snfc8k121808ex10-3.htm


    
      

      

    

     

    ESCROW
AGREEMENT

    


    


    THIS  ESCROW
AGREEMENT (the "Escrow Agreement") is made and entered into this 18th day of
December, 2008, by and among SECURITY NATIONAL LIFE INSURANCE COMPANY, a Utah
corporation ("Security National"), SOUTHERN SECURITY LIFE INSURANCE COMPANY,
INC., a Mississippi corporation ("Southern Security"), the SHAREHOLDERS OF
SOUTHERN SECURITY LIFE INSURANCE COMPANY, INC.  that have executed the
Agreement by Shareholders of Southern Security Life Insurance
Company  to Sell Shares in Stock Purchase Transaction (the
"Shareholders"), and MACKEY PRICE THOMPSON & OSTLER, a Utah professional
corporation (the "Escrow Agent") (each of the foregoing parties is referred to
singly, as  a "Party" and collectively, as the
"Parties").  Capitalized terms appearing in the Escrow Agreement but
not otherwise defined herein shall have the same meanings assigned to them in
the Stock Purchase Agreement.

    


    WITNESSETH:

    


    WHEREAS,
on August 13, 2008, Security National, Southern Security, and the Shareholders
entered into a stock purchase agreement (the "Stock Purchase Agreement") in
which the Shareholders agreed to sell to Security National, and Security
National agreed to purchase from the Shareholders, all of the issued and
outstanding shares of stock of Southern Security in consideration for purchase
consideration payable to the Shareholders, as defined in Section 1.2 of the
Stock Purchase Agreement, on a pro rata basis in an amount to include the
following:  (i) the Capital and Surplus of Southern Security as of the
date that Security National assumed administrative control over Southern
Security, which was on September 1, 2008, (ii) plus the interest maintenance
reserve and the asset valuation reserve of Southern Security, as if the
administrative control date of September 1, 2008, (iii)  plus an
allowance not to exceed $100,000 for actual losses experienced by Southern
Security in the second quarter ended June 30, 2008, which allowance shall not
exceed $100,000 even if the actual losses experienced by Southern Security in
the second quarter ended June 30, 2008, or any subsequent quarter are in excess
of $100,000, (iv) less certain adjustments (the "Purchase Consideration");
and

    


    WHEREAS,
Security National, Southern Security and the Shareholders desire to establish
this escrow for the purpose of holding the funds to be deposited into an
interest bearing escrow account (the "Escrow Account") in accordance with
amended terms of the Stock Purchase Agreement and distributing such funds
pursuant to amended terms of such agreement; and

    


    WHEREAS,
Escrow Agent is willing to receive the funds contemplated by the amended terms
of the Stock Purchase Agreement and to hold and distribute the same in
accordance with the amended terms of such agreement; and

    


    WHEREAS,
in Section 1.2(c) of the Stock Purchase Agreement, the Shareholders agree at the
closing of the transaction, as defined in Section 2.1 of the Stock Purchase
Agreement (the “Closing”) to deposit $175,000 (the “Deposit Amount”) of the
Purchase Consideration into the Escrow Account with the Escrow Agent, which
amount is to be used to pay the amount of any adjustments in the Stock Purchase
Agreement, including any adjustments in Sections 1.2(c), (d) and (e) thereunder
(the "Adjustments"); and

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

    WHEREAS,
in Section 1.2(d) of the Stock Purchase Agreement, the Shareholders further
agree at Closing to deposit $537,000 of the Purchase Consideration (the "Real
Estate Deposit Amount") into the interest bearing Escrow Account, which amount
represents approximately 50% of the total outstanding balances on the promissory
notes that Southern Security has entered into with Ray-Nowell Funeral Home, Inc.
and Wade Nowell Funeral Homes, Inc. (the “Notes”), which Notes are secured by
funeral home properties in Senatobia, Mississippi and Collins, Mississippi,
respectively, of which the Shareholders agree to grant to Security National a
security interest in the Real Estate Deposit Amount to secure payment of their
Notes.  Beginning on September 1, 2009, and continuing on the
same date of each year thereafter, the Escrow Agent is to release to the
Shareholders on a pro rata basis, as more fully described in Section 1.2(d) of
the Stock Purchase Agreement,  certain amounts equal to the combined
principal reduction of the Notes that has occurred during the preceding August 1
through July 31 period, until such time as the Real Estate Deposit Amount,
including any accrued interest thereon, has been paid to the Shareholders;
and

    


