Exhibit 1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is entered into as of
March 29, 2007 to be effective as of the Closing Date between Truck Underwriters
Association ("TUA"), a California corporation, Fire Underwriters Association, a
California corporation ("FUA" and, with TUA, each a "Seller" and, collectively,
"Sellers"), Farmers Group, Inc. ("FGI"), a Nevada corporation, and Farmers
Insurance Exchange ("Farmers Exchange"), a California inter-insurance exchange,
Fire Insurance Exchange ("Fire Exchange"), a California inter-insurance
exchange, and Truck Insurance Exchange ("Truck Exchange"), a California
inter-insurance exchange, and Mid-Century Insurance Company, a California
insurance company ("Mid-Century" and, with Farmers Exchange, Fire Exchange and
Truck Exchange, each, a "Buyer" and, collectively, "Buyers").
RECITALS
WHEREAS, FGI, the direct parent of each Seller, has entered into that
certain Agreement and Plan of Merger (the "Merger Agreement"), dated as of March
1, 2007, by and among Bristol West Holdings, Inc., a Delaware corporation (the
"Company"), FGI and BWH Acquisition Company, a Delaware corporation and a
wholly-owned subsidiary of Sellers ("Merger Sub"), pursuant to which Merger Sub
will be merged with and into the Company, with the Company as the surviving
corporation (the "Merger");
WHEREAS, prior to the consummation of the Merger, FGI will have contributed
fifty percent (50%) of the issued and outstanding stock of Merger Sub to TUA and
fifty percent (50%) of the issued and outstanding stock of Merger Sub to FUA;
WHEREAS, following the consummation of the Merger and prior to the Closing
(as defined herein), TUA and FUA will each contribute $25 million to the Company
and will each loan $25 million to the Company and the Company will distribute
the assets and assign the employees as set forth on Schedule A hereto to FGI
(the "Interim Transactions"); and
WHEREAS, following the consummation of the Interim Transactions, Sellers
desire to sell to Buyers, and each of Buyers desires to buy from Sellers, on the
terms and conditions herein set forth, all of the issued and outstanding stock
of the Company and to assume from Sellers certain liabilities of the Company.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, and covenants contained herein and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. PURCHASE AND SALE; CONSIDERATION; CLOSING
(a) Purchase and Sale.
Upon the terms and subject to the conditions set forth in this
Agreement (including, without limitation, payment of the Purchase Price as
defined herein), at the Closing, each of Buyers agrees to purchase from each of
Sellers, and each of Sellers hereby agrees to sell, transfer and assign to each
of Buyers, free of any and all Encumbrances (as defined below), all of the
issued and outstanding stock of the Company (the "Transferred Shares") in the
proportions set forth on Schedule 1(a) hereto.
(b) Consideration.
The total consideration payable by Buyers to Sellers shall be
$370,000,000 (the "Purchase Price") with the consideration payable by each Buyer
for the Transferred Shares to be purchased by such Buyer from each Seller as set
forth on Schedule 1(b) hereto. The Purchase Price shall be payable at the
Closing by wire transfer of immediately available funds pursuant to wire
instructions provided by Sellers not later than two (2) days prior to the
Closing Date.
(c) Repayment of Certain Debt Obligations.
Additionally, each Buyer agrees to cause the Company to repay the
obligations set forth on Schedule 1(c) hereto with respect to such Buyer (the
"Debt Obligations") at the Closing by wire transfer of immediately available
funds pursuant to wire instructions provided by Sellers not later than two (2)
days prior to the Closing Date.
(d) The Closing.
The closing (the "Closing") will take place at the offices of Xxxxxxx
Xxxx & Xxxxxxxxx, LLP, commencing at 10:00 a.m. (local time) on the date not
more than two (2) business days after each of the conditions set forth in
Section 5 hereof have been satisfied or waived by the party entitled to the
benefit thereof (the "Closing Date") or at such other time as the parties may
mutually agree, it being agreed that the parties will use their reasonable best
efforts to hold the Closing on the date that the Merger is consummated but
following the consummation of the Interim Transactions. If the Merger is
consummated prior to the date on which the conditions set forth in Section 5
hereof have been satisfied or waived, then each Buyer shall pay to the Sellers
on the Closing Date interest on the cash portion of the Purchase Price for which
such Buyer is liable in accordance with Schedule 1(b) hereto at a rate of 5% per
annum accruing from the date the Merger is consummated through the Closing Date.
(e) Closing Obligations.
