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STOCK OPTION AND TENDER AGREEMENT
Stock Option and Tender Agreement (this "Agreement"), dated as of
August 9, 1995, between Humana Inc., a Delaware corporation ("Purchaser"),
Lincoln National Corporation, an Indiana corporation ("Lincoln"), and American
States Insurance Company, an Indiana corporation ("Stockholder").
Background
A. Stockholder is a wholly owned subsidiary of Lincoln. Stockholder
owns (both beneficially and of record) 4,986,507 shares of common stock, par
value $.01 per share ("Common Stock"), of EMPHESYS Financial Group, Inc., a
Delaware corporation (the "Company").
B. Concurrently herewith, Purchaser, HEW, Inc., a Delaware
corporation and a wholly owned subsidiary of Purchaser ("Sub"), and the Company
are entering into an agreement and plan of merger, dated as of August 9, 1995
(the "Merger Agreement"), pursuant to which Sub has agreed to make a tender
offer (the "Offer") for all outstanding shares of Common Stock at $37.50 per
share (the "Offer Price"), net to the seller in cash, to be followed by a merger
of Sub with and into the Company.
C. As a condition to the willingness of Purchaser to enter into the
Merger Agreement, Purchaser has required that Stockholder agree, and in order to
induce Purchaser to enter into the Merger Agreement, Stockholder has agreed,
among other things, (i) to tender all of the shares of Common Stock now owned or
which may hereafter be acquired by Stockholder (the "Shares"), (ii) to grant
Purchaser the option to purchase the Shares, (iii) to appoint Purchaser as
Stockholder's proxy to vote the Shares, and (iv) with respect to certain
questions put to stockholders of the Company for a vote, to vote the Shares, in
each case, in accordance with the terms and conditions of this Agreement.
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In consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, the adequacy of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
Agreement
1. Tender of Shares. Stockholder agrees to tender and sell to
Purchaser pursuant to the Offer all of the Shares. Stockholder agrees that
Stockholder shall deliver to the depositary for the Offer, no later than the
first Business Day (as defined below) following the commencement of the Offer,
either a letter of transmittal together with the certificates for the Shares, if
available, or a "Notice of Guaranteed Delivery", if the Shares are not
available. Stockholder agrees not to withdraw any Shares tendered into the
Offer.
2. Stock Option.
2.1. Grant of Stock Option. Stockholder hereby grants to
Purchaser an irrevocable option (the "Stock Option") to purchase all of the
Shares at such time as Purchaser may exercise the Stock Option at a purchase
price equal to the Offer Price.
2.2. Exercise of Stock Option. (a) The Stock Option may be
exercised by Purchaser, in whole or in part, at any time, or from time to time,
prior to the earlier of (i) the date upon which the Effective Time (as defined
in the Merger Agreement) occurs and (ii) the date forty-five days after the date
of termination of the Merger Agreement.
(b) In the event Purchaser wishes to exercise the
Stock Option, Purchaser shall send a written notice (an "Exercise Notice") to
Stockholder specifying the total number of Shares Purchaser wishes to purchase
from the Stockholder and a date, which shall be a Business Day, and a place,
which shall be in the City of New York, for the closing of such purchase (a
"Stock Option Closing").
(c) Upon receipt of an Exercise Notice, Stockholder
shall be obligated to deliver to Purchaser a certificate or certificates
representing the number of Shares specified in such Exercise Notice, in
accordance with the terms of this Agreement, on the later of the date specified
in such Exercise Notice and the first Business Day on which the conditions
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specified in Section 2.3 shall be satisfied. The date specified in such
Exercise Notice may be as early as one day after the date of such Exercise
Notice.
(d) If on the date an Exercise Notice is delivered to
Stockholder, Purchaser is prohibited by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations thereunder
(the "HSR Act") or by Applicable Insurance Regulations from purchasing the
number of Shares specified in the Exercise Notice, then Purchaser shall exercise
a Stock Option to purchase such lesser amount that represents the maximum number
of Shares which it is then permitted to purchase by the HSR Act or by Applicable
Insurance Regulations, as the case may be.
