REGISTRATION RIGHTS AGREEMENT
Exhibit
F
THIS
REGISTRATION RIGHTS AGREEMENT
(this “Agreement”) is entered into as of May 7, 2007 among
Universal American Financial Corp., a New York corporation (the
“Company”), and the other parties named on the signature pages
hereto (or which become a party to this Agreement after the date hereof pursuant
to the terms hereof) (each, a “Holder” and, collectively, the
“Holders”).
WHEREAS,
the Company is entering into
this Agreement as contemplated by that certain Securities Purchase Agreement
dated as of the date of this Agreement (the “Securities Purchase
Agreement”).
NOW,
THEREFORE, in consideration of the
premises, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Company, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE
1- DEFINITIONS
The
following terms, as used herein,
have the following meanings:
“Affiliate”
means,
with
respect to any Person, any other Person who directly or indirectly, through
one
or more intermediaries, controls, is controlled by, or is under common control
with, such Person. The term “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “controlled” and
“controlling” have meanings correlative thereto. For
purposes hereof, the Company shall not be considered an Affiliate of any Initial
Investor Holder. In addition, for purposes of the definition of
“Registrable Securities” hereunder, the Affiliates of an Initial Investor Holder
shall be deemed to include one or more funds or other investment vehicles under
common management with such Initial Investor Holder.
“Business
Day” means
any day except a Saturday, Sunday or other day on which commercial banks in
New
York City are authorized by law to close.
“Common
Stock” means
the Company’s authorized shares of common stock, par value $0.01 per
share.
“Exchange
Act” means
the United States Securities Exchange Act of 1934, as amended, and the rules
and
regulations promulgated thereunder.
“Initial
Holders” means
the Initial Investor Holders and Xxxxxxx Xxxxxxx, and an “Initial
Holder” means any of the foregoing.
“Initial
Investor
Holders” means each of (1) Capital Z Financial Services Fund II, L.P.,
Capital Z Financial Services Private Fund II, L.P., Union Square Universal
Partners, L.P. (the entities in this clause (1) collectively, the
“CapZ/USP Group”), (2) Xxx-Universal Holdings, LLC (the
“Xxx Group”), (3) Perry Partners, L.P., Perry Partners
International, Inc., Perry Commitment Fund, L.P., Perry Commitment Master Fund,
L.P. (the entities in this clause (3) collectively, the “Perry
Group”), (4) Welsh, Carson, Xxxxxxxx & Xxxxx IX, L.P. and Welsh,
Carson, Xxxxxxxx & Xxxxx X, L.P. (the entities in this clause (4)
collectively, the “WCAS Group”); and an “Initial Investor
Holder” means any of the foregoing entities. The CapZ/USP
Group, the Xxx Group, the Perry Group and the WCAS Group are sometimes referred
to herein each as “Initial Investor Group.”
“MH
Merger Agreement”
means that certain Agreement and Plan of Merger and Reorganization,
dated as of
the date of this Agreement, among the Company, MHRx LLC, MemberHealth, Inc.
and
the other parties thereto.
“Person”
means
an
individual, corporation, limited liability company, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“Preferred
Shares”
means shares of Series A Preferred Stock and Series B Preferred Stock
of the
Company.
“Registrable
Securities” means (i) all shares of Common Stock respectively owned by
the Initial Holders and their respective Affiliates as of the date of this
Agreement, (ii) any and all shares of Common Stock respectively acquired by
the
Initial Holders or their respective Affiliates on, and from and after, the
date
of this Agreement (whether directly or indirectly through conversion or exchange
of Preferred Shares or non-voting common shares, or other convertible or
exchangeable securities, of the Company, or pursuant to the exercise of options,
warrants or rights, or pursuant to the MH Merger Agreement, or otherwise),
and
(iii) any securities issued directly or indirectly with respect to such shares
described in clause (i) or (ii) by way of a stock dividend, split, or other
division of securities, or in connection with a combination or reclassification
of securities, or in connection with a recapitalization, merger, consolidation,
share exchange or other reorganization of the Company. As to any
particular Registrable Securities, such Registrable Securities shall cease
to be
Registrable Securities when they (A) have been sold pursuant to a registration
statement that was filed with the SEC and declared effective under the
Securities Act, (B) have been sold to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Securities Act, (C) are eligible
for
sale to the public by the holder thereof, without limitation as to manner of
sale or volume, pursuant to Rule 144(k) under the Securities Act
(provided that this clause (C) shall not apply to shares held by any
Initial Investor Holder), (D) have been sold in a private transaction in which
the transferor’s registration rights under this Agreement with respect to such
securities were not assigned to the transferee of such securities, or (E) ceased
to be outstanding.
“Registration
Expenses”
means any and all expenses incident to the performance of or compliance
with any
registration of securities, or marketing of securities in a public offering,
including all (i) registration and filing fees, and all fees and expenses
payable in connection with the listing of securities on any securities exchange
or quotation system, (ii) fees and expenses of compliance with any securities
or
“blue sky” laws (including reasonable fees and disbursements of counsel in
connection with “blue sky” qualifications of the securities registered), (iii)
expenses in connection with the preparation, printing, mailing and delivery
of
any registration statements, prospectuses and other documents in connection
therewith and any amendments or supplements thereto, (iv) security engraving
and
printing expenses, (v) internal expenses of the Company (including all salaries
and expenses of its officers and employees performing legal or accounting duties
and the expenses of any annual audit or quarterly review), (vi) fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses
associated with the delivery by independent certified public accountants of
any
comfort letters to be provided pursuant to Article 2 hereof), (vii) fees and
expenses of any special experts retained by the Company in connection with
such
registration, (viii) the reasonable fees and out-of-pocket expenses of one
firm
of counsel to the Holders participating in the offering selected by the Holders
holding the majority of the Registrable Securities to be sold for the account
of
all Holders in the offering, (ix) fees and expenses in connection with any
review by the NASD of the underwriting arrangements or other terms of the
offering, and all fees and expenses of any “qualified independent underwriter”
or other independent appraiser participating in any offering pursuant to the
Bylaws of the NASD, including the fees and expenses of any counsel thereto,
(x)
fees and disbursements of underwriters customarily paid by issuers or sellers
of
securities, provided, however, that any underwriting fees, discounts
and commissions attributable to the sale of Registrable Securities shall not
be
“Registration Expenses” hereunder, (xi) costs of printing and producing any
agreements among underwriters, underwriting agreements, any “blue sky” or legal
investment memoranda and any selling agreements and other documents in
connection with the offering, sale or delivery of the Registrable Securities,
(xii) transfer agents’, registrars’, stock custodians’ and DTC fees and
expenses, and (xiii) expenses relating to any analyst or investor presentations
undertaken pursuant to Article 2 hereof in connection with the registration,
marketing or selling of Registrable Securities.
