Exhibit 2
ASSIGNMENT AND ASSUMPTION AGREEMENT
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This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made
and entered into as of the 25th day of February, 1999 by and between Capital Z
Financial Services Fund II, L.P., a Bermuda exempt and limited partnership
("Assignor"), and Capital Z Financial Services Private Fund II, L.P., a Bermuda
exempt and limited partnership ("Assignee").
RECITALS:
WHEREAS, Assignor and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") have entered into a
Securities Purchase Agreement dated as of February 2, 1999 (the "Securities
Purchase Agreement;" terms used but not defined herein shall have the meanings
ascribed to such terms in the Securities Purchase Agreement);
WHEREAS, pursuant to and on the terms and conditions set forth in
the Securities Purchase Agreement, ▇▇▇▇▇ has agreed to sell to Assignor, and
Assignor has agreed to purchase from ▇▇▇▇▇, (i) 1,750,000 shares (the "Shares")
of common stock, par value $.01 per share ("Common Stock"), of United Payors &
United Providers, Inc., a Delaware corporation ("UP&UP) and (ii) an option (the
"▇▇▇▇▇ Option") to purchase 2,250,000 shares of Common Stock (the "▇▇▇▇▇ Option
Shares");
WHEREAS, as a condition to the consummation of the purchase and sale
of the Shares and the ▇▇▇▇▇ Option, (i) Assignor, ▇▇▇▇▇ and UP&UP are required
to enter into the Stockholders Agreement, (ii) Assignor and UP&UP are required
to enter into the Registration Rights Agreement and (iii) ▇▇▇▇▇ is required to
assign to Assignor all of his rights and obligations under the Seller
Registration Rights Agreement;
WHEREAS, the Securities Purchase Agreement permits Assignor to
assign its rights thereunder to any of its Affiliates; and
WHEREAS, Assignor desires to assign and Assignee desires to assume
certain of Assignor's rights and obligations under the Securities Purchase
Agreement (including the right to purchase portions of the Shares and the ▇▇▇▇▇
Option and to become a party to the Stockholders
NYFS08...:\60\33560\0019\2205\AGR2219L.170
Agreement, the Registrations Rights Agreement and the Seller Registrations
Rights Agreement).
NOW, THEREFORE, in consideration of the foregoing premises and
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Assignment. Assignor hereby assigns to Assignee Assignor's right
under (i) the Securities Purchase Agreement to purchase 7,518 of the Shares (the
"Assigned Shares") and (ii) the ▇▇▇▇▇ Option to purchase 9,666 of the ▇▇▇▇▇
Option Shares (the "Assigned ▇▇▇▇▇ Option Shares"), together with all rights
appurtenant thereto.
2. Assumption of Obligations. Assignee hereby expressly assumes all
obligations of Assignor under (i) the Securities Purchase Agreement with respect
to the Assigned Shares and (ii) the ▇▇▇▇▇ Option Agreement with respect to the
Assigned ▇▇▇▇▇ Option Shares.
3. Documentation. To properly effect the assignment of rights and
assumption of obligations pursuant to this Agreement, Assignee agrees to execute
and deliver to Assignor, ▇▇▇▇▇ and UP&UP, as applicable, (i) a counterpart to
the Stockholders Agreement, (ii) a Registration Rights Agreement Joinder in the
form attached to the Registration Agreement as Exhibit A and (iii) a
Registration Rights Agreement Joinder in the form attached to the Seller
Registration Agreement as Exhibit A.
4. Further Assurances. In furtherance of the foregoing, each of
Assignor and Assignee agrees to, without further consideration and whenever and
as often as required by the other, execute, acknowledge and deliver such other
documents and instruments and take such other actions as the other may
reasonably require to carry out the purposes set forth in this Agreement.
5. No Third Party Beneficiaries. Nothing in this Agreement, express
or implied, is intended or shall be construed to confer upon, or give to, any
person or entity, other than the parties hereto and their respective successors
and assigns, any right or remedy under or by reason of this Agreement or any
term, covenant or condition hereof, and all of the terms, covenants, conditions,
promises and agreements contained in this Agreement shall be
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for the sole and exclusive benefit of the parties hereto and their respective
successors and assigns.
6. Counterparts. This Agreement may be executed in any number of
counterpart and each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts together shall constitute but one and the
same instrument.
7. Governing Law. This Agreement, including, without limitation, the
interpretation, construction and validity hereof, shall be governed by the laws
of the State of New York without regard to the conflicts of laws principles
thereof.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first written above.
ASSIGNOR:
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.
By: Capital Z Partners, L.P.,
its sole general partner
By: Capital Z Partners, Ltd.,
its sole general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
ASSIGNEE:
CAPITAL Z FINANCIAL SERVICES PRIVATE FUND II, L.P.
By: Capital Z Partners, L.P.,
its sole general partner
By: Capital Z Partners, Ltd.,
its sole general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board
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ACKNOWLEDGED AS OF FEBRUARY 25, 1999:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
UNITED PAYORS & UNITED PROVIDERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Operating Officer
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