EXHIBIT 10(c)
INVESTMENT AND STRATEGIC ALLIIANCE AGREEMENT
between
21st CENTURY INSURANCE GROUP
and
AMERICAN INTERNATIONAL GROUP, INC.
JOINT VENTURE AGREEMENT
FOR
20TH CENTURY INSURANCE COMPANY OF ARIZONA
Joint Venture Agreement, dated as of December 7, 1995 between American
International Group, Inc., a Delaware corporation ("AIG") and 20th Century
Industries, a California corporation ("Industries").
WHEREAS, AIG and Industries are party to an Investment and Strategic
Alliance Agreement, dated as of October 17, 1994 (the "Investment Agreement");
WHEREAS, Section 5.2 of the Investment Agreement provides f or AIG and
Industries the opportunity to form one or more subsidiaries to engage in
Industries' business in states outside California mutually agreed from time to
time by MG and Industries;
WHEREAS, AIG and Industries have agreed to form a subsidiary
("Subsidiary")to engage in Industries' business in Arizona and whereas
such subsidiary will be licensed by the Department of Insurance of the
State of Arizona; and
WHEREAS, the parties wish to state their agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. Formation. The articles of incorporation of Subsidiary (the
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"Articles") shall be substantially in the form set forth in Exhibit A hereto
Promptly following the date hereof, AIG shall file or cause to be filed the
Articles with the Arizona Corporation Commission.
2. Bylaws. The Bylaws of Subsidiary (the "Bylaws") shall be
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substantiallyin the form set forth in Exhibit B hereto. Promptly following the
incorporation of Subsidiary, AIG and Industries shall cause the Board of
Directors of Subsidiary (the "Board") to adopt the Bylaws.
3. Subscriptions. Promptly following the incorporation of Subsidiary,
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(i) AIG shall subscribe for 5100 shares of Subsidiary's Common Stock, par value
$100 per share (the "Common Stock") at an aggregate subscription price of
$1,500,000.00 and (ii) Industries shall subscribe f or 4900 shares of Common
Stock at an aggregate subscription price of $500,000, operational skills of
Industries' employees, the goodwill of Industries and other reliable
consideration.
4. Future Share Offerings. (a) The Board may, by majority vote, cause
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Subsidiary, from time to time, to offer to AIG and Industries up to an aggregate
of 1,300 shares of Common Stock at a subscription price of $10,000 per share.
AIG shall be offered the right to subscribe for 51% of each such offer and
Industries shall be offered the right to subscribe for 49% of each such offer.
(b) Within twenty-five business days of the Board approving an offer
of additional Common Stock as provided in Section 4(a) above, Industries shall
notify AIG and Subsidiary in writing as to whether it will accept such offer and
subscribe for the additional Common Stock offered to it. In the event Industries
accepts such offer, Subsidiary shall issue the additional Common Stock to AIG
and Industries on the terms set forth in Section 4(a) and in the resolution of
the Board relating to such offer.
(C) In the event Industries fails to notify AIG and Subsidiary as
providedin Section 4(b) above that it will accept an offer or otherwise fails to
subscribe for the additional Common Stock pursuant to an offer, AIG shall cease
to have the right to subscribe for the additional Common Stock pursuant to such
offer and, in lieu of such right and upon authorization of the issuance thereof
by the Board, AIG shall have the right to subscribe for shares of Subsidiary's
Series A preferred stock, par value $.01 per share (the Preferred Stock"), which
shall have the terms set forth in Exhibit A hereto. In the event AIG exercises
its right to subscribe for the Preferred Stock, the subscription price shall be
$10,000 per share of Preferred Stock (the "Preferred Subscription Price"). With
respect to an offer, MG shall have the right to purchase the number of shares of
Preferred Stock equal to the total number of shares of Common Stock offered to
AIG and Industries in 5uch offer.
(d) During each Option Period (as defined below), Industries may, at
its option, purchase from AIG up to 49% of all Preferred Stock theretofore
acquired by AIG pursuant to Section 4(c) (rounded down to the nearest whole
share) at the price per share equal to the Preferred Subscription Price, plus
accrued and unpaid dividends. The "Option Periods" shall be the 10-day period
commencing on each of the first, second, third and fourth anniversary of the
date of this Agreement. The parties acknowledge that immediately upon the
purchase by Industries of Preferred Stock pursuant to this Section 4(d), all
Preferred Stock so purchased and an amount of Preferred Stock owned by AIG (or
its Permitted Transferee) equal to the amount of Preferred Stock purchased by
Industries pursuant to this Section 4(d) multiplied by 51/49 shall by their
terms convert into Common Stock.