In addition to any other documents to be delivered under other
provisions of this Agreement, at the Closing:
(i) Sellers will deliver to Buyers:
(A) one or more stock certificates representing the Transferred
Shares, together with stock transfer powers duly executed in blank, and one
or more stock certificates representing all the issued and outstanding
shares of the Subsidiaries (as defined herein); and
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(B) such other instruments of transfer and conveyance as may
reasonably be requested by Buyers to effectuate the sale, assignment and
transfer of the Transferred Shares, each in form and substance satisfactory
to Buyers and their legal counsel and executed by Sellers.
(ii) Buyers will deliver to Sellers:
(A) the Purchase Price in immediately available funds; and
(B) such other instruments as may reasonably be requested by
Sellers to effectuate the sale of the Transferred Shares, each in form and
substance satisfactory to Sellers and their legal counsel and executed by
Buyers.
2. SELLERS' REPRESENTATIONS AND WARRANTIES
Except as disclosed in the disclosure schedule provided by Sellers to
Buyers on the Closing Date and attached hereto as Schedule 2 (the "Sellers'
Disclosure Schedule"), FGI and each Seller hereby represents and warrants as
follows:
(a) Organization and Good Standing of Sellers.
Each Seller is a California corporation, duly organized, validly
existing, and in good standing under the laws of the State of California, with
full power and authority to conduct its business as it is now being conducted
and to own or use the properties and assets that it purports to own or use.
(b) Enforceability; Authority; No Conflict; Third Party Approvals with
Respect to Sellers.
(i) This Agreement constitutes the legal, valid, and binding
obligation of FGI and each Seller, enforceable against such persons in
accordance with its terms except as such enforceability may be limited by
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors' rights, or (ii)
general principles of equity relating to the availability of equitable
remedies (regardless of whether such agreement or instrument is sought to
be enforced in a proceeding at law or in equity). Upon the execution and
delivery by a Seller of the agreements contemplated hereby to be executed
by such Seller (collectively, the "Sellers' Documents"), each of the
Sellers' Documents will constitute the legal, valid, and binding obligation
of such Sellers, enforceable against such Sellers in accordance with its
terms except, in each case, as such enforceability may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws affecting creditors' rights, or (ii) general
principles of equity relating to the availability of equitable remedies
(regardless of whether such agreement or instrument is sought to be
enforced in a proceeding at law or in equity). The execution and delivery
by FGI and Sellers of this Agreement, the Sellers' Documents and the
consummation of the transactions contemplated by the Merger Agreement and
this Agreement has been duly authorized by all necessary action of FGI and
the Sellers.
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(ii) Neither the execution and delivery of this Agreement or the
Sellers' Documents nor the consummation or performance of any of the
transactions contemplated by the Merger Agreement or this Agreement will,
directly or indirectly (with or without notice or lapse of time): (a)
breach (i) any provision of any of the articles of incorporation or bylaws
of FGI or any Seller or (ii) any resolution adopted by the board of
directors of FGI or any Seller; (b) breach in any material respect any
statute, law, ordinance, executive order, rule, or regulation (including a
regulation that has been formally promulgated in a rule making proceeding
but, pending final adoption, is in proposed or temporary form having force
of law); guideline or notice having force of law; or approval, permit,
license, franchise, judgment, order, decree, injunction, or writ of any
federal, state, foreign, tribal, local, or municipal governmental body; and
any governmental, regulatory, or administrative agency, commission, body,
agency, instrumentality, or other authority exercising or entitled to
exercise any executive, judicial, legislative, administrative, regulatory,
or taxing authority or power, including any court or other tribunal (each,
a "Governmental Authority") applicable to a specified individual,
corporation, partnership, limited liability company, other business
organization of any kind, association, trust, or governmental entity,
agency, or instrumentality (each, a "Person") or specified property, as in
effect from time to time ("Applicable Law") applicable to FGI or any Seller
or give any Governmental Authority or other Person the right to challenge
FGI or any Seller's participation in any of the transactions contemplated
by the Merger Agreement or this Agreement or to exercise any remedy or
obtain any relief under any Applicable Law as a result of FGI's or such
Seller's participation therein; or (c) result in the imposition or creation
of any lien, security interest, mortgage, pledge, hypothecation,
assignment, easement, right-of-way, servitude, equitable interest, charge,
restrictive covenant, or other restriction, encumbrance or matter affecting
title to the involved property (each, an "Encumbrance") upon or with
respect to any of the Transferred Shares.