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“SEC”
means
the United
States Securities and Exchange Commission.
“Securities
Act” means
the United States Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
Other
Definitional and Interpretive
Matters. Unless otherwise expressly provided, for purposes of
this Agreement the following rules of interpretation shall apply: (i)
When calculating the period of time before which, within which or following
which any act is to be done or step taken pursuant to this Agreement, the date
that is the reference date in calculating such period shall be
excluded. If the last day of such period is a non-Business Day, the
period in question shall end on the next succeeding Business
Day. (ii) The division of this Agreement into Articles, Sections and
other subdivisions and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in construing or interpreting
this Agreement. (iii) The word “including” shall be deemed followed
by “(but not limited to)”.
ARTICLE
2
– REGISTRATION RIGHTS
SECTION
2.01. Demand
Registration.
(a) If
at any
time or from time to time the Company shall receive a written request from
(x) a
Holder or Holders holding more than 15% of the then outstanding Registrable
Securities (assuming for this purpose that all Preferred Shares are converted
in
full, and irrespective of any limitations on conversion contemplated by the
Certificates of Designations of such stock) or (y) any Initial Investor Holder
(such requesting Person(s), the “Requesting Holders”), that the
Company effect the registration under the Securities Act of all or any portion
of such Requesting Holders’ Registrable Securities, and specifying the intended
method of disposition thereof, then the Company shall promptly give notice
of
such requested registration (each such request, a “Demand
Registration”) at least 21 days
prior to the
anticipated filing date of the registration statement relating to such Demand
Registration to the other Holders, and the Company shall effect (subject to
the
limitations set forth in Sections 2.01(e) hereof), as expeditiously as possible,
the registration under the Securities Act of:
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(i)
all Registrable Securities for which the
Requesting Holders have requested registration under this Section 2.01,
and
(ii) all
other Registrable Securities that any other Holders (all such Holders, together
with the Requesting Holders, the “Registering Holders”) have
requested the Company to register by request received by the Company within
14 days after
such Holders receive the Company’s notice of the Demand Registration, all to the
extent necessary to permit the disposition (in accordance with the intended
methods of disposition specified in such request) of the Registrable Securities
so to be registered; provided that no Person may participate in any
registration statement pursuant to this Section 2.01(a) for an underwritten
offering unless such Person agrees to sell its Registrable Securities to the
underwriters selected as provided in Section 2.05(f) on the same terms and
conditions as apply to the Requesting Holders (including pursuant to the terms
of any over-allotment or “green shoe” option requested by the managing
underwriter; provided that no Holder will be required to sell more than
the number of Registrable Securities that such Holder has requested the Company
to include in such transaction) and completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements;
provided, however, that no such Registering Holder shall be required to
make any representations or warranties in connection with any such registration
other than representations and warranties as to (i) such Person’s ownership of
its Registrable Securities to be transferred free and clear of all liens, claims
and encumbrances, (ii) such Person’s power and authority to effect such
transfer, and (iii) such matters as may be reasonably requested pertaining
to
such Person’s compliance with securities laws; provided further,
however, that the obligation of such Person to indemnify pursuant to any
such underwriting arrangements shall be several, not joint and several, among
such Persons selling Registrable Securities, and the liability of each such
Person shall be in proportion thereto; and provided, further, that such
liability shall be limited to the net amount received by such Person from the
sale of its Registrable Securities pursuant to such offering;
provided
that, subject to Section 2.01(d) hereof, the Company shall not be obligated
to:
(A) effect
any Demand Registration pursuant to clause (x) of the first paragraph of this
Section 2.01(a) unless the aggregate gross proceeds expected to be received
from
the sale of the Registrable Securities requested to be included by all
Registering Holders in such Demand Registration are at least $50 million (prior
to deducting underwriting discounts and commissions);
(B) effect
more than one Demand Registration per Initial Investor Holder pursuant to clause
(y) of the first paragraph of this Section 2.01(a) or effect more than two
Demand Registrations per Initial Investor Group pursuant to clause (y) of the
first paragraph of this Section 2.01(a) (it being understood that the
limitations in this clause (B) shall not limit rights to Demand Registrations
pursuant to clause (x) of the first paragraph of this Section
2.01(a));
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(C) effect
a Demand Registration within 180 days of having effected a prior Demand
Registration pursuant to this Section 2.01.
(b) Promptly
after the expiration of the 14-day period referred to in Section 2.01(a)(ii)
hereof, the Company will notify all Registering Holders of the identities of
the
other Registering Holders and the number of shares of Registrable Securities
requested to be registered. At any time prior to the effective date
of the registration statement relating to such registration, the Requesting
Holders holding a majority of the Registrable Securities requested by such
Requesting Holders to be included in such registration may revoke such request
without liability to any of the other Registering Holders, by providing a notice
to the Company revoking such request.
(c) The
Company shall be liable for and pay all Registration Expenses in connection
with
each Demand Registration, regardless of whether such registration is
effected.
