EXHIBIT 10.26
STOCK PURCHASE AND STOCK OPTION AGREEMENT
This Stock Purchase and Stock Option Agreement ("Agreement') is entered
into as of April 1, 1997, by and among American Physicians Service Group, Inc.,
a Texas corporation ("Selling Shareholder"), and Florida Physicians Insurance
Company, Inc., a Florida corporation ("Buyer").
In consideration of the mutual promises, representations, warranties,
covenants, and conditions set forth in this Agreement the parties to this
Agreement agree as follows:
1. Ownership and Sale of Shares.
1.1 Ownership of Shares. The Selling Shareholder owns a
total of 1,000 shares of the issued and outstanding
common stock of APS Insurance Services, Inc., a
Delaware corporation ("APS"), which constitutes 100%
of the APS capital stock issued and outstanding. APS
in turn owns 1,000 shares of the issued and
outstanding common stock of APS Facilities
Management, Inc., a Texas corporation, ("APSFMI"),
which constitutes 100% of the APSFMI capital stock
issued and outstanding.
1.2 Sales of Outstanding Shares. Subject to the terms and
conditions hereof, on the Closing Date the Selling
Shareholder shall sell and transfer to Buyer, and
Buyer shall purchase from the Selling Shareholder,
200 of the aforementioned shares of APS (the
"Shares"), constituting 20% of the total outstanding
capital stock of APS for a total purchase price of
TWO MILLION AND NO/100 DOLLARS ($2,000,000).
1.3 Payment for Shares. The purchase price for the
Shares shall be paid in cash at Closing.
2. Closing; Delivery.
2.1 Closing. The Closing of the purchase and sale of the
Shares (the "Closing") shall be held at the offices
of APS within five business days after the
satisfaction or waiver of the conditions set forth in
Sections 9 and 10 or such other date as is mutually
agreed upon by the parties (the "Closing Date").
2.2 Delivery. At the Closing, the Selling Shareholder
shall deliver to Buyer a duly endorsed certificate
representing the Shares being sold, against Buyer's
delivery of the consideration described in Section
1.2 above.
3. Option to Purchase Additional Shares.
3.1 Option. Provided that the sale and purchase of the
Shares set forth in Section 1.2 above is consummated,
Buyer shall have the option ("Option")
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to purchase from Selling Shareholder 350 additional
shares of APS ("Additional Shares"), constituting an
additional 35% of the total outstanding capital stock
of APS upon the terms and conditions set forth
herein. The purchase of the Additional Shares would
result in Buyer owning 55% of the total issued and
outstanding capital stock of APS.
3.2 Exercise of Option. Upon no less than sixty (60) days
prior written notice given at any time after December
31, 1998, and before December 31, 1999, Buyer may
exercise the Option and purchase the Additional
Shares described in Section 3.1 above. The total
price per share at which the Additional Shares may be
purchased is ten times the average of the annual net
earnings per share of APS, determined in accordance
with Generally Accepted Accounting Principles
("GAAP"), for the calendar years ending December 31,
1997, and December 31, 1998. The Option cannot be
exercised for less than all of the Additional Shares.
The exercise of the Option is further subject to
Buyer obtaining all necessary regulatory approvals
with respect to the purchase of the Additional
Shares. The Selling Shareholder shall provide such
assistance, at Buyer's expense, as Buyer may
reasonably request in obtaining all necessary
approvals.
3.3 Payment for Additional Shares. The purchase price for
the Additional Shares shall be paid in cash; unless
otherwise agreed by the Selling Shareholder and the
Buyer.
3.4 Closing; Delivery. The closing of any purchase and
sale of the Additional Shares shall be held at the
offices of APS no later than 60 days after written
notice is given by the Buyer of the exercise of the
Option pursuant to Section 3.2 above. At such
closing, the Selling Shareholder shall deliver to
Buyer a duly endorsed certificate representing the
Additional Shares being sold, against Buyer's
delivery of the consideration described in Section
3.2 above. Notwithstanding the foregoing, Buyer shall
be entitled to extent the period for closing the
purchase and sale of the Additional Shares by an
additional 90 days, if required by Buyer to obtain
all necessary regulatory approvals.
