EXHIBIT 5
AMENDED AND RESTATED VOTING AGREEMENT
AMENDED AND RESTATED VOTING AGREEMENT (this
"Agreement"), dated as of April 29, 1996 and as amended
and restated as of November 5, 1996, between Textron
Inc., a Delaware corporation and a stockholder (the
"Stockholder") of The Xxxx Xxxxxx Corporation, a
Massachusetts corporation (the "Company"), and Provident
Companies, Inc., a Delaware corporation ("Parent").
WHEREAS, the Company, Parent and Patriot
Acquisition Corporation, a Massachusetts corporation and
a wholly owned subsidiary of Parent ("Newco"), have
entered into an Amended and Restated Agreement and Plan
of Merger (as the same may be further amended from time
to time, the "Merger Agreement"), providing for the
merger (the "Merger") of Newco with and into the Company
pursuant to the terms and conditions of the Merger
Agreement; and
WHEREAS, the Stockholder owns of record and
beneficially 37,500,000 shares (the "Shares") of common
stock, par value $1.00 per share, of the Company (the
"Common Stock") and wishes to enter into this Agreement
with respect to the Shares; and
WHEREAS, in order to induce Parent to enter
into the Merger Agreement, the Stockholder has agreed,
upon the terms and subject to the conditions set forth
herein, (i) to vote the Shares at a meeting of the
Company's stockholders in favor of approval of the Merger
Agreement and (ii) to the other matters set forth herein;
NOW, THEREFORE, for good and valuable
consideration, the receipt, sufficiency and adequacy of
which is hereby acknowledged, the parties hereto agree as
follows:
1. Agreement to Vote Shares.
(a) Subject to Section 1(b) hereof, the
Stockholder agrees during the term of this Agreement to
vote the Shares, in person or by proxy, (i) in favor of
approval of the Merger Agreement at every meeting of the
stockholders of the Company at which such matters are
considered and at every adjournment thereof (each, a
"Stockholder Meeting") and (ii) against an Alternative
Proposal (as such term is defined in the Merger
Agreement).
(b) Notwithstanding anything to the
contrary contained herein, the obligations of the
Stockholder pursuant to Section 1(a) hereof with respect
to matters to be considered at any Stockholder Meeting
are subject to the following conditions:
(i) Parent and Newco shall have
performed in all material respects all of their
respective material obligations under the Merger
Agreement to have been performed at or prior to the date
of such Stockholder Meeting;
(ii) all representations and
warranties of Parent and Newco set forth in the Merger
Agreement shall be true and correct in all material
respects as of the date of such Stockholder Meeting as
though made on and as of such date (except for changes
permitted by the Merger Agreement and that those
representations which address matters only as of a
particular date shall remain true and correct as of such
date), except in any case for such failures to be true
and correct which would not have a Parent Material
Adverse Effect (as defined in the Merger Agreement);
(iii) there shall not be in effect
on the date of such Stockholder Meeting any statute,
rule, regulation, executive order, decree, ruling or
injunction or other order of a court or governmental or
regulatory agency of competent jurisdiction directing
that the transactions contemplated by the Merger
Agreement not be consummated; provided, however, that,
subject to the terms and provisions provided in the
Merger Agreement (including but not limited to Section
6.8 thereof), prior to invoking this condition each party
shall use its reasonable efforts to have any such decree,
ruling, injunction or order vacated; and
(iv) the Registration Statement
(as such term is defined in the Merger Agreement) to be
filed with the Securities and Exchange Commission (the
"SEC") by Parent under the Securities Act of 1933, as
amended (the "Act") to register the shares of Parent
Common Stock (as such term is defined in the Merger
Agreement) to be issued in the Merger shall have become
effective under the Act and shall not be the subject of
any stop order or proceeding by the SEC seeking a stop
order.
2. No Voting Trusts. The Stockholder agrees
that the Stockholder will not, nor will the Stockholder
permit any entity under the Stockholder's control to,
deposit any of the Stockholder's Shares in a voting trust
or subject any of its Shares to any arrangement with
respect to the voting of the Shares inconsistent with
this Agreement.
