STOCK PURCHASE AGREEMENT
dated as of October 9. 2007
by and among
SECURITY NATIONAL LIFE INSURANCE COMPANY,
CAPITAL RESERVE LIFE INSURANCE COMPANY
And
THE SHAREHOLDERS THAT HAVE EXECUTED
AGREEMENT BY SHAREHOLDERS OF
CAPITAL RESERVE LIFE INSURANCE COMPANY
TO SELL SHARES IN STOCK PURCHASE TRANSACTION
IN THE FORM ATTACHED AS ANNEX I
TABLE OF CONTENTS
Page
ARTICLE I - PURCHASE AND SALES OF SHARES................................... 1
1.1 Sale and Purchase of the Shares ......................... 1
1.2 Purchase Consideration................................... 1
1.3 Delivery of Shares....................................... 4
ARTICLE II - CLOSING....................................................... 4
2.1 Closing.................................................. 4
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF CAPITAL RESERVE.............4
3.1 Organization, Good Standing and Power.................... 5
3.2 Capital Structure ....................................... 5
3.3 Authority ............................................... 5
3.4 Dividends, Stock Purchases, Etc. ........................ 6
3.5 Financial Statements .................................... 7
3.6 Annual Insurance Statements ............................. 7
3.7 Insurance Business ...................................... 8
3.8 Compliance with Law ..................................... 9
3.9 No Defaults.............................................. 9
3.10 Litigation .............................................. 9
3.11 No Material Adverse Change............................... 9
3.12 No Material Adverse Change in Capital and Surplus....... 11
3.13 Absence of Undisclosed Liabilities...................... 11
3.14 Information Supplied.....................................11
3.15 Certain Agreements ......................................11
3.16 Plans; Benefits; Employment Claims ......................12
3.17 Major Contracts .........................................13
3.18 Taxes ...................................................14
3.19 Interests of Officers and Directors .....................16
3.20 Intellectual Property ...................................16
3.21 Restrictions on Business Activities .....................17
3.22 Title to Properties; Absence of Liens and
Encumbrances; Conditions of Equipment .............17
3.23 Governmental Authorization and Licenses .................17
3.24 Environmental Matters................................... 18
3.25 Insurance ...............................................19
3.26 Labor Matters ...........................................19
3.27 Agents; Customers and Complaints ........................19
3.28 Questionable Payments ...................................19
TABLE OF CONTENTS
(continued)
Page
ARTICLE IV - COVENANTS OF SHAREHOLDERS................................... 20
4.1 Shareholders to Sell Shares in Transaction ..............20
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF
SECURITY NATIONAL ................................................20
5.1 Organization, Good Standing and Power ...................20
5.2 Authority ...............................................20
5.3 Board Authorization......................................21
ARTICLE VI - CONDUCT AND TRANSACTIONS PRIOR TO
CLOSING DATE; ADDITIONAL AGREEMENT...............................21
6.1 Conduct of Business of Capital Reserve...................21
ARTICLE VII - CONDITIONS PRECEDENT ........................................24
7.1 Conditions to Each Party's Obligation to
Effect this Transaction ........................24
7.2 Conditions to Obligations of Security National ..........25
7.3 Conditions to Obligations of Capital Reserve and
Shareholders............................................27
ARTICLE VIII - TERMINATION ................................................28
8.1 Termination .............................................28
ARTICLE IX - INDEMNIFICATION ..............................................29
9.1 Obligation of Shareholders to Indemnify .................29
9.2 Notice and Opportunity to Defend ........................29
ARTICLE X - GENERAL PROVISIONS.............................................30
10.1 Survival of Representations, Warranties,
Covenants and Agreements........................30
10.2 Amendment ...............................................31
10.3 Extension; Waiver .......................................31
10.4 Notices..................................................31
10.5 Interpretation ..........................................32
10.6 Counterparts ............................................33
10.7 Entire Agreement ........................................33
10.8 No Transfer .............................................33
10.9 Severability.............................................33
10.10 Other Remedies...........................................33
10.11 Further Assurances.......................................34
10.12 No Third Party Beneficiary Rights........................34
10.13 Mutual Drafting..........................................34
10.14 Governing Law............................................34
10.15 Jurisdiction and Venue...................................34
10.16 Expenses.................................................35
10.17 Brokers or Finders ......................................35
10.18 Public Announcements ....................................35
10.19 Confidentiality .........................................35
10.20 Attorney's Fees..........................................35
ANNEX I
EXHIBITS
Exhibit 1 Capital Reserve Disclosure Schedule
Exhibit 2 Security National Disclosure Schedule
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is dated effective as of
October 9, 2007, and entered into by and among SECURITY NATIONAL LIFE INSURANCE
COMPANY, a Utah corporation ("Security National"), CAPITAL RESERVE LIFE
INSURANCE COMPANY, a Missouri corporation ("Capital Reserve"), and the
shareholders of Capital Reserve that have executed the AGREEMENT BY SHAREHOLDERS
OF CAPITAL RESERVE LIFE INSURANCE COMPANY TO SELL SHARES IN STOCK PURCHASE
TRANSACTION in the form attached as Annex I (the "Shareholders").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, Security National, Capital Reserve, and the Shareholders
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Sale and Purchase of the Shares. At the Closing, as hereinafter
defined, upon and subject to the terms and conditions set forth in this
Agreement, the Shareholders shall sell, transfer, assign and deliver to Security
National, and Security National shall purchase from the Shareholders, 3,564
shares of common stock of Capital Reserve (the "Capital Reserve Common Stock"),
representing all of the issued and outstanding stock and securities of Capital
Reserve owned the Shareholders, free and clear of all liens, claims, options,
proxies, voting agreements, charges and encumbrances. Security National, Capital
Reserve, the Shareholders hereby acknowledge and agree that regulatory approval
from the Utah and Missouri insurance departments for the transaction described
in this Section 1.1 must be obtained prior to Closing, as defined in Section 2.1
below.
1.2 Purchase Consideration. Subject to the terms and conditions of this
Agreement, in reliance upon Capital Reserve's representations, warranties,
agreements and covenants contained herein, and in consideration of the sale,
transfer, assignment and delivery of the Capital Reserve Common Stock as herein
provided, Security National shall provide the following purchase consideration
(the "Purchase Consideration") to the Shareholders:
(a) Cash in U.S. dollars by certified funds or wire transfer payable
to the Shareholders on a pro rata basis to the number of shares of Capital
Reserve Common Stock held by the Shareholders in an amount equal to (i) the
Capital and Surplus of Capital Reserve as of September 30, 2007 (as set
forth on page 3, line 38, column 1 of the September 30, 2007 Statutory
Quarterly Statement) plus (ii) the Interest Maintenance Reserve (as set
forth on page 3, line 9.4, column 1 of the September 30, 2007 Statutory
Quarterly Statement), plus (iii) the Asset Valuation Reserve (as set forth
on page 3, line 24.1, column 1 of the September 30, 2007 Statutory
Quarterly Report), plus (iv) $1,037,967, less the amount of the adjustments
in Sections 1.2(b), (c), (d), and (e) below;
(b) The Shareholders represent and acknowledge that on June 8, 2007,
Darlene Russell ("Russell"), a former employee of Capital Reserve, filed an
action against Capital Reserve in the Circuit Court of Cole County,
Missouri (Case No. 07AC-CC00513) (the "Russell Litigation") for unpaid
bonuses allegedly due her. The complaint claims payment for unpaid bonuses
is due in the amount of $1,486,045, plus interest at the statutory rate of
9% per annum through June 8, 2007 of $265,601, plus interest on the unpaid
principal amount of 9% per annum from June 8, 2007 until the judgment is
paid in full, and attorney's fees and other costs incurred in the
litigation. If the Russell Litigation has not been completely resolved
prior to Closing by the court rendering a final judgment and the applicable
appeal time having expired or the court entering an order dismissing the
complaint with prejudice pursuant to a settlement, the Shareholders agree
at Closing to deposit $1,800,000 of the Purchase Consideration into an
escrow account (the "Escrow Account") with an escrow agent mutually
acceptable to Security National and the Shareholders. The funds shall
remain in the Escrow Account until the Russell Litigation has been
completely resolved by the court rendering a final judgment and the
applicable appeal time having expired or the court entering an order
dismissing the complaint with prejudice. If Capital Reserve or any of its
officers, directors, employees or agents is determined to be liable in the
litigation or if Capital Reserve settles the Russell Litigation, the escrow
agent shall pay any amounts owing to Russell as a result of such judgment
or settlement, including but not limited to interest, penalties, attorney's
fees, and related expenses from the funds in the Escrow Account. In
addition, the escrow agent shall pay the cost of defending Capital Reserve
in the Russell Litigation, including any attorney's fees and related
expenses, from the funds in the Escrow Account. The escrow agent shall pay
any remaining amounts from the $1,800,000 deposit in the Escrow Account to
the Shareholders on a pro rata basis to the number of shares of Capital
Reserve Common Stock held by the Shareholders, after (i) the payment of any
judgment or settlement in the Russell Litigation; (ii) the payment of the
costs in defending Capital Reserve in the Russell Litigation, including
attorney's fees and related expenses; and (iii) the payment of the amount
in which the Adjusted Capital and Surplus of Capital Reserve, as defined in
Section 1.2(c) below, on September 30, 2007 exceeds the Adjusted Capital
and Surplus of Capital Reserve on the Closing Date as set forth in Section
1.2(c) below. The Shareholders additionally agree to deliver a signed
indemnification agreement to Capital Reserve and Security National at
Closing, in which the Shareholders agree to indemnify Capital Reserve and
Security National (x) for any payments made by Capital Reserve following
the Closing relating to a judgment or settlement in the Russell Litigation,
(y) for any attorney's fees and related expenses incurred by Capital
Reserve in defending itself in the Russell Litigation, and (z) for the
amount in which the Adjusted Capital and Surplus of Capital Reserve on
September 30, 2007 exceeds the Adjusted Capital and Surplus on the Closing
Date. The Shareholders shall be solely responsible for the Russell
Litigation following the Closing, including all decisions related to
defending Capital Reserve in the litigation;
(c) The Purchase Consideration shall be adjusted by the difference
between the amount of the Capital and Surplus of Capital Reserve plus the
Interest Maintenance Reserve and the Asset Valuation Reserve of Capital
Reserve (the "Adjusted Capital and Surplus") as of September 30, 2007 and
the amount of Adjusted Capital and Surplus of Capital Reserve on the
Closing Date. If the amount of the Adjusted Capital and Surplus on the
Closing Date is less than the amount of Adjusted Capital and Surplus on
September 30, 2007, such difference shall be paid to Security National from
the funds in the Escrow Account as defined in Section 1.2(b) above within
seven (7) days from the date such determination is made. If the amount of
Adjusted Capital and Surplus as of September 30, 2007 is less than the
amount of Adjusted Capital and Surplus on the Closing Date, Security
National agrees to pay such difference to the Shareholders on a pro rata
basis to the number of shares of Capital Reserve Common Stock held by the
Shareholders within seven (7) days from the date such difference is
determined. If the Russell Litigation is completely resolved prior to
Closing, as defined in Section 1.2(b) above, the Shareholders agree at
Closing to deposit a certain amount of the Purchase Consideration into an
escrow account (the "Escrow Account") with an escrow agent mutually
acceptable to Security National and the Shareholders, such amount equal to
$200,000 plus the settlement amount paid to Russell to settle the
litigation (the "Deposit Amount"). The Deposit Amount shall be used to pay
the amount, if any, in which the Adjusted Capital and Surplus of Capital
Reserve as of September 30, 2007 exceeds the Adjusted Capital and Surplus
on the Closing Date. The escrow agent shall pay any remaining amount from
the Deposit Amount to the Shareholders on a pro rata basis following the
payment of the amount, if any, in which the Adjusted Capital and Surplus as
of September 30, 2007 exceeds the Adjusted Capital and Surplus on the
Closing Date;
(d) An amount equal to $316,649 of the Purchase Consideration shall be
paid to the Shareholders in the form of real estate and improvements
thereon located at 812 and 820 Madison Street, Jefferson City, Missouri
(the "Real Estate"), which is listed as an asset on the financial
statements of Capital Reserve. Title to the Real Estate shall be
transferred to the Shareholders at Closing and the Purchase Consideration
shall be reduced by $316,649, the book value of the Real Estate as
reflected on the financial statements of Capital Reserve;
(e) The Shareholders represent and acknowledge that they are not
entitled to receive any funds in the Asset Adequacy Reserve (as set forth
on Exhibit 5, page 12 line 0700005, column 1 of the December 31, 2006
Statutory Annual Statement) under the terms of this Agreement or as part of
the transaction. The Shareholders represent and warrant that there are
approximately $700,000 in the Asset Adequacy Reserve and such funds shall
not be included as part of the Purchase Consideration. If any funds in the
Asset Adequacy Reserve are released or distributed prior to Closing, the
amount of such funds released or distributed shall be deducted from the
amount of the Purchase Consideration to be provided to the Shareholders at
Closing. Security National shall have received a certificate at Closing
signed by the Chief Executive Officer and Chief Financial Officer of
Capital Reserve certifying as to the amount of funds in the Asset Adequacy
Reserve as of the Closing Date; and
(f) The Shareholders represent and acknowledge that on October 31,
2005, Capital Reserve filed an action against Joseph E. Warden, a former
President and Chief Executive Officer of Capital Reserve, and his wife
Linda Warden in the Circuit Court of Cole County, Missouri (Case No.