(c) Sellers' Title.
Upon consummation of the Merger, the Sellers will have, and
upon consummation of the transactions contemplated in this Agreement, the
applicable Buyers will have, good and marketable title to the Transferred
Shares, free and clear of any Encumbrances other than any Encumbrances created
solely by such Buyers.
(d) Capital Structure.
The authorized capital stock of the Company consists of 200,000,000
shares of common stock, $0.01 par value, of which 29,479,864 shares were issued
and outstanding as of the close of business on March 1, 2007, and 15,000,000
shares of preferred stock, none of which were outstanding as of March 1, 2007.
Following the consummation of the Merger, the certificate of incorporation of
the Company will be amended so that the authorized capital stock of the Company
will consist of 1,000 shares of common stock, $0.01 par value. All of the
outstanding shares of the capital stock of the Company have been duly authorized
and validly issued, are fully paid and non-assessable. Except as set forth in
Section 2(d) of the Sellers' Disclosure Schedule, there are no preemptive or
other outstanding rights, options, warrants,
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conversion rights, stock appreciation rights, redemption rights, repurchase
rights, agreements, arrangements, calls, commitments or rights of any kind that
obligate the Company or any of its Subsidiaries to issue or sell any shares of
capital stock or other equity securities of the Company or any of its
Subsidiaries or any securities or obligations convertible or exchangeable into
or exercisable for, or giving any Person a right to subscribe for or acquire,
any equity securities of the Company or any of its Subsidiaries, and no
securities or obligations evidencing such rights are authorized, issued or
outstanding.
(e) Subsidiaries.
Section 2(e) of the Sellers' Disclosure Schedule sets forth a complete
and correct list of all of the Company's subsidiaries ("Subsidiaries"). Except
as set forth in Schedule 2(e) of the Sellers' Disclosure Schedule, each of the
outstanding shares of capital stock or other equity securities of each of the
Company's Subsidiaries is duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company or by a direct or indirect wholly
owned subsidiary of the Company, free and clear of Encumbrances, other than
Encumbrances that would not, individually or in the aggregate, have or
reasonably be expected to have a Company Material Adverse Effect, as such term
is defined in the Merger Agreement.
(f) Merger Agreement Representations.
To the knowledge of FGI and Sellers, no representation or warranty
made to FGI by the Company in the Merger Agreement is false or incorrect, such
that the condition set forth in Section 7.2(a) of the Merger Agreement could not
be satisfied.
3. BUYERS' REPRESENTATIONS AND WARRANTIES
Except as disclosed in the disclosure schedule provided by Buyers to
Sellers on the Closing Date and attached hereto as Schedule 3, each Buyer hereby
represents and warrants as follows:
(a) Organization and Good Standing of Buyers.
Each of Farmers Exchange, Fire Exchange and Truck Exchange is a
reciprocal insurance exchange, duly organized, validly existing, and in good
standing under the laws of the State of California, with full power and
authority to conduct its business as it is now being conducted and to own or use
the properties and assets that it purports to own or use. Mid-Century is an
insurance company, duly organized, validly existing, and in good standing under
the laws of the State of California, with full power and authority to conduct
its business as it is now being conducted and to own or use the properties and
assets that it purports to own or use.
(b) Enforceability; Authority; No Conflict; Third Party Approvals with
Respect to Buyers.
(i) This Agreement constitutes the legal, valid, and binding
obligation of each Buyer, enforceable against such Buyer in accordance with
its terms except as such enforceability may be limited by (i) bankruptcy,
insolvency, fraudulent conveyance,
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reorganization, moratorium or other similar laws affecting creditors'
rights, or (ii) general principles of equity relating to the availability
of equitable remedies (regardless of whether such agreement or instrument
is sought to be enforced in a proceeding at law or in equity). Upon the
execution and delivery by any Buyer of the agreements contemplated hereby
to be executed by such Buyer (collectively, the "Buyers' Documents"), each
of the Buyers' Documents will constitute the legal, valid, and binding
obligation of such Buyer, enforceable against such Buyer in accordance with
its terms except, in each case, as such enforceability may be limited by
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors' rights, or (ii)
general principles of equity relating to the availability of equitable
remedies (regardless of whether such agreement or instrument is sought to
be enforced in a proceeding at law or in equity). The execution and
delivery by Buyers of this Agreement, the Buyers' Documents and the
consummation of the transactions contemplated by this Agreement has been,
duly authorized by all necessary action by such Buyer's governing bodies.
