUTIONS AND
SECURITY OWNERSHIP OF IRA COMMON STOCK" and
"SPECIAL FACTORS--Certain Transactions in
IRA Common Stock."
11. CONTRACTS, ARRANGEMENTS OR "SUMMARY OF PROXY STATEMENT," "SPECIAL
UNDERSTANDINGS WITH RESPECT FACTORS--Background of the Merger," "SPECIAL
TO THE ISSUER'S SECURITIES FACTORS--Contracts with Respect to Surviving
Corporation Common Stock," "THE PROPOSED
MERGER--Conversion of Shares," "THE PROPOSED
MERGER--The Merger Agreement--Conditions to
the Merger" and "THE SPECIAL MEETING--Votes
Required; Voting Rights."
4
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12. PRESENT INTENTION AND
RECOMMENDATION OF CERTAIN
PERSONS WITH REGARD TO THE
TRANSACTION
(a) and (b)................ "SUMMARY OF PROXY STATEMENT," "SPECIAL
FACTORS--Interests of Certain Persons in the
Merger" and "THE SPECIAL MEETING--Votes
Required; Voting Rights."
13. OTHER PROVISIONS OF THE
TRANSACTION
(a)........................ "SUMMARY OF PROXY STATEMENT," "THE SPECIAL
MEETING--Dissenters' Rights" and "THE
PROPOSED MERGER--Rights of Dissenting
Shareholders."
(b)........................ Not Applicable.
(c)........................ Not Applicable.
14. FINANCIAL INFORMATION
(a)........................ "SELECTED FINANCIAL DATA OF IRA" and Annex
D to the Proxy Statement.
(b)........................ "SUMMARY PRO FORMA DATA"and "PRO FORMA
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
OF IRA."
15. PERSONS AND ASSETS
EMPLOYED, RETAINED OR
UTILIZED
(a) and (b)................ "SPECIAL FACTORS--Interests of Certain
Persons in the Merger," "THE PROPOSED
MERGER--The Merger Agreement--Employee
Benefits," "THE PROPOSED MERGER--The Merger
Agreement--Expenses," "SPECIAL
FACTORS--Opinion of the Financial Advisor"
and "THE SPECIAL MEETING--Solicitation of
Proxies."
16. ADDITIONAL INFORMATION..... Additional information concerning the Merger
is set forth in the Preliminary Proxy
Statement attached hereto as Exhibit (d),
which information is incorporated herein by
reference in its entirety.
17. MATERIAL TO BE FILED AS Separately included herewith.
EXHIBITS ..................
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ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION
(a) The information set forth in "SUMMARY OF PROXY STATEMENT" and
"CERTAIN INFORMATION CONCERNING IRA" in the Proxy Statement is hereby
incorporated herein by reference.
(b) The information set forth in "SUMMARY OF PROXY STATEMENT" and
"THE SPECIAL MEETING--Record Date" in the Proxy Statement is hereby incorporated
herein by reference.
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(c) The information set forth in "SUMMARY OF PROXY STATEMENT" and
"MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP OF IRA COMMON STOCK" in
the Proxy Statement is hereby incorporated herein by reference.
(d) The information set forth in "MARKET PRICE DATA, DISTRIBUTIONS
AND SECURITY OWNERSHIP OF IRA COMMON STOCK--Distribution History" and "SPECIAL
FACTORS--Certain Effects of the Merger; Plans for the Company after the Merger"
in the Proxy Statement is hereby incorporated herein by reference.
(e) Not Applicable.
(f) The information set forth in "SPECIAL FACTORS--Certain
Transactions in IRA Common Stock" in the Proxy Statement is hereby incorporated
herein by reference.
ITEM 2. IDENTITY AND BACKGROUND
(a) - (d) and (g) This Statement is being filed by the Company and
First Command and the Management Group as affiliates of the Company. The
Company is the issuer of the Class B Stock which is the subject of the Rule
13e-3 transaction. The information set forth in "SUMMARY OF PROXY
STATEMENT," "CERTAIN INFORMATION CONCERNING IRA," "CERTAIN INFORMATION
CONCERNING FIRST COMMAND" and "CERTAIN INFORMATION CONCERNING THE MANAGEMENT
GROUP" in the Proxy Statement is hereby incorporated herein by reference.
(e) - (f) During the last five years, none of the Company, First
Command, the executive officers and directors of the Company and First Command
or the Management Group has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) nor has any of the Company, First
Command, the executive officers and directors of the Company and First
Command or the Management Group been party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining further violations of, or prohibiting activities, subject to,
federal or state securities laws or finding any violations of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
(a) and (b) The information set forth in "CERTAIN INFORMATION
CONCERNING IRA," "CERTAIN INFORMATION CONCERNING FIRST COMMAND," "CERTAIN
INFORMATION CONCERNING THE MANAGEMENT GROUP," "SPECIAL FACTORS--Background of
the Merger," "SPECIAL FACTORS--Interests of Certain Persons in the Merger"
and "THE PROPOSED MERGER" in the Proxy Statement is hereby incorporated
herein by reference.
ITEM 4. TERMS OF THE TRANSACTION
(a) The information set forth in "SUMMARY OF PROXY STATEMENT,"
"SPECIAL FACTORS" and "THE PROPOSED MERGER" in the Proxy Statement is hereby
incorporated herein by reference.
(b) The information set forth in "SUMMARY OF PROXY STATEMENT,"
"SPECIAL FACTORS--Background of the Merger" and "THE PROPOSED MERGER--Conversion
of Shares" in the Proxy Statement is hereby incorporated herein by reference.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE
(a) - (g) The information set forth in "CERTAIN INFORMATION CONCERNING
IRA--Directors and Executive Officers of IRA," "SPECIAL FACTORS--Background of
the Merger," "SPECIAL FACTORS--Purpose and Structure of the Merger," "SPECIAL
FACTORS--Certain Effects of the Merger; Plans for the Company after the Merger,"
"MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP OF IRA COMMON STOCK"
and "MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP OF FIRST COMMAND
COMMON STOCK" in the Proxy Statement is hereby incorporated herein by reference.
6
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ITEM 6. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
(a) - (c) The information set forth in "SPECIAL FACTORS--Source and
Amount of Funds" and "THE PROPOSED MERGER--The Merger Agreement--Expenses" in
the Proxy Statement is hereby incorporated herein by reference.
(d) Not applicable.
ITEM 7. PURPOSE(s), ALTERNATIVES, REASONS AND EFFECTS.
(a) - (d) The information set forth in "SPECIAL FACTORS--Background of
the Merger," "SPECIAL FACTORS--Purpose and Structure of the Merger," "SPECIAL
FACTORS--Interests of Certain Persons in the Merger," "SPECIAL
FACTORS--Recommendation of the IRA Board and the Special Committee; Fairness
of the Merger," "SPECIAL FACTORS--Position of the Management Group and First
Command as to the Fairness of the Merger," "SPECIAL FACTORS--Opinion of the
Financial Advisor," "SPECIAL FACTORS--Certain Effects of the Merger; Plans
for the Company after the Merger," "SPECIAL FACTORS--Certain Federal Income
Tax Considerations," "SPECIAL FACTORS--Accounting Treatment" and "THE
PROPOSED MERGER--Conversion of Shares" in the Proxy Statement is hereby
incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a) - (e) The information set forth in "THE SPECIAL MEETING--Votes
Required; Voting Rights," "SPECIAL FACTORS--Background of the Merger,"
"SPECIAL FACTORS--Purpose and Structure of the Merger," "SPECIAL
FACTORS--Certain Effects of the Merger; Plans for the Company after the
Merger," "SPECIAL FACTORS--Recommendation of the IRA Board and the Special
Committee; Fairness of the Merger," "SPECIAL FACTORS--Position of the
Management Group and First Command as to the Fairness of the Merger,"
"SPECIAL FACTORS--Opinion of the Financial Advisor" in the Proxy Statement
and Annex B to the Proxy Statement is hereby incorporated by reference.
(f) Not Applicable.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS.
(a) - (c) The information set forth in "SPECIAL FACTORS--Background of
the Merger," "SPECIAL FACTORS--Recommendation of the IRA Board and the
Special Committee; Fairness of the Merger," "SPECIAL FACTORS--Position of the
Management Group and First Command as to the Fairness of the Merger,"
"SPECIAL FACTORS--Opinion of the Financial Advisor" and "SPECIAL
FACTORS--Certain Federal Income Tax Considerations" in the Proxy Statement
and in Annex B and Annex F to the Proxy Statement is hereby incorporated
herein by reference.
A copy of the Financial Advisor Opinion is attached as Annex B to the
Proxy Statement, and a copy of the Tax Opinion of Ernst & Young LLP is
attached as Annex F to the Proxy Statement.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
(a) and (b) "MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP OF
IRA COMMON STOCK" and "SPECIAL FACTORS--Certain Transactions in IRA Common
Stock" in the Proxy Statement is hereby incorporated herein by reference.
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE
ISSUER'S SECURITIES.
The information set forth in "SUMMARY OF PROXY STATEMENT," "SPECIAL
FACTORS--Background of the Merger," "SPECIAL FACTORS--Contracts with Respect to
Surviving Corporation Common Stock," "THE PROPOSED MERGER--Conversion of
Shares," "THE PROPOSED MERGER--The Merger Agreement--Conditions to the Merger"
and "THE SPECIAL MEETING--Votes Required; Voting Rights" in the Proxy Statement
is hereby incorporated herein by reference.
7
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ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS WITH
REGARD TO THE TRANSACTION.
(a) and (b) The information set forth "SUMMARY OF PROXY STATEMENT,"
"SPECIAL FACTORS--Interests of Certain Persons in the Merger" and "THE SPECIAL
MEETING--Votes Required; Voting Rights" in the Proxy Statement is hereby
incorporated herein by reference.
ITEM 13. OTHER PROVISIONS OF THE TRANSACTION.
(a) The information set forth in "SUMMARY OF PROXY STATEMENT," "THE
SPECIAL MEETING--Dissenters' Rights" and "THE PROPOSED MERGER--Rights of
Dissenting Shareholders" in the Proxy Statement is hereby incorporated by
reference.
(b) Not Applicable.
(c) Not Applicable.
ITEM 14. FINANCIAL INFORMATION.
(a) The information set forth in "SELECTED FINANCIAL DATA OF IRA"
in the Proxy Statement and in Annex D to the Proxy Statement is hereby
incorporated herein by reference.
(b) The information set forth in "SUMMARY PRO FORMA DATA" and "PRO
FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS OF IRA" in the Proxy Statement
is hereby incorporated herein by reference.
ITEM 15. PERSONS AND ASSETS EMPLOYED, RETAINED OR UTILIZED.
(a) and (b) The information set forth in "SPECIAL FACTORS--Interests of
Certain Persons in the Merger," "THE PROPOSED MERGER--The Merger
Agreement--Employee Benefits," "THE PROPOSED MERGER--The Merger
Agreement--Expenses," "SPECIAL FACTORS--Opinion of the Financial Advisor" and
"THE SPECIAL MEETING--Solicitation of Proxies" in the Proxy Statement is hereby
incorporated herein by reference.
ITEM 16. ADDITIONAL INFORMATION.
Additional information concerning the Merger is set forth in the
Preliminary Proxy Statement attached hereto as Exhibit (d), which information is
incorporated herein by reference in its entirety.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Commitment Letter of Norwest Bank Texas N.A. filed as Exhibit
99(a) to the Schedule 13E-3 filed on July 6, 1998, and incorporated by
reference herein.
(a)(2) Loan Agreement, dated September 30, 1998, between Norwest
Bank Texas, N.A. and Independent Research Agency for Life Insurance, Inc.
(a)(3) Promissory Note, effective September 30, 1998, by Independent
Research Agency for Life Insurance, Inc.
(a)(4) Pledge Agreement, dated September 30, 1998, between
Independent Research Agency for Life Insurance, Inc. and Norwest Bank Texas,
N.A.
(a)(5) Pledge Agreement, dated September 30, 1998, between United
Services Planning Association and Norwest Bank Texas, N.A.
(b)(1) Opinion of PricewaterhouseCoopers LLP (the "IRA Financial
Advisor"), financial advisor to the Special Committee of the Board of Directors
of IRA included as Annex B in the Proxy Statement is hereby incorporated by
reference.
(b)(2) Discussion materials prepared by the IRA Financial Advisor for
the Board of Directors of IRA filed as Exhibit 99(b)(2) to the Schedule 13E-3
filed on July 6, 1998, and incorporated by reference herein.
(b)(3) Tax Opinion of Ernst & Young LLP included as Annex F to the
Proxy Statement is hereby incorporated by reference.
(b)(4) Report prepared by Ernst & Young LLP for the Company filed
as Exhibit 99(b)(4) to Amendment No. 1 to the Schedule 13E-3 filed on August
26, 1998, and incorporated by reference herein.
(b)(5) Special Committee Package prepared by the IRA Financial
Advisor for the Special Committee filed as Exhibit 99(b)(5) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and incorporated by
reference herein.
(b)(6) Mission Accomplishment Plan Summary; Form of Mission
Accomplishment Plan Agreement for a Select Group of Agents; Form of Mission
Accomplishment Plan Agreement for a Select Group of Management; Form of
Mission Accomplishment Plan for a Select Group of Highly Compensated
Employees; USPA&IRA Mission Accomplishment Plans Board Grant Declaration and
Administrative Policies; Mission Accomplishment Plan for a Select Group of
Management; USPA&IRA Mission Accomplishment Plans Board Grant Declaration and
Administrative Policies; Mission Accomplishment Plan for Agents; Mission
Accomplishment Plan for a Select Group of Key Employees; and Mission
Accomplishment Plan for a Select Group of Highly Compensated Employees,
provided by the Company to the Financial Advisor filed as Exhibit 99(b)(6) to
Amendment No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
(b)(7) List of Class A Shareholders and Class B Shareholders, as of
March 31, 1998, provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(7) to Amendment No. 2 to the Schedule 13E-3 filed on September
8, 1998, and incorporated by reference herein.
(b)(8) Charts of Proposed Plan of Merger, the Current Structure and
Structure after the Merger, provided by the Company to the Financial Advisor
filed as Exhibit 99(b)(8) to Amendment No. 2 to the Schedule 13E-3 filed on
September 8, 1998, and incorporated by reference herein.
(b)(9) List of Regional Agents and District Agents, as of August 1,
1998, provided by the Company to the Financial Advisor filed as Exhibit
99(b)(9) to Amendment No. 2 to the Schedule 13E-3 filed on September 8, 1998,
and incorporated by reference herein.
(b)(10) Home Office Organization Charts, as of March 5, 1998, provided
by the Company to the Financial Advisor filed as Exhibit 99(b)(10) to
Amendment No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
(b)(11) Treasury Transactions from September 30, 1998, through July
31, 1998, provided by the Company to the Financial Advisor filed as Exhibit
99(b)(11) to Amendment No. 2 to the Schedule 13E-3 filed on September 8,
1998, and incorporated by reference herein.
(b)(12) Plaintiff's Amended Motion for Summary Judgment, INDEPENDENT
RESEARCH AGENCY FOR LIFE INSURANCE, INC. V. HUGENBERG, filed May 3, 1991,
provided by the Company to the Financial Advisor filed as Exhibit 99(b)(12)
to Amendment No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
(b)(13) Brief in Support of Amended Motion for Summary Judgment,
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC. V. HUGENBERG, filed May
3, 1991, provided by the Company to the Financial Advisor filed as Exhibit
99(b)(13) to Amendment No. 2 to the Schedule 13E-3 filed on September 8,
1998, and incorporated by reference herein.
(b)(14) Affidavit of Sam F. Rhodes, INDEPENDENT RESEARCH AGENCY FOR
LIFE INSURANCE, INC. V. HUGENBERG, dated February 18, 1991, provided by the
Company to the Financial Advisor filed as Exhibit 99(b)(14) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and incorporated by
reference herein.
(b)(15) Corrected Brief for Appellee, INDEPENDENT RESEARCH AGENCY FOR
LIFE INSURANCE, INC. V. HUGENBERG, filed October 9, 1991, provided by the
Company to the Financial Advisor filed as Exhibit 99(b)(15) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and incorporated by
reference herein.
(b)(16) Form of Registered Representative/Agent Agreement, provided by
the Company to the Financial Advisor filed as Exhibit 99(b)(16) to Amendment
No. 2 to the Schedule 13E-3 filed on September 8, 1998, and incorporated by
reference herein.
(b)(17) General Agent Agreement, between All American Life and
Casualty Company and Independent Research Agency for Life Insurance, dated
January 1, 1979, provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(17) to Amendment No. 2 to the Schedule 13E-3 filed on September
8, 1998, and incorporated by reference herein.
(b)(18) General Agency Contract, between Liberty National Life
Insurance Company and Independent Research Agency for Life Insurance, Inc.,
effective October 1, 1981, provided by the Company to the Financial Advisor
filed as Exhibit 99(b)(18) to Amendment No. 2 to the Schedule 13E-3 filed on
September 8, 1998, and incorporated by reference herein.
(b)(19) General Agency Contract, between Global Life Insurance Company
and Independent Research Agency for Life Insurance, Inc., dated February 7,
1997, provided by the Company to the Financial Advisor filed as Exhibit
99(b)(19) to Amendment No. 2 to the Schedule 13E-3 filed on September 8,
1998, and incorporated by reference herein.
(b)(20) Managing General Agent's Contract, between Monumental Life
Insurance Company and Independent Research Agency for Life Insurance, dated
April 11, 1979, provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(20) to Amendment No. 2 to the Schedule 13E-3 filed on September
8, 1998, and incorporated by reference herein.
(b)(21) General Agent's Agreement, between North American Company for
Life and Health Insurance and Independent Research Agency, dated January 1,
1971, provided by the Company to the Financial Advisor filed as Exhibit
99(b)(21) to Amendment No. 2 to the Schedule 13E-3 filed on September 8,
1998, and incorporated by reference herein.
(b)(22) General Agent's Agreement, between The Old Line Life Insurance
Company of America and Carroll H. Payne, dated July 31, 1972, provided by the
Company to the Financial Advisor filed as Exhibit 99(b)(22) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and incorporated by
reference herein.
(b)(23) Prospective Operating Information, Summary of Cash Flow
Analysis and Balance Sheet Data from 1998 through 2009, and Summary of
Shareholder Cash Flows, provided by the Company to the Financial Advisor
filed as Exhibit 99(b)(23) to Amendment No. 2 to the Schedule 13E-3 filed on
September 8, 1998, and incorporated by reference herein.
(b)(24) Dealer Agreement concerning Fidelity Systematic Investment
Plans: Destiny Plans I and Destiny Plans II, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(24) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated by reference
herein.
(b)(25) Dealer's Agreement, between A I M Distributors, Inc. and
United Services Planning Association, Inc., dated October 15, 1982, provided
by the Company to the Financial Advisor filed as Exhibit 99(b)(25) to
Amendment No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
(b)(26) Dealer's Sales Agreement, between The Pioneer Group, Inc. and
United Services Planning Association, Inc., dated August 1, 1979, provided by
the Company to the Financial Advisor filed as Exhibit 99(b)(26) to Amendment
No. 2 to the Schedule 13E-3 filed on September 8, 1998, and incorporated by
reference herein.
(b)(27) List of Directors and Officers of Independent Research Agency
for Life Insurance, Inc., as of May 8, 1998, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(27) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated by reference
herein.
(b)(28) Biographical Information of Members of the Board of
Independent Research Agency for Life Insurance, Inc., provided by the Company
to the Financial Advisor filed as Exhibit 99(b)(28) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated by reference
herein.
(b)(29) USPA&IRA Mission Statement, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(29) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated by reference
herein.
(b)(30) History of USPA&IRA, provided by the Company to the Financial
Advisor filed as Exhibit 99(b)(30) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference herein.
(b)(31) Top Agent Producers in 1997 and 1996, provided by the Company
to the Financial Advisor filed as Exhibit 99(b)(31) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated by reference
herein.
(b)(32) List of Property of Independent Research Agency for Life
Insurance, Inc., provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(32) to Amendment No. 2 to the Schedule 13E-3 filed on September
8, 1998, and incorporated by reference herein.
(b)(33) Independent Research Agency for Life Insurance, Inc. Schedule
of Discretionary or Nonrecurring Items Included in the State of Operations,
for the Five Years Ended September 30, 1997, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(33) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated by reference
herein.
(b)(34) Form of Class B Stock Agreement, provided by the Company to
the Financial Advisor filed as Exhibit 99(b)(34) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated by reference
herein.
(b)(35) Payne Family Stock Agreement, between Independent Research
Agency for Life Insurance, Inc., Carroll H. Payne, Freda J. Payne, Debra S.
Payne, Carroll H. Payne II and Naomi K. Payne, dated March 22, 1983, provided
by the Company to the Financial Advisor filed as Exhibit 99(b)(35) to
Amendment No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
(b)(36) Class A Stock Agreement, between Independent Research Agency
for Life Insurance, Inc. and Margaret L. Galda, dated December 5, 1997,
provided by the Company to the Financial Advisor filed as Exhibit 99(b)(36)
to Amendment No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
(b)(37) Articles of Incorporation of Independent Research Agency for
Life Insurance, Inc., as amended, provided by the Company to the Financial
Advisor filed as Exhibit 99(b)(37) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference herein.
(b)(38) Bylaws of Independent Research Agency for Life Insurance,
Inc., as amended December 5, 1996, provided by the Company to the Financial
Advisor filed as Exhibit 99(b)(38) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference herein.
(b)(39) Internal Financial Information of USPA&IRA, from 1992 through
1997, provided by the Company to the Financial Advisor filed as Exhibit
99(b)(39) to Amendment No. 2 to the Schedule 13E-3 filed on September 8,
1998, and incorporated by reference herein.
(b)(40) Independent Research Agency for Life Insurance, Inc. Class B
Stock Appreciation Schedule, from Fiscal Year 1990 Through Fiscal Year 1997,
provided by the Company to the Financial Advisor filed as Exhibit 99(b)(40)
to Amendment No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
(b)(41) Market and Industry Data, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(41) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated by reference
herein.
(c)(1) Agreement and Plan of Merger, dated as of July 1, 1998, between
Independent Research Agency for Life Insurance, Inc. and First Command Financial
Corporation, included as Annex A in the Proxy Statement is hereby incorporated
by reference.
8
<PAGE>
(c)(2) Form of Shareholders' Agreement to be entered into among
Surviving Corporation Shareholders and Surviving Corporation filed as Exhibit
99(c)(2) to the Schedule 13E-3 filed on July 6, 1998, and incorporated by
reference herein.
(c)(3) Form of Articles of Incorporation of the Surviving Corporation,
as proposed to be amended, included as Annex E to the Proxy Statement is hereby
incorporated by reference.
(c)(4) Form of Bylaws of the Surviving Corporation, as proposed to be
amended, included as Annex E to the Proxy Statement is hereby incorporated by
reference.
(d) Preliminary copy of Letter to Shareholders, Notice of Special
Meeting of Shareholders, Proxy Statement, Form of Proxy and Form of Election,
dated ___________, 1998, for the Special Meeting of Shareholders to be held
on ____________, 1998.
(e) Articles 5.11 through 5.13 from the Texas Business Corporation
Act Relating to Rights of Dissenting Shareholders included as Annex C in the
Proxy Statement is hereby incorporated by reference.
(f) None.
99.1 Ground Lease, dated June 1, 1998, by and between Independent
Research Agency for Life Insurance, Inc. and First Command Financial
Corporation filed as Exhibit 99.1 to Amendment No. 1 to the Schedule 13E-3
filed on August 26, 1998, and incorporated by reference herein.
99.2 Memorandum of Ground Lease, dated June 1, 1998, by and
between Independent Research Agency for Life Insurance, Inc. and First
Command Financial Corporation filed as Exhibit 99.2 to Amendment No. 1 to the
Schedule 13E-3 filed on August 26, 1998, and incorporated by reference herein.
99.3 Lease Agreement, dated June 1, 1998, by and between
Independent Research Agency for Life Insurance, Inc. and First Command
Financial Corporation filed as Exhibit 99.3 to Amendment No. 1 to the Schedule
13E-3 filed on August 26, 1998, and incorporated by reference herein.
99.4 Management Agreement, dated June 1, 1998 by and between
Independent Research Agency for Life Insurance, Inc. and First Command
Financial Corporation filed as Exhibit 99.4 to Amendment No. 1 to the Schedule
13E-3 filed on August 26, 1998, and incorporated by reference herein.
99.5 Administration Agreement, dated June 1, 1998 by and between
Independent Research Agency for Life Insurance, Inc. and First Command
Financial Corporation filed as Exhibit 99.5 to Amendment No. 1 to the Schedule
13E-3 filed on August 26, 1998, and incorporated by reference herein.
99.6 Line of Credit Agreement, dated June 1, 1998, by and between
First Command Financial Corporation and Independent Research Agency for Life
Insurance, Inc. filed as Exhibit 99.6 to Amendment No. 1 to the Schedule 13E-3
filed on August 26, 1998, and incorporated by reference herein.
99.7 Promissory Note, dated June 1, 1998, by and between First
Command Financial Corporation and Independent Research Agency for Life
Insurance, Inc. filed as Exhibit 99.7 to Amendment No. 1 to the Schedule 13E-3
filed on August 26, 1998, and incorporated by reference herein.
99.8 Deed of Trust, Security Agreement and Assignment of Rents and
Leases, dated June 1, 1998, by and between First Command Financial
Corporation and Independent Research Agency for Life Insurance, Inc. filed as
Exhibit 99.8 to Amendment No. 1 to the Schedule 13E-3 filed on August 26,
1998, and incorporated by reference herein.
99.9 Uniform Commercial Code - Financing Statement, by and between
First Command Financial Corporation and Independent Research Agency for Life
Insurance, Inc. filed as Exhibit 99.9 to Amendment No. 1 to the Schedule 13E-3
filed on August 26, 1998, and incorporated by reference herein.
9
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: October ___, 1998 INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE,
INC.
By: /s/ Lamar C. Smith
--------------------------------------------
Name: Lamar C. Smith
--------------------------------------------
Title: Chairman of the Board/C.E.O.
--------------------------------------------
FIRST COMMAND FINANCIAL CORPORATION
By: /s/ James N. Lanier
--------------------------------------------
Name: James N. Lanier
--------------------------------------------
Title: President
--------------------------------------------
/s/ Lamar C. Smith
--------------------------------------------
Lamar C. Smith
/s/ James N. Lanier
--------------------------------------------
James N. Lanier
/s/ Howard M. Crump
--------------------------------------------
Howard M. Crump
/s/ Hal N. Craig
--------------------------------------------
Hal N. Craig
/s/ Donaldson D. Frizzell
--------------------------------------------
Donaldson D. Frizzell
/s/ Jerry D. Gray
--------------------------------------------
Jerry D. Gray
/s/ David P. Thoreson
--------------------------------------------
David P. Thoreson
/s/ Carroll H. Payne II
--------------------------------------------
Carroll H. Payne II
/s/ Naomi K. Payne
--------------------------------------------
Naomi K. Payne
/s/ Freda J. Payne
--------------------------------------------
Freda J. Payne
10
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT NAME
- ------- ------------
99(a)(1) Commitment Letter of Norwest Bank Texas N.A. filed as Exhibit
99(a) to the Schedule 13E-3 filed on July 6, 1998, and
incorporated by reference herein.
99(a)(2) Loan Agreement, dated September 30, 1998, between Norwest
Bank Texas, N.A. and Independent Research Agency for Life
Insurance, Inc.
99(a)(3) Promissory Note, effective September 30, 1998, by Independent
Research Agency for Life Insurance, Inc.
99(a)(4) Pledge Agreement, dated September 30, 1998, between
Independent Research Agency for Life Insurance, Inc. and
Norwest Bank Texas, N.A.
99(a)(5) Pledge Agreement, dated September 30, 1998, between United
Services Planning Association and Norwest Bank Texas, N.A.
99(b)(1) Opinion of the IRA Financial Advisor, included as Annex B in
the Proxy Statement is hereby incorporated by reference.
99(b)(2) Discussion materials prepared by the IRA Financial Advisor for
the Board of Directors of IRA filed as Exhibit 99(b)(2) to
the Schedule 13E-3 filed on July 6, 1998 and incorporated
by reference herein.
99(b)(3) Tax Opinion of Ernst & Young LLP included as Annex F to the
Proxy Statement is hereby incorporated by reference.
99(b)(4) Report prepared by Ernst & Young LLP for the Company filed as
Exhibit 99(b)(4) to Amendment No. 1 to the Schedule 13E-3 filed
on August 26, 1998, and incorporated by reference herein.
99(b)(5) Special Committee Package prepared by the IRA Financial
Advisor for the Special Committee filed as Exhibit 99(b)(5)
to Amendment No. 2 to the Schedule 13E-3 filed on September
8, 1998, and incorporated by reference herein.
99(b)(6) Mission Accomplishment Plan Summary; Form of Mission
Accomplishment Plan Agreement for a Select Group of Agents;
Form of Mission Accomplishment Plan Agreement for a Select
Group of Management; Form of Mission Accomplishment Plan for
a Select Group of Highly Compensated Employees; USPA&IRA
Mission Accomplishment Plans Board Grant Declaration and
Administrative Policies; Mission Accomplishment Plan for a
Select Group of Management; USPA&IRA Mission Accomplishment
Plans Board Grant Declaration and Administrative Policies;
Mission Accomplishment Plan for Agents; Mission
Accomplishment Plan for a Select Group of Key Employees; and
Mission Accomplishment Plan for a Select Group of Highly
Compensated Employees, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(6) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(7) List of Class A Shareholders and Class B Shareholders, as of
March 31, 1998, provided by the Company to the Financial
Advisor filed as Exhibit 99(b)(7) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated
by reference herein.
99(b)(8) Charts of Proposed Plan of Merger, the Current Structure and
Structure after the Merger, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(8) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(9) List of Regional Agents and District Agents, as of August 1,
1998, provided by the Company to the Financial Advisor filed
as Exhibit 99(b)(9) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(10) Home Office Organization Charts, as of March 5, 1998, provided
by the Company to the Financial Advisor filed as Exhibit
99(b)(10) to Amendment No. 2 to the Schedule 13E-3 filed on
September 8, 1998, and incorporated by reference herein.
99(b)(11) Treasury Transactions from September 30, 1998, through July
31, 1998, provided by the Company to the Financial Advisor
filed as Exhibit 99(b)(11) to Amendment No. 2 to the Schedule
13E-3 filed on September 8, 1998, and incorporated by
reference herein.
99(b)(12) Plaintiff's Amended Motion for Summary Judgment, INDEPENDENT
RESEARCH AGENCY FOR LIFE INSURANCE, INC. V. HUGENBERG, filed
May 3, 1991, provided by the Company to the Financial Advisor
filed as Exhibit 99(b)(12) to Amendment No. 2 to the Schedule
13E-3 filed on September 8, 1998, and incorporated by
reference herein.
99(b)(13) Brief in Support of Amended Motion for Summary Judgment,
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC. V.
HUGENBERG, filed May 3, 1991, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(13) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(14) Affidavit of Sam F. Rhodes, INDEPENDENT RESEARCH AGENCY FOR
LIFE INSURANCE, INC. V. HUGENBERG, dated February 18, 1991,
provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(14) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(15) Corrected Brief for Appellee, INDEPENDENT RESEARCH AGENCY FOR
LIFE INSURANCE, INC. V. HUGENBERG, filed October 9, 1991,
provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(15) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(16) Form of Registered Representative/Agent Agreement, provided
by the Company to the Financial Advisor filed as Exhibit
99(b)(16) to Amendment No. 2 to the Schedule 13E-3 filed on
September 8, 1998, and incorporated by reference herein.
99(b)(17) General Agent Agreement, between All American Life and
Casualty Company and Independent Research Agency for Life
Insurance, dated January 1, 1979, provided by the Company to
the Financial Advisor filed as Exhibit 99(b)(17) to Amendment
No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(18) General Agency Contract, between Liberty National Life
Insurance Company and Independent Research Agency for Life
Insurance, Inc., effective October 1, 1981, provided by the
Company to the Financial Advisor filed as Exhibit 99(b)(18)
to Amendment No. 2 to the Schedule 13E-3 filed on September
8, 1998, and incorporated by reference herein.
99(b)(19) General Agency Contract, between Global Life Insurance Company
and Independent Research Agency for Life Insurance, Inc.,
dated February 7, 1997, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(19) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(20) Managing General Agent's Contract, between Monumental Life
Insurance Company and Independent Research Agency for Life
Insurance, dated April 11, 1979, provided by the Company to
the Financial Advisor filed as Exhibit 99(b)(20) to Amendment
No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(21) General Agent's Agreement, between North American Company for
Life and Health Insurance and Independent Research Agency,
dated January 1, 1971, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(21) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(22) General Agent's Agreement, between The Old Line Life Insurance
Company of America and Carroll H. Payne, dated July 31, 1972,
provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(22) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(23) Prospective Operating Information, Summary of Cash Flow
Analysis and Balance Sheet Data from 1998 through 2009, and
Summary of Shareholder Cash Flows, provided by the Company to
the Financial Advisor filed as Exhibit 99(b)(23) to Amendment
No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(24) Dealer Agreement concerning Fidelity Systematic Investment
Plans: Destiny Plans I and Destiny Plans II, provided by the
Company to the Financial Advisor filed as Exhibit 99(b)(24)
to Amendment No. 2 to the Schedule 13E-3 filed on September
8, 1998, and incorporated by reference herein.
99(b)(25) Dealer's Agreement, between A I M Distributors, Inc. and
United Services Planning Association, Inc., dated October 15,
1982, provided by the Company to the Financial Advisor filed
as Exhibit 99(b)(25) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(26) Dealer's Sales Agreement, between The Pioneer Group, Inc. and
United Services Planning Association, Inc., dated August 1,
1979, provided by the Company to the Financial Advisor filed
as Exhibit 99(b)(26) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(27) List of Directors and Officers of Independent Research Agency
for Life Insurance, Inc., as of May 8, 1998, provided by the
Company to the Financial Advisor filed as Exhibit 99(b)(27)
to Amendment No. 2 to the Schedule 13E-3 filed on September
8, 1998, and incorporated by reference herein.
99(b)(28) Biographical Information of Members of the Board of
Independent Research Agency for Life Insurance, Inc.,
provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(28) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(29) USPA&IRA Mission Statement, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(29) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(30) History of USPA&IRA, provided by the Company to the Financial
Advisor filed as Exhibit 99(b)(30) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated
by reference herein.
99(b)(31) Top Agent Producers in 1997 and 1996, provided by the Company
to the Financial Advisor filed as Exhibit 99(b)(31) to
Amendment No. 2 to the Schedule 13E-3 filed on September 8,
1998, and incorporated by reference herein.
99(b)(32) List of Property of Independent Research Agency for Life
Insurance, Inc., provided by the Company to the Financial
Advisor filed as Exhibit 99(b)(32) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated
by reference herein.
99(b)(33) Independent Research Agency for Life Insurance, Inc. Schedule
of Discretionary or Nonrecurring Items Included in the State
of Operations, for the Five Years Ended September 30, 1997,
provided by the Company to the Financial Advisor filed as
Exhibit 99(b)(33) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(34) Form of Class B Stock Agreement, provided by the Company to
the Financial Advisor filed as Exhibit 99(b)(34) to Amendment
No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(35) Payne Family Stock Agreement, between Independent Research
Agency for Life Insurance, Inc., Carroll H. Payne, Freda J.
Payne, Debra S. Payne, Carroll H. Payne II and Naomi K.
Payne, dated March 22, 1983, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(35) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(36) Class A Stock Agreement, between Independent Research Agency
for Life Insurance, Inc. and Margaret L. Galda, dated
December 5, 1997, provided by the Company to the Financial
Advisor filed as Exhibit 99(b)(36) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated
by reference herein.
99(b)(37) Articles of Incorporation of Independent Research Agency for
Life Insurance, Inc., as amended, provided by the Company to
the Financial Advisor filed as Exhibit 99(b)(37) to Amendment
No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(38) Bylaws of Independent Research Agency for Life Insurance,
Inc., as amended December 5, 1996, provided by the Company to
the Financial Advisor filed as Exhibit 99(b)(38) to Amendment
No. 2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(b)(39) Internal Financial Information of USPA&IRA, from 1992 through
1997, provided by the Company to the Financial Advisor filed
as Exhibit 99(b)(39) to Amendment No. 2 to the Schedule 13E-3
filed on September 8, 1998, and incorporated by reference
herein.
99(b)(40) Independent Research Agency for Life Insurance, Inc. Class B
Stock Appreciation Schedule, from Fiscal Year 1990 Through
Fiscal Year 1997, provided by the Company to the Financial
Advisor filed as Exhibit 99(b)(40) to Amendment No. 2 to the
Schedule 13E-3 filed on September 8, 1998, and incorporated
by reference herein.
99(b)(41) Market and Industry Data, provided by the Company to the
Financial Advisor filed as Exhibit 99(b)(41) to Amendment No.
2 to the Schedule 13E-3 filed on September 8, 1998, and
incorporated by reference herein.
99(c)(1) Agreement and Plan of Merger, dated as of July 1, 1998, between
Independent Research Agency for Life Insurance, Inc. and First
Command Financial Corporation, included as Annex A in the Proxy
Statement is hereby incorporated by reference.
99(c)(2) Form of Shareholders' Agreement to be entered into among
Surviving Corporation Shareholders and Surviving Corporation
filed as Exhibit 99(c)(2) to the Schedule 13E-3 filed on July 6,
1998, and incorporated by reference herein.
99(c)(3) Form of Articles of Incorporation of the Surviving Corporation,
as proposed to be amended, included as Annex E to the Proxy
Statement is hereby incorporated by reference.
99(c)(4) Form of Bylaws of the Surviving Corporation, as proposed to be
amended, included as Annex E to the Proxy Statement is hereby
incorporated by reference.
99(d) Preliminary copy of Letter to Shareholders, Notice of Special
Meeting of Shareholders, Proxy Statement, Form of Proxy and
Form of Election, dated ___________, 1998, for the Special
Meeting of Shareholders to be held on ____________, 1998 is
hereby incorporated by reference.
99(e) Articles 5.11 through 5.13 from the Texas Business Corporation
Act Relating to Rights of Dissenting Shareholders included as
Annex C in the Proxy Statement is hereby incorporated by
reference.
99(f) None.
99.1 Ground Lease, dated June 1, 1998, by and between Independent
Research Agency for Life Insurance, Inc. and First Command
Financial Corporation filed as Exhibit 99.1 to Amendment No.
1 to the Schedule 13E-3 filed on August 26, 1998, and
incorporated by reference herein.
99.2 Memorandum of Ground Lease, dated June 1, 1998, by and
between Independent Research Agency for Life Insurance, Inc.
and First Command Financial Corporation filed as Exhibit 99.2
to Amendment No. 1 to the Schedule 13E-3 filed on August 26,
1998, and incorporated by reference herein.
99.3 Lease Agreement, dated June 1, 1998, by and between
Independent Research Agency for Life Insurance, Inc. and
First Command Financial Corporation filed as Exhibit 99.3 to
Amendment No. 1 to the Schedule 13E-3 filed on August 26, 1998,
and incorporated by reference herein.
99.4 Management Agreement, dated June 1, 1998, by and between
Independent Research Agency for Life Insurance, Inc. and
First Command Financial Corporation filed as Exhibit 99.4 to
Amendment No. 1 to the Schedule 13E-3 filed on August 26,
1998, and incorporated by reference herein.
99.5 Administration Agreement, dated June 1, 1998, by and between
Independent Research Agency for Life Insurance, Inc. and
First Command Financial Corporation filed as Exhibit 99.5 to
Amendment No. 1 to the Schedule 13E-3 filed on August 26,
1998, and incorporated by reference herein.
99.6 Line of Credit Agreement, dated June 1, 1998, by and between
First Command Financial Corporation and Independent Research
Agency for Life Insurance, Inc. filed as Exhibit 99.6 to
Amendment No. 1 to the Schedule 13E-3 filed on August 26,
1998, and incorporated by reference herein.
99.7 Promissory Note, dated June 1, 1998, by and between First
Command Financial Corporation and Independent Research Agency
for Life Insurance, Inc. filed as Exhibit 99.7 to Amendment No.
1 to the Schedule 13E-3 filed on August 26, 1998, and
incorporated by reference herein.
99.8 Deed of Trust, Security Agreement and Assignment of Rents and
Leases, dated June 1, 1998, by and between First Command
Financial Corporation and Independent Research Agency for
Life Insurance, Inc. filed as Exhibit 99.8 to Amendment No.
1 to the Schedule 13E-3 filed on August 26, 1998, and
incorporated by reference herein
99.9 Uniform Commercial Code - Financing Statement, by and between
First Command Financial Corporation and Independent Research
Agency for Life Insurance, Inc. filed as Exhibit 99.9 to
Amendment No. 1 to the Schedule 13E-3 filed on August 26, 1998,
and incorporated by reference herein.
<PAGE>
LOAN AGREEMENT
between
NORWEST BANK TEXAS, N.A.
("Bank")
and
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
("Borrower")
$16,000,000.00 TERM LOAN
September 30, 1998
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE ONE
DEFINITION OF TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Accounting Terms. . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE TWO
COMMITMENT TO LEND, TERMS OF PAYMENT . . . . . . . . . . . . . . . . . . . . . 4
Section 2.1. Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.2. Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3. Payments. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.4. Interest Rate . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5. Order of Application. . . . . . . . . . . . . . . . . . . . 5
ARTICLE THREE
COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.1. Security Interests. . . . . . . . . . . . . . . . . . . . . 5
ARTICLE FOUR
CONDITIONS PRECEDENT TO LENDING. . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4.1. Delivery of Items . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.1. Corporate Existence . . . . . . . . . . . . . . . . . . . . 6
Section 5.2. Authorization . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.3. Collateral. . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.4. Compliance with Laws and Documents. . . . . . . . . . . . . 6
Section 5.5. Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.6. Litigation. . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.7. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.8. Financial Statements. . . . . . . . . . . . . . . . . . . . 7
Section 5.9. Margin Stock. . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE SIX
CERTAIN AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 6.1. Material Adverse Effect . . . . . . . . . . . . . . . . . . 7
Section 6.2. Expenses of Bank. . . . . . . . . . . . . . . . . . . . . . 7
Section 6.3. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 6.4. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 6.8. Annual Financial Statements . . . . . . . . . . . . . . . . 8
Section 6.9. Stock Value Certificate . . . . . . . . . . . . . . . . . . 8
Section 6.10. Compliance with Applicable Laws. . . . . . . . . . . . . . 8
Section 6.11. Notice of Event of Default and Suits . . . . . . . . . . . 8
Section 6.12. Year 2000. . . . . . . . . . . . . . . . . . . . . . . . . 8
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ARTICLE SEVEN
CERTAIN NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7.1. Merger or Sale of Assets. . . . . . . . . . . . . . . . . . 9
Section 7.2. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7.3. Continuation of Business. . . . . . . . . . . . . . . . . . 9
Section 7.4. Stock Value; Required Percentage. . . . . . . . . . . . . . 9
ARTICLE EIGHT
DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8.1. Payment of Obligation . . . . . . . . . . . . . . . . . . . 9
Section 8.2. Certain Negative Covenants. . . . . . . . . . . . . . . . .10
Section 8.3. Other Covenants . . . . . . . . . . . . . . . . . . . . . .10
Section 8.4. Voluntary Debtor Relief . . . . . . . . . . . . . . . . . .10
Section 8.5. Involuntary Proceedings . . . . . . . . . . . . . . . . . .10
Section 8.6. Other Obligations . . . . . . . . . . . . . . . . . . . . .10
Section 8.7. Dissolution of Borrower . . . . . . . . . . . . . . . . . .10
Section 8.8. Misrepresentation . . . . . . . . . . . . . . . . . . . . .10
ARTICLE NINE
CERTAIN RIGHTS OF BANK . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 9.1. Rights Upon Default . . . . . . . . . . . . . . . . . . . .11
Section 9.2. Performance by Bank . . . . . . . . . . . . . . . . . . . .11
Section 9.3. Diminution in Collateral Value. . . . . . . . . . . . . . .11
Section 9.4. Bank Not in Control . . . . . . . . . . . . . . . . . . . .11
Section 9.5. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 9.6. Cumulative Rights . . . . . . . . . . . . . . . . . . . . .12
Section 9.7. Indemnification of Bank . . . . . . . . . . . . . . . . . .12
Section 9.8. Application of Proceeds . . . . . . . . . . . . . . . . . .12
Section 9.9. Expenditures by Bank. . . . . . . . . . . . . . . . . . . .12
ARTICLE TEN
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Section 10.1. Headings . . . . . . . . . . . . . . . . . . . . . . . . .12
Section 10.2. Articles, Sections, and Exhibits . . . . . . . . . . . . .12
Section 10.3. Number and Gender of Words . . . . . . . . . . . . . . . .12
Section 10.4. Accounting Terms . . . . . . . . . . . . . . . . . . . . .12
Section 10.5. Notices. . . . . . . . . . . . . . . . . . . . . . . . . .13
Section 10.6. Form and Number of Documents . . . . . . . . . . . . . . .13
Section 10.7. Survival . . . . . . . . . . . . . . . . . . . . . . . . .13
Section 10.8. Governing Law; Place of Performance. . . . . . . . . . . .13
Section 10.9. Maximum Rate . . . . . . . . . . . . . . . . . . . . . . .13
Section 10.10. Invalid Provisions. . . . . . . . . . . . . . . . . . . .14
Section 10.11. Entirety and Amendments . . . . . . . . . . . . . . . . .14
Section 10.12. Multiple Counterparts . . . . . . . . . . . . . . . . . .14
Section 10.13. Parties Bound . . . . . . . . . . . . . . . . . . . . . .14
Section 10.14. Arbitration . . . . . . . . . . . . . . . . . . . . . . .14
Section 10.15. STATUTE OF FRAUDS NOTICE. . . . . . . . . . . . . . . . .15
</TABLE>
ii
<PAGE>
LIST OF EXHIBITS
Exhibit "A" - Existing Litigation
iii
<PAGE>
LOAN AGREEMENT
This Loan Agreement (this "AGREEMENT") is made and entered into as of
September 30, 1998, by and among NORWEST BANK TEXAS, N.A. ("BANK") and
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC. ("BORROWER").
RECITALS:
Subject to the terms and conditions of this Agreement, Bank has agreed to
lend to Borrower the amounts herein described.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby covenant and agree as follows:
ARTICLE ONE
DEFINITION OF TERMS
SECTION 1.01. DEFINITIONS. For the purposes of this Agreement, unless the
context otherwise requires, the following terms shall have the respective
meanings assigned to them in this ARTICLE ONE or in the Section or recital
referred to below:
"ADVANCE" means any disbursement of an amount or amounts to be loaned by
Bank to Borrower hereunder.
"AFFILIATE" means any Person who (a) controls, is controlled by, or is
under common control with Borrower or (b) owns any legal or beneficial interest
in Borrower, is a director or officer of Borrower, or is a relative of any of
the Persons described in this clause (b).
"APPROVED PURPOSES" means with respect to the Loan to finance the purchase
of approximately 570,000 shares of Borrower's Class "B" non-voting stock.
"ARTICLE" and "ARTICLES" have the meanings set forth in SECTION 10.2.
"BANK" means Norwest Bank Texas, N.A., a national banking association.
"BORROWER" means Independent Research Agency for Life Insurance, Inc. and
its successors and assigns.
"BUSINESS DAY" means every day which is not a Nonbusiness Day.
"CALCULATION DATE" means the Closing Date and the last Business Day of each
succeeding calendar month until the Termination Date, and each date that
Borrower requests Bank to release its Lien on any portion of the Stock.
"CLOSING DATE" means September 30, 1998.
"CODE" means the Texas Business and Commerce Code.
"COLLATERAL" means all property (and any and all interest therein) of
Borrower which secures, either directly or indirectly, the Loan and the
Obligations, including, but not limited to, the Stock.
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<PAGE>
"COMMITTED SUM" means $16,000,000.00.
"CURRENT FINANCIAL STATEMENTS" means the most recent financial statements
delivered to Bank for Borrower prior to the Closing Date.
"DEBT" means (a) indebtedness or liability for borrowed money; (b)
obligations evidenced by bonds, debentures, notes, or other similar instruments;
(c) obligations for the deferred purchase price of property or services
(including trade obligations); (d) obligations as lessee under capital leases;
(e) obligations under letters of credit; (f) obligations under acceptance
facilities; (g) all guaranties, endorsements (other than for collection or
deposit in the ordinary course of business), and other contingent obligations to
purchase, to provide funds for payment, to supply funds to invest in any Person
or entity, or otherwise to assure a creditor against loss; and (h) obligations
secured by any Liens, whether or not the obligations have been assumed.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States and all
other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, insolvency, reorganization, or similar debtor relief laws
affecting the rights of creditors generally from time to time in effect.
"DEFAULT" has the meaning set forth in ARTICLE EIGHT.
"GAAP" means generally accepted accounting principles, applied on a
consistent basis, set forth in Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants and/or in statements of
the Financial Accounting Standards Board which are applicable in the
circumstances as of the date in question; and the requisite that such principles
be applied on a consistent basis means that the accounting principles observed
in a current period are comparable in all material respects to those applied in
a preceding period.
"LAWS" means all statutes, laws, ordinances, regulations, orders, writs,
injunctions, or decrees of the United States, any city or municipality, state,
commonwealth, nation, country, territory, possession, or any Tribunal.
"LIEN" means any lien, security interest, tax lien, mechanic's lien,
materialman's lien, or other encumbrance, whether arising by contract or under
law.
"LITIGATION" means any proceeding, claim, lawsuit, and/or investigation
conducted or threatened by or before any Tribunal, including, but not limited
to, proceedings, claims, lawsuits, and/or investigations under or pursuant to
any environmental, occupational safety and health, antitrust, unfair
competition, securities, Tax, or other Law, or under or pursuant to any
agreement, document, or instrument.
"LOAN DOCUMENTS" means this Agreement, the Note, the Pledge Agreements, and
any and all other agreements, documents, and instruments executed and delivered
pursuant to the terms of this Agreement, and any future amendments hereto, or
restatements hereof, or pursuant to the terms of any of the other Loan
Documents, together with any and all renewals, extensions, and restatements of,
and amendments and modifications to, any such agreements, documents, and
instruments.
"LOAN" has the meaning assigned to such term in Section 2.1.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or events which
(a) could reasonably be expected to have any adverse effect whatsoever upon the
validity, performance, or enforceability of any Loan Document, (b) is or could
reasonably be expected to become material and adverse to the financial
condition, properties, or business operations of the Person in question, (c)
could reasonably be expected to impair the ability of the Person in question to
fulfill its obligations under the terms and conditions of the Loan Documents, or
(d) could reasonably be expected to cause a Default.
2
<PAGE>
"MAXIMUM RATE" means the maximum non-usurious rate of interest (or, if the
context so requires, an amount calculated at such rate) which Bank is allowed to
contract for, charge, take, reserve, or receive in this transaction under
applicable federal or state (whichever is higher) law from time to time in
effect after taking into account, to the extent required by applicable federal
or state (whichever is higher) law from time to time in effect, any and all
relevant payments or charges under the Loan Documents.
"NONBUSINESS DAY" means each day upon which national banks in the State of
Texas are authorized by law to remain closed.
"NOTE" means the Promissory Note dated the Closing Date, in the original
principal amount of $16,000,000.00, executed by Borrower and payable to the
order of Bank, in a form acceptable to Bank, which evidences the Loan, and all
renewals, extensions, increases, amendments and replacements to such Promissory
Note.
"OBLIGATIONS" mean all present and future indebtedness, obligations, and
liabilities, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to Bank by Borrower under and pursuant to the Loan Documents,
and all interest accruing thereon and costs, expenses, and attorneys' fees
incurred in the enforcement or collection thereof, regardless of whether such
indebtedness, obligations, and liabilities are direct, indirect, fixed,
contingent, liquidated, unliquidated, joint, several, or joint and several,
including, but not limited to, the indebtedness, obligations, and liabilities
evidenced, secured, or arising pursuant to any of the Loan Documents, and all
renewals and extensions thereof, or any part thereof, and all present and future
amendments thereto.
"PERSON" means any natural person, firm, corporation, association,
partnership, joint venture, trust, other entity, or a Tribunal.
"PLEDGE AGREEMENTS" means the two Pledge Agreements, dated the Closing
Date, executed by Borrower and by USPA, covering the Stock, in a form acceptable
to Bank, and all amendments to, and replacements for, such Pledge Agreements,
and "PLEDGE AGREEMENT" means either of such Pledge Agreements.
"PRINCIPAL DEBT" means the unpaid principal balance of the Note at the time
in question.
"REQUIRED PERCENTAGE" means 120% of the Principal Balance as of the
applicable Calculation Date.
"RIGHTS" mean any remedies, powers, and privileges exercisable by Bank
under the Loan Documents, at law, equity, or otherwise.
"SECTION" and "SECTIONS" have the meanings set forth in SECTION 10.2.
"STOCK" means the securities which are described in the Pledge Agreements
as such may change from time to time.
"STOCK VALUE" means the aggregate value of the Stock calculated on the
basis of the closing price per share as reported in the Southwest Edition of the
WALL STREET JOURNAL on the Business Day immediately preceding the Calculation
Date.
"STOCK VALUE CERTIFICATE" means that certain certificate to be prepared and
executed by Borrower and delivered to Bank each month during the term of this
Agreement in accordance with SECTION 6.11 whereby Borrower calculates and
certifies to Bank the Stock Value as of the end of the preceding month.
"STOCK VALUE PERCENTAGE" means the percentage derived by dividing the Stock
Value by the Principal Balance on the date in question.
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<PAGE>
"SUBSECTION" and "SUBSECTIONS" has the meanings set forth in SECTION
10.2.
"SUBSIDIARY(IES)" means any corporation more than fifty percent (50%) of
whose capital stock now or hereafter is owned directly or indirectly by Borrower
or may be voted by Borrower. As of the Closing Date, USPA , Independent
Research Agency for Life Insurance, Inc., a Wyoming corporation, Independent
Research Agency for Life Insurance, Inc., a Montana corporation, Independent
Research Agency (New York), Inc., a New York corporation, Independent Research
Agency for Life Insurance, Inc., a Nevada corporation, Independent Research
Agency for Life Insurance, Inc., an Alabama corporation, and First Command Bank,
a federal savings bank, are the only Subsidiaries.
"TAXES" means all taxes, assessments, fees, levies, imposts, duties,
deductions, withholdings, or other charges of any nature whatsoever from time to
time or at any time imposed by any laws or by any Tribunal.
"TERMINATION DATE" means September 30, 2008.
"TRIBUNAL" means any state, commonwealth, federal, foreign, territorial, or
other court or governmental department, commission, board, bureau, agency, or
instrumentality.
"USPA" means United Services Planning Association and its successors and
assigns.
SECTION 1.2. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with those
applied in the preparation of the financial statements referred to in SECTION
6.8, and all financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
ARTICLE TWO
COMMITMENT TO LEND, TERMS OF PAYMENT
SECTION 2.1. LOAN. Subject to and upon the terms, covenants, and
conditions of this Agreement, Bank agrees to lend to Borrower, and Borrower
agrees to borrow from Bank, on the date designated by Borrower which is not more
than ninety (90) days after the Closing Date, up to and including, in the
aggregate, the amount of $16,000,000.00 (the "Loan"). The Loan shall be
evidenced by the Note. The proceeds of the Loan must be used by Borrower to
finance the purchase of approximately 570,000 shares of Borrower's Class "B"
non-voting stock.
SECTION 2.2. NOTE. The Loan shall be evidenced by, and repayable in
accordance with, the Note. The Note shall be dated and shall be executed and
delivered by Borrower to Bank on the Closing Date.
SECTION 2.3. PAYMENTS. All payments of principal of and interest on the
Loan and all other amounts payable by Borrower to Bank under this Agreement or
under the Note shall be paid to Bank when due at the principal office of Bank in
Fort Worth, Texas or at such other place or places as Bank may from time to time
designate and shall be made in lawful money of the United States of America in
immediately available funds. If any payment of principal of or interest on the
Note shall become due on a Saturday, Sunday or a public holiday under the laws
of the State of Texas, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in each such case be included in
computing interest in connection with such payment. Amounts paid on the Loan
may not be reborrowed.
SECTION 2.4. INTEREST RATE. The unpaid principal balance of the Note
shall accrue interest at the Loan Rate as set forth in the Note.
4
<PAGE>
SECTION 2.5. ORDER OF APPLICATION. Except as otherwise provided in the
Loan Documents or otherwise agreed by Bank, all payments and prepayments of the
Obligations, including proceeds from the exercise of any Rights under the Loan
Documents or proceeds of any of the Collateral, shall be applied to the
Obligations in the following order, any instructions from Borrower to the
contrary notwithstanding: (a) to expenses for which Bank shall not have been
reimbursed under the Loan Documents, and then to all indemnified amounts due
under the Loan Documents; (b) to fees then owed Bank hereunder; (c) to accrued
interest on the portion of the Obligations being paid or prepaid; (d) to the
portion of the principal being paid or prepaid; (e) to the remaining accrued
interest on the Obligations; (f) to the remaining principal; and (g) to the
remaining Obligations.
ARTICLE THREE
COLLATERAL
SECTION 3.1. SECURITY INTERESTS. In order to secure payment of the
Obligations, Borrower and USPA shall grant to Bank a security interest in the
Stock by executing and delivering to Bank the Pledge Agreements. Borrower
further agrees to execute and deliver to Bank from time to time such other
documents covering the Collateral or any part thereof and such Financing
Statements as Bank may reasonably require. Unless a Default has occurred and is
continuing at the time of Borrower's request, Bank shall release its Lien on
that portion of the Stock which exceeds the Required Percentage as of a
Calculation Date. The immediately preceding sentence shall control over any
inconsistent provision, express or implied, contained in any Loan Document.
ARTICLE FOUR
CONDITIONS PRECEDENT TO LENDING
SECTION 4.1. DELIVERY OF ITEMS. Bank shall not be obligated to make the
Loan unless and until Borrower has delivered to Bank, or Bank otherwise receives
on or prior to the Closing Date, each of the following:
(a) For Borrower and USPA, each of the following documents and
certificates:
(i) A certificate of incumbency of all officers of Borrower
and USPA who will be authorized to execute or attest any of the Loan Documents
on behalf of Borrower and USPA, dated the Closing Date, executed by the
Secretaries of Borrower and USPA;
(ii) A copy of resolutions approving the Loan Documents and
authorizing the transactions contemplated in this Agreement, duly adopted by the
Boards of Directors of Borrower and USPA, accompanied by certificates of the
Secretaries of Borrower and USPA, dated the Closing Date, that such copies are
true and correct copies of resolutions duly adopted at a meeting of the Boards
of Directors of Borrower and USPA, and that such resolutions have not been
amended, modified, or revoked in any respect and are in full force and effect as
of the Closing Date;
(iii) A copy of the Articles of Incorporation, and all
amendments thereto, of Borrower and USPA;
(iv) A copy of the Bylaws, and all amendments thereto, of
Borrower and USPA; and
(v) Certificates of the appropriate governmental officials of
the State of Texas, each dated a current date, to the effect that Borrower and
USPA are in good standing with respect to payment of franchise and similar Taxes
and are still authorized to do business in the State of Texas.
5
<PAGE>
(b) The Agreement, dated the Closing Date, duly executed by Borrower
and USPA.
(c) The Note, dated the Closing Date, duly executed by Borrower.
(d) The Pledge Agreements, dated the Closing Date, duly executed by
Borrower and USPA.
(e) Financing Statements executed by Borrower and USPA as debtor
perfecting the security interest created by the Pledge Agreements.
(f) Evidence satisfactory to Bank that the Liens created by the Loan
Documents are, collectively, first and prior to all of the Collateral.
(g) A Stock Value Certificate computed as of the Business Day
immediately preceding the Closing Date.
(h) All other evidences, certificates, opinions, agreements,
documents, and instruments as Bank may reasonably request.
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Bank as follows:
SECTION 5.1. CORPORATE EXISTENCE. Borrower is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Texas.
SECTION 5.2. AUTHORIZATION. Borrower possesses all requisite authority,
power, licenses, permits, and franchises to conduct its businesses and execute,
deliver, and comply with the terms of the Loan Documents. The execution and
delivery of this Agreement, the consummation of the transactions herein
contemplated and compliance with the terms and provisions hereof, the making of
the Loan, and the execution, issuance, and delivery of the Loan Documents have
been duly authorized and approved by all necessary corporate action on the part
of Borrower. No consent or approval of any Tribunal is required in order for
Borrower to legally execute, deliver, and comply with the terms of the Loan
Documents.
SECTION 5.3. COLLATERAL. Borrower and USPA each has good and marketable
title to the Collateral subject to no Liens.
SECTION 5.4. COMPLIANCE WITH LAWS AND DOCUMENTS. Borrower is not, nor
will the execution, delivery, and performance of and compliance with the terms
of the Loan Documents cause Borrower to be, in violation of any Laws or in
default (nor has any event occurred which, with notice or lapse of time or both,
could reasonably be expected to constitute such a default) under any material
agreement in any respect which could have a Material Adverse Effect.
SECTION 5.5. INDEBTEDNESS. Except as previously disclosed to Bank,
Borrower is not directly, indirectly, or contingently obligated with respect to
any material Debt as of the date of this Agreement.
SECTION 5.6. LITIGATION. Except for Litigation in which Borrower is
exclusively a plaintiff without a counterclaim, crossclaim, or similar action
asserted against Borrower and except as set forth on EXHIBIT "A" attached hereto
(the "Existing Litigation"), Borrower is not involved in, nor is Borrower aware
of the threat of, any Litigation which could have a Material Adverse Effect.
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<PAGE>
SECTION 5.7. TAXES. All federal, state, foreign, and other Tax returns of
Borrower required to be filed have been filed, all federal, state, foreign, and
other Taxes imposed upon Borrower which are due and payable have been paid, and
no material amounts of Taxes not reflected on such returns are payable by
Borrower, other than Taxes being contested in good faith by appropriate legal
proceedings which have been brought to Bank's attention by written notice.
SECTION 5.8. FINANCIAL STATEMENTS. All financial statements of Borrower
heretofore and hereafter to be delivered to Bank have been and shall continue to
be prepared in accordance with GAAP, and do and shall accurately represent the
financial condition of Borrower as of the date of each such financial statement.
SECTION 5.9. MARGIN STOCK. The proceeds of the Loan are not and will not
be used directly or indirectly for the purpose of purchasing or carrying, or for
the purpose of extending credit to other for the purpose of purchasing or
carrying, any "margin stock" as that term is defined in Regulation U of the
Board of Governors of the Federal Reserve System.
ARTICLE SIX
CERTAIN AFFIRMATIVE COVENANTS
Until payment and performance in full of the Obligations, unless Borrower
receives from Bank a prior written statement that Bank does not object to a
deviation, Borrower covenants and agrees that:
SECTION 6.1. MATERIAL ADVERSE EFFECT. Borrower will promptly give written
notice to Bank of any matter (including Litigation) which has resulted in, or
might reasonably be expected to result in, a Material Adverse Effect, and advise
Bank from time to time of the status thereof.
SECTION 6.2. EXPENSES OF BANK. Borrower will reimburse Bank for all
reasonable out-of-pocket costs, fees, and expenses, including, without
limitation, the reasonable fees and disbursements of counsel for Bank, (a) in
connection with or in anticipation of a Default, (b) in connection with any
amendment or waiver to any of the Loan Documents, or (c) in connection with any
request or action initiated by Borrower, all of which shall be and become a part
of the Obligations.
SECTION 6.3. INSURANCE. Borrower will maintain or cause to be maintained,
with financially sound and reputable insurers acceptable to Bank, insurance with
respect to its properties and businesses against such casualties and
contingencies and of such types and in such amounts as is reasonably
satisfactory to Bank.
SECTION 6.4. TAXES. Borrower will promptly pay or cause to be paid when
due (for the account of Bank, where appropriate) any and all Taxes due by
Borrower, respectively, including, without limitation, all taxes, duties, fees,
levies and other charges of whatsoever nature which have been or may be imposed
by any government or by any department, agency, state, other political
subdivision or taxing authority thereof or therein, including, without
limitation, those due on or in connection with the execution, issuance, delivery
or registration of this Agreement or the Note; provided that Borrower shall not
be required to pay and discharge any such Taxes or charges so long as the
validity thereof shall be contested in good faith by appropriate proceedings and
Borrower shall set aside on its books adequate reserves with respect thereto and
shall pay any such Taxes or charge before the property subject thereto shall be
sold to satisfy any lien which has attached as security therefor.
SECTION 6.8. ANNUAL FINANCIAL STATEMENTS. Borrower shall cause to be
delivered to Bank, as soon as practicable after the end of each fiscal year, and
in any event within ninety (90) days thereafter, an unqualified audited
consolidated balance sheet of Borrower and USPA as of the end of such fiscal
year and related statements of income, contingent liabilities, and retained
earnings, in reasonable detail, prepared in accordance with GAAP and certified
by an independent certified public accounting firm
7
<PAGE>
reasonably acceptable to Bank as fairly presenting the consolidated financial
condition and results of operations for Borrower and USPA. Such financial
statements shall be accompanied by a copy of the report to management delivered
to Borrower by such accountants and also by a statement signed by Borrower's
Chief Executive Officer or Chief Financial Officer representing to Bank that
such financial statements are true and complete and fairly represent the
consolidated financial condition and results of operation for Borrower and USPA,
and that no Default is in existence as of the date of delivery of such
statements.
SECTION 6.9. STOCK VALUE CERTIFICATE. Borrower will deliver to Bank as
soon as available and in any event within ten (10) days after the last day of
each month a Stock Value Certificate calculated as of the last Business Day of
such month.
SECTION 6.10. COMPLIANCE WITH APPLICABLE LAWS. Borrower will comply with
the requirements of all applicable Laws, rules, regulations and orders of any
governmental authority, except where contested in good faith and by proper
proceedings.
SECTION 6.11. NOTICE OF EVENT OF DEFAULT AND SUITS. Upon discovery,
Borrower will promptly notify Bank of any breach of any of the covenants
contained in Article Six or Article Seven and of the occurrence of any Default
hereunder, or of the filing of any claim, action, suit or proceeding before any
Tribunal agency against Borrower in which an adverse decision could reasonably
be expected to have a Material Adverse Effect upon Borrower and advise Bank from
time to time of the status thereof.
SECTION 6.12. YEAR 2000. Borrower acknowledges its awareness of the
issues and problems facing Borrower in connection with the effect of the year
2000 on computer hardware, software and other automated systems, and makes the
following representations, warranties and covenants:
(a) Each hardware and software product presently in use by Borrower, or
contemplated to be used by Borrower in the future is presently, or
shall be before the occurrence of the year 2000, able to accurately
process date/time data (including, but not limited to, calculating,
comparing and sequencing) from, into, and between the 20th and 21st
centuries, and the years 1999 and 2000 and leap year calculations.
(b) Borrower has established a budget for the year 2000 compliance effort
and such budget shall be sufficient to manage all financial needs in
connection with the year 2000 issues.
(c) Borrower has contingency plans in place for (i) the occurrence of a
failure or partial failure of a critical system, or (ii) the inability
of Borrower to complete a year 2000 testing and compliance program.
ARTICLE SEVEN
CERTAIN NEGATIVE COVENANTS
So long as Bank is committed to make Advances hereunder, and thereafter
until payment and performance in full of the Obligations, Borrower covenants and
agrees that, without the prior written consent of Bank:
SECTION 7.1. MERGER OR SALE OF ASSETS. Borrower will not merge or
consolidate with or into any other Person other than First Command Financial
Corporation or any Subsidiary or Affiliate of Borrower (unless Borrower is the
surviving entity) or sell all, or substantially all, of its property, assets or
business to any other Person.
8
<PAGE>
SECTION 7.2. LIENS. Borrower will not mortgage, assign, encumber,
hypothecate or grant a security interest in any of the Collateral to any Person
other than Bank.
SECTION 7.3. CONTINUATION OF BUSINESS. Borrower will not discontinue the
business in which it is presently engaged, or cause to permit to be terminated
or surrendered any license, franchise or other agreement necessary to the
conduct to such businesses, which, in the reasonable judgment of Bank, may have
a Material Adverse Effect on the financial condition of Borrower.
SECTION 7.4. STOCK VALUE; REQUIRED PERCENTAGE. On the Closing Date, the
Stock Value Percentage shall not be less than 140%. Thereafter, as of each
Calculation Date, Borrower shall maintain the Stock Value Percentage at not less
than the Required Percentage. If the Stock Value Percentage is less than 120%
but equal to or greater than 110% then, within thirty (30) calendar days after
Bank provides written notification to Borrower of such, Borrower must provide
additional acceptable collateral to Bank, or reduce the Principal Balance, or
both, so that the Stock Value Percentage is not less than the Required
Percentage. If the Stock Value Percentage is less than 110% but equal to or
greater than 100% then, within fifteen (15) calendar days after Bank provides
written notice to Borrower of such, Borrower must provide additional acceptable
collateral to Bank, or reduce the Principal Balance, or both, so that the Stock
Value Percentage is not less than the Required Percentage. If the Stock Value
Percentage is less than 100% then, within five (5) calendar days after Bank
provides written notification to Borrower of such, Borrower must provide
additional acceptable collateral to Bank, or reduce the Principal Balance, or
both, so that the Stock Value Percentage is not less than the Required
Percentage. Borrower's failure to maintain the Stock Value Percentage at or in
excess of the Required Percentage as set forth in this SECTION 7.4 shall
constitute a Default under this Agreement.
ARTICLE EIGHT
DEFAULT
The term "Default" as used herein shall mean the occurrence of any one or
more of the following events (including the passage of time, if any, specified
therefor):
SECTION 8.1. PAYMENT OF OBLIGATIONS. The failure or refusal of Borrower
to punctually pay the principal of, or the interest on, the Obligations, or any
part thereof, as the same become due in accordance with the terms of the Loan
Documents and such failure continues for more than ten (10) days after written
notice thereof shall have been given by Bank to Borrower; provided, however,
Bank is not obligated to provide more than three (3) such notices during any
twelve (12) month period.
SECTION 8.2. CERTAIN NEGATIVE COVENANTS. The failure or refusal of
Borrower to punctually and properly perform, observe, and comply with any
covenant, agreement, or condition contained in Article Seven of this Agreement
in accordance with its terms.
SECTION 8.3. OTHER COVENANTS. The failure or refusal of Borrower to
properly perform, observe, and comply with any covenant or agreement contained
in any of the Loan Documents (other than covenants to pay the Obligations and
covenants contained in Article Seven of this Agreement), and such failure or
refusal continues for a period of thirty (30) days after written notice thereof
shall have been given by Bank to Borrower; provided, however, Bank may extend
said thirty (30) day period if Borrower, in Bank's sole discretion, has been
diligently pursuing its attempt to cure said breach; and provided, further, that
Bank is not obligated to provide more than three (3) such notices during any
twelve (12) month period.
SECTION 8.4. VOLUNTARY DEBTOR RELIEF. Borrower or USPA shall (a) execute
an assignment for the benefit of creditors, or (b) become or be adjudicated as
bankrupt or insolvent, or (c) admit in writing its inability to pay its debts
generally as they become due, or (d) apply for or consent to the appointment of
9
<PAGE>
a conservator, receiver, trustee, or liquidator of it or all or a substantial
part of its assets, or (e) file a voluntary petition seeking reorganization or
an arrangement with creditors or to take advantage or seek any other relief
under any Debtor Relief law now or hereafter existing, or (f) file an answer
admitting the material allegations of or consenting to, or default in, a
petition filed against it in any liquidation, conservatorship, bankruptcy,
reorganization, rearrangement, debtor's relief, or other insolvency proceedings,
or (g) institute or voluntarily be or become a party to any other judicial
proceedings intended to effect a discharge of its debts, in whole or in part, or
a postponement of the maturity or the collection thereof, or a suspension of any
of the Rights or powers of Bank granted in any of the Loan Documents, or (h)
take any corporate action to effectuate any of the foregoing.
SECTION 8.5. INVOLUNTARY PROCEEDINGS. Borrower or USPA shall
involuntarily (a) have an order, judgment, or decree entered against it by any
Tribunal pursuant to any Debtor Relief Law that could suspend or otherwise
affect any of the Rights granted to Bank in any of the Loan Documents, and such
order, judgment, or decree is not permanently stayed, vacated, or reversed
within ninety (90) days after the entry thereof, or (b) have a petition filed
against it or any of its property seeking the benefit or benefits provided for
by any Debtor Relief Law that would suspend or otherwise affect any of the
Rights granted to Bank in any of the Loan Documents, and such petition is not
discharged within ninety (90) days after the filing thereof.
SECTION 8.6. OTHER OBLIGATIONS. Borrower or USPA shall default in the due
performance or observance of any covenant or condition of any other agreement
with Bank (including any Promissory Note) and such default shall have continued
beyond any period of grace or cure provided with respect thereto.
SECTION 8.7. DISSOLUTION OF BORROWER. The dissolution of Borrower or USPA
for any reason whatsoever other than as a result of the merger of Borrower or
USPA with and into First Command Financial Corporation or any Subsidiary or
Affiliate of Borrower or USPA.
SECTION 8.8. MISREPRESENTATION. Any statement, representation, or
warranty heretofore or hereafter made in the Loan Documents or in any writing or
in any other communication ever delivered to Bank pursuant to the Loan
Documents, or any statement or representation made in any certificate, report,
or opinion delivered to Bank pursuant to the Loan Documents, is false,
calculated to mislead, misleading, or erroneous in any material respect at the
time made.
ARTICLE NINE
CERTAIN RIGHTS OF BANK
SECTION 9.1. RIGHTS UPON DEFAULT. If a Default shall occur, at any time
thereafter, and in each such case, unless such Default shall have been remedied
to the satisfaction of Bank or waived in writing by Bank, Bank may, at its
election, do any one or more of the following:
(a) ACCELERATION. Declare the entire unpaid balance of the
Obligations, or any part thereof, immediately due and payable, whereupon they
shall be due and payable without notice of nonpayment, demand for payment,
presentment for payment, notice of intention to accelerate maturity, notice of
acceleration of maturity, protest, notice of protest, or any other notice or
demand of any kind, all of which are hereby waived by Borrower.
(b) POSSESSION AND PERFORMANCE. Without advance notice to Borrower,
which is hereby waived, take possession of the Collateral.
(c) JUDGMENT. Reduce any claim to judgment.
10
<PAGE>
(d) FORECLOSURE. Foreclose or otherwise enforce any and all Liens
granted to Bank to secure payment and performance of the Obligations, and, at
Bank's option, buy all or any part of the Collateral at any public sale, it
being understood that Bank may, at its option, foreclose or enforce all such
Liens simultaneously or individually on the same or difference dates or
foreclose or enforce one or more of such Liens without foreclosing or enforcing
any other such Liens.
(e) RIGHTS. Exercise any and all rights afforded by the laws of the
State of Texas or any other jurisdiction, or by the Loan Documents or any and
all other instruments, documents, and agreements made to secure or assure
payment and performance of the Obligations or any other indebtedness of Borrower
or executed in connection therewith, or by law or equity, or otherwise.
SECTION 9.2. PERFORMANCE BY BANK. Should any covenant, duty, or agreement
of Borrower, fail to be performed in accordance with the terms of the Loan
Documents, Bank may, at its option, perform or attempt to perform, such
covenant, duty, or agreement on behalf of Borrower. In such event, Borrower
shall, at the request of Bank, promptly pay to Bank any amount expended by Bank
in such performance or attempted performance, together with interest thereon at
the rate of twelve percent (12%) per annum from the date of such expenditure by
Bank until paid. Notwithstanding the foregoing, it is expressly understood that
Bank does not assume any liability or responsibility for the performance of any
duties of Borrower hereunder or in connection with all or any part of the
Collateral.
SECTION 9.3. DIMINUTION IN COLLATERAL VALUE. Bank does not assume, and
shall never have, any liability or responsibility for any loss or diminution in
the value of all or any part of the Collateral.
SECTION 9.4. BANK NOT IN CONTROL. None of the covenants or other
provisions contained in this Agreement shall, or shall be deemed to, give Bank
the Right to exercise control over the affairs and/or management of Borrower,
the power of Bank being limited to the Right to exercise the remedies provided
in the other Sections of this Article.
SECTION 9.5. WAIVERS. The acceptance of Bank at any time and from time to
time of part payment on the Obligations shall not be deemed to be a waiver of
any Default then existing. No waiver by Bank of any Default shall be deemed to
be a waiver of any other then existing or subsequent Default. No delay or
omission by Bank in exercising any Right under the Loan Documents shall impair
such Right or be construed as a waiver thereof or any acquiescence therein, nor
shall any single or partial exercise of any such Right preclude other or further
exercise thereof, or the exercise of any other Right under the Loan Documents or
otherwise.
SECTION 9.6. CUMULATIVE RIGHTS. All Rights available to Bank under the
Loan Documents shall be cumulative of and in addition to all other Rights
granted to Bank at law or in equity, whether or not the Obligations be due and
payable and whether or not Bank shall have instituted any suit for collection,
foreclosure, or other action under or in connection with the Loan Documents.
SECTION 9.7. INDEMNIFICATION OF BANK. Borrower shall indemnify and hold
harmless Bank against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses, and disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against Bank, in any way relating to, or arising out of, the Loan
Documents or any of the transactions contemplated therein, to the extent that
any such indemnified liabilities result, directly or indirectly, from any claims
made or actions, suits, or proceedings commenced by or on behalf of any Person
other than Bank; provided that Bank shall not have the Right to be indemnified
hereunder for its own negligence or willful misconduct.
SECTION 9.8. APPLICATION OF PROCEEDS. Bank shall be entitled to apply the
proceeds of any sale of all or any part of the Collateral toward payment of the
Obligations in such order and manner as Bank, in its discretion, may deem
advisable. Borrower shall remain liable as to any deficiency, if any, and Bank
shall account to Borrower for any surplus remaining after payment in full of the
Obligations.
11
<PAGE>
SECTION 9.9. EXPENDITURES BY BANK. Any sums spent by Bank pursuant to the
exercise of any Right provided herein shall become part of the Obligations and
shall bear interest at the rate of twelve percent (12%) per annum from the date
spent until the date repaid by Borrower.
ARTICLE TEN
MISCELLANEOUS
SECTION 10.1. HEADINGS. The headings, captions, and arrangements used in
any of the Loan Documents are, unless specified otherwise, for convenience only
and shall not be deemed to limit, amplify, or modify the terms of the Loan
Documents, nor affect the meaning thereof.
SECTION 10.2. ARTICLES, SECTIONS, AND EXHIBITS. All references to
"Article," "Articles," "Section," "Sections," "Subsection," or "Subsections"
contained herein are, unless specifically indicated otherwise, references to
articles, sections, and subsections of this Agreement. All references to
"Exhibits" contained herein are references to exhibits attached hereto, all of
which are made a part hereof for all purposes, the same as if set forth herein
verbatim, it being understood that if any exhibit attached hereto, which is to
be executed and delivered, contains blanks, the same shall be completed
correctly and in accordance with the terms and provisions contained and as
contemplated herein prior to or at the time of the execution and delivery
thereof.
SECTION 10.3. NUMBER AND GENDER OF WORDS. Whenever herein the singular
number is used, the same shall include the plural where appropriate, and vice
versa; and words of any gender shall include each other gender where
appropriate.
SECTION 10.4. ACCOUNTING TERMS. All accounting and financial terms used
herein, and the compliance with each covenant contained herein which relates to
financial matters, shall be determined in accordance with GAAP, consistently
applied, as set forth in the opinions of Accounting Principles Board of the
American Institute of Certified Public Accountants and/or in the Statements of
the Financial Accounting Standards Board which are applicable under the
circumstances as of the date in question, and the requisite that such principles
be applied on a' consistent basis means that the accounting principles being
observed in a current period are comparable in all material respects to those
applied in a preceding period, except to the extent that a deviation therefrom
is expressly stated herein.
SECTION 10.5. NOTICES. All notices and other communications provided for
under this Agreement and under the other Loan Documents to which Borrower is a
party shall be in writing (including telegraphic, telex and facsimile
transmissions) and mailed or transmitted or delivered as set forth on the
execution page of this Agreement or, as to each party, to such other name or at
such other address as shall be designated by such party in a written notice to
the other party complying as to delivery with the terms of this SECTION 10.05.
Except as otherwise provided in this Agreement, all such notices and
communications shall be effective when deposited in the mails or delivered to
the telegraph company, or sent, answer back received, respectively, addressed as
aforesaid. Each of the parties hereto shall be entitled to specify a different
address by giving written notice to the other party hereto in accordance with
this Section.
SECTION 10.6. FORM AND NUMBER OF DOCUMENTS. Each agreement, document,
instrument, or other writing to be furnished to Bank under any provision of this
Agreement must be in form and substance and in such number of counterparts as
may be satisfactory to Bank and its counsel.
SECTION 10.7. SURVIVAL. All covenants, agreements, undertakings,
representations, and warranties made in any of the Loan Documents shall survive
all closings under the Loan Documents and shall continue in full force and
effect so long as any part of the Obligations remain and, except as otherwise
indicated, shall not be affected by any investigation made by any party.
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SECTION 10.8. GOVERNING LAW; PLACE OF PERFORMANCE. THE LOAN DOCUMENTS ARE
BEING EXECUTED AND DELIVERED, AND ARE INTENDED TO BE PERFORMED, IN THE STATE OF
TEXAS, AND THE LAWS OF SUCH STATE AND OF THE UNITED STATES SHALL GOVERN THE
RIGHTS AND DUTIES OF THE PARTIES HERETO AND THE VALIDITY, CONSTRUCTION,
ENFORCEMENT, AND INTERPRETATION OF THE LOAN DOCUMENTS, EXCEPT TO THE EXTENT
OTHERWISE SPECIFIED IN ANY OF THE LOAN DOCUMENTS. THIS AGREEMENT, ALL OF THE
OTHER LOAN DOCUMENTS, AND ALL OF THE OBLIGATIONS OF BORROWER AND GUARANTORS
UNDER ANY OF THE LOAN DOCUMENTS ARE PERFORMABLE IN TARRANT COUNTY, TEXAS AND
VENUE OF ANY LITIGATION INVOLVING THE LOAN DOCUMENTS SHALL BE MAINTAINED
EXCLUSIVELY IN TARRANT COUNTY.
SECTION 10.9. MAXIMUM RATE. This Agreement and all of the other Loan
Documents are intended to be performed in accordance with, and only to the
extent permitted by, all applicable usury laws. If any provision hereof or of
any of the other Loan Documents or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, neither the application of such provision to any other person or
circumstance nor the remainder of the instrument in which such provision is
contained shall be affected thereby and shall be enforced to the greatest extent
permitted by applicable laws. It is expressly stipulated and agreed to be the
intent of Borrowers and Bank to at all times comply with the usury and other
applicable laws now or hereafter governing the interest payable on the
Obligations. If the applicable law is ever revised, repealed or judicially
interpreted so as to render usurious any amount called for under this Agreement
or under any of the other Loan Documents, or contracted for, charged, taken,
reserved or received with respect to the Obligations, or if Bank's exercise of
the option to accelerate the maturity of the Note, or if any prepayment of the
Note results in the payment of any interest in excess of that permitted by law,
then it is the express intent of Borrowers and Bank that all excess amounts
theretofore collected by Bank be credited on the principal balance of the Note
(or, if the Note and all of the Obligations have been paid in full, refunded),
and the provisions of the Note and the other Loan Documents immediately be
deemed reformed and the amounts thereafter collectable hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the then applicable laws, but so as to permit the recovery of the
fullest amount otherwise called for hereunder or thereunder. All sums paid, or
agreed to be paid, for the use, forbearance , detention, taking, charging,
receiving or reserving on the Obligations shall, to the extent permitted by
applicable laws, be amortized, prorated, allocated and spread throughout the
full term of such Obligations until payment in full so that the rate or amount
of interest on account of such Obligations does not exceed the usury ceiling
from time to time in effect and applicable thereto for so long as debt is
outstanding under the Note. To the extent that Bank is relying on Chapter 303
of the Texas Finance Code to determine the maximum rate ("MAXIMUM RATE") payable
on the Note, Bank will utilize the weekly ceiling from time to time in effect as
provided in such Chapter 303. To the extent federal law permits Bank to
contract for, charge or receive a greater amount of interest, Bank will rely on
federal law instead of such article, as amended, for the purpose of determining
the Maximum Rate. Additionally, to the extent permitted by applicable law now
in effect, Bank may, at its option and from time to time, implement any other
method of computing the Maximum Rate under such article, as amended, or under
other applicable law by giving notice, if required, to Borrowers as provided by
applicable law now or hereafter in effect. In no event shall the provisions of
Chapter 346 of the Texas Finance Code (which regulates certain revolving credit
loan accounts and revolving triparty accounts) apply to the Obligations.
Notwithstanding anything to the contrary contained herein or in any of the other
Loan Documents, it is not the intention of Bank to accelerate the maturity of
any interest that has not accrued at the time of such acceleration or to collect
unearned interest at the time of such acceleration.
SECTION 10.10. INVALID PROVISIONS. If any provision of any of the Loan
Documents is held to be illegal, invalid, or unenforceable under present or
future laws effective during the term thereof, such provision shall be fully
severable, the appropriate Loan Paper shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part thereof;
and the remaining provisions thereof shall remain in full force and effect and
shall not be effected by the illegal, invalid, or unenforceable provision or by
its severance therefrom. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of such
Loan Paper a provision as
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similar in terms to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
SECTION 10.11. ENTIRETY AND AMENDMENTS. This instrument embodies the
entire agreement between the parties relating to the subject matter hereof
(except documents, agreements and instruments delivered or to be delivered in
accordance with the express terms hereof), supersedes all prior agreements and
understandings, if any, relating to the subject matter hereof, and may be
amended only by an instrument in writing executed jointly by Borrower and Bank
and supplemented only by documents delivered or to be delivered in accordance
with the express terms hereof.
