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Purchase And Sale Agreement Part Ii
PURCHASE AND SALE AGREEMENT
PART II
15. Conditions Precedent to the Buyer's Obligations. The obligations of the Buyer hereunder shall be subject to the fulfillment in all respects by the Seller and the Stockholder of the following conditions at or prior to the closing or the waiver thereof by the Buyer:
(a) Each of the warranties and representations of the Seller and Stockholder contained herein shall have been true and correct in all material respects as of the date of execution hereof and shall be so on the closing date as evidenced by a certificate of the Seller and the Stockholder to that effect, except for matters that may have taken place after the execution hereof and which are expressly permitted hereunder or assented to by the Buyer hereafter.
(b) The Seller and the Stockholder shall have performed and complied with, in all material respects, all covenants and agreements required by this Agreement to be performed or complied with at or prior to the closing date.
(c) The Seller and the Stockholder shall use their best efforts to preserve all of the assets including the Subject Accounts to be sold hereunder.
(d) The Seller shall allow the Buyer's employees and representatives to communicate with the directors, officers, employees and agents of the Seller at reasonable times.
(e) The Seller shall furnish to the Buyer such reasonable information and documents with respect to the Subject Accounts and other assets to be sold hereunder as shall be requested from time to time.
(f) There shall be no pending or threatened litigation, arbitration or administrative proceedings of a material nature against the Seller or the Stockholder having any material adverse affect upon the assets to be sold hereunder.
(g) There shall have been no material adverse change in the condition, financial or otherwise, of the Seller and the assets to be sold to the Buyer hereunder. A material adverse change in the condition of the Seller's business shall be deemed to include (but shall not be limited to) loss of Subject Accounts which, in the aggregate, produced Net Annual Commissions of more than S5,000 in the aggregate. Loss of a Subject Account shall include (i) expiration of any insurance policy in effect for such account during the 12 months ending November 30, 19__, without the same being renewed, (ii) receipt by the Seller of notice that a Subject Account does not intend to renew its business through the facilities of the Seller when current insurance business expires, (iii) the filing by or against a Subject Account of any petition under bankruptcy or other insolvency laws or (iv) acquisition (or execution of a binding agreement to acquire) of substantially all of the assets or capital stock of a Subject Account.
(h) The Seller shall have purchased, at its own expense, the run-off or tail endorsement under its errors and omissions policy as required pursuant to section 14(z) hereof.
For the period from the execution hereof through the closing hereunder, the Seller shall
(i) continue to operate its business in the normal, usual and customary fashion consistent with the manner in which it has been operated heretofore;
(ii) endeavor, to the best of its ability, to renew all insurance coverages scheduled for renewal between the execution of this Agreement and the Accounting Date;
(iii) process all renewals scheduled to occur after the Accounting
Date in accordance with the normal and customary advance renewal patterns and procedures of the Seller heretofore;
(iv) not, in any manner, suffer or permit any of the assets to be sold and transferred hereunder to be pledged, hypothecated or in any manner be encumbered, nor sell, assign or in any manner convey or transfer the same except as provided herein.
(j) At the closing, the Stockholder shall have executed and delivered to the Buyer an Employment Agreement in the form of EXHIBIT "l5 (j)" prior to execution of which the Stockholder shall have made himself available for a complete physical examination by a physician approved by the Buyer, shall be found to be insurable and shall have completed such applications and forms as may be necessary for the Buyer to obtain insurance on his life having a face amount of coverage of not less than $2.0 million/ which policy shall be in force and effect on the Closing Date. On the Closing Date, the Stockholder shall be ready, willing and able to perform his obligations under and pursuant to the said Employment Agreement.
(k) The Seller and Stockholder shall communicate promptly to the Buyer forthwith upon their learning of any facts or events which may arise or occur hereafter, if any, which (i) would render any statement herein or information furnished hereunder misleading or materially inaccurate, (ii) which would result in any material change in the value or condition of any of the assets to be sold to the Buyer hereunder or (iii) which otherwise would have a material adverse effect upon the transaction contemplated hereunder.
(l) The Buyer shall have received from counsel for the Seller an opinion with respect to the status of the Seller, the assets to be sold hereunder and such other matters as may be requested by the Buyer, in the reasonable exercise of its discretion, in form and substance satisfactory to the Buyer.
