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EXHIBIT 10.43
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of July
9, 1999, is made by and among Philadelphia Consolidated Holding Corp., a
Pennsylvania corporation (the "Company"), and Thomas Jerger, Dean Jerger,
Richard M. Jerger, Jr. and Evelyn W. Jerger (each, a "Holder" and, collectively,
the "Holders").
INTRODUCTION
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A. A Plan and Agreement of Merger, dated as of March 31, 1999,
has been entered into by and among the Company, TJC Acquisition Corp., a
Delaware corporation (the "Merger Sub"), The Jerger Company, Inc., a Florida
corporation ("Jerger") and the Holders other than Evelyn W. Jerger (the "Merger
Agreement").
B. Under the terms of the Merger Agreement, in addition to the
other consideration contemplated thereunder, the Holders will be issued in the
aggregate a certain number (the "Shares") of shares of the Common Stock (as
defined below). The number of Shares issued to each Holder shall be set forth
opposite the respective names of the Holders on Schedule 1 hereto. The issuances
of the Shares to the Holders have not been registered under the Securities Act
(as defined below).
C. In order to induce the Company and the Merger Sub to enter
into the Merger Agreement and to induce the Holders to enter into the Merger
Agreement and to consummate the transactions contemplated thereby, the Holders
and the Company hereby agree that this Agreement shall govern the rights and
obligations of the Holders and the Company with respect to registration under
the Securities Act of the Shares and certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound, the parties hereto agree as follows:
Section 1. Definitions.
The following terms shall have the following meanings
unless the context otherwise indicates:
(a) "Available Registration" means any time during which:
(i) the Resale Registration Statement is effective, current in its disclosure
and available for the registered resale of Shares in a transaction that is not
registered under the Securities Act and (ii) the Company has not exercised any
of its rights hereunder to require the Holders to defer or suspend their
reliance on or other use of any such registration statement or to otherwise
defer or suspend any resales of the Shares.
(b) "Business Day" means any day that is not a Saturday
or Sunday or a day on which federal banking institutions in Philadelphia,
Pennsylvania are authorized or required by law or executive order to close.
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(c) "Closing Date" means the date of the Closing (as
defined in the Merger Agreement).
(d) "Closing Date Anniversary" means the first Business
Day that is on or after the one-year anniversary of the Closing Date.
(e) "Common Stock" means the common stock, no par value,
of the Company.
(f) "Company" has the meaning given in the Preamble
hereto.
(g) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(h) "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any registration form or procedure under the
Securities Act, available for the transactions contemplated herein, that is
subsequently adopted by the SEC and permits inclusion or incorporation of
substantial information by reference to other documents filed, and to be filed
prospectively, by the Company with the SEC.
(i) The terms "Holder" and "Holders" have the meanings
given in the Preamble hereto.
(j) The terms "Indemnified Person" and "Indemnified
Persons" have the meaning given in Section 7 hereof.
(k) "Merger Agreement" has the meaning given in the
Recitals hereto.
(l) "Merger Sub" has the meaning given in the Recitals
hereto.
(m) "Minimum Amount" means the number of Shares that
constitutes greater than 50% of the Shares.
(n) "Nasdaq" means the Nasdaq National Market operated by
The Nasdaq Stock Market, Inc.
(o) "NYSE" means the New York Stock Exchange, Inc.
(p) The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
by the SEC of the effectiveness of such registration statement.
(q) "Registration Expenses" means all expenses incurred
by the Company in complying with Section 2 hereof, including without limitation
all registration and filing fees, printing expense, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or "blue sky" laws (other than those which by law must be paid by the
selling security holders), fees of securities exchanges or the National
Association of Securities Dealers, Inc., fees of transfer agents and registrars,
but excluding any Selling Expenses.
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(r) "Registration Request" means a request by notice to
the Company pursuant to Section 2 hereof for Resale Registration of the Shares.
(s) "Required Effectiveness Period" means a period of
[TWO] years after the Resale Registration Statement first affords an Available
Registration (such period to be extended for an additional number of Business
Days equal to the number of Business Days during such period on which the right
of any applicable Holder to sell Shares was suspended pursuant to Section 3(c)
hereof); provided, however, that the Company may, in its sole discretion,
terminate the Required Effectiveness Period prior to the end of the period set
forth in the first clause of this paragraph if, at any time after the first
anniversary of the date on which the Resale Registration Statement becomes
effective, each Holder of the Shares with respect to which the Resale
Registration Statement has been filed would be permitted, under Rule 144
promulgated under the Securities Act, to sell all of such Holder's Shares during
any three month period.
