EXECUTION COPY
STOCK OPTION AGREEMENT dated as of November 22,
1998 (the "Agreement"), by and between PROVIDENT
COMPANIES, INC., a Delaware corporation ("Issuer"), and
UNUM CORPORATION, a Delaware corporation ("Grantee").
RECITALS
A. Issuer and Grantee have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"; defined terms
used but not defined herein have the meanings set forth in the Merger
Agreement), providing for, among other things, the merger of Grantee with
and into Issuer with Issuer as the surviving corporation in the Merger;
B. As a condition and inducement to Grantee's willingness to
enter into the Merger Agreement, the Stockholders Agreement and the UNUM
Stock Option Agreement, Grantee has requested that Issuer agree, and Issuer
has agreed, to grant Grantee the Option (as defined below); and
C. As a condition and inducement to Issuer's willingness to enter
into the Merger Agreement and this Agreement, Issuer has requested that
Grantee agree, and Grantee has agreed, to grant Issuer an option to
purchase shares of Grantee's common stock on substantially the same terms
as the Option;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, Issuer and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth
herein, Issuer hereby grants to Grantee an irrevocable option (the
"Option", which term shall, as applicable, be deemed to refer to an option
with respect to Issuer Preferred Stock (as defined in Section 2(b)) to
purchase up to 26,945,874 (as adjusted as set forth herein) shares (the
"Option Shares", which term shall, as applicable, be deemed to refer to
Issuer Preferred Option Shares (as defined in Section 2(b)), of Common
Stock, par value $1.00 per share ("Issuer Common Stock"), of Issuer at a
purchase price of $35.131 (as adjusted as set forth herein) per Option
Share (the "Purchase Price").
2. Exercise of Option. (a) Grantee may exercise the Option, with
respect to any or all of the Option Shares at any time, subject to the
provisions of Section 2(c), after the occurrence of any event as a result
of which the Grantee is entitled to receive the Termination Fee pursuant to
Section 5.09(b) of the Merger Agreement (a "Purchase Event"); provided,
however, that (i) except as provided in the last sentence of this Section
2(a), the Option will terminate and be of no further force and effect upon
the earliest to occur of (A) the Effective Time, (B) 18 months after the
first occurrence of a Purchase Event, and (C) termination of the Merger
Agreement in accordance with its terms prior to the occurrence of a
Purchase Event, unless, in the case of this clause (C), the Grantee has the
right to receive a Termination Fee following such termination upon the
occurrence of certain events, in which case the Option will not terminate
until the later of (x) six months following the time such Termination Fee
becomes payable and (y) the expiration of the period in which the Grantee
has such right to receive a Termination Fee, and (ii) any purchase of
Option Shares upon exercise of the Option will be subject to compliance
with the HSR Act and the obtaining or making of any consents, approvals,
orders, notifications, filings, expiration of applicable waiting periods or
authorizations, the failure of which to have obtained or made would have
the effect of making the issuance of Option Shares to Grantee illegal (the
"Regulatory Approvals"). Notwithstanding the termination of the Option,
Grantee will be entitled to purchase the Option Shares if it has exercised
the Option in accordance with the terms hereof prior to the termination of
the Option and the termination of the Option will not affect any rights
hereunder which by their terms do not terminate or expire prior to or as of
such termination.
