STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made and entered
into as of this 6th day of September 1998, by and between Zurich Insurance
Company ("Zurich"), Centre Reinsurance Limited ("Centre Re"), Zurich Reinsurance
(North America), Inc., Empire Fire and Marine Insurance Company, Universal
Underwriters Insurance Company, Universal Underwriters Life Insurance Company
and Fidelity and Deposit Company of Maryland (collectively, the "Sellers"), and
Nooga I, LLC, a Delaware limited liability company (the "Buyer").
WHEREAS, the Sellers desire to sell to the Buyer, and the
Buyer desires to purchase from the Sellers an aggregate of 12,698,414 shares
(the "Shares") of Common Stock, par value $1.00 per share ("Common Stock"), of
Provident Companies, Inc. ("Provident"), for the consideration and upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereby agree as follows:
1. Purchase and Sale of the Shares. Upon the terms and subject to
the conditions set forth in this Agreement, the Sellers hereby agree to sell the
Shares to the Buyer, and Buyer hereby agrees to purchase the Shares from the
Sellers, at a purchase price per share equal to $33.25. The number of Shares to
be sold by each Seller and the aggregate purchase price receivable by each
Seller are set forth on Schedule A.
2. Closing.
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(a) The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 10:00 a.m. at the offices of Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, 1285 Avenue of the Americas, New York, New York (or
at such other place as agreed to by the Buyer and Zurich) on the 45th day after
September 8, 1998 (or if such day is not a business day, the next business day
thereafter) or on such earlier date and time as mutually agreed by Buyer and
Zurich (the "Closing Date"). At the Closing, the Sellers will deliver to Buyer
the Shares (with stock powers duly endorsed in blank) against (i) the issuance
of $45,000,000 aggregate liquidation preference of Series A preferred membership
interests in the Buyer on the terms and conditions set forth in Exhibit A (the
"Preferred Membership Interests") to such Sellers in such amounts as directed by
Zurich and (ii) payment of $377,222,265.50 by transfer of immediately available
funds to such bank as Zurich may direct in writing. If the Closing shall occur,
the Sellers shall, or Zurich shall cause one or more wholly-owned subsidiaries
of Zurich to provide a standby commitment to purchase up to $45,000,000 of
Series B preferred membership interests in the aggregate on the terms and
conditions set forth in Exhibit A and such other terms reasonably
satisfactory to the Buyer and Zurich (the "Standby Commitment").
(b) The Buyer's obligations to consummate any purchase and sale of
Shares hereunder shall be conditioned upon (i) the Seller's performance of its
obligations hereunder, (ii) the representations and warranties of the Seller
being true and correct as of the date of Closing, (iii) receipt of the written
consent of Provident under that certain Amended and Restated Relationship
Agreement between Zurich and Provident (the "Relationship Agreement") to the
sale and purchase of the Shares under this Agreement and other transactions
contemplated hereby on terms and conditions satisfactory to the Buyer, (iv) the
Standby Commitment is in full force and effect, (v) the closing of a financing
with a financial institution to borrow up to 50% of the market value of the
Shares shall have occurred on terms and conditions satisfactory to Buyer, and
(vi) the absence of any temporary restraining order, preliminary or permanent
injunction or other order issued by a court of competent jurisdiction or other
legal restraint or prohibition, restraining or preventing the consummation of
the transactions contemplated hereby or subjecting the Buyer or Provident to a
substantial fine or penalty as a result of the consummation of the transactions
contemplated hereby.
(c) The Sellers' obligations to consummate any purchase and sale
of Shares hereunder shall be conditioned upon (i) the Buyer's performance of its
obligations hereunder, (ii) the representations and warranties of the Buyer
being true and correct as of the date of the Closing, (iii) the receipt of
written consent of Provident under the Relationship Agreement to the sale and
purchase of the Shares under this Agreement and the other transactions
contemplated hereby on terms and conditions satisfactory to Zurich, (iv) the
absence of any temporary restraining order, preliminary or permanent injunction
or other order issued by a court of competent jurisdiction or other legal
restraint or prohibition, restraining or preventing the consummation of the
transactions contemplated hereby or subjecting the Sellers to a substantial fine
or penalty as a result of the consummation of the transactions contemplated
hereby and (v) the receipt by the Sellers of any insurance regulatory approvals
required to be obtained to consummate such purchase and sale.
