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(a) | If to Buyer, to |
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| Brown & Brown, Inc. |
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| 220 S. Ridgewood Avenue |
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| Daytona Beach, Florida 32114 |
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| Telecopy No.: (386) 239-5729 |
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| Attn: Jim W. Henderson |
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| Regional Executive Vice President |
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| With a copy to |
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| Brown & Brown, Inc. | |||
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| 401 E. Jackson Street, Suite 1700 | |||
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| Tampa, Florida 33602 | |||
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| Telecopy No.: (813) 222-4464 | |||
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| Attn: Laurel L. Grammig, Esq. | |||
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| General Counsel | |||
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(b) | If to Sellers, the Shareholder or Martin, to |
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| 19191 South Vermont Avenue |
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| Suite 770 |
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| Torrance, CA 90502 |
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| Fax (310) 819-3311 |
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| Attention: Donald E. Martin |
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| With a copy to |
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| Latham & Watkins |
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| 135 Commonwealth Drive |
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| Menlo Park, CA 94025 |
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| Telecopy No.: (650) 463-2600 |
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| Attn: Patrick Pohlen, Esq. |
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Section 10.2 Use of Term "Knowledge". With respect to the term "Knowledge" as used herein, (a) Martin shall be deemed to have "Knowledge" of a particular fact or other matter if he is actually aware of such fact or other matter, or reasonably should be aware of such fact or other matter; (b) a Seller or Shareholder shall be deemed to have "Knowledge" of a particular fact or other matter if Martin, Masters or James Adams is actually aware of such fact or other matter, or reasonably should be aware of such fact or other matter; and (b) Buyer shall be deemed to have "Knowledge" of a particular fact or other matter if J. Hyatt Brown, Jim W. Henderson, Cory Walker or Rich Freebourn is actually aware of such fact or other matter, or reasonably should be aware of such fact or other matter. |
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Section 10.3 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. |
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Section 10.4 Entire Agreement. This Agreement (including the Schedules, Exhibits, and other documents and instruments delivered pursuant to this Agreement) constitutes the entire agreement and supersedes all prior agreements (including, without limitation, the Original Agreement) and understandings, both written and oral, among the parties with respect to the subject matter hereof. |
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Section 10.5 Assignment; No Third Party Rights. Subject to Section 6.7 hereof, neither this Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and permitted assigns. Each of the provisions of this Agreement is for the sole and exclusive benefit of the parties hereto. Nothing in this Agreement is to be construed to give any Person other than the parties to this Agreement any legal or equitable right under or with respect to this Agreement or any provision of this Agreement. |
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Section 10.6 Joint Efforts. This Agreement is the result of the joint efforts and negotiations of the parties hereto, with each party being represented, or having the opportunity to be represented, by legal counsel of its own choice, and no singular party is the author or drafter of the provisions hereof. Each of the parties assumes joint responsibility for the form and composition of this Agreement and each party agrees that this Agreement shall be interpreted as though each of the parties participated equally in the composition of this Agreement and each and every provision and part hereof. The parties agree that the rule of judicial interpretation to the effect that any ambiguity or uncertainty contained in an agreement is to be construed against the party that drafted the agreement shall not be applied in the event of any disagreement or dispute arising out of this Agreement. |
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Section 10.7 Headings. All paragraph headings herein are inserted for convenience of reference only and shall not modify or affect the construction or interpretation of any provision of this Agreement. |
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Section 10.8 Severability. In the event that any provision, covenant, section, subsection, paragraph, or any portion thereof, of this Agreement is held by any court of competent jurisdiction to be illegal, invalid or unenforceable, either in whole or in part, the legality, validity or enforceability of the remaining provisions, covenants, sections, subsections, paragraphs, or portions thereof shall not be affected thereby, and each such provision, covenant, section, subsection, paragraph, or any portion thereof shall remain valid and enforceable to the fullest extent permitted by law. |
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Section 10.9 Attorneys' Fees and Costs. The prevailing party in any Proceeding brought to enforce the terms of this Agreement shall be entitled to an award of reasonable attorneys' fees and costs incurred in investigating and pursuing such action, both at the trial and appellate levels. |
