1
EXHIBIT 10.9
MARKETING AGREEMENT
between
AUTO-BY-TEL ACCEPTANCE CORPORATION
on the one hand,
and
AIU INSURANCE COMPANY
AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY
AMERICAN HOME ASSURANCE COMPANY
AMERICAN INTERNATIONAL INSURANCE COMPANY
AMERICAN INTERNATIONAL INSURANCE COMPANY OF CALIFORNIA, INC.
ILLINOIS NATIONAL INSURANCE COMPANY
MINNESOTA INSURANCE COMPANY
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
and
AUTO-BY-TEL, INC.
as Guarantor of the obligations of
AUTO-BY-TEL ACCEPTANCE CORPORATION
hereunder
2
TABLE OF CONTENTS
Page
----
1. REPRESENTATIONS AND WARRANTIES................................................2
Section 1.1 Representations and Warranties of ABTAC and ABT.................2
Section 1.2 Representations and Warranties of AIC...........................2
2. MARKETING ARRANGEMENT.........................................................3
Section 2.1 Phases of Marketing Arrangement.................................3
Section 2.2 Preparation of Marketing Materials..............................4
Section 2.3 Ownership of Marketing Materials................................4
Section 2.4 Development Costs...............................................4
3. COVENANTS, DUTIES AND RIGHTS OF AIC...........................................5
Section 3.1 Regulatory Authorizations.......................................5
Section 3.2 Initial Product Offering........................................5
Section 3.3 Low Cost Products...............................................5
Section 3.4 Reservation of Rights...........................................5
Section 3.5 Toll Free Number................................................5
Section 3.6 Cross-Promotion.................................................5
Section 3.7 Payment of Development Costs....................................6
Section 3.8 Books and Records: Auditing.....................................6
4. COVENANTS, DUTIES AND RIGHTS OF ABTAC AND ABT.................................6
Section 4.1 Insurance Marketing Materials...................................6
Section 4.2 Relationships with ABT Friends..................................6
Section 4.3 Hyperlink Development Costs.....................................7
Section 4.4 Cross-Promotion.................................................7
Section 4.5 Guarantee.......................................................7
Section 4.6 Additional Services.............................................7
5. [RESERVED]....................................................................7
6. EXCLUSIVITY...................................................................7
Section 6.1 Exclusivity.....................................................7
Section 6.2 Exception From Exclusivity......................................8
Section 6.3 AIC Marks.......................................................8
Section 6.4 ABT Marks.......................................................8
7. FIRST REFUSAL.................................................................8
Section 7.1 New Product.....................................................8
Section 7.2 Right of First Refusal..........................................8
8. COMPENSATION..................................................................8
i
3
Page
----
9. POLICIES.....................................................................9
Section 9.1 Product Control................................................9
Section 9.2 Underwriting and Administration................................9
Section 9.3 Policy and Quote Records.......................................9
Section 9.4 Billing........................................................9
Section 9.5 Authority as Insurance Provider................................9
Section 9.6 Privacy........................................................10
Section 9.7 Fair Credit Reporting..........................................10
10. CONFIDENTIALITY..............................................................10
Section 10.1 Confidential Information.......................................10
Section 10.2 Return of Confidential Information.............................10
Section 10.3 Survival of Confidentiality....................................10
11. USE OF NAMES/TRADEMARKS......................................................11
Section 11.1 Limitation on Use of AIC Marks.................................11
Section 11.2 Limitation on Use of ABT Marks.................................11
Section 11.3 Low Cost Logo..................................................11
Section 11.4 Use of User Data...............................................11
12. INDEPENDENT CONTRACTOR.......................................................11
Section 12.1 No Joint Venture...............................................11
Section 12.2 Limitations on Authority.......................................11
13. [RESERVED]...................................................................12
14. TERM AND TERMINATION.........................................................12
Section 14.1 Renewal........................................................12
Section 14.2 Cure Period....................................................12
Section 14.3 Termination Upon Insolvency....................................12
Section 14.4 Termination Upon Use of Marks..................................12
Section 14.5 Responsibilities Upon Termination..............................12
15. INDEMNIFICATION..............................................................13
16. NOTICES......................................................................13
Section 16.1 Legal and Regulatory Proceedings...............................13
Section 16.2 Addresses, etc.................................................13
17. MISCELLANEOUS................................................................13
Section 17.1 Choice of Law, Venue, Jurisdiction.............................13
Section 17.2 Assignment.....................................................13
Section 17.3 Modification; Waiver...........................................14
ii
4
Page
----
Section 17.4 Entire Agreement...............................................14
Section 17.5 Remedies.......................................................14
Section 17.6 References and Section Headings................................14
Section 17.7 Severability...................................................14
Section 17.8 Signatures and Recording.......................................14
-iii-
5
MARKETING AGREEMENT
THIS AGREEMENT is made as of July 22, 1996, between AUTO-BY-TEL
ACCEPTANCE CORPORATION ("ABTAC") a Delaware corporation, having its offices at
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the one
hand, and AIU INSURANCE COMPANY, AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY,
AMERICAN HOME ASSURANCE COMPANY, AMERICAN INTERNATIONAL INSURANCE COMPANY,
AMERICAN INTERNATIONAL INSURANCE COMPANY OF CALIFORNIA, INC., ILLINOIS NATIONAL
INSURANCE COMPANY, MINNESOTA INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
(collectively "AIC"), all member companies of American International Group, Inc.
having offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the other hand
and AUTO-BY-TEL, INC. ("ABT") a Delaware corporation, having its offices at ▇▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in its capacity
as Guarantor of ABTAC's obligations hereunder ("ABT").
W I T N E S S E T H:
WHEREAS, AIC underwrites private passenger automobile,
homeowner/tenant/condo, and personal umbrella liability insurance ("Products"),
as well as (directly or through its affiliates) the products ("Additional
Products") enumerated on Schedule A hereto and has experience in providing
direct response marketing; and
WHEREAS, AIC wishes to market Products, but primarily private
passenger automobile insurance, to users of ABT's Internet Website and those
Websites of its contractual partners which are approved by AIC from time to time
("Users"); and
WHEREAS, AIC and ABTAC share a common philosophy on delivering a
low-cost, high-quality program to Users; and
WHEREAS, AIG Marketing, Inc. ("AIGM") acts as a marketing group
for and on behalf of AIC and in such capacity has negotiated this Agreement on
behalf of AIC and will provide such services and compensation as set forth
herein; and
WHEREAS, ABT is engaged in the marketing of automobile pricing
and automobile buying services to Users via the Internet and ABTAC is a
wholly-owned subsidiary of ABT established to, among other things, enter into
arrangements pursuant to which Users are afforded the opportunity to enter into
transactions they may find beneficial; and
WHEREAS, ABT, through ABTAC, is desirous of authorizing and
providing AIC access to its Internet Server ("Server"); and
WHEREAS, AIC is desirous of securing access to the Server for the
publication, display and exhibition of AIC's direct response sales materials to
ABT Users.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, ABT, ABTAC and AIC agree as follows:
6
1. REPRESENTATIONS AND WARRANTIES.
Section 1.1 Representations and Warranties of ABTAC and ABT. Each of
ABTAC and ABT, as the case may be, hereby makes the following representations
and warranties to AIC:
(a) Each of ABT and ABTAC has been duly organized and is validly
existing as a corporation under the laws of the state of Delaware and each is
duly licensed where required as a "Licensee" or is otherwise qualified in each
state in which it transacts business and is not in default of such state's
applicable laws, rules and regulations, except where the failure to so qualify
or such default would not have a material adverse effect on its ability to
conduct its business or to perform its obligations under this Agreement.
