<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 13, 1996
REGISTRATION NO. 333-
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_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROVIDENT COMPANIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 621598430
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
1 FOUNTAIN SQUARE
CHATTANOOGA, TENNESSEE 37402
(423) 755-1011
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
SUSAN N. ROTH
1 FOUNTAIN SQUARE
CHATTANOOGA, TENNESSEE 37402
(423) 755-1011
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
F. DEAN COPELAND
ALSTON & BIRD
ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
(404) 881-7000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective .
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
<S> <C> <C> <C> <C>
Title of Shares to be Amount Proposed Maximum Proposed Maximum Amount of
Registered to be Registered Offering Price Per Aggregate Offering Registration
Share(1) Price(1) Fee(1)
- - -------------------------------------------------------------------------------------------------------------------------
Common Stock, $1.00 par
value per share 9,523,810 shares(2) $44.875 $436,904,783 $132,395
=========================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(c), the proposed maximum offering price per share
and registration fee are based upon the average of the high and low prices of
the Registrant's Common Stock on December 6, 1996 as reported on the New York
Stock Exchange, Inc.
(2) Pursuant to Rule 416, Common Stock offered hereby shall be deemed to
cover additional securities to be offered or issued to prevent dilution
resulting from stock splits, stock dividends, or similar transactions.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
_______________________________________________________________________________
<PAGE>
SUBJECT TO COMPLETION
DATED DECEMBER 13, 1996
PROSPECTUS
9,523,810 SHARES
PROVIDENT COMPANIES, INC.
COMMON STOCK
_______________________
This prospectus relates to the offering for resale of 9,523,810 shares (the
"Shares") of Common Stock, $1.00 par value per share (the "Common Stock"), of
Provident Companies, Inc., a Delaware corporation (the "Company"), for the
account of the Selling Stockholders identified herein. See "Selling
Stockholders." The Company will not receive any proceeds from the sale of the
Shares by the Selling Stockholders.
The Common Stock is traded on the New York Stock Exchange, Inc. ("NYSE")
under the symbol "PVT." On December , 1996, the closing sale price for the
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Common Stock on the NYSE was $ per share.
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SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED
HEREBY.
_______________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________________
All or a portion of the Shares may be offered by the Selling Stockholders
from time to time in transactions (which may include block transactions) on the
NYSE or such other national securities exchange or automated interdealer
quotation system on which shares of the Company's Common Stock are then traded,
in negotiated transactions, or by a combination of such methods of sale, at
fixed prices, which may be changed, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, or at negotiated
prices. The Selling Stockholders may effect such transactions by selling the
Shares directly to purchasers or through underwriters, agents or broker-dealers,
and any such underwriters, agents or broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of the Shares for whom such underwriters, agents or
broker-dealers may act as agents or to whom they may sell as principals, or both
(which compensation as to a particular underwriter, agent or broker-dealer might
be in excess of customary compensation). See "Selling Stockholders" and
"Distribution of Shares." The Company will bear all expenses in connection with
the registration and sale of the Shares being offered by the Selling
Stockholders, other than discounts, concessions or commissions to underwriters,
agents or broker-dealers and fees and expenses of counsel and other advisors to
the Selling Stockholders. The Company has agreed to indemnify the Selling
Shareholders against certain liabilities, including liabilities under the
Securities Act of 1933, as amended (the "Securities Act"). See "Distribution of
Shares."
THE DATE OF THIS PROSPECTUS IS , 19 .
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange Act,
and in accordance therewith files reports, proxy and information statements and
other information with the Commission. Such reports, proxy and information
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549; and at
the Commission's Northeast Regional Office, 7 World Trade Center, Suite 1300,
New York, New York 10048, and Midwest Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington D.C. 20549. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants such as the Company that
file electronically with the Commission. The address of such site is
http://www.sec.gov. In addition, such reports, proxy and information statements
and other information concerning the Company may be inspected at the offices of
the NYSE, 20 Broad Street, New York, New York 10005.
The Company has filed a Registration Statement on Form S-3 (together with all
amendments and exhibits filed or to be filed in connection therewith, the
"Registration Statement") with the Commission pursuant to the Securities Act, of
which this Prospectus forms a part. This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. Such
additional information may be obtained from the Commission's principal office in
Washington, D.C. Statements contained or incorporated by reference herein
concerning the provisions of documents are necessarily summaries of such
documents, and each statement is qualified in its entirety by reference to the
copy of the applicable document filed with the Commission.
FORWARD LOOKING STATEMENTS
This Prospectus contains and incorporates by reference certain forward
looking statements within the meaning of the Private Securities Litigation
Reform Act of 1995 with respect to the results of operations and businesses of
the Company. These forward looking statements involve certain risks and
uncertainties. Factors that may cause actual results to differ materially from
those contemplated or projected, forecast, estimated or budgeted in such forward
looking statements include, among others, the following possibilities: (i)
heightened competition, including specifically the intensification of price
competition, the entry of new competitors and the formation of new products by
new and existing competitors; (ii) adverse state and federal legislation and
regulation, including limitations on premium levels, increases in minimum
capital and reserves, and other financial viability requirements; (iii) failure
to obtain new customers or retain existing customers; (iv) inability to carry
out marketing and sales plans; (v) loss of key executives; (vi) changes in
interest rates causing a reduction of investment income; (vii) general economic
and business conditions which are less favorable than expected; (viii)
unanticipated changes in industry trends; and (ix) inaccuracies in assumptions
regarding future morbidity, persistency, mortality and interest rates used in
calculating reserve amounts. In addition, factors that could cause actual
results of the Company to differ materially from those contemplated by or
projected, forecast, estimated or budgeted in forward looking statements
relating to the results of operations and business of the Company following the
merger of a wholly-owned subsidiary of the Company with and into The Paul Revere
Corporation ("Paul Revere"), with Paul Revere becoming a wholly-owned subsidiary
of the Company (the "Paul Revere Merger"), including (a) the cost savings that
will be realized from the Paul Revere Merger and (b) the costs associated with
the Paul Revere Merger include, among others, the following possibilities: (i)
the expected cost savings to be realized beginning primarily in 1997 through
combining certain functions of both the Company and Paul Revere, restructuring
the field organizations of both companies to eliminate redundant facilities and
better serve the combined company's customers, and reductions in staff cannot be
fully realized because the changes are not made or unanticipated offsetting
costs are incurred; and (ii) costs or difficulties related to the integration of
the businesses of the Company and Paul Revere are greater than expected. See
"Risk Factors."
