EXHIBIT 99.1
AGREEMENT TO FACILITATE MERGER
THIS AGREEMENT TO FACILITATE MERGER (this "Agreement") is made and
entered into as of April 9, 2003 by and among FISERV, INC., a Wisconsin
corporation ("Fiserv"), FISERV SOLUTIONS, INC., a Wisconsin corporation ("Fiserv
Solutions"), FISERV MERGER SUB, INC., a Delaware corporation ("Fiserv Sub") and
a wholly owned subsidiary of Fiserv Solutions, BANKERS INSURANCE GROUP, INC., a
Florida corporation ("BIG"), BANKERS INSURANCE COMPANY, a Florida property and
casualty insurance company ("BIC"), BANKERS SECURITY INSURANCE COMPANY, a
Florida property and casualty insurance company ("BSIC"), and BONDED BUILDERS
SERVICE CORP., a Florida home warranty company ("BBSC," and with BIG, BIC and
BSIC, each a "Shareholder" or, collectively, the "Shareholders").
WHEREAS, as of the date hereof, the Shareholders own beneficially and of
record or have the power to vote, or direct the vote of, an aggregate of
8,354,884 shares of common stock, par value $0.01 per share ("Company Common
Stock"), of Insurance Management Solutions Group, Inc., a Florida corporation
(the "Company"), representing approximately 68% of the outstanding Company
Common Stock as of the date hereof; and
WHEREAS, on the date hereof, Fiserv, Fiserv Solutions, Fiserv Sub and
the Company are entering into that certain Agreement and Plan of Merger, dated
as of even date herewith (as entered into and as the same may be modified or
amended or any of its provisions waived pursuant to the terms thereof, the
"Merger Agreement"; capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to them in the Merger Agreement), which
provides, upon the terms and subject to the conditions thereof, for the merger
of Fiserv Sub with and into the Company (the "Merger"); and
WHEREAS, the Shareholders wish to see the Merger consummated, and have
determined the consummation of the Merger to be in the best interests of the
Shareholders; and
WHEREAS, as a condition to the willingness of Fiserv, Fiserv Solutions
and Fiserv Sub to enter into the Merger Agreement, Fiserv, Fiserv Solutions and
Fiserv Sub have requested that the Shareholders agree, and, in order to induce
Fiserv, Fiserv Solutions and Fiserv Sub to enter into the Merger Agreement, the
Shareholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Vote in Favor of Merger. During the period commencing on the date hereof
and terminating upon the earlier of the Effective Time or the termination
of the Merger Agreement in accordance with its terms, each Shareholder, in
its capacity as a shareholder of the Company and holder of any proxy or
other right to cause or direct the voting of any shares of Company Common
Stock, agrees to (a) vote all shares of Company Common Stock presently
owned by Shareholder or any of its Affiliates or for
which Shareholder has voting power, and all shares of Company Common Stock
with respect to which Shareholder in the future acquires ownership or is
otherwise granted or obtains voting power, at any meeting of the
Shareholders of the Company (or any adjournment thereof), (i) in favor of
the approval and adoption of the Merger Agreement and the transactions
contemplated thereby, including without limitation the Merger; and (ii)
against any action that could reasonably be expected to impede, interfere,
delay, or discourage the Merger, facilitate an acquisition of the Company
or all or substantially all of its assets or business, in any manner, by a
party (other than Fiserv or a subsidiary of Fiserv), or result in any
breach of representation, warranty, covenant or agreement of the Company
under the Merger Agreement, or (b) in the event written consents are sought
from the shareholders of the Company with respect to the actions proposed
in (i) or (ii) above, cause to be executed, with respect to all shares of
Company Common Stock then owned by Shareholder or as to which Shareholder
has the power to vote or to direct the voting of, a written consent or
written consents to such proposed action. To the extent inconsistent with
the foregoing provisions of this Section 1, each Shareholder hereby revokes
any and all previous proxies with respect to any shares of Company Common
Stock that such Shareholder owns or has the right to vote. In addition,
each Shareholder agrees not to dispose of or otherwise sell any shares of
Company Common Stock owned by it, except to other Shareholders subject to
this Agreement.