(t) "Resale Registration" means the registration by the
Company, on the Resale Registration Statement, pursuant to the Securities Act,
of the Shares.
(u) "Resale Registration Statement" means a registration
statement on Form S-3, registering, pursuant to Rule 415 under the Securities
Act, or any successor provision, the resale of Shares by the Holders.
(v) "SEC" means the United States Securities and Exchange
Commission.
(w) "Securities Act" means the Securities Act of 1933, as
amended.
(x) "Selling Expenses" means all expenses related to the
registration or sale of the Shares, other than the Registration Expenses,
including, without limitation, all selling commissions and transfer taxes
applicable to the sale of the Shares and any legal fees and expenses of counsel
or other advisers and agents of the Holders of the Shares being registered.
(y) "Shares" has the meaning given in the Recitals
hereto.
(z) "Trading Day" means any Business Day on whichever of
the NYSE or Nasdaq is, as of such Business Day, the principal market for the
Common Stock, is open for trading.
Section 2. Resale Registration.
(a) At any time after the Closing Date, Holders of the
Minimum Amount may submit a Registration Request for Resale Registration. Such
Registration Request shall state the number of Shares to be registered and the
intended plan of distribution thereof. The Company shall be obligated to file a
Resale Registration Statement pursuant to this Section 2 on only one occasion.
The Company shall be deemed to have satisfied its obligation under this Section
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with respect to a Registration Request for Resale Registration if a Resale
Registration Statement becomes effective under the Securities Act and remains
effective for the applicable Required Effectiveness Period, or if the failure of
the Resale Registration Statement relating to such Registration Request for
Resale Registration to become or remain effective for such Required
Effectiveness Period results primarily from any action or inaction of a Holder
whose Shares are included in such Resale Registration Statement.
(b) Upon receipt of a Registration Request for Resale
Registration, and upon the compliance by the Holders submitting such
Registration Request with Section 6(b) hereof, and subject to the conditions and
limitations of Section 3 hereof, the Company will use its commercially
reasonable efforts to file a Resale Registration Statement as promptly as
practicable. The Company shall give notice of any Registration Request for
Resale Registration to all Holders who did not join therein and such Holders may
become additional parties to such Registration Request for Resale Registration
by giving the Company notice of their joinder within 10 days after the date of
such notice by the Company.
(c) The Company shall use commercially reasonable efforts
to maintain the effectiveness of the Resale Registration Statement for the
Required Effectiveness Period, provided that Rule 415 promulgated under the
Securities Act, or any successor rule promulgated under the Securities Act,
permits an offering on a continuous or delayed basis.
Section 3. Registration Procedures.
(a) The right to a Resale Registration is subject to the
following conditions and limitations:
(i) Any individual Holder joining a Registration
Request may withdraw such Holder's Shares from the Registration Request at any
time prior to the time the registration statement becomes effective, provided
that the Company may ignore a notice of withdrawal made within 24 hours of the
time the registration statement becomes effective. Following such a withdrawal,
the Company shall not take any further action to register the withdrawn Shares,
and shall not be obligated to register any Shares if the number of non-withdrawn
Shares is less than the Minimum Amount. However, except as otherwise provided in
Section 3(b) hereof, a Registration Request, once made, shall count as having
been made for purposes of Section 2(a) hereof, unless it is withdrawn by all
Holders making such request within five days after having been made.
(ii) No Registration Request may be made within
90 days after (i) the effective date of a registration statement filed by the
Company under the Securities Act covering a public offering of its equity
securities or (ii) the date of a prospectus filed by the Company under the
Securities Act in connection with a public offering of its equity securities.
(iii) The Company shall be permitted to use any
registration form available to it for the registration of Shares, and shall not
be obligated to include in the prospectus any information that may be
incorporated by reference or that is not required to be included therein by the
applicable registration form.