3. Representations and Warranties of the Sellers.
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Each Seller represents and warrants to the Buyer that:
(a) Title to Shares. Upon delivery of and payment for the Shares,
it will convey valid and marketable title thereto, free and clear of any
encumbrance (other than pursuant to any agreement entered into between Provident
and the Buyer).
(b) Corporate Existence and Power. It is a corporation duly
organized, validly existing and in good standing
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under the laws of its jurisdiction of organization.
(c) Power and Authority. It has the full corporate power and
authority to execute and deliver this Agreement and the Standby Agreement, and
to perform its obligations hereunder and thereunder. This Agreement has been,
and at Closing, the Standby Agreement will be, duly authorized, executed and
delivered by it and its valid and binding obligation, enforceable in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, enforceability, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
(d) No Contravention, Conflict, Breach, Etc. The execution,
delivery and performance of this Agreement and the Standby Agreement by it and
the consummation of the transactions contemplated hereby and thereby (i) will
not conflict with, contravene or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any material agreement
by which such Seller is bound, which conflict, contravention, breach, violation
or default would materially impair the ability of such Seller to consummate the
transactions contemplated hereby and thereby, (ii) will not result in the
creation of any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit, arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever on or in respect of the Shares and (iii) will not conflict with,
contravene or result in a breach or violation of any law, rule, regulation or
order of any government, regulatory, administrative or arbitral body which
conflict, contravention, breach, or violation would materially impair the
ability of such Seller to consummate the transactions contemplated hereby and
thereby.
(e) Consents. Other than consents to be obtained prior to the
Closing, no consent, approval, authorization, order, registration, filing or
qualification of or with (A) any government of any nation or state, or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
or (B) any other person is required to be made or obtained by such Seller or any
of its subsidiaries or affiliates for the execution, delivery and performance by
such Seller of this Agreement and the Standby Agreement and the consummation of
the transactions contemplated hereby and thereby, which if not obtained or made
would materially impair the ability of such Seller to consummate the
transactions contemplated hereby and thereby.
(f) Finders and Investment Bankers. The Sellers have not employed
any investment banker, business consultant, financial advisor, broker or finder
in connection with the
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transactions contemplated by this Agreement, or incurred any liability for any
investment banking, business consultancy, financial advisory, brokerage or
finders' fees or commissions in connection with the transactions contemplated
hereby.
(g) Preferred Membership Interests. Each Seller that is acquiring
Preferred Membership Interests (A)(i) is an "accredited investor" (as defined in
Rule 501(a) of Regulation D under the Securities Act of 1933, as amended) and
(ii) is a "qualified purchaser" as defined in Section 2(a)51 of the Investment
Company Act of 1940, as amended, and the rules promulgated thereunder and (B) is
acquiring the Preferred Membership Interests for its own account for investment
purposes only and not with a view to resell or distribute the same or any part
thereof.
(h) None of the funds used to acquire Series A or Series B
Preferred Membership Interests will be borrowed funds.
4. Representations and Warranties of the Buyer.
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The Buyer hereby represents and warrants to each of the Sellers that:
(a) Existence and Power. It is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) Power and Authority. It has full company power and authority
to execute and deliver this Agreement and the Standby Agreement, to issue the
Preferred Membership Interests and to perform its obligations hereunder and
thereunder. This Agreement has been, and, at Closing, the Standby Agreement will
be, duly authorized, executed and delivered by it and its valid and binding
obligation, enforceable in accordance with its terms except as may be limited by
applicable bankruptcy, insolvency, reorganization, enforceability, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity). On the Closing Date, the Preferred Membership
Interests to be issued hereunder shall be duly authorized and validly issued to
the applicable Sellers.
