EXHIBIT 10.17
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
BETWEEN PROVIDENT COMPANIES, INC. AND
ZURICH INSURANCE COMPANY DATED AS OF MAY 31, 1996.
(attached)
EXHIBIT 10.17
PROVIDENT COMPANIES, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT,
dated as of May 31, 1996, between Zurich Insurance Company, a Swiss corporation
("Zurich" and, together with any purchaser of Common Stock (as defined below)
pursuant to the Stock Purchase Agreement (as defined below) collectively, the
"Investor"), and Provident Companies, Inc., a Delaware corporation (the
"Company").
R E C I T A L S
WHEREAS, on May 31, 1996 the aprties hereto signed the
original Registration Rights Agreement as such parties desire to amend and
restate such Agreement as of such date; and
WHEREAS, this Amended and Restated Registration Rights
Agreement is being executed on November 27, 1996 as of May 31, 1996; and
WHEREAS, the Investor has, pursuant to the terms of an Amended
and Restated Common Stock Purchase Agreement, entered into as of November 27,
1996 and dated as of May 31, 1996, by and among the Company and the Investor (as
the same may be amended or supplemented from time to time, the "Stock Purchase
Agreement"), agreed to purchase shares of Common Stock, par value $1.00 per
share, of the Company (the "Common Stock"); and
WHEREAS, the Company has agreed, as a condition precedent to
the Investor's obligations under the Stock Purchase Agreement, to grant the
Investor certain registration rights; and
WHEREAS, the Company and the Investor desire to define the
registration rights of the Investor on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the
respective meanings set forth below:
Commission: shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the
Securities Act;
Exchange Act: shall mean the Securities Exchange Act of
1934, as amended;
Existing Holder: shall mean Textron, Inc. or any member of
the Family Group, and shall include any transferees thereof who are entitled
to registration rights from the Company pursuant to agreements between the
Company and Textron, Inc. or the Company and the members of the Family Group.
Family Group: shall mean the stockholders of the Company
set forth on Exhibit A hereto.
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean any Holder or Holders who in
the aggregate are Holders of more than 10% of the then outstanding Registrable
Securities;
Person: shall mean an individual, partnership, joint-stock
company, corporation, trust or unincorporated organization, and a government
or agency or political subdivision thereof;
register, registered and registration: shall mean a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement;
Registrable Securities: shall mean (A) the shares of Common
Stock issued under the Stock Purchase Agreement, (B) any additional shares of
Common Stock acquired by the Investor and (C) any stock of the Company issued
as a dividend or other distribution with respect to, or in exchange for or in
replacement of, the shares of Common Stock referred to in clause (A) or (B);
provided, that Registrable Securities shall not include (i) securities with
respect to which a registration statement with respect to the sale of such
securities has become effective under the Securities Act and all such
securities have been disposed of in accordance with such registration
statement, or (ii) such securities as are actually sold pursuant to Rule 144
(or any successor provision thereto) under the Securities Act;
Registration Expenses: shall mean all expenses incurred by
the Company in compliance with Sections 2(a), (b) and (c) hereof, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, fees and expenses of one counsel
for all the Holders, blue sky fees and expenses and the expense of any special
audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company);
Security, Securities: shall have the meaning set forth in
Section 2(1) of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as
amended; and
Selling Expenses: shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and
all fees and disbursements of counsel for each of the Holders other than
fees and expenses of one counsel for all the Holders.
2. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. If the Company shall
receive from an Initiating Holder, at any time, a written request that
the Company effect any registration with respect to all or a part of
the Registrable Securities, the Company will:
(A) promptly give written notice of
the proposed registration, qualification or compliance to all other Holders;
and
(B) as soon as practicable, use its
reasonable best efforts to effect such registration
(including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable
Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any
Holder or Holders joining in such request as are specified
in a written request received by the Company within 10
business days after written notice from the Company is given
under Section 2(a)(i)(A) above; provided that the Company
shall not be obligated to effect, or take any action to
effect, any such registration pursuant to this Section 2(a):
(u) Solely with respect to
underwritten registrations requested pursuant to this
Agreement, if the Company shall have previously
effected an underwritten registration with respect
to Registrable Securities pursuant to Section 2(b)
hereof, the Company shall not be required to effect
any underwritten registration pursuant to this
Section 2(a) until a period of 180 days shall have
elapsed from the effective date of the most recent
such previous registration; provided that if, in the
most recent such previous registration, participation
pursuant to Section 2(b) hereof shall not have been
to the extent requested pursuant to Section 2(b)
hereof, then the Company shall not be required to
effect any underwritten registration pursuant to this
Section 2 (a) until a period of 90 days shall have
elapsed from the effective date of the most recent
such previous registration;
(v) If, upon receipt of a
registration request pursuant to this Section 2(a),
the Company is advised in writing (with a copy to the
Initiating Holder) by a recognized national
independent investment banking firm selected by the
Company that, in such firm's opinion, a registration
at the time and on the terms requested would
adversely affect any public offering of securities of
the Company by the Company (other than in connection
with benefit and similar plans) or by or on behalf of
any shareholder of the Company exercising a demand
registration right (collectively, a "Company
Offering") with respect to which the Company has
commenced preparations for a registration prior to
the receipt of a registration request pursuant to
this Section 2(a), the Company shall not be required
to effect a registration pursuant to this Section
2(a) until the earlier of (i) 30 days after the
completion of such Company Offering, (ii) promptly
after any abandonment of such Company Offering or
(iii) 60 days after the date of receipt of a
registration request pursuant to this Section 2(a);
provided, however, that the periods during which the
Company shall not be required to effect a
registration pursuant to this Section 2(a) together
with any periods of suspension under Section 2(i)
hereof may not exceed 90 days in the aggregate during
any period of 12 consecutive months;
(w) If the Registrable Securities
requested by all Holders to be registered pursuant to
such request are included in, and eligible for sale
under, the Shelf Registration (as defined below);
(x) In any particular jurisdiction
in which the Company would be required to execute a
general consent to service of process in effecting
such registration, qualification or compliance,
unless the Company is already subject to service in
such jurisdiction and except as may be required by
the Securities Act or applicable rules or regulations
thereunder;
(y) After the Company has
effected three (3) such registrations pursuant to
this Section 2(a) (in the aggregate for all
Holders) and such registrations have been declared or
ordered effective and the sales of such Registrable
Securities shall have closed; provided, that
Holders shall not have the right to request an
underwritten registration pursuant to this Section
2(a) more than one (1) time in any six-month
period; or
(z) If the Registrable Securities
requested by all Holders to be registered pursuant to
such request do not have an anticipated aggregate
public offering price (before any underwriting
discounts and commissions) of not less than
$10,000,000.
The registration statement filed pursuant to the request of
the Initiating Holders may, subject to the provisions of Section 2(a)(ii) below,
include other Securities of the Company which are held by Persons who, by virtue
of agreements with the Company, are entitled to include their Securities in any
such registration ("Other Stockholders").
(ii) Underwriting. If the Initiating Holders intend
to distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company as a part of
their request made pursuant to Section 2(a). If Other Stockholders
request inclusion in any such registration, the Holders shall offer to
include the securities of such Other Stockholders in the underwriting
and may condition such offer on their acceptance of the further
applicable provisions of this Section 2. The Holders whose shares are
to be included in such registration and the Company shall (together
with all Other Stockholders proposing to distribute their securities
through such underwriting) enter into underwriting and related
agreements in customary form with the representative of the underwriter
or underwriters selected for such underwriting by the Initiating
Holders and reasonably acceptable to the Company. Such underwriting
agreement will contain such representations and warranties by the
Company and such other terms and provisions as are customarily
contained in underwriting agreements with respect to
secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 2(f)
hereof and the provision of opinions of counsel and accountants'
letters to the effect and to the extent provided in Section 2(e)
hereof, and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Holders.
The Company shall cooperate fully with the Holders and the underwriters
in connection with any underwritten offering. Notwithstanding any other
provision of this Section 2(a), if the representative advises the
Holders in writing that marketing factors require a limitation on the
number of shares to be underwritten, the securities of the Company held
by Other Stockholders shall be excluded from such registration to the
extent so required by such limitation. If, after the exclusion of such
shares, further reductions are still required, the number of shares
included in the registration by each Holder shall be reduced on a pro
rata basis (based on the number of shares held by such Holder), by such
minimum number of shares as is necessary to comply with such request.
No Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. If any Other Stockholder who has
requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the
Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the
Company and officers and directors of the Company may include its or
their securities for its or their own account in such registration if
the representative so agrees and if the number of Registrable
Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be
limited.
(b) Company Registration.
(i) If the Company shall determine to register any of
its equity securities either for its own account or for the account of
Other Stockholders, other than a registration relating solely to
benefit plans, or a registration relating solely to a Commission Rule
145 transaction, or a registration on any registration form which does
not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company
will:
(A) promptly give to each of the Holders a
written notice thereof (which shall include a list of the
jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other
state securities laws); and
(B) include in such registration (and any
related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all the
Registrable Securities specified in a written request or
requests, made by the Holders within ten (10) business days
after the giving of the written
notice from the Company described in clause (i) above,
except as set forth in Section 2(b)(ii) below. Such written
request shall specify the amount of Registrable Securities
intended to be disposed of by a Holder and may specify all
or a part of the Holders' Registrable Securities.
Notwithstanding the foregoing, if, at any time after giving such
written notice of its intention to effect such registration and prior
to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not
to register such equity securities the Company may, at its election,
give written notice of such determination to the Holders and thereupon
the Company shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such
equity securities (but not from its obligation to pay Registration
Expenses to the extent incurred in connection therewith as provided
herein), without prejudice, however, to the rights (if any) of Holders
immediately to request that such registration be effected as a
registration under Section 2(a) hereof.
(ii) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise each of the Holders as a part
of the written notice given pursuant to Section 2(b)(i)(A). In such
event, the right of each of the Holders to registration pursuant to
this Section 2(b) shall be conditioned upon such Holders' participation
in such underwriting and the inclusion of such Holders' Registrable
Securities in the underwriting to the extent provided herein. The
Holders whose shares are to be included in such registration shall
(together with the Company and the Other Stockholders distributing
their securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter
or underwriters selected for the underwriting by the Company or such
Other Stockholders, as the case may be. Such underwriting agreement
will contain such representations and warranties by the Company and
such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution to the
effect and to the extent provided in Section 2(f) hereof and the
provision of opinions of counsel and accountants' letters to the effect
and to the extent provided in Section 2(e), and the representations and
warranties by, and the other agreements on the part of, the Company to
and for the benefit of such underwriters shall also be made to and for
the benefit of the Holders whose shares are to be included in such
registration. Notwithstanding any other provision of this Section 2(b),
if the representative determines that marketing factors require a
limitation on the number of shares to be underwritten, the Company
shall so advise all holders of securities requesting registration, and
the number of shares of securities that are entitled to be included in
the registration and underwriting shall be allocated in the following
manner: The securities of the Company held by officers, directors and
Other Stockholders of the Company (other than securities held by
Existing Holders or holders who by contractual right demanded such
registration ("Demanding Holders")) shall be excluded from such
registration and underwriting to the extent required by such
limitation, and, if a limitation on the number of shares is still
required, the number of shares that may be included in the registration
and underwriting by each of the Holders, Existing Holders which are not
Demanding Holders with respect to such registration and Demanding
Holders with respect to such registration which are not Existing
Holders shall be reduced, on a pro rata basis (based on the number of
shares held by such holder), by such minimum number of shares as is
necessary to comply with such limitation; provided, however, that in
the event that an Existing Holder is a Demanding Holder with respect to
such registration, the number of shares of Registrable Securities
proposed to be included in any such registration by each Holder shall
be reduced on a pro rata basis (based on the number of shares held by
such holder) prior to any reduction in the number of shares to be
included in such registration by such Demanding Holder. If any of the
Holders or any officer, director or Other Stockholder disapproves of
the terms of any such underwriting, he may elect to withdraw therefrom
by written notice to the Company and the underwriter. Any Registrable
Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(c) Shelf Registration. (i) On or before the earlier of
December 15, 1996, or ten business days following the effectiveness of
the Company's Registration Statement on Form S-4 containing the Joint
Proxy Statement/Prospectus to be circulated in connection with the
Merger (as defined in the Purchase Agreement) the Company shall file a
"shelf" registration statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration") with respect to the
Registrable Securities to be issued under the Stock Purchase Agreement.