4. Representations and Warranties of the Selling Shareholder
The Selling Shareholder hereby represents and warrants to the
Buyer as follows:
4.1 Organization and Good Standing; Certificate and
Bylaws. The Selling Shareholder, APS and APSFMI are
corporations, each of which is duly organized,
validly existing and in good standing under the laws
of their respective states of organization and
domicile. Each of the Selling
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Shareholder, APS, and APSFMI has all requisite
corporate power and authority and holds all licenses,
permits, and other required authorizations from
governmental authorities necessary to conduct its
business and consummate the transaction contemplated
by this Agreement and the Shareholders Agreement (as
hereinafter defined). Selling Shareholder has
provided Buyer with true and complete copies of APS's
Certificate of Incorporation and Bylaws, each as
amended to date and presently in effect.
4.2 Corporate Power. The Selling Shareholder has all
requisite legal and corporate power and authority to
enter into this Agreement and the Shareholders
Agreement; and on the Closing Date the Selling
Shareholder will have all requisite legal and
corporate power and authority to sell the Shares and
to carry out and perform its obligations under this
Agreement and the Shareholders Agreement.
4.3 Subsidiaries. Schedule 4.3 sets forth a correct and
complete list of each corporation or other entity in
which APS owns or controls, directly or indirectly,
more than 5% of the outstanding equity securities.
4.4 Capitalization.
(a) The authorized capital stock of APS consists
(and on the date of the exercise of the
option by Buyer, will consist) of 1,000
shares of capital stock, all of which shares
are issued and outstanding as of the date of
this Agreement. All such issued and
outstanding shares of capital stock have
been duly authorized and validly issued and
are fully paid and non-assessable, and are
owned beneficially and of record by the
Selling Shareholder.
(b) The authorized capital stock of APSFMI
consists (and on the date of the exercise of
the option by Buyer, will consist) of 1,000
shares of capital stock, all of which shares
are issued and outstanding as of the date of
this Agreement. All such issued and
outstanding shares of capital stock have
been duly authorized and validly issued and
fully paid and non-assessable, and are owned
beneficially and of record by APS.
(c) All of the outstanding shares of Common
Stock of APS and APSFMI have been duly and
validly authorized, offered, issued, sold
and delivered in compliance with all
applicable federal and state securities
laws.
(d) Other than as described herein, there are
not outstanding any
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options, warrants, rights (including
conversion or preemptive rights) or
agreements for the purchase or acquisition
from the Selling Shareholder, APS or APSFMI,
or by the Selling Shareholder, APS or
APSFMI, of any shares of capital stock of
APS or APSFMI.
4.5 Authorization. The making and performance by the
Selling Shareholder of this Agreement and the
Shareholders Agreement have been duly authorized by
the Board of Directors of the Selling Shareholder
and, prior to the Closing, will have been duly
authorized by all other necessary corporate action
and will not violate any law, rule, regulation,
order, writ, judgment, decree, determination or award
presently in effect having applicability to APS or
the Selling Shareholder or any provision of APS's or
the Selling Shareholder's Certificate of
Incorporation, as amended, or Bylaws, as amended, or
result in a breach of or constitute a default under
any indenture, bank loan, credit agreement or other
agreement or instrument to which APS, APSFMI or the
Selling Shareholder is presently a party or by which
APS, APSFMI or the Selling Shareholder or its
property is presently bound or affected. This
Agreement constitutes the valid and legally binding
obligation of the Selling Shareholder enforceable in
accordance with its terms, subject to bankruptcy,
insolvency, reorganization, or other laws of general
application affecting the rights and remedies of
creditors. When sold to the Buyer, the Shares and the
Additional Shares will be duly and validly issued,
fully paid and non-assessable and will be free of any
liens or encumbrances; provided, however, that the
Shares and the Additional Shares will be subject to
the terms and provisions contained in the
Shareholders Agreement, a form of which is attached
hereto as Schedule 4.5 (the "Shareholders Agreement")
and will be subject to the transfer restrictions
imposed under state and federal securities laws.
