PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated as of May 1, 1996, is by and among
PROVIDENT AMERICAN CORPORATION, a Pennsylvania corporation ("Purchaser"),
MIDAMERICA MUTUAL LIFE INSURANCE CORPORATION, an Minnesota mutual corporation
("MAM") and MIDAMERICA ENTERPRISES, INC., a South Dakota corporation and a
wholly-owned subsidiary of MAM ("MEI").
A. The parties hereto wish to provide for the terms and conditions upon
which Purchaser will acquire all of the outstanding capital stock of NIA
Corporation, a Colorado corporation ("NIA") from MEI, and two servicemarks owned
by MAM but which are used in connection with the business of NIA.
B. The parties hereto wish to make certain representations, warranties,
covenants and agreements in connection with the transactions contemplated hereby
and also to prescribe various conditions to such transaction.
Accordingly, and in consideration of the representations, warranties, covenants,
agreements and conditions herein contained, the parties hereto agree as follows:
SECTION 1.
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Purchase
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(a) Acquisition of the NIA. Purchaser agrees to purchase from MEI, and
MEI agrees to sell to Purchaser (or its designee), all of the outstanding
capital stock of NIA ("NIA Stock"), in a transaction intended to be taxable for
United States federal and state income tax purposes and with respect to which
the parties agree to make an election under Section 338(h)(10) of the Internal
Revenue Code of 1954 as amended (the "Code").
(b) Acquisition of Servicemark. Purchaser agrees to purchase from JAM,
and MAM agrees to assign to Purchaser, all its right, title and interest in and
to two servicemarks, one a non-stylized version of the term "HealthQuest", and
one a stylized version of such term (the "Servicemarks"). Registration of the
Servicemarks has been applied for with the United States Patent and Trademark
Office ("PTO"), but has not yet been obtained.
(c) Consideration. In exchange for the NIA Stock and the Servicemarks,
Purchaser agrees to (a) issue to MEI fifty thousand (50,000) shares (the
"Acquired shares") of the $.10 par value common stock of Purchaser (herein
"Common Stock") and (b) pay Two Hundred Fifty-Four Thousand Six Hundred
Thirty-Five Dollars ($254,635) by wire transfer on the Closing Date. Of this
consideration the parties agree to allocate $5000.00 to the acquisition of the
Servicemarks.
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(d) Closing. The transactions contemplated hereby are to be effective
as of 12:01 a.m. Eastern daylight savings time May 1, 1996 (the "Effective
Time") irrespective of the date such transactions in fact close. The closing
(the "Closing") shall be held at the offices of Oppenheimer, Wolff &Donnelly or
such other place as the parties may agree, at 9:00 a.m., Central Standard Time
or such other time, and on such date, as upon which the parties may agree, at
which time and place the documents and instruments necessary or appropriate to
effect the transactions contemplated herein will be exchanged by the parties.
SECTION 2.
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Representations and Warranties of MAM and MEI
---------------------------------------------
MAM and MEI hereby represent and warrant to Purchaser as of the date
hereof that, except as set forth in the disclosure schedule of MAM (the "MAM
Disclosure Schedule") provided to Purchaser as contemplated hereby (which MAM
and MEI hereby separately represent and warrant is complete and correct as to
the matters described therein):
(a) Corporate Organization. NIA has a single, wholly-owned subsidiary
named American Brokerage Corporation ("ABC" and collectively with NIA the
"Companies"). Each Company is a corporation duly organized, validly existing and
in good standing under the law of the state of its incorporation, has full
corporate power and authority to carry on and conduct its business and
operations as now being conducted, is duly qualified or licensed to do business
as a foreign corporation in good standing in every other jurisdiction in which
the failure to be so qualified or licensed and in good standing could have a
material adverse effect on such Company, its assets, businesses or prospects.
The MAM Disclosure Schedule includes complete and correct copies of its articles
or certificate of incorporation and bylaws, as presently in effect.
(b) Capitalization. The authorized capital stock of each Company is set
forth on the MAM Disclosure Schedule. The number of shares of capital stock of
each Company issued and outstanding and the number of shares of capital stock of
each Company held in treasury as of the date of this Agreement are set forth on
the MAM Disclosure Schedule. All issued and outstanding shares of capital stock
of NIA are owned beneficially and of record by MEI free of any mortgage, pledge,
security interest, lien, encumbrance, restriction or charge of any kind (herein
a "Lien"), and are duly authorized, validly issued, fully paid, nonassessable
and are without, and were not issued in violation of, any preemptive rights. All
issued and outstanding shares of the capital stock of ABC are owned beneficially
and of record by NIA free of any Lien and are duly authorized, validly issued,
fully paid, nonassessable and are without, and were not issued in violation of,
any preemptive rights. There are not outstanding any other securities of either
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Company, nor options, warrants, conversion privileges or other rights to
purchase or acquire either Company's securities (including its capital stock)
nor any contracts, commitments, understandings, arrangements or restrictions by
which either Company is bound to issue or acquire any of its securities or any
options, warrants, conversion privileges or other rights to purchase or acquire
any of its securities.
(c) Authorization. Each of MAM and MEI has the legal capacity to enter
into this Agreement and to carry out the transactions contemplated herein. All
action required by law, by the articles of incorporation or bylaws of MAM or MEI
or otherwise to authorize the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein have been
taken. This Agreement has been duly and validly executed and delivered by MAM
and MEI. This Agreement is the valid and binding legal obligation of MAM and
MEI, enforceable against them in accordance with its terms.
