REGISTRATION RIGHTS AGREEMENT
January 26, 1996
To the several persons named
at the foot hereof
Ladies and Gentlemen:
This will confirm that (a) with respect to the several individuals and
entities named as Purchasers in the Securities Purchase and Asset Transfer
Agreement dated as of January 26, 1996 (the "Purchase Agreement") among AMCOMP
INCORPORATED, a Delaware corporation (the "Company"), Welsh, Carson, Xxxxxxxx &
Xxxxx VII, L.P., a Delaware limited partnership ("WCAS VII"), Sprout Growth II,
L.P., a Delaware limited partnership ("Sprout"), and the other several
purchasers named in Annex I thereto (WCAS VII, Sprout and such other several
purchasers are hereinafter referred to collectively as the "Purchasers"), in
consideration of (i) the purchase by the Purchasers pursuant to Sections 1.01
and 1.04 of the Purchase Agreement (A) from the Company of 1,400,000 shares of
Series A Convertible Preferred Stock, par value $1 per share ("Series A
Preferred Stock"), of the Company and (B) from the Founders (as defined herein)
of 1,600,000 shares (the "Common Shares") of the Company's Common Stock, $.01
par value per share, and (ii) the possible future purchases by the Purchasers
from the Company pursuant to Article II of the Purchase Agreement of (X) up to
1,000,000 additional shares of Series A Preferred Stock and (Y) up to 1,000,000
shares of 10% Series B Non-Convertible Cumulative Preferred Stock, $1 par value
per share ("Series B Preferred Stock," and collectively with the Series A
Preferred Stock, the "Preferred Stock"), of the Company, and as an inducement to
the Purchasers to consummate the transactions contemplated by the Purchase
Agreement, and (b) with respect to the several stockholders of the Company
listed in Annex II to the Purchase Agreement (collectively, the "Founders"), in
consideration of the entry by them into the Stockholders Agreement, dated as of
the date hereof, among the stockholders of the Company, and as an inducement to
them to consummate the transactions contemplated by the Stockholders Agreement
and the Purchase Agreement, the Company hereby covenants and agrees with each of
you, and with each subsequent
holder of Restricted Stock (as such term is defined herein), and with each
holder of Founders Stock (as hereinafter defined) as follows:
1. Certain Definitions. As used herein, the following terms shall have
the following respective meanings:
"Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock, $.01 par value per
share, of the Company, as constituted as of the date of this Agreement,
subject to adjustment pursuant to the provisions of Section 10 hereof.
"Conversion Stock" means the shares of Common Stock issuable
upon conversion of any of the Series A Preferred Stock.
"Exchange Act" means the Securities Exchange Act of 1934 or
any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Founders Stock" means the 3,400,000 shares of Common Stock to
be owned by the Founders upon consummation of the transactions
contemplated by Section 1.01 and Section 1.04 of the Purchase
Agreement.
"Registration Expenses" means the expenses so described in
Section 8 hereof.
"Restricted Stock" means the shares of capital stock of the
Company, other than Founders Stock, the certificates for which are
required to bear the legend set forth in Section 2 hereof.
"Securities Act" means the Securities Act of 1933 or any
similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means the expenses so described in Section
8 hereof.
2. Restrictive Legend. Each certificate representing the Common Shares,
each certificate representing the Preferred Stock, each certificate representing
the Founders Stock, each certificate representing the Conversion Stock and each
certificate issued upon exchange, adjustment or transfer thereof, other than in
a public sale or as otherwise permitted by the last
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paragraph of Section 3 hereof, shall be stamped or otherwise imprinted with a
legend substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT
BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY
HAVE BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
Restricted Stock or Founders Stock, as the case may be (other than under the
circumstances described in Sections 4, 5 or 6 hereof), the holder thereof shall
give written notice to the Company of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by the Company, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Company (it being agreed that Reboul, MacMurray,
Xxxxxx, Xxxxxxx & Kristol is and shall be satisfactory) to the effect that the
proposed transfer of the Restricted Stock or Founders Stock, as the case may be,
may be effected without registration under the Securities Act, whereupon the
holder of such Restricted Stock or Founders Stock, as the case may be, shall be
entitled to transfer such Restricted Stock or Founders Stock, as the case may
be, in accordance with the terms of its notice. Each certificate for Restricted
Stock or Founders Stock, as the case may be, transferred as above provided shall
bear the legend set forth in Section 2, unless (i) such transfer is in
accordance with the provisions of Rule 144 (or any other rule permitting public
sale without registration under the Securities Act) or (ii) the opinion of
counsel referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act.
