Attached files
AGREEMENT OF
SALE
AGREEMENT OF SALE,
made December 31, 2008 between (Leeward Group, Inc., a Delaware
corporation and its wholly owned subsidiaries Sangamon Associates, Inc., a New
Jersey corporation, Flagship Insurance Agency, Inc., et al., having an address
at 414 County Street, New Bedford MA 02740 (“Purchaser”), and Brady-Rogers Inc.
a Rhode Island corporation, having an address at 1935 Elmwood Avenue Warwick RI
02888 (“Seller”).
WITNESSETH
WHEREAS, Purchaser desires to
acquire, and Seller desires to sell, the assets of the business known as
Brady-Rogers hereinafter specified, upon the terms and conditions hereinafter
set forth, and
NOW, THEREFORE, in
consideration of the covenants and agreements hereafter set forth, and other
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Agreement
to Sell. This is an asset purchase only and Purchaser is not
and will not assume any liabilities of the Seller other than those explicitly
stated in Exhibit I. Seller agrees to sell, transfer and deliver to
Purchaser, and Purchaser agrees to purchase, upon the terms and conditions
hereinafter set forth, the following assets of the business known as
Brady-Rogers (collectively, the “Assets” or “Business Assets”):
(a) The
supplies, furniture, equipment, fixtures and improvements described in Exhibit D
herein and all similar items acquired or owned by the business on or before the
closing date as the same shall exist on the closing date.
(b) The
entire book of business (including all books and records and renewal rights) of
all property and casualty and life, accident and health and any other insurance
business of the Seller thereof (the “Business”).
(c) The
goodwill of the business.
(d) The
trade name(s) associated with the business; all websites; as well all telephone
numbers and listings, as more fully described below at section (9) and Exhibit
G.
2. Purchase
Price. The purchase price to be paid by Purchaser for the
Assets of the Business (as described in section “1”, supra) is Seven Hundred
Fifty Thousand and 00/100 Dollars ($750,000.00), this is based on 2 times a
minimum of Three Hundred Seventy Five Thousand and 00/100 Dollars ($375,000.00)
of commission revenue, payable as follows:
(a)(i)
One Hundred Twenty Five Thousand and 00/100 Dollars ($125,000.00) to
be paid to Seller at the time and place of closing; (ii) Twenty Five Thousand
Dollars and 00/100 Dollars ($25,000.00) to be paid on December 31, 2009 or the
One Year anniversary date of the closing of this Agreement; and (iii) the
balance of Six Hundred Thousand Dollars and 00/100 ($600,000.00) to
be paid to Seller as follows: a) Twenty Five Percent (25%) of
commissions received by the Buyer from insurance companies for which the
Business was placed for the next 12 months following the closing, paid
1
quarterly
commencing 90 days after the closing of this Agreement with the first quarterly
payment to be made April 15, 2009; b) Thirty Percent (30%) of commissions
received by the Buyer from the insurance companies for which the Business was
placed for the ensuing 36 months following the closing to be paid quarterly
commencing on April 15, 2010. Final Payment, if any, of the balance
due to be paid on April 15, 2013, whereas the “Final Payment” is defined as the
difference between the amount due in 2(a)(iii) and the total amount of payments
made pursuant to 2(a)(iii), 2(b), 2(c), 2(d) and 2(e).
(
b) The Buyer further
agrees to pay the Seller Fifty Percent (50%) of the profit contingency income
received from the book of Business acquired herein during the Four year payout
period, provided the Buyer receives any such profit contingency income on the
book of Business.
(c)
Security Interest In Receivables: With respect to the periodic
quarterly payments owed by Purchaser to Seller as detailed in paragraph
“2(a)(iii)”, in the amount of Six Hundred Thousand Dollars and 00/100
($600,000.00), as collateral security for said stated obligations, Purchaser
grants the Seller a security interest on the Assets acquired herein subordinate
to any bank or financial institution.
(d)
Adjustments to Payout. Payments pursuant to Section 2(a)ii are contingent
upon the minimum commission revenue of the Assets acquired to be in excess of
Three Hundred Seventy Five Thousand Dollars 00/100 ($375,000.00) for the most
recent 12 month period of the payment. In the event that the book of
Business is less than said amount, the payments will be reduced by 2 times the
difference of current twelve months and $375,000.00 and further divided by the
number of quarters remaining in the payout as per Section
2(a)(iii).
(e)
Life Insurance The Buyer will purchase a 5-year term life
insurance policy with a face amount of Five Hundred Thousand Dollars and 00/100
($500,000.00) on each individual (Jay Rogers and Merridythe
Rogers). Further, these individuals will be named as contingent
beneficiaries for the difference between the policy face amount and the balance
of the amount owed Seller pursuant to Section 2(a)(iii).