4.6 Actions, Suits, Proceedings. Except as disclosed on
Schedule 4.6 hereto, there are no actions, suits or
proceedings pending or, to the knowledge of the
Selling Shareholder, threatened against APS or APSFMI
before any court or administrative agency. To the
knowledge of the Selling Shareholder, neither APS nor
APSFMI is presently subject to any material
outstanding order or decree of any court or
governmental agency.
4.7 Contracts and Commitments. Neither APS nor APSFMI
has not entered into any contracts, commitments or
instruments that create liabilities in excess of
$10,000.
4.8 Compliance with Other Instruments. Neither APS nor
APSFMI is in violation of or in default under any
term of its Certificate of Incorporation or Bylaws or
(in any material respect) of any mortgage, indenture,
contract,
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agreement, instrument, judgment, decree, order,
statute, rule or regulation applicable to APS or
APSFMI or any of their assets or other properties.
The execution, delivery, and performance of and
compliance with this Agreement and the delivery of
the Shares and the Additional Shares will not result
in any such violation or be in conflict with or
constitute a default under any such term, or result
in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the property or
assets of APS or APSFMI pursuant to any such term.
4.9 Private Placement. To the best of Selling
Shareholder's knowledge, based on the
representations, warranties and agreements of Buyer
contained herein (i) the offering of the Shares and
the Additional Shares qualifies as a private
placement and/or exempt transaction under all
applicable securities laws, and (ii) no registration
is required under any applicable securities laws with
respect to such offering, and any filings required to
be made have been, or will on a timely basis be, duly
made.
4.10 Brokerage. No person is entitled, directly or
indirectly, to compensation from APS by reason of any
agreement or understanding with APS or the Selling
Shareholder, as a broker or finder, in connection
with the sale and purchase of the Shares and the
Additional Shares as contemplated by this Agreement.
Except for any obligations agreed to in writing by
the Buyer, the Selling Shareholder agrees to
indemnify and hold the Buyer and its agents and
representatives harmless against and in respect of
any claims, damages, suits, obligations, liabilities,
or expenses (including, without limitation,
reasonable attorneys' fees and expenses) arising out
of or relating to the assertion of any brokerage or
finder's fee or other commission based on actions by
the Selling Shareholder or APS relative to this
Agreement or the transactions contemplated thereby.
4.11 Financial Statements. The Selling Shareholder has
furnished Buyer with an unaudited balance sheet and
income statement of APS as of, and for the period
ending, December 31, 1996, which financial statements
were prepared for internal purposes only (the
"Financial Statements"). The Financial Statements
have been prepared in accordance with GAAP except
that such Financial Statements contain no footnotes,
no statement of cash flows and no provision for
Federal income taxes. To the best of the Selling
Shareholder's knowledge, the Financial Statements
present fairly the financial condition of APS as of
the date thereof, as well as any changes in capital
and surplus and in the resulting operations for the
same period, all in accordance with GAAP, except as
provided herein. Also, to the best of the Selling
Shareholder's knowledge, APS has no liabilities as of
December 31, 1996, other than as are reflected on the
Financial Statements, except for
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liabilities subsequently arising in the ordinary
course of APS's business, which subsequent
liabilities have not materially adversely changed the
financial condition of APS, and contractual
liabilities arising in the ordinary course of either
APS's or APSFMI's business. Notwithstanding the
foregoing, Buyer acknowledges and agrees that Selling
Shareholder anticipates causing APS to dividend or
otherwise distribute to Selling Shareholder at or
prior to the Closing all earnings of APS for the
period between December 31, 1996, and the date of the
Closing.
4.12 Changes. To the best of the Selling Shareholder's
knowledge, since the date of the Financial
Statements, there has not been any event or condition
of any type that has materially adversely affected
either APS's or APFSMI's business, prospects,
conditions, affairs, operations, properties or
assets.
4.13 Title To Property And Assets; Liabilities. Each of
APS and APSFMI own their respective property free and
clear of all mortgages, liens and encumbrances. With
respect to any property they lease, each of APS and
APSFMI are in compliance with such leases and, to the
best of Selling Shareholder's knowledge, hold a valid
leasehold interest free of any liens, claims or
encumbrances.
