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Exhibit 4.3
SHAREHOLDER'S AGREEMENT
Shareholder's Agreement, dated as of June , 2001, between State Farm
Mutual Insurance Company, a life insurance company organized under the laws of
the State of (together with all its current and future affiliates, the
"Shareholder"), and The Phoenix Companies, Inc., a corporation organized under
the laws of the State of Delaware (the "Company").
WHEREAS, Insurance Placement Services, Inc., an affiliate of the
Shareholder and Phoenix Home Life Mutual Insurance Company, a subsidiary of the
Company ("Phoenix Home"), have entered into a Master Agreement, dated as of
March 30, 2001 (as the same may be amended from time to time, the "Master
Agreement") and a Sales Agreement, dated as of March 30, 2001 (as the same may
be amended from time to time, the "Sales Agreement"), which provide, among other
things, for Phoenix Home to provide certain services and products, respectively,
to the Shareholder, its affiliates and their clients;
WHEREAS, the Shareholder and the Company have entered into a Standstill
Agreement, dated , 2001 (as the same may be amended from time to time,
the "Standstill Agreement"), which defines the future relationship between the
Shareholder and the Company, whether or not the Shareholder purchases shares of
common stock, par value $.01 per share of the Company ("Common Stock"), in the
Company's initial public offering;
WHEREAS, the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission in connection with the Company's initial
public offering of Common Stock has been declared effective, the Company has
entered into an underwriting agreement providing for the sale of shares of
Common Stock to the public at the price of $ per share (the "IPO Price"), and
the Shareholder has expressly committed to the underwriters to purchase
shares of Common Stock at the IPO Price (the occurrence of such purchase, the
"Closing");
WHEREAS, the Shareholder and the Company desire to provide for certain
matters concerning observation and cooperation rights of the Shareholder in
connection with its relationship with the Company.
NOW THEREFORE, the parties hereto agree as follows:
1. Certain Definitions. As defined herein, the term "affiliate" shall
mean a person or entity that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
another person or entity; the term "control" (including the terms "controlled
by" and "under common control with") being
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agreed to have the meaning ascribed to it by Rule 405 under the Securities Act
of 1933, as amended (the "Securities Act").
2. Appointment of Representative(s). For purposes of this Agreement, the
Shareholder shall appoint its Chairman of the Board, its Vice Chairman of the
Board and/or its Chief Executive Officer as its representatives
("Representatives"). The Shareholder shall provide prompt written notice to the
Company of its appointment of the Representatives.
3. Attendance at Board and Board Planning Committee Meetings. One
Representative shall be permitted to attend the meeting of the Board of
Directors of the Company held on or immediately prior to the date of the annual
meeting of the shareholders of the Company. One Representative shall also be
permitted to attend the meeting of the Planning Committee of the Board of
Directors of the Company held annually in the month of October. Notwithstanding
the provisions of the foregoing, the Representative shall not be permitted to
attend any part of such meetings of the Board of Directors or the Planning
Committee that the Chairman of the Board of Directors or such Planning
Committee, in his or her sole discretion, deems appropriate to hold as executive
sessions.
4. Meetings with Members of the Senior Management of the Company. One or
more senior members of the management of the Company and one or more
Representatives shall meet at least quarterly to discuss the business
relationship of the parties hereto and their business strategy for the future.
5. Advisory Committee of Phoenix Investment Partners, Ltd ("PXP").
(a) The Company shall establish an Advisory Committee ("Advisory
Committee") to advise the management of the Company's subsidiary, PXP, regarding
the objectives set forth in Section 5(b) below. The number of members of the
Advisory Committee shall be determined by the Company, in its sole discretion,
from time to time. The Advisory Committee shall include in its membership
representatives of the Company and PXP and one or more Representatives. The
Advisory Committee shall meet at least twice annually. The Advisory Committee
shall adopt such rules and procedures as it may deem necessary for the conduct
of its meetings.
(b) The Advisory Committee shall: analyze and discuss business
opportunities offering potential market share improvement, revenue enhancement
or cost reduction to PXP; discuss other issues relevant to PXP's ongoing
business and operations; and advise and make recommendations to the Board of
Directors of PXP. The Shareholder acknowledges that none of such advice or
recommendations shall be binding on the Board of Directors or management of PXP.
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6. Confidentiality. The Shareholder covenants and agrees that it shall
not, and it shall cause it Representative(s), directors and officers to not,
disclose any information relating to the Company and its subsidiaries and their
businesses gained by the Shareholder or its Representative(s), directors or
officers except to a limited group of its own directors, officers, agents and
employees who are actually engaged in, and need to know such information to
perform their duties and obligations pursuant to this Agreement. The Shareholder
further covenants and agrees that it shall not, and it shall cause its
Representative(s), directors, officers, agents and employees to not, at any time
during the term of this Agreement or after its termination, reveal, divulge, or
make known to any person, firm, corporation, or other business organization, any
information relating to the Company and its subsidiaries and their businesses
gained by the Shareholder or its Representative(s), directors, officers, agents
and employees during the performance of its duties and obligations under this
Agreement, except (a) as required by law, (b) as may be required in connection
with the assertion or defense of any dispute under this Agreement, and (c) for
information that is available to the public prior to the date of the Closing, or
thereafter becomes available to the public other than as a result of a breach of
this Section 6. The Shareholder shall cause each of its Representatives and such
other members of its senior management as the Company reasonably requests to
execute a confidentiality agreement to the same effect as the foregoing.