05AC-CC01025) (the "Warden Litigation"). The complaint claims damages in
excess of $25,000 for breach of fiduciary duty by Joseph Warden and
misappropriation of funds by Joseph Warden and Linda Warden. On July 9,
2007, judgment was entered against Joseph and Linda Warden in the amount of
$551,341.62. At Closing, Capital Reserve agrees to transfer and assign to
the Shareholders any and all of the interest in and rights to the Warden
Litigation, including the right to receive the proceeds from the judgment,
together with any payments of interest, attorney's fees, and related
expenses of the litigation, said proceeds to be paid to the Shareholders on
a pro rata basis to the number of shares of Capital Reserve Common Stock
held by the Stockholders. The Shareholders further agree to be responsible
for the payment of any costs associated with legal representation of
Capital Reserve in the Warden Litigation subsequent to the Closing,
including but limited to any attorney's fees and related expenses. The
Shareholders shall be solely responsible for the Warden Litigation
following the Closing, including all decisions related to collection of the
judgment against Joseph and Linda Warden in the litigation. Along with the
transfer of rights to pursue and receive the proceeds from the judgment
rendered in the Warden Litigation, Security National also transfers and
assigns to the Shareholders all rights and causes of action related to any
bonds that were in effect at the time of the wrongdoing by Joseph and Linda
Warden as alleged in the complaint. The shareholders shall have the right
to pursue the bonding companies to recoup the losses incurred as a result
of any defalcation and fraud in the Warden Litigation.
1.3 Delivery of Shares. At the Closing Date, the Shareholders shall
deliver to Security National certificates with stock power executed in
blank representing the outstanding shares of Capital Reserve Common Stock
required by Section 1.2 hereof.
ARTICLE II
THE CLOSING
2.1 Closing. The closing of the transaction (the "Closing") will take
place at the offices of Capital Reserve Life Insurance Company, 812 Madison
Street, Jefferson City, Missouri, unless a different date or place is
agreed to in writing by the parties hereto. Each party hereto shall use its
best efforts to cause the Closing to occur on or before November 30, 2007,
or within seven (7) days from the date the required regulatory approvals
are obtained as set forth in Section 1.1 above, unless this date is
extended as provided herein (the "Closing Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CAPITAL RESERVE
Except as disclosed in a document to be prepared by Capital Reserve
and delivered to Security National prior to the Closing Date (the "Capital
Reserve Disclosure Schedule") referring specifically to the applicable
representation and warranty in this Agreement that identifies the basis for
an exception to a representation and warranty in this Agreement and that is
delivered by Capital Reserve to Security National and approved by Security
National by execution of this Agreement, Capital Reserve represents and
warrants to Security National as set forth below, and such representations
and warranties shall be true and correct as of the date hereof and at all
times thereafter including, without limitation, the Closing Date, as if
made at all such times. As used in this Agreement (i) "Business Condition"
with respect to any corporate entity or group of corporate
entities shall mean the business and financial condition and prospects of
such entity or entities taken as a whole and (ii) "material adverse effect"
on the Business Condition shall be deemed to include, without limitation,
(x) any inaccuracy in the capitalization representation set forth in
Section 3.2 below and (y) any material liability not reflected on the
Capital Reserve Financial Statements (as defined in Section 3.5 below) or
Annual Insurance Statements (defined in Section 3.6 below).
3.1 Organization, Good Standing and Power. Capital Reserve is a
corporation, duly organized, validly existing and in good standing under
the laws of its state of incorporation and has all requisite power and
authority to own, operate and lease its properties and to carry on its
businesses as now being conducted. Schedule 3.1 of the Capital Reserve
Disclosure Schedule contains a true and correct listing of all states in
which Capital Reserve is registered, licensed and authorized to engage in
the insurance business. Capital Reserve is not aware of any threatened or
pending action or inaction that could result in the loss of or an adverse
change in any such registration or license. Capital Reserve is in good
standing under all such registrations and licenses. Capital Reserve is duly
qualified as foreign corporations and is in good standing in each
jurisdiction in which the failure to so qualify would have a material
adverse effect on its individual Business Condition. The Capital Reserve
Disclosure Schedule also sets forth a true and complete list of the states
where Capital Reserve is qualified as a foreign corporation. Capital
Reserve has no subsidiaries. Capital Reserve has no other direct or
indirect equity interest in or loans to any partnership, corporation, joint
venture, business association or other entity. Capital Reserve has
delivered to Security National complete and correct copies of its Articles
of Incorporation and Bylaws, in each case as amended to the date hereof,
and has delivered or made available minutes of all of Capital Reserve's
directors' and stockholders' meetings, and stock certificate books
correctly setting forth the record ownership of all outstanding shares of
Capital Reserve Common Stock.
3.2 Capital Structure.
(a) The authorized capital structure of Capital Reserve consists
of 14,000 shares of Common Stock. There are 3,564 shares of Common
Stock issued and outstanding, all of which are owned by the
Shareholders. Except as disclosed on Schedule 3.2 of the Capital
Reserve Disclosure Schedule, there are no other debt, equity or hybrid
debt or equity interests or securities of Capital Reserve issued and
outstanding.
(b) All outstanding shares of Capital Reserve Common Stock and
other Capital Reserve securities, if any, are validly issued, fully
paid and non-assessable and, except as disclosed on the Capital
Reserve Disclosure Schedule, are not subject to any liens, claims,
encumbrances or charges of any kind or nature or any preemptive rights
created by statute, Capital Reserve's Articles of Incorporation or
Bylaws or any agreement to which Capital Reserve is a party or by
which Capital Reserve may be bound. There are no options, warrants,
calls, conversion rights, commitments or agreements of any character
to which Capital Reserve is a party or by which Capital Reserve may be
bound that do or may obligate Capital Reserve to issue securities of
any kind or nature or to grant, extend or enter into any such option,
warrant, call, conversion right, commitment or agreement or which
relate to the voting of the Capital Reserve Common Stock or other
Capital Reserve securities, if any.
3.3 Authority.
---------
(a) Capital Reserve has all requisite corporate power and
authority to enter into this Agreement and to perform its obligations
hereunder and thereunder, and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement, the performance by Capital Reserve of its obligations
hereunder and thereunder and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized
by all necessary corporate action on the part of Capital Reserve,
including approval by its Boards of Directors and the shareholders.
This Agreement shall constitute legal, valid and binding obligations
of Capital Reserve enforceable against Capital Reserve in accordance
with their respective terms, except as enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement
of creditors' rights generally and except that the availability of
equitable remedies is subject to the discretion of the court before
which any proceeding therefore may be brought.
(b) To the best knowledge of Capital Reserve, the execution and
delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby and thereby, will not, conflict with
or result in any violation of any material statute, law, rule,
regulation, judgment, order, decree or ordinance applicable to Capital
Reserve or its properties or assets, nor will it conflict with or
result in any breach or default (with or without the giving of notice
or the lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any material obligation
or to the loss of any material benefit under, or result in the
creation of a material lien, charge or encumbrance on any of the
properties or assets of Capital Reserve pursuant to (i) any provision
of the Articles of Incorporation or Bylaws of Capital Reserve or (ii)
any material agreement, contract, note, mortgage, indenture, lease
instrument, permit, concession, franchise, registration or license to
which Capital Reserve is a party or by which Capital Reserve or any of
its properties or assets may be bound or affected.
(c) To the best knowledge of Capital Reserve, no consent,
approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency, commission, regulatory
authority or other governmental authority or instrumentality, whether
domestic or foreign (collectively, a "Governmental Entity"), is
required by or with respect to Capital Reserve in connection with the
execution and delivery of this Agreement and by Capital Reserve or the
consummation by Capital Reserve of the transactions contemplated
hereby or thereby, except for (i) filing required documents with the
relevant authorities of states in which Capital Reserve is qualified
to do business, (ii) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
insurance laws as identified in the Capital Reserve Disclosure
Schedule and (iii) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under the
laws of any foreign country, which, if not obtained or made, would not
have a material adverse effect on the Business Condition of Capital
Reserve. All approvals of Capital Reserve's Board of Directors and
Shareholders as required by applicable law have been obtained and are
in force and effect and no dissenters' rights have been exercised
under applicable law.
3.4 Dividends, Stock Purchases, Etc. Since December 31, 2006, Capital
Reserve has not (i) declared or paid any dividends (either in cash, property or
its stock of any class) upon, or made or become committed to make any other
distribution with respect to, or purchased, redeemed or otherwise beneficially
acquired any of its outstanding capital stock of any class, or become committed
so to do; (ii) split up, combined or reclassified any of its outstanding capital
stock of any class, or become committed so to do; or (iii) issued or become
committed to issue any additional capital stock of any class (whether or not
from treasury stock, heretofore authorized but unissued stock, or newly
authorized stock) or any options, rights or warrants to acquire, or securities
convertible into or exchangeable for, or which otherwise confer upon the holder
or holders thereof any right to acquire, any shares of capital stock of any
class or any other security or debt of Capital Reserve.
3.5 Financial Statements. Capital Reserve has furnished or made available
to Security National or will furnish or make available to Security National
within ten days from the date of this Agreement Capital Reserve's audited
financial statements for the fiscal years ended December 31, 2004, 2005, and
2006, including balance sheets and the related audited statements of income,
cash flow and stockholders' equity, and the related management letters
(collectively, the "Audited Financial Statements"). Additionally, Capital
Reserve has furnished or made available to Security National or will furnish or
make available to Security National within ten days from the date of this
Agreement Capital Reserve's unaudited financial statements as of and for the
quarters ended March 31, 2007, June 30, 2007, and September 30, 2007, including
unaudited balance sheets of Capital Reserve as at March 31, 2007, June 30, 2007,
and September 30, 2007, and the related unaudited statements of income, cash
flow and stockholders' equity (collectively, the "Unaudited Financial
Statements"). The Audited Financial Statements and the Unaudited Financial
Statements provided previously to Security National are listed in Schedule 3.5
of the Capital Reserve Disclosure Schedule. The Audited Financial Statements and
the Unaudited Financial Statements, are, collectively, referred to as the
"Capital Reserve Financial Statements." The Capital Reserve Financial Statements
have been or will be prepared in accordance with generally accepted accounting
principles (GAAP) consistently applied and fairly present the financial position
of Capital Reserve as at the dates thereof and the results of its operations and
cash flows for the periods then ended. In preparing the Unaudited Financial
Statements, there have been no changes in Capital Reserve's GAAP or statutory
accounting policies or procedures used in preparing the December 31, 2006
audited financial statements.
