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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported):
April 27, 1998
SECURITY NATIONAL FINANCIAL CORPORATION
------------------------------------------
(Exact name of registrant as specified in this Charter)
Utah 0-9341 87-0345941
- ------------------------------- ------------- -------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification
No.)
5300 South 360 West, Suite 310
Salt Lake City, Utah 84123
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number,
Including Area Code: (801) 264-1060
Does Not Apply
----------------------------------------------
(Former name or former address, if changed since last report)
ITEM 2. Acquisition of Consolidare Enterprises, Inc.
On April 27, 1998, Security National Financial Corporation
(the "Company") entered into an Acquisition Agreement (the
"Agreement") with Consolidare Enterprises, Inc., a Florida
corporation, ("Consolidare") and certain shareholders of
Consolidare for the purchase of all of the outstanding shares of
common stock of Consolidare. Consolidare owns approximately
57.4% of the outstanding shares of common stock of Southern
Security Life Insurance Company, a Florida corporation ("SSLIC"),
and all of the outstanding shares of stock of Insuradyne Corp.,
a Florida corporation ("Insuradyne"). SSLIC is a Florida
domiciled insurance company with total assets of approximately
$82.1 million. SSLIC is currently licensed to transact business
in 14 states. SSLIC's total revenues for the year ended December
31, 1997 were $11,695,756. SSLIC had a net income of $195,000
for fiscal 1997.
As consideration for the purchase of the shares of
Consolidare, the Company will pay to the holders of Consolidare
common stock an aggregate of $11,356,400 plus an amount equal to
the current assets of Consolidare as of the closing date. For
purposes of the purchase consideration, current assets of
Consolidare are defined as cash and cash equivalents (with
interest earned through the closing date) and accrued commissions
due to Insuradyne from SSLIC. To pay the purchase consideration,
the Company intends to obtain approximately $6,500,000 from bank
financing, with the balance of approximately $4,856,400 to be
obtained from funds currently held by the Company. In addition
to the purchase consideration, the Company is required to cause
SSLIC to pay, on the closing date, $1,050,000 to George Pihakis,
who is currently President and Chief Executive Officer of SSLIC,
as a lump sum settlement of the executive compensation agreement
between SSLIC and Mr. Pihakis.
The closing of the Agreement is contingent upon regulatory
approvals, including the approval of the Florida Department of
Insurance and the Utah Insurance Department, compliance or waiver
of compliance under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, approval of the Agreement by the affirmative vote of
a majority of the Consolidare shareholders, with no Consolidare
shareholders exercising their rights as dissenting shareholders
under Section 607.1320 of the Florida statutes, as well as the
satisfactory performance of certain covenants and the accuracy of
the parties' respective representations and warranties at
closing. Following the closing of the Agreement, it is the
intention of the Company to merge a newly formed wholly-owned
subsidiary of Security National Life Insurance Company into
Consolidare, with the result that Security National Life
Insurance Company will then own 57.4% of the outstanding shares
of common stock of SSLIC. The Company further intends to
continue to operate SSLIC as a Florida domiciled insurance
company.
ITEM 7. Financial Statements.
C. Exhibits
10.1. Acquisition Agreement among Security National
Financial Corporation, Consolidare Enterprises, Inc. and certain
shareholders of Consolidare (including related exhibits).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
SECURITY NATIONAL FINANCIAL CORPORATION
(Registrant)
Date: May 11, 1998
By: Scott M. Quist
First Vice President, General Counsel
and Treasurer
ACQUISITION AGREEMENT
by and among
SECURITY NATIONAL FINANCIAL CORPORATION,
CONSOLIDARE ENTERPRISES, INC.,
and
THE SHAREHOLDERS WHO HAVE EXECUTED THE AGREEMENT
BY CERTAIN SHAREHOLDERS OF CONSOLIDARE ENTERPRISES, INC.
TO VOTE IN FAVOR OF MERGER IN THE FORM
ATTACHED AS ANNEX I.
April 24, 1998
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS . . . . . . .. . . . . . . . . . 2
1.1 Certain Terms Defined . . . . . . . . . . . . . . 2
ARTICLE 2 AGREEMENT TO MERGE, ETC.. . . . . . . . . . . 9
2.1 Agreement to Merge . . . . . . . .. . . . . . 9
2.2 Notice of Merger and Conversion
of CEI Common into Right to Receive Cash . . . 9
2.3 Payment of Cash and Surrender
of Certificates for CEI Common . . . . . . . 14
2.4 The Closing . . . . . . . . . . . . . . . . 15
2.5 Dissenting Shareholders . . . . . . . . . . 16
2.6 Covenants, Agreements, Etc. as
Conditions. . . . . . . . . . . . . . . . . 16
2.7 Effectiveness of Merger . . . . . . . . . . 16
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF CEI . . . 17
3.1 Subsidiaries, Joint Ventures, Etc. . . . . . 17
3.2 Organization and Qualification, Etc. . . . . 17
3.3 Articles of Incorporation and By-Laws . . . . 18
3.4 Capital Stock . . . . . . . . . . . . . . . . 18
3.5 Officers and Directors; Financial
Institution Accounts, Etc. . . . . . . . . . 19
3.6 Litigation . . . . . . . . . . . . . . . . . 20
3.7 Minute Books, Etc. . . . . . . . . . . . . 21
3.8 Authorization of Agreement . . . . . . . . . .21
3.9 No Conflict with Other Interests . . . . . . .22
3.10 Tax Returns . . . . . . . . . . . . . . . . . 22
3.11 Software Programs, Patents, Trademarks,
Servicemarks, and Copyrights . . . . . . . . .24
3.12 Compliance with Law . . . . . . . . . . . . . 25
3.13 Employee Benefit Plans. . . . . . . . . . . . 25
3.14 Labor . . . . . . . . . . . . . . . . . . . . 26
3.15 State Admissions. . . . . . . . . . . . . . . 26
3.16 Agency Arrangements . . . . . . . . . . . . . 27
3.17 Insurance Policies. . . . . . . . . . . . . . 27
3.18 Financial Statements. . . . . . . . . . . . . 27
3.19 Regulatory Filings. . . . . . . . . . . . . . 29
3.20 No Change in Insurance Practices. . . . . . . 29
3.21 Reserves. . . . . . . . . . . . . . . . . . . 29
3.22 Claims. . . . . . . . . . . . . . . . . . . . 30
3.23 Termination of Insurance. . . . . . . . . . . 30
3.24 Insurance-Related and Other Agreements. . . . 31
3.25 Absence of Contracts, Agreements, and Plans . 32
3.26 No Adverse Change . . . . . . . . . . . . . . 33
3.27 Casualties. . . . . . . . . . . . . . . . . . 33
3.28 Limitations on Companies. . . . . . . . . . . 34
3.29 Accounts, Notes, and Advances Receivable. . . 37
3.30 No Undisclosed Liabilities or Agreements. . . 37
3.31 Disclosure. . . . . . . . . . . . . . . . . . 38
3.32 Title to Properties; Liens; Conditions
of Properties. . . . . . . . . . . . . . . . .38
3.33 No Liability for Finders' or Financial
Advisory Fees. . . . . . . . . . . . . . . . .39
3.34 Environmental Matters . . . . . . . . . . . . 39
3.35 Information Set Forth in Any Schedule. . . . .41
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SNFC. . . . 41
4.1 Organization and Qualification, Etc. . . . . .41
4.2 Authority. . . . . . . . . . . . . . . . . . .42
4.3 Valid and Binding Obligations. . . . . . . . .42
4.4 No Violation of Charter, Etc.. . . . . . . . .42
ARTICLE 5 CONDUCT OF THE BUSINESS OF THE COMPANIES
PENDING THE MERGER. . . . . . . . . . . . . . . . 42
5.1 Conduct Business in Ordinary Course . . . . .43
5.2 No Change in Charter or By-Laws . . . . . . .43
5.3 No Change in Capitalization . . . . . . . . .43
5.4 No Dividends. . . . . . . . . . . . . . . . .43
5.5 No Change in Compensation . . . . . . . . . .43
5.6 No Contract Not in Ordinary Course. . . . . .44
5.7 No Changes in Personnel or Financial
Institutions . . . . . . . . . . . . . . . . .44
5.8 Maintenance of Property . . . . . . . . . . .44
5.9 Insurance . . . . . . . . . . . . . . . . . .45
5.10 Business Intact . . . . . . . . . . . . . . . 45
5.11 Insurance Policies and Agency Agreements. . . 45
5.12 Reinsurance . . . . . . . . . . . . . . . . . 45
5.13 Acquisition of Insurance. . . . . . . . . . . 45
5.14 No Capital Contributions. . . . . . . . . . . 46
5.15 Representations and Warranties. . . . . . . . 46
5.16 Necessary Action. . . . . . . . . . . . . . . 46
5.17 Best Efforts to Satisfy Conditions. . . . . . 46
5.18 Inconsistent Activities . . . . . . . . . . . 46
5.19 CEI Stockholders' Meeting . . . . . . . . . . 47
5.20 Access to Properties, Files, Etc. . . . . . . 47
5.21 Correspondence with Regulators. . . . . . . . 48
5.22 Hart-Scott-Rodino Filing. . . . . . . . . . . 49
ARTICLE 6 COVENANTS OF SNFC AND THE SHAREHOLDERS. . . . 49
6.1 Necessary Action. . . . . . . . . . . . . . . 49
6.2 Merger Consideration . . . . . . . . . . . . .49
6.3 Hart-Scott-Rodino Filing. . . . . . . . . . . 49
6.4 Shareholders to Vote in Favor of Merger. . . .49
ARTICLE 7 APPROVALS NEEDED FOR MERGER . . . . . . . . . 50
7.1 Insurance Regulatory Approvals. . . . . . . . 50
7.2 Hart-Scott-Rodino Antitrust
Improvements Act of 1976. . . . . . . . . . . 50
ARTICLE 8 CONDITIONS. . . . . . . . . . . . . . . . . . 51
8.1 Conditions Precedent to Obligations of SNFC . 51
8.2 Conditions Precedent to Obligations of CEI. . 57
ARTICLE 9 ACCESS TO INFORMATION . . . . . . . . . . . . 60
9.1 Pre-Closing Access . . . . . . . . . . . . . .60
9.2 Access to Accountant's Records . . . . . . . .61
9.3 Post-Merger Access . . . . . . . . . . . . . .61
ARTICLE 10 INDEMNIFICATION. . . . . . . . . . . . . . . .61
10.1 Indemnification by CEI . . . . . . . . . . . 61
10.2 Indemnification by SNFC. . . . . . . . . . . .62
10.3 Survival of Obligation to Indemnify. . . . . .62
10.4 Notice and Procedure . . . . . . . . . . . . .63
10.5 Limitation on Indemnification Obligations. . .65
10.6 Indemnification as Exclusive Remedy. . . . . .65
10.7 No Consequential Damages . . . . . . . . . . .65
ARTICLE 11 MISCELLANEOUS. . . . . . . . . . . . . . . . .66
11.1 Termination; Expenses. . . . . . . . . . . . .66
11.2 Noncompliance by SNFC; Termination by CEI . . 67
11.3 Rights of Third Parties. . . . . . . . . . . .67
11.4 Survival of Representations and
Warranties; Indemnities. . . . . . . . . . . .68
11.5 Prosecution of CEI Lawsuit and SSLIC
Lawsuit . . . . . . . . . . . . . . . . . . . 68
11.6 Prior Agreements; Modifications. . . . . . . .68
11.7 Captions and Table of Contents . . . . . . . .68
11.8 Governing Law. . . . . . . . . . . . . . . . .69
11.9 Counterparts . . . . . . . . . . . . . . . . .69
11.10 Severability. . . . . . . . . . . . . . . . . 69
11.11 Notices . . . . . . . . . . . . . . . . . . . 69
11.12 Waiver. . . . . . . . . . . . . . . . . . . . 69
11.13 No Finders' Fees. . . . . . . . . . . . . . . 71
11.14 Definition of CEI's, SSLIC's, and
the Companies' Knowledge. . . . . . . . . . . 71
11.15 Definition of SNFC's Knowledge. . . . . . . . 71
11.16 Attorneys' Fees . . . . . . . . . . . . . . . 72
11.17 Consent to Jurisdiction; Waiver of
Jury Trial . . . . . . . . . . . . . . . . . 72
11.18 Cross References. . . . . . . . . . . . . . . 72
ANNEXES
Annex I Agreement by Certain Shareholders of Consolidare
Enterprises, Inc. to Vote in Favor of Merger
Annex II Agreement and Plan of Merger
Annex III Escrow Agreement
SCHEDULES
(with page number where first mentioned in text)
Page
Schedule A Officers, Directors, Employees, Financial
Institution Accounts, Safety Deposit Boxes,
Powers of Attorney, and Shareholders. . . . . . . . .18
Schedule B Litigation. . . . . . . . . . . . . . . . . . .20
Schedule C Taxes Not Reflected on Balance Sheet. . . . . .23
Schedule D Patents, Trademarks, Servicemarks, and
Copyrights . . . . . . . . . . . . . . . . . . . . . 24
Schedule E Employee Benefit Plans; Employment Contracts. .25
Schedule F States Where Companies Admitted or Qualified. .26
Schedule G Policy Forms; Limits; Reinsurance
Underwriting Manual . . . . . . . . . . . . . .27
Schedule H Financial Statements . . . . . . . . . . . . .27
Schedule I Report of Examination . . . . . . . . . . . . .29
Schedule J Regulatory Filings. . . . . . . . . . . . . . .29
Schedule K Claims. . . . . . . . . . . . . . . . . . . . .30
Schedule L Termination of Insurance. . . . . . . . . . . .30
Schedule M Insurance-Related and Other Agreements. . . . .31
Schedule N Contracts, Agreements, and Plans. . . . . . . .17
Schedule O Tax Returns . . . . . . . . . . . . . . . . . 22
Schedule P Certain Occurrences Since December 31, 1996 . .34
Schedule Q Real Estate Owned and Leased. . . . . . . . . .31
Schedule R Fixed Assets. . . . . . . . . . . . . . . . . .38
Schedule S Omitted
Schedule T Omitted
Schedule U Decreases in Statutory Net Capital and Surplus. 55
Schedule V Finders' Fees, Etc. Payable by SNFC. . . . . . .71
Schedule W List of CEI Individuals for "Knowledge"
Purposes. . . . . . . . . . . . . . . . . . . . 71
Schedule X Schedule and List of SNFC Individuals
for "Knowledge" Purposes. . . . . . . . . . . . 72
ACQUISITION AGREEMENT
This Acquisition Agreement ("Agreement") dated as of April
24, 1998, by and among Security National Financial Corporation,
a Utah corporation ("SNFC" or the "Buyer"), Consolidare
Enterprises, Inc., a Florida corporation ("CEI"), and the
shareholders of CEI who have executed the Agreement by Certain
Shareholders of Consolidare Enterprises, Inc., to Vote in Favor
of Merger in the form attached as Annex I (the "Shareholders")
(SNFC, CEI and the Shareholders collectively, the "Parties").
W I T N E S S E T H :
WHEREAS, CEI owns approximately 57.4% of the
outstanding shares of common stock of Southern Security Life
Insurance Company, a Florida corporation ("SSLIC"); a surplus
debenture dated September 7, 1988 in the principal amount of
$1,000,000 issued by SSLIC (the "Surplus Debenture"), and all of
the outstanding shares of common stock of Insuradyne Corp., a
Florida corporation ("IC"); and
WHEREAS, the Parties desire upon the terms and
subject to the conditions herein set forth to enter into an
agreement and plan of merger providing for the merger of CEI with
and into SNFC which merger, if consummated, would result in (i)
SSLIC becoming a majority-owned subsidiary of SNFC or SNFC
subsidiary and (ii) the shareholders of CEI becoming entitled to
receive cash for each share of CEI outstanding immediately prior
to the Effective Time of the Merger as hereinafter defined; and
WHEREAS, CEI and the Shareholders desire to induce
SNFC to enter into such an agreement and plan of merger, and each
of the Parties is prepared to make the representations,
warranties, and agreements set forth below.
NOW, THEREFORE, in order to consummate the
transactions set forth above and in consideration of the mutual
covenants, agreements, representations, and warranties herein
contained, the Parties, intending to be legally bound, agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Terms Defined. The terms defined in this
Section 1.1 shall for all purposes of this Agreement have the
meanings herein specified, unless the context expressly or by
necessary implication otherwise requires:
(a) "Accrued Commissions and Interest" shall have the
meaning specified in Section 2.2(a)(2);
(b) "Agreement" shall mean this Agreement by and among
SNFC, CEI and the Shareholders as originally executed and
delivered or, if amended or supplemented, as so amended or
supplemented;
(c) "Buyer" shall mean SNFC or any other company into
which CEI shall be merged pursuant to the provisions of this
Agreement;
(d) "Balance Sheet" shall have the meaning specified in
Section 3.18;
(e) "CEI" shall have the meaning specified in the first
paragraph of this Agreement;
(f) "CEI Deposit Amount" shall have the meaning specified
in Section 2.2(b);
(g) "CEI Capital Stock" shall mean all of the outstanding
shares of the CEI Common and all of the outstanding Debentures;
(h) "CEI Common" shall mean the shares of Common Stock,
par value $.25 per share, of CEI, and any reference to a share
thereof shall include a fractional share thereof on a
proportionate basis;
(i) "CEI's Consolidated Financial Statements" shall mean
the audited consolidated financial statements of CEI for the
fiscal year then ended;
(j) "CEI Lawsuit" shall mean CEI's lawsuit against MC
Equities, Inc.;
(k) "CEI Lawsuit Recovery Amount" shall mean all amounts
received by CEI or the Buyer in connection with the CEI Lawsuit
after the Closing Date;
(l) "Closing" shall have the meaning specified in Section
2.4;
(m) "Closing Date" shall have the meaning specified in
Section 2.4;
(n) "Companies" shall mean CEI and its Subsidiaries;
(o) "Converting Debentureholder" shall mean a
Debentureholder who elects to exercise its right to convert its
Debenture(s) into the right to receive such amount of cash as it
would receive if it were a holder of CEI Common;
(p) "Debenture Reserve Amount" means the amount required
to pay in full (pursuant to the "call" provisions of the
Debentures) all Debentureholders who do not elect to become
Converting Debentureholders;
(q) "Debentureholder" shall mean a holder of Debentures;
(r) "Debentures" shall mean the Convertible Debentures of
CEI, as described in Section 3.4(d);
(s) "Disbursing Agent" shall mean a financial institution
appointed by CEI pursuant to the Escrow Agreement;
(t) "Effective Time of the Merger" shall mean the date
specified in the Articles of Merger filed with the Department of
State of the State of Florida and the Articles of Merger filed
with the Division of Corporations and Commercial Code of the
State of Utah or if no date is specified therein, the later of
the time (i) at which Articles of Merger are filed with the
Department of State of the State of Florida and (ii) at which
Articles of Merger are filed with the Division of Corporations
and Commercial Code of the State of Utah;
(u) "Employee Benefit Plans" shall have the meaning
specified in Section 3.13;
(v) "Escrow Account" shall mean the account maintained at
the Disbursing Agent pursuant to the Escrow Agreement into which
SNFC shall deposit the SNFC Deposit Amount upon the execution and
delivery of this Agreement and the additional payments provided
in Section 2.2(d) and into which CEI shall deposit the CEI
Deposit Amount upon the execution and delivery of this Agreement;
(w) "Escrow Agreement" shall mean the Agreement
referenced in Section 2.2(b);
(x) "Financial Statements" shall have the meaning
specified in Section 3.18;
(y) "Fixed Assets" shall have the meaning specified in
clause (a) of Section 3.32;
(z) "GAAP" shall mean generally accepted accounting
principles;
(aa) "Holdback Amount" shall mean all funds paid to the
Disbursing Agent pursuant to Section 2.2(d)(v) of this Agreement,
with interest thereon.
(ab) "Holdback Payment Date" shall mean the later of (i)
January 3, 2000, or (ii) the first business day following the
date that is the one-year anniversary of the Effective Time of
the Merger;
(ac) "IC" shall have the meaning specified in the first
recital of this Agreement;
(ad) "IRC" means the Internal Revenue Code of 1986, as
amended (including any predecessor statute);
(ae) "Litigation Reserve Account" means the account in
which the Litigation Reserve Amount, interest thereon and other
funds required to be deposited therein, are held by the
Disbursing Agent.
(af) "Litigation Reserve Amount" means the sum of
$157,400, which shall be held by the Disbursing Agent in the
Litigation Reserve Account subject to the provisions of the
Escrow Agreement.
