AGREEMENT TO FACILITATE MERGER
THIS AGREEMENT TO FACILITATE MERGER (this "Agreement") is
made and entered into as of April 9, 2003 by and among FISERV, INC., a
Wisconsin corporation ("Fiserv"), FISERV SOLUTIONS, INC., a Wisconsin
corporation ("Fiserv Solutions"), FISERV MERGER SUB, INC., a Delaware
corporation ("Fiserv Sub") and a wholly owned subsidiary of Fiserv Solutions,
BANKERS INSURANCE GROUP, INC., a Florida corporation ("BIG"), BANKERS
INSURANCE COMPANY, a Florida property and casualty insurance company ("BIC"),
BANKERS SECURITY INSURANCE COMPANY, a Florida property and casualty insurance
company ("BSIC"), and BONDED BUILDERS SERVICE CORP., a Florida home warranty
company ("BBSC," and with BIG, BIC and BSIC, each a "Shareholder" or,
collectively, the "Shareholders").
WHEREAS, as of the date hereof, the Shareholders own
beneficially and of record or have the power to vote, or direct the vote of,
an aggregate of 8,354,884 shares of common stock, par value $0.01 per share
("Company Common Stock"), of Insurance Management Solutions Group, Inc., a
Florida corporation (the "Company"), representing approximately 68% of the
outstanding Company Common Stock as of the date hereof; and
WHEREAS, on the date hereof, Fiserv, Fiserv Solutions,
Fiserv Sub and the Company are entering into that certain Agreement and Plan
of Merger, dated as of even date herewith (as entered into and as the same may
be modified or amended or any of its provisions waived pursuant to the terms
thereof, the "Merger Agreement"; capitalized terms used but not defined in
this Agreement shall have the meanings ascribed to them in the Merger
Agreement), which provides, upon the terms and subject to the conditions
thereof, for the merger of Fiserv Sub with and into the Company (the
"Merger"); and
WHEREAS, the Shareholders wish to see the Merger
consummated, and have determined the consummation of the Merger to be in the
best interests of the Shareholders; and
WHEREAS, as a condition to the willingness of Fiserv, Fiserv
Solutions and Fiserv Sub to enter into the Merger Agreement, Fiserv, Fiserv
Solutions and Fiserv Sub have requested that the Shareholders agree, and, in
order to induce Fiserv, Fiserv Solutions and Fiserv Sub to enter into the
Merger Agreement, the Shareholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
1. Vote in Favor of Merger. During the period commencing on the date
hereof and terminating upon the earlier of the Effective Time or the
termination of the Merger Agreement in accordance with its terms,
each Shareholder, in its capacity as a shareholder of the Company and
holder of any proxy or other right to cause or direct the voting of
any shares of Company Common Stock, agrees to (a) vote all shares of
Company Common Stock presently owned by Shareholder or any of its
Affiliates or for which Shareholder has voting power, and all shares
of Company Common Stock with respect to which Shareholder in the
future acquires ownership or is otherwise granted or obtains voting
power, at any meeting of the Shareholders of the Company (or any
adjournment thereof), (i) in favor of the approval and adoption of
the Merger Agreement and the transactions contemplated thereby,
including without limitation the Merger; and (ii) against any action
that could reasonably be expected to impede, interfere, delay, or
discourage the Merger, facilitate an acquisition of the Company or
all or substantially all of its assets or business, in any manner, by
a party (other than Fiserv or a subsidiary of Fiserv), or result in
any breach of representation, warranty, covenant or agreement of the
Company under the Merger Agreement, or (b) in the event written
consents are sought from the shareholders of the Company with respect
to the actions proposed in (i) or (ii) above, cause to be executed,
with respect to all shares of Company Common Stock then owned by
Shareholder or as to which Shareholder has the power to vote or to
direct the voting of, a written consent or written consents to such
proposed action. To the extent inconsistent with the foregoing
provisions of this Section 1, each Shareholder hereby revokes any and
all previous proxies with respect to any shares of Company Common
Stock that such Shareholder owns or has the right to vote. In
addition, each Shareholder agrees not to dispose of or otherwise sell
any shares of Company Common Stock owned by it, except to other
Shareholders subject to this Agreement.