3.6 Annual Insurance Statements.
(a) Capital Reserve has provided Security National with (i) all
annual statements, certificates and applications to the Missouri or
any other insurance commissioner or other Governmental Entity, which
Capital Reserve has filed with or submitted with respect to years
ending on or after December 31, 2004, and such documentation provided
previously is listed in Schedule 3.6 of the Capital Reserve Disclosure
Schedule, and (ii) all reports of examination issued by such insurance
commissioners, regulatory authorities or other Governmental Entity
regarding Capital Reserve on or after December 31, 2004, and such
documentation provided previously is listed also in Schedule 3.6.
(b) Such filings or submissions in 3.6 (a) were in substantial
compliance with applicable law when filed and, as of their respective
dates, did not contain any materially false statements of fact or omit
to state any material fact necessary to make the statements set forth
therein not misleading in light of the circumstances under which such
statements were made; no material deficiencies have been asserted by
any insurance commissioner, insurance department or other Governmental
Entity with respect to such statements; Capital Reserve has provided
Security National with copies of all material written responses with
respect to comments from any Governmental Entity concerning such
filings, submissions or reports of examination since December 31, 2003
and such written responses are described in Schedule 3.6 of the
Capital Reserve Disclosure Schedule, and prior to the date of this
Agreement, no fines or penalties have been imposed on Capital Reserve
by any Governmental Entity; and no deposits (other than in the
ordinary course of business) have been made by Capital Reserve with
any Governmental Entity.
(c) The statutory financial statements for Capital Reserve as of
and for the years ended December 31, 2004, 2005 and 2006 (i) fairly
present the statutory financial condition of Capital Reserve at such
dates and (ii) have been prepared in accordance with the required or
permitted statutory insurance accounting requirements or practices
under the insurance laws of Missouri, except as expressly set forth or
disclosed in the notes, exhibits or schedules thereto. The amounts
shown in such statements of account on aggregate reserves for life or
annuity policies and contracts, aggregate reserves for accident and
health policies, net deferred and uncollected premiums and all policy
and contract claims liability as of the end of each such year, are
computed in accordance with accepted actuarial and industry practices,
are fairly stated in accordance with those called for in applicable
insurance policy provisions, meet the requirements of the insurance
laws of Missouri, make a sufficient provision for all unmatured
obligations of Capital Reserve provided for under the terms of its
policies and are consistent with the assumptions previously employed.
Adequate provision has been made for all actuarial reserves and
related statement items which ought to be established.
3.7 Insurance Business.
(a) Security National has been provided true and complete copies
of all contracts, arrangements, treaties, understandings and
agreements of (or related to) Capital Reserve with any party with
respect to reinsurance currently in force and such documents and
information are listed in Schedule 3.7 of the Capital Reserve
Disclosure Schedule attached hereto. All policies assumed by Capital
Reserve were assumed under agreements submitted to and approved by all
relevant regulatory authorities and are valid, in force, and not
subject to recapture (except at Capital Reserve's option), and are
fairly reflected on the Capital Reserve Financial Statements. No party
thereto is in material default with respect to any provision thereof
and no such agreement contains any provision providing that the other
party thereto may terminate same by reason of the transactions
contemplated by this Agreement or any other provisions which would be
altered or otherwise become applicable by reason of such transactions.
(b) All policies of insurance issued or assumed by Capital
Reserve as now in force are, to the extent required under applicable
law, on forms submitted to and approved by the applicable
jurisdiction's insurance commissioner. No policy holder or related
group of policy holders which, singularly or in the aggregate,
accounted for 5% of the gross revenues of Capital Reserve considered
as a whole for the year ended December 31, 2006 has, after December
31, 2006, terminated or, to the best knowledge of the Capital Reserve,
threatened to terminate its relationship with Capital Reserve. The
contracts between Capital Reserve and its agents, managers or brokers
are valid, binding and in full force and effect in accordance with
their terms. Capital Reserve is not in material default with respect
thereto and no such contract contains any provision providing that the
other party thereto may terminate the same by reason of the
transactions contemplated by this Agreement or any other provision
which would be altered or otherwise become applicable by reason of
such transactions.
3.8 Compliance with Law. To the best knowledge of Capital Reserve, Capital
Reserve is in compliance with and has conducted its business so as to comply
with all laws, rules, regulations, judgments, decrees or orders of any
Governmental Entity applicable to their operations or with respect to which
compliance is a condition of engaging in the business thereof, except to the
extent that failure to comply could, individually or in the aggregate, not have
had and is not reasonably expected to have, a material adverse effect on the
Business Condition of Capital Reserve. There are no material judgments, orders,
injunctions, decrees, stipulations or awards (whether rendered by a court or
administrative agency or by arbitration) against Capital Reserve or against any
of its properties or businesses. Schedule 3.8 of the Capital Reserve Disclosure
Schedule contains a summary of all material violations of, or conflicts with,
any applicable statute, law, rule, regulation, ruling, order, judgment or
decree, listed by each such Governmental Entity, including any of the foregoing
relating to any environmental or health laws.
3.9 No Defaults. To the best knowledge of Capital Reserve, Capital Reserve
is not, nor has it received notice that it is or would be with the passage of
time or the giving of notice, or both, (a) in violation of any provision of its
Articles of Incorporation or Bylaws or (b) in default or violation of any term,
condition or provision of (i) any judgment, decree, order, injunction or
stipulation applicable to Capital Reserve or (ii) any agreement, note, mortgage,
indenture, contract, lease, instrument, permit, registration, concession,
franchise or license to which Capital Reserve is a party or by which Capital
Reserve or any of its properties or assets may be bound, which violation or
default could, individually or in the aggregate, have a material adverse effect
on the Business Condition of Capital Reserve.
3.10 Litigation. There is no action, suit, proceeding, claim, arbitration
or investigation pending or, to the best knowledge of Capital Reserve,
threatened, against Capital Reserve that, individually or in the aggregate,
could be reasonably expected to have a material adverse effect on the Business
Condition of Capital Reserve, or which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay any of the transactions contemplated
hereby. Schedule 3.10 of the Capital Reserve Disclosure Schedule sets forth with
respect to each pending action, suit, proceeding, claim, arbitration or
investigation to which Capital Reserve is a party, the forum, the parties
thereto, a brief description of the subject matter thereof and the amount of
damages claimed. Capital Reserve is not aware of any reasonable basis for any
other such action, suit, proceeding, claim, arbitration or investigation.
Capital Reserve has delivered or made available to Security National correct and
complete copies of all correspondence prepared by its counsel for Capital
Reserve's independent public accountants in connection with any audits or
reviews completed by Capital Reserve's independent public accountants.
3.11 No Material Adverse Change. Since June 30, 2007, Capital Reserve has
conducted its business in the ordinary course and there has not occurred:
(a) Any material adverse change in the Business Condition of Capital
Reserve;
(b) Any amendments or changes in the Articles of Incorporation or
Bylaws of Capital Reserve;
(c) Any damage, destruction or loss, whether covered by insurance or
not, materially and adversely affecting any of the properties or businesses
of Capital Reserve;
(d) Any issuance, redemption, repurchase or other acquisition of the
shares of capital stock of Capital Reserve or any declaration, setting
aside payment of any dividend or other distribution (whether in cash, stock
or property) with respect to the capital stock of Capital Reserve;
(e) Any increase in or modification of the compensation or benefits
payable or to become payable by Capital Reserve to any of its directors,
officers or employees, except in the ordinary course of business consistent
with past practice;
(f) Any material increase in or modification of any bonus, pension,
insurance or other employee benefit plan, payment or arrangement,
including, but not limited to, the granting of stock options, restricted
stock awards or stock appreciation rights made to, for or with any of its
employees, except in the ordinary course of business consistent with past
practice;
(g) Any sale of the property or assets of Capital Reserve individually
in excess of $1,000 or in the aggregate in excess of $2,500;
(h) Any alteration in any term of any outstanding security of Capital
Reserve;
(i) Any (a) incurrence, assumption or guarantee by Capital Reserve of
any debt for borrowed money; (b) issuance or sale of any securities
convertible into or exchangeable for debt securities of Capital Reserve;
(c) issuance or sale of options or other rights to acquire from Capital
Reserve, directly or indirectly, debt securities or any securities
convertible into or exchangeable for any such debt securities; or (d) any
material premium refunds;
(j) Any creation or assumption by Capital Reserve of any mortgage,
pledge, security interest, lien or other encumbrance on any of its assets
or properties;
(k) Any making of any loan, advance or capital contribution to, or
investment in, any person other than (a) travel loans or advances made in
the ordinary course of business of Capital Reserve and (b) other loans and
advances in an aggregate amount that does not exceed $1,000 outstanding at
any time;
(l) Any entry into or any amendment or relinquishment of or any
termination or renewal by Capital Reserve of any contract, lease
transaction, commitment or other right or obligation, except in the
ordinary course of business consistent with past practice;
(m) Any transfer or grant of a right under the Capital Reserve
Intellectual Property Rights (as defined in Section 3.20 below) other than
those transferred or granted in the ordinary course of business consistent
with past practice;
(n) Any labor dispute, other than routine individual grievances, or
any activity or proceeding by a labor union or representative thereof to
organize any employees of Capital Reserve;
(o) Any violation of or conflict with any applicable laws, statutes,
orders, rules or regulations promulgated, or judgment entered by any
Governmental Entity, that, individually or in the aggregate, materially and
adversely affects (or, insofar as Capital Reserve knows, might reasonably
be expected to materially and adversely affect) the Business Condition of
Capital Reserve;
(p) Any agreement or arrangement made by Capital Reserve to take any
action that, if taken prior to the date hereof, would have made any
representation or warranty set forth in this Section 3 untrue or incorrect
as of the date when made; or
(q) Any payment of amounts owing under Capital Reserve issued
insurance policies materially at variance with the Company's policy
provisions and policy payment history.
(r) Any decrease in insurance premiums greater than 5%;
3.12 No Material Adverse Change in Adjusted Capital and Surplus. Since
September 30, 2007, there has not been a reduction in the Adjusted Capital and
Surplus of Capital Reserve in excess of $25,000.
3.13 Absence of Undisclosed Liabilities. Except as disclosed in Schedule
3.13 of the Capital Reserve Disclosure Schedule or as reflected in the Capital
Reserve Financial Statements and except for liabilities and obligations arising
after September 30, 2007, in the ordinary course of business consistent with
past practices that could not reasonably be expected to have a material adverse
effect on the Business Condition of Capital Reserve, Capital Reserve has no
liabilities or obligations (whether absolute, accrued or contingent, and whether
or not determined or determinable) of a character that, under GAAP, should be
accrued, shown or disclosed on an audited balance sheet of Capital Reserve
(including the footnotes thereto) or should be described on an Annual Insurance
Statement filed with any state insurance commissioner having jurisdiction over
Capital Reserve or its business.
3.14 Information Supplied. None of the information supplied or to be
supplied by Capital Reserve pursuant to this Agreement and no representation or
warranty made herein or in any exhibit hereto or in any financial statement or
schedule attached hereto contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
3.15 Certain Agreements. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby or
thereby will (a) result in any payment (including, without limitation,
severance, unemployment compensation, golden parachute, bonus or otherwise)
becoming due to any director or employee of Capital Reserve under any Plan (as
defined in Section 3.16 below) or otherwise, (b) materially increase any
benefits otherwise payable under any Plan or (c) result in the acceleration of
the time of payment or vesting of any such benefit.
