Exhibit 10.7
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made and entered
into this 22nd day of November, 1996, by and between InsWeb Corporation, a
California corporation ("Seller"), and Insurance Information Exchange, LLC, a
Delaware limited liability corporation ("Buyer");
WITNESSETH:
WHEREAS, Seller is engaged in furnishing development and marketing
services to the insurance industry and consumers relating to the Internet
worldwide communications network and conducts several lines of business,
including its Property & Casualty Agent Home Page Business (the "P&C Agent
Business"); and,
WHEREAS, the P&C Agent Business includes certain computer programs
developed and owned by Seller; and,
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from
Seller, certain of the assets of Seller relating to the P&C Agent Business, and
Seller desires to transfer, and Buyer desires to assume, certain liabilities of
Seller arising in connection with the P&C Agent Business, all upon the terms and
conditions and subject to the limited exceptions set forth herein; and,
WHEREAS, Seller conducts several other lines of business through other
divisions to be retained by Seller (the "Other Divisions"), and such Other
Divisions are and will be dependent on the products and services of the P&C
Agent Business, and the P&C Agent Business will be dependent on the products and
services of Seller, the parties desire to provide for certain transition
procedures, as well as an ongoing relationship;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, and agreements of the parties hereinafter set forth, the
parties hereto, intending to be legally bound, do hereby agree as follows:
Article I
DEFINITIONS
As used herein, the following terms shall have the meanings set forth
in this Article 1:
1.1 "Assets". The rights and property, tangible and intangible,
including but not limited to the goodwill associated therewith, used exclusively
in the P&C Agent Business, as owned and operated by Seller, and as listed and
described in Article II hereof.
1.2 "InsWeb Site". Seller's World Wide Web site on the Internet
communications network, accessible as "xxxxxx.xxx".
1.3 "Affiliate". A corporation, company, or other entity in which a
party hereto owns, directly or indirectly, a beneficial interest of fifty
percent (50%) or more, or which, directly or indirectly, owns a beneficial
interest of fifty percent (50%) or more in such party or which, directly or
indirectly, controls such party, or is directly or indirectly controlled by, or
under common control with, such party and/or the parent company of such party.
1.4 "P&C Agents". Property and casualty insurance agents and
organizations of such a(rents , excluding Captive Agents and Managing General
Agents.
1.5 "Captive Agents". Insurance agents, including property and casualty
agents, that are affiliated exclusively with one insurance carrier.
1.6 "Managing General Agents". Insurance agents, including property and
casualty agents, that maintain a managing general agency relationship with one
or more insurance carriers by which they provide a full range of representation
of such carriers in a certain state or territory in such matters as the
solicitation of insurance business, the collection of premiums and the
adjustment and settlement of claims.
1.7 "Transition Date". The date at which the information of the
customers of the P&C Agent Business formerly posted on the InsWeb Site will be
posted on Buyer's Internet site. The target Transition Date shall be the first
end-of-the-month date occurring sixty (60) days following the Closing Date.
Article II
PURCHASE AND SALE OF ASSETS
2.1 PURCHASE AND SALE OF ASSETS. Upon the terms and subject to the
conditions of this Agreement, Buyer agrees to purchase, accept, and acquire from
Seller, and Seller agrees to sell, transfer, assign, convey, and deliver to
Buyer, at the Closing, all right, title, and interest of Seller in and to the
Assets. The Assets shall include the following:
(a) CUSTOMER CONTRACTS. All executed contracts, licenses,
arrangements and permissions with P&C Agents regarding the presentation of P&C
Agent information on the InsWeb Site and services related thereto, including all
rights and future payments to be made pursuant to the terms of the executed
contracts (the "Customer Contracts"), as well as a list of pending, transactions
with all P&C Agents, all of which are listed in Schedule A attached hereto and
incorporated herein.
(b) OTHER CONTRACTS. All contracts, agreements, licenses,
commitments, arrangements, and permissions, other than the Customer Contracts,
relating exclusively to the P&C Agent Business (the "General Contracts"), all of
which are listed in Schedule B attached hereto and incorporated herein.
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(c) BUSINESS RECORDS. All business and marketing records, including
accounting and operating records, budgets, customer lists, supplier lists,
files, correspondence and mailing lists, copies of advertising materials and
brochures, and other business records used in the P&C Agent Business (the
"Business Records").