SECTION 10.12. MULTIPLE COUNTERPARTS. This Agreement has been executed in
a number of identical counterparts, each of which constitutes an original and
all of which constitute, collectively, one agreement; but in making proof of
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart.
SECTION 10.13. PARTIES BOUND. This Agreement shall be binding upon and
inure to the benefit of Borrower and Bank and their respective successors and
assigns; provided that Borrower may not, without the prior written consent of
Bank, assign any of its Rights, duties, or Obligations hereunder. No term or
provision of this Agreement shall inure to the benefit of any Person other than
Borrower and Bank and their respective successors and assigns; consequently, no
Person other than Borrower and Bank and their respective successors and assigns,
shall be entitled to rely upon, or to raise as a defense, in any manner
whatsoever, the failure of Borrower or Bank to perform, observe, or comply with
any such term or provision.
SECTION 10.14. ARBITRATION. Except for "Core Proceedings" under the
United States Bankruptcy Code, Bank, Borrower and USPA agree to submit to
binding arbitration all claims, disputes and controversies between or among
them, whether in tort, contract or otherwise (and their respective employees,
officers, directors, attorneys, and other agents) arising out of or relating to
in any way (i) the loan and related loan and security documents which are the
subject of this Agreement and its negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation,
inducement, enforcement, default or termination; or (ii) requests for additional
credit. Any arbitration proceeding will (i) proceed in Fort Worth, Texas; (ii)
be governed by the Federal Arbitration Act (Title 9 of the United States Code);
and (iii) be conducted in accordance with the Commercial Arbitration rules of
the American Arbitration Association ("AAA"). The arbitration requirement does
not limit the right of either party to (i) foreclose against real or personal
property collateral; (ii) exercise self-help remedies relating to collateral or
proceeds of collateral such as setoff or repossession; or (iii) obtain
provisional ancillary remedies such as replevin, injunctive relief, attachment
or the appointment of a receiver, before during or after the pendency of any
arbitration proceeding. This exclusion does not constitute a waiver of the
right or obligation of either party to submit any dispute to arbitration,
including those arising from the exercise of the actions detailed in sections
(i), (ii) and (iii) of this paragraph. Any arbitration proceeding will be
before a single arbitrator selected according to the Commercial Arbitration
Rules of the AAA. The arbitrator will be a neutral attorney who has practiced
in the area of commercial law for a minimum of ten years. The arbitrator will
determine whether or not an issue is arbitratable and will give effect to the
statutes of limitation in determining any claim. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction. In
any arbitration proceeding the arbitrator will decide (by documents only or with
a hearing at the arbitrator's discretion) any pre-hearing motions which are
similar to motions to dismiss for failure to state a claim or motions for
summary adjudication. In any arbitration proceeding discovery will be permitted
and will be governed by the Texas Rules of Civil Procedure. All discovery must
be completed no later than 20 days before the hearing date and within 180 days
of the commencement of arbitration proceedings. Any requests for an extension
of the discovery periods, or any discovery disputes, will be subject to final
determination by the arbitrator upon a showing that the request for discovery is
essential for the party's presentation and that no alternative means for
obtaining information is available. The arbitrator shall award costs and
expenses of the arbitration proceeding in accordance with the provisions of this
Agreement and/or other Loan Documents.
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SECTION 10.15. STATUTE OF FRAUDS NOTICE. THIS WRITTEN LOAN AGREEMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
Effective the 30th day of September, 1998.
BANK: NORWEST BANK TEXAS, N.A.
By: /s/ Tom Pittman
----------------------------------------
Name: Tom Pittman
--------------------------------------
Title: Senior Vice President
-------------------------------------
Address for mail delivery and notices:
777 West Rosedale Street
P.O. Box 1480
Fort Worth, Texas 76101-1480
Attention: Tom Pittman
--------------------------------
Telephone No: (817) 347-8936
------------------------------
Telecopy No: (817) 347-8889
------------------------------
BORROWER: INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
By: /s/ Lamar C. Smith
----------------------------------------
Name: Lamar C. Smith
--------------------------------------
Title: Chief Executive Officer
-------------------------------------
Address for mail delivery and notices:
4100 South Hulen
P.O. Box 2387
Fort Worth, Texas 76113
Attention: Chief Financial Officer
--------------------------------
Telephone No: (817) 731-8621, Ext. 2255
------------------------------
Telecopy No: (817) 731-8621, Ext. 2176
------------------------------
USPA: Reviewed and Agreed as to the Provisions Applicable to
USPA:
UNITED SERVICES PLANNING ASSOCIATION
By: /s/ Lamar C. Smith
----------------------------------------
Name: Lamar C. Smith
--------------------------------------
Title: Chief Executive Officer
-------------------------------------
15
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EXHIBIT "A"
EXISTING LITIGATION
None
16
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NORWEST BANK TEXAS, N.A.
PROMISSORY NOTE
$16,000,000.00 September 30, 1998
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Effective Date
September 30, 2008
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Note Number Maturity Date
1. DEFINITIONS. As used in this Promissory Note, the following terms
have the meanings indicated below.
"BANK" means Norwest Bank Texas, N.A. and its successors and assigns.
"BORROWER" means Independent Research Agency for Life Insurance, Inc.
"BUSINESS DAY" has the meaning assigned to such term in the Loan Agreement.
"EFFECTIVE DATE" means September 30, 1998.
"LOAN AGREEMENT" means the Loan Agreement dated the Effective Date, between
Bank and Borrower, as such may be amended and/or superseded from time to time.
"LOAN DOCUMENTS" has the meaning assigned to such term in the Loan
Agreement.
"LOAN RATE" means six and seven-tenths percent (6.70%) per annum.
"MATURITY DATE" means September 30, 2008.
"MAXIMUM RATE" means at the particular time in question the maximum rate of
interest which, under applicable law, may then be charged on this Note. If such
maximum rate of interest changes after the date hereof and this Note provides
for a fluctuating rate of interest, the Maximum Rate shall be automatically
increased or decreased, as the case may be, without notice to Borrower from time
to time as of the effective date of each change in such maximum rate. If
applicable law ceases to provide for such maximum rate of interest, the Maximum
Rate means eighteen percent (18%) per annum.
"NOTE" means this Promissory Note and all modifications, increases,
replacements, renewals, and extensions of this Promissory Note.
2. PROMISE TO PAY. For value received, Borrower unconditionally hereby
promises to pay to the order of Bank, at its principal place of business located
at 777 West Rosedale Street, Fort Worth, Texas or at such other place as the
holder of this Note may hereafter designate, the principal sum of Sixteen
Million and no/100 Dollars ($16,000,000.00) or so much thereof as may be
advanced, in lawful money of the United States of America for the payment of
private debts, together with interest on the unpaid principal balance from time
to time owing hereon computed from the date hereof until maturity at a per annum
rate which shall be, except as otherwise provided in this Note, the lesser of
(a) the Loan Rate in effect from day to day, or (b) the Maximum Rate. Interest
on this Note is computed on a 365/360 simple interest basis; that is by applying
the ratio of the annual interest over a year of 360 days times the outstanding
principal balance, times the actual number of days the principal balance is
outstanding, unless such calculation would result in a usurious rate, in which
case interest shall be calculated on a per diem basis of a year of 365 or 366
days as the case may be. All past due principal and matured interest,
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at Bank's option, shall bear interest at the rate of twelve percent (12%) per
annum. This Note is subject to multiple advances but this Note does not have a
revolving credit feature.
3. PAYMENTS. This Note is payable as follows: principal and interest
shall be payable in equal monthly installments of $183,309.00 with the first of
such installments due on the 30th day of the calendar month in which Borrower
receives an advance under this note, and a like installment shall be due on the
same day of each succeeding calendar month thereafter until the Maturity Date,
on which date all unpaid principal and accrued, unpaid interest shall be due and
payable. If any payment of principal or interest on this Note shall become due
on a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and any such extension of time shall be included in
computing interest in connection with such payment. All regularly scheduled
payments of the indebtedness evidenced by this Note shall be applied first to
any accrued, unpaid interest then due and payable hereunder and then to the
principal amount then due and payable. All non-regularly scheduled payments and
payments made after an Event of Default has occurred and is continuing shall be
applied to such indebtedness (including collection costs) in such order and
manner as the holder of this Note may from time to time determine in its sole
discretion. Borrower agrees that all payments of any obligation due hereunder
shall be final, and if any such payment is recovered in any bankruptcy,
insolvency or similar proceedings instituted by or against Borrower, all
obligations due hereunder shall be automatically reinstated in respect of the
obligation as to which payment is so recovered.
4. PREPAYMENT. Borrower may prepay this Note in part or in full without
penalty before final maturity, whether by cash, a new loan, renewal, or
otherwise. Prepayment in full shall consist of payment of the remaining unpaid
principal balance together with all accrued and unpaid interest and all other
amounts, costs and expenses for which Borrower is responsible under this Note or
any other agreement with Bank pertaining to this loan, and in no event will
Borrower ever be required to pay any unearned interest. Early payments will
not, unless agreed in writing, relieve Borrower of Borrower's obligation to
continue to make payments under the above payment schedule.
5. WAIVER. Except as otherwise provided herein and in the Loan
Agreement, Borrower hereby waives all notices of nonpayment, demands for
payment, presentments for payment, notices of intention to accelerate maturity,
notices of actual acceleration of maturity, grace, protests, notices of protest,
and any other demands or notices of any kind as to this Note, diligence in
collection hereof and in bringing suit hereon, and any notice of, or defense on
account of, the extension of time of payments or change in the method of
payments, and without further notice hereby consents to any and all renewals and
extensions in the time of payment hereof either before or after maturity and the
release of any party primarily or secondarily liable hereon. Borrower agrees
that Bank's acceptance of partial or delinquent payments, or failure of Bank to
exercise any right or remedy contained herein or in any instrument given as
security for the payment of this Note shall not be a waiver of any obligation of
Borrower to Bank or constitute waiver of any similar default subsequently
occurring. The holder of this Note is entitled to the benefits and security
provided in the Loan Documents.
6. EVENTS OF DEFAULT AND REMEDIES. At the option of Bank, the entire
unpaid principal balance and accrued interest owing hereon shall at once become
due and payable without notice or demand upon the occurrence at any time of any
of the following "EVENTS OF DEFAULT" (herein so called):
A. The failure of Borrower to pay (or cause to be paid) any
installment of principal or interest of this Note in accordance with its terms,
through acceleration, or otherwise, and such failure continues for a period of
ten (10) days after written notification of such failure from Bank to Borrower;
provided, however, Borrower is not entitled to more than three (3) such notices
during any twelve (12) month period; or
B. A Default occurs under the Loan Agreement.
It is understood and agreed by Borrower that the foregoing "Events of
Default" are cumulative and in addition to any "Defaults" or "Events of Default"
contained in the other Loan Documents, or other documents modifying, renewing,
extending, evidencing, securing or pertaining to
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this Note or the loan evidenced hereby. Upon the occurrence of any of the Events
of Default, and if such has not been cured within the designated period of time,
if any, then the holder hereof may, at its option, do any one or more of the
following: (a) declare the entire unpaid balance of principal of and accrued,
unpaid interest upon this Note to be immediately due and payable, (b) reduce any
claim to judgment, (c) foreclose all liens and security interests securing
payment thereof or any part thereof, and/or (d) without notice of default or
demand, pursue and enforce any of Bank's other rights and remedies provided
under or pursuant to any applicable laws or agreement. All rights and remedies
of Bank shall be cumulative and concurrent and may be pursued singularly,
successively, or together, at the sole discretion of Bank, and may be exercised
as often as the occasion therefor shall arise. Failure by Bank to exercise any
right or remedy upon the occurrence of an Event of Default shall not constitute
a waiver of the right to exercise such right or remedy upon the occurrence of
any subsequent Event of Default. In the event that Bank, after the occurrence
of an Event of Default hereunder, consults an attorney regarding the enforcement
of any of its rights under this Note or if this Note is placed in the hands of
an attorney for collection or if suit be brought to enforce this Note, Borrower
promises to pay all costs thereof, including reasonable attorneys' fees. Such
costs and attorneys' fees shall include, without limitation, costs and
reasonable attorneys' fees incurred by Bank in any appellate proceedings or in
any proceedings under any present or future federal bankruptcy act, state
receivership law or probate.
7. USURY. This Note and all of the other Loan Documents are intended to
be performed in accordance with, and only to the extent permitted by, all
applicable usury laws. If any provision hereof or of any of the other Loan
Documents or the application thereof to any person or circumstance shall, for
any reason and to any extent, be invalid or unenforceable, neither the
application of such provision to any other person or circumstance nor the
remainder of the instrument in which such provision is contained shall be
affected thereby and shall be enforced to the greatest extent permitted by law.
It is expressly stipulated and agreed to be the intent of the holder hereof to
at all times comply with the usury and other applicable laws now or hereafter
governing the interest payable on the indebtedness evidenced by this Note. If
the applicable law is ever revised, repealed or judicially interpreted so as to
render usurious any amount called for under this Note or under any of the other
Loan Documents, or contracted for, charged, taken, reserved or received with
respect to the indebtedness evidenced by this Note, or if Bank's exercise of the
option to accelerate the maturity of this Note, or if any prepayment by Borrower
results in Borrower having paid any interest in excess of that permitted by law,
then it is the express intent of Borrower and Bank that all excess amounts
theretofore collected by Bank be credited on the principal balance of this Note
(or, if this Note and all other indebtedness arising under or pursuant to the
other Loan Documents have been paid in full, refunded to Borrower), and the
provisions of this Note and the other Loan Documents immediately be deemed
reformed and the amounts thereafter collectable hereunder and thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the then applicable law, but so as to permit the recovery of the
fullest amount otherwise called for hereunder or thereunder. All sums paid, or
agreed to be paid, by Borrower for the use, forbearance, detention, taking,
charging, receiving or reserving of the indebtedness of Borrower to Bank under
this Note or arising under or pursuant to the other Loan Documents shall, to the
maximum extent permitted by applicable law, be amortized, prorated, allocated
and spread throughout the full term of such indebtedness until payment in full
so that the rate or amount of interest on account of such indebtedness does not
exceed the usury ceiling from time to time in effect and applicable to such
indebtedness for so long as such indebtedness is outstanding. To the extent
federal law permits Bank to contract for, charge or receive a greater amount of
interest, Bank will rely on federal law instead of the Texas Finance Code, as
supplemented by Texas Credit Title, for the purpose of determining the Maximum
Rate. Additionally, to the maximum extent permitted by applicable law now or
hereafter in effect, Bank may, at its option and from time to time, implement
any other method of computing the Maximum Rate under the Texas Finance Code, as
supplemented by Texas Credit Title, or under other applicable law, by giving
notice, if required, to Borrower as provided by applicable law now or hereafter
in effect. Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, it is not the intention of Bank to accelerate the
maturity of any interest that has not accrued at the time of such acceleration
or to collect unearned interest at the time of such acceleration. In no event
shall Chapter 346 of the Texas Finance Code (which regulates certain revolving
loan accounts and revolving tri-party accounts) apply to this Note. To the
extent that Chapter 303 of the Texas Finance Code, is applicable to this Note,
the "weekly ceiling"
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specified in such Chapter 303 is the applicable ceiling; provided that, if any
applicable law permits greater interest, the law permitting the greatest
interest shall apply.
8. GOVERNING LAW AND VENUE. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF
AMERICA. BORROWER AGREES THAT THIS NOTE IS PERFORMABLE IN TARRANT COUNTY, TEXAS
AND THAT SUCH COUNTY IS PROPER VENUE FOR ANY ACTION OR PROCEEDING INVOLVING THIS
NOTE TO THE EXCLUSION OF ALL OTHER VENUES.
9. MISCELLANEOUS.
A. Notices or communications to be given under this Note shall be
given to the respective parties in writing as set forth in the Loan Agreement.
B. Time is of the essence of this Note.
C. This Note may not be changed or terminated orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, termination or discharge is sought.
D. This Note is secured, in part, by certain Pledge Agreements dated
the Effective Date and executed by Borrower and United Services Planning
Association to which reference is hereby made for a description of the
collateral, the nature and extent of the security, and the rights of the Bank in
respect thereof.
E. This Note and all the covenants, promises and agreements
contained herein shall be binding upon Borrower's successors, assigns, heirs and
personal representatives and inure to the benefit of Bank's successors and
assigns.
Effective September 30, 1998.
INDEPENDENT RESEARCH AGENCY FOR LIFE
INSURANCE, INC.
By: /s/ Lamar C. Smith
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Name: Lamar C. Smith
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Title: Chief Executive Officer
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NORWEST BANK TEXAS, N.A.
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT ("AGREEMENT") is made as of the 30th day of
September, 1998, by INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
(hereinafter called "PLEDGOR", whether one or more), in favor of NORWEST BANK
TEXAS, N.A. ("BANK"). Pledgor hereby agrees with Bank as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings indicated below:
"BORROWER" means Pledgor.
"CODE" means the Uniform Commercial Code as in effect in the State of
Texas on the date of this Agreement or as it may hereafter be amended from
time to time.
"COLLATERAL" means all property specifically described on SCHEDULE "A"
attached hereto and made a part hereof. Collateral, as used herein, shall
also include (i) all certificates, instruments and/or other documents
evidencing the foregoing, (ii) all renewals, replacements and substitutions
of all of the foregoing, (iii) all Additional Property (as hereinafter
defined), and (iv) all PRODUCTS and PROCEEDS of all of the foregoing. The
designation of proceeds does not authorize Pledgor to sell, transfer or
otherwise convey any of the foregoing property. The delivery at any time
by Pledgor to Secured Party of any property as a pledge to secure payment
or performance of any indebtedness or obligation whatsoever shall also
constitute a pledge of such property as Collateral hereunder.
"INDEBTEDNESS" means (a) the Promissory Note dated September 30, 1998,
in the original principal amount of $16,000,000.00, executed by Borrower
and payable to the order of Bank, (b) all accrued but unpaid interest on
any of the indebtedness described in (a) above, (c) all obligations owing
to Secured Party under any documents evidencing, securing, governing and/or
pertaining to all or any part of the indebtedness described in (a) and (b)
above, (d) all costs and expenses incurred by Secured Party in connection
with the collection of all or any part of the indebtedness and obligations
described in (a), (b) and (c) above or the protection or preservation of,
or realization upon, the collateral securing all or any part of such
indebtedness and obligations, including without limitation all reasonable
attorneys' fees, and (v) all renewals, extensions, modifications and
rearrangements of the indebtedness and obligations described in (a), (b),
(c) and (d) above.
"LOAN AGREEMENT" means the Loan Agreement dated the Effective Date,
between Bank and Borrower, as such may be amended and/or superseded from
time to time.
"LOAN DOCUMENTS" has the meaning assigned to such term in the Loan
Agreement.
"OBLIGATED PARTY" means any party other than Borrower who secures,
guarantees and/or is otherwise obligated to pay all or any portion of the
Indebtedness.
All words and phrases used herein which are expressly defined in Section 1.201,
Chapter 8 or Chapter 9 of the Code shall have the meaning provided for therein.
Other words and phrases defined elsewhere in the Code shall have the meaning
specified therein except to the extent such meaning is inconsistent with a
definition in Section 1.201, Chapter 8 or Chapter 9 of the Code.
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2. SECURITY INTEREST. As security for the Indebtedness, Pledgor, for
value received, hereby grants to Bank a continuing security interest in the
Collateral.
3. ADDITIONAL PROPERTY. Collateral shall also include the following
property (collectively, the "ADDITIONAL PROPERTY") which Pledgor becomes
entitled to receive or shall receive in connection with any other Collateral:
(a) any stock certificate, including without limitation, any certificate
representing a stock dividend or any certificate in connection with any
recapitalization, reclassification, merger, consolidation, conversion, sale of
assets, combination of shares, stock split or spin-off; (b) any option, warrant,
subscription or right, whether as an addition to or in substitution of any other
Collateral; (c) any dividends or distributions of any kind whatsoever, whether
distributable in cash, stock or other property; (d) any interest, premium or
principal payments; and (e) any conversion or redemption proceeds; provided,
however, that so long as no Event of Default (as hereinafter defined) has
occurred which is then continuing, Pledgor shall be entitled to all cash
dividends and all interest paid on the Collateral (except interest paid on any
certificate of deposit pledged hereunder) free of the security interest created
under this Agreement. All Additional Property received by Pledgor shall be
received in trust for the benefit of Bank. All Additional Property and all
certificates or other written instruments or documents evidencing and/or
representing the Additional Property that is received by Pledgor, together with
such instruments of transfer as Bank may request, shall immediately be delivered
to or deposited with Bank and held by Bank as Collateral under the terms of this
Agreement.
4. INTENTIONALLY OMITTED.
5. MAINTENANCE OF COLLATERAL. Bank does not have any obligation, duty or
responsibility with respect to the Collateral. Without limiting the generality
of the foregoing, Bank shall not have any obligation, duty or responsibility to
do any of the following: (a) ascertain any maturities, calls, conversions,
exchanges, offers, tenders or similar matters relating to the Collateral or
informing Pledgor with respect to any such matters; (b) fix, preserve or
exercise any right, privilege or option (whether conversion, redemption or
otherwise) with respect to the Collateral unless (i) Pledgor makes written
demand to Bank to do so, (ii) such written demand is received by Bank in
sufficient time to permit Bank to take the action demanded in the ordinary
course of its business, and (iii) Pledgor provides additional collateral,
acceptable to Bank in its sole discretion; (c) collect any amounts payable in
respect of the Collateral (Bank being liable to account to Pledgor only for what
Bank may actually receive or collect thereon); (d) sell all or any portion of
the Collateral to avoid market loss; (e) sell all or any portion of the
Collateral unless and until (i) Pledgor makes written demand upon Bank to sell
the Collateral, and (ii) Pledgor provides additional collateral, acceptable to
Bank in its sole discretion; or (f) hold the Collateral for or on behalf of any
party other than Pledgor.
6. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and
warrants the following to Bank:
(a) INTENTIONALLY OMITTED.
(b) INTENTIONALLY OMITTED.
(c) OWNERSHIP AND LIENS. Pledgor has good and marketable title to
the Collateral free and clear of all liens, security interests,
encumbrances or adverse claims, except for the security interest created by
this Agreement. No dispute, right of setoff, counterclaim or defense
exists with respect to all or any part of the Collateral. Pledgor has not
executed any other security agreement currently affecting the Collateral
and no financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any recording office except
as may have been executed or filed in favor of Bank.
(d) INTENTIONALLY OMITTED.
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(e) SECURITY INTEREST. Pledgor has and will have at all times full
right, power and authority to grant a security interest in the Collateral
to Bank in the manner provided herein, free and clear of any lien, security
interest or other charge or encumbrance. This Agreement creates a legal,
valid and binding security interest in favor of Bank in the Collateral.
(f) INTENTIONALLY OMITTED.
(g) INTENTIONALLY OMITTED.
(h) INTENTIONALLY OMITTED.
7. AFFIRMATIVE COVENANTS. Pledgor will comply with the covenants
contained in this Section at all times during the period of time this Agreement
is effective unless Bank shall otherwise consent in writing.
(a) OWNERSHIP AND LIENS. Pledgor will maintain good and marketable
title to all Collateral free and clear of all liens, security interests,
encumbrances or adverse claims, except for the security interest created by
this Agreement and the security interests and other encumbrances expressly
permitted by the other Loan Documents. Pledgor will not permit any
dispute, right of setoff, counterclaim or defense to exist with respect to
all or any part of the Collateral. Pledgor will cause any financing
statement or other security instrument with respect to the Collateral to be
terminated, except as may exist or as may have been filed in favor of Bank.
Pledgor will defend at its expense Bank's right, title and security
interest in and to the Collateral against the claims of any third party.
(b) INTENTIONALLY OMITTED.
(c) ADVERSE CLAIM. Pledgor covenants and agrees to promptly notify
Bank of any claim, action or proceeding affecting title to the Collateral,
or any part thereof, or the security interest created hereunder and, at
Pledgor's expense, defend Bank's security interest in the Collateral
against the claims of any third party. Pledgor also covenants and agrees
during the continuance of any Event of Default to promptly deliver to Bank
a copy of all written notices received by Pledgor with respect to the
Collateral, including without limitation, notices received from the issuer
of any securities pledged hereunder as Collateral.
(d) INTENTIONALLY OMITTED.
(e) FURTHER ASSURANCES. Pledgor will contemporaneously with the
execution hereof and from time to time thereafter at its expense promptly
execute and deliver all further instruments and documents and take all
further action necessary or appropriate or that Bank may reasonably
request in order (i) to perfect and protect the security interest created
or purported to be created hereby and the first priority of such security
interest, (ii) to enable Bank to exercise and enforce its rights and
remedies hereunder in respect of the Collateral, and (iii) to otherwise
effect the purposes of this Agreement, including without limitation: (A)
executing and filing any financing or continuation statements, or any
amendments thereto; (B) obtaining written confirmation from the issuer of
any securities pledged as Collateral of the pledge of such securities, in
form and substance reasonably satisfactory to Bank; (C) cooperating with
Bank in registering the pledge of any securities pledged as Collateral with
the issuer of such securities; (D) delivering notice of Bank's security
interest in any securities pledged as Collateral to any securities or
financial intermediary, clearing corporation or other party required by
Bank, in form and substance reasonably satisfactory to Bank; and (E)
obtaining written confirmation of the pledge of any securities constituting
Collateral from any securities or financial intermediary, clearing
corporation or other party required by Bank, in form and substance
reasonably satisfactory to Bank. If all or any part of the Collateral is
securities issued by an agency or
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department of the United States, Pledgor covenants and agrees, at Bank's
request, to cooperate in registering such securities in Bank's name or with
Bank's account maintained with a Federal Reserve Bank.
8. NEGATIVE COVENANTS. Pledgor will comply with the covenants contained
in this Section at all times during the period of time this Agreement is
effective, unless Bank shall otherwise consent in writing.
(a) TRANSFER OR ENCUMBRANCE. Pledgor will not (i) sell, assign (by
operation of law or otherwise) or transfer Pledgor's rights in any of the
Collateral, (ii) grant a lien or security interest in or execute, file or
record any financing statement or other security instrument with respect to
the Collateral to any party other than Bank, or (iii) deliver actual or
constructive possession of any certificate, instrument or document
evidencing and/or representing any of the Collateral to any party other
than Bank.
(b) IMPAIRMENT OF SECURITY INTEREST. Pledgor will not take or fail
to take any action which would in any manner impair the value or
enforceability of Bank's security interest in any Collateral.
(c) INTENTIONALLY OMITTED.
(d) INTENTIONALLY OMITTED.
9. RIGHTS OF BANK. Bank shall have the rights contained in this Section
at all times during the period of time this Agreement is effective.
(a) POWER OF ATTORNEY. Pledgor hereby irrevocably appoints Bank as
Pledgor's attorney-in-fact, such power of attorney being coupled with an
interest, with full authority in the place and stead of Pledgor and in the
name of Pledgor or otherwise, to take any action and to execute any
instrument which Bank may from time to time in Bank's reasonable discretion
deem necessary or appropriate during the continuance of any Event of
Default to accomplish the purposes of this Agreement, including without
limitation, the following action: (i) transfer any securities,
instruments, documents or certificates pledged as Collateral in the name of
Bank or its nominee; (ii) use any interest, premium or principal payments,
conversion or redemption proceeds or other cash proceeds received in
connection with any Collateral to reduce any of the Indebtedness; (iii)
exchange any of the securities pledged as Collateral for any other property
upon any merger, consolidation, reorganization, recapitalization or other
readjustment of the issuer thereof, and, in connection therewith, to
deposit and deliver any and all of such securities with any committee,
depository, transfer agent, registrar or other designated agent upon such
terms and conditions as Bank may deem necessary or appropriate; (iv)
exercise or comply with any conversion, exchange, redemption, subscription
or any other right, privilege or option pertaining to any securities
pledged as Collateral; provided, however, except as provided herein, Bank
shall not have a duty to exercise or comply with any such right, privilege
or option (whether conversion, redemption or otherwise) and shall not be
responsible for any delay or failure to do so; and (v) file any claims or
take any action or institute any proceedings which Bank may deem necessary
or appropriate for the collection and/or preservation of the Collateral or
otherwise to enforce the rights of Bank with respect to the Collateral.
(b) PERFORMANCE BY BANK. If Pledgor fails to perform any agreement
or obligation provided herein, Bank may itself perform, or cause
performance of, such agreement or obligation, and the reasonable expenses
of Bank incurred in connection therewith shall be a part of the
Indebtedness, secured by the Collateral and payable by Pledgor on demand.
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Notwithstanding any other provision herein to the contrary, Bank does not have
any duty to exercise or continue to exercise any of the foregoing rights and
shall not be responsible for any failure to do so or for any delay in doing so.
10. EVENTS OF DEFAULT. Each of the following constitutes an "EVENT OF
DEFAULT" under this Agreement:
(a) INTENTIONALLY OMITTED.
(b) NON-PERFORMANCE OF COVENANTS. The failure of Borrower or any
Obligated Party to timely and properly observe, keep or perform any
covenant, agreement, warranty or condition required herein and such failure
continues for more than thirty (30) days after written notice thereof shall
have been given by Bank to Borrower; provided, however, Bank is not
obligated to provide more than three (3) such notices during any twelve
(12) month period; or
(c) DEFAULT UNDER LOAN AGREEMENT. The occurrence of a Default under
the Loan Agreement.
(d) INTENTIONALLY OMITTED.
(e) INTENTIONALLY OMITTED.
(f) INTENTIONALLY OMITTED.
(g) EXECUTION ON COLLATERAL. The Collateral or any portion thereof
is taken on execution or other process of law in any action against
Pledgor; or
(h) INTENTIONALLY OMITTED.
(i) INTENTIONALLY OMITTED.
(j) INTENTIONALLY OMITTED.
(k) INTENTIONALLY OMITTED.
(l) BANKRUPTCY OF ISSUER. (i) The issuer of any securities
constituting Collateral files a petition for relief under any Applicable
Bankruptcy Law, (ii) an involuntary petition for relief is filed against
any such issuer under any Applicable Bankruptcy Law and such involuntary
petition is not dismissed within thirty (30) days after the filing thereof,
or (iii) an order for relief naming any such issuer is entered under any
Applicable Bankruptcy Law.
11. REMEDIES AND RELATED RIGHTS. If an Event of Default shall have
occurred and be continuing, and without limiting any other rights and remedies
provided herein, under any of the other Loan Documents or otherwise available to
Bank, Bank may exercise one or more of the rights and remedies provided in this
Section.
(a) REMEDIES. Bank may from time to time at its discretion, without
limitation and without notice except as expressly provided in any of the
Loan Documents:
(i) exercise in respect of the Collateral all the rights and
remedies of a secured party under the Code (whether or not the Code
applies to the affected Collateral);
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(ii) reduce its claim to judgment or foreclose or otherwise
enforce, in whole or in part, the security interest granted hereunder
by any available judicial procedure;
(iii) sell or otherwise dispose of, at its office, on the premises
of Pledgor or elsewhere, the Collateral, as a unit or in parcels, by
public or private proceedings, and by way of one or more contracts (it
being agreed that the sale or other disposition of any part of the
Collateral shall not exhaust Bank's power of sale, but sales or other
dispositions may be made from time to time until all of the Collateral
has been sold or disposed of or until the Indebtedness has been paid
and performed in full), and at any such sale or other disposition it
shall not be necessary to exhibit any of the Collateral;
(iv) buy the Collateral, or any portion thereof, at any public
sale;
(v) buy the Collateral, or any portion thereof, at any private
sale if the Collateral is of a type customarily sold in a recognized
market or is of a type which is the subject of widely distributed
standard price quotations;
(vi) apply for the appointment of a receiver for the Collateral,
and Pledgor hereby consents to any such appointment; and
(vii) at its option, retain the Collateral in satisfaction of the
Indebtedness whenever the circumstances are such that Bank is entitled
to do so under the Code or otherwise.
Pledgor agrees that in the event Pledgor is entitled to receive any notice
under the Uniform Commercial Code, as it exists in the state governing any
such notice, of the sale or other disposition of any Collateral, reasonable
notice shall be deemed given when such notice is deposited in a depository
receptacle under the care and custody of the United States Postal Service,
postage prepaid, at Pledgor's address set forth on the signature page
hereof, ten (10) days prior to the date of any public sale, or after which
a private sale, of any of such Collateral is to be held. Bank shall not be
obligated to make any sale of Collateral regardless of notice of sale
having been given. Bank may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was
so adjourned. Pledgor further acknowledges and agrees that the redemption
by Bank of any certificate of deposit pledged as Collateral shall be deemed
to be a commercially reasonable disposition under Section 9.504(c) of the
Code.
(b) PRIVATE SALE OF SECURITIES. Pledgor recognizes that Bank may be
unable to effect a public sale of all or any part of the securities pledged
as Collateral because of restrictions in applicable federal and state
securities laws and that Bank may, therefore, determine to make one or more
private sales of any such securities to a restricted group of purchasers
who will be obligated to agree, among other things, to acquire such
securities for their own account, for investment and not with a view to the
distribution or resale thereof. Pledgor acknowledges that each any such
private sale may be at prices and other terms less favorable then what
might have been obtained at a public sale and, notwithstanding the
foregoing, agrees that each such private sale shall be deemed to have been
made in a commercially reasonable manner and that Bank shall have no
obligation to delay the sale of any such securities for the period of time
necessary to permit the issuer to register such securities for public sale
under any federal or state securities laws. Pledgor further acknowledges
and agrees that any offer to sell such securities which has been made
privately in the manner described above to not less than five (5) BONA FIDE
offerees shall be deemed to involve a "public sale" for the purposes of
Section 9.504(c) of the Code, notwithstanding that such sale may not
constitute a "public offering" under any federal or state securities laws
and that Bank may, in such event, bid for the purchase of such securities.
6
<PAGE>
(c) APPLICATION OF PROCEEDS. If any Event of Default shall have
occurred and be continuing, Bank may at its discretion apply or use any
cash held by Bank as Collateral, and any cash proceeds received by Bank in
respect of any sale or other disposition of, collection from, or other
realization upon, all or any part of the Collateral as follows in such
order and manner as Bank may elect:
(i) to the repayment or reimbursement of the reasonable costs
and expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred by Bank in connection with (A) the
custody, preservation, use or operation of, or the sale of, collection
from, or other realization upon, the Collateral, and (B) the exercise
or enforcement of any of the rights and remedies of Bank hereunder;
(ii) to the payment or other satisfaction of any liens and other
encumbrances upon the Collateral;
(iii) to the satisfaction of the Indebtedness;
(iv) by holding such cash and proceeds as Collateral;
(v) to the payment of any other amounts required by applicable
law (including without limitation, Section 9.504(a)(3) of the Code or
any other applicable statutory provision); and
(vi) by delivery to Pledgor or any other party lawfully entitled
to receive such cash or proceeds whether by direction of a court of
competent jurisdiction or otherwise.
(d) DEFICIENCY. In the event that the proceeds of any sale of,
collection from, or other realization upon, all or any part of the
Collateral by Bank are insufficient to pay all amounts to which Bank is
legally entitled, Borrower and any party who guaranteed or is otherwise
obligated to pay all or any portion of the Indebtedness shall be liable for
the deficiency, together with interest thereon as provided in the Loan
Documents.
(e) NON-JUDICIAL REMEDIES. In granting to Bank the power to enforce
its rights hereunder without prior judicial process or judicial hearing,
Pledgor expressly waives, renounces and knowingly relinquishes any legal
right which might otherwise require Bank to enforce its rights by judicial
process. Pledgor recognizes and concedes that non-judicial remedies are
consistent with the usage of trade, are responsive to commercial necessity
and are the result of a bargain at arm's length. Nothing herein is
intended to prevent Bank or Pledgor from resorting to judicial process at
either party's option.
(f) OTHER RECOURSE. Pledgor waives any right to require Bank to
proceed against any third party, exhaust any Collateral or other security
for the Indebtedness, or to have any third party joined with Pledgor in any
suit arising out of the Indebtedness or any of the Loan Documents, or
pursue any other remedy available to Bank. Pledgor further waives any and
all notice of acceptance of this Agreement and of the creation,
modification, rearrangement, renewal or extension of the Indebtedness.
Pledgor further waives any defense arising by reason of any disability or
other defense of any third party or by reason of the cessation from any
cause whatsoever of the liability of any third party. Until all of the
Indebtedness shall have been paid in full, Pledgor shall have no right of
subrogation and Pledgor waives the right to enforce any remedy which Bank
has or may hereafter have against any third party, and waives any benefit
of and any right to participate in any other security whatsoever now or
hereafter held by Bank. Pledgor authorizes Bank, and without notice or
demand and without any reservation of rights against Pledgor and without
affecting Pledgor's liability hereunder or on the Indebtedness, to (i) take
or hold any other property of any type from any third party as security for
the Indebtedness,
7
<PAGE>
and exchange, enforce, waive and release any or all of such other property,
(ii) apply such other property and direct the order or manner of sale
thereof as Bank may in its discretion determine, (iii) renew, extend,
accelerate, modify, compromise, settle or release any of the Indebtedness
or other security for the Indebtedness, (iv) waive, enforce or modify any
of the provisions of any of the Loan Documents executed by any third party,
and (v) release or substitute any third party.
(g) VOTING RIGHTS. During the continuance of an Event of Default,
Pledgor will not exercise any voting rights with respect to securities
pledged as Collateral. Pledgor hereby irrevocably appoints Bank as
Pledgor's attorney-in-fact (such power of attorney being coupled with an
interest) and proxy to exercise any voting rights with respect to Pledgor's
securities pledged as Collateral during the continuance of an Event of
Default.
(h) DIVIDEND RIGHTS AND INTEREST PAYMENTS. During the continuance of
an Event of Default:
(i) all rights of Pledgor to receive and retain the dividends
and interest payments which it would otherwise be authorized to
receive and retain pursuant to Section 3 shall automatically cease,
and all such rights shall thereupon become vested with Bank which
shall thereafter have the sole right to receive, hold and apply as
Collateral such dividends and interest payments; and
(ii) all dividend and interest payments which are received by
Pledgor contrary to the provisions of clause (i) of this Subsection
shall be received in trust for the benefit of Bank, shall be
segregated from other funds of Pledgor, and shall be forthwith paid
over to Bank in the exact form received (properly endorsed or assigned
if requested by Bank), to be held by Bank as Collateral.
(i) BANKRUPTCY. IN THE EVENT THAT DEBTOR IS THE SUBJECT OF ANY
INSOLVENCY, BANKRUPTCY, RECEIVERSHIP, DISSOLUTION, REORGANIZATION OR
SIMILAR PROCEEDING, FEDERAL OR STATE, VOLUNTARY OR INVOLUNTARY, UNDER ANY
PRESENT OR FUTURE LAW OR ACT, BANK IS ENTITLED TO THE AUTOMATIC AND
ABSOLUTE LIFTING OF ANY AUTOMATIC STAY AS TO THE ENFORCEMENT OF ITS
REMEDIES UNDER THE LOAN DOCUMENTS AGAINST THE COLLATERAL INCLUDING
SPECIFICALLY, BUT NOT LIMITED TO THE STAY IMPOSED BY SECTION 362 OF THE
UNITED STATES FEDERAL BANKRUPTCY CODE, AS AMENDED. DEBTOR HEREBY CONSENTS
TO THE IMMEDIATE LIFTING OF ANY SUCH AUTOMATIC STAY, AND WILL NOT CONTEST
ANY MOTION BY BANK TO LIFT SUCH STAY. DEBTOR EXPRESSLY ACKNOWLEDGES THAT
(a) THERE IS NO EQUITY IN THE COLLATERAL AFTER CONSIDERATION OF THE AMOUNT
OWED BANK, AND (b) THE COLLATERAL IS NOT NOW, AND WILL NEVER BE NECESSARY
TO ANY PLAN OF REORGANIZATION OF ANY TYPE.
12. INDEMNITY. Pledgor hereby indemnifies and agrees to hold harmless
Bank, and its officers, directors, employees, agents and representatives (each
an "Indemnified Person") from and against any and all liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature (collectively, the "Claims") which may be
imposed on, incurred by, or asserted against, any Indemnified Person arising in
connection with the Loan Documents, the Indebtedness or the Collateral
(including without limitation, the enforcement of the Loan Documents and the
defense of any Indemnified Person's actions and/or inactions in connection with
the Loan Documents); provided, however, that no Indemnified Person will be
indemnified hereunder for such Indemnified Person's negligence or willful
misconduct. The indemnification provided for in this Section shall survive the
termination of this Agreement and shall extend and continue to benefit each
individual or entity who is or has at any time been an Indemnified Person
hereunder.
8
<PAGE>
13. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire agreement
of Bank and Pledgor with respect to the Collateral. If the parties hereto
are parties to any prior agreement, either written or oral, relating to the
Collateral, the terms of this Agreement shall amend and supersede the terms
of such prior agreements as to transactions on or after the effective
date of this Agreement, but all security agreements, financing statements,
guaranties, other contracts and notices for the benefit of Bank shall
continue in full force and effect to secure the Indebtedness unless Bank
specifically releases its rights thereunder by separate release.
(b) AMENDMENT. No modification, consent or amendment of any
provision of this Agreement or any of the other Loan Documents shall be
valid or effective unless the same is in writing and signed by the party
against whom it is sought to be enforced.
(c) ACTIONS BY BANK. The lien, security interest and other security
rights of Bank hereunder shall not be impaired by (i) any renewal,
extension, increase or modification with respect to the Indebtedness, (ii)
any surrender, compromise, release, renewal, extension, exchange or
substitution which Bank may grant with respect to the Collateral, or (iii)
any release or indulgence granted to any endorser, guarantor or surety of
the Indebtedness. The taking of additional security by Bank shall not
release or impair the lien, security interest or other security rights of
Bank hereunder or affect the obligations of Pledgor hereunder.
(d) WAIVER BY BANK. Bank may waive any Event of Default without
waiving any other prior or subsequent Event of Default. Bank may remedy
any default without waiving the Event of Default remedied. Neither the
failure by Bank to exercise, nor the delay by Bank in exercising, any right
or remedy upon any Event of Default shall be construed as a waiver of such
Event of Default or as a waiver of the right to exercise any such right or
remedy at a later date. No single or partial exercise by Bank of any right
or remedy hereunder shall exhaust the same or shall preclude any other or
further exercise thereof, and every such right or remedy hereunder may be
exercised at any time. No waiver of any provision hereof or consent to any
departure by Pledgor therefrom shall be effective unless the same shall be
in writing and signed by Bank and then such waiver or consent shall be
effective only in the specific instances, for the purpose for which given
and to the extent therein specified. No notice to or demand on Pledgor in
any case shall of itself entitle Pledgor to any other or further notice or
demand in similar or other circumstances.
(e) COSTS AND EXPENSES. Pledgor will upon demand pay to Bank the
amount of any and all reasonable costs and expenses (including without
limitation, reasonable attorneys' fees and expenses), which Bank may incur
in connection with (i) the preparation of this Agreement and the perfection
and preservation of the security interests granted under the Loan
Documents, (ii) the custody, preservation, use or operation of, or the
sale of, collection from, or other realization upon, the Collateral, (iii)
the exercise or enforcement of any of the rights of Bank under the Loan
Documents, or (iv) the failure by Pledgor to perform or observe any of the
provisions hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL
LAWS, EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION OR
NON-PERFECTION OF THE SECURITY INTEREST GRANTED HEREUNDER, IN RESPECT OF
ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF TEXAS.
(g) VENUE. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE COUNTY IN
TEXAS WHERE BANK'S ADDRESS FOR NOTICE PURPOSES IS LOCATED, AND IT SHALL BE
PERFORMABLE FOR ALL PURPOSES IN SUCH COUNTY. COURTS WITHIN THE STATE OF
9
<PAGE>
TEXAS SHALL HAVE JURISDICTION OVER ANY AND ALL DISPUTES ARISING UNDER OR
PERTAINING TO THIS AGREEMENT AND VENUE FOR ANY SUCH DISPUTES SHALL BE IN
THE COUNTY OR JUDICIAL DISTRICT WHERE THIS AGREEMENT HAS BEEN EXECUTED AND
DELIVERED.
(h) SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable,
shall not impair or invalidate the remainder of this Agreement and the
effect thereof shall be confined to the provision held to be illegal,
invalid or unenforceable.
(i) NOTICES. All notices, requests, demands or other communications
required or permitted to be given pursuant to this Agreement shall be in
writing and given as set forth in the Loan Agreement.
(j) BINDING EFFECT AND ASSIGNMENT. This Agreement (i) creates a
continuing security interest in the Collateral, (ii) shall be binding on
Pledgor and the heirs, executors, administrators, personal representatives,
successors and assigns of Pledgor, and (iii) shall inure to the benefit of
Bank and its successors and assigns. Without limiting the generality of
the foregoing, Bank may pledge, assign or otherwise transfer the
Indebtedness and its rights under this Agreement and any of the other Loan
Documents to any other party. Pledgor's rights and obligations hereunder
may not be assigned or otherwise transferred without the prior written
consent of Bank.
(k) TERMINATION. It is contemplated by the parties hereto that from
time to time there may be no outstanding Indebtedness, but notwithstanding
such occurrences, this Agreement shall remain valid and shall be in full
force and effect as to subsequent outstanding Indebtedness. Upon (i) the
satisfaction in full of the Indebtedness, and (ii) the termination or
expiration of any commitment of Bank to extend credit to Borrower, this
Agreement and the security interests created hereby shall terminate. Upon
termination of this Agreement and Pledgor's written request, Bank will, at
Pledgor's sole cost and expense, return to Pledgor such of the Collateral
as shall not have been sold or otherwise disposed of or applied pursuant to
the terms hereof and execute and deliver to Pledgor such documents as
Pledgor shall reasonably request to evidence such termination. In
addition, Pledgor is entitled to one or more partial releases of Bank's
security interest in the Collateral pursuant to provisions in Section 3.1
of the Loan Agreement.
(l) CUMULATIVE RIGHTS. All rights and remedies of Bank hereunder are
cumulative of each other and of every other right or remedy which Bank may
otherwise have at law or in equity or under any of the other Loan
Documents, and the exercise of one or more of such rights or remedies shall
not prejudice or impair the concurrent or subsequent exercise of any other
rights or remedies.
(m) GENDER AND NUMBER. Within this Agreement, words of any gender
shall be held and construed to include the other gender, and words in the
singular number shall be held and construed to include the plural and words
in the plural number shall be held and construed to include the singular,
unless in each instance the context requires otherwise.
(n) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience only and shall in no way enlarge, limit or define the scope or
meaning of the various and several provisions hereof.
10
<PAGE>
EXECUTED as of the date first written above.
Pledgor's Address: PLEDGOR:
4100 South Hulen INDEPENDENT RESEARCH AGENCY
P.O. Box 2387 FOR LIFE INSURANCE, INC.
Fort Worth, Texas 76113
Attn: Chief Financial Officer
By: /s/ Lamar C. Smith
--------------------------
Name: Lamar C. Smith
------------------------
Title: Chief Executive Officer
------------------------
Bank's Address:
NORWEST BANK TEXAS, N.A.
By: /s/ Tom Pittman
-----------------------------
Name: Tom Pittman
---------------------------
Title: Senior Vice President
--------------------------
Address for mail delivery and notices:
777 West Rosedale Street
P.O. Box 1480
Fort Worth, Texas 76101-1480
11
<PAGE>
SCHEDULE "A"
TO
PLEDGE AGREEMENT
DATED SEPTEMBER 30, 1998
BY AND BETWEEN
NORWEST BANK TEXAS, N.A.
AND
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
The following property is a part of the Collateral as defined in Section 1:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
Mutual Fund Name Account # Shares
- ------------------------- ----------- ---------------
<S> <C> <C>
AIM Summit Mutual Fund 7029424545 343,764.247
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
Destiny I 7029163488-8 8,120.56
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
Destiny IIA 7010746901-1 27,314.691
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
</TABLE>
12
<PAGE>
NORWEST BANK TEXAS, N.A.
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT ("AGREEMENT") is made as of the 30th day of
September, 1998, by UNITED SERVICES PLANNING ASSOCIATION (hereinafter called
"PLEDGOR," whether one or more), in favor of NORWEST BANK TEXAS, N.A. ("BANK").
Pledgor hereby agrees with Bank as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings indicated below:
"BORROWER" means Independent Research Agency for Life Insurance, Inc.
"CODE" means the Uniform Commercial Code as in effect in the State of
Texas on the date of this Agreement or as it may hereafter be amended from
time to time.
"COLLATERAL" means all property specifically described on SCHEDULE "A"
attached hereto and made a part hereof. Collateral, as used herein, shall
also include (i) all certificates, instruments and/or other documents
evidencing the foregoing, (ii) all renewals, replacements and substitutions
of all of the foregoing, (iii) all Additional Property (as hereinafter
defined), and (iv) all PRODUCTS and PROCEEDS of all of the foregoing. The
designation of proceeds does not authorize Pledgor to sell, transfer or
otherwise convey any of the foregoing property. The delivery at any time
by Pledgor to Secured Party of any property as a pledge to secure payment
or performance of any indebtedness or obligation whatsoever shall also
constitute a pledge of such property as Collateral hereunder.
"INDEBTEDNESS" means (a) the Promissory Note dated September 30, 1998,
in the original principal amount of $16,000,000.00, executed by Borrower
and payable to the order of Bank, (b) all accrued but unpaid interest on
any of the indebtedness described in (a) above, (c) all obligations owing
to Secured Party under any documents evidencing, securing, governing and/or
pertaining to all or any part of the indebtedness described in (a) and (b)
above, (d) all costs and expenses incurred by Secured Party in connection
with the collection of all or any part of the indebtedness and obligations
described in (a), (b) and (c) above or the protection or preservation of,
or realization upon, the collateral securing all or any part of such
indebtedness and obligations, including without limitation all reasonable
attorneys' fees, and (v) all renewals, extensions, modifications and
rearrangements of the indebtedness and obligations described in (a), (b),
(c) and (d) above.
"LOAN AGREEMENT" means the Loan Agreement dated the Effective Date,
between Bank and Borrower, as such may be amended and/or superseded from
time to time.
"LOAN DOCUMENTS" has the meaning assigned to such term in the Loan
Agreement.
"OBLIGATED PARTY" means any party other than Borrower who secures,
guarantees and/or is otherwise obligated to pay all or any portion of the
Indebtedness.
All words and phrases used herein which are expressly defined in Section 1.201,
Chapter 8 or Chapter 9 of the Code shall have the meaning provided for therein.
Other words and phrases defined elsewhere in the Code shall have the meaning
specified therein except to the extent such meaning is inconsistent with a
definition in Section 1.201, Chapter 8 or Chapter 9 of the Code.
2. SECURITY INTEREST. As security for the Indebtedness, Pledgor, for
value received, hereby grants to Bank a continuing security interest in the
Collateral.
1
<PAGE>
3. ADDITIONAL PROPERTY. Collateral shall also include the following
property (collectively, the "ADDITIONAL PROPERTY") which Pledgor becomes
entitled to receive or shall receive in connection with any other Collateral:
(a) any stock certificate, including without limitation, any certificate
representing a stock dividend or any certificate in connection with any
recapitalization, reclassification, merger, consolidation, conversion, sale of
assets, combination of shares, stock split or spin-off; (b) any option, warrant,
subscription or right, whether as an addition to or in substitution of any other
Collateral; (c) any dividends or distributions of any kind whatsoever, whether
distributable in cash, stock or other property; (d) any interest, premium or
principal payments; and (e) any conversion or redemption proceeds; provided,
however, that so long as no Event of Default (as hereinafter defined) has
occurred which is then continuing, Pledgor shall be entitled to all cash
dividends and all interest paid on the Collateral (except interest paid on any
certificate of deposit pledged hereunder) free of the security interest created
under this Agreement. All Additional Property received by Pledgor shall be
received in trust for the benefit of Bank. All Additional Property and all
certificates or other written instruments or documents evidencing and/or
representing the Additional Property that is received by Pledgor, together with
such instruments of transfer as Bank may request, shall immediately be delivered
to or deposited with Bank and held by Bank as Collateral under the terms of this
Agreement.
4. INTENTIONALLY OMITTED.
5. MAINTENANCE OF COLLATERAL. Bank does not have any obligation, duty or
responsibility with respect to the Collateral. Without limiting the generality
of the foregoing, Bank shall not have any obligation, duty or responsibility to
do any of the following: (a) ascertain any maturities, calls, conversions,
exchanges, offers, tenders or similar matters relating to the Collateral or
informing Pledgor with respect to any such matters; (b) fix, preserve or
exercise any right, privilege or option (whether conversion, redemption or
otherwise) with respect to the Collateral unless (i) Pledgor makes written
demand to Bank to do so, (ii) such written demand is received by Bank in
sufficient time to permit Bank to take the action demanded in the ordinary
course of its business, and (iii) Pledgor provides additional collateral,
acceptable to Bank in its sole discretion; (c) collect any amounts payable in
respect of the Collateral (Bank being liable to account to Pledgor only for what
Bank may actually receive or collect thereon); (d) sell all or any portion of
the Collateral to avoid market loss; (e) sell all or any portion of the
Collateral unless and until (i) Pledgor makes written demand upon Bank to sell
the Collateral, and (ii) Pledgor provides additional collateral, acceptable to
Bank in its sole discretion; or (f) hold the Collateral for or on behalf of any
party other than Pledgor.
6. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and
warrants the following to Bank:
(a) INTENTIONALLY OMITTED.
(b) INTENTIONALLY OMITTED.
(c) OWNERSHIP AND LIENS. Pledgor has good and marketable title to
the Collateral free and clear of all liens, security interests,
encumbrances or adverse claims, except for the security interest created by
this Agreement. No dispute, right of setoff, counterclaim or defense
exists with respect to all or any part of the Collateral. Pledgor has not
executed any other security agreement currently affecting the Collateral
and no financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any recording office except
as may have been executed or filed in favor of Bank.
(d) INTENTIONALLY OMITTED.
(e) SECURITY INTEREST. Pledgor has and will have at all times full
right, power and authority to grant a security interest in the Collateral
to Bank in the manner provided herein, free
2
<PAGE>
and clear of any lien, security interest or other charge or encumbrance.
This Agreement creates a legal, valid and binding security interest in
favor of Bank in the Collateral.
(f) INTENTIONALLY OMITTED.
(g) INTENTIONALLY OMITTED.
(h) INTENTIONALLY OMITTED.
7. AFFIRMATIVE COVENANTS. Pledgor will comply with the covenants
contained in this Section at all times during the period of time this Agreement
is effective unless Bank shall otherwise consent in writing.
(a) OWNERSHIP AND LIENS. Pledgor will maintain good and marketable
title to all Collateral free and clear of all liens, security interests,
encumbrances or adverse claims, except for the security interest created by
this Agreement and the security interests and other encumbrances expressly
permitted by the other Loan Documents. Pledgor will not permit any
dispute, right of setoff, counterclaim or defense to exist with respect to
all or any part of the Collateral. Pledgor will cause any financing
statement or other security instrument with respect to the Collateral to be
terminated, except as may exist or as may have been filed in favor of Bank.
Pledgor will defend at its expense Bank's right, title and security
interest in and to the Collateral against the claims of any third party.
(b) INTENTIONALLY OMITTED.
(c) ADVERSE CLAIM. Pledgor covenants and agrees to promptly notify
Bank of any claim, action or proceeding affecting title to the Collateral,
or any part thereof, or the security interest created hereunder and, at
Pledgor's expense, defend Bank's security interest in the Collateral
against the claims of any third party. Pledgor also covenants and agrees
during the continuance of any Event of Default to promptly deliver to Bank
a copy of all written notices received by Pledgor with respect to the
Collateral, including without limitation, notices received from the issuer
of any securities pledged hereunder as Collateral.
(d) INTENTIONALLY OMITTED.
(e) FURTHER ASSURANCES. Pledgor will contemporaneously with the
execution hereof and from time to time thereafter at its expense promptly
execute and deliver all further instruments and documents and take all
further action necessary or appropriate or that Bank may reasonably
request in order (i) to perfect and protect the security interest created
or purported to be created hereby and the first priority of such security
interest, (ii) to enable Bank to exercise and enforce its rights and
remedies hereunder in respect of the Collateral, and (iii) to otherwise
effect the purposes of this Agreement, including without limitation: (A)
executing and filing any financing or continuation statements, or any
amendments thereto; (B) obtaining written confirmation from the issuer of
any securities pledged as Collateral of the pledge of such securities, in
form and substance reasonably satisfactory to Bank; (C) cooperating with
Bank in registering the pledge of any securities pledged as Collateral with
the issuer of such securities; (D) delivering notice of Bank's security
interest in any securities pledged as Collateral to any securities or
financial intermediary, clearing corporation or other party required by
Bank, in form and substance reasonably satisfactory to Bank; and (E)
obtaining written confirmation of the pledge of any securities constituting
Collateral from any securities or financial intermediary, clearing
corporation or other party required by Bank, in form and substance
reasonably satisfactory to Bank. If all or any part of the Collateral is
securities issued by an agency or department of the United States, Pledgor
covenants and agrees, at Bank's request, to cooperate
3
<PAGE>
in registering such securities in Bank's name or with Bank's account
maintained with a Federal Reserve Bank.
8. NEGATIVE COVENANTS. Pledgor will comply with the covenants contained
in this Section at all times during the period of time this Agreement is
effective, unless Bank shall otherwise consent in writing.
(a) TRANSFER OR ENCUMBRANCE. Pledgor will not (i) sell, assign (by
operation of law or otherwise) or transfer Pledgor's rights in any of the
Collateral, (ii) grant a lien or security interest in or execute, file or
record any financing statement or other security instrument with respect to
the Collateral to any party other than Bank, or (iii) deliver actual or
constructive possession of any certificate, instrument or document
evidencing and/or representing any of the Collateral to any party other
than Bank.
(b) IMPAIRMENT OF SECURITY INTEREST. Pledgor will not take or fail
to take any action which would in any manner impair the value or
enforceability of Bank's security interest in any Collateral.
(c) INTENTIONALLY OMITTED.
(d) INTENTIONALLY OMITTED.
9. RIGHTS OF BANK. Bank shall have the rights contained in this Section
at all times during the period of time this Agreement is effective.
(a) POWER OF ATTORNEY. Pledgor hereby irrevocably appoints Bank as
Pledgor's attorney-in-fact, such power of attorney being coupled with an
interest, with full authority in the place and stead of Pledgor and in the
name of Pledgor or otherwise, to take any action and to execute any
instrument which Bank may from time to time in Bank's reasonable discretion
deem necessary or appropriate during the continuance of any Event of
Default to accomplish the purposes of this Agreement, including without
limitation, the following action: (i) transfer any securities,
instruments, documents or certificates pledged as Collateral in the name of
Bank or its nominee; (ii) use any interest, premium or principal payments,
conversion or redemption proceeds or other cash proceeds received in
connection with any Collateral to reduce any of the Indebtedness; (iii)
exchange any of the securities pledged as Collateral for any other property
upon any merger, consolidation, reorganization, recapitalization or other
readjustment of the issuer thereof, and, in connection therewith, to
deposit and deliver any and all of such securities with any committee,
depository, transfer agent, registrar or other designated agent upon such
terms and conditions as Bank may deem necessary or appropriate; (iv)
exercise or comply with any conversion, exchange, redemption, subscription
or any other right, privilege or option pertaining to any securities
pledged as Collateral; provided, however, except as provided herein, Bank
shall not have a duty to exercise or comply with any such right, privilege
or option (whether conversion, redemption or otherwise) and shall not be
responsible for any delay or failure to do so; and (v) file any claims or
take any action or institute any proceedings which Bank may deem necessary
or appropriate for the collection and/or preservation of the Collateral or
otherwise to enforce the rights of Bank with respect to the Collateral.
(b) PERFORMANCE BY BANK. If Pledgor fails to perform any agreement
or obligation provided herein, Bank may itself perform, or cause
performance of, such agreement or obligation, and the reasonable expenses
of Bank incurred in connection therewith shall be a part of the
Indebtedness, secured by the Collateral and payable by Pledgor on demand.
4
<PAGE>
Notwithstanding any other provision herein to the contrary, Bank does not
have any duty to exercise or continue to exercise any of the foregoing
rights and shall not be responsible for any failure to do so or for any
delay in doing so.
10. EVENTS OF DEFAULT. Each of the following constitutes an "EVENT OF
DEFAULT" under this Agreement:
(a) INTENTIONALLY OMITTED.
(b) NON-PERFORMANCE OF COVENANTS. The failure of Borrower or any
Obligated Party to timely and properly observe, keep or perform any
covenant, agreement, warranty or condition required herein and such failure
continues for more than thirty (30) days after written notice thereof shall
have been given by Bank to Borrower; provided, however, Bank is not
obligated to provide more than three (3) such notices during any twelve
(12) month period; or
(c) DEFAULT UNDER LOAN AGREEMENT. The occurrence of a Default under
the Loan Agreement.
(d) INTENTIONALLY OMITTED.
(e) INTENTIONALLY OMITTED.
(f) INTENTIONALLY OMITTED.
(g) EXECUTION ON COLLATERAL. The Collateral or any portion thereof
is taken on execution or other process of law in any action against
Pledgor; or
(h) INTENTIONALLY OMITTED.
(i) INTENTIONALLY OMITTED.
(j) INTENTIONALLY OMITTED.
(k) INTENTIONALLY OMITTED.
(l) BANKRUPTCY OF ISSUER. (i) The issuer of any securities
constituting Collateral files a petition for relief under any Applicable
Bankruptcy Law, (ii) an involuntary petition for relief is filed against
any such issuer under any Applicable Bankruptcy Law and such involuntary
petition is not dismissed within thirty (30) days after the filing thereof,
or (iii) an order for relief naming any such issuer is entered under any
Applicable Bankruptcy Law.
11. REMEDIES AND RELATED RIGHTS. If an Event of Default shall have
occurred and be continuing, and without limiting any other rights and remedies
provided herein, under any of the other Loan Documents or otherwise available to
Bank, Bank may exercise one or more of the rights and remedies provided in this
Section.
(a) REMEDIES. Bank may from time to time at its discretion, without
limitation and without notice except as expressly provided in any of the
Loan Documents:
(i) exercise in respect of the Collateral all the rights and
remedies of a secured party under the Code (whether or not the Code
applies to the affected Collateral);
5
<PAGE>
(ii) reduce its claim to judgment or foreclose or otherwise
enforce, in whole or in part, the security interest granted hereunder
by any available judicial procedure;
(iii) sell or otherwise dispose of, at its office, on the premises
of Pledgor or elsewhere, the Collateral, as a unit or in parcels, by
public or private proceedings, and by way of one or more contracts (it
being agreed that the sale or other disposition of any part of the
Collateral shall not exhaust Bank's power of sale, but sales or other
dispositions may be made from time to time until all of the Collateral
has been sold or disposed of or until the Indebtedness has been paid
and performed in full), and at any such sale or other disposition it
shall not be necessary to exhibit any of the Collateral;
(iv) buy the Collateral, or any portion thereof, at any public
sale;
(v) buy the Collateral, or any portion thereof, at any private
sale if the Collateral is of a type customarily sold in a recognized
market or is of a type which is the subject of widely distributed
standard price quotations;
(vi) apply for the appointment of a receiver for the Collateral,
and Pledgor hereby consents to any such appointment; and
(vii) at its option, retain the Collateral in satisfaction of the
Indebtedness whenever the circumstances are such that Bank is entitled
to do so under the Code or otherwise.
Pledgor agrees that in the event Pledgor is entitled to receive any notice
under the Uniform Commercial Code, as it exists in the state governing any
such notice, of the sale or other disposition of any Collateral, reasonable
notice shall be deemed given when such notice is deposited in a depository
receptacle under the care and custody of the United States Postal Service,
postage prepaid, at Pledgor's address set forth on the signature page
hereof, ten (10) days prior to the date of any public sale, or after which
a private sale, of any of such Collateral is to be held. Bank shall not be
obligated to make any sale of Collateral regardless of notice of sale
having been given. Bank may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was
so adjourned. Pledgor further acknowledges and agrees that the redemption
by Bank of any certificate of deposit pledged as Collateral shall be deemed
to be a commercially reasonable disposition under Section 9.504(c) of the
Code.
(b) PRIVATE SALE OF SECURITIES. Pledgor recognizes that Bank may be
unable to effect a public sale of all or any part of the securities pledged
as Collateral because of restrictions in applicable federal and state
securities laws and that Bank may, therefore, determine to make one or more
private sales of any such securities to a restricted group of purchasers
who will be obligated to agree, among other things, to acquire such
securities for their own account, for investment and not with a view to the
distribution or resale thereof. Pledgor acknowledges that each any such
private sale may be at prices and other terms less favorable then what
might have been obtained at a public sale and, notwithstanding the
foregoing, agrees that each such private sale shall be deemed to have been
made in a commercially reasonable manner and that Bank shall have no
obligation to delay the sale of any such securities for the period of time
necessary to permit the issuer to register such securities for public sale
under any federal or state securities laws. Pledgor further acknowledges
and agrees that any offer to sell such securities which has been made
privately in the manner described above to not less than five (5) BONA FIDE
offerees shall be deemed to involve a "public sale" for the purposes of
Section 9.504(c) of the Code, notwithstanding that such sale may not
constitute a "public offering" under any federal or state securities laws
and that Bank may, in such event, bid for the purchase of such securities.
6
<PAGE>
(c) APPLICATION OF PROCEEDS. If any Event of Default shall have
occurred and be continuing, Bank may at its discretion apply or use any
cash held by Bank as Collateral, and any cash proceeds received by Bank in
respect of any sale or other disposition of, collection from, or other
realization upon, all or any part of the Collateral as follows in such
order and manner as Bank may elect:
(i) to the repayment or reimbursement of the reasonable costs
and expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred by Bank in connection with (A) the
custody, preservation, use or operation of, or the sale of, collection
from, or other realization upon, the Collateral, and (B) the exercise
or enforcement of any of the rights and remedies of Bank hereunder;
(ii) to the payment or other satisfaction of any liens and other
encumbrances upon the Collateral;
(iii) to the satisfaction of the Indebtedness;
(iv) by holding such cash and proceeds as Collateral;
(v) to the payment of any other amounts required by applicable
law (including without limitation, Section 9.504(a)(3) of the Code or
any other applicable statutory provision); and
(vi) by delivery to Pledgor or any other party lawfully entitled
to receive such cash or proceeds whether by direction of a court of
competent jurisdiction or otherwise.
(d) DEFICIENCY. In the event that the proceeds of any sale of,
collection from, or other realization upon, all or any part of the
Collateral by Bank are insufficient to pay all amounts to which Bank is
legally entitled, Borrower and any party who guaranteed or is otherwise
obligated to pay all or any portion of the Indebtedness shall be liable for
the deficiency, together with interest thereon as provided in the Loan
Documents.
(e) NON-JUDICIAL REMEDIES. In granting to Bank the power to enforce
its rights hereunder without prior judicial process or judicial hearing,
Pledgor expressly waives, renounces and knowingly relinquishes any legal
right which might otherwise require Bank to enforce its rights by judicial
process. Pledgor recognizes and concedes that non-judicial remedies are
consistent with the usage of trade, are responsive to commercial necessity
and are the result of a bargain at arm's length. Nothing herein is
intended to prevent Bank or Pledgor from resorting to judicial process at
either party's option.
(f) OTHER RECOURSE. Pledgor waives any right to require Bank to
proceed against any third party, exhaust any Collateral or other security
for the Indebtedness, or to have any third party joined with Pledgor in any
suit arising out of the Indebtedness or any of the Loan Documents, or
pursue any other remedy available to Bank. Pledgor further waives any and
all notice of acceptance of this Agreement and of the creation,
modification, rearrangement, renewal or extension of the Indebtedness.
Pledgor further waives any defense arising by reason of any disability or
other defense of any third party or by reason of the cessation from any
cause whatsoever of the liability of any third party. Until all of the
Indebtedness shall have been paid in full, Pledgor shall have no right of
subrogation and Pledgor waives the right to enforce any remedy which Bank
has or may hereafter have against any third party, and waives any benefit
of and any right to participate in any other security whatsoever now or
hereafter held by Bank. Pledgor authorizes Bank, and without notice or
demand and without any reservation of rights against Pledgor and without
affecting Pledgor's liability hereunder or on the Indebtedness, to (i) take
or hold any other property of any type from any third party as security for
the Indebtedness,
7
<PAGE>
and exchange, enforce, waive and release any or all of such other property,
(ii) apply such other property and direct the order or manner of sale
thereof as Bank may in its discretion determine, (iii) renew, extend,
accelerate, modify, compromise, settle or release any of the Indebtedness
or other security for the Indebtedness, (iv) waive, enforce or modify any
of the provisions of any of the Loan Documents executed by any third party,
and (v) release or substitute any third party.
(g) VOTING RIGHTS. During the continuance of an Event of Default,
Pledgor will not exercise any voting rights with respect to securities
pledged as Collateral. Pledgor hereby irrevocably appoints Bank as
Pledgor's attorney-in-fact (such power of attorney being coupled with an
interest) and proxy to exercise any voting rights with respect to Pledgor's
securities pledged as Collateral during the continuance of an Event of
Default.
(h) DIVIDEND RIGHTS AND INTEREST PAYMENTS. During the continuance of
an Event of Default:
(i) all rights of Pledgor to receive and retain the dividends
and interest payments which it would otherwise be authorized to
receive and retain pursuant to Section 3 shall automatically cease,
and all such rights shall thereupon become vested with Bank which
shall thereafter have the sole right to receive, hold and apply as
Collateral such dividends and interest payments; and
(ii) all dividend and interest payments which are received by
Pledgor contrary to the provisions of clause (i) of this Subsection
shall be received in trust for the benefit of Bank, shall be
segregated from other funds of Pledgor, and shall be forthwith paid
over to Bank in the exact form received (properly endorsed or assigned
if requested by Bank), to be held by Bank as Collateral.
(i) BANKRUPTCY. IN THE EVENT THAT DEBTOR IS THE SUBJECT OF ANY
INSOLVENCY, BANKRUPTCY, RECEIVERSHIP, DISSOLUTION, REORGANIZATION OR
SIMILAR PROCEEDING, FEDERAL OR STATE, VOLUNTARY OR INVOLUNTARY, UNDER ANY
PRESENT OR FUTURE LAW OR ACT, BANK IS ENTITLED TO THE AUTOMATIC AND
ABSOLUTE LIFTING OF ANY AUTOMATIC STAY AS TO THE ENFORCEMENT OF ITS
REMEDIES UNDER THE LOAN DOCUMENTS AGAINST THE COLLATERAL INCLUDING
SPECIFICALLY, BUT NOT LIMITED TO THE STAY IMPOSED BY SECTION 362 OF THE
UNITED STATES FEDERAL BANKRUPTCY CODE, AS AMENDED. DEBTOR HEREBY CONSENTS
TO THE IMMEDIATE LIFTING OF ANY SUCH AUTOMATIC STAY, AND WILL NOT CONTEST
ANY MOTION BY BANK TO LIFT SUCH STAY. DEBTOR EXPRESSLY ACKNOWLEDGES THAT
(a) THERE IS NO EQUITY IN THE COLLATERAL AFTER CONSIDERATION OF THE AMOUNT
OWED BANK, AND (b) THE COLLATERAL IS NOT NOW, AND WILL NEVER BE NECESSARY
TO ANY PLAN OF REORGANIZATION OF ANY TYPE.
12. INDEMNITY. Pledgor hereby indemnifies and agrees to hold harmless
Bank, and its officers, directors, employees, agents and representatives (each
an "Indemnified Person") from and against any and all liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature (collectively, the "Claims") which may be
imposed on, incurred by, or asserted against, any Indemnified Person arising in
connection with the Loan Documents, the Indebtedness or the Collateral
(including without limitation, the enforcement of the Loan Documents and the
defense of any Indemnified Person's actions and/or inactions in connection with
the Loan Documents); provided, however, that no Indemnified Person will be
indemnified hereunder for such Indemnified Person's negligence or willful
misconduct. The indemnification provided for in this Section shall survive the
termination of this Agreement and shall extend and continue to benefit each
individual or entity who is or has at any time been an Indemnified Person
hereunder.
8
<PAGE>
13. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire agreement
of Bank and Pledgor with respect to the Collateral. If the parties hereto
are parties to any prior agreement, either written or oral, relating to the
Collateral, the terms of this Agreement shall amend and supersede the terms
of such prior agreements as to transactions on or after the effective
date of this Agreement, but all security agreements, financing statements,
guaranties, other contracts and notices for the benefit of Bank shall
continue in full force and effect to secure the Indebtedness unless Bank
specifically releases its rights thereunder by separate release.
(b) AMENDMENT. No modification, consent or amendment of any
provision of this Agreement or any of the other Loan Documents shall be
valid or effective unless the same is in writing and signed by the party
against whom it is sought to be enforced.
(c) ACTIONS BY BANK. The lien, security interest and other security
rights of Bank hereunder shall not be impaired by (i) any renewal,
extension, increase or modification with respect to the Indebtedness, (ii)
any surrender, compromise, release, renewal, extension, exchange or
substitution which Bank may grant with respect to the Collateral, or (iii)
any release or indulgence granted to any endorser, guarantor or surety of
the Indebtedness. The taking of additional security by Bank shall not
release or impair the lien, security interest or other security rights of
Bank hereunder or affect the obligations of Pledgor hereunder.
(d) WAIVER BY BANK. Bank may waive any Event of Default without
waiving any other prior or subsequent Event of Default. Bank may remedy
any default without waiving the Event of Default remedied. Neither the
failure by Bank to exercise, nor the delay by Bank in exercising, any right
or remedy upon any Event of Default shall be construed as a waiver of such
Event of Default or as a waiver of the right to exercise any such right or
remedy at a later date. No single or partial exercise by Bank of any right
or remedy hereunder shall exhaust the same or shall preclude any other or
further exercise thereof, and every such right or remedy hereunder may be
exercised at any time. No waiver of any provision hereof or consent to any
departure by Pledgor therefrom shall be effective unless the same shall be
in writing and signed by Bank and then such waiver or consent shall be
effective only in the specific instances, for the purpose for which given
and to the extent therein specified. No notice to or demand on Pledgor in
any case shall of itself entitle Pledgor to any other or further notice or
demand in similar or other circumstances.
(e) COSTS AND EXPENSES. Pledgor will upon demand pay to Bank the
amount of any and all reasonable costs and expenses (including without
limitation, reasonable attorneys' fees and expenses), which Bank may incur
in connection with (i) the preparation of this Agreement and the perfection
and preservation of the security interests granted under the Loan
Documents, (ii) the custody, preservation, use or operation of, or the sale
of, collection from, or other realization upon, the Collateral, (iii) the
exercise or enforcement of any of the rights of Bank under the Loan
Documents, or (iv) the failure by Pledgor to perform or observe any of the
provisions hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL
LAWS, EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION OR
NON-PERFECTION OF THE SECURITY INTEREST GRANTED HEREUNDER, IN RESPECT OF
ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF TEXAS.
(g) VENUE. THIS AGREEMENT HAS BEEN ENTERED INTO IN THE COUNTY IN
TEXAS WHERE BANK'S ADDRESS FOR NOTICE PURPOSES IS LOCATED, AND IT SHALL BE
PERFORMABLE FOR ALL PURPOSES IN SUCH COUNTY. COURTS WITHIN THE STATE OF
9
<PAGE>
TEXAS SHALL HAVE JURISDICTION OVER ANY AND ALL DISPUTES ARISING UNDER OR
PERTAINING TO THIS AGREEMENT AND VENUE FOR ANY SUCH DISPUTES SHALL BE IN
THE COUNTY OR JUDICIAL DISTRICT WHERE THIS AGREEMENT HAS BEEN EXECUTED AND
DELIVERED.
(h) SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable,
shall not impair or invalidate the remainder of this Agreement and the
effect thereof shall be confined to the provision held to be illegal,
invalid or unenforceable.
(i) NOTICES. All notices, requests, demands or other communications
required or permitted to be given pursuant to this Agreement shall be in
writing and given as set forth in the Loan Agreement.
(j) BINDING EFFECT AND ASSIGNMENT. This Agreement (i) creates a
continuing security interest in the Collateral, (ii) shall be binding on
Pledgor and the heirs, executors, administrators, personal representatives,
successors and assigns of Pledgor, and (iii) shall inure to the benefit of
Bank and its successors and assigns. Without limiting the generality of
the foregoing, Bank may pledge, assign or otherwise transfer the
Indebtedness and its rights under this Agreement and any of the other Loan
Documents to any other party. Pledgor's rights and obligations hereunder
may not be assigned or otherwise transferred without the prior written
consent of Bank.
(k) TERMINATION. It is contemplated by the parties hereto that from
time to time there may be no outstanding Indebtedness, but notwithstanding
such occurrences, this Agreement shall remain valid and shall be in full
force and effect as to subsequent outstanding Indebtedness. Upon (i) the
satisfaction in full of the Indebtedness, and (ii) the termination or
expiration of any commitment of Bank to extend credit to Borrower, this
Agreement and the security interests created hereby shall terminate. Upon
termination of this Agreement and Pledgor's written request, Bank will, at
Pledgor's sole cost and expense, return to Pledgor such of the Collateral
as shall not have been sold or otherwise disposed of or applied pursuant to
the terms hereof and execute and deliver to Pledgor such documents as
Pledgor shall reasonably request to evidence such termination. In
addition, Pledgor is entitled to one or more partial releases of Bank's
security interest in the Collateral pursuant to provisions in Section 3.1
of the Loan Agreement.
(l) CUMULATIVE RIGHTS. All rights and remedies of Bank hereunder are
cumulative of each other and of every other right or remedy which Bank may
otherwise have at law or in equity or under any of the other Loan
Documents, and the exercise of one or more of such rights or remedies shall
not prejudice or impair the concurrent or subsequent exercise of any other
rights or remedies.
(m) GENDER AND NUMBER. Within this Agreement, words of any gender
shall be held and construed to include the other gender, and words in the
singular number shall be held and construed to include the plural and words
in the plural number shall be held and construed to include the singular,
unless in each instance the context requires otherwise.
10
<PAGE>
(n) DESCRIPTIVE HEADINGS. The headings in this Agreement are for
convenience only and shall in no way enlarge, limit or define the scope or
meaning of the various and several provisions hereof.
EXECUTED as of the date first written above.
Pledgor's Address: PLEDGOR:
4100 South Hulen UNITED SERVICES PLANNING
P.O. Box 2387 ASSOCIATION
Fort Worth, Texas 76113
Attn: Chief Financial Officer
By: /s/ Lamar C. Smith
--------------------------------
Name: Lamar C. Smith
-----------------------------
Title: Chief Executive Officer
-----------------------------
Bank's Address:
NORWEST BANK TEXAS, N.A.
By: /s/ Tom Pittman
-----------------------------------
Name: Tom Pittman
--------------------------------
Title: Senior Vice President
--------------------------------
Address for mail delivery and notices:
777 West Rosedale Street
P.O. Box 1480
Fort Worth, Texas 76101-1480
11
<PAGE>
SCHEDULE "A"
TO
PLEDGE AGREEMENT
DATED SEPTEMBER 30, 1998
BY AND BETWEEN
NORWEST BANK TEXAS, N.A.
AND
UNITED SERVICES PLANNING ASSOCIATION
The following property is a part of the Collateral as defined in Section 1:
<TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<S> <C> <C>
Mutual Fund Name Account # Shares
- --------------------------------------------------------------------------------
Destiny I 7029424553 669,379.949
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
12
<PAGE>
AMENDMENT NO. 3
TO
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant /X/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/X/ Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2)
/ / Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
(Name of Registrant as Specified in Its Charter)
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
/ / No fee required.
/X/ Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
Class B Non-Voting Common Stock, $0.02 par value per share
--------------------------------------------------------------------
2) Aggregate number of securities to which transaction
applies: 947,483 (1)
----------------------------------------------------------
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11: $28.24 (1)
-------------------------------
4) Proposed maximum aggregate value of transaction: $26,756,919.92
------------------
5) Total Fee Paid: $5,351.38
--------------
(1) Total number of shares of Class B Non-Voting Common Stock estimated to be
outstanding as of June 15, 1998.
(2) Pursuant to Rule 0-11, the filing fee was computed on the basis of a $28.24
per share cash price.
/X/ Fee paid previously with preliminary materials.
/X/ Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid: $5,351.38
----------------------------------------------
2) Form Schedule or Registration Statement No.: Schedule 14A-Preliminary
------------------------
3) Filing Party: Independent Research Agency for Life Insurance, Inc.
------------------------------------------------------
4) Date Filed: July 6, 1998
---------------------------------------------------------
<PAGE>
[LOGO]
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
4100 SOUTH HULEN STREET
FORT WORTH, TEXAS 76109
Dear Shareholder:
You are cordially invited to attend a Special Meeting of Shareholders of
Independent Research Agency for Life Insurance, Inc. (the "Company") to be held
at :00 a.m. local time on _____________, 1998, at 4100 South Hulen Street,
Fort Worth, Texas 76109 (the "Special Meeting"). At the Special Meeting you
will be asked to consider and vote upon a proposal to approve an Agreement and
Plan of Merger, dated as of July 1, 1998 (the "Merger Agreement"), between the
Company and First Command Financial Corporation ("First Command"). Pursuant to
the Merger Agreement, the Company will be merged (the "Merger") with and into
First Command, which will continue in existence (the "Surviving Corporation").
Pursuant to the Merger, each share of Class A Voting Common Stock, par
value $0.10 per share ("Class A Stock"), of the Company issued and outstanding
(other than shares of Class A Stock held in treasury by the Company) immediately
prior to the effective time of the Merger (the "Effective Time"), which the
Board of Directors anticipates will be 12:01 a.m. on ________, 1998, subject to
and upon the terms and conditions of the Merger Agreement, will be converted
into five shares of Voting Common Stock, par value $0.01 per share ("Surviving
Corporation Voting Stock"), of the Surviving Corporation (the "Class A
Consideration"). Further, (i) each share of Class B Non-Voting Common Stock,
par value $0.02 per share ("Class B Stock"), held by a holder of Class B Stock
(a "Class B Shareholder") that is not a holder of Class A Stock, issued and
outstanding immediately prior to the Effective Time, subject to and upon the
terms and conditions of the Merger Agreement, will be converted into $28.24 in
cash, without interest (the "Class B Cash Consideration"), and (ii) each share
of Class B Stock held by a Class B Shareholder that is also a holder of Class A
Stock (a "Class A/B Shareholder"), issued and outstanding immediately prior to
the Effective Time, subject to and upon the terms and conditions of the Merger
Agreement, will be converted into one share of Nonvoting Common Stock, par value
$0.01 per share ("Surviving Corporation Nonvoting Stock"), of the Surviving
Corporation (the "Class B Nonvoting Stock Consideration," and, together with the
Class B Cash Consideration, the "Class B Consideration"); provided, however that
each Class A/B Shareholder may elect to receive, in lieu of receiving the Class
B Nonvoting Stock Consideration, the Class B Cash Consideration for all shares
of Class B Stock held immediately prior to the Effective Time. Each holder of
Common Stock, $0.01 par value per share of First Command ("First Command Common
Stock"), issued and outstanding immediately prior to the Effective Time, subject
to and upon the terms and conditions of the Merger Agreement, will receive one
share of Surviving Corporation Nonvoting Stock for each 25 shares of First
Command Common Stock held by such shareholder. A copy of the Merger Agreement,
which sets forth, among other things, the terms and conditions concerning the
receipt of the Class A Consideration and the Class B Consideration
(collectively, the "Merger Consideration"), is attached as Annex A to the
accompanying Proxy Statement. You are urged to and should read the accompanying
Proxy Statement and related materials, which, among other things, provide a more
detailed description of the Merger Agreement, the Merger and the other
transactions contemplated thereby.
Your Board of Directors, based upon the unanimous recommendation of a
special committee of independent directors (the "Special Committee"), has
determined that the terms of the proposed Merger are fair to and in the best
interests of the shareholders of the Company (the "IRA Shareholders"), and has
unanimously approved the Merger
<PAGE>
Agreement and the Merger. In arriving at its decision, the Board of Directors
gave careful consideration to a number of factors, including the opinion of
PricewaterhouseCoopers LLP, financial advisor to the Special Committee, to the
effect that, as of the date of such opinion and based on, and subject to the
assumptions, limitations and qualifications set forth in such opinion, the
Merger Consideration to be received by the IRA Shareholders is fair to the Class
A Shareholders and the Class B Shareholders, from a financial point of view. THE
BOARD OF DIRECTORS OF THE COMPANY UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR"
APPROVAL OF THE MERGER AGREEMENT.
The Merger requires the approval at the Special Meeting of (i) the
holders of at least 66-2/3% of the outstanding shares of Class A Stock and
Class B Stock, voting together as a single class, (ii) the holders of at
least 66-2/3% of the outstanding shares of Class A Stock and Class B Stock,
each voting separately as a class, and (iii) the holders of a majority of the
outstanding shares of Class B Stock not held by Class A/B Shareholders. As
of September 30, 1998, Lamar C. Smith, James N. Lanier, Howard M. Crump, Hal
N. Craig, Donaldson D. Frizzell, Jerry D. Gray, David P. Thoreson, Carroll H.
Payne II, Naomi K. Payne and Freda J. Payne (collectively, the "Management
Group"), each of whom is an officer or director of the Company or First
Command (other than Freda J. Payne) and is also a Class A Shareholder,
beneficially owned an aggregate of 19 shares of Class A Stock and 285,481
shares of Class B Stock (representing approximately 76% and 30.2% of the
outstanding Class A Stock and Class B Stock, respectively). Each member of
the Management Group intends to vote all shares of Class A Stock and Class B
Stock beneficially owned by him or her for approval of the Merger Agreement.