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Section 10.10 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with internal Florida law without regard to conflicts-of-laws principles that would require the application of any other law. |
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Section 10.11 Amendment; Waiver. This Agreement may not be amended, or any provision waived, except by an instrument in writing signed on behalf of each of the parties. |
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Section 10.11 Bulk Sales Law. The parties hereto agree to waive any rights they may have against each other as a result of the failure of any party to comply with the provisions of any applicable laws of any state relating to the bulk sale of assets which may be applicable to the transactions contemplated hereby. |
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* * * * * * * * * * |
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[Remainder of Page Intentionally Left Blank – Signature Pages Follow] |
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IN WITNESS WHEREOF, the parties have signed or caused this Amended and Restated Asset Purchase Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. |
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BUYER: | |
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BROWN & BROWN, INC. | |
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By: | /S/ THOMAS M. DONEGAN, JR. |
Name: | Thomas M. Donegan, Jr. |
Title: | Vice President |
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SELLERS: | |
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CAL-SURANCE ASSOCIATES, INC. | |
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By: | /S/ DONALD E. MARTIN |
Name: | Donald E. Martin |
Title: | Chairman |
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UNITED NETWORK OF INSURANCE | |
SERVICES, INC. | |
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By: | /S/ DONALD E. MARTIN |
Name: | Donald E. Martin |
Title: | Chairman |
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STERLING REINSURANCE | |
INTERMEDIARIES, INC. | |
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By: | /S/ DONALD E. MARTIN |
Name: | Donald E. Martin |
Title: | Chairman |
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LANCER CLAIMS SERVICES, INC. | |
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By: | /S/ DONALD E. MARTIN |
Name: | Donald E. Martin |
Title: | Chairman |
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CHARTERED FINANCIAL SERVICES | |
CORPORATION | |
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By: | /S/ DONALD E. MARTIN |
Name: | Donald E. Martin |
Title: | Chairman, President & Chief Executive |
| Officer |
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SHAREHOLDER: | |
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MARTIN LIVING TRUST U/D/T DATED | |
AUGUST 14, 1984, AS AMENDED | |
OCTOBER 22, 1986 | |
SHAREHOLDER: | |
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By: | /S/ DONALD E. MARTIN |
Name: | Donald E. Martin |
Title: | Trustee |
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By: | /S/ RENEE MARTIN |
Name: | Renee Martin |
Title: | Trustee |
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MARTIN: | |
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| /S/ DONALD E. MARTIN |
| Donald E. Martin, individually |
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| SCHEDULES AND EXHIBITS | |||
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Schedule 1.1(a): |
| Commercial Book of Business |
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Schedule 1.1(b): |
| Tangible Property |
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Schedule 1.1(c): |
| Seller Contracts |
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Schedule 1.1(f): |
| Risk Purchasing Groups |
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Schedule 1.1(g): |
| Insurance Policies |
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Schedule 1.2(i): |
| VISA Participants |
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Schedule 1.2(j): |
| Personal Effects |
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Schedule 1.3(a)(iv) |
| Employee Bonuses |
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Schedule 1.4(c): |
| Allocation Schedule |
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Schedule 3.1: |
| Good Standing Jurisdictions |
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Schedule 3.6(a): |
| Financial Statements |
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Schedule 3.6(c): |
| Undisclosed Liabilities |
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Schedule 3.7: |
| Certain Changes and Events |
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Schedule 3.8(a): |
| Encumbrances |
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Schedule 3.8(b): |
| Revenues by Carrier for Twelve Months Ended September 30, 2002 |
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Schedule 3.8(d): |
| Insurance Captive Entities |
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Schedule 3.9: |
| List of Claims and Litigation |
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Schedule 3.14: |
| Employment Agreements and Independent Contractor Agreements |
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Schedule 3.15: |
| Employee Benefit Plans |
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Schedule 3.16(c): |
| Owned Intellectual Property Assets |
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Schedule 6.16: |
| Third-Party Consents |
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Schedule 6.18: |
| Employees to be Offered Employment |
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Exhibit A: |
| Bill of Sale |
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Exhibit B: |
| Assignment and Assumption Agreement |
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Exhibit C: |
| Martin Employment Agreement |
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Exhibit D: |
| Masters Employment Agreement |
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