The foregoing restrictions on transferability of Restricted Stock and
Founders Stock shall terminate as to any particular shares of Restricted Stock
or Founders Stock when such shares shall have been effectively registered under
the Securities Act and sold or otherwise disposed of in accordance with the
intended method of disposition by the seller or sellers thereof set forth in the
registration statement concerning such shares. Whenever a holder of Restricted
Stock or Founders Stock is able to demonstrate to the Company (and its counsel)
that the provisions of Rule 144(k) of the Securities Act are available to such
holder without limitation, such holder of Restricted Stock or Founders Stock
shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth in Section 2.
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4. Required Registration.
(a) Subject to the provisions of paragraph (e) below, following the
expiration of thirty (30) months after the Initial Closing Date, or, if earlier,
the date on which the Company completes an Initial Public Offering (as defined
in the Purchase Agreement), at any time the holders of Restricted Stock
constituting at least a majority of the Restricted Stock outstanding at such
time may request the Company to register under the Securities Act all or any
portion of the Restricted Stock held by such requesting holder or holders for
sale in the manner specified in such notice provided, however, that the only
securities which the Company shall be required to register pursuant hereto shall
be shares of Common Stock; provided, further, however, that in any such case the
reasonably anticipated aggregate price to the public of the shares to be so
registered shall not be less than $10,000,000. For the purposes of calculating
the holdings of outstanding Restricted Stock by holders of Preferred Stock for
purposes of this Section 4(a) and Section 13(d), (i) holders of Series A
Preferred Stock shall be treated as the holders of the number of shares of
Conversion Stock then issuable upon conversion of such shares and (ii) Series B
Preferred Stock shall not be counted.
(b) Promptly following receipt of any notice under this Section 4, the
Company shall notify any holders of Restricted Stock from whom notice has not
been received and any holders of Founders Stock, and shall use its best efforts
to register under the Securities Act, for public sale in accordance with the
method of disposition specified in such notice from such requesting holders, the
number of shares of Restricted Stock specified in such notice (and in any
notices received from other such holders of Restricted Stock and holders of
Founders Stock, as the case may be, within 20 days after their receipt of such
notice from the Company); provided, however, that if the proposed method of
disposition specified by the requesting holders shall be an underwritten public
offering, the number of shares of Restricted Stock or Founders Stock or both, as
the case may be, to be included in such an offering may be reduced (first, pro
rata among the requesting holders of Founders Stock based on the number of
shares of Founders Stock so requested to be registered and second, pro rata
among the requesting holders of Restricted Stock based on the number of shares
of Restricted Stock so requested to be registered) if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the Restricted Stock to be sold. If such method of
disposition shall be an underwritten public offering, the Company may designate
the managing underwriter of such offering, subject to the approval of the
selling
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holders of a majority of the Restricted Stock included in the offering, which
approval shall not be unreasonably withheld. Notwithstanding anything to the
contrary contained herein, the obligation of the Company under this Section 4
shall be deemed satisfied only when a registration statement covering all shares
of Restricted Stock specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting holder,
shall have become effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto; provided, however, that if such notice is given and such a
registration statement shall have been filed under the Securities Act and the
registration is thereafter terminated for any reason other than a determination
by the Company not to proceed with the same, then, unless the requesting holders
shall pay all Registration Expenses (as defined herein) in connection therewith,
such attempted registration shall count as a required registration pursuant to
this Section 4 by the holders of Restricted Stock, requesting the same for
purposes of paragraph (e) below, in which event, the Company will permit such
parties an additional registration pursuant to this Section 4, in which all
Registration Expenses (as well as all Selling Expenses) will be paid by the
requesting holders.
(c) In the event that the Board of Directors of the Company determines
in good faith that the filing of a registration statement pursuant hereto would
be detrimental to the Company, the Board of Directors may defer such filing for
a period not to exceed sixty (60) days. The Board of Directors may not effect
more than one such deferral during any twelve month period. The Board of
Directors agrees to promptly notify all holders of Restricted Stock of any such
deferral, and shall provide to such holders a reasonably complete explanation
therefor.
(d) The Company shall be entitled to include in any registration
statement referred to in this Section 4, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except to the extent that, in the
opinion of the managing underwriter (if such method of disposition shall be an
underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock to be sold. Except as provided in this
paragraph (d), the Company will not effect any other registration of its Common
Stock, whether for its own account or that of other holders, from the date of
receipt of a notice from requesting holders pursuant to this Section 4 until the
completion of the period of distribution of the registration contemplated
thereby.