WHETHER OR NOT YOU PLAN TO VOTE IN FAVOR OF THE MERGER AGREEMENT, IF YOU
ARE A CLASS A/B SHAREHOLDER, YOU SHOULD COMPLETE, DATE, SIGN AND RETURN THE
ENCLOSED FORM OF ELECTION IN THE ENCLOSED PRE-ADDRESSED POSTAGE-PREPAID
ENVELOPE. FAILURE TO RETURN A PROPERLY COMPLETED AND EXECUTED FORM OF ELECTION
TO THE PAYING AGENT BY THE ELECTION DEADLINE (AS DEFINED IN THE ACCOMPANYING
PROXY STATEMENT) WILL BE TREATED AS A NON-ELECTION (AS DEFINED IN THE
ACCOMPANYING PROXY STATEMENT) AND WILL RESULT IN YOUR RECEIVING THE CLASS B
NONVOTING STOCK CONSIDERATION IN RESPECT OF YOUR SHARES OF CLASS B STOCK, IN
ADDITION TO THE CLASS A CONSIDERATION IN RESPECT OF YOUR SHARES OF CLASS A
STOCK. AN ELECTION TO RECEIVE THE CLASS B NONVOTING STOCK CONSIDERATION OR THE
CLASS B CASH CONSIDERATION IN RESPECT OF YOUR CLASS B STOCK WILL NOT CONSTITUTE
A VOTE IN FAVOR OF THE APPROVAL OF THE MERGER AGREEMENT.
AS DESCRIBED ABOVE, AS A RESULT OF THE MERGER, THE CLASS B SHAREHOLDERS
WILL RECEIVE $28.24 FOR EACH SHARE OF CLASS B STOCK EXCHANGED, THE CLASS B STOCK
WILL BE ELIMINATED AND THE COMPANY WILL BE PRIVATELY OWNED BY THE CURRENT
HOLDERS OF CLASS A STOCK.
YOUR VOTE IS IMPORTANT. Whether or not you plan to attend the Special
Meeting, you are requested to complete, date, sign and return the enclosed proxy
card in the enclosed pre-addressed postage-prepaid envelope. Your shares will be
voted in accordance with the instructions you have given in your proxy. If no
instructions are given on your proxy, the shares represented by the proxy will
be voted at the Special Meeting in favor of the Merger Agreement and in
accordance with the Proxy Statement on any other business that may properly come
before the Special Meeting or any adjournments or postponements thereof. If you
do not return the accompanying form of proxy, your shares will not be voted in
favor of approval of the Merger Agreement and will have the same effect as a
vote against approval of the Merger Agreement. The proxy may be revoked at any
time prior to the vote at the Special Meeting by following the procedures set
forth in the accompanying Proxy Statement. If you attend the Special Meeting,
you may vote in person even if you have previously returned your proxy card.
The Board of Directors and management of the Company appreciate your
continued support. If you need assistance in completing your proxy card or Form
of Election, or if you have any questions about the Proxy Statement, please feel
free to contact Sandy Allen, Corporate Secretary of the Company, at (817)
731-8621.
Sincerely,
Lamar C. Smith
Chairman of the Board
<PAGE>
[LOGO]
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
4100 SOUTH HULEN STREET
FORT WORTH, TEXAS 76109
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON __________________, 1998
To the Shareholders of Independent Research Agency for Life Insurance, Inc.:
Notice is hereby given that a Special Meeting of Shareholders of
Independent Research Agency for Life Insurance, Inc., a Texas corporation (the
"Company"), will be held at :00 a.m. local time on _____________, 1998, at
4100 South Hulen Street, Fort Worth, Texas 76109 (the "Special Meeting") for the
following purposes:
1. To consider and vote on a proposal to approve the Agreement and Plan
of Merger, dated as of July 1, 1998 (the "Merger Agreement"), between the
Company and First Command Financial Corporation, a Texas corporation
("First Command"). Pursuant to the Merger Agreement, the Company will be
merged (the "Merger") with and into First Command, which will continue in
existence (the "Surviving Corporation").
2. To consider such other matters as may properly come before the Special
Meeting or any adjournment or postponement thereof.
The record date for determining the holders of shares of Class A Voting
Common Stock, par value $0.10 per share ("Class A Stock"), and Class B
Non-Voting Common Stock, par value $0.02 per share ("Class B Stock"), of the
Company entitled to receive notice of, and to vote at, the Special Meeting or
any adjournment or postponement thereof has been fixed as of the close of
business on _________________, 1998.
As a result of the Merger, the Class B Shareholders will receive $28.24
for each share of Class B Stock exchanged, the Class B Stock will be
eliminated and the Company will be privately owned by the current holders of
Class A Stock.
The Merger requires the approval at the Special Meeting of (i) the
holders of at least 66-2/3% of the outstanding shares of Class A Stock and
Class B Stock, voting together as a single class, (ii) the holders of at
least 66-2/3% of the outstanding shares of Class A Stock and Class B Stock,
each voting separately as a class, and (iii) the holders of a majority of the
outstanding shares of Class B Stock not held by Class A/B Shareholders.
You are urged to and should read the accompanying Proxy Statement and
related materials, which are incorporated herein by reference and form a part of
this Notice.
THE BOARD OF DIRECTORS OF THE COMPANY UNANIMOUSLY RECOMMENDS THAT YOU VOTE
"FOR" APPROVAL OF THE MERGER AGREEMENT.
If the Merger is consummated, holders of either Class A Stock or Class B
Stock who properly demand appraisal of their Class A Stock or Class B Stock, as
applicable, prior to the shareholder vote, do not vote in favor of the approval
of the Merger Agreement, and otherwise comply with the requirements of Articles
5.12 and 5.13 of the Texas Business Corporation Act (the "TBCA") (all as more
fully described in the accompanying Proxy Statement) will be entitled to
statutory appraisal rights. A copy of Articles 5.11 through 5.13 of the TBCA is
attached as Annex C to the accompanying Proxy Statement.
_________________, 1998 By order of the Board of Directors
Sandra T. Allen, Corporate Secretary
<PAGE>
PRELIMINARY PROXY MATERIALS CONFIDENTIAL
FOR USE OF THE COMMISSION ONLY
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
PROXY STATEMENT
----------------------------
SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON [DAY], [DATE], 1998
This Proxy Statement is being furnished to the shareholders of Independent
Research Agency for Life Insurance, Inc., a Texas corporation ("IRA" or the
"Company"), in connection with a special meeting of shareholders of IRA (the
"Special Meeting") to be held on __________, ___________, 1998 at
__________________ a.m., local time, at 4100 South Hulen Street, Fort Worth,
Texas 76109. The accompanying proxy is being solicited by IRA's Board of
Directors and is to be voted at the Special Meeting or at any adjournments or
postponements thereof.
At the Special Meeting, shareholders of IRA will be asked to consider and
vote upon a proposed merger (the "Merger") of IRA with and into First Command
Financial Corporation ("First Command"), a Texas corporation, pursuant to an
Agreement and Plan of Merger, dated as of July 1, 1998 (the "Merger Agreement"),
by and between the Company and First Command. In the Merger, the Company will be
merged with and into First Command, which will continue in existence (the
"Surviving Corporation").
As a result of the Merger, the Surviving Corporation will be privately
owned by the current holders of Class A Stock.
Upon the terms and conditions set forth in the Merger Agreement, in the
Merger, each share of Class A Voting Common Stock, par value $0.10 per share
("Class A Stock"), of the Company issued and outstanding immediately prior to
the Effective Time (as defined below) (other than shares of Class A Stock held
in treasury by the Company), subject to and upon the terms and conditions of the
Merger Agreement, will be converted into five shares of Voting Common Stock, par
value $0.01 per share ("Surviving Corporation Voting Stock"), of the Surviving
Corporation (the "Class A Consideration"). Further, (i) each share of Class B
Non-Voting Common Stock, par value $0.02 per share ("Class B Stock"), held by a
holder of Class B Stock (a "Class B Shareholder") that is not a holder of Class
A Stock, issued and outstanding immediately prior to the Effective Time, subject
to and upon the terms and conditions of the Merger Agreement, will be converted
into $28.24 in cash, without interest (the "Class B Cash Consideration"), and
(ii) each share of Class B Stock held by a Class B Shareholder that is also a
holder of Class A Stock (a "Class A/B Shareholder"), issued and outstanding
immediately prior to the Effective Time, subject to and upon the terms and
conditions of the Merger Agreement, will be converted into one share of
Nonvoting Common Stock, par value $0.01 per share ("Surviving Corporation
Nonvoting Stock"), of the Surviving Corporation (the "Class B Nonvoting Stock
Consideration," and, together with the Class B Cash Consideration, the "Class B
Consideration"); provided, however that each Class A/B Shareholder may elect to
receive, in lieu of receiving the Class B Nonvoting Stock Consideration, the
Class B Cash Consideration for all shares of Class B Stock held immediately
prior to the Effective Time. Each holder of Common Stock, $0.10 par value per
share, of First Command ("First Command Common Stock"), issued and outstanding
immediately prior to the Effective Time, subject to and upon the terms and
conditions of the Merger Agreement, will receive one share of Surviving
Corporation Nonvoting Stock for each 25 shares of First Command Common Stock
held by such shareholder. See "THE PROPOSED MERGER--Conversion of Shares."
A Form of Election (the "Form of Election") with which Class A/B
Shareholders may elect to receive the Class B Nonvoting Stock Consideration or
the Class B Cash Consideration for their shares of Class B Stock accompanies
this Proxy Statement. In order to elect the Class B Nonvoting Stock
Consideration or the Class B Cash Consideration, each Class A/B Shareholder must
submit a Form of Election to First Command Bank (the "Paying Agent") by no later
than 5:00 p.m. Central Daylight time on ____________________, 1998, (the
"Election
<PAGE>
Deadline"). The Form of Election accompanying this Proxy Statement contains
important information for Class A/B Shareholders concerning the timing and
procedures for making an election. Please read such materials carefully.
The Merger requires the approval at the Special Meeting of (i) the
holders of at least 66-2/3% of the outstanding shares of Class A Stock and
Class B Stock, voting together as a single class, (ii) the holders of at
least 66-2/3% of the outstanding shares of Class A Stock and Class B Stock,
each voting separately as a class, and (iii) the holders of a majority of the
outstanding shares of Class B Stock not held by Class A/B Shareholders.
Accordingly, failure to vote or abstentions will have the effect of a vote
against the Merger for the purpose of determining whether the requisite
approval by the holders of Class A Stock and Class B Stock is obtained. As
of September 30, 1998, Lamar C. Smith, James N. Lanier, Howard M. Crump, Hal
N. Craig, Donaldson D. Frizzell, Jerry D. Gray, David P. Thoreson, Carroll H.
Payne II, Naomi K. Payne and Freda J. Payne (collectively, the "Management
Group"), each of whom is an officer or director of the Company or First
Command (other than Freda J. Payne) and is also a Class A Shareholder,
beneficially owned an aggregate of 19 shares of Class A Stock and 285,481
shares of Class B Stock (representing approximately 76% and 30.2% of the
outstanding Class A Stock and Class B Stock, respectively). Each member of
the Management Group intends to vote all shares of Class A Stock and Class B
Stock beneficially owned by him or her for approval of the Merger Agreement.
Approval of the Merger Agreement by the shareholders of First Command
requires the affirmative vote of more than 66-2/3% of the shares of First
Command Common Stock. As of the date hereof, members of the Management Group
beneficially own an aggregate of 1,000 shares of First Command Common Stock
(representing 100% of the outstanding First Command Common Stock). Each such
member of the Management Group intends to vote all shares of First Command
Common Stock beneficially owned by him or her for approval of the Merger
Agreement.
----------------------------
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF THIS
TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF
THE INFORMATION CONTAINED IN THIS DOCUMENT.
ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
IF THE PROPOSED MERGER IS CONSUMMATED, HOLDERS OF CLASS A STOCK AND
CLASS B STOCK WHO COMPLY WITH THE REQUIREMENTS OF ARTICLES 5.12 AND 5.13 OF
THE TEXAS BUSINESS CORPORATION ACT (THE "TBCA") ARE ENTITLED TO STATUTORY
DISSENTERS' APPRAISAL RIGHTS. TO PERFECT DISSENTERS' RIGHTS, A SHAREHOLDER
MUST SEND A NOTICE TO THE CORPORATION BEFORE THE DATE OF THE VOTE AND MUST
NOT VOTE IN FAVOR OF THE MERGER BY PROXY OR OTHERWISE. A COPY OF ARTICLES
5.11 THROUGH 5.13 OF THE TBCA IS ATTACHED TO THIS PROXY STATEMENT AS ANNEX C.
SEE "THE PROPOSED MERGER--RIGHTS OF DISSENTING SHAREHOLDERS."
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROXY STATEMENT IN CONNECTION
WITH THE SOLICITATION OF PROXIES AND, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY FIRST
COMMAND OR THE COMPANY. THIS PROXY STATEMENT DOES NOT CONSTITUTE THE
SOLICITATION OF A PROXY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT
IS UNLAWFUL TO MAKE SUCH SOLICITATION.
<PAGE>
Only holders of record of Class A Shares and/or Class B Shares at the
close of business on [RECORD DATE] are entitled to notice of and to vote at
the Special Meeting. At the close of business on [RECORD DATE], a total of
25 Class A Shares and ______________ Class B Shares were outstanding. Each
share of Class A Stock and Class B Stock is entitled to one vote with respect
to the approval of the Merger Agreement at the Special Meeting. With regard
to any other matters presented at the Special Meeting, each share of Class A
Stock will be entitled to one vote, and the Class B Shareholders will not be
entitled to vote on such matters. See "THE SPECIAL MEETING--Votes Required;
Voting Rights." This Proxy Statement is first being sent to shareholders on
or about [MAILING DATE].
In addition to solicitation by use of the mails, proxies may be solicited
by directors, officers and employees of IRA in person or by telephone, telegram
or other means of communications. Such directors, officers and employees will
not be additionally compensated but may be reimbursed for reasonable
out-of-pocket expenses in connection with such solicitation. No proxy
solicitation firm has been retained to assist with soliciting and tabulating
proxies for the Special Meeting. Expenses in connection with the solicitation of
proxies will be paid by the Company.
THE DATE OF THIS PROXY STATEMENT IS ________________, 1998.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
INFORMATION CONCERNING FORWARD-LOOKING STATEMENTS. . . . . . . . . . . . . . . 1
SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Independent Research Agency for Life Insurance, Inc. . . . . . . . . 2
First Command Financial Corporation. . . . . . . . . . . . . . . . . 2
Trading Markets and Market Price Data. . . . . . . . . . . . . . . . 2
Special Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Background of the Merger . . . . . . . . . . . . . . . . . . . . . . 3
Source and Amount of Funds . . . . . . . . . . . . . . . . . . . . . 3
Purpose and Structure of the Merger. . . . . . . . . . . . . . . . . 3
Certain Effects of the Merger; Plans for the Company Following
the Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Contracts with Respect to Surviving Corporation Common Stock . . . . 5
Recommendation of the IRA Board and the Special Committee; Fairness
of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . 5
Position of Management Group and First Command . . . . . . . . . . . 5
Opinion of the Financial Advisor . . . . . . . . . . . . . . . . . . 5
Interests of Certain Persons in the Merger . . . . . . . . . . . . . 6
Employment Agreements. . . . . . . . . . . . . . . . . . . . . . . . 6
Certain Transactions in IRA Common Stock . . . . . . . . . . . . . . 6
Accounting Treatment . . . . . . . . . . . . . . . . . . . . . . . . 6
Regulatory Filings and Approvals . . . . . . . . . . . . . . . . . . 7
Certain Federal Income Tax Consequences of the Merger. . . . . . . . 7
The Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Time, Date and Place . . . . . . . . . . . . . . . . . . . . . . . . 7
Purpose of the Special Meeting . . . . . . . . . . . . . . . . . . . 7
Record Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Voting Rights; Votes Required. . . . . . . . . . . . . . . . . . . . 8
Security Ownership of IRA's Management . . . . . . . . . . . . . . . 8
Revocability of Proxy. . . . . . . . . . . . . . . . . . . . . . . . 8
The Proposed Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Closing; Effective Time. . . . . . . . . . . . . . . . . . . . . . . 8
Conversion of Shares . . . . . . . . . . . . . . . . . . . . . . . . 9
Class A/B Shareholders Election; Procedures. . . . . . . . . . . . . 9
Charter and Bylaws . . . . . . . . . . . . . . . . . . . . . . . . .10
Conditions to the Merger . . . . . . . . . . . . . . . . . . . . . .10
Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Rights of Dissenting Shareholders. . . . . . . . . . . . . . . . . .12
SELECTED FINANCIAL DATA OF IRA . . . . . . . . . . . . . . . . . . . . . . . .13
SELECTED FINANCIAL DATA OF FIRST COMMAND . . . . . . . . . . . . . . . . . . .15
SUMMARY PRO FORMA DATA . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
i
<PAGE>
SPECIAL FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Background of the Merger. . . . . . . . . . . . . . . . . . . . . . . . .18
Source and Amount of Funds. . . . . . . . . . . . . . . . . . . . . . . .20
Credit Facility. . . . . . . . . . . . . . . . . . . . . . . . . . .21
Purpose and Structure of the Merger . . . . . . . . . . . . . . . . . . .22
Certain Effects of the Merger; Plans for the Company after
the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Contracts with Respect to Surviving Corporation Common Stock. . . . . . .24
Surviving Corporation Shareholders' Agreement. . . . . . . . . . . .24
Recommendation of the IRA Board and the Special Committee;
Fairness of the Merger . . . . . . . . . . . . . . . . . . . . . . .25
Position of the Management Group and First Command as to the
Fairness of the Merger . . . . . . . . . . . . . . . . . . . . . . .26
Opinion of the Financial Advisor. . . . . . . . . . . . . . . . . . . . .26
Income Approach. . . . . . . . . . . . . . . . . . . . . . . . . . .27
Transaction Approach . . . . . . . . . . . . . . . . . . . . . . . .27
Market Multiple Approach. . . . . . . . . . . . . . . . . . . . . . . . .27
American Annuity Group, Inc. . . . . . . . . . . . . . . . . . . . .27
Cotton States Life Insurance Company . . . . . . . . . . . . . . . .27
Kansas City Life Insurance Company . . . . . . . . . . . . . . . . .27
Current/Historical Market Pricing and Shareholder Agreement
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Adjusted Book Value Approach. . . . . . . . . . . . . . . . . . . . . . .28
Interests of Certain Persons in the Merger. . . . . . . . . . . . . . . .29
Employment Agreements . . . . . . . . . . . . . . . . . . . . . . . . . .30
Certain Transactions in IRA Common Stock. . . . . . . . . . . . . . . . .30
Purchases By IRA . . . . . . . . . . . . . . . . . . . . . . . . . .30
Recent Transactions. . . . . . . . . . . . . . . . . . . . . . . . .31
Purchases By Management Group. . . . . . . . . . . . . . . . . . . .31
Accounting Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . .31
Regulatory Filings and Approvals. . . . . . . . . . . . . . . . . . . . .31
Certain Federal Income Tax Considerations . . . . . . . . . . . . . . . .31
Certain Consequences of Reorganization Status. . . . . . . . . . . .32
The Company and the Surviving Corporation . . . . . . . . . . .32
Class A/B Shareholders. . . . . . . . . . . . . . . . . . . . .32
Shareholders Who Own Only Class B Stock . . . . . . . . . . . .33
Certain Post-Merger Considerations for Surviving
Shareholders . . . . . . . . . . . . . . . . . . . . . . .33
Treatment as an S Corporation . . . . . . . . . . . . . . . . .33
Taxation of Surviving Corporation . . . . . . . . . . . . . . .33
Taxation of Surviving Corporation Shareholders. . . . . . . . .34
Tax Opinion Engagement . . . . . . . . . . . . . . . . . . . . . . .34
CERTAIN INFORMATION CONCERNING IRA . . . . . . . . . . . . . . . . . . . . . .34
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Directors and Executive Officers of IRA . . . . . . . . . . . . . . . . .35
Mission Accomplishment Plan . . . . . . . . . . . . . . . . . . . . . . .35
ii
<PAGE>
CERTAIN INFORMATION CONCERNING FIRST COMMAND . . . . . . . . . . . . . . . . .36
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Directors and Executive Officers of First Command . . . . . . . . . . . .38
CERTAIN INFORMATION CONCERNING THE MANAGEMENT GROUP. . . . . . . . . . . . . .39
THE SPECIAL MEETING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
Votes Required; Voting Rights . . . . . . . . . . . . . . . . . . . . . .40
Dissenters' Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . .41
Solicitation of Proxies . . . . . . . . . . . . . . . . . . . . . . . . .41
Revocability of Proxies . . . . . . . . . . . . . . . . . . . . . . . . .42
THE PROPOSED MERGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
Closing; Effective Time . . . . . . . . . . . . . . . . . . . . . . . . .42
Conversion of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . .42
Shareholder Elections . . . . . . . . . . . . . . . . . . . . . . . . . .43
The Merger Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . .44
The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Directors and Officers . . . . . . . . . . . . . . . . . . . . . . .44
Charter and Bylaws . . . . . . . . . . . . . . . . . . . . . . . . .44
Filings; Other Actions; Notification . . . . . . . . . . . . . . . .44
Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . .45
Employee Benefits. . . . . . . . . . . . . . . . . . . . . . . . . .45
Takeover Statute . . . . . . . . . . . . . . . . . . . . . . . . . .46
Conditions to the Merger . . . . . . . . . . . . . . . . . . . . . .46
Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
IRA Charter Business Combination Provision. . . . . . . . . . . . . . . .47
State Anti-takeover Statutes. . . . . . . . . . . . . . . . . . . . . . .48
Rights of Dissenting Shareholders . . . . . . . . . . . . . . . . . . . .49
MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP OF IRA
COMMON STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
Number of Security Holders. . . . . . . . . . . . . . . . . . . . . . . .51
Distribution History. . . . . . . . . . . . . . . . . . . . . . . . . . .51
Security Ownership of Management and Certain Beneficial Owners of IRA
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP OF FIRST COMMAND
COMMON STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
Number of Security Holders. . . . . . . . . . . . . . . . . . . . . . . .54
Distribution History. . . . . . . . . . . . . . . . . . . . . . . . . . .54
Security Ownership of Management and Certain Beneficial Owners of First
Command Common Stock . . . . . . . . . . . . . . . . . . . . . . . .54
PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS OF IRA . . . . . . . . .54
iii
<PAGE>
DESCRIPTION OF IRA CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . .62
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
Class A Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
Class B Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
Distributions; Preemptive Rights; Liquidation . . . . . . . . . . . . . .63
DESCRIPTION OF THE SURVIVING CORPORATION CAPITAL STOCK . . . . . . . . . . . .64
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
Restrictions on Transfer of Shares. . . . . . . . . . . . . . . . . . . .64
Subchapter S Provisions . . . . . . . . . . . . . . . . . . . . . . . . .65
Revocation of Election . . . . . . . . . . . . . . . . . . . . . . .65
Inadvertent Termination of Subchapter S Election . . . . . . . . . .65
Provision in Shareholder Wills . . . . . . . . . . . . . . . . . . .66
Distributions to Pay Tax Liabilities . . . . . . . . . . . . . . . .66
Nonrecognition of Certain Transfers. . . . . . . . . . . . . . . . .67
Legends on Share Certificates. . . . . . . . . . . . . . . . . . . .67
Election to Close Books. . . . . . . . . . . . . . . . . . . . . . .67
Business Combination Provision. . . . . . . . . . . . . . . . . . . . . .67
Classified Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
INDEPENDENT AUDITORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
OTHER MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
AVAILABLE INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . .69
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. . . . . . . . . . . . . . . .69
FIRST COMMAND FINANCIAL CORPORATION INDEX TO BALANCE SHEETS. . . . . . . . . F-1
</TABLE>
ANNEX A -- Agreement and Plan of Merger
ANNEX B -- Opinion of the Financial Advisor
ANNEX C -- Provisions of the Texas Business Corporation Act Relating to
Rights of Dissenting Shareholders
ANNEX D -- IRA Annual Report on Form 10-K for the Fiscal Year Ended
September 30, 1997, and Quarterly Report on Form 10-Q for the
Period Ended June 30, 1998, as amended September 9, 1998
ANNEX E -- Articles of Incorporation, as Proposed to be Amended, and
Bylaws, as Proposed to be Amended, of Surviving Corporation
ANNEX F -- Tax Opinion of Ernst & Young LLP
iv
<PAGE>
INFORMATION CONCERNING FORWARD-LOOKING STATEMENTS
Certain of the statements contained in this Proxy Statement and in
documents incorporated herein by reference may be considered forward-looking
statements, including, without limitation, (i) the financial data provided in
"PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS" and the statements in
"SUMMARY PRO FORMA DATA," (ii) the statements in "SPECIAL FACTORS--Purpose
and Structure of the Merger" and "--Certain Effects of the Merger; Plans for
the Company after the Merger," (iii) the statements in "SPECIAL FACTORS--
Recommendation of the IRA Board, the Special Committee and First Command;
Fairness of the Merger" and "--Opinion of the Financial Advisor" concerning,
among other things, prospective considerations that the IRA Board of
Directors (the "IRA Board") took into account in arriving at its
recommendation in favor of the Merger and (iv) variations in the foregoing
statements whenever they appear in this Proxy Statement and the documents
incorporated herein by reference. Forward-looking statements are made based
upon either IRA management's current expectations and beliefs concerning
future developments and their potential effects upon IRA and, if applicable,
the Surviving Corporation. There can be no assurance that future developments
affecting IRA or the Surviving Corporation will be those anticipated by their
respective managements. Actual results may differ materially from those
included in the forward-looking statements. These forward-looking statements
involve risks and uncertainties including, but not limited to, the following:
the event of armed conflict; changes that affect the number of active U.S.
military personnel; changes in general economic conditions, including the
performance of financial markets, interest rates and the level of personal
bankruptcies; customer responsiveness to existing and new services;
competitive, regulatory or tax changes that affect the cost of or demand for
IRA's or the Surviving Corporation's services; adverse litigation results;
and other factors set forth elsewhere in this Proxy Statement and in the
documents incorporated by reference herein.
While IRA reassesses material trends and uncertainties affecting its
financial condition and results of operations, in connection with its
preparation of management's discussion and analysis of financial condition and
results of operations contained in the Company's quarterly and annual reports,
neither IRA nor the Surviving Corporation intends to review or revise in light
of future events any particular forward-looking statement referenced in this
Proxy Statement or incorporated herein by reference.
The information referred to above should be considered by shareholders
of IRA (the "IRA Shareholders") when reviewing any forward-looking statements
contained in this Proxy Statement, in any documents incorporated herein by
reference, in any of IRA's public filings or press releases or in any oral
statements made by either IRA, First Command, the Surviving Corporation, or
any of their respective officers or other persons acting on their behalf.
1
<PAGE>
SUMMARY
THE FOLLOWING IS A SUMMARY OF CERTAIN INFORMATION CONTAINED ELSEWHERE IN
THIS PROXY STATEMENT. IT IS NOT, AND IS NOT INTENDED TO BE, COMPLETE IN ITSELF.
REFERENCE IS MADE TO, AND THIS SUMMARY IS QUALIFIED IN ITS ENTIRETY BY, THE
MORE DETAILED INFORMATION CONTAINED ELSEWHERE IN THIS PROXY STATEMENT,
INCLUDING THE ANNEXES HERETO WHICH ARE A PART OF THIS PROXY STATEMENT.
SHAREHOLDERS ARE ENCOURAGED TO READ CAREFULLY ALL OF THE INFORMATION CONTAINED
IN THIS PROXY STATEMENT.
IRA SHAREHOLDERS SHOULD CONSIDER CAREFULLY THE INFORMATION SET FORTH
HEREIN UNDER THE HEADING "SPECIAL FACTORS" IN ADDITION TO THE OTHER INFORMATION
PRESENTED HEREIN.
<TABLE>
<CAPTION>
THE COMPANIES
<S> <C>
Independent Research IRA was incorporated in 1980 under the laws of the
Agency for Life State of Texas and is engaged, directly and
Insurance, Inc. . . . indirectly through subsidiaries, in the business
of a life insurance general agency for sales to
United States military personnel. The Company
conducts its operations in all fifty states, the
District of Columbia, the territory of Guam, the
United Kingdom, Germany and Italy. The Company's
wholly-owned subsidiary, United Services Planning
Association, Inc., is also a Texas corporation and
is a broker-dealer of securities. The Company's
wholly-owned subsidiary, First Command Bank, is a
federal savings bank. The Company's principal
executive offices are located at 4100 South Hulen
Street, Fort Worth, Texas 76109, and its telephone
number is (817) 731-8621. See "CERTAIN
INFORMATION CONCERNING IRA."
First Command Financial First Command, a Texas corporation, was
Corporation . . . . . incorporated on April 1, 1998, for the purpose of
constructing and operating a parking garage (the
"Parking Garage") adjacent to the current
executive offices of IRA. First Command plans to
rent parking spaces to current and future tenants
leasing space in IRA's building with the remaining
parking spaces to be rented to IRA's employees.
IRA has agreed to loan First Command funds to
complete the garage construction. The principal
executive offices of First Command are located at
4100 South Hulen Street, Fort Worth, Texas 76109,
and its telephone number is (817) 731-8621. See
"CERTAIN INFORMATION CONCERNING FIRST COMMAND."
First Command is owned by certain Class A
Shareholders of the Company and is not a subsidiary
of the Company.
The Management The Merger is a "going private transaction"
Group . . . . . . . . under the federal securities laws. Certain
individuals who (i) are executive officers and
directors of IRA, (ii) are Class A
Shareholders, (iii) will retain their position
in the Surviving Corporation after the Merger
and (iv) will retain their equity interest in
the Surviving Corporation, are affiliates
engaged in the going private transaction.
These individuals, each a director of IRA
(other than Freda J. Payne), are (i) Lamar C.
Smith, Chairman of the Board and Chief
Executive Officer of IRA, and Chairman of the
Board, Chief Executive Officer and a director
of First Command, (ii) James N. Lanier,
President and Chief Operating Officer of IRA,
and President, Chief Operating Officer and a
director of First command, (iii) Howard M.
Crump, Senior Vice President and Director of
Marketing of IRA, and Vice President and a
director of First Command, (iv) Carroll H.
Payne II, who is also a director of First
Command, (v) Naomi K. Payne, (vi) Freda J.
Payne, (vii) Hal N. Craig, (viii) Donaldson D.
Frizzell, (ix) Jerry D. Gray, and (x) David P.
Thoreson (collectively, the "Management
Group"). See "CERTAIN INFORMATION CONCERNING
THE MANAGEMENT GROUP."
Trading Markets and There is not now and never has been a trading
Market Price Data . . market for shares of either Class A Stock or Class
B Stock, because of certain statutory and
contractual restrictions concerning the ownership
and disposition of such shares. See "MARKET PRICE
DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP OF IRA
COMMON STOCK."
There is currently no market, and it is
anticipated that no market will develop, for the
Surviving Corporation Voting Common Stock or the
Surviving Corporation Nonvoting Common Stock
(collectively, the "Surviving Corporation Common
Stock"), because of certain statutory and
contractual restrictions concerning the ownership
of such shares. See "MARKET PRICE DATA,
DISTRIBUTIONS AND SECURITY OWNERSHIP OF FIRST
COMMAND COMMON STOCK."
2
<PAGE>
<CAPTION>
SPECIAL FACTORS
<S> <C>
Background of the For a description of events leading to the
Merger . . . . . . . . . approval and adoption of the Merger Agreement by
the Boards of Directors of the Company and First
Command, see "SPECIAL FACTORS--Background of the
Merger."
Source and Amount of Approximately $16.9 million will be required to
Funds . . . . . . . . . . pay the Merger Consideration (assuming that no
Class A/B Shareholder elects to receive the Class
B Cash Consideration), and approximately $1.2
million will be required to pay fees and expenses
related to the Merger. Approximately $2.1 million
of the cash required in connection with the Merger
will be provided by the working capital of IRA,
and approximately $16 million of the cash required
in connection with the Merger will be provided
from the Credit Facility (as defined below). See
"SPECIAL FACTORS--Source and Amount of Funds."
Purpose and Structure of First Command was formed on April 1, 1998, as a
the Merger . . . . . Texas corporation, to construct, own and operate
the Parking Garage adjacent to the executive
offices of IRA. IRA has agreed to provide First
Command with funds pursuant to an interest-bearing
loan to construct the Parking Garage. First
Command was organized as an entity distinct from
IRA to limit potential liability of IRA with
respect to the ownership, construction and
operation of the Parking Garage. As First Command
presently has a limited number of shareholders and
meets the other requirements of S corporation
status, First Command elected S corporation status
in order for its taxable items to "flow through"
to its shareholders. See "SPECIAL
FACTORS--Certain Effects of the Merger; Plans for
the Company after the Merger."
One objective of the Company is to deregister the
Class B Stock under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), which
will cause the Company to no longer be subject to
the reporting requirements of the Exchange Act.
The Company currently incurs costs related to its
status as a public reporting corporation under the
federal securities laws, including indirect costs
as a result of, among other things, the executive
time expended to prepare and review various
filings, furnish information to shareholders and
to attend to other shareholder matters. The
Company anticipates that termination of
registration under the Exchange Act will eliminate
the costs and expenses of various federal
securities filings incurred by the Company with
respect to regulatory and reporting requirements
of the Exchange Act and will reduce the amount of
time devoted by management in connection
therewith. Further, the Company has faced certain
competitive disadvantages resulting from the
public reporting requirements of the Exchange Act.
Also, management of the Company believes that
access to public markets by the Company and its
shareholders will not occur because of the
restrictions on ownership of the Class B Stock.
Additionally, the Company believes that it will
qualify for S corporation status immediately
following the elimination of the Class B Stock.
Management of the Company recognized that, if the
Class B Stock were eliminated, both IRA and First
Command would qualify for S corporation status.
As a result, in order to achieve administrative
simplicity, reduce compliance responsibilities and
eliminate public reporting requirements as
described above, the management of IRA and the
management of First Command decided that IRA
should merge with and into First
3
<PAGE>
Command, rather than to continue both as separate
S corporations. Immediately prior to the Merger,
First Command will transfer all of its assets,
subject to all of its liabilities, to a newly-formed
limited liability company or Qualified Subchapter S
Subsidiary (as defined in the Internal Revenue
Code of 1986, as amended (the "Code")) in return
for all of the capital stock of such subsidiary to
keep the planned operations of First Command
separate and distinct from IRA subsequent to the
Merger. Because First Command currently has
elected to be treated as an S corporation under
the federal tax laws, upon the consummation of the
Merger, the holders of Class A Stock that do not
seek appraisal rights under Articles 5.12 and 5.13
of the TBCA will be shareholders of the Surviving
Corporation, which should be an S corporation.
Accordingly, such holders of Class A Stock, as
holders of Surviving Corporation Voting Stock, and
Class A/B Shareholders that elect to receive
Surviving Corporation Nonvoting Stock for their
Class B Stock will be entitled to the tax
treatment that shareholders of an S corporation
receive under the federal tax laws. See "SPECIAL
FACTORS--Certain Effects of the Merger; Plans for
the Company after the Merger."
The Management Group has engaged in the
transactions contemplated by the Merger
Agreement to assist the Company in attaining
the objectives described above. See "SPECIAL
FACTORS--Purpose and Structure of the Merger."
Certain Effects of the Following the Merger, (i) the holders of Class A
Merger; Plans for the Stock (the "Class A Shareholders"), (ii) the Class
Company Following the A/B Shareholders that elect to receive Surviving
Merger . . . . . . . . . Corporation Nonvoting Stock and (iii) the holders
of First Command Common Stock (the "First Command
Shareholders") will own 100% of the capital stock
of the Surviving Corporation, to the extent that
such shareholders do not elect to seek appraisal
rights. As such, these persons will be the direct
beneficiaries of any future earnings and growth of
the Surviving Corporation, and will have the
ability to benefit from any divestitures,
strategic acquisitions or other corporate
opportunities that may be pursued by the
Company in the future. Upon consummation of the
Merger, the Class B Shareholders that are not
Class A/B Shareholders will cease to have any
direct ownership interest in the Company or
other rights as shareholders of the Company,
including the right to receive distributions.
After the Merger, such shareholders will
benefit from any increases in the cash flow or
the value of the Surviving Corporation only as
a result of any MAP Units (as defined herein)
that such shareholders may then hold. As a
result of the Merger, the Surviving Corporation
will be privately held by the current holders
of Class A Stock, including the Management
Group. See "SPECIAL FACTORS--Certain Effects of
the Merger; Plans for the Company after the
Merger."
Pursuant to the Articles of Incorporation of the
Surviving Corporation and the Surviving
Corporation Shareholders' Agreement (as defined
below), the Surviving Corporation has agreed to
declare and make distributions to all shareholders
of the Surviving Corporation (the "Surviving
Corporation Shareholders") to allow them to pay
their federal income tax liability attributable to
their distributive share of the Surviving
Corporation's taxable income. In addition, the
IRA Board has provided the Class A/B Shareholders
the right to receive the Class B Nonvoting Stock
Consideration. See "SPECIAL FACTORS--Background of
the Merger." Further, the IRA Board, which will
be the Board of the Surviving Corporation upon
consummation of the Merger, anticipates that the
Surviving Corporation, subject to the fiduciary
duties of the Board of Directors of the Surviving
Corporation and the ongoing financial condition of
the Surviving Corporation, will declare and make
distributions that are pro rata to all
shareholders on the
4
<PAGE>
Surviving Corporation Common Stock that
are intended to approximate the income that the
Class A/B Shareholder would have received
from the competitive reinvestment of the Class B
Cash Consideration, taking into account certain
income tax considerations. In the event the
Surviving Corporation makes ongoing repurchases of
the Surviving Corporation Voting Stock or
Surviving Corporation Nonvoting Stock, the IRA
Board presently anticipates that the repurchase
price for such shares will be $28.24 per share,
unless otherwise determined by the Board of
Directors of the Surviving Corporation. See
"SPECIAL FACTORS--Certain Effects of the Merger;
Plans for the Company after the Merger."
Contracts with Respect to Upon the Effective Time, the management of the
Surviving Corporation Surviving Corporation will request that all
Common Stock . . . . . . Surviving Corporation Shareholders, including
the Management Group, execute the Surviving
Corporation Shareholders' Agreement. The
Surviving Corporation Shareholders' Agreement
provides for, among other things, certain
restrictions on the transfer of the Surviving
Corporation Common Stock held by such Agreeing
Parties and the requirement that shareholders
tender their shares to the Surviving
Corporation upon the occurrence of certain
operative events, such as prior to any transfer
of the shares, the death or divorce of the
shareholder, the termination of the shareholder
as a duly authorized agent of the Surviving
Corporation or the termination of the
shareholder as a Texas life insurance agent.
The Surviving Corporation Shareholders'
Agreement also contains certain provisions
concerning the S corporation status of the
Surviving Corporation. Further, pursuant to
the Surviving Corporation Shareholders'
Agreement, the Surviving Corporation has agreed
to declare and make distributions to all of its
shareholders, including the Management Group,
in a timely manner to allow them to pay their
federal income tax liability attributable to
their distributive share of the Surviving
Corporation's taxable income. See "SPECIAL
FACTORS--Contracts with Respect to Surviving
Corporation Common Stock."
Recommendation of the IRA The IRA Board, based upon the unanimous
Board and the Special recommendation of the Special Committee, has
Committee; Fairness of the determined that the terms of the proposed Merger
Merger . . . . . . . . . are fair to and in the best interests of the IRA
Shareholders, including Class B Shareholders who
do not own Class A Stock, and unanimously approved
the Merger Agreement. In arriving at its decision,
the IRA Board gave careful consideration to a
number of factors, including the written opinion
of PricewaterhouseCoopers LLP, formerly known
as Coopers & Lybrand LLP (the "Financial
Advisor"), financial advisor to the Special
Committee. ACCORDINGLY, THE IRA BOARD
UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR"
APPROVAL OF THE MERGER AGREEMENT. The Board of
Directors of First Command has also unanimously
approved the Merger Agreement. See "SPECIAL
FACTORS--Recommendation of the IRA Board and
the Special Committee; Fairness of the Merger."
Position of the The members of the Management Group have
Management Group and considered the process by which the Company
First Command . . . . determined the terms of the Merger and certain
additional factors examined by the Special
Committee and the IRA Board (described in
detail in "SPECIAL FACTORS--Recommendation of
the IRA Board and the Special Committee;
Fairness of the Merger). Members of the
Management Group believe that these factors,
when considered together, provide a reasonable
basis for them to believe, as they do, that the
Merger is fair to the IRA Shareholders,
including Class B Shareholders who do not own
Class A Stock.
The rules of the Securities and Exchange
Commission require First Command to express its
belief as to the fairness of the Merger to the IRA
Shareholders. While First Command has not
undertaken any independent evaluation of the
Merger from the standpoint of fairness to the
Company's shareholders, it has considered the
factors that were taken into account by the
Special Committee and the IRA Board (described in
detail in "SPECIAL FACTORS--Recommendation of the
IRA Board and the Special Committee; Fairness of
the Merger) and by the members of the Management
Group. Based solely on these factors, First
Command believes that the Merger is fair to the
IRA Shareholders, including Class B Shareholders
who do not own Class A Stock.
These beliefs should not, however, be construed as
a recommendation to the IRA Shareholders by the
members of the Management Group in their capacity
as shareholders or First Command to vote or
approve the Merger Agreement. See "SPECIAL
FACTORS--Position of the Management Group and
First Command." Members of the Management Group
and the officers, directors and principal
shareholders of First Command are executive
officers or directors of the Company and have an
interest in the contemplated Merger. See "SPECIAL
FACTORS--Interests of Certain Persons in the
Merger."
Opinion of the Financial On June 27, 1998, the Financial Advisor delivered
Advisor . . . . . . . . . its report and form of written opinion to the
Special Committee and the IRA Board to the effect
that as of such date and based upon and subject to
the assumptions, limitations and qualifications
set forth in such opinion, the Merger is fair to
the Class A Shareholders and the Class B
Shareholders from a financial point of view. The
Financial Advisor indicated that it was prepared
to deliver its written opinion in such form when
requested to do so by the Special Committee. The
Financial Advisor subsequently confirmed such
opinion by delivery of its written opinion, dated
as of the date of this Proxy Statement (the
"Financial Advisor Opinion"). A copy of the
Financial
5
<PAGE>
Advisor Opinion which sets forth the
assumptions made, procedures followed, other
matters considered and limits of its review is
attached hereto as Annex B. Shareholders are urged
to and should read the Financial Advisor Opinion
in its entirety. See "SPECIAL FACTORS--Opinion of
the Financial Advisor."
Interests of Certain Class B Shareholders should be aware in
Persons in the Merger . . considering whether to vote in favor of the Merger
that the Management Group, along with other
Class A/B Shareholders, have interests in the
Merger in addition to their interests as
shareholders of IRA generally. Those interests
relate to, among other things, the fact that
each of the members of the Management Group is
a Class A Shareholder and, as such, upon
consummation of the Merger will be a
shareholder of the Surviving Corporation,
unless such member of the Management Group
elects to seek appraisal rights for his Class A
Stock. Further, the IRA Board and the
executive officers of IRA will be the directors
and executive officers of the Surviving
Corporation upon consummation of the Merger.
As a result, each member of the Management
Group that is currently an officer or director
of the Company will retain his or her position
with the Surviving Corporation upon
consummation of the Merger. See "CERTAIN
INFORMATION CONCERNING IRA--Directors and
Executive Officers of IRA."
The Merger Agreement provides that IRA, and, after
the Effective Time (as defined below), the
Surviving Corporation, will indemnify (and advance
expenses to) each present and former director,
officer and employee of IRA and its subsidiaries
(the "Indemnified Parties") to the fullest extent
permitted under applicable law or under the
Articles of Incorporation and Bylaws of IRA and
the Surviving Corporation against any costs
incurred in connection with any claim, proceeding
or investigation relating to matters occurring
prior to or at the Effective Time, including the
transactions contemplated by the Merger Agreement.
See "THE PROPOSED MERGER--The Merger
Agreement--Indemnification."
Employment Agreements . . The IRA Board anticipates that the Surviving
Corporation will enter into employment agreements
with each of the Surviving Corporation
Shareholders who are also employees of the
Surviving Corporation. See "SPECIAL
FACTORS--Employment Agreements."
Certain Transactions in See "SPECIAL FACTORS--Certain Transactions in
IRA Common Stock . . . . Company Stock."
Accounting Treatment . . The Merger of the Company into First Command,
with First Command becoming the Surviving
Corporation, will be treated for accounting
purposes as a business combination accounted
for as a purchase. The conversion of each
share of Class A Stock of the Company issued
and outstanding into five shares of the
Surviving Corporation Voting Stock will, in
effect, result in the net assets of First
Command being recorded at their existing
carrying value in conformity with Generally
Accepted Accounting Principles ("GAAP"), since
the book value of First Command would
approximate fair value. The purchase of the
Class B Stock for the Class B Cash
Consideration will reduce shareholder's equity
of the Surviving Corporation by a like amount.
See "SPECIAL FACTORS--ACCOUNTING TREATMENT."
6
<PAGE>
Regulatory Filings and See "SPECIAL FACTORS--Regulatory Filings and
Approvals . . . . . . . . Approvals."
Certain Federal Income A Class A/B Shareholder should not recognize gain
Tax Consequences of the or loss upon the exchange of Class A Stock solely
Merger . . . . . . . . . into Surviving Corporation Voting Common Stock
and Class B Stock solely into Surviving
Corporation Nonvoting Common Stock, unless he
or she elects the cash option with respect to
his or her Class B Stock. Assuming the Class
A/B Shareholder does not elect the cash option,
his or her tax basis in shares of Surviving
Corporation Common Stock received pursuant to
the Merger should be the same as the tax basis
of the shares of Class A/B Shareholder
surrendered in exchange therefor. A Class A/B
Shareholder who elects the cash option should
consult his or her own tax advisor(s)
concerning the election of that option. A
Class B Shareholder that is not a Class A/B
Shareholder and is not related to any
shareholder of the Surviving Corporation should
recognize gain or loss equal to the difference
between the amount of the Class B Cash
Consideration and the Class B Shareholder's tax
basis in all the shares of Class B Stock
surrendered in exchange therefor. The Company
should not recognize any gain or loss as a
result of the Merger for U.S. federal income
tax purposes. See "SPECIAL FACTORS--Certain
Federal Income Tax Consequences of the Merger."
Ernst & Young LLP ("Ernst & Young") has provided
the Company with an opinion (the "Tax Opinion"),
attached as Annex F, with respect to certain
United States federal income tax consequences that
should arise from the Merger and the
implementation of the Mission Accomplishment Plan
(as described herein).
<CAPTION>
THE SPECIAL MEETING
<S> <C>
Time, Date and Place . . The Special Meeting will be held on ____________,
1998, _________ a.m., local time, at 4100 South
Hulen Street, Fort Worth, Texas 76109.
Purpose of the Special Class A Shareholders and Class B Shareholders will
Meeting . . . . . . . . . consider and vote upon a proposal to approve the
Merger Agreement between the Company and First
Command. Class A Shareholders and Class B
Shareholders, to the extent that Class B Stock is
permitted to vote on such matters, will also
consider and vote upon all other matters as may
properly be brought before the Special Meeting.
See "THE SPECIAL MEETING" and "THE PROPOSED
MERGER."
Record Date . . . . . . . Only shareholders of record of Class A Stock
and/or Class B Stock at the close of business on
____________, 1998 (the "Record Date"), are
entitled to notice of and to vote at the Special
Meeting. On such date, there were outstanding
25 shares of Class A Stock and ________________
shares of Class B Stock held by holders of record.
See "THE SPECIAL MEETING--Record Date."
Quorum . . . . . . . . . The presence, in person or by proxy, of the
holders of a majority of Class A Stock and the
holders of a majority of Class B Stock entitled to
vote at the Special Meeting is necessary to
constitute a quorum for the transaction of
business at such meeting. See "THE SPECIAL
MEETING--Quorum." Abstentions are counted for
purposes of determining whether a quorum exists at
the Special Meeting. However, proxies that
reflect abstentions and proxies that are not
returned will have the same effect as a vote
against approval of the Merger Agreement because
the affirmative vote of (i) the holders of at
least 66-2/3% of the outstanding shares
7
<PAGE>
of Class A Stock and Class B Stock, voting together
as a single class, (ii) the holders of at
least 66-2/3% of the outstanding shares of
Class A Stock and Class B Stock, each voting
separately as a class, and (iii) the holders of
at least a majority of the outstanding shares of
Class B Stock not held by Class A/B Shareholders,
is required to approve the Merger Agreement. See
"THE SPECIAL MEETING-- Votes Required; Voting
Rights."
Voting Rights; Votes Each share of Class A Stock and Class B Stock is
Required . . . . . . . . entitled to one vote with respect to the approval
of the Merger at the Special Meeting. With regard
to any other matters presented at the Special
Meeting, each share of Class A Stock will be
entitled to one vote, and the Class B Shareholders
will not be entitled to vote. See "THE SPECIAL
MEETING--Votes Required; Voting Rights."
As of the Record Date, there were ___________
shares of Class B Stock held by persons other
than the Management Group. _____________
shares of Class B Stock will be needed to
approve the Merger in addition to the number of
shares of Class B Stock held by Class A/B
Shareholders.
The affirmative vote of (i) the holders of at
least 66-2/3% of the outstanding shares of Class A
Stock and Class B Stock, voting together as a
single class, (ii) the holders of at least
66-2/3% of the outstanding shares of Class A Stock
and Class B Stock, each voting separately as a
class, and (iii) the holders of at least a
majority of the outstanding shares of Class B
Stock not held by Class A/B Shareholders, is
required to approve the Merger Agreement.
Security Ownership of As of the Record Date, the Management Group
the Management beneficially owns an aggregate of 16 shares of
Group . . . . . . . . . . Class A Stock and ___________ shares of Class B
Stock (representing approximately 64% and
__________% of the outstanding Class A Stock
and Class B Stock, respectively). Each member
of the Management Group intends to vote all
shares of Class A Stock and Class B Stock
beneficially owned by him or her for approval of
the Merger Agreement. See "THE SPECIAL
MEETING--Votes Required; Voting Rights." There
are five First Command Shareholders, who
beneficially own an aggregate of 1,000 shares
of First Command Common Stock (representing
100% of the outstanding shares of First Command
Common Stock). Each of the First Command
Shareholders is a member of the Management Group
and, other than Freda J. Payne, is (i) a member
of the executive committee of the IRA Board and
(ii) an executive officer or director of First
Command. To the knowledge of First Command,
each of the First Command Shareholders intends
to vote all shares of First Command Common
Stock beneficially owned by him or her for
approval of the Merger Agreement. See "MARKET
PRICE DATA, DISTRIBUTIONS AND SECURITY
OWNERSHIP OF FIRST COMMAND COMMON
STOCK--Security Ownership of Management and
Certain Beneficial Owners of First Command
Common Stock."
Revocability of Proxy . . Any IRA Shareholder who executes and returns a
proxy may revoke such proxy at any time before it
is voted by (i) notifying in writing the Corporate
Secretary of IRA at 4100 South Hulen Street, Fort
Worth Texas 76109, (ii) granting a subsequent
proxy or (iii) appearing in person and voting at
the Special Meeting. Attendance at the Special
Meeting will not in and of itself constitute
revocation of a proxy.
<CAPTION>
THE PROPOSED MERGER
<S> <C>
General . . . . . . . . . At the Effective Time, pursuant to the Merger
Agreement, the Company will be merged with and
into First Command in accordance with the
applicable provisions of the Texas Business
Corporation Act ("TBCA").
Closing; Effective Time . The closing of the Merger (the "Closing") will
take place on the first date that all
8
<PAGE>
conditions to the Merger shall be satisfied or waived
in accordance with the Merger Agreement or such date
as the Company and First Command may agree in
writing (the "Closing Date"). Pursuant to the
Articles of Merger to be filed with the Secretary
of State of the State of Texas, the Merger will
become effective at 12:01 a.m. on _________, 1998
(the "Effective Time"). See "THE PROPOSED
MERGER--Closing; Effective Time."
Conversion of Shares . . In the Merger, each share of Class A Stock of the
Company issued and outstanding at the Effective
Time (other than shares of Class A Stock held in
treasury by the Company), subject to and upon the
terms and conditions of the Merger Agreement, will
be converted into five shares of Surviving
Corporation Voting Stock. Further, (i) each share
of Class B Stock held by a Class B Shareholder
that is not a Class A/B Shareholder that is issued
and outstanding immediately prior to the Effective
Time, subject to and upon the terms and conditions
of the Merger Agreement, will be converted into
$28.24 in cash, without interest, and (ii) each
share of Class B Stock held by a Class A/B
Shareholder issued and outstanding immediately
prior to the Effective Time, subject to and upon
the terms and conditions of the Merger Agreement,
will be converted into one share of Surviving
Corporation Nonvoting Stock; provided, however
that each Class A/B Shareholder may elect to
receive, in lieu of receiving the Class B
Nonvoting Stock Consideration, the Class B Cash
Consideration for all shares of Class B Stock held
immediately prior to the Effective Time. Each
holder of First Command Common Stock, issued and
outstanding immediately prior to the Effective
Time, subject to and upon the terms and conditions
of the Merger Agreement, will receive one share of
Surviving Corporation Nonvoting Stock for each 25
shares of First Command Common Stock held by such
shareholder. See "THE PROPOSED MERGER--Conversion
of Shares."
Class A/B Shareholders Subject to certain allocation procedures, Class
Election; Procedures . . A/B Shareholders as of the Record Date will be
entitled to, in addition to receiving the Class A
Consideration for their Class A Stock, elect to
receive for each share of Class B Stock held
thereby either (A) the Class B Nonvoting Stock
Consideration or (B) the Class B Cash
Consideration. A Class A/B Shareholder may not
elect to receive both the Class B Nonvoting Stock
Consideration and the Class B Cash Consideration.
If such Class A/B Shareholder indicates that such
record holder has no preference as to the receipt
of Class B Nonvoting Stock Consideration or the
Class B Cash Consideration or fails to make a
timely election (a "Non-Election"), such Class A/B
Shareholder shall be deemed to have elected to
receive the Class B Nonvoting Stock Consideration.
The Company will use its best efforts to make a
Form of Election available to all persons who
become Class A/B Shareholders of record between
the date of mailing of this Proxy Statement and
the Election Deadline.
In the event a Form of Election is delivered to
the Paying Agent on behalf of a record holder of
Class B Stock (as defined below) who is a Class
A/B Shareholder (as defined below) prior to the
Election Deadline and not revoked prior to such
deadline, or if a Form of Election is delivered to
the Paying Agent after the Election Deadline, the
Company or the Surviving Corporation, as the case
may be, will deem such delivery a revocation of
any objections to the Merger previously filed with
the Company for purposes of exercising dissenter's
9
<PAGE>
rights and a waiver of any future rights to such
exercise. See "THE PROPOSED MERGER--Rights of
Dissenting Shareholders."
All such elections shall be made on the Form of
Election mailed to Class A/B Shareholders as of
the Record Date along with this Proxy Statement.
To be effective, a Form of Election must be
returned, properly completed, to the Paying Agent
no later than the Election Deadline. A Class A/B
Shareholder that fails to submit an effective Form
of Election prior to the Election Deadline shall
be deemed to have made a Non-Election.
Elections may be revoked or amended upon written
notice to the Paying Agent prior to the Election
Deadline. See "THE PROPOSED MERGER--Shareholder
Elections."
Charter and Bylaws . . . Pursuant to the Merger Agreement, the Articles of
Incorporation and Bylaws of First Command as in
effect immediately prior to the Effective Time
will be the Articles of Incorporation and Bylaws,
respectively, of the Surviving Corporation
following the Merger until duly amended as
provided therein and by applicable law. The Merger
Agreement provides that at the Effective Time the
Articles of Incorporation of the Surviving
Corporation shall be amended to provide for the
change of the name of the Surviving Corporation to
"Independent Research Agency for Life Insurance,
Inc." A copy of the Articles of Incorporation, as
proposed to be amended, and the Bylaws, as
proposed to be amended, of the Surviving
Corporation are attached hereto as Annex E. See
"THE PROPOSED MERGER--The Merger Agreement--
Charter and Bylaws."
Conditions to the Merger . The obligation of First Command to consummate the
Merger is subject to the satisfaction of a number
of conditions, including, among others (i) the
performance and compliance of IRA in all material
respects with all agreements, obligations and
conditions required by the Merger Agreement to be
performed or complied with by IRA on or prior to
the Closing Date; (ii) the holders of (A) two-
thirds (2/3) of the outstanding shares of Class A
Stock and Class B Stock, voting as a single class,
(B) two-thirds (2/3) of the outstanding shares
of Class A Stock and Class B Stock, each voting
separately as a class, and (C) holders of a
majority of the outstanding shares of Class B
Stock not held by Class A/B Shareholders, that
are eligible to vote at the Special Meeting shall
have voted for approval and adoption of the
Merger Agreement; (iii) the holders of two-thirds
(2/3) of the outstanding shares of First Command
Common Stock shall have voted for approval and
adoption of the Merger Agreement; (iv) all
approvals, consents, authorizations and waivers
from governmental and other regulatory agencies
and other third parties required to consummate
the transactions contemplated by the Merger
Agreement, which either individually or in the
aggregate, if not obtained, would have a
materially adverse effect on the financial
condition, results of operations or business of
IRA or would prevent consummation of the Merger
and the other transactions contemplated by the
Merger Agreement, shall have been obtained;
(v) on the Closing Date, there shall be no
effective injunction, writ, temporary restraining
order or any order of any nature issued by a court
of competent jurisdiction or other governmental
authority directing that the transactions provided
for in the Merger Agreement or any of them not be
consummated as so provided or imposing any
conditions on the consummation of the transactions
contemplated by the Merger Agreement that First
Command deems unacceptable in its sole discretion;
(vi) no suit, action, or other proceeding seeking
to restrain, prevent
10
<PAGE>
or change the transactions contemplated by the
Merger Agreement or otherwise questioning the
validity or legality of such transactions shall have
been instituted and be pending; and (vii) the
holders of no more than 20% of either of the
outstanding Class A Stock or the Class B Stock
shall have delivered notice of their intent to
exercise their right to dissent under the TBCA.
The obligation of IRA to consummate the Merger is
subject to the satisfaction of a number of
conditions, including, among others (i) the
performance and compliance of First Command with
all agreements, obligations and conditions
required by the Merger Agreement to be performed
or complied with by First Command on or prior to
the Closing Date; (ii) IRA shall not have received
written notice from the Financial Advisor that it
has withdrawn, revoked or modified its opinion as
to the fairness of the Merger to the IRA
Shareholders, from a financial point of view;
(iii) the holders of (A) two-thirds (2/3) of the
outstanding shares of Class A Stock and Class B
Stock, voting as a single class, (B) two-thirds
(2/3) of the outstanding shares of Class A Stock
and Class B Stock, each voting separately as a
class, and (C) holders of a majority of the
outstanding shares of Class B Stock not held by
Class A/B Shareholders, that are eligible to vote
at the Special Meeting shall have voted for
approval and adoption of the Merger Agreement;
(iv) the holders of two-thirds (2/3) of the
outstanding shares of First Command Common Stock
shall have voted for approval and adoption of the
Merger Agreement; (v) all approvals, consents,
authorizations and waivers from governmental and
other regulatory agencies and other third parties
required to consummate the transactions
contemplated by the Merger Agreement, which either
individually or in the aggregate, if not obtained,
would have a materially adverse effect on the
financial condition, results of operations or
business of IRA or would prevent consummation of
the Merger and the other transactions contemplated
by the Merger Agreement, shall have been
obtained; (vi) on the Closing Date, there shall
be no effective injunction, writ, temporary
restraining order or any order of any nature
issued by a court of competent jurisdiction or
other governmental authority directing that the
transactions provided for in the Merger Agreement
or any of them not be consummated as so provided
or imposing any conditions on the consummation of
the transactions contemplated by the Merger
Agreement that IRA deems unacceptable in its sole
discretion; (vii) no suit, action, or other
proceeding seeking to restrain, prevent or change
the transactions contemplated by the Merger
Agreement or otherwise questioning the validity
or legality of such transactions shall have been
instituted and be pending; and (viii) the holders
of no more than 20% of either of the outstanding
Class A Stock or the Class B Stock shall have
delivered notice of their intent to exercise
their right to dissent under the TBCA.
The conditions to each of the parties' obligations
to consummate the Merger are for the sole benefit
of such party and may be waived by such party in
whole or in part to the extent permitted by
applicable law. In the event a modification or
waiver by IRA or First Command is contemplated
that requires shareholder approval under
applicable law, a supplement to this Proxy
Statement will be distributed to IRA Shareholders,
and proxies will be resolicited. See "SPECIAL
MEETING OF IRA SHAREHOLDERS--Solicitation of
Proxies." Neither First Command nor IRA currently
contemplates waiving or modifying any of the
foregoing conditions. See "THE PROPOSED
MERGER--The Merger Agreement--Conditions to the
Merger."
11
<PAGE>
Termination . . . . . . . The Merger Agreement may be terminated and the
Merger abandoned at any time prior to the
Effective Time, (i) by mutual consent of the
Boards of Directors of First Command and IRA; (ii)
by either IRA or First Command if at the Special
Meeting, or any adjournment thereof, the
shareholders of IRA fail to adopt and approve the
Merger; (iii) by either IRA or First Command if
the shareholders of First Command fail to adopt
and approve the Merger; and (iv) by either IRA or
First Command if a court of competent jurisdiction
or governmental, regulatory or administrative
agency or commission shall have issued an order,
decree or ruling or taken any other action, in
each case permanently restraining, enjoining or
otherwise prohibiting the transactions
contemplated by the Merger Agreement, and such
order, decree, ruling or other action shall have
become final and nonappealable. See "THE PROPOSED
MERGER--The Merger Agreement--Termination."
Rights of Dissenting If the Merger is consummated, shareholders that
Shareholders . . . . . . comply with certain requirements of the TBCA
("Dissenting Shareholders") will be entitled to
exercise their appraisal rights with regard to
their shares of Class A Stock or Class B Stock in
accordance with the procedures set forth in
Articles 5.12 and 5.13 of the TBCA. Shareholders
wishing to exercise dissenters' rights must (i)
not vote in favor of approval of the Merger
Agreement (which would include submitting a signed
proxy without voting instructions); (ii) deliver
to the Company, prior to the Meeting, written
notice of their objection to the Merger stating
that they will exercise their right to dissent
under the TBCA if the Merger is effected; and
(iii) strictly comply with the other requirements
of the TBCA. Failure to follow the procedures
required by Articles 5.12 and 5.13 of the TBCA may
result in the loss of dissenters' rights (in which
event a shareholder will be entitled to receive
the Merger Consideration with respect to such
shareholder's shares of Class A Stock or Class B
Stock in accordance with the Merger Agreement).
See "THE PROPOSED MERGER--Rights of Dissenting
Shareholders."
</TABLE>
12
<PAGE>
SELECTED FINANCIAL DATA OF IRA
The following table presents summary historical financial data of IRA and
its consolidated subsidiaries for the periods indicated. The related data for
the five years ended September 30, 1997 are derived from the audited financial
statements of IRA and its subsidiaries. IRA's Annual Report on Form 10-K for
the fiscal year ended September 30, 1997 (the "IRA 10-K") is incorporated by
reference in this Proxy Statement and enclosed herewith. The financial data as
of and for the nine months ended June 30, 1998 and 1997 were derived from IRA's
unaudited quarterly financial statements included in IRA's Quarterly Report on
Form 10-Q for the nine months ended June 30, 1998 and incorporated by reference
in this Proxy Statement and enclosed herewith, and, in the opinion of IRA's
management, reflect all adjustments (consisting of normal recurring accruals)
necessary for a fair presentation of such data. The data for the nine months
ended June 30, 1998 and 1997 are not necessarily indicative of results of
operations for the entire year. The data should be read in conjunction with the
consolidated financial statements, related notes and other financial
information of IRA included and incorporated by reference in this Proxy
Statement.
<TABLE>
<CAPTION>
Year Ended September 30,
--------------------------------------------------------------------------
1997 1996 1995 1994 1993
-------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Commissions revenue . . . . . $ 122,329,601 $ 116,632,069 $ 108,443,810 $ 100,491,633 $ 93,767,954
Bank operations . . . . . . . 58,458 -0- -0- -0- -0-
Operating expenses . . . . . (113,528,791) (109,040,366) (102,510,314) (93,421,636) (86,224,269)
-------------- -------------- -------------- -------------- --------------
Operating income . . . . . . 8,859,268 7,591,703 5,933,496 7,069,997 7,543,685
Other income . . . . . . . . 5,216,114 3,719,793 4,201,478 3,464,253 3,280,284
-------------- -------------- -------------- -------------- --------------
Income before income taxes 14,075,382 11,311,496 10,134,974 10,534,250 10,823,969
Income taxes . . . . . . . . (4,639,886) (3,842,639) (3,417,024) (3,561,062) (3,567,212)
-------------- -------------- -------------- -------------- --------------
Net income . . . . . . . . . $ 9,435,496 $ 7,468,857 $ 6,717,950 $ 6,973,188 $ 7,256,757
-------------- -------------- -------------- -------------- --------------
-------------- -------------- -------------- -------------- --------------
Basic earnings per share . . $ 10.06 $ 7.97 $ 7.18 $ 7.51 $ 7.65
<CAPTION>
As of September 30,
--------------------------------------------------------------------------
1997 1996 1995 1994 1993
-------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
Balance Sheet Data:
Current assets . . . . . . . $ 23,860,692 $ 23,926,327 $ 21,367,029 $ 20,067,223 $ 19,700,911
Property and equipment . . . 12,145,961 12,614,194 13,303,488 10,883,370 10,918,721
Bank assets . . . . . . . . . 22,062,980 -0- -0- -0- -0-
Other assets . . . . . . . . 67,826,675 52,149,411 44,964,482 35,145,007 23,970,401
-------------- -------------- -------------- -------------- --------------
Total assets . . . . . . $ 125,896,308 $ 88,689,932 $ 79,634,999 $ 66,095,600 $ 54,590,033
-------------- -------------- -------------- -------------- --------------
-------------- -------------- -------------- -------------- --------------
Current liabilities . . . . . $ 33,395,193 $ 27,742,525 $ 27,243,419 $ 26,644,967 $ 22,211,796
Bank liabilities . . . . . . 13,437,520 -0- -0- -0- -0-
Long-term obligations . . . . 25,127,512 16,998,700 12,376,835 7,256,834 3,256,623
Equity . . . . . . . . . . . 53,936,083 43,948,707 40,014,745 32,193,799 29,121,614
-------------- -------------- -------------- -------------- --------------
Total liabilities and
equity. . . . . . . . . . . $ 125,896,308 $ 88,689,932 $ 79,634,999 $ 66,095,600 $ 54,590,033
-------------- -------------- -------------- -------------- --------------
-------------- -------------- -------------- -------------- --------------
Per Share Data:
Book value per share . . . . $ 51.20 $ 44.72 $ 39.70 $ 35.79 $ 29.55
Cash dividends per share . . (7.73) (7.63) (4.50) (4.88) (7.31)
Unrealized gains per share,
net (1). . . . . . . . . . . (15.23) (10.05) (8.16) (5.79) -
-------------- -------------- -------------- -------------- --------------
Per share price (2) . . . . . $ 28.24 $ 27.04 $ 27.04 $ 25.12 $ 22.24
-------------- -------------- -------------- -------------- --------------
-------------- -------------- -------------- -------------- --------------
<CAPTION>
Nine Months Ended
June 30,
----------------------------
1998 1997
-------------- -------------
<S> <C> <C>
Income Statement Data:
Commissions revenue . . . . . $ 95,006,492 $ 90,834,961
Bank operations . . . . . . . 1,087,339 41,995
Operating expenses . . . . . (92,511,232) (84,944,354)
-------------- -------------
Operating income . . . . . . 3,582,599 5,932,602
Other income . . . . . . . . 7,416,922 5,472,678
-------------- -------------
Income before income taxes 10,999,521 11,405,280
Income taxes . . . . . . . . (3,467,015) (3,728,593)
-------------- -------------
Net income . . . . . . . . . $ 7,532,506 $ 7,676,687
-------------- -------------
-------------- -------------
Basic earnings per share. . . $ 7.64 $ 8.23
<CAPTION>
As of June 30,
----------------------------
1998 1997
-------------- -------------
<S> <C> <C>
Balance Sheet Data:
Current assets . . . . . . . $ 13,750,383 $ 23,860,692
Property and equipment . . . 12,668,931 12,145,961
Bank assets . . . . . . . . . 59,685,034 22,062,980
Other assets . . . . . . . . 78,028,243 67,826,675
-------------- -------------
Total assets . . . . . . $ 164,132,591 $ 125,896,308
-------------- -------------
-------------- -------------
Current liabilities . . . . . $ 33,962,103 $ 33,395,193
Bank liabilities . . . . . . 50,874,747 13,437,520
Long-term obligations . . . . 27,613,452 25,127,512
Equity . . . . . . . . . . . 51,682,289 53,936,083
-------------- -------------
Total liabilities and
equity. . . . . . . . . . . $ 164,132,591 $ 125,896,308
-------------- -------------
-------------- -------------
Per Share Data:
Book value per share . . . . $ 54.55 $ 50.30
Cash dividends per share . . - -
Unrealized gains per share,
net (1). . . . . . . . . . . (18.27) (14.78)
-------------- -------------
Per share price (2) . . . . . (3) (3)
-------------- -------------
-------------- -------------
</TABLE>
- --------------------
(1) Beginning in fiscal year 1994, as required by Statement of Financial
Accounting Standards ("SFAS") 115 "Accounting for Certain Investments in
Debt and Equity Securities," the Company accounted for unrealized
investment gains in its balance sheet's equity section, net of federal
income taxes. Since the appreciation is unrealized, it is not, and has
never been, included in the determination of the Company's per share
price.
(2) The increase in per share price over the previous year's share price is
added incrementally, 1/12th per month for the ensuing 12 months, to the
current September 30 share price (based upon the prior year's
computation). For example, the book value per share exclusive
13
<PAGE>
of unrealized gains at September 30, 1996, less the dividends declared as
of that date, resulted in a Class B Stock price per share at September 30,
1997 of $27.04. The increase in book value per share, exclusive of
unrealized gains (and net of the fiscal 1996 dividend paid in December
1996), for the fiscal year ended September 30, 1997 was $8.93, of which
$7.73 was paid as a dividend in December 1997. The remaining $1.20 per
share has been allocated at $0.10 per month throughout fiscal year 1998,
which will result in a per share price of $28.24 as of September 1998.
(3) The share price at interim periods is based on the prior year's book value
per share, net of unrealized gains, net of tax, and dividends per share.
Current year net income is either paid as a dividend as of the end of the
year or included in the stock price the following year (see Note 2 above).
14
<PAGE>
SELECTED FINANCIAL DATA OF FIRST COMMAND
The following table presents summary historical financial data of First
Command as of the periods indicated. The historical financial data as of May
31, 1998, are derived from First Command's audited balance sheet enclosed
herewith. The historical financial data as of June 30, 1998, are derived from
First Command's unaudited balance sheet enclosed herewith. Because First
Command had only three months of operations as of June 30, 1998, only balance
sheet data have been presented. The data should be read in conjunction with
the balance sheet, related notes and other financial information of First
Command included elsewhere in this Proxy Statement. See "FIRST COMMAND
FINANCIAL CORPORATION BALANCE SHEET."
<TABLE>
<CAPTION>
AS OF AS OF
MAY 31, 1998 JUNE 30, 1998
------------ -------------
<S> <C> <C>
Balance Sheet Data:
Current assets. . . . . . . . . . . $ 893 $ 1,000
Total assets. . . . . . . . . . . . 13,203 34,265
Current liabilities . . . . . . . . 12,310 -0-
Stockholders' equity. . . . . . . . 893 (6,746)
Per Share Data:
Book value per share. . . . . . . . $ 0.89 $ (6.75)
Cash dividends per share. . . . . . -- --
</TABLE>
15
<PAGE>
SUMMARY PRO FORMA DATA
The following table sets forth selected unaudited pro forma financial data
derived from the Pro Forma Condensed Consolidated Financial Statements included
under the section "PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS OF
IRA." The pro forma balance sheet data and the pro forma statement of
operations data gives effect to the Merger as if it were consummated on June
30, 1998 and October 1, 1996, respectively. The pro forma financial information
is based on assumptions that management believes are reasonable and such
information is presented for comparative and informational purposes only. The
pro forma financial information does not purport to represent what the Company's
results of operations or financial condition would have actually been had the
Merger in fact occurred on such dates or to project the Company's results of
operations for any future period or financial condition of any future date.
This table should be read in conjunction with the Pro Forma Condensed
Consolidated Financial Statements included under the section "PRO FORMA
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS OF IRA" and the IRA 10-K, the
Company's Quarterly Reports on Form 10-Q for the nine months ended June 30,
1998, the Consolidated Financial Statements of the Company and related notes
thereto, the Balance Sheet of First Command and related notes thereto and the
other financial information contained in the documents included or incorporated
by reference herein. See "INCORPORATION BY REFERENCE."
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC. AND
FIRST COMMAND CORPORATION
SELECTED UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL DATA
<TABLE>
<CAPTION>
FOR THE YEAR ENDED FOR THE NINE MONTHS
SEPTEMBER 30, 1997 ENDED JUNE 30, 1998
------------------ -------------------
<S> <C> <C>
Income Statement Data:
Commissions revenue . . . . . . . . . . . . . $ 122,329,601 $ 95,006,492
Bank operations . . . . . . . . . . . . . . . 58,458 1,087,339
Operating expenses. . . . . . . . . . . . . . (126,484,173) (102,665,308)
---------------- ------------------
Operating income. . . . . . . . . . . . . . . (4,096,114) (6,571,477)
Other income. . . . . . . . . . . . . . . . . 4,096,114 6,571,477
---------------- ------------------
Income before income taxes. . . . . . . . . . -- --
Income taxes. . . . . . . . . . . . . . . . . -- --
---------------- ------------------
Net income. . . . . . . . . . . . . . . . . . $ -- $ --
---------------- ------------------
---------------- ------------------
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
AS OF
JUNE 30, 1998
-------------
<S> <C>
Balance Sheet Data:
Current assets. . . . . . . . . . . . . . . . $ 12,608,585
Property and equipment. . . . . . . . . . . . 12,695,701
Bank assets . . . . . . . . . . . . . . . . . 59,685,034
Other assets. . . . . . . . . . . . . . . . . 78,034,738
-------------
Total assets . . . . . . . . . . . . . . $ 163,024,058
-------------
-------------
Current liabilities . . . . . . . . . . . . . $ 33,962,103
Bank liabilities. . . . . . . . . . . . . . . 50,874,747
Long-term obligations . . . . . . . . . . . . 42,240,784
Equity. . . . . . . . . . . . . . . . . . . . 35,946,058
-------------
Total liabilities and equity . . . . . . $ 163,024,058
-------------
-------------
Book value per share (1). . . . . . . . . . . $ 99.96
</TABLE>
(1) Pro forma book value per share does not include the anticipated charge
to equity to reflect the Mission Accomplishment Plan compensation
that is expected to be recorded for subsequent periods. Per the Pro
Forma Condensed Consolidated Income Statement, the charge to equity
for the nine months ending June 30, 1998 is expected to have been
$10,154,076.
<TABLE>
<CAPTION>
Per share data:
First Command
Independent Financial Pro Forma
Research Agency Corporation Combined
--------------- ------------- ---------
<S> <C> <C> <C>
Basic earnings per share
Fiscal year ended 9/30/97 $10.06 $ 0.00 $0.00
Nine months ended 6/30/98 7.64 (7.75) 0.00
Dividends per share
Fiscal year ended 9/30/97 7.73 0.00 0.00
Nine months ended 6/30/98 0.00 0.00 0.00
Book value per share
At June 30, 1998 54.55 (6.75) 99.96
</TABLE>
17
<PAGE>
SPECIAL FACTORS
BACKGROUND OF THE MERGER
In early 1997, because of the costs associated with its being a public
company and the competitive disadvantages of having to make public
disclosures in Exchange Act filings, the Company began to consider becoming a
privately-held company pursuant to a transaction in which the registration of
the Class B Stock under the Exchange Act would be terminated. The Company is
a managing general insurance agency that sells life insurance to United
States military personnel. Most of the Company's competitors are not public
companies, so they do not have to make public disclosures regarding their
earnings, products, relationships with insurance carriers and other matters.
Consequently, certain information about the Company that is publicly
available is not similarly available about the Company's competitors. In the
event that the Merger is approved by the Company's shareholders, the Company
will not have to make public disclosures that can be competitively
disadvantageous. Additionally, the costs associated with compiling
information creates an additional disadvantage to IRA as compared to the
Company's competitors that do not have similar public filing requirements.
These costs include the compilation of the information for such filings, the
expense of attorneys and accountants and the management time required to make
such filings.
During this period, Ernst & Young advised the Company
that, based upon the facts presented at that time, upon the elimination of the
Class B Stock, the Company could be eligible for S corporation status. In the
ensuing months of 1997, the Company continued to study the feasibility and
ramifications of such a transaction. The Company selected Ernst & Young based
on its experience with respect to tax issues. Ernst & Young has been engaged
by the Company as its principal independent accounts. The Company will pay
Ernst & Young a fee of $150,000 with respect its engagement as the Company's
principal independent accountants for its fiscal year ended September 30,
1998. In addition, Ernst & Young issued the Tax Opinion for the Company. See
"--Certain Federal Income Tax Considerations--Tax Opinion Engagement."
In March 1998, Ernst & Young, the principal independent accountants for
the Company and First Command, prepared a report for the Company that
summarized the major advantages and disadvantages of IRA electing S
corporation status. The letter contained an example of the tax savings
available to IRA, assuming IRA had elected to be taxed as an S corporation
for federal income tax purposes for the tax year ended September 30, 1998. An
example in the letter indicated that the Company and its shareholders combined
would pay approximately 54% less income tax by electing S corporation status,
assuming all items of income and expense are treated equally by taxpayers of
the S corporation and C corporation and the Company declares a dividend of all
of its income to the shareholders. In addition, the example assumes a tax rate
of 39.6% for the shareholders of the S corporation. The letter also provided
certain cautionary language regarding potential built-in gains tax, excess
passive income tax and eligibility requirements for electing S corporation
status. In summary, the letter stated that, after reviewing the dividend
history of IRA (pursuant to which all of its earnings are paid as dividends to
its shareholders), the benefits discussed in the letter provide a significant
level of support for the Company's electing S corporation status. A copy of
this report has been filed as an exhibit to the Schedule 13E-3, and it will
be made available for inspection and copying at the principal executive
offices of the Company during its regular business hours by any IRA
Shareholder or his representative who has been so designated in writing.
Alternatively, the Company will transmit a copy of the report to such IRA
Shareholder (or his or her designated representative) upon written request
and at the expense of such IRA Shareholder.
Additionally, during 1997 the Company established plans to construct and
operate a parking garage for employees of the Company and current and future
tenants in IRA's building. Management was concerned, however, about the
potential liability of IRA in connection with the construction and operation of
a parking garage. As a result, First Command was formed on April 1, 1998, to
limit this potential liability of IRA. At its inception, First Command
qualified for, and elected, S corporation status. See "CERTAIN INFORMATION
CONCERNING FIRST COMMAND--Business."
First Command was formed to construct and manage the parking garage
facilities adjacent to the building currently occupied by IRA. The parking
garage facilities will be used almost exclusively by IRA and its affiliates'
employees and independent contractors. The Company is leasing the land to First
Command for a nominal payment of $1.00 per year. First Command is leasing all
of the parking spaces in the Garage to IRA for a base rent of $51,250.00 per
month, which will provide First Command with funds to service its debt and meet
operating costs of the parking garage. IRA will pay all real estate and
personal property taxes associated with the garage and land that it occupies.
IRA will sublease some of the parking spaces to other tenants who occupy IRA's
office building. The contractual arrangements between First Command and IRA do
not result in a financial benefit to First Command or a financial detriment to
IRA. The terms of the agreements are at least as beneficial to the Company as
would have been obtained in an arms-length transaction with an unaffiliated
third party. See "CERTAIN INFORMATION CONCERNING FIRST COMMAND--Business" and
"CERTAIN INFORMATION CONCERNING FIRST COMMAND--Properties."
In April 1998, management of the Company determined that it would be in the
best interests of the Company to further investigate the deregistration of the
Class B Stock, thereby eliminating the Company's reporting requirements under
the Exchange Act and minimizing the administrative duties that correspond with
such reporting requirements. Additionally, management believed that the Company
would qualify for S corporation status after the elimination of its Class B
Stock.
On April 27, 1998, at a special meeting of the IRA Board attended by all
directors except Naomi K. Payne, after a presentation by Lamar C. Smith,
Chairman of the Board and Chief Executive Officer of IRA, and Martin R. Durbin,
Chief Financial Officer of IRA, the IRA Board adopted by a unanimous vote of all
directors present a resolution authorizing and instructing the officers of the
Company to pursue a plan that would allow the Company to achieve operating
efficiencies through elimination of the Class B Stock and its subsequent
qualification for S corporation status. The Company then retained Haynes and
Boone, LLP, Fort Worth, Texas as special securities and tax counsel. The
Company also engaged Ernst & Young LLP, as tax advisors. The Company selected
these firms because of their reputation in corporate and securities and tax law
matters.
The IRA Board held a special meeting on May 8, 1998, which was attended by
all directors other than Mr. Arnold Punaro. Because Texas law requires all
directors of a Texas insurance company be licensed insurance agents and because
Mr. Punaro was not a licensed insurance agent, Mr. Punaro resigned and became an
advisory director of the Company at this special meeting. Martin R. Durbin and
Lamar C. Smith updated the IRA Board regarding the plan to achieve the IRA
Board's objectives of eliminating its Class B Stock and qualifying for S
corporation status. As part of this plan, management contemplated that, upon
the elimination of the Class B Stock, IRA should qualify as an S corporation.
As a result, in order to achieve administrative simplicity associated with the
elimination of costs and time necessary to prepare two sets of tax returns and
to reduce compliance responsibilities and reporting requirements that would
result from the deregistration of the Class B Stock, management of IRA and First
Command proposed a merger between IRA and First Command, pursuant to which IRA
would merge with and into First Command, which would be the surviving
corporation.
Following this presentation and a discussion, the IRA Board determined
that it would be advisable to establish a special committee of independent
directors (the "Special Committee") to determine whether the terms of the
proposed transaction were fair to and in the best interests of the IRA
Shareholders, which includes the Class B Shareholders who do not own Class A
Stock (and certain Class A/B Shareholders who are not officers or directors).
As the IRA Board had no members that did not own Class A Stock or Class B
Stock, pursuant to the Bylaws of IRA, the IRA Board elected James J. Ellis to
serve in the class of directors whose term expires on December 31, 1999, and
Logan Dickinson to
18
<PAGE>
serve in the class of directors whose term expires on December 31, 2000. Mr.
Ellis and Mr. Dickinson were also appointed as the members of the Special
Committee.
Mr. Ellis and Mr. Dickinson were elected to fill two
vacancies that existed on the IRA Board and have agreed to serve on the IRA
Board at least through the end of their respective terms. Both Mr. Ellis and
Mr. Dickinson were selected to serve as directors and members of the Special
Committee because each has many years of experience in the insurance
industry. Mr. Dickinson also has extensive experience in the investment
industry. Messrs. Ellis and Dickinson had (i) no prior relations with the
Company or its affiliates and (ii) little, if any, knowledge of the Company's
operations, prior to their election to the IRA Board. Each of Messrs. Ellis
and Dickinson is paid $1,000 per Special Committee meeting, unless such
meeting is held in conjunction with or immediately prior to a full meeting of
the IRA Board, in which case each receives $500 per Special Committee
meeting. Each of them will receive compensation in his capacity as a member
of the IRA Board to the same extent as other members of the IRA Board receive
compensation.
The Special Committee met on May 18, 19, 20 and 26
for the purposes of holding initial discussions regarding the Merger,
engaging Gardere & Wynne, LLP, Dallas, Texas, as independent legal counsel
for the Special Committee and interviewing potential financial advisors.
During each of these meetings, the Special Committee members, among
themselves, with legal counsel, and with prospective financial advisors,
discussed their understanding of the Company's history and business, the
proposed structure and effect of the Merger and the incentive compensation
plans in effect and to be implemented by the Company. At its meeting on May
26, 1998, the Special Committee determined to engage Coopers & Lybrand LLP,
now known as PricewaterhouseCoopers LLP, as the Financial Advisor, reviewed
the Financial Advisor's proposed engagement letter and directed the Special
Committee's independent legal counsel to review the proposed engagement
letter and provide comments to the Financial Advisor. The engagement letter
was finalized on and dated June 4, 1998, and executed on behalf of the
Special Committee and the Company on June 8, 1998.
The Financial Advisor had no prior material relationships with the
Company, its affiliates or members of the Special Committee. The Company has
engaged the Financial Advisor to assist the Company in making its information
systems Year 2000 compliant. The Financial Advisor will be paid $74,000 as
compensation for such services.
