Exhibit (10.15)
Amended and Restated Common Stock Purchase Agreement
between Provident Companies, Inc.
and Zurich Insurance Company dated as of May 31, 1996
(attached)
AMENDED AND RESTATED
COMMON STOCK
PURCHASE AGREEMENT
between
PROVIDENT COMPANIES, INC.
and
ZURICH INSURANCE COMPANY
Dated as of May 31, 1996
TABLE OF CONTENTS
Page
SECTION 1. THE SHARES...................................................... 2
Section 1.1. Issuance, Sale and Purchase of the Shares.......... 2
Section 1.2. Closing............................................ 2
Section 1.3. Further Action..................................... 2
Section 1.4. Anti-Dilution Provisions........................... 2
SECTION 2. REPRESENTATIONS AND WARRANTIES.................................. 3
Section 2.1. Representations and Warranties of the Company...... 3
Section 2.1.1. Organization, Good Standing and Qualification...... 3
Section 2.1.2. Authorization, Enforceability...................... 4
Section 2.1.3. No Conflict........................................ 4
Section 2.1.4. Capitalization..................................... 5
Section 2.1.5. Valid Issuance of Securities....................... 6
Section 2.1.6. Litigation......................................... 6
Section 2.1.7. Consents........................................... 6
Section 2.1.8. Compliance with Law and Other Instruments.......... 7
Section 2.1.9. SEC Documents; Financial Statements................ 7
Section 2.1.10. Absence of Certain Changes or Events............... 9
Section 2.1.11. No Regulatory Disqualifications.................... 9
Section 2.1.12. Registration Rights................................ 9
Section 2.1.13. Acquisition Agreements............................. 9
Section 2.1.14. Rating Agency......................................10
Section 2.1.15. Brokers............................................10
Section 2.1.16. Environmental Protection...........................10
Section 2.1.17. Delaware Law.......................................11
Section 2.1.18. Incorporation of Representations and Warranties
from the Merger Agreement........................11
Section 2.2. Representations, Warranties and Covenants
of the Purchaser ................................12
Section 2.2.1. Organization.......................................12
Section 2.2.2. Authorization......................................12
Section 2.2.3. Purchase for Investment............................12
Section 2.2.4. Restricted Securities..............................12
Section 2.2.5. No Regulatory Disqualifications....................13
Section 2.2.6. Purchaser Information..............................13
Section 2.2.7. Consents...........................................13
Section 2.2.8. Brokers............................................14
SECTION 3. CERTAIN AGREEMENTS OF THE PARTIES...............................14
Section 3.1. Conduct of Business of the Company.................14
Section 3.2. Covenants of the Purchaser.........................16
Section 3.3. Proxy Statement; Stockholder Approval..............17
Section 3.4. Approvals, Etc.....................................17
Section 3.5. Exclusivity........................................17
Section 3.6. Publicity .........................................17
Section 3.7. Modification of Other Agreements...................17
Section 3.8. Exchange Listing...................................18
Section 3.9. Investigation and Confidentiality..................18
Section 3.10. State Takeover Laws; Charter Provisions............18
Section 3.11. Use of Proceeds....................................19
Section 3.12. Marketing Agreement................................19
Section 3.13. Restrictive Agreements Prohibited..................19
SECTION 4. CLOSING CONDITIONS .............................................19
Section 4.1. Conditions to Obligation of Purchaser..............19
Section 4.1.1. Representations and Warranties Complete
and Correct......................................19
Section 4.1.2. Compliance with this Agreement.....................19
Section 4.1.3. Officers' Certificate..............................19
Section 4.1.4. Consents; Etc......................................20
Section 4.1.5. Supporting Documents...............................20
Section 4.1.6. HSR Act............................................20
Section 4.1.7. Merger Closing.....................................20
Section 4.1.8. Other Agreements...................................20
Section 4.1.9. Material Adverse Change............................21
Section 4.1.10. Illegality, Etc....................................21
Section 4.1.11. Stockholder Approval...............................21
Section 4.1.12. Exchange Listing...................................21
Section 4.1.13. Financing of Cash Payments in Merger...............21
Section 4.1.14. Maclellan Family Agreement.........................21
Section 4.1.15. Legal Opinions ....................................21
Section 4.2. Conditions to the Obligations of the Company.......21
Section 4.2.1. Compliance with the Agreement......................22
Section 4.2.2. Purchaser's Representations and Warranties
Complete and Correct.............................22
Section 4.2.3. Officer's Certificate..............................22
Section 4.2.4. Consents; Etc......................................22
Section 4.2.5. HSR Act............................................22
Section 4.2.6. Merger Closing.....................................22
Section 4.2.7. Illegality, Etc....................................22
Section 4.2.8. Stockholder Approval...............................22
Section 4.2.9. Exchange Listing...................................23
Section 4.2.10. Financing of Cash Payments in Merger...............23
Section 4.2.11. Legal Opinions.....................................23
SECTION 5. TERMINATION ....................................................23
Section 5.1. Termination........................................23
Section 5.2. Effect of Termination..............................24
Section 5.3. Termination Fee....................................24
SECTION 6. MISCELLANEOUS...................................................24
Section 6.1. Expenses and Indemnification.......................24
Section 6.2. Survival of Agreements.............................26
Section 6.3. Parties in Interest................................26
Section 6.4. Notices............................................26
Section 6.5. Governing Law......................................27
Section 6.6. Entire Agreement...................................27
Section 6.7. Counterparts.......................................27
Section 6.8. Amendments.........................................27
Section 6.9. Severability.......................................28
Section 6.10. Titles and Subtitles...............................28
Section 6.11. Further Assurances.................................28
Exhibit 1 Terms for Marketing Agreement
Exhibit 2 Certificate of Incorporation
Exhibit 3 By-laws
Exhibit 4 Amended and Restated Family
Stockholders Agreement
Exhibit 5 Form of Opinion of Company Counsel
Exhibit 6 Form of Opinion of Purchaser's
Counsel
AMENDED AND RESTATED COMMON STOCK PURCHASE AGREEMENT
dated as of May 31, 1996 between Provident Companies, Inc., a
Delaware corporation (the "Company"), and Zurich Insurance
Company, a Swiss corporation ("Zurich" and, solely for purposes
of the provisions of this Agreement relating to the rights of the Purchaser
hereunder, together with such affiliates of Zurich as Zurich may designate in
accordance with Section 1.1 hereof, collectively the "Purchaser").
RECITALS:
WHEREAS, on May 31, 1996 the parties hereto signed the
original Common Stock Purchase Agreement and such parties desire
to amend and restate such Agreement as of such date; and
WHEREAS, this Amended and Restated Common Stock
Purchase Agreement is being executed on November 27, 1996 as of
May 31, 1996; and
WHEREAS, the Company wishes to issue and sell to the Purchaser
an aggregate of 9,523,810 shares (the "Shares") of the authorized but unissued
common stock, par value $1.00 per share (the "Common Stock"), of the Company;
and
WHEREAS, the Purchaser wishes to purchase the Shares on the
terms and subject to the conditions set forth in this Agreement; and
WHEREAS, the purchase and sale of the Shares is intended to be
consummated in connection with, and contingent upon, the acquisition by the
Company of all the outstanding common stock of The Paul Revere Corporation
("Revere") through a merger transaction (the "Merger"), all pursuant to an
Amended and Restated Agreement and Plan of Merger, entered into as of November
5, 1996, and dated as of April 29, 1996, between the Company, Patriot
Acquisition Corporation and Revere (as the same may be amended or supplemented
in accordance with the terms of this Agreement, the "Merger Agreement"); and
WHEREAS, in connection with the execution and delivery of this
Agreement, the Company and the Purchaser are entering into (i) an Amended and
Restated Registration Rights Agreement dated as of May 31, 1996 (as the same may
be amended or supplemented from time to time, the "Registration Agreement")
providing for certain rights in favor of the Purchaser with respect to the
registration of the Shares under the federal securities laws and (ii) an Amended
and Restated Relationship Agreement dated as of May 31, 1996 (as the same may be
amended or supplemented from time to time, the "Relationship Agreement")
providing for certain agreements with respect to Shares acquired hereunder; and
WHEREAS, on or prior to the Closing Date (as defined in
Section 1.2) the Company and the Purchaser will enter into a Marketing Agreement
(as the same may be amended or supplemented from time to time, the "Marketing
Agreement") relating to a proposed strategic relationship between the Purchaser
and its affiliates and the Company, which agreement shall include the terms set
forth on Exhibit 1 (the Marketing Agreement, the Registration Agreement and the
Relationship Agreement are referred to herein collectively as the "Ancillary
Agreements").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement, the parties agree as follows:
SECTION 1. THE SHARES
Section 1.1. Issuance, Sale and Purchase of the Shares. In
reliance upon the representations and warranties made herein and subject to the
satisfaction or waiver of the conditions set forth herein, the Company agrees to
issue and sell to the Purchaser (and/or such affiliates (as defined in the
Relationship Agreement) of the Purchaser as it may designate in writing to the
Company prior to the Closing (as defined below)), and the Purchaser agrees to
purchase (or to cause such affiliates to purchase) from the Company 9,523,810
Shares, for a purchase price of $31.50 per Share, or an aggregate purchase price
equal to $300,000,000.
