Exhibit 10(eee)
CAPITAL SECURITIES SUBSCRIPTION AGREEMENT
May 13, 2003
THIS CAPITAL SECURITIES SUBSCRIPTION AGREEMENT (this "Subscription
Agreement") is made among FPIC Capital Trust I, a statutory trust created under
the laws of the State of Delaware (the "Trust"), FPIC Insurance Group, Inc. (the
"Company" and, collectively with the Trust, the "Offerors") and InCapS Funding
I, Ltd., a newly formed exempted company with limited liability established
under the laws of the Cayman Islands (the "Purchaser").
RECITALS:
A. The Trust desires to issue $5,000,000 liquidation amount of its
InCapS(SM) (the "Capital Securities"), with a liquidation amount of $1,000 per
Capital Security, representing undivided beneficial interests in the assets of
the Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Declaration of Trust (the "Declaration"), by the Company, as Sponsor, Wilmington
Trust Company, as Institutional Trustee and Wilmington Trust Company, as
Delaware Trustee, the Administrators named therein, and the holders, from time
to time, of the Capital Securities, which Capital Securities are to be
guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise to the extent provided in and pursuant to
the terms of a Guarantee Agreement (the "Guarantee") between the Company and
Wilmington Trust Company, as Guarantee Trustee; and
B. The proceeds from the sale of the Capital Securities will be combined
with the proceeds from the sale of the Common Securities by the Trust to the
Company and will be used by the Trust to purchase an equivalent aggregate
principal amount of Floating Rate Junior Subordinated Debentures due 2033 of the
Company (the "Debentures"), to be issued by the Company pursuant to an Indenture
(the "Indenture") to be executed by the Company, as Issuer, and Wilmington Trust
Company, as Debenture Trustee; and
C. The Purchaser intends to complete an offering of its securities (the
"CBO Offering") on or about May 22, 2003 or such other business day as may be
agreed upon by the Offerors and the placement agent ("Placement Agent")
identified in the Placement Agreement (the "Closing Date") and to use the
proceeds of the CBO Offering to, among other things, acquire the Capital
Securities from the Trust and other capital securities, senior notes and surplus
notes in a quantity and with other particular characteristics, in the aggregate,
sufficient to permit the successful completion of the CBO Offering; and
D. In consideration of the premises and the mutual representations and
covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Subscription Agreement, subject to the
conditions precedent set forth in Section 1.5, the Purchaser hereby agrees to
purchase from the Trust 5,000 Capital Securities at a price equal to $1,000 per
Capital Security (the "Purchase Price") and the Trust agrees to sell 5,000 of
Capital Securities with a liquidation amount of $1,000 per Capital Security to
the Purchaser for the Purchase Price. The rights and preferences of the Capital
Securities will be set forth in the Declaration in form and substance reasonably
acceptable to the Purchaser. The Purchase Price is payable by the Purchaser on
the Closing Date in immediately available funds to the account designated by
Wilmington Trust Company against delivery of the aforementioned Capital
Securities.
1.2. The certificate for the Capital Securities shall be authenticated by
the Institutional Trustee and delivered in definitive form by the Trust on the
Closing Date to the Purchaser or its designee, shall be registered in the name
of the Purchaser and shall represent the aggregate liquidation amount of the
Capital Securities being purchased by the Purchaser.
1.3. Each of the provisions of the Placement Agreement, dated May 13, 2003
(the "Placement Agreement"), including the definitions therein, are hereby
incorporated by reference into this Subscription Agreement. In addition, to the
extent provided for in the Placement Agreement, the Purchaser shall be entitled
to the benefits of the Placement Agreement and shall be entitled to enforce such
obligations of the Offerors under the Placement Agreement as fully as if the
Purchaser were a party to such Placement Agreement, it being agreed between the
parties that any and all representations, covenants and other agreements made by
the Offerors to the Placement Agent in the Placement Agreement shall be deemed
to have also been made to the Purchaser.