On June 4, 1998, the Special Committee met by telephone conference call
with representatives of the Financial Advisor and the Special Committee's
independent legal counsel for further discussions regarding the Merger and to
determine the due diligence plan and schedule for the Financial Advisor's
engagement. The primary purpose of the meeting was to ensure that the
Financial Advisor had sufficient information to form the foundation of an
effective due diligence effort and to gain the benefit of the Special
Committee's analysis in progress of the Company. The Special Committee
members discussed in more detail with the representatives of the Financial
Advisor the Special Committee's growing understanding of the business of the
Company, the proposed terms of the Merger and the Mission Accomplishment Plan
anticipated to be implemented by the Company. On June 5, 1998,
representatives of the Financial Advisor and the Special Committee's
independent legal counsel began a due diligence review of documents and
information related to the Company and the Merger and due diligence
discussions with Martin Durbin, the Company's Chief Financial Officer, and
Robert F. Watson, the Company's General Counsel. On June 10, 1998, the
Special Committee again met by telephone conference call with representatives
of the Financial Advisor and the Special Committee's independent legal
counsel to discuss the schedule for the Financial Advisor's review and
analysis, the status of the due diligence and the detailed terms of the
Merger, which had been distributed to the Special Committee and the Financial
Advisor by the Company.
On June 15, 1998, the Special Committee, its independent legal counsel
and representatives of the Financial Advisor met at the Company's offices for
due diligence meetings with Lamar Smith, the Company's Chief Executive
Officer, James Lanier, the Company's Chief Operating Officer, Mr. Watson, Mr.
Durbin and Howard Crump, Director of Marketing (Agency Relations). During
this meeting, the Company's management presented a detailed overview of the
Company's history, business and philosophy, as well as the Company's intent
in proposing the Merger, and responded to questions from the Special
Committee and the Financial Advisor. Messrs. Watson and Durbin outlined the
proposed structure and terms of the Merger, the effect on the IRA
Shareholders as a whole and on each category of IRA Shareholders. Messrs.
Watson and Durbin also responded to detailed questions from the Special
Committee and the Financial Advisor.
During the meeting on June 15, 1998, the members of the Special
Committee and representatives of the Financial Advisor interviewed an agent
and a district agent, each of whom is a Class B Shareholder and has been
associated with the Company for approximately 20 years and 6 years,
respectively. During this interview, the agent and district agent were asked
questions regarding the Company's operations, their respective positions with
the Company, their roles as Class B Shareholders and the restrictive nature
of the Class B Shareholder Agreements, and their understanding with respect
to the proposed transaction. The agents informed the Special Committee that
they viewed the Class B Stock as compensatory in nature. Based on the
Special Committee's and the Financial Advisor's discussions with the Company
and other due diligence, the Special Committee believed these two individuals
were representative of the Company's agents, the agent being a long-time and
larger Class B Shareholder and the district agent being a more recent and
smaller Class B Shareholder. The Special Committee did not assign, and did
not find it practicable to assign, a specific weight to these discussions,
but considered them along with other due diligence by the Special Committee
with respect to the Company and its operations and shareholders.
On June 24, 1998, the Special Committee, representatives of the
Financial Advisor and the Special Committee's independent legal counsel met
by telephone conference call to discuss the Financial Advisor's preliminary
analysis regarding the Merger and the rendering by the Financial Advisor of a
fairness opinion. The Special Committee members and the representatives of
the Financial Advisor discussed in detail the effect of the Merger on the IRA
Shareholders and on each category of the IRA Shareholders.
Prior to the June 24, 1998, meeting, the Financial Advisor provided the
Special Committee with a package of information marked "DRAFT," for
discussion at the meeting. The package consisted of an Executive Summary, a
Transaction Summary and Risk Assessment, a draft form of fairness opinion,
and information for joining the planned conference call. The discussion at
the meeting centered around the information in the draft package.
The Executive Summary included in the draft package described the
proposed transaction, enumerated actions performed or then being undertaken
by the Financial Advisor, and set forth the Financial Advisor's preliminary
conclusion that the transaction was fair from a financial point of view. The
Financial Advisor's actions, as outlined in the Executive Summary, included a
discounted cash flow analysis provided to it by the Company (without being
impacted for marketability or share restriction considerations), analysis of
a limited set of companies that might be considered meaningful comparable
companies and a comprehensive transaction search that yielded a very limited
set of transactions that might be considered comparable transactions. See
"SPECIAL FACTORS--Opinion of Financial Advisor."
The Transaction Summary and Risk Assessment included in the draft
package first set forth background information regarding the Company and a
detailed description of the proposed transaction. The Transaction Summary
outlined the historical purchases of the Company's Class B Stock, the lack of
a public market for the Class B Stock and the proposed adoption of the
Mission Accomplishment Plan. The Risk Assessment outlined various issues to
be brought to the attention of the Financial Advisor's internal fairness
opinion committee, including (i) the desire to preserve S corporation status,
which is not assured, (ii) the inability of former Class B Shareholders to
vote on material corporate actions, (iii) the change in tax treatment for the
Class B Shareholders from capital appreciation with the Class B Stock versus
ordinary income with stock appreciation rights for those Class B Shareholders
holding MAP units, (iv) the Financial Advisor's understanding that at least
one Class A Shareholder would exercise dissenter's rights (although no oral
or written notice of such intent has been received by the Company), and (v)
the option of Class A/B Shareholders to elect different treatment than the
Class B Shareholders in the Merger.
The exhibits in the draft package to the Transaction Summary and Risk
Assessment included the following: (i) a graphic presentation of the proposed
transaction prepared by management; (ii) pre-transaction features in the form
of an analysis prepared by the Financial Advisor of the terms of the various
shareholder agreements governing the rights of the IRA Shareholders; (iii)
post-transaction features in the form of a description of the Surviving
Corporation Stock from a recent draft of the proxy statement; (iv) the
Financial Advisor's pre- and post-transaction analysis; and (v) a list of
Class B Shareholders provided by the Company.
The Financial Advisor's pre- and post-transaction analysis included in
the draft package consisted of the following items: (i) a summary prepared by
the Financial Advisor of the features of each of the three groups of IRA
Shareholders both before and after the proposed transaction; (ii) a
shareholder value summary for each group of shareholders based upon holding
period and basis in stock showing status quo value per share, proposed new
structure value per share or unit equivalent, and percent increase value per
share or unit equivalent; and (iii) discounted cash flow models for the
status quo and the proposed new structure for each group of shareholders
based upon basis in stock.
The final substantive item included in the draft package was a draft
form of fairness opinion prepared by the Financial Advisor for the Special
Committee's review. The draft form included the Financial Advisor's
preliminary conclusion that the proposed transaction was fair from a
financial point of view.
A copy of the above-described materials provided by the Financial
Advisor to the Special Committee in connection with its June 24, 1998 meeting
has been filed as an exhibit to the Schedule 13-E-3, and it will be made
available for inspection and copying at the principal executive offices of
the Company during its regular business hours by any IRA Shareholder or his
representative who has been so designated in writing. Alternatively, the
Company will transmit a copy of the report to such IRA Shareholder (or his or
her designated representative) upon written request and at the expense of
such IRA Shareholder.
At the meeting of the Special Committee on June 27, 1998, which was held
immediately prior to the IRA Board meeting, the Financial Advisor provided
the members of the Special Committee and the Special Committee's independent
legal counsel with its "Presentation to the Board of Directors" and the
proposed form of fairness opinion the Financial Advisor was prepared to
render when requested to do so. The Financial Advisor also indicated that it
was prepared to make such a presentation to the IRA Board.
19
<PAGE>
On June 27, 1998, the IRA Board held a special meeting. During the
special meeting of the IRA Board, the Special Committee made a presentation
regarding its review of the Merger. At the conclusion of such presentation,
the Special Committee announced that it had determined that the Merger was
fair to the IRA Shareholders, including the Class B Shareholders who do not
own Class A Stock. Subsequent to the presentation of the Special Committee,
the IRA Board approved the Merger.
The IRA Board based the amount of the Class B Cash Consideration on the
methodology used by the Company in previous years to determine the price of
Class B Stock in its offerings to agents of the Company, using September 1998
as the month of the stock price calculation. This methodology has been used
by the Company to establish each purchase and sales price for shares of Class
B Stock since 1981. See "DESCRIPTION OF IRA CAPITAL STOCK--Class B Stock" and
note 2 to "SELECTED FINANCIAL DATA OF IRA."
The IRA Board decided that Class A Shareholders who own Class B Stock
should be entitled to receive Surviving Corporation Nonvoting Stock pursuant
to the Merger because the Class A/B Shareholders otherwise would be taxed at
ordinary income tax rates (rather than at capital gain tax rates) if they
could receive only Class B Cash Consideration for the Class B Stock pursuant
to the Merger. The IRA Board, which will be the Board of the Surviving
Corporation upon consummation of the Merger, anticipates that the Surviving
Corporation, subject to the fiduciary duties of the Board of Directors of the
Surviving Corporation and the ongoing financial condition of the Surviving
Corporation, will declare and pay dividends that are pro rata to all
shareholders on the Surviving Corporation Common Stock that are intended to
approximate the income that the Class A/B Shareholder would have received
from the competitive reinvestment of the Class B Cash Consideration, taking
into account income tax considerations. See "--Certain Effects of the
Merger; Plans for the Company after the Merger." However, if a Class A/B
Shareholder would prefer not to receive the Surviving Corporation Nonvoting
Stock for such shareholder's Class B Stock pursuant to the Merger, the IRA
Board has provided the Class A/B Shareholders with the alternative to receive
the Class B Cash Consideration instead of the Surviving Corporation Nonvoting
Stock.
The IRA Board determined that the consideration to be paid to the
holders of Class A Stock was fair because the Class A Stock is the voting
class of common stock and is primarily held by members of the IRA Board and
officers of the Company.
On September 4, 1998, Debra S. Payne, a Class A/B Shareholder, delivered
a letter to Carroll H. Payne II, Freda J. Payne and Naomi K. Payne (in this
paragraph, the "Paynes"), who are also Class A/B Shareholders, demanding that
they tender their shares of Class A Stock to Debra S. Payne, pursuant to the
terms of the Payne Family Stock Agreement. Debra S. Payne claims, among
other things, that the filing of the Schedule 13E-3 by the Company triggered
the provision of the Payne Family Stock Agreement that requires each of the
Paynes to sell their shares of Class A Stock to Debra S. Payne. The Company
is also a party to the Payne Family Stock Agreement. See "DESCRIPTION OF IRA
CAPITAL STOCK--Class A Stock." The Company and each of the Paynes believe
that Debra S. Payne's claims as described in the September 11, 1998 letter
are without merit. In response to these demands of Debra S. Payne, on
September 8, 1998, the Paynes filed a petition for declaratory judgment in
state district court in Tarrant County, Texas. As the Company is a party to
the Payne Family Stock Agreement, it is also a party to the declaratory
judgment action. The Paynes and the Company have asked the court to declare,
among other things, that: (i) the Merger does not trigger or otherwise
invoke the buy-sell provision of the Payne Family Stock Agreement; (ii) Debra
S. Payne is not entitled to demand that the Paynes tender their Class A Stock
to her; (iii) the Paynes are not in breach of contract by refusing to tender
their Class A Stock to Debra S. Payne; and (iv) the Paynes and the Company
are not in breach of contract by proceeding with the Merger, or any part
thereof. The parties are currently engaged in settlement discussions. In
the event that a settlement acceptable to each of the Paynes and the Company
is not entered into, the Paynes and the Company intend to vigorously contest
any claim by Debra S. Payne that the buy-sell provision contained in the
Payne Family Stock Agreement has been or will be triggered as a result of the
transactions contemplated by the proposed Merger.
SOURCE AND AMOUNT OF FUNDS
Approximately $16.9 million will be required to pay the Class B Cash
Consideration in the Merger (assuming no Class A/B Shareholder elects to
receive Class B Cash Consideration), and the Surviving Corporation will pay
approximately $1.2 million in fees and expenses associated with the Merger.
The cash required in connection with the Merger will be provided (i) by
working capital of the Company and (ii) pursuant to the terms of the Credit
Facility (as defined below). The following table sets forth the estimated
sources and uses of funds in connection with the Merger, assuming consummation
of the Merger effective _________, 1998. In the event that a Class A/B
Shareholder elects to receive the Class B Consideration, or in the event that
any IRA Shareholder elects to seek appraisal rights, the Company will pay such
amounts from working capital or through increases in its outstanding lines of
credit.
<TABLE>
<CAPTION>
SOURCES OF FUNDS AMOUNT
---------------------------------------- ------------
<S> <C>
Cash . . . . . . . . . . . . . . . . . . $ 2,056,000
Credit facility. . . . . . . . . . . . . 16,000,000
------------
Total sources. . . . . . . . . . . . $ 18,056,000
------------
------------
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
USES OF FUNDS AMOUNT
---------------------------------------- ------------
<S> <C>
Class B Cash Consideration . . . . . . . $ 16,890,000
Professional fees. . . . . . . . . . . . 1,095,000
Filing fees. . . . . . . . . . . . . . . 6,000
Printing and mailing costs . . . . . . . 25,000
Miscellaneous. . . . . . . . . . . . . . 40,000
-------------
Total uses . . . . . . . . . . . . . $ 18,056,000
-------------
-------------
</TABLE>
CREDIT FACILITY. The Company has entered into a loan agreement with
Norwest Bank Texas, N.A. ("Norwest"), dated September 30, 1998 (the "Loan
Agreement"), pursuant to which Norwest has agreed to provide a $16 million
senior secured term loan to IRA (the "Credit Facility"), upon the terms and
conditions set forth in the Loan Agreement. Proceeds under the Credit
Facility must be used to finance the purchase of the Class B Stock.
Principal and interest payments under the Credit Facility will be made
monthly in equal payments of $183,309. Interest on indebtedness outstanding
under the Credit Facility is expected to be payable at a rate of 6.70% per
annum. The maturity date of the Credit Facility will be September 30, 2008.
The Company will incur no fees as a result of the Credit Facility, and there
will be no prepayment penalty imposed for early repayments of amounts owed
under the Credit Facility.
Borrowings under the Credit Facility are secured by a first perfected
security interest in certain shares of mutual funds held by the Company and
its wholly-owned subsidiary, United Services Planning Association ("USPA"),
as evidenced by a Pledge Agreement between Norwest and the Company and a
Pledge Agreement between Norwest and USPA, each dated September 30, 1998
(collectively, the "Pledge Agreements"). The market value of the securities
pledged at the date of the funding of the Credit Facility by Norwest must be
equivalent to 140% of the funded loan amount. Further, the market value of
these securities may not be less than 120% of the loan balance outstanding at
any time. In the event that the market value of the securities does decrease
below 120% of the loan balance, the Credit Facility provides for a cure period
as follows: (i) if the value is between 110% and 119%, there will be a cure
period of 30 days; (ii) if the value is between 100% and 109%, there will be a
cure period of 15 days; and (iii)) if the value is below 100%, there will be a
cure period of 5 days.
The Credit Facility is evidenced and governed by the provisions of the
Loan Agreement, a promissory note executed by the Company payable to Norwest,
dated September 30, 1998 (the "Promissory Note"), the Pledge Agreements, and
other supporting documentation. These documents contain various conditions
precedent to each advance, standard reporting requirements, covenants, events
of default, representations and warranties, covenants and other provisions
customary for credit facilities of this type. Norwest requires the Company
to deliver copies of audited annual financial statements and monthly
borrowing base certificates within the time periods described in the Loan
Agreement.
The foregoing discussion of the Loan Agreement and the Credit Facility
does not purport to be complete and is qualified in its entirety by reference
to the Loan Agreement, the Pledge Agreements and the Promissory Note, copies
of which have been filed as exhibits to the Rule 13e-3 Transaction Statement
on Schedule 13E-3 (the "Schedule 13E-3"), which has been filed with the
Commission. See "AVAILABLE INFORMATION."
21
<PAGE>
The Company intends that the Surviving Corporation will utilize tax
savings available after the Merger to repay any debts incurred as a result of
the Merger. On a pro forma basis, S corporation status would have reduced
the Company's income tax expense by $4,639,886 for the year ended September
30, 1997, and $3,467,015 for the nine months ended June 30, 1998. The
Company believes that these tax savings are adequate to service its debt
pursuant to the Credit Facility incurred as a result of the Merger, which the
Company anticipates will be approximately $2,224,344 annually. The Company
believes that, until such debt is repaid, distributions under the Mission
Accomplishment Plan will be at least equal to those made on the Class B
Stock. See "THE PROPOSED MERGER" and "PRO FORMA CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS OF IRA."
PURPOSE AND STRUCTURE OF THE MERGER
First Command was formed on April 1, 1998, as a Texas corporation, to
construct, own and operate the Parking Garage on the Adjacent Land. IRA has
agreed to provide First Command with funds pursuant to an interest- bearing loan
to construct the Parking Garage. See "CERTAIN INFORMATION CONCERNING FIRST
COMMAND--Business." First Command was organized as an entity distinct from IRA
to limit potential liability of IRA with respect to the ownership, construction
and operation of the Parking Garage. As First Command presently has a limited
number of shareholders and meets the other requirements of S corporation status,
First Command elected S corporation status in order for its taxable items to
"flow through" to its shareholders. See "SPECIAL FACTORS--Certain Effects of
the Merger; Plans for the Company after the Merger."
One objective of the Company is to deregister the Class B Stock under the
Exchange Act, which will cause the Company to no longer be subject to the
reporting requirements of the Exchange Act. The Company currently incurs costs
related to its status as a public reporting corporation under the federal
securities laws, including indirect costs as a result of, among other things,
the executive time expended to prepare and review various filings, furnish
information to shareholders and to attend to other shareholder matters. The
Company anticipates that termination of registration under the Exchange Act will
eliminate the costs and expenses of various federal securities filings incurred
by the Company with respect to regulatory and reporting requirements of the
Exchange Act and will reduce the amount of time devoted by management in
connection therewith. Further, the Company has faced certain competitive
disadvantages resulting from the public reporting requirements of the Exchange
Act. Also, management of the Company believes that access to public markets by
the Company and its shareholders will not occur because of the restrictions on
ownership and transfer of the Class B Stock.
The Company did consider commencing an issuer tender offer in order to
accomplish this goal. However, a successful issuer tender offer could not
ensure that there would not still be shares of Class B Stock outstanding upon
such tender offer's conclusion. In the event that the IRA Shareholders approve
the Merger by the requisite vote, the Class B Stock will be eliminated in
accordance with the terms of the Merger Agreement, which will enable the Company
to deregister the Class B Stock under the Exchange Act.
Additionally, the Company believes that it will qualify for S corporation
status immediately following the elimination of the Class B Stock. Management
of the Company recognized that, if the Class B Stock were eliminated, both IRA
and First Command would qualify for S corporation status. As a result, in order
to achieve administrative simplicity, reduce compliance responsibilities and
eliminate public reporting requirements as described above, the management of
IRA and the management of First Command decided that IRA should merge with and
into First Command, rather than continue both companies as separate S
corporations. Immediately prior to the Merger, First Command will transfer all
of its assets, subject to all of its liabilities, to a newly-formed limited
liability company or Qualified Subchapter S Subsidiary in return for all of the
capital stock of such subsidiary in order to keep the planned operations of
First Command separate and distinct from IRA subsequent to the Merger. Because
First Command currently has elected to be treated as an S corporation under the
federal tax laws, upon the consummation of the Merger, the holders of Class A
Stock that do not seek appraisal rights under Articles 5.12 and 5.13 of the TBCA
will be shareholders of the Surviving Corporation, which will also be an S
corporation. Accordingly, such holders of Class A Stock, as holders of
Surviving Corporation Voting Stock, and Class A/B Shareholders that elect to
receive Surviving Corporation Nonvoting Stock for their Class B Stock will be
entitled to the tax treatment that shareholders of an S corporation receive
under the federal tax laws.
The Management Group has engaged in the transactions contemplated by the
Merger Agreement to assist the Company in attaining the objectives described
above.
CERTAIN EFFECTS OF THE MERGER; PLANS FOR THE COMPANY AFTER THE MERGER
Following the Merger, (i) the Class A Shareholders, (ii) the Class A/B
Shareholders that elect to receive Surviving Corporation Nonvoting Stock and
(iii) the First Command Shareholders will own 100% of the capital stock of the
Surviving Corporation, to the extent that such shareholders do not elect to seek
appraisal rights. As such, these persons will be the direct beneficiaries of
any future earnings and growth of the Surviving Corporation
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and will have the ability to benefit from any divestitures, strategic
acquisitions or other corporate opportunities that may be pursued by the
Company in the future. Upon consummation of the Merger, the Class B
Shareholders that are not Class A/B Shareholders will cease to have any
direct ownership interest in the Company or other rights as shareholders of
the Company, including the right to receive distributions. After the Merger,
such shareholders will benefit from any increases in the cash flow or the
value of the Surviving Corporation only as a result of any MAP Units that
such shareholders may then hold. However, the Class B Shareholders that are
not Class A/B Shareholders will be entitled to receive $28.24 per share for
their Class B Stock, which the IRA Board, First Command and the Management
Group have determined is fair consideration to the holders of Class B Stock.
Additionally, the IRA Board traditionally has utilized the dividends
declared and paid on the Class B Stock as a means of compensating its agents,
members of management and key employees, who are the holders of Class B Stock.
After the Merger, the Class B Stock will be eliminated and dividends on Class B
Stock will no longer be paid. However, the IRA Board intends to make similar
payments of compensation to holders of MAP Units pursuant to the Mission
Accomplishment Plan.
Class B Stock has been sold exclusively to agents of the Company as
incentive stock since its inception. Periodic offerings were made of Class B
Stock that had been redeemed by the Company following agent terminations. In
all such offerings, more shares were subscribed for than offered.
Subscriptions were prioritized solely by giving consideration to past
contributions and future potential of the agent-subscriber to Company
objectives, as determined by the Executive Committee of the Board of
Directors of the Company. The Executive Committee gave consideration to any
recommendations which it received, with respect to these criteria, from
District and Regional Agents of the Company. MAP unit awards will also be
based on individual merit of agents, in a manner similar to that used with
respect to grants for shares of Class B Stock. All payments of DERs made by
the Company will be made in the same amount per unit to all holders, similar
to dividends paid on capital stock. Additionally, any change in the per SAR
unit value will apply equally to all SAR units.
Class B Stock has provided two valuable financial benefits to agents. It
appreciated in value until such time as agents terminated or otherwise desired
to receive cash for their shares. Additionally, annual cash dividends were paid
on all outstanding shares of Class B Stock. The Mission Accomplishment Plan was
designed to mirror these two financial benefits. A MAP unit is composed of one
SAR and one DER. Through SARs, agents will participate in the undistributed
earnings of the Company. When agents leave the Company, their SARs will be
exercised and they will receive a lump sum of cash for the value that will have
accumulated since the MAP units were granted. Through DERs, agents will
participate in annual cash dividend equivalents that will be paid on all MAP
units until such time as agents terminate their agreements with the Company.
Because agents have no cost basis in the MAP units, any return resulting
from the liquidation of the MAP units will be taxed to the holders of the MAP
units as ordinary income. In contrast, holders of Class B Stock were entitled
to receive capital gain tax treatment upon liquidation of their shares of Class
B Stock.
Holders of Class B Stock have the right to vote only in the event of
certain extraordinary transactions (such as the Merger) as provided by the TBCA,
or as otherwise provided by law. See "DESCRIPTION OF IRA CAPITAL STOCK--Class
B Stock." Holders of MAP units will have no voting rights.
Class A/B Shareholders who are not affiliates of the Company will
receive following the Merger shares of Surviving Corporation Voting Stock
representing the same proportionate interest of voting stock owned by such
Class A/B Shareholder in IRA prior to the Merger. The Class A/B Shareholders
who are not affiliates of the Company will be entitled to receive $28.24 per
share of Class B Stock owned by them. As these Class A/B Shareholders would
be subject to income tax at ordinary income rates on any resulting gain,
these Class A/B Shareholders may elect instead to receive Surviving
Corporation Nonvoting Stock in exchange for their Class B Stock.
The impact on Class A/B Shareholders who are affiliates of the Company
will be the same as for Class A/B Shareholders who are not affiliates except
the Class A/B Shareholders who are affiliates of the Company will also remain
as officers and/or directors of the Surviving Corporation. Under Texas law,
each IRA Shareholder has the right to exercise statutory appraisal rights in
the event any shareholder disagrees with the consideration to be paid
pursuant to the Merger. See "THE PROPOSED MERGER--Rights of Dissenting
Shareholders."
Class B Stock is currently registered under the Exchange Act, which
requires, among other things, that the Company furnish certain information to
its shareholders and to the Securities and Exchange Commission (the
"Commission") and comply with the Commission's proxy rules in connection with
meetings of the Company's Class B Shareholders. After the Merger, the Surviving
Company will no longer be subject to the reporting requirements of the Exchange
Act with respect to Class B Stock, and Class B Stock will be subject to
termination of registration under Section 12(g)(4) of the Exchange Act. After
the Merger, the Company will no longer be subject to the reporting requirements
of the Exchange Act.
The termination of the registration of Class B Stock under the Exchange Act
will substantially reduce the information required to be furnished by the
Company to its shareholders and to the Commission and would render inapplicable
certain provisions of the Exchange Act, including requirements that the Company
file periodic reports (including financial statements), the requirements of Rule
13e-3 under the Exchange Act with respect to "going private" transactions,
requirements that the Company's officers, directors and ten-percent shareholders
file certain reports concerning ownership of the Company's equity securities and
provisions that any profit by such officers, directors and shareholders through
purchases and sales of the Company's equity securities within any six month
period may be recaptured by the Company.
It is expected that following the Merger the business and operations of
the Company will be continued by the Surviving Corporation in the Merger,
substantially as they are being conducted presently through IRA and First
Command. There are no known facts or trends that may indicate that the
Company's agency relationships with represented insurance companies will
change as a result of the consummation of the Merger. The Surviving
Corporation's corporate headquarters are expected to remain in Fort Worth,
Texas, and the current directors and executive officers of IRA are expected
to be the directors and executive officers of the Surviving Corporation. See
"CERTAIN INFORMATION CONCERNING IRA--Directors and Executive Officers of IRA."
For a discussion of the federal tax implications for holders of Class B
Stock, see "--Certain Federal Income Tax Considerations."
First Command is currently an S corporation for federal income tax
purposes. All corporate income, losses, deductions and other taxable items of
an S corporation are "passed through" and taxed at the shareholder level. As a
result, generally an S corporation does not pay federal income taxes on
corporate income; instead, the shareholders of the S corporation are taxed for
their proportionate share of the net income of the S corporation, based on
their respective ownership of the corporation. Consequently, to the extent that
an S corporation generates taxable income, the shareholders of the S
corporation may be subject to tax liability as a result of that corporate
income. Upon consummation of the Merger, management believes that the
Surviving Corporation should be treated as an S corporation, and, as a result
of the Merger, (i) each Class A Shareholder, (ii) each Class A/B Shareholder
electing to receive Surviving Corporation Nonvoting Stock and (iii) each
First Command Shareholder, that do not elect to seek appraisal rights, will
be a shareholder in an S corporation and could be subject to personal tax
liability arising from any taxable income generated by the Surviving
Corporation. After the Merger, however, there can be no assurance that the
Surviving Corporation will continue to maintain its status as an S
corporation. If the Surviving Corporation fails to maintain the requirements
for S corporation, the shareholders of the Surviving Corporation will not
receive the tax treatment accorded to shareholders of S corporations.
The Company has made distributions in the past only on Class B Stock.
Pursuant to the Articles of Incorporation of the Surviving Corporation and the
Surviving Corporation Shareholders' Agreement, the Surviving Corporation will
agree to declare and make distributions pro rata to all the Surviving
Corporation Shareholders to allow them to pay the federal income tax
liability attributable to their distributive share of the Surviving
Corporation's taxable income. In addition, the IRA Board has provided the
Class A/B Shareholders the right to receive the Class B
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Nonvoting Stock Consideration. See "SPECIAL FACTORS--Background of the Merger."
Further, the IRA Board, which will be the Board of the Surviving Corporation
upon consummation of the Merger, anticipates that the Surviving Corporation,
subject to the fiduciary duties of the Board of Directors of the Surviving
Corporation and the ongoing financial condition of the Surviving Corporation,
will declare and make distributions that are pro rata to all shareholders on the
Surviving Corporation Common Stock that are intended to approximate the income
that the Class A/B Shareholder would have received from the competitive
reinvestment of the Class B Cash Consideration, taking into account certain
income tax considerations. See "--Purpose and Structure of the Merger."
The purpose of this provision is to provide a minimum return to the
Class A/B Shareholders that elect to receive the Class B Nonvoting Stock
Consideration. This minimum return is to be determined based on the
hypothetical after-tax proceeds that would have resulted if the Class A/B
Shareholder had received the Class B Cash Consideration and received capital
gains tax treatment for federal income tax purposes. For example, assuming a
reasonable after-tax return of 5%, an annual dividend of $1.13 (or $28.24
- -($28.24 x 20%) x 5%) would be paid on each outstanding share of First
Command Common Stock after the Merger. The distribution will apply to both
the Surviving Corporation Voting Stock and the Surviving Corporation
Nonvoting Stock held by the Class A/B Shareholders. The consideration to be
paid for the Class B Stock held by the Class A/B Shareholders is economically
the same as that to be received by the Class B Shareholders that do not own
Class A Stock. The Class A/B Shareholders can elect to receive the Class B
Cash Consideration, or the Class A/B Shareholders can elect to receive the
Class B Nonvoting Stock Consideration with a value equal to the Class B Cash
Consideration.
In the event the Surviving Corporation makes ongoing repurchases of the
Surviving Corporation Nonvoting Stock, the IRA Board presently anticipates
that the repurchase price for such shares will be $28.24 per share, unless
otherwise determined by the Board of Directors of the Surviving Corporation.
The IRA Board also anticipates that such Surviving Corporation Nonvoting
Stock will only be repurchased by the Surviving Corporation in the event that
a Surviving Corporation Shareholder is required to tender his or her shares
to the Surviving Corporation pursuant to the terms of the Surviving
Corporation Shareholders' Agreement. See "--Contracts With Respect to
Surviving Corporation Common Stock."
After the Merger, the Surviving Corporation intends to adopt IRA's
Mission Accomplishment Plan and award MAP Units pursuant to the Mission
Accomplishment Plan to the former Class B Shareholders who are agents, members
of management or employees at the time of award as well as to other active
agents and employees of the Surviving Corporation.
Except as otherwise indicated in this Proxy Statement, the Company and
First Command do not have any plans or proposals subsequent to the Merger that
relate to or would result in an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving the Company, a sale or transfer
of a material amount of the assets of the Company or any material change in the
Company's corporate structure.
CONTRACTS WITH RESPECT TO SURVIVING CORPORATION COMMON STOCK
SURVIVING CORPORATION SHAREHOLDERS' AGREEMENT. Upon the Effective Time,
the management of the Surviving Corporation will request that all Surviving
Corporation Shareholders execute the Surviving Corporation Shareholders'
Agreement (the parties to the Surviving Corporation Shareholders' Agreement
referred to as the "Agreeing Parties"). The Surviving Corporation Shareholders'
Agreement provides for, among other things, (i) restrictions on the transfer of
Surviving Corporation Common Stock that would cause the Surviving Corporation's
status as an S corporation to terminate; (ii) a requirement that a shareholder
tender his or her shares to the Surviving Corporation (at a price to be
determined by the Surviving Corporation at least annually) in the event of any
threatened or actual transfer of the shares, the death of such Agreeing Party,
any termination of marriage of a Agreeing Party by death or divorce in which
such shareholder does not receive his or her spouse's community interest in the
Surviving Corporation Common Stock, any threatened or actual bankruptcy of the
Agreeing Party, the termination of such Agreeing Party as a Texas life insurance
agent, the cessation of the shareholder as a duly authorized agent of the
Surviving Corporation pursuant to a current written agency agreement (except
that with respect to an involuntary termination as a duly authorized agent of
the Surviving Corporation, such termination requires approval by a vote of 80%
of the Board of Directors of the Surviving Corporation), the change in status of
an Agreeing Party to a "nonresident alien" (as defined in the Code) or any
threatened or actual levy by a creditor or claimant upon the Surviving
Corporation Common Stock held by the Agreeing Party; and (iii) certain
provisions with respect to the S corporation status of the Surviving
Corporation. However, the Surviving Corporation Shareholders' Agreement does
permit, under certain circumstances, Surviving Corporation Shareholders to
pledge the Surviving Corporation Common Stock with the prior written consent of
the executive committee of the Surviving Corporation, subject to such terms,
conditions and restrictions as the executive committee of the Board of Directors
of the Surviving Corporation determines to be appropriate. Pursuant to the
Surviving Corporation Shareholders' Agreement, the Surviving Corporation has
agreed to declare and make annual distributions to all of its shareholders in a
timely manner to allow them to pay their federal income tax liability
attributable to their distributive share of the Surviving Corporation's taxable
income.
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RECOMMENDATION OF THE IRA BOARD AND THE SPECIAL COMMITTEE;
FAIRNESS OF THE MERGER
The IRA Board, based upon the unanimous recommendation of the Special
Committee, determined that the terms of the proposed Merger are fair to and
in the best interests of the IRA Shareholders, including Class B Shareholders
who do not own Class A Stock, and unanimously approved the Merger Agreement
and the Merger and recommended that the Merger Agreement be submitted for
approval at a special meeting of the Company's shareholders. In arriving at
its decision, the IRA Board gave careful consideration to a number of
factors, including the opinion of the Financial Advisor. ACCORDINGLY, THE IRA
BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR" APPROVAL OF THE MERGER
AGREEMENT.
The IRA Board's approval and recommendation to the Company's shareholders
and the Special Committee's recommendation to the IRA Board were based upon
the following material positive factors:
(1) the Merger will provide the Class B Shareholders with an
opportunity to receive the fair value for their Class B Stock because the
price per share of $28.24 was determined pursuant to a methodology utilized
by the Company since 1981 to establish the price pursuant to which (i) sales
of Class B Stock have been made in offerings to its agents, members of
management and key employees and (ii) purchases of Class B Stock have been
made by the Company pursuant to the terms of shareholder's agreements between
the Company and each Class B Shareholder;
(2) the flexibility provided by the additional resources available to
the Company after the Merger because savings resulting from the Company being
an S corporation under federal income tax laws and no longer being a public
reporting company following the Merger, will be utilized to make compensation
payments to participants in the Mission Accomplishment Plan, including
persons who owned Class B Stock, after the payment of debt incurred to
finance the Merger and the use of such funds for general corporate purposes;
(3) the opinion of the Financial Advisor that the Merger is fair to the
Class A Shareholders and the Class B Shareholders, from a financial point of
view;
(4) the belief of the IRA Board that the costs, both economic as well as
in personnel time, in complying with the many obligations of being a public
company have not provided a commensurate benefit to the Company or the Class B
Shareholders because the Company and its shareholders have not accessed the
public capital markets due to the restrictions on ownership and transfer of
the Class B Stock;
(5) the ability of Class A Shareholders that do not seek appraisal rights
to maintain their proportionate interest in the Surviving Corporation, which
the management of IRA currently anticipates will be an S corporation for
federal income tax purposes;
(6) the previous adoption of the Mission Accomplishment Plan, pursuant
to which the IRA Board intends to utilize the earnings of the Company to make
compensation payments to its agents, members of management and key employees,
including persons who owned Class B Stock, thereby diminishing the
availability of earnings for appreciation and distributions on its capital
stock; and
(7) the belief of the IRA Board that the funds generated after the
Merger will be sufficient to service debt incurred as a result of the Merger
and to make distributions on MAP units that are at least equal to those
historically paid on the Class B Stock.
Neither the Special Committee nor the IRA Board considered the following
factors, for the reasons specified: (i) current or historical market values,
because of the lack of a trading market for the Class A Stock and the Class B
Stock (see "MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP OF IRA
COMMON STOCK"); (ii) liquidation value, given the Company's unique structure;
and (iii) firm offers, because neither the Company, First Command nor the
Management Group were aware of any firm offer for the merger or consolidation of
the Company, the sale or transfer of all or any substantial part of the assets
of the Company or securities of the Company that would enable the holder
thereof to exercise control of the Company.
Because the Financial Advisor considered the following factors, the Special
Committee and the IRA Board adopted the analysis of the Financial Advisor with
respect to such factors: (i) net book value of the Company (see "--Opinion of
the Financial Advisor--Adjusted Book Value Approach"); (ii) going concern value
of the Company (see "--Financial Advisor--Income Approach; --Market Multiple
Approach"); and (iii) historical purchase prices paid in previous purchases (see
"--Financial Advisor--Current/historical Market Pricing and Shareholder
Agreement Analysis").
With respect to comparable transactions, the Special Committee and the
IRA Board adopted the Financial Advisor's conclusion that the companies that
the Financial Advisor analyzed were inapplicable to the proposed transaction
and the Company. None of the "comparables" involved companies with a
security ownership like that of the Company, with all shareholders being
licensed Texas life insurance agents and parties to a restrictive
shareholder's agreement.
The foregoing discussion of the information and factors considered and
given weight by the Special Committee and the IRA Board is not intended to be
exhaustive. In view of the variety of factors considered in connection with
their evaluation of the Merger, the Special Committee and the IRA Board did not
find it practicable to, and did not, quantify or otherwise assign relative
weights to the specific factors considered in reaching their determinations.
Neither the Special Committee nor the IRA Board concluded that any factor
weighed against the fairness of the transaction to the IRA Shareholders.
The Special Committee and the IRA Board evaluated the factors described
above in light of their knowledge of the business and operations of the Company,
and their business judgment, and concluded that the Merger and Merger Agreement
and the transactions contemplated thereby are fair to, and in the best interests
of, the Company and its shareholders.
The Special Committee and the IRA Board believe that the terms of the
Merger are procedurally fair because: (i) the Special Committee was
disinterested and was appointed to represent the interests of the Company's
shareholders, including its unaffiliated shareholders; (ii) the Special
Committee retained and was advised by counsel separate from counsel for the
Company; (iii) the Special Committee obtained an opinion concerning the
fairness, from a financial point of view, of the Merger to the IRA
Shareholders; and (iv) the Merger requires the approval at the Special Meeting
of the holders of at least a majority of the outstanding shares of Class B
Stock not held by Class A/B Shareholders. The Special Committee was not
retained to act solely on behalf of unaffiliated shareholders, and the
Special Committee did not negotiate the terms of the Merger.
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POSITION OF THE MANAGEMENT GROUP AND FIRST COMMAND AS TO THE FAIRNESS OF THE
MERGER
The members of the Management Group have considered the process by which
the Company determined the terms of the Merger and certain additional factors
examined by the Special Committee and the IRA Board (described in detail in
"SPECIAL FACTORS--Recommendation of the IRA Board and the Special Committee;
Fairness of the Merger). Members of the Management Group believe that these
factors, when considered together, provide a reasonable basis for them to
believe, as they do, that the Merger is fair to the IRA Shareholders,
including Class B Shareholders who do not own Class A Stock. As a result, the
members of the Management Group specifically adopted the analysis of the IRA
Board and the Special Committee. See "RECOMMENDATION OF THE IRA BOARD AND
THE SPECIAL COMMITTEE; FAIRNESS OF THE MERGER."
The rules of the Securities and Exchange Commission require First
Command to express its belief as to the fairness of the Merger to the IRA
Shareholders. While First Command has not undertaken any independent
evaluation of the Merger from the standpoint of fairness to the Company's
shareholders, it has considered the factors that were taken into account by
the Special Committee and the IRA Board (described in detail in "SPECIAL
FACTORS--Recommendation of the IRA Board and the Special Committee; Fairness
of the Merger) and by the members of the Management Group. Based solely on
these factors, First Command believes that the Merger is fair to the IRA
Shareholders, including Class B Shareholders who do not own Class A Stock. As
a result, First Command specifically adopted the analysis of the IRA Board
and the Special Committee. See "RECOMMENDATION OF THE IRA BOARD AND THE
SPECIAL COMMITTEE; FAIRNESS OF THE MERGER."
These beliefs should not, however, be construed as a recommendation to
the IRA Shareholders by the members of the Management Group in their capacity
as shareholders or First Command to vote or approve the Merger Agreement.
Members of the Management Group and the officers, directors and shareholders
of First Command are executive officers or directors of the Company (other
than Freda J. Payne) and have an interest in the contemplated Merger. Neither
First Command nor any member of the Management Group has assigned specific
relative weights to the factors considered in reaching its belief as to
fairness.
OPINION OF THE FINANCIAL ADVISOR
The Special Committee retained PricewaterhouseCoopers LLP, formerly
known as Coopers & Lybrand LLP, as the Financial Advisor in June 1998 to
render an opinion to the Special Committee and the IRA Board as to the
fairness, from a financial point of view, of the Merger to the IRA
Shareholders.
PricewaterhouseCoopers, LLP (the "Financial Advisor") was formed by the
merger of Price Waterhouse L.L.P. and Coopers & Lybrand L.L.P. The Financial
Advisor maintains an internationally recognized valuation services group which
is continually engaged in the valuation of businesses and their securities in
connection with mergers and acquisitions and for other purposes. The Financial
Advisor implements a rigorous internal review process prior to issuing a
fairness opinion.
On June 27, 1998, the Financial Advisor made its presentation to the IRA
Board and delivered its form of written opinion to the Special Committee and
the IRA Board that the Transaction (as defined below) is fair from a
financial point of view to the Class A Shareholders and Class B Shareholders.
On __________, 1998, the Financial Advisor delivered its signed, written
opinion to the Special Committee and the IRA Board that, as of the date of
the opinion, the Transaction (as defined below) is fair from a financial
point of view to the Class A Shareholders and Class B Shareholders.
In rendering its opinion, the Financial Advisor considered the following
contemplated transactions: (i) the merger of IRA with and into First Command;
(ii) the simultaneous exchange of the Surviving Corporation Voting Stock for
the Class A Stock; (iii) the simultaneous exchange of the Class B Cash
Consideration for the Class B Stock held by Class B Shareholders that are not
Class A Shareholders; (iv) the simultaneous conversion of the Class B Stock
held by the Class A/B Shareholders into the Class B Cash Consideration or an
equivalent amount of the Surviving Corporation Nonvoting Stock; and (v) the
conversion of the Company's status from a C Corporation to an S corporation
(collectively, the "Transaction").
The full text of the Financial Advisor Opinion, which includes the
assumptions made, general procedures followed and matters considered is set
forth as Annex B to this Proxy Statement. The Financial Advisor relied upon and
assumed the accuracy and completeness of all financial and historical and
prospective operating information that was publicly available or furnished to
the Financial Advisor and did not attempt to independently verify any of such
information nor did it make or obtain any independent evaluations or appraisal
of any assets of the Company. The Financial Advisor was not requested to and
did not solicit third party indications of interest in acquiring all or any part
of the Company. No limitations were imposed by the IRA Board or the Special
Committee upon the Financial Advisor with respect to the investigation made, or
procedures followed by the Financial Advisor in rendering its opinion. The
Financial Advisor did not determine or recommend the amount of the consideration
to be paid by the Company in connection with the Merger.
In rendering its opinion, the Financial Advisor carried out various
procedures and considered certain facts, including: (i) the terms of the Merger
Agreement; (ii) the various incentive compensation plans contemplated by the
management of the Company as of the date of its analysis; (iii) the fact that
the benefit of additional compensation (in the form of future dividend
equivalency rights and stock appreciation rights) will be available to
participants in the aforementioned incentive compensation plans, and thus
will be unavailable to current shareholders; (iv) the financial and operating
implications of the Company's proposed conversion to S corporation status; (v)
management's ongoing commitment to the Company's agents and the maintenance of
the Company's mission and corporate culture; (vi) certain financial and other
operating information relating to the Company that was publicly available or
furnished to it by the Company, including cash flow analyses prepared by the
Company's management; (vii) that the Financial Advisor met with members of the
Company's management to discuss the business, operations, historical financial
results and future prospects of the Company, including the prospective
implications of the Company's S corporation election and post transaction
incentive plan; (viii) certain financial and securities data of the Company and
compared that data with similar data for other companies in businesses similar
to those of the Company; (ix) the financial terms of certain recent acquisitions
of companies in businesses similar to those of the Company; (x) that the
Financial Advisor performed a discounted cash flow analysis; and (xi) such other
information, financial studies, tax opinions, analyses and investigations and
financial, economic and market criteria as it deemed relevant and appropriate
for purposes of the Financial Advisor Opinion.
During its analysis, the Financial Advisor reviewed certain documents
provided by the Company. The following is a summary of certain of the documents
provided. The Financial Advisor reviewed (i) certain documents pertaining to
the Mission Accomplishment Plan, including a summary of the Mission
Accomplishment Plan, the form of respective agreements and plan descriptions for
certain members of management, certain agents and certain employees of the
Company and the Board Grant Declaration and Administrative Policies; (ii) a
computer listing of IRA shareholders by name, number of shares owned, and
percentage of ownership; (iii) a plan of merger chart, reflecting a graphical
representation of the going private transaction, a chart depicting the Company
and its subsidiaries prior to the Merger, and a chart depicting the Company and
its subsidiaries after the Merger; (iv) an agent listing by region, which
contains a listing of all active IRA agents in region and district order; (v) an
organizational chart of the Company; (vi) a stock transaction printout
containing a computer listing in chronological order of shares sold and
purchased during the past two years; (vii) certain documents with respect to
prior litigation of the Company, pursuant to which the terms of the Class B
Shareholder's Agreements were held to be binding on a former agent of the
Company; (viii) forms of the Company's agreements with its agents, which contain
information concerning the duties of the agents and their compensation and
commissions; (ix) copies of the Company's agency agreements with certain
insurance companies, which describe the obligations, duties, and
responsibilities of the parties as well as compensation to be paid to IRA for
services provided; (x) copies of the Company's dealer agreements with certain
investment dealers, which describe the obligations, duties, and responsibilities
of the parties as well as compensation to be paid to USPA for services provided;
(xi) a listing of the directors and officers of the Company and a description of
the members of the IRA Board, containing short biographical sketches of current
IRA Board members; (xii) the mission statement of the Company and a history of
the Company, containing excerpts from Company marketing material reflecting the
Company's history, purpose, goals, and mission; (xiii) a list of the top
producing agents by year for the past ten years; (xiv) a list containing a legal
description of the real property that IRA owns, along with a copy of the plat;
(xv) a list of non-recurring items, describing significant financial items that
have occurred over the past several years which are not predictable and/or
non-recurring such as distributions from Company investments in equity
securities and state and federal income tax refunds; (xvi) the Class B
Shareholder Agreement, used by all Class B shareholders; (xvii) the Payne Class
A Shareholder Agreement, which is signed by all members of the Payne family who
own Class A shares; (xviii) the Class A Shareholder Agreement, which is used for
all Class A shareholders except members of the Payne Family; (xix) a copy of the
Articles of Incorporation of the Company, as amended and filed with the State of
Texas, along with a copy of the bylaws of the Company as amended; (xx) certain
internal financial statements, showing financial highlights of the Company for
the past five years and various ratios calculated for internal use; (xxi) the
stock appreciation history of the Class B Stock, by month and year for the past
10 years; and (xxii) certain military customer demographics, summarizing the
significant market niches of the Company and its major competitors within those
markets.
Copies of these documents have been filed as exhibits to the Schedule 13E-3
and will be made available for inspection and copying at the principal executive
offices of the Company during its regular business hours by any IRA Shareholder
or his representative who has been so designated in writing. Alternatively, the
Company will transmit a copy of the documents to such IRA Shareholder (or his or
her designated representative) upon written request and at the expense of such
IRA Shareholder.
In addition, prospective operating information (the "Model") was
provided to the Financial Advisor and the Special Committee that included a
financial model intended to demonstrate the financial and tax effects of the
Merger and subsequent S corporation status of the Surviving Corporation.
The Model has been filed as an exhibit to the Schedule 13E-3. The Model and
summary information contained therein does not purport to show increasing
levels of operating revenue or cost savings that may occur as a result of the
Merger. The Model was prepared for the purpose of ensuring the required cash
flow would be available to service the debt incurred as a result of the
Merger based on current operating conditions. The assumptions and cautionary
statement included in the Model are an integral part of the analysis.
The most significant assumptions used in the Model include the following:
(1) The Company has assumed no growth in net income as the purpose of the
Model is to evaluate the Company's ability to service the debt under
current operating conditions. Revenue generating assets and
liabilities have been assumed to remain constant while certain other
assets have been projected based on historical trends.
(2) The Mission Accomplishment Plan replaces certain financial elements of
the Company's Class B Stock which was created in order to reward key
employees and agents and allow them the opportunity to share the
Company's growth through dividends and stock appreciation. The
Mission Accomplishment Plan is more financially efficient than Class B
Stock as a way to meet the objective of rewarding key employees and
agents. All current shareholders are key employees and licensed
agents of the Company.
(3) The Company has assumed that 100% of all net income after taxes, on a
GAAP basis, will be distributed to Class B Shareholders in the event
that the Company continues to operate as a C corporation. In the
event the Company changes its tax status to an S corporation it has
been assumed that 85% of taxable income before Mission Accomplishment
Plan distributions will be paid out as Dividend Equivalent Rights with
the remainder increasing the value of the Stock Appreciation Rights.
The 85% represents a limit imposed by cash flow and tax
considerations.
(4) The Company believes that all Class A/B Shareholders will elect to
exchange their Class B Stock for Surviving Corporation Nonvoting
Stock. Consequently, this is the scenario that is contained in the
Model. In order to compensate the Class A/B Shareholders for not
receiving any cash consideration for their Class B Stock, a special
distribution will be paid to them annually based on the performance
of the Company. The purpose of this distribution is to provide a
minimum return to the Class A/B Shareholders that receive the Class B
Nonvoting Stock Consideration pursuant to the Merger. The minimum
return will be based on the hypothetical after-tax proceeds that
would have resulted from the exchange of Class B Stock for the Class B
Cash Consideration and assumes that any gain will be taxed at capital
gain rates for federal income tax purposes.
(5) The Model includes information for each year until the Company's
2009 fiscal year, which is one year following the anticipated payoff
of the debt incurred as a result of the Merger. At that point, in
order to adequately compare the C corporation and S corporation
status of the Company in the Model, all Class B Stock and SAR units
have been converted to cash. Tax effects on the Company,
shareholders and MAP holders have been taken into account.
Additional information in the Model reflects the summary of cash flow
analysis and balance sheet data from 1998 through 2009. The following are
similarities and differences between IRA as if the Merger had never occurred
("Old IRA") and First Command after the consummation of the Merger ("New
First Command") that are described in the Model:
(1) Old IRA and New First Command reflect the same net income before
corporate taxes and interest.
(2) New First Command as an S corporation would not pay corporate federal
income taxes as Old IRA would continue to do in the future. New First
Command would, however, make distributions to shareholders in order to
pay federal income taxes resulting from taxable income, deductions,
credits and other items that flow through to them.
(3) During fiscal year 1999, the Model indicates that Old IRA would pay
$8.17 million in dividends to Class B Shareholders. New First Command
would make DER payments to MAP participants of $10.76 million even
after appropriate payments are made on debt incurred as a result of
the Merger and appropriate distributions are made to New First Command
shareholders. Similar differences occur each year thereafter due to
the S election.
(4) The balance sheet reflects that in addition to (3) above, during 1999
the Company will accrue a SAR payable liability of $8.91 million.
The Model also contains a summary of shareholder cash flows during the
period from 1998 through 2009. Shareholder and MAP participant income taxes
have been taken into account in the summary of shareholder cash flows. The
following are significant differences and similarities between Old IRA and
New First Command and also between Class A/B Shareholders and Class B
Shareholders as described in the Model:
(1) The per share redemption price for Class B Stock is $28.24 under
both Old IRA and New First Command.
(2) The net cash flow per share after taxes over the time period as
described in the Model is $86.52 for both Class A/B Shareholders
and Class B Shareholders. These amounts include stock sale proceeds
and dividends.
(3) The net cash flow per share and per MAP unit after taxes under First
Command over the time period described in the Model is $125.55 for
both Class A/B Shareholders and Class B Shareholders. These amounts
include stock sale proceeds, MAP payments, earnings on stock sale
proceeds of the Class B Shareholders, and Company distributions to
Class A/B Shareholders who exchanged Class B Stock for Surviving
Corporation Nonvoting Stock.
(4) Both Class A/B Shareholders and Class B Shareholders, based on the
assumptions described in the Model, would receive 45.11% more cash
after taxes under the New First Command scenario than under the IRA
scenario.
(5) If all cash flows are discounted back to 1998 at 4%, both the Class
A/B Shareholders and Class B Shareholders would be 43.56% better off
under the New First Command scenario.
While this information is not intended to predict future performance of
the Company, it does demonstrate the dynamics of the transaction and the
intent of the Company to keep the financial rewards to the Class A/B
Shareholder and Class B Shareholders the same after the Merger. This
information intends to show the benefits that will be available to the Class
A/B Shareholders and Class B Shareholders through this more financially
efficient method of rewarding key employees and agents through the Mission
Accomplishment Plan.
Copies of the Model will be made available for inspection and copying at
the principal executive offices of the Company during its regular business
hours by any IRA Shareholder or his representative who has been so designated
in writing. Alternatively, the Company will transmit a copy of this
information to such IRA Shareholder (or his or her designated representative)
upon written request and at the expense of such IRA Shareholder.
26
<PAGE>
The Financial Advisor considered the following approaches in its analysis:
INCOME APPROACH. The concept underlying this approach is that realistic
valuation of any investment in an income-producing property is directly related
to the future cash flow attributable to such property. Therefore, future cash
flow represents the recovery of investments as well as a return on investment.
The ability of an enterprise to create adequate cash flow, fund the proper cash
disbursements and provide for related financing activities is the primary
determinant of value in that enterprise.
A major requirement of the income approach is a cash flow analysis, which
is management's estimate of what will occur in the future as it pertains to
revenues, expenses, capital expenditures and working capital requirements. This
analysis is compared to the forecasted financial and operating results of
comparable businesses with an emphasis on growth and profitability.
Another important component of the income approach is the determination of
the cost of equity. Since the cash flow analyses provided by the Company's
management included debt proceeds, principal repayment and interest expense, the
resulting cash flows were appropriately discounted at a cost of equity
ranging from 15% to 20%. The cost of equity is utilized to convert to
present value the operating cash flow the subject property is expected to
generate in the future. Various financial tools and modes are used to
calculate these returns. Central to this analysis was the assumption that
the majority of the future cash flow generated by the Company will accrue to
the benefit of the participants of the Company's incentive compensation plans.
Based on the above procedures, the income approach yielded value
indications for the Class B Stock ranging from $2.32 per share to $11.61 per
share. This value range reflects management's assertions that there will be
insufficient cash flow prospectively to fund dividends or capital
appreciation on the Class B Stock due to the impact of the various incentive
compensation plans. Based on this value range and the transaction price of
$28.24 per share of Class B Stock, the Financial Advisor considered the
indications of value derived from the income approach as supportive of its
ultimate conclusion.
TRANSACTION APPROACH. This approach required an analysis of recent
transactions involving financial planning companies deemed comparable to the
Company. Market derived multiples, based on revenue, EBDIT (earnings before
depreciation, interest and taxes) and book value of equity were developed and
analyzed to consider differences between the Company and the comparable
transactions used in the analysis for factors such as size, product
concentration, market share, growth potential and profitability. Central to
this analysis was the assumption that the majority of the future cash flow
generated by the Company will accrue to the benefit of the participants in
the Company's incentive compensation plans, and, therefore, the growth
potential and profit available to the Class A Stock and Class B Stock would
be significantly reduced.
The Financial Advisor conducted an analysis of transactions over the past
twenty-four months for companies in the life insurance and insurance agency
business. Although the life insurance and financial planning industry is
undergoing consolidation, the majority of the transactions identified involved
companies that did not possess qualities similar to the Company. For example, a
large majority of the target companies maintained underwriting operations for
their own insurance products and securities. The few transactions that did
contain pure agency and/or financial planning operations were small in deal size
and considered immaterial by the acquiror. Therefore, financial data pertaining
to the operations of these target companies was unavailable.
However, two transactions relating to pure agency and/or financial planning
operations for which adequate financial information was available were
identified. In September 1997, Amerus Life Insurance Company acquired Delta
Life Corporation for approximately $163 million, and in November 1996, the
annuity division of John Alden Financial Corp. was acquired by SunAmerica Inc.
for approximately $238 million. These transactions posed several issues when
comparing the Company to the targets mentioned above. The issues can be
summarized as follows:
(1) the products offered by both target companies were not from
contractual relationships with independent underwriters, but rather
from affiliations with parent companies;
(2) these transactions were synergistic acquisitions, not
recapitalizations;
(3) the equity of the targets was not severely restricted by shareholder
agreements (as is the case with the Class A Stock and the Class B
Stock of the Company);
(4) the targets' equity was not principally owned by the agents who are
responsible for the generation of revenue (as is the case with the
Company); and
(5) the equity owners of the targets did not have to be registered life
insurance agents in the state of Texas.
Based on these factors, the Financial Advisor assigned minimal weight to
the value indications generated by the transaction approach.
In order to apply transaction multiples to the historical parameters of
the Company, the Financial Advisor first needed to adjust the historical
financial performance of the Company to reflect the impact of the various
incentive compensation plans enacted by the IRA Board prior to the
Transaction. After making such adjustments, the transaction approach yielded
value indications for the Class B Stock ranging from $15.36 per share to
$24.93 per share. This value range reflects management's assertions that
there will be insufficient cash flow prospectively to fund dividends or
capital appreciation on the Class B Stock due to the impact of the various
incentive compensation plans. Based on this value range and the transaction
price of $28.24 per share of Class B Stock, the Financial Advisor considered
the indications of value derived from the transaction approach as supportive
of its ultimate conclusion.
MARKET MULTIPLE APPROACH. This approach required an analysis of the
publicly traded companies operating in the relevant industry. Market valuation
multiples were developed from the financial statements of the identified
guideline companies. The guideline companies used in this analysis included
American Annuity Group, Cotton States Life Insurance and Kansas City Life
Insurance Company. The Financial Advisor conducted an analysis of
comprehensive lists and directories of public companies engaged in life
insurance sales and/or financial planning. The following criteria were used
in choosing potential guideline companies for this analysis: (i) the company
has been profitable; (ii) the company provides similar services to those
provided by IRA (i.e., life insurance agencies); (iii) the company is not
involved in the underwriting of its own insurance or financial products;
(iv) adequate financial data is available for the company; and (v) the
company's stock is traded on an exchange or in the over the counter market.
Central to this analysis was the assumption that the majority of the future
cash flow generated by the Company will accrue to the benefit of the
participants in the Company's incentive compensation plans. The companies
considered by the Financial Advisor in its analysis are described more fully
below.
Due to the nature of the industry, the majority of publicly traded life
insurance and financial planning companies engage in many diverse lines of
business (most underwrite insurance and/or sell mutual funds in which they
manage themselves). Therefore, the guideline company search yielded only three
companies deemed remotely comparable to IRA.
AMERICAN ANNUITY GROUP, INC. ("AAG"). AAG is a holding company whose
subsidiaries are engaged primarily in the marketing of single premium annuities
for retirement planning. Operations in this area accounted for approximately
80% of premiums in 1997. Within the past three years however, AAG has made a
concentrated effort to expand their operations into the areas of life insurance
and pre-need funeral financing. Through acquisitions, AAG nearly doubled its
asset base from $4.5 billion in 1992 to over $7.7 billion in 1997, AAG markets
its products in every state except New York through approximately 1,500
registered agents.
COTTON STATES LIFE INSURANCE COMPANY ("COTTON STATES"). Cotton States is a
holding company whose subsidiaries market individual life insurance, payroll
deduction life insurance, guaranteed-simplified issue life insurance and
individual annuities. Life insurance related premiums accounted for 25% of
revenue in 1997 while investment income constituted 60%. The maximum individual
insurance policy that is offered is $100,000. Cotton States markets its
products through an agency force of 1,400. All of its business is conducted
in the southeastern United States.
KANSAS CITY LIFE INSURANCE COMPANY ("KANSAS CITY"). Kansas City markets
life insurance and annuities through their wholly owned subsidiaries Sunset
Life Insurance Company of America and Old American Insurance Company. The
life insurance segment constituted 86% of Kansas City's revenue in 1997. The
company focuses its marketing efforts primarily on the senior market to cover
retirement and funeral needs. Marketing is executed through an agent force
of approximately 1,000 in 48 states.
In analyzing these "comparable" companies and assessing their comparability
to the Company, the Financial Advisor considered certain key facts (e.g., size,
target market, profitability, etc.). The following provides an overview of
significant differences between the "comparable" companies and the Company:
(1) AAG offers only annuity products. Over one third of the Company's
revenues are derived from life insurance premiums. Also AAG's total
asset base is ten times greater than the Company's;
(2) the operations of Cotton States are concentrated only in the southern
region of the United States; the Company, on the other hand, has a
defined global presence;
(3) agents employed by Cotton States also serve as underwriters for the
parent company;
(4) the products sold by the "comparable" companies are underwritten by
parent or related companies;
(5) none of the "comparable" companies has a customer base or agent base
similar to the Company's;
(6) the equity of the "comparable" companies was not severely restricted
by shareholder agreements (as is the case with the Class A Stock and
the Class B Stock of the Company);
(7) the "comparable" companies' equity was not principally owned by the
agents who are responsible for the generation of revenue (as is the
case with the Company); and
(8) the equity owners of the "comparable" companies did not have to be
registered life insurance agents in the state of Texas.
Based on these differences, the Financial Advisor assigned minimal weight
to the value indications generated by the market multiple approach.
In order to apply multiples derived from the "Market Multiple Approach"
to the historical parameters of the Company, the Financial Advisor first
needed to adjust the historical financial performance of the Company to
reflect the impact of the various incentive compensation plans enacted by the
IRA Board prior to the Transaction. After making such adjustments, the market
multiple approach yielded value indications for the Class B Stock ranging
from $10.38 per share to $20.53 per share. This value range reflects
management's assertions that there will be insufficient cash flow
prospectively to fund dividends or capital appreciation on the Class B Stock
due to the impact of the various incentive compensation plans. Based on this
value range and the transaction price of $28.24 per share of Class B Stock,
the Financial Advisor considered the indications of value derived from the
market multiple approach as supportive of its ultimate conclusion.
27
<PAGE>
CURRENT/HISTORICAL MARKET PRICING AND SHAREHOLDER AGREEMENT ANALYSIS. In
addition to the traditional valuation, the Financial Advisor considered the
financial implications of the agreements signed by each of the Class A
Shareholders and Class B Shareholders as key to its determination of fairness
to the IRA Shareholders. According to the Class B Shareholder agreements,
the Class B Stock price is set at the discretion of management on an annual
basis. Company management has historically adjusted the per share price of
Class B Stock based on a consistently applied formulaic approach, and $28.24
reflects the stock price determined in 1998 utilizing that approach. The
valuation methodologies described above and applied to the Company's pro
forma operating results yield value indications for the Class B Stock below
the $28.24 cash consideration to be received in the transaction by the
holders of Class B Stock. The pro forma operating results of the Company
reflect implementation by the IRA Board of various incentive compensation
plans that will significantly diminish the Company's ability to fund future
dividends and capital appreciation for the Class A Stock and the Class B
Stock. The foregoing fact pattern was a key element in the Financial
Advisor's determination that the transaction is fair to the Class B
Shareholders and the Class A Shareholders from a financial point of view.
Further, the Class B Shareholders have the right to "put" the Class B Stock
back to the Company at the price determined by management. Based on this
fact, and the fact that the various incentive compensation plans enacted by
the IRA Board will severely reduce the ability of the Company to fund future
dividends and capital appreciation on the Class B Stock, the Class B
Shareholders maximize the present value of their investment in the Company by
accepting the cash payment of $28.24.
For the Class B Stock owned by Class A Shareholders, the above analysis is
also appropriate. However, due to negative tax implications of redeeming the
Class B Stock while accepting Surviving Corporation Voting Stock for the Class A
Stock, the Class A Shareholders have also been given the option to accept
Surviving Corporation Nonvoting Stock in exchange for their Class B Stock.
Although the Surviving Corporation Nonvoting Stock will have a fixed price of
$28.24 per share, the owners of the Surviving Corporation Nonvoting Stock will
receive a "competitive reinvestment" dividend to compensate for the lack of
reinvestment opportunity.
For the Class A Stock, the price is set at five times the price of the
Class B Stock, and holders of Class A Stock have never been paid dividends. The
Class A Shareholders will receive five shares of Surviving Corporation Voting
Stock in exchange for each share of their Class A Stock. Since the Surviving
Corporation Voting Stock and the Surviving Corporation Nonvoting Stock will have
a fixed price of $28.24 per share, the five-for-one exchange fairly adjusts for
the value as delineated in the Class A Shareholder Agreements.
Based upon the proposed Surviving Corporation Shareholder Agreement, the
Surviving Corporation Voting Stock and the Surviving Corporation Nonvoting
Stock will receive dividends to pay tax liabilities that will offset the S
corporation tax liabilities. In addition, all Surviving Corporation Common
Stock will receive a competitive reinvestment dividend on the current price
of $28.24 set by the Surviving Corporation's Board of Directors. The
operative events set forth in the Surviving Corporation Shareholders'
Agreement, which trigger repurchase of the Surviving Corporation Common Stock
by the Company, are comparable to the events outlined in the existing
shareholder agreements that trigger repurchase of the Class A Stock or Class
B Stock by the Company.
ADJUSTED BOOK VALUE APPROACH. Due to the fact that the Company is an
insurance agency (and is therefore not asset intensive) and is not
contemplating liquidation, the Adjusted Book Value Approach was deemed
inappropriate for the valuation of the stock of the Company on a going
concern basis. The Financial Advisor believes that liquidation of the Company
is particularly inappropriate in this case due to the fact that Company's
primary mission is to provide for the long-term viability of its customers as
well as its primary asset/constituency, its agents. The Financial Advisor
believes that liquidation would be contrary to the Company's mission and
would result in the unemployment of all or a significant portion of the Class
A Shareholders and Class B Shareholders (who are current employees of the
Company) as well as the elimination of the opportunity for younger
agents/Class B Shareholders to participate in the Company's various incentive
compensation plans.
Based upon the foregoing, it is the Financial Advisor's opinion that, as of
the date of this opinion, the Transaction is fair, from a financial point of
view, to the Class A Shareholders and the Class B Shareholders. The
Financial Advisor believes that its analyses must be considered as a whole
and that selecting portions of its analyses and of the factors considered by
it, without considering all factors and analyses, could create a misleading
view of the processes underlying its opinion. The preparation of a fairness
opinion is a complex process and is not necessarily susceptible to partial
analysis or summary description.
28
<PAGE>
As compensation for the professional services rendered by the Financial
Advisor, the Company agreed to pay the Financial Advisor a non-refundable
professional fee on the terms outlined below. The Financial Advisor's total fee
for services in rendering the Financial Advisor Opinion was $250,000. Of such
fee, $100,00 was due and payable upon execution of the engagement letter,
$100,000 was due and payable when the Financial Advisor informed IRA that it was
prepared to render the Financial Advisor Opinion, and the balance was due and
payable upon issuance of the Financial Advisor Opinion. Additionally, IRA
agreed to reimburse the Financial Advisor for its actual out-of-pocket expenses
(including the fees and expenses of outside counsel) incurred by the Financial
Advisor in connection with the engagement (not to exceed an aggregate of $25,000
without the mutual written agreement of the Financial Advisor and the
Committee). Neither the employment to conduct its analysis, nor the
compensation for its engagement, was contingent upon the tenor of the
conclusions ultimately reported.
The Financial Advisor has performed numerous valuation and fairness opinion
engagements encompassing a wide and diversified range of industries, including
the insurance industry. The Financial Advisor was retained by the Special
Committee after consideration by it of several candidate firms.
As noted above, certain internal management cash flow analyses were
provided by the Company to the Financial Advisor for purposes of its analysis
in arriving at its Opinion. These analyses were based upon pessimistic
assumptions with the intent of ascertaining whether the Company could
adequately service debt resulting from the Merger. As a matter of course,
the Company does not publish or make generally available internal forecasts
as to its future performance, earnings or financial condition, and such
information was not prepared with a view to public disclosure or in
accordance with applicable accounting guidelines. These analyses were based
on numerous variables and assumptions which are inherently uncertain,
difficult to predict and may not be within the control of the Company,
including without limitation economic and competitive conditions.
Consequently, actual results may differ materially from those set forth in
such analyses.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Class B Shareholders should be aware in considering whether to vote in
favor of the Merger that the Management Group along with other Class A/B
Shareholders, have interests in the Merger in addition to their interests as
shareholders of IRA generally. Those interests relate to, among other things,
the fact that each of the members of the Management Group is a Class A
Shareholder and, as such, upon consummation of the Merger will be a
shareholder of the Surviving Corporation, unless such member of the
Management Group elects to seek appraisal rights for his Class A Stock. As a
result, each member of the Management Group that is currently an officer or
director of the Company will retain his or her position with the Surviving
Corporation upon consummation of the Merger. Further, the IRA Board and the
executive officers of IRA will be the directors and executive officers of the
Surviving Corporation upon consummation of the Merger.
Upon consummation of the Merger, the Surviving Corporation will be owned
by the following persons, assuming that none of such persons elects to seek
appraisal rights with respect to his or her shares: (i) the Class A
Shareholders; (ii) the Class A/B Shareholders that elect to receive the Class
B Nonvoting Stock Consideration with respect to their Class B Stock; and
(iii) the First Command Shareholders.
29
<PAGE>
The following table sets forth ownership information as of September 30,
1998 with respect to the Surviving Corporation, assuming that all of the
Class A/B Shareholders elect to receive the Class B Nonvoting Stock
Consideration with respect to their shares of Class B Stock and assuming that
none of the Class A/B Shareholders or the First Command Shareholders elect to
seek appraisal rights with respect to their shares. Members of the
Management Group are denoted with an *.
<TABLE>
POSITION WITH AMOUNT AND
NAME AND ADDRESS THE SURVIVING TITLE NATURE OF PERCENT
OF BENEFICIAL OWNER CORPORATION OF CLASS BENEFICIAL OWNERSHIP OF CLASS
------------------- ----------- -------- -------------------- --------
<S> <C> <C> <C> <C>
Lamar C. Smith (1)* Director, Chairman of Voting 10 shares 8.00
the Board and Chief Nonvoting 40,010 shares 11.13
Executive Officer MAP Units 46,272 units 3.69
James N. Lanier (1)* Director, President and Voting 10 shares 8.00
Chief Operating Officer Nonvoting 18,010 shares 5.01
MAP Units 22,006 units 1.76
Howard M. Crump (1)* Director and Senior Vice Voting 10 shares 8.00
President and Director Nonvoting 26,010 shares 7.24
of Marketing MAP Units 30,840 units 2.46
Hal N. Craig (1)* Director and Vice Voting 5 shares 4.00
President and Director Nonvoting 5,600 shares 1.56
of Insurance MAP Units 6,770 units 0.54
Donaldson D. Frizzell (1)* Director and Vice Voting 5 shares 4.00
President of Investments Nonvoting 7,100 shares 1.97
MAP Units 8,421 units 0.67
Jerry D. Gray* Director and Regional Voting 5 shares 4.00
5705 Cameron Hall Place Agent Nonvoting 20,000 shares 5.56
Atlanta, GA 30328 MAP Units 23,191 units 1.85
David P. Thoreson* Director and Regional Voting 5 shares 4.00
2016 Empire Mine Circle Agent Nonvoting 27,850 shares 7.75
Gold River, CA 95670 MAP Units 31,837 units 2.54
Carroll H. Payne II* Director Voting 15 shares 12.00
1814 8th Avenue Nonvoting 46,986 shares 13.07
Suite A-3 MAP Units 52,400 units 4.18
Fort Worth, TX 76110
Naomi K. Payne* Director Voting 15 shares 12.00
11 Marion Terrace Nonvoting 46,977 shares 13.07
Brookline, MA 02146 MAP Units 52,400 units 4.18
Freda J. Payne* Voting 15 shares 12.00
6812 Riverdale Nonvoting 46,978 shares 13.07
Fort Worth, TX 76132 MAP Units 52,400 units 4.18
Debra S. Payne Voting 15 shares 12.00
5910 N. Central Expressway Suite Nonvoting 46,528 shares 12.94
1000 MAP Units 52,400 units 4.18
Dallas, TX 75206
Richard E. Giles Voting 5 shares 4.00
13003 Richards Nonvoting 5,400 shares 1.50
Overland Park, KS 66213 MAP Units 7,079 units 0.57
Margaret L. Galda Voting 5 shares 4.00
2741 Mannerwood Trail Nonvoting 4,500 shares 1.25
Fort Worth, TX 76109 MAP Units 5,548 units 0.44
Edward T. Elmendorf Jr. Voting 5 shares 4.00
6410 Southwest Blvd. Nonvoting 17,550 shares 4.88
Suite 200 MAP Units 20,219 units 1.61
Fort Worth, TX 76109
Total Voting 125 shares 100.00
Nonvoting 359,499 shares 100.00
MAP Units 411,783 units 32.87 (2)
</TABLE>
- ------------------
(1) The business address of this person is 4100 South Hulen, Fort Worth, Texas
76113.
(2) As of September 30, 1998, there were 1,252,889 MAP Units outstanding.
In addition, upon consummation of the Merger, these shareholders of the
Surviving Corporation will be entitled to receive any dividends that are
declared by the Board of Directors of the Surviving Corporation. The IRA Board,
which will be the Board of the Surviving Corporation, subject to the fiduciary
duties of the Board of Directors of the Surviving Corporation and the ongoing
financial condition of the Surviving Corporation, will declare and pay dividends
that are pro rata to all shareholders on the Surviving Corporation Common Stock
that are intended to approximate the income that the Class A/B Shareholder would
have received from the competitive reinvestment of the Class B Cash
Consideration, taking into account income tax considerations. See "--Certain
Effects of the Merger; Plans for the Company after the Merger."
The Merger Agreement provides that IRA, and, after the Effective Time, the
Surviving Corporation, will indemnify (and advance expenses to) each present and
former director, officer and employee of IRA and its subsidiaries (the
"Indemnified Parties") to the fullest extent permitted under applicable law or
under the Articles of Incorporation and Bylaws of IRA and the Surviving
Corporation against any costs incurred in connection with any claim, proceeding
or investigation relating to matters occurring prior to or at the Effective
Time, including the transactions contemplated by the Merger Agreement. See "THE
PROPOSED MERGER--The Merger Agreement--Indemnification."
Other than the recommendation of the Special Committee, the IRA Board,
First Command and the Management Group, neither IRA nor First Command is
aware of any recommendations in support of or in opposition to the Merger.
EMPLOYMENT AGREEMENTS
The IRA Board anticipates that the Surviving Corporation will enter into
employment agreements with each of the Surviving Corporation Shareholders who
are also employees of the Surviving Corporation. Pursuant to these
employment agreements, it is expected that each of the Surviving Corporation
Shareholders will receive compensation for services rendered to the Surviving
Corporation and reimbursement for certain expenditures in furtherance of the
Surviving Corporation's business paid by the Surviving Corporation
Shareholder. The actual amount of compensation to be received by the
Surviving Corporation Shareholders will not be described in or affected by
the employment agreements. Such compensation will be determined as currently
done so by the IRA Board or Chief Executive Officer and will be initially the
same after the consummation of the Merger as prior to the Merger. In
addition, the IRA Board believes that the Surviving Corporation will offer to
the Surviving Corporation Shareholders, pursuant to the employment
agreements, (i) the right to participate in the Mission Accomplishment Plan
and any other equity-based compensation incentives offered by the Surviving
Corporation in the future (currently, only the Company's Defined Career
Compensation Plan) and (ii) reimbursement of amounts expended up to $1,000 for
the cost of tax preparation assistance due to the complexity of preparing the
Surviving Corporation Shareholder's individual tax return because of the S
corporation status of the Surviving Corporation.
CERTAIN TRANSACTIONS IN IRA COMMON STOCK
PURCHASES BY IRA. The following table sets forth the purchases by IRA of
the Class B Stock since October 1, 1995, including the number of shares of Class
B Stock purchased, the range of prices paid by IRA and the average purchase
price for each quarterly period of IRA during such period.
<TABLE>
<CAPTION>
Number of Highest Price Lowest Price Average Price
Quarter Ended Shares Purchased Per Share Per Share Per Share
------------- ---------------- --------- --------- ---------
<S> <C> <C> <C> <C>
December 31, 1995 25,975 $25.60 $25.28 $25.30
March 31, 1996 48,976 26.08 25.76 25.84
June 30, 1996 53,088 26.56 26.24 26.39
September 30, 1996 3,475 27.04 26.72 26.92
December 31, 1996 24,810 27.04 27.04 27.04
March 31, 1997 35,725 27.04 27.04 27.04
June 30, 1997 16,375 27.04 27.04 27.04
September 30, 1997 1,675 27.04 27.04 27.04
December 31, 1997 10,575 27.34 27.14 27.15
March 31, 1998 85,324 27.64 27.44 27.45
June 30, 1998 10,075 27.94 27.74 27.75
September 30, 1998 2,025 28.24 28.04 28.18
------- ------
Total 318,098 26.75
</TABLE>
30
<PAGE>
RECENT TRANSACTIONS. Within the last sixty days, IRA has purchased Class B
Stock from certain agents of IRA in private repurchases, on the date, in the
amounts and at the price per share indicated:
<TABLE>
<CAPTION>
Date Number of Shares Price Per Share
---- ---------------- ---------------
<S> <C> <C>
September 11, 1998 250 $ 28.24
September 18, 1998 150 28.24
September 24, 1998 1,025 28.24
</TABLE>
PURCHASES BY MANAGEMENT GROUP. The following table sets forth the
purchases by certain members of the Management Group of the Class B Stock since
October 1, 1995, including the member, the number of shares of Class B Stock
purchased, the range of prices paid by such member and the average purchase
price for each quarterly period of such member during such period.
<TABLE>
Number of Highest Lowest Average
Member Quarter Ended Shares Purchased Price Per Share Price Per Share Price Per Share
------ ------------- ---------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C>
Lamar C. Smith September 30, 1996 2,000 26.56 26.56 26.56
September 30, 1997 4,000 27.04 27.04 27.04
James N. Lanier September 30, 1996 2,000 26.56 26.56 26.56
September 30, 1997 4,000 27.04 27.04 27.04
Howard M. Crump September 30, 1996 2,000 26.56 26.56 26.56
September 30, 1997 4,000 27.04 27.04 27.04
Hal N. Craig September 30, 1996 500 26.56 26.56 26.56
September 30, 1997 600 27.04 27.04 27.04
Donaldson D. Frizzell September 30, 1996 500 26.56 26.56 26.56
September 30, 1997 600 27.04 27.04 27.04
Jerry D. Gray September 30, 1997 1,500 27.04 27.04 27.04
David P. Thoreson September 30, 1996 1,000 26.56 26.56 26.56
September 30, 1997 1,500 27.04 27.04 27.04
Carroll H. Payne II September 30, 1996 2,000 26.56 26.56 26.56
Naomi K. Payne September 30, 1996 2,000 26.56 26.56 26.56
Freda J. Payne September 30, 1996 2,000 26.56 26.56 26.56
</TABLE>
Except as described above, none of IRA, First Command nor any of their
respective executive officers or directors have participated in any transaction
involving Class B Stock in the last sixty days.
ACCOUNTING TREATMENT
The Merger of the Company into First Command, with First Command
becoming the Surviving Corporation, will be treated for accounting purposes
as a business combination accounted for as a purchase. The conversion of
each share of Class A Stock of the Company issued and outstanding into five
shares of the Surviving Corporation Voting Stock will, in effect, result in
the net assets of First Command being recorded at their existing carrying
value in conformity with GAAP, since the book value of First Command would
approximate fair value. The purchase of the Class B Stock for cash will
reduce shareholder's equity of the Surviving Corporation by a like amount.
In addition, certain accounting adjustments will be made as a result of
the Merger to the financial statements of the Surviving Corporation. For
GAAP purposes, certain deferred tax asset accounts will not be reversed at
the Effective Date. The majority of the Company's deferred tax asset account
is comprised of the effect of the future tax deduction of agent Deferred
Career Commission Plan. Also for GAAP purposes, certain deferred tax
liability accounts, with the exception of those related to depreciable assets
expected to be used in operations, will not be reversed at the Effective
Time. The remainder of the deferred tax liability account should remain on
the books of the Surviving Corporation for ten years until the built-in gain
income tax provision expires. The majority of the Company's deferred tax
liability account is comprised of the effect of the potential future tax
recognition of its current unrealized gains on investments.
REGULATORY FILINGS AND APPROVALS
After the Merger, the Surviving Corporation will file a disclosure document
with the Office of Thrift Supervision as the holding company of First Command
Bank. Also after the Merger, the Surviving Corporation will file a report
notifying the Texas Department of Insurance of the change in the corporate
members of the Surviving Corporation and the change from IRA's Articles of
Incorporation to those of the Surviving Corporation.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary discussion of the material U.S. federal
income tax considerations for Class A Shareholders and Class B Shareholders
regarding the Merger and for Surviving Corporation Shareholders regarding the
ownership of Surviving Corporation Common Stock after the Merger. This
summary discussion includes, where so indicated, certain of the opinions
rendered by Ernst & Young in its Tax Opinion, which is attached hereto as
Annex F. (Except as otherwise specifically indicated herein, the following
federal income tax considerations are not included in the Tax Opinion.) The
Tax Opinion is based on certain assumptions, facts and representations
provided by IRA and First Command management and is subject to certain
limitations and qualifications as noted therein. The facts and
representations provided by management have not been verified by Ernst &
Young in rendering its Tax Opinion.
31
<PAGE>
The Company has not requested, and does not intend to request, a ruling from the
Internal Revenue Service (the "IRS") with regard to any of the matters discussed
in the Tax Opinion or herein. Unlike a ruling from the IRS, an opinion is not
binding on the IRS, and there can be no assurance that the IRS will not take a
position contrary to one or more of the positions included in the Tax Opinion or
discussed herein or that such positions will be upheld by the courts if
challenged by the IRS.
This summary discussion does not address all of the tax considerations that
may be relevant to an IRA shareholder in light of his or her particular
circumstances. For this summary discussion, the Company has assumed that the
shares of Class A Stock and Class B Stock are held as "capital assets" (within
the meaning of Section 1221 of the Code). In addition, this summary discussion
does not consider the effect of any applicable foreign, state, local or other
tax law, or of U.S. estate and gift tax laws.
This summary discussion is based upon an interpretation of the Code,
Treasury Regulations promulgated thereunder, court decisions and administrative
rulings and practice, all in effect as of the date hereof. As noted above, the
IRS is not precluded from adopting a contrary position. In addition, there can
be no assurance that future legislation or judicial or administrative changes or
interpretations will not adversely affect the accuracy of the statements and
conclusions set forth herein. Any such changes or interpretations could be
applied retroactively and could affect the tax consequences of the Merger and
the considerations of Surviving Corporation Shareholders after the Merger.
THE U.S. FEDERAL INCOME TAX DISCUSSION SET FORTH BELOW IS INTENDED FOR
GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE TO A PARTICULAR SHAREHOLDER'S
SITUATION. PERSONS CONSIDERING AN EXCHANGE OF CLASS A STOCK AND/OR CLASS B STOCK
FOR THE MERGER CONSIDERATION SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE
PARTICULAR TAX CONSEQUENCES OF THE EXCHANGE, INCLUDING THE TAX CONSEQUENCES
UNDER FOREIGN, STATE, LOCAL OR OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF
CHANGES (POSSIBLY INCLUDING RETROACTIVE CHANGES) IN U.S. FEDERAL AND OTHER TAX
LAWS.
CERTAIN CONSEQUENCES OF REORGANIZATION STATUS. The Tax Opinion includes
an opinion that the Merger should constitute a "reorganization" (within the
meaning of Section 368(a) of the Code), and that the Merger should have the
following U.S. federal income tax consequences:
THE COMPANY AND THE SURVIVING CORPORATION. The Tax Opinion includes an
opinion that no gain or loss should be recognized by either the Company or
the Surviving Corporation as a result of the Merger (Sections 361, 357(a) and
1031(a) of the Code). The Tax Opinion also includes an opinion that the tax
basis and holding period of the Company's assets in the hands of the
Surviving Corporation should be the same as the tax basis and holding period
of the Company immediately prior to the Merger (Sections 362(b) and 1223(a)
of the Code).
CLASS A/B SHAREHOLDERS. The Tax Opinion includes an opinion that a
Class A/B Shareholder should not recognize gain or loss upon the exchange of
his or her Class A Stock and Class B Stock solely for Surviving Corporation
Common Stock (Section 354(a) of the Code). The Tax Opinion also includes an
opinion that such shareholder's aggregate tax basis in his or her shares of
Surviving Corporation Common Stock should be the same as his or her aggregate
tax basis in
32
<PAGE>
his or her shares of Class A Stock and Class B Stock surrendered in exchange
therefor, decreased by the amount of cash or the fair market value of boot
received and increased by any gain recognized on the exchange (Section 358(a)
of the Code). The Tax Opinion includes an opinion that such shareholder's
holding period in shares of Surviving Corporation Common Stock should include
his or her holding period in his or her shares of Class A Stock and Class B
Stock surrendered in exchange solely therefor (Section 1223(i) of the Code).
A Class A/B Shareholder who (i) exchanges his or her Class A Stock for
Surviving Corporation Voting Stock and (ii) elects to take cash in exchange
for his or her Class B Stock, should recognize income to the extent of the
lesser of (x) the excess of the value of his or her Class A and Class B Stock
over his or her tax basis in such stock, and (y) the amount of cash received.