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(e) Notwithstanding anything to the contrary contained herein, the
Company shall be obligated to register Restricted Stock pursuant to this Section
4 on two occasions only.
5. Form S-3 Registration.
(a) If the Company shall receive from any holder or holders of
Restricted Stock or Founders Stock, a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to Restricted Stock or Founders Stock, as the case may
be, owned by such holder or holders, the reasonably anticipated aggregate price
to the public of which would exceed $1,500,000, the Company will:
(i) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other holders of
Restricted Stock and Founders Stock; and
(ii) as soon as is reasonably practicable, use its best
efforts to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations
issued under the Securities Act and any other government requirements
or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
holder's or holders' Restricted Stock or Founders Stock, as the case
may be, as are specified in such request, together with all or such
portion of the Restricted Stock or Founders Stock of any holder or
holders joining in such request as are specified in a written request
given within thirty (30) days after receipt of such written notice from
the Company, provided, however that the Company shall not be obligated
to effect any such registration, qualification or compliance pursuant
to this Section 5(a) (A) more than once in any 180-day period, or (B)
if the Company is not entitled to use Form S-3, and further provided,
however, that the only securities which the Company shall be required
to register pursuant hereto shall be shares of Common Stock. Subject to
the foregoing, the Company shall file a registration statement covering
the Restricted Stock and Founders Stock so requested to be registered
as soon as is reasonably practicable after receipt of the request or
requests of the holders of the Restricted Stock and Founders Stock, as
the case may be.
(b) Registrations effected pursuant to this Section 5 shall not be
counted as requests for registration pursuant to Section 4.
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6. Incidental Registration. If the Company at any time (other than
pursuant to Section 4 or 5 hereof) proposes to register any of its Common Stock
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Form S-4 or S-8 or another form not available for
registering the Restricted Stock for sale to the public), it will give written
notice at such time to all holders of outstanding Restricted Stock and Founders
Stock of its intention to do so. Upon the written request of any such holder,
given within 30 days after receipt of any such notice by the Company, to
register any of its Restricted Stock or Founders Stock or both, as the case may
be, (which request shall state the intended method of disposition thereof), the
Company will use its best efforts to cause the Restricted Stock or Founders
Stock or both, as the case may be, as to which registration shall have been so
requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder (in accordance with its
written request) of such Restricted Stock or Founders Stock, as the case may be,
so registered; provided that nothing herein shall prevent the Company from
abandoning or delaying such registration at any time. In the event that any
registration pursuant to this Section 6 shall be, in whole or in part, an
underwritten public offering of Common Stock, any request by a holder pursuant
to this Section 6 to register Restricted Stock or Founders Stock, as the case
may be, shall specify that either (i) such Restricted Stock or Founders Stock,
as the case may be, is to be included in the underwriting on the same terms and
conditions as the shares of Common Stock otherwise being sold through
underwriters in connection with such registration or (ii) such Restricted Stock
or Founders Stock, as the case may be, is to be sold in the open market without
any underwriting, on terms and conditions comparable to those normally
applicable to offerings of common stock in reasonably similar circumstances. The
number of shares of Restricted Stock or Founders Stock or both, as the case may
be, to be included in an underwriting in accordance with clause (i) above may be
reduced pro rata among the requesting holders of Restricted Stock or Founders
Stock, as applicable, based upon the number of shares of Restricted Stock or
Founders Stock so requested to be registered, if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold by the Company therein;
provided, however, that such number of shares of Restricted Stock or Founders
Stock or both, as the case may be, shall not be reduced if any shares are to be
included in such underwriting for the account of any person other than the
Company.
Notwithstanding anything to the contrary contained in this Section 6,
in the event that there is a firm commitment underwritten public offering of
securities of the Company
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pursuant to a registration covering Restricted Stock or Founders Stock or both,
as the case may be, and a holder of Restricted Stock or Founders Stock, as the
case may be, does not elect to sell his Restricted Stock or Founders Stock, as
the case may be, to the underwriters of the Company's securities in connection
with such offering, such holder shall refrain from selling such Restricted Stock
or Founders Stock, as the case may be, so registered pursuant to this Section 6
during the period of distribution of the Company's securities by such
underwriters and the period in which the underwriting syndicate participates in
the after market; provided, however, that such holder shall, in any event, be
entitled to sell its Restricted Stock or Founders Stock, as the case may be,
commencing on the 90th day after the effective date of such registration
statement or, if later, on such date (but in no event later than the 180th day
after such effective date) as contractual "lock-up" restrictions imposed by the
underwriters shall expire or be released.