3. Acceptable
Funds. All money payable under this agreement, unless
otherwise specified, shall be paid either: (a) in cash, but not more than
$1,000.00 shall be paid in cash; (b) by good certified check of Purchaser, or
official check of any bank, savings bank, trust company, or savings and loan
association which is a member of the New York Clearing House, payable to the
direct order of Seller; (c) wire transfer or (d) as otherwise agreed to in
writing by the parties or their attorneys.
4. The
Closing. The “closing” means the settlement of the obligations
of Seller and Purchaser to each other under this agreement, including the
payment of the purchase price to Seller as provided in Article 2 hereof and the
delivery of the closing documents provided for in Article 5
hereof. The closing shall be held at the offices of Seller at 10:00
a.m. on or about December 31, 2008 (the “closing date”).
2
5. Effective
Date of Transfer of Business and Obligations, and Rights to Commissions and
other Business Income. All of the
Seller’s Assets conveyed under the terms of this Agreement shall be transferred
as of the closing date. With respect to those Assets consisting of
commission income, fees, and any other income streams earned by the Seller in
the ordinary course of operating the brokerage, said assets shall be conveyed
pursuant to the following procedures:
|
A.
|
For
“agency bill” policies (which are defined as policies written by the
business/brokerage where premiums – including earned commission – are
billed for by and/or are collected directly by the business/brokerage),
the policy inception date will be deemed the day on which the policy was
written, and Purchaser shall be entitled to all agency bill commissions
for policies (by whomever written) with an inception date on or subsequent
to the closing date. For Agency billed policies, for which the Seller has
received full payment of its commission prior to the closing date, for a
period of 120 days after closing any cancellations in which commissions
were paid to Seller shall be offset against payment due as stated in
section 2(a)(.iii).
|
|
B.
|
Purchaser
shall be entitled to all commissions for “direct bill” policies (which are
defined as policies written by the business/brokerage where premiums –
including earned commissions – are billed for and/or are collected
directly by the insurance company with whom the policy was placed), or
other positive statement balances associated with direct bill Policies (by
whomever written) for all policies with an inception date on or subsequent
to the Closing Date.
|
|
C.
|
Purchaser
shall be entitled to all policy fees (including but not limited to all
copy fees, administrative fees, broker fees, specialty fees, MVR fees,
etc.) for all policies (by whomever written) that are received by Seller
or Purchaser from any person on or after the closing date. If
Purchaser becomes aware of any commissions paid to Seller but otherwise
owed to Purchaser as described above, Purchaser may offset any amounts due
Seller pursuant to paragraph 2(a)(iii), if any, or Purchaser may demand
reimbursement from Seller, in which case Seller agrees to fully and
promptly reimburse Purchaser.
|
|
D.
|
The
Purchaser shall pay to the Seller the profit contingency bonus paid by
insurance companies for the Business produced in the calendar year 2008
with those insurance companies that Seller was appointed with prior to the
acquisition. Any and all such bonuses earned as a result of
policies/risks written by Seller prior to the Closing Date shall be the
property of Seller and payable to Seller by Purchaser if received by
Purchaser after the Closing Date. In the event that the
insurance company does not pay a bonus for business written in 2008, the
Purchaser shall have no further obligation to the Seller for any profit
contingency income on business bound prior to the
acquisition.
|
|
E.
|
Seller
shall be liable for all debts, premiums, claims, statement balances
incurred prior to the closing date, and other obligations incurred prior
to the closing date. All account receivables for policies
written prior to the closing date shall remain the separate property of
the Seller, although such account receivables will be collected by
Purchaser. Purchaser will promptly remit balances due Seller,
provided that Seller pays all debts, premiums, claims, statement
balances dated prior to the closing date, and other obligations
incurred prior to closing date. Seller acknowledges that the
value of the assets sold pursuant to this Agreement might be diminished if
Seller does not promptly pay its obligations to Customers, Companies
and/or other Persons for agency related expenses, including without
limitation, the net policy premiums (or return premiums) on policies
written (or cancelled) prior to the closing date. As such, if
Purchaser becomes aware that any such pre-closing agency related expenses
have not been paid when due, then Purchaser may elect, but is not
obligated, to pay any such amounts on behalf of Seller, in which event, at
Purchaser’s sole option, Purchaser may offset any amounts due Seller
pursuant to paragraph 2(a)(iii), if any, or Purchaser may demand
reimbursement from Seller, in which case Seller agrees to fully and
promptly reimburse Purchaser.
|
3
|
F.
|
Purchaser,
on behalf of Seller, will attempt to collect all funds, including all
accounts receivable, owed to Seller for any policies written prior to the
closing date. Seller shall appoint Purchaser as its attorney in
fact to endorse checks made payable to Seller by policy owners, Companies
or other Persons by executing a limited power of attorney for such
purpose, which is attached hereto as Exhibit H and incorporated herein by
this reference. Any funds collected by Purchaser for the Seller
will be remitted to Seller on a monthly basis, net of any outstanding
pre-closing debts, premiums, claims, or statement balances reflected on
Company statements dated prior to the closing date, and other pre-closing
unsatisfied obligations for which Seller is responsible pursuant to this
Agreement.
