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EXHIBIT 4.4
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UNITED REGISTRATION RIGHTS AGREEMENT
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This United Registration Rights Agreement (this "Agreement"), dated
as of July 26, 2000, is between CERES GROUP, INC., a Delaware corporation (the
"Company"), and UNITED INSURANCE COMPANY OF AMERICA, an Illinois insurance
corporation ("United").
R E C I T A L S
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United has agreed to purchase Convertible Voting Preferred Stock,
par value $0.001 per share, of the Company (the "Preferred Shares") which is
convertible into shares of common stock, par value $0.001 per share, of the
Company (the "Common Shares") pursuant to that certain Certificate of Amendment
to the Company's Certificate of Incorporation and that certain Subscription
Agreement of even date herewith provided that the parties hereto enter into this
Agreement.
The Company deems it desirable to enter into this Agreement in order
to induce United to purchase the Preferred Shares pursuant to the Subscription
Agreement.
AGREEMENTS
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In consideration of the premises and the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used in this Agreement.
"Certificate of Amendment" means the Certificate of Amendment of the
Company's Certificate of Incorporation, dated July 25, 2000.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the Common Stock, par value $0.001, of the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Other Registrable Shares" has the meaning set forth in Section 2.1.
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"Person" means a natural person, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or other entity, or a governmental
entity or any department, agency or political subdivision thereof.
"Preferred Shares" means the convertible voting preferred stock, par
value $0.001 per share, which is convertible into Common Shares of the Company
as described in the Certificate of Amendment.
"Public Offering" means any offering by the Company of its equity
securities to the public pursuant to an effective registration statement under
the Securities Act or any comparable statement under any comparable federal
statute then in effect.
"Registration Rights Agreement" means the Amended and Restated
Registration Rights Agreement between the Company and the persons and entities
set forth on the signature pages thereto, as amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Stock Purchase Agreement" means the Amended and Restated Stock
Purchase Agreement, dated as of March 30, 1998, by and among the Company,
Strategic Acquisition Partners, L.L.C., Insurance Partners, L.P. and Insurance
Partners Offshore (Bermuda), L.P.
"Subscription Agreement" means the Subscription Agreement, dated as
of April 19, 2000, by and among the Company and United.
"United Registrable Shares" means at any time (i) any Common Shares
then outstanding which were issuable upon the conversion of the Preferred
Shares; (ii) any Common Shares then outstanding which were issued as, or were
issued directly or indirectly upon the conversion or exercise of other
securities issued as a dividend or other distribution with respect or in
replacement of any shares referred to in (i); and (iii) any Common Shares then
issuable directly or indirectly upon the conversion or exercise of other
securities which were issued as a dividend or other distribution with respect to
or in replacement of any shares referred to in (i); PROVIDED, HOWEVER, that
United Registrable Shares shall not include any shares which have been
registered pursuant to the Securities Act or which have been sold to the public
pursuant to Rule 144 of the Commission under the Securities Act. For purposes of
this Agreement, a Person will be deemed to be a holder of United Registrable
Shares whenever such Person has the then-existing right to acquire such United
Registrable Shares, whether or not such acquisition actually has been effected.
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2. DEMAND REGISTRATION.
2.1 REQUESTS FOR REGISTRATION. Subject to the terms of this
Agreement, beginning three years from the date of this Agreement, the holders of
all, but not less than all, the Common Shares then outstanding which were issued
upon the conversion of the Preferred Shares, may request registration under the
Securities Act of all, but not less than all, the Common Shares then outstanding
which were issued upon the conversion of the Preferred Shares on Form S-1 or any
similar long-form registration ("Long-Form Registrations") or, if available,
then at the option of the Company, on Form S-2 or S-3 or any similar short-form
registration ("Short-Form Registrations"). Within ten (10) days after receipt of
any request pursuant to this Section 2.1, the Company will give written notice
of such request to all other holders of securities registrable under the
Registration Rights Agreement ("Other Registrable Shares"), subject to Section
2.4, and will include in such registration all Other Registrable Shares with
respect to which the Company has received written requests for inclusion within
thirty (30) days after delivery of the Company's notice. All registrations
requested pursuant to this Section 2 are referred to herein as "Demand
Registrations."