16. Representations and Warranties of the Buyer. The Buyer does hereby represent and to the Seller and the Stockholder as follows, which warranties and representations are true and complete as of the date hereof and, at the option of the Seller, as a condition precedent to the fulfillment of the obligations of the Seller hereunder, shall be true and complete as of the closing hereunder and shall survive the closing hereunder:
(a) The Buyer is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts and is duly qualified in each jurisdiction in which the Buyer owns or leases properties or conducts operations and is required to qualify as a foreign corporation with full power and authority (corporate and other) to carry on the business in which it is engaged and to execute and deliver and carry out the transactions contemplated by this Agreement.
(b) The execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all requisite corporate action and do not and will not result in a breach of or constitute a default under any provision of the Articles of Incorporation or any By-Laws of the Buyer or any lease, license or other agreement to which it is a party or is bound, or by which any of its properties or assets may be bound or affected, or violate any order, writ/ injunction or decree of any court or administrative agency.
(c) On and after the execution hereof and the closing hereunder, this Agreement will be a valid and binding obligation of the Buyer enforceable in accordance with its terms except as limited by bankruptcy, insolvency and similar laws affecting creditors' rights generally and by equitable principles.
(d) The Buyer has adequate markets in which to renew all existing property and casualty insurance business for the Subject Accounts and has sufficient and adequately trained personnel to service the Subject Accounts after the closing in a proper and businesslike manner.
(e) There is no pending litigation against the Buyer nor any pending proceedings against the Buyer before any administrative or licensing authority, and the Buyer has no knowledge of any threatened litigation against it or any threatened proceedings against it before any administrative or licensing authority which in any manner has any material affect upon its financial condition, its operations or its ability to enter into this Agreement and carry out the transactions contemplated hereby.
(f) The Buyer is not a party to any agreement, whether written or oral, which in any manner restricts or impairs its right to enter into this Agreement and to carry out the terms and conditions hereof, and no approval or consent is necessary from any government agency or any individual or entity not a party hereto in order to effect the transactions embodied herein.
17. Conditions Precedent to the Seller's and Stockholder's Obligations. The obligations of the Seller and the Stockholder hereunder shall be subject to the fulfillment in all respects by the Buyer of the following conditions at or prior to the closing or the waiver thereof by the Seller and the Stockholder:
(a) Each of the warranties and representations of the Buyer contained herein shall have been true and correct in all material respects as of the date of execution hereof and shall be so on the closing date as evidenced by a certificate from the Buyer to that effect, except for matters that may have taken place after the execution hereof and which are expressly permitted hereunder or assented to by the Buyer hereafter.
(b) The Buyer shall have performed and complied with, in all material respects, all covenants and agreements required by this Agreement to be performed or complied with at or prior to the closing date.
(c) There shall be no pending or threatened litigation, arbitration or administrative proceedings of a material nature against the Buyer having any material affect upon its financial condition or operations of its business or its ability to enter into and carry out the transactions contemplated by this Agreement.
(d) The Buyer shall communicate promptly to the Seller and the Stockholder any facts or events which may arise or occur hereafter, if any, which (i) would render any statement herein or information furnished hereunder misleading or materially inaccurate or (ii) which would result in any material change in the financial and business condition of the Buyer.
18. Closing. The closing hereunder shall take place at 2:00 p.m., at the office of counsel for the Buyer, David A. Bakst, Esquire, Morrison, Mahoney & Miller, 250 Summer Street, Boston, Massachusetts 02210, on December 1, 19__.
(a) At the closing, the Seller and Stockholder shall deliver:
(i) A Bill of Sale, assignment and/or other instruments of conveyance as shall be reasonably required to transfer to the Buyer good, valid and marketable title and beneficial ownership of all of the assets referred to in section 1 hereof, free and clear of all liens, claims, security interests, encumbrances, restrictions or other charges of any kind;
(ii) a Certificate of Vote in form and substance satisfactory to the Buyer attesting to the authority of the Seller to enter into and carry out the requirements and intent of this Agreement;
(iii) evidence in form and substance satisfactory to the Buyer that the Seller has made all necessary filings to withdraw its registration and use of the trade name "Gigantic Insurance Agency";
(iv) a Certificate of Good Standing issued by the Massachusetts Secretary of State within not more than 30 days prior to the Closing Date;
(v) a Certificate of Good Standing and Waiver of Tax Lien issued by the Massachusetts Department of Revenue within not more than 30 days prior to the Closing Date;
(vi) the Employment Agreement with the Stockholder required pursuant to section 15(j);
(vii)an opinion of counsel to the Seller and Stockholder required pursuant to section 15 (l);
(viii)all files, expiration records, dailies and other documents relating to the Subject Accounts, all of which shall be f.o.b. the Seller's premises. The Seller shall provide immediate access to its premises so that the Buyer may take possession of such assets; and
(ix) such other instruments and documents of conveyance and assignment as may be reasonably necessary to transfer title to the assets to be acquired hereunder to the Buyer and to carry out the requirements and intent hereof.