    WHEREAS,
the Escrow Agent agrees to make payments from the Deposit Amount and the Real
Estate Deposit Amount to the Shareholders on a pro rata basis pursuant to the
amended terms and conditions of Section 1.2(c) and 1.2(d) of the Stock Purchase
Agreement; and

    


    WHEREAS,
Security National, Southern Security and each of the Shareholders desire to
modify the terms of the Stock Purchase Agreement by entering into an escrow
agreement containing terms and conditions that amend certain terms and
conditions of the Stock Purchase Agreement, and to the extent such amended terms
and conditions of the escrow agreement are inconsistent with those in the Stock
Purchase Agreement, such amended terms and conditions shall be controlling and
shall constitute an amendment to the Stock Purchase Agreement;

    


    NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:

    


    1.           Delivery of Documents into
Escrow.  Security National and Southern Security herewith
deliver the following documents to Escrow Agent to be held and disposed of by
Escrow Agent strictly in accordance with the terms of this Escrow
Agreement:

    


    (a)           A
copy of the Stock Purchase Agreement and any amendments thereto.

    


    (b)           A
certified shareholders list of Southern Security dated the Closing Date (the
"Certified Shareholders List") with the names and addresses of each of the
Shareholders and the number of shares held by each of the shareholders as of the
Closing Date.

    


    (c)           A
copy of a statement of the Capital and Surplus of Southern Security as of
September 1, 2008.

    


    (d)           A
copy of the Note that Southern Security entered into.

     

    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

     

    2.           Delivery of Cash into
Escrow.  The Shareholders herewith deliver cash in the form of
immediately available U.S. Dollars by bank wire transfer into the Escrow
Agreement in the amount of Four Hundred Forty-three Thousand Five Hundred
Dollars ($443,500) to U.S. Bank, N.A., 170 South Main Street, 6th Floor,
Salt Lake City, Utah 84101; Attn:  David H. Green, Vice
President.

    


    3.           Investment of Escrow
Funds.  Any funds held in the Escrow Account shall be invested
by the Escrow Agent, in the Escrow Agent's discretion in accordance with terms
and conditions set forth in Section 5 below, in an interest bearing account held
by the Escrow Agent.

    


    4.           Distribution of Escrow
Funds.

    


    (a)          The
Shareholders agree at closing to deposit $175,000 of the Purchase Consideration
into the interest bearing Escrow Account as the Deposit Amount.  This
amount shall be held for a period of six months from the Closing Date (the
“Holdback Period”) and used to pay the amount of any adjustments in the Stock
Purchase Agreement, including any adjustments described in Sections 1.2(c), (d)
and (e) thereunder.  The amount of the adjustments shall be determined
during the Holdback Period.  At the end of the Holdback Period,
Security National shall provide written notice of the amount and a description
of the adjustments to be charged against the Deposit Amount to the Shareholders
and the Escrow Agent at the addresses specified in Section 7
below.  Not less than ten (10) days after the notice has been provided
to the Shareholders, the Escrow Agent agrees to transfer the remaining amounts
of the Deposit Amount, following the payment of any such adjustments, into the
Real Estate Deposit Amount to be held and distributed in accordance with the
terms of Section 4(b) below;

    


    (b)          The
Shareholders further agree at Closing to deposit $268,500 of the Purchase
Consideration into the interest bearing Escrow Account as the Real Estate
Deposit Amount.  This amount represents approximately 50% of the total
outstanding balance on the promissory note that Southern Security has entered
into with Wade Nowell Funeral Homes, Inc. (the “Note”), which Note is secured by
a funeral home property in Collins, Mississippi.  The Real Estate
Deposit Amount shall be increased by the amount of funds transferred from the
Deposit Amount (following payment of any adjustments) after the Holdback
Period.  The Shareholders agree to grant to Security National a
security interest in the Real Estate Deposit Amount to secure payment of the
Note.  Except as set forth below, beginning on September 1, 2009, and
continuing on the same date of each year thereafter, the Escrow Agent shall
release to the Shareholders on a pro rata basis an amount equal to the principal
reduction of said Note that has occurred during the preceding August 1 through
July 31 period, until such time as the Real Estate Deposit Amount (including any
funds transferred from the Deposit Amount), and any accrued interest thereon,
have been paid to the Shareholders.  Such payments shall be made
according to the requirements of Section 4(d) below.  However, the
Escrow Agreement shall make no payments to the Shareholders from the Real Estate
Deposit Amount if the Note is in default.  In the event there is a
default in the payment of the Note, Security National shall have the right to
receive payment from the Real Estate Deposit Amount for the amount of such
default or to foreclose on the Note pursuant to the terms thereunder and shall
be entitled to receive payment from the Real Estate Deposit Amount in an amount
equal to the full amount of any losses and expenses incurred by Security
National as a result of such default and the enforcement of its rights pursuant
thereto.  The Shareholders and Security National agree that the
Shareholders have the right, but not the obligation, to refinance the existing
debt on the Note;