(b) Each of ABT and ABTAC has the requisite power and authority and
legal right to execute and deliver this Agreement, engage in the transactions
contemplated by this Agreement, and perform and observe those terms and
conditions of this Agreement to be performed or observed by it hereunder. The
person or persons signatory to this Agreement and any document executed pursuant
to it on behalf of each of ABT and ABTAC have full power and authority to bind
either ABT or ABTAC, as the case may be. The execution, delivery and performance
of this Agreement, and the performance by each of ABT and ABTAC of all
transactions contemplated herein and therein, have been duly authorized by all
necessary and appropriate corporate action on the part of ABT and ABTAC, as the
case may be.
(c) This Agreement has been duly authorized and executed by each of ABT
and ABTAC and is valid, binding and enforceable against each of them in
accordance with its terms, except that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
(whether statutory, regulatory or decisional) now or hereafter in effect
relating to creditors' rights generally, and the execution, delivery and
performance by each of ABT and ABTAC of this Agreement do not conflict with any
term or provision of (i) its certificates of incorporation or bylaws, (ii) any
law, rule, regulation, order, judgment, writ, injunction or decree applicable to
ABTAC of any court, regulatory body, administrative agency or governmental body
having jurisdiction over either ABT or ABTAC or (iii) any agreement to which
either ABT or ABTAC is a party or by which its property is bound.
(d) No consent, approval, authorization or order of, registration or
filing with, or notice to any governmental authority or court is required under
applicable law in connection with the execution, delivery and performance by
either ABT or ABTAC of this Agreement.
(e) There is no action, proceeding or investigation pending or, to the
best knowledge of both ABT and ABTAC, threatened against either of them before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (iii) which could reasonably be
expected to materially and adversely affect the performance by either of them of
their respective obligations under, or the validity or enforceability of, this
Agreement.
(f) ABTAC or ABT, as the case may be, has all regulatory approvals,
authorizations, licenses, permits and other permissions, consents and
authorities whatsoever, as needed to operate the ABT Website.
(g) ABTAC or ABT, as the case may be, warrants that it has the legal and
valid right to use any registered or unregistered trademark, tradename, service
▇▇▇▇, logo, emblem or other proprietary designation, or any variations,
derivatives and modifications thereof, used by it in the Insurance Marketing
Materials as defined hereafter (the "ABT Marks")
Section 1.2 Representations and Warranties of AIC. AIC hereby makes the
following representations and warranties, to ABTAC:
2
7
(a) AIC is duly licensed where and as required in each state in which it
transacts business and is not in default of such state's applicable laws, rules
and regulations, except where such default would not have a material adverse
effect on the ability of AIC to conduct its business or to perform its
obligations under this Agreement.
(b) AIC has the requisite power and authority and legal right to execute
and deliver, engage in the transactions contemplated by, and perform and observe
the terms and conditions of, this Agreement. The person or persons signatory to
this Agreement and any document executed pursuant to it on behalf of AIC have
full power and authority to bind AIC. The execution, delivery and performance of
this Agreement, and the performance by AIC of all transactions contemplated
herein and therein, have been duly authorized by all necessary and appropriate
and corporate action on the part of AIC.
(c) This Agreement has been duly authorized and executed by AIC and is
valid, binding and enforceable against AIC in accordance with its terms, except
that such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws (whether statutory, regulatory or decisional)
now or hereafter in effect relating to creditors' rights generally, and the
execution, delivery and performance by AIC of this Agreement do not conflict
with any term or provision of the certificate of incorporation or bylaws of AIC,
or any law, rule, regulation, order, judgment, writ, injunction or decree
applicable to AIC of any court, regulatory body, administrative agency or
governmental body having jurisdiction over AIC.
(d) No consent, approval, authorization or order of, registration or
filing with, or notice to any governmental authority or court is required under
applicable law in connection with the execution, delivery and performance by AIC
of this Agreement.
(e) There is no action, proceeding or investigation pending or, to the
best knowledge of AIC, threatened against it before any court, administrative
agency or other tribunal (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, or (iii) which could reasonably be expected to materially and
adversely affect the performance by AIC of its obligations under, or the
validity or enforceability of, this Agreement.
(f) AIC warrants that it has all regulatory approvals, authorizations,
licenses, permits and other permissions, consents and authorities whatsoever, as
needed (i) to offer and sell the Products in each of the states (except for New
Jersey, Massachusetts, North Carolina, South Carolina and New Hampshire (the
"Excepted States")), territories and the District of Columbia of the United
States (the "Territory") and to otherwise perform its obligations under this
Agreement, and (ii) to use any Insurance Marketing Materials (as defined in
Section 2.2 of this Agreement) developed by AIC, or provided for inclusion in
any Insurance Marketing Materials developed jointly with ABTAC.
(g) AIC warrants that it has the legal and valid right to use any
registered or unregistered trademark, tradename, service ▇▇▇▇, logo, emblem or
other proprietary designation, or any variations, derivatives and modifications
thereof, used by it in the Insurance Marketing Materials as defined hereafter
(the "AIC Marks").
2. MARKETING ARRANGEMENT.
Section 2.1 Phases of Marketing Arrangement. ABTAC and AIC shall
cooperate to provide the means for Users interested in the Products to establish
contact with AIC and purchase Products in three phases as follows:
(a) "'Phase 1' - Toll Free Telephone Marketing" Users accessing the ABT
Website shall be able to click on an icon and access another page at the ABT
Website containing information about the Products as well as a toll free
telephone number. Users dialing the toll free number will be connected to AIC
3
8
employees who shall provide further information about the Products and take User
information in order to prepare a request for quote (an "RFQ"). AIC will
evaluate the RFQs for which they have received sufficient User information
(either on the first User call or after subsequent contact) and quote qualified
Users prices for the requested Products. Phase 1 shall commence approximately 30
days from the date of this Agreement and end when AIC and ABTAC agree that Phase
2 shall commence.
(b) "'Phase 2' - Electronic File Transfer" Users accessing the ABT
Website shall be able to click on an icon and access another page at the ABT
Website containing information about the Products as well as an RFQ which the
User can fill out and submit electronically. The ABT Website will forward the
RFQ files electronically to AIC. Upon receipt of the RFQ files, AIC employees
shall evaluate the RFQs for which they have received sufficient User information
(either at first or after subsequent contact) and quote any qualified User
prices for the requested Products. Phase 2 shall commence on such date as AIC
and ABTAC agree (cooperatively and in good faith) which date is expected to be
approximately 60 days from the date of the commencement of Phase 1
implementation. Phase 2 shall end when AIC and ABTAC agree that Phase 3 shall
commence.
(c) "'Phase 3' - Internet Hyperlink" Users accessing the ABT Website
shall be able to click on an icon and be hyperlinked to an AIC Website
containing information about the Products as well as an insurance RFQ which the
User can fill out and submit electronically. The AIC Website will evaluate the
RFQ file in real time (subject to System capabilities) and, if satisfactory
(either at first or after subsequent contact), will quote any qualified User
prices for the requested Products. Phase 3 shall commence on such date as AIC
and ABTAC agree (cooperatively and in good faith) which date is expected to be
prior to June 1, 1997.
Section 2.2 Preparation of Marketing Materials. (a) AIC and ABTAC shall
cooperate to prepare and produce (in each Phase of development) the Web page or
pages describing the Products on the ABT Website (the "Insurance info Pages"),
the Phase 2 ABT Website request for quote and electronic transfer mechanism, the
Phase 3 hyperlink and AIC Website request for quote, and all other marketing
materials (the "Collateral Materials") to be used to market and advertise the
Products or the Insurance Info Pages (the Insurance Info Pages and the Other
Materials, collectively, the "Insurance Marketing Materials").