(ii) Neither the execution and delivery of this Agreement or the
Buyers' Documents by a Buyer nor the consummation or performance of any of
the transactions contemplated by this Agreement by such Buyer will,
directly or indirectly (with or without notice or lapse of time): (a)
breach (i) any provision of any of the governing documents of such Buyer or
(ii) any resolution adopted by the governing bodies of such Buyer; (b)
breach in any material respect any Applicable Law applicable to such Buyer
or give any Governmental Authority or other Person the right to challenge
such Buyer's participation in any of the transactions contemplated by this
Agreement or to exercise any remedy or obtain any relief under any
Applicable Law as a result of such Buyer's participation therein; or (c)
result in the imposition or creation of any Encumbrance upon or with
respect to any of the assets of the Company except as contemplated by this
Agreement.
(c) Availability of Funds.
Buyers have sufficient funds available to pay the Purchase Price.
4. COVENANTS
(a) Cooperation.
As soon as reasonably practicable following the date of this
Agreement, Buyers and Sellers shall cooperate with each other and use (and shall
cause their respective subsidiaries to use) their respective reasonable best
efforts to prepare and file with relevant insurance regulators requests for
approval of the transactions contemplated by the Merger Agreement and by this
Agreement and shall use all reasonable efforts to have such insurance regulators
approve the transactions contemplated by the Merger Agreement and by this
Agreement. Each party shall give to the other parties prompt written notice if
it receives any material notice or other communication from any insurance
regulator in connection with the transactions contemplated by the Merger
Agreement or by this Agreement, and, in the case of any such written notice or
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communication, shall promptly furnish the other parties with a copy thereof.
Each party shall each file or jointly file, if applicable, or cause to be filed,
promptly (but in any event within ten business days) after the date of this
Agreement, any notifications, approval applications or the like required to be
filed under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, as amended
(the "HSR Act") and, if requested by Sellers or Buyers, will use its reasonable
best efforts to obtain an early termination of the applicable waiting period.
Buyers shall pay all filing and similar fees and related expenses payable in
connection with the filings under the HSR Act.
(b) Allocation of Expenses.
At the Closing, each Buyer shall reimburse Sellers or FGI for its
Allocable Portion, as defined below, of 52% of the actual and reasonably
documented out of pocket costs and expenses (including, without limitation, all
fees and expenses of third party agents, representatives, consultants, actuaries
and accountants (collectively, "Third Party Consultants") retained by FGI or
Sellers; provided, however, that all fees and expenses of counsel and of
investment bankers shall be borne solely by the party engaging such counsel or
investment banker and shall not be subject to reimbursement hereby (except for
such fees of counsel related to any notifications, approval applications or the
like required to be filed under the HSR Act on behalf of Sellers related to the
transactions contemplated by this Agreement, which shall be borne by Buyers))
incurred by FGI in connection with the transactions contemplated by the Merger
Agreement and the Voting Agreement, dated March 1, 2007, by and among FGI, BWH
Acquisition, the Company and the several stockholders of the Company party
thereto (the "Voting Agreement"). The Buyers' "Allocable Portion" shall be as
follows: Farmers Exchange - 37.5%, Truck Exchange - 8.75%, Fire Exchange -
3.75%, and Mid-Century - 50%. In the event that FGI and/or Sellers receive
payments pursuant to Section 8.6 of the Merger Agreement upon the termination of
the Merger Agreement, FGI and/or Sellers shall promptly pay each Buyer (i) its
Allocable Portion of all actual and reasonably documented out of pocket fees and
expenses of Third Party Consultants retained by Buyers in connection with their
acquisition of the Transferred Shares and (ii) its Allocable Portion of 52% of
the aggregate amounts of the remaining balance of such payments after deducting
(x) all actual and reasonably documented out of pocket fees and expenses of
counsel and of investment bankers engaged by FGI or Sellers in connection with
the transactions contemplated by the Merger Agreement and the Voting Agreement
whose fees and expenses were borne solely by FGI and/or Sellers in accordance
with this Section 4(b) and (y) all actual and reasonably documented out of
pocket fees and expenses of counsel and of investment bankers engaged by Buyers
in connection with their acquisition of the Transferred Shares whose fees and
expenses were borne solely by Buyers in accordance with this Section 4(b).
(c) Actions with Respect to Merger Agreement.