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(b) If the Company is required by the provisions of
Section 2 hereof to effect Resale Registration of any Shares, the Company will,
as promptly as practicable:
(i) To the extent required by Section 2, and in
accordance with the provisions thereof, prepare and file with the SEC a
registration statement (which shall be on Form S-3, unless the Company does not
qualify for use of Form S-3 in such registration, in which case such
registration statement shall be on any other available form selected by the
Company) with respect to such Shares and thereafter use commercially reasonable
efforts to cause such registration statement to become effective as promptly as
practicable.
(ii) Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the Required Effectiveness Period or such lesser period
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Shares covered by such registration statement
in accordance with the plan of distribution set forth in such registration
statement.
(iii) Furnish to each Holder who has made the
Registration Request pursuant to which the Company effects the
applicable registration statement such number of conformed copies of the
registration statement and the prospectus included therein (including each
preliminary prospectus) as each such Holder reasonably may request in order to
facilitate the public sale of the Shares covered by such registration statement.
(iv) Upon receipt of such confidentiality
agreements as the Company may reasonably request, make available for inspection
by each seller of Shares and any attorney, accountant or other agent retained by
any such seller, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company officers, directors and
employees to supply all information reasonably requested by any such seller,
attorney, accountant or agent in connection with such registration statement,
that in each case is necessary in order to confirm material disclosures
contained in the registration statement or incorporated therein by reference;
provided, that any such inspection shall occur during normal business hours, and
that no such inspection or request need be allowed if it would present an
unreasonable burden to the Company.
(vii) Give the selling holders of Shares two days
advance notice of its anticipated filing date of the registration statement and
amendments thereto.
(viii) Use commercially reasonable efforts to
cause the Shares covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof to consummate the disposition of such
Shares.
(ix) Comply with all applicable rules and
regulations of the SEC.
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(x) Provide a transfer agent for all the Shares
covered by such registration statement not later than the effective date of such
registration statement.
(xi) Permit any holder of Shares covered by such
registration statement, who in the reasonable judgment of such holder might be
deemed to be a controlling person of the Company, to participate through counsel
reasonably acceptable to the Company in the preparation of such registration
statement and, if specifically requested by such counsel, in discussions between
the Company and the SEC with respect to such registration statement, and to
include in such registration statement material, furnished to the Company in
writing, which in the written opinion of such counsel is necessary to include in
order to avoid potential liability for such holder.
(xii) Use commercially reasonable efforts to
cause all such Shares covered by such registration statement to be listed or
quoted on the principal national securities exchange (including Nasdaq) on which
similar securities issued by the Company are then listed or quoted, if the
listing or quoting of such Shares is then permitted under the rules of such
exchange.
(xiii) If there is a stop order relating to or
suspension of the effectiveness of the registration statement, use its
commercially reasonable efforts to have the stop order or suspension of
effectiveness withdrawn as promptly as practicable.
(xiv) Use commercially reasonable efforts to
register or qualify the Shares covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the sellers of Shares
reasonably shall request; provided, however, that the Company shall not for any
such purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process or taxation in any such jurisdiction.
(c) Notwithstanding the foregoing, the Company may delay
filing a registration statement otherwise required to be filed pursuant to this
Agreement, and may withhold efforts to cause a registration statement covering
Shares to become effective, if the Company determines in good faith that such
registration statement might (i) interfere with or affect the negotiation or
completion of any transaction that is being contemplated by the Company (whether
or not a final decision has been made to undertake such transaction) at the time
the right to delay is exercised, or (ii) involve initial or continuing
disclosure obligations that might not be in the best interest of the Company's
stockholders; provided, however, the Company may not delay filing such
registration statement or withhold efforts to cause such registration statement
to become effective for a period of more than one hundred twenty (120) days in
the aggregate. If, after a registration statement becomes effective, the Company
gives notice to the Holders of Shares covered by such registration statement
that the Company considers it appropriate for the registration statement to be
amended or supplemented, the Holders of such Shares shall suspend any further
sales of their Shares until the Company gives notice to such Holders that the
registration statement has been amended or supplemented. The Company agrees with
the Holders that it will use its commercially reasonable efforts to amend or
supplement the registration statement, as required to permit sales of the Shares
covered thereby
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to resume as promptly as is practicable after it has given the notice referred
to in the preceding sentence. In no event will the Company be required to update
the registration statement after the date that its obligation to register Shares
terminates pursuant to Section 5 hereof.
