EXHIBIT 2.1
TABLE OF CONTENTS
Page
ARTICLE 1 SALE OF ASSETS AND CLOSING.............................................................................1
1.1 Assets...........................................................................................1
1.2 Liabilities......................................................................................2
1.3 Consideration....................................................................................3
1.4 Closing..........................................................................................3
1.5 License; Further Assurances; Post-Closing Cooperation............................................4
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER...............................................................5
2.1 Organization.....................................................................................5
2.2 Authority........................................................................................5
2.3 No Conflicts.....................................................................................5
2.4 Governmental Approvals and Filings...............................................................6
2.5 No Undisclosed Liabilities.......................................................................6
2.6 Taxes............................................................................................6
2.7 Legal Proceedings................................................................................6
2.8 Intellectual Property............................................................................7
2.9 Accuracy of Reports..............................................................................7
2.10 Material Contracts...............................................................................8
2.11 Brokers..........................................................................................8
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PURCHASER............................................................8
3.1 Organization.....................................................................................8
3.2 Authority........................................................................................8
3.3 No Conflicts.....................................................................................9
3.4 Governmental Approvals and Filings...............................................................9
3.5 Capital Structure................................................................................9
3.6 SEC Documents....................................................................................9
3.7 Shares of Common Stock..........................................................................10
3.8 Absence of Certain Changes or Events............................................................10
3.9 Brokers.........................................................................................10
ARTICLE 4 COVENANTS OF SELLER...................................................................................10
4.1 HSR Filings.....................................................................................10
4.2 Investigation by Purchaser......................................................................11
4.3 Conduct of Business.............................................................................11
4.4 Noncompetition..................................................................................11
4.5 Fulfillment of Conditions.......................................................................13
4.6 Delivery of Disclosure Schedule; Acceptance.....................................................13
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4.7 Notice of Developments..........................................................................14
4.8 No Solicitation or Negotiation..................................................................14
4.9 Break-Up Fee....................................................................................14
4.10 Subsequent Transfers of Intellectual Property...................................................15
ARTICLE 5 COVENANTS OF PURCHASER................................................................................15
5.1 HSR Filings.....................................................................................15
5.2 Fulfillment of Conditions.......................................................................15
5.3 Insurance Carrier Appointments..................................................................15
5.4 Transfer Taxes..................................................................................16
5.5 Notice of Developments..........................................................................16
ARTICLE 6 MUTUAL COOPERATION COVENANTS..........................................................................16
6.1 Consents and Approvals..........................................................................16
6.2 Development of Transition Plans.................................................................16
6.3 Execution of Transition Plans...................................................................17
6.4 Employee Matters................................................................................17
6.5 Patent License Agreement........................................................................17
ARTICLE 7 CONDITIONS TO OBLIGATIONS OF PURCHASER................................................................18
7.1 Representations and Warranties..................................................................18
7.2 Performance.....................................................................................18
7.3 Orders and Laws; HSR Act........................................................................18
7.4 Deliveries......................................................................................18
7.5 No Material Adverse Effect......................................................................18
7.6 No Proceeding or Litigation.....................................................................18
7.7 Resolutions of Seller...........................................................................19
7.8 Incumbency Certificates.........................................................................19
7.9 Distribution Agreement..........................................................................19
7.10 Shareholders Agreement..........................................................................19
ARTICLE 8 CONDITIONS TO OBLIGATIONS OF SELLER AND INTUIT........................................................19
8.1 Representations and Warranties..................................................................19
8.2 Performance.....................................................................................19
8.3 Orders and Laws; HSR Act........................................................................19
8.4 Distribution Agreement..........................................................................19
8.5 Shareholders Agreement..........................................................................19
8.6 No Proceeding or Litigation.....................................................................20
8.7 Resolutions of Seller...........................................................................20
8.8 Incumbency Certificates.........................................................................20
8.9 Deliveries......................................................................................20
8.10 No Material Adverse Effect......................................................................20
ARTICLE 9 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS.....................................20
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ARTICLE 10 INDEMNIFICATION......................................................................................21
10.1 Indemnification.................................................................................21
10.2 Method of Asserting Claims......................................................................21
ARTICLE 11 TERMINATION..........................................................................................23
11.1 Termination.....................................................................................23
11.2 Effect of Termination...........................................................................24
ARTICLE 12 DEFINITIONS..........................................................................................25
12.1 Definitions and Construction....................................................................25
ARTICLE 13 MISCELLANEOUS........................................................................................31
13.1 Notices.........................................................................................31
13.2 Bulk Sales Act..................................................................................32
13.3 Entire Agreement................................................................................32
13.4 Expenses........................................................................................32
13.5 Public Announcements............................................................................32
13.6 Supplemental Confidentiality....................................................................33
13.7 Waiver..........................................................................................33
13.8 Amendment.......................................................................................34
13.9 No Third Party Beneficiary......................................................................34
13.10 No Assignment; Binding Effect...................................................................34
13.11 Headings........................................................................................34
13.12 Consent to Jurisdiction and Service of Process..................................................34
13.13 Invalid Provisions..............................................................................34
13.14 Governing Law...................................................................................34
13.15 Counterparts....................................................................................34
EXHIBITS
Exhibit A Distribution Agreement
Exhibit B Shareholders Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("AGREEMENT") dated as of November 25, 2000
is made and entered into by and between InsWeb Corporation, a Delaware
corporation ("PURCHASER"), Intuit Insurance Services, Inc., a Virginia
corporation ("SELLER"), and, as to certain provisions, Intuit Inc., a Delaware
corporation ("INTUIT"), with reference to the following:
A. Seller maintains an Internet site, the uniform resource locator ("URL")
of which is http://www.insuremarket.com (the "SITE") through which Seller acts
as an insurance premium quotation aggregator (I.E., a non-risk bearing entity
that displays premium quotes for multiple insurers using information collected
from a single questionnaire), providing insurance agency and related services
for Consumer Insurance Products in the areas of life insurance, automobile
insurance, motorcycle insurance, individual health insurance, homeowner's
insurance, disability income insurance and long-term care insurance
(collectively, the "SITE INSURANCE SERVICES").
B. Seller and Intuit desire to sell, transfer and assign to Purchaser, and
Purchaser desires to purchase and acquire from Seller and Intuit, certain of the
assets of Seller and Intuit relating to the Site and the provision of the Site
Insurance Services, and in connection therewith, Purchaser has agreed to assume
certain of the liabilities of Seller and Intuit, all on the terms and conditions
set forth herein (collectively, the "TRANSACTION").
C. On the Closing Date, Intuit and Purchaser will enter into that certain
License and Distribution Agreement (the "DISTRIBUTION AGREEMENT") in the form
attached hereto as EXHIBIT A.
D. Capitalized terms not otherwise defined herein have the meanings set
forth in SECTION 12.1.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1
SALE OF ASSETS AND CLOSING
1.1 ASSETS
(a) ASSETS TRANSFERRED. On the terms and subject to the conditions set
forth in this Agreement, Seller, and, as applicable, Intuit, will sell,
transfer, convey, assign and deliver to Purchaser, and Purchaser will purchase
and pay for, at the Closing, Seller's and, as applicable, Intuit's right, title
and interest in, to and under the following Assets used or held for use in
connection with the operation of the Site and the provision of the Site
Insurance Services (collectively the "ASSETS"):
(i) SELLER'S INTELLECTUAL PROPERTY. All Intellectual Property
described in SECTION 1.1(a)(i)(A) OF THE DISCLOSURE SCHEDULE, but excluding
therefrom any Intellectual Property or property described in SECTION
1.1(a)(i)(B) OF THE DISCLOSURE SCHEDULE (the "SELLER'S INTELLECTUAL PROPERTY");
and
(ii) SITE RELATED CONTRACTS. To the extent (A) their assignment,
delegation or subcontracting is permitted under the terms thereof or with the
consent of the other contracting party (the "COUNTERPARTY") and the consent of
the Counterparty is obtained and (B) they relate to Consumer Insurance Products,
those Contracts or rights and obligations thereunder utilized in the provision
of the Site Insurance Services described in SECTION 1.1(a)(ii) OF THE DISCLOSURE
SCHEDULE (the "SITE RELATED CONTRACTS").
(b) EXCLUDED ASSETS. Notwithstanding anything in this Agreement to the
contrary, all assets and properties of Seller and Intuit not specifically
described in Section 1.1(a), including, without limitation, cash and accounts
receivable, corporate records and customer information (collectively, the
"EXCLUDED ASSETS"), shall be excluded from and shall not constitute Assets.
1.2 LIABILITIES.
(a) ASSUMED LIABILITIES.
(i) At the Closing, in connection with the sale, transfer,
conveyance, assignment and delivery of the Assets pursuant to this Agreement
and on the terms and subject to the conditions set forth in this Agreement,
Purchaser will assume and agree to pay, perform and discharge when due the
obligations of Seller and Intuit arising from or expressly related to the
Assets (collectively, the "ASSUMED LIABILITIES"), including, without
limitation, all obligations of Seller or Intuit under the Site Related
Contracts to be performed on or after the Closing Date (but only to the
extent any site Related Contract is assigned, delegated, subcontracted or
otherwise effectively transferred (either in accordance with its terms or
with the consent of the Counterparty) from Seller or Intuit to Purchaser), as
the same may be modified by the terms and conditions of any required consents
to assignment, delegation, subcontracting or other effective transfer of such
Site Related Contracts or the portions thereof that relate to Consumer
Insurance Products.
(ii) Seller, Purchaser and, with respect to Site Related Contracts to
which Intuit is a party, Intuit shall work cooperatively and use their
commercially reasonable efforts to effect (A) an assignment, delegation,
subcontracting or other effective transfer of each Site Related Contract or the
portions thereof that relate to Consumer Insurance Products or (B) as necessary,
the termination of any Site Related Contract and replacement of any such
terminated Site Related Contract with a new contract between the Counterparty
under such Site Related Contract and Purchaser. To the extent that any Site
Related Contract or any rights and duties thereunder cannot be assigned or
delegated without the consent of the Counterparty to such Site Related Contract,
this Agreement shall not constitute an assignment or delegation or an attempted
assignment or delegation thereof if such assignment or delegation would
constitute a breach thereof. In such cases, Seller, Purchaser and, with respect
to Site Related Contracts to which Intuit is a party, Intuit shall use their
commercially reasonable efforts to obtain the consent of such Counterparty to
the assignment or delegation of such Site Related Contract or the specific
rights and duties thereunder related to Consumer Insurance Products. If such
consent shall not be obtained, Seller, Purchaser and Intuit shall cooperate in
any reasonable arrangement, such as a subcontracting or management contract
relationship, designed to provide to Purchaser the benefits intended to be
assigned to Purchaser and/or to provide to Seller and Intuit the benefits
intended to be achieved as a result of the delegation of duties under the
relevant Site
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Related Contract; provided, however, neither Seller nor Intuit shall be
required by this Agreement to take any action with respect to a Site Related
Contract that would result in a breach thereof or a default thereunder. The
obligations and duties under the Site Related Contracts assigned, delegated,
subcontracted or otherwise effectively transferred to Purchaser shall be
Assumed Liabilities. If and to the extent that such an assignment,
delegation, subcontracting or other effective transfer of a Site Related
Contract (or the portions thereof that relate to Consumer Insurance Products)
cannot be effected, Purchaser shall have no obligation pursuant to this
Agreement with respect any such Site Related Contract, and neither Seller nor
Intuit shall incur liability for breach of this Agreement with respect to any
such Site Related Contract and there shall be no reduction in the
consideration delivered to Intuit or its nominee under this Agreement with
respect to such Site Related Contract. Neither Seller nor Intuit makes any
representation or warranty that any Counterparty to any Site Related Contract
will permit any such assignment, delegation, subcontracting or other
effective transfer of any provision contained in any of the Site Related
Contracts. For purposes of the provisions of this Agreement relating to the
assignment, delegation, subcontracting or other effective transfer of any
Site Related Contract, "commercially reasonable efforts" will not be
construed as requiring Seller, Intuit or Purchaser to make a payment of money
in order to obtain the consent of such Counterparty to any such assignment,
delegation, subcontracting or other effective transfer under any Site Related
Contract other than the payments of amounts that would in the ordinary course
of business have been due and payable by Seller or Intuit under the
provisions of such Site Related Contract for performance prior to the Closing
Date.