The Company shall (A) use its reasonable best efforts to have the Shelf
Registration declared effective on or before the Closing Date (as
defined in the Stock Purchase Agreement) or as soon thereafter as
practicable and (B) subject to Section 2(i) hereof, use its reasonable
best efforts to keep the Shelf Registration continuously effective from
the date such Shelf Registration is declared effective until the date
of termination of this Agreement pursuant to Section 2(j) hereof in
order to permit the prospectus forming a part thereof to be usable by
Holders during such period. Except as set forth in Section 2(c)(iii)
below, the Shelf Registration may not include other securities of the
Company which are held by Other Stockholders.
(ii) Subject to Section 2(i) hereof, the Company
shall supplement or amend the Shelf Registration, (A) as required by
the registration form utilized by the Company or by the instructions
applicable to such registration form or by the Securities Act or the
rules and regulations promulgated thereunder, (B) to include in such
Shelf Registration any additional securities that become Registrable
Securities by operation of the definition thereof and (C) following the
written request of an Initiating Holder pursuant to Section 2(c)(iii)
below, to cover offers and sales of all or a part of the Registrable
Securities by means of an underwriting including the incorporation of
any information required pursuant to Section 2(e)(x) below. The Company
shall furnish to the Holders of the Registrable Securities to which the
Shelf Registration relates copies of any such supplement or amendment
sufficiently in advance (but in no event less than five business days
in advance) of its use and/or filing with the Commission to allow the
Holders a meaningful opportunity to comment thereon.
(iii) The Holders may, at their election and upon
written notice by an Initiating Holder to the Company, subject to the
limitations set forth in clauses (u), (v), (x), (y) and (z) of Section
2(a)(i)(B) hereof, effect offers and sales under the Shelf Registration
by means of one or more underwritten offerings, in which case the
provisions of Section 2(a)(ii) above shall apply to any such
underwritten distribution of securities under the Shelf Registration
and such underwriting shall, if sales of Registrable Securities
pursuant thereto shall have closed, be regarded as the exercise of one
of the registration rights contemplated by Section 2(a) hereof. In the
event of such an election, and, without the consent of the Holders of a
majority of the then outstanding Registrable Securities, under no other
circumstances, the Shelf Registration may, subject to Section 2(a)(ii)
above, be amended to include other shares of Common Stock which are
held by Other Stockholders.
(d) Expenses of Registration. All
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Section 2 (including all
Registration Expenses incurred in connection with the Shelf Registration and
any supplements or amendments thereto, whether or not it becomes effective,
and whether all, none or some of the Registrable Securities are sold pursuant
to the Shelf Registration) shall be borne by the Company, and all Selling
Expenses shall be borne by the Holders of the securities so registered pro
rata on the basis of the number of their shares so registered; provided,
however, that if, as a result of the withdrawal of a request for registration
by any of the Holders, as applicable, the registration statement does not
become effective, the Holders and Other Stockholders requesting registration
may elect to bear the Registration Expenses (pro rata on the basis of
the number of their shares so included in the
registration request, or on such other basis as such Holders and Other
Stockholders may agree), in which case such registration shall not be counted
as a registration pursuant to Section 2(a)(i)(B)(y).
