EXHIBIT 10.19
SECURITIES PURCHASE AGREEMENT
BY AND AMONG
ASSOCIATED BUSINESS & COMMERCE HOLDINGS, INC.,
XXXXX XXXXX, XXXXXXXX X. XXXXXXXXXX, XXXXXXXXX X. XXXXX,
XXXXXX X. XXXXXX AND XXXXX X. XXXXXX
AND
TIG REINSURANCE COMPANY
DATED AS OF DECEMBER 4, 1996
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience only.
ARTICLE I
AUTHORIZATION;
PURCHASE AND SALE; CLOSING Page
No.
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1.01 Authorization.......................................... 1
1.02 Purchase and Sale...................................... 2
1.03 First Closing.......................................... 2
1.04 Second Closing......................................... 2
1.05 Optional Repurchase.................................... 4
1.06 Further Assurances..................................... 4
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE FOUNDERS
2.01 Corporate Organization and Qualification; Charter
Documents...................................... 5
2.02 Capital Stock; Series I Preferred Shares............... 5
2.03 Authority.............................................. 7
2.04 Non-Contravention; Approvals and Consents.............. 8
2.05 Offering of Purchased Shares........................... 9
2.06 Brokers ............................................... 9
2.07 Other Representations and Warranties................... 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TIG
3.01 Organization........................................... 10
3.02 Corporate Authority.................................... 10
3.03 Non-Contravention; Approvals and Consents.............. 10
3.04 Nature of Purchase..................................... 11
3.05 Brokers ............................................... 11
ARTICLE IV
AGREEMENTS OF THE PARTIES
4.01 Restrictions on Certain Transfers; Rights of
First Refusal; Participation Rights............ 11
4.02 Preemptive Rights...................................... 15
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Page
No.
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4.03 Designee Director...................................... 15
4.04 Indemnification and Expenses........................... 16
4.05 Access ............................................... 17
4.06 Lost Securities........................................ 17
4.07 Issuance of Capital Stock.............................. 17
4.08 Public Offering........................................ 18
4.09 Use of Proceeds........................................ 18
4.10 Charter and By-Law Amendments.......................... 18
4.11 Legend on Certificates................................. 18
4.12 URC Options............................................ 19
ARTICLE V
ADDITIONAL COVENANTS OF THE COMPANY
5.01 Affirmative Covenants.................................. 19
5.02 Negative Covenants..................................... 19
5.03 Financial Covenants.................................... 20
ARTICLE VI
GENERAL PROVISIONS
6.01 Survival of Representations, Warranties,
Covenants and Agreements....................... 20
6.02 Amendment and Waiver................................... 20
6.03 Notices................................................ 20
6.04 Entire Agreement....................................... 21
6.05 Public Announcements................................... 22
6.06 No Third Party Beneficiary............................. 22
6.07 No Assignment; Binding Effect.......................... 22
6.08 Headings............................................... 22
6.09 Invalid Provisions..................................... 22
6.10 Governing Law.......................................... 23
6.11 Consent to Jurisdiction and Service of Process......... 23
6.12 Counterparts........................................... 23
EXHIBITS
EXHIBIT A Secretary's Certificate
EXHIBIT B Opinion of Counsel to the Company
EXHIBIT C Amendment to Articles of Incorporation
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SECURITIES PURCHASE AGREEMENT
Securities Purchase Agreement (this "AGREEMENT")made and entered into
this 4th day of December, 1996, by and among ASSOCIATED BUSINESS & COMMERCE
HOLDINGS, INC., a Florida corporation (the "COMPANY"), XXXXX XXXXX, XXXXXXXX X.
XXXXXXXXXX, XXXXXXXXX X. XXXXX, XXXXXX X. XXXXXX and XXXXX X. XXXXXX (such
individuals being referred to herein individually as a "FOUNDER" and
collectively as the "FOUNDERS") and TIG REINSURANCE COMPANY, a Connecticut
corporation ("TIG").
RECITALS
WHEREAS, the Company desires to sell, and TIG desires to purchase,
shares of Class B Common Stock, par value $.01 per share, of the Company (the
"CLASS B COMMON STOCK") and shares of Cumulative Convertible Preferred Stock,
Series I, par value $.01 per share, of the Company (the "SERIES I PREFERRED
STOCK"), all on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Company and TIG are entering into (i) a Registration Rights
Agreement (the "REGISTRATION RIGHTS AGREEMENT") providing for the registration
for sale by the Company under certain circumstances of TIG's shares of common
stock, par value $.01 per share, of the Company (the "COMMON STOCK"), (ii) a
Term Loan Agreement pursuant to which TIG is lending $3,912,908 to the Company,
upon the terms and conditions described therein (the "TERM LOAN AGREEMENT"), and
(iii) an Agreement as to Reinsurance pursuant to which the Company will reinsure
with TIG certain insurance policies issued by the Company, upon the terms and
conditions described therein (the "REINSURANCE AGREEMENT");
NOW, THEREFORE, for and in consideration of the mutual representations,
warranties, covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
AUTHORIZATION;
PURCHASE AND SALE; CLOSING
1.01 AUTHORIZATION. The Company has duly authorized in accordance with
the applicable provisions of the Florida Business Corporation Act (the "FBCA")
and the Articles of Incorporation of the Company (the "ARTICLES OF
INCORPORATION") the issuance and sale to TIG of 87,092 shares of Class B Common
Stock and 2,912,908 shares of Series I Preferred Stock pursuant to this
Agreement. The Series I Preferred Stock has the rights,
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restrictions, privileges and preferences set forth in the articles of amendment
to the Articles of Incorporation relating to the Series I Preferred Stock (the
"ARTICLES OF AMENDMENT"). The Company has adopted and filed the Articles of
Amendment with the Secretary of State of the State of Florida in accordance with
the applicable provisions of the FBCA.
1.02 PURCHASE AND SALE. On the basis of the representations,
warranties, covenants and agreements contained in this Agreement, simultaneously
with the execution and delivery of this Agreement the Company is issuing and
selling to TIG, and TIG is purchasing from the Company, 87,092 shares of Class B
Common Stock (the "CLASS B SHARES") at a purchase price of $1.00 per share.
