MASTER AGREEMENT BY AND BETWEEN WOODWARD, INC. AND GENERAL ELECTRIC COMPANY MAY 20, 2015

 

 

 

 

MASTER AGREEMENT

BY AND BETWEEN

▇▇▇▇▇▇▇▇, INC.

AND

GENERAL ELECTRIC COMPANY

MAY 20, 2015

 

 

 

 

 

 

 

---

 

TABLE OF CONTENTS

Page

 

 

i

---

 

 

 

EXHIBITS

 

 

 

 

---

 

MASTER AGREEMENT

THIS MASTER AGREEMENT, dated as of May 20, 2015 (this “Agreement”), is entered into by and between ▇▇▇▇▇▇▇▇, Inc., a Delaware corporation (“▇▇▇▇▇▇▇▇”), and General Electric Company, a New York corporation (“GE”) (with GE acting by and through its GE Aviation business unit).  ▇▇▇▇▇▇▇▇ and GE are sometimes referred to herein as the “Parties” and each individually as a “Party”.

WHEREAS, GE and ▇▇▇▇▇▇▇▇ have a long history providing fuel system programs and together have achieved industry-leading reliability and performance in controls and externals;

WHEREAS, GE and ▇▇▇▇▇▇▇▇ have decided to enter into a joint venture (the “JV”) to strengthen their relationship and better enhance innovation, performance and reliability in fuel systems for commercial aerospace applications within the Company Scope (as defined in the Operating Agreement);

WHEREAS, the JV’s goals would be to, among other things:  (a) provide GE with the world’s best and most competitive fuel systems available, today and in the future, for GE’s commercial aircraft engines within the Company Scope, (b) enable rapid control system optimization through joint system expertise at a reduced cost by leveraging the resources of both GE and Woodward and (c) provide financial benefits to both GE and ▇▇▇▇▇▇▇▇ by expanding the content per fuel system application and sharing in the OEM and aftermarket revenue streams associated with the fuel system line replaceable units for GE’s commercial aircraft engines within the Company Scope;

WHEREAS, no later than the first Business Day after the date on which Woodward makes its Specified Filing, ▇▇▇▇▇▇▇▇ will cause to be executed and delivered, and filed with the Secretary of State of the State of Delaware, a certificate of formation of the JV, which will be a Delaware limited liability company (the date of the certificate of formation is filed, the “Formation Date”);

WHEREAS, pursuant to the terms of that certain Contribution Agreement, by and between ▇▇▇▇▇▇▇▇ and the JV, substantially in the form attached hereto as Exhibit A (the “▇▇▇▇▇▇▇▇ Contribution Agreement”), on the Formation Date, (i) ▇▇▇▇▇▇▇▇ will contribute the Contributed Assets (as defined in the ▇▇▇▇▇▇▇▇ Contribution Agreement) to the JV, (ii) the JV will accept the Contributed Assets and assume certain liabilities associated with the Contributed Assets, and (iii) as consideration for the Contributed Assets, the JV will issue ▇▇▇▇▇▇▇▇ 100% of its Membership Interests, all upon the terms and conditions set forth therein;

WHEREAS, on the Formation Date and following the issuance by the JV to ▇▇▇▇▇▇▇▇ of 100% of its Membership Interests, (i) ▇▇▇▇▇▇▇▇ will contribute 10% of the Membership Interests to a Delaware limited liability company that is wholly owned by ▇▇▇▇▇▇▇▇ (the “▇▇▇▇▇▇▇▇ Affiliate” and, together with ▇▇▇▇▇▇▇▇, the “▇▇▇▇▇▇▇▇ Members”), (ii) as consideration for the contributed 10% of the Membership Interests, ▇▇▇▇▇▇▇▇ Affiliate will issue ▇▇▇▇▇▇▇▇ 100% of the equity interests in ▇▇▇▇▇▇▇▇ Affiliate and (iii) ▇▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇▇ Affiliate will enter into the limited liability company agreement of the JV, in the form attached hereto as Exhibit B (the “Initial LLC Agreement”);

---

 

WHEREAS, at all times following the contribution described in the preceding recital, it is intended that the JV will be treated as a partnership for U.S. federal income tax purposes in accordance with Treasury Regulations Sections 301.7701-3(b)(i) and (ii);

WHEREAS, pursuant to the terms of that certain Contribution Agreement, by and between GE and the JV, substantially in the form attached hereto as Exhibit C (the “GE Contribution Agreement”), on the Closing Date, (i) GE will contribute the Contributed Assets (as defined in the GE Contribution Agreement) to the JV and (ii) the JV will accept the Contributed Assets and assume certain liabilities associated therewith, all upon the terms and conditions set forth therein;

WHEREAS, pursuant to the terms of that certain Purchase and Sale Agreement, by and between GE and ▇▇▇▇▇▇▇▇, substantially in the form attached hereto as Exhibit D (the “Purchase and Sale Agreement”), on the Closing Date, GE shall purchase and acquire from ▇▇▇▇▇▇▇▇ the Membership Interest set forth in the Purchase and Sale Agreement (the “Purchased Membership Interest”), and ▇▇▇▇▇▇▇▇ shall sell and transfer to GE the Purchased Membership Interest;

WHEREAS, on the Closing Date, ▇▇▇▇▇▇▇▇ and GE shall amend and restate the Initial LLC Agreement, substantially in the form attached hereto as Exhibit E (the “Operating Agreement”); and

WHEREAS, on the Closing Date, the JV and the Parties, as applicable, will enter into each of the Closing Date Ancillary Documents.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows.

 

ARTICLE  I

DEFINITIONS

1.1Definitions.  Capitalized terms used in this Agreement shall have the respective meanings ascribed to such terms in Appendix A to this Agreement.

1.2Interpretation.  The definitions set forth in Appendix A or otherwise referred to in this Agreement shall apply equally to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole.  All references herein to Articles, Sections, Exhibits and Schedules shall be deemed to be references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require.  Unless the context shall otherwise require, any reference to any contract, instrument, statute, rule or regulation is a reference to it as amended and supplemented from time to time (and, in the case of a statute, rule or regulation, to any successor provision).  Any reference in this Agreement to a

---

 

“day” or a number of “days” (without the explicit qualification of “Business”) shall be interpreted as a reference to a calendar day or number of calendar days.

 

ARTICLE II

SCOPE

2.1Scope.  The scope of the JV shall be as set forth in Section 3.01 of the Operating Agreement.

 

ARTICLE III

AGREEMENTS

3.1Sale and Purchase of Membership Interest.  Upon the terms and subject to the conditions set forth herein, at the Closing, ▇▇▇▇▇▇▇▇ hereby agrees to sell to GE, free and clear of all Encumbrances, and GE hereby agrees to purchase from ▇▇▇▇▇▇▇▇, the Purchased Membership Interests (the “GE Purchase”) pursuant to, and subject to the terms and conditions of, the Purchase and Sale Agreement. 

3.2Operating Agreement.  Simultaneously with the foregoing GE Purchase, the Parties shall, together with ▇▇▇▇▇▇▇▇ Affiliate, enter into the Operating Agreement (with such changes as to which GE and ▇▇▇▇▇▇▇▇ may agree after the Signing Date) to give effect to such GE Purchase and to amend and restate the Initial LLC Agreement.

3.3Closing.  The consummation of the GE Purchase as contemplated under this Agreement and the Purchase and Sale Agreement (the “Closing”) shall take place at the offices of Sidley Austin LLP, Chicago, Illinois at 10:00 a.m. (Central time) on a date to be specified by GE and ▇▇▇▇▇▇▇▇, which date shall be the first Business Day of the month following the Business Day on which satisfaction or (to the extent permitted by Law) waiver of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time) first occurs, but no earlier than October 1, 2015 or at such other place (including remotely by electronic transmission), date and/or time as may be agreed to in writing by GE and ▇▇▇▇▇▇▇▇; provided,  that, notwithstanding anything herein to the contrary, if (but for this proviso) the Closing Date would have occurred prior to January 4, 2016, GE may, in its sole discretion, elect that the Closing will occur on January 4, 2016 by providing written notice of such election (the “Closing Date Extension Option”) to ▇▇▇▇▇▇▇▇ prior to the earlier of (a) the date that is five (5) Business Days after the satisfaction of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing) and (b) 10:00 a.m. (Central time) on the date on which the Closing would have otherwise occurred (but for this proviso).  In the event that GE exercises the Closing Date Extension Option, the ▇▇▇▇▇▇▇▇ Aggregate Cash (as such term is defined in the Purchase and Sale Agreement) shall be increased above $250,000,000, if applicable, pursuant to Section 1.2 of the Purchase and Sale Agreement to reflect the date on which the Closing would have occurred but for the exercise by GE of the Closing Date Extension Option (if the Closing would have occurred prior to October 1, 2015), but shall not be decreased below $250,000,000 pursuant to Section 1.2 of the Purchase and Sale Agreement (if the Closing

---

 

would have occurred after October 1, 2015).  The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date”.

3.4Deliveries on the Closing Date. 

(a)At the Closing, ▇▇▇▇▇▇▇▇ shall deliver or cause to be delivered, as applicable, to GE, each of the ▇▇▇▇▇▇▇▇ Ancillary Documents, duly executed by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Affiliate and/or the JV, as applicable.

(b)At the Closing, GE shall deliver to ▇▇▇▇▇▇▇▇ each of the GE Ancillary Documents, duly executed by GE.

 

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

4.1▇▇▇▇▇▇▇▇ Representations.  ▇▇▇▇▇▇▇▇ hereby represents and warrants to GE as follows:

(a)Existence and Good Standing.  ▇▇▇▇▇▇▇▇ is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  ▇▇▇▇▇▇▇▇ Affiliate will upon formation be a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware.  ▇▇▇▇▇▇▇▇ has, and ▇▇▇▇▇▇▇▇ Affiliate will upon its formation have, all requisite corporate or limited liability company power and authority, as the case may be, to execute and deliver the Transaction Documents to which it is, or is specified to be, a party and to consummate the transactions contemplated hereby (as applicable) and thereby.  All corporate acts and other proceedings required to be taken by each of the ▇▇▇▇▇▇▇▇ Members to authorize the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is, or is specified to be, a party and to consummate the transactions contemplated hereby (as applicable) and thereby have been or will be duly and properly taken.

(b)Execution and Delivery; Enforceability.  This Agreement has been duly executed and delivered by ▇▇▇▇▇▇▇▇ and, at or prior to Closing, each of the ▇▇▇▇▇▇▇▇ Members will have duly executed and delivered each ▇▇▇▇▇▇▇▇ Ancillary Document to which it is, or is specified to be, a party.  Assuming that this Agreement has been duly authorized, executed and delivered by GE, this Agreement constitutes, and, upon the due authorization, execution and delivery by GE of each ▇▇▇▇▇▇▇▇ Ancillary Document to which it is, or is specified to be, a party, such ▇▇▇▇▇▇▇▇ Ancillary Document will constitute, a legal, valid and binding obligation of each of the applicable ▇▇▇▇▇▇▇▇ Members, enforceable against such ▇▇▇▇▇▇▇▇ Member in accordance with its terms (subject, as to enforcement, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally, general principles of equity and the discretion of courts in granting equitable remedies (the “Bankruptcy and Equity Exception”)).

(c)Consents.  Except for compliance with the applicable requirements of the HSR Act or other applicable Antitrust Laws, no Consent of, or Filing with, any Governmental

---

 

Authority or other Person is required to be obtained or made by or with respect to any of the ▇▇▇▇▇▇▇▇ Members in connection with the execution and delivery of this Agreement or the ▇▇▇▇▇▇▇▇ Ancillary Documents, the consummation of the transactions contemplated hereby or thereby or the compliance by the ▇▇▇▇▇▇▇▇ Members, as applicable, with the terms and conditions hereof and thereof, except with respect to Consents or Filings with Persons other than Governmental Authorities the failure of which to obtain or make would not reasonably be expected to prevent or materially impede or delay the consummation of the transactions contemplated hereby.

(d)No-Conflicts.  The execution and delivery of this Agreement by ▇▇▇▇▇▇▇▇ does not, the execution and delivery by each of the ▇▇▇▇▇▇▇▇ Members of each ▇▇▇▇▇▇▇▇ Ancillary Document to which it is, or is specified to be, a party will not, and the consummation of the transactions contemplated hereby and thereby and compliance by the ▇▇▇▇▇▇▇▇ Members with the terms and conditions hereof and thereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a benefit under, or give rise to any obligation of any Person to make any payment under, or to the increased, additional, accelerated or guaranteed rights or entitlements of any Person under, or result in the creation of any Encumbrance upon any of the assets of either ▇▇▇▇▇▇▇▇ Member or the JV under, any provision of (i) the certificate of incorporation, certificate of formation, limited liability company agreement, operating agreement or by-laws (or the comparable governing instruments) of either of the ▇▇▇▇▇▇▇▇ Members, (ii) any Contract to which either ▇▇▇▇▇▇▇▇ Member or the JV is a party or by which any of its respective properties or assets are bound or (iii) any Law applicable to the operations or the assets of either ▇▇▇▇▇▇▇▇ Member or the JV, other than in the case of clause (ii), any such violation, default, termination, cancellation, acceleration, loss or Encumbrance that would not reasonably be expected to prevent or materially impede or delay the consummation of the transactions contemplated hereby.

(e)Litigation.  As of the Signing Date, there is no Proceeding pending or, to the Knowledge of ▇▇▇▇▇▇▇▇, threatened, and, to the Knowledge of ▇▇▇▇▇▇▇▇, there is no investigation pending or threatened, in each case, by or against ▇▇▇▇▇▇▇▇ or any of ▇▇▇▇▇▇▇▇’▇ Subsidiaries seeking to prevent, enjoin, alter or delay the transactions contemplated by this Agreement or any of the other Transaction Documents.

(f)Brokerage.  Except fees that are the responsibility of ▇▇▇▇▇▇▇▇, if any, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon any arrangements made by or on behalf of ▇▇▇▇▇▇▇▇ or any of its Affiliates or, prior to the Closing, the JV.   

4.2GE Representations.  GE represents and warrants to ▇▇▇▇▇▇▇▇ as follows:

(a)Existence and Good Standing.  GE is a corporation duly organized, validly existing and in good standing under the laws of the State of New York.  GE has all requisite corporate power and authority to execute and deliver the Transaction Documents to which it is, or is specified to be, a party and to consummate the transactions contemplated hereby and

---

 

thereby.  All corporate acts and other proceedings required to be taken by GE to authorize the execution, delivery and performance of this Agreement and the other Transaction Documents to which GE is, or is specified to be, a party and to consummate the transactions contemplated hereby and thereby have been or will be duly and properly taken.