(c) No Contravention, Conflict, Breach, Etc. The execution,
delivery and performance of this Agreement and the Standby Agreement by it, the
issuance of the Preferred Membership Interests, and the consummation of the
transactions
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contemplated hereby and thereby (i) will not conflict with, contravene or result
in a breach or violation of any of the terms and provisions of, or constitute a
default under, any material agreement by which the Buyer is bound, which
conflict, contravention, breach, violation or default would materially impair
the ability of the Buyer to consummate the transactions contemplated hereby, nor
(ii) conflict with, contravene or result in a breach or violation of any law,
rule, regulation or order of any governmental, regulatory, administrative or
arbitral body (including Regulation U or X of the Board of Governors of the
Federal Reserve System), which conflict, contravention, breach, or violation
would materially impair the ability of Buyer to consummate the transactions
contemplated hereby.
(d) Consents. Other than consents to be obtained prior to the
Closing, no consent, approval, authorization, order, registration, filing or
qualification of or with (A) any government of any nation or state, or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
or (B) other person is required to be made or obtained by the Buyer for the
execution, delivery and performance by the Buyer of this Agreement and the
Standby Agreement, the issuance of the Preferred Membership Interests, and the
consummation of the transactions contemplated hereby and thereby, which if not
obtained or made would materially impair the ability of the Buyer to consummate
the transactions contemplated hereby.
(e) Subsidiary. Except for the Preferred Membership Interests to
be issued to the Sellers, the Buyer is a wholly-owned subsidiary of Insurance
Partners, II, L.P. ("IPII").
(f) Xxxx-Xxxxx-Xxxxxx. At the Closing, the "person," as defined in
ss. 801.1(a)(1) of the Rules (the "Rules") promulgated under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx"), within
which Buyer is included, does not have annual net sales or total assets of
$10,000,000 or more, as determined in accordance with the HSR Act and Rules.
5. Cooperation. From and after the date of this Agreement until the
Closing, the Buyer and the Sellers shall act with good faith towards, and shall
use their best efforts to consummate the transactions contemplated by this
Agreement, and neither the Buyer nor any of the Sellers will take any action
that would prohibit or impair its ability to consummate the transactions
contemplated by this Agreement.
6. Further Assurances. Each of the parties hereto, upon the request
of another party hereto, whether before or after the Closing, shall do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, documents, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably necessary or
desirable to fully complete consummation of the transactions contemplated by
this Agreement.
7. Termination. If, on the trading day immediately preceding the
scheduled Closing Date under Section 2, the closing price per share of the
Common Stock on the New York Stock
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Exchange (the "NYSE") is less than $35.00 as reported on the NYSE Composite
Tape, the Buyer, in its sole discretion, may terminate this Agreement and all
obligations of the parties hereunder (without liability to any party) by written
notice to Zurich. If the Closing does not occur by the 45th day after September
8, 1998 for any reason, either the Buyer or Zurich may terminate this Agreement
and all obligations of the parties hereunder (without liability to any party) by
written notice to the other party; provided that no such party may terminate
this Agreement if the failure to close the transactions contemplated hereunder
results from the actions or in actions of such party.
8. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York, without reference to its conflicts of laws principles.
9. Notices. All notices or other communications given or made
hereunder shall be validly given or made if in writing and delivered by
facsimile transmission or in person at, mailed by registered or certified mail,
return receipt requested, postage prepaid, or sent by a reputable overnight
courier to, the following addresses and shall be deemed effective at the time of
receipt thereof.
If to the Sellers:
c/o Zurich Insurance Company
Xxxxxxxxxx 0
X.X. Xxx Xx. 8022
Zurich, Switzerland
Attention: General Counsel
Fax No.: 000-000-000-0000
With copies to:
Zurich Centre Group, LLC
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
and
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Fax No.: (000) 000-0000
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If to the Buyer:
Nooga I, LLC
One Chase Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above.