(e) Registration Procedures. In the case of
each registration effected by the Company pursuant to this Section 2, the
Company will keep the Holders, as applicable, advised in writing as to the
initiation of each registration and as to the completion thereof. At its
expense, the Company will:
(i) other than the Shelf Registration, the
obligations in respect of which are set forth in Section 2(c)(i)(B)
above, keep such registration effective for a period of one hundred
eighty (180) days or until the Holders, as applicable, have completed
the distribution described in the registration statement relating
thereto, whichever first occurs;
(ii) furnish to each Holder, and to any underwriter
before filing with the Commission, copies of any registration statement
(including all exhibits) and any prospectus forming a part thereof and
any amendments and supplements thereto (including all documents
incorporated or deemed incorporated by reference therein prior to the
effectiveness of such registration statement and including each
preliminary prospectus, any summary prospectus or any term sheet (as
such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, which
documents, other than documents incorporated or deemed incorporated by
reference, will be subject the review of the Holders and any such
underwriter for a period of at least five business days, and the
Company shall not file any such registration statement or such
prospectus or any amendment or supplement to such registration
statement or prospectus to which any Holder or any such underwriter
shall reasonably object within five business days after the receipt
thereof; a Holder or such underwriter(s), if any, shall be deemed to
have reasonably objected to such filing only if the registration
statement, amendment, prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission;
(iii) furnish to each Holder and to any underwriter,
such number of conformed copies of the applicable registration
statement and of each amendment and supplement thereto (in each case
including all exhibits) and such number of copies of the prospectus
forming a part of such registration statement (including each
preliminary prospectus, any summary prospectus or any term sheet (as
such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents,
including without limitation documents incorporated or deemed to be
incorporated by reference prior to the effectiveness of such
registration, as each of the Holders or any such underwriter, from time
to time may reasonably request;
(iv) to the extent practicable, promptly prior to the
filing of any document that is to be incorporated by reference into any
registration statement or prospectus forming a part thereof subsequent
to the effectiveness thereof, and in any event no later than the date
such document is filed with the Commission, provide copies of such
document to the Holders, if requested, and to any underwriter, make
representatives of the Company available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as any Holder
or any such underwriter reasonably may request;
(v) make available at reasonable times for inspection
by the Holders, any underwriter participating in any disposition
pursuant to such registration and any attorney or accountant retained
by the Holders or any such underwriter, all financial and other
records, pertinent corporate documents and properties of the Company
and cause the officers, directors and employees of the Company to
supply all information reasonably requested by the Holders and any such
underwriters, attorneys or accountants in connection with such
registration subsequent to the filing of the applicable registration
statement and prior to the effectiveness of the applicable registration
statement;
(vi) use its reasonable best efforts (x) to register
or qualify all Registrable Securities and other securities covered by
such registration under such other securities or blue sky laws of such
States of the United States of America where an exemption is not
available and as the sellers of Registrable Securities covered by such
registration shall reasonably request, (y) to keep such registration or
qualification in effect for so long as the applicable registration
statement remains in effect, and (z) to take any other action which may
be reasonably necessary or advisable to enable such sellers to
consummate the disposition in such jurisdictions of the securities to
be sold by such sellers, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where it is not so qualified, or to
subject itself to taxation in any such jurisdiction, or to execute a
general consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already subject to
service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations
thereunder;
(vii) use its reasonable best efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of counsel
to the Company and counsel to the Holders of Registrable Securities to
enable the Holders thereof to consummate the disposition of such
Registrable Securities;
(viii) subject to Section 2(i) hereof, promptly
notify each Holder of Registrable Securities covered by a registration
statement (A) upon discovery that, or upon the happening of any event
as a result of which, the prospectus forming a part of such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
(B) of the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation of
proceedings for that purpose, (C) of any request by the Commission for
(1) amendments to such registration statement or any document
incorporated or deemed to be incorporated by reference in any such
registration statement, (2) supplements to the prospectus forming a
part of such registration statement or (3) additional information, (D)
of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and at the request of
any such Holder promptly prepare and furnish to it a reasonable number
of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ix) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such
registration, or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for
sale in any jurisdiction;
(x) if requested by any Initiating Holder, or any
underwriter, promptly incorporate in such registration statement or
prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as the Initiating Holder and any
underwriter may reasonably request to have included therein, including,
without limitation, information relating to the "plan of distribution"
of the Registrable Securities, information with respect to the
principal amount or number of shares of Registrable Securities being
sold to such underwriter, the purchase price being paid therefor and
any other terms of the offering of the Registrable Securities to be
sold in such offering and make all required filings of any such
prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(xi) furnish to the Holders, addressed to them, an
opinion of counsel for the Company, dated the date of the closing under
the underwriting agreement, if any, or the date of effectiveness of the
registration statement if such registration is not an underwritten
offering, and use its reasonable best efforts to furnish to the
Holders, addressed to them, a "cold comfort" letter signed by the
independent certified public accountants who have certified the
Company's financial statements included in such registration, covering
substantially the same matters with respect to such registration (and
the prospectus included therein) and, in the case of such accountants'
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten
public offerings of securities and such other matters as the Holders
may reasonably request;
(xii) provide promptly to the Holders upon request
any document filed by the Company with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act; and
(xiii) use its reasonable best efforts to cause all
Registrable Securities included in any registration pursuant hereto to
be listed on each securities exchange on which securities of the same
class are then listed or, if not then listed on any securities
exchange, to be eligible for trading in any over-the-counter market or
trading system in which securities of the same class are then traded.
