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EXHIBIT 4.3
CENTRAL RESERVE LIFE CORPORATION
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement"), dated as of July 1,
1998, is between CENTRAL RESERVE LIFE CORPORATION, an Ohio corporation (the
"Corporation"), and the persons and entities set forth on the signature pages
attached hereto (the "Investors").
R E C I T A L S
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The Investors have agreed to purchase common shares, without par value, of
the Corporation (the "Common Shares") pursuant to that certain Amended and
Restated Stock Purchase Agreement of even date herewith provided that the
parties hereto enter into this Agreement.
The Corporation deems it desirable to enter into this Agreement in order to
induce the Investors to purchase the Common Shares pursuant to the Stock
Purchase 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.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means the Common Shares, without par value, of the
Corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"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.
"Public Offering" means any offering by the Corporation 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.
"Registrable Shares" means at any time (i) any Common Shares then
outstanding which were issued pursuant to the Stock Purchase Agreement; (ii) any
Common Shares then outstanding and held by any Investor (including the Common
Shares issuable upon exercise the Warrants (as defined in the Stock Purchase
Agreement)); (iii) 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) or (ii); and (iv) 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) or (ii);PROVIDED, HOWEVER,
that 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 Registrable Shares whenever
such
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Person has the then-existing right to acquire such Registrable Shares, whether
or not such acquisition actually has been effected.
"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, LLC, Insurance Partners, L.P.
and Insurance Partners Offshore (Bermuda).
2. DEMAND REGISTRATION.
2.1 REQUESTS FOR REGISTRATION. Subject to the terms of this
Agreement, the holders of at least $5,000,000 of the then market value of the
outstanding Registrable Shares may, at any time, request registration under the
Securities Act of all or part of their Registrable 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 Corporation will give written
notice of such request to all other holders of Registrable Shares, subject to
Section 2.4, and will include in such registration all Registrable Shares with
respect to which the Corporation has received written requests for inclusion
within thirty (30) days after delivery of the Corporation'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
Corporation will pay all Registration Expenses (as defined in Section 6 below)
for two Demand Registrations initiated by Insurance Partners, L.P., one Demand
Registration initiated by Turkey Vulture Fund XIII, Ltd. and one Demand
Registration initiated by Strategic Acquisition Partners, LLC (or its principals
or affiliates) (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 Corporation-paid Demand Registrations until it has become effective and
the holders of Registrable Shares are able to register and sell at least 90% of
the Registrable 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 Corporation will pay all Registration
Expenses in connection with any registration initiated as a Demand Registration
even though such registration shall not count as a Corporation-paid Demand
Registration. In a Demand Registration other than the four Demand Registrations
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 Registrable Shares to be registered thereunder pro rata based on the
number of Registrable Shares and other securities requested or permitted to be
included in such registration pursuant to the terms of this Agreement.
2.3 SHORT-FORM REGISTRATIONS. Demand Registrations will be
Short-Form Registrations whenever the Corporation is permitted to use any
applicable short form. The Corporation will use its best efforts to make
Short-Form Registrations available for the sale of 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 Corporation will provide such information as may be
reasonably requested for inclusion by the underwriters in the Short-Form
Registration.
2.4 PRIORITY. If a Demand Registration is an underwritten
public offering and the managing underwriters advise the Corporation in writing
that in their opinion the inclusion of the number of Registrable Shares and
other securities requested to be included (by the Corporation or others) creates
a substantial risk that the price per Common Share will be reduced, the
Corporation will include in such registration, prior to the inclusion of any
securities which are not Registrable Shares, the number of Registrable Shares
requested to be included which in the opinion of such underwriters can be sold
without creating such
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a risk, pro rata among the respective holders of Registrable Shares on the basis
of the number of Registrable Shares owned by such holders, with further
successive pro rata allocations among the holders of Registrable Shares if any
such holder of Registrable Shares has requested the registration of less than
all such Registrable Shares it is entitled to register.
