Exhibit 2
VOTING AND STANDSTILL AGREEMENT
THIS VOTING AND STANDSTILL AGREEMENT (the "Agreement"), dated as of
May 3, 1999, is made by and among Hilb, Xxxxx and Xxxxxxxx Company, a Virginia
corporation (the "Company"), PM Holdings, Inc., a Connecticut corporation
("Holdings"), and Phoenix Home Life Mutual Insurance Company, a New York life
insurance company ("PHL").
W I T N E S S E T H:
WHEREAS, the Company, Holdings, PHL and Xxxxxx X. Xxxxxxx, III entered
into a Stock Purchase Agreement dated March 29, 1999 (the "Stock Purchase
Agreement"), under which the Company agreed to acquire from Holdings and Xxxxxx
X. Xxxxxxx, III all of the issued and outstanding shares of the capital stock of
American Phoenix Corporation, a Connecticut corporation ("APC"); and
WHEREAS, pursuant to the Stock Purchase Agreement, (i) Holdings
acquired 865,042 shares of the Company's Common Stock (as hereinafter defined)
and $22,000,000 principal amount of the Company's Subordinated Debentures (as
hereinafter defined), and (ii) PHL acquired $10,000,000 principal amount of the
Company's Subordinated Debentures; and
WHEREAS, the Subordinated Debentures acquired by Holdings and PHL
pursuant to the Stock Purchase Agreement are convertible into shares of Common
Stock pursuant to the terms of the Subordinated Debentures; and
WHEREAS, the parties to this Agreement desire to establish certain
rights and obligations in connection with the relationship of Holdings and PHL
to the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and in the Stock Purchase Agreement, the Company,
Holdings and PHL hereby agree as follows:
ARTICLE I
DEFINITIONS; REPRESENTATIONS AND WARRANTIES
SECTION 1.1. DEFINITIONS. Except as otherwise specified herein,
capitalized terms used in this Agreement shall have the respective meanings
assigned to such terms in the Stock Purchase Agreement. For purposes of this
Agreement, the following terms have the following meanings:
(a) "Adjusted Outstanding Shares" shall mean, at any time and with
respect to the determination of (i) the Holdings Ownership Percentage as it
relates to Holdings and its Affiliates, (ii) the Standstill Percentage as it
relates to Holdings and its Affiliates, and (iii) any
(Page 17 of 58 pages)
other percentage of the beneficial ownership of Common Stock as it relates to a
Person or Group, the total number of shares of Common Stock then issued and
outstanding together with the total number of shares of Common Stock not then
issued and outstanding that would be outstanding if all then existing
Subordinated Debentures had been converted.
(b) "Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as in effect on the date of this Agreement, and shall include, with
respect to a determination of the Affiliates of Holdings, any Affiliate of PHL;
PROVIDED, however, that (i) PXP and its subsidiaries and (ii) any Person
registered as an investment company under the Investment Company Act of 1940, as
amended, which might otherwise be deemed to be an "affiliate" of Holdings or PHL
within the meaning of Rule 12b-2 under the Exchange Act (a "Related Investment
Company"), shall not be deemed to be Affiliates of Holdings or PHL for purposes
of this Agreement to the extent their respective businesses consist principally
of investing in securities, investment management and/or advisory services, and
any shares of Common Stock or other equity securities of the Company acquired,
or caused to be acquired, by PXP and its subsidiaries or such Related Investment
Company in the conduct of their respective businesses in the ordinary course for
the account of, or for the benefit of, clients of PXP or its subsidiaries,
policyholders or investors (other than Holdings, PHL or their Affiliates), and
not with the purpose of avoiding the provisions of Section 3.1 below, shall not
be deemed, for purposes of this Agreement, to be beneficially owned by Holdings,
PHL or their Affiliates.
(c) "Beneficial ownership," "beneficial owner" and "beneficially own"
shall have the meanings ascribed to such terms in Rule 13d-3 under the Exchange
Act as in effect on the date of this Agreement; PROVIDED that Holdings and each
of its Affiliates and any Person or Group shall be deemed to be the beneficial
owners of any shares of Common Stock that Holdings or such Affiliate, Person
and/or Group, as the case may be, has the right to acquire within sixty (60)
days after the determination date pursuant to any other agreement, arrangement
or understanding or upon the exercise of conversion or exchange rights,
warrants, options or otherwise, including but not limited to any right to
acquire shares of Common Stock through the conversion of the Subordinated
Debentures.
(d) "Board of Directors" shall mean the Board of Directors of the
Company.
(e) "Business Day" shall mean any day on which banking institutions in
New York, New York are customarily open for the purpose of transacting business.
(f) "Common Stock" shall mean the Common Stock, without par value, of
the Company.
(g) "Continuing Directors" shall mean the members of the Board of
Directors of the Company immediately prior to the Closing Date and any future
members of the Board of Directors nominated by the Board of Directors; PROVIDED,
however, that no Holdings Director shall constitute a Continuing Director or be
counted in determining the presence of a quorum of Continuing Directors.
(Page 18 of 58 pages)
(h) "Control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
(i) "Group" shall have the meaning comprehended by Section 13(d)(3) of
the Exchange Act as in effect on the date of this Agreement.
(j) "Holdings Designee" shall mean a member of the Board of Directors
of the Company who was designated by Holdings for nomination pursuant to this
Agreement, but shall not include Xxxxxx X. Xxxxxxxxx or Xxxxxx X. Xxxxxxx, III.
(k) "Holdings Directors" shall mean Xxxxxx X. Xxxxxxxxx and the
Holdings Designee.
(l) "Holdings Ownership Percentage" shall mean, at any time, the
percentage of the Adjusted Outstanding Shares that is beneficially owned in the
aggregate by Holdings, PHL and their Affiliates. Immediately following the
consummation of the transactions contemplated by the Stock Purchase Agreement,
the Holdings Ownership Percentage was 15.6%.
(m) "Holdings Securities" shall mean collectively (i) the 865,042
shares of Common Stock that Holdings acquired pursuant to the terms of the Stock
Purchase Agreement, (ii) the Subordinated Debentures acquired by Holdings and
PHL pursuant to the terms of the Stock Purchase Agreement, (iii) the shares of
Common Stock into which the Subordinated Debentures are convertible pursuant to
the terms of the Subordinated Debentures and (iv) any other shares of Common
Stock that Holdings, PHL and their Affiliates may acquire from time to time,
including without limitation such additional shares of Common Stock that the
Company may issue with respect to such shares pursuant to any stock splits,
stock dividends, recapitalizations, restructurings, reclassifications or similar
transactions.
(n) "HRH Designee" shall mean a member of the Board of Directors of
the Company who was designated by the Continuing Directors for appointment or
nomination pursuant to this Agreement.