(d) A
Demand
Registration shall not be deemed to have occurred:
(i)
unless (A) the registration statement
relating thereto shall have become effective under the Securities Act and shall
have remained effective for a period of at least 180 consecutive days (or such
shorter period in which all Registrable Securities of the Registering Holders
included in such registration have actually been sold thereunder),
provided that such registration shall not be considered a Demand
Registration if, after such registration statement becomes effective, such
registration statement (or the use of the related prospectus) is interfered
with
by any stop order, injunction or other order or requirement of the SEC or other
governmental agency or court, and (B) if in connection with an underwritten
offering, all customary conditions in the applicable underwriting agreement
shall have been satisfied, other than any failure primarily due to an act,
omission or misrepresentation of a Holder participating therein; or
(ii) if
due to the Demand Maximum Offering Size provision of Section 2.01(e) hereof,
less than 75% of the Registrable Securities of the Requesting Holders sought
to
be included in such registration are included.
(e) If
a
Demand Registration involves an underwritten public offering and the managing
underwriter advises the Requesting Holders that, in its view, the number of
shares that the Registering Holders propose to include in such registration
exceeds the largest number of shares that can be sold without having an adverse
effect on such offering, including the price at which such shares can be sold
(the “Demand Maximum Offering Size”), the Company shall include
in such registration, in the priority listed below, up to the Demand Maximum
Offering Size:
(i)
first, all Registrable Securities requested to be
registered by the Requesting Holders and all Registrable Securities requested
to
be included in such registration by any other Registering Holders (allocated,
if
necessary for the offering not to exceed the Demand Maximum Offering Size,
pro rata among such Requesting Holders and other Registering Holders on
the basis of the relative number of Registrable Securities so requested to
be
included in such registration by each); and
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(ii) second,
any shares of Common Stock proposed to be registered by the Company for its
own
account.
(f) The
Company may defer the filing (but not the preparation) of a registration
statement required by Section 2.01 hereof until a date not later than 90 days
after the date of the request to file such registration statement if (i) at
the
time the Company receives the request to register shares, the Company is engaged
in confidential negotiations or other confidential business activities or the
Board of Directors of the Company determines that the Company is at such time
otherwise in possession of material non-public information with respect to
the
Company, in each case, disclosure of which would be required in such
registration statement (but would not be required if such registration statement
were not filed), and the Board of Directors of the Company determines in good
faith that such public disclosure at that time would be materially detrimental
to the Company and its stockholders (other than, if applicable, the Holders
requesting such registration), or (ii) prior to receiving the request to
register shares, the Board of Directors of the Company had resolved to effect
a
registered underwritten public offering of Company equity securities for the
Company’s account and the Company had taken substantial steps (including, but
not limited to, selecting a managing underwriter for such offering) and is
actively proceeding with reasonable diligence to effect such
offering. A deferral of the filing of a registration statement
pursuant to this Section 2.01(f) shall be lifted, and the requested registration
statement shall be filed forthwith, if, in the case of a deferral pursuant
to
clause (i) of the preceding sentence, the negotiations or other activities
are
terminated or publicly disclosed (or such material non-public information has
been publicly disclosed), or, in the case of a deferral pursuant to clause
(ii)
of the preceding sentence, the proposed registration for the Company’s account
is abandoned. In order to defer the filing of a registration
statement pursuant to this Section 2.01(f), the Company shall promptly (but
in
any event within 7 days), upon determining to seek such deferral, deliver to
each Holder requesting such registration a certificate signed by an executive
officer of the Company stating that the Company is deferring such filing
pursuant to this Section 2.01(f) and (unless such Holder had previously
requested in writing that the Company not disclose to it such information under
this paragraph) a general statement of the reason for such deferral and an
approximation of the anticipated delay (to the extent it shall be legally
permissible for the Company to so disclose such information to such
Holder). The Company may defer the filing of a registration statement
pursuant to this Section 2.01(f) only once in any 360-day period and the period
of deferrals shall not exceed 90 days in the aggregate over any 360-day
period.
SECTION
2.02. Piggyback
Registration.
(a) If
the
Company proposes to register any equity securities under the Securities Act
(other than pursuant to Section 2.01 hereof and other than (i) a registration
on
Form S-4 related to a merger, business acquisition or business combination
involving the Company, (ii) a registration on Form S-8 relating to a Company
equity compensation plan for directors or employees of the Company and its
subsidiaries, (iii) a registration on Form S-2 relating to shares issued prior
to the date of this Agreement, or relating to shares issuable upon exercise
of
incentive stock options, in each case, issued to the Company’s agents under the
Company’s incentive compensation plans for agents of the Company and its
subsidiaries or (iv) a registration on Form S-3 filed as contemplated by that
certain registration rights letter agreement executed by the Company pursuant
to
the MH Merger Agreement and covering exclusively shares of Common Stock issued
pursuant to the MH Merger Agreement), the Company shall at each such time give
prompt written notice at least 21 days prior to
the
anticipated filing date of the registration statement relating to such
registration to each Holder, which notice shall offer such Holder the
opportunity to include in such registration statement all or any portion of
the
Registrable Securities held by such Holder (a “Piggyback
Registration”), subject to the limitations set forth
herein. Upon the request of any such Holder made within 14 days after
the receipt of notice from the Company (which request shall specify the number
of Registrable Securities intended to be registered by such Holder), the Company
shall use its reasonable best efforts to effect the registration under the
Securities Act of all Registrable Securities that the Company has been so
requested to register by all such Holders, to the extent required to permit
the
disposition of the Registrable Securities so to be registered, provided
that if such registration involves an underwritten public offering, all such
Holders requesting to be included in the Company’s registration must sell their
Registrable Securities to the underwriters on the same terms and conditions
as
apply to other selling stockholders, to the extent applicable to the Holders
(including pursuant to the terms of any over-allotment or “green shoe” option
requested by the managing underwriter; provided that no Holder will be
required to sell more than the number of Registrable Securities that such Holder
has requested the Company to include in such transaction) and consistent with
the provisions of this Agreement (including Sections 2.06, 2.07, 2.08 and 2.09
hereof); provided, however, that no such Holder shall be required to
make any representations or warranties in connection with any such registration
other than representations and warranties as to (i) such Person’s ownership of
its Registrable Securities to be transferred free and clear of all liens, claims
and encumbrances, (ii) such Person’s power and authority to effect such
transfer, and (iii) such matters as may be reasonably requested pertaining
to
such Person’s compliance with securities laws; provided further,
however, that the obligation of such Holder to indemnify pursuant to any
such underwriting arrangements shall be several, not joint and several, among
such Persons selling Registrable Securities, and the liability of each such
Person shall be in proportion thereto, and provided further, that such
liability shall be limited to the net amount received by such Holder from the
sale of its Registrable Securities pursuant to such offering. If, at
any time after giving notice pursuant to this Section 2.02(a) of its intention
to register any shares and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register such shares, the Company shall give
notice to all such Holders and, thereupon, shall be relieved of its obligation
to register any Registrable Securities in connection with such
registration. No registration effected under this Section 2.02 shall
relieve the Company of its obligations to effect a registration to the extent
required by Section 2.01 hereof. The Company shall be liable for and
pay all Registration Expenses in connection with each Piggyback Registration,
regardless of whether such registration is effected.