(d) PREPAID ACCOUNTS. All sums prepaid by customers of the P&C Agent
Business, for services to be rendered subsequent to the Transition Date (the
"Prepaid Accounts).
2.2 EXCLUDED ASSETS. Seller shall not sell or assign to Buyer, and
Buyer shall not purchase or accept assignment from Seller of, the assets
identified in Schedule C (the "Excluded Assets").
Article III
ASSUMPTION OF LIABILITIES
3.1 ENUMERATION OF ASSUMED LIABILITIES. At and after the Closing, Buyer
shall assume and agree to pay or perform only the liabilities and obligations of
Seller that arise out of the P&C Agent Business or the Assets and that are
expressly identified in this Section 3.1 and specifically listed on Schedule
D(the "Assumed Liabilities"). All other liabilities of any description
whatsoever, whether known or unknown, are specifically not assumed by Buyer. The
Assumed Liabilities shall consist of the following:
Article IV
PRICE AND PAYMENT
4.1 PURCHASE PRICE. The purchase price for the Assets shall be
$650,000.
4.2 PAYMENT. The Purchase Price shall be due and payable in a lump sum
on the second anniversary of the date of this Agreement, at which time it shall
be offset against sums payable by Seller to Buyer pursuant to that certain
Nonexclusive Joint Marketing and License Agreement between the parties of even
date herewith.
Article V
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as may be set forth in a list of exceptions in Schedule E
hereto, Seller hereby represents and warrants to Buyer as follows:
5.1 ORGANIZATION. Seller is a corporation validly existing and in good
standing under the laws of the State of Delaware with the corporate power and
authority to conduct its business (including the P&C Agent Business) and to own
and lease its properties and assets (including the Assets) and, as to the
conduct of the P&C Agent Business and the use and ownership of the Assets.
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5.2 POWER AND AUTHORITY. Seller has the power and authority to execute,
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by it in connection with the transactions contemplated
hereby and thereby, has taken all necessary corporate action to authorize the
execution and delivery of this Agreement and such other agreements and
instruments and the consummation of the transactions contemplated hereby and
thereby. This Agreement is, and the other agreements and instruments to be
executed and delivered by Seller in connection with the transactions
contemplated hereby shall be, the legal, valid, and binding obligations of
Seller, enforceable in accordance with their terms.
5.3 NO CONFLICT. Neither the execution and delivery of this Agreement
and the other agreements and instruments to be executed and delivered in
connection with the transactions contemplated hereby or thereby, nor the
consummation of the transactions contemplated hereby or thereby, will violate or
conflict with (a) any federal, state, or local law, regulation, ordinance,
zoning requirement, governmental restriction, order, judgment, or decree
applicable to Seller, the P&C Agent Business, or the Assets, (b) any provision
of any charter, bylaw or other governing or organizational instrument of Seller;
or, (c) any mortgage, indenture, license, instrument, trust, contract,
agreement, or other commitment or arrangement to which Seller is a party or by
which Seller or any of the Assets is bound.
5.4 REQUIRED GOVERNMENT CONSENTS. Seller is aware of no approval,
authorization, certification, consent, variance, permission, license, or permit
to or from, or notice, filing, or recording to or with, federal, state, or local
governmental authorities necessary for the execution and delivery of this
Agreement and the other agreements and instruments to be executed and delivered
in connection with the (a) transactions contemplated hereby, or (b) the
ownership and use of the Assets or the conduct of the P&C Agent Business in the
manner conducted by Seller.
5.5 REQUIRED CONTRACT CONSENTS. No approval, authorization, consent,
permission, or waiver to or from, or notice, filing, or recording to or with,
any person is necessary for (a) the execution and delivery of this Agreement and
the other agreements and instruments to be executed and delivered in connection
with the transactions contemplated hereby or thereby by Seller or the
consummation by Seller of the transactions contemplated hereby; (b) the transfer
and assignment to Buyer at Closing of the Customer Contracts, the General
Contracts, or (c) the ownership and use of the Assets and the conduct of the P&C
Agent Business (including by Buyer).
5.6 TITLE TO TANGIBLE PROPERTY. Buyer at Closing shall obtain good and
marketable title to all of the Assets, free and clear of all title defects,
liens, restrictions, claims, charges, security interests, or other encumbrances
of any nature whatsoever.
