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Execution Copy
EXHIBIT 10.52
AMENDMENT NO. 7 TO
STOCK PURCHASE AND EXCHANGE AGREEMENT
THIS AMENDMENT NO. 7 (this "Amendment"), dated as of the 31st day of
October, 2000, by and among GE Financial Assurance Holdings, Inc., a Delaware
corporation, Phoenix Group Holdings, Inc., a Connecticut corporation, PM
Holdings, Inc., a Connecticut corporation, and GE Life and Annuity Assurance
Company, a Virginia corporation, to the Stock Purchase and Exchange Agreement,
dated as of December 9, 1999, entered into by and among the parties hereto
(together with all amendments thereto prior to the date hereof, the "SPEA"),
recites and provides as follows. All capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the SPEA.
WITNESSETH:
WHEREAS, the parties hereto entered into the SPEA; and
WHEREAS, pursuant to Section 2.4 of the SPEA the parties agreed that if
the Approvals required for the sale of PDS by PGH to GEFA set forth on Schedule
3.4(b) to the SPEA had not been obtained by the Second Closing Date, the parties
would negotiate an amendment to the SPEA to provide for the sale of PDS once
those Approvals had been obtained; and
WHEREAS, the Approvals required for the sale of PDS by PGH to GEFA have
been obtained; and
WHEREAS, the parties wish to further amend the SPEA in the manner set
forth herein, to provide for the sale of PDS by PGH to GEFA,
NOW THEREFORE, in exchange for the undertakings contained in the SPEA, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. AMENDMENTS
1.1. Section 1.1 of the SPEA is hereby amended to add the following
defined terms:
"THIRD CLOSING" shall mean the closing of the sale and
purchase of PDS.
"THIRD CLOSING DATE" shall mean the date upon which the
Third Closing occurs, which date shall be October 31, 2000.
1.2. Section 2.4 of the SPEA is hereby amended to add the following
Subsection (c):
(c) The Third Closing will occur on the Third Closing Date if
the conditions set forth in Sections 9.8, 9.9 and 9.10 are fulfilled or
waived. At the Third Closing:
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(i) PGH will deliver to GEFA stock certificates
representing the Purchased PDS Shares, endorsed or
accompanied by stock powers in favor of GEFA;
(ii) GEFA will pay to PGH by wire transfer of immediately
available funds to such accounts as are designated by
PGH an amount equal to the PDS Purchase Price; and
(iii) PMH will deliver to GEFA any amendments to the
Schedules; provided, however, that until the Third
Closing, any amendments to the Schedules with respect
to any matter that, if existing or occurring at or
prior to the Third Closing Date, would have been
required to be set forth or described in such a
Schedule or that is necessary to complete or correct
any information in any representation or warranty
contained in Article III will not be taken into account
for purposes of determining the fulfillment of the
condition precedent set forth in Section 9.9(a). For
all other purposes, including, without limitation,
Section 10.2(b), each such additional amendment and
supplement shall be given effect.
1.3. Article VII of the SPEA -Tax Matters shall remain in full force and
effect with respect to the transactions completed at the Second Closing. With
respect solely to the transactions to be completed at the Third Closing,
however, the provisions of Article VII of the SPEA are hereby incorporated into
this Amendment with the following revisions:
All references to "SECOND CLOSING" shall mean the "THIRD
CLOSING".
All references to "SECOND CLOSING DATE" shall mean the
"THIRD CLOSING DATE".
1.4. Section 7.12 of the SPEA is hereby amended and restated in its
entirety as set forth below:
For purposes of this Article VII, the term "PGH
SUBSIDIARIES" shall mean: (i) with respect to the transactions
completed at the Second Closing, only those PGH Subsidiaries that
are actually acquired under this Agreement as of the Second
Closing Date, and (ii) with respect to the transactions completed
at the Third Closing, PDS and CA Benefits.
1.5. Article VIII of the SPEA shall remain in full force and effect with
respect to the PGH Business Employees and the PGH Subsidiary Employees who are
employees of PDS or CA Benefits as of the Third Closing Date.
1.6. Section 9.1 of the SPEA is hereby amended by inserting the
following sentence before the last sentence of such section:
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The respective obligations set forth herein to be
performed by PMH, PGH or GEFA at the Third Closing shall be subject
to the fulfillment, on or before the Third Closing Date, in the
case of PMH and PGH, of the conditions set forth in Sections 9.8
and 9.9, and in the case of GEFA, of the conditions set forth in
Sections 9.8 and 9.10.
1.7. Article IX of the SPEA is hereby amended to add the following
Sections 9.8, 9.9 and 9.10:
9.8 Conditions to Obligations of All Parties at the Third
Closing.
(a) Consents. All third party consents listed on
Schedules 3.4(b) and 4.6(b) shall have been obtained and this
Agreement and the consummation of the transactions contemplated
hereby shall have been approved by the regulatory authorities or
Government Authorities of the Required Jurisdictions (or shall not
have been disapproved by such authorities and the time period
during which such authorities may, under applicable Law, disapprove
this Agreement and the consummation of such transactions shall have
lapsed), the parties shall have received reasonably satisfactory
evidence of such Approvals (or non-disapprovals) and such Approvals
(or non-disapprovals) shall not be subject to conditions that are
unreasonably burdensome.
(b) No Injunction. There shall not be in effect any
injunction or other order issued by a court of competent
jurisdiction restraining or prohibiting the consummation of the
transactions contemplated by this Agreement.
9.9 Conditions to Obligations of PMH and PGH at the Third
Closing.