1.4. If any condition specified herein or in the Placement Agreement shall
not have been fulfilled when and as required to be fulfilled by, on behalf of or
in respect of the Offerors or the Capital Securities or the Subordinated Debt
Securities, this Subscription Agreement may be terminated by the Purchaser by
notice to the Offerors at any time at or prior to the Closing Date, and such
termination shall be without liability of any party to any other party except as
provided in Section 5(i) of the Placement Agreement and except that Sections 1,
7, and 8 of the Placement Agreement shall survive any such termination and
remain in full force and effect.
1.5. If the CBO Offering is not successfully completed for any reason,
including, without limitation, as a result of the inability of the Purchaser to
acquire sufficient capital securities, senior notes and surplus notes from the
Trust and other issuers and sellers in a quantity and with other particular
characteristics, in the aggregate, sufficient to satisfy rating agency criteria
with respect to expected ratings on the securities to be issued by the Purchaser
and other criteria deemed necessary or advisable by the Purchaser, all
obligations of the Purchaser hereunder and any claims against the Purchaser
hereunder shall automatically terminate and be extinguished and shall not
thereafter revive.
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1.6. Notwithstanding any other provision of this Subscription Agreement,
the obligations of the Purchaser hereunder are limited recourse obligations of
the Purchaser, payable solely from the proceeds of the CBO Offering, and if the
CBO Offering is not completed or the proceeds of the CBO Offering are
insufficient to satisfy the obligations of the Purchaser, all obligations of the
Purchaser hereunder and any claims against the Purchaser hereunder shall be
extinguished and shall not thereafter revive. No recourse shall be had to any
subscriber, officer, director, employee, administrator, shareholder,
incorporator or agent of the Purchaser or their respective successors or assigns
for any obligations hereunder. The Trust, Wilmington Trust Company (on behalf of
the Trust) and the Company further agree (i) not to take any action in respect
of any claims hereunder against any subscriber, officer, director, employee,
administrator, shareholder, incorporator or agent of the Purchaser and (ii) not
to institute against the Purchaser any insolvency, bankruptcy, reorganization,
liquidation or similar proceedings in any jurisdiction until one year and one
day or, if longer, the applicable preference period then in effect, as the case
may be, shall have elapsed since the final payments to the holders of the
securities issued by the Purchaser in connection with the CBO Offering.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that (i) none of the
Capital Securities, the Subordinated Debt Securities or the Guarantee (the
"Offeror Securities") have been or will be registered under the Securities Act
of 1933, as amended (the "Securities Act"), or any other applicable securities
laws, (ii) the Offeror Securities are being offered for sale by the Offerors in
transactions not requiring registration under the Securities Act, and (iii) the
Offeror Securities may not be offered, sold, pledged or otherwise transferred by
the Purchaser except in compliance with the registration requirements of the
Securities Act, or any other applicable securities laws, pursuant to an
exemption therefrom or in a transaction not subject thereto.
2.2. The Purchaser represents and warrants that (i) it is not a "U.S.
person" (as such term is defined in Rule 902 under the Securities Act), (ii) it
is not acquiring the Capital Securities for the account or benefit of any U.S.
person, and (iii) the offer and sale of Capital Securities to the Purchaser
constitutes an "offshore transaction" under Regulation S under the Securities
Act.
2.3. The Purchaser represents and warrants that it is purchasing the
Capital Securities for its own account, for investment and not with a view to,
or for offer or sale in connection with, any distribution thereof in violation
of the Securities Act or other applicable securities laws, subject to any
requirement of law that the disposition of its property be at all times within
its control and subject to its ability to resell such Capital Securities
pursuant to an effective registration statement under the Securities Act or
pursuant to an exemption therefrom or in a transaction not subject thereto, and
the Purchaser agrees to the legends and transfer restrictions applicable to the
Capital Securities contained in the Declaration.
2.4. The Purchaser, a Cayman Islands company whose business includes the
issuance of certain notes and acquiring the Capital Securities and other similar
securities, has had the opportunity to ask questions of, and receive answers and
request additional information from, the
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Offerors and is aware that it may be required to bear the economic risk of an
investment in the Capital Securities.
