EXHIBIT 10.40
AMENDMENT NO. 2 TO
STANDSTILL AGREEMENT
THIS AMENDMENT NO. 2 (this "Amendment"), dated as of September 15, 2004,
to the STANDSTILL AGREEMENT, dated the 20th day of February 2002, as amended by
Amendment No. 1 dated as of October 31, 2002 (the "Agreement"), is made by and
between American Physicians Capital, Inc., a Michigan corporation ("ACAP"), on
the one hand, and Xxxxxxxx Value Partners III, L.P., Xxxxxxxx Value Partners V,
L.P., Xxxxxxxx Associates, L.P., Xxxxxxxx Partners, L.P., Xxxxxxxx Value, LLC,
The Xxxxxxxx de Fleur Foundation, Inc., and Xxxxxx Xxxxxxxx (collectively,
together with Xxxxxxxx Value Partners, II, L.P. and Xxxx Xxxxxxxx, the "Xxxxxxxx
Group"), and Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxx Director") on the other.
WHEREAS, ACAP, the Xxxxxxxx Group and the Xxxxxxxx Director have agreed
that it is in their mutual interests to enter into this Amendment as hereinafter
described.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, and agreements contained herein, and other good and valuable
consideration, the parties hereto mutually agree as follows:
1. Paragraph (e) of Section 4 of the Agreement is hereby amended and
restated in its entirety as follows:
acquire, offer or propose to acquire, or agree to acquire (except,
in any case, by way of stock dividends or other distributions or
offerings made available to holders of ACAP common stock generally),
directly or indirectly, or retain ownership of any ACAP common
stock, if when taken together with the ACAP common stock
beneficially owned by the Xxxxxxxx Group would constitute more than
9.9% of the then outstanding shares of ACAP; provided, however, that
in the event that the Xxxxxxxx Group's beneficial ownership exceeds
such percentage as a result of stock repurchases by ACAP pursuant to
Section 7 of this Agreement, the Xxxxxxxx Group shall, reasonably
promptly after becoming aware of such situation, dispose of a
sufficient number of shares such that the ACAP common stock
beneficially owned by the Xxxxxxxx Group does not constitute more
than such percentage, and provided further, that "beneficial
ownership" shall have the meaning ascribed thereto under Section
13(d) of the Exchange Act,
2. The representations and warranties of the Xxxxxxxx Group and the
Xxxxxxxx Director in Sections 1 and 3 of the Agreement continue to be true and
correct except as modified by the beneficial ownership information disclosed in
the Xxxxxxxx Group's Amendment No. 2 to its Schedule 13D filed with the
Securities and Exchange Commission on August 6, 2004.
3. Xxxx Xxxxxxxx and Xxxxxxxx Value Partners II, L.P. hereby agree to
become parties to the Agreement as members of the Xxxxxxxx Group and shall have
all rights and obligations of
parties to the Agreement, effective as of the date hereof, as if they were
original signatories thereof.
4. Except as specifically set forth above, this Amendment shall not be
deemed to amend the terms and conditions of the Agreement in any respect.
5. Unless otherwise defined to the contrary herein, all capitalized terms
used in this Amendment shall have the meaning set forth in the Agreement.
6. This Amendment may be executed in counterpart in accordance with
Section 17 of the Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
AMERICAN PHYSICIANS CAPITAL, INC. /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
XXXXXXX X. XXXXXXXXX
/s/ R. Xxxxx Xxxxxxx
---------------------------------------
By: R. XXXXX XXXXXXX /s/ Xxxxxx Xxxxxxxx
President and CEO ------------------------------
XXXXXX XXXXXXXX
XXXXXXXX VALUE PARTNERS III, X.X. XXXXXXXX VALUE, LLC
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
--------------------------------------- ------------------------------
By: XXXXXXXX VALUE LLC By: XXXXXX XXXXXXXX
General Partner, by Xxxxxx Xxxxxxxx, Managing and Sole Member
Managing and Sole Member
XXXXXXXX VALUE PARTNERS V, L.P. THE XXXXXXXX DE FLEUR
FOUNDATION, INC.
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
--------------------------------------- ------------------------------
By: XXXXXXXX VALUE LLC By: XXXXXX XXXXXXXX
General Partner, by Xxxxxx Xxxxxxxx, President
Managing and Sole Member
XXXXXXXX ASSOCIATES, X.X. XXXXXXXX VALUE PARTNERS
II, L.P.
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
--------------------------------------- ------------------------------
By: XXXXXXXX VALUE LLC By: XXXXXXXX VALUE LLC
General Partner, by Xxxxxx Xxxxxxxx General Partner, by Xxxxxx Xxxxxxxx
Managing and Sole Member Managing and Sole Member
XXXXXXXX PARTNERS, L.P. /s/ Xxxx Xxxxxxxx
------------------------------
XXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
---------------------------------------
By: XXXXXX XXXXXXXX
General Partner
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