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EXHIBIT 10.91
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of
_________________, 1998 between Insurance Management Solutions Group, Inc., a
Florida corporation (the "Company"), and J. Douglas Branham and Felicia A.
Rivas (including permitted successors and assigns hereunder) (the
"Stockholders") of shares of Common Stock, par value $.01 per share ("Common
Stock"), of the Company.
WHEREAS, on ________________, 1998, the Stockholders, Insurance
Management Solutions, Inc., a subsidiary of the Company, and Colonial
Catastrophe Claims Corporation ("Colonial") entered into a Stock Purchase
Agreement ("Purchase Agreement");
WHEREAS, pursuant to the terms of the Purchase Agreement Insurance
Management Solutions, Inc., a subsidiary of the Company acquired all of the
issued and outstanding capital stock of Colonial;
WHEREAS, as part of the Purchase Agreement consideration, the
Stockholders received or will receive shares of Common Stock; and
WHEREAS, under the Purchase Agreement, it is a condition to the
obligations of the Stockholders and Colonial that the Company execute this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements set forth in this Agreement, the parties agree as
follows:
1. "Piggyback" Registration. Subsequent to its initial public
offering, whenever the Company proposes to file a registration statement
relating to any of its securities under the Securities Act of 1933 (the "1933
Act") for its account or the account of any other stockholder of the Company
(other than a registration statement required to be filed in respect of
employee benefit plans of the Company on Form S-8 or any similar form from time
to time in effect or any registration statement on Form S-4 or similar
successor form), the Company shall, at least twenty-one (21) days (or if such
twenty-one (21) day period is not practicable, then a reasonable shorter period
which shall not be less than seven (7) days) prior to such filing, give written
notice of such proposed filing to the Stockholders, and such notice shall offer
each of the Stockholders the opportunity to register such shares of Common
Stock of the Company received by the Stockholders pursuant to the Purchase
Agreement ("Registrable Securities") as such Stockholder may request, and such
notice shall state the name of the managing underwriter for such registration,
the number of securities to be registered for the account of the Company and
for the account of any stockholder, and the intended method of disposition of
such securities. Upon the written request of a Stockholder, given within five
(5) days after receipt of any such notice of registration from the Company, to
register any shares of Common Stock owned by him or her (which request shall
state the amount of Registrable Securities requested to be registered), the
Company shall include such Registrable Securities in such registration
statement or in a separate registration statement concurrently filed on terms
and conditions comparable to those of the securities offered on behalf of the
Company or for the account of any other stockholder of the Company, unless the
managing underwriter therefor concludes in its reasonable judgment that the
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inclusion of such Registrable Securities in such offering would materially
adversely affect such offering, in which event the number of shares that may be
sold in such offering shall be allocated, first, to the Company (or, if the
offering is being made principally for the account of another person, to such
person), second to the Stockholders pro rata in accordance with their
percentage of shares of Common Stock included in the offering and, third, to
any other third party having registration rights with respect to shares.
Notwithstanding the foregoing, Stockholders shall only be entitled to
participate in one Piggyback registration of a subsequent public offering.
2. Information, Documents, Etc. Upon making a request for registration
pursuant to Section 1, each of the Stockholders shall furnish to the Company
such information regarding his or her holdings and the proposed manner of
distribution thereof as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement. The Company agrees
that it will furnish to each of the Stockholders the number of prospectuses,
offering circulars or other documents, or any amendments or supplements
thereto, incident to any registration, qualification or compliance referred to
in this Agreement as the Stockholders from time to time may reasonably request.
3. Expenses. The Company will bear all expenses of registrations
incident to its performance of or compliance with this Agreement, including,
without limitation, registration and filing fees, exchange listing fees,
printing expenses, fees and expenses of compliance with blue sky or other state
securities law and fees and disbursements of (a) counsel for the Company, (b)
all independent certified public accountants, (c) underwriters, and (d) any and
all other persons retained by the Company; provided, however, the Company will
not pay (i) underwriting discounts and commissions and brokerage commissions
and fees, if any, payable with respect to Registrable Securities sold by a
Stockholder, (ii) filing fees attributable to a Stockholder's Registrable
Securities, (iii) fees and expenses of compliance with blue sky or other state
securities laws that are required by law to be paid directly by a Stockholder,
and (iv) fees and expenses of any counsel and accountants for any Stockholder.