(b) At the closing, the Buyer shall deliver:
(i) the funds required by section 3(a) hereof;
(ii) The Employment Agreement with the Stockholder required pursuant to section 15(j);
(iii) a Certificate of Vote in form and substance satisfactory to the Seller attesting to the authority of the Buyer to enter into and carry out the requirements and intent of this Agreement; and
(iv) such other instruments and documents as may be reasonably necessary to carry out the requirements and intent hereof.
(c) After the closing, all parties shall execute and deliver such additional instruments and documents as reasonably may be required to transfer to the Buyer title to the subject assets and to carry out the terms, conditions and intent hereof.
19. No Assumption of Liabilities by Buyer. Except as expressly and specifically provided herein, the Buyer shall be under no obligation to assume and shall not be deemed to have assumed any obligation, liability, contract or commitment of the Seller or the Stockholder of any kind whatsoever including, but not limited to, any liability under any employment agreement, collective bargaining or other labor agreement, any agreement containing severance or termination pay arrangements, deferred compensation agreement, consulting arrangement, pension or profit sharing plan, stock option or purchase plan or other employee contract, all of which liabilities shall remain the exclusive obligation of the Seller and/or the Stockholder.
20. Seller and Stockholder's Indemnification of Buyer. Subject and limited to an aggregate maximum sum of $2,850,000, the Seller and the Stockholder, jointly and severally, hereby agree to indemnify, reimburse, hold harmless and defend the Buyer of and from any and all debts, claims, taxes, costs and expenses of any and every nature whatsoever (including attorneys' fees) resulting from
(a) any and all errors and omissions claims arising out of or with respect to insurance policies placed or which should have been placed by the Seller for the Subject Accounts prior to the Closing Date hereunder,
(b) the operation and conduct of the Seller's business prior to the Closing hereunder,
(c) any obligations or liabilities of the Seller or the Stockholder and
(d) any breach by the Seller or the Stockholder of any of the obligations, undertakings, agreements, covenants, provisions, representations or warranties made by the Seller or the Stockholder herein or in any agreement, document or certificate delivered by it or them in connection therewith; provided, however, the foregoing obligation to reimburse the Buyer shall be net of actual tax savings incurred by the Buyer and net of any insurance proceeds actually received by the Buyer on account of the subject claim.
21. Buyer's Indemnification of Seller and Stockholder. The Buyer hereby agrees to indemnify, reimburse, hold harmless and defend the Seller and the Stockholder of and from any and all debts, claims, taxes, costs and expenses of any and every nature whatsoever (including attorneys' fees) resulting from
(a) its operation and conduct of the business acquired by the Buyer hereunder after the Closing hereunder; provided, however, the Buyer shall have no obligation or duty to detect or discover latent errors and omissions of the Seller or Stockholder (including their agents, servants and employees) with respect to insurance business placed or which should have been placed by the Seller or Stockholder prior to the Closing Date for the Subject Accounts nor shall the Buyer indemnify, defend or hold the Seller and Stockholder harmless of any claim with respect to such latent errors and omission,
(b) any obligations or liabilities of the Buyer and
(c) any breach by the Buyer of any of the obligations, agreements, covenants, provisions, representations or warranties made by the Buyer herein or in any agreement, document or certificate delivered by it in connection herewith; provided, however, the foregoing obligation to reimburse the Seller and Stockholder shall be net of any actual tax savings incurred by the Seller and net of any insurance proceeds actually received by the Seller or Stockholder on account of the subject claim.