(ag) "KPMG" shall have the meaning specified in Section
3.18;
(ah) "Material" when used in "materially adverse" or
"material adverse change", when referring to representations or
warranties with respect to the Balance Sheet, shall be deemed to
mean an effect or variance with respect to the Companies, or
SNFC, as appropriate, the magnitude of which would result in an
after tax net effect or variance of One Hundred Thousand Dollars
($100,000) or more, whether individually or in the aggregate, or
when related to any other representation, warranty, covenant, or
agreement, shall be deemed to mean any effect or variance which
results in an after tax net effect of Fifteen Thousand Dollars
($15,000) or more, whether individually or in the aggregate;
(ai) "Merger" shall mean the merger of CEI into SNFC
contemplated by this Agreement and the Plan of Merger;
(aj) "Merger Consideration" shall have the meaning
specified in Section 2.2(a)(2);
(ak) "1997 Financial Statements" shall have the meaning
specified in Section 3.18;
(al) "Parties" shall have the meaning specified in the
first paragraph of this Agreement;
(am) "Per Share Amount" shall have the meaning specified
in Section 2.2(a)(2);
(an) "Permitted Liens" shall mean as of any given time:
(i) liens and charges for state, county, city,
school, water, public utility, district, or other municipal
taxes, levies, or assessments not then due and payable or which
remain payable without loss of discount, interest, or penalty or
which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which
adequate reserves have been set aside on the books of CEI or its
Subsidiaries; and
(ii) easements, rights of way, rights of
lessees under leases, installations of public utilities, title
exceptions and reservations, reservations in land patents, access
and other restrictions, zoning ordinances, and other
encumbrances, none of which individually or in the aggregate
materially interferes with the Companies' or any of their use of
the properties subject thereto in the ordinary course of their
businesses;
(ao) "Plan of Merger" shall mean the Agreement and Plan of
Merger between SNFC and CEI pursuant to which CEI will be merged
into SNFC, which Agreement and Plan of Merger shall be
substantially in the form attached hereto as Annex II;
(ap) "Schedule" shall mean any one of the schedules
delivered by CEI to SNFC pursuant to Articles 3, 5 or 11 and
identified and initialed as such by an officer of CEI and the
schedule lettered X delivered by SNFC to CEI pursuant to Section
11.14 and identified and initialed as such by an officer of SNFC;
(aq) "Shareholders" means each of the shareholders of CEI
who has executed a copy of Annex I to this Agreement;
(ar) "SNFC" shall have the meaning specified in the first
paragraph of this Agreement;
(as) "SNFC Deposit Amount" shall have the meaning
specified in Section 2.2(b);
(at) "SSLIC" shall have the meaning specified in the first
recital of this Agreement;
(au) "SSLIC's GAAP Financial Statements" shall mean the
audited financial statements and all required exhibits,
schedules, and supporting documents for the fiscal year then
ended, prepared in accordance with GAAP;
(av) "SSLIC Lawsuit" shall mean SSLIC's lawsuit against
O'Neil, Lee & West, Inc., Hartford Insurance Company of the
Southeast and United States Fire Insurance Company;
(aw) "SSLIC Lawsuit Recovery Amount" shall mean all
amounts received by SSLIC in connection with the SSLIC Lawsuit;
(ax) "SSLIC's Statutory Annual Statement" shall mean the
statement and all required exhibits, schedules, and supporting
documents for the fiscal year then ended filed by the SSLIC
pursuant to Section 624.424 of the Florida Statutes;
(ay) "Statutory Balance Sheet" shall mean the balance
sheet(s) prepared by SSLIC in accordance with the accounting
practices prescribed or permitted by the Insurance Department of
the State of Florida;
(az) "Subsidiaries" shall mean (i) SSLIC and (ii) all the
corporations or other entities a majority of the voting stock (or
equivalent for entities other than corporations) of which at the
time in question is or was owned by CEI directly or indirectly
through Subsidiaries, and "Subsidiary" shall mean any one of such
Subsidiaries;
(ba) "Surplus Debenture" shall have the meaning specified
in the first recital of this Agreement;
(bb) "Surviving Corporation" shall mean SNFC, with and
into which CEI shall have been merged in accordance with the Plan
of Merger and applicable law; and
(bc) "URBCA" shall mean the Utah Revised Business
Corporation Act.
ARTICLE 2
AGREEMENT TO MERGE, ETC.
2.1 Agreement to Merge. In accordance with the
provisions of Section 16-10a-1101 et seq. of the URBCA and
Section 607.1101 et seq. of the Florida Statutes, at the
Effective Time of the Merger CEI shall be merged into SNFC upon
the terms set forth in the Plan of Merger. SNFC may, at its
option, elect to consummate the transactions contemplated by this
Agreement by the merger of CEI into an SNFC subsidiary.
2.2 Notice of Merger and Conversion of CEI Common into
Right to Receive Cash.
(a)(1) At least twenty (20) days prior to the expected
Effective Time of the Merger, CEI shall give notice of the Merger
to all holders of Debentures and holders of Debentures shall have
the right to convert their Debentures and receive a portion of
the Merger Consideration in accordance with the provisions of the
Debentures.
(a)(2) The total amount to be paid by SNFC to the holders
of CEI Capital Stock shall be $11,356,400, subject to reduction
as provided below, plus an amount equal to the current assets of
CEI (on a consolidated basis with IC) as of the Closing Date
(such amount, together with the additional amounts provided in
subparagraph (c) below, the "Merger Consideration"). In the
event any representation or warranty made by CEI in this
Agreement is not true and correct as of the Closing Date, and
such failure to be true and correct results in a reduction in the
capital and surplus of SSLIC as of the Closing Date, the Merger
Consideration shall be reduced by an amount equal to 45.9% of
such reduction in the capital and surplus of SSLIC. For purposes
of this subparagraph, current assets of CEI shall mean cash and
cash equivalents (with interest earned through the Closing Date)
and accrued commissions due to IC from SSLIC and accrued interest
due to CEI from SSLIC on the Surplus Debenture through the
Closing Date and shall include the CEI Deposit Amount. With
respect to accrued commissions due to IC from SSLIC and accrued
interest due to CEI from SSLIC on the Surplus Debenture which
have not been paid on the Closing Date (the "Accrued Commissions
and Interest"), SNFC shall, within 30 days following the Closing
Date, determine the amount of such commissions and interest and
pay the same to the Disbursing Agent as part of the Merger
Consideration. If the Closing Date occurs on a day other than
the last day of a month: (i) interest payable by SSLIC to CEI on
the Surplus Debenture for the period through the Closing Date
shall be paid as part of the Merger Consideration, and (ii)
commissions payable to SSLIC by IC for the period through the
Closing Date shall be determined by prorating commissions paid to
IC by SSLIC for the month in which the Closing Date occurs by
multiplying the total amount of commissions paid for such month
by a fraction, the numerator of which is the number of days in
such month through the Closing Date and the denominator of which
is the total number of days in such month, and such amount shall
be paid as part of the Merger Consideration. Further, SNFC shall
cause SSLIC to pay, on the Closing Date, $1,050,000 to George
Pihakis as a lump-sum settlement of the Executive Compensation
Agreement dated as of October 22, 1983, by and between SSLIC and
Mr. Pihakis. Each share of CEI Common issued and outstanding
immediately prior to the Effective Time of the Merger shall, by
virtue of the Merger and without any action on the part of the
holder thereof, automatically be canceled and converted into the
right to receive an amount per share equal to the Merger
Consideration divided by (i) the total number of shares of CEI
Common issued and outstanding at the Effective Time of the Merger
plus (ii) the number of shares of CEI Common issuable upon
conversion of Debentures held by Converting Debentureholders,
rounded to the nearest whole cent (such amount, the "Per Share
Amount"). Each holder of a share or shares of CEI Common
immediately prior to the Effective Time of the Merger shall by
virtue of the Merger and without any action on the part of such
holder cease being a shareholder of CEI and automatically be
converted from a shareholder into a creditor of the Surviving
Corporation for an amount equal to the number of shares of CEI
Common held of record by such holder at such time multiplied by
the Per Share Amount. Rights of dissenting shareholders are
described in Section 2.5. All Debentures held by holders who are
not Converting Debentureholders will be called by the Surviving
Corporation immediately following the Effective Time of the
Merger.
(b) Upon the execution and delivery of this Agreement,
(i) SNFC, CEI, and the Disbursing Agent shall execute and deliver
the Escrow Agreement in the form attached hereto as Annex III;
(ii) SNFC shall pay $100,000 (with interest, the "SNFC Deposit
Amount") of the Merger Consideration to the Disbursing Agent, to
be held as part of the Escrow Account: and (iii) CEI shall pay
$100,000 (with interest, the "CEI Deposit Amount") to the
Disbursing agent, to be held as part of the Escrow Account. The
SNFC Deposit Amount shall be paid to CEI as liquidated damages if
SNFC breaches its obligations and as a result thereof fails to
close hereunder or in the event of noncompliance by SNFC as
provided in Section 11.2. The payment of such sum shall be the
sole and exclusive remedy of CEI if SNFC breaches its obligations
and fails to close hereunder or in the event of noncompliance by
SNFC as provided in Section 11.2. CEI and SNFC agree that such
sum is a fair and appropriate determination of the fees and
expenses and other damages which CEI will sustain if SNFC
breaches its obligations and fails to close hereunder or in the
event of noncompliance by SNFC as provided in Section 11.2. The
CEI Deposit Amount shall be paid to SNFC as liquidated damages if
CEI breaches its obligations and as a result thereof fails to
close hereunder. The payment of such sum shall be the sole and
exclusive remedy of SNFC if CEI breaches its obligations and
fails to close hereunder. SNFC and CEI agree that such sum is a
fair and appropriate determination of the fees and expenses and
other damages which SNFC will sustain if CEI breaches its
obligations and fails to close hereunder.
(c) The Merger Consideration shall be increased by (i) an
amount equal to the CEI Lawsuit Recovery Amount; and (ii) an
amount equal to 57.4% of the SSLIC Lawsuit Recovery Amount.
(d) The Merger Consideration shall be paid to the
Disbursing Agent as follows:
(i) No later than 11:00 a.m. (Eastern Time) on the
Closing Date, SNFC shall transfer the Merger Consideration, less
the SNFC Deposit Amount, the Accrued Commissions and Interest,
and the amounts provided in subparagraph (c) above, to the
Disbursing Agent in immediately available federal funds.
(ii) Promptly after the Closing, the Disbursing Agent
shall pay to the holders of CEI Common at the Effective Time of
the Merger and Converting Debentureholders, the Merger
Consideration, less the Accrued Commissions and Interest, the
Debenture Reserve Amount, the Litigation Reserve Amount and the
amounts provided in subparagraph (c) above.
(iii) Following the call of outstanding Debentures by the
Surviving Corporation after the Effective Time of the Merger, the
Disbursing Agent shall pay the Debentureholders who are not
Converting Debentureholders their allocable share of the
Debenture Reserve Amount.
(iv) Promptly following receipt of the Accrued Commissions
and Interest by the Disbursing Agent from SNFC, the Disbursing
Agent shall pay the Accrued Commissions and Interest to the
persons receiving payment under subparagraph (d)(ii) above.
(v) On the Closing Date, if received on or prior to the
Closing Date, and on or before the thirtieth day following
receipt, if received after the Closing Date, SNFC shall pay an
amount equal to 57.4% of any portion of the SSLIC Lawsuit
Recovery Amount received by SSLIC to the Disbursing Agent, which
shall hold and disburse such funds as provided in the Escrow
Agreement. On or before the thirtieth day following receipt by
CEI or the Buyer of any portion of the CEI Lawsuit Recovery
Amount, SNFC shall pay an amount equal to such portion of the CEI
Lawsuit Recovery Amount to the Disbursing Agent, which shall hold
and disburse such funds as provided in the Escrow Agreement.
(vi) Amounts held by the Disbursing Agent in the Escrow
Account as part of the Holdback Amount shall be paid to the
persons receiving payment under subparagraph (d)(ii) above on the
Holdback Payment Date or as otherwise provided by the Escrow
Agreement.
(vii) Any amounts held by the Disbursing Agent in the
Litigation Reserve Account shall be paid to the persons receiving
payment under subparagraph (d)(ii) above upon the termination of
the CEI Lawsuit and the SSLIC Lawsuit by settlement or entry of
a final judgment which is nonappealable.
(viii) All payments made by the Disbursing Agent
pursuant to the provisions of subparagraphs (ii), (iv), (vi) and
(vii) above, shall be based upon a per share amount determined by
dividing the total amount to be paid by the sum of: (i) the
total number of shares of CEI Common issued and outstanding at
the Effective Time of the Merger plus (ii) the number of shares
of CEI Common issuable upon the conversion of the Debentures held
by Converting Debentureholders. The per share amount shall be
paid to holders of CEI Common issued and outstanding at the
Effective Time of the Merger based upon the number of shares held
by each such holder and to Converting Debentureholders based upon
the number of shares of CEI Common issuable upon the conversion
of Debentures held by such holders.
2.3 Payment of Cash and Surrender of Certificates for CEI
Common. All payments of cash to be made to the shareholders of
CEI Common and Converting Debentureholders shall be made by
delivery of a check of the Disbursing Agent to and in the name of
each holder of CEI Common or Converting Debentureholder or its
designated agent or transferee. No interest shall be payable in
respect of any such payment, provided, however, that any amount
paid pursuant to Section 2.2(d)(vi) shall include interest and
dividends earned by funds in the Escrow Account. After the
Effective Time of the Merger, there shall be no further registry
of transfers in respect of CEI Common. On or before the third
business day following the Effective Time of the Merger, SNFC
will cause the Disbursing Agent to send a notice and a
transmittal form to each holder of record of CEI Common
immediately prior to the Effective Time of the Merger and each
Converting Debentureholder advising such holders of the terms of
payment to be effected in connection with the Merger, the
procedure for surrendering certificates for CEI Common and
Debentures to the Disbursing Agent, and the procedure for
distribution to such shareholder and/or Converting
Debentureholder of the amount of cash to which such holder is
entitled pursuant to the terms hereof and the Plan of Merger. If
any such payment is to be delivered to or paid in a name other
than that in which the stock certificate or Debenture is
registered, the certificate or Debenture so surrendered shall be
properly endorsed and otherwise in proper form for transfer, and
the person requesting such payment shall pay to the Disbursing
Agent any transfer or other taxes required by reason of the
delivery to or payment in any name other than that of the
registered holder of the certificate or Debenture surrendered, or
establish to the satisfaction of the Disbursing Agent that such
tax has been paid or is not applicable.
2.4 The Closing. The execution and delivery by SNFC and CEI of
the various instruments and documents which this Agreement
contemplates, all of which shall take place prior to the
Effective Time of the Merger, shall constitute the "Closing."
The Closing shall take place, at the offices of CEI, 755 Rinehart
Road, Lake Mary, FL 32746, or at such other place as SNFC and CEI
shall otherwise agree, at 10:00 A.M., local time, on a day (the
"Closing Date") within five business days after the last to occur
of either (i) approval of the Merger by the CEI shareholders or
(ii) the receipt of the last of the regulatory approvals referred
to in Article 7, provided that all other conditions to closing
have been met or waived. If CEI and SNFC cannot agree on the
Closing Date, it shall take place on the fifth such business day.
In the event that any condition precedent to a party's obligation
to close hereunder and under the Plan of Merger is not satisfied
or fulfilled at or as of the Closing, and the party with the
right to do so has not waived compliance therewith or given
notice of default, the Closing shall be postponed until such
later time as such condition precedent shall have been satisfied
or such waiver or notice of default shall have been given, or the
parties shall otherwise mutually agree, but in no event shall the
Closing be postponed to a date later than August 31, 1998. The
parties agree to work diligently and use their best efforts to
obtain all required approvals and satisfy all conditions so that
the Closing may occur on or prior to June 30, 1998.
As promptly as possible following the Closing, a
fully-executed Articles of Merger meeting the requirements of
Section 16-10a-1105 of the URBCA and a fully-executed Articles of
Merger meeting the requirements of Section 607.1105 of the
Florida Statutes shall be delivered for filing to the Division of
Corporations and Commercial Code of Utah and the Department of
State of the State of Florida, respectively.
2.5 Dissenting Shareholders. The duties and rights of a
dissenting shareholder of CEI Common, as well as the duties and
rights of the Surviving Corporation shall be as provided in the
URBCA and the Florida Statutes. If any such shareholder shall
not perfect his rights as a dissenting shareholder under Section
607.1320 of the Florida Statutes, or such shareholder shall
thereafter withdraw such election or otherwise become bound by
the provisions of this Agreement and the Plan of Merger pursuant
to the Florida Statutes, the amount of cash delivered to the
Disbursing Agent with respect to such shareholder shall be
delivered by the Disbursing Agent to such shareholder in exchange
for the certificates representing such shareholder's shares of
CEI Common. If any such shareholder thereafter receives payment
for such shareholder's shares as provided in the Florida
Statutes, the Disbursing Agent shall promptly return to the
Surviving Corporation that cash which the Disbursing Agent had
been holding as due to such shareholder pursuant to the Plan of
Merger.
2.6 Covenants, Agreements, Etc. as Conditions. The material
performance of all covenants and agreements, and the material
accuracy of all representations and warranties made herein by the
Buyer and CEI are conditions to the obligations of the Buyer and
CEI, respectively, and it shall be the obligation of each party,
prior to or at the time of Closing, to show to the reasonable
satisfaction of the other that all such covenants and agreements
have been complied with, and that the representations and
warranties contained herein comply with Sections 8.1 and 8.2, and
the failure of either party to do so shall be a breach of and a
failure to meet such conditions to the performance hereof by the
other.
2.7 Effectiveness of Merger. The Merger shall become effective
at the Effective Time of the Merger. The parties shall take all
action necessary in order for the Effective Time of the Merger to
occur not later than two business days after the Closing Date.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF CEI
CEI represents and warrants to SNFC that:
3.1 Subsidiaries, Joint Ventures, Etc. CEI has two
Subsidiaries: SSLIC and Insuradyne Corp. ("IC"), both of which
are Florida corporations. CEI owns 1,095,496 shares of the
issued and outstanding common stock of SSLIC and all of the
issued and outstanding shares of IC. Such shares of the
Subsidiaries are owned free and clear of all liens, encumbrances,
equities, and claims of others or restrictions on the right to
vote or transfer, and all of such shares have been validly issued
and are fully paid and nonassessable. Except for the shares of
SSLIC issuable pursuant to SSLIC's Agent's Performance Share Plan
(a copy of which is contained in Schedule N), there are no
outstanding subscriptions, warrants, options, calls, commitments,
convertible securities, or agreements to which any such
Subsidiary is bound calling for the issuance of capital stock or
convertible securities of such Subsidiary.
Neither CEI nor any Subsidiary owns, directly or
indirectly, any of the outstanding capital stock of any
corporation or an interest in any brokerage arrangement,
partnership, joint venture, or other enterprise, other than the
shares of such Subsidiaries and securities held for investment
purposes in the ordinary course of business.
3.2 Organization and Qualification, Etc. CEI and each of the
Subsidiaries:
(i) is a corporation duly organized, validly
existing, and in good standing under the laws of the state of its
incorporation, with full power and authority to own or hold under
lease its properties and assets and to carry on its business as
presently conducted under the laws of such state and under its
articles of incorporation;
(ii) is duly qualified and in good standing as a
foreign corporation in each jurisdiction where such qualification
is necessary for the conduct of its business and failure to
qualify would have a material adverse effect on its business or
financial condition; and
(iii) has all licenses, permits, authorizations, and
approvals necessary to own or lease its properties and assets and
to carry on its business as presently conducted.
3.3 Articles of Incorporation and By-Laws. The copies of CEI's
and each Subsidiary's articles of incorporation (certified by the
Secretary of State of each such company's state of incorporation)
and by-laws (certified by the secretary or an assistant secretary
of such company), both as amended to date, which have been
delivered to SNFC as part of Schedule A, are true, correct, and
complete and are in full force and effect on the date hereof.
3.4 Capital Stock. (a) The authorized capital stock of CEI
consists of
(i) 5,850,000 shares of CEI Common, par value $.25
per share, of which, as of the date hereof, 3,383,144 shares are
validly issued and outstanding, fully paid and non-assessable,
and 578,196 shares are held in the treasury,
(ii) 40,000 shares of Redeemable Converting
Cumulative Preferred Stock, par value $30.00 per share, none of
which are issued and outstanding, and
(iii) 506 shares of Converting Cumulative Preferred
Stock, none of which are issued and outstanding.
(b) The authorized capital stock of SSLIC consists of
3,000,000 shares of SSLIC Common, par value $1.00, of which
1,907,989 shares are validly issued and outstanding, fully paid,
and non-assessable, and none of which are held in the treasury.
(c) The authorized capital stock of IC consists of 1,000
shares of common stock, par value $1.00, of which 1,000 shares
are validly issued and outstanding, fully paid, and
non-assessable, and none of which are held in the treasury.
(d) The current shareholders of each of CEI and SSLIC and
the number of shares held by each such shareholder are set forth
in Schedule A. Except as disclosed in Schedule N, neither CEI
nor any of its Subsidiaries has entered into or is bound by any
agreement to issue or sell additional shares of its capital stock
or securities convertible into or exchangeable for such capital
stock, nor has it granted or is there outstanding any other
option, warrant, right, call, or commitment of any character
relating to its authorized and unissued capital stock, and there
are no outstanding securities or other instruments convertible
into or exchangeable for shares of such capital stock, except
that CEI has issued and outstanding convertible debentures in the
aggregate principal amount of $1,875,300 (the "Debentures"),
which are convertible into 893,000 shares of CEI Common, the
holders of which and the principal amount thereof held by each
holder are set forth in Schedule A, and SSLIC is obligated to
issue 3,409 shares of SSLIC Common pursuant to its Agent's
Performance Share Plan.