(o) "Indenture" shall mean the Indenture, dated May 3, 1999, executed
by the Company and Crestar Bank, as Trustee, in connection with the issuance of
the Subordinated Debentures.
(p) "NYSE Rules" shall mean the rules and regulations of the New York
Stock Exchange as in effect from time to time.
(q) "Person" shall have the meaning set forth in Section 3(a)(9) of
the Exchange Act as in effect on the date of this Agreement, and shall include,
without limitation, corporations, partnerships, limited liability companies and
trusts.
(Page 19 of 58 pages)
(r) "PXP" shall mean Phoenix Investment Partners, Ltd., a Delaware
corporation, approximately 60% of the common stock of which is currently owned
by Holdings.
(s) "Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated May 3, 1999, executed by the Company, Holdings and PHL in
connection with the Stock Purchase Agreement.
(t) "Subordinated Debentures" shall mean the Company's 5.25%
Convertible Subordinated Debentures (Due 2014), in the aggregate principal
amount of $32,000,000, acquired by Holdings and PHL pursuant to the Stock
Purchase Agreement.
(u) "Standstill Percentage" shall mean, at any time, 20.0% of the
Adjusted Outstanding Shares.
(v) "Transfer" shall mean sell, transfer, assign, pledge, hypothecate,
give away or in any manner dispose of any Common Stock or Subordinated
Debentures.
SECTION 1.2. REPRESENTATIONS AND WARRANTIES OF HOLDINGS. Holdings
represents and warrants to the Company as follows:
(a) Holdings is a corporation duly organized, validly existing and in
good standing under the laws of the State of Connecticut.
(b) Except for the Holdings Securities, neither Holdings nor any of
its Affiliates beneficially owns any Common Stock or any options, warrants or
rights of any nature (including conversion and exchange rights) to acquire
beneficial ownership of any Common Stock.
(c) Holdings has full legal right, power and authority to enter into
and perform this Agreement, and the execution and delivery of this Agreement by
Holdings have been duly authorized by all necessary corporate action on behalf
of Holdings. This Agreement is enforceable against Holdings in accordance with
its terms, subject to bankruptcy, reorganization, insolvency and other similar
laws affecting the enforcement of creditors' rights generally and to general
principles of equity (regardless of whether considered in a proceeding in equity
or an action at law).
(d) The execution, delivery and performance of this Agreement by
Holdings does not and will not conflict with or constitute a violation of or
default under the Charter or Bylaws (or comparable documents) of Holdings, or
any statute, law, regulation, order or decree applicable to Holdings, or any
contract, commitment, agreement, arrangement or restriction of any kind to which
Holdings is a party or by which Holdings is bound, other than such violations as
would not prevent or materially delay the performance by Holdings of its
obligations hereunder or otherwise subject the Company to any material claim or
liability.
SECTION 1.3. REPRESENTATIONS AND WARRANTIES OF PHL. PHL represents and
warrants to the Company as follows:
(Page 20 of 58 pages)
(a) PHL is a life insurance company duly organized, validly existing
and in good standing under the laws of the State of New York.
(b) PHL has full legal right, power and authority to enter into and
perform this Agreement, and the execution and delivery of this Agreement by PHL
have been duly authorized by all necessary corporate action on behalf of PHL.
This Agreement is enforceable against PHL in accordance with its terms, subject
to bankruptcy, reorganization, insolvency and other similar laws affecting the
enforcement of creditors' rights generally and to general principles of equity
(regardless of whether considered in a proceeding in equity or an action at
law).
(c) The execution, delivery and performance of this Agreement by PHL
does not and will not conflict with or constitute a violation of or default
under the Charter or Bylaws (or comparable documents) of PHL, or any statute,
law, regulation, order or decree applicable to PHL, or any contract, commitment,
agreement, arrangement or restriction of any kind to which PHL is a party or by
which PHL is bound, other than such violations as would not prevent or
materially delay the performance by PHL of its obligations hereunder or
otherwise subject the Company to any material claim or liability.
SECTION 1.4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company hereby represents and warrants to Holdings and PHL as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Virginia.
(b) The Company has full legal right, power and authority to enter
into and perform this Agreement, and the execution and delivery of this
Agreement by the Company have been duly authorized by all necessary corporate
action on behalf of the Company. This Agreement is enforceable against the
Company in accordance with its terms, subject to bankruptcy, reorganization,
insolvency and other similar laws affecting the enforcement of creditors' rights
generally and to general principles of equity (regardless of whether considered
in a proceeding in equity or an action at law).
(c) The execution, delivery and performance of this Agreement by the
Company does not and will not conflict with or constitute a violation of or
default under the Charter or Bylaws of the Company, or any statute, law,
regulation, order or decree applicable to the Company, or any contract,
commitment, agreement, arrangement or restriction of any kind to which the
Company is a party or by which the Company is bound, other than such violations
as would not prevent or materially delay the performance by the Company of its
obligations hereunder or otherwise subject Holdings or PHL to any material claim
or liability.
ARTICLE II
BOARD REPRESENTATION
(Page 21 of 58 pages)
SECTION 2.1. INITIAL BOARD REPRESENTATION. On the later of the Closing
Date or the date of the Company's 1999 annual meeting of shareholders, the
Company will (a) take such action as may be necessary to increase the size of
the Board of Directors from nine (9) to thirteen (13) directors, (b) upon
receipt of executed letter agreements regarding resignation in the form attached
to this Agreement as Exhibit A, fill two (2) of the vacancies created thereby
with Xxxxxx X. Xxxxxxx, III and the Holdings Designee in accordance with the
applicable provisions of the Charter and Bylaws of the Company, and (c) fill the
remaining two (2) vacancies created thereby with Xxxxxx X. Xxxxxxxxx and the HRH
Designee in accordance with the applicable provisions of the Company's Charter
and Bylaws. With respect to the four (4) directors appointed to the Board of
Directors pursuant to this Section 2.1, the Company will (i) appoint Xxxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxxxx, III to the Class whose current term expires in
2000, the Holdings Designee to the Class whose current term expires in 2001 and
the HRH Designee to the Class whose current term expires in 2002, and (ii)
subject to the right of Holdings to designate a new Holdings Designee as a
substitute for the initial Holdings Designee, nominate and recommend each for
election as a director to the respective Class designated above at the next
annual meeting of the Company's shareholders following such appointments;
PROVIDED that, if any such director is not elected by the shareholders of the
Company, the Company shall have no further obligations under this Section 2.1
for the applicable year; and PROVIDED further that the Company shall be under no
obligation to appoint or recommend for election the Holdings Designee or Xxxxxx
X. Xxxxxxx, III to the Board of Directors unless and until it has received from
such director an executed letter agreement regarding resignation in the form
attached to this Agreement as Exhibit A. The HRH Designee shall be an executive
officer of the Company at the time of appointment or nomination by the Company.
