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EXHIBIT 10.49
AMENDMENT NO. 4 TO
STOCK PURCHASE AND EXCHANGE AGREEMENT
THIS AMENDMENT NO. 4 (the "Amendment"), dated as of the 1st day of
April, 2000, by and among GE Financial Assurance Holdings, Inc., a Delaware
corporation, Phoenix Group Holdings, Inc., a Connecticut corporation, PM
Holdings, Inc., a Connecticut corporation, and GE Life and Annuity Assurance
Company, a Virginia corporation.
WITNESSETH:
WHEREAS, the parties hereto entered into a Stock Purchase and
Exchange Agreement dated as of December 9, 1999 (as amended to date, the
"SPEA"); and
WHEREAS, at that time the parties contemplated that PGH or its
Affiliates would provide certain transition services to the PGH Subsidiaries
after the Second Closing pursuant to certain Ancillary Agreements; and
WHEREAS, GEFA has requested that the nature, extent and duration of
such services be expanded beyond what the parties had originally contemplated,
and
WHEREAS, as a consequence, certain representations and warranties
of PMH and PGH, including the related Schedules, are no longer accurate;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows.
1. DEFINITIONS
All capitalized terms not otherwise defined herein shall have the meaning
accorded to them in the SPEA.
2. SCHEDULES
PGH shall be entitled, prior to the Second Closing, to amend Schedules
3.4(b) and 3.10 of the SPEA, and any other affected Schedules, in each case
only insofar as they pertain to software licenses, in order to accurately
address in its representations and warranties the expanded scope of services
agreed to by the parties under the Computer Services Agreement and the
Transition Services Agreement.
3. EFFECT OF AMENDMENTS TO SCHEDULES
The above-referenced amendments shall be treated for all purposes as though
they had been made prior to execution of the SPEA and thus, shall not form
the basis, on any theory, for any liability of PGH or its Affiliates to PAL,
GEFA or their Affiliates.
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4. SOFTWARE LICENSES
a. Notwithstanding any provision in the SPEA to the contrary including,
without limitation, Sections 3.4 and 3.10 of the SPEA and Schedules 3.4
and 3.10 thereto, except as provided in the Computer Services Agreement,
dated as of December 9, 2000, and the related work orders, including all
schedules thereof (the "Agreed-Upon Assignments and Outsourcing
Consents"), neither PGH nor any of its Affiliates shall have any
obligation to seek or obtain the assignment to PAL, GEFA or any of their
Affiliates of the licensed software identified on such schedules.
Accordingly, anything in the SPEA to the contrary notwithstanding, the
failure by PGH and its Affiliates to seek or obtain any such
assignments, other than the Agreed-Upon Assignments and Outsourcing
Consents, shall not be grounds for any recovery against PGH or its
Affiliates by PAL, GEFA or any of their Affiliates nor shall any damages
resulting from such failure be counted against the "Basket" in Section
10.2 of the SPEA.
b. A new subsection d to Section 9.6 of the SPEA shall be added to state as
follows:
Software Licenses. PGH or its Affiliates shall have received the
Agreed-Upon Assignments and Outsourcing Consents and all consents
required from third parties to enable PGH or its Affiliates to provide
the outsourcing services contemplated under the Computer Services
Agreement and the Outsourcing Transition Services Agreement, as
ultimately negotiated, including, without limitation, those required
with respect to the software currently being used to perform such
services.
5. CONFLICTS BETWEEN CONTRACTS
In the event any provision in the Computer Services Agreement, as ultimately
executed, conflicts with the SPEA, the former shall prevail.
6. MISCELLANEOUS
6.1 No Other Amendments.
Except as expressly provided herein, the SPEA remains unaltered and in
full force and effect.
6.2 Counterparts.
This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same amendment.
6.3 Governing Law.
This Amendment shall be construed, performed and enforced in accordance
with the laws of the State of Connecticut without regard to the
conflicts of law principles thereof.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to
be executed by their undersigned duly authorized offices.
PM HOLDINGS, INC. GE FINANCIAL ASSURANCE
HOLDINGS, INC.
/s/ Xxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: Senior Vice President,
Secretary, and
General Counsel
PHOENIX GROUP HOLDINGS, INC. GE LIFE AND ANNUITY ASSURANCE
COMPANY
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: Senior Vice President
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