Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
January 26, 1996
To the several persons named
at the foot hereof
Ladies and Gentlemen:
This will confirm that (a) with respect to the several individuals and
entities named as Purchasers in the Securities Purchase and Asset Transfer
Agreement dated as of January 26, 1996 (the "Purchase Agreement") among AMCOMP
INCORPORATED, a Delaware corporation (the "Company"), Welsh, Carson, Xxxxxxxx &
Xxxxx VII, L.P., a Delaware limited partnership ("WCAS VII"), Sprout Growth II,
L.P., a Delaware limited partnership ("Sprout"), and the other several
purchasers named in Annex I thereto (WCAS VII, Sprout and such other several
purchasers are hereinafter referred to collectively as the "Purchasers"), in
consideration of (i) the purchase by the Purchasers pursuant to Sections 1.01
and 1.04 of the Purchase Agreement (A) from the Company of 1,400,000 shares of
Series A Convertible Preferred Stock, par value $1 per share ("Series A
Preferred Stock"), of the Company and (B) from the Founders (as defined herein)
of 1,600,000 shares (the "Common Shares") of the Company's Common Stock, $.01
par value per share, and (ii) the possible future purchases by the Purchasers
from the Company pursuant to Article II of the Purchase Agreement of (X) up to
1,000,000 additional shares of Series A Preferred Stock and (Y) up to 1,000,000
shares of 10% Series B Non-Convertible Cumulative Preferred Stock, $1 par value
per share ("Series B Preferred Stock," and collectively with the Series A
Preferred Stock, the "Preferred Stock"), of the Company, and as an inducement to
the Purchasers to consummate the transactions contemplated by the Purchase
Agreement, and (b) with respect to the several stockholders of the Company
listed in Annex II to the Purchase Agreement (collectively, the "Founders"), in
consideration of the entry by them into the Stockholders Agreement, dated as of
the date hereof, among the stockholders of the Company, and as an inducement to
them to consummate the transactions contemplated by the Stockholders Agreement
and the Purchase Agreement, the Company hereby covenants and agrees with each of
you, and with each subsequent holder of Restricted Stock (as such term is
defined herein), and with each holder of Founders Stock (as hereinafter defined)
as follows:
1. CERTAIN DEFINITIONS. As used herein, the following terms shall have
the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock, $.01 par value per share, of
the Company, as constituted as of the date of this Agreement, subject to
adjustment pursuant to the provisions of Section 10 hereof.
"CONVERSION STOCK" means the shares of Common Stock issuable upon
conversion of any of the Series A Preferred Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"FOUNDERS STOCK" means the 3,400,000 shares of Common Stock to be
owned by the Founders upon consummation of the transactions contemplated by
Section 1.01 and Section 1.04 of the Purchase Agreement.
"REGISTRATION EXPENSES" means the expenses so described in Section 8
hereof.
"RESTRICTED STOCK" means the shares of capital stock of the Company,
other than Founders Stock, the certificates for which are required to bear
the legend set forth in Section 2 hereof.
"SECURITIES ACT" means the Securities Act of 1933 or any similar
federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" means the expenses so described in Section 8
hereof.
2. RESTRICTIVE LEGEND. Each certificate representing the Common Shares,
each certificate representing the Preferred Stock, each certificate representing
the Founders Stock, each certificate representing the Conversion Stock and each
certificate issued upon exchange, adjustment or transfer thereof, other than in
a public sale or as otherwise permitted by the last paragraph of Section 3
hereof, shall be stamped or otherwise imprinted with a legend substantially in
the following form:
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"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE
BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE."