(a) The content and form of the Insurance Marketing Materials must be
approved in writing by both AIC and ABTAC prior to use. Any modification in any
Insurance Marketing Materials shall be submitted by the party proposing the
modification to the other party in writing for approval. Unless the requested
modification is in any Insurance Marketing Material which is subject to any
filing or notice requirement with any governmental entity, which materials are
under the sole control of AIC, the party receiving such submission shall
preliminarily respond to the submitting party within two (2) business days of
receipt of such submission and shall deliver its final approval or disapproval
within five (5) business days of receipt of such submission. Approval of
requested modifications in Insurance Marketing Materials shall not be
unreasonably withheld or delayed. ABTAC acknowledges that any change in any
Insurance Marketing Materials subject to any filing or notice requirement with
any governmental entity may take considerable time to secure the required
approvals or to make the required filings. AIC acknowledges that the ABT Website
may (and is likely to) change from time-to-time in response to, among other
things, new display and/or hyperlink technologies, Internet server consolidation
or congestion, and changes in Internet providers.
Section 2.3 Ownership of Marketing Materials. Insurance Marketing
Materials shall be owned by ABT if provided by ABT, AIC if provided by AIC, and
by AIC if jointly produced. Ownership rights with respect to the AIC Marks and
the ABT Marks shall not be affected by this Section 2.3.
Section 2.4 Development Costs. AIC shall pay all reasonable
out-of-pocket costs for the development of the Insurance Marketing Materials;
provided, however, that the parties hereto agree that AIC's obligations to pay
for costs related to Phase I and Phase 2 shall not exceed in the aggregate fifty
thousand ($50,000) dollars.
4
9
3. COVENANTS, DUTIES AND RIGHTS OF AIC.
Section 3.1 Regulatory Authorizations. AIC shall, at its own cost and
expense, secure and maintain all regulatory approvals, authorizations, licenses,
permits and other permissions, consents and authorities whatsoever, as needed to
offer and sell the Products in the Territory ("Insurance Approval"). AIC shall
use its best efforts to either (i) secure Insurance Approval as needed to offer
and sell the Products in the Excepted States and the provinces of Canada, or
(ii) to establish relationships with insurance producers or underwriters in the
Excepted States and the provinces of Canada which will allow the offering and
sale of Products in such jurisdictions in a manner which, as closely as
possible, mirrors the offering and sale of Products in the Territory. AIC shall
give ABTAC written notice promptly upon securing Insurance Approval in any
Excepted State or province of Canada and thereafter for all purposes such
jurisdiction shall be considered part of the Territory. AIC shall be responsible
for all aspects of any relationship established pursuant to clause (ii) of the
second sentence of this Section 3.1, and all Products sold pursuant to any such
relationship shall, for all purposes of this Agreement, be considered Products
sold within the Territory.
Section 3.2 Initial Product Offering. AIC shall initially offer only
automobile insurance, but shall use its best efforts to offer all Products by
June, 1997. In addition, AIC will facilitate the development of plans to market
those Additional Products through marketing on the ABT Website, either directly,
or through relationships between ABTAC and AIC affiliates offering such
products, which such relationships shall be facilitated and established in
accordance with Section 3.6 of this Agreement.
Section 3.3 Low Cost Products. AIC shall offer low-cost, high-quality
Products to qualified Users. AIC shall not offer insurance products similar to
the Products at prices lower than those quoted for the Products to qualified
Users except through distribution channels with lower distribution and/or
acquisition costs to AIC. For purposes of this Section 3.3, the similarity of
the Products shall be determined on the basis of the coverage terms, limitations
and conditions and the price levels shall be determined on the basis of persons
of like underwriting profiles seeking similar insurance products.
Section 3.4 Reservation of Rights. (a) AIC reserves the right to
suspend, restrict or modify the offer and sale of the Products to accommodate
regulations; provided, however, that AIC shall use its best efforts to limit
such suspension, restriction or modification to the smallest scope possible (in
both qualitative and temporal terms) to enable ABTAC to realize the full
expectancy of this Agreement.
(b) AIC reserves the right to use the services of AIGM for various
marketing, servicing and administrative functions under this Agreement;
provided, however, that AIC shall remain responsible at all times for its
obligations under this Agreement.
Section 3.5 Toll Free Number. AIC shall secure and maintain at least one
toll free telephone number for use in Phase 1. AIC shall (i) inform ABTAC of
such number, (ii) use its best efforts not to change such number, and (iii)
devote sufficient numbers of its trained employees to the answering of such
number so that Users dialing the number have to wait, on average, no more than
three minutes to be connected to an employee who will take the User's RFQ and
provide any requested information. From the commencement of Phase 1, the toll
free number shall be so staffed no less than 12 hours per day on weekdays and
six (6) hours per day on Saturdays. AIC acknowledges that ABTAC believes that
the Internet is utilized most heavily during non-business hours and on weekends,
and therefore agrees that it shall perform test marketing of expanded hours for
the staffing of the toll free number.
Section 3.6 Cross-Promotion. AIC shall promote and advertise the ABT
Website on the Website of AIGM, and shall use its best efforts to promote and
advertise the ABT Website on the Websites of all AIC corporate affiliates and
all AIC affinity partners (collectively, the "AIC Friends") and to promote
recognition and awareness of the ABT Website via ongoing public relations
efforts. AIC shall use its best efforts to secure the cooperation of the AIC
Friends in ABTAC's development and implementation of hyperlinks between the
Websites of the AIC Friends, on the one hand, and the ABT Website, on the other.
AIC agrees to facilitate the development of relationships between AIC's
affiliates and ABTAC with respect to the marketing of
5
10
Additional Products or any other personal or commercial insurance products to
Users. Any compensation to be paid to ABTAC by the AIC affiliate offering such
products shall be mutually agreed upon by ABTAC and the related AIC affiliate.
Section 3.7 Payment of Development Costs. (a) AIC shall promptly, and in
any event, within 30 business days, pay ABTAC for any reasonable out-of-pocket
costs in connection with the development of the hyperlinks contemplated by Phase
3 and by Section 4.3 of this Agreement.
(b) AIC shall, subject to the reimbursement limit set forth in Section
2.4, promptly, and in any event, within 30 business days, pay ABTAC for any
reasonable out-of-pocket costs in connection with the development of the
electronic transmission mechanism contemplated by Phase 2.
Section 3.8 Books and Records: Auditing. (a) AIC shall keep complete and
accurate records of all of its activities under this Agreement at the address
specified in Section 16.2 of this Agreement. AIC shall, no later than the 30th
day of each month, deliver to ABTAC (i) the amounts to which ABTAC is entitled
pursuant to Section 8 of this Agreement, and (ii) a report setting forth the
amounts to be paid to ABTAC hereunder, accompanied by detail sufficient to
permit ABTAC to determine the basis of the computation and the accuracy of the
amount, together with a list of all Users of ABT's Website which have contacted
AIC through the toll free number provided on ABT's Website and such other
information as ABTAC shall reasonably request from time to time in order to
monitor the performance of this Agreement. Subject to the provisions of the
Insurance Information and Privacy Protection Model Act, as enacted in various
states (as so enacted, the "Privacy Act"), all records maintained by AIC related
to this Agreement shall be open to inspection and copying by ABTAC's employees,
agents, attorneys, accountants or other authorized representatives at reasonable
times during normal business hours.
(b) ABTAC may also appoint public accountants of its choice, and at its
sole expense, for the purpose of auditing AIC's performance of its obligations
under this Agreement and AIC agrees to grant such accountants access to all
records necessary to determine the compliance of AIC with the compensation
provisions of this Agreement. If the results of such audit reveal a discrepancy
between the amounts paid by AIC hereunder and the amounts which should have been
paid hereunder, then the appropriate payments shall be made (i) if to ABTAC,
immediately, and (ii) if to AIC, by the withholding of 1/12 of such amount from
the payments to be made to ABTAC over the succeeding twelve months. If the
discrepancy is in ABTAC's favor and exceeds $100,000, then AIC shall reimburse
ABTAC for the full cost of the audit.