IN CONNECTION WITH THIS OFFERING, ANY BROKERS OR DEALERS THAT MAY
PARTICIPATE IN THE OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH
STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK OF THE COMPANY AT A
LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NYSE, IN THE OVER-THE-COUNTER MARKET OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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THE COMPANY
Provident is a Delaware corporation organized in 1995 as the parent holding
company of a group of insurance subsidiaries. Provident is a provider of life
and health insurance, particularly individual disability, life insurance,
annuities, and group employee benefits. Provident, through its subsidiaries,
does business in all 50 states, the District of Columbia, Puerto Rico, and ten
provinces and two territories of Canada. Provident focuses on two types of
insurance customers -- the individual and the employee benefits customer. The
individual life and disability segment includes individual life products,
individual disability income products, and individual annuities. These products
are marketed primarily through personal producing general agents, brokerage
offices, and corporate partnership arrangements. Individual annuities are also
marketed through financial institutions. The employee benefits segment contains
products that are sold to or through corporate customers and certain affinity
groups, including permanent and term life insurance, disability, medical stop-
loss, cancer, and accidental death and dismemberment protection.
On , 19 , the Company completed the acquisition of Paul Revere.
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Paul Revere's principal operations in the United States and Canada are conducted
through its wholly owned subsidiaries, The Paul Revere Life Insurance Company
("Paul Revere Life"), The Paul Revere Variable Annuity Insurance Company ("Paul
Revere Variable"), and The Paul Revere Protective Life Insurance Company.
Disability insurance has been Paul Revere's primary product line since Paul
Revere Life's founding in 1895. In addition to its disability insurance
products, Paul Revere also markets individual life insurance, group life, and
dental insurance and annuity products.
The Company's Common Stock trades on the NYSE under the symbol "PVT." The
Company's principal executive offices are located at 1 Fountain Square,
Chattanooga, Tennessee 37402, and its telephone number is (423) 755-1011.
RISK FACTORS
In addition to the other information contained in this Prospectus,
prospective investors should consider carefully the following information
relating to the Company and the Common Stock before making an investment in the
Common Stock offered hereby.
RESERVES
The Company maintains reserves for future policy benefits and unpaid claims
expenses which include policy reserves and claims reserves established for its
individual disability insurance, group insurance, and individual life insurance
products. Policy reserves represent the portion of premiums received which are
reserved to provide for future claims. Claims reserves are established for
future payments not yet due on claims already incurred, primarily relating to
individual disability and group disability insurance products. Neither
generally accepted accounting principles nor statutory reserves represent an
exact calculation of future benefit liabilities but are instead estimates made
by the Company using actuarial and statistical procedures. However, there can
be no assurance that any such reserves would be sufficient to fund their future
respective liabilities in all circumstances. Future loss development could
require reserves for prior periods to be increased, which would adversely affect
earnings in future periods. Adjustments to reserve amounts may be required in
the event of changes from the assumptions regarding future morbidity (the
incidence of claims and the rate of recovery, including the effects thereon of
inflation, and other societal and economic factors), persistency, mortality, and
interest rates used in calculating the reserve amounts.
CAPITAL ADEQUACY
The capacity for an insurance company's growth in premiums is in part a
function of its statutory surplus. Maintaining appropriate levels of statutory
surplus, as measured by state insurance regulators, is considered important by
state insurance regulatory authorities and the private agencies that rate
insurers' claims-paying abilities and financial strength. Failure to maintain
certain levels of statutory surplus could result in increased regulatory
scrutiny, action by state regulatory authorities or a downgrade by the private
rating agencies.
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Effective in 1993, the National Association of Insurance Commissioners
adopted a risk-based capital ("RBC") formula, which prescribes a system for
assessing the adequacy of statutory capital and surplus for all life and health
insurers. The basis of the system is a risk-based formula that applies
prescribed factors to the various risk elements in a life and health insurer's
business to report a minimum capital requirement proportional to the amount of
risk assumed by the insurer. The life and health RBC formula is designed to
annually measure (i) the risk of loss from asset defaults and asset value
fluctuation, (ii) the risk of loss from adverse mortality and morbidity
experience, (iii) the risk of loss from mismatching of asset and liability cash
flow due to changing interest rates and (iv) business risks. The formula is to
be used as an early warning tool to identify possible inadequately capitalized
companies for purposes of initiating regulatory action. The formula is intended
to be used as a regulatory tool only and is not intended as a means to rank
insurers generally.
Based on computations made by the Company and Paul Revere in accordance
with the prescribed life and health RBC formula, each of the Company's and Paul
Revere's life insurance subsidiaries exceeded the minimum capital requirements
at December 31, 1995.
During 1995 and 1996, the Commissioner of Insurance of the Commonwealth of
Massachusetts (the "Massachusetts Insurance Commissioner") conducted a
quadrennial examination of Paul Revere Life and Paul Revere Variable for the
period ended December 31, 1994. In connection with this examination, as well as
in consideration of Paul Revere's 1995 comprehensive study of its statutory
reserves, Paul Revere Life and Paul Revere Protective strengthened their
individual disability statutory reserves by a combined total of $35 million and
reflected this strengthening in the annual statutory financial statements for
the year ended December 31, 1995.
During the third quarter of 1996, Paul Revere initiated a comprehensive
study of the adequacy of its individual disability statutory reserves to
consider experience through September 30, 1996. The Massachusetts Insurance
Commissioner has determined to update its examination of Paul Revere's statutory
reserves to review the results of Paul Revere's statutory reserve study. The
statutory reserve study, and consequently the review of the Massachusetts
Insurance Commissioner, have not yet been completed. In connection with the
Paul Revere Merger, Textron Inc. ("Textron"), the principal shareholder of Paul
Revere, agreed to provide additional capital to Paul Revere prior to the
effective time of the Paul Revere Merger, based upon a final determination of
the required levels of Paul Revere's statutory reserves, subject to the
limitation that Textron was required to contribute at least $100 million but not
more than $180 million.