2.2 PAYMENT OF EXPENSES FOR DEMAND REGISTRATIONS. The Company
will pay all Registration Expenses (as defined in Section 6 below) for one
Demand Registration initiated by the holders of all, but not less than all, the
Common Shares then outstanding which were issued upon the conversion of the
Preferred Shares (including those under Section 2.3) (whether a Long-Form
Registration or a Short-Form Registration). A registration will not count as one
of the Company- paid Demand Registrations until it has become effective and the
holders of all, but not less than all, the Common Shares then outstanding which
were issued upon the conversion of the Preferred Shares are able to register and
sell at least 90% of such Common Shares requested to be included in such
registration (or in the case of a shelf registration, it remains effective for
not less than 180 days); PROVIDED, HOWEVER, that in any event the Company will
pay all Registration Expenses in connection with any registration initiated as a
Demand Registration even though such registration shall not count as a
Company-paid Demand Registration. In a Demand Registration other than the Demand
Registration referred to in the first sentence of this Section (including those
under Section 2.3), the Registration Expenses of such registration shall be
borne by the holders of United Registrable Shares and Other Registrable Shares
to be registered thereunder PRO RATA based on the number of United Registrable
Shares and Other Registrable Shares and other securities requested or permitted
to be included in such registration pursuant to the terms of this Agreement and
the Registration Rights Agreement.
2.3 SHORT-FORM REGISTRATIONS. Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form. The Company will use its best efforts to make Short-Form
Registrations available for the sale of United Registrable Shares. If a
Short-Form Registration is to be an underwritten public offering, and if the
underwriters for marketing or other reasons request the inclusion in the
registration statement of information which is not required under the Securities
Act to be included in a registration statement on the applicable form for the
Short-Form Registration, the Company will provide such information as may be
reasonably requested for inclusion by the underwriters in the Short-Form
Registration.
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2.4 PRIORITY. If a Demand Registration is an underwritten public
offering and the managing underwriters advise the Company in writing that in
their opinion the inclusion of the number of United Registrable Shares and other
securities requested to be included (by the Company or others) creates a
substantial risk that the price per Common Share will be reduced, the Company
will include in such registration, prior to the inclusion of any securities
which are not United or Other Registrable Shares, the number of United
Registrable Shares or Other Registrable Shares requested to be included which in
the opinion of such underwriters can be sold without creating such a risk, PRO
RATA among the respective holders of United Registrable Shares and Other
Registrable Shares on the basis of the number of United Registrable Shares or
Other Registrable Shares owned by such holders, with further successive PRO RATA
allocations among the holders of United Registrable Shares or Other Registrable
Shares if any such holder of United Registrable Shares or Other Registrable
Shares has requested the registration of less than all such United Registrable
Shares or Other Registrable Shares it is entitled to register.
2.5 RESTRICTIONS. The Company will not be obligated to effect any
Demand Registration within 180 days after the effective date of a previous
"Demand Registration" made pursuant to the Registration Rights Agreement. The
Company may postpone for up to ninety (90) days the filing or the effectiveness
(but not the preparation) of a registration statement for a Demand Registration
if the Board of Directors of the Company reasonably and in good faith determines
that such filing would require a disclosure of a material fact that would have a
material adverse effect on the Company or any plan by the Company to engage in
any acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or other significant transaction. In order
to postpone the filing of a registration statement pursuant to this Section 2.5,
the Company shall promptly (but in any event within ten (10) days), upon
determining to seek such postponement, deliver to each holder who has requested
the registration of all or any part of its United Registrable Shares, a
certificate signed by an executive officer of the Company stating that the
Company is postponing such filing pursuant to this Section 2.5 and a general
statement of the reason for such postponement and an approximation of the
anticipated delay. Within twenty (20) days after receiving such certificate, the
holders of a majority of the United Registrable Shares held who have requested
the registration of all or any part of their respective United Registrable
Shares and for which registration was previously requested may withdraw such
demand request by giving written notice to the Company; if withdrawn, the demand
request shall be deemed not to have been made for all purposes of this
Agreement. The Company may postpone the filing of a particular registration
statement pursuant to this Section 2.5 only once.
