EXHIBIT 10.38
Sales Agreement for Affinity Insurance Group, Inc. between ▇▇▇▇▇ Insurance
Holding LLC and the Company.
STOCK ACQUISITION AGREEMENT
STOCK ACQUISITION AGREEMENT (the "Agreement") dated as of December 31,
1998, between ▇▇▇▇▇ Insurance Holding LLC, a Minnesota limited liability company
("AIH") and Affinity Group Holding, Inc., a Delaware corporation ("▇▇▇▇").
WITNESSETH:
WHEREAS, Affinity Insurance Group, Inc. ("AIGI") is a wholly owned
subsidiary of ▇▇▇▇, ▇▇▇▇ having acquired AIGI on November 13, 1998 by dividend
from Affinity Group, Inc., a wholly-owned subsidiary of ▇▇▇▇;
WHEREAS, AIH has offered to purchase all of the stock of AIGI (the
"Shares") in exchange for a promissory note in the amount of $3,100,000, and
▇▇▇▇ is willing to sell the stock of AIGI to AIH in accordance with the terms of
this Agreement;
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, AIH and ▇▇▇▇ agree as follows:
1. TIME AND PLACE OF THE CLOSING. Subject to the conditions precedent
set forth in this Agreement, including specifically receipt of the regulatory
approvals contemplated by Section 3(a)(iii), the purchase and sale of the Shares
pursuant to the terms of this Agreement (the "Closing") shall take place at the
offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A., 5500 Norwest Center, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, on the Closing Date. The "Closing Date"
shall occur within five business days after receipt by AIH of notice from ▇▇▇▇
that the regulatory approvals contemplated by Section 3(a)(iii) have been
obtained.
2. ISSUANCE OF SHARES. At the Closing, ▇▇▇▇ shall deliver to AIH a
certificate or certificates representing the Shares against payment therefor by
AIH by execution and delivery to ▇▇▇▇ of a promissory note (the "Note") in the
original principal amount of $3,100,000 in substantially the form attached
hereto as Exhibit A.
3. CONDITIONS TO CLOSING.
a. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF AIH. The obligation of AIH
to consummate the transactions contemplated under this Agreement is subject to
the satisfaction of each of the following conditions at or prior to a Closing
(unless expressly waived in writing by AIH at or prior to the Closing):
(i) COMPLIANCE BY ▇▇▇▇. All of the terms, covenants and conditions
of this Agreement to be complied with and performed by ▇▇▇▇ at or prior to a
Closing shall have been
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complied with and performed by it in all material respects, and the
representations and warranties made by ▇▇▇▇ in this
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Agreement shall be true and correct in all material respects at and as of such
Closing with the same force and effect as though such representations and
warranties had been made at and as of such Closing, except for changes expressly
contemplated by this Agreement and except for representations and warranties
that are made as of a specific time which shall be true and correct in all
material respects only as of such time.
(ii) NO LEGAL ACTION. No action, suit, investigation or other
proceeding relating to the transactions contemplated hereby shall have been
either (x) instituted and be pending and not been dismissed and all rights of
appeal lapsed without any appeal being filed or (y) threatened, in any case,
before any court or by any governmental body which presents a substantial
risk of the restraint or prohibition of the transactions contemplated hereby
or thereby or the obtaining of material damages or other material relief in
connection herewith or therewith or which could reasonably be expected to
have a material adverse effect on AIH or AIGI.
(iii) REGULATORY MATTERS. All necessary consents, approvals,
authorizations and orders of governmental entities (including, without
limitation, those required under state insurance regulatory laws) necessary
for the consummation of the transactions contemplated by this Agreement shall
have been obtained.
(iv) OTHER. ▇▇▇▇ shall have furnished to AIH such executed and
conformed copies of such other certificates and documents as AIH may
reasonably request and as are customary for transactions such as those
contemplated by this Agreement.
b. CONDITIONS PRECEDENT TO OBLIGATIONS OF ▇▇▇▇. The obligation of ▇▇▇▇
to consummate the transactions contemplated by this Agreement is subject to the
satisfaction of each of the following conditions at or prior to a Closing
(unless expressly waived in writing by ▇▇▇▇ at or prior to the Closing):
(i) COMPLIANCE BY AIH. All of the terms, covenants and conditions of
this Agreement to be complied with and performed by AIH at or prior to a
Closing shall have been complied with and performed by AIH in all material
respects, and the representations and warranties made by AIH in this
Agreement shall be true and correct in all material respects at and as of
such Closing, with the same force and effect as though such representations
and warranties had been made at and as of such Closing, except for changes
expressly contemplated by this Agreement and except for representations and
warranties that are made as of a specific time, which shall be true and
correct in all material respects only as of such time.
(ii) NO LEGAL ACTION. No action, suit, investigation or other
proceeding relating to the transactions contemplated hereby shall have been
either (x) instituted and be pending and not been dismissed and all rights of
appeal lapsed
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without any appeal being filed or (y) threatened, in any case, before or by any
court or any governmental body which presents a substantial risk of the
restraint or prohibition of the transactions contemplated hereby or thereby or
the obtaining of material damages or other material relief in connection
herewith or therewith.