4. COVENANTS, DUTIES AND RIGHTS OF ABTAC AND ABT.
Section 4.1 Insurance Marketing Materials. ABTAC shall maintain the
Insurance Marketing Materials (as available) at the ABT Website.
Section 4.2 Relationships with ABT Friends. ABT and ABTAC shall use best
efforts to establish and maintain relationships with major automobile-related
products and service providers on the Internet (such entities with which ABT or
ABTAC has established such relationships, the "ABT Friends") such as, among
others, Edmund's, Microsoft, Auto-Site and ▇▇▇▇▇ Blue Book which relationships
may include toll free "800" numbers and/or hyperlinks with the Websites of the
ABT Friends to the ABT Website allowing users at ABT Friends' Websites to link
to the ABT Website and view the Insurance Marketing Materials and/or hyperlinks
between the Websites of those ABT Friends approved in advance by AIC with the
Website of AIGM. If ABTAC proposes to establish a hyperlink between the Website
of AIGM and that of any ABT Friend, it shall submit such proposal to AIC in
advance for approval. AIC shall preliminarily respond to ABTAC within two (2)
business days of receipt of such submission and shall deliver its final approval
or disapproval within five (5) business days of receipt of such submission.
Approval of such proposed hyperlinks shall not be unreasonably withheld. AIC and
ABTAC agree that (i) any compensation to be paid to any ABT Friends in
connection with any relationship with respect to users at or originating at
their Websites shall be solely the responsibility of ABTAC and (ii) any such
users shall be considered Users for all purposes under this Agreement.
6
11
Section 4.3 Hyperlink Development Costs. (a) ABTAC shall use its best
efforts to develop and implement the electronic transfer mechanism necessary for
Phase 2 and the hyperlink necessary for Phase 3.
(b) ABTAC shall use its best efforts to develop and implement hyperlinks
between the Websites of the AIC Friends and that of ABT to allow users of the
Websites of the AIC Friends to link to the ABT Website.
(c) ABTAC shall, no less frequently than monthly and no more frequently
than weekly (and in connection with the electronic transfer mechanism necessary
for Phase 2, subject to the reimbursement limit set forth in Section 2.4),
submit to AIC for reimbursement ABTAC's out-of-pocket expenses incurred in
connection with this Section 4.3, such submission to be accompanied by detail
sufficient to permit AIC to determine the basis of the computation and the
accuracy of the amount claimed. Such reimbursement shall be made by AIC within
30 days of receipt of the related request.
Section 4.4 Cross-Promotion. ABTAC shall promote and advertise the ABT
Website through Internet search engines and other public mass media and to
promote recognition and awareness of the ABT Website via ongoing public
relations efforts.
Section 4.5 Guarantee. ABT hereby unconditionally and irrevocably
guarantees to AIC, its successors, endorsees and assigns, the performance when
due of all present and future obligations and liabilities of all kinds of ABTAC
arising out of or in connection with this Agreement, whether due or to become
due, secured or unsecured, absolute or contingent, joint or several
("Obligations"). The Guarantor agrees that AIC and ABTAC may mutually agree to
modify the Obligations or any agreement between AIC and ABTAC without in any way
impairing or affecting this Guarantee.
Section 4.6 Additional Services. ABTAC hereby agrees that it shall
provide AIC, upon request of AIC, the following additional services:
(a) Consulting services concerning marketing of automobile insurance
to ABT Users;
(b) Data concerning persons requesting the Phase 1 toll free number
directly from ABT corporate offices;
(c) E-Mail monitoring and consulting service in respect of and
during Phase 3;
(d) Hyperlink monitoring and consulting service in respect of and
during Phase 3;
(e) Access to officers of ABT for Internet marketing trend updates;
and
(f) Icon design consulting services for AIGM Website.
5. [RESERVED]
6. EXCLUSIVITY.
Section 6.1 Exclusivity. (a) The parties hereto shall have an exclusive
arrangement for the first 18 months of the Initial Term (as defined in Section
14.1 of this Agreement) (such first 18 months, the "Initial Exclusivity
Period") whereby ABT and ABTAC, separately or together, shall not provide
Website access to any other underwriter of Products and whereby AIC shall not
market Products with any other Internet automobile buying program, automobile
purchase assistance or financing program, automobile pricing service, vehicle
information service or on-line service including, among others both existing and
to be created or initiated, America On-Line, Microsoft, Prodigy, CompuServe and
NetCom (collectively, "Internet Auto Providers"). The exclusivity of this
Agreement shall automatically continue for a 12 month period beyond the Initial
Exclusivity Period, and thereafter for successive 12 month periods, unless one
party shall give the other party written
7
12
notice not less than 60 days prior to the end of the Initial Exclusivity Period
or the then current 12 month exclusivity period, as the case may be, that the
exclusivity shall end at the end of the Initial Exclusivity Period or the then
current 12 month exclusivity period, as the case may be.
(b) After the termination of the exclusivity of this Agreement, if
either party uses the "Prohibited Marketing Term" ascribed to it in this clause
(b), the other party shall have the right, but not the obligation, to terminate
this Agreement upon 30 days written notice. With respect to AIC, the Prohibited
Marketing Term shall be "[x] Low Cost Auto Insurance [y]" where "x" is the name
of any Internet Auto Provider, and "y" is the name of AIC or any affiliate
thereof or any variation thereon which conveys or links "x," "y" and the term
Low Cost within any logo, service ▇▇▇▇, trademark or icon. With respect to ABTAC
or ABT, the Prohibited Marketing Term shall be "ABT Low Cost Auto Insurance [y]"
where "y" is the name of any underwriter of Products except AIC or any affiliate
thereof which conveys or links ABT or any affiliate thereof to "y" and the term
Low Cost within any logo, service ▇▇▇▇, trademark or icon.
Section 6.2 Exception From Exclusivity. AIC's relationship with United
Buying Services, Inc., as in effect on the date of this Agreement, is exempt
from the provisions of Section 6.1 of this Agreement.
Section 6.3 AIC Marks. If, either in conjunction with a properly noticed
termination of exclusivity or at any time after such notice is delivered, AIC
intends to use any AIC Marks in conjunction with the offering or sale of
Products through any Internet Auto Providers, then AIC must give ABTAC 30 days
prior written notice thereof.
Section 6.4 ABT Marks. If, either in conjunction with a properly noticed
termination of exclusivity or at any time after such notice is delivered, ABT or
ABTAC intends to use any ABT Marks in conjunction with the marketing of any
Products outside of the terms of this Agreement, then ABTAC must give AIC 30
days prior written notice thereof.
7. FIRST REFUSAL.
Section 7.1 New Product. In the event that either (i) an insurer or
entity other than AIC or any of its affiliates (a "Competing Insurer") proposes
a program to offer on the ABT Website any personal or commercial insurance other
than the Products offered pursuant to this Agreement (a "New Product") or (ii)
ABTAC wishes to market a New Product through a Competing Insurer, then ABTAC
shall immediately give AIC written notice of such New Product and the related
terms (the "New Product Notice").
Section 7.2 Right of First Refusal. ABTAC hereby grants to AIC the right
of first refusal to offer such New Product to ABT's Users on terms no less
favorable to ABTAC or ABT's Users than those proposed by the Competing Insurer.
AIC shall be obligated to respond with its intent to ABTAC within 10 business
days after its receipt of the New Product Notice. If AIC does not respond within
such period, ABTAC may market such New Product on terms no less favorable than
those set forth in the related New Product Notice.