(d) In connection with each registration hereunder, each
seller of Shares shall (i) furnish promptly to the Company in writing such
information with respect to such seller and the proposed distribution by such
seller as reasonably shall be requested by the Company in order to assure
compliance with federal and applicable state securities laws, and (ii) comply
with all applicable rules promulgated by the SEC or any securities exchange
(including Nasdaq).
(e) If any registration statement covering Shares refers
to any Holder by name or otherwise as the holder of any securities of the
Company, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to the Company (such
satisfaction not to be withheld unreasonably), to the effect that such Holder's
holding of Shares is not to be construed as a recommendation by such Holder of
the investment quality of the Shares covered thereby and that such holding does
not imply that such Holder will assist in meeting any future financial
requirements of the Company, or (ii) in the event that such reference to such
Holder by name or otherwise is not in the judgment of the Company, as advised by
counsel, required by the Securities Act or any similar federal statute or any
state "blue sky" or securities law then in force, the deletion of the reference
to such Holder.
Section 4. Expenses. The Company will pay all Registration
Expenses. All Selling Expenses shall be borne by the participating Holders, in
proportion to the number of Shares sold by each unless they otherwise agree
among themselves.
Section 5. Termination of Registration Rights. Notwithstanding
the foregoing provisions, the Company's obligation to register Shares under this
Agreement shall terminate as to any particular Shares (a) when such Shares have
been sold in an offering registered under the Securities Act or in a sale exempt
from registration under the Securities Act, (b) when such Shares shall have been
effectively registered under the Securities Act for the Required Effectiveness
Period, or (c) when a written opinion, to the effect that such Shares may be
sold without registration under the Securities Act or applicable state law and
without restriction as to the quantity and manner of such sales, shall have been
received from counsel for the Company, which counsel is reasonably acceptable to
the owner of such Shares.
Section 6. Indemnification.
(a) In the event of any registration of Shares under the
Securities Act pursuant to this Agreement, the Company will, and hereby does,
indemnify and hold harmless, to the fullest extent permitted by law, the seller
of any Shares covered by such registration statement, its directors and officers
or general and limited partners (and the directors and officers thereof) and
each other person, if any, who controls such seller within the meaning of the
Securities Act (each, individually, an "Indemnified Person" and, collectively,
the "Indemnified Persons"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including fees of counsel and any
amounts paid in any settlement effected with the Company's consent, which
consent shall not be unreasonably withheld) to which such Indemnified Persons
may
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become subject under the Securities Act, common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof), or expenses arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which Shares were registered
under the Securities Act or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, (ii) any untrue statement or alleged untrue statement of a material
fact contained in any final or summary prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the SEC any amendment thereof or supplement thereto), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (iii)
any violation by the Company of any federal or state rule or regulation
applicable to the Company and relating to action required of or inaction by the
Company in connection with any such registration. The Company will reimburse
Indemnified Persons for any reasonable legal or any other expenses reasonably
incurred by any of them in connection with investigating or defending any such
loss, claim, liability, action or proceeding. Notwithstanding the foregoing, the
Company shall not be liable to any Indemnified Person to the extent that any
such loss, claim, damage, liability (or action or proceeding, whether commenced
or threatened, in respect thereof or expense arises out of or is based upon (i)
any untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Indemnified Person, for use in the
preparation of the registration statement or (ii) the failure of any Indemnified
Person to comply with any legal requirement applicable to any Indemnified Person
to deliver a copy of a prospectus or any supplements or amendments thereto after
the Company has made such documents available to such persons in requisite
quantity on a timely basis to permit such delivery, and it is established that
delivery of such prospectus, supplement or amendment would have cured the defect
giving rise to such loss, claim, damage, liability or expense. Such indemnity
and reimbursement of expenses shall remain in full force and effect following
the transfer of Shares by such seller.
(b) The Company, as a condition to including any Shares
in any registration statement filed in accordance with this Agreement, shall
have received an undertaking reasonably satisfactory to it from the prospective
seller of such Shares, to indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 6(a) hereof) the Company and its
directors and officers and each person controlling the Company within the
meaning of the Securities Act and all other prospective sellers and their
directors, officers, general and limited partners and respective controlling
persons with respect to any statement or alleged statement in or omission from
such registration statement, any final or summary prospectus contained therein,
or any amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or its representatives by or on
behalf of such seller for use in the preparation of such registration statement.