(b) In the event that Grantee is entitled to and wishes to
exercise the Option, it will send to Issuer a written notice (an "Exercise
Notice"; the date of which being herein referred to as the "Notice Date")
to that effect which Exercise Notice also specifies the number of Option
Shares, if any, Grantee wishes to purchase pursuant to this Section 2(b),
the number of Option Shares, if any, with respect to which Grantee wishes
to exercise its Cash-Out Right (as defined herein) pursuant to Section
6(c), the denominations of the certificate or certificates evidencing the
Option Shares which Grantee wishes to purchase pursuant to this Section
2(b) and a date (an "Option Closing Date"), subject to the following
sentence, not earlier than three business days nor later than 20 business
days from the Notice Date for the closing of such purchase (an "Option
Closing"); provided, however, that in the event a sufficient
number of shares of Issuer Common Stock are not authorized to permit the
issuance by the Issuer of the number of Option Shares subject to such
Exercise Notice, the Issuer shall use its best efforts to cause such number
of shares of Issuer Common Stock to become authorized for issuance prior to
the Option Closing Date, or, in lieu thereof, a number of shares of
preferred stock, par value $1.00 per share, authorized and designated by
the Issuer in accordance with the DGCL ("Issuer Preferred Stock"), which
shares (or units thereof) of preferred stock shall be equal (in number and
voting power) to the number of Option Shares issuable pursuant to such
Exercise Notice and otherwise have terms that make such preferred stock
substantially similar to Issuer Common Stock (the "Issuer Preferred Option
Shares"). Any Option Closing will be at an agreed location and time in New
York, New York on the applicable Option Closing Date or at such later date
as may be necessary so as to comply with the first sentence of Section
2(a).
(c) Notwithstanding anything to the contrary contained herein,
any exercise of the Option and purchase of Option Shares shall be subject
to compliance with applicable laws and regulations, which may prohibit the
purchase of all the Option Shares specified in the Exercise Notice without
first obtaining or making certain Regulatory Approvals. In such event, if
the Option is otherwise exercisable and Grantee wishes to exercise the
Option, the Option may be exercised in accordance with Section 2(b) and
Grantee shall acquire the maximum number of Option Shares specified in the
Exercise Notice that Grantee is then permitted to acquire under the
applicable laws and regulations, and if Grantee thereafter obtains the
Regulatory Approvals to acquire the remaining balance of the Option Shares
specified in the Exercise Notice, then Grantee shall be entitled to acquire
such remaining balance. Issuer agrees to use its reasonable efforts to
assist Grantee in seeking the Regulatory Approvals.
In the event (i) Grantee receives official notice that a
Regulatory Approval required for the purchase of any Option Shares will not
be issued or granted or (ii) such Regulatory Approval has not been issued
or granted within six months of the date of the Exercise Notice, Grantee
shall have the right to exercise its Cash-Out Right pursuant to Section
6(c) with respect to the Option Shares for which such Regulatory Approval
will not be issued or granted or has not been issued or granted.
3. Payment and Delivery of Certificates. (a) At any Option
Closing, Grantee will pay to Issuer in immediately available funds by wire
transfer to a bank account
designated in writing by Issuer an amount equal to the Purchase Price
multiplied by the number of Option Shares to be purchased at such Option
Closing.
(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer will
deliver to Grantee a certificate or certificates representing the Option
Shares to be purchased at such Option Closing, which Option Shares will be
free and clear of all liens, claims, charges and encumbrances of any kind
whatsoever.
(c) Certificates for the Option Shares delivered at an Option
Closing will have typed or printed thereon a restrictive legend which will
read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK OPTION
AGREEMENT, DATED AS OF NOVEMBER 22, 1998, A COPY OF WHICH MAY BE
OBTAINED FROM THE SECRETARY OF PROVIDENT COMPANIES, INC. AT ITS
PRINCIPAL EXECUTIVE OFFICES."
It is understood and agreed that (i) the reference to restrictions arising
under the Securities Act in the above legend will be removed by delivery of
substitute certificate(s) without such reference if such Option Shares have
been registered pursuant to the Securities Act, such Option Shares have
been sold in reliance on and in accor dance with Rule 144 under the
Securities Act or Grantee has delivered to Issuer a copy of a letter from
the staff of the SEC, or an opinion of counsel in form and substance
reasonably satisfactory to Issuer and its counsel, to the effect that such
legend is not required for purposes of the Securities Act and (ii) the
reference to restrictions pursuant to this Agreement in the above legend
will be removed by delivery of substitute certificate(s) without such
reference if the Option Shares evidenced by certificate(s) containing such
reference have been sold or transferred in compliance with the provisions
of this Agreement under circumstances that do not require the retention of
such reference.