5.7 CONTRACTS. The Customer Contracts and the General Contracts are
valid, binding, and enforceable in accordance with their terms and are in full
force and effect. There are no existing defaults by Seller under any such
contracts and no act, event, or omission has occurred that, whether with or
without notice, lapse of time, or both, would constitute a default thereunder.
5.8 LITIGATION. No claim, action, suit, proceeding, inquiry, hearing,
arbitration, administrative proceeding, or investigation (collectively,
"Litigation") is pending, or, to Seller's
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best knowledge, threatened against Seller, its present or former directors,
officers, or employees, affecting, involving, or relating to the P&C Agent
Business or any of the Assets. No Litigation has been brought against Seller
affecting, involving, or relating to the P&C Agent Business or any of the
Assets. Seller knows of no facts that could reasonably be expected to serve as
the basis for Litigation against itself (or the Buyer upon acquisition of the
P&C Agent Business), its present or former directors, officers, or employees,
affecting, involving, or relating to the P&C Agent Business or the Assets.
5.9 BROKER'S OR FINDER'S FEES. Seller has not authorized any person to
act as broker or finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement in any manner that may or will
impose liability on Buyer.
5.10 DISCLAIMER. Except as expressly set forth in this Agreement or in
any document, certificate, agreement, or other instrument furnished or to be
furnished to Buyer pursuant to this Agreement, SELLER MAKES NO REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE ASSETS OR XXX P&C AGENT
BUSINESS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Article VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
6.1 ORGANIZATION. Buyer is a limited liability corporation validly
existing and in good standing under the laws of the State of Delaware, with the
power and authority to conduct its business and to own and lease its properties
and assets.
6.2 POWER AND AUTHORITY. Buyer has the power and authority to execute,
deliver, and perform this Agreement and the other agreements and instruments to
be executed and delivered by it in connection with the transactions contemplated
hereby and thereby, and Buyer has taken all necessary action to authorize the
execution and delivery of this Agreement and such other agreements and
instruments and the consummation of the transactions contemplated hereby and
thereby. This Agreement is, and, when such other agreements and instruments are
executed and delivered, the other agreements and instruments to be executed and
delivered by Buyer in connection with the transactions contemplated hereby and
thereby shall be, the legal, valid, and binding obligation of Buyer, enforceable
in accordance with their terms.
6.3 BROKER'S OR FINDER'S FEES. Buyers has not authorized any person to
act as broker, finder, or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
6.4 NO CONFLICT. Neither the execution and delivery by Buyer of this
Agreement and of the other agreements and instruments to be executed and
delivered by Buyer in connection with the transactions contemplated hereby or
thereby, nor the consummation by Buyer of the
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transactions contemplated hereby or thereby will violate or conflict with (a)
any federal, state, or local law, regulation, ordinance, governmental
restriction, order, judgment, or decree applicable to Buyer, or (b) any
provision of any charter, bylaw, or other governing or organizational instrument
of Buyer.
Article VII
CONDITIONS TO SELLER'S OBLIGATIONS
Each of the obligations of Seller to be performed hereunder shall be
subject to the satisfaction (or waiver by Seller) at or prior to the Closing
Date of each of the following conditions:
7.1 REPRESENTATIONS AND WARRANTIES TRUE. Buyer's representations and
warranties contained in this Agreement shall be true on and as of the Closing
Date.
7.2 LITIGATION. No Litigation shall be threatened or pending against
Buyer or Seller before any court or governmental agency that, in the reasonable
opinion of counsel for Seller, could result in the restraint or prohibition of
any such party, or the obtaining of damages or other relief from such party, in
connection with this Agreement or the consummation of the transactions
contemplated hereby.
7.3 DOCUMENTS SATISFACTORY IN FORM AND SUBSTANCE. All agreements and
other documents delivered by Buyer to seller hereunder shall be in form and
substance satisfactory to counsel for Seller, in the exercise of such counsel's
reasonable judgment.
7.4 OTHER AGREEMENTS. The Seller and the Buyer shall have entered into
contemporaneously herewith a Non Exclusive Joint Marketing and License Agreement
and an Asset Purchase Agreement, the Seller shall have entered into a Letter of
Credit Agreement with Buyer's affiliate, AMS Services, Inc. and shall have
executed the promissory note referenced in such agreement, and an Employment
Agreement with Xx. Xxxxxxx Enan and the Buyer shall have entered into an Option
Agreement with Xx. Xxxxxxx Enan and a Stock Purchase Agreement with certain
employees of the Company.
