EXHIBIT 7.5
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as
of May 7, 2007 among Universal American Financial Corp., a New York corporation
(the "Company"), and the other parties named on the signature pages hereto (or
which become a party to this Agreement after the date hereof pursuant to the
terms hereof) (each, a "Holder" and, collectively, the "Holders").
WHEREAS, the Company is entering into this Agreement as contemplated by
that certain Securities Purchase Agreement dated as of the date of this
Agreement (the "Securities Purchase Agreement").
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Company, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1 - DEFINITIONS
The following terms, as used herein, have the following meanings:
"Affiliate" means, with respect to any Person, any other Person who
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlled" and "controlling" have meanings correlative thereto. For purposes
hereof, the Company shall not be considered an Affiliate of any Initial Investor
Holder. In addition, for purposes of the definition of "Registrable Securities"
hereunder, the Affiliates of an Initial Investor Holder shall be deemed to
include one or more funds or other investment vehicles under common management
with such Initial Investor Holder.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
"Common Stock" means the Company's authorized shares of common stock, par
value $0.01 per share.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Initial Holders" means the Initial Investor Holders and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
and an "Initial Holder" means any of the foregoing.
"Initial Investor Holders" means each of (1) Capital Z Financial Services
Fund II, L.P., Capital Z Financial Services Private Fund II, L.P., Union Square
Universal Partners, L.P. (the entities in this clause (1) collectively, the
"CapZ/USP Group"), (2) ▇▇▇-Universal Holdings, LLC (the "▇▇▇ Group"), (3) Perry
Partners, L.P., Perry Partners International, Inc., Perry Commitment Fund, L.P.,
Perry Commitment Master Fund, L.P. (the entities in this clause (3)
collectively, the "Perry Group"), (4) Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ IX, L.P.
and Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ X, L.P. (the entities in this clause (4)
collectively, the "WCAS Group"); and an "Initial Investor Holder" means any of
the foregoing entities. The CapZ/USP Group, the ▇▇▇ Group, the Perry Group and
the WCAS Group are sometimes referred to herein each as "Initial Investor
Group."
"MH Merger Agreement" means that certain Agreement and Plan of Merger and
Reorganization, dated as of the date of this Agreement, among the Company, MHRx
LLC, MemberHealth, Inc. and the other parties thereto.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Preferred Shares" means shares of Series A Preferred Stock and Series B
Preferred Stock of the Company.
"Registrable Securities" means (i) all shares of Common Stock respectively
owned by the Initial Holders and their respective Affiliates as of the date of
this Agreement, (ii) any and all shares of Common Stock respectively acquired by
the Initial Holders or their respective Affiliates on, and from and after, the
date of this Agreement (whether directly or indirectly through conversion or
exchange of Preferred Shares or non-voting common shares, or other convertible
or exchangeable securities, of the Company, or pursuant to the exercise of
options, warrants or rights, or pursuant to the MH Merger Agreement, or
otherwise), and (iii) any securities issued directly or indirectly with respect
to such shares described in clause (i) or (ii) by way of a stock dividend,
split, or other division of securities, or in connection with a combination or
reclassification of securities, or in connection with a recapitalization,
merger, consolidation, share exchange or other reorganization of the Company. As
to any particular Registrable Securities, such Registrable Securities shall
cease to be Registrable Securities when they (A) have been sold pursuant to a
registration statement that was filed with the SEC and declared effective under
the Securities Act, (B) have been sold to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Securities Act, (C) are eligible for
sale to the public by the holder thereof, without limitation as to manner of
sale or volume, pursuant to Rule 144(k) under the Securities Act (provided that
this clause (C) shall not apply to shares held by any Initial Investor Holder),
(D) have been sold in a private transaction in which the transferor's
registration rights under this Agreement with respect to such securities were
not assigned to the transferee of such securities, or (E) ceased to be
outstanding.
"Registration Expenses" means any and all expenses incident to the
performance of or compliance with any registration of securities, or marketing
of securities in a public offering, including all (i) registration and filing
fees, and all fees and expenses payable in connection with the listing of
securities on any securities exchange or quotation system, (ii) fees and
expenses of compliance with any securities or "blue sky" laws (including
reasonable fees and disbursements of counsel in connection with "blue sky"
qualifications of the securities registered), (iii) expenses in connection with
the preparation, printing, mailing and delivery of any registration statements,
prospectuses and other documents in connection therewith and any amendments or
supplements thereto, (iv) security engraving and printing expenses, (v) internal
expenses of the Company (including all salaries and expenses of its officers and
employees performing legal or accounting duties and the expenses of any annual
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audit or quarterly review), (vi) fees and disbursements of counsel for the
Company and fees and expenses for independent certified public accountants
retained by the Company (including the expenses associated with the delivery by
independent certified public accountants of any comfort letters to be provided
pursuant to Article 2 hereof), (vii) fees and expenses of any special experts
retained by the Company in connection with such registration, (viii) the
reasonable fees and out-of-pocket expenses of one firm of counsel to the Holders
participating in the offering selected by the Holders holding the majority of
the Registrable Securities to be sold for the account of all Holders in the
offering, (ix) fees and expenses in connection with any review by the NASD of
the underwriting arrangements or other terms of the offering, and all fees and
expenses of any "qualified independent underwriter" or other independent
appraiser participating in any offering pursuant to the Bylaws of the NASD,
including the fees and expenses of any counsel thereto, (x) fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, provided, however, that any underwriting fees, discounts and
commissions attributable to the sale of Registrable Securities shall not be
"Registration Expenses" hereunder, (xi) costs of printing and producing any
agreements among underwriters, underwriting agreements, any "blue sky" or legal
investment memoranda and any selling agreements and other documents in
connection with the offering, sale or delivery of the Registrable Securities,
(xii) transfer agents', registrars', stock custodians' and DTC fees and
expenses, and (xiii) expenses relating to any analyst or investor presentations
undertaken pursuant to Article 2 hereof in connection with the registration,
marketing or selling of Registrable Securities.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
Other Definitional and Interpretive Matters. Unless otherwise expressly
provided, for purposes of this Agreement the following rules of interpretation
shall apply: (i) When calculating the period of time before which, within which
or following which any act is to be done or step taken pursuant to this
Agreement, the date that is the reference date in calculating such period shall
be excluded. If the last day of such period is a non-Business Day, the period in
question shall end on the next succeeding Business Day. (ii) The division of
this Agreement into Articles, Sections and other subdivisions and the insertion
of headings are for convenience of reference only and shall not affect or be
utilized in construing or interpreting this Agreement. (iii) The word
"including" shall be deemed followed by "(but not limited to)".