8. COMPENSATION.
During the term of this Agreement, for the services to be
performed by ABTAC hereunder (except for those services under Section 4.6
hereof), ABTAC shall be paid compensation by AIC calculated in accordance with
Schedule B attached hereto and made a part hereof. All payments due ABTAC
hereunder shall be made within thirty (30) days after the end of the month they
become due. For the services to be
8
13
performed by ABTAC under Section 4.6 hereof, ABTAC shall be paid by AIC
compensation for each year (or portion thereof) by August 31 of such year in an
amount to be determined in good faith discussions to be held between AIC and
ABTAC based on the value of such services.
9. POLICIES.
Section 9.1 Product Control. Subject to its obligations under Section
3.3 hereof to offer low-cost insurance products, AIC reserves the sole right and
power, exercisable in good faith at any time, to change the terms, rates,
conditions, or other provisions contained in the Products or to reject requests
for quotes for the Products or to rescind or refuse to renew or cancel any
policy issued hereunder, in accordance with AIC's underwriting standards, except
as may be limited by the terms of the policies or by applicable law or
regulation. AIC further reserves the sole right and power to change its
underwriting standards for the Products in accordance with sound insurance
practices consistent with AIC's normal business practices and subject to
applicable insurance law and further to suspend, restrict or modify the offer
and sale of the Products for regulatory reasons. AIC shall inform ABTAC in
writing promptly upon its taking any action under this Section 9.1. In the event
AIC suspends the offer and sale of Products (or so restricts or modifies such
offer and sale so as to render the Products unavailable to the majority of Users
previously qualified for such Products on the terms and conditions previously
offered) in any jurisdiction or area within the Territory, it shall use its best
efforts to make provision for the offer and sale by another underwriter of
Products in such jurisdiction or area in a manner which minimizes the effect of
such suspension upon the orderly marketing of the Products in such jurisdiction
or area, and maximizes the expectancy of ABTAC under this Agreement. If AIC has
not made such provision within 10 days of any such suspension, ABTAC shall be
entitled to establish a relationship with another underwriter of Products in
such jurisdiction or area, such relationship to be for a term not to exceed
twelve months, and shall be entitled to make such agreements as necessary to
secure such relationship, including the use of a Prohibited Marketing Term (in
connection with the offering and sale of Products in such jurisdiction or area),
and no aspect of such relationship or agreements shall give rise to any rights
of AIC under this Agreement.
Section 9.2 Underwriting and Administration. AIC shall, at its expense,
provide all underwriting, policy issuance services, policyholder services,
premium disbursement and accounting services, premium collection, claims
adjustment, and all other administrative services required for policies issued
pursuant to this Agreement.
Section 9.3 Policy and Quote Records. All policy and quote records for
the policies issued hereunder shall be the property of AIC. Policy records shall
include but not be limited to all policy requests for quotes, policy
declarations pages, policy underwriting files and policy claim files, or
computer data files containing such information.
Section 9.4 Billing. AIC shall be responsible for the billing and
collection of insurance premiums from all Users who purchase insurance under
this Agreement.
Section 9.5 Authority as Insurance Provider. Nothing in this Agreement
shall be construed to mean that either ABT or ABTAC is a broker or an agent, and
in no event shall either ABT or ABTAC have any authority or represent itself as
having authority other than as is specifically set forth in this Agreement.
Without limiting the generality of the foregoing, neither ABT nor ABTAC shall do
any of the following:
(a) Attempt to or make, waive, alter or change any term, rate or
condition stated in any AIC policy, contract or AIC approved form; bind
coverage; or discharge any contract in the name of AIC.
(b) Offer to pay or pay directly or indirectly any rebate of premiums or
any other inducement not specified in the policy to any person.
9
14
(c) Transact business in contravention of the rules and regulations of
an Insurance Department and/or other governmental authorities having
jurisdiction of all subject matters embraced within this Agreement.
Section 9.6 Privacy. (a) ABTAC recognizes that, in the performance of
its obligations under this Agreement, if permitted by the Privacy Act and other
applicable laws, AIC may disclose personal or privileged information about
individuals collected or received in connection with insurance transactions.
Since the disclosure of such information is protected by law, ABTAC agrees that
it will not redisclose any such privileged information of which ABTAC has actual
notice without the individual's written authorization, unless such disclosure is
permitted by law.
(b) ABT and ABTAC represents and warrants to AIC that neither ABT nor
ABTAC shall use such information as is disclosed by AIC pursuant to Section
9.6(a) other than in connection with the marketing of a product or service.
Section 9.7 Fair Credit Reporting. Nothing herein shall be construed to
require or imply that AIC is required to provide User information to ABT or
ABTAC in contravention of the Fair Credit Reporting Act (the "FCRA"). AIC is not
a "consumer reporting agency" as defined in the FCRA.
10. CONFIDENTIALITY.
Section 10.1 Confidential Information. In performing their obligations
pursuant to this Agreement, the parties may be provided access to and receive
disclosure of certain confidential and/or proprietary information about the
other including but not limited to names of Users, information provided by Users
to AIC for the purpose of obtaining an insurance quotation, names of
policyholders, marketing philosophy and objectives, financial results,
technological developments, computer system information (including information
provided in connection with the development of the Phase 2 and Phase 3
applications and links), trade secrets, and other materials and information that
such party considers confidential and/or proprietary ("Confidential
Information"). Unless expressly provided otherwise in this Agreement, AIC, ABT
and ABTAC agree not to give, sell, or in any way transfer, either directly or
indirectly, Confidential Information to any person or organization for any
purpose without the prior written approval of the other, except as may be
required by law, rule or regulation (including any filings under any securities
law) or court order. Notwithstanding anything to the contrary herein, AIC, ABT
and ABTAC may use Confidential Information for market research purposes upon
written consent from the other party, to the extent permissible by law. AIC, ABT
and ABTAC promise to make best efforts to see that all parties including
employees comply with this provision. These obligations as to confidentiality
and nonuse shall survive the termination of this Agreement.
Section 10.2 Return of Confidential Information. Except as otherwise
herein provided, all Confidential Information furnished by one party to the
other in connection with this Agreement is the exclusive property of that party
and shall be returned to that party upon request or upon termination of this
Agreement.
Section 10.3 Survival of Confidentiality. All obligations and duties of
the parties with respect to Confidential Information shall survive for five
years after the termination of this Agreement. Confidential Information shall no
longer be considered Confidential Information to the extent that such
information (a) is developed by a party independently, without reference to any
Confidential Information of the other party's; (b) is obtained from a third
party authorized to disclose it; (c) becomes a part of the public domain without
the fault of the disclosing party; (d) is released by the disclosing party to
third parties without similar restrictions; or (e) is released from such
restrictions by prior written agreement.
10
15
11. USE OF NAMES/TRADEMARKS.
Section 11.1 Limitation on Use of AIC Marks. (a) ABTAC agrees that
neither it nor ABT shall use the AIC Marks without AIC's prior written consent.
(b) AIC hereby grants to ABT and ABTAC a limited license to use and
reproduce any AIC ▇▇▇▇ approved in accordance with Sections 2.2(b) and 11.1 (a)
of this Agreement, in connection with the marketing arrangements set forth in
this Agreement and for no other purpose, and hereby agrees to provide ABT and
ABTAC, for the sole purpose of marketing the Products, acceptable copies of the
appropriate AIC Marks for purposes of reproduction.
(c) For so long as AIC or one of its affiliates has the right to use the
▇▇▇▇ "AIG," AIC shall permit ABTAC to use the term "Auto-By-Tel Low Cost Auto
Insurance From AIG" in marketing the Products during the term of this Agreement;
provided however that the permission granted hereby shall not diminish AIC's
rights to approve the form and content of any Insurance Marketing Materials
pursuant to Section 2.2(b) hereof.