Section 1.2. Closing. The closing shall take place at the
offices of Skadden, Arps, Slate, Meagher & Flom, One Beacon Street, Boston,
Massachusetts, on the date the Merger becomes effective in accordance with the
terms and conditions of the Merger Agreement, or at such other location, date
and time as may be agreed upon between the Purchaser and the Company (such
closing being called the "Closing" and such date and time being called the
"Closing Date"). At the Closing, the Company shall issue and deliver to the
Purchaser (or its affiliates), a stock certificate or certificates in definitive
form, registered in the name of the Purchaser (or such affiliates), representing
the Shares being purchased at the Closing. As payment in full for the Shares
being purchased under this Agreement, and against delivery of the stock
certificate or certificates therefor on the Closing Date, the Purchaser shall
(or shall cause its affiliates to) wire transfer in accordance with the
Company's instructions funds in the amount of $300,000,000.
Section 1.3. Further Action. During the period from the date
hereof to the Closing Date, each of the Company and the Purchaser shall use all
reasonable efforts to take all action necessary or appropriate to satisfy the
closing conditions contained in Section 4 hereof and to cause its respective
representations and warranties contained in Section 2 to be complete and correct
in all material respects as of the Closing Date, after giving effect to the
transactions contemplated by this Agreement, as if made on and as of such date.
Section 1.4. Anti-Dilution Provisions. In the event the
Company changes the number of shares of Common Stock issued and outstanding
prior to the Closing as a result of a stock split, stock dividend, or
similar recapitalization with respect to such stock and the
record date therefor (in the case of a stock dividend) or the effective date
thereof (in the case of a stock split or similar recapitalization for which a
record date is not established) shall be prior to the Closing, the number of
Shares to be purchased and the purchase price per Share shall be
proportionately adjusted, without any corresponding adjustment to the
aggregate purchase price for the Shares.
SECTION 2. REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company.
The Company represents and warrants to the Purchaser as follows:
Section 2.1.1. Organization, Good Standing and Qualification.
(a) Each of the Company and each of its subsidiaries (the "Company
Subsidiaries") is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
requisite power and authority under such laws to own or lease and operate its
properties and to carry on its business as now conducted. Each of the Company
and each of the Company Subsidiaries is duly qualified or licensed to do
business as a foreign corporation in good standing in each jurisdiction in which
the nature of the business transacted by it or the character of the properties
owned or leased by it requires it to so qualify or be licensed, except where the
failure to so qualify or be licensed or be in good standing would not (i) have a
material adverse effect on the results of operations, assets, liabilities or
financial condition of the Company and the Subsidiaries considered as a single
enterprise or (ii) impair in any material respect the ability of the Company to
perform any of its obligations or agreements hereunder or under the Ancillary
Agreements or consummate the transactions contemplated hereby or thereby
(collectively, a "Material Adverse Effect"). Subject to the requisite approvals
of the Company's stockholders as described in Section 2.1.2, the Company has the
corporate power and authority to execute, deliver and perform this Agreement and
the Ancillary Agreements, and to issue, sell and deliver the Shares.
(b) The Company conducts its insurance operations through
Provident Life and Accident Insurance Company, Provident National Assurance
Company and Provident Life and Casualty Insurance Company (collectively, the
"Company Insurance Subsidiaries"). Except as disclosed in Schedule 2.1.1, each
of the Company Insurance Subsidiaries is (i) duly licensed or authorized as an
insurance company in its jurisdiction of incorporation, (ii) duly licensed or
authorized as an insurance company in each other jurisdiction where it is
required to be so licensed or authorized, and (iii) duly authorized in its
jurisdiction of incorporation and each other applicable jurisdiction to write
each line of business reported as being written in the Company SAP Statements
(as hereinafter defined), except, in any such case, where the failure to be so
licensed or authorized is not reasonably likely to result in a Material
Adverse Effect.
(c) Except for the Company Subsidiaries (including
Revere after consummation of the Merger) and as set forth in the 1995 SAP
Statements or in Schedule 2.1.1, the Company does not directly or indirectly
own any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for any equity or similar interest in, any
corporation, partnership, joint venture or other business association or
entity that directly or indirectly conducts any activity which is material to
the Company.
Section 2.1.2. Authorization, Enforceability. Except for the
affirmative vote of a majority of the votes cast by holders of shares of Common
Stock present in person or represented by proxy at the Stockholders' Meeting (as
defined in Section 3.3) (provided that the votes cast by such holders constitute
a majority of the votes entitled to be cast by holders of the outstanding shares
of Common Stock) to authorize the issuance of the Shares hereunder and the
shares of Common Stock to be issued under the Merger Agreement and except for
the affirmative vote of the holders of sixty-six and two thirds percent of the
shares of Common Stock outstanding with respect to the Charter Amendment (as
defined in Section 5.3 of the Merger Agreement), all corporate action on the
part of the Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the Ancillary
Agreements, the performance of all obligations of the Company hereunder and
thereunder and the authorization, issuance, sale and delivery of the Shares has
been taken. This Agreement, the Registration Agreement and the Relationship
Agreement have been (and the Marketing Agreement, when executed and delivered,
will be) duly authorized, executed and delivered by the Company and constitute
(and, in the case of the Marketing Agreement, when executed and delivered, will
constitute) the valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether enforcement is sought by proceedings in
equity or at law).
Section 2.1.3. No Conflict. The execution and delivery by the
Company of this Agreement and the Ancillary Agreements, the performance by the
Company of its obligations hereunder and thereunder, the issuance, sale and
delivery of the Shares, will not violate any provision of (i) the Amended and
Restated Certificate of Incorporation, as amended or supplemented
(the "Certificate of Incorporation"), or By-laws, as amended (the "By-laws"), of
the Company, or (ii) any law or any order of any court or other agency of
government, or conflict with, result in a breach of or constitute (with notice
or lapse of time or both) a default under any indenture, agreement or other
instrument by which the Company or any of its properties or assets is bound, or
result in the creation or imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever known to the Company upon any of the
properties or assets of the Company, except for violations, conflicts, breaches
or defaults which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect. True and correct copies of the Certificate
of Incorporation and By-laws, as in effect on the date hereof, are attached
hereto as Exhibits 2 and 3, respectively.
Section 2.1.4. Capitalization. (a) The authorized capital
stock of the Company consists of (i) 25,000,000 shares of Preferred Stock, par
value $1.00 per share (the "Preferred Stock"), which may be issued in series;
and (ii) 65,000,000 shares of Common Stock. As of the Closing Date, assuming the
Charter Amendment is approved by the Company's stockholders, the authorized
number of shares of Common Stock will be increased to at least 75,000,000
shares.
(b) As of April 29, 1996, there were issued and
outstanding (i) 45,465,135 shares of Common Stock, (ii) 1,041,667 shares of
8.10% Cumulative Preferred Stock, evidenced by depositary receipts for 6,250,002
depositary shares each representing a one-sixth interest in one share of the
8.10% Cumulative Preferred Stock, and (iii) options to purchase 1,837,145 shares
of Common Stock under the Company's Stock Option Plan of 1994, as amended (the
"1994 Plan") out of a total of 3,500,000 options authorized to be issued under
the 1994 Plan. As of the Closing Date (and after giving effect to the Merger and
the transactions contemplated by this Agreement), there will be outstanding
67,540,281 shares of Common Stock (not including shares of Common Stock issued
pursuant to the exercise of options granted under the 1994 Plan and assuming
12,492,617 shares of Common Stock are issued to stockholders of Revere by virtue
of the Merger).
(c) Except as set forth in Schedule 2.1.4 or as provided
in this Agreement and the Merger Agreement, there are not outstanding any
options, warrants, rights (including conversion, exchange or preemptive rights)
or agreements or commitments, orally or in writing, for the purchase or
acquisition from the Company of any shares of its capital stock.
