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EXHIBIT 10.51
STOCK PURCHASE AGREEMENT
BY AND AMONG
AMVESTORS FINANCIAL CORPORATION,
CREATIVE MARKETING INTERNATIONAL CORPORATION
AND
THE STOCKHOLDERS OF
CREATIVE MARKETING INTERNATIONAL CORPORATION
FEBRUARY 1, 2000
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TABLE OF CONTENTS
Page
ARTICLE 1: DEFINITIONS...........................................................................................1
ARTICLE 2: PURCHASE AND SALE.....................................................................................3
2.1. Purchase and Sale.................................................................................3
2.2. Purchase Price....................................................................................3
ARTICLE 3: CLOSING...............................................................................................4
3.1. Time and Place of Closing.........................................................................4
3.2. Deliveries at Closing.............................................................................4
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF SELLERS.............................................................5
4.1. Organization and Standing.........................................................................5
4.2. Capital Stock; Options............................................................................5
4.3. Authorization.....................................................................................6
4.4. Subsidiaries and Affiliates.......................................................................6
4.5. No Violation......................................................................................6
4.6. Governmental Authorities..........................................................................6
4.7. Financial Statements..............................................................................6
4.8. No Undisclosed Liabilities, Claims, etc...........................................................6
4.9. Absence of Certain Changes........................................................................6
4.10. Contracts.........................................................................................7
4.11. True and Complete Copies..........................................................................7
4.12. Title and Related Matters.........................................................................7
4.13. Litigation........................................................................................9
4.14. Tax Matters.......................................................................................9
4.15. Government Contracts.............................................................................11
4.16. Compliance with Law..............................................................................11
4.17. Absence of Certain Business Practices............................................................11
4.18. ERISA and Related Employee Benefit Matters.......................................................12
4.19. Intellectual Property............................................................................14
4.20. Labor Relations..................................................................................14
4.21. Insurance........................................................................................15
4.22. Environmental....................................................................................15
4.23. Capital Expenditures.............................................................................17
4.24. Suppliers........................................................................................17
4.25. Dealings with Affiliates.........................................................................17
4.26. Bank Accounts....................................................................................17
4.27. Compensation.....................................................................................17
4.28. Insurance Licenses...............................................................................17
4.29. Consultants, Brokers and Finders.................................................................17
ARTICLE 5: REPRESENTATIONS AND WARRANTIES OF BUYER..............................................................17
5.1. Organization and Standing........................................................................18
5.2. No Violation.....................................................................................18
5.3. Governmental Authorities.........................................................................18
5.4. Consultants, Brokers and Finders.................................................................18
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ARTICLE 6: CONDITIONS TO CLOSING................................................................................18
6.1. Conditions to Obligation of Buyer................................................................18
6.2. Conditions to Obligation of Sellers..............................................................19
ARTICLE 7: INDEMNIFICATION; REMEDIES............................................................................19
7.1. Investigations; Survival of Warranties and Indemnification Obligations...........................19
7.2. Indemnification by Sellers.......................................................................20
7.3. Indemnification By Buyer.........................................................................20
7.4. Notice of Claim; Payment.........................................................................20
7.5. Construction.....................................................................................22
7.6 Limitations on Indemnity.........................................................................22
ARTICLE 8: MISCELLANEOUS........................................................................................22
8.1. Payment of Expenses..............................................................................22
8.2. Announcements....................................................................................22
8.3. Assignment and Binding Effect....................................................................22
8.4. Waivers..........................................................................................22
8.5. Notices..........................................................................................23
8.6. Kansas Law to Govern.............................................................................23
8.7. No Benefit to Others.............................................................................23
8.8. Entire Agreement; Amendments.....................................................................24
8.9. Exhibits and Schedules...........................................................................24
8.10. Cooperation......................................................................................24
8.11. Severability.....................................................................................24
8.12. Counterparts.....................................................................................24
8.13. Representation By Counsel; Interpretation........................................................24
8.14. No Contribution; Indemnity.......................................................................24
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of
February 1, 2000, is made by and among AMVESTORS FINANCIAL CORPORATION, a Kansas
corporation ("Buyer"), CREATIVE MARKETING INTERNATIONAL CORPORATION, a Kansas
corporation (the "Company"), and the stockholders of the Company identified on
the signature page hereto (each a "Seller" and collectively, "Sellers").
RECITALS
WHEREAS, as of January 31, 2000, all of the 4% Convertible
Debentures Due 2004 issued by the Company to Buyer on March 5, 1999 (the
"Debentures") were converted into shares of common stock, $1.00 par value, of
the Company (the "Common Stock"), representing 45% of the then issued and
outstanding shares of Common Stock; and
WHEREAS, Sellers own 70,800 shares of Common Stock,
representing 55% of the shares of Common Stock issued and outstanding at the
time of execution hereof (the "Shares"); and
WHEREAS, Sellers desire to sell, and Buyer desires to
purchase, the Shares for the consideration and on the terms and conditions set
forth in this Agreement; and
WHEREAS, following the conversion of the Debentures into
shares of Common Stock and the purchase of the Shares from Sellers, Buyer will
own 100% of the issued and outstanding shares of Common Stock;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and
respective covenants, representations and warranties herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE 1:
DEFINITIONS
For purposes of this Agreement, the following terms have the
meanings specified or referred to in this Article 1:
"Affiliates" shall have the meaning set forth in Section 4.4.
"Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Balance Sheet(s)" shall have the meaning set forth in Section
4.7.
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"Base Amount" shall have the meaning set forth in Section 2.2.
"Buyer" shall have the meaning set forth in the preamble of
this Agreement.
"Buyer Closing Deliveries" shall have the meaning set forth in
Section 3.2.
"Closing" shall have the meaning set forth in Section 3.1.
"Closing Date" shall have the meaning set forth in Section
3.1.
"Code" shall have the meaning set forth in Section 4.14.
"Common Stock" shall have the meaning set forth in the
Recitals of this Agreement.
"Company" shall have the meaning set forth in the preamble of
this Agreement.
"Contracts" shall have the meaning set forth in Section 4.10.
"Damages" shall have the meaning set forth in Section 7.2.
"Debentures" shall have the meaning set forth in the Recitals
of this Agreement.
"Earnout Amount" shall have the meaning set forth in Schedule
2.2.
"Employment Agreements" shall have the meaning set forth in
Section 3.2.
"Encumbrances" shall mean all mortgages, security interests,
liens, pledges, claims, escrows, options, rights of first refusal, indentures,
easements, licenses, security agreements or other agreements, arrangements,
contracts, commitments, understandings, obligations, charges or encumbrances of
any kind or character.
"Environmental Laws and Regulations" shall have the meaning
set forth in Section 4.22.
"ERISA" shall have the meaning set forth in Section 4.18.
"GAAP" means generally accepted accounting principles.
"Hazardous Materials" shall have the meaning set forth in
Section 4.22.
"Income Statements" shall have the meaning set forth in
Section 4.7.
"Indemnified Persons" shall have the meaning set forth in
Section 7.2.
"IRS" shall have the meaning set forth in Section 4.14.
"Intellectual Property Rights" shall have the meaning set
forth in Section 4.19.
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"Key Employees" means employees of the Company who have
material relationships with the Company's customers.
"Knowledge" means the actual knowledge of the subject person
and that knowledge that would be obtained or realized upon the subject person's
reasonable and prudent inquiry into the matter after having been put on notice
(including constructive notice provided for under applicable statutory or
regulatory provisions) of the need to so inquire.