|
|
G.
|
Accompanying
each such monthly payment to Seller shall be a simple accounting of income
received, and liabilities (if any) deducted, with supporting
documentation. For no less than a period of One Hundred Twenty
(120) days after closing, Purchaser shall provide Seller with access to
monthly agent statements for the specific purpose of verifying the amount
of “agency billed” premiums deposited to Purchaser’s receipt trust account
which may be due Seller for agency bill Policies written prior to the
closing date and attributable to Policies that are part of the book of
business sold pursuant to this Agreement. Such access shall be
upon reasonable request, and during such times and upon such conditions as
shall not unreasonably impair the operations of
Purchaser. Seller agrees to respect the confidential nature of
such information. Seller agrees that in the event there are
outstanding debts, premiums, return premiums, claims, statement balances
and/or other obligations on Policies written prior to the closing date,
Purchaser, at its sole discretion, may offset any amounts collected
pursuant to this paragraph 5 from amounts owed to Seller pursuant to this
paragraph 5. In the event such amounts collected are
insufficient to satisfy any outstanding debts, premiums, return premiums,
claims, statement balances and/or other obligations on Policies, at
Purchaser’s sole option, Purchaser may offset any remaining amounts due
Seller pursuant to paragraph 2(d), if any, or Purchaser may demand
reimbursement from Seller, in which case Seller agrees to fully and
promptly reimburse Purchaser.
|
|
H.
|
|
For
120 days after the closing date Seller shall be responsible for payment to
Purchaser of commissions on any reduction of premiums which result from
policy cancellations for any policies Seller produced, and which are
reflected on any Company statement dated after the closing
date. After the closing date, Seller shall be responsible for
any additional amounts due Customer, Companies or other Persons which
result from policy cancellations, policy endorsements, or policy audits
for policies which are reflected on any Company statement dated prior to
(or first recorded on Company statements dated prior to) the closing
date. Any adjustment pursuant to Section 6(H), will be subject
to a minimum aggregate threshold of One Thousand Dollars ($1,000.00) once
this limit has been exceeded then adjustments will be
effected.
|
4
|
I.
|
|
Seller
shall remit to Purchaser on the closing date any funds received by Seller
for Policies written on or subsequent to the closing
date.
|
|
J.
|
|
Purchaser
shall be entitled to all profit sharing commissions, bonus commissions,
performance compensation, prizes and trips, advertising allowances or
override commissions on policies produced or written on or after the
closing date which might be received by Seller or Purchaser after the
closing date, except as provided for in Section
5(D).
|
6. Closing
Documents. At the closing Seller shall execute and deliver to
Purchaser:
(a) A
Bill of Sale substantially in the form of Exhibit B hereto.
(b) Assets
free and clear of all encumbrances.
(c) Such
other instruments as may be necessary or proper to transfer to Purchaser all
other ownership interests in the Assets to be transferred under this
agreement.
7. Closing
Adjustments. The following items shall be apportioned as of
midnight of the day preceding the closing date, where applicable: any error or
omissions in computing commissions shall be corrected after the
closing. This provision shall survive the closing.
8. Use of
Purchase Price to Pay Encumbrances. If there is any lien or
encumbrance against Assets, or anything else affecting this sale, which Seller
is obligated to pay and discharge at the closing, Seller may use any portion of
the balance of the purchase price to discharge it, or Seller may allow to
Purchaser the amount thereof as a credit at the closing. Purchaser
agrees to provide separate certified checks as reasonably requested to assist in
clearing up these matters.
9. Use of
Names and PO Box and Telephone Numbers. As a result of the
sale contemplated herein, the Purchaser shall on and after the date of closing
be entitled to the use of the Seller’s name and trade names described in
paragraph 1 hereof and listed on Exhibit G attached
hereto. Furthermore, the Seller shall not use or authorize anyone
else to use said name or trade names. The Purchaser shall acquire all
rights to the telephone listings, telephone numbers, telefax numbers, email
addresses, websites, physical addresses, and post office boxes listed under
Seller’s or said trade names. The Seller will provide the Purchaser
with the corporate resolution for the name change from Brady-Rogers, Inc.
to______________________,
within 90 days of closing.