4.14 Taxes. Each of APS and APSFMI is included in the
consolidated Federal income tax return of Selling
Shareholder for Federal income tax purposes.Each of
APS and APSFMI has accurately prepared and timely
filed all state and municipal tax returns that are
required to be filed by it and has paid or made
provisions for the payment of all taxes that have
become due pursuant to such returns. No deficiency
assessment or proposed adjustment of APS's or
APSFMI's Federal income taxes or state or municipal
taxes is pending and Selling Shareholder has no
knowledge of any proposed liability for any tax to be
imposed upon APS's or APSFMI's properties or assets.
4.15 Management Agreement. To the best of the Selling
Shareholder's knowledge, the Management Agreement of
Attorney-In-Fact (the "Attorney- In-Fact") for
American Physicians Insurance Exchange ("APIE"),
including amendments 1 and 2 thereto, (a copy of
which is attached as Schedule 4.15), between APSFMI
and APIE, has not been otherwise amended, is
currently valid, in full force and effect, binding
and enforceable in accordance with its terms.
4.16 Misleading Statements. No representation or warranty
by the Selling Shareholder in this Agreement or in
any written statement or certificate furnished by the
Selling Shareholder, APS or APSFMI to the Buyer
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pursuant to this Agreement or in connection with the
transactions contemplated by this Agreement, or in
any related agreements, separately or when taken
together, contains or will contain any untrue
statement of a material fact or omits or will omit to
state a material fact necessary to make the
statements made not misleading.
5. Representations and Warranties of the Buyer.
The Buyer hereby represents and warrants to the Selling
Shareholder as follows:
5.1 Organization and Good Standing. The Buyer is a
corporation duly organized, validly existing and in
good standing under the laws of the State of Florida.
The Buyer has all requisite power and authority, and
holds all licenses, permits, and other required
authorizations from governmental authorities,
necessary to conduct its business and consummate the
transactions contemplated by this Agreement, the
Shareholders Agreement the Managing General Agency
Agreement (the "Agency Agreement") entered into by
Buyer in connection with the transactions
contemplated hereby, and the Reinsurance Agreement
(the "Reinsurance Agreement") entered into by Buyer
in connection with the transactions contemplated
hereby. For purposes of this Agreement, the
Shareholders Agreement, the Agency Agreement and the
Reinsurance Agreement are collectively referred to as
the "Ancillary Agreements."
5.2 Power and Authority. The Buyer has all requisite
legal power and authority to enter into this
Agreement and the Ancillary Agreements and to carry
out and perform its obligations under the terms of
this Agreement and the Ancillary Agreements.
5.3 Authorization. The making and performance by the
Buyer of this Agreement and the Ancillary Agreements
have been duly authorized and, prior to the Closing,
will have been duly authorized by all other necessary
legal action (if any) and will not violate any law,
rule, regulation, order, writ, judgment, decree,
determination, or award presently in effect having
applicability to the Buyer or any provisions of the
Buyer's organizational documents, as amended, or
result in a breach of or constitute a default under
any indenture, bank loan, credit agreement, other
agreement or instrument to which the Buyer is
presently a party or by which the Buyer or its
property is presently bound or affected. This
Agreement and the Ancillary Agreements constitute
valid and legally binding obligations of the Buyer
enforceable in accordance with their terms, subject
to bankruptcy, insolvency, reorganization or other
laws of general application affecting the rights and
remedies of creditors.
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5.4 Investment Plan. The Buyer is purchasing and
acquiring the Shares for its own account for
investment and not with a present view to, or for
sale in connection with, any distribution thereof or
any selling or granting any participation therein.
The Buyer does not have any contract, undertaking,
agreement, or arrangement with any person to sell,
transfer or grant participations to any third person
with respect to any of the Shares.
5.5 Restricted Securities. The Buyer understands that the
Shares will not be registered under the Securities
Act of 1933, as amended (the "1933 Act"), on the
basis that the sale provided for in this Agreement is
exempt from registration under the 1933 Act pursuant
to exemptions contained therein, and that the Selling
Shareholder's reliance on such exemptions is, in
part, predicated on the Buyer's representations set
forth herein.