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(iii) REGULATORY MATTERS. All necessary consents, approvals,
authorizations and orders of governmental entities (including, without
limitation, those required under state insurance regulatory laws) necessary
for the consummation of the transactions contemplated by this Agreement shall
have been obtained.
4. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇. ▇▇▇▇ hereby represents and
warrants to AIH that:
a. ORGANIZATION, GOOD STANDING, POWER, AUTHORITY, ETC. AIGI is an
insurance company duly organized, validly existing and in good standing under
the laws of the State of Colorado. ▇▇▇▇ is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
▇▇▇▇ has the corporate power and authority to execute and deliver this Agreement
and to perform its obligations under this Agreement. ▇▇▇▇ has taken all action
required by law, its organizational documents or otherwise legally required to
be taken by it to authorize the execution, delivery and performance by it of
this Agreement. This Agreement is the valid and binding obligation of ▇▇▇▇,
enforceable in accordance with its terms, except that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
general principles of equity and except that rights to indemnity and
contribution may be limited by federal or state securities laws or policies
underlying such laws.
b. CAPITALIZATION OF AIGI. The Shares represent all of the outstanding
capital stock of AIGI. All of the Shares have been duly and validly issued and
are fully paid and nonassessable and have been issued in compliance with
applicable federal and state securities laws. The shareholders of AIGI have no
preemptive or similar rights with respect to the capital stock of AIGI. At the
Closing, no further approval or authority of the shareholders or of the Board of
Directors of AIGI will be required for the consummation of the transactions
contemplated by this Agreement except such as will have been obtained or made
and are then in full force and effect. The Shares are free and clear of any
encumbrances.
c. OUTSTANDING SECURITIES. There are no outstanding (i) securities or
obligations of AIGI convertible into or exchangeable for any capital stock of
AIGI, (ii) other warrants, rights or options to subscribe for or purchase from
AIGI any such capital stock or any such convertible or exchangeable securities
or obligations or (iii) obligations of AIGI to issue such shares, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
d. REGISTRATION RIGHTS. There exists no agreement or understanding
granting any person the right to have securities registered in connection with,
or as a result of, any registration of securities constituting capital stock of
AIGI.
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e. AUTHORITY AND QUALIFICATION OF AIGI. AIGI has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as currently owned or leased and conducted except where failure to do so would
not have a material adverse effect on AIGI. AIGI is duly qualified to transact
business as a foreign corporation and is in good standing in each jurisdiction
in which the conduct of its business or its ownership, leasing or operation of
property requires such qualification, other than any failure to be so qualified
or in good standing as would not, singly or in the aggregate, reasonably be
expected to have a material adverse effect on AIGI.
f. SUBSIDIARIES. AIGI does not own any subsidiaries.
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g. NO CONTRAVENTION, CONFLICT. BREACH, ETC. The execution, delivery and
performance of this Agreement and the consummation of the transactions herein
and therein contemplated will not (i) conflict with, or result in a breach or
violation of, any provision of the organization documents of ▇▇▇▇ or any of its
subsidiaries, (ii) result in substantial risk of loss of, or limitation on, any
insurance license or other licenses held by AIGI or the right of AIGI to conduct
business in any jurisdiction as currently conducted, or (iii) conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets or properties of AIGI under any statute,
rule, regulation, order or decree of any governmental agency or body or any
court having jurisdiction over AIGI or any of its properties, assets or
operations, or any indenture, mortgage, loan agreement, note or other agreement
or instrument for borrowed money or any lease, license or other agreement or
instrument to which AIGI is a party or by which AIGI is bound or to which any of
the properties, assets or operations of AIGI is subject, except, in the case of
clauses (ii) and (iii), such conflicts, breaches, violations, defaults, liens,
charges or encumbrances which would not, singly or in the aggregate, reasonably
be expected to have a material adverse effect on AIGI.
h. CONSENTS. No consent, approval, authorization, order, registration,
filing or qualification of or with any (i) court, (ii) government agency or body
or (iii) other third party (whether acting in an individual, fiduciary or other
capacity) is required for the consummation of the transactions contemplated by
this Agreement, except amendments to insurance holding company registration
statements and other filings with insurance regulatory authorities with respect
to the transactions contemplated hereby.
i. NO EXISTING VIOLATION, DEFAULT, ETC. Neither ▇▇▇▇ nor any of its
subsidiaries is in violation of (i) its charter, by-laws or other organizational
documents, (ii) any applicable law, ordinance, administrative or governmental
rule or regulation or (iii) any order, decree or judgment of any court or
governmental agency or body having jurisdiction over ▇▇▇▇ or any of its
subsidiaries, except in the case of clauses (ii) and (iii) those which would not
reasonably be expected to have, singly or in the aggregate, a material adverse
effect on ▇▇▇▇.