(e) For the purposes of this Agreement, the term
"Business Day" shall mean a day on which banks are not required or authorized to
be closed in the City of New York and the term "Applicable Insurance
Regulations" shall mean all laws or regulations applicable to insurance
companies or health maintenance organizations (including, without limitation,
laws or regulations administered by the Office of the Commissioner of Insurance
of the State of Wisconsin (the "OCI") or the Department of Corporations of the
State of California (the "DOC")) under which any filing or registration with or
authorization, consent or approval of, any governmental entity is required by or
with respect to Purchaser, Stockholder or the Company or any of their respective
subsidiaries in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
2.3. Conditions to Delivery of the Shares. The obligation of
Stockholder to deliver the Shares upon any exercise of a Stock Option is subject
to the following conditions:
(a) All waiting periods under the HSR Act applicable
to such exercise of the Stock Option and the delivery of the Shares subject to
such Stock Option in respect of such exercise shall have expired or been
terminated;
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(b) All regulatory or supervisory agency approvals
required by any applicable law, rule or regulation for a Stock Option Closing
(including Applicable Insurance Regulations) shall have been obtained and each
approval shall have become final; and
(c) There shall be no preliminary or permanent
injunction or other order by any court of competent jurisdiction restricting,
preventing or prohibiting such exercise of such Stock Option or the delivery of
the Shares subject to such Stock Option in respect of such exercise.
2.4. Stock Option Closings. At each Stock Option Closing,
Stockholder will deliver to Purchaser a certificate or certificates evidencing
the number of Shares specified in the Exercise Notice delivered to Stockholder
in respect of such Stock Option Closing, each such certificate being duly
endorsed in blank and accompanied by such stock powers and such other documents
as may be necessary in Purchaser's judgment to transfer record ownership of the
Shares into Purchaser's name on the stock transfer books of the Company and
Purchaser will purchase the delivered Shares at the Offer Price. All payments
made by Purchaser to Stockholder pursuant to this Section 2.4 shall be made by
wire transfer of immediately available funds or by certified bank check payable
to Stockholder, in an amount equal to the product of (a) the Offer Price and (b)
the number of Shares specified in the Exercise Notice delivered in respect of
such Stock Option Closing.
2.5. Adjustments Upon Changes in Capitalization. In the
event of any change in the number of issued and outstanding shares of Common
Stock by reason of any stock dividend, subdivision, merger, recapitalization,
combination, conversion or exchange of shares, or any other change in the
corporate or capital structure of the Company (including, without limitation,
the declaration or payment of an extraordinary dividend of cash or securities)
which would have the effect of diluting or otherwise adversely affecting
Purchaser's rights and privileges under this Agreement, the number and kind of
the Shares and the consideration payable in respect of the Shares shall be
appropriately and equitably adjusted to restore to Purchaser its rights and
privileges under this Agreement. Without limiting the scope of the
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foregoing, in any such event, at the option of Purchaser, the Stock Option
shall represent the right to purchase, in addition to the number and kind of
Shares which Purchaser would be entitled to purchase pursuant to the
immediately preceding sentence, whatever securities, cash or other property the
Shares subject to the Stock Option shall have been converted into or otherwise
exchanged for, together with any securities, cash or other property which shall
have been distributed with respect to such Shares.
2.6. Purchaser Sale of Shares. (a) If subsequent to the
exercise of the Stock Option and prior to the Termination Date (as defined in
Section 8), Purchaser (or any affiliate of Purchaser to which the Shares have
been transferred) sells or otherwise in any way disposes of, in whole or in
part, the Shares to a third party (other than an affiliate of Purchaser), in a
transaction in which Purchaser (or its affiliated transferee) receives cash
and/or securities having a value in excess (such excess is hereinafter the
"Excess") of the Offer Price, Purchaser will, promptly after the completion or
sale or other disposition, pay or deliver to Stockholder 50% of the Excess for
each Share sold or otherwise disposed of. The Excess shall be paid, to the
extent Purchaser (or its transferee) received cash, in cash and, to the extent
that Buyer (or its transferee) received securities or other consideration, in
such securities, or other consideration.