7. Registration Procedures. If and whenever the Company is required by
the provisions of Section 4, 5 or 6 hereof to use its best efforts to effect the
registration of any of the Restricted Stock or Founders Stock or both, as the
case may be, under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission a registration statement (which, in the case of an
underwritten public offering pursuant to Section 4 hereof, shall be on
Form S-1 or another form of general applicability satisfactory to the
managing underwriter selected as therein provided) with respect to such
securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for the period
specified in paragraph (a) above and as comply with the provisions of
the Securities Act with respect to the disposition of all Restricted
Stock or Founders Stock or both, as the case may be, covered by such
registration statement in accordance with the sellers' intended method
of disposition set forth in such registration statement for such
period;
(c) furnish to each seller and to each underwriter such number
of copies of the registration statement and the
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prospectus included therein (including each preliminary prospectus) as
such persons may reasonably request in order to facilitate the public
sale or other disposition of the Restricted Stock or Founders Stock or
both, as the case may be, covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock or Founders Stock or both, as the case may be, covered by such
registration statement under the securities or blue sky laws of such
jurisdictions as the sellers of Restricted Stock or Founders Stock or
both, as the case may be, or, in the case of an underwritten public
offering, the managing underwriter, shall reasonably request (provided
that the Company 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 paragraph (d), (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process
in any jurisdiction);
(e) immediately notify each seller under such registration
statement and each underwriter, 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 contained in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing
(following which notification the sellers agree to discontinue sales of
their Restricted Stock or Founders Stock covered by such Registration
Statement until such misstatement or omission shall have been
remedied);
(f) use all reasonable efforts (if the offering is
underwritten) to furnish, at the request of any seller, on the date
that Restricted Stock or Founders Stock or both, as the case may be, is
delivered to the underwriters for sale pursuant to such registration:
(i) an opinion of counsel representing the Company for the purposes of
such registration, addressed to the underwriters and to such seller and
dated such date, stating that such registration statement has become
effective under the Securities Act and that (A) to the best knowledge
of such counsel, no stop order suspending the effectiveness thereof has
been issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus, and each amendment or
supplement thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except that such counsel need
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express no opinion as to financial statements, the notes thereto, and
the financial schedules and other financial and statistical data
contained therein) and (C) to such other effects as may reasonably be
requested by counsel for the underwriters or by such seller or its
counsel and which are customary in underwritings of the type being
undertaken, and (ii) a letter dated such date from the independent
public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in
the registration statement or the prospectus, or any amendment or
supplement thereof, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days
prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as such underwriters or
seller may reasonably request; and
(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement and permit such seller, attorney, accountant or agent to
participate in the preparation of such registration statement.
For purposes of paragraphs (a) and (b) above and of Section 4(c) hereof, the
period of distribution of Restricted Stock or Founders Stock or both, as the
case may be, in a firm commitment underwritten public offering shall be deemed
to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted Stock
or Founders Stock or both, as the case may be, in any other registration shall
be deemed to extend until the earlier of the sale of all Restricted Stock or
Founders Stock or both, as the case may be, covered thereby or six months after
the effective date thereof.
In connection with each registration hereunder, the selling
holders of Restricted Stock and Founders Stock, if applicable, will furnish to
the Company in writing such information with respect to themselves and the
proposed distribution by them as shall be reasonably necessary in order to
assure compliance with federal and applicable state securities laws.
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In connection with each registration pursuant to Sections 4, 5
and 6 hereof covering an underwritten public offering, the Company agrees to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between major
underwriters and companies of the Company's size and investment stature,
provided, however, that such agreement shall not contain any such provision
applicable to the Company which is inconsistent with the provisions hereof and
provided, further, however, that the time and place of the closing under said
agreement shall be as mutually agreed upon among the Company, such managing
underwriter and the selling holders of Restricted Stock and Founders Stock, if
applicable.