(a) Representations, Warranties and Actions of GEFA. The
representations and warranties set forth in Sections 4.1, 4.6
(solely with respect to GEFA), 4.21 (solely with respect to the
Purchased PDS Shares), and 4.22 (solely with respect to GEFA) shall
be true and correct in all material respects at and as of the Third
Closing Date. GEFA and its Affiliates shall have duly performed and
complied in all material respects with all obligations herein
required to be performed or complied with by them at or before the
Third Closing, including without limitation the actions required in
Article V (solely with respect to GEFA) and Article VI (solely with
respect to GEFA). All actions to be taken by GEFA in connection
with the consummation of the transactions contemplated hereby and
all certificates, instruments and other documents required to
effect the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to PMH and PGH.
(b) Officer's Certificate. GEFA shall have delivered to
PMH and PGH a certificate, dated the Third Closing Date and signed
by its President or a Vice President, as to the fulfillment of the
conditions set forth in Section 9.9(a).
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9.10 Conditions to Obligations of GEFA at the Third Closing.
(a) Representations, Warranties and Actions of PMH and
PGH. The representations and warranties set forth in Article III
(solely with respect to PMH, PGH, PDS, and CA Benefits) and Article
VII (solely with respect to PMH, PGH, PDS, and CA Benefits), to the
extent they are qualified by a PGH Material Adverse Effect or
otherwise qualified as to materiality, shall be true and correct in
all respects at and as of the Third Closing Date and all other
representations and warranties set forth in Article III (solely
with respect to PMH, PGH, PDS, and CA Benefits) and Article VII
(solely with respect to PMH, PGH, PDS, and CA Benefits) shall be
true and correct in all material respects at and as of the Third
Closing Date. PMH and PGH shall have duly performed and complied in
all material respects with all agreements contained herein required
to be performed or complied with by either of them at or before the
Third Closing, including without limitation the actions required in
Article V (solely with respect to PMH, PGH, PDS, and CA Benefits)
and Article VI (solely with respect to PMH, PGH, PDS, and CA
Benefits). All actions to be taken by PMH or PGH in connection with
the consummation of the transactions contemplated hereby and all
certificates, instruments and other documents required to effect
the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to GEFA.
(b) Officer's Certificate. Each of PMH and PGH shall have
delivered to GEFA a certificate, dated the Third Closing Date and
signed by its President or a Vice President, as to the fulfillment
of the conditions set forth in Section 9.10(a).
(c) Resignations. Those directors and officers of each of
PDS and CA Benefits specified in a written notice delivered by GEFA
to PGH as of the Third Closing shall have submitted their
resignations from the Boards of Directors of each of PDS and CA
Benefits, as the case may be, effective as of the Third Closing
Date.
(d) No Material Adverse Effect. Since June 30, 1999,
there shall have been no material adverse effect on PDS or CA
Benefits, individually or taken as a whole, except for any effect
resulting from (i) general conditions (including Laws) applicable
to the industries in which PDS or CA Benefits operates, or (ii)
general economic, financial or market conditions.
(e) Termination of Temporary Services Agreement. The
Temporary Services Agreement, effective as of April 1, 2000, by and
among PAL, PDS and CA Benefits shall have been terminated.
(f) Termination of Benefit Plans. Pursuant to Section 2.3
of Amendment No. 3 to the SPEA, PMH and PGH shall have caused the
termination of the benefit plans of CA Benefits.
1.8. Article X of the SPEA is hereby amended to add the following
Section 10.3:
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10.3 Third Closing.
For purposes of this Article X and with respect to all
matters directly or indirectly related to PDS or CA Benefits, all
references to the Second Closing and the Second Closing Date shall
mean the Third Closing and the Third Closing Date, respectively,
and all references to "both Closings" shall include the First
Closing, the Second Closing and the Third Closing.
1.9. Section 10.2(b)(ii) of the SPEA is hereby amended to add the
following new subsection (F) to the end of the first sentence:
; and (F) arising directly or indirectly out of the failure by CA
Benefits to address under applicable abandoned property statutes
uncashed checks of various types from the years 1994 through 1998.
2. MISCELLANEOUS
2.1. PGH Business Assets.
The PGH Business Assets as defined in the Recitals to the SPEA do
not include any items of personal or real property used in the
conduct of the business of PDS or CA Benefits.
2.2. Computer Services Agreement.
To the extent that PGH is currently providing computer services to
any of the former PGH Subsidiaries pursuant to the Computer
Services Agreement, dated as of December 9, 1999, by and between
GEFA and PGH, PGH shall also provide such services to PDS and CA
Benefits; provided, however, that PGH shall not be required to
provide any services to PDS or CA Benefits that it is not providing
as of the date hereof.
2.3. No Other Amendments.
Other than as expressly set forth herein, the SPEA remains
unaltered and in full force and effect.
2.4. Counterparts.
This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together
shall constitute one and the same amendment.
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2.5. Governing Law.
This Amendment shall be construed, performed and enforced in
accordance with the laws of the State of Connecticut without regard
to the conflicts of law principles of such state.
[SIGNATURE APPROVAL ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to
be executed by their undersigned duly authorized officers.
PM HOLDINGS, INC. GE FINANCIAL ASSURANCE
HOLDINGS, INC.
/s/ Xxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: Senior Vice President,
Secretary, and
General Counsel
PHOENIX GROUP HOLDINGS, INC. GE LIFE AND ANNUITY ASSURANCE
COMPANY
/s/ Xxxxxxxxxxx Xxxxxx /s/ Xxxx X. Xxxxx
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Name: Xxxxxxxxxxx Xxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: Senior Vice President
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