4. Representations and Warranties of Issuer. Issuer hereby
represents and warrants to Grantee as follows:
Authorized Stock. Issuer has taken all necessary corporate and
other action to authorize and reserve and, subject to the expiration
or termination of any required waiting period under the HSR Act, to
permit it to issue, and, at all times from the date hereof until the
obligation to deliver Option Shares upon the exercise of the Option
terminates, shall have reserved for issuance, upon exercise of the
Option, shares of Issuer Common Stock or, to the extent of any
deficiency in the amount of authorized Issuer Common Stock, Issuer
Preferred Option Shares necessary for Grantee to exercise the Option,
and Issuer will take all necessary corporate action to authorize and
reserve for issuance all additional shares of Issuer Common Stock
and/or Issuer Preferred Option Shares or other securities which may be
issued pursuant to Section 6 upon exercise of the Option. The shares
of Issuer Common Stock and/or Issuer Preferred Option Shares to be
issued upon due exercise of the Option, including all additional
shares of Issuer Common Stock and/or Issuer Preferred Option Shares or
other securities which may be issuable upon exercise of the Option or
any other securities which may be issued pursuant to Section 6, upon
issuance pursuant hereto, will be duly and validly issued, fully paid
and nonassessable, and will be delivered free and clear of all liens,
claims, charges and encumbrances of any kind or nature whatsoever,
including without limitation any preemptive rights of any stockholder
of Issuer.
5. Representations and Warranties of Grantee. Grantee hereby
represents and warrants to Issuer that:
Purchase Not for Distribution. Any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be
transferred or otherwise disposed of except in a transaction
registered, or exempt from registration, under the Securities Act.
6. Adjustment upon Changes in Capitalization, Etc. (a) In the
event of any change in the Issuer Common Stock by reason of a stock
dividend, split-up, reverse stock split, merger, recapitalization,
combination, exchange of shares, or similar transaction, the type and
number of shares or securities subject to the Option, and the Purchase
Price thereof, will be adjusted appropriately, and proper provision will be
made in the agreements governing such transaction, so that Grantee will
receive upon exercise of
the Option the number and class of shares or other securities or property
that Grantee would have received in respect of Issuer Common Stock if the
Option had been exercised immediately prior to such event or the record
date therefor, as applicable. Subject to Section 1, and without limiting
the parties' relative rights and obligations under the Merger Agreement, if
any additional shares of Issuer Common Stock are issued after the date of
this Agreement (other than pursuant to an event described in the first
sentence of this Section 6(a)), the number of shares of Issuer Common Stock
subject to the Option will be adjusted so that, after such issuance, it
equates 19.9% of the number of shares of Issuer Common Stock then issued
and outstanding, without giving effect to any shares subject to or issued
pursuant to the Option.
(b) Without limiting the parties' relative rights and obligations
under the Merger Agreement, in the event that Issuer enters into an
agreement (i) to consolidate with or merge into any person, other than
Grantee or one of its subsidiaries, and Issuer will not be the continuing
or surviving corporation in such consolidation or merger, (ii) to permit
any person, other than Grantee or one of its subsidiaries, to merge into
Issuer and Issuer will be the continuing or surviving corporation, but in
connection with such merger, the shares of Issuer Common Stock outstanding
immediately prior to the consummation of such merger will be changed into
or exchanged for stock or other securities of Issuer or any other person or
cash or any other property, or the shares of Issuer Common Stock
outstanding immediately prior to the consummation of such merger will,
after such merger, represent less than 50% of the outstanding voting
securities of the merged company, or (iii) to sell or otherwise transfer
all or substantially all of its assets to any person, other than Grantee or
one of its subsidiaries, then, and in each such case, the agreement
governing such transaction will make proper provision so that the Option
will, upon the consummation of any such transaction and upon the terms and
conditions set forth herein, be converted into, or exchanged for, an option
with identical terms appropriately adjusted to acquire the number and class
of shares or other securities or property that Grantee would have received
in respect of Issuer Common Stock if the Option had been exercised
immediately prior to such consolidation, merger, sale, or transfer, or the
record date therefor, as applicable and make any other necessary
adjustments.
