EXECUTION COPY
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made as of August 31, 2005,
by and between THE MONROE CLINIC, INC., a Wisconsin corporation ("Seller") and
AMERICAN PHYSICIANS ASSURANCE CORPORATION, a Michigan stock insurance
corporation ("Purchaser").
WHEREAS, Seller is the holder of certain shares (the "Shares") of the
common stock, $250 par value (the "Common Stock"), of Physicians Insurance
Company of Wisconsin, Inc., a Wisconsin stock insurance corporation (the
"Issuer") (whenever the terms "Common Stock" and "Shares" are used herein, such
terms shall be deemed to refer to the Common Stock and Shares, as defined,
together with the common stock purchase rights ("Rights") under the Rights
Agreement, dated as of November 4, 2004, between the Issuer and American Stock
Transfer & Trust Company, as Rights Agent (the "Rights Agreement"), associated
therewith); and
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller One Hundred Nineteen (119) of the Shares (hereinafter, the
"Purchased Shares"); and
WHEREAS, Seller and Purchaser desire to consummate the sale and purchase of
the Purchased Shares on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound hereby, agree as
follows:
ARTICLE 1. PURCHASE, PAYMENT AND DELIVERY OF CERTIFICATES
1.1 Purchase Price. Purchaser hereby agrees to purchase and Seller hereby
agrees to sell the Purchased Shares, free and clear of all liens, pledges and
encumbrances of any kind, at a purchase price of Three Thousand Eight Hundred
and 00/100 Dollars ($3,800.00) per Share (the "Purchase Price").
1.2 Closing. The sale and purchase of the Purchased Shares contemplated by
this Agreement shall take place at a closing (the "Closing") to be held in the
offices of Xxxxx Xxxxxxxxxxx Xxxxx S.C., 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, XX, 00000, or at such other place (including via electronic mail or
facsimile) to which the parties may mutually agree, contemporaneously with the
execution and delivery of this Agreement (the day on which the Closing takes
place being the "Closing Date"). At the Closing, the parties shall make the
deliveries and payment contemplated by Sections 1.3, 1.4 and Article 4.
1.3 Payment. The aggregate Purchase Price for the Purchased Shares shall be
paid at the Closing by wire transfer to the Seller's designated account
according to irrevocable written instructions that Seller shall provide to
Purchaser prior to the Closing.
1.4 Delivery of Stock Certificates. At the Closing, Seller shall deliver to
Purchaser existing certificates (the "Seller Certificates") representing legal
title to and beneficial interest in the Purchased Shares registered in the name
of Seller, together with an appropriate stock power, in proper form for
transfer, assigning to Purchaser the Purchased Shares, it being understood that
the total number of Shares represented by the Seller Certificates may exceed the
number of Purchased Shares. Any applicable
1
transfer taxes shall be paid by Seller.
1.5 Adjustments. (a) In the event the number of issued and outstanding
shares of Common Stock on the Closing Date is not 19,555 due to (i) payment by
Issuer of a dividend to the holders of Common Stock in shares of Common Stock,
(ii) the subdivision by the Issuer of its outstanding shares of Common Stock
into a greater number of shares, or (iii) the combination by Issuer of its
outstanding shares of Common Stock into a smaller number of shares, then the
number of Purchased Shares and Purchase Price shall be adjusted so that (A) the
number of Purchased Shares is equal to the number that an owner of such number
of Shares on the record date for such payment, subdivision or combination would
own immediately after such payment, subdivision or combination and (B) the
Purchase Price shall be adjusted to that price determined by multiplying such
price by a fraction (x) the numerator of which is the total number of
outstanding shares of Common Stock immediately prior to such payment,
subdivision or combination, and (y) the denominator of which shall be the total
number of outstanding shares of Common Stock immediately after such payment,
subdivision or combination. In addition, the Purchase Price shall be reduced,
dollar for dollar, by the amount of any dividends (whether paid or payable in
cash or other property) declared with respect to the Purchased Shares the record
date of which is prior to the Closing Date.
(b) In the event the number of issued and outstanding shares of Common
Stock on the Closing Date is less than 19,555 other than as a result of an event
described in Section 1.5(a), then (i) the number of Purchased Shares shall be
reduced in the same proportion as the number of issued and outstanding shares of
Common Stock on the Closing Date bears to 19,555 (rounded down to the nearest
whole share), and (ii) the purchase and sale pursuant to this Agreement of the
number of shares of Common Stock by which the number of Purchased Shares is
reduced pursuant to clause (i) shall be considered null and void ab initio.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as of the Closing Date
as follows:
2.1 Organization and Power. Seller has full legal power, capacity and
authority to execute this Agreement and consummate the transactions contemplated
hereby. Seller is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite corporate power and authority to own or lease its assets and to carry
on its business as now conducted. This Agreement is binding upon the Seller and
enforceable against the Seller in accordance with its terms.