1.03 FIRST CLOSING. At the closing of the purchase and sale of the
Class B Shares under this Agreement (the "FIRST CLOSING"), the Company is
delivering to TIG a certificate or certificates representing the Class B Shares
registered in the name of TIG, against payment to the Company of an aggregate
purchase price for the Class B Shares of $87,092 by wire transfer in immediately
available United States funds to an account designated by the Company. In
addition, at the First Closing, the Company is (a) causing to be delivered to
TIG (i) a certificate, dated the date of this Agreement and executed by the
Secretary of the Company, substantially in the form and to the effect of EXHIBIT
A hereto and (ii) an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the
Company, dated the date of this Agreement, substantially in the form and to the
effect of EXHIBIT B hereto, and (b) causing a nominee of TIG to be elected as a
director of the Company, in the manner contemplated by SECTION 4.03(A). The date
of the First Closing is referred to herein as the "FIRST CLOSING DATE."
1.04 SECOND CLOSING. (a) Subject to the satisfaction of each of the
conditions set forth in PARAGRAPH (C) below, on a date and at a place mutually
acceptable to the Company and TIG but in no event more than three (3) business
days following satisfaction of the condition set forth in clause (i) of
PARAGRAPH (C) below, the Company will issue and sell to TIG, and TIG will
purchase from the Company, 2,912,908 shares of Series I Preferred Stock (the
"SERIES I PREFERRED SHARES" and, together with the Class B Shares, the
"PURCHASED SHARES"), at a purchase price of $1.00 per share. At the closing of
the purchase and sale of the Series I Preferred Shares under this Section (the
"SECOND CLOSING"), the Company shall deliver to TIG a certificate or
certificates representing the Series I Preferred Shares registered in the name
of TIG, and TIG shall pay the aggregate purchase for the Series A Preferred
Shares by (i) paying to the Company $2,000,000 by wire transfer in immediately
available United States funds to an account designated by the Company and (ii)
delivering to the Company for cancellation the B Note (as defined in the Term
Loan Agreement). The Company shall
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cancel the B Note upon receipt thereof and the B Note shall be deemed discharged
in full. In addition, at the Second Closing, the Company shall exchange, on a
share for share basis, all of the Class B Shares held by TIG for shares of
Common Stock (the "EXCHANGE"). TIG shall deliver to the Company the certificate
or certificates representing the Class B Shares and the Company shall deliver to
TIG a certificate or certificates representing the shares of Common Stock issued
in exchange therefore.
(b) Following the First Closing, TIG and the Company shall cooperate
with each other in seeking to obtain all approvals from the Florida Department
of Insurance (the "FDOI") necessary or required in order to consummate the sale
of the Series I Preferred Shares and to effect the Exchange, and each of TIG and
the Company shall agree to any reasonable conditions imposed on it by the FDOI
in order to obtain such approvals.
(c) The obligation of TIG to consummate the purchase and sale of the
Series I Preferred Shares shall be subject to the satisfaction of each of the
following conditions: (i) TIG shall have determined, in its sole discretion,
that all regulatory approvals necessary or required in order to consummate the
purchase and sale of the Series I Preferred Shares and to effect the Exchange
(including all necessary approvals of the FDOI) have been obtained; (ii) no
court of competent jurisdiction or other competent Governmental or Regulatory
Authority (as defined in SECTION 2.04(A)) shall have enacted, issued,
promulgated, enforced or entered any Law or Order which has the effect of making
illegal or otherwise restricting, preventing or prohibiting consummation of the
purchase and sale of the Series I Preferred Shares or the Exchange; (iii) the
representations and warranties made by the Company in this Agreement shall be
true and correct in all material respects as of the date of the Second Closing
or, in the case of representations and warranties made as of a specified date
earlier than the date of the Second Closing, on and as of such earlier date;
(iv) no Default or Event of Default (each as defined in the Term Loan Agreement)
shall have occurred and be continuing; PROVIDED, that for purposes of satisfying
this condition, the transactions contemplated by PARAGRAPH (A) above will be
deemed to have been effected on the First Closing Date; (v) the Company shall
have amended the Articles of Incorporation as provided in EXHIBIT C hereto; and
(vi) all corporate proceedings to be taken on the part of the Company in
connection with the issuance and the sale of the Series I Preferred Shares to
TIG and the Exchange and all documents incident thereto shall be reasonably
satisfactory in form and substance to TIG and the Company, and TIG shall have
received copies of all such documents and other evidence as TIG may reasonably
request in connection with such proceedings, including a certificate executed on
behalf of the Company by a duly authorized officer stating that the conditions
set forth in clauses (iii), (iv) and (v) above have been satisfied.
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(d) Notwithstanding anything in this SECTION 1.04 to the contrary, the
obligation of TIG to purchase the Series I Preferred Shares and effect the
Exchange shall terminate, without liability on the part of either party under
this SECTION 1.04 other than by reason of its breach of any provision hereof, on
the earlier to occur of (i) the date of issuance of a final nonappealable order
of the FDOI denying approval of the transactions contemplated by PARAGRAPH (A)
above and (ii) March 4, 1997 (such earlier date, the "REPURCHASE DATE").
(e) On the business day next following the Repurchase Date, at the
offices of the Company unless otherwise agreed, TIG will sell to the Company, at
a purchase price of $1.00 per share, a number of shares of Class B Common Stock
such that immediately following such sale, TIG will own 28.89% of the total
number of shares of Common Stock and Class B Common Stock outstanding on a fully
diluted basis (excluding shares issuable upon conversion of the loan outstanding
under the Term Loan Agreement), by delivering to the Company a certificate or
certificates representing such shares. In consideration for such sale, the
principal amount of the B Loan Note (as defined in the Term Loan Agreement)
shall be increased by an amount equal to the aggregate purchase price for such
shares.
1.05 OPTIONAL REPURCHASE. From and after the Repurchase Date and the
purchase of shares of Class B Common Stock by the Company pursuant to SECTION
1.04(E), the Company shall have the right, at its sole option, to purchase all,
but not less than all, of the shares of Class B Common Stock owned by TIG, at a
purchase price of $1.00 per share, so long as simultaneously therewith the
Company prepays all amounts outstanding under the Term Loan Agreement. Any
purchase by the Company pursuant to the preceding sentence shall occur on the
date designated in a written notice to TIG by the Company, which date shall in
no event be less than three (3) business days following receipt of such notice,
at the principal offices of the Company unless otherwise agreed.
1.06 FURTHER ASSURANCES. From and after the date hereof, the Company
and the Founders will execute such further documents and instruments and take
such further actions as may reasonably be requested by TIG to consummate the
purchase of the Purchased Shares, to effect the Exchange and to effect the other
purposes of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE FOUNDERS
The Company and each of the Founders hereby represents and warrants to
TIG as follows:
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2.01 CORPORATE ORGANIZATION AND QUALIFICATION; CHARTER DOCUMENTS.