ARTICLE 2 - REGISTRATION RIGHTS
SECTION 2.01. Demand Registration.
(a) If at any time or from time to time the Company shall receive
a written request from (x) a Holder or Holders holding more than 15% of the then
outstanding Registrable Securities (assuming for this purpose that all Preferred
Shares are converted in full, and irrespective of any limitations on conversion
contemplated by the Certificates of Designations of such stock) or (y) any
Initial Investor Holder (such requesting Person(s), the "Requesting Holders"),
that the Company effect the registration under the Securities Act of all or any
portion of such Requesting Holders' Registrable Securities, and specifying the
intended method of disposition thereof, then the Company shall promptly give
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notice of such requested registration (each such request, a "Demand
Registration") at least 21 days prior to the anticipated filing date of the
registration statement relating to such Demand Registration to the other
Holders, and the Company shall effect (subject to the limitations set forth in
Sections 2.01(e) hereof), as expeditiously as possible, the registration under
the Securities Act of:
(i) all Registrable Securities for which the Requesting
Holders have requested registration under this Section 2.01, and
(ii) all other Registrable Securities that any other Holders
(all such Holders, together with the Requesting Holders, the "Registering
Holders") have requested the Company to register by request received by
the Company within 14 days after such Holders receive the Company's notice
of the Demand Registration, all to the extent necessary to permit the
disposition (in accordance with the intended methods of disposition
specified in such request) of the Registrable Securities so to be
registered; provided that no Person may participate in any registration
statement pursuant to this Section 2.01(a) for an underwritten offering
unless such Person agrees to sell its Registrable Securities to the
underwriters selected as provided in Section 2.05(f) on the same terms and
conditions as apply to the Requesting Holders (including pursuant to the
terms of any over-allotment or "green shoe" option requested by the
managing underwriter; provided that no Holder will be required to sell
more than the number of Registrable Securities that such Holder has
requested the Company to include in such transaction) and completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements; provided, however, that no such Registering
Holder shall be required to make any representations or warranties in
connection with any such registration other than representations and
warranties as to (i) such Person's ownership of its Registrable Securities
to be transferred free and clear of all liens, claims and encumbrances,
(ii) such Person's power and authority to effect such transfer, and (iii)
such matters as may be reasonably requested pertaining to such Person's
compliance with securities laws; provided further, however, that the
obligation of such Person to indemnify pursuant to any such underwriting
arrangements shall be several, not joint and several, among such Persons
selling Registrable Securities, and the liability of each such Person
shall be in proportion thereto; and provided, further, that such liability
shall be limited to the net amount received by such Person from the sale
of its Registrable Securities pursuant to such offering;
provided that, subject to Section 2.01(d) hereof, the Company shall not be
obligated to:
(A) effect any Demand Registration pursuant to clause (x) of
the first paragraph of this Section 2.01(a) unless the aggregate gross
proceeds expected to be received from the sale of the Registrable
Securities requested to be included by all Registering Holders in such
Demand Registration are at least $50 million (prior to deducting
underwriting discounts and commissions);
(B) effect more than one Demand Registration per Initial
Investor Holder pursuant to clause (y) of the first paragraph of this
Section 2.01(a) or effect more than two Demand Registrations per Initial
Investor Group pursuant to clause (y) of the first paragraph of this
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Section 2.01(a) (it being understood that the limitations in this clause
(B) shall not limit rights to Demand Registrations pursuant to clause (x)
of the first paragraph of this Section 2.01(a));
(C) effect a Demand Registration within 180 days of having
effected a prior Demand Registration pursuant to this Section 2.01.
(b) Promptly after the expiration of the 14-day period referred to
in Section 2.01(a)(ii) hereof, the Company will notify all Registering Holders
of the identities of the other Registering Holders and the number of shares of
Registrable Securities requested to be registered. At any time prior to the
effective date of the registration statement relating to such registration, the
Requesting Holders holding a majority of the Registrable Securities requested by
such Requesting Holders to be included in such registration may revoke such
request without liability to any of the other Registering Holders, by providing
a notice to the Company revoking such request.