2.5. The Purchaser is an exempted company with limited liability duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction where it is organized, with full power and authority to execute,
deliver and perform this Subscription Agreement, to make the representations and
warranties specified herein, and to consummate the transactions contemplated
herein and it has full right and power to subscribe for the Capital Securities.
2.6. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any governmental body, agency or court
having jurisdiction over the Purchaser, other than those that have been made or
obtained, is necessary or required for the performance by the Purchaser of its
obligations under this Subscription Agreement or to consummate the transactions
contemplated herein.
2.7. This Subscription Agreement has been duly authorized, executed and
delivered by the Purchaser.
2.8. The Purchaser is not in violation of or default under any term of its
Memorandum of Association or Articles of Association, of any provision of any
mortgage, indenture, contract, agreement, instrument or contract to which it is
a party or by which it is bound or of any judgment, decree, order, writ or, to
its knowledge, any statute, rule or regulation applicable to the Purchaser which
would prevent the Purchaser from performing any material obligation set forth in
this Subscription Agreement. The execution, delivery and performance of and
compliance with this Subscription Agreement, and the consummation of the
transactions contemplated herein, will not, with or without the passage of time
or giving of notice, result in any such violation or default or the suspension,
revocation, impairment, forfeiture or non-renewal of any permit, license,
authorization or approval applicable to the Purchaser, its business or
operations or any of its assets or properties which would prevent the Purchaser
from performing any material obligations set forth in this Subscription
Agreement.
2.9. The Purchaser understands and acknowledges that the Offerors will
rely upon the truth and accuracy of the foregoing acknowledgments,
representations, warranties and agreements and agrees that if any of the
foregoing acknowledgments, representations, warranties or agreements cease to be
accurate, it shall promptly notify the Offerors.
2.10. The Purchaser understands that no public market exists for any of
the Capital Securities, and that it is unlikely that a public market will ever
exist for the Capital Securities.
ARTICLE III
MISCELLANEOUS
3.1. Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier, or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed
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by telephone, to the following addresses, or such other address as may be
furnished to the other parties as herein provided:
To the Offerors: FPIC Insurance Group, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxx
Telephone: 000 000-0000
Fax: 000 000-0000
To the Purchaser: InCapS Funding I, Ltd.
x/x Xxxxxx Xxxxxxx Xxxxxxx
X.X. Xxx 0000 XX
Xxxxxxxxxx House
South Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands
Attention: Directors
Telephone: 000-000-0000
Fax: 000-000-0000
To the Purchaser
for service of
all process: CT Corporation
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
Unless otherwise expressly provided herein, notices shall be deemed to
have been given when received.
3.2. This Subscription Agreement shall not be changed, modified or amended
except by a writing signed by the parties hereto.
3.3. Upon the execution and delivery of this Subscription Agreement by the
parties hereto, this Subscription Agreement shall become a binding obligation of
each such party with respect to the matters covered herein, including those
incorporated by reference from the Placement Agreement.
3.4. THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW. EACH OF THE TRUST, THE PURCHASER AND THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES (INCLUDING, WITHOUT LIMITATION, THE
TRUST), HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL
AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN
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CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY
OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. EACH
OF THE TRUST, THE PURCHASER AND THE COMPANY, ON BEHALF OF ITSELF AND ITS
SUBSIDIARIES (INCLUDING, WITHOUT LIMITATION, THE TRUST), IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
3.5. The parties hereto agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
3.6. This Subscription Agreement may be executed in one or more
counterparts each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
Signatures appear on the following page
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IN WITNESS WHEREOF, this Subscription Agreement is agreed to and accepted
as of the day and year first written above.
FPIC INSURANCE GROUP, INC.
By:/s/ Xxxx X. Xxxxx
---------------------------------------
Xxxx X. Xxxxx
President and Chief Executive Officer
FPIC CAPITAL TRUST I
By:/s/ Xxx X. Xxxxxx
---------------------------------------
Xxx X. Xxxxxx
Administrator
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IN WITNESS WHEREOF, I have set my hand the day and year first written
above.
INCAPS FUNDING I, LTD.
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: Director
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