Any person designated by Holdings to be the Holdings Designee shall be
reasonably acceptable to the Continuing Directors, and, if found unacceptable by
the Continuing Directors (i) the Company shall not be obligated to appoint or
recommend for election any such person to the Board of Directors and (ii)
Holdings shall be entitled to designate a replacement that is reasonably
acceptable to the Continuing Directors.
SECTION 2.2. CONTINUING BOARD REPRESENTATION.
(a) Except as otherwise expressly provided by the provisions of this
Article II, the Company agrees that, during the term of this Agreement, it will
not take or recommend to its shareholders any action that would cause the Board
of Directors to consist of any number of directors other than thirteen (13)
directors; PROVIDED, however, that the Company may increase the number of
directors on the Board of Directors (i) in connection with the consummation of
business combination transactions wherein the Company has agreed to increase the
size of the Board of Directors or (ii) with the consent of Holdings, which will
not be unreasonably withheld; and PROVIDED further, that the Company may reduce
the number of directors on the Board of Directors in the event of the death,
resignation or removal of any director pursuant to the Company's Bylaws or this
Agreement (unless such death, resignation or removal relates to the Holdings
Designee and Holdings has the right under this Article II to designate a
replacement).
(b) Subject to the provisions of Sections 2.2(a), 2.2(c) and 2.5
hereof regarding reductions in the size of the Board of Directors and any
required resignation of the Holdings Designee, during the term of this Agreement
the Company will nominate and recommend the
(Page 22 of 58 pages)
Holdings Directors for election in the applicable year in which their respective
Class terms expire; PROVIDED that, if any such Holdings Director is not elected
by the shareholders of the Company, the Company shall have no further
obligations under this Section 2.2(b) for the applicable year; and PROVIDED
further that the Company shall be under no obligation to nominate or recommend
for election the Holdings Designee to the Board of Directors unless and until it
has received from such director an executed letter agreement regarding
resignation in the form attached to this Agreement as Exhibit A. Any person
designated by Holdings to be a Holdings Designee shall be reasonably acceptable
to the Continuing Directors, and, if found unacceptable by the Continuing
Directors (i) the Company shall not be obligated to appoint or recommend for
election any such person to the Board of Directors and (ii) Holdings shall be
entitled to designate a replacement that is reasonably acceptable to the
Continuing Directors.
(c) The Company shall have no obligation to nominate or recommend a
Holdings Director for election to the Board of Directors after the termination
of this Agreement pursuant to Article VI hereof or upon the occurrence of the
following events:
(i) With respect to the Holdings Designee, upon the earlier of
(x) the date when the Holdings Ownership Percentage is less than ten
percent (10%), or (y) subject to the right of Holdings to designate a
replacement Holdings Designee pursuant to Section 2.7 hereof, his
death, disability or attainment of the age of seventy (70) years; or
(ii) With respect to Xxxxxx X. Xxxxxxxxx, upon the earlier of
his death, disability or attainment of the age of seventy (70) years;
or
(iii) With respect to each of the Holdings Directors, upon a
final determination by a court of competent jurisdiction that this
Agreement has been breached by PHL, Holdings or their Affiliates.
For purposes of this Section 2.2(c) and Section 2.5(b) below, the term
"disability" shall mean the inability to perform the duties of a director as a
result of a physical or mental incapacity (or combination thereof) for a period
longer than three (3) consecutive months or for more than six (6) months in any
consecutive twelve (12) month period, in each case determined by the written
opinion of such director's regular attending physician.
The Company may take such action as may be necessary to reduce the
size of the Board of Directors upon the occurrence of the events set forth in
(c)(i) and (c)(iii) above or in the event of Xx. Xxxxxxxxx'x death or
disability. Upon attaining the age of seventy (70) years, Xx. Xxxxxxxxx may
continue to serve as a director for the remainder of his then current term on
the Board of Directors and thereafter the Company may take such action as may be
necessary to reduce the size of the Board of Directors by one director.
(d) Until the earlier to occur of (i) the date on which there are no
Holdings Directors serving on the Board of Directors pursuant to this Agreement
or (ii) the expiration of this Agreement, the Company agrees that it will not
take or recommend to its shareholders any action that would result in any
amendment to the Company's Bylaws in effect on the date hereof that
(Page 23 of 58 pages)
would impose any qualifications on the eligibility of directors of the Company
to serve on any committee of the Board of Directors, except as may be required
by the NYSE Rules, the rules and regulations under the Internal Revenue Code of
1986, as amended, relating to the qualification of employee stock benefit plans
and the deductibility of compensation paid to executive officers, the rules and
regulations under Section 16(b) of the Exchange Act, including Rule 16b-3
thereunder or any successor rule, and the Company's Bylaws.
SECTION 2.3. COMMITTEE REPRESENTATION. Until the earlier to occur of
(i) the date on which there are no Holdings Directors serving on the Board of
Directors pursuant to this Agreement or (ii) the expiration of this Agreement,
to the extent that, and for so long as, but only insofar as required by
applicable law or NYSE Rules, any of the Holdings Directors is qualified under
the then-current NYSE Rules, the rules and regulations under the Internal
Revenue Code of 1986, as amended, relating to the qualification of employee
stock benefit plans and the deductibility of compensation paid to executive
officers, the rules and regulations under Section 16(b) of the Exchange Act,
including Rule 16b-3 thereunder or any successor rule, the Board of Directors
shall designate, as it deems appropriate, each of the Holdings Directors to
serve on at least one committee of the Board of Directors (whether existing on
the date hereof or formed or constituted after the date hereof).
SECTION 2.4. RESIGNATIONS AT THE REQUEST OF HOLDINGS; VACANCIES.
Holdings shall have the right to request the resignation from the Board of
Directors of the Holdings Designee pursuant to the terms of Exhibit A. In the
event that the Holdings Designee for any reason ceases to serve as a member of
the Board of Directors during his or her term of office and at such time
Holdings would have the right to a designation hereunder if an election for the
resulting vacancy were to be held, Holdings may designate a person to fill such
vacancy (a "Holdings Designee Vacancy"); PROVIDED that, the person so designated
shall be reasonably acceptable to the Continuing Directors. Subject to the
foregoing and Section 2.2 hereof, the Company agrees to (i) appoint Holdings'
designee to the Board of Directors to fill the Holdings Designee Vacancy and to
serve until the next annual meeting of the Company's shareholders and (ii)
nominate and recommend the Holdings' designee for election to the Board of
Directors at the next annual meeting of the Company's shareholders to fill the
remaining term of the class of directors to which such designee was appointed;
PROVIDED further that the Company shall be under no obligation to appoint,
nominate or recommend for election any such designee to fill an Holdings
Designee Vacancy unless and until it has received from such designee an executed
letter agreement regarding resignation in the form attached to this Agreement as
Exhibit A. Other than with respect to the foregoing provisions relating to a
Holdings Designee Vacancy, the Board of Directors shall have the sole and
exclusive right to designate a replacement director in the event of any vacancy
on the Board of Directors.