(c) Notwithstanding that the Issuer may at any such time not have
sufficient authorized shares of Issuer Common Stock or may not have
authorized and designated the
Issuer Preferred Option Shares in accordance with the DGCL, in each case
issuable pursuant to exercise of the Option, if, at any time during the
period commencing on a Purchase Event and ending on the termination of the
Option in accordance with Section 2, Grantee sends to Issuer an Exercise
Notice indicating Grantee's election to exercise its right (the "Cash-Out
Right") pursuant to this Section 6(c), then Issuer shall pay to Grantee, on
the Option Closing Date, in exchange for the cancellation of the Option
with respect to such number of Option Shares as Grantee specifies in the
Exercise Notice, an amount in cash equal to such number of Option Shares
multiplied by the difference between (i) the average closing price, for the
10 NYSE trading days commencing on the 12th NYSE trading day immediately
preceding the Notice Date, per share of Issuer Common Stock as reported on
the NYSE Composite Transaction Tape (or, if not listed on the NYSE, as
reported on any other national securities exchange or national securities
quotation system on which the Issuer Common Stock is listed or quoted, as
reported in The Wall Street Journal (Northeast edition), or, if not
reported thereby, any other authoritative source) (the "Closing Price") and
(ii) the Purchase Price. Notwithstanding the termination of the Option,
Grantee will be entitled to exercise its rights under this Section 6(c) if
it has exercised such rights in accordance with the terms hereof prior to
the termination of the Option.
7. Registration Rights. Issuer will, if requested by Grantee at
any time and from time to time within three years of the exercise of the
Option, as expeditiously as possible prepare and file up to three
registration statements under the Securities Act if such registration is
necessary in order to permit the sale or other disposition of any or all
shares of securities that have been acquired by or are issuable to Grantee
upon exercise of the Option in accordance with the intended method of sale
or other disposition stated by Grantee, including a "shelf" registration
statement under Rule 415 under the Securities Act or any successor
provision, and Issuer will use its best efforts to qualify such shares or
other securities under any applicable state securities laws. Grantee agrees
to use reasonable efforts to cause, and to cause any underwriters of any
sale or other disposition to cause, any sale or other disposition pursuant
to such registration statement to be effected on a widely distributed
basis so that upon consummation thereof no purchaser or transferee will own
beneficially more than 4.9% of the then-outstanding voting power of Issuer.
Issuer will use reasonable efforts to cause each such registration
statement to become effective, to obtain all consents or waivers of
other parties which are required therefor, and to keep such registration
statement effective for such period not in excess of 180 calendar days from
the day such registration statement first becomes effective as may be
reasonably necessary to effect such sale or other disposition. The
obligations of Issuer hereunder to file a registration statement and to
maintain its effectiveness may be suspended for up to 60 calendar days in
the aggregate if the Board of Directors of Issuer shall have determined
that the filing of such registration statement or the maintenance of its
effectiveness would require premature disclosure of material nonpublic
information that would materially and adversely affect Issuer or otherwise
interfere with or adversely affect any pending or proposed offering of
securities of Issuer or any other material transaction involving Issuer.