No event of default or event that, but for the giving of notice or the
lapse of time or both, would constitute an event of default, exists under any
indenture, mortgage, loan agreement, note or other agreement or instrument for
borrowed money or any lease, permit, license or other agreement or instrument to
which ▇▇▇▇ or any of its subsidiaries is a party or by which ▇▇▇▇ or any of its
subsidiaries is bound or to which any of the properties, assets or
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operations of ▇▇▇▇ or any of its subsidiaries is subject except where such
default would not have a material adverse effect on ▇▇▇▇.
j. FINANCIAL STATEMENTS.
(i) The audited consolidated financial statements and related schedules
and notes for AIGI for the years ended December 31, 1995, 1996 and 1997 were
prepared in accordance with GAAP consistently applied throughout the periods
involved and fairly present the financial condition, results of operations,
cash flows and changes in stockholders' equity of AIGI at the dates and for
the periods presented. The audited statutory financial statements and
related schedules and notes for AIGI for the years ended December 31, 1995,
1996 and 1997 were prepared in accordance with statutory accounting
principles prescribed or permitted by the
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applicable insurance acts and fairly present the financial condition, results
of operations, cash flows and changes in capital and surplus of AIGI at the
dates and for the periods presented. (The audited financial statements of
AIGI described in the preceding two sentences are hereinafter collectively
referred to as the "Audited Financial Statements").
(ii) The unaudited monthly consolidated financial statements and the
related notes (if any) commencing January 1, 1998 for AIGI present fairly the
financial condition, results of operations and cash flows of AIGI at the
dates and for the periods to which they relate, subject to year-end audit
adjustments (consisting only of normal recurring accruals), have been
prepared in accordance with GAAP applied on a consistent basis (except as
otherwise stated therein and except that they do not contain full footnote
disclosures in accordance with GAAP) and have been prepared on a basis
substantially consistent with that of the Audited Financial Statements
referred to above except as otherwise stated therein. The unaudited
statutory financial statements and related schedules and notes for AIGI for
periods commencing subsequent to December 31, 1997 were prepared in
accordance with statutory accounting principles prescribed or permitted by
the applicable insurance acts and fairly present the financial condition,
results of operations, cash flows and changes in capital and surplus of AIGI
at the dates and for the periods presented. (The unaudited financial
statements of AIGI described in the preceding two sentences are hereinafter
collectively referred to as the "Unaudited Financial Statements" and,
together with the Audited Financial Statements, as the "Financial
Statements").
k. REPRESENTATIONS AND WARRANTIES REGARDING OPERATIONS. ▇▇▇▇ hereby
represents and warrants to AIH that, to the knowledge of ▇▇▇▇ and except as
expressly disclosed in the Audited Financial Statements, including the footnotes
thereto, the following are true, correct and complete in all material respects:
(i) LICENSES AND PERMITS. AIGI has such certificates, permits, licenses,
franchises, consents, approvals, orders, authorizations and clearances from
appropriate governmental agencies and bodies ("Licenses") as are necessary to
own, lease or
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operate its properties as currently owned, leased or operated and to conduct
its businesses as currently conducted and all such Licenses are valid and in
full force and effect, except such Licenses which the failure to have or to
be in full force and effect would not, singly or in the aggregate, reasonably
be expected to have a material adverse effect on AIGI. AIGI is in compliance
in all material respects with its obligations under such Licenses, with such
exceptions as would not, singly or in the aggregate, reasonably be expected
to have a material adverse effect on AIGI, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination of such Licenses which revocation or termination, singly or in
the aggregate, would reasonably be expected to have a material adverse effect.
(ii) TITLE TO PROPERTIES. AIGI has sufficient title to all material
properties (real and personal) owned by AIGI or reflected in the Financial
Statements which are necessary for the conduct of the business of AIGI as
currently conducted, free and clear of any encumbrance that may materially
interfere with the conduct of the business of AIGI and, to the best of AGHI's
knowledge, all material properties held under lease by AIGI are held under
valid, subsisting and enforceable leases.
(iii) ENVIRONMENTAL MATTERS. The properties, assets and operations of AIGI
are in compliance in all material respects with all applicable federal,
state, local and foreign laws, rules and regulations, orders, decrees,
judgments, permits and licenses relating, to public and worker
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health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including, without
limitation, those relating to the generation, handling, disposal,
transportation or release of hazardous materials (collectively "Environmental
Laws"), other than any such failure to be in compliance as would not, singly
or in the aggregate, reasonably be expected to have a material adverse effect
on AIGI. With respect to such properties, assets and operations, including
any previously owned, leased or operated properties, assets or operations, to
the best knowledge of ▇▇▇▇, there are no past, present or reasonably
anticipated future events, conditions, circumstances, activities, practices,
incidents, actions or plans of AIGI that may interfere with or prevent
compliance or continued compliance in all material respects with applicable
environmental laws, other than any such interference or prevention as would
not, singly or in the aggregate, reasonably be expected to have a material
adverse effect on AIGI. The term "hazardous materials" shall mean those
substances that are regulated by or form the basis for liability under any
applicable environmental laws.