(b) The value of such securities or other
consideration shall be determined as of the date of the receipt thereof. If
Purchaser and Stockholder cannot within 15 days of receipt of such securities or
other consideration agree as to its value, the value of such consideration shall
be determined by agreement between two nationally recognized investment banking
firms, one of which will be designated by Purchaser and the other of which will
be designated by Stockholder. Each of Purchaser and Stockholder shall be
responsible for the costs and expenses of the investment banking firm it
designates. If such investment banking firms are unable to agree as to the
value of such securities or other consideration within 30 days after receipt
thereof by Purchaser, such value shall be established by a third investment
banking firm selected by the initial investment banking firms. All costs and
expenses of the third investment banking firm shall be shared equally by
Purchaser and Stockholder.
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3. Representations and Warranties of Lincoln and Stockholder. Each
of Lincoln and Stockholder hereby represents and warrants to Purchaser as
follows:
3.1. Title to the Shares. Stockholder is the owner (both
beneficially and of record) of the Shares (which term as of the date hereof is
comprised of 4,986,507 shares of Common Stock) and Stockholder does not have any
rights of any nature to acquire any additional shares of Common Stock.
Stockholder owns all of the Shares free and clear of all security interests,
liens, claims, pledges, options, rights of first refusal, agreements,
limitations on Stockholder's voting rights, charges and other encumbrances of
any nature whatsoever, and, except as provided in this Agreement, Stockholder
has not appointed or granted any proxy, which appointment or grant is still
effective, with respect to any of the Shares. Upon the exercise of the Stock
Option and the delivery to Purchaser by Stockholder of a certificate or
certificates evidencing the Shares, Purchaser will receive good, valid and
marketable title to the Shares, free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreements, limitations on
Purchaser's voting rights, charges and other encumbrances of any nature
whatsoever.
3.2. Authority Relative to This Agreement. Each of Lincoln
and Stockholder has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by each of Lincoln and Stockholder and the consummation by each of Lincoln and
Stockholder of the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of each of Lincoln and
Stockholder, respectively. This Agreement has been duly and validly executed
and delivered by each of Lincoln and Stockholder and, assuming the due
authorization, execution and delivery by Purchaser, constitutes a legal, valid
and binding obligation of each of Lincoln and Stockholder, enforceable against
each of Lincoln and Stockholder in accordance with its terms.
3.3. No Conflict. The execution and delivery of this
Agreement by each of Lincoln and Stockholder does not, and the performance of
this Agreement by each of
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Lincoln and Stockholder will not, (a) require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority, domestic or foreign, except for (i) requirements of
federal and state securities laws, (ii) requirements arising out of the HSR Act,
and (iii) requirements of Applicable Insurance Regulations, (b) conflict with or
violate the certificate of incorporation or bylaws or equivalent organizational
documents, if any, of Lincoln or Stockholder, (c) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to Lincoln or
Stockholder or by which any property or asset of Lincoln or Stockholder is bound
or affected, or (d) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or cancellation
of, or result in the creation of a lien or other encumbrance of any nature
whatsoever on any property or asset of Lincoln or Stockholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Lincoln or Stockholder is a
party or by which Lincoln or Stockholder or any property or asset of Lincoln or
Stockholder is bound or affected, except in each case to the extent any such
breach or default, whether taken singly or in the aggregate, would not have a
material adverse effect on Lincoln or Stockholder or its ability to consummate
the transactions contemplated hereby.
3.4. $50 Million Company Promissory Note. Lincoln is the
Designated Holder of that certain $50,000,000 promissory note due December 31,
1996 (the "Note") issued by the Company. ("Designated Holder" shall have the
meaning ascribed thereto in the Note.) Lincoln hereby represents and
acknowledges that Lincoln approves of the transactions contemplated by this
Agreement and the Merger Agreement and that, therefore, such transactions will
not give rise to rights of acceleration under Section 5 of the Note.