(d) Except as set forth in Schedule 2.1.4, the Company
has no obligation (contingent or other) to purchase, redeem or otherwise acquire
any of its equity securities or any interest therein or to pay any dividend
(other than cumulative dividends on the 8.10% Cumulative Preferred Stock in
accordance with the terms thereof) or make any other distribution in respect
thereof.
Section 2.1.5. Valid Issuance of Securities. (a) The
Shares, when issued, sold and delivered in accordance with the terms hereof
for the consideration expressed herein, will be duly authorized, validly
issued, fully paid and nonassessable.
(b) The outstanding shares of Common Stock and 8.10%
Cumulative Preferred Stock are, and the shares of Common Stock issuable pursuant
to the Merger Agreement will be when issued, duly authorized, validly issued,
fully paid and nonassessable.
(c) The issuance, sale and delivery of the Shares is not
subject to any preemptive right of stockholders of the Company arising under law
or the Certificate of Incorporation or By-laws or to any contractual right of
first refusal or other right in favor of any person.
Section 2.1.6. Litigation. There is no action, suit,
proceeding or investigation pending or, to the knowledge of the Company,
currently threatened against the Company or any of the Company Subsidiaries that
questions the validity of this Agreement or any of the Ancillary Agreements or
the right of the Company to enter into, or to consummate, the transactions
contemplated hereby or thereby, or that is reasonably likely, either
individually or in the aggregate, to have a Material Adverse Effect, nor does
the Company have knowledge that there is any basis for any of the foregoing. The
Company is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality that specifically names the Company, any of the Company
Subsidiaries and as to which either compliance or noncompliance is reasonably
likely to have a Material Adverse Effect. Except as set forth on Schedule 2.1.6,
there is no action, suit, proceeding or investigation by the Company or any of
the Company Subsidiaries currently pending or which the Company or any Company
Subsidiary intends to initiate that is material to the operations of the Company
and the Company Subsidiaries considered as a whole.
Section 2.1.7. Consents. Assuming the accuracy of the
representations and warranties of the Purchaser set forth in this Agreement,
except as set forth on Schedule 2.1.7, no consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority, agency or body or any other person on
the part of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement and the Ancillary Agreements, except
for (i) required blue sky filings, if any, which will be effected in accordance
with such laws, (ii) filings required under the Securities Act of 1933 (the
"Securities Act") in connection with the Registration Agreement, (iii) the
filing of a Pre-Merger Notification Form and related
documents under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(the "HSR Act"), (iv) the filing of appropriate documents with, and the
approval of, the Superintendent of Insurance of the State of New York and
the Commissioners of Insurance of the Commonwealth of Massachusetts, the
States of Delaware and Tennessee and any other state or jurisdiction in which
the Company or any of the Company Insurance Subsidiaries is domiciled or does
business (the "Insurance Regulators") for the issuance of the Shares to the
Purchaser, (v) such consents, approvals, notices or waivers as may be required
under the law of Canada or any of the provinces thereof; (vi) the approval of
the NYSE (as defined in Section 3.8) for the listing of the Shares on the NYSE,
subject to official notice of issuance; and (vii) such consents, approvals,
orders, authorizations, registrations, qualifications, designations,
declarations or filings which if not obtained or made, as the case may be, are
not reasonably likely to have a Material Adverse Effect.
Section 2.1.8. Compliance with Law and Other Instruments. The
Company and the Company Subsidiaries are not in conflict with, or in default or
violation of, (i) any law, rule, regulation, order, judgment or decree
applicable to any of them or by which any of their property or assets is bound
or affected, or (ii) any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which any
of them is a party or by which the Company or any of the Company Subsidiaries or
any of their property or assets is bound or affected, except for any such
conflicts, defaults or violations that are not reasonably likely, individually
or in the aggregate, to have a Material Adverse Effect.
Section 2.1.9. SEC Documents; Financial Statements. Except
as set forth in Schedule 2.1.9:
(a) There are no agreements, understandings or proposed
transactions between the Company or any of the Subsidiaries and any of
their respective officers, directors or affiliates, or
any affiliate thereof, of a type that would be required to be disclosed on
Form 10-K for the year ending on December 31, 1995 other than the agreements,
understandings or proposed transactions disclosed in the SEC Documents (as
hereinafter defined).
(b) The Company has timely filed all reports required to be
filed by it with the SEC since January 1, 1994 pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the rules and
regulations thereunder. The Company has provided the Purchaser with copies of
(i) the Company's annual reports on Form 10-K for the years ended December 31,
1994 and 1995, (ii) the Proxy Statement filed by the Company with the SEC on
April 1, 1996 with respect to the Annual Meeting of Stockholders of the Company
held on May 1, 1996 and (iii) the Company's quarterly report on Form 10-Q for
the quarter ended March 31, 1996 (collectively, together with any other reports
or filings made by the Company since January 1, 1994 or which are made after the
date hereof and on or prior to the Closing Date with the SEC pursuant to the
requirements of the Securities Act or the Exchange Act or the rules and
regulations thereunder, including, without limitation, the Registration
Statement and the Proxy Statement (as those terms are defined in Section 2.2.6),
the "SEC Documents"). As of their respective dates, the SEC Documents complied
(or, as to SEC Documents filed after the date hereof, will comply) in all
material respects with the requirements of the Exchange Act, the Securities Act
and the rules and regulations of the SEC promulgated thereunder. Except to the
extent that information contained in any SEC Document has been revised or
superseded by a later filed SEC Document (which was filed prior to the date of
this Agreement), none of the SEC Documents contains (or, as to SEC Documents
filed after the date hereof, will contain) any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Registration Statement will not,
at the time it becomes effective, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading. The Proxy
Statement will not, at the time of the mailing of the Proxy Statement to the
Company's stockholders (or, in the case of any amendment or supplement thereto,
at the time of mailing of such amendment or supplement, as the case may be) and
at the time of the Stockholders' Meeting and at the Effective Time (as defined
in the Merger Agreement) contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(c) The financial statements of the Company included in the
SEC Documents comply (or, as to SEC Documents filed after the date hereof, will
comply) as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with generally accepted accounting
principles, except, in the case of unaudited statements as permitted by Form
10-Q, applied on a consistent basis during the periods involved and fairly
present the consolidated financial position of the Company and its subsidiaries
as of the date thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). Except as set forth in the SEC Documents,
neither the Company nor any of the Company Subsidiaries has any material
liabilities or obligations which, individually or in the aggregate, are
reasonably likely to have a Material Adverse Effect.
(d) Each Company Insurance Subsidiary has filed all annual or
quarterly statements, together with all exhibits and schedules thereto, required
to be filed or submitted to the appropriate regulatory authorities of the
jurisdiction in which it is domiciled on forms prescribed or permitted by such
authority (the "SAP Statements"). The financial statements included in the SAP
Statements, including the notes thereto, have been prepared in all material
respects in accordance with accounting practices prescribed or permitted by
applicable state regulatory authorities in effect as of the date of the
respective statements (and such accounting practices have been applied on a
consistent basis throughout the periods involved, except as expressly set forth
in the notes or schedules thereto), and present fairly the respective statutory
financial position and results of operation of each of the Company Insurance
Subsidiaries as of their respective dates and for the respective periods
prescribed therein.
Section 2.1.10. Absence of Certain Changes or Events. Except
as disclosed in the SEC Documents, or as set forth in Schedule 2.1.10 or as a
consequence of, or as contemplated by, this Agreement or the Merger Agreement,
since March 31, 1996, (i) the business of the Company has been carried on only
in the ordinary and usual course, (ii) there has not occurred any change which
has resulted or is reasonably likely to result in a Material Adverse Effect and
(iii) neither the Company nor any Company Subsidiary has taken any action of the
type described in clauses (g), (h), (i) or (j) of Section 3.1.
Section 2.1.11. No Regulatory Disqualifications. To the
knowledge of the Company, no event has occurred or condition exists or, to the
extent it is within the reasonable control of the Company, will occur or exist
with respect to the Company that, in connection with obtaining any approvals
from any Insurance Regulator required in connection with the transactions
contemplated by this Agreement or the Merger Agreement, would cause the Company
or any Company Subsidiary to fail to satisfy on its face any applicable statute
or written regulation of any Insurance Regulator, which is reasonably likely to
adversely affect the Company's ability to consummate the transactions
contemplated hereby or thereby.
Section 2.1.12. Registration Rights. Except for the
Registration Agreement, the registration rights granted pursuant to the
Registration Rights Agreement, dated April 29, 1996, between the Company and
Textron Inc. and the registration rights agreement with members of the Family
Group (as defined in the Registration Agreement), the Company has not granted or
agreed to grant any registration rights, including piggyback rights, to any
person or entity.