2.2 No Violations. Neither the execution or delivery of this Agreement by
the Seller, nor the consummation by the Seller of the transactions contemplated
hereby, will (a) violate any provision of the organizational documents of the
Seller or, to Seller's knowledge, of the Issuer (provided, that Seller makes no
representation or warranty with regard to the application or effect of the
Rights Agreement), (b) with notice or lapse of time or both, result in the
creation or imposition of a lien or other encumbrance or third party right on
the Purchased Shares other than in favor of Purchaser, (c) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling or other restriction of any government or government agency applicable to
Seller or the transactions contemplated hereby or, to Seller's knowledge, to the
Issuer, (d) require approval of any government or government agency, or (e)
violate any material contract to which the Seller is a party or by which it is
bound.
2
2.3 Ownership and Title. The Seller owns of record and has good and
marketable title to, the Purchased Shares. The Seller Certificates represent the
number of outstanding Shares of Common Stock purported to be represented
thereon, regardless of any incorrect designations as "Class A Common Stock" or
of incorrect par value thereon, and transfer of the Seller Certificates to
Purchaser as contemplated by this Agreement will convey legal and beneficial
ownership of the Purchased Shares purported to be owned by Seller. Such
Purchased Shares are shares of Common Stock that have been validly issued by the
Issuer, are fully paid and nonassessable (except as provided in 180.0622(2)(b)
of the Wisconsin Statutes) and are free and clear of all options, rights of
other persons, pledges, security interests, liens, encumbrances, voting
restrictions, voting trusts, transfer restrictions and any other adverse claim,
except, in the case of transfer restrictions, (i) as may be imposed by Federal
or state securities laws, (ii) as reflected on the Seller Certificates that
contain a legend to the effect that any resale thereof by the Seller be
registered under applicable securities laws unless the Issuer obtains an opinion
of its counsel that such resale is exempt from applicable registration
requirements (the "Restrictive Legend"), and (iii) the effect, if any, of the
Rights Agreement (including, without limitation, a legend on the Seller
Certificates making reference to the Rights Agreement). Without limiting the
foregoing, Seller confirms that the Seller Certificates contain no legend, other
than the Restrictive Legend, that has any legal effect to restrict the transfer
of the Purchased Shares.
2.4 Broker's Fee. Seller has no liability or obligation to pay any broker's
or finder's fee or commission in connection with the transactions contemplated
by this Agreement for which Purchaser could become liable or obligated. Seller
has an obligation to pay a completion fee to Edelman & Co., Ltd., which
obligation will be paid by Seller.
2.5 No Representation Regarding Issuer. Seller makes no representation
whatsoever as to the Issuer, its business, assets, liabilities, operations,
financial condition or otherwise, including without limitation the accuracy or
completeness of any information contained in publicly-available filings made by
the Issuer.
2.7 No Other Representations Relied Upon. In selling the Purchased Shares,
Seller has relied solely and exclusively upon the representations and warranties
expressly made by Purchaser in this Agreement, and has not relied upon any other
representations, whether written or oral, that may have been made by or on
behalf of Purchaser.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as of the Closing Date as
follows:
3.1 Organization and Power. Purchaser has full corporate power, capacity
and authority to execute this Agreement and consummate the transactions
contemplated hereby. The Purchaser is a stock insurance corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to own or lease its assets and to carry on its business as now
conducted. This Agreement is binding upon the Purchaser and enforceable against
Purchaser in accordance with its terms.
3.2 No Violations. Neither the execution or delivery of this Agreement by
the Purchaser, nor the consummation by Purchaser of the transactions
contemplated hereby, will (i) violate any provision of Purchaser's articles of
incorporation or bylaws, or (ii) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling or other restriction of any
government or government agency applicable to Purchaser or the transactions
contemplated hereby or, to Purchaser's knowledge, to the
3
Issuer, (iii) require approval of any government or government agency, or (iii)
violate any material contract to which the Purchaser is a party or by which it
is bound.
3.3 Broker's Fee. Purchaser has no liability or obligation to pay any
broker's or finder's fee or commission in connection with the transactions
contemplated by this Agreement for which Seller could become liable or
obligated.