(d) Non-Contravention. Neither the execution, delivery and performance
of this Agreement nor the consummation of the transactions contemplated herein
will: (i) violate or be in conflict with any provision of the articles of
incorporation or bylaws of MAM, MEI or either Company; or (ii) be in conflict
with, or constitute a default under, or cause or permit the acceleration of the
maturity of, or give rise to any right of termination or cancellation or any
imposition of fees or penalties under, any Consent or Permit (as those terms are
hereinafter defined) or agreement, instrument or other obligation to which MAM,
MEI or, to the knowledge of MAM, either Company is a party or by which any of
their respective properties or assets is bound; or (iii) result in the creation
or imposition of any Lien upon any property or assets of MAM, MEI or to the
knowledge of MAM either Company; or (iv) violate any statute, treaty, law,
judgment, writ, injunction, decision, decree, order, rule, regulation, ordinance
or other similar authoritative matter (herein a "Law") of any foreign, federal,
state, local government or any court, agency or instrumentality of any thereof
(herein an "Authority") applicable to MAM, MEI or to the knowledge of MAM either
Company.
(e) Consents and Approvals. No consent, approval, order or
authorization of or from, or registration, notification, declaration or filing
(herein a "Consent") with any individual or entity, including without limitation
any Authority, is required in connection with the execution, delivery or
performance of this Agreement by MAM or MEI or the consummation by MAM or MEI of
the transactions contemplated herein.
(f) Financial Statements. MAM has furnished to Purchaser the
consolidated financial statements of the Companies for the fiscal year ending
December 31, 1995 (the "Latest NIA Financial Statements"). The Latest NIA
Financial Statements (i) have been prepared to the in accordance with generally
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accepted accounting principles, and (ii) fairly present the assets and
liabilities of the Companies as of the date thereof, and the results of
operations for the period covered thereby.
(g) Litigation. There is no legal, administrative, arbitration, or
other proceeding, suit, claim or action of any nature or investigation, review
or audit of any kind, judgment, decree, decision, injunction, writ or order
(collectively "Claims or Proceedings") pending, or to MAM's knowledge threatened
against either Company or its properties or business, or which questions or
challenges the validity of this Agreement or any action taken or to be taken by
the parties hereto in connection with the transactions contemplated herein.
(h) Insurance. The MAM Disclosure Schedule contains an accurate and
complete list of all policies of property, casualty, liability, workers'
compensation, health, and other forms of insurance owned or held by either
Company, specifying the insurer, the policy number, the term of the coverage
and, in the case of any "claims made" coverage, the same information as to
predecessor policies for the previous five years. All present policies are in
full force and effect and all premiums with respect thereto have been paid,
however, policies in which the Companies participate because they are
subsidiaries of MAM will cease to apply following closing. Neither Company has
been denied any form of insurance and no policy of insurance has been revoked or
rescinded during the past five years, except as described on the MAM Disclosure
Schedule.
(i) Brokers. None of MAM, MEI or either Company or any of its
directors, officers or employees has employed any broker, finder, or financial
advisor or incurred any liability for any brokerage fee or commission, finder's
fee or financial advisory fee, in connection with the transactions contemplated
hereby, nor is there any basis known to MAM for any such fee or commission to be
claimed by any person or entity.
(j) Investment Intent. Without prejudice to Section 9 hereof, MEI is
acquiring the Acquired Shares for investment and not with view to distribution
or resale.
(k) Minimum Stockholder's Equity. As of the Effective Time the
consolidated stockholder's equity of the Companies shall be at least three
hundred fifty thousand dollars ($350,000).
(1) No Known Defaults. MAM and MEI are unaware of any material defaults
by NIA under the Policy Administrative Agreements or the Management Services
Agreements to which it is party with each of them or by ABC under the Marketing
Agreements or the Management Services Agreements to which it is party with each
of them, other than such defaults by NIA as may be associated with its use of
funds in trust accounts for working capital purposes.
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SECTION 3.
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Representations and Warranties of Purchaser
-------------------------------------------
Purchaser represents and warrants to MAM and MEI as of the date hereof
that:
(a) Corporate Organization. Purchaser and each company controlled by
it, including Provident Indemnity Life Insurance Company ("Provident Life") is a
corporation duly organized, validly existing and in good standing under the law
of the state of its incorporation, has full corporate power and authority to
carry on and conduct its business and operations as now being conducted, is duly
qualified or licensed to do business as a foreign corporation in good standing
in every other jurisdiction in which the failure to be so qualified or licensed
and in good standing could have a material adverse effect on the Purchaser, its
assets, businesses or prospects.
(b) Capitalization. The authorized capital stock of Purchaser consists
of 25,000,000 shares of common stock, $.10 par value, of which 8,614,831 shares
have been issued and are outstanding, 2,500,000 shares of Class A common voting
stock, $.10 par value, none of which is outstanding and 5,000,000 shares of
preferred stock, $1.00 par value, of which 580,250 shares of Series A and
425,250 shares of Series B Cumulative Convertible Preferred Stock are issued and
outstanding. No shares of capital stock of Purchaser are held in treasury. There
are outstanding various agreements, arrangements, options, warrants and other
rights or commitments relating to the issuance, sale, purchase or redemption of
shares of the capital stock of Purchaser. All issued and outstanding shares of
the capital stock of Provident Life are owned beneficially and of record by
Purchaser free of any Lien and are duly authorized, validly issued, fully paid,
nonassessable and are without, and were not issued in violation of, any
preemptive rights.
(c) Authorization. Purchaser has the legal capacity to enter into this
Agreement and to carry out the transactions contemplated herein. All action
required by law, Purchaser's articles of incorporation and bylaws and otherwise
to authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been taken. This
Agreement has been duly and validly executed and delivered by Purchaser. This
Agreement is the valid and binding legal obligations of Purchaser, enforceable
against it in accordance with its terms.
(d) Non-Contravention. Neither the execution, delivery and performance
of this Agreement nor the consummation of the transactions contemplated herein
will: (i) violate or be in conflict with any provision of the articles of
incorporation or bylaws of Purchaser; or (ii) be in conflict with, or constitute
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a default under, or cause or permit the acceleration of the maturity of, or give
rise to any right of termination or cancellation or any imposition of fees or
penalties under, any Consent or Permit or agreement, instrument or other
obligation to which Purchaser is a party or by which any of their respective
properties or assets is bound; or (iii) result in the creation or imposition of
any Lien upon any property or assets of Purchaser; or (iv) violate Law of any
Authority applicable to Purchaser.