Section 2.1.13. Acquisition Agreements. True and correct
copies of (i) the Merger Agreement and any agreements executed by the Company
(or any of its affiliates) and Revere in connection therewith (the "Merger
Documents") and (ii) any agreement, letter of intent, commitment letter or
similar agreement or document relating to any financing proposed to be incurred
by the Company in connection with the Merger, other than this Agreement and the
Ancillary Agreements (the "Company Financing Agreements"), have been furnished
to the Purchaser.
Section 2.1.14. Rating Agency. From December 31, 1995 through
the date hereof, except as disclosed on Schedule 2.1.14, no rating agency has
(i) imposed conditions (financial or otherwise) on retaining any rating assigned
to the Company or any Company Insurance Subsidiary or (ii) threatened to
downgrade any rating assigned to the Company or any Company Insurance
Subsidiary.
Section 2.1.15. Brokers. Other than its financial advisor,
Goldman, Sachs & Company, the Company has not employed any investment banker,
broker, finder, or intermediary in connection with the sale of the Shares, and
the Company is under no obligation to pay any investment banking, brokerage,
finder's or similar fee or commission in connection with such transactions,
other than certain fees payable to Goldman, Sachs & Company, which fees are the
obligation of the Company.
Section 2.1.16. Environmental Protection. (a) For
purposes of this Section 2.1.16, the following terms shall be defined as
follows:
"Environmental Laws" means any federal, state or local
statute, code, ordinance, rule, regulation, permit, consent, approval, license,
judgment, order, writ, decree, injunction or other authorization and any
amendments thereto, relating to:
(i) emissions, discharges, release or threatened releases of
pollutants, contaminants or hazardous or toxic materials or wastes into
indoor or ambient air, surface water, ground water, publicly owned
treatment works, septic systems or land;
(ii) the treatment, storage, disposal, handling,
manufacturing, transportation, or shipment of Hazardous Water or
hazardous and/or toxic wastes, material, substances, products or
by-products as defined in the Comprehensive Environmental Response
Compensation and Liability Act as amended by the Superfund Amendments
and Reauthorization Act, as amended, 42 U.S.C. ss. 9601 et seq.; the
Resource Conservation Recovery Act, as amended, 42 U.S.C. ss. 6901 et
seq. and the Toxic Substances Control Act, as amended, 15 U.S.C. ss.
2601 et seq. as amended from time to time and corresponding state
legislation and all regulations promulgated thereunder; or
(iii) otherwise relating to the pollution or protection of
health or the environment; and
"Hazardous Waste" (a) means any chemical substance or
material including, but not limited to wastes, petroleum and petroleum-derived
substances, asbestos, urea formaldehyde foam insulation, transformer equipment
containing dielectric fluid with levels of polychlorinated biphenyls, radon gas,
radioactive materials or other pollutants or contaminants which have the
characteristic of hazardous waste as set forth in or which are now or hereafter
included or regulated by the Clean Water Act, 33 U.S.C. ss. 1251 et seq.; the
Clear Act, as amended, 42 U.S.C. ss. 7401, et seq.; the Federal Water Pollution
Control Act, as amended, 33 U.S.C. ss. 1251 et seq.; CERCLA; RCRA; and TSCA.
(b) The Company and the Company Subsidiaries are not in
violation of any Environmental Laws, other than such violations which have not
had and are reasonably expected not to have a Material Adverse Effect and have,
and are in compliance with all terms and conditions of, all permits, licenses
and authorizations necessary for the conduct of their respective businesses,
other than such instances of non-compliance which are not reasonably likely to
have a Material Adverse Effect.
(c) Except as set forth on Schedule 2.1.16, there is no site
which is listed on either the National Priorities List pursuant to CERCLA or a
similar state or local law list with respect to which the Company has received
notice from the United States Environmental Protection Agency or a state or
local agency that the Company is considered to be a potentially responsible
party by reason of arranging for disposal, owning or operating any facility or
site or transporting any Hazardous Waste.
Section 2.1.17. Delaware Law. The Company has elected not to
be governed by the provisions of Section 203 of the Delaware General Corporation
Law ("DGCL") and such election is effective as of the date hereof and such
Section 203 (a) is not applicable to the transactions contemplated hereby and by
the Ancillary Agreements and (b) will not be applicable to any future
transactions between the Company, on the one hand, and the Purchaser and/or any
of its affiliates, on the other hand. The Company has taken all action so that
the entering into of this Agreement and the consummation of the sale of the
Shares and the other transactions contemplated by this Agreement do not and will
not result in the grant of any rights to any person under the Certificate of
Incorporation, By-laws or other governing instruments of the Company or restrict
or impair the ability of the Purchaser to vote, or otherwise to exercise the
rights of a stockholder with respect to, shares of the Company that may be
directly or indirectly acquired or controlled by the Purchaser.
Section 2.1.18. Incorporation of Representations and
Warranties from the Merger Agreement. Without qualifying any of the other
representations and warranties set forth in this Agreement, the representations
and warranties of the Company set forth in Sections 5.3, 5.4, 5.9, 5.11, 5.12,
5.13, 5.14, 5.16, 5.17, 5.18, 5.19 and 5.20 of the Merger Agreement (including
any related definitions) shall be deemed to be incorporated by reference herein
as if fully set forth herein.
Section 2.2. Representations, Warranties and Covenants of
the Purchaser. The Purchaser represents and warrants to the Company that:
Section 2.2.1. Organization. The Purchaser is a
corporation duly organized and validly existing under the laws of Switzerland.
Section 2.2.2. Authorization. The Purchaser has full power and
authority to enter into this Agreement and the Ancillary Agreements. Each of
this Agreement, the Registration Agreement and the Relationship Agreement
constitute (and the Marketing Agreement, when executed and delivered, will
constitute) its valid and legally binding obligation, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether enforcement is sought by proceedings in equity or at law).
Section 2.2.3. Purchase for Investment. The Shares will be
acquired for investment for the Purchaser's (or its affiliates') own account and
not with a view to the resale or distribution of any part thereof, except in
compliance with the provisions of the Securities Act or an exemption therefrom.
Section 2.2.4. Restricted Securities. The Purchaser
understands that the Shares are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the Company
in a transaction not involving a public offering and that under such laws and
applicable regulations such shares may be resold without registration under the
Securities Act only in certain limited circumstances.
The Purchaser further agrees that each certificate representing the
Shares shall be stamped or otherwise imprinted with a legend substantially in
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE (I) HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN
REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION
IS AVAILABLE, AND (II) ARE SUBJECT TO THE PROVISIONS OF A
RELATIONSHIP AGREEMENT, DATED AS OF MAY 31, 1996, BETWEEN
THE COMPANY AND THE PURCHASER, COPIES OF WHICH ARE ON FILE
AT THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY."
A certificate shall not bear such legend if the Purchaser shall have delivered
to the Company an opinion of counsel reasonably satisfactory to the Company to
the effect that the securities being sold may be publicly sold without
registration under the Securities Act. The foregoing shall not be deemed to
affect the obligations of the Company under the Registration Agreement.
Section 2.2.5. No Regulatory Disqualifications. To the
knowledge of the Purchaser, no event has occurred or condition exists or, to the
extent it is within the reasonable control of the Purchaser, will occur or exist
with respect to the Purchaser that, in connection with obtaining any approvals
from any Insurance Regulator required in connection with the transactions
contemplated by this Agreement, would cause the Purchaser to fail to satisfy on
its face any applicable statute or written regulation of any Insurance
Regulator, which would be reasonably likely to adversely affect the Purchaser's
ability to consummate the transactions contemplated hereby or thereby.