(b) RETAINED LIABILITIES. Except for the Assumed Liabilities, Purchaser
shall not assume by virtue of this Agreement or the transactions contemplated
hereby, and shall have no liability for, any Liabilities of Seller or Intuit
of any kind, character or description whatsoever (collectively, the "RETAINED
LIABILITIES"), including, without limitation, (i) all Taxes now or hereafter
owed by Seller, Intuit or any Affiliate of Intuit, or attributable to the
Assets or the business of Seller or Intuit, relating to any period, or any
portion of any period, ending on or prior to the Closing Date, (ii) any and
all Liabilities related to current and former employees of Seller or Intuit
with respect to their employment by Seller or Intuit, and their respective
beneficiaries, including, without limitation, salaries, wages, incentive pay,
severance and vacation benefits, retirement, welfare and insurance benefits,
and any and all other benefits and perquisites, whether incurred pursuant to
an employee benefit plan of Seller or Intuit or otherwise; and (iii) all
Liabilities relating to or arising out of the Excluded Assets, all of which
Retained Liabilities shall be retained by Seller and/or Intuit.
1.3 CONSIDERATION. As consideration for the Assets and for the
performance by Seller and Intuit of this Agreement (including without
limitation the covenant of Seller and Intuit contained in SECTION 4.4),
Purchaser shall issue or cause to be issued to Intuit or Intuit's nominee,
which shall be a direct or indirect wholly owned subsidiary of Intuit, at the
Closing shares of Purchaser's common stock, par value $0.001 per share (the
"COMMON STOCK"), constituting 19.9% of Purchaser's issued and outstanding
Common Stock as of the Closing Date, but before giving effect to such
issuance (the "SHARES").
1.4 CLOSING. The Closing will take place at the offices of Pillsbury
Madison & Sutro LLP, 2550 Hanover Street, Palo Alto, California 94304, or at
such other place as Purchaser and Seller mutually agree, at 10:00 a.m. local
time, on the Closing Date. At the Closing,
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Purchaser will deliver to Intuit or Intuit's nominee (as described in SECTION
1.3) a certificate evidencing the Shares. Simultaneously, (a) Seller and, as
applicable, Intuit will assign and transfer to Purchaser title in and to the
Assets by delivery of (i) a General Assignment in a form to be mutually
agreed upon by Purchaser and Seller prior to the Closing (the "GENERAL
ASSIGNMENT"), duly executed by Seller and, as applicable, Intuit, (ii)
assignments of the Seller's Intellectual Property in form and substance
reasonably satisfactory to Purchaser, and (iii) such other good and
sufficient instruments of conveyance, assignment and transfer, in form and
substance reasonably satisfactory to Purchaser as shall be effective to
transfer the Assets to Purchaser in accordance with the terms of this
Agreement (the General Assignment and the other instruments referred to in
clauses (ii) and (iii) being collectively referred to herein as the
"ASSIGNMENT INSTRUMENTS"), and (b) Purchaser will assume from Seller and, as
applicable, Intuit, the due payment, performance and discharge of the Assumed
Liabilities by delivery of (i) an Assumption Agreement substantially in a
form to be mutually agreed upon by Purchaser and Seller prior to the Closing
(the "ASSUMPTION AGREEMENT"), duly executed by Purchaser, and (ii) such other
good and sufficient instruments of assumption, in form and substance
reasonably acceptable to Seller and, as applicable, Intuit, as shall be
effective to cause Purchaser to assume the Assumed Liabilities as and to the
extent provided in SECTION 1.2(a) (the Assumption Agreement and such other
instruments referred to in clause (ii) being collectively referred to herein
as the "ASSUMPTION INSTRUMENTS"). At the Closing, there shall also be
delivered to Seller and, as applicable, Intuit, and Purchaser the contracts,
documents and instruments required to be delivered under ARTICLES 7 AND 8.
1.5 LICENSE; FURTHER ASSURANCES; POST-CLOSING COOPERATION.
(a) Effective as of the Closing, Purchaser hereby grants Seller and, as
applicable, Intuit, a non-exclusive, non-assignable (other than to Intuit or
an Affiliate thereof), royalty-free right and license to use Seller's
Intellectual Property and the Site (the "LICENSE") for the sole purpose of
enabling Seller and Intuit to maintain, generate or retrieve consumer,
operational or other Site information and content required to comply with
regulatory obligations and audits or other similar surviving contractual
obligations of Seller or Intuit pursuant to Contracts by which either Seller
or Intuit is bound (the "CONTINUING OBLIGATIONS"); provided that the scope of
the foregoing License shall not include use of Seller's Intellectual Property
or the Site to offer or provide Site Insurance Services to the public,
directly or indirectly (the "LICENSE RESTRICTIONS"). The License shall
terminate (i) automatically upon the termination or expiration of the
Continuing Obligations, or (ii) upon written notice of the Purchaser to
Seller if Seller is in material breach of the License Restrictions and fails
to cure such breach within ten (10) days after Purchaser's written notice to
Seller of such breach including a reasonably specific description thereof.
Seller's or Intuit's exercise of its rights under the License in accordance
with this SECTION 1.5(a) shall not constitute or be treated as a breach of
the non-competition provisions of this Agreement.
(b) For a period of one year beginning on the Closing Date and subject
to any applicable Laws and policies, including, without limitation, Laws and
policies relating to privacy and customer information, each party will
provide the other, upon reasonable written request, with information relating
to the Site Insurance Services, to the extent that such information is
required by the requesting party in connection with (i) compliance with the
requirements of any Governmental or Regulatory Authority or any party to any
Site Related Contract (other than
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Seller, Purchaser or Intuit) or (ii) any actual or threatened Action or
Proceeding. Notwithstanding anything to the contrary contained in this
SECTION 1.5(b), if the parties are in an adversarial relationship in
litigation (or in connection with threatened litigation), the provision of
information in accordance with SECTION 1.5(b) shall be subject to applicable
rules relating to discovery.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth on the DISCLOSURE SCHEDULE delivered by Seller to
Purchaser at the Closing (which DISCLOSURE SCHEDULE shall be arranged in
Section numbers which correspond to the Section numbers of this ARTICLE 2,
although any information disclosed therein under any Section number shall be
deemed to be disclosed and incorporated for purposes of any other Section in
this ARTICLE 2, but only to the extent such disclosure is appropriate and
that it is reasonably apparent that such disclosure modifies such section),
Seller, and where specifically stated, Intuit, hereby represents and warrants
to Purchaser as of the date this Agreement (unless otherwise stated herein)
as set forth below:
2.1 ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Virginia, and
Intuit is a corporation duly organized, validly existing and in good standing
under the Laws of the State of Delaware. Each of Seller and Intuit has full
corporate power and authority to conduct its respective business as and to
the extent now conducted and to own, use and lease the Assets.
2.2 AUTHORITY. Each of Seller and Intuit has full corporate power and
authority to execute and deliver this Agreement and the Operative Agreements
to which it is a party, to perform its obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby, including
without limitation to sell and transfer (pursuant to this Agreement) the
Assets. The execution and delivery by Seller and Intuit of this Agreement and
the Operative Agreements to which either is a party, and the performance by
Seller and Intuit of its obligations hereunder and thereunder, have been duly
and validly authorized by all necessary corporate action, and no other
corporate action on the part of Seller or Intuit is necessary. This Agreement
has been duly and validly executed and delivered by Seller and Intuit and
constitutes, and upon the execution and delivery by Seller and Intuit of the
Operative Agreements to which each is a party, such Operative Agreements will
constitute, legal, valid and binding obligations of Seller and Intuit
enforceable against Seller or Intuit (but as to Intuit only with respect to
the provisions to which Intuit is expressly bound) in accordance with their
terms except to the extent that enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or some other laws relating to
creditors' rights generally.
2.3 NO CONFLICTS. The execution and delivery by Seller and Intuit of
this Agreement do not, and the execution and delivery by Seller and Intuit of
the Operative Agreements to which each is a party, the performance by each of
Seller and Intuit of its obligations under this Agreement and by each of
Seller and Intuit under such Operative Agreements and the consummation of the
transactions contemplated hereby and thereby will not:
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(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the certificate of incorporation or
by-laws of Seller or Intuit; or
(b) subject to obtaining the consents, approvals and actions, making the
filings and giving the notices described in SECTION 2.4 or disclosed in
SECTION 2.4 OF THE DISCLOSURE SCHEDULE, conflict with or result in a
violation or breach of any term or provision of any Law or Order applicable
to Seller or Intuit or any of the Assets; or
(c) except as set forth in SECTION 2.3 OF THE DISCLOSURE SCHEDULE,
conflict with materially, result in any material breach of, constitute a
material default (or event which with the giving of notice or lapse of time,
or both, would become a material default) under, require any material consent
under, or give to others any material rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on, any of the Assets pursuant to any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement related to the Assets or the
Assumed Liabilities to which Seller or Intuit is a party or by which any of
the Assets is bound or affected.
2.4 GOVERNMENTAL APPROVALS AND FILINGS. Except as disclosed in SECTION
2.4 OF THE DISCLOSURE SCHEDULE and as described in SECTION 4.1 hereof, no
material consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority on the part of Seller or Intuit is
required in connection with the execution, delivery and performance of this
Agreement or any of the Operative Agreements to which each is a party or the
consummation of the transactions contemplated hereby or thereby.
2.5 NO UNDISCLOSED LIABILITIES. Except as disclosed in SECTION 2.3 and
SECTION 2.5 OF THE DISCLOSURE SCHEDULE, there are no Liabilities (including,
without limitation, those for environmental or employee benefit matters)
against, relating to or affecting the Assets (other than Liabilities incurred
in the ordinary course of business consistent with past practice), which in
the aggregate are material to the condition or value of the Assets or the use
of the Seller's Intellectual Property.
2.6 TAXES. All Taxes for which Purchaser could become liable as a result
of acquiring the Assets or which could result in a Lien on or charge against
the Assets have been or will be paid by Seller for all periods prior to and
including the Closing Date. There are not, and as of the Closing will not be,
any Liens for Taxes on any of the Assets. Seller is not a "foreign person"
within the meaning of SECTION 1445(f)(3) of the Code. There are no pending
or, to the Knowledge of Seller, threatened Actions or Proceedings involving
Seller with respect to Taxes related to the Assets or the Assumed Liabilities.
2.7 LEGAL PROCEEDINGS. Except as disclosed in SECTION 2.7 OF THE
DISCLOSURE SCHEDULE, (i) there are no Actions or Proceedings pending or, to
the Knowledge of Seller, threatened, that could (A) if decided adversely to
Seller, have a Material Adverse Effect on the Assets or (B) affect the
validity, legality or enforceability of this Agreement or any of the
Operative Agreements or the consummation of the transactions contemplated
hereby or thereby and (ii) there are no Actions or Proceedings instituted by
Seller or Intuit with respect to the Assets.
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2.8 INTELLECTUAL PROPERTY. SECTION 2.8 OF THE DISCLOSURE SCHEDULE sets
forth a true and complete list of (i) all patents and patent applications and
registered copyrights and copyright applications issued or pending for
Seller's Intellectual Property and (ii) Seller's Licenses.
(a) Except as set forth in SECTION 2.8 OF THE DISCLOSURE SCHEDULE, the
Intellectual Property included in Seller's Intellectual Property other than
Patents and, to the Knowledge of Seller and Intuit, the Patents included in
Seller's Intellectual Property, does not conflict with, infringe,
misappropriate or otherwise violate the Intellectual Property or other
proprietary rights of any third party, and no Actions are pending or, to the
Knowledge of Seller or Intuit, threatened against Seller or Intuit alleging
any of the foregoing.
(b) Seller and Intuit, individually or collectively, are the exclusive
owners of the entire and unencumbered right, title and interest in and to,
the Seller's Intellectual Property, and Seller or Intuit is entitled to use
the Seller's Intellectual Property in the ordinary course of the operation of
the Site and the provision of the Site Insurance Services as presently
conducted.
(c) Except as set forth in SECTION 2.8 OF THE DISCLOSURE SCHEDULE,
Seller's Intellectual Property includes all material Intellectual Property
owned and created by Seller and used solely in the on-line provision of the
Site Insurance Services through the Site.
(d) No Actions or Proceedings are pending, or, to the Knowledge of
Seller or Intuit, threatened against Seller or Intuit based upon or
challenging or seeking to deny or restrict the use by Seller or Intuit of any
of the Seller's Intellectual Property.
(e) To the Knowledge of Seller and Intuit, no Person is engaging in any
activity that infringes the Seller's Intellectual Property. Except as set
forth in SECTION 2.8 OF THE DISCLOSURE SCHEDULE, neither Seller nor Intuit
has granted any license or other right to any third party with respect to the
Seller's Intellectual Property.
