AMENDMENT NO. 1 TO NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
Exhibit 10.6
AMENDMENT NO. 1 TO
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
NON-COMPETITION AND CONFIDENTIALITY AGREEMENT
THIS AMENDMENT NO. 1 TO NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (the
“Amendment”), dated as of August 17, 2005, is entered into by and between American Risk
Pooling Consultants, Inc., a Michigan corporation (the “Company”) and Xxxxxx X. Xxxx (the
“Stockholder”).
RECITALS
WHEREAS, the Company and Stockholder are parties to that certain Non-Competition and
Confidentiality Agreement dated as of June 14, 2004 (the “Agreement”);
WHEREAS, capitalized terms used herein, unless otherwise herein defined, are used with the
meanings given them in the Agreement;
WHEREAS, this Amendment amends the Agreement to satisfy certain conditions under the Stock
Contribution Agreement dated as of August 17, 2005 by and among Stockholder, First Mercury
Financial Corporation (the “FMFC”), a Delaware corporation, First Mercury Holdings, Inc.
(“Holdings”), a Delaware corporation, FMFC Holdings, LLC, a Delaware limited liability
company, and the other signatories thereto.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises set
forth herein, the parties hereto hereby agree as follows:
1. Amendments. The paragraph defining “Non-Competition Period” in Section 3 of the
Agreement is hereby amended and restated in its entirety, as of the date of this Amendment, to read
as follows:
For purposes hereof, the “Non-Competition Period” shall mean the
period beginning on the Effective Date and ending on the earlier of (i) August 17,
2010 and (ii) the occurrence of a Change of Control or a Public Sale after the date
hereof. For purposes of this Agreement “Change of Control” shall mean (i)
a merger or consolidation of FMFC or Holdings with or into another corporation or
other entity, pursuant to which a Third Party beneficially owns at least a majority
of the voting power of the outstanding equity securities of the surviving
corporation or entity immediately after such merger or consolidation, (ii) the
sale, lease, license, conveyance or transfer of all or substantially all of the
assets of FMFC or Holdings other than to Glencoe or an entity in which a majority
of the voting power is beneficially owned by Glencoe, (iii) any purchase of shares
of capital stock of FMFC or Holdings (either through a negotiated stock purchase or
a tender for such shares) by a Third Party, through one, or a series of related
transactions, the effect of which is that the Third Party beneficially owns at
least a majority of the voting power of FMFC or
Holdings immediately after such purchase, or (iv) any liquidation, dissolution
or winding up of FMFC or Holdings, whether voluntary or
involuntary;
provided, that after such event, the business of FMFC or Holdings is not
owned or operated by Glencoe or by an entity in which a majority of the voting
power is beneficially owned by Glencoe. For purposes of this Agreement, “Third
Party” means a person or entity other than Glencoe or an entity in which a
majority of the voting power is beneficially owned by Glencoe. For purposes of
this Agreement, “Glencoe” means Glencoe Capital, LLC, FMFC Holdings, LLC
and each of their respective affiliates. For the purposes of this agreement,
“Public Sale” shall mean a sale of the stock of Holdings (or any material
subsidiary of Holdings) to the public pursuant to an offering registered under the
Securities Act of 1933, as amended, and any successor statute, the aggregate price
being paid for such stock being at least (i) $75,000,000 or (ii) $65,000,000 if
after completion of such offering Glencoe owns less than a majority of the fully
diluted common stock of Holdings.
2. General Provisions.
(a) Except as expressly amended, modified, agreed, waived, released or settled
herein, including without limitation in the recitals hereto, (i) there are no waivers
or releases hereby of any provisions of the Agreement, (ii) the Agreement shall remain
unchanged and in full force and effect, and (iii) as amended or modified herein, the
Agreement is hereby ratified, approved and confirmed in all respects.
(b) After the date hereof all references in the Agreement to the “Agreement,”
“herein,” “hereof” and the like, shall refer to the Agreement as amended or modified
herein.
(c) This Amendment may be executed in multiple counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same
instrument.
(d) This Amendment shall be governed by and construed under the laws of the State
of Delaware.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the day
and year first above written.
| COMPANY: | ||||||
| American Risk Pooling Consultants, Inc. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| STOCKHOLDER: | ||||||
| /s/ Xxxxxx X. Xxxx | ||||||
| Xxxxxx X. Xxxx | ||||||