Section 2.2.6. Purchaser Information. None of the information
regarding the Purchaser supplied by the Purchaser in writing specifically for
inclusion in (i) the registration statement to be filed by the Company as
contemplated by Section 4.10 of the Merger Agreement (the "Registration
Statement") or (ii) the proxy statement-prospectus to be filed by the Company as
contemplated by Section 6.4 of the Merger Agreement (the "Proxy Statement")
will, in the case of the Registration Statement, at the time it becomes
effective contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or, in the case of the Proxy Statement, at
the time of the mailing of the Proxy Statement to the Company's stockholders
(or, in the case of any amendment or supplement thereto, at the time of mailing
of such amendment or supplement, as the case may be) and at the time of the
Stockholders' Meeting and at the Effective Time (as defined in the Merger
Agreement) contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
Section 2.2.7. Consents. Assuming the accuracy of the
representations and warranties of the Company set forth in this Agreement, no
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any governmental authority, agency or
body or any other person on the part of the Purchaser is required in connection
with the consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements, except for (i) the filing of a Pre-Merger Notification
Form and related documents under the HSR Act, (ii) the filing of appropriate
documents with, and approval of, the Insurance Regulators and the Commissioners
of Insurance of any state or jurisdiction in which the Purchaser or
any of its insurance subsidiaries is domiciled or does business, (iii) such
consents, approvals, notices or waivers as may be required under the laws of
Canada or any of the provinces thereof, (iv) filings required under the
Securities Act or the Securities Exchange Act of 1934, as amended, or (v) such
consents, approvals, orders, authorizations, registrations, qualifications,
designations, declarations or filings, which if not obtained or made, as the
case may be, are not reasonably likely to impair in any material respect the
ability of the Purchaser to perform any of its obligations or agreements
hereunder or under the Ancillary Agreements or consummate the transactions
contemplated hereby or thereby.
Section 2.2.8. Brokers. Other than Donaldson, Lufkin &
Jenrette Securities Corporation, the Purchaser has not employed any
investment banker, broker, finder, or intermediary in connection with the
transactions contemplated by this Agreement, and the Purchaser is under no
obligation to pay any investment banking, brokerage, finder's or similar fee
or commission in connection with such transactions, other than certain fees
payable to Donaldson, Lufkin & Jenrette Securities Corporation, which are the
obligation of the Purchaser (except to the extent otherwise provided in
Section 6.1).
SECTION 3. CERTAIN AGREEMENTS OF THE PARTIES
Section 3.1. Conduct of Business of the Company. Except as set
forth in Schedule 3.1, from the date of this Agreement until the earlier of the
Closing or the termination of this Agreement, unless the prior written consent
of the Purchaser shall have been obtained, and except as otherwise contemplated
by this Agreement, the Company will conduct its operations according to its
ordinary and usual course of business consistent with past practice and shall
use all reasonable efforts to preserve intact its current business
organizations, keep available the service of its current officers and employees,
maintain its material permits and contracts and preserve its relationships with
customers, suppliers and others having business dealings with it. Without
limiting the generality of the foregoing, and except as otherwise contemplated
by this Agreement or as set forth in Schedule 3.1, the Company will not, without
the prior written consent of the Purchaser (which consent shall not be
unreasonably withheld):
(a) issue, sell, grant, dispose of, pledge or otherwise
encumber, or authorize or propose the issuance, sale, disposition or
pledge or other encumbrance of (i) any additional shares of capital
stock of capital stock of any class (including shares of Common Stock),
or any securities or rights convertible into, exchangeable for, or
evidencing the right to subscribe for any shares of capital stock, or
any rights, warrants, options, calls, commitments or any other
agreements of any character to purchase or acquire any shares of
capital stock or any securities or rights convertible into,
exchangeable for, or evidencing the right to subscribe for, any shares
of capital stock or (ii) any other securities in respect of, in lieu
of, or in substitution for, shares of Common Stock outstanding on the
date hereof;
(b) redeem, purchase or otherwise acquire, or propose to
redeem, purchase or otherwise acquire, any of its outstanding shares
of Common Stock;
(c) split, combine, subdivide or reclassify any shares of
Common Stock or declare, set aside for payment or pay any dividend, or
make any other actual, constructive or deemed distribution in respect
of any capital stock of the Company or otherwise make any payments to
stockholders in their capacity as such, other than the declaration and
payment of regular quarterly cash dividends on the Common Stock in an
amount no greater than $.18 per share and in accordance with past
dividend policy and except for dividends by a direct or indirect wholly
owned Company Subsidiary;
(d) adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or
other reorganization of the Company or any of the Company Subsidiaries
(other than the Merger);
(e) adopt any amendments to its Certificate of Incorporation
or Bylaws or alter through merger, liquidation, reorganization,
restructuring or in any other fashion the corporate structure or
ownership of any direct or indirect Company Subsidiary, except for
Company Subsidiaries which are not material to the assets, liabilities,
financial condition or results of operations of the Company and the
Company Subsidiaries taken as a whole;
(f) make, or permit any Company Subsidiary to make, any
material acquisition, by means of merger, consolidation or otherwise,
or material disposition, of assets or securities;
(g) other than in the ordinary course of business consistent
with past practice, incur, or permit any Company Subsidiary to incur,
any material indebtedness for borrowed money or guarantee any such
indebtedness or make any material loans, advances, or capital
contributions to, or other material investments in, any person other
than the Company or any Company Subsidiary;
(h) change any method of accounting or accounting practice by
the Company or any Company Subsidiary, except for such required change
in GAAP or applicable statutory accounting principles;
(i) permit any Company Insurance Subsidiary to materially
change its investment guidelines or policies or conduct transactions in
investments except in material compliance with the investment
guidelines and policies of such Company Insurance Subsidiary and all
applicable insurance laws;
(j) enter, or permit any Company Insurance Subsidiary to
enter, into any material reinsurance, coinsurance or similar agreement,
whether as reinsurer or reinsured, except in the ordinary course of
business consistent with past practice;
(k) (x) take, or agree or commit to take, or permit any
Company Subsidiary to take, or agree or commit to take,
any action that would make any representation and warranty of the
Company hereunder inaccurate in any material respect at the Closing
(except for representations and warranties which speak as of a
particular date, which need be accurate only as of such date), (y)
omit, or agree or commit to omit, or permit any Company Subsidiary to
omit, or agree or commit to omit, to take any action necessary to
prevent any such representation and warranty from being inaccurate in
any material respect at the Closing (except for representations and
warranties which speak as of a particular date, which need be
accurate only as of such date), provided however that the Company
shall be permitted to take or omit to take such action which can be
cured, and in fact is cured, at or prior to the Closing, or (z) any
action that would result in, or would be reasonably likely to result
in, any of the conditions set forth in Section 4 not being satisfied;
or
(l) authorize, recommend, propose or announce an intention to
do any of the foregoing, or enter into any contract, agreement,
commitment or arrangement to do any of the foregoing.
Section 3.2. Covenants of the Purchaser. Except as otherwise
contemplated by this Agreement, the Purchaser will not, without the prior
written consent of the Company, which consent shall not be unreasonably
withheld, (x) take, or agree or commit to take, any action that would make any
representation and warranty of the Purchaser hereunder inaccurate in any
material respect at the Closing (except for representations and warranties which
speak as of a particular date, which need be accurate only as of such date), (y)
omit, or agree or commit to omit, to take any action necessary to prevent any
such representation and warranty from being inaccurate in any material respect
at the Closing (except for representations and warranties which speak as of a
particular date, which need be accurate only as of such date), provided however
that the Purchaser shall be permitted to take or omit to take such action which
can be cured, and in fact is cured, at or prior to the Closing, or (z) any
action that would result in, or would be reasonably likely to result in, any of
the conditions set forth in Section 4 not being satisfied.
Section 3.3. Proxy Statement; Stockholder Approval. The
Company shall call a special meeting of its stockholders (the "Stockholders'
Meeting"), to be held as soon as reasonably practicable after the date of this
Agreement, for the purpose of voting upon approval of the sale of Shares
pursuant to this Agreement, the issuance of shares of Company Common Stock
pursuant to the Merger Agreement, the Charter Amendment (as defined in the
Merger Agreement) and such other related matters as it deems appropriate. In
connection with the Stockholders' Meeting, (i) the Company shall prepare and
file with the SEC a Proxy Statement and mail such Proxy Statement to its
stockholders, (ii) the Board of Directors of the Company shall recommend to its
stockholders the approval of the sale of Shares pursuant to this Agreement and
(subject to the terms of the Merger Agreement) the issuance of shares of Common
Stock pursuant to the Merger Agreement and the Charter Amendment and (iii) the
Board of Directors and officers of the Company shall use their reasonable
efforts to obtain such stockholders' approval (subject to the terms of the
Merger Agreement).
Section 3.4. Approvals, Etc. Subject to the terms and
conditions provided herein, each of the parties hereto agrees to (i) promptly
effect all registrations, submissions and filings, including but not limited to,
filings under the HSR Act, submissions to the Insurance Regulators and filings
required under the Registration Agreement, which may be necessary or required in
connection with the consummation of the transactions contemplated by this
Agreement and, in the case of the Company, the Merger Agreement, (ii) to use all
reasonable efforts to take all other action and to do all other things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement and, in the case of
the Company, the Merger Agreement and (iii) use all reasonable efforts to obtain
all other necessary or appropriate waivers, consents and approvals with respect
to the transactions contemplated by this Agreement and, in the case of the
Company, the Merger Agreement.