To the best of AGHI's knowledge, AIGI is not the subject of any federal,
state, local or foreign investigation, and AIGI has not received any notice or
claim (or is aware of any facts that would form a reasonable basis for any
claim) or entered into any negotiations or agreements with any third party, in
each case relating to any material liability or remedial action or potential
liability or remedial action under environmental laws, nor are there any
pending, reasonably anticipated or, to the knowledge of ▇▇▇▇, threatened
actions, suits or proceedings against or affecting
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▇▇▇▇ or its properties, assets or operations in connection with any such
environmental laws.
(iv) TAXES. ▇▇▇▇ and its subsidiaries have filed all federal, and all
material state, local and foreign, tax returns which are required to be
filed, and each has paid all taxes and assessments required by law to be paid
(other than those presently payable without penalty or interest, as to which
adequate provision as required by GAAP has been made for the payment
thereof). United States federal income tax returns of AIGI have been
examined and closed through the fiscal year ended December 31, 1997. The
charges, accruals and reserves on the books of AIGI in respect of taxes or
other similar governmental charges are adequate under GAAP.
(v) LITIGATION. There are no pending or, to the best of AGHI's knowledge,
threatened actions, suits, proceedings, arbitrations or investigations
against or affecting AIGI or any of its properties, assets or operations, or
with respect to which AIGI is responsible by way of indemnity or otherwise,
that question the validity of the is Agreement or any of the transactions
contemplated by this Agreement, or that would, singly or in the aggregate,
reasonably be expected to have a material adverse effect on AIGI, or could
reasonably be expected to have a material adverse effect on the ability of
AIGI to perform its obligations under this Agreement; and ▇▇▇▇ is not aware
of any basis for any such action, suit, proceeding or investigation.
(vi) LABOR MATTERS. No labor disturbance by the employees of AIGI that has
had or that would, singly or in the aggregate, reasonably be expected to have
a material adverse effect exists or, to the best knowledge of ▇▇▇▇, is
threatened. AIGI is not a party to any collective bargaining or other union
contract. ▇▇▇▇ is not aware of the existence of any effort to unionize
employees of AIGI.
(vii) CONTRACTS. Neither AIGI nor, to the best knowledge of ▇▇▇▇, any other
party is in breach of or default under any contract to which AIGI is a party
or bound except for such breaches and defaults which have not and would not
singly or in the aggregate with other such breaches and defaults have a
material adverse effect on AIGI.
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AIGI is not a party to any (written or oral) stockholders' agreement,
employment agreement, advisors' agreement or any similar agreement other than
the agreements otherwise disclosed in this Agreement.
AIGI has provided AIH with a true, complete and correct copy of AIGI's loan
documents and all waivers, consents and amendments thereunder.
After giving effect to the transactions to occur at the Closing, there are
no contracts or agreements between or among AIGI, on the one hand, and any of
the stockholders or affiliates of AIGI, on the other hand.
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(viii) FINDER'S FEES. No broker, finder or other party is entitled to
receive any brokerage or finder's fee or any other fee, commission or payment
as a result of the transactions contemplated by this Agreement.
(ix) ERISA. AIGI does not contribute to or otherwise have any obligation
or liability with respect to any employee benefit plan.
(x) CONTINGENT LIABILITIES. Except as fully reserved against in the
Financial Statements, or specifically disclosed in the footnotes contained in
such Financial Statements, AIGI had no liabilities (including tax
liabilities), absolute or contingent, that were material, either individually
or in the aggregate, to AIGI or that would, singly or in the aggregate,
reasonably be expected to have a material adverse effect on AIGI. Since
December 31, 1997, AIGI has not incurred any such liabilities other than with
respect to claims under insurance policies and reported in the ordinary
course of business and such claims, singly or in the aggregate, would not
reasonably be expected to have a material adverse effect. The frequency and
severity of such claims reported to AIGI since December 31,1997 are
consistent with those reported for comparable periods prior to December 31,
1997.
(xi) NO MATERIAL ADVERSE CHANGE. Since December 31, 1997, (i) AIGI has not
incurred any material liability or obligation (indirect, direct or
contingent), or entered into any material oral or written agreement or other
transaction, that is not (A) in the ordinary course of business and (B) that
could, singly or in the aggregate, reasonably be expected to have a material
adverse effect on AIGI; (ii) AIGI has not sustained any loss or interference
with its businesses or properties from fire, flood, windstorm, accident or
other calamity (whether or not covered by insurance) that has had or that
could, singly or in the aggregate, reasonably be expected to have a material
adverse effect on AIGI; (iii) there has been no material change in the
indebtedness of AIGI, no change in the capital stock of AIGI (except as
contemplated hereby), and no dividend or distribution of any kind (including
stock dividends, recapitalizations or other transactions) declared, paid or
made by AIGI with respect to its capital stock; and (iv) to the best of
AGHI's knowledge, there has been no event or circumstance causing a material
adverse effect on AIGI, nor any development that could, singly or in the
aggregate, reasonably be expected to result in a material adverse effect on
AIGI.