(b)Execution and Delivery; Enforceability.  This Agreement has been duly executed and delivered by GE and, at or prior to Closing, GE will have duly executed and delivered each GE Ancillary Document to which it is, or is specified to be, a party.  Assuming that this Agreement has been duly authorized, executed and delivered by ▇▇▇▇▇▇▇▇, this Agreement constitutes, and, upon the due authorization, execution and delivery of the GE Ancillary Documents by each of the ▇▇▇▇▇▇▇▇ Members of each GE Ancillary Document to which GE is, or is specified to be, a party, such GE Ancillary Document will constitute, a legal, valid and binding obligation of GE, enforceable against GE in accordance with its terms, subject to the Bankruptcy and Equity Exception.

(c)Consents.  Except for compliance with the applicable requirements of the HSR Act or other applicable Antitrust Laws, no Consent of, or Filing with, any Governmental Authority or other Person is required to be obtained or made by or with respect to GE in connection with the execution and delivery of this Agreement or the GE Ancillary Documents, the consummation of the transactions contemplated hereby or thereby or the compliance by GE with the terms and conditions hereof and thereof, except with respect to Consents or Filings with Persons other than Governmental Authorities the failure of which to obtain or make would not reasonably be expected to prevent or materially impede or delay the consummation of the transactions contemplated hereby.

(d)No Conflicts.  The execution and delivery of this Agreement by GE does not, the execution and delivery by GE of each GE Ancillary Document to which it is, or is specified to be, a party will not, and the consummation of the transactions contemplated hereby and thereby and compliance by GE with the terms and conditions hereof and thereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a benefit under, or give rise to any obligation of any Person to make any payment under, or to the increased, additional, accelerated or guaranteed rights or entitlements of any Person under, or result in the creation of any Encumbrance upon any of the assets of GE under, any provision of (i) the certificate of incorporation or by-laws of GE, (ii) any Contract to which GE is a party or by which any of its respective properties or assets are bound or (iii) any Law applicable to the operations or the assets of GE, other than in the case of clause (ii), any such violation, default, termination, cancellation, acceleration, loss or Encumbrance that would not reasonably be expected to prevent or materially impede or delay the consummation of the transactions contemplated hereby.

(e)Litigation.  As of the Signing Date, there is no Proceeding pending or, to the Knowledge of GE, threatened, and, to the Knowledge of GE, there is no investigation pending or threatened, in each case, by or against GE or any of GE’s Subsidiaries seeking to prevent, enjoin, alter or delay the transactions contemplated by this Agreement or any of the other Transaction Documents.

---

 

(f)Brokerage.  Except fees that are the responsibility of GE, if any, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon any arrangements made by or on behalf of GE or any of its Affiliates.

 

ARTICLE  V

COVENANTS

5.1Further Actions; Antitrust Laws.  

(a)Each of the Parties shall use their reasonable best efforts to take, or cause to be taken, as promptly as reasonably practicable, all actions and to do or cause to be done, as promptly as reasonably practicable, all things reasonably necessary, proper or advisable in order to cause the conditions to Closing of the other Party to be satisfied, subject to Section 5.1(b), as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including (i) obtaining, at the earliest reasonably practicable date all Consents and Permits from, and making all Filings with, all Governmental Authorities which are required to consummate the transactions contemplated by this Agreement; and (ii) obtaining the execution of documents, instruments or conveyances of any kind that may be reasonably necessary or advisable to carry out any of the transactions contemplated by this Agreement.  Each of the Parties agrees not to take any action with the intent of, and which has the effect of, adversely affecting the ability of itself or the other Party to consummate the transactions contemplated by this Agreement.

(b)Without limiting the foregoing, the Parties shall (i) make all filings required of each of them or any of their respective Affiliates under Antitrust Laws with respect to the transactions contemplated by this Agreement as promptly as practicable; provided, that, notwithstanding anything in this Agreement to the contrary, the Parties shall make all filings required of each of them or any of their respective Affiliates under the HSR Act (the “Specified Filing”) with respect to the transactions contemplated by this Agreement as promptly as practicable, and in any event within four (4) Business Days, after the date on which ▇▇▇▇▇▇▇▇ informs GE in writing that it is prepared to make the Specified Filing (it being understood and agreed that the Parties will make the Specified Filings by no later than August 14, 2015), (ii) comply at the earliest practicable date with any request under the HSR Act or other Antitrust Laws for additional information, documents, or other materials received by each of them or any of their respective Subsidiaries or Affiliates, including responding to any second request, from the U.S. Federal Trade Commission (the “FTC”), the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) or any other Governmental Authority in respect of such filings or such transactions contemplated by this Agreement, and (iii) cooperate with each other in connection with any such filing (including, to the extent permitted by applicable Law, providing copies of all such documents to the non-filing Parties prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any of the FTC, the Antitrust Division or other Governmental Authority under any Antitrust Laws with respect to any such filing or any such transactions contemplated by this Agreement.  Notwithstanding anything herein to the contrary, the Parties agree that they shall not seek early termination of any applicable waiting

---

 

periods under the HSR Act.  Each such Party shall use reasonable best efforts to furnish to the other Party all information required for any application or other filing to be made pursuant to any applicable Law in connection with the transactions contemplated by this Agreement.  Subject to applicable Law, each such Party shall promptly inform the other Party of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transactions contemplated by this Agreement and permit the other Party to review in advance any proposed communication by such Party to any Governmental Authority.  Neither Party shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other Party prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate.  Subject to applicable Law, the Parties shall consult and cooperate with one another in connection with the matters described in this Section 5.1, including in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party hereto relating to Proceedings under the HSR Act or other Antitrust Laws.

(c)Each of the Parties shall use reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement under any Law, including the HSR Act and any other Antitrust Laws.  Each of the Parties shall use reasonable best efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as reasonably practicable after the execution of this Agreement, subject to Section 5.1(b).  Notwithstanding anything to the contrary in this Agreement, none of GE, ▇▇▇▇▇▇▇▇ or any of their respective Affiliates (which for purposes of this sentence shall include the JV) shall be required, in connection with the matters covered by this Section 5.1, (i) to pay any amounts (other than the payment of filing fees and expenses and fees of counsel), (ii) to commence or defend any litigation, (iii) to hold separate (including by trust or otherwise) or divest any of their respective businesses, product lines or assets, (iv) to agree to any limitation on the operation or conduct of their or the JV’s or any of the Subsidiaries’ respective businesses or (v) to waive any of the conditions set forth in Article VI.

5.2Press Releases; Public Announcements. 

(a)Except as provided in Section 5.2(b), no press release or other public statement or announcement with respect to this Agreement or the Transaction Documents or the terms hereof or thereof or the transactions contemplated by this Agreement shall be issued by either Party, any of its Affiliates, or any officers, directors, managers, employees, agents or representatives of it or its Affiliates (the “Representatives”) and (except as may be required by applicable Laws or applicable stock exchange regulation) none of them shall disclose this Agreement or any of the other Transaction Documents or the terms hereof or thereof or the transactions contemplated hereby or thereby to any Person (other than their Representatives; provided that the disclosing Person shall be responsible for compliance by such Representatives with the terms of this provision), in each case without the prior written consent of the other Party, and the Parties shall cooperate as to the timing and contents of any such press release, public announcement or disclosure.  The foregoing shall not prohibit any press release or other public statement or announcement (or any other disclosure) of information that was (or was in

---

 

substance) previously disclosed in a previously agreed upon public statement or announcement or is otherwise in the public domain other than as a result of a breach of this provision by a disclosing Party or any of its Representatives and shall not preclude any Party or its Representatives from disclosing this Agreement or any of the other Transaction Documents or the terms hereof or thereof or the transactions contemplated hereby or thereby to appropriate Governmental Authorities to the extent required by applicable Laws or applicable stock exchange regulation; provided that, except as provided in Section 5.2(b), the Parties shall cooperate as to the timing and contents of any such disclosure and the disclosing Party shall exercise its reasonable efforts to preserve the confidentiality of the information included in such disclosure as reasonably requested by the other Party, including seeking confidential treatment of such information. 

(b)The Parties hereby acknowledge and agree that ▇▇▇▇▇▇▇▇ may disclose the entry into, and a summary description of, this Agreement and one or more of the other Transaction Documents on a Current Report on Form 8-K to be filed with the U.S. Securities and Exchange Commission (the “SEC”) after the date this Agreement or such other Transaction Documents, as the case may be, are executed and delivered by the Parties, and to file this Agreement or such other Transaction Documents, as the case may be, with the SEC as an exhibit to the Form 8-K or a subsequently filed periodic report, subject to ▇▇▇▇▇▇▇▇’▇ agreement to cooperate as to the timing and contents of such disclosure set forth in Section 5.2(a).  In addition, the Parties hereby acknowledge and agree that ▇▇▇▇▇▇▇▇ and GE may from time to time disclose in their respective filings with the SEC information regarding the financial condition and results of operations of the JV, including information regarding the profits and losses of the JV attributable to, distributions received by, and tax impact on, the Parties, as the case may be, arising out of their respective interests in the JV, as well as the impact of the JV’s business on their respective businesses, financial condition and results of operations, in which case no prior notice to, or consent of, GE (in the case of disclosure by ▇▇▇▇▇▇▇▇) or ▇▇▇▇▇▇▇▇ (in the case of disclosure by GE) will be required, provided that any disclosure of material terms of this Agreement or any other Transaction Document that was not (or was not in substance) previously disclosed shall be subject to the Party’s agreement to cooperate as to the timing and contents of such disclosure set forth in Section 5.2(a).

5.3Certain Deliveries and Notices.  From the Signing Date through the earlier to occur of the Closing Date and the date this Agreement is terminated in accordance with its terms (such period, the “Interim Period”), each Party shall promptly inform in writing the other Party of any event or matter of which such Party has Knowledge that would reasonably be expected to cause a condition to the other Party’s obligation to consummate the Closing contained in Article VI to not be satisfied.

5.4Notices of Certain ▇▇▇▇▇▇▇▇ Events.  During the Interim Period, and subject to applicable Law, ▇▇▇▇▇▇▇▇ shall promptly notify GE of:

---

 

(a)any notice or other communication from any Person alleging the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;

(b)any notice or other communication from any Governmental Authority regarding any material Governmental Approval required to be obtained in connection with the transactions contemplated by this Agreement;

(c)any Claims, investigations or Proceedings commenced or, to ▇▇▇▇▇▇▇▇’▇ Knowledge, threatened against, relating to or involving or otherwise affecting ▇▇▇▇▇▇▇▇ that challenge or in any manner seek to prevent, enjoin, alter or delay the consummation of the transactions contemplated hereby; and

(d)any damage, destruction or other casualty loss that is material to the Contributed Assets (as defined in the ▇▇▇▇▇▇▇▇ Contribution Agreement) or other assets or properties of ▇▇▇▇▇▇▇▇ used in connection with the Transaction Documents, taken as a whole; 

provided, however, that the delivery of any notice pursuant to this Section 5.4 shall not limit or otherwise affect the remedies available to GE under this Agreement or to the JV under the ▇▇▇▇▇▇▇▇ Contribution Agreement.

5.5Notices of Certain GE Events.  During the Interim Period, and subject to applicable Law, GE shall promptly notify ▇▇▇▇▇▇▇▇ of:

(a)any notice or other communication from any Person alleging the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;

(b)any notice or other communication from any Governmental Authority regarding any material Governmental Approval required to be obtained in connection with the transactions contemplated by this Agreement;

(c)any Claims, investigations or Proceedings commenced or, to GE’s Knowledge, threatened against, relating to or involving or otherwise affecting GE that challenge or in any manner seek to prevent, enjoin, alter or delay the consummation of the transactions contemplated hereby; and

(d)any damage, destruction or other casualty loss that is material to the GE Transferred Assets or other assets or properties of GE used in connection with the Transaction Documents, taken as a whole;

provided, however, that the delivery of any notice pursuant to this Section 5.5 shall not limit or otherwise affect the remedies available to ▇▇▇▇▇▇▇▇ under this Agreement or to the JV under the GE Contribution Agreement.

5.6JV Formation and Preparation. 

---

 

(a)On the Formation Date, ▇▇▇▇▇▇▇▇ agrees to take such steps as are reasonably necessary and appropriate to form the JV and the ▇▇▇▇▇▇▇▇ Affiliate as Delaware limited liability companies, including filing certificates of formation, in forms reasonably acceptable to GE, for each such company with the Secretary of State of the State of Delaware.

(b)On the Formation Date, ▇▇▇▇▇▇▇▇ will cause the following to occur, all of which will be deemed to occur simultaneously:

(i)pursuant to the terms and conditions of the ▇▇▇▇▇▇▇▇ Contribution Agreement, (A) ▇▇▇▇▇▇▇▇ will contribute the Contributed Assets (as defined in the ▇▇▇▇▇▇▇▇ Contribution Agreement) to the JV (which contribution is hereby consented to by GE, by and on behalf of GE and its Affiliates, if and to the extent any such consent would be required to effect the contribution), (B) the JV will accept the Contributed Assets and assume certain liabilities associated therewith, and (C) as consideration for the Contributed Assets, the JV will issue ▇▇▇▇▇▇▇▇ 100% of its Membership Interests; and

(ii)immediately following the issuance by the JV to ▇▇▇▇▇▇▇▇ of 100% of its Membership Interests as contemplated by Section 5.6(b)(ii), (A) ▇▇▇▇▇▇▇▇ will contribute 10% of the Membership Interests to the ▇▇▇▇▇▇▇▇ Affiliate, (B) as consideration for the contribution of 10% of the Membership Interests, ▇▇▇▇▇▇▇▇ Affiliate will issue ▇▇▇▇▇▇▇▇ 100% of the equity interests in ▇▇▇▇▇▇▇▇ Affiliate and (C) ▇▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇▇ Affiliate will enter into the Initial LLC Agreement.