Section 3.5. Exclusivity. The Company hereby agrees that,
prior to the Closing Date, the Company shall not solicit or accept alternative
sources for the investment contemplated by this Agreement. The Company further
agrees that it will not utilize any funds or other sources of financing to
finance the Merger without first consummating the full purchase and sale
provided hereunder.
Section 3.6. Publicity. Neither the Company nor the Purchaser
shall make any public announcement concerning this Agreement or the other
transactions contemplated hereby without the prior written consent of the other,
except as may be required by law or stock exchange rule.
Section 3.7. Modification of Other Agreements. Without the
prior written consent of the Purchaser, the Company shall not amend in any
material respect any provision of, or waive any condition to the performance by
the Company or its affiliates of any of their respective obligations under, any
of the Merger Documents or the Company Financing Agreements.
Section 3.8. Exchange Listing. The Company shall as promptly
as practicable prepare and submit to the New York Stock Exchange ("NYSE") a
listing application covering the Shares, and shall use all reasonable efforts to
obtain, prior to the Closing, approval for the listing of the Shares on the
NYSE, subject to official notice of issuance.
Section 3.9. Investigation and Confidentiality. (a)
Prior to the Closing, the Company shall keep the Purchaser advised of all
material developments relevant to its business and to consummation of the
Merger and the sale of the Shares and shall permit the Purchaser to make or
cause to be made such investigation of its business and properties and of its
financial and legal condition as the Purchaser reasonably requests, provided
that such investigation shall be reasonably related to the transactions
contemplated hereby and shall not interfere unnecessarily with normal
operations. The Purchaser agrees that it will not, and will cause its
officers, employees and agents not to, use any information obtained pursuant
to this Section 3.9 for any purpose unrelated to the performance of the
obligations under, or the consummation of the transactions contemplated by,
this Agreement or the Ancillary Agreements.
(b) The Purchaser agrees that the Confidentiality
Agreement, dated December 3, 1995, by and between Provident Life and Accident
Insurance Company of America and Centre ReSource Limited (the "Confidentiality
Agreement"), shall be binding upon the Purchaser and shall apply with respect to
information furnished by the Company or any of its Subsidiaries, or any of their
respective officers, employees, counsel, accountants and other authorized
representatives hereunder.
(c) Notwithstanding the provisions hereof, during the period
prior to the Closing Date, the parties shall take appropriate precautions to
ensure that competitively sensitive information is not exchanged in a manner
which is inconsistent with applicable law.
Section 3.10. State Takeover Laws; Charter Provisions. Each of
the Company and the Company Subsidiaries shall take all necessary action to
ensure that the entering into of this Agreement and the consummation of the sale
of the Shares and the other transactions contemplated hereby do not and will not
result in the grant of any rights to any Person under the Certificate of
Incorporation, Bylaws or other governing instruments of the Company or restrict
or impair the ability of the Purchaser to vote, or otherwise to exercise the
rights of a stockholder with respect to, shares of the Company that may be
directly or indirectly acquired or controlled by the Purchaser.
Section 3.11. Use of Proceeds. The proceeds from the sale of
the Shares shall be used to fund payments required to be made by the Company in
connection with the Merger.
Section 3.12. Marketing Agreement. The parties hereto agree to
negotiate in good faith, and execute prior to the Closing, the Marketing
Agreement, which agreement shall (i) be effective as of the Closing, (ii) have
terms consistent with the summary of terms attached hereto as Exhibit 1 and
(iii) have such other terms as the parties may agree to.
Section 3.13. Restrictive Agreements Prohibited. The
Company shall not become a party to any agreement which by its terms violates
the terms of this Agreement or any of the Ancillary Agreements.
SECTION 4. CLOSING CONDITIONS
Section 4.1. Conditions to Obligation of Purchaser. The
obligation of the Purchaser to purchase the Shares shall be subject to its
satisfaction or waiver of the following conditions on or before the Closing
Date:
Section 4.1.1. Representations and Warranties Complete and
Correct. The representations and warranties of the Company contained in Section
2.1 hereof which are qualified as to materiality or a Material Adverse Effect
shall have been true and correct when made and shall be true and correct at and
as of the Closing Date, after giving effect to the transactions contemplated by
this Agreement and the Merger Agreement, as if made on and as of such date
(except for representations and warranties which are confined to a specified
date, which shall be true and correct as of such date). The representations and
warranties of the Company contained in Section 2.1 hereof which are not
qualified as to materiality or a Material Adverse Effect shall have been true
and correct in all material respects when made and shall be true and correct in
all material respects at and as of the Closing Date, after giving effect to the
transactions contemplated by this Agreement and the Merger Agreement, as if made
on and as of such date (except for representations and warranties which are
confined to a specified date, which shall be true and correct in all material
respects as of such date).
Section 4.1.2. Compliance with this Agreement. The Company
shall have performed and complied in all material respects with all agreements,
covenants and conditions contained herein which are required to be performed or
complied with by it on or before the Closing Date.
Section 4.1.3. Officers' Certificate. The Purchaser shall have
received a certificate, dated the Closing Date and signed by the President or
any Vice President and attested by the Secretary of the Company, certifying that
the conditions set
forth in Sections 4.1.1 and 4.1.2 are satisfied on and as of
such date.
Section 4.1.4. Consents; Etc. The Company shall have received
all consents, approvals and other authorizations that may be required from, and
made all such filings and declarations that may be required with, any
governmental authority or agency pursuant to any law, statute, regulation or
rule (federal, state, local and foreign), or pursuant to any agreement, order or
decree by which the Company or any of its assets is bound, in connection with
the transactions contemplated by this Agreement.
Section 4.1.5. Supporting Documents. The Purchaser shall
have received copies of the following documents:
(i) (A) the Certificate of Incorporation, certified as of a
recent date by the appropriate authority of the Company's jurisdiction
of incorporation; and (B) a certificate of such authority dated as of a
recent date as to the due incorporation and good standing of the
Company, and listing all documents of the Company on file with said
authority; and
(ii) a certificate of the Secretary or an Assistant Secretary
of the Company dated the Closing Date and certifying: (A) that attached
thereto is a true and complete copy of the Bylaws of the Company as in
effect on the date of such certification; (B) that attached thereto is
a true and complete copy of all resolutions adopted by the Board of
Directors or the stockholders of the Company authorizing the execution,
delivery and performance of this Agreement and the Ancillary
Agreements, the issuance, sale and delivery of the Shares, and that all
such resolutions are in full force and effect and are all the
resolutions adopted in connection with the transactions contemplated by
this Agreement, the Marketing Agreement and the Registration Agreement;
(C) that the Certificate of Incorporation has not been amended since
the date of the last amendment referred to in the certificate delivered
pursuant to clause (i)(B) above; and (D) that the Bylaws have not been
amended since the date of the last amendment referred to in such
certificate pursuant to subclause (ii)(A) above.
Section 4.1.6. HSR Act. Any required waiting periods under the
HSR Act relating to the transactions to be consummated on the Closing Date shall
have expired or been terminated.
Section 4.1.7. Merger Closing. The closing under the
Merger Agreement shall have occurred or shall occur simultaneously with the
Closing hereunder.
Section 4.1.8. Other Agreements. The Company shall have
complied with all agreements required to be complied with by it on or before
the Closing Date under the Ancillary Agreements.
Section 4.1.9. Material Adverse Change. Except as disclosed in
the SEC Documents filed prior to the date hereof, or as set forth in Schedule
2.1.10 or as a consequence of, or as contemplated by, this Agreement or the
Merger Agreement, since December 31, 1995, there shall not have occurred any
change, and no additional information shall have been disclosed to the
Purchaser, which is reasonably likely to have a material adverse effect on the
financial condition, results of operations, assets or liabilities of the Company
and the Company Subsidiaries, taken as a whole, or a material adverse effect on
the financial condition, results of operations, assets or liabilities of Revere
and its subsidiaries, taken as a whole.
Section 4.1.10. Illegality, Etc. No statute, rule or
regulation, or order, decree or injunction enacted, entered, promulgated or
enforced by any court or governmental authority shall be in effect which
prohibits or restricts the consummation of the transactions contemplated hereby.