Buyers hereby acknowledge that FGI has the right, in its sole
discretion, to take all actions with respect to the Merger Agreement and the
Voting Agreement, including, without limitation, granting waivers, enforcing the
terms of such agreements, approving amendments or determining not to take such
actions. For the avoidance of doubt, Buyers have no liabilities or obligations
under and are not deemed to be third party beneficiaries of the Merger Agreement
and the Voting Agreement.
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(d) Attorney-in-Fact Relationship.
The existing attorney-in-fact relationship between FGI and Buyers will
remain unchanged and will include the insurance operations of the Company's
subsidiaries.
5. CONDITIONS
(a) Conditions to Each Party's Obligations. The respective obligation
of each party to consummate the transactions contemplated by this Agreement is
subject to the satisfaction or wavier at or prior to the Closing Date of each of
the following conditions:
(i) No Injunction. No temporary restraining order, preliminary or
permanent injunction or other judgment or order issued by any Governmental
Authority or other law, rule, legal restraint or prohibition shall be in
effect preventing the consummation of the transactions contemplated by this
Agreement or the Merger Agreement.
(ii) Regulatory Consents. (A) The waiting period (and any
extension of such period) applicable to the consummation of the
transactions contemplated by this Agreement under the HSR Act shall have
expired or been terminated and (B) all regulatory approvals from the
California, Florida, Ohio and Michigan Insurance Departments and all
insurance antitrust approvals shall have been obtained with respect to the
transactions contemplated by this Agreement and such approvals shall be in
full force and effect.
(iii) Merger. The Merger shall have been consummated pursuant to
the terms of the Merger Agreement.
(b) Conditions to Obligations of Buyers.
(i) Representations and Warranties; Performance of Obligations.
The representations and warranties of Sellers contained in Section 2 hereof
which are qualified by materiality shall be true and correct on and as of
the Closing Date as if such
representations and warranties were made anew on and as of the Closing
Date, and all other representations and warranties of Sellers contained in
Section 2 hereof shall be true and correct in all material respects on and
as of the Closing Date. All of the terms, covenants, agreements and
conditions of this Agreement to be complied with, performed or satisfied by
Sellers on or before the Closing Date shall have been duly complied with,
performed or satisfied in all material respects. Each Seller shall have
delivered to Buyers a certificate signed on behalf of such Seller by a
senior executive officer of such Seller to the foregoing effects dated the
Closing Date.
(c) Conditions to Obligations of Sellers.
(i) Representations and Warranties; Performance of Obligations.
The representations and warranties of Buyers contained in Section 3 hereof
which are qualified by materiality shall be true and correct on and as of
the Closing Date as if such representations and warranties were made anew
on and as of the Closing Date, and all other representations and warranties
of Buyers contained in Section 3 hereof shall be true and correct in all
material respects on and as of the Closing Date. All of the terms,
covenants, agreements and conditions of this Agreement to be complied with,
performed or satisfied by Buyers on or before the Closing Date shall have
been duly complied with, performed or satisfied in all material respects.
Each Buyer shall have delivered to Sellers a certificate signed on behalf
of such Buyer by a senior executive officer of such Buyer to the foregoing
effects dated the Closing Date.
6. TERMINATION
(a) Termination upon Termination of the Merger Agreement. This
Agreement will be automatically terminated without the need for action on the
part of any of the parties hereto if the Merger Agreement is terminated.
(b) Termination by Mutual Consent. This Agreement may be terminated at
any time prior to the Closing Date by mutual written consent of Sellers and
Buyers.
(c) Termination by Either Sellers or Buyers. This Agreement may be
terminated at any time prior the Closing Date by Sellers or by Buyers if the
Closing shall not have occurred by December 1, 2007 (the "Expiration Date");
provided, however, that if the Termination Date (as such term is defined in the
Merger Agreement) is extended by the parties to the Merger Agreement, then the
Expiration Date shall be extended to the same date to which the Termination Date
is extended.
(d) Effect of Termination. In the event of termination of this
Agreement pursuant to this Section 6, this Agreement shall become void and of no
effect with no liability to any Person on the part of any party hereto, except
for the obligations set forth in Section 4(b) and Section 7 and except that
nothing in this Section 6(d) shall relieve any party hereto of any liability or
damages to the other party hereto resulting from any willful or intentional
material breach of this Agreement.
7. GENERAL PROVISIONS
(a) Notice Provisions.