Any registration statement prepared and filed under this Section 7, and any
sale covered thereby, will be at Issuer's expense except for underwriting
discounts or commissions, brokers' fees and the fees and disbursements of
Grantee's counsel related thereto. Grantee will provide all information
reasonably requested by Issuer for inclusion in any registration statement
to be filed hereunder. If, during the time periods referred to in the first
sentence of this Section 7, Issuer effects a registration under the
Securities Act of Issuer Common Stock for its own account or for any other
stockholders of Issuer (other than on Form S-4 or Form S-8, or any
successor form), it will allow Grantee the right to participate in such
registration, and such participation will not affect the obligation of
Issuer to effect demand registration statements for Grantee under this
Section 7; provided that, if the managing underwriters of such offering
advise Issuer in writing that in their opinion the number of shares of
Issuer Common Stock requested to be included in such registration exceeds
the number which can be sold in such offering, Issuer will include the
shares requested to be included therein by Grantee pro rata with the shares
intended to be included therein by Issuer. In connection with any
registration pursuant to this Section 7, Issuer and Grantee will provide
each other and any underwriter of the offering with customary
representations, warranties, covenants, indemnification, and contribution
in connection with such registration.
8. Limitation on Profit. (a) Notwithstanding any other provision
of this Agreement, in no event shall the Grantee's Total Profit (as defined
below) plus any Termination Fee paid to Grantee pursuant to Section 5.09(b)
of the Merger Agreement exceed in the aggregate $250 million and, if the
total amount that otherwise would be received by Grantee would exceed such
amount, the Grantee, at its sole election, shall either (i) reduce the
number of shares of
Issuer Common Stock or Issuer Preferred Stock, as the case may be, subject
to the Option, (ii) deliver to the Issuer for cancellation Option Shares
previously purchased by Grantee against the refund of the Purchase Price
therefore, (iii) pay cash to the Issuer or (iv) any combination thereof, so
that Grantee's actually realized Total Profit, when aggregated with such
Termination Fee so paid to Grantee, shall not exceed $250 million after
taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the
Option may not be exercised for a number of Option Shares as would, as of
the date of exercise, result in a Notional Total Profit (as defined below)
which, together with any Termination Fee theretofore paid to Grantee, would
exceed $250 million; provided, that nothing in this sentence shall restrict
any exercise of the Option permitted hereby on any subsequent date.
(c) As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) the amount received
by Grantee pursuant to Issuer's repurchase of the Option (or any portion
thereof) pursuant to Section 6(c), (ii)(x) the net cash amounts or the fair
market value of any property received by Grantee pursuant to the sale of
Option Shares (or any other securities into which such Option Shares are
converted or exchanged) to any unaffiliated party, but in no case less than
the fair market value of such Option Shares, less (y) the Grantee's
purchase price of such Option Shares, and (iii) the net cash amounts
received by Grantee on the transfer (in accordance with Section 12(g)
hereof) of the Option (or any portion thereof) to any unaffiliated party.
(d) As used herein, the term "Notional Total Profit" with respect
to any number of Option Shares as to which Grantee may propose to exercise
the Option shall be the Total Profit determined as of the date of such
proposal assuming for such purpose that the Option were exercised on such
date for such number of Option Shares and assuming that such Option Shares
(including any units of Issuer Preferred Stock intended to equate to Issuer
Common Stock), together with all other Option Shares (including any units
of Issuer Preferred Stock intended to equate to Issuer Common Stock) held
by Grantee and its affiliates as of such date, were sold for cash at the
closing market price on the NYSE for the Issuer Common Stock as of the
close of business on the preceding trading day (less customary brokerage
commissions.)
9. Transfers. The Option Shares may not be sold, assigned,
transferred, or otherwise disposed of except (i) in an underwritten public
offering as provided in Section 7 or (ii) to any purchaser or transferee
who would not, to the knowledge of the Grantee after reasonable inquiry,
immediately following such sale, assignment, transfer or disposal
beneficially own more than 4.9% of the then-outstanding voting power of the
Issuer; provided, however, that Grantee shall be permitted to sell any
Option Shares if such sale is made pursuant to a tender or exchange offer
that has been approved or recommended by a majority of the members of the
Board of Directors of Issuer (which majority shall include a majority of
directors who were directors as of the date hereof).