2. No Solicitation. During the period commencing on the date hereof and
terminating upon the earlier of the Effective Time or the termination
of the Merger Agreement in accordance with its terms, each
Shareholder hereby agrees, and agrees to use commercially reasonable
efforts to cause its Affiliates, officers, directors, employees or
consultants or agents, not to (a) directly or indirectly, solicit,
initiate, encourage, accept or otherwise facilitate the making of an
Acquisition Proposal, (b) participate or engage in or encourage in
any way negotiations or discussions concerning, or provide any
non-public information to, any person or entity relating to an
Acquisition Proposal, or which may reasonably be expected to lead to
an Acquisition Proposal or (c) agree to or endorse any Acquisition
Proposal; provided, however, that nothing contained in this Section 2
or in any other provision of this Agreement will prohibit the Company
or any individual who is a member of the Board of Directors of the
Company from taking and disclosing to the Company's shareholders a
position contemplated by Rule 14e-2 promulgated under the Exchange
Act or from making any legally required disclosure to the Company's
shareholders or to the extent otherwise specifically permitted by the
Merger Agreement. For purposes of this Agreement, "Affiliate" shall
mean, with respect to any person or entity, any person or entity
that, directly or indirectly, controls, or any entity that is
controlled by, or is under common control with that Person.
3. Sale of Shares held by the Shareholders and their Affiliates. The
Shareholders agree that, as provided in the Merger Agreement, the
Merger Consideration to be paid pursuant to the Merger Agreement for
all of the shares of Company Common Stock held by the Shareholders
and their Affiliates that are not individuals shall be $3.26 per
share, in cash, without interest.
4. Limited Indemnification and Release. BIG will indemnify the
Indemnitees (as hereinafter defined) in accordance with the terms set
forth on Schedule 4 attached hereto. Each of the Shareholders grants
the release set forth on Schedule 4 attached hereto.
5. Non-Competition. Each Shareholder, on behalf of itself and each of
its current and future subsidiaries or Affiliates, covenants and
agrees from the Effective Time (except with respect to clause (b), as
qualified by clause (ii), from the date hereof) until the third
anniversary of the Effective Time (the "Non-Competition Period") not
to, directly or indirectly, (a) engage or invest in, or have any
competitive business relationship with, either as an owner, partner,
agent, consultant, creditor or otherwise, any business or commercial
activity relating to the processing of flood insurance in the United
States or (b) solicit, hire, cause to be hired, engage the services
of or otherwise enable, encourage or assist, directly or indirectly,
any persons which they knew or reasonably should know are employees
of the Company or any persons who are employees of Fiserv or its
subsidiaries with whom they came into contact in connection with the
transactions contemplated hereby to terminate their employment with
the Company or Fiserv or its Affiliate, as the case may be.
Notwithstanding the foregoing, either BIG or any other Shareholder
may (i) own capital stock in a publicly-traded company not to exceed
1% of the outstanding capital stock of such company and (ii) solicit
or hire any such IT personnel of the Company as are agreed to in
writing by the Company and such Shareholder prior to the Effective
Time. Each of Fiserv, Fiserv Solutions and Fiserv Sub, on behalf of
itself and each of its current and future subsidiaries or Affiliates,
covenants and agrees that during the Non-Competition Period, they
shall not solicit, hire, cause to be hired or otherwise enable,
encourage or assist, directly or indirectly, any persons which they
know or reasonably should know are employees of the Shareholders.
Each party agrees that the foregoing limitations are reasonable in
time and scope. Each party's obligations pursuant to this Section 5
shall arise only if the Merger becomes effective (except with respect
to clause (b), as qualified by clause (ii), which shall be effective
from the date hereof) and then such obligations shall survive for the
Non-Competition Period. If the transactions contemplated by the
Merger Agreement are abandoned in accordance with the Merger
Agreement, the agreement set forth in this Section 5 shall terminate
immediately upon such abandonment.
6. Representations and Warranties of the Shareholders. Each of the
Shareholders represents and warrants to Fiserv, Fiserv Solutions and
Fiserv Sub that: (i) each such Shareholder has the legal capacity to
enter into and perform all of its respective obligations under this
Agreement; (ii) the execution, delivery and performance of this
Agreement by each such Shareholder will not violate any other
agreement to which such Shareholder is a party, including, without
limitation, any voting agreement, shareholders agreement or voting
trust; (iii) this Agreement has been duly executed and delivered by
each such Shareholder and constitutes a legal, valid and binding
agreement of each such Shareholder, enforceable against it in
accordance with its terms; (iv) each such Shareholder owns
beneficially, and has full voting power with respect to, the shares
of Company Common Stock that it is making its agreement with respect
to under Section 1 hereof, other than shares beneficially owned by
Affiliates over which such Shareholder does not have voting power,
and; (v) no shares of Company Common Stock held by such Shareholder
are subject to any voting agreement other than this Agreement.
7. Officer and Director Insurance. After the Effective Time, Fiserv
shall take all actions to ensure that the Surviving Corporation
complies with its obligations set forth in Section 6.17 of the Merger
Agreement. To the extent not paid prior to the Effective Time, Fiserv
shall cause the Surviving Corporation to pay half the premium for any
"tail coverage" policy acquired, and BIG agrees to pay the other half
of the premium for any such "tail coverage" policy acquired plus any
premium payable in respect of naming BIG as an additional insured
under such policy.