2.6 SELECTION OF UNDERWRITERS. The holders of at least a majority
of the United Registrable Shares included in a Demand Registration pursuant to
Section 2.1 of this Agreement shall have the right to select the investment
banker(s) and manager(s) to administer the offering, subject to the Company's
approval which will not be unreasonably withheld or delayed, and any existing
contract rights of Advest, Inc.
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3. PIGGYBACK REGISTRATION.
3.1 RIGHT TO PIGGYBACK. Beginning one year from the date of this
Agreement, whenever the Company proposes to register any of its equity
securities under the Securities Act (other than pursuant to a Demand
Registration hereunder or on Form S-8 or S-4 or any successor form thereto) and
the registration form to be used may be used for the registration of any United
Registrable Shares (a "Piggyback Registration"), the Company will give prompt
written notice (which shall be given not less than thirty (30) days prior to the
effective date of the registration statement) to all holders of the United
Registrable Shares of its intention to effect such a registration and will
include in such registration all United Registrable Shares (in accordance with
the priorities set forth in Sections 3.2 and 3.3 below) with respect to which
the Company has received written requests for inclusion within fifteen (15) days
after the delivery of the Company's notice.
3.2 PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in the registration
creates a substantial risk that the price per Common Share will be reduced, the
Company will include in such registration FIRST, the securities that the Company
proposes to sell, SECOND, the United Registrable Shares and Other Registrable
Shares requested to be included in such registration, PRO RATA among the holders
of such United Registrable Shares and Other Registrable Shares on the basis of
the number of shares which are owned by such holders, and THIRD, other
securities requested to be included in such registration.
3.3 PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in the registration creates a substantial risk that the price per Common Share
will be reduced, the Company will include in such registration FIRST, the
securities requested to be included therein by the holders requesting such
registration and the United Registrable Shares and Other Registrable Shares
requested to be included in such registration, PRO RATA among the holders of
such securities on the basis of the number of Common Shares or United
Registrable Shares and Other Registrable Shares which are owned by such holders,
and SECOND, other securities requested to be included in such registration.
3.4 OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to United Registrable Shares pursuant to
Section 2 or pursuant to this Section 3, and if such previous registration has
not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least 180 days has elapsed from the effective date of such
previous registration.
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3.5 SELECTION OF UNDERWRITERS. In connection with any Piggyback
Registration, the holders of at least a majority of the United Registrable
Shares and Other Registrable Shares requested to be registered shall have the
right to select the managing underwriters (subject to the approval of the
Company which shall not be unreasonably withheld or delayed) to administer any
offering of the Company's securities in which the Company does not participate,
and the Company will have such right in any offering in which it participates.
4. HOLDBACK AGREEMENTS.
4.1 HOLDERS' AGREEMENTS. Each holder of United Registrable Shares
agrees not to effect any public sale or distribution of equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities or make any demand for registration under Sections 2 or 3
hereof, during the seven (7) days prior to, and during the ninety (90) days
following, the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration in which United Registrable Shares are
included (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree. Nothing
herein shall prevent a holder of United Registrable Shares that is a partnership
from making a distribution of United Registrable Shares to its partners, a
holder of United Registrable Shares that is a trust from making a distribution
of United Registrable Shares to its beneficiaries or a holder of United
Registrable Shares that is a corporation from making a distribution of United
Registrable Shares to its stockholders, provided that the transferees of such
United Registrable Shares agree to be bound by the provisions of this Agreement
to the extent the transferor would be so bound.