(e) Consents and Approvals. No Consent with any individual or entity,
including without limitation any Authority, is required in connection with the
execution, delivery or performance of this Agreement by Purchaser or the
consummation by Purchaser of the transactions contemplated herein.
(f) Financial Statements. Purchaser has furnished to MAM its audited
consolidated financial statement for the fiscal years ending December 31, 1995
(the "Latest Purchaser Balance Sheet"). Such Financial Statement (i) has been
prepared in accordance with generally accepted accounting principles
consistently applied, and (ii) fairly presents the assets and liabilities of the
Purchaser as of the date thereof, and the results of operations for the period
covered thereby.
(g) Brokers. Neither Purchaser nor any of its directors, officers or
employees has employed any broker, finder, or financial advisor or incurred any
liability for any brokerage fee or commission, finder's fee or financial
advisory fee, in connection with the transactions contemplated hereby, nor is
there any basis known to Purchaser for any such fee or commission to be claimed
by any person or entity.
SECTION 4.
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Covenants
---------
(a) Confidentiality. Each of the parties hereto agrees that it will not
use, or permit any of its affiliates or their respective agents or employees to
use, any of the information relating to any other party hereto furnished to it
in connection with the transactions contemplated herein which is not in the
public domain ("Information") in a manner or for a purpose detrimental to such
other party or otherwise than in connection with the transaction, and that they
will maintain the confidentiality of and not disclose the Information to any
person or entity, other than their respective affiliates, directors, officers,
employees, and authorized representatives and agents who are similarly bound to
maintain such confidentiality, except as may be required by judicial or
administrative process or, in the opinion of such party's regular counsel, by
other requirements of Law. Each party hereto also agrees to promptly return to
the party from whom originally received all original and duplicate copies of
written materials containing Information should the transactions contemplated
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herein not occur. A party hereto shall be deemed to have satisfied its
obligations to hold the Information confidential if it exercises the same care
as it takes with respect to its own similar information. Each party hereto
agrees that it will not (nor will it permit any of its affiliates or their
respective agents or employees to), intentionally characterize any other party's
(or its affiliates') rationale or business purpose for entering into this
Agreement or consummating the transactions contemplated hereby in a manner which
causes economic loss to, or damage to the reputation of, another party.
(b) Filings; Consents; Removal of Objections. Subject to the terms and
conditions herein provided, each party hereto shall, where reasonably within its
control, use its commercially reasonable efforts to take or cause to be taken
all actions necessary, proper or advisable under applicable Law to consummate
and make effective, as soon as reasonably practicable, the transactions
contemplated hereby, including without limitation obtaining all Consents of any
person or entity required in connection with the consummation of the
transactions contemplated herein. Without limiting the foregoing, MAM agrees to
use its good faith best efforts to ensure that any redomestication of MidAmerica
Life Insurance Company ("MALICO") to Minnesota does not result in the Minnesota
Department of Commerce ordering or otherwise causing the cancellation of the
fronting arrangements provided for in that certain Reinsurance and Assumption
Agreement dated as of May 1, 1996 among MAM, MALICO and Provident Life (the
"Reinsurance Agreement").
(c) Public Announcements. None of the parties hereto shall make any
public announcement with respect to the transactions contemplated herein without
the prior written consent of the other parties, which consent shall not be
unreasonably withheld or delayed; provided, however, that any of the parties
hereto may at any time make any announcements which are required by applicable
Law so long as the party so required to make an announcement promptly upon
learning of such requirement notifies the other parties of such requirement and
discusses with the other parties in good faith the exact proposed wording of any
such announcement.
(d) Guaranty of Payment and Performance. Subject only to the Closing
occurring, Provident hereby guarantees the full and timely payment and
performance of any and all obligations of NIA and ABC, contractual or otherwise
(including any arising in relation to any trust or other account controlled by
either of them) arising after the Effective Time, to MAM or any of its
affiliates, or which have been guaranteed by MAM or any of its affiliates,
including (i) the obligations of NIA under that certain promissory note in an
original principal amount of $150,000, (ii) all obligations of NIA to MAM or
MALICO as a third party administrator therefore under certain Policy
Administration Agreements, and (iii) the obligations of NIA under the lease of
its facility. In connection with the foregoing, Provident hereby agrees to
advance, on May 10, 1996, to trust accounts held by NIA for the purpose of
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depositing premium received with respect to policies issued by any carrier for
which it acts as an administrator amounts by which such accounts may be
deficient (including with respect to the accounts of MAM and MALICO an aggregate
amount of Two Hundred Forty-Five Thousand Three Hundred and Sixty-Five Dollars
($245,365), being the aggregate amount by which the parties agree such a deficit
exists with respect to them), and to cause NIA to pay to MAM, MALICO and any
such other carriers any amounts due them in connection therewith (being in the
case of MAM and MALICO collectively the amount of Five Hundred Seventy-Two
Thousand Eight Hundred Nineteen Dollars ($572,819), net of any expense
authorized to be paid by NIA on behalf of MAM or MALICO in the ordinary course
of its business consistent with past practice, and plus or minus, as the case
may be, the proration settlement provided for in Section 4 of the Reinsurance
Agreement).
SECTION 5.
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Conditions to Obligations of Purchaser
--------------------------------------
Notwithstanding any other provision of this Agreement to the contrary,
the obligation of Purchaser to effect the transactions contemplated herein shall
be subject to the satisfaction at or prior to the Closing of each of the
following conditions:
(a) Representations and Warranties True. The representations and
warranties of MAM contained in this Agreement, including without limitation in
the MAM Disclosure Schedule, shall be in all material respects true, complete
and accurate as of the date when made and at and as of the Closing as though
such representations and warranties were made at and as of such time, except for
changes specifically permitted or contemplated by this Agreement, and except
insofar as the representations and warranties relate expressly and solely to a
particular date or period, in which case they shall be true and correct in all
material respects at the Closing with respect to such date or period.