(c)At all times from and after the Formation Date and until the Closing, ▇▇▇▇▇▇▇▇ and an Affiliate of ▇▇▇▇▇▇▇▇ (or such other Person(s) as may be mutually agreed in writing by the Parties) shall be the sole members of, and ▇▇▇▇▇▇▇▇ shall be the sole manager (the “Initial Manager”) of, the JV.  At all times from and after the Formation Date and until the Closing, (i) the Initial Manager and the members of the JV shall use their reasonable best efforts to cause the JV to perform and fulfill (or to perform and fulfill (or cause to be performed or fulfilled) on the JV’s behalf) its obligations under the Contributed Assets (as defined in the ▇▇▇▇▇▇▇▇ Contribution Agreement) in the ordinary course of business, and (ii) except as explicitly set forth in the preceding clause (i) and as reasonably necessary to effectuate the Closing and the consummation of the transactions contemplated hereby and by the other Transaction Documents (including the matters set in Section 5.6(d)), (A) neither the Initial Manager nor any member of the JV shall, solely in its capacity as the manager or member of the JV, take any action or execute any agreement or document on behalf of the JV unless GE shall consent thereto in writing (which consent shall not be unreasonably withheld, conditioned or delayed), and (B) unless GE shall consent thereto in writing (which consent shall not be unreasonably withheld, conditioned or delayed), the Initial Manager shall, in its capacity as the manager of the JV, not take any action or execute any agreement or document solely in its capacity as manager of the JV that would result in the JV conducting operations or engaging in the conduct of any activities prior to the Closing (other than the operations and activities contemplated by this Agreement and the Contributed Assets (as defined in the ▇▇▇▇▇▇▇▇ Contribution Agreement) or operations reasonably necessary to effectuate the Closing and the

---

 

consummation of the transactions contemplated hereby and by the other Transaction Documents (including the matters set in Section 5.6(d)).

(d)From and after the Formation Date and until the Closing, the Initial Manager shall (i) cause the JV to take (A) all actions required by this Agreement to be taken by the JV prior to the Closing and (B) such other actions as are reasonably necessary to consummate the transactions contemplated by this Agreement and the other Transaction Documents; (ii) adopt any resolution required or necessary to be adopted by the JV to effect the Closing, to the extent required by Law; (iii) cause the JV to form such Subsidiaries as may be mutually agreed by the Parties; (iv) cause the JV to open such bank accounts as may be mutually agreed by the Parties; (v) cause the JV to execute each Transaction Document to which the JV is to become a party as well as any other instruments, certificates, authorizations and other documents or papers required to be executed and delivered by the JV on or before the Closing; (vi) cause the JV to execute any waivers or consents, including in connection with the waiver of closing conditions as set forth in the Transaction Documents, (A) with respect to any obligation or duty of GE, if ▇▇▇▇▇▇▇▇ consents in writing to the JV granting such waiver or consent and (B) with respect to any obligation or duty of ▇▇▇▇▇▇▇▇, if GE consents in writing to the JV granting such waiver or consent; provided, further, that the JV shall refrain from executing or otherwise granting any waiver or consent without the prior written consent of the applicable Party as set forth in the preceding clause, which consent shall not be unreasonably withheld, conditioned or delayed; and (vii) cause such filings to be made with the Secretary of State of the State of Delaware and with such other Governmental Authorities and shall cause such documents to be amended, in each case, as are necessary to change the name of the JV to such name(s) as may be mutually agreed by the Parties; provided that, the Parties shall use reasonable best efforts to prevent the JV and its Subsidiaries from taking any actions not set forth above without the prior consent of each of the Parties.

(e)As soon as reasonably practicable after the date hereof, each Party will notify the other Party of (i) its designees as the initial two members of the Engineering Committee, (ii) in the case of ▇▇▇▇▇▇▇▇, its designee as the initial General Manager, and (iii) in the case of GE, its designee as the initial Finance Manager.  If any of the designees of either Party under clauses (i) through (iii) of the preceding sentence are not reasonably acceptable to the other Party, the other Party will promptly notify the first Party, and the first Party will designate another person to serve in such position that is reasonably acceptable to the other Party.  As soon as reasonably practicable after the date hereof, ▇▇▇▇▇▇▇▇ and GE will agree upon the initial Technology Manager.  

5.7Further Assurances.  Each Party shall execute and deliver all such further and additional instruments and agreements and shall take such further and additional actions, as may be reasonably necessary or desirable to evidence or carry out the provisions of this Agreement or to consummate the transactions contemplated by this Agreement.

5.8Tax Treatment.  The Parties intend that the JV be treated as a partnership for U.S. federal income tax purposes in accordance with Treasury Regulation Sections 301.7701-3(b)(i) and (ii), respectively, and no election to the contrary shall be made without the advance written consent of ▇▇▇▇▇▇▇▇ and GE.

---

 

5.9Additional Transaction Documents.  Prior to the Closing, the Parties shall use their reasonable best efforts to, in good faith, negotiate and agree upon final versions of each of the Subject Ancillary Documents, the terms and conditions of which shall be reasonably acceptable to the Parties and consistent with the terms and conditions for each such Subject Ancillary Document set forth in the Ancillary Document Agreement, which the Parties agree contain all of the terms and conditions deemed material by the Parties to each such Subject Ancillary Document.  Prior to the Closing, the Parties shall use their reasonable best efforts to, in good faith, negotiate and agree upon final versions, to the extent not already agreed prior to the date hereof, of each annex, exhibit, schedule, addendum or similar attachment to each of the Subject Ancillary Documents and the other Ancillary Documents.

5.10Failure to Agree Upon Terms of Subject Ancillary Documents.  In the event any of the Subject Ancillary Documents are not finalized prior to August 31, 2015, the Parties shall promptly submit all open issues relating thereto for resolution in accordance with Section 8.10.  To the extent that any of the Subject Ancillary Documents are not finalized and executed and delivered by the Parties thereto in accordance with Section 8.10 at the Closing, the Parties and the JV shall perform the terms set forth in, and operate the JV in accordance with, this Agreement, the terms of the agreed-to Ancillary Documents, and, to the extent any Subject Ancillary Document has not been agreed to, the terms and conditions of such Subject Ancillary Document as set forth in the Ancillary Document Agreement.  For the avoidance of doubt, neither the failure by the Parties to negotiate and agree upon final versions of each of the Subject Ancillary Documents nor any failure of the Parties to resolve any open issues related thereto shall constitute a breach of this Agreement or give rise to a right of any Party to terminate this Agreement.

5.11Conduct of Fuel Systems Business. 

(a)From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by GE (which consent shall not be unreasonably withheld, conditioned or delayed), ▇▇▇▇▇▇▇▇ shall, and shall cause its Affiliates to, (i) conduct its fuel systems business in the ordinary course of business consistent with past practice; and (ii) use reasonable best efforts to preserve the rights, goodwill and relationships of its employees, suppliers, regulators and others having business relationships with its fuel systems business.

(b)From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by ▇▇▇▇▇▇▇▇ (which consent shall not be unreasonably withheld, conditioned or delayed), GE shall, and shall cause its Affiliates to, conduct its sourcing activities with respect to its fuel systems business in the ordinary course of business consistent with past practice.

5.12JV Facilities and Location of Secondees.  As promptly as reasonably practicable after the date hereof, GE and ▇▇▇▇▇▇▇▇ will determine the specific location of the Secondees and the applicable access and use rights for each facility as well as access and use rights to any other engineering, manufacturing, or service locations of each of ▇▇▇▇▇▇▇▇ and GE.

---

 

5.13Omnibus Confidentiality Agreement.  The Parties shall use reasonable best efforts to negotiate and enter into an omnibus confidentiality agreement regarding confidential information of GE, ▇▇▇▇▇▇▇▇ and the JV and, if such an agreement is finalized prior to the Closing, GE and ▇▇▇▇▇▇▇▇ shall agree to amend the Operating Agreement and the other Transaction Documents to the extent necessary to reflect the entry into such omnibus confidentiality agreement.

5.14JV Accounts Receivable and Accounts Payable.  Immediately prior to the Closing, (a) GE will pay to the JV all amounts invoiced by the JV to GE (whether or not otherwise then due and owing) for products and services delivered by the JV to GE prior to the Closing, (b) ▇▇▇▇▇▇▇▇ will pay to the JV all amounts, if any, invoiced by the JV to ▇▇▇▇▇▇▇▇ (whether or not otherwise then due and owing) for products and services delivered by the JV to ▇▇▇▇▇▇▇▇ prior to the Closing, if any, (c) the JV will pay to ▇▇▇▇▇▇▇▇ all amounts invoiced by ▇▇▇▇▇▇▇▇ to the JV (whether or not otherwise then due and owing) for products and services delivered by ▇▇▇▇▇▇▇▇ to the JV prior to the Closing, and (d) subject to any mandatory provisions of applicable Law, the JV will distribute all of its then available cash to ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Affiliate on a pro rata basis based on their then respective ownership interests in the JV.

 

ARTICLE VI

CONDITIONS TO CLOSING

6.1Conditions to Obligations of the Parties.  The respective obligations of each of the Parties under this Agreement to consummate the transactions contemplated hereby will be subject to the satisfaction, at or prior to the Closing, of the following conditions:

(a)No Violation.  At the Closing there shall be no (i) Law in effect restraining or prohibiting the consummation of the transactions contemplated by this Agreement or making the consummation of the transactions contemplated by this Agreement illegal, or (ii) investigation, Claim or litigation instituted, commenced, pending or threatened by any Governmental Authority that seeks to prohibit the transactions contemplated by this Agreement.

(b)Governmental Approvals.  The waiting period under the HSR Act shall have expired and the ▇▇▇▇▇▇▇▇ Members, GE or the JV, as applicable, shall have obtained or made any other consent, approval, order or authorization of, or registration, declaration or Filing with, any Governmental Authority under any applicable Antitrust Laws required to be obtained or made by it in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

6.2Conditions to Obligations of ▇▇▇▇▇▇▇▇.  The obligations of ▇▇▇▇▇▇▇▇ to consummate the Closing are subject to the satisfaction or waiver of each of the following conditions:

---

 

(a)the representations and warranties of GE contained in Section 4.2 shall be true and correct in all material respects as of the date hereof and as of the Closing Date with the same effect as if made on and as of the Closing Date;

(b)GE shall have performed and complied in all material respects with all agreements and covenants contained in this Agreement required to be performed or complied with by it prior to or at the Closing Date;

(c)▇▇▇▇▇▇▇▇ shall have received a certificate signed by a duly authorized officer of GE to the foregoing effect; and

(d)GE shall have duly executed a counterpart to:

(i)the GE Contribution Agreement;

(ii)the Purchase and Sale Agreement;

(iii)the Operating Agreement; and

(iv)each of the Closing Date Ancillary Documents to which GE is to be party.

6.3Conditions to Obligations of GE.  The obligations of GE to consummate the Closing are subject to the satisfaction or waiver of each of the following conditions:

(a)the representations and warranties of the ▇▇▇▇▇▇▇▇ Members contained in Section 4.1 shall be true and correct in all material respects as of the date hereof and as of the Closing Date with the same effect as if made on and as of the Closing Date;

(b)the ▇▇▇▇▇▇▇▇ Members and their respective Affiliates (including the JV) shall have performed and complied in all material respects with all agreements and covenants contained in this Agreement required to be performed or complied with by it prior to or at the Closing Date;

(c)GE shall have received a certificate signed by a duly authorized executive officer of ▇▇▇▇▇▇▇▇ to the foregoing effect; and

(d)the applicable ▇▇▇▇▇▇▇▇ Member and/or the JV, as applicable, shall have duly executed a counterpart to:

(i)the GE Contribution Agreement;

(ii)the Purchase and Sale Agreement;

(iii)the Operating Agreement;

(iv)the ▇▇▇▇▇▇▇▇ Contribution Agreement; and

---

 

(v)each of the Closing Date Ancillary Documents to which the applicable ▇▇▇▇▇▇▇▇ Member and/or the JV is to be party.

 

ARTICLE VII

TERMINATION

7.1Grounds for Termination.  This Agreement may be terminated at any time prior to the Closing:

(a)by mutual written agreement of the Parties;

(b)by written notice from any Party to the other Party if:

(i)the Closing has not been effected on or prior to the close of business on the Termination Date; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not be available to any Party whose failure to fulfill any of its obligations contained in this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to have occurred on or prior to such date; or

(ii)any Law or other legal restraint or prohibition preventing the Closing shall be in effect and shall have become final and nonappealable.

7.2Effect of Termination.  In the event of the termination of this Agreement pursuant to Section 7.1, this Agreement shall forthwith become void and be of no effect, without any Liability on the part of either Party or its Affiliates; provided, that the provisions contained in Section 5.2, this Article VII and Article VIII shall survive and remain in full force and effect; and provided,  further, that any such termination shall not relieve any Party of any liability for any willful breach of this Agreement arising prior to such termination.

7.3Termination of Representations and Warranties and Covenants upon the Closing.  The representations and warranties of the Parties contained in Article IV and the covenants contained in Article V (other than Section 5.2) shall terminate and be of no further force or effect upon the consummation of the Closing; provided, however, that, for the avoidance of doubt, the representations and warranties set forth in the ▇▇▇▇▇▇▇▇ Contribution Agreement or the GE Contribution Agreement, as applicable, shall survive for the periods set forth therein.

7.4No Post-Closing Remedy for Breaches of Representations and Warranties.  The Parties hereby acknowledge and agree that, following the Closing, no Person shall have any rights with respect to any breach of any of the representations or warranties contained in Article IV.

 

---

 

ARTICLE VIII

MISCELLANEOUS

8.1Notices.  All notices and other communications pursuant to this Agreement shall be in writing and shall be deemed given if delivered personally, telecopied, sent by nationally-recognized overnight courier or mailed by U.S. registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses set forth below or to such other address as the Party to whom notice is to be given may have furnished to the other Party in writing in accordance herewith.  Any such notice or communication shall be deemed to have been delivered and received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of telecopier delivery, on the date sent if confirmation of receipt is received and such notice is also promptly mailed by registered or certified mail (return receipt requested), (c) in the case of a nationally-recognized overnight courier in circumstances under which such courier guarantees next Business Day delivery, on the next Business Day after the date when sent and (d) in the case of mailing, on the fifth Business Day following that on which the piece of mail containing such communication is posted to the address provided herein or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.  Notices to Parties pursuant to this Agreement shall be given to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 8.1):

(a)       to Woodward:

 

▇▇▇▇▇▇▇▇, Inc.

▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

[***]

with a copy to (which shall not constitute notice to Woodward):

▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation

▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇

▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇

Attention:     ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇

Facsimile:     (▇▇▇) ▇▇▇-▇▇▇▇

(b)       to GE:

 

General Electric Corporation

c/o GE Aviation

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

[***]

---

 

with a copy to (which shall not constitute notice to GE):

Sidley Austin LLP

▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇  ▇▇▇▇▇

Attention:    ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇

Facsimile:    (▇▇▇) ▇▇▇-▇▇▇▇

8.2Amendments; Waivers.

(a)Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed in the case of an amendment, by all Parties to such agreement, or in the case of a waiver, by the Party against whom the waiver is to be effective.

(b)No waiver by a Party of any default, misrepresentation or breach of a warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of a warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent occurrence.  No failure or delay by a Party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof 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 or remedies provided under Law.