Such income should be treated as a dividend unless such shareholder is
entitled, based on his or her particular circumstances and certain other
factors, to take the position that the exchange, as to such shareholder, does
not have the effect of the distribution of a dividend under Section 356(a)(2)
of the Code. If the exchange has the effect of a dividend, income will be
ordinary income taxable at rates up to 39.6%. If the exchange, as to a
shareholder, does not have the effect of a dividend, such income will be
capital gain. Any Class A/B Shareholder electing the Class B Cash
Consideration should consult his or her own tax advisor(s) concerning the
tax consequences of electing that option.
Each Class A/B Shareholder will be required to attach a statement to
his or her federal income tax return for the year of the Merger that contains
information listed in Treasury Regulation Section 1.368-3(b).
SHAREHOLDERS WHO OWN ONLY CLASS B STOCK. The Tax Opinion includes an
opinion that a Class B Shareholder who does not own any Class A Stock and is
not related, under the constructive ownership rules of Section 318 of the
Code, to any Surviving Corporation Shareholder after the Merger, who
exchanges his or her Class B Stock solely for cash should recognize capital
gain (or loss) to the extent the cash received exceeds (or is exceeded by)
the tax basis in his or her Class B Stock (Section 302(b) of the Code).
Shareholders should consult their own tax advisor concerning the tax
consequences of receiving solely cash for Class B Stock with respect to the
new capital gains tax rates and holding period rules effective for
transactions after January 1, 1998.
CERTAIN POST-MERGER CONSIDERATIONS FOR SURVIVING SHAREHOLDERS.
TREATMENT AS AN S CORPORATION. The Tax Opinion includes an opinion that
the Surviving Corporation should be an S corporation immediately after the
Merger. However, the Tax Opinion does not provide assurance as to future
facts and circumstances that could affect the tax status of the Surviving
Corporation. The Surviving Corporation intends to be organized and operated
in a manner to meet, on a continuing basis, the Code requirements for
qualification as an S corporation for federal income tax purposes. In order
to qualify as an S corporation, the Surviving Corporation cannot be an
ineligible corporation (as defined in Section 1361(b)(2) of the Code and
cannot have (i) more than 75 shareholders, (ii) as a shareholder a person
(other than certain specified estates, trusts and tax exempt organizations)
who is not an individual, (iii) a nonresident alien as a shareholder, and
(iv) more than one (1) class of stock (other than differences in voting
rights). The Articles of Incorporation of the Surviving Corporation and the
Surviving Corporation Shareholders' Agreement provide for, among other
things, certain restrictions on the transfer of the Surviving Corporation
Common Stock and the requirement that Surviving Corporation Shareholders
tender their shares to the Surviving Corporation upon the occurrence of
certain operative events, each of which is provided at least in part to
preserve the Surviving Corporation's status as an S corporation. See
"DESCRIPTION OF THE SURVIVING CORPORATION CAPITAL STOCK--Restrictions on
Transfers of Shares." However, no assurance can be given that such
requirements will be met or that the Company will be so qualified at any time.
TAXATION OF SURVIVING CORPORATION. Provided the Surviving Corporation is
an S corporation, it generally will not pay any federal income tax. Instead,
its items of income, gains, losses, deductions and credits will be allocated
to the Surviving Corporation Shareholders and taken into account on their
individual federal income tax returns. However, as indicated in the Tax
Opinion, the Surviving
33
<PAGE>
Corporation will be subject to the "built-in gains tax" provisions of Section
1374 of the Code to the extent any asset received in the Merger has a "net
unrealized built-in gain" (within the meaning of Section 1374(d)(1) of the Code)
at the Effective Time and is disposed of by the Surviving Corporation during the
ten-year "recognition period" (within the meaning of Section 1374(d)(7) of the
Code) after that date. In addition, if an S corporation has subchapter C
earnings and profits at the close of its tax year and more than 25% of its
gross receipts are "passive investment income" (within the meaning of Section
1362(d)(3)(C) of the Code), the corporation may be subject to tax on its
"excess net passive" income (within the meaning of Section 1375(b) of the
Code). In addition, if these two conditions are met for three successive
years, its S corporation status will be automatically terminated. The Company
believes that, although the Surviving Corporation will have subchapter C
earnings and profits after the Merger, the Surviving Corporation will be
operated in such a manner to avoid such termination.
TAXATION OF SURVIVING CORPORATION SHAREHOLDERS. Provided the Surviving
Corporation is an S corporation, the Surviving Corporation will allocate to
and among the Surviving Corporation Shareholders its items of income, gains,
losses, deductions and credits for federal income tax purposes. Each
shareholder will be required to report on his or her federal income tax
return his or her such distributive share of such items and will be subject
to tax on such amounts. Pursuant to the Articles of Incorporation of the
Surviving Corporation and the Surviving Corporation Shareholders' Agreement,
the Surviving Corporation has agreed to declare and make distributions to the
Surviving Corporation Shareholders in a timely manner to allow them to pay
their tax liability attributable to their distributive shares of its taxable
income. See "DESCRIPTION OF THE SURVIVING CORPORATION CAPITAL
STOCK--Subchapter S Provisions--Distributions to Pay Tax Liabilities."
Although there can be no assurances that a Surviving Corporation Shareholder
will not have a tax burden from such allocation in an amount in excess of the
amount of cash previously distributed by the Surviving Corporation to such
shareholder (thus requiring such shareholder to use funds from other sources
to pay any tax liability arising from such allocation), the Surviving
Corporation believes this result is highly unlikely. EACH SURVIVING
CORPORATION SHAREHOLDER SHOULD CONSULT HIS OR HER OWN TAX ADVISOR(S)
CONCERNING HIS OR HER OWNERSHIP OF SURVIVING CORPORATION COMMON STOCK.
TAX OPINION ENGAGEMENT. Ernst & Young, who is also the principal
independent accountants for the Company and First Command, has agreed to be
paid by the Company a non-refundable professional fee for its engagement with
respect to the Tax Opinion of $180,000, payable upon delivery of the Tax
Opinion. Additionally, the Company has agreed that, in the event Ernst &
Young is requested or authorized by the Company (including its successor) or
is required by legal process to produce its documents or its personnel
as witnesses with respect to services for the Company, the Company will, so
long as Ernst & Young is not a party to the proceeding or the subject of the
investigation, as the case may be, in which information is sought, reimburse
Ernst & Young for its professional time and expenses, as well as the fees
and expenses of its counsel, incurred in responding to such requests.
CERTAIN INFORMATION CONCERNING IRA
GENERAL
The Company began operations in January 1964, as a sole proprietorship
owned by Carroll H. Payne, doing business as the "Carroll H. Payne Agency." On
January 1, 1971, the name was changed to "Independent Research Agency for Life
Insurance." On January 1, 1977, the Company was organized as a partnership (the
"IRA Partnership") under the general partnership laws of the State of Texas. On
March 9, 1981, the IRA Partnership exchanged all of its assets relating to the
operation of its life insurance business (which constituted substantially all of
its assets) to Independent Research Agency for Life Insurance, Inc. ("IRA"), a
Texas corporation formed by the partners of the IRA Partnership on December 9,
1980. Thereafter, the IRA Partnership continued in existence under another
name, but all of its former life insurance operations are now owned and
conducted by the Company. The IRA Partnership was dissolved in 1992. IRA is
engaged in the business of a life insurance general agency for sales to United
States military personnel. IRA has six wholly-owned subsidiaries engaged in the
same business in the states of Hawaii, Wyoming, Montana, New York, Nevada and
Alabama, respectively. IRA's wholly-owned subsidiary, United Services Planning
Association, Inc., is also a Texas corporation and is a broker-dealer of
securities. IRA's wholly-owned subsidiary, First Command Bank, is a federal
savings bank. IRA's principal executive offices are located at 4100 South Hulen
Street, Fort Worth, Texas 76109, and its telephone number is (817) 731-8621.
For more information regarding the business and other information regarding
IRA, see the IRA 10-K, which has been delivered to the Class A Shareholders and
the Class B Shareholders as Annex D to this Proxy Statement.
RECENT DEVELOPMENTS
On June 25, 1998, IRA entered into a Line of Credit Agreement (the "United
American Line of Credit") with United American Insurance Company ("United
American Insurance"), pursuant to which United American Insurance agreed to
loan IRA up to $27,000,000. IRA intends to advance approximately $7,000,000
of the proceeds under the United American Line of Credit to First Command
pursuant to the Line of Credit (as defined herein) that First Command has
entered into with IRA. See "CERTAIN INFORMATION CONCERNING FIRST
COMMAND--Business." The remainder of the United American Line of Credit will
be used, if at all, for general corporate purposes. The interest rate on
funds advanced under the United American Line of Credit is 7% per annum, and
advances may be made from time to time until November 30, 2001, upon the
request of IRA. Prior to December 1, 2001, interest on the unpaid principal
balance outstanding under the United American Line of Credit is due and
payable monthly as it accrues, commencing on the last day of the month in
which the first advance is made by United American Insurance. However, if IRA
is entitled to advances under the United American Line of Credit, United
American Insurance will, at IRA's request, make an advance under the United
American Line of Credit that is sufficient to pay the accrued interest that
is then due and payable. After November 30, 2001, the unpaid principal and
accrued and unpaid interest on principal amounts outstanding under the United
American Line of Credit shall be converted into a term loan and shall be due
and payable in 180 equal quarterly installments, with the final payment on
November 30, 2016. The United American Line of Credit is secured by shares
in mutual fund holdings of IRA. IRA intends to repay amounts due under the
United American Line of Credit through cash flow from its operations. In the
event of the failure of IRA to pay any amount when due, the failure of IRA to
perform certain covenants, false representations by IRA, bankruptcy or
insolvency of IRA, the execution of the collateral, or decrease in the value
of the collateral such that the collateral does not exceed 90% of the loan
balance, United American Insurance may (i) exercise all rights with respect
to the collateral; (ii) foreclose or reduce its claim to judgment; (iii) sell
the collateral; (iv) purchase the collateral; (v) apply for a receiver for
the collateral; (vi) retain the collateral in satisfaction of the
indebtedness; or (vii) realize upon the collateral in any other manner
permitted by the issuer of the mutual funds.
34
<PAGE>
DIRECTORS AND EXECUTIVE OFFICERS OF IRA
The directors and executive officers of IRA will be the directors and
executive officers of the Surviving Corporation after the Merger. For more
information concerning IRA's directors and executive officers, including certain
information regarding executive compensation, see the IRA 10-K, which has been
delivered to the Class A Shareholders and the Class B Shareholders as Annex D to
this Proxy Statement.
On May 8, 1998, the IRA Board elected James J. Ellis and Logan Dickinson as
directors of IRA. See "SPECIAL FACTORS--Background of the Merger."
James J. Ellis has operated his own insurance practice since retiring as
General Manager of Mutual of New York in January of 1992. Mr. Ellis joined
Mutual of New York in 1960 and was appointed General Manager in 1976. Mr. Ellis
is a member of the Board of Jack Henry and Associates and the Advisory Board of
Westwood Trust, the First National Bank Park Cities, Merit Medical Systems,
Inc. and Sentir, Inc. His business address is Regency Plaza, LB 72, 3710
Rawlins, Suite 1010, Dallas, Texas 75219-4239.
Logan Dickinson has served since 1982 as President and Managing Principal
of Compensation Strategies Group of Texas, Inc., which provides planning for
employee benefits, life and health insurance and administers qualified
retirement and benefit plans. Mr. Dickinson is a Chartered Life Underwriter,
Chartered Financial Consultant and a CPA. His business address is 314 Main
Street, Suite 202, Fort Worth, Texas 76102.
Each of the directors and executive officers of IRA is a United States
citizen, and, to the knowledge of IRA, none of the directors or executive
officers of IRA has, during the last 5 years, (i) been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining further violations of, or prohibiting activities
subject to, federal or state securities laws or finding any violation of such
laws.
MISSION ACCOMPLISHMENT PLAN
On June 27, 1998, the IRA Board authorized the Mission Accomplishment Plan,
pursuant to which certain agents, members of management and key employees of IRA
will be awarded stock appreciation rights ("SARs"), along with dividend
equivalent rights ("DERs" and, together with SARs, "MAP Units").
The SARs award holders the right to participate in changes in the value
of the Company, based on a formula established by the IRA Board. While the
IRA Board may change such formula, the initial policy of the IRA Board is to
value each SAR based on the change in the Company's per SAR unit value as
reported by the Company using GAAP; provided, however, that this per unit
value will be reduced by the dividend equivalent declared by the Company for
payment based on the current year's earnings, if any. For this purpose, the
per SAR unit value does not include the effect of reporting the Company's
investments at market value net of estimated federal income taxes as stated
in SFAS 115. Each SAR will carry a basis equal to the SAR unit value at the
time of issuance, and the appreciation in the value of the SAR will be paid
to participants following their termination from the Company or upon the
maturity of the SAR ten years after the issuance of the SAR. The Company
expects that the value of each SAR will be established no less frequently
than monthly. Although MAP Units vest upon issuance, a holder of a SAR may
exercise such SAR, upon compliance with certain conditions. These conditions
include: the participant's termination from the Company, termination of the
participant as a licensed Texas life insurance agent, death or disability of
the participant or at the end of the exercise period (which is typically ten
years). Such holder will be entitled to receive a cash payment equal to the
difference between (i) the per SAR unit value as of the last day of the
calendar quarter during which such holder provides a request for such payment
and (ii) the per SAR unit value as of the date of the grant. The Company may
unilaterally exercise SARs of any participant who holds unexercised SARs
exceeding 5% of total unexercised SARs outstanding. SAR expense will be
accrued as the unit value is earned. The exercise of the SARs will not impact
the results of operations and will only impact the Company's financial
position by the amount of the cash paid.
35
<PAGE>
The DERs provide holders the right to participate in certain dividend
equivalents that may be declared by the IRA Board. The Company expects that the
DERs will reflect payments of annual profits realized by the Company that are
not included in the SARs.
Holders of MAP Units have no voting rights with regard to the Company, and
the MAP Units are not intended to confer any other rights as a shareholder to
such holder. The MAP Units may not be transferred, pledged, assigned or
otherwise encumbered by a holder and are subject to immediate forfeiture if,
among other things, the agency appointment or employment of the holder of the
MAP Units is terminated for cause.
MAP Units will be awarded pursuant to a policy based on merit and
services provided that is adopted from time to time by the IRA Board, and only
licensed agents of IRA will be eligible to receive the MAP Units. Recipients
of MAP Units will not be required to pay any consideration for the receipt of
the MAP Units. All payments of DERs made by the Company will be made in the
same amount per unit to all holders, similar to dividends paid on capital
stock. Additionally, any change in the per SAR unit value will apply equally
to all SAR units.
On July 22, 1998 the Company issued 138,275 MAP Units to 563 of its
agents and employees, including members of the Management Group, and on
September 30, 1998 the Company issued 1,114,614 MAP Units to 550 of its
agents and employees, including members of the Management Group. The
following table sets forth the number of MAP Units issued to members of the
Management Group.
<TABLE>
Member of Management Group Number of MAP Units Distributed
-------------------------- -------------------------------
July 22, September 30,
----------- -------------
<S> <C> <C>
Lamar C. Smith 1,500 44,772
James N. Lanier 1,500 20,506
Howard M. Crump 1,500 29,340
Hal N. Craig 400 6,370
Donaldson D. Frizzell 400 8,021
Jerry D. Gray 800 22,391
David P. Thoreson 800 31,037
Carroll H. Payne II 500 51,900
Naomi K. Payne 500 51,900
Freda J. Payne 500 51,900
----- -------
Total MAP Units
held by Management Group 8,400 318,137
----- -------
----- -------
</TABLE>
After the Merger, the Surviving Corporation intends to implement the
Mission Accomplishment Plan and to award MAP Units pursuant to the Mission
Accomplishment Plan to the former Class B Shareholders who are agents, members
of management or employees at the time of award as well as to other active
agents and employees of the Surviving Corporation.
FIRST COMMAND BANK
First Command Bank ("FCB"), a wholly-owned subsidiary of the Company, is
a chartered federal savings bank located in Fort Worth, Texas. FCB commenced
operations on April 21, 1997. The Company, as a thrift holding company, is
required to disclose certain information with respect to FCB pursuant to the
Industry Guide 3 promulgated under the Securities Act, including certain
disclosures regarding average balances, yields and rates, and net interest
income related to the banking operations. In addition, Guide 3 requires
certain disclosures with respect to the investment and loan portfolio as well
as an analysis of the allowance for loan losses and short term borrowings of
the banking operations.
A significant portion of this disclosure has not been included in the
Company's annual and quarterly financial statements due to the noncomplex
structure of FCB. Given FCB's substantial growth since its inception,
average balances would not reflect the current operations of FCB. In
addition, these amounts are required to be compared to prior periods. Due to
the lack of comparability with such periods, this information has not been
included. Although FCB has experienced growth with respect to its loans and
deposits, it nevertheless has maintained a conservative investment position
by electing to keep available funds invested overnight at the Federal Home
Loan Bank. As a result, required disclosures regarding the investment
portfolio and the various investment type and maturities are not applicable.
The loan portfolio of First Command Bank consists primarily of loans to
individuals that are either unsecured or secured by mutual funds. These loans
are made at fixed rates with maturities typically ranging from one to five
years. For purposes of recording nonaccrual loans, loans more than 90 days
past due are charged to the allowance for loan losses. As of September 30,
1997, and June 30, 1998, there were no loans more than 60 days past due.
Consistent with the clients of the Company, virtually all the loans made by
FCB are to members or ex-members of the United States military. As a result,
the loan portfolio contains certain risks related to armed conflict and other
economic conditions related to the United States military.
Since its inception, FCB has taken a charge to income to establish and
maintain a general reserve for potential loan losses. During fiscal 1997,
this charge was $260,200, none of which was utilized, as no loans were
charged off during the period. For the nine months ended June 30, 1998,
$501,000 was charged to income to increase the allowance for possible loan
losses, while $18,000 of loans were charged-off. The following table
reflects activity in the allowance for possible loan losses since April 1997:
<TABLE>
<CAPTION>
Year Ended Nine Months Ended
September 30, 1997 June 30, 1998
------------------ -----------------
(In thousands)
<S> <C> <C>
Beginning balance . . . . . . . . . . $ 0 $ 260
Provision for loan losses . . . . . . 260 501
Loans charged off . . . . . . . . . . 0 (18)
Recoveries . . . . . . . . . . . . . 0 1
------------------ -----------------
Ending balance . . . . . . . . . . . $ 260 $ 744
------------------ -----------------
------------------ -----------------
</TABLE>
CERTAIN INFORMATION CONCERNING FIRST COMMAND
GENERAL
First Command, a Texas corporation, was incorporated on April 1, 1998, to
construct, own and operate a parking garage (the "Parking Garage") adjacent
to the current executive offices of IRA. The principal executive offices of
First Command are located at 4100 South Hulen Street, Fort Worth, Texas
76109, and its telephone number is (817) 731-8621.
BUSINESS
IRA owns the building in Fort Worth, Texas, in which its home office
operation is conducted, and leases a small portion (approximately 4%) to
third parties. During 1997, the management of IRA determined that it was
necessary to construct the Parking Garage on certain land that is adjacent to
IRA's building (the "Adjacent Land") in order to efficiently use the property
and to provide sufficient parking space for IRA and its tenants. The IRA
Board desired to limit the liability of IRA and its subsidiaries in
connection with the construction and operation of the parking facility.
Consequently, First Command was formed on April 1, 1998, as a Texas
corporation, to construct, own and operate the Parking Garage on the Adjacent
Land. Four of the five shareholders of First Command are members of the
executive committee of the IRA Board: Lamar C. Smith, who is the Chairman and
Chief Executive Officer of IRA, James N. Lanier, who is the President and
Chief Operating Officer of IRA, Howard M. Crump, who is the Senior Vice
President and Director of Marketing of IRA, and Carroll H. Payne, II, who is
a director of IRA. Freda J. Payne, who is the fifth shareholder of First
Command, is a Class A/B Shareholder. Freda J. Payne became a shareholder of
First Command on June 26, 1998. Because First Command is owned by such
shareholders and not by the Company, First Command is not a subsidiary of the
Company.
Each First Command Shareholder will be entitled to receive, pursuant to
the Merger, one share of Surviving Corporation Nonvoting Stock for each 25
shares of First Command Common Stock held by such shareholder.
Pursuant to a Line of Credit Agreement dated June 1, 1998 (the "Line of
Credit"), IRA has agreed to loan up to $7,000,000 to First Command for the
construction of the Parking Garage. The interest rate on funds advanced under
the Line of Credit is 7% per annum. Advances may be made under the Line of
Credit from time to time until November 30, 1999, upon the request of First
Command, provided that the total amount of all advances under the Line of Credit
will not exceed $7,000,000 plus up to $1,500,000 to pay interest accruing on
amounts advanced. Prior to December 1, 1999, interest on the unpaid principal
balance outstanding under the Line of Credit is due and payable monthly as it
accrues, commencing on July 1, 1998. However, if First Command is entitled to
advances under the Line of Credit, IRA will, at First Command's request, make an
advance under the Line of Credit that is sufficient
36
<PAGE>
to pay the accrued interest that is then due and payable. After November 30,
1999, the unpaid principal of and accrued and unpaid interest on amounts
outstanding under the Line of Credit shall be converted into a term loan and
shall be due and payable in 60 equal quarterly installments, with the final
payment on December 1, 2014. The Line of Credit is secured by the Adjacent
Land, the Parking Garage and rents, deposits and other revenues with respect to
the Parking Garage. First Command intends to repay amounts due under the Line
of Credit through revenues generated from the Parking Garage. In the event of
the failure of First Command to pay any amount when due, IRA may (i) declare the
outstanding principal balance, along with any accrued but unpaid interest, due;
(ii) refuse to make further advancements under the Line of Credit; and (iii)
pursue any other legal remedies it may have.
First Command currently has two employees who manage the day-to-day
operations of First Command, including, but not limited to, negotiating
contracts with architecture firms and construction firms, working with municipal
authorities with regard to building code issues and ordinances, overseeing the
progress of the construction of the garage, responding to issues and requests
from the construction companies, and administering other duties such as the
authorization of payment of construction invoices.
In addition, pursuant to a Management Agreement (the "Management
Agreement"), dated June 1, 1998, between IRA and First Command, First Command
has retained IRA, as an independent contractor, to perform various services on
behalf of First Command, including (i) the preparation and processing of payroll
and payroll records for First Command's business, (ii) the processing of
accounts payable for First Command's business and (iii) the administration of
benefits for employees of First Command. Pursuant to the Management Agreement,
IRA will provide certain facilities, equipment and supplies necessary to conduct
these services. First Command will pay IRA a monthly fee of $2,030 for services
rendered under the Management Agreement. The term of the Management Agreement
is one year, and it is automatically renewed thereafter unless otherwise
terminated by (i) mutual agreement or (ii) notice by First Command or IRA at
least 30 days prior to the anniversary of the Management Agreement. First
Command and IRA have agreed to indemnify one another for all claims arising from
each of their negligence or willful misconduct.
First Command also entered into an administrative agreement (the
"Administrative Agreement") with IRA on June 1, 1998 to manage IRA's building.
Under the agreement, IRA is required to pay a monthly fee to First Command in
the amount of $2,080 for the services rendered by First Command. The term of
the Administrative Agreement is one year, and it is automatically renewed
thereafter unless otherwise terminated by (i) mutual agreement or (ii) notice by
First Command or IRA at least 30 days prior to the anniversary of the Management
Agreement. First Command and IRA have agreed to indemnify one another for all
claims arising from each of their negligence or willful misconduct.
First Command is not currently a party to any legal proceedings.
PROPERTIES
On June 1, 1998, pursuant to a Ground Lease (the "Ground Lease") between
IRA and First Command, IRA leased the Adjacent Land to First Command for a term
of 99 years and for a nominal annual rental payment. The approximate value of
the transaction was $99.00. Pursuant to the Ground Lease, First Command is
permitted to use the Adjacent Land only for the Parking Garage. First Command
is required to maintain general public liability insurance covering the Adjacent
Land and business operations conducted on the Adjacent Land, property damage
insurance, casualty insurance, builder's risk insurance and such other insurance
as may reasonably be required by IRA. IRA and its agents and employees are not
liable for damages resulting from any accident occurring on the Adjacent Land,
and First Command has agreed to indemnify IRA for any claims against IRA for any
such accidents. First Command is required to conform with all applicable
environmental laws with regard to operations and maintenance of the Adjacent
Land and has agreed to indemnify IRA with respect to environmental claims
imposed on IRA with respect to the Adjacent Land.
First Command entered into an agreement on May 4, 1998 with an independent
third party ("Contractor") to act as a general contractor with respect to the
construction of the Parking Garage. The Parking Garage is expected
37
<PAGE>
to be an 801-car parking garage with a surface parking lot. Construction on
this project commenced on or about June 15, 1998. It is anticipated that the
Parking Garage will be completed in the summer of 1999.
On June 1, 1998, pursuant to a Lease Agreement (the "Lease Agreement")
between First Command and IRA, First Command leased to IRA the Adjacent Land,
along with all buildings located on the Adjacent Land, commencing after
substantial completion of the Parking Garage and continuing for fifteen years
thereafter. First Command is obligated under the Lease Agreement to erect the
Parking Garage on the leased premises. IRA is required under the Lease
Agreement to pay rent in the amount of $51,250 per month plus operating expenses
associated with the Parking Garage. In addition, IRA is obligated under the
Lease Agreement to maintain utilities and liability insurance of at least
$1,000,000 for injury and death and at least $100,000 for property damage and
pay all applicable taxes. First Command is required to maintain the premises
and maintain fire and extended coverage insurance in an amount equal to at least
80% of the replacement cost of the Parking Garage. IRA has agreed to indemnify
First Command for any claims resulting from injuries or death of any person or
damages on the leased premises, the negligence of IRA or the use of the leased
premises by IRA. If First Command receives an offer to purchase the leased
premises from a third party during the term of the Lease Agreement, and First
Command wishes to accept the offer, IRA has the right to purchase the leased
premises under the same terms as presented in the third party's offer to
purchase.
Immediately prior to the Merger, First Command will transfer all of its
assets, subject to liabilities, to a newly-formed limited liability company or
Qualified Subchapter S Subsidiary in return for all of the capital stock of such
subsidiary. This transfer will keep the planned operations of First Command
separate and distinct from IRA subsequent to the Merger.
DIRECTORS AND EXECUTIVE OFFICERS OF FIRST COMMAND
The following is a list of all directors and executive officers of First
Command as of September 30, 1998, describing their respective names, ages as
positions held with First Command, along with the period of time they have
served in such position. No arrangements or understandings exist between any of
these individuals and any other persons pursuant to which they have been, or
will be, selected as a director or executive officer of First Command. The term
of office of all executive officers and directors is one year. The term of
office of a Director, under the classified board system of election provided in
First Command's Bylaws, is three years.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Lamar C. Smith 50 Director, Chairman of the
Board and Chief Executive
Officer
James N. Lanier 58 Director, President and
Chief Operating Officer
Howard M. Crump 51 Director
Carroll H. Payne II 43 Director
Martin R. Durbin 37 Treasurer
Robert F. Watson 62 Secretary
</TABLE>
Each of the directors and executive officers of First Command is currently
a director or executive officer of IRA. Members of the Board of Directors of
First Command receive a fee of $100 for each meeting. Other than this
attendance fee, none of the executive officers or directors of First Command
receive compensation from First
38
<PAGE>
Command for services provided to First Command. For more information concerning
the directors and executive officers, including certain information concerning
executive compensation, see the IRA 10-K, which has been delivered to the Class
A Shareholders and the Class B Shareholders attached as Annex D to this Proxy
Statement.
CERTAIN INFORMATION CONCERNING THE MANAGEMENT GROUP
The Management Group consists of Lamar C. Smith, James N. Lanier, Howard
M. Crump, Hal N. Craig, Donaldson D. Frizzell, Jerry D. Gray, David P.
Thoreson, Carroll H. Payne II, Naomi K. Payne, and Freda J. Payne. Each
member of the Management Group is a Class A Shareholder.
The following contains certain information with respect to each member of
the Management Group. Each member of the Management Group is a citizen of the
United States and, unless otherwise noted, has a business address of 4100 South
Hulen, Fort Worth, Texas 76113.
Mr. Smith has served as the Company's Chairman of the Board and Chief
Executive Officer since 1992 and has served as a Director of the Company since
1983. Mr. Smith also has served as Chairman of the Board and Chief Executive
Officer and a Director of First Command since its incorporation in 1998.
Mr. Lanier has served as President and Chief Operating Officer of the
Company since 1992 and has served as a Director of the Company since 1988. Mr.
Lanier also has served as President and Chief Operating Officer and a Director
of First Command since its incorporation in 1998.
Mr. Crump has served as Senior Vice President and Director of Marketing of
the Company since 1992 and as a Director of the Company since 1990. Mr. Crump
also has served as a Director of First Command since its incorporation in 1998.
Mr. Craig has served as Vice President and Director of Insurance of the
Company since 1997 and as a Director of the Company since 1993. From 1994 to
1997, Mr. Craig served as Vice President and Chief Information Officer of the
Company, and from 1992 to 1993 he served as Vice President and Director of
Management Information Systems of the Company.
Mr. Frizzell has served as Vice President and Director of Investments of
the Company since 1992 and as a Director of the Company since 1993.
Mr. Gray has been Regional Agent of the Company's South Atlantic Region
since 1996 and has served as a Director of the Company since 1990. Prior to
such time, he served as a Regional Agent in the midwestern United States for the
Company. His business address is 5705 Cameron Hall Place, Atlanta, Georgia
30328.
Mr. Thoreson has been a Regional Agent with respect to the Company's
activities in California and in the Pacific area since 1994 and has served as a
Director of the Company since 1994. Prior to such time, he served as a regional
agent with respect to the Company's activities in Europe. His business address
is 2016 Empire Mine Circle, Gold River, California 95670.
Mr. Payne has been a Director of the Company since 1983 and as a Director
of First Command since its incorporation in 1998. Mr. Payne has been an
architect since 1988. His business address is 1814 8th Avenue, Suite A-3, Fort
Worth, Texas 76110-1354.
Ms. Naomi Payne has been a Director of the Company since 1983. Ms.
Payne works with, and coordinates assistance for, deaf and otherwise
handicapped students through various agencies and institutions dedicated to
such students. Her business address is 11 Marion Terrace, Brookline,
Massachusetts 02146-4937.
Ms. Freda Payne became a member of the IRA Board in 1983 and served in this
capacity until December 31, 1996. Ms. Payne, who is the widow of Carroll H.
Payne, the founder of IRA, has been principally engaged in overseeing family
investments for the past five years.
THE SPECIAL MEETING
GENERAL
This Proxy Statement is being furnished to Class A Shareholders and Class B
Shareholders in connection with the solicitation of proxies by the IRA Board for
use at the Special Meeting and any adjournment or postponement thereof.
At the Special Meeting, the Class A Shareholders and Class B Shareholders
will be asked to consider and vote upon a proposal (the "Merger Proposal") to
approve and adopt the Merger Agreement entered into between First Command and
the Company, and the transactions contemplated thereby, including the Merger. If
the Merger is approved by the IRA Shareholders, the Company will merge with and
into First Command, and each share of Class A Stock of the Company issued and
outstanding immediately prior to the Effective Time (other than shares of Class
A Stock held in treasury by the Company), subject to and upon the terms and
conditions of the Merger Agreement, will be converted into five shares of
Surviving Corporation Voting Stock. Further, (i) each share of Class B Stock
held by a Class B Shareholder that is not a Class A/B Shareholder that is issued
and outstanding immediately prior to the Effective Time, subject to and upon the
terms and conditions of the Merger Agreement, will be converted into $28.24 in
cash, without interest, and (ii) each share of Class B Stock held by a Class A/B
Shareholder issued and outstanding immediately prior to the Effective Time,
subject to and upon the terms and conditions of the Merger Agreement, will be
converted into one share of Surviving Corporation Nonvoting Stock; provided,
however that each Class A/B Shareholder may elect to receive, in lieu of
receiving the Class B Nonvoting Stock Consideration, the Class B Cash
Consideration for all shares of Class B Stock held immediately prior to the
Effective Time. Each holder of First Command Common Stock, issued and
outstanding immediately prior to the Effective Time, subject to and upon the
terms and conditions of the Merger Agreement, will receive one share of
Surviving Corporation Nonvoting Stock for each 25 shares of First Command Common
Stock held by such shareholder. If the Merger is approved, all of the
outstanding shares of Surviving Corporation Common Stock will be held by (i) the
Class A Shareholders, (ii) the Class
39
<PAGE>
A/B Shareholders who do not elect to receive Class B Cash Consideration and
(iii) the First Command Shareholders, to the extent that such shareholders do
not seek appraisal rights (see "THE PROPOSED MERGER--Conversion of Shares" and
"RISK FACTORS--Risk Factors Pertaining to the Merger--Loss of Voting Rights").
The Merger Agreement (including the principal exhibits thereto) is attached to
this Proxy Statement as Annex A. See "THE PROPOSED MERGER." The IRA Board,
based upon the unanimous recommendation of the Special Committee, determined
that the terms of the proposed Merger are fair to and in the best interests of
the IRA Shareholders, including the Class B Shareholders who do not own Class A
Stock, and unanimously approved the Merger Agreement and the Merger and
recommended that the Merger Agreement be submitted for approval at a special
meeting of the IRA Shareholders. In arriving at its decision, the IRA Board
gave careful consideration to a number of factors, including the opinion of the
Financial Advisor, the financial advisor to the Special Committee. ACCORDINGLY,
THE IRA BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR" APPROVAL OF THE MERGER
AGREEMENT.
RECORD DATE
The IRA Board has fixed the close of business on _______________, 1998, as
the Record Date for the determination of holders of Class A Stock and Class B
Stock entitled to vote at and receive notice of the Special Meeting. Only Class
A Shareholders and Class B Shareholders as of the Record Date will be entitled
to vote at the Special Meeting. At the close of business on the Record Date, the
Company had outstanding and entitled to vote 25 shares of Class A Stock held by
14 holders of record and _________________ shares of Class B Stock held by
_______________ holders of record.
QUORUM
The presence, in person or by proxy, of the holders of a majority of Class
A Stock and the holders of a majority of Class B Stock entitled to vote at the
Special Meeting is necessary to constitute a quorum for the transaction of
business at such meeting.
Abstentions are counted for purposes of determining whether a quorum exists
at the Special Meeting. However, proxies that reflect abstentions and proxies
that are not returned will have the same effect as a vote against approval of
the Merger Agreement because the affirmative vote of (i) the holders of at least
66-2/3% of the outstanding shares of Class A Stock and Class B Stock, voting
together as a single class, (ii) the holders of at least 66-2/3% of the
outstanding shares of Class A Stock and Class B Stock, each voting separately as
a class, and (iii) the holders of at least a majority of the outstanding
shares of Class B Stock not held by Class A/B Shareholders, is required to
approve the Merger Agreement. See "--Votes Required; Voting Rights."
VOTES REQUIRED; VOTING RIGHTS
Each share of Class A Stock and Class B Stock is entitled to one vote
with respect to the approval of the Merger at the Special Meeting. The
affirmative vote of (i) the holders of at least 66-2/3% of the outstanding
shares of Class A Stock and Class B Stock, voting together as a single class,
(ii) the holders of at least 66-2/3% of the outstanding shares of Class A
Stock and Class B Stock, each voting separately as a class, and (iii) the
holders of at least a majority of the outstanding shares of Class B Stock not
held by Class A/B Shareholders, is required to approve the Merger Agreement.
As of September 30, 1998, the Management Group, each member of which is an
officer or director of the Company or First Command (other than Freda J.
Payne) and is also a Class A Shareholder, beneficially owned an aggregate of
19 shares of Class A Stock and 285,481 shares of Class B Stock (representing
approximately 76% and 30.2% of the outstanding Class A Stock and Class B
Stock, respectively). Each of the Management Group intends to vote all shares
of Class A Stock and Class B Stock beneficially owned by him or her for
approval of the Merger Agreement.
With regard to any other matters presented at the Special Meeting, each
share of Class A Stock will be entitled to one vote, and the Class B
Shareholders will not be entitled to vote on such matters.
If fewer shares of either Class A Stock or Class B Stock are voted in favor
of the Merger Proposal than the number required for approval, it is expected
that the Special Meeting will be postponed or adjourned for the purpose
40
<PAGE>
of allowing additional time for soliciting and obtaining additional proxies or
votes. If a motion to adjourn the meeting is presented for the purpose of
allowing additional time to solicit proxies, shareholders providing proxies that
are not voted against the Merger Proposal will be deemed to have conferred
discretionary authority to vote for such adjournment, and shares voted against
the Merger Proposal shall be voted against a motion to adjourn such meeting. See
"--Solicitation of Proxies."
Because 25 shares of Class A Stock and _________________ shares of Class
B Stock were outstanding as of the Record Date, the affirmative vote of at
least 17 shares of Class A Stock and ________________ shares of Class B Stock
is a condition to the consummation of the Merger. As of the Record Date,
there were _______ shares of Class B Stock held by persons other than the
Management Group. ___________ shares of Class B Stock will be needed to
approve the Merger in addition to the number of shares of Class B Stock held
by Class A/B Shareholders.
DISSENTERS' RIGHTS
Holders of Class A Stock or Class B Stock who comply with the applicable
requirements of the TBCA may dissent from the vote on the Merger and exercise
appraisal rights with respect to their Class A Stock or Class B Stock. See "THE
PROPOSED MERGER--Rights of Dissenting Shareholders" and the excerpted sections
of the TBCA attached hereto as Annex C.
SOLICITATION OF PROXIES
If a shareholder attends the Special Meeting, he or she may vote by ballot.
However, many of IRA's shareholders may be unable to attend the Special Meeting.
Therefore, the IRA Board is soliciting proxies so that each holder of Class A
Stock or Class B Stock on the Record Date has the opportunity to vote on the
proposals to be considered at the Special Meeting.
When a proxy is returned properly signed and dated, the shares represented
thereby will be voted in accordance with the instructions on the proxy. If a
shareholder does not return a signed proxy or vote in person at the Special
Meeting, his or her shares will not be voted. Shareholders are urged to mark the
boxes on the proxy to indicate how their shares are to be voted. If a holder of
Class A Stock or Class B Stock returns a signed proxy, but does not indicate how
his or her shares are to be voted, the shares represented by the proxy will be
voted FOR approval and adoption of the Merger Proposal. A properly executed
proxy marked "ABSTAIN," although counted for purposes of determining whether
there is a quorum and for purposes of determining the aggregate voting power and
number of shares represented and entitled to vote at the Special Meeting, will
not be voted and will have the effect of a vote against the Merger Proposal.
The IRA Board does not know of any matters other than those described in
the notice of the Special Meeting that are to come before the Special Meeting.
If any other matters are properly brought before the Special Meeting, including,
among other things, a motion to adjourn or postpone the Special Meeting to
another time and/or place for the purpose of, among other things, permitting
dissemination of information regarding material developments relating to the
Merger or soliciting additional proxies in favor of the Merger Proposal, one or
more of the persons named on the proxy card will vote the shares represented by
such proxy upon such matters as determined in their best judgment and consistent
with the voting rights of such shares as provided by the IRA Bylaws and the
TBCA; provided, however, that no proxy that is voted against the Merger Proposal
will be voted in favor of any adjournment or postponement for the purpose of
soliciting additional proxies. At any subsequent reconvening of the Special
Meeting, all proxies will be voted in the same manner as such proxies would have
been voted at the original convening of the Special Meeting, except for proxies
that have been effectively revoked or withdrawn prior to the time such Proxies
are voted at such reconvened meeting. See "--Votes Required; Voting Rights."
In addition to solicitation by use of the mails, proxies may be solicited
by directors, officers and employees of IRA in person or by telephone, telegram
or other means of communications. Such directors, officers and employees will
not be additionally compensated but may be reimbursed for reasonable
out-of-pocket expenses in connection with
41
<PAGE>
such solicitation. No proxy solicitation firm has been retained to assist with
soliciting and tabulating proxies for the Special Meeting. Expenses in
connection with the solicitation of proxies will be paid by the Company.
PLEASE DO NOT SEND ANY SHARE CERTIFICATES WITH YOUR PROXY CARD OR THE
FORM OF ELECTION.
REVOCABILITY OF PROXIES
Any IRA Shareholder who executes and returns a proxy may revoke such proxy
at any time before it is voted by (i) notifying in writing Sandra T. Allen,
Corporate Secretary of IRA, at 4100 South Hulen Street, Fort Worth, Texas 76109,
(ii) granting a subsequent proxy or (iii) appearing in person and voting at the
Special Meeting. Attendance at the Special Meeting will not in and of itself
constitute revocation of a proxy.
THE PROPOSED MERGER
GENERAL
The following is a brief summary of certain aspects of the Merger. This
summary does not purport to be complete and is qualified in its entirety by
reference to the Merger Agreement, a copy of which is included in this Proxy
Statement as Annex A and is incorporated herein by reference.
CLOSING; EFFECTIVE TIME
The Closing will take place on the first date that all conditions to the
Merger shall be satisfied or waived in accordance with the Merger Agreement or
such date as the Company and First Command may agree in writing. Pursuant to
the Articles of Merger to be filed with the Secretary of State of the State of
Texas, the Merger will become effective at 12:01 a.m. on __________, 1998 (the
"Effective Time").
CONVERSION OF SHARES
Upon the terms and subject to the conditions set forth in the Merger
Agreement, each share of Class A Stock of the Company issued and outstanding
immediately prior to the Effective Time (other than shares of Class A Stock held
in treasury by the Company), subject to and upon the terms and conditions of the
Merger Agreement, will be converted into five shares of Surviving Corporation
Voting Stock. Further, (i) each share of Class B Stock held by a Class B
Shareholder that is not a Class A/B Shareholder that is issued and outstanding
immediately prior to the Effective Time, subject to and upon the terms and
conditions of the Merger Agreement, will be converted into $28.24 in cash,
without interest, and (ii) each share of Class B Stock held by a Class A/B
Shareholder issued and outstanding immediately prior to the Effective Time,
subject to and upon the terms and conditions of the Merger Agreement, will be
converted into one share of Surviving Corporation Nonvoting Stock; provided,
however that each Class A/B Shareholder may elect to receive, in lieu of
receiving the Class B Nonvoting Stock Consideration, the Class B Cash
Consideration for all shares of Class B Stock held thereby immediately prior to
the Effective Time. Each holder of First Command Common Stock, issued and
outstanding immediately prior to the Effective Time, subject to and upon the
terms and conditions of the Merger Agreement, will receive one share of
Surviving Corporation Nonvoting Stock for each 25 shares of First Command Common
Stock held by such shareholder.
On the first business day following the Effective Time, the Surviving
Corporation will deposit in trust with the Paying Agent the following amounts
and forms of Merger Consideration required for conversion at the Effective Time
of the Class A Stock and Class B Stock (such deposit being the "Payment Fund"):
(i) certificates representing the requisite number of shares of Surviving
Corporation Voting Common Stock, (ii) cash representing the Class B Cash
Consideration and (iii) certificates representing the requisite number of shares
of Surviving Corporation Nonvoting Common Stock.
42
<PAGE>
Promptly after the Effective Time, the Paying Agent will mail to each
record holder of Class A Stock or Class B Stock, a transmittal letter and
instructions for the surrender of the certificates for payment. Upon surrender
to the Paying Agent of certificates, together with a duly executed letter of
transmittal, the holder will be entitled to receive the appropriate Merger
Consideration. No interest will be paid or accrue on the Merger Consideration
payable in cash upon the surrender of the certificates. The Paying Agent shall
pay the Merger Consideration attributable to a certificate that has been lost or
destroyed upon receipt of satisfactory evidence of ownership of the shares of
Class A Stock or Class B Stock and of appropriate indemnification. After the
Effective Time, until surrendered in accordance with these provisions, each
certificate (other than certificates representing Dissenting Shares) shall
represent only the right to receive the Merger Consideration as set forth in the
Merger Agreement.
After the Effective Time, there shall be no transfers on the stock transfer
books of the Surviving Corporation of the shares of IRA Common Stock or First
Command Common Stock which were outstanding immediately prior to the Effective
Time. Certificates presented to the Surviving Corporation after the Effective
Time shall be cancelled.
Any portion of the Payment Fund that remains unclaimed by the shareholders
of IRA or First Command for six months after the Effective Time shall be repaid
to the Surviving Corporation, upon demand, and any shareholders of IRA or First
Command who have not complied with the herein provisions shall look as a general
creditor only to the Surviving Corporation for payment of their claims for the
Merger Consideration. Notwithstanding the foregoing, the Surviving Corporation
shall not be liable to a holder of shares of IRA Common Stock or First Command
Common Stock for any amounts delivered to a public official pursuant to any
applicable abandoned property, escheat or similar laws.
At the Effective Time, all shares of either Class A Stock or Class B Stock
that are held in treasury by the Company will cease to be outstanding, shall be
cancelled and retired without payment of any consideration therefor and will
cease to exist.
SHAREHOLDER ELECTIONS
All shareholder elections by Class A/B Shareholders shall be made on the
Form of Election which will be provided by the Paying Agent and mailed to IRA
Shareholders as of the Record Date along with this Proxy Statement. To be
effective, a Form of Election must be returned, properly completed, to the
Paying Agent no later than the Election Deadline. A Class A/B Shareholder
that fails to submit an effective Form of Election prior to the Election
Deadline shall be deemed to have made a Non-Election, which will result in
the Class A/B Shareholder receiving the Class B Nonvoting Stock
Consideration. An election by a Class A/B Shareholder to receive either the
Class B Nonvoting Stock Consideration or the Class B Cash Consideration will
not constitute a vote in favor of the approval of the Merger Agreement. A
Class A/B Shareholder may not elect to receive both the Class B Nonvoting
Stock Consideration and the Class B Cash Consideration.
In the event a Form of Election is delivered to the Paying Agent on behalf
of a record holder of Class B Stock (as defined below) who is a Class A/B
Shareholder (as defined below) prior to the Election Deadline and not revoked
prior to such deadline, or if a Form of Election is delivered to the Paying
Agent after the Election Deadline, the Company or the Surviving Corporation, as
the case may be, will deem such delivery a revocation of any objections to the
Merger previously filed with the Company for purposes of exercising dissenter's
rights and a waiver of any future rights to such exercise. See "--Rights of
Dissenting Shareholders."
Elections may be revoked or amended by a Class A/B Shareholder upon written
notice to the Paying Agent prior to the Election Deadline. If a Class A/B
Shareholder revokes the Form of Election and does not properly resubmit such
form thereafter, the Class A/B Shareholder shall be deemed to have made a
Non-Election.
The Company will use its best efforts to make a Form of Election available
to all persons who become Class A/B Shareholders between the date of mailing of
this Proxy Statement and the Election Deadline.
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THE MERGER AGREEMENT
The following is a summary of certain material provisions of the Merger
Agreement not summarized elsewhere in this Proxy Statement. A copy of the Merger
Agreement is attached as Annex A to this Proxy Statement and is incorporated
herein by reference. The following summary does not purport to be complete and
is qualified in its entirety by reference to the Merger Agreement.
THE MERGER. The Merger Agreement provides that, on the first date that all
conditions to the Merger shall be satisfied or waived in accordance with the
Merger Agreement or such date as the Company and First Command may agree in
writing and at the time the Articles of Merger are filed with the Secretary of
State of the State of Texas in accordance with the TBCA, IRA will be merged with
and into First Command in accordance with the TBCA, the separate corporate
existence of IRA will cease, and First Command will continue as the Surviving
Corporation in the Merger.
DIRECTORS AND OFFICERS. Pursuant to the Merger Agreement, the directors and
officers of IRA immediately prior to the Effective Time shall, from and after
the Effective Time, be the directors and officers of the Surviving Corporation,
until their successors have been duly elected or appointed and qualified or
until their earlier death, resignation or removal in accordance with the
Articles of Incorporation and Bylaws of the Surviving Corporation. See "CERTAIN
INFORMATION CONCERNING IRA--Directors and Executive Officers of IRA." Because
the Bylaws of the Surviving Corporation will contain a provision for a
classified board similar to that of the Bylaws of IRA, the Merger Agreement
provides that the directors will retain their respective current classes after
the Merger.
CHARTER AND BYLAWS. Pursuant to the Merger Agreement, the Articles of
Incorporation and Bylaws of First Command as in effect immediately prior to
the Effective Time will be the Articles of Incorporation and Bylaws,
respectively, of the Surviving Corporation following the Merger until duly
amended as provided therein and by applicable law. The Merger Agreement
provides that at the Effective Time the Articles of Incorporation of the
Surviving Corporation shall be amended to provide for the change of the name
of the Surviving Corporation to "Independent Research Agency for Life
Insurance, Inc." A copy of the Articles of Incorporation, as proposed to be
amended, and the Bylaws of the Surviving Corporation, as proposed to be
amended, are attached hereto as Annex E.
FILINGS; OTHER ACTIONS; NOTIFICATION. Pursuant to the Merger Agreement,
the parties have agreed, among other things, that (i) each party will provide
certain information, or access to such information, to the other party; (ii)
each party will hold certain information received pursuant to the
contemplated Merger confidential; (iii) IRA will call and hold the Special
Meeting as soon as reasonably practicable after the date of the Merger
Agreement, and subject to their fiduciary duties as advised by counsel, the
directors of IRA will recommend approval and adoption of the Merger
Agreement; (iv) IRA and First Command will prepare and file, and each will
cooperate with the other in the preparation and filing of the Schedule 13E-3
with respect to the transactions described in this Proxy Statement; IRA will
prepare, file and distribute, and First Command will cooperate with IRA in
the preparation and filing of, this Proxy Statement; and each party will
notify the other party of certain communications with the Commission
concerning these documents; (v) each of IRA and First Command will use its
reasonable best efforts to obtain any waivers, consents or approvals under
the terms of any agreement or commitment to which IRA or First Command is a
party that are necessary for the consummation of the Merger; (vi) IRA and
First Command will consult with each other concerning certain publicity
issues; (vii) IRA will attempt to obtain all required approvals, consents,
authorizations and waivers, and First Command will cooperate with IRA in
obtaining such consents; and (viii) certain written information supplied or
to be supplied by IRA or First Command will not contain any untrue statement
of a material fact or omit any material fact necessary in order to make the
statements made, in light of the circumstances under which they are made, not
misleading.
EXPENSES. The Merger Agreement provides that IRA will pay all expenses
incurred by the parties in connection with the preparation, negotiation,
execution, delivery and consummation of the Merger Agreement and the
transactions contemplated by the Merger Agreement.
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INDEMNIFICATION. The Merger Agreement provides that IRA will indemnify and,
after the Effective Time, the Surviving Corporation will indemnify each present
and former employee, agent, officer or director of IRA or, after the Effective
Time, First Command (the "Indemnified Parties"), to the fullest extent permitted
under applicable law or under the Articles of Incorporation and Bylaws of IRA
and the Surviving Corporation against any losses, claims, damages, liabilities,
costs, expenses, judgments and amounts paid in settlement in connection with any
threatened, pending or contemplated claim, action, suit, proceeding or
investigation arising out of or pertaining to any action or omission occurring
prior to or at the Effective Time (including, without limitation, any claim,
action, suit, proceeding or investigation to which he is a party or is
threatened to be made a party by reason of such relationship with IRA and which
arises out of or relates to the transactions contemplated by the Merger
Agreement) (a "Claim"). The Merger Agreement further provides that the
Surviving Corporation agrees that the provisions of the Surviving Corporation's
Articles of Incorporation or Bylaws as in effect at the Effective Time of the
Merger with respect to exculpation of liability and indemnification of officers,
directors and employees shall not be modified, changed or amended in any manner
adverse to an Indemnified Party except as required by law. In addition, IRA
and, after the Effective Time, the Surviving Corporation, to the fullest extent
permitted under applicable law, will periodically advance reasonable expenses as
incurred with respect to any Claim or potential claim provided that the person
to whom expenses are advanced, if required by applicable law, provides an
undertaking to repay such advances if it is ultimately determined by a court of
competent jurisdiction that such person is not entitled to indemnification
pursuant to these provisions of the Merger Agreement.
In the event any Claim is brought against any Indemnified Party (whether
before or after the Effective Time) in connection with which such Indemnified
Party asserts that he is entitled to be indemnified and held harmless pursuant
to these provisions of the Merger Agreement, (i) the Indemnified Parties may
retain counsel which will be reasonably satisfactory to IRA (or the Surviving
Corporation after the Effective Time), (ii) IRA (or, after the Effective Time,
the Surviving Corporation) shall pay all reasonable fees and expenses of such
counsel for the Indemnified Parties promptly as statements therefor are
received, and (iii) IRA (or, after the Effective Time, the Surviving
Corporation) will use their reasonable best efforts to assist in the vigorous
defense of any such matter. Neither IRA nor the Surviving Corporation shall be
liable for any settlement effected without their written consent, which consent,
however, shall not be unreasonably withheld. Any Indemnified Party wishing to
claim indemnification under these provisions of the Merger Agreement, upon
learning of any such Claim, shall notify IRA or the Surviving Corporation
thereof but any failure to so notify IRA or the Surviving Corporation shall not
relieve IRA or the Surviving Corporation of their obligations under these
provisions of the Merger Agreement unless it has been actually prejudiced by
such lack of notice. The Indemnified Parties as a group may retain only one law
firm in each jurisdiction to represent them with respect to any such matter
unless there is, under applicable standards of professional conduct, a conflict
of interest on any significant issue between the positions of any two or more
Indemnified Parties. Any determination required to be made with respect to
whether an Indemnified Party's conduct complied with the standards set forth
under applicable law or the Bylaws of IRA or the Surviving Corporation shall be
made by independent counsel selected by such Indemnified Party and reasonably
satisfactory to IRA or the Surviving Corporation (which shall pay such counsel's
reasonable fees and expenses).
EMPLOYEE BENEFITS. The Merger Agreement provides that the Surviving
Corporation will honor and be bound by the terms and conditions of each
Compensation and Benefit Plan (as defined in the Merger Agreement) and each
employee or executive benefit plan, program or agreement of IRA or any of its
subsidiaries in effect prior to the date of the Merger Agreement. The Surviving
Corporation will also, or will cause its subsidiaries to, make available to each
person who is an employee of IRA and its subsidiaries immediately prior to the
Effective Time benefits that are either (a) the same as are made available to
the employees of IRA, on terms and conditions as are generally applicable to the
employees of IRA or (b) no less favorable than those provided under IRA's
benefit plans prior to the effectiveness of the Merger. Any employee benefit
plan or program in which any IRA employee participates after the Effective Time
will (x) waive any pre-existing condition limitation, (y) credit against any
deductible or co-payment requirement subject to a maximum out-of-pocket
limitation any costs incurred by such IRA employee during the comparable period
under the terms of the corresponding IRA plan, program or arrangement, and (z)
credit service
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with IRA or its subsidiaries prior to the Effective Time for purposes of meeting
any eligibility or vesting waiting periods.
TAKEOVER STATUTE. The Merger Agreement provides that if any takeover
statute is or may become applicable to the Merger, each of First Command and IRA
and their respective Board of Directors shall grant such approvals and take such
actions as are necessary so that such transactions may be consummated as
promptly as practicable and otherwise act to minimize the effects of such
statute or regulation.
CONDITIONS TO THE MERGER. The obligation of First Command to consummate
the Merger is subject to the satisfaction of a number of conditions, including,
among others (i) the performance and compliance of IRA in all material respects
with all agreements, obligations and conditions required by the Merger Agreement
to be performed or complied with by IRA on or prior to the Closing Date; (ii)
the holders of (A) two-thirds (2/3) of the outstanding shares of Class A Stock
and Class B Stock, voting as a single class, (B) two-thirds (2/3) of the
outstanding shares of Class A Stock and Class B Stock, each voting separately as
a class, and (C) a majority of the outstanding shares of Class B Stock not
held by Class A/B Shareholders, that are eligible to vote at the Special
Meeting shall have voted for approval and adoption of the Merger Agreement;
(iii) the holders of two-thirds (2/3) of the outstanding shares of First
Command Common Stock shall have voted for approval and adoption of the Merger
Agreement; (iv) all approvals, consents, authorizations and waivers from
governmental and other regulatory agencies and other third parties required
to consummate the transactions contemplated by the Merger Agreement, which
either individually or in the aggregate, if not obtained, would have a
materially adverse effect on the financial condition, results of operations
or business of IRA or would prevent consummation of the Merger and the other
transactions contemplated by the Merger Agreement, shall have been obtained;
(v) on the Closing Date, there shall be no effective injunction, writ,
temporary restraining order or any order of any nature issued by a court of
competent jurisdiction or other governmental authority directing that the
transactions provided for in the Merger Agreement or any of them not be
consummated as so provided or imposing any conditions on the consummation of
the transactions contemplated by the Merger Agreement that First Command
deems unacceptable in its sole discretion; (vi) no suit, action, or other
proceeding seeking to restrain, prevent or change the transactions
contemplated by the Merger Agreement or otherwise questioning the validity or
legality of such transactions shall have been instituted and be pending; and
(vii) the holders of no more than 20% of either of the outstanding Class A
Stock or the Class B Stock shall have delivered notice of their intent to
exercise their right to dissent under the TBCA.
The obligation of IRA to consummate the Merger is subject to the
satisfaction of a number of conditions, including, among others (i) the
performance and compliance of First Command with all agreements, obligations and
conditions required by the Merger Agreement to be performed or complied with by
First Command on or prior to the Closing Date; (ii) IRA shall not have received
written notice from the Financial Advisor that it has withdrawn, revoked or
modified its opinion as to the fairness of the Merger to the IRA Shareholders,
from a financial point of view; (iii) the holders of (A) two-thirds (2/3) of the
outstanding shares of Class A Stock and Class B Stock, voting as a single class,
(B) two-thirds (2/3) of the outstanding shares of Class A Stock and Class B
Stock, each voting separately as a class, and (C) a majority of the outstanding
shares of Class B Stock not held by Class A/B Shareholders, that are eligible
to vote at the Special Meeting shall have voted for approval and adoption of the
Merger Agreement; (iv) the holders of two-thirds (2/3) of the outstanding shares
of First Command Common Stock shall have voted for approval and adoption of the
Merger Agreement; (v) all approvals, consents, authorizations and waivers from
governmental and other regulatory agencies and other third parties required to
consummate the transactions contemplated by the Merger Agreement, which either
individually or in the aggregate, if not obtained, would have a materially
adverse effect on the financial condition, results of operations or business of
IRA or would prevent consummation of the Merger and the other transactions
contemplated by the Merger Agreement, shall have been obtained; (vi) on the
Closing Date, there shall be no effective injunction, writ, temporary
restraining order or any order of any nature issued by a court of competent
jurisdiction or other governmental authority directing that the transactions
provided for in the Merger Agreement or any of them not be consummated as so
provided or imposing any conditions on the consummation of the transactions
contemplated by the Merger Agreement that IRA deems unacceptable in its sole
discretion; (vii) no suit, action, or other proceeding seeking to restrain,
prevent or change the transactions contemplated by the Merger Agreement or
otherwise questioning the validity or legality of such transactions shall have
been instituted and be pending; and (viii) the holders of no more than 20% of
either of the
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outstanding Class A Stock or the Class B Stock shall have delivered notice of
their intent to exercise their right to dissent under the TBCA.
The conditions to each of the parties' obligations to consummate the Merger
are for the sole benefit of such party and may be waived by such party in whole
or in part to the extent permitted by applicable law. In the event a
modification or waiver by IRA or First Command is contemplated that requires
shareholder approval under applicable law, a supplement to this Proxy Statement
will be distributed to IRA Shareholders, and proxies will be resolicited. See
"SPECIAL MEETING OF IRA SHAREHOLDERS--Solicitation of Proxies." Neither First
Command nor IRA currently contemplates waiving or modifying any of the foregoing
conditions.
TERMINATION. The Merger Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time: (i) by mutual consent of the
Boards of Directors of First Command and IRA; (ii) by either IRA or First
Command if at the Special Meeting, or any adjournment thereof, the shareholders
of IRA fail to adopt and approve the Merger; (iii) by either IRA or First
Command if the shareholders of First Command fail to adopt and approve the
Merger; and (iv) by either IRA or First Command if a court of competent
jurisdiction or governmental, regulatory or administrative agency or commission
shall have issued an order, decree or ruling or taken any other action, in each
case permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by the Merger Agreement, and such order, decree,
ruling or other action shall have become final and nonappealable.
In the event of termination of the Merger Agreement by either IRA or First
Command as described above, all information received by any party with respect
to the business of the other party (other than information which is a matter of
public knowledge or which has been or is published in any publication for public
distribution or filed as public information with any governmental authority)
shall not at any time be used for the advantage of, or disclosed to third
parties by, such party for any reason, and neither party shall have any
liability or further obligations to the other party, except as stated in the
preceding clause.
IRA CHARTER BUSINESS COMBINATION PROVISION
Under Article Ten of the Articles of Incorporation of IRA, any business
combination with an interested shareholder (as defined below) shall require the
affirmative vote of the holders of at least 95% of the then outstanding shares
of the capital stock of the Company, voting together as a single class, unless
(a) the IRA Board, by an 80% vote, (i) expressly approves in advance the
acquisition of shares that caused the interested shareholder to become an
interested shareholder or (ii) expressly approves the business combination, or
(b) the interested shareholder pays to the holders of the capital stock of the
Company not less than the fair price (as defined below) paid by such person in
acquiring any of its holdings of the Company's capital stock. Under Article Ten
of the Company's Articles of Incorporation, the following terms are defined as
follows:
(a) a "business combination" shall mean (1) any merger or
consolidation of the Company with an interested shareholder or any other
corporation which is, or after such merger or consolidation would be, an
affiliate of an interested shareholder; (2) a sale or other disposition to
or with an interested shareholder or affiliate of an interested shareholder
of substantially all of the assets of the Company; (3) the issuance or
transfer by the Company of the securities of the Company to an interested
shareholder in a transaction having a fair market value of $2,000,000 or
more; (4) the adoption of a plan or proposal for liquidation or dissolution
of the Company proposed by or on behalf of an interested shareholder or an
affiliate of an interested shareholder; and (5) any reclassification of
securities or recapitalization of the Company or any other transaction
which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity of the
Company which is directly or indirectly owned by an interested shareholder
or an affiliate of an interested shareholder;
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(b) an "interested shareholder" shall mean any person who is a
beneficial owner, directly or indirectly, of more than 10 percent of the
shares of any class of the outstanding capital Stock of the Company, or is
an assignee of or has otherwise succeeded to any shares of any class of the
capital Stock of the Company which were at any time within the two year
period immediately preceding the date in question beneficially owned by an
interested shareholder; and
(c) a "fair price" shall mean the amount determined by the majority
of the Board of Directors to be the highest per share equivalent price that
can be determined to have been paid at any time by the interested
shareholder for any share or shares of any class or series of the capital
stock of the Company, plus interest from the date the interested
shareholder became an interested shareholder through the date of the
business combination at the rate of 7 percent per annum, less the aggregate
amount of any dividends paid during such time period.
The above description of the Article 10 of the Articles of Incorporation of IRA
is a summary only, and is qualified in its entirety by reference to the Articles
of Incorporation of IRA.
To the extent that the Merger may constitute a "business combination," as
defined in the Articles of Incorporation of IRA, the Company believes that the
provisions of Article 10 of the Articles of Incorporation of IRA will not apply
to the Merger because the IRA Board has approved the Merger by a unanimous vote.
STATE ANTI-TAKEOVER STATUTES
Articles 13.01 through 13.03 of the TBCA (the "Business Combination Law")
prevents, under certain circumstances, an "Affiliated Shareholder" (generally
defined as a person beneficially owning 20% or more of an issuing corporation's
voting shares (as defined in Article 13.02 of the TBCA)) from engaging in a
"Business Combination" (as defined in Article 13.02 of the TBCA) for three years
following the date such person became an Affiliated Shareholder unless (i) the
business combination or the purchase or acquisition of shares made by the
Affiliated Shareholder on the Affiliated Shareholder's share acquisition date is
approved by the Board of Directors before the Affiliated Shareholder's share
acquisition date or (ii) the business combination is approved, by the
affirmative vote of the holders of at least two-thirds of the outstanding voting
shares of the issuing public corporation not beneficially owned by the
Affiliated Shareholder or an affiliate or associate of the Affiliated
Shareholder. The "voting shares" are those shares of capital stock of the
corporation entitled to vote generally in the election of directors;
consequently, only Class A Stock is considered to be voting shares under the
TBCA. The Company believes that the Business Combination Law is inapplicable to
the Merger.
A number of other states have adopted laws and regulations applicable to
attempts to acquire securities of corporations which are incorporated, or have
substantial assets, shareholders, principal executive offices or principal
places of business, or whose business operations otherwise have substantial
economic effects, in such states. In 1982, in EDGAR V. MITE CORP., the Supreme
Court of the United States invalidated on constitutional grounds the Illinois
Business Takeover Statute, which, as a matter of state securities law, made
takeovers of corporations meeting certain requirements more difficult. However,
in 1987, in CTS CORP. V. DYNAMICS CORP. OF AMERICA, the Supreme Court held that
the State of Indiana may, as a matter of corporate law, and, in particular, with
respect to those aspects of corporate law concerning corporate governance,
constitutionally disqualify a potential acquiror from voting on the affairs of a
target corporation without the prior approval of the remaining shareholders. The
state law before the Supreme Court was by its terms applicable only to
corporations that had a substantial number of shareholders in the state and were
incorporated there.
IRA conducts business, directly or through subsidiaries, in a number of
states throughout the United States, some of which have enacted takeover laws.
IRA does not know whether any of these laws will, by their terms, apply to the
Merger and has not complied with any such laws. Should any person seek to apply
any state takeover law, IRA will take such action as then appears desirable,
which may include challenging the validity or applicability of any such
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statute in appropriate court proceedings. In the event it is asserted that one
or more state takeover laws is applicable to the Merger, and an appropriate
court does not determine that it is inapplicable or invalid as applied to the
Merger and/or IRA might be required to file certain information with, or
receive approvals from, the relevant state authorities.
RIGHTS OF DISSENTING SHAREHOLDERS
If the Merger Agreement is approved by the required vote of the Company's
shareholders and is not abandoned or terminated, IRA Shareholders who did not
vote in favor of the Merger may, by complying with Articles 5.12 and 5.13 of the
TBCA, be entitled to dissenters' rights as described therein. If a shareholder
of the Company has a beneficial interest in shares of Class A Stock or Class B
Stock that are held of record in the name of another person, such as a broker or
nominee, and such shareholder desires to perfect whatever dissenters' rights
such beneficial shareholder may have, such beneficial shareholder must act
promptly to cause the holder of record timely and properly to follow the steps
summarized below.
A VOTE IN FAVOR OF THE MERGER BY AN IRA SHAREHOLDER WILL RESULT IN A WAIVER
OF THE SHAREHOLDER'S DISSENTERS' RIGHTS.
IN THE EVENT A FORM OF ELECTION IS DELIVERED TO THE PAYING AGENT ON
BEHALF OF A RECORD HOLDER OF CLASS B STOCK WHO IS A CLASS A/B SHAREHOLDER
PRIOR TO THE ELECTION DEADLINE AND NOT REVOKED PRIOR TO SUCH DEADLINE, OR IF
A FORM OF ELECTION IS DELIVERED TO THE PAYING AGENT AFTER THE ELECTION
DEADLINE, THE COMPANY OR THE SURVIVING CORPORATION, AS THE CASE MAY BE, WILL
DEEM SUCH DELIVERY A REVOCATION OF ANY OBJECTIONS TO THE MERGER PREVIOUSLY
FILED WITH THE COMPANY FOR PURPOSES OF EXERCISING DISSENTER'S RIGHTS AND A
WAIVER OF ANY FUTURE RIGHTS TO SUCH EXERCISE.
The Company's shareholders will have the right to dissent from the Merger
and to obtain an appraisal of their shares of Class A Stock or Class B Stock in
the event that the Merger Agreement is approved and is not abandoned or
terminated. Appraisal value will be determined as of the day immediately
preceding the Meeting.
The summary set forth below does not purport to be a complete statement
of the provisions of Texas law relating to shareholders' rights to dissent
and to obtain an appraisal of Class A Stock or Class B Stock in connection
with the Merger and is qualified in its entirety by reference to Articles
5.12 and 5.13 of the TBCA, which are attached hereto as Annex D, and the
other relevant provisions of the TBCA. The TBCA contains provisions that, in
the case of the merger of a corporation organized under the laws of Texas,
grant Dissenting Shareholders who comply with the procedures set forth in
Articles 5.12 and 5.13 the right to receive payment in cash equal to the
appraisal value of their shares. The principal provisions of Articles 5.12
and 5.13 as they apply to the Merger are summarized below.
To claim dissenters' rights, a shareholder must (i) prior to the
shareholder vote on the Merger, file a written objection to the Merger setting
out that the shareholder's right to dissent will be exercised if the Merger is
effective and giving such shareholder's address to which notice of the Merger
shall be mailed in the event it occurs; (ii) not vote such shareholder's Class A
Stock or Class B Stock in favor of approval of the Merger; (iii) if the Merger
is approved by the Company's shareholders and consummated, demand, in writing,
payment of the fair value of such shareholder's shares of Class A Stock or Class
B Stock from the Surviving Corporation (stating therein the number and class of
shares of Class A Stock or Class B Stock owned by such shareholder and an
estimate of the fair market value of such shares) within ten days after the date
the notice that the Merger has become effective is delivered or mailed to the
shareholder, which notice must be provided to all shareholders who complied with
(i) and (ii) above within ten days after the Effective Time of the Merger; and
(iv) within twenty days of filing such written demand for payment, submit to the
Surviving Corporation the certificate or certificates representing such
shareholder's shares of Class A Stock or Class B Stock for the purpose of having
a notation placed thereon to the effect that a demand for payment with respect
thereto has been made.
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Neither an abstention from voting on the Merger proposal nor a vote against
the Merger will be deemed to satisfy the requirement that a written objection be
filed with the Company before the vote on the Merger. However, a shareholder who
has filed a written objection to the Merger as provided above will not be deemed
to have waived such shareholder's dissenter's rights by abstaining from voting
on the Merger proposal or otherwise not voting; however, such a shareholder will
be deemed to have waived such shareholder's dissenters' rights if such
shareholder votes in favor of the Merger. A shareholder who fails to make the
written demand within the ten-day period described above will be bound by the
Merger as if such shareholder had voted in favor thereof. If a shareholder fails
to submit such shareholder's certificates within the twenty-day period described
above, such shareholder's rights to receive payment pursuant to dissenters'
rights shall terminate unless a court for good and sufficient cause determines
otherwise.
In the event that the Merger is approved by the Company's shareholders and
a shareholder elects to exercise such shareholder's dissenters' rights, the
Surviving Corporation shall, within twenty days of the date it receives such
shareholder's written demand for payment, deliver or mail to such shareholder a
written notice that either (i) provides that the Surviving Corporation accepts
the amount claimed by the Dissenting Shareholder as the fair value of such
shareholder's shares and that the Surviving Corporation agrees to pay such
amount within ninety days after the Effective Time of the Merger and upon
surrender of the certificates for such shareholder's shares duly endorsed; or
(ii) contains an estimate by the Surviving Corporation of the fair value of the
shares and an offer to pay such amount within ninety days after the Effective
Time of the Merger, but only if the Surviving Corporation receives from the
shareholder, within sixty days after such date, a notice from the shareholder
that such shareholder agrees to accept such amount upon surrender of such
shareholder's share certificate or certificates duly endorsed.
If the Dissenting Shareholder and the Surviving Corporation fail to agree
on a value within sixty days after the Effective Time of the Merger, either the
shareholder or the Surviving Corporation may, within sixty days after the
expiration of such sixty day period, file a petition in any court of competent
jurisdiction in Tarrant County, Texas for the purpose of obtaining a
determination of the fair value of the shares of the Dissenting Shareholder.
Then, if the court determines that the shareholder has complied with the
requirements for a Dissenting Shareholder under Articles 5.12 and 5.13 of the
TBCA, the court will appoint one or more appraisers to determine the value of
the shareholder's shares. All Dissenting Shareholders who do not reach agreement
with the Surviving Corporation as to the value of their shares within sixty days
of the Effective Time of the Merger will receive notice of such court
proceeding, and those who are found to have complied with Articles 5.12 and 5.13
of the TBCA will be bound by the final judgment of the court as to the value of
their shares.
A Dissenting Shareholder who makes a written demand for payment of such
shareholder's shares will not thereafter be entitled to vote or to exercise any
other rights of a shareholder, except the right to receive payment for such
shareholder's shares pursuant to the TBCA.
A Dissenting Shareholder may withdraw such shareholder's demand for payment
for such shareholder's shares at any time before such payment is made; however,
the demand may not be withdrawn after payment by the Surviving Corporation has
been made nor may the demand be withdrawn after a petition has been filed with a
court for such payment unless the Surviving Corporation consents to the
withdrawal of the demand.
In the absence of fraud in the transaction, the remedy provided by Article
5.12 of the TBCA is the exclusive remedy for the recovery of the value of shares
or money damages by a Dissenting Shareholder. If the Surviving Corporation
complies but a Dissenting Shareholder fails to comply with the requirements of
Articles 5.12 and 5.13 of the TBCA, such shareholder is not entitled to bring an
action for the recovery of the value of such shareholder's shares or for money
damages.
ANY SHAREHOLDER CONTEMPLATING THE EXERCISE OF THE RIGHTS SUMMARIZED ABOVE
IN CONNECTION WITH THE MERGER IS URGED TO CONSULT SUCH SHAREHOLDER'S OWN
COUNSEL. THE FAILURE BY A SHAREHOLDER TO FOLLOW PRECISELY ALL OF THE STEPS
REQUIRED BY ARTICLES 5.12 AND 5.13 OF THE TBCA WILL RESULT IN THE LOSS OF THOSE
RIGHTS.
50
<PAGE>
MARKET PRICE DATA, DISTRIBUTIONS AND
SECURITY OWNERSHIP OF IRA COMMON STOCK
There is presently no trading market for the Company's common stock, of
either class, and it is very unlikely that a market will develop in the future.
As an insurance agency incorporated in Texas, only insurance agents licensed in
Texas can, under Texas law, own the Company's stock. Therefore, the stock price
cannot be and is not determined by actions and considerations of any such
market.
NUMBER OF SECURITY HOLDERS
As of September 30, 1998, the Company had 14 shareholders of record of its
Class A Stock, and 500 shareholders of record of its Class B Stock.
DISTRIBUTION HISTORY
The following is a history of the distributions paid by the Company since
inception. Distributions have only been paid on Class B Stock.
<TABLE>
<CAPTION>
DATE OF RECORD PAYMENT DATE PER SHARE
- ------------------------ ---------------------- -------------
<C> <C> <C>
October 20, 1987 December 3, 1987 $ 8.00
September 30, 1988 November 30, 1988 2.10
September 30, 1989 November 30, 1989 2.65
September 30, 1990 November 28, 1990 3.00
September 30, 1991 November 30, 1991 4.00
September 30, 1992 December 1, 1992 6.59
September 30, 1993 December 1, 1993 7.31
September 30, 1994 December 1, 1994 4.88
September 30, 1995 December 1, 1995 4.50
September 30, 1996 December 2, 1996 7.63
September 30, 1997 December 1, 1997 7.73
</TABLE>
On October 31, 1988, the Company's shareholders approved an amendment to
the Company's Articles of Incorporation whereby Class B Stock would split on a
basis of five new shares for each one share then outstanding. The par value of
Class B Stock was correspondingly reduced from a par value of $0.10 per share to
a par value of $0.02 per share. The stock split became effective on November 1,
1988.
SECURITY OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS OF IRA
COMMON STOCK
51
<PAGE>
The following table sets forth, as of September 30, 1998, the number of
shares of Class A Stock and Class B Stock and the percentage of outstanding
shares of each class owned of record by (i) each director of the Company;
(ii) each executive officer of the Company; (iii) all directors and officers
of the Company as a group; and (iv) each person who beneficially owns more
than five percent of a class of common stock. Members of the Management
Group are denoted with an *. Prior to the consummation of the Merger, First
Command does not beneficially own shares of Class A Stock or Class B Stock.
<TABLE>
<CAPTION>
AMOUNT AND
NAME AND ADDRESS POSITION WITH TITLE NATURE OF PERCENT
OF BENEFICIAL OWNER THE COMPANY OF CLASS BENEFICIAL OWNERSHIP OF CLASS
- ------------------- ----------- -------- -------------------- --------
<S> <C> <C> <C> <C>
Lamar C. Smith (1)* Director, Chairman of Class A 2 shares 8.00
the Board and Chief Class B 40,000 shares 4.23
Executive Officer
James N. Lanier (1)* Director, President and Class A 2 shares 8.00
Chief Operating Officer Class B 18,000 shares 1.90
Howard M. Crump (1)* Director and Senior Vice Class A 2 shares 8.00
President and Director Class B 26,000 shares 2.75
of Marketing
Hal N. Craig (1)* Director and Vice Class A 1 share 4.00
President and Director Class B 5,600 shares (2)
of Insurance
Donaldson D. Frizzell (1)* Director and Vice Class A 1 share 4.00
President of Investments Class B 7,100 shares (2)
Jerry D. Gray* Director and Regional Class A 1 share 4.00
5705 Cameron Hall Place Agent Class B 20,000 shares 2.12
Atlanta, GA 30328
David P. Thoreson* Director and Regional Class A 1 share 4.00
2016 Empire Mine Circle Agent Class B 27,850 shares 2.95
Gold River, CA 95670
Carroll H. Payne II* Director Class A 3 shares 12.00
1814 8th Avenue Class B 46,977 shares 4.97
Suite A-3
Fort Worth, TX 76110
Naomi K. Payne* Director Class A 3 shares 12.00
11 Marion Terrace Class B 46,977 shares 4.97
Brookline, MA 02146
James J. Ellis Director Class A -- --
Regency Plaza, LB 72 Class B -- --
3710 Rawlings, Suite 1010
Dallas, TX 75219-4239
Logan Dickinson Director Class A -- --
314 Main Street Class B -- --
Suite 202
Fort Worth, TX 76102
Martin R. Durbin (1) Treasurer and Chief Class A -- --
Financial Officer Class B 1,725 shares (2)
Robert F. Watson (1) Director and Corporate Class A -- --
Counsel Class B -- --
52
<PAGE>
Freda J. Payne* Class A 3 shares 12.00
6812 Riverdale Class B 46,977 shares 4.97
Fort Worth, TX 76132
Debra S. Payne Class A 3 shares 12.00
5910 N. Central Class B 46,528 shares 4.92
Expressway Suite 1000
Dallas, TX 75206
Richard E. Giles Class A 1 share 4.00
13003 Richards Class B 5,400 shares (2)
Overland Park, KS 66213
Margaret L. Galda Class A 1 share 4.00
2741 Mannerwood Trail Class B 4,500 shares (2)
Fort Worth, TX 76109
Edward T. Elmendorf Jr. Class A 1 share 4.00
6410 Southwest Blvd. Class B 17,550 shares 1.86
Suite 200
Fort Worth, TX 76109
All directors and executive Class A 16 shares 64.00
officers as a group Class B 240,229 shares 25.41
(13 persons)
</TABLE>
- ---------------
(1) The business address of this person is 4100 South Hulen, Fort Worth,
Texas 76113.
(2) Represents less than 1% of the class.
MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP
OF FIRST COMMAND COMMON STOCK
There is presently no market for the First Command Common Stock. Upon
consummation of the Merger, the Surviving Corporation will be an insurance
agency incorporated in Texas, and only insurance agents licensed in Texas will
be permitted, under Texas law, to own the Surviving Corporation Common Stock.
Therefore, it is anticipated that no market will develop for the Surviving
Corporation Common Stock, and the stock price will not be determined by actions
and considerations of any such market.
53
<PAGE>
NUMBER OF SECURITY HOLDERS
As of September 30, 1998, First Command had five shareholders of record
of its Common Stock.
DISTRIBUTION HISTORY
To date, First Command has paid no distributions on its Common Stock.
After the Merger, pursuant to the Surviving Corporation Shareholders' Agreement,
the Surviving Corporation will pay distributions on the Surviving Corporation
Common Stock that are pro rata to all shareholders, to the extent that Surviving
Corporation Shareholders may be deemed to receive income as the result of
Surviving Corporation's status as an S corporation. Further, the IRA Board,
which will be the Board of the Surviving Corporation upon consummation of the
Merger, anticipates that the Surviving Corporation, subject to the fiduciary
duties of the Board of Directors of the Surviving Corporation and the ongoing
financial condition of the Surviving Corporation, will declare and pay
distributions that are pro rata to all shareholders on the Surviving Corporation
Common Stock that are intended to approximate the income that the Class A/B
Shareholder would have received from the competitive reinvestment of the Class B
Cash Consideration, taking into account income tax considerations. Further,
holders of MAP Units will be entitled to any distribution equivalents that the
Board of Directors of the Surviving Corporation may declare pursuant to the
Mission Accomplishment Plan.
SECURITY OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS OF FIRST
COMMAND COMMON STOCK
The following table sets forth, as of September 30, 1998, the number of
shares of First Command Common Stock and the percentage of outstanding shares
of each class owned of record by (i) each director of First Command; (ii)
each executive officer of First Command; (iii) all directors and officers of
First Command as a group; and (iv) each person who beneficially owns more
than five percent of First Command Common Stock. Members of the Management
Group are denoted with an *.
<TABLE>
<CAPTION>
AMOUNT AND
NAME AND ADDRESS POSITION WITH NATURE OF PERCENT
OF BENEFICIAL OWNER FIRST COMMAND BENEFICIAL OWNERSHIP OF CLASS
- ------------------- ------------- -------------------- --------
<S> <C> <C> <C>
Lamar C. Smith (1)* Director, Chairman 250 shares 25.00
of the Board and
Chief Executive
Officer
James N. Lanier (1)* Director, President 250 shares 25.00
and Chief Operating
Officer
Howard M. Crump (1)* Director 250 shares 25.00
Carroll H. Payne II* Director 225 shares 22.50
1814 8th Avenue
Suite A-3
Fort Worth, TX 76110
Martin R. Durbin (1) Treasurer -- --
Robert F. Watson (1) Secretary -- --
Freda J. Payne* 25 shares 2.50
6812 Riverdale
Fort Worth, TX 76132
All directors and
executive officers as
a group (6 persons) 975 shares 97.50
</TABLE>
- ---------------
(1) The business address of this person is 4100 South Hulen, Fort Worth,
Texas 76113.
Each of the First Command Shareholders is a member of the Management
Group and, except for Freda J. Payne, a member of the executive committee of
the IRA Board. On April 1, 1998, each of the First Command Shareholders,
other than Freda J. Payne, acquired 250 shares of First Command Common Stock
at a price of $1.00 per share. On June 26, 1998, Carroll H. Payne, II gifted
25 shares of First Command Common Stock to Freda J. Payne. See "CERTAIN
INFORMATION CONCERNING FIRST COMMAND."
Upon consummation of the Merger, all of the Surviving Corporation Common
Stock will be held by (i) the Class A Shareholders, (ii) the Class A/B
Shareholders who do not elect to receive Class B Cash Consideration and (iii)
the First Command Shareholders, to the extent that such shareholders do not
elect to seek appraisal rights.
PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS OF IRA
The following unaudited pro forma condensed consolidated income statements
(the "Pro Forma Condensed Consolidated Financial Statements") have been based on
the historical consolidated financial statements of the Company for the year
ended September 30, 1997 and the nine months ended June 30, 1998 as if the
Merger was consummated on October 1, 1996. The pro forma condensed consolidated
balance sheet gives effect to the Merger as if it was consummated on June 30,
1998. The pro forma adjustments are described more fully in the accompanying
notes.
The information contained in the Pro Forma Condensed Consolidated
Financial Statements assumes that all of the shares of Class B Stock held by
Class B Shareholders who do not own Class A Stock are repurchased and that no
Class A/B shareholder elects to receive the Class B Cash Consideration with
respect to his or shares of Class B Stock. See "THE PROPOSED
MERGER--Conversion of Shares." In event that any of the Class A/B
shareholders elects to receive the Class B Cash Consideration with respect to
his or shares of Class B Stock, although remote, the amount of Class B Cash
Consideration paid to such Class A/B shareholder would decrease shareholders'
equity and either decrease cash or increase long term liabilities by a
similar amount. In the event that all of the Class A/B Shareholders elect to
receive the Class B Cash Consideration with respect to their Class B Stock,
the total merger consideration would be approximately $27 million, which
would result in a further reduction in shareholders' equity and a
corresponding increase in long term liabilities.
The Pro Forma Condensed Consolidated Financial Statements are presented for
informational purposes only and do not purport to be indicative of the results
of operations that actually would have been achieved had such transactions been
consummated on the date or for the periods indicated and do not purport to be
indicative of the balance sheet data or results of operations as of any future
date or for any future period. The Pro Forma Condensed Consolidated Financial
Statements should be read in conjunction with the Company's historical
consolidated financial statements and notes thereto and other information
contained in the documents incorporated by reference herein.
54
<PAGE>
The pro forma adjustments were applied to the respective historical
statements to reflect and account for the Merger as a business combination
accounted for as a purchase. The net assets of First Command for accounting
purposes are being recorded at their existing carrying value, which
approximates their fair value.