8. Expenses. All expenses incurred by the Company in complying with
Sections 4, 5 and 6 hereof, including without limitation all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars and fees and expenses of one counsel for the sellers of Restricted
Stock and the sellers of Founders Stock (or, if there shall be no sellers of
Restricted Stock, one counsel for the sellers of Founders Stock), but excluding
any Selling Expenses, are herein called "Registration Expenses". All
underwriting discounts and selling commissions applicable to the sale of
Restricted Stock or Founders Stock or both, as the case may be, are herein
called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement filed pursuant to Section 4, 5 or 6 hereof. All
Selling Expenses in connection with any registration statement filed pursuant to
Section 4, 5 or 6 hereof shall be borne by the participating sellers in
proportion to the number of shares sold by each, or by such persons other than
the Company (except to the extent the Company shall be a seller) as they may
agree.
9. Indemnification. In the event of a registration of any of the
Restricted Stock or Founders Stock or both, as the case may be, under the
Securities Act pursuant to Section 4, 5 or 6 hereof, the Company will indemnify
and hold harmless each seller of such Restricted Stock or Founders Stock, as the
case may be, thereunder and each underwriter of Restricted Stock or Founders
Stock or both, as the case may be, thereunder and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such seller or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged
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untrue statement of any material fact contained in any registration statement
under which such Restricted Stock or Founders Stock or both, as the case may be,
was registered under the Securities Act pursuant to Section 4, 5 or 6, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
such seller, each such underwriter and each such controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by such
seller, such underwriter or such controlling person in writing specifically for
use in such registration statement or prospectus.
In the event of a registration of any of the Restricted Stock
or Founders Stock or both, as the case may be, under the Securities Act pursuant
to Section 4, 5 or 6 hereof, each seller of such Restricted Stock or Founders
Stock, as the case may be, thereunder, severally and not jointly, will indemnify
and hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer or director or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Restricted Stock or Founders Stock or both, as the case may be, was registered
under the Securities Act pursuant to Section 4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Company and each
such officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission
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or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus;
provided, further, however, that the liability of each seller hereunder shall be
limited to the proceeds (net of underwriting discounts and commissions) received
by such seller from the sale of Restricted Stock or Founders Stock, as the case
may be, covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party other than under this Section 9. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the indemnifying
party shall not be liable to such indemnified party under this Section 9 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall
have the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees
-13-
and disbursements of more than one separate firm qualified in such jurisdiction
to act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two
paragraphs of this Section 9 is unavailable or insufficient to hold harmless an
indemnified party under such paragraphs in respect of any losses, claims,
damages or liabilities or actions in respect thereof referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters and the sellers of such Restricted Stock or Founders Stock, as
the case may be, on the other, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or actions as well
as any other relevant equitable considerations, including the failure to give
any notice under the third paragraph of this Section 9. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by the
Company, on the one hand, or the underwriters and the sellers of such Restricted
Stock or Founders Stock, as the case may be, on the other, and to the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and each of you agree that it
would not be just and equitable if contributions pursuant to this paragraph were
determined by pro rata allocation (even if all of the sellers of such Restricted
Stock or Founders Stock, as the case may be, were treated as one entity for such
purpose) or by any other method of allocation which did not take account of the
equitable considerations referred to above in this paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or action in respect thereof, referred to above in this paragraph,
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this paragraph, the sellers
of such Restricted Stock or Founders Stock, as the case may be, shall not be
required to contribute any amount in excess of the amount, if any, by which the
total price at which the Common Stock sold by each of them was offered to the
public exceeds the amount of any damages which they would have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. No person guilty of fraudulent misrepresentations (within the meaning
of Section 11(f) of the
-14-
Securities Act), shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this
Section 9 shall be on such other terms and conditions as are at the time
customary and reasonably required by such underwriters. In that event the
indemnification of the sellers of Restricted Stock or Founders Stock or both, as
the case may be, in such underwriting shall at the sellers' request be modified
to conform to such terms and conditions.
10. Changes in Common Stock. If, and as often as, there are any changes
in the Common Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed.
11. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any
court or other agency of government, the Certificate of Incorporation
or By-laws of the Company, or any provision of any indenture, agreement
or other instrument to which it or any of its properties or assets is
bound, or conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of
the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to
considerations of public policy in the case of the indemnification
provisions hereof.
12. Rule 144 Reporting. The Company agrees with you as follows:
(a) The Company shall make and keep public information
available, as those terms are understood and defined in Rule 144(c)(1)
or (c)(2), whichever is applicable, under the Securities Act, at all
times from and after the date it is first required to do so.
-15-
(b) The Company shall file with the Commission in a timely
manner all reports and other documents as the Commission may prescribe
under Section 13(a) or 15(d) of the Exchange Act at any time after the
Company has become subject to such reporting requirements of the
Exchange Act.