(e) On the fifth anniversary of this Agreement, Industries shall
purchase from MG 49% of all Preferred Stock then held by AIG (rounded down to
the nearest whole share) at the price per share equal to the Preferred
Subscription Price, plus accrued and unpaid dividends. The parties acknowledge
that immediately upon the purchase by Industries of Preferred Stock pursuant to
this Section 4(e), all Pref erred Stock then outstanding shall by its terms
convert into Common Stock.
5. Arizona License. Promptly following its incorporation, the parties
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shall cause Subsidiary to apply for all necessary authorizations and licenses of
and from the Arizona Department of Insurance.
6. Line of Business. The parties shall cause Subsidiary to engage
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initially in the personal automobile insurance business in Arizona and/or such
other business as MG and Industries determine. Subsidiary shall not engage in
business in any jurisdiction outside of Arizona.
7. Management. The management of Subsidiary will be subject to the
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Board. The Board shall be comprised of five directors, three of whom shall be
nominated by AIG (the "MG Nominees") and two of whom shall be nominated by
Industries (the "Industries Nominees"). An AIG Nominee shall serve as chairman
of the Board of Directors. Each of AIG and Industries agree to vote their shares
at Subsidiary shareholder meetings in support of the election to the Board of
the AIG Nominees and the Industries Nominees.
The initial MG Nominees shall be Robert Sandier, Howard Smith and
Edward Matthews. Mr. Sandier shall be Chairman of the Board.
The initial Industries Nominees shall be William Mellick and Robert
Tschudy. Mr. Mellick shall be Vice Chairman of the Board.
The Board shall elect executive officers of Subsidiary from time to
time in accordance with Subsidiary's Bylaws. The day-to-day management of
Subsidiary will be conducted by such executive officers in accordance with
policies established by the Board.
The initial officers of Subsidiary shall be Mr. Mellick as President
and Chief Executive Officer, Mr. Tschudy as Executive Vice President, Paul
Farber as Secretary and William Dooley as Treasurer. The other executive
officers of Subsidiary shall be elected by the Board.
8. Operational Support and Controls. (a) AIG will provide Subsidiary
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with investment, treasury and legal services. Subsidiary shall pay AIG an
initial annual fee of $90,000 in respect of such services. The fee shall be paid
by Subsidiary quarterly in arrears within 30 days of the end of each calendar
quarter.
The amount of the fee to be paid by Subsidiary to MG shall be adjusted
on each anniversary of this Agreement as agreed between AIG and Industries, but
in no event shall such fee be less than the initial annual fee.
(b) (i) Industries will provide, directly or indirectly,
Subsidiary with marketing, underwriting, claims, accounting, tax and other
operating services (exclusive of data processing services). Such services will
be provided at Industries' cost. The fee for such services shall be paid by
Subsidiary quarterly in arrears within 30 days of receipt from Industries of an
invoice detailing such expenses.
(ii) Industries will provide, directly or indirectly,
Subsidiary with data processing services for an initial amount of $500,000 and
quarterly amounts equal to 2% of gross written premium for such quarter, such
quarterly fees not to exceed $1,000,000 in aggregate during the first five years
of Subsidiaries' operations. Such quarterly fees shall be paid by Subsidiary
within 30 days of receipt from Industries of an/invoice detailing such expenses.
(iii) It is the intention of AIG and Industries that
Subsidiary eventually operate as a more independent entity with a substantial
ability to provide its own marketing, underwriting, claims, accounting, tax,
data processing and other operating services. Therefore, Industries' obligations
set forth in the previous two paragraphs shall terminate after the fifth
anniversary of the formation of Subsidiary; provided, however, that Industries'
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obligations
to provide such services or a part thereof may be extended by the Board for up
to an additional two years if the Board determines it to be so advisable. During
any such extension period, the services described in paragraph 8b(i) will be
provided at Industries' cost and the services described in paragraph 8b(ii) will
be provided at a quarterly fee of 2% of gross written premium, unless total
quarterly fees described in paragraph 8b(ii) plus any quarterly fees calculated
at 2% of gross written premium for such extension period equal $1,000,000, at
which time the fee will be Industries' cost.