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of any
Restricted Stock or Founders Stock, as the case may be (other than under the
circumstances described in Sections 4, 5 or 6 hereof), the holder thereof shall
give written notice to the Company of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by the Company, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Company (it being agreed that Reboul, MacMurray,
Xxxxxx, Xxxxxxx & Kristol is and shall be satisfactory) to the effect that the
proposed transfer of the Restricted Stock or Founders Stock, as the case may be,
may be effected without registration under the Securities Act, whereupon the
holder of such Restricted Stock or Founders Stock, as the case may be, shall be
entitled to transfer such Restricted Stock or Founders Stock, as the case may
be, in accordance with the terms of its notice. Each certificate for Restricted
Stock or Founders Stock, as the case may be, transferred as above provided shall
bear the legend set forth in Section 2, unless (i) such transfer is in
accordance with the provisions of Rule 144 (or any other rule permitting public
sale without registration under the Securities Act) or (ii) the opinion of
counsel referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act.
The foregoing restrictions on transferability of Restricted Stock and
Founders Stock shall terminate as to any particular shares of Restricted Stock
or Founders Stock when such shares shall have been effectively registered under
the Securities Act and sold or otherwise disposed of in accordance with the
intended method of disposition by the seller or sellers thereof set forth in the
registration statement concerning such shares. Whenever a holder of Restricted
Stock or Founders Stock is able to demonstrate to the Company (and its counsel)
that the provisions of Rule 144(k) of the Securities Act are available to such
holder without limitation, such holder of Restricted Stock or Founders Stock
shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth in Section 2.
4. REQUIRED REGISTRATION.
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(a) Subject to the provisions of paragraph (e) below, following the
expiration of thirty (30) months after the Initial Closing Date, or, if earlier,
the date on which the Company completes an Initial Public Offering (as defined
in the Purchase Agreement), at any time the holders of Restricted Stock
constituting at least a majority of the Restricted Stock outstanding at such
time may request the Company to register under the Securities Act all or any
portion of the Restricted Stock held by such requesting holder or holders for
sale in the manner specified in such notice PROVIDED, HOWEVER, that the only
securities which the Company shall be required to register pursuant hereto shall
be shares of Common Stock; PROVIDED, FURTHER, HOWEVER, that in any such case the
reasonably anticipated aggregate price to the public of the shares to be so
registered shall not be less than $10,000,000. For the purposes of calculating
the holdings of outstanding Restricted Stock by holders of Preferred Stock for
purposes of this Section 4(a) and Section 13(d), (i) holders of Series A
Preferred Stock shall be treated as the holders of the number of shares of
Conversion Stock then issuable upon conversion of such shares and (ii) Series B
Preferred Stock shall not be counted.
(b) Promptly following receipt of any notice under this Section 4, the
Company shall notify any holders of Restricted Stock from whom notice has not
been received and any holders of Founders Stock, and shall use its best efforts
to register under the Securities Act, for public sale in accordance with the
method of disposition specified in such notice from such requesting holders, the
number of shares of Restricted Stock specified in such notice (and in any
notices received from other such holders of Restricted Stock and holders of
Founders Stock, as the case may be, within 20 days after their receipt of such
notice from the Company); PROVIDED, HOWEVER, that if the proposed method of
disposition specified by the requesting holders shall be an underwritten public
offering, the number of shares of Restricted Stock or Founders Stock or both, as
the case may be, to be included in such an offering may be reduced (first, PRO
RATA among the requesting holders of Founders Stock based on the number of
shares of Founders Stock so requested to be registered and second, PRO RATA
among the requesting holders of Restricted Stock based on the number of shares
of Restricted Stock so requested to be registered) if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the Restricted Stock to be sold. If such method of
disposition shall be an underwritten public offering, the Company may designate
the managing underwriter of such offering, subject to the approval of the
selling holders of a majority of the Restricted Stock included in the offering,
which approval shall not be unreasonably withheld.
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Notwithstanding anything to the contrary contained herein, the obligation of the
Company under this Section 4 shall be deemed satisfied only when a registration
statement covering all shares of Restricted Stock specified in notices received
as aforesaid, for sale in accordance with the method of disposition specified by
the requesting holder, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto; PROVIDED, HOWEVER, that if such notice is
given and such a registration statement shall have been filed under the
Securities Act and the registration is thereafter terminated for any reason
other than a determination by the Company not to proceed with the same, then,
unless the requesting holders shall pay all Registration Expenses (as defined
herein) in connection therewith, such attempted registration shall count as a
required registration pursuant to this Section 4 by the holders of Restricted
Stock, requesting the same for purposes of paragraph (e) below, in which event,
the Company will permit such parties an additional registration pursuant to this
Section 4, in which all Registration Expenses (as well as all Selling Expenses)
will be paid by the requesting holders.