(c) The Company shall furnish to such holder of Restricted
Stock forthwith upon request (i) a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 (at any
time from and after the date it first becomes subject to such reporting
requirements) and of the Securities Act and the Exchange Act (at any
time from and after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly
report of the Company, and (iii) such other reports and documents so
filed as a holder may reasonably request to avail itself of any rule or
regulation of the Commission allowing a holder of Restricted Stock to
sell any such securities without registration.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. Without limiting the generality of
the foregoing, the registration rights conferred herein on the holders
of Restricted Stock shall inure to the benefit of any and all
subsequent holders from time to time of the Restricted Stock for so
long as the certificates representing the Restricted Stock shall be
required to bear the legend specified in Section 2 hereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class
registered mail, postage prepaid, addressed as follows:
if to the Company, to it at
000 X.X. Xxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
-16-
with a copy to
Olshan, Grundman, Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
if to any holder of Restricted Stock, to such holders at the
address as set forth under such holder's name in Annex I to the
Purchase Agreement;
if to any Founder, to him at his address as set forth in Annex
II to the Purchase Agreement;
if to any subsequent holder of Restricted Stock or Founders
Stock, to such holder at such address as may have been furnished to the
Company in writing by such holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of
Restricted Stock or Founders Stock) or to the holders of Restricted
Stock or Founders Stock (in the case of the Company).
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof. This Agreement may
not be modified or amended except in writing signed by the Company and
the holders of not less than 66-2/3% of each of the Restricted Stock
and Founders Stock then outstanding, provided that no modification or
amendment shall deprive any holder of Restricted Stock or Founders
Stock of any material right under this Agreement without such holder's
consent. The Company will not grant any registration rights to any
other person without the written consent of the holders of 66-2/3% of
the Restricted Stock then outstanding if such rights could reasonably
be expected to conflict with, or be on a parity with, the rights of
holders of Restricted Stock granted under this Agreement. If pursuant
to Section 1.04 of the Purchase Agreement, the Initial Purchasers
instead of the Deferring Purchasers (as such terms are defined in the
Purchase Agreement) purchase the shares of capital stock of the Company
to be purchased on the Deferred Closing Date (as so defined) as
provided therein, then all references to "Purchasers" herein shall be
deemed references to "Initial Purchasers" as so defined.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
-17-
all of which together shall constitute one and the same instrument.
-18-
Please indicate your acceptance of the foregoing by signing
and returning the enclosed counterpart of this letter, whereupon this letter
(herein sometimes called "this Agreement") shall be a binding agreement between
the Company and you.
Very truly yours,
AMCOMP INCORPORATED
By /s/ Xxx X. Xxxxxxxx
------------------------------------
President
AGREED TO AND ACCEPTED
as of the date first
above written.
THE FOUNDERS:
/s/ Xxx X. Xxxxxxxx
----------------------------------
Xxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx
THE PURCHASERS:
XXXXX XXXXXX, XXXXXXXX & XXXXX VII, L.P.
By WCAS VII Partners, L.P., General Partner
By: /s/ Xxxxx XxxXxxxx
------------------------------
WCAS HEALTHCARE PARTNERS, L.P.
By WCAS HP Partners, General Partner
By: /s/ Xxxxx XxxXxxxx
------------------------------
General Partner
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx
Its: Attorney-In-Fact
SPROUT CAPITAL VII, L.P.
By DLJ Capital Corporation
Its: Managing General Partner
By: /s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx
Its: Attorney-In-Fact
DLJ CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxxx
------------------------------
Title: Attorney-In-Fact
/s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxx
----------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. XxXxxxxxx
----------------------------------
Xxxxxx X. XxXxxxxxx
/s/ Xxxxx XxxXxxxx
----------------------------------
Xxxxx XxxXxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. xx Xxxxxx
----------------------------------
Xxxxxxx X. xx Xxxxxx
DLJSC AS CUSTODIAN FOR
XXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Trustee
HORIZON INVESTMENTS ASSOCIATES, I
By: /s/ Illegible
----------------------------------
Managing Partner
SPROUT CEO FUND, L.P.