SECTION 2.5. REQUIRED RESIGNATIONS.
(a) On the earlier of (i) the date when the Holdings Ownership
Percentage is less than ten percent (10%), or (ii) the date of any final
determination by a court of competent jurisdiction that this Agreement has been
breached by PHL, Holdings or their Affiliates, Holdings shall, within five (5)
Business Days, use its best efforts to cause the Holdings Designee to resign
from
(Page 24 of 58 pages)
the Board of Directors. In the event of any decrease in the Holdings Ownership
Percentage to below such ten percent (10%) threshold, any subsequent increase in
the Holdings Ownership Percentage to or above such ten percent (10%) threshold
shall not entitle Holdings to reinstate, elect or designate any Holdings
Designee to the Board of Directors. If Holdings does not cause the resignation
of the Holdings Designee within such five (5) Business Day period, the Company
may seek such resignation or, in the alternative, the Continuing Directors may
seek the removal of the Holdings Designee.
(b) In the event of the disability or termination of employment of
Xxxxxx X. Xxxxxxx, III under the Employment Agreement between the Company and
Xxxxxx X. Xxxxxxx, III dated May 3, 1999, the Company may request Xxxxxx X.
Xxxxxxx, III to resign from the Board of Directors. If such resignation is not
received by the Company within five (5) Business Days from the date of the
Company's request for resignation, the Company may seek his removal in
accordance with the letter agreement attached hereto as Exhibit A.
(c) Upon any shareholder vote relating to the removal of a director
for failure to resign pursuant to this Section 2.5, Holdings and its Affiliates
shall (i) attend any meeting either in person or by proxy and (ii) vote in favor
of such removal. At such time as a director becomes subject to resignation
pursuant to this Section 2.5, the Board of Directors may amend its Bylaws or
take such other action as it deems appropriate to reduce the number of directors
constituting the Board of Directors proportionately or fill the vacancy caused
by such resignation(s) with its own nominee in accordance with the applicable
provisions of the Charter and Bylaws of the Company.
SECTION 2.6. NO VOTING TRUST. This Agreement does not create or
constitute, and shall not be construed as creating or constituting, a voting
trust agreement under the Virginia Stock Corporation Act or any other applicable
corporation law.
SECTION 2.7. NOTIFICATION OF DESIGNATION. Holdings shall notify the
Company in writing not later than March 1st of the year in which the Holdings
Designee's term on the Board of Directors expires as to the designation of the
person to be nominated for election as the Holdings Designee at the annual
meeting of the Company's shareholders for such year; PROVIDED that, if Holdings
should fail to so notify the Company of its Holdings Designee by such date,
Holdings shall be deemed to have designated the then current Holdings Designee
for nomination to the Board of Directors at the next annual meeting of
shareholders. Holdings shall cause the Holdings Designee to provide promptly
information that may be required under the Exchange Act for inclusion in the
Company's proxy statement for such annual meeting and shall cooperate with the
Company in obtaining any such information, including but not limited to the
prompt completion of any director questionnaires applicable to the directors
generally. Holdings shall have the sole and exclusive right to designate the
Holdings Designee under this Article II and the Company shall not be required to
accept a designation from any Person other than Holdings; PROVIDED, however,
that to the extent that Holdings Transfers all of the Holdings Securities
beneficially owned by Holdings to (i) an Affiliate of Holdings or PHL in
compliance with Section 4.1(g) hereof or (ii) a Person surviving a merger or
formed by a consolidation pursuant to
(Page 25 of 58 pages)
Section 4.1(h) hereof, such Affiliate or Person shall have the sole and
exclusive right to designate the Holdings Designee under this Article II from
and after the date of such Transfer.
SECTION 2.8. NO DUTY TO DESIGNATE; REDUCTION OF BOARD REPRESENTATION.
Nothing contained in this Article II shall be construed as requiring Holdings to
designate any Holdings Designee or as requiring any Holdings Director, once
elected, to continue to serve in office if such Holdings Director elects to
resign. Until the earlier to occur of (i) the date on which there are no
Holdings Directors serving on the Board of Directors pursuant to this Agreement
or (ii) the expiration of this Agreement, in the event of any vacancy created by
the death, resignation or removal of the Holdings Designee or the failure of
Holdings to designate an Holdings Designee, other than a vacancy created by the
resignation or removal of an Holdings Designee pursuant to Section 2.5 above,
Holdings may notify the Company in writing that it does not intend to designate
a person to fill such vacancy, and the Company thereafter may take such action
as may be necessary either to reduce the size of the Board of Directors by one
director or fill the vacancy with its own designee.
ARTICLE III
STANDSTILL RESTRICTIONS; VOTING MATTERS
SECTION 3.1. STANDSTILL RESTRICTIONS.
