<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
PROVIDENT COMPANIES, INC.
-------------------------
(Name of Issuer)
Common Stock, Par Value $1.00
-----------------------------
(Title of Class of Securities)
743862 10 4
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(CUSIP Number)
Steven D. Germain
Zurich Centre Resource Limited
One Chase Manhattan Plaza
New York, New York 10005
(212) 898-5350
-------------------------------------
(Name, Address and Telephone Number
of Person Authorized to Receive Notices
and Communications)
- with copies to -
Thomas M. Cerabino, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
March 27, 1997
------------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement in Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
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*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 743862 10 4
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ZURICH INSURANCE COMPANY
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
AF
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Switzerland
7. SOLE VOTING POWER
9,523,810 (See Item 5 below)
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 6,349,207 (See Item 5 below)
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,523,810 (See Item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.6% (See Item 5 below)
14. TYPE OF REPORTING PERSON*
IC, HC, CO
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SCHEDULE 13D
CUSIP No. 743862 10 4
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CENTRE REINSURANCE LIMITED
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
7. SOLE VOTING POWER
4,523,812 (See Item 5 below)
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 4,523,812 (See Item 5 below)
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,523,812 (See Item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4% (See Item 5 below)
14. TYPE OF REPORTING PERSON*
IC, CO
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<PAGE>
SCHEDULE 13D
CUSIP No. 743862 10 4
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ZURICH REINSURANCE CENTRE, INC.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut
7. SOLE VOTING POWER
238,095 (See Item 5 below)
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 238,095 (See Item 5 below)
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
238,095 (See Item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4% (See Item 5 below)
14. TYPE OF REPORTING PERSON*
IC, CO
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SCHEDULE 13D
CUSIP No. 743862 10 4
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EMPIRE FIRE AND MARINE INSURANCE COMPANY
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Nebraska
7. SOLE VOTING POWER
126,984 (See Item 5 below)
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 126,984 (See Item 5 below)
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
126,984 (See Item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2% (See Item 5 below)
14. TYPE OF REPORTING PERSON*
IC, HC, CO
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<PAGE>
SCHEDULE 13D
CUSIP No. 743862 10 4
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UNIVERSAL UNDERWRITERS INSURANCE COMPANY
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri
7. SOLE VOTING POWER
317,460 (See Item 5 below)
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 317,460 (See Item 5 below)
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
317,460 (See Item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.5% (See Item 5 below)
14. TYPE OF REPORTING PERSON*
IC, HC, CO
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<PAGE>
SCHEDULE 13D
CUSIP No. 743862 10 4
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UNIVERSAL UNDERWRITERS LIFE INSURANCE COMPANY
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri
7. SOLE VOTING POWER
63,492 (See Item 5 below)
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 63,492 (See Item 5 below)
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
63,492 (See Item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.1% (See Item 5 below)
14. TYPE OF REPORTING PERSON*
IC, CO
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SCHEDULE 13D
CUSIP No. 743862 10 4
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
a[X]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Maryland
7. SOLE VOTING POWER
190,476 (See Item 5 below)
NUMBER OF 8. SHARED VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON 190,476 (See Item 5 below)
WITH
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
190,476 (See Item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.3% (See Item 5 below)
14. TYPE OF REPORTING PERSON*
IC, HC, CO
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<PAGE>
This Amendment No. 1 to Schedule 13D relates to the Common Stock, par
value $1.00 per share (the "Common Stock"), of Provident Companies, Inc.
("Provident" or the "Company"). This Amendment No. 1 amends the information set
forth in the initial statement on Schedule 13D, dated June 10, 1996 (the
"Initial Statement"), filed by Zurich Insurance Company. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned thereto in the
Initial Statement. The Initial Statement is amended as set forth herein.
Item 2. Identity and Background.
- ------ -----------------------
Item 2 of the Initial Statement is hereby amended and restated in its
entirety to read as follows:
This statement is being filed by and on behalf of the following persons
(collectively, the "Reporting Persons"):
(a) Zurich Insurance Company, a corporation organized under the laws of
Switzerland ("Zurich"). The address of the principal business and principal
office of Zurich is 2 Mythenquai, CH-8002 Zurich, Switzerland. Zurich and its
subsidiaries and affiliates are engaged in life and property and casualty
insurance, reinsurance, insurance related businesses and the asset
management business.
(b) Centre Reinsurance Limited, a corporation organized under the laws
of Bermuda ("Centre Re"). The address of the principal business and principal
office of Centre Re is Cumberland House, One Victoria Street, P.O. Box HM 1788,
Hamilton, HM HX, Bermuda. Centre Re, an indirect wholly owned subsidiary of
Zurich, is a Bermuda exempted insurance company.
(c) Zurich Reinsurance Centre, Inc., a corporation organized under the
laws of Connecticut ("ZRC"). The address of the principal business and principal
office of ZRC is One Chase Manhattan Plaza, 43rd Floor, New York, New York
10005. ZRC is engaged in the property and causalty reinsurance business. Zurich
and certain direct and indirect wholly owned subsidiaries of Zurich beneficially
own approximately 66% of the outstanding common stock of Zurich Reinsurance
Centre Holdings, Inc. which in turn owns 100% of ZRC.
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(d) Empire Fire and Marine Insurance Company, a corporation organized
under the laws of Nebraska ("Empire"). The address of the principal business and
principal office of Empire is 1624 Douglas Street, Omaha, NE 68102. Empire, an
indirect wholly owned subsidiary of Zurich, is engaged in insurance operations
and is an insurance holding company.
(e) Universal Underwriters Insurance Company, a corporation organized
under the laws of Missouri ("Universal"). The address of the principal business
and principal office of Universal is 6363 College Boulevard, Overland Park, KS
66211. Universal, an indirect wholly owned subsidiary of Zurich, is engaged in
insurance operations and is an insurance holding company.
(f) Universal Underwriters Life Insurance Company, a corporation
organized under the laws of Missouri ("Universal Life"). The address of the
principal business and principal office of Universal Life is 6363 College
Boulevard, Overland Park, KS 66211. Universal Life, an indirect wholly owned
subsidiary of Zurich, is engaged in insurance operations.
(g) Fidelity and Deposit Company of Maryland, a corporation organized
under the laws of Maryland ("Fidelity"). The address of the principal business
and principal office of Fidelity is 300 St. Paul Place, Baltimore, MD 21202.
Fidelity, a wholly owned subsidiary of Zurich, is engaged in insurance
operations and is an insurance holding company.
Information regarding the identity and background of the directors and
executive officers of each of the Reporting Persons is set forth in Schedule I
hereto, which is incorporated by reference in response to this Item 2.
None of the Reporting Persons, or to the knowledge of the Reporting
Persons, any of the directors or executive officers set forth in Schedule I
hereto, has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) during the last five years.
None of the Reporting Persons, or to the knowledge of the Reporting
Persons, any of the directors or executive officers set forth in Schedule I
hereto, has been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction as a result of which such Reporting Person,
director or executive officer was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws during the last five years.
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Item 3. Source and Amount of Funds or Other Consideration.
- ------ -------------------------------------------------
Item 3 of the Initial Statement is hereby amended and restated in its
entirety to read as follows:
Centre Re, ZRC, Empire, Universal, Universal Life, Fidelity and a
branch of Zurich authorized to conduct business in the United States through
the State of New York, its port of entry (collectively, the "Purchasers"),
purchased 4,523,812, 238,095, 126,984, 253,968, 63,492, 190,476 and 952,380
shares, respectively, at the closing under the Purchase Agreement described
in Item 4 below for $31.50 per share. The source of funds for the purchase of
such shares of Common Stock was working capital of the Purchasers. Zurich
was granted a proxy to vote the 3,174,603 Longfellow Shares (as defined
below) pursuant to the Longfellow Purchase Agreement described in Item 4
below. The voting arrangement set forth in the Longfellow Purchase
Agreement was required by the terms of the Relationship Agreement
described in Item 4 below as a condition to Zurich and its affiliates' ability
to transfer shares of Common Stock to Longfellow.
Item 4. Purpose of Transaction.
- ------ ----------------------
Item 4 of the Initial Statement is hereby amended by replacing the
final paragraph thereof with the following:
On November 27, 1996, Zurich and the other parties thereto agreed to
amend and restate each of the Purchase Agreement, the Relationship Agreement,
the Family Stockholder Agreement and the Registration Rights Agreement as of May
31, 1996. Conformed copies of such amended and restated agreements are attached
to this Statement as Exhibits 5, 6, 7 and 8, respectively (collectively, the
"Amended Agreements"). The descriptions of such agreements contained herein are
qualified in their entirety by reference to such Exhibits, which are
incorporated herein by reference thereto. Pursuant to the Amended Agreements the
parties agreed, among other things, to extend the date after which the Purchase
Agreement could be terminated by either party to May 28, 1997. All references in
this Statement to the Purchase Agreement, the Relationship Agreement, the Family
Stockholder Agreement and the Registration Rights Agreement shall be deemed
references to such agreements as amended by the Amended Agreements.
Under the Purchase Agreement, the Company agreed to issue and sell the
shares representing the Zurich Common Stock Investment to Zurich or such of its
affiliates as Zurich designated in a writing to the Company. Prior to the
closing under the Purchase Agreement, Zurich designated the Purchasers and
Centre Reinsurance Services (Bermuda) Limited ("Services") to purchase the
shares of Common Stock under the Purchase Agreement. On March 27, 1997 the
closing under the Purchase Agreement was consummated and the Purchasers and
Services acquired the shares of Common Stock comprising the Zurich Common
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<PAGE>
Stock Investment. In addition, in accordance with the terms of the Relationship
Agreement, Steven M. Gluckstern and William H. Bolinder, each executive officers
of Zurich, were appointed to the Board of Directors of the Company as Zurich's
designees under the Relationship Agreement.
Immediately following the closing under the Purchase Agreement,
Services, a Bermuda corporation and an indirect wholly owned subsidiary of
Zurich, entered into a Stock Purchase Agreement (the "Longfellow Purchase
Agreement") with Longfellow I, LLC ("Longfellow"), dated March 27, 1997,
pursuant to which Services agreed to sell to Longfellow 3,174,603 shares (the
"Longfellow Shares") of the Common Stock purchased under the Purchase Agreement.
The Longfellow Purchase Agreement is attached to this Statement as Exhibit 9,
and the description of the Longfellow Purchase Agreement contained herein is
qualified in its entirety by reference to such Exhibit, which is incorporated
herein by reference thereto. Under the Longfellow Purchase Agreement, Services
agreed to grant Longfellow certain of the registration rights awarded to Zurich
and its affiliates under the Registration Rights Agreement and Longfellow
granted Zurich a proxy to vote the Longfellow shares on all matters on which
stockholders of the Company are entitled to vote, subject to certain exceptions
and conditions. In addition, pursuant to the Longfellow Purchase Agreement,
Longfellow has agreed that, subject to certain exceptions and conditions, in the
event it desires to sell any Longfellow Shares, it shall first offer to Services
and its affiliates the opportunity to purchase such shares. The purchase and
sale under the Longfellow Purchase Agreement were consummated on March 27, 1997.
Except as set forth herein, none of the Reporting Persons, or to the
best of their knowledge, any person set forth in Schedule I hereto, has any
plans or proposals with respect to any material change in the business or
corporate structure of Provident or, generally, any other action referred to in
instructions (a) through (j) of Item 4 of Schedule 13D.
Each of the Reporting Persons may, at any time, review or reconsider
its position with respect to the Company and formulate plans or proposals with
respect to any such matters. In addition, depending on market conditions and
other matters, and subject to the terms of the agreements described above, the
Reporting Persons, directly or indirectly, may make further purchases and/or
sales of Common Stock from time to time.
Item 5. Interest in Securities of the Issuer.
- ------ ------------------------------------
Item 5 of the Initial Statement is hereby amended and restated in its
entirety to read as follows:
(a) (i) Zurich may be deemed the beneficial owner of 9,523,810 shares
of Common Stock representing 15.6% of the outstanding shares of Common Stock.
6,349,207 of such shares of Common Stock constitute the aggregate number of
shares of Common Stock held for the accounts of the Purchasers and the remaining
3,174,603 of such shares of Common Stock constitute the Longfellow Shares. In
accordance with Rule 13d-3 of the General Rules and Regulations of the
Securities Exchange Act of 1934, as amended, Zurich may be deemed to
beneficially own the Longfellow Shares because, as more fully described in Item
4, under the
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<PAGE>
Longfellow Purchase Agreement, Zurich was granted a proxy to vote such shares
under, and in accordance with, the terms of the Longfellow Purchase Agreement.
Zurich expressly disclaims beneficial ownership of the Longfellow Shares.
(ii) Centre Re may be deemed the beneficial owner of the 4,523,812
shares of Common Stock held for its account representing 7.4% of the outstanding
shares of Common Stock.
(iii) ZRC may be deemed the beneficial owner of the 238,095 shares of
Common Stock held for its account representing 0.4% of the outstanding shares of
Common Stock.
(iv) Empire may be deemed the beneficial owner of the 126,984 shares of
Common Stock held for its account representing 0.2% of the outstanding shares of
Common Stock.
(v) Universal may be deemed the beneficial owner of 317,460 shares of
Common Stock representing 0.5% of the outstanding shares of Common Stock and
consisting of the 253,968 shares of Common Stock held for its account and the
63,492 shares fo Common Stock held for the account of its wholly owned
subsidiary, Universal Life.
(vi) Universal Life may be deemed the beneficial owner of the
63,492 shares of Common Stock held for its account representing 0.1% of the
outstanding shares of Common Stock.
(vii) Fidelity may be deemed the beneficial owner of the 190,476
shares of Common Stock held for its account representing 0.3% of the outstanding
shares of Common Stock.
The percentages used herein are calculated based upon the sum of (x)
the 45,685,191 shares of Common Stock outstanding as reported in the Company's
Form 10-K for the year ended December 31, 1996, as filed with the Securities and
Exchange Commission on March 26, 1997, (y) the 9,523,810 shares of Common Stock
issued under the Purchase Agreement in connection with the Zurich Common Stock
Investment and (z) the 5,917,500 shares of Common Stock issued immediately upon
the consummation of the Merger, which occurred simultaneously with the closing
under the Purchase Agreement.
(b) (i) Zurich, as the person ultimately in control of each of the
Purchasers, may be deemed to have the sole power to vote or direct the vote and
the sole power to dispose or direct the disposition of the 6,349,207 shares of
Common Stock held for the accounts of the Purchasers. In addition by virtue of
the Longfellow Purchase Agreement, Zurich may be deemed to beneficially own the
Longfellow Shares with sole power to vote
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<PAGE>
and direct the vote of the 3,174,603 Longfellow Shares under, and in accordance
with, the terms of the Longfellow Purchase Agreement. Zurich does not have the
power to dispose or direct the disposition of any of the Longfellow Shares.
Zurich expressly disclaims beneficial ownership of the Longfellow Shares.
(ii) Centre Re may be deemed to have the sole power to vote or direct
the vote and the sole power to dispose or direct the disposition of the
4,523,812 shares of Common Stock held for its account.
(iii) ZRC may be deemed to have the sole power to vote or direct the
vote and the sole power to dispose or direct the disposition of the 238,095
shares of Common Stock held for its account.
(iv) Empire may be deemed to have the sole power to vote or direct the
vote and the sole power to dispose or direct the disposition of the 126,984
shares of Common Stock held for its account.
(v) Universal may be deemed to have the sole power to vote or
direct the vote and the sole power to dispose or direct the disposition of the
253,968 shares of Common Stock held for its account and the 63,492 shares held
for the account of its wholly owned subsidiary, Universal Life.
(vi) Universal Life may be deemed to have the sole power to vote or
direct the vote and the sole power to dispose or direct the disposition of the
63,492 shares of Common Stock held for its account.
(vii) Fidelity may be deemed to have the sole power to vote or direct
the vote and the sole power to dispose or direct the disposition of the 190,476
shares of Common Stock held for its account.
(c) The response to Item 4 is incorporated herein by reference. Except
as set forth in Item 4 or this Item 5, none of the Reporting Persons or, to the
knowledge of the Reporting Persons, any person set forth in Schedule I hereto,
beneficially owns any shares of Common Stock or has effected any transactions in
the Common Stock during the preceding 60 days.
(d) and (e) Not applicable.
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<PAGE>
Item 7. Material to be Filed as Exhibits.
- ------ --------------------------------
Item 7 of the Initial Statement is hereby amended and restated in its
entirety to read as follows.
Exhibit 1. Common Stock Purchase Agreement, dated as of May 31, 1996,
between Provident
Companies, Inc. and Zurich Insurance Company.
Exhibit 2. Relationship Agreement, dated as of May 31, 1996, between
Provident Companies, Inc. and Zurich Insurance Company.
Exhibit 3. Family Stockholder Agreement, dated as of May 31, 1996,
among Zurich Insurance Company, the Maclellan Foundation, Inc. and the
stockholders listed in Schedule A thereto.
Exhibit 4. Registration Rights Agreement, dated as of May 31, 1996,
between Zurich Insurance Company and Provident Companies, Inc.
Exhibit 5. Amended and Restated Common Stock Purchase Agreement, dated
as of May 31, 1996, between Provident Companies, Inc. and Zurich Insurance
Company.
Exhibit 6. Amended and Restated Relationship Agreement, dated as of May
31, 1996, between Provident Companies, Inc. and Zurich Insurance Company.
Exhibit 7. Amended and Restated Family Stockholder Agreement, dated as
of May 31, 1996, among Zurich Insurance Company, the Maclellan Foundation, Inc.
and the stockholders listed in Schedule A thereto.
Exhibit 8. Amended and Restated Registration Rights Agreement, dated as
of May 31, 1996, between Zurich Insurance Company and Provident Companies, Inc.
Exhibit 9. Stock Purchase Agreement, dated as of March 27, 1997,
between Centre Reinsurance Services (Bermuda) Limited and Longfellow I, LLC.
Exhibit 10. Joint Filing Agreement, dated April 7, 1997, among Zurich
Insurance Company; Centre Reinsurance Limited; Zurich Reinsurance Centre, Inc.;
Empire Fire and Marine Insurance Company; Universal Underwriters Insurance
Company; Universal Underwriters Life Insurance Company and Fidelity and Deposit
Company of Maryland.
Exhibit 11. Power of Attorney, dated April 7, 1997, granted by Zurich
Insurance Company in favor of Steven D. Germain.
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<PAGE>
Exhibit 12. Power of Attorney, dated April 7, 1997, granted by Centre
Reinsurance Limited in favor of Steven D. Germain.
Exhibit 13. Power of Attorney, dated April 7, 1997, granted by Zurich
Reinsurance Centre, Inc. in favor of Steven D. Germain.
Exhibit 14. Power of Attorney, dated April 7, 1997, granted by Empire
Fire and Marine Insurance Company in favor of David A. Bowers.
Exhibit 15. Power of Attorney, dated April 7, 1997, granted by
Universal Underwriters Insurance Company in favor of David A. Bowers.
Exhibit 16. Power of Attorney, dated April 7, 1997, granted by
Universal Underwriters Life Insurance Company in favor of David A. Bowers.
Exhibit 17. Power of Attorney, dated April 7, 1997, granted by Fidelity
and Deposit Company of Maryland in favor of David A. Bowers.
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<PAGE>
SIGNATURES
----------
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certify that the information set forth in this
statement is true, complete and correct.
Dated: April 7, 1997 ZURICH INSURANCE COMPANY
By: /s/ Kaspar Hotz
---------------------------
Name: Kaspar Hotz
Title: Corporate Secretary &
General Counsel
By: /s/Monica Machler
---------------------------
Name: Monica Machler
Title: Member of the Executive
Staff
Dated: April 7, 1997 CENTRE REINSURANCE LIMITED
By: /s/ Andrea Hodson
---------------------------
Name: Andrea Hodson
Title: Vice President
Dated: April 7, 1997 ZURICH REINSURANCE CENTRE, INC.
By: /s/Mark Sarlitto
---------------------------
Name: Mark Sarlitto
Title: Senior Vice President &
General Counsel
Dated: April 7, 1997 EMPIRE FIRE AND MARINE INSURANCE COMPANY
By: /s/ John McCartney
---------------------------
Name: John McCartney
Title: President & CEO
Dated: April 7, 1997 UNIVERSAL UNDERWRITERS INSURANCE
COMPANY
By: /s/ Ken Goldstein
---------------------------
Name: Ken Goldstein
Title: President & CEO
-18-
<PAGE>
Dated: April 7, 1997 UNIVERSAL UNDERWRITERS LIFE
INSURANCE COMPANY
By: /s/ Ken Goldstein
---------------------------
Name: Ken Goldstein
Title: President & CEO
Dated: April 7, 1997 FIDELITY AND DEPOSIT COMPANY OF
MARYLAND
By: /s/ Richard Williams
---------------------------
Name: Richard Williams
Title: President & CEO
-19-
<PAGE>
Schedule I
----------
Schedule I of the Initial Statement is hereby amended and restated in
its entirety to read as follows:
Set forth below are the name, position and citizenship of each of the
directors and executive officers of each Reporting Person. Except as otherwise
indicated, the principal occupation of each person listed below is his or her
executive position with Zurich, Centre Re, ZRC, Zurich U.S., Empire, Universal,
Universal Life or Fidelity, as the case may be. Unless otherwise indicated, the
principal business address of each person at (a) Zurich is 2 Mythenquai, CH-8002
Zurich, Switzerland; (b) Centre Re is One Victoria Street, P.O. Box HM 1788,
Hamilton, HM HX, Bermuda; (c) ZRC is One Chase Manhattan Plaza, 43rd Floor, New
York, NY 10005; (d) Empire is 1624 Douglas Street, Omaha, NE 68102; (e)
Universal and Universal Life is 6363 College Boulevard, Overland Park, KS 66211
and (f) Fidelity is 300 St. Paul Place, Baltimore, MD 21202.
Executive Officers of Zurich
----------------------------
Name Position Citizenship
- ---- -------- -----------
Rolf F. Huppi Chairman and Swiss
Chief Executive Officer
Rolf Hanggi Deputy Chief Executive Officer Swiss
William H. Bolinder Member of U.S.A.
Corporate Executive Board
Laurence W. Cheng Member of Canadian
Corporate Executive Board
Steven M. Gluckstern Member of U.S.A.
Corporate Executive Board
One Chase Manhattan Plaza,
New York, New York 10005
Peter Eckert Member of Swiss
Corporate Executive Board
Dr. Gunther Gose Member of German
Corporate Executive Board
Markus Rohrbasser Member of Swiss
Corporate Executive Board
Frank Schnewlin Member of Swiss
Corporate Executive Board
Detlef Steiner Member of German
Corporate Executive Board
Richard Johnson Member of Enlarged U.S.A.
Corporate Executive Board
-20-
<PAGE>
Name Position Citizenship
- ---- -------- -----------
Dr. Adriano Passardi Member of Enlarged Swiss
Corporate Executive Board
Dr. Daniel Villiger Member of Enlarged Swiss
Corporate Executive Board
Dr. Kaspar Hotz Corporate Secretary and Swiss
General Counsel
-21-
<PAGE>
Directors of Zurich
-------------------
Principal Occupation and
Business Address
(if other than indicated above)
Name Position Citizenship
- ---- -------- -----------
Henry C.M. Bodmer Chairman and Managing Director Swiss
Abegg Holding AG
Bahnhofstrasse 30
8001 Zurich, Switzerland
Peter Bockli Partner, Law Offices of Swiss
Bockli Thomann & Partners
P.O. Box 2348
4002 Basel, Switzerland
Kaspar V. Cassani Retired in 1989 from IBM Swiss
(1987-1989 Swiss Vice-Chairman
of IBM Corporation, Armonk, NY)
Haldenstrasse 53
8142 Uitikon, Switzerland
David de Pury Chairman of the Board and Swiss
Partner of de Pury Pictet
Turretini & Co. Ltd., Zurich and
Geneva, Switzerland
P.O. Box 8242
8050 Zurich, Switzerland
Rolf Hanggi Deputy Chief Executive Officer Swiss
Zurich Insurance Company
Mythenquai 2
Zurich, Switzerland
Rolf Huppi Chairman and Chief Executive Swiss
Officer, Zurich
Insurance Company, Mythenquai 2,
Zurich, Switzerland
Markus Kundig Owner, Kundig Druck AG Swiss
(Printing Company)
Sihlbruggstrasse 105A
6341 Baar, Switzerland
Yves Oltramare Retired, formerly partner of Swiss
Lombard, Odier & Cie, Bankers
"Monchoisy"
56 route de Meinier
1253 Vandoeuvres, Switzerland
Karl Otto Pohl Partner, Bank Sal. Oppenheim Jr, German
& Cie KGaA Bockenheimer
Landstrasse 20
60323 Frankfurt a/Main
Germany
-22-
<PAGE>
Name Position Citizenship
- ---- -------- -----------
Lodewijk van Wachem Chairman, Supervisory Board Dutch
Royal Dutch Petroleum Company
P.O. Box 162, 2501 Den
Haag, Netherlands
-23-
<PAGE>
Executive Officers of Centre Re
-------------------------------
Name Position Citizenship
- ---- -------- -----------
David A. Brown President British
Steven D. Germain Senior Vice President, U.S.A.
General Counsel & Secretary
Daniel Malloy Senior Vice President U.S.A.
Tara Leonard Senior Vice President Canadian
Christiane Allaire Senior Vice President Canadian
Judith King Senior Vice President British
Michael Dwyer Vice President U.S.A.
George Hutchings Vice President U.S.A./Bermudian
Robert Miller Vice President U.S.A.
Robin Hamill Vice President U.S.A./Bermudian
Michael Cash Vice President Bermudian
Gayle Gorman Vice President U.S.A.
Andrea Hodson Vice President and Assistant U.S.A/Bermudian
Secretary
-24-
<PAGE>
Directors of Centre Re
----------------------
Principal Occupation and
Business Address
(if other than indicated above)
Name Position Citizenship
- ---- -------- -----------
Steven M. Gluckstern Chairman U.S.A.
Zurich Centre Resource Ltd.
1 Chase Manhattan Plaza
New York, NY 10005 U.S.A.
Michael D. Palm Executive Vice President U.S.A.
Centre Reinsurance Holdings
Limited
1 Victoria Street
Hamilton, Bermuda
Steven D. Germain General Counsel/Managing Director U.S.A.
Zurich Centre Resource Ltd.
1 Chase Manhattan Plaza
New York, NY 10005 U.S.A.
David A. Brown President British
Centre Reinsurance Limited
1 Victoria Street
Hamilton, Bermuda
Daniel Malloy President U.S.A.
Centre Reinsurance (Bermuda)
Limited
1 Victoria Street
Hamilton, Bermuda
Andrea Hodson Officer U.S.A./Bermudian
Centre Reinsurance Holdings
Limited
1 Victoria Street
Hamilton, Bermuda
Tara Leonard Chief Accounting Officer Canadian
Centre Reinsurance Holdings
Limited
1 Victoria Street
Hamilton, Bermuda
-25-
<PAGE>
Executive Officers of ZRC
-------------------------
Name Position Citizenship
- ---- -------- -----------
Steven M. Gluckstern Chairman U.S.A.
Richard E. Smith President and Chief Executive U.S.A.
Officer
Peter R. Porrino Executive Vice President U.S.A.
Gerald S. King Senior Vice President, Chief U.S.A.
Facultative Underwriting Officer
Brian E. Kensil Senior Vice President, Chief U.S.A.
Administrative Officer
Isaac Mashitz Senior Vice President, Chief U.S.A.
Actuarial Officer
Adrienne W. Reid Senior Vice President, Chief U.S.A.
Treaty Underwriting Officer
Karen O'Connor Rubsam Senior Vice President, Chief U.S.A.
Financial Officer and Treasurer
Mark R. Sarlitto Senior Vice President, General U.S.A.
Counsel and Secretary
-26-
<PAGE>
Directors of ZRC
----------------
Principal Occupation and
Business Address
(if other than indicated above)
Name Position Citizenship
- ---- -------- -----------
Steven M. Gluckstern Chairman of Zurich Centre U.S.A.
Resource Ltd.
Richard E. Smith President and Chief Executive U.S.A.
Officer of ZRC
Peter R. Porrino Executive Vice President of ZRC U.S.A.
Gerald S. King Senior Vice President, Chief U.S.A.
Facultative Underwriting Officer
of ZRC
Isaac Mashitz Senior Vice President, U.S.A.
Chief Actuarial Officer of ZRC
Adrienne W. Reid Senior Vice President, U.S.A.
Chief Treaty Underwriting Officer
of ZRC
Mark R. Sarlitto Senior Vice President, U.S.A.
General Counsel and Secretary
of ZRC
Detlef Steiner Member of Corporate Executive German
Board of Zurich
-27-
<PAGE>
Executive Officers of Empire
----------------------------
Name Position Citizenship
- ---- -------- -----------
John Joseph McCartney President U.S.A.
Amy Sue Bones Secretary U.S.A.
Kevin H. Purcell Treasurer U.S.A.
-30-
<PAGE>
Directors of Empire
-------------------
Principal Occupation and
Business Address
(if other than indicated above)
Name Position Citizenship
- ---- -------- -----------
William H. Bolinder Chairman U.S.A.
Zurich american Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
John W. Paulsen Senior Vice President U.S.A.
Empire Fire and Marine Insurance
Company
1624 Douglas Street
Omaha, Nebraska 68102-1449
Loren J. Alter Executive Vice President U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
John J. McCartney President & Chief Executive Officer U.S.A.
Empire Fire and Marine Insurance
Company
1624 Douglas Street
Omaha, Nebraska 68102-1449
Kevin H. Purcell Vice President and Treasurer U.S.A.
Empire Fire and Marine Insurance
Company
1624 Douglas Street
Omaha, Nebraska 68102-1449
David A. Bowers Executive Vice President & General Counsel U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
Stuart L. Olin Executive Vice President U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
Charles B. Ralph Executive Vice President U.S.A.
Empire Fire and Marine Insurance
Company
1624 Douglas Street
Omaha, Nebraska 68102-1449
-31-
<PAGE>
Executive Officers of Universal
-------------------------------
Name Position Citizenship
- ---- -------- -----------
Kenneth F. Goldstein President and Chief Executive U.S.A.
Officer
Curtis R. Starnes Vice President and Secretary U.S.A.
Carolyn J. Gross Chief Financial Officer U.S.A.
-32-
<PAGE>
Directors of Universal
----------------------
Principal Occupation and
Business Address
(if other than indicated above)
Name Position Citizenship
- ---- -------- -----------
Loren J. Alter Executive Vice President U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
David P. Bresnahan Retired U.S.A.
12604 Ensley Lane
Leawood, Kansas 66209
Larry D. Jeffries Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Michael W. McHugh Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Curtis R. Starnes Vice President, General Counsel
& Corporate Secretary U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
William H. Bolinder Chairman U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
Kenneth F. Goldstein President & Chief Executive Officer U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Randolph T. Kirk Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Stuart L. Olin Executive Vice President U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
David A. Bowers Executive Vice President &
General Counsel U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
-33-
<PAGE>
Name Position Citizenship
- ---- -------- -----------
Carolyn J. Gross Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Jerome P. McAndrews Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Michael J. Ryan Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
-34-
<PAGE>
Executive Officers of Universal Life
------------------------------------
Name Position Citizenship
- ---- -------- -----------
Kenneth F. Goldstein President and Chief Executive U.S.A.
Officer
Curtis R. Starnes Vice President and Secretary U.S.A.
Carolyn J. Gross Treasurer and Chief Financial U.S.A.
Officer
-35-
<PAGE>
Directors of Universal Life
---------------------------
Principal Occupation and
Business Address
(if other than indicated above)
Name Position Citizenship
- ---- -------- -----------
Loren J. Alter Executive Vice President U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
David P. Bresnahan Retired U.S.A.
12604 Ensley Lane
Leawood, Kansas 66209
Larry D. Jeffries Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Michael W. McHugh Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Curtis R. Starnes Vice President, General Counsel U.S.A.
& Corporate Secretary
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
William H. Bolinder U.S.A.
Chairman
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
Kenneth F. Goldstein U.S.A.
President & Chief Executive Officer
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Randolph T. Kirk U.S.A.
Senior Vice President
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Stuart L. Olin U.S.A.
Executive Vice President
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
David A. Bowers U.S.A.
Executive Vice President &
General Counsel
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
-36-
<PAGE>
Name Position Citizenship
- ---- -------- -----------
Carolyn J. Gross Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Jerome P. McAndrews Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
Michael J. Ryan Senior Vice President U.S.A.
Universal Underwriters Insurance
Company
6363 College Boulevard
Overland Park, Kansas 66211
-37-
<PAGE>
Executive Officers of Fidelity
------------------------------
Name Position Citizenship
- ---- -------- -----------
Richard F. Williams President and Chief Executive U.S.A.
Officer
Thomas B. Bosley Executive Vice President U.S.A.
Joseph J. Gallagher Senior Vice President and U.S.A.
Treasurer
Robert L. Lawrence Senior Vice President U.S.A.
Richard F. Yeazel Executive Vice President U.S.A.
James I. Keenan, Jr. Vice President, Secretary and U.S.A.
General Counsel
Wayne A. Stollenmaier Comptroller U.S.A.
Fred L. Borleis, Jr. Senior Vice President U.S.A.
Annette Merz Senior Vice President Germany
-38-
<PAGE>
Directors of Fidelity
---------------------
Principal Occupation and
Business Address
(if other than indicated above)
Name Position Citizenship
- ---- -------- -----------
William H. Bolinder Chairman U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
Andre W. Brewster Emeritus Partner U.S.A.
Piper & Marbury
1100 Charles Center South
36 S. Charles Street
Baltimore, Maryland 21201
Alan P. Hoblitzell, Jr. Retired CFO U.S.A.
The Ryland Group, Inc.
Post Office Box 1131
Brooklandville, Maryland 21022
Judith R. Hope Partner U.S.A.
Paul, Hastings, Janofsky & Walker
1299 Pennsylvania Ave., N.W.,
10th Floor
Washington, D.C. 20004
Marc E. Leland President U.S.A.
Marc E. Leland & Associates
Potomac Tower, Suite 1700
1001 19th Street North
Arlington, Virginia 22209
Raymond A. Mason Chairman U.S.A.
Legg Mason, Inc.
111 S. Cavert Street
Baltimore, Maryland 21202
Stuart L. Olin Executive Vice President U.S.A.
Zurich American Insurance Group
1400 American Lane
Schaumburg, Illinois 60196
Brian B. Topping Vice Chairman of the Board U.S.A.
Mercantile Safe Deposit & Trust
Two Hopkins Plaza
Post Office Box 2257
Baltimore, Maryland 21203
Richard F. Williams President & CEO U.S.A.
Fidelity and Deposit Company of
Maryland
Post Office 1227
Baltimore, Maryland 21203
-39-
<PAGE>
EXHIBIT INDEX
-------------
Sequential
Page Number
-----------
Exhibit 1. Common Stock Purchase Agreement, dated as of
May 31, 1996, between Provident Companies, Inc. and Zurich
Insurance Company. *
Exhibit 2. Relationship Agreement, dated as of May 31,
1996, between Provident Companies, Inc. and Zurich Insurance
Company. *
Exhibit 3. Family Stockholder Agreement, dated as of
May 31, 1996, among Zurich Insurance Company, the Maclellan
Foundation, Inc. and the stockholders listed in Schedule A
thereto. Exhibit 4. Registration Rights Agreement, dated as
of May 31, 1996, between Zurich Insurance Company and
Provident Companies, Inc. *
Exhibit 4. Registration Rights Agreement, dated as of
May 31, 1996, between Zurick Insurance Company and Provident
Companies, Inc. *
Exhibit 5. Amended and Restated Common Stock Purchase
Agreement, dated as of May 31, 1996, between Provident
Companies, Inc. and Zurich Insurance Company.
Exhibit 6. Amended and Restated Relationship Agreement,
dated as of May 31, 1996, between Provident Companies, Inc.
and Zurich Insurance Company.
Exhibit 7. Amended and Restated Family Stockholder
Agreement, dated as of May 31, 1996, among Zurich Insurance
Company, the Maclellan Foundation, Inc. and the stockholders
listed in Schedule A thereto.
Exhibit 8. Amended and Restated Registration Rights
Agreement, dated as of May 31, 1996, between Zurich
Insurance Company and Provident Companies, Inc.
Exhibit 9. Stock Purchase Agreement, dated as of March
27, 1997, between Centre Reinsurance Services (Bermuda)
Limited and Longfellow I, LLC.
Exhibit 10. Joint Filing Agreement, dated April 7,
1997, among Zurich Insurance Company; Centre Reinsurance
Limited; Zurich Reinsurance Centre, Inc.;
Empire Fire and Marine Insurance Company; Universal Underwriters
Insurance Company; Universal Underwriters Life Insurance
Company and Fidelity and Deposit Company of Maryland.
Exhibit 11. Power of Attorney, dated April 7, 1997,
granted by Zurich Insurance Company in favor of Steven D.
Germain.
Exhibit 12. Power of Attorney, dated April 7, 1997,
granted by Centre Reinsurance Limited in favor of Steven D.
Germain.
Exhibit 13. Power of Attorney, dated April 7, 1997,
granted by Zurich Reinsurance Centre, Inc. in favor of
Steven D. Germain.
-40-
<PAGE>
Exhibit 14. Power of Attorney, dated April 7, 1997,
granted by Empire Fire and Marine Insurance Company in favor
of David A. Bowers.
Exhibit 15. Power of Attorney, dated April 7, 1997,
granted by Universal Underwriters Insurance Company in favor
of David A. Bowers.
Exhibit 16. Power of Attorney, dated April 7, 1997,
granted by Universal Underwriters Life Insurance Company in
favor of David A. Bowers.
Exhibit 17. Power of Attorney, dated April 7, 1997,
granted by Fidelity
and Deposit Company of Maryland in favor of David A. Bowers.
- ----------------------------
* Previously filed with the
Initial Statement
-41-
<PAGE>
EXHIBIT 5
________________________________________________________________________________
AMENDED AND RESTATED
COMMON STOCK
PURCHASE AGREEMENT
between
PROVIDENT COMPANIES, INC.
and
ZURICH INSURANCE COMPANY
Dated as of May 31, 1996
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. THE SHARES........................................................2
Section 1.1. Issuance, Sale and Purchase of the Shares............2
Section 1.2. Closing..............................................2
Section 1.3. Further Action.......................................2
Section 1.4. Anti-Dilution Provisions.............................3
SECTION 2. REPRESENTATIONS AND WARRANTIES....................................3
Section 2.1. Representations and Warranties of the Company........3
Section 2.1.1. Organization, Good Standing and Qualification........3
Section 2.1.2. Authorization, Enforceability........................4
Section 2.1.3. No Conflict..........................................4
Section 2.1.4. Capitalization.......................................5
Section 2.1.5. Valid Issuance of Securities.........................6
Section 2.1.6. Litigation...........................................6
Section 2.1.7. Consents.............................................6
Section 2.1.8. Compliance with Law and Other Instruments............7
Section 2.1.9. SEC Documents; Financial Statements..................7
Section 2.1.10. Absence of Certain Changes or Events.................9
Section 2.1.11. No Regulatory Disqualifications......................9
Section 2.1.12. Registration Rights..................................9
Section 2.1.13. Acquisition Agreements...............................9
Section 2.1.14. Rating Agency.......................................10
Section 2.1.15. Brokers.............................................10
Section 2.1.16. Environmental Protection............................10
Section 2.1.17. Delaware Law........................................11
Section 2.1.18. Incorporation of Representations and Warranties
from the Merger Agreement.........................11
Section 2.2. Representations, Warranties and Covenants of the
Purchaser.........................................12
Section 2.2.1. Organization........................................12
Section 2.2.2. Authorization.......................................12
Section 2.2.3. Purchase for Investment.............................12
Section 2.2.4. Restricted Securities...............................12
Section 2.2.5. No Regulatory Disqualifications.....................13
Section 2.2.6. Purchaser Information...............................13
Section 2.2.7. Consents............................................13
Section 2.2.8. Brokers.............................................14
SECTION 3. CERTAIN AGREEMENTS OF THE PARTIES................................14
Section 3.1. Conduct of Business of the Company..................14
Section 3.2. Covenants of the Purchaser..........................16
(i)
<PAGE>
Section 3.3. Proxy Statement; Stockholder Approval...............17
Section 3.4. Approvals, Etc......................................17
Section 3.5. Exclusivity.........................................17
Section 3.6. Publicity...........................................17
Section 3.7. Modification of Other Agreements....................17
Section 3.8. Exchange Listing....................................18
Section 3.9. Investigation and Confidentiality...................18
Section 3.10. State Takeover Laws; Charter Provisions.............18
Section 3.11. Use of Proceeds.....................................19
Section 3.12. Marketing Agreement.................................19
Section 3.13. Restrictive Agreements Prohibited...................19
SECTION 4. CLOSING CONDITIONS...............................................19
Section 4.1. Conditions to Obligation of Purchaser...............19
Section 4.1.1. Representations and Warranties Complete
and Correct.......................................19
Section 4.1.2. Compliance with this Agreement......................19
Section 4.1.3. Officers' Certificate...............................19
Section 4.1.4. Consents; Etc.......................................20
Section 4.1.5. Supporting Documents................................20
Section 4.1.6. HSR Act.............................................20
Section 4.1.7. Merger Closing......................................20
Section 4.1.8. Other Agreements....................................20
Section 4.1.9. Material Adverse Change.............................21
Section 4.1.10. Illegality, Etc.....................................21
Section 4.1.11. Stockholder Approval................................21
Section 4.1.12. Exchange Listing....................................21
Section 4.1.13. Financing of Cash Payments in Merger................21
Section 4.1.14. Maclellan Family Agreement..........................21
Section 4.1.15. Legal Opinions......................................21
Section 4.2. Conditions to the Obligations of the Company........21
Section 4.2.1. Compliance with the Agreement.......................22
Section 4.2.2. Purchaser's Representations and Warranties
Complete and Correct..............................22
Section 4.2.3. Officer's Certificate...............................22
Section 4.2.4. Consents; Etc.......................................22
Section 4.2.5. HSR Act.............................................22
Section 4.2.6. Merger Closing......................................22
Section 4.2.7. Illegality, Etc.....................................22
Section 4.2.8. Stockholder Approval................................22
Section 4.2.9. Exchange Listing....................................23
Section 4.2.10. Financing of Cash Payments in Merger................23
Section 4.2.11. Legal Opinions......................................23
SECTION 5. TERMINATION......................................................23
Section 5.1. Termination.........................................23
Section 5.2. Effect of Termination...............................24
(ii)
<PAGE>
Section 5.3. Termination Fee.....................................24
SECTION 6. MISCELLANEOUS....................................................24
Section 6.1. Expenses and Indemnification........................24
Section 6.2. Survival of Agreements..............................26
Section 6.3. Parties in Interest.................................26
Section 6.4. Notices.............................................26
Section 6.5. Governing Law.......................................27
Section 6.6. Entire Agreement....................................27
Section 6.7. Counterparts........................................27
Section 6.8. Amendments..........................................27
Section 6.9. Severability........................................28
Section 6.10. Titles and Subtitles................................28
Section 6.11. Further Assurances..................................28
Exhibit 1 Terms for Marketing Agreement
Exhibit 2 Certificate of Incorporation
Exhibit 3 By-laws
Exhibit 4 Amended and Restated Family Stockholders Agreement
Exhibit 5 Form of Opinion of Company Counsel
Exhibit 6 Form of Opinion of Purchaser's Counsel
(iii)
<PAGE>
AMENDED AND RESTATED COMMON STOCK PURCHASE AGREEMENT dated as of May
31, 1996 between Provident Companies, Inc., a Delaware corporation (the
"Company"), and Zurich Insurance Company, a Swiss corporation ("Zurich" and,
solely for purposes of the provisions of this Agreement relating to the rights
of the Purchaser hereunder, together with such affiliates of Zurich as Zurich
may designate in accordance with Section 1.1 hereof, collectively the
"Purchaser").
RECITALS:
WHEREAS, on May 31, 1996 the parties hereto signed the original Common
Stock Purchase Agreement and such parties desire to amend and restate such
Agreement as of such date; and
WHEREAS, this Amended and Restated Common Stock Purchase Agreement is
being executed on November 27, 1996 as of May 31, 1996; and
WHEREAS, the Company wishes to issue and sell to the Purchaser an
aggregate of 9,523,810 shares (the "Shares") of the authorized but unissued
common stock, par value $1.00 per share (the "Common Stock"), of the Company;
and
WHEREAS, the Purchaser wishes to purchase the Shares on the terms and
subject to the conditions set forth in this Agreement; and
WHEREAS, the purchase and sale of the Shares is intended to be
consummated in connection with, and contingent upon, the acquisition by the
Company of all the outstanding common stock of The Paul Revere Corporation
("Revere") through a merger transaction (the "Merger"), all pursuant to an
Amended and Restated Agreement and Plan of Merger, entered into as of November
5, 1996 and dated as of April 29, 1996, between the Company, Patriot Acquisition
Corporation and Revere (as the same may be amended or supplemented in accordance
with the terms of this Agreement, the "Merger Agreement"); and
WHEREAS, in connection with the execution and delivery of this
Agreement, the Company and the Purchaser are entering into (i) an Amended and
Restated Registration Rights Agreement dated as of May 31, 1996 (as the same may
be amended or supplemented from time to time, the "Registration Agreement")
providing for certain rights in favor of the Purchaser with respect to the
registration of the Shares under the federal securities laws and (ii) an Amended
and Restated Relationship Agreement dated as of May 31, 1996 (as the same may be
amended or supplemented from time to time, the "Relationship Agreement")
providing for certain agreements with respect to Shares acquired hereunder; and
WHEREAS, on or prior to the Closing Date (as defined in Section 1.2)
the Company and the Purchaser will enter into a
-1-
<PAGE>
Marketing Agreement (as the same may be amended or supplemented from time to
time, the "Marketing Agreement") relating to a proposed strategic relationship
between the Purchaser and its affiliates and the Company, which agreement shall
include the terms set forth on Exhibit 1 (the Marketing Agreement, the
Registration Agreement and the Relationship Agreement are referred to herein
collectively as the "Ancillary Agreements").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
SECTION 1. THE SHARES
Section 1.1. Issuance, Sale and Purchase of the Shares. In reliance
upon the representations and warranties made herein and subject to the
satisfaction or waiver of the conditions set forth herein, the Company agrees to
issue and sell to the Purchaser (and/or such affiliates (as defined in the
Relationship Agreement) of the Purchaser as it may designate in writing to the
Company prior to the Closing (as defined below)), and the Purchaser agrees to
purchase (or to cause such affiliates to purchase) from the Company 9,523,810
Shares, for a purchase price of $31.50 per Share, or an aggregate purchase price
equal to $300,000,000.
Section 1.2. Closing. The closing shall take place at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, One Beacon Street, Boston,
Massachusetts, on the date the Merger becomes effective in accordance with the
terms and conditions of the Merger Agreement, or at such other location, date
and time as may be agreed upon between the Purchaser and the Company (such
closing being called the "Closing" and such date and time being called the
"Closing Date"). At the Closing, the Company shall issue and deliver to the
Purchaser (or its affiliates), a stock certificate or certificates in definitive
form, registered in the name of the Purchaser (or such affiliates), representing
the Shares being purchased at the Closing. As payment in full for the Shares
being purchased under this Agreement, and against delivery of the stock
certificate or certificates therefor on the Closing Date, the Purchaser shall
(or shall cause its affiliates to) wire transfer in accordance with the
Company's instructions funds in the amount of $300,000,000.
Section 1.3. Further Action. During the period from the date hereof to
the Closing Date, each of the Company and the Purchaser shall use all reasonable
efforts to take all action necessary or appropriate to satisfy the closing
conditions contained in Section 4 hereof and to cause its respective
representations and warranties contained in Section 2 to be complete and correct
in all material respects as of the Closing Date, after giving effect to the
transactions contemplated by this Agreement, as if made on and as of such date.
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Section 1.4. Anti-Dilution Provisions. In the event the Company changes
the number of shares of Common Stock issued and outstanding prior to the Closing
as a result of a stock split, stock dividend, or similar recapitalization with
respect to such stock and the record date therefor (in the case of a stock
dividend) or the effective date thereof (in the case of a stock split or similar
recapitalization for which a record date is not established) shall be prior to
the Closing, the number of Shares to be purchased and the purchase price per
Share shall be proportionately adjusted, without any corresponding adjustment to
the aggregate purchase price for the Shares.
SECTION 2. REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser as follows:
Section 2.1.1. Organization, Good Standing and Qualification. (a) Each
of the Company and each of its subsidiaries (the "Company Subsidiaries") is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and has all requisite power and authority
under such laws to own or lease and operate its properties and to carry on its
business as now conducted. Each of the Company and each of the Company
Subsidiaries is duly qualified or licensed to do business as a foreign
corporation in good standing in each jurisdiction in which the nature of the
business transacted by it or the character of the properties owned or leased by
it requires it to so qualify or be licensed, except where the failure to so
qualify or be licensed or be in good standing would not (i) have a material
adverse effect on the results of operations, assets, liabilities or financial
condition of the Company and the Subsidiaries considered as a single enterprise
or (ii) impair in any material respect the ability of the Company to perform any
of its obligations or agreements hereunder or under the Ancillary Agreements or
consummate the transactions contemplated hereby or thereby (collectively, a
"Material Adverse Effect"). Subject to the requisite approvals of the Company's
stockholders as described in Section 2.1.2, the Company has the corporate power
and authority to execute, deliver and perform this Agreement and the Ancillary
Agreements, and to issue, sell and deliver the Shares.
(b) The Company conducts its insurance operations through Provident
Life and Accident Insurance Company, Provident National Assurance Company and
Provident Life and Casualty Insurance Company (collectively, the "Company
Insurance Subsidiaries"). Except as disclosed in Schedule 2.1.1, each of the
Company Insurance Subsidiaries is (i) duly licensed or authorized as an
insurance company in its jurisdiction of incorporation, (ii) duly licensed or
authorized as an insurance company in each other jurisdiction where it is
required to be so licensed or authorized, and (iii) duly authorized in its
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jurisdiction of incorporation and each other applicable jurisdiction to write
each line of business reported as being written in the Company SAP Statements
(as hereinafter defined), except, in any such case, where the failure to be so
licensed or authorized is not reasonably likely to result in a Material Adverse
Effect.
(c) Except for the Company Subsidiaries (including Revere after
consummation of the Merger) and as set forth in the 1995 SAP Statements or in
Schedule 2.1.1, the Company does not directly or indirectly own any equity or
similar interest in, or any interest convertible into or exchangeable or
exercisable for any equity or similar interest in, any corporation, partnership,
joint venture or other business association or entity that directly or
indirectly conducts any activity which is material to the Company.
Section 2.1.2. Authorization, Enforceability. Except for the
affirmative vote of a majority of the votes cast by holders of shares of Common
Stock present in person or represented by proxy at the Stockholders' Meeting (as
defined in Section 3.3) (provided that the votes cast by such holders constitute
a majority of the votes entitled to be cast by holders of the outstanding shares
of Common Stock) to authorize the issuance of the Shares hereunder and the
shares of Common Stock to be issued under the Merger Agreement and except for
the affirmative vote of the holders of sixty-six and two thirds percent of the
shares of Common Stock outstanding with respect to the Charter Amendment (as
defined in Section 5.3 of the Merger Agreement), all corporate action on the
part of the Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the Ancillary
Agreements, the performance of all obligations of the Company hereunder and
thereunder and the authorization, issuance, sale and delivery of the Shares has
been taken. This Agreement, the Registration Agreement and the Relationship
Agreement have been (and the Marketing Agreement, when executed and delivered,
will be) duly authorized, executed and delivered by the Company and constitute
(and, in the case of the Marketing Agreement, when executed and delivered, will
constitute) the valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether enforcement is sought by proceedings in
equity or at law).
Section 2.1.3. No Conflict. The execution and delivery by the Company
of this Agreement and the Ancillary Agreements, the performance by the Company
of its obligations hereunder and thereunder, the issuance, sale and delivery of
the Shares, will not violate any provision of (i) the Amended and Restated
Certificate of Incorporation, as amended or supplemented
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(the "Certificate of Incorporation"), or By-laws, as amended (the "By-laws"), of
the Company, or (ii) any law or any order of any court or other agency of
government, or conflict with, result in a breach of or constitute (with notice
or lapse of time or both) a default under any indenture, agreement or other
instrument by which the Company or any of its properties or assets is bound, or
result in the creation or imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever known to the Company upon any of the
properties or assets of the Company, except for violations, conflicts, breaches
or defaults which are not reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect. True and correct copies of the Certificate
of Incorporation and By-laws, as in effect on the date hereof, are attached
hereto as Exhibits 2 and 3, respectively.
Section 2.1.4. Capitalization. (a) The authorized capital stock of the
Company consists of (i) 25,000,000 shares of Preferred Stock, par value $1.00
per share (the "Preferred Stock"), which may be issued in series; and (ii)
65,000,000 shares of Common Stock. As of the Closing Date, assuming the Charter
Amendment is approved by the Company's stockholders, the authorized number of
shares of Common Stock will be increased to at least 75,000,000 shares.
(b) As of April 29, 1996, there were issued and outstanding (i)
45,465,135 shares of Common Stock, (ii) 1,041,667 shares of 8.10% Cumulative
Preferred Stock, evidenced by depositary receipts for 6,250,002 depositary
shares each representing a one-sixth interest in one share of the 8.10%
Cumulative Preferred Stock, and (iii) options to purchase 1,837,145 shares of
Common Stock under the Company's Stock Option Plan of 1994, as amended (the
"1994 Plan") out of a total of 3,500,000 options authorized to be issued under
the 1994 Plan. As of the Closing Date (and after giving effect to the Merger and
the transactions contemplated by this Agreement), there will be outstanding
67,540,281 shares of Common Stock (not including shares of Common Stock issued
pursuant to the exercise of options granted under the 1994 Plan and assuming
12,492,617 shares of Common Stock are issued to stockholders of Revere by virtue
of the Merger).
(c) Except as set forth in Schedule 2.1.4 or as provided in this
Agreement and the Merger Agreement, there are not outstanding any options,
warrants, rights (including conversion, exchange or preemptive rights) or
agreements or commitments, orally or in writing, for the purchase or acquisition
from the Company of any shares of its capital stock.
(d) Except as set forth in Schedule 2.1.4, the Company has no
obligation (contingent or other) to purchase, redeem or otherwise acquire any of
its equity securities or any interest therein or to pay any dividend (other than
cumulative dividends
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on the 8.10% Cumulative Preferred Stock in accordance with the terms thereof) or
make any other distribution in respect thereof.
Section 2.1.5. Valid Issuance of Securities. (a) The Shares, when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly authorized, validly issued, fully
paid and nonassessable.
(b) The outstanding shares of Common Stock and 8.10% Cumulative
Preferred Stock are, and the shares of Common Stock issuable pursuant to the
Merger Agreement will be when issued, duly authorized, validly issued, fully
paid and nonassessable.
(c) The issuance, sale and delivery of the Shares is not subject to any
preemptive right of stockholders of the Company arising under law or the
Certificate of Incorporation or By-laws or to any contractual right of first
refusal or other right in favor of any person.
Section 2.1.6. Litigation. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Company, currently threatened
against the Company or any of the Company Subsidiaries that questions the
validity of this Agreement or any of the Ancillary Agreements or the right of
the Company to enter into, or to consummate, the transactions contemplated
hereby or thereby, or that is reasonably likely, either individually or in the
aggregate, to have a Material Adverse Effect, nor does the Company have
knowledge that there is any basis for any of the foregoing. The Company is not a
party or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality that specifically
names the Company, any of the Company Subsidiaries and as to which either
compliance or noncompliance is reasonably likely to have a Material Adverse
Effect. Except as set forth on Schedule 2.1.6, there is no action, suit,
proceeding or investigation by the Company or any of the Company Subsidiaries
currently pending or which the Company or any Company Subsidiary intends to
initiate that is material to the operations of the Company and the Company
Subsidiaries considered as a whole.
Section 2.1.7. Consents. Assuming the accuracy of the representations
and warranties of the Purchaser set forth in this Agreement, except as set forth
on Schedule 2.1.7, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
governmental authority, agency or body or any other person on the part of the
Company is required in connection with the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements, except for (i)
required blue sky filings, if any, which will be effected in accordance with
such laws, (ii) filings required under the Securities Act of 1933 (the
"Securities Act") in connection with the Registration Agreement, (iii) the
filing of a Pre-Merger Notification Form and related
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documents under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
(the "HSR Act"), (iv) the filing of appropriate documents with, and the
approval of, the Superintendent of Insurance of the State of New York and the
Commissioners of Insurance of the Commonwealth of Massachusetts, the States of
Delaware and Tennessee and any other state or jurisdiction in which the Company
or any of the Company Insurance Subsidiaries is domiciled or does business (the
"Insurance Regulators") for the issuance of the Shares to the Purchaser, (v)
such consents, approvals, notices or waivers as may be required under the law of
Canada or any of the provinces thereof; (vi) the approval of the NYSE (as
defined in Section 3.8) for the listing of the Shares on the NYSE, subject to
official notice of issuance; and (vii) such consents, approvals, orders,
authorizations, registrations, qualifications, designations, declarations or
filings which if not obtained or made, as the case may be, are not reasonably
likely to have a Material Adverse Effect.
Section 2.1.8. Compliance with Law and Other Instruments. The Company
and the Company Subsidiaries are not in conflict with, or in default or
violation of, (i) any law, rule, regulation, order, judgment or decree
applicable to any of them or by which any of their property or assets is bound
or affected, or (ii) any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which any
of them is a party or by which the Company or any of the Company Subsidiaries or
any of their property or assets is bound or affected, except for any such
conflicts, defaults or violations that are not reasonably likely, individually
or in the aggregate, to have a Material Adverse Effect.
Section 2.1.9. SEC Documents; Financial Statements. Except as set forth
in Schedule 2.1.9:
(a) There are no agreements, understandings or proposed transactions
between the Company or any of the Subsidiaries and any of their respective
officers, directors or affiliates, or any affiliate thereof, of a type that
would be required to be disclosed on Form 10-K for the year ending on December
31, 1995 other than the agreements, understandings or proposed transactions
disclosed in the SEC Documents (as hereinafter defined).
(b) The Company has timely filed all reports required to be filed by it
with the SEC since January 1, 1994 pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations thereunder.
The Company has provided the Purchaser with copies of (i) the Company's annual
reports on Form 10-K for the years ended December 31, 1994 and 1995, (ii) the
Proxy Statement filed by the Company with the SEC on April 1, 1996 with respect
to the Annual Meeting of Stockholders of the Company held on May 1, 1996 and
(iii) the Company's quarterly report on Form 10-Q for the quarter ended
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March 31, 1996 (collectively, together with any other reports or filings made by
the Company since January 1, 1994 or which are made after the date hereof and on
or prior to the Closing Date with the SEC pursuant to the requirements of the
Securities Act or the Exchange Act or the rules and regulations thereunder,
including, without limitation, the Registration Statement and the Proxy
Statement (as those terms are defined in Section 2.2.6), the "SEC Documents").
As of their respective dates, the SEC Documents complied (or, as to SEC
Documents filed after the date hereof, will comply) in all material respects
with the requirements of the Exchange Act, the Securities Act and the rules and
regulations of the SEC promulgated thereunder. Except to the extent that
information contained in any SEC Document has been revised or superseded by a
later filed SEC Document (which was filed prior to the date of this Agreement),
none of the SEC Documents contains (or, as to SEC Documents filed after the date
hereof, will contain) any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The Registration Statement will not, at the time it
becomes effective, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading. The Proxy Statement will not, at the
time of the mailing of the Proxy Statement to the Company's stockholders (or, in
the case of any amendment or supplement thereto, at the time of mailing of
such amendment or supplement, as the case may be) and at the time of the
Stockholders' Meeting and at the Effective Time (as defined in the Merger
Agreement) contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(c) The financial statements of the Company included in the SEC
Documents comply (or, as to SEC Documents filed after the date hereof, will
comply) as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with generally accepted accounting
principles, except, in the case of unaudited statements as permitted by Form
10-Q, applied on a consistent basis during the periods involved and fairly
present the consolidated financial position of the Company and its subsidiaries
as of the date thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). Except as set forth in the SEC Documents,
neither the Company nor any of the Company Subsidiaries has any material
liabilities or obligations which, individually or in the aggregate, are
reasonably likely to have a Material Adverse Effect.
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(d) Each Company Insurance Subsidiary has filed all annual or quarterly
statements, together with all exhibits and schedules thereto, required to be
filed or submitted to the appropriate regulatory authorities of the jurisdiction
in which it is domiciled on forms prescribed or permitted by such authority (the
"SAP Statements"). The financial statements included in the SAP Statements,
including the notes thereto, have been prepared in all material respects in
accordance with accounting practices prescribed or permitted by applicable state
regulatory authorities in effect as of the date of the respective statements
(and such accounting practices have been applied on a consistent basis
throughout the periods involved, except as expressly set forth in the notes or
schedules thereto), and present fairly the respective statutory financial
position and results of operation of each of the Company Insurance Subsidiaries
as of their respective dates and for the respective periods prescribed therein.
Section 2.1.10. Absence of Certain Changes or Events. Except as
disclosed in the SEC Documents, or as set forth in Schedule 2.1.10 or as a
consequence of, or as contemplated by, this Agreement or the Merger Agreement,
since March 31, 1996, (i) the business of the Company has been carried on only
in the ordinary and usual course, (ii) there has not occurred any change which
has resulted or is reasonably likely to result in a Material Adverse Effect and
(iii) neither the Company nor any Company Subsidiary has taken any action of the
type described in clauses (g), (h), (i) or (j) of Section 3.1.
Section 2.1.11. No Regulatory Disqualifications. To the knowledge of
the Company, no event has occurred or condition exists or, to the extent it is
within the reasonable control of the Company, will occur or exist with respect
to the Company that, in connection with obtaining any approvals from any
Insurance Regulator required in connection with the transactions contemplated by
this Agreement or the Merger Agreement, would cause the Company or any Company
Subsidiary to fail to satisfy on its face any applicable statute or written
regulation of any Insurance Regulator, which is reasonably likely to adversely
affect the Company's ability to consummate the transactions contemplated hereby
or thereby.
Section 2.1.12. Registration Rights. Except for the Registration
Agreement, the registration rights granted pursuant to the Registration Rights
Agreement, dated April 29, 1996, between the Company and Textron Inc. and the
registration rights agreement with members of the Family Group (as defined in
the Registration Agreement), the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
Section 2.1.13. Acquisition Agreements. True and correct copies of (i)
the Merger Agreement and any agreements executed by the Company (or any of its
affiliates) and Revere in
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connection therewith (the "Merger Documents") and (ii) any agreement, letter of
intent, commitment letter or similar agreement or document relating to any
financing proposed to be incurred by the Company in connection with the Merger,
other than this Agreement and the Ancillary Agreements (the "Company Financing
Agreements"), have been furnished to the Purchaser.
Section 2.1.14. Rating Agency. From December 31, 1995 through the date
hereof, except as disclosed on Schedule 2.1.14, no rating agency has (i) imposed
conditions (financial or otherwise) on retaining any rating assigned to the
Company or any Company Insurance Subsidiary or (ii) threatened to downgrade any
rating assigned to the Company or any Company Insurance Subsidiary.
Section 2.1.15. Brokers. Other than its financial advisor, Goldman,
Sachs & Company, the Company has not employed any investment banker, broker,
finder, or intermediary in connection with the sale of the Shares, and the
Company is under no obligation to pay any investment banking, brokerage,
finder's or similar fee or commission in connection with such transactions,
other than certain fees payable to Goldman, Sachs & Company, which fees are the
obligation of the Company.
Section 2.1.16. Environmental Protection. (a) For purposes of this
Section 2.1.16, the following terms shall be defined as follows:
"Environmental Laws" means any federal, state or local statute, code,
ordinance, rule, regulation, permit, consent, approval, license, judgment,
order, writ, decree, injunction or other authorization and any amendments
thereto, relating to:
(i) emissions, discharges, release or threatened releases of
pollutants, contaminants or hazardous or toxic materials or wastes into
indoor or ambient air, surface water, ground water, publicly owned
treatment works, septic systems or land;
(ii) the treatment, storage, disposal, handling, manufacturing,
transportation, or shipment of Hazardous Water or hazardous and/or
toxic wastes, material, substances, products or by-products as defined
in the Comprehensive Environmental Response Compensation and Liability
Act as amended by the Superfund Amendments and Reauthorization Act, as
amended, 42 U.S.C. ss. 9601 et seq.; the Resource Conservation Recovery
Act, as amended, 42 U.S.C. ss. 6901 et seq. and the Toxic Substances
Control Act, as amended, 15 U.S.C. ss. 2601 et seq. as amended from
time to time and corresponding state legislation and all regulations
promulgated thereunder; or
(iii) otherwise relating to the pollution or protection of health
or the environment; and
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"Hazardous Waste" means any chemical substance or material including,
but not limited to wastes, petroleum and petroleum-derived substances, asbestos,
urea formaldehyde foam insulation, transformer equipment containing dielectric
fluid with levels of polychlorinated biphenyls, radon gas, radioactive materials
or other pollutants or contaminants which have the characteristic of hazardous
waste as set forth in or which are now or hereafter included or regulated by the
Clean Water Act, 33 U.S.C. ss. 1251 et seq.; the Clear Act, as amended, 42
U.S.C. ss. 7401, et seq.; the Federal Water Pollution Control Act, as amended,
33 U.S.C. ss. 1251 et seq.; CERCLA; RCRA; and TSCA.
(b) The Company and the Company Subsidiaries are not in violation of
any Environmental Laws, other than such violations which have not had and are
reasonably expected not to have a Material Adverse Effect and have, and are in
compliance with all terms and conditions of, all permits, licenses and
authorizations necessary for the conduct of their respective businesses, other
than such instances of non-compliance which are not reasonably likely to have a
Material Adverse Effect.
(c) Except as set forth on Schedule 2.1.16, there is no site which is
listed on either the National Priorities List pursuant to CERCLA or a similar
state or local law list with respect to which the Company has received notice
from the United States Environmental Protection Agency or a state or local
agency that the Company is considered to be a potentially responsible party by
reason of arranging for disposal, owning or operating any facility or site or
transporting any Hazardous Waste.
Section 2.1.17. Delaware Law. The Company has elected not to be
governed by the provisions of Section 203 of the Delaware General Corporation
Law ("DGCL") and such election is effective as of the date hereof and such
Section 203 (a) is not applicable to the transactions contemplated hereby and by
the Ancillary Agreements and (b) will not be applicable to any future
transactions between the Company, on the one hand, and the Purchaser and/or any
of its affiliates, on the other hand. The Company has taken all action so that
the entering into of this Agreement and the consummation of the sale of the
Shares and the other transactions contemplated by this Agreement do not and will
not result in the grant of any rights to any person under the Certificate of
Incorporation, By-laws or other governing instruments of the Company or restrict
or impair the ability of the Purchaser to vote, or otherwise to exercise the
rights of a stockholder with respect to, shares of the Company that may be
directly or indirectly acquired or controlled by the Purchaser.
Section 2.1.18. Incorporation of Representations and Warranties from
the Merger Agreement. Without qualifying any of the other representations and
warranties set forth in this Agreement, the representations and warranties of
the Company set forth in Sections 5.3, 5.4, 5.9, 5.11, 5.12, 5.13, 5.14, 5.16,
5.17, 5.18, 5.19 and 5.20 of the Merger Agreement (including any
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related definitions) shall be deemed to be incorporated by reference herein as
if fully set forth herein.
Section 2.2. Representations, Warranties and Covenants of the
Purchaser. The Purchaser represents and warrants to the Company that:
Section 2.2.1. Organization. The Purchaser is a corporation duly
organized and validly existing under the laws of Switzerland.
Section 2.2.2. Authorization. The Purchaser has full power and
authority to enter into this Agreement and the Ancillary Agreements. Each of
this Agreement, the Registration Agreement and the Relationship Agreement
constitute (and the Marketing Agreement, when executed and delivered, will
constitute) its valid and legally binding obligation, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether enforcement is sought by proceedings in equity or at law).
Section 2.2.3. Purchase for Investment. The Shares will be acquired for
investment for the Purchaser's (or its affiliates') own account and not with a
view to the resale or distribution of any part thereof, except in compliance
with the provisions of the Securities Act or an exemption therefrom.
Section 2.2.4. Restricted Securities. The Purchaser understands that
the Shares are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such shares may be resold without registration under the
Securities Act only in certain limited circumstances.
The Purchaser further agrees that each certificate representing the
Shares shall be stamped or otherwise imprinted with a legend substantially in
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE (I) HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN
REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE, AND (II) ARE SUBJECT TO THE PROVISIONS OF A
RELATIONSHIP AGREEMENT, DATED AS OF MAY 31, 1996, BETWEEN THE
COMPANY AND THE PURCHASER, COPIES OF WHICH ARE ON FILE AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY."
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A certificate shall not bear such legend if the Purchaser shall have delivered
to the Company an opinion of counsel reasonably satisfactory to the Company to
the effect that the securities being sold may be publicly sold without
registration under the Securities Act. The foregoing shall not be deemed to
affect the obligations of the Company under the Registration Agreement.
Section 2.2.5. No Regulatory Disqualifications. To the knowledge of the
Purchaser, no event has occurred or condition exists or, to the extent it is
within the reasonable control of the Purchaser, will occur or exist with respect
to the Purchaser that, in connection with obtaining any approvals from any
Insurance Regulator required in connection with the transactions contemplated by
this Agreement, would cause the Purchaser to fail to satisfy on its face any
applicable statute or written regulation of any Insurance Regulator, which would
be reasonably likely to adversely affect the Purchaser's ability to consummate
the transactions contemplated hereby or thereby.
Section 2.2.6. Purchaser Information. None of the information regarding
the Purchaser supplied by the Purchaser in writing specifically for inclusion in
(i) the registration statement to be filed by the Company as contemplated by
Section 4.10 of the Merger Agreement (the "Registration Statement") or (ii) the
proxy statement-prospectus to be filed by the Company as contemplated by Section
6.4 of the Merger Agreement (the "Proxy Statement") will, in the case of the
Registration Statement, at the time it becomes effective contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or, in the case of the Proxy Statement, at the time of the mailing
of the Proxy Statement to the Company's stockholders (or, in the case of any
amendment or supplement thereto, at the time of mailing of such amendment or
supplement, as the case may be) and at the time of the Stockholders' Meeting and
at the Effective Time (as defined in the Merger Agreement) contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Section 2.2.7. Consents. Assuming the accuracy of the representations
and warranties of the Company set forth in this Agreement, no consent, approval,
order or authorization of, or registration, qualification, designation,
declaration or filing with, any governmental authority, agency or body or any
other person on the part of the Purchaser is required in connection with the
consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements, except for (i) the filing of a Pre-Merger Notification
Form and related documents under the HSR Act, (ii) the filing of appropriate
documents with, and approval of, the Insurance Regulators and the Commissioners
of Insurance of any state or jurisdiction in which the Purchaser or
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any of its insurance subsidiaries is domiciled or does business, (iii) such
consents, approvals, notices or waivers as may be required under the laws of
Canada or any of the provinces thereof, (iv) filings required under the
Securities Act or the Securities Exchange Act of 1934, as amended, or (v) such
consents, approvals, orders, authorizations, registrations, qualifications,
designations, declarations or filings, which if not obtained or made, as the
case may be, are not reasonably likely to impair in any material respect the
ability of the Purchaser to perform any of its obligations or agreements
hereunder or under the Ancillary Agreements or consummate the transactions
contemplated hereby or thereby.
Section 2.2.8. Brokers. Other than Donaldson, Lufkin & Jenrette
Securities Corporation, the Purchaser has not employed any investment banker,
broker, finder, or intermediary in connection with the transactions contemplated
by this Agreement, and the Purchaser is under no obligation to pay any
investment banking, brokerage, finder's or similar fee or commission in
connection with such transactions, other than certain fees payable to Donaldson,
Lufkin & Jenrette Securities Corporation, which are the obligation of the
Purchaser (except to the extent otherwise provided in Section 6.1).
SECTION 3. CERTAIN AGREEMENTS OF THE PARTIES
Section 3.1. Conduct of Business of the Company. Except as set forth in
Schedule 3.1, from the date of this Agreement until the earlier of the Closing
or the termination of this Agreement, unless the prior written consent of the
Purchaser shall have been obtained, and except as otherwise contemplated by this
Agreement, the Company will conduct its operations according to its ordinary and
usual course of business consistent with past practice and shall use all
reasonable efforts to preserve intact its current business organizations, keep
available the service of its current officers and employees, maintain its
material permits and contracts and preserve its relationships with customers,
suppliers and others having business dealings with it. Without limiting the
generality of the foregoing, and except as otherwise contemplated by this
Agreement or as set forth in Schedule 3.1, the Company will not, without the
prior written consent of the Purchaser (which consent shall not be unreasonably
withheld):
(a) issue, sell, grant, dispose of, pledge or otherwise encumber, or
authorize or propose the issuance, sale, disposition or pledge or other
encumbrance of (i) any additional shares of capital stock of capital stock
of any class (including shares of Common Stock), or any securities or rights
convertible into, exchangeable for, or evidencing the right to subscribe for
any shares of capital stock, or any rights, warrants, options, calls,
commitments or any other agreements of any character to purchase or acquire
any shares of capital stock or any securities or rights convertible into,
exchangeable for, or evidencing the right
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to subscribe for, any shares of capital stock or (ii) any other securities
in respect of, in lieu of, or in substitution for, shares of Common Stock
outstanding on the date hereof;
(b) redeem, purchase or otherwise acquire, or propose to redeem,
purchase or otherwise acquire, any of its outstanding shares of Common
Stock;
(c) split, combine, subdivide or reclassify any shares of Common Stock
or declare, set aside for payment or pay any dividend, or make any other
actual, constructive or deemed distribution in respect of any capital stock
of the Company or otherwise make any payments to stockholders in their
capacity as such, other than the declaration and payment of regular
quarterly cash dividends on the Common Stock in an amount no greater than
$.18 per share and in accordance with past dividend policy and except for
dividends by a direct or indirect wholly owned Company Subsidiary;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other
reorganization of the Company or any of the Company Subsidiaries (other than
the Merger);
(e) adopt any amendments to its Certificate of Incorporation or Bylaws
or alter through merger, liquidation, reorganization, restructuring or in
any other fashion the corporate structure or ownership of any direct or
indirect Company Subsidiary, except for Company Subsidiaries which are not
material to the assets, liabilities, financial condition or results of
operations of the Company and the Company Subsidiaries taken as a whole;
(f) make, or permit any Company Subsidiary to make, any material
acquisition, by means of merger, consolidation or otherwise, or material
disposition, of assets or securities;
(g) other than in the ordinary course of business consistent with past
practice, incur, or permit any Company Subsidiary to incur, any material
indebtedness for borrowed money or guarantee any such indebtedness or make
any material loans, advances, or capital contributions to, or other material
investments in, any person other than the Company or any Company Subsidiary;
(h) change any method of accounting or accounting practice by the
Company or any Company Subsidiary, except for such required change in GAAP
or applicable statutory accounting principles;
(i) permit any Company Insurance Subsidiary to materially change its
investment guidelines or policies or
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conduct transactions in investments except in material compliance with the
investment guidelines and policies of such Company Insurance Subsidiary
and all applicable insurance laws;
(j) enter, or permit any Company Insurance Subsidiary to enter, into
any material reinsurance, coinsurance or similar agreement, whether as
reinsurer or reinsured, except in the ordinary course of business consistent
with past practice;
(k) (x) take, or agree or commit to take, or permit any Company
Subsidiary to take, or agree or commit to take, any action that would make
any representation and warranty of the Company hereunder inaccurate in any
material respect at the Closing (except for representations and warranties
which speak as of a particular date, which need be accurate only as of such
date), (y) omit, or agree or commit to omit, or permit any Company
Subsidiary to omit, or agree or commit to omit, to take any action necessary
to prevent any such representation and warranty from being inaccurate in any
material respect at the Closing (except for representations and warranties
which speak as of a particular date, which need be accurate only as of such
date), provided however that the Company shall be permitted to take or omit
to take such action which can be cured, and in fact is cured, at or prior to
the Closing, or (z) any action that would result in, or would be reasonably
likely to result in, any of the conditions set forth in Section 4 not being
satisfied; or
(l) authorize, recommend, propose or announce an intention to do any of
the foregoing, or enter into any contract, agreement, commitment or
arrangement to do any of the foregoing.
Section 3.2. Covenants of the Purchaser. Except as otherwise
contemplated by this Agreement, the Purchaser will not, without the prior
written consent of the Company, which consent shall not be unreasonably
withheld, (x) take, or agree or commit to take, any action that would make any
representation and warranty of the Purchaser hereunder inaccurate in any
material respect at the Closing (except for representations and warranties which
speak as of a particular date, which need be accurate only as of such date), (y)
omit, or agree or commit to omit, to take any action necessary to prevent any
such representation and warranty from being inaccurate in any material respect
at the Closing (except for representations and warranties which speak as of a
particular date, which need be accurate only as of such date), provided however
that the Purchaser shall be permitted to take or omit to take such action which
can be cured, and in fact is cured, at or prior to the Closing, or (z) any
action that would result in, or would be reasonably likely to result in, any of
the conditions set forth in Section 4 not being satisfied.
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Section 3.3. Proxy Statement; Stockholder Approval. The Company shall
call a special meeting of its stockholders (the "Stockholders' Meeting"), to be
held as soon as reasonably practicable after the date of this Agreement, for the
purpose of voting upon approval of the sale of Shares pursuant to this
Agreement, the issuance of shares of Company Common Stock pursuant to the Merger
Agreement, the Charter Amendment (as defined in the Merger Agreement) and such
other related matters as it deems appropriate. In connection with the
Stockholders' Meeting, (i) the Company shall prepare and file with the SEC a
Proxy Statement and mail such Proxy Statement to its stockholders, (ii) the
Board of Directors of the Company shall recommend to its stockholders the
approval of the sale of Shares pursuant to this Agreement and (subject to the
terms of the Merger Agreement) the issuance of shares of Common Stock pursuant
to the Merger Agreement and the Charter Amendment and (iii) the Board of
Directors and officers of the Company shall use their reasonable efforts to
obtain such stockholders' approval (subject to the terms of the Merger
Agreement).
Section 3.4. Approvals, Etc. Subject to the terms and conditions
provided herein, each of the parties hereto agrees to (i) promptly effect all
registrations, submissions and filings, including but not limited to, filings
under the HSR Act, submissions to the Insurance Regulators and filings required
under the Registration Agreement, which may be necessary or required in
connection with the consummation of the transactions contemplated by this
Agreement and, in the case of the Company, the Merger Agreement, (ii) to use all
reasonable efforts to take all other action and to do all other things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement and, in the case of
the Company, the Merger Agreement and (iii) use all reasonable efforts to obtain
all other necessary or appropriate waivers, consents and approvals with respect
to the transactions contemplated by this Agreement and, in the case of the
Company, the Merger Agreement.
Section 3.5. Exclusivity. The Company hereby agrees that, prior to the
Closing Date, the Company shall not solicit or accept alternative sources for
the investment contemplated by this Agreement. The Company further agrees that
it will not utilize any funds or other sources of financing to finance the
Merger without first consummating the full purchase and sale provided hereunder.
Section 3.6. Publicity. Neither the Company nor the Purchaser shall
make any public announcement concerning this Agreement or the other transactions
contemplated hereby without the prior written consent of the other, except as
may be required by law or stock exchange rule.
Section 3.7. Modification of Other Agreements. Without the prior
written consent of the Purchaser, the Company
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shall not amend in any material respect any provision of, or waive any condition
to the performance by the Company or its affiliates of any of their respective
obligations under, any of the Merger Documents or the Company Financing
Agreements.
Section 3.8. Exchange Listing. The Company shall as promptly as
practicable prepare and submit to the New York Stock Exchange ("NYSE") a listing
application covering the Shares, and shall use all reasonable efforts to obtain,
prior to the Closing, approval for the listing of the Shares on the NYSE,
subject to official notice of issuance.
Section 3.9. Investigation and Confidentiality. (a) Prior to the
Closing, the Company shall keep the Purchaser advised of all material
developments relevant to its business and to consummation of the Merger and the
sale of the Shares and shall permit the Purchaser to make or cause to be made
such investigation of its business and properties and of its financial and legal
condition as the Purchaser reasonably requests, provided that such investigation
shall be reasonably related to the transactions contemplated hereby and shall
not interfere unnecessarily with normal operations. The Purchaser agrees that it
will not, and will cause its officers, employees and agents not to, use any
information obtained pursuant to this Section 3.9 for any purpose unrelated to
the performance of the obligations under, or the consummation of the
transactions contemplated by, this Agreement or the Ancillary Agreements.
(b) The Purchaser agrees that the Confidentiality Agreement, dated
December 3, 1995, by and between Provident Life and Accident Insurance Company
of America and Centre ReSource Limited (the "Confidentiality Agreement"), shall
be binding upon the Purchaser and shall apply with respect to information
furnished by the Company or any of its Subsidiaries, or any of their respective
officers, employees, counsel, accountants and other authorized representatives
hereunder.
(c) Notwithstanding the provisions hereof, during the period prior to
the Closing Date, the parties shall take appropriate precautions to ensure that
competitively sensitive information is not exchanged in a manner which is
inconsistent with applicable law.
Section 3.10. State Takeover Laws; Charter Provisions. Each of the
Company and the Company Subsidiaries shall take all necessary action to ensure
that the entering into of this Agreement and the consummation of the sale of the
Shares and the other transactions contemplated hereby do not and will not result
in the grant of any rights to any Person under the Certificate of Incorporation,
Bylaws or other governing instruments of the Company or restrict or impair the
ability of the Purchaser to vote, or otherwise to exercise the rights of a
stockholder with respect to, shares of the Company that may be directly or
indirectly acquired or controlled by the Purchaser.
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Section 3.11. Use of Proceeds. The proceeds from the sale of the Shares
shall be used to fund payments required to be made by the Company in connection
with the Merger.
Section 3.12. Marketing Agreement. The parties hereto agree to
negotiate in good faith, and execute prior to the Closing, the Marketing
Agreement, which agreement shall (i) be effective as of the Closing, (ii) have
terms consistent with the summary of terms attached hereto as Exhibit 1 and
(iii) have such other terms as the parties may agree to.
Section 3.13. Restrictive Agreements Prohibited. The Company shall not
become a party to any agreement which by its terms violates the terms of this
Agreement or any of the Ancillary Agreements.
SECTION 4. CLOSING CONDITIONS
Section 4.1. Conditions to Obligation of Purchaser. The obligation of
the Purchaser to purchase the Shares shall be subject to its satisfaction or
waiver of the following conditions on or before the Closing Date:
Section 4.1.1. Representations and Warranties Complete and Correct. The
representations and warranties of the Company contained in Section 2.1 hereof
which are qualified as to materiality or a Material Adverse Effect shall have
been true and correct when made and shall be true and correct at and as of the
Closing Date, after giving effect to the transactions contemplated by this
Agreement and the Merger Agreement, as if made on and as of such date (except
for representations and warranties which are confined to a specified date, which
shall be true and correct as of such date). The representations and warranties
of the Company contained in Section 2.1 hereof which are not qualified as to
materiality or a Material Adverse Effect shall have been true and correct in all
material respects when made and shall be true and correct in all material
respects at and as of the Closing Date, after giving effect to the transactions
contemplated by this Agreement and the Merger Agreement, as if made on and as of
such date (except for representations and warranties which are confined to a
specified date, which shall be true and correct in all material respects as of
such date).
Section 4.1.2. Compliance with this Agreement. The Company shall have
performed and complied in all material respects with all agreements, covenants
and conditions contained herein which are required to be performed or complied
with by it on or before the Closing Date.
Section 4.1.3. Officers' Certificate. The Purchaser shall have received
a certificate, dated the Closing Date and signed by the President or any Vice
President and attested by the Secretary of the Company, certifying that the
conditions set
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forth in Sections 4.1.1 and 4.1.2 are satisfied on and as of such date.
Section 4.1.4. Consents; Etc. The Company shall have received all
consents, approvals and other authorizations that may be required from, and made
all such filings and declarations that may be required with, any governmental
authority or agency pursuant to any law, statute, regulation or rule (federal,
state, local and foreign), or pursuant to any agreement, order or decree by
which the Company or any of its assets is bound, in connection with the
transactions contemplated by this Agreement.
Section 4.1.5. Supporting Documents. The Purchaser shall have received
copies of the following documents:
(i) (A) the Certificate of Incorporation, certified as of a recent date
by the appropriate authority of the Company's jurisdiction of incorporation;
and (B) a certificate of such authority dated as of a recent date as to the
due incorporation and good standing of the Company, and listing all
documents of the Company on file with said authority; and
(ii) a certificate of the Secretary or an Assistant Secretary of the
Company dated the Closing Date and certifying: (A) that attached thereto is
a true and complete copy of the Bylaws of the Company as in effect on the
date of such certification; (B) that attached thereto is a true and complete
copy of all resolutions adopted by the Board of Directors or the
stockholders of the Company authorizing the execution, delivery and
performance of this Agreement and the Ancillary Agreements, the issuance,
sale and delivery of the Shares, and that all such resolutions are in full
force and effect and are all the resolutions adopted in connection with the
transactions contemplated by this Agreement, the Marketing Agreement and the
Registration Agreement; (C) that the Certificate of Incorporation has not
been amended since the date of the last amendment referred to in the
certificate delivered pursuant to clause (i)(B) above; and (D) that the
Bylaws have not been amended since the date of the last amendment referred
to in such certificate pursuant to subclause (ii)(A) above.
Section 4.1.6. HSR Act. Any required waiting periods under the HSR Act
relating to the transactions to be consummated on the Closing Date shall have
expired or been terminated.
Section 4.1.7. Merger Closing. The closing under the Merger Agreement
shall have occurred or shall occur simultaneously with the Closing hereunder.
Section 4.1.8. Other Agreements. The Company shall have complied with
all agreements required to be complied with by it on or before the Closing Date
under the Ancillary Agreements.
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Section 4.1.9. Material Adverse Change. Except as disclosed in the SEC
Documents filed prior to the date hereof, or as set forth in Schedule 2.1.10 or
as a consequence of, or as contemplated by, this Agreement or the Merger
Agreement, since December 31, 1995, there shall not have occurred any change,
and no additional information shall have been disclosed to the Purchaser, which
is reasonably likely to have a material adverse effect on the financial
condition, results of operations, assets or liabilities of the Company and the
Company Subsidiaries, taken as a whole, or a material adverse effect on the
financial condition, results of operations, assets or liabilities of Revere and
its subsidiaries, taken as a whole.
Section 4.1.10. Illegality, Etc. No statute, rule or regulation, or
order, decree or injunction enacted, entered, promulgated or enforced by any
court or governmental authority shall be in effect which prohibits or restricts
the consummation of the transactions contemplated hereby.
Section 4.1.11. Stockholder Approval. Each of the sale of Shares
pursuant to this Agreement, the issuance of shares of Common Stock pursuant to
the Merger Agreement and the Charter Amendment shall have been duly approved by
the stockholders of the Company entitled to vote with respect thereto in
accordance with applicable law and the Certificate of Incorporation and Bylaws
of the Company and, in the case of the issuance of shares of Common Stock
pursuant to the Merger Agreement and the sale of the Shares, the rules of the
NYSE.
Section 4.1.12. Exchange Listing. The Shares shall have been approved
for listing on the NYSE, subject to official notice of issuance.
Section 4.1.13. Financing of Cash Payments in Merger. The Company shall
have obtained financing for the aggregate cash payments to be made to
stockholders of Revere in the Merger pursuant to the Company Financing
Agreements.
Section 4.1.14. Maclellan Family Agreement. The Purchaser shall have
entered into an agreement with the members of the Maclellan family, in form and
substance substantially in the form attached hereto as Exhibit 4.
Section 4.1.15. Legal Opinions. The Purchaser shall have received an
opinion or opinions of counsel to the Company, dated as of the Closing, covering
the matters set forth in Exhibit 5.
Section 4.2. Conditions to the Obligations of the Company. The
Company's obligation to sell the Shares shall be subject to the satisfaction or
waiver by it of the following conditions on or before the Closing Date:
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Section 4.2.1. Compliance with the Agreement. The Purchaser shall have
performed and complied in all material respects with all agreements and
conditions contained herein which are required to be performed or complied with
by it on or before the Closing Date.
Section 4.2.2. Purchaser's Representations and Warranties Complete and
Correct. The Purchaser's representations and warranties contained in Section 2.2
of this Agreement shall be true and correct in all material respects when made
and shall be true and correct in all material respects at and as of the Closing
Date, after giving effect to the transactions contemplated by this Agreement, as
if made on and as of such date.
Section 4.2.3. Officer's Certificate. The Company shall have received a
certificate, dated the Closing Date and signed by a duly authorized officer of
the Purchaser, certifying that the conditions set forth in Section 4.2.2 are
satisfied on and as of such date.
Section 4.2.4. Consents; Etc. The Company shall have received all
consents, approvals and other authorizations that may be required from, and made
all such filings and declarations that may be required with, any governmental
authority or agency pursuant to any law, statute, regulation or rule (federal,
state, local and foreign), or pursuant to any agreement, order or decree by
which the Company or any of its assets is bound, in connection with the
transactions contemplated by this Agreement.
Section 4.2.5. HSR Act. Any required waiting periods under the HSR Act
relating to the transactions to be consummated on the Closing Date shall have
expired or been terminated.
Section 4.2.6. Merger Closing. The closing under the Merger Agreement
shall have occurred or shall occur simultaneously with the Closing hereunder.
Section 4.2.7. Illegality, Etc. No statute, rule or regulation, or
order, decree or injunction enacted, entered, promulgated or enforced by any
court or governmental authority shall be in effect which prohibits or restricts
the consummation of the transactions contemplated hereby.
Section 4.2.8. Stockholder Approval. Each of the sale of Shares
pursuant to this Agreement, the issuance of shares of Common Stock pursuant to
the Merger Agreement and the Charter Amendment shall have been duly approved by
the stockholders of the Company entitled to vote with respect thereto in
accordance with applicable law and the Certificate of Incorporation and Bylaws
of the Company and, in the case of the issuance of shares of Common Stock
pursuant to the Merger Agreement and the sale of the Shares, the rules of the
NYSE.
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Section 4.2.9. Exchange Listing. The Shares shall have been approved
for listing on the NYSE, subject to official notice of issuance.
Section 4.2.10. Financing of Cash Payments in Merger. The Company shall
have obtained financing for the aggregate cash payments to be made to
stockholders of Revere in the Merger pursuant to the Company Financing
Agreements.
Section 4.2.11. Legal Opinions. The Company shall have received an
opinion or opinions of counsel to the Purchaser, dated as of the Closing,
covering the matters set forth in Exhibit 6.
SECTION 5. TERMINATION
Section 5.1. Termination. This Agreement may be terminated as follows:
(a) by mutual written consent of the Company and the Purchaser;
(b) by either party if the Closing shall not have occurred by May 28,
1997 (and the failure of the Closing to occur is not due to the breach by either
party of this Agreement);
(c) by either party if the Merger Agreement is terminated;
(d) by either party (provided that the terminating party is not then in
material breach of any representation, warranty, covenant or other agreement
contained in this Agreement) in the event of a breach by the other party of any
representation or warranty contained in this Agreement which cannot be or has
not been cured within 30 days after the giving of written notice to the
breaching Party of such breach and which breach would cause (i) in the case of a
breach by the Company, the conditions set forth in Section 4.1.1 not to be
satisfied (assuming the Closing were to occur on the date of such termination),
and (ii) in the case of a breach by the Purchaser, the conditions set forth in
Section 4.2.2 not to be satisfied (assuming the Closing were to occur on the
date of such termination); or
(e) by either party (provided that the terminating party is not then in
material breach of any representation, warranty, covenant or other agreement
contained in this Agreement) in the event of a material breach by the other
party of any covenant or agreement contained in this Agreement which cannot be
or has not been cured within 30 days after the giving of written notice to the
breaching party of such breach; or
(f) by either party (provided that the terminating party is not then in
material breach of any representation,
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warranty, covenant or other agreement contained in this Agreement) in the event
any court of competent jurisdiction in the United States or some other
governmental body or regulatory authority shall have issued an order permanently
restraining, enjoining or otherwise prohibiting the sale of the Shares and such
order shall have become final and nonappealable; provided that the party seeking
to terminate this Agreement pursuant to this Section 5.1(f) shall have used all
reasonable efforts to remove such order; or
(g) by either party, if the sale of the Shares, the issuance of shares
of Common Stock in the Merger and the Charter Amendment shall have been voted on
by stockholders of the Company and the vote shall not have been sufficient to
satisfy the conditions set forth in Sections 4.1.11 and 4.2.8.
Section 5.2. Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 5.1, this Agreement shall forthwith become
void and have no effect, without any liability on the part of any party hereto,
other than the provisions of Sections 3.6, 3.9(b), 5.2, 5.3 and 6.1, which shall
survive any such termination. Nothing contained in this Section 5.2 shall
relieve any party from liability for any willful breach of this Agreement.
Section 5.3. Termination Fee. The Company hereby agrees that if the
Merger Agreement (or any similar agreement entered into by the Company (and/or
one or more of its affiliates) and Revere (or one or more of its affiliates)
which contemplates a business combination involving the Company and Revere or
sale of a majority of the equity interests or assets of the Company or Revere to
the other) is terminated and, in connection with such termination, the Company
(or any of its affiliates) receives a termination or similar fee (a "Termination
Fee"), the Company shall pay to the Purchaser, on the date a Termination Fee is
paid to the Company (or such affiliates), a cash fee in an amount equal to 20%
of the aggregate Termination Fee, payable in immediately available funds to an
account specified by the Purchaser.
SECTION 6. MISCELLANEOUS
Section 6.1. Expenses and Indemnification. (a) The Company hereby
agrees to pay or reimburse the Purchaser and its affiliates for all
out-of-pocket expenses (including the reasonable fees and disbursements of legal
counsel and investment and other advisors and consultants and expenses incurred
in connection with the preparation of the letter agreement dated April 27, 1996
(the "Commitment Letter"), this Agreement and the Ancillary Agreements) incurred
by any of them in connection with the Purchaser's consideration of various
proposed financing and other transactions between the Purchaser and/or its
affiliates and the Company and the transactions referred to herein, including,
without limitation, the transactions contemplated
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hereby and by the Merger Agreement, whether incurred before or after the date
hereof and whether or not such transactions are made or effected; provided that
the aggregate of such amounts shall not exceed $1,500,000 and the Company shall
not be obligated to make such payment or reimbursement prior to the earlier of
(i) the Closing Date and (ii) termination of this Agreement. Any such amounts
shall be paid or reimbursed promptly after invoicing thereof by the Purchaser
which invoicing shall be accompanied by supporting detail evidencing such
expenses.
(b) In addition to the foregoing the Company agrees to indemnify and
hold harmless the Purchaser and any of its officers, partners, members,
directors, employees and affiliates (direct or indirect) from and against all
actions, suits, proceedings (including any investigations or inquiries), claims,
losses, damages, liabilities or expenses of any kind or nature whatsoever
("Claims") which may be incurred by or asserted against or involve the
Purchaser, or any of its officers, partners, members, directors, employees or
affiliates (direct or indirect) as a result of any third party claim arising out
of the transactions contemplated hereby and, upon demand by the Purchaser or any
such officer, partner, member, director, employee or affiliates, pay or
reimburse any of the Purchaser or such officers, partners, members, directors,
employees or affiliates for any reasonable out-of-pocket legal or other
expenses, and other internal costs incurred by the Purchaser or its officers,
partners, members, directors, employees or affiliates (direct or indirect) in
connection with the investigation, defending or preparing to defend any such
Claim, provided that the foregoing indemnity shall not apply to the extent any
Claim arises from any material breach by the Purchaser of this Agreement or the
gross negligence or willful misconduct of an indemnified party.
(c) Each person entitled to indemnification under Section 6.1(b) (each
an "Indemnified Party") shall give notice to the Company promptly after such
Indemnified Party has actual knowledge of any Claim as to which indemnity may be
sought, and shall permit the Company to assume the defense of any such Claim;
provided, that counsel for the Company, who shall conduct the defense of such
Claim, shall be approved by the Indemnified Party (which approval shall not be
unreasonably withheld) and the Indemnified Party may participate in such defense
at such party's expense (unless the Indemnified Party shall have reasonably
concluded that there is a conflict of interest between the Indemnified Party and
the Company in such action, in which case the reasonable fees and expenses for
one such counsel for all Indemnified Parties (and one local counsel) shall be at
the expense of the Company), and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Company of its obligations under Section 6.1(b) or this Section 6.1(c) unless
the Company is materially prejudiced thereby. The Company may not, in the
defense of any such Claim, except with the consent of each Indemnified Party
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<PAGE>
(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 of such Claim. Each
Indemnified Party shall furnish such information regarding itself or the Claim
in question as the Company may reasonably request in writing and as shall be
reasonably required in connection with the defense of such Claim.
Section 6.2. Survival of Agreements. The representations and warranties
(i) of the Company set forth in Sections 2.1.1, 2.1.2, 2.1.3, 2.1.4, 2.1.5,
2.1.7, 2.1.12, 2.1.15 and 2.1.17 hereof and (ii) of the Purchaser set forth in
Sections 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.6, 2.2.7 and 2.2.8 shall survive the
Closing indefinitely. None of the other agreements, representations or
warranties made in this Agreement, or any certificate or instrument delivered to
the Purchaser pursuant to or in connection therewith shall survive the Closing;
provided, however, that this Section 6.2 shall not limit any (x) covenant or
agreement of the parties hereto which by its terms contemplates performance
after the Closing Date or (y) rights or remedies otherwise available to the
Company or the Purchaser at law or in equity; provided, further, that the
Confidentiality Agreement shall survive any termination of this Agreement.
Section 6.3. Parties in Interest. All representations, covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not; provided that the
Purchaser shall not assign its rights to purchase shares of Common Stock under
this Agreement to any non affiliate without first obtaining the prior written
consent of the Company, which consent may be withheld by the Company in its sole
discretion.
Section 6.4. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person or
mailed by certified or registered mail, return receipt requested, or sent by
facsimile transmission, addressed as follows:
(a) if to the Company:
Provident Companies, Inc.
1 Fountain Square
Chattanooga, Tennessee 37402
Attention: Chief Financial Officer
Fax No.: (423) 755-2590
with a copy to:
Alston & Bird
1201 W. Peachtree Street
Atlanta, Georgia 30309
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<PAGE>
Attention: F. Dean Copeland, Esq.
Fax No.: (404) 881-7777
(b) if to the Purchaser:
Zurich Insurance Company
Mythenquai 2
P.O. Box Ch-8022
Zurich, Switzerland
Attention: General Counsel
Fax No.: 011-411-202-1063
with copies to:
Zurich Center Resource Limited
One Chase Manhattan Plaza
New York, New York 10005
Attention: General Counsel
Fax No.: (212) 898-5002
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
Fax No.: (212) 821-8111
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or on the date
actually received, if sent by mail or telex, with receipt acknowledged.
Section 6.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to conflicts of law principles thereof.
Section 6.6. Entire Agreement. This Agreement, including the Schedules
and Exhibits hereto, constitutes the sole and entire agreement of the parties
with respect to the subject matter hereof. All Schedules and Exhibits hereto are
hereby incorporated herein by reference. The Commitment Letter shall hereby be
deemed to be terminated.
Section 6.7. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.8. Amendments. This Agreement may not be amended or modified,
and no provisions hereof may be waived, without the written consent of the
Company and the Purchaser.
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<PAGE>
Section 6.9. Severability. If any provision of this Agreement shall be
declared void or unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
Section 6.10. Titles and Subtitles. The titles and subtitles used in
this Agreement are for convenience only and are not to be considered in
construing or interpreting any term or provision of this Agreement. The term
"date of this Agreement" and words of similar import (such as "date hereof")
shall mean and refer to May 31, 1996.
Section 6.11. Further Assurances. From and after the date of this
Agreement, upon the request of the Purchaser or the Company, the Company and the
Purchaser shall execute and deliver such instruments, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement and the
Preferred Shares.
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<PAGE>
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Agreement as of the day and year first above written.
PROVIDENT COMPANIES, INC.
By: /s/ Thomas R. Watjen
Name: Thomas R. Watjen
Title: Executive Vice President
ZURICH INSURANCE COMPANY
By: /s/ Steven M. Gluckstern
Name: Steven M. Gluckstern
Title: Representative
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<PAGE>
EXHIBIT 1
Terms of Merger Agreement
The strategic relationship described herein will be set forth in a "Marketing
Agreement" entered into by the parties. The concepts listed below require
further discussions to develop them fully, but it is contemplated that the
Marketing Agreement would include the following:
1. Provident intends to continue to offer a wide range of Individual
and Employee Benefit products to its customers, through multiple
distributions channels. Provident would agree to utilize products
developed by Zurich whenever possible to meet its customers'
needs. In the Individual marketplace, these products opportunities
may include term life, whole life, universal life, variable
universal life, individual property and casualty insurance
products, and fixed and variable annuities. When a "Zurich
product" is sold, Provident would expect to receive consideration
"normal and customary" for the business and would expect to have
reasonable opportunity to participate as a reinsurer on this
business.
2. Provident intends to expand its offerings of retirement/asset
accumulation products to its Individual and Employee Benefits
customers. It would be Provident's intent, depending on the
products' design and features, to offer to its customers mutual
funds and institutional asset management services offered by
Zurich. As Provident considers integrating life and investment
product features into its Disability products, Provident would
intend to utilize Zurich's products, as appropriate, in these new
product offerings. Provident would again expect "normal and
customary" consideration when placing business in this capacity.
3. Zurich would agree to market Provident's Individual Disability
product through its U.S. marketing channels whenever possible,
including Kemper. The terms of such an agreement would be similar
to those used in other "Corporate Agreements", where Zurich would
receive consideration for acting as an intermediary. Provident
would also intend to offer Zurich the opportunity to reinsure a
portion of this business if appropriate.
4. Zurich and Provident would jointly explore opportunities to market
Individual and Group Disability products outside the U.S. In
general it would be expected that Provident would contribute its
product
<PAGE>
and risk management expertise, while Zurich would contribute its
local market knowledge and marketing capabilities.
5. Zurich and Provident would jointly explore opportunities which may
exist in linking Group Long-Term Disability coverage with Workers
Compensation coverage. Both companies recognize the potential
market for a "24 hour" coverage and would commit the resources
necessary to investigate whether a mutually acceptable opportunity
may exist.
6. Zurich and Provident would continue to seek other opportunities to
leverage each other's strengths, and to bring better value and
service to both organizations' customers. This may include
reinsurance transactions and potential investment management
ventures.
7. If Provident elects to engage in a significant reinsurance
transaction with respect to its Individual Disability block of
business, Provident will give Zurich the right to provide such
reinsurance on market terms. Provident agrees to offer to Zurich
the opportunity to propose other reinsurance transactions and
investment management arrangements and to consider such proposals
in good faith.
The strategic initiatives outlined above would not be finalized prior to the
closing of the other "Investor Transactions" described in the letter agreement
to which this Exhibit is attached. Provident and Zurich would however expect to
refine the understanding noted above and have such an understanding documented
in a general "Marketing Agreement".
Each of Zurich and Provident would commit up to $1.5 million to a joint
marketing/development program to fund the expenses and/or hire dedicated staff
to pursue the relationship.
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<PAGE>
EXHIBIT 6
AMENDED AND RESTATED
RELATIONSHIP AGREEMENT
----------------------
THIS AMENDED AND RESTATED RELATIONSHIP AGREEMENT (this "Agreement") is
made and entered into as of May 31, 1996, by and between PROVIDENT COMPANIES,
INC., a corporation organized and existing under the laws of the State of
Delaware (the "Company"), and ZURICH INSURANCE COMPANY, a corporation organized
and existing under the laws of Switzerland (the "Investor").
WHEREAS, on May 31, 1996 the parties hereto signed the original
Relationship Agreement and such parties desire to amend and restate such
Agreement as of such date; and
WHEREAS, this Amended and Restated Relationship Agreement is being
executed on November 27, 1996 as of May 31, 1996;
NOW, THEREFORE, in consideration of the mutual warranties,
representations, covenants and agreements set forth herein, the parties,
intending to be legally bound, agree as follows:
ARTICLE ONE
DEFINITIONS
-----------
As used in this Agreement and any amendments hereto, the following
terms shall have the following meanings respectively:
"Affiliate" shall have the meaning set forth in regulations of the SEC
included in 17 C.F.R. ss. 230.405.
"Beneficial owner" (and various derivations of such term such as
"beneficially owned") shall have the meaning set forth in the regulations of the
SEC included in 17 C.F.R. ss. 240.13d-3; provided that for purposes of this
Agreement, any option, warrant, right, conversion privilege or arrangement to
purchase, acquire or vote Company Voting Securities regardless of the time
period during or at which it may be exercised and regardless of the
consideration paid shall be deemed to give the holder thereof beneficial
ownership of the Company Voting Securities to which it relates (excluding,
however, First Offer Shares (as defined in the Amended and Restated Family
Stockholder Agreement (as the same may be amended or supplemented from time to
time, the "Family Agreement") to be dated as of the Closing (as defined in the
Purchase Agreement) among the Investors and the holders of Family Shares (the
"Family Stockholders")) until such time as such First Offer Shares are acquired
by the Investor or an affiliate thereof pursuant to the Family Agreement). Any
Company Voting Securities which are subject to such options, warrants, rights,
conversion privileges or other arrangements shall be deemed to be outstanding
for purposes of computing the percentage of outstanding securities owned by such
Person but shall not be deemed to be outstanding for the purpose of computing
the percentage of outstanding securities owned by any other Person.
<PAGE>
"Common Stock" shall mean the $1.00 par value common stock of the
Company and any security which is exchanged or substituted for such common
stock.
"Company Voting Securities" shall mean all classes of capital stock of
the Company which are then entitled to vote generally in the election of
directors and any securities exchanged or substituted for such classes of
capital stock and any securities convertible into or exchangeable or exercisable
for (whether or not presently convertible, exchangeable or exercisable) such
classes of capital stock. For purposes of determining the amount or percentage
of outstanding Company Voting Securities beneficially owned by a Person, and for
purposes of calculating the aggregate voting power relating to such Company
Voting Securities, securities that are deemed to be outstanding shall be
included to the extent provided in the definition of "beneficial owner."
"Effective Time" shall have the meaning set forth in the Merger
Agreement (as defined below).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Family Representatives" shall mean initially Hugh O. Maclellan, Jr.,
Charlotte M. Heffner, Kathrina H. Maclellan and The Maclellan Foundation, Inc.
(the "Foundation"), or such other persons as shall have been appointed by
written notice to the Company and the Investor as the representatives of the
holders of the Family Shares for purposes of this Agreement; provided, however,
that the number of Family Representatives shall not exceed four at any time.
"Family Shares" shall mean any Company Voting Securities beneficially
owned by the Foundation, trusts for the benefit of the Foundation or those
members of the Maclellan family and other trusts and foundations identified on
Schedule A attached hereto.
"Initial Threshold" shall mean that percentage of the Outstanding
Voting Power equal to the percentage of the Company Voting Securities
beneficially owned by the Investor as of the Closing (as defined in the Purchase
Agreement), after giving effect to the transactions contemplated by the Purchase
Agreement and the Merger Agreement (as defined in the Purchase Agreement).
"Outstanding Voting Power" shall mean total number of votes which may
be cast in the election of directors of the Company at any meeting of
stockholders of the Company if all Company Voting Securities then outstanding
were present and voted at such meeting, other than votes that may be cast only
by one class or series of stock (other than the Common Stock) or upon the
happening of a contingency.
"Party" shall mean either the Company, on the one hand, or the
Investor, on the other hand, and "Parties" shall mean the Company and the
Investor.
"Person" shall mean a natural person or any legal, commercial or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability company,
trust, business association, group (within the meaning of Section 13(d)(3) of
the Exchange Act), or any person acting in a representative capacity.
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<PAGE>
"Purchase Agreement" shall mean that certain Amended and Restated
Common Stock Purchase Agreement, entered into as of November 27, 1996 and dated
as of May 31, 1996, by and between the Company and the Investor, as the same may
be amended.
"Qualifying Tender Offer" shall mean an offer to purchase or exchange
for cash or other consideration any Company Voting Securities (whether pursuant
to a tender offer within the meaning of Section 14(d) of the Exchange Act or
otherwise) (i) which is made by or on behalf of the Company or (ii) which is
made by or on behalf of any other Person and which is approved by the Board of
Directors of the Company or not opposed by the Board of Directors of the Company
by two business days prior to the expiration of such offer.
"Registration Rights Agreement" shall mean the Amended and Restated
Registration Rights Agreement, dated as of May 31, 1996, between the Investor
and the Company, as the same may be amended.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Standstill Agreement" shall mean the Standstill Agreement, dated as of
April 29, 1996, by and between the Company and Textron.
"Subsidiary" shall mean any "Subsidiary" of the Company as defined in
Regulation S-X under the Exchange Act.
"Textron" shall mean Textron Inc. and its successors and assigns.
"Textron Shares" shall mean (i) all of the shares of Common Stock
issued to Textron in the Merger and (ii) any Company Voting Securities issued in
respect of any subdivision, split or dividend on the shares of Common Stock
described in subparagraph (i).
ARTICLE TWO
COVENANTS AND AGREEMENTS
------------------------
2.1 Directors.
---------
(a) Effective as of the Closing, the Company shall take such
action as may be necessary to increase by two the number of members of the Board
of Directors of the Company and to elect to fill such newly created vacancies
two persons designated by the Investor. So long as the Investor is the
beneficial owner of Company Voting Securities representing 10% or more of the
Outstanding Voting Power, the Investor shall be entitled to designate two
persons to serve as directors of the Company. So long as the Investor and its
Affiliates are the beneficial owners of Company Voting Securities representing
5% or more but less than 10% of the Outstanding Voting Power, the Investor shall
be entitled to designate one person to serve as a director of the Company. In
the event that the Investor and its Affiliates are the beneficial owners of
Company Voting Securities representing less than 5% of the Outstanding Voting
Power, the Investor shall not be entitled to designate any person to serve as a
director of the Company. Each of the
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<PAGE>
persons designated by the Investor pursuant to this Section 2.1(a) is referred
to herein as an "Investor Designee."
(b) The Company shall use all reasonable efforts to cause the
election of the required number of Investor Designees to the Board of Directors
of the Company including taking the following actions: (i) at each annual
meeting of Company stockholders at which an Investor Designee's term as a
director expires or at any other meeting of the Company's stockholders at which
directors are to be elected, if the Investor is still entitled to designate one
or more persons to serve as a director of the Company in accordance with this
Agreement, the Investor Designees shall be included in the slate of nominees
recommended by the Company's Board of Directors to the stockholders for election
as directors, unless either (x) an Investor Designee requests not to be so
included in the slate of nominees, in which case such Investor Designee shall
not be so included, or (y) service by an Investor Designee as a director or his
nomination for election as a director is violative of applicable law or
regulation (provided that, in such case, the Investor shall be provided an
opportunity to designate an alternate person to serve as a director). and (ii)
in the event that an Investor Designee is unable to serve, or once having
commenced to serve, is removed or withdraws from the Board of Directors of the
Company, the Investor will have the right to designate such person's replacement
and the Company agrees to take all reasonable action within its power to cause
the election of the substitute Investor Designee to the Board of Directors of
the Company as soon as possible following such person's designation.
(c) In the event that, any time after an annual meeting of
Company stockholders in connection with which the Investor was entitled to
designate two Investor Designees and such Investor Designees were elected as
directors, such Investor Designees are still serving as directors, and prior to
the next annual meeting of Company stockholders the Investor shall beneficially
own Company Voting Securities representing less than 10% but 5% or more of the
Outstanding Voting Power, then, at the request of the Company (provided Investor
at the time of such request shall still beneficially own Company Voting
Securities representing less than 10% but 5% or more of the Outstanding Voting
Power), the Investor shall use all reasonable efforts to cause one of the
Investor Designees then in office to resign as a director. In the event that,
any time after an annual meeting of Company stockholders in connection with
which the Investor was entitled to designate one or more Investor Designees,
such Investor Designees were elected as directors and such Investor Designees
are still serving as directors at such time prior to the next annual meeting of
Company stockholders when the Investor shall beneficially own Company Voting
Securities representing less than 5% of the Outstanding Voting Power, then, at
the request of the Company (provided Investor at the time of such request still
beneficially owns Company Voting Securities representing less than 5% of the
Outstanding Voting Power), the Investor shall use all reasonable efforts to
cause all Investor Designees then in office to resign as directors.
(d) At the request of the Investor, the Company shall cause
the Investor Designees then required to be included in the slate of nominees
recommended by the Company's Board of Directors for the election to the
Company's Board of Directors to be elected to serve on the Board of Directors of
each Subsidiary.
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<PAGE>
(e) So long as the Investor beneficially owns Company Voting
Securities representing 5% or more of the Outstanding Voting Power, the Company
shall effect all action necessary to appoint one Investor Designee to the
Executive Committee of the Board of Directors (or other committee or group
performing similar functions) (the "Executive Committee") of the Company and
each Subsidiary having such a committee or group on which an Investor Designee
serves as a director.
(f) If after the Closing, the Company takes corporate action
to classify the Board of Directors of the Company, the Investor Designees (if
the Investor is then entitled to designate two directors) shall be designated to
serve on different classes.
(g) So long as the Investor is entitled to designate at least
one member of the Board of Directors of the Company, during any period that the
requisite number of Investor Designees are not members of the Board of
Directors, the Company shall cause one person (to be designated by the Investor
in its sole discretion) to be permitted to attend all meetings of the Board of
Directors of the Company and all meetings of the Executive Committee of the
Company. The Company shall take all action necessary to ensure that (i) the
Investor is notified of all meetings of the Board of Directors in accordance
with and at the times prescribed by the notice provisions of the by-laws of the
Company applicable to directors of the Company and (ii) that the Investor is
furnished with all information and materials furnished to directors of the
Company in connection with any meetings of the Board of Directors or the
Executive Committee at the time such information and materials are furnished to
the directors.
2.2 Acquisition of Voting Securities.
--------------------------------
(a) Neither the Investor or any of its Affiliates shall,
directly or indirectly, in any manner, acquire any Company Voting Securities,
if, after giving effect to such acquisition, the Investor and its Affiliates
would beneficially own, in the aggregate, Company Voting Securities representing
more than the Initial Threshold; provided, however, that this Section 2.2 shall
not prohibit the acquisition by the Investor or any of its Affiliates of any
Company Voting Securities the acquisition of which would cause the Investor and
its Affiliates to beneficially own Company Voting Securities in excess of the
Initial Threshold if (i) such securities (x) are Family Shares, (y) are other
than Family Shares if the Investor is unable to exercise the right of first
offer set forth in Section 2 of the Family Agreement due to the restrictions set
forth in clause (ii) of this Section 2.2(a) without giving effect to the proviso
to such clause (ii) or (z) are purchased from Textron (provided that (1) the
number of Company Voting Securities purchased from Textron do not exceed
one-half of the Textron Shares and (2) the Investor or such Affiliate shall have
first offered to the Family Representatives, on behalf of the holders of the
Family Shares, a right to sell the same number of Company Voting Securities to
the Investor or such Affiliate on the same terms as those offered to Textron,
which offer shall not have been irrevocably accepted in full by each of the
Family Representatives, on behalf of all of the holders of the Family Shares,
within 15 business days after such notice is given to each of the Family
Representatives, which acceptance shall identify the selling holders of Family
Shares) and (ii) after giving effect to any such acquisition, the Investor and
its Affiliates would beneficially own Company Voting Securities representing not
more than 40% of the Outstanding Voting Power; provided, further, that,
notwithstanding the foregoing, the Investor and its Affiliates may acquire
Family Shares as would result in the Investor
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<PAGE>
and its Affiliates beneficially owning Company Voting Securities representing
more than 40% of the Outstanding Voting Power if the Investor or its Affiliates
first offer to purchase all of the issued and outstanding Company Voting
Securities at the price offered to be paid for such Family Shares pursuant to
either a tender offer to all holders of Company Voting Securities or a
definitive merger agreement (provided, that if the Company's Board of Directors
recommends that the holders of the Company Voting Securities accept such offer
and tender their shares, such offer shall be made pursuant to a definitive
merger agreement (or a tender offer followed by a merger) on the same terms).
(b) No provision contained in this Agreement shall require the
Investor or any of its Affiliates to dispose of any Company Voting Securities if
the aggregate percentage of the Outstanding Voting Power represented by Company
Voting Securities beneficially owned by the Investor and its Affiliates is
increased as a result of a recapitalization of the Company or a repurchase of
securities by the Company or any other action taken by the Company or any of its
Affiliates (other than the Investor or its Affiliates).
(c) The agreements of the Investor set forth in this Section
2.2 shall terminate on the seventh anniversary of the Closing and neither the
Investor nor any of its Affiliates shall have any further obligations or
liabilities hereunder or in respect hereof.
2.3 Exercise of Right of First Refusal. So long as the Investor
and its Affiliates have complied with the provisions of Section 2.2(a) hereof,
(a) the Company shall not exercise any of the rights set forth in Section 3.4 of
the Standstill Agreement with respect to any proposed sale or transfer of
Company Voting Securities by Textron or any of its Subsidiaries (as defined in
the Standstill Agreement) to the Investor or any of its Affiliates and (b) if
the Company receives notice of a proposed sale or transfer of the Textron Shares
to any Person other than the Investor or any of its Affiliates and if requested
in writing by the Investor, the Company shall take such actions as are within
its control to cause the Investor or an Affiliate thereof designated by the
Investor to be the Person designated by the Company to purchase such securities
in accordance with the provisions of Section 3.4(b) of the Standstill Agreement;
provided that any such request by the Investor shall be accompanied by evidence
reasonably satisfactory to the Company that any such sale or transfer to the
Investor or its Affiliates will comply with Section 2.2(a).
2.4 Sales of Company Voting Securities. During the period
commencing on the Closing and ending on the seventh anniversary thereof, neither
the Investor nor any of its Affiliates shall sell, transfer, assign or otherwise
dispose of ("Transfer") its beneficial interest in any Company Voting
Securities, except: (a) to the Company or to any Person approved in a resolution
adopted 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 Qualifying Tender
Offer; (d) pursuant to a bona fide underwritten public offering including a
public sale pursuant to a registration under the Registration Rights Agreement;
(e) pursuant to Rule 144 under the Securities Act; (f) to the Investor or an
Affiliate of the Investor, provided that such Affiliate shall expressly assume
in a writing duly executed by it and delivered to the Company all of the
obligations and restrictions contained in this Agreement pertaining to the
Investor and shall agree to transfer such Company Voting Securities to the
Investor or
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<PAGE>
another Affiliate of the Investor if such Affiliate ceases to be an Affiliate of
the Investor; (g) to Insurance Partners, L.P. or Insurance Partners Offshore
(Bermuda), L.P. or one or more Affiliates of either of them (each, an "IP
Entity" and collectively, the "IP Entities"), provided that (i) all voting
rights with respect to such Company Voting Securities are retained by the
Investor or an Affiliate thereof until the IP Entity holding such Company Voting
Securities Transfers such Company Voting Securities in accordance with this
Section 2.4 and (ii) each IP Entity acquiring such shares shall expressly assume
in a writing duly executed by it and delivered to the Company the obligations
and restrictions contained in this Section 2.4 pertaining to the Investor,
provided, further, that notwithstanding any provision of this Section 2.4 to the
contrary, with respect to the shares of Company Voting Securities (not to exceed
3,174,604 shares) acquired from the Investor by the IP Entities following the
acquisition of such shares by the Investor or an Affiliate of the Investor
pursuant to the Purchase Agreement (including any shares issued in respect of
any subdivision, split or dividend on such shares, the "Original IP Shares"),
(A) each IP Entity shall be permitted to Transfer its beneficial interest in
Original IP Shares free and clear of any restrictions or obligations contained
in this Section 2.4 if such Transfer is required pursuant to the terms of any of
the documents, instruments or agreements (the "Loan Documentation") entered into
in connection with the financing of the purchase by any of the IP Entities of
such Original IP Shares (a "Financing") and (B) nothing contained in this
Section 2.4 shall restrict the ability of any lender providing Financing from
exercising any remedies provided for in the Loan Documentation applicable to
such Financing, including, without limitation, Transferring any Original IP
Shares to which such Financing relates free and clear of any of the restrictions
and obligations contained in this Section 2.4; 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 Outstanding Voting
Power, the Investor shall give the Company the opportunity to purchase, or to
designate an alternative purchaser of, such Company Voting Securities in the
following manner:
(i) The proposed transferor of such Company Voting Securities
shall give to the Company written notice (the "Transfer Notice") of the
proposed transfer, specifying the proposed transferee, the number of
Company Voting Securities proposed to be disposed of, the proposed
consideration to be received in exchange therefor, and the other
material terms of the proposed transfer.
(ii) The Company shall have the right, exercisable by written
notice given to the Person which gave the Transfer Notice within seven
(7) business days after receipt of such Notice, to purchase (or to
cause another Person designated by the Company to purchase) all, but
not less than all, of the Company Voting Securities specified in such
Notice for cash at the purchase price set forth therein. If the
consideration specified in the Transfer Notice includes any property
other than cash, such purchase price shall be deemed to be the amount
of any cash included as part of such consideration plus the value (as
jointly determined by a nationally recognized investment banking firm
selected by each Party or, in the event such firms are unable to agree,
a third nationally recognized investment banking firm to be selected by
the first two such firms) of such other property included in such
consideration and the date on which the Company must exercise its right
of first refusal shall be extended until five (5) business days after
the determination of the value of property included in the
consideration.
-7-
<PAGE>
(iii) If the Company exercises its right of first refusal
hereunder, the closing of the purchase of the Company Voting Securities
with respect to which such right has been exercised shall take place
within five (5) business days after the Company gives notice of such
exercise; provided that if any approval of or notice to any
governmental authority or agency is required in connection with such
purchase of Company Voting Securities, the parties shall use all
reasonable efforts to obtain such approvals or to make such notices and
the closing shall take place within two (2) business days after receipt
of the last such approval and expiration of any required waiting
periods. If the Company does not exercise its right of first refusal
hereunder within the time specified for such exercise, the Person
giving the Transfer Notice shall be free during the period of six
months following the expiration of such time for exercise to sell the
Company Voting Securities specified in such Notice to any Person for
the consideration specified therein (or at any price in excess
thereof).
ARTICLE THREE
MISCELLANEOUS
-------------
3.1 Further Assurances. From time to time after the execution of
this Agreement, as and when requested by the Company and the Investor and to the
extent permitted by Delaware law, the Parties shall take or cause to be taken
such further or other action as shall be necessary to carry out the purposes of
this Agreement.
3.2 Effectiveness of Agreement. The respective rights and
obligations of the Parties under this Agreement shall arise from and after the
Closing.
3.3 Remedies. The Parties recognize and hereby acknowledge that it
may be difficult to accurately measure the amount of damages that would result
to a Party by reason of a failure of the other Party to perform any of the
obligations imposed on it by this Agreement. The Parties accordingly agree that
each such Party shall be entitled to an injunction to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, in addition to any
other remedies to which such Party may be entitled at law or in equity in
accordance with this Agreement.
3.4 Notices. Any notices or other communications required or
permitted under this Agreement shall be effective only if it is in writing and
delivered personally, by facsimile transmission, or by registered or certified
mail, postage pre-paid, addressed as follows:
The Company: Provident Companies, Inc.
1 Fountain Square
Chattanooga, Tennessee 37402
Telecopy: (423) 755-2590
Attention: Chief Financial Officer
Copy to Counsel: Alston & Bird
One Atlantic Center
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<PAGE>
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Telecopy: (404) 881-7777
Attention: F. Dean Copeland
The Investor: Zurich Insurance Company
Mythenquai 2
P.O. Box Ch-8022
Zurich, Switzerland
Telecopy: 011-411-205-1063
Attention: General Counsel
With Copies to: Zurich Center Resource Limited
One Chase Manhattan Plaza
New York, New York 10005
Telecopy: (212) 898-5002
Attention: General Counsel
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Telecopy: (212) 821-8111
Attention: Thomas M. Cerabino, Esq.
Family Stockholders: Hugh O. Maclellan, Jr.
Suite 501
Provident Building
One Fountain Square
Chattanooga, TN 37402
Telephone: (423)755-8141
Facsimile: (423)755-1640
A.S. MacMillan
Team Resources
Suite 425
River Edge One
5500 Interstate North Parkway
Atlanta, GA 30328
Telephone: (770)955-5135
Facsimile: (770)955-1602
Charlotte M. Heffner
3655 Randall Hall, NW
Atlanta, GA 30327
-9-
<PAGE>
Telephone and Facsimile: (404)233-7238
Kathrina H. Maclellan
125 Fairy Trail
Lookout Mountain, Tennessee 37350
With a Copy To: King & Spalding
120 West 45th Street
New York, NY 10036
Telephone: (212) 556-2100
Facsimile: (212) 556-2222
Attention: E. William Bates, II
or such other address as shall be furnished in writing by any of the
Parties. Any such notice or communication shall be deemed to have been given as
of the date so personally delivered or mailed.
3.5 Amendments. This Agreement may be amended by a subsequent
writing signed by both Parties upon the approval of each of the Parties.
3.6 Counterparts. This Agreement may be executed in two or more
counterparts all of which shall be one and the same Agreement and shall become
effective when one or more counterparts have been signed by each Party and
delivered to the other Party.
3.7 Headings. The headings in this Agreement are for convenience
only and shall not affect the construction or interpretation of this Agreement.
3.8 Successors and Assigns. All terms and conditions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by any successor to the Investor and any successor to the Company. Except as
otherwise provided in this Section 3.8, any assignment of the rights and
obligations of the Parties under this Agreement shall be effective upon a
written agreement signed by all the Parties.
3.9 Severability. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
3.10 Entire Agreement. This Agreement constitutes the entire
understanding between and among the Parties with respect to the subject matter
hereof and shall supersede any prior agreements and understandings among the
Parties with respect to such subject matter.
-10-
<PAGE>
3.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to conflicts of law principles thereof.
3.12 No Third Party Beneficiaries. Except for the Family
Representatives solely with respect to the provisions of Section 2.2 applicable
to the holders of Family Shares, this Agreement is not intended to confer upon
any Person any rights or remedies hereunder.
-11-
<PAGE>
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duly executed and delivered as of the date above written.
PROVIDENT COMPANIES, INC.
By: /s/ Thomas R. Watjen
Name: Thomas R. Watjen
Title: Executive Vice President
ZURICH INSURANCE COMPANY
By: /s/ Steven M. Gluckstern
Name: Steven M. Gluckstern
Title: Representative
-12-
<PAGE>
Exhibit 7
AMENDED AND RESTATED
FAMILY STOCKHOLDER AGREEMENT
AMENDED AND RESTATED AGREEMENT, dated as of May 31, 1996, with respect
to all of the agreements contained herein other than those set forth in Section
2, which shall be effective as of the Closing (as defined below) among ZURICH
INSURANCE COMPANY, a Swiss corporation ("Zurich"), THE MACLELLAN FOUNDATION,
INC., a Tennessee nonprofit corporation (the "Foundation"), and the stockholders
listed on Schedule A attached hereto (each, a "Stockholder" and collectively,
the "Stockholders"). Certain capitalized terms used herein are defined in
Section 1 hereof.
WHEREAS, on May 31, 1996 the parties hereto signed the original Family
Stockholder Agreement and such parties desire to amend and restate such
Agreement as of such date; and
WHEREAS, this Amended and Restated Family Stockholder Agreement is
being executed on November 27, 1996 as of the date first above written; and
WHEREAS, the Stockholders are the record owners of the number of shares
of common stock, par value $1.00 per share ("the Common Stock"), of Provident
Companies, Inc., a Delaware corporation (the "Company"), set forth opposite
their respective names on Schedule 3.4 hereto; and
WHEREAS, Zurich has heretofore entered into (i) an Amended and Restated
Common Stock Purchase Agreement, entered into as of November 27, 1996 and dated
as of May 31, 1996, with the Company (as the same may be amended or supplemented
from time to time, the "Stock Purchase Agreement") pursuant to which Zurich
agreed, among other things, to purchase 9,523,810 newly issued shares of Common
Stock (the "Shares") and (ii) an Amended and Restated Relationship Agreement,
entered into as of November 27, 1996 and dated as of May 31, 1996, with the
Company (as the same may be amended or supplemented from time to time, the
"Relationship Agreement") relating to, among other things, the ability of Zurich
to purchase additional shares of Common Stock;
WHEREAS, Zurich entered into the Relationship Agreement on the
condition that this Agreement is entered into; and
WHEREAS, it is a condition to the Closing (as defined in the Stock
Purchase Agreement) under the Stock Purchase Agreement that the parties enter
into this Agreement; and
<PAGE>
WHEREAS, the Stockholders are willing to grant to Zurich a right of
first offer with respect to shares of Common Stock owned by them on the terms
and conditions set forth herein in consideration of the agreements of Zurich
contained in the Stock Purchase Agreement and the Relationship Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereby agree as follows:
1. Definitions. The following terms when used in this Agreement shall
have the following meanings:
"Affiliate" means, with respect to a person, any corporation
or other entity in which such person has a direct or indirect controlling
interest or by which such person is directly or indirectly controlled or which
is under direct or indirect common control with such person.
"Business Day" means any day which is not a Saturday or a Sunday, or a
day on which banks in the State of New York are authorized or required to close.
"Change of Control Transaction" means any of the following:
(i) A tender or exchange offer by any person, entity or group for
fifty percent (50%) or more of the outstanding voting securities of the Company;
or
(ii) any merger or consolidation with or into another person in a
transaction that would result in a reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock.
"First Offer Shares" mean (i) all of the shares of Common Stock owned
by any of the Stockholders on the date hereof, together with any shares of
Common Stock hereafter acquired by any of the Stockholders, (ii) any shares of
Common Stock issued in respect of any subdivision, split or dividend on the
shares of Common Stock described in subparagraph (i), and (iii) in the event the
Company at any time shall be a party to a merger, consolidation, sale of all or
substantially all of the Company's assets, liquidation or recapitalization of
the Common Stock in which the previously outstanding Common Stock shall be
changed into or exchanged for different securities of the Company or common
stock or other securities of another corporation or interests in a noncorporate
entity (collectively, "Other Securities"), any such Other Securities received in
respect of such shares of Common Stock.
"Lien or Other Encumbrance" means any lien, pledge, mortgage, security
interest, claim, lease, charge, option, right
2
<PAGE>
of first refusal, easement, servitude, transfer restriction under any
shareholder or similar agreement.
"Permitted Sale" means any sale of at least 70% of the First Offer
Shares then beneficially owned by all Stockholders pursuant to a firm commitment
underwritten registration under the Securities Act.
2. Right of First Offer.
--------------------
2.1. Grant of Right; Exercise. Except as provided in Section
2.3(b) below, during the period commencing on the Closing Date (as defined in
the Stock Purchase Agreement) and ending at the earlier of (i) such time as
Zurich and its Affiliates beneficially own (as defined below) less than 5% of
the outstanding Company Voting Securities (as defined in the Relationship
Agreement) and (ii) the termination of the provisions of Section 2.2 of the
Relationship Agreement (the "Offer Term"), prior to making any sale or transfer
(whether for cash or other consideration) of the First Offer Shares, the
Stockholders shall, in each instance, give Zurich the right to purchase such
First Offer Shares in the following manner:
(a) If at any time, any Stockholder holding First Offer Shares (the
"Offeror") intends to sell or transfer any or all of such First Offer Shares,
then the Offeror shall give notice (the "First Offer Notice") to Zurich of such
intention. The First Offer Notice shall specify (i) the number of First Offer
Shares intended to be sold or transferred (the "Offered Securities"), and (ii)
the proposed purchase price per share to be received for the Offered Securities
(the "First Offer Price").
(b) Within five (5) Business Days (or fifteen (15) Business Days in the
event that any proposed sale or transfer of First Offer Shares would, if
purchased by Zurich or one of its Affiliates, cause Zurich and its Affiliates to
beneficially own (as defined in the Relationship Agreement) Company Voting
Securities (as defined in the Relationship Agreement) representing more than 40%
of the Outstanding Voting Power (as defined in the Relationship Agreement))
following the delivery of the First Offer Notice, Zurich may, by written notice
to the Offeror, either (i) agree to purchase all, but not less than all of the
Offered Securities for the First Offer Price and otherwise pursuant to the terms
set forth in the First Offer Notice (any such notice accepting the terms set
forth in the First Offer Notice, an "Acceptance Notice"), which notice shall
specify a date for the closing of the purchase and sale which shall be not
earlier than five (5) days nor later than twenty (20) days after the later of
the giving of such notice or the receipt of all required consents and approvals
or (ii) inform the applicable Stockholder that it does not wish to purchase the
Offered
3
<PAGE>
Securities. Following delivery of an Acceptance Notice in accordance with this
clause (b), Zurich and the applicable Stockholders agree to use all commercially
reasonable efforts to obtain all required consents and approvals as promptly as
practicable.
2.2. Delivery of First Offer Shares; Payment. If Zurich provides
the Offeror with an Acceptance Notice, the closing of the purchase of the
Offered Securities pursuant to Section 2.1 shall take place at the location and
on the date specified in the Acceptance Notice. At such closing, Zurich shall
deliver to the Offeror, against (i) delivery of certificates representing the
Offered Securities being acquired by Zurich (duly endorsed for transfer or
accompanied by stock powers executed in blank) and (ii) evidence that all stock
transfer and other taxes required to be paid in connection with the sale and
delivery to Zurich of such shares have been paid, an amount equal to the number
of Offered Securities being sold by such person multiplied by the First Offer
Price by wire transfer of immediately available funds to such account or
accounts of the applicable Stockholders as such Stockholders shall designate to
Zurich, in the manner specified herein for the delivery of notices, not less
than two Business Days prior to the closing of the purchase of the Offered
Securities. All First Offer Shares sold to Zurich pursuant to this Agreement
shall be delivered free and clear of all Liens or Other Encumbrances.
2.3. Permitted Third Party Offers; Excluded Shares. (a) If Zurich
has rejected the terms of the Offer set forth in the First Offer Notice by
notice in writing to the Offeror or has not delivered an Acceptance Notice prior
to expiration of the five Business Day (or fifteen Business Day, as applicable)
period following delivery of the First Offer Notice, then for a period of six
(6) months from the earlier of the expiration of such five Business Day (or
fifteen Business Day, as applicable) period or the date Zurich notifies the
applicable Stockholder of its decision not to purchase the Offered Securities
(the "Third Party Offer Period"), the Offeror may sell or transfer (or cause to
be sold or transferred) the Offered Securities to a party or parties other than
Zurich for a purchase price at least equal to the First Offer Price multiplied
by the number of Offered Securities. Upon termination of the Third Party Offer
Period, the Offeror must again comply with the provisions of this Section 2
before it can sell or transfer (or cause to be sold or transferred) the Offered
Securities.
(b) Notwithstanding any other provision of this Section 2, the right of
first offer set forth in this Section 2 shall not apply to any sale or transfer
of First Offer Shares (w) pursuant to a Change of Control Transaction, (x) that
is a Permitted Sale, (y) to any sale or transfer between or among the
4
<PAGE>
Stockholders or to the immediate family members or the estate of any Stockholder
(including, without limitation, any sale or transfer by any such Stockholder to
or among any trust, foundation, custodial or other similar accounts or funds in
which such Stockholder or other member of his immediate family serves as
trustee, custodian or a similar fiduciary capacity or to a trust created by any
Stockholder which has a member of his immediate family as a beneficiary)
pursuant to a bona fide gift; provided that any transferee under this clause (y)
shall receive and hold the shares of Common Stock so transferred subject to the
terms and provisions of this Agreement and shall be deemed a Stockholder for
purposes hereof or (z) that is a transfer to any organization that qualifies for
federal income tax charitable deduction at the time of such transfer; provided
that the proviso set forth in clause (y) above shall apply to any transfer to
any such organization that would also be covered by clause (y) above. For the
purpose of this Agreement, the term "immediate family" shall have the meaning
specified in Rule 16a-1 promulgated under the Securities Exchange Act of 1934,
as amended.
2.4. Release from Right of First Offer. Upon any permitted sale or
transfer (except as provided in 2.3(b)(y)) by the Stockholders under this
Section 2, the shares of Common Stock which are the subject of such sale shall
be released from the terms of this Section 2 and shall no longer be deemed to be
First Offer Shares.
3. Representations and Warranties of the Stockholders. Each of the
Stockholders represents and warrants, severally and not jointly, to Zurich as
follows:
3.1. Authority of the Stockholders. The Foundation is a nonprofit
corporation duly organized and validly existing under the laws of the State of
Tennessee. Each of the Stockholders has all requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby; the execution, delivery and
performance of this Agreement by the Stockholders will not violate any agreement
or instrument to which any Stockholder is a party.
3.2. Execution and Delivery. This Agreement has been duly executed
and delivered by each of the Stockholders and constitutes the valid and binding
obligation of each of the Stockholders enforceable against each of them in
accordance with its terms.
3.3. Consents and Approvals. The execution and delivery by the
Stockholders of this Agreement, the performance by the Stockholders of their
obligations hereunder and the consummation by the Stockholders of the
transactions contemplated
5
<PAGE>
hereby do not require any of the Stockholders to obtain any consent, approval or
action of, or make any filing with or give any notice to, any corporation,
person or firm or any public, governmental or judicial authority except (a) as
set forth in Schedule 3.3; (b) such as have been duly obtained or made, as the
case may be, and are in full force and effect on the date hereof; (c) any
required filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, or under federal or state securities laws or state insurance company
or holding company laws; and (d) those which, if not obtained, would not impair
(i) Zurich's ability to own, possess or exercise the rights of an owner with
respect to the First Offer Shares following the acquisition thereof or (ii) any
of the other rights of Zurich thereunder.
3.4. Title to Shares. Except for the rights granted to Zurich
under this Agreement, each of the Stockholders owns beneficially and of record,
and has full power and authority to convey, free and clear of any Lien or Other
Encumbrance, the number of shares of Common Stock set forth opposite the name of
such Stockholder in Schedule 3.4 (collectively, the "Stockholder Shares") and,
upon delivery of and payment for any such Stockholder Shares as herein provided,
Zurich will acquire good title thereto, free and clear of any Lien or Other
Encumbrance.
3.5. Options or Other Rights. Except for the rights granted Zurich
under this Agreement, there is no outstanding right, subscription, warrant,
call, unsatisfied preemptive right, option or other agreement of any kind to
purchase or otherwise to receive from any Stockholder any of the Stockholder
Shares.
4. Voting of Company Voting Securities. Each of the Stockholders
identified on the signature pages hereto under the heading "Voting Stockholders"
shall effect such action as may be necessary to ensure that:
(a) subject to the receipt of proper notice and the absence of a
preliminary or permanent injunction or other final order of any United Stated
Federal or state court barring such action, such Stockholder is, as a
shareholder, present in person or represented by proxy at all shareholder
meetings of the Company relating to the matters referred to in clause (b) below
so that all shares of Company Voting Securities which such Stockholder
beneficially owns are voted and deemed to be present, in person or by proxy, at
all meetings of the shareholders of the Company relating to the matters referred
to in clause (b) below so that all Company Voting Securities so beneficially
owned may be counted for the purpose of determining the presence of a quorum at
such meetings; and
6
<PAGE>
(b) all Company Voting Securities that are beneficially owned by such
Stockholder as of the appropriate record date are voted in favor of (i) the
Merger and the Merger Agreement (each, as defined in the Stock Purchase
Agreement) and the transactions contemplated thereby, including the Charter
Amendment and (ii) the transactions contemplated by the Stock Purchase
Agreement, including, without limitation, the issuance and sale of the Shares to
Zurich.
5. Miscellaneous.
-------------
5.1. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by overnight
courier or by certified, registered or express mail, postage prepaid. Any such
notice shall be deemed received when so delivered personally, telegraphed,
telexed or sent by facsimile transmission or, if sent by overnight courier, one
day after delivered to the courier or, if mailed, two days after the date of
deposit in the United States mails, as follows:
(i) If to Zurich to:
Zurich Insurance Company
Mythenquai 2
P.O. Box Ch-8022
Zurich, Switzerland
Fax No.: 011 411 202 1063
Attention: General Counsel
with copies to:
Zurich Center Resource Limited
One Chase Manhattan Plaza
New York, New York 10005
Fax No.: (212) 898-5002
Attention: General Counsel
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Fax No.: (212) 821-8111
Attention: Thomas M. Cerabino, Esq.
(ii) If to the Stockholders, to:
Hugh O. Maclellan, Jr.
Suite 501
7
<PAGE>
Provident Building
One Fountain Square
Chattanooga, TN 37402
Telephone: (423)755-8141
Facsimile: (423)755-1640
A.S. MacMillan
Team Resources
Suite 425
River Edge One
5500 Interstate North Parkway
Atlanta, GA 30328
Telephone: (770)955-5135
Facsimile: (770)955-1602
Charlotte M. Heffner
3655 Randall Hall, NW
Atlanta, GA 30327
Telephone and Facsimile: (404)233-7238
Kathrina H. Maclellan
125 Fairy Trail
Lookout Mountain, Tennessee 37350
with a copy to:
King & Spalding
120 West 45th Street
New York, NY 10036
Telephone: (212) 556-2100
Facsimile: (212) 556-2222
Attention: E. William Bates, II
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
5.2. Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof, and
supersedes all prior agreements, written or oral, with respect thereto.
5.3. Waivers and Amendments. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the parties or, in the case of a waiver,
by the party waiving compliance. Any right, waiver, amendment, consent or
acknowledgment exercised or exercisable by the Stockholders may be exercised by
Hugh O. Maclellan, Jr., Charlotte M. Heffner, Kathrina H. Maclellan and the
Foundation (such Stockholders,
8
<PAGE>
together with any successors designated by them with notice to Zurich, the
"Consenting Stockholders"), acting unanimously together, on behalf of themselves
and the other Stockholders; and any right, waiver, amendment, consent or
acknowledgment so exercised by the Consenting Stockholders shall be equally
binding upon the other Stockholders. Notwithstanding the immediately preceding
sentence, no amendment to this Agreement that is approved by the Consenting
Stockholders shall be binding on any other Stockholder, without such
Stockholder's approval, if such amendment would place any additional
restrictions on such Stockholder's ability to sell or transfer his shares of
Common Stock. No delay on the part of any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any waiver
on the part of any party of any such right, power or privilege, nor any single
or partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
The rights and remedies herein provided are cumulative and are not exclusive of
any rights or remedies that any party may otherwise have at law or in equity.
5.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to conflicts of laws principles thereof.
5.5. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns
and legal representatives.
5.6. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the parties
hereto.
5.7. Headings. The headings in this Agreement are for reference
only, and shall not affect the interpretation of this Agreement.
5.8. Further Assurances. Each of the parties shall execute such
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby.
5.9. Consent to Jurisdiction. Each of the parties hereby
irrevocably submits to the jurisdiction of any New
9
<PAGE>
York State or Federal court sitting in the City of New York in any action or
proceeding arising out of or relating to this Agreement and hereby irrevocably
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or Federal court. Each of the parties
hereby irrevocably agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or Federal court.
Zurich hereby irrevocably appoints the General Counsel of Zurich Center ReSource
Limited (the "Process Agent"), with an office on the date hereof at Zurich
Center ReSource Limited, One Chase Manhattan Plaza, New York, New York 10005, as
its agent to receive on behalf of Zurich and its property service of copies of
the summons and complaint and any other process which may be served in any such
action or proceeding. Each of the Stockholders hereby irrevocably appoints E.
William Bates, II (the "Stockholder Process Agent"), with an office on the date
hereof at King & Spaulding, 120 West 45th Street, New York, New York 10036, as
their agent to receive on behalf of the Stockholders and their respective
property service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding. Such service may be made
by mailing or delivering a copy of such process to Zurich or the Stockholders,
as the case may be, in care of the Process Agent or Stockholder Process Agent,
as the case may be, at such agent's above address, and Zurich and the
Stockholders hereby irrevocably authorize and direct the Process Agent or
Stockholder Process Agent, as the case may be, to accept such service on behalf
of such party. As an alternative method of service, each of the parties also
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to such party at its address
specified in Section 5.1. Each of the parties agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ZURICH INSURANCE COMPANY
By:/s/ Steven M. Gluckstern
Steven M. Gluckstern
Representative
VOTING STOCKHOLDERS:
-------------------
/s/ Hugh O. Maclellan, Jr.
Hugh O. Maclellan, Jr.
/s/ Kathrina H. Maclellan
Kathrina H. Maclellan
/s/ Charlotte M. Heffner
Charlotte M. Heffner
THE MACLELLAN FOUNDATION, INC.
By: /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: President
11
<PAGE>
THE R.J. MACLELLAN TRUST FOR THE MACLELLAN
FOUNDATION, INC.
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
THE HELEN M. TIPTON CHARITABLE TRUST
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: President
THE R.J. MACLELLAN TRUST FOR THE
R.L. MACLELLAN FAMILY (#2151)
By /s/ Kathrina H. Maclellan_
Name: Kathrina H. Maclellan
Title: Trustee
By /s/ Robert H. Maclellan
Name: Robert H. Maclellan
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
By /s/ Dudley Porter, Jr.
Name: Dudley Porter, Jr.
Title: Trustee
<PAGE>
THE CORA L. MACLELLAN TRUST FOR THE
R.L. MACLELLAN FAMILY (#2155)
By /s/ Kathrina H. Maclellan
Name: Kathrina H. Maclellan
Title: Trustee
By /s/ Robert H. Maclellan
Name: Robert H. Maclellan
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
By /s/ Dudley Porter, Jr.
Name: Dudley Porter, Jr.
Title: Trustee
<PAGE>
THE R.J. MACLELLAN TRUST FOR THE H.O.
MACLELLAN, SR. FAMILY (#2152)
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
By /s/ Thomas H. McCallie, III
Name: Thomas H. McCallie, III
Title: Trustee
<PAGE>
THE CORA L. MACLELLAN TRUST FOR THE
H.O. MACLELLAN, SR. FAMILY (#2156)
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner.
Name: Charlotte M. Heffner
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
By /s/ Thomas H. McCallie, III
Name: Thomas H. McCallie, III
Title: Trustee
<PAGE>
STOCKHOLDERS:
THE R.J. MACLELLAN TRUST FOR THE
R.L. MACLELLAN FAMILY TRUST
(#215109)
By /s/ Kathrina H. Maclellan.
Name: Kathrina H. Maclellan
Title: Trustee
By /s/ Robert H. Maclellan
Name: Robert H. Maclellan
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
By /s/ Dudley Porter, Jr.
Name: Dudley Porter, Jr.
Title: Trustee
<PAGE>
THE CORA L. MACLELLAN TRUST FOR
THE R.L. MACLELLAN FAMILY (#215509)
By /s/ Kathrina H. Maclellan.
Name: Kathrina H. Maclellan
Title: Trustee
By /s/ Robert H. Maclellan
Name: Robert H. Maclellan
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
By /s/ Dudley Porter, Jr.
Name: Dudley Porter, Jr.
Title: Trustee
<PAGE>
THE CORA L. MACLELLAN TRUST FOR
THE H.O. MACLELLAN, SR. FAMILY
(#215609)
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner.
Name: Charlotte M. Heffner
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
By /s/ Thomas H. McCallie, III
Name: Thomas H. McCallie, III
Title: Trustee
<PAGE>
THE CORA L. MACLELLAN TRUST FOR
THE MACLELLAN FOUNDATION INC.
(#2154)
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
<PAGE>
CHRISTIAN EDUCATION CHARITABLE
TRUST
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
<PAGE>
THE HUGH AND CHARLOTTE
MACLELLAN CHARITABLE TRUST
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By /s/ Henry A. Henegar
Name: Henry A. Henegar
Title: Trustee
By /s/ Lee S. Anderson
Name: Lee S. Anderson.
Title: Trustee
By /s/ Frank A. Brock
Name: Frank A. Brock
Title: Trustee
By /s/ John C. Stophel
Name: John C. Stophel
Title: Trustee
<PAGE>
ESTATE OF HUGH O. MACLELLAN, SR.
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Executor
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Executor
By /s/ A.S. MacMillan
Name: A.S. MacMillan
Title: Executor
/s/ Hugh O. Maclellan
Charlotte F. Maclellan
By Hugh O. Maclellan, Jr.,
Attorney-in-fact
<PAGE>
TRUST OF C.F. MACLELLAN DATED 6/2/52
FOR THE PRIMARY BENEFIT OF
CHARLOTTE M. HEFFNER
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By U.S. Trust Company of Florida,
Trustee
By /s/ Howard E.N. Wilson
Name: Howard E.N. Wilson
Title: Regional President
TRUST OF C.F. MACLELLAN DATED 6/2/52
FOR H.O. MACLELLAN, JR.
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
<PAGE>
TRUST OF H.O. MACLELLAN, SR. FOR
THE BENEFIT OF GREAT
GRANDCHILDREN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
<PAGE>
TRUST UNDER THE WILL OF ANNE
MACLELLAN MUNFORD (CEDE & CO.)
By /s/ Kathrina H. Maclellan
Name: Kathrina H. Maclellan
Title: Trustee
By U.S. Trust Company of Florida,
Trustee
By /s/ Howard E.N. Wilson
Name: Howard E.N. Wilson
Title: Regional President
THE CHARITABLE REMAINDER UNITRUST
OF KATHRINA H. MACLELLAN 8/11/76
By U.S. Trust Company of Florida,
Trustee
By /s/ Sandra T. Cargill
Name: Sandra T. Cargill
Title: Senior Vice President
<PAGE>
TRUST UAW ROBERT HOWZE
MACLELLAN DATED 9/22/88
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
<PAGE>
TRUST UAW ROBERT H. MACLELLAN FOR
HEATHER HOWZE MACLELLAN
By /s/ Joseph F. Decosimo
Name: Joseph F. Decosimo
Title: Trustee
By /s/ J. Nelson Irvine
Name: J. Nelson Irvine
Title: Trustee
TRUST UAW ROBERT H. MACLELLAN FOR
IVAN LLEWELLYN MACLELLAN
By /s/ Joseph F. Decosimo
Name: Joseph F. Decosimo
Title: Trustee
By /s/ J. Nelson Irvine
Name: J. Nelson Irvine
Title: Trustee
<PAGE>
THE TRUST FOR R.L. MACLELLAN AND
K.H. MACLELLAN FOUNDATION U/A FOR
MRES. KATHRINA H. MACLELLAN DATED
1/4/73
By /s/ Kathrina H. Maclellan
Name: Kathrina H. Maclellan
Title: Trustee
By /s/ Joseph F. Decosimo
Name: Joseph F. Decosimo
Title: Trustee
By /s/ Douglas Daugherty
Name: Douglas Daugherty
Title: Trustee
By /s/ Lee S. Anderson
Name: Lee S. Anderson.
Title: Trustee
By /s/ Richard L. Heffner
Name: Richard L. Heffner
Title: Trustee
By /s/ Robert H. Maclellan
Name: Robert H. Maclellan
Title: Trustee
By /s/ Thomas H. McCallie, III
Name: Thomas H. McCallie, III
Title: Trustee
<PAGE>
THE SECOND CHARITABLE REMAINDER
UNITRUST OF K.H. MACLELLAN DATED
12/17/81
By /s/ Kathrina H. Maclellan
Name: Kathrina H. Maclellan
Title: Trustee
By U.S. Trust Company of New York,
Trustee
By /s/ Sandra T. Cargill
Name: Sandra T. Cargill
Title: Senior Vice President
<PAGE>
TRUST U/A HUGH O. MACLELLAN DATED
12/8/48 FOR HUGH O. MACLELLAN, JR.
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By SunTrust Bank, Chattanooga N.A
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
TRUST U/A HUGO O. MACLELLAN, SR.
DATED 11/19/66 FOR THE BENEFIT OF
CATHERINE H. MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
<PAGE>
TRUST U/A HUGH O. MACLELLAN, SR.
DATED 7/8/68 FOR THE BENEFIT OF
DANIEL O. MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
TRUST U/A HUGH O. MACLELLAN, SR.
DATED 3/12/64 FOR THE BENEFIT OF
CHRISTOPHER H. MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
H.O. MACLELLAN, JR. AND SUNTRUST
BANK TRUSTEES U/A H.O. MACLELLAN,
SR. FOR THE BENEFIT OF CATHERINE H.
MACLELLAN AND HER DESCENDANTS
DATED 5/29/70 (#4629)
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
<PAGE>
H.O. MACLELLAN, JR. AND SUNTRUST
BANK TRUSTEES U/A H.O. MACLELLAN,
SR. FOR THE BENEFIT OF DANIEL O.
MACLELLAN AND HIS DESCENDANTS
DATED 5/29/70 (#4630)
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
H.O. MACLELLAN, JR. AND SUNTRUST
BANK TRUSTEES U/A H.O. MACLELLAN,
SR. FOR THE BENEFIT OF CHRISTOPHER
H. MACLELLAN AND HIS DESCENDANTS
DATED 5/29/70 (#4631)
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title:Trustee
By SunTrust Bank, Chattanooga N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr. Trust Officer
<PAGE>
IRREVOCABLE INSURANCE TRUST OF
HUGH O. MACLELLAN, SR. DATED 1/31/67
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
THE H.O. MACLELLAN, SR. CHARITABLE
INC. TRUST DATED 11/29/83 FOR THE
BENEFIT OF ELIZABETH MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Hugh O. Maclellan, Jr.
Name: Charlotte M. Heffner
Title: Trustee
By Hugh O. Maclellan, Jr.,
Attorney-in-fact
By /s/ Lee S. Anderson
Name: Lee S. Anderson.
Title: Trustee
By /s/ John C. Stophel
Name: John C. Stophel
Title: Trustee
<PAGE>
CHARITABLE INCOME (LEAD) TRUST U/A
HUGH O. MACLELLAN, SR. DATED
12/31/76 FOR THE BENEFIT OF
CHRISTOPHER H. MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By /s/ Lee S. Anderson
Name: Lee S. Anderson.
Title: Trustee
By /s/ John C. Stophel
Name: John C. Stophel
Title: Trustee
<PAGE>
CHARITABLE INCOME (LEAD) TRUST U/A
H.O. MACLELLAN, SR. DATED 12/31/76
FOR THE BENEFIT OF CATHERINE H.
MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By /s/ Lee S. Anderson
Name: Lee S. Anderson.
Title: Trustee
By /s/ John C. Stophel
Name: John C. Stophel
Title: Trustee
<PAGE>
CHARITABLE INCOME (LEAD) TRUST U/A
H.O. MACLELLAN, SR. DATED 12/31/76
FOR THE BENEFIT OF DANIEL O.
MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title:Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By /s/ Lee S. Anderson
Name: Lee S. Anderson.
Title: Trustee
By /s/ John C. Stophel
Name: John C. Stophel
Title: Trustee
<PAGE>
CHARITABLE INCOME (LEAD) TR U/A
H.O. MACLELLAN, SR. DATED 12/31/76
FOR THE BENEFIT OF ELIZABETH
MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title:Trustee
By /s/ Lee S. Anderson
Name: Lee S. Anderson.
Title: Trustee
By /s/ John C. Stophel
Name: John C. Stophel
Title: Trustee
<PAGE>
IRREVOCABLE TRUST U/A NANCY B.
MACLELLAN DATED 12/15/83 FOR THE
BENEFIT OF ELIZABETH MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
HUGH O. MACLELLAN, JR. CUSTODIAN
FOR ELIZABETH MACLELLAN
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
<PAGE>
/s/ Christopher Hugh Maclellan
Christopher Hugh Maclellan
CHRISTOPHER HUGH MACLELLAN
CUSTODIAN FOR MORGAN CHRISTOPHER
MACLELLAN
By /s/ Christopher H. Maclellan
Name: Christopher H. Maclellan
Title: Custodian
CHRISTOPHER HUGH MACLELLAN
CUSTODIAN FOR HUGH MACLELLAN III
By /s/ Christopher H. Maclellan
Name: Christopher H. Maclellan
Title: Custodian
CHRISTOPHER HUGH MACLELLAN
CUSTODIAN FOR ROBERT BROWNE
MACLELLAN
<PAGE>
By /s/ Christopher H. Maclellan
Name: Christopher H. Maclellan
Title: Custodian
/s/ Susan Maclellan
Susan Maclellan
/s/ Daniel Owen Maclellan
Daniel Owen Maclellan
<PAGE>
DANIEL O. MACLELLAN CUSTODIAN FOR
JACQUELINE HANNAH MACLELLAN
By /s/ Daniel O. Maclellan
Name: Daniel O. Maclellan
Title: Custodian
/s/ Leslie Stophel Maclellan
Leslie Stophel Maclellan
<PAGE>
/s/ Catherine Maclellan Heald
Catherine Maclellan Heald
CATHERINE MACLELLAN HEALD
CUSTODIAN FOR FRANCES ANNE HEALD
By /s/ Catherine Maclellan Heald
Name: Catherine Maclellan Heald
Title: Custodian
CATHERINE MACLELLAN HEALD
CUSTODIAN FOR HALLIE ELIZABETH HEALD
By /s/ Catherine Maclellan Heald
Name: Catherine Maclellan Heald
Title: Custodian
CATHERINE MACLELLAN HEALD
CUSTODIAN FOR HAMILTON REED HEALD
By /s/ Catherine Maclellan Heald
Name: Catherine Maclellan Heald
Title: Custodian
/s/ Daryl Heald
Daryl Heald
/s/ Nancy Browne Maclellan
Nancy Browne Maclellan
<PAGE>
TRUST OF HUGH O. MACLELLAN, JR.
DATED 1/31/67 FOR THE BENEFIT OF THE
CHILDREN
By /s/ Nancy Browne Maclellan
Name: Nancy Browne Maclellan
Title: Trustee
<PAGE>
H.O. MACLELLAN SENIOR TRUST DATED
9/8/72 FOR THE BENEFIT OF RICHARD L.
HEFFNER, JR.
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By NationsBank,
Trustee
By /s/ Larry D. Putnam
Name: Larry D. Putnam
Title: Executive Vice
President-Trust
H.O. MACLELLAN SENIOR TRUST DATED
9/8/72 FOR THE BENEFIT OF THOMAS M.
HEFFNER
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: rustee
By NationsBank,
Trustee
By /s/ Larry D. Putnam
Name: Larry D. Putnam
Title: Executive Vice
President-Trust
<PAGE>
CHARITABLE INCOME (LEAD) TRUST U/A
H.O. MACLELLAN SENIOR TRUST DATED
12/31/76 FOR THE BENEFIT OF
RICHARD L. HEFFNER, JR.
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title: Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By /s/ Lee S. Anderson
Name: Lee S. Anderson
Title: Trustee
By /s/ John C. Stophel
Name: John C. Stophel
Title: Trustee
<PAGE>
CHARITABLE INCOME (LEAD) TRUST U/A
H.O. MACLELLAN SENIOR TRUST DATED
12/31/76 FOR THE BENEFIT OF
THOMAS MACLELLAN HEFFNER
By /s/ Hugh O. Maclellan, Jr.
Name: Hugh O. Maclellan, Jr.
Title:Trustee
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By /s/ Lee S. Anderson
Name: Lee S. Anderson
Title: Trustee
By /s/ John C. Stophel
Name: John C. Stophel
Title: Trustee
<PAGE>
TRUST U/A H.O. MACLELLAN SENIOR
DATED 12/9/48 FOR THE BENEFIT
OF CHARLOTTE M. HEFFNER
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By SunTrust Bank, Chattanooga, N.A.,
Trustee
By /s/ Richard Stewart
Name: Richard Stewart
Title: V.P. & Sr.Trust
Officer
<PAGE>
CHARLOTTE M. HEFFNER AND RICHARD L.
HEFFNER, SR. TRUSTEES FOR THE BENEFIT
OF RICHARD L. HEFFNER, SR.
DATED 1/26/96
By /s/ Charlotte M. Heffner
Name: Charlotte M. Heffner
Title: Trustee
By /s/ Richard L. Heffner, Sr.
Name: Richard L. Heffner, Sr.
Title: Trustee
/s/ Richard L. Heffner, Sr.
IRREVOCABLE TRUST DATED 12/3/64 OF
H.O. MACLELLAN, SR. FOR THE BENEFIT
OF THOMAS MACLELLAN HEFFNER
By /s/ Richard L. Heffner, Sr.
Name: Richard L. Heffner, Sr.
Title: Trustee
IRREVOCABLE TRUST DATED 6/1/62 OF
H.O. MACLELLAN, SR. FOR THE BENEFIT
OF RICHARD L. HEFFNER, JR.
By /s/ Richard L. Heffner, Sr.
Name: Richard L. Heffner, Sr.
Title: Trustee
<PAGE>
/s/ Richard L. Heffner, Sr.
Richard L. Heffner, Sr.
/s/ Christina M. Heffner
Christina M. Heffner
<PAGE>
/s/ Thomas Maclellan Heffner
Thomas Maclellan Heffner
<PAGE>
/s/ Jean B. Tipton
Jean B. Tipton
<PAGE>
<TABLE>
SCHEDULE A
----------
<CAPTION>
- --------------------------------------------------------------------------------------- -----------------------------
SHARES OWNED
AS OF
FAMILY SHAREHOLDERS 3/4/96
- --------------------------------------------------------------------------------------- -----------------------------
<S> <C>
Suntrust Trust, D. Porter Jr., K.H. Maclellan & R.H. Maclellan, TTEES UAW R.J.
Maclellan for R.L. Maclellan Family Trust (#2151) 538,345
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, D. Porter Jr., K.H. Maclellan & R.H. Maclellan, TTEES UAW R.J.
Maclellan for R.L. Maclellan Family Trust Inv. Inc. (#215109)
116,425
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, H.O. Maclellan Jr., C.M. Heffner & T.H. McCallie III, TTEES UAW R.J.
Maclellan Tr. for H.O. Maclellan Sr. Fam. (#2152) 522,615
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, H.O. Maclellan Jr., C.M. Heffner & T.H. McCallie III, TTEES UAW R.J.
Maclellan Tr. for H.O. Maclellan Sr. Fam. Inv. Inc. (#215209)
120,675
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, D. Porter Jr., K.H. Maclellan & R.H. Maclellan, TTEES UAW Cora L.
Maclellan Tr. For R.L. Maclellan Fam. (#2155) 535,820
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, D. Porter Jr., K.H. Maclellan & R.H. Maclellan, TTEES UAW Cora L.
Maclellan Tr. For R.L. Maclellan Fam. Inv. Inc. (#215509) 97,520
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, H.O. Maclellan Jr., C.M. Heffner & T.H. McCallie III, TTEES UAW Cora
L. Maclellan for H.O. Maclellan Sr. Fam. Tr. (#2156)
518,695
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, H.O. Maclellan Jr., C.M. Heffner & T.H. McCallie III, TTEES UAW Cora
L. Maclellan for H.O. Maclellan Sr. Fam. Tr. Inv. Inc. (#215609)
91,110
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, H.O. Maclellan Jr., D. Porter Jr. & K.H. Maclellan, TTEES for R.J.
Maclellan Trust for the Maclellan Foundation Inc. (#2150)
3,470,123
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, H.O. Maclellan Jr., D. Porter Jr. & K.H. Maclellan, TTEES for Cora L.
Maclellan Trust for the Maclellan Foundation Inc. (#2154)
34,538
- --------------------------------------------------------------------------------------- -----------------------------
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. Anderson, Frank A. Brock
TTEES U/A Dtd 4/23/93, Hugh & Charlotte Maclellan Charitable Trust
392,706
- --------------------------------------------------------------------------------------- -----------------------------
Helen M. Tipton Charitable Trust 1,565,842
- --------------------------------------------------------------------------------------- -----------------------------
<PAGE>
- --------------------------------------------------------------------------------------- -----------------------------
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 Dtd 8/2/52 with C.F.
Maclellan for the Primary Benefit of Charlotte M. Heffner
67,200
- --------------------------------------------------------------------------------------- -----------------------------
J.P. Gaither, H.O. Maclellan Jr. & C.M. Heffner, TTEES UTA Dtd 6/2/52 with C.F.
Maclellan for H.O. Maclellan Jr. 69,200
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. & Charlotte M. Heffner Co-TTEES U/A H.O. Maclellan Sr. FBO
Great-grandchildren 60,000
- --------------------------------------------------------------------------------------- -----------------------------
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 with Kathrina H.
Maclellan Dtd 8/5/76 2,000
- --------------------------------------------------------------------------------------- -----------------------------
US Trust Company as Corporate TTEE Charitable Remainder Unitrust of Kathrina H.
Maclellan 8/11/76 50,000
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, Trustee UAW Robert Howze Maclellan Dtd 9/22/88 (US-TTEE 249,507;
ANB-DTC 19,523) 259,230
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, C/F J.F. Decosimo & J.N. Irvine, Co-TTEES UAW Robert H. Maclellan for
Heather Howze Maclellan (ST-Summit) 2,397
- --------------------------------------------------------------------------------------- -----------------------------
Suntrust Trust, C/F J.F. Decosimo & J.N. Irvine, Co-TTEES UAW Robert H. Maclellan for
Ian Llewellyn Maclellan (ST-Summit) 2,397
- --------------------------------------------------------------------------------------- -----------------------------
Trust for R.L. Maclellan & K.H. Maclellan Foundation U/A Mrs. Kathrina H. Maclellan
Dtd 1/4/73 (Cede & Co.) 45,416
- --------------------------------------------------------------------------------------- -----------------------------
K.H. Maclellan & US Trust Company of NY, TTEES for Second Charitable Remainder
Unitrust of K.H. Maclellan Dtd 12/17/81 Their Successor in Tr. & Assign
27,500
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. 827,150
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. & Suntrust Bank TTEES UTA 12/08/48 for Hugh O. Maclellan Jr.
299,916
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. TTEE FBO Catherine H. Maclellan Dtd 11/19/66 UTS H.O. Maclellan
51,091
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. TTEE FBO Daniel O. Maclellan Dtd 7/8/68 UTA H.O. Maclellan Sr.
51,060
- --------------------------------------------------------------------------------------- -----------------------------
S-2
<PAGE>
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. TTEE FBO Christopher H. Maclellan UTA H.O. Maclellan Sr.
47,435
- --------------------------------------------------------------------------------------- -----------------------------
H.O. Maclellan Jr. & Suntrust Trust, TTEES UITA of H.O. Maclellan Sr. FBO Catherine
H. Maclellan & Her Descs Dtd 5/29/70 (#4629) 100,612
- --------------------------------------------------------------------------------------- -----------------------------
H.O. Maclellan Jr. & Suntrust Trust, TTEES UITA of H.O. Maclellan Sr. FBO Daniel O.
Maclellan & His Descs Dtd 5/29/70 (#4630) 100,523
- --------------------------------------------------------------------------------------- -----------------------------
H.O. Maclellan Jr. & Suntrust Trust, TTEES UITA of H.O. Maclellan Sr. FBO Christopher
H. Maclellan & His Descs Dtd 5/29/70 (#4631) 100,715
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. & Charlotte M. Heffner, TTEES for Hugh O. Maclellan Sr. Dtd
1/31/67 1,740
- --------------------------------------------------------------------------------------- -----------------------------
C.F. Maclellan, H.O. Maclellan Jr., L.S. Anderson & J.C. Stophel, TTEES of the H.O.M.
Sr. Char. Inc. Tr. Dtd 12/31/76 FBO Elizabeth Maclellan
158,190
- --------------------------------------------------------------------------------------- -----------------------------
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel, TTEES of the H.O.
Maclelland Sr. Dtd 12/31/76 FBO Christoper H. Maclellan
136,665
- --------------------------------------------------------------------------------------- -----------------------------
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel, TTEES of the H.O.
Maclelland Sr. Dtd 12/31/76 FBO Catherine H. Maclellan
136,665
- --------------------------------------------------------------------------------------- -----------------------------
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel, TTEES of the H.O.
Maclelland Sr. Dtd 12/31/76 FBO Daniel O. Maclellan
136,665
- --------------------------------------------------------------------------------------- -----------------------------
H.O. Maclellan Jr., C.M. Heffner, L.S. Anderson & J.C. Stophel, TTEES of the H.O.
Maclellan Sr. Dtd 12/31/76 FBO Elizabeth Maclellan
136,670
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr., TTEE UTA Dtd 12/15/83 FBO Elizabeth Maclellan
3,320
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. C/F Elizabeth Maclellan UTUGTMA 5,329
- --------------------------------------------------------------------------------------- -----------------------------
Hugh O. Maclellan Jr. C/F Hugh Owner 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 Owner Maclellan III 688
- --------------------------------------------------------------------------------------- -----------------------------
S-3
<PAGE>
- --------------------------------------------------------------------------------------- -----------------------------
Christopher Hugh Maclellan, Cust. for Robert Browne Baclellan 688
- --------------------------------------------------------------------------------------- -----------------------------
Susan Maclellan (352 Nominee name) 3,652
- --------------------------------------------------------------------------------------- -----------------------------
Daniel Owen Maclellan 29,800
- --------------------------------------------------------------------------------------- -----------------------------
Daniel O. Maclellan Cust. for Jacqueline Hannah Maclellan 688
- --------------------------------------------------------------------------------------- -----------------------------
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
- --------------------------------------------------------------------------------------- -----------------------------
Haryl 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 Richard L. Heffner Jr. 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
- --------------------------------------------------------------------------------------- -----------------------------
S-4
<PAGE>
- --------------------------------------------------------------------------------------- -----------------------------
Christina M. Heffner 3,172
- --------------------------------------------------------------------------------------- -----------------------------
Thomas Maclellan Heffner 42,349
- --------------------------------------------------------------------------------------- -----------------------------
Irrevocable Trust 12/3/64 U/A H.O. Maclellan Sr. FBO Thomas Maclellan Heffner, R.L.
Heffner Sr., Trustee 11,675
- --------------------------------------------------------------------------------------- -----------------------------
Irrevocable Trust 6/1/62 U/A H.O. Maclellan Sr. FBO Richard L. Maclellan Jr., R.L.
Heffner Sr., Trustee 11,675
- --------------------------------------------------------------------------------------- -----------------------------
Jean B. (Mrs. Jere) Tipton 61,000
- --------------------------------------------------------------------------------------- -----------------------------
TOTAL SHARES 23,967,036
- --------------------------------------------------------------------------------------- -----------------------------
</TABLE>
S-5
<PAGE>
EXHIBIT 8
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, this Amended and Restated Registration Rights Agreement is
being executed on November 27, 1996 as of May 31, 1996; and
WHEREAS, the Investor has, pursuant to the terms of an Amended and
Restated Common Stock Purchase Agreement, entered into as of November 27, 1996
and dated as of May 31, 1996, by and among the Company and the Investor (as the
same may be amended or supplemented from time to time, the "Stock Purchase
Agreement"), agreed to purchase shares of Common Stock, par value $1.00 per
share, of the Company (the "Common Stock"); and
WHEREAS, the Company has agreed, as a condition precedent to the
Investor's obligations under the Stock Purchase Agreement, to grant the Investor
certain registration rights; and
WHEREAS, the Company and the Investor desire to define the registration
rights of the Investor on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITION
----------
As used in this Agreement, the following terms have the
respective meanings set forth below:
<PAGE>
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended;
Existing Holder: shall mean Textron, Inc. or any member of the Family
Group, and shall include any transferees thereof who are entitled to
registration rights from the Company pursuant to agreements between the Company
and Textron, Inc. or the Company and the members of the Family Group.
Family Group: shall mean the stockholders of the Company set forth on
Exhibit A hereto.
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean any Holder or Holders who in the
aggregate are Holders of more than 10% of the then outstanding Registrable
Securities;
Person: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
register, registered and registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) the shares of Common Stock
issued under the Stock Purchase Agreement, (B) any additional shares of Common
Stock acquired by the Investor and (C) any stock of the Company issued as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, the shares of Common Stock referred to in clause (A) or (B);
provided, that Registrable Securities shall not include (i) securities with
respect to which a registration statement with respect to the sale of such
securities has become effective under the Securities Act and all such securities
have been disposed of in accordance with such registration statement, or (ii)
such securities as are actually sold pursuant to Rule 144 (or any successor
provision thereto) under the Securities Act;
Registration Expenses: shall mean all expenses incurred by the Company
in compliance with Sections 2(a), (b) and (c) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders, blue sky fees and expenses and the expense of any
- 2 -
<PAGE>
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 RIGHT
------------------
(a) Requested Registration.
----------------------
(i) Request for Registration. If the Company shall receive from
an Initiating Holder, at any time, a written request that the Company
effect any registration with respect to all or a part of the
Registrable Securities, the Company will:
(A) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(B) as soon as practicable, use its reasonable best efforts to
effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so requested
and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in
such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are
specified in a written request received by the Company within 10
business days after written notice from the Company is given under
Section 2(a)(i)(A) above; provided that the Company shall not be
obligated to effect, or take any action to effect, any such
registration pursuant to this Section 2(a):
(u) Solely with respect to underwritten registrations
requested pursuant to this Agreement, if the Company shall have
previously effected an underwritten registration with respect
- 3 -
<PAGE>
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);
- 4 -
<PAGE>
(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
<PAGE>
contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 2(f)
hereof and the provision of opinions of counsel and accountants'
letters to the effect and to the extent provided in Section 2(e)
hereof, and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Holders.
The Company shall cooperate fully with the Holders and the underwriters
in connection with any underwritten offering. Notwithstanding any other
provision of this Section 2(a), if the representative advises the
Holders in writing that marketing factors require a limitation on the
number of shares to be underwritten, the securities of the Company held
by Other Stockholders shall be excluded from such registration to the
extent so required by such limitation. If, after the exclusion of such
shares, further reductions are still required, the number of shares
included in the registration by each Holder shall be reduced on a pro
rata basis (based on the number of shares held by such Holder), by such
minimum number of shares as is necessary to comply with such request.
No Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. If any Other Stockholder who has
requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the
Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the
Company and officers and directors of the Company may include its or
their securities for its or their own account in such registration if
the representative so agrees and if the number of Registrable
Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be
limited.
(b) Company Registration.
--------------------
(i) If the Company shall determine to register any of its equity
securities either for its own account or for the account of Other
Stockholders, other than a registration relating solely to benefit
plans, or a registration relating solely to a Commission Rule 145
transaction, or a registration on any registration form which does not
permit secondary sales or does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company
will:
- 6 -
<PAGE>
(A) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which
the Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by the Holders
within ten (10) business days after the giving of the written
notice from the Company described in clause (i) above, except as
set forth in Section 2(b)(ii) below. Such written request shall
specify the amount of Registrable Securities intended to be
disposed of by a Holder and may specify all or a part of the
Holders' Registrable Securities.
Notwithstanding the foregoing, if, at any time after giving such
written notice of its intention to effect such registration and prior
to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not
to register such equity securities the Company may, at its election,
give written notice of such determination to the Holders and thereupon
the Company shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such
equity securities (but not from its obligation to pay Registration
Expenses to the extent incurred in connection therewith as provided
herein), without prejudice, however, to the rights (if any) of Holders
immediately to request that such registration be effected as a
registration under Section 2(a) hereof.
(ii) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting,
the Company shall so advise each of the Holders as a part of the
written notice given pursuant to Section 2(b)(i)(A). In such event, the
right of each of the Holders to registration pursuant to this Section
2(b) shall be conditioned upon such Holders' participation in such
underwriting and the inclusion of such Holders' Registrable Securities
in the underwriting to the extent provided herein. The Holders whose
shares are to be included in such registration shall (together with the
Company and the Other Stockholders distributing their securities
through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or
underwriters selected for the underwriting by the Company or such Other
Stockholders, as the case may be. Such underwriting agreement will
contain such representations and warranties by the Company and such
other terms and provisions as are
- 7 -
<PAGE>
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 statement pursuant to Rule 415 under
- 8 -
<PAGE>
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
- 9 -
<PAGE>
Section 2(a)(ii) above, be amended to include other shares of
Common Stock which are held by Other Stockholders.
(d) Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 2 (including all Registration Expenses incurred in connection with the
Shelf Registration and any supplements or amendments thereto, whether or not it
becomes effective, and whether all, none or some of the Registrable Securities
are sold pursuant to the Shelf Registration) shall be borne by the Company, and
all Selling Expenses shall be borne by the Holders of the securities so
registered pro rata on the basis of the number of their shares so registered;
provided, however, that if, as a result of the withdrawal of a request for
registration by any of the Holders, as applicable, the registration statement
does not become effective, the Holders and Other Stockholders requesting
registration may elect to bear the Registration Expenses (pro rata on the basis
of the number of their shares so included in the registration request, or on
such other basis as such Holders and Other Stockholders may agree), in which
case such registration shall not be counted as a registration pursuant to
Section 2(a)(i)(B)(y).
(e) Registration Procedures. In the case of each registration effected
by the Company pursuant to this Section 2, the Company will keep the Holders, as
applicable, advised in writing as to the initiation of each registration and as
to the completion thereof. At its expense, the Company will:
(i) other than the Shelf Registration, the obligations in respect
of which are set forth in Section 2(c)(i)(B) above, keep such
registration effective for a period of one hundred eighty (180) days or
until the Holders, as applicable, have completed the distribution
described in the registration statement relating thereto, whichever
first occurs;
(ii) furnish to each Holder, and to any underwriter before filing
with the Commission, copies of any registration statement (including
all exhibits) and any prospectus forming a part thereof and any
amendments and supplements thereto (including all documents
incorporated or deemed incorporated by reference therein prior to the
effectiveness of such registration statement and including each
preliminary prospectus, any summary prospectus or any term sheet (as
such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, which
documents, other than documents incorporated or deemed incorporated by
reference, will be subject the review of the Holders and any such
underwriter for a period of at least five business days, and the
Company shall not file any such registration statement or such
prospectus or any amendment or supplement to such
- 10 -
<PAGE>
registration statement or prospectus to which any Holder or any
such underwriter shall reasonably object within five business days
after the receipt thereof; a Holder or such underwriter(s), if any,
shall be deemed to have reasonably objected to such filing only if the
registration statement, amendment, prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission;
(iii) furnish to each Holder and to any underwriter, such number
of conformed copies of the applicable registration statement and of
each amendment and supplement thereto (in each case including all
exhibits) and such number of copies of the prospectus forming a part of
such registration statement (including each preliminary prospectus, any
summary prospectus or any term sheet (as such term is used in Rule 434
under the Securities Act)) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, including without
limitation documents incorporated or deemed to be incorporated by
reference prior to the effectiveness of such registration, as each of
the Holders or any such underwriter, from time to time may reasonably
request;
(iv) to the extent practicable, promptly prior to the filing of
any document that is to be incorporated by reference into any
registration statement or prospectus forming a part thereof subsequent
to the effectiveness thereof, and in any event no later than the date
such document is filed with the Commission, provide copies of such
document to the Holders, if requested, and to any underwriter, make
representatives of the Company available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as any Holder
or any such underwriter reasonably may request;
(v) make available at reasonable times for inspection by the
Holders, any underwriter participating in any disposition pursuant to
such registration and any attorney or accountant retained by the
Holders or any such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and cause
the officers, directors and employees of the Company to supply all
information reasonably requested by the Holders and any such
underwriters, attorneys or accountants in connection with such
registration subsequent to the filing of the applicable registration
statement and prior to the effectiveness of the applicable registration
statement;
(vi) use its reasonable best efforts (x) to register or qualify
all Registrable Securities and other securities covered by such
registration under such other
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<PAGE>
securities or blue sky laws of such States of the United States of
America where an exemption is not available and as the sellers of
Registrable Securities covered by such registration shall reasonably
request, (y) to keep such registration or qualification in effect for
so long as the applicable registration statement remains in effect, and
(z) to take any other action which may be reasonably necessary or
advisable to enable such sellers to consummate the disposition in such
jurisdictions of the securities to be sold by such sellers, except that
the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
where it is not so qualified, or to subject itself to taxation in any
such jurisdiction, or to execute a general consent to service of
process in effecting such registration, qualification or compliance,
unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act or applicable rules
or regulations thereunder;
(vii) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered with
or approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the
Company and counsel to the Holders of Registrable Securities to enable
the Holders thereof to consummate the disposition of such Registrable
Securities;
(viii) subject to Section 2(i) hereof, promptly notify each Holder
of Registrable Securities covered by a registration statement (A) upon
discovery that, or upon the happening of any event as a result of
which, the prospectus forming a part of such registration statement, as
then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (B) of the
issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation of
proceedings for that purpose, (C) of any request by the Commission for
(1) amendments to such registration statement or any document
incorporated or deemed to be incorporated by reference in any such
registration statement, (2) supplements to the prospectus forming a
part of such registration statement or (3) additional information, (D)
of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and at the request of
any such Holder promptly prepare and furnish to it a reasonable number
of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as
- 12 -
<PAGE>
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
- 13 -
<PAGE>
Commission pursuant to the requirements of Section 13 and Section
15 of the Exchange Act; and
(xiii) use its reasonable best efforts to cause all Registrable
Securities included in any registration pursuant hereto to be listed on
each securities exchange on which securities of the same class are then
listed or, if not then listed on any securities exchange, to be
eligible for trading in any over-the-counter market or trading system
in which securities of the same class are then traded.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as applicable,
each of its officers, directors, members and partners, and each person
controlling each of the Holders, with respect to each registration
which has been effected pursuant to this Section 2, and each
underwriter, if any, and each person who controls any underwriter,
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or
the Exchange Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and
will reimburse each of the Holders, each of its officers, directors,
members and partners, and each person controlling each of the Holders,
each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred
in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the
Company by the Holders or underwriter and stated to be specifically for
use therein.
(ii) Each of the Holders will, if Registrable Securities held by
it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company,
each of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter, each
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<PAGE>
Other Stockholder and each of their officers, directors, members
and partners, and each person controlling such Other Stockholder
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document
made by such Holder, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements by such Holder therein not misleading, and will
reimburse the Company and such Other Stockholders, directors, officers,
partners, members, persons, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder and stated
to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder and under clause (vi)
below shall be limited to an amount equal to the net proceeds to such
Holder of securities sold as contemplated herein.
(iii) Each party entitled to indemnification under this Section
2(f) (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld) and the Indemnified Party may
participate in such defense at such party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the fees and expenses of one such
counsel for all Indemnified Parties shall be at the expense of the
Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 2 unless
the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party (which consent
shall not be unreasonably withheld or delayed), consent to entry of any
judgment or
- 15 -
<PAGE>
enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability in respect to
such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on
the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue (or alleged untrue) statement of a
material fact or the omission (or alleged omission) to state a material
fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any underwritten
public offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement
shall be controlling.
(vi) The foregoing indemnity agreement of the Company and Holders
is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement in question becomes
effective or the amended prospectus filed with the Commission pursuant
to Commission Rule 424(b) (the "Final Prospectus"), such indemnity or
contribution agreement shall not inure to the benefit of any
underwriter or Holder (but only if such Holder was required to deliver
such Final Prospectus) if a copy of the Final Prospectus was
- 16 -
<PAGE>
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
- 17 -
<PAGE>
that (x) such periods of suspension together with any periods of
suspension effected pursuant to Section 2(a)(i)(B)(v) hereof may not exceed 90
days in the aggregate during any period of 12 consecutive months and (y) the
Company may not impose such a suspension or a postponement pursuant to Section
2(a)(i)(B)(v) following the printing and distribution of a preliminary
prospectus in any underwritten public offering of Registrable Securities
pursuant to Section 2(a)(i) or 2(c)(iii) (except such suspension, not to exceed
10 days, which results from an event that is not within the reasonable control
of the Company). Notwithstanding the provisions of Section 2(a)(i)(B)(v) or this
Section 2(i), the Company shall not suspend the registration rights set forth
herein at any time during which any similar rights of the Existing Holders are
not similarly suspended.
(j) Termination. The registration rights set forth in Section 2(a)
shall not be available to any Holder if, in the opinion of counsel to the
Company, all of the Registrable Securities then owned by such Holder could be
sold in any 90-day period pursuant to Rule 144 (without giving effect to the
provisions of Rule 144(k)).
(k) Assignment. The registration rights set forth in Section 2 hereof
may be assigned, in whole or in part, to any transferee of Registrable
Securities (who shall be considered thereafter to be a Holder (provided that any
transferee who is not an affiliate of Investor shall be a Holder only with
respect to such Registrable Securities so acquired and any stock of the Company
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of, such Registrable Securities) and shall be bound by all
obligations and limitations of this Agreement).
3. INTERPRETATION OF THIS AGREEMENT
--------------------------------
(a) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
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<PAGE>
4. MISCELLANEOUS
-------------
(a) Notices.
-------
(i) All communications under this Agreement shall be in
writing and shall be delivered by facsimile or by hand or mailed by
overnight courier or by registered or certified mail, postage
prepaid:
(A) if to the Company, to Provident Companies, Inc., 1
Fountain Square, Chattanooga, Tennessee 37402, Fax No.: (423)
755-2590, Attention: Chief Financial Officer, or at such other
address as it may have furnished in writing to the Investors;
(B) if to the Investor, at the address listed on Schedule
I hereto, or at such other address as may have been furnished
the Company in writing.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by
courier, on the first business day following the date of such
mailing; and if mailed by registered or certified mail, on the
third business day after the date of such mailing.
(b) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Investor
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Investors may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investors in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(c) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties.
(d) Entire Agreement; Amendment and Waiver. This Agreement constitutes
the entire understanding of the parties hereto and supersedes all prior
understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Holders of a majority of the then
outstanding Registrable Securities.
- 19 -
<PAGE>
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(f) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement.
(g) Remedies. Each Holder of Registrable Securities, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended and understood that all of the rights and privileges
of each of the Holders shall be enforceable to the fullest extent permitted by
law.
- 20 -
<PAGE>
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
- 21 -
<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
ZURICH INSURANCE COMPANY
Mythenquai 2
P.O. Box
Ch-8022
Zurich, Switzerland
Attention: General Counsel
<PAGE>
EXHIBIT 9
STOCK PURCHASE AGREEMENT
BETWEEN
CENTRE REINSURANCE SERVICES (BERMUDA) LIMITED
AND
LONGFELLOW I, LLC
Dated as of March 27, 1997
<PAGE>
TABLE OF CONTENTS
Page
DEFINITIONS: CERTAIN REFERENCES..............................................3
SALE AND PURCHASE OF THE SHARES..............................................3
REPRESENTATIONS AND WARRANTIES OF THE SELLER.................................3
Title to Shares...........................................................3
Agreements................................................................4
Corporate Existence and Power.............................................4
Power and Authority.......................................................4
No Contravention, Conflict, Breach, Etc...................................4
Consents..................................................................4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..............................5
Purchase for Investment...................................................5
Restricted Securities.....................................................5
Existence and Power.......................................................5
Power and Authority.......................................................5
No Contravention, Conflict, Breach, Etc...................................5
Consents..................................................................6
COVENANTS OF THE PARTIES.....................................................6
Right of First Offer......................................................6
Voting of Shares..........................................................8
Registration Rights Agreement; Relationship Agreement.....................8
Pledge Agreement..........................................................9
Remedies Under the Stock Purchase Agreement...............................9
TERMINATION..................................................................9
MISCELLANEOUS...............................................................10
Notices..................................................................10
Survival.................................................................11
GOVERNING LAW............................................................11
Waiver...................................................................11
Severability.............................................................11
Headings; Interpretation Interpretation..................................12
Entire Agreement.........................................................12
Successors and Assigns...................................................12
Counterparts.............................................................12
<PAGE>1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of March 27, 1997, between
CENTRE REINSURANCE SERVICES (BERMUDA) LIMITED, a Bermuda corporation (the Seller
), and LONGFELLOW I, LLC, a Delaware limited liability company (the Purchaser ).
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase, an aggregate of 3,174,603 shares (the Shares ) of
the Common Stock, par value $.01 per share ( Common Stock ), of Provident
Companies, Inc. ( Provident ) for the consideration and upon the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
respective representations, warranties, covenants, agreements and conditions
contained herein, the Seller and the Purchaser agree as follows:
1. DEFINITIONS: CERTAIN REFERENCES.
The terms defined in this Section 1, whenever used in this
Agreement, shall have the following meanings for all purposes of this Agreement:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Affiliate" has the meaning set forth in Rule 12b-2 under the
Exchange Act.
"Agreement" means this Stock Purchase Agreement, as it may
hereafter be modified, supplemented or amended in accordance with its terms.
"Business Day" means any day excluding Saturday, Sunday and
any day which shall be in The City of New York, New York, a legal holiday or a
day on which banking institutions are authorized by law or other governmental
actions to close.
"Common Stock" has the meaning set forth in the second recital
of this Agreement.
<PAGE>2
"Encumbrance" means any mortgage, pledge, lien, security
interest, restriction upon voting or transfer, claim or encumbrance of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"First Offer Notice" has the meaning set forth in Section
5.1(A).
"Governmental Authority" means the government of any nation or
state, or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Law" means any law, treaty, rule or regulation of a
Governmental Authority or judgment, order, writ, injunction or determination of
an arbitrator or a court or other Governmental Authority.
"Loan Agreement" means the Credit Agreement, dated as of March
27, 1997, among the Purchaser and Bank of America N.T. & S.A., as agent (the
Agent ), and the other financial institutions party thereto (together with the
Agent, the Lenders ), as modified, supplemented or amended in accordance with
the terms thereof.
"Market Price," as of any date, means the closing price per
share of Common Stock for such date on the primary exchange, market or trading
system on which the Shares are traded.
"Material Adverse Effect" means a material adverse effect on
the assets, results of operations, business or condition (financial or
otherwise).
"Offered Shares" has the meaning set forth in Section 5.1(A).
"Option Expiration Time" has the meaning set forth in Section
5.1(B).
"Option Price" has the meaning set forth in Section 5.1(B).
"Person" means any individual, firm, corporation, partnership,
limited liability company or partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision
<PAGE>3
thereof) or other entity of any kind, and shall include any successor (by merger
or otherwise) of such entity.
"Provident" has the meaning set forth in the second recital of
this Agreement.
"Purchaser" has the meaning set forth in the first recital of
this Agreement.
"Registration Rights Agreement" means the Amended and Restated
Registration Rights Agreement, entered into as of November 27, 1996 and dated as
of May 31, 1996, between Zurich and Provident, as further amended, supplemented
and modified from time to time in accordance with the terms thereof and Section
5.3(B).
"Relationship Agreement" means the Amended and Restated
Relationship Agreement, entered into as of November 27, 1996 and dated as of May
31, 1996, between Provident and Zurich, and as further amended, supplemented and
modified in accordance with the terms thereof and Section 5.3(B).
"Seller" has the meaning set forth in the first recital of
this Agreement.
"Shares" has the meaning set forth in the second recital of
this Agreement.
"Stock Purchase Agreement" means the Amended and Restated
Stock Purchase Agreement, entered into as of November 27, 1996 and dated as of
May 31, 1996, between Provident and Zurich, as further amended, supplemented or
modified in accordance with the terms thereof.
"Transfer" means, with respect to any Share, any sale,
assignment, transfer or disposition by gift or other means, including without
limitation, any distribution in liquidation or otherwise by a corporation,
partnership, limited liability company or similar entity.
"Zurich" means Zurich Insurance Company, a Swiss corporation.
2. SALE AND PURCHASE OF THE SHARES.
The Seller does hereby sell, convey, transfer, assign and
deliver to the Purchaser, and the Purchaser does hereby purchase, assume and
accept from the Seller, the Shares at a per Share purchase price of
$31.50000173, for an aggregate purchase price of $100,000,000.00 (the Purchase
Price ). Receipt of the Purchase Price and the Shares is hereby acknowledged by
the Seller and the Purchaser, respectively.
<PAGE>4
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants to the Purchaser that:
3.1. Title to Shares. Upon delivery of and payment for the
Shares as provided in Section 2, the Seller will convey to the Purchaser valid
and marketable title thereto, free and clear of any Encumbrance (other than (i)
pursuant to the Relationship Agreement, (ii) as set forth herein or contemplated
hereby and (iii) as imposed by the Act or similar state securities laws).
3.2. Agreements. Zurich has delivered true and correct copies
of the Stock Purchase Agreement, the Relationship Agreement and the Registration
Rights Agreement, in each case together with all amendments thereto as of the
date hereof, and each of such agreements is in full force and effect as of the
date hereof. Receipt of such agreements is hereby acknowledged by the Purchaser.
The Seller is an Affiliate of Zurich and has been designated by Zurich to
purchase shares of Common Stock of Provident pursuant to Section 1.1 of the
Stock Purchase Agreement.
3.3. Corporate Existence and Power. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of Bermuda.
3.4. Power and Authority. The Seller has the full corporate
power and authority to execute and deliver this Agreement. The Seller has the
full corporate power and authority to perform its obligations hereunder. This
Agreement has been duly executed and delivered by the Seller and is a valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms.
3.5. No Contravention, Conflict, Breach, Etc. The execution,
delivery and performance of this Agreement by the Seller and the consummation of
the transactions contemplated hereby will not conflict with, contravene or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any material agreement by which the Seller is bound,
which conflict, contravention, breach, violation or
<PAGE>5
default would materially impair the ability of the Seller to consummate the
transactions contemplated hereby.
3.6. Consents. No consent, approval, authorization, order,
registration, filing or qualification of or with any (A) Governmental Authority
or (B) other Person is required to be made or obtained by the Seller or any of
its subsidiaries or Affiliates for the execution, delivery and performance by
the Seller of this Agreement and the consummation of the transactions
contemplated hereby, which if not obtained or made would materially impair the
ability of the Seller to consummate the transactions contemplated hereby, except
that Zurich will be required to file an amendment (the 13D Amendment ) to the
Schedule 13D of Zurich relating to its ownership of Common Stock pursuant to the
Exchange Act promptly after the Closing.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser severally represents and warrants to the Seller
that:
4.1. Purchase for Investment. The Shares are being acquired
for investment for the Purchaser s own account and not with a view to the resale
or distribution of any part thereof, except in compliance with the provisions of
the Act or an exemption therefrom.
4.2. Restricted Securities.
(A) The Purchaser understands that the Shares are
characterized as restricted securities under the federal securities laws
inasmuch as they are being acquired in a transaction or series of transactions
not involving a public offering and that under such laws and applicable
regulations the Shares may be resold without registration under the Act only in
certain limited circumstances.
(B) The Purchaser further agrees that each
certificate representing the Shares shall be stamped or otherwise imprinted with
a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (I) HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT
BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN
REGISTERED UNDER THAT
<PAGE>6
ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE, AND (II)
ARE SUBJECT TO THE PROVISIONS OF THE RELATIONSHIP AGREEMENT,
COPIES OF WHICH ARE ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES
OF PROVIDENT.
4.3. Existence and Power. The Purchaser is duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Purchaser has the limited liability power and authority to conduct its
business as currently conducted.
4.4. Power and Authority. The Purchaser has the full limited
liability company power and authority to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement has been duly executed and
delivered by the Purchaser and is a valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms.
4.5. No Contravention, Conflict, Breach, Etc. The execution,
delivery and performance of this Agreement by the Purchaser and the consummation
of the transactions contemplated hereby will not conflict with, contravene or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any material agreement by which the Purchaser is
bound, which conflict, contravention, breach, violation or default would
materially impair the ability of the Purchaser to consummate the transactions
contemplated hereby.
4.6. Consents. No consent, approval, authorization, order,
registration, filing or qualification of or with any (A) Governmental Authority
or (B) other Person is required to be made or obtained by the Purchaser for the
execution, delivery and performance by the Purchaser of this Agreement and the
consummation of the transactions contemplated hereby, which if not obtained or
made would materially impair the ability of the Purchaser to consummate the
transactions contemplated hereby.
5. COVENANTS OF THE PARTIES.
5.1. Right of First Offer. The Purchaser covenants and agrees
that:
(A) If the Purchaser desires to Transfer any or all
of its Shares, the Purchaser shall first give written notice
<PAGE>7
to the Seller (the First Offer Notice ), which First Offer Notice shall identify
the Shares proposed to be Transferred (the Offered Shares ), indicate if such
Offered Shares are being Transferred by the Agent or the Lenders and shall be
effective when delivered to the Seller in accordance with the provisions of
Section 7.1.
(B) During the twenty-six hours (considering only
those hours of a Business Day), immediately following the effective delivery of
the First Offer Notice (the Option Expiration Time ), the Seller (and/or such
Affiliates of the Seller as it may designate in writing to the Purchaser) shall
have the right, but not the obligation, to elect to purchase all of the Offered
Shares at a purchase price (the Option Price ) equal to the product of (i) the
Market Price as of the date of effective delivery of the First Offer Notice and
(ii) the number of Offered Shares, by delivery by the Seller of written notice,
prior to the Option Expiration Time, to the Purchaser; provided, however, that
if the First Offer Notice indicates that the Offered Shares are being
Transferred by the Agent or the Lenders then, unless such notice delivered by
the Seller (and/or any such Affiliate) contains the binding obligation of the
Seller to consummate the purchase of the Offered Shares no later than the third
Business Day following the date on which the Option Expiration Time occurs, the
Seller shall be deemed to have waived its right to purchase the Offered Shares
and; provided, further, however, that any First Offer Notice may be withdrawn by
the Purchaser prior to its receipt of such written notice by the Seller and the
provisions of this Section 5.1 shall again become effective and no Transfer of
such Offered Shares subject to this Section 5.1 may be made thereafter by the
Purchaser without again offering the same to the Seller in accordance with
Section 5.1(A). The failure of the Seller to respond prior to the Option
Expiration Time shall be deemed to be a waiver of its right to purchase the
Offered Shares; provided, that the First Offer Notice was delivered in
accordance with Section 5.1(A).
(C) If the Seller has not elected, or is deemed to
have waived its right, to purchase all of the Offered Shares prior to the Option
Expiration Time, the Purchaser shall have the right to Transfer such Offered
Shares to any buyer in a bona fide transaction consummated within 90 Business
Days following the date on which the Option Expiration Time occurs. If such
proposed Transfer of the Offered Shares to a buyer is not consummated within
such 90-Business Day period, then the restrictions provided for in this Section
5.1 shall again become effective, and no Transfer of such Offered Shares subject
to this Section 5.1 may be made thereafter by the Purchaser without again
offering the same to the Seller in accordance with Section 5.1(A) provided,
however, that no such reoffer shall be required if such
<PAGE>8
Offered Shares are being sold in a controlled selling program described by the
Purchaser in the applicable First Offer Notice, which description shall contain
the number of Offered Shares to be so sold and the anticipated timing of such
sales, and the Offered Shares remaining unsold after such 90-Business Day period
constitute less than 5% of the Shares.
(D) If the Seller (and/or any Affiliate designated
by the Seller pursuant to Section 5.1(B)) shall exercise its option pursuant to
Section 5.1(B), the Transfer of the Offered Shares to the Seller (and/or any
such Affiliate) resulting from the exercise of such option shall take place no
later than the third Business Day following the later of (i) the date on which
the Option Expiration Time occurs and (ii) the receipt by the Seller of all
required consents and approvals, which the Seller (and/or any such Affiliate)
shall use its commercially reasonable best efforts to obtain in a timely manner
and which shall in no event occur no later than on the sixtieth day following
the date on which the First Offer Notice was given; provided, however, that if
the notice delivered by Seller in accordance with Section 5.1(B) contains the
binding obligation of the Seller to consummate the purchase of the Offered
Shares no later than the third Business Day following the date on which the
Option Expiration occurs, such purchase shall take place within the period
described in clause (i) above. If the closing of any Transfer of Offered Shares
occurs after the third Business Day following the date on which the Option
Expiration Time occurs (the Interest Accrual Date ), interest will accrue on the
Option Price at the 3-month U.S. Treasury rate during the period commencing on
the Interest Accrual Date and ending on the date on which such closing occurs.
On such closing date, the Purchaser shall execute and deliver instruments, in
form and substance reasonably satisfactory to the Seller, assigning all of its
right, title and interest in the Offered Shares to the Seller (and/or any such
Affiliate), against payment therefor, free and clear of all Encumbrances, other
than restrictions imposed pursuant to this Agreement, the Relationship Agreement
and applicable Federal and state securities laws. If the Seller shall designate
an Affiliate to purchase the Offered Shares as contemplated by this Section 5.1,
such designation shall not relieve the Seller of its obligations under this
Section 5.1
5.2. Voting of Shares. With respect to any Share and until
such time as the provisions of Section 2.4 of the Relationship Agreement are no
longer applicable to any such Share, the Purchaser hereby irrevocably appoints
Zurich its proxy to represent and vote each such Share held of record by the
Purchaser on the record date for determining the stockholders of Provident
eligible to vote on the matter at issue, for and in the name, place and stead of
the
<PAGE>9
Purchaser, at all regular, special or other meetings of the holders of the
Common Stock, and at any adjournment of such meetings, held during the time this
proxy is in effect, and to act by consent in lieu of a meeting, or otherwise,
with respect to the Shares held of record by the Purchaser on the date such
consent is to be given, or such other action taken, at all times this proxy is
in effect. Zurich shall be entitled to so vote or act with respect to each such
Share in its sole discretion and neither Zurich nor any of its subsidiaries or
Affiliates shall have any liability to the Purchaser for damages or liabilities
incurred or sustained by the Purchaser as a result of, or in connection with,
any such vote or action or the outcome thereof. It is hereby expressly
acknowledged that upon the Transfer of any Shares by the Purchaser to a
non-Affiliate of the Purchaser, the proxy described in the second preceding
sentence shall without any action or writing of any kind required immediately
cease to be in effect, and shall be of no further force, in each case only with
respect to such Transferred Shares provided, that such Transfer complies with
Section 2.4(g) of the Relationship Agreement.
5.3. Registration Rights Agreement; Relationship Agreement.
(A) The Seller agrees for itself and each of its
subsidiaries and Affiliates (i) that the Purchaser shall have the sole right
(together with any subsequent assignees of such right or portion thereof) to
request one of the three registrations described in Section 2(a)(i)(y) of the
Registration Rights Agreement for so long as the Purchaser and any of such
assignees are, in the aggregate, Holders of more than 10% of the then
outstanding Registrable Securities and (ii) to cause any transferee of the
Seller's Registrable Securities to be bound by the agreement contained in clause
(i) of this Section 5.3(A).
(B) So long as the Purchaser, the Agent or any
Lender holds any Registrable Securities, the Seller agrees that neither the
Seller nor any of its subsidiaries or Affiliates shall amend the Registration
Rights Agreement or Section 2.4 of the Relationship Agreement in a manner
adverse to the Purchaser, the Agent or the Lenders without the prior written
consent of the Purchaser and the Agent, which consent shall not be unreasonably
withheld.
(C) Simultaneously with the execution hereof, the
Purchaser shall execute and deliver to Provident a letter with respect to the
Relationship Agreement substantially in the form attached hereto as Exhibit A.
<PAGE>10
5.4. Pledge Agreement. The Purchaser agrees not to amend
Sections 2.5 and 7.1 of the Pledge Agreement (as defined in the Loan Agreement)
in a manner adverse to the Seller without the prior written consent of the
Seller (which consent shall not be unreasonably withheld).
5.5. Remedies Under the Stock Purchase Agreement. In the event
that (i) the Seller or any of its subsidiaries or Affiliates recover any amount
in respect of a claim by it (a "Seller Claim") (x) resulting from or arising out
of a breach by Provident of any of its representations, warranties, covenants or
agreements contained in the Stock Purchase Agreement, the Registration Rights
Agreement or the Relationship Agreement or (y) under the provisions of Section
6.1(b) of the Stock Purchase Agreement and (ii) the Purchaser or its Affiliates
or any of their respective partners, members, shareholders, officers or
directors (each, a "Purchaser Party") has a Claim (as defined in the Stock
Purchase Agreement) relating to or arising from the event, state of facts or
circumstance that formed the basis of or gave rise to the Seller Claim, the
Seller and such subsidiaries and Affiliates shall pay over to the Purchaser the
lesser of (A) one- third of the amount actually received by the Seller in
respect of the Seller Claim and (B) the amount of the Purchaser Parties' Claims
relating to or arising out of the event, state of facts or circumstance that
formed the basis of or gave rise to the Seller Claim. Nothing in this Section
5.5 or elsewhere in this Agreement shall be deemed to (i) give any Purchaser
Party or any other Person any right to make a claim under or in respect of the
Stock Purchase Agreement, the Registration Rights Agreement or the Relationship
Agreement, which claim such Purchaser Party would not otherwise have the right
to make, or (ii) require the Seller or any of its subsidiaries or Affiliates to
pursue any remedies under the Stock Purchase Agreement, the Registration Rights
Agreement or the Relationship Agreement.
6. TERMINATION.
This Agreement shall terminate upon the written agreement of
the parties hereto.
7. MISCELLANEOUS.
7.1. Notices. All notices or other communications given or
made hereunder shall be validly given or made if in writing and delivered by
facsimile transmission or in person at, mailed by registered or certified mail,
return receipt requested, postage prepaid, or sent by a reputable overnight
courier to, the following addresses (except
<PAGE>11
for notices required to be delivered pursuant to Section 5.1, which notices
shall be delivered by hand to the Seller or the Purchaser, as the case may be,
at its New York City address) and shall be deemed effective at the time of
receipt thereof (except for notices required to be delivered pursuant to Section
5.1, which notices shall be deemed effective at the time of their delivery in
accordance with this sentence).
If to the Seller:
c/o Zurich Insurance Company
Mythenquai 2
P.O. Box Ch. 8022
Zurich, Switzerland
Attention: General Counsel
Fax No.: 011-411-202-1063
With copies to (the following being the Seller's New York City
address):
Zurich Centre Resource Limited
One Chase Manhattan Plaza
New York, New York 10005
Attention: General Counsel
Fax No.: (212) 898-5002
and
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4669
Attention: Thomas Cerabino, Esq.
Fax No.: (212) 821-8111
<PAGE>12
If to the Purchaser:
201 Main Street
Fort Worth, Texas 76102
Attention: Chuck Irwin
Fax No.: (817) 390-8739
with copies to (the following being the Purchaser's New York City address):
c/o Insurance Partners Advisors, L.P.
One Chase Manhattan Plaza
44th Floor
New York, New York 10005
Attention: Robert A. Spass
Fax No.: (212) 898-8720
and
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Marilyn Sobel, Esq.
Fax No.: (212) 757-3990
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above.
<PAGE>13
7.2. Survival. All representations, warranties, covenants and
agreements contained herein shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
7.3. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
AGREEMENTS MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE.
7.4. Waiver. The failure at any time to require performance of
any provision hereof shall in no way affect the full right to require such
performance at any time thereafter (unless performance thereof has been waived
in accordance with the terms hereof for all purposes and at all times by the
parties to whom the benefit of such performance is to be rendered). The waiver
by any party to this Agreement of a breach of any provision hereof shall not be
taken or held to be a waiver of any succeeding breach of such provision of any
other provision or as a waiver of the provision itself.
7.5. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, each of the Seller and the Purchaser directs
that such court interpret and apply the remainder of this Agreement in the
manner that it determines most closely effectuates their intent in entering into
this Agreement, and in doing so particularly take into account the relative
importance of the term, provision, covenant or restriction being held invalid,
void or unenforceable.
7.6. Headings; Interpretation Interpretation;. The index and
section headings herein are for convenience only and shall not affect the
construction hereof. References to sections means sections of this Agreement
unless the context otherwise requires. References to herein or hereof mean this
Agreement.
7.7. Entire Agreement. This Agreement embodies the entire
agreement between the parties relating to the subject matter hereof.
7.8. Successors and Assigns. All covenants and agreements
contained in this Agreement by or on behalf of the parties hereto shall bind,
and inure to the benefit of, the respective successors and assigns of the
parties hereto; provided, however, that the rights and obligations of either
party hereto may not be assigned
<PAGE>14
without the prior written consent of the other parties; provided, further,
however, that the Purchaser shall be deemed to have assigned its rights and
obligations hereunder to the Agent or the Lenders to the extent Shares are
Transferred to such Person in the manner required by the Loan Agreement or the
documents entered into in connection therewith.
7.9. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and both of which
together shall be deemed to be one and the same instrument.
<PAGE>15
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
CENTRE REINSURANCE SERVICES
(BERMUDA) LIMITED
By:/s/ Andrea Hodson
Name: Andrea Hodson
Title: Vice President
LONGFELLOW I, LLC
By:/s/ Robert A. Spass
Name: Robert A. Spass
Title: President
<PAGE>16
As a material inducement to Longfellow I, LLC (the
"Purchaser") to enter into the Stock Purchase Agreement (the "Agreement") dated
as of March 27, 1997, between the Purchaser and Centre Reinsurance Services
(Bermuda) Limited, a subsidiary of the undersigned (the "Seller"), and in
consideration of the voting agreement contained in Section 5.2 of the Agreement,
the undersigned hereby (i) acknowledges and agrees that the Purchaser shall have
the rights set forth in Section 5.3(A) of the Agreement, (ii) agrees to comply
with the provisions of Sections 5.3(A), 5.3(B) and 5.5 of the Agreement in its
capacity as an affiliate of the Seller and (iii) agrees to cause its
subsidiaries and affiliates, including the Seller, to perform the obligations
set forth in, and comply with the provisions of, Sections 5.3(A), 5.3(B) and 5.5
of the Agreement.
ZURICH INSURANCE COMPANY
By:/s/ W. Bolinder /s/ M. Landolt
Name: W. Bolinder M. Landolt
Title: Member of the Office of the Chairman
Corporate
Executive Board
<PAGE>17
As a material inducement to Longfellow I, LLC (the
"Purchaser") to enter into the Stock Purchase Agreement (the "Agreement") dated
as of March 27, 1997, between the Purchaser and Centre Reinsurance Services
(Bermuda) Limited, an affiliate of the undersigned (the "Seller"), the
undersigned hereby agrees to cause its subsidiaries and affiliates, including
the Seller, to perform the obligations set forth in, and comply with the
provisions of, Section 5.1 of the Agreement.
ZURICH CENTRE INVESTMENTS LIMITED
By:/s/ Thomas Gleeson
Name: Thomas Gleeson
Title: Vice President
<PAGE>1
EXHIBIT A
LONGFELLOW I, LLC
41 Cedar Avenue
P.O. Box HM 1179
Hamilton, HM EX, Bermuda
Dated as of ________ __, 1997
Provident Companies, Inc.
1 Fountain Square
Chattanooga, Tennessee 37402
Attention: Chief Financial Officer
Re: Relationship Agreement
Ladies and Gentlemen:
Reference is made to the Amended and Restated Relationship
Agreement, entered into as of November 27, 1996 and dated as of May 31, 1996
(the "Relationship Agreement"), between Provident Companies, Inc. and Zurich
Insurance Company. Capitalized terms used herein shall have the respective
meanings ascribed to such terms in the Relationship Agreement.
Longfellow I, LLC is an "IP Entity". For good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Longfellow I, LLC hereby assumes the obligations and restrictions contained in
Section 2.4 of the Relationship Agreement pertaining to the Investor, except to
the extent such obligations and restrictions are therein modified in their
application to IP Entities.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF.
<PAGE>2
This letter agreement may be signed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
instrument.
Very truly yours,
LONGFELLOW I, LLC
By: Insurance Partners, L.P.,
a managing member
By: Insurance GenPar, L.P., its general partner
By: Insurance GenPar MGP, L.P., its general partner
By: Insurance GenPar MGP, Inc., its general partner
By:
Name:
Title:
By: Insurance Partners Offshore (Bermuda), L.P., a managing member
By: Insurance GenPar (Bermuda), L.P., its general partner
By: Insurance GenPar (Bermuda) MGP, L.P., its general partner
By: Insurance GenPar (Bermuda) MGP, Ltd., its general partner
By:
Name:
Title:
cc: F. Dean Copeland
Alston & Bird
<PAGE>
EXHIBIT 10
Joint Filing Agreement
The undersigned hereby agree that the statement on Schedule
13D with respect to the Common Stock of Provident Companies, Inc. dated April
__, 1997, and any amendments thereto, signed by each of the undersigned, shall
be filed on behalf of each of us pursuant to and in accordance with the
provisions of Rule 13d-1(f) under the Securities Exchange Act of 1934.
Dated: April 7, 1997 ZURICH INSURANCE COMPANY
By: /s/ Kaspar Hotz
---------------------------
Name: Kaspar Hotz
Title: Corporate Secretary &
General Counsel
By: /s/Monica Machler
---------------------------
Name: Monica Machler
Title: Member of the Executive
Staff
Dated: April 7, 1997 CENTRE REINSURANCE LIMITED
By: /s/ Andrea Hodson
---------------------------
Name: Andrea Hodson
Title: Vice President
Dated: April 7, 1997 ZURICH REINSURANCE CENTRE, INC.
By: /s/Mark Sarlitto
---------------------------
Name: Mark Sarlitto
Title: Senior Vice President &
General Counsel
<PAGE>
Dated: April 7, 1997 EMPIRE FIRE AND MARINE INSURANCE COMPANY
By: /s/ John McCartney
---------------------------
Name: John McCartney
Title: President & CEO
Dated: April 7, 1997 UNIVERSAL UNDERWRITERS INSURANCE
COMPANY
By: /s/ Ken Goldstein
---------------------------
Name: Ken Goldstein
Title: President & CEO
Dated: April 7, 1997 UNIVERSAL UNDERWRITERS LIFE
INSURANCE COMPANY
By: /s/ Ken Goldstein
---------------------------
Name: Ken Goldstein
Title: President & CEO
Dated: April 7, 1997 FIDELITY AND DEPOSIT COMPANY OF
MARYLAND
By: /s/ Richard Williams
---------------------------
Name: Richard Williams
Title: President & CEO
<PAGE>
EXHIBIT 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that the undersigned, Zurich Insurance Company
(the "Company"), hereby makes, constitutes and appoints STEVEN D. GERMAIN as the
Company's agent and attorney in fact for the purpose of executing on behalf of
the Company, all documents, certificates, instruments, statements, filings and
agreements ("documents") to be filed with or delivered to any foreign or
domestic governmental or regulatory body or required or requested by any other
person or entity pursuant to any legal or regulatory requirement relating to the
acquisition, ownership, management or disposition of securities of Provident
Companies, Inc., and any other documents relating or ancillary thereto,
including but not limited to, all documents relating to filings with the United
States Securities and Exchange Commission (the "SEC") pursuant to the Securities
Act of 1933 or the Securities Exchange Act of 1934 (the "Act") and the rules and
regulations promulgated thereunder, including: (1) all documents relating to the
beneficial ownership of securities required to be filed with the SEC pursuant to
Section 13(d) or Section 16(a) of the Act including, without limitation: (a) any
acquisition statements on Schedule 13D or Schedule 13G and any amendments
thereto, (b) any joint filing agreements pursuant to Rule 13d-1(f) and (c) any
initial statements of, or statements of changes in, beneficial ownership of
securities on Form 3, Form 4 or Form 5 and (2) any information statements on
Form 13F required to be filed with the SEC pursuant to Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by the
Company.
IN WITNESS WHEREOF, the Company has executed this instrument this 7th day of
April, 1997.
ZURICH INSURANCE COMPANY
By: /s/ Kaspar Hotz
---------------------------
Name: Kaspar Hotz
Title: Corporate Secretary &
General Counsel
By: /s/Monica Machler
---------------------------
Name: Monica Machler
Title: Member of the Executive
Staff
<PAGE>
EXHIBIT 12
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that the undersigned, Centre Reinsurance Limited
(the "Company"), hereby makes, constitutes and appoints STEVEN D. GERMAIN as the
Company's agent and attorney in fact for the purpose of executing on behalf of
the Company, all documents, certificates, instruments, statements, filings and
agreements ("documents") to be filed with or delivered to any foreign or
domestic governmental or regulatory body or required or requested by any other
person or entity pursuant to any legal or regulatory requirement relating to the
acquisition, ownership, management or disposition of securities of Provident
Companies, Inc., and any other documents relating or ancillary thereto,
including but not limited to, all documents relating to filings with the United
States Securities and Exchange Commission (the "SEC") pursuant to the Securities
Act of 1933 or the Securities Exchange Act of 1934 (the "Act") and the rules and
regulations promulgated thereunder, including: (1) all documents relating to the
beneficial ownership of securities required to be filed with the SEC pursuant to
Section 13(d) or Section 16(a) of the Act including, without limitation: (a) any
acquisition statements on Schedule 13D or Schedule 13G and any amendments
thereto, (b) any joint filing agreements pursuant to Rule 13d-1(f) and (c) any
initial statements of, or statements of changes in, beneficial ownership of
securities on Form 3, Form 4 or Form 5 and (2) any information statements on
Form 13F required to be filed with the SEC pursuant to Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by the
Company.
IN WITNESS WHEREOF, the Company has executed this instrument this 7th day of
April, 1997.
CENTRE REINSURANCE LIMITED
By: /s/ Andrea Hodson
--------------------------
Name: Andrea Hodson
Title: Vice President
<PAGE>
EXHIBIT 13
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that the undersigned, Zurich Reinsurance Centre,
Inc. (the "Company"), hereby makes, constitutes and appoints STEVEN D. GERMAIN
as the Company's agent and attorney in fact for the purpose of executing on
behalf of the Company, all documents, certificates, instruments, statements,
filings and agreements ("documents") to be filed with or delivered to any
foreign or domestic governmental or regulatory body or required or requested by
any other person or entity pursuant to any legal or regulatory requirement
relating to the acquisition, ownership, management or disposition of securities
or other investments, and any other documents relating or ancillary thereto,
including but not limited to, all documents relating to filings with the United
States Securities and Exchange Commission (the "SEC") pursuant to the Securities
Act of 1933 or the Securities Exchange Act of 1934 (the "Act") and the rules and
regulations promulgated thereunder, including: (1) all documents relating to the
beneficial ownership of securities required to be filed with the SEC pursuant to
Section 13(d) or Section 16(a) of the Act including, without limitation: (a) any
acquisition statements on Schedule 13D or Schedule 13G and any amendments
thereto, (b) any joint filing agreements pursuant to Rule 13d-1(f) and (c) any
initial statements of, or statements of changes in, beneficial ownership of
securities on Form 3, Form 4 or Form 5 and (2) any information statements on
Form 13F required to be filed with the SEC pursuant to Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by the
Company.
IN WITNESS WHEREOF, the Company has executed this instrument this 7th day of
April, 1997.
ZURICH REINSURANCE CENTRE, INC.
By: /s/Mark Sarlitto
---------------------------
Name: Mark Sarlitto
Title: Senior Vice President &
General Counsel
<PAGE>
EXHIBIT 14
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that the undersigned, Empire Fire and Marine
Insurance Company (the "Company"), hereby makes, constitutes and appoints DAVID
A. BOWERS as the Company's agent and attorney in fact for the purpose of
executing on behalf of the Company, all documents, certificates, instruments,
statements, filings and agreements ("documents") to be filed with or delivered
to any foreign or domestic governmental or regulatory body or required or
requested by any other person or entity pursuant to any legal or regulatory
requirement relating to the acquisition, ownership, management or disposition of
securities or other investments, and any other documents relating or ancillary
thereto, including but not limited to, all documents relating to filings with
the United States Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934 (the "Act") and
the rules and regulations promulgated thereunder, including: (1) all documents
relating to the beneficial ownership of securities required to be filed with the
SEC pursuant to Section 13(d) or Section 16(a) of the Act including, without
limitation: (a) any acquisition statements on Schedule 13D or Schedule 13G and
any amendments thereto, (b) any joint filing agreements pursuant to Rule
13d-1(f) and (c) any initial statements of, or statements of changes in,
beneficial ownership of securities on Form 3, Form 4 or Form 5 and (2) any
information statements on Form 13F required to be filed with the SEC pursuant to
Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by the
Company.
IN WITNESS WHEREOF, the Company has executed this instrument this 7th day of
April, 1997.
EMPIRE FIRE AND MARINE INSURANCE
COMPANY
By: /s/ John McCartney
Name: John McCartney
Title: President & CEO
<PAGE>
EXHIBIT 15
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that the undersigned, Universal Underwriters
Insurance Company (the "Company"), hereby makes, constitutes and appoints DAVID
A. BOWERS as the Company's agent and attorney in fact for the purpose of
executing on behalf of the Company, all documents, certificates, instruments,
statements, filings and agreements ("documents") to be filed with or delivered
to any foreign or domestic governmental or regulatory body or required or
requested by any other person or entity pursuant to any legal or regulatory
requirement relating to the acquisition, ownership, management or disposition of
securities or other investments, and any other documents relating or ancillary
thereto, including but not limited to, all documents relating to filings with
the United States Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934 (the "Act") and
the rules and regulations promulgated thereunder, including: (1) all documents
relating to the beneficial ownership of securities required to be filed with the
SEC pursuant to Section 13(d) or Section 16(a) of the Act including, without
limitation: (a) any acquisition statements on Schedule 13D or Schedule 13G and
any amendments thereto, (b) any joint filing agreements pursuant to Rule
13d-1(f) and (c) any initial statements of, or statements of changes in,
beneficial ownership of securities on Form 3, Form 4 or Form 5 and (2) any
information statements on Form 13F required to be filed with the SEC pursuant to
Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by the
Company.
IN WITNESS WHEREOF, the Company has executed this instrument this 7th day of
April, 1997.
UNIVERSAL UNDERWRITERS INSURANCE
COMPANY
By: /s/ Ken Goldstein
Name: Ken Goldstein
Title: President & CEO
<PAGE>
EXHIBIT 16
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that the undersigned, Universal Underwriters Life
Insurance Company (the "Company"), hereby makes, constitutes and appoints DAVID
A. BOWERS as the Company's agent and attorney in fact for the purpose of
executing on behalf of the Company, all documents, certificates, instruments,
statements, filings and agreements ("documents") to be filed with or delivered
to any foreign or domestic governmental or regulatory body or required or
requested by any other person or entity pursuant to any legal or regulatory
requirement relating to the acquisition, ownership, management or disposition of
securities or other investments, and any other documents relating or ancillary
thereto, including but not limited to, all documents relating to filings with
the United States Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934 (the "Act") and
the rules and regulations promulgated thereunder, including: (1) all documents
relating to the beneficial ownership of securities required to be filed with the
SEC pursuant to Section 13(d) or Section 16(a) of the Act including, without
limitation: (a) any acquisition statements on Schedule 13D or Schedule 13G and
any amendments thereto, (b) any joint filing agreements pursuant to Rule
13d-1(f) and (c) any initial statements of, or statements of changes in,
beneficial ownership of securities on Form 3, Form 4 or Form 5 and (2) any
information statements on Form 13F required to be filed with the SEC pursuant to
Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by the
Company.
IN WITNESS WHEREOF, the Company has executed this instrument this 7th day of
April, 1997.
UNIVERSAL UNDERWRITERS LIFE
INSURANCE COMPANY
By: /s/ Ken Goldstein
Name: Ken Goldstein
Title: President & CEO
<PAGE>
EXHIBIT 17
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that the undersigned, Fidelity and Deposit
Company of Maryland (the "Company"), hereby makes, constitutes and appoints
DAVID A. BOWERS as the Company's agent and attorney in fact for the purpose of
executing on behalf of the Company, all documents, certificates, instruments,
statements, filings and agreements ("documents") to be filed with or delivered
to any foreign or domestic governmental or regulatory body or required or
requested by any other person or entity pursuant to any legal or regulatory
requirement relating to the acquisition, ownership, management or disposition of
securities or other investments, and any other documents relating or ancillary
thereto, including but not limited to, all documents relating to filings with
the United States Securities and Exchange Commission (the "SEC") pursuant to the
Securities Act of 1933 or the Securities Exchange Act of 1934 (the "Act") and
the rules and regulations promulgated thereunder, including: (1) all documents
relating to the beneficial ownership of securities required to be filed with the
SEC pursuant to Section 13(d) or Section 16(a) of the Act including, without
limitation: (a) any acquisition statements on Schedule 13D or Schedule 13G and
any amendments thereto, (b) any joint filing agreements pursuant to Rule
13d-1(f) and (c) any initial statements of, or statements of changes in,
beneficial ownership of securities on Form 3, Form 4 or Form 5 and (2) any
information statements on Form 13F required to be filed with the SEC pursuant to
Section 13(f) of the Act.
All past acts of the attorney-in-fact in furtherance of the foregoing are hereby
ratified and confirmed.
This power of attorney shall be valid from the date hereof until revoked by the
Company.
IN WITNESS WHEREOF, the Company has executed this instrument this 7th day of
April, 1997.
FIDELITY AND DEPOSIT COMPANY
OF MARYLAND
By: /s/ Richard F. Williams
Name: Richard F. Williams
Title: President & CEO