3.16 Plans; Benefits; Employment Claims.
(a) All employee benefit plans, programs, policies, commitments or
other arrangements (whether or not set forth in a written document)
covering any active, former or retired employee or consultant of Capital
Reserve are listed in Schedule 3.16 of the Capital Reserve Disclosure
Schedule (individually, a "Plan" and, collectively, the "Plans"). To the
extent applicable, the Plans comply with the requirements of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and the Code,
and any Plan intended to be qualified under Section 401(a) of the Code has
either obtained a favorable determination letter as to its qualified status
from the Internal Revenue Service (the "IRS") or still has a remaining
period of time under applicable Treasury Regulations or IRS pronouncements
in which to apply for such a determination letter and to make any
amendments necessary to obtain a favorable determination. To the extent any
Plan with an existing determination letter from the IRS must be amended to
comply with the applicable requirement of the Tax Reform Act of 1986, as
amended, and subsequent legislation, the time period for effecting such
amendments will not expire prior to this transaction. Capital Reserve has
furnished or made available to Capital Reserve copies of the most recent
IRS letters and IRS Form 5500 with respect to any such Plan. No Plan is
covered by Title IV of ERISA or Section 412 of the Code. Neither Capital
Reserve nor any officer or director of Capital Reserve has incurred any
liability or penalty under Section 4975 through Section 4980 of the Code or
Title I of ERISA. Each Plan has been maintained and administered in all
material respects in compliance with its terms and with the requirements
prescribed by and all applicable statutes, laws, rules, orders, rules and
regulations, including, but not limited to, ERISA and the Code, that are
applicable to such Plans. No suit, action or other litigation (excluding
claims for benefits incurred in the ordinary course of Plan activities) has
been brought, or, to the best knowledge of Capital Reserve, is threatened,
against or with respect to any such Plan. All contributions, reserves and
premium payments required to be made or accrued as of the date hereof to
the Plans have been made or accrued.
(b) Except as described in Schedule 3.16 attached hereto, no present
or former employee of Capital Reserve has any claim against Capital Reserve
(whether under federal or state law, under any employment agreement, or
otherwise) on account of or for (i) overtime pay, other than overtime pay
for work done in current payroll period; (ii) wages or salary for any
period other than the current payroll period; (iii) vacation time off or
pay in lieu of vacation time off, other than (x) accumulated vacation pay
as show in the schedule referred to above, and (y) vacation time off (or
pay in lieu thereof) earned in or in respect of the current fiscal year; or
(iv) any material violation of any statute, ordinance or regulation
relating to minimum wages or maximum hours of work.
(c) No person or party (including, but not limited to governmental
agencies of any kind) has filed, or to the knowledge of Capital Reserve has
threatened to file, any claim against Capital Reserve under or rising out
of any statute, ordinance or regulation relating to discrimination in
employment or employment practices. No person has any material claim under
which Capital Reserve has any material liability under any health,
sickness, disability, medical, surgical, hospital, or surgical, hospital,
or similar benefit plan or arrangement, or by virtue of his or her
employment maintained by Capital Reserve, or to or by which Capital Reserve
is a party or is bound, or under any workmen's compensation or similar law,
which is not fully covered, subject only to standard deductibles, by
insurance maintained with reputable, financially responsible insurers. No
person has any claim or has filed any action or has threatened to file any
action or bring a claim by virtue of his or her employment by Capital
Reserve including, without limiting the generality of the foregoing, sexual
harassment, wrongful termination, or other actions.
3.17 Major Contracts. Except as disclosed in Schedule 3.17 of the Capital
Reserve Disclosure Schedule, Capital Reserve is not
a party to or subject to:
(a) Any union contract or any employment or consulting contract,
agreement or arrangement providing for future compensation, whether written
or oral, with any officer, consultant, director or employee that is not
terminable by Capital Reserve on thirty (30) days' or less notice without
penalty or obligation to make payments related to such termination;
(b) Any plan, contract or arrangement, whether written or oral,
providing for bonuses, pensions, deferred compensation, severance pay or
severance benefits, retirement payments, profit-sharing payments or similar
such payments;
(c) Any joint venture contract, agreement or arrangement or any other
agreement that has involved or is expected to involve a sharing of profits
with another person or entity;
(d) Any existing marketing, distribution, agency or brokerage
agreement in which the annual amount involved in fiscal 2007 exceeded
$5,000 in aggregate amount or pursuant to which Capital Reserve has granted
or received most favored nation pricing provisions or exclusive marketing
rights related to any product, group of products or territory;
(e) Any lease for realty or personal property in which the amount of
payments that Capital Reserve is required to make on an annual basis
exceeds $1,500;
(f) Any instrument evidencing or related in any way to indebtedness
incurred in the acquisition of companies or other entities or indebtedness
for borrowed money by way of direct loan, sale of debt securities, purchase
money obligation, conditional sale, guarantee, leasehold obligations or
otherwise;
(g) Any material license agreement, either as licensor or licensee;
(h) Any contract containing covenants purporting to limit the freedom
of Capital Reserve to compete in any line of business in any geographic
area;
(i) Any insurance policy or fidelity or surety bond;
(j) Any agreement of indemnification relating to Capital Reserve or
any of its officers, directors or employees;
(k) Any agreement, contract or commitment relating to capital
expenditures that involves future payments individually in excess of $1,500
or in the aggregate in excess of $5,000 by Capital Reserve;
(l) Any agreement, contract or commitment relating to personal
services to be rendered by any person to Capital Reserve requiring the
payment of more than $1,000 per month or the disposition or acquisition of
any assets by Capital Reserve; or
(m) Any other agreement, contract or commitment that is material to
Capital Reserve's business.
Each agreement, contract, mortgage, indenture, plan, lease, instrument,
permit, concession, franchise, arrangement, license, regulations and commitment
listed on the Capital Reserve Disclosure Schedule pursuant to this Section 3.17
is valid and binding on Capital Reserve, and is in full force and effect, and
neither Capital Reserve nor to the best knowledge of Capital Reserve, any other
party thereto has breached or is aware of any facts that would lead it to
believe that it has breached, any provision of, or is in default under the terms
of any such agreement, contract, mortgage, indenture, plan, lease, instrument,
permit, concession, franchise, arrangement, license, regulation or commitment.
To the best knowledge of Capital Reserve, no such agreement, contract, mortgage,
indenture, plan, lease, instrument, permit, concession, franchise, arrangement,
license or commitment contains any material liquidated damages, penalty or
similar provision. To the best knowledge of Capital Reserve, no party to any
such agreement contract, mortgage, indenture, plan, lease, instrument, permit,
registration, concession, franchise, arrangement, license or commitment intends
to cancel, withdraw, modify or amend the same.
3.18 Taxes.
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(a) All tax returns, statements, reports and forms (including, but not
limited to, estimated Tax returns and reports and information returns and
reports) required to be filed with any Taxing Authority (as defined in
Section 3.18(f) below) with respect to any Taxable period ending on or
before the Closing Date, by or on behalf of Capital Reserve (collectively,
the "Capital Reserve Returns"), have been or will be filed when due
(including any extensions of such due date), and all amounts shown due
thereon on or before the Closing Date have been or will be paid on or
before such date. The balance sheets included in the Capital Reserve
Financial Statements (i) fully accrue all actual and contingent liabilities
for Taxes with respect to all periods through September 30, 2007 and
Capital Reserve has not and will not incur any Tax liability in excess of
the amount reflected on the Capital Reserve Financial Statements with
respect to such periods and (ii) properly accrues in accordance with GAAP
all liabilities for Taxes payable after September 30, 2007 with respect to
all transactions and events occurring on or prior to such date. All
information set forth in the footnotes to the Capital Reserve Financial
Statements relating to Tax matters is true, complete and accurate in all
material respects.
(b) No material Tax liability since September 30, 2007 has been
incurred other than in the ordinary course of business and adequate
provision has been or will be made for all Taxes since that date in
accordance with GAAP on at least a quarterly basis. Capital Reserve has
withheld and paid to the applicable financial institution or Taxing
Authority all amounts required to be withheld. Neither Capital Reserve nor
any member of any affiliated or combined group of which Capital Reserve has
been a member has granted any extension or waiver of the limitation period
applicable to any of the Capital Reserve Returns.
(c) The Shareholders shall be entitled to receive on a pro rata basis
any tax refund that Capital Reserve shall receive from any Taxing Authority
(as defined in Section 3.18(f) below) with respect to any Taxable period
ending on or before the Closing Date.
(d) The Shareholders agree to be jointly and severally liable for
paying any premium tax due and owing with respect to Capital Reserve's
operations ending on or before the Closing Date. Security National agrees
to be liable for paying any premium tax due and owing with respect to
Capital Reserve's operations following the Closing Date.
(e) There is no material claim, audit, action, suit, proceeding or
investigation now pending or (to the best knowledge of Capital Reserve)
threatened against or with respect to Capital Reserve in respect of any Tax
or assessment. No notice of deficiency or similar document of any Tax
Authority has been received by Capital Reserve, and there are no
liabilities for Taxes (including liabilities for interest additions to tax
and penalties thereof and related expenses) with respect to the issues that
have been raised (and are currently pending) by any Tax Authority that
could, if determined adversely to Capital Reserve, materially and adversely
affect the liability of Capital Reserve for Taxes. There are no liens for
Taxes against the assets of Capital Reserve except liens for current Taxes
not yet due. Capital Reserve has not been and will not be required to
include any material adjustment in its Taxable income for any Tax period
(or portion thereof) pursuant to the Code or any comparable provision under
state or foreign Tax laws as a result of transactions, events or accounting
methods employed prior to the Closing.
(f) There is no contract, agreement, plan or arrangement, including,
but not limited to, the provisions of this Agreement, covering any employee
or independent contractor or former employee or independent contract of
Capital Reserve that, individually or collectively, could give rise to the
payment of any amount that would not be deductible pursuant to the Code.
Other than pursuant to this Agreement, Capital Reserve is not a party to or
bound by (nor will it, prior to the Closing Date, become a party to or
become bound by) any tax indemnity, tax sharing or tax allocation agreement
(whether written, oral or arising under operation of federal law as a
result of Capital Reserve being a member of a group filing consolidated tax
returns, under operation of certain state law as a result of Capital
Reserve being a member of a group filing consolidated tax returns, under
operation of certain state laws as a result of Capital Reserve being a
member of a unitary group or under comparable laws of other states or
foreign jurisdictions) that includes a party other than Capital Reserve.
Capital Reserve has listed in Schedule 3.18 of the Capital Reserve
Disclosure Schedule all of Capital Reserve's material federal and state tax
returns for years ending December 31, 2004, 2005, and 2006, information
statements, reports work papers, Tax opinions, Tax memoranda and other Tax
data and documents of Capital Reserve that Capital Reserve has furnished or
made available to Security National or will furnish or make available to
Security National within ten (10) days from the date of this Agreement.
(g) The federal income tax returns of Capital Reserve have not been
audited by the Internal Revenue Service, (or a predecessor agency). Capital
Reserve has not received any notice of assessment or proposed assessment of
any United States, State or other tax measured by its income, property or
transactions, and no issues have been raised by any taxing authority
providing a basis for any additional assessment of any such tax. Capital
Reserve has not waived any law or regulation fixing, or consenting to the
extension of, any period of time for the assessment of any tax or other
governmental imposition, or become committed so to do, except as described
in Schedule 3.18 which is true, complete and correct in all material
respects. The reserves for current taxes accrued on the books of Capital
Reserve are reasonable and adequate in amount. The Shareholders agree to
indemnify Security National for any and all tax assessments not accrued on
the books of Capital Reserve and related to any income, events,
transactions, or time periods prior to the Closing, except for any tax
which may become due on income previously excluded from taxable income and
accumulated in the undistributed policyholders' surplus account ("Phase III
Tax").
(h) For purposes of this Agreement, the following terms have the
following meanings: "Tax" (and, with correlative meaning, "Taxes" and
"Taxable") means (i) any net income, alternative or add-on minimum tax,
gross income, gross receipts, sales, use, ad valorem, transfer, franchise,
privilege, intangible, profits, license, withholding, payroll, employment,
excise, insurance, severance, stamp, occupation, premium, property,
environmental or windfall profit tax, custom, duty or other tax,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest or any penalty, addition to or additional amount
imposed by any Governmental Entity (a "Taxing Authority") responsible for
the imposition of any such tax (whether domestic or foreign), (ii) any
liability for the payment of any amounts of the type described in clause
(i) above as a result of being a member of an affiliated, consolidated,
combined or unitary group for any Taxable period and (iii) any liability
for the payment of any amounts of the type described in clause (i) or
clause (ii) above as a result of any express or implied obligation to
indemnify any other person or entity.