22. Procedure for Indemnification. Within 10 days after the receipt by the party seeking indemnification hereunder (hereinafter referred to as the "Indemnitee" of written notice of the commencement of any action or the assertion of any claim, liability or obligation by a third party (whether by legal process or otherwise), against which claim, liability or obligation the other party to this Agreement (hereinafter the "Indemnitor") is or may be required under this Agreement to indemnify such Indemnitee, the Indemnitee will, if a claim thereon is to be or may be made against the Indemnitor, notify the Indemnitor in writing of the commencement or assertion thereof (the "Claim Notice") and give the Indemnitor a copy of such claim, process and all legal pleadings. The Indemnitor shall have the right to contest and to conduct the defense of such action with counsel of reputable standing by giving notice to the Indemnitee of its election to do so within 10 days of the delivery of the Claim Notice, and the Indemnitee may participate in such defense by counsel of its choosing at its own expense. Upon the assumption of such defense of claim by the Indemnitor, the Indemnitee shall be entitled, upon its request, to complete timely status reports of such proceedings, and any counsel retained by the Indemnitor shall be instructed to respond directly to the Indemnitee's requests for such status reports and any other information with respect to such claim reasonably requested by the Indemnitee. A failure by the Indemnitor within such 10 day period to notify the Indemnitee of its assumption of the defense of such action shall be deemed to be a waiver of the Indemnitor's right to assume the defense of such and the Indemnitee shall thereafter be entitled to contest and conduct the defense of such action with counsel of reputable standing and to settle and pay such claim on its own. If the Indemnitee shall be required by judgment or a settlement agreement or other compromise of a claim to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee hereunder, such amount plus all reasonable expenses incurred by the Indemnitee in accordance with such obligation or liability including, without limitation, reasonable attorneys' fees and costs of investigation) shall be promptly paid by the Indemnitor to the Indemnitee. The Indemnitee shall not settle or compromise any claim, action or proceeding without the prior written consent of the Indemnitor which shall not be unreasonably withheld, delayed or conditioned. The Indemnitee shall use reasonable efforts to mitigate any damage, loss, cost, expense, liability or obligation with respect to which it shall be entitled to indemnification hereunder. Failure of the Indemnitee to give the Claim Notice to the Indemnitor within the 10 day period required hereunder shall not affect the Indemnitee's rights to indemnification hereunder except if and then only to the extent that) the Indemnitor incurs additional expenses or the Indemnitor's defense of such claim is actually prejudiced by reason of such failure to give timely notice. With respect to claims other than third-party claims, the Indemnitee shall use reasonable efforts to notify the Indemnitor of such claims, but failure of the Indemnitee so to give notice to the Indemnitor shall not affect the rights of the Indemnitee to indemnification hereunder.
23. Buyer's Right of Offset. Any sums which the Seller or the Stockholder may owe to the Buyer hereunder, whether on account of the obligation to indemnify the Buyer for certain actions or on account of any breach of warranty, representation or covenant herein contained or provided for or on account of premiums or commissions which the Buyer may be required to pay or allow as credit to the Subject Accounts, which premiums or commissions are the obligation of the Seller, may be offset by the Buyer against any and all sums which the Buyer may owe to the Seller hereunder; provided, however, such right of offset shall not relieve the Seller or the Stockholder of their obligation to indemnify or reimburse the Buyer, as aforesaid, but shall be only as a matter of convenience for the Buyer should it elect to make such offset in whole or in part.
24. Protective and Restrictive Covenants. In recognition of the fact that the Seller is engaged in a personal service business involving confidential information and personal relationships with insureds, the success of which business is in large part due to the exclusive retention of confidential information and continuation of such personal relationships with insureds, the Seller and the Stockholder do hereby, jointly and severally, covenant and agree as follows and acknowledge that the following covenants are reasonably necessary for the protection of the Buyer and may be enforced to the extent set forth herein or to such extent as any court of competent jurisdiction may deem reasonable and proper provided there shall be no breach by the Buyer of its obligations to make payments of the purchase price and of the consideration for the within covenants:
(a) All information concerning the insurance of the Subject Accounts, including expiration data in connection therewith, is confidential information constituting trade secrets and will be treated as such and that they will not, from the Accounting Date, or closing date, if later, directly or indirectly, make use of such information concerning the Seller's business for their own benefit, or the benefit of anyone else, nor will they, directly or indirectly, divulge such information to anyone except as may be required by law.