(a) Each of the Company and its Subsidiaries (as defined below) is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has full corporate power and
authority to conduct its business as and to the extent now conducted and to own,
use and lease its assets and properties. Each of the Company and its
Subsidiaries is duly qualified, licensed or admitted to do business and is in
good standing in each jurisdiction in which the ownership, use or leasing of its
assets and properties, or the conduct or nature of its business, makes such
qualification, licensing or admission necessary. SECTION 2.01 of the letter
dated the date hereof and delivered to TIG by the Company concurrently with the
execution and delivery of this Agreement (the "COMPANY DISCLOSURE LETTER") sets
forth the name and jurisdiction of incorporation of the Company and each
Subsidiary of the Company and each jurisdiction in which the Company and each
such Subsidiary is qualified, licensed or admitted to do business. Except as
disclosed in SECTION 2.01 OF THE COMPANY DISCLOSURE LETTER, the Company does not
directly or indirectly own any equity or similar interest in, or any interest
convertible into or exchangeable or exercisable for, any equity or similar
interest in, any corporation, partnership, joint venture or other business
association or entity. As used in this Agreement, "SUBSIDIARY" means, with
respect to any party, any corporation or other organization, whether
incorporated or unincorporated, of which more than 50% of either the equity
interests in, or the voting control of, such corporation or other organization
is, directly or indirectly through Subsidiaries or otherwise, beneficially owned
by such party.
(b) The minute books, stock ledgers and other corporate documents of the
Company and its Subsidiaries made available to TIG prior to the execution and
delivery of this Agreement were true, complete and accurate records of the
information set forth therein.
2.02 CAPITAL STOCK; SERIES I PREFERRED SHARES.
(a) The authorized capital stock of the Company consists, on the date
hereof, of an aggregate of 26,000,000 shares consisting of (i) 15,000,000 shares
of Common Stock, of which 102,501 shares are duly and validly issued and
outstanding (and no shares of which are held in treasury), each of which shares
is fully paid and nonassessable, (ii) 1,000,000 shares of Class B Common Stock,
none of which has ever been issued and (iii) 10,000,000 shares of preferred
stock, par value $.01 per share ("PREFERRED STOCK"), 2,912,908 shares of which
have been designated Series I Preferred Stock, and none of which has ever been
issued. Except as set forth in SECTION 2.02 OF THE COMPANY DISCLOSURE LETTER and
other than the shares of Common Stock
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reserved for issuance as provided in PARAGRAPH (C) below, as of the date hereof
the Company has no shares of Common Stock or Preferred Stock reserved for
issuance. All shares of Common Stock reserved for issuance will be, upon
issuance in accordance with the terms specified in the instruments or agreements
pursuant to which they are issuable, duly authorized, validly issued, fully paid
and nonassessable. Except pursuant to this Agreement and except as set forth in
SECTION 2.02 OF THE COMPANY DISCLOSURE LETTER, there are no (i) outstanding
subscriptions, options, warrants, rights (including "phantom" stock rights),
preemptive rights or other contracts, commitments, understandings or
arrangements, including any right of conversion or exchange under any
outstanding security, instrument or agreement (together, "OPTIONS"), obligating
the Company or any of its Subsidiaries to issue, or obligating the Company, any
of its Subsidiaries or any of the Founders to sell, any shares of capital stock
of the Company or to grant, extend or enter into any Option with respect thereto
or (ii) voting trusts, proxies or other commitments, understandings,
restrictions or arrangements to which the Company or any of the Founders is a
party in favor of any Person (as defined below) with respect to the voting of or
the right to participate in dividends or other earnings on any capital stock of
the Company. As used in this Agreement, "PERSON" means any natural person,
corporation, general partnership, limited partnership, proprietorship, other
business organization, trust, union or association.
(b) The Class B Shares have been duly authorized by all necessary
corporate action on the part of the Company and, when issued in accordance with
the terms of this Agreement, will be validly issued, fully paid and
nonassessable. The Series I Preferred Shares have been duly authorized by all
necessary corporate action on the part of the Company, are effective to grant
the preferences, limitations and relative rights contemplated by the Articles of
Amendment and this Agreement to the holders thereof from time to time and, when
issued in accordance with the terms of this Agreement, will be validly issued,
fully paid and nonassessable. The issuance of the Purchased Shares is not
subject to any preemptive rights or rights of first refusal created by the
Company or otherwise existing.
(c) The shares of Common Stock issuable upon conversion of the Series I
Preferred Shares, upon the occurrence of the Exchange and upon conversion of the
loan under the Term Loan Agreement have been duly and validly reserved and are
not subject to any preemptive rights or rights of first refusal created by the
Company or otherwise existing, except as provided hereunder, and when so issued,
such shares will be duly authorized, validly issued, fully paid and
nonassessable.
(d) Except as disclosed in SECTION 2.02 OF THE COMPANY DISCLOSURE
LETTER, all of the outstanding shares of
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capital stock of each Subsidiary of the Company are duly authorized, validly
issued, fully paid and nonassessable and are owned, beneficially and of record,
by the Company or a Subsidiary wholly owned, directly or indirectly, by the
Company, free and clear of any liens, claims, mortgages, encumbrances, pledges,
security interests, equities and charges of any kind (each a "LIEN"). Except as
disclosed in SECTION 2.02 OF THE COMPANY DISCLOSURE LETTER, there are no (i)
outstanding Options obligating the Company or any of its Subsidiaries to issue
or sell any shares of capital stock of any Subsidiary of the Company or to
grant, extend or enter into any such Option or (ii) voting trusts, proxies or
other commitments, understandings, restrictions or arrangements in favor of any
Person other than the Company or a Subsidiary wholly owned, directly or
indirectly, by the Company with respect to the voting of or the right to
participate in dividends or other earnings on any capital stock of any
Subsidiary of the Company.
(e) Except as provided in this Agreement, in the Articles of Amendment
or as disclosed in SECTION 2.02 OF THE COMPANY DISCLOSURE LETTER, there are no
outstanding contractual obligations of the Company or any Subsidiary of the
Company to repurchase, redeem or otherwise acquire shares of any capital stock
of the Company or any Subsidiary of the Company or to provide funds to, or make
any investment (in the form of a loan, capital contribution or otherwise) in,
any Subsidiary of the Company or any other Person.
2.03 AUTHORITY. (a) The Company has full corporate power and authority
to enter into this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby and by the Articles of
Amendment, including, without limitation, the issuance and sale of the Purchased
Shares to TIG and the Exchange. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby and by the Articles of Amendment have been duly and validly
approved by the Board of Directors of the Company (the "BOARD OF DIRECTORS"),
and no other corporate proceedings on the part of the Company or its
shareholders are necessary to authorize the execution, delivery and performance
of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby and by the Articles of Amendment, including,
without limitation, under the FBCA, the Articles of Incorporation or the By-Laws
of the Company (the "BYLAWS"). This Agreement has been duly and validly executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (regardless of
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whether such enforceability is considered in a proceeding in equity or at law).