3. Limitation on Dispositions and Proxies.
During the term of this Agreement, the Stockholder agrees
not to sell, assign, pledge, transfer or otherwise
dispose of, or grant any proxies with respect to (except
for a proxy which is not inconsistent with the terms of
this Agreement) any of the Stockholder's Shares.
4. Other Agreements.
(a) Concurrently with the Closing (as
such term is defined in the Merger Agreement), the
Stockholder shall pay to Parent the sum of $25 million;
provided, that Parent may require that such payment be
made directly to the Company or that such payment be made
by means of a surplus note or other asset which may
properly be taken into account in determining risk-based
capital levels of the Company, in which event the
Stockholder shall deliver such surplus note or other
asset to Parent at or prior to the Effective Time.
(b) At or prior to the Effective Time (as
such term is defined in the Merger Agreement), the
Stockholder shall contribute to the Company, free and
clear of all liens, one used Cessna Citation III
(Aircraft Serial No. 60-0127). In addition, the
Stockholder shall contribute to the Company, free and
clear of all liens, as soon as the same becomes available
to the Stockholder from the manufacturer, one new Cessna
Citation V Ultra (the "V Ultra"). Notwithstanding the
foregoing, Parent may, by notice to the Stockholder prior
to the Effective Time, require that the Stockholder pay
to Parent or to the Company, as Parent may direct, the
cash value of the V Ultra and Parent or the Company, as
the case may be, shall thereupon purchase from the
Stockholder in exchange for such cash the V Ultra, which
shall be delivered as soon as the same shall become
available to the Stockholder from the manufacturer.
(c) The Stockholder agrees to make at or
prior to the Effective Time, a capital contribution to
the Company (which may, at the election of the
Stockholder, be by means of a surplus note or other asset
which may properly be taken into account in determining
risk-based capital levels, in which event the Stockholder
shall deliver such surplus note or other asset to Parent
at or prior to the Effective Time) in the amount of the
statutory reserve strengthening required by the
Commissioner of Insurance of the Commonwealth of
Massachusetts as a condition to granting any necessary
Consents in connection with the transactions contemplated
by the Merger Agreement; provided, however, that the
Stockholder's contribution after November 1, 1996
pursuant hereto shall be at least $100 million but shall
not under any circumstances exceed $180 million in the
aggregate for such capital contribution.
(d) Prior to the Effective Time, the risk
management personnel of Parent and the Stockholder shall
cooperate in obtaining the insurance coverage required to
be obtained by Parent pursuant to Section 6.11(b) of the
Merger Agreement and shall use their reasonable efforts
to determine the amount by which the cost of such
coverage including exposure relating to Company Reserve
Matters (as defined herein) would exceed the cost of such
coverage excluding exposure relating to the Company
Reserve matters (the "Excess Cost") and the Stockholder
shall reimburse Parent for such Excess Cost.