"Laws" shall include, without limitation, all foreign,
federal, state and local laws, statutes, rules, regulations, codes, ordinances,
plans, orders, judicial decrees, writs, injunctions, notices, decisions or
demand letters issued, entered or promulgated pursuant to any foreign, federal,
state or local law.
"Lease Restrictions" shall have the meaning set forth in
Section 4.12.
"Licenses" shall have the meaning set forth in Section 4.28.
"Matter" shall have the meaning set forth in Section 4.13
"Objected Claim" shall have the meaning set forth in Section
7.4.
"Pension Benefit Plan" shall have the meaning set forth in
Section 4.18.
"Purchase Price" shall have the meaning set forth in Section
2.2.
"Seller(s)" shall have the meaning set forth in the preamble
of this Agreement.
"Seller Closing Deliveries" shall have the meaning set forth
in Section 3.2.
"Shares" shall have the meaning set forth in the Recitals of
this Agreement.
"Taxes" shall have the meaning set forth in Section 4.14.
"Threshold Amount" shall have the meaning set forth in Section
7.6.
"Welfare Benefit Plan" shall have the meaning set forth in
Section 4.18.
ARTICLE 2:
PURCHASE AND SALE
2.1. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, and for the consideration specified in Section 2.2
hereof, at the Closing, Sellers shall sell and transfer the Shares to Buyer and
Buyer shall purchase and acquire the Shares from Sellers.
2.2. Purchase Price. The aggregate total purchase price for
the Shares (the "Purchase Price") shall be (i) $8,000,000 (the "Base Amount")
plus (ii) the Earnout Amount.
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The Base Amount shall be paid to Sellers at the Closing and the Earnout Amount,
if any, shall be paid to Sellers in accordance with the terms and conditions set
forth in Schedule 2.2. Both the Base Amount and the Earnout Amount shall be paid
to Sellers in the proportions set forth in Schedule 2.2.
ARTICLE 3:
CLOSING
3.1. Time and Place of Closing. The consummation of the
transactions contemplated hereby (the "Closing") shall take place on or before
February 1, 2000, at the offices of Bryan Cave LLP, 1200 Main Street, Suite
3500, Kansas City, Missouri 64105. Each party shall cooperate, as to matters
under such party's control, in the satisfaction of conditions to the obligations
of the parties at Closing; provided that the foregoing shall not require any
party to waive any condition herein to its obligations at Closing or to incur
any substantial cost not otherwise required hereunder. The date that the Closing
occurs is hereinafter sometimes referred to as the "Closing Date."
3.2. Deliveries at Closing.
(a) At the Closing, the Company and Sellers shall deliver
or cause to be delivered to Buyer (the "Seller Closing Deliveries"):
(i) fully executed, sealed and proper certificates
evidencing the Shares in negotiable form;
(ii) the release substantially in the form attached
hereto as Exhibit 3.2(a)(ii), duly executed by each Seller and
dated the Closing Date;
(iii) the opinion of counsel to the Company and
Sellers substantially in the form attached hereto as Exhibit
3.2(a)(iii), duly executed by such counsel and dated the
Closing Date;
(iv) the certificate of the chief executive officer,
chief financial officer and secretary, respectively, of the
Company and Sellers certifying the satisfaction of the closing
conditions set forth in Sections 6.1(a), 6.1(b) and 6.1(c)
hereof, and the signatures and incumbency of such persons, and
dated the Closing Date;
(v) employment, noncompetition and confidentiality
agreements, duly executed by each of the Sellers and dated the
Closing Date (the "Employment Agreements");
(vi) resignations of all current directors of the
Company, effective upon the Closing; and
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(vii) such other documents, instruments and
certificates, duly executed by appropriate persons and dated
appropriately, as reasonably requested in writing by Buyer.
(b) At the Closing, Buyer shall deliver or cause to be
delivered to Sellers the following (the "Buyer Closing Deliveries"):
(i) the Base Amount, in immediately available funds,
by wire transfer to such accounts as have been designated by
Sellers in writing to Buyer not less than five (5) business
days before Closing;
(ii) the certificate of the duly authorized officer of
Buyer who signed this Agreement on behalf of Buyer and the
secretary of Buyer, respectively, certifying the satisfaction
of the closing conditions set forth in Sections 6.2(a), 6.2(b)
and 6.2(c), and the signatures and incumbency of such persons,
dated the Closing Date; and
(iii) the Employment Agreements duly executed by the
Company and dated the Closing Date.
ARTICLE 4:
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each of Sellers, jointly and severally, represents and
warrants to Buyer that the following representations and warranties are true and
correct as of the date hereof (unless specifically stated to be as of a
different date) and will be true and correct as of the Closing Date:
4.1. Organization and Standing. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Kansas with all requisite corporate power and authority to carry on its
business as it is now being conducted and to own, operate and lease its
properties and assets. Schedule 4.1 lists each of the states where the Company
is qualified as a foreign corporation. The conduct of its business and its
ownership or use of property do not require the Company to be qualified or
licensed to do business as a foreign corporation in any state except those
listed in Schedule 4.1. The Company has all federal, state, local and foreign
licenses, permits or other approvals required for the operation of its business
as now being conducted.
4.2. Capital Stock; Options. The authorized capital stock of
the Company consists of 200,000 shares of Common Stock and 8,000 shares of
convertible preferred stock, par value $1.00 per share, and the only shares of
capital stock of the Company issued and outstanding are the 70,800 shares of
Common Stock owned by Sellers of record and beneficially and the shares of
Common Stock issued to Buyer upon the conversion of the Debentures. The Company
has no treasury stock. All the Shares are validly issued, fully paid and
nonassessable and are owned by Sellers, free and clear of all Encumbrances.
Except as set forth in Schedule 4.2, there are no issued and outstanding
options, warrants, rights, securities, contracts, commitments, understandings or
arrangements by which the Company or any Seller is bound
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with respect to the Shares (with regard to voting, transfer, sale or otherwise)
or to issue any additional shares of its capital stock or equity equivalents.
4.3. Authorization. The Company and Sellers have full power
and authority to enter into this Agreement and to carry out the transactions
contemplated hereby.
4.4. Subsidiaries and Affiliates. Except as set forth in
Schedule 4.4, the Company has no subsidiaries, Affiliates (as defined below) or
investments in any other entity or business operation. The term "Affiliates"
includes each stockholder, director and officer of a party, and any corporation,
partnership or other entity in which such party or a director or officer of such
party has any financial interest or is a controlling person, as that term is
used in connection with the federal securities laws, if any such person or
entity has, or in the past had, a contractual relationship with or transacted
business with such party.
4.5. No Violation. Except as set forth in Schedule 4.5, the
Company is not subject to or obligated under any article of incorporation,
bylaw, Law, or any agreement or instrument, or any license, franchise or permit,
which would be breached or violated by the execution, delivery and performance
of this Agreement by the Company or any Seller. The Company and Sellers have
complied with all applicable Laws in connection with their execution, delivery
and performance of this Agreement and the transactions contemplated hereby.
4.6. Governmental Authorities. Neither the Company nor any
Seller is required to submit any notice, report or other filing with, and no
consent, approval or authorization is required by, any governmental or
regulatory authority in connection with their execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby, except
for such notices, reports, other filings, consents, approvals or other
authorizations which have been made or obtained.
4.7. Financial Statements. Schedule 4.7 contains the Company's
balance sheet at December 31, 1998 and at December 31, 1999 (the "Balance
Sheets") and Statements of Revenue and Expenses for the fiscal years ended
December 31, 1998 and December 31, 1999 (the "Income Statements"). The Balance
Sheets are complete and accurate and fairly present the financial position of
the Company as of the dates thereof, and the Income Statements fairly and
accurately present the results of operations for the fiscal years then ended.