(b) Performance. MAM shall have performed and complied in all material
respects with all agreements, covenants, obligations and conditions required by
this Agreement to be performed or complied with by it on or prior to the
Closing.
(c) Required Approvals and Consents. All Consents required of MAM or
any of its affiliates to consummate the transactions contemplated hereby shall
have been delivered, made or obtained, and Purchaser shall have received copies
thereof.
(d) No Proceeding or Litigation. No suit, action, investigation,
inquiry or other proceeding by any Authority or other person or entity shall
have been instituted or threatened which questions the validity or legality of
the transactions contemplated hereby or which, if successfully asserted, would
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individually or in the aggregate, otherwise have a material adverse effect on
the conduct of the business of either Company.
(e) Opinion of MAM Counsel. Purchaser shall have received an opinion of
MAM counsel, dated the closing date, in form and substance reasonably
satisfactory to it.
(f) ServiceMark Assignment. Purchaser shall have received an assignment
of the Servicemarks in form reasonably satisfactory to it.
(g) Certain Other Agreements. The Policy Administrative Services
Agreement between MALICO and NIA effective January 1, 1995 shall have been
assigned to Provident Life and the Policy Administration Agreement between MAM
and NIA effective January 1, 1994 shall have been amended. The Management
Services Agreements (a) between MALICO and ABC, (b) between MALICO and NIA, (c)
between MAM and ABC, and (d) between MALICO and NIA, each effective as of July
1, 1994 (the "MSAs"), shall all have been terminated. The Marketing Agreements
(i) between MALICO and ABC effective as of January 1, 1995 and (ii) between MAM
and ABC dated as of January 1, 1994, shall have been amended. ABC and NIA on the
one hand, and MAM, MALICO and MEI on the other hand, shall entered into a mutual
release. All the foregoing shall be effective as of the Effective Time and shall
be in form reasonably satisfactory to Purchaser.
(h) Resignation and Release. The directors of each Company, and Norman
Storbakken and Eric Netteberg as officers of each Company, shall have duly
executed and delivered to Purchaser, in form reasonably satisfactory to it,
their respective resignations from such Company.
(i) Reinsurance Agreement. MALICO and MAM shall have each duly executed
and delivered the Reinsurance Agreement, which shall be in form and substance
satisfactory to Purchaser, and Consumer Benefits of America, a Missouri
not-for-profit corporation, shall have expressly consented to the transactions
contemplated thereby on terms reasonably satisfactory to Purchaser.
(j) Delivery of Shares. MEI shall have delivered to Purchaser
certificates representing all the issued and outstanding share capital of NIA
together with a duly executed stock power endorsed in blank.
SECTION 6.
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Conditions to Obligations of MAM and MEI
----------------------------------------
Notwithstanding anything in this Agreement to the contrary, the
obligation of MAM and MEI to effect the transactions contemplated herein shall
be subject to the satisfaction at or prior to the Closing of each of the
following conditions:
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(a) Representations and Warranties True. The representations and
warranties of Purchaser contained in this Agreement shall be in all material
respects true, complete and accurate as of the date when made and at and as of
the Closing as though such representations and warranties were made at and as of
such time, except for changes specifically permitted or contemplated by this
Agreement, and except insofar as the representations and warranties relate
expressly and solely to a particular date or period, in which case they shall be
true and correct in all material respects at the Closing with respect to such
date or period.
(b) Performance. Purchaser shall have performed and complied in all
material respects with all agreements, covenants, obligations and conditions
required by this Agreement to be performed or complied with by it on or prior to
the Closing.
(c) Required Approvals and Consents. All Consents required of Purchaser
or its affiliates to consummate the transactions contemplated hereby shall have
been delivered, made or obtained, and MAM shall have received copies thereof.
(d) No Proceeding or Litigation. No suit, action, investigation,
inquiry or other proceeding by any Authority or other person or entity shall
have been instituted or threatened which questions the validity or legality of
the transactions contemplated hereby or which, if successfully asserted, would
individually or in the aggregate, otherwise have a material adverse effect on
Purchaser or Provident Life.
(e) Opinion of Purchaser Counsel. MAM shall have received an opinion of
Purchaser counsel, dated the closing date, in form and substance reasonably
satisfactory to it.
(f) Receipt. MAM and MEI shall have received the consideration
contemplated by Section l(c) and, if then due, the amount payable to them
pursuant to the last sentence of Section 4(d).
(g) Certain Other Agreements. The Policy Administrative Services
Agreement between MALICO and NIA effective January 1, 1995 shall have been
assigned to Provident Life and the Policy Administration Agreement between MAM
and NIA effective January 1, 1994 shall have been amended. The Management
Services Agreements (a) between MALICO and ABC, (b) between MALICO and NIA, (c)
between MAM and ABC, and (d) between MALICO and NIA, each effective as of July
1, 1994 (the "MSAs"), shall all have been terminated. The Marketing Agreements
(i) between MALICO and ABC effective as of January 1, 1995 and (ii) between MAM
and ABC dated as of January 1, 1994, shall have been amended. ABC and NIA on the
one hand, and MAM, MALICO and MEI on the other hand, shall entered into a mutual
release. All the foregoing shall be effective as of the Effective Time and shall
be in form reasonably satisfactory to MAM and MEI.
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(h) Reinsurance Agreement. Provident Life shall have duly executed and
delivered to MAM and MALICO the Reinsurance Agreement, which shall be in form
and substance satisfactory to MAM, and Consumer Benefits of America, a Missouri
not-for-profit corporation, shall have expressly consented to the transactions
contemplated thereby on terms reasonably satisfactory to MAM.
(i) Resignations. James Bowles and David Ward shall each have duly
executed and delivered to MAM, in a form satisfactory to it, their respective
resignations in all capacities from MAM and all its subsidiaries.
SECTION 7.