10. Announcements. Subject to any requirements of law, the parties
hereto agree that no disclosure or public announcement with respect to this
Agreement or any of the transactions contemplated hereby shall be made by any
party hereto without the written consent of all other parties thereto.
11. Survival. All representations, warranties, covenants and agreements
contained herein shall survive the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
12. Waiver. The failure at any time to require performance of any
provision hereof shall in no way affect the full right to require such
performance at any time thereafter (unless performance thereof has been waived
in accordance with the terms hereof for all purposes and at all times by the
parties to whom the benefit of such performance is to be rendered). The waiver
by any party to this Agreement of a breach of any provision hereof shall not be
taken or held to be a waiver of any succeeding breach of such provision of any
other provision or as a waiver of the provision itself.
13. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, each of the Sellers and the Buyers directs that such court
interpret and apply the remainder of this Agreement in the manner that it
determines most closely effectuates their intent in entering into this
Agreement, and in doing so particularly take into account the relative
importance of the term, provision, covenant or restriction being held invalid,
void or unenforceable.
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14. Successors and Assigns. All covenants and agreements contained in
this Agreement by or on behalf of the parties hereto shall bind, and inure to
the benefit of, the respective successors and assigns of the parties hereto;
provided, however, that the rights and obligations of any party hereto may not
be assigned without the prior written consent of the other parties; provided,
further, that the Buyer may assign its rights hereunder to any wholly-owned
subsidiary of IPII without the consent of any of the other parties hereto.
15. Counterparts. This Agreement may be executed in one or
more counterparts, and by different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original and all of which
shall constitute one and the same instrument.
16. Amendment. This Agreement may be amended, modified or supplemen-
xxx only by a written agreement singed by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ZURICH INSURANCE COMPANY
By:_________________________________
Name:
Title:
CENTRE REINSURANCE LIMITED
By:_________________________________
Name:
Title:
ZURICH REINSURANCE (NORTH AMERICA), INC.
By:_________________________________
Name:
Title:
EMPIRE FIRE AND MARINE INSURANCE COMPANY
By:_________________________________
Name:
Title:
UNIVERSAL UNDERWRITERS INSURANCE COMPANY
By:_________________________________
Name:
Title:
UNIVERSAL UNDERWRITERS LIFE INSURANCE
COMPANY
By:_________________________________
Name:
Title:
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
By:_________________________________
Name:
Title:
NOOGA I, LLC
By:_________________________________
Name:
Title:
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SCHEDULE A
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Sellers
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________________________________________________________________________________
Number of Shares
Name to be Sold Purchase Price
---- ---------------- -----------------
________________________________________________________________________________
Zurich Insurance Company 1,904,760 $ 63,333,270.00
Centre Reinsurance Limited 9,047,624 300,833,498.00
Zurich Reinsurance (North
America), Inc. 476,190 15,833,317.50
Empire Fire and Marine
Insurance Compan 253,968 8,444,436.00
Universal Underwriters
Insurance Company 507,936 16,888,872.00
Universal Underwriters Life
Insurance Company 126,984 4,222,218.00
Fidelity and Deposit Company
of Maryland 380,952 12,666,654.00
__________ ________________
_______________________________________________________________________________
TOTAL 12,698,414 $422,222,265.50
________________________________________________________________________________
EXHIBIT A
Nooga I, LLC Preferred Membership Interests
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Issuer: Nooga I, LLC, a newly-formed limited liability
company (the "Issuer"). Insurance Partners II,
L.P. ("IP II") will be the sole managing member
of the Issuer.
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Investment: At the closing, $45 million in Series A
preferred membership interests (the "Series A
Preferred Interests") by Zurich Insurance
Company or one or more of its wholly-owned
subsidiaries reasonably acceptable to the Issuer
("Zurich"). Zurich agrees to enter into a
standby commitment agreement whereby it will
agree to purchase up to $45 million of Series B
revolving preferred membership interests (the
"Series B Preferred Interests") in the Issuer,
in the event the coverage ratio under the Chase
Credit Facility (as defined below) falls below
1.6:1 and additional capital contributions are
required to be made under the Chase Credit
Facility. After the return of contributed
capital of the Series B Preferred Interests,
such contributed capital may be recalled at any
time while the Chase Credit Facility is in
effect (it being understood that the commitment
will not extend beyond the final maturity of
such facility (which will not be more than five
(5) years)).