(c) In the event that the Board of Directors of the Company determines in
good faith that the filing of a registration statement pursuant hereto would be
detrimental to the Company, the Board of Directors may defer such filing for a
period not to exceed sixty (60) days. The Board of Directors may not effect more
than one such deferral during any twelve month period. The Board of Directors
agrees to promptly notify all holders of Restricted Stock of any such deferral,
and shall provide to such holders a reasonably complete explanation therefor.
(d) The Company shall be entitled to include in any registration statement
referred to in this Section 4, for sale in accordance with the method of
disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except to the extent that, in the
opinion of the managing underwriter (if such method of disposition shall be an
underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock to be sold. Except as provided in this
paragraph (d), the Company will not effect any other registration of its Common
Stock, whether for its own account or that of other holders, from the date of
receipt of a notice from requesting holders pursuant to this Section 4 until the
completion of the period of distribution of the registration contemplated
thereby.
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(e) Notwithstanding anything to the contrary contained herein, the Company
shall be obligated to register Restricted Stock pursuant to this Section 4 on
two occasions only.
5. FORM S-3 REGISTRATION.
(a) If the Company shall receive from any holder or holders of
Restricted Stock or Founders Stock, a written request or requests that the
Company effect a registration on Form S-3 and any related qualification or
compliance with respect to Restricted Stock or Founders Stock, as the case may
be, owned by such holder or holders, the reasonably anticipated aggregate price
to the public of which would exceed $1,500,000, the Company will:
(i) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other holders of Restricted
Stock and Founders Stock; and
(ii) as soon as is reasonably practicable, use its best efforts to
effect such registration (including, without limitation, the execution of
an undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the
Securities Act and any other government requirements or regulations) as may
be so requested and as would permit or facilitate the sale and distribution
of all or such portion of such holder's or holders' Restricted Stock or
Founders Stock, as the case may be, as are specified in such request,
together with all or such portion of the Restricted Stock or Founders Stock
of any holder or holders joining in such request as are specified in a
written request given within thirty (30) days after receipt of such written
notice from the Company, PROVIDED, HOWEVER that the Company shall not be
obligated to effect any such registration, qualification or compliance
pursuant to this Section 5(a) (A) more than once in any 180-day period, or
(B) if the Company is not entitled to use Form S-3, and FURTHER PROVIDED,
HOWEVER, that the only securities which the Company shall be required to
register pursuant hereto shall be shares of Common Stock. Subject to the
foregoing, the Company shall file a registration statement covering the
Restricted Stock and Founders Stock so requested to be registered as soon
as is reasonably practicable after receipt of the request or requests of
the holders of the Restricted Stock and Founders Stock, as the case may be.
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(b) Registrations effected pursuant to this Section 5 shall not be
counted as requests for registration pursuant to Section 4.