5. Limited Purpose Hold Harmless.
(a) From and after the Effective Time,
the Stockholder hereby agrees to defend and promptly to
reimburse and hold harmless the Company and each Company
Subsidiary, and their respective officers, directors,
employees, agents, successors and assigns, including
Parent and affiliates of Parent and their respective
officers, directors, employees and agents (collectively,
the "Parent Parties"), as the case may be, from and
against all Damages (as defined herein) asserted against,
resulting to, or imposed upon or incurred by any Parent
Party, by reason of, or resulting from, or in connection
with, any Third Party Claim (as defined herein) arising
out or relating to any Company Reserve Matter (as defined
herein). For purposes of this Section 5:
(x) "Third Party Claim" shall mean any
action, arbitration, cause of action, claim,
complaint, criminal prosecution, governmental or
other examination or investigation, hearing, or
administrative or other proceeding against or
involving a Parent Party, initiated or instigated
prior to May 28, 1998 by any stockholder or former
stockholder of the Company or the Stockholder, in
each case in their capacity as such, whether
individually on behalf of such stockholder or as
representative of a class of stockholders or
derivatively or on behalf of the Company (a
"Stockholder Action"), or by any governmental
authority or agency (a "Regulatory Action");
(y) "Company Reserve Matters" shall mean
any matters to the extent that the same arise out of
or are based upon (i) the adequacy of the Company's
or any Company Subsidiary's individual disability
reserves as of any period subsequent to December 31,
1993 and prior to the Closing Date, (ii) the
Company's or any Company Subsidiary's reserve
adequacy analysis as of any period subsequent to
December 31, 1993 and prior to the Closing Date,
(iii) the carrying value of the Company's or any
Company Subsidiary's deferred policy acquisition
costs or value assigned purchased insurance in force
as of any period subsequent to December 31, 1993 and
prior to the Closing Date, or (iv) any of the
Company's or any Company Subsidiary's or the
Stockholder's financial statements as filed with the
Securities and Exchange Commission, the
Massachusetts Division or any other regulatory
authority or the restatement thereof relating to any
period subsequent to December 31, 1993 as relates to
any of the matters set forth in clauses (i) through
(iii) above, provided, that Company Reserve Matters
shall not include any matter to the extent that the
same relates to (A) a claim that (1) the Company's
aggregate individual disability reserves be or
should have been increased to amounts in excess of
the amounts reflected in the Company's September 30,
1996 consolidated balance sheet or the Company's
aggregate deferred policy acquisition costs or value
assigned purchased insurance in force be or should
have been reduced to amounts less than the amounts
reflected in the Company's September 30, 1996
consolidated balance sheet, or (2) the aggregate
statutory individual disability reserves of the
Company Subsidiaries be or should have been
increased to amounts in excess of the amounts that
are (or which would be) reflected in statutory
financial statements of the Company Subsidiaries
immediately after giving effect to any additions
thereto required by the Massachusetts Division of
Insurance prior to the Effective Time or (B) the
authorization, execution and delivery of the Merger
Agreement by or on behalf of Parent or any of the
terms and provisions thereof, including the amount
of Merger Consideration; and
(z) "Damages" shall mean, to the extent
the same is not covered by available insurance in
effect immediately prior to the Effective Time or
policies required to be maintained by Parent
pursuant to Section 6.11 of the Merger Agreement,
(A) with respect to any Stockholder Action, any and
all damages, liabilities, losses, assessments,
costs, and expenses, including interest, penalties,
cost of investigation and defense, and reasonable
attorneys' and other professional fees and expenses
and (B) with respect to any Regulatory Action, any
and all costs and expenses incurred relating to
interest, fines, penalties, cost of investigation
and defense, and reasonable attorneys' and other
professional fees and expenses, but excluding any
and all other damages, liabilities, losses, or
assessments imposed or incurred in connection with
such Regulatory Action (including, in each such
case, reasonable attorneys' fees and expenses
incurred in enforcing the provisions of this Section
5 and any damages, liabilities, losses, assessments,
costs and expenses incurred pursuant to Section 6.11
of the Merger Agreement by a Parent Party in
connection with a Third Party Claim arising out of
or relating to a Company Reserve Matter).
(b) The obligations and liabilities of
the parties under this Section 5 shall be subject to the
following terms and conditions:
(i) A claim under this Section 5
(a "Claim") shall be made by a Parent Party (a "Claiming
Party") by delivery of a written notice requesting that
the Stockholder defend, reimburse and hold harmless such
Claiming Party and specifying, in light of the
information then known to such Claiming Party, the basis
on which such claim is asserted, an estimate (if then
reasonable to make) of the amount of asserted Damages and
containing (by attachment or otherwise) such other
information as such Claiming Party shall have concerning
the Third Party Claim on which such Claim is based.
