EXHIBIT 8
PROVIDENT COMPANIES, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of May 31,
1996, between Zurich Insurance Company, a Swiss corporation ("Zurich" and,
together with any purchaser of Common Stock (as defined below) pursuant to the
Stock Purchase Agreement (as defined below) collectively, the "Investor"), and
Provident Companies, Inc., a Delaware corporation (the "Company").
R E C I T A L S
WHEREAS, on May 31, 1996 the parties hereto signed the original
Registration Rights Agreement and such parties desire to amend and restate such
Agreement as of such date; and
WHEREAS, this Amended and Restated Registration Rights Agreement is
being executed on November 27, 1996 as of May 31, 1996; and
WHEREAS, the Investor has, pursuant to the terms of an Amended and
Restated Common Stock Purchase Agreement, entered into as of November 27, 1996
and dated as of May 31, 1996, by and among the Company and the Investor (as the
same may be amended or supplemented from time to time, the "Stock Purchase
Agreement"), agreed to purchase shares of Common Stock, par value $1.00 per
share, of the Company (the "Common Stock"); and
WHEREAS, the Company has agreed, as a condition precedent to the
Investor's obligations under the Stock Purchase Agreement, to grant the Investor
certain registration rights; and
WHEREAS, the Company and the Investor desire to define the registration
rights of the Investor on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITION
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As used in this Agreement, the following terms have the
respective meanings set forth below:
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended;
Existing Holder: shall mean Textron, Inc. or any member of the Family
Group, and shall include any transferees thereof who are entitled to
registration rights from the Company pursuant to agreements between the Company
and Textron, Inc. or the Company and the members of the Family Group.
Family Group: shall mean the stockholders of the Company set forth on
Exhibit A hereto.
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean any Holder or Holders who in the
aggregate are Holders of more than 10% of the then outstanding Registrable
Securities;
Person: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
register, registered and registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) the shares of Common Stock
issued under the Stock Purchase Agreement, (B) any additional shares of Common
Stock acquired by the Investor and (C) any stock of the Company issued as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, the shares of Common Stock referred to in clause (A) or (B);
provided, that Registrable Securities shall not include (i) securities with
respect to which a registration statement with respect to the sale of such
securities has become effective under the Securities Act and all such securities
have been disposed of in accordance with such registration statement, or (ii)
such securities as are actually sold pursuant to Rule 144 (or any successor
provision thereto) under the Securities Act;
Registration Expenses: shall mean all expenses incurred by the Company
in compliance with Sections 2(a), (b) and (c) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders, blue sky fees and expenses and the expense of any
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special audits incident to or required by any such registration (but
excluding the compensation of regular employees of the Company, which shall be
paid in any event by the Company);
Security, Securities: shall have the meaning set forth in Section 2(1)
of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended; and
Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel for all the Holders.
2. REGISTRATION RIGHT
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(a) Requested Registration.
----------------------
(i) Request for Registration. If the Company shall receive from
an Initiating Holder, at any time, a written request that the Company
effect any registration with respect to all or a part of the
Registrable Securities, the Company will:
(A) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(B) as soon as practicable, use its reasonable best efforts to
effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so requested
and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in
such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining in such request as are
specified in a written request received by the Company within 10
business days after written notice from the Company is given under
Section 2(a)(i)(A) above; provided that the Company shall not be
obligated to effect, or take any action to effect, any such
registration pursuant to this Section 2(a):
(u) Solely with respect to underwritten registrations
requested pursuant to this Agreement, if the Company shall have
previously effected an underwritten registration with respect
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to Registrable Securities pursuant to Section 2(b) hereof,
the Company shall not be required to effect any underwritten
registration pursuant to this Section 2(a) until a period of
180 days shall have elapsed from the effective date of the most
recent such previous registration; provided that if, in the
most recent such previous registration, participation pursuant
to Section 2(b) hereof shall not have been to the extent
requested pursuant to Section 2(b) hereof, then the Company
shall not be required to effect any underwritten registration
pursuant to this Section 2 (a) until a period of 90 days shall
have elapsed from the effective date of the most recent such
previous registration;
(v) If, upon receipt of a registration request pursuant to
this Section 2(a), the Company is advised in writing (with a
copy to the Initiating Holder) by a recognized national
independent investment banking firm selected by the Company
that, in such firm's opinion, a registration at the time and on
the terms requested would adversely affect any public offering
of securities of the Company by the Company (other than in
connection with benefit and similar plans) or by or on behalf
of any shareholder of the Company exercising a demand
registration right (collectively, a "Company Offering") with
respect to which the Company has commenced preparations for a