DISABILITY INSURANCE
Disability insurance may be affected by a number of social, economic,
governmental, competitive, and other factors. Changes in societal attitudes,
work ethics, motivation, stability, and mores can significantly affect the
nature of any demand for disability products. Economic conditions affect not
only the market for disability products, but also significantly affect the
claims rates and length of claims. The climate and the nature of competition in
disability insurance have also been markedly affected by the growth of Social
Security, workers' compensation, and other governmental programs in the
workplace. The nature of that portion of the Company's outstanding insurance
business that consists of non-cancelable disability policies, whereby the policy
is guaranteed renewable through the life of the policy at a fixed premium, does
not permit the Company to adjust its premiums on business in-force on account of
changes effected by any of such factors. Disability insurance products are
important products for the Company. To the extent that disability products are
adversely affected in the future as to sales or claims, the business or results
of operations of the Company could be materially adversely affected.
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COMPETITION
All of the Company's businesses are highly regulated and competitive. The
Company's profitability is affected by a number of factors, including rate
competition, frequency of claims, lapse rates, government regulation, interest
rates, and general business considerations. There are many insurance companies
which actively compete with the Company in its lines of business, some of which
are larger and have greater financial resources than the Company, and there is
no assurance that the Company will be able to compete effectively against such
companies in the future.
EFFECT OF THE MERGER; INTEGRATION OF OPERATIONS
The success of the Paul Revere Merger will be determined by various
factors, including the financial performance of the combined company's
operations after the Paul Revere Merger and management's ability to integrate
effectively the operations of the Company and Paul Revere to realize the
expected cost savings beginning primarily in 1997 through combining certain
functions of both the Company and Paul Revere and restructuring the field
organizations of both companies. The integration of the operations of Paul
Revere and the Company may be negatively affected if, among other things, the
proposed changes are not made, customers do not react positively to some of the
planned changes intended to increase service or integrate the businesses of the
two companies, unanticipated offsetting costs are incurred, or costs or
difficulties related to the integration of the businesses of the Company and
Paul Revere are greater than expected. There can be no assurance that the
anticipated benefits of the Paul Revere Merger will be realized or that the Paul
Revere Merger will not adversely affect the future operating results of the
Company.
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SELLING STOCKHOLDERS
The Shares offered hereby are owned by and offered for the account of
Zurich Insurance Company, an insurance company organized under the laws of
Switzerland ("Zurich"), and Longfellow I, LLC, a Delaware limited liability
company ("Longfellow") and, together with Zurich, the "Selling Stockholders").
The Company will not receive any of the proceeds from the sale of the Shares.
Zurich acquired the Shares from the Company pursuant to an Amended and Restated
Common Stock Purchase Agreement, dated as of May 31, 1996, between the Company
and Zurich (the "Zurich Purchase Agreement"). Longfellow acquired the Shares
held by it from Zurich immediately following the acquisition of such Shares by
Zurich from the Company pursuant to the Zurich Purchase Agreement. If all
6,349,207 of the Shares offered by the Zurich and all 3,174,603 of the Shares
offered by Longfellow were sold, the Selling Stockholders would not have any
beneficial ownership of any shares of the Company's Common Stock.
ZURICH COMMON STOCK INVESTMENT
Pursuant to the Zurich Purchase Agreement, Zurich purchased from the
Company 9,523,810 newly issued shares of Common Stock at a price per share of
$31.50 in cash, or a total purchase price of $300,000,000 (the "Zurich Common
Stock Investment"). The net proceeds from the Zurich Common Stock Investment
were used by the Company to help finance a portion of the cash payments to be
made to Paul Revere stockholders in connection with the Paul Revere Merger. In
connection with the Zurich Purchase Agreement, the Company agreed to pay or
reimburse Zurich and its affiliates for all out-of-pocket expenses (including
the reasonable fees and disbursements of legal counsel and investment or other
advisors) in connection with the Zurich Purchase Agreement and certain other
matters, provided that the aggregate of such amounts did not exceed $1,500,000.
The Company also has agreed to indemnify and hold harmless Zurich and its
officers, partners, directors, employees and affiliates from and against all
actions, suits, proceedings, claims, losses, damages, liabilities or expenses of
any kind or nature whatsoever ("Claims"), including reasonable legal expenses,
which may be incurred by or asserted against or involve Zurich or any of its
officers, partners, directors, employees or affiliates as a result of any third
party claim arising out of the transactions contemplated by the Zurich Purchase
Agreement, unless such Claim arises from any material breach by Zurich of the
Zurich Purchase Agreement or the gross negligence or willful misconduct of an
indemnified party.
ZURICH RELATIONSHIP AGREEMENT
In connection with the execution of the Zurich Purchase Agreement, the
Company and Zurich have entered into the Amended and Restated Relationship
Agreement, dated as of May 31, 1996 between Zurich and the Company (the "Zurich
Relationship Agreement"), which sets forth certain rights of Zurich to designate
persons to serve as members of the Board of Directors of the Company and certain
standstill arrangements entered into by Zurich and the Company. Longfellow will
agree to be bound by certain of the standstill arrangements set forth in the
Zurich Relationship Agreement.
Board Appointments. The parties have agreed pursuant to the Zurich
Relationship Agreement that, while Zurich remains the beneficial owner of 10% or
more of the outstanding shares of Company voting securities, Zurich shall be
entitled to designate two persons to serve as directors of the Company and any
of its subsidiaries. While Zurich owns between 5% and 10% of the outstanding
shares of Company voting securities, Zurich shall have the right to designate
one such person to serve as a director. As long as Zurich's ownership of
Company voting securities remains above 5% of the shares outstanding, Zurich is
entitled to have a Zurich designee serve on the Executive Committee (or other
committee or group performing similar functions) of each board of directors. In
the event Zurich and its affiliates are the beneficial owners of less than 5% of
the Company voting securities, Zurich will not be entitled to designate any
person to serve as a director of the Company. As of the date of this
Prospectus, Zurich beneficially owns approximately 15% of the outstanding
Company voting securities (including shares held by Longfellow as to which
Zurich has the power to vote), and accordingly Zurich is entitled to appoint two
members of the Company's Board of Directors.
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<PAGE>
The Company has agreed to use its reasonable efforts to cause the election
of the number of directors contemplated above, including (i) placing Zurich
designees on the slate of directors recommended to stockholders at each annual
meeting at which a designee is entitled to designate a person to serve, unless
(x) a Zurich designee requests not to be included or (y) service by a Zurich
designee would violate applicable law or regulation (in which case Zurich may
designate an alternate to serve), and (ii) in the event a Zurich designee is
unable to serve, or is removed or withdraws after service has commenced, Zurich
may designate a person to serve as such director's replacement. Zurich also
agrees to use all reasonable efforts to cause a Zurich designee(s) to resign
from office in the event that its ownership of the Company securities falls
below the mandatory thresholds set forth above. In the event the Company's
Board of Directors is classified at some point, Zurich may appoint its designees
to different classes.