    


    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

     

    (c)          Security
National agrees to guarantee the payment of interest at the rate of four percent
(4%) per annum on the funds transferred from the Deposit Amount to the Real
Estate Deposit Amount after the Holdback Period.  The guaranteed four
percent (4%) interest shall include the interest earned from the interest
bearing Escrow Account on the funds transferred from the Deposit
Amount.  As the annual payments are made to the Shareholders pursuant
to Section 4(b) above in the amount equal to the principal reduction of the Note
that has accrued during the preceding August 1 through July 31 period, the
amounts paid to the Shareholders for such principal reduction shall be
apportioned on a pro rata basis to the amount of funds transferred from the
Deposit Amount after the Holdback Period and the amount of funds in the Real
Estate Deposit Amount prior to the receipt of such funds from the Deposit
Amount.  Thus, the funds transferred from the Deposit Amount after the
Holdback Period to the Real Estate Deposit Amount shall earn interest at the
rate of four percent (4%) per annum until such funds are distributed to the
Shareholders by means of annual principal reduction payments;

    


    (d)          Upon
the completion and satisfaction of the required distributions set forth in
Sections 4(b) above, the Escrow Agent shall distribute the remaining funds in
the Escrow Account to the Shareholders on a pro rata basis to the number of
shares of Southern Security common stock held by the Shareholders on the Closing
Date, as set forth on the Certified Shareholders List.  Such payments
to the Shareholders shall be in the form of cashier's checks payable to the
order of each of the Shareholders as named on the Certified Shareholders List
and delivered to the address specified in writing by each of the
Shareholders.

    


    5.           Responsibility of the Escrow
Agent.  The Escrow Agent accepts the escrow arrangements set
forth in this Escrow Agreement upon the terms and conditions hereof and
undertakes to act solely as depository for the escrow funds, with no obligations
to Security National, Southern Security, or the Shareholders except as
specifically set forth herein.  The Parties hereto agree that the
following terms and conditions shall govern and control with respect to the
rights, duties, liabilities and immunities of the Escrow Agent
hereunder.

    


    (a)          Until
escrowed payments are distributed as provided herein, the Escrow Agent shall
maintain such funds in an interest bearing account, as provided
herein.

    


    (b)          The
duties and obligations of the Escrow Agent shall be determined solely by the
express provisions of this Escrow Agreement, and no implied covenants, duties or
obligations shall be read into this Escrow Agreement against the Escrow Agent,
nor shall it have, or be deemed to have, any duties or responsibilities under
the provisions of any other agreements between the other Parties
hereto.

    


    (c)          The
Escrow Agent shall not be liable for any error of judgment, or any actions
taken, or omitted by it in good faith, or mistake of fact or law, or for
anything it may do or refrain from doing in connection therewith, except its own
gross negligence or willful misconduct.

    


    
      
        
           


        

        
          4

          
            

          

        

        
           


        

      

    

     

    (d)          The
Escrow Agent may rely and shall be protected from acting in good faith in
reliance upon resolution, direction, certificate, statement, approval, notice,
court order, or other document, not only unto its due execution and the validity
and effectiveness of its provisions, but also as to the truth of any information
therein contained, which it in good faith believes to be genuine and what
purports to be.

    


    (e)          The
Escrow Agent may consult with counsel or other experts of its own choice and any
opinion of its own choice and any opinion of counsel or written opinion of such
other experts shall be full and complete authorization and protection with
respect to any action taken or omitted by the Escrow Agent hereunder in good
faith and in accordance with such opinion of counsel or opinion of such other
experts within the area of their respective expertise.

    


    (f)           The
Escrow Agent may execute any of its powers or responsibilities hereunder and
exercise any rights hereunder either directly or by or through its agent or
attorneys.

    


    (g)          The
Escrow Agent shall not be responsible for and shall not be under a duty to
examine into or pass upon, the validity, binding effect, execution or
sufficiency of this Escrow Agreement or of any agreement, amendment or
supplement hereto nor shall the Escrow Agent be accountable for the source of
the escrow funds.