The Company's balance sheet at December 31, 1999 is hereinafter sometimes
referred to as the "Balance Sheet."
4.8. No Undisclosed Liabilities, Claims, etc. Except for (a)
liabilities fully reflected or reserved against in the Balance Sheet; and (b)
regular and usual liabilities and obligations incurred in the ordinary course of
business consistent with past practices after December 31, 1999, the Company has
no liabilities, obligations or claims (absolute, accrued, fixed or contingent,
matured or unmatured, or otherwise), including liabilities, obligations or
claims which may become known or which arise only after the Closing and which
result from actions, omissions or occurrences of the Company prior to the
Closing.
4.9. Absence of Certain Changes. Except as set forth in
Schedule 4.9, since December 31, 1999, (a) there has not been (i) any adverse
change in the business, financial
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condition, earnings, operations or prospects of the Company's business; (ii) any
damage, destruction or loss, whether covered by insurance or not, adversely
affecting the Company's properties, business or prospects; (iii) any increase in
the compensation payable or to become payable by the Company to its directors,
officers or Key Employees, or any adoption of or increase in any bonus,
insurance, pension or other employee benefit plan, payment or arrangement made
to, for or with any such party; (iv) any entry into any commitment or
transaction outside the ordinary course of the Company's business, including,
without limitation, any borrowing or capital expenditure; (v) any change by the
Company in accounting methods, practices or principles; (vi) any termination or
waiver of any rights of value to the business of the Company; (vii) any
transaction or event involving receipt or payment of more than $5,000 not in the
ordinary course of the Company's business; (viii) any adoption or amendment of
any collective bargaining, bonus, profit sharing, compensation, stock option,
pension, retirement, deferred compensation, or other plan, agreement, trust,
fund or arrangement for the benefit of employees; or (ix) any agreement or
understanding made or entered into to do any of the foregoing; and
(b) the Company has (i) operated its business and promoted and
maintained the Accounts in the ordinary course, diligently and in good faith,
consistent with past management practices; and (ii) maintained all of its
properties in customary repair, order and condition, reasonable wear and tear
excepted.
4.10. Contracts. Schedule 4.10 contains a list of all
Contracts to which the Company is a party. The term "Contracts" shall include,
but shall not be limited to, all oral (which shall be summarized in Schedule
4.10) and written contracts, agreements, loan agreements, mortgages, indentures,
deeds of trust, guarantees, commitments, joint venture agreements, purchase
and/or sale agreements, collective bargaining, union, consulting and/or
employment contracts, leases of real or personal property, easements,
distribution or dealer agreements, service agreements, license agreements and
advertising agreements (except there shall not be included any license
agreements, brokers agreement with insurance agents or agreements which do not
exceed, in the case of any one agreement, an obligation of $50,000, and in the
case of all such agreements, an aggregate obligation of $100,000). The Company
is not in default or alleged to be in default under any Contract nor is the
Company aware of any default by any other party to any Contract, and there
exists no event, condition or occurrence which, after notice or lapse of time,
or both, would constitute a default by the Company under any Contract. All the
Contracts are in full force and effect and constitute legal, valid and binding
obligations of the parties thereto in accordance with their terms.
4.11. True and Complete Copies. Copies of all agreements,
contracts and documents delivered and to be delivered hereunder by the Company
are true and complete copies of such agreements, contracts and documents. All
written summaries of oral agreements are materially correct.
4.12. Title and Related Matters. Except as set forth in
Schedule 4.12, the Company has good and marketable title to (or in the case of
indicated leases, valid leasehold interest) in all the properties and assets
reflected in the Balance Sheet or acquired after the date
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thereof (except properties sold or otherwise disposed of since the date thereof
in the ordinary course of business and consistent with past practices)
including, without limitation, the specific assets referred to in paragraphs
(a), (b) and (c) below, free and clear of all Encumbrances, except as reflected
on the Balance Sheet. The Company owns or leases, directly or indirectly, all
the assets and properties, and is a party to all licenses and other agreements,
presently used or necessary to carry on the business or operations of the
Company as presently conducted.
(a) Real Property
(i) The Company has good and marketable title in fee
simple to the land, including buildings and improvements thereon,
shown on the Balance Sheet. All such land, buildings and
improvements of the Company are owned free and clear of all
Encumbrances of every kind and character, except as set forth on
Schedule 4.12.
(ii) The Company is not a tenant under any lease(s) of
real property used by the Company except as described on Schedule
4.10. With respect to the leased real property described on
Schedule 4.10 and except as set forth on Schedule 4.12: (A) all
such leases are in full force and effect and constitute valid and
binding obligations of the respective parties thereto; (B) there
have not been and there currently are not any defaults thereunder
by any party thereto; (C) no event has occurred which (whether
with or without notice, lapse of time or the happening or
occurrence of any other event) would constitute a default
thereunder entitling the lessor to terminate the lease; and (D)
the continuation, validity and effectiveness of all such leases
under the current rentals and other current terms thereof will in
no way be affected by the transactions contemplated by this
Agreement or, if any would be affected, Sellers shall use all
necessary means at their disposal to cause an appropriate consent
to such transactions to be delivered to Buyer prior to the
Closing Date at no cost or other adverse consequence to the
Company or Buyer ((A) through (D) are hereinafter collectively
referred to as "Lease Restrictions").
(iii) The Company does not currently have, and in the past
has not had, any ownership interest in any real property except
as disclosed on Schedule 4.12.
(b) Personal Property. The Company has good and marketable
title to all the personal property and assets, tangible or intangible, shown on
the Balance Sheet, except to the extent sold or disposed of in transactions
entered into in the ordinary course of business consistent with past practices
since December 31, 1999. The personal property in the aggregate is in good
condition and working order, and each individual item of personal property which
would cost in excess of $5,000 to replace is in good condition and working
order. None of such assets are subject to any (i) contracts of sale or lease,
except contracts for the sale of inventory in the ordinary and regular course of
business; or (ii) Encumbrances, except as set forth
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in Schedule 4.12. Except as set forth in Schedule 4.12, there are no
Lease Restrictions with respect to the personal property leased by the
Company.
(c) No Disposition of Assets. There has not been since
December 31, 1999, any sale, lease or any other disposition or
distribution by the Company of any of its assets or properties and any
other assets now or hereafter owned by it, except transactions in the
ordinary and regular course of business consistent with past practices
or as otherwise consented to by Buyer.
4.13. Litigation. Except as set forth in Schedule 4.13, (a)
there is no suit, action, investigation or proceeding pending or threatened
against the Company or any of the Company's directors, officers or Key Employees
(a "Matter"), (b) there are no Matters pertaining to the Licenses, and (c)
without limiting the generality of the foregoing, there are no Attorney General,
department of insurance or other matters pending or threatened which, if
adversely determined, would adversely affect the business prospects, operations,
earnings, properties or the condition, financial or otherwise, of the Company.
Except as set forth on Schedule 4.13, there is not any judgment, decree,
injunction, ruling or order of any court, governmental department, commission,
agency, instrumentality or arbitrator outstanding against the Company having, or
which, insofar as can be reasonably foreseen, in the future may have, any such
effect.