(f) Seller and Intuit have taken reasonable steps in accordance with
normal industry practice to maintain the confidentiality of the material
Trade Secrets identified as being included in Seller's Intellectual Property.
To the Knowledge of the Seller and Intuit, (i) there has been no
misappropriation of any material Trade Secrets identified as being included
in Seller's Intellectual Property by any person, and (ii) no employee,
independent contractor or agent of Seller or Intuit is in material default or
material breach of any term of any employment agreement, non-disclosure
agreement, assignment of invention agreement or similar agreement or contract
relating in any way to the protection, ownership, development, use or
transfer of Seller's Intellectual Property.
2.9 ACCURACY OF REPORTS. SECTION 2.9(A) OF THE DISCLOSURE SCHEDULE sets
forth the number of estimated term life insurance and automobile insurance
quote sessions (the "ESTIMATED HISTORICAL QUOTE SESSIONS") by specified
source or origin presented by Seller in connection with the operation of the
Site for the twelve (12) month period between August 1, 1999 and July 31,
2000 (the "PRIOR YEAR"). The actual number of term life insurance and
automobile insurance quote sessions presented by Seller in connection with
the operation of the Site for the Prior Year is no less than 85% of the
number of Estimated Historical Quote Sessions. SECTION 2.9(B) OF THE
DISCLOSURE SCHEDULE contains certain limited information Known to Seller and
Intuit regarding
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circumstances that have occurred since the date of the Estimated Historical
Quote Sessions that may affect the number of quote sessions or visits on the
Site. Except as set forth in SECTION 2.9(B) OF THE DISCLOSURE SCHEDULE, there
are no facts or circumstances known to Seller or Intuit which would render
the Estimated Historical Quote Sessions inaccurate in any material respect.
Purchaser acknowledges and agrees that the Estimated Historical Quote
Sessions are not intended to be and do not constitute a forecast or
prediction by Seller or Intuit of future quote sessions or traffic levels
related to Consumer Insurance Products.
2.10 MATERIAL CONTRACTS. SECTION 2.10 OF THE DISCLOSURE SCHEDULE lists
each Contract of Seller and Intuit that is either a distribution or traffic
agreement material to the operation of the Site or the provision of Site
Insurance Services or a material contract or agreement which will constitute
a Continuing Obligation.
2.11 BROKERS. No broker, finder, investment banker or advisor is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement or the Operative
Agreements based upon arrangements made by or on behalf of Seller or Intuit.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as set forth on the DISCLOSURE SCHEDULE delivered by Purchaser to
Seller at the Closing (which Disclosure Schedule shall be arranged in Section
numbers which correspond to the Section numbers of this ARTICLE 3, although
any information disclosed therein under any Section number shall be deemed to
be disclosed and incorporated for purposes of any other Section in this
ARTICLE 3, but only to the extent such disclosure is appropriate and that it
is reasonably apparent that such disclosure modifies such Section), Purchaser
hereby represents and warrants to Seller as of the date this Agreement
(unless otherwise stated herein) as set forth below:
3.1 ORGANIZATION. Purchaser is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Delaware.
Purchaser has full corporate power and authority to conduct its business as
and to the extent now conducted.
3.2 AUTHORITY. Purchaser has full corporate power and authority to enter
into this Agreement and the Operative Agreements to which it is a party and
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by
Purchaser of this Agreement and the Operative Agreements to which it is a
party, and the performance by Purchaser of its obligations hereunder and
thereunder, have been duly and validly authorized by the Board of Directors
of Purchaser, and no other corporate action on the part of Purchaser or its
stockholders is necessary. This Agreement has been duly and validly executed
and delivered by Purchaser and constitutes, and upon the execution and
delivery by Purchaser of the Operative Agreements to which it is a party,
such Operative Agreements will constitute, legal, valid and binding
obligations of Purchaser enforceable against Purchaser in accordance with
their terms except to the extent that enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or some other laws
relating to creditors' rights generally.
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3.3 NO CONFLICTS. The execution and delivery by Purchaser of this
Agreement and the Operative Agreements, the performance by Purchaser of its
obligations under this Agreement and such Operative Agreements and the
consummation of the transactions contemplated hereby and thereby will not:
(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the certificate of incorporation or
by-laws of Purchaser; or
(b) subject to obtaining the consents, approvals and actions, making the
filings and giving the notices described in SECTION 3.4 or disclosed in
SECTION 3.4 OF THE DISCLOSURE SCHEDULE hereto, conflict with or result in a
violation or breach of any term or provision of any Law or Order applicable
to Purchaser or the Shares.
(c) except as set forth in SECTION 3.3 OF THE DISCLOSURE SCHEDULE,
conflict with materially, result in any material breach of, constitute a
material default (or event which with the giving of notice or lapse of time,
or both, would become a material default) under, require any material consent
under, or give to others any material rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, pursuant to any
note, bond, mortgage or indenture, contract, agreement, lease, sublease,
license, permit, franchise or other instrument or arrangement to which
Purchaser is a party.
3.4 GOVERNMENTAL APPROVALS AND FILINGS. Except as contemplated hereby or
as disclosed in SECTION 3.4 OF THE DISCLOSURE SCHEDULE and as described in
SECTION 5.1 hereto, no material consent, approval or action of, filing with
or notice to any Governmental or Regulatory Authority on the part of
Purchaser is required in connection with the execution, delivery and
performance of this Agreement or the Operative Agreements to which it is a
party or the consummation of the transactions contemplated hereby or thereby.
3.5 CAPITAL STRUCTURE. The authorized capital stock of Purchaser
consists of 150,000,000 shares of Common Stock and 5,000,000 shares of
preferred stock, $0.001 par value (the "PURCHASER PREFERRED STOCK"). At the
close of business on November 13, 2000: (i) 35,272,654 shares of Common Stock
were issued and outstanding; (ii) up to 7,920,170 shares of Common Stock were
reserved (or available) for issuance upon the exercise of options granted (or
available for grant) by Purchaser under its 1997 and Senior Executive Stock
Option Plans collectively; and (iii) up to 750,000 shares of Common Stock
were reserved for issuance under Purchaser's 1999 Employee Stock Purchase
Plan. No shares of Purchaser Preferred Stock are outstanding.
3.6 SEC DOCUMENTS. Purchaser has filed all reports required to be filed
by it with the SEC since September 30, 2000 and Purchaser has made available
to Seller true, correct and complete copies of Purchaser's Annual Report on
Form 10-K for the year ended December 31, 1999 and Purchaser's Quarterly
Report on Form 10-Q for the quarter ended September 30, 2000 (collectively,
the "PURCHASER SEC DOCUMENTS"). As of their respective dates, each Purchaser
SEC Document complied in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the "1934
ACT"), and none of the Purchaser SEC Documents, as of their respective dates,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
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statements made therein, in light of the circumstances under which they were
made, not misleading. Each of the audited consolidated financial statements
(including, in each case, any notes thereto) contained in the Purchaser SEC
Documents was prepared in accordance with generally accepted accounting
principles, consistently applied ("GAAP"). Each of the consolidated financial
statements (including, in each case, any notes thereto) contained in the
Purchaser SEC Documents fairly presented in all material respects the
consolidated financial position, results of operations and changes in
stockholders' equity and cash flows of Purchaser and its consolidated
subsidiaries as at the respective dates thereof and for the respective
periods indicated therein (subject, in the case of unaudited statements, to
(i) normal year-end adjustments which are not expected, individually or in
the aggregate, to be material and (ii) the absence of all GAAP notes to such
financial statements).
3.7 SHARES OF COMMON STOCK. The Shares to be issued and delivered to
Intuit or Intuit's nominee (as determined in SECTION 1.3) at the Closing in
accordance with this Agreement, when so issued and delivered, will be duly
authorized, validly issued, fully paid and nonassessable and not subject to
preemptive rights created by statute, Purchaser's certificate of
incorporation or bylaws or any agreement to which Purchaser is a party.
3.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30, 2000,
except as contemplated by or disclosed pursuant to this Agreement, any
Operative Agreement or any Purchaser SEC Document, (a) Purchaser has
conducted its businesses only in the ordinary course and in a manner
consistent with past practice and (b) there has not been any event or events
(whether or not covered by insurance), individually or in the aggregate,
having a material adverse effect on the business, assets or results of
operations of Purchaser.
3.9 BROKERS. Except for Fox-Pitt, Kelton Inc. ("PURCHASER'S BROKER"), no
broker, finder, investment banker or advisor is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement or the Operative Agreements based upon
arrangements made by or on behalf of Purchaser. Purchaser is solely
responsible for the fees and expenses of Purchaser's Broker.
ARTICLE 4
COVENANTS OF SELLER
Seller covenants and agrees with Purchaser that, at all times from and
after the date hereof until the Closing and, with respect to any covenant or
agreement by its terms to be performed in whole or in part after the Closing,
for the period specified in this ARTICLE 4 or, if no period is specified in
this ARTICLE 4, the period specified in ARTICLE 9, Seller will comply with
all covenants and provisions of this ARTICLE 4, except to the extent
Purchaser may otherwise consent in writing.
4.1 HSR FILINGS. Seller and its Affiliates will (i) take promptly all
actions and pay all fees necessary to make the filings required of Seller or
its Affiliates under the HSR Act as the party acquiring Purchaser's Shares,
(ii) comply at the earliest practicable date with any request for additional
information received by Seller or its Affiliates from the Federal Trade
Commission or the Antitrust Division of the Department of Justice pursuant to
the HSR Act and (iii) reasonably cooperate with Purchaser in connection with
Purchaser's and/or its Affiliates'
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filing under the HSR Act and in connection with resolving any investigation
or other inquiry concerning the transactions contemplated by this Agreement
commenced by either the Federal Trade Commission or the Antitrust Division of
the Department of Justice or state attorneys general. Notwithstanding the
foregoing, nothing in this SECTION 4.1 shall require the Seller to agree to
(x) the imposition of conditions, (y) the requirement of divestiture or (z)
the requirement of payment of money by Seller to a third party in exchange
for any consent or approval.
4.2 INVESTIGATION BY PURCHASER. From the date of this Agreement to the
Closing Date, Seller will (a) provide Purchaser and its officers, directors,
employees, agents, counsel, accountants, financial advisors, consultants and
other representatives (collectively, "REPRESENTATIVES") with reasonable
access, upon reasonable prior written notice and during normal business
hours, to the officers and employees of Seller who are primarily responsible
for the operation of the Site and the provision of the Site Insurance
Services, and (b) subject to obtaining any third-party consents required in
connection with the disclosure of confidential information, furnish Purchaser
and its Representatives with such information and data concerning the Assets
as Purchaser reasonably may request in connection with its investigation of
the Assets.
4.3 CONDUCT OF BUSINESS. From the date of this Agreement to the Closing
Date, Seller will use commercially reasonable efforts to operate the Site and
provide the Site Insurance Services in the ordinary course consistent with
past practice. Without limiting the generality of the foregoing, Seller
shall: (i) continue its advertising and promotional activities in accordance
with past practice; (ii) use commercially reasonable efforts to preserve its
current relationships with Persons with which it has significant business
relationships; and (iii) not engage in any practice, take any action, fail to
take any action or enter into any transaction which could cause any
representation or warranty of Seller to be untrue or result in a breach of
any covenant made by Seller in this Agreement. Each of Seller and Intuit
covenants and agrees that, prior to the Closing, without the prior written
consent of Purchaser, Seller will not (x) permit or allow any of the Assets
to be subjected to any Encumbrance that will not be released prior to Closing
or (y) (i) amend, modify or, subject to compliance by Seller and Intuit with
SECTION 6.1, consent to the termination of any Site Related Contract other
than pursuant to the terms thereof and in the ordinary course of business or
(ii) without limiting Purchaser's rights under SECTION 4.6(c), enter into any
new material distribution agreement relating to Consumer Insurance Products
other than in the ordinary course of business. Notwithstanding the foregoing,
Seller makes no representation or warranty as to the actions of any third
parties (including employees) resulting from any disclosure or announcement
of the Transaction or the consequences of any such third-party actions on the
operation of the Site or the provision of Site Insurance Services.