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Termination and Abandonment
---------------------------
(a) Methods of Termination. This Agreement may be terminated and the
transactions contemplated herein may be abandoned at any time but not later than
the Closing:
(i) By mutual written consent of MAM and Purchaser; or
(ii) By Purchaser on or after the Termination Date, if any of
the conditions provided for in Section 5 shall not have been satisfied
or waived in writing by Purchaser prior to such date; or
(iii) By MAM on or after the Termination Date, if any of the
conditions provided for in Section 6 shall not have been satisfied or
waived in writing by MAM prior to such date.
(b) Procedure Upon Termination. In the event of termination and
abandonment pursuant to subsection 7(a), written notice thereof shall forthwith
be given to the other party or parties, and the provisions of this Agreement
shall terminate, and the transactions contemplated herein shall be abandoned,
without further action by any party hereto. If this Agreement is terminated as
provided herein: (i) each party will, upon request, redeliver all documents,
work papers and other material of any other party (and all copies thereof)
relating to the transactions contemplated herein, whether so obtained before or
after the execution hereof, to the party furnishing the same; (ii) the
confidentiality obligations of subsection 4(a) shall continue to be applicable.
No such termination shall relieve any party hereto of any liability arising from
breach of its obligations hereunder arising prior to such termination.
SECTION 8.
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Survival and Indemnification
----------------------------
(a) Survival. The representations, warranties and covenants of each of
the parties hereto shall survive the Closing.
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(b) Indemnification by Purchaser. Purchaser agrees to indemnify MAM and
MEI from and against any and all claims, loss, liability, cost, expense or
damage (collectively "Damage") suffered or incurred by it or MEI by reason of
(i) any untrue representation of, or breach of warranty by, Purchaser in this
Agreement, provided, however, that no claim for indemnity may be made pursuant
to this clause (i): (A) unless and until and then only to the extent that the
aggregate Damage exceeds $25,000, and (B) after May 1, 1998; and (ii) any
nonfulfillment of any covenant, agreement or undertaking of Purchaser in this
Agreement which by its terms is to remain in effect after the Closing and has
not been specifically waived in writing at the Closing by the party or parties
hereof entitled to the benefits thereof.
(c) Indemnification by MAM and MEI. MAM and MEI agree to indemnify and
hold the Purchaser harmless from and against any and all Damage suffered or
incurred by it by reason of (i) any untrue representation of, or breach of
warranty by MAM or MEI in this Agreement, provided, however, that no claim for
indemnity may be made pursuant to this clause (i): (A) unless and until and then
only to the extent that the aggregate Damage exceeds $25,000 and (B) after May
1, 1998, or (ii) any nonfulfillment of any covenant, agreement or undertaking of
MAM or MEI in this Agreement which by its terms is to remain in effect after the
Closing and has not been specifically waived in writing at the Closing by the
party or parties hereto entitled to the benefits thereof.
(d) Claims for Indemnification. The parties intend that all claims for
indemnification or payment hereunder be made as promptly as practicable by the
party seeking indemnification or payment (the "Indemnified Party"). Whenever any
claim for such indemnification or payment shall arise hereunder (a"claim") the
Indemnified Party shall promptly notify in writing the party from whom
indemnification or payment is sought (the "Indemnifying Party") of the claim
and, when known, the facts constituting the basis for such claim (a "Claim
Notice"). In the case of any Claim resulting from or in connection with any
claim or legal proceedings of a third party (a "Third Party Claim"), the Claim
Notice shall also specify, if known, the amount or an estimate of the amount of
the liability arising therefrom. If the Indemnifying Party is of the opinion
that the Indemnified Party is not entitled to indemnification or payment, or is
not entitled to indemnification in the amount stated in the Claim Notice, it
shall promptly deliver a written objection to such claim and written
specifications in reasonable detail of the aspects or details objected to, and
the grounds for such objection. Payment for any claim for indemnification shall
become due if and when the Indemnifying Party shall fail to timely object to the
Claim, shall admit the Claim in writing or in the event of an arbitral finding
in favor of the Indemnified Party.
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(e) Right of Recovery. In the event that any party (or its affiliates)
is entitled to recover any sum (whether by payment, discount, credit or
otherwise) from any third party in respect of any matter for which a Claim for
could be or has been made against the other party, it shall promptly inform such
other party of such entitlement and shall take such steps as shall have been
reasonably requested by such other party both before and after making any Claim
in relation thereto to recover, at such other party's expense, such sum (keeping
such other party fully informed of the progress of any action taken). Any sum
recovered will reduce the amount of the Claim; in the event of the recovery
being delayed until after the Claim has been satisfied, the party paying the
Claim shall account to the other party in respect of any amount so recovered
(after deduction of all reasonable costs and expenses of the recovery) up to the
amount of the Claim. The failure to comply with this subsection shall not
prejudice the right of a party to pursue any Claim.
(f) Matters Involving Third Parties. In connection with any Third Party
Claim, the Indemnifying Party will have the right to defend the Indemnified
Party against such Third Party Claim with counsel of its choice reasonably
satisfactory to the Indemnified Party provided that:
(i) the Indemnifying Party provides the Indemnified Party with
evidence reasonably acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources to defend against
the Third Party Claim and fulfill its indemnification obligations
hereunder,
A. the Third Party Claim involves only money damages and
does not seek an injunction or other equitable relief,
B. settlement of, or an adverse judgment with respect to, the
Third Party Claim is not, in the good faith judgment of
the Indemnified Party, likely to establish a precedential
custom or practice materially adverse to the continuing
business interests of the Indemnified Party, and
C. the Indemnifying Party conducts the defense of the Third
Party Claim actively and diligently.
(ii) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with subsection:
A. the Indemnified Party may retain separate co-counsel at
its sole cost and expense and participate in the defense
of the Third Party Claim, and
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B. the Indemnifying Party will determine whether to consent
to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim subject to the
prior written consent of the Indemnified Party (not to be
withheld unreasonably).