(c) The Company shall be liable for and pay all Registration
Expenses in connection with each Demand Registration, regardless of whether such
registration is effected.
(d) A Demand Registration shall not be deemed to have occurred:
(i) unless (A) the registration statement relating thereto
shall have become effective under the Securities Act and shall have
remained effective for a period of at least 180 consecutive days (or such
shorter period in which all Registrable Securities of the Registering
Holders included in such registration have actually been sold thereunder),
provided that such registration shall not be considered a Demand
Registration if, after such registration statement becomes effective, such
registration statement (or the use of the related prospectus) is
interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court, and (B) if
in connection with an underwritten offering, all customary conditions in
the applicable underwriting agreement shall have been satisfied, other
than any failure primarily due to an act, omission or misrepresentation of
a Holder participating therein; or
(ii) if due to the Demand Maximum Offering Size provision of
Section 2.01(e) hereof, less than 75% of the Registrable Securities of the
Requesting Holders sought to be included in such registration are
included.
(e) If a Demand Registration involves an underwritten public
offering and the managing underwriter advises the Requesting Holders that, in
its view, the number of shares that the Registering Holders propose to include
in such registration exceeds the largest number of shares that can be sold
without having an adverse effect on such offering, including the price at which
such shares can be sold (the "Demand Maximum Offering Size"), the Company shall
include in such registration, in the priority listed below, up to the Demand
Maximum Offering Size:
(i) first, all Registrable Securities requested to be
registered by the Requesting Holders and all Registrable Securities
requested to be included in such registration by any other Registering
Holders (allocated, if necessary for the offering not to exceed the Demand
Maximum Offering Size, pro rata among such Requesting Holders and other
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Registering Holders on the basis of the relative number of Registrable
Securities so requested to be included in such registration by each); and
(ii) second, any shares of Common Stock proposed to be
registered by the Company for its own account.
(f) The Company may defer the filing (but not the preparation) of
a registration statement required by Section 2.01 hereof until a date not later
than 90 days after the date of the request to file such registration statement
if (i) at the time the Company receives the request to register shares, the
Company is engaged in confidential negotiations or other confidential business
activities or the Board of Directors of the Company determines that the Company
is at such time otherwise in possession of material non-public information with
respect to the Company, in each case, disclosure of which would be required in
such registration statement (but would not be required if such registration
statement were not filed), and the Board of Directors of the Company determines
in good faith that such public disclosure at that time would be materially
detrimental to the Company and its stockholders (other than, if applicable, the
Holders requesting such registration), or (ii) prior to receiving the request to
register shares, the Board of Directors of the Company had resolved to effect a
registered underwritten public offering of Company equity securities for the
Company's account and the Company had taken substantial steps (including, but
not limited to, selecting a managing underwriter for such offering) and is
actively proceeding with reasonable diligence to effect such offering. A
deferral of the filing of a registration statement pursuant to this Section
2.01(f) shall be lifted, and the requested registration statement shall be filed
forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding
sentence, the negotiations or other activities are terminated or publicly
disclosed (or such material non-public information has been publicly disclosed),
or, in the case of a deferral pursuant to clause (ii) of the preceding sentence,
the proposed registration for the Company's account is abandoned. In order to
defer the filing of a registration statement pursuant to this Section 2.01(f),
the Company shall promptly (but in any event within 7 days), upon determining to
seek such deferral, deliver to each Holder requesting such registration a
certificate signed by an executive officer of the Company stating that the
Company is deferring such filing pursuant to this Section 2.01(f) and (unless
such Holder had previously requested in writing that the Company not disclose to
it such information under this paragraph) a general statement of the reason for
such deferral and an approximation of the anticipated delay (to the extent it
shall be legally permissible for the Company to so disclose such information to
such Holder). The Company may defer the filing of a registration statement
pursuant to this Section 2.01(f) only once in any 360-day period and the period
of deferrals shall not exceed 90 days in the aggregate over any 360-day period.
SECTION 2.02. Piggyback Registration.