8. Successors and Assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties, except that any
Shareholder may transfer shares of Company Common Stock, together
with its rights, interests and obligations hereunder to BIG or any
direct or indirect wholly owned subsidiary of BIG; provided, however,
that no such assignment shall relieve any party of its obligations
hereunder; and provided, further, however, that, at the Effective
Time upon consummation of the Merger, by operation of law, the
Surviving Corporation shall succeed to Fiserv Sub's rights hereunder.
Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
9. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement is
not performed according to its specific terms and that the parties
shall be entitled to seek specific performance of the terms hereof,
in addition to any other remedy at law or in equity. The parties
agree that in the event any or all of the Shareholders do not perform
in full their obligations under Sections 1 and 2 hereof, BIG shall
pay Fiserv (the "Vote Fee"), in consideration of the considerable
effort and expense Fiserv has incurred in connection with the
transactions contemplated under this Agreement, $1,200,000 payable
upon the termination of the Merger Agreement; provided, however that
(a) the Vote Fee will not be owed to Fiserv by BIG in the event that
(i) the Fee is payable by the Company pursuant to the terms of the
Merger Agreement or (ii) the approval of shareholders has been
obtained in accordance with Section 7.01(b) of the Merger Agreement,
and (b) the Fee under the Merger Agreement shall not be owed by the
Company at any time after the Vote Fee has been paid by BIG.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all
of which together shall constitute one and the same document.
11. Further Assurances. Each of the Shareholders shall execute and
deliver such additional documents and take such further action as may
be necessary or desirable to consummate the transactions contemplated
by this Agreement.
12. Third-Party Beneficiaries. Nothing in this Agreement, expressed or
implied, shall be construed to give any person other than the parties
hereto any legal or equitable right, remedy, or claim under or by
reason of this Agreement or any provision contained herein.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida applicable to
contracts made and to be performed therein.
14. Jurisdiction and Venue. The parties agree that any proceeding
relating to this Agreement shall be brought in a court of Florida.
Each of the parties consents to personal jurisdiction in any such
action brought in any such Florida court, consents to service of
process by registered mail made upon such party and such party's
agent, and waives any objection to venue in any such Florida court or
to any claim that any such Florida court is an inconvenient forum.
The prevailing party in any suit or action brought against any other
party to enforce the terms of this Agreement or any rights or
obligations hereunder shall be entitled to receive reimbursement of
its costs, expenses and attorneys' fees (internal and external) and
disbursements, including the costs and expenses of experts and
internal resources expended, actually incurred in connection with
such suit or action.
15. No Amendment of Merger Agreement. Fiserv, Fiserv Solutions and Fiserv
Sub shall not amend the Merger Agreement without the prior written
consent of BIG, which consent shall not be unreasonably withheld.
16. Payment for Shares. At the Effective Time, (a) each of the
Shareholders and their Affiliates shall surrender their Company
Certificates representing all shares of Company Common Stock held by
the Shareholders or their Affiliates and (b) Fiserv shall pay to each
Shareholder or their Affiliates, as the case may be, by wire transfer
cash in the amount of $3.26 per share of Company Common Stock
represented by each Shareholder's Company Certificates to such
accounts as are designated by such Shareholders or their Affiliates.
17. Termination. This Agreement shall terminate upon the earlier of the
Effective Time or termination of the Merger Agreement in accordance
with its terms; provided, however, that the provisions of Section 4,
Section 5, Section 6, Section 7, Section 8, Section 9, Section 10,
Section 11, Section 12, Section 13, Section 14 and this Section 17
shall continue in effect following the Effective Time in accordance
with the respective provisions thereof, and the provisions of Section
9 and Section 14 shall continue in effect following the termination
of the Merger Agreement.
IN WITNESS WHEREOF, each of Fiserv, Fiserv Solutions and Fiserv Sub,
on the one hand, and the Shareholders, on the other hand, has caused this
Agreement to Facilitate Merger to be executed by its duly authorized officer,
as of the date and year first above written.
FISERV, INC. BANKERS INSURANCE GROUP, INC.
By /s/ Xxxxxx X. Xxxx By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxxx
Title: President and Chief Title: President
Executive Officer
FISERV SOLUTIONS, INC. BANKERS INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxx By /s/ Xxxxx X. Xxxxxx
---------------------------- ---------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: President Title: President
FISERV MERGER SUB, INC. BANKERS SECURITY INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxx By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: President Title: President
BONDED BUILDERS SERVICE CORP.
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chairman