5
10. Compliance
with all Applicable New Jersey State Insurance Laws, Insurance Department Rules
and regulations, Purchaser represents that it is an insurance broker duly
licensed in New Jersey to act as such, in good standing with the New Jersey
State Department of Insurance. Purchaser also represents to Seller
that it is duly authorized to open, maintain and monitor a trust/escrow/premium
account pursuant to applicable State laws and regulations. To that
end, at the time of closing Purchaser shall show proof of the existence of an
appropriate trust/escrow/premium account, and shall transfer as allowed by law
all funds held in trust by Seller for the benefit of insureds or insurers into
Purchaser’s account, unless to do so at the time of closing is contrary to
Insurance Department laws or rules. In such a case, from the point of
closing forward all new funds properly belonging in such a trust/escrow/premium
account for new business written by Purchaser’s new licensee shall be deposited
into Purchaser’s trust/escrow/premium account, and Seller shall maintain its
existing account until all trust/escrow/premium funds therein are dispersed to
the appropriate payees. From and after the date of closing Seller
shall have no liability for any irregularities in Purchaser’s
trust/escrow/premium accounts, and in the event of any disciplinary inquiry,
hearing or enforcement by the Department of Insurance arising from any
post-closing transactions or irregularities, Purchaser agrees to defend,
indemnify and hold harmless Seller from any all costs, liabilities, and damages
arising from same, including but not limited to attorneys fees and fines and
penalties.
11. Representations
and Warranties of Seller. Seller represents and warrants to
Purchaser as follows:
(a) Seller
is a corporation duly organized and validly existing under the laws of Rhode
Island, and is duly licensed as an insurance broker in RI, MA, and
CT. Seller has full power and authority to conduct its business as
now carried on, and to carry out and perform its undertakings and obligations as
provided herein.
(b) No
action, approval, consent or authorization of any government authority is
necessary for Seller to consummate the transactions contemplated hereby, except
to the extent that applicable laws might require seller to notify the Rhode
Island Insurance Department of a change of address or status as
licensee.
(c) Seller
is the owner of and has good and marketable title and /or rights of ownership to
the Assets, free of all liens, claims and encumbrances, except as may be set
forth herein.
(d) There
are no violations of any law or governmental rule or regulations pending against
Seller or the Assets hereto.
(e) There
are no judgments, liens, suits, actions or proceedings pending against Seller or
the Assets except as disclosed in Exhibit J.
6
(f) Seller
owns the rights to the insurance expirations and these are delivered with good
title.
(g) Seller
will use its best efforts to assist the Purchaser with transferring the
Insurance Company Appointments to the Purchaser.
|
(h)
|
Seller has had no material adverse changes in its
business.
|
(i) Seller
and Jay F. Rogers and Merridythe Rogers, individually (collectively, the
“Selling Parties”)agree that they will
not engage directly or indirectly in the business of selling Policies in or
within a fifty (50) mile radius of 1935 Elmwood Avenue, Warwick, RI for a period
of three (3) years from and after the closing date except as an employee or
broker for the Purchaser. Selling Parties further agree that for a
period of five (5) years from and after the termination of Jay Rogers or closing
date whichever is greater, they will not directly or indirectly solicit or write
Policies for any customers that are a part of the book of business sold pursuant
to this Agreement and will not directly or indirectly attempt to divert any
customer that is a part of the book of business sold pursuant to this Agreement
from continuing to do business with Purchaser. In addition, Selling
Parties agree not to make any disparaging statements about Purchaser, its
assigns or the Agency Assets. Selling Parties agree not to provide
any customer lists, customer records, customer files, customer renewal or
expiration lists, or other confidential information regarding the Customer
Accounts sold pursuant to this Agreement to any Person without Purchaser’s prior
written consent. Finally, Selling Parties agree that they will not,
for a period of two (2) years following the closing date, directly or
indirectly, solicit any of the producers or employees associated with the Agency
Assets to work for or contract with Seller. The parties acknowledge and agree
that the period associated with any of the restrictive covenants contained in
this paragraph 11(i) shall be suspended during any period of violation and/or
any period of time required to enforce this covenant by settlement, mediation,
arbitration, litigation, threat of arbitration or threat of litigation.
Moreover, Selling Parties agree that violation of the covenants set forth in
this paragraph 11(i) will cause Purchaser irreparable harm and Purchaser shall
be entitled to the immediate issuance of a temporary restraining order for any
violations hereof. The parties also acknowledge that the covenants
set forth in this paragraph 11(i) are material to this agreement, that the
covenants contained in this paragraph 11(i) are reasonable and necessary, and
that Seller has received sufficient and adequate consideration for
same.
12. Representations
and Warranties of Purchaser. Purchaser represents and warrants
to Seller as follows:
(a) Purchaser
is a corporation duly organized and validly existing under the laws of New
Jersey. Purchaser has full power and authority to carry out and
perform its undertakings and obligations as provided herein, including the legal
right and capacity to open and maintain a trust/escrow/premium account as
described in section “10’, supra.. The execution and delivery by
Purchaser of this agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Board of Directors of
Purchaser and will not conflict with or breach any provision of the Certificate
of Incorporation or by-laws of Purchaser.
7
(b) No
action, approval, consent or authorization of any governmental authority is
necessary for Purchaser to consummate the transactions contemplated
hereby.