(a) If the Company proposes to register any equity securities
under the Securities Act (other than pursuant to Section 2.01 hereof and other
than (i) a registration on Form S-4 related to a merger, business acquisition or
business combination involving the Company, (ii) a registration on Form S-8
relating to a Company equity compensation plan for directors or employees of the
Company and its subsidiaries, (iii) a registration on Form S-2 relating to
shares issued prior to the date of this Agreement, or relating to shares
issuable upon exercise of incentive stock options, in each case, issued to the
Company's agents under the Company's incentive compensation plans for agents of
the Company and its subsidiaries or (iv) a registration on Form S-3 filed as
contemplated by that certain registration rights letter agreement executed by
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the Company pursuant to the MH Merger Agreement and covering exclusively shares
of Common Stock issued pursuant to the MH Merger Agreement), the Company shall
at each such time give prompt written notice at least 21 days prior to the
anticipated filing date of the registration statement relating to such
registration to each Holder, which notice shall offer such Holder the
opportunity to include in such registration statement all or any portion of the
Registrable Securities held by such Holder (a "Piggyback Registration"), subject
to the limitations set forth herein. Upon the request of any such Holder made
within 14 days after the receipt of notice from the Company (which request shall
specify the number of Registrable Securities intended to be registered by such
Holder), the Company shall use its reasonable best efforts to effect the
registration under the Securities Act of all Registrable Securities that the
Company has been so requested to register by all such Holders, to the extent
required to permit the disposition of the Registrable Securities so to be
registered, provided that if such registration involves an underwritten public
offering, all such Holders requesting to be included in the Company's
registration must sell their Registrable Securities to the underwriters on the
same terms and conditions as apply to other selling stockholders, to the extent
applicable to the Holders (including pursuant to the terms of any over-allotment
or "green shoe" option requested by the managing underwriter; provided that no
Holder will be required to sell more than the number of Registrable Securities
that such Holder has requested the Company to include in such transaction) and
consistent with the provisions of this Agreement (including Sections 2.06, 2.07,
2.08 and 2.09 hereof); provided, however, that no such Holder shall be required
to make any representations or warranties in connection with any such
registration other than representations and warranties as to (i) such Person's
ownership of its Registrable Securities to be transferred free and clear of all
liens, claims and encumbrances, (ii) such Person's power and authority to effect
such transfer, and (iii) such matters as may be reasonably requested pertaining
to such Person's compliance with securities laws; provided further, however,
that the obligation of such Holder to indemnify pursuant to any such
underwriting arrangements shall be several, not joint and several, among such
Persons selling Registrable Securities, and the liability of each such Person
shall be in proportion thereto, and provided further, that such liability shall
be limited to the net amount received by such Holder from the sale of its
Registrable Securities pursuant to such offering. If, at any time after giving
notice pursuant to this Section 2.02(a) of its intention to register any shares
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register such shares, the Company shall give notice to all such Holders
and, thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration. No registration effected under
this Section 2.02 shall relieve the Company of its obligations to effect a
registration to the extent required by Section 2.01 hereof. The Company shall be
liable for and pay all Registration Expenses in connection with each Piggyback
Registration, regardless of whether such registration is effected.
(b) If a Piggyback Registration involves an underwritten public
offering (for the avoidance of doubt, other than any Demand Registration, in
which case the provisions with respect to priority of inclusion in such offering
set forth in Section 2.01(e) hereof shall apply) and the managing underwriter
advises the Company that, in its view, the number of shares that the Company and
selling Holders propose to include in such registration exceeds the largest
number of shares that can be sold without having an adverse effect on such
offering, including the price at which such shares can be sold (the "Piggyback
Maximum Offering Size"), the Company shall include in such registration, in the
following priority, up to the Piggyback Maximum Offering Size:
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(i) first, such number of shares proposed to be registered
for the account of the Company, if any, as would not cause the offering to
exceed the Piggyback Maximum Offering Size;
(ii) second, such number of shares owned by Persons
exercising "demand" registration rights with respect to such registration
(which rights shall not have been granted in violation of this Agreement),
if any, as would not cause the offering to exceed the Piggyback Maximum
Offering Size; and
(iii) third, all Registrable Securities requested to be
included in such registration by any Holders pursuant to this Section 2.02
(allocated, if necessary for the offering not to exceed the Piggyback
Maximum Offering Size, pro rata among such Holders based on the relative
number of Registrable Securities requested to be included in the Piggyback
Registration).
SECTION 2.03. Subsequent Registration Rights. The Company
shall not enter into any agreement with respect to any equity securities that
grants or provides holders of such securities with registration rights that have
terms more favorable than the registration rights granted to holders of the
Registrable Securities in this Agreement unless similar rights are granted to
holders of Registrable Securities. For the avoidance of doubt, this Section is
not intended to relate to registration rights granted in relation to the MH
Merger Agreement as in effect on the date of this Agreement.
SECTION 2.04. Acknowledgement. The Company acknowledges that
its covenants and agreements set forth in this Agreement are in addition to, and
not in substitution of, any covenants and agreements that may otherwise run in
favor of a Holder or its Affiliates.
SECTION 2.05. Registration Procedures. Whenever any Holders
request that any Registrable Securities be registered pursuant to Section 2.01
or Section 2.02 hereof, the Company shall (subject to the provisions of such
Sections) effect the registration of such Registrable Securities in accordance
with the Holders' respective intended method of disposition thereof as quickly
as practicable and, in connection with any such request:
(a) The Company shall as expeditiously as possible prepare and
file with the SEC a registration statement on a form for which the Company then
qualifies and that counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Registrable Securities to be registered
thereunder in accordance with the Holders' respective intended method of
distribution thereof, and promptly prepare and file with SEC such necessary or
appropriate amendments and supplements, and take such other action, to cause
such filed registration statement to become and remain effective for a period of
not less than 180 days (or such shorter period in which all of the Registrable
Securities of the Holders included in such registration statement shall have
actually been sold thereunder).
(b) Prior to filing a registration statement or prospectus or any
amendment or supplement thereto, the Company shall furnish to each participating
Holder and each underwriter, if any, of the Registrable Securities covered by
such registration statement, copies of such registration statement as proposed
to be filed, and thereafter the Company shall furnish to such Holder and
underwriter, if any, such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto
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and documents incorporated by reference therein), the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A
under the Securities Act and such other documents as such Holder or underwriter
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder.