    


    (h)          Except
as otherwise specifically provided herein, the Escrow Agent may deal with
Security National, its parent company or its affiliates, in the same manner and
to the same extent and with like effect as if it were not the Escrow Agent
hereunder.

    


    (i)           If
any controversy or dispute arises between the Parties hereto or with any third
party with respect to the subject matter of the escrow described herein, the
Escrow Agent shall not be required to determine the same or take any action, but
may await the settlement of any such controversy or dispute by final appropriate
legal proceedings or otherwise as the Escrow Agent may require, and in such
event the Escrow Agent shall not be liable for interest or damage, except that
the Escrow Agent shall not deliver the escrow funds in any manner other than in
accordance with Section 4 hereof.  In addition, the Escrow Agent shall
have the right to commence such interpleader or other legal proceedings or
actions, or take or withhold any other actions, as are reasonably necessary or
appropriate pending resolution of such controversy or dispute.  The
Escrow Agent shall be entitled to retain counsel to represent it in any
controversy or dispute relating to this Escrow Agreement.

    


    6.           Termination.  This
Escrow Agreement shall terminate upon distribution of all of the funds in the
Escrow Account pursuant to Section 4 hereof.

    


    7.           Manner of Notice.  All
notices required by this Escrow Agreement or which one party desires to serve on
another party, shall be in writing and shall be deemed given or made when
delivered to such party personally, or three days after mailing to such party by
bonded courier, by registered or certified mail, postage prepaid, return receipt
requested, or by first-class mail, postage prepaid, to the addresses specified
below:

    


    
      
        
           


        

        
          5

          
            

          

        

        
           


        

      

    

     

    If to Security
National, to:

    


    
      	 
      	 
      	 
      	
              Security
      National Life Insurance Company 

            
	 
      	 
      	 
      	
              5300
      South 360 West, Suite 250

            
	 
      	 
      	 
      	
              Salt
      Lake City, Utah  84123

            
	 
      	 
      	 
      	
              Attn:  Scott
      M. Quist, President

            
	 
      	 
      	 
      	
              Facsimile
      No. (801) 264-1060

            
	 
      	 
      	 
      	
              Telephone
      No.  (801) 265-9882

            


    

    


    or to
such other address or addresses as Security National shall hereinafter designate
by notice to the other parties as herein provided; and

    


    If to Southern Security,
to:

    


    
      	 
      	 
      	 
      	
              Southern
      Security Life Insurance Company, Inc.

            
	 
      	 
      	 
      	
              211
      Ball Drive

            
	 
      	 
      	 
      	
              P.O.
      Box 924

            
	 
      	 
      	 
      	
              Louisville,
      Mississippi 39339

            
	 
      	 
      	 
      	
              Attn:  Russell
      C. Nowell, President

            
	 
      	 
      	 
      	
              Facsimile
      No.:  (622) 779-4155

            
	 
      	 
      	 
      	
              Telephone
      No.:  (622) 779-4113

            


    

    


    or to
such other address or addresses as Southern Security shall hereinafter designate
by notice to the other parties as herein provided;

    


    If to Shareholders, to:

    


    
      	 
      	 
      	 
      	
              Shareholders
      of Southern Security Life Insurance Company

            
	 
      	 
      	 
      	
              211
      Ball Drive

            
	 
      	 
      	 
      	
              P.O.
      Box 924

            
	 
      	 
      	 
      	
              Louisville,
      Mississippi 39339

            
	 
      	 
      	 
      	
              Facsimile
      No.:  (622) 779-4155

            
	 
      	 
      	 
      	
              Telephone
      No.:  (622) 779-4113

            


    

    


    or to
such other address or addresses as the Shareholders shall hereinafter designate
by notice to the other parties as herein provided;

    


    
      
        
           


        

        
          6

          
            

          

        

        
           


        

      

    

     

    With a copy to:

    


    
      	 
      	 
      	 
      	
              Julie
      M. McPeak, Esq.

            
	 
      	 
      	 
      	
              Burr
      & Forman, LLP

            
	 
      	 
      	 
      	
              700
      Two American Center

            
	 
      	 
      	 
      	
              3102
      West End Avenue

            
	 
      	 
      	 
      	
              Nashville,
      Tennessee 37207

            
	 
      	 
      	 
      	
              Facsimile
      No.:  (615) 724-3290

            
	 
      	 
      	 
      	
              Telephone
      No.:  (615) 724-3200

            


    

    


    If to Escrow Agent, to:

    


    
      	 
      	 
      	 
      	
              Mackey
      Price Thompson & Ostler

            
	 
      	 
      	 
      	
              57
      West 200 South, Suite 350

            
	 
      	 
      	 
      	
              Salt
      Lake City, Utah 84101

            
	 
      	 
      	 
      	
              Attn:  Randall
      A. Mackey, Esq.

