EXHIBIT 2.2
AGREEMENT
AGREEMENT dated as of March 27, 1997 by and between
Textron Inc., a Delaware corporation ("Textron") and a
stockholder of The Xxxx Xxxxxx Corporation, a Massachusetts
corporation ("Xxxx Xxxxxx"), Provident Companies, Inc., a
Delaware corporation ("Provident"), and Patriot Acquisition
Corporation, a Massachusetts corporation and a wholly owned
subsidiary of Provident ("Newco").
WHEREAS, Xxxx Xxxxxx, Provident and Newco have
entered into an Amended and Restated Agreement and Plan of
Merger dated as of April 29, 1996 (the "Merger Agreement")
providing for the merger (the "Merger") of Newco with and into
Xxxx Xxxxxx pursuant to the terms and conditions of the Merger
Agreement; and
WHEREAS, in order to induce Provident to enter into
the Merger Agreement, Textron entered into an Amended and
Restated Voting Agreement dated as of April 29, 1996 (the
"Voting Agreement") pursuant to which Textron agreed to the
matters set forth therein; and
WHEREAS, in order to further induce Provident to
consummate the transactions contemplated thereby;
NOW, THEREFORE, for good and valuable consideration,
the receipt, sufficiency and adequacy of which is hereby
acknowledged, the parties hereby agree as follows.
1. Certain Severance Costs.
Textron shall promptly reimburse Xxxx Xxxxxx, on an
after-tax basis, for (i) the severance allowance paid by Xxxx
Xxxxxx to Xxxxxxx X. Xxxxx, Executive Vice President and
Operating Officer of Xxxx Xxxxxx, as a result of the
termination of employment of Xx. Xxxxx following the
consummation of the Merger pursuant to Section II.a. of the
Executive Employment Agreement made as of January 6, 1996
between Xxxx Xxxxxx and Xx. Xxxxx, and (ii) amounts paid to
Xx. Xxxxx in respect of 4,000 stock appreciation rights
("SARs") having an exercise price of $21.875 and 11,500
performance share units ("PSUs") representing a right to
receive $414,115, which SARs and PSUs became or will become
exercisable or payable as a result of the transactions
contemplated by the Merger Agreement.
2. Executive Aircraft Upgrade; Usage Prior to Closing.
In lieu of the Cessna Citation III (Aircraft Serial
No. 60-0127) to be provided by Textron to Xxxx Xxxxxx pursuant
to the terms of the first sentence of Section 4(G) of the
Voting Agreement, Textron agrees to contribute to Xxxx Xxxxxx
at or prior to the effective date of the Merger a Cessna
Citation V (Aircraft Serial No. C650-0247), free and clear of
all liens, which aircraft may be exchanged by Xxxx Xxxxxx or
Provident for a Cessna Citation VII (Aircraft Serial No. C650-
7057) also free and clear of all liens and without additional
payment from Xxxx Xxxxxx or Provident, as soon as the same
becomes available to Textron for such transfer, which is
currently anticipated to be no later than October 15, 1997,
and in the event that such Citation VII does not become
available for transfer by such date, a comparable aircraft at
the earliest opportunity thereafter. Textron further agrees
that neither Xxxx Xxxxxx nor Provident shall be liable for or
have any responsibility with respect to payments resulting
from the usage of aircraft provided by Textron to Xxxx Xxxxxx
or Provident prior to the effective date of the Merger.
Except to the extent modified by this Section 2, the
provisions of Section 4(b) of the Voting Agreement shall
remain in full force and effect, unaffected by this Agreement.
3. Proceeds of Sale of Provident Stock.
(a) Subject to compliance with applicable federal
and state securities laws and the provisions of the Standstill
Agreement, dated as of April 29, 1996, between Provident and
Textron (the "Standstill Agreement"), Textron hereby agrees to
use its reasonable efforts to sell for cash all shares of the
common stock of Provident ("Provident Common Stock") received
by Textron in the Merger (including any equity securities
received as a dividend or other distribution thereon, the
"Shares") as soon as practicable after the effective date of
the Merger, provided that the per share proceeds to Textron
from any sale are not less than the Threshold Price (as
defined below). Provident and Textron agree that by execution
and delivery of this Agreement, Textron hereby requests that
Provident effect the registration of all of the Shares under
the Securities Act of 1933, as amended (the "1933 Act"), in
accordance with the terms of the Registration Rights Agreement
dated as of April 29, 1996 by and between Textron and
Provident (the "Registration Rights Agreement"), and, in
connection therewith, Provident agrees to effect the
registration under the 1933 Act of all of the Shares at the
earliest possible date.
(b) Upon each sale of Shares, Textron shall
promptly pay Provident an amount per Share equal to the
difference (the "Appreciation") between the per share proceeds
to Textron (after subtracting all commissions and other costs
of sale) from such sale and $38.00 (appropriately adjusted for
subdivisions, combinations, splits and other adjustments in
the Provident Common Stock after the effective date of the
Merger, the "Threshold Price"); provided, however, that
Textron shall have no obligation pursuant to this paragraph
3(b) until, and only to the extent that, the Appreciation
received by Textron in respect of all such sales exceeds, in
the aggregate, $20 million (the "Textron Appreciation").