4.2 COMPANY'S AGREEMENTS. The Company agrees (i) not to effect
any public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven (7) days prior to, and during the ninety (90) days following, the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or
pursuant to registrations on Form S-8 or any successor form), unless the
underwriters managing the registered public offering otherwise agree, (ii) to
use all reasonable efforts to cause each holder of at least five percent (5%)
(on a fully diluted basis) of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities to agree not
to effect any public sale or distribution of any such securities during such
period (except as part of such underwritten registration, if otherwise
permitted), unless the underwriters managing the registered public offering
otherwise agree, subject to the registration obligations of the Company under
the Common Share Purchase Warrants (as defined in the Stock Purchase Agreement),
and (iii) if requested by the underwriters managing the registered public
offering, to use all reasonable efforts to cause each other holder of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, purchased from the Company at any time (other than in a
registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered
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public offering otherwise agree, subject to the registration obligations of the
Company under the Common Share Purchase Warrants (as defined in the Stock
Purchase Agreement).
5. REGISTRATION PROCEDURES. Whenever the holders of United
Registrable Shares have requested that any United Registrable Shares be
registered pursuant to this Agreement, the Company will use its best efforts to
effect the registration and sale of such United Registrable Shares in accordance
with the intended method of disposition thereof and, pursuant thereto, the
Company will as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
with respect to such United Registrable Shares and use its best efforts to cause
such registration statement to become effective (provided that before filing a
registration statement or prospectus, or any amendments or supplements thereto,
the Company will furnish copies of all such documents proposed to be filed to
the counsel or counsels for the sellers of the United Registrable Shares covered
by such registration statement);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus(es) used in
connection therewith as may be necessary to keep such registration statement
effective for a period of not less than nine months and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of United Registrable Shares and the
underwriters such number of copies of such registration statement, each
amendment and supplement thereto, the prospectus(es) included in such
registration statement (including each preliminary prospectus) and such other
documents as such seller or underwriter may reasonably request in order to
facilitate the disposition of the United Registrable Shares;
(d) use its best efforts to register or qualify such United
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any seller or underwriter reasonably requests and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such seller or underwriter to consummate the disposition in such
jurisdictions of the United Registrable Shares (provided that the Company will
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subparagraph or
(ii) consent to general service of process in any such jurisdiction);
(e) promptly notify each seller of such United Registrable
Shares, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading, and, at the request of any such seller, the Company will
prepare a supplement
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or amendment to such prospectus or registration statement so that, as thereafter
delivered to the purchasers of such United Registrable Shares, such prospectus
or registration statement will not contain any untrue statement of a material
fact or omit to state any fact necessary to make the statements therein not
misleading;
(f) cause all such United Registrable Shares to be (i) listed on
each securities exchange on which similar securities issued by the Company are
then listed, (ii) authorized to be quoted and/or listed (to the extent
applicable) on the NASD Automated Quotation System or The Nasdaq National Market
if the United Registrable Shares so qualify, or (iii) if no similar securities
issued by the Company are then listed on a securities exchange, a securities
exchange selected by the holders of at least a majority of the United
Registrable Shares included in such registration;
(g) provide a transfer agent and registrar for all such United
Registrable Shares not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
at least a majority of the United Registrable Shares being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such United Registrable Shares (including, but not limited to,
effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of United
Registrable Shares, any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) advise each seller of such United Registrable Shares,
promptly after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the Commission or any state securities or other
regulatory authority suspending the effectiveness of such registration statement
or the initiation or threatening of any proceeding for such purpose and promptly
use all best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(k) at least two business days prior to the filing of any
registration statement or prospectus, or any amendment or supplement to such
registration statement or prospectus, furnish a copy thereof to each seller of
such United Registrable Shares and refrain from filing any such registration
statement, prospectus, amendment or supplement to which counsel selected by the
holders of at least a majority of the United Registrable Shares being registered
shall