(xii) INVESTMENT COMPANY. AIGI is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
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(xiii) INSURANCE MATTERS.
(A) AIGI is in compliance with the requirements of each applicable
insurance law and any applicable rules and regulations and has filed all
reports, documents or other information required to be filed thereunder,
except where the failure to comply or file would not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on AIGI;
and AIGI has not received any notification from
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any insurance regulatory authority, commission or other insurance regulatory
body in the United States or elsewhere to the effect that AIGI is not in
compliance with any applicable insurance act, except where the failure to comply
would not, singly or in the aggregate, reasonably be expected to have a material
adverse effect on AIGI.
(B) AIGI has not made any material change in its insurance reserving
practices since December 31, 1994 that would, singly or in the aggregate,
reasonably be expected to have (i) a material adverse effect on AIGI or (ii)
a material adverse effect on AIGI's ability to pay dividends.
(C) (1) Each reserve and other liability amount in respect of the
insurance business, including, without limitation, reserve and other
liability amounts in respect of insurance policies, contracts, whether direct
or assumed by reinsurance, established or reflected in the respective Annual
Statements for the year ended December 31, 1997, of AIGI and any statutory
financial statement of AIGI for any subsequent period were determined in
accordance with generally accepted actuarial standards consistently applied,
were based on actuarial assumptions that were in accordance with those called
for in relevant policy and contract provisions, are fairly stated in
accordance with sound actuarial principals and are in compliance, in all
material respects, with the requirements of the insurance laws, rules and
regulations of AIGI's jurisdictions of domicile as well as those of any other
applicable jurisdiction. AIGI owns assets that qualify as admitted assets
under applicable insurance laws in an amount at least equal to the sum of all
such reserves and liability amounts and its minimum statutory capital and
surplus as required by the insurance laws, rules and regulations of its
jurisdiction of domicile.
No material claim or assessment is pending or, to the best knowledge of
▇▇▇▇, threatened against AIGI by any state insurance guaranty association in
connection with such association's fund relating to insolvent insurers.
(2) In light of present facts and current legal interpretations, AIGI's
overall reserve levels are reasonable to meet its obligations under existing
policies.
(D) AIGI holds such licenses, certificates, authorizations and permits
from governmental authorities (including, without limitation, insurance
licenses from the insurance regulatory agencies of the various states and
foreign jurisdictions where it conducts business) which are necessary to the
conduct of its business as presently operated; AGP has fulfilled and
performed all obligations necessary to maintain its insurance licenses; there
is neither instituted and not been dismissed and all rights of appeal lapsed
without any appeal being filed nor, to the best knowledge of ▇▇▇▇, threatened
any action, suit, proceeding or investigation that may lead to the
revocation, termination or suspension of any such license, certificate or
permit, except, in each of the foregoing cases which would not, singly or in
the aggregate, reasonably be expected to have a material adverse effect on
AIGI; and, to the best knowledge of ▇▇▇▇, no insurance regulatory agency or
body has issued any order or decree (specifically applicable to AIGI as
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77
opposed to insurance companies generally) impairing, restricting or
prohibiting the payment of dividends by any of them to their respective parent
companies or shareholders.
(E) No loss experience has developed which would require or make it
appropriate for AIGI to alter or modify its reserving methodology or assumptions
since December 31, 1994, in any material respect.
(F) All reinsurance treaties, contracts, agreements and arrangements to
which AIGI is a party are in full force and effect, other that those that, by
their terms, have expired or otherwise terminated. Each such reinsurance
agreement is valid and binding in all material respects in accordance with its
terms on the insurance company party thereto. ▇▇▇▇ has no reason to believe
that any amount recoverable by AIGI pursuant to any reinsurance agreement is not
fully collectible in due course. Neither AIGI nor, to the best knowledge of
▇▇▇▇, any other party thereto is in default in any material respect as to any
reinsurance agreement and, to the best knowledge of ▇▇▇▇, there is no reason to
believe that the financial condition of any such other party is impaired to the
extent that a default thereunder may reasonably be anticipated. None of the
reinsurance agreements contains any provision providing that the other party
thereto may terminate such reinsurance agreement by reason of the transactions
contemplated by this Agreement. AIGI is entitled to take full credit in its
statutory financial statements for any reinsurance, coinsurance or excess
insurance ceded by it.
(G) All filings required under any insurance act to have been made with
state insurance regulatory authorities relating to operations on and after
December 31, 1994, by AIGI have been duly and timely made, and when filed were
in substantial compliance with the requirements of each such insurance act.
(xiv) ACCURACY AND COMPLETENESS OF INFORMATION. All information furnished
by or on behalf of AIGI to AIH or any of its agents or advisors for purposes
of or in connection with this Agreement or any transaction contemplated
hereby or thereby, when considered as a whole, is true and accurate in all
material respects and not incomplete by omitting to state any material fact
necessary to make such information not misleading. It is understood that the
written or printed documents and materials furnished by or on behalf of ▇▇▇▇
as aforesaid have been prepared by ▇▇▇▇ and its subsidiaries in the ordinary
course of its or their business.