4.4 NONCOMPETITION.
(a) CONSUMER CHANNELS. For a period of five (5) years from the Closing
Date, neither Seller nor Intuit shall (i) perform the services of an
insurance premium quote aggregator (I.E., a non-risk bearing entity that
displays premium quotes from multiple insurers using information collected by
such aggregator from a single questionnaire) for the purpose of offering
Consumer Insurance Products in Consumer Channels to individuals resident in
the United States; or (ii) use its employees to actively solicit, take or
process applications for Consumer Insurance Products promoted in Consumer
Channels to individuals resident in the United States (E.G., establish an
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Intuit call center to solicit, take or process applications for Consumer
Insurance Products originating from Quicken.com's insurance center).
(b) BUSINESS CHANNELS. For a period of two (2) years from the Closing
Date, neither Seller nor Intuit shall perform the services of an insurance
premium quote aggregator (I.E., a non-risk bearing entity that displays
premium quotes for multiple insurers using information collected by such
aggregator from a single questionnaire) for the purpose of offering personal
lines automobile insurance in Business Channels to individuals resident in
the United States.
(c) PERMITTED ACTIVITIES. Subject to any exclusivity provisions set forth
in the Distribution Agreement, nothing in this SECTION 4.4 restricts or limits
Seller or Intuit from:
(i) advertising, promoting or linking to any company or companies
that display or offer comparative premium quotes from multiple companies for
Consumer Insurance Products;
(ii) advertising, promoting or linking to multiple companies that
display or offer premium quotes for any Consumer Insurance Products;
(iii) other than with respect to personal lines automobile
insurance in accordance with SECTION 4.4(b), advertising or promoting
Consumer Insurance Products to businesses or professional advisors of
individuals and/or businesses;
(iv) advertising, promoting or offering fixed or variable
annuities; or
(v) being licensed as an insurance agency, broker or producer.
(d) INJUNCTIVE RELIEF. The parties hereto acknowledge and agree that any
remedy at Law for any breach of the provisions of this SECTION 4.4 would be
inadequate, and Seller and Intuit hereby agree that Purchaser may seek
injunctive or other equitable relief, without the necessity of actual
monetary loss being proved, in order that the breach or threatened breach of
such provision may be effectively restrained.
(e) TERMINATION OF NON-COMPETITION PROVISIONS. If the balance sheet
included in any financial information contained in any public disclosure of
Purchaser (including, but not limited to, earnings releases, Form 10-Q or
Form 10-K filings with the SEC) (a "PUBLIC ANNOUNCEMENT") indicates that
Purchaser has either (i) less than $8,000,000 in total cash, cash equivalents
and investments in marketable securities or (ii) a current ratio (I.E., the
quotient produced by dividing Purchaser's current assets by Purchaser's
current liabilities) of less than 0.85 (each of which is referred to herein
as a "FINANCIAL DEFICIENCY"), then Seller and Intuit shall have the right to
terminate the provisions of SECTION 4.4 in their entirety pursuant to the
following terms and conditions:
(i) If a Financial Deficiency occurs, then Purchaser shall
deliver to Seller and Intuit within ten (10) days after each month beginning
after a Public Announcement disclosing a Financial Deficiency a monthly
balance sheet of Purchaser prepared in accordance with GAAP (except for the
omission of footnotes and customary year-end adjustments) and certified by
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Purchaser's Chief Financial Officer or the Person who signs SEC filings on
behalf of Purchaser (the "INTERIM BALANCE SHEET").
(ii) The right of Seller and Intuit to terminate SECTION 4.4 shall
be exercisable if, at the expiration of the sixty (60) day period that
commences on the date of the Public Announcement that discloses the Financial
Deficiency (such sixty (60)-day period being referred to herein as the "CURE
PERIOD"), the most recent Interim Balance Sheet discloses the Financial
Deficiency that was disclosed in the earlier Public Announcement.
(iii) If, during the Cure Period, any Interim Balance Sheet does
not disclose the Financial Deficiency that was disclosed in the earlier
Public Announcement, Seller and Intuit shall have no right to terminate
SECTION 4.4 of this Agreement and Isotope may cease furnishing Interim
Balance Sheets to Seller and Intuit unless and until a subsequent Public
Announcement discloses a Financial Deficiency, in which case the Cure Period
as to such subsequent Public Announcement will begin. Purchaser's Interim
Balance Sheet shall be deemed to be a Public Announcement for the purposes of
this SECTION 4.4(e).
4.5 FULFILLMENT OF CONDITIONS. Seller shall execute and deliver at the
Closing each Operative Agreement that Seller is required hereby to execute
and deliver as a condition to the Closing, shall take all commercially
reasonable steps necessary or desirable and proceed diligently and in good
faith to satisfy each other condition to the obligations of Purchaser
contained in this Agreement and shall not take or fail to take any action
that could reasonably be expected to result in the nonfulfillment of any such
condition.
4.6 DELIVERY OF DISCLOSURE SCHEDULE; ACCEPTANCE. Purchaser acknowledges
that the DISCLOSURE SCHEDULE delivered by Seller and Intuit contemporaneously
with the execution and delivery of this Agreement may need to be amended,
restated or updated by Seller and Intuit subsequent hereto. Accordingly, the
parties agree as follows:
(a) Seller and Intuit shall have the right to amend, restate and update
the Disclosure Schedule up to the Closing;
(b) Prior to the Closing but in no event later than thirty (30) days
after the date of the Agreement, Seller shall deliver to Purchaser a complete
copy of the proposed final Disclosure Schedule noting all changes from the
Disclosure Schedule provided upon execution of the Agreement;
(c) Purchaser shall accept such final Disclosure Schedule, in which case
it shall become part of this Agreement as if in existence on the date of this
Agreement and disclosures made in such amended Disclosure Schedule shall be
made as if they had been disclosed in the Disclosure Schedule as of the date
of this Agreement. Notwithstanding the foregoing, if such amended, restated
or updated Disclosure Schedule sets forth new information or deletes
previously disclosed information which is material and adverse to Purchaser,
Purchaser may elect to terminate this Agreement without liability hereunder
by giving written notice of termination to Seller stating specifically the
information (the "MATERIAL INFORMATION") added to or deleted from the
Disclosure Schedule that is material and adverse to Purchaser (the
"TERMINATION NOTICE"). If the Material Information relates solely to a Site
Related Contract, Seller shall have
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ten (10) days after receipt of a Termination Notice to decide whether to
delete from the Disclosure Schedule or add to the Disclosure Schedule such
Material Information. If Seller adds to or deletes from the Disclosure
Schedule such Material Information within such ten (10) day period, Purchaser
shall have no right to terminate this Agreement under this SECTION 4.6. If
Seller does not add or delete such Material Information within such ten (10)
day period, Purchaser shall have the right to terminate this Agreement under
this SECTION 4.6.
4.7 NOTICE OF DEVELOPMENTS. Prior to the Closing, Seller shall promptly
notify Purchaser in writing of (a) all events, circumstances, facts and
occurrences arising subsequent to the date of this Agreement which could
result in any material breach of a representation or warranty or covenant of
Seller or Intuit in this Agreement or which could have the effect of making
any representation or warranty of Seller or Intuit in this Agreement untrue
or incorrect in any material respect and (b) all other material developments
affecting the Assets, the Assumed Liabilities, the operation of the Site or
the provision of the Site Insurance Services as the same relates to the
transfer of the Assets and Assumed Liabilities contemplated by this Agreement.
4.8 NO SOLICITATION OR NEGOTIATION. Each of Seller and Intuit agrees
that between the date of this Agreement and the earlier of (x) the Closing or
(y) the termination of this Agreement in accordance with its terms, neither
Seller nor Intuit nor any of their respective Affiliates, officers,
directors, representatives or agents will (a) solicit, initiate, encourage or
accept any other proposals or offers from any Person other than Purchaser (i)
relating to any acquisition or purchase of all or any portion of the capital
stock of Seller or the Assets of Seller, (ii) to enter into any business
combination with Seller (E.G., a merger or similar corporate reorganization)
or (iii) to enter into any other extraordinary business transaction (other
than the termination or modification of a Site Related Contract) that has a
material and adverse effect on the Assets, or (b) except for discussions with
and among employees of Seller or Intuit, participate in any discussions,
negotiations or other communications regarding, or furnish to any Person
other than Purchaser any information with respect to, or otherwise cooperate
in any way, assist or participate in, facilitate or encourage any effort or
attempt by any Person other than Purchaser to seek to do any of the matters
described in clause (a) in this SECTION 4.8. Seller and Intuit immediately
shall cease and cause to be terminated all existing discussions, negotiations
and other communications with any Persons other than Purchaser with respect
to any of the matters described in clause (a) in this SECTION 4.8. Seller
shall notify Purchaser promptly if any such proposal or offer, or any inquiry
or other contact with any Person with respect to any such proposal, offer or
inquiry, is made.
4.9 BREAK-UP FEE. In the event that, notwithstanding the execution of
this Agreement, Seller or Intuit (a) enters into any agreement with a Person
other than Purchaser (i) relating to any acquisition or purchase of all or
any portion of the capital stock of Seller or the Assets or (ii) relating to
any business combination (e.g., a merger or similar corporate reorganization)
with Seller, or (b) enters into any other extraordinary business transaction
(other than the termination or modification of a Site Related Contract) with
a Person other than Purchaser that has a material and adverse effect on the
Assets, then Purchaser may exercise its right to terminate this Agreement
under SECTION 11.1(e)(iv) on the grounds that Seller has breached the
covenants contained in SECTION 4.8 and make written demand on Seller for
Payment of, and Seller shall promptly pay to Purchaser, a fee of $5,000,000
(the "BREAK-UP FEE"). The payment of the Break-Up Fee shall (i) constitute
liquidated damages with respect to the matters
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described in this SECTION 4.9 and (ii) be Purchaser's sole remedy against
Seller or Intuit under this Agreement, and Purchaser shall have no right to
pursue any remedies, at Law or in equity, against Seller, Intuit or any third
party with respect to this Agreement except as pursuit of legal action may be
necessary to collect the Break-Up Fee. The amount of such Break-Up Fee shall
not constitute a standard for measuring the extent of actual damages for any
other purpose.
4.10 SUBSEQUENT TRANSFERS OF INTELLECTUAL PROPERTY. Seller and Intuit
shall use their best efforts to transfer to Purchaser any Intellectual
Property used solely in the provision of the Site Insurance Services and not
described in SECTION 2.8 OF THE DISCLOSURE SCHEDULE, which is required to be
so transferred in order to make the representation and warranty set forth in
SECTION 2.8 true and accurate and any such Intellectual Property so
transferred shall be treated as Seller's Intellectual Property for all
purposes of this Agreement.
ARTICLE 5
COVENANTS OF PURCHASER
Purchaser covenants and agrees with Seller that, at all times from and
after the date hereof until the Closing and, with respect to any covenant or
agreement by its terms to be performed in whole or in part after the Closing,
for the period specified in this ARTICLE 5 or, if no period is specified in
this ARTICLE 5, the period specified in ARTICLE 9, Purchaser will comply with
all covenants and provisions of this ARTICLE 5, except to the extent Seller
may otherwise consent in writing.
5.1 HSR FILINGS. Purchaser and its Affiliates will (i) take promptly all
actions and pay all fees necessary to make the filings required of Purchaser
or its Affiliates under the HSR Act as the party acquiring the Assets, (ii)
comply at the earliest practicable date with any request for additional
information received by Purchaser or its Affiliates from the Federal Trade
Commission or the Antitrust Division of the Department of Justice pursuant to
the HSR Act and (iii) reasonably cooperate with Seller in connection with
Seller's filing under the HSR Act and in connection with resolving any
investigation or other regulatory inquiry concerning the transactions
contemplated by this Agreement commenced by either the Federal Trade
Commission or the Antitrust Division of the Department of Justice or state
attorneys general. Notwithstanding the foregoing, nothing in this SECTION 5.1
shall require Purchaser to agree to (x) the imposition of conditions, (y) the
requirement of divestiture or (z) the requirement of payment of money by
Purchaser to a third party in exchange for any consent or approval.
5.2 FULFILLMENT OF CONDITIONS. Purchaser will execute and deliver at the
Closing each Operative Agreement that Purchaser is hereby required to execute
and deliver as a condition to the Closing, will take all commercially
reasonable steps necessary or desirable and proceed diligently and in good
faith to satisfy each other condition to the obligations of Seller contained
in this Agreement and will not take or fail to take any action that could
reasonably be expected to result in the nonfulfillment of any such condition.
5.3 INSURANCE CARRIER APPOINTMENTS. For a period of five (5) years from
and after the Closing (and for such period of time as the Distribution
Agreement continues in effect, if longer), Purchaser will cooperate with
Seller and use commercially reasonable efforts to obtain such insurance
carrier appointments as Seller reasonably determines to be necessary to
enable
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Seller to maintain its existing insurance licenses in all of the
jurisdictions in which it maintains such licenses as of the Closing Date.
