Exhibit 10.23


 


FLOATING RATE SURPLUS NOTE DUE
2034


 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH SECURITIES, AND ANY INTEREST THEREIN, MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. 
EACH PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF
THE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.


 


THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR
OTHERWISE TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING
OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR (V) PURSUANT TO AN EXEMPTION FROM THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE
CASE OF (III) OR (V), SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN OPINION
OF COUNSEL AND OTHER INFORMATION SATISFACTORY TO IT AND (B) THE HOLDER
WILL NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.


 


THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SECURITIES, OR ANY
INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN
$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND SUCH


 





















 


PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
SUCH SECURITIES.


 


THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR
THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE
BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
(EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE
OR HOLD THIS SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER OF THE
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS
OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.


 





















 


Cusip No.                              


 


AmCOMP Preferred Insurance Company


 


Surplus Note due 2034


 


	
  No. 1

  	
  $ 12,000,000

  



 


AmCOMP Preferred Insurance Company, a stock insurance
company organized and existing under the laws of Florida (hereinafter called the “Company,” which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to JPMorgan Chase Bank, not in its individual capacity, but solely as
trustee for ICONS, Ltd., or registered assigns, the principal sum of Twelve
Million Dollars ($12,000,000) or such other principal amount represented hereby
as may be set forth in the records of the Securities Registrar hereinafter
referred to in accordance with the Indenture on May 24, 2034.  The Company further promises to pay interest
on said principal sum from May 26, 2004, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, quarterly in
arrears on February 24, May 24, August 24 and November 24
of each year, commencing August 24, 2004, or if any such day is not a
Business Day, on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date until such next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on the Interest Payment Date,
at a variable rate equal to LIBOR plus 4.25% per annum, until the principal
hereof is paid or duly provided for or made available for payment; provided, that the Company shall have
received the prior approval of the Applicable Insurance Regulatory Authority
therefor if then required;
provided, further, that
any overdue principal, premium, if any, and any overdue installment of interest
shall bear Additional Interest at a variable rate equal to LIBOR plus 4.25% per
annum (to the extent that the
payment of such interest shall be legally enforceable), compounded quarterly,
from the latter of (a) the dates such amounts are due and (b) the
dates such amounts are approved by the Applicable Insurance Regulatory
Authority until they are paid or made available for payment, and such interest
shall be payable on demand. 
Notwithstanding the foregoing or anything to the contrary herein
contained or implied, principal of and premium, if any, and interest on the
Securities shall be (i) payable solely from and to the extent, if any, of
Available Surplus, (ii) subject to the prior approval of the Applicable
Insurance Regulatory Authority therefor and (iii) subject to any other
restrictions set forth under Applicable Insurance Laws (the foregoing,
collectively, the “Payment Restrictions”). 
If not so approved or if there is insufficient Available Surplus
therefor, such principal, premium, if any, or interest shall not be due and
payable.


 


The amount of interest payable shall be computed on
the basis of a 360-day year and the actual number of days elapsed in the
relevant interest period.  The interest
so payable, and punctually paid or duly provided for out of the Available
Surplus, on any Interest Payment Date shall, as provided in the Indenture, be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest installment; provided, that
the Company shall have received the prior approval of the Applicable Insurance
Regulatory Authority therefor if then required. 
Any such interest not so punctually paid or duly provided for on the
Interest Payment Date shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in


 





















 


whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities not less
than ten (10) days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.


 


Payment of principal of, premium, if any, and
interest on this Security shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.  Payments of
principal, premium, if any, and interest due at the Maturity of this Security
shall be made at the Place of
Payment upon surrender of such Securities to the Paying
Agent, and payments of interest shall be made, subject to such surrender where
applicable, by wire transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Paying
Agent at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written transfer instructions have not
been received by the relevant record date, in which case such payments shall be
made by check mailed to the address of such Person as such address shall appear
in the Security Register.


 


The indebtedness evidenced by this Security
is, to the extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Obligations, and this
Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his or her behalf to take such actions as may be necessary or appropriate
to effectuate the subordination so provided and (c) appoints the Trustee
his or her attorney-in-fact for any and all such purposes. Each Holder hereof,
by his or her acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Obligations, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.


 


Unless the certificate of authentication hereon has
been executed by the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.


 





















 


IN WITNESS WHEREOF, the Company has duly
executed this certificate on this 26th day of May, 2004.


 


 


	
   

  	
  AMCOMP PREFERRED INSURANCE COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Debra C. Ruedisili

  	
   

  
	
   

  	
   

  	
  Name: Debra Cerre-Ruedisili

  
	
   

  	
   

  	
  Title: President, Vice Chairman, Chief

  
	
   

  	
   

  	
  Operating Officer and Director

  



 





















 


This is one of the Securities referred to in
the within mentioned Indenture.


 


	
  Dated: May 26, 2004

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK,

  
	
   

  	
  not in its
  individual capacity, but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maria D. Calzado

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 





















 


[REVERSE
OF SECURITY]


 


This Security is one of a duly authorized issue of
securities of the Company (the “Securities”)
issued under the Indenture, dated as of May 26, 2004 (the “Indenture”),
between the Company and JPMorgan Chase Bank, as Trustee (in such capacity, the “Trustee,”
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
Obligations and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.


 


All terms used in this Security that are defined in
the Indenture shall have the meanings assigned to them in the Indenture.


 


The Company may, on any
Interest Payment Date, at its option, upon not less than thirty (30) days’ nor
more than sixty (60) days’ written notice to the Holders of the Securities
(unless a shorter notice period shall be satisfactory to the Trustee) on or
after May 24, 2009 and subject to the terms and conditions of Article XI
of the Indenture, redeem this Security in whole at any time or in part from
time to time at a Redemption Price equal to one hundred percent (100%) of the
principal amount hereof, together, in the case of any such redemption, with
accrued interest, including any Additional Interest, to but excluding the date
fixed for redemption; subject to there being no, or the satisfaction of any,
Payment Restrictions.


 


In the event of redemption of this Security in part
only, a new Security or Securities for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.  If less than all the Securities are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than sixty (60) days prior to the Redemption Date by the Trustee from the
Outstanding Securities not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of a portion of the principal amount of any Security.


 


The Indenture permits, with certain exceptions as
therein provided, the Company and the Trustee at any time to enter into a
supplemental indenture or indentures for the purpose of modifying in any manner
the rights and obligations of the Company and of the Holders of the Securities,
with the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities. The Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Securities, on
behalf of the Holders of all Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.


 


No reference herein to the Indenture nor any provision
of this Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of and
any premium, if any, and interest, including any Additional Interest (to the


 





















 


extent
legally enforceable), on this Security at the times, place and rate and in the
coin or currency herein prescribed.


 


As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Securities Register upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar and duly executed by,
the Holder hereof or such Holder’s attorney duly authorized in writing and,
thereupon, one or more new Securities of like tenor of authorized denominations
and for the same aggregate principal amount will be issued to the designated
transferee or transferees.


 


The Securities are issuable only in registered form
without coupons in minimum denominations of $100,000 and any integral multiples
of $1,000 in excess thereof.  As provided
in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
and of like tenor of a different authorized denomination as requested by the
Holder surrendering the same.


 


No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.


 


The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.


 


The Company and, by its acceptance of this Security or
a beneficial interest herein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agree that, for United States federal,
state and local tax purposes, it is intended that this Security constitute
indebtedness.


 


This Security shall be construed and enforced in
accordance with and governed by the laws of the State of New York, without
reference to its conflict of laws provisions (other than Section 5-1401 of
the General Obligations Law).