3.4 Securities Transfer Matters.
(a) Purchaser is aware that the Seller may rely on the exemption from
the provisions of section 5 of the Securities Act of 1933 (the "Securities Act")
provided by Rule 144A under the Securities Act (the "Rule") and that, as a
consequence, the Purchased Shares may be deemed to be "restricted securities"
within the meaning of Rule 144(a)(3) under the Act and that Purchaser may resell
the Purchased Shares only to the persons and under the circumstances permitted
by applicable securities laws. Purchaser is a "qualified institutional buyer" as
that term is defined in subsection (a)(1)(i)(A) of the Rule.
(b) Purchaser is purchasing the Purchased Shares for its own account
for investment purposes, and not with a view to, or for offer or sale in
connection with, any distribution thereof whether in violation of the Securities
Act or otherwise.
(c) In purchasing the Purchased Shares, Purchaser has relied solely
and exclusively upon its own independent investigation and the representations
and warranties expressly made by Seller in this Agreement, and has conducted
such due diligence concerning the Issuer and its business, affairs, financial
condition and prospects as the Purchaser has deemed necessary or desirable, and,
except for the representations and warranties expressly made by Seller in this
Agreement, the Purchaser has not relied upon any representations, whether
written or oral, made by or on behalf of Seller.
ARTICLE 4. COVENANTS AND AGREEMENTS
4.1 Transfer and Ownership. By this Agreement and the simultaneous exchange
of the Seller Certificates by Seller for payment in full of the Purchase Price
by Purchaser at the Closing, Seller hereby irrevocably grants, bargains, sells
and conveys to Purchaser, and Purchaser accepts, all legal, equitable and
beneficial ownership, and right, title and interest in and to the Purchased
Shares. Seller shall retain all legal, equitable and beneficial ownership, and
right, title and interest in and to all Shares owned by Seller (including the
"Excess Shares," as hereinafter defined, and any other Shares of Common Stock
owned or hereafter acquired by Seller) other than the Purchased Shares.
4.2 Issuance of New Certificates; Further Assurances.
(a) Seller and Purchaser acknowledge that the Seller Certificates may
represent a greater number of Shares than the number of Purchased Shares. The
Shares represented by the Seller Certificates, in the aggregate, in excess of
the number of Purchased Shares, are referred to herein as the "Excess Shares."
Seller and Purchaser also acknowledge that there may be a period of time between
the Closing Date and the date on which the Issuer issues one or more new stock
certificates for the Purchased Shares in the name of the Purchaser ("Purchaser's
Certificates") and/or the date on which the Issuer issues one or more new stock
certificates to the Seller representing the Excess Shares ("Excess
Certificates"), such period being referred to herein as the "Certificate
Reissuance Period." Subject to the following provisions, the risk of
non-issuance or delay in issuance of the Purchaser Certificates is that of the
4
Purchaser and the risk of non-issuance or delay in issuance of the Excess
Certificates is that of the Seller. Notwithstanding any such delay, as between
the Seller and the Purchaser, from and after the Closing Date, the Purchaser
shall be the sole and exclusive owner of all right, title and interest in and to
the Purchased Shares and the Seller shall be the sole and exclusive owner of all
right, title and interest in and to the Excess Shares and, to the extent that
the Seller Certificates evidence Seller's legal and beneficial ownership of the
Excess Shares, Purchaser shall possess and hold the Seller Certificates in trust
for Seller.
(b) Seller and Purchaser agree to cooperate and use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement; provided, that nothing in this Agreement shall require Seller or
Purchaser to bring or prosecute any action, suit or proceeding against Issuer.
Without limiting the generality of the foregoing, during the Certificate
Reissuance Period the Seller and Purchaser will cooperate with each other in any
efforts taken by the other to cause the Issuer to issue the Purchaser
Certificates and the Excess Certificates; provided, that Seller shall have no
obligation to take any actions against the Issuer to compel the issuance of the
Purchaser Certificates and Purchaser shall have no obligation to take any action
against the Issuer to compel the issuance of the Excess Certificates.
(c) If requested by Purchaser after the Closing Date, Seller shall
obtain an opinion of its counsel to the effect that the sale of the Purchased
Shares does not require registration under the Securities Act of 1933, as
amended. The opinion shall be in a form reasonably satisfactory to Purchaser,
shall be rendered by legal counsel reasonably satisfactory to Purchaser (it
being acknowledged that Whyte, Hirschboeck, Xxxxx S.C. is reasonably
satisfactory), and shall specify that Purchaser and its legal counsel may rely
upon it. Such opinion may rely upon representations made by Purchaser in Article
3.