(c) After the filing of the registration statement, the Company
shall as promptly as practicable (i) cause the related prospectus to be
supplemented by any required prospectus supplement and, as so supplemented, to
be filed pursuant to Rule 424 under the Securities Act, (ii) comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition by the
Holders thereof set forth in such registration statement or supplement to such
prospectus, (iii) notify each Holder holding Registrable Securities covered by
such registration statement when such registration statement shall have been
declared effective by the SEC, and (iv) notify each Holder holding Registrable
Securities covered by such registration statement of any stop order issued or
threatened by the SEC or any state securities commission, and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(d) The Company shall (i) register or qualify the Registrable
Securities covered by such registration statement under such other securities or
"blue sky" laws of such jurisdictions in the United States as any Holder holding
such Registrable Securities reasonably (in light of such Holder's intended plan
of distribution) requests and (ii) cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company and
do any and all other acts and things that may be reasonably necessary or
advisable to enable such Holder to consummate the disposition of the Registrable
Securities owned by such Holder in accordance with the intended methods of
disposition; provided that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 2.05(d), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in any
such jurisdiction.
(e) The Company shall as promptly as practicable notify each
Holder holding Registrable Securities covered by a registration statement of the
occurrence of an event or other circumstance requiring the preparation of a
supplement or amendment to the related prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and promptly prepare and make available to each such Holder and
file with the SEC any such supplement or amendment.
(f) The Board of Directors of the Company shall have the right to
select the underwriter or underwriters in connection with any public offering
described in Section 2.02 hereof. In connection with any public offering of
Registrable Securities pursuant to Section 2.01 hereof that is to be
underwritten, the Holders owning at least 51% of the Registrable Securities of
the Registering Holders to be registered in such offering shall select the
underwriter or underwriters (which underwriter(s) shall be reasonably acceptable
to the Company, with confirmation of such acceptability not to be unreasonably
conditioned, withheld or delayed). In connection with any public offering
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contemplated by this Article 2 that is to be underwritten, the Company shall
enter into customary agreements (including an underwriting agreement in
customary form, which shall include customary representations, warranties,
covenants, indemnification provisions and "lock-up"/holdback provisions of the
Company in favor of the underwriters, provided that any obligations of Holders
shall be consistent with the provisions in this Agreement), and take all such
reasonable other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities in any such public
offering, including (if necessary) the engagement of a "qualified independent
underwriter" in connection with the qualification of the underwriting
arrangements with the NASD. Each Holder participating in such underwriting shall
also enter into such agreement, provided that the terms of any such agreement
are consistent with this Agreement and provided that the scope of the indemnity
from Holders in favor of the underwriters and the Company contained in such
agreement shall not be more extensive in any material respect than the
comparable provisions in this Agreement.
(g) Upon execution of customary confidentiality agreements in form
and substance reasonably satisfactory to the Company, the Company shall make
available for inspection by any Holder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the Company
pursuant to this Article 2 and any attorney, accountant or other professional
retained by any such Holder or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any Inspectors in connection with such registration statement. Records that
the Company determines, in good faith, to be confidential and that it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors unless
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such registration statement or (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is otherwise required by law.
(h) In connection with each such registration for an underwritten
public offering, the Company shall cause to be furnished to each Holder and
underwriter participating therein a signed counterpart, addressed to such
Persons, of (i) opinions of counsel to the Company and (ii) "comfort letters"
from the Company's independent public accountants, each in customary form and
covering such matters of the kind customarily covered by opinions of counsel or
comfort letters in connection with consummation of similar transactions.
(i) The Company shall otherwise comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement or such other document that
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(j) The Company may require each Holder with Registrable
Securities proposed to be included in such registration, by written notice given
to each such Holder not less than 10 days prior to the filing date of such
registration statement, to promptly furnish in writing to the Company such
information regarding such Holder and its distribution of Registrable Securities
as the Company may reasonably request as being legally required in connection
with such registration. The Company shall file, as promptly as reasonably
practicable, such supplements and/or amendments from time to time to any
10
registration statement or prospectus as may be requested by a Holder from time
to time in writing to reflect changes in the list of selling securityholders
contained in such registration statement or prospectus.
(k) Each Holder agrees that, upon receipt of any written notice
from the Company of the occurrence of any event or other circumstance requiring
the preparation of a supplement or amendment of a prospectus relating to the
Registrable Securities covered by a registration statement that is required to
be delivered under the Securities Act so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or to make the statements therein not misleading, such
Holder shall (i) forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt of the copies of a supplemented or amended
prospectus, and (ii) if so directed by the Company, such Holder shall deliver to
the Company all copies, other than any permanent file copies then in such
Holder's possession, of the most recent prospectus covering such Registrable
Securities at the time of receipt of such notice. If the Company shall give such
notice, the Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
Section 2.05(a) hereof) by the number of days during the period from and
including the date of the giving of notice pursuant to Section 2.05(e) hereof to
the date when the Company shall make available to such Holder a prospectus
supplemented or amended to conform with the requirements of Section 2.05(e)
hereof.