Section 11.2 Limitation on Use of ABT Marks. (a) AIC agrees that it
shall not use the ABT Marks without ABTAC's prior written consent.
(b) ABTAC hereby grants to AIC a limited license to use and reproduce
any ABT ▇▇▇▇ approved in accordance with Sections 2.2(b) and 11.2(a) of this
Agreement, in connection with the marketing arrangements set forth in this
Agreement and for no other purpose, and hereby agree to provide AIC, for the
sole purpose of marketing the Products, acceptable copies of the appropriate ABT
Marks for purposes of reproduction.
Section 11.3 Low Cost Logo. The "Auto-By-Tel; Low Cost Auto Insurance
Through [NAME OF PROVIDER]" logo, and all variations and derivatives shall
remain the exclusive property of ABTAC; provided, however, that such logo shall
not refer to AIC after the termination of this Agreement.
Section 11.4 Use of User Data. Notwithstanding anything in this
Agreement to the contrary, AIC shall give to ABT and ABTAC User information
subject to Sections 9.6 and 9.7 which may be used by ABT and ABTAC in any lawful
manner, including for solicitation of such Users for financial products marketed
through the ABT Website, automobile pricing, purchasing, leasing and information
services offered or marketed through the ABT Website and any affinity programs
in which ABT or ABTAC may participate. The ownership interest in such User data
shall be held by AIC. Neither ABT nor ABTAC is an agent for purposes of
collection of insurance data.
12. INDEPENDENT CONTRACTOR.
Section 12.1 No Joint Venture. Nothing contained in this Agreement
creates or is intended to create the relationship of a joint venture,
partnership, agency or association between AIC and ABTAC. Nothing in this
Agreement shall be construed to mean that either ABT or ABTAC is a broker or an
agent, and in no event may ABTAC bind AIC to any contract of insurance or vary
the terms of any such contract, nor may AIC bind ABT or ABTAC to any
relationship or vary the terms of any agreement between ABT or ABTAC and any
third party.
Section 12.2 Limitations on Authority. Each of AIC, ABT and ABTAC shall
have only those powers enumerated herein and none other shall be implied.
Without limiting the generality of the foregoing, neither AIC, ABT nor ABTAC
shall do any of the following:
(a) Make, accept or endorse notes, endorse checks payable to the other
party, or otherwise incur any expense or liability on behalf of the other party.
(b) Waive a forfeiture.
11
16
(c) Extend the time for the payment of monies due the other party beyond
the time agreed to by the other party.
(d) Collect money for the other party.
(e) Institute, prosecute, or maintain any legal proceedings in
connection with any matter pertaining to the other party's business, unless
otherwise approved in writing by the other party, nor accept legal process on
behalf of the other party.
(f) Hold itself out as an authorized agent of the other party in order
to deal with any regulatory authority or file any contract or policy on behalf
of the other party or contact or discuss any matter with any regulatory
authority on behalf of the other party without written approval of that party.
13. [RESERVED]
14. TERM AND TERMINATION.
Section 14.1 Renewal. This Agreement shall remain in effect for a period
of five (5) years from the effective date ("Initial Term"). This Agreement shall
automatically renew for subsequent five-year terms ("Renewal Term") unless
written notice is given by either party of its intention to terminate this
Agreement at the expiration of the Initial Term or any Renewal Term, as the case
may be, at least one hundred eighty (180) days prior to such expiration. This
Agreement shall also terminate if required by governmental authority or court of
law, but only insofar as this Agreement applies to such jurisdiction affected.
Section 14.2 Cure Period. If any party shall be in breach of any
material obligation under this Agreement and such breach shall remain uncured
for a period of thirty (30) days after written notice thereof from the other
party (or, if such breach is curable and requires more than thirty (30) days to
cure, if such cure is not commenced within thirty (30) days and thereafter
diligently prosecuted), then the other party may, by written notice sent, cancel
this Agreement upon 30 days after delivery of such notice. Non-payment of
amounts due under this Agreement shall be deemed to be a breach of a material
obligation hereunder, but institution of suit for payment of amounts due under
this Agreement shall not be deemed to be a cancellation hereunder. This Section
14.2 shall not apply to termination pursuant to Section 14.3 or Section 14.4 of
this Agreement.
Section 14.3 Termination Upon Insolvency. At any party's option, and
upon written notice of exercise of the option, this Agreement terminates upon
the voluntary or involuntary bankruptcy or insolvency of a party, the voluntary
or involuntary dissolution or liquidation of a party, the admission in writing
by a party of its inability to pay its debts as they mature, or the assignment
by a party for the benefit of creditors.
Section 14.4 Termination Upon Use of Marks. If any party shall give
notice to the other, under Section 6.1(b), then the Agreement shall terminate 30
days after receipt of such notice.
Section 14.5 Responsibilities Upon Termination. The termination of this
Agreement shall not terminate, affect, or impair any rights, obligations, or
other liabilities of any party hereto which may accrue prior to such termination
or which, under the terms of this Agreement, continue after the termination.
After termination of this Agreement, coverage under the insurance policies
issued hereunder shall continue pursuant to their terms. Ownership of all
renewals written after termination of this Agreement shall at all times remain
with AIC. Each party shall return all property and information rightfully
belonging to the other party which is in its possession at the time of
termination except as otherwise provided herein. The provisions of this
Paragraph 14.5 shall survive termination of this Agreement.
12
17
15. INDEMNIFICATION.
Each party shall hold the other (and its directors, officers, employees
and authorized agents) harmless from and against any damages, liabilities,
claims, charges, reasonable attorneys' fees, or other costs arising from or in
connection with any claim, action, or proceeding relating to or arising from (a)
any grossly negligent act or omission or any intentional misconduct relating to
the subject matter of this Agreement or (b) the failure to comply with the terms
of this Agreement. The provisions of this Section 15 shall survive the
termination of this Agreement.
16. NOTICES.
Section 16.1 Legal and Regulatory Proceedings. Each party shall promptly
notify the others of any legal or regulatory proceeding or threat of legal or
regulatory proceeding with respect to any matters which are the subject of this
Agreement, except AIC shall have no obligation to notify ABTAC of legal
proceedings involving claims under the Products.
Section 16.2 Addresses, etc. All notices pursuant to this Agreement
shall be by facsimile transmission, by personal delivery, or by registered or
certified mail, return receipt requested, to the addresses of the parties listed
below, or such other address as any party listed below shall specify in writing
to the others in a notice conforming to this Section 16.2:
If to AIC: AIG MARKETING, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
President,
or his successor
If to ABTAC: AUTO-BY-TEL ACCEPTANCE CORPORATION
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇,
President,
or his successor
with copies to ▇.▇. ▇▇▇▇▇▇ & CO.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President,
or his successor
17. MISCELLANEOUS.
Section 17.1 Choice of Law, Venue, Jurisdiction. This Agreement shall be
governed by the internal laws of the State of New York. The parties agree that
any action in law or in equity brought under this Agreement shall be brought
only in a state or federal court seated in New York County, New York, and each
party hereto consents to the exclusive jurisdiction of such court and venue of
such action.
13
18
Section 17.2 Assignment. Without the prior written consent of the other
party, which consent shall not be unreasonably withheld, this Agreement may not
be assigned in whole or in part by any party other than to an affiliate and
subsidiary (provided (A) such affiliate or subsidiary (i) shall agree in writing
to be bound by the terms of this Agreement and (ii) has a net worth immediately
following the assignment equal to or greater than that of the assignor, and (B)
the assignor gives written assurances that it will cause the assignee to perform
as contained herein or the assignor will perform in the assignee's place).