(b) Except on behalf of or for the benefit of the Buyer, they will not, for a period of 72 months following the Accounting Date, directly or indirectly, solicit, attempt to obtain, accept from or in any way transact insurance business of any nature, whether property, casualty, life or other, for or on behalf of or with any of the Subject Accounts being sold to the Buyer hereunder nor, directly or indirectly, aid or assist any other party in the solicitation of insurance business from the Subject Accounts or the transaction of insurance business therefor.
(c) Except on behalf of or for the benefit of the Buyer, for a period of 72 months following the Accounting Date/ they will not solicit, attempt to obtain, accept or transact insurance business or in any manner engage in the business of insurance agent, insurance broker, salesperson or insurance advisor, consultant or risk manager with respect to insurance business of any nature, whether property, casualty, life or other, within Cambridge or Boston, Massachusetts, or within any municipality within 50 miles of said Cambridge and Boston, nor will they solicit, attempt to obtain, accept or transact insurance business with anyone within said territory even though from an office location outside said territory.
(d) Forthwith following the closing hereunder, the Seller shall change its name to one which does not include any of the words "Oldco Insurance Agency" or "Gigantic" and shall, thereupon, cease to use either of said names in any manner and shall cease to operate as an insurance agent, broker or consultant except for the purposes of winding up its affairs and thereupon liquidating.
(e) The Seller agrees that, with respect to the employment agreements and covenants not to compete listed on EXHIBIT l(e), the Buyer shall have the right to enforce such agreements in the name of the Buyer or, to the extent it shall be required by law that such agreements be enforced by the Seller in the name of the Seller, the Seller agrees that such action may be brought in its name by the Buyer. The Seller and Stockholder covenant and agree to provide such cooperation as and when it shall be necessary or appropriate in the judgment of counsel for the Buyer to prosecute the enforcement of such agreements. The cost of such enforcement shall be borne solely by the Buyer regardless of whether such enforcement shall be in the name of the Buyer or the Seller.
(f) The Seller and Stockholder expressly understand and agree that the remedy at law for any breach by them or either of them of the provisions of this section 24 will be inadequate and that the Buyer shall be entitled to immediate injunctive relief including, but not limited to, an ex parte temporary restraining order if permitted by law. Nothing contained in this section shall be deemed to limit the Buyer's remedies at law or in equity for any such breach of said provisions hereof. Any covenant of the Seller or Stockholder contained herein which may not be specifically enforceable shall, nevertheless, if breached, give rise to a cause of action for monetary damages.
25. Public Announcements. The parties agree that, prior to the closing hereunder, except as otherwise required by law, any and all public announcements or other communications with anyone, whether public or private (including, but not limited to, any communications to those insurance companies which the Seller represents as agent or otherwise transacts business) concerning this Agreement and the transactions contemplated hereunder shall be subject to the approval of all parties, which approval shall not be unreasonably withheld, conditioned or delayed.
26. Preservation of Records. The Buyer agrees that it shall preserve all of the records from the Seller hereunder for a period of not less than 72 months from the Accounting Date. The Buyer shall permit the Seller, Stockholder or their appointed agents access to said records provided that said records shall reasonably be required with respect to the preparation of tax returns or audits thereof, collection of outstanding accounts receivable, defense of litigation or for any other reasonable business purpose not in conflict with the provisions of this Agreement.
27. Arbitration. Any controversy, dispute or question arising out of or with respect to this Agreement, or its interpretation, the performance or non-performance by either party or of any alleged breach thereof shall be determined by binding arbitration conducted in Boston, Massachusetts, in accordance with the then existing rules of the American Arbitration Association and judgment upon any award, which may include an award of damages, may be entered in any state or federal court having jurisdiction. Nothing contained in this paragraph or elsewhere in this Agreement shall in any way deprive either party of its right to obtain injunctive or other equitable belief.
28. Attorneys' Fees with Respect to Future Proceedings. In the event legal proceedings (including, but not limited to, arbitration proceedings) are commenced by the Buyer against the Seller and/or Stockholder or by the Seller and/or Stockholder against the Buyer, in connection with this Agreement or the transactions contemplated hereby, the party which does not prevail in such proceedings shall pay the reasonable attorneys' fees and other costs and expenses, including investigation costs, incurred by the prevailing party in such proceedings.