Standstill Agreement. The Zurich Relationship Agreement sets forth the
following conditions and limitations in connection with Zurich's ownership of
Common Stock which are to be effective for a period of seven years from the date
the Zurich Common Stock Investment was consummated (the "Zurich Closing").
Zurich and its affiliates have agreed not to acquire shares of Common Stock in
amounts which would cause Zurich's ownership of Common Stock to exceed the
percentage of the outstanding Common Stock represented by the shares of Common
Stock owned by Zurich immediately following consummation of the Paul Revere
Merger and the Zurich Common Stock Investment (the "Threshold Percentage"),
provided that Zurich and its affiliates are not prohibited from acquiring shares
of Common Stock that would cause Zurich and its affiliates to exceed the
Threshold Percentage if (i) such shares are acquired from the Maclellan
Stockholders (as defined below) or are acquired from Textron (with certain
restrictions and limitations) or are acquired from other persons under certain
limited circumstances, and (ii) after giving effect to such acquisition of
Common Stock, Zurich and its affiliates would not beneficially own more than 40%
of the outstanding shares of Common Stock. Notwithstanding the foregoing,
Zurich may acquire shares of Common Stock from the Maclellan Stockholders in
amounts that would result in Zurich beneficially owning more than 40% of the
outstanding Common Stock if Zurich first offers to purchase all of the
outstanding shares of Common Stock at the same price pursuant to either a tender
offer to all stockholders or a binding merger agreement. In addition, the
Maclellan Stockholders have agreed that in the event that any of the Maclellan
Stockholders desire to sell their shares of Common Stock, such Maclellan
Stockholders shall first offer to Zurich the opportunity to purchase all, but
not less than all, of such shares.
The Zurich Relationship Agreement also provides that, for a period of seven
years from the Zurich Closing, Zurich and its affiliates may not dispose of its
beneficial interest in any Company voting securities, except: (a) to the Company
or to any person approved by a majority of the Board of Directors of the
Company; (b) in conversion, exchange or otherwise pursuant to the terms of such
Company voting securities; (c) in a merger or consolidation in which the Company
is acquired, in a plan of liquidation of the Company, or pursuant to a tender
offer under the terms of the Zurich Relationship Agreement; (d) pursuant to a
bona fide underwritten public offering; (e) pursuant to Rule 144 under the
Securities Act; (f) to Zurich or an affiliate of Zurich, subject to transfer and
buyback restrictions; (g) subject to certain restrictions and exceptions, to
Insurance Partners, L.P. or Insurance Partners Offshore (Bermuda), L.P. or one
of more affiliates of either of them (which would include Longfellow); and (h)
in any other manner, provided that prior to making any offer to sell, sale or
other transfer to any person pursuant to this clause (h) of Company voting
securities representing beneficial ownership of more than two percent (2%) of
the then outstanding Company voting securities, Zurich must give the Company the
opportunity to purchase, or to designate an alternative purchaser of, such
Company voting securities in the manner set forth in the Zurich Relationship
Agreement.
ZURICH REGISTRATION RIGHTS AGREEMENT
In connection with the execution of the Zurich Purchase Agreement, the
Company and Zurich have entered into the Zurich Registration Rights Agreement,
pursuant to which the Company has caused to be prepared and has filed with the
Commission the Registration Statement of which this Prospectus forms a part,
with respect to the sale by the Selling Stockholders from time to time of the
Shares in accordance with the intended methods of distribution described under
"Distribution of Shares." The Company has agreed to use its reasonable best
efforts to keep the Registration Statement continuously effective for a period
that will terminate when all of the Shares included in the Registration
Statement and offered by this Prospectus have been sold, subject to customary
suspension and extension periods. The Company has also
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<PAGE>
granted to the Selling Shareholders certain limited demand rights and unlimited
"piggyback" registration rights with respect to the shares beneficially owned by
Zurich.
In addition, the Company has agreed to pay all expenses incurred by it and
the Selling Stockholders in connection with the Securities Act registration of
the Shares, including, without limitation, registration and filing fees of the
Commission, reasonable fees and disbursements of counsel to the Company and the
Selling Stockholders, any applicable state securities and "blue sky" law
registration and qualification fees, accountants' fees and expenses, transfer
taxes, and fees of transfer agents and registrars. Moreover, the Company on the
one hand, and the Selling Stockholders on the other hand, have agreed to
indemnify each other and certain affiliated parties and "control persons"
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act) from and against certain liabilities, including liabilities under
the Securities Act.
ZURICH STRATEGIC RELATIONSHIP
The marketing agreement between Zurich and the Company (the "Marketing
Agreement") is intended to set forth the terms of a strategic marketing
relationship between Zurich and the Company (the "Zurich Strategic
Relationship"). Under the terms of the Zurich Strategic Relationship, the
Company would agree to utilize products developed by Zurich whenever possible
and to offer to its customers mutual funds and institutional asset management
services offered by Zurich in return for "normal and customary" fees.
Additionally, Zurich would agree to offer the Company's individual disability
products through Zurich's United States marketing channels whenever possible,
for which Zurich would receive consideration for acting as an intermediary. The
parties also would agree to explore opportunities to market individual and group
disability products outside the United States. In the event the Company decided
to engage in a significant reinsurance transaction with respect to its
individual disability business, Zurich would have the right to provide such
reinsurance on market terms. Zurich and the Company would agree to work
together to explore other opportunities to leverage each other's strengths. The
Marketing Agreement contemplates that each of Zurich and the Company 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 Zurich Strategic
Relationship.
MACLELLAN STOCKHOLDER AGREEMENT
In connection with the Zurich Purchase Agreement, Zurich entered into an
Amended and Restated Family Stockholder Agreement, dated as of May 31, 1996 (the
"Maclellan Stockholder Agreement"), with certain holders of Common Stock
referred to as "Stockholders" in the Maclellan Stockholder Agreement (the
"Maclellan Stockholders"), pursuant to which the Maclellan Stockholders have
agreed to grant certain rights of first offer to Zurich to purchase their shares
of Common Stock, as more fully described below.