55
<PAGE>
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC. AND
FIRST COMMAND FINANCIAL CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED INCOME STATEMENT
FOR THE YEAR ENDED SEPTEMBER 30, 1997
<TABLE>
<CAPTION>
First
Independent Command
Research Financial Pro Forma
Agency Corporation Adjustments Notes Combined
------------- ------------ ------------- ------ --------------
<S> <C> <C> <C> <C> <C>
Commission revenue . . . . . . . . . . . . . . . . $122,329,601 $ 0 $ 0 $ 122,329,601
First Command Bank operating income. . . . . . . . 58,458 58,458
Commissions, bonuses & agent expenses. . . . . . . (87,809,129) (12,955,382) (c) (100,764,511)
General & administrative expenses. . . . . . . . . (25,719,662) (25,719,662)
------------- ------------ ------------- --------------
Income (loss) from operations . . . . . . 8,859,268 0 (12,955,382) (4,096,114)
Other income, net. . . . . . . . . . . . . . . . . 5,216,114 (1,120,000) (a) 4,096,114
------------- ------------ ------------- --------------
Income before taxes . . . . . . . . . . . 14,075,382 0 (14,075,382) 0
Provision for income taxes . . . . . . . . . . . . (4,639,886) 4,639,886 (b) 0
------------- ------------ ------------- --------------
Net income. . . . . . . . . . . . . . . . $ 9,435,496 $ 0 $ (9,435,496) $ 0
------------- ------------ ------------- --------------
------------- ------------ ------------- --------------
Weighted average shares outstanding. . . . . . . . 937,502 0 (577,878) 359,624
Net income per share . . . . . . . . . . . . . . . $ 10.06 $ 0.00 (10.06) $ 0.00
</TABLE>
56
<PAGE>
NOTES TO PRO FORMA CONDENSED CONSOLIDATED INCOME STATEMENT
FOR THE YEAR ENDED SEPTEMBER 30, 1997
(UNAUDITED)
(a) Interest expense at 7% on $16.0 million note payable used to repurchase
Class B Stock. The amount financed is based on cash available at June 30,
1998. The Merger is expected to be consummated on September 30, 1998. At
that time, substantially more cash should be available from operations
which would reduce the reliance on borrowed funds to support the repurchase
of the Class B Stock and result in a lower interest cost to the Merger.
(b) To eliminate federal income taxes payable at the corporate level as a
result of S corporation status.
(c) To accrue Mission Accomplishment Plan compensation. On July 22, 1998
the Company issued 138,275 MAP Units, consisting of 138,275 SARs and
138,275 DERs, to certain of its agents and employees. These units have
an exercise period of five to ten years, with the SAR portion of each
MAP Unit valued at $1 as an initial base price as determined by the IRA
Board. Regardless of the initial value placed on the SARs, the value to
SAR holders will result from the increase in the SAR value as determined
by the IRA Board. Subject to the discretion of the IRA Board, it is
currently intended that the Company will record monthly accruals for
Mission Accomplishment Plan compensation based on its GAAP net income,
after taxes, but before MAP expense and before any unrealized gains or
losses on investments as SAR expense. This is similar to the manner in
which dividends on Class B Stock have been historically determined. The
determination of the SAR accrual is independent of, and unrelated to,
the Class B Cash Consideration ($28.24 per share) to be paid in the
Merger. The awards of MAP units vest upon issuance by the IRA Board.
The holders of the SAR units can only cash them out when they leave the
Company, through death, termination or retirement, the Board of Directors
declares a DER payment, or the five to ten year exercise period expires.
The value recorded for the MAP units will not differ from the cash out
price. The SAR value will equal the amount expensed net of any DER or
SAR payments made.
(d) The pro forma condensed consolidated income statement does not include
anticipated one-time Merger costs of approximately $1.2 million or any
potential one-time adjustments related to changes in deferred taxes as a
result of conversion to S corporation federal income tax status.
57
<PAGE>
Unaudited Pro Forma Condensed Consolidated Income Statement
Nine Months Ended June 30, 1998
<TABLE>
<CAPTION>
First
Independent Command
Research Financial Pro Forma
Agency Corporation Adjustments Notes Combined
--------------- -------------- --------------- ----- ----------------
<S> <C> <C> <C> <C> <C>
Commission revenue . . . . . . . . . . . . $ 95,006,492 $ 0 $ 0 $ 85,006,492
First Command Bank operating income. . . . 1,087,339 1,087,339
Commissions, bonuses & agent expenses. . . (70,335,809) (10,154,076) (c) (80,488,885)
General & administrative expenses. . . . . (22,175,423) (22,175,423)
--------------- -------------- --------------- ----------------
Income (loss) from operations . . . . 3,582,599 0 (10,154,076) (6,571,477)
Other income, net. . . . . . . . . . . . . 7,416,922 (7,746) (837,699) (a) 6,571,477
--------------- -------------- --------------- ----------------
Income before taxes . . . . . . . . . 10,999,521 (7,746) (10,991,775) 0
Provision for income taxes . . . . . . . . (3,467,015) 3,467,015 (b) 0
--------------- -------------- --------------- ----------------
Net income. . . . . . . . . . . . . . $ 7,532,506 $ (7,746) $ (7,524,780) $ 0
--------------- -------------- --------------- ----------------
--------------- -------------- --------------- ----------------
Weighted average shares outstanding. . . . 986,144 25 (626,520) 359,624
Basic earnings . . . . . . . . . . . . . . $ 7.64 $ (309.84) $ (302.20) $ 0.00
</TABLE>
58
<PAGE>
NOTES TO PRO FORMA CONDENSED CONSOLIDATED INCOME STATEMENT
NINE MONTHS ENDED JUNE 30, 1998
(UNAUDITED)
(a) Interest expense at 7% on $16.0 million note payable used to repurchase
Class B Stock. The amount financed is based on cash available at June 30,
1998. The Merger is expected to be consummated on September 30, 1998. At
that time, substantially more cash should be available from operations
which would reduce the reliance on borrowed funds to support the repurchase
of the Class B Stock and result in a lower interest cost to the Merger.
(b) To eliminate federal income taxes payable at the corporate level as a
result of S corporation status.
(c) To accrue Mission Accomplishment Plan compensation. On July 22, 1998
the Company issued 138,275 MAP Units, consisting of 138,275 SARs and
138,275 DERs, to certain of its agents and employees. These units have
an exercise period of five to ten years, with the SAR portion of each
MAP Unit valued at $1 as an initial base price as determined by the IRA
Board. Regardless of the initial value placed on the SARs, the value to
SAR holders will result from the increase in the SAR value as determined
by the IRA Board. Subject to the discretion of the IRA Board, it is
currently intended that the Company will record monthly accruals for
Mission Accomplishment Plan compensation based on its GAAP net income,
after taxes, but before MAP expense and before any unrealized gains or
losses on investments as SAR expense. This is similar to the manner in
which dividends on Class B Stock have been historically determined. The
determination of the SAR accrual is independent of, and unrelated to,
the Class B Cash Consideration ($28.24 per share) to be paid in the
Merger. The awards of MAP units vest upon issuance by the IRA Board.
The holders of the SAR units can only cash them out when they leave the
Company, through death, termination or retirement, the Board of Directors
declares a DER payment, or the five to ten year exercise period expires.
The value recorded for the MAP units will not differ from the cash out
price. The SAR value will equal the amount expensed net of any DER or
SAR payments made.
(d) The pro forma condensed consolidated income statement does not include
$537,000 of the anticipated one-time Merger costs of approximately
$1.2 million or any potential one-time adjustments related to changes
in deferred taxes as a result of conversion to S corporation federal
income tax status. Merger costs of $663,000 have been expensed as
incurred through June 30, 1998.
59
<PAGE>
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
JUNE 30, 1998
<TABLE>
<CAPTION>
Independent First Command
Research Financial
Agency Corporation Adjustments Notes Combined
------------- ------------ ------------- ----- -------------
<S> <C> <C> <C> <C> <C>
Current assets:
Cash and cash equivalents . . . . . $ 10,420,754 $ 1,000 $ (605,798) (a)
(537,000) (b) $ 9,275,956
Other current assets. . . . . . . . 3,329,629 3,329,629
------------- ------------ ------------- -------------
Total current assets. . . . . . . 13,750,383 1,000 (1,142,798) 12,608,585
Property and equipment . . . . . . . . . 12,668,931 26,770 12,695,701
First Command Bank assets. . . . . . . . 59,685,034 59,685,034
Other assets . . . . . . . . . . . . . . 78,028,243 6,495 78,034,738
------------- ------------ ------------- -------------
Total assets. . . . . . . . . . . . $164,132,581 $ 34,265 $ (1,142,798) $163,024,058
------------- ------------ ------------- -------------
------------- ------------ ------------- -------------
Current liabilities:
Loans from insurance companies. . . $ 17,176,789 $ 0 $ 17,176,789
Other current liabilities . . . . . 16,785,314 16,785,314
------------- ------------ ------------- -------------
Total current liabilities . . . . 33,982,103 0 0 33,962,103
Stock appreciation rights payable. . . . 0
Long term liabilities. . . . . . . . . . 27,613,452 41,011 16,000,000 (a)
(1,413,679) (c) 42,240,784
First Command Bank liabilities . . . . . 50,874,747 50,874,747
------------- ------------ ------------- -------------
Shareholders' equity:
Common stock - Class A. . . . . . . 10 10 (8) (d)
3,584 (d) 3,596
Common stock - Class B. . . . . . . 55,729 (48,539) (d)
(7,190) (d) 0
Additional paid-in capital. . . . . 1,798,308 990
(1,798,308) (a)
3,605 (d) 4,595
Retained Earnings . . . . . . . . . 32,551,010 (7,746) (14,795,729) (a)
1,413,679 (c)
(537,000) (b) 18,624,214
Unrealized holding gains. . . . . . 17,314,019 17,314,019
Treasury stock - Class A -
at par. . . . . . . . . . . . . . (8) 8 (d) 0
Treasury stock - Class B -
at par. . . . . . . . . . . . . . (36,779) (11,760) (a)
48,539 (d) 0
------------- ------------ ------------- -------------
Total Shareholders' equity. . . . 51,682,289 (6,746) (15,729,119) 35,946,424
------------- ------------ ------------- -------------
Total liabilities and equity. . . $164,132,591 $ 34,265 $ (1,142,798) $163,024,058
------------- ------------ ------------- -------------
Book value per share . . . . . . . . . . $ 54.55 $ (269.84) $ -- (e) $ 99.96
</TABLE>
60
<PAGE>
NOTES TO PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEETS
JUNE 30, 1998
(UNAUDITED)
(a) Assumes excess cash of $605,798 is used in conjunction with a $16.0 million
note payable to buy back 588,024 shares of Class B Stock at $28.24 per
share. These amounts are based on cash available at June 30, 1998. The
Merger is expected to be consummated on September 30, 1998. At that
time, substantially more cash should be available from operations which
would reduce the reliance on borrowed funds to support the repurchase of
the Class B Stock. Also, these amounts exclude shares of Class B Stock
held by Class A/B Shareholders that, pursuant to the terms of the Merger,
will be converted into Surviving Corporation Nonvoting Stock. Additionally,
these amounts assume that no Class A/B Shareholders will elect to receive
the Class B Cash Consideration in lieu of receiving shares of Surviving
Corporation Nonvoting Stock. If any Class A/B shareholders do elect to
receive the Class B Cash Consideration for his or her Class B Stock,
shareholders' equity will be further reduced by $28.24 per share redeemed.
As of June 30, 1998, there were 947,483 shares of Class B Stock
outstanding, of which 588,024 shares are being repurchased. The par
value of the Class B Stock outstanding at June 30, 1998 of $55,729
net of treasury stock of $36,779 represents 947,483 shares
outstanding at a $.02 par value. The repurchase price for Class B
Stock has historically been based on the book value per share less
unrealized gains and dividends per share as of the preceding fiscal
year end. The increase in per share price over the previous year's
share price is added incrementally, 1/12th per month for the
ensuing 12 months, to the current September 30 share price (based
upon the prior year's computation).
(b) Costs associated with the Merger are anticipated to be approximately
$1.2 million. Of this amount, $663,000 have been expensed as incurred
through June 30, 1998, with the remainder ($537,000) reflected in the pro
forma financial statements. A substantial portion of these expenses are
not expected to be tax deductible and thus have not been tax effected.
(c) Assumes deferred federal income tax payable related to the book versus
tax depreciation temporary differences are removed from liabilities and
credited to equity upon conversion to S corporation status. The deferred
tax asset related to the future tax deduction of the agent Deferred Career
Commission Plan expenses as well as the deferred tax liability related to
unrealized holding gains will remain on the books for a ten year period
until the built-in gain income tax provision expires. If during this
ten-year period the related assets or liabilities are sold or paid, the
tax impact will be recorded to the deferred tax accounts accordingly.
See "SPECIAL FACTORS--Accounting Treatment."
(d) Upon the effective date of the merger, the treasury stock account will
be closed to the common stock account as the treasury stock will be
canceled. In addition, the now reduced par value related to all
outstanding common shares will be reflected in the common stock account
with the remainder increasing paid-in capital.
(e) Pro forma book value per share does not include the anticipated charge
to equity to reflect the Mission Accomplishment Plan compensation that is
expected to be recorded for subsequent periods. See "CERTAIN INFORMATION
CONCERNING IRA--Mission Accomplishment Plan. Per the Pro Forma Condensed
Consolidated Income Statement, the charge to equity for the nine months
ending June 30, 1998 is expected to have been $10,154,076.
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DESCRIPTION OF IRA CAPITAL STOCK
GENERAL
The Company is authorized to issue two classes of shares which are
designated Class A Voting Common and Class B Nonvoting Common. The total number
of shares that the Company is authorized to issue is 1,000 shares of Class A
Stock, par value $0.10 per share, and 100,000,000 shares of Class B Common, par
value of $0.02 per share. The following is a summary of certain of the rights
and privileges pertaining to Class A Stock and Class B Stock.
The Merger and the Merger Agreement require for the approval thereof, of
(i) the holders of at least 66-2/3% of the outstanding shares of Class A Stock
and Class B Stock, voting together as a single class, (ii) the holders of at
least 66-2/3% of the outstanding shares of Class A Stock and Class B Stock, each
voting separately as a class, and (iii) the holders of at least a majority of
the outstanding shares of Class B Stock not held by Class A/B Shareholders.
CLASS A STOCK
Holders of Class A Stock are entitled to cast one vote for each share held
of record in all matters presented to the shareholders, including election of
the IRA Board. As of September 30, 1998, there were 25 shares of Class A Stock
issued and outstanding. The holders of Class A Stock do not have cumulative
voting rights; therefore, the holders of more than 50% of the outstanding shares
of Class A Stock can elect all directors. Class A Stock is primarily held by
directors, executive officers and certain insurance agents of IRA and by certain
descendants of Carroll H. Payne, the founder of the Company.
Freda J. Payne, Debra S. Payne, Carroll H. Payne II and Naomi K. Payne (the
"Payne Family Members") are subject to a stock agreement, dated March 22, 1983
("Payne Family Stock Agreement"), between such family members and the Company
that provides, among other things, that in the event a Payne Family Member
desires to sell or otherwise dispose of all or any portion of his or her Class A
Stock, or in the event of the death of a Payne Family Member, the other Payne
Family Members shall have the option to purchase such shares, on a proportionate
basis, for a period of sixty (60) days. In addition, the Payne Family Stock
Agreement provides that, in the event a Payne Family Member desires to sell any
Class B Stock, the person to whom Class B Stock is offered must be a properly
licensed insurance agent under contract with the Company; further, such
recipient of Class B Stock must execute a stock agreement with the Company
limiting the ownership and transferability of Class B Stock, and such recipient,
after the transfer, must not own, along with members of his or her immediate
family, more than 5% of the outstanding shares of stock in the Company. The
Payne Family Stock Agreement also provides that in the event any Payne Family
Member ceases to be a licensed Texas life insurance agent, such Payne Family
Member shall be obligated to dispose of all Class A Stock and Class B Stock
owned by him or her. The Payne Family Stock Agreement further provides that
payment for Class B Stock offered by Payne Family Members to other Payne Family
Members or the Company shall be in cash within sixty days of the acceptance of
such offer.
The other holders of Class A Stock that are not Payne Family Members are
subject to a stock agreement with IRA (the "Class A Stock Agreement"), in
which, among other things, IRA will acquire such Class A Stock within a
period of ninety (90) days in the event such shareholder fails to continue as
a licensed insurance agent, ceases to be a duly authorized agent of IRA,
dies, or desires to sell his or her shares.
CLASS B STOCK
Holders of Class B Stock have no voting rights, except for certain voting
rights in the event of certain extraordinary transactions (such as the Merger)
as provided by the TBCA, or as otherwise provided by law. All holders of Class
B Stock are subject to either the Class B Stock Agreement (as defined below)
and/or the Payne Family Stock Agreement. Consequently, the primary voting
control of the Company is vested in the holders of Class
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A Stock. Because the voting rights are limited and significant restrictions
exist on the transfer of Class B Stock, Class B Stock is viewed primarily as
means to distribute distribution income to shareholders of the Company. As
of September 30, 1998, there were 945,458 shares of Class B Stock outstanding.
Shares of Class B Stock are held by agents and other employees of IRA; in
addition, all of the holders of Class A Stock hold shares of Class B Stock.
Class B Stock was issued by IRA through ten separate offerings. Three of such
offerings occurred in May 1995, September 1996 and June 1997 and were registered
with the Commission under the Securities Act, pursuant to three registration
statements on Form S-1.
Because the number of holders of Class B Stock was equal to or exceeded
500, on January 22, 1997, IRA registered Class B Stock under Section 12(g) of
the Exchange Act pursuant to a registration statement on Form 8-A. As a result
of the registration of Class B Stock under the Exchange Act, IRA is required to
furnish certain information to its Class B Shareholders and to the Commission.
As required by Texas law, only persons licensed as insurance agents by
the state of Texas are permitted to own shares in an insurance agency
incorporated in the state of Texas. Each holder of Class B Stock has
executed an agreement with IRA (the "Class B Stock Agreement"). Pursuant to
the Class B Stock Agreement, each Class B Shareholder agrees that, in
accordance with Texas law pertaining to incorporated insurance agencies, the
holder must be duly licensed as a Texas life insurance agent, and, in the
event the holder ceases to be so licensed, the holder and the Company agree
that the holder's shares will be repurchased by the Company. The shares will
also be repurchased by the Company (1) in the event that the holder ceases to
be a duly authorized agent of the Company, (2) in the event of the holder's
death, or (3) in the event that the holder desires to sell or otherwise
dispose of his/her shares. Upon the receipt of written notice of any such
event, the Company has ninety (90) days within which to close the repurchase
of such shares. Under the terms of the Class B Stock Agreement, the price at
which the Company will repurchase such shares is determined by the Company,
in its sole and absolute discretion, at least annually. The Company will
determine to pay the repurchase price in cash, by delivery of the Company's
unsecured promissory note containing such terms and provisions as Company
shall determine, or by a combination of cash and such a promissory note.
Under the Class B Stock Agreement, the holder agrees not to transfer, pledge,
assign, or otherwise in any manner encumber any such shares, except pursuant
to the terms of the Class B Stock Agreement.
While the Company may change its methodology or adjust the Class B Stock
price based on other factors at any time in the future, the price at which the
Company has purchased Class B Stock in the past has been determined from the per
share book value of the Class B Stock at the end of the Company's current fiscal
year, reduced by distributions declared for payment on the current year's
earnings. The resultant net increase in per share book value over the previous
year's similarly computed Class B Stock price is then added incrementally,
1/12th per month for the ensuing 12 months to the current September 30 Class B
Stock price (based upon the prior year's computation). For the purposes of
determining the purchase price of Class B Stock, the calculation of per share
book value does not include the effect of reporting the Company's investments at
market value as a result of the application by the Company of SFAS 115.
DISTRIBUTIONS; PREEMPTIVE RIGHTS; LIQUIDATION
All IRA Shareholders are entitled to receive distributions as may be
declared on the Class A Stock or the Class B Stock by the IRA Board from funds
legally available therefor. The Company has paid distributions on Class B Stock
in each of the years from 1987 through 1997. No distributions have been declared
on Class A Stock. See "MARKET PRICE DATA, DISTRIBUTIONS AND SECURITY OWNERSHIP
OF IRA COMMON STOCK."
IRA Shareholders do not have preemptive rights to subscribe to any
additional shares issued by the Company. In the event of liquidation, all IRA
Shareholders are entitled to share pro rata in any distribution of the Company's
assets after payment of liabilities.
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DESCRIPTION OF THE SURVIVING CORPORATION CAPITAL STOCK
GENERAL
The following is a summary of certain of the rights and privileges that,
after the Effective Time, will pertain to the stock of the Surviving
Corporation. For a full description of such stock, reference is made to, and
the following summary is qualified in its entirety by, the Articles of
Incorporation and the Bylaws of the Surviving Corporation, as proposed to be
amended, a copy of which are attached hereto as Annex E.
COMMON STOCK
Following the Merger, the Surviving Corporation will be authorized by its
Articles of Incorporation, as amended, to issue an aggregate of 10,000 shares of
Surviving Corporation Voting Stock and an aggregate of 10,000,000 shares of
Surviving Corporation Nonvoting Stock.
The Surviving Corporation Voting Stock will be entitled to one vote per
share on all matters submitted for action by the shareholders. Accordingly,
the holders of more than 50% of the shares of Surviving Corporation Voting
Stock will be able to elect all of the directors. In such event, the holders
of the remaining shares will not be able to elect any directors. Holders of
Surviving Corporation Nonvoting Stock have no voting rights, except for
certain voting rights in the event of certain extraordinary transactions as
provided by the TBCA, or as otherwise provided by law. There is no provision
for cumulative voting with respect to the election of directors.
All shares of Surviving Corporation Voting Stock will be entitled to share
proportionately in such distributions as the Board of Directors may from time to
time declare from sources legally available therefor.
Upon liquidation or dissolution of the Surviving Corporation, whether
voluntary or involuntary, all shares of Surviving Corporation Common Stock are
entitled to share equally in the assets available for distribution to
shareholders after payment of all prior obligations of the Surviving
Corporation, including all agent and employee compensation plan obligations.
RESTRICTIONS ON TRANSFER OF SHARES
Article Seven of the Articles of Incorporation of the Surviving
Corporation, as amended, provides for certain restrictions on the transfer of
Surviving Corporation Common Stock. Except as otherwise provided therein, the
Articles prohibit a shareholder from selling, assigning, donating, pledging,
encumbering or otherwise disposing of any shares of Surviving Corporation Common
Stock.
The Articles further provide that no shareholder may transfer or encumber,
and no person may acquire, the legal or beneficial ownership of any share of
Surviving Corporation Common Stock now or hereafter owned by him or her if that
transfer, encumbrance or acquisition would cause the S corporation status of the
Surviving Corporation to terminate. Specifically, no transfer may be made to,
and no acquisition may be made by, any person who would cause the Surviving
Corporation to have more than the maximum permitted number of shareholders under
the Code as then in effect or to any person that is not eligible to be a
shareholder of an S corporation under the provisions of the Code. However, the
Articles do permit, under certain circumstances, Surviving Corporation
Shareholders to pledge, mortgage, hypothecate or otherwise encumber his or her
Surviving Corporation Common Stock with the prior written consent of the
executive committee of the Surviving Corporation but subject to such terms,
conditions and restrictions as the executive committee determines to be
appropriate in the exercise of its sole discretion.
In addition, upon the occurrence of certain Operative Events (as defined
below) with respect to a shareholder, such shareholder (or spouse or estate, as
applicable) must tender all of his or her shares to the Surviving Corporation,
and the Surviving Corporation shall have the option, the term of which is 120
days, to purchase all shares of
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Surviving Corporation Common Stock owned by such shareholder. The purchase
price shall be the amount determined by the Surviving Corporation, which it
shall advise the shareholders in writing of at least annually. To facilitate
such purchases, the Surviving Corporation is permitted to obtain life
insurance policies concerning its shareholders. The purchase price for such
purchases by the Surviving Corporation is to be determined at least annually
by the Surviving Corporation and is to be proportionately adjusted for
subsequent changes in the number of issued and outstanding shares, stock
distributions or other increases or decreases in the number of shares
outstanding. The Surviving Corporation may pay the purchase price in full to
such shareholder or may pay 20% of such purchase price in cash and pay the
remainder in four equal annual installments at prime interest rates.
As used in the Articles of Incorporation, an Operative Event shall mean:
(i) any threatened or actual transfer or encumbrance of Surviving Corporation
Common Stock in any manner whatsoever by a shareholder; (ii) the death of a
shareholder; (iii) the termination of the marital relationship of a
shareholder by death or divorce if that shareholder does not succeed to his
or her spouse's community interest in the Surviving Corporation Common Stock
or the entering into of any property settlement arrangement or agreement in
connection therewith, pursuant to which that shareholder's interest in his or
her Surviving Corporation Common Stock is to be diluted, lessened, encumbered
or impaired; (iv) any threatened or actual (a) bankruptcy or insolvency of a
shareholder or (b) institution of legal proceedings because or by reason of
the bankruptcy or insolvency of a shareholder; (v) the termination of the
status of a shareholder as a duly licensed Texas life insurance agent; (vi)
the cessation of a shareholder as a duly authorized agent of the Surviving
Corporation pursuant to a current written agency agreement, except that with
respect to an involuntary termination as a duly authorized agent of the
Surviving Corporation, such termination shall require approval by 80% of the
Board of Directors; (vii) the change of status of a shareholder to a
"non-resident alien" as defined in the Code; or (viii) any threatened or
actual levy by a creditor or claimant upon the shares of Surviving
Corporation Common Stock held by a shareholder or any other seizure or sale
by legal process, if it is determined by legal counsel for the Surviving
Corporation that such levy is made in good faith and based upon a bona fide
claim.
SUBCHAPTER S PROVISIONS
Article Eight of the Articles of Incorporation of the Surviving Corporation
contains certain provisions with regard to the Surviving Corporation's status as
an S corporation. Each shareholder must provide to the Surviving Corporation,
immediately upon the Surviving Corporation's request, such properly signed
consents or other documents as, in the opinion of the Surviving Corporation, may
be necessary or useful to maintain the Surviving Corporation's status as an S
corporation, and each shareholder is obligated to refrain from any actions that
would interfere with the Surviving Corporation's maintenance of its status as an
S corporation. In addition, Article Eight contains provisions that address the
following matters related to the Surviving Corporation's status as an S
corporation.
REVOCATION OF ELECTION. In the event that the shareholders, by the
affirmative vote of at least 80% of the votes that all of the shareholders are
entitled to cast, determine to terminate the Surviving Corporation's status as
an S corporation, each shareholder, if requested, must execute a consent to such
revocation and deliver this consent to the secretary of the Surviving
Corporation within 60 days. In the event of a termination of the Surviving
Corporation's S status, the shareholders and the Surviving Corporation shall
elect, if applicable, to have Section 1362(e)(2) of the Code not apply, as
provided in Section 1362(e)(3) of the Code. Any person who was a shareholder
at any time during the S Short Year (as defined in the Code) or who is a
shareholder on the first day of the C Short Year (as defined in the Code) must
consent to such election.
INADVERTENT TERMINATION OF SUBCHAPTER S ELECTION. In the event of a
termination of the Surviving Corporation's status as an S corporation other than
as described in the immediately preceding paragraph, if the Surviving
Corporation desires that the Surviving Corporation's status as an S corporation
be continued, the Surviving Corporation and all shareholders as of and/or after
the terminating event must use their best efforts to obtain from the IRS a
waiver of the terminating event on the ground of inadvertency. The Surviving
Corporation and the shareholders must take such steps, and make such
adjustments, as may be required by the IRS pursuant to Section 1362(f)(3) and
(4) of the Code. If a shareholder caused the terminating event to occur, he or
she will bear the expense of obtaining the waiver and of making such adjustments
as may be required. If the inadvertent termination is not waived by the IRS and
the Surviving Corporation's S status is permanently terminated, the Surviving
Corporation and the
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shareholders will make the election under Section 1362(e)(3) of the Code
described in the immediately preceding paragraph.
PROVISION IN SHAREHOLDER WILLS. Each shareholder shall include in his or
her will a direction and authorization to his or her executor in substantially
the following form:
My Executor is hereby directed and authorized to hold stock of an
S Corporation, as defined in the Code (hereinafter "S Stock"), to make
an election to have any corporation treated as an S Corporation, to
enter into agreements with other shareholders or with the corporation
relating to a transfer (including, without limitation, a sale,
assignment, exchange, gift, donation, mortgage, hypothecation, or
other encumbrance or other disposition) (a "Transfer") of S Stock or
the management of the S Corporation, and to allocate amounts received
and the tax on undistributed income between income and principal.
During the administration of my estate, my Executor may allocate the
tax deductions and credits arising from ownership of S Stock between
income and principal. In making any such allocations, my Executor
shall consider that the beneficiary is to have enjoyment of the
property at least equal to that ordinarily associated with an income
interest and in all events shall provide the required beneficial
enjoyment to the beneficiary until such time as the S Stock is
distributed to him or her.
Any beneficiary of my estate who receives stock in an S
Corporation as part of his or her distribution shall, prior to such
distribution, enter into a written agreement with said S Corporation
(i) to consent to any election to qualify the S Corporation as such;
(ii) to do nothing to interfere with the S Corporation's maintenance
of its status as such; (iii) to not Transfer the S Stock to any
transferee who does not agree to execute a similar consent; (iv) to
not Transfer the S Stock in such manner as will cause the S
Corporation to lose its status as an S Corporation under the then
applicable federal and state income tax statutes and regulations; and
(v) if S status is inadvertently terminated, to join in any endeavor
to obtain a waiver of the terminating event on the grounds of
inadvertency from the Internal Revenue Service if the S Corporation or
any shareholder desires that the S status should continue.
Any S Stock distributed to a beneficiary shall bear an
appropriate legend on the stock certificate stating that the Transfer
of the stock is subject to and restricted to the extent set forth in
the subparagraph above.
DISTRIBUTIONS TO PAY TAX LIABILITIES. With respect to all taxable periods
of the Surviving Corporation during which it is an S Corporation, the Surviving
Corporation shall make the distributions described in this paragraph in a timely
manner to allow the tax (including, without limitation, estimated tax payments)
attributable to the income passed through the Surviving Corporation to the
shareholders to be paid when due. To satisfy this requirement, the Surviving
Corporation shall make distributions in an amount equal to the excess of (i)
the sum of the products of (A) the Surviving Corporation's negative taxable
income attributable to such shareholders during each of such taxable periods
multiplied by (B) the sum of the maximum federal individual income tax rates
in effect for each of such taxable periods (without regard to exemptions or
phase-outs of lower tax rates but with consideration of the deductibility of
state taxes for federal income tax purposes), over (ii) the sum of the
products of (A) the Surviving Corporation's positive taxable income
attributable to such shareholders during each of such taxable periods
multiplied by (B) the sum of the maximum federal individual income tax rate in
effect for each of such taxable periods (without regard to exemptions or
phase-outs of lower tax rates but with consideration of the deductibility of
state taxes for federal income tax purposes). The Surviving Corporation's
obligation to declare and pay such a distribution to the shareholders in such
an amount is subject to the restrictions governing distributions under the
Texas Business Corporation Act and such other pertinent governmental or
contractual restrictions as are now, or may hereafter become effective. If
the Surviving Corporation does not have sufficient funds available to permit
it lawfully to declare and pay such distribution, the shareholders and the
Surviving Corporation shall take such action, adopt such resolutions, and
cause such certificates and other
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documents to be filed as may be necessary to create sufficient funds to permit
the payment of such distribution, whereupon the Surviving Corporation shall
declare and pay such distribution.
The Articles of Incorporation provide that in no event may the total
distribution made with respect to any outstanding shares of stock of the
Surviving Corporation to differ from the amounts paid with respect to any other
outstanding shares of stock of the Surviving Corporation, and in no event shall
these provisions be construed to limit the ability of the Surviving Corporation
to declare and pay additional distributions to shareholders out of the assets of
the Surviving Corporation legally available for such payment at such time or
times as the Board of Directors may determine.
NONRECOGNITION OF CERTAIN TRANSFERS. The Surviving Corporation will not
recognize any transfers that could disqualify the Surviving Corporation as an S
corporation or that are made in violation of the terms of the Articles of
Incorporation.
LEGENDS ON SHARE CERTIFICATES. The following legend will be imprinted
conspicuously on the face of each certificate representing shares of Stock:
NOTICE IS HEREBY GIVEN THAT THE TRANSFER (INCLUDING, WITHOUT
LIMITATION, THE SALE, ASSIGNMENT, EXCHANGE, GIFT, DONATION, PLEDGE,
MORTGAGE, HYPOTHECATION OR OTHER ENCUMBRANCE OR OTHER DISPOSITION) OF THE
SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO AND
RESTRICTED BY THE PROVISIONS OF THE ARTICLES OF INCORPORATION OF THE
CORPORATION, AND ALL OF THE PROVISIONS OF THE ARTICLES OF INCORPORATION
ARE INCORPORATED BY REFERENCE IN THIS CERTIFICATE, SPECIFICALLY
INCLUDING BUT NOT LIMITED TO THOSE PROVISIONS OF THE ARTICLES OF
INCORPORATION RELATING TO THE CORPORATION'S TAX STATUS AS AN S
CORPORATION.
ELECTION TO CLOSE BOOKS. The Surviving Corporation, in the event the
executive committee of the Board of Directors of the Surviving Corporation so
determines, shall consent to close the books of the Surviving Corporation
pursuant to Section 1377(a)(2) of the Code whenever a shareholder sells all of
his Stock on a day other than the last day of the Surviving Corporation's
fiscal year if all "affected shareholders" (as defined in Section
1377(a)(2)(B) of the Code) shall consent thereto.
BUSINESS COMBINATION PROVISION
The Articles of Incorporation of the Surviving Corporation contain a
business combination provision identical to that of Article Ten of the Articles
of Incorporation of IRA, including the requirement that a "fair price" be paid
under certain circumstances. See "THE PROPOSED MERGER--IRA Charter Business
Combination Provision." This provision may have certain anti-takeover effects,
including making it more difficult for the Surviving Corporation to enter into
transactions with certain interested shareholders without the approval of the
Board of Directors of the Surviving Corporation.
CLASSIFIED BOARD
The Bylaws of the Surviving Corporation, like the Bylaws of IRA, provide
for a Board of Directors divided into three classes of directors serving
staggered three-year terms. The classification of directors has the effect of
making it more difficult for shareholders to change the composition of the Board
of Directors of the Surviving Corporation in a short period of time. At least
two annual meetings of shareholders, instead of one, will generally be required
to effect a change in a majority of the Board of Directors of the Surviving
Corporation.
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INDEPENDENT AUDITORS
The consolidated financial statements of IRA as of September 30, 1997 and
1996 and for the three years in the period ended September 30, 1997, 1996 and
1995, included in the IRA 10-K included and incorporated by reference in this
Proxy Statement, have been audited by Brantley, Frazier, Rogers & Company, P.C.,
independent auditors.
The balance sheet of First Command as of May 31, 1998, included herein,
has been audited by Ernst & Young LLP, independent auditors.
Representatives of Ernst & Young LLP, principal independent accountants
to IRA, will be present at the Special Meeting.
OTHER MATTERS
The IRA Board does not presently know of any matters to be presented for
consideration at the Special Meeting other than matters described in the Notice
of Special Meeting mailed together with this Proxy Statement, but if other
matters are presented, it is the intention of the persons named in the
accompanying proxy to vote on such matters in accordance with their best
judgment. The proxy confers discretionary authority to vote only with respect
to matters that the IRA Board did not know, within a reasonable time before the
mailing of these materials, were to be presented at the Special Meeting.
The Company has enclosed with this Proxy Statement as Annex D its Annual
Report on Form 10-K for the fiscal year ended September 30, 1997 and its
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 1998,
which are incorporated herein by reference.
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AVAILABLE INFORMATION
IRA is subject to the informational requirements of the Exchange Act, and
in accordance therewith files reports, proxy statements and other information
with the Commission. First Command is not subject to the informational
requirements of the Exchange Act. IRA and First Command have filed with the
Commission the Schedule 13E-3. As permitted by the rules and regulations of the
Commission, this Proxy Statement omits certain exhibits contained in the
Schedule 13E-3. Copies of the Schedule 13E-3 and the exhibits thereto, as well
as such reports, proxy statements and other information, can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
following Regional Offices of the Commission: Seven World Trade Center, 13th
Floor, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549. The Commission also maintains a Web Site
at http://www.sec.gov which contains reports and other information regarding
registrants that file electronically with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by IRA (File No. 000-
22021) pursuant to the Exchange Act are incorporated by reference in this Proxy
Statement:
(1) Quarterly Report on Form 10-Q for the period ended June 30, 1998,
filed on August 14, 1998, and as amended on September 9, 1998.
(2) Quarterly Report on Form 10-Q for the period ended March 31, 1998,
filed on May 12, 1998.
(3) Quarterly Report on Form 10-Q for the period ended December 31, 1997,
filed on February 17, 1998.
(4) Annual Report on Form 10-K for the fiscal year ended September 30,
1997, filed on December 29, 1997.
(5) Current Report on Form 8-K, filed on May 1, 1998.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Proxy Statement to the extent that a statement contained
herein or in any other subsequently filed document, which also is or is deemed
to be incorporated by reference herein, modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Proxy Statement.
THIS PROXY STATEMENT INCORPORATES BY REFERENCE DOCUMENTS RELATING TO THE
COMPANY THAT ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS
(NOT INCLUDING EXHIBITS TO SUCH DOCUMENTS OTHER THAN EXHIBITS SPECIFICALLY
INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS) ARE AVAILABLE WITHOUT CHARGE TO
ANY PERSON, INCLUDING ANY BENEFICIAL OWNER OF CLASS A STOCK OR CLASS B STOCK, TO
WHOM THIS PROXY STATEMENT IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF SUCH
PERSON. REQUESTS FOR SUCH DOCUMENTS RELATING TO IRA SHOULD BE DIRECTED TO
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC., 4100 SOUTH HULEN STREET,
FORT WORTH, TEXAS 76109, ATTENTION: INVESTOR RELATIONS, TELEPHONE NUMBER (817)
731-8621. TO ASSURE TIMELY DELIVERY OF SUCH DOCUMENTS, REQUESTS FOR SUCH
DOCUMENTS SHOULD BE MADE NO LATER THAN _________________ , 1998.
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By Order of the Board of Directors,
/s/ Sandra T. Allen
Sandra T. Allen
Secretary
Fort Worth, Texas
_____________, 1998
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FIRST COMMAND FINANCIAL CORPORATION
INDEX TO BALANCE SHEETS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of Independent Auditors . . . . . . . . . . . . . . . . . . . . . . . F-2
Balance Sheet as of May 31, 1998 . . . . . . . . . . . . . . . . . . . . . . F-3
Notes to Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . F-4
Balance Sheet as of June 30, 1998 (unaudited). . . . . . . . . . . . . . . . F-6
Notes to Balance Sheet (unaudited) . . . . . . . . . . . . . . . . . . . . . F-7
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Shareholders and Board of Directors
First Command Financial Corporation
We have audited the balance sheet of First Command Financial Corporation as of
May 31, 1998. This balance sheet is the responsibility of the Company's
management. Our responsibility is to express an opinion on this balance sheet
based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the balance sheet is free of material misstatement. An
audit also includes examining, on a test basis, evidence supporting the amounts
and significant estimates made by management, as well as evaluating the overall
balance sheet presentation. We believe that our audit provides a reasonable
basis for our opinion.
In our opinion, the balance sheet referred to above presents fairly, in all
material respects, the financial position of First Command Financial Corporation
at May 31, 1998, in conformity with generally accepted accounting principles.
/s/ Ernst & Young LLP
Dallas, Texas
June 18, 1998
F-2
<PAGE>
FIRST COMMAND FINANCIAL CORPORATION
BALANCE SHEET
MAY 31, 1998
<TABLE>
<S> <C>
Assets:
Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 893
Construction in progress . . . . . . . . . . . . . . . . . 12,310
-------
Total assets. . . . . . . . . . . . . . . . . . . . . $13,203
-------
-------
Liabilities:
Advance payable. . . . . . . . . . . . . . . . . . . . . . $12,310
-------
Total liabilities . . . . . . . . . . . . . . . . . . $12,310
Shareholders' equity:
Common stock (1,000 shares authorized, 1,000 shares
outstanding at $0.01 par value). . . . . . . . . . . 10
Paid in capital. . . . . . . . . . . . . . . . . . . . . . 883
-------
Shareholders' equity . . . . . . . . . . . . . . . . 893
-------
Total liabilities and shareholders' equity . . . $13,203
-------
-------
</TABLE>
See notes to balance sheet.
F-3
<PAGE>
NOTES TO BALANCE SHEET
MAY 31, 1998
NOTE 1 - SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND OPERATION
First Command Financial Corporation ("FCFC") was chartered in Texas in April
1998. FCFC was incorporated for the purpose of entering into agreements for the
lease of real estate, the construction of a parking garage on that leased real
estate, the financing of said construction and the leasing of space in the
completed garage.
Four individuals, who are members of the executive committee of Independent
Research Agency for Life Insurance, Inc. ("IRA, Inc.") are the shareholders of
FCFC.
FEDERAL INCOME TAXES
In order to qualify for the flow-through benefits of an S-Corporation, FCFC must
have, among other things, only one class of stock and less than 75 shareholders.
Since FCFC meets these requirements, FCFC shareholders elected to be taxed as a
S-Corporation.
NOTE 2 - ADVANCE PAYABLE
At May 31, 1998 FCFC has received $12,310 in advances from IRA, Inc. This
advance will become subject to the IRA, Inc. borrowing agreement as discussed in
Note 3 below.
NOTE 3 - SUBSEQUENT EVENTS AND OTHER AGREEMENTS
On June 1, 1998, FCFC entered into an agreement with IRA, Inc. to lease land
from IRA, Inc. on which FCFC will construct an 801 space parking garage. The
agreement allows FCFC to lease the property for $1 each year from the date of
the agreement for the next 99 years.
On June 1, 1998, FCFC entered into a borrowing agreement with IRA, Inc. for
$8.5 million. Under the terms of the agreement, FCFC may borrow up to $7 million
during the next 18 months at an interest rate of 7%. Interest will accrue
monthly, and up to $1.5 million may be added to the outstanding balance of the
loan during the construction period. At the end of the construction period, the
total outstanding debt will be repaid through quarterly payments over the
following fifteen years.
On May 4, 1998, FCFC entered into an agreement with a third party construction
company to act as a general contractor for the purpose of constructing the
parking garage. The construction is expected to be completed in the summer of
1999 with the total costs approximating $6 million for the garage, plus
interest.
On June 1, 1998, FCFC entered into an agreement with IRA, Inc. for the leasing
of the to-be constructed parking garage. Under the terms of the agreement, IRA,
Inc. will lease the garage for $51,250 per month, plus operating expenses, for
fifteen years after the completion of the garage.
On June 1, 1998, FCFC entered into a management agreement with IRA, Inc. for
IRA, Inc. to provide FCFC specified administrative services, facilities,
equipment and supplies necessary to operate the business. FCFC is to pay IRA,
Inc. $2,030 per month in management fees. The agreement term ends May 31, 1999,
but automatically renews itself from year to year unless otherwise terminated as
provided in the agreement.
F-4
<PAGE>
On June 1, 1998, FCFC entered into an administrative agreement with IRA, Inc. to
manage the IRA building as specified in the agreement. IRA, Inc. is to pay
$2,080 per month to FCFC for these services. The agreement term ends May 31,
1999, but automatically renews itself from year to year unless otherwise
terminated as provided in the agreement.
NOTE 4 - IMPACT OF YEAR 2000
The Year 2000 Issue is the result of computer programs being written using two
digits rather than four to define the applicable year. Any of the FCFC's
computer programs that have time-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions or engage in similar
normal business activities.
FCFC, through its management agreement with IRA, is primarily reliant upon IRA
to utilize and appropriately modify its software so that the FCFC's data
processing will function properly with respect to dates in the Year 2000 and
thereafter. However, if such modifications are not successfully made, or are not
completed timely, the Year 2000 Issue could adversely impact the operations of
FCFC. IRA has formed a committee to review these areas and is studying the
impact of the new millennium on all areas of IRA. In addition, IRA plans to
engage a third party specialist to ensure its review and corrective actions are
appropriate.
F-5
<PAGE>
FIRST COMMAND FINANCIAL CORPORATION
BALANCE SHEET
JUNE 30, 1998
(unaudited)
<TABLE>
<S> <C>
Assets:
Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,000
Construction in progress . . . . . . . . . . . . . . . . . 26,770
Other assets . . . . . . . . . . . . . . . . . . . . . . . 6,495
-------
Total assets. . . . . . . . . . . . . . . . . . . . . $34,265
-------
-------
Liabilities:
Advance payable. . . . . . . . . . . . . . . . . . . . . . $41,011
-------
Total liabilities . . . . . . . . . . . . . . . . . . $41,011
Shareholders' equity:
Common stock (1,000 shares authorized, 1,000 shares
outstanding at $0.01 par value). . . . . . . . . . . 10
Paid in capital. . . . . . . . . . . . . . . . . . . . . . 990
Current year earnings (loss) . . . . . . . . . . . . . . . (7,746)
-------
Shareholders' equity . . . . . . . . . . . . . . . . (6,746)
-------
Total liabilities and shareholders' equity . . . $34,265
-------
-------
</TABLE>
See notes to balance sheet.
F-6
<PAGE>
NOTES TO BALANCE SHEET
JUNE 30, 1998
(unaudited)
NOTE 1 - SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND OPERATION
First Command Financial Corporation ("FCFC") was chartered in Texas in April
1998. FCFC was incorporated for the purpose of entering into agreements for the
lease of real estate, the construction of a parking garage on that leased real
estate, the financing of said construction and the leasing of space in the
completed garage.
Four individuals, who are members of the executive committee of Independent
Research Agency for Life Insurance, Inc. ("IRA, Inc.") are the shareholders of
FCFC.
FEDERAL INCOME TAXES
In order to qualify for the flow-through benefits of an S-Corporation, FCFC must
have, among other things, only one class of stock and less than 75 shareholders.
Since FCFC meets these requirements, FCFC shareholders elected to be taxed as a
S-Corporation.
NOTE 2 - ADVANCE PAYABLE
At June 30, 1998 FCFC has received $41,011 in advances from IRA, Inc. This
advance will become subject to the IRA, Inc. borrowing agreement as discussed in
Note 3 below.
NOTE 3 - OTHER AGREEMENTS
On June 1, 1998, FCFC entered into an agreement with IRA, Inc. to lease land
from IRA, Inc. on which FCFC will construct an 801 space parking garage. The
agreement allows FCFC to lease the property for $1 each year from the date of
the agreement for the next 99 years.
On June 1, 1998, FCFC entered into a borrowing agreement with IRA, Inc. for
$8.5 million. Under the terms of the agreement, FCFC may borrow up to $7 million
during the next 18 months at an interest rate of 7%. Interest will accrue
monthly, and up to $1.5 million may be added to the outstanding balance of the
loan during the construction period. At the end of the construction period, the
total outstanding debt will be repaid through quarterly payments over the
following fifteen years.
On May 4, 1998, FCFC entered into an agreement with a third party construction
company to act as a general contractor for the purpose of constructing the
parking garage. The construction is expected to be completed in the summer of
1999 with the total costs approximating $6 million for the garage, plus
interest.
On June 1, 1998, FCFC entered into an agreement with IRA, Inc. for the leasing
of the to-be constructed parking garage. Under the terms of the agreement, IRA,
Inc. will lease the garage for $51,250 per month, plus operating expenses, for
fifteen years after the completion of the garage.
On June 1, 1998, FCFC entered into a management agreement with IRA, Inc. for
IRA, Inc. to provide FCFC specified administrative services, facilities,
equipment and supplies necessary to operate the business. FCFC is to pay IRA,
Inc. $2,030 per month in management fees. The agreement term ends May 31, 1999,
but automatically renews itself from year to year unless otherwise terminated as
provided in the agreement.
F-7
<PAGE>
On June 1, 1998, FCFC entered into an administrative agreement with IRA, Inc. to
manage the IRA building as specified in the agreement. IRA, Inc. is to pay
$2,080 per month to FCFC for these services. The agreement term ends May 31,
1999, but automatically renews itself from year to year unless otherwise
terminated as provided in the agreement.
NOTE 4 - IMPACT OF YEAR 2000
The Year 2000 Issue is the result of computer programs being written using two
digits rather than four to define the applicable year. Any of the FCFC's
computer programs that have time-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions or engage in similar
normal business activities.
FCFC, through its management agreement with IRA, is primarily reliant upon IRA
to utilize and appropriately modify its software so that the FCFC's data
processing will function properly with respect to dates in the Year 2000 and
thereafter. However, if such modifications are not successfully made, or are not
completed timely, the Year 2000 Issue could adversely impact the operations of
FCFC. IRA has formed a committee to review these areas and is studying the
impact of the new millennium on all areas of IRA. In addition, IRA plans to
engage a third party specialist to ensure its review and corrective actions are
appropriate.
F-8
<PAGE>
ANNEX A
AGREEMENT AND PLAN OF MERGER
AMONG
FIRST COMMAND FINANCIAL CORPORATION
AND
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
A-1
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is dated as of July 1,
1998, and is by and between Independent Research Agency for Life Insurance,
Inc., a Texas corporation ("IRA"), and First Command Financial Corporation, a
Texas corporation ("First Command").
R E C I T A L S
The Boards of Directors of IRA and First Command have approved the merger
of IRA with and into First Command (the "Merger") upon the terms and subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises, the mutual promises
and covenants herein contained, and for other good and valuable consideration,
the full receipt and sufficiency of which are hereby expressly acknowledged by
the parties hereto, it is hereby agreed as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. At the Effective Time (as defined in Section 1.2 hereof),
and subject to and upon the terms and conditions of this Agreement and the
applicable provisions of the Texas Business Corporation Act (the "TBCA"), IRA
shall be merged with and into First Command, the separate existence of IRA shall
cease, and First Command shall be the surviving corporation (sometimes called
the "Surviving Corporation") and shall continue its corporate existence under
the laws of the State of Texas. The name of the Surviving Corporation shall be
"Independent Research Agency for Life Insurance, Inc."
1.2 EFFECTIVE TIME. The Merger shall be effected by the filing of the
Articles of Merger, in the form required by the TBCA and otherwise conforming to
the requirements of the TBCA, with the Secretary of State of the State of Texas.
The Merger shall become effective at 12:01 a.m. on October 1, 1998 (the
"Effective Time").
1.3 EFFECT OF THE MERGER. At the Effective Time, First Command, as the
surviving corporation in the Merger, shall possess all of the rights,
privileges, immunities, powers and franchises of each of First Command and IRA;
all of the property, real, personal and mixed, including subscription of shares,
choses in action and every other asset of each of First Command and IRA shall
vest in the Surviving
<PAGE>
Corporation without further act or deed; the Surviving Corporation shall assume
and be liable for all the liabilities and obligations of each of First Command
and IRA; and all other effects presumed in a merger including, without
limitation, those set forth in Section 5.06 of the TBCA, shall result from the
Merger.
ARTICLE II
CONVERSION AND EXCHANGE OF SHARES
2.1 CONVERSION OF SHARES. At the Effective Time, by virtue of the Merger
and without any action on the part of First Command, IRA, or the holders of any
of the following securities:
2.1.1 Each share of Class A Voting Common Stock, par value $0.10 per
share, of IRA ("Class A Stock"), issued and outstanding immediately prior
to the Effective Time (other than shares of Class A Stock to be cancelled
pursuant to Section 2.1.4 below and other than the Dissenting Shares, as
defined in Section 2.2 below) shall be converted into five validly issued,
fully paid and nonassessable shares of Voting Common Stock, par value $0.01
per share ("Surviving Corporation Voting Stock"), of the Surviving
Corporation (the "Class A Consideration"). From and after the Effective
Time, each outstanding certificate that represented shares of Class A Stock
shall evidence ownership of and represent the number of shares of Surviving
Corporation Voting Stock into which such shares of Class A Stock shall have
been converted.
2.1.2 Each share of Class B Non-voting Common Stock, par value $0.02
per share, of IRA ("Class B Stock") that is held by a holder of Class B
Stock (a "Class B Shareholder") that is not a holder of Class A Stock
issued and outstanding immediately prior to the Effective Time (other than
the Dissenting Shares, as defined in Section 2.2 below) shall be converted
into the right to receive $28.24 in cash, without interest thereon ("Class
B Per Share Amount"), payable to the holders thereof upon surrender of the
certificates representing such shares.
2.1.3 Each share of Class B Stock that is held by a Class B
Shareholder that is also a holder of Class A Stock (a "Class A/B
Shareholder") issued and outstanding immediately prior to the Effective
Time (other than the Dissenting Shares, as defined in Section 2.2 below)
shall be converted into, at the election of the Class A/B Shareholder,
either (i) the right to receive one share of Nonvoting Common Stock, par
value $0.01 per share ("Surviving Corporation Nonvoting Stock"), of the
Surviving Corporation (the "Class B Nonvoting Stock Consideration") or (ii)
the Class B Per Share Amount (together with the Class
- 2 -
<PAGE>
B Nonvoting Stock Consideration, the "Class B Consideration"), payable to
the holders thereof upon surrender of the certificates representing such
shares; provided, however, that a Class A/B Shareholder may not elect to
receive a combination of the Class B Nonvoting Stock Consideration and the
Class B Cash Consideration with respect to shares of Class A Stock held by
such Class A/B Shareholder. The Class A Stock and Class B Stock are
hereafter sometimes collectively referred to as "IRA Common Stock," and the
Class A Consideration and the Class B Consideration are hereafter sometimes
collectively referred to as "Merger Consideration."
2.1.4 Each share of Class A Stock or Class B Stock held in treasury
by IRA immediately prior to the Effective Time shall be cancelled and
extinguished without any conversion thereof, and no payment shall be made
in respect thereof.
2.1.5 Each share of common stock, par value $0.01 per share, of First
Command ("First Command Common Stock"), issued and outstanding immediately
prior to the Effective Time (other than shares of First Command Common
Stock to be cancelled pursuant to Section 2.1.6 below and other than the
Dissenting Shares, as defined in Section 2.2 below) shall be converted into
0.04 validly issued, fully paid and nonassessable shares of Surviving
Corporation Nonvoting Stock (the "First Command Consideration"). From and
after the Effective Time, each outstanding certificate that represented
shares of First Command Common Stock shall evidence ownership of and
represent the number of shares of Surviving Corporation Nonvoting Stock
into which such shares of First Command Common Stock shall have been
converted.
2.1.6 Each share of First Command Common Stock held in treasury by
First Command immediately prior to the Effective Time shall be cancelled
and extinguished without any conversion thereof, and no payment shall be
made in respect thereof.
2.2 DISSENTING SHARES. To the extent required by applicable provisions of
the TBCA, shares of IRA Common Stock and shares of First Command Common Stock
that are issued and outstanding immediately prior to the Effective Time and are
held by holders of IRA Common Stock or holders of First Command Common Stock who
comply with all the provisions of the TBCA concerning the right of holders of
IRA Common Stock or holders of First Command Common Stock, as the case may be,
to dissent from the Merger and demand payment of the fair value of their shares
of IRA Common Stock or First Command Common Stock, as the case may be
("Dissenting Shareholders"), shall not be converted into the right to receive
the Merger Consideration but shall instead be converted into the right to
receive such consideration as may be determined to be due such Dissenting
Shareholders pursuant
- 3 -
<PAGE>
to the laws of the State of Texas (such shares being the "Dissenting Shares");
provided, however, if any Dissenting Shareholder fails to establish and perfect
his dissenter's rights as provided by applicable law, then such Dissenting
Shareholder shall forfeit all dissenter's rights including the right to obtain
payment of the fair value of the shares held by him, and such Dissenting
Shareholder shall be entitled to receive, as of the Effective Time, only the
Merger Consideration for each share of IRA Common Stock or share First Command
Common Stock, as the case may be, held by him, payable upon surrender of the
certificate representing such shares and such shares shall no longer be
Dissenting Shares. The Surviving Corporation shall comply with all of the
obligations pursuant to the TBCA of a surviving corporation after the
effectiveness of a merger with respect to dissenting shareholders, and the
Surviving Corporation shall direct all negotiations and proceedings with respect
to demands for payment of fair value under Texas law.
2.3 ELECTION PROCEDURES.
2.3.1 Subject to allocation, conversion and proration in accordance
with the provisions of this Section 2.3, each Class A/B Shareholder shall
be entitled, with respect to each share of Class B Stock held by such Class
A/B Shareholder immediately prior to the Effective Time, (a) to elect to
receive in respect of each such share of Class B Stock (i) the Class B
Nonvoting Stock Consideration (a "Stock Election") or (ii) the Class B Cash
Consideration (a "Cash Election") or (b) to indicate that such recordholder
has no preference as to the receipt of Cash Consideration or Stock
Consideration for such Class B Stock (a "Non-Election"). A Class A/B
Shareholder may not make a combination of a Stock Election and a Cash
Election with respect to shares of Class A Stock held by such Class A/B
Shareholder. Class B Stock in respect of which a Non-Election is made
(including shares in respect of which such an election is deemed to have
been made pursuant to this Agreement (collectively, "Non-Election Shares"))
shall be deemed Class B Stock in respect of which Stock Elections have been
made. Class B Stock in respect of which a Stock Election has been made,
together with Class B Stock in respect of which a Stock Election is deemed
to be made, is hereafter referred to as "Stock Election Shares," and Class
B Stock in respect of which a Cash Election has been made is hereafter
referred to as "Cash Election Shares."
2.3.2 Elections pursuant to Section 2.3.1 shall be made on a form and
with such other provisions to be reasonably agreed upon by IRA (a "Form of
Election"), to be provided to holders of record of Class B Stock, together
with appropriate transmittal materials, at the time of mailing to holders
of record of IRA Common Stock of the Proxy Statement (as defined in Section
4.4) in connection with the stockholders meeting referred to in Section
4.3. Elections shall be made by mailing to First Command Bank (the "Paying
Agent") a duly
- 4 -
<PAGE>
completed Form of Election. To be effective, a Form of Election must be (a)
properly completed, signed and submitted to the Paying Agent at its
designated office, by 5:00 p.m. Central Daylight time, on
_____________________, 1998 (the "Election Deadline"). The Company shall
use its best efforts, as promptly as practicable, to make a Form of
Election available to all persons who become holders of record of Class B
Stock between the date of mailing described in the first sentence of this
Section 2.3.2 and the Election Deadline. Neither IRA nor the Paying Agent
will be under any obligation to notify any person of any defect in a Form
of Election submitted to the Paying Agent. A holder of Class B Stock that
does not submit an effective Form of Election prior to the Election
Deadline shall be deemed to have made a Non-Election.
2.3.3 An election may be revoked or amended, but only by written
notice received by the Paying Agent prior to the Election Deadline. Upon
any such revocation, unless a duly completed Form of Election is thereafter
submitted in accordance with paragraph (b)(ii), such Shares shall be
Non-Election Shares.
2.3.4 All Cash Election Shares shall be converted into the right to
receive the Class B Cash Consideration, and all Stock Election Shares shall
be converted into the right to receive the Class B Nonvoting Stock
Consideration.
2.4 PAYMENT FOR SHARES; STOCK TRANSFER BOOKS.
2.4.1 On the first business day following the Effective Time, the
Surviving Corporation shall deposit in trust with the Paying Agent, the
following amounts and forms of Merger Consideration required for conversion
at the Effective Time of the Class A Stock and Class B Stock (such deposit
being the "Payment Fund"): (i) the number of shares of Surviving
Corporation Voting Stock equal to the number of shares of Class A Stock
issued and outstanding immediately prior to the Effective Time multiplied
by five; (ii) the funds equal to the Class B Per Share Amount times the
aggregate number of shares of Class B Stock issued and outstanding
immediately prior to the Effective Time held by Class B Shareholders who
are not Class A/B Shareholders; (iii) the number of shares of Surviving
Corporation Nonvoting Stock equal to the number of Stock Election Shares
issued and outstanding immediately prior to the Effective Time; (iv) the
funds equal to the Class B Per Share Amount times the aggregate number of
Cash Election Shares issued and outstanding immediately prior to the
Effective Time; and (v) the number of shares of Surviving Corporation
Nonvoting Stock equal to the number of shares of First Command Common Stock
issued and outstanding immediately prior to the Effective Time multiplied
by 0.04. The Paying Agent shall, pursuant to irrevocable instructions,
make the payments provided for in Section 2.1 out of the Payment Fund.
Pending such payments, the Paying Agent shall, as directed
- 5 -
<PAGE>
by the Surviving Corporation, invest cash portions of the cash portion of
the Payment Fund in short-term obligations of, or obligations fully
guaranteed by, the United States of America, or any agency of the United
States of America. Any earnings on the investment of the Payment Fund
shall be paid to the Surviving Corporation as and when requested by the
Surviving Corporation. If, at any time after the Effective Time a
Dissenting Shareholder ceases to be a Dissenting Shareholder by virtue of
failing to perfect dissenter's rights, and (i) such Dissenting Shareholder
is not a Class A/B Shareholder and holds Class B Stock or (ii) such
Dissenting Shareholder is a Class A/B Shareholder and has made a Cash
Election with respect the Class B Stock, upon such occurrence the Surviving
Corporation shall promptly deposit to the Payment Fund an amount of Merger
Consideration in cash required for the conversion of such Class B Stock at
the Effective Time.
2.4.2 Promptly after the Effective Time, the Paying Agent shall mail
and otherwise make available to each record holder who held at the
Effective Time an outstanding certificate or certificates that represented
shares of Class A Stock, Class B Stock and First Command Common Stock (the
"Certificates") a form of letter of transmittal and instructions for its
use in effecting the surrender of the Certificates for payment. Upon
surrender to the Paying Agent of a Certificate or Certificates, together
with a duly executed letter of transmittal, the holder of such Certificate
shall be entitled to receive (after taking into account all shares of
Class A Stock then held of record by such holder) in exchange (i) in the
case of a holder of Class A Stock, a certificate evidencing that number of
shares of Surviving Corporation Voting Stock that such holder has the right
to receive in respect of the shares of Class A Stock formerly evidenced by
such Certificate; (ii) in the case of a holder of Class B Stock that is not
a Class A/B Shareholder, Class B Cash Consideration in an amount equal to
the product of the number of shares of Class B Stock represented by such
Certificate multiplied by the Class B Per Share Amount; (iii) in the case
of a Class A/B Shareholder, with respect to the Class B Stock held by such
Class A/B Shareholder, (A) a certificate evidencing that number of shares
of Surviving Corporation Nonvoting Stock that such holder has the right to
receive in respect of the Stock Election Shares formerly evidenced by such
Certificate or (B) Class B Cash Consideration in an amount equal to the
product of the number of Cash Election Shares represented by such
Certificate multiplied by the Class B Per Share Amount; and (iv) in the
case of a holder of First Command Common Stock, a certificate evidencing
that number of shares of Surviving Corporation Nonvoting Stock that such
holder has the right to receive in respect of the shares of First Command
Common Stock formerly evidence by such Certificate. Thereafter, such
Certificates shall be cancelled. No interest will be paid or accrue on the
Merger Consideration payable in cash upon the surrender of the
Certificates. If payment is to be made to a person
- 6 -
<PAGE>
other than the person in whose name the surrendered Certificate is
registered, the Certificate must be properly endorsed or otherwise in
proper form for transfer and the person requesting such payment must agree
to pay any applicable transfer or other taxes or establish to the
satisfaction of the Paying Agent and the Surviving Corporation that such
tax has been paid or is not applicable. The Paying Agent shall pay the
Merger Consideration attributable to a Certificate which has been lost or
destroyed upon receipt of satisfactory evidence of ownership of the shares
of IRA Common Stock or First Command Common Stock and of appropriate
indemnification. After the Effective Time, until surrendered in accordance
with these provisions, each Certificate (other than Certificates
representing Dissenting Shares) shall represent only the right to receive
the Merger Consideration as set forth in this Agreement.
2.4.3 After the Effective Time, there shall be no transfers on the
stock transfer books of the Surviving Corporation of the shares of IRA
Common Stock or First Command Common Stock that were outstanding
immediately prior to the Effective Time. Certificates presented to the
Surviving Corporation after the Effective Time shall be cancelled.
2.4.4 Any portion of the Payment Fund that remains unclaimed by the
shareholders of IRA for six months after the Effective Time shall be repaid
to the Surviving Corporation, upon demand, and any shareholders of IRA who
have not complied with the herein provisions shall look as a general
creditor only to the Surviving Corporation for payment of their claims for
the Merger Consideration. Notwithstanding the foregoing, the Surviving
Corporation shall not be liable to a holder of shares of IRA Common Stock
or First Command Common Stock for any amounts delivered to a public
official pursuant to any applicable abandoned property, escheat or similar
laws.
ARTICLE III
ARTICLES OF INCORPORATION;
BYLAWS; DIRECTORS AND OFFICERS
3.1 ARTICLES OF INCORPORATION. From and after the Effective Time, the
Articles of Incorporation of First Command, as in effect immediately prior to
the Effective Time, shall be and remain the Articles of Incorporation of the
Surviving Corporation until thereafter amended in accordance with the provisions
thereof or Texas law, provided that Article One of such Articles of
Incorporation shall be amended in its entirety to read as follows: "The name of
the Corporation is "Independent Research Agency for Life Insurance, Inc."
- 7 -
<PAGE>
3.2 BYLAWS. From and after the Effective Time, the Bylaws of First
Command, as in effect immediately prior to the Effective Time, shall be and
remain the Bylaws of the Surviving Corporation until thereafter amended in
accordance with the provisions thereof or Texas law.
3.2 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. From and after
the Effective Time, the directors of IRA serving immediately prior to the
Effective Time shall become the directors of the Surviving Corporation, each
such director to hold office, subject to the applicable provisions of the
Articles of Incorporation and Bylaws of the Surviving Corporation, until his
successor shall be duly elected or appointed and qualified. Pursuant to Section
3:6 of the Bylaws of the Surviving Corporation, the directors shall be divided
into the following classes and shall accordingly serve the term designated in
Section 3:6 of the Bylaws of the Surviving Corporation:
Class Director
----- --------
Class I Hal N. Craig
Howard M. Crump
Jerry D. Gray
James J. Ellis
Class II Logan Dickinson
Naomi K. Payne
Lamar C. Smith
Robert F. Watson
Class III Donaldson D. Frizzell
James N. Lanier
Carroll H. Payne II
David P. Thoreson
From and after the Effective Time, the officers of IRA serving immediately
prior to the Effective Time shall, subject to the applicable provisions of the
Articles of Incorporation and Bylaws of the Surviving Corporation, become the
officers of the Surviving Corporation until their respective successors shall be
duly elected or appointed and qualified.
- 8 -
<PAGE>
ARTICLE IV
CERTAIN OBLIGATIONS OF THE PARTIES
IRA covenants and agrees with First Command, and First Command covenants
and agrees with IRA, that between the date of this Agreement and the Closing
Date:
4.1 FULL ACCESS. IRA shall, upon reasonable request, afford to First
Command and its affiliates, counsel, accountants and other authorized
representatives full access during normal business hours to the properties,
books and records of IRA in order that First Command may have the opportunity to
make such reasonable investigations as it shall desire to make of the affairs of
IRA, and IRA will cause its officers and employees to furnish such additional
financial and operating data and other information as First Command shall from
time to time reasonably request. First Command shall, upon reasonable request,
provide IRA, its counsel, accountants and other authorized representatives with
such information concerning First Command as may be reasonably necessary for IRA
to ascertain the accuracy and completeness of the information supplied by First
Command for inclusion in the required proxy statement (or any amendment or
supplement to such materials). IRA shall, upon reasonable request, provide
First Command, its counsel, accountants and other authorized representatives
with such information concerning IRA as may be reasonably necessary for First
Command to ascertain the accuracy and completeness of the information supplied
by IRA for inclusion in the required Rule 13e-3 Transaction Statement on
Schedule 13E-3 (or any amendment thereto) (the "Schedule 13E-3").
4.2 CONFIDENTIALITY. Except as required by law, First Command and its
affiliates will, and will use its best efforts to cause its counsel, accountants
and other authorized representatives to, hold in strict confidence and not
disclose to others for any reason whatsoever, without the prior written consent
of IRA, any information received by them from IRA in connection with the
transactions contemplated by this Agreement. In the event this Agreement is
terminated, IRA and First Command each agrees to return promptly, if so
requested by the other party, every document furnished to any of them by the
other party or any subsidiary, division, associate or affiliate of such other
party, in connection with the transactions contemplated by this Agreement and
any copies of documents which may have been made and to cause their
representatives and others to whom such documents were furnished promptly to
return such documents and any copies, other than documents filed with the
Securities and Exchange Commission ("SEC") or otherwise publicly available.
4.3 SHAREHOLDERS' MEETING. IRA shall, in accordance with the provisions
of the TBCA and its Articles of Incorporation and Bylaws, cause a special
meeting of its shareholders (the "Shareholders' Meeting") to be duly called and
held as soon as reasonably practicable after the date of this Agreement for the
purpose of approving
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<PAGE>
and adopting this Agreement. Subject to their fiduciary duties as advised by
counsel, the directors of IRA shall recommend approval and adoption of this
Agreement and that recommendation shall be contained in the Definitive Proxy
Statement (defined below).
4.4 PROXY STATEMENT; SCHEDULE 13E-3. IRA and First Command prepare and
file, and each will cooperate with the other in the preparation and filing of,
the Schedule 13E-3 with the SEC with respect to the transactions contemplated by
this Agreement. In connection with the Shareholders' Meeting, IRA will prepare
and file, and First Command will cooperate with IRA in the preparation and
filing of, a preliminary proxy statement relating to the transactions
contemplated by this Agreement (the "Preliminary Proxy Statement") with the SEC
and will use its best efforts to respond to the comments of the SEC and cause
the Definitive Proxy Statement (herein so called) to be mailed to IRA's
shareholders, all as soon as reasonably practicable. IRA shall prepare and file
with the SEC the Definitive Proxy Statement. Each party to this Agreement will
notify the others promptly of the receipt of the comments of the SEC, if any,
and of any request by the SEC for amendments or supplements to the Schedule
13E-3, the Preliminary Proxy Statement or the Definitive Proxy Statement or for
additional information, and will supply the others with copies of all
correspondence between such party or its representatives and the SEC or members
of its staff with respect to the Schedule 13E-3, the Preliminary Proxy
Statement, the Definitive Proxy Statement or the Merger. Whenever any event
occurs which should be set forth in an amendment of, or a supplement to, the
Definitive Proxy Statement, or an amendment to the Schedule 13E-3, IRA and First
Command will promptly notify the other party and will cooperate with each other
in the prompt preparation, filing, and mailing of such amendment of, or
supplement to, Definitive Proxy Statement, or the preparation and filing of such
amendment to the Schedule 13E-3.
4.5 WAIVERS, CONSENTS AND APPROVALS. Each of IRA and First Command will
use its reasonable best efforts to obtain any waivers, consents or approvals
under the terms of any agreement or commitment to which IRA or First Command is
a party that are necessary for the consummation of the Merger. In obtaining
such waivers, consents and approvals, IRA and First Command shall not, without
the consent of the other party hereto, agree to any amendment to or modification
of any such instrument.
4.6 PUBLICITY. IRA and First Command agree to consult with each other in
issuing any press release and with respect to the general content of other
public statements about the transactions contemplated by this Agreement, and
shall not issue any such press release prior to such consultation.
4.7 COOPERATION WITH RESPECT TO FILINGS. IRA shall use its reasonable
best efforts to obtain at the earliest practicable date, and, in any event,
prior to the Closing
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<PAGE>
Date, all approvals, consents, authorizations and waivers as may be required
from governmental and other regulatory agencies and other third parties in
connection with the transactions contemplated by this Agreement which, either
individually or in the aggregate, if not obtained, would have a materially
adverse effect on the financial condition, results of operations or business of
IRA or would prevent consummation of the Merger and the other transactions
contemplated by this Agreement. First Command will, and will cause its
representatives and affiliates to, provide such information and cooperate fully
with IRA in making such applications, filings and other submissions which may be
required or reasonably necessary in order to obtain all approvals, consents,
authorizations and waivers as may be required from governmental and other
regulatory agencies and other third parties in connection with the transactions
contemplated by this Agreement; provided, however, that neither First Command
nor any of its affiliates shall be obligated to execute any guarantees or
undertakings or otherwise incur or assume any liability, other than as a result
of the Merger, in connection with obtaining any such approval, consent,
authorization or waiver. In the event of any action, suit, proceeding or
investigation of the nature specified in Section 5.5 of this Agreement is
commenced, the parties agree to cooperate and use their best efforts to defend
against such actions.
4.8 ACCURACY OF INFORMATION. The written information supplied or to be
supplied by IRA or First Command specifically for inclusion in the Definitive
Proxy Statement, the Schedule 13E-3 and any supplement or amendment to any one
of them, as the case may be, will not contain any untrue statement of a material
fact or omit any material fact necessary in order to make the statements made,
in light of the circumstances under which they are made, not misleading.
4.9 EMPLOYEE BENEFITS.
(a) From and after the Effective Time, the Surviving Corporation shall
honor and be bound by the terms and conditions of each Compensation and Benefit
Plan and each employee or executive benefit plan, program or agreement,
including, without limitation, severance agreements, sponsored or maintained by
IRA, or any subsidiary of IRA, or to which the IRA or any subsidiary of IRA is
party or which has been adopted by the board of directors of the IRA prior to
the date hereof (a "Company Benefit Arrangement"). Nothing in the immediately
preceding sentence shall be construed to limit the right of the Surviving
Corporation, following the Effective Time to amend, modify or terminate any such
Company Benefit Arrangement pursuant to the terms and conditions thereof as in
effect immediately prior to the Effective Time. A "Compensation and Benefit
Plan" shall mean each material bonus, deferred compensation, pension,
retirement, profit-sharing, thrift, savings, employee stock ownership, stock
bonus, stock purchase, restricted stock, stock option, employment, termination,
severance, compensation, medical, health or other plan, agreement, policy or
arrangement that covers employees, directors, former employees or former
directors.
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<PAGE>
(b) Without limiting the generality of the foregoing, from and after the
Effective Time, the Surviving Corporation shall make available to each person
who is an employee of IRA and its subsidiaries immediately prior to the
Effective Time (the "IRA Employees") employee benefit plans and programs which
are either (i) the same as are made available to the employees of IRA, on terms
and conditions generally applicable to the employees of IRA or (ii) no less
favorable to the IRA Employees than the terms and conditions of the Company
Benefit Arrangements in which they were participating immediately prior to the
Effective Time. Notwithstanding the foregoing, in no event shall any employee
receive duplicate benefits with respect to any period of service. To the extent
any employee benefit plan or program in which any IRA Employee participates
after the Effective Time (x) imposes any pre-existing condition limitation, such
condition shall be waived, (y) has a deductible or requires a co-payment by the
IRA Employee that is subject to a maximum out-of-pocket limitation, there shall
be credited against any such deductible or limitation any costs incurred by such
IRA Employee during the comparable period under the terms of the corresponding
Company Benefit Arrangement prior to the Effective Time or (z) imposes a waiting
period, for purposes of eligibility or vesting, the IRA Employees will receive
credit for service with IRA or its subsidiaries prior to the Effective Time.
4.10 TAKEOVER STATUTE. If any Takeover Statute (as defined below) is or
may become applicable to the Merger, each of IRA and First Command and their
respective Board of Directors shall grant such approvals and take such actions
as are necessary so that such transactions may be consummated as promptly as
practicable on the terms contemplated by this Agreement or by the Merger and
otherwise act to eliminate or minimize the effects of such statute or regulation
on such transactions. A "Takeover Statute" shall mean any "fair price,"
"moratorium," "control share acquisition" or other similar anti-takeover statute
or regulation, including, without limitation, Article 13 of the TBCA.
ARTICLE V
CONDITIONS TO FIRST COMMAND'S OBLIGATIONS
The obligations of First Command under this Agreement (to be performed on
or before the Closing Date) shall be subject to the satisfaction, on or before
the Closing Date, of each of the following conditions:
5.1 PERFORMANCE. IRA shall have performed and complied in all material
respects with all agreements, obligations and conditions required by this
Agreement to be performed or complied with by it on or prior to the Closing
Date.
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<PAGE>
5.2 ADOPTION BY IRA SHAREHOLDERS. The holders of (i) two-thirds (2/3) of
the outstanding shares of Class A Stock and Class B Stock, voting as a single
class and (ii) two-thirds (2/3) of the outstanding shares of Class A Stock and
Class B Stock, each voting separately as a class, that are eligible to vote at
the Shareholders' Meeting shall have voted for approval and adoption of this
Agreement.
5.3 ADOPTION BY FIRST COMMAND SHAREHOLDERS. The holders of two-thirds
(2/3) of the outstanding shares of First Command Common Stock shall have voted
for approval and adoption of this Agreement.
5.4 CONSENTS. All approvals, consents, authorizations and waivers from
governmental and other regulatory agencies and other third parties required to
consummate the transactions contemplated by this Agreement, which either
individually or in the aggregate, if not obtained, would have a materially
adverse effect on the financial condition, results of operations or business of
IRA or would prevent consummation of the Merger and the other transactions
contemplated by this Agreement, shall have been obtained.
5.5 NO INJUNCTION. On the Closing Date there shall be no effective
injunction, writ, temporary restraining order or any order of any nature issued
by a court of competent jurisdiction or other governmental authority directing
that the transactions provided for in this Agreement or any of them not be
consummated as so provided or imposing any conditions on the consummation of the
transactions contemplated by this Agreement that First Command deems
unacceptable in its sole discretion.
5.6 NO PROCEEDING OR LITIGATION. No suit, action, or other proceeding
seeking to restrain, prevent or change the transactions contemplated by this
Agreement or otherwise questioning the validity or legality of such transactions
shall have been instituted and be pending.
5.7 NOTICE OF DISSENT. The holders of no more than 20% of either of the
outstanding Class A Stock or the Class B Stock shall have delivered notice of
their intent to exercise their right to dissent under the TBCA.
ARTICLE VI
CONDITIONS TO IRA'S OBLIGATIONS
The obligations of IRA under this Agreement (to be performed on or before
the Closing Date) shall be subject to the satisfaction, on or before the Closing
Date, of each of the following conditions:
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<PAGE>
6.1 PERFORMANCE. First Command shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by it on or prior to the Closing Date.
6.2 FAIRNESS OPINION. IRA shall not have received written notice from
Coopers & Lybrand, LLP that it has withdrawn, revoked or modified its opinion as
to the fairness of the Merger to the shareholders of IRA from a financial point
of view.
6.3 ADOPTION BY IRA SHAREHOLDERS. The conditions set forth in Section 5.2
shall have been satisfied.
6.4 ADOPTION BY FIRST COMMAND SHAREHOLDERS. The conditions set forth in
Section 5.3 shall have been satisfied.
6.5 CONSENTS. All approvals, consents, authorizations and waivers from
governmental and other regulatory agencies and other third parties required to
consummate the transactions contemplated by this Agreement, which either
individually or in the aggregate, if not obtained, would have a materially
adverse effect on the financial condition, results of operations or business of
IRA or would prevent consummation of the Merger and the other transactions
contemplated by this Agreement, shall have been obtained.
6.6 NO INJUNCTION. On the Closing Date, there shall be no effective
injunction, writ, temporary restraining order or any order of any nature issued
by a court of competent jurisdiction or other governmental agency directing that
the transactions provided for in this Agreement or any of them not be
consummated as so provided for in this Agreement or any of them not be
consummated as so provided or imposing any conditions on the consummation of the
transactions contemplated by this Agreement that IRA deems unacceptable in its
sole discretion.
6.7 NO PROCEEDING OR LITIGATION. No suit, action, or other proceeding
seeking to restrain, prevent or change the transactions contemplated by this
Agreement or otherwise questioning the validity or legality of such transactions
shall have been instituted and be pending.
6.8 NOTICE OF DISSENT. The holders of no more than 20% of either of the
outstanding Class A Stock or the Class B Stock shall have delivered notice of
their intent to exercise their right to dissent under the TBCA.
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<PAGE>
ARTICLE VII
CLOSING
7.1 CLOSING. The Closing of the Merger (the "Closing") shall take
place at 4100 South Hulen Street, Fort Worth, Texas 76109, at __:00 a.m.,
local time, on the first date that all conditions contained in Articles VI
and VII of this Agreement have been satisfied or waived in accordance with
this Agreement, or such later date and time as the parties may agree in
writing. The date of the Closing as set forth in this Agreement shall be
called the "Closing Date."
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.1 METHODS OF TERMINATION. Notwithstanding approval by the shareholders
of IRA, this Agreement may be terminated and the Merger may be abandoned at any
time before the Effective Time:
(a) by mutual consent of the Boards of Directors of First Command
and IRA;
(b) by either IRA or First Command if at the Shareholders' Meeting,
or any adjournment thereof, the shareholders of IRA fail to adopt and
approve this Agreement;
(c) by either IRA or First Command if the shareholders of First
Command fail to adopt and approve the Agreement; or
(d) by either IRA or First Command if a court of competent
jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any other
action (which order, decree or ruling the parties hereto shall use their
best efforts to lift), in each case permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement, and
such order, decree, ruling or other action shall have become final and
nonappealable.
8.2 PROCEDURE UPON TERMINATION. In the event of termination and
abandonment by the Board of Directors of First Command or by the Board of
Directors of IRA pursuant to Section 8.1(b), (c) or (d) of this Agreement,
delivery of written notice from the terminating party to the other party shall
automatically terminate this
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<PAGE>
Agreement and shall cause it to be abandoned without further action by First
Command or IRA. If this Agreement is terminated as provided in this Agreement:
(a) All information received by any party with respect to the
business of the other party (other than information which is a matter of
public knowledge or which has been or is published in any publication for
public distribution or filed as public information with any governmental
authority) shall not at any time be used for the advantage of, or disclosed
to third parties by, such party for any reason; and
(b) Neither party shall have any liability or further obligations
to the other party, except as stated in this Section 8.2.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 AMENDMENT AND MODIFICATION. Subject to applicable law, this Agreement
may be amended, modified or supplemented before or after the vote of the
shareholders of IRA by written agreement of the respective Boards of Directors
of First Command and IRA or their respective officers authorized by such Board
of Directors at anytime prior to the Closing Date with respect to any of the
terms contained in this Agreement.
9.2 EXTENSION; WAIVER. At any time prior to the Effective Time, any party
may by appropriate board action (i) extend the time for the performance of any
of the obligations or other acts of the other party or (ii) waive compliance
with any of the agreements or conditions contained in this Agreement. Any such
waiver or failure to insist upon strict compliance shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure. Any agreement
on the part of any party to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such party.
9.3 FEES AND EXPENSES. IRA will pay all expenses incurred by the parties
in connection with the preparation, negotiation, execution, delivery and
consummation of this Agreement and the transactions contemplated by this
Agreement.
9.4 NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by certified or
registered mail with postage prepaid or by overnight mail (next day guaranteed
delivery), or if sent by cable, telegram, telex or telecopy (with receipt
confirmation) as follow:
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<PAGE>
(a) If to IRA, to:
Robert F. Watson
USPA&IRA
4100 South Hulen
Fort Worth, Texas 76109
Telephone: (817) 731-8621, ext. 2220
Fax: (800) 472-8772, ext. 2176
with a copy to:
Brian D. Barnard
Haynes and Boone, LLP
201 Main Street
Suite 2200
Fort Worth, Texas 76102
or to such other person or address as IRA shall furnish to First Command in
writing.
(b) If to First Command, to:
Robert F. Watson
First Command Financial Corporation
4100 South Hulen
Fort Worth, Texas 76109
Telephone: (817) 731-8621, ext. 2220
Fax: (800) 472-8772, ext. 2176
or to such other person or address as First Command shall furnish to IRA in
writing.
9.5 ASSIGNMENT. This Agreement and all of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
either of the parties without the prior written consent of the other party;
provided, however, that this Section 9.5 is not intended to limit or restrict
the class of persons entitled to the benefits of Section 9.6 of this Agreement
or to limit or restrict any such person's standing or capacity to enforce the
provisions of Section 9.6.
9.6 INDEMNIFICATION AND INSURANCE.
(a) It is understood and agreed that IRA shall indemnify and hold
harmless, and, after the Effective Time, the Surviving Corporation shall
indemnify and hold
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<PAGE>
harmless, each present and former employee, agent, officer or director of IRA
or, after the Effective Time, First Command (the "Indemnified Parties") to the
fullest extent permitted under applicable law or under the Articles of
Incorporation and Bylaws of IRA and Surviving Corporation against any losses,
claims, damages, liabilities, costs, expenses, judgments and amounts paid in
settlement ("Damages") in connection with any threatened, pending or
contemplated claim, action, suit, proceeding or investigation arising out of or
pertaining to any action or omission occurring prior to or at the Effective Time
(including, without limitation, any claim, action, suit, proceeding or
investigation to which he is a party or is threatened to be made a party by
reason of such relationship with IRA and which arises out of or relates to the
transactions contemplated hereby) (a "Claim"). The Surviving Corporation agrees
that the provisions of the Surviving Corporation's Articles of Incorporation or
Bylaws as in effect at the Effective Time of the Merger with respect to
exculpation of liability and indemnification of officers, directors and
employees shall not be modified, changed or amended in any manner adverse to an
Indemnified Party except as required by law. These rights to indemnification
and the obligations set forth in this Section 9.6(a) shall survive the Merger.
Without limiting the foregoing, IRA and, after the Effective Time the Surviving
Corporation, to the fullest extent permitted under applicable law, will
periodically advance reasonable expenses as incurred with respect to any Claim
or potential claim provided that the person to whom expenses are advanced, if
required by applicable law, provides an undertaking to repay such advances if it
is ultimately determined by a court of competent jurisdiction that such person
is not entitled to indemnification pursuant to this Section 9.6.