Article VIII
CONDITIONS TO BUYER'S OBLIGATIONS
Each of the obligations of Buyer to be performed hereunder shall be
subject to the satisfaction (or the waiver by Buyer) at or prior to the Closing
Date of each of the following conditions:
8.1 REPRESENTATIONS AND WARRANTIES TRUE. Seller's representations and
warranties contained in this Agreement shall be true on and as of the Closing
Date.
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8.2 PERFORMANCE. Seller shall have performed and complied with all
agreements, obligations, and conditions required by this Agreement to be
performed or complied with by it on or prior to the Closing.
8.3 NO LITIGATION. No Litigation shall be threatened or pending against
Buyer or Seller before any court or governmental agency that, in the reasonable
opinion of counsel for Seller, could result in the restraint or prohibition of
any such party, or the obtaining of damages or other relief from such party, in
connection with this Agreement or the consummation of the transactions
contemplated hereby.
8.4 OTHER AGREEMENTS. The Seller and the Buyer shall have entered into
contemporaneously herewith a Non Exclusive Joint Marketing and License Agreement
and an Asset Purchase Agreement, the Seller shall have entered into a Letter of
Credit Agreement with Buyer's affiliate, AMS Services, Inc. and shall have
executed the promissory note referenced in such agreement, and an Employment
Agreement with Xx. Xxxxxxx Enan and the Buyer shall have entered into an Option
Agreement with Xx. Xxxxxxx Enan and a Stock Purchase Agreement with certain
employees of the Company.
Article IX
CLOSING
9.1 CLOSING. The closing of the purchase and sale of the Assets and the
transfer and assumption of the Assumed Liabilities (the "Closing") shall take
place on November 22, 1996 at the offices of Seller at 9:30 A.M. local time, or
at such other time and place as the parties may agree.
9.2 ACTIONS AT CLOSING. At Closing, Buyer and Seller shall take the
following actions, in addition to such other actions as may otherwise be
required under this Agreement:
(a) Conveyance Instruments. Seller shall deliver to Buyer such,
bills of sale, assignments, and other instruments of conveyance and transfer as
Buyer may reasonably request to effect the assignment to Buyer of the Assets.
(b) Master Copy of P&C Software. Seller shall deliver to Buyer a
master copy of each Software Program (in both source code and object code form).
9.3 FURTHER ASSURANCES. At and after the Closing, without further
consideration, Seller shall take all such other action and shall procure or
execute, acknowledge, and deliver all such further certificates, conveyance
instruments, consents, and other documents as Buyer or its counsel may
reasonably request (1) to vest in Buyer, and perfect and protect Buyer's fight,
title, and interest in, and enjoyment of, the Assets and the P&C Agent Business,
or (2) to ensure more effectively the compliance of Seller with its agreements,
covenants, warranties, and representatives under this Agreement.
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Article X
COVENANTS OF SELLER AND BUYER FOLLOWING CLOSING
10.1 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated to the Assets and Assumed Liabilities as set forth in Schedule F and
all tax returns and reports filed by Seller and Buyer with respect to the
transactions contemplated by this Agreement shall be consistent with that
allocation.
10.2 TRANSFER TAXES. Except as provided in Section 12.1 regarding tax
claims based on transactions prior to the Closing, all sales, transfer, and
similar taxes and fees (including all recording fees, if any) incurred in
connection with this Agreement and the transactions contemplated hereby shall be
borne by Buyer and Buyer shall file all necessary documentation with respect to
such taxes.
10.3 NON-COMPETE. For a period of five (5) years after the Closing
Date, Seller shall not engage in any business activity that competes with the
P&C Agent Business, anywhere in the United States and Canada (the "Territory"),
except as a customer or authorized distributor of Buyer or otherwise with
Buyer's consent (which may be withheld in Buyer's sole discretion). Seller
acknowledges and agrees that the current market for the P&C Agent Business can
easily be extended throughout the entire Territory via the Internet, and it is
therefore reasonable to prohibit Seller from competing with Buyer anywhere in
such Territory. Seller shall not engage in any such activity, directly or
indirectly, on its own behalf or in the service of or on behalf of others.
Notwithstanding the foregoing, this Section 10.3 shall not restrict in any
manner (i) the business activities of Seller's Other Divisions, as they are
currently conducted, with respect to agents or organizations of agents that do
not fall within the definition of P&C Agents; (ii) the ability of Seller to
maintain links to and from Buyer's Internet site; or, (iii) the acquisition or
use of any programming or materials by Seller solely for internal purposes or
for purposes of its Other Divisions that do not compete with the P&C Agent
Business.