(l) The Company shall list all Registrable Securities covered by
such registration statement on the principal securities exchange or quotation
system on which the Common Stock is then listed or traded, and if the Common
Stock is not listed on any securities exchange, the Company shall use its
reasonable best efforts to list all such Registrable Securities on any domestic
securities exchange.
(m) In connection with each such registration for an underwritten
public offering where the aggregate proceeds (net of underwriting discounts and
commissions) from the sale of Registrable Securities in such offering are
estimated to be in excess of $50 million, the Company shall have appropriate
officers of the Company (i) prepare and make presentations at any "road shows"
and before analysts and rating agencies, as the case may be, and (ii) otherwise
use their reasonable efforts to cooperate as requested by underwriters in the
offering, marketing or selling of the Registrable Securities.
(n) If requested by a Holder, the Company shall include in any
registration statement or prospectus naming such Holder language to the effect
that such Holder's participation in such offering does not constitute an
endorsement or recommendation by such Holder or any of its Affiliates of the
Company or any of the Company's securities (or the investment quality thereof)
or create any inference that such Holder or any of its Affiliates would
necessarily help the Company meet any financial or other requirements.
SECTION 2.06. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Holder, such Holders' officers,
directors, employees, managers, members, partners and agents, and each Person,
if any, who controls any such Persons within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
11
losses, claims, damages, liabilities and expenses (including reasonable expenses
of investigation and reasonable attorneys' fees and expenses) (collectively,
"Damages") insofar as such Damages shall have been caused by, based upon, arose
out of, resulted from or related to any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus (or preliminary prospectus) relating to the Registrable Securities
owned by such Holder (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
Damages are caused by or related to any such untrue statement or omission or
alleged untrue statement or omission so made based upon information furnished in
writing to the Company by such Holder or on such Holder's behalf expressly for
use therein.
SECTION 2.07. Indemnification by the Participating Holders.
Each Holder with Registrable Securities included in any registration statement
agrees, severally but not jointly, to indemnify and hold harmless, from and
against all Damages, the Company, its officers, directors and each Person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, but only insofar as such Damages shall
have been caused by or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus (or preliminary prospectus) relating to the Registrable Securities
owned by such Holder or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case under clause (i) and (ii) of this
Section 2.07, only to the extent such untrue statement or omission (or alleged
untrue statement or omission) was based upon information furnished in writing to
the Company by such Holder or on such Holder's behalf expressly for use in such
prospectus (or preliminary prospectus) or registration statement (or amendment
or supplement thereto). No Holder shall be liable under this Section 2.07 for
any Damages in excess of the net proceeds realized by such Holder in the sale of
Registrable Securities of such Holder to which such Damages relate.
SECTION 2.08. Conduct of Indemnification Proceedings. If any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Article 2, such Person (an "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all fees and expenses, provided that the failure of
any Indemnified Party so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is materially prejudiced by such failure to notify. In any
such proceeding, any Indemnified Party shall have the right to retain its own
separate counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the Indemnifying Party shall have
agreed to the retention of such counsel at its expense or (ii) in the reasonable
judgment of such Indemnified Party, representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. The Indemnifying Party shall not be liable for any settlement of
any claim effected without its written consent, which consent shall not be
unreasonably withheld or delayed, but if settled with such consent, or if there
be a final judgment for the plaintiff, the Indemnifying Party shall indemnify
and hold harmless such Indemnified Parties from and against all indemnified
Damages (to the extent stated above) by reason of such settlement or judgment.
12
Without the prior written consent of the Indemnified Party, no Indemnifying
Party shall effect any settlement of any pending or threatened claim in respect
of which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
arising out of such proceeding.
SECTION 2.09. Contribution. If the indemnification provided
for in this Article 2 is unavailable to the Indemnified Parties or insufficient
in respect of any Damages (other than by reason of the exceptions provided
herein), then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Damages, as between the Company on the one
hand and each such Holder on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each such Holder in connection
with such statements or omissions, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of each
such Holder on the other 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 such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.09 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
Damages referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 2.09, no Holder shall be required to contribute any amount in excess of
the amount by which the net proceeds realized by such Holder in the sale of
Registrable Securities of such Holder to which such Damages relate exceeds the
amount of any Damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. 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. Subject to
the foregoing and as among the Holders, each Holder's obligation to contribute
pursuant to this Section 2.09 is several in the proportion that the proceeds of
the offering received by such Holder bears to the total proceeds of the offering
received by all such Holders and not joint.
ARTICLE 3 - OTHER PROVISIONS AND MISCELLANEOUS
SECTION 3.01. Rule 144. The Company agrees to cause the
conditions of Rule 144(c) under the Securities Act to be satisfied with respect
to the Company at all times during which any of the Registrable Securities are
outstanding.
SECTION 3.02. Binding Effect; Assignability; Benefit.
(a) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors, legal representatives
and permitted assigns; provided that rights granted to any Holder hereunder may
13
only be assigned in connection with a transfer of Registrable Securities to the
assignee in accordance with the following paragraph; and provided further that
an Initial Investor Holder's demand registration rights under clause (y) of the
first paragraph of Section 2.01(a) may not be assigned without the Company's
consent. The Company shall not assign this Agreement, in whole or in part. Any
purported assignment not in accordance with this Agreement shall be null and
void.