registration prior to the receipt of a registration request
pursuant to this Section 2(a), the Company shall not be
required to effect a registration pursuant to this Section 2(a)
until the earlier of (i) 30 days after the completion of such
Company Offering, (ii) promptly after any abandonment of such
Company Offering or (iii) 60 days after the date of receipt of
a registration request pursuant to this Section 2(a); provided,
however, that the periods during which the Company shall not be
required to effect a registration pursuant to this Section 2(a)
together with any periods of suspension under Section 2(i)
hereof may not exceed 90 days in the aggregate during any
period of 12 consecutive months;
(w) If the Registrable Securities requested by all Holders
to be registered pursuant to such request are included in, and
eligible for sale under, the Shelf Registration (as defined
below);
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(x) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of
process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in
such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations thereunder;
(y) After the Company has effected three (3) such
registrations pursuant to this Section 2(a) (in the aggregate
for all Holders) and such registrations have been declared or
ordered effective and the sales of such Registrable Securities
shall have closed; provided, that Holders shall not have the
right to request an underwritten registration pursuant to this
Section 2(a) more than one (1) time in any six-month period; or
(z) If the Registrable Securities requested by all Holders
to be registered pursuant to such request do not have an
anticipated aggregate public offering price (before any
underwriting discounts and commissions) of not less than
$10,000,000.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 2(a)(ii) below,
include other Securities of the Company which are held by Persons who, by virtue
of agreements with the Company, are entitled to include their Securities in any
such registration ("Other Stockholders").
(ii) Underwriting. If the Initiating Holders intend to distribute
the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 2(a). If Other Stockholders request
inclusion in any such registration, the Holders shall offer to include
the securities of such Other Stockholders in the underwriting and may
condition such offer on their acceptance of the further applicable
provisions of this Section 2. The Holders whose shares are to be
included in such registration and the Company shall (together with all
Other Stockholders proposing to distribute their securities through
such underwriting) enter into underwriting and related agreements in
customary form with the representative of the underwriter or
underwriters selected for such underwriting by the Initiating Holders
and reasonably acceptable to the Company. Such underwriting agreement
will contain such representations and warranties by the Company and
such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 2(f)
hereof and the provision of opinions of counsel and accountants'
letters to the effect and to the extent provided in Section 2(e)
hereof, and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Holders.
The Company shall cooperate fully with the Holders and the underwriters
in connection with any underwritten offering. Notwithstanding any other
provision of this Section 2(a), if the representative advises the
Holders in writing that marketing factors require a limitation on the
number of shares to be underwritten, the securities of the Company held
by Other Stockholders shall be excluded from such registration to the
extent so required by such limitation. If, after the exclusion of such
shares, further reductions are still required, the number of shares
included in the registration by each Holder shall be reduced on a pro
rata basis (based on the number of shares held by such Holder), by such
minimum number of shares as is necessary to comply with such request.
No Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. If any Other Stockholder who has
requested inclusion in such registration as provided above disapproves
of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the
Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the
Company and officers and directors of the Company may include its or
their securities for its or their own account in such registration if
the representative so agrees and if the number of Registrable
Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be
limited.
(b) Company Registration.
--------------------
(i) If the Company shall determine to register any of its equity
securities either for its own account or for the account of Other
Stockholders, other than a registration relating solely to benefit
plans, or a registration relating solely to a Commission Rule 145
transaction, or a registration on any registration form which does not
permit secondary sales or does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company
will:
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(A) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which
the Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by the Holders
within ten (10) business days after the giving of the written
notice from the Company described in clause (i) above, except as
set forth in Section 2(b)(ii) below. Such written request shall
specify the amount of Registrable Securities intended to be
disposed of by a Holder and may specify all or a part of the
Holders' Registrable Securities.
Notwithstanding the foregoing, if, at any time after giving such
written notice of its intention to effect such registration and prior
to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not
to register such equity securities the Company may, at its election,
give written notice of such determination to the Holders and thereupon
the Company shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such
equity securities (but not from its obligation to pay Registration
Expenses to the extent incurred in connection therewith as provided
herein), without prejudice, however, to the rights (if any) of Holders
immediately to request that such registration be effected as a
registration under Section 2(a) hereof.