5.4 TRANSFER TAXES. Purchaser shall pay all Transfer Taxes, filing fees
and similar taxes, fees, charges and expenses required to be paid in
connection with the sale of the Assets and any other transactions
contemplated by this Agreement.
5.5 NOTICE OF DEVELOPMENTS. Prior to the Closing, Purchaser shall
promptly notify Seller in writing of all events, circumstances, facts and
occurrences arising subsequent to the date of this Agreement which could
result in any material breach of a representation or warranty or covenant of
Purchaser in this Agreement or which could have the effect of making any
representation or warranty of Purchaser in this Agreement untrue or incorrect
in any material respect and which materially and adversely affect Purchaser's
ability to consummate the Transaction.
ARTICLE 6
MUTUAL COOPERATION COVENANTS
6.1 CONSENTS AND APPROVALS. From and after the date of this Agreement,
Seller, Intuit and Purchaser shall work cooperatively to identify all
consents and approvals that may be required in connection with the sale or
transfer of the Assets and the delegation or subcontracting of obligations
under the Site Related Contracts contemplated herein and the performance by
Purchaser, Seller and Intuit of their respective obligations under this
Agreement and the Operative Agreements. Purchaser, Seller and Intuit shall,
in good faith, use their commercially reasonable efforts to obtain all such
consents and approvals prior to the Closing; provided, however, that (i)
neither Seller nor Intuit shall be obligated to pay money in connection with
obtaining such consent or approval and (ii) if a Counterparty to a Site
Related Contract requires the payment of money or imposes any other
unreasonable conditions on Seller or Intuit with respect to a Site Related
Contract, Seller and Intuit shall have the right to terminate any such Site
Related Contract. To the extent such consents and approvals cannot be
obtained prior to the Closing, Purchaser, Seller and Intuit shall use their
commercially reasonable efforts for a reasonable period of time following the
Closing to obtain such consents and approvals as Purchaser, Seller and Intuit
mutually agree to be reasonably necessary to enable Seller to transfer the
Assets and the Assumed Liabilities, as contemplated by this Agreement.
6.2 DEVELOPMENT OF TRANSITION PLANS. From the date of this Agreement to
the Closing Date, Seller, Intuit and Purchaser will work cooperatively and in
good faith to develop mutually acceptable transition plans for transitioning
from Seller to Purchaser (i) Seller's and Intuit's distribution and traffic
relationships under the Site Related Contracts and (ii) contractual and legal
compliance requirements arising from the transactions contemplated herein. In
addition, it is contemplated that Purchaser will provide such assistance to
Seller and Intuit as may be reasonably necessary to resolve contractual or
other similar issues that may arise with insurance carriers, Persons with
whom Seller or Intuit has distribution or traffic relationships and others as
a result of the transactions contemplated by this Agreement. To the extent
Purchaser may incur reasonable and necessary expenses in the resolution of
any such matters, Seller will reimburse Purchaser for such expenses; provided
that Seller shall have had an opportunity to review and approve any such
expenses or payments in advance of their having been incurred.
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6.3 EXECUTION OF TRANSITION PLANS. Subject to compliance with applicable
Law, Purchaser, Seller and Intuit shall each commence implementation of their
respective transition plans described in SECTION 6.2 as soon as reasonably
practicable after the date of this Agreement. Following the Closing,
Purchaser, Seller and Intuit shall use their commercially reasonable efforts
and work cooperatively to complete the implementation of the transition plans
described in SECTION 6.2.
6.4 EMPLOYEE MATTERS. During the 15-day period after the date of this
Agreement, Purchaser shall not, directly or indirectly, encourage or solicit,
or induce others to encourage or solicit, the employees of Seller to leave
Seller's employ. After such 15-day period, Seller will identify its employees
who will continue to remain employed with Intuit or Seller and furnish to
Purchaser a list of such employees (the "UNAVAILABLE EMPLOYEES"). Any
employees of Seller not named as an Unavailable Employee shall be an
"AVAILABLE EMPLOYEE." Purchaser may, in its sole discretion, after the
expiration of the 15-day period referred to in the first sentence of this
SECTION 6.4, offer employment to any Available Employee on such terms and
conditions as Purchaser may determine in its sole discretion. Seller agrees
to provide Purchaser and its agents with reasonable and practicable
assistance in connection with the foregoing, including, without limitation,
providing access to the Available Employees (but not to their personnel
files). Notwithstanding the foregoing, nothing contained in this Agreement
shall require Purchaser to extend an offer of employment to any employee of
Seller.
6.5 PATENT LICENSE AGREEMENT. Intuit and Purchaser shall execute and
deliver at the Closing a Patent License Agreement containing customary terms
and conditions mutually agreed upon by Intuit and Purchaser whereby Purchaser
grants to Intuit and its Affiliates a non-exclusive, perpetual, worldwide,
royalty-free right and license under the Licensed Patent Applications and the
Licensed Patents to make, have made, use, sell, offer for sale, lease and
otherwise dispose of Licensed Products.
(a) As used in this Agreement:
(i) "Licensed Patent Applications" shall mean (A) the United
States Patent Application System For Online Quoting And binding Of Insurance
Policies identified in SECTION 2.8 OF THE DISCLOSURE SCHEDULE; (B) any and
all continuations, divisions, and continuations-in-part of such Application,
whether related to such Application directly or through one or more
intervening applications; (C) any foreign application for patent or utility
model claiming priority in whole or in part from any of the applications
identified in clauses (A) and (B) above; and (D) any and all continuations,
divisions, and continuations-in-part of any of the applications identified in
clause (C) above, whether related to such applications directly or through
one or more intervening applications.
(ii) "Licensed Patents" shall mean (A) any and all patents and
utility models issuing on or registered from any of the Licensed Patent
Applications; and (B) any and all reexaminations, reissues, additions, or
extensions of any of the patents or utility models identified in clause (A)
above.
(iii) "Licensed Product", singular or plural, shall mean any module
for products or services (other than property and casualty Consumer Insurance
Products (E.G.,
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personal lines automobile and homeowners insurance) wherein the manufacture,
use, offer for sale, sale or importation of the module by Intuit or its
Affiliates would, but for the rights and license granted by Purchaser
pursuant to this SECTION 6.5, constitute an infringement of a valid and
enforceable claim of a subsisting Licensed Patent.
ARTICLE 7
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder to purchase the Assets and to
assume and to pay, perform and discharge the Assumed Liabilities are subject
to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by
Purchaser in its sole discretion):
7.1 REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by Seller and Intuit in this Agreement (as qualified by the
DISCLOSURE SCHEDULE) shall have been true and correct when made and shall be
true and correct in all material respects on and as of the Closing Date as
though such representation or warranty was made on and as of the Closing Date
and Purchaser shall have received a certificate of Seller and Intuit to such
effect signed by duly authorized officers thereof.
7.2 PERFORMANCE. Each of Seller and Intuit shall have performed and
complied with, in all material respects, each agreement, covenant and
obligation required by this Agreement to be so performed or complied with by
Seller or Intuit at or before the Closing and Purchaser shall have received a
certificate of Seller and Intuit to such effect signed by duly authorized
officers thereof.
7.3 ORDERS AND LAWS; HSR ACT. There shall not be in effect on the
Closing Date any Order or Law restraining, enjoining or otherwise prohibiting
or making illegal the consummation of any of the transactions contemplated by
this Agreement or any of the Operative Agreements. Any waiting period (and
any extension thereof) under the HSR Act applicable to the purchase of the
Assets or the issuance of the Shares contemplated hereby shall have expired
or shall have been terminated.
7.4 DELIVERIES. Seller shall have delivered to Purchaser the
General Assignment and the other Assignment Instruments.
7.5 NO MATERIAL ADVERSE EFFECT. There shall have been no Material
Adverse Effect on the Assets.
7.6 NO PROCEEDING OR LITIGATION. No Action shall have been commenced or
threatened by or before any Governmental or Regulatory Authority against
Seller, Intuit or Purchaser, seeking to restrain or materially and adversely
alter the transactions contemplated hereby which is likely to render it
impossible or unlawful to consummate the transactions contemplated by this
Agreement or which could have a Material Adverse Effect on the Assets;
provided, however, that the provisions of this SECTION 7.6 shall not apply if
Purchaser has solicited or encouraged any such Action.
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7.7 RESOLUTIONS OF SELLER. Purchaser shall have received a true and
complete copy, certified by the Secretary or an Assistant Secretary of each
of Seller and Intuit, of the resolutions duly and validly adopted by the
respective Boards of Directors of Seller and Intuit evidencing its
authorization of the execution and delivery of this Agreement and the
Operative Agreements and the consummation of the transactions contemplated
hereby and thereby.
7.8 INCUMBENCY CERTIFICATES. Purchaser shall have received a certificate
of the Secretary or an Assistant Secretary of each of Seller and Intuit
certifying the names and signatures of the officers of Seller and Intuit
authorized to sign this Agreement and the Operative Agreements and the other
documents to be delivered hereunder and thereunder.
7.9 DISTRIBUTION AGREEMENT. Intuit shall have delivered to Purchaser a
Distribution Agreement in the form attached hereto as EXHIBIT A executed by
Intuit.
7.10 SHAREHOLDERS AGREEMENT. Intuit and Seller shall have delivered the
Fourth Amended and Restated Investor Rights Agreement (the "SHAREHOLDERS
AGREEMENT") in the form attached hereto as EXHIBIT B executed by each of
Intuit and Seller.
ARTICLE 8
CONDITIONS TO OBLIGATIONS OF SELLER AND INTUIT
The obligations of Seller and Intuit hereunder to sell the Assets are
subject to the fulfillment, at or before the Closing, of each of the
following conditions (all or any of which may be waived in whole or in part
by Seller and Intuit in their sole discretion):
8.1 REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by Purchaser in this Agreement shall be true and correct in
all material respects on and as of the Closing Date as though such
representation or warranty was made on and as of the Closing Date, and Seller
and Intuit shall have received a certificate of Purchaser to such effect
signed by duly authorized officers thereof.
8.2 PERFORMANCE. Purchaser shall have performed and complied with, in
all material respects, each agreement, covenant and obligation required by
this Agreement to be so performed or complied with by Purchaser at or before
the Closing, and Seller and Intuit shall have received a certificate of
Purchaser to such effect signed by duly authorized officers thereof.
8.3 ORDERS AND LAWS; HSR ACT. There shall not be in effect on the
Closing Date any Order or Law that became effective after the date of this
Agreement restraining, enjoining or otherwise prohibiting or making illegal
the consummation of any of the transactions contemplated by this Agreement or
any of the Operative Agreements. Any waiting period (and any extension
thereof) under the HSR Act applicable to the purchase of the Assets or the
issuance of the Shares contemplated hereby shall have expired or shall have
been terminated.
8.4 DISTRIBUTION AGREEMENT. Purchaser shall have delivered to Intuit a
Distribution Agreement in the form attached hereto as EXHIBIT A executed by
Purchaser.
8.5 SHAREHOLDERS AGREEMENT. Purchaser shall deliver the Shareholders
Agreement in the form attached hereto as EXHIBIT B executed by the following
parties: (i) Purchaser; (ii) each
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of the Founders (as defined in such Agreement); and (iii) Holders (other than
Founders) holding a majority-in-interest of the Registrable Securities held
by all Holders (other than Founders) as such terms are defined in, and
contemplated by, Purchaser's Third Amended and Restated Investor Rights
Agreement made and entered into as of March 31, 1999.
8.6 NO PROCEEDING OR LITIGATION. No Action shall have been commenced or
threatened by or before any Governmental or Regulatory Authority against
Seller, Intuit or Purchaser, seeking to restrain or materially and adversely
alter the transactions contemplated hereby which is likely to render it
impossible or unlawful to consummate the transactions contemplated by this
Agreement; provided, however, that the provisions of this SECTION 8.6 shall
not apply if Seller or Intuit has solicited or encouraged any such Action.
8.7 RESOLUTIONS OF SELLER. Seller shall have received a true and
complete copy, certified by the Secretary or an Assistant Secretary of
Purchaser, of the resolutions duly and validly adopted by the Board of
Directors of Purchaser evidencing its authorization of the execution and
delivery of this Agreement and the Operative Agreements and the consummation
of the transactions contemplated hereby and thereby.