3.5 Officers and Directors; Financial Institution Accounts,
Etc. Schedule A delivered to SNFC contains true, correct, and
complete lists of:
(a) the names of all of CEI's and each Subsidiary's
officers and directors;
(b) the names and job descriptions of the three (3)
highest paid employees of each of CEI and SSLIC for the fiscal
year ended December 31, 1997, together with a statement of the
full amount of compensation accrued for each such person in
respect of such year and a summary of the basis on which each
such person is compensated, if such basis is other than a fixed
salary rate;
(c) the name of each financial institution in which
either CEI or any Subsidiary has an account or safety deposit
box, the name in which the account or box is held and the names
of all persons authorized to draw checks thereon or to have
access thereto; and
(d) the names of all persons holding powers of attorney
from the Companies and a summary statement of the terms thereof.
3.6 Litigation. Other than claims submitted to SSLIC in the
ordinary course of business by its policy holders for insurance
policy benefits or values and except as disclosed in Schedule B
delivered to SNFC, there is no action, suit, proceeding, or claim
and no investigation by any governmental agency pending, or to
the knowledge of CEI or the Subsidiaries threatened, against CEI
or any Subsidiary, or the assets or business of CEI or any
Subsidiary, which if determined adversely would require payment
by CEI or any Subsidiary of damages greater than $50,000 or which
has or may reasonably be expected in the future to have a
material adverse effect on the assets, liabilities, financial
condition, or results of operations of any of the Companies.
There is no action, suit, proceeding, claim, or investigation
pending or, to the knowledge of CEI or the Subsidiaries,
threatened against or affecting the transactions contemplated by
this Agreement and the Plan of Merger. There is no outstanding,
and to the best of the knowledge of CEI or the Subsidiaries any
threatened, order, writ, injunction, or decree of any court,
government, or governmental agency against CEI or its
Subsidiaries, which has or may have a material adverse effect on
the assets, liabilities, financial condition, or results of
operations of any of the Companies.
3.7 Minute Books, Etc. The minute books of CEI and its
Subsidiaries contain full and complete minutes of all annual,
special, and other meetings (or written consents in lieu thereof)
of the directors and committees of directors and shareholders of
CEI and its Subsidiaries; the signatures thereon are the true
signatures of the persons purporting to have signed them; the
stock ledgers (which shall be construed to include any ledger
reflecting the identities of the Debentureholders and their
holdings thereof) of CEI and its Subsidiaries are complete and
all documentary stamp taxes, if any, required in connection with
the issuance or transfer of the outstanding shares of CEI Common
Stock, the Debentures, and the common stock of the Subsidiaries
have been affixed and canceled.
3.8 Authorization of Agreement. The Board of Directors of CEI
has duly approved this Agreement and the Plan of Merger and the
transactions contemplated hereby and thereby and has duly
authorized the execution and delivery by CEI of this Agreement,
the Plan of Merger and the Escrow Agreement, subject to the
requisite approval by the holders of CEI Common Stock. Subject
to the requisite approval of the holders of CEI Common Stock, and
subject to any requisite approval of regulatory authorities
having jurisdiction with respect to the transactions contemplated
by this Agreement, CEI has full power and authority to enter into
this Agreement and perform its obligations hereunder and to enter
into the Plan of Merger and the Escrow Agreement and perform its
obligations thereunder.
This Agreement constitutes, and the Plan of Merger and the
Escrow Agreement will constitute, valid, and legally binding
obligations of CEI enforceable against CEI in accordance with
their respective terms; and this Agreement and the Plan of Merger
and the Escrow Agreement and the consummation of the transactions
contemplated hereby and thereby have, or will have prior to the
Closing Date, been duly authorized and approved and adopted by or
on behalf of CEI by all requisite corporate action.
3.9 No Conflict with Other Interests. Neither the execution and
delivery of this Agreement or the Plan of Merger nor the
consummation of the transactions contemplated hereby or thereby
will conflict with, violate, or constitute a default under or
accelerate or permit the acceleration of the performance required
by, any provision of the charter or by-laws of any of the
Companies or any agreement or instrument to which any of them is
a party or by which any of them or its properties may be bound or
affected or any order, judicial or administrative award,
judgment, or decree, or to CEI's knowledge, any law, to which any
is a party or by which any of their properties may be bound or
affected or result in the creation or imposition of any lien,
charge, pledge, security interest, or other encumbrance upon any
of its properties. To CEI's knowledge, no consents, waivers,
approvals, authorizations, or orders other than the approval of
the shareholders of CEI and the regulatory authorities listed in
Section 7.1 are necessary for the authorization, execution, and
delivery of this Agreement and the Plan of Merger by CEI and the
consummation of the transactions contemplated herein and therein.
3.10 Tax Returns. Except as disclosed on Schedule O, CEI and
each of its Subsidiaries has filed all necessary Federal, state,
and local income, premium, property, sales and use, capital
stock, and franchise tax returns, and all necessary reports and
returns for all other taxes due to the Federal, state, and local
governments, and complete and correct copies thereof have been
furnished (with respect to the Federal returns) or made available
(with respect to the other returns) to SNFC for the five years
ended December 31, 1996. CEI and each of its Subsidiaries has
paid all taxes (whether or not shown to be owing on said
returns), and all assessments of taxes received by each of them
have been paid in full. All such tax returns were correct and
complete in all respects. To the best of their knowledge after
due inquiry, each of CEI and its Subsidiaries has disclosed on
its federal income tax returns all positions taken therein that
could give rise to a substantial understatement of federal income
tax within the meaning of IRC 6662. CEI and its Subsidiaries
have requested an extension of time within which to file tax
returns for the year ended December 31, 1997. The Federal income
tax returns of CEI and its Subsidiaries for the five years ended
December 31, 1996 have never been audited by the Internal Revenue
Service. There are no other pending tax examinations or tax
claims, or any basis for any tax claim against CEI or any of its
Subsidiaries, other than a pending audit of CEI by the Internal
Revenue Service for the year ended December 31, 1996. There are
no waivers of statutes of limitation in effect in respect of any
taxes for (a) CEI or any Subsidiary or (b) to CEI's knowledge,
any former Subsidiary of CEI. Except as disclosed in Schedule O,
no claim has ever been made by an authority in a jurisdiction
where any of CEI and its Subsidiaries does not file returns that
any of them is or may be subject to taxation by that
jurisdiction. There are no security interests on any of the
assets of CEI or its Subsidiaries that arose in connection with
any failure (or alleged failure) to pay any tax. All taxes not
yet due but which are accruable have been fully accrued on the
books of CEI or each Subsidiary (in accordance with sound
accounting practice) or full reserves have been established
therefor (in accordance with sound accounting practice) and are
reflected in CEI's balance sheet as of June 30, 1997, delivered
to SNFC pursuant to Section 3.18 (except as set forth in Schedule
C delivered or to be delivered to SNFC hereto). The unpaid taxes
of CEI and its Subsidiaries do not exceed those reserves as
adjusted for the passage of time through the Effective Time of
the Merger in accordance with the past custom and practice of CEI
and its Subsidiaries in filing their tax returns. Each of CEI
and its Subsidiaries has withheld and paid all taxes required to
have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor,
stockholder, or other third party. Neither CEI nor any
Subsidiary has ever filed a consent under IRC Section 341(f)
(relating to collapsible corporations). None of CEI and its
Subsidiaries is a party to any tax allocation or sharing
agreement. None of CEI and its Subsidiaries (A) has been a
member of an affiliated group filing a consolidated federal
income tax return (other than a group the common parent of which
was CEI) or (B) has any liability for the taxes of any person
(other than any of CEI and its Subsidiaries) under Treas. Reg.
1.1502-6 (or any similar provision of state, local, or foreign
law), as a transferee or successor, by contract or otherwise.
3.11 Software Programs, Patents, Trademarks, Servicemarks, and
Copyrights. Except as indicated on Schedule D delivered to SNFC,
all software programs, patents, trade names, trademarks or
service marks, or service names (whether registered or
unregistered) and copyrights or applications for any thereof
owned by, licensed to, or used by any of the Companies are valid
and subsisting and are listed in Schedule D. None of the
Companies has licensed any third party to use any software
program, patent, trademark, service mark, know-how, or copyright.
Except as set forth in Schedule D, to CEI's knowledge, there are
no claims or demands of any person pertaining to any software
programs, patents, know-how, patent applications, trademarks,
trademark applications, service mark or service name
applications, or copyrights owned by or licensed to any of the
Companies; no proceedings have been instituted or are pending or
threatened which challenge the rights of any of the Companies in
respect thereto; and to CEI's knowledge, the practice or use by
any of the Companies of any software program, patent, trademark,
service mark, or copyright, or any process utilized by or any
product produced by any of the Companies, does not infringe (nor
is it infringed by) any software program, patent, trademark,
service mark, or copyright owned by another (nor is it subject to
any outstanding order, decree, judgment, or stipulation). There
are no pending, nor to CEI's knowledge any threatened, claims,
demands, or proceedings charging any of the Companies with
infringement of or making any other claim with respect to any
software program, patent, trademark, trade name, service mark or
service name, copyright, or license. There is no (a) unexpired,
valid patent on products or processes of any of the Companies in
creating such products and which any of the Companies is not
entitled to use or (b) patent or application therefor or
invention which would adversely affect any product, apparatus,
method, process, or design of any of the Companies. No officer,
director, or employee of any of the Companies has an interest in
any software program, patent, patent application, trademark,
trademark application, service mark, service mark application,
trade name, or copyright of any of the Companies.
3.12 Compliance with Law. The Companies in the conduct of their
respective businesses are in compliance with all laws,
regulations, and orders of any governmental entity affecting the
business of the Companies presently enacted and in force with
respect to which the failure to comply would have a material
adverse effect on the Companies. To the Companies' knowledge,
there is no pending or threatened change of any such law,
regulation, or order (except any law, regulation, or order of the
United States of America or any agency or department thereof)
which might materially adversely affect the assets, liabilities,
financial condition, or results of operations of the Companies
taken as a whole. Neither CEI nor any Subsidiary has been
charged with violating, nor to the Companies' knowledge,
threatened with a charge of violating, or is under investigation
with respect to a possible violation of, any provision of any
Federal, state, or local law or administrative ruling or
regulation relating to any aspect of its business. There is no
order, nor to the knowledge of the Companies any law or
regulation, of any governmental entity which would be violated by
the transactions contemplated by this Agreement and the Plan of
Merger.
3.13 Employee Benefit Plans. Except as shown in Schedule E and
Schedule N delivered to SNFC, none of the Companies is a party to
any pension, retirement, stock purchase, savings, profit-sharing,
deferred compensation, or collective bargaining agreement, group
insurance contracts, or any other incentive, welfare, or employee
benefit plans (collectively the "Employee Benefit Plans") under
which employees of any of the Companies participate or have the
right to receive benefits. None of the Companies is, nor will
any of them from the date hereof through the Effective Time of
the Merger be, in (a) violation of any applicable Federal, state,
or local laws or regulations relating to the Employee Benefit
Plans or (b) default of any of its obligations with respect to
the Employee Benefit Plans with respect to which such violation
or default would have a material adverse effect on any of the
Companies. None of the Companies shall amend or terminate any of
the Employee Benefit Plans without the prior written consent of
SNFC. Furthermore, none of the Companies shall make any
contributions under the Employee Benefit Plans other than those
required by the terms of the Employee Benefit Plans without the
prior written consent of SNFC. Each Employee Benefit Plan has
been consistently maintained and administered in accordance with
its terms and provisions and the requirements, including those
relating to reporting and disclosure, of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). All
information necessary to make all required or necessary filings
with the Internal Revenue Service, the Department of Labor, the
Pension Benefit Guaranty Corporation, and any other governmental
agencies with respect to any of the Employee Benefit Plans after
the Effective Time of the Merger will be made available to SNFC
in a manner that will permit SNFC to make such filings in a
timely manner. Except as set forth in Schedule E delivered to
SNFC, none of the Companies is a party to any employment contract
or agreement. The employee census for each of the Companies as
of March 1, 1998, as disclosed in Schedule E, is true, correct,
and complete as of that date and has not materially changed.
None of the Companies is or ever has been a member of a
"multiemployer plan" as defined in ERISA.
3.14 Labor. None of the Companies is in violation of any
applicable Federal, state, or local law relating to the
employment of labor (including, without limitation, the
provisions thereof relating to wages and hours, the payment of
Social Security taxes, and equal employment opportunity) or is
liable for any tax or penalty for failure to comply with any of
the foregoing, with respect to which any violation or liability
would have a material adverse effect on any of the Companies.
There are no controversies pending or, to CEI's knowledge,
threatened between the Companies and any of their employees.
Neither CEI nor any of its Subsidiaries is currently, nor to its
knowledge since their formation has any of them been, involved in
any labor discussions with any unit or group seeking to become
the bargaining unit for any of their employees. None of the
Companies' employees is a member of any union or collective
bargaining group.
3.15 State Admissions. SSLIC is duly admitted or qualified and
is in good standing as a life insurance company in the states
listed in Schedule F. Each of CEI and its other Subsidiaries is
duly qualified to do business and is in good standing in the
states listed in Schedule F. Except as set forth on Schedule F,
there are no proceedings pending or, to the knowledge of CEI or
the Subsidiaries threatened, which could materially adversely
affect any such licenses or qualifications, nor are there any
facts known to CEI or any of the Subsidiaries which could result
in any such material adverse effect.
3.16 Agency Arrangements. CEI has given SNFC access to (and
SNFC and its employees and agents may make copies of), correct
and complete copies of all agency agreements, agent's agreements,
general agent's agreements, brokerage agreements, or other
agreements pursuant to which any of the Companies is obligated to
make payments in connection with the sale of insurance or
annuities to which any of the Companies is a party or was
otherwise bound as of the date hereof and as of December 31,
1997.
3.17 Insurance Policies. Except as disclosed on Schedule G, CEI
has caused SSLIC to give SNFC access to specimen policy forms of
each type of insurance and annuity policy issued by SSLIC and
currently in force, as well as any policy forms proposed to be
used but not yet approved by the regulatory authorities.
Schedule G delivered to SNFC (or as it will be supplemented prior
to the Effective Time of Merger) lists or will list prior to such
time all such forms as well as a true and complete statement of
the medical and nonmedical limits and the reinsurance
underwriting manual utilized by SSLIC in connection with each
type of policy currently being issued. Each policy issued by
SSLIC has been issued on a form authorized by the regulatory
authority of each jurisdiction having authority with respect to
the issuance of such policy. There are no tontine policies. All
policies issued by SSLIC complied with the Internal Revenue Code
definition of life insurance at the time of issue.
Financial Statements. CEI has delivered to SNFC Schedule H,
which is comprised of copies of CEI's Consolidated Financial
Statements for the years 1991 through 1996 and SSLIC's GAAP
Financial Statements for the years 1992 through 1996, all
accompanied by reports thereon containing opinions without
qualification, except as therein noted, by KPMG Peat Marwick,
L.L.P. ("KPMG"), and SSLIC's Unaudited Statutory Annual
Statements for the years 1992 through 1997 (collectively, the
"Financial Statements"), and an unaudited balance sheet of CEI as
of June 30, 1997 and the related unaudited statements of income
and shareholders' equity for the six-month period ended on such
date. The June 30, 1997 financial statements of CEI and the
December 31, 1997 Statutory Annual Statement of SSLIC are
referred to hereinafter as the "1997 Financial Statements."
CEI's Financial Statements and SSLIC's GAAP Financial Statements
(including the notes thereto) fairly present the financial
condition of CEI and SSLIC, respectively, at December 31 in each
of the years 1992 through 1996 and the results of their
operations and other data contained therein for each of the five
years then ended and have been prepared in accordance with GAAP,
applied on a consistent basis (except as expressly set forth or
disclosed in the notes, exhibits, or schedules thereto). The
exhibits and schedules included in such Financial Statements
fairly present the data purported to be shown thereby. SSLIC's
Statutory Annual Statements fairly present the statutory
financial condition of SSLIC at December 31 in each of the years
1992 through 1997 and the statutory results of its operations and
other data contained therein for each of the five years then
ended and have been prepared in accordance with the accounting
practices prescribed or permitted by the Insurance Department of
the State of Florida, applied on a consistent basis (except as
expressly set forth or disclosed in the notes, exhibits, or
schedules thereto, or as prescribed or permitted by such state
authorities and not required by such authorities to be
disclosed). The exhibits and schedules included in such
Statutory Annual Statements fairly present the data purported to
be shown thereby. The 1997 Financial Statements have been
prepared in accordance with GAAP or the accounting practices
prescribed or permitted by the Insurance Department of the State
of Florida, as applicable, and present fairly the financial
position of CEI and SSLIC as of such dates and the results of
their operations for such periods in accordance with GAAP or the
accounting practices prescribed or permitted by the Insurance
Department of the State of Florida, as applicable. The balance
sheets of CEI and SSLIC included in the 1997 Financial Statements
are collectively hereinafter referred to as the "Balance Sheet."
CEI has also furnished to SNFC Schedule I, which is a copy of the
most recent Report of Examination as to Condition of SSLIC, which
report constitutes the most recently completed examination of
SSLIC under the Florida insurance laws. As of December 31, 1997,
SSLIC was carrying a reserve in the amount of $347,810 in
connection with SSLIC's obligations to George Pihakis under the
Executive Compensation Agreement dated as of October 22, 1983, by
and between SSLIC and Mr. Pihakis.
3.19 Regulatory Filings. CEI has delivered to SNFC Schedule J,
which is entitled "Regulatory Filings" and lists as to SSLIC each
and every Statutory Annual Statement filed with or submitted to
any state insurance authority and any reports of examinations
issued by such state insurance authority since January 1, 1987.
Such filings or submissions were in material compliance with
applicable law when filed, and no material deficiencies have been
asserted by any such authority with respect to such filings or
submissions. Each of the Companies has made all filings with all
state authorities required by law to be made by it, the failure
of which would materially adversely affect either (a) its assets,
liabilities, financial condition or (b) results of operations or
(c) the licenses referred to in Section 3.15.
3.20 No Change in Insurance Practices. Since December 31, 1997,
neither SSLIC nor IC has (a) materially changed the procedures by
which its file of in force individual life insurance policies is
maintained, including, but not limited to, the period of
suspended lapse used, nor (b) ceded or assumed, through
reinsurance or otherwise, any block or blocks of insurance
policies written in the ordinary course of business by agents
through fronting companies.
3.21 Reserves. The reserves carried on the books of SSLIC at
September 30, 1997, (on the basis of both (i) GAAP and (ii)
accounting practices prescribed or permitted by the Insurance
Department of the State of Florida) for payment of all benefits,
losses, claims, and expenses under all insurance and annuity
policies of SSLIC were determined in accordance with the
requirements of Florida insurance law and regulations, computed
in accordance with commonly accepted actuarial standards
consistently applied, and fairly stated in accordance with sound
actuarial principles. There will be no increases in SSLIC's
reserves required after December 31, 1998 as a result of the
change from the California method to the CRVM method in excess of
the reserves previously established by SSLIC prior to such date.
3.22 Claims. CEI has delivered to SNFC Schedule K, which is
entitled "Claims" and lists all death, principal sum accidental
death and dismemberment claims, paid and unpaid, reported to
SSLIC during the period from January 1, 1997 to March 11, 1998,
whose present value (established in accordance with sound
insurance practices) at date of claim exceeds, or is likely to
exceed, $5,000. Such listing includes claim identification
number, present value of claim, date claim incurred, and date
claim reported. As to health insurance claims reported to SSLIC
since December 31, 1997, Schedule K shows the aggregate number of
claims paid as well as the aggregate amount paid and the average
amount paid per claim through February 28, 1998.
3.23 Termination of Insurance. Since December 31, 1997, no
single policyholder or agent which accounted for five percent or
more of the total revenues of SSLIC for the year ended December
31, 1997, has terminated, or to SSLIC's knowledge, threatened to
terminate its relationship with SSLIC, either as a result of the
transactions contemplated by this Agreement or otherwise. Except
as set forth in Schedule L, since December 31, 1997, no group of
policyholders related to each other by employment or membership
in an association or labor union or by common control or
ownership, which group in the aggregate accounted for more than
five percent of the total revenues of SSLIC for the year ended
December 31, 1997, has so terminated, or to SSLIC's knowledge has
so threatened to terminate, its relationship with SSLIC, either
as a result of the transactions contemplated by this Agreement or
otherwise.