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(b) If
a
Piggyback Registration involves an underwritten public offering (for the
avoidance of doubt, other than any Demand Registration, in which case the
provisions with respect to priority of inclusion in such offering set forth
in
Section 2.01(e) hereof shall apply) and the managing underwriter advises the
Company that, in its view, the number of shares that the Company and selling
Holders propose to include in such registration exceeds the largest number
of
shares that can be sold without having an adverse effect on such offering,
including the price at which such shares can be sold (the “Piggyback
Maximum Offering Size”), the Company shall include in such
registration, in the following priority, up to the Piggyback Maximum Offering
Size:
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(i)
first, such number of shares proposed to be
registered for the account of the Company, if any, as would not cause the
offering to exceed the Piggyback Maximum Offering Size;
(ii) second,
such number of shares owned by Persons exercising “demand” registration rights
with respect to such registration (which rights shall not have been granted
in
violation of this Agreement), if any, as would not cause the offering to exceed
the Piggyback Maximum Offering Size; and
(iii) third,
all Registrable Securities requested to be included in such registration by
any
Holders pursuant to this Section 2.02 (allocated, if necessary for the offering
not to exceed the Piggyback Maximum Offering Size, pro rata among such
Holders based on the relative number of Registrable Securities requested to
be
included in the Piggyback Registration).
SECTION
2.03. Subsequent
Registration Rights. The Company shall not enter into any
agreement with respect to any equity securities that grants or provides holders
of such securities with registration rights that have terms more favorable
than
the registration rights granted to holders of the Registrable Securities in
this
Agreement unless similar rights are granted to holders of Registrable
Securities. For the avoidance of doubt, this Section is not intended
to relate to registration rights granted in relation to the MH Merger Agreement
as in effect on the date of this Agreement.
SECTION
2.04. Acknowledgement. The
Company acknowledges that its covenants and agreements set forth in this
Agreement are in addition to, and not in substitution of, any covenants and
agreements that may otherwise run in favor of a Holder or its
Affiliates.
SECTION
2.05. Registration
Procedures. Whenever any Holders request that any Registrable
Securities be registered pursuant to Section 2.01 or Section 2.02 hereof, the
Company shall (subject to the provisions of such Sections) effect the
registration of such Registrable Securities in accordance with the Holders’
respective intended method of disposition thereof as quickly as practicable
and,
in connection with any such request:
(a) The
Company shall as expeditiously as possible prepare and file with the SEC a
registration statement on a form for which the Company then qualifies and that
counsel for the Company shall deem appropriate and which form shall be available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the Holders’ respective intended method of distribution thereof,
and promptly prepare and file with SEC such necessary or appropriate amendments
and supplements, and take such other action, to cause such filed registration
statement to become and remain effective for a period of not less than 180
days
(or such shorter period in which all of the Registrable Securities of the
Holders included in such registration statement shall have actually been sold
thereunder).
(b) Prior
to
filing a registration statement or prospectus or any amendment or supplement
thereto, the Company shall furnish to each participating Holder and each
underwriter, if any, of the Registrable Securities covered by such registration
statement, copies of such registration statement as proposed to be filed, and
thereafter the Company shall furnish to such Holder and underwriter, if any,
such number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such registration
statement (including each preliminary prospectus and any summary prospectus)
and
any other prospectus filed under Rule 424 or Rule 430A under the Securities
Act
and such other documents as such Holder or underwriter may reasonably request
in
order to facilitate the disposition of the Registrable Securities owned by
such
Holder.
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(c) After
the
filing of the registration statement, the Company shall as promptly as
practicable (i) cause the related prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule
424
under the Securities Act, (ii) comply with the provisions of the Securities
Act
with respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by the Holders thereof set forth in such
registration statement or supplement to such prospectus, (iii) notify each
Holder holding Registrable Securities covered by such registration statement
when such registration statement shall have been declared effective by the
SEC,
and (iv) notify each Holder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC or
any
state securities commission, and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered.
(d) The
Company shall (i) register or qualify the Registrable Securities covered by
such
registration statement under such other securities or “blue sky” laws of such
jurisdictions in the United States as any Holder holding such Registrable
Securities reasonably (in light of such Holder’s intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company and do any and all
other
acts and things that may be reasonably necessary or advisable to enable such
Holder to consummate the disposition of the Registrable Securities owned by
such
Holder in accordance with the intended methods of disposition; provided
that the Company shall not be required to (A) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but
for
this Section 2.05(d), (B) subject itself to taxation in any such jurisdiction
or
(C) consent to general service of process in any such jurisdiction.
(e) The
Company shall as promptly as practicable notify each Holder holding Registrable
Securities covered by a registration statement of the occurrence of an event
or
other circumstance requiring the preparation of a supplement or amendment to
the
related prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement
of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and promptly prepare
and make available to each such Holder and file with the SEC any such supplement
or amendment.