(a) During the term of this Agreement, PHL and Holdings covenant and
agree that PHL and Holdings shall not, and shall not permit any of their
Affiliates to, either individually or as part of a Group, directly or
indirectly:
(i) acquire (other than acquisitions resulting from corporate action
taken by the Board of Directors with respect to any pro rata distribution of
shares of Common Stock in connection with any stock split, stock dividend,
recapitalization, reclassification or similar transaction), propose to acquire
(or publicly announce or otherwise disclose an intention to propose to acquire),
offer to acquire, or agree to acquire any Common Stock (or any options,
warrants, rights or other securities exercisable for, or convertible or
exchangeable into, Common Stock, including without limitation the Subordinated
Debentures) if the effect of such acquisition would cause the Holdings Ownership
Percentage to equal or exceed the Standstill Percentage (other than as a result
of any stock purchases or repurchases by the Company); PROVIDED that this
Section 3.1(a)(i) shall not apply to (a) any acquisition of Common Stock or of
options, warrants, rights or other securities exercisable for, or convertible or
exchangeable into, Common Stock granted to any Person, including without
limitation Holdings Directors, pursuant to any benefit plan of the Company or
any of its Affiliates or the exercise, conversion or exchange of any such
option, warrant, right or other security or (b) any acquisition of Common Stock
upon the exercise by PHL, Holdings or their Affiliates of rights pursuant to any
Rights Agreement that may be adopted by the Company for the purpose of deterring
coercive takeover activities with respect to the Company, PROVIDED that all of
the shares of Common Stock so acquired upon the exercise of the rights shall be
subject to all of the terms of this Agreement;
(Page 26 of 58 pages)
(ii) propose (or publicly announce or otherwise disclose an intention
to propose), solicit, offer, seek or take any action to effect, negotiate with
or provide any confidential information relating to the Company or its business
to any other Person with respect to, any tender or exchange offer, merger,
consolidation, share exchange, business combination, restructuring,
recapitalization or similar transaction involving the Company (other than (x)
any of the foregoing that has been approved by the Board of Directors or (y) in
connection with any tender or exchange offer in which the Board of Directors has
(a) recommended that its shareholders accept such offer or (b) after ten (10)
business days (as defined in Rule 14d-1 under the Exchange Act as in effect on
the date of this Agreement) from the date of commencement of such offer,
expressed no opinion, remained neutral, was unable to take a position or
otherwise did not oppose or recommend that its shareholders reject such offer);
(iii) make, or in any way participate in, any "solicitation" of
"proxies" to vote (as such terms are defined in Rule 14a-1 under the Exchange
Act), solicit any consent or communicate with or seek to advise or influence any
person or entity with respect to the voting of any Common Stock or become a
"participant" in any "election contest" (as such terms are defined or used in
Rule 14a-11 under the Exchange Act) with respect to the Company; PROVIDED that
nothing in this Section 3.1(a)(iii) shall apply to any deemed solicitation of
proxies by the Holdings Directors that may result from such Holdings Directors'
position or status as a director of the Company at the time of any general
solicitation of proxies by the management of the Company;
(iv) form, participate in or join any Person or Group with respect to
any Common Stock or Subordinated Debentures, or otherwise act in concert with
any Person for the purpose of (x) acquiring beneficial ownership of any Common
Stock or Subordinated Debentures or (y) holding or disposing of Common Stock or
Subordinated Debentures for any purpose prohibited by this Section 3.1(a);
(v) except as specifically provided in Section 3.2 below, deposit any
Common Stock or Subordinated Debentures into a voting trust or subject any
Common Stock or Subordinated Debentures to any arrangement or agreement with
respect to the voting thereof;
(vi) initiate, propose or otherwise solicit shareholders for the
approval of any shareholder proposal with respect to the Company as described in
Rule 14a-8 under the Exchange Act, or induce or attempt to induce any other
Person to initiate, propose or otherwise solicit any such shareholder proposal;
(vii) except as specifically provided in Article II of this Agreement,
seek election to or seek to place a representative on the Board of Directors, or
seek the removal of any member of the Board of Directors (other than a Holdings
Director);
(viii) call or seek to have called any meeting of the shareholders of
the Company for any purpose;
(Page 27 of 58 pages)
(ix) take any other action to seek to Control the management or
policies of the Company;
(x) demand, request or propose to amend, waive or terminate the
provisions of this Section 3.1(a); or
(xi) agree to do any of the foregoing, or advise, assist, encourage or
persuade any third party to take any action with respect to any of the
foregoing.
(b) PHL and Holdings agree that they will notify the Company promptly
if any inquiries or proposals are received by, any information is exchanged with
respect to, or any negotiations or discussions are initiated or continued by or
with, PHL, Holdings or any of their Affiliates regarding any matter described in
Section 3.1(a) above. PHL and the Company shall mutually agree upon an
appropriate response to be made to any such proposals received by PHL, Holdings
or any of their Affiliates.
(c) Nothing contained in this Article III shall be deemed to restrict
the manner in which the Holdings Directors may participate in deliberations or
discussions of the Board of Directors or individual consultations with any
member of the Board of Directors, so long as such actions do not otherwise
violate any provision of Section 3.1(a) above.
(d) Each of Holdings and PHL covenants and agrees that, during the
term of this Agreement and so long as Holdings, PHL or their Affiliates Control
(i) PXP and its subsidiaries (or any successor of PXP and its subsidiaries) or
(ii) any Person registered as an investment company under the Investment Company
Act of 1940, as amended, which might otherwise be deemed to be an "affiliate" of
Holdings or PHL within the meaning of Rule 12b-2 under the Exchange Act (a
"Related Investment Company"), it will not, and will not permit any of its
Affiliates to, cause or permit PXP and its subsidiaries (or any such successor
of PXP and its subsidiaries) or such Related Investment Company, directly or
indirectly, to (i) attempt to exercise Control or influence over the business
and affairs of the Company, (ii) act in concert with Holdings, PHL or their
Affiliates to violate the provisions of this Agreement or (iii) act in concert
with any other Person for the purposes of violating the provisions of this
Agreement or otherwise effecting a change of Control of the Company. Each of
Holdings and PHL also covenants and agrees that, during the term of this
Agreement, it will not direct or influence, or attempt to direct or influence,
the voting or disposition of shares of Common Stock owned of record or
beneficially by PXP and its subsidiaries (or any successor of PXP and its
subsidiaries).
SECTION 3.2. VOTING MATTERS.
(a) During the term of this Agreement, PHL and Holdings will take all
such action as may be required so that the Common Stock beneficially owned and
entitled to be voted by PHL, Holdings and their Affiliates, as a Group, are
voted or caused to be voted (in person or by proxy):
(i) with respect to the Continuing Director's nominees to the Board of
Directors, in accordance with the recommendation of the Board of Directors, or a
nominating or
(Page 28 of 58 pages)
similar committee of the Board of Directors, if any such committee
exists and makes a recommendation; and
(ii) in accordance with the recommendation of the Board of Directors
with respect to any transaction to be effected with the Company or its
Affiliates in connection with an unsolicited tender or exchange offer, any
"election contest" (as such term is defined or used in Rule 14a-11 under the
Exchange Act as in effect on the date of this Agreement) with respect to the
Board of Directors of the Company or any other attempt to acquire Control of the
Company or the Board of Directors.
(b) For a period of five (5) years from the date of this Agreement,
PHL and Holdings will take all such action as may be required so that the Common
Stock beneficially owned and entitled to be voted by PHL, Holdings and their
Affiliates, as a Group, are voted or caused to be voted (in person or by proxy)
in accordance with the recommendation of the Board of Directors of the Company
with respect to negotiated mergers, acquisitions, divestitures, consolidations,
sale of assets, share exchanges or other similar transactions for which
shareholder approval is sought.
(c) With respect to all matters brought before the Company's
shareholders for a vote not otherwise provided for in Section 2.5(c) or Section
3.2(a) and (b) above, PHL, Holdings and their Affiliates may vote in accordance
with their independent judgment without regard to any request or recommendation
of the Board of Directors.