(c) In the event that Textron has not sold all of
the Shares within 11 months after the date of this Agreement,
Provident shall have the right, which may be exercised from
time to time at Provident's discretion, to repurchase some or
all of the Shares then held by Textron at a purchase price per
Share equal to the Threshold Price; provided, that until such
time as Textron has realized the entire Textron Appreciation,
the purchase price payable by Provident for each Share
purchased by Provident pursuant to this paragraph 3(c) shall
equal, if higher than the Threshold Price, the average of
closing prices for the Provident Common Stock as reported on
the New York Stock Exchange, Inc. Composite Transactions for
the ten (10) consecutive Trading Days (as defined in the
Merger Agreement) ending on the fifth Trading Day before the
day on which such Shares are purchased by Provident (and such
average will be adjusted for any stock dividend, split,
combination or reclassification that took effect during such
ten (10) Trading Day period). At the closing of each such
purchase (which shall occur on such date as may be specified
by Provident within ten Trading Days after delivery to Textron
of notice of Provident's exercise of such right), Textron will
deliver to Provident the Shares being purchased by Provident
against payment of the purchase price therefor by delivery of
a certified check or a wire transfer in the proper amount and
shall warrant that it has sole record and beneficial ownership
of such Shares and that the same are then free and clear of
all liens.
(d) In the event that Provident shall enter into an
agreement: (1) to consolidate with or merge into any person
and shall not be the continuing or surviving corporation of
such consolidation or merger; (ii) to permit any person to
merge into Provident and Provident shall be the continuing or
surviving corporation, but, in connection with such merger,
the then-outstanding shares of Provident Common Stock shall be
changed into or exchanged for stock or other securities of
Provident or any other person or cash or any other property or
the outstanding shares of Provident Common Stock immediately
prior to such merger shall after such merger represent less
than 50% of the outstanding shares and share equivalents of
the merged company; or (iii) to sell or otherwise transfer
shall or substantially all of its assets to any person, then,
and in each such case, (x) if such transaction shall result in
the Shares being converted into the right to receive a cash
payment from any person, such conversion shall be deemed to be
a sale of the Shares for purposes of paragraph 3(b) hereof and
Textron shall pay to Provident such portion of the
Appreciation realized by Textron as exceeds the Textron
Appreciation and (y) if such transaction shall result in the
Shares being converted into the right to receive consideration
other than cash, Provident shall be entitled to exercise the
right to repurchase the Shares pursuant to paragraph 3(c) at
any time after entry into such agreement and, from and after
consummation of the transaction contemplated by such
agreement, the provisions of this paragraph 3 shall apply,
with appropriate adjustments, to any securities into which the
Shares are converted and, as applicable, references in this
paragraph 3 to "Shares," "Provident," and "Threshold Price"
shall be deemed to be references to the securities into which
the Shares have been converted (the "Substitute Securities"),
each issuer of the Substitute Securities (each a "Substitute
Issuer"), and an amount per Substitute Security as corresponds
to the Threshold Price (the "Substitute Threshold Price"),
respectively.
4. Scheduling of Closing.
Provided the Closing (as defined in the Merger
Agreement) occurs not later than the close of business on the
date hereof, Provident and Newco hereby waive all conditions
to their obligations to effect the Merger set forth in the
Merger Agreement other than the conditions set forth in
Section 7.1(b) and Section 7.2(d) and Provident and Newco
agree to use their respective reasonable efforts to cause the
Closing to occur not later than the close of business on the
date hereof.
5. Miscellaneous.
(a) Notwithstanding the provisions of Section 7(a)
of the Voting Agreement, the parties agree that, if the Merger
occurs, the provisions of Sections 4, 5 and 6 of the Voting
Agreement shall survive termination of the Voting Agreement.
Except as expressly provided herein, nothing in this Agreement
shall be deemed to modify, amend, or supersede in any respect
any of the provisions of the Voting Agreement, the
Registration Rights Agreement, the Standstill Agreement or the
Amended and Restated Separation Agreement, dated as of April
29, 1996, by and among, Textron, Xxxx Xxxxxx and Provident.
(b) This Agreement shall be deemed a contract
under, and for all purposes shall be construed in accordance
with, the laws of the Commonwealth of Massachusetts, without
reference to its conflict of law principles.
(c) If any provision of this Agreement or the
application of such provision to any person or circumstances
shall be held invalid or unenforceable by a court of competent
jurisdiction, such provision or application shall be
unenforceable only to the extent of such invalidity or
unenforceability, and the remainder of such provision held
invalid or unenforceable and the application of such provision
to persons or circumstances, other than the party as to which
it is held invalid, and the remainder of this Agreement, shall
not be affected.
(d) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the date first above
written.
TEXTRON INC.
By /s/ Xxxxxxx X. Key
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Xxxxxxx X. Key
Executive Vice President &
Chief Financial Officer
PROVIDENT COMPANIES, INC.
By /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Vice President, Secretary &
Counsel
PATRIOT ACQUISITION CORPORATION
By /s/ Xxxxx X. Xxxx
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Secretary and Clerk