(b) Each of the Founders has full power and authority to enter into this
Agreement, to perform his obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by each Founder and constitutes a legal, valid and
binding obligation of each Founder enforceable against each Founder in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.04 NON-CONTRAVENTION; APPROVALS AND CONSENTS.
(a) The execution and delivery of this Agreement by the Company and
each Founder do not, and the performance by the Company and each Founder of
their respective obligations hereunder and the consummation of the transactions
contemplated hereby will not, conflict with, result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default under,
result in or give to any Person any right of payment or reimbursement,
termination, cancellation, modification or acceleration of, or result in the
creation or imposition of any Lien upon any of the assets or properties of the
Company or any of its Subsidiaries or any Founder under, any of the terms,
conditions or provisions of (i) the certificates or articles of incorporation or
by-laws (or other comparable charter documents) of the Company or any of its
Subsidiaries, (ii) any statute, law, rule, regulation or ordinance (together,
"LAWS"), or any judgment, decree, order, writ, permit or license (together,
"ORDERS"), of any court, tribunal, arbitrator, authority, agency, commission,
official or other instrumentality of the United States or any state, county,
city or other political subdivision (a "GOVERNMENTAL OR REGULATORY AUTHORITY"),
applicable to the Company, any of its Subsidiaries or any Founder or any of
their respective assets or properties, or (iii) any note, bond, mortgage,
security agreement, indenture, license, franchise, permit, concession, contract,
lease or other instrument, obligation or agreement of any kind (together,
"CONTRACTS") to which the Company, any of its Subsidiaries or any Founder is a
party or by which the Company, any of its Subsidiaries or any Founder or any of
their respective assets or properties is bound.
(b) Except for (i) the filing of the Articles of Amendment with the
Secretary of State of the State of Florida (which filing has been made prior to
the execution of this Agreement) and (ii) with respect to the transactions
contemplated to take place at the Second Closing, compliance with the applicable
sections of the Florida Statutes, no consent, approval
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or action of, filing with or notice to any Governmental or Regulatory Authority
or other public or private third party is necessary or required on the part of
the Company or any Founder under any of the terms, conditions or provisions of
any Law or Order of any Governmental or Regulatory Authority or any Contract to
which the Company or any of its Subsidiaries or any Founder is a party or by
which the Company or any of its Subsidiaries or any Founder or any of their
respective assets or properties is bound for the execution and delivery of this
Agreement by the Company or any Founder, the performance by the Company or any
Founder of their respective obligations hereunder or the consummation of the
transactions contemplated hereby.
2.05 OFFERING OF PURCHASED SHARES. Neither the Company, directly or
indirectly, nor any agent on its behalf has offered any shares to be sold to TIG
hereunder or any similar securities or has solicited an offer to acquire any
such shares or any similar securities from any Person so as to require
registration of the issuance and sale of any such shares to TIG under the
circumstances contemplated by this Agreement under the provisions of Section 5
of the Securities Act of 1933, as amended (the "SECURITIES ACT").
2.06 BROKERS. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by the Company and the
Founders directly with TIG without the intervention of any Person on behalf of
the Company or the Founders (other than Pegasus Advisors, Inc., which acted
solely as a reinsurance intermediary) in such manner as to give rise to any
claim for a finder's fee, brokerage commission or similar payment.
2.07 OTHER REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties of the Company set forth in Sections 4.04 through 4.19,
inclusive, of the Term Loan Agreement is true and correct; PROVIDED, HOWEVER,
that with respect to any such representation or warranty which is modified by
the term "Material Adverse Change", for the purposes of this SECTION 2.07 such
term shall mean (i) a material adverse change in the status of the business,
assets, liabilities, results of operations, condition (financial or otherwise),
property or prospects of the Company or any of its Subsidiaries, or (ii) any
event or occurrence of whatever nature which could have a material adverse
effect on the Company's or any Founder's ability to perform their respective
obligations under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TIG
TIG hereby represents and warrants to the Company and each of the
Founders as follows:
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3.01 ORGANIZATION. TIG is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Connecticut.
3.02 CORPORATE AUTHORITY. TIG has full corporate power and authority to
enter into this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement by TIG and the consummation by TIG of the
transactions contemplated hereby have been duly and validly approved by the
Board of Directors of TIG, and no other corporate proceedings on the part of TIG
or its shareholders are necessary to authorize the execution, delivery and
performance of this Agreement by TIG and the consummation by TIG of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by TIG and constitutes a legal, valid and binding
obligation enforceable against TIG in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
3.03 NON-CONTRAVENTION; APPROVALS AND CONSENTS.
(a) The execution and delivery of this Agreement by TIG do not and the
performance by TIG of its obligations hereunder and the consummation of the
transactions contemplated hereby will not, conflict with, result in a violation
or breach of, constitute (with or without notice or lapse of time or both) a
default under, result in or give to any Person any right of termination,
cancellation, modification or acceleration of, or result in the creation or
imposition of any Lien upon any of its assets or properties under, any of the
terms, conditions or provisions of (i) the certificate of incorporation or
by-laws of TIG, (ii) any Law or Order of any Governmental or Regulatory
Authority applicable to TIG or any of its assets or properties, or (iii) any
Contract to which TIG is a party or by which TIG or any of its assets or
properties is bound.
(b) Except for compliance with Section 628.461 of the Florida Statutes,
no consent, approval or action of, filing with or notice to any Governmental or
Regulatory Authority or other public or private third party is necessary or
required under any of the terms, conditions or provisions of any Law or Order of
any Governmental or Regulatory Authority or any Contract to which TIG is a party
or by which TIG or any of its assets or properties is bound for the execution
and delivery of this Agreement by TIG, the performance by TIG of its obligations
hereunder or the consummation of the transactions contemplated hereby, other
than such consents, approvals, actions, filings and notices which the failure to
make or obtain, as the case may be, individually or in the aggregate, could not
be reasonably
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expected to materially impair the ability of TIG to consummate the transactions
contemplated by this Agreement.
3.04 NATURE OF PURCHASE. TIG is purchasing the shares to be purchased
by it hereunder for its own account for investment, not as a nominee or agent,
and not with a view to the resale or distribution of such shares or any portion
thereof, and TIG has no present intention of selling, granting any participation
in, or otherwise distributing the same.