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have reasonably objected on the grounds that such document does not comply in
all material respects with the requirements of the Securities Act or the rules
and regulations thereunder, unless, in the case of an amendment or supplement,
in the opinion of counsel for the Company the filing of such amendment or
supplement is reasonably necessary to protect the Company from any liabilities
under any applicable federal or state law and such filing will not violate
applicable laws;
(l) at the request of any seller of such United Registrable
Shares in connection with an underwritten offering, furnish on the date or dates
provided for in the underwriting agreement: (i) an opinion of counsel, addressed
to the underwriters and the sellers of United Registrable Shares, covering such
matters as such underwriters and sellers may reasonably request, including such
matters as are customarily furnished in connection with an underwritten offering
and (ii) a letter or letters from the independent certified public accountants
of the Company addressed to the underwriters and the sellers of United
Registrable Shares, covering such matters as such underwriters and sellers may
reasonably request, in which letter(s) such accountants shall state, without
limiting the generality of the foregoing, that they are independent certified
public accountants within the meaning of the Securities Act and that in their
opinion the financial statements and other financial data of the Company
included in the registration statement, the prospectus(es), or any amendment or
supplement thereto, comply in all material respects with the applicable
accounting requirements of the Securities Act;
(m) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than thirty (30) days after the end of the twelve (12) month period
beginning with the first day of the Company's first fiscal quarter commencing
after the effective date of a registration statement, which earnings statement
shall cover such twelve (12) month period, and which requirement will be deemed
to be satisfied if the Company timely files complete and accurate information on
Forms 10-Q, 10-K, and 8-K under the Exchange Act and otherwise complies with
Rule 158 under the Securities Act;
(n) if requested by the managing underwriter or any seller
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or any seller reasonably requests to be
included therein, including, without limitation, with respect to the United
Registrable Shares being sold by such seller, the purchase price being paid
therefor by the underwriters and with respect to any other terms of the
underwritten offering of the United Registrable Shares to be sold in such
offering, and promptly make all required filings of such prospectus supplement
or post-effective amendment;
(o) cooperate with each seller and each underwriter participating
in the disposition of such United Registrable Shares and their respective
counsel in connection with any filings required to be made with the NASD;
(p) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act; and
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(q) notify each seller of United Registrable Shares promptly of
any request by the Commission for the amending or supplementing of such
registration statement or prospectus or for additional information.
6. REGISTRATION EXPENSES.
6.1 COMPANY'S EXPENSES. Except as provided in Section 2.2 hereof,
all expenses incident to the Company's performance of or compliance with this
Agreement, including, but not limited to, all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, and fees and disbursements of counsel for the
Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), will be borne
by the Company. In addition, the Company will pay its internal expenses
(including, but not limited to, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance obtained by
the Company; the expenses and fees for listing the securities to be registered
on each securities exchange, expenses incurred in obtaining any comfort letters,
and all fees and expenses associated with filings required to be made with the
NASD.
6.2 HOLDER'S EXPENSES. Except as provided in Section 2.2 hereof,
in connection with any registration statement in which United Registrable Shares
are included, the Company will reimburse the holders of United Registrable
Shares covered by such registration for the reasonable cost and expenses
incurred by such holders in connection with such registration, including, but
not limited to, reasonable fees and disbursements of one counsel chosen by the
holders of at least a majority of such United Registrable Shares.
7. INDEMNIFICATION.
7.1 BY THE COMPANY. The Company agrees to indemnify and
reimburse, to the fullest extent permitted by law, each holder of United
Registrable Shares, its officers and directors and each Person who controls such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses (including, but not limited to, attorney's
fees) caused by any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus,
or any amendment thereof or supplement thereto, or any omission or alleged
omission of a material fact, required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same are directly
caused by statements or omissions made in reliance on and in strict conformity
with the information furnished in writing to the Company by such holder
regarding such holder expressly for use therein or by such holder's failure to
deliver a copy of the prospectus or any amendments or supplements thereto after
the Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company will indemnify
such underwriters, their
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officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the extent customary. The payments
required by this Section 7.1 will be made periodically during the course of the
investigation or defense, as and when bills are received or expenses incurred,
subject to an obligation of repayment in the event such indemnity is determined
not to be owed.