(d) PHL, Holdings and their Affiliates who beneficially own any of the
Common Stock shall be present, in person or by proxy, at all duly held meetings
of shareholders of the Company so that the Common Stock held by PHL, Holdings
and their Affiliates may be counted for the purposes of determining the presence
of a quorum at such meetings.
ARTICLE IV
TRANSFERS OF HOLDINGS SECURITIES
SECTION 4.1. TRANSFER RESTRICTIONS. During the term of this Agreement,
PHL, Holdings and their Affiliates, shall not, directly or indirectly, Transfer
any of the Holdings Securities beneficially owned by PHL, Holdings and their
Affiliates to any Person or Group without the prior written consent of the
Company (which consent may be withheld in the Company's sole discretion), if (i)
as a result of such Transfer, such Person or Group would have beneficial
ownership of Common Stock representing in the aggregate more than 9.9% of the
issued and outstanding shares of Common Stock, such determination to be based
upon (x) the most recent publicly available information as to the number of
shares of Common Stock beneficially owned by such Person or Group (to the extent
such information is available) or the transferor's actual knowledge, after due
inquiry, as to such beneficial ownership, (y) the number or amount of Holdings
Securities proposed to be Transferred and (z) the number of issued and
outstanding shares of Common Stock on the date of Transfer (as adjusted pursuant
to Rule 13d-3(d)(1)(i) under the Exchange Act), or (ii) prior to such Transfer,
such Person or Group has
(Page 29 of 58 pages)
beneficial ownership of Common Stock representing in the aggregate more than
9.9% of the issued and outstanding shares of Common Stock, such determination to
be based upon (x) the most recent publicly available information as to the
number of shares of Common Stock beneficially owned by such Person or Group (to
the extent such information is available) or the transferor's actual knowledge,
after due inquiry, as to such beneficial ownership and (y) the number of issued
and outstanding shares of Common Stock on the date of Transfer (as adjusted
pursuant to Rule 13d-3(d)(1)(i) under the Exchange Act). Subject to the
foregoing limitation (except in the case of subparagraphs (g) and (h) of this
Section 4.1) and, with respect to any Transfer of the Subordinated Debentures,
the provisions of the Indenture, PHL, Holdings and their Affiliates may Transfer
the Holdings Securities beneficially owned by PHL, Holdings and their Affiliates
in the following manner:
(a) to the Company or any Affiliate of the Company;
(b) pursuant to an effective registration statement under the
Securities Act as provided in the Registration Rights Agreement; PROVIDED that
such registration statement shall apply only to sales of the Common Stock of the
Company and not to sales of the Subordinated Debentures;
(c) pursuant to Rule 144, Rule 144A, Regulation S or any other
applicable exemption from registration under the Securities Act;
(d) pursuant to a distribution (including any such distribution
pursuant to any liquidation or dissolution) by PHL or Holdings to its
shareholders; PROVIDED that, upon a change in Control of PHL or Holdings
occurring after the date of this Agreement, PHL or Holdings shall not distribute
any of the Holdings Securities to its Affiliates pursuant to this Section 4.1(d)
or otherwise unless PHL or Holdings has received the prior written consent of
the Company (which consent may be withheld in the Company's sole discretion) and
obtained an agreement in writing by the distributee to be bound by the terms and
conditions of this Agreement, such agreement to be substantially in the form of
Exhibit B attached hereto;
(e) pursuant to a merger or consolidation of the Company or pursuant
to a plan of liquidation of the Company, which has been approved by the
affirmative vote of a majority of the members of the Board of Directors then in
office;
(f) pursuant to a tender or exchange offer in which more than 67% of
the issued and outstanding shares of Common Stock have been tendered by Persons
who are not Affiliates of Holdings, PHL or its Affiliates or in which the Board
of Directors has (i) recommended that its shareholders accept such offer or (ii)
after ten (10) business days (as defined in Rule 14d-1 under the Exchange Act as
in effect on the date of this Agreement) from the date of commencement of such
offer, expressed no opinion, remained neutral, was unable to take a position or
otherwise did not oppose or recommend that its shareholders reject such offer;
(Page 30 of 58 pages)
(g) to any Affiliate of Holdings or PHL; PROVIDED that such Affiliate
has delivered to the Company an agreement in writing by such Affiliate to be
bound by the terms and conditions of this Agreement, such agreement to be
substantially in the form of Exhibit B attached hereto;
(h) pursuant to a merger or consolidation of Holdings or PHL or any
Affiliate to which the Holdings Securities have theretofore been Transferred;
PROVIDED that the Person surviving such merger or formed by such consolidation
shall have delivered to the Company an agreement in writing by such Person to be
bound by the terms and conditions of this Agreement, such agreement to be
substantially in the form of Exhibit B attached hereto.
In connection with any permitted Transfer pursuant to this Section
4.1, the rights of PHL and Holdings under this Agreement shall not transfer to
any transferee(s) of the Holdings Securities, except to the extent provided in
Section 2.7 hereof or upon express assignment of such rights to the extent
permitted by Section 7.3 hereof.
SECTION 4.2. TRANSFERS TO AFFILIATES. In the event of any Transfer of
the Holdings Securities to an Affiliate of PHL or Holdings under Section 4.1
above, or such Affiliate otherwise becomes the beneficial owner of any of the
Holdings Securities, PHL shall use its best efforts to cause such Affiliate to
comply with all of the provisions of this Agreement, including without
limitation this Article IV.
SECTION 4.3. CONFIDENTIAL INFORMATION. In connection with any
permitted Transfer of the Holdings Securities pursuant to this Article IV,
neither PHL, Holdings nor their Affiliates shall disclose any confidential
information relating to the Company or its business to any Person except as
required by applicable law, including without limitation Section 10(b) of the
Exchange Act and Rule 10b-5 thereunder, but only to the extent that any required
disclosure of such confidential information has been preceded by the execution
of a confidentiality agreement by PHL, Holdings or their Affiliates, as the case
may be, and such Person substantially in the form attached hereto as Exhibit C.
Such confidentiality agreement shall be promptly forwarded to the Company for
its execution, which execution by the Company may be subsequent to the permitted
Transfer or disclosure to such Person; PROVIDED that the failure of the Company
to so execute such confidentiality agreement shall in no way be construed to be
a failure on the part of PHL, Holdings or their Affiliates, as the case may be,
to fulfill its obligations under this paragraph or to limit or affect the
validity of such confidentiality agreement as between PHL, Holdings or their
Affiliates, as the case may be, and such Person.