4.3 Property Rights. All property rights in and appurtenant to the
Purchased Shares (including, without limitation, the right to receive any
dividend or distribution (whether in cash, additional shares of Common Stock or
otherwise) or consideration payable in connection with a merger, consolidation
or other sale of the Issuer, paid or payable with respect thereto, and the right
to transfer or dispose, or pledge or hypothecate such Purchased Shares) shall,
from and after the Closing, be the sole and exclusive property of the Purchaser.
All property rights in and appurtenant to all other Shares owned by Seller,
including the Excess Shares and any other Shares of Common Stock owned or
hereafter acquired by Seller (including, without limitation, the right to
receive any dividend or distribution (whether in cash, additional shares of
Common Stock or otherwise), or consideration payable in connection with a
merger, consolidation or other sale of the Issuer, paid or payable with respect
thereto, and the right to transfer or dispose, or pledge or hypothecate such
other Shares) shall be the sole and exclusive property of the Seller. In the
event that either party shall come into possession of any money or property in
respect of the Shares which money or property belongs to the other party as set
forth in the preceding two sentences, the party receiving such money or property
shall hold such money or property in trust for, and promptly remit to the other,
all such money or property without deduction or offset of any kind. For income
tax purposes, the party receiving any such money or property to which the other
party is entitled pursuant hereto shall be deemed to have received such money or
property as nominee for the party entitled thereto.
4.4 Voting and Tender Rights. From and after the Closing, Purchaser shall
have all voting rights attributable to the Purchased Shares and, at the Closing
(and as may be necessary following the Closing), Seller shall grant to Purchaser
a proxy in the form attached hereto granting Purchaser an irrevocable proxy to
vote the Purchased Shares. From and after the Closing, each party who comes into
possession of any proxy or tender offer materials received by them with respect
to the Issuer and all other communications received by them as stockholders of
the Issuer shall promptly forward same or a copy of
5
same so as to permit Purchaser to vote or tender the Purchased Shares and Seller
to vote or tender the Excess Shares, as the case may be, and shall take such
other actions as may be reasonably necessary to permit Purchaser to vote or
tender, or direct the vote or tender of, the Purchased Shares and Seller to vote
or tender, or direct the vote or tender of, the Excess Shares. In the event the
number of Purchased Shares is adjusted pursuant to Section 1.5, the Seller shall
execute and deliver to Purchaser, upon Purchaser's request, a proxy in the form
attached hereto granting Purchaser an irrevocable proxy to vote the adjusted
number of Purchased Shares.
4.5 No Further Right or Obligation. Except as expressly provided in this
Article 4, Section 1.5 and Section 5.3, and except for any liability for its own
breach of any representation or warranty made herein, neither party shall have
any right or obligation hereunder from and after the Closing; in particular,
Seller shall not have any right or obligation to sell to Purchaser, and
Purchaser shall not have any right or obligation to purchase from Seller, to
vote or to receive dividends on any Shares (including the Excess Shares) of
Common Stock owned or hereafter acquired by Seller or any right or interest
therein.
ARTICLE 5. MISCELLANEOUS PROVISIONS
5.1 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin, without regard to its
conflicts of laws provisions.
5.2 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
neither party shall be liable or bound to the other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein. This Agreement may be amended, changed, waived, discharged, or
terminated only by a statement in writing signed by the party against which
enforcement of the amendment, change, waiver, discharge, or termination is
sought.
5.3 Survival. Each of the representations, warranties and covenants of the
parties made herein shall survive the execution and delivery of this Agreement
for so long as any claim made in respect thereof may be made under any
applicable state or federal securities law or statute of limitations.
5.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provisions shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
5.6 Section Headings and Construction. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part, any of the
terms or provisions of this Agreement. References to any "Section" are to a
section of this Agreement. The terms "herein" and "hereby" refer to this
Agreement as a whole and not to any particular section. Any pronouns in this
Agreement that refer to a particular gender mean and refer to the appropriate
gender or neuter when applied to a particular party, person or entity. Seller
and Purchaser have participated jointly in the negotiation and drafting of this
Agreement and consulted with their own legal counsel in connection therewith. In
the event an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties and no
presumption or burden of proof will arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this
6
Agreement. "Agreement" as used herein shall refer to the Agreement as amended
from time to time by the parties.