2.5 RESTRICTIONS. The Corporation will not be obligated to
effect any Demand Registration within 180 days after the effective date of a
previous Demand Registration. The Corporation 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 Corporation
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
Corporation or any plan by the Corporation 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 Corporation 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 Registrable Shares, a certificate
signed by an executive officer of the Corporation stating that the Corporation
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 Registrable Shares held who have requested the registration of
all or any part of their respective Registrable Shares and for which
registration was previously requested may withdraw such demand request by giving
written notice to the Corporation; if withdrawn, the demand request shall be
deemed not to have been made for all purposes of this Agreement. The Corporation
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 Registrable Shares included in any Demand Registration shall
have the right to select the investment banker(s) and manager(s) to administer
the offering, subject to the Corporation's approval which will not be
unreasonably withheld or delayed, and any existing contract rights of Advest,
Inc.
3. PIGGYBACK REGISTRATION.
3.1 RIGHT TO PIGGYBACK. Whenever the Corporation 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 Registrable Shares (a "Piggyback Registration"), the
Corporation 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 Registrable Shares of its intention to effect such a
registration and will include in such registration all Registrable Shares (in
accordance with the priorities set forth in Sections 3.2 and 3.3 below) with
respect to which the Corporation has received written requests for inclusion
within fifteen (15) days after the delivery of the Corporation's notice.
3.2 PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Corporation and the managing underwriters advise the Corporation 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 Corporation will include in such registration first, the securities
that the Corporation proposes to sell, second, the Registrable Shares requested
to be included in such registration, pro rata among the holders of such
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 SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Corporation's securities and the managing underwriters advise the
Corporation in writing that in their opinion the number of securities requested
to be included in the
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registration creates a substantial risk that the price per Common Share will be
reduced, the Corporation will include in such registration first, the securities
requested to be included therein by the holders requesting such registration and
the 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 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 Corporation has previously
filed a registration statement with respect to Registrable Shares pursuant to
Section 2 or pursuant to this Section 3, and if such previous registration has
not been withdrawn or abandoned, the Corporation 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.
3.5 SELECTION OF UNDERWRITERS. In connection with any
Piggyback Registration, the holders of at least a majority of the Registrable
Shares requested to be registered shall have the right to select the managing
underwriters (subject to the approval of the Corporation which shall not be
unreasonably withheld or delayed) to administer any offering of the
Corporation's securities in which the Corporation does not participate, and the
Corporation will have such right in any offering in which it participates.
4. HOLDBACK AGREEMENTS.
4.1 HOLDER'S AGREEMENTS. Each holder of Registrable Shares
agrees not to effect any public sale or distribution of equity securities of the
Corporation, 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 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 Registrable Shares that is a partnership from making a
distribution of Registrable Shares to its partners, a holder of Registrable
Shares that is a trust from making a distribution of Registrable Shares to its
beneficiaries or a holder of Registrable Shares that is a corporation from
making a distribution of Registrable Shares to its stockholders, provided that
the transferees of such Registrable Shares agree to be bound by the provisions
of this Agreement to the extent the transferor would be so bound.
4.2 CORPORATION'S AGREEMENTS. The Corporation 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 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
Corporation 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 public offering
otherwise agree, subject to the registration obligations of the Company under
the Common Share Purchase Warrants.
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5. REGISTRATION PROCEDURES. Whenever the holders of Registrable Shares
have requested that any Registrable Shares be registered pursuant to this
Agreement, the Corporation will use its best efforts to effect the registration
and sale of such Registrable Shares in accordance with the intended method of
disposition thereof and, pursuant thereto, the Corporation will as expeditiously
as possible:
prepare and file with the Commission a registration statement with
respect to such 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 Corporation will furnish copies of all such documents proposed to be filed
to the counsel or counsels for the sellers of the Registrable Shares covered by
such registration statement);
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;
furnish to each seller of 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
Registrable Shares;
use its best efforts to register or qualify such 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
Registrable Shares (provided that the Corporation 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);
promptly notify each seller of such 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 Corporation will
prepare a supplement or amendment to such prospectus or registration statement
so that, as thereafter delivered to the purchasers of such 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;
cause all such Registrable Shares to be (i) listed on each securities
exchange on which similar securities issued by the Corporation 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 Registrable
Shares so qualify, or (iii) if no similar securities issued by the Corporation
are then listed on a securities exchange, a securities exchange selected by the
holders of at least a majority of the Registrable Shares included in such
registration;
provide a transfer agent and registrar for all such Registrable Shares
not later than the effective date of such registration statement;
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 Registrable Shares being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Shares (including, but not limited to, effecting a stock split
or a combination of shares).