2. No Solicitation. During the period commencing on the date hereof and
terminating upon the earlier of the Effective Time or the termination of
the Merger Agreement in accordance with its terms, each Shareholder hereby
agrees, and agrees to use commercially reasonable efforts to cause its
Affiliates, officers, directors, employees or consultants or agents, not to
(a) directly or indirectly, solicit, initiate, encourage, accept or
otherwise facilitate the making of an Acquisition Proposal, (b) participate
or engage in or encourage in any way negotiations or discussions
concerning, or provide any non-public information to, any person or entity
relating to an Acquisition Proposal, or which may reasonably be expected to
lead to an Acquisition Proposal or (c) agree to or endorse any Acquisition
Proposal; provided, however, that nothing contained in this Section 2 or in
any other provision of this Agreement will prohibit the Company or any
individual who is a member of the Board of Directors of the Company from
taking and disclosing to the Company's shareholders a position contemplated
by Rule 14e-2 promulgated under the Exchange Act or from making any legally
required disclosure to the Company's shareholders or to the extent
otherwise specifically permitted by the Merger Agreement. For purposes of
this Agreement, "Affiliate" shall mean, with respect to any person or
entity, any person or entity that, directly or indirectly, controls, or any
entity that is controlled by, or is under common control with that Person.
3. Sale of Shares held by the Shareholders and their Affiliates. The
Shareholders agree that, as provided in the Merger Agreement, the Merger
Consideration to be paid pursuant to the Merger Agreement for all of the
shares of Company Common Stock held by the Shareholders and their
Affiliates that are not individuals shall be $3.26 per share, in cash,
without interest.
4. Limited Indemnification and Release. BIG will indemnify the Indemnitees (as
hereinafter defined) in accordance with the terms set forth on Schedule 4
attached hereto.
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Each of the Shareholders grants the release set forth on Schedule 4
attached hereto.
5. Non-Competition. Each Shareholder, on behalf of itself and each of its
current and future subsidiaries or Affiliates, covenants and agrees from
the Effective Time (except with respect to clause (b), as qualified by
clause (ii), from the date hereof) until the third anniversary of the
Effective Time (the "Non-Competition Period") not to, directly or
indirectly, (a) engage or invest in, or have any competitive business
relationship with, either as an owner, partner, agent, consultant, creditor
or otherwise, any business or commercial activity relating to the
processing of flood insurance in the United States or (b) solicit, hire,
cause to be hired, engage the services of or otherwise enable, encourage or
assist, directly or indirectly, any persons which they knew or reasonably
should know are employees of the Company or any persons who are employees
of Fiserv or its subsidiaries with whom they came into contact in
connection with the transactions contemplated hereby to terminate their
employment with the Company or Fiserv or its Affiliate, as the case may be.
Notwithstanding the foregoing, either BIG or any other Shareholder may (i)
own capital stock in a publicly-traded company not to exceed 1% of the
outstanding capital stock of such company and (ii) solicit or hire any such
IT personnel of the Company as are agreed to in writing by the Company and
such Shareholder prior to the Effective Time. Each of Fiserv, Fiserv
Solutions and Fiserv Sub, on behalf of itself and each of its current and
future subsidiaries or Affiliates, covenants and agrees that during the
Non-Competition Period, they shall not solicit, hire, cause to be hired or
otherwise enable, encourage or assist, directly or indirectly, any persons
which they know or reasonably should know are employees of the
Shareholders. Each party agrees that the foregoing limitations are
reasonable in time and scope. Each party's obligations pursuant to this
Section 5 shall arise only if the Merger becomes effective (except with
respect to clause (b), as qualified by clause (ii), which shall be
effective from the date hereof) and then such obligations shall survive for
the Non-Competition Period. If the transactions contemplated by the Merger
Agreement are abandoned in accordance with the Merger Agreement, the
agreement set forth in this Section 5 shall terminate immediately upon such
abandonment.
6. Representations and Warranties of the Shareholders. Each of the
Shareholders represents and warrants to Fiserv, Fiserv Solutions and Fiserv
Sub that: (i) each such Shareholder has the legal capacity to enter into
and perform all of its respective obligations under this Agreement; (ii)
the execution, delivery and performance of this Agreement by each such
Shareholder will not violate any other agreement to which such Shareholder
is a party, including, without limitation, any voting agreement,
shareholders agreement or voting trust; (iii) this Agreement has been duly
executed and delivered by each such Shareholder and constitutes a legal,
valid and binding agreement of each such Shareholder, enforceable against
it in accordance with its terms; (iv) each such Shareholder owns
beneficially, and has full voting power with respect to, the shares of
Company Common Stock that it is making its agreement with respect to under
Section 1 hereof, other than shares beneficially owned by Affiliates over
which such Shareholder does not have voting power, and; (v) no shares of
Company Common Stock held by such Shareholder are subject to any voting
agreement other than this Agreement.
7. Officer and Director Insurance. After the Effective Time, Fiserv shall take
all actions to
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ensure that the Surviving Corporation complies with its obligations set
forth in Section 6.17 of the Merger Agreement. To the extent not paid prior
to the Effective Time, Fiserv shall cause the Surviving Corporation to pay
half the premium for any "tail coverage" policy acquired, and BIG agrees to
pay the other half of the premium for any such "tail coverage" policy
acquired plus any premium payable in respect of naming BIG as an additional
insured under such policy.