3.05 BROKERS. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by TIG directly with the
Company and the Founders without the intervention of any Person on behalf of TIG
in such manner as to give rise to any claim for a finder's fee, brokerage
commission or similar payment.
ARTICLE IV
AGREEMENTS OF THE PARTIES
4.01 RESTRICTIONS ON CERTAIN TRANSFERS; RIGHTS OF FIRST REFUSAL;
PARTICIPATION RIGHTS.
(a) Until such time (the "TERMINATION DATE") as the TIG Group
(as defined below) ceases to own at least ten percent (10%) of the Number of
Shares Outstanding (as defined below) and any Series I Preferred Shares, neither
TIG nor any Founder shall, directly or indirectly, assign, sell, pledge,
hypothecate or otherwise transfer or dispose of ("DISPOSE" or a "DISPOSITION")
any shares of Common Stock, Class B Common Stock or Series I Preferred Shares
beneficially owned by it, except that the foregoing restriction shall not apply
to (A) a Disposition to TIG Holdings, Inc., a Delaware corporation ("TIG
HOLDINGS"), or any other Person directly or indirectly controlled by or under
common control with TIG Holdings (collectively, the "TIG GROUP"), (B) (i) any
transfer or assignment for consideration or any gift of shares of Common Stock
by any Founder to any spouse, child, parent, sibling or grandchild of such
Founder, or to a trust of which there are no principal beneficiaries other than
such Founder or one or more of such relatives; (ii) any transfer by a Founder to
a legal representative in the event such Founder becomes mentally incompetent,
(iii) any transfer by a Founder by will or the laws of descent and distribution
(the Persons described in subclauses (i), (ii) and (iii) being referred to
herein as "PERMITTED FOUNDERS' TRANSFEREES"); or (iv) any Disposition by a
Founder or any Permitted Founders' Transferee to any other Founder or Permitted
Founders' Transferee; (C) a Disposition of Common Stock through a BONA FIDE
underwritten public offering registered under the Securities Act, (D) a sale by
the TIG Group of all of the Series I Preferred Shares as part of a transaction
in which all the shares of Common Stock owned by
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the TIG Group are being sold to any Person or group of Persons in accordance
with clause (G) below, (E) pursuant to a merger or consolidation of the Company
or a recapitalization of any shares of Common Stock, Class B Common Stock or
Series I Preferred Shares, (F) any sale of shares of Class B Common Stock to the
Company by TIG in accordance with SECTIONS 1.04(E) or 1.05 or (G) a cash sale of
shares of Common Stock or Class B Common Stock effected in accordance with the
provisions of paragraph (b) below; PROVIDED that in the case of, and as a
condition to, any Disposition to any Person pursuant to clauses (A), (B) or (G),
such Person (unless already a party hereto) shall simultaneously with such
Disposition agree in a written instrument, in form and substance satisfactory to
the other parties hereto, to be bound by the provisions of this Agreement to the
same extent as the transferor of the shares to such Person as though an original
signatory hereto. For purposes of this Agreement, "NUMBER OF SHARES OUTSTANDING"
means, as of any date, the aggregate number of shares of Common Stock and Class
B Common Stock actually outstanding on such date.
(b) Until the Termination Date, in the event that any Founder or group
of Founders, on the one hand, or any member or group of members of the TIG
Group, on the other hand (in either case, an "OFFEROR"), intends to sell any or
all of the shares of Common Stock or Class B Common Stock owned by it, in a
transaction to which none of clauses (A) through (F) of SECTION 4.01(A) is
applicable, such sale shall be subject to the terms and conditions set forth in
this SECTION 4.01(B).
(i) The Offeror shall first deliver:
(x) a written notice (the "SALE NOTICE") (1) in the case of any
intended sale by a Founder or group of Founders, to TIG, or (2) in the
case of any intended sale by any member or group of members of the TIG
Group, to the Founders (in each case, the "OFFEREE"), specifying the
number of shares of Common Stock or Class B Common Stock proposed to be
sold (the "OFFERED SECURITIES"), the identity of the proposed
transferee (the "PURCHASER") and the price and the other BONA FIDE
terms and conditions for such sale (the "SALE TERMS"), and attaching a
copy of the contract entered into with such Purchaser, which contract
shall be expressly subject to the Offeree's right of first refusal
hereunder, and such Sale Notice shall constitute an irrevocable offer
(subject to the satisfaction of all regulatory requirements) to the
Offeree, for the period of time set forth below, to sell the Offered
Securities on the Sale Terms, and
(y) concurrently with the Sale Notice, an irrevocable written offer
(the "OFFER TO
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PARTICIPATE") signed by the Purchaser offering to purchase from the
Offeree on the Sale Terms the number of shares of Common Stock or Class
B Common Stock obtained by multiplying the number of Offered Securities
by a fraction, the numerator of which is the aggregate number of shares
of Common Stock and Class B Common Stock owned by the Offeree on the
date of the Sale Notice, and the denominator of which is the aggregate
number of shares of Common Stock and Class B Common Stock owned by the
Offeree and the Offeror on the date of the Sale Notice; PROVIDED,
HOWEVER, that if any member of the TIG Group is the Offeror, in no
event shall the Founders be entitled to sell more than a number of
shares equal to 50% of the Offered Securities.
(ii) For a period of thirty (30) days following receipt of the Sale
Notice (the "OFFER PERIOD"), the Offeree (which, in the case of the
Founders, shall mean all of the Founders acting collectively through an
agent designated among them and, in the case of the TIG Group, shall mean
all members of the TIG Group acting collectively through an agent
designated among them) may (but shall not be obligated to) elect either:
(x) to purchase all, but not less than all, of the Offered Securities
on the Sale Terms by delivering to the Offeror an irrevocable written
notice stating (i) that the Offeree wishes to purchase such Offered
Securities, subject to the satisfaction of all regulatory requirements
(the "ACCEPTANCE NOTICE"), and (ii) in the case of a purchase by one or
more of the Founders, the name of each Founder purchasing Offered
Securities and the amount of Offered Securities being purchased by such
Founder; or
(y) to accept the Offer to Participate, in whole or in part, pursuant
to the terms and conditions set forth therein, by delivering written
notice of such acceptance (the "PARTICIPATION NOTICE") to the Offeror
and the Purchaser, stating the number of shares that the Offeree
desires to sell, which Participation Notice shall constitute an
agreement, binding on the Offeree, to sell the number of shares
specified in the Participation Notice to the Purchaser.