ARTICLE V
FURTHER ASSURANCES
Each party shall execute and deliver such additional instruments and
other documents and shall take such further actions as may be necessary or
appropriate to effectuate, carry out and comply with all of its respective
obligations under this Agreement. Holdings shall deliver to the Company,
concurrently with the filing thereof with the Securities and Exchange
Commission, copies of all Forms 3, 4 and 5, Form 144 and Schedules 13D or 13G,
and each amendment
(Page 31 of 58 pages)
thereto, filed by Holdings, PHL or its Affiliates pursuant to the Exchange Act.
Holdings and PHL agree to provide any additional information requested by the
Company regarding Transfers of the Holdings Securities for the purpose of
determining compliance with this Agreement. Holdings shall notify the Company
promptly of any proposed Transfer of the Holdings Securities pursuant to
Sections 4.1(g) and (h) hereof. If reasonably requested by the Company at any
time during the term of this Agreement, Holdings agrees to confirm in writing to
the Company the number of Holdings Securities held, beneficially and of record,
by Holdings and its Affiliates as of the latest practicable date.
ARTICLE VI
TERMINATION
Unless earlier terminated by written agreement of the parties hereto,
this Agreement shall terminate on the expiration of ten (10) years from the date
hereof. Any termination of this Agreement as provided herein shall be without
prejudice to the rights of any party arising out of the breach by any other
party of any provisions of this Agreement that occurred prior to the
termination.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing (including
telecopy or similar teletransmission), addressed as follows:
If to the Company, Hilb, Xxxxx and Xxxxxxxx Company
to it at: 0000 Xxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
With a copy to: Xxxxxxxx Xxxxxx Xxxxxxxxx & Xxxxxxx
0000 Xxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx, Xx., Esquire
If to Holdings PM Holdings, Inc.
or PHL, One American Row
to them at: Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esquire
(Page 32 of 58 pages)
Phoenix Home Life Mutual Insurance Company
Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Executive Vice President and
Chief Financial Officer
With a copy to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esquire
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) in the case of any notice or communication sent other than
by mail, on the date actually delivered to such address (evidenced, in the case
of delivery by overnight courier, by confirmation of delivery from the overnight
courier service making such delivery, and in the case of a telecopy, by receipt
of a transmission confirmation form or the addressee's confirmation of
receipt), or (b) in the case of any notice or communication sent by mail, three
(3) Business Days after being sent, if sent by registered or certified mail,
with first-class postage prepaid. Each of the parties hereto shall be entitled
to specify a different address by giving notice as aforesaid to each of the
other parties hereto.
SECTION 7.2. AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except by an instrument in writing signed by Holdings, PHL and the Company
following approval thereof by a majority of the Continuing Directors.
SECTION 7.3. SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by the parties and their respective successors and assigns,
including without limitation in the case of any corporate party hereto any
corporate successor by merger or otherwise; PROVIDED that no party may assign
this Agreement without the other party's prior written consent, which consent
will not be required in the event of the Transfer of the Holdings Securities in
accordance with Sections 4.1(g) or 4.1(h) hereof. Notwithstanding the foregoing,
during the term of this Agreement, as long as Holdings, PHL or any of their
Affiliates beneficially own any of the Holdings Securities, no assignment of
this Agreement by Holdings, PHL or any of their Affiliates shall relieve the
assignor from its obligation to fully perform or comply with the terms of this
Agreement and, unless otherwise expressly agreed in writing by the Company, such
assignor shall remain bound by all of the provisions hereof.
SECTION 7.4. ENTIRE AGREEMENT. This Agreement, the Stock Purchase
Agreement, the Indenture and the Registration Rights Agreement embody the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersede all prior
(Page 33 of 58 pages)
agreements and understandings relating to such subject matter. There are no
covenants by the parties hereto relating to such subject matter other than those
expressly set forth in this Agreement, the Stock Purchase Agreement, the
Indenture and the Registration Rights Agreement.
SECTION 7.5. SPECIFIC PERFORMANCE. The parties acknowledge that money
damages are not an adequate remedy for violations of this Agreement and that any
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
SECTION 7.6. REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
SECTION 7.7. NO WAIVER. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 7.8. NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of and shall not be enforceable by any Person who
or which is not a party hereto.
SECTION 7.9. CONSENT TO JURISDICTION. Each party to this Agreement, by
its execution hereof, hereby (i) irrevocably submits, and agrees to cause each
of its Affiliates to submit, to the jurisdiction of the federal courts located
either in the City of Richmond, Virginia, or in the City of Hartford,
Connecticut, and in the event that such federal courts shall not have subject
matter jurisdiction over the relevant proceeding, then of the state courts
located either in the City of Richmond, Virginia, or in the City of Hartford,
Connecticut, for the purpose of any Action arising out of or based upon this
Agreement or relating to the subject matter hereof or the transactions
contemplated hereby, (ii) waives, and agrees to cause each of its Affiliates to
waive, to the extent not prohibited by applicable law, and agrees not to assert,
and agrees not to allow any of its Affiliates to assert, by way of motion, as a
defense or otherwise, in any such Action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that any such proceeding brought
in one of the above-named courts is improper, or that this Agreement or the
subject matter hereof may not be enforced in or by such court and (iii) hereby
agrees not to commence or to permit any of its Affiliates to commence any Action
arising out of or based upon this Agreement or relating to the subject matter
hereof other than before one of the above-named courts nor to make any motion or
take any other action seeking or intending to cause the transfer or removal of
any such
(Page 34 of 58 pages)
Action to any court other than one of the above-named courts whether on the
grounds of inconvenient forum or otherwise. Each party hereby consents to
service of process in any such proceeding in any manner permitted by Virginia or
Connecticut law, as the case may be, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified
pursuant to Section 7.1 above is reasonably calculated to give actual notice.
Notwithstanding anything contained in this Section 7.9 to the contrary with
respect to the parties' forum selection, if an Action is filed against a party
to this Agreement, including its Affiliates, by a Person who or which is not a
party to this Agreement, an Affiliate of a party to this Agreement, or an
assignee thereof (a "Third Party Action"), in a forum other than the federal
district court or a state court located in the City of Richmond, Virginia, or in
the City of Hartford, Connecticut, and such Third Party Action is based upon,
arises from, or implicates rights, obligations or liabilities existing under
this Agreement or acts or omissions pursuant to this Agreement, then the party
to this Agreement, including its Affiliates, joined as a defendant in such Third
Party Action shall have the right to file cross-claims or third-party claims in
the Third Party Action against the other party to this Agreement, including its
Affiliates, and even if not a defendant therein, to intervene in such Third
Party Action with or without also filing cross-claims or third-party claims
against the other party to this Agreement, including its Affiliates.
