EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of June 3, 1999 (this "Agreement"), by and
between Franklin MicroCap Value Fund ("Franklin") and American Physicians
Service Group Inc. ("AMPH ").
WITNESSETH:
WHEREAS, Franklin is the owner of 242,000 shares of the $.10 par value Common
Stock of AMPH; and
WHEREAS, AMPH is the owner of certain shares of the $.01 par value Common Stock
of Prime Medical Services, Inc. ("PMSI"); and
WHEREAS, Franklin desires to sell, assign, convey, exchange and transfer its
242,000 AMPH shares to AMPH for 121,000 shares of PMSI and AMPH desires to sell,
assign, convey, exchange, and transfer such PMSI shares to Franklin for 242,000
shares of AMPH, on and subject to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the agreements, covenants,
representations and warranties herein contained, the parties hereto, intending
to be legally bound, hereby agree as follows:
Section 1. AMPH hereby agrees to purchase and assume from Franklin, and
Franklin hereby agrees to sell and assign to AMPH, the 242,000 AMPH shares owned
by Franklin in exchange for 121,000 shares of PMSI owned by AMPH.
Section 2. AMPH hereby represents and warrants to Franklin as follows:
(a) AMPH has all requisite power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement by AMPH and the consummation
by AMPH of the transaction contemplated hereby have been duly
authorized by all necessary action on the part of AMPH. This Agreement
has been duly executed and delivered by AMPH and constitutes the legal,
valid and binding obligation of AMPH, enforceable against AMPH in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights and
remedies generally and general principles of equity.
(b) The execution and delivery of this Agreement by AMPH and the
consummation by AMPH of the transactions contemplated hereby and
compliance by AMPH with the provisions hereof will not (i) violate,
conflict with, result in a breach of, or constitute a default under,
the organizational documents of AMPH, or any agreement, note, mortgage,
undertaking or other obligation to which AMPH is a party or to which
its properties or assets are bound; (ii) violate any law, rule or
regulation of any governmental body or regulatory authority, or any
judgment, writ, injunction, decree, order or ruling of any court,
governmental body, regulatory authority or arbitrator binding on AMPH,
or (iii) require any consent, approval, waiver, license or
authorization by any governmental body, regulatory authority or court.
.
(c) AMPH is the legal and record holder of the PMSI shares, free and clear
of any liens, charges or other encumbrances created by, or adverse
claims against, AMPH; and AMPH's transfer, exchange, assignment and
sale of the PMSI shares to Franklin pursuant hereto will convey valid
title to the PMSI shares to Franklin.
(d) The PMSI shares to be received by Franklin from AMPH have been
registered with the SEC under a Form S-3 Registration Statement (No.
333-47621), which Registration Statement is currently effective. A
Prospectus with respect to such Registration Statement has previously
been delivered to Franklin.
Section 3. Franklin hereby represents and warrants to AMPH as follows:
(a) Franklin has all requisite power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement by Franklin and the consummation by Franklin of
the transaction contemplated hereby have been duly authorized by all necessary
action on the part of Franklin. This Agreement has been duly executed and
delivered by Franklin and constitutes the legal, valid and binding obligation of
Franklin, enforceable against Franklin in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the enforcement of creditors' rights and
remedies generally and general principles of equity.
(b) The execution and delivery of this Agreement by Franklin and the
consummation by Franklin of the transactions contemplated hereby and compliance
by Franklin with the provisions hereof will not (i) violate, conflict with,
result in a breach of, or constitute a default under, the organizational
documents of Franklin, or any agreement, note, mortgage, undertaking or other
obligation to which Franklin is a party or to which its properties or assets are
bound; (ii) violate any law, rule or regulation of any governmental body or
regulatory authority, or any judgment, writ, injunction, decree, order or ruling
of any court, governmental body, regulatory authority or arbitrator binding on
Franklin, or (iii) require any consent, approval, waiver, license or
authorization by any governmental body, regulatory authority or court.
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(c) Franklin is the legal and record holder of the AMPH shares, free and clear
of any liens, charges or other encumbrances created by, or adverse claims
against, Franklin; and Franklin's transfer, exchange, assignment and sale of the
AMPH shares to AMPH pursuant hereto will convey valid title to the AMPH shares
to AMPH.
Section 4. The representations, warranties, covenants and agreements of
the parties to this Agreement and the parties' obligations hereunder shall
survive the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
Section 5. Neither party hereto shall disclose the existence, terms or
contents of this Agreement to any third-party without the prior written consent
of the other party hereto, except that a party may make such disclosure (i) to
its officers, directors, employees, attorneys, agents, advisors or
representatives who shall likewise maintain the confidentiality hereof or (ii)
pursuant to any requirement of any law, governmental agency, court order of
stock exchange rule.
Section 6. Franklin and AMPH agree to execute and deliver such further
instruments and documents necessary to effectuate the terms of this Agreement
and take other similar ministerial action at any time as may be reasonably
requested by the parties to evidence the purchase, sale, exchange, and
assignment of the AMPH and PMSI common shares pursuant hereto.
Section 7. This agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the state of California (without
regard to its conflict of laws principles).
Section 8. No party hereto may assign its rights or delegate its
obligations under this Agreement without the prior written consent of the other
party hereto. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Section 9. All notices and other communications hereunder
shall be in writing and shall be deemed given if (a) delivered in person,
(b) transmitted by telecopy (with written confirmation), or (c) sent by an
express courier (with written confirmation) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice): (i) if to Franklin, to: Franklin Resources, Inc., Xxx Xxxxxx Xxxxx,
0xx Xxxxx, Xxxx Xxx, Xxx Xxxxxx 00000; Attention: Xxxxx X. Xxxxxxxx; Telecopy:
(000) 000-0000 and (ii) if to AMPH, to: American Physicians Service Group Inc.;
Attention: Xxxxxxx X. Xxxxx; Telecopy: 000-000-0000.
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Section 10. This Agreement may be amended, supplemented, modified or
changed only by a written agreement making specific reference to this Agreement
executed by Franklin and AMPH, and any provision hereof may be waived, in whole
or in part, only by a written agreement making specific reference to this
Agreement executed by the party making such waiver.
Section 11. The headings of the various sections hereof are for
convenience of reference only and shall not affect the meaning or construction
of any provision hereof.
Section 12. This agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements
and other writings with respect to the subject matter hereof.
Section 13. This Agreement may be executed in counterparts, all of
which, taken together, shall constitute one and the same instrument.
Section 14. In the event any one or more of the provisions of this
Agreement should be held invalid, illegal or unenforceable in any respect in any
jurisdiction, such provision or provisions shall be automatically deemed amended
to the minimum extent necessary to render such provision or provisions valid,
legal and enforceable in such jurisdiction, and the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their authorized representatives as of the day and year
first written above.
FRANKLIN MicroCap Value Fund
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
American Physicians Service Group, Inc.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Finance