7.2 BY EACH HOLDER. In connection with any registration statement
in which a holder of United Registrable Shares is participating, each such
holder will furnish to the Company in writing such information regarding such
holder as the Company reasonably requests for use in connection with any such
registration statement, preliminary prospectus or prospectus, or any amendment
or supplement thereto and, to the extent permitted by law, will indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus, or any amendment thereof or supplement thereto, or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information so
furnished in writing by such holder specifically for inclusion in the
registration statement or prospectus; provided, that the obligation to indemnify
will be several, and not joint and several, among such sellers of United
Registrable Shares, and the liability of each such seller of United Registrable
Shares will be limited to, the net amount received by such seller from the sale
of United Registrable Shares pursuant to such registration statement; further
provided, however, that such seller of United Registrable Shares shall not be
liable in any such case to the extent that prior to the filing of any such
registration statement or prospectus or amendment thereof or supplement thereto,
such seller has furnished in writing to the Company information expressly for
use in such registration statement or prospectus or any amendment thereof or
supplement thereto that corrected or made not misleading information previously
furnished to the Company.
7.3 PROCEDURE. Any Person entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying Person of any claim with
respect to which it seeks indemnification (provided that the failure to give
such notice shall not limit the rights of such Person except to the extent such
failure to provide notice materially prejudices the indemnifying Person) and
(ii) unless in such indemnified Person's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying Person to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified Person;
provided, however, that any Person entitled to indemnification hereunder shall
have the right to employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of
such Person unless (x) the indemnifying party has agreed to pay such fees or
expenses, or (y) the indemnifying party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such Person. If such
defense is not assumed by the indemnifying party as permitted hereunder, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without
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its consent (but such consent will not be unreasonably delayed or withheld). If
such defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (i) such settlement or compromise contains a full and
unconditional release of the indemnified party or (ii) the indemnified party
otherwise consents in writing. An indemnifying Person who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying Person with respect to such claim, unless in the reasonable
judgment of any indemnified Person a conflict of interest may exist between such
indemnified Person and any other of such indemnified parties with respect to
such claim in which event the costs of such additional counsel shall be borne by
the indemnifying Person.
7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 7.1 or 7.2 are unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages, or expenses (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
liabilities, claims, damages, or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the actions
which resulted in the losses, liabilities, claims, damages, or expenses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 7.4
were determined by pro rata allocation (even if the holders or any underwriters
or all of them were treated as one Person for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in this Section 7.4, The amount paid or payable by an indemnified
party as a result of the losses, liabilities, claims, damages, or expenses (or
actions in respect thereof referred to above) shall be deemed to include any
legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or, except as provided in Section 7.3, defending
any such action or claim. Notwithstanding the provisions of this Section 7.4, no
holder shall be required to contribute an amount greater than the dollar amount
by which the net proceeds received by such holder with respect to the sale of
any United Registrable Shares exceeds the amount of damages which such holder
has otherwise been required to pay by reason of any and all untrue or alleged
untrue statements of material fact or omissions or alleged omissions of material
fact made in any registration statement, prospectus, or preliminary prospectus
or any amendment thereof or supplement thereto, related to such sale of United
Registrable Shares. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The holders' obligations in this Section 7.4 to contribute
shall be several in proportion to the amount of United Registrable Shares
registered by them and not joint. If indemnification is available under this
Section 7, the indemnifying parties shall indemnify each indemnified party to
the full extent
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provided in Sections 7.1 and 7.2 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 7.4 subject, in the case of the holders, to the
limited dollar amounts get forth in Section 7.2.
7.5 SURVIVAL. The indemnification provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified Person or any officer, director or
controlling Person of such indemnified Person and will survive the transfer of
securities. The Company also agrees to make such provisions as are reasonably
requested by any indemnified Person for contribution to such Person in the event
the Company's indemnification is unavailable for any reason.