Each Holder agrees not to transfer any portion of its Registrable
Securities unless (i) there is then in effect a registration statement under the
Securities Act covering such proposed transfer or (ii) such transfer is made in
accordance with Rule 144 under the Securities Act or another available exemption
from registration under the Securities Act. In connection with any transfer of
Registrable Securities described in clause (ii) of the preceding sentence, the
transferring Holder may also assign to the transferee rights and obligations
under this Agreement with respect to any Registrable Securities so transferred,
and upon the Company's receipt from the assignee a completed and executed
Joinder substantially in the form of Exhibit A hereto, such assignee will be
deemed to also be a Holder under this Agreement.
(b) The Company shall promptly provide to any Holder that,
together with its Affiliates, owns 10% or more of the Registrable Securities
(assuming for this purpose that all Preferred Shares are converted in full, and
irrespective of any limitations on conversion contemplated by the Certificate of
Designations of such stock), upon its request, a copy of the most current
listing in the Company's or its agents' possession of the names and addresses of
the then-current Holders of Registrable Securities and the number of Registrable
Securities respectively held by them.
(c) Nothing in this Agreement, expressed or implied, is intended
to confer on any Person (other than the parties hereto, their respective
successors, legal representatives and permitted assigns, and Indemnified Parties
under Sections 2.06, 2.07, 2.08 and 2.09 hereof), any rights or remedies under
or by reason of this Agreement.
SECTION 3.03. Notices. All notices, requests and other
communications to any party shall be in writing and shall be delivered in
person, sent by reputable overnight courier service, or sent by facsimile
transmission,
if to the Company, to Universal American Financial Corp., ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇; Attention:
General Counsel; Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇,
if to the Initial Holders, at their respective addresses set
forth in Schedule I,
or, in each case, at such other address or fax number as such party may
hereafter specify for the purpose of notices hereunder by written notice to the
other party. All notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to
5:00 p.m. in the place of receipt and such day is a Business Day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding Business Day in the place of
receipt. Any notice, request or other written communication sent by facsimile
transmission shall be confirmed by personal delivery or by reputable overnight
14
courier, made within 2 Business Days after the date of such facsimile
transmissions.
SECTION 3.04. Waiver; Amendment. Except as otherwise provided
herein, no failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof or the exercise of any other right, power or privilege.
No provision of this Agreement may be waived except by an instrument in writing
executed by the party against whom the waiver is to be effective. Except as
otherwise provided herein, no provision of this Agreement may be amended or
otherwise modified except by an instrument in writing executed by the Company
and Holders holding more than 51% of the Registrable Securities held by the
Holders (assuming for this purpose that all Preferred Shares and non-voting
common shares of the Company are converted in full, and irrespective of any
limitations on conversion contemplated by the respective Certificates of
Amendment to the Certificate of Incorporation of the Company for such stock);
provided, however, that any amendment or modification of this Agreement that
treats a Holder individually in an inconsistent and adverse manner with respect
to all other Holders shall require the consent of such Holder; provided further
that protections afforded to a Holder and its related Indemnified Parties
pursuant to Sections 2.06, 2.07, 2.08 and 2.09 hereof in respect of any
antecedent registration may not be adversely modified without the consent of
such Holder; and provided further, that this Agreement may be amended by the
Company solely to add stockholders who receive shares of Common Stock pursuant
to the Merger Agreement as Holders hereunder and who agree to be bound by all of
the terms of this Agreement applicable to a Holder.
SECTION 3.05. Fees and Expenses. Each party shall pay its own
costs and expenses incurred in connection with the preparation and execution of
this Agreement, or any amendment or waiver hereof, and (except as otherwise
provided herein or separately agreed in writing) the transactions contemplated
hereby and all matters related hereto. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof or
thereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorneys' fees in addition to any other available remedy.
SECTION 3.06. Governing Law; Jurisdiction; Enforcement; Waiver
of Jury Trial.
(a) All issues and questions concerning the construction,
validity, interpretation and enforceability of this Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of New York or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than New York.
(b) Each of the parties hereto irrevocably agrees that any legal
action or proceeding that may be based upon, arise out of or relate to this
Agreement or the negotiation, execution or performance hereof, shall be brought
and determined exclusively in any state courts of New York County of the State
of New York, or in the event (but only in the event) that such court does not
have subject matter jurisdiction over such action or proceeding, in any federal
District Court sitting in New York City. Each of the parties hereto hereby
irrevocably submits with regard to any such action or proceeding for itself and
in respect of its property, generally and unconditionally, to the exclusive
15
personal jurisdiction of the aforesaid courts and agrees that it will not bring
any such action in any court other than the aforesaid courts. Each of the
parties hereto hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (i) any claim that it is not personally subject
to the jurisdiction of the above named courts for any reason other than the
failure to serve in accordance with this Section, (ii) any claim that it or its
property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) and (iii) to the fullest extent permitted by
the applicable law, any claim that (A) the suit, action or proceeding in such
court is brought in an inconvenient forum, (B) the venue of such suit, action or
proceeding is improper or (C) this Agreement, or the subject mater hereof, may
not be enforced in or by such courts. Each of the parties hereto irrevocably
consents to process being served by any party to this Agreement in any legal
action or proceeding by delivery of a copy thereof in accordance with the
provisions of Section 3.03 without prejudice to the right of any party to serve
process pursuant to applicable laws. The consents to jurisdiction set forth in
this paragraph shall not constitute general consents to service of process in
the State of New York and shall have no effect for any purpose except as
provided in this paragraph and shall not be deemed to confer rights on any
Person other than the parties hereto.