3.5. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated hereby based upon arrangements made by or on
behalf of Lincoln or Stockholder.
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4. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Lincoln and Stockholder as follows:
4.1. Authority Relative to This Agreement. Purchaser has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part of
Purchaser. This Agreement has been duly and validly executed and delivered by
Purchaser and, assuming the due authorization, execution and delivery by Lincoln
and Stockholder, constitutes a legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms.
4.2. No Conflict. The execution and delivery of this
Agreement by Purchaser does not, and the performance of this Agreement by
Purchaser will not, (a) require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental or regulatory authority,
domestic or foreign, except for (i) requirements of federal and state securities
laws, (ii) requirements arising out of the HSR Act, and (iii) requirements of
Applicable Insurance Regulations, (b) conflict with or violate the certificate
of incorporation or bylaws or equivalent organizational documents, if any, of
Purchaser, (c) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to Purchaser or by which any property or asset of
Purchaser is bound or affected, or (d) result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance of any nature whatsoever on any property or asset of Purchaser
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Purchaser
is a party or by which Purchaser or any property or asset of Purchaser is bound
or affected, except in each case to the extent any
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such breach or default, whether taken singly or in the aggregate, would not
have a material adverse effect on Purchaser or its ability to consummate the
transactions contemplated hereby.
4.3. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission from Lincoln or
Stockholder in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Purchaser.
5. Covenants of Lincoln and Stockholder.
5.1. No Disposition or Encumbrance of Shares; No Acquisition
of Shares. (a) Each of Lincoln and Stockholder hereby covenants and agrees
that, except as contemplated by this Agreement, neither Lincoln nor Stockholder
shall, and neither shall offer or agree to, sell, transfer, tender, assign,
hypothecate or otherwise dispose of, or create or permit to exist any security
interest, lien, claim, pledge, option, right of first refusal, agreement,
limitation on Stockholder's voting rights, charge or other encumbrance of any
nature whatsoever with respect to the Shares now owned or that may hereafter be
acquired by Lincoln or Stockholder.
(b) Each of Lincoln and Stockholder hereby covenants
and agrees that it shall not, and shall not offer to agree to, acquire any
additional shares of Common Stock, or options, warrants or other rights to
acquire shares of Common Stock, without the prior written consent of Purchaser.
5.2. No Solicitation of Transactions. (a) Neither Lincoln
nor Stockholder shall, directly or indirectly, through any agent or
representative or otherwise, solicit, initiate or encourage the submission of
any proposal or offer from any individual, corporation, partnership, limited
partnership, syndicate, person (including, without limitation, a "person" as
defined in section 13(d)(3) of the Securities Exchange Act of 1934, as amended),
trust, association or entity or government, political subdivision, agency or
instrumentality of a government (collectively, other than Purchaser and any
affiliate of Purchaser, a "Person") relating to (i) any acquisition or purchase
of all or any of the Shares or (ii) any acquisition or purchase of all or (other
than in the ordinary course of business) any portion of the assets of, or
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any equity interest in, the Company or any of its subsidiaries (each, a
"Subsidiary") or any business combination with the Company or any Subsidiary or
participate in any negotiations regarding, or furnish to any Person any
information with respect to, or otherwise cooperate in any way with, or assist
or participate in or facilitate or encourage, any effort or attempt by any
Person to do or seek any of the foregoing. Each of Lincoln and Stockholder
hereby represents that neither it nor its agents or representatives is now
engaged in any discussions or negotiations with any Person with respect to any
of the foregoing.