3.24 Insurance-Related and Other Agreements. Schedule M and
Schedule Q delivered to SNFC accurately identify:
(i) all policies of insurance in force covering any of
the Companies as an insured party (including title insurance
policies and fidelity bonds covering officers and employees) and
set forth the premiums payable and the expiration dates,
(ii) all insurance-related agreements to which any
of the Companies is a party, including all reinsurance treaties
pursuant to which any of the Companies cedes or assumes insurance
and co-insurance and modified co-insurance agreements by which
other insurance companies serve as representing carriers for any
of the Companies for contracts of insurance issued in the
ordinary course of business,
(iii) other than obligations pursuant to insurance
and annuity contracts and agents' agreements or standard addenda
thereto, all other contracts, agreements, loans, guarantees, and
other indebtedness or understandings involving CEI, SSLIC, or IC
that provide for future payments to or from any of the Companies
exceeding $5,000 in any one case or $25,000 in the aggregate for
items of like kind, and
(iv) all leases (whether of real or personal
property) in force to which any of the Companies is a party which
provide for future rental payments to or from any of them
exceeding $5,000 in any one case or $25,000 in the aggregate, all
of which are valid and subsisting.
None of the Companies is in default under any of the
aforesaid contracts, agreements, understandings, and leases, nor
has any event occurred which, with notice or passage of time or
both, could result in a default. To the knowledge of the
Companies, or except as disclosed on Schedule M or Schedule Q, no
other party to any such contract, agreement, understanding, or
lease which is of material importance to the business, prospects,
profits, properties, or condition (financial or otherwise) of any
of the Companies is in default thereunder or may be in default
thereunder. All insurance policies covering fire, casualty,
theft, liability, and other matters held by any of the Companies
are in amounts in accordance with prudent business practice and
are duly in force, and there is no grounds for cancellation or
avoidance of any thereof or increases in the premiums thereof by
any act of any of the Companies, or for reducing the coverage
provided thereby.
3.25 Absence of Contracts, Agreements, and Plans. Except for
this Agreement and the Plan of Merger and the contracts,
agreements, plans, and commitments specifically referred to
herein, or listed in Schedule E or Schedule N delivered to SNFC,
none of the Companies is presently a party to or subject to any
of the following, whether written or oral:
(a) any management, consulting, or employment contract or
contract for personal services which extends beyond December 31,
1998;
(b) any plan, contract, or arrangement providing for
bonuses, pensions, deferred compensation, retirement payments,
profit sharing, incentive pay, stock purchase, hospitalization,
medical expenses, or similar employee benefits;
(c) any collective bargaining contract, agreement,
commitment, or similar arrangement with any labor union or other
similar organization;
(d) any contracts, commitments, or agreements for capital
expenditures which will involve expenditure after the date hereof
of more than $5,000 in the aggregate for items of like kind;
(e) any contract or agreement not made in the ordinary
course of business except as permitted by Section 3.28(j);
(f) any contract extending beyond December 31, 1998,
except as permitted by Section 3.28(j);
(g) any contract or agreement containing covenants not to
compete in any line of business;
(h) any contract, agreement, arrangement, or
understanding upon which any part of the business of any of the
Companies is materially dependent or which materially affects the
assets, liabilities, financial condition, or results of
operations of any of them; or
(i) any license, franchise, distributorship, dealer,
manufacturer's representative, sales agency, or advertising
agreement.
3.26 No Adverse Change. Since September 30, 1997, except as
shown on the Balance Sheets, there has been no change in the
assets, liabilities, financial condition, or results of
operations of any of the Companies except changes in the ordinary
course of business, none of which individually or in the
aggregate has been materially adverse. Since September 30, 1997,
except as shown on the Balance Sheets, none of the Companies has
experienced any labor trouble, strike, stoppage, or any other
occurrence which would materially adversely affect its assets,
liabilities, financial condition, or results of operations.
3.27 Casualties. Since September 30, 1997, except as shown on
the Balance Sheets, the assets, liabilities, financial condition,
and results of operations of each of the Companies have not been
materially adversely affected in any way (whether or not covered
by insurance) as the result of fire, explosion, earthquake,
accident, labor trouble, requisition, or taking of property by
any government or any agency of any government, flood, windstorm,
embargo, riot, or act of God or the public enemy or any other
casualty or similar event.
3.28 Limitations on Companies. Except for the matters listed on
Schedule P and except as shown on the Balance Sheets, since June
30, 1997, there has not been:
(a) Any material change in the business or operations of
any of the Companies or the manner of conduct of its businesses
or operations other than changes in the ordinary course of
business, none of which has had a material adverse effect on
their businesses or operations considered as a whole;
(b) Any change in the certificate of incorporation or
by-laws of any of the Companies, or any amendment to any material
agreement, contract, or license to which any of the Companies is
a party or by which any of them is bound;
(c) Any issuance by any of the Companies of any capital
stock, bonds, debentures, notes, or other corporate securities or
any option, warrant, or right to purchase any thereof;
(d) Any declaration, setting aside, or payment of any
dividend or any other distribution on or in respect of any shares
of capital stock, or any direct or indirect redemption,
retirement, purchase, or other acquisition by any of the
Companies of any shares of capital stock or convertible
securities of any of them;
(e) Any waiver by any of the Companies of any right or
rights of material value or any payment, direct or indirect, of
any material debt, liability, or other obligation of any of them
before the same shall become due in accordance with its terms;
(f) Any material change in the accounting methods,
practices. or policies followed by any of the Companies,
including but not limited to any change in depreciation or
amortization policies or rates of depreciation or amortization
theretofore adopted by any of them;
(g) Any increase in the compensation payable or to become
payable by any of the Companies to any officer, director,
employee, or consultant of any of them or any shareholder of any
of them or members of any of their families or any material
increase in the rate of commission or other variable compensation
to be paid to any person, other than increases in accordance with
past practice;
(h) Any payment of any pension, retirement,
profit-sharing, or bonus payment, or other employee welfare or
benefit payment, other than those required by any contract or
plan listed in Schedule E or Schedule N;
(i) Any incurring or guaranteeing of any debt,
obligation, or liability for borrowed money (whether absolute or
contingent and whether or not currently due and payable), except
for endorsement of negotiable instruments for collection or
deposit;
(j) Entering into of any contract, agreement,
arrangement, lease (as lessor or lessee), or license, whether
written or oral, entered into or assumed by or on behalf of any
of the Companies, for more than one year or involving more than
$5,000 in any single case or $25,000 in the aggregate for like
items, except in accordance with past practice in the ordinary
course of business;
(k) Any merger or consolidation of or by any of the
Companies with any other corporation or any acquisition by any of
them of all or any part of the stock or the business or assets of
any other person, firm, association, corporation, business, or
organization;
(l) Except in accordance with past practice in the
ordinary course of business, any change affecting the banking and
safe deposit arrangements or powers of attorney or grants of
agency in effect for any of the Companies, any new financial
institution accounts or safe deposit boxes opened for either of
them or any new powers of attorney or grants of agency executed
or made by any of them;
(m) Any purchase or lease for a valuable consideration of
any property from any officer, director, or employee of the
Companies or any member of his or her family or any entity
affiliated with or controlled by any of the above;
(n) Any sale, lease, disposition, or mortgage, pledge, or
subjection to any lien or encumbrance (other than Permitted
Liens) of, or any waiver of any substantial rights relating to,
any material property or assets, tangible or intangible, of the
Companies other than the purchase and sale of investment
securities;
(o) Any failure by any of the Companies to perform any of
its obligations in any material respect or suffering or
permitting any default to exist under any contract, lease, or
other arrangement to which any of them is a party or by which any
of them may be bound which may result in the termination of such
contract, lease, or agreement or the imposition of material
damages or penalties; or
(p) Any occurrence of any material transaction or entry
into any material agreement other than in the ordinary course of
business or as specifically provided herein.
3.29 Accounts, Notes, and Advances Receivable. All accounts,
notes and advances receivable of CEI and SSLIC reflected on the
Balance Sheet were at the date of the Balance Sheet valid
obligations and collectible in the ordinary course of business
subject to the reserve therefor shown on the Balance Sheet, and
neither CEI, since June 30, 1997, nor SSLIC, since December 31,
1997, has changed its normal credit and collection practices.
3.30 No Undisclosed Liabilities or Agreements. Except as
disclosed in the Balance Sheet or in any of the Schedules to this
Agreement, none of the Companies:
(i) had, as of the date of the Balance Sheet, any
material debts, liabilities, or obligations, whether accrued,
absolute, or contingent and whether due or to become due, except
to the extent set forth in or provided for on the Balance Sheet;
(ii) has incurred, since the date of the Balance Sheet,
any debts, liabilities, or obligations (other than as permitted
by this Agreement, policy liabilities and accruals, and debts,
liabilities, or obligations of the same nature as those set forth
on the Balance Sheet reasonably incurred in the ordinary course
of business after the date of the Balance Sheet, which, in the
aggregate, do not exceed $100,000) which materially adversely
affect its business and financial condition;
(iii) was, as of the date of the Balance Sheet, and since
such date has been, party to any contract or agreement which
materially adversely affected or affects or may reasonably be
expected in the future to materially adversely affect its assets,
liabilities, financial condition, or results of operations; or
(iv) has conducted business other than in the ordinary
course since the date of the Balance Sheet.
3.31 Disclosure. There is no fact or circumstance of which any
of the Companies has knowledge which materially adversely affects
or, in the opinion of any of them, may be expected in the future
to materially adversely affect the assets, liabilities, financial
condition, or results of operations of any of them which has not
been disclosed in writing to SNFC by CEI. Neither this Agreement
nor any document furnished or to be furnished in connection
herewith, as amended or supplemented by CEI by written notice to
SNFC given not less than five business days prior to the Closing
Date, contains or will contain any untrue statement of a material
fact or omits or will omit to state any material fact necessary
to make the statements contained therein, or herein, in the light
of the circumstances under which they are made, not misleading.
3.32 Title to Properties; Liens; Conditions of Properties. (a)
Schedule M and Schedule Q set forth (i) all of the land owned by,
or under an agreement of sale or option to, any of the Companies
at the date hereof and (ii) each of the leases as to which the
annualized rental obligation exceeds $5,000 per year or as to
which the unexpired term exceeds one year (unless cancelable
without penalty on thirty days' notice) pursuant to which any of
the Companies leases (as lessor or lessee) real or personal
property at the date hereof. Schedule R delivered to SNFC sets
forth all the buildings, machinery, vehicles and equipment having
an initial unit value of $3,000 or more ("Fixed Assets") of any
of the Companies, other than real property owned or leased.
Except for Permitted Liens and except for mortgages noted in the
Financial Statements or in the Schedules, the Companies have good
and marketable title in fee simple to all such real property and
all such leases are valid and subsisting and none of them is in
default such as to give rise to cancellation, termination or a
penalty thereunder. None of such Fixed Assets, or real, leased,
or other property is subject to any mortgage, pledge, lien,
encumbrance, conditional sale agreement, security interest, title
retention agreement, or other charge except for Permitted Liens
and except as noted in the Financial Statements or in the
Schedules. There are no outstanding options or rights in any
third person to acquire any of such real estate, leasehold
interests, Fixed Assets. or other property or any interest
therein.
(b) Except as otherwise specified in Schedule R:
(i) the Companies do not occupy and are not
dependent on the right to use the property of others;
(ii) all Fixed Assets, taken as a whole, are
in a good state of repair and operating condition (reasonable
wear and tear and normal usage excepted);
(iii) the Companies' office building conforms in all
material respects with all applicable zoning and land use laws,
ordinances, and regulations and applicable deed restrictions and
other applicable laws relating to health and safety, other than
the Americans with Disabilities Act of 1990, and does not
encroach on property of others; and
(iv) to the knowledge of the Companies, there is no
pending or threatened change of any such zoning or land use law,
ordinance, or regulation, nor any pending or threatened
condemnation of any such property.
3.33 No Liability for Finders' or Financial Advisory Fees. None
of the Companies has incurred any liability for brokerage fees,
finders' fees, agents' commissions, financial advisory fees, or
other similar forms of compensation in connection with this
Agreement or any transaction contemplated hereby.
3.34 Environmental Matters. (a) To the knowledge of the
Companies, no Hazardous Substance (as hereinafter defined) has
been released, discharged, deposited, emitted, leaked, spilled,
poured, emptied, injected, dumped, disposed of, or otherwise
placed or located on, in or under the real property and
improvements described in Schedule Q (the "Real Property") or any
part thereof in a manner that would result in an obligation on
the part of the Companies for the clean-up or removal thereof.
For purposes of this Agreement, "Hazardous Substance" means any
"hazardous substance" as that term is now defined in 42 U.S.C.
9601, any "extremely hazardous substance" as that term is now
defined in 42 U.S.C. 11049(3), any "regulated substance" as that
term is now defined in 42 U.S.C. 6991(2), or any other material
now regulated under any environmental law, statute, regulation,
rule, ordinance, code, license, permit, or order of the United
States, or any state, or any other governing body, authority, or
agency (collectively, "Environmental Laws"). The foregoing
representation specifically excludes and is not applicable to the
use, storage, and handling within the Real Property of substances
customarily used in connection with normal office use provided
(a) such substances are used and maintained in such quantities as
are reasonably necessary for the permitted use of the Real
Property in compliance with all Environmental Laws; and (b) such
substances are not disposed of, released, or discharged on the
Real Property, and shall be transported to and from the Real
Property in compliance with all Environmental Laws.
(b) The Real Property and its present and prior uses during
the Companies' ownership and/or occupancy comply with, and the
Companies are not in violation of, and have not violated in
connection with the conduct of their businesses, any
Environmental Law. Any Hazardous Substances that have been
removed by the Companies from and disposed of off the Real
Property have been handled, transported, stored, treated, and
disposed of in compliance with all Environmental Laws.
(c) Neither any of the Companies nor the Real Property is
subject to any obligations, liabilities, claims, judgments,
orders, settlements, permits, licenses, authorizations,
resolutions of disputes, writs, injunctions or decrees relating
to the use, generation, treatment, storage, disposal,
transportation, presence, release, discharge or emission of any
Hazardous Substance at or affecting the Real Property. In
addition, there are no pending, or, to the knowledge of the
Companies, threatened investigations, citations, suits, actions
or other legal proceedings, or notices of violation resulting
from or connected with the Real Property or the Companies
relating to the use, generation, treatment, storage, disposal,
transportation, presence, release, discharge, or emission of any
Hazardous Substance at or affecting the Real Property.
(d) There are no facts or circumstances in existence known
to the Companies which may give rise to any litigation,
proceedings, investigations, orders, citations, violations,
notices, or liability resulting from or connected with the Real
Property or the Companies relating to the use, generation,
treatment, storage, disposal, transportation, presence, release,
discharge, or emission of any Hazardous Substance.
(e) All permits, licenses, consents and authorizations
necessary for full compliance with all Environmental Laws
applicable to the Real Property have been obtained and are valid
and in full force and effect. No such application, report, or
other document or information filed with or furnished to any
federal, state or local governmental body, authority or agency
contains any untrue statement of material fact or omits any
statement of material fact necessary to make the statements
therein not misleading.
3.35 Information Set Forth in Any Schedule. Any information set
forth in any Schedule or in any of the Financial Statements shall
be deemed set forth in each such Schedule.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SNFC
SNFC represents and warrants to the CEI that:
4.1 Organization and Qualification, Etc. SNFC is duly
organized, validly existing, and in good standing as a Utah
corporation with corporate power and authority under the laws of
the State of Utah and under its charter to enter into this
Agreement and perform its obligations hereunder.
4.2 Authority. The Board of Directors of SNFC has duly
authorized the execution and delivery by SNFC of this Agreement
and the Plan of Merger and the transactions contemplated hereby
and thereby.
4.3 Valid and Binding Obligations. Each of this Agreement and
the Plan of Merger has been duly authorized by SNFC by all
necessary corporate action and constitutes a valid and legally
binding obligation of SNFC in accordance with its respective
terms.
4.4 No Violation of Charter, Etc. The execution and delivery
of this Agreement and the Plan of Merger by SNFC and the
consummation of the transactions contemplated hereby and thereby
are not prohibited by and will not violate any provision of, or
result in a default under, the charter or by-laws of SNFC, any
contract, agreement, or other instrument to which SNFC is a party
or by which its property is bound or any regulation, order,
decree, or judgment of any court or governmental agency or any
law applicable to it.
ARTICLE 5
CONDUCT OF THE BUSINESS OF THE COMPANIES PENDING THE
MERGER
Except as otherwise first approved in writing by SNFC, or
as otherwise set forth in this Agreement, CEI covenants that from
the date hereof until the Effective Time of the Merger or until
this Agreement is terminated in accordance with its terms:
5.1 Conduct Business in Ordinary Course. The business of the
Companies shall be conducted only in the ordinary course, and
none of the properties or assets of any of the Companies shall be
sold or otherwise disposed of, mortgaged, pledged, or otherwise
hypothecated, except in the ordinary course of business or as
otherwise contemplated by this Agreement.
5.2 No Change in Charter or By-Laws. No change shall be made in
the articles of incorporation or by-laws of any of the Companies.
5.3 No Change in Capitalization. No change shall be made (by
reclassification, subdivision, reorganization, or otherwise) in
the authorized or issued capital stock of any of the Companies,
and no options, warrants, or rights to acquire, or securities
convertible into or exchangeable for, any shares of capital stock
of any of the Companies shall be issued or granted (except for
shares issued in the ordinary course of business in accordance
with SSLIC's Agent's Performance Share Plan).
5.4 No Dividends. No dividend or other distribution or payment
shall be declared or made in respect of the outstanding shares of
capital stock of any of the Companies. None of the Companies
shall purchase or redeem or otherwise acquire any of its shares
in exchange for cash or other property or prepay any notes or
other debt.
5.5 No Change in Compensation. Except for regular and customary
increases in the compensation of salaried and hourly employees of
SSLIC made in accordance with past practice (provided that notice
of raises in excess of 5% per annum shall be given to SNFC at
least 10 business days prior to their effective date), no
increase shall be made in the compensation payable or to become
payable by any of the Companies to any of its officers,
employees, or agents, nor shall any bonus, pension, retirement,
profit-sharing, or stock option payment, agency agreement, or
other agreement or arrangement be made by any of them to or with
any such person or persons, nor shall any change be made in any
existing Employee Benefit Plan covering such person or persons;
provided, however, that nothing in this Section shall be
construed to prohibit SSLIC from entering into its standard
agency agreements and standard addenda thereto (copies of which
have been delivered to SNFC) or from adjusting commissions
thereunder in accordance with past practices.
5.6 No Contract Not in Ordinary Course. No contract,
obligation, or commitment (excepting therefrom insurance policies
and annuities issued by SSLIC in the ordinary course of business)
shall be entered into or assumed by or on behalf of any of the
Companies, except normal commitments incurred in the ordinary
course of business (but, except for standard agency agreements
referred to in Section 5.5, not in excess of $5,000 in any single
event or $25,000 in the aggregate for items of like kind); nor
any indebtedness incurred representing borrowed money or the
deferred purchase price of goods or services; nor shall any
material contract, obligation, or commitment be modified or
amended in any material respect or terminated. The foregoing
shall not prohibit the purchase or sale of investment securities
in the ordinary course of business in accordance with past
practice; provided, however, that none of the Companies shall
purchase or sell more than $50,000 of investment securities
without giving two (2) business days' prior notice to SNFC.
5.7 No Changes in Personnel or Financial Institutions. Except
as provided in Section 5.5, no change (other than as required in
the ordinary course of business) shall be made affecting the
personnel, agents, or attorneys-in-fact of any of the Companies
other than the resignations or terminations of any such persons
in the ordinary course of business, and no change shall be made
in the banking or safe deposit arrangements of any of the
Companies.
5.8 Maintenance of Property. Each of the Companies shall
maintain its properties, taken as a whole, in good operating
condition and repair.
5.9 Insurance. Each of the Companies shall continue in full
force and effect, at its expense, (i) all present policies of
casualty, property, fidelity, errors and omissions, directors'
and officers', and workers' compensation insurance which have
been issued to it and (ii) all bonds and/or deposits in respect
of any casualty, fidelity, property, or workers' compensation
risks which are self-insured.
5.10 Business Intact. Each of the Companies shall use its best
efforts to preserve its business organization intact, to retain
the services of its key officers, and of its employees, agents,
and consultants, and to preserve for SNFC the good will of its
agents, customers, and others having business relations with it.
5.11 Insurance Policies and Agency Agreements. CEI shall not
cause or permit SSLIC to write any insurance policies except (a)
on existing policy forms or new policy forms hereafter approved
by the Florida Department of Insurance, copies of which have been
delivered to SNFC, (b) through existing agency arrangements, and
(c) utilizing underwriting standards consistent with those in
effect during the twelve-month period preceding the date hereof;
provided, however, that the foregoing shall not prohibit SSLIC
from entering into agency arrangements pursuant to its standard
agency agreements and standard addenda thereto, copies of which
have been delivered to SNFC.
5.12 Reinsurance. None of the Companies shall sell, reinsure,
or coinsure any insurance policies presently on its books or
written after the date hereof or enter into any representing
arrangements, except as required by this Agreement or in the
normal course of business as to policies issued after the date
hereof.