The Maclellan Stockholders have agreed that, until the earlier of (i) such
time as Zurich and its affiliates beneficially own less than 5% of the Company
voting securities, and (ii) seven years from the Zurich Closing, prior to making
any sale or transfer of their shares of Common Stock, the Maclellan Stockholders
will give Zurich notice of any intention to sell or transfer and of the terms of
such proposed sale or transfer. Zurich shall then have the right to elect to
purchase such shares at the same terms. This right of first offer is not
applicable to the transfer of shares (x) pursuant to a change of control (as
defined in the Maclellan Stockholder Agreement), (y) pursuant to certain
permitted transfers, including transfers among Maclellan Stockholders, and (z)
in connection with any sale of at least 70% of the shares then held by the
Maclellan Stockholders pursuant to a firm commitment underwritten registration
under the Securities Act. Notwithstanding its right of first offer under the
Maclellan Stockholder Agreement, Zurich remains subject to the limitations on
stock ownership pursuant to the Zurich Relationship Agreement.
-8-
<PAGE>
DISTRIBUTION OF SHARES
The Shares may be sold from time to time by the Selling Stockholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made from time to time (i) in transactions (which may include block sales) on
the NYSE or such other national securities exchange or automated interdealer
quotation system on which shares of Common Stock are then listed, (ii) in
negotiated transactions, or (iii) through a combination of such methods of sale,
at fixed prices, which may be changed, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices, or at negotiated
prices. The Shares may be sold directly to purchasers or through underwriters,
agents or broker-dealers by one or more of the following: (a) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; (b)
purchases by a broker or dealer as principal and resale by such broker or dealer
for its account pursuant to this Prospectus; (c) a block trade in which the
broker or dealer so engaged will attempt to sell the Shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction; (d) an exchange distribution in accordance with the rules of the
exchange or automated interdealer quotation system on which the Common Stock is
then listed; and (e) through the writing of options on the Shares. Any such
underwriters, agents or broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of the Shares for which such underwriters, agents or broker-dealers
may act as agents or to whom they sell as principals, or both (which
compensation as to an underwriter, agent or particular broker-dealer will be
negotiated prior to the sale and may be in excess of customary compensation).
If required by applicable law at the time a particular offer of Shares is made,
the terms and conditions of such transaction will be set forth in a supplement
to this Prospectus. In addition, any Shares covered by this Prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act may be sold under
Rule 144 rather than pursuant to this Prospectus.
In connection with the distribution of the Shares, the Selling Stockholders
may enter into hedging transactions with broker-dealers. In connection with
such transactions, broker-dealers may engage in short sales of the Shares in the
course of hedging the positions they assume with the Selling Stockholders. The
Selling Stockholders may also sell the Shares short and redeliver the Shares to
close out the short positions. The Selling Stockholders may also enter into
option or other transactions with broker-dealers which require the delivery to
the broker-dealer of the Shares. The Selling Stockholders may also loan or
pledge the Shares to a broker-dealer, and the broker-dealer may sell the Shares
so loaned, or upon a default the broker-dealer may effect sales of the pledged
shares. In addition to the foregoing, the Selling Stockholders may from time to
time enter into other types of hedging transactions.
The Selling Stockholders and any underwriters, agents or broker-dealers who
act in connection with the sale of the Shares hereunder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any compensation received by them might be deemed to be underwriting discounts
and commissions under the Securities Act.
Under agreements that the Selling Stockholders and the Company may enter
into, underwriters, broker-dealers and/or agents who participate in the
distribution of the Shares may be entitled to indemnification by the Selling
Stockholders and the Company against certain liabilities, including liabilities
under the Securities Act. Pursuant to the Zurich Registration Rights Agreement,
the Selling Stockholders and the Company have agreed to indemnify each other
against certain liabilities, including liabilities under the Securities Act.
The Company will bear all expenses in connection with the registration and sale
of the Shares being offered by the Selling Stockholders, other than discounts,
concessions or commissions to underwriters, agents, brokers or dealers, fees and
expenses of counsel and other advisors to the Selling Stockholder, and all
transfer or other taxes on the sale of the Shares.
LEGAL MATTERS
Certain legal matters in connection with the Common Stock offered hereby
will be passed upon for the Company by Alston & Bird, Atlanta, Georgia.
-9-
<PAGE>
EXPERTS
The consolidated financial statements of Provident incorporated by
reference in Provident's Annual Report on Form 10-K for the year ended December
31, 1995, have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon incorporated by reference therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
With respect to Provident's unaudited condensed consolidated interim
financial information for the three-month periods ended March 31, 1996, June 30,
1996 and September 30, 1996, incorporated by reference in this Registration
Statement, Ernst & Young LLP have reported that they have applied limited
procedures in accordance with professional standards for a review of such
information. However, their separate report, included in Provident's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1996, June 30, 1996 and
September 30, 1996, and incorporated herein by reference, state that they did
not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted considering the limited nature of the review
procedures applied. The independent auditors are not subject to the liability
provisions of Section 11 of the Securities Act for their reports on the
unaudited interim financial information because these reports are not a "report"
or "part" of the Registration Statement, prepared or certified by the auditors
within the meaning the meaning of Section 7 and 11 of the Securities Act.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents have been filed by the Company (File No. 1-11834)
with the Securities and Exchange Commission ("Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and are
incorporated herein by reference:
1. the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
2. the Company's Quarterly Report on Form 10-Q for the fiscal quarters
ended March 31, 1996, June 30, 1996, and September 30, 1996;
3. the Company's Current Report on Form 8-K dated April 29, 1996, its
Current Report on Form 8-K dated May 31, 1996, and its Current Report on 8-K
dated , 19 ; and
----------- --
4. the description of the Company's Common Stock set forth in the
Company's registration statement filed with the Commission pursuant to Section
12 of the Exchange Act, and any amendment or report filed for the purpose of
updating any such description.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering hereunder shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing of
such documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for all purposes to the
extent that a statement contained herein or in any other subsequently filed
document which is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as modified or superseded, to constitute a part of this
Prospectus.
The Company will provide, without charge, to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any and all of the documents incorporated by reference (not including
the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents). Requests for such copies should
be directed to Susan N. Roth, Provident Companies, Inc., 1 Fountain Square,
Chattanooga, Tennessee 37402, or by telephone at (423) 755-1011 or facsimile at
(423) 755-3194.
-10-
<PAGE>
======================================== =====================================
NO DEALER, SALESPERSON OR ANY OTHER
PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY 9,523,810 SHARES
REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS, AND IF
GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR THE SELLING STOCKHOLDER.
THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL, OR A SOLICITATION
OF AN OFFER TO BUY, TO ANY PERSON IN
ANY JURISDICTION IN WHICH SUCH OFFER
TO SELL OR SOLICITATION IS NOT
AUTHORIZED, OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO, OR TO ANY [LOGO]
PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE HEREOF.
PROVIDENT
COMPANIES, INC.
___________________
TABLE OF CONTENTS
PAGE COMMON STOCK
----
AVAILABLE INFORMATION.............
FORWARD LOOKING STATEMENTS........
THE COMPANY.......................
RISK FACTORS......................
SELLING STOCKHOLDERS..............
DISTRIBUTION OF SHARES............
LEGAL MATTERS.....................
EXPERTS........................... P R O S P E C T U S
DOCUMENTS INCORPORATED
BY REFERENCE....................
________________, 1996
======================================== =====================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the distribution of the Common Stock are
set forth in the following table. All amounts except the Securities and
Exchange Commission registration fee are estimated. The expenses set forth
below will be borne by the Company. The Selling Stockholders will pay all
discounts, concessions or commissions to underwriters, agents, brokers or
dealers, all fees and expenses of its counsel and other advisors, and all
transfer or other taxes on the sale of the Shares.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee... $132,395
Legal fees and expenses............................... 10,000
Accountants' fees and expenses........................ 10,000
Miscellaneous......................................... 2,605
--------
Total............................................. $155,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation and Bylaws provide for
indemnification of directors and officers of the Registrant to the full extent
permitted by Delaware law.
Section 145 of the General Corporation Law of the State of Delaware
provides generally that a corporation may indemnify any person who was or is a
part or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or was serving at its
request in such capacity in another corporation or business association, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
In addition, pursuant to the authority of Delaware law, the Certificate of
Incorporation of the Registrant also eliminates the monetary liability of
directors to the fullest extent permitted by Delaware law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed that in the opinion of the Securities and Exchange Commission
(the "Commission") such indemnification is against public policy as expressed in
the Act and is therefore unenforceable.
Pursuant to an Amended and Restated Registration Rights Agreement between
the Company and Zurich Insurance Company, the Selling Stockholders have agreed
to indemnify the Company and its directors, officers and controlling persons
against all losses, claims, damages and liabilities that arise out of or are
based upon any alleged untrue statement of material fact in this Registration
Statement, or any alleged omission to state a material fact required to be
stated herein or necessary to make the statements herein not misleading, but
only with respect to information furnished in writing by or on behalf of the
Selling Stockholders for use in this Registration Statement.
II-1
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- - ----------- ---------------------------------------------------
<S> <C>
5.1 Opinion of Alston & Bird.
15.1 Acknowledgment of Ernst & Young LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Alston & Bird (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
99.1 Amended and Restated Registration Rights
Agreement, dated as of May 31, 1996, by and
between the Company and Zurich Insurance Company.
</TABLE>
ITEM 17. UNDERTAKINGS
A. RULE 415 OFFERING.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. INDEMNIFICATION OF OFFICERS, DIRECTORS AND CONTROLLING PERSONS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chattanooga, State of Tennessee, as of December 13,
1996.
PROVIDENT COMPANIES, INC.
By: /s/ J. Harold Chandler
------------------------------------
J. Harold Chandler
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas R. Watjen and Susan N. Roth, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of the, or their or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of December 13, 1996.
<TABLE>
<CAPTION>
Signatures Title
- - --------------------------- --------------------------------------------------
<S> <C>
/s/ J. Harold Chandler Chairman of the Board, President and Chief
- - --------------------------- Executive Officer (principal executive officer)
J. Harold Chandler
/s/ Thomas R. Watjen Executive Vice President and Chief Financial
- - --------------------------- Officer (principal financial officer)
Thomas R. Watjen
/s/ Ralph A. Rogers, Jr. Vice President and Controller
- - --------------------------- (principal accounting officer)
Ralph A. Rogers, Jr.
/s/ William L. Armstrong Director
- - ---------------------------
William L. Armstrong
/s/ Charlotte M. Heffner Director
- - ---------------------------
Charlotte M. Heffner
/s/ Hugh B. Jacks Director
- - ---------------------------
Hugh B. Jacks
/s/ William B. Johnson Director
- - ---------------------------
William B. Johnson
</TABLE>
II-4
<PAGE>
/s/ Hugh O. Maclellan, Jr. Director
- - ---------------------------
Hugh O. Maclellan, Jr.
/s/ A. S. MacMillan Director
- - ---------------------------
A. S. MacMillan
/s/ C. William Pollard Director
- - ---------------------------
C. William Pollard
/s/ Scott L. Probasco, Jr. Director
- - ---------------------------
Scott L. Probasco, Jr.
Director
- - ---------------------------
Steven S Reinemund
Director
- - ---------------------------
Burton E. Sorenson
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- - ------- ---------------------------------------------------
<S> <C>
5.1 Opinion of Alston & Bird.
15.1 Acknowledgment of Ernst & Young LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Alston & Bird (included in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page).
99.1 Amended and Restated Registration Rights
Agreement, dated as of May 31, 1996, by and
between the Company and Zurich Insurance Company.
</TABLE>
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF ALSTON & BIRD APPEARS HERE]
December 13, 1996
Provident Companies, Inc.
1 Fountain Square
Chattanooga, Tennessee 37402
Re: Form S-3 Registration Statement -- Resale of Stock on Behalf of
Certain Selling Stockholders
Ladies and Gentlemen:
We have acted as counsel to Provident Companies Inc., a Delaware
corporation (the "Company"), in connection with the above referenced
Registration Statement on Form S-3 (the "Registration Statement") being filed by
the Company with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended, and covering 9,523,810 shares (the
"Shares") of the Company's common stock, $1.00 par value ("Common Stock"), which
are being offered for the account of Zurich Insurance Company and [Insurance
Partners, L.P.] (the "Selling Stockholders"). The Company will not receive any
proceeds from the sale of the Shares. The opinion hereinafter set forth is
provided to the Commission at the request of the Company pursuant to Item 16 of
Form S-3 and Item 601(b) (5) of Regulation S-K.
This opinion letter is limited by, and is in accordance with, the January
1, 1992 edition of the Interpretive Standards Applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia (the
"Interpretive Standards"), which Interpretative Standards are incorporated in
this opinion letter by this reference. Capitalized terms used in this opinion
letter and not otherwise defined herein shall have the meanings assigned to such
terms in the Interpretive Standards and in the Registration Statement.
In the capacity described above, we have considered such matters of law and
of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Company, certificates of public officials and such other documents as we have
deemed appropriate as a basis for the opinions hereinafter set forth. The
opinions set forth herein are limited to the General Corporation Law of the
State of Delaware.
Based upon the foregoing, it is our opinion that the Shares are legally and
validly issued, fully paid and nonassessable.
This opinion letter is provided to you for your benefit and for the benefit
of the Commission solely with regard to the Registration Statement, may be
<PAGE>
relied upon by you and the Commission only in connection with the Registration
Statement, and may not be relied upon by any other person or for any other
purpose without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD
By: /s/ David E. Brown, Jr.
-------------------------------------
A Partner
<PAGE>
Exhibit 15.1
ACKNOWLEDGEMENT
Board of Directors and Shareholders
Provident Companies, Inc.
We are aware of the incorporation by reference in the Registration Statement
(Form S-3) of Provident Companies, Inc. for the registration of 9,523,810 shares
of its common stock of our reports dated May 3, 1996, August 8, 1996 and
November 13, 1996 relating to the unaudited condensed consolidated interim
financial statements of Provident Companies, Inc., that are included in its
Forms 10-Q for the quarters ended March 31, 1996, June 30, 1996 and
September 30, 1996.
Pursuant to Rule 436(e) of the Securities Act of 1933 our reports are not a part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
ERNST & YOUNG LLP
Chattanooga, Tennessee
December 11, 1996
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Provident Companies,
Inc. for the registration of 9,523,810 shares of its common stock and to the
incorporation by reference therein of our reports dated February 8, 1996 with
respect to the consolidated financial statements of Provident Companies, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1995 and the related financial statement schedules included
therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chattanooga, Tennessee
December 11, 1996
<PAGE>
Exhibit 99.1
Amended and Restated Registration Rights Agreement,
dated as of May 31, 1996, by and between
Provident Companies, Inc. and Zurich Insurance Company
<PAGE>
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 parties hereto signed the original
Registration Rights Agreement and such parties desire to amend and restate such
Agreement as of such date; 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;
-2-
<PAGE>
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:
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(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);
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(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
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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.
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(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 Stock Purchase Agreement), the Company shall file a "shelf" registration
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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
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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
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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)
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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.
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(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.
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(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.
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<PAGE>
(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
-14-
<PAGE>
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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A
SHARES
FAMILY SHAREHOLDERS OWNED AS
------------------- OF 3/4/96
---------
<S> <C>
Suntrust Trust, D. Porter Jr., K.H. Maclellan & R. H.. Maclellan, 538,345
TTEES UAW R.J. Maclellan for R.L. Maclellan Family Trust (#2151)
Suntrust Trust, D. Porter Jr., K.H. Maclellan & R. H. Maclellan, 116,425
TTEES UAW R.J. Maclellan for R.L. Maclellan Family Trust Inv. Inc.
(#215109)
Suntrust Trust, H.O. Maclellan Jr., C.M. Heffner & T.H. McCallie III, 522,615
TTEES UAW R.J. Maclellan Tr. for H.O. Maclellan Sr. Fam. (#2152)
Suntrust Trust, H.O. Maclellan Jr., C.M. Heffner & T.H. McCallie III, 120,675
TTEES UAW R.J. Maclellan Tr. for H.O. Maclellan Sr. Fam. Inv. Inc.
(#215209)
Suntrust Trust, D. Porter Jr., K.H. Maclellan & R.H. Maclellan, 535,820
TTEES UAW Cora L. Maclellan Tr. For R.L. Maclellan Fam. (#2155)
Suntrust Trust, D. Porter Jr., K.H. Maclellan & R.H. Maclellan, 97,520
TTEES UAW Cora L. Maclellan Tr. For Maclellan Fam. Inv. Inc.
(#215509)
Suntrust Trust, H.O. Maclellan Jr., C.M. Heffner & T.H. Macallie III, 518,695
TTEES UAW Cora L. Maclellan for H.O. Maclellan Sr. Fam. Tr
(#2156)
Suntrust Trust, H.O. Maclellan Jr., C.M. Heffner & T.H. MacCallie III, 91,110
TTEES UAW Cora L. Maclellan for H.O. Maclellan Sr. Fam. Inv. Inc.
(#215609)
Suntrust Trust, H.O. Maclellan Jr., D. Porter Jr. & K.H. Maclellan, 3,470,123
TTEES for R.J. Maclellan Trust for the Maclellan Foundation Inc.
(#2150)
Suntrust Trust, H.O. Maclellan Jr., D. Porter Jr & K.H. Maclellan, 34,538
TTEES for Cora L. Maclellan Trust for the Maclellan Foundation Inc.
(#2154)
The Maclellan Foundation Inc. 8,115,514
Christian Education Charitable Trust 711,100
H.O. Maclellan Jr., C.M. Heffner, Henry A. Henegar, Lee S. 392,706
Anderson, Frank A. Brock, TTEES U/A Dtd 4/23/93, Hugh & Charlotte
Maclellan Charitable Trust
Helen M. Tipton Charitable Trust 1,565,842
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Estate of Hugh O. Maclellan Sr. 50,000
Mrs. Charlotte F. Maclellan 390,725
C.M. Heffner, H.O. Maclellan Jr. & US Tr. Co. of FL TTEES UTA 67,200
Dtd 8/2/52 with C.F. Maclellan for the Primary Benefit of Charlotte M. Heffner
J.P. Gaither, H.O. Maclellan Jr. & C.M. Heffner, TTEES UTA Dtd 69,000
6/2/52 with C.F. Maclellan for H.O. Maclellan Jr.