(f) The
Board
of Directors of the Company shall have the right to select the underwriter
or
underwriters in connection with any public offering described in Section 2.02
hereof. In connection with any public offering of Registrable
Securities pursuant to Section 2.01 hereof that is to be underwritten, the
Holders owning at least 51% of the Registrable Securities of the Registering
Holders to be registered in such offering shall select the underwriter or
underwriters (which underwriter(s) shall be reasonably acceptable to the
Company, with confirmation of such acceptability not to be unreasonably
conditioned, withheld or delayed). In connection with any public
offering contemplated by this Article 2 that is to be underwritten, the Company
shall enter into customary agreements (including an underwriting agreement
in
customary form, which shall include customary representations, warranties,
covenants, indemnification provisions and “lock-up”/holdback provisions of the
Company in favor of the underwriters, provided that any obligations of Holders
shall be consistent with the provisions in this Agreement), and take all such
reasonable other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities in any such public
offering, including (if necessary) the engagement of a “qualified independent
underwriter” in connection with the qualification of the underwriting
arrangements with the NASD. Each Holder participating in such
underwriting shall also enter into such agreement, provided that the
terms of any such agreement are consistent with this Agreement and
provided that the scope of the indemnity from Holders in favor of the
underwriters and the Company contained in such agreement shall not be more
extensive in any material respect than the comparable provisions in this
Agreement.
9
(g) Upon
execution of customary confidentiality agreements in form and substance
reasonably satisfactory to the Company, the Company shall make available for
inspection by any Holder and any underwriter participating in any disposition
pursuant to a registration statement being filed by the Company pursuant to
this
Article 2 and any attorney, accountant or other professional retained by any
such Holder or underwriter (collectively, the “Inspectors”), all
financial and other records, pertinent corporate documents and properties of
the
Company (collectively, the “Records”) as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and cause the
Company’s officers, directors and employees to supply all information reasonably
requested by any Inspectors in connection with such registration
statement. Records that the Company determines, in good faith, to be
confidential and that it notifies the Inspectors are confidential shall not
be
disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such registration
statement or (ii) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction or is otherwise required
by law.
(h) In
connection with each such registration for an underwritten public offering,
the
Company shall cause to be furnished to each Holder and underwriter participating
therein a signed counterpart, addressed to such Persons, of (i) opinions of
counsel to the Company and (ii) “comfort letters” from the Company’s independent
public accountants, each in customary form and covering such matters of the
kind
customarily covered by opinions of counsel or comfort letters in connection
with
consummation of similar transactions.
(i) The
Company shall otherwise comply with all applicable rules and regulations of
the
SEC, and make available to its security holders, as soon as reasonably
practicable, an earnings statement or such other document that shall satisfy
the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(j) The
Company may require each Holder with Registrable Securities proposed to be
included in such registration, by written notice given to each such Holder
not
less than 10 days prior to the filing date of such registration statement,
to
promptly furnish in writing to the Company such information regarding such
Holder and its distribution of Registrable Securities as the Company may
reasonably request as being legally required in connection with such
registration. The Company shall file, as promptly as reasonably
practicable, such supplements and/or amendments from time to time to any
registration statement or prospectus as may be requested by a Holder from time
to time in writing to reflect changes in the list of selling securityholders
contained in such registration statement or prospectus.
10
(k) Each
Holder agrees that, upon receipt of any written notice from the Company of
the
occurrence of any event or other circumstance requiring the preparation of
a
supplement or amendment of a prospectus relating to the Registrable Securities
covered by a registration statement that is required to be delivered under
the
Securities Act so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement
of
a material fact or omit to state any material fact required to be stated therein
or to make the statements therein not misleading, such Holder shall (i)
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such Holder’s
receipt of the copies of a supplemented or amended prospectus, and (ii) if
so
directed by the Company, such Holder shall deliver to the Company all copies,
other than any permanent file copies then in such Holder’s possession, of the
most recent prospectus covering such Registrable Securities at the time of
receipt of such notice. If the Company shall give such notice, the
Company shall extend the period during which such registration statement shall
be maintained effective (including the period referred to in Section 2.05(a)
hereof) by the number of days during the period from and including the date
of
the giving of notice pursuant to Section 2.05(e) hereof to the date when the
Company shall make available to such Holder a prospectus supplemented or amended
to conform with the requirements of Section 2.05(e) hereof.
(l) The
Company shall list all Registrable Securities covered by such registration
statement on the principal securities exchange or quotation system on which
the
Common Stock is then listed or traded, and if the Common Stock is not listed
on
any securities exchange, the Company shall use its reasonable best efforts
to
list all such Registrable Securities on any domestic securities
exchange.
(m) In
connection with each such registration for an underwritten public offering
where
the aggregate proceeds (net of underwriting discounts and commissions) from
the
sale of Registrable Securities in such offering are estimated to be in excess
of
$50 million, the Company shall have appropriate officers of the Company (i)
prepare and make presentations at any “road shows” and before analysts and
rating agencies, as the case may be, and (ii) otherwise use their reasonable
efforts to cooperate as requested by underwriters in the offering, marketing
or
selling of the Registrable Securities.
(n) If
requested by a Holder, the Company shall include in any registration statement
or prospectus naming such Holder language to the effect that such Holder’s
participation in such offering does not constitute an endorsement or
recommendation by such Holder or any of its Affiliates of the Company or any
of
the Company’s securities (or the investment quality thereof) or create any
inference that such Holder or any of its Affiliates would necessarily help
the
Company meet any financial or other requirements.
SECTION
2.06. Indemnification
by the Company. The Company agrees to indemnify and hold harmless
each Holder, such Holders’ officers, directors, employees, managers, members,
partners and agents, and each Person, if any, who controls any such Persons
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable expenses of investigation and reasonable
attorneys’ fees and expenses) (collectively, “Damages”) insofar
as such Damages shall have been caused by, based upon, arose out of, resulted
from or related to any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus (or
preliminary prospectus) relating to the Registrable Securities owned by such
Holder (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or any omission or alleged omission to
state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, except insofar as such Damages are caused
by
or related to any such untrue statement or omission or alleged untrue statement
or omission so made based upon information furnished in writing to the Company
by such Holder or on such Holder’s behalf expressly for use
therein.