5.13 Acquisition of Insurance. None of the Companies shall
acquire any existing insurance policies, whether through
reinsurance, coinsurance, or otherwise, other than pursuant to
existing representing arrangements.
5.14 No Capital Contributions. No affiliate or non-affiliate
person shall make any contributions to the capital of any of the
Companies or repay any indebtedness owed to any of them other
than in cash. The term "affiliate" shall mean any person
controlling, controlled by, or under common control with CEI.
5.15 Representations and Warranties. CEI hereby agrees that,
from the date of this Agreement to the Closing Date, except as
otherwise expressly permitted by this Agreement or as SNFC may
otherwise consent to in writing from time to time, none of the
Companies shall engage in any activity or enter into any
transaction which would be inconsistent in any material respect
with any of the representations and warranties set forth in
Article 3 as if such representations and warranties were made at
a time subsequent to such activity or transaction and all
references to the date of this Agreement were deemed to be as of
such later date.
5.16 Necessary Action. As soon as practicable after the
execution of this Agreement, each of the Companies shall take all
necessary corporate and other action and shall use its best
efforts to obtain, or where appropriate assist SNFC in obtaining,
all material consents, orders, and approvals required for
consummation of the transactions contemplated by this Agreement.
Best Efforts to Satisfy Conditions. Each of the Companies
shall use its best efforts to cause all conditions to be
satisfied on or prior to the second business day prior to the
Closing Date.
5.18 Inconsistent Activities. From the date of this Agreement,
unless and until this Agreement has been terminated pursuant to
Section 11.1, or notice of default given by CEI, none of the
Companies shall (i) solicit, directly or indirectly, any offer to
acquire any of the CEI Capital Stock, any of the capital stock of
SSLIC, or all or substantially all of the assets of any of the
Companies, whether by merger, purchase of assets, tender offer,
or otherwise; or (ii) enter into any negotiations or agreements
which contemplate the merger of CEI or SSLIC or the sale of any
of the CEI Capital Stock, any of the capital stock of SSLIC, or
all or substantially all of the assets of any of the Companies to
any person other than SNFC.
5.19 CEI Stockholders' Meeting. CEI shall promptly call a
meeting of the holders of the CEI Common, to be held on or prior
to June 5, 1998 for the purpose of voting upon and approving this
Agreement and the Agreement and Plan of Merger. CEI shall
prepare a notice of shareholders meeting and proxy materials to
be sent to its shareholders in connection with the transactions
contemplated by this Agreement and shall recommend the approval
of this Agreement and the Agreement and Plan of Merger to its
shareholders. As soon as drafts of such notice and proxy
materials are prepared, and at least five business days prior to
the mailing of the definitive notice and proxy materials, CEI
shall deliver a copy of same to SNFC for its review and approval.
5.20 Access to Properties, Files, Etc. Each of the Companies
shall from time to time or at any time from the date hereof to
the Effective Time of Merger, give or cause to be given to SNFC,
its officers, employees, agents, representatives, consultants,
accountants, public accountants, and general or special counsel:
(i) full access during normal business hours to all
the Companies' properties, accounts, books, minute books, deeds,
title papers, insurance policies, licenses, agreements,
contracts, commitments, tax returns (including without limitation
revenue agents' reports and conference reports for the six years
ended with the calendar year 1996), records and files of every
character, equipment, machinery, fixtures, furniture, vehicles,
notes and accounts payable and receivable, and data processing
programs;
(ii) the name of each financial institution in which
the Companies or the trustee or agent of any retirement, pension,
or similar plan to which any of the Companies is a party has an
account or safe deposit box and the names of all persons
authorized to draw thereon or to have access thereto and the name
of each person holding a power of attorney from any of the
Companies;
(iii) promptly upon their becoming available, one
copy of each financial statement, report, notice, or proxy
statement sent by any of the Companies to their shareholders
generally, and of each regular or periodic report and any
periodic statement or written communication, other than
transmittal letters (all such material being collectively
referred to as "Reports"), in respect of Reports filed by any of
the Companies with, or received by any of them in connection
with, Reports from any insurance or securities commission or
department; and
(iv) all such other information concerning the
affairs of the Companies as SNFC may reasonably request.
CEI agrees that any investigation or inquiry made by SNFC
pursuant to this Section shall not in any way affect or diminish
the representations and warranties made with respect to the
Companies in this Agreement. SNFC agrees that any such
investigation or inquiry made by it after the date hereof shall
be conducted in such manner as not to interfere unreasonably in
any material way with the operation of the business of the
Companies. CEI further agrees that from the date of this
Agreement until the Effective Time of the Merger or the
termination of this Agreement, SNFC shall have the right, at
SNFC's expense, at any time during normal business hours, to
locate employees, agents, representatives and/or consultants at
the premises of any of the Companies.
5.21 Correspondence with Regulators. CEI shall promptly provide
SNFC with copies of all correspondence to and from all regulatory
authorities having jurisdiction with respect to any of the
Companies.
5.22 Hart-Scott-Rodino Filing. As soon as practicable after the
execution of this Agreement, CEI will effect all filings by it
required by the Hart-Scott-Rodino Antitrust Improvements Act of
1976 by reason of the transactions contemplated by this
Agreement.
ARTICLE 6
COVENANTS OF SNFC AND THE SHAREHOLDERS
6.1 Necessary Action. As soon as practicable after the
execution of this Agreement, SNFC shall take all necessary
corporate and other action and shall use its best efforts to
obtain, or where necessary to assist CEI in obtaining, all
material consents, orders, and approvals required for the
consummation of the transactions contemplated by this Agreement,
including those enumerated in Article 7.
6.2 Merger Consideration. On or prior to May 20, 1998, SNFC
shall deliver to CEI a document which will set forth the sources
from which the Merger Consideration will be paid by SNFC and
which shall be accompanied by copies of binding commitments for
any required external financing.
6.3 Hart-Scott-Rodino Filing. As soon as practicable after the
execution of this Agreement, SNFC will effect all filings by it
required by the Hart-Scott-Rodino Antitrust Improvements Act of
1976 by reason of the transactions contemplated by this
Agreement.
6.4 Shareholders to Vote in Favor of Merger. Each of the
Shareholders joins in this Agreement for the sole and limited
purpose of irrevocably agreeing to vote its shares of CEI Common
in favor of the Merger and irrevocably appoints George Pihakis
and David Thompson, and each or either of them (with full power
of substitution) as its agent and proxy to vote such shares in
favor of the Merger. Each of the Shareholders represents and
warrants that its agreement set forth in this Section 6.3
constitutes the valid and legally binding obligation of such
Shareholder, enforceable against such Shareholder in accordance
with its terms and that such agreement has been duly authorized
and approved and adopted by or on behalf of each Shareholder that
is not a natural person by all requisite corporate or equivalent
action.
ARTICLE 7
APPROVALS NEEDED FOR MERGER
The consummation of the Merger shall be subject to the
condition that the following approvals, orders, regulatory
requirements, and reports shall have been obtained or complied
with prior to the Closing Date:
7.1 Insurance Regulatory Approvals. SNFC, with the cooperation
of the Companies, will cause an application for the approval of
the transactions contemplated by this Agreement, and all other
required documents, including a proposed management agreement
between SSLIC and SNFC and confirmation of funds letter, to be
filed with the Florida Insurance Department on or prior to May
20, 1998, and will furnish all additional documents or
information which may be required by the Florida Department of
Insurance within ten days after receipt of any request therefor.
All required approvals from the Florida Insurance Department
shall have been obtained prior to the Closing Date. SNFC shall
furnish CEI a copy of the application, all other documents filed
with or delivered to the Florida Insurance Department, and all
correspondence to or from the Florida Insurance Department, and
consents and agrees that the Florida Insurance Department may
furnish CEI with any documents relating to the application and
proceedings thereon that CEI may request.
7.2 Hart-Scott-Rodino Antitrust Improvements Act of 1976. In
the event that the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 is deemed applicable at any time prior to the Closing
Date, said act and the rules and regulations thereunder shall
have been fully complied with by SNFC and CEI (including, without
limitation, compliance with the information furnishing and
waiting period requirements thereof) prior to the Closing Date or
such compliance shall have been waived by the governmental
agencies having authority to give such waiver prior to the
Closing Date.
ARTICLE 8
CONDITIONS
8.1 Conditions Precedent to Obligations of SNFC. The
obligation of SNFC to proceed with the transactions contemplated
hereby is subject to satisfaction of the following conditions
unless waived in writing by SNFC:
(a) Receipt of Approvals. The approvals and actions
required by Article 7 shall have been obtained.
(b) Dissenting CEI Shares; Stockholder Approval. On the
Closing Date there shall be no dissenting CEI shares. Dissenting
CEI shares shall mean for the purpose of this provision shares of
CEI Common the holders of which shall have perfected their rights
as dissenting shareholders under Section 607.1320 of the Florida
Statutes.
(c) Approval by CEI Shareholders. At the shareholders
meeting of CEI held in accordance with Section 5.19, this
Agreement and the Plan of Merger shall have been approved and
adopted by the affirmative vote of the holders of a majority of
the outstanding shares of CEI Common.
(d) Opinion of Counsel for CEI. SNFC shall have received
from Johnston Barton Proctor & Powell LLP, counsel for CEI, an
opinion, dated the Closing Date, in form and substance
satisfactory to SNFC, to the effect that in such counsel's
opinion:
(i) each of the Companies has been duly
incorporated, each is validly existing and in good standing under
the laws of its state of incorporation, and each is duly licensed
or admitted to transact business and is in good standing in each
of the states listed in Schedule F and, to such counsel's
knowledge, none of them is required to qualify to do business or
to be licensed in any other state, and each has full corporate
power to own its properties and carry on its business as
presently conducted;
(ii) the authorized and outstanding capital stock of
each of the Companies is as stated in this Agreement, and is duly
authorized, validly issued, fully paid, and nonassessable;
(iii) the execution, delivery, and performance of
this Agreement and the Plan of Merger will not (x) conflict with
or result in any violation of any of the terms or provisions of
the charter or by-laws of CEI or any of its Subsidiaries or any
loan or credit agreement, indenture, mortgage, note, or other
agreement known to such counsel after due inquiry affecting CEI
or any of its Subsidiaries or to which any of them is a party or
by which any of them or any of their properties or assets is or
may be bound or (y) to such counsel's knowledge, after due
inquiry, violate any judicial or administrative order, award,
judgment, or decree entered against or affecting CEI or any of
its Subsidiaries;
(iv) no authorization, consent, or approval of, or
registration or filing with, any governmental or public body or
authority of the United States, or of any jurisdiction thereof or
therein, is required on the part of the Companies for the
performance of this Agreement and the consummation of the
transactions contemplated herein other than such as have been
obtained;
(v) there are no actions or proceedings seeking to
prevent or enjoin the transactions contemplated by this Agreement
and the Plan of Merger known, after due inquiry, to such counsel
to be pending or threatened;
(vi) all corporate and stockholder action required
to be taken or instituted by and on the part of CEI to authorize
the transactions contemplated by this Agreement and the Plan of
Merger has been duly and properly taken;
(vii) this Agreement has been duly executed and
delivered by CEI and the Shareholders and the Plan of Merger and
the Escrow Agreement have been duly executed and delivered by
CEI, and the Agreement, Plan of Merger and Escrow Agreement
constitute valid and binding obligations of CEI in accordance
with their respective terms, subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws, in
each case relating to or affecting the enforcement of creditor's
rights generally and general principles of equity (regardless of
whether enforcement of such obligations is considered in a
proceeding in equity or at law); and
(viii) to the knowledge of such counsel, except as
set forth in this Agreement and any document furnished to SNFC in
connection herewith, there are no pending or threatened legal
proceedings to which any of them is a party or of which the
property of any of them is the subject.
In giving such opinion, such counsel may rely upon opinions
of other counsel satisfactory to it. As to matters of fact
asserted to be to such counsel's knowledge or such counsel's
knowledge after due inquiry, such counsel may rely upon
certificates of officers of CEI or any of its Subsidiaries,
provided that such counsel shall deliver copies thereof to SNFC
contemporaneously with its opinion, and upon review by such
counsel of its files with respect to matters on which it has
represented one or more of the Companies.
(e) Compliance. All of the terms and conditions
contained in this Agreement to be complied with and performed by
CEI at or before the Closing Date shall have been complied with
and performed.
(f) Representations and Warranties True and Correct. The
representations and warranties made by CEI in this Agreement
shall be true and correct, at and as of the Closing Date, with
the same force and effect as though such representations and
warranties had been made at and as of the Closing Date, except
for changes contemplated by this Agreement; provided, however,
that the foregoing condition shall be deemed to be satisfied
except where any failure or failures to be true and correct shall
reasonably be expected to result, in the aggregate, in an adverse
change, after tax effect, in the financial condition or results
of operations of the Companies or, following the Effective Time
of the Merger, of SNFC, in excess of the amount of $250,000. CEI
shall have delivered to SNFC a certificate, dated the Closing
Date, signed by an executive officer of CEI evidencing compliance
with the provisions of paragraphs (e) and (f) of this Section
8.1.
(g) Litigation. There shall not have been instituted any
action or proceeding before any court or governmental agency or
other regulatory or administrative agency or commission, by any
governmental or other regulatory or administrative agency or
commission or any private person, challenging the transactions
contemplated hereby or otherwise relating to the transactions
contemplated hereby or pursuant to the terms of the Plan of
Merger.
(h) Governmental Action. There shall not have been any
action taken by any court, government, or governmental agency,
domestic or foreign, rendering any party to this Agreement or the
Plan of Merger unable to consummate the transactions contemplated
hereby or thereby, otherwise making such transactions illegal or
limiting in any material manner the right of SNFC to exercise
directly or indirectly control over any aspect of the business of
any of the Companies.
(i) Letter from Officers of CEI and SSLIC. SNFC shall
have received a letter, dated the Closing Date, signed by George
Pihakis and David C. Thompson stating: (i) during the period
from June 30, 1997 to a specified date not more than five (5)
days prior to the date of such letter, there has not been any
change in the capital stock or indebtedness of CEI except as set
forth therein; and (ii) during the period from December 31, 1997
to a specified date not more than five (5) days prior to the date
of such letter, there has not been any change in the Capital
Stock of SSLIC or any decrease (other than the decreases set
forth in Schedule U delivered to SNFC) exceeding $25,000, in
Statutory Net Capital and Surplus of SSLIC which results from
corrections or changes in the assets or liabilities or both as
reported in SSLIC's Statutory Annual Statement. For the purposes
of this section, "Statutory Net Capital and Surplus" shall mean
the sum of the amounts indicated on lines 29 and 37, column 1,
page 3, of SSLIC's Statutory Annual Statement for the year ended
December 31, 1997.
(j) Investments. CEI shall, not later than three days
prior to the Closing Date, have furnished SNFC with a schedule
identifying all sales of securities in its portfolio and the
portfolio of SSLIC and all new investments in both such
portfolios from January 31, 1998, to the date of such schedule.
(k) No Impairment of Agreements. Except as disclosed
herein, there shall be no agreement, contract, license, lease,
franchise, permit, or other instrument of any of the Companies,
as to which the interest of any of them will be impaired by the
Merger, which will materially and adversely affect the assets,
liabilities, financial condition, or results of operations of any
of them.
(l) Resignation of Officers and Directors. Each officer
and director of the Companies as shall have been requested by
SNFC shall have executed a letter containing the resignation of
such person as such officer and/or director effective as of the
Effective Time of the Merger or at such date as SNFC shall
request.
(m) Legal Matters. All actions, proceedings,
instruments, and documents required to carry out this Agreement
and the Plan of Merger and to consummate the transactions
contemplated hereby and all other related legal matters shall be
in all material respects to the reasonable satisfaction of
counsel for SNFC.
(n) Receipt of Certain Documents. CEI shall have
delivered, or at SNFC's option made available, to SNFC on or
before the Closing Date the following items:
(i) A copy of the resolutions of the Board of
Directors and Shareholders of CEI adopting and approving this
Agreement and the Plan of Merger and authorizing the transactions
contemplated hereby and thereby, certified by the secretary or an
assistant secretary of CEI;
(ii) A certificate of the Insurance Department
of each state listed in Schedule F showing SSLIC to be licensed
as an insurer and in good standing;
(iii) One or more certificates of the appropriate
secretary of state (or other government official) as of a recent
date showing each of the Companies to be validly existing and in
good standing;
(iv) One or more certificates of the
Department of Revenue (or other government official) of the state
of incorporation (and, if different, of the state where its
principal place of business is located) of each of the Companies
showing that all income tax and premium tax returns required to
be filed as of such date by each of the Companies and all reports
required to be filed by them through seven (7) business days
prior to the Closing Date have been duly filed and that the taxes
reflected in such returns and reports have been duly paid;
(v) The resignations of all of the officers and
directors of each of the Companies as shall have been requested
by SNFC;
(vi) The minute books of each of the Companies
and with respect to CEI and IC, their respective stock registers
and, with respect to SSLIC, a certificate from SSLIC's transfer
agent, as of a recent date, showing the number of shares of SSLIC
common stock owned of record by CEI;
(vii) All leases, contracts, insurance records,
policies, and other documents affecting the assets and operations
and systems of any of the Companies wherever performed,
including, but not limited to, all electronic data processing
master files and programs in machine readable format and any
documentation and procedures needed for their maintenance not
previously delivered; and
(viii) Such other documents as shall be reasonably
requested by SNFC.
(o) All liabilities of CEI, other than the Debentures,
shall have been paid or discharged on or prior to the Closing
Date.
8.2 Conditions Precedent to Obligations of CEI. The obligations
of CEI to proceed with the transactions contemplated hereby are
subject to satisfaction of the following conditions unless waived
by CEI:
(a) Receipt of Approvals. The approvals and actions
required by Article 7 shall have been obtained.
(b) Opinion of Counsel for SNFC. CEI shall have received
from Mackey Price & Williams, counsel for SNFC, an opinion, dated
the Closing Date, in form and substance satisfactory to CEI, to
the effect that in such counsel's opinion:
(i) SNFC has been duly incorporated and is validly
existing in good standing under the laws of its state of
incorporation;
(ii) each of this Agreement, the Plan of Merger and the
Escrow Agreement has been duly authorized, executed, and
delivered by SNFC by all necessary corporate action and
constitutes the legal, valid, and binding obligation of SNFC in
accordance with its respective terms, subject to the same
limitation as provided in Section 8.1(d)(vii);
(iii) the execution, delivery, and performance of this
Agreement, the Plan of Merger and the Escrow Agreement and the
consummation of the transactions contemplated thereby will not
result in any violation of any of the terms or provisions of the
charter or by-laws of SNFC or any loan or credit agreement,
indenture, mortgage, note, or other agreement or instrument known
to such counsel affecting SNFC or to which SNFC is a party or by
which it or any of its properties or assets is or may be bound;
(iv) no authorization, consent, or approval of, or
registration or filing with, any governmental or public body or
authority of the United States, or of any jurisdiction thereof or
therein, is required on the part of SNFC for the performance of
this Agreement, the Plan of Merger and the Escrow Agreement and
the consummation of the transactions contemplated thereby, except
such as have been obtained;
(v) to the knowledge of such counsel, there are no pending
legal proceedings material to SNFC known to such counsel to which
SNFC is a party or of which the property of SNFC is the subject;
and
(vi) there are no actions or proceedings seeking to
prevent or enjoin the transactions contemplated by this
Agreement, the Plan of Merger and the Escrow Agreement known to
such counsel to be pending or threatened.
In giving such opinion, such counsel may rely upon opinions
of other counsel satisfactory to it and, as to matters of fact,
upon certificates of officers of SNFC, provided that such counsel
shall state that it believes it is justified in relying upon such
certificates and shall deliver copies thereof to CEI
contemporaneously with its opinion.
(c) Compliance and Representations Correct. All of the
terms and conditions contained in this Agreement to be complied
with and performed by SNFC at or before the Closing Date shall
have been complied with and performed in all respects, and the
representations and warranties made by SNFC in this Agreement
shall be correct in all material respects, at and as of the
Closing Date, with the same force and effect as though such
representations and warranties had been made at and as of the
Closing Date, except for changes contemplated by this Agreement.
SNFC shall have delivered to CEI a certificate, dated the Closing
Date and signed by an officer of SNFC, evidencing compliance with
the provisions of this paragraph (c).
(d) Litigation. There shall not have been instituted any
action or proceeding before any court or governmental agency or
other regulatory or administrative agency or commission, by any
governmental or other regulatory or administrative agency or
commission or any private person challenging any of the
transactions contemplated hereby or otherwise directly or
indirectly relating to the transactions contemplated hereby.
(e) Governmental Action. There shall not have been any
action taken by any court, government, or governmental agency,
domestic or foreign, rendering any party to this Agreement or the
Plan of Merger unable to consummate the transactions contemplated
hereby or thereby or otherwise making any such transaction
illegal.
(f) Terms of Merger. The terms and provisions of the
Merger between SNFC and CEI shall be substantially in accordance
with those set forth in the Plan of Merger, which is attached
hereto as Annex II and is hereby made a part of this Agreement.