8.3Expenses.  Except as otherwise expressly provided in this Agreement or in any other Transaction Document, all costs and expenses incurred in connection with this Agreement and the other Transaction Documents and in closing and carrying out the transactions contemplated hereby and thereby shall be paid by the Party incurring such cost or expense.

8.4Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, personal representatives and permitted assigns.  No Party hereto may transfer or assign either this Agreement or any of its rights, interests or obligations hereunder, whether directly or indirectly, by operation of law, merger or otherwise, without the prior written approval of the other Party.  No such transfer or assignment shall relieve the transferring or assigning Party of its obligations hereunder if such transferee or assignee does not perform such obligations.

8.5Governing Law.  This Agreement shall be construed in accordance with and this Agreement and any disputes or controversies related hereto shall be governed by the internal laws of the State of Delaware without giving effect to any conflicts of laws principles thereof that would apply the laws of any other jurisdiction.

8.6Counterparts; Effectiveness.  This Agreement may be signed in any number of counterparts and the signatures delivered by telecopy or email attachment, each of which shall be an original, with the same effect as if the signatures were upon the same instrument and

---

 

delivered in person.  This Agreement shall become effective when each Party hereto shall have received a counterpart hereof signed by the other Party.

8.7Entire Agreement.  This Agreement (including the schedules and exhibits referred to herein), the other Transaction Documents (including the schedules and exhibits referred to therein) and the Confidentiality Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and negotiations, both written and oral, express or implied, between and among the Parties with respect to the subject matter of this Agreement.  No representation, warranty, promise, inducement or statement of intention has been made by either Party that is not embodied in this Agreement or such other documents, and neither Party shall be bound by, or liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein.

8.8Captions.  The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. 

8.9Severability.  If any provision of this Agreement, or the application thereof to any Person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other Persons, places and circumstances shall remain in full force and effect so long as, after excluding the portion deemed to be unenforceable, the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party.  Upon such determination that any term or other provision is invalid, unenforceable or void, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated to the greatest extent practicable in substantially the same manner as originally set forth at the later of the date this Agreement was executed or last amended.

8.10Dispute Resolution.  Prior to the Parties exercising any rights pursuant to Section 8.11, any dispute, controversy or claim (whether sounding in contract, tort or otherwise) arising out of or relating to this Agreement, including the meaning of its provisions, or the proper performance of any of its terms by either Party hereto, or its breach, termination or invalidity (each, a “Dispute”) will be resolved in accordance with the procedures specified in this Section 8.10.  Each Party hereto wishing to initiate the dispute resolution procedures set forth in this Section 8.10 shall give written notice of the Dispute to the other Party hereto (“Dispute Notice”).  If a Party has given a Dispute Notice under the preceding subsection, the Vice President, Commercial Engines Operation of GE and the Chief Executive Officer of ▇▇▇▇▇▇▇▇ (or, in either case, a designee satisfactory to the other Party) will attempt in good faith to resolve the Dispute within forty-five (45) days of the issuance of the Dispute Notice.  The Parties agree and acknowledge that such individuals shall be executives who have authority to settle the Dispute on behalf of their respective organizations.  Within fifteen (15) days after delivery of the Dispute Notice, the receiving Party will submit to the other a written response.  The response will include a statement of that Party’s position and a summary of arguments supporting that position.  Within forty-five (45) days after delivery of the Dispute Notice, the executives of GE and

---

 

▇▇▇▇▇▇▇▇ and any individual(s) accompanying them will meet at a mutually acceptable time and place, and thereafter, as often as they reasonably deem necessary, to attempt to resolve the Dispute.  If a Party gives another Party a Dispute Notice within the applicable statute of limitation or the applicable survival period, the statute of limitation or the survival period relating to that particular Dispute shall be tolled, provided that the Party pursues dispute resolution in accordance with the time frame specified in this Section 8.10.  The Parties will take any further action required to effectuate that tolling.  Each Party is required to continue to perform its obligations under this Agreement pending final resolution of any Dispute, unless to do so would be impossible or impracticable under the circumstances.  Except as required by Law, none of GE, ▇▇▇▇▇▇▇▇ nor any of their respective Representatives may disclose the existence, content, or results of any dispute resolution procedure hereunder without the prior written consent of each of GE and ▇▇▇▇▇▇▇▇.

8.11Consent to Jurisdiction.  Any dispute, controversy or claim (whether sounding in contract, tort or otherwise) arising out of or relating to this Agreement, including the meaning of its provisions, or the proper performance of any of its terms by either Party hereto, or its breach, termination or invalidity, shall be subject to the exclusive jurisdiction of the courts of the State of Delaware sitting in the City of Wilmington or of the Federal courts sitting therein.  Each of the Parties hereby consents and submits to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such Proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection which it may now or hereafter have to the laying of the venue of any such Proceeding in any such court or that any such Proceeding which is brought in any such court has been brought in an inconvenient forum.  Process in any such Proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court.

8.12Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (c) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (d) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.12.  

8.13Third Party Beneficiaries.  No provision of this Agreement shall create any third party beneficiary rights in any other Person, including any employee or former employee of ▇▇▇▇▇▇▇▇ or GE or any of their respective Affiliates (including any beneficiary or dependent thereof).

---

 

8.14Specific Performance.  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 shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement and, in any action for specific performance, each Party waives the defense of adequacy of a remedy at law and waives any requirement for the securing or posting of any bond in connection with such remedy, this being in addition to any other remedy to which they are entitled at law or in equity (subject to the limitations set forth in this Agreement).  The Parties hereto further agree that (i) by seeking the remedies provided for in this Section 8.14, a Party shall not in any respect waive its right to seek any other form of relief that may be available to a Party under this Agreement (including monetary damages) for breach of any of the provisions of this Agreement, and (ii) nothing set forth in this Section 8.14 shall require any Party hereto to institute any Proceeding for (or limit any Party’s right to institute any Proceeding for) specific performance under this Section 8.14 prior or as a condition to exercising any termination right under Article VII (and pursuing damages after such termination), nor shall the commencement of any Proceeding pursuant to this Section 8.14 or anything set forth in this Section 8.14 restrict or limit any Party’s right to terminate this Agreement in accordance with the terms of Article VII or pursue any other remedies under this Agreement that may be available at any time.

8.15No Presumption against Drafting Party.  ▇▇▇▇▇▇▇▇ and GE acknowledge that each of the Parties hereto has been represented by counsel in connection with the negotiation and execution of this Agreement and the other Transaction Documents.  Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting Party has no application and is expressly waived.

 

* * * *

 

 

---

 

IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date first above written.

 

 

 

 

---

 

APPENDIX A

TO MASTER AGREEMENT

“Affiliate”, with respect to any Person, means any other Person directly or indirectly controlling, controlled by or under common control with, such Person; provided, however, that (i) with respect to the JV and its Subsidiaries, “Affiliates” shall be deemed to expressly exclude GE and ▇▇▇▇▇▇▇▇ and each of their Affiliates, (ii) with respect to ▇▇▇▇▇▇▇▇ and its Subsidiaries, “Affiliates” shall be deemed to expressly exclude the JV and its Subsidiaries, and (iii) with respect to GE and its Subsidiaries, “Affiliates” shall be deemed to expressly exclude the JV and its Subsidiaries.  For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” or “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise.

“Agreement” has the meaning set forth in the introduction to this Agreement.

“Ancillary Document Agreement” means that certain Ancillary Document Agreement of even date herewith, including the exhibits and schedules thereto, by and between GE and ▇▇▇▇▇▇▇▇, as the same may be amended from time to time.

“Ancillary Documents” means the GE Ancillary Documents and the ▇▇▇▇▇▇▇▇ Ancillary Documents.

“Antitrust Division” has the meaning set forth in Section 5.1(b) of this Agreement.

“Antitrust Law” means the ▇▇▇▇▇▇▇ Antitrust Act of 1890, the ▇▇▇▇▇▇▇ Act of 1914, the HSR Act, the Federal Trade Commission Act, and all other domestic or foreign Laws passed by a domestic or foreign Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.

“Bankruptcy and Equity Exception” has the meaning set forth in Section 4.1(b) of this Agreement.

“Business Day” means each day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.

“Claims” means all rights to causes of action, claims, demands, rights and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate. 

“Closing” has the meaning set forth in Section 3.4 of this Agreement.

“Closing Date” means the date of the Closing, as further described in Section 3.4 of this Agreement.

---

 

“Closing Date Ancillary Documents” has the meaning ascribed to such term in the Ancillary Document Agreement.

“Closing Date Extension Option” has the meaning set forth in Section 3.3 of this Agreement.

“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of October 28, 2014, by and between GE and ▇▇▇▇▇▇▇▇.

“Consent” means an authorization, consent, approval, permit or license issued by, or waiver from, any Governmental Authority or other Person.

“Contract” means each legally-binding contract, agreement, option, lease, license, cross-license, sale and purchase order, commitment and other instrument of any kind, whether written or oral.

“Director” has the meaning ascribed to such term in the Operating Agreement.

“Dispute” has the meaning set forth in Section 8.10 of this Agreement.

“Dispute Notice” has the meaning set forth in Section 8.10 of this Agreement.

“Encumbrance” means, with respect to any asset, any lien, mortgage, pledge, hypothecation, right of others, Claim, security interest, encumbrance, lease, sublease, license, interest, option, charge or other restriction or limitation of any nature whatsoever in respect of such asset.

“Engineering Committee” has the meaning ascribed to such term in the Operating Agreement.

“Filing” means a registration or filing with, or notice to, any Governmental Authority or other Person.

“Finance Manager” has the meaning ascribed to such term in the Operating Agreement.

“Formation Date” has the meaning set forth in the recitals to this Agreement.

“FTC” has the meaning set forth in Section 5.1(b) of this Agreement.

“GE” has the meaning set forth in the introduction to this Agreement. 

“GE Ancillary Documents” has the meaning ascribed to such term in the Ancillary Document Agreement. 

“GE Contribution Agreement” has the meaning set forth in the recitals to this Agreement.

“GE Purchase” has the meaning set forth in Section 3.1 of this Agreement.

---

 

“GE Transferred Assets” has the meaning set forth in the GE Asset Contribution Agreement.

“General Manager” has the meaning ascribed to such term in the Operating Agreement.

“Governmental Approval” means an authorization, consent, approval, permit or license issued by, or a registration or filing with, or notice to, or waiver from, any Governmental Authority.

“Governmental Authority” means any United States or non-United States federal, territorial, state or local governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing.

“HSR Act” means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“Initial LLC Agreement” has the meaning set forth in the recitals to this Agreement.

“Initial Manager” has the meaning set forth in Section 5.6(a) of this Agreement.

“Interim Period” has the meaning set forth in Section 5.3 of this Agreement.

“JV” has the meaning set forth in the recitals to this Agreement.

“Knowledge” means, (i) with respect to ▇▇▇▇▇▇▇▇, the actual knowledge, after reasonable inquiry, of [***] and (ii) with respect to GE, the actual knowledge, after reasonable inquiry, of [***]. 

“Law” means, with respect to any Person, any federal, state, local or foreign statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any Governmental Authority applicable to such Person or any of its Affiliates or any of their respective properties, assets, officers, directors, managers (in the case of a limited liability company), employees, consultants or agents.

“Liability” means, with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, absolute, contingent, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of such Person.

“Membership Interest” has the meaning set forth in the Operating Agreement.

“Operating Agreement” has the meaning set forth in the recitals to this Agreement.

---

 

“Parties” has the meaning set forth in the introduction to this Agreement.

“Permits” means all permits, licenses, franchises, approvals, certificates, certifications, clearances, consents, waivers, concessions, exemptions, orders, registrations, notices or other authorizations of any Governmental Authority.

“Person” means an individual, corporation, partnership, association, limited liability company, trust, estate or other similar business entity or organization, including a Governmental Authority and any syndicate or group that would be deemed to be a person under Section 13(d)(3) of the United States Securities Exchange Act of 1934, as amended.

“Proceeding” means any action, suit, Claim, charge, hearing, arbitration, audit, or proceeding (public or private).

“Purchase and Sale Agreement” has the meaning set forth in the recitals to this Agreement.

“Purchased Membership Interests” has the meaning set forth in the recitals to this Agreement.

“Representatives” has the meaning set forth in Section 5.2 of this Agreement.

“Secondee” has the meaning set forth in the Operating Agreement.

“Signing Date” means the date of this Agreement.

“Specified Filings” has the meaning set forth in Section 5.1(b) of this Agreement.

“Subject Ancillary Documents” has the meaning ascribed to such term in the Ancillary Document Agreement.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company or other similar entity as to which more than 50% of the outstanding capital stock or other securities having voting rights or power is owned or controlled, directly or indirectly, by such Person and/or by one or more of such Person’s direct or indirect subsidiaries.

“Technology Manager” has the meaning ascribed to such term in the Operating Agreement.

“Termination Date” means June 30, 2016.

“Transaction Documents” means this Agreement, the Ancillary Document Agreement and the Ancillary Documents.

“▇▇▇▇▇▇▇▇” has the meaning set forth in the introduction to this Agreement. 

“▇▇▇▇▇▇▇▇ Affiliate” has the meaning set forth in the introduction to this Agreement. 

---

 

“▇▇▇▇▇▇▇▇ Ancillary Documents” has the meaning ascribed to such term in the Ancillary Document Agreement.

“▇▇▇▇▇▇▇▇ Contribution Agreement” has the meaning set forth in the recitals to this Agreement.

“▇▇▇▇▇▇▇▇ Members” has the meaning set forth in the introduction to this Agreement.

* * * *

 

 

---

 

Exhibit A

 

Form of ▇▇▇▇▇▇▇▇ Contribution Agreement

 

See attached

 

 

---

 

Exhibit B

 

Form of Initial LLC Agreement

 

See attached

 

 

---

 

Exhibit C

 

Form of GE Contribution Agreement

 

See attached

 

 

---

 

Exhibit D

 

Form of Purchase and Sale Agreement

 

See attached

 

 

---

 

Exhibit E

 

Form of Operating Agreement

 

See attached

 

 

 

 

 

---

 

Exhibit A

 

CONTRIBUTION AGREEMENT

CONTRIBUTION AGREEMENT (this “Agreement”) dated as of [●] (the “Effective Date”), between ▇▇▇▇▇▇▇▇, Inc., a Delaware corporation (“▇▇▇▇▇▇▇▇”), and [Company], a Delaware limited liability company (the “Company”).

WHEREAS ▇▇▇▇▇▇▇▇ desires to assign to the Company all of ▇▇▇▇▇▇▇▇’▇ rights and certain of ▇▇▇▇▇▇▇▇’▇ obligations under each of the contracts listed on Schedule I to this Agreement (the “Contributed Assets”) and the Company desires to assume all of such rights and obligations of ▇▇▇▇▇▇▇▇ under the Contributed Assets.