4. Indemnification.
(a) The Company hereby agrees to indemnify and hold harmless each
Stockholder and their agents (including counsel), and agrees to
indemnify each underwriter participating in such offering and sale and
each Person, if any, who controls such underwriter within the meaning
of the 1933 Act, against any losses, claims, damages or liabilities,
joint or several, to which the Stockholders, any agent or any such
underwriter or controlling Person may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
Registrable Securities were registered under the 1933 Act pursuant to
Section 1 or Section 2, 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 or (ii) any violation by
the Company of the 1933 Act or the Securities
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Exchange Act of 1934, as amended (the "1934 Act"), or other federal or
state law applicable to the Company and relating to any action or
inaction required of the Company in connection with such registration,
and will reimburse the Stockholders, each such agent and 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 reliance upon and
in conformity with information pertaining to such Stockholder, such
underwriter or controlling Person, furnished in writing to the Company
by the Stockholder, such underwriter or such controlling Person for
use in such registration statement or prospectus or by a Stockholder's
or such controlling Person's failure to deliver a copy of the
registration statement or prospectus or any amendment or supplement
thereto after being furnished with a sufficient number of copies of
the same by the Company. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the
Stockholders, such underwriter or such controlling Person and shall
survive any transfer by the Stockholders.
(b) If the Stockholders sell Registrable Securities under a
prospectus that is part of a registration statement, then the
Stockholder(s) participating in such offering (the "Participating
Stockholders"), by exercising their registration rights hereunder,
hereby agree, jointly and severally (if applicable), to indemnify and
hold harmless the Company, its agents (including counsel) and each
Person, if any, who controls the Company within the meaning of the
1933 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 1933
Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such agent, officer or director or
underwriter or controlling Person may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Registrable Securities were registered under the 1933 Act, 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, or (ii) any violation by the Participating Stockholders of
the 1933 Act or the 1934 Act, or other federal or state law applicable
to the Participating Stockholders and relating to any action or
inaction required by the Participating Stockholders in connection with
such registration, and will reimburse the Company and each such agent,
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 the Participating Stockholders 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
furnished in writing to the
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Company by the Participating Stockholders specifically for use in such
registration statement or prospectus.
5. Amendments. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the Company and each of the Stockholders.
6. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by an overnight courier service, such as Federal Express, or
by registered or certified mail, return receipt requested, to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) If to the Company:
Insurance Management Solutions Group, Inc.
360 Central Avenue
St. Petersburg, Florida 33701
Attention: C. Anthony Sexton, Esq.
Telephone: (813) 823-4000, ext. 4894
Telecopy: (813) 823-6518
(b) If to the Stockholders:
J. Douglas Branham
147 Edgewater Drive
Dunedin, FL 34698
Any notice given by (i) telecopier will be effective when confirmed if
given prior to 6:00 p.m., local time, on a Business Day, otherwise it will be
effective on the next succeeding business day; (ii) overnight courier or
personal delivery will be effective on the day delivered, unless such day is
not a Business Day, in which case it will be effective on the next succeeding
Business Day; and (iii) registered or certified mail will be effective three
Business Days after deposit in the mails, all fees prepaid.
7. Interpretation and Definitions. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. Whenever the words "include," "includes" or
"including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation."
8. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each
of the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
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9. Entire Agreement; Limitation on Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon any Person other
than the parties hereto and their permitted successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement or
result in any such Person being deemed a third party beneficiary of this
Agreement.
10. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
11. Specific Performance. The parties agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms of this Agreement and that the parties shall be
entitled to the remedy of specific performance of the terms of this Agreement,
in addition to any other remedy at law or equity.
12. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida.
13. Assignment. Each of the terms, provisions and obligations of this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective legal representatives, successors and assigns.
Notwithstanding the foregoing, the Stockholders shall not be permitted to
assign their interests, during their life, under this Agreement to any person
or entity other than Permitted Assigns. For purposes of this Agreement
"Permitted Assigns" shall mean Doug Branham and Felicia Rivas, their lineal
descendants and any trust or other fiduciary for the benefit of such
individual; and/or such individual's spouse and/or lineal descendants, and such
individual's parents.
14. Number; Gender. Whenever the context so requires, the singular
number shall include the plural and the plural shall include the singular, and
the gender of any pronoun shall include the other genders.
15. Captions. The titles, captions and headings contained in this
Agreement are inserted herein only as a matter of convenience and for reference
and in no way define, limit, extend or describe the scope of this Agreement or
the intent of any provision hereof.
16. Termination of Registration Rights. The registration rights
provided by this Agreement shall terminate and be of no further force and
effect unless exercised prior to the earlier of: (a) the fifth anniversary of
the Closing Date of an IPO or other registration of the Company's securities
under the Securities Exchange Act of 1934, as amended; or (b) with respect to
any Stockholder, such time as the Stockholder has an unlimited right to sell
all of his or her Registrable Securities in the public market without
restriction on volume or otherwise; or (c) either Stockholder voluntarily
leaves the employ of the Company.
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IN WITNESS WHEREOF, the Company and the Stockholders have duly
executed this Registration Rights Agreement as of the date first written above.
"COMPANY"
WITNESSES: INSURANCE MANAGEMENT
SOLUTIONS GROUP, INC.
By:
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As Its:
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WITNESSES: "STOCKHOLDERS"
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J. DOUGLAS BRANHAM
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FELICIA A. RIVAS
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