(c)
There are not judgments, liens, suits, actions or proceedings pending or, to the
best of Purchaser's knowledge, threatened against Purchaser or its property that
would preclude such agreement.
13. No Other
Representations. Purchaser acknowledges that neither Seller
nor any representative or agent of Seller has made any representation or
warranty (expressed or implied) regarding the Assets or the business, or any
matter or thing affecting or relating to this agreement, except as specifically
set forth in this agreement. Seller shall not be liable or bound in
any manner by any oral or written statement, representation, warranty, agreement
or information pertaining to the Assets or the business or this
agreement. Purchaser has inspected the Assets, Purchaser agrees to
take the Assets “as is” and in their present condition, subject to reasonable
use, wear, tear and deterioration between now and the closing date.
14. Conduct
of the Business. Seller, until the closing, shall conduct the
business in the normal, useful and regular manner.
Unless
and until the closing shall take place, Purchaser shall hold in confidence all
information obtained in connections with this agreement, and, if for any reason
the closing shall not take place, Purchaser shall return to Seller all documents
received hereunder.
15. Income
and Expenses Before and After the Closing. Except as set forth
in Section 5(A)(B)(C)(D)(E)(F)(G)(H)(I)(J) or otherwise provided in this
agreement, Seller shall be liable for the payment of all bills for payroll,
accrued vacations, merchandise, goods, services, utilities, inventory delivered
to the business, and any other liability incurred before the closing; and
Purchaser shall be liable for the payment of all bills for payroll, vacation,
merchandise, goods, services, utilities and inventory delivered to the business,
and any other liability, incurred on or after the date of closing.
The
provisions of this Article shall survive the closing.
16. Conditions
to Closing: The obligations of the parties to close hereunder
are subject to the following conditions:
(a) All
of the terms, covenants and conditions to be complied with or performed by the
other parties under this agreement on or before the closing shall have been
complied with or performed in all material respects.
(b) All
representations or warranties of the other parties herein are true in all
material respects as of the closing date.
(c) On
the closing date, there shall be no liens or encumbrances against the
Assets.
8
17. Risk of
Loss The risk of loss to the assets of the business sold
hereunder, until the closing, is assumed and shall be borne by
Seller.
18. Default (a) In the event that
the Purchaser shall fail to pay the amount due on the date of closing as
described in paragraph 2(a)(i). In said event, this Agreement shall
thereafter be null and void.
(b) In
the event that the Purchaser shall fail to make any of the installment payments
described in paragraph 2(a)(i)(ii)(iii) hereof within fifteen (15) days of the
payment due date, then the Seller, or their authorized agents, shall give
written notice of such default to the Purchaser at the address shown
hereinafter. In the event Purchaser fails to cure its default within
thirty (30) days, Seller shall be entitled to exercise the rights and remedies
available to Seller allowed by applicable law.
19. Brokerage. The
parties hereto represent and warrant to each other that they have not dealt with
any broker, consultant or finder in connection with this agreement or the
transactions contemplated hereby, and no other consultant or any other person is
entitled to receive any brokerage commission, finder's fee, advisory fee or
similar compensation in connection with this agreement or the transactions
contemplated hereby. Each of the parties shall indemnify and hold the
other parties harmless from and against all liability, claim, loss damage or
expense, including reasonable attorney's fees, pertaining to any other broker,
finder or other person with whom such party has dealt. The provisions of this
Article 19 shall survive the closing.
20. Assignment. It
is agreed that Purchaser has the unconditional right to assign or transfer any
or all of Purchaser’s rights and obligations obtained or incurred pursuant to
this agreement to a qualified assignee or purchaser capable and having financial
resources to honor all commitments contained herein, as may be determined by
Purchaser. In the event of any such assignment or transfer, Purchaser
hereby guaranties all payments due Seller under the terms of this
Agreement.
21. Notices. All
notices, demands and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been properly given if
delivered by hand or by Federal Express courier or by registered or certified
mail, return receipt requested, with postage prepaid, to Seller or Purchaser, as
the case may be, at their addresses first above written, or at such other
addresses as they may designate by notice given hereunder. Copies of
all such notices, demands and other communications simultaneously shall be given
in the aforesaid manner to Seller's attorney57 Benjamin Reynolds Road,
West Greenwich RI and to Purchaser, Sangamon Associates, Inc. 414 County
Street New Bedford, MA 02740. The respective attorneys or
representatives for the parties hereby are authorized to give any notice
required or permitted hereunder and to agree to adjournments of the
closing.
22. Survival. None
of the representations, warranties, covenants, or other obligations of Seller
hereunder shall survive the closing, except as expressly provided herein and
then only for a period of one year from the closing date. Acceptance
of the Bill of Sale by Purchaser shall be deemed full and complete performance
and discharge of every agreement and obligations on the part of Seller
hereunder, except those, if any, which expressly are stated herein to survive
the closing, and then such survival shall be only for a period of one
year.
