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EXHIBIT 2.2
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STOCKHOLDER AGREEMENT
between
PROTECTIVE LIFE CORPORATION
and
XXXX X. XXXXXXXX
Dated as of March 10, 1998
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STOCKHOLDER AGREEMENT dated as of March 10, 1998, between
PROTECTIVE LIFE CORPORATION, a Delaware corporation ("Purchaser"), and XXXX X.
XXXXXXXX, the "Stockholder").
WHEREAS Purchaser, a Delaware corporation and a wholly owned
subsidiary of Purchaser ("Sub"), and United Dental Care, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement"; capitalized terms used but not defined herein shall
have the meanings set forth in the Merger Agreement) providing for the merger
of the Company with and into Sub (the "Merger"), upon the terms and subject to
the conditions set forth in the Merger Agreement; and
WHEREAS the Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of such number of shares of Common Stock, par value $0.10 per share, of
the Company (the "Company Common Stock") set forth opposite his name on
Schedule A attached hereto (such shares of Company Common Stock, together with
any other shares of capital stock of the Company acquired by such Stockholder
after the date hereof and during the term of this Agreement and the shares
listed on Schedule A hereto as to which beneficial ownership is disclaimed and
voting and investment control is exercised by others ("Others"), being
collectively referred to herein as the "Subject Shares"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Purchaser has requested that the Stockholder enter into this
Agreement;
NOW, THEREFORE, to induce Purchaser to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Representations and Warranties of the Stockholder.
The Stockholder hereby represents and warrants to Purchaser as of the date
hereof as follows:
(a) Authority. The Stockholder has all requisite power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder enforceable in accordance with its terms. The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms
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hereof will not, conflict with, or result in any violation of, or default (with
or without notice or lapse of time or both) under any provision of, any trust
agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, decree, statute, law, ordinance, rule or regulation applicable
to the Stockholder or to the Stockholder's property or assets. If the
Stockholder is married and the Stockholder's Subject Shares constitute
community property or otherwise need spousal or other approval for this
Agreement to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse, enforceable against such spouse in
accordance with its terms. The Stockholder agrees to deliver to Purchaser upon
request a proxy substantially in the form attached hereto as Exhibit A, which
proxy shall be coupled with an interest and irrevocable to the extent permitted
under Delaware law, with the total number of such Stockholder's Subject Shares
correctly indicated thereon.
(b) The Subject Shares. The Stockholder is the record
and beneficial owner of, and has good and marketable title to, the Subject
Shares set forth opposite his name on Schedule A attached hereto, free and
clear of any claims, liens, encumbrances and security interests whatsoever.
The Stockholder does not own, of record or beneficially, any shares of capital
stock of the Company other than the Subject Shares set forth opposite his or
its name on Schedule A attached hereto. The Stockholder has the sole right to
vote such Subject Shares, and none of such Subject Shares is subject to any
voting trust or other agreement, arrangement or restriction with respect to the
voting of such Subject Shares, except as contemplated by this Agreement (other
than the Stockholders Agreement dated September 16, 1994 among Stockholder,
Xxxxxx X. Xxxxxxxx and certain other stockholders of the Company). The
Stockholder does not own any options or warrants to acquire any shares of
Company Common Stock or any other securities convertible into or exchangeable
for Company Common Stock other than options to acquire 12,000 shares of Company
Common Stock.
2. Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to the Stockholder that Purchaser has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Purchaser, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action on the part of Purchaser. This Agreement has been duly executed and
delivered by Purchaser and constitutes a valid and binding obligation of
Purchaser enforceable in accordance with its terms. The execution and delivery
of this Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or result
in any violation of, or default (with or without notice or lapse of time or
both) under any provision of, the
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certificate of incorporation or by-laws of Purchaser, any trust agreement, loan
or credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to Purchaser or
to Purchaser's property or assets.
3. Covenants of the Stockholder. Until the termination
of this Agreement in accordance with Section 7, the Stockholder agrees as
follows:
(a) At any meeting of stockholders of the Company called
to vote upon the Merger and the Merger Agreement or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the Merger and the Merger
Agreement is sought, the Stockholder shall vote (or cause to be voted) (and
shall use his best efforts to cause Others to vote) the Subject Shares in favor
of the Merger, the adoption of the Merger Agreement and the approval of the
terms thereof and each of the other transactions contemplated by the Merger
Agreement.