6. INCIDENTAL REGISTRATION. If the Company at any time (other than
pursuant to Section 4 or 5 hereof) proposes to register any of its Common Stock
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Form S-4 or S-8 or another form not available for
registering the Restricted Stock for sale to the public), it will give written
notice at such time to all holders of outstanding Restricted Stock and Founders
Stock of its intention to do so. Upon the written request of any such holder,
given within 30 days after receipt of any such notice by the Company, to
register any of its Restricted Stock or Founders Stock or both, as the case may
be, (which request shall state the intended method of disposition thereof), the
Company will use its best efforts to cause the Restricted Stock or Founders
Stock or both, as the case may be, as to which registration shall have been so
requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder (in accordance with its
written request) of such Restricted Stock or Founders Stock, as the case may be,
so registered; PROVIDED that nothing herein shall prevent the Company from
abandoning or delaying such registration at any time. In the event that any
registration pursuant to this Section 6 shall be, in whole or in part, an
underwritten public offering of Common Stock, any request by a holder pursuant
to this Section 6 to register Restricted Stock or Founders Stock, as the case
may be, shall specify that either (i) such Restricted Stock or Founders Stock,
as the case may be, is to be included in the underwriting on the same terms and
conditions as the shares of Common Stock otherwise being sold through
underwriters in connection with such registration or (ii) such Restricted Stock
or Founders Stock, as the case may be, is to be sold in the open market without
any underwriting, on terms and conditions comparable to those normally
applicable to offerings of common stock in reasonably similar circumstances. The
number of shares of Restricted Stock or Founders Stock or both, as the case may
be, to be included in an underwriting in accordance with clause (i) above may be
reduced PRO RATA among the requesting holders of Restricted Stock or Founders
Stock, as applicable, based upon the number of shares of Restricted Stock or
Founders Stock so requested to be registered, if and to the extent that the
managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold by the Company therein;
PROVIDED, HOWEVER, that such number of shares of
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Restricted Stock or Founders Stock or both, as the case may be, shall not be
reduced if any shares are to be included in such underwriting for the account of
any person other than the Company.
Notwithstanding anything to the contrary contained in this Section 6,
in the event that there is a firm commitment underwritten public offering of
securities of the Company pursuant to a registration covering Restricted Stock
or Founders Stock or both, as the case may be, and a holder of Restricted Stock
or Founders Stock, as the case may be, does not elect to sell his Restricted
Stock or Founders Stock, as the case may be, to the underwriters of the
Company's securities in connection with such offering, such holder shall refrain
from selling such Restricted Stock or Founders Stock, as the case may be, so
registered pursuant to this Section 6 during the period of distribution of the
Company's securities by such underwriters and the period in which the
underwriting syndicate participates in the after market; PROVIDED, HOWEVER, that
such holder shall, in any event, be entitled to sell its Restricted Stock or
Founders Stock, as the case may be, commencing on the 90th day after the
effective date of such registration statement or, if later, on such date (but in
no event later than the 180th day after such effective date) as contractual
"lock-up" restrictions imposed by the underwriters shall expire or be released.
7. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Section 4, 5 or 6 hereof to use its best efforts to effect the
registration of any of the Restricted Stock or Founders Stock or both, as the
case may be, under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement (which, in the case of an underwritten public
offering pursuant to Section 4 hereof, shall be on Form S-1 or another form
of general applicability satisfactory to the managing underwriter selected
as therein provided) with respect to such securities and use its best
efforts to cause such registration statement to become and remain effective
for the period of the distribution contemplated thereby (determined as
hereinafter provided);
(b) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration
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statement effective for the period specified in paragraph (a) above and as
comply with the provisions of the Securities Act with respect to the
disposition of all Restricted Stock or Founders Stock or both, as the case
may be, covered by such registration statement in accordance with the
sellers' intended method of disposition set forth in such registration
statement for such period;
(c) furnish to each seller and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably
request in order to facilitate the public sale or other disposition of the
Restricted Stock or Founders Stock or both, as the case may be, covered by
such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
or Founders Stock or both, as the case may be, covered by such registration
statement under the securities or blue sky laws of such jurisdictions as
the sellers of Restricted Stock or Founders Stock or both, as the case may
be, or, in the case of an underwritten public offering, the managing
underwriter, shall reasonably request (provided that the Company will not
be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph
(d), (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement
and each underwriter, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing (following which notification the sellers agree
to discontinue sales of their Restricted Stock or Founders Stock covered by
such Registration Statement until such misstatement or omission shall have
been remedied);
(f) use all reasonable efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted Stock or
Founders Stock or both, as the case may be, is delivered to the
underwriters for sale
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pursuant to such registration: (i) an opinion of counsel representing the
Company for the purposes of such registration, addressed to the
underwriters and to such seller and dated such date, stating that such
registration statement has become effective under the Securities Act and
that (A) to the best knowledge of such counsel, no stop order suspending
the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Securities Act, (B) the registration statement, the related prospectus, and
each amendment or supplement thereof, comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements, the notes
thereto, and the financial schedules and other financial and statistical
data contained therein) and (C) to such other effects as may reasonably be
requested by counsel for the underwriters or by such seller or its counsel
and which are customary in underwritings of the type being undertaken, and
(ii) a letter dated such date from the independent public accountants
retained by the Company, addressed to the underwriters, stating that they
are independent public accountants within the meaning of the Securities Act
and that, in the opinion of such accountants, the financial statements of
the Company included in the registration statement or the prospectus, or
any amendment or supplement thereof, comply as to form in all material
respects with the applicable accounting requirements of the Securities Act,
and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business
days prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as such underwriters or seller
may reasonably request; and
(g) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement,
and any attorney, accountant or other agent retained by such seller or
underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement and permit such seller, attorney, accountant or
agent to participate in the preparation of such registration statement.