(g) Legal Matters. All actions, proceedings,
instruments, and documents required to carry out this Agreement
and the Plan of Merger and to consummate the transactions
contemplated hereby and all other related legal matters shall be
in all material respects to the reasonable satisfaction of
counsel for CEI.
ARTICLE 9
ACCESS TO INFORMATION
9.1 Pre-Closing Access. CEI shall give SNFC's representatives,
agents, consultants, accountants, and attorneys full access as
set forth in Section 5.20. SNFC agrees that it will hold in
strict confidence all documents and information concerning CEI so
furnished (except that such documents and information may be
disclosed to SNFC's independent accountants and counsel in like
confidence and to any governmental authority reviewing the
transactions contemplated by this Agreement), and, if the
transactions contemplated by this Agreement shall not be
consummated, such confidence shall be maintained (except to the
extent that such information was previously known to SNFC or any
of its affiliates, in the public domain or later acquired by SNFC
or any of its affiliates from other legitimate sources or
thereafter through no fault of SNFC becomes information generally
available to the public) and upon written request from CEI all
such documents shall immediately thereafter be returned to the
party which furnished the particular document to SNFC.
9.2 Access to Accountant's Records. Each of the Companies shall
direct its independent accountants (KPMG) to grant access to all
documents in their possession concerning any of the Companies,
including their working papers, to representatives of SNFC, at
the expense (if any) of SNFC.
9.3 Post-Merger Access. After the Effective Time of the Merger,
SNFC agrees that it shall give those persons who were CEI's
officers, directors, attorneys, and accountants immediately prior
to the Closing reasonable access to the records of the Companies
in connection with any litigation that may arise under this
Agreement or any requirements of law or government regulations
which may be applicable.
ARTICLE 10
INDEMNIFICATION
10.1 Indemnification by CEI. CEI, regardless of any prior
knowledge, inspection, or investigation on the part of SNFC,
hereby agrees to indemnify and hold harmless SNFC against and in
respect of any direct out-of-pocket loss, damage, or expense
arising out of:
(a) Any claim, liability, or obligation suffered or
incurred by SNFC resulting from or arising out of (i) any
misrepresentation, breach, or non-fulfillment of any
representation, warranty, covenant, or agreement on the part of
CEI contained in this Agreement; or (ii) the CEI Lawsuit or the
SSLIC Lawsuit, other than attorneys' fees and expenses incurred
in the prosecution of either such lawsuit; and
(b) All actions, suits, investigations,
proceedings, demands, assessments, judgments, reasonable
attorneys' fees, direct out-of-pocket costs and expenses incident
to the foregoing, including (but not limited to) any audit or
investigation by any governmental entity.
10.2 Indemnification by SNFC. SNFC, regardless of any prior
knowledge, inspection or investigation on the part of CEI, hereby
agrees to indemnify and hold harmless CEI against and in respect
of any direct out-of-pocket loss, damage, or expense arising out
of:
(a) Any claim, liability, or obligation suffered or
incurred by CEI resulting from or arising out of any
misrepresentation, breach, or non-fulfillment or any
representation, warranty, covenant, or agreement on the part of
SNFC contained in this Agreement; and
(b) All actions, suits, investigations,
proceedings, demands, assessments, judgments, reasonable
attorneys' fees, direct out-of-pocket costs, and expenses
incident to the foregoing, including (but not limited to) any
audit or investigation by any governmental entity.
10.3 Survival of Obligation to Indemnify. Except with respect
to the obligation of SNFC to pay an amount equal to 57.4% of the
SSLIC Lawsuit Amount and an amount equal to the CEI Lawsuit
Amount to the Disbursing Agent, which shall survive until such
amounts are paid, the mutual indemnification obligations of SNFC
and CEI shall survive until the later of (i) eighteen (18) months
after the date of this Agreement or (ii) twelve (12) months after
the Effective Time of the Merger (the "Indemnification Period"),
and shall continue thereafter only with respect to matters of
which the party seeking indemnity hereunder shall have given the
other party and the Disbursing Agent written notice as provided
herein at least ten (10) days prior to the expiration of the
Indemnification Period. After the Effective Time of the Merger,
the former holders of CEI Common and Debentures, pro rata in
accordance with their former ownership of CEI Common and
Debentures, shall succeed to CEI's indemnification rights under
this Article 10 and other rights under this Agreement; provided,
however, that the indemnification rights of any holder of an
outstanding Debenture shall expire upon full payment of the
principal of, and accrued interest on, such Debenture.
10.4 Notice and Procedure. Either party claiming indemnity
hereunder (hereinafter referred to as the "Indemnified Party")
shall give the party against whom indemnity is sought
(hereinafter referred to as the "Indemnifying Party") and the
Disbursing Agent prompt written notice after obtaining knowledge
of any claim or the existence of facts as to which recovery may
be sought against the Indemnifying Party because of the indemnity
provisions set forth in this Article 10. If such claim for
indemnity arises in connection with a legal action instituted by,
or by a claim made by, a third party (hereinafter a "Third Party
Claim"), the Indemnified Party hereby agrees that, within ten
(10) business days after it is served with notice of the
assertion of any Third Party Claim for which it may seek
indemnity hereunder, the Indemnified Party will notify the
Indemnifying Party in writing of such Third Party Claim.
If the claim for indemnity arises in connection with a
Third Party Claim, the Indemnifying Party shall have the right,
at any time after receipt of notice of such claim from the
Indemnified Party, to assume the defense (which assumption may be
made under a reservation of rights) and to control the settlement
and compromise of such action or claim at its sole expense. The
Indemnified Party shall cooperate in such defense as reasonably
necessary to enable the Indemnifying Party to conduct its
defense, including providing the Indemnifying Party with
reasonable access to such records as may be relevant to its
defense. The Indemnifying Party shall be entitled to settle any
such Third Party Claim without the prior written consent of the
Indemnified Party provided that the Indemnifying Party provides
the Indemnified Party with reasonable assurances that the
Indemnified Party will be fully indemnified by the Indemnifying
Party in connection with any such Third Party Claim. The
Indemnified Party shall be entitled to retain its own counsel at
its own expense in connection with any Third Party Claim that the
Indemnifying Party has elected to defend. If the Indemnifying
Party elects not to conduct the defense of a Third Party Claim,
the Indemnified Party may defend and/or settle such Third Party
Claim; provided, however, that the Indemnifying Party shall not
be liable for any costs, damages, or expenses arising out of any
settlement effected without its prior written consent, unless at
the time of such settlement the Indemnifying Party, upon being
fully informed regarding the terms of such settlement and the
facts and circumstances regarding the Third Party Claim, denies
liability to the Indemnified Party for indemnification under this
Agreement. The Indemnified Party and the Indemnifying Party
agree to keep each other reasonably informed as to the progress
of any matter that is the subject of an indemnity claim under
this Agreement. The Indemnified Party further agrees to take any
and all reasonable steps, including (without limitation) those
steps reasonably requested by the Indemnifying Party, to mitigate
any losses, damages, or expenses with respect to any indemnity
claim under this Agreement and to cooperate with the defense
thereof. In the event it is ultimately determined that the
Indemnified Party was not entitled to indemnification under this
Agreement, and the Indemnifying Party has nonetheless assumed the
defense of such asserted liability, then the Indemnified Party
shall, at such time as it is ultimately determined that the
Indemnified Party was not entitled to indemnification, reimburse
the Indemnifying Party for the reasonable costs and expenses,
including reasonable attorney's fees, incurred by the Indemnified
Party in connection with such assumption.
10.5 Limitation on Indemnification Obligations. Except as
provided in the last clause of this sentence, an Indemnified
Party shall not be entitled to recover any amounts under this
Agreement until the total amount for which the Indemnified Party
could seek a recovery exceeds the sum of Fifty Thousand Dollars
($50,000) (the "Threshold Amount"), and then the Indemnified
Party may recover only such sums which are in excess of the
Threshold Amount, but in no event may the Indemnified Party be
entitled to recover an amount under this Agreement in excess of
Five Hundred Thousand Dollars ($500,000) (the "Indemnity
Amount"), except such limitation shall not apply with respect to:
(i) the failure of SNFC to pay an amount equal to 57.4% of the
SSLIC Lawsuit Recovery Amount or an amount equal to the CEI
Lawsuit Recovery Amount to the Disbursing Agent; or (ii) any
indemnification obligation arising out of Southern Security Life
Insurance Company v. PFL Life Insurance Company, Case No.
CV-94-251 in the Circuit Court of the Second Judicial Circuit in
and for Leon County, Florida. Notwithstanding anything to the
contrary contained herein, SNFC shall not be entitled to recovery
under this Article 10 if the subject matter of the claim is
recovered from insurance.
10.6 Indemnification as Exclusive Remedy. Indemnification
pursuant to the provisions of this Article 10 shall be the sole
and exclusive remedy of the parties hereto (except as provided in
Section 2.2(b)) for any misrepresentation or breach of any
warranty, covenant, or agreement contained in this Agreement or
in any closing document executed and delivered pursuant to the
provisions hereof, or any other claim arising out of the
transactions contemplated by this Agreement other than the
failure of SNFC to make the payments provided in Section 2.2(d).
SNFC's sole recourse with respect to such indemnification shall
be against the Holdback Amount.
10.7 No Consequential Damages. With respect to any claim for
indemnity under this Agreement or any dispute among the Parties
arising out of this Agreement, no party shall be entitled to
recover from any other party any consequential damages, except
that such limitation shall not apply in the case of intentional
misrepresentation or fraud on the part of a party.
ARTICLE 11
MISCELLANEOUS
11.1 Termination; Expenses. This Agreement, the Plan of Merger,
and the transactions contemplated by this Agreement and the Plan
of Merger may be terminated at any time, whether before or after
action by the shareholders of CEI as contemplated by Section
5.19:
(a) by action of the Board of Directors of SNFC, provided
that SNFC is not then in default under the terms of this
Agreement, in the event of a failure of a condition set forth in
Section 8.1;
(b) by action of the Board of Directors of CEI, provided
that CEI is not then in default under the terms of this
Agreement, in the event of a failure of a condition set forth in
Section 8.2;
(c) by action of the Board of Directors of SNFC or CEI,
providing that the terminating party is not then in default under
the terms of this Agreement, if the Effective Time of the Merger
shall not occur on or prior to August 31, 1998, as a result of
the failure to obtain any of the approvals required by Article 7
of this Agreement;
(d) by mutual agreement of the Boards of Directors of
SNFC and CEI; or
(e) by action of the Board of Directors of SNFC, if
Shareholders holding a majority of the stock of CEI have not
joined in this Agreement by executing and delivering to SNFC a
copy of Annex I on or prior to ten (10) days from the date
hereof.
If termination shall occur as permitted herein, each party will
pay its own expenses incurred in connection with the proposed
merger at the time of termination. If termination shall not
occur as permitted herein, and either party is in default under
the provisions of this Agreement, the damages of the
non-defaulting party shall be set limited to those forth in
Section 2.2(b).
11.2 Noncompliance by SNFC; Termination by CEI. In the event
SNFC fails to comply with the provisions of Section 6.2 or
Section 7.1 of this Agreement, CEI may, by notice given to SNFC
not more than twenty (20) days from the date of such
noncompliance, terminate this Agreement, effective as of the date
of such notice. In the event of such termination, CEI shall be
entitled to receive the SNFC Deposit Amount and the CEI Deposit
Amount shall be refunded to CEI, all in accordance with the
provisions of the Escrow Agreement, and neither CEI nor SNFC
shall have any further liability to the other.
11.3 Rights of Third Parties. This Agreement has been
negotiated by and among the Parties, and no other person shall
have any rights or obligations hereunder. Neither CEI nor SNFC
may assign this Agreement or any interest hereunder, and any such
attempted assignment not in compliance herewith shall be null and
void, except that SNFC may assign this Agreement to a SNFC
subsidiary, provided that any such assignment shall not relieve
SNFC of its obligations hereunder. Except as otherwise provided
herein, this Agreement shall be binding and inure to the benefit
of the parties hereto and their respective successors and
assigns.
11.4 Survival of Representations and Warranties; Indemnities.
The representations, warranties, covenants, and agreements of CEI
and SNFC contained in this Agreement and in any instrument
delivered hereunder shall survive for the period of their
obligation to indemnify, as set forth in Section 10.3; provided,
however, that SNFC's sole remedy for breach of any such
representations, warranties, covenants, and agreements shall be
the recovery of compensatory damages in an amount which does not
exceed the Holdback Amount.
11.5 Prosecution of CEI Lawsuit and SSLIC Lawsuit. From and
after the Closing Date, SNFC shall prosecute the CEI Lawsuit and
shall cause SSLIC to prosecute the SSLIC Lawsuit, shall retain
for such purpose counsel representing CEI in the CEI Lawsuit and
SSLIC in the SSLIC Lawsuit on the date of this Agreement and
shall cause SSLIC to promptly pay 42.6% of the attorneys' fees
and expenses incurred in the SSLIC Lawsuit up to a maximum
amount, without its prior consent, of $42,600. Attorneys' fees
and expenses incurred in the CEI Lawsuit and 54.7% of attorneys'
fees and expenses incurred in the SSLIC Lawsuit shall be paid by
the Disbursing Agent from the Litigation Reserve Fund in
accordance with the provisions of the Escrow Agreement. The
prosecution of the CEI Lawsuit shall be directed by the former
president of CEI, or in the event of his absence or inability to
act, the former executive vice-president of CEI. The prosecution
of the SSLIC Lawsuit shall be directed by the former president of
SSLIC, or, in the event of his absence or inability to act, the
former executive vice-president of SSLIC.
11.6 Prior Agreements; Modifications. This Agreement shall
supersede all prior agreements, documents, or other instruments
with respect to the matters covered hereby. This Agreement may
be amended by an instrument in writing signed by CEI and SNFC
alone; provided, however, that no such amendment entered into
without the written consent of the Shareholders may decrease the
Merger Consideration or alter or change any obligations of the
Shareholders under this Agreement.
11.7 Captions and Table of Contents. The captions and table of
contents in this Agreement are for convenience only and shall not
be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
11.8 Governing Law. The terms of this Agreement shall be
governed by, and interpreted and construed in accordance with the
provisions of, the laws of the State of Florida without regard to
its conflicts of law principles.
11.9 Counterparts. This Agreement may be executed in any number
of counterparts, each of which, when so executed, shall
constitute an original copy hereof.
11.10 Severability. If any clause, provision, or section of this
Agreement is ruled illegal, invalid, or unenforceable by any
court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision, or section shall not
affect any of the remaining provisions hereof.
11.11 Notices. Any notice, request, instruction, or other
document to be given hereunder shall be in writing and by
certified or registered mail, postage prepaid, or by reputable
express courier, addressed as follows:
If to CEI:
755 Rinehart Road
Lake Mary, Florida 32746
Attention: Mr. George Pihakis
With a copy to:
Johnston Barton Proctor & Powell LLP
2900 AmSouth/Harbert Plaza
Birmingham, Alabama 35203
Attention: Don B. Long, Jr., Esq.
If to SNFC:
5300 South 360 West
Salt Lake City, Utah 84123
Attention: Scott M. Quist
With a copy to:
Mackey Price & Williams
170 South Main Street
Suite 900
Salt Lake City, Utah 84101-1655
Attention: Randall Mackey, Esq.
If to the Shareholders:
To their respective addresses as set forth by their
signatures.
If to the Disbursing Agent:
To its address as set forth in the Escrow Agreement.
or to such other address as any party may from time to time
designate to the others in writing.
11.12 Waiver. The accuracy of any representation or warranty,
the performance of any covenant or agreement or the fulfillment
of any condition of this Agreement by CEI or SNFC may be
expressly waived only in writing by the other party. Any waiver
hereunder shall be effective only in the specific instance and
for the purpose for which given. No failure or delay on the part
of CEI or SNFC in exercising any right, power, or privilege under
this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power, or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The rights and
remedies expressly specified in this Agreement are cumulative and
are not exclusive of any rights or remedies which either party
would otherwise have.
11.13 No Finders' Fees. Except as set forth in Schedule V, SNFC
represents and warrants that it has not incurred any liability
for brokerage fees, finders' fees, agents' commissions, financial
advisory fees, or other similar forms of compensation in
connection with this Agreement or any transaction contemplated
hereby.
11.14 Definition of CEI's, SSLIC's, and the Companies' Knowledge.
For the purposes of this Agreement, the knowledge of CEI, SSLIC,
or the Companies shall be deemed to be limited to the actual
knowledge of the individuals identified on Schedule W.
11.15 Definition of SNFC's Knowledge. For the purposes of this
Agreement, the knowledge of SNFC shall be deemed to be limited to
the actual knowledge of the individuals identified in Schedule X.
11.16 Attorneys' Fees. In the event any party hereto institutes
litigation to enforce its rights or remedies under this
Agreement, the party prevailing in such litigation shall be
entitled to receive an award from the non-prevailing party of the
prevailing party's reasonable attorneys' fees and costs incurred
in connection with such litigation. The foregoing shall include
reasonable attorneys' fees and costs (including paralegals' fees)
incurred at trial, on any appeal and in any proceeding in
bankruptcy.
11.17 Consent to Jurisdiction; Waiver of Jury Trial. Each of the
Parties irrevocably consents to the non-exclusive jurisdiction of
the courts of the State of Utah located in the County of Salt
Lake, and of the State of Florida located in the County of
Seminole, and of the United States District Courts for the
District of Utah and for the Middle District of Florida, for the
purposes of any suit, action, or proceeding relating to this
Agreement or the Plan of Merger (a "Related Proceeding") and
irrevocably waives, to the fullest extent it may effectively do
so, (i) any objection it may have to the laying of venue of any
Related Proceeding in any such court, (ii) the defense of an
inconvenient forum to the maintenance of any Related Proceeding
in any such court, and (iii) any right it may have to a jury
trial.
11.18 Cross References. Unless additional information is
provided or the content clearly requires otherwise, references to
a specified Article or Section shall be construed to mean a
reference to the specified Article or Section of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto, intending to be
legally bound hereby, has duly executed this Agreement as of the
date first written above.
CONSOLIDARE ENTERPRISES, INC.
By: Ferris Ritchey, Jr.
Its: President
SECURITY NATIONAL FINANCIAL
CORPORATION
By: Scott M. Quist
Its: Vice President
ANNEX I
AGREEMENT BY CERTAIN SHAREHOLDERS
OF CONSOLIDARE ENTERPRISES, INC.
TO VOTE IN FAVOR OF PLAN OF MERGER
Pursuant to Section 6.3 of that certain Acquisition
Agreement by and among Security National Financial Corporation,
Consolidare Enterprises, Inc. ("CEI"), and the undersigned
Shareholders of CEI, dated as of April 24, 1998, the undersigned
Shareholders of CEI each hereby joins in said Acquisition
Agreement for the sole and limited purposes of (i) agreeing to
the provisions of said Section 6.3, (ii) irrevocably agreeing to
vote its, his or her shares in CEI in favor of the Plan of Merger
described in said Acquisition Agreement, and (iii) irrevocably
appointing George Pihakis and David C. Thompson, and each or
either of them (with full power of substitution), as its, his or
her agent and proxy to vote such shares in favor of said Plan of
Merger at the special meeting of stockholders called for the
purpose of acting on said Plan of Merger.
The respective numbers of shares of CEI owned by the
undersigned are shown in parentheses.
This instrument may be executed in any number of
counterparts, each of which shall be deemed an original, provided
that all Shareholders sign at least one such counterpart. All
such counterparts shall be attached to the Acquisition Agreement.
Executed as of April 24, 1998.
- ------------------------------- ----------------------------
Ferris S. Ritchey, Jr. (326,870) Dolores M. Pihakis, as
Trustee (167,446)
- ------------------------------- -----------------------------
Paula T. Roehm (128,279) A. Thomas Frank (4,995)
- ------------------------------- -----------------------------
John M. Roehm (194,298) Margaret Jeanne Frank
(70,645)
- ------------------------------- -----------------------------
C. Lloyd Zobrist (11,751) Frank A. Hulet and Virginia
Hulet Revocable Trust
(129,180)
- -------------------------------- By:
David C. Thompson Frank A. Hulet, Trustee
- -------------------------------- By:
Patricia M. Thompson Virginia Hulet
(Jointly with D.C.T. 69,043)
- -------------------------------- -----------------------------
The Mullenix Family Johnson Family Trust
Partnership (240,000)( (109,999)
By: By:
Charles W. Mullenix, Trustee Charles W. Johnson, Trustee
- ------------------------------- By:
Charles W. Mullenix Harriet S. Johnson, Trustee
WRCL Company (141,799)
- ------------------------------- By:
Mary Jane Mullenix President
(jointly with C.W.M. 75,548)
Lewis Kassis Trust (293,152)
- -------------------------------- By:
Samuel F. Brewer Lewis E. Kassis, Trustee
- ---------------------------------
Anna T. Brewer Virginia Anne Martin
(jointly with S.F.B. (95,966) (122,987)
(Total number of shares of CEI owned by all Shareholders:
(2,181,958)
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated , 1998,
by and between CONSOLIDARE ENTERPRISES, INC., a Florida
corporation ("CEI"), and SECURITY NATIONAL FINANCIAL CORPORATION,
a Utah corporation ("SNFC", and together with CEI, the
"Constituent Corporations").