(iii) In the event any of the conditions in clause (i) above
is or becomes unsatisfied, however,
A. the Indemnified Party may defend against, and consent to
the entry of any judgment or enter into any settlement
with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified
Party need not consult with, or obtain any consent from,
any Indemnifying Party in connection therewith),
B. the Indemnifying Parties will reimburse the Indemnified
Party promptly and periodically for the reasonable costs
of defending against the Third Party Claim (including
reasonable attorneys' fees and expenses), and
C. the Indemnifying Parties will remain responsible for any
Damages the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused
by the Third Party Claim to the fullest extent provided
in this Section.
SECTION 9.
----------
Stock Transfers, Registration and Added Consideration
-----------------------------------------------------
(a) Requirements for Transfer of Purchaser Common Stock. Except for the
sale of Acquired Shares pursuant to a public offering, no Acquired Shares shall
be transferred by MEI until, unless waived by Purchaser, a written opinion
reasonably satisfactory to Purchaser in form and substance from counsel
reasonably satisfactory to Purchaser to the effect that the holder may transfer
such Acquired Shares without registration under the Securities Act of 1933 (the
"Securities Act") or any applicable state securities or blue sky laws.
14
(b) Common Stock Legend. Each certificate representing Acquired Shares
will be imprinted with legends in substantially the following form:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under any state securities or blue sky laws and may not be
transferred in the absence of such registration or any
exception therefrom under such Act or under such state
securities or blue sky laws.
(c) Demand Registrations.
(i) In the event the Acquired Shares have not then
previously been registered either by Purchaser of its
own volition or pursuant to Section 9(d), then upon the
written request of MEI or any permitted (pursuant to
Section 9(a) hereof) transferee of all the Acquired
Shares (a "Requesting Holder") given at anytime on or
after May 1, 1997, the Purchaser, to the extent
permitted by law and subject to the terms hereof, shall
register the Acquired Shares pursuant to an effective
registration statement (a "Registration") under the
Securities Act. Any such Registration pursuant to this
Section 9(c) is hereinafter referred to as a "Demand
Registration."
(ii) If a Demand Registration is an underwritten offering,
no securities other than the Acquired Shares shall be
included among the securities covered by such Demand
Registration unless (i) the managing underwriters in
such Demand Registration advise the Purchaser and the
Requesting Holder in writing that in their opinion the
inclusion of the securities requested to be included in
such Demand Registration by other persons would not
materially adversely affect such offering.
(iii) Notwithstanding the foregoing, Purchaser shall have the
right to delay any such Demand Registration for up to
twenty (20) business days if Purchaser's counsel has
advised Purchaser (which advice shall be given as soon
as practicable) that certain material information (the
"Required Information") must be included in the
registration statement and Purchaser's Board of
Directors has in good faith, in view of pending
15
negotiations or other developments regarding Purchaser
not otherwise required to be made public, determined
that disclosure of the Required Information is not in
the best interest of Purchaser. Under no circumstances
will one or more delays pursuant to this clause extend
beyond thirty (30) calendar days from the date
Purchaser receives a Requesting Holder's request for a
Demand Registration. The Company agrees to use
reasonable commercial efforts to resolve any pending
negotiations or other developments referred to in this
clause as soon as reasonably practicable. Notice of
Purchaser's postponement of a Demand Registration
pursuant to this Clause shall be given to the
Requesting Holder within ten (10) business days of the
receipt of notice requesting a Demand Registration.
(d) Other Registrations. If the Purchaser, at any time when the
Acquired Shares have not been previously registered either through Purchaser of
its own volition (it being agreed that Purchaser has the right to register the
Acquired Shares, on any appropriate form, including a Form S-3, if it so
desires) or pursuant to Section 9(c), proposes to register any shares of its
Common Stock under the Securities Act, whether for its own account or for others
(other than a registration statement on Form S-4 or S-8 or any successor or
similar forms), and the registration form to be used may be used for a offering
of Common Stock (an "Other Registration") and at the time thereof MEI or any
permitted (pursuant to Section 9(a) hereof) transferee thereof (herein a
"Holder") continues to hold any Acquired Shares which have not then previously
been the subject of a Registration, the Purchaser will give written notice of
such determination to the Holder, not less than ten (10) business days prior to
the projected filing of a Registration statement with the Securities Exchange
Commission (the "Commission"), and Purchaser, to the extent permitted by law,
shall include in such Registration all Acquired Shares held thereby.
(e) Registration Procedures. If and whenever the Purchaser effects a
Registration pursuant to the provisions of Sections 9(c) or (d) or otherwise
determines to effect of its own volition a Registration which covers the
Acquired Shares, Purchaser will as expeditiously as reasonably possible:
(i) prepare and file with the Commission a registration
statement on the appropriate form with respect to the shares proposed
to be registered and use its reasonable commercial efforts to cause
such registration statement to become effective (provided that at least
fifteen (15) business days before filing a registration statement or
prospectus or
16
any amendments or supplements thereto, Purchaser shall furnish to the
counsel selected by the Requesting Holder or Holder (the term "Holder"
as used in the Sections (e), (f), (g) and (j) to include both
Requesting Holders and Holders as defined) copies of all such documents
proposed to be filed, which documents shall be subject to the prior
review of such counsel reasonably prior to such filing);
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of the lesser of sixty (60) calendar
days or the completion of the plan of distribution described in such
prospectus and completion of the plan of distribution described in such
prospectus and comply with the provisions of the Securities Act with
respect to the disposition of all shares covered by such registration
statement during such period in accordance with the intended methods of
disposition set forth in such registration statement;
(iii) furnish to the Holder such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as the Holder may
reasonably request in order to facilitate the disposition of the
Acquired Shares;
(iv) use its reasonable commercial efforts to register or qualify
the Acquired Shares under such other securities or blue sky laws of
such jurisdictions as the Holder reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the Holder to consummate the disposition of the Acquired Shares
in such jurisdictions (provided that Purchaser will not be required to
(i) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this subsection, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction, if in the opinion
of counsel reasonably acceptable to the Holder, any of such actions in
this clause (iv) would occur or result);
(v) notify the Holder, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event or the receipt of any information as a result of
which the prospectus included in such registration statement contains
an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading, and prepare a
17
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such shares of Common Stock, such
prospectus will not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements therein not
misleading;
(vi) enter into such customary agreements (including, unless the
Holder shall designate to the contrary in writing, underwriting
agreements in customary form) and use its reasonable best efforts to
take all such other actions in order to expedite or facilitate the
disposition of the Acquired Shares;
(vii) comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of the Purchaser's
first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11 (a) of the Securities Act and Rule 158
thereunder;
(viii) permit the Holder to participate in the preparation of
such registration statement and to require the insertion therein of
written material concerning the Holder (and any person included
therein) and the intended method of distribution, furnished to
Purchaser in writing, which in the reasonable judgment of the Holder
and its counsel should be included;
(ix) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any shares of Common Stock included in
such registration statement for sale in any jurisdiction, use its
reasonable best efforts to promptly obtain the withdrawal of such
order;
(x) cause, subject to applicable law and regulations, the
Acquired Shares to be listed on each securities exchange on which
shares of Purchaser Common Stock are then listed and, if not so listed,
to be listed on the NASD automated quotation system; and
(xi) use its best efforts to deliver an opinion of counsel to the
Purchaser and a cold comfort letter from Purchaser's independent public
accountants each in customary form and covering such matters of the
type customarily covered by such opinions and letters in an
underwritten offering.