4.14. Tax Matters. The term "Taxes" means all net income,
capital gains, gross income, gross receipts, sales, use, transfer, ad valorem,
franchise, profits, license, capital, withholding, payroll, employment, excise,
goods and services, severance, stamp, occupation, premium, property, windfall
profits, customs, duties or other taxes, fees or assessments, or other
governmental charges of any kind whatsoever, together with any interest, fines
and any penalties, additions to tax or additional amounts incurred or accrued
under applicable Laws or assessed, charged or imposed by any governmental
authority, domestic or foreign, provided that any interest, penalties, additions
to tax or additional amounts that relate to Taxes for any taxable period
(including any portion of any taxable period ending on or before the Closing
Date) shall be deemed to be Taxes for such period, regardless of when such items
are incurred, accrued, assessed or charged. For purposes of this Section 4.14,
the Company shall be deemed to include any predecessor of the Company or any
person or entity from which the Company incurs a liability for Taxes as a result
of transferee liability. Except as stated in Schedule 4.14:
(a) the Company has duly and timely filed (and prior to
the Closing Date will duly and timely file) true, correct and complete
tax returns, reports or estimates, all prepared in accordance with
applicable Laws, for all years and periods (and portions thereof) and
for all jurisdictions (whether federal, state, local or foreign) in
which any such returns, reports or estimates were due. All Taxes shown
as due and payable on such returns, reports and estimates have been
paid, and there is no current liability for any Taxes due and payable
in connection with any such returns. All Taxes not yet due and payable
have been fully accrued on the books of the Company and the Balance
Sheet and adequate reserves have been established therefor; the
charges, accruals and reserves for Taxes provided for on the financial
statements delivered pursuant to Section 4.7 are adequate; and there
are no unpaid assessments for additional Taxes for any period nor is
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there any basis therefor. Copies of all federal, state and foreign tax
returns filed by the Company for the past two (2) years have been
delivered to Buyer.
(b) the Company is not, and never has been, a member of
any consolidated, combined or unitary group for federal, state, local
or foreign tax purposes. the Company is not a party to any joint
venture, partnership or other arrangement that could be treated as a
partnership for federal income tax purposes.
(c) the Company has (i) withheld all required amounts
from its employees, agents, contractors and nonresidents and remitted
such amounts to the proper agencies, (ii) paid all employer
contributions and premiums and (iii) filed all federal, state, local
and foreign returns and reports with respect to employee income tax
withholding, and social security and unemployment taxes and premiums,
all in compliance with the withholding tax provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), as in effect for the
applicable year or any prior provision thereof and other applicable
Laws.
(d) The federal income tax returns of the Company have
been examined by the Internal Revenue Service (the "IRS"), or have
been closed by the applicable statute of limitations, for all periods
through December 31, 1994; and the state tax returns of the Company
have been examined by the relevant state agencies or such returns have
been closed by the applicable statute of limitations for all periods
through December 31, 1994; and no deficiencies or reassessments for
any Taxes have been proposed, asserted or assessed against the Company
by any federal, state, local or foreign taxing authority. Schedule
4.14 describes the status of any federal, state, local or foreign tax
audits or other administrative proceedings, discussions or court
proceedings that are presently pending with regard to any Taxes or tax
returns of the Company (including a description of all issues raised
by the taxing authorities in connection with any such audits or
proceedings), and no additional issues are being asserted against the
Company in connection with any existing audits or proceedings.
(e) the Company has not executed or filed any agreement
or other document extending the period for assessment, reassessment or
collection of any Taxes, and no power of attorney granted by the
Company with respect to any Taxes is currently in force.
(f) the Company has not entered into any closing or
other agreement with any taxing authority which affects any taxable
year of the Company ending after the Closing Date. The Company is not
a party to any tax sharing agreement or similar arrangement for the
sharing of tax liabilities or benefits.
(g) the Company has not agreed to and is not required to
make any adjustment by reason of a change in accounting methods that
affects any taxable year ending after the Closing Date. The IRS has
not proposed to the Company any such adjustment or change in
accounting methods that affects any taxable year ending after the
Closing Date. The Company has no application pending with any taxing
authority
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requesting permission for any changes in accounting methods that
relate to its business or operations and that affects any taxable
year ending after the Closing Date.
(h) Neither Buyer nor the Company will be liable for any
federal, state, local, foreign and other sales, use, documentary,
recording, stamp, transfer or similar Taxes applicable to, imposed
upon or arising out of prior tax returns or obligations and the
transactions contemplated by this Agreement.
4.15. Government Contracts. No Contract or other aspect of the
business of the Company is subject to the Armed Services Procurement Regulations
or other regulations of any governmental agency. The Company has not bid on or
been awarded any "small business set aside contract," any other "set aside
contract" or other order or contract requiring small business or other special
status at any time during the last three (3) years.
4.16. Compliance with Law.
(a) To the Knowledge of the Sellers, the Company has not
previously failed and is not currently failing to comply with any
applicable Laws relating to the business of the Company or the
operation of its assets. In particular, but without limiting the
generality of the foregoing, to the Knowledge of the Sellers, the
Company is in compliance with all applicable Laws relating to
deceptive trade practices, unauthorized practice of law, unfair
competition, unfair claims settlement practices, rebating,
anti-competitive practices, price fixing, health and safety,
environmental, employment and discrimination matters. There are no
proceedings of record and no proceedings are pending or threatened,
nor has the Company received any written notice regarding any
violation of any Law, including, without limitation, any requirement
of OSHA or any pollution or environmental control agency (including
air and water).
(b) Schedule 4.16 contains copies of all reports,
orders, consent agreements and findings of inspections by
representatives of any federal, state or local governmental entity or
agency of the Company's business and properties from January 1, 1997
through the date hereof. The deficiencies, if any, noted on such
reports or any deficiencies noted by such inspections through the
Closing Date shall be corrected by the Closing Date. Neither the
Company nor any Seller knows or has reason to know of any other
safety, health, environmental, anti-competitive or discrimination
problems relating to the financial condition, business, assets,
operations, prospects, earnings or employment practices of the
Company.
4.17. Absence of Certain Business Practices. Except as set
forth on Schedule 4.17, none of the Company, any director, officer, employee or
agent of the Company, any Seller, any other person or entity acting on behalf of
the Company or any Seller, nor any other entity directly or indirectly owned or
controlled by the Company or any Seller, acting alone or together, has (a)
received, directly or indirectly, any payments, promotional allowances or any
other economic benefit, regardless of its nature or type, from any customer,
supplier, trading company, shipping company, governmental employee or other
entity or individual with whom the
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Company has done business directly or indirectly, other than commissions, fees
and rebates for the Company's normal business operations, or (b) directly or
indirectly, given or agreed to give any gift or similar benefit to any customer,
supplier, trading company, shipping company, governmental employee or other
person or entity who is or may be in a position to help or hinder the business
of the Company (or assist the Company in connection with any actual or proposed
transaction) any of which (i) might subject the Company to any damage or penalty
in any civil, criminal or governmental litigation or proceeding, (ii) if not
given in the past, might have had an adverse effect on the assets, business or
operations of the Company as reflected in the financial statements set forth in
Schedule 4.7, or (iii) if not continued in the future, might adversely affect
the assets, business operations or prospects of the Company or which might
subject the Company to suit or penalty in any private or governmental litigation
or proceeding.