Section 4.1.11. Stockholder Approval. Each of the sale of
Shares pursuant to this Agreement, the issuance of shares of Common Stock
pursuant to the Merger Agreement and the Charter Amendment shall have been duly
approved by the stockholders of the Company entitled to vote with respect
thereto in accordance with applicable law and the Certificate of Incorporation
and Bylaws of the Company and, in the case of the issuance of shares of Common
Stock pursuant to the Merger Agreement and the sale of the Shares, the rules of
the NYSE.
Section 4.1.12. Exchange Listing. The Shares shall have been
approved for listing on the NYSE, subject to official notice of issuance.
Section 4.1.13. Financing of Cash Payments in Merger. The
Company shall have obtained financing for the aggregate cash payments to be
made to stockholders of Revere in the Merger pursuant to the Company Financing
Agreements.
Section 4.1.14. Maclellan Family Agreement. The Purchaser
shall have entered into an agreement with the members of the Maclellan family,
in form and substance substantially in the form attached hereto as Exhibit 4.
Section 4.1.15. Legal Opinions. The Purchaser shall have
received an opinion or opinions of counsel to the Company, dated as of the
Closing, covering the matters set forth in Exhibit 5.
Section 4.2. Conditions to the Obligations of the Company.
The Company's obligation to sell the Shares shall be subject to the
satisfaction or waiver by it of the following conditions on or before the
Closing Date:
Section 4.2.1. Compliance with the Agreement. The Purchaser
shall have performed and complied in all material respects with all agreements
and conditions contained herein which are required to be performed or complied
with by it on or before the Closing Date.
Section 4.2.2. Purchaser's Representations and Warranties
Complete and Correct. The Purchaser's representations and warranties contained
in Section 2.2 of this Agreement shall be true and correct in all material
respects when made and shall be true and correct in all material respects at and
as of the Closing Date, after giving effect to the transactions contemplated by
this Agreement, as if made on and as of such date.
Section 4.2.3. Officer's Certificate. The Company shall have
received a certificate, dated the Closing Date and signed by a duly authorized
officer of the Purchaser, certifying that the conditions set forth in Section
4.2.2 are satisfied on and as of such date.
Section 4.2.4. Consents; Etc. The Company shall have
received all consents, approvals and other authorizations that may be
required from, and made all such filings and declarations that may be required
with, any governmental authority or agency pursuant to any law, statute,
regulation or rule (federal, state, local and foreign), or pursuant to any
agreement, order or decree by which the Company or any of its assets is bound,
in connection with the transactions contemplated by this Agreement.
Section 4.2.5. HSR Act. Any required waiting periods under the
HSR Act relating to the transactions to be consummated on the Closing Date shall
have expired or been terminated.
Section 4.2.6. Merger Closing. The closing under the
Merger Agreement shall have occurred or shall occur simultaneously with the
Closing hereunder.
Section 4.2.7. Illegality, Etc. No statute, rule or
regulation, or order, decree or injunction enacted, entered, promulgated or
enforced by any court or governmental authority shall be in effect which
prohibits or restricts the consummation of the transactions contemplated hereby.
Section 4.2.8. Stockholder Approval. Each of the sale of
Shares pursuant to this Agreement, the issuance of shares of Common Stock
pursuant to the Merger Agreement and the Charter Amendment shall have been duly
approved by the stockholders of the Company entitled to vote with respect
thereto in accordance with applicable law and the Certificate of Incorporation
and Bylaws of the Company and, in the case of the issuance of shares of Common
Stock pursuant to the Merger Agreement and the sale of the Shares, the rules of
the NYSE.
Section 4.2.9. Exchange Listing. The Shares shall have
been approved for listing on the NYSE, subject to official notice of issuance.
Section 4.2.10. Financing of Cash Payments in Merger. The
Company shall have obtained financing for the aggregate cash payments to be made
to stockholders of Revere in the Merger pursuant to the Company Financing
Agreements.
Section 4.2.11. Legal Opinions. The Company shall have
received an opinion or opinions of counsel to the Purchaser, dated as of the
Closing, covering the matters set forth in Exhibit 6.
SECTION 5. TERMINATION
Section 5.1. Termination. This Agreement may be terminated
as follows:
(a) by mutual written consent of the Company and the
Purchaser;
(b) by either party if the Closing shall not have occurred
by May 28, 1997 (and the failure of the Closing to occur is not due to
the breach by either party of this Agreement);
(c) by either party if the Merger Agreement is terminated;
(d) by either party (provided that the terminating party is
not then in material breach of any representation, warranty, covenant or other
agreement contained in this Agreement) in the event of a breach by the other
party of any representation or warranty contained in this Agreement which
cannot be or has not been cured within 30 days after the giving of written
notice to the breaching Party of such breach and which breach would cause (i)
in the case of a breach by the Company, the conditions set forth in Section
4.1.1 not to be satisfied (assuming the Closing were to occur on the date of
such termination), and (ii) in the case of a breach by the Purchaser, the
conditions set forth in Section 4.2.2 not to be satisfied (assuming the
Closing were to occur on the date of such termination); or
(e) by either party (provided that the terminating party is
not then in material breach of any representation, warranty, covenant or other
agreement contained in this Agreement) in the event of a material breach by the
other party of any covenant or agreement contained in this Agreement which
cannot be or has not been cured within 30 days after the giving of written
notice to the breaching party of such breach; or
(f) by either party (provided that the terminating party is
not then in material breach of any representation, warranty, covenant or other
agreement contained in this Agreement) in the event any court of competent
jurisdiction in the United States or some other governmental body or regulatory
authority shall have issued an order permanently restraining, enjoining or
otherwise prohibiting the sale of the Shares and such order shall have become
final and nonappealable; provided that the party seeking to terminate this
Agreement pursuant to this Section 5.1(f) shall have used all reasonable efforts
to remove such order; or
(g) by either party, if the sale of the Shares, the issuance
of shares of Common Stock in the Merger and the Charter Amendment shall have
been voted on by stockholders of the Company and the vote shall not have been
sufficient to satisfy the conditions set forth in Sections 4.1.11 and 4.2.8.
Section 5.2. Effect of Termination. In the event of the
termination of this Agreement pursuant to Section 5.1, this Agreement shall
forthwith become void and have no effect, without any liability on the part of
any party hereto, other than the provisions of Sections 3.6, 3.9(b), 5.2, 5.3
and 6.1, which shall survive any such termination. Nothing contained in this
Section 5.2 shall relieve any party from liability for any willful breach of
this Agreement.
Section 5.3. Termination Fee. The Company hereby agrees that
if the Merger Agreement (or any similar agreement entered into by the Company
(and/or one or more of its affiliates) and Revere (or one or more of its
affiliates) which contemplates a business combination involving the Company and
Revere or sale of a majority of the equity interests or assets of the Company or
Revere to the other) is terminated and, in connection with such termination, the
Company (or any of its affiliates) receives a termination or similar fee (a
"Termination Fee"), the Company shall pay to the Purchaser, on the date a
Termination Fee is paid to the Company (or such affiliates), a cash fee in an
amount equal to 20% of the aggregate Termination Fee, payable in immediately
available funds to an account specified by the Purchaser.
SECTION 6. MISCELLANEOUS
Section 6.1. Expenses and Indemnification. (a) The Company
hereby agrees to pay or reimburse the Purchaser and its affiliates for all
out-of-pocket expenses (including the reasonable fees and disbursements of legal
counsel and investment and other advisors and consultants and expenses incurred
in connection with the preparation of the letter agreement dated April 27, 1996
(the "Commitment Letter"), this Agreement and the Ancillary Agreements) incurred
by any of them in connection with the Purchaser's consideration of various
proposed financing and other transactions between the Purchaser and/or its
affiliates and the Company and the transactions referred to herein, including,
without limitation, the transactions contemplated hereby and by the Merger
Agreement, whether incurred before or after the date hereof and whether or not
such transactions are made or effected; provided that the aggregate of such
amounts shall not exceed $1,500,000 and the Company shall not be obligated to
make such payment or reimbursement prior to the earlier of (i) the Closing Date
and (ii) termination of this Agreement. Any such amounts shall be paid or
reimbursed promptly after invoicing thereof by the Purchaser which invoicing
shall be accompanied by supporting detail evidencing such expenses.