(ii) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting,
the Company shall so advise each of the Holders as a part of the
written notice given pursuant to Section 2(b)(i)(A). In such event, the
right of each of the Holders to registration pursuant to this Section
2(b) shall be conditioned upon such Holders' participation in such
underwriting and the inclusion of such Holders' Registrable Securities
in the underwriting to the extent provided herein. The Holders whose
shares are to be included in such registration shall (together with the
Company and the Other Stockholders distributing their securities
through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or
underwriters selected for the underwriting by the Company or such Other
Stockholders, as the case may be. Such underwriting agreement will
contain such representations and warranties by the Company and such
other terms and provisions as are
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customarily contained in underwriting agreements with respect to
secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 2(f)
hereof and the provision of opinions of counsel and accountants'
letters to the effect and to the extent provided in Section 2(e), and
the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall
also be made to and for the benefit of the Holders whose shares are to
be included in such registration. Notwithstanding any other provision
of this Section 2(b), if the representative determines that marketing
factors require a limitation on the number of shares to be
underwritten, the Company shall so advise all holders of securities
requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall
be allocated in the following manner: The securities of the Company
held by officers, directors and Other Stockholders of the Company
(other than securities held by Existing Holders or holders who by
contractual right demanded such registration ("Demanding Holders"))
shall be excluded from such registration and underwriting to the extent
required by such limitation, and, if a limitation on the number of
shares is still required, the number of shares that may be included in
the registration and underwriting by each of the Holders, Existing
Holders which are not Demanding Holders with respect to such
registration and Demanding Holders with respect to such registration
which are not Existing Holders shall be reduced, on a pro rata basis
(based on the number of shares held by such holder), by such minimum
number of shares as is necessary to comply with such limitation;
provided, however, that in the event that an Existing Holder is a
Demanding Holder with respect to such registration, the number of
shares of Registrable Securities proposed to be included in any such
registration by each Holder shall be reduced on a pro rata basis (based
on the number of shares held by such holder) prior to any reduction in
the number of shares to be included in such registration by such
Demanding Holder. If any of the Holders or any officer, director or
Other Stockholder disapproves of the terms of any such underwriting, he
may elect to withdraw therefrom by written notice to the Company and
the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
(c) Shelf Registration. (i) On or before the earlier of December
15, 1996 or ten business days following the effectiveness of the
Company's Registration Statement on Form S-4 containing the Joint Proxy
Statement/Prospectus to be circulated in connection with the Merger (as
defined in the Stock Purchase Agreement), the Company shall file a
"shelf" registration statement pursuant to Rule 415 under
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the Securities Act (the "Shelf Registration") with respect to the
Registrable Securities to be issued under the Stock Purchase Agreement.
The Company shall (A) use its reasonable best efforts to have the Shelf
Registration declared effective on or before the Closing Date (as
defined in the Stock Purchase Agreement) or as soon thereafter as
practicable and (B) subject to Section 2(i) hereof, use its reasonable
best efforts to keep the Shelf Registration continuously effective from
the date such Shelf Registration is declared effective until the date
of termination of this Agreement pursuant to Section 2(j) hereof in
order to permit the prospectus forming a part thereof to be usable by
Holders during such period. Except as set forth in Section 2(c)(iii)
below, the Shelf Registration may not include other securities of the
Company which are held by Other Stockholders.
(ii) Subject to Section 2(i) hereof, the Company shall supplement
or amend the Shelf Registration, (A) as required by the registration
form utilized by the Company or by the instructions applicable to such
registration form or by the Securities Act or the rules and regulations
promulgated thereunder, (B) to include in such Shelf Registration any
additional securities that become Registrable Securities by operation
of the definition thereof and (C) following the written request of an
Initiating Holder pursuant to Section 2(c)(iii) below, to cover offers
and sales of all or a part of the Registrable Securities by means of an
underwriting including the incorporation of any information required
pursuant to Section 2(e)(x) below. The Company shall furnish to the
Holders of the Registrable Securities to which the Shelf Registration
relates copies of any such supplement or amendment sufficiently in
advance (but in no event less than five business days in advance) of
its use and/or filing with the Commission to allow the Holders a
meaningful opportunity to comment thereon.