5. REPRESENTATIONS AND WARRANTIES OF AIH. AIH hereby represents and
warrants to ▇▇▇▇ that:
a. ORGANIZATION, GOOD STANDING, POWER, AUTHORITY, ETC. AIH is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Minnesota. AIH has the full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
under this Agreement. AIH has taken all action required by law, its
organizational documents or otherwise required to be taken by it to authorize
the execution, delivery
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and performance by it of this Agreement. This Agreement is a valid and
binding obligation of AIH, enforceable in accordance with its respective
terms, except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and general principles of equity and
except
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that rights to indemnity and contribution may be limited by federal or state
securities laws or policies underlying such laws.
b. NO CONFLICTS; NO CONSENTS. The execution, delivery and performance of
this Agreement by AIH, and the consummation of the transactions contemplated
hereby, will not (i) conflict with, or result in a breach or violation of, any
provision of the charter, by-laws or other organization documents of AIH or (ii)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets or properties of
AIH under, any statute or law or any judgment, order, writ, injunction, decree,
rule or regulation applicable to AIH. No consent, authorization or approval of,
or declaration, filing or registration with, or exemption by, any governmental
or regulatory authority, court or other third party (whether acting in an
individual, fiduciary or other capacity) is required in connection with the
execution and delivery of, and the performance by AIH of its respective
obligations under, this Agreement or the consummation by AIH of the transactions
to be performed by it as contemplated hereby other than filings, authorizations,
consents and approvals contemplated under this Agreement.
c. INVESTMENT INTENT, ETC. AIH (i) has such knowledge, sophistication
and experience in business and financial matters that it is capable of
evaluation the merits and risks of an investment in the common stock of AIGI,
(ii) can bear the economic risk of an investment in the common stock of AIGI and
can afford a complete loss of such investment, and (iii) is acquiring the common
stock of AIGI for its own account and is not purchasing the Shares with a view
to, or for a sale in connection with, a distribution in violation of any
applicable securities law. AIH acknowledges that (x) it understands that the
Shares have not been and will not be registered under any securities law and
that the stock may not be sold or otherwise transferred by it, unless a
subsequent disposition thereof is registered or is exempt from such registration
and (y) it has been afforded the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of AIGI
concerning the merits and risks of investing in the stock (it being understood
that this representation and warranty shall not limit, in any way, the
representations and warranties of ▇▇▇▇ hereunder).
d. LITIGATION. There are neither instituted and not been dismissed and
all rights of appeal lapsed without any appeal being filed nor, to the best of
the knowledge of AIH, threatened actions, suits, proceedings, arbitrations or
investigations against or affecting AIH that question the validity of this
Agreement or any of the transactions contemplated by this Agreement that could
reasonably be expected to have a material adverse effect on the ability of AIH
to perform its respective obligations under this Agreement.
e. FINDER'S FEES. No broker, finder or other similar party is entitled
to receive from AIH any brokerage or finder's fee or any other similar fee,
commission or payment as a result of the transactions contemplated by this
Agreement for which ▇▇▇▇ could become liable.
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6. COVENANTS OF THE PARTIES.
a. TRANSACTION DOCUMENTS, ETC. Each party hereto agrees to comply with
each of their respective covenants and agreements under this Agreement.
b. PRE-CLOSING ACTIVITIES. From and after the date of this Agreement
until the Closing, each of the parties hereto shall act with good faith towards,
and shall use commercially reasonable best efforts to consummate, the
transactions contemplated by this Agreement.
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Specifically, each of the parties hereto and their respective affiliates, as
applicable, shall cooperate in all material respects to obtain any legally
required regulatory approvals for this Agreement and the transactions
contemplated hereby by any relevant regulatory authority, including, without
limitation, the Colorado Department of Insurance.
▇. ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. To the extent applicable, each of the parties
hereto shall, as soon as practicable, make all filings and furnish all
information required with respect to the transactions contemplated by this
Agreement by the HSR Act and shall use their best efforts to obtain the early
termination of the waiting period thereunder; provided that no party shall be
required to agree to dispose of or hold separate any portion of its business
or assets.