WHEREAS, in exchange for the assignment by ▇▇▇▇▇▇▇▇ of the Contributed Assets, the Company desires to issue to ▇▇▇▇▇▇▇▇ 100% of the equity interests in the Company (such equity interests, the “Company Equity Interests”).

NOW, THEREFORE, in consideration of the mutual covenants of this Agreement and for other good and valuable consideration the adequacy and receipt of which the parties to this Agreement hereby acknowledge, the parties agree as follows:

1.Assignment and Assumption.  Effective as of the Effective Date, (a) ▇▇▇▇▇▇▇▇ assigns to the Company all of ▇▇▇▇▇▇▇▇’▇ rights and obligations with respect to each of the Contributed Assets and (b) the Company assumes all of the rights and obligations of ▇▇▇▇▇▇▇▇ with respect to each of the Contributed Assets, in each case, other than to the extent such obligations, but for a breach or default by ▇▇▇▇▇▇▇▇, would have been paid, performed or otherwise discharged on or prior to the Effective Date or arise out of any such breach or default.

2.Issuance.  Effective of the Effective Date and in exchange for the contribution of the Contributed Assets by ▇▇▇▇▇▇▇▇, the Company hereby issues to ▇▇▇▇▇▇▇▇ the Company Equity Interests.

3.Representations and Warranties of the Company.  The Company represents and warrants to ▇▇▇▇▇▇▇▇ as follows:

(a)Authority.  The Company has the requisite limited liability company power and authority to enter into and deliver this Agreement, perform its obligations set forth in this Agreement, and consummate the transactions contemplated by this Agreement.  The Company has duly executed and delivered this Agreement.  This Agreement is a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or equity).

(b)Non-Contravention.  The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated by this Agreement do not and will not (i) contravene or conflict with the certificate of formation of the Company or the operating agreement of the Company; (ii) assuming the truthfulness of the representations of all other parties to this Agreement, contravene or conflict with or constitute a violation of any provision of any law binding upon or applicable to the Company or by which any of its assets or properties is bound or affected; or

---

 

(iii) constitute a default under (or an event that, with or without notice or lapse of time or both, could reasonably be expected to become a default or an event of default) or give rise (with or without notice or lapse of time or both) to a right of termination, amendment, cancellation or acceleration under any agreement, contract, note, bond, mortgage, indenture, lease, franchise, permit or other similar authorization or other instrument binding upon the Company.

(c)Equity Duly Authorized.  The Company Equity Interests, when issued and delivered in accordance with the terms of this Agreement, will be duly authorized and validly issued and shall be free and clear of any security interest, pledge, mortgage, lien, charge, adverse claim of ownership or use, restriction on transfer (such as a right of first refusal or other similar rights), defect of title, or other encumbrance of any kind or character (“Liens”), other than Liens (if any) created (i) by or through ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇’▇ representatives; (ii) under or pursuant to applicable federal or state securities laws; or (iii) under the terms of this Agreement.

4.Representations and Warranties of ▇▇▇▇▇▇▇▇.  ▇▇▇▇▇▇▇▇ represents and warrants to the Company as follows:

(a)Authority.  ▇▇▇▇▇▇▇▇ has the requisite corporate power and authority to enter into and deliver this Agreement, perform its obligations set forth in this Agreement, and consummate the transactions contemplated by this Agreement.  ▇▇▇▇▇▇▇▇ has duly executed and delivered this Agreement.  This Agreement is a valid, legal and binding obligation of ▇▇▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇▇▇ in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or equity).

(b)Non-Contravention.  The execution, delivery and performance by ▇▇▇▇▇▇▇▇ of this Agreement and the consummation by ▇▇▇▇▇▇▇▇ of the transactions contemplated by this Agreement do not and will not (i) contravene or conflict with the certificate of incorporation of ▇▇▇▇▇▇▇▇ or the bylaws of ▇▇▇▇▇▇▇▇; (ii) assuming the truthfulness of the representations of all other parties to this Agreement, contravene or conflict with or constitute a violation of any provision of any law binding upon or applicable to ▇▇▇▇▇▇▇▇ or by which any of its assets or properties is bound or affected; or (iii) constitute a default under (or an event that, with or without notice or lapse of time or both, could reasonably be expected to become a default or an event of default) or give rise (with or without notice or lapse of time or both) to a right of termination, amendment, cancellation or acceleration under any agreement, contract, note, bond, mortgage, indenture, lease, franchise, permit or other similar authorization or other instrument binding upon ▇▇▇▇▇▇▇▇.

(c)Limitations on Disposition and Resale.  ▇▇▇▇▇▇▇▇ understands and acknowledges that the Company Equity Interests have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or the securities laws of any state or any foreign jurisdiction and, unless such Company Equity Interests are so registered, that they may not be offered, sold, transferred or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction.  ▇▇▇▇▇▇▇▇ understands that ▇▇▇▇▇▇▇▇ may not be able to liquidate its investment in the Company Equity Interests and agrees not to sell, transfer or otherwise dispose of the Company Equity Interests (or any portion thereof), unless such Company Equity Interests have been so registered or an exemption from the

---

 

requirement of registration is available under the Securities Act and any applicable state or foreign securities laws.

5.Miscellaneous.

(a)Amendments and Waivers.  Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed in the case of an amendment, by all parties to such agreement, or in the case of a waiver, by the party against whom the waiver is to be effective.  No waiver by a party of any default, misrepresentation or breach of a warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of a warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent occurrence.  No failure or delay by a party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof 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 or remedies provided under law.

(b)Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, heirs, personal representatives and permitted assigns.  No party hereto may transfer or assign either this Agreement or any of its rights, interests or obligations hereunder, whether directly or indirectly, by operation of law, merger or otherwise, without the prior written approval of the other party.  No such transfer or assignment shall relieve the transferring or assigning party of its obligations hereunder if such transferee or assignee does not perform such obligations.

(c)Governing Law.  This Agreement shall be construed in accordance with and this Agreement and any disputes or controversies related hereto shall be governed by the internal laws of the State of Delaware without giving effect to any conflicts of laws principles thereof that would apply the laws of any other jurisdiction.

(d)Counterparts; Effectiveness.  This Agreement may be signed in any number of counterparts and the signatures delivered by telecopy or email attachment, each of which shall be an original, with the same effect as if the signatures were upon the same instrument and delivered in person.  This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party.

(e)Entire Agreement.  This Agreement (including the schedules and exhibits referred to herein) constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and negotiations, both written and oral, express or implied, between and among the parties with respect to the subject matter of this Agreement.  No representation, warranty, promise, inducement or statement of intention has been made by either party that is not embodied in this Agreement or such other documents, and neither party shall be bound by, or liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein.

---

 

(f)Severability.  If any provision of this Agreement, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other persons, places and circumstances shall remain in full force and effect so long as, after excluding the portion deemed to be unenforceable, the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, unenforceable or void, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated to the greatest extent practicable in substantially the same manner as originally set forth at the later of the date this Agreement was executed or last amended.

(g)Consent to Jurisdiction.  Any dispute, controversy or claim (whether sounding in contract, tort or otherwise) arising out of or relating to this Agreement, including the meaning of its provisions, or the proper performance of any of its terms by either party hereto, or its breach, termination or invalidity, shall be subject to the exclusive jurisdiction of the courts of the State of Delaware sitting in the City of Wilmington or of the federal courts sitting therein. Each of the parties hereby consents and submits to the exclusive 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 which 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.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

(h)Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 5(h).  

(i)Third Party Beneficiaries.  No provision of this Agreement shall create any third party beneficiary rights in any other person.

(j)Further Assurances.  Each of the parties hereto will cooperate with the others and execute and deliver to the others such other instruments and documents and take such other actions as may be reasonably requested from time to time by any party hereto as necessary to carry out, evidence and confirm the intended purposes of this Agreement.

[Remainder of page intentionally blank]

 

 

---

 

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

 

 

 

---

 

Schedule I

 

Contributed Assets

[***]

 

 

---

 

EXHIBIT B

LIMITED LIABLITY COMPANY AGREEMENT

OF

[JV] LLC

This Limited Liability Company Agreement (this “Agreement”) of [JV] LLC, a Delaware limited liability company (the “Company”), is entered into as of [●] and shall constitute the “limited liability company agreement” of the Company within the meaning of Section 18-101(7) of the Delaware Limited Liability Company Act, Title 6, Delaware Corporations Code, Section 18-101 et seq., as amended (the “Act”).

WHEREAS, pursuant to a Contribution Agreement dated [●], between ▇▇▇▇▇▇▇▇ and the Company, ▇▇▇▇▇▇▇▇ contributed certain assets to the Company in exchange for 100% of the equity interests in the Company.

WHEREAS, pursuant to a Contribution Agreement dated [●], between ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Affiliate, ▇▇▇▇▇▇▇▇ contributed 10% of the equity interests in the Company to ▇▇▇▇▇▇▇▇ Affiliate in exchange for 100% of the equity interests in ▇▇▇▇▇▇▇▇ Affiliate.

NOW, THEREFORE, in consideration of the mutual covenants of this Agreement and for other good and valuable consideration the adequacy and receipt of which the members hereby acknowledge, the Members agree as follows:

1.Except as otherwise provided in this Agreement, the default provisions of the Act shall apply to the Company.

2.The name of the Company shall be “[JV] LLC”.

3.▇▇▇▇▇▇▇▇, Inc. (“▇▇▇▇▇▇▇▇”) and [●] (“▇▇▇▇▇▇▇▇ Affiliate” and together with ▇▇▇▇▇▇▇▇, the “Members”) are the sole “members” of the Company within the meaning of Section 18-101(11) of the Act.

4.The Company shall maintain a Delaware registered office and agent for the service of process as required by the Act.  In the event the registered agent ceases to act as such for any reason or the registered office shall change, ▇▇▇▇▇▇▇▇ shall promptly designate a replacement registered agent or file a notice of change of address, as the case may be.

5.The purpose and scope of the Company shall be to engage in such lawful activities as shall be determined by ▇▇▇▇▇▇▇▇ in its sole and absolute discretion.

6.The term of the Company began as of the date of filing of the certificate of formation for the Company in accordance with Section 18-201 of the Act and, unless otherwise specified in a certificate of cancellation filed by the Members in respect of the Company pursuant to Section 18-203 of the Act, such term shall continue in perpetuity.

7.Title to all Company property shall be held in the name of the Company; provided,  however, that the Company shall make such distributions of cash and/or property to the Members as ▇▇▇▇▇▇▇▇ shall from time to time determine in its sole and absolute discretion.

---

 

8.Except as otherwise required by applicable law, the Members shall have no personal liability for the debts and obligations of the Company.

9.A separate capital account shall be maintained for each Member in a manner that complies with the Regulations (“Treasury Regulations”) promulgated under section 704 of the Internal Revenue Code of 1986, as amended.  Without limiting the generality of the foregoing, such capital accounts shall be (a) increased for all capital contributions (i.e., the amount of cash and fair market value of any contributed property) and allocations of  items of income and gain and (b) decreased by all distributions (i.e., the amount of cash and fair market value of any distributed property) and allocations of items of  loss and expense. Schedule A to this Agreement sets forth the percentage interest for each Member and the initial balance of their capital account.

10.Unless otherwise required by the Treasury Regulations, all items of income, gain, loss, deduction and credit shall be allocated among the Members in accordance with their percentage interests.

11.The Members shall have no obligation to make any contributions to the capital of the Company and shall make only such contributions as ▇▇▇▇▇▇▇▇ shall from time to time determine in its sole and absolute discretion.

12.The Members shall have no obligation to provide any services to the Company and shall provide only such services as ▇▇▇▇▇▇▇▇ shall from time to time determine in its sole and absolute discretion.

13.The Company shall indemnify the Members for and against any loss, damage, claim or expense (including attorneys' fees) whatsoever incurred by the Members relating to or arising out of any act or omission or alleged acts or omissions performed or omitted by the Members on behalf of the Company, to the fullest extent permitted by law.

14.▇▇▇▇▇▇▇▇ shall control the management and operation of the Company in such manner as it shall determine in its sole and absolute discretion.  ▇▇▇▇▇▇▇▇ may appoint, remove and replace managers, officers and employees of the Company from time to time in its sole and absolute discretion.  Notwithstanding any provision of this Agreement to the contrary, any contract, agreement, deed, lease, note or other document or instrument executed on behalf of the Company by ▇▇▇▇▇▇▇▇ shall be deemed to have been duly executed by the Company and third parties shall be entitled to rely upon ▇▇▇▇▇▇▇▇'▇ power to bind the Company without otherwise ascertaining that the requirements of this Agreement have been satisfied. 

▇▇.▇▇ the maximum extent permitted by the Act and other applicable law, the Members: (a) shall not be subject to any fiduciary or other duties to the Company; and (b) shall not be liable to the Company for any action or omission concerning the Company or otherwise.

16.The Members may transfer all or any portion of their respective interest in the Company with the consent of ▇▇▇▇▇▇▇▇.  In the event of any such transfer, this Agreement shall be amended to reflect the respective rights and obligations of the Members and the transferee or transferees.  No person shall be admitted to the Company as an additional member without the written consent of ▇▇▇▇▇▇▇▇, which consent may be withheld in ▇▇▇▇▇▇▇▇’▇ sole and absolute discretion.

---

 

▇▇.▇▇ is the intention of the Members that the Company be treated as a partnership for federal, state and local income tax purposes.  The Members agree not to take any action or fail to take any action (including by amendment of this Agreement) which action or inaction would be inconsistent with such treatment.

18.The interpretation and enforceability of this Agreement and the rights and liabilities of the Members as such shall be governed by the laws of the State of Delaware as such laws are applied in connection with limited liability company operating agreements entered into and wholly performed upon in Delaware by residents of Delaware.  To the extent permitted by the Act and other applicable law, the provisions of this Agreement shall supersede any contrary provisions of the Act or other applicable law.

▇▇.▇▇ the event any provision of this Agreement is determined to be invalid or unenforceable, such provision shall be deemed severed from the remainder of this Agreement and replaced with a valid and enforceable provision as similar in intent as reasonably possible to the provision so severed, and shall not cause the invalidity or unenforceability of the remainder of this Agreement.

20.This Agreement may be amended, in whole or in part, only through a written amendment executed by the Members.

21.This Agreement contains the entire understanding and intent of the Members regarding the Company and supersedes any prior written or oral agreement respecting the Company.  There are no representations, agreements, arrangements, or understandings, oral or written, of the Members relating to the Company which are not fully expressed in this Agreement.