Notwithstanding the above, the amount of any losses, claims, damages,
liabilities, or expenses to be paid by any seller of Shares shall not exceed the
amount of proceeds received by such seller of Shares from the sale of such
Shares.
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(c) Promptly after receipt by an Indemnified Person
hereunder of notice of the commencement of any action or proceeding with respect
to which a claim for indemnification may be made pursuant to this Section 6,
such Indemnified Person will, if a claim in respect thereof is to be made
against an indemnifying party, give notice to the latter of the commencement of
such action; provided, however, that the failure of any Indemnified Person to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under this Section 6, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. If any such claim
or action shall be brought against an Indemnified Person, and it shall give
notice to the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the Indemnified Person; and provided
further that the indemnifying party shall not be entitled to so participate or
so assume the defense if, in the Indemnified Person's reasonable judgment, a
conflict of interest between the Indemnified Person and the indemnifying party
exists in respect of such claim. After notice from the indemnifying party to
such Indemnified Person of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the Indemnified Person
under this Section 6 for any legal or other expenses subsequently incurred by
the Indemnified Person in connection with the defense thereof unless the
indemnifying party has failed to assume the defense of such claim or to employ
counsel reasonably satisfactory to such Indemnified Person; and provided
further, that the Indemnified Persons shall have the right to employ one counsel
to represent such Indemnified Persons if, in such Indemnified Persons'
reasonable judgment, a conflict of interest between the Indemnified Persons and
the indemnifying parties exists in respect of such claim, and in that event the
fees and expenses of such separate counsel shall be paid by the indemnifying
party; and provided further, that if, in the reasonable judgment of any of the
Indemnified Persons, a conflict of interest between such Indemnified Person and
any other Indemnified Person exist in respect of such claims, such Indemnified
Person shall be entitled to additional counsel or counsels and the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
or counsels. No Indemnified Person will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimants or plaintiffs to such Indemnified Person of
a release from all liability in respect to such claim or litigation. No
indemnifying party will be liable for any settlement effected without its prior
written consent.
(d) If the indemnification provided for in this Section 6
is unavailable or insufficient to hold harmless an Indemnified Person under
Section 6(a) and Section 6(b) hereof, then each indemnifying party shall
contribute to the amount paid or payable by such Indemnified Person as a result
of the losses, claims, damages or liabilities referred to in Section 6(a) and
Section 6(b) hereof in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and the Indemnified Person on
the other hand in connection with statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault 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 the indemnifying party or the indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
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The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6 were to be determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the first sentence of this Section
6. The amount paid by an Indemnified Person as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this Section 6 shall
be deemed to include any legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any action or
claim (which shall be limited as provided in Section 6(c) hereof if the
indemnifying party has assumed the defense of any such action in accordance with
the provisions thereof which is the subject of this Section 6). 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.
(e) The provisions of this Section 6 shall be in addition
to any other rights to indemnification or contribution which any Indemnified
Person may have pursuant to law or contract and shall remain in full force and
effect following the transfer of the Shares by any such party.
Section 7. Compliance with Rule 144. At the request of any
holder of Shares who proposes to sell Shares in compliance with Rule 144 under
the Securities Act, or any similar Rule, the Company shall forthwith furnish to
such holder a written statement as to its compliance with the filing
requirements of the SEC as set forth in such Rule. In addition, until such time
as the Shares may be sold under Rule 144(k) the Company will make and keep
public information available, as those items are understood and defined in Rule
144 and Rule 144A promulgated under the Securities Act.
Section 8. Miscellaneous
(a) Binding and Benefit. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no party may assign or transfer its rights
or obligations under this Agreement without the prior written consent of the
other parties hereto.
(b) Communications from Holders. If Shares are owned of
record jointly by two or more persons, the Company may rely on any communication
signed by one such person. The Company may ignore communications given by
persons who purport to own Shares beneficially unless such communications are
confirmed by a record owner, and it may ignore any communications from a record
owner that conflict with previously received communications from another person
who is at the relevant time also a record owner of the same Shares.