9
23. Entire
Agreement. THIS AGREEMENT CONTAINS ALL OF THE TERMS AGREED
UPON BETWEEN SELLER AND PURCHASER WITH RESPECT TO THE SUBJECT MATTER
HEREOF. THIS AGREEMENT HAS BEEN ENTERED INTO AFTER FULL
INVESTIGATION. ALL PRIOR ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS,
PROMISES, UNDERSTANDINGS, LETTER OF INTENT AND AGREEMENTS OF SELLER AND
PURCHASER ARE MERGED INTO AND SUPERSEDED BY THIS AGREEMENT, WHICH ALONE FULLY
AND COMPLETELY EXPRESSES THEIR AGREEMENT.
24. Changes
Must be in Writing. No delay or omission by either Seller or
Purchaser in exercising any right shall operate as a waiver of such right or any
other right. This agreement may not be altered, amended, changed,
modified, waived or terminated in any waiver by any party of any waiver or any
breach hereunder shall be deemed a waiver of any other or subsequent
breach.
25. Captions
and Exhibits. The captions in this agreement are for
convenience only and are not to be considered in construing this
agreement. The Exhibits annexed to this agreement are an integral
part of this agreement, and where there is any reference to this Agreement it
shall be deemed to include said Exhibits.
26. Governing
Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey. If any
provisions of this agreement shall be unenforceable or invalid, such
enforceability or invalidity shall not affect the remaining provisions of this
agreement.
27. Binding
Effect. This agreement shall not be considered an offer or an acceptance
of an offer by Seller, and shall not be binding upon Seller until executed and
delivered by both Seller and Purchaser. Upon such execution and
delivery, this agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns.
28. Hold
Harmless Guaranty. (a) Seller hereby agrees and promises
to indemnify, defend and hold Purchaser harmless for any and all liability that
may arise by reason of Seller's or Seller's owner’s, directors, officers,
employees and independent contractors negligence or failure to renew, issue or
otherwise service any policy prior to the date of closing, it being agreed that
any liability for such errors and omissions in the transaction of business shall
vest solely with Seller. Further, Seller hereby agrees and promises
to indemnify, defend and hold Purchaser harmless from and against any and all
claims made by any Person for Seller’s, Seller’s owners, directors, officers,
employees and independent contractors actions and/or inactions prior to the
closing date.
(b)
Purchaser hereby agrees and promises to hold Seller harmless for any and all
liability that may arise by reason of Purchaser’s or Purchaser’s owners,
directors, officers, employees and independent contractors negligence or failure
to renew, issue or otherwise service any Policy on or after the date of closing,
it being agreed that any liability for such errors and
10
omissions
in the transaction of business shall vest solely with Purchaser. Further,
Purchaser hereby agrees and promises to indemnify, defend and hold Seller
harmless from and against any and all claims made by any Person or entity for
Purchaser’s, or Purchaser’s owners, directors, officers, employees and
independent contractors actions and/or inactions on or after the closing date,
including but not limited to any fines and penalties assessed or levied by the
Department of Insurance arising from any conduct of the Purchaser.
29. Mediation Any
issue, claim or dispute that may arise out of or in connection with this
Agreement (including any exhibits, addenda or other document executed in
connection herewith) and which Purchaser and Seller are not able to resolve
themselves by negotiation, shall be in the first instance submitted to mediation
in a manner agreed to by Purchaser and Seller. Purchaser and Seller
agree to use mediation to attempt to resolve such issue, claim or dispute prior
to filing any legal proceedings in court. Purchaser and Seller will
select an independent mediator agreeable to both parties. The
mediator will communicate with the parties to arrange and convene the mediation
process that will be most efficient, convenient and effective for both
parties. The costs of the mediation and fees of the mediator will be
borne equally by Purchaser and Seller. The parties will cooperate
with the mediator in coming to a reasonable agreement on the mediation
arrangements which will include the time and place for conducting the mediation,
who will attend or participate in the mediation and what information and written
material will be exchanged before the mediation. The mediation will
be conducted at a place agreeable to both Purchaser and Seller.
30. Legal
Fees In the Event of Litigation. In the event that
any legal proceeding is brought with respect to this Agreement, the prevailing
party shall be entitled to be reimbursed for and/or have judgment for all of
their costs and expenses, including reasonable attorney's fees and legal
expenses.
IN WITNESS WHEREOF, the
parties have executed this agreement the date first above written.
ATTEST:
SANGAMON
ASSOCIATES, INC.
/s/ Kevin
M.
Coughlin /s/
William F. Cleave
By: Kevin M.
Coughlin By:
William F. Cleave
Chief
Executive
Officer
President
ATTEST:
BRADY-ROGERS,
INC.
/s/
Merridythe
Rogers
Jay R. Rogers
By: Merridythe
Rogers
By: Jay R. Rogers
Secretary
President
11
EXHIBIT
A. to Agreement for Purchase of Agency Assets
AGREEMENT
NOT TO SOLICIT OR COMPETE, DISPARAGE, ETC.
