EXHIBIT 2.1.1
AMENDMENT, WAIVER AND CONSENT
This Amendment, Waiver and Consent (this "Consent") is entered into as
of September 21, 2004, to be effective as of September 9, 2004, among COUNTRY
Life Insurance Company, Inc. an Illinois stock insurance company (the
"Acquiror"), COUNTRY Medical Plans, Inc., an Illinois stock insurance company
(the "Acquiror Sub") and Cotton States Life Insurance Company, a Georgia
domestic stock insurance company (the "Company").
RECITALS
WHEREAS, the parties hereto previously entered into an Agreement and
Plan of Merger, dated as of December 29, 2003 (the "Merger Agreement"), pursuant
to which the Acquiror Sub will be merged with and into the Company, with the
Company as the surviving corporation (the "Proposed Merger");
WHEREAS, pursuant to the terms and subject to the conditions set forth
in the Merger Agreement, the Merger Agreement may be terminated and the Proposed
Merger abandoned by either the Acquiror or the Company in the event that the
Proposed Merger is not completed on or before the Termination Date;
WHEREAS, the parties desire by mutual consent to extend the Termination
Date to January 31, 2005 (the "Termination Date Extension");
WHEREAS, pursuant to the terms and subject to the conditions set forth
in the Merger Agreement, the Acquiror has agreed to provide to each employee of
the Company certain employment benefits through December 31, 2004, and the
parties desire by mutual consent to extend such date to June 30, 2005 (the
"Employee Benefits Extension," and together with the Termination Date Extension,
the "Extension");
WHEREAS, Cotton States Mutual Insurance Company, a Georgia mutual
insurance company and an affiliate of the Company ("Cotton States Mutual"), has
previously entered into amended and restated management agreements (each, a
"Management Agreement" and, collectively, the "Management Agreements") with
certain of the executive officers of Cotton States Mutual and the Company;
WHEREAS, pursuant to the terms of the Merger Agreement and applicable
law, the parties' obligations to consummate the transactions contemplated by the
Merger Agreement are conditioned upon, among other things, receipt of all
necessary governmental approvals, consents and authorizations, including
regulatory approval of the Georgia Insurance and Safety Fire Commissioner;
WHEREAS, in connection with the Georgia Insurance and Safety Fire
Commissioner regulatory approval process, the Georgia Insurance Department (the
"Department") reviewed the potential payments to be made to certain executive
officers of the Company pursuant the terms of the Management Agreements;
WHEREAS, based on discussions with the Department, the Acquiror, the
Acquiror Sub and the Company concluded that certain amendments to the Management
Agreements, including without limitation, amendments providing for the
assumption by the Company of the full amount of any obligations that may become
due under the Management Agreements in the event of a "Change of Control" (as
that term is defined in the Management Agreements) (the "Amendment and
Assumption") were necessary to facilitate and expedite the granting by the
Department of regulatory approval of the Proposed Merger;
WHEREAS, the Amendment and Assumption may result in non-compliance by
the Company with respect to certain representations, warranties and covenants of
the Company as set forth in the Merger Agreement;
WHEREAS, each of the Acquiror, the Acquiror Sub and the Company have
determined that it is desirable to enter into the Extension;
WHEREAS, each of the Acquiror and the Acquiror Sub have determined that
it is desirable to provide its consent whereby each waives compliance by the
Company with respect to certain terms, provisions, covenants and agreements set
forth in the Merger Agreement; and
WHEREAS, capitalized terms used but not defined herein have the
meanings assigned to such terms in the Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth in the
Merger Agreement, to further induce the parties to consummate the Proposed
Merger, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Section 1. Incorporation of Recitals. The foregoing recitals are hereby
incorporated into and made a part of this Consent.