(iii) The Holders may, at their election and upon written notice
by an Initiating Holder to the Company, subject to the limitations set
forth in clauses (u), (v), (x), (y) and (z) of Section 2(a)(i)(B)
hereof, effect offers and sales under the Shelf Registration by means
of one or more underwritten offerings, in which case the provisions of
Section 2(a)(ii) above shall apply to any such underwritten
distribution of securities under the Shelf Registration and such
underwriting shall, if sales of Registrable Securities pursuant thereto
shall have closed, be regarded as the exercise of one of the
registration rights contemplated by Section 2(a) hereof. In the event
of such an election, and, without the consent of the Holders of a
majority of the then outstanding Registrable Securities, under no other
circumstances, the Shelf Registration may, subject to
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Section 2(a)(ii) above, be amended to include other shares of
Common Stock which are held by Other Stockholders.
(d) Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 2 (including all Registration Expenses incurred in connection with the
Shelf Registration and any supplements or amendments thereto, whether or not it
becomes effective, and whether all, none or some of the Registrable Securities
are sold pursuant to the Shelf Registration) shall be borne by the Company, and
all Selling Expenses shall be borne by the Holders of the securities so
registered pro rata on the basis of the number of their shares so registered;
provided, however, that if, as a result of the withdrawal of a request for
registration by any of the Holders, as applicable, the registration statement
does not become effective, the Holders and Other Stockholders requesting
registration may elect to bear the Registration Expenses (pro rata on the basis
of the number of their shares so included in the registration request, or on
such other basis as such Holders and Other Stockholders may agree), in which
case such registration shall not be counted as a registration pursuant to
Section 2(a)(i)(B)(y).
(e) Registration Procedures. In the case of each registration effected
by the Company pursuant to this Section 2, the Company will keep the Holders, as
applicable, advised in writing as to the initiation of each registration and as
to the completion thereof. At its expense, the Company will:
(i) other than the Shelf Registration, the obligations in respect
of which are set forth in Section 2(c)(i)(B) above, keep such
registration effective for a period of one hundred eighty (180) days or
until the Holders, as applicable, have completed the distribution
described in the registration statement relating thereto, whichever
first occurs;
(ii) furnish to each Holder, and to any underwriter before filing
with the Commission, copies of any registration statement (including
all exhibits) and any prospectus forming a part thereof and any
amendments and supplements thereto (including all documents
incorporated or deemed incorporated by reference therein prior to the
effectiveness of such registration statement and including each
preliminary prospectus, any summary prospectus or any term sheet (as
such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, which
documents, other than documents incorporated or deemed incorporated by
reference, will be subject the review of the Holders and any such
underwriter for a period of at least five business days, and the
Company shall not file any such registration statement or such
prospectus or any amendment or supplement to such
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registration statement or prospectus to which any Holder or any
such underwriter shall reasonably object within five business days
after the receipt thereof; a Holder or such underwriter(s), if any,
shall be deemed to have reasonably objected to such filing only if the
registration statement, amendment, prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission;
(iii) furnish to each Holder and to any underwriter, such number
of conformed copies of the applicable registration statement and of
each amendment and supplement thereto (in each case including all
exhibits) and such number of copies of the prospectus forming a part of
such registration statement (including each preliminary prospectus, any
summary prospectus or any term sheet (as such term is used in Rule 434
under the Securities Act)) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, including without
limitation documents incorporated or deemed to be incorporated by
reference prior to the effectiveness of such registration, as each of
the Holders or any such underwriter, from time to time may reasonably
request;
(iv) to the extent practicable, promptly prior to the filing of
any document that is to be incorporated by reference into any
registration statement or prospectus forming a part thereof subsequent
to the effectiveness thereof, and in any event no later than the date
such document is filed with the Commission, provide copies of such
document to the Holders, if requested, and to any underwriter, make
representatives of the Company available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as any Holder
or any such underwriter reasonably may request;
(v) make available at reasonable times for inspection by the
Holders, any underwriter participating in any disposition pursuant to
such registration and any attorney or accountant retained by the
Holders or any such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and cause
the officers, directors and employees of the Company to supply all
information reasonably requested by the Holders and any such
underwriters, attorneys or accountants in connection with such
registration subsequent to the filing of the applicable registration
statement and prior to the effectiveness of the applicable registration
statement;
(vi) use its reasonable best efforts (x) to register or qualify
all Registrable Securities and other securities covered by such
registration under such other
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securities or blue sky laws of such States of the United States of
America where an exemption is not available and as the sellers of
Registrable Securities covered by such registration shall reasonably
request, (y) to keep such registration or qualification in effect for
so long as the applicable registration statement remains in effect, and
(z) to take any other action which may be reasonably necessary or
advisable to enable such sellers to consummate the disposition in such
jurisdictions of the securities to be sold by such sellers, except that
the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
where it is not so qualified, or to subject itself to taxation in any
such jurisdiction, or to execute a general consent to service of
process in effecting such registration, qualification or compliance,
unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act or applicable rules
or regulations thereunder;
(vii) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered with
or approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the
Company and counsel to the Holders of Registrable Securities to enable
the Holders thereof to consummate the disposition of such Registrable
Securities;
(viii) subject to Section 2(i) hereof, promptly notify each Holder
of Registrable Securities covered by a registration statement (A) upon
discovery that, or upon the happening of any event as a result of
which, the prospectus forming a part of such registration statement, as
then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (B) of the
issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation of
proceedings for that purpose, (C) of any request by the Commission for
(1) amendments to such registration statement or any document
incorporated or deemed to be incorporated by reference in any such
registration statement, (2) supplements to the prospectus forming a
part of such registration statement or (3) additional information, (D)
of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and at the request of
any such Holder promptly prepare and furnish to it a reasonable number
of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as
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thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ix) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of any such registration, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction;
(x) if requested by any Initiating Holder, or any underwriter,
promptly incorporate in such registration statement or prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as the Initiating Holder and any underwriter may reasonably
request to have included therein, including, without limitation,
information relating to the "plan of distribution" of the Registrable
Securities, information with respect to the principal amount or number
of shares of Registrable Securities being sold to such underwriter, the
purchase price being paid therefor and any other terms of the offering
of the Registrable Securities to be sold in such offering and make all
required filings of any such prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(xi) furnish to the Holders, addressed to them, an opinion of
counsel for the Company, dated the date of the closing under the
underwriting agreement, if any, or the date of effectiveness of the
registration statement if such registration is not an underwritten
offering, and use its reasonable best efforts to furnish to the
Holders, addressed to them, a "cold comfort" letter signed by the
independent certified public accountants who have certified the
Company's financial statements included in such registration, covering
substantially the same matters with respect to such registration (and
the prospectus included therein) and, in the case of such accountants'
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten
public offerings of securities and such other matters as the Holders
may reasonably request;
(xii) provide promptly to the Holders upon request any document
filed by the Company with the
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Commission pursuant to the requirements of Section 13 and Section
15 of the Exchange Act; and
(xiii) use its reasonable best efforts to cause all Registrable
Securities included in any registration pursuant hereto to be listed on
each securities exchange on which securities of the same class are then
listed or, if not then listed on any securities exchange, to be
eligible for trading in any over-the-counter market or trading system
in which securities of the same class are then traded.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as applicable,
each of its officers, directors, members and partners, and each person
controlling each of the Holders, with respect to each registration
which has been effected pursuant to this Section 2, and each
underwriter, if any, and each person who controls any underwriter,
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or
the Exchange Act or any rule or regulation thereunder applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and
will reimburse each of the Holders, each of its officers, directors,
members and partners, and each person controlling each of the Holders,
each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred
in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the
Company by the Holders or underwriter and stated to be specifically for
use therein.
(ii) Each of the Holders will, if Registrable Securities held by
it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company,
each of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter, each
- 14 -
Other Stockholder and each of their officers, directors, members
and partners, and each person controlling such Other Stockholder
against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document
made by such Holder, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements by such Holder therein not misleading, and will
reimburse the Company and such Other Stockholders, directors, officers,
partners, members, persons, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder and stated
to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder and under clause (vi)
below shall be limited to an amount equal to the net proceeds to such
Holder of securities sold as contemplated herein.
(iii) Each party entitled to indemnification under this Section
2(f) (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom; provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld) and the Indemnified Party may
participate in such defense at such party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the fees and expenses of one such
counsel for all Indemnified Parties shall be at the expense of the
Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 2 unless
the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party (which consent
shall not be unreasonably withheld or delayed), consent to entry of any
judgment or
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enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability in respect to
such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
loss, liability, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on
the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue (or alleged untrue) statement of a
material fact or the omission (or alleged omission) to state a material
fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any underwritten
public offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement
shall be controlling.
(vi) The foregoing indemnity agreement of the Company and Holders
is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement in question becomes
effective or the amended prospectus filed with the Commission pursuant
to Commission Rule 424(b) (the "Final Prospectus"), such indemnity or
contribution agreement shall not inure to the benefit of any
underwriter or Holder (but only if such Holder was required to deliver
such Final Prospectus) if a copy of the Final Prospectus was
- 16 -
furnished to the underwriter and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act.