11
SECTION
2.07. Indemnification
by the Participating Holders. Each Holder with Registrable
Securities included in any registration statement agrees, severally but not
jointly, to indemnify and hold harmless, from and against all Damages, the
Company, its officers, directors and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20
of
the Exchange Act, but only insofar as such Damages shall have been caused by
or
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or prospectus (or preliminary
prospectus) relating to the Registrable Securities owned by such Holder or
(ii)
any omission or alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading,
but
in each case under clause (i) and (ii) of this Section 2.07, only to the extent
such untrue statement or omission (or alleged untrue statement or omission)
was
based upon information furnished in writing to the Company by such Holder or
on
such Holder’s behalf expressly for use in such prospectus (or preliminary
prospectus) or registration statement (or amendment or supplement
thereto). No Holder shall be liable under this Section 2.07 for any
Damages in excess of the net proceeds realized by such Holder in the sale of
Registrable Securities of such Holder to which such Damages relate.
SECTION
2.08. Conduct
of Indemnification Proceedings. If any proceeding (including any
governmental investigation) shall be instituted involving any Person in respect
of which indemnity may be sought pursuant to this Article 2, such Person (an
“Indemnified Party”) shall promptly notify the Person against
whom such indemnity may be sought (the “Indemnifying Party”) in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party,
and
shall assume the payment of all fees and expenses, provided that the
failure of any Indemnified Party so to notify the Indemnifying Party shall
not
relieve the Indemnifying Party of its obligations hereunder except to the extent
that the Indemnifying Party is materially prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the
right to retain its own separate counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party shall have agreed to the retention of such counsel at its
expense or (ii) in the reasonable judgment of such Indemnified Party,
representation of both parties by the same counsel would be inappropriate due
to
actual or potential differing interests between them. The
Indemnifying Party shall not be liable for any settlement of any claim effected
without its written consent, which consent shall not be unreasonably withheld
or
delayed, but if settled with such consent, or if there be a final judgment
for
the plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against all indemnified Damages (to the extent
stated above) by reason of such settlement or judgment. Without the
prior written consent of the Indemnified Party, no Indemnifying Party shall
effect any settlement of any pending or threatened claim in respect of which
any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes
an
unconditional release of such Indemnified Party from all liability arising
out
of such proceeding.
12
SECTION
2.09. Contribution. If
the indemnification provided for in this Article 2 is unavailable to the
Indemnified Parties or insufficient in respect of any Damages (other than by
reason of the exceptions provided herein), then each such Indemnifying Party,
in
lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid
or payable by such Indemnified Party as a result of such Damages, as between
the
Company on the one hand and each such Holder on the other, in such proportion
as
is appropriate to reflect the relative fault of the Company and of each such
Holder in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative fault of the Company
on the one hand and of each such Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact
relates to information supplied by such party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The
Company and the Holders agree that
it would not be just and equitable if contribution pursuant to this Section
2.09
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Party as a result of the Damages referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, 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 Section 2.09,
no Holder shall be required to contribute any amount in excess of the amount
by
which the net proceeds realized by such Holder in the sale of Registrable
Securities of such Holder to which such Damages relate exceeds the amount of
any
Damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Subject to the foregoing and as among the Holders,
each Holder’s obligation to contribute pursuant to this Section 2.09 is several
in the proportion that the proceeds of the offering received by such Holder
bears to the total proceeds of the offering received by all such Holders and
not
joint.
ARTICLE
3
- OTHER PROVISIONS AND MISCELLANEOUS
SECTION
3.01. Rule
144. The Company agrees to cause the conditions of Rule 144(c)
under the Securities Act to be satisfied with respect to the Company at all
times during which any of the Registrable Securities are
outstanding.
SECTION
3.02. Binding
Effect; Assignability; Benefit.
(a) This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors, legal representatives and permitted assigns;
provided that rights granted to any Holder hereunder may only be
assigned in connection with a transfer of Registrable Securities to the assignee
in accordance with the following paragraph; and provided further that
an Initial Investor Holder’s demand registration rights under clause (y) of the
first paragraph of Section 2.01(a) may not be assigned without the Company’s
consent. The Company shall not assign this Agreement, in whole or in
part. Any purported assignment not in accordance with this Agreement
shall be null and void.
13
Each
Holder agrees not to transfer any
portion of its Registrable Securities unless (i) there is then in effect a
registration statement under the Securities Act covering such proposed transfer
or (ii) such transfer is made in accordance with Rule 144 under the Securities
Act or another available exemption from registration under the Securities
Act. In connection with any transfer of Registrable Securities
described in clause (ii) of the preceding sentence, the transferring Holder
may
also assign to the transferee rights and obligations under this Agreement with
respect to any Registrable Securities so transferred, and upon the Company’s
receipt from the assignee a completed and executed Joinder substantially in
the
form of Exhibit A hereto, such assignee will be deemed to also be a Holder
under
this Agreement.
(b) The
Company shall promptly provide to any Holder that, together with its Affiliates,
owns 10% or more of the Registrable Securities (assuming for this purpose that
all Preferred Shares are converted in full, and irrespective of any limitations
on conversion contemplated by the Certificate of Designations of such stock),
upon its request, a copy of the most current listing in the Company’s or its
agents’ possession of the names and addresses of the then-current Holders of
Registrable Securities and the number of Registrable Securities respectively
held by them.
(c) Nothing
in this Agreement, expressed or implied, is intended to confer on any Person
(other than the parties hereto, their respective successors, legal
representatives and permitted assigns, and Indemnified Parties under Sections
2.06, 2.07, 2.08 and 2.09 hereof), any rights or remedies under or by reason
of
this Agreement.