[Signature page follows]

 

 

---

 

IN WITNESS WHEREOF, the Member has executed this Agreement as of the date first above written.

 

 

 

 

---

 

Schedule A

 

 

 

 

---

 

EXHIBIT C

CONTRIBUTION AGREEMENT

CONTRIBUTION AGREEMENT (this “Agreement”) dated as of [●] (the “Effective Date”), between General Electric Company, a New York corporation (acting through its GE Aviation business unit (“GE”), and [Company], a Delaware limited liability company (the “Company”).

WHEREAS GE desires to assign to the Company all of GE’s rights and certain of GE’s obligations under each of the contracts listed on Schedule I to this Agreement (the “Contributed Assets”) and the Company desires to assume all of such rights and obligations of GE under the Contributed Assets.

NOW, THEREFORE, in consideration of the mutual covenants of this Agreement and for other good and valuable consideration the adequacy and receipt of which the parties to this Agreement hereby acknowledge, the parties agree as follows:

1.Assignment and Assumption.  Effective as of the Effective Date, (a) GE assigns to the Company all of GE’s rights and obligations with respect to each of the Contributed Assets and (b) the Company assumes all of the rights and obligations of GE with respect to each of the Contributed Assets, in each case, other than to the extent such obligations, but for a breach or default by GE, would have been paid, performed or otherwise discharged on or prior to the Effective Date or arise out of any such breach or default.

2.Representations and Warranties of the Company.  The Company represents and warrants to GE as follows:

(a)Authority.  The Company has the requisite limited liability company power and authority to enter into and deliver this Agreement, perform its obligations set forth in this Agreement, and consummate the transactions contemplated by this Agreement.  The Company has duly executed and delivered this Agreement.  This Agreement is a valid, legal and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or equity).

(b)Non-Contravention.  The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated by this Agreement do not and will not (i) contravene or conflict with the certificate of formation of the Company or the operating agreement of the Company; (ii) assuming the truthfulness of the representations of all other parties to this Agreement, contravene or conflict with or constitute a violation of any provision of any law binding upon or applicable to the Company or by which any of its assets or properties is bound or affected; or (iii) constitute a default under (or an event that, with or without notice or lapse of time or both, could reasonably be expected to become a default or an event of default) or give rise (with or without notice or lapse of time or both) to a right of termination, amendment, cancellation or acceleration under any agreement, contract, note, bond, mortgage, indenture, lease, franchise, permit or other similar authorization or other instrument binding upon the Company.

---

 

3.Representations and Warranties of GE.  GE represents and warrants to the Company as follows:

(a)Authority.  GE has the requisite corporate power and authority to enter into and deliver this Agreement, perform its obligations set forth in this Agreement, and consummate the transactions contemplated by this Agreement.  GE has duly executed and delivered this Agreement.  This Agreement is a valid, legal and binding obligation of GE, enforceable against GE in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether such enforcement is considered in a proceeding at law or equity).

(b)Non-Contravention.  The execution, delivery and performance by GE of this Agreement and the consummation by GE of the transactions contemplated by this Agreement do not and will not (i) contravene or conflict with the certificate of incorporation of GE or the bylaws of GE; (ii) assuming the truthfulness of the representations of all other parties to this Agreement, contravene or conflict with or constitute a violation of any provision of any law binding upon or applicable to GE or by which any of its assets or properties is bound or affected; or (iii) constitute a default under (or an event that, with or without notice or lapse of time or both, could reasonably be expected to become a default or an event of default) or give rise (with or without notice or lapse of time or both) to a right of termination, amendment, cancellation or acceleration under any agreement, contract, note, bond, mortgage, indenture, lease, franchise, permit or other similar authorization or other instrument binding upon GE.

4.Miscellaneous.

(a)Amendments and Waivers.  Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed in the case of an amendment, by all parties to such agreement, or in the case of a waiver, by the party against whom the waiver is to be effective.  No waiver by a party of any default, misrepresentation or breach of a warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of a warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent occurrence.  No failure or delay by a party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof 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 or remedies provided under law.

(b)Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, heirs, personal representatives and permitted assigns.  No party hereto may transfer or assign either this Agreement or any of its rights, interests or obligations hereunder, whether directly or indirectly, by operation of law, merger or otherwise, without the prior written approval of the other party.  No such transfer or assignment shall relieve the transferring or assigning party of its obligations hereunder if such transferee or assignee does not perform such obligations.

(c)Governing Law.  This Agreement shall be construed in accordance with and this Agreement and any disputes or controversies related hereto shall be governed by the internal laws of the State of Delaware without giving effect to any conflicts of laws principles thereof that would apply the laws of any other jurisdiction.

---

 

(d)Counterparts; Effectiveness.  This Agreement may be signed in any number of counterparts and the signatures delivered by telecopy or email attachment, each of which shall be an original, with the same effect as if the signatures were upon the same instrument and delivered in person.  This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party.

(e)Entire Agreement.  This Agreement (including the schedules and exhibits referred to herein) constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and negotiations, both written and oral, express or implied, between and among the parties with respect to the subject matter of this Agreement.  No representation, warranty, promise, inducement or statement of intention has been made by either party that is not embodied in this Agreement or such other documents, and neither party shall be bound by, or liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein.

(f)Severability.  If any provision of this Agreement, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other persons, places and circumstances shall remain in full force and effect so long as, after excluding the portion deemed to be unenforceable, the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, unenforceable or void, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated to the greatest extent practicable in substantially the same manner as originally set forth at the later of the date this Agreement was executed or last amended.

(g)Consent to Jurisdiction.  Any dispute, controversy or claim (whether sounding in contract, tort or otherwise) arising out of or relating to this Agreement, including the meaning of its provisions, or the proper performance of any of its terms by either party hereto, or its breach, termination or invalidity, shall be subject to the exclusive jurisdiction of the courts of the State of Delaware sitting in the City of Wilmington or of the federal courts sitting therein. Each of the parties hereby consents and submits to the exclusive 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 which 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.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

(h)Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF

---

 

LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 4(h).  

(i)Third Party Beneficiaries.  No provision of this Agreement shall create any third party beneficiary rights in any other person.

(j)Further Assurances.  Each of the parties hereto will cooperate with the others and execute and deliver to the others such other instruments and documents and take such other actions as may be reasonably requested from time to time by any party hereto as necessary to carry out, evidence and confirm the intended purposes of this Agreement.

 

[Remainder of page intentionally blank]

 

 

---

 

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.

 

 

 

 

---

 

Schedule I

 

Contributed Assets

 

[***]

 

 

 

 

 

---

 

 

PURCHASE AND SALE AGREEMENT

by and among

▇▇▇▇▇▇▇▇, INC.,

[▇▇▇▇▇▇▇▇ AFFILIATE]

and

GENERAL ELECTRIC COMPANY
(acting by and through its GE Aviation business unit)

dated as of [__________]

 

 

 

---

 

TABLE OF CONTENTS

Page

 

 

i

---

 

 

 

ii

---

 

 

 

 

ANNEXES

 

 

iii

 

 

---

 

PURCHASE AND SALE AGREEMENT

This Purchase and Sale Agreement (this “Agreement”) is entered into as of [●], by and among ▇▇▇▇▇▇▇▇, Inc., a Delaware corporation (“▇▇▇▇▇▇▇▇”), [▇▇▇▇▇▇▇▇ Affiliate], a Delaware limited liability company and wholly-owned subsidiary of ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇ Affiliate”), and General Electric Company, a New York corporation, acting by and through its GE Aviation business unit (“GE”).  ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Affiliate and GE are sometimes referred to herein collectively as the “Parties” and each individually as a “Party.”

 

W I T N E S S E T H

WHEREAS, pursuant to the Master Agreement, dated as of May [●], 2015, by and between ▇▇▇▇▇▇▇▇ and GE (the “Master Agreement”), ▇▇▇▇▇▇▇▇ and GE are forming a joint venture to strengthen their relationship and better enhance innovation, performance and reliability in fuel systems for commercial aerospace applications;

WHEREAS, on [●], ▇▇▇▇▇▇▇▇ caused to be executed and delivered, and filed with the Secretary of State of the State of Delaware, the Certificate of Formation of [●] (the “Company”)

WHEREAS, pursuant to the Contribution Agreement, dated as of [●], by and between ▇▇▇▇▇▇▇▇ and the Company (the “▇▇▇▇▇▇▇▇ Contribution Agreement”), effective on [●], (a) ▇▇▇▇▇▇▇▇ contributed the ▇▇▇▇▇▇▇▇ Contributed Assets (as defined in the ▇▇▇▇▇▇▇▇ Contribution Agreement) to the Company and (b) the Company accepted the ▇▇▇▇▇▇▇▇ Contributed Assets all upon the terms and conditions set forth therein;

WHEREAS, on [●], (a) ▇▇▇▇▇▇▇▇ contributed a 10% Membership Interest (as defined in the Operating Agreement) to ▇▇▇▇▇▇▇▇ Affiliate and (b) ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Affiliate entered into the Limited Liability Company Agreement of the Company, dated as of [●] (the “Initial Operating Agreement”);

WHEREAS, pursuant to the Contribution Agreement, dated as of the Closing Date, by and between GE and the Company (the “GE Contribution Agreement”), concurrently herewith, (a) GE is contributing the GE Contributed Assets (as defined in the GE Contribution Agreement) to the Company and (b) the Company is accepting the GE Contributed Assets, all upon the terms and conditions set forth therein;

WHEREAS, pursuant to this Agreement, at the Closing, GE shall purchase and acquire from ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ shall sell and transfer to GE, the Membership Interest set forth opposite GE’s name in Annex A (the “Purchased Membership Interest”), all upon the terms and conditions set forth herein; and

WHEREAS, concurrently herewith, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Affiliate and GE are entering into the Amended and Restated Limited Liability Company Agreement of the Company (the “Operating Agreement”), pursuant to which the Initial Operating Agreement will be amended and restated and, immediately following the Closing, the business and operations of the

---

 

Company will be conducted in accordance with the Initial Business Plan (as defined in the Operating Agreement) (the “Business”).

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

ARTICLE I

 

DEFINITIONS

Section 1.1     Incorporation of Definitions.  Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to the Master Agreement. 

Section 1.2     Certain Definitions.  For purposes of this Agreement, the following terms shall have the following meanings:

“Anti-Bribery Laws” means the Foreign Corrupt Practices Act and all other anti-corruption Laws.

“Code” means the Internal Revenue Code of 1986.  To the extent that reference is made to any particular section of the Code, such reference shall be to any corresponding provisions of any successor Law.

“Damages” means any losses, liabilities, diminution in value, claims, damages, fines, penalties, assessments by public agencies, settlements, costs or expenses (including reasonable costs of investigation and defense and reasonable attorneys’ fees).

“Financial Information” means the historical financial information of the Company set forth in Annex B.

“GAAP” means generally accepted accounting principles in the United States.

“GE Specified Representations” means the representations and warranties set forth in Section 4.1,  Section 4.2,  Section 4.6 and Section 4.7

 “Order” means any execution, judgment, order, award, ruling, decision, verdict, subpoena, injunction or settlement.

“Permitted Encumbrances” means (a) the Encumbrances set forth in Schedule 1.1; (b) Encumbrances for Taxes not yet due and payable and (c) with respect to a Person, any mechanics’, carriers’, workmen’s, repairmen’s or other like Encumbrances arising or incurred in the ordinary course of business consistent with past practice that are not resulting from a breach, default or violation by such Person or its Affiliates and that are not, individually or in the aggregate, material to the Business taken as a whole.

---

 

“Pre-Closing Period” means any taxable year or period (or a portion thereof) ending on or prior to the Closing Date.

“Proceeding” means any action, suit, Claim, charge, hearing, arbitration, audit, or proceeding (public or private).

“Post-Closing Period” means any taxable period other than a Pre-Closing Period.

“Straddle Period” means any taxable year or period that begins before and ends after the Closing Date.  For purposes of this Agreement, in the case of any Taxes that are payable for any Straddle Period, the portion of such Tax that relates to Pre-Closing Period will (i) in the case of any real and personal property Taxes and other Taxes imposed on a periodic basis, be deemed to be the amount of such Tax for the entire taxable period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period)  multiplied by a fraction, the numerator of which is the number of days in the taxable period ending at the end of the Closing Date and the denominator of which is the number of days in the entire relevant Straddle Period, and (ii) in the case of any other Tax, be deemed equal to the amount which would be payable if the relevant taxable period ended at the end of the Closing Date, except that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions), other than with respect to property placed in service after the Closing, shall be allocated on a daily basis.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company or other similar entity as to which more than fifty percent (50%) of the outstanding capital stock or other securities having voting rights or power is owned or controlled, directly or indirectly, by such Person and/or by one or more of such Person’s direct or indirect subsidiaries; provided,  however, that, except as otherwise expressly provided herein, (a) with respect to the ▇▇▇▇▇▇▇▇ Members and their Affiliates, “Subsidiaries” shall be deemed to expressly exclude the Company and its Subsidiaries, and (b) with respect to GE and its Affiliates, “Subsidiaries” shall be deemed to expressly exclude the Company and its Subsidiaries.

“Tax” (including, with correlative meaning, the term “Taxes”) means: (a) any federal, state, local or foreign net income, gross income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, employment, payroll, withholding on amounts paid to or by any Person, alternative or add-on minimum, ad valorem, value-added, transfer, stamp, or environmental tax (including taxes under Code Section 59A), or any other tax, custom, duty, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or penalty, addition to tax or additional amount imposed by any Governmental Authority; and (b) any liability for the payment of amounts determined by reference to amounts described in clause (a) as a result of being or having been a member of any group that files, will file, or has filed Tax Returns on a combined, consolidated or unitary basis, as a result of any obligation under any agreement or arrangement (including any Tax sharing arrangement), as a result of being a transferee or successor, or by contract or otherwise.

---

 

“Tax Return” means any return, report or similar statement required to be filed with respect to any Tax (including any attached schedules), including any information return, claim for refund, amended return or declaration of estimated Tax.

“Taxing Authority” means the U.S. Internal Revenue Service and any other Governmental Authority responsible for the administration of any Tax.

“Transaction Documents” means this Agreement, the Master Agreement, the ▇▇▇▇▇▇▇▇ Ancillary Documents, and the GE Ancillary Documents.

“Transfer Tax”  means any sales Tax, use Tax, direct or indirect real property transfer or gains Tax, documentary stamp Tax, value-added Tax or similar Tax and related fees.