By
Its: Managing General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------------
Xxxxxxx Xxxxxxx
Its: Attorney-In-Fact
AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
AND REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 dated July 8, 1996 to STOCKHOLDERS AGREEMENT
and REGISTRATION RIGHTS AGREEMENT by and among AmComp Incorporated, a Delaware
corporation (the "Company"), Florida Administrators, Inc., a Florida corporation
("FAI"), and the several parties named on the signature pages hereof under the
heading "Stockholders" (collectively, the "Stockholders").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company, FAI and the Stockholders have entered
into (i) a certain Stockholders Agreement dated as of January 26, 1996 and (ii)
a certain Registration Rights Agreement dated January 26, 1996 (the
"Registration Rights Agreement"); and
WHEREAS, the parties to each of the Stockholders Agreement and
Registration Rights Agreement desire to amend and clarify such Agreements.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements of the parties herein contained, the parties
hereto agree as follows:
Section 1. Capitalized Terms. All capitalized terms used
herein and not defined shall have the meanings accorded them in the Stockholders
Agreement.
Section 2. Transferees of Common Stock. No sale, transfer or
other disposition of shares of Common Stock pursuant to Section 4 of the
Stockholders Agreement shall be valid unless any such transferee thereof is
joined as a party to the Stockholders Agreement and the Registration Rights
Agreement by executing and delivering a Consent and Agreement substantially in
the form of Exhibit A-1 hereto or A-2 hereto, whichever is applicable.
Section 3. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
AMCOMP INCORPORATED
By:/s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
Title: President
FLORIDA ADMINISTRATIONS, INC.
By:/s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
Title:President
THE STOCKHOLDERS
/s/ Xxx X. Xxxxxxxx
-------------------------------------
Xxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
XXXXX XXXXXX, XXXXXXXX & XXXXX
VII, L.P.
By: WCAS VII Partners, L.P.,
General Partner
By: /s/ Xxxxx XxxXxxxx
----------------------------------
Name: Xxxxx XxxXxxxx
Title:
WCAS HEALTHCARE PARTNERS, L.P.
By: WCAS HP Partners,
General Partner
By: /s/ Xxxxx XxxXxxxx
----------------------------------
Name: Xxxxx XxxXxxxx
Title:
-2-
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
SPROUT CAPITAL VII, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
DLJ CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxx X. XxXxxxxxx
-------------------------------------
Xxxxxx X. XxXxxxxxx
-3-
/s/ Xxxxx XxxXxxxx
-------------------------------------
Xxxxx XxxXxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. xx Xxxxxx
-------------------------------------
Xxxxxxx X. xx Xxxxxx
XXXXX X. XXXXXX - TRUSTEE F/B/O XXXXX
X. XXXXXX PROFIT SHARING PLAN, DLJSC
CUSTODIAN
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name:
Title:
HORIZON INVESTMENTS ASSOCIATES, I
By: /s/ illegible
----------------------------------
Name:
Title:
SPROUT CEO FUND, L.P.
By:
Its: Managing General Partner
By: /s/ illegible
----------------------------------
Name:
Title:
-4-
/s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxx, M.D.
-------------------------------------
Xxxxxxx X. Xxxx, M.D.
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxx
-------------------------------------
Xxxx X. Xxxx
-5-
EXHIBIT A-1
CONSENT AND AGREEMENT
(Founder Group)
WHEREAS, AmComp Incorporated, a Delaware corporation (the
"Company"), Florida Administrators, Inc., a Florida corporation ("FAI"), and the
several parties named on the signature pages thereof under the heading
"Purchasers" and the several parties named on the signature pages thereof under
the heading "Founders" are parties to (i) a certain Stockholders Agreement dated
as of January 26, 1996 (the "Stockholders Agreement") and (ii) a certain
Registration Rights Agreement dated January 26, 1996 (the "Registration Rights
Agreement").
WHEREAS, _________________ has agreed to transfer _______
shares of Common Stock, $.01 par value per share, of the Company (the "Shares")
to the undersigned.
NOW, THEREFORE, the undersigned hereby consents and agrees as
follows:
4. The undersigned is joined as a party to the Stockholders
Agreement as a Founder, except that the undersigned shall not be deemed to be a
Founder under the Stockholders Agreement for purposes of (i) consenting to the
designation of the Purchaser Designee pursuant to Section 1(a)(ii)(z) of the
Stockholders Agreement or (ii) designating the Founder Designee pursuant to
Section 1(a)(ii)(B). The undersigned shall not be entitled in its capacity as a
Stockholder to reasonable out-of-pocket expenses incurred by it in attending
meetings as provided in the last sentence of Section 1(a) of the Stockholders
Agreement. The provisions of Section 7(b) of the Stockholders Agreement shall be
inapplicable to the undersigned. All capitalized terms used in this Section 1
and not defined herein shall have the meanings accorded them in the Stockholders
Agreement.