3.19 Interests of Officers and Directors. Except as described in Schedule
3.19 of the Capital Reserve Disclosure Schedule, none of Capital Reserve's
officers or directors (or relatives of such persons living in the same
household) have any material interest in any property, whether real or personal,
tangible or intangible, used in or pertaining to Capital Reserve's business.
3.20 Intellectual Property.
(a) Capital Reserve owns or is licensed or otherwise entitled to
exercise all rights under or with respect to all intellectual property
including without limitation, patents, copyrights, trademarks or service
marks owned or used in connection with its business. Schedule 3.20 of the
Capital Reserve Disclosure Schedule lists all patents, trademarks, works of
authorship, registered and unregistered copyrights, registered and
unregistered trademarks, trade names and service marks, and all
applications therefore owned or licensed by Capital Reserve (the
"Intellectual Property Rights"), and further specifies the jurisdictions in
which each such matter and registration has been filed, including the
respective registration or application numbers. Schedule 3.20 of the
Capital Reserve Disclosure Schedule also lists all material licenses,
sublicenses and other agreements (oral or written) as to which Capital
Reserve is a party and pursuant to which Capital Reserve or any other
person or entity owns or is licensed or otherwise authorized or obligated
with respect to any Intellectual Property Right and includes the identity
of all parties thereto. Capital Reserve is not, nor as a result of the
execution and delivery of this Agreement or the performance of Capital
Reserve's obligations hereunder will be, in violation of any license,
sublicense or other agreement applicable to it, whether or not described in
the Capital Reserve Disclosure Schedule. Except to the extent clearly and
conspicuously disclosed in Schedule 3.20 of the Capital Reserve Disclosure
Schedule, Capital Reserve is the sole and exclusive owner or licensee of,
with full right, title and interest in and to (free and clear of any liens,
claims or encumbrances), the Intellectual Property Rights, and has the sole
and exclusive right in respect thereof (and, except as set forth in
Schedule 3.20 of the Capital Reserve Disclosure Schedule is not
contractually obligated to pay any compensation to any third party with
respect thereto).
3.21 Restrictions on Business Activities. There is no material agreement,
judgment, injunction, order or decree binding upon Capital Reserve that has or
could reasonably be expected to have the effect of prohibiting or materially
impairing any business practice of Capital Reserve, any acquisition of property
by Capital Reserve or the conduct of business by Capital Reserve as currently
conducted or as currently proposed to be conducted.
3.22 Title to Properties; Absence of Liens and Encumbrances; Condition of
Equipment.
(a) Schedule 3.22 of the Capital Reserve Disclosure Schedule sets
forth a true, complete and accurate list of all real property owned or
leased by Capital Reserve and summarizes all material lease terms,
including the aggregate annual rental or other fees payable, the length of
all leases and the number of extensions available.
(b) Capital Reserve has good and valid title to, or, in the case of
leased properties and assets, valid leasehold interests in, all of its
tangible properties and assets, whether real, personal or mixed, used in
its business, free and clear of any liens (other than liens for taxes that
are not yet delinquent), claims, charges, pledges, security interests or
other encumbrances, except as reflected in the Capital Reserve Financial
Statements and except for such imperfections of title and encumbrances, if
any, that are not substantial or material in character, amount or extent,
and that do not materially detract from the value, or interfere with the
present use, of the property subject thereto or affected thereby.
(c) The machinery, equipment and other personal property
(collectively, the "Equipment") owned or leased by Capital Reserve is,
taken as a whole (i) adequate for the conduct of the business of Capital
Reserve consistent with its past practice, (ii) suitable for the uses to
which it is currently employed, (iii) in good operating condition, (iv)
regularly and properly maintained and (v) free from all defects, except,
with respect to clauses (ii) through (iv) of this Section 3.22(c), as would
not have a material adverse effect on the Business Condition of Capital
Reserve.
3.23 Governmental Authorizations and Licenses. Capital Reserve is the
holder of all licenses, authorizations, permits, concessions, registrations,
certificates and other franchises of any Governmental Entity required to operate
its business (collectively, the "Licenses") and is in compliance with the terms,
conditions, limitations, restrictions, standards, prohibitions, requirements and
obligations of all of such Licenses, except where the failure to hold any such
License or to so comply would not have a material adverse effect on the Business
Condition of Capital Reserve. The Licenses are in full force and effect on the
date hereof and will be in full force and effect on the Closing Date, except as
noted in Section 3.8 hereof. There is not now pending, nor to the best knowledge
of Capital Reserve is there threatened, any action, suit, investigation or
proceeding against Capital Reserve before any Governmental Entity with respect
to the Licenses, nor is there any issued or outstanding notice, order or
complaint with respect to the violation by Capital Reserve of the terms of any
such License or any rule or regulation applicable thereto.
3.24 Environmental Matters.
(a) To the best knowledge of Capital Reserve, no substance that is
regulated by any Governmental Entity or that has been designated by any
Governmental Entity to be radioactive, toxic, hazardous or otherwise a
danger to health or the environment (a "Hazardous Material") is present in,
on or under any property that Capital Reserve has at any time owned,
operated, occupied or leased.
(b) To the best knowledge of Capital Reserve, Capital Reserve has not
transported, stored, used, manufactured, released or exposed its employees
or any other person to any Hazardous Material in violation of any
applicable statute, rule, regulation, order or law, except where such
violation would not have a material adverse effect on the Business
Condition of Capital Reserve.
(c) To the best knowledge of Capital Reserve, Capital Reserve has
obtained all permits, consents, waivers, exemptions, licenses, approvals
and other authorizations (collectively, "Environmental Permits") required
to be obtained under the applicable statutes, rules, regulations, orders or
laws of any Governmental Entity relating to land use, public and employee
health and safety, pollution or protection of the environment
(collectively, "Environmental Laws"), except where the failure to obtain
such an Environmental Permit would not have a material adverse effect on
the Business Condition of Capital Reserve. Schedule 3.24 of the Capital
Reserve Disclosure Schedule sets forth a true, complete and accurate list
of all such Environmental Permits, each of which is in full force and
effect on the date hereof and will be in full force and effect on the
Closing Date. Capital Reserve (i) is in full compliance in all of the
material respects with all of the terms and conditions of the Environmental
Permits and (ii) is in compliance in all material respects with all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws or contained in any regulation, code, plan, order,
decree, judgment, notice or demand letter issued, entered into, promulgated
by or approved thereunder. Capital Reserve has not received any notice nor
is Capital Reserve aware of any past or present condition or practice of
the business conducted by Capital Reserve that forms or that could be
reasonably expected to form the basis of any material claim, action, suit,
proceeding, hearing or investigation against Capital Reserve, arising out
of the manufacture, processing, distribution, use, treatment, storage,
spill, disposal, transport or handling, or the emission, discharge, release
or threatened release into the environment, of any Hazardous Material by
Capital Reserve.
3.25 Insurance. Schedule 3.25 of the Capital Reserve Disclosure Schedule
lists and summarizes all insurance policies and fidelity or surety bonds
covering the assets, inventories, business, equipment, properties, operations,
employees, officers and directors of Capital Reserve, the amounts of coverage
under each such policy and bond of Capital Reserve. Within the last four years,
Capital Reserve has not been refused any requested insurance or bond coverage.
Except as disclosed on the Capital Reserve Disclosure Schedule, all premiums
payable under all of such policies and bonds have been paid and Capital Reserve
is otherwise in full compliance with the terms of all of such policies and bonds
(or other policies and bonds providing substantially similar insurance
coverage). Such policies of insurance and bonds are of the type and in amounts
customarily carried by persons and entities conducting businesses similar to
that of Capital Reserve. Capital Reserve does not know of any threatened
termination of or material premium increase with respect to, any of such
insurance policies or bonds.
3.26 Labor Matters. To the best knowledge of Capital Reserve, Capital
Reserve is in compliance in all material respects with all currently applicable
laws, rules and regulations respecting employment, discrimination in employment,
terms and conditions of employment, wages and hours and occupational safety and
health and employment practices, and has not and currently is not engaged in any
unfair labor practice. Capital Reserve has not received any notice from any
Governmental Entity, and there has not been asserted before any Governmental
Entity, any claim, action or proceeding to which Capital Reserve is a party or
involving Capital Reserve, and there is neither pending nor, to Capital
Reserve's best knowledge, threatened, any investigation or hearing concerning
Capital Reserve arising out of or based upon any such law, regulation or
practice.
3.27 Agents; Customers and Complaints. Schedule 3.27 of the Capital Reserve
Disclosure Schedule sets forth the names and addresses of the sales agents or
brokers of Capital Reserve as of September 30, 2007. As of the date hereof,
Capital Reserve has no unresolved customer or agent complaints filed with a
Governmental Entity concerning its products and/or services.
3.28 Questionable Payments. Neither Capital Reserve nor, to Capital
Reserve's best knowledge, any director, officer or other employee of Capital
Reserve has: (i) made any payments or provided services or other favors in the
United States or in any foreign country in order to obtain preferential
treatment or consideration by any Governmental Entity with respect to any aspect
of the business of Capital Reserve or any of its Subsidiaries or (ii) made any
political contributions that would not be lawful under the laws of the United
States and the foreign country in which such payments were made. Neither Capital
Reserve nor, to Capital Reserve's best knowledge, any director, officer or other
employee of Capital Reserve nor, to Capital Reserve's best knowledge, any
customer or supplier of any of them, has been the subject of any inquiry or
investigation by any Governmental Entity in connection with payments or benefits
or other favors to or for the benefit of any governmental or armed services
official, agent, representative or employee with respect to any aspect of the
business of Capital Reserve or with respect to any political contribution.
ARTICLE IV
COVENANTS OF THE SHAREHOLDERS
4.1 Shareholders to Sell Shares in Transaction. Each of the Shareholders
agrees to sell his or her respective shares of common stock in the transaction.
Each of the Shareholders represents and warrants that such agreement set forth
in this Section 4.1 constitutes a valid and legally binding obligation of the
Shareholders, enforceable against the Shareholders in accordance with its terms.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SECURITY NATIONAL
Except as noted on the Security National Disclosure Schedule, Security
National represents and warrants as follows:
5.1 Organization, Good Standing and Power. Security National is a
corporation validly existing and in good standing under the laws of the state of
Utah and each has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as it is now being
conducted. Security National has delivered to the Shareholders complete and
correct copies of its Articles of Incorporation and Bylaws, as amended to the
date hereof.
5.2 Authority.
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(a) Security National has all requisite corporate power and authority
to enter into and execute and deliver this Agreement and to consummate the
transactions contemplated hereby and thereby, subject to approval of the
transactions by applicable state insurance commissioners and other relevant
Governmental Entities having jurisdiction over its business. This
Agreement, when executed and delivered by Security National, will
constitute the valid and binding obligation of Security National,
enforceable in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and except that the availability
of equitable remedies is subject to the discretion of the court before
which any proceeding therefor may be brought.
(b) To the best knowledge of Security National, the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby and thereby, will not conflict with or result in any
violation of any material statute, law, rule, regulation, judgment, order,
decree or ordinance applicable to Security National or any of its
Subsidiaries or their respective properties or assets, nor will it conflict
with or result in any breach or default (with or without the giving of
notice or the lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to the loss
of any material benefit under (i) any provision of the Articles of
Incorporation or Bylaws of Security National or of any of its Subsidiaries
or (ii) any material agreement, contract, note, mortgage, indenture, lease,
instrument, permit, concession, franchise or license to which Security
National or any of its Subsidiaries is a party or by which Security
National or any of its Subsidiaries or their respective properties or
assets may be bound or affected.