(iii) If, within the Offer Period, the Offeree has not delivered an
Acceptance Notice, then the Offeror shall have a period of thirty (30)
days (the "SELLING PERIOD") in which it shall be free to sell all, but not
less than all, of the Offered Securities (subject to the rights of any
Offeree that has delivered a Participation Notice to
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sell shares to the Purchaser) to the Purchaser on the Sale Terms; PROVIDED
that if such sale shall not have been consummated within the Selling
Period, none of such Offered Securities may be sold and all such Offered
Securities shall again be subject to the provisions of this SECTION 4.01
and may be sold only in the manner, and subject to the provisions, set
forth in this SECTION 4.01; and PROVIDED further, that the Selling Period
will be extended automatically until such time as each applicable
Governmental or Regulatory Authority has given a final determination
permitting or prohibiting or otherwise denying necessary authorization for
such purchase and sale and, in the case of a favorable determination, for
an additional five (5) business days.
(iv) Any purchase and sale pursuant to an Acceptance Notice shall
occur on the date designated by the Offeree, which date shall be within
thirty (30) days following the date of delivery of the Acceptance Notice,
at the principal offices of the Company unless otherwise agreed, subject
to the satisfaction of all applicable regulatory requirements. At the
closing of such purchase and sale, the Offeror will deliver certificates
evidencing the Offered Securities to be so purchased against delivery by
the Offeree of the price included in the Sale Terms. The Offeree and the
Offeror will use their reasonable best efforts to accomplish the
satisfaction of all applicable regulatory requirements with respect to
such purchase, and the date on which such purchase and sale must be
completed in accordance with this paragraph will be extended automatically
until such time as each applicable Governmental or Regulatory Authority
has given a final determination permitting or prohibiting or otherwise
denying necessary authorization for such purchase and sale and, in the
case of a favorable determination, for an additional five (5) business
days.
(c) The failure of any Offeree to deliver an Acceptance Notice or a
Participation Notice in connection with any one Sale Notice delivered by an
Offeror will not, in any manner, waive or otherwise impair the rights of such
Offeree to deliver an Acceptance Notice or a Participation Notice in connection
with any other Sale Notice.
4.02 PREEMPTIVE RIGHTS. (a) Unless any shares of Series I Preferred
Stock are outstanding, and for so long as (i) the TIG Group continues to own at
least ten percent (10%) of the Number of Shares Outstanding and (ii) the closing
date of the sale of any shares of Common Stock pursuant to an initial public
offering registered under the Securities Act has not occurred, in the event that
the Company shall issue any shares of Common Stock or Class B Common Stock
(including upon the exercise of any Option to acquire shares of Common Stock or
Class B Common Stock,
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other than the loan outstanding under the Term Loan Agreement) to any Person
other than a member of the TIG Group (a "TRIGGERING ISSUANCE"), TIG shall
thereafter have the right to purchase, in accordance with the terms of the next
succeeding paragraph, up to such number of shares of (i) unless the Exchange has
occurred, Class B Common Stock or (ii) if the Exchange has occurred, Common
Stock, which, together with the number of shares of Class B Common Stock or
Common Stock held by the TIG Group on the date of such purchase by TIG, will not
exceed the percentage of the Number of Shares Outstanding which was held by the
TIG Group immediately prior to such Triggering Issuance. The Company shall
promptly give TIG written notice of any Triggering Issuance.
(b) Any purchase by TIG pursuant to the provisions of the preceding
paragraph shall occur on the date designated in a written notice to the Company
by TIG, which date shall be within ninety (90) days following the date of
delivery of the notice of a Triggering Issuance, at the principal offices of the
Company unless otherwise agreed, subject to the satisfaction of all applicable
regulatory requirements. The purchase price to be paid by TIG in any such
purchase shall be equal to the price paid to the Company in connection with the
applicable Triggering Issuance. The Company and TIG will use their reasonable
best efforts to accomplish the satisfaction of all applicable regulatory
requirements with respect to such purchase, and the date on which such purchase
and sale is scheduled will be extended automatically until such time as each
applicable Governmental or Regulatory Authority has given a final determination
permitting or prohibiting or otherwise denying necessary authorization for such
purchase and sale and, in the case of a favorable determination, for an
additional five (5) business days.
4.03 DESIGNEE DIRECTOR. (a) Effective as of the date hereof, the Board
of Directors shall elect a designee of TIG to serve on the Board of Directors
from the date hereof until the end of the designee's term.
(b) Thereafter, until such time as (i) there ceases to be outstanding
any indebtedness of the Company under the Term Loan Agreement and (ii) the TIG
Group ceases to own any shares of Common Stock or Class B Common Stock or Series
I Preferred Shares, the Board of Directors shall, at each meeting of
stockholders of the Company at which the term of the director designated by TIG
expires, nominate for election as a director of the Company, in accordance with
the Company's procedures for nomination of directors as provided for in its
By-Laws, a designee of TIG to stand for election for a succeeding term, and
shall vote all management proxies in favor of such nominee, except for such
proxies that specifically indicate to the contrary.
- 15 -
(c) If any director designated by TIG in accordance with this SECTION
4.03 shall decline or be unable to serve for any other reason, the Board of
Directors shall promptly upon the request of TIG nominate or elect, as the case
may be, another designee of the TIG Group recommended by TIG to replace such
designee.
(d) In the event that the director designated by TIG is to be absent
from any Board of Directors meeting, a representative designated by TIG may
attend the meeting in the place of such director (but shall not have any of the
powers of a director). The Company shall reimburse the reasonable travel
expenses of the director designated by TIG or designated representative in
connection with his attendance at Board of Directors meetings.
(e) For so long as TIG has the right, pursuant to this SECTION 4.03,
to designate a member of the Board of Directors, the Company shall limit the
size of the Board of Directors to the number of directors as of the date hereof,
not including any director designated by TIG or Underwriters Reinsurance Company
("URC").
(f) Each of the Founders agrees to vote, in person or by proxy, all of
the shares of Common Stock owned by such Founder, at any annual or special
meeting of stockholders of the Company called for the purpose of voting on the
election of directors or by consensual action of stockholders without a meeting
with respect to the election of directors, in favor of the election of the
designee of TIG in accordance with this SECTION 4.03.
4.04 INDEMNIFICATION AND EXPENSES. (a) The Company shall indemnify TIG
and its officers, directors, employees, agents and affiliates in respect of, and
hold each of them harmless against, any loss, liability, cost or expense
(including, but not limited to, reasonable attorneys' fees) suffered, incurred
or sustained by any one of them or to which any of them becomes subject,
resulting from, arising out of or relating to (i) any misrepresentation, breach
of warranty or nonfulfillment of or failure to perform any covenant or agreement
on the part of the Company contained in this Agreement or (ii) any action
brought by any Person in connection with the transactions contemplated by this
Agreement; PROVIDED that the Company shall not be required to indemnify any such
Person in respect of any such loss, liability, cost or expense arising as a
result of such Person's breach of any provision of this Agreement, gross
negligence or wilful misconduct.