SECTION
3.03. Notices. All
notices, requests and other communications to any party shall be in writing
and
shall be delivered in person, sent by reputable overnight courier service,
or
sent by facsimile transmission,
if
to the
Company, to Universal American Financial Corp., 0 Xxxxxxxxxxxxx Xxxxx, Xxx
Xxxxx, XX 00000-0000; Attention: General Counsel;
Facsimile: (000) 000-0000,
if
to the
Initial Holders, at their respective addresses set forth in Schedule
I,
or,
in
each case, at such other address or fax number as such party may hereafter
specify for the purpose of notices hereunder by written notice to the other
party. All notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior
to
5:00 p.m. in the place of receipt and such day is a Business Day in the place
of
receipt. Otherwise, any such notice, request or communication shall
be deemed not to have been received until the next succeeding Business Day
in
the place of receipt. Any notice, request or other written
communication sent by facsimile transmission shall be confirmed by personal
delivery or by reputable overnight courier, made within 2 Business Days after
the date of such facsimile transmissions.
14
SECTION
3.04. Waiver;
Amendment. Except as otherwise provided herein, no failure or
delay by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
or
the exercise of any other right, power or privilege. No provision of
this Agreement may be waived except by an instrument in writing executed by
the
party against whom the waiver is to be effective. Except as otherwise
provided herein, no provision of this Agreement may be amended or otherwise
modified except by an instrument in writing executed by the Company and Holders
holding more than 51% of the Registrable Securities held by the Holders
(assuming for this purpose that all Preferred Shares and non-voting common
shares of the Company are converted in full, and irrespective of any limitations
on conversion contemplated by the respective Certificates of Amendment to the
Certificate of Incorporation of the Company for such stock); provided,
however, that any amendment or modification of this Agreement that treats a
Holder individually in an inconsistent and adverse manner with respect to all
other Holders shall require the consent of such Holder; provided
further that protections afforded to a Holder and its related Indemnified
Parties pursuant to Sections 2.06, 2.07, 2.08 and 2.09 hereof in respect of
any
antecedent registration may not be adversely modified without the consent of
such Holder; and provided further, that this Agreement may be amended
by the Company solely to add stockholders who receive shares of Common Stock
pursuant to the Merger Agreement as Holders hereunder and who agree to be bound
by all of the terms of this Agreement applicable to a Holder.
SECTION
3.05. Fees
and Expenses. Each party shall pay its own costs and expenses
incurred in connection with the preparation and execution of this Agreement,
or
any amendment or waiver hereof, and (except as otherwise provided herein or
separately agreed in writing) the transactions contemplated hereby and all
matters related hereto. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof or
thereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorneys’ fees in addition to any other available
remedy.
SECTION
3.06. Governing
Law; Jurisdiction; Enforcement; Waiver of Jury Trial.
(a) All
issues and questions concerning the construction, validity, interpretation
and
enforceability of this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
any
choice of law or conflict of law rules or provisions (whether of New York or
any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than New York.
(b) Each
of
the parties hereto irrevocably agrees that any legal action or proceeding that
may be based upon, arise out of or relate to this Agreement or the negotiation,
execution or performance hereof, shall be brought and determined exclusively
in
any state courts of New York County of the State of New York, or in the event
(but only in the event) that such court does not have subject matter
jurisdiction over such action or proceeding, in any federal District Court
sitting in New York City. Each of the parties hereto hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the exclusive personal jurisdiction
of the aforesaid courts and agrees that it will not bring any such action in
any
court other than the aforesaid courts. Each of the parties hereto
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with respect
to
this Agreement, (i) any claim that it is not personally subject to the
jurisdiction of the above named courts for any reason other than the failure
to
serve in accordance with this Section, (ii) any claim that it or its property
is
exempt or immune from jurisdiction of any such court or from any legal process
commenced in such courts (whether through service of notice, attachment prior
to
judgment, attachment in aid of execution of judgment, execution of judgment
or
otherwise) and (iii) to the fullest extent permitted by the applicable law,
any
claim that (A) the suit, action or proceeding in such court is brought in an
inconvenient forum, (B) the venue of such suit, action or proceeding is improper
or (C) this Agreement, or the subject mater hereof, may not be enforced in
or by
such courts. Each of the parties hereto irrevocably consents to
process being served by any party to this Agreement in any legal action or
proceeding by delivery of a copy thereof in accordance with the provisions
of
Section 3.03 without prejudice to the right of any party to serve process
pursuant to applicable laws. The consents to jurisdiction set forth
in this paragraph shall not constitute general consents to service of process
in
the State of New York and shall have no effect for any purpose except as
provided in this paragraph and shall not be deemed to confer rights on any
Person other than the parties hereto.
15
(c) The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement (including in the courts of New York County of the State
of
New York or in the United States District Court for the Southern District of
New
York), without bond or other security being required, this being in addition
to
any other remedy to which they are entitled at law or in equity.
(d) Each
of
the parties hereto hereby irrevocably waives any and all rights to trial by
jury
in any legal proceeding arising out of or related to this
Agreement.
SECTION
3.07. Cumulative
Remedies. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall
be
cumulative and not alternative, and the exercise or beginning of the exercise
of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such rights, powers or remedies by such party.
SECTION
3.08. Entire
Agreement. This Agreement constitutes the entire agreement and
understanding among the parties hereto in respect of the subject matter hereof
and supersede all prior and contemporaneous agreements and understandings,
both
oral and written, among the parties hereto, or between any of them, with respect
to the subject matter hereof (including the registration rights granted by
the
Company under that certain agreement dated as of July 30, 1999).
SECTION
3.09. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby
be
consummated as originally contemplated to the fullest extent
possible.
16
SECTION
3.10. Counterparts;
Effectiveness. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION
3.11. Drafting. The
parties hereto have participated jointly in the negotiation and drafting of
this
Agreement and, in the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as jointly drafted by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provision of this
Agreement.