5.3 Board Authorization. Prior to the Closing, the Board of Directors of
Security National will have authorized the execution and delivery of this
Agreement and the performance by Security National of its obligations under the
Agreement.
ARTICLE VI
CONDUCT AND TRANSACTIONS PRIOR TO CLOSING
DATE; ADDITIONAL AGREEMENT
6.1 Conduct of Business of Capital Reserve.
(a) During the period form the date of this Agreement and continuing
until the earlier of the termination of this Agreement or the Closing Date,
Capital Reserve shall carry on its business in the usual, regular and
ordinary course in substantially the same manner as conducted prior to the
date of this Agreement and, to the extent consistent with such businesses,
use all commercially reasonable efforts consistent with past practice and
policies to preserve intact its present business organizations, keep
available the services of its present officers and key employees and
preserve its relationships with customers, suppliers, distributors, agents,
brokers, licensors, licensees, Governmental Entities, and others having
business dealings with them, to the end that its good will and ongoing
businesses shall be unimpaired at the Closing Date. Capital Reserve shall
promptly notify Security National of any event or occurrence not in the
ordinary course of business of Capital Reserve, and any event which could
have a material and adverse effect on the Business Condition of Capital
Reserve. Except as expressly contemplated by this Agreement or disclosed in
the Capital Reserve Disclosure Schedule, Capital Reserve shall not, without
the prior written consent of Security National:
(i) Grant any options, warrants, or stock purchase rights;
(ii) Enter into any commitment or transaction not in the ordinary
course of business to be performed over a period longer than six
months in duration, or to purchase fixed assets with an aggregate
purchase price exceeding $5,000, or (ii) sell or commit to sell any
products with an aggregate purchase price greater than $5,000 in any
single month if the expected profit margins are lower than those
customarily obtained for sales of similar products by Capital Reserve
in the past.
(iii) Grant any severance or termination pay to any director,
officer, employee or consultant, except mandatory payments made
pursuant to standard written agreements outstanding on the date hereof
(any such agreement or arrangement to be disclosed in Schedule 6.1 of
the Capital Reserve Disclosure Schedule);
(iv) Transfer to any person title to any rights to Capital
Reserve Intellectual Property Rights except in the ordinary course of
business;
(v) Enter into or amend any agreements pursuant to which any
other party is granted marketing, agency or other similar rights of
any type or scope with respect to any products of Capital Reserve;
(vi) Except in the ordinary course of business with prior notice
of Security National, violate, amend or otherwise modify the terms of
any of their material contracts binding on Capital Reserve set forth
on the Capital Reserve Disclosure Schedule;
(vii) Commence a lawsuit other than for the routine collection of
bills or for a breach of this Agreement;
(ix) Issue, deliver or sell, authorize or propose the issuance,
delivery or sale of, or purchase or propose the purchase of, any
shares of its capital stock or securities convertible into, or
subscriptions rights, warrants, or options to acquire, or other
agreements or commitments of any character obligating it to issue any
such shares or other convertible securities;
(x) Solicit approval for and effect any amendments to Capital
Reserve's Articles of Incorporation or Bylaws (other than as
contemplated by this Agreement);
(xi) Acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets of, or by
any other manner, any business or any corporation, partnership,
association or other business organization or division thereof, or
otherwise acquire or agree to acquire any assets which are material,
individually or in the aggregate, to the Business Condition of Capital
Reserve;
(xii) Sell, lease, license or otherwise dispose of any of its
properties or assets except in the ordinary course of business and
consistent with past practice;
(xiii) Incur any indebtedness for borrowed money or guarantee any
such indebtedness or issue or sell any debt securities or guarantee
any debt securities of others or loan money to others;
(xiv) Adopt or amend any Plan, or enter into any employment
contract, pay any special bonus or special remuneration to any
director, employee or consultant, or increase the salaries or wage
rates of its employees other than pursuant to scheduled employee
reviews under Capital Reserve's normal employee review cycle, as the
case may be, or in connection with the hiring of employees other than
officers in the ordinary course of business, in all cases consistent
with past practice;
(xv) Revalue any of its assets, including without limitation,
writing down the value of inventory or writing off notes or accounts
receivable other than in the ordinary course of business and
consistent with past practice;
(xvi) Pay, discharge or satisfy in an amount in excess of $25,000
in any one case any claim, liability or obligation (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the
payment, discharge or satisfaction in the ordinary course of business
of liabilities reflected or reserved against Capital Reserve's
Financial Statements or those incurred after the date of the September
30, 2007 Unaudited Balance Sheet in the ordinary course of business;
(xvii) Make any material tax election other than in the ordinary
course of business and consistent with past practice, change any
material tax election, adopt any material tax accounting method
practice, change any material tax accounting method, file any material
tax return (other than any estimate tax returns, payroll tax returns
or sale tax returns) or any amendment to a material tax return, enter
into any closing agreement, settle any tax claim or assessment, or
consent to any tax claim or assessment, without the prior written or
unwritten consent of Security National, which consent will not be
reasonably withheld; and
(xviii) Engage in any activities or transactions that are outside
the ordinary course of its business consistent with past practice.
(b) Unless and until this Agreement shall have been terminated by
either party pursuant to Article VIII, Capital Reserve shall not, directly
or indirectly, through any officer, director, agent or otherwise, (i)
solicit, initiate or encourage submission or proposals or offers from any
person relating to any acquisition or purchase of all or substantially all
of the assets of, or any equity interest in, Capital Reserve or any merger,
consolidation, business combination or similar transaction with Capital
Reserve, or (ii) participate in any discussions or negotiations regarding,
furnish to any other person any confidential information with respect to,
or otherwise cooperate with any way with, or participate in, facilitate or
encourage, any effort or attempt by any other person to do or seek any of
the foregoing.
(c) Capital Reserve shall not take, or fail to take, any action which
from the date hereof through the Closing would cause or constitute a breach
of any of its representations, warranties and covenants set forth in this
Agreement or which would from the date hereof through the Closing cause any
of such representations or warranties to be inaccurate. In the event of,
and promptly after becoming aware of, the occurrence of or the pending or
threatened occurrence of any event which would cause or constitute such a
breach of inaccuracy, Capital Reserve shall give detailed notice thereof to
the other parties and shall use its best efforts to prevent or promptly
remedy such breach or inaccuracy.
(d) Capital Reserve shall promptly apply for or otherwise seek, and
use its commercially reasonable efforts to obtain all consents and
approvals required to be obtained by it for the consummation of this
transaction, and Capital Reserve shall use its best efforts to obtain all
necessary consents, waivers and approvals under any of Capital Reserve's
material agreements, contracts licenses or leases in connection with this
transaction, except such consents and approvals which Security National and
Capital Reserve agree Capital Reserve shall not seek to obtain, as
contemplated by the Capital Reserve Disclosure Schedule.
(e) Capital Reserve shall each use its best efforts to effectuate the
transactions contemplated hereby and to fulfill and cause to be fulfilled
the conditions to closing under this Agreement.
(f) Capital Reserve shall take all reasonable actions necessary to
comply promptly with all legal requirements which may be imposed on Capital
Reserve with respect to this transaction and will promptly cooperate with
and furnish information to Security National in connection with any such
requirements imposed upon Capital Reserve, Security National or any other
party in connection with this transaction. Capital Reserve shall take all
reasonable actions to obtain (and to cooperate with Security National and
its subsidiaries in obtaining) a consent, authorization, order or approval
of, or any exception by, any Governmental Entity, required to be obtained
or made by Capital Reserve (or by Security National or its subsidiaries) in
connection with this transaction or the taking of any action contemplated,
by this Agreement, and to defend all lawsuits or other legal proceedings
challenging this Agreement or the consummation of the transactions
contemplated by this Agreement and to defend all lawsuits or other legal
proceedings challenging this Agreement or the consummation of the
transactions contemplated hereby, to lift or rescind any injunction or
restraining order or other order adversely affecting the ability or the
parties to consummate the transactions contemplated hereby, and to effect
all necessary registrations and filings and submissions or information
required by any Governmental Entity, and to fulfill all conditions to this
Agreement.
(g) Capital Reserve shall give Security National and its agents, full
and complete access to all books, records, personnel, properties, assets
and facilities of Capital Reserve for Security National's inspection and
due diligence, in its discretion and Security National may make copies of
documents and information subject to Section 10.19 below.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation to Effect This Transaction. The
respective obligation of each party to effect this transaction shall
be subject to the satisfaction prior to the Closing of the following
conditions:
(a) Legal Action. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the
consummation of this transaction shall have been issued by any Governmental
Entity and remain in effect, and no litigation seeking the issuance of such
and order or injunction, or seeking relief against Capital Reserve, or
Security National if this transaction is consummated, shall be pending
which, in the good faith judgment of Capital Reserve's or Security
National's Board of Directors (acting upon the written opinion of their
respective outside counsel) has a reasonable probability of resulting in
such order, injunction or relief and such relief would have a material
adverse effect on the Business Condition of such party. In the event any
such order or injunction shall have been issued, each party agrees to use
commercially reasonable efforts to have any such injunction lifted.
(b) Statutes. No action shall have been taken, and no statute, rule,
regulation or order shall have been enacted, promulgated or issued or
deemed applicable to this transaction by any Governmental Entity which
would (i) make the consummation of this transaction illegal, (ii) prohibit
Security National's or Capital Reserve's ownership or operation of all or a
material portion of the business or assets of Capital Reserve, or Security
National and its subsidiaries taken as a whole, or compel Security National
or Capital Reserve to dispose of or hold separate all or a material portion
of the business or assets of Capital Reserve, or Security National and its
subsidiaries taken as a whole, as a result of this transaction or (iii)
render Security National or Capital Reserve unable to consummate this
transaction, except for any waiting period provisions.
7.2 Conditions to Obligations of Security National. The obligations of Security
National to effect this transaction are subject to the satisfaction of the
following conditions, unless waived by Security National:
(a) Representations and Warranties. The representations and warranties
of Capital Reserve set forth in this Agreement (determined without regard
to any materiality qualifiers, including without limitation "material
adverse effect") shall be true and correct in all respects as of the date
of this Agreement and as of the Closing Date, unless any failures to be
true and correct, individually or in the aggregate, do not have and could
not reasonably be expected to have a material adverse effect on the
Business Condition of Capital Reserve; and there shall have been no willful
breach by Capital Reserve of any of its representations or warranties made
in this Agreement. Security National shall have received a certificate
signed by the Chief Executive Officer and the Chief Financial Officer of
Capital Reserve to such effect on the Closing Date.
(b) No Material Adverse Change. There shall have been no material
adverse change in the Business Condition of Capital Reserve from the date
of this Agreement through the Closing Date and Security National shall have
received a certificate signed by the Chief Executive Officer and the Chief
Financial Officer of Capital Reserve to such effect on the Closing Date.
(c) Performance of Obligations of Capital Reserve and Shareholders.
Capital Reserve and the Shareholders shall have performed all obligations
and covenants required to be performed by it under this Agreement prior to
the Closing Date, and Security National shall have received a certificate
signed by the Chief Executive Officer and the Chief Financial Officer of
Capital Reserve to such effect on the Closing Date.
(d) Regulatory Approvals. All authorizations, consents, orders or
approvals of, or declarations of, or declarations or filing with, or
expiration of waiting periods imposed by, any Governmental Entity
(including, without limitation, the states of Utah and Missouri) necessary
for the consummation of the transactions contemplated by this Agreement
shall have been obtained.
(e) Consents. Security National shall have received duly executed
copies of all material third-party non-regulatory consents and approvals
contemplated by this Agreement or the Capital Reserve Disclosure Schedule
in form and substance reasonably satisfactory to Security National.
(f) Resignation of Directors. The directors of Capital Reserve in
office immediately prior to the Closing Date shall have resigned as
directors of the Surviving Corporation effective as of the Closing Date.
(g) Certification. Security National shall have received a statement
signed by the Chief Executive Officer and the Chief Financial Officer of
Capital Reserve certifying the amount of funds in the Asset Adequacy
Reserve as of the Closing Date.