(ii) The Claiming Party shall give
the Stockholder written notice of a Third Party Claim
promptly after receipt by the Claiming Party of notice
thereof, and the Stockholder, on behalf of the Claiming
Party, may undertake the defense, compromise and
settlement thereof by representatives of its own choosing
reasonably acceptable to the Claiming Party. The failure
of the Claiming Party to notify the Stockholder of such
Third Party Claim shall not relieve the Stockholder of
any liability that it may have with respect to such Third
Party Claim except to the extent the Stockholder
demonstrates that the defense of such Third Party Claim
is prejudiced by such failure. The assumption of the
defense, compromise and settlement of any such Third
Party Claim by the Stockholder shall be an acknowledgment
of the obligation of the Stockholder to defend, reimburse
and hold harmless the Claiming Party with respect to such
Claim hereunder. If the Claiming Party desires to
participate in, but not control, any such defense,
compromise and settlement, it may do so at its sole cost
and expense; provided, however, that if any Third Party
Claim is asserted by or in the name of any governmental
agency or authority or seeks equitable relief, where in
each such case there is a reasonable probability, in the
opinion of the Claiming Party, that such Third Party
Claim or the litigation or resolution thereof may
materially and adversely affect the Claiming Party or any
of its affiliates other than as a result of monetary
damages, the Claiming Party may participate in, but not
control, such defense, compromise and settlement at the
Stockholder's cost and expense, up to an aggregate amount
of $200,000 for such cost and expense. If, however, the
Stockholder fails or refuses to undertake the defense of
such Third Party Claim within ten (10) days after written
notice of such claim has been given to the Stockholder by
the Claiming Party, the Claiming Party shall have the
right to undertake, at the Stockholder's expense, the
defense, compromise and settlement of such claim with
counsel of its own choosing.
(iii) No settlement of a Third
Party Claim under this Section 5 shall be made without
the prior written consent by or on behalf of the
Stockholder, which consent shall not be unreasonably
withheld or delayed. Consent shall be presumed in the
case of any settlement of $50,000 or less in connection
with all Third Party Claims relating to any such
settlement where the Stockholder has not responded within
five (5) business days of delivery to the Stockholder of
notice of a proposed settlement. If the Stockholder
assumes the defense of such a Third Party Claim, (A) no
compromise or settlement thereof may be effected by the
Stockholder without the Claiming Party's consent (which
shall not be unreasonably withheld or delayed) unless (x)
there is no finding or admission of any violation of law
or any violation of the rights of any person and no
effect on any other claim that may be made against the
Claiming Party, (y) the sole relief provided is monetary
damages that are paid in full by the Stockholder, and (z)
the compromise or settlement includes, as an
unconditional term thereof, the giving by the claimant or
the plaintiff to the Claiming Party of a release, in form
and substance reasonably satisfactory to the Claiming
Party, from all liability in respect of such Third Party
Claim, and (B) the Claiming Party shall have no liability
with respect to any compromise or settlement thereof
effected without its consent (which shall not be
unreasonably withheld or delayed).
(iv) In connection with the
defense, compromise or settlement of any Third Party
Claim, the parties to this agreement shall execute such
powers of attorney as may reasonably be necessary or
appropriate to permit participation of counsel selected
by any party hereto and, as may reasonably be related to
any such claim or action, shall provide access to the
counsel, accountants and other representatives of each
party during normal business hours to all properties,
personnel, books, tax records, contracts, commitments and
all other business records of such other party and will
furnish to such other party copies of all such documents
as may reasonably be requested (certified, if requested).
(v) Upon determination of the
amount of a Claim, whether by agreement between the
Claiming Party and the Stockholder or by an arbitration
award or by any other final adjudication, the Stockholder
shall pay the amount of such Claim within ten (10) days
of the date such amount is determined.
6. Specific Performance. Each party hereto
acknowledges that it will be impossible to measure in
money the damage to the other party if a party hereto
fails to comply with the obligations imposed by this
Agreement, and that, in the event of any such failure,
the other party will not have an adequate remedy at law
or in damages. Accordingly, each party hereto agrees
that injunctive relief or other equitable remedy, in
addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not
oppose the granting of such relief on the basis that the
other party has an adequate remedy at law. Each party
hereto agrees that it will not seek, and agrees to waive
any requirement for, the securing or posting of a bond in
connection with any other party's seeking or obtaining
such equitable relief.