5.6 Restrictive Legend. The Buyer acknowledges that the
certificates representing the Shares shall bear a
legend indicating the restrictions on transfer of the
Shares under the Shareholders Agreement and
applicable securities laws, and that appropriate stop
transfer instructions will be entered in the stock
records of APS.
5.7 Illiquidity. The Buyer understands that the Shares
may not be sold, transferred or otherwise disposed of
without registration under the 1933 Act or an
exemption therefrom and applicable state securities
laws or an exemption therefrom. In the absence of an
effective registration statement covering the Shares
or an available exemption from such registration, the
Shares may not be disposed of.
5.8 Sophistication. The Buyer is experienced in
evaluating and investing in companies such as APS, is
able to fend for itself in the transactions
contemplated by this Agreement, has such knowledge
and experience in financial and business matters as
to be capable of evaluating the merits and risks of
its investment, and has the ability to bear the
economic risk of its investment.
5.9 Misleading Statements. No representation or warranty
by the Buyer in this Agreement or in any written
statement or certificate furnished by the Buyer to
the Selling Shareholder or APS pursuant to this
Agreement or in connection with the transactions
contemplated by this Agreement or in any related
agreements, separately or when taken together,
contains or will contain any untrue statement of a
material fact or omits or will omit to state a
material fact necessary to make the statements made
not misleading.
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6. Affirmative Covenants of the Selling Shareholder
The Selling Shareholder covenants and agrees that:
6.1 Financial Information. Selling Shareholder will
furnish to Buyer:
(a) Within 60 days after the last day of each
fiscal quarter (except the last in each
fiscal year), a balance sheet and income
statement showing the financial conditions
and results of operations of APS and APSFMI
as of, and for the period then ended,
prepared in accordance with the same
methodology utilized in preparing the
Financial Statements; and
(b) As soon as practicable, and in any event not
later than 90 days after the close of each
fiscal year, audited, consolidated financial
statements of Selling Shareholder showing
the financial condition and result of
operations of Selling Shareholder and its
consolidated subsidiaries (including APS and
APSFMI), as of, and for the year ended,
prepared in accordance with GAAP
consistently applied.
6.2 Rights to Inspect. Selling Shareholder shall cause
APS and APSFMI to permit each record holder of the
Shares or its authorized representative at all
reasonable times during regular business hours and as
often as reasonably requested to visit and inspect,
at the record holder's expense, any of the properties
of each of APS and APSFMI, including their books and
records, and to make extracts therefrom and to
discuss the affairs, finances, and accounts of APS
and APSFMI with their officers.
6.3 Reasonable Efforts. The Selling Shareholder shall use
reasonable efforts to fulfill, as soon as
practicable, all of the conditions contained in
Section 10 hereof. Such efforts shall not require any
waiver of a condition to Closing or of any other term
or condition hereof.
7. Affirmative Covenant of the Buyer. The Buyer shall use
reasonable efforts to fulfill, as soon as practicable, all of
the conditions contained in Section 8 hereof. Such efforts
shall not require any waiver of a condition to Closing or of
any other term or condition hereof.
8. The Selling Shareholder's Conditions to Closing.
The obligation of the Selling Shareholder to sell the Shares
as contemplated in this Agreement shall be subject to the fulfillment on or
before the Closing of each of the following conditions:
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8.1 Representations and Warranties. The representations
and warranties of the Buyer contained in Section 5
shall be true and correct as of the Closing Date with
the same effect as though made on and as of such
date.
8.2 Approvals. All authorizations, approvals or permits,
or exemptions, of any governmental authority or
regulatory body of the United States or of any state
including but not limited to the Texas Insurance
Department that are required in connection with the
lawful issuance and sale of the Shares pursuant to
this Agreement, shall have been duly obtained and
shall be effective on and as of the Closing.
Furthermore, Buyer will have obtained a Certificate
of Authority to do business in Texas.
8.3 Performance. All covenants, agreements and conditions
contained in this Agreement to be performed or
complied with by the Buyer on or prior to the Closing
Date shall have been performed or complied with in
all material respects.
8.4 Compliance Certificates. The Buyer shall have
delivered to the Selling Shareholder a certificate
dated the Closing Date executed by a duly authorized
officer of the Buyer certifying to the fulfillment of
the conditions specified in this Section 8.