(h) Indemnification Agreement. Security National shall have received
indemnification agreements from the Shareholders as required in Section
1.2(c) of this Agreement.
(i) Legal Opinion. Security National shall have received an opinion of
Capital Reserve's legal counsel, in form and substance acceptable to
Security National, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by
Capital Reserve and constitutes the valid and binding obligations of
Capital Reserve and the Shareholders and all corporate action required by
Capital Reserve in order to effect the transactions contemplated hereby has
been taken;
(ii) Capital Reserve is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Missouri and is duly authorized to conduct its business as presently
conducted;
(iii) Capital Reserve is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Missouri and is duly licensed to conduct the insurance business that
it presently conducts under the Missouri insurance law;
(iv) The authorized capital structure of Capital Reserve consists
of 14,000 shares of Common Stock and there are 3,564 shares of Common
Shares issued and outstanding, all of which are owned by the
Shareholders. All issued and outstanding shares of Common Stock have
been duly authorized, validly issued and are fully-paid and
nonassessable and were not issued in violation of the pre-emptive
rights of any Shareholder;
(v) Upon delivery to Security National of the stock certificates
evidencing all of the issued and outstanding shares of Common Stock,
said Common Stock will be free and clear of all liens, claims,
encumbrances or other adverse interests; and
(vi) Neither the execution and delivery by Capital Reserve of
this Agreement, nor the compliance by Capital Reserve with the terms
and provisions hereof, will conflict with or result in a breach of (A)
any of the terms, conditions or provisions of the Articles of
Incorporation, the Bylaws or any other governing instrument with
respect to Capital Reserve, or (B) with any judgment, order,
injunction, decree, law, statute, regulation or ruling with or of any
court or Governmental Entity known to such counsel to which Capital
Reserve is subject, or will constitute a default thereunder.
In rendering such opinion, such counsel may rely, to the extent such
counsel deems such reliance necessary or appropriate, upon certificates of
public officials or of any officer or officers of Capital Reserve, provided the
extent of such reliance is specified in such opinion and executed copies of such
opinions and certificates are furnished to Security National.
7.3 Conditions to Obligations of Capital Reserve and Shareholders. The
obligation of Capital Reserve and the Shareholders to effect this transaction is
subject to the satisfaction of the following conditions unless waived by Capital
Reserve and the Shareholders.
(a) Representations and Warranties. The representations and warranties
of Security National set forth in this Agreement shall be true and correct
in all material respects (except for such representations and warranties
which are qualified by their terms by a reference to materiality, which
representations and warranties as so qualified shall be true in all
aspects) (i) as of the date of this Agreement, and (ii) as of the Closing
Date as though made on and as of each such date, except as otherwise
contemplated by this Agreement, and Capital Reserve shall have received a
certificate signed by the Chief Executive Officer and the Chief Financial
Officer of Security National to such effect.
(b) Performance of Obligations of Security National. Security National
shall have performed all obligations and covenants required to be performed
by them under this Agreement prior to the Closing Date, and Capital Reserve
shall have received a certificate signed by the Chief Executive Officer and
the Chief Financial Officer of Security National to such effect.
(c) Legal Opinion. Capital Reserve and the Shareholders shall have
received an opinion of Security National's legal counsel, in form and
substance satisfactory to the Capital Reserve, to the effect that:
(i) Security National is a corporation duly organized, validly
existing and in good standing under the laws of the State of Utah with
all requisite corporate power and corporate authority to execute,
deliver and perform this Agreement;
(ii) the execution, delivery and performance of this Agreement by
Security National will not conflict with any of the terms, provisions
or conditions of the Articles of Incorporation or the Bylaws of
Security National;
(iii) the execution, delivery and performance of this Agreement
has been duly authorized by all necessary corporate action on the part
of Security National and is enforceable against Security National in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles relating to or limiting creditor's rights
generally.
In rendering such opinion such counsel may rely, to the extent
such counsel deems such reliance necessary or appropriate, upon
certificates of public officials or of any officer or officers of
Security National, provided the extent of such reliance is specified
in such opinion and executed copies of such certificates are furnished
to Capital Reserve.
(f) Payment of Purchase Consideration. Security National shall pay the
Purchase Consideration as required in Section 1.2 of this Agreement.
ARTICLE VIII
TERMINATION
8.1 Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date:
(i) by mutual written agreement of Security National, Capital
Reserve, and the Shareholders;
(ii) by Security National, if there has been a breach by Capital
Reserve or the Shareholders of any representation, warranty, covenant
or agreement set forth in this Agreement on the part of Capital
Reserve or the Shareholders which is material and which Capital
Reserve or the Shareholders fails to cure within five (5) business
days after notice thereof is given by Security National (except that
no cure period shall be provided for a breach by Capital Reserve or
the Shareholders which by its nature cannot be cured);
(iii) by Capital Reserve or the Shareholders, if there has been a
breach by Security National of any representation, warranty, covenant
or agreement set forth in this Agreement on the part of Security
National which is material and which Security National fails to cure
within five (5) business days after notice thereof is given by Capital
Reserve (except that no cure period shall be provided for a breach by
Security National which by its nature cannot be cured);
(iv) by Security National or the Shareholders, if this
transaction shall not have been consummated on or before January 31,
2008; provided, however, that if the sole reason this transaction has
not been completed by such date results from delays in the regulatory
approval process, this Agreement may not be terminated but rather
shall remain in full force and effect for an additional sixty (60)
days beyond January 31, 2008.
(v) by Security National or the Shareholders if any permanent
injunction or other order of a court or other competent authority
preventing this transaction shall have become final and nonappealable.
(b) Where action is taken to terminate this Agreement pursuant to this
Section 8.1 it shall be sufficient for such action to be authorized by the Board
of Directors of the party taking such action.
(c) In the event of termination of this Agreement as provided in this
Section, the provisions of this Agreement shall forthwith become void, except
that the agreements contained or referred to in Sections 10.16 (expenses), 10.17
(brokers, finders), 10.18 (public announcements) and 10.19 (confidentiality)
shall survive. Notwithstanding the foregoing, in the event of a breach of this
Agreement by any party hereto, nothing herein shall limit the remedies at law or
in equity of the other party with respect thereto.
ARTICLE IX
INDEMNIFICATION
9.1 Obligation of the Shareholders to Indemnify. Subject to the time
limitations set forth in Section 10.1 below, the Shareholders agree to
indemnify, defend and hold harmless Security National and its respective
directors, officers, employees, agents, subsidiaries, affiliates, successors and
assigns, from and against all losses, liabilities, claims, damages,
deficiencies, costs and expenses, including without limitation interest,
penalties and attorneys' fees and disbursements (collectively, the "Losses" and
singularly, a "Loss"), based upon, arising out of or otherwise related to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of Capital Reserve or the Shareholders contained in this Agreement or
in any document or other papers delivered pursuant to this Agreement, including
the Capital Reserve Financial Statements, and in respect of any third party
claim made based upon facts alleged which, if true, would have constituted any
such inaccuracy or breach. For purposes of this Agreement, Security National
shall be deemed to have suffered a Loss if and to the extent that such Loss has
been suffered by Capital Reserve. Notwithstanding the foregoing, the time
limitations set forth in Section 10.1 below do not apply to the Shareholders'
tax obligations set forth in Section 3.18 hereof.
9.2 Notice and Opportunity to Defend.
(a) Notice of Asserted Liability. Promptly after receipt by any person
entitled to indemnity under this Agreement (the "Indemnitee") of notice of
any demand, claim or circumstances which, with the lapse of time, would or
might give rise to a claim or the commencement or threatened commencement
of any action, proceeding or investigation (an "Asserted Liability") that
may result in a Loss, the Indemnitee may, at its option, give notice
thereof (the "Claims Notice") to the Shareholders (the "Indemnifying
Party"). The Claims Notice shall describe the Asserted Liability in
reasonable detail, and shall indicate the amount (estimate, if necessary
and to the extent feasible) of the Loss that has been or may be suffered by
the Indemnitee.
(b) Opportunity To Defend. The Indemnifying Party may elect to
compromise or defend, at its own expense and by its own counsel, any
Asserted Liability. If the Indemnifying Party elects to compromise or
defend such Asserted Liability, it shall within thirty (30) days after the
Claims Notice is given or sooner, if the nature of the Asserted Liability
so requires, notify the Indemnitee of its intent to do so, and the
Indemnitee shall cooperate, at the expense of the Indemnifying Party, in
the compromise of, or defense against, such Asserted Liability. If the
Indemnifying Party elects not to compromise or defend the Asserted
Liability, fails to notify the Indemnitee of its election as herein
provided or contests its obligation to indemnify under this Agreement, the
Indemnitee may pay, compromise or defend such Asserted Liability.
Notwithstanding the foregoing, neither the Indemnifying Party nor the
Indemnitee may settle or compromise any claim over the objection of the
other, provided, however, that consent to settlement or compromise shall
not be unreasonably withheld. In any event, the Indemnitee and the
Indemnifying Party may participate, at their own expense, in the defense of
such Asserted Liability. If the Indemnifying Party chooses to defend any
claim, the Indemnitee shall make available to the Indemnifying Party any
books, records or other documents within its control that are necessary or
appropriate for such defense.
(c) Disputes with Third Parties. Anything in this Section 9.2(c) to
the contrary notwithstanding, in the case of any Asserted Liability by any
supplier, distributor, agent, broker, shareholder, franchisee, customer or
other third party doing business with Capital Reserve prior to the Closing
in connection with which Security National may make a claim against the
Shareholders for indemnification pursuant to this Section 9.2(c), Security
National may, at its option, give a Claims Notice with respect thereto but,
unless Security National and the Indemnifying Party otherwise agree,
Security National shall have the exclusive right at its option to defend
any such matter, subject to the duty of Security National to consult with
the Indemnifying Party and its attorneys in connection with such defense
and provided that no such matter shall be compromised or settled by
Security National without the prior consent of the Indemnifying Party,
which consent shall not be unreasonably withheld. The Indemnifying Party
shall have the right to recommend in good faith Security National proposals
to compromise or settle claims brought by a supplier, agent, or customer,
and Security National agrees to present such proposed compromises or
settlements to such supplier, distributor, shareholder, franchisee or
customer. All amounts required to be paid in connection with any such
Asserted Liability pursuant to the determination of any court, governmental
or regulatory body or arbitrator, and all amounts required to be paid in
connection with any such compromise or settlement consented to by the
Indemnifying Party, shall be borne and paid by the Indemnifying Party. The
parties agree to cooperate fully with one another in the defense,
compromise or settlement of any Asserted Liability. In the event any
compromise, settlement or judgment amount includes amounts resulting from
frivolous or groundless claims or defenses made by Indemnitee, the
Indemnifying Party shall not bear the portion of the amount to be paid
relating to such frivolous or groundless claims.
ARTICLE X
GENERAL PROVISIONS
10.1 Survival of Representations, Warranties, Covenants and Agreements
. Except as provided below with regard to Section 3.18, all
representations, warranties, covenants and agreements in this Agreement or
in any document or instrument delivered pursuant to this Agreement shall be
deemed to be conditions to this transaction and shall survive the
consummation of this transaction for a period of twenty-four (24) months
after the Closing Date. Notwithstanding the foregoing, except as provided
below with regard to Section 3.18, all representations, warranties,
covenants and agreements shall survive the Closing Date for forty-eight
(48) months following the Closing Date if such representations, warranties,
covenants and agreements are breached due to fraud or gross negligence.
Notwithstanding the foregoing, the tax obligations set forth in Section
3.18 above shall survive the consummation of this transaction and the
Closing Date for an indefinite period of time.
10.2 Amendment . This Agreement may be amended by the parties hereto
at any time before or after approval of this transaction by the
Shareholders; provided, however, that following approval of this
transaction by the Shareholders, no amendment hereto shall be made that by
law requires the further approval of the Shareholders without obtaining
such further approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of both of the parties hereto.