(b) The Company shall, promptly upon request therefor, reimburse TIG
for its reasonable out-of-pocket costs and expenses (including reasonable fees
and expenses of counsel not to exceed, together with such fees which are
reimbursed
- 16 -
pursuant to Section 9.03 of the Term Loan Agreement, $40,000) incurred in
connection with its purchase of securities of the Company pursuant to this
Agreement, including the preparation of this Agreement, the Term Loan Agreement,
the Registration Rights Agreement and the Reinsurance Agreement, and any related
documentation.
4.05 ACCESS. In addition to, and not in limitation of, the rights that
the director designated by TIG has under the FBCA to inspect the books and
records of the Company and its Subsidiaries, for so long as TIG has the right,
pursuant to SECTION 4.03, to designate a member of the Board of Directors, the
Company will permit TIG, or any representatives designated by it, to visit and
inspect, at TIG's expense, any of the properties of the Company or any of its
Subsidiaries, including its books and records (and to make photocopies thereof
or make extracts therefrom), and to discuss its affairs, finances and accounts
with its officers, employees and accountants, all to such reasonable extent and
at such reasonable times and intervals as TIG may reasonably request in
connection with the investment of TIG in the Company or to the extent required
by the director designated by TIG in order to carry out his fiduciary duties as
a director; PROVIDED, HOWEVER, that TIG and its representatives will keep
confidential any confidential or proprietary information obtained in connection
with the rights granted under this SECTION 4.05 that is not otherwise (a)
publicly available, (b) known or becomes known to the TIG Group on a
non-confidential basis from a source not bound by a confidentiality obligation
to the Company or (c) required to be disclosed under applicable law.
4.06 LOST SECURITIES. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of any
certificate evidencing shares of Class B Common Stock or Common Stock or Series
I Preferred Shares owned by any member of the TIG Group, and (in case of loss,
theft or destruction) of the agreement by TIG to indemnify the Company in
respect thereof, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of such
certificate, if mutilated, the Company will deliver in lieu of such certificate
a new certificate of the same type and the same aggregate number of shares
evidenced by the certificate so lost, stolen, destroyed or mutilated.
4.07 ISSUANCE OF CAPITAL STOCK. Until the Termination Date, neither
the Company nor Associated Business & Commerce Insurance Corporation ("ABC
INSURANCE") will authorize or issue any additional series of capital stock
without the prior written consent of TIG, except as permitted pursuant to
Section 6.13 of the Term Loan Agreement.
4.08 PUBLIC OFFERING. Until the earlier of the fourth anniversary of
the date hereof and the Termination Date, neither the Company nor ABC Insurance
shall complete an
- 17 -
underwritten public offering of its securities without the prior written consent
of TIG, other than shares of ABC Insurance's 6% Cumulative Convertible Preferred
Stock, Series A, issued to secure premium payments.
4.09 USE OF PROCEEDS. The Company shall use the proceeds from the sale
of the Purchased Shares solely for (i) the repayment of indebtedness owing by
the Company to URC, (ii) the purchase of equivalent amounts of Convertible
Preferred Stock, Series B, of ABC Insurance, when necessary to increase the
capital of ABC Insurance, (iii) loan repayment or prepayment to TIG, (iv)
redemption of Series I Preferred Stock and (v) reasonable operating expenses of
the Company.
4.10 CHARTER AND BY-LAW AMENDMENTS. The Company and each of the
Founders covenants and agrees that, for so long as TIG is entitled to designate
a member of the Board of Directors pursuant to SECTION 4.03, the Company shall
not amend its Articles of Incorporation or By-Laws without the prior written
consent of TIG.
4.11 LEGEND ON CERTIFICATES. Each certificate representing shares of
Common Stock or Class B Common Stock or Series I Preferred Shares beneficially
owned by any member of the TIG Group or any Founder shall be imprinted with a
legend in the following form until such time as all restrictions on the
Disposition of such shares hereunder are terminated:
"THESE SHARES MAY ONLY BE TRANSFERRED PURSUANT TO THE PROVISIONS OF
ARTICLE IV OF A CERTAIN SECURITIES PURCHASE AGREEMENT DATED AS OF
DECEMBER 4, 1996, BY AND AMONG ASSOCIATED BUSINESS & COMMERCE
HOLDINGS, INC., A FLORIDA CORPORATION, XXXXX XXXXX, XXXXXXXX X.
XXXXXXXXXX, XXXXXXXXX X. XXXXX, XXXXXX X. XXXXXX AND XXXXX X. XXXXXX,
AND TIG REINSURANCE COMPANY, A CONNECTICUT CORPORATION, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY."
The Company shall not (i) give effect on its books to an attempted Disposition
of any shares of Common Stock or Class B Common Stock or Series I Preferred
Shares which shall have been Disposed of in violation of any provision of this
Agreement, or (ii) treat any transferee who obtains any shares of Common Stock
or Class B Common Stock or Series I Preferred Shares in violation of any
provision of this Agreement as the owner of such shares or accord any transferee
thereof the right to vote or to receive dividends in respect of such shares. The
Company will issue new certificates not imprinted with the foregoing legend to
any holder of shares of Common Stock or Class B Common Stock or Series I
Preferred Shares not subject to the restrictions on Disposition contained in
this Agreement. Certificates representing Class B Shares, Series I Preferred
Shares and shares of Common Stock issued in the Exchange shall also bear such
- 18 -
legends as the Company reasonably determines are required to ensure compliance
with the Securities Act and applicable state securities or blue sky laws.
4.12 URC OPTIONS. For thirty (30) days after the date on which any
option to purchase shares of Common Stock or Class B Common Stock held by URC
pursuant to the Option Agreement, dated as of December 5, 1995, as amended,
among the Company, URC and the Founders (the "URC OPTION AGREEMENT") expires,
TIG shall have the right to purchase the number of shares of Common Stock or
Class B Common Stock, at TIG's option, which URC was entitled to purchase upon
exercise of such option, at a purchase price of $1.00 per share. Any purchase by
TIG pursuant to the preceding sentence shall occur on the date designated in a
written notice to the Company by TIG, which date shall be within such thirty
(30) day period, at the principal offices of the Company unless otherwise
agreed, subject to the satisfaction of all applicable regulatory requirements.