8.8 INCUMBENCY CERTIFICATES. Seller shall have received a certificate of
the Secretary or an Assistant Secretary of Purchaser certifying the names and
signatures of the officers of Purchaser authorized to sign this Agreement and
the Operative Agreements and the other documents to be delivered hereunder
and thereunder.
8.9 DELIVERIES. Purchaser shall have delivered to Seller the Assumption
Agreement, the other Assumption Instruments and share certificates evidencing
the ownership of the Shares by Intuit or Intuit's nominee (as described in
SECTION 1.3).
8.10 NO MATERIAL ADVERSE EFFECT. There shall not have occurred a
Material Adverse Effect with respect to Purchaser.
ARTICLE 9
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
The representations and warranties of Seller, Intuit and Purchaser
contained in this Agreement will survive the Closing for a period of one (1)
year with respect to all representations and warranties, except the
representations and warranties set forth in SECTION 2.8, which shall survive
Closing for a period of three (3) years. Each covenant or agreement shall
survive the Closing until ninety (90) days following the last date on which
such covenant or agreement is to be performed or, if no such date is
specified, then for one (1) year, except that (i) a Party's obligations to
indemnify the other Party with respect to Assumed Liabilities (in the case of
Purchaser) or Retained Liabilities (in the case of Seller and Intuit) shall
continue until the expiration, termination or other discharge of the Assumed
Liabilities or the Retained Liabilities, as applicable, and (ii) any covenant
or agreement that would otherwise terminate in accordance with this sentence
will continue to survive if a Claim Notice or Indemnity Notice (as
applicable) shall have been timely given under ARTICLE 10 on or prior to such
termination date until the related
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claim for indemnification has been satisfied or otherwise resolved as
provided in ARTICLE 10.
ARTICLE 10
INDEMNIFICATION
10.1 INDEMNIFICATION.
(a) Seller and Intuit, jointly and severally, shall indemnify the
Purchaser Indemnified Parties in respect of, and hold each of them harmless
from and against, any and all Losses suffered, incurred or sustained by any
of them or to which any of them becomes subject, resulting from, arising out
of or relating to (i) any misrepresentation, breach of warranty or
nonfulfillment of or failure to perform any covenant or agreement on the part
of Seller contained in this Agreement or (ii) any Retained Liability;
provided, however, that (1) Seller and Intuit shall not have any liability
under this SECTION 10.1(a) unless the aggregate of all Losses relating
thereto for which Seller and Intuit would, but for this proviso, be liable
exceeds on a cumulative basis an amount equal to $150,000, at which point
Seller and Intuit shall be liable for all Losses, and (2) Seller's and
Intuit's aggregate liability under this SECTION 10.1(a) shall in no event
exceed the fair market value of the Shares received by Intuit under this
Agreement determined as of the time a Claim Notice or Indemnity Notice (as
applicable) is delivered under this SECTION 10.
(b) Purchaser shall indemnify Seller Indemnified Parties in respect of,
and hold each of them harmless from and against, any and all Losses suffered,
incurred or sustained by any of them or to which any of them becomes subject,
resulting from, arising out of or relating to (i) any misrepresentation,
breach of warranty or nonfulfillment of or failure to perform any covenant or
agreement on the part of Purchaser contained in this Agreement or (ii) any
Assumed Liability; provided, however, that (1) Purchaser shall not have any
liability under this SECTION 10.1(b) unless the aggregate of all Losses
relating thereto for which Purchaser would, but for this proviso, be liable
exceeds on a cumulative basis an amount equal to $150,000, at which point
Purchaser shall be liable for all Losses, and (2) Purchaser's aggregate
liability under this SECTION 10.1(b) shall in no event exceed the fair market
value of the Shares received by Intuit under this Agreement determined as of
the time a Claim Notice or Indemnity Notice (as applicable) is delivered
under this SECTION 10.
10.2 METHOD OF ASSERTING CLAIMS. All claims for indemnification by
any Indemnified Party under SECTION 10.1 will be asserted and resolved as
follows:
(a) In the event any claim or demand in respect of which an Indemnified
Party may seek indemnity under SECTION 10.1 is asserted against or sought to
be collected from such Indemnified Party by a Person other than Seller,
Purchaser or any Affiliate of Seller or Purchaser (a "Third Party Claim"),
the Indemnified Party shall deliver a Claim Notice with reasonable promptness
to the Indemnifying Party. If the Indemnified Party fails to provide the
Claim Notice with reasonable promptness after the Indemnified Party receives
notice of such Third Party Claim, the Indemnifying Party will not be
obligated to indemnify the Indemnified Party with respect to such Third Party
Claim only to the extent that the Indemnifying Party's ability to defend has
been irreparably prejudiced by such failure of the Indemnified Party. The
Indemnifying Party will notify the Indemnified Party as soon as practicable
within the Dispute
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Period whether the Indemnifying Party disputes its liability to the
Indemnified Party under SECTION 10.1 and whether the Indemnifying Party
desires, at its sole cost and expense, to defend the Indemnified Party
against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party within
the Dispute Period that the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third Party Claim pursuant to this
SECTION 10.2(a), then the Indemnifying Party will have the right to defend,
with counsel reasonably satisfactory to the Indemnified Party, at the sole
cost and expense of the Indemnifying Party, such Third Party Claim by all
appropriate proceedings, which proceedings will be vigorously and diligently
prosecuted by the Indemnifying Party to a final conclusion or will be settled
at the discretion of the Indemnifying Party (but only with the consent of the
Indemnified Party in the case of any settlement that provides for any relief
other than the payment of monetary damages or that provides for the payment
of monetary damages as to which the Indemnified Party will not be indemnified
in full by reason of Section 10.1). The Indemnifying Party will have full
control of such defense and proceedings, including any compromise or
settlement thereof; PROVIDED, HOWEVER, that the Indemnified Party may, at the
sole cost and expense of the Indemnified Party, at any time prior to the
Indemnifying Party's delivery of the notice referred to in the first sentence
of this SECTION 10.2(a)(i), file any motion, answer or other pleadings or
take any other action that the Indemnified Party reasonably believes to be
necessary or appropriate to protect its interests; and provided further, that
if requested by the Indemnifying Party, the Indemnified Party will, at the
sole cost and expense of the Indemnifying Party, provide reasonable
cooperation to the Indemnifying Party in contesting any Third Party Claim
that the Indemnifying Party elects to contest. The Indemnified Party may
participate in, but not control, any defense or settlement of any Third Party
Claim controlled by the Indemnifying Party pursuant to this SECTION
10.2(a)(i), and except as provided in the preceding sentence, the Indemnified
Party will bear its own costs and expenses with respect to such
participation. Notwithstanding the foregoing, the Indemnified Party may take
over the control of the defense or settlement of a Third Party Claim at any
time if it irrevocably waives its right to indemnity under SECTION 10.1 with
respect to such Third Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified Party
within the Dispute Period that the Indemnifying Party desires to defend the
Third Party Claim pursuant to SECTION 10.2(a), or if the Indemnifying Party
gives such notice but fails to prosecute vigorously and diligently or settle
the Third Party Claim, or if the Indemnifying Party fails to give any notice
whatsoever within the Dispute Period, then the Indemnified Party will have
the right to defend, at the sole cost and expense of the Indemnifying Party,
the Third Party Claim by all appropriate proceedings, which proceedings will
be prosecuted by the Indemnified Party in a reasonable manner and in good
faith or will be settled at the discretion of the Indemnified Party (with the
consent of the Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such defense and
proceedings, including any compromise or settlement thereof; provided,
however, that if requested by the Indemnified Party, the Indemnifying Party
will, at the sole cost and expense of the Indemnifying Party, provide
reasonable cooperation to the Indemnified Party and its counsel in contesting
any Third Party Claim which the Indemnified Party is contesting.
Notwithstanding the foregoing provisions of this SECTION 10.2(a)(ii), if the
Indemnifying Party has notified the Indemnified Party within the Dispute
Period that the Indemnifying Party disputes its liability hereunder to the
Indemnified Party with respect to such Third Party Claim and if such dispute
is resolved in favor of the
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Indemnifying Party, the Indemnifying Party will not be required to bear the
costs and expenses of the Indemnified Party's defense pursuant to this
SECTION 10.2(a)(ii) or of the Indemnifying Party's participation therein at
the Indemnified Party's request, and the Indemnified Party will reimburse the
Indemnifying Party in full for all reasonable costs and expenses incurred by
the Indemnifying Party in connection with such litigation. The Indemnifying
Party may participate in, but not control, any defense or settlement
controlled by the Indemnified Party pursuant to this SECTION 10.2(a)(ii), and
the Indemnifying Party will bear its own costs and expenses with respect to
such participation.
(b) In the event an Indemnified Party has a claim under SECTION 10.1
against any Indemnifying Party that does not involve a Third Party Claim, the
Indemnified Party shall deliver an Indemnity Notice with reasonable
promptness to the Indemnifying Party. The failure by any Indemnified Party to
give the Indemnity Notice shall not impair such party's rights hereunder
except to the extent that an Indemnifying Party demonstrates that it has been
irreparably prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim described in such
Indemnity Notice, the Indemnifying Party shall pay the amount of such Loss to
the Indemnified Party on demand. If the Indemnifying Party does not notify
the Indemnified Party that it does not dispute the claim described in the
Indemnity Notice or disputes its liability with respect to such claim, each
party may pursue such remedies as it may determine with respect to such claim.
ARTICLE 11
TERMINATION
11.1 TERMINATION. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned:
(a) at any time before the Closing, by written agreement of Seller,
Intuit and Purchaser; or
(b) at any time after the expiration of the sixty (60) day period
commencing on the date of this Agreement (which period will be extended to a
period ending ninety (90) days after receipt of a second request from the
Federal Trade Commission or the Antitrust Division of the Department of
Justice related to the filings under the HSR Act described in SECTIONS 4.1
AND 5.1) by Seller or Purchaser upon written notification given by the
terminating party to the non-terminating party if the Closing shall not have
occurred on or before the expiration of such period, as the same may be
extended, and such failure to consummate the Closing is not caused by a
breach of this Agreement by the terminating party; or
(c) by Purchaser, in accordance with the provisions of SECTION 4.6
hereof; or
(d) by either Purchaser or Seller in the event that any Governmental or
Regulatory Authority shall have issued an order, decree or ruling or taken
any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and nonappealable; or
(e) by Purchaser if, between the date hereof and the time scheduled for
the Closing: (i) Seller or Intuit makes a general assignment for the benefit
of creditors, or any proceeding
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shall be instituted by or against Seller or Intuit seeking to adjudicate any
of them a bankrupt or insolvent, or seeking liquidation, winding up or
reorganization, arrangement, adjustment, protection, relief or composition of
its debts under any Law relating to bankruptcy, insolvency or reorganization;
(ii) an event or condition occurs that has resulted in a Material Adverse
Effect on the Assets or the Assumed Liabilities; (iii) any material
representation or warranty of Seller or Intuit contained in this Agreement
shall not have been true and correct when made; or (iv) Seller or Intuit
shall not have complied with any material covenant or agreement to be
complied with by them and contained in this Agreement; PROVIDED, however,
that before Purchaser shall have the right to terminate this Agreement under
clauses (ii), (iii) and (iv) above, Purchaser shall have given Seller written
notice of the basis on which Purchaser intends to terminate this Agreement,
specifying in reasonable detail the nature of the event, condition,
inaccuracy, non-compliance or breach (the "Claimed Breach") and Seller and
Intuit shall have had fifteen (15) days after the date of receipt of such
notice within which to cure the Claimed Breach.
(f) by Seller and Intuit if, between the date hereof and the time
scheduled for the Closing: (i) Purchaser makes a general assignment for the
benefit of creditors or any proceeding shall be instituted by or against
Purchaser seeking to adjudicate Purchaser a bankrupt or insolvent, or seeking
liquidation, winding up or reorganization, arrangement, adjustment,
protection, relief or composition; (ii) any material representation or
warranty of Purchaser contained in this Agreement shall not have been true
and correct when made; (iii) Purchaser shall not have complied with any
material covenant or agreement to be complied with by it and contained in
this Agreement; or (iv) an event or condition occurs that has resulted in a
Material Adverse Effect with respect to Purchaser; provided, however, that
before Seller shall have the right to terminate this Agreement under clauses
(ii), (iii) and (iv) above, Seller shall have given Purchaser written notice
of the basis on which Seller intends to terminate this Agreement, specifying
in reasonable detail the Claimed Breach, and Purchaser shall have had fifteen
(15) days after the date of receipt of such notice within which to cure the
Claimed Breach; or
(g) by Seller and Intuit, if Seller and Intuit shall have reasonably and
in good faith determined that as a result of having entered into this
Agreement and/or performing their obligations under this Agreement, Seller
and/or Intuit will experience a Material Adverse Result. Seller and Intuit
shall notify Purchaser in writing regarding any determination of a Material
Adverse Result. If Seller and Intuit terminate this Agreement under this
SECTION 11.1(g), Seller or Intuit shall promptly pay to Purchaser a
termination fee of $2,500,000 (the "SELLER'S TERMINATION FEE").