(b) In addition to the foregoing the Company agrees to
indemnify and hold harmless the Purchaser and any of its officers, partners,
members, directors, employees and affiliates (direct or indirect) from and
against all actions, suits, proceedings (including any investigations or
inquiries), claims, losses, damages, liabilities or expenses of any kind or
nature whatsoever ("Claims") which may be incurred by or asserted against or
involve the Purchaser, or any of its officers, partners, members, directors,
employees or affiliates (direct or indirect) as a result of any third party
claim arising out of the transactions contemplated hereby and, upon demand by
the Purchaser or any such officer, partner, member, director, employee or
affiliates, pay or reimburse any of the Purchaser or such officers, partners,
members, directors, employees or affiliates for any reasonable out-of-pocket
legal or other expenses, and other internal costs incurred by the Purchaser or
its officers, partners, members, directors, employees or affiliates (direct or
indirect) in connection with the investigation, defending or preparing to defend
any such Claim, provided that the foregoing indemnity shall not apply to the
extent any Claim arises from any material breach by the Purchaser of this
Agreement or the gross negligence or willful misconduct of an indemnified party.
(c) Each person entitled to indemnification under Section
6.1(b) (each an "Indemnified Party") shall give notice to the Company promptly
after such Indemnified Party has actual knowledge of any Claim as to which
indemnity may be sought, and shall permit the Company to assume the defense of
any such Claim; provided, that counsel for the Company, who shall conduct the
defense of such Claim, shall be approved by the Indemnified Party (which
approval shall not be unreasonably withheld) and the Indemnified Party may
participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there is a conflict of interest
between the Indemnified Party and the Company in such action, in which case the
reasonable fees and expenses for one such counsel for all Indemnified Parties
(and one local counsel) shall be at the expense of the Company), and provided,
further, that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Company of its obligations under Section 6.1(b) or
this Section 6.1(c) unless the Company is materially prejudiced thereby. The
Company may not, in the defense of any such Claim, except with the consent of
each Indemnified Party (which consent shall not be unreasonably withheld or
delayed), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof thegiving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such Claim. Each Indemnified Party shall furnish such information regarding
itself or the Claim in question as the Company may reasonably request in writing
and as shall be reasonably required in connection with the defense of such
Claim.
Section 6.2. Survival of Agreements. The representations and
warranties (i) of the Company set forth in Sections 2.1.1, 2.1.2, 2.1.3, 2.1.4,
2.1.5, 2.1.7, 2.1.12, 2.1.15 and 2.1.17 hereof and (ii) of the Purchaser set
forth in Sections 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.6, 2.2.7 and 2.2.8 shall
survive the Closing indefinitely. None of the other agreements, representations
or warranties made in this Agreement, or any certificate or instrument delivered
to the Purchaser pursuant to or in connection therewith shall survive the
Closing; provided, however, that this Section 6.2 shall not limit any (x)
covenant or agreement of the parties hereto which by its terms contemplates
performance after the Closing Date or (y) rights or remedies otherwise available
to the Company or the Purchaser at law or in equity; provided, further, that the
Confidentiality Agreement shall survive any termination of this Agreement.
Section 6.3. Parties in Interest. All representations,
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not;
provided that the Purchaser shall not assign its rights to purchase shares of
Common Stock under this Agreement to any non affiliate without first obtaining
the prior written consent of the Company, which consent may be withheld by the
Company in its sole discretion.
Section 6.4. Notices. All notices, requests, consents and
other communications hereunder shall be in writing and shall be delivered in
person or mailed by certified or registered mail, return receipt requested, or
sent by facsimile transmission, addressed as follows:
(a) if to the Company:
Provident Companies, Inc.
1 Fountain Square
Chattanooga, Tennessee 37402
Attention: Chief Financial Officer
Fax No.: (423) 755-2590
with a copy to:
Alston & Bird
1201 W. Peachtree Street
Atlanta, Georgia 30309
Attention: F. Dean Copeland, Esq.
Fax No.: (404) 881-7777
(b) if to the Purchaser:
Zurich Insurance Company
Mythenquai 2
P.O. Box Ch-8022
Zurich, Switzerland
Attention: General Counsel
Fax No.: 011-411-202-1063
with copies to:
Zurich Center Resource Limited
One Chase Manhattan Plaza
New York, New York 10005
Attention: General Counsel
Fax No.: (212) 898-5002
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
Fax No.: (212) 821-8111
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or on the date
actually received, if sent by mail or telex, with receipt acknowledged.
Section 6.5. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New
York, without giving effect to conflicts of law principles thereof.
Section 6.6. Entire Agreement. This Agreement, including the
Schedules and Exhibits hereto, constitutes the sole and entire agreement of
the parties with respect to the subject matter hereof. All Schedules and
Exhibits hereto are hereby incorporated herein by reference. The Commitment
Letter shall hereby be deemed to be terminated.
Section 6.7. Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.8. Amendments. This Agreement may not be amended
or modified, and no provisions hereof may be waived, without the written
consent of the Company and the Purchaser.
Section 6.9. Severability. If any provision of this
Agreement shall be declared void or unenforceable by any judicial or
administrative authority, the validity of any other provision and of the
entire Agreement shall not be affected thereby.
Section 6.10. Titles and Subtitles. The titles and subtitles
used in this Agreement are for convenience only and are not to be considered
in construing or interpreting any term or provision of this Agreement. The term
"date of this Agreement" and words of similar import (such as "date hereof")
shall mean and refer to May 31, 1996.
Section 6.11. Further Assurances. From and after the date of
this Agreement, upon the request of the Purchaser or the Company, the Company
and the Purchaser shall execute and deliver such instruments, documents and
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement and the
Preferred Shares.
IN WITNESS WHEREOF, the Company and the Purchaser have
executed this Agreement as of the day and year first above written.
PROVIDENT COMPANIES, INC.
By:/s/ Thomas R. Watjen
Name: Thomas R. Watjen
Title: Executive Vice President
ZURICH INSURANCE COMPANY
By:/s/ Steven M. Gluckstern
Name: Steven M. Gluckstern
Title: Representative
EXHIBIT 1
Strategic Relationship
Overview of Terms
The strategic relationship described herein will be set forth in a "Marketing
Agreement" entered into by the parties. The concepts listed below require
further discussions to develop them fully, but it is contemplated that the
Marketing Agreement would include the following:
1. Provident intends to continue to offer a wide range of
Individual and Employee Benefit products to its customers,
through multiple distributions channels. Provident would
agree to utilize products developed by Zurich whenever
possible to meet its customers' needs. In the Individual
marketplace, these products opportunities may include term
life, whole life, universal life, variable universal life,
individual property and casualty insurance products, and
fixed and variable annuities. When a "Zurich product" is
sold, Provident would expect to receive consideration "normal
and customary" for the business and would expect to have
reasonable opportunity to participate as a reinsurer on this
business.
2. Provident intends to expand its offerings of retirement/asset
accumulation products to its Individual and Employee Benefits
customers. It would be Provident's intent, depending on the
products' design and features, to offer to its customers
mutual funds and institutional asset management services
offered by Zurich. As Provident considers integrating life
and investment product features into its Disability products,
Provident would intend to utilize Zurich's products, as
appropriate, in these new product offerings. Provident would
again expect "normal and customary" consideration when
placing business in this capacity.
3. Zurich would agree to market Provident's Individual
Disability product through its U.S. marketing channels
whenever possible, including Kemper. The terms of such an
agreement would be similar to those used in other "Corporate
Agreements", where Zurich would receive consideration for
acting as an intermediary. Provident would also intend to
offer Zurich the opportunity to reinsure a portion of this
business if appropriate.
4. Zurich and Provident would jointly explore opportunities to
market Individual and Group Disability products outside the
U.S. In general it would be expected that Provident would
contribute its product and risk management expertise, while
Zurich would contribute its local market knowledge and
marketing capabilities.
5. Zurich and Provident would jointly explore opportunities
which may exist in linking Group Long-Term Disability
coverage with Workers Compensation coverage. Both companies
recognize the potential market for a "24 hour" coverage and
would commit the resources necessary to investigate whether a
mutually acceptable opportunity may exist.
6. Zurich and Provident would continue to seek other
opportunities to leverage each other's strengths, and to
bring better value and service to both organizations'
customers. This may include reinsurance transactions and
potential investment management ventures.
7. If Provident elects to engage in a significant reinsurance
transaction with respect to its Individual Disability block
of business, Provident will give Zurich the right to provide
such reinsurance on market terms. Provident agrees to offer
to Zurich the opportunity to propose other reinsurance
transactions and investment management arrangements and to
consider such proposals in good faith.
The strategic initiatives outlined above would not be finalized prior to the
closing of the other "Investor Transactions" described in the letter agreement
to which this Exhibit is attached. Provident and Zurich would however expect
to refine the understanding noted above and have such an understanding
documented in a general "Marketing Agreement".
Each of Zurich and Provident would commit up to $1.5 million to a joint
marketing/development program to fund the expenses and/or hire dedicated staff
to pursue the relationship.