8.5 Proceedings and Documents. All proceedings of the
Buyer in connection with the transactions
contemplated hereby and all documents and instruments
incident to such transactions shall be satisfactory
in form and substance to the Selling shareholder, and
the Selling Shareholder shall have received all such
counterpart originals or certified or other copies of
such documents as it may reasonably request.
8.6 Execution of Ancillary Agreements. The Buyer shall
have executed and delivered the Ancillary Agreements.
9. The Buyer's Conditions of Closing.
The obligation of the Buyer to purchase the Shares as
contemplated in this Agreement shall be subject to the
fulfillment on or before the closing of each of the following
conditions:
9.1 Representations and Warranties. The representations
and warranties of the Selling Shareholder contained
in Section 4 hereof shall be true and correct as of
the Closing Date with the same effect as though made
on and as of such date.
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9.2 Approvals. All authorizations, approvals or permits,
or exemptions, of any governmental authority or
regulatory body of the United States or of any state
including but not limited to the Florida and Texas
Insurance Departments that are required in connection
with the lawful issuance and sale of the Shares
pursuant to this Agreement, shall have been duly
obtained and shall be effective on and as of the
Closing. Furthermore, Buyer will have obtained a
Certificate of Authority to do business in Texas.
9.3 No Amendments to Certificate of Incorporation or
Bylaws. Neither APS's nor APSFMI's Certificate of
Incorporation or Bylaws shall have been amended since
the date of this Agreement.
9.4 Performance. All covenants, agreements and conditions
contained in this Agreement to be performed or
complied with by APS or the Selling Shareholder on or
prior to the Closing Date shall have been performed
or complied with in all material respects.
9.5 Compliance Certificate. Selling Shareholder shall
have delivered to the Buyer a certificate or
certificates, executed by the President of the
Selling Shareholder, dated the Closing Date,
certifying to the fulfillment of the conditions
specified in this Section 9.
9.6 Proceedings and Documents. All corporate and other
proceedings of the Selling Shareholder in connection
with the transactions contemplated hereby and all
documents and instruments incident to such
transactions shall be satisfactory in form and
substance to the Buyer, and the Buyer shall have
received all such counterpart originals or certified
or other copies of such documents as it may
reasonably request.
9.7 Execution of Shareholders Agreement. The Selling
Shareholder shall have executed and delivered to
Buyer the Shareholders Agreement and Selling
Shareholder shall have used its reasonable best
efforts to have caused the execution and delivery by
its affiliates to Buyer of the duly executed
Ancillary Documents.
9.8 Opinion of Counsel. Selling Shareholder shall have
caused APIE to obtain an opinion of counsel addressed
to, and for the benefit of, Buyer from the law firm
of Xxxxx, Xxxxxx & Xxxxxxx, in a form reasonably
acceptable to the Buyer and the Selling Shareholder,
which Selling Shareholder will deliver to Buyer at or
before the Closing, to the effect that the
Attorney-In- Fact is valid and enforceable in
accordance with its terms. The Buyer agrees to
reimburse APIE in full for the legal fees and costs
incurred in obtaining such an opinion, which
reimbursement shall be delivered to APIE
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or Selling Shareholder at the Closing.
10. Indemnification.
10.1 Indemnification of Selling Shareholder. Selling
Shareholder hereby agrees to indemnify Buyer and hold
Buyer harmless from and against and in respect of,
all liabilities, losses, claims, costs or damages
(including reasonable attorneys' fees and
disbursements) (collectively, "Losses") incurred by
Buyer and resulting from or arising out of (i) any
breach or inaccuracy of any representations or
warranties by Selling Shareholder contained either
herein or in any certificate delivered pursuant
hereto, including any certificates delivered on the
Closing Date or (ii) any failure by Selling
Shareholder to perform any of its obligations
contained herein.
10.2 Indemnification of Buyer. Buyer hereby agrees to
indemnify Selling Shareholder and APS and hold
Selling Shareholder and APS harmless from and against
and in respect of, all Losses incurred by Selling
Shareholder or APS and resulting from or arising out
of (i) any breach or inaccuracy of any
representations or warranties by Buyer contained
herein or in any certificate delivered pursuant
hereto including any certificates delivered on the
Closing Date or (ii) any failure by Buyer to perform
any of its obligations contained herein.