Section 2. Extension. Each of the parties hereto hereby agrees that
Section 7.01(b) of the Merger Agreement, shall be amended and replaced in its
entirety to read as follows:
(a) By either Acquiror or the Company, at any time prior to
the Effective Time, by action of the board of directors of
either Acquiror or the Company if (i) the Merger shall not
have been consummated by January 31, 2005, whether such date
is before or after the date of approval by the shareholders of
the Company (the "Termination Date"); provided, however, that
the right to terminate this Agreement pursuant to this Section
7.01 shall not be available to any party whose failure to
perform any of its obligations under this Agreement primarily
contributes to the failure of the Merger to be consummated by
such time; provided, further, that the Termination Date may be
extended not more than sixty days by either party by written
notice to the other party if the Merger shall not have been
consummated as a direct result of the condition set forth in
Section 6.01(b) failing to have been satisfied and the
extending party reasonably believes that the relevant
approvals will be obtained during such extension period, (ii)
its board of directors determines by majority vote that, any
statute, law, rule or regulation shall have been promulgated
that prohibits the consummation of the Merger or if any
Governmental Authority of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action
(which order, decree or ruling or other action each party
hereto shall use its reasonable best efforts to have vacated
or reversed in accordance with Section 5.02), in each case
restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order,
decree, ruling or other action shall have become final and
non-appealable or (iii) in the case of the Company, an event
or circumstance exists that results in any
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representation or warranty of Acquiror or Acquiror Sub
contained in this Agreement being untrue which would result in
a failure of a condition set forth in Sections 6.02(a),
6.02(b) or 6.02(c) and which cannot be cured or has not been
cured by the earlier of (A) twenty Business Days after the
giving of written notice to Acquiror of such event,
circumstance or breach and (B) the Termination Date or, in the
case of the Acquiror, an event or circumstance exists that
results in any representation or warranty of the Company or
any of its Subsidiaries contained in this Agreement being
untrue which would result in a failure of a condition set
forth in Sections 6.03(a), 6.03(b) or 6.03(c) and which cannot
be cured or has not been cured by the earlier of (A) twenty
Business Days after the giving of written notice to the
Company of such event, circumstance or breach and (B) the
Termination Date.
(b) Each of the parties hereto hereby agrees that the date
"December 31, 2004" in Section 5.13(b) and Section 5.13(f) of
the Merger Agreement shall be replaced with "June 30, 2005",
Section 3. Consent and Waiver of the Acquiror and the Acquiror Sub.
(a) To the extent the Amendment and Assumption would
constitute a violation or breach of the provisions of Section 3.06(b),
Section 3.08, Section 3.11, Section 3.14(a), Section 3.14(h), Section
3.17 or Section 5.13(a) of the Merger Agreement, the Acquiror and
Acquiror Sub consent to the amendment by the Company of the
corresponding sections of the Company's Disclosure Letter solely to
reflect the Amendment and Assumption; and
(b) To the extent the execution of the Amendment and
Assumption would constitute a violation or breach of the provisions of
Section 3.08, Section 3.14(h), Section 5.01(h), Section 5.01(i),
Section 5.01(m), Section 5.01(p), Section 5.01(r) or Section 5.01(t) of
the Merger Agreement, the Acquiror and the Acquiror Sub (i) consent to
the execution of the Amendment and Assumption; and (ii) waive any event
of default or default under such provisions solely with respect to such
execution of the Amendment and Assumption.
Section 4. Amendment of Collateral Documents. It is hereby agreed and
understood by the parties hereto that, effective as of the date of this Consent,
each reference to the Merger Agreement, the Company's Disclosure Letter or other
applicable defined terms shall be deemed a reference to such agreement or such
defined terms as the agreement or terms are modified by this Consent.
Section 5. Miscellaneous. The parties hereto agree that:
(a) Except as expressly amended and modified by this
Consent, the Merger Agreement and the Company's Disclosure Letter are
and shall continue to be in full force and effect in accordance with
the terms thereof;
(b) This Consent may be executed by the parties hereto in
counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument;
(c) This Consent shall be construed in accordance with
and governed by the internal laws, and not the laws of conflict, of the
State of Georgia;
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(d) The headings contained in this Consent are for ease
of reference only and shall not be considered in construing this
Consent; and
(e) A conformed copy of the Merger Agreement, as amended
from time to time, may be proposed and used for all purposes where a
copy of the Merger Agreement is required, including in connection with
the Proxy Statement and all filings with Governmental Authorities and
rating agencies.
(Remainder of Page Left Blank. Signature Page(s) Follow.)
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SIGNATURE PAGE TO AMENDMENT, WAIVER AND CONSENT
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
duly executed as of the day and year first above written.
COUNTRY LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxx Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxx Xxxxxxx
Title: Assistant Secretary
COUNTRY MEDICAL PLANS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
By: /s/ Xxxxx Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxx Xxxxxxx
Title: Assistant Secretary
COTTON STATES LIFE INSURANCE COMPANY
By: /s/ J. Xxxxxx Xxxxxx
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Name: J. Xxxxxx Xxxxxx
Title: Chairman, President and CEO
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