Notwithstanding the foregoing, ABTAC may assign this Agreement to ABT or any
wholly owned subsidiary of ABT or ABTAC, provided, however, that the guarantee
of ABT pursuant to Section 4.5 herein shall apply as to such subsidiary assignee
in the same manner as it applied to ABTAC.
Section 17.3 Modification; Waiver. This Agreement may only be revised
and/or modified in a writing which must be executed by each of the parties to
this Agreement. No other change, modification, addition, or deletion to any
portion of this Agreement will be valid or binding upon any of them.
Section 17.4 Entire Agreement. This Agreement constitutes the entire
Agreement between the parties with respect to the subject matter contained
herein and supersedes all oral or written negotiations of the parties.
Section 17.5 Remedies. All remedies of any party are cumulative. Waiver
by any party of any obligation of any other party does not constitute waiver of
any future or other obligation of said party.
Section 17.6 References and Section Headings. Any reference to the
singular shall include reference to the plural and vice versa. Section headings
are for description only and shall not be used to interpret this Agreement.
Section 17.7 Severability. If any part, term, or provision of this
Agreement shall be held void, illegal, or unenforceable, the validity of the
remaining portions or provisions shall not be affected thereby.
Section 17.8 Signatures and Recording. This Agreement shall not go into
force until duly executed on behalf of ABTAC, ABT and AIC. Each party represents
and warrants that each of the respective officers executing this Agreement on
its behalf is duly authorized by its Board of Directors and is acting within the
scope of his or her authority to bind said party under this Agreement.
14
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
below through their duly authorized officers as of the date first above written.
AIU INSURANCE COMPANY
AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY
AMERICAN HOME ASSURANCE COMPANY
AMERICAN INTERNATIONAL INSURANCE COMPANY
AMERICAN INTERNATIONAL INSURANCE COMPANY OF CALIFORNIA, INC.
ILLINOIS NATIONAL INSURANCE COMPANY
MINNESOTA INSURANCE COMPANY
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
AUTO-BY-TEL ACCEPTANCE CORPORATION
By:
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
AUTO-BY-TEL, INC., as Guarantor
By:
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
15
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
below through their duly authorized officers as of the date first above written.
AIU INSURANCE COMPANY
AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY
AMERICAN HOME ASSURANCE COMPANY
AMERICAN INTERNATIONAL INSURANCE COMPANY
AMERICAN INTERNATIONAL INSURANCE COMPANY OF CALIFORNIA, INC.
ILLINOIS NATIONAL INSURANCE COMPANY
MINNESOTA INSURANCE COMPANY
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
By:
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
AUTO-BY-TEL ACCEPTANCE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
AUTO-BY-TEL, INC., as Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
15
21
[*]
[*] Confidential Treatment Requested
AMERICAN INTERNATIONAL COMPANIES
c/o AIG Marketing, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
July 23, 1996
Auto-By-Tel, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇, President
----------
Re: Marketing Agreement between Auto-By-Tel Acceptance Corporation on the
one hand, and AIU Insurance Company, American International South
Insurance Company, American Home Assurance Company, American
International Insurance Company, American International Insurance
Company of California, Inc., Illinois National Insurance Company,
Minnesota Insurance Company, National Union Fire Insurance Company of
Pittsburgh, PA and The Insurance Company of the State of Pennsylvania
on the other hand, and Auto-By-Tel, Inc. as Guarantor of the
obligations of Auto-By-Tel Acceptance Corporation dated as of July 22,
1996 (the "Marketing Agreement")
----------------------------------------------------------------------
Gentlemen:
Reference is made to Section 8 of the above-referenced Marketing
Agreement. Capitalized terms used herein and in the attached Schedule A, and not
defined herein or therein, shall have the meanings ascribed thereto in the
Marketing Agreement. This will confirm our agreement that compensation to be
paid for the services provided to AIC pursuant to Section 4.6 of the Marketing
Agreement shall be calculated and paid in accordance with the attached Schedule
A on or before August 31, 1997, and on each August 31st thereafter for as long
as the Marketing Agreement is in effect. Please confirm that this represents our
understanding with respect to the foregoing matter by executing a copy of this
letter in the space provided below and returning to the undersigned.
Best regards.
Very truly yours,
AIU INSURANCE COMPANY
AMERICAN INTERNATIONAL SOUTH
INSURANCE COMPANY
AMERICAN HOME ASSURANCE
COMPANY
AMERICAN INTERNATIONAL
INSURANCE COMPANY
AMERICAN INTERNATIONAL
INSURANCE COMPANY OF CALIFORNIA,
INC.
ILLINOIS NATIONAL INSURANCE
COMPANY
MINNESOTA INSURANCE COMPANY
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
THE INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
22
cc: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CONFIRMED AS OF JULY 24, 1996
AUTO-BY-TEL ACCEPTANCE CORP.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇, President
-2-
SCHEDULE A
In any calendar year in which collected premium with respect to all
policies written in connection with the marketing arrangements exceeds five
hundred thousand (500,000.00) dollars, and the loss ratio is less than or equal
to the target loss ratio AIC shall pay ABTAC additional compensation, as set
forth below, based upon statutory profit as determined by "losses" and "loss
ratio" as defined below.
Losses: that amount which with respect to claims with occurrence dates
during any specified calendar year (hereinafter referred to as "Calendar
Accident Year") is the total of:
1) all payments of such claims;
2) the amount of case reserves on such claims;
3) a reasonable (in light of AIC practices in its other similar
portfolios) provision for future development of case reserves on such claims;
4) a reasonable (in light of AIC practices in its other similar
portfolios) provision for payment of such claims incurred but not yet reported
to the insurance company;
5) a reduction for salvage and subrogation payments, received or
receivable, resulting from all claims;
6) the amount of loss adjustment expenses (the reasonable and customary
costs associated with the defense and/or settlement of a claim, except for the
claim payment itself) incurred or reasonably anticipated;
7) a residual market subsidy based on the proportional state-by-state
distribution of the business in relation to residual market deficits;
8) a loss carryover provision which consists of the dollar amount by
which the loss ratio percentage exceeds the target loss ratio in the preceding
Calendar Accident Year calculation. This carryover will be restated each time
the preceding Calendar Accident Year is adjusted in accordance with the payment
cycle set forth below. Bad faith claim payments are specifically excluded from
the definition of Losses.
Loss Ratio: a fraction with the numerator being the sum of the losses,
and the denominator being the corresponding earned premium with respect to the
specified Calendar Accident Year, rounded to the nearest one tenth percent.
Target: a loss ratio calculated for each applicable Calendar Accident
Year which is derived by weighing 81.0% with that year's private passenger
automobile earned premium and 69.0% with that year's combined homeowners and
personal umbrella liability earned premium. This calculation is rounded to the
nearest percent.
Schedule A-1
23
ADDITIONAL COMPENSATION CHART
-----------------------------
Loss Ratio* Additional Compensation
----------- -----------------------
Target and Higher 0%
(Target - 1.0%) to (Target - 0.1%) .25%
(Target - 2.0%) to (Target - 1.1%) .50%
(Target - 3.0%) to (Target - 2.1%) .75%
(Target - 4.0%) to (Target - 3.1%) 1.00%
(Target - 5.0%) to (Target - 4.1%) 1.25%
(Target - 6.0%) to (Target - 5.1%) 1.50%
(Target - 7.0%) to (Target - 6.1%) 1.75%
(Target - 7.1%) and Lower 2.00%
* The endpoints of each range are included in the range.