10.4 NONSOLICITATION OF PERSONNEL. For a period of five (5) years after
the Closing Date, neither party shall solicit, divert, or recruit, for its own
benefit or for the benefit of any other person or entity, any managerial or
executive employee of the other party.
Article XI
CERTAIN TRANSITION AND COOPERATION MATTERS
11.1 TRANSITION SERVICES PROVIDED BY BOTH PARTIES.
(a) COMMITMENT. For the period following the Closing until the
Transition Date, the parties shall provide the following Transition Services:
(i) Establish and maintain a hot link between the InsWeb Site
and Buyer's Internet server on which the P&C Agent Business services will be
presented;
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(ii) Maintain on the InsWeb Site references to P&C Agent Home
Pages comparable to those currently in place.
(iii) Work together to effect a transition of the P&C Agent
Business that is both effective and as transparent to customers as possible.
(b) MANNER AND TIME OF PERFORMANCE. Each party shall perform the
Transition Services with the degree of care, skill, and diligence with which it
previously performed, or may continue to perform, similar services for itself or
others.
11.2 ONGOING COOPERATION. The continuing cooperative efforts of the
par-ties shall be governed by that certain Nonexclusive Joint Marketing and
License Agreement between the parties of even date herewith.
Article XII
INDEMNITY
12.1 INDEMNIFICATION BY SELLER. Seller shall indemnify, defend, and
hold harmless Buyer and its respective successors and assigns and the directors,
officers, employees, and agents of each (collectively, the "Buyer Group"), at,
and at any time after, the Closing, from and against any and all demands,
claims, actions, or causes of action, assessments, losses, damages, liabilities,
costs, and expenses, including reasonable fees and expenses of counsel, other
expenses of investigation, handling, and litigation, and settlement amounts,
together with interest and penalties (collectively, a "Loss" or "Losses"),
asserted against, resulting to, imposed upon, or incurred by the Buyer Group,
directly or indirectly, by reason of, resulting from, or arising in connection
with any of the following:
(a) BREACH OF OBLIGATION. Any breach of any representation,
warranty, or agreement of Seller contained in or made pursuant to this
Agreement, including the agreements and other instruments contemplated hereby.
(b) EXCLUDED LIABILITIES. Any liabilities or obligations of any kind
or nature whatsoever, whether accrued, absolute, contingent, or otherwise, known
or unknown, arising out of or in connection with the conduct of the P&C Agent
Business or the ownership or use of the Assets prior to the Closing Date, except
for the Assumed Liabilities.
(c) INCIDENTAL MATTERS. To the extent not covered by the foregoing,
any and all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including reasonable fees and
expenses of counsel, other expenses of investigation, handling, and litigation,
and settlement amounts, together with interest and penalties, incident to the
foregoing.
12.2 INDEMNIFICATION BY BUYER. Buyer shall indemnify, defend, and hold
harmless Seller and its successors and assigns and the directors, officers,
employees, and agents of each (collectively, the "Seller Group"), at, and at any
time after, the Closing, from and against any
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and all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including reasonable fees and
expenses of counsel, other expenses of investigation, handling, and litigation,
and settlement amounts and including any net income or sales tax amount
associated with all such indemnification recoveries (collectively, a "Loss" or
"Losses"), asserted against, resulting to, imposed upon, or incurred by the
Seller Group, to the extent arising from any of the following:
(a) BREACH OF OBLIGATION. Any breach of any representation,
warranty, or agreement of Buyer contained in or made pursuant to this Agreement,
including the agreements and other instruments contemplated hereby.
(b) ASSUMED LIABILITIES. Any of the Assumed Liabilities, except
insofar as such Loss represents an Excluded Liability.
(c) INCIDENTAL MATTERS. To the extent not covered by the foregoing,
any and all demands, claims, actions or causes of action, assessments, losses,
damages, liabilities, costs, and expenses, including reasonable fees and
expenses of counsel, other expenses of investigation, handling, and litigation,
and settlement amounts, together with interest and penalties, incident to the
foregoing.