(b) In the event any Claim is brought against any Indemnified Party
(whether before or after the Effective Time) in connection with which such
Indemnified Party asserts that he is entitled to be indemnified and held
harmless pursuant to Section 9.6(a) hereof, (i) the Indemnified Parties may
retain counsel which will be reasonably satisfactory to IRA (or the Surviving
Corporation after the Effective Time), (ii) IRA (or, after the Effective Time,
the Surviving Corporation) shall pay all reasonable fees and expenses of such
counsel for the Indemnified Parties promptly as statements therefor are
received, and (iii) IRA (or, after the Effective Time, the Surviving
Corporation) will use their reasonable best efforts to assist in the vigorous
defense of any such matter. Neither IRA nor the Surviving Corporation shall be
liable for any settlement effected without their written consent, which consent,
however, shall not be unreasonably withheld. Any Indemnified Party wishing to
claim indemnification under Section 9.6(a) hereof, upon learning of any such
Claim, shall notify IRA or the Surviving Corporation thereof but any failure to
so notify IRA or the Surviving Corporation shall not relieve IRA or the
Surviving Corporation of their obligations under this Section 9.6 unless it has
been actually prejudiced by such lack of notice. The Indemnified Parties as a
group may retain only one law firm in each jurisdiction to represent them with
respect to any such matter unless there is, under applicable standards of
professional conduct, a conflict of interest on any significant
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<PAGE>
issue between the positions of any two or more Indemnified Parties. Any
determination required to be made with respect to whether an Indemnified Party's
conduct complied with the standards set forth under applicable law or the Bylaws
of IRA or the Surviving Corporation shall be made by independent counsel
selected by such Indemnified Party and reasonably satisfactory to IRA or the
Surviving Corporation (which shall pay such counsel's reasonable fees and
expenses).
(c) This Section 9.6 shall survive the closing of the transactions
contemplated hereby, is intended to benefit each of the Indemnified Parties
(each of whom shall be entitled to enforce this Section 9.6 against IRA (or the
Surviving Corporation, as the case may be) and shall be binding on all
successors and assigns of IRA and the Surviving Corporation. In the event IRA
or the Surviving Corporation or any of their successors or assigns (i)
consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers all or substantially all of its properties and assets to any
person, then, and in each case, proper provisions shall be made so that the
successors and assigns of IRA and the Surviving Corporation assume the
obligations set forth in this Section 9.6.
9.7 GOVERNING LAW. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of Texas.
9.8 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
9.9 HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part of this Agreement.
9.10 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties in respect of the subject matter contained in this
Agreement. There are no restrictions, promises, warranties, covenants or
undertakings, other than those set forth or referred to in this Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the subject matter hereof.
* * * * *
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<PAGE>
IN WITNESS WHEREOF, the parties have signed this Agreement on the date
first above written.
INDEPENDENT RESEARCH AGENCY FOR
LIFE INSURANCE, INC.
By: /s/ Lamar C. Smith
-----------------------------
Name: Lamar C. Smith
-----------------------------
Title: Chairman of the Board/C.E.O.
-----------------------------
FIRST COMMAND FINANCIAL CORPORATION
By: /s/ James N. Lanier
-----------------------------
Name: James N. Lanier
-----------------------------
Title: President
-----------------------------
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<PAGE>
ANNEX B
OPINION OF THE FINANCIAL ADVISOR
B-1
<PAGE>
June xx, 1998
Special Committee of the Board of Directors
C/O Independent Research Agency for Life Insurance, Inc.
USPA&IRA Building
4100 South Hulen Street
P.O. Box 2387
Fort Worth, Texas 76113
Special Committee of the Board of Directors:
You have requested our opinion as to the fairness to the Class A and
Class B shareholders of Independent Research Agency for Life Insurance, Inc.
(the "Company"), from a financial point of view, of the transaction detailed in
the proposed Agreement and Plan of Merger, dated as of __________, 1998 the
("Merger Agreement"). The Merger Agreement provides for, among other things:
1) a merger of the Company into First Command Financial Corporation (the
"Merger"); 2) the simultaneous exchange of the voting stock of First Command
Financial Corporation for the Class A Voting Common Stock, par value $0.10 per
share ("Class A Stock"), of the Company; 3) the simultaneous exchange of cash
for the Class B Non-Voting Common Stock, par value $0.02 per share ("Class B
Stock"), of the Company held by Class B stockholders, and not by Class A
stockholders; 4) the simultaneous conversion of the Class B Stock held by the
Class A stockholders into cash or an equivalent amount of Surviving Corporation
Non-Voting Stock (as defined in the Company's proxy statement); and 5)
conversion of the Company's corporate status from C-Corporation to
S-Corporation. Hereafter the foregoing will be collectively referred to as the
Transaction. Prior to the Merger, the Company plans to create an incentive
compensation plan for agents and employees and make awards pursuant to said
plan. Subsequent to the Merger, the Surviving Corporation plans to make
additional awards pursuant to the incentive compensation plans to agents and
employees, including those Class B stockholders of the Company who are still
agents or employees at the time of such award.
In connection with our opinion, we have:
(a) considered the terms of the Merger Agreement;
(b) considered various incentive compensation plans contemplated by
the management of the Company as of the date of our analysis;
<PAGE>
Special Committee of the Board of Directors
June xx, 1998
Page 2
(c) considered the fact that the benefit of additional compensation
(in the form of future dividend equivalency rights and stock appreciation
rights) will be available to participants in the aforementioned incentive
compensation plans, and thus be unavailable to current stockholders;
(d) considered the financial and operating implications of the
Company's proposed conversion to S-Corporation status;
(e) considered management's ongoing commitment to the Company's
agents and the maintenance of the Company's mission and corporate culture;
(f) considered certain financial and other operating information
relating to the Company that was publicly available or furnished to us by the
Company, including cash flow analyses prepared by the Company's management;
(g) met with members of the Company's management to discuss the
business, operations, historical financial results and future prospects of the
Company, including the prospective implications of the Company's S-Corporation
election and post transaction incentive plan;
(h) considered certain financial and securities data of the Company
and compared that data with similar data for other companies in businesses
similar to those of the Company;
(i) considered the financial terms of certain recent acquisitions
of companies in businesses similar to those of the Company;
(j) performed a discounted cash flow analysis; and
(k) considered such other information, financial studies, tax
opinions, analyses and investigations and financial, economic and market
criteria as we deemed relevant and appropriate for purposes of this opinion.
The opinion expressed below is subject to the following qualifications
and limitations:
(i) In arriving at our opinion, we have relied upon and assumed,
without independent verification, the accuracy and completeness of all financial
and other information that was publicly available or furnished to us by the
Company. With respect to management's cash flow projections, we have assumed
that they have been reasonably prepared by management and we accept no
responsibility as to their accuracy.
<PAGE>
Special Committee of the Board of Directors
June xx, 1998
Page 3
(ii) We have not made an independent evaluation or appraisal of
specific tangible or intangible assets of the Company, nor have we been
furnished with any such appraisals. We have not been requested to, and did
not, solicit third party indications of interest in acquiring all or any part
of the Company. The Company has indicated that, as of the date of our
analysis, an acquisition of all or any part of the Company was contrary to
the Company's mission and extremely unlikely.
(iii) Our services with respect to the Transaction do not constitute,
nor should they be construed to constitute in any way, a review or audit of or
any other procedures with respect to any financial information nor should such
services be relied upon by any person to disclose weaknesses in internal
controls or financial statement errors or irregularities.
(iv) Our opinion does not address, and should not be construed to
address, either the underlying business decision to effect the Transaction or
whether the consideration to be received by the stockholders in the Transaction
represents the highest price obtainable.
(v) We express no view as to the federal, state or local tax
consequences of the Transaction.
(vi) Our opinion is based on business, economic, market and other
conditions as they exist as of the date hereof or as of the date of the
information provided to us.
(vii) This opinion is effective as of the date hereof. We have no
obligation to update the opinion unless requested by you in writing to do so and
expressly disclaim any responsibility to do so in the absence of any such
request.
Based upon and subject to the foregoing, it is our opinion that as of
the date hereof, the Transaction is fair to the Company's Class A and Class B
stockholders from a financial point of view.
We will receive a fee as compensation for our services in rendering
this opinion. Neither the employment to conduct this analysis, nor the
compensation for this engagement, is contingent upon conclusions ultimately
reported.
<PAGE>
Special Committee of the Board of Directors
June xx, 1998
Page 4
This letter is for the information of the Special Committee of the
Board of Directors, in their capacity as advisors to the Board of Directors of
the Company, and the Board of Directors, in connection with the Transaction
described herein. This opinion may not be quoted or referred to, in whole or in
part, filed with, or furnished or disclosed to any other party, or used for any
other purpose, without our prior written consent. Coopers & Lybrand L.L.P. has
agreed to permit the Company to include Coopers & Lybrand L.L.P.'s opinion, in
its entirety, in the proxy statement filed by the Company with the Securities
and Exchange Commission in connection with the Transaction.
Very truly yours,
COOPERS & LYBRAND L.L.P.
By
----------------------------
<PAGE>
ANNEX C
PROVISIONS OF THE TEXAS BUSINESS CORPORATION ACT
RELATING TO
RIGHTS OF DISSENTING SHAREHOLDERS
(ARTICLES 5.11 THROUGH 5.13)
Article 5.11. Rights of Dissenting Shareholders in the Event of Certain
Corporate Actions
A. Any shareholder of a domestic corporation shall have the right to
dissent from any of the following corporate actions:
(1) Any plan of merger to which the corporation is a party if
shareholder approval is required by Article 5.03 or 5.16 of this Act and
the shareholder holds shares of a class or series that was entitled to vote
thereon as a class or otherwise;
(2) Any sale, lease, exchange or other disposition (not including any
pledge, mortgage, deed of trust or trust indenture unless otherwise
provided in the articles of incorporation) of all, or substantially all,
the property and assets, with or without good will, of a corporation if
special authorization of the shareholders is required by this Act and the
shareholders hold shares of a class or series that was entitled to vote
thereon as a class or otherwise;
(3) Any plan of exchange pursuant to Article 5.02 of this Act in which the
shares of the corporation of the class or series held by the shareholder are to
be acquired.
B. Notwithstanding the provisions of Section A of this Article, a
shareholder shall not have the right to dissent from any plan of merger in which
there is a single surviving or new domestic or foreign corporation, or from any
plan of exchange, if:
(1) the shares held by the shareholder are part of a class or series,
shares of which are on the record date fixed to determine the shareholders
entitled to vote on the plan of merger or plan of exchange:
(a) listed on a national securities exchange;
(b) listed on the Nasdaq Stock Market (or successor quotation
system) or designated as a national market security on an interdealer
quotation system by the National Association of Securities Dealers,
Inc., or successor entity; or
(c) held of record by not less than 2,000 holders;
(2) the shareholder is not required by the terms of the plan of
merger or plan of exchange to accept for the shareholder's shares any
consideration that is different than the consideration (other than cash in
lieu of fractional shares that the shareholder would otherwise be entitled
to receive) to be provided to any other holder of shares of the same class
or series of shares held by such shareholder; and
(3) the shareholder is not required by the terms of the plan of
merger or the plan of exchange to accept for the shareholder's shares any
consideration other than:
(a) shares of a domestic or foreign corporation that,
immediately after the effective time of the merger or exchange, will
be part of a class or series, shares of which are:
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(i) listed, or authorized for listing upon official notice
of issuance, on a national securities exchange;
(ii) approved for quotation as a national market security
on an interdealer quotation system by the National Association of
Securities Dealers, Inc., or successor entity; or
(iii) held of record by not less than 2,000 holders;
(b) cash in lieu of fractional shares otherwise entitled to be
received; or
(c) any combination of the securities and cash described in
Subdivisions (a) and (b) of this subsection.
Article 5.12. Procedure for Dissent by Shareholders as to Said Corporate
Actions
A. Any shareholder of any domestic corporation who has the right to
dissent from any of the corporate actions referred to in Article 5.11 of this
Act may exercise that right to dissent only by complying with the following
procedures:
(1)(a) With respect to proposed corporate action that is submitted
to a vote of shareholders at a meeting, the shareholder shall file with the
corporation, prior to the meeting, a written objection to the action,
setting out that the shareholder's right to dissent will be exercised if
the action is effective and giving the shareholder's address, to which
notice thereof shall be delivered or mailed in that event. If the action is
effected and the shareholder shall not have voted in favor of the action,
the corporation, in the case of action other than a merger, or the
surviving or new corporation (foreign or domestic) or other entity that is
liable to discharge the shareholder's right of dissent, in the case of a
merger, shall, within ten (10) days after the action is effected, deliver
or mail to the shareholder written notice that the action has been
effected, and the shareholder may, within ten (10) days from the delivery
or mailing of the notice, make written demand on the existing, surviving,
or new corporation (foreign or domestic) or other entity, as the case may
be, for payment of the fair value of the shareholder's shares. The fair
value of the shares shall be the value thereof as of the day immediately
preceding the meeting, excluding any appreciation or depreciation in
anticipation of the proposed action. The demand shall state the number and
class of the shares owned by the shareholder and the fair value of the
shares as estimated by the shareholder. Any shareholder failing to make
demand within the ten (10) day period shall be bound by the action.
(b) With respect to proposed corporate action that is approved
pursuant to Section A of Article 9.10 of this Act, the corporation, in the
case of action other than a merger, and the surviving or new corporation
(foreign or domestic) or other entity that is liable to discharge the
shareholder's right of dissent, in the case of a merger, shall, within ten
(10) days after the date the action is effected, mail to each shareholder
of record as of the effective date of the action notice of the fact and
date of the action and that the shareholder may exercise the shareholder's
right to dissent from the action. The notice shall be accompanied by a copy
of this Article and any articles or documents filed by the corporation with
the Secretary of State to effect the action. If the shareholder shall not
have consented to the taking of the action, the shareholder may, within
twenty (20) days after the mailing of the notice, make written demand on
the existing, surviving, or new corporation (foreign or domestic) or other
entity, as the case may be, for payment of the fair value of the
shareholder's shares. The fair value of the shares shall be the value
thereof as of the date the written consent authorizing the action was
delivered to the corporation pursuant to Section A of Article 9.10 of this
Act, excluding any appreciation or depreciation in anticipation of the
action. The demand shall state the number and class of shares owned by the
dissenting shareholder and the fair value of the shares
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as estimated by the shareholder. Any shareholder failing to make demand
within the twenty (20) day period shall be bound by the action.
(2) Within twenty (20) days after receipt by the existing, surviving,
or new corporation (foreign or domestic) or other entity, as the case may
be, of a demand for payment made by a dissenting shareholder in accordance
with Subsection (1) of this Section, the corporation (foreign or domestic)
or other entity shall deliver or mail to the shareholder a written notice
that shall either set out that the corporation (foreign or domestic) or
other entity accepts the amount claimed in the demand and agrees to pay
that amount within ninety (90) days after the date on which the action was
effected, and, in the case of shares represented by certificates, upon the
surrender of the certificates duly endorsed, or shall contain an estimate
by the corporation (foreign or domestic) or other entity of the fair value
of the shares, together with an offer to pay the amount of that estimate
within ninety (90) days after the date on which the action was effected,
upon receipt of notice within sixty (60) days after that date from the
shareholder that the shareholder agrees to accept that amount and, in the
case of shares represented by certificates, upon the surrender of the
certificates duly endorsed.
(3) If, within sixty (60) days after the date on which the corporate
action was effected, the value of the shares is agreed upon between the
shareholder and the existing, surviving, or new corporation (foreign or
domestic) or other entity, as the case may be, payment for the shares shall
be made within ninety (90) days after the date on which the action was
effected and, in the case of shares represented by certificates, upon
surrender of the certificates duly endorsed. Upon payment of the agreed
value, the shareholder shall cease to have any interest in the shares or in
the corporation.
B. If, within the period of sixty (60) days after the date on which the
corporate action was effected, the shareholder and the existing, surviving, or
new corporation (foreign or domestic) or other entity, as the case may be, do
not so agree, then the shareholder or the corporation (foreign or domestic) or
other entity may, within sixty (60) days after the expiration of the sixty (60)
day period, file a petition in any court of competent jurisdiction in the county
in which the principal office of the domestic corporation is located, asking for
a finding and determination of the fair value of the shareholder's shares. Upon
the filing of any such petition by the shareholder, service of a copy thereof
shall be made upon the corporation (foreign or domestic) or other entity, which
shall, within ten (10) days after service, file in the office of the clerk of
the court in which the petition was filed a list containing the names and
addresses of all shareholders of the domestic corporation who have demanded
payment for their shares and with whom agreements as to the value of their
shares have not been reached by the corporation (foreign or domestic) or other
entity. If the petition shall be filed by the corporation (foreign or domestic)
or other entity, the petition shall be accompanied by such a list. The clerk of
the court shall give notice of the time and place fixed for the hearing of the
petition by registered mail to the corporation (foreign or domestic) or other
entity and to the shareholders named on the list at the addresses therein
stated. The forms of the notices by mail shall be approved by the court. All
shareholders thus notified and the corporation (foreign or domestic) or other
entity shall thereafter be bound by the final judgment of the court.
C. After the hearing of the petition, the court shall determine the
shareholders who have complied with the provisions of this Article and have
become entitled to the valuation of and payment for their shares, and shall
appoint one or more qualified appraisers to determine that value. The appraisers
shall have power to examine any of the books and records of the corporation the
shares of which they are charged with the duty of valuing, and they shall make a
determination of the fair value of the shares upon such investigation as to them
may seem proper. The appraisers shall also afford a reasonable opportunity to
the parties interested to submit to them pertinent evidence as to the value of
the shares. The appraisers shall also have such power and authority as may be
conferred on Masters in Chancery by the Rules of Civil Procedure or by the order
of their appointment.
D. The appraisers shall determine the fair value of the shares of the
shareholders adjudged by the court to be entitled to payment for their shares
and shall file their report of their value in the office of the clerk of the
court.
C-3
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Notice of the filing of the report shall be given by the clerk to the parties in
interest. The report shall be subject to exceptions to be heard before the court
both upon the law and the facts. The court shall by its judgment determine the
fair value of the shares of the shareholders entitled to payment for their
shares and shall direct the payment of that value by the existing, surviving, or
new corporation (foreign or domestic) or other entity, together with interest
thereon, beginning 91 days after the date on which the applicable corporate
action from which the shareholder elected to dissent was effected to the date of
such judgment, to the shareholders entitled to payment. The judgment shall be
payable to the holders of uncertificated shares immediately but to the holders
of shares represented by certificates only upon, and simultaneously with, the
surrender to the existing, surviving, or new corporation (foreign or domestic)
or other entity, as the case may be, of duly endorsed certificates for those
shares. Upon payment of the judgment, the dissenting shareholders shall cease to
have any interest in those shares or in the corporation. The court shall allow
the appraisers a reasonable fee as court costs, and all court costs shall be
allotted between the parties in the manner that the court determines to be fair
and equitable.
E. Shares acquired by the existing, surviving, or new corporation
(foreign or domestic) or other entity, as the case may be, pursuant to the
payment of the agreed value of the shares or pursuant to payment of the judgment
entered for the value of the shares, as in this Article provided, shall, in the
case of a merger, be treated as provided in the plan of merger and, in all other
cases, may be held and disposed of by the corporation as in the case of other
treasury shares.
F. The provisions of this Article shall not apply to a merger if, on the
date of the filing of the articles of merger, the surviving corporation is the
owner of all the outstanding shares of the other corporations, domestic or
foreign, that are parties to the merger.
G. In the absence of fraud in the transaction, the remedy provided by
this Article to a shareholder objecting to any corporate action referred to in
Article 5.11 of this Act is the exclusive remedy for the recovery of the value
of his shares or money damages to the shareholder with respect to the action. If
the existing, surviving, or new corporation (foreign or domestic) or other
entity, as the case may be, complies with the requirements of this Article, any
shareholder who fails to comply with the requirements of this Article shall not
be entitled to bring suit for the recovery of the value of his shares or money
damages to the shareholder with respect to the action.
Article 5.13. Provisions Affecting Remedies of Dissenting Shareholders
A. Any shareholder who has demanded payment for his shares in accordance
with either Article 5.12 or 5.16 of this Act shall not thereafter be entitled to
vote or exercise any other rights of a shareholder except the right to receive
payment for his shares pursuant to the provisions of those articles and the
right to maintain an appropriate action to obtain relief on the ground that the
corporate action would be or was fraudulent, and the respective shares for which
payment has been demanded shall not thereafter be considered outstanding for the
purposes of any subsequent vote of shareholders.
B. Upon receiving a demand for payment from any dissenting shareholder,
the corporation shall make an appropriate notation thereof in its shareholder
records. Within twenty (20) days after demanding payment for his shares in
accordance with either Article 5.12 or 5.16 of this Act, each holder of
certificates representing shares so demanding payment shall submit such
certificates to the corporation for notation thereon that such demand has been
made. The failure of holders of certificated shares to do so shall, at the
option of the corporation, terminate such shareholder's rights under Articles
5.12 and 5.16 of this Act unless a court of competent jurisdiction for good and
sufficient cause shown shall otherwise direct. If uncertificated shares for
which payment has been demanded or shares represented by a certificate on which
notation has been so made shall be transferred, any new certificate issued
therefor shall bear similar notation together with the name of the original
dissenting holder of such shares and a transferee of such shares shall acquire
by such transfer no rights in the corporation other than those which the
original dissenting shareholder had after making demand for payment of the fair
value thereof.
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C. Any shareholder who has demanded payment for his shares in accordance
with either Article 5.12 or 5.16 of this Act may withdraw such demand at any
time before payment for his shares or before any petition has been filed
pursuant to Article 5.12 or 5.16 of this Act asking for a finding and
determination of the fair value of such shares, but no such demand may be
withdrawn after such payment has been made or, unless the corporation shall
consent thereto, after any such petition has been filed. If, however, such
demand shall be withdrawn as hereinbefore provided, or if pursuant to Section B
of this Article the corporation shall terminate the shareholder's rights under
Article 5.12 of 5.16 of this Act, as the case may be, or if no petition asking
for a finding and determination of fair value of such shares by a court shall
have been filed within the time provided in Article 5.12 or 5.16 of this Act, as
the case may be, or if after the hearing of a petition filed pursuant to Article
5.12 or 5.16, the court shall determine that such shareholder is not entitled to
the relief provided by those articles, then, in any such case, such shareholder
and all persons claiming under him shall be conclusively presumed to have
approved and ratified the corporate action from which he dissented and shall be
bound thereby, the right of such shareholder to be paid the fair value of his
shares shall cease, and his status as a shareholder shall be restored without
prejudice to any corporate proceedings which may have been taken during the
interim, and such shareholders shall be entitled to receive any dividends or
other distributions made to shareholders in the interim.
C-5
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ANNEX D
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
ANNUAL REPORT ON FORM 10-K
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 1997
AND
QUARTERLY REPORT ON FORM 10-Q
FOR THE PERIOD ENDED JUNE 30, 1998, AS AMENDED SEPTEMBER 9, 1998
D-1
<PAGE>
ANNEX E
ARTICLES OF INCORPORATION, AS PROPOSED TO BE AMENDED,
AND
BYLAWS, AS PROPOSED TO BE AMENDED,
OF SURVIVING CORPORATION
E-1
<PAGE>
RESTATED ARTICLES OF INCORPORATION
WITH AMENDMENT
OF
FIRST COMMAND FINANCIAL CORPORATION
FIRST COMMAND FINANCIAL CORPORATION, pursuant to the provisions of Article
4.07 of the Texas Business Corporation Act, hereby adopts Restated Articles of
Incorporation which accurately copy the Articles of Incorporation as amended by
such Restated Articles of Incorporation as hereinafter set forth and which
contain no other change in any provision thereof.
ARTICLE ONE
The Articles of Incorporation of the Corporation are amended by the
Restated Articles of Incorporation as follows:
1. Article 4 of the Articles of Incorporation is hereby amended in its
entirety to read as follows:
4. SHARES. The aggregate number of shares which the Corporation is
authorized to issue is ten million ten thousand (10,010,000) shares,
each having a par value of $.01. The shares are to be designated as
Common Stock and will have identical rights and privileges in every
respect, with the sole exception that ten thousand (10,000) of such
shares shall be designated as Voting Common Stock and shall possess
the right to vote on all matters that may come before the stockholders
of the Corporation, and ten million (10,000,000) of such shares shall
be designated as Nonvoting Common Stock and shall not possess the
right to vote on any matter except as specifically provided by the
Texas Business Corporation Act.
2. A new Article 7 is hereby added to the Articles of Incorporation which
shall read in its entirety as follows:
7. RESTRICTIONS ON TRANSFER OF SHARES. Except as otherwise
expressly provided and authorized herein, a Shareholder shall not
Transfer (as defined below) any shares of Stock that he or she now or
hereafter owns. The parties hereto understand that the Corporation
may refuse to Transfer the shares of Stock on its books and records
when that Transfer would not
<PAGE>
be in compliance with the terms hereof, and that any attempted
Transfer in violation hereof shall be null and void.
A. DEFINITIONS. As used herein:
(1) CODE. The term "CODE" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
(2) DETERMINATION DATE. The term "DETERMINATION DATE"
shall mean the day upon which, in the case of a purchase of Stock
hereunder, the Disposition Notice referred to in Section 3.1 has been
received by the Corporation, except that with respect to a Disposition
Notice made in connection with the death of a Shareholder or the
termination of a Shareholder's marital relationship, "DETERMINATION
DATE" shall mean the date of that death or termination.
(3) DISPOSING SHAREHOLDER. The term "DISPOSING
SHAREHOLDER" shall mean that Shareholder (or the surviving spouse of
or estate of a deceased Shareholder in the case of a Shareholder's
death) required to tender shares of Stock to the Corporation upon the
occurrence of an Operative Event with respect to that Shareholder.
(4) DISPOSITION NOTICE. The term "DISPOSITION NOTICE"
shall mean the written notice required by paragraph C.(1) below to be
made by the Disposing Shareholder to the Corporation or allowed by
paragraph C.(1) to be made by the Corporation to the Disposing
Shareholder.
(5) OPERATIVE EVENT. The term "OPERATIVE EVENT" shall
mean, with respect to any Shareholder, any of the following events:
(a) Any threatened or actual Transfer of Stock in any
manner whatsoever by that Shareholder;
(b) The death of that Shareholder;
(c) The termination of the marital relationship of
that Shareholder by death or divorce if that Shareholder does not
succeed to his or her spouse's community interest in the Stock or the
entering into of any property settlement arrangement or agreement in
connection therewith, pursuant to which that Shareholder's interest in
his or her Stock is to be diluted, lessened, encumbered or impaired;
2
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(d) Any threatened or actual (i) bankruptcy or
insolvency of that Shareholder or (ii) institution of legal
proceedings because or by reason of the bankruptcy or insolvency of
that Shareholder;
(e) The termination of the status of that Shareholder
as a duly licensed Texas life insurance agent;
(f) The cessation of that Shareholder as a duly
authorized agent of the Corporation pursuant to a current written
agency agreement, except that with respect to an involuntary
termination as a duly authorized agent of the Corporation, such
termination shall require approval by a vote of eighty percent (80%)
of the Board of Directors of the Corporation;
(g) The change in status of that Shareholder to a
"non-resident alien" as defined in the Code; or
(h) Any threatened or actual levy by a creditor or
claimant upon the shares of Stock held by that Shareholder or any
other seizure or sale by legal process, if it is determined by legal
counsel for the Corporation that such levy is made in good faith and
based upon a bona fide claim.
It shall not be a requirement hereunder that the Executive Committee
of the Board of Directors of the Corporation (the "EXECUTIVE
COMMITTEE") make a determination in every instance that an Operative
Event has so occurred with respect to any Shareholder, but such
determination shall be made in those instances in which there may be
some question as to whether an Operative Event did in fact occur.
Upon such determination by the Executive Committee that an Operative
Event has in fact occurred, in order to inform the Shareholder of such
occurrence, the Corporation may deliver a written notice to the
Shareholder or his or her legal representative stating that (i) such
an Operative Event has occurred, (ii) the date thereof and (iii) the
reasons for the determination. The Shareholder affected or his or her
legal representative shall thereupon be required to tender to the
Corporation for sale his or her Stock to the Corporation upon the
terms and conditions as set forth in paragraph C. below.
(6) TRANSFER. The term "TRANSFER" shall mean, as a noun, a
transfer, sale, assignment, exchange, gift, donation, pledge,
mortgage, hypothecation or other encumbrance or other disposition, and
as a verb, to transfer, sell, assign, exchange, gift, donate, pledge,
mortgage, hypothecate or otherwise encumber or otherwise dispose.
3
<PAGE>
B. RESTRICTIONS ON TRANSFER OF SHARES.
Except as otherwise expressly provided and authorized in the
Articles of Incorporation, a Shareholder shall not Transfer any shares
of Stock that he or she now or hereafter owns. The Corporation may
refuse to Transfer the shares of Stock on its books and records when
that Transfer would not be in compliance with the terms of the
Articles of Incorporation, and any attempted Transfer in violation
hereof shall be null and void.
(1) RESTRICTIONS ON TRANSFER.
(a) No Shareholder may Transfer, and no person may
acquire, the legal or beneficial ownership of any share of Stock now
or hereafter owned by him or her if that Transfer or acquisition would
cause the S corporation status of the Corporation to terminate.
Specifically, no Transfer may be made to, and no acquisition may be
made by, any person who would cause the Corporation to have more than
the maximum permitted number of shareholders under the Code as then in
effect or to any person that is not eligible to be a shareholder of an
S corporation under the provisions of the Code.
(b) In addition to the requirements of paragraph
B.(1)(a) above, no Transfer of shares of Stock shall be permitted, and
no purported Transfer shall be effective, until the transferee has
followed all of the requirements of paragraph C. below.
(c) Notwithstanding B.(1)(a) and (b) above, with the
prior written consent of the Executive Committee, a Shareholder may
pledge, mortgage, hypothecate or otherwise encumber his or her Stock
subject to such terms, conditions and restrictions as the Executive
Committee shall determine to be appropriate in the exercise of its
sole discretion.
(2) EFFECT OF PURPORTED TRANSFER. Any purported Transfer
or acquisition of shares of Stock in violation of paragraph B.(1)
above shall be null and void. The purported transferee shall have no
interest in any of the shares of Stock purported to be transferred.
Any such purported Transfer or acquisition may and should be enjoined
by the Corporation in the event that the Executive Committee so
determines.
(3) BENEFICIAL OWNERSHIP. Any purported Transfer in
violation hereof will not affect the beneficial ownership of the
shares of Stock. Thus, the Shareholder making the purported transfer
will retain the right to vote and the right to receive distributions
and liquidation
4
<PAGE>
proceeds related to those shares. Additionally, a Shareholder making
the purported Transfer shall continue to report the portion of income
or loss allocated by the Corporation in accordance with the provisions
of the Code.
C. TENDER REQUIREMENT.
(1) TENDER FOR SALE. Upon the occurrence of any Operative
Event with respect to a Shareholder, the Disposing Shareholder, or his
or her legal representative, as the case may be, must tender for sale
all shares of Stock owned by the Disposing Shareholder. In the case
of an Operative Event, the Disposing Shareholder is required to mail a
Disposition Notice to the Corporation no less than one hundred twenty
(120) days prior to the date of the proposed Transfer. Alternatively,
upon an Operative Event of a Disposing Shareholder, the Corporation
may mail a Disposition Notice to that Disposing Shareholder. Upon its
receipt or its mailing of a Disposition Notice, the Corporation shall
have the exclusive right and option, exercisable at the sole
discretion of the Executive Committee, as described in paragraph C.(2)
to buy such shares of Stock, or any portion thereof, as provided
herein. The Disposition Notice shall be sent by certified mail, if to
the Corporation, to the attention of the president and the general
counsel of the Corporation at the principal address of the
Corporation, or if to the Disposing Shareholder at his or her last
known address. In the event that the Operative Event involves a
proposed Transfer pursuant to an offer to purchase or sell all or any
portion of a Shareholder's Stock received or made by such Shareholder
from or to a third party, the Disposition Notice shall set forth the
full details of such proposed Transfer including, among other things,
the name of the offeror or proposed purchaser or transferee, the
number of shares covered by the offer, the purchase price per share,
the terms of payment, whether for cash or credit (and if by credit,
the maturity and interest rate), any and all other consideration being
received or paid in connection with such proposed Transfer, and any
and all other terms, conditions and details of such offer.
(2) PURCHASE BY CORPORATION. Upon delivery of a valid
Disposition Notice, the Corporation shall have the exclusive right and
option, exercisable at any time within one hundred twenty (120) days
after the mailing of a Disposition Notice, to purchase all or part of
the Disposing Shareholder's shares of Stock at the Purchase Price and
on the terms and conditions set forth herein. If the Corporation
chooses to exercise the option (in whole or in part), it shall give
written notification (the "CORPORATE EXERCISE NOTICE") to that effect
to the Disposing Shareholder or his or her legal representative, as
the case may be, setting
5
<PAGE>
forth the number and type of shares being purchased and the price and
terms and conditions, in accordance with this Agreement, and such sale
and purchase shall be closed on the one hundred twentieth (120th) day
after the Corporate Exercise Notice is sent to the Disposing
Shareholder or to his or her legal representative (or, if such date is
not a business day, on the first business day thereafter).
(3) THIRD PARTY BOUND. If, in accordance with this
paragraph C., shares of Stock are Transferred to a third party, the
Disposing Shareholder shall require, as a condition of the sale to
such third party, that the purchaser or transferee of his or her
shares will become a party to this Agreement, but only if the
Corporation so desires and agrees to such purchaser becoming subject
to this Agreement in a written notice sent to the Disposing
Shareholder. All shares of Stock retained by the Disposing
Shareholder shall remain subject to all of the provisions of the
Articles of Incorporation.
D. INSURANCE. In order to facilitate the purchase of shares of
Stock upon the death of a Shareholder, the Corporation may, but is not
required to, apply for and obtain separate policies of insurance upon
the lives of each of the Shareholders payable to the Corporation;
provided, however, that the purchase price of the shares of Stock and
the manner and terms of payment therefor shall be governed in all
respect by paragraphs E and F below. The Corporation will pay the
premiums upon such policies and shall provide proof of payment of such
premiums to any Shareholder, upon his or her request. The Corporation
shall be the sole owner, and shall have the sole right to designate
the beneficiary or beneficiaries, of such policy or policies.
E. PURCHASE PRICE.
(1) PURCHASE PRICE. In the case of all Operative Events,
the purchase price per share of Stock to be paid by the Corporation
shall be the Purchase Price, as defined in paragraph (2) below.
(2) AGREED VALUE. The Corporation, at least annually,
shall advise the Shareholders in writing of the price per share of
Stock which the Corporation will pay to any and all Disposing
Shareholders for shares tendered pursuant hereto. Each such
determination of the "PURCHASE PRICE" shall become effective on the
date specified by the Corporation and shall remain effective until the
next determination of a new Purchase Price and shall be
proportionately adjusted for any subsequent increase or decrease of
the number of issued shares of Stock resulting from a subdivision or
consolidation of shares or other
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adjustment, or the payment of a stock dividend or other increase or
decrease in the number of shares of Stock outstanding, effective
without the receipt of consideration by the Corporation. It is
specifically agreed that this Purchase Price shall be the purchase
price paid by the Corporation hereunder to any Disposing Shareholder.
F. PAYMENT OF PURCHASE PRICE.
(1) TRANSFER AND DELIVERY OF STOCK. At the closing, or at
some other time or place designated by all of the parties, the
Disposing Shareholder or his or her legal representative shall deliver
to the Corporation in exchange for the concurrent payment of the
Purchase Price, the certificates of shares of the Stock being
purchased, free and clear of all liens, claims, security interests and
encumbrances, duly endorsed for transfer and bearing any necessary
documentary stamps, and such assignments, certificates of authority,
tax releases, consents to transfer by a fiduciary or representative of
the Disposing Shareholder, and any instruments in evidence of the
title of the Shareholder and of the parties' compliance with this
Agreement, the federal and state securities laws, and any other
agreements or regulations as may be recommended by counsel for the
Corporation.
(2) METHOD. The manner of payment of the Purchase Price
may be, at the option of the Corporation, either (i) the payment of
the entire Purchase Price, by cash or by certified, bank cashier, or
treasurer's check, of (ii) down payment of twenty percent (20%) of
such Purchase Price in cash at closing and delivery of a promissory
note or promissory notes for the balance, in non-negotiable form, to
the order of the Disposing Shareholder or his or her legal
representative, pursuant to which the Corporation agrees to pay the
balance in four (4) equal annual installments, with interest on the
unpaid balance at the lesser of (i) the rate of the prime rate
published in THE WALL STREET JOURNAL per annum on the date of the
closing or (ii) the highest non-usurious rate permitted by applicable
law, with each installment of principal and interest payable annually
on each anniversary date of the making of the promissory note, and
with the right of the Corporation to prepay at any time without
premium or penalty. The promissory note shall be secured by the
pledge of Stock purchased thereby, with executed security instruments
covering such pledged Stock, unless such pledge arrangement is waived
by the Disposing Shareholder or his or her legal representative, as
the case may be. Notwithstanding anything herein to the contrary, in
the event that the Disposing Shareholder dies, the down payment
provided for in clause (ii) above shall not be less than the proceeds
received by the Corporation under the insurance, if any, described in
paragraph D above.
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3. A new Article 8 is hereby added to the Articles of Incorporation which
shall read in its entirety as follows:
8. SUBCHAPTER S PROVISIONS.
A. SUBCHAPTER S REPRESENTATION. Each Shareholder acknowledges
that the Corporation has made a valid election to be treated, for
federal and state income tax purposes, as an S corporation. Each
Shareholder shall provide to the Corporation, immediately upon the
Corporation's request, such properly signed consents or other
documents as, in the opinion of the Corporation, may be necessary or
useful to maintain the Corporation's status as an S corporation, and
each Shareholder covenants that he or she will do nothing to interfere
with the Corporation's maintenance of its status as an S corporation.
B. REVOCATION OF ELECTION. In the event that the Shareholders,
by the affirmative vote of at least eighty percent (80%) of the votes
which all of the Shareholders are entitled to cast, determine to
terminate the Corporation's status as an S corporation, and thereafter
each Shareholder is provided with written notice of such
determination, within sixty (60) days after the delivery of such
notice, each Shareholder, if requested, will execute a consent to such
revocation in the form prescribed by the Internal Revenue Service or
any relevant state tax authority and shall deliver such consent to the
Secretary of the Corporation. If the Corporation's S status is
terminated under this paragraph B., in the event that the Executive
Committee so determines, the Shareholders and the Corporation shall
elect, if applicable, to have Section 1362(e)(2) of the Code not
apply, as provided in Section 1362(e)(3) of the Code. Any person who
was a Shareholder at any time during the S short year (as defined in
Section 1362(e)(1)(A) of the Code) or who is a Shareholder on the
first day of the C short year (as defined in Section 1362(e)(1)(B) of
the Code) shall consent to such election.
C. INADVERTENT TERMINATION OF SUBCHAPTER S ELECTION. In the
event of a termination of the Corporation's status as an S corporation
other than pursuant to paragraph B. above, if the Corporation and the
Shareholders remaining after such termination desire that the
Corporation's status as an S corporation be continued, the Corporation
and all Shareholders as of and/or after the terminating event shall
use their best efforts to obtain from the Internal Revenue Service a
waiver of the terminating event on the ground of inadvertency. The
Corporation and the Shareholders shall take such steps, and make such
adjustments, as may be required by the Internal Revenue Service
pursuant to Section 1362(f)(3) and (4) of the Code. If a Shareholder
caused the terminating event to occur, he or she shall bear the
expense of procuring the waiver, including the legal,
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accounting and tax costs of taking such steps, and of making such
adjustments as may be required. If the inadvertent termination is not
waived by the Internal Revenue Service and the Corporation's S status
is permanently terminated, in the event that the Executive Committee
so determines, the Corporation and the Shareholders shall make the
election under Section 1362(e)(3) of the Code contemplated by
paragraph B. above.
D. PROVISION IN SHAREHOLDER WILLS. Each Shareholder shall use
his or her best efforts to include in his or her will a direction and
authorization to his or her executor in substantially the following
form:
(a) My Executor is hereby directed and authorized to hold
stock of an S Corporation, as defined in the Code (hereinafter
"S Stock"), to make an election to have any corporation treated as an
S Corporation, to enter into agreements with other shareholders or
with the corporation relating to a transfer (including, without
limitation, a sale, assignment, exchange, gift, donation, mortgage,
hypothecation or other encumbrance or other disposition (a "TRANSFER")
of S Stock or the management of the S Corporation, and to allocate
amounts received and the tax on undistributed income between income
and principal. During the administration of my estate, my Executor
may allocate the tax deductions and credits arising from ownership of
S Stock between income and principal. In making any such allocations,
my Executor shall consider that the beneficiary is to have enjoyment
of the property at least equal to that ordinarily associated with an
income interest and in all events shall provide the required
beneficial enjoyment to the beneficiary until such time as the S Stock
is distributed to him or her.
(b) Any beneficiary of my estate who receives stock in an S
Corporation as part of his or her distribution shall, prior to such
distribution, enter into a written agreement with said S Corporation
(i) to consent to any election to qualify the S Corporation as such;
(ii) to do nothing to interfere with the S Corporation's maintenance
of its status as such; (iii) not to Transfer the S Stock to any
transferee who does not agree to execute a similar consent; (iv) not
to Transfer the S Stock in such manner as will cause the S Corporation
to lose its status as an S Corporation under the then applicable
federal and state income tax statutes and regulations; and (v) if S
status is inadvertently terminated, to join in any endeavor to obtain
a waiver of the terminating event on the grounds of inadvertency from
the Internal Revenue Service if the S Corporation desires that the S
status should continue.
(c) Any S Stock distributed to a beneficiary shall bear an
appropriate legend on the stock certificate stating that the Transfer
of
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the stock is subject to and restricted to the extent set forth in
subparagraph (b) above.
Notwithstanding the foregoing requirement, the failure of a
Shareholder so to direct his or her executor shall not affect the
validity of these Articles of Incorporation.
E. DISTRIBUTIONS TO PAY TAX LIABILITIES.
(a) For the period during which the Corporation is an S
Corporation (the "S CORP PERIOD"), the Corporation shall promptly
declare and make distributions during the S Corp Period to all
Shareholders in a timely manner to allow the federal income tax
(including, without limitation, estimated tax payments) attributable
to the Corporation's taxable income during the S Corp Period that is
passed through the Corporation to the Shareholders to be paid by such
Shareholders when due (each, a "DUE DATE"). To satisfy this
requirement, during the S Corp Period, the Corporation shall pay on or
before five (5) days prior to each Due Date, an amount so that the
cumulative amount of distributions during the S Corp. Period that have
been designated by the Corporation as "TAX DISTRIBUTIONS" are at least
equal to the excess of (i) the sum of the products of (A) the
Corporation's positive taxable income (as determined under Section
1366(a) of the Code) attributed to its Shareholders during each of its
taxable periods during the S Corp Period multiplied by (B) the sum of
the highest federal individual income tax rates in effect for each
such taxable period (without regard to exemptions or phase-outs of
lower tax rates, but with consideration of the character of any item
and the deductibility of state taxes for federal income tax purposes),
over (ii) the sum of the products of (A) the Corporation's negative
taxable income (as determined under Section 1366(a) of the Code)
attributable to its Shareholders during each of its taxable periods
during the S Corp Period multiplied by (B) the sum of the highest
federal income tax rates in effect for each such taxable period
(without regard to exemptions or phase-outs of lower tax rates, but
with consideration of the character of any item and the deductibility
of state taxes for federal income tax purposes). The Corporation's
obligation to declare and make any such distributions to the
Shareholders is subject to the restrictions governing dividends under
the Texas Business Corporation Act and such other pertinent
governmental or contractual restrictions as are now or may hereafter
become effective. If the Corporation does not have sufficient funds
available to permit it lawfully to declare and pay such distributions,
the Shareholders and the Corporation shall take such action, adopt
such resolutions, and cause such certificates and other documents to
be filed as may be necessary to create sufficient funds to
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permit the making of such distributions, whereupon the Corporation
shall declare and pay such distributions.
(b) No provision of this Article 8 shall cause the total
distributions made with respect to any outstanding shares of stock of
the Corporation to differ from the amounts paid with respect to any
other outstanding shares of stock of the Corporation.
(c) No provision of this Article 8 shall be construed to
limit the ability of the Corporation to declare and make additional
distributions to Shareholders out of the assets of the Corporation
legally available for such payment at such time or times as the
Executive Committee may determine.
(d) The Corporation's payment of taxes on behalf of any
Shareholder (by means of withholding or otherwise) shall be considered
a distribution for purposes hereof, and the amount of distributions
that the Shareholder is otherwise entitled to hereunder shall be
adjusted accordingly consistent with Regulations Section
1.1361-1(1)(2)(ii).
F. NONRECOGNITION OF CERTAIN TRANSFERS.
(a) The Corporation will not, nor will it be compelled to,
recognize any Transfer, or issue any certificate representing any
Stock to any person who has not delivered to the Corporation (i) a
written undertaking to be bound by the terms and conditions of this
Agreement, and (ii) for so long as the Corporation's status as an S
corporation continues, a written consent to the treatment of the
Corporation as an S corporation. The Corporation will not, nor will
it be compelled to, recognize any Transfer, or issue any certificate
representing any Stock to any person or entity the Transfer to whom or
to which in the opinion of the Corporation's counsel could disqualify
the Corporation as an S corporation or disqualify it from eligibility
for such status.
(b) The Corporation will not, nor be compelled to,
recognize any Transfer made other than in accordance with the terms of
the Articles of Incorporation, nor will it issue any certificate
representing the Stock to any person who has received such Stock in a
Transfer made other than in accordance with the terms of these
Articles of Incorporation.
G. LEGENDS ON SHARE CERTIFICATES. The following legend shall
be imprinted conspicuously on the face of each certificate
representing shares of Stock:
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NOTICE IS HEREBY GIVEN THAT THE TRANSFER (INCLUDING, WITHOUT
LIMITATION, THE SALE, ASSIGNMENT, EXCHANGE, GIFT, DONATION,
PLEDGE, MORTGAGE, HYPOTHECATION OR OTHER ENCUMBRANCE OR OTHER
DISPOSITION) OF THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO AND RESTRICTED BY THE PROVISIONS OF THE
ARTICLES OF INCORPORATION OF THE CORPORATION, AND ALL OF THE
PROVISIONS OF SUCH ARTICLES ARE INCORPORATED BY REFERENCE IN THIS
CERTIFICATE, SPECIFICALLY INCLUDING, BUT NOT LIMITED TO, THOSE
PROVISIONS OF THE ARTICLES RELATING TO THE CORPORATION'S TAX
STATUS AS AN S CORPORATION.
H. ELECTION TO CLOSE BOOKS. The Corporation, in the event the
Executive Committee so determines, shall consent to close the books of
the Corporation pursuant to Section 1377(a)(2) of the Code whenever a
Shareholder sells all of his or her Stock on a day other than the last
day of the Corporation's fiscal year if all "affected shareholders"
(as defined in Section 1377(a)(2)(B) of the Code) shall consent
thereto.
4. A new Article 10 is hereby added to the Articles of Incorporation
which shall read in its entirety as follows:
10. FAIR PRICE PROVISION. The stockholder vote required to approve
any Business Combination (as hereinafter defined) shall be as set
forth in this Article 10.
A. (1) Except as otherwise expressly provided in section B. of
this Article 10:
(i) any merger or consolidation of the corporation or
any Subsidiary (as hereinafter defined) with (a) any
Interested Shareholder (as hereinafter defined) or (b) any
other corporation (whether or not itself an Interested
Shareholder) which is, or after such merger of consolidation
would be, an Affiliate (as hereinafter defined) of any
Interested Shareholder;
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series
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of transactions) to or with any Interested Shareholder or
any Affiliate of any Interested Shareholder of all or
substantially all of the assets of the corporation or any
Subsidiary;
(iii) the issuance or transfer by the corporation or
any Subsidiary (in one transaction or a series of
transactions) of any securities of the corporation or any
Subsidiary to any Interested Shareholder or any Affiliate of
any Interested Shareholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $2,000,000 or more;
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or
on behalf of any Interested Shareholder or any Affiliate of
any Interested Shareholder; or
(v) any reclassification of securities (including
any reverse stock split), or recapitalization of the
corporation, or any merger or consolidation of the
corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
involving any Interested Shareholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the corporation or any Subsidiary
which is directly or indirectly owned by any Interested
Shareholder or any Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least
ninety-five percent (95%) of all of the then-outstanding shares
of the capital stock of the corporation, voting together as a
single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required or that a
lesser percentage may be specified by law.
(2) The term "Business Combination" as used in this Article
Ten shall mean any transaction which is referred to in any one or
more of subparagraphs (i) through (v) of paragraph (1) of this
section A.
B. The provisions of section A. of this Article Ten shall not
be applicable to any particular Business Combination, and such
Business
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Combination shall require only such affirmative vote as is required by
law or any other provision of the corporation's Articles of
Incorporation or Bylaws if the conditions specified below are met:
(1) the "Continuing Directors" (as hereinafter defined) of
the corporation by at least an eighty percent (80%) vote:
(i) have expressly approved in advance the
acquisition of the outstanding shares of capital stock of
the corporation that caused such Interested Person to become
an Interested Person, or
(ii) have expressly approved such Business
Combination either in advance of or subsequent to such
Interested Person's having become an Interested Person; or
(2) the cash or fair market value (as determined by at
least a majority of the Continuing Directors) of the property,
securities or "Other Consideration to the Received" (as
hereinafter defined) per share paid by the Interested Person to
holders of the capital stock of the corporation in the Business
Combination is not less than the "Fair Price" (as hereinafter
defined) paid by the Interested Person in acquiring any of its
holdings of the corporation's capital stock.
C. For the purposes of this Article 10:
(1) A "person' shall mean any individual, firm, corporation
or other entity.
(2) "Interested Shareholder" shall mean any person (other
than the corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or
indirectly, of more than ten percent (10%) of the shares of
any class of the outstanding capital stock of the
corporation;
(ii) is an Affiliate of the corporation and at any
time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or
indirectly, of ten percent (10%) or more of the shares of
any class of the outstanding capital stock of the
corporation; or
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(iii) is an assignee of or has otherwise succeeded to
any shares of any class of the outstanding capital stock of
the corporation which were at any time within the two-year
period immediately prior to the date in question
beneficially owned by any Interested Shareholder, if such
assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
(3) A person shall be a "beneficial owner" of any capital
stock of the corporation:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly;
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b)
the right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of such capital
stock.
(4) For the purposes of determining whether a person is an
Interested Shareholder pursuant to paragraph (2) of this section
C., the number of shares of capital stock of the corporation
deemed to be outstanding shall include shares deemed owned
through application of paragraph (3) of this section C. but shall
not include any other shares of capital stock which may be
issuable pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options, or
otherwise.
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(5) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934.
(6) "Subsidiary" means any corporation of which a majority
of any class of equity security is owned, directly or indirectly,
by the corporation; provided, however, that for the purposes of
the definition of Interested Shareholder set forth in paragraph
(2) of this section C., the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security
is owned directly or indirectly, by the corporation.
(7) "Continuing Director" means any member of the Board of
Directors of the corporation (the "Board") who is unaffiliated
with the Interested Shareholder and was a member of the Board
prior to the time that the Interested Shareholder became an
Interested Shareholder, and any successor of a Continuing
Director who is unaffiliated with the Interested Shareholder and
is recommended to succeed a Continuing Director by a majority of
Continuing Directors then on the Board.
(8) "Fair Price" shall mean the following: If there is
only one class of capital stock of the corporation issued and
outstanding, the Fair Price shall mean the highest price that can
be determined by a majority of the Continuing Directors to have
been paid at any time by the Interested Person for any share or
shares of that class of capital stock. If there is more than one
class of capital stock of the corporation issued and outstanding,
the Fair Price shall mean with respect to each class and series
of capital stock of the corporation, the amount determined by a
majority of the Continuing Directors to be the highest per share
price equivalent of the highest price that can be determined to
have been paid at any time by the Interested Person for any share
or shares of any class or series of capital stock of the
corporation. In determining the Fair Price, all purchases by the
Interested Person shall be taken into account regardless of
whether the shares were purchased before or after the Interested
Person became an Interested Person. Also, the Fair Price shall
include any brokerage commissions, transfer taxes and soliciting
dealers' fees paid by the Interested Person with respect to the
shares of capital stock of the corporation acquired by the
Interested Person. In the case of any Business Combination with
an Interested Person, a majority of the Continuing Directors
shall determine the Fair Price for each class and series of the
Capital stock of the corporation.
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The Fair Price shall also include interest compounded annually
from the date an Interested Person became an Interested Person
through the date the Business Combination is consummated at the
rate of seven percent (7%) per annum less the aggregate amount of
any cash dividends paid, and the fair market value of any
dividends paid in other than cash, on each share of capital stock
in the same time period, in an amount up to but not exceeding the
amount of interest so payable per share of capital stock.
(9) "Other Consideration to be Received" shall include,
without limitation, Common Stock or other capital stock of the
corporation retained by its existing stockholders other than
Interested Persons or other parties to such Business Combination
in the event of a Business Combination in which the corporation
is the surviving corporation.
D. A majority of the Board of Directors of the corporation
shall have the power and duty to determine, on the basis of
information known to them after reasonable inquiry, whether a person
is an Interested Shareholder. Once the Board has made a determination
pursuant to the preceding sentence that a person is an Interested
Shareholder, a majority of the number of Directors who are Continuing
Directors shall have the power and duty to interpret all of the terms
and provisions of this Article Ten, and to determine on the basis of
information known to them after reasonable inquiry all facts
necessary to determine compliance with this Article Ten, including,
without limitation, (1) the number of shares of capital stock of the
corporation beneficially owned by any person, (2) whether a person is
an Affiliate or Associate of another, and (3) whether the applicable
conditions set forth in section B. have been met with respect to any
Business Combination.
E. Nothing contained in this Article Ten shall be construed to
relieve any Interested Shareholder from any fiduciary obligation
imposed by law.
F. Notwithstanding any other provisions of the corporation's
Articles of Incorporation or Bylaws or any provision of law which
might otherwise permit a lesser vote or no vote, but in addition to
any affirmative vote of the holders of any particular class or series
of the capital stock of the corporation required by law, or by the
corporation's Articles of Incorporation or Bylaws, the affirmative
vote of the holders of at least ninety-five percent (95%) of the
then-outstanding shares of the capital stock of the corporation,
voting together as a single class, shall be required to alter, amend
or repeal this Article.
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5. Current Articles 7, 8 and 9 of the Articles of Incorporation shall be
renumbered Articles 9, 11 and 12, respectively, but shall otherwise remain
unchanged.
ARTICLE TWO
Each such amendment made by the Restated Articles of Incorporation has been
effected in conformity with the provisions of the Texas Business Corporation Act
and such Restated Articles of Incorporation and each such amendment made by the
Restated Articles of Incorporation were duly adopted by the shareholders of the
Corporation on the ____ day of ___________, 1998.
ARTICLE THREE
The number of shares outstanding was 1,000; the number of shares entitled
to vote on the Restated Articles of Incorporation as so amended was 1,000; the
number of shares voted for such Restated Articles as so amended was 1,000; and
the number of shares voted against such Restated Articles as so amended was -0-.
ARTICLE FOUR
The Articles of Incorporation and all amendments and additions thereto are
hereby superseded by the following Restated Articles of Incorporation which
accurately copy the entire text thereof and as amended as above set forth:
1. NAME. The name of the Corporation is FIRST COMMAND FINANCIAL
CORPORATION.
2. DURATION. The period of its duration is perpetual.
3. PURPOSES. The Corporation is being organized under the Texas
Business Corporation Act for the purpose of carrying out any lawful purposes.
4. SHARES. The aggregate number of shares which the Corporation is
authorized to issue is ten million ten thousand (10,010,000) shares, each having
a par value of $.01. The shares are to be designated as Common Stock and will
have identical rights and privileges in every respect, with the sole exception
that ten thousand (10,000) of such shares shall be designated as Voting Common
Stock and shall possess the right to vote on all matters that may come before
the stockholders of the Corporation, and ten million (10,000,000) of such shares
shall be designated as Nonvoting Common Stock and shall not possess the right to
vote on any matter except as specifically provided by the Texas Business
Corporation Act.
5. COMMENCEMENT OF BUSINESS. The Corporation will not commence
business until it has received for the issuance of its shares consideration
having a minimum value of One
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Thousand and No/100 Dollars ($1,000.00) and consisting only of labor done or
money or property actually received.
6. NO PREEMPTIVE RIGHTS. No holder of any shares of any class of
stock of the Corporation shall, as such holder, have any preemptive or
preferential right to receive, purchase or subscribe to additional, unissued or
treasury shares of any class of stock of the Corporation, or securities,
obligations or evidences of indebtedness of the Corporation convertible into or
carrying a right to subscribe to or purchase such shares, or any other
securities that may hereafter from time to time be issued or sold by the
Corporation.
7. RESTRICTIONS ON TRANSFER OF SHARES. Except as otherwise
expressly provided and authorized herein, a Shareholder shall not Transfer (as
defined below) any shares of Stock that he or she now or hereafter owns. The
parties hereto understand that the Corporation may refuse to Transfer the shares
of Stock on its books and records when that Transfer would not be in compliance
with the terms hereof, and that any attempted Transfer in violation hereof shall
be null and void.
A. DEFINITIONS. As used herein:
(1) CODE. The term "CODE" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
(2) DETERMINATION DATE. The term "DETERMINATION DATE"
shall mean the day upon which, in the case of a purchase of Stock hereunder, the
Disposition Notice referred to in Section 3.1 has been received by the
Corporation, except that with respect to a Disposition Notice made in connection
with the death of a Shareholder or the termination of a Shareholder's marital
relationship, "DETERMINATION DATE" shall mean the date of that death or
termination.
(3) DISPOSING SHAREHOLDER. The term "DISPOSING
SHAREHOLDER" shall mean that Shareholder (or the surviving spouse of or estate
of a deceased Shareholder in the case of a Shareholder's death) required to
tender shares of Stock to the Corporation upon the occurrence of an Operative
Event with respect to that Shareholder.
(4) DISPOSITION NOTICE. The term "DISPOSITION NOTICE"
shall mean the written notice required by paragraph C.(1) below to be made by
the Disposing Shareholder to the Corporation or allowed by paragraph C.(1) to be
made by the Corporation to the Disposing Shareholder.
(5) OPERATIVE EVENT. The term "OPERATIVE EVENT" shall
mean, with respect to any Shareholder, any of the following events:
(a) Any threatened or actual Transfer of Stock in
any manner whatsoever by that Shareholder;
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(b) The death of that Shareholder;
(c) The termination of the marital relationship of
that Shareholder by death or divorce if that Shareholder does not succeed to his
or her spouse's community interest in the Stock or the entering into of any
property settlement arrangement or agreement in connection therewith, pursuant
to which that Shareholder's interest in his or her Stock is to be diluted,
lessened, encumbered or impaired;
(d) Any threatened or actual (i) bankruptcy or
insolvency of that Shareholder or (ii) institution of legal proceedings because
or by reason of the bankruptcy or insolvency of that Shareholder;
(e) The termination of the status of that
Shareholder as a duly licensed Texas life insurance agent;
(f) The cessation of that Shareholder as a duly
authorized agent of the Corporation pursuant to a current written agency
agreement, except that with respect to an involuntary termination as a duly
authorized agent of the Corporation, such termination shall require approval by
a vote of eighty percent (80%) of the Board of Directors of the Corporation;
(g) The change in status of that Shareholder to a
"non-resident alien" as defined in the Code; or
(h) Any threatened or actual levy by a creditor or
claimant upon the shares of Stock held by that Shareholder or any other seizure
or sale by legal process, if it is determined by legal counsel for the
Corporation that such levy is made in good faith and based upon a bona fide
claim.
It shall not be a requirement hereunder that the Executive Committee of the
Board of Directors of the Corporation (the "EXECUTIVE COMMITTEE") make a
determination in every instance that an Operative Event has so occurred with
respect to any Shareholder, but such determination shall be made in those
instances in which there may be some question as to whether an Operative Event
did in fact occur. Upon such determination by the Executive Committee that an
Operative Event has in fact occurred, in order to inform the Shareholder of such
occurrence, the Corporation may deliver a written notice to the Shareholder or
his or her legal representative stating that (i) such an Operative Event has
occurred, (ii) the date thereof and (iii) the reasons for the determination.
The Shareholder affected or his or her legal representative shall thereupon be
required to tender to the Corporation for sale his or her Stock to the
Corporation upon the terms and conditions as set forth in paragraph C. below.
(6) TRANSFER. The term "TRANSFER" shall mean, as a noun, a
transfer, sale, assignment, exchange, gift, donation, pledge, mortgage,
hypothecation or other
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encumbrance or other disposition, and as a verb, to transfer, sell, assign,
exchange, gift, donate, pledge, mortgage, hypothecate or otherwise encumber or
otherwise dispose.
B. RESTRICTIONS ON TRANSFER OF SHARES.
Except as otherwise expressly provided and authorized in the Articles of
Incorporation, a Shareholder shall not Transfer any shares of Stock that he or
she now or hereafter owns. The Corporation may refuse to Transfer the shares of
Stock on its books and records when that Transfer would not be in compliance
with the terms of the Articles of Incorporation, and any attempted Transfer in
violation hereof shall be null and void.
(1) RESTRICTIONS ON TRANSFER.
(a) No Shareholder may Transfer, and no person may
acquire, the legal or beneficial ownership of any share of Stock now or
hereafter owned by him or her if that Transfer or acquisition would cause the S
corporation status of the Corporation to terminate. Specifically, no Transfer
may be made to, and no acquisition may be made by, any person who would cause
the Corporation to have more than the maximum permitted number of shareholders
under the Code as then in effect or to any person that is not eligible to be a
shareholder of an S corporation under the provisions of the Code.
(b) In addition to the requirements of paragraph
B.(1)(a) above, no Transfer of shares of Stock shall be permitted, and no
purported Transfer shall be effective, until the transferee has followed all of
the requirements of paragraph C. below.
(c) Notwithstanding B.(1)(a) and (b) above, with
the prior written consent of the Executive Committee, a Shareholder may pledge,
mortgage, hypothecate or otherwise encumber his or her Stock subject to such
terms, conditions and restrictions as the Executive Committee shall determine to
be appropriate in the exercise of its sole discretion.
(2) EFFECT OF PURPORTED TRANSFER. Any purported Transfer
or acquisition of shares of Stock in violation of paragraph B.(1) above shall be
null and void. The purported transferee shall have no interest in any of the
shares of Stock purported to be transferred. Any such purported Transfer or
acquisition may and should be enjoined by the Corporation in the event that the
Executive Committee so determines.
(3) BENEFICIAL OWNERSHIP. Any purported Transfer in
violation hereof will not affect the beneficial ownership of the shares of
Stock. Thus, the Shareholder making the purported transfer will retain the
right to vote and the right to receive distributions and liquidation proceeds
related to those shares. Additionally, a Shareholder making the purported
Transfer shall continue to report the portion of income or loss allocated by the
Corporation in accordance with the provisions of the Code.
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C. TENDER REQUIREMENT.
(1) TENDER FOR SALE. Upon the occurrence of any Operative
Event with respect to a Shareholder, the Disposing Shareholder, or his or her
legal representative, as the case may be, must tender for sale all shares of
Stock owned by the Disposing Shareholder. In the case of an Operative Event,
the Disposing Shareholder is required to mail a Disposition Notice to the
Corporation no less than one hundred twenty (120) days prior to the date of the
proposed Transfer. Alternatively, upon an Operative Event of a Disposing
Shareholder, the Corporation may mail a Disposition Notice to that Disposing
Shareholder. Upon its receipt or its mailing of a Disposition Notice, the
Corporation shall have the exclusive right and option, exercisable at the sole
discretion of the Executive Committee, as described in paragraph C.(2) to buy
such shares of Stock, or any portion thereof, as provided herein. The
Disposition Notice shall be sent by certified mail, if to the Corporation, to
the attention of the president and the general counsel of the Corporation at the
principal address of the Corporation, or if to the Disposing Shareholder at his
or her last known address. In the event that the Operative Event involves a
proposed Transfer pursuant to an offer to purchase or sell all or any portion of
a Shareholder's Stock received or made by such Shareholder from or to a third
party, the Disposition Notice shall set forth the full details of such proposed
Transfer including, among other things, the name of the offeror or proposed
purchaser or transferee, the number of shares covered by the offer, the purchase
price per share, the terms of payment, whether for cash or credit (and if by
credit, the maturity and interest rate), any and all other consideration being
received or paid in connection with such proposed Transfer, and any and all
other terms, conditions and details of such offer.
(2) PURCHASE BY CORPORATION. Upon delivery of a valid
Disposition Notice, the Corporation shall have the exclusive right and option,
exercisable at any time within one hundred twenty (120) days after the mailing
of a Disposition Notice, to purchase all or part of the Disposing Shareholder's
shares of Stock at the Purchase Price and on the terms and conditions set forth
herein. If the Corporation chooses to exercise the option (in whole or in
part), it shall give written notification (the "CORPORATE EXERCISE NOTICE") to
that effect to the Disposing Shareholder or his or her legal representative, as
the case may be, setting forth the number and type of shares being purchased and
the price and terms and conditions, in accordance with this Agreement, and such
sale and purchase shall be closed on the one hundred twentieth (120th) day after
the Corporate Exercise Notice is sent to the Disposing Shareholder or to his or
her legal representative (or, if such date is not a business day, on the first
business day thereafter).
(3) THIRD PARTY BOUND. If, in accordance with this
paragraph C., shares of Stock are Transferred to a third party, the Disposing
Shareholder shall require, as a condition of the sale to such third party, that
the purchaser or transferee of his or her shares will become a party to this
Agreement, but only if the Corporation so desires and agrees to such purchaser
becoming subject to this Agreement in a written notice sent to the Disposing
Shareholder. All shares of Stock retained by the Disposing Shareholder shall
remain subject to all of the provisions of the Articles of Incorporation.
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D. INSURANCE. In order to facilitate the purchase of shares of
Stock upon the death of a Shareholder, the Corporation may, but is not required
to, apply for and obtain separate policies of insurance upon the lives of each
of the Shareholders payable to the Corporation; provided, however, that the
purchase price of the shares of Stock and the manner and terms of payment
therefor shall be governed in all respect by paragraphs E and F below. The
Corporation will pay the premiums upon such policies and shall provide proof of
payment of such premiums to any Shareholder, upon his or her request. The
Corporation shall be the sole owner, and shall have the sole right to designate
the beneficiary or beneficiaries, of such policy or policies.
E. PURCHASE PRICE.
(1) PURCHASE PRICE. In the case of all Operative Events,
the purchase price per share of Stock to be paid by the Corporation shall be the
Purchase Price, as defined in paragraph (2) below.
(2) AGREED VALUE. The Corporation, at least annually,
shall advise the Shareholders in writing of the price per share of Stock which
the Corporation will pay to any and all Disposing Shareholders for shares
tendered pursuant hereto. Each such determination of the "PURCHASE PRICE" shall
become effective on the date specified by the Corporation and shall remain
effective until the next determination of a new Purchase Price and shall be
proportionately adjusted for any subsequent increase or decrease of the number
of issued shares of Stock resulting from a subdivision or consolidation of
shares or other adjustment, or the payment of a stock dividend or other increase
or decrease in the number of shares of Stock outstanding, effective without the
receipt of consideration by the Corporation. It is specifically agreed that
this Purchase Price shall be the purchase price paid by the Corporation
hereunder to any Disposing Shareholder.
F. PAYMENT OF PURCHASE PRICE.
(1) TRANSFER AND DELIVERY OF STOCK. At the closing, or at
some other time or place designated by all of the parties, the Disposing
Shareholder or his or her legal representative shall deliver to the Corporation
in exchange for the concurrent payment of the Purchase Price, the certificates
of shares of the Stock being purchased, free and clear of all liens, claims,
security interests and encumbrances, duly endorsed for transfer and bearing any
necessary documentary stamps, and such assignments, certificates of authority,
tax releases, consents to transfer by a fiduciary or representative of the
Disposing Shareholder, and any instruments in evidence of the title of the
Shareholder and of the parties' compliance with this Agreement, the federal and
state securities laws, and any other agreements or regulations as may be
recommended by counsel for the Corporation.
(2) METHOD. The manner of payment of the Purchase Price
may be, at the option of the Corporation, either (i) the payment of the entire
Purchase Price, by cash or by certified, bank cashier, or treasurer's check, or
(ii) down payment of twenty percent (20%)
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of such Purchase Price in cash at closing and delivery of a promissory note or
promissory notes for the balance, in non-negotiable form, to the order of the
Disposing Shareholder or his or her legal representative, pursuant to which the
Corporation agrees to pay the balance in four (4) equal annual installments,
with interest on the unpaid balance at the lesser of (i) the rate of the prime
rate published in THE WALL STREET JOURNAL per annum on the date of the closing
or (ii) the highest non-usurious rate permitted by applicable law, with each
installment of principal and interest payable annually on each anniversary date
of the making of the promissory note, and with the right of the Corporation to
prepay at any time without premium or penalty. The promissory note shall be
secured by the pledge of Stock purchased thereby, with executed security
instruments covering such pledged Stock, unless such pledge arrangement is
waived by the Disposing Shareholder or his or her legal representative, as the
case may be. Notwithstanding anything herein to the contrary, in the event that
the Disposing Shareholder dies, the down payment provided for in clause (ii)
above shall not be less than the proceeds received by the Corporation under the
insurance, if any, described in paragraph D above.
8. SUBCHAPTER S PROVISIONS.
A. SUBCHAPTER S REPRESENTATION. Each Shareholder acknowledges
that the Corporation has made a valid election to be treated, for federal and
state income tax purposes, as an S corporation. Each Shareholder shall provide
to the Corporation, immediately upon the Corporation's request, such properly
signed consents or other documents as, in the opinion of the Corporation, may be
necessary or useful to maintain the Corporation's status as an S corporation,
and each Shareholder covenants that he or she will do nothing to interfere with
the Corporation's maintenance of its status as an S corporation.
B. REVOCATION OF ELECTION. In the event that the Shareholders,
by the affirmative vote of at least eighty percent (80%) of the votes which all
of the Shareholders are entitled to cast, determine to terminate the
Corporation's status as an S corporation, and thereafter each Shareholder is
provided with written notice of such determination, within sixty (60) days after
the delivery of such notice, each Shareholder, if requested, will execute a
consent to such revocation in the form prescribed by the Internal Revenue
Service or any relevant state tax authority and shall deliver such consent to
the Secretary of the Corporation. If the Corporation's S status is terminated
under this paragraph B., in the event that the Executive Committee so
determines, the Shareholders and the Corporation shall elect, if applicable, to
have Section 1362(e)(2) of the Code not apply, as provided in Section 1362(e)(3)
of the Code. Any person who was a Shareholder at any time during the S short
year (as defined in Section 1362(e)(1)(A) of the Code) or who is a Shareholder
on the first day of the C short year (as defined in Section 1362(e)(1)(B) of the
Code) shall consent to such election.
C. INADVERTENT TERMINATION OF SUBCHAPTER S ELECTION. In the
event of a termination of the Corporation's status as an S corporation other
than pursuant to paragraph B. above, if the Corporation and the Shareholders
remaining after such termination desire that the Corporation's status as an S
corporation be continued, the Corporation and all Shareholders as of and/or
after the terminating event shall use their best efforts to obtain from the
Internal
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Revenue Service a waiver of the terminating event on the ground of inadvertency.
The Corporation and the Shareholders shall take such steps, and make such
adjustments, as may be required by the Internal Revenue Service pursuant to
Section 1362(f)(3) and (4) of the Code. If a Shareholder caused the terminating
event to occur, he or she shall bear the expense of procuring the waiver,
including the legal, accounting and tax costs of taking such steps, and of
making such adjustments as may be required. If the inadvertent termination is
not waived by the Internal Revenue Service and the Corporation's S status is
permanently terminated, in the event that the Executive Committee so determines,
the Corporation and the Shareholders shall make the election under Section
1362(e)(3) of the Code contemplated by paragraph B. above.
D. PROVISION IN SHAREHOLDER WILLS. Each Shareholder shall use
his or her best efforts to include in his or her will a direction and
authorization to his or her executor in substantially the following form:
(a) My Executor is hereby directed and authorized to hold
stock of an S Corporation, as defined in the Code (hereinafter "S Stock"), to
make an election to have any corporation treated as an S Corporation, to enter
into agreements with other shareholders or with the corporation relating to a
transfer (including, without limitation, a sale, assignment, exchange, gift,
donation, mortgage, hypothecation or other encumbrance or other disposition (a
"TRANSFER") of S Stock or the management of the S Corporation, and to allocate
amounts received and the tax on undistributed income between income and
principal. During the administration of my estate, my Executor may allocate the
tax deductions and credits arising from ownership of S Stock between income and
principal. In making any such allocations, my Executor shall consider that the
beneficiary is to have enjoyment of the property at least equal to that
ordinarily associated with an income interest and in all events shall provide
the required beneficial enjoyment to the beneficiary until such time as the S
Stock is distributed to him or her.
(b) Any beneficiary of my estate who receives stock in an S
Corporation as part of his or her distribution shall, prior to such
distribution, enter into a written agreement with said S Corporation (i) to
consent to any election to qualify the S Corporation as such; (ii) to do nothing
to interfere with the S Corporation's maintenance of its status as such; (iii)
not to Transfer the S Stock to any transferee who does not agree to execute a
similar consent; (iv) not to Transfer the S Stock in such manner as will cause
the S Corporation to lose its status as an S Corporation under the then
applicable federal and state income tax statutes and regulations; and (v) if S
status is inadvertently terminated, to join in any endeavor to obtain a waiver
of the terminating event on the grounds of inadvertency from the Internal
Revenue Service if the S Corporation desires that the S status should continue.
(c) Any S Stock distributed to a beneficiary shall bear an
appropriate legend on the stock certificate stating that the Transfer of the
stock is subject to and restricted to the extent set forth in subparagraph (b)
above.
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Notwithstanding the foregoing requirement, the failure of a Shareholder so to
direct his or her executor shall not affect the validity of these Articles of
Incorporation.
E. DISTRIBUTIONS TO PAY TAX LIABILITIES.
(a) For the period during which the Corporation is an S
Corporation (the "S CORP PERIOD"), the Corporation shall promptly declare and
make distributions during the S Corp Period to all Shareholders in a timely
manner to allow the federal income tax (including, without limitation, estimated
tax payments) attributable to the Corporation's taxable income during the S Corp
Period that is passed through the Corporation to the Shareholders to be paid by
such Shareholders when due (each, a "DUE DATE"). To satisfy this requirement,
during the S Corp Period, the Corporation shall pay on or before five (5) days
prior to each Due Date, an amount so that the cumulative amount of distributions
during the S Corp. Period that have been designated by the Corporation as "TAX
DISTRIBUTIONS" are at least equal to the excess of (i) the sum of the products
of (A) the Corporation's positive taxable income (as determined under Section
1366(a) of the Code) attributed to its Shareholders during each of its taxable
periods during the S Corp Period multiplied by (B) the sum of the highest
federal individual income tax rates in effect for each such taxable period
(without regard to exemptions or phase-outs of lower tax rates, but with
consideration of the character of any item and the deductibility of state taxes
for federal income tax purposes), over (ii) the sum of the products of (A) the
Corporation's negative taxable income (as determined under Section 1366(a) of
the Code) attributable to its Shareholders during each of its taxable periods
during the S Corp Period multiplied by (B) the sum of the highest federal
income tax rates in effect for each such taxable period (without regard to
exemptions or phase-outs of lower tax rates, but with consideration of the
character of any item and the deductibility of state taxes for federal income
tax purposes). The Corporation's obligation to declare and make any such
distributions to the Shareholders is subject to the restrictions governing
dividends under the Texas Business Corporation Act and such other pertinent
governmental or contractual restrictions as are now or may hereafter become
effective. If the Corporation does not have sufficient funds available to
permit it lawfully to declare and pay such distributions, the Shareholders
and the Corporation shall take such action, adopt such resolutions, and cause
such certificates and other documents to be filed as may be necessary to
create sufficient funds to permit the making of such distributions, whereupon
the Corporation shall declare and pay such distributions.
(b) No provision of this Article 8 shall cause the total
distributions made with respect to any outstanding shares of stock of the
Corporation to differ from the amounts paid with respect to any other
outstanding shares of stock of the Corporation.
(c) No provision of this Article 8 shall be construed to
limit the ability of the Corporation to declare and make additional
distributions to Shareholders out of the assets of the Corporation legally
available for such payment at such time or times as the Executive Committee may
determine.
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(d) The Corporation's payment of taxes on behalf of any
Shareholder (by means of withholding or otherwise) shall be considered a
distribution for purposes hereof, and the amount of distributions that the
Shareholder is otherwise entitled to hereunder shall be adjusted accordingly
consistent with Regulations Section 1.1361-1(1)(2)(ii).
F. NONRECOGNITION OF CERTAIN TRANSFERS.
(a) The Corporation will not, nor will it be compelled to,
recognize any Transfer, or issue any certificate representing any Stock to any
person who has not delivered to the Corporation (i) a written undertaking to be
bound by the terms and conditions of this Agreement, and (ii) for so long as the
Corporation's status as an S corporation continues, a written consent to the
treatment of the Corporation as an S corporation. The Corporation will not, nor
will it be compelled to, recognize any Transfer, or issue any certificate
representing any Stock to any person or entity the Transfer to whom or to which
in the opinion of the Corporation's counsel could disqualify the Corporation as
an S corporation or disqualify it from eligibility for such status.
(b) The Corporation will not, nor be compelled to,
recognize any Transfer made other than in accordance with the terms of the
Articles of Incorporation, nor will it issue any certificate representing the
Stock to any person who has received such Stock in a Transfer made other than in
accordance with the terms of these Articles of Incorporation.
G. LEGENDS ON SHARE CERTIFICATES. The following legend shall
be imprinted conspicuously on the face of each certificate representing shares
of Stock:
NOTICE IS HEREBY GIVEN THAT THE TRANSFER (INCLUDING, WITHOUT
LIMITATION, THE SALE, ASSIGNMENT, EXCHANGE, GIFT, DONATION, PLEDGE,
MORTGAGE, HYPOTHECATION OR OTHER ENCUMBRANCE OR OTHER DISPOSITION) OF
THE SHARES OF CAPITAL STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO AND RESTRICTED BY THE PROVISIONS OF THE ARTICLES OF INCORPORATION
OF THE CORPORATION, AND ALL OF THE PROVISIONS OF SUCH ARTICLES ARE
INCORPORATED BY REFERENCE IN THIS CERTIFICATE, SPECIFICALLY INCLUDING,
BUT NOT LIMITED TO, THOSE PROVISIONS OF THE ARTICLES RELATING TO THE
CORPORATION'S TAX STATUS AS AN S CORPORATION.
H. ELECTION TO CLOSE BOOKS. The Corporation, in the event the
Executive Committee so determines, shall consent to close the books of the
Corporation pursuant to Section 1377(a)(2) of the Code whenever a Shareholder
sells all of his or her Stock on a day other
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than the last day of the Corporation's fiscal year if all "affected
shareholders" (as defined in Section 1377(a)(2)(B) of the Code) shall consent
thereto.
9. SPECIAL PROVISIONS PERMITTED TO BE SET FORTH IN ARTICLES OF
INCORPORATION:
A. INTERESTED DIRECTORS AND OFFICERS.
(1) If paragraph (2) below is satisfied, no contract or
transaction between the Corporation and any of its directors or officers (or any
other corporation, partnership, association or other organization in which any
of them directly or indirectly have a financial interest) shall be void or
voidable solely because of this relationship or because of the presence or
participation of such director or officer at the meeting of the Board or
committee authorizing such contract or transaction, or because such person's
votes are counted for such purpose.
(2) Paragraph (1) above will apply only if:
(a) The contract or transaction is fair to the
Corporation as of the time it is authorized or ratified by the Board of
Directors, a committee of the Board, or the shareholders; or
(b) The material facts as to the relationship or
interest of each such director or officer as to the contract or transaction are
known or disclosed: (i) to the shareholders entitled to vote thereon and they
nevertheless in good faith authorize or ratify the contract or transaction by a
majority of the shares present, each such interested person to be counted for
quorum and voting purposes; or (ii) to the Board of Directors or the committee,
and the Board or committee nevertheless in good faith authorizes or ratifies the
contract or transaction by a majority of the disinterested directors present,
each such interested director to be counted in determining whether a quorum is
present but not in calculating the majority necessary to carry the vote.
B. LIMITATION OF LIABILITY. No Director of the Corporation
shall be personally liable to the Corporation or its shareholders for monetary
damages for any act or omission in the Director's capacity as a director, except
to the extent otherwise expressly provided by statute of the State of Texas.
Any repeal or modification of this Article shall be prospective only, and shall
not adversely affect any limitation of the personal liability of a Director of
the Corporation existing at the time of the repeal or modification.
C. INDEMNIFICATION. The Corporation shall, to the maximum
extent permitted from time to time under the laws of the State of Texas,
indemnify and upon request shall advance expenses to any person who is or was a
party to any threatened, pending, or completed action, suit, proceeding, or
claim, whether civil, criminal, administrative or investigative, by reason of
the fact that he or she is or was or has agreed to be a trustee, director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a trustee,
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director, officer, partner, venturer or proprietor of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred in connection with the investigation,
preparation to defend or defense of any such action, suit, proceeding or claim.
Such indemnification shall not be exclusive of any other indemnification rights
arising under any bylaw, agreement, vote of Directors or shareholders or
otherwise and shall inure to the benefit of the heirs and legal representations
of such person. Any repeal or modification of this Article shall be prospective
only, and shall not adversely affect any rights to indemnification of any such
person existing at the time of the repeal or modification.
D. INSURANCE. The Corporation may purchase and maintain
insurance on any person who is or was a trustee, director or officer of the
Corporation or is or was serving at the request of the Corporation as a trustee,
director, officer, partner, venturer or proprietor of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
incurred by him in any such position arising out of his status as such, whether
or not the Corporation would have the power to indemnify him against such
liability under Article 9.C. above.
E. BYLAWS. The power to alter, amend, repeal, or adopt the
Bylaws is hereby vested in the Board of Directors, subject to repeal or change
by action of the Shareholders.
F. NON-CUMULATIVE VOTING. At each election for Directors,
every shareholder entitled to vote at such election shall have the right to vote
in person or by proxy the number of shares owned by him for as many persons as
there are Directors to be elected for whose election he has a right to vote. No
shareholder shall have the right to cumulate his votes in any election of
Directors.
G. SHAREHOLDER CONSENT. It is hereby provided that, in
accordance with Article 9.10.A of the Texas Business Corporation Act, any action
required to be taken at any annual or special meeting of shareholders, or any
action which may be taken at any annual or special meeting of shareholders, may
be taken without a meeting, without prior notice, and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holder or holders of shares having not less than the minimum
number of votes that would be necessary to take such action at a meeting at
which the holders of all shares entitled to vote on the action were present and
voted.
10. FAIR PRICE PROVISION. The stockholder vote required to approve
any Business Combination (as hereinafter defined) shall be as set forth in this
Article 10.
A. (1) Except as otherwise expressly provided in section B. of
this Article 10:
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(i) any merger or consolidation of the corporation
or any Subsidiary (as hereinafter defined) with (a) any Interested Shareholder
(as hereinafter defined) or (b) any other corporation (whether or not itself an
Interested Shareholder) which is, or after such merger of consolidation would
be, an Affiliate (as hereinafter defined) of any Interested Shareholder;
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of transactions)
to or with any Interested Shareholder or any Affiliate of any Interested
Shareholder of all or substantially all of the assets of the corporation or any
Subsidiary;
(iii) the issuance or transfer by the corporation or
any Subsidiary (in one transaction or a series of transactions) of any
securities of the corporation or any Subsidiary to any Interested Shareholder or
any Affiliate of any Interested Shareholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate fair market value
of $2,000,000 or more;
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or on behalf of any
Interested Shareholder or any Affiliate of any Interested Shareholder; or
(v) any reclassification of securities (including
any reverse stock split), or recapitalization of the corporation, or any merger
or consolidation of the corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving any Interested
Shareholder) which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the corporation or any Subsidiary which is directly or
indirectly owned by any Interested Shareholder or any Affiliate of any
Interested Shareholder;
shall require the affirmative vote of the holders of at least ninety-five
percent (95%) of all of the then-outstanding shares of the capital stock of the
corporation, voting together as a single class. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required or that a lesser
percentage may be specified by law.
(2) The term "Business Combination" as used in this Article
Ten shall mean any transaction which is referred to in any one or more of
subparagraphs (i) through (v) of paragraph (1) of this section A.
B. The provisions of section A. of this Article Ten shall not
be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law or
any other provision of the corporation's Articles of Incorporation or Bylaws if
the conditions specified below are met:
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(1) the "Continuing Directors" (as hereinafter defined) of
the corporation by at least an eighty percent (80%) vote:
(i) have expressly approved in advance the
acquisition of the outstanding shares of capital stock of the corporation that
caused such Interested Person to become an Interested Person, or
(ii) have expressly approved such Business
Combination either in advance of or subsequent to such Interested Person's
having become an Interested Person; or
(2) the cash or fair market value (as determined by at
least a majority of the Continuing Directors) of the property, securities or
"Other Consideration to the Received" (as hereinafter defined) per share paid by
the Interested Person to holders of the capital stock of the corporation in the
Business Combination is not less than the "Fair Price" (as hereinafter defined)
paid by the Interested Person in acquiring any of its holdings of the
corporation's capital stock.
C. For the purposes of this Article 10:
(1) A "person' shall mean any individual, firm, corporation
or other entity.