“▇▇▇▇▇▇▇▇ Aggregate Cash” means $[250,000,000].  1

“▇▇▇▇▇▇▇▇ Annual Payment Amount” means an amount, rounded to the nearest dollar, equal to the product of the ▇▇▇▇▇▇▇▇ Aggregate Cash and 0.01957672 (for example, solely for illustrative purposes, if the ▇▇▇▇▇▇▇▇ Aggregate Cash is equal to $250,000,000, the ▇▇▇▇▇▇▇▇ Annual Payment Amount would be equal to $4,894,180).

“▇▇▇▇▇▇▇▇ Members” means, collectively, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Affiliate.

“▇▇▇▇▇▇▇▇ Specified Representations” means the representations and warranties set forth in Section 3.1,  Section 3.2,  Section 3.3,  Section 3.11 and Section 3.13.  

Section 1.3     Terms Defined in Other Sections.  The following terms are defined in the following Sections:

________________________

1Note to Draft: The ▇▇▇▇▇▇▇▇ Aggregate Cash was calculated assuming a Closing Date of October 1, 2015. If the Closing Date occurs prior to October 1, 2015, the ▇▇▇▇▇▇▇▇ Aggregate Cash payable by GE to ▇▇▇▇▇▇▇▇ will be increased to reflect the additional value GE will receive as a result of its participation in the cash flows of the Company as of the earlier Closing Date. If the Closing Date occurs after October 1, 2015, the ▇▇▇▇▇▇▇▇ Aggregate Cash payable by GE to ▇▇▇▇▇▇▇▇ will be decreased to reflect the reduction in value GE will receive as a result of the delay in its participation in the cash flows of the Company until such later Closing Date. The actual adjustment to the ▇▇▇▇▇▇▇▇ Aggregate Cash, if any, will be based on a calculation of Company profits for the period between October 1, 2015 and the actual Closing Date, where the Company profits for purposes of this calculation will equal the excess of the amount of sales covered by the Company scope and to be included in the Company financial results for the period over the amount of costs of sales covered by the Company scope and to be included in the Company financial results for the period, both determined in a manner consistent with the supply agreement pricing provisions of the Transaction Documents. For the avoidance of doubt, the NRE funded by the parties separately during the Pre-JV Period pursuant to the GE9X side letter shall not be included in the calculation of the Company’s profits for purposes of the adjustment to the ▇▇▇▇▇▇▇▇ Aggregate Cash.  Notwithstanding anything herein to the contrary, in the event that GE exercises the Closing Date Extension Option (pursuant to and as defined in the Master Agreement), the ▇▇▇▇▇▇▇▇ Aggregate Cash shall be increased above $250,000,000, if applicable, in accordance with the foregoing to reflect the date on which the Closing would have occurred but for the exercise by GE of the Closing Date Extension Option (if the Closing would have occurred prior to October 1, 2015), but shall not be decreased below $250,000,000 in accordance with the foregoing (if the Closing would have occurred after October 1, 2015). 

---

 

 

Section 1.4     Other Definitional Provisions.  The definitions in Section 1.2 and referenced in Section 1.3 shall apply equally to both the singular and plural forms of the terms

---

 

defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  All references herein to Articles, Sections and Annexes shall be deemed to be references to Articles and Sections of, and Annexes to, this Agreement unless the context shall otherwise require.  All Annexes and Schedules attached hereto shall be deemed incorporated herein as if set forth in full herein.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  Except as otherwise indicated, the word “or” shall not be exclusive and shall mean “and/or.”  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”  References to a Person are also to its permitted successors and permitted assigns.  Unless otherwise expressly provided herein, all references to “dollars” or “$” shall mean United States Dollars.  Unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.

 

ARTICLE II

 

SALE AND PURCHASE OF MEMBERSHIP INTEREST;
PURCHASE PRICE; CLOSING

Section 2.1     Sale and Purchase of Membership Interest.  Upon the terms and subject to the conditions set forth herein, simultaneously with the execution and delivery of this Agreement at the Closing, ▇▇▇▇▇▇▇▇ is hereby selling to GE, free and clear of all Encumbrances, and GE is hereby purchasing from ▇▇▇▇▇▇▇▇, the Purchased Membership Interest (the “GE Purchase”).  The Parties agree to treat the GE Purchase as a sale of interests in the Company pursuant to Section 741 of the Code.

Section 2.2     Purchase Price.  The aggregate consideration for the Purchased Membership Interest shall be an amount equal to (a) the ▇▇▇▇▇▇▇▇ Aggregate Cash, plus (b) subject to Section 2.3, the aggregate amount payable of the ▇▇▇▇▇▇▇▇ Annual Payment Amounts (the “Purchase Price”).

Section 2.3     Payments.  GE shall (i) at the Closing, pay, or cause to be paid, by wire transfer of immediately available funds to an account designated by ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇▇ the ▇▇▇▇▇▇▇▇ Aggregate Cash and (ii) on each anniversary of the Closing Date for each of the fifteen (15) years following the Closing Date, pay, or cause to be paid, by wire transfer of immediately available funds to an account designated by ▇▇▇▇▇▇▇▇ not less than three (3) Business Days prior to such anniversary of the Closing Date, to ▇▇▇▇▇▇▇▇ the ▇▇▇▇▇▇▇▇ Annual Payment Amount.

Section 2.4     Closing.  The consummation of the GE Purchase and the other transactions contemplated under this Agreement (the “Closing”) shall take place at the offices of Sidley

---

 

Austin LLP, Chicago, Illinois at the same time as the closing of the transactions contemplated by the Master Agreement (Central time) on the date of this Agreement.  The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.”

Section 2.5     Withholdings.  GE shall be entitled to deduct and withhold from payments otherwise payable under this Agreement to ▇▇▇▇▇▇▇▇ such amounts as are required with respect to the making of such payments under the Code or under any provision of state, local or foreign Tax Law.  Any amount deducted or withheld pursuant to this Section 2.5 and timely paid over to the applicable Taxing Authority shall be treated for all purposes of this Agreement as having been paid to ▇▇▇▇▇▇▇▇ in respect of which such deduction or withholding was made.

 

ARTICLE III

 

REPRESENTATIONS AND WARRANTIES OF THE ▇▇▇▇▇▇▇▇ MEMBERS

Except as set forth in the Schedules, the ▇▇▇▇▇▇▇▇ Members hereby jointly and severally represent and warrant to GE as follows:

Section 3.1     Organization, Standing and Authority; Execution and Delivery; Enforceability.

(a)     ▇▇▇▇▇▇▇▇ is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  ▇▇▇▇▇▇▇▇ Affiliate is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.  Each of the ▇▇▇▇▇▇▇▇ Members has all requisite corporate or limited liability company power and authority, as the case may be, to execute and deliver this Agreement and to consummate the transactions contemplated hereby, as applicable.  All corporate acts and other proceedings required to be taken by each of the ▇▇▇▇▇▇▇▇ Members to authorize the execution, delivery and performance of this Agreement and to consummate the transactions contemplated hereby, as applicable, have been duly and properly taken.

(b)     This Agreement has been duly executed and delivered by each of the ▇▇▇▇▇▇▇▇ Members.  Assuming that this Agreement has been duly authorized, executed and delivered by GE, this Agreement constitutes a legal, valid and binding obligation of each of the ▇▇▇▇▇▇▇▇ Members, enforceable against the ▇▇▇▇▇▇▇▇ Members, as applicable, in accordance with its terms (subject, as to enforcement, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally, general principles of equity and the discretion of courts in granting equitable remedies (the “Bankruptcy and Equity Exception”)).

Section 3.2     Consents; Conflicts.

(a)     No Consent of, or Filing with, any Governmental Authority or other Person is required to be obtained or made by or with respect to any of the ▇▇▇▇▇▇▇▇ Members in connection with the execution and delivery of this Agreement, the consummation of the

---

 

transactions contemplated hereby or the compliance by the ▇▇▇▇▇▇▇▇ Members, as applicable, with the terms and conditions hereof.

(b)     The execution and delivery of this Agreement by the ▇▇▇▇▇▇▇▇ Members and the consummation of the transactions contemplated hereby and compliance by the ▇▇▇▇▇▇▇▇ Members with the terms and conditions hereof do not conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a benefit under, or give rise to any obligation of any Person to make any payment under, or to the increased, additional, accelerated or guaranteed rights or entitlements of any Person under, or result in the creation of any Encumbrance upon any of the assets of either ▇▇▇▇▇▇▇▇ Member or the Company under, any provision of (i) the certificate of incorporation, certificate of formation, limited liability company agreement, operating agreement or by-laws (or the comparable governing instruments) of either of the ▇▇▇▇▇▇▇▇ Members, (ii) any Contract to which either ▇▇▇▇▇▇▇▇ Member or the Company is a party or by which any of its respective properties or assets are bound or (iii) any Law applicable to the operations or the assets of either ▇▇▇▇▇▇▇▇ Member or the Company, other than in the case of clause (ii), any such violation, default, termination, cancellation, acceleration, loss or Encumbrance that would not reasonably be expected to prevent or materially impede or delay the ability of the ▇▇▇▇▇▇▇▇ Members to perform their obligations under this Agreement.

Section 3.3     Membership Interests.  The ▇▇▇▇▇▇▇▇ Members have good and valid title to all of the Membership Interests, free and clear of any Encumbrances, and are the record and beneficial owner thereof.  At the Closing, good and valid title to the Purchased Membership Interest will pass to GE free and clear of any Encumbrances, other than those arising from acts of GE or its Affiliates and arising under, once executed, the Operating Agreement.  Except for the Membership Interests, as of the Closing, there are no voting securities of, or other equity interests in, the Company, reserved for issuance or outstanding.  The Membership Interests have been duly authorized and validly issued.  The Membership Interests have not been issued in violation of, and are not subject to, any preemptive, subscription or similar rights under any provision of applicable Law, the Initial Operating Agreement (or comparable governing instrument of the Company) or any Contract to which the Company or any ▇▇▇▇▇▇▇▇ Member is subject, bound or a party.  As of the Closing, there are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or that are convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which holders of the Membership Interests may vote (“Voting Debt”).  As of the Closing, there are no outstanding warrants, options, rights, “phantom” stock rights, stock appreciation rights, stock based performance units, convertible or exchangeable securities or other commitments or undertakings (other than this Agreement) (a) pursuant to which either of the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates are or may become obligated to issue, deliver or sell (i) any other voting securities of, or equity interests in, the Company, (ii) any security convertible into, or exchangeable for, voting securities of, or equity interests in, the Company or (iii) any Voting Debt, (b) pursuant to which any of the Company, the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates are or may become obligated to issue, grant, extend or enter into any such warrant, option, right, unit, security, commitment or undertaking relating to the Company or (c) that give any Person the right to receive any benefits or rights similar to any rights enjoyed by or accruing

---

 

to the holders of Membership Interests.  Other than this Agreement, the ▇▇▇▇▇▇▇▇ Ancillary Documents and the Initial Operating Agreement, as of the Closing, the Membership Interests are not subject to any voting trust agreement or other Contract, including any such Contract restricting or otherwise relating to the voting, dividend rights or disposition of the Membership Interests.

Section 3.4     Subsidiaries.  The Company does not own any direct or indirect interest in any other Person.

Section 3.5     Operations.  Except in connection with (a) the formation of the Company, (b) the preparation, execution and performance of the Transaction Documents, (c) the performance of the Company Contracts (and the preparation and execution of any amendments, modifications or supplements thereto) and (d) the transactions contemplated by the Master Agreement and the other Transaction Documents, the Company has not conducted any material operations or engaged in any material business activity or acquired any assets or assumed any Liabilities.

Section 3.6     Financial Information.  The Financial Information (a) is complete and correct in all material respects with respect to the period(s) covered thereby, and (b) has been prepared in accordance with GAAP and the accounting policies of the Company consistently applied throughout the period(s) covered thereby, to the extent applicable.

Section 3.7     Taxes.

(a)     (i) The Company’s tax basis in each of the ▇▇▇▇▇▇▇▇ Contributed Assets immediately prior to the transactions contemplated by this Agreement is no greater than the basis such asset had in the hands of ▇▇▇▇▇▇▇▇ prior to the transactions described in the ▇▇▇▇▇▇▇▇ Contribution Agreement and (ii) none of such assets was acquired by ▇▇▇▇▇▇▇▇ directly or indirectly from an Affiliate in a transaction that caused ▇▇▇▇▇▇▇▇ to have a federal income tax basis therein different from such Affiliate’s federal income tax basis.

(b)     ▇▇▇▇▇▇▇▇ has been treated as a corporation for U.S. federal (and all applicable state and local) income tax purposes at all times since the day prior to the formation of the Company, and ▇▇▇▇▇▇▇▇ Affiliate has a valid and timely election in place to be properly treated as an association taxable as a corporation, effective from and after its formation, pursuant to Treasury Regulations Section 301.7701-3(c) for U.S. federal (and all applicable state and local) income tax purposes.  The transactions described in the third and fourth recital to this Agreement occurred no later than the first Business Day after the date on which ▇▇▇▇▇▇▇▇ made its Specified Filing (as defined in the Master Agreement).

(c)     (i) All income and other material Tax Returns required to be filed by or on behalf of ▇▇▇▇▇▇▇▇ or any of its Affiliates relating to the ▇▇▇▇▇▇▇▇ Contributed Assets, the Business or the Company have been duly and timely filed with the appropriate Taxing Authority in all jurisdictions in which such Tax Returns are required to be filed, and all such Tax Returns are true, complete and correct in all material respects; and (ii) all Taxes relating to the

---

 

▇▇▇▇▇▇▇▇ Contributed Assets, the Business or the Company required to have been paid by the Company have been fully and timely paid.

(d)     All deficiencies asserted or assessments made as a result of any examinations by any Taxing Authority of the Tax Returns relating to the ▇▇▇▇▇▇▇▇ Contributed Assets, the Business or the Company have been fully paid, and there are no other audits or investigations by any Taxing Authority in progress, nor has ▇▇▇▇▇▇▇▇ or any of its Affiliates received any notice from any Taxing Authority that it intends to conduct such an audit or investigation relating to the ▇▇▇▇▇▇▇▇ Contributed Assets, the Business or the Company.

(e)     There is no Tax allocation, Tax sharing or similar agreement that will apply to any of the ▇▇▇▇▇▇▇▇ Contributed Assets after the Closing Date.

(f)     There are no powers of attorney that are currently in force with respect to any Tax matter involving the ▇▇▇▇▇▇▇▇ Contributed Assets that will be binding on or enforceable by the Company after the Closing.

(g)     ▇▇▇▇▇▇▇▇ and its Affiliates have each complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes relating to the ▇▇▇▇▇▇▇▇ Contributed Assets, the Business or the Company and have duly and timely withheld and paid over to the appropriate Taxing Authorities all amounts required to be so withheld and paid over under all applicable Laws.