d. ACCESS. At all times prior to the Closing, upon reasonable notice,
▇▇▇▇ shall afford and shall cause AIGI to afford AIH and its officers,
employees, counsel, accountants and other authorized representatives
("Representatives") reasonable access during normal business hours to its
properties, books, contracts and records and personnel and advisers (who will
be instructed by ▇▇▇▇ to cooperate) and ▇▇▇▇ shall furnish and shall cause
AIGI to furnish promptly to AIH all information concerning its business,
properties and personnel as AIH or their respective Representatives may
reasonably request, and AIH and their respective Representatives shall be
entitled to discuss the affairs, finances and accounts of AIGI with the
principal officers of AIGI and AIGI's independent public accountants and to
consult with and advise such officers as to the management of AIGI, at such
times and as often as AIH may reasonably request; provided that any review
will be conducted in a way that will not interfere unreasonably with the
conduct of AIGI's business, and provided, further, that no review pursuant to
this subsection (d) or otherwise shall affect or be deemed to modify any
representation or warranty made by ▇▇▇▇. Each of the parties hereto hereby
agrees on behalf of itself and each of its Representatives that the
information received by such party as described above shall be kept
confidential and that such parties will not use such information in any way
detrimental to the providing person or its Affiliates (it being understood
that such confidential information may be so disclosed to the extent
necessary or required in order to comply with applicable law, rule or
regulation or for legal, administrative or regulatory reasons or in order to
enforce any rights hereunder). Confidential information shall not include
information which (i) was or becomes generally available to the public other
than as a result of disclosure by such first party or its directors,
officers, employees or agents, (ii) was or becomes available to such first
party on a nonconfidential basis prior to its disclosure to them by the other
party, or (iii) was or becomes available to such first party on a
nonconfidential basis from a source other than such other party's directors,
oficers, employees or agents, provided that such source is not bound by a
confidentiality agreement with respect to such information.
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e. PUBLICITY. The parties hereto will consult with each other before
issuing any press release or otherwise making any public statements with respect
to the transactions contemplated hereby and shall not issue any such press
release or make any such public statement without obtaining the reasonable prior
approval of the other party hereto prior to such consultation, except as may be
required by law.
f. CONDUCT OF BUSINESS. Prior to the Closing, ▇▇▇▇ agrees to conduct its
business and shall cause its AIGI to conduct its business in the ordinary course
of business consistent with past practice, including, without limitation, with
respect to insurance underwriting and investment activities. Without limiting
the foregoing, ▇▇▇▇ shall not and shall not permit AIGI to (i) issue any capital
stock or any securities or rights convertible into or exercisable for capital
stock, (ii) incur any substantial indebtedness for money borrowed, or (iii)
dispose of, or enter into any
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agreements with respect to the disposition of, any material or significant
assets, including, without limitation, distributions to shareholders or
affiliates of AIGI. Further, prior to the Closing, ▇▇▇▇ shall not and shall
not permit, cause or suffer AIGI to enter into any agreement relating to any
business or transaction or series of transactions with or for the benefit of
an affiliate of ▇▇▇▇.
g. FINANCIAL STATEMENTS. Prior to Closing, ▇▇▇▇ shall deliver and
shall cause AIGI to deliver to AIH monthly and quarterly unaudited financial
statements of AIGI on a consolidated basis and prepared consistent with the
Unaudited Financial Statements within 10 days of the end of each month with
respect to monthly financial statements, and within 45 days of the end of
each quarter with respect to quarterly financial statements. Prior to
Closing, ▇▇▇▇ shall cause AIGI to deliver to AIH the statutory financial
statements of AIGI, prepared on a basis consistent with the Financial
Statements described in Section 4(j), within 10 days of the filing of such
financial statements under applicable insurance laws.
7. TERMINATION. This Agreement shall terminate if the Closing shall not
have occurred on or before March 15, 1999. Further, this Agreement may be
terminated at any time prior to the Closing: (i) by a written instrument
executed and delivered by all of the parties hereto; (ii) by ▇▇▇▇ upon any
material breach or default by AIH under this Agreement; or (iii) by AIH upon any
material breach or default by ▇▇▇▇ under this Agreement.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION. (a)
Except for the representations and warranties set forth in clauses (a), (b) and
(c) of Section 4, which shall survive without any limitation as to time, all
representations and warranties contained in this Agreement shall survive the
execution and delivery of this Agreement and the issuance of the Shares and any
examination or investigation made by any party to this Agreement or any of its
successors and assigns until the later of (i) 30 days after the delivery to AIH
of the audited financial statements of AIGI with respect to the fiscal year
ended December 31, 1998 and delivery of the statutory financial statements of
AIGI for such fiscal year, all such financial statements prepared on a basis
consistent with the Financial Statements described in Section 4(j) , and (ii) 30
days after Closing.
(b) ▇▇▇▇ agrees to indemnify and hold AIH and its affiliates and
successors and assigns harmless from and against any and all damage and
deficiency resulting from any misrepresentations or breaches of warranty or
covenants of ▇▇▇▇ under this Agreement. Notwithstanding the foregoing, except
for claims of AIH for actual fraud or claims of AIH for
-13-
misrepresentations or breaches of the warranties set forth in clauses (a), (b)
and (c) of Section 4, which claims shall not be subject to any limitations, (i)
any claim under this Section 8(b) or otherwise with respect hereto shall be
asserted by AIH, if at all, prior to the expiration of the 30 day period
referred to in Section 8(a) above, and (ii) ▇▇▇▇ shall not be liable for claims
under this Section 8(b) or otherwise with respect hereto to the extent such
claims, in the aggregate, exceeds $3,100,000.