No Broker or Finder. All parties warrant and represent to each other that
no broker or finder was involved in this transaction and
no commission or finder's fee is due on account of this transaction or the consummation hereof. Each party shall indemnify, defend and hold the other parties harmless from and against any claim for brokerage commissions, finder's fees or other compensation made by any person who claims to have dealt with the indemnifying party in bringing about or effecting the transaction contemplated by this Agreement.
30. Notice. Any notices required hereunder shall be in writing and deemed to have been received (a) on the date delivered if delivered in hand, (b) the next following business day after being sent if sent by Federal Express or c) two business days after mailing, postage prepaid, by certified mail, return receipt requested, to the party entitled to notice at the addresses as follow, or such other address as may be directed by notice given hereafter. A business day shall be deemed any day on which the United States Postal Service shall have regular mail deliveries to the address to which the notice shall be directed:
If to the Buyer:
NEWCO Insurance Agency, Inc.
250 Summer Street Boston, MA 02210
Attention:
Henry J. Lee, President
With copy to: _______________________________________
If to the Seller or the Stockholder:
Mr. John Q. Harvard
Harvard Square
Cambridge, MA 02139
With copy to: ________________________________________
31. Miscellaneous.
(a) This Agreement may not be modified, revised, altered, added to, or extended in any manner, or superseded except by an instrument in writing signed by the parties hereto.
(b) This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument representing the agreement of the parties hereto.
(c) The failure by any party to enforce any provision of this Agreement shall not be in any way construed as a waiver of any such provision nor prevent that party thereafter from enforcing each and every provision of this Agreement.
(d) The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects so as to permit the enforcement of each provision hereof to the fullest extent permitted by law.
(e) This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns; provided, however, no assignment by a party of its rights and/or interests in and to this Agreement shall in any manner relieve the assigning party of or from any of its obligations, liabilities or undertakings herein contained. The Buyer acknowledges that it is the intention of the Seller to liquidate forthwith following the closing hereunder; as a result of which, the Seller shall assign to the Stockholder all of the assets of the Seller subject to its remaining liabilities. The Buyer hereby consents to such assignment of this Agreement by the Seller; provided, however, the Buyer shall not be bound by such assignment unless and until it shall have received notice that such assignment has occurred and notice of the terms thereof.
(f) This Agreement (including all Exhibits hereto) contains the entire agreement between the parties hereto and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter hereof. No oral understandings, oral statements, oral promises or oral inducements exist. No representations, warranties, covenants or conditions, express or implied, whether by statute or otherwise, other than as set forth herein, have been made by the parties hereto.
(g) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. Any legal proceedings (other than arbitration) shall be conducted solely in the courts of the Commonwealth of Massachusetts in Suffolk County.
(h) The section headings are for the convenience of the parties and in no way alter, modify, amend, limit or restrict the contractual obligations of the parties.
IN WITNESS WHEREOF, the said NEWCO INSURANCE AGENCY, INC., and the said OLDCO INSURANCE AGENCY, INC., have each caused this instrument to be executed in its respective name and on its respective behalf by a duly authorized officer, and the said JOHN Q. HARVARD has set his hand hereunto, each on the date set forth following the respective signatures, effective as of the date first above written; it being understood and agreed that no party signatory hereto shall be bound hereunder until this Agreement shall be executed by all parties hereto.
NEWCO INSURANCE AGENCY, INC.
OLDCO INSURANCE AGENCY, INC.
By: _________________________________________________
Title: ________________________________________________
Date of Signature: _____________________________, 19__
John Q. Harvard____________________________________
Date of Signature: _____________________________, 19__
GUARANTEE
FOR VALUE RECEIVED, the receipt and sufficiency whereof is hereby acknowledged, the undersigned "Guarantor" (which term shall include his heirs, executors and administrators), hereby unconditionally and irrevocably guarantees to the Seller and the Stockholder the full and prompt payment by the Buyer of all sums due to Seller and/or Stockholder pursuant to the within Purchase and Sale Agreement (the "Agreement") and all other obligations, conditions, covenants and undertakings of the Buyer contained therein. Guarantor does hereby waive any and all suretyship defenses and defenses in the nature thereof and, without limiting the generality of the foregoing, does hereby waive presentment, demand, notice and protest, and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of the Agreement, or any security therefor, consents that the Seller and/or Stockholder may, from time to time, extend the time for payment thereunder without notice to or further assent from the Guarantor (regardless of the number or length of time of such extensions) and agrees to remain bound on this Guarantee notwithstanding such extension or extensions or any other indulgence or indulgences granted to the Buyer, and notwithstanding that the Buyer may, by operation of law or otherwise, be relieved of its obligation hereunder.