The Company and TIG will use their reasonable best efforts to accomplish the
satisfaction of all applicable regulatory requirements with respect to such
purchase, and the date on which such purchase and sale is scheduled will be
extended automatically until such time as each applicable Governmental or
Regulatory Authority has given a final determination permitting or prohibiting
or otherwise denying necessary authorization for such purchase and sale and, in
the case of a favorable determination, for an additional five (5) business days.
ARTICLE V
ADDITIONAL COVENANTS OF THE COMPANY
For so long as the TIG Group owns any Series I
Preferred Shares:
5.01 AFFIRMATIVE COVENANTS. The Company covenants and agrees that,
regardless of whether there remains outstanding any indebtedness of the Company
under the Term Loan Agreement, it shall comply with each of the covenants of the
Company set forth in Article V of the Term Loan Agreement.
5.02 NEGATIVE COVENANTS. The Company covenants and agrees that,
regardless of whether there remains outstanding any indebtedness of the Company
under the Term Loan Agreement, it shall not take any of the actions, or permit
to occur any of the events, set forth in Article VI of the Term Loan Agreement.
5.03 FINANCIAL COVENANTS. The Company covenants and agrees that,
regardless of whether there remains outstanding any indebtedness of the Company
under the Term Loan Agreement, it shall comply with each of the financial
covenants of the Company set forth in Article VII of the Term Loan Agreement.
- 19 -
ARTICLE VI
GENERAL PROVISIONS
6.01 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. The representations, warranties, covenants and agreements contained
in this Agreement or any other instrument delivered pursuant to this Agreement
shall survive the First and Second Closings hereunder.
6.02 AMENDMENT AND WAIVER. This Agreement may be amended, supplemented
or modified only by a written instrument duly executed by or on behalf of each
party hereto. Any term or condition of this Agreement may be waived at any time
by the party that is entitled to the benefit thereof, but no such waiver shall
be effective unless set forth in a written instrument duly executed by or on
behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Agreement, in any one or more instances, shall be
deemed to be or construed as a waiver of the same or any other term or condition
of this Agreement on any future occasion. All remedies, either under this
Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
6.03 NOTICES. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
(a) IF TO THE COMPANY:
Associated Business & Commerce Holdings, Inc.
x/x Xxxxxxxxxx, Xxxxxxx & Xxxxxx, XX
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
- 20 -
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
5300 First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) IF TO TIG:
TIG Reinsurance Company
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with copies to:
TIG Holdings, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
and
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
(c) If to the Founders, to the addresses set forth on the signature pages
hereto.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
6.04 ENTIRE AGREEMENT. (a) This Agreement supersedes all prior
discussions and agreements among the parties
- 21 -
hereto with respect to the subject matter hereof and thereof, including without
limitation, the term sheet entered into on November 15, 1996, and contains the
sole and entire agreement among the parties hereto with respect to the subject
matter hereof and thereof. To the extent that this Agreement conflicts with any
provision of any agreement among some or all of the Founders, the provisions of
this Agreement shall control. In addition, each Founder agrees that, on and
after the date of this Agreement, he shall not enter into any agreement or
understanding with any Person which would conflict with or be inconsistent with
the provisions of this Agreement.
(b) The Company Disclosure Letter is hereby incorporated into this
Agreement and made a part hereof for all purposes as if fully set forth herein.
6.05 PUBLIC ANNOUNCEMENTS. The parties hereto will consult in good
faith concerning the timing and content of any press release or other public
statement relating to this Agreement or the transactions contemplated hereby.
6.06 NO THIRD PARTY BENEFICIARY. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns. It is not the intention of the
parties to confer third-party beneficiary rights upon any other Person other
than a Person entitled to indemnity under.
6.07 NO ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other parties hereto and any attempt to
do so will be void, except that TIG may assign any or all of its rights,
interests and obligations hereunder to a member of the TIG Group, PROVIDED that
any such member agrees in writing to be bound by all of the terms, conditions
and provisions contained herein. Subject to the preceding sentence, this
Agreement is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns.
6.08 HEADINGS. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
6.09 INVALID PROVISIONS. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not
- 22 -
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom.
6.10 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof, except for matters relating to the internal corporate
affairs of the Company, which shall be governed by and construed in accordance
with the FBCA.
6.11 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
(a) Each party hereby irrevocably submits to the jurisdiction of any
State of New York or United States Federal court sitting in the Borough of
Manhattan, New York over any action or proceeding arising out of or relating to
this Agreement, the securities purchased hereunder or the Registration Rights
Agreement and irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such State of New York or Federal
court. Each party irrevocably consents to the service of any and all process in
any such action or proceeding by the mailing of copies of such process to such
party at its address specified in this Agreement. Each party agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Each party further waives any objection to venue in such State
and any objection to an action or proceeding in such State on the basis of forum
non conveniens. Each party agrees that any action or proceeding brought against
TIG shall be brought only in a State of New York or United States Federal court
sitting in the Borough of Manhattan, New York.
(b) Nothing in this SECTION 6.11 shall affect the right of any party
to serve legal process in any other manner permitted by law or affect the right
of any party to bring any action or proceeding against any other party hereto,
or their respective property, in the courts of any other jurisdictions.
(c) To the extent that any party has or hereafter may acquire immunity
from jurisdiction of any court or from any legal process (whether from service
or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, such party
hereby irrevocably waives such immunity in respect of its obligations under this
Agreement, the securities purchased hereunder and the Registration Rights
Agreement.
6.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an
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original, but all of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has signed this Agreement, or
caused this Agreement to be signed by its officer thereunto duly authorized, as
of the date first written above.
ASSOCIATED BUSINESS & COMMERCE
HOLDINGS, INC.
By: /s/Xxxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chairman
TIG REINSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FOUNDERS
/S/ XXXXX XXXXX
----------------------------
Name: Xxxxx Xxxxx
Address for Notices:
Associated Business & Commerce
Holdings, Inc.
x/x Xxxxxxxxxx, Xxxxxxx & Xxxxxx, XX
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
/s/ Xxxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Address for Notices:
Associated Business & Commerce
Holdings, Inc.
x/x Xxxxxxxxxx, Xxxxxxx & Xxxxxx, XX
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
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/s/ Xxxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxx
Address for Notices:
Associated Business & Commerce
Holdings, Inc.
x/x Xxxxxxxxxx, Xxxxxxx & Xxxxxx, XX
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
/s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Address for Notices:
Associated Business & Commerce
Holdings, Inc.
x/x Xxxxxxxxxx, Xxxxxxx & Xxxxxx, XX
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
/s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Address for Notices:
Associated Business & Commerce
Holdings, Inc.
x/x Xxxxxxxxxx, Xxxxxxx & Xxxxxx, XX
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
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