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make available for inspection by any seller of 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 Corporation, and cause the Corporation'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;
advise each seller of such 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;
at least forty eight (48) hours 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 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 Registrable Shares being registered shall 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 Corporation the filing of such amendment or
supplement is reasonably necessary to protect the Corporation from any
liabilities under any applicable federal or state law and such filing will not
violate applicable laws;
at the request of any seller of such 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 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
Corporation addressed to the underwriters and the sellers of 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 Corporation 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;
make generally available to the Corporation'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 Corporation'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 Corporation 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;
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 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 Registrable Shares to be sold in such offering, and promptly make all
required filings of such prospectus supplement or post-effective amendment;
cooperate with each seller and each underwriter participating in the
disposition of such Registrable Shares and their respective counsel in
connection with any filings required to be made with the NASD;
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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
notify each seller of 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 CORPORATION'S EXPENSES. Except as provided in Section 2.2
hereof, all expenses incident to the Corporation'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 Corporation and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by
the Corporation (all such expenses being herein called "Registration Expenses"),
will be borne by the Corporation. In addition, the Corporation 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 Corporation; 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 Registrable
Shares are included, the Corporation will reimburse the holders of 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 Registrable Shares.
7. INDEMNIFICATION.
7.1 BY THE CORPORATION. The Corporation agrees to indemnify
and reimburse, to the fullest extent permitted by law, each holder of
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 Corporation by 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 Corporation has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Corporation will indemnify such
underwriters, their 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 Registrable Shares is participating, each such
holder will furnish to the Corporation in writing such information as the
Corporation 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 Corporation, its
directors and officers and each Person who controls the Corporation
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(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 Registrable
Shares, and the liability of each such seller of Registrable Shares will be in
proportion to, and provided further that such liability will be limited to, the
net amount received by such seller from the sale of Registrable Shares pursuant
to such registration statement; further provided, however, that such seller of
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
Corporation 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 Corporation
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 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.
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
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amount paid or payable by an indemnified party as a result of the losses,
liabilities, claims, damages, or expenses (or actions in respect thereafter
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 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 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
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 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 Corporation also agrees to make such provisions as are
reasonably requested by any indemnified Person for contribution to such Person
in the event the Corporation's indemnification is unavailable for any reason.
8. COMPLIANCE WITH 144 AND RULE 144A. At the request of any holder
of Registrable Shares who proposes to sell securities in compliance with Rule
144 of the Commission, the Corporation 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 Registrable Shares to make sales pursuant to Rule 144. Unless the
Corporation is subject to Section 13 or 15(d) of the Exchange Act, the
Corporation will provide to the holder of Registrable Shares and to any
prospective purchaser of 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 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 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 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 Registrable Shares pursuant to such registration.
10. MISCELLANEOUS.
10.1 NO INCONSISTENT AGREEMENTS. The Corporation will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of Registrable Shares in
this Agreement.
10
10.2 ADJUSTMENTS AFFECTING REGISTRABLE SHARES.The Corporation
will not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Shares to include such Registrable Shares in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Shares in any such registration, including,
but not limited to, effecting a stock split or combination of shares.
10.3 OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Corporation will not hereafter grant to any Person or Persons the
right to request the Corporation to register any equity securities of the
Corporation, or any securities convertible or exchangeable into or exercisable
for such securities, without the prior written consent of the holders of at
least a majority of the Registrable Shares.
10.4 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.
10.5 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 Corporation and the holders of at
least a majority of the 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 Registrable Shares adversely affected by such amendment
or waiver if such amendment or waiver adversely affects a portion of the
Registrable Shares but does not so adversely affect all of the 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 Registrable Securities and the Corporation.
10.6 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 Investors or
holders of Registrable Shares are also for the benefit of, and enforceable by,
any subsequent holders of such Registrable Shares.
10.7 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.
10.8 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.