12.3 NOTICE OF CLAIM. The party entitled to indemnification hereunder
(the "Claimant") shall promptly deliver to the party liable for such
indemnification hereunder (the "Obligor") notice in writing (the "Required
Notice") of any claim for recovery under Section 12.1 or Section 12.2,
specifying in reasonable detail the nature of the Loss, and, if known, the
amount, or an estimate of the amount, of the liability arising therefrom (the
"Claim"). The Claimant shall provide to the Obligor as promptly as practicable
thereafter information and documentation reasonably requested by the Obligor to
support and verify the claim asserted, provided that, in so doing, it may
restrict or condition any disclosure in the interest of preserving privileges of
importance in any foreseeable litigation.
12.4 DEFENSE. If the facts pertaining to the Loss arise out of the
claim of any third party (other than a member of the Buyer Group or Seller
Group, whichever is entitled to indemnification for such matter) available by
virtue of the circumstances of the Loss, the Obligor may assume the defense or
the prosecution thereof, including the employment of counsel or accountants, at
its cost and expense. The Claimant shall have the right to employ counsel
separate from counsel employed by the Obligor in any such action and to
participate therein, but the fees and expenses of such counsel employed by the
Claimant shall be at its expense. The Claimant shall have the right to determine
and adopt (or, in the case of a proposal by Obligor, to approve) a settlement of
such matter in its reasonable discretion, except that Claimant need not consent
to any settlement that (1) imposes any nonmonetary obligation or (2) Obligor
does not agree to pay in full. The Obligor shall not be liable for any
settlement of any such claim effected without its prior written consent, which
shall not be unreasonably withheld. Whether or not the Obligor chooses to so
defend or prosecute such claim, all the parties hereto shall cooperate in the
defense or prosecution thereof and shall furnish such records, information, and
testimony, and
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attend such conferences, discovery proceedings, hearings, trials, and appeals,
as may be reasonably requested in connection therewith.
12.5 LIMITATIONS. Notwithstanding anything in this Article XII to the
contrary:
(a) THRESHOLD. No indemnification or any other claim for damages
under this Agreement shall be payable by any party until (and then only to the
extent that) the total of all Losses by the other party equals or exceeds
$10,000; provided that such limitation shall not apply to Losses based on
Excluded Liabilities.
(b) TIME OF ASSERTION. No indemnification shall be payable by either
party with respect to matters as to which the other party has not received
notice within twenty four (24) months after the Closing Date.
(c) MAXIMUM LIABILITY. A party's total liability for indemnification
pursuant to Sections 12.1 and 12.2 shall not exceed the price paid hereunder.
(d) EXCLUSIVE REMEDY. The parties hereto acknowledge and agree that
this Article XII is the exclusive remedy of the parties hereto for damages for
breach or misrepresentation of or under this Agreement, other than a claim or
interpleader based on Buyer's failure to discharge the Assumed Liabilities or
Seller's failure to discharge the Excluded Liabilities.
Article XIII
CONFIDENTIALITY
13.1 NONDISCLOSURE AND USE. Each party shall, and shall use its best
efforts to cause its personnel and agents to, hold in strict confidence, not
disclose to any person without the prior written consent of the other party, and
not to use for any purpose other than the limited purposes set forth herein, any
confidential information of the other party disclosed prior to the Closing or
during performance hereunder. Such confidential information specifically
includes all source and object code, including any proposed design and
specifications for future products and products in development, marketing plans,
and all other technical and business information concerning the P&C Agent
Business or the Other Divisions of Seller.
13.2 PERMITTED DISCLOSURES. Notwithstanding Section 13. 1, either party
may disclose confidential information (1) where necessary to any regulatory
authorities or governmental agencies pursuant to legal process or (2) if
required by court order or decree.
13.3 SCOPE OF CONFIDENTIAL INFORMATION. For purposes of this Agreement,
information shall not be deemed confidential (1) if such information is
available in full from public sources; (2) if such information is received from
a third party not under an obligation to keep such information confidential; or
(3) if the recipient can conclusively demonstrate that such information was
independently developed by the recipient.
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Article XIV
MISCELLANEOUS
14.1 ENTIRE AGREEMENT. This Agreement (including the Schedules), and
the other certificates, agreements, and other instruments to be executed and
delivered by the parties in connection with the transactions contemplated
hereby, constitute the sole understanding of the parties with respect to the
subject matter hereof. No amendment, modification, or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto.