(c) Subsidiary will provide AIG and Industries with access to, and
copies of, all information, including corporate, legal and tax records and
documentation, as MG or Industries may from time to time request. Subsidiary
shall provide to MG and Industries (i) promptly following the end of each fiscal
quarter, an income statement and related data for such quarter and. a balance
sheet as of the last day of such quarter and (ii) promptly following the end of
each month, underwriting and claims data for such month. In addition, AIG and
Industries shall have direct access to any lawyers, consultants or accountants
hired by Subsidiary with respect to its business.
9. Transfer Restrictions. (a) Each of AIG and Industries agree that it
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shall not transfer the Common Stock it acquires pursuant to Section 3 hereof or
the Common Stock or Preferred Stock it acquires pursuant to Section 4 hereof
until the fifth anniversary of this Agreement, pr~d.~d, ~ that AIG shall have
the right to transfer any such Common Stock or Preferred Stock to a wholly-owned
subsidiary of MG and Industries shall have the right to transfer any such Common
Stock to a wholly-owned subsidiary of Industries (provided, in each case, the
transferee agrees to be bound by the terms hereof).
(b) Following the fifth anniversary of this Agreement, AIG and
Industries shall each have the right to transfer all, but not less than all, of
the Common Stock then held by such party, provided that (i) the transferring
party shall have given the other party written notice of the proposed transfer
specifying the intended method of transfer, the identity of the proposed
transferee and the price per share; (ii) within 30 days following such written
notice, the transferring party shall not have received written notice that the
other party will purchase such shares at the price set forth in the written
notice delivered pursuant to clause (i) above; and (iii) such transfer takes
place at a price not less than the price specified in the written notice
delivered pursuant to clause (i) above within 90 days following such written
notice.
(c) In the event a party delivers notice to a transferring party
as provided in Section 9(b) (ii) above that such party will purchase the shares
proposed to be transferred, such purchase shall occur within 30 days of the
latter of (i) written notice pursuant to Section 9(b) (ii) and (ii) the parties
having obtained all regulatory approvals required in order to effect such
purchase. The obligation to effect any such purchase shall be subject to the
condition that the transferring party deliver to the purchasing party (against
payment of the required consideration therefor) the shares being transferred
free and clear of all liens and other claims, together with documentation
evidencing the transfer in form acceptable to the purchasing party. Upon such
purchase, such purchasing party shall acquire all of the rights and obligations
of the transferring party under this Agreement.
10. Accounting Policies. Subsidiary will apply U.S. generally accepted
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accounting principles ("GAAP") on a consistent basis for purposes of maintaining
its books and records.
11. Representations arid Warranties. The representations and
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warranties of the parties are set forth in Schedule I hereto and are
incorporated by reference herein. Such representations and warranties shall
survive the termination of the joint venture created hereby. Failure to obtain
the approval of Arizona regulatory authorities to the formation of Subsidiary
shall not constitute a breach by a party of any such representations or
warranties, provided that such party has complied with Section 13 hereof.
12. Closing. The closing of the transactions contemplated herein (the
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"Closing") shall be at the offices of Low & Childers, P.C., 2999 North 44th
Street, Suite 250, Phoenix, Arizona 85018 on a business day (the "Closing Date")
on or prior to March 29, 1996 as agreed by the parties and shall be as soon as
practicable after the date hereof. Payment of the subscription price shall be
made by each of AIG and Industries by wire transfer or check.
13. Best Efforts. AIG and Industries shall use their respective best
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efforts to cause Subsidiary to take all actions required to be taken by
Subsidiary under this Agreement and otherwise to comply with the terms hereof.
14. Waiver of Breach. The waiver by either party of a breach of any
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term of this Agreement shall not operate nor be construed as a waiver of any
subsequent breach thereof.
15. Notices. All notices, requests, demands, consents and other
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communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be not later
than the next business day if sent by overnight courier or after five business
days if sent by mail.
Unless otherwise notified by any of the parties, notices shall be sent
to the parties as follows:
To Industries: 20th Century Industries
301 Owensmouth Avenue
Woodland Hills, California 91367
Facsimile: (818) 715-6223
Attention: Chief Executive Officer
with a copy to: 20th Century Industries
6301 Owensmouth Avenue
Woodland Hills, California 91367
Facsimile: (818) 704-3061
Attention: General Counsel
To AIG: American International Group, Inc.
70 Pine Street
New York, New York 10270
Facsimile: 212-785-7564
Attention: Robert Sandler
with a copy to: American International Group, Inc.