4.18. ERISA and Related Employee Benefit Matters.
(a) Welfare Benefit Plans. Schedule 4.18(a) lists each
"employee welfare benefit plan" (within the meaning of Section 3(1) of
the Employee Retirement Income Security Act of 1974 ("ERISA"))
maintained by the Company or to which the Company contributes or is
required to contribute, including any multiemployer plan ("Welfare
Benefit Plan") and sets forth as of the most recent valuation date (i)
the amount of any liability of the Company for payments due with
respect to any Welfare Benefit Plan, (ii) the amount of any payment
made and to be made, stated separately, by the Company with respect to
any Welfare Benefit Plan for the current plan year, and (iii) with
respect to any Welfare Benefit Plan to which Section 505 of the Code
applies, a statement of assets and liabilities for such Welfare
Benefit Plan as of the most recent valuation date. Without limiting
the foregoing, Schedule 4.18(a) discloses any obligations of the
Company to provide retiree health benefits to current or former
employees of the Company.
(b) Pension Benefit Plans. Schedule 4.18(b) lists each
"employee pension benefit plan" (within the meaning of Section 3(2) of
ERISA) maintained by the Company or to which the Company contributes
or is required to contribute, including any multiemployer plan
("Pension Benefit Plan"). All costs of each Pension Benefit Plan have
been provided for on the basis of consistent methods and, if
applicable, in accordance with sound actuarial assumptions and
practices that are acceptable under ERISA. The Company does not
maintain or contribute to any Pension Benefit Plan that is subject to
Title I, Part 3 of ERISA (concerning "funding"). With respect to each
Pension Benefit Plan that is not subject to Title I, Part 3 of ERISA,
Schedule 4.18(b) sets forth as of the valuation date (i) the amount of
any liability of the Company for any contributions due with respect to
such Pension Benefit Plan and (ii) the amount of any contribution paid
and to be paid, stated separately, by the Company with respect to such
Pension Benefit Plan for the current plan year.
(c) Compliance with Applicable Law. Each of the Pension
Benefit Plans, Welfare Benefit Plans, any related trust agreements,
insurance contracts, annuity contracts, and other funding
arrangements, comply in all respects with the provisions of ERISA and
the Code and all other statutes, orders, governmental rules and
regulations
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applicable to such Welfare Benefit Plans and Pension Benefit Plans.
The Company has performed all of its obligations currently required to
have been performed under all Welfare Benefit Plans and Pension
Benefit Plans. There are no actions, suits or claims (other than
routine claims for benefits) pending or threatened against or with
respect to any Welfare Benefit Plans, Pension Benefit Plans or the
assets of such plans, and no facts exist that could give rise to any
actions, suits or claims (other than routine claims for benefits)
against such plans or the assets of such plans. Each Pension Benefit
Plan is qualified in form and operation under section 401(a) of the
Code. The IRS has issued a favorable determination letter with respect
to each Pension Benefit Plan and no event has occurred that will or
could give rise to a disqualification of any Pension Benefit Plan
under Code Section 401(a). No event has occurred that will or could
subject any Welfare Benefit Plan or Pension Benefit Plan to tax under
Section 511 of the Code.
(d) Administration of Plans. Each Welfare Benefit Plan
and each Pension Benefit Plan has been administered to date in
compliance with the requirements of ERISA and the Code. No fiduciary
of any Welfare Benefit Plan or Pension Benefit Plan has engaged in (i)
any transaction in violation of Section 406(a) or (b) of ERISA, or
(ii) any "prohibited transaction" (within the meaning of Section
4975(c)(1) of the Code) for which no exemption exists under Section
408 of ERISA or Section 4975(d) of the Code. No trust agreement,
insurance contract, annuity contract, or other funding arrangement
would impose a penalty, discount, or other reduction on account of the
withdrawal of assets from such agreement, contract, or arrangement or
a change in investment of such assets. There is no pending or
threatened litigation concerning any Welfare Benefit Plan or Pension
Benefit Plan, and there have been no written or oral communications
concerning any such Plan with the IRS, Department of Labor, or any
other federal, state, or local governmental entity.
(e) Other Employee Benefit Plans and Agreements.
Schedule 4.18(e) lists each fringe benefit, cafeteria, profit sharing,
deferred compensation, bonus, stock option, stock purchase, pension,
retainer, consulting, retirement, welfare, or other incentive plan or
agreement, or employment agreement not terminable on 30 days or less
written notice, and any other employee benefit plan, agreement,
arrangement, or commitment not previously listed on the Schedules to
this Section that is maintained by the Company or to which the Company
contributes or is required to contribute.
(f) Copies of Plans. Schedule 4.18(a) lists: each
Welfare Benefit Plan; each Pension Benefit Plan, related trust
agreements, annuity contracts, insurance contracts, and other funding
arrangements; each plan, agreement, arrangement, and commitment
referred to in subsection (e) of this Section; favorable determination
letters; annual reports (Form 5500 series) required to be filed with
any governmental agency for each Welfare Benefit Plan and each Pension
Benefit Plan for the most recent three plan years, including, without
limitation, all schedules thereto and all financial statements with
attached opinions of independent accountants; current summary plan
descriptions; and actuarial reports as of the last valuation date for
each Pension Benefit Plan that is subject to Title IV of ERISA.
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(g) Continuation Coverage Requirements for Health Plans.
Each group health plan of the Company (including any plans of
Affiliates of the Company that must be taken into account under
Section 4980B of the Code) has been operated in compliance with the
group health plan continuation coverage requirements of Section 4980B
of the Code and Title I, Part 6 of ERISA.
(h) Valid Obligations. Each Welfare Benefit Plan,
Pension Benefit Plan, related trust agreement, annuity contract or
other funding instrument, and each plan, agreement, arrangement and
commitment referred to in subsection (e) of this Section is legal,
valid and binding and in full force and effect, and there are no
defaults thereunder. Except as specified in Schedule 4.18(h), none of
the rights of the Company thereunder will be impaired by the
consummation of the transactions contemplated by this Agreement, and
all of the rights of the Company thereunder will be enforceable by
Buyer at and after the Closing without the consent or agreement of any
other party other than consents and agreements specifically listed in
Schedule 4.18(h).
4.19. Intellectual Property. The Company has good and
marketable title to each copyright, trademark, trade name, service mark, trade
dress, patent, franchise, trade secret, product designation, formula, process,
know-how, right of publicity, design and other similar rights used in, or
necessary for, the operation of its business as currently conducted. Schedule
4.19 contains a detailed listing of each copyright registered with the U. S.
Copyright Office, each trademark, trade name, service mark, trade dress, and
patent registered with the U. S. Patent and Trademark Office, and all pending
applications therefor, owned by the Company (collectively "Intellectual Property
Rights"). Except as otherwise set forth on Schedule 4.19, all of said
Intellectual Property Rights are free and clear of all Encumbrances. The Company
has the exclusive right to use all Intellectual Property Rights used in, or
necessary for, the operation of its business as currently conducted. The Company
and Sellers have taken all action necessary to protect against and defend
against, and have no Knowledge of, any conflicting use of any such Intellectual
Property Rights. The Company does not have nor does the Company utilize any
Intellectual Property Rights except those which are set forth in Schedule 4.19.
Except as set forth in Schedule 4.19, the Company is not a party in any capacity
to any franchise, license, royalty or other agreement respecting or restricting
any Intellectual Property Rights, and the Intellectual Property Rights used by
the Company in the conduct of the Company's business do not conflict with the
Intellectual Property Rights of any third party. No service provided by the
Company, violates any license or infringes any Intellectual Property Rights of
any third party, and there are no pending claims or demands by any third party
to the contrary.
4.20. Labor Relations. The Company is in compliance with all
Laws respecting employment and employment practices, terms and conditions of
employment and wages and hours, including, without limitation, the Fair Labor
Standards Act, the Family and Medical Leave Act of 1993, the Americans with
Disabilities Act of 1990, the Veterans Reemployment Rights Act, the Equal
Employment Opportunities Act as amended by the Civil Rights Act of 1991, the
Occupational Safety and Health Act, the Employee Retirement Income Security Act,
the Immigration Reform and Control Act of 1986, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Older Workers
Benefit Protective Act, and all other
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Laws, each as amended to date, relating to employer/employee rights and
obligations. The Company currently has satisfactory relationships with its
employees.