RECITALS
WHEREAS, the respective Boards of Directors of the
Constituent Corporations deem it advisable and in the best
interests of each of the Constituent Corporations and their
respective shareholders that a merger of the Constituent
Corporations (the "Merger") be consummated in accordance with the
laws of the States of Utah and Florida, upon the terms and
subject to the conditions set forth in this Agreement and Plan of
Merger, and have, by appropriate resolutions duly authorized,
approved, and adopted this Agreement and Plan of Merger and
directed that it be submitted to their respective shareholders
for adoption.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements and provisions herein contained, the parties agree as
follows:
1 Issued and Outstanding Stock. As of the date
hereof, the authorized capital stock of CEI consists of 5,850,000
shares of Common Stock, par value $0.25 per share (the "CEI
Common Stock"), of which 3,383,144 shares are issued and
outstanding.
2 Merger. CEI shall be merged with and into SNFC,
which shall be the surviving corporation under its present name
and which shall continue to be governed by the laws of the State
of Utah. From and after the Effective Time (as herein defined)
of the Merger, the corporate existence of SNFC, with all its
rights, privileges, and immunities, shall continue unaffected and
unimpaired by the Merger. The corporate existence of CEI, with
all its rights, privileges, and immunities, shall be merged into
SNFC and SNFC shall, as the surviving corporation, be fully
vested therewith in accordance with the applicable laws of the
States of Utah and Florida. The separate existence and corporate
organization of CEI shall cease upon the Effective Time of the
Merger.
No liability or obligation due or to become due, claim, or
demand for any cause existing against the Constituent
Corporations, or any shareholder, officer, or director thereof,
shall be released or impaired by the Merger. No action or
proceeding, whether civil or criminal, then pending by or against
the Constituent Corporations, or any shareholder, officer, or
director thereof, shall abate or be discontinued by the Merger,
but may be enforced, prosecuted, settled, or compromised as if
the Merger had not occurred, or SNFC, as the surviving
corporation, may be substituted in such action or special
proceeding in place of CEI.
3 Effective Time. The Merger shall become effective
(the "Effective Time") at the subsequent time specified in the
Articles of Merger filed with the Department of State of the
State of Florida or, if no time subsequent to such filings is
specified therein, upon the later of the time (i) at which
Articles of Merger are filed with the Division of Corporations
and Commercial Code of the State of Utah and (ii) at which
Articles of Merger are filed with the Department of State of the
State of Florida.
4 Certificate of Incorporation and By-Laws. The
Certificate of Incorporation of SNFC as in effect immediately
prior to the Effective Time shall thereafter continue to be
SNFC's Certificate of Incorporation until amended as provided by
law, and the by-laws of SNFC as in effect immediately prior to
the Effective Time shall thereafter continue to be SNFC's by-laws
until amended as provided in such by-laws or by law.
5 Directors and Officers. The directors and officers
of SNFC in office at the Effective Time shall continue to act as
such and shall hold office until their successors shall have been
elected and qualified.
6 Conversion of Shares. At the Effective Time:
(a) The holders of shares of CEI Common Stock then issued
and outstanding (other than such shares owned by SNFC, held in
the treasury of CEI, or owned by persons who have perfected their
rights as dissenting shareholders under Section 607.1301 et seq.
of the Florida Statutes (the "Appraisal Statute")) and the
Converting Debentureholders, as defined in the Acquisition
Agreement, dated as of April 21, 1998, by and among SNFC, CEI and
certain Shareholders of CEI who have executed Annex I thereto
(the "Acquisition Agreement") shall, by virtue of the Merger, be
entitled to receive, and as soon as practicable after the
Effective Time upon surrender of a certificate or certificates
representing such shares of CEI Common Stock held by such holders
and CEI Convertible Debentures held by such Converting
Debentureholders to the Disbursing Agent to be appointed by SNFC
pursuant to the Acquisition Agreement, shall be paid the amounts
set forth in Section 2.2 of the Acquisition Agreement at the
times provided therein, without interest thereon (except as
provided therein), and all such shares and such Convertible
Debentures, by virtue of the Merger and without any action on the
part of the holders thereof, shall no longer be outstanding and
shall be canceled, and each certificate representing such shares
and each such debenture shall thereafter and until so surrendered
be deemed to represent for all corporate purposes only the right
to receive the cash amount set forth in such Section 2.2. If
payment is to be made to a person other than the registered
holder of the certificate or debenture surrendered, it shall be
a condition of such payment that the certificate or debenture so
surrendered shall be properly endorsed or otherwise in proper
form for transfer, and that the person requesting such payment
shall pay any transfer or other taxes required by reason of the
payment to a person other than the registered holder of the
certificate or debenture surrendered or establish to the
satisfaction of the Disbursing Agent that such tax has been paid
or is not applicable.
(b) Each share of CEI Common Stock either then owned by
SNFC or then held in the treasury of CEI shall, by virtue of the
Merger and without any action on the part of SNFC or CEI, be
canceled, and no consideration shall be received in respect of
any such shares.
7 Appraisal Rights. If any holder of shares of CEI
Common Stock shall properly perfect such holder's appraisal
rights in accordance with the Appraisal Statute (any such
shareholder being hereinafter called a "Dissenting Shareholder"),
then such Dissenting Shareholder shall receive such payment from
SNFC (but only after the value of such shares shall have been
agreed upon or finally determined pursuant to the provisions of
the Appraisal Statute). Anything contained in this Section 7 to
the contrary notwithstanding, if a Dissenting Shareholder shall
have failed to perfect or shall have lost his right of appraisal,
such Dissenting Shareholder shall be entitled to be paid the
amount to which such Dissenting Shareholder would have been
entitled under this Agreement had such shareholder not perfected
such rights.
8 Stock Transfer Book. At and after the Effective
Time, transfers of shares of CEI Common Stock (other than shares
owned by SNFC) outstanding prior to the Effective Time shall not
be made on the stock transfer books of SNFC, as the surviving
corporation.
9 Effects of the Merger. At the Effective Time, all
the rights, privileges, immunities, powers, and purposes and all
the property, real and personal, including subscriptions for
shares, causes of action, and every other asset of CEI shall be
vested in SNFC, as the surviving corporation, without further act
or deed. SNFC, as the surviving corporation, shall assume and be
liable for all the liabilities and obligations of the Constituent
Corporations.
10 Instructions for Surrender of Certificates. Promptly
after the Effective Time, there shall be mailed to each holder of
record of an outstanding certificate which prior thereto
represented shares of CEI Common Stock and to each Converting
Debentureholder a form of letter of transmittal and/or
instructions for use in effecting the surrender of such
certificate or debenture for payment therefor as provided in
Section 6(a) of this Agreement and Plan of Merger.
11 Further Actions. From time to time, as and when
requested by SNFC, as the surviving corporation, or by its
successors or assigns, the proper directors and officers of the
Constituent Corporations last in office shall execute and deliver
or cause to be executed and delivered all such other instruments,
and shall take or cause to be taken all such further or other
actions, as SNFC, as the surviving corporation, or its successors
or assigns, may deem necessary or desirable in order to vest in
and confirm to SNFC, as the surviving corporation, and its
successors and assigns, title to and possession of all the
rights, privileges, immunities, powers, and purposes of CEI, and
all property, real and personal, of CEI, and otherwise to carry
out the intent and purposes of this Agreement and Plan of Merger.
12 Amendments. Subject to applicable law, at any time
before or after approval and adoption by the shareholders of CEI,
this Agreement and Plan of Merger may be amended or supplemented
by additional agreements, articles, or certificates as may be
determined in the judgment of the respective boards of directors
of the Constituent Corporations to be necessary, desirable, or
expedient to further the purposes of this Agreement and Plan of
Merger, to clarify the intention of the parties hereto, to add to
or to modify the covenants, terms, or conditions contained herein
or to effectuate or to facilitate any governmental approval of
the Merger or this Agreement and Plan of Merger, or otherwise to
effectuate or facilitate the consummation of the transactions
contemplated hereby.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement and Plan of Merger to be signed by its duly authorized
officer, all as of the date first above written.
CONSOLIDARE ENTERPRISES, INC.
By:
SECURITY NATIONAL FINANCIAL CORPORATION
By:
ESCROW AGREEMENT
AGREEMENT made and entered into as of April 24, 1998 by and
among SunTrust Bank, Central Florida, N.A., a national banking
association (hereinafter referred to as "Disbursing Agent"),
Security National Financial Corporation, a Utah corporation
(hereinafter referred to as "SNFC"), and Consolidare Enterprises,
Inc., a Florida corporation (hereinafter referred to as "CEI").
Recitals
CEI and SNFC have entered into an Acquisition Agreement
(the "Agreement") dated as of April 24, 1998, by which CEI will
be merged into SNFC (the "Merger"). The Merger will be effective
on the date specified in the Articles of Merger filed with the
Department of State of the State of Florida and the Articles of
Merger filed with the Division of Corporations and Commercial
Code of Utah or if no date is specified therein, the later of the
time (i) at which Articles of Merger are filed with the
Department of State of the State of Florida and (ii) at which
Articles of Merger are filed with the Division of Corporations
and Commercial Code of Utah. Each share of CEI's common stock
issued and outstanding immediately prior to the Effective Time
will be converted into the right to receive the payments provided
in the Agreement.
In accordance with the Agreement, the holders of the
outstanding convertible debentures of CEI will be notified (i) of
their opportunity to elect to receive an amount of cash equal to
the amount that they would receive if they converted their
debentures into common stock of CEI immediately prior to the
Effective Time in accordance with the terms of the debentures and
(ii) of SNFC's intention, promptly after the Effective Time, to
call the debentures held by any holders who do not make such
election. Because holders of debentures will receive more cash
if they make such election than if their debentures are called,
SNFC and CEI anticipate that few, if any, holders of debentures
will fail to make the election described in clause (i).
The parties wish to provide for the delivery of CEI common
stock and convertible debentures and payments by SNFC and CEI to
the Disbursing Agent and for the Disbursing Agent to hold such
payments by SNFC and CEI and to make payments to SNFC, CEI and
the holders of CEI common stock and convertible debentures, all
as provided under and subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, the parties do
hereby agree as follows:
Section 1. Definitions
For purposes of this agreement, the following terms (which
may be used in the plural) have the meanings ascribed below:
(a) "Accrued Commissions and Interest"
shall have the meaning specified in Section 2.2(a)(2) of the
Agreement;
(b) "CEI Lawsuit" means CEI's lawsuit against MCE
Equities, Inc.;
(c) "CEI Lawsuit Recovery Amount" means all amounts
received by CEI or the Buyer in connection with the CEI Lawsuit
after the Closing Date.
(d) "Certificate" means a Stock Certificate or a
Debenture;
(e) "Certificateholder" means a Debentureholder or
a Stockholder;
(f) "Converting Debentureholder" means a
Debentureholder who elects to convert its Debenture(s) into the
right to receive the consideration such Debentureholder would
have received if such Debentureholder had elected to convert such
Debenture(s) into shares of common stock of CEI immediately prior
to the Effective Time;
(g) "Debenture" means one of the 14 1/4%
Convertible Subordinated Debentures of CEI, due September 1,
2002, currently issued and outstanding in the aggregate principal
amount of $1,875,300;
(h) "Debentureholder" means a person who is a
registered holder of a Debenture at the Effective Time;
(i) "Debenture Reserve Amount" means the amount
required for the redemption by SNFC of the Debentures held by
Nonconverting Debentureholders, which the Disbursing Agent shall
calculate by adding to the principal amount of such Debentures
the accrued and unpaid interest (14.25% per annum, payable
monthly on the first day of each month) that will be payable with
respect to such Debentures on the redemption date, which shall be
the first business day following the 20th calendar day after the
Effective Date (and in making such calculation the Disbursing
Agent shall assume that CEI (and SNFC, if applicable) has made
all prior interest payments on time and will make any regularly
scheduled interest payment scheduled to occur prior to the
redemption date on time);
(j) "Default Investment Instructions" means in the
SEI Repurchase Agreement Program;
(k) "Effective Time" means the Effective Time of
the Merger as such term is defined in the Agreement, notice of
which time shall be delivered in writing to the Disbursing Agent
by CEI;
(l) "Effective-Time Consideration Amount" means the
"Merger Consideration," as defined in Section 2.2(a)(2) of the
Agreement, less the Accrued Commissions and Interest, the
Debenture Reserve Amount and the Litigation Reserve Amount and
the amounts provided in Section 2.2(c) of the Agreement;
(m) "Effective-Time Per Share Amount" means the
Effective-Time Consideration Amount divided by the
Post-Conversion Number of Shares;
(n) "Indemnity Escrow Account" means the funds
retained by the Disbursing Agent pursuant to Section 6(c) of this
Agreement and any account or accounts in which such funds may be
held by the Disbursing Agent;
(o) "Holdback Payment Date": means the later of
(i) January 3, 2000, or (ii) the first business day following the
date that is the one-year anniversary of the Effective Time;
(p) "Litigation Reserve Account" means the account
in which the Litigation Reserve Amount, interest thereon, and
other funds required to be deposited therein are held by the
Disbursing Agent;
(q) "Litigation Reserve Amount" means the sum of
$157,400;
(r) "Nonconverting Debentureholder" means a
Debentureholder who does not make the election required in order
to become a Converting Debentureholder;
(s) "Permitted Investments" means (i) direct
obligations of, or obligations guaranteed by, the United States
of America, (ii) Federal Agency obligations including the Federal
Home Loan Mortgage Corporation, the Federal National Mortgage
Association, and the Federal Home Loan Banks, (iii) repurchase
agreements fully collateralized by the securities named in (i)
and (ii) above, including the SEI Repurchase Agreement Program,
and (iv) certificates of deposit of financial institutions
(including the Disbursing Agent) having a Moody's short term
rating of P-1 or better or equivalent rating from another
nationally recognized rating bureau;
(t) "Post-Conversion Number of Shares" means the
sum of 3,383,144 plus the quotient of the face amount of the
Debentures held by the Converting Debentureholders divided by
$2.10;
(u) "SSLIC Lawsuit" means SSLIC's lawsuit against
O'Neil, Lee and West, Inc., Hartford Insurance Company of the
Southeast and United States Fire Insurance Company;
(v) "SSLIC Lawsuit Recovery Amount" means all
amounts received by SSLIC in connection with the SSLIC Lawsuit;
(w) "Stock Certificate" means a certificate
evidencing the common stock of CEI and held by a Stockholder; and
(x) "Stockholder" means a registered holder of
shares of CEI common stock at the Effective Time.
Section 2. Appointment of Escrow Agent and Disbursing Agent.
SNFC appoints the Disbursing Agent as escrow agent and disbursing
agent in connection with the Merger and authorizes it to effect
the exchange of Certificates for cash and to perform the other
duties set forth herein, all in accordance with the terms of this
agreement. Prior to the Effective Time, funds held by the
Disbursing Agent shall be invested at the written direction of
SNFC, with the concurrence of CEI, in Permitted Investments. If
the Disbursing Agent has not received investment direction, funds
will be invested in accordance with the Default Investment
Instructions. It is agreed that funds held by the Disbursing
Agent after the Effective Time will be invested in accordance
with the Default Investment Instructions.
(a) Delivery of SNFC Deposit Amount. In accordance with
the Agreement, on the date hereof, SNFC will cause $100,000 (the
"SNFC Deposit Amount") to be delivered to the Disbursing Agent in
immediately available funds. The Disbursing Agent agrees to hold
the SNFC Deposit Amount, together with the proceeds of the
investment thereof, in escrow and deliver the SNFC Deposit Amount
and the proceeds of the investment thereof to the person(s)
designated below under the following conditions:
(i) To the Certificateholders after the
Effective Time, as described below; or
(ii) To CEI upon receipt of written demand
therefor (the "Demand"), which Demand shall state: (i) that SNFC
has breached its obligations and failed to close under the
Agreement and specifically setting forth the facts and
circumstances underlying such breach or (ii) that CEI has
terminated the Agreement pursuant to Section 11.2 thereof. The
Disbursing Agent shall not honor such Demand until seven (7) days
have elapsed after the Disbursing Agent has delivered a copy of
the Demand to SNFC, nor thereafter if the Disbursing Agent shall
have received a written notice of objection (the "Objection")
from SNFC in accordance with the provisions of subsection (c) of
this Section; or
(iii) To SNFC, upon Demand therefor, which
Demand shall state: (i) that this agreement has been terminated
in accordance with the provisions hereof and that SNFC is not in
default under the Agreement, (ii) that the Agreement has been
terminated in accordance with the provisions thereof and that
SNFC is not in default under the Agreement, or (iii) that CEI has
defaulted in the performance of the Agreement and, in either
instance, specifically setting forth the facts and circumstances
underlying the same. The Disbursing Agent shall not honor such
Demand until seven (7) days have elapsed after the Disbursing
Agent has delivered a copy of the Demand to CEI or thereafter if
the Escrow Agent shall have received an Objection from CEI in
accordance with the provisions of subsection (c) of this Section.
(b) Delivery of CEI Deposit Amount. In accordance with the
Agreement, on the date hereof, CEI will cause $100,000 (the "CEI
Deposit Amount") to be delivered to the Disbursing Agent in
immediately available funds. The Disbursing Agent agrees to hold
the CEI Deposit Amount, together with the proceeds of the
investment thereof, in escrow and deliver the CEI Deposit Amount
and the proceeds of the investment thereof to the person(s)
designated below under the following conditions:
(i) To SNFC, after the Effective Time; or
(ii) To SNFC, upon receipt of written demand
therefor (the "Demand"), which Demand shall state that CEI has
breached its obligations and failed to close under the Agreement
and specifically setting forth the facts and circumstances
underlying such breach. The Disbursing Agent shall not honor
such Demand until seven (7) days have elapsed after the
Disbursing Agent has delivered a copy of the Demand to CEI, nor
thereafter if the Disbursing Agent shall have received a written
notice of objection (the "Objection") from CEI in accordance with
the provisions of subsection (c) of this Section; or
(iii) To CEI, upon Demand therefor, which
Demand shall state: (i) that this agreement has been terminated
in accordance with the provisions hereof and that CEI is not in
default under the Agreement, (ii) that the Agreement has been
terminated in accordance with the provisions thereof and that CEI
is not in default under the Agreement, (iii) that SNFC has
defaulted in the performance of the Agreement and, in either
instance, specifically setting forth the facts and circumstances
underlying the same or (iv) in that CEI has terminated the
Agreement, pursuant to Section 11.2 thereof. The Disbursing
Agent shall not honor such Demand until seven (7) days have
elapsed after the Disbursing Agent has delivered a copy of the
Demand to SNFC nor thereafter if the Escrow Agent shall have
received an Objection from SNFC in accordance with the provisions
of subsection (c) of this Section.
(c) Upon receipt of a Demand from SNFC or CEI, as
the case may be, pursuant to subsection (a) or (b) of this
Section, the Disbursing Agent shall promptly deliver a copy of
the Demand to the other party. The other party shall have the
right to object to the delivery of the SNFC or CEI Deposit Amount
by filing an Objection with the Disbursing Agent within seven (7)
days after the giving of a copy of the Demand from the Disbursing
Agent. Upon receipt of an Objection, the Disbursing Agent shall
promptly mail a copy thereof to the party who filed the Demand.
(d) In the event the Disbursing Agent shall have
received an Objection within the time period provided for in
subsection (c) of this Section, the Disbursing Agent may (i)
continue to hold the SNFC or CEI Deposit Amount until receipt of
written notice from CEI and SNFC directing the disbursement of
such Deposit Amount, in which case the Disbursing Agent shall
then disburse such Deposit Amount in accordance with said
direction, or (ii) deposit such Deposit Amount with a court of
competent jurisdiction and bring an action for interpleader, the
costs thereof to be borne by whichever of CEI or SNFC is the
losing party. In the event of litigation between CEI and SNFC,
the Disbursing Agent shall deliver any Deposit Amount then held
by the Disbursing Agent to the clerk of the court in which said
litigation is pending.
(e) The Disbursing Agent may act upon any
instrument or other writing believed by it in good faith to be
genuine and to be signed and presented by the proper person, and
it shall not be liable in connection with the performance of any
duties imposed upon the Disbursing Agent by the provisions of
this agreement, except by reason of the Disbursing Agent's gross
negligence or willful default or failure to comply with the terms
of this agreement.
(f) If SNFC defaults under the Agreement, SNFC and
CEI have agreed that the damages that CEI will sustain as a
result thereof will be substantial but will be difficult to
ascertain. Accordingly, SNFC and CEI have agreed that in the
event of such default CEI shall have the right to retain the SNFC
Deposit Amount and the proceeds of the investment thereof as and
for its liquidated damages and sole remedy, and upon such
retention neither party shall have any further claim against the
other party and this agreement shall be of no further force and
effect.
