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EXHIBIT 2.3
AMENDMENT NO. 1 TO
STOCK ACQUISITION AGREEMENT
This Amendment No. 1 ("Amendment") dated as of January 2, 1998 to that
certain Stock Acquisition Agreement ("Agreement") dated as of October 20, 1997,
is entered into among the parties to the Agreement, Xxxxxx Life Insurance
Company, a Missouri corporation, Xxxxxx Insurance Group, Inc., a Missouri
corporation, ACCEL International Corporation, a Delaware corporation, and also
Acceleration National Insurance Company, an Ohio corporation. All capitalized
terms used but not defined in this Amendment shall have the meanings defined for
them in the Agreement.
WHEREAS, Xxxxxx and Accel are the parties to the Agreement; and
WHEREAS, subsequent to the execution of the Agreement, XXXX has been
made a defendant in the North Dakota suit Xxxxxx et al. x. XXXX et al.
("Xxxxxx"); and
WHEREAS, Xxxxxx and Accel have been unable to agree as to the nature
and size, if any, of the contingent liability to which XXXX may be exposed as a
result of Xxxxxx;
NOW, THEREFORE, the parties agree as follows:
1. Additional Indemnification. In addition to and not in place of the
obligations of Accel to indemnify Xxxxxx pursuant to Section 11.1(a)(i) of the
Agreement, Accel hereby agrees to (i) fully assume and to directly pay, without
further demand by XXXX or Xxxxxx, all defense costs of Xxxxxx and of any other
litigation which may be filed against XXXX in the future in any jurisdiction
which asserts claims for damages arising out of the same class of policies
written by XXXX which are at issue in Xxxxxx ("Future Litigation"), and (ii)
directly pay any settlement costs, judgments and/or fines or other liabilities
incurred in connection with the disposition of Xxxxxx and in the disposition of
any Future Litigation. The defense of Xxxxxx shall continue to be conducted by
Messrs. Squire, Xxxxxxx & Xxxxxxx, L.L.P. ("SS&D"). It is understood and agreed
that upon closing of the transactions contemplated by the Agreement and this
Amendment, SS&D shall continue to represent both XXXX and Accel. The parties to
the Agreement waive any conflict of interest, or potential conflict of interest,
which may arise by virtue of SS&D's concurrent representation of XXXX and Accel.
Further, the parties waive any objection and shall not seek to disqualify SS&D
from representing Accel in any matter in which Accel's interests may be adverse
to the interest of any other party.
The indemnification provided by this Section 1 shall expire by its
terms when and if there is a final, non-appealable determination that class
certification in Xxxxxx is denied.
2. Insurance. The obligations of Accel undertaken pursuant to Section 1 of this
Amendment shall be insured by a surety bond written by Acceleration National
Insurance Company in favor of XXXX ensuring performance by Accel of the
foregoing obligations, which bond shall have a coverage limit of $3,000,000 and
which shall expire by its terms when and if there is a final,
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non-appealable determination that class certification in Xxxxxx is denied, or
else when there has otherwise been a final, non-appealable resolution of Xxxxxx
and all amounts to be paid by Accel. The policy limit of such surety bond shall
not be construed to limit the dollar amount of the primary obligations of Accel
pursuant to this Amendment.
3. Confirmation of Agreement. Except as expressly modified by this Amendment,
the Agreement is otherwise ratified and reconfirmed as of the date hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
XXXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx,
Authorized Signatory
XXXXXX INSURANCE GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx,
Authorized Signatory
ACCEL INTERNATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx,
President
ACCELERATION NATIONAL INSURANCE COMPANY,
as to Section 2 only
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx,
President
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