10. Listing. If Issuer Common Stock or any other securities to be
acquired upon exercise of the Option are then listed on the NYSE (or any
other national securities exchange or national securities quotation
system), Issuer, upon the request of Grantee, will promptly file an
application to list the shares of Issuer Common Stock or other securities
to be acquired upon exercise of the Option on the NYSE (and any such other
national securities exchange or national securities quotation system) and
will use reasonable efforts to obtain approval of such listing as promptly
as practicable.
11. Loss or Mutilation. Upon receipt by Issuer of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation
of this Agreement, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and
cancellation of this Agreement, if mutilated, Issuer will execute and
deliver a new Agreement of like tenor and date. Any such new Agreement
executed and delivered will constitute an additional contractual obligation
on the part of Issuer, whether or not the Agreement so lost, stolen,
destroyed, or mutilated shall at any time be enforceable by anyone.
12. Miscellaneous. (a) Expenses. Except as otherwise provided in
the Merger Agreement, each of the parties hereto will bear and pay all
costs and expenses incurred by it or on its behalf in connection with the
transactions contemplated hereunder, including fees and expenses of its own
financial consultants, investment bankers, accountants, and counsel.
(b) Amendment. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for
performance, will be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement
to assert any of its rights under this Agreement or otherwise will not
constitute a waiver of such rights.
(d) Entire Agreement; No Third-Party Beneficiaries. This
Agreement, the UNUM Stock Option Agreement, the Merger Agreement (including
the documents and instruments attached thereto as exhibits or schedules or
delivered in connection therewith), the Stockholders Agreement, the
Confidentiality Agreement and the Letter Agreement (i) constitute the
entire agreement, and supersede all prior agreements and understandings,
both written and oral, between the parties with respect to the subject
matter of this Agreement, and (ii) except as provided in Section 8.06 of
the Merger Agreement, are not intended to confer upon any person other than
the parties any rights or remedies.
(e) Governing Law. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Delaware, without
regard to the laws that might otherwise govern under applicable principles
of conflict of laws thereof.
(f) Notices. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and will be deemed
given if delivered personally, telecopied (which is confirmed), or sent by
overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
If to Issuer to:
Provident Companies, Inc.
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: F. Xxxx Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx Xxx Xxxx,
Xxx Xxxx 00000
Attention: H. Xxxxxx Xxxxx
Fax: (000) 000-0000; and
If to Grantee to:
UNUM Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with copies to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
(g) Assignment. Neither this Agreement, the Option nor any of the
rights, interests, or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by Issuer
or Grantee without the prior written consent of the other. Any assignment
or delegation in violation of the preceding sentence will be void. Subject
to the first and second sentences of this Section 12(g), this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
(h) Further Assurances. In the event of any exercise of the
Option by Grantee, Issuer and Grantee will execute and deliver all other
documents and instruments and take all other actions that may be reasonably
necessary in order to consummate the transactions provided for by such
exercise.
(i) Enforcement. The parties agree that irreparable damage would
occur and that the parties would not have any adequate remedy at law in the
event that any of
the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed
that the parties will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms
and provisions of this Agreement in any Federal court located in the State
of Delaware or in Delaware state court, the foregoing being in addition to
any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of Delaware
or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement, (ii)
agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and
(iii) agrees that it will not bring any action relating to this Agreement
or any of the transactions contemplated by this Agreement in any court
other than a Federal court sitting in the State of Delaware or a Delaware
state court.
13. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Amendment so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by
applicable law
in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement
to be signed by their respective officers thereunto duly authorized as of
the day and year first written above.
PROVIDENT COMPANIES, INC.,
by /s/ Xxxxx X. Xxx III
---------------------------------
Name: Xxxxx X. Xxx III
Title: Chairman, President
and Chief Executive
Officer
UNUM CORPORATION,
by /s/ J. Xxxxxx Xxxxxxxx
--------------------------------
Name: J. Xxxxxx Xxxxxxxx
Title: Chairman and Chief
Executive Officer