70 Pine Street
New York, New York 10270
Facsimile: 212-785-1584
Attention: General Counsel
16. Captions. The captions or headings in this Agreement are for
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convenience and reference only, and no way define, describe, extend or limit the
scope or intent of this Agreement.
17. Severability. If any clause, provision or section of this
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Agreement shall be invalid, illegal or unenforceable, the invalidity, illegality
or unenforceability of such clause, provision or section shall not affect the
enforceability or validity of any of the remaining clauses, provisions or
sections hereof to the extent permitted by applicable law.
18. Governing Law. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of Arizona
without giving effect to conflicts of law principles.
19. Consent to Jurisdiction; Service of Process; Waiver of
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Jury Trial. (a) The parties to this Agreement hereby irrevocably submit to the
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exclusive jurisdiction of any Federal court located in Phoenix, Arizona, over
any suit, action or proceeding arising out of or relating to this Agreement. The
parties hereby irrevocably waive, to the fullest extent permitted by applicable
law, any objection which they may now or hereafter have to the laying of venue
of any such suit, action or proceeding brought in such court.
(b) The parties hereby irrevocably waive any rights they may have
in any court, state or federal, to a trial by jury in any case of any type that
relates to or arises out of this Agreement or the transactions contemplated
herein.
20. .Modification and Amendment. This Agreement may not be
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changed, modified, discharged or amended, except by an instrument signed by all
of the parties hereto.
21. Counterparts. This Agreement may be executed in counterparts,
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each of which shall be an original, but all of which together shall constitute
one and the same instrument.
22. Entire Agreement. This Agreement constitutes the entire
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and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
AMERICAN INTERNATIONAL
GROUP, INC.
By:
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Name: Robert Sandier
Title: Executive Vice President
20TH CENTURY INDUSTRIES
By:
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Name: William L. Mellick
Title: President and
Chief Executive Officer
Schedule I
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Representations and Warranties
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(a) AIG represents and warrants to Industries as of this date as
follows:
(i) AIG has the corporate power and authority to execute, deliver and
perform the transactions and operate the business contemplated by this
Agreement. The execution, delivery and performance of this Agreement and the
operation of Subsidiary as contemplated by this Agreement have been duly
authorized by all neces-sary proceedings on the part of AIG. The Agreement
constitutes a legal, valid and binding obligation of MG, enforceable against MG
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(ii) None of the execution, delivery or performance of this Agreement
or the operation of the business of Subsidiary as contemplated hereby will
result in any breach of, or constitute a default under, the charter or by-laws
of AIG, or any material agreement, instrument, judgment, decree, order, statute,
rule or regulation, applicable to MG, the violation of which could reasonably be
expected to affect adversely AIG's ability to perform its obligations under this
Agreement. MG is not, and the operation of the business of Subsidiary as
contemplated will not be, in violation of any term of its charter or bylaws, or
of any term of any material agreement, instrument, judgment, decree, order,
statute, rule or regulation applicable to it, the violation of which could
reasonably be expected to affect adversely AIG's ability to perform its
obligations under this Agreement. For purposes of this clause (ii), AIG includes
its direct and indirect subsidiaries and affiliates.
(b) Industries represents and warrants to AIG as of this date as
follows:
(i) Industries has the ,corporate power and authority to execute,
deliver and perform the transactions and operate the business contemplated by
this Agreement. The execution, delivery and performance of this Agreement and
the operation of Subsidiary as contemplated by this Agreement have been duly
authorized by all necessary proceedings on the part of Industries. The Agreement
constitutes a legal, valid and binding obligation of Industries, enforceable
against Industries in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(ii) None of the execution, delivery or performance of this Agreement
or the operation of the business of Subsidiary as contemplated hereby will
result in any breach of, or constitute a default under, the charter or bylaws of
Industries, or any material agreement, instrument, judgment, decree, order,
statute, rule or regulation, applicable to Industries, the violation of which
could reasonably be expected to affect adversely Industries' ability to perform
its obligations under this Agreement. Industries is not, and the operation of
the business of Subsidiary as contemplated will not be, in violation of any term
of its charter or by-laws, or of any term of any material agreement, instrument,
judgment, decree, order, statute, rule or regulation applicable to it, the
violation of which could reasonably be expected to affect adversely Industries'
ability to perform its obligations under this Agreement. For purposes of this
clause (ii), Industries includes its direct and indirect subsidiaries and
affiliates.