FPIC Capital Statutory Trust III
FPIC Insurance Group, Inc.
SUBSCRIPTION AGREEMENT
October 29, 2003
THIS SUBSCRIPTION AGREEMENT (this "Agreement") made among FPIC Capital
Statutory Trust III (the "Trust"), a statutory trust created under the
Connecticut Statutory Trust Act (Chapter 615 of Title 34 of the Connecticut
General Statutes, Section 500, et seq.), FPIC Insurance Group, Inc., a Florida
corporation, with its principal offices located at 000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Company" and, collectively with the Trust, the
"Offerors"), and I-Preferred Term Securities III, Ltd. (the "Purchaser").
RECITALS:
A. The Trust desires to issue 15,000 of its Floating Rate Capital
Securities (the "Capital Securities"), liquidation amount $1,000.00 per Capital
Security, representing an undivided beneficial interest in the assets of the
Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Declaration of Trust (the "Declaration") by and among the Company, U.S. Bank
National Association ("U.S. Bank"), the administrators named therein, and the
holders (as defined therein), which Capital Securities are to be guaranteed by
the Company with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to the terms of a Guarantee Agreement between
the Company and U.S. Bank, as trustee (the "Guarantee"); and
B. The proceeds from the sale of the Capital Securities will be
combined with the proceeds from the sale by the Trust to the Company of its
common securities, and will be used by the Trust to purchase an equivalent
amount of Floating Rate Junior Subordinated Deferrable Interest Debentures of
the Company (the "Debentures") to be issued by the Company pursuant to an
indenture to be executed by the Company and U.S. Bank, as trustee (the
"Indenture"); and
C. In consideration of the premises and the mutual
representations and covenants hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1 Upon the execution of this Agreement, the Purchaser hereby
subscribes for and agrees to purchase from the Trust 15,000 Capital Securities
at a price equal to $1,000.00 per Capital Security (the "Purchase Price") and
the Trust agrees to sell such Capital Securities to the Purchaser for said
Purchase Price. The rights and preferences of the Capital Securities are set
forth in the Declaration. The Purchase Price is payable in immediately available
funds on October 29, 2003, or such other business day as may be designated by
the Purchaser, but in no event later than November 5, 2003 (the "Closing Date").
The Offerors shall provide the Purchaser wire transfer instructions no later
than 1 day following the date hereof.
1.2 The certificate for the Capital Securities shall be delivered
by the Trust on the Closing Date to the Purchaser or its designee.
1.3 The Placement Agreement, dated October 16, 2003 (the
"Placement Agreement"), among the Offerors and the Placement Agents identified
therein includes certain representations and warranties, covenants and
conditions to closing and certain other matters governing the Offering. The
Placement Agreement is hereby incorporated by reference into this Agreement and
the Purchaser shall be entitled to each of the benefits of the Placement Agents
and the Purchaser under the Placement Agreement and shall be entitled to enforce
the obligations of the Offerors under such Placement Agreement as fully as if
the Purchaser were a party to such Placement Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 The Purchaser understands and acknowledges that neither the
Capital Securities, the Debentures nor the Guarantee have been registered under
the Securities Act of 1933, as amended (the "Securities Act"), or any other
applicable securities laws, are being offered for sale by the Trust in
transactions not requiring registration under the Securities Act, and may not be
offered, sold, pledged or otherwise transferred by the Purchaser except in
compliance with the registration requirements of the Securities Act or any other
applicable securities laws, pursuant to an exemption therefrom or in a
transaction not subject thereto.
2.2 The Purchaser represents, warrants and certifies that (i) it
is not a "U.S. person" as such term is defined in Rule 902 under the Securities
Act, (ii) it is not acquiring the Capital Securities for the account or benefit
of any such U.S. person, (iii) the offer and sale of Capital Securities to the
Purchaser constitutes an "offshore transaction" under Regulation S of the
Securities Act, and (iv) it will not engage in hedging transactions with regard
to the Capital Securities unless such transactions are conducted in compliance
with the Securities Act and the Purchaser agrees to the legends and transfer
restrictions set forth on the Capital Securities certificate.
2.3 The Purchaser represents and warrants that it is purchasing
the Capital Securities for its own account, for investment, and not with a view
to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act or other applicable securities laws, subject to
any requirement of law that the disposition of its property be at all times
within its control and subject to its ability to resell such Capital Securities
pursuant to an effective registration statement under the Securities Act and
under Rule 144A or any other exemption from registration available under the
Securities Act or any other applicable securities law.
2.4 The Purchaser represents and warrants that it has full power
and authority to execute and deliver this Agreement, to make the representations
and warranties specified herein, and to consummate the transactions contemplated
herein and it has full right and power to subscribe for Capital Securities and
perform its obligations pursuant to this Agreement.