4.21. Insurance. Schedule 4.21 lists all of the Company's
existing insurance policies, the premiums therefor and the coverage of each
policy, including errors and omissions, fidelity and crime coverages. Such
policies and the amount of coverage and the risks insured are, in the aggregate,
sufficient to protect and insure the Company against perils which good business
practice demands be insured against or which are normally insured against by
other industry members similarly situated.
4.22. Environmental.
(a) For purposes of this Section:
(i) "Hazardous Materials" means any hazardous,
infectious or toxic substance, chemical, pollutant,
contaminant, emission or waste which is or becomes regulated
by any local, state, federal or foreign authority. Hazardous
Materials include, without limitation, anything which is: (i)
defined as a "pollutant" pursuant to 33 U.S.C. ss. 1362(6);
(ii) defined as a "hazardous waste" pursuant to 42 U.S.C. ss.
6921; (iii) defined as a "regulated substance" pursuant to 42
U.S.C. ss. 6991; (iv) defined as a "hazardous substance"
pursuant to 42 U.S.C. ss. 9601(14); (v) defined as a
"pollutant or contaminant" pursuant to 42 U.S.C. ss. 9601(33);
(vi) petroleum; (vii) asbestos; and (viii) polychlorinated
biphenyl.
(ii) "Environmental Laws and Regulations" means
all limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and
timetables contained in any Laws relating to pollution,
nuisance, or the environment including, without limitation,
(i) the Federal Clean Air Act, 42 U.S.C. ss. 7401 et seq.;
(ii) the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. ss. 9601 et seq.; (iii) the
Federal Emergency Planning and Community Right-to-Know Act, 42
U.S.C. ss. 1101 et seq.; (iv) the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. ss. 136 et seq.; (v)
the Federal Water Pollution Control Act, 33 U.S.C. ss. 1251
et seq.; (vi) the Solid Waste Disposal Act, 42 U.S.C. ss.
6901 et seq.; (vii) the Toxic Substances Control Act, 15
U.S.C. ss. 2601 et seq.; (viii) Laws relating in whole or
part to emissions, discharges, releases, or threatened
releases of any Hazardous Material; and (ix) Laws relating in
whole or part to the manufacture, processing, distribution,
use, coverage, disposal, transportation, storage or handling
of any Hazardous Material.
(b) The operations and activities of the Company comply,
and have in the past complied, in all respects, with all Environmental
Laws and Regulations. There are no pending or currently proposed
changes to any Environmental Laws and Regulations which, when
implemented or effective, may affect the operations of the Company.
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(c) The Company has obtained and is and has been in full
compliance with all requirements, permits, licenses and other
authorizations which are required with respect to the Company's
operations, as well as the transactions contemplated hereby under all
Environmental Laws and Regulations. Schedule 4.22 lists each such
permit, license or other authorization. There are no other such
permits, licenses or other authorizations which are required by any
Environmental Laws and Regulations to be obtained after the Closing.
(d) There is no civil, criminal, administrative or other
action, suit, demand, claim, hearing, notice of violation, proceeding,
investigation, notice or demand pending, received or threatened
against the Company relating in any way to any Environmental Laws and
Regulations.
(e) The Company has not caused or experienced any past
or present events, conditions, circumstances, plans or other matters
which: (i) are not in compliance with all Environmental Laws and
Regulations; (ii) may give rise to any statutory, common law, or other
legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, notice of violation or
investigation based on or relating to Hazardous Materials including,
without limitation, such matters relating to any property owned,
leased or utilized by the Company at any time; (iii) arise from
inventory of or waste from Hazardous Materials; or (iv) arise from any
off-site disposal, release or threatened release of Hazardous
Materials.
(f) No asbestos, polychlorinated biphenyls, lead-based
paints, or radon are on any real property or in any building now or
previously owned, operated, leased or utilized by the Company.
(g) No employee or former employee of the Company has
been exposed to any Hazardous Material owned, produced or utilized by
the Company or any former subsidiary.
(h) Neither the Company nor any Seller has received any
notice or indication from any governmental agency or private or public
entity advising that the Company is or may be responsible for any
investigation or response costs with respect to a release, threatened
release or cleanup of chemicals or materials produced by or resulting
from any business, commercial or industrial activities, operations or
processes, including, without limitation, any Hazardous Materials.
Neither the Company nor any Seller is aware of any facts which might
give rise to such notices.
(i) No underground tanks, piping or subsurface
structures of any type exist or have existed on any real property now
or previously owned, operated, leased or utilized by the Company.
(j) Schedule 4.22 contains complete copies of all
environmental investigations, assessments, audits, studies, tests and
related materials in possession of the Company or any Seller or known
to the Company or any Seller to exist, which relate
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to the current or prior operations of the Company or any real property
now or previously owned, operated, leased or utilized by the Company.
4.23. Capital Expenditures. The Company has no outstanding
commitments for capital expenditures in excess of $50,000 in aggregate.
4.24. Suppliers. No suppliers of goods or services to the
Company that has made sales or provided services representing, individually or
in the aggregate, more than $5,000 in payments or commitments by the Company
since January 1, 1998, has (i) ceased, or indicated any intention to cease,
doing business with the Company, or (ii) changed or indicated any intention to
change any terms or conditions for future supply or sale of products or services
from the terms or conditions that existed with respect to the supply or sale of
such products or services during the twelve (12) month period ending on the date
hereof.
4.25. Dealings with Affiliates. Schedule 4.25 sets forth a
complete list (including the parties) of all oral or written contracts,
arrangements or other agreements (excluding any contract listed on Schedule
4.27) to which the Company is, will be or has been a party at any time from
January 1, 1997, to the Closing Date, and to which any Affiliate was or is also
a party.
4.26. Bank Accounts. Schedule 4.26 is a list of all bank
accounts, lock boxes, safe deposit boxes and post office boxes, and the
combinations, codes or location of keys thereto, maintained in the name of or
controlled by the Company and the names of the persons having access thereto.
4.27. Compensation. Schedule 4.27 lists the current job title
and total remuneration (including, without limitation, salary, commissions and
bonuses) for each officer, director, employee or consultant of the Company who
received total remuneration in excess of $80,000 from the Company during either
of the past two (2) calendar years or who is expected to receive total
remuneration in excess of such amount during the current calendar year.
4.28. Insurance Licenses. the Company and each of its
stockholders, directors, officers and employees required by law to do so has
obtained and currently maintains in good standing all required licenses from the
Kansas Insurance Department and all other similar agencies by which they are
required to be licensed (the "Licenses"). Schedule 4.28 contains an accurate
list of the Licenses, including the number of each License.
4.29. Consultants, Brokers and Finders. Neither the Company
nor any Seller has retained any consultant, broker or finder in connection with
the transactions contemplated by this Agreement
ARTICLE 5:
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers as follows:
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5.1. Organization and Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Kansas and has all requisite corporate power and authority to enter into and
perform its obligations under this Agreement.
5.2. No Violation. Buyer is not subject to or obligated under
any article of incorporation, bylaw, Law, or any agreement or instrument, or any
license, franchise or permit, which would be breached or violated by the
execution, delivery and performance of this Agreement by Buyer. Buyer has
complied with all applicable Laws in connection with its execution, delivery and
performance of this Agreement and the transactions contemplated hereby.