11. Termination.
This Agreement may be terminated as to all parties hereto and the
transactions contemplated herein abandoned at any time prior to the Closing by:
(a) The mutual consent of the parties hereto;
(b) The Buyer at any time after May 31, 1997, if at such
time the conditions set forth in Section 9 hereof
have not been satisfied through no fault of the Buyer
and the Buyer gives APS and the Selling Shareholder
notice thereof; or
(c) The Selling Shareholder or APS at any time after May
31, 1997, if at such time the conditions set forth in
Section 8 hereof have not been satisfied through no
fault of the Selling Shareholder or APS and the
Selling Shareholder or APS gives the Buyer notice
thereof.
12. Confidentiality.
12.1 From and after the date hereof, unless otherwise
agreed to by the parties,
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each of the parties shall keep, and shall ensure that
its directors, executive officers, contractors,
consultants and agents keep, confidential all
information acquired from the other party pursuant to
this Agreement or otherwise, including the contents
of this Agreement and any document delivered pursuant
thereto or in connection therewith, except that the
foregoing restriction shall not apply to any
information that: (i) is or hereafter becomes
generally available to the public other than by
reason of any default with respect to a
confidentiality obligation under this Agreement, (ii)
was already known to the recipient as evidenced by
prior written documents in its possession (unless the
information is covered by a prior confidentiality
agreement between the parties), (iii) is disclosed to
the recipient by a third party who is not in default
of any confidentiality obligation to the disclosing
party hereunder, (iv) is developed by or on behalf of
the receiving party, without reliance on confidential
information received hereunder, (v) is submitted by
the recipient to governmental authorities or
regulatory bodies to facilitate the issuance of
approvals necessary or appropriate for the operation
of their businesses, provided that reasonable
measures shall be taken to assure confidential
treatment of such information, (vi) is provided by
the recipient to third parties under appropriate
terms and conditions, including confidentiality
provisions substantially equivalent to those in this
Agreement or (vii) is otherwise required to be
disclosed in compliance with applicable laws or order
by a court or other government authority or
regulatory body having competent jurisdiction.
Notwithstanding the foregoing, Buyer and Selling
Shareholder each agree that they will endeavor in
good faith to agree upon joint press releases to be
released by each of them within twenty-four hours
after (i) the execution of this Agreement by all
parties hereto, and (ii) the Closing; provided that
in the event of a failure to so agree, each party
shall be entitled to distribute press releases
prepared by it concerning the entering into of this
Agreement and the Closing of the transactions
contemplated herein as each party deems reasonably
necessary for purposes of ensuring compliance with
applicable securities laws. Otherwise, no press
release or similar public announcement or disclosure
concerning this Agreement or the transactions
contemplated herein shall be made by a party hereto
without the prior written consent of the other party.
Each party shall be entitled, in addition to any
other right or remedy it may have, at law or in
equity, to an injunction, without the posting of any
bond or other security, enjoining or restraining the
other party from any violation or threatened
violation of this Section.
13. Miscellaneous.
13.1 Modification to Agreement. This Agreement may not be
changed orally but
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only by an agreement in writing, signed by the party
against whom enforcement of any waiver, change,
modification or discharge is sought. Subject to the
foregoing, any of the terms or conditions of this
Agreement may be waived or modified at any time by
the party entitled to the benefit thereof, but no
such waiver, express or implied, shall affect or
impair the right of the waiving party to require
observance performance or satisfaction of either (i)
the same term or condition as it applies on a
subsequent or previous occasion, or (ii) any other
term or condition hereof.
13.2 Applicable Law. This Agreement, its construction and
the rights, remedies, and obligations arising by,
under, through or on account of it shall be governed
by the laws of the State of Delaware, excluding its
conflict of laws rules.
13.3 Binding Effect. If any portion of this Agreement is
declared by a court of competent jurisdiction to be
invalid or unenforceable, such declaration shall not
affect the validity of the remaining provisions. This
Agreement shall inure to the benefit of and be
binding upon the representatives, successors, and
assigns of each party. This Agreement is not intended
for the benefit of anyone other than the signatories
hereto, and there shall be no third party
beneficiaries hereof.