7. Term of Agreement; Termination.
(a) Subject to Section 10(f), the term of
this Agreement shall commence on the date hereof, and
such term and this Agreement shall terminate upon the
earliest to occur of (i) the Effective Time; (ii) the
date on which the Merger Agreement is terminated in
accordance with its terms; (iii) the date on which the
Board of Directors of the Company withdraws or materially
modifies or changes its recommendation of the Merger
Agreement if the Board of Directors of the Company after
consultation with its counsel determines that the failure
to take such action could reasonably be deemed a breach
of its fiduciary duties to the Company's stockholders
under applicable law; and (iv) May 28, 1997. Upon such
termination, no party shall have any further obligations
or liabilities hereunder; provided, however, that such
termination shall not relieve any party from liability
for any breach of this Agreement prior to such
termination.
(b) If (i) an Alternative Proposal (as
such term is defined in the Merger Agreement) which
provides that the Company's stockholders will receive in
excess of $26.00 per share of Common Stock is then
outstanding, and (ii) at a meeting of stockholders of the
Company held for the purpose of voting on a proposal to
approve the Merger Agreement, the Stockholder shall have
failed to vote the Shares in favor of such proposal then,
unless Parent shall be entitled to receive the
Termination Fee (as defined in the Merger Agreement)
pursuant to Section 8.5(b) of the Merger Agreement and
provided that Parent shall not be in material breach of
its obligations hereunder or under the Merger Agreement,
the Stockholder will pay Parent the sum of $22,500,000 as
promptly as practicable, but not later than three
business days following such meeting, and such payment
will be made by wire transfer of immediately available
funds to an account designed by Parent. Notwithstanding
anything in this Agreement to the contrary, the fee which
may become payable under this Section 7(b) shall be the
sole and exclusive remedy available to Parent for the
Stockholder's failure to vote the Shares in accordance
with the terms of this Agreement.
8. Entire Agreement. This Agreement
supersedes all prior agreements, written or oral, among
the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the
parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified,
and no provisions hereof may be modified or waived,
except by an instrument in writing signed by all parties
hereto. No waiver of any provisions hereof by any party
shall be deemed a waiver of any other provisions hereof
by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
9. Notices. All notices, consents, requests,
instructions, approvals and other communications provided
for herein shall be in writing and shall be deemed to
have been duly given if mailed, by first class or
registered mail, three (3) business days after deposit in
the United States Mail, or if telexed or telecopied, sent
by telegram, or delivered by hand or reputable overnight
courier, when confirmation is received, in each case as
follows:
If to the Stockholder:
Textron Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Executive Vice President
and General Counsel
Telecopy: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
If to Parent:
Provident Companies, Inc.
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx & Bird
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other persons or addresses as may be
designated in writing by the party to receive such
notice. Nothing in this Section 9 shall be deemed to
constitute consent to the manner and address for service
of process in connection with any legal proceeding
(including litigation arising out of or in connection
with this Agreement), which service shall be effected as
required by applicable law.
10. Miscellaneous.
(a) Nothing contained in this Agreement
shall be construed as creating any liability on the part
of the Stockholder under the Merger Agreement.
(b) This Agreement shall be deemed a
contract made under, and for all purposes shall be
construed in accordance with, the laws of the
Commonwealth of Massachusetts, without reference to its
conflicts 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
the 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.
(e) All Section headings herein are for
convenience of reference only and are not part of this
Agreement, and no construction or reference shall be
derived therefrom.
(f) The obligations of the Stockholder
set forth in this Agreement shall not be effective or
binding upon the Stockholder until after such time as the
Merger Agreement is executed and delivered by the
Company, Parent and Newco.
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as of the date
first written above.
PROVIDENT COMPANIES, INC.
By: /s/ J. Xxxxxx Xxxxxxxx
________________________
Name: J. Xxxxxx Xxxxxxxx
Title: President
TEXTRON INC.
By: /s/ Xxxxxxx X. Key
________________________
Name: Xxxxxxx X. Key
Title: Executive Vice President
and Chief Financial Officer