5.3. Governmental Authorities. Buyer is not required to submit
any notice, report or other filing with, and no consent, approval or
authorization is required by, any governmental or regulatory authority in
connection with its execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby, except for such notices, reports, other
filings, consents, approvals or authorizations which have been made or obtained.
5.4. Consultants, Brokers and Finders. Buyer has not retained
any consultant, broker or finder in connection with the transactions
contemplated by this Agreement.
ARTICLE 6:
CONDITIONS TO CLOSING
6.1. Conditions to Obligation of Buyer. The obligation of
Buyer to consummate the transactions contemplated by this Agreement is subject
to satisfaction, at or prior to the Closing, of each of the following conditions
unless Buyer shall have waived such satisfaction pursuant to Section 8.4:
(a) Each of the representations and warranties of Sellers
set forth in this Agreement shall be true and correct as of the
Closing;
(b) On or prior to the Closing Date, Sellers and the
Company shall have performed and complied with all of the covenants
set forth in this Agreement to be performed or complied with by them
or it at or prior to the Closing Date;
(c) No proceeding, regulation or legislation shall have
been instituted, threatened in writing or proposed before, nor any
court order issued by, any governmental authority to enjoin, restrain,
prohibit or obtain substantial damages (i) in respect of, or which is
related to, or arises out of, this Agreement or the consummation of
the transactions contemplated hereby, or (ii) which, in the reasonable
judgment of Buyer, could have an adverse effect on the Company or its
assets;
(d) The Company shall have delivered to Buyer a
certificate issued by the Secretary of State of Kansas, evidencing the
corporate good standing of the Company in Kansas as of a date not more
than one (1) business day prior to the Closing Date;
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(e) The Debentures shall have been converted into shares
of Common Stock representing 45% of the issued and outstanding shares
of Common Stock and the Debentures and agreements related thereto
shall have been terminated, as reasonably requested by counsel to
Buyer; and
(f) The Board of Directors of Buyer shall have approved
the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
6.2. Conditions to Obligation of Sellers. The obligation of
Sellers to consummate the transactions contemplated by this Agreement is subject
to satisfaction, at or prior to the Closing, of each of the following conditions
unless Sellers shall have waived such satisfaction pursuant to Section 8.4:
(a) Each of the representations and warranties of Buyer
set forth in this Agreement shall be true and correct as of the
Closing;
(b) On or prior to the Closing Date, Buyer shall have
performed and complied with all of the covenants set forth in this
Agreement to be performed or complied with by it at or prior to the
Closing Date; and
(c) There shall not be any injunction, judgment, order,
decree, ruling or charge in effect preventing consummation of any
transactions contemplated by this Agreement.
ARTICLE 7:
INDEMNIFICATION; REMEDIES
7.1. Investigations; Survival of Warranties and
Indemnification Obligations. The respective representations and warranties of
Sellers and Buyer contained herein or in any certificates or other documents
delivered at the Closing are true, accurate and correct and shall not be deemed
waived (except to the extent waived in writing pursuant to Section 8.4) or
otherwise affected by any investigation made by any party hereto or by the
occurrence of the Closing. Except to the extent set forth herein to the
contrary, each and every such representation and warranty and indemnification
obligation of any party hereunder shall survive until September 30, 2001;
provided, however, that:
(a) all representations and warranties under Sections 4.1
[Organization and Standing], 4.2 [Capital Stock; Options] and 4.3
[Authorization], and the provisions, covenants and obligations of
Articles 8 [Indemnification; Remedies] and 9 [Miscellaneous] shall
survive the Closing without expiration; and
(b) all representations and warranties under Sections 4.8
[No Undisclosed Liabilities, Claims, etc.] and 4.14 [Tax Matters]
shall survive the Closing for the applicable statute of limitations
for matters arising thereunder, plus ninety (90) days.
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Any claim made in accordance with Article 8 within the applicable survival
period shall survive the Closing until finally resolved notwithstanding
expiration of the applicable survival period.
7.2. Indemnification by Sellers. Sellers shall indemnify and
hold harmless Buyer, the Company and their respective directors, officers,
agents and attorneys (collectively, the "Indemnified Persons"), and shall
reimburse the Indemnified Persons for, any loss, liability, claim, damage,
expense (including, but not limited to, costs of investigation and defense and
reasonable attorneys' and accountants', consultants' and experts' fees and
expenses that would not have otherwise been expended but for the breach),
whether or not involving a third-party claim (collectively, "Damages") for which
a claim is made prior to the expiration of the survival period, if any, under
Section 7.1, arising from or based on any of the following:
(a) any inaccuracy or omission in any of the
representations and warranties of Sellers in this Agreement or in any
document, agreement, instrument or certificate delivered by Sellers at
the Closing pursuant to this Agreement; or
(b) any failure by Sellers (or to the extent it is under
Sellers' control, the Company) to perform or comply with any agreement
or covenant in this Agreement, or under any document, agreement,
instrument or certificate delivered at the Closing by Sellers pursuant
to this Agreement.
Sellers agree that they shall have no rights of any nature whatsoever against
the Company from any and all claims arising out of, in connection with or
relating to the assertion by an Indemnified Person of a right to
indemnification.
7.3. Indemnification By Buyer. Buyer shall indemnify and hold
harmless Sellers and shall reimburse them for any Damages for which a claim is
made prior to the expiration of the survival period, if any, under Section 7.1,
arising from or based on any of the following:
(a) any inaccuracy in any of the representations and
warranties of Buyer in this Agreement or in any document, agreement,
instrument or certificate delivered by Buyer at the Closing pursuant
to this Agreement; or
(b) any failure by Buyer (or to the extent it is under
Buyer's control, the Company) to perform or comply with any agreement
or covenant in this Agreement or under any document, agreement,
instrument, or certificate delivered at the Closing by Buyer pursuant
to this Agreement.
7.4. Notice of Claim; Payment.
(a) Notice. In the event that any party hereunder
determines that it is entitled to an indemnity payment pursuant to
this Article 7, such party shall deliver a written notice to the
indemnifying party.
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(b) Disputed Claim. If the indemnifying party disputes
all or any portion of the claim, the indemnifying party must provide
written notice of its objection (detailing the objection) to the
indemnified party within fifteen (15) business days after the receipt
of the claim from the indemnified party (an "Objected Claim").
(c) Defense by the Indemnifying Parties. In connection
with any claim giving rise to indemnity hereunder resulting from or
arising out of any claim or legal proceeding by a person other than
the indemnified parties, the indemnifying parties, at their sole cost
and expense, may, upon written notice to the indemnified parties
assume the defense of any such claim or legal proceeding provided that
the indemnifying parties acknowledge their obligation to indemnify the
indemnified parties in respect of the entire amount ( subject to the
maximum amount set forth in Section 7.6 (b), if applicable) of all of
the claims asserted therein. If the indemnifying parties assume the
defense of any such claim or legal proceeding, the indemnifying
parties shall select counsel reasonably acceptable to the indemnified
parties to conduct the defense of such claims or legal proceedings
and, at their sole cost and expense, shall take all steps necessary in
the defense or settlement thereof. The indemnifying parties shall not
consent to a settlement of, or the entry of any judgment arising from,
any such claim or legal proceeding, without the prior written consent
of the indemnified parties, unless the indemnifying parties admit in
writing their liability to hold the indemnified parties harmless from
and against any losses, damages, expenses and liabilities arising out
of such settlement and concurrently with such settlement the
indemnifying parties pay into court the full amount of all losses,
damages, expenses and liabilities to be paid by the indemnifying
parties in connection with such settlement. The indemnified parties
shall be entitled to participate in (but not control) the defense of
any such action, with their own counsel and at their own expense. If
the indemnifying parties do not assume the defense of any such claim
or litigation resulting therefrom in accordance with the terms hereof,
the indemnified parties may defend against such claim or litigation in
such manner as they may deem appropriate, including, but not limited
to, settling such claim or litigation, after giving notice of the same
to the indemnifying parties, on such terms as the indemnified parties
may deem appropriate. The indemnifying parties shall be entitled to
participate in the defense of any action by the indemnified parties,
which participation shall be limited to contributing information to
the defense and being advised of its status. In any action by the
indemnified parties seeking indemnification from the indemnifying
parties in accordance with the provisions of this subsection, the
indemnifying parties shall not be entitled to question the manner in
which the indemnified parties defended such claim or litigation or the
amount of or nature of any such settlement.