(b) Paragraph (a) of this Section 5.2 shall not
restrict Stockholder or any officer or director of Stockholder or its affiliates
from otherwise exercising the fiduciary duties owed by such officer or director
to the Company; provided, however, that Lincoln and Stockholder shall notify
Purchaser promptly of any such proposal or offer, or any inquiry or contact with
any Person with respect thereto, (but need not disclose the identity of the
Person making such proposal, offer, inquiry or contact and the terms and
conditions of such proposal, offer, inquiry or contact.
5.3. Compliance of Stockholder with This Agreement. Lincoln
covenants and agrees that it shall cause Stockholder to take all actions and
forbear from all actions, in each case, necessary in order that (a) all of
Stockholder's representations and warranties hereunder are true and correct and
(b) Stockholder fulfills all of its obligations hereunder.
6. Covenants and Acknowledgment of Purchaser.
6.1. No Exercise of Stock Option During Tender Offer.
Purchaser hereby covenants and agrees that, during the pendency of the Offer,
Purchaser shall not exercise the Stock Option.
6.2. Purchaser hereby acknowledges and agrees that if the
Offer Price for the Offer is increased, Stockholder shall be entitled to tender
and sell to Purchaser pursuant to the Offer all of the Shares at the increased
Offer Price.
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7. Voting Agreement; Proxy of Stockholder.
7.1. Voting Agreement. Each of Lincoln and Stockholder
hereby agrees that, during the time this Agreement is in effect, at any meeting
of the stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company, Stockholder shall (a) vote all of
the Shares in favor of the Merger, the Merger Agreement (as amended from time to
time) and any of the transactions contemplated by the Merger Agreement; (b) vote
the Shares against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of the Company under the Merger Agreement; and (c) vote the Shares
against any action or agreement that would impede, interfere with or attempt to
discourage the Offer or the Merger, including, but not limited to: (i) any
extraordinary corporate transaction (other than the Merger), such as a merger,
reorganization, recapitalization or liquidation involving the Company or any
Subsidiary; (ii) a sale or transfer of a material amount of assets of the
Company or any Subsidiary; (iii) any change in the management or board of
directors of the Company, except as otherwise agreed to in writing by Purchaser;
(iv) any material change in the present capitalization or dividend policy of the
Company; or (v) any other material change in the Company's corporate structure
or business.
7.2. Irrevocable Proxy. Each of Lincoln and Stockholder
agrees that, in the event Stockholder shall fail to comply with the provisions
of Section 7.1 hereof as determined by Purchaser in its sole discretion, such
failure shall result, without any further action by Stockholder, in the
irrevocable appointment of Purchaser as the attorney and proxy of Stockholder
pursuant to the provisions of section 212 of the DGCL, with full power of
substitution, to vote, and otherwise act (by written consent or otherwise) with
respect to all shares of Common Stock, including the Shares, that Stockholder is
entitled to vote at any meeting of stockholders of the Company (whether annual
or special and whether or not an adjourned or postponed meeting) or consent in
lieu of any such meeting or otherwise, on the matters and in the manner
specified in Section 7.1 hereof. THIS PROXY AND POWER OF
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ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Stockholder hereby
revokes, effective upon the execution and delivery of the Merger Agreement by
the parties thereto, all other proxies and powers of attorney with respect to
the Shares that Stockholder may have heretofore appointed or granted, and no
subsequent proxy or power of attorney (except in furtherance of Stockholder's
obligations under Section 7.1 hereof) shall be given or written consent executed
(and if given or executed, shall not be effective) by Stockholder with respect
thereto so long as this Agreement remains in effect.