(g) If CEI defaults under the Agreement, SNFC and
CEI have agreed that the damages that SNFC will sustain as a
result thereof will be substantial but will be difficult to
ascertain. Accordingly, SNFC and CEI have agreed that in the
event of such default SNFC shall have the right to retain the CEI
Deposit Amount and the proceeds of the investment thereof as and
for its liquidated damages and sole remedy, and upon such
retention neither party shall have any further claim against the
other party and this agreement shall be of no further force and
effect.
Section 3. Stock Records; Debentureholders. On or prior to May
10, 1998, CEI shall deliver the following to the Disbursing
Agent:
(a) a list of all Certificateholders as of April
30, 1998, using their names as they appear on CEI's stock
register and register of Debentures, and specifying the following
with respect to each Certificateholder:
(i) last known address;
(ii) the number of each
Certificate held and the number of shares or principal amount
represented by each Certificate; and
(iii) Taxpayer Identification
Number;
(b) a stop list of Certificates reported lost and
replaced, showing the registered owner of the lost Certificate,
the Certificate number, the number of shares represented by the
Certificate, the number of the replacement Certificate, and the
name of the person to whom the replacement Certificate was
issued;
(c) a certificate of an officer of CEI that the
lists specified in subsections (a) and (b), above, are true and
correct as of April 30, 1998, and as to other matters that the
Disbursing Agent reasonably requires.
The stock transfer books of CEI shall be closed as of the
midnight immediately preceding the Effective Time, and no
transfer of any CEI shares shall be registered after that time.
Not later than the Effective Time, CEI shall deliver to the
Disbursing Agent a list of all transfers of CEI shares and
Debentures since April 30, 1998, showing the name of each buyer
and seller, the number of shares transferred, the Certificate
numbers of the Certificates evidencing the Certificates
transferred, and the transferees' addresses. CEI shall give the
Disbursing Agent written notice of the Effective Time.
Section 4. Initial Mailing to Certificateholders. On or before
June 1, 1998, CEI shall supply the Disbursing Agent with a
sufficient number of copies of letters of instruction or cover
letters from CEI to Certificateholders and copies of a letter of
transmittal. The Disbursing Agent shall supply outgoing and
return envelopes to be used in connection with the distribution
of the letters of transmittal to Certificateholders. As promptly
as practicable after the delivery thereof by CEI, the Disbursing
Agent shall cause the letters of transmittal to be mailed first
class, postage prepaid, to each Certificateholder.
Section 5. Preparation for Exchange. Not later than 11:00 a.m.
(Eastern Time) on the Closing Date, SNFC shall make the payment
to the Disbursing Agent provided in Section 2.2(d)(i) of the
Agreement, from which payment, together with the Deposit Amount,
the Disbursing Agent shall issue checks to the
Certificateholders (including checks to any Nonconverting
Debentureholders), in the aggregate amount of the Merger
Consideration, less the Accrued Commissions and Interest and the
Litigation Reserve Amount and shall deposit the Litigation
Reserve Amount in the Litigation Reserve Account. Based on the
lists provided under Section 3 of this agreement, the Disbursing
Agent (a) shall determine the amount of cash that each
Stockholder and Converting Debentureholder is to receive upon
surrender of such Certificateholder's Certificate(s) by allotting
to each such person an amount equal to the product of the
Effective-Time Per Share Amount multiplied by the number of CEI
shares held by such person (if a Stockholder) or the whole number
of CEI shares into which a Converting Debentureholder's
Debenture(s) are convertible (if a Converting Debentureholder).
Section 6. The Exchange; Subsequent Distributions by Disbursing
Agent.
(a) The Disbursing Agent shall receive and examine
Certificates and accept Certificates that are:
(i) identified in the list of Certificateholders
referred to in paragraph 3 of this agreement, and
(ii) accompanied by a duly executed letter of
transmittal, in one of the forms provided to the Disbursing Agent
pursuant to Section 4 of this agreement. If such letter of
transmittal provides that payment is to made other than to the
registered holder, the signature(s) on such letter of transmittal
must be guaranteed by a bank, broker or other institution which
is a member of the Medallion Signature Guaranty Program (each an
"Eligible Institution") unless a signature is that of an Eligible
Institution. In each case where the letter of transmittal or any
other document has been improperly completed or executed or some
other irregularity exists, the Disbursing Agent will endeavor to
inform the presenter of the need for fulfillment of all
requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
After the Effective Time and upon receipt of the foregoing
documents from a Stockholder or Converting Debentureholder, the
Disbursing Agent shall prepare and mail a check payable to the
Stockholder or Converting Debentureholder or to a person
specified by the Stockholder in the letter of transmittal, in an
amount determined in accordance with Section 5 of this agreement.
Notwithstanding the foregoing, the Disbursing Agent shall not
require the signature of a Stockholder or Converting
Debentureholder to be guaranteed if it receives the written
directions of both CEI and SNFC that a guaranty of the signature
of a specified Stockholder or Converting Debentureholder is not
required.
(b) As promptly as practicable after its receipt of any
called Debenture, the Disbursing Agent shall mail to such
Debentureholder a check for the amount payable to such
Debentureholder pursuant to the terms of the Debenture which
shall be paid from the Debenture Reserve Amount.
(c) Pursuant to the Agreement, SNFC has agreed to pay to
the Disbursing Agent the Accrued Commissions and Interest. The
Accrued Commissions and Interest shall be paid, upon receipt by
the Disbursing Agent, to each Stockholder and Converting
Debentureholder, prorata, in proportion to the cash distribution
to which each was entitled at the Effective Time.
(d) From the Litigation Reserve Account, the Disbursing
Agent shall pay the fees and expenses billed by the law firms of
Johnston Barton Proctor & Powell LLP, Birmingham, Alabama and
Mateer & Harbert, P.A., Orlando, Florida, in the CEI Lawsuit and
54.7% of the fees and expenses billed by the law firms of
Johnston Barton Proctor & Powell LLP and Mateer & Harbert, P.A.,
in the SSLIC Lawsuit. The Disbursing Agent shall pay such fees
and expenses from the Litigation Reserve Account upon receipt of
statements from the law firms of Johnston Barton Proctor & Powell
LLP and Mateer & Harbert, P.A.
(e) Pursuant to the Agreement, SNFC has agreed to pay to
the Disbursing Agent the CEI Lawsuit Recovery Amount and 57.4% of
the SSLIC Lawsuit Recovery Amount which shall be deposited in the
Indemnity Escrow Account. Such funds shall be held by the
Disbursing Agent until the total amount held in the Indemnity
Escrow Account is $500,000. All additional such funds received
by the Disbursing Agent after the total amount held in the Escrow
Account reaches $500,000 shall be paid, upon receipt by the
Disbursing Agent, to each Stockholder and Converting
Debentureholder, pro rata, in proportion to the cash distribution
to which each was entitled at the Effective Time.
(f) Provided that the Disbursing Agent has not received
written notice from SNFC of an indemnification claim (which
notice has not been withdrawn) (such notice, an "Indemnity Claim
Notice"), the Disbursing Agent shall, on the Holdback Payment
Date, pay to each Stockholder and Converting Debentureholder, pro
rata in proportion to the cash distribution to which each was
entitled at the Effective Time, the funds remaining in the
Indemnity Escrow Account, less any undistributed portion of the
Debenture Reserve Amount, and less any amount designated pursuant
to Subsection (h) below for transfer to the Litigation Reserve
Account. If the Disbursing Agent has received an Indemnity Claim
Notice (which notice has not been withdrawn), and the Indemnity
Claim Amount (as defined in paragraph (g) below) is less than
$500,000, then the Disbursing Agent shall, on the Holdback
Payment Date, pay to each Stockholder and Converting
Debentureholder, pro rata in proportion to the cash distribution
to which each was entitled at the Effective Time, the funds
remaining in the Escrow Account, less the sum of (i) the
Indemnity Claim Amount and (ii) any undistributed portion of the
Debenture Reserve Amount and (iii) any amount designated pursuant
to Subsection (h) below for transfer to the Litigation Reserve
Account.
(g) Upon receipt of an Indemnity Claim Notice (which
notice shall specifically set forth the amount of (the "Indemnity
Claim Amount"), and the basis for, such claim), at least ten (10)
days prior to the Holdback Payment Date (the Disbursing Agent
shall ignore any such notice which it receives less than ten (10)
days prior to the Holdback Payment Date), the Disbursing Agent
shall give notice thereof by delivering a copy of such Indemnity
Claim Notice to each Stockholder, each Converting
Debentureholder, and each holder of an outstanding Debenture
within ten (10) business days. Each Stockholder and Converting
Debentureholder shall have the right to contest an Indemnity
Claim Notice by filing an objection (a "Response", and each
person filing a Response, a "Respondent") with the Disbursing
Agent within ten (10) days after the giving of a copy of such
Indemnity Claim Notice by the Disbursing Agent. Upon receipt of
a Response, the Disbursing Agent shall promptly give notice
thereof to SNFC. In the event the Disbursing Agent shall have
received a Response within the 10-day time period provided
therefor, the Disbursing Agent may (i) continue to hold the
Indemnity Claim Amount in escrow until receipt of written notice
from SNFC and each Respondent directing the disbursement of the
Indemnity Claim Amount, in which case the Disbursing Agent shall
then disburse the Indemnity Claim Amount in accordance with such
direction, or (ii) deposit the Indemnity Claim Amount with a
court of competent jurisdiction and bring an action for
interpleader, the costs thereof to be borne by whichever of SNFC
and the Respondent(s) is the losing party. In the event of
litigation between the Respondent(s) and SNFC, the Disbursing
Agent shall deliver the Indemnity Claim Amount to the clerk of
the court in which said litigation is pending.
(h) At any time during the period of thirty days prior to
the Holdback Payment Date, the former President of CEI, Ferris S.
Ritchey, Jr., or in the event of his absence or inability to act,
the former Executive Vice-President of CEI, David C. Thompson,
may by notice to the Disbursing Agent, direct that funds be
transferred from the Indemnity Escrow Account to the Litigation
Reserve Account. Upon receipt of such notice, the Disbursing
Agent shall transfer the funds so designated, provided that such
funds are in excess of any Indemnity Claim Amount, from the
Indemnity Escrow Account to the Litigation Reserve Account.
(i) Following receipt by the Disbursing Agent of notice
of termination of the CEI Lawsuit and the SSLIC Lawsuit, which
shall be given to the Disbursing Agent by the law firm of
Johnston Barton Proctor & Powell LLP, Birmingham, Alabama, the
Disbursing Agent shall pay to each Stockholder and Converting
Debentureholder, prorata in proportion to the cash distribution
to which each was entitled at the Effective Time, the funds
remaining in the Litigation Reserve Account.
(j) The Disbursing Agent shall mail all checks by first
class mail, postage prepaid.
Section 7. Cancellation of Certificates. Upon the Effective
Time, the Disbursing Agent shall stamp each Certificate received
by it as canceled and shall so cancel each Certificate
subsequently received by it from any Certificateholder. The
Disbursing Agent shall promptly deliver each canceled Certificate
to CEI.
Section 8. Lost Certificates and Debentures. If a
Certificateholder has lost its Certificate and is therefore
unable to surrender it to the Disbursing Agent, the Disbursing
Agent is authorized to deliver cash to that Certificateholder
only upon the Disbursing Agent's receipt from the
Certificateholder of an affidavit of loss and an indemnity bond
for the benefit of CEI, the Disbursing Agent, and SNFC, in not
less than the amount of the cash payable to the
Certificateholder. Notwithstanding the foregoing, the Disbursing
Agent shall make payment to the Certificateholder who has not
provided the Disbursing Agent with an indemnity bond if SNFC has
delivered to the Disbursing Agent a written instrument
instructing the Disbursing Agent to deliver the cash to the
Certificateholder and agreeing to hold the Disbursing Agent
harmless for making the payment.
Section 9. Tax Requirements. The Disbursing Agent shall
arrange to comply with all requirements under the tax laws of the
United States and applicable states, including those relating to
missing Tax Identification Numbers, and shall file any
appropriate reports with the Internal Revenue Service and the
relevant state tax authorities (e.g., 1099, 1099B, etc.) and mail
copies thereof to Certificateholders. SNFC understands that the
Disbursing Agent is required to deduct 31% on payments to holders
who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over
to the Internal Revenue Service.
Section 10. Termination. If the Effective Time has not occurred,
this agreement is terminated on the earlier of
(i) the close of business on October 30, 1998, or
(ii) the date of the Disbursing Agent's receipt of
a notice signed by CEI and SNFC that the Agreement has been
terminated.
If the Effective Time occurs before the close of business on
October 30, 1998, this agreement shall terminate sixty days after
receipt by the Disbursing Agent of notice of termination of the
CEI Lawsuit and the SSLIC Lawsuit given pursuant to Section 6(i)
of this Agreement. The Disbursing Agent's rights and obligations
under this Section 10, however, shall survive the termination
until the following obligations are satisfied:
(a) If the Effective Time does not occur and the
Agreement is terminated, the Disbursing Agent promptly shall
return all the Certificates to the Certificateholders.
(b) If the Effective Time occurs and, as of the
date this agreement is terminated, a Stockholder or
Debentureholder has not delivered to the Disbursing Agent the
documents specified in Section 6 of this agreement and the
Disbursing Agent has not issued a check to that Stockholder or
Debentureholder in accordance with this agreement, any funds then
held by the Disbursing Agent in the Escrow Account shall be
delivered to SNFC and SNFC shall assume responsibility for making
payments to that Stockholder or Debentureholder upon SNFC's
receipt of the documents specified in Section 6. Notwithstanding
the foregoing, if SNFC, as required or permitted by law, pays to
the State of Florida any unclaimed funds payable in exchange for
shares or options canceled in connection with the Merger, neither
the Disbursing Agent nor SNFC shall be responsible for paying
those funds to the Stockholder or Debentureholder, who will be
entitled to receive those funds, if at all, only from the State
of Florida.
Section 11. Retention of Documents. The Disbursing Agent shall
preserve all documents received by it from any Stockholder or
Debentureholder and not delivered to CEI pursuant to Section 7 of
this agreement for a period of time at least equal to the period
of time the Disbursing Agent preserves other records pertaining
to the transfer of securities.
Section 12. Compensation of Disbursing Agent. SNFC shall pay the
Disbursing Agent's fees and expenses; provided, however, that to
the extent funds are available at the time or subsequently in the
Indemnity Escrow Account, one-half of such fees and expenses
shall be paid from such account.
Section 13. Limitation of Duties. The Disbursing Agent:
(a) shall have no duties or obligations other than
those specified in this agreement;
(b) will be considered as making no representation
and having no responsibilities as to the validity, sufficiency,
value, or genuineness of any Certificate or any shares
represented by any Stock Certificate or any obligation
represented by any Debenture deposited with the Disbursing Agent
and will not be required to, and will not, make a representation
as to the validity of the Merger or the value of any CEI shares
or any Debenture;
(c) shall not be obligated to take any legal action
under this agreement that might, in its judgment, involve any
expense or liability, unless it has been furnished with
reasonable indemnity;
(d) may rely on, and shall be protected in acting
upon, any certificate, instrument, opinion, notice, letter,
telegram, or other document, or any security, delivered to the
Disbursing Agent, and in good faith believed by the Disbursing
Agent to be genuine and to have been signed by the proper party
or parties;
(e) may rely on and shall be protected in acting
upon the written or oral instructions of CEI, SNFC, any of their
counsel, including, but not limited to, Don B. Long, Jr., and
Randall Mackey, respectively, and authorized employees or other
representatives that one or more of the foregoing corporations
identify in a writing delivered to the Disbursing Agent that
bears the signature of the employee or representative on whom one
or more of the corporations authorize the Disbursing Agent to
rely;
(f) may consult counsel satisfactory to the
Disbursing Agent (including counsel for CEI or SNFC) and rely on
the opinion of such counsel as full and complete authorization
and protection in respect of any action taken, suffered, or
omitted by the Disbursing Agent in good faith and in accordance
with the opinion of such counsel;
(g) has no knowledge of the Acquisition Agreement
or the transaction taking place between SNFC and CEI beyond the
facts specifically enumerated in this Escrow Agreement; and
(h) has the right, in its discretion, to resign as
escrow agent hereunder at any time, by giving at least thirty
(30) days' prior written notice of such resignation to SNFC, each
Stockholder, each Converting Debentureholder, and each holder of
an outstanding Debenture. In such event SNFC will promptly
select another bank with offices in the state of Florida or
Alabama with capital, surplus and undivided profits of not less
than One Hundred Million Dollars ($100,000,000), which will be
appointed as successor Disbursing Agent, and will enter into an
agreement with such other bank in substantially the form of this
Escrow Agreement. Resignation by the Disbursing Agent shall
relieve the Disbursing Agent of any responsibility or duty
thereafter arising hereunder, but shall not relieve the
Disbursing Agent of responsibility to account to SNFC, CEI and
the Certificateholders for funds received by the Disbursing Agent
from SNFC and CEI prior to the effective date of such
resignation. If a substitute for the Disbursing Agent hereunder
shall not have been selected, as aforesaid, the Disbursing Agent
shall be entitled to petition any court of competent jurisdiction
for the appointment of a substitute for it hereunder or, in the
alternative, it may transfer and deliver the funds deposited in
the Disbursing Account to or upon the order of such court. The
Disbursing Agent shall be discharged from all further duties
hereunder upon acceptance by the substitute of its duties
hereunder or upon transfer and delivery of the said funds in said
Disbursing Account to or upon the order of any court and shall
thereupon refund to SNFC, pro rata, any compensation paid in
advance to the Disbursing Agent by SNFC.
Section 14. Indemnification. SNFC shall indemnify the Disbursing
Agent and hold it harmless against any loss, liability, or
expense incurred by the Disbursing Agent in good faith and
without negligence or misconduct on its part, arising out of or
in connection with the administration of its duties under this
agreement, including the costs and expenses of defending itself
against any claim or liability incurred in connection with the
performance of its duties under this agreement. SNFC covenants
and agrees to indemnify and hold the Disbursing Agent harmless
against any loss, liability, cost, or expense, including
reasonable attorneys' fees (incurred without negligence,
misconduct or bad faith on the Disbursing Agent's part) arising
out of or in connection with any act, omission, delay, or refusal
made by the Disbursing Agent in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request,
notice, instruction, or other instrument or document believed by
the Disbursing Agent to be valid, genuine and sufficient and in
accepting any letter of transmittal or effecting any payment
believed by the Disbursing Agent in good faith to be authorized,
and in delaying or refusing in good faith to accept any letter of
transmittal or effect any payment.
Section 15. Notices. To be effective, a notice to a party
permitted or required under this agreement must be in writing,
and shall be considered given when personally delivered (which
may be by nationally recognized courier service) or, if mailed,
on the third day after the notice is deposited in a United States
Postal Service office or letter box, postage pre-paid, to be sent
by registered or certified mail, and addressed to the intended
recipient at the address specified below or to a different
address specified in a writing delivered to the sender by the
intended recipient:
If to CEI:
Consolidare Enterprises, Inc.
755 Rinehart Road
Lake Mary, Florida 32746
Attention: Mr. George Pihakis
With a copy to:
Johnston Barton Proctor & Powell LLP
2900 AmSouth/Harbert Plaza
Birmingham, Alabama 35203
Attention: Don B. Long, Jr., Esq.
If to SNFC:
Security National Financial Corporation
5300 South 360 West
Salt Lake City, Utah 84123
Attention: Scott M. Quist
With a copy to:
Mackey Price & Williams
170 South Main Street
Suite 900
Salt Lake City, Utah 84101-1655
Attention: Randall Mackey, Esq.
If to the Disbursing Agent:
SunTrust Bank, Central Florida, N.A.
Corporate Trust Administration
225 East Robinson Street
Suite 250
Orlando, FL 32801
Attention: Geraldine P. Kail
If to a Certificateholder:
To such Certificateholder's address as set forth on
the list delivered to the Disbursing Agent pursuant to Section
2(a) of this Agreement.
Section 16. Miscellaneous. This agreement shall be construed and
enforced in accordance with the laws of Florida. This agreement
is for the benefit of, and the obligations and duties created by
this agreement are binding upon, the parties and their
successors, legal representatives, and permitted assignees. A
party shall not assign its rights or delegate its duties under
this agreement without the prior written consent of every other
party, which consent may be arbitrarily withheld. This agreement
may be executed in any number of counterparts, each of which
shall constitute an original and shall be effective when one or
more counterparts have been executed by all the parties and
received by the Disbursing Agent. The headings preceding the
text of the paragraphs of this agreement are intended for
convenience of reference only and do not constitute a part of
this agreement. This agreement contains the final and complete
expression of the understanding of the parties with respect to
the transactions contemplated by this agreement and shall not be
amended or modified except by a written instrument signed by all
parties.
IN WITNESS WHEREOF, this Agreement has been executed by the
parties, as of the date first above written:
SECURITY NATIONAL FINANCIAL CORPORATION
By:
Its:
CONSOLIDARE ENTERPRISES, INC.
By:
Its: President
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Its: