EXHIBIT 2.8
EXHIBIT D
TO MERGER AGREEMENT
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (this "Guarantee") is made and entered into as of
___________, 1997 by and between AEGON USA, INC. (the "Guarantor"), a Delaware
corporation and wholly owned subsidiary of AEGON N.V., a company formed under
the laws of The Netherlands ("Merger Partner"), PROVIDIAN CORPORATION, a
Delaware corporation ("Company"), and PROVIDIAN BANCORP, INC., a Delaware
corporation and wholly owned subsidiary of Company ("Spinco").
WHEREAS, Merger Partner, Company and LT Merger Corp., a Delaware
corporation and wholly owned subsidiary of Merger Partner ("Sub"), have entered
into a Plan and Agreement of Merger and Reorganization dated December 28, 1996
(the "Merger Agreement"), which provides for the merger of Sub into Company with
the result that Company will survive as a wholly owned subsidiary of Merger
Partner;
WHEREAS, Company and Spinco have entered into an Agreement and Plan of
Distribution, dated December 28, 1996 (the "Distribution Agreement") in
connection with the spin-off of Spinco by Company immediately prior to the
Merger; and
WHEREAS, as an inducement to Spinco and Company to enter into the
Distribution Agreement and to Company to enter into the Merger Agreement,
Guarantor has agreed to enter into this Guarantee;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. The Guarantor hereby unconditionally and irrevocably guarantees to
Spinco and to the other Protected Parties (as defined below) (a) the due,
punctual and full payment by Company of all amounts payable by Company under the
Distribution Agreement and the Other Agreements (as defined in the Distribution
Agreement) and under Sections 6.14 and 6.16 of the Merger Agreement as and when
the same shall become due and payable in accordance with the terms thereof and
(b) the due, prompt and faithful performance of, and compliance with, all other
obligations, covenants, terms, conditions and undertakings of Company contained
in the Distribution Agreement and the Other Agreements and under Sections 6.14
and 6.16 of the Merger Agreement in accordance with the terms thereof; provided,
however, that, notwithstanding the foregoing, the aggregate amount required to
be paid by the Guarantor as a result of its liabilities and obligations under
this Agreement shall not exceed [insert at the Closing: the amount in U.S.
dollars equal to the shareholders' equity of Company, determined in accordance
with generally accepted accounting principles, as of the latest quarter ended
prior to the Closing, adjusted to give effect to the spin-off of Spinco by the
Company on the Distribution Date]. As used in this Agreement, the term
"Protected Parties"
shall mean Spinco and each person who is entitled to the benefits of Section
6.14 or Section 6.16 of the Merger Agreement.
2. This guarantee is a guarantee of payment, performance and compliance
when due, and is in no way conditional or contingent upon any attempt to collect
from Company or upon any other event, contingency or circumstance whatsoever
(other than the condition that Company fail to pay or perform its obligations
when due or when required to be performed).
3. The covenants and agreements of the Guarantor set forth in this
Guarantee and the Guarantor's obligations under this Agreement shall be absolute
and unconditional, shall not be subject to any counterclaim, setoff, deduction,
diminution, abatement, recoupment, suspension, deferment, reduction or defense
(other than full and strict compliance by the Guarantor with its obligations
hereunder) based upon any claim that the Guarantor or any other person or entity
have against Company or any other person or entity, and shall remain in full
force and effect without regard to, and shall not be released, discharged or in
any way affected by, any circumstance or condition whatsoever (whether or not
the Guarantor shall have any knowledge or notice thereof). Subject to the
proviso to the first sentence of Section 1 of this Agreement, the obligations of
the Guarantor set forth in this Guarantee constitute the full recourse
obligations of the Guarantor enforceable against it to the full extent of all of
the Guarantor's assets and properties, notwithstanding any provision in any
agreement limiting the liability of any other person or entity.
4. The Guarantor hereby waives notice of, and consents to, any change in
the time, manner or place of payment or performance, and any other amendment or
waiver, or any consent to departure or other indulgence, from time to time
granted to Company by Spinco or any other Protected Party with respect to the
matters guaranteed hereunder, and the Guarantor hereby waives notice of
nonperformance or nonpayment, and, except as provided herein, all other notices
and demands whatsoever and any requirement that Spinco or any other Protected
Party protect, secure, perfect or insure any security interest or lien or any
property subject thereto or exhaust any right.
5. No amendment or waiver of any provision of this Guarantee nor any
consent to any departure by the Guarantor herefrom shall in any event be
effective unless the same shall be in writing and signed by the party or parties
against whom such amendment or waiver is sought to be enforced, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. No failure on the part of any party to
exercise or delay in exercising any right hereunder shall operate as a waiver of
any of, nor shall any single or partial exercise of any right hereunder preclude
any other or further exercise thereof or the exercise of, any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
6. The Guarantor represents and warrants to Spinco and to the other
Protected Parties as follows:
(a) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Iowa. The Guarantor is duly
qualified to do business in each
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jurisdiction in which the ownership of properties by the Guarantor and the
business and activities of the Guarantor require such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the financial condition, business or results of operation of the Guarantor or on
the ability of the Guarantor to perform its obligations under this Guarantee;
(b) The Guarantor has full power, authority and legal right to own its
properties and to carry on its business as now conducted and is duly authorized
and empowered to execute, deliver and perform its obligations under this
Guarantee; and
(c) This Guarantee has been duly authorized, executed and delivered by
the Guarantor and constitutes a legal, valid and binding instrument, enforceable
against the Guarantor in accordance with its terms, subject in the case of the
enforcement of remedies to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforceability of creditors'
rights generally.
7. This Guarantee is a continuing guarantee and shall remain in full
force and effect until payment in full of the obligations and all other amounts
payable under this Guarantee, and shall (a) be binding upon the Guarantor, its
successors and assigns, and (b) inure to the benefit of and be enforceable by
(i) any successors of Spinco or any transferee of all or substantially all of
the assets of Spinco, and (ii) any successors, heirs, executors or beneficiaries
of any of the other Protected Parties.
8. Any provision of this Guarantee which is prohibited or unenforceable in
any jurisdiction shall be, as to such jurisdiction, ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition on unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9. This Guarantee shall be governed, construed, applied and enforced in
accordance with the laws of the State of Delaware, and no defense given or
allowed by the laws of any other state or country shall be interposed in any
action hereon unless such defense is also given or allowed by the laws of the
State of Delaware.
10. This Agreement is not intended to confer upon any person other than
the parties hereto and the other Protected Parties any rights or remedies
hereunder.
11. This Guarantee may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. This Guarantee shall
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that the parties
need not sign the same counterpart.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Guarantee to
be executed on its behalf by its duly authorized officer.
AEGON USA, INC.
By:
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Name:
Title:
PROVIDIAN CORPORATION
By:
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Name:
Title:
PROVIDIAN BANCORP, INC.
By:
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Name:
Title:
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