5.7 Specific Performance. Each party acknowledges and agrees that in the
event of any breach of this Agreement each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties will (a) waive, in any action
for specific performance, the defense of adequacy of a remedy at law and (b) be
entitled, in addition to any other remedy to which they may be entitled at law
or in equity, to compel specific performance of this Agreement in any action
instituted in accordance with the provisions of this Agreement.
5.8 Assignment. Neither this Agreement nor any of the rights, interests, or
obligations hereunder shall be assigned by either party (whether by operation of
law or otherwise) without the prior written consent of the other, which consent
shall not be unreasonably withheld. 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 permitted successors and assigns. No third
party beneficiary rights are contemplated hereby.
5.9 Expenses. Except as otherwise provided herein, all costs and expenses
incurred in connection with the transactions contemplated hereby, including
costs associated with the prosecution or defense of any action, suit or
proceeding, shall be paid by the party incurring such costs and expenses,
whether or not the transactions contemplated hereby are consummated.
5.10 Waivers. Except as otherwise provided in this Agreement, the failure
of either party to comply with any obligation, covenant, agreement or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement, or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
5.11 Notices. Any notices or other communications required or permitted
hereby shall be sufficiently given if sent by United States mail, postage
prepaid; if to Purchaser, at: American Physicians Assurance Corp., 0000 Xxxxx
Xxxxxxxx Xxxx, Xxxx Xxxxxxx, XX 00000, Attn: R. Xxxxx Xxxxxxx, President and
Chief Executive Officer, with a copy to Xxxx XxXxxxxxxx, Xxxxxx Xxxxxxx PLLC,
000 X. Xxxxxxx, Xxxxx 000, Xxxxxxx, XX, 00000; if to Seller, at: The Monroe
Clinic, Inc., 000 00xx Xxx., Xxxxxx, XX 00000 Attention: Xxxx Xxxxxxx with a
copy to Xxxxxx X. Streifender, Hall, Render, Xxxxxxx, Xxxxx & Xxxxx SC, 000 X
Xxxxxxxxx Xxx # 000, Xxxxxxxxx, XX 00000-0000; or otherwise to such other
address as a party may designate to the other in writing.
5.12 Waiver of Trial by Jury. The Purchaser and Seller each waive any right
to a trial by jury in any action or proceeding to enforce or defend any rights
under this Agreement or arising from any relationship existing in connection
with this Agreement, and agrees that any such action or proceeding shall be
tried before a court and not before a jury.
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
SELLER:
THE MONROE CLINIC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name and Title: President & CEO
---------------
PURCHASER:
AMERICAN PHYSICIANS
ASSURANCE CORPORATION
By: /s/ R. Xxxxx Xxxxxxx
--------------------
Name and Title: President & CEO
---------------
8
IRREVOCABLE PROXY
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the undersigned hereby irrevocably constitutes and
appoints, for himself or itself and his or its heirs and assigns, American
Physicians Assurance Corporation ("APA"), with full power of substitution, as
his, her or its proxy and attorney-in-fact to vote One Hundred Nineteen (119)
shares of common stock of Physicians Insurance Company of Wisconsin, Inc.
represented by the stock certificates listed below (the "Purchased Shares") that
the undersigned has sold to APA pursuant to the Stock Purchase Agreement, dated
as of the date hereof, by and among the undersigned and APA (the "Purchase
Agreement"), and that the undersigned is entitled to vote at any meeting of the
holders of the capital stock of Physicians Insurance Company of Wisconsin, Inc.
or upon any proposed matter presented to such holders for action without a
meeting during the term hereof. The irrevocable proxy granted hereby shall
become effective immediately on the date hereof and shall continue in full force
and effect until the issuance by Physicians Insurance Company of Wisconsin, Inc.
of one or more stock certificates evidencing record title to the Purchased
Shares in the name of APA. The undersigned acknowledges that this irrevocable
proxy is coupled with an interest sufficient in law to support an irrevocable
proxy and hereby revokes all prior proxies granted with respect to the Purchased
Shares.
THE MONROE CLINIC, INC.
Dated: August 31, 2005 Signature: /s/ Xxxxxxx X. Xxxxxxx
--------------- -----------------------
Name: Xxxxxxx X. Xxxxxxx
------------------
Title: President & CEO
---------------
Certificate Numbers:
-------------------
Certificate No. 4806 representing Three Hundred Ninety-Two (392) Shares, of
which this Irrevocable Proxy is limited to the grant of the power to vote
only One Hundred Nineteen (119) of such Shares.
9