11.2 EFFECT OF TERMINATION. If this Agreement is validly terminated
pursuant to SECTION 11.1, this Agreement will forthwith become null and void,
and there will be no liability or obligation on the part of Seller, Intuit or
Purchaser (or any of their respective officers, directors, employees, agents
or other representatives or Affiliates) including, without limitation, for
payment of the Break-up Fee, except that the provisions of SECTION 11.1(g)
with respect to payment of the Seller's Termination Fee and the provisions
with respect to expenses in SECTION 13.4 and confidentiality in SECTION 13.6
will continue to apply following any such termination.
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ARTICLE 12
DEFINITIONS
12.1 DEFINITIONS AND CONSTRUCTION.
(a) Defined Terms. As used in this Agreement, the following defined
terms have the meanings indicated below:
"1934 ACT" has the meaning ascribed to it in SECTION 3.6.
"ACTION OR PROCEEDING" means any action, suit, proceeding or
arbitration.
"AFFILIATE" means any Person that directly, or indirectly, through one
or more intermediaries, controls or is controlled by or is under common control
with the Person specified.
"AGREEMENT" means this Asset Purchase Agreement and the Exhibits and
the Disclosure Schedule, as the same shall be amended from time to time.
"ASSETS" has the meaning ascribed to it in SECTION 1.1(a).
"ASSIGNMENT INSTRUMENTS" has the meaning ascribed to it in SECTION 1.4.
"ASSUMED LIABILITIES" has the meaning ascribed to it in SECTION 1.2(a).
"ASSUMPTION AGREEMENT" has the meaning ascribed to it in SECTION 1.4.
"ASSUMPTION INSTRUMENTS" has the meaning ascribed to it in SECTION 1.4.
"AVAILABLE EMPLOYEES" has the meaning ascribed to it in SECTION 6.4.
"BUSINESS DAY" means a day other than Saturday, Sunday or any day on
which banks located in California are authorized or obligated to close.
"BUSINESS CHANNEL" shall mean any channel other than a Consumer
Channel.
"CLAIM NOTICE" means written notification pursuant to SECTION 10.2(a)
of a Third Party Claim as to which indemnity under SECTION 10.1(a) is sought by
an Indemnified Party, enclosing a copy of all papers served, if any, and
specifying the nature of and basis for such Third Party Claim and for the
Indemnified Party's claim against the Indemnifying Party under SECTION 10.1(a),
together with the amount or, if not then reasonably ascertainable, the estimated
amount, determined in good faith, of such Third Party Claim.
"CLOSING" means the closing of the transactions contemplated by SECTION
1.4.
"CLOSING DATE" means (a) the second (2nd) Business Day after the day on
which the last of the consents, approvals, determinations, actions, filings,
notices or waiting periods described in, or related to the filings described in,
SECTIONS 4.1 AND 5.1, ARTICLE 7 or ARTICLE 8 has been obtained, made or given or
has expired, as applicable, or (b) such other date as Purchaser, Seller and
Intuit mutually agree upon in writing.
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"CODE" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"COMMON STOCK" has the meaning ascribed to it in SECTION 1.3.
"CONSUMER CHANNEL" means the Websites located at Intuit.com,
IntuitInsurance.com and InsureMarket.com, and the Intuit Consumer Product, but
not including any of Intuit's business or professional advisor products,
channels or areas (E.G., the small business area to which links are made from
Quicken.com).
"CONSUMER INSURANCE PRODUCTS" shall mean Insurance Products designed
principally for and customarily promoted to individuals, such as voluntary term
life insurance, personal lines automobile insurance and homeowner's insurance,
but shall not include Insurance Products designed for businesses (E.G.,
businessowner's policy, workers compensation, etc.) or group coverages (E.G.,
group health insurance, group life insurance and other forms of insurance that
are group underwritten, guaranteed issuance or the premiums for which are paid
in whole or in part by an employer).
"CONTINUING OBLIGATIONS" has the meaning ascribed to it in SECTION
1.5(a).
"CONTRACT" means any agreement, contract, lease, license, evidence of
indebtedness, mortgage, indenture, security agreement or other written
agreement.
"COPYRIGHTS" means copyrights in works of authorship of any type,
including Software, registrations and applications for registration thereof
throughout the world, all rights therein provided by international treaties and
conventions, all moral and common law rights thereto, and all other rights
associated therewith.
"CURE PERIOD" has the meaning ascribed to it in SECTION 4.4(e).
"DISCLOSURE SCHEDULE" means the record delivered to Purchaser by Seller
and Intuit herewith, dated as of the date hereof and amended in accordance with
SECTION 4.6, containing all lists, descriptions, exceptions and other
information and materials as are required to be included therein by Seller
pursuant to this Agreement.
"DISPUTE PERIOD" means the period ending sixty (60) days following
receipt by an Indemnifying Party of either a Claim Notice or an Indemnity
Notice.
"ENCUMBRANCE" means any security interest, pledge, mortgage, Lien
(including, without limitation, environmental and Tax Liens), charge,
encumbrance, adverse claim, preferential agreement, or restriction of any kind,
including, without limitation, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
"ESTIMATED HISTORICAL QUOTE SESSIONS" shall have the meaning ascribed
to it in SECTION 2.9.
"EXCLUDED ASSETS" has the meaning ascribed to it in SECTION 1.1(b).
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"FINANCIAL DEFICIENCY" has the meaning ascribed to it in SECTION 4.4(e)
"GAAP" has the meaning ascribed to it in SECTION 3.6.
"GENERAL ASSIGNMENT" has the meaning ascribed to it in SECTION 1.4.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"HSR ACT" means Section 7A of the Clayton Act (Title II of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) and the rules
and regulations promulgated thereunder.
"INDEMNIFIED PARTY" means any Person claiming indemnification under any
provision of ARTICLE 10.
"INDEMNIFYING PARTY" means any Person against whom a claim for
indemnification is being asserted under any provision of ARTICLE 10.
"INDEMNITY NOTICE" means written notification pursuant to SECTION
10.2(b) of a claim for indemnity under ARTICLE 10 by an Indemnified Party,
specifying the nature of and basis for such claim, together with the amount or,
if not then reasonably ascertainable, the estimated amount, determined in good
faith, of such claim.
"INSURANCE PRODUCT" means a contract whereby a Person undertakes to
indemnify another against loss, damage, or liability arising from a contingent
or unknown event.
"INTELLECTUAL PROPERTY" means (i) Patents, (ii) Trademarks, (iii)
Copyrights, (iv) Trade Secrets, (v) Software and any other intellectual or
industrial property.
"INTERIM BALANCE SHEET" has the meaning ascribed to it in SECTION
4.4(e).
"INTUIT CONSUMER PRODUCT" shall mean Intuit's Quicken Basic and Deluxe
personal finance software and TurboTax Basic and Deluxe tax preparation software
products to the extent that Intuit determines, in its sole discretion, to
promote Consumer Insurance Products in such products; provided, however, that
Intuit can terminate or modify such products in its sole discretion at any time.
"KNOWLEDGE OF SELLER AND INTUIT" or "KNOWN TO SELLER AND INTUIT" means
the actual knowledge after reasonable inquiry of Steven Aldrich, Slawek Ligier,
and Velvet Beard.
"LAWS" means all laws, statutes, rules, regulations, ordinances and
other pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision or of any Governmental or Regulatory Authority.
"LIABILITIES" means all indebtedness, obligations and other liabilities
of a Person (whether absolute, accrued, contingent, fixed or otherwise, or
whether due or to become due).
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"LICENSE" has the meaning ascribed to it in SECTION 1.5(a).
"LICENSE RESTRICTIONS" has the meaning ascribed to it in SECTION
1.5(a).
"LIEN" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other lien of any kind, or any
conditional sale contract, title retention contract or other contract to give
any of the foregoing.
"LOSS" means any and all damages, fines, fees, penalties, deficiencies,
losses and expenses (including without limitation interest, court costs, fees of
attorneys, accountants and other experts or other expenses of litigation or
other proceedings or of any claim, default or assessment).
"MATERIAL ADVERSE EFFECT" shall have the following meanings:
(i) with respect to the Assets or the Assumed Liabilities, any
circumstance, change in or effect on, the Assets that, individually or in the
aggregate with all other circumstances, changes in or effects on, the Assets
is or is reasonably likely to be materially adverse to the Assets or the
Liabilities; provided, Seller's failure to assign, delegate, subcontract or
otherwise effectively transfer the Site Related Contracts to Purchaser in
accordance with this Agreement shall not constitute a Material Adverse
Effect; and
(ii) with respect to Purchaser, any circumstance, change in or
effect on the assets or business of Purchaser that individually or in the
aggregate with all other circumstances, changes and/or effects on, the assets
or business of Purchaser is or is reasonably likely to be materially adverse
to Purchaser and its business taken as a whole; provided, however, any
adverse effect attributable to the following shall be disregarded: (i)
circumstances or changes arising as a result of the announcement of, or
contemplated consummation of the Transaction, (ii) general industry
conditions, (iii) general economic, business or financial market conditions
and (iv) the performance of Purchaser's stock price (in and of itself),
although the performance of Purchaser's stock price may be considered
together with matters other than those in clauses (i), (ii) and (iii) in
determining whether a Material Adverse Effect has occurred with respect to
Purchaser.
"MATERIAL ADVERSE RESULT" means that there is a reasonable likelihood
that Seller and/or Intuit will suffer damages in an aggregate amount of at least
$10,000,000 resulting from breaches of carrier, product linking, distribution
and other Contracts related to the operation of the Site, but excluding from
such damages any losses, claims or expenses relating to the termination of real
and personal property leases, taxes and employee severance obligations.
"MATERIAL INFORMATION" has the meaning ascribed to it in SECTION
4.6(c).
"NONDISCLOSURE AGREEMENT" has the meaning ascribed to it in SECTION
13.3.
"OPERATIVE AGREEMENTS" means, collectively, the General Assignment and
the other Assignment Instruments, the Assumption Agreement and the other
Assumption Instruments, the Distribution Agreement, the Shareholders Agreement,
the Voting Agreement and any other agreements to be entered into in connection
with the transaction.
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"ORDER" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
"PARTY" means Seller and Intuit, on one hand, and Purchaser, on the
other, and "PARTIES" means Seller, Intuit and Purchaser.
"PATENTS" means United States, foreign and international patents,
patent applications and statutory invention registrations, including reissues,
divisions, continuations, continuations-in-part, extensions and reexaminations
thereof, and all rights therein provided by international treaties and
conventions.
"PERSON" means any natural person, corporation, general partnership,
limited partnership, proprietorship, other business organization, trust, union,
association or Governmental or Regulatory Authority.
"PRIOR YEAR" has the meaning ascribed to it in SECTION 2.9.
"PUBLIC ANNOUNCEMENT" has the meaning ascribed to it in SECTION 4.4(e)
"PURCHASER" has the meaning ascribed to it in the forepart of this
Agreement.
"PURCHASER INDEMNIFIED PARTIES" means Purchaser and its officers,
directors, employees, agents and Affiliates.
"PURCHASER PREFERRED STOCK" has the meaning ascribed to it in SECTION
3.5.
"PURCHASER SEC DOCUMENTS" has the meaning ascribed to it in SECTION
3.6.
"REPRESENTATIVES" has the meaning ascribed to it in SECTION 4.2.
"RESOLUTION PERIOD" means the period ending thirty (30) days following
receipt by an Indemnified Party of a written notice from an Indemnifying Party
stating that it disputes all or any portion of a claim set forth in a Claim
Notice or an Indemnity Notice.
"RETAINED LIABILITIES" has the meaning ascribed to it in SECTION
1.2(b).
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER" has the meaning ascribed to it in the forepart of this
Agreement.
"SELLER INDEMNIFIED PARTIES" means Seller and Intuit and their
respective officers, directors, employees, agents and Affiliates.
"SELLER'S INTELLECTUAL PROPERTY" has the meaning ascribed to it in
SECTION 1.1.(a)(i).