14.2 PARTIES BOUND BY AGREEMENT; SUCCESSORS AND ASSIGNS. The terms,
conditions, and obligations of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and the respective successors and assigns
thereof
14.3 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
14.4 HEADINGS. The headings of the Sections and paragraphs of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof
14.5 MODIFICATION AND WAIVER. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party that is entitled to
the benefits thereof No waiver of any of the provisions of this Agreement shall
be deemed to or shall constitute a waiver of any other provision hereof (whether
or not similar).
14.6 EXPENSES. Seller and Buyer shall each pay all costs and expenses
incurred by it or on its behalf in connection with this Agreement and the
transactions contemplated hereby, including fees and expenses of its own
financial consultants, accounts, and counsel.
14.7 NOTICES. Any notice, request, instruction, or other document to be
given hereunder by any party hereto to any other party hereto shall be in
writing and delivered personally or sent by registered or certified mail,
postage prepaid, if to Seller to:
InsWeb Corporation
0000 X. Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
with a copy to: Chief Financial Officer
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if to Buyer to:
Insurance Information Exchange
0000 Xxxx Xx Xxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: President
with a copy to:
AMS Services, Inc.
000 Xxxxxxxxxx Xxxxxx
Tower 1, Floor 10
Xxxxxx, XX 00000
Attention: General Counsel
or at such other address for a party as shall be specified by like notice. Any
notice that is delivered personally in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party (or its agent for notices hereunder). Any notice that is
addressed and mailed in the manner herein provided shall be conclusively
presumed to have been duly given to the party to which it is addressed at the
close of business, local time of the recipient, on the fourth business day after
the day it is so placed in the mail.
14.8 BULK SALES LAW. The parties waive compliance with any bulk sales
laws or similar laws relating to notices to creditors.
14.9 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of California without giving effect
to the principles of conflicts of law thereof
14.10 PUBLIC ANNOUNCEMENTS. Seller and Buyer shall consult with each
other before issuing any press releases or otherwise making any public
statements with respect to this Agreement and the transactions contemplated
hereby. Neither Seller nor Buyer shall issue any such press release or make any
public statement without the agreement of the other party, except as such
party's counsel advises in writing may be required by law.
14.11 THIRD-PARTY BENEFICIARIES. With the exception of the parties to
this Agreement and their Affiliates, there shall exist no right of any person to
claim a beneficial interest in this Agreement or any rights occurring by virtue
of this Agreement.
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14.12 "INCLUDING". Words of inclusion shall not be construed as terms
of limitation herein, so that references to "included" matters shall be regarded
as nonexclusive, noncharacterizing illustrations.
14.13 REFERENCES. Whenever reference is made in this Agreement to any
Article, Section, or Schedule, such reference shall be deemed to apply to the
specified Article or Section of this Agreement or the specified Schedule to this
Agreement.
14.14 SURVIVAL OF AGREEMENTS. All Covenants, agreements,
representations, and warranties made herein shall survive the execution and
delivery of this Agreement and the Closing.
IN WITNESS WHEREOF, each of the par-ties hereto has caused this
Agreement to be executed on its behalf on the date indicated.
INSURANCE INFORMATION EXCHANGE, L.L.C. INSWEB CORPORATION
By: /S/ XXXXX XXXXXX By: /S/ XXXXXXX X. XXXXXXXXX
------------------------------ ---------------------------
Title: President Title: President
Date: Date:
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SCHEDULE A
TO ASSET PURCHASE AGREEMENT
CUSTOMER CONTRACTS
1.) [To be listed]
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SCHEDULE B
TO ASSET PURCHASE AGREEMENT
GENERAL CONTRACTS
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SCHEDULE C
TO ASSET PURCHASE AGREEMENT
EXCLUDED ASSETS
1. All business and assets of the Other Divisions of InsWeb.
2. All business and assets of the P&C Division of InsWeb devoted to dealing
with insurance companies and managing general agents ("MGA's").
3. That portion of the business and assets of the P&C Division of InsWeb
devoted to dealing with Captive Agents, to the extent consistent with the
understandings of the parties pursuant to the Nonexclusive Joint Marketing
and License Agreement between the parties hereto.
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SCHEDULE D
TO ASSET PURCHASE AGREEMENT
ASSUMED LIABILITIES
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SCHEDULE E
TO ASSET PURCHASE AGREEMENT
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
No exceptions taken.
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SCHEDULE F
TO ASSET PURCHASE AGREEMENT
ALLOCATION OF PURCHASE PRICE
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