7. Compliance with Laws.
(a) The Shareholder acknowledges and agrees that, notwithstanding
any other provision of this Agreement, the Company's obligations to provide
information and access hereunder shall at all times be subject to its
obligations under the Federal securities laws, including without limitation the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as determined by the Company in its sole discretion.
(b) In addition to the provisions of Section 6, the Shareholder
further acknowledges that in the course of this Agreement it may acquire
material non-public information regarding the Company and agrees that it shall
treat such information consistent with the requirements of the Federal
securities laws, including without limitation the Securities Act and the
Exchange Act, and shall so instruct its Representative(s), directors, officers,
agents and employees who came into possession of such information.
8. Specific Performance. Each party hereto acknowledges that if any of
its covenants or agreements in this Agreement are not performed in accordance
with the terms hereof, the other party would not have an adequate remedy at law
for money damages, and therefore agrees that the other party shall be entitled
to specific enforcement of such covenants or agreements and to injunctive and
other equitable relief
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in addition to any other remedy to which the other party may be entitled, at law
or in equity.
9. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement may not be amended nor any of its provisions waived except by a
writing signed, in the case of an amendment, by each party hereto and, in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof unless the other party is
materially prejudiced thereby, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights and remedies provided by law. This
Agreement is not assignable by either of the parties without the prior written
consent of the other. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
10. Severability. If any term, provision or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions and restrictions of this
Agreement shall remain in full force and effect, unless such action would
substantially impair the benefits to either party of the remaining provisions
of this Agreement.
11. Notices. Any notices and other communications required to be
given pursuant to this Agreement shall be deemed to have been duly given or
made as of the date delivered or mailed if delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested), or
delivered by facsimile or by telex, as follows:
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If to the Company:
The Phoenix Companies, Inc.
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000-0000
Attention: President
with a copy to:
The Phoenix Companies, Inc.
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000-0000
Attention: General Counsel
If to the Shareholder:
State Farm Insurance Companies
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx
with a copy to:
State Farm Insurance Companies
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: General Counsel
12. Effectiveness of the Agreement. This Agreement shall become
effective upon the Closing.
13. Termination. This Agreement shall terminate upon the earlier of:
(i) the termination of, or material breach or default by the
Shareholder under, the Master Agreement or the Sales Agreement;
(ii) the termination of, or breach or default by the Shareholder
under, the Standstill Agreement;
(iii) the sale, transfer or other disposition by the Shareholder
of any interest in any shares of Common Stock of the Company such that the
Shareholder and its affiliates in the aggregate no longer own at least 4.9% of
the outstanding shares of Common Stock or such lesser amount as is offered to
the Shareholder in the Company's
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initial public offering, other than sales, transfers or
dispositions of additional shares of Common Stock acquired by
the Shareholder after the date of the Closing, without the
Company's prior written consent (the granting of which shall be
at the Company's sole discretion); and
(iv) the written agreement of the Company and the Shareholder to
terminate this Agreement.
This Section 13 and Sections 6, 8, 11, 14, 15, 16 and 17 shall survive
the termination of this Agreement.
14. Expenses. All costs and expenses, including travel, lodging and
other costs and expenses incurred in connection with the performance by each
party of its duties and obligations pursuant to this Agreement, shall be paid
by the party incurring such cost or expense.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law provisions thereof.
16. Jurisdiction. The parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in the United States District Court for the Southern
District of New York or, if such court shall not have jurisdiction over such
suit, any New York State court sitting in New York City, so long as such courts
shall have subject matter jurisdiction over such suit, action or proceeding,
and that any cause of action arising out of this Agreement shall be deemed to
have arisen from a transaction of business in the State of New York, and each
of the parties hereby irrevocably consents only with respect to such suits,
actions or proceedings to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Without limiting the foregoing, each party agrees that
service of process on such party by hand delivery as provided in Section 11
shall be deemed effective service of process on such party.
17. Waiver of Jury Trial. Each of the parties hereto irrevocably waives
any and all right to trial by jury in any legal proceeding arising out of or
related to this Agreement or the transactions contemplated hereby.
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18. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
19. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one agreement. A
signature of a party delivered by facsimile or other electronic communication
shall constitute an original signature of such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
STATE FARM MUTUAL INSURANCE
COMPANY
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Name:
Title:
THE PHOENIX COMPANIES, INC.
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Name:
Title:
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