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Proceeds: At the closing, the net proceeds for the
investment will be used to partially fund the
purchase of 12,698,412 shares of Common Stock
(the "Shares") of Provident Companies, Inc.
("Provident"). The net proceeds from the standby
commitment will be used for one or more of the
following: (i) to purchase cash equivalents;
(ii) to pay down amounts outstanding under Chase
Credit Facility, and/or (iii) to purchase shares
of Common Stock of Provident.
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Business: The Issuer will not conduct any business other
than holding the Shares and transactions related
thereto.
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Capital Structure: At the closing (assuming a purchase price and
market value of approximately $422.2 million for
the Shares), the capital structure of the Issuer
will consist of (i) up to $220 million of
indebtedness (50% of the market value of the
Shares) under a credit facility with Chase (the
"Chase Credit Facility"); (ii) $45 million of
Series A Preferred Interests issued to Zurich;
(iii) common membership interests issued to IP
II equal to the remaining amount needed to fund
the purchase price of the Shares.
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Preferred Return: A per annum return equal to the interest rate
(or an assumed interest rate) on the Chase
Credit Facility plus 0.75% (or 1.5% in the case
of the
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Series B Preferred Interests) (the "Preferred
Return") compounded semi-annually. The Issuer
may elect to pay current cash distributions on
the Preferred Return or to accrue the Preferred
Return.
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Liquidation/ Series A Preferred Interests: The unreturned
Distribution contributed capital (initially, $45 million)
Preference: plus any accrued and unpaid Preferred Return.
Series B Preferred Interest: The unreturned
contributed capital plus any accrued and unpaid
Preferred Return.
Subject to the terms of the Chase Credit
Facility, the Issuer will distribute all net
cash proceeds on a quarterly basis (subject to a
reasonable reserve for future expenses).
Distributions will be made in the following
priority: First, to the holders of the Series A
Preferred Interests and the Series B Preferred
Interests in an amount equal to the Preferred
Return (including any arrearages). Second, to
the holders of the Series B Preferred Interests
in an amount equal to their unrecovered
contributed capital. Third, to the holders of
the Series A Preferred Interests in an amount
equal to their unrecovered contributed capital.
Fourth, to the holders of the common membership
interests. Notwithstanding the foregoing, while
the Chase Credit Facility is in effect and
subject to its terms, distributions will be made
first to the holders of the Series B Preferred
Interests in an amount equal to the Preferred
Return of the Series B Preferred Interests
(including any arrearages), then to the holders
of the Series B Preferred Interests in an amount
equal to the unrecovered contributed capital of
the Series B Preferred Interests and then in the
order of priority otherwise described above. At
Zurich's option, the Preferred Return on the
Series B Preferred Interests will be structured
either as a guaranteed payment or a distributive
share of gross income for tax purposes. Zurich
and the Issuer will negotiate in good faith
concerning the structure of the Preferred Return
on the Series A Preferred Interests, although
the parties anticipate that such Preferred
Return will be structured as a distributive
share of gross income. It is understood that
neither party will be under any obligation to
close the sale of the Shares if a mutually
acceptable structure is not agreed to (it being
understood that structuring such Preferred
Return as a distributive share of gross income
is acceptable to the Issuer).
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Term: The term of the Issuer will be ten (10) years,
subject to extension as agreed to by the members
of the Issuer.
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Representation: Zurich will represent that none of the funds
used to purchase the preferred membership
interests will be borrowed funds.
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Transfer Restrictions: Neither Zurich nor IP II may sell, assign or
transfer any interest in the Issuer (either
directly or indirectly through merger, sale or
other business combination) without the prior
written consent of the other party.
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