8. COMPLIANCE WITH RULE 144 AND RULE 144A. At the request of any
holder of United Registrable Shares who proposes to sell securities in
compliance with Rule 144 of the Commission, the Company will (i) forthwith
furnish to such holder a written statement of compliance with the filing
requirements of the Commission as set forth in Rule 144, as such rule may be
amended from time to time and (ii) make available to the public and such holders
such information as will enable the holders of United Registrable Shares to make
sales pursuant to Rule 144. Unless the Company is subject to Section 13 or 15(d)
of the Exchange Act, the Company will provide to the holder of United
Registrable Shares and to any prospective purchaser of United Registrable Shares
under Rule 144A of the Commission, the information described in Rule 144A(d)(4)
of the Commission.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell its securities on the basis provided in any
underwriting arrangements approved by such Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; provided, that no holder of United Registrable Shares shall be
required to make any representations or warranties in connection with any
registration other than as to (i) such holder's ownership of his or its United
Registrable Shares to be sold or transferred free and clear of all liens,
claims, and encumbrances, (ii) such holder's power and authority to effect such
transfer, and (iii) such matters pertaining to the compliance with securities
laws as may be reasonably requested; provided, further, that the obligation of
such holder to indemnify pursuant to any such underwriting arrangements shall be
several, not joint and several, among such holders selling United Registrable
Shares, and the liability of each such holder will be in proportion to, and
provided further that such liability will be limited to, the net amount received
by such holder from the sale of his or its United Registrable Shares pursuant to
such registration.
10. MISCELLANEOUS.
10.1 NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of United Registrable Shares in this
Agreement.
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10.2 OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company will not hereafter grant to any Person or Persons any
right to request the Company to register any equity securities of the Company,
or any securities convertible or exchangeable into or exercisable for such
securities, which are senior to or preferential to the registration rights
granted herein, without the prior written consent of the holders of at least a
majority of the United Registrable Shares. In addition, the Company represents
that all consents necessary to enable the Company to enter into this Agreement
have been obtained and the Company has all requisite power and authority to
execute and carry out this Agreement.
10.3 REMEDIES. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law, in equity, or otherwise.
10.4 AMENDMENTS AND WAIVERS. Except as otherwise expressly
provided herein, the provisions of this Agreement may be amended or waived at
any time only by the written agreement of the Company and the holders of at
least a majority of the United Registrable Shares; PROVIDED, HOWEVER, that the
provisions of this Agreement may not be amended or waived without the consent of
the holders of all the United Registrable Shares adversely affected by such
amendment or waiver if such amendment or waiver adversely affects a portion of
the United Registrable Shares but does not so adversely affect all of the United
Registrable Shares. Any waiver, permit, consent or approval of any kind or
character on the part of any such holders of any provision or condition of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in writing. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each holder of United
Registrable Shares and the Company.
10.5 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto, whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of the parties to this
Agreement or holders of United Registrable Shares are also for the benefit of,
and enforceable by, any subsequent holders of such United Registrable Shares.
10.6 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
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10.7 DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and shall not be utilized in interpreting this Agreement.
10.8 NOTICES. Any notices required or permitted to be sent
hereunder shall be delivered personally or mailed, certified mail, return
receipt requested, or delivered by overnight courier service to the following
addresses, or such other address as any Person designates by written notice to
the Company, and shall be deemed to have been given upon delivery, if delivered
personally, three days after mailing, if mailed, or one business day after
delivery to the courier, if delivered by overnight courier service:
If to the Company, to:
Ceres Group, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxx 00000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
0000 X. Xxxxx Xxxxxx, 20th Floor
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
If to United:
c/o Unitrin, Inc.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to holders of the Registrable Shares other United, to the
addresses set forth on the stock record books of the Company.
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10.9 GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement, and the performance of the
obligations imposed by this Agreement, shall be governed by the laws of the
State of Ohio applicable to contracts made and wholly to be performed in that
state.
10.10 FINAL AGREEMENT. This Agreement, together with the
Subscription Agreement and all other agreements entered into by the parties
hereto pursuant to the Subscription Agreement, constitutes the complete and
final agreement of the parties concerning the matters referred to herein, and
supersedes all prior agreements and understandings.
10.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute one
instrument.
10.12 NO STRICT CONSTRUCTION. The language used in this
Agreement will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be used
against any Person.
[Remainder of page intentionally left blank.
Signature pages follow.]
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The parties hereto have executed this Agreement on the date first
above written.
CERES GROUP, INC.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------
By: Xxxxx X. Xxxxxxx
Its: Vice President and Treasurer
UNITED INSURANCE COMPANY OF AMERICA
/s/ Xxxxx Xxxxxxx
-------------------------------------------
By: Xxxxx Xxxxxxx
Its: Vice President and Assistant Secretary
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