The
undersigned agree(s) to and is (are) bound by the covenants/representations set
forth in paragraph 11(i) of this Agreement herein and specifically acknowledge
that the covenants contained in said paragraph are assignable and are reasonable
and necessary and that the undersigned has received ample consideration for
same.
/s/ Jay F. Rogers
By: Jay F. Rogers,
individually
/s/ Merridythe Rogers
By: Merridythe Rogers,
individually
12
Exhibit B
to Agreement for Purchase of Agency Assets
BILL
OF SALE
Now on
this ___ day of ________________, 2008, for good and valuable consideration, the
receipt of which is hereby acknowledged, Brady-Rogers, Inc., as Seller, hereby
sells, transfers, assigns and conveys unto Sangamon Associates, Inc., as
Purchaser, all of the Seller's right, title and interest in and to the Agency
Assets carried under the name of Brady-Rogers Inc.., or any variation thereof,
located at and used in the agency operations located at 1935 Elmwood Ave.,
Warwick RI. Such sale shall consist of and include Seller’s: general
“book of insurance business”; all customer accounts associated with all Policies
related to Insurance Services, Investment Services, Banking Services and Credit
Services; goodwill; all electronic and paper customer lists; all electronic and
paper customer records; all electronic and paper customer files; all customer
renewals; all telephone numbers, post office boxes, addresses, trade names;
websites and email addresses, all sweep accounts and other business related bank
accounts; and all other intangible assets associated with Seller’s
agency. Such sale shall also include the office equipment and other
personal property specifically identified on the listing attached
hereto.
All
assets are hereby conveyed unto Purchaser, free and clear of any claims, liens,
taxes and encumbrances whatever.
SELLER
/s/ Jay F. Rogers
Name: Jay
F. Rogers
Title: President
State of
______________________ )
County
of ____________________ )
Be it
remembered that on this ___ day of ____________________, 2007 , before me, a
Notary Public, in and for the County and State aforesaid, appeared Jay F. Rogers
who is known to me and who executed the above and foregoing Bill of
Sale.
______________________________
Notary Public
My
Commission Expires: ______________________
13
Exhibit
C. to Agreement for Purchase of Agency Assets
TRANSFER
LETTER
(Date)
ATTENTION: Agency
Licensing / Agency Contracting / Marketing Department / Underwriting Department
/ Accounting Department
Re: Transfer
of Brady-Rogers, Inc. (Agency Code No. ______ )
To Whom
It May Concern:
Be
advised that Brady-Rogers, Inc. of
Warwick RI has sold its agency assets to Sangamon Associates, Inc.
effective on December 31, 2008. Please route this transfer letter to
the proper department so that the agent of record for the policies assigned to
Brady-Rogers, Inc. will be transferred to Sangamon Associates, Inc.
The
following information about Sangamon Associates, Inc. is provided to expedite
the process:
Primary
Contact William
F. Cleave
Voice Phone
Number 508
994 9688
Fax Phone
Number 508
991 5461
Email
Address
bcleave@flagshipins.com
Street
Address:
414 County Street
City,
State and Zip
Code: New
Bedford, MA 02740
Tax Identification
Number:
Sangamon
Associates, Inc. accepts transfer of the referenced policies.
Thank you
for your time and attention to this matter.
/s/ Jay
Rogers
By: Jay
Rogers
Title:
President
14
Exhibit D
to Agreement for Purchase of Agency Assets
LISTING
OF OFFICE EQUIPMENT AND OTHER PERSONAL PROPERTY
|
|
1. All
tangible assets too numerous to mention, affixed to the property or not,
located at the Seller's agency facilities or associated with Seller's
agency operations at 1935 Elmwood Ave., Warwick RI. Such assets
include but are not limited to fax machines, phones, websites and email
addresses, typewriters, copiers, printers, supplies, office furniture,
appliances, office equipment, cameras, and office
decorations.
|
The above
listing specifically identifies the office equipment and personal property which
are a part of the assets being sold pursuant to our Agreement and further
identifies the office equipment and personal property specifically excluded from
the assets being sold. Seller agrees that any office equipment and
personal property not specifically excluded herein shall be construed as office
equipment and personal property which are part of the assets being sold pursuant
to this Agreement.
Seller:
Purchaser:
/s/
Jay F.
Rogers /s/
William F. Cleave
By: Jay F.