AIC shall, if appropriate, pay the additional compensation to ABTAC based
on an initial calculation and three subsequent adjustments for each Calendar
Accident Year to reflect the ultimate development of losses and over-reserves,
as applicable. The first Calendar Accident Year will begin on January 1, 1996
and end on December 31, 1996. Subsequent Calendar Accident Years will run
similarly.
The initial calculation for each Calendar Accident Year will be made in the
18th month after the beginning of a Calendar Accident Year based on inception to
date of evaluation losses for that Calendar Accident Year and the additional
compensation shall be paid in accordance with the Additional Compensation Chart,
if appropriate, by August 31st of the year in which the calculation is made. The
first adjustment to the initial calculation for each Calendar Accident Year will
be made in the 30th month after the beginning of such Calendar Accident Year
based on inception to date of evaluation losses for such Calendar Accident Year.
In the event the first adjustment indicates overpayment in the initial
calculation of a Calendar Accident Year, the amount of overpayment will be
deducted from additional compensation due for other Calendar Accident Years and,
if not sufficient, the remaining overpayment will be deducted from current
compensation under the Marketing Agreement. In the event the first adjustment
indicates underpayment in the initial calculation of a Calendar Accident Year,
such payment shall be made by August 31st of the year in which the first
adjustment is made.
The second and third adjustments for each Calendar Accident Year will be
made in the 42nd month and 54th month, respectively, after the beginning of a
Calendar Accident Year based on the same criteria as the first adjustment, and
payments will be deducted or made in accordance with the procedure established
for the first adjustment.
In the event the Marketing Agreement is terminated, all rights to payments
of additional compensation amounts shall terminate.
Schedule A-2
24
SCHEDULE A
ADDITIONAL PRODUCTS
AIG Life Division
Mega Term (High Limit Term Life)
Graded Premium Life
Senior Life
Birthday Life
Whole Life
Universal Life
Survivorship Universal Life
Fixed Annuities
Variable Annuities
Variable Life
AIG A & H Division
Hospital Indemnity
Hospital Accident
Cancer Coverage
Accidental Death & Dismemberment (AD&D)
AIG Warranty Services
Mechanical Breakdown
Vehicle Service Agreement (VSA)
GAP Coverage (stand alone or with above-mentioned products)
Computer Warranty Coverage
AIG Capital Management Corp.
AIG All Ages Funds
Schedule A-1
25
SCHEDULE B
BASE COMPENSATION
Compensation due to ABTAC pursuant to this Agreement shall be based on a
flat fee calculated on the basis of 2% of annualized written automobile premium
for all new policies in the first twelve months after the commencement of Phase
1. Calculations to adjust the compensation from a gross written premium basis to
a net collected premium basis will occur in months 13 through 24; the resultant
adjustments will be offset against the payments of future compensation in months
13 through 35. For purposes of this Schedule B, net collected premium basis
means the annualized written premium for any new or renewal policy reduced only
by those amounts not collected against the expectancy embodied in the annualized
amount. Illustrations of the compensation calculation are attached as pages
Schedule B-2 through Schedule B-7.
Compensation for new and renewal automobile policies after month 12
shall be based on a flat fee calculated on the basis of 2% of net collected
premium.
Compensation for homeowners and personal umbrella liability policies
shall be based on a flat fee calculated on the basis of 2% of new and renewal
net collected premium.
All payments due ABTAC by AIC during the term of this Agreement shall be
paid by AIC to ABTAC thirty (30) days after the end of each calendar month.
Schedule B-1
26
EXAMPLE # 1
$600 6-Month Policy Written in Month One and
Collected Via Monthly Direct ▇▇▇▇ for 1st and 2nd Term (12 Months)
================================================================================
Gross Annualized Net Collected
Month Premium Compensation Premium Compensation
1 $1,200 $150
2 $24 $150 $3
3 $150 $3
4 $150 $3
5 $100 $3
6 $100 $2
7 $100 $2
8 $100 $2
9 $100 $2
10 $100 $2
11 $2
12
Total* $1,200 $24 $1,200 $24
* No adjustments required
Schedule B-2
27
EXAMPLE # 2
$600 6-Month Policy Written in Month One and
Collected Via Monthly Direct ▇▇▇▇ for 1st and
Half of 2nd Term and Then Policy Lapses
================================================================================
Gross Annualized Net Collected
Month Premium Compensation Premium Compensation
1 $1,200 $150
2 $24 $150 $3
3 $150 $3
4 $150 $3
5 $100 $3
6 $100 $2
7 $100 $2
8 $2
9
10
11
12
Total* $1,200 $24 $900 $18
* $6 compensation adjustment @ .50(cent) per month ($24 - $18 divided by 12)
will occur in months 13 thru 24.
Schedule B-3
28
EXAMPLE # 3
Same as #1 Except Policy Written in Month 7
================================================================================
Gross Annualized Net Collected
Month Premium Compensation Premium Compensation
1
2
3
4
5
6
7 $1,200 $150
8 $24 $150 $3
9 $150 $3
10 $150 $3
11 $100 $3
12 $100 $2
13 $100 $2
14 $100 $2
15 $100 $2
16 $100 $2
17 $2
Total* $1,200 $24 $1,200 $24
* No adjustment required
Schedule B-4
29
EXAMPLE # 4
Same as #2 Except Policy Written in Month 7
================================================================================
Gross Annualized Net Collected
Month Premium Compensation Premium Compensation
1
2
3
4
5
6
7 $1,200 $150
8 $24 $150 $3
9 $150 $3
10 $150 $3
11 $100 $3
12 $100 $2
13 $100 $2
14 $2
15
16
17
Total* $1,200 $24 $900 $18
* $6 compensation adjustment @ .50(cent) per month ($24 - 18 divided by 12) will
occur in months 19 thru 30.
Schedule B-5
30
EXAMPLE # 5
Same as #1 & #3 Except Policy Written in Month 12
================================================================================
Gross Annualized Net Collected
Month Premium Compensation Premium Compensation
1
2
3
4
5
6
7
8
9
10
11
12 $1,200 $150
13 $24 $150 $3
14 $150 $3
15 $150 $3
16 $100 $3
17 $100 $2
18 $100 $2
19 $100 $2
20 $100 $2
21 $100 $2
22 $2
Total* $1,200 $24 $1,200 $24
* No adjustment required.
Schedule B-6
31
EXAMPLE # 6
Same as #1 & #3 Except Policy Written in Month 12
================================================================================
Gross Annualized Net Collected
Month Premium Compensation Premium Compensation
1
2
3
4
5
6
7
8
9
10
11
12 $1,200 $150
13 $24 $150 $3
14 $150 $3
15 $150 $3
16 $100 $3
17 $100 $2
18 $100 $2
19 $2
20
21
22
23
Total* $1,200 $24 $900 $18
* $6 compensation adjustment @ .50(cent) per month ($24 - 18 divided by 12) will
occur in months 24 thru 35.
Schedule B-7
32
▇▇▇▇▇▇▇▇▇.▇▇▇
November 12, 1998
Via Facsimile
-------------
And Certified Mail, Return Receipt Requested
--------------------------------------------
AIG MARKETING, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Or his successor
Re: Marketing Agreement, dated as of July 22, 1996, between Auto-By-Tel
Acceptance Corporation ("ABTAC") and Auto-By-Tel Corporation as
guarantor, and all member companies of American International Group,
(collectively "AIC") as signatory thereto (the "Agreement").
--------------------------------------------------------------------
Dear ▇▇. ▇▇▇▇▇▇:
Reference is made to Section 6.1(a) of the above referenced Agreement.
This letter serves as notice that ABTAC elects to terminate the
exclusivity provisions of the Agreement, upon the expiration of the now
current twelve (12) month exclusivity period effective January 22, 1999.
Please contact me should you have any questions or comments.
Very truly yours,
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
cc: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President,
Or his successor