5. The undersigned is joined as a party to the Registration
Rights Agreement as a Founder and the Shares shall be deemed Founders Stock,
except that the undersigned shall not be entitled to request that the Company
effect a registration on Form S- 3 as provided in Section 5 of the Registration
Rights Agreement. Notwithstanding the foregoing, if any other holder of Founders
Stock or any holder of Restricted Stock shall make such a request of the
Company, the undersigned shall be entitled to join in such request as
contemplated by such Section 5. All capitalized terms used in this Section 2 and
not defined herein shall have the meaning accorded them in the Registration
Rights Agreement.
6. The undersigned acknowledges that the certificates for the
Shares shall bear a legend substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A
STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 26, 1996
AMONG AMCOMP INCORPORATED (THE "COMPANY") AND
CERTAIN HOLDERS OF SHARES OF THE OUTSTANDING CAPITAL
STOCK OF THE COMPANY. COPIES OF SUCH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
COMPANY."
7. No sale, disposition or transfer of the Shares shall be
made unless the transferee of such Shares shall agree to join the Stockholder
Agreement and the Registration Rights Agreement by means of a Consent and
Agreement substantially in the form hereof.
IN WITNESS WHEREOF, the undersigned has executed this Consent
and Agreement on ___________________.
---------------------------------
Name:
Address:
---------------------------------
---------------------------------
EXHIBIT A-2
CONSENT AND AGREEMENT
(Purchaser Group)
WHEREAS, AmComp Incorporated, a Delaware corporation (the
"Company"), Florida Administrators, Inc., a Florida corporation ("FAI"), and the
several parties named on the signature pages thereof under the heading
"Purchasers" and the several parties named on the signature pages thereof under
the heading "Founders" are parties to (i) a certain Stockholders Agreement dated
as of January 26, 1996 (the "Stockholders Agreement") and (ii) a certain
Registration Rights Agreement dated January 26, 1996 (the "Registration Rights
Agreement").
WHEREAS, _________________ has agreed to transfer _______
shares of Common Stock, $.01 par value per share, of the Company (the "Shares")
to the undersigned.
NOW, THEREFORE, the undersigned hereby consents and agrees as
follows:
8. The undersigned is joined as a party to the Stockholders
Agreement as a Purchaser, except that the undersigned shall not be deemed to be
a Purchaser under the Stockholders Agreement for purposes of (i) consenting to
the designation of the Founders Designee pursuant to Section 1(a)(i)(B) of the
Stockholders Agreement or (ii) designating the Purchaser Designee pursuant to
Section 1(a)(ii)(z). The undersigned shall not be entitled in its capacity as a
Stockholder to reasonable out-of-pocket expenses incurred by it in attending
meetings as provided in the last sentence of Section 1(a) of the Stockholders
Agreement. The provisions of Section 7(b) of the Stockholders Agreement shall be
inapplicable to the undersigned. All capitalized terms used in this Section 1
and not defined herein shall have the meanings accorded them in the Stockholders
Agreement.
9. The undersigned is joined as a party to the Registration
Rights Agreement as a Purchaser and the Shares shall be deemed Restricted Stock,
except that the undersigned shall not be entitled to request that the Company
effect a registration on Form S- 3 as provided in Section 5 of the Registration
Rights Agreement. Notwithstanding the foregoing, if any other holder of
Restricted Stock or any holder of Founders Stock shall make such a request of
the Company, the undersigned shall be entitled to join in such request as
contemplated by such Section 5. All capitalized terms used in this Section 2 and
not defined herein shall have the meaning accorded them in the Registration
Rights Agreement.
10. The undersigned acknowledges that the certificates for the
Shares shall bear a legend substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A
STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 26, 1996
AMONG AMCOMP INCORPORATED (THE "COMPANY") AND
CERTAIN HOLDERS OF SHARES OF THE OUTSTANDING CAPITAL
STOCK OF THE COMPANY. COPIES OF SUCH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
COMPANY."
11. No sale, disposition or transfer of the Shares shall be
made unless the transferee of such Shares shall agree to join the Stockholder
Agreement and the Registration Rights Agreement by means of a Consent and
Agreement substantially in the form hereof.
IN WITNESS WHEREOF, the undersigned has executed this Consent
and Agreement on ___________________.
---------------------------------
Name:
Address:
---------------------------------
---------------------------------