SECTION 7.10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic substantive law of the Commonwealth of
Virginia, without giving effect to any choice or conflict of law provision or
rule that would cause the application of the law of any other jurisdiction.
SECTION 7.11. NAME, CAPTIONS. The name assigned to this Agreement and
the section captions used herein are for convenience of reference only and shall
not affect the interpretation or construction hereof.
SECTION 7.12. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one instrument. Each counterpart may consist
of a number of copies each signed by fewer than all, but together signed by all,
the parties hereto.
SECTION 7.13. EXPENSES. Each of the parties hereto shall bear their
own expenses incurred in connection with this Agreement and the transactions
contemplated hereby, except that in the event of a dispute concerning the terms
or enforcement of this Agreement, the prevailing party in any such dispute shall
be entitled to reimbursement of reasonable legal fees and disbursements
reasonably incurred from the other party or parties to such dispute.
SECTION 7.14. SEVERABILITY. In the event that any provision hereof
would, under applicable law, be invalid or unenforceable in any respect, such
provision shall (to the extent permitted under applicable law) be construed by
modifying or limiting it so as to be valid and enforceable to the maximum extent
compatible with, and possible under, applicable law. The provisions hereof are
severable, and in the event any provision hereof should be held invalid or
unenforceable in any respect, it shall not invalidate, render unenforceable or
otherwise affect any other provision hereof.
(Page 35 of 58 pages)
[SIGNATURES ON NEXT PAGE]
(Page 36 of 58 pages)
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Voting and Standstill Agreement to be executed, as of
the date first above written by their respective officers thereunto duly
authorized.
HILB, XXXXX AND XXXXXXXX COMPANY
By: /S/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
PM HOLDINGS, INC.
By: /S/ XXXXX X. XXXXXXXX
Name: Xxxxx X. Xxxxxxxx
Title: Vice President/Chief Financial Officer
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By: /S/ XXXXX X. XXXXXXXX
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
(Page 37 of 58 pages)
Exhibit A
FORM OF RESIGNATION AGREEMENT
Hilb, Xxxxx and Xxxxxxxx Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
I hereby acknowledge that my position on the Board of Directors of
Hilb, Xxxxx and Xxxxxxxx Company ("the Company") is subject to the provisions of
a Voting and Standstill Agreement (the "Agreement"), dated May 3, 1999, between
the Company, PM Holdings, Inc., a Connecticut corporation ("Holdings"), and
Phoenix Home Life Mutual Insurance Company, a New York life insurance company
("PHL"). Accordingly, I hereby agree to resign immediately from such Board of
Directors under the terms of Article II of the Agreement in the event that the
Company or Holdings (with respect to the Holdings Designee) requests such
resignation in accordance with such terms. I understand that, if I do not resign
as requested within five (5) Business Days (as defined in the Agreement), the
Company may seek specific performance of this letter agreement through court
proceedings or otherwise may seek to remove me from office. I agree that any
failure to resign upon request shall be deemed to be "cause" for my removal from
the Board of Directors.
Date: May 3, 1999
------------------------------
Name
Agreed to and Accepted:
Hilb, Xxxxx and Xxxxxxxx Company
By:___________________________
Name:
Title:
(Page 38 of 58 pages)
Exhibit B
FORM OF ASSUMPTION AGREEMENT
Hilb, Xxxxx and Xxxxxxxx Company
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Pursuant to Section 4.1[(d), (g) or (h)] of the Voting and Standstill
Agreement (the "Agreement"), dated May 3, 1999, between Hilb, Xxxxx and Xxxxxxxx
Company ("the Company"), PM Holdings, Inc., a Connecticut corporation
("Holdings"), and Phoenix Home Life Mutual Insurance Company, a New York life
insurance company ("PHL"), the undersigned hereby agrees to be bound by all of
the terms and conditions of the Agreement to the same extent as if it were a
party thereto and assumes all of the obligations of [Holdings, PHL or their
Affiliate] under the Agreement with respect to the Holdings Securities (as
defined in the Agreement).
[HOLDINGS, PHL OR AFFILIATE]
Date: _________________ By:
Name:
Title:
[TRANSFEREE]
Date: _________________ By:
Name:
Title:
Agreed to and Accepted:
Hilb, Xxxxx and Xxxxxxxx Company
By:___________________________
Name:
Title:
(Page 39 of 58 pages)
Exhibit C
FORM OF CONFIDENTIALITY AGREEMENT
________ __, 19__
CONFIDENTIAL
[Name]
[Address]
Re: CONFIDENTIALITY AGREEMENT
Ladies and Gentlemen:
In connection with our [soliciting, offering, seeking to effect or
negotiating] with you with respect to the [sale, transfer, assignment, pledge,
etc.] of [shares of Common Stock, without par value, or 5.25% Convertible
Subordinated Debentures], of Hilb, Xxxxx and Xxxxxxxx Company (the "Company"),
we are prepared to make available to you certain confidential information
relating to the Company and its business (the "Confidential Information"). As a
condition to your being furnished the Confidential Information, you agree to
comply with the terms and conditions of this letter agreement (this
"Agreement").
For the purposes of this Agreement, the term "Representatives" shall
mean your employees, agents and advisors and the directors, officers, employees
and agents of any of your advisors. The term "Third Party" shall be broadly
interpreted to include without limitation any corporation, company, group,
partnership, other entity or individual. The term "Confidential Information"
shall not include information that (i) was or becomes generally available to the
public other than as a result of a disclosure by you or your Representatives, or
(ii) was or becomes available to you on a non-confidential basis from a source
other than the Company or its advisors.
You hereby agree to treat the Confidential Information as confidential
and, unless required by applicable law, you shall not, and shall direct your
Representatives not to, use in any way or to disclose, directly or indirectly,
the Confidential Information to any Third Party without the written consent of
the Company.
It is understood and agreed that money damages would not be a
sufficient remedy for any breach of this Agreement by you and that the Company
shall be entitled to specific performance and injunctive or other equitable
relief as a remedy for any such breach, and you further agree to waive any
requirement for the securing or posting of any bond in connection with such
remedy.
(Page 40 of 58 pages)
Such remedy shall not be deemed to be the exclusive remedy for your breach of
this Agreement, but shall be in addition to all other remedies available at law
or equity to the Company.
If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this Agreement, whereupon it will constitute
our agreement with respect to the subject matter hereof.
Very truly yours,
[Name]
Officer of [Holdings or Affiliate]
CONFIRMED AND AGREED as of
the date first written above:
[NAME]
By:_________________________________
Name:
Title:
Hilb, Xxxxx and Xxxxxxxx Company
By:_________________________________
Name:
Title:
(Page 41 of 58 pages)