Any notice that is required or permitted under this Agreement may be
given by personal delivery to the party entitled thereto, by facsimile
transmission, by any courier service which guarantees overnight, receipted
delivery, or by U.S. Certified or Registered Mail, return receipt requested,
addressed to the party entitled thereto, at:
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If to Sellers:
Farmers Group, Inc.
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxx, General Counsel and Xxxxx Xxxx, Corporate Secretary
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
If to Buyers:
Farmers Insurance Exchange
0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Senior Vice President-Finance and Treasurer
with a copy (which shall not constitute notice) to:
Lord, Bissell & Brook LLP
000 X. Xxxxx, Xxxxx 000
Xxx Xxxxxxx, XX
Fax: (000) 000-0000
Attn: Xxxxxxxx X. Bank
Any notices will be sent to the address or facsimile number
when permitted, as specified in this Agreement or to such other address or
facsimile number for a party as it may specify in writing to the other parties
from time to time. Any notice properly given to the proper address will be
deemed to have been given when dispatched.
(b) Further Acts.
In addition to the acts recited in this Agreement to be performed by
the parties hereto, each party agrees to execute and deliver such additional
agreements and documents and take such additional actions as are consistent with
the provisions of this Agreement and may be reasonably necessary or appropriate
in connection with the transactions contemplated by the Merger Agreement and by
this Agreement, as reasonably requested by another party hereto.
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(c) Amendment.
No amendment to this Agreement will be valid or binding unless and
until reduced to writing and executed by each of the parties hereto.
(d) Assignment.
Except as otherwise provided in this Agreement, neither party may
assign any of its rights or delegate any of its duties under this Agreement to
any Person without the prior written consent of the other parties; provided
however, that any party may assign its duties under this Agreement to one or
more of its subsidiaries provided the assigning party agrees in writing to
remain fully responsible for such delegated duties subsequent to such
assignment.
(e) Merger and Integration; Binding on Successors; No Third Party
Beneficiaries.
This Agreement sets out the entire understanding of the parties with
respect to the purchase and sale of the Transferred Shares and supersedes all
prior communications, agreements and understandings, whether written or oral,
concerning such matters. No party will be liable or bound to any party in any
manner by any warranties, representations, or covenants other than those set
forth in this Agreement or the Merger Agreement. The terms and conditions of
this Agreement will inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any third party any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement or the Merger Agreement.
(f) Survival.
Any provision specifically designated in this Agreement to survive the
termination hereof and (unless otherwise expressly provided) any other provision
which, by its nature, necessarily may become performable by a party after
termination of this Agreement will survive termination of this Agreement.
(g) Forbearance and Waiver.
Except where a specific time period is provided hereunder for the
exercise of a right or remedy, any party's forbearance in the exercise or
enforcement of any right or remedy under this Agreement will not constitute a
waiver thereof, and a waiver under one circumstance will not constitute a waiver
under any other circumstance.
(h) Partial Invalidity.
Any invalidity, illegality or unenforceability of any provision of
this Agreement in any jurisdiction will not invalidate or render illegal or
unenforceable the remaining provisions hereof in such jurisdiction and will not
invalidate or render illegal or unenforceable such provision in any other
jurisdiction.
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(i) Governing Law.
THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT AND THE RIGHTS
OF THE PARTIES HEREUNDER WILL BE INTERPRETED, CONSTRUED, AND GOVERNED BY THE
LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAW
PRINCIPLES.
(j) Construction.
This Agreement was prepared jointly by the parties, and no rule that
it be construed against the drafter will have any application in its
construction or interpretation.
(k) Multiple Counterparts.
This Agreement may be executed by the parties in multiple original
counterparts, and each such counterpart will constitute an original hereof.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
SELLERS:
TRUCK UNDERWRITERS ASSOCIATION
By: /s/ F. Xxxxxx Xxxxxxxx
-----------------------------------------------
Name: F. Xxxxxx Xxxxxxxx
Title: President
FIRE UNDERWRITERS ASSOCIATION
By: /s/ F. Xxxxxx Xxxxxxxx
-----------------------------------------------
Name: F. Xxxxxx Xxxxxxxx
Title: President
FGI:
FARMERS GROUP, INC.
By: /s/ F. Xxxxxx Xxxxxxxx
-----------------------------------------------
Name: F. Xxxxxx Xxxxxxxx
Title: President
BUYERS:
FARMERS INSURANCE EXCHANGE
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
FIRE INSURANCE EXCHANGE
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
TRUCK INSURANCE EXCHANGE
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
MID-CENTURY INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