10.9 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 Corporation, 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 Corporation, to:
Central Reserve Life Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxx 00000
11
with a copy to:
Xxxxxx & Xxxxxxx
5800 Sears Tower
000 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
Attention: Xxxx X. Xxxxxxxx
If to the Investors, to the addresses set forth on the Signature pages
hereto.
If to holders of the Registrable Shares other than the Investors, to
the addresses set forth on the stock record books of the Corporation.
10.10 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.
10.11 FINAL AGREEMENT. This Agreement, together with the Stock
Purchase Agreement and all other agreements entered into by the parties hereto
pursuant to the Stock Purchase Agreement, constitutes the complete and final
agreement of the parties concerning the matters referred to herein, and
supersedes all prior agreements and understandings.
10.12 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.
10.13 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.]
12
The parties hereto have executed this Agreement on the date first above
written.
THE CORPORATION:
----------------
CENTRAL RESERVE LIFE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO
13
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
INSURANCE PARTNERS, L.P.
By: Insurance GenPar, L.P.,
its General Partner
By: Insurance GenPar MGP, L.P.
its General Partner
By: Insurance GenPar MGP, Inc.,
its General Partner
By: /s/ Xxxxxx Spass
---------------------------
Name: Xxxxxx Spass
---------------------------
Title:
---------------------------
Address:
One Chase Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx & Xxxxxx
Copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
14
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
INSURANCE PARTNERS OFFSHORE (BERMUDA), L.P.
By: Insurance Genpar (Bermuda), L.P.,
its General Partner
By: Insurance GenPar MGP (Bermuda), L.P.,
its General Partner
By: Insurance GenPar MGP (Bermuda), Inc.,
its General Partner
By: /s/ Xxxxxx Spass
-----------------------------
Name: Xxxxxx Spass
-----------------------------
Title:
-----------------------------
Address:
One Chase Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx & Xxxxxx
Copy to:
Weil, Goshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
15
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Copy to:
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
16
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Address:
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
17
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
MERCANTILE BANK OF NORTHERN ILLINOIS,
TRUSTEE OF THE CONSECO STOCK OPTION DIRECTOR
PLAN FBO
XXXXXXX XXXXXXXX #08590033
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------
Title: Trust Officer
-------------------------
Address:
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Copy to:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
18
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
MERCANTILE BANK OF NORTHERN ILLINOIS,
TRUSTEE OF THE CONSECO STOCK OPTION DIRECTOR
PLAN FBO
XXXXXXX XXXXXXXX #08590034
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------
Title: Trust Officer
------------------------------
Address:
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Copy to:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
19
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
/s/ Xxxxx Xxxx
---------------------------------
Xxxxx Xxxx
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
20
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
/s/ Xxx Xxxxx
------------------------------------
Xxx Xxxxx
Address:
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
21
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
TURKEY VULTURE FUND XIII, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------
Title: Manager
------------------------------
Address:
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Copy to:
Xxxxxxx, Xxxxxxx & Xxxxxx P.L.L.
0000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
22
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
/s/ Xxxx X. Xxxxxx
------------------------------------------------
Xxxx X. Xxxxxx
Address:
Xxxxxxx, Xxxxxxx & Xxxxxx P.L.L.
0000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
23
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
KRANTZ FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, its General Partner
Address:
Xxxxxxx, Xxxxxxx & Xxxxxx P.L.L.
0000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
24
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
MEDICAL MUTUAL OF OHIO
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Corporate Secretary
-------------------------------------
Address:
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: General Counsel
25
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
UNITED PAYORS AND UNITED PROVIDERS, INC.
By: /s/ X. X. Xxxxx
--------------------------------------
Name: X. X. Xxxxx
--------------------------------------
Title: V.P. and CFO
--------------------------------------
Address:
0000 Xxxxxxxx Xxxx.
0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxx
26
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
Address:
c/x Xxxx Partners
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
27
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
XXXXXX XXXXXXXX XXX
By: /s/ Xxxxxx Xxxxxxxx XXX
----------------------------------
Name: Xxxxxx Xxxxxxxx XXX
----------------------------------
Title:
----------------------------------
Address:
c/x Xxxx Partners
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
28
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
LEG PARTNERS SBIC, L.P.
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
----------------------------------------
Title: President of Golub GPII Corporation
General Partner
----------------------------------------
Address:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