It is expressly understood and agreed that the Seller and/or Stockholder may proceed directly against the Guarantor, without first taking any action against the Buyer or exhausting any of the Seller's or Stockholder's remedies against the Buyer.
This Guarantee shall be governed by and construed in accordance with the law of the Commonwealth of Massachusetts and is intended to take effect as an instrument under seal.
WITNESS: ___________________________________________
John Doe _____________________________________________
Date of Signature: ____________________________, 19__
SCHEDULE OF EXHIBITS
Exhibit Title
l(a) Schedule of Accounts
l(c) Schedule of Tangible
Personal Property
l(d) Schedule of Agency Agreements
l(e) Schedule of Employment
Agreements and/or Covenants
Not to Compete
2 Schedule of Target Accounts
3(b) Promissory Note
14 Disclosure Schedule
15(j) Employment Agreement
EXHIBIT l(a)
RECEIPT FOR SCHEDULE OF ACCOUNTS PURSUANT TO SECTION 1(A)
REFERENCE is hereby made to a certain Purchase and Sale Agreement dated
__________________, 19__, by and among OLDCO INSURANCE AGENCY, INC.
("Seller"), JOHN Q. HARVARD ("Stockholder") and NEWCO INSURANCE AGENCY, INC.
("Buyer") with respect to the sale of assets of Seller.
Receipt is hereby acknowledged by the Buyer of a separate Schedule of Accounts delivered by the Seller pursuant to section l(a) of the aforesaid Purchase and Sale Agreement.
Executed this _________ day of _________________, 19__.
NEWCO INSURANCE AGENCY, INC.
By:__________________________________________________
John Doe, President
EXHIBIT l(c)
SCHEDULE OF PERSONAL PROPERTY PURSUANT TO SECTION l(c)
EXHIBIT l(d)
SCHEDULE OF AGENCY AGREEMENTS PURSUANT TO SECTION l(d)
EXHIBIT 3(b)
PROMISSORY NOTE
$700,000.00
December 1, 19__
Boston, Massachusetts
FOR VALUE RECEIVED, the undersigned, NEWCO INSURANCE AGENCY, INC., a Massachusetts corporation, does hereby promise to pay to the order of OLDCO INSURANCE AGENCY, INC., a Massachusetts corporation, the principal sum of Seven Hundred Thousand Dollars ($700,000.00) together with interest thereon at the rate of nine and one-half (9.5%) percent per annum on the unpaid balance of principal in 60 equal monthly payments of principal and interest on a direct reduction amortization basis of $14,701.40 each. The first of said monthly payments shall be due and payable on February 1, 19__, and monthly thereafter on the first day of the next following 59 months.
All payments made hereunder shall first be applied to accrued interest due and the balance to principal.
The entire unpaid balance of this Promissory Note shall, at the option of the holder, become immediately due and payable, with interest thereafter at the rate of one and one-half (1.5%) percent per month, upon the occurrence of any of the following Events of Default:
a. Failure of Maker to make, when due, any payment as required hereby, which failure continues for a period of five (5) days after notice of non-payment given by the holder hereof; provided, however, in the event that any payment required hereby shall not be made on the due date thereof three times in any consecutive 12 month period, then, thereafter during such 12 month period, the holder no longer shall be required to give notice of nonpayment and shall be entitled, at its option, to accelerate and demand immediate payment of the entire unpaid balance of this Promissory Note as aforesaid.