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For purposes of paragraphs (a) and (b) above and of Section 4(c) hereof, the
period of distribution of Restricted Stock or Founders Stock or both, as the
case may be, in a firm commitment underwritten public offering shall be deemed
to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted Stock
or Founders Stock or both, as the case may be, in any other registration shall
be deemed to extend until the earlier of the sale of all Restricted Stock or
Founders Stock or both, as the case may be, covered thereby or six months after
the effective date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock and Founders Stock, if applicable, will furnish to the Company
in writing such information with respect to themselves and the proposed
distribution by them as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws.
In connection with each registration pursuant to Sections 4, 5 and 6
hereof covering an underwritten public offering, the Company agrees to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature, PROVIDED, HOWEVER, that
such agreement shall not contain any such provision applicable to the Company
which is inconsistent with the provisions hereof and PROVIDED, FURTHER, HOWEVER,
that the time and place of the closing under said agreement shall be as mutually
agreed upon among the Company, such managing underwriter and the selling holders
of Restricted Stock and Founders Stock, if applicable.
8. EXPENSES. All expenses incurred by the Company in complying with
Sections 4, 5 and 6 hereof, including without limitation all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars and fees and expenses of one counsel for the sellers of Restricted
Stock and the sellers of Founders Stock (or, if there shall be no sellers of
Restricted Stock, one counsel for the sellers of Founders Stock), but excluding
any Selling Expenses, are herein called "Registration Expenses". All
underwriting discounts and selling commissions applicable to the sale of
Restricted Stock or Founders Stock or both, as the case may be, are herein
called "Selling Expenses".
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The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 4, 5 or 6 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to Section
4, 5 or 6 hereof shall be borne by the participating sellers in proportion to
the number of shares sold by each, or by such persons other than the Company
(except to the extent the Company shall be a seller) as they may agree.
9. INDEMNIFICATION. In the event of a registration of any of the
Restricted Stock or Founders Stock or both, as the case may be, under the
Securities Act pursuant to Section 4, 5 or 6 hereof, the Company will indemnify
and hold harmless each seller of such Restricted Stock or Founders Stock, as the
case may be, thereunder and each underwriter of Restricted Stock or Founders
Stock or both, as the case may be, thereunder and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such seller or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such Restricted Stock or Founders Stock
or both, as the case may be, was registered under the Securities Act pursuant to
Section 4, 5 or 6, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each such seller, each such underwriter and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such seller, such underwriter or such controlling person in writing
specifically for use in such registration statement or prospectus.