Rogers By:
William F. Cleave
Title:
President
Title: President
/s/ Kevin M. Coughlin
By: Kevin M. Coughlin
Title: Chief Executive
Officer
15
Exhibit E
to Agreement for Purchase of Agency Assets
AFFIDAVIT
STATE OF
________________ )
COUNTY OF
______________ )
COMES
NOW, the undersigned, having first been duly sworn on oath, states and alleges
as follows:
|
|
1.The
undersigned is sufficiently familiar with insurance industry accounting
processes to understand what documents are required by Brady-Rogers, Inc.
to verify commissions from independent sources such as insurance companies
and managing general agents and these documents are
attached.
|
|
|
2.The
attached documents are originals or copies certified by the undersigned to
be accurate representations of the originals. The attached
documents are full and complete records and have not been
altered.
|
|
|
3.The
undersigned is not aware of any circumstances which would make the
attached documents unreliable for forecasting future
commissions. Such circumstances could include (a) the actual or
pending cancellation or non-renewal of policies which are not recorded on
the attached documents; (b) insurance company changes in underwriting,
organization, premiums or management; (c) the actual, pending or
threatened Company contract cancellation, whether written or verbal; or
(d) regulatory changes.
|
|
|
4.The
attached documents include full and complete statements for the following
listing of insurance companies and general agents for the period of _____,
_____ to ______, ______.
|
Dated:_________________
SEE ATTACHED LISTING
The
attached documents are originals or certified copies of original documents
necessary for Brady-Rogers, Inc.. to verify commissions from independent sources
pursuant to paragraph 10(B) of the Agreement and the undersigned hereby
certifies the attached to be accurate originals thereof or representations of
originals.
SELLER:
By:_______________________
Name: Jay
F. Rogers
Title: President
State of
______________________ )
County of
____________________ )
Be
it remembered that on this ____ day of _______________, 2006, before me, a
Notary Public, in and for the County and State aforesaid, appeared Jay F. Rogers
who is known to me and who executed the above and foregoing
Affidavit.
______________________________
Notary
Public
My
Commission Expires:______________
16
Exhibit F
to Agreement for Purchase of Agency Assets
LISTING
OF AGREEMENTS
NONE
The above
listing specifically identifies all written and verbal agreements that Seller
currently has, or has had during the past twelve (12) months, with licensed
producers, sub-producers, co-brokers, representatives, agents or other Persons
related to Seller’s Agency Assets.
Seller:
Purchaser:
/s/ Jay R.
Rogers
/s/ William F. Cleave
By: Jay R.
Rogers
By: William F. Cleave
Title:
President Title:
President
/s/ Kevin
M. Coughlin
By: Kevin M.
Coughlin
Title: Chief Executive
Officer
17
Exhibit G
to Agreement for Purchase of Agency Assets
LISTING
OF TRADE NAMES, ETC.
1. Trade
Names: Brady-Rogers
2. Business
addresses: 1935
Elmwood Ave., Warwick RI
3. Websites/Email
Addresses: www.bradyrogers.com
4. Telephone
and telefax
numbers:
404 461 4941 (telephone)
401
461 4943 (fax)
401 658 6164 (cell)
5. Former
owners: _________________________________
6. Secondary
Locations: NONE
7. Former
Locations:
NONE
8. Home
Address of
owner:
57 Benjamin Reynolds Road, West Greenwich RI
Seller
warrants and represents the above listing specifically identifies all trade
names Seller currently uses or has used; all locations at or from which Seller
conducts or has conducted agency business; all websites and email addresses; all
telephone and telefax numbers; Seller’s chief executive office if Seller
conducts business at more than one location; place of individual Seller’s
current and past places of residence (past five (5) years) and the period during
which Seller resided at such place; names of prior owners of any of the Agency
Assets; all sweep accounts and other business related bank accounts; and the
location of Agency Assets for preceding five (5) years.
Seller:
Purchaser:
/s/ Jay R.
Rogers
/s/ William F. Cleave
By: Jay
R.
Rogers
By: William F. Cleave
Title:
President
Title: President
/s/ Kevin
M. Coughlin
By: Kevin M.
Coughlin
Title: Chief Executive
Officer
18
Exhibit H
to Agreement for Purchase of Agency Assets
Amortization
Schedule
19
Exhibit
I. to Agreement for Purchase of Agency Assets
Liabilities
Assumed
1)
Scanner Canon DR 9080c $2,696.40, with 14 payments of
$192.60
2)
Copy/Fax Kyocera Mita KM 255 $3,474.18, with18 payments of $206.51
3) Sign
$6,041.52 , with 33 payments of $235.72
20
Exhibit
J. to Agreement for Purchase of Agency Assets
Legal
Claims and/or Judgments
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
The above
listing specifically identifies all judgments, claims including errors and
omissions insurance claims, liens, suits, actions, or proceeding pending,
settled or dismissed that Seller currently has, or has had during the past Five
(5) years, with any individual, company, corporation, limited liability company
or other such entity.
Seller:
Purchaser:
/s/ Jay R.
Rogers /s/
William F. Cleave
By: Jay
R.
Rogers
By: William F. Cleave
Title:
President Title:
President
/s/ Kevin
M. Coughlin
By: Kevin M. Coughlin
Title: Chief Executive
Officer
21