13.4 Integration. This Agreement, together with the
Ancillary Agreements related hereto, constitutes a
final and complete integration of the agreement of
the parties respecting the subject matter hereof,
thereby superseding all previous oral and written
agreements. There are no contemporaneous oral
agreements.
13.5 Notices. Any notice hereunder (including notices of
waiver provided for or permitted hereunder), shall be
in writing and hand delivered or sent by certified
mail return receipt requested, nationally recognized
overnight courier service or facsimile transmission,
addressed to the parties at their respective
addresses set forth below:
Selling Shareholder:
American Physicians Services Group, Inc.
0000 Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxx X-000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
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With a copy to:
Xxxxx, Xxxxx & Xxxxxxxxxx, P.C.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. XxXxxx
The Buyer:
Florida Physicians Insurance Company, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx
With a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx, LLP
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Any such notice shall be deemed given when so personally delivered or
sent by facsimile transmission (provided confirmation is received immediately
thereafter) or if mailed three (3) business days after the date of deposit in
the mail or if sent by overnight courier one (1) business day after the date of
delivery to the courier service marked for overnight delivery. A party may
change its or his address for notice by giving notice as provided hereunder.
13.6 Pronouns, Counterparts. In construing the words of
this Agreement, plural constructions shall include
the singular and singular constructions shall include
the plural. No significance shall be attached to
whether a pronoun is masculine, feminine or neuter.
The words "herein," "hereof" and other similar
compounds of the word "here" shall mean and refer to
his entire Agreement and not to any particular
provisions, section or subsection. Paragraph captions
in this Agreement are for ease of reference only and
shall be given no substantive or restrictive meaning
or significance whatsoever. This Agreement may be
executed in multiple counterparts, each of which
shall be an original regardless of whether all
parties sign the same document. Regardless of the
number of counterparts, they shall constitute one and
the same agreement. It shall not be necessary in
making proof of this Agreement to produce or account
for more than one counterpart.
13.7 Survival of Representations, Warranties, Covenants
and Agreements. The representations, warranties,
covenants and agreements set forth in this Agreement
shall survive the Closing Date and the consummation
of the transactions contemplated hereby for a period
of two years.
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13.8 Attorneys' Fees. In any action brought to enforce the
provisions of this Agreement (including a declaratory
judgment action), the prevailing party shall be
entitled to recover from the other party the costs of
this action, including reasonable attorneys' fees,
whether incurred at trial, in settlement or mediation
or on appeal.
13.9 Assignment. No party may assign any of its or his
rights or obligations under this Agreement without
the prior written consent of the other parties. This
Agreement shall inure to the benefit of, and be
binding upon, the successors and permitted assigns of
the parties hereto.
13.10 Further Assurances. From and after the Closing, each
party shall execute and deliver such documents and
take such other actions as the other parties may
reasonably request to further effect or evidence the
purposes and intent of this Agreement.
13.11 Definition of Knowledge. Whenever there are
references in this Agreement to the "knowledge" of a
party; (i) Selling Shareholder shall be deemed to
have knowledge of the applicable fact or matter
whenever any of the members of the board of
directors, or executive officers, of Selling
Shareholder, APS, APIE or APSFMI, have actual
knowledge of the applicable fact or matter, and (ii)
Buyer shall be deemed to have knowledge of the
applicable fact or matter whenever any of the members
of the board of directors, or any of the executive
officers, of Buyer have actual knowledge of the
applicable fact or matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
1st day of April, 1997.
AMERICAN PHYSICIANS SERVICE GROUP, INC.
By________________________________________
FLORIDA PHYSICIANS INSURANCE
COMPANY, INC.
By________________________________________
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SCHEDULE 4.3
List each corporate or other entity in which APS Insurance Services, Inc. owns
or controls, directly or indirectly, more than 5% of the outstanding equity
securities.
Name Percent Ownership
-------------------------- ---------------------
1.) APS Facilities Management, Inc. 100%
2.) American Physicians Insurance
Agency, Inc. 100%