In the event of a registration of any of the Restricted Stock or
Founders Stock or both, as the case may be, under the Securities Act pursuant to
Section 4, 5 or 6 hereof, each seller of such Restricted Stock or Founders
Stock, as the case may be, thereunder, severally and not jointly, will indemnify
and hold
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harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer or director or underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
or Founders Stock or both, as the case may be, was registered under the
Securities Act pursuant to Section 4, 5 or 6, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in such registration statement or prospectus; PROVIDED,
FURTHER, HOWEVER, that the liability of each seller hereunder shall be limited
to the proceeds (net of underwriting discounts and commissions) received by such
seller from the sale of Restricted Stock or Founders Stock, as the case may be,
covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 9. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such indemnified
party, and,
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after notice from the indemnifying party to such indemnified party of its
election so to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section 9 for any legal
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation and of liaison with
counsel so selected; PROVIDED, HOWEVER, that, if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party, or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the
right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of
this Section 9 is unavailable or insufficient to hold harmless an indemnified
party under such paragraphs in respect of any losses, claims, damages or
liabilities or actions in respect thereof referred to therein, then each
indemnifying party shall in lieu of indemnifying such indemnified party
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the underwriters and the sellers of
-14-
such Restricted Stock or Founders Stock, as the case may be, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any notice under the third
paragraph of this Section 9. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the Company, on the one hand,
or the underwriters and the sellers of such Restricted Stock or Founders Stock,
as the case may be, on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each of you agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by PRO RATA allocation (even if all of the sellers of such Restricted Stock or
Founders Stock, as the case may be, were treated as one entity for such purpose)
or by any other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph, the sellers of such
Restricted Stock or Founders Stock, as the case may be, shall not be required to
contribute any amount in excess of the amount, if any, by which the total price
at which the Common Stock sold by each of them was offered to the public exceeds
the amount of any damages which they would have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission. No person
guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of
the Securities Act), shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation.
The indemnification of underwriters provided for in this Section 9
shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In that event the indemnification of
the sellers of Restricted Stock or Founders Stock or both, as the case may be,
in such underwriting shall at the sellers' request be modified to conform to
such terms and conditions.
10. CHANGES IN COMMON STOCK. If, and as often as, there are any changes in
the Common Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other
-15-
means, appropriate adjustment shall be made in the provisions hereof, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Common Stock as so changed.
11. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation or By-laws of the
Company, or any provision of any indenture, agreement or other instrument
to which it or any of its properties or assets is bound, or conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to
considerations of public policy in the case of the indemnification
provisions hereof.
12. RULE 144 REPORTING. The Company agrees with you as follows:
(a) The Company shall make and keep public information available, as
those terms are understood and defined in Rule 144(c)(1) or (c)(2),
whichever is applicable, under the Securities Act, at all times from and
after the date it is first required to do so.
(b) The Company shall file with the Commission in a timely manner
all reports and other documents as the Commission may prescribe under
Section 13(a) or 15(d) of the Exchange Act at any time after the Company
has become subject to such reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of Restricted Stock
forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from
and after
-16-
the date it first becomes subject to such reporting requirements) and of
the Securities Act and the Exchange Act (at any time from and after it has
become subject to such reporting requirements), (ii) a copy of the most
recent annual or quarterly report of the Company, and (iii) such other
reports and documents so filed as a holder may reasonably request to avail
itself of any rule or regulation of the Commission allowing a holder of
Restricted Stock to sell any such securities without registration.
13. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. Without limiting the generality of the foregoing, the
registration rights conferred herein on the holders of Restricted Stock
shall inure to the benefit of any and all subsequent holders from time to
time of the Restricted Stock for so long as the certificates representing
the Restricted Stock shall be required to bear the legend specified in
Section 2 hereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first class registered
mail, postage prepaid, addressed as follows:
if to the Company, to it at
000 X.X. Xxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
with a copy to
Olshan, Grundman, Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
if to any holder of Restricted Stock, to such holders at the address
as set forth under such holder's name in Annex I to the Purchase Agreement;
-17-
if to any Founder, to him at his address as set forth in Annex II to
the Purchase Agreement;
if to any subsequent holder of Restricted Stock or Founders Stock, to
such holder at such address as may have been furnished to the Company in
writing by such holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Restricted
Stock or Founders Stock) or to the holders of Restricted Stock or Founders
Stock (in the case of the Company).