(2) "Interested Shareholder" shall mean any person (other
than the corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or
indirectly, of more than ten percent (10%) of the shares of any class of the
outstanding capital stock of the corporation;
(ii) is an Affiliate of the corporation and at any
time within the two-year period immediately prior to the date in question was
the beneficial owner, directly or indirectly, of ten percent (10%) or more of
the shares of any class of the outstanding capital stock of the corporation; or
(iii) is an assignee of or has otherwise succeeded to
any shares of any class of the outstanding capital stock of the corporation
which were at any time within the two-year period immediately prior to the date
in question beneficially owned by any Interested Shareholder, if such assignment
or succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
(3) A person shall be a "beneficial owner" of any capital
stock of the corporation:
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(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns, directly or indirectly;
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (b) the right to vote pursuant to
any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its Affiliates
or Associates has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of such capital stock.
(4) For the purposes of determining whether a person is an
Interested Shareholder pursuant to paragraph (2) of this section C., the number
of shares of capital stock of the corporation deemed to be outstanding shall
include shares deemed owned through application of paragraph (3) of this section
C. but shall not include any other shares of capital stock which may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(5) "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934.
(6) "Subsidiary" means any corporation of which a majority
of any class of equity security is owned, directly or indirectly, by the
corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in paragraph (2) of this section C., the term
"Subsidiary" shall mean only a corporation of which a majority of each class of
equity security is owned directly or indirectly, by the corporation.
(7) "Continuing Director" means any member of the Board of
Directors of the corporation (the "Board") who is unaffiliated with the
Interested Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any successor of a
Continuing Director who is unaffiliated with the Interested Shareholder and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board.
(8) "Fair Price" shall mean the following: If there is
only one class of capital stock of the corporation issued and outstanding, the
Fair Price shall mean the highest price that can be determined by a majority of
the Continuing Directors to have been paid at any time by the Interested Person
for any share or shares of that class of capital stock. If there is more than
one class of capital stock of the corporation issued and outstanding, the Fair
Price shall mean with respect to each class and series of capital stock of the
corporation, the
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amount determined by a majority of the Continuing Directors to be the highest
per share price equivalent of the highest price that can be determined to have
been paid at any time by the Interested Person for any share or shares of any
class or series of capital stock of the corporation. In determining the Fair
Price, all purchases by the Interested Person shall be taken into account
regardless of whether the shares were purchased before or after the Interested
Person became an Interested Person. Also, the Fair Price shall include any
brokerage commissions, transfer taxes and soliciting dealers' fees paid by the
Interested Person with respect to the shares of capital stock of the corporation
acquired by the Interested Person. In the case of any Business Combination with
an Interested Person, a majority of the Continuing Directors shall determine the
Fair Price for each class and series of the Capital stock of the corporation.
The Fair Price shall also include interest compounded annually from the date an
Interested Person became an Interested Person through the date the Business
Combination is consummated at the rate of seven percent (7%) per annum less the
aggregate amount of any cash dividends paid, and the fair market value of any
dividends paid in other than cash, on each share of capital stock in the same
time period, in an amount up to but not exceeding the amount of interest so
payable per share of capital stock.
(9) "Other Consideration to be Received" shall include,
without limitation, Common Stock or other capital stock of the corporation
retained by its existing stockholders other than Interested Persons or other
parties to such Business Combination in the event of a Business Combination in
which the corporation is the surviving corporation.
D. A majority of the Board of Directors of the corporation
shall have the power and duty to determine, on the basis of information known to
them after reasonable inquiry, whether a person is an Interested Shareholder.
Once the Board has made a determination pursuant to the preceding sentence that
a person is an Interested Shareholder, a majority of the number of Directors
who are Continuing Directors shall have the power and duty to interpret all of
the terms and provisions of this Article Ten, and to determine on the basis of
information known to them after reasonable inquiry all facts necessary to
determine compliance with this Article Ten, including, without limitation, (1)
the number of shares of capital stock of the corporation beneficially owned by
any person, (2) whether a person is an Affiliate or Associate of another, and
(3) whether the applicable conditions set forth in section B. have been met with
respect to any Business Combination.
E. Nothing contained in this Article Ten shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by law.
F. Notwithstanding any other provisions of the corporation's
Articles of Incorporation or Bylaws or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of the capital stock of
the corporation required by law, or by the corporation's Articles of
Incorporation or Bylaws, the affirmative vote of the holders of at least
ninety-five percent (95%) of the then-outstanding shares of the capital stock of
the corporation, voting together as a single class, shall be required to alter,
amend or repeal this Article.
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11. REGISTERED OFFICE AND AGENT. The street address of the
Corporation's initial registered office and the name of its initial registered
agent at such address are as follows:
REGISTERED AGENT REGISTERED ADDRESS
Lamar C. Smith 4100 South Hulen Street
Fort Worth, Texas 76109
12. INITIAL DIRECTORS. The number of directors constituting the
initial board of director(s) is four (4), and the names and addresses of the
persons who will serve as directors until the first annual meeting of the
shareholders and until their successors have been elected and qualified are:
NAME ADDRESS
Lamar C. Smith 4100 South Hulen Street
Fort Worth, Texas 76109
James N. Lanier 4100 South Hulen Street
Fort Worth, Texas 76109
Howard M. Crump 4100 South Hulen Street
Fort Worth, Texas 76109
Carroll H. Payne II 4100 South Hulen Street
Fort Worth, Texas 76109
This instrument is dated and signed effective the _____ day of
________, 1998.
FIRST COMMAND FINANCIAL CORPORATION
By:
-----------------------------------------
LAMAR C. SMITH, Chairman of the Board and
Chief Executive Officer
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AS AMENDED ________, 1998
BYLAWS
OF
FIRST COMMAND FINANCIAL CORPORATION
(A TEXAS CORPORATION)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I: OFFICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 1:1. Registered Office and Agent. . . . . . . . . . . . . . . 1
Sec. 1:2. Other Offices. . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II: SHAREHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . 1
Sec. 2:1. Place of Meetings. . . . . . . . . . . . . . . . . . . . 1
Sec. 2:2. Annual Meetings. . . . . . . . . . . . . . . . . . . . . 2
Sec. 2:3. Special Meetings . . . . . . . . . . . . . . . . . . . . 2
Sec. 2:4. Notice . . . . . . . . . . . . . . . . . . . . . . . . . 2
Sec. 2:5. Order of Business at Meetings. . . . . . . . . . . . . . 2
Sec. 2:6. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sec. 2:7. Majority Vote; Withdrawal of Quorum. . . . . . . . . . . 3
Sec. 2:8. Method of Voting . . . . . . . . . . . . . . . . . . . . 4
Sec. 2:9. Election of Directors. . . . . . . . . . . . . . . . . . 4
Sec. 2:10. Voting List. . . . . . . . . . . . . . . . . . . . . . . 4
Sec. 2:11. Record Date; Closing Transfer Books. . . . . . . . . . . 5
Sec. 2:12. Action Without Meeting . . . . . . . . . . . . . . . . . 6
ARTICLE III: DIRECTORS. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Sec. 3:1. Management . . . . . . . . . . . . . . . . . . . . . . . 6
Sec. 3:2. Place of Meetings. . . . . . . . . . . . . . . . . . . . 7
Sec. 3:3. Regular Meetings; Notice . . . . . . . . . . . . . . . . 7
Sec. 3:4. Special Meetings; Notice . . . . . . . . . . . . . . . . 7
Sec. 3:5. Quorum; Majority Vote. . . . . . . . . . . . . . . . . . 7
Sec. 3:6. Number; Qualification; Election; Term. . . . . . . . . . 8
Sec. 3:7. Removal and Vacancies of Directors . . . . . . . . . . . 9
Sec. 3:8. Advisory Director. . . . . . . . . . . . . . . . . . . . 9
Sec. 3:9. Amendment of this Article III. . . . . . . . . . . . . . 10
Sec. 3:10. Procedure. . . . . . . . . . . . . . . . . . . . . . . . 10
Sec. 3:11. Compensation . . . . . . . . . . . . . . . . . . . . . . 10
Sec. 3:12. Action Without Meeting . . . . . . . . . . . . . . . . . 11
ARTICLE IV: OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sec. 4:1. Number and Qualification . . . . . . . . . . . . . . . . 11
Sec. 4:2. Term and Compensation. . . . . . . . . . . . . . . . . . 12
Sec. 4:3. Removal; Vacancies . . . . . . . . . . . . . . . . . . . 12
Sec. 4:4. Authority. . . . . . . . . . . . . . . . . . . . . . . . 12
Sec. 4:5. Chairman of the Board. . . . . . . . . . . . . . . . . . 13
Sec. 4:6. President. . . . . . . . . . . . . . . . . . . . . . . . 13
Sec. 4:7. Vice President/Senior or Executive Vice President. . . . 13
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Sec. 4:8. Secretary. . . . . . . . . . . . . . . . . . . . . . . . 13
Sec. 4:9. Treasurer. . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V: CERTIFICATES OF STOCK. . . . . . . . . . . . . . . . . . . . . 14
Sec. 5:1. Certificates . . . . . . . . . . . . . . . . . . . . . . 14
Sec. 5:2. Issuance . . . . . . . . . . . . . . . . . . . . . . . . 15
Sec. 5:3. Payment for Shares . . . . . . . . . . . . . . . . . . . 15
Sec. 5:4. No Preemptive Rights . . . . . . . . . . . . . . . . . . 15
Sec. 5:5. Lien . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Sec. 5:6. Lost, Stolen, or Destroyed Certificates. . . . . . . . . 16
Sec. 5:7. Registered Owner . . . . . . . . . . . . . . . . . . . . 16
Sec. 5:8. Registration of Transfer . . . . . . . . . . . . . . . . 17
ARTICLE VI: EXECUTIVE COMMITTEE . . . . . . . . . . . . . . . . . . . . . 17
Sec. 6:1. Designation; Authority; Responsibility . . . . . . . . . 17
Sec. 6:2. Procedure; Removal; Vacancies. . . . . . . . . . . . . . 18
Sec. 6:3. Meetings; Quorum; Majority Vote. . . . . . . . . . . . . 18
Sec. 6:4. Action Without Meeting . . . . . . . . . . . . . . . . . 19
ARTICLE VII: MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . 19
Sec. 7:1. Notice . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sec. 7:2. Fiscal Year and Seal . . . . . . . . . . . . . . . . . . 20
Sec. 7:3. Checks and Notes; Books and Records. . . . . . . . . . . 20
Sec. 7:4. Resignation. . . . . . . . . . . . . . . . . . . . . . . 21
Sec. 7:5. Interested Directors, Officers, Shareholders . . . . . . 21
Sec. 7:6. Limitation of Liability. . . . . . . . . . . . . . . . . 22
Sec. 7:7. Indemnification. . . . . . . . . . . . . . . . . . . . . 22
Sec. 7:8. Dividends and Reserves . . . . . . . . . . . . . . . . . 23
Sec. 7:9. Purchase Own Shares. . . . . . . . . . . . . . . . . . . 23
Sec. 7:10. Annual Statement . . . . . . . . . . . . . . . . . . . . 24
Sec. 7:11. Construction . . . . . . . . . . . . . . . . . . . . . . 24
Sec. 7:12. Amendment of Bylaws. . . . . . . . . . . . . . . . . . . 24
</TABLE>
iii
<PAGE>
BYLAWS
OF
FIRST COMMAND FINANCIAL CORPORATION
(A TEXAS CORPORATION)
ARTICLE I
OFFICES
SEC. 1:1. REGISTERED OFFICE AND AGENT. The registered office of
First Command Financial Corporation (the "Corporation") is 4100 South Hulen,
Fort Worth, Texas 76109.
SEC. 1:2. OTHER OFFICES. The Corporation may also have offices at
such other places both within and without the State of Texas as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
SHAREHOLDERS
SEC. 2:1. PLACE OF MEETINGS. All meetings of the shareholders for
the election of directors are to be held at such time and place, within or
without the State of Texas, as is stated in the notice of the meeting or in a
duly executed waiver of notice thereof. Except as specifically provided by the
Texas Business Corporation Act, only holders of Voting Common Stock shall be
entitled to vote at meetings of the shareholders of the Corporation.
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<PAGE>
SEC. 2:2. ANNUAL MEETINGS. An annual meeting of the shareholders
is to be held on the first business day following the 5th of December of each
year unless amended by notice duly given. At the meeting, the shareholders
shall elect directors and transact such other business as may properly be
brought before the meeting.
SEC. 2:3. SPECIAL MEETINGS. Special meetings of the shareholders
for any purpose or purposes, unless otherwise prescribed by statute, by the
Articles of Incorporation, or by these Bylaws, may be called by the President or
the Board of Directors. Business transacted at a special meeting is to be
confined to the objects stated in the notice of meeting.
SEC. 2:4. NOTICE. Written or printed notice stating the place,
day, and hour of the meeting, and in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
(10) nor more than sixty (60) days before the date of the meeting, either
personally or by mail, by or at the direction of the President, the Secretary,
or the officer or person calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, such notice will be deemed to be
delivered when deposited in the United States mail with postage thereon prepaid
addressed to the shareholder at such shareholder's address as it appears on the
stock transfer books of the Corporation.
SEC. 2:5. ORDER OF BUSINESS AT MEETINGS. The order of business at
annual meetings and so far as practicable at other meetings of shareholders will
be as follows unless changed by the Board of Directors:
(A) Call to order
(B) Proof of due notice of meeting
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(C) Determination of quorum and examination of proxies
(D) Announcement of distribution of annual statement
(E) Reading and disposing of minutes of last meeting of shareholders
(F) Reports of officers and committees
(G) Unfinished business
(H) New business
(I) Election of directors
(J) Other business
(K) Adjournment
SEC. 2:6. QUORUM. The holders of a majority of the shares entitled
to vote, represented at the meeting in person or by proxy, shall constitute a
quorum at a meeting of shareholders. If a quorum is not represented in person
or by proxy at a meeting of the shareholders, the shareholders entitled to vote
thereat, represented in person or by proxy, may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
represented in person or by proxy. At such adjourned meeting at which a quorum
is represented in person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally notified.
SEC. 2:7. MAJORITY VOTE; WITHDRAWAL OF QUORUM. When a quorum is
present at any meeting, the vote of the holders of a majority of the shares
having voting power, present in person or represented by proxy, will decide any
question brought before such meeting; unless the question is one upon which, by
express provisions of the statutes, of the Articles of Incorporation, or of
these Bylaws, a different vote is required in which case such express provisions
will govern and control the decision of such question. The shareholders present
at a duly organized meeting may continue to transact business until adjournment
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
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SEC. 2:8. METHOD OF VOTING. Each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders, except to the extent that the voting rights of the
shares of any class or classes are limited or denied by the Articles of
Incorporation and except as otherwise provided in the Texas Business Corporation
Act. A shareholder may vote either in person or by proxy executed in writing by
the shareholder or by such shareholder's duly authorized attorney-in-fact. No
proxy will be valid after eleven months from the date of its execution unless
otherwise provided in the proxy. A proxy will be revocable unless expressly
provided therein to be irrevocable and unless otherwise made irrevocable by law.
Each proxy is to be filed with the Secretary of the Corporation prior to or at
the time of the meeting. Any vote may be taken orally or by show of hands
unless someone entitled to vote objects in which case written ballots are to be
used.
SEC. 2:9. ELECTION OF DIRECTORS. Directors are to be elected by
plurality vote. Cumulative voting is not permitted.
SEC. 2:10. VOTING LIST. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least ten (10)
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of each and the number of voting shares
held by each, which list, for a period of ten (10) days prior to such meeting,
is to be kept on file at the registered office of the Corporation and is to be
subject to inspection by any shareholder at any time during usual business
hours. Such list
4
<PAGE>
is to be produced and kept open at the time and place of the meeting and will be
subject to the inspection of any shareholder during the whole time of the
meeting.
SEC. 2:11. RECORD DATE; CLOSING TRANSFER BOOKS. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors of the Corporation may provide that the
stock transfer books will be closed for a stated period not to exceed sixty
days. If the stock transfer books are closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books are to be closed for at least ten (10) days immediately preceding such
meeting. In lieu of closing the stock transfer books, the Board of Directors
may fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than sixty days and, in case
of a meeting of shareholders, not less than ten (10) days prior to the date on
which the particular action, requiring such determination of shareholders, is to
be taken. If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, or the determination of shareholders entitled to
receive payment of a dividend, the date on which notice of the meeting is mailed
or the date on which the resolution of the Board of Directors declaring such
dividend is adopted, as the case may be, will be the record date for such
determination of shareholders. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as provided herein, such
determination will apply to any adjournment thereof except when the
5
<PAGE>
determination has been made through the closing of stock transfer books, and the
stated period of closing has expired.
SEC. 2:12. ACTION WITHOUT MEETING. Any action required by the Texas
Business Corporation Act to be taken at any annual or special meeting of
shareholders, or any action which may be taken at any annual or special meeting
of shareholders, may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing setting forth the actions so
taken, are signed by the holder or holders of shares having not less than the
minimum number of votes that would be necessary to take such action at a meeting
at which the holders of all shares entitled to vote on the action were present
and voting. Further, but subject to the provisions required or permitted for
notice of meetings, the shareholders may participate in and hold a meeting of
such shareholders by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE III
DIRECTORS
SEC. 3:1. MANAGEMENT. The business and affairs of the Corporation
are to be managed by the Board of Directors who may exercise all such powers of
the Corporation and do all such lawful acts and things as are not (by statute or
by the Articles
6
<PAGE>
of Incorporation or by these Bylaws) directed or required to be exercised by, or
done or reserved to, the shareholders.
SEC. 3:2. PLACE OF MEETINGS. Meetings of the Board of Directors,
regular or special, may be held either within or without the State of Texas.
SEC. 3:3. REGULAR MEETINGS; NOTICE. Regular meetings of the Board
of Directors are to be held without notice immediately following the annual
meeting of shareholders and at the same place unless (by unanimous consent of
the directors then elected and serving) such time or place shall be changed.
SEC. 3:4. SPECIAL MEETINGS; NOTICE. Special meetings of the Board
of Directors may be called by the President on twenty-four (24) hours notice to
each director, either personally or by mail or telegram. Special meetings shall
be called by the President or Secretary in like manner and on like notice in
response to the written request of any two directors. Neither the business to
be transacted at, nor the purpose of, any special meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting
unless required by these Bylaws. Attendance of a director at a meeting will
constitute a waiver of notice of such meeting, except where a director attends a
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.
SEC. 3:5. QUORUM; MAJORITY VOTE. A majority of the number of
directors fixed by these Bylaws shall constitute a quorum for the transaction of
business. The act of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors, unless the
act of a greater number is required by the Articles
7
<PAGE>
of Incorporation or these Bylaws. If a quorum is not present at a meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, unless
a quorum is present.
SEC. 3:6. NUMBER; QUALIFICATION; ELECTION; TERM. The Board of
Directors shall consist of not less than three (3) nor more than fifteen (15)
directors. The number of directors may be increased or decreased by the
affirmative vote of the holders of not less than eighty percent (80%) of the
outstanding shares of Voting Common Stock of the corporation at any annual
meeting or at any special meeting called for that purpose, provided, however,
the number of directors shall in no event be less than three (3) nor more than
fifteen (15). The Board shall be divided into three (3) classes, Class I, Class
II, and Class III. The number of directors in each class shall be the whole
number contained in the quotient arrived at by dividing the authorized number of
directors by three and if a fraction is also contained in such quotient, then if
such fraction is one-third (1/3) the extra director shall be a member of Class
III and if the fraction is two-thirds (2/3) one of the directors shall be a
member of Class III and the other shall be a member of Class II. Each director
shall serve for a term ending on the third annual meeting following the annual
meeting at which such director was elected; provided, however, that the
directors first elected to Class I shall serve for a term ending on the annual
meeting next ensuing, the directors first elected to Class II shall serve for a
term ending on the second annual meeting following the meeting at which such
directors were first elected, and the directors first elected to Class III shall
serve a full term as hereinabove provided. The foregoing notwithstanding, each
director shall serve until his successor shall have been duly elected and
qualified unless he shall die,
8
<PAGE>
resign, become disqualified, disabled or shall otherwise be removed. At each
annual election, the directors chosen to succeed those whose terms then expire
shall be identified as being of the same class as the directors they succeed.
If for any reason the number of directors in the various classes shall not
conform with the formula set forth in the preceding paragraph, the Board of
Directors may redesignate any director into a different class in order that the
balance of directors in such classes shall conform thereto.
SEC. 3:7. REMOVAL AND VACANCIES OF DIRECTORS. Any director of the
Corporation may be removed from the Board, with or without cause, only by a vote
of the holders of not less than eighty percent (80%) of the outstanding shares
of Voting Common Stock entitled to vote thereon. Vacancies in the Board of
Directors by reason of death, resignation, an increase in the number of
directors, removal or other cause shall be filled by the vote of a majority of
the remaining directors although less than a quorum. A director so selected by
the remaining directors to fill a vacancy shall serve for the unexpired term of
and in the same class as the director whose position is vacated, unless the
person is selected to fill a vacancy created by an increase in the number of
directors, in which event the remaining directors shall fill such vacancy
consistent with the formula for classes of directors set forth in Section 3:6
above.
SEC. 3:8. ADVISORY DIRECTOR. The Board of Directors may appoint such
number of advisory directors as it shall from time to time determine. Each
advisory director appointed shall hold office for the term for which he is
elected or until his earlier death, resignation, retirement or removal by the
Board of Directors. The advisory directors may attend and be present at the
meetings of the Board of Directors, although a meeting of the
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<PAGE>
Board of Directors may be held without notice to the advisory directors and the
advisory directors shall not be considered in determining whether a quorum of
the Board of Directors is present. The advisory directors shall advise and
counsel the Board of Directors on the business and operations of the Corporation
as requested by the Board of Directors; however, the advisory directors shall
not be entitled to vote on any matter presented to the Board of Directors.
SEC. 3:9. AMENDMENT OF THIS ARTICLE III. Notwithstanding the
provisions of Section 7:12 of these Bylaws with respect to amendment of the
Bylaws, Article III of the Bylaws of the Corporation relating to a Classified
Board, may not be amended, altered, changed or repealed in any respect unless
such action is approved by the affirmative vote of the holders of not less than
eighty percent (80%) of the outstanding shares of Voting Common Stock.
SEC. 3:10. PROCEDURE. The Board of Directors shall keep regular
minutes of its proceedings. The minutes are to be placed in the minute book of
the Corporation.
SEC. 3:11. COMPENSATION. By resolution of the Board of Directors,
the directors may be paid their expenses, if any, of attendance at each meeting
of the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as a director. No such
payment will preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of the executive
committee or of special or standing committees may, by resolution of the Board
of Directors, be allowed like compensation for attending committee meetings.
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SEC. 3:12. ACTION WITHOUT MEETING. Unless otherwise restricted by
the Articles of Incorporation or these Bylaws, any action required or permitted
to be taken at a meeting of the Board of Directors may be taken without a
meeting if a consent in writing, setting forth the action so taken, is signed by
all the members of the Board of Directors. Such consent will have the same
force and effect as a unanimous vote at a meeting. Any such signed consent, or
a signed copy thereof, is to be placed in the minute book of the Corporation.
Further, but subject to the provisions required or permitted for notice of
meetings, the directors may participate in and hold a meeting of such directors
by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this provision will constitute presence
in person at such meeting except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE IV
OFFICERS
SEC. 4:1. NUMBER AND QUALIFICATION. The officers of the
Corporation shall consist of a Chairman of the Board, Chief Executive Officer,
President, a Secretary, and a Treasurer, each of whom shall be elected by the
Board of Directors on the expiration of an officer's term or whenever a vacancy
exists. The Corporation may also have such other officers (including
Vice-Presidents, Assistant Secretaries and Assistant Treasurers) and assistant
officers and agents as the Board of Directors may deem necessary, each of whom
may be elected by the Board at any meeting. Any two or more offices may be held
by the
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same person. No officer shall execute, acknowledge, verify or countersign any
instrument on behalf of the Corporation in more than one capacity, if such
instrument is required by law, by these Bylaws, or by any act of the Corporation
to be executed, acknowledged, verified or countersigned by two or more officers.
No officer or agent need be a director, and no officer or agent need be a
shareholder, or a resident of the State of Texas.
SEC. 4:2. TERM AND COMPENSATION. Unless otherwise specified by the
Board at the time of election or appointment or in an employment contract
approved by the Board, each officer's and agent's term is to end at the first
meeting of directors held after the next annual meeting of the shareholders.
Such officer or agent shall serve until the end of such person's term or, if
earlier, such person's death, resignation, or removal. The compensation of
officers and agents is to be fixed from time to time by the Board of Directors.
SEC. 4:3. REMOVAL; VACANCIES. Any officer or agent elected or
appointed by the Board of Directors may be removed by the Board of Directors
whenever in its judgment the best interests of the Corporation will be served
thereby, but such removal will be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer or agent
will not of itself create contract rights. Any vacancy occurring in any office
of the Corporation (by death, resignation, removal, or otherwise) may be filled
by the Board of Directors.
SEC. 4:4. AUTHORITY. All officers and agents of the Corporation,
as between themselves and the Corporation, will have such authority and perform
such duties
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in the management of the Corporation as may be provided in these Bylaws or as
may be determined by resolution of the Board of Directors not inconsistent with
these Bylaws.
SEC. 4:5. CHAIRMAN OF THE BOARD. The Board of Directors may elect a
Chairman of the Board. The Chairman of the Board shall preside at all meetings
of the directors and shareholders. When designated as such by the Board, the
Chairman of the Board shall be the Corporation's Chief Executive Officer.
SEC. 4:6. PRESIDENT. The President shall have general charge over
the affairs of the Corporation. When the Chairman of the Board is designated as
Chief Executive Officer, the President shall be subject to the direction of the
Chairman of the Board. If the Chairman is not designated as Chief Executive
Officer, then the President shall be Chief Executive Officer, subject only to
the direction of the Board of Directors. The President shall, in any case, be
the Chief Operating Officer of the Corporation.
SEC. 4:7. VICE PRESIDENT/SENIOR OR EXECUTIVE VICE PRESIDENT. Each
Vice President shall perform such duties as may be assigned to him by the
Chairman or the President. A Senior or Executive Vice President may be
designated as such based upon tenure or responsibility.
SEC. 4:8. SECRETARY. The Secretary shall be ex-officio Secretary
of the Board of Directors, shall give or cause to be given all required meeting
notices to the shareholders and directors, shall record all proceedings of the
meetings of the shareholders and directors in a book to be kept for that
purpose; and shall perform such other duties as may be assigned to him by the
Board of Directors; he shall have custody of the seal of the Corporation and
shall affix the same to any instrument when duly authorized to do so and
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attest the same, and he shall be sworn to the faithful discharge of his duties.
This office may be combined with the office of Treasurer.
SEC. 4:9. TREASURER. The Treasurer shall keep account of all
monies of the Corporation received or disbursed, and shall deposit all monies
and valuables in the name and to the credit of the Corporation in such banks and
depositories as the Board of Directors shall designate. This office may be
combined with any other office of the Corporation.
ARTICLE V
CERTIFICATES OF STOCK
SEC. 5:1. CERTIFICATES. The Corporation shall deliver certificates
representing all shares to which shareholders are entitled; and such
certificates shall be signed by the President and by the Secretary, or such
other officers as the Directors of the Corporation may prescribe, and may be
sealed with the seal of the Corporation or a facsimile thereof. The signatures
of such officer or officers upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar,
either of which is other than the Corporation itself or an employee of the
Corporation. In case any officer who has signed or whose facsimile signature
has been placed upon such certificate ceases to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer at the date of its issuance. Each
certificate representing shares is to state upon the face thereof: (A) that the
Corporation is organized under the laws of the State of Texas; (B) the name of
the person to whom issued; (C) the number and class of shares and the
designation of the
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series, if any, which such certificate represents; and (D) the par value of each
share represented by such certificate or a statement that the shares are without
par value.
SEC. 5:2. ISSUANCE. Shares (both treasury and authorized but
unissued) may be issued for such consideration (not less than par value) and to
such persons as the Board of Directors may from time to time determine. Shares
may not be issued until the full amount of the consideration, fixed as provided
by law, has been paid.
SEC. 5:3. PAYMENT FOR SHARES. The consideration paid for the
issuance of shares is to consist of any tangible or intangible benefit to the
Corporation, including cash, promissory notes, services performed, contracts for
services to be performed, or property (tangible or intangible) actually
received. In the absence of fraud in the transaction, the judgment of the Board
of Directors as to the value of the consideration received for shares will be
conclusive. When such consideration has been paid to the Corporation, the
shares will be deemed to have been issued, the shareholder entitled to receive
such issue will be a shareholder with respect to such shares, and the shares
will be considered fully paid and nonassessable. The consideration received for
shares will be allocated by the Board of Directors in accordance with law
between stated capital and capital surplus accounts.
SEC. 5:4. NO PREEMPTIVE RIGHTS. No shareholder or other person may
have any preemptive rights whatsoever to acquire additional, unissued, or
treasury shares of the Corporation, or securities of the Corporation convertible
into or carrying a right to subscribe to or acquire shares, or any other
securities or property whatsoever.
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SEC. 5:5. LIEN. For any indebtedness of a shareholder to the
Corporation, the Corporation will have a first and prior lien on all shares of
its stock owned by such shareholder and on all dividends or other distributions
declared thereon.
SEC. 5:6. LOST, STOLEN, OR DESTROYED CERTIFICATES. The Corporation
shall issue a new certificate in place of any certificate for shares previously
issued if the registered owner of the certificate: (A) makes proof in affidavit
form that it has been lost, destroyed, or wrongfully taken; (B) requests the
issuance of a new certificate before the Corporation has notice that the
certificate has been acquired by a purchaser for value in good faith and without
notice of an adverse claim; (C) gives a bond in such form, and with such surety
or sureties, with fixed or open penalty as the Corporation may direct, to
indemnify the Corporation (and its transfer agent and registrar, if any) against
any claim that may be made on account of the alleged loss, destruction, or theft
of the certificate; and (D) satisfies any other reasonable requirements imposed
by the Corporation. When a certificate has been lost, apparently destroyed, or
wrongfully taken, and the holder of record fails to notify the Corporation
within a reasonable time after such holder has notice of it, and the Corporation
registers a transfer of the shares represented by the certificate before
receiving such notification, the holder of record is precluded from making any
claim against the Corporation for the transfer or for a new certificate.
SEC. 5:7. REGISTERED OWNER. Prior to due presentment for
registration of transfer of a certificate for shares, the Corporation may treat
the registered owner as the person exclusively entitled to vote, to receive
notices, and otherwise to exercise all the rights and powers of a shareholder.
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SEC. 5:8. REGISTRATION OF TRANSFER. The Corporation shall register
the transfer of a certificate for shares presented to it for transfer if: (A)
the certificate is properly endorsed by the registered owner or by such owner's
duly authorized attorney; (B) the signature of such person has been guaranteed
by a national banking association or member of a national stock exchange, and
reasonable assurance is given that such endorsements are effective; (C) the
Corporation has no notice of an adverse claim or has discharged any duty to
inquire into such a claim; and (D) any applicable law relating to the collection
of taxes has been complied with.
ARTICLE VI
EXECUTIVE COMMITTEE
SEC. 6:1. DESIGNATION; AUTHORITY; RESPONSIBILITY. The Board of
Directors may, by resolution adopted by a majority of the full Board of
Directors fixed by the Bylaws, designate from among its members an executive
committee and one or more other committees, each of which shall be comprised of
one or more members and, to the extent provided in such resolution will have and
may exercise all of the authority of the Board of Directors, except that no such
committee may have the authority of the Board of Directors to amend the Articles
of Incorporation, approve a plan of merger or consolidation, recommend to the
shareholders the sale, lease, or exchange of all or substantially all of the
property and assets of the Corporation otherwise than in the usual and regular
course of its business, recommend to the shareholders a voluntary dissolution of
the Corporation or a revocation thereof, amend, alter, or repeal the Bylaws of
the Corporation or adopt new Bylaws for the Corporation, fill vacancies in or
remove members of the Board of Directors
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of any such committee, fix the compensation of any member of such committee, or
alter or repeal any resolution of the Board of Directors which by its terms
provides that it is not so amendable or repealable; and, unless such resolution,
the Articles of Incorporation, or these Bylaws of the Corporation expressly so
provide, no such committee may declare a dividend or authorize the issuance of
shares of the Corporation. The designation of such committee and the delegation
thereto of authority will not operate to relieve the Board of Directors or any
member thereof of any responsibility imposed by law.
SEC. 6:2. PROCEDURE; REMOVAL; VACANCIES. The executive committee
shall keep regular minutes of its proceedings and report the same to the Board
of Directors when required. The minutes of the proceedings of the executive
committee are to be placed in the minute book of the Corporation. Any member of
the executive committee elected or appointed by the Board of Directors may be
removed by the Board of Directors whenever in its judgment the best interests of
the Corporation will be served thereby. A vacancy occurring in the executive
committee (by death, resignation, removal, or otherwise) may be filled by the
Board of Directors in the manner provided above for original designation.
SEC. 6:3. MEETINGS; QUORUM; MAJORITY VOTE. The time, place, and
notice (if any) of executive committee meetings shall be determined by the
executive committee. At meetings of the executive committee, a majority of the
number of members designated by the Board of Directors will constitute a quorum
for the transaction of business. The act of a majority of the members present
at any meeting at which a quorum is present will be the act of the executive
committee except as otherwise specifically provided by statute or by the
Articles of Incorporation or by these Bylaws. If a quorum is not present at a
meeting
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of the executive committee, the members present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum is present.
SEC. 6:4. ACTION WITHOUT MEETING. Any action required or permitted
to be taken at a meeting of the executive committee may be taken without a
meeting if a consent in writing, setting forth the action so taken, is signed by
all the members of the executive committee. Any such signed consent, or a
signed copy thereof, is to be placed in the minute book of the Corporation.
Further, but subject to the provisions required or permitted for notice of
meetings, the members of the executive committee may participate in and hold a
meeting of such members of the executive committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this provision will constitute presence in person at such meeting
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SEC. 7:1. NOTICE. Whenever by statute, the Articles of
Incorporation, or these Bylaws notice is required to be given to a director or
shareholder, and no provision is made as to how the notice is to be given, it is
not to be construed to mean personal notice, but any notice may be given (A) in
writing, by mail, sufficient postage prepaid, addressed to the director or
shareholder at the address appearing on the books of the
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Corporation, or (B) in any other method permitted by law. Any notice required
or permitted to be given by mail will be deemed given at the time when the same
is deposited in the United States mail. Whenever any notice is required to be
given to a shareholder or director of the Corporation under the provisions of
the Texas Business Corporation Act or under the provisions of the Articles of
Incorporation or these Bylaws, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, will be equivalent to the giving of such notice.
SEC. 7:2. FISCAL YEAR AND SEAL. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors. The corporate seal (of
which there may be one or more exemplars) shall contain the name of the
Corporation and the name of the state of incorporation. The seal may be used by
impressing it or reproducing a facsimile of it or otherwise.
SEC. 7:3. CHECKS AND NOTES; BOOKS AND RECORDS. All checks or
demands for money and notes of the Corporation are to be signed by such officer
or officers or such other person or persons as the Board of Directors may from
time to time designate. The Corporation shall keep correct and complete books
and records of account, shall keep minutes of the proceedings of its
shareholders and Board of Directors, and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its shareholders giving the names and addresses of all
shareholders and the number and class of the shares held by each. Any books,
records, and minutes may be in written form or in any other form capable of
being converted into written form within a reasonable time.
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SEC. 7:4. RESIGNATION. Any director, officer, or agent may resign
by giving written notice to the President or the Secretary. Any such
resignation will become effective at the time specified therein or immediately
if no time is specified therein. Unless otherwise so specified, the acceptance
of such resignation will not be necessary to make it effective.
SEC. 7:5. INTERESTED DIRECTORS, OFFICERS, SHAREHOLDERS.
(A) If paragraph (B) below is satisfied, no contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other Corporation, partnership,
association or other organization in which one or more of the Corporation's
directors or officers are directors or officers or have a financial interest,
shall be void or voidable solely for this reason, solely because the director or
officer is present at or participates in the meeting of the Board of Directors
or committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose.
(B) Paragraph (A) above will apply only if:
(1) The contract or transaction is fair to the
Corporation as of the time it is authorized, approved, or ratified by the Board
of Directors, a committee of the board, or the shareholders; or
(2) The material facts as to the relationship or
interest of the director or officer and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board
or committee in good faith authorizes
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the contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or
(3) The material facts as to the relationship or
interest of the director or officer and as to the contract or transaction are
disclosed or are known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by a vote of the
shareholders.
(C) For purposes of paragraphs (A) and (B) above, common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
SEC. 7:6. LIMITATION OF LIABILITY. No Director of the Corporation
shall be personally liable to the Corporation or its shareholders for monetary
damages for any act or omission in the Director's capacity as a director, except
to the extent otherwise expressly provided by statute of the State of Texas.
Any repeal or modification of this Article shall be prospective only, and shall
not adversely affect any limitation of the personal liability of a Director of
the Corporation existing at the time of the repeal or modification.
SEC. 7:7. INDEMNIFICATION. The Corporation shall, to the maximum
extent permitted from time to time under the laws of the State of Texas,
indemnify and upon request shall advance expenses to any person who is or was a
party to any threatened, pending, or completed action, suit, proceeding, or
claim, whether civil, criminal, administrative or investigative, by reason of
the fact that he or she is or was or has agreed to be a trustee, director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a trustee, director, officer, partner, venturer or proprietor of
another
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corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees and expenses), judgments, fines, penalties
and amounts paid in settlement incurred in connection with the investigation,
preparation to defend or defense of any such action, suit, proceeding or claim.
Such indemnification shall not be exclusive of any other indemnification rights
arising under any bylaw,
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agreement, vote of Directors or shareholders or otherwise and shall inure to
the benefit of the heirs and legal representations of such person. Any
repeal or modification of this Section shall be prospective only, and shall
not adversely affect any rights to indemnification of any such person
existing at the time of the repeal or modification.
SEC. 7:8. DIVIDENDS AND RESERVES. Subject to statute and the
Articles of Incorporation, dividends may be declared by the Board of
Directors at any regular or special meeting and may be paid in cash, in
property, or in shares of the Corporation. The declaration and payment will
be at the discretion of the Board of Directors. By resolution the Board of
Directors may create such reserve or reserves out of the earned surplus of
the Corporation as the directors from time to time in their discretion think
proper to provide for contingencies, to equalize dividends, to repair or
maintain any property of the Corporation, or for any other purpose they
believe to be beneficial to the Corporation. The directors may modify or
abolish any such reserve in the manner in which it was created.
SEC. 7:9. PURCHASE OWN SHARES. The Corporation may, directly or
indirectly, purchase its own shares to the extent of the aggregate of
unrestricted capital surplus available therefor and unrestricted reduction
surplus available therefor.
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SEC. 7:10. ANNUAL STATEMENT. At least ten (10) days before each
annual meeting, the Board of Directors shall mail to each shareholder of record
a full and clear statement of the business and condition of the Corporation
including a reasonably detailed balance sheet, income statement, and surplus
statement, all prepared in conformity with generally accepted accounting
principles applied on a consistent basis.
SEC. 7:11. CONSTRUCTION. Whenever the context so requires, the
masculine will include the feminine and neuter, and the singular will include
the plural, and conversely. If any portion of these Bylaws is determined
invalid or inoperative, then, so far as is reasonable and possible, the
remainder of these Bylaws is to be considered valid and operative, and effect is
to be given to the intent manifested by the portion held invalid or inoperative.
The table of contents and headings used in these Bylaws have been inserted for
convenience only and do not constitute matters to be construed in
interpretation.
SEC. 7:12. AMENDMENT OF BYLAWS. These Bylaws may be altered,
amended, or repealed at any meeting of the Board of Directors at which a quorum
is present by the affirmative vote of a majority of the directors present at
such meeting, provided notice of the proposed alteration, amendment, or repeal
is contained in the notice of such meeting.
- END OF BYLAWS -
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I, the undersigned, being the Secretary of the Corporation DO HEREBY
CERTIFY THAT the foregoing, consisting of 25 pages total, are the Bylaws of
First Command Financial Corporation, as adopted by the unanimous written consent
of the Board of Directors of said Corporation effective April 3, 1998, and as
amended by the unanimous written consent of the Board of Directors of said
Corporation effective _____________, 1998.
-----------------------------------
Robert F. Watson, Secretary
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ANNEX F
TAX OPINION OF ERNST & YOUNG LLP
F-1
<PAGE>
e r Mergers & Acquisitions r Southwest Area/Dallas
July 6, 1998
Board of Directors
Independent Research Agency for Life Insurance, Inc.
USPA & IRA Building
4100 South Hulen Street
P.O. Box 2387
Fort Worth, TX 76113
Gentlemen:
Pursuant to your request, we submit this memorandum setting forth our opinion
with respect to certain U.S. federal income tax consequences that should
arise from the (i) proposed merger (the "Proposed Merger") of Independent
Research Agency for Life Insurance, Inc. ("IRA") with and into First Command
Financial Corporation ("First Command") pursuant to the Agreement and Plan of
Merger, dated July 1, 1998, and (ii) implementation by IRA prior to and
separate from Proposed Merger, of the proposed deferred compensation plan, as
described below.
In rendering the opinions expressed below, we have relied upon the completeness,
truth and accuracy, at all relevant times, of the following documents
(collectively, the "Documents"):
1. The Agreement and Plan of Merger, dated July 1, 1998, by and between IRA
and First Command;
2. The Preliminary Proxy Statement, dated July 6, 1998, to be furnished to the
shareholders of IRA in connection with the special meeting of shareholders;
3. The Statement of Facts and Representations, dated July 1, 1998, issued by
authorized representatives of IRA and First Command to Ernst & Young LLP;
4. Form of Shareholders' Agreement;
5. Form of Restated Articles of Incorporation, as proposed to be amended;
6. The Mission Accomplishment Plan for a Select Group of Management of
Independent Research Agency for Life Insurance, Inc., the Mission
Accomplishment Plan for Agents of Independent Research Agency for Life
Insurance, Inc., the Mission Accomplishment Plan for a Select Group of
Highly Compensated Employees of Independent Research Agency for Life
Insurance, Inc., and the Mission Accomplishment Plan for a Select Group of
Key Employees of Independent Research Agency for Life Insurance, Inc.
(collectively, the "MAP");
7. The IRA MAP Board Grant Declaration and Administrative Policies; and
<PAGE>
Independent Research Agency for Life Insurance, Inc.
First Command Financial Corporation Page 2
8. The MAP Award Agreement entered into by and between participating
individuals and IRA, and the accompanying MAP Certificate and Plan Summary.
Additionally, in rendering the opinions expressed below, you have represented to
us and we are relying upon, without any independent investigation or review
thereof, that the following are true:
1. The authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as
copies, and the authenticity of the originals of such documents; and
2. The genuineness of all signatures, the due authorization, execution, and
delivery of all relevant documents by all parties thereto, and the due
authority of all persons executing such documents.
Authorized representatives of IRA and First Command have represented to us that
the Documents provide a complete and accurate description of the facts and
circumstances surrounding the Proposed Merger. We have made no independent
investigation of such facts and circumstances, and any change or modification to
such facts and circumstances or to the Documents may materially affect the
opinions expressed herein.
STATEMENT OF BUSINESS PURPOSE
Authorized representatives of IRA and First Command have represented to us that
the primary business purpose for the Proposed Merger is to de-register the Class
B stock under the Securities Exchange Act of 1934 (the "Exchange Act"), which
will allow IRA to avoid the reporting requirements of the Exchange Act. IRA
currently incurs significant costs related to its status as a public reporting
corporation under the federal securities laws, including indirect costs arising
from, among other things, the time and effort expended by executives of the
company preparing and reviewing public filings, furnishing information to
shareholders, and attending to various other shareholder matters. IRA
anticipates that the termination of its registration under the Exchange Act will
eliminate such significant costs and expenses (both direct and indirect) arising
from various regulatory and reporting requirements imposed by federal securities
laws.
An additional business purpose for the Proposed Merger is to achieve
administrative simplicity and reduce the compliance responsibilities that
would be present if both IRA and First Command operated as separate S
corporations going forward.
<PAGE>
Independent Research Agency for Life Insurance, Inc.
First Command Financial Corporation Page 3
STATEMENT OF FACTS AS REPRESENTED BY IRA
BACKGROUND
IRA, a Texas corporation, was formed in December, 1980, as a Texas insurance
agency. IRA began operations in March, 1981, upon the receipt of all the assets
and liabilities of Independent Research Agency for Life Insurance, a Texas
general partnership. Included in the transfer of the assets and liabilities
from the general partnership to IRA was all the outstanding stock of Independent
Research Agency for Life Insurance, Inc., a Hawaii corporation.
In March, 1981, IRA acquired all the outstanding stock of United States Planning
Association, Inc. ("USPA"), a Texas corporation. IRA subsequently organized
several operating subsidiaries which currently operate in Wyoming, Montana, New
York, Nevada, and Alabama. All IRA subsidiaries (the "IRA Subsidiaries") except
USPA and First Command Bank ("FCB") were formed and are being maintained to
permit IRA to do business in those states in which the entities are registered
to do business. Neither IRA nor any IRA Subsidiary is, or at any relevant time
has been, a life insurance company within the meaning of Treas. Reg. Section
1.801-3.
IRA and the IRA Subsidiaries (excluding USPA and FCB) are engaged in the sale of
insurance products to United States active duty and former commissioned, warrant
and noncommissioned military personnel. IRA and the IRA Subsidiaries (excluding
USPA and FCB) conduct their business through independent contractors (typically
referred to as "agents") located in approximately 149 cities throughout the
United States, in one U.S. territory, and in three foreign countries. All IRA
Subsidiaries are, and at all relevant times have been, wholly-owned by IRA.
USPA acts as a broker/dealer of several widely-owned mutual funds pursuant to
written agreements with certain investment companies. Such agreements give USPA
the non-exclusive right to sell shares of such mutual funds through USPA agents
and/or the agents of IRA. USPA is, and its selling agents are, registered with
the Securities and Exchange Commission ("SEC") and the National Association of
Securities Dealers, Inc.
In November of 1996, IRA received approval from the Office of Thrift Supervision
to organize and operate a federal savings bank. In March of 1997, IRA formed
FCB as a wholly-owned first-tier subsidiary. FCB commenced banking operations
on April 21, 1997. FCB makes commercial and consumer loans and receives
deposits primarily from clients of IRA and the IRA Subsidiaries. FCB is a bank
as defined in Section 581 of the Internal Revenue Code of 1986, as amended (the
"IRC").
<PAGE>
Independent Research Agency for Life Insurance, Inc.
First Command Financial Corporation Page 4
IRA and the IRA Subsidiaries share common employees, sales agents and
representatives, and office facilities. The home offices of IRA and the IRA
Subsidiaries are located in Fort Worth, Texas.
STOCKHOLDER'S EQUITY
IRA has, and at all relevant times has had, two classes of common stock
outstanding - Class A and Class B. IRA does not currently have, nor at any
relevant time has it had, any preferred stock issued and outstanding. IRA does
not currently have, nor at any relevant time has it had, any outstanding
options, warrants, or convertible debt instruments.
Class A common stock is VOTING common stock. There are currently 25 shares of
Class A voting common stock issued and outstanding, all of which are owned by 14
individuals. Carroll Payne, II, the son of IRA's founder, and persons related
to Carroll Payne, II own 12 shares (48% of the vote and value) of the Class A
common stock.(1) Members of the Board of Directors of IRA (unrelated to Carroll
Payne, II) own 10 shares (40% of the vote and value) of the Class A common
stock. The remaining three shares are owned by other unrelated individuals.
All owners of Class A common stock have owned their respective shares for at
least two years except one Class A shareholder who purchased her one share of
Class A stock in December of 1997 from a retiring Class A shareholder, and one
Class A shareholder who purchased his one share of Class A stock in March of
1998. As of June 15, 1998, the individuals owning Class A common stock also own
approximately 38% of the Class B common stock.
The Class B common stock is NONVOTING common stock. As of September 30, 1997,
there were approximately 1,053,357 shares of Class B common stock issued and
outstanding, which were owned by approximately 549 individuals. The Class B
shares are registered with the SEC pursuant to Section 12(g) of the Exchange
Act. A majority of the Class B shareholders are independent insurance agents
through which IRA sells its products. IRA has historically paid a substantial
portion of its annual operating profits to its stockholders in the form of an
annual dividend. Substantially all the owners of Class B common stock have
owned their respective shares for at least two years.
All shares of issued and outstanding IRA common stock are subject to varying
degrees of limited transferability, and, according to IRA legal counsel, cannot
be owned by persons other than insurance agents licensed in the State of Texas.
The stock owned by the Payne family members described in footnote 1, supra (the
"Payne Family Members"), are subject to a stock agreement, dated March 22, 1983
(the
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(1) Carroll Payne, II currently owns three shares of the Class A common stock.
Naomi Payne and Debra Payne, Carroll's sisters, each own three shares of the
Class A common stock, and Freda Payne, Carroll's stepmother, owns an additional
three shares of such stock.
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"Payne Family Stock Agreement"), between such family members and IRA that
provides (among other things) that in the event a Payne Family Member desires to
sell or otherwise dispose of all or any portion of his or her Class A common
stock, or in the event of the death of a Payne Family Member, the other Payne
Family Members shall have the option to purchase such shares, on a proportionate
basis, for a period of sixty (60) days. If the other Payne Family Members
choose not to exercise their right of first refusal with respect to the Class A
stock, the Payne Family Stock Agreement provides that IRA shall purchase such
stock. With respect to the Class B stock, the Payne Family Stock Agreement
provides that, in the event a Payne Family Member desires to sell any Class B
common stock, IRA has a right of first refusal with respect to such stock and if
it fails to exercise such right, the person to whom Class B common stock is
offered must be a properly licensed insurance agent under contract with IRA and
must execute a stock agreement with IRA limiting his or her ownership and
transferability rights.
The owners of Class A common stock who are not Payne Family Members are subject
to a stock agreement (the "Class A Stock Agreement") pursuant to which (among
other things) IRA has the right to acquire the Class A stock within a period of
ninety (90) days in the event the shareholder (i) fails to continue as a
licensed insurance agent, (ii) ceases to be a duly authorized agent of IRA,
(iii) dies, or (iv) desires to sell his or her shares. The terms of the Class A
Stock Agreement provide that IRA, in its sole discretion, shall annually
determine the price at which IRA will repurchase any Class A shares.
The owners of Class B common stock who are not Payne Family Members are subject
to a stock agreement (the "Class B Stock Agreement") pursuant to which the Class
B stock will be repurchased by IRA, within ninety (90) days, if the shareholder
(i) fails to continue as a licensed insurance agent, (ii) ceases to be a duly
authorized agent of IRA, (iii) dies, or (iv) desires to sell or dispose of his
or her shares. The terms of the Class B Stock Agreement provide that IRA, in
its sole discretion, shall annually determine the price at which IRA will
repurchase any Class B shares.(2)
SAR AND DER PLAN
On June 27, 1998, IRA's Board of Directors approved and adopted the MAP. The
primary purpose of the MAP is to provide agents and a select group of key
employees and independent contractors of IRA (and its affiliates) an opportunity
to participate in the success of IRA. Under the MAP, IRA will award "stock
appreciation rights" ("SARs") along with "dividend equivalent rights" ("DERs")
to agents and employees for services rendered. A SAR is the right to
participate in the undistributed earnings of IRA.
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(2) The Class B common stock has an expected redemption price as of September
30, 1998, as determined by the Board of Directors in accordance with the
Class B Stock Agreement, of $28.24 per share. The Class A common stock has
an expected redemption price as of September 30, 1998, as determined by the
Board of Directors in accordance with the Class A Stock Agreement, of five
times that of the Class B stock.
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A DER is the right to participate when the Board of Directors declares a
dividend equivalent based upon the earnings of IRA. The number of SAR/DER units
that are awarded will vary from time to time as determined by IRA in its sole
discretion. Participation in the MAP is limited to agents, a select group of
management employees, and certain other key employees of IRA ("Participants") as
determined from time to time by the Board of Directors in its sole discretion
for services rendered.
There are two types of MAP awards: (1) a SAR which increases in value as
determined by IRA, and (2) a DER that participates in an annual cash dividend
equivalent declared by the Board. The Board will grant a Participant one or
more MAP Units for services rendered, each of which refers collectively to a
single SAR unit and a single DER unit. IRA will determine annually the number
of MAP Units to grant based on IRA's Future Incentive Commission needs, Profit
Sharing Plan needs, and other factors. The value of each SAR will be
established no less frequently than annually.
At the end of the exercise period or following separation of service, SAR
holders are entitled to exercise their rights to receive a cash payment equal to
the difference between (1) the per SAR unit value determined by IRA as of the
last day of the calendar quarter during which the participant provides the Plan
Administrator with a written request for a cash payment on an approved form,
less (2) the per SAR unit value as of the date of grant. A DER unit is
exercised when the Board declares a cash dividend equivalent to be paid before
the end of the plan year.
SARs and DERs may not be transferred, pledged, assigned, or otherwise encumbered
in any manner except as specified in the MAP Agreement. There will be no
separate account, fund, trust, insurance policy, or other source of funding
related to the grant of SARs or DERs under the MAP. Payment of SAR awards will
be made in cash from the general assets of IRA. IRA may maintain and transfer
property to satisfy obligations arising under a DER. The Board, in its sole and
absolute discretion, has the power to interpret and administer the MAP
including, but not limited to, setting MAP policy, determining award amounts,
and determining valuation methods.
FIRST COMMAND FINANCIAL CORPORATION
IRA currently owns land adjacent to its current headquarters on which IRA
intended to construct a parking garage (the "Facilities"). In April, 1998, Lamar
Smith, Jim Lanier, Howard Crump and Carroll Payne, II formed First Command with
the intention that First Command would construct the Facilities.(3) In June of
1998, Carroll Payne gifted 25 shares of First Command stock to Freda Payne. It
was anticipated that First Command would rent parking spaces to current and
future tenants leasing space in IRA's building, and that
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(3) The individuals who formed First Command were (and are) members of the
Executive Committee of IRA and currently hold both Class A and Class B common
stock of IRA.
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the remaining parking spaces would be rented to IRA employees. The Board of
Directors of IRA believed it prudent (and continue to believe it prudent) to
utilize a separate legal entity to design, construct and operate the Facilities
in an effort to minimize IRA's legal liability risk with respect to such
activities.
First Command currently employs two full-time employees, has its own officers
and directors separate and distinct from IRA,(4) and, according to First Command
legal counsel, has complied with all corporate formalities necessary to be
respected as a separate legal entity for Texas law purposes. Authorized
representatives of First Command have entered into executory legal contracts for
the design and construction of the Facilities, and have executed a 99-year
ground lease with IRA with respect to the property upon which the Facilities
will be constructed. Construction of the Facilities began on June 20, 1998.
First Command anticipates hiring additional employees in the near future as
construction of the Facilities progresses and operations expand.
First Command has made a timely election under IRC Section 1362 to be treated as
an S corporation for federal income tax purposes.
PROPOSED ACTION STEPS
For the business purposes stated above, the Board of Directors of IRA and the
Board of Directors of First Command have decided to consolidate the operations
of IRA and First Command by effecting the Proposed Merger pursuant to the
following steps:
1. The operating assets and liabilities of First Command will be contributed
to a wholly-owned subsidiary of First Command prior to the Proposed Merger
in an effort to continue to segregate potential liabilities arising from
the parking garage from the assets of IRA. The subsidiary will be either a
single member limited liability company or will be a corporation that
elects under IRC Section 1361(b)(3) to be a qualified subchapter S
subsidiary.
2. First Command will obtain the financing (approximately $18 million) from
IRA necessary to effect the Proposed Merger. IRA will obtain financing
from an unrelated third-party lender (approximately $15 million).(5) In
the Proposed Merger, First Command will assume IRA's obligation to the
third-party lender.
3. IRA will merge (pursuant to Texas law) with and into First Command, with
First Command as the surviving corporation, in exchange for (i) First
Command voting
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(4) First Command's Board Members own stock of IRA and currently serve on either
IRA's Board of Directors or Executive Committee. Not all members of IRA's Board
of Directors and/or Executive Committee serve on First Command's Board. The
meetings of the Board of Directors of First Command and IRA are held at separate
times and are evidenced by separate minutes.
(5) Such financing will likely be supplied by Norwest Bank, N.A.
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common stock, (ii) First Command nonvoting common stock, and (iii)
approximately $18 million. As part of the Proposed Merger, (i) IRA's
Class A shareholders will exchange their IRA Class A stock solely for First
Command voting common stock (except to the extent any Class A shareholders
exercise dissenters rights and receive solely cash for their stock), (ii)
IRA's Class B shareholders who also own IRA Class A stock will exchange
their IRA Class B stock solely for First Command nonvoting common stock
(except to the extent such shareholders choose the cash option or
dissenters rights and receive cash for their stock), and (iii) IRA's
Class B shareholders who do not own IRA Class A stock will exchange their
IRA Class B stock solely for cash of approximately $28.24 per share
(without interest). The voting and nonvoting stock to be issued by First
Command will carry shareholder rights identical in all respects except for
the right to vote. The First Command shareholders immediately before
the Proposed Merger will continue to own their equity in First Command
after the Proposed Merger.
4. First Command will change its name to IRA.
5. First Command will make a timely election under IRC Section 1361(b)(3)
causing IRA Subsidiaries to be qualified subchapter S subsidiaries for
federal income tax purposes.
NEW SHAREHOLDERS' AGREEMENT
Authorized representatives of IRA have represented that in connection with the
Proposed Merger, the existing shareholder agreements will be terminated and a
new Shareholders' Agreement will be entered into by and between First Command
(which will have changed its name to IRA) and its shareholders. The new
Shareholders' Agreement will provide for, among other things, (i) restrictions
on the transfer of First Command stock that could cause First Command to exceed
the maximum number of shareholders permitted for an S corporation under the IRC,
(ii) a right of first refusal of First Command to purchase its stock from its
shareholders in the event of a sale or other disposition of such stock, the
death of a shareholder, any termination of marriage by death or divorce, any
threatened or actual bankruptcy of a shareholder for the purpose of protecting
the First Command's S election, the termination of a shareholder as a Texas life
insurance agent, or any threatened or actual levy by a creditor or claimant upon
First Command stock held by a shareholder, and (iii) certain provisions with
respect to the S corporation status of First Command. The new Shareholders'
Agreement will also provide that all First Command stock (voting and nonvoting)
will carry identical distribution and transfer rights, and that annual
distributions will be paid to shareholders to enable shareholders to pay federal
and state income tax resulting from the corporate income passed through to such
shareholders. Additionally, the new Shareholders' Agreement provides that no
binding agreement has been, or will be entered into altering a shareholder's
right to distribution or liquidation proceeds.
STATEMENT OF REPRESENTATIONS
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The following representations have been made by authorized representatives of
IRA and First Command, as reflected in the Statement of Facts and
Representations, dated July 1, 1998, with respect to the Proposed Merger:
a) The Proposed Merger will qualify as a statutory merger pursuant to
applicable provisions of the Texas Business Corporation Act.
b) The value of First Command stock and other consideration received by each
IRA shareholder will be approximately equal to the value of the IRA stock
surrendered in the exchange.
c) To the best knowledge and belief of the management of IRA, there is no plan
or intention on the part of the shareholders of IRA to sell, exchange, or
otherwise dispose of, reduce the risk of loss (by short sale or otherwise)
of the holding of, enter into any contract or other arrangement with
respect to, or consent to the sale or other disposition of (each of the
foregoing, a "disposition") a number of shares of First Command stock
received in the Proposed Merger that would reduce the IRA shareholders'
ownership of First Command stock to a number of shares having a value, as
of the date of the Proposed Merger, of less than 50% of the value of the
formerly outstanding IRA stock as of the same date. In addition, (i) there
has been no "disposition" of shares of IRA stock in anticipation of the
Proposed Merger and (ii) there is no plan or intention on the part of any
shareholders of IRA to effect a "disposition" of shares of IRA stock in
anticipation of the Proposed Merger. Moreover, (i) there has been no
distribution of property by IRA to a shareholder of IRA with respect to its
stock in anticipation of the Proposed Merger and (ii) there is no plan or
intention on the part of IRA to effect a distribution of property to a
shareholder of IRA with respect to its stock in anticipation of the
Proposed Merger. For purposes of this representation, IRA stock exchanged
for cash or other property, surrendered by dissenters, or exchanged for
cash in lieu of fractional shares of First Command stock have been treated
as outstanding IRA stock on the date of the Proposed Merger.
d) First Command has no plan or intention to reacquire any of its stock issued
in the Proposed Merger, other than pursuant to the right of first refusal
in Article III of the new Shareholders' Agreement.
e) There is no plan or intention to liquidate First Command; to merge First
Command with or into another corporation; or to cause First Command to sell
or otherwise dispose of any of the assets of IRA acquired in the Proposed
Merger, except for dispositions made in the ordinary course of business.
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f) The liabilities of IRA to be assumed by First Command and the liabilities
to which the assets of IRA are subject were incurred by IRA in the ordinary
course of business and are associated with the assets to be transferred.
g) Following the Proposed Merger, First Command will continue the historic
business of IRA or will use a significant portion of IRA's historic
business assets in a business.
h) There is no intercorporate indebtedness existing between IRA and First
Command which was acquired, or will be settled, at a discount.
i) Neither IRA nor First Command is an "investment company" as that term is
defined in IRC Section 368(a)(2)(F)(iii), or if either IRA or First Command
is an "investment company" pursuant to IRC Section 368(a)(2)(F)(iii),
neither is a company in which (i) more than 25% of the value of the
company's total assets is invested in the stock or securities of any one
issuer, nor in which (ii) more than 50% of the value of the company's
total assets is invested in the stock or securities of five or fewer
issuers, disregarding each company's ownership of its 50% or more owned
subsidiaries and deeming each company to own its ratable share of the
assets of each of such subsidiaries. For purposes of this representation,
the term "total assets" is defined in IRC Section 368(a)(2)(F)(iv).
j) The Class B nonvoting common stock of IRA constitutes stock for federal
income tax purposes.
k) IRA is not under the jurisdiction of a court in a Title 11 or similar case
within the meaning of IRC Section 368(a)(3)(A).
l) The total adjusted basis AND the fair market value of the assets of IRA to
be transferred by IRA to First Command will equal or exceed the sum of the
liabilities to be assumed by First Command plus the amount of the
liabilities to which the assets to be transferred are subject.
m) No options will be issued by IRA pursuant to any compensation plan prior to
or in connection with the Proposed Merger.
n) First Command will have a valid S election in effect at the time of the
Proposed Merger.
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o) IRA is not a financial institution eligible to use the reserve method of
accounting for bad debts as described in IRC Section 585.
p) At no relevant time has IRA been a life insurance company pursuant to
Subchapter L of the IRC.
q) At no relevant time has IRA had in effect an election pursuant to IRC
Section 936 (Puerto Rico and possession tax credit).
r) At no relevant time has IRA been a domestic international sales
corporation as defined in IRC Section 992(a).
s) All shareholders of IRA receiving stock in First Command pursuant to the
Proposed Merger are eligible S corporation shareholders with the meaning of
IRC Section 1361(b)(1).
t) The First Command nonvoting common stock issued in connection with the
Proposed Merger will have shareholder rights (in particular, rights to
distribution and liquidation proceeds) identical in all respects to the
shareholder rights of the First Command voting stock except for the right
to vote. No binding agreement has been, or will be entered into altering a
shareholder's right to distribution or liquidation proceeds.
u) The new Shareholder Agreement and the restrictions on the transfer of First
Command common stock reflected therein and in the Articles of Incorporation
(to which restrictions all First Command stock will be subject) do not have
as a principal purpose the avoidance of the "one class of stock"
requirement in IRC Section 1361(b)(1)(D).
v) At the time of the Proposed Merger or pursuant to the Proposed Merger,
neither IRA nor First Command will have issued a call option, warrant,
convertible debt or similar instrument, that is substantially certain to be
exercised by the holder and has a strike price substantially below the fair
market value of the underlying stock (other than the SARs or DERs issued
pursuant to the MAP).
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w) Compensation paid to any shareholder-employee of IRA (or any affiliate of
IRA) prior to or subsequent to the Proposed Merger will be for services
actually rendered and will be commensurate with amounts paid to third
parties bargaining at arm's-length for similar services.
x) Awards made under the MAP will be unfunded and unsecured obligations of IRA
and will not confer voting rights to participating individuals.
y) All MAP Participants who will receive awards under the MAP prior to or
pursuant to the Proposed Merger will either be employees or independent
contractors of IRA and will receive such awards in connection with the
performance of services to IRA or its subsidiaries. Subsequent to the
Proposed Merger, all MAP Participants will receive such awards in
connection with the performance of services to First Command or its
subsidiaries.
z) All compensation to be paid or accrued in connection with the MAP Units
will, after considering all other compensation to be paid or accrued,
constitute "reasonable compensation" as that term is defined in Treas. Reg.
Section 1.162-7 (and case law thereunder).
FEDERAL INCOME TAX CONSEQUENCES
Based on the foregoing statements of fact, business purpose and representations,
and based on the information set forth in the Documents, but subject to the
limitations and qualifications set forth in the Scope section below, it is our
opinion that:
1. The Proposed Merger should constitute a reorganization within the meaning
of IRC Section 368(a).
2. IRA and First Command should both be parties to the reorganization within
the meaning of IRC Section 368(b).
3. No gain or loss should be recognized by IRA upon the transfer of its assets
to First Command in exchange for First Command common stock, cash
(including cash in lieu of fractional shares and cash for dissenters, if
any), and the assumption by First Command of the liabilities of IRA (IRC
Section 361; IRC Section 357(a)).
4. No gain or loss should be recognized by First Command upon the issuance of
its common stock as partial consideration for the assets of IRA (IRC
Section 1032(a)).
5. The basis of the assets of IRA in the hands of First Command should be the
same as the basis of such assets in the hands of IRA immediately prior to
the Proposed Merger (IRC Section 362(b)).
6. The holding period of the assets of IRA in the hands of First Command
should include the holding period of such assets in the hands of IRA
immediately prior to the Proposed Merger (IRC Section 1223(2)).
7. No gain or loss should be recognized by an IRA shareholder upon the
exchange of his or her IRA stock solely for First Command stock (IRC
Section 354(a)).
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8. Provided that he or she is not related, under the constructive ownership
rules of IRC Section 318, to any First Command shareholder after the
Proposed Merger, an IRA shareholder who exchanges his or her IRA stock
solely for cash should recognize capital gain (or capital loss) to the
extent the cash received exceeds (or is exceeded by) the basis in his or
her IRA shares (IRC Section 302(b)).
9. The basis of First Command common stock received by an IRA shareholder
should be the same as his or her basis in the IRA stock surrendered in the
exchange, decreased by the amount of cash or the fair market value of boot
received, if any, and increased by any gain recognized on the exchange (IRC
Section 358(a)).
10. The holding period of First Command stock received by an IRA shareholder
should include the period during which the IRA shareholder held the IRA
stock surrendered in the exchange (provided the IRA stock was a capital
asset in the hands of such shareholder on the date of the exchange (IRC
Section 1223(1)).
11. The Proposed Merger should not constitute a reorganization under IRC
Section 368(a)(1)(F).
12. The conversion of SARs and DERs of IRA into SARs and DERs of First Command
should not constitute boot in the Proposed Merger. Consequently, those
individuals owning IRA SARs and DERs immediately prior to the Proposed
Merger should not recognize gain or loss on the exchange of such SARs and
DERs for First Command SARs and DERs.
13. The S election currently in effect for First Command should remain in
effect during the Proposed Merger, and the combined IRA/First Command
entity should be an S corporation immediately after the Proposed Merger.
14. The new Shareholder Agreement should not cause First Command to be
considered to have more than a single class of stock for purposes of IRC
Section 1361(b)(1)(D).
15. The grant or holding of an SAR and/or DER should not result in the
individual plan participant being treated as a shareholder for purposes of
subchapter S.
16. First Command will be subject to the built-in gains tax provisions of IRC
Section 1374 to the extent any asset received pursuant to the Proposed
Merger has an unrealized built-in gain at the time of the Proposed Merger
and such asset is disposed of by First Command during the recognition
period (as defined in IRC Section 1374(d)(7)) after the
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Proposed Merger. If an asset received in the Proposed Merger is disposed
of after the recognition period, IRC Section 1374 should not apply.
Based on the foregoing statement of fact and representations, and based on
the information set forth in the Documents, but subject to the limitations
and qualifications set forth in the Scope section below, it is our opinion as
to the issues related to IRA's reporting and withholding requirements under
the IRC in conjunction with the implementation of the MAP that:
1. The grant or holding of a SAR should not trigger the constructive receipt
of income to the individual plan participant under IRC Section 451.
2. The grant or holding of a DER should not trigger the constructive receipt
of income to the individual plan participant under IRC Section 451.
3. The payment made by IRA under the MAP should be deductible by IRA in the
year, and in the amount, included in each individual participant's taxable
income.
4. The benefits under the MAP should be subject to Federal Insurance
Contributions Act ("FICA") taxes and Self Employment Contributions Act
("SECA") taxes in the year the individual participant actually or
constructively receives payment.
5. Under the current design and drafting of the MAP, the MAP benefits should
not be subject to IRC Section 280G "excess parachute payment" penalties.
SCOPE OF OPINION
The scope of this opinion is expressly limited to the federal income tax issues
specifically addressed above in the section entitled "Federal Income Tax
Consequences." Specifically, our opinion has not been requested and none is
expressed with regard to any foreign, state, or local income tax consequences
for IRA, First Command or any of their shareholders. Our opinion has not been
requested and none is expressed with regard to the federal, state, or local bank
regulatory consequences for IRA, FCB, and First Command or with regard to
federal, state or local insurance agency regulatory laws. We have made no
determination nor expressed any opinion as to any limitations, including those
which may be imposed under IRC Section 382, on the availability of net operating
loss carryovers (or built-in gains or losses), if any, after the Proposed
Merger, nor on the application (if any) of the alternative minimum tax to this
transaction. We have not expressed any opinion on any issues relating to the
IRA Subsidiaries nor on the application of any consolidated return rules. We
have not expressed an opinion on employee benefit issues, unless expressly
stated above. Further, we have made no determination as to whether IRA's
dividend distributions have been sufficient to eliminate any undistributed
personal holding company tax liability, if applicable. We
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have made no determination nor expressed any opinion as to the fair market value
of the (i) SARs, (ii) DERs, (iii) MAP benefits, (iv) any assets to be
transferred in connection with the Proposed Merger, and/or (v) any stock
exchanged or canceled in connection with the Proposed Merger.
Our opinion, as stated in this letter, is based upon the analysis of the IRC,
the Regulations thereunder, current case law, and published rulings as of the
date of this letter (the "Authorities"), as well as the Statement of Facts and
Representations provided us by the managements of IRA and First Command (and
their representatives). The foregoing Authorities are subject to change, and
such change may be retroactively effective. If so, our views, as set forth
above, may be affected and may not be relied upon. Further, any variation or
differences in the facts or representations recited herein, for any reason,
might affect our conclusions, perhaps in an adverse manner, and make them
inapplicable. In addition, we have undertaken no obligation to update, and
therefore will not be updating, this opinion for changes in facts or law
occurring subsequent to the date hereof.
This opinion is being rendered only to the addressees in connection with the
Proposed Merger, and is solely for their benefit and solely for the purpose set
forth above. This opinion may not be relied upon by any other person or
persons, or used for any other purposes, including, but not necessarily limited
to, filings with governmental agencies without our prior written consent.
However, we do consent to have this opinion included in a preliminary proxy
filing with the SEC and the Office of Thrift Supervision on or around July 6,
1998.
This letter is an opinion of our firm as to the interpretation of existing law
and, as such, is not binding on the Internal Revenue Service or the courts.
This letter may be used by IRA and First Command in responding to inquiries from
the Internal Revenue Service regarding the Proposed Merger.
Very truly yours,
/s/ Ernst & Young LLP
<PAGE>
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
PROXY FOR SPECIAL MEETING OF SHAREHOLDERS
___________________, 1998
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
The undersigned hereby appoints Robert F. Watson and Martin R. Durbin, as
Proxies, each with the power to appoint his or her substitute, and hereby
authorizes them to represent and to vote, as designated below, all the shares of
(i) Class A Voting Common Stock, $0.10 par value per share and (ii) Class B
Non-Voting Common Stock, $0.02 par value per share, of INDEPENDENT RESEARCH
AGENCY FOR LIFE INSURANCE, INC. (the "Company"), that the undersigned is
entitled to vote at the Special Meeting of Shareholders of the Company to be
held on ___________________, 1998, at ____ a.m., Fort Worth, Texas time, and at
any adjournment or postponement thereof, on all matters set forth in the Notice
of Special Meeting and Proxy Statement dated ________________, 1998, a copy of
which has been received by the undersigned, as follows:
SEE REVERSE SIDE
<PAGE>
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC.
THIS PROXY, WHEN PROPERLY EXECUTED AND DELIVERED, WILL BE VOTED AS SPECIFIED
BELOW. IF NO SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED FOR EACH OF THE
PROPOSALS. THE PROXIES CANNOT VOTE YOUR SHARES UNLESS YOU PROPERLY SIGN AND
RETURN THIS CARD.
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THE BOARD OF DIRECTORS RECOMMENDS THAT THE SHAREHOLDERS VOTE FOR EACH OF THE
PROPOSALS. PLEASE REVIEW CAREFULLY THE PROXY STATEMENT DELIVERED WITH THIS
PROXY.
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1. Approval and adoption of the Agreement and Plan of Merger, dated as of July
1, 1998, by and among the Company and First Command Financial Corporation.
/ / FOR / / AGAINST / / ABSTAIN
2. The Proxies are authorized to vote upon such matters as may properly come
before the meeting or any adjournment or postponement thereof as they
determine to be in the best interests of the Company.
The undersigned hereby revokes all proxies heretofore given by the undersigned
to vote at said meeting or any adjournment or postponement thereof.
------------------------------------------
Signature
Dated: , 1998
------------ --- ------------------------------------------
Signature, if held jointly
IMPORTANT: Please mark, sign, date and return this Proxy in the enclosed
envelope. No postage is required if mailed in the United States. Please date
this Proxy and sign your name exactly as it appears hereon. Where there is more
than one owner, each should sign. When signing as an attorney, administrator,
executor, guardian or trustee, please add your title as such. If executed by a
corporation, the Proxy should be signed by a duly authorized officer and state
the full name of the corporation.
Notwithstanding shareholder approval of the proposal, the Company reserves the
right to terminate the Merger Agreement and abandon the Merger, upon the terms
and subject to the conditions set forth in the Merger Agreement.
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FORM OF ELECTION OF
CLASS A/B SHAREHOLDERS OF
INDEPENDENT RESEARCH AGENCY FOR LIFE INSURANCE, INC. ("COMPANY")
This Form of Election, when properly submitted by a holder of Class B
Non-Voting Common Stock of the Company, par value $0.02 per Share ("Class B
Stock"), who is also a holder of Class A Voting Common Stock of the Company,
par value $0.10 per Share (a "Class A/B Shareholder"), will permit such Class
A/B Shareholder to elect to receive either (i) one share of Nonvoting Common
Stock, par value $0.01 per share ("Surviving Corporation Nonvoting Stock"),
of First Command Financial Corporation, a Texas corporation (the "Class B
Nonvoting Stock Consideration"), for each share of Class B Stock held by such
Class A/B Shareholder or (ii) $28.24 in cash (the "Class B Cash
Consideration") for each share of Class B Stock held by such Class A/B
Shareholder, in connection with the merger (the "Merger") of the Company with
and into
FIRST COMMAND FINANCIAL CORPORATION ("FIRST COMMAND").
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A CLASS A/B SHAREHOLDER MAY NOT ELECT TO RECEIVE BOTH THE CLASS B NONVOTING
STOCK CONSIDERATION AND THE CLASS B CASH CONSIDERATION.
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BY HAND DELIVERY FACSIMILE BY
OR OVERNIGHT: TRANSMISSION: MAIL:
First Command Bank (888) 763-7600 First Command Bank
4100 South Hulen Street or 4100 South Hulen Street
Fort Worth, Texas 76109 (817) 763-0557 Fort Worth, Texas 76109
Attention: Paying Agent Attention: Paying Agent
CONFIRM BY TELEPHONE:
(888) 763-7600 or (817) 763-0000
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-----------------------------------
First Command Bank is the Paying Agent.
FOR INFORMATION, CALL (888) 763-7600 OR (817) 763-0000
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<PAGE>
PLEASE READ THE INSTRUCTIONS IN THIS FORM OF ELECTION CAREFULLY BEFORE
COMPLETING THIS FORM OF ELECTION.
ELECTION OF CLASS B STOCK
(Attach additional sheets if necessary).
See "Election" and Instruction 6.
MARK ONLY ONE BOX.
Number of Shares of Class B Stock
held by the Class A/B Shareholder:
Name and Address of Registered Holder(s)
(Please fill in, if blank, exactly as
name(s) appear(s) on certificate(s))
Class B Nonvoting Stock Election:
/ /
Class B Cash Election:
/ /
/ / Check this box if this election represents a revocation of any earlier
election.
________________________, 1998, IS THE ELECTION DEADLINE BY WHICH DATE A
COMPLETED FORM OF ELECTION MUST BE RECEIVED BY THE PAYING AGENT IN ORDER FOR ANY
CLASS B NONVOTING STOCK ELECTION OR CLASS B CASH ELECTION (AS SUCH TERMS ARE
DEFINED BELOW) CONTAINED HEREIN TO BE VALID. ANY FORM OF ELECTION RECEIVED BY
THE PAYING AGENT AFTER THE ELECTION DEADLINE SHALL BE DEEMED TO INDICATE A
NON-ELECTION (AS DEFINED BELOW).
IN THE EVENT A FORM OF ELECTION IS DELIVERED TO THE PAYING AGENT ON
BEHALF OF A CLASS A/B SHAREHOLDER PRIOR TO THE ELECTION DEADLINE AND NOT
REVOKED PRIOR TO SUCH DEADLINE, OR IF A FORM OF ELECTION IS DELIVERED TO THE
PAYING AGENT AFTER THE ELECTION DEADLINE, THE COMPANY OR THE SURVIVING
CORPORATION, AS THE CASE MAY BE, WILL DEEM SUCH DELIVERY A REVOCATION OF ANY
OBJECTIONS TO THE MERGER PREVIOUSLY FILED WITH THE COMPANY FOR PURPOSES OF
EXERCISING DISSENTER'S RIGHTS AND A WAIVER OF ANY FUTURE RIGHTS TO SUCH
EXERCISE.
Information as to the federal income tax consequences of receiving Class B
Nonvoting Stock Consideration or Class B Cash Consideration in exchange for your
Class B Stock is set forth under the caption "SPECIAL FACTORS--Certain Federal
Income Tax Consequences of the Merger" in the Proxy Statement furnished to you
concurrently herewith. You are urged, in addition, to consult with your tax
advisor.
TO FIRST COMMAND BANK:
In connection with the Merger, and pursuant to an Agreement and Plan of
Merger, dated as of July 1, 1998, (the "Merger Agreement"), between the
Company and First Command, the undersigned hereby makes the election set
forth herein concerning the Class B Stock held by the undersigned, who is a
Class A/B Shareholder. Pursuant to such election set forth herein, the
undersigned elects that each share of Class B Stock held by the undersigned
issued and outstanding immediately prior to the effective time of the Merger,
subject to and upon the terms and conditions of the Merger Agreement, will be
converted into (i) the right to receive the Class B Nonvoting Stock
Consideration (a "Class B Nonvoting Stock Election"), (ii) the Class B Cash
Consideration (the "Class B Cash Election") or (iii) the right to make no
election
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<PAGE>
(a "Non-Election"), in which case the undersigned will receive the Class B
Nonvoting Stock Consideration. See "THE PROPOSED MERGER--Shareholder
Elections." Except as expressly provided herein, capitalized terms shall have
the meanings ascribed to them in the Proxy Statement.
The undersigned understands that the elections referred to above are
subject to certain terms, conditions and limitations that are set forth in
the Merger Agreement, the Instructions below and the Proxy Statement with
respect to the Merger (including all documents incorporated therein, and as
it may be amended from time to time, the "Proxy Statement") delivered prior
hereto. The Merger Agreement is included as Annex A to the Proxy Statement.
Extra copies of this Form of Election and the Proxy Statement may be
requested from the Paying Agent, at the addresses or phone numbers shown
above. The filing of this Form of Election with the Paying Agent is
acknowledgment of the receipt of the Proxy Statement. The undersigned
understands and acknowledges that all questions as to the validity, form and
eligibility of any election shall be reasonably determined by the Paying
Agent, and such determination shall be final and binding.
ELECTION
The appropriate election(s) must be made in the box above in order to
make a Class B Nonvoting Stock Election, a Cash Election or Non-Election with
respect to all the shares of Class B Stock held of record by such Class A/B
Shareholder.
ALL CLASS A/B SHAREHOLDERS WISHING TO MAKE A CLASS B NONVOTING STOCK
ELECTION OR A CLASS B CASH ELECTION MUST ENSURE THAT THE PAYING AGENT RECEIVES A
PROPERLY COMPLETED FORM OF ELECTION PRIOR TO THE ELECTION DEADLINE. ALL CLASS
A/B SHAREHOLDERS SUBMITTING ELECTION FORMS AFTER SUCH TIME WILL BE DEEMED TO
HAVE MADE A NON-ELECTION REGARDLESS OF THE ELECTION SPECIFIED ON SUCH FORM.
THE PAYING AGENT RESERVES THE RIGHT TO DEEM THAT YOU HAVE MADE A
NON-ELECTION IF:
A. NO ELECTION CHOICE IS INDICATED IN THE BOX ABOVE;
B. YOU FAIL TO FOLLOW THE INSTRUCTIONS ON THIS FORM OF ELECTION OR
OTHERWISE FAIL TO PROPERLY MAKE AN ELECTION;
C. A COMPLETED FORM OF ELECTION IS NOT ACTUALLY RECEIVED BY THE ELECTION
DEADLINE; OR
D. YOU MARK BOTH THE "CLASS B NONVOTING STOCK ELECTION" BOX AND THE
"CLASS B CASH ELECTION" BOX.
CONSUMMATION OF THE MERGER IS SUBJECT TO THE SATISFACTION OF CERTAIN
CONDITIONS. NO PAYMENTS WILL BE MADE PRIOR TO THE EFFECTIVE TIME OF THE MERGER.
INSTRUCTIONS
This Form of Election is to be completed and submitted to the Paying Agent
prior to the Election Deadline by those Class A/B Shareholders desiring to make
a Class B Nonvoting Stock Election or Class B Cash Election.
Your election is subject to certain terms, conditions and limitations
that have been set out in the Merger Agreement and the Proxy Statement. The
Merger Agreement is included as Annex A to the Proxy Statement. Extra copies
of the Proxy Statement may be requested from the Paying Agent at the
addresses or phone numbers shown above. The filing of this Form of Election
with the Paying Agent is acknowledgment of the receipt of the Proxy Statement.
1. ELECTION DEADLINE. For any Class B Nonvoting Stock Election or Class B
Cash Election contained herein to be considered, this Form of Election, properly
completed, must be received by the Paying Agent at one of the addresses shown
above on this Form of Election no later than 5:00 p.m. Central Daylight Time on
the Election Deadline.
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<PAGE>
2. REVOCATION OR AMENDMENT OF FORM OF ELECTION. An election may be
revoked or amended, but only by written notice received by the Paying Agent
prior to the Election Deadline. Upon any such revocation, unless a duly
completed Form of Election is thereafter submitted in accordance with the
procedures set forth in the Proxy Statement, such shareholder will be deemed to
have made a Non-Election.
3. DELIVERY OF FORM OF ELECTION. This Form of Election, properly
completed and duly executed, should be delivered to the Paying Agent at one of
the addresses set forth above.
4. INADEQUATE SPACE. If the space provided herein is inadequate, the
number of shares of Class B Stock held by the Class A/B Shareholder should be
listed on additional sheets and attached hereto.
5. SIGNATURES ON ELECTION FORM.
(a) All signatures must correspond exactly with the name written on the
face of the certificate(s) representing the Class B Stock, without alteration,
variation or any change whatsoever.
(b) If the certificate(s) representing the Class B Stock is (are) held
of record by two or more joint owners, all such owners must sign this Form of
Election.
(c) If the shares of Class B Stock held by a Class A/B Shareholder are
registered in different names on several certificates, it will be necessary to
complete, sign and submit as many separate Forms of Election as there are
different registrations of certificates.
6. ELECTIONS. Each Class A/B Shareholder is entitled to make a Class
B Nonvoting Stock Election and/or a Class B Cash Election with respect to his
or her Class B Stock, provided the Form of Election for any holder making
such election(s) is properly completed and received by the Paying Agent prior
to the Election Deadline. To properly complete the box, the number of shares
of Class B Stock held by each Class B Shareholder must be written in the
column under the heading "Number of Shares of Class B Stock," and either the
"Class B Nonvoting Stock Election" box or the "Class B Cash Election" box
should be marked. MARK ONLY ONE BOX. A Class A/B Shareholder submitting a
Form of Election may not elect to receive both the Class B Nonvoting Stock
Consideration and the Class B Cash Consideration.
7. MISCELLANEOUS. Neither the Company nor the Paying Agent is under any
duty to give notification of defects in any Form of Election. The Company and
the Paying Agent shall not incur any liability for failure to give such
notification, and each of the Company and the Paying Agent has the absolute
right to reject any and all Forms of Election not in proper form or to waive any
irregularities in any Form of Election.
8. INFORMATION AND ADDITIONAL COPIES. Information and additional copies
of this Form of Election may be obtained by telephoning toll-free (888)
763-7600, or, in Fort Worth, (817) 763-0000.
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