Hugh O. Maclellan Jr. & Charlotte M. Heffner Co-TTEES U/A H.O. 60,000
Maclellan Sr. FBO Great-grandchildren
Mrs. Kathrina H. Maclellan 1,389,344
Trust U/W Anne Maclellan Munford (Cede & Co) 585,000
US Trust Company of NY, Successor TTEE for Lara L. Munford U/A 2,000
with Kathrina H. Maclellan Dtd 8/5/76
US Trust Company as Corporate TTEE Charitable Remainder Unitrust 50,000
of Kathrina H. Maclellan 8/11/76
Suntrust Trust, Trustee UAW Robert Howze Maclellan Dtd 9/22/88 259,230
(US-TTEE 249,507; ANB-DTC 19,523)
Suntrust Trust, C/F J.F. Decosimo & J.N. Irvine, Co-TTEES UAW 2,397
Robert H. Maclellan for Heather Howze Maclellan (ST-Summit)
Suntrust Trust, C/F J.F. Decosimo & J.N. Irvine, Co-TTEES UAW 2,397
Robert H. Maclellan for Ian Llewellyn Maclellan (ST-Summit)
Trust for R.L. Maclellan & K.H. Maclellan Foundation U/A Mrs. 45,416
Kathrina H. Maclellan Dtd 1/4/73 (Cede & Co)
K.H. Maclellan & US Trust Company of NY, TTEES for Second 27,500
Charitable Remainder Unitrust of K.H. Maclellan Dtd 12/17/81 Their
Successor in Tr. & Assign
Hugh O. Maclellan Jr. 827,150
Hugh O. Maclellan Jr. & Suntrust Bank TTEES UTA 12/08/48 for 299,916
Hugh O. Maclellan Jr.
Hugh O. Maclellan Jr. TTEE FBO Catherine H. Maclellan Dtd. 51,091
11/19/66 UTA H.O. Maclellan Sr.
Hugh O. Maclellan, Jr. TTEE FBO Daniel O. Maclellan Dtd 7/8/68 51,060
UTA H.O. Maclellan Sr.
Hugh O. Maclellan Jr. TTEE FBO Christopher H. Maclellan UTA 47,435
H.O. Maclellan Sr.
H.O. Maclellan Jr. & Suntrust Trust, TTEES UITA of H.O. Maclellan 100,612
Sr. FBO Catherine H. Maclellan & Her Descs, Dtd 5/29/70 (#4629)
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
H.O. Maclellan Jr. & Suntrust Trust, TTEES UITA of H.O. Maclellan 100,523
Sr. FBO Daniel O. Maclellan & His Descs Dtd 5/29/70 (#4630)
H.O. Maclellan Jr. & Suntrust Trust, TTEES UITA of H.O. Maclellan 100,715
Sr. FBO Christopher H. Maclellan & His Descs Dtd 5/29/70 (#4631)
Hugh O. Maclellan Jr. & Charlotte M. Heffner, TTEES for Hugh O. 1,740
Maclellan Sr. Dtd 1/31/67
C.F. Maclellan, H.O. Maclellan Jr., L.S. Anderson & J.C. Stophel, 158,190
TTEES of the H.O.M. Sr. Char. Inc. Tr. Dtd 11/29/83 FBO Elizabeth
Maclellan
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel, 136,665
TTEES UTA H.O. Maclellan Sr. Dtd 12/31/76 FBO Christopher H.
Maclellan
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel, 136,665
TTEES UTA H.O. Maclellan Sr. Dtd 12/31/76 FBO Catherine H.
Maclellan
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel, 136,665
TTEES UTA H.O. Maclellan Sr. Dtd 12/31/76 FBO Daniel O.
Maclellan
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel, 136,670
TTEES UTA H.O. Maclellan Sr. Dtd 12/31/76 FBO Elizabeth
Maclellan
Hugh O. Maclellan Jr., TTEE UTA Dtd 12/15/83 FBO Elizabeth 3,320
Maclellan
Hugh O. Maclellan Jr. C/F Elizabeth Maclellan UTUGTMA 5,329
Hugh O. Maclellan Jr. C/F Hugh Owen Maclellan III UTUGTMA 5,079
Hugh O. Maclellan Jr. C/F Morgan Christopher Maclellan UTUGTMA 5,079
Christopher Hugh Maclellan (52 + 120, nominee name) 44,059
Christopher Hugh Maclellan, Cust. for Morgan Christopher Maclellan 688
Christopher Hugh Maclellan, Cust. for Hugh Owen Maclellan III 688
Christopher Hugh Maclellan, Cust. for Robert Browne Maclellan 688
Susan Maclellan (352 nominee name) 3,652
Daniel Owen Maclellan 29,800
Daniel O. Maclellan Cust. for Jacqueline Hannah Maclellan 688
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
Leslie Stophel Maclellan (746 nominee name) 1,518
Catherine Maclellan Heald 40,617
Catherine Maclellan Heald C/F Frances Anne Heald 3,130
Catherine Maclellan Heald C/F Hallie Elizabeth Heald 2,806
Catherine Maclellan Heald C/F Hamilton Reed Heald 688
Daryl Heald 1,432
Nancy Browne Maclellan 24,964
Nancy B. Maclellan & John P. Gaither, TTEES UTA Hugh O.
Maclellan Jr. Dtd 1/31/67 17,600
Charlotte Maclellan Heffner & NationsBank as Co-TTEES U/A H.O.
Maclellan Sr. Dtd 9/8/72 FBO Richard L. Heffner Jr. 74,170
Charlotte Maclellan Heffner & NationsBank as Co-TTEES U/A H.O.
Maclellan Sr. Dtd 9/8/72 FBO Thomas Maclellan Heffner 74,170
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel,
TTEES UTA H.O. Maclellan Sr. Dtd 12/31/76 FBO Richard L.
Heffner Jr. 136,665
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel,
TTEES UTA H.O. Maclellan Sr. Dtd 12/31/76 FBO Thomas M.
Heffner 136,670
Charlotte M. Heffner & Suntrust Bank Co-TTEES UTA Hugh O.
Maclellan Sr. 12/09/48 FBO Charlotte M. Heffner 294,695
Charlotte M. Heffner and Richard L. Heffner Sr. TTEES FBO Richard
L. Heffner Sr. UA Dtd 1/26/95 300,000
Charlotte M. Heffner 457,455
Richard L. Heffner, Sr. 9,482
Richard L. Heffner, Jr. 45,499
Christina M. Heffner 3,172
Thomas Maclellan Heffner 42,349
Irrevocable Trust 12/3/64 U/A H.O. Maclellan Sr. FBO Thomas 11,675
Maclellan Heffner, R.L. Heffner Sr., Trustee
Irrevocable Trust 6/1/62 U/A H.O. Maclellan Sr. FBO Richard L. 11,675
Heffner Jr., R.L. Heffner Sr., Trustee
Jean B. (Mrs. Jere) Tipton 61,000
TOTAL SHARES 23,967,036
</TABLE>
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