(c) Amendment and Waiver. Any provision of this Agreement
may be amended and the observance thereof may be waived only with the written
consent of the Company and each of the Holders. Failure of any party to exercise
any right or remedy under this Agreement or otherwise, or delayed by a party in
exercising such right or remedy, will not operate as a waiver thereof.
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(d) Notices. Whenever notice is required to be given to
any person under this Agreement, it shall be in writing and may be given to the
person either personally or by sending a copy thereof by first class or express
mail, postage prepaid, or by courier service, charges prepaid, or by facsimile
transmission, to such person's address (or to such person's facsimile number) as
set forth below. If the notice is sent by mail or courier service, it shall be
deemed to have been given to the person to whom it is sent when deposited in the
United States mail or with a courier service for delivery to that person. If the
notice is sent by facsimile transmission, it shall be deemed to have been given
to the person to whom it is sent when the person sending such notice receives
electronic confirmation of receipt by the person to whom such notice was sent.
If to the Company or the Merger Sub:
Philadelphia Consolidated Holding Corp.
One Bala Plaza, Suite 100
Bala Cynwyd, PA 19004
Attn: James J. Maguire
Telephone: (610) 617-7900
Telecopy: (610) 617-7600
with a copy sent in the
manner provided to:
Wolf, Block, Schorr and Solis-Cohen LLP
Twelfth Floor Packard Building
111 South Fifteenth Street
Philadelphia, Pennsylvania 19102
Attention: Michael M. Sherman, Esquire
Telephone: (215) 977-2236
Telecopy: (215) 977-2334
or, if sent after July 1, 1999:
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street
Philadelphia, PA 19103-2085
Attn: Michael M. Sherman, Esquire
and
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If to any Holder:
c/o
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Attention:
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Telephone: ( )
--- --------
Telecopy: ( )
--- --------
with a copy sent in the
manner provided to:
Fowler, White, Gilleni, Boggs, Villareal and Baker, P.A.
501 E. Kennedy Blvd.
Suite 1700
Tampa, Florida 33602
Attention: David Shobe, Esquire
Telephone: (813) 228-7411
Telecopy: (813) 229-8313
or at such other address as each party furnishes by notice
given in accordance with this section.
(e) Governing Law. This Agreement shall be enforced,
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, notwithstanding any conflicts of laws provisions to the contrary.
(f) Merger. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof,
and there are no representations, promises, warranties or other undertakings
other than those set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings among the parties hereto with respect to the
subject matter hereof.
(g) Gender, Etc. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate.
(h) Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument. If executed in multiple
counterparts, this Agreement shall become binding when two or more counterparts
hereto, individually or taken together, bear the signatures of all of the
parties reflected hereon as the signatories. This Agreement, once executed by a
party, may be delivered to the other party hereto by telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
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(i) Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that any other provision may be invalid or unenforceable in whole or in part for
any reason.
(j) Amendments and Modifications. This Agreement may not
be amended or modified other than by an agreement in writing signed by all of
the parties.
(k) Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on any day that is not a Business Day, then the final day shall be
deemed to be the next day which is a Business Day.
(l) Further Assurances. Each of the parties hereto agrees
to execute and deliver all such other instruments and take all such other action
as any party may reasonably request from time to time, before or after the
Closing Date and without payment of further consideration, in order to
effectuate the transactions provided for herein. The parties shall cooperate
fully with each other and with their respective counsel and accountants in
connection with any steps required to be taken as part of their respective
obligations under this Agreement.
(m) Headings. The headings in the Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first above written.
PHILADELPHIA CONSOLIDATED HOLDING CORP.
By: /s/ Craig P. Keller
---------------------------
Name: Craig P. Keller
Title: V.P.
HOLDERS:
/s/ Thomas Jerger
---------------------------
Thomas Jerger
/s/ Dean Jerger
---------------------------
Dean Jerger
/s/ Richard M. Jerger, Jr.
---------------------------
Richard M. Jerger, Jr.
/s/ Evelyn W. Jerger
---------------------------
Evelyn W. Jerger
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SCHEDULE 1
----------
Name Number
of Holder of Shares
--------- ---------
Thomas J. Jerger 338,404
Dean W. Jerger 338,404
Richard M. Jerger, Jr. 338,404
Evelyn W. Jerger, as trustee of the
Evelyn W. Jerger Revocable Trust
u/a/d 3/23/9215 22,560
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