(b) At any meeting of stockholders of the Company or at
any adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the Stockholder shall
vote (or cause to be voted) (and shall use his best efforts to cause Others to
vote) the Subject Shares against (i) any merger agreement or merger (other than
the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by the Company or any other takeover proposal, as such term
is defined in Section 7.2(e) of the Merger Agreement (a "Takeover Proposal") or
(ii) any amendment of the Company's certificate of incorporation or by-laws or
other proposal (including with respect to the election of directors) or
transaction involving the Company or any of its subsidiaries, which amendment
or other proposal or transaction would in any manner impede, frustrate, prevent
or nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement. Subject to Section 9, the Stockholder
further agrees not to commit or agree to take any action inconsistent with the
foregoing.
(c) Except as provided in the immediately succeeding
sentence of this Section 3(c), the Stockholder agrees not to (and to use his
best efforts to cause Others not to) (i) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"), or enter
into any contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, the Subject Shares to any person
other than pursuant to the terms of the Merger, (ii) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise, in connection
with, directly or indirectly, any Takeover Proposal. Notwithstanding the
foregoing, the
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Stockholder shall have the right, for estate planning purposes, to Transfer
Subject Shares to a transferee following the due execution and delivery to
Purchaser by each transferee of a counterpart to this Agreement.
(d) Subject to the terms of Section 9, during the term of
this Agreement, the Stockholder shall not, nor shall it permit any investment
banker, attorney or other adviser or representative of the Stockholder to, (i)
directly or indirectly solicit, initiate or encourage the submission of, any
Takeover Proposal or (ii) directly or indirectly participate in any discussions
or negotiations regarding, or furnish to any person any information with
respect to, or take any other action to facilitate any inquiries or the making
of any proposal that constitutes, or may reasonably be expected to lead to, any
Takeover Proposal.
(e) Until after the Merger is consummated or the Merger
Agreement is terminated, the Stockholder shall use all reasonable efforts (and
shall use his best efforts to cause Others) to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
Company and Purchaser in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by the Merger Agreement.
4. Further Assurances. Stockholder will (and will use
his best efforts to cause Others to), from time to time, execute and deliver,
or cause to be executed and delivered, such additional or further consents,
documents and other instruments as Purchaser may reasonably request for the
purpose of effectively carrying out the transactions contemplated by this
Agreement.
5. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of the other parties, except that
Purchaser may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to any direct or indirect wholly owned
subsidiary of Purchaser. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
6. Termination. This Agreement shall terminate upon the
earlier of (a) the termination of the Merger Agreement in accordance with the
terms thereof and (b) the Effective Time of the Merger.
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7. General Provisions.
(a) Amendments. This Agreement may not be amended
altered or supplemented except by an instrument in writing signed by each of
the parties hereto.
(b) Notice. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or sent by overnight courier (providing proof of delivery) to Purchaser in
accordance with Section 10.2 of the Merger Agreement and to the Stockholder at
his address set forth on Schedule A attached hereto (or at such other address
for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
(d) Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the counterparts have
been signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This
Agreement (including the documents and instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
8. Stockholder Capacity. No person executing this
Agreement who is or becomes during the term hereof a director or officer of the
Company makes any agreement or understanding herein in his capacity as such
director or officer. Stockholder signs solely in his capacity as the record
holder and beneficial owner of such Stockholder's Subject Shares and nothing
herein shall limit or affect any actions taken by a Stockholder in his capacity
as an officer or director of the Company to the extent specifically permitted
by the Merger Agreement.
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9. Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of Delaware or in a Delaware state court,
this being in addition to any other remedy to which they are entitled at law or
in equity. In addition, each of the parties hereto (i) consents to submit such
party to the personal jurisdiction of any Federal court located in the State of
Delaware or any Delaware state court in the event any dispute arises out of
this Agreement or any of the transactions contemplated hereby, (ii) agrees that
such party will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (iii) agrees that such
party will not bring any action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court sitting in the
state of Delaware or a Delaware state court and (iv) waives any right to trial
by jury with respect to any claim or proceeding related to or arising out of
this Agreement or any of the transactions contemplated hereby.
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IN WITNESS WHEREOF, Purchaser has caused this Agreement to be
signed by its officer thereunto duly authorized and the Stockholder has signed
this Agreement, all as of the date first written above.
PROTECTIVE LIFE CORPORATION,
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: President and Chief Operating Officer
/s/ Xxxx X. Xxxxxxxx
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XXXX X. XXXXXXXX
Acknowledged and agreed as of the date first above
written:
/s/ Rose Xxxxx Xxxxxxxx
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ROSE XXXXX XXXXXXXX
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SCHEDULE A
Shares of Common
Name Stock
---- ---------
Xxxx X. Xxxxxxxx 458,500 shares
0000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Others 778,500 shares
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