(h)     No written claim has been made by a Taxing Authority in a jurisdiction in which ▇▇▇▇▇▇▇▇ or any of its Affiliates does not currently file a Tax Return relating to the ▇▇▇▇▇▇▇▇ Contributed Assets, the Business or the Company that ▇▇▇▇▇▇▇▇ or its Affiliates is or may be required to file a Tax Return in such jurisdiction.

(i)     No ▇▇▇▇▇▇▇▇ Contributed Asset is a contract, agreement, plan or arrangement covering any Person that, individually or collectively, could give rise to the payment of any amount that would not be deductible by the Company or any of its Affiliates by reason of section 280G of the Code or be subject to section 4999 of the Code.

(j)     There are no Encumbrances for Taxes upon the ▇▇▇▇▇▇▇▇ Contributed Assets or the Purchased Membership Interest other than Permitted Encumbrances.

(k)     No issue has been raised by written inquiry of any Governmental Authority to ▇▇▇▇▇▇▇▇ or its Affiliates, which would reasonably be expected to affect the Tax treatment of the ▇▇▇▇▇▇▇▇ Contributed Assets, the Business or the Company or its owners in a Post-Closing Period.

(l)     None of the ▇▇▇▇▇▇▇▇ Members, the Company or any of their respective Affiliates have executed or entered into any agreement with, or obtained any consents or clearances from, any Taxing Authority, or have been subject to any ruling guidance specific to any of the Parties, that would be binding on the Company for any taxable period (or portion thereof) ending after the Closing Date.

---

 

(m)     The ▇▇▇▇▇▇▇▇ Members have each owned at least ten percent (10%) of the Membership Interests at all times since the formation of the Company.

(n)     The Company has a zero tax basis in any of the ▇▇▇▇▇▇▇▇ Contributed Assets that is a section 197 intangible.

(o)     All of the liabilities of the Company arose after the transactions contemplated by the ▇▇▇▇▇▇▇▇ Contribution Agreement.

(p)     ▇▇▇▇▇▇▇▇ has owned and will continue to own one hundred percent (100%) of the equity interests of ▇▇▇▇▇▇▇▇ Affiliate immediately before and after the Closing.  ▇▇▇▇▇▇▇▇ does not have any plan or intention to sell, exchange or otherwise dispose of any of the equity interests of ▇▇▇▇▇▇▇▇ Affiliate.

(q)     The Company has made no elections for federal income tax purposes other than those set forth in Schedule 3.7.

Section 3.8     Contracts.

(a)     Set forth in Schedule 3.8 is a complete and correct list, as of the date hereof, of each Contract to which the Company is a party (each, a “Company Contract”).

(b)     Each Company Contract is valid, binding and in full force and effect and enforceable by the Company in accordance with its terms (subject to the Bankruptcy and Equity Exception).  The Company is not in breach or default in any material respect of any Company Contract.  No written notice has been received by the Company or any of the ▇▇▇▇▇▇▇▇ Members of their respective Affiliates alleging that it is in breach or default in any material respect under any Company Contract.  To the Knowledge of ▇▇▇▇▇▇▇▇, no party to any Company Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder or has exercised any termination rights with respect thereto.  The ▇▇▇▇▇▇▇▇ Members and their Affiliates, including the Company, have delivered or made available to GE (to the extent permitted by applicable Law) true, correct and complete copies of all of the Company Contracts, including all amendments, modifications or supplements thereto.

Section 3.9     Claims.  There is no actual or, to the Knowledge of ▇▇▇▇▇▇▇▇, threatened Claim against the Company arising out of the operation of the Business or ownership of any assets of the Company that:  (a) involves a claim of, or an unspecified amount which would reasonably be expected to result in a Liability of, more than [***]; (b) seeks any injunctive relief or the imposition of any restriction on the ability of the Business to compete in any business or with any Person in (or otherwise conduct business in) any geographic area; (c) involves criminal proceedings or a material investigation by a Governmental Authority; or (d) individually or in the aggregate, would be reasonably likely to be material to the Company.  There is no actual or, to the Knowledge of ▇▇▇▇▇▇▇▇, threatened Claim against any of the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates, including the Company, that seeks any legal restraint or prohibition against the transactions contemplated by this Agreement.  None of the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates, including the Company, is a party or subject to or in default under any

---

 

Order of any Governmental Authority or arbitration tribunal applicable to the operation of the Business or any asset of the Company, including any ▇▇▇▇▇▇▇▇ Contributed Asset.

Section 3.10     Compliance with Applicable Laws.  Except as set forth in Schedule 3.10: 

(a)     None of the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates, including the Company, (by virtue of any past or present action, omission to act, Contract to which it is a party or any occurrence or state of facts) has, since January 1, 2012, failed to comply or is failing to comply with any Law, including any Anti-Bribery Law or any Law relating to worker health, industrial hygiene or safety (including product safety, product responsibility, product liability or defective products), or Order of any Governmental Authority in connection with its operation of the Business, except for any such failure to comply that was not, or is not reasonably likely to be, material to the Business or the ▇▇▇▇▇▇▇▇ Members.  None of the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates, including the Company, has, since January 1, 2012, in connection with its operation of the Business received any written or, to the Knowledge of ▇▇▇▇▇▇▇▇, other notice of, been charged with, or received any inquiry concerning, the failure to comply in any material respect with or the potential failure to comply with any applicable Law, including any Anti-Bribery Law.  Since January 1, 2012, none of the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates, including the Company, has made, or been ordered to make, any material payment in respect of any damages, fines, penalties, assessments or settlements to any Governmental Authority related to the Business.

(b)     There is no investigation or Claim by a Governmental Authority pending or, to the Knowledge of ▇▇▇▇▇▇▇▇, threatened against any of the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates, including the Company (or any of their respective officers, directors and employees), in connection with the Business with respect to matters described this Section 3.10.

Section 3.11     Sufficiency of Assets.  Assuming the accuracy of the representations and warranties of GE set forth in Section 4.6, the ▇▇▇▇▇▇▇▇ Contributed Assets, and the services provided to the Company pursuant to the Transaction Documents by ▇▇▇▇▇▇▇▇ and its Affiliates (when combined with the GE Contributed Assets and the services provided to the Company pursuant to the Transaction Documents by GE and its Affiliates) comprise all the properties, personnel (whether employees or secondees), assets and rights necessary for the Company to conduct its business and operations in accordance with the Initial Business Plan.

Section 3.12     Books and Records.  The books of account, minute books and equity interest record books (or their equivalents) of the Company are complete and correct in all material respects.

Section 3.13     Brokerage.  No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon any arrangements made by or on behalf of any of the ▇▇▇▇▇▇▇▇ Members or any of their Affiliates, including the Company.

 

---

 

ARTICLE IV

 

REPRESENTATIONS AND WARRANTIES OF GE

GE represents and warrants to the ▇▇▇▇▇▇▇▇ Members that:

Section 4.1     Organization, Standing and Authority; Execution and Delivery; Enforceability.

(a)      GE is a corporation duly organized, validly existing and in good standing under the laws of the State of New York.  GE has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.  All corporate acts and other proceedings required to be taken by GE to authorize the execution, delivery and performance by GE of this Agreement and for GE to consummate the transactions contemplated hereby have been duly and properly taken.

(b)     This Agreement has been duly executed and delivered by GE.  Assuming that this Agreement has been duly authorized, executed and delivered by each of the ▇▇▇▇▇▇▇▇ Members, this Agreement constitutes a legal, valid and binding obligation of GE, enforceable against GE in accordance with its terms, subject to the Bankruptcy and Equity Exception.

Section 4.2     Consents; Conflicts.

(a)     No Consent of, or Filing with, any Governmental Authority is required to be obtained or made by GE in connection with the execution and delivery by GE of this Agreement, the consummation by GE of the transactions contemplated hereby or the compliance by GE with the terms and conditions hereof.

(b)     The execution and delivery of this Agreement by GE does not and the consummation by GE of the transactions contemplated hereby and compliance by GE with the terms and conditions hereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a benefit under, or result in the creation of any Encumbrances upon any of the properties or assets of GE under, any provision of (a) the certificate of incorporation or by-laws (or the comparable governing instruments) of GE or (b) any Contract to which GE is a party or by which any of its respective properties or assets are bound or (c) any Law applicable to GE or any of its respective properties or assets, other than in the case of clause (b), any such violation, default, termination, cancellation, acceleration, loss or Encumbrance that would not reasonably be expected to prevent or materially impede or delay the ability of GE to perform its obligations under this Agreement.

Section 4.3     Contracts.

(a)     Set forth in Schedule 4.3 is a complete and correct list of each Contract included in the GE Contributed Assets (each, a “GE Contributed Contract”).

---

 

(b)     Each GE Contributed Contract is valid, binding and in full force and effect and enforceable by GE or its Affiliates in accordance with its terms (subject to the Bankruptcy and Equity Exception).  GE and its Affiliates are not in breach or default in any material respect of any GE Contributed Contract.  No written notice has been received by GE or any of its Affiliates alleging that it is in breach or default in any material respect under any GE Contributed Contract.  To the Knowledge of GE, no party to any GE Contributed Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder or has exercised any termination rights with respect thereto.  GE and its Affiliates have delivered or made available to the ▇▇▇▇▇▇▇▇ Members (to the extent permitted by applicable Law) true, correct and complete copies of all of the GE Contributed Contract, including all amendments, modifications or supplements thereto.

Section 4.4     Claims.  There is no actual or, to the Knowledge of GE, threatened Claim against GE or any of its Affiliates that seeks any legal restraint or prohibition against the transactions contemplated by this Agreement.  Neither GE nor any of its Affiliates is a party or subject to or in default under any Order of any Governmental Authority or arbitration tribunal applicable to GE’s or any of its Affiliates’ performance under the GE Contributed Contracts.

Section 4.5     Compliance with Applicable Laws.  Except as set forth in Schedule 4.5:

(a)     Neither GE nor any of its Affiliates (by virtue of any past or present action, omission to act, Contract to which it is a party or any occurrence or state of facts) has, since January 1, 2012, failed to comply or is failing to comply with any Law, including any Anti-Bribery Law or any Law relating to worker health, industrial hygiene or safety (including product safety, product responsibility, product liability or defective products), or Order of any Governmental Authority in connection with its performance under the GE Contributed Contracts, except for any such failure to comply that was not, or is not reasonably likely to be, material to the operation of the Business or GE.  Neither GE nor any of its Affiliates has, since January 1, 2012, in connection with its performance under the GE Contributed Contracts received any written or, to the Knowledge of GE, other notice of, been charged with, or received any inquiry concerning, the failure to comply in any material respect with or the potential failure to comply with any applicable Law, including any Anti-Bribery Law.  Since January 1, 2012, neither GE nor any of its Affiliates has made, or been ordered to make, any material payment in respect of any damages, fines, penalties, assessments or settlements to any Governmental Authority related to its performance under the GE Contributed Contracts.

(b)     There is no investigation or Claim by a Governmental Authority pending or, to the Knowledge of GE, threatened against GE or any of its Affiliates (or any of their respective officers, directors and employees) in connection with GE’s or any of its Affiliates’ performance under the GE Contributed Contracts with respect to matters described this Section 4.5.

Section 4.6     Sufficiency of Assets.  Assuming the accuracy of the representations and warranties of ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Affiliate set forth in Section 3.11, the GE Contributed Assets, and the services provided to the Company pursuant to the Transaction Documents by GE and its Affiliates (when combined with the ▇▇▇▇▇▇▇▇ Contributed Assets and the services provided to the Company pursuant to the Transaction Documents by ▇▇▇▇▇▇▇▇ and its

---

 

Affiliates) comprise all the properties, personnel (whether employees or secondees), assets and rights necessary for the Company to conduct its business and operations in accordance with the Initial Business Plan.

Section 4.7     Brokerage.  No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon any arrangements made by or on behalf of GE or any of its Affiliates.

 

ARTICLE V

 

TAX MATTERS

Section 5.1     Tax Covenants.

(a)     The Company shall have a valid election in effect under Section 754 of the Code for the taxable year in which the Closing Date occurs.

(b)     None of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Affiliate or any of their Affiliates will take a position inconsistent with any of the Tax representations or covenants in this Agreement (which treatment GE and the ▇▇▇▇▇▇▇▇ Members acknowledge is consistent with current Tax provisions of applicable Law) in respect of the transactions contemplated by this Agreement unless the parties are otherwise required to take such a position as a result of a change in the Tax provisions of applicable Law or any court or regulatory interpretation thereof binding on the parties.

(c)     Unless GE grants its prior written consent, which consent shall not be unreasonably withheld, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Affiliate will each continue to own at least ten percent (10%) of the Membership Interests at all times that GE or any of its Affiliates holds any Membership Interests in the Company.

(d)     Unless GE grants its prior written consent, which consent shall not be unreasonably withheld, (i) ▇▇▇▇▇▇▇▇ will properly be treated as a corporation for U.S. federal (an all applicable state and local) income tax purposes and (ii) ▇▇▇▇▇▇▇▇ Affiliate will continue to have a valid and timely election in place to be properly treated as an association taxable as a corporation pursuant to Treasury Regulations Section 301.7701-3(c) for U.S. federal (and all applicable state and local) income tax purposes.

(e)     ▇▇▇▇▇▇▇▇ and its Affiliates shall, at their own expense, prepare or cause to be prepared and file or cause to be filed, all income Tax Returns required to be filed with respect to the Company for all Pre-Closing Periods (“Pre-Closing Income Tax Returns”).  All such Tax Returns shall be prepared in accordance with the past practice of the Company unless otherwise required by applicable Law. If GE, its Affiliates or the Company would reasonably be expected to be affected in any Post-Closing Period by the positions taken on such Pre-Closing Income Tax Return, ▇▇▇▇▇▇▇▇ and its Affiliates shall permit GE to review and comment on such Pre-

---

 

Closing Income Tax Return described in this sentence prior to the filing thereof and shall consider in good faith GE’s timely comments.

(f)     The Company shall prepare and file all Tax Returns of the Company other than Pre-Closing Income Tax Returns. All such Tax Returns relating to any Pre-Closing Period (including Tax Returns with respect to a Straddle Period) shall be prepared in accordance with the past practice of the Company unless otherwise required by applicable Law. 

(g)     Without the prior written consent of ▇▇▇▇▇▇▇▇, which consent will not be unreasonably withheld, conditioned or delayed, the Company shall not, and shall not permit any of its Affiliates to, amend any previously-filed Tax Return of the Company, file any Tax Return for a Pre-Closing Period in a jurisdiction in which the Company has not previously filed Tax Returns, enter into any