8. Successors and Assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that any Shareholder may transfer
shares of Company Common Stock, together with its rights, interests and
obligations hereunder to BIG or any direct or indirect wholly owned
subsidiary of BIG; provided, however, that no such assignment shall relieve
any party of its obligations hereunder; and provided, further, however,
that, at the Effective Time upon consummation of the Merger, by operation
of law, the Surviving Corporation shall succeed to Fiserv Sub's rights
hereunder. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
9. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement is not performed
according to its specific terms and that the parties shall be entitled to
seek specific performance of the terms hereof, in addition to any other
remedy at law or in equity. The parties agree that in the event any or all
of the Shareholders do not perform in full their obligations under Sections
1 and 2 hereof, BIG shall pay Fiserv (the "Vote Fee"), in consideration of
the considerable effort and expense Fiserv has incurred in connection with
the transactions contemplated under this Agreement, $1,200,000 payable upon
the termination of the Merger Agreement; provided, however that (a) the
Vote Fee will not be owed to Fiserv by BIG in the event that (i) the Fee is
payable by the Company pursuant to the terms of the Merger Agreement or
(ii) the approval of shareholders has been obtained in accordance with
Section 7.01(b) of the Merger Agreement, and (b) the Fee under the Merger
Agreement shall not be owed by the Company at any time after the Vote Fee
has been paid by BIG.
10. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together
shall constitute one and the same document.
11. Further Assurances. Each of the Shareholders shall execute and deliver such
additional documents and take such further action as may be necessary or
desirable to consummate the transactions contemplated by this Agreement.
12. Third-Party Beneficiaries. Nothing in this Agreement, expressed or implied,
shall be construed to give any person other than the parties hereto any
legal or equitable right, remedy, or claim under or by reason of this
Agreement or any provision contained herein.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida applicable to contracts
made and to be performed therein.
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14. Jurisdiction and Venue. The parties agree that any proceeding relating to
this Agreement shall be brought in a court of Florida. Each of the parties
consents to personal jurisdiction in any such action brought in any such
Florida court, consents to service of process by registered mail made upon
such party and such party's agent, and waives any objection to venue in any
such Florida court or to any claim that any such Florida court is an
inconvenient forum. The prevailing party in any suit or action brought
against any other party to enforce the terms of this Agreement or any
rights or obligations hereunder shall be entitled to receive reimbursement
of its costs, expenses and attorneys' fees (internal and external) and
disbursements, including the costs and expenses of experts and internal
resources expended, actually incurred in connection with such suit or
action.
15. No Amendment of Merger Agreement. Fiserv, Fiserv Solutions and Fiserv Sub
shall not amend the Merger Agreement without the prior written consent of
BIG, which consent shall not be unreasonably withheld.
16. Payment for Shares. At the Effective Time, (a) each of the Shareholders and
their Affiliates shall surrender their Company Certificates representing
all shares of Company Common Stock held by the Shareholders or their
Affiliates and (b) Fiserv shall pay to each Shareholder or their
Affiliates, as the case may be, by wire transfer cash in the amount of
$3.26 per share of Company Common Stock represented by each Shareholder's
Company Certificates to such accounts as are designated by such
Shareholders or their Affiliates.
17. Termination. This Agreement shall terminate upon the earlier of the
Effective Time or termination of the Merger Agreement in accordance with
its terms; provided, however, that the provisions of Section 4, Section 5,
Section 6, Section 7, Section 8, Section 9, Section 10, Section 11, Section
12, Section 13, Section 14 and this Section 17 shall continue in effect
following the Effective Time in accordance with the respective provisions
thereof, and the provisions of Section 9 and Section 14 shall continue in
effect following the termination of the Merger Agreement.
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IN WITNESS WHEREOF, each of Fiserv, Fiserv Solutions and Fiserv Sub, on the
one hand, and the Shareholders, on the other hand, has caused this Agreement to
Facilitate Merger to be executed by its duly authorized officer, as of the date
and year first above written.
FISERV, INC. BANKERS INSURANCE GROUP, INC.
By /s/ Xxxxxx X. Xxxx By /s/ Xxxxxx X. Xxxxx
--------------------------------- -------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxxx
Title: President and Chief Title: President
Executive Officer
FISERV SOLUTIONS, INC. BANKERS INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxx By /s/ Xxxxx X. Xxxxxx
--------------------------------- -------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: President Title: President
FISERV MERGER SUB, INC. BANKERS SECURITY INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxx By /s/ Xxxxx X. Xxxxxx
--------------------------------- -------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: President Title: President
BONDED BUILDERS SERVICE CORP.
By /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
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