SECTION
3.12. Nature
of Holder’s Obligations. The obligations of each Holder under
this Agreement are several and not joint with the obligations of any other
Holder, and no Holder shall be responsible in any way for the performance of
the
obligations of any other Holder under this Agreement. Nothing
contained herein, and no action taken by any Holder pursuant hereto or in
connection herewith, shall be deemed to constitute the Holders as a partnership,
a joint venture or any other kind of entity, or create a presumption that the
Holders are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by this
Agreement.
[signature
pages follow]
17
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
UNIVERSAL
AMERICAN FINANCIAL CORP.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx | |
Name: Xxxxxxx X. Xxxxxxx | |||
Title: CEO | |||
INITIAL HOLDERS: | |||
CAPITAL
Z FINANCIAL SERVICES FUND II, L.P.
|
|||
By: Capital Z Partners, L.P., its General Partner | |||
By:
Capital Z Partners, Ltd., its General Partner
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx | |
Name: Xxxxx Xxxxxx | |||
Title: General Counsel | |||
CAPITAL
Z FINANCIAL SERVICES PRIVATE FUND II, L.P.
|
|||
By: CAPITAL Z PARTNERS, L.P., its General Partner | |||
By:
CAPITAL Z PARTNERS, LTD., its General Partner
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx | |
Name: Xxxxx Xxxxxx | |||
Title: General Counsel | |||
UNION
SQUARE UNIVERSAL PARTNERS, L.P.
|
|||
By: UNION SQUARE UNIVERSAL GP, LLC, its General Partner | |||
|
By:
|
/s/ Xxxx Xxxxxxxx | |
Name: Xxxx Xxxxxxxx | |||
Title: Authorized Signatory | |||
XXX-UNIVERSAL
HOLDINGS, LLC
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
Name: Xxxxxx X. Xxxxxxx | |||
Title: CFO | |||
PERRY
PARTNERS, L.P.,
|
|||
By: PERRY CORP., its General Partner | |||
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
Name: Xxxxxxx X. Xxxx | |||
Title: General Counsel |
18
PERRY
PARTNERS INTERNATIONAL, INC.
|
|||
By: PERRY CORP., its Investment Manager | |||
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
Name: Xxxxxxx X. Xxxx | |||
Title: General Counsel |
PERRY
COMMITMENT FUND, L.P.,
|
|||
By: PERRY COMMITMENT ASSOCIATES, LLC, its General Partner, | |||
By: PERRY CORP., its Managing Member | |||
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
Name: Xxxxxxx X. Xxxx | |||
Title: General Counsel |
PERRY
COMMITMENT MASTER FUND, L.P.,
|
|||
By: PERRY COMMITMENT ASSOCIATES, LLC, its General Partner, | |||
By: PERRY CORP., its Managing Member | |||
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
Name: Xxxxxxx X. Xxxx | |||
Title: General Counsel | |||
WELSH,
CARSON, XXXXXXXX & XXXXX, IX, L.P.,
|
|||
By: WCAS X ASSOCIATES, LLC, its General Partner | |||
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
Name: Xxxx X. Xxxxxxx | |||
Title: Managing Member | |||
WELSH,
CARSON, XXXXXXXX & XXXXX, X, L.P.,
|
|||
By: WCAS X ASSOCIATES, LLC, its General Partner | |||
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
Name: Xxxx X. Xxxxxxx | |||
Title: Managing Member | |||
19
SCHEDULE
I
Addresses
for Notices to Initial Holders
If
to a
member of the CapZ/USP Group, to it c/o:
Capital
Z
/ Union Square
000
Xxxx
Xxxxxx Xxxxx, 00xx xxxxx
Xxx
Xxxx,
XX 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxx
Spass/Xxxx Xxxxxx
If
to a
member of the Xxx Group, to it c/o:
Xxx
Equity Partners
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxx
Xxxxxxx/Xxxxxxxx Xxxxxxxx
If
to a
member of the Perry Group, to it c/o:
Perry
Capital
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxxxxx
X. Xxxx
If
to a
member of the WCAS Group, to it c/o:
Welsh,
Carson, Xxxxxxxx & Xxxxx
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000-0000
Telephone
number: (000) 000-0000
Facsimile
number: (000) 000-0000
Attention: Xxxx
X. Xxxxxxx
Xxxxxxx
Xxxxxxx
c/o
Universal American Financial Corp.
0
Xxxxxxxxxxxxx Xxxxx
Xxx
Xxxxx, XX 00000-0000
Facsimile
number: (000) 000-0000
20
EXHIBIT
A
[FORM
OF] JOINDER
[Date]
Universal
American Financial Corp.
0
Xxxxxxxxxxxxx Xxxxx
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Xxxxx, XX 00000-0000
Attention:
General Counsel
Ladies
and Gentlemen:
Reference
is made to the Registration
Rights Agreement, dated as of [Date] (the “Agreement”), with Universal
American Financial Corp. (the “Company”). Capitalized terms used and
not otherwise defined herein are used herein as defined in the
Agreement.
The
undersigned (“Transferee”) hereby:
(i) acknowledges receipt of a copy of the Agreement; (ii) notifies the Company
that, on [Date], Transferee acquired from [insert name of assigning
Holder] (pursuant to a private transfer that was exempt from the
registration requirements under the Securities Act) [describe the
Registrable Securities that were transferred] (the “Transferred
Securities”) and an assignment of such transferor’s rights under the Agreement
with respect and to the Transferred Securities, and the Transferee has assumed
from such transferor the liability for any and all obligations under the
Agreement related to the Transferred Securities; and (iii) agrees to be bound
by
all terms of the Agreement with respect to the Transferred Securities applicable
to a Holder of such Transferred Securities as if the Transferee was an original
signatory to the Agreement.
Notices
to the Transferee for purposes
of the Agreement may be addressed to: [___________], [___________], Attn:
[_______], Fax: [________].
This
document shall be governed by, and
construed in accordance with, the laws of the State of New York, applicable
to
contracts executed in and to be performed entirely within that
State.
[Transferee] | |||
|
[By:]
|
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Name: | |||
[Title:] | |||
cc: [Transferor]
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