9. PERFORMANCE: WAIVER. The provisions of this Agreement (including this
Section 8) may be modified or amended, and waivers and consents to the
performance and observance of the terms hereof may be given by written
instrument executed and delivered by all of the parties hereto. The failure at
any time to require performance of any provision hereof shall in no way affect
the full right to require such performance at any time thereafter (unless
performance thereof has been waived in accordance with the terms hereof for all
purposes and at all times by the parties to whom the benefit of such performance
is to be rendered). The waiver by any party
81
to this Agreement of a breach of any provision hereof shall not be taken or
held to be a waiver of any succeeding breach of such provision or any other
provision or as a waiver of the provision itself.
10. SUCCESSORS AND ASSIGNS. All covenants and agreements contained in
this Agreement by or on behalf of the parties hereto shall bind, and inure to
the benefit of, the respective successors and assigns of the parties hereto;
provided that, except as provided in the Stockholders Agreement, the rights
granted to the parties hereto may not be assigned by either party hereto without
the prior written consent of the other party hereto.
11. MISCELLANEOUS.
a. NOTICES. All notices under this Agreement must be in writing and
shall be delivered by (i) certified or registered mail, postage prepaid, return
receipt requested, or (ii) reputable overnight commercial courier or delivery
service, or (iii) by facsimile transmission confirmed by certified or registered
mail or commercial courier or delivery service as follows:
To ▇▇▇▇:
Affinity Group Holding, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To AIH:
▇▇▇▇▇ Insurance Holding LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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All notices, consents, waivers, and other communications under this
Agreement shall be deemed to have been duly given when (a) delivered by hand
(with written confirmation of receipt), (b) sent by telecopier (with written
confirmation of receipt), provided that a copy is mailed by registered mail,
return receipt requested, or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case to the appropriate addresses and telecopier numbers set forth above (or to
such other addresses and telecopier numbers as a party may designate by notice
to the other party.
b. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, as applied to contracts made
and performed within the State of Delaware, without regard to principles of
conflicts of law.
c. SEVERABILITY; INTERPRETATION. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, each of the parties hereto directs that such
court interpret and apply the remainder of this Agreement in the manner which it
determines most closely effectuates their intent in entering into this
82
Agreement, and in doing so particularly take into account the relative
importance of the term, provision, covenant or restriction being held
invalid, void or unenforceable.
d. HEADINGS. The index and section headings herein are for convenience
only and shall not affect the construction hereof.
e. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties relating to the subject matter hereof and any and all prior
oral or written agreements, representations or warranties, contracts,
understandings, correspondence, conversations, and memoranda, whether written or
oral, between the parties hereto, or between or among any agents,
representatives, parents, subsidiaries, affiliated, predecessors in interest or
successors in interest, are superceded with respect to the subject matter
hereof.
f. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
g. NO THIRD-PARTY BENEFICIARY. This Agreement is intended for the
benefit of the parties hereto and is not intended to confer or infringe upon any
other person or entity any rights or remedies except as contemplated in Sections
8 and 10.
[Remainder of page intentionally left blank.]
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
▇▇▇▇▇ INSURANCE HOLDING LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Manager
AFFINITY GROUP HOLDING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and CFO
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EXHIBIT A
PROMISSORY NOTE
$3,100,000 Ventura, California
December 31, 1998
FOR VALUE RECEIVED, ▇▇▇▇▇ INSURANCE HOLDING LLC, a Minnesota
limited liability company ("Maker"), hereby promises to pay to the order of
AFFINITY GROUP HOLDING, INC., a Delaware corporation, or its successors or
assigns, as the case may be ("Payee"), at the principal office of Payee at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, or such other place as may be
specified in writing by Payee, the principal sum of Three Million One Hundred
Thousand Dollars ($3,100,000), plus interest on the outstanding principal
balance at the rate per annum from time to time accruing on the senior
secured borrowings of Affinity Group, Inc.("AGI"), a wholly-owned subsidiary
of the Payee, or, for any period when no senior secured borrowings of AGI are
outstanding, the prime rate of interest as published in the WALL STREET
JOURNAL on the earliest date on which no senior secured borrowings of AGI are
outstanding.
Principal and accrued interest shall be paid in full thirty days
after the consummation of a Sale Transaction (as hereinafter defined). A
"Sale Transaction" means (a) the sale by the Maker of more than fifty percent
of the record and beneficial interest in the stock of Affinity Group Plans,
Inc., a Delaware corporation ("AGP") owned by the Maker on the date of this
promissory note and (b) the sale by AGP of all or substantially all of its
assets. Maker shall provide to Payee such information as Payee shall from
time to time reasonably request regarding a contemplated Sale Transaction.
Maker shall have the right to prepay all or any part of this promissory note
at any time without penalty or premium, but any such prepayment shall be
applied first to the payment of accrued interest and then to the installments
of principal due hereunder.
Maker hereby waives presentment for payment, notice of dishonor,
protest and notice of protest and, in the event of default hereunder, Maker
agrees to pay all costs of collection, including reasonable attorneys' fees.
This promissory note shall be governed by the laws of the State of
Delaware.
IN WITNESS WHEREOF, Maker has executed this promissory note as of
the date first above written.
▇▇▇▇▇ INSURANCE HOLDING LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Manager
84