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2.5 The Purchaser, a Cayman Islands company whose business
includes issuance of certain notes and acquiring the Capital Securities and
other similar securities, represents and warrants that it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of purchasing the Capital Securities, has had the
opportunity to ask questions of, and receive answers and request additional
information from, the Offerors and is aware that it may be required to bear the
economic risk of an investment in the Capital Securities.
2.6 The Purchaser represents and warrants that no filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any governmental body, agency or court having jurisdiction over the
Purchaser, other than those that have been made or obtained, is necessary or
required for the performance by the Purchaser of its obligations under this
Agreement or to consummate the transactions contemplated herein.
2.7 The Purchaser represents and warrants that this Agreement has
been duly authorized, executed and delivered by the Purchaser.
2.8 The Purchaser represents and warrants that (i) the Purchaser
is not in violation or default of any term of its Memorandum of Association or
Articles of Association, of any provision of any mortgage, indenture, agreement,
instrument or contract to which it is a party or by which it is bound or of any
judgment, decree, order, writ or, to its knowledge, any statute, rule or
regulation applicable to the Purchaser which would prevent the Purchaser from
performing any material obligation set forth in this Agreement; and (ii) the
execution, delivery and performance of and compliance with this Agreement, and
the consummation of the transactions contemplated herein, will not, with or
without the passage of time or giving of notice, result in any such material
violation, or be in conflict with or constitute a default under any such term,
or the suspension, revocation, impairment, forfeiture or non-renewal of any
permit, license, authorization or approval applicable to the Purchaser, its
business or operations or any of its assets or properties which would prevent
the Purchaser from performing any material obligations set forth in this
Agreement.
2.9 The Purchaser represents and warrants that the Purchaser is an
exempted company with limited liability duly incorporated, validly existing and
in good standing under the laws of the Cayman Islands, with full power and
authority to perform its obligations under this Agreement.
2.10 The Purchaser understands and acknowledges that the Company
will rely upon the truth and accuracy of the foregoing acknowledgments,
representations, warranties and agreements and agrees that, if any of the
acknowledgments, representations, warranties or agreements deemed to have been
made by it by its purchase of the Capital Securities are no longer accurate, it
shall promptly notify the Company.
2.11 The Purchaser understands that no public market exists for any
of the Capital Securities, and that it is unlikely that a public market will
ever exist for the Capital Securities.
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ARTICLE 3
MISCELLANEOUS
3.1 Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Offerors:
FPIC Insurance Group, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxx
Fax: 000-000-0000
To the Purchaser:
I-Preferred Term Securities III, Ltd.
x/x Xxxxxx Xxxxxxx Xxxxxxx
X.X. Xxx 0000 XX
Xxxxxxxxxx House
South Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands
Attention: The Directors
Fax: 000-000-0000
Unless otherwise expressly provided herein, notices shall be
deemed to have been given on the date of mailing, except notice of change of
address, which shall be deemed to have been given when received.
3.2 This Agreement shall not be changed, modified or amended
except by a writing signed by the parties to be charged, and this Agreement may
not be discharged except by performance in accordance with its terms or by a
writing signed by the party to be charged.
3.3 Upon the execution and delivery of this Agreement by the
Purchaser, this Agreement shall become a binding obligation of the Purchaser
with respect to the purchase of Capital Securities as herein provided.
3.4 Notwithstanding anything expressed or implied to the contrary,
each Purchaser of Capital Securities (and each employee, representative or other
agent of a Purchaser) may disclose to any and all persons, without limitation of
any kind, the U.S. tax treatment and U.S. tax structure of the transactions
contemplated by this Agreement and all materials of any kind (including opinions
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or other tax analyses) that are provided to the Purchasers relating to such U.S.
tax treatment and U.S. tax structure as such terms are defined in Treasury
Regulation Section 1.6011-4; provided, that any such disclosure of the U.S. tax
treatment and U.S. tax structure and materials related thereto may not be made
(i) in a manner that would constitute an offer to sell or the solicitation of an
offer to buy the Capital Securities offered herein under applicable securities
laws or (ii) when nondisclosure is reasonably necessary to comply with
applicable securities laws. This authorization of tax disclosure is
retroactively effective to the commencement of the first discussions between the
parties regarding the transactions contemplated herein.
3.5 NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED
BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.6 The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Agreement.
3.7 This Agreement may be executed in one or more counterparts
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
3.8 In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the Offerors' and the Purchaser's rights and
privileges shall be enforceable to the fullest extent permitted by law.
Signatures appear on the following page
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed as of the day and year first written above.
I-PREFERRED TERM SECURITIES III, LTD.
By: /s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
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Title: Director
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IN WITNESS WHEREOF, this Agreement is agreed to and accepted as of the
day and year first written above.
FPIC INSURANCE GROUP, INC.
By: /s/ XXX X. XXXXXX
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Name: Xxx X. Xxxxxx
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Title: Executive VP and CFO
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FPIC CAPITAL STATUTORY TRUST III
By: /s/ XXXXXXX GOES XXXX
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Name: Xxxxxxx Goes Xxxx
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Title: Administrator
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