            
	 
      	 
      	 
      	
              Facsimile
      No.:  (801) 575-5006

            
	 
      	 
      	 
      	
              Telephone
      No.:  (801) 575-5000

            


    

    


    or to
such other address or addresses as the Escrow Agent shall hereinafter designate
by notice to the other parties as herein provided.

    


    8.           Governing Law.  This
Escrow Agreement shall be enforced and construed in accordance with the laws of
the State of Mississippi.

    


    9.           Counterparts.  This
Escrow Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.

    


    10.         Time.  Time
is of the essence of this Escrow Agreement.

    


    11.         Headings.  The
subject headings of the paragraphs contained in this Escrow Agreement are
included for purposes of convenience only and shall not control or affect the
meaning, construction or interpretation of any of the provisions of this Escrow
Agreement.

    


    12.          Assignment of
Interest.  Each Shareholder has the right to
assign his respective share of escrowed funds.  Any such
assignment shall be completed by a written assignment containing the
notarized signature of the Shareholder.  The assignment shall contain
the name and address of the assignee. A duplicate original of the
Assignment shall be delivered to the Escrow Agent by certified mail, return
receipt requested.  The Escrow Agent shall have no liability for
delivering the escrowed funds to an assignee as directed by a
Shareholder.

    


    
      
        
           


        

        
          7

          
            

          

        

        
           


        

      

    

    


    IN WITNESS WHEREOF, the parties hereto
have executed this Escrow Agreement as of the day and year first above
written.

    


    
      	 
      	
              SECURITY
      NATIONAL LIFE INSURANCE COMPANY

            
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	
              By:

            	
              /s/ Scott M. Quist

            	 
	 
      	 
      	
              Scott
      M. Quist, President

            	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	
              SOUTHERN
      SECURITY LIFE INSURANCE COMPANY, INC.

            
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	
              By:

            	
              /s/ Russell C. Nowell

            	 
	 
      	 
      	
              Its:
      President

            	 
	 
      	 
      	 
      	 
	 
      	
              THE
      SHAREHOLDERS:

            
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	
               /s/ Russell C. Nowell

            	 
	 
      	
              Russell
      C. Nowell

            	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	
               /s/ Janet Nowell
    Massey

            	 
	 
      	
              Janet
      Nowell Massey

            	 
	 
      	 
      	 
      	 
	 
      	
              Estate
      of Genece Nowell

            	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	
               /s/ Michael Pierce

            	 
	 
      	
              Michael
      Pierce, Temporary Administrator

            	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
	 
      	
               /s/ Harold B. Nowell,
    Sr.

            	 
	 
      	
              Harold
      B. Nowell, Sr.

            	 


    

    


    
      
        
           


        

        
          8

          
            

          

        

        
           


        

      

    

     

    
      	 
      	
              H&R
      II, L.P., as Shareholder

            
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	
              By:
       H&R I, Inc. as Managing General Partner of

            
	 
      	 
      	 
      	
              H&R
      II, L.P.

            
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	
              By:

            	
              /s/ Harold B. Nowell, III

            	 
	 
      	 
      	 
      	 
      	
              Harold
      B. Nowell, III, Individually,

            	 
	 
      	 
      	 
      	 
      	
              President,
      and as Shareholder of H&R I, Inc.

            	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	
              By:

            	
              /s/ Russell C. Nowell

            	 
	 
      	 
      	 
      	 
      	
              Russell
      C. Nowell, Individually, and as Shareholder

            	 
	 
      	 
      	 
      	 
      	
              of
      H&R I, Inc.

            	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	
              By: 
      H. Bernard Nowell, Jr. Irrevocable Trust, as

            
	 
      	 
      	 
      	
              Limited
      Partner of H&R II, L.P.

            
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	
              By:

            	
              /s/ Harold B. Nowell, III

            	 
	 
      	 
      	 
      	 
      	
              Harold
      B. Nowell, III, as Trustee

            	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	
              THE
      ESCROW AGENT:

            
	 
      	 
      	 
      	 
      	 
      	 
	 
      	
              MACKEY
      PRICE THOMPSON & OSTLER

            
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	 
      	 
      	 
      	 
      	 
	 
      	
              By:
      /s/ Randall A.
      Mackey                                       
      

            	 
	 
      	
                    Randall
      A. Mackey, President

            	 


    

     

    
 

    
      9