(c) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
(d) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof. This Agreement may not be
modified or amended except in writing signed by the Company and the holders
of not less than 66-2/3% of each of the Restricted Stock and Founders Stock
then outstanding, provided that no modification or amendment shall deprive
any holder of Restricted Stock or Founders Stock of any material right
under this Agreement without such holder's consent. The Company will not
grant any registration rights to any other person without the written
consent of the holders of 66-2/3% of the Restricted Stock then outstanding
if such rights could reasonably be expected to conflict with, or be on a
parity with, the rights of holders of Restricted Stock granted under this
Agreement. If pursuant to Section 1.04 of the Purchase Agreement, the
Initial Purchasers instead of the Deferring Purchasers (as such terms are
defined in the Purchase Agreement) purchase the shares of capital stock of
the Company to be purchased on the Deferred Closing Date (as so defined) as
provided therein, then all references to "Purchasers" herein shall be
deemed references to "Initial Purchasers" as so defined.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
-18-
Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this letter (herein
sometimes called "this Agreement") shall be a binding agreement between the
Company and you.
Very truly yours,
AMCOMP INCORPORATED
By /s/Xxx X. Xxxxxxxx, Pres.
----------------------------------------
AGREED TO AND ACCEPTED
as of the date first
above written.
THE FOUNDERS:
/s/Xxx X. Xxxxxxxx
-------------------------------------------
Xxx X. Xxxxxxxx
/s/Xxxx X. Xxxxxx
-------------------------------------------
Xxxx X. Xxxxxx
/s/Xxxx X. Xxxxxx
-------------------------------------------
Xxxx X. Xxxxxx
THE PURCHASERS:
XXXXX XXXXXX, XXXXXXXX & XXXXX VII, L.P.
By WCAS VII Partners, L.P., General Partner
By: /s/Xxxxx Xxxxxxxx
--------------------------------------
WCAS HEALTHCARE PARTNERS, L.P.
By WCAS HP Partners, General Partner
By: /s/Xxxxxxx X. Xxxxx
--------------------------------------
General Partner
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
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By: /s/Xxxx Xxxxxxx
--------------------------------------
Xxxx Xxxxxxx
Its: Attorney-In-Fact
SPROUT CAPITAL VII, L.P.
By DLJ Capital Corporation
Its: Managing General Partner
By: /s/Xxxx Xxxxxxx
--------------------------------------
Xxxx Xxxxxxx
Its: Attorney-In-Fact
DLJ CAPITAL CORPORATION
By:/s/Xxxx Xxxxxxx
----------------------------------------
Title: Attorney-In-Fact
/s/Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx
/s/Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx
/s/Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx
/s/Xxxxxx X. Xxxx
-------------------------------------------
Xxxxxx X. Xxxx
/s/Xxxxxx X. XxXxxxxxx
-------------------------------------------
Xxxxxx X. XxXxxxxxx
/s/Xxxxx Xxxxxxxx
-------------------------------------------
Xxxxx XxxXxxxx
-20-
/s/Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxx X. Xxxxxx
/s/Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/Xxxxxxx X. Xx Xxxxxx
-------------------------------------------
Xxxxxxx X. xx Xxxxxx
DLJSC AS CUSTODIAN FOR
XXXXX X. XXXXXX
By: /s/Illegible
--------------------------------------
HORIZON INVESTMENTS ASSOCIATES I
By: /s/Illegible
--------------------------------------
Managing Partner
SPROUT CAPITAL VII, L.P.
By DLJ Capital Corporation
Its: Managing General Partner
By: /s/Xxxx Xxxxxxx
--------------------------------------
Xxxx Xxxxxxx
Its: Attorney-In-Fact
DLJ CAPITAL CORPORATION
By: /s/Xxxx Xxxxxxx
--------------------------------------
Title: Attorney-In-Fact
-21-
SPROUT CEO FUND, L.P.
By
Its: Managing General Partner
By: /s/Xxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
Its: Attorney-In-Fact
PROFIT SHARING PLAN, DLJSC -
CUSTODIAN F/B/O XXXXX X. XXXXXX
By: /s/Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
Trustee
-22-