b. (i) The sale by Maker or the execution by Maker of an agreement to sell all or substantially all of its insurance accounts,
(ii) sale or other transference of record or beneficial ownership, for consideration or otherwise, of more than 33 percent of the outstanding stock of Maker or execution of an agreement to sell or otherwise transfer such stock,
(iii) dissolution or termination of the existence of Maker or
(iv) the cessation, suspension or termination of the active conduct of its normal business activities by Maker, except as a result of a merger or consolidation of all or substantially all of the assets of Maker's business, sale of its stock or similar transaction in which the individual guarantor of this Promissory Note shall be the record and beneficial owner of at least 67 percent of the issued and outstanding voting stock of the successor in interest to Maker, which successor shall expressly assume all of the obligations of Maker hereunder and under the Purchase and Sale Agreement dated _______________________, 19__, between Maker and the Payee; whereunder, Maker has acquired substantially all of the assets of the Payee, hereinafter referred to as the "Purchase Agreement";
The making, by Maker, of any assignment for the benefit of creditors or the entering, by Maker, into any composition, trust mortgage or similar arrangement with its creditors;
Admission by Maker in writing of its inability to pay its debts as they mature;
e. Commencement by Maker of a proceeding under the federal bankruptcy laws, as now or hereafter constituted, or under any other applicable federal or state bankruptcy, insolvency or other laws relating to relief for debtors, or the readjustment, reorganization, composition or extension of debt or commencement against Maker of any such proceeding which is not discharged within 60 days;
f. Entry of a decree or order, not discharged within 60 days, appointing, or consent by Maker to the appointment of, a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of Maker, or for all or substantially all of the property of Maker or the winding-up or liquidation of any of Maker's affairs;
g. Any event, including death, which shall result in Henry J. Lee not being the record and beneficial owner of not less than 67 percent of the issued and outstanding voting stock of Maker;
h. The failure of John Q. Harvard to be employed by Maker pursuant to a certain Employment Agreement executed contemporaneously herewith, which failure shall be the result only of (1) the death of said John Q. Harvard, (2) his Total Permanent Disability as defined in said Employment Agreement or (3) the termination of his employment by maker without Good and Sufficient Cause as defined in said Employment Agreement;
i. The occurrence of any event described in sections 4(b) or 4(c) of the Purchase Agreement.
Maker agrees to pay all expenses, including reasonable attorneys' fees, which the holder may incur in collection of this Note either after acceleration or maturity, whether or not suit is commenced, including any such expenses incurred in connection with Maker's bankruptcy or reorganization.
The word "holder", as used herein, shall refer to the Payee and all assignees, endorsees or transferees of said Payee.
The liability of each of the undersigned hereunder shall be absolute and unconditional without regard to the liability of any other party. Each and every party to this instrument, either as maker, endorser, guarantor, surety or otherwise, hereby waives presentment, demand for payment, notice of dishonor, protest and any and all notices and demands in connection with the performance, default or enforcement of this Note, and consents to any and all extensions or postponements of the time of payment or other indulgence, renewals, waivers, substitutions, exchanges, releases of collateral granted or permitted by the holder.
This Note may be prepaid at any time without penalty.
This Note shall be governed by and construed in accordance with the law of the Commonwealth of Massachusetts and is intended to take effect as an instrument under seal.
NEWCO INSURANCE AGENCY, INC.
WITNESS________________________________________________
By: ______ John Doe, President _______________________________
GUARANTEE
FOR VALUE RECEIVED, the receipt and sufficiency whereof is hereby acknowledged, the undersigned "Guarantor" (which term shall include his heirs, executors and administrators), hereby unconditionally and irrevocably guarantees to the holder of the within promissory note (the "Note) the full and prompt payment of each installment hereunder. Guarantor does hereby waive any and all suretyship defenses and defenses in the nature thereof and, without limiting the generality of the foregoing, does hereby waive presentment, demand, notice and protest, and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of the Note, or any security therefor, consents that the holder may, from time to time, extend the time for payment thereunder without notice to or further assent from the Guarantor (regardless of the number or length of time of such extensions) and agrees to remain bound on this Guarantee notwithstanding such extension or extensions or any other indulgence or indulgences granted to Maker, and notwithstanding that Maker may, by operation of law or otherwise, be relieved of its obligation hereunder.
It is expressly understood and agreed that the holder may proceed directly against the Guarantor, without first taking any action against Maker or exhausting any of the holder's remedies against Maker.
This Guarantee shall be governed by and construed in accordance with the law of the Commonwealth of Massachusetts and is intended to take effect as an instrument under seal.
WITNESS________________________________________________
_______________John Doe___________________________________
EXHIBIT 14
DISCLOSURES OF THE SELLER AND STOCKHOLDER PURSUANT TO SECTION 14