(d) Interest on Unpaid Claims. If all or part of any
indemnification obligation under this Agreement is not paid when due,
then the indemnifying party or parties shall pay the indemnified party
or parties interest on the unpaid amount of the obligation, at the
fluctuating rate per annum announced in The Wall Street Journal as the
prime rate on the Closing Date, for each day from the date the amount
was originally due until payment in full.
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7.5. Construction. The parties intend that each
representation, warranty and covenant herein shall have independent
significance. If any party has breached any representation, warranty or covenant
contained herein in any respect, the fact that there exists another
representation, warranty or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the party has not
breached shall not detract from or mitigate the fact that the party is in breach
of the first representation, warranty or covenant, as the case may be.
7.6. Limitations on Indemnity.
(a) Tipping Basket. No indemnification payments shall be
payable pursuant to the indemnification obligations of Sellers
pursuant to Section 7.2 or the indemnification obligations of Buyer
pursuant to Section 7.3, respectively, unless the total aggregate
indemnification obligations under either such Section, as applicable
to the indemnifying party, exceeds $10,000 (the "Threshold Amount").
Once the Threshold Amount is satisfied against an indemnifying party,
the indemnifying party shall pay to the indemnified party the
Threshold Amount plus the amount of all indemnification obligations in
excess of the Threshold Amount, subject to the provisions of Section
7.6(b) below.
(b) Maximum. The maximum amount of Damages payable by
Buyer on one hand, and Sellers, on the other hand, under this Article
7 shall be the Purchase Price.
ARTICLE 8:
MISCELLANEOUS
8.1. Payment of Expenses. Except as otherwise specifically
provided herein, each of the Sellers and Buyer will pay all legal, accounting,
investment banking and other fees and expenses which such party incurs in
connection with this Agreement and the transactions contemplated hereby.
8.2. Announcements. No party to this Agreement shall make any
announcement in connection with the transactions contemplated hereby that has
not been previously approved in writing by Buyer and Sellers, except for such
announcement that it reasonably deems advisable or appropriate in connection
with its responsibilities under the applicable securities laws.
8.3. Assignment and Binding Effect. This Agreement may not be
assigned prior to the Closing by any party hereto without the prior written
consent of the other parties, except that Buyer may assign this Agreement to any
direct or indirect wholly-owned affiliate.
8.4. Waivers. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a written
instrument executed by such party. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or
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subsequent default, misrepresentation, or breach of warranty or covenant
hereunder, or affect in any way rights arising by virtue of any prior or
subsequent such occurrence.
8.5. Notices. Any notice, request, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed given only if delivered personally to the
address set forth below (to the attention of the person identified below) or
sent by registered or certified mail, postage prepaid, or by Federal Express or
other express delivery service as follows:
If to Buyer, to:
----------------
AmVestors Financial Corporation
555 South Kansas Avenue
Topeka, KS 66601
Attention: Michael Miller
with a copy to:
Bryan Cave LLP
1200 Main Street, 35th Floor
Kansas City, MO 64105
Attention: Morris K. Withers, Esq.
If to Sellers, to:
------------------
Ronald S. Essary
c/o Creative Marketing International Corporation
7415 West 130th Street, Suite 300
Overland Park, KS 66213
with a copy to:
Robert O. Jester, Esq.
Ensz & Jester P.C.
2121 City Center Square
1100 Main Street
Kansas City, MO 64105
or to such other address as the addressee may have specified in a notice duly
given to the sender and to counsel as provided herein. Such notice, request,
demand, waiver, consent, approval or other communication will be deemed to have
been given as of the date so delivered or, if mailed, three business days after
the date so mailed, or if sent by Federal Express or express delivery service,
when received by the addressee.
8.6. Kansas Law to Govern. This Agreement shall be governed by
and interpreted and enforced in accordance with the substantive laws of the
State of Kansas without regard to the conflicts of law provisions thereof.
8.7. No Benefit to Others. The representations, warranties,
covenants and agreements contained in this Agreement are for the sole benefit of
the parties hereto and their heirs, executors, legal representatives, successors
and permitted assigns, and they shall not be construed as conferring and are not
intended to confer any rights on any other persons.
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8.8. Entire Agreement; Amendments. This Agreement, together
with any documents referred to herein, sets forth the entire agreement of the
parties hereto with respect to transactions contemplated hereby and supersedes
and replaces any prior written or oral agreements relating thereto. This
Agreement may only be amended or modified by a subsequently dated writing signed
by all parties hereto.
8.9. Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof. An item disclosed in a Schedule in response to one Section or
subsection of this Agreement shall not be deemed disclosed in response to any
other Section or subsection unless otherwise specifically provided in this
Agreement.
8.10. Cooperation. Subject to the provisions hereof, the
parties hereto shall use commercially reasonable efforts to take or cause to be
taken such actions to execute and deliver or cause to be delivered such
additional documents and instruments, and to do or cause to be done all things
necessary, proper or advisable under the provisions of this Agreement and under
applicable Law to consummate and make effective the transactions contemplated by
this Agreement.
8.11. Severability. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which is an original and all of which together shall
be deemed to be one and the same instrument. This Agreement shall become binding
when one or more counterparts taken together shall have been executed and
delivered by all of the parties. It shall not be necessary in making proof of
this Agreement or any counterpart hereof to produce or account for any of the
other counterparts.
8.13. Representation By Counsel; Interpretation. The parties
hereto each acknowledge that each party to this Agreement has been represented
by counsel in connection with this Agreement and the transactions contemplated
by this Agreement. Accordingly, any rule of law, or any legal decision that
would require interpretation of any claimed ambiguities in this Agreement
against the party that drafted it has no application and is expressly waived.
8.14. No Contribution; Indemnity. Sellers shall have no right
of contribution, indemnity or other similar right against the Company whatsoever
with regard to claims asserted by Buyer pursuant to this Agreement or amounts
payable thereunder.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement by persons thereunto duly authorized as of the date first written
above.
BUYER:
AMVESTORS FINANCIAL CORPORATION
By: s/ Mark V. Heitz
------------------------------
Title: President & CEO
COMPANY:
CREATIVE MARKETING INTERNATIONAL
CORPORATION
By: s/ Ronald S. Essary
------------------------------
Title: President
SELLERS:
s/ Ronald S. Essary s/ Bradley B. Smith
- ------------------------- ----------------------------------
Ronald S. Essary Bradley B. Smith
s/ Michael R. Tripses s/ Philip A. Poje
- ------------------------- ----------------------------------
Michael R. Tripses Philip A. Poje
s/ William H. Moneymaker
- -------------------------
William H. Moneymaker
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