(c) The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement (including in the courts of New York
County of the State of New York or in the United States District Court for the
Southern District of New York), without bond or other security being required,
this being in addition to any other remedy to which they are entitled at law or
in equity.
(d) Each of the parties hereto hereby irrevocably waives any and
all rights to trial by jury in any legal proceeding arising out of or related to
this Agreement.
SECTION 3.07. Cumulative Remedies. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the exercise or
beginning of the exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such rights, powers or remedies by
such party.
SECTION 3.08. Entire Agreement. This Agreement constitutes the
entire agreement and understanding among the parties hereto in respect of the
subject matter hereof and supersede all prior and contemporaneous agreements and
understandings, both oral and written, among the parties hereto, or between any
of them, with respect to the subject matter hereof (including the registration
rights granted by the Company under that certain agreement dated as of July 30,
1999).
SECTION 3.09. 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
16
full force and effect and shall in no way be affected, impaired or invalidated.
Upon such a determination, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
SECTION 3.10. Counterparts; Effectiveness. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
SECTION 3.11. Drafting. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement and, in the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as jointly drafted by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement.
SECTION 3.12. Nature of Holder's Obligations. The obligations
of each Holder under this Agreement are several and not joint with the
obligations of any other Holder, and no Holder shall be responsible in any way
for the performance of the obligations of any other Holder under this Agreement.
Nothing contained herein, and no action taken by any Holder pursuant hereto or
in connection herewith, shall be deemed to constitute the Holders as a
partnership, a joint venture or any other kind of entity, or create a
presumption that the Holders are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by this Agreement.
[signature pages follow]
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
UNIVERSAL AMERICAN FINANCIAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO
INITIAL HOLDERS:
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.
By: Capital Z Partners, L.P., its General
Partner
By: Capital Z Partners, Ltd., its General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Counsel
CAPITAL Z FINANCIAL SERVICES PRIVATE FUND II, L.P.
By: CAPITAL Z PARTNERS, L.P., its General Partner
By: CAPITAL Z PARTNERS, LTD., its General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Counsel
UNION SQUARE UNIVERSAL PARTNERS, L.P.
By: UNION SQUARE UNIVERSAL GP, LLC, its General
Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇-UNIVERSAL HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: CFO
PERRY PARTNERS, L.P.,
By: PERRY CORP., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: General Counsel
18
PERRY PARTNERS INTERNATIONAL, INC.
By: PERRY CORP., its Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: General Counsel
PERRY COMMITMENT FUND, L.P.,
By: PERRY COMMITMENT ASSOCIATES, LLC, its
General Partner,
By: PERRY CORP., its Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: General Counsel
PERRY COMMITMENT MASTER FUND, L.P.,
By: PERRY COMMITMENT ASSOCIATES, LLC, its
General Partner,
By: PERRY CORP., its Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: General Counsel
WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, IX, L.P.,
By: WCAS X ASSOCIATES, LLC, its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Member
WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, X, L.P.,
By: WCAS X ASSOCIATES, LLC, its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Member
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
19
SCHEDULE I
----------
Addresses for Notices to Initial Holders
----------------------------------------
If to a member of the CapZ/USP Group, to it c/o:
Capital Z / Union Square
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ Spass/▇▇▇▇ ▇▇▇▇▇▇
If to a member of the ▇▇▇ Group, to it c/o:
▇▇▇ Equity Partners
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If to a member of the Perry Group, to it c/o:
Perry Capital
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
If to a member of the WCAS Group, to it c/o:
Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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c/o Universal American Financial Corp.
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EXHIBIT A
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[FORM OF] JOINDER
[Date]
Universal American Financial Corp.
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Attention: General Counsel
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement, dated as of [Date]
(the "Agreement"), with Universal American Financial Corp. (the "Company").
Capitalized terms used and not otherwise defined herein are used herein as
defined in the Agreement.
The undersigned ("Transferee") hereby: (i) acknowledges receipt of a copy
of the Agreement; (ii) notifies the Company that, on [Date], Transferee acquired
from [insert name of assigning Holder] (pursuant to a private transfer that was
exempt from the registration requirements under the Securities Act) [describe
the Registrable Securities that were transferred] (the "Transferred Securities")
and an assignment of such transferor's rights under the Agreement with respect
and to the Transferred Securities, and the Transferee has assumed from such
transferor the liability for any and all obligations under the Agreement related
to the Transferred Securities; and (iii) agrees to be bound by all terms of the
Agreement with respect to the Transferred Securities applicable to a Holder of
such Transferred Securities as if the Transferee was an original signatory to
the Agreement.
Notices to the Transferee for purposes of the Agreement may be
addressed to: [___________], [___________], Attn: [_______], Fax:
[________].
This document shall be governed by, and construed in accordance with, the
laws of the State of New York, applicable to contracts executed in and to be
performed entirely within that State.
[Transferee]
[By:] _______________________ Name:
[Title:]
cc: [Transferor]
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