(g) Information by the Holders. Each of the Holders holding securities
included in any registration shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Section 2.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times;
(ii) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144, and
of the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as the Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Holder
to sell any such securities without registration.
(i) Holdback Agreement; Postponement. Notwithstanding the provisions of
Sections 2(a),(b) and (c), if the Board of Directors of the Company determines
in good faith that it is in the best interests of the Company (A) not to
disclose the existence of facts surrounding any proposed or pending acquisition,
disposition, strategic alliance or financing transaction involving the Company
or (B) for any purpose, to suspend the registration rights set forth herein, the
Company may, by notice to the Holders in accordance with Section 4(a), (1)
suspend the rights of the Holders to make sales pursuant to the Shelf
Registration and (2) postpone any registration which is requested pursuant to
Section 2(a), in each case for such a period of time as the Board of Directors
may determine; provided
- 17 -
that (x) such periods of suspension together with any periods of
suspension effected pursuant to Section 2(a)(i)(B)(v) hereof may not exceed 90
days in the aggregate during any period of 12 consecutive months and (y) the
Company may not impose such a suspension or a postponement pursuant to Section
2(a)(i)(B)(v) following the printing and distribution of a preliminary
prospectus in any underwritten public offering of Registrable Securities
pursuant to Section 2(a)(i) or 2(c)(iii) (except such suspension, not to exceed
10 days, which results from an event that is not within the reasonable control
of the Company). Notwithstanding the provisions of Section 2(a)(i)(B)(v) or this
Section 2(i), the Company shall not suspend the registration rights set forth
herein at any time during which any similar rights of the Existing Holders are
not similarly suspended.
(j) Termination. The registration rights set forth in Section 2(a)
shall not be available to any Holder if, in the opinion of counsel to the
Company, all of the Registrable Securities then owned by such Holder could be
sold in any 90-day period pursuant to Rule 144 (without giving effect to the
provisions of Rule 144(k)).
(k) Assignment. The registration rights set forth in Section 2 hereof
may be assigned, in whole or in part, to any transferee of Registrable
Securities (who shall be considered thereafter to be a Holder (provided that any
transferee who is not an affiliate of Investor shall be a Holder only with
respect to such Registrable Securities so acquired and any stock of the Company
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of, such Registrable Securities) and shall be bound by all
obligations and limitations of this Agreement).
3. INTERPRETATION OF THIS AGREEMENT
--------------------------------
(a) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
- 18 -
4. MISCELLANEOUS
-------------
(a) Notices.
-------
(i) All communications under this Agreement shall be in
writing and shall be delivered by facsimile or by hand or mailed by
overnight courier or by registered or certified mail, postage
prepaid:
(A) if to the Company, to Provident Companies, Inc., 0
Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Fax No.: (423)
755-2590, Attention: Chief Financial Officer, or at such other
address as it may have furnished in writing to the Investors;
(B) if to the Investor, at the address listed on Schedule
I hereto, or at such other address as may have been furnished
the Company in writing.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by
courier, on the first business day following the date of such
mailing; and if mailed by registered or certified mail, on the
third business day after the date of such mailing.
(b) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Investor
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Investors may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investors in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(c) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties.
(d) Entire Agreement; Amendment and Waiver. This Agreement constitutes
the entire understanding of the parties hereto and supersedes all prior
understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Holders of a majority of the then
outstanding Registrable Securities.
- 19 -
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(f) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement.
(g) Remedies. Each Holder of Registrable Securities, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended and understood that all of the rights and privileges
of each of the Holders shall be enforceable to the fullest extent permitted by
law.
- 20 -
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
PROVIDENT COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
INVESTOR:
ZURICH INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Representative
- 21 -
SCHEDULE I
Name and Address
of Investor
-----------
ZURICH INSURANCE COMPANY
Xxxxxxxxxx 0
X.X. Xxx
Xx-0000
Xxxxxx, Xxxxxxxxxxx
Attention: General Counsel
with copies to:
Zurich Center Resource Limited
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
Facsimile No.: (000) 000-0000
Attention: General Counsel
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
ZURICH INSURANCE COMPANY
Xxxxxxxxxx 0
X.X. Xxx
Xx-0000
Xxxxxx, Xxxxxxxxxxx
Attention: General Counsel