8. Termination. Other than the Stock Option, the termination which
shall be governed by Section 2.2(a), this Agreement shall terminate on the date
(the "Termination Date") that is the earlier of
(i) the date upon which the Effective Date occurs and
(ii) (A) if the Merger Agreement is terminated
(I) by the Company in accordance section
9.1(b)(iii), 9.1(b)(iv) or 9.1(d)(ii) thereof,
(II) (a) by the Company in accordance with
section 9.1(b)(i) thereof, (b) no Acquisition
Proposal (as defined in the Merger Agreement)
shall be pending or shall have been proposed or
announced and (c) the Company shall not have
exercised its rights set forth in the proviso of
section 6.2 of the Merger Agreement,
(III) by the Parent in accordance with
Section 9.1(c)(ii) or 9.1(d)(ii) thereof,
(IV) by the Parent and the Company in
accordance with section 9.1(a) thereof, or
(V) (a) by the Company or the Parent
in accordance with Section 9.1(d)(i) thereof
and (b) no Acquisition Proposal shall be
pending or shall have been proposed or announced
and (c) the Company shall not have exercised
its rights set forth in the proviso of section
6.2 of the Merger Agreement,
the date of the termination of the Merger Agreement or
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(B) if the Merger Agreement is otherwise terminated in accordance
with section 9.1 of the Merger Agreement, the date four months after the date of
the termination of the Merger Agreement. Notwithstanding the foregoing, if (x)
the Merger Agreement has been terminated in a manner described in clause (ii)(B)
of this Section 8 and (y) on the date four months after the date of termination
of the Merger Agreement the Company shall be a party to an agreement with a
party, other than Purchaser (or an affiliate of Purchaser), that contemplates a
merger, acquisition, consolidation or similar transaction involving the Company
or any of "significant subsidiaries" (as defined in 17 C.F.R. Section
210.01-02), or any purchase of all or any significant portion of the assets or
any equity securities of the Company or any of such significant subsidiaries,
then the Termination Date shall be the date nine months after the date of
termination of the Merger Agreement.
9. Miscellaneous.
9.1. Expenses. Except as otherwise provided herein, all
costs and expenses incurred in connection with the transactions contemplated by
this Agreement shall be paid by the party incurring such expenses.
9.2. Further Assurances. Lincoln, Stockholder and Purchaser
will execute and deliver all such further documents and instruments and take all
such further action as may be necessary in order to consummate the transactions
contemplated hereby.
9.3. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
9.4. Entire Agreement. This Agreement constitutes the entire
agreement between Lincoln, Purchaser and Stockholder with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, between Lincoln, Purchaser and Stockholder with respect to the
subject matter hereof.
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9.5. Assignment. This Agreement shall not be assigned by
operation of law or otherwise, except that Purchaser may assign all or any of
its rights and obligations hereunder to any affiliate of Purchaser, provided
that no such assignment shall relieve Purchaser of its obligations hereunder if
such assignee does not perform such obligations.
9.6. Parties in Interest. This Agreement shall be binding
upon, inure solely to the benefit of, and be enforceable by, the parties hereto
and their successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
9.7. Amendment; Waiver. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto. Any party
hereto may (a) extend the time for the performance of any obligation or other
act of any other party hereto, (b) waive any inaccuracy in the representations
and warranties contained herein or in any document delivered pursuant hereto and
(c) waive compliance with any agreement or condition contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
9.8. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
9.9. Notices. Except as otherwise provided herein, all
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given (and
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shall be deemed to have been duly given upon receipt) by delivery in person, by
cable, facsimile transmission, telegram or telex or by registered or certified
mail (postage prepaid, return receipt requested) to the respective parties at
the following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 9.9):
if to Purchaser:
Humana Inc.
The Humana Building
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: W. Xxxxx Xxxxx
Chief Financial Officer
Facsimile: (000) 000-0000
Telephone (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to Lincoln:
Lincoln National Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to Stockholder:
American States Insurance Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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with a copy of all communications to Lincoln or Stockholder to:
Xxxxxxxxxx, Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
9.10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in New York without regard to any
principles of choice of law or conflicts of law of such state. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any state or federal court sitting in the City of New York.
9.11. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
9.12. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the date first written above.
HUMANA INC.
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
LINCOLN NATIONAL CORPORATION
By: /S/ XXX X. XXXXXXX
-----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Chairman & CEO
AMERICAN STATES INSURANCE COMPANY
By: /S/ F. XXXXXX XXXXXXXX
-----------------------------------------
Name: F. Xxxxxx XxXxxxxx
Title: President & CEO
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