"SELLERS LICENSES" means licenses of Seller's Intellectual Property by
Seller or Intuit to third parties as further described in SECTION 2.8 OF THE
DISCLOSURE SCHEDULE.
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"SELLER'S TERMINATION FEE" has the meaning ascribed to it in SECTION
11.1(g).
"SHAREHOLDERS AGREEMENT" has the meaning ascribed to it in SECTION
7.11.
"SITE" has the meaning ascribed to it in the forepart of this
Agreement.
"SITE INSURANCE SERVICES" has the meaning ascribed to it in the
forepart of this Agreement.
"SITE RELATED CONTRACTS" has the meaning ascribed to it in SECTION
1.1(a)(ii).
"SOFTWARE" means computer software, programs and databases in any form,
including Internet web sites, web content and links, source code, object code,
operating systems and specifications, data, databases, database management code,
utilities, graphical user interfaces, menus, images, icons, forms, methods of
processing, software engines, platforms and data formats, all versions, updates,
corrections, enhancements and modifications thereof, and all related
documentation, developer notes, comments and annotations.
"TAX" or "TAXES" means all taxes, charges, fees, imposts, levies or
other assessments, including, without limitation, all net income, gross
receipts, capital, sales, use, gains, ad valorem, value-added, transfer,
franchise, profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp, occupation,
property and estimated taxes, customs duties, fees, assessments and charges of
any kind whatsoever, whether computed on a separate, consolidated, unitary,
combined or any other basis, together with any interest (including interest that
would have accrued absent a netting of Taxes) and any penalties, fines,
additions to tax or additional amounts imposed by any taxing authority (domestic
or foreign).
"TERMINATION NOTICE" has the meaning ascribed to it in SECTION 4.6(c).
"THIRD PARTY CLAIM" has the meaning ascribed to it in SECTION 10.2(a).
"TRADEMARKS" means trademarks, service marks, trade dress, logos, trade
names, corporate names, symbols, slogans and other indicia of source or origin,
including the goodwill of the business symbolized thereby or associated
therewith, common law rights thereto, registrations and applications for
registration thereof throughout the world, all rights therein provided by
international treaties and conventions, and all other rights associated
therewith.
"TRADE SECRETS" means trade secrets, know-how and other confidential or
proprietary technical, business and other information which is protectible under
applicable Law, including manufacturing and production processes and techniques,
research and development information, technology, drawings, specifications,
designs, plans, proposals, technical data and all rights in any jurisdiction to
limit the use or disclosure thereof.
"TRANSACTION" has the meaning ascribed to it in the forepart of this
Agreement.
"TRANSFER TAX" shall mean any transfer, sales, use, registration,
value-added and other similar Taxes, fees or related amounts (including any
penalties, interest and addition to Tax)
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arising as a result of or otherwise incurred in connection with any of the
transactions contemplated by this Agreement.
"UNAVAILABLE EMPLOYEES" has the meaning ascribed to it in SECTION 6.4.
"URL" has the meaning ascribed to it in the forepart of this Agreement.
(b) Construction of Certain Terms and Phrases. Unless the context of
this Agreement otherwise requires: (i) words of any gender include each other
gender; (ii) words using the singular or plural number also include the
plural or singular number, respectively; (iii) the terms "hereof," "herein,"
"hereby" and derivative or similar words refer to this entire Agreement; (iv)
the terms "Article" or "Section" refer to the specified Article or Section of
this Agreement; and (v) the phrases "ordinary course," "ordinary course of
business" and "ordinary course of business consistent with past practice"
refer to the business and practice of Seller or Intuit in connection with the
Site Insurance Services or Purchaser in connection with its business.
Whenever this Agreement refers to a number of days, such number shall refer
to calendar days unless Business Days are specified. All accounting terms
used herein and not expressly defined herein shall have the meanings given to
them under GAAP.
ARTICLE 13
MISCELLANEOUS
13.1 NOTICES. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if
delivered personally or mailed (first class postage prepaid) to the parties
at the following addresses or facsimile numbers:
If to Purchaser, to:
InsWeb Corporation
11290 Pyrites Way, Suite 200
Gold River, California 95670-4481
Attn: President
With a copy to:
InsWeb Corporation
11290 Pyrites Way, Suite 200
Gold River, California 95670-4481
Attn: General Counsel
If to Seller or Intuit, to:
Intuit Inc.
2632 Marine Way
Mountain View, California 94043
Attn: Senior Vice President, Corporate Strategy
With a copy to:
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Intuit Inc.
2632 Marine Way
Mountain View, California 94043
Attn: General Counsel
All such notices, requests and other communications will (i) if
delivered personally to the address provided in this SECTION 13.1, be deemed
given upon delivery, and (ii) if delivered by mail in the manner described
above to the address provided in this SECTION 13.1, be deemed given upon
receipt. Any party from time to time may change its address or other
information for the purpose of notices to that party by giving notice
specifying such change to each other party hereto.
13.2 BULK SALES ACT. The parties hereby waive compliance with the bulk
sales act or comparable statutory provisions of each applicable jurisdiction.
13.3 ENTIRE AGREEMENT. This Agreement and the Operative Agreements
supersede all prior discussions and agreements between the parties with
respect to the subject matter hereof and thereof and contains the sole and
entire agreement between the parties hereto with respect to the subject
matter hereof and thereof; PROVIDED, HOWEVER, that the pre-existing Mutual
Nondisclosure and Nonuse Agreement dated September 28, 2000 (the
"NONDISCLOSURE AGREEMENT") between the parties shall remain in full force and
effect and, in the event of a conflict between the provisions of such
Nondisclosure Agreement and the provisions of SECTION 13.6, the provisions of
such Nondisclosure Agreement shall control. The parties acknowledge that each
has participated in the drafting of this Agreement and that neither party
shall assert that the Agreement shall be construed or interpreted against any
particular party as a result of its having participated in the drafting of
the Agreement.
13.4 EXPENSES. Except as otherwise expressly provided in this Agreement,
whether or not the transactions contemplated hereby are consummated, each
party will pay its own costs and expenses incurred in connection with the
negotiation, execution and closing of this Agreement and the Operative
Agreements and the transactions contemplated hereby and thereby.
13.5 PUBLIC ANNOUNCEMENTS. At all times at or before the Closing,
Seller, Intuit and Purchaser will not issue or make any reports, statements
or releases to the public with respect to this Agreement or the transactions
contemplated hereby without the consent of the other, which consent shall not
be unreasonably withheld. Each of Intuit and Purchaser shall issue press
releases regarding the Transaction contemporaneously on the day the
Transaction is first announced which the Parties anticipate will be on or
about November 27, 2000. Each Party shall have twenty-four (24) hours after
its receipt of such other Party's press release during the receiving Party's
normal work week in which such press release is received to review the other
Party's press release. No Party will host any teleconference calls concerning
the Transaction without obtaining the prior written approval of each other
Party. If any Party is unable to obtain the approval of its public report,
statement or release from the other Party and such report, statement or
release is, in the opinion of legal counsel to such Party, required by Law in
order to discharge such Party's disclosure obligations, then such Party may
make or issue the required report, statement or release to the extent
required by Law (provided the disclosing Party shall use reasonable efforts
to advise the other Party hereto and provide it with a copy of the proposed
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disclosure prior to making such proposed disclosure). From and after the date
of this Agreement and until the Closing Date, each Party agrees to cooperate
in connection with any press release mentioning the Transaction or any other
Party, and subsequent to the Closing Date, each Party shall cooperate with
each other Party in connection with any press release mentioning the other
Party or its products. Such cooperation shall include, but not be limited to,
using commercially reasonable efforts to provide the other Party with
forty-eight (48) hours advance notice of the proposed press release and
providing a draft of such proposed press release at least twenty-four (24)
hours in advance of its publication to enable such other Party to review and
approve in writing the final version of such press release. Seller and
Purchaser shall cooperate in developing and implementing a program for
disclosing this Agreement and the transfer of the Assets described herein to
Seller's customers, insurance carriers with Seller has Site Related Contracts
and Seller's and Intuit's distribution and traffic partners with whom Seller
or Intuit has entered into Site Related Contracts.
13.6 SUPPLEMENTAL CONFIDENTIALITY. In addition to the obligations of the
parties under the Nondisclosure Agreement, each party hereto will hold, and
will use its best efforts to cause its Affiliates, and their respective
Representatives to hold, in strict confidence from any Person (other than any
such Affiliate or Representative) and refrain from using or disclosing all
documents and information concerning the other party or any of its Affiliates
furnished to it by the other party or such other party's Representatives in
connection with this Agreement or the transactions contemplated hereby,
unless compelled to disclose by judicial or administrative process (including
without limitation in connection with obtaining the necessary approvals of
this Agreement and the transactions contemplated hereby of Governmental or
Regulatory Authorities) or by other requirements of Law or in an Action or
Proceeding brought by a party hereto in pursuit of its rights or in the
exercise of its remedies hereunder. This SECTION 13.6 shall not apply to the
extent that the documents or information described in this SECTION 13.6, can
be shown to have been (a) previously known by the party receiving such
documents or information, (b) in the public domain (either prior to or after
the furnishing of such documents or information hereunder) through no fault
of such receiving party or (c) later acquired by the receiving party from
another source if the receiving party is not aware that such source is under
an obligation to another party hereto to keep such documents and information
confidential. In the event the transactions contemplated hereby are not
consummated, upon the request of the other party, each party hereto will, and
will cause its Affiliates, and their respective Representatives to, promptly
(and in no event later than five (5) Business Days after such request)
redeliver or cause to be redelivered all copies of documents and information
furnished by the other party in connection with this Agreement or the
transactions contemplated hereby and destroy or cause to be destroyed all
notes, memoranda, summaries, analyses, compilations and other writings
related thereto or based thereon prepared by the party to whom such documents
and information are furnished or the Representatives of each party (except
for one copy of the foregoing which may be retained in such party's legal
archives).
13.7 WAIVER. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No
waiver by any party of any term or condition of this Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same or
any other term or
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condition of this Agreement on any future occasion. All remedies, either
under this Agreement or by Law or otherwise afforded, will be cumulative and
not alternative.
13.8 AMENDMENT. This Agreement may be amended, supplemented or modified
only by a written instrument duly executed by or on behalf of each party
hereto.
13.9 NO THIRD PARTY BENEFICIARY. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of
the parties to confer third-party beneficiary rights upon any other Person
other than any Person entitled to indemnity under ARTICLE 10.
13.10 NO ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other parties hereto and any attempt
to do so will be void. Subject to the preceding sentence, this Agreement is
binding upon, inures to the benefit of and is enforceable by the parties
hereto and their respective successors and assigns.
13.11 HEADINGS. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
13.12 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Each party hereby
irrevocably submits to the exclusive jurisdiction of the United States
District Court for the Northern District of California or any court of the
State of California located in the City of San Francisco in any such action,
suit or proceeding arising out of or relating to this Agreement, any of the
Operative Agreements or any of the transactions contemplated hereby or
thereby, and agrees that any such action, suit or proceeding shall be brought
only in such court. Each party hereby irrevocably waives, to the fullest
extent permitted by Law, any objection that it may now or hereafter have to
the laying of the venue of any such action, suit or proceeding brought in
such a court and any claim that any such action, suit or proceeding brought
in such a court has been brought in an inconvenient forum.
13.13 INVALID PROVISIONS. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any party hereto under this Agreement will not
be materially and adversely affected thereby, (a) such provision will be
fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part
hereof, (c) the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom and (d) in lieu of such
illegal, invalid or unenforceable provision, there will be added
automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
13.14 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the Laws of the State of California applicable to a
contract executed and performed in such State, without giving effect to the
conflicts of law principles thereof.
13.15 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the
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same instrument. Photocopied facsimile signature pages of this Agreement will
be sufficient to bind the parties hereto, and will be followed by originally
signed signature pages.
* * * * *
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of each party as of the date first above
written.
INTUIT INSURANCE SERVICES, INC.
By:
--------------------------------------
Name: Steven P. Aldrich
Title:
--------------------------------------
INSWEB CORPORATION
By:
--------------------------------------
Name: Hussein A. Enan
Title:
--------------------------------------
Intuit executes this Agreement and agrees to be
bound thereby to the extent of the provisions of this
Agreement in which Intuit's name appears, and not
others.
INTUIT INC.
By:
--------------------------------------
Name: Raymond G. Stern
Title:
--------------------------------------
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Exhibit A
Distribution Agreement
-iv-
Exhibit B
Shareholders Agreement
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