10.3 Extension; Waiver . At any time prior to the Closing Date,
Capital Reserve and Security National, by action taken by their respective
Boards of Directors, may, to the extent legally allowed, (i) extend the
time for the performance of any of the obligations or other acts of the
other, (ii) waive any inaccuracies in the representations and warranties
made to it contained herein or in any document or instrument delivered
pursuant hereto and (iii) waive compliance with any of the agreements or
conditions for the benefit of it contained herein. Any agreement on the
part of either party hereto to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed by such party.
10.4 Notices . All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) or if sent by
facsimile, confirmation received, to the respective party at the following
addresses and/or facsimile numbers, with the original thereof being mailed
by registered or certified mail, return receipt requested (or at such other
address or facsimile number for the parties hereto as shall be specified by
like notice):
(a) If to Security National, to:
Security National Financial Corporation
5300 South 360 West, Suite 250
Salt Lake City, Utah 84123
Attn: Scott M. Quist, President
Facsimile No.: (801) 265-9882
Telephone No.: (801) 264-1060
With a copy to:
Mackey Price Thompson & Ostler
350 American Plaza II
57 West 200 South
Salt Lake City, Utah 84101-3663
Attn: Randall A. Mackey, Esq.
Facsimile No.: (801) 575-5006
Telephone No.: (801) 575-5000
(b) If to Capital Reserve, to:
Capital Reserve Life Insurance Company
812 Madison Street
P.O. Box 896 Jefferson City, Missouri 65102 Attn:
Tony Hutchinson, Vice President Facsimile No.: (573)
636-3751 Telephone No.: (573) 636-3913
(c) If to Shareholders, to:
Shareholders of Capital Reserve Life Insurance Co.
812 Madison Street
P.O. Box 896 Jefferson City, Missouri 65102 Attn:
Jean Warden Facsimile No.: (573) 636-3751 Telephone
No.: (573) 636-3913
With a copy to:
J. Randy Snodgrass, CPA 1620 Southridge, Suite A
Jefferson City, Missouri 65109 Telephone No.: (573)
635-0754 Facsimile No.: (573) 893-2872
10.5 Interpretation. When a reference is made in this Agreement to Sections
or Exhibits, such references shall be deemed to be to a Section or Exhibit to
this Agreement, unless otherwise indicated. The words "include", "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation". The Table of Contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
10.6 Counterparts. This Agreement may be executed in one or more
counterparts, all of which, when taken together, shall be considered one and the
same agreement, and this Agreement shall become effective when one or more
counterparts have been signed by each of the parties hereto and delivered to the
other parties hereto.
10.7 Entire Agreement. This Agreement and the documents and instruments
attached hereto as Exhibits and all other agreements between the parties hereto
delivered pursuant to this Agreement constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, between the parties hereto
with respect to the subject matter hereof and are not intended to confer upon
any other person or entity any rights or remedies hereunder except as otherwise
expressly provided herein.
10.8 No Transfer. This Agreement and the rights and obligations set forth
herein may not be transferred or assigned by operation of law or otherwise
without the consent of both parties hereto. This Agreement is binding upon and
will inure to the benefit of each party hereto and their respective successors
and permitted assigns.
10.9 Severability. If any provision of this Agreement, or the application
thereof, is for any reason whatsoever and to any extent deemed to be invalid or
unenforceable, the remainder of this Agreement and the application thereof to
other persons, entities or circumstances will be interpreted so as reasonably to
effect the intent of the parties hereto. The parties hereto further agree to
replace any such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provision
hereof.
10.10 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party hereto will be deemed
cumulative with, and not exclusive of, any other remedy conferred hereby or by
law or equity on such party; and the exercise of any one remedy will not
preclude the exercise of any other remedy otherwise available at law or in
equity.
10.11 Further Assurances. The parties hereto agree to cooperate fully with
other parties hereto and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by the other party hereto in order to evidence and reflect the
transactions described herein and contemplated hereby and to carry into effect
the intents and purposes of this Agreement.
10.12 No Third Party Beneficiary Rights. No provision of this Agreement is
intended, nor will any provision hereof be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind whatsoever in any
client, customer, supplier affiliate, stockholder, employee, distributor,
partner of either party hereto or any other person or entity, and all of the
provisions hereof shall be deemed to be personal in nature and between the
parties to this Agreement.
10.13 Mutual Drafting. This Agreement is the joint product of Security
National and Capital Reserve, and each provision hereof has been subject to the
mutual consultation, negotiation and agreement of Security National and Capital
Reserve, and shall not be construed for or against either party hereto.
10.14 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of Utah,
without giving effect to its choice of law principles.
10.15 Jurisdiction and Venue. The federal and state courts within the State
of Utah shall have exclusive jurisdiction to adjudicate any dispute arising
under or out of this Agreement. The parties hereto expressly consent to (i) the
personal jurisdiction of the federal and state courts within the State of Utah
and (ii) service of process being effected upon them by registered or certified
mail. Venue shall be deemed to be with the state and federal courts sitting in
Salt Lake County, State of Utah.
10.16 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby and thereby shall be paid by
the party incurring such costs and expenses. Those costs and expenses of Capital
Reserve will be paid immediately following this transaction by the Shareholders.
10.17 Brokers or Finders. Security National, Capital Reserve, and the
Shareholders each represent, as to itself and, to the extent applicable, its
subsidiaries, that except for Caldwell and Caldwell LLP (who is Security
National's agent/broker and Security National's responsibility to compensate),
no agent, broker, investment banker or other firm or person is, or will be,
entitled to any broker's or finder's fee or any other commission or similar fee
in connection with any of the transactions contemplated by this Agreement.
10.18 Public Announcements. Each party hereto will consult in advance with
the other concerning the timing and content of any announcements, press releases
and public statements concerning this transaction and will not make any such
announcement, press release or public statement without the other's prior
consent; provided, however, that Security National may make any public statement
or announcement concerning this transaction without Capital Reserve's or the
Shareholders' prior consent if, in the opinion of counsel for Security National,
such public statement or announcement is required or advisable to comply with
applicable law.
10.19 Confidentiality. No party hereto shall release, publish, reveal or
disclose, directly or indirectly, any business or technical information of the
other party hereto or any of its Subsidiaries considered by the other party as
"confidential", "secret" or "proprietary" (or words of similar meaning)
including, but not limited to, systems, processes, formulas, recipes, data,
functional specifications, computer programs, blue prints, know-how,
improvements, discoveries, developments, designs, inventions, techniques, new
products, marketing and advertising methods, distribution methods and programs,
supplier agreements, customer or distributor lists, pricing policies, financial
information, projections, forecasts, strategies, budgets or other information
related to its business or its distributors, suppliers or customers
(collectively, "Confidential Material"), except to the party's directors,
officers, employees, financial advisors, legal counsel, independent public
accountants or other agents, advisors or representatives who shall require
access thereto on a "need-to-know" basis for the purpose of the transactions
contemplated by this Agreement and who shall agree in writing to be bound by the
terms of this Section 10.19. The parties hereto agree to take all reasonable
precautions to safeguard the confidentiality of the other party's Confidential
Material and to exercise the same degree of care with respect to such other
party's Confidential Material that the party in possession of such Confidential
Material exercises with respect to its own confidential information. Neither
party hereto shall make or permit to be made, except in furtherance of the
transactions contemplated by this Agreement, any copies, abstracts or summaries
of the other party's Confidential Material. In addition, all Confidential
Material belonging to the other party hereto shall be used solely for the
purpose of the investigation and evaluation contemplated by this Section 10.19,
and shall not be used for any other purpose, including any use that would be to
the detriment of the other party hereto or its Subsidiaries, nor shall such
Confidential Material be used in competition with the other party hereto or its
Subsidiaries. The restrictions on disclosure of information contained in this
Section 10.19 do not extend to any information that (a) is already known to the
receiving party; (b) was or is independently developed by the receiving party;
(c) is now or hereafter becomes available to the public other than as a
consequence of a breach of obligations under this Section 10.19 or (d) is
disclosed to third parties hereto outside of the receiving party in accordance
with terms approved by the disclosing party. Upon written request, the parties
hereto shall return all writings, documents and materials containing
Confidential Material with a letter confirming that all copies, abstracts and
summaries of the Confidential Material have been returned or destroyed. In the
event that either party hereto becomes legally required to disclose the other
party's Confidential Material, it shall provide such other party with prompt
written notice of such requirement prior to such disclosure. In the event that a
protective order or other remedy is not obtained, or such other party waives
compliance with the provisions of this Section 10.19 with respect to the
Confidential Material subject to such requirement, such party agrees to furnish
only that portion of the Confidential Material that it is legally required to
furnish and, where appropriate, agrees to use its best efforts to obtain
assurances that such Confidential Material will be accorded confidential
treatment.
10.20 Attorney's Fees. In the event any legal action or arbitration or
other proceeding is brought for the enforcement of this Agreement or in
connection with any other provisions of this Agreement, the successful and
prevailing party or parties shall be entitled to reasonable attorney's fees and
other costs incurred in such action or proceeding.
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IN WITNESS WHEREOF, Security National, Capital Reserve and the Shareholders
have each caused this Agreement to be signed effective as of the date first
written above.
SECURITY NATIONAL LIFE INSURANCE COMPANY
By: /s/ Scott M. Quist
------------------
Its: President
CAPITAL RESERVE LIFE INSURANCE COMPANY
By: /s/ Jean P. Warden
------------------
Its: President
EXHIBIT INDEX
Exhibit 1 Capital Reserve Disclosure Schedule
Exhibit 2 Security National Disclosure Schedule
ANNEX I
AGREEMENT BY SHAREHOLDERS
OF CAPITAL RESERVE LIFE INSURANCE COMPANY
TO SELL SHARES IN STOCK PURCHASE TRANSACTION
Pursuant to the Stock Purchase Agreement (the "Agreement") by and among
Security National Life Insurance Company, Capital Reserve Life Insurance Company
("Capital Reserve"), and the undersigned shareholders of Capital Reserve, dated
as of October 9, 2007, the undersigned shareholders of Capital Reserve each
hereby joins in the Agreement for the purpose of agreeing to exchange, his or
her shares of Capital Reserve stock for the consideration described in Section
1.2 of the Agreement and for the purpose of making the representations and
warranties described in Articles II, III, IV, VI, IX, and X of the Agreement.
The respective number of shares of Capital Reserve owned by the undersigned
are shown in parenthesis.
This instrument may be executed in any number of counterparts, each of
which shall be deemed an original, provided that all shareholders sign at least
one such counterpart. All such counterparts shall be attached to the Agreement.
Executed as of October 9, 2007.
/s/ Leanne Warden Cardwell /s/ Deborah J. Miller
- -------------------------- ---------------------
Leanne Warden Cardwell (135) Deborah J. Miller (72)
/s/ Kristy J. Neff /s/ Laura Warden Smith
- -------------------- ----------------------
Kristy J. Neff (72) Laura Warden Smith (135)
/s/ David H. Warden /s/ David H. Warden
- ------------------- --------------------
David H. Warden (264) David H. Warden for
/s/ David J. Warden David A. Warden (Minor Child) (72)
David J. Warden (72)
ETHEL M. WARDEN TRUST
By: /s/ Ethel M. Warden
-----------------------
Ethel M. Warden, Trustee (615)
Franklin L. and Priscilla Ann Warden,
Joint Tenants
/s/ Franklin L. Warden By: /s/ Priscilla Ann Warden
- ------------------------- -----------------------------
Franklin L. Warden (738) Priscilla Ann Warden
By: /s/ Franklin L. Warden
--------------------------
Franklin L. Warden (630)
JEAN P. WARDEN TRUST
By: /s/ Jean P. Warden /s/ Scott J. Warden
------------------- --------------------
Jean P. Warden, Trustee (615) Scott J. Warden (114)
/s/ Stephen T. Warden
- ----------------------
Stephen T. Warden (30)
(The total number of shares of Capital Reserve owned by all Shareholders: 3,564)