(f) Indemnification.
(i) The Company will indemnify each of the Holders,
as applicable, each of its officers, directors, members and partners,
and each person controlling each of the Holders, with respect to each
registration which has been effected pursuant to this Section 2, and
each underwriter, if any, and each person who controls any underwriter,
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to
any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the
Securities Act or the Exchange Act or any rule or regulation
thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each of
the Holders, each of its officers, directors, members and partners,
and each person controlling each of the Holders, each such
underwriter and each person who controls any such underwriter, for
any legal and any other expenses reasonably incurred in connection
with investigating and defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in
any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the
Company by the Holders or underwriter and stated to be specifically
for use therein.
(ii) Each of the Holders will, if Registrable
Securities held by it are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify
the Company, each of its directors and officers and each underwriter,
if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter,
each Other Stockholder and each of their officers, directors, members
and partners, and each person controlling such Other Stockholder
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document
made by such Holder, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements by such Holder therein not misleading, and will
reimburse the Company and such Other Stockholders, directors, officers,
partners, members, persons, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder and stated
to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder and under clause (vi)
below shall be limited to an amount equal to the net proceeds to such
Holder of securities sold as contemplated herein.
(iii) Each party entitled to indemnification under
this Section 2(f) (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation
resulting therefrom; provided that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be 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 may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the fees and expenses of one such
counsel for all Indemnified Parties shall be at the expense of the
Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 2 unless
the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation
shall, 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 the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability in respect to
such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(iv) If the indemnification provided for in this
Section 2(f) is held by a court of competent jurisdiction to be
unavailable to an Indemnified Party with respect to any loss,
liability, claim, damage or expense referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements or omissions which
resulted in such loss, liability, claim, damage or expense, as well as
any other relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue (or alleged
untrue) statement of a material fact or the omission (or alleged
omission) to state a material fact relates to information supplied by
the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any underwritten
public offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement
shall be controlling.
(vi) The foregoing indemnity agreement of the Company
and Holders is subject to the condition that, insofar as they relate to
any loss, claim, liability or damage made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement in question becomes
effective or the amended prospectus filed with the Commission pursuant
to Commission Rule 424(b) (the "Final Prospectus"), such indemnity or
contribution agreement shall not inure to the benefit of any
underwriter or Holder (but only if such Holder was required to deliver
such Final Prospectus) if a copy of the Final Prospectus was furnished
to the underwriter and was not furnished to the person asserting the
loss, liability, claim or damage at or prior to the time such action is
required by the Securities Act.
(g) Information by the Holders. Each of the
Holders holding securities included in any registration shall furnish to the
Company such information regarding such Holder and the distribution proposed by
such Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Section 2.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules
and regulations of the Commission which may permit the sale
of restricted securities to the public without registration, the Company
agrees to:
(i) make and keep public information available as
those terms are understood and defined in Rule 144 under the Securities
Act ("Rule 144"), at all times;
(ii) use its best efforts to file with the Commission
in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(iii) so long as the Holder owns any Registrable
Securities, furnish to the Holder upon request, a written statement by
the Company as to its compliance with the reporting requirements of
Rule 144, and of the Securities Act and the Exchange Act, a copy of the
most recent annual or quarterly report of the Company, and such other
reports and documents so filed as the Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing
the Holder to sell any such securities without registration.
(i) Holdback Agreement; Postponement.
Notwithstanding the provisions of Sections 2(a),(b) and (c), if the Board of
Directors of the Company determines in good faith that it is in the best
interests of the Company (A) not to disclose the existence of facts
surrounding any proposed or pending acquisition, disposition, strategic
alliance or financing transaction involving the Company or (B) for any
purpose, to suspend the registration rights set forth herein, the Company may,
by notice to the Holders in accordance with Section 4(a), (1) suspend the
rights of the Holders to make sales pursuant to the Shelf Registration and (2)
postpone any registration which is requested pursuant to Section 2(a), in each
case for such a period of time as the Board of Directors may determine;
provided that (x) such periods of suspension together with any periods of
suspension effected pursuant to Section 2(a)(i)(B)(v) hereof may not exceed 90
days in the aggregate during any period of 12 consecutive months and (y) the
Company may not impose such a suspension or a postponement pursuant to Section
2(a)(i)(B)(v) following the printing and distribution of a preliminary
prospectus in any underwritten public offering of Registrable Securities
pursuant to Section 2(a)(i) or 2(c)(iii) (except such
suspension, not to exceed 10 days, which results from an event that is not
within the reasonable control of the Company). Notwithstanding the provisions of
Section 2(a)(i)(B)(v) or this Section 2(i), the Company shall not suspend the
registration rights set forth herein at any time during which any similar rights
of the Existing Holders are not similarly suspended.