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Any Registration which covers the Acquired Shares, whether effected pursuant to
Sections 9(c) or (d) hereof or otherwise, shall remain effective for a period of
not less than six (6) months.
(f) Registration Expenses. All expenses to Purchaser or the Holder
(including reasonable attorneys fees but excluding the underwriting fees,
commission and other costs of any underwriter, broker or other person through
which the Acquired Shares are sold (collectively "Commissions), in connection
with any Registration in which any Acquired Shares are included will be paid by
Purchaser ("Registration Expenses"); provided that the Holder shall pay to
Purchaser to help defray such expense an amount equal to $5,000, payment to be
made promptly following demand made not more than ten (10) days prior to the
date such expense is incurred. In addition, Purchaser will pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, and the expense of any liability
insurance.
(g) Indemnification.
(i) Purchaser agrees to indemnify, to the extent permitted by
law, the Holder, its officers and directors, each person who
controls the Holder (within the meaning of the Securities Act)
and each underwriter for any Registration against all Damages
caused by any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by
or contained in any information furnished in writing to Purchaser
by or on behalf of the Holder expressly for use therein or arises
out of such the Holder's failure to deliver a copy of the final
prospectus to the person asserting such claim or loss at or prior
to the written confirmation of the sale of Acquired Shares by the
Holder to such person, provided the untrue statement or omission
was corrected in the final prospectus and the Purchaser furnished
such person with sufficient copies of the final prospectus for
delivery to such person.
(ii) Each Holder, by availing itself of registration pursuant
to the terms hereof, agrees to indemnify the Purchaser, its
directors and officers, each person who controls the Purchaser
(within the meaning of the Securities Act) and each underwriter
for any Registration against any Damages resulting from any
untrue or alleged untrue statement
19
of material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make
the statements therein not misleading, but only if, and to the
extent that, such statement or omission was in reliance upon and
in conformity with written information furnished to the Purchaser
by or on behalf of such Holder specifically for use in the
preparation of such Registration statement.
(iii) Any person entitled to indemnification hereunder will:
A. give prompt written notice to the indemnifying party of
any claim with respect to which it seeks
indemnification and
B. unless in such indemnified party's reasonable
judgment a conflict of interest between such
indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party.
If such defense is assumed, the indemnifying party
will not be subject to any liability for any
settlement made by the indemnified party without its
consent (but such consent will not be reasonably
withheld).
(iv) The indemnification provided for under this Agreement
will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or
any officer, director or controlling person of such indemnified
party and will survive the transfer of the Acquired Shares.
(v) In the event the indemnification provided for under this
Agreement is unavailable for any reason other than the exceptions
to indemnification contained herein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified
party as a result of such Damages in such proportion as is
appropriate to reflect the relative fault of the indemnifying
party on one hand and the indemnified party on the other hand in
connection with the statements or omissions that resulted in such
Damages, as well as any other relevant equitable considerations.
Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the
20
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(h) Selection of Underwriters. The Purchaser will have the right to
select the investment banker(s) and manager(s) to administer the offering
pursuant to any Registration.
(i) SEC Filings; Public Information. So long as MAM or its affiliates
holds unregistered Acquired Shares, the Purchaser shall use commercially
reasonable efforts to file on a timely basis all reports required to be filed
pursuant to the Securities Exchange Act of 1934.
(j) Additional Shares. In the event that the Acquired Shares are sold
by the Holder within six (6) months of the time a Registration statement filed
pursuant to Section 9(c) or 9(d) hereof becomes effective, and the Holder of the
Acquired Shares does not receive in such sale a price per share, net of
Commissions, of at least $6.65 per share (the "Guaranteed Net Price Per Share"),
then the Purchaser will promptly following the demand of the Holder issue to
such Holder such number of additional shares of the common stock of Purchaser
(the "Additional Shares"), which will also be covered by such Registration
statement, as shall be equal to the result of dividing (i) fifty thousand
(50,000) multiplied by the difference between the (A) Guaranteed Net Price Per
Share minus (B) the difference between ninety five percent (95%) of the gross
price per Acquired Share at which the Holder actually so effects the sale of the
Acquired Shares less actual Commissions which will be due on such sale to the
extent in excess of five percent (5%) (the "Actual Net Price Per Share") by (ii)
the Actual Net Price Per Share. For the avoidance of doubt, no Holder shall be
entitled to any additional shares pursuant to this Section unless it sells the
Acquired Shares within six (6) months of the date the Registration statement
covering the Acquired Shares becomes effective. A Holder shall demand the
issuance of any additional shares to which it is entitled pursuant to this
Section within a reasonable time following the sale of the Acquired Shares.
SECTION 10.
-----------
Miscellaneous Provisions.
-------------------------
(a) Expenses. Each of the parties hereto shall bear its own costs, fees
and expenses in connection with the negotiation, preparation, execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, including without limitation fees, commissions
and expenses payable to brokers, finders, investment bankers, consultants,
exchange or
21
transfer agents, attorneys, accountants and other professionals, whether or not
the transactions contemplated herein is consummated, except as may be
contemplated by Section 9 hereof.
(b) Amendment and Modification. Subject to applicable Law, this
Agreement may be amended or modified by the parties hereto at any time prior to
the Closing with respect to any of the terms contained herein; provided,
however, that all such amendments and modifications must be in writing duly
executed by the parties hereto.
(c) Waiver of Compliance; Consents. Any failure of a party to comply
with any obligation, covenant, agreement or condition herein may be expressly
waived in writing by the party entitled hereby to such compliance, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. No single or partial exercise
of a right or remedy shall preclude any other or further exercise thereof or of
any other right or remedy hereunder. Whenever this Agreement requires or permits
the consent by or on behalf of a party, such consent shall be given in writing
in the same manner as for waivers of compliance.
(d) No Third Party Beneficiaries. Nothing in this Agreement shall
entitle any person or entity (other than a party hereto and his, her or its
respective successors and assigns permitted hereby) to any claim, cause of
action, remedy or right of any kind.
(e) Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be made in writing and shall be deemed to
have been duly given and effective: (i) on the date of delivery, if delivered
personally; (ii) on the earlier of the fourth (4th) day after mailing or the
date of the return receipt acknowledgement, if mailed, postage prepaid, by
certified or registered mail, return receipt requested; or (iii) on the date of
transmission, if sent by facsimile, telecopy, telegraph, telex or other similar
telegraphic communications equipment:
If to Purchaser:
To: Provident American Corporation
2500 DeKalb Pike
Norristown, PA 19404-0511
Attn: Mr. Alvin H. Clemens
Fax: 610-279-1486
22
With a copy to:
Butera Beausang Cohen & Brennan
630 Freedom Business Center, Suite 212
King of Prussia, Pa. 19406
Attn: Michael F. Beausang, Jr.
Fax: 610-265-7205
and to:
NIA Corporation
1620 Kipling
Lakewood, Colorado 80215
Attn: James O. Bowles
Fax: 303-232-4758
If to MAM or MEI:
To: MidAmerica Mutual Life Insurance Company
1801 West County Road B
Roseville, MN 55113
Attn: General Counsel
Fax: 612-628-1100
With a copy to:
Oppenheimer Wolff & Donnelly
First Bank Building
Suite 1700
St. Paul, MN 55101
Attn: Dennis Whelpley
Fax: 612-223-2596, and
or to such other person or address as a party shall furnish to the other parties
hereto in writing in accordance with this subsection.
(f) Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned (whether voluntarily, involuntarily, by operation of law or
otherwise) by any of the parties hereto without the prior written consent of the
other parties.
(g) Governing Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
internal substantive laws of the State of
23
Minnesota (without regard to the laws of conflict that might otherwise apply) as
to all matters, including without limitation matters of validity, construction,
effect, performance and remedies.
(h) Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(i) Headings. The table of contents and the headings of the sections
and subsections of this Agreement are inserted for convenience only and shall
not constitute a part hereof.
(j) Entire Agreement. The MAM Disclosure Schedule and the exhibits and
other writings referred to in this Agreement or in the MAM Disclosure Schedule
or any such exhibit or other writing are part of this Agreement, together they
embody the entire agreement and understanding of the parties hereto in respect
of the transactions contemplated by this Agreement and together they are
referred to as "this Agreement" or the "Agreement". There are no restrictions,
promises, warranties, agreements, covenants or undertakings, other than those
expressly set forth or referred to in this Agreement. This Agreement supersedes
all prior agreements and understandings between the parties with respect to the
transaction or transactions contemplated by this Agreement.
(k) Informal Dispute Resolution. If there shall be any dispute,
controversy or claim ("Dispute"), between the MAM or its affiliates or Purchaser
and its affiliates arising out of, relating to, or connected with this
Agreement, the negotiation thereof or the breach or invalidity thereof, or the
provisions contained therein or omitted therefrom, the parties shall use their
best endeavors to resolve the matter on an amicable basis and in a manner fair
and equitable to the parties hereto. If one party notifies the other party that
a Dispute has arisen and the parties are unable to resolve such Dispute within a
period of fifteen (15) days from such notice, then the matter shall be referred
to the Chief Executive Officer of MAM and Purchaser for attempted resolution,
who shall have a further thirty (30) days to resolve the Dispute. Except to the
extent the sole relief sought is equitable, no recourse to litigation shall take
place unless and until such procedure has been followed.
(l) Agreement as to Venue. Should any party or its affiliates wish to
initiate litigation, whether by was of claim, counter-claim or otherwise, with
respect to a Dispute, each of the parties agrees to, and to cause any such
affiliate to, submit in respect thereto to the jurisdiction of the federal court
sitting in Denver, Colorado if it has subject matter jurisdiction over such
24
claim, or if it does not state courts sitting in such city. Each party also
agrees not to bring any action or proceeding with respect to any Dispute in any
other court. Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety,
or other security that might be required of any other party with respect
thereto. Any party may make service on any other party by sending or delivering
a copy of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 10(e) hereof. Nothing in this
Section 10(1), however, shall affect the right of any party to serve legal
process in any other manner permitted by law or at equity.
(m) Further Assurances. Each party hereto shall, before, at and after
Closing, execute and deliver such instruments and take such other actions as the
other party or parties, as the case may be, may reasonably require in order to
carry out the intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MidAmerica Mutual Life Insurance
Company
Attest:________________________ By:_______________________________
Its:___________________________
MidAmerica Enterprises Inc.
Attest:_________________________ By:_______________________________
Its:___________________________
Provident American Corporation
Attest:__________________________ By:_______________________________
Its:___________________________
25