(j) Termination. The registration rights set
forth in Section 2(a) shall not be available to any Holder if, in
the opinion of counsel to the Company, all of the Registrable Securities then
owned by such Holder could be sold in any 90-day period pursuant to Rule 144
(without giving effect to the provisions of Rule 144(k)).
(k) Assignment. The registration rights set
forth in Section 2 hereof may be assigned, in whole or in part, to any
transferee of Registrable Securities (who shall be considered thereafter to be
a Holder (provided that any transferee who is not an affiliate of Investor
shall be a Holder only with respect to such Registrable Securities so acquired
and any stock of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, such Registrable
Securities) and shall be bound by all obligations and limitations of this
Agreement).
3. INTERPRETATION OF THIS AGREEMENT
(a) Directly or Indirectly. Where any
provision in this Agreement refers to action to be taken by any Person, or
which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such State.
(c) Section Headings. The headings of the
sections and subsections of this Agreement are inserted for convenience only
and shall not be deemed to constitute a part thereof.
4. MISCELLANEOUS
(a) Notices.
(i) All communications under this Agreement shall be
in writing and shall be delivered by facsimile or by hand or mailed by
overnight courier or by registered or certified mail, postage prepaid:
(A) if to the Company, to Provident
Companies, Inc., 1 Fountain Square, Chattanooga,
Tennessee 37402, Fax No.: (423) 755-2590, Attention: Chief
Financial Officer, or at such other address as it may have
furnished in writing to the Investors;
(B) if to the Investor, at the address
listed on Schedule I hereto, or at such other address as may
have been furnished the Company in writing.
(ii) Any notice so addressed shall be deemed to be
given: if delivered by hand, on the date of such delivery; if mailed by
courier, on the first business day following the date of such mailing;
and if mailed by registered or certified mail, on the third business
day after the date of such mailing.
(b) Reproduction of Documents. This
Agreement and all documents relating thereto, including, without limitation,
any consents, waivers and modifications which may hereafter be executed may be
reproduced by the Investor by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and the Investors
may destroy any original document so reproduced. The parties hereto agree and
stipulate that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not
the original is in existence and whether or not such reproduction was made by
the Investors in the regular course of business) and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
(c) Successors and Assigns. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns
of each of the parties.
(d) Entire Agreement; Amendment and Waiver.
This Agreement constitutes the entire understanding of the parties hereto and
supersedes all prior understanding among such parties. This Agreement may be
amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of the Company and the Holders of a
majority of the then outstanding Registrable Securities.
(e) Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall be considered one and the same
agreement.
(f) No Inconsistent Agreements. The Company
will not hereafter enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement.
(g) Remedies. Each Holder of Registrable
Securities, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(h) Severability. In the event that any one
or more of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained herein shall not
be in any way impaired thereby, it being intended and understood that all of
the rights and privileges of each of the Holders shall be enforceable to the
fullest extent permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first set forth above.
PROVIDENT COMPANIES, INC.
By:/s/ Thomas R. Watjen
Name: Thomas R. Watjen
Title: Executive Vice President
INVESTOR:
ZURICH INSURANCE COMPANY
By: /s/ Steven M. Gluckstern
Name: Steven M. Gluckstern
Title: Representative
SCHEDULE I
Name and Address
of Investor
ZURICH INSURANCE COMPANY
Mythenquai 2
P.O. Box
Ch-8022
Zurich, Switzerland
Attention: General Counsel
with copies to:
Zurich Center Resource Limited
One Chase Manhattan Plaza
New York, New York
Facsimile No.: (212) 898-5002
Attention: General Counsel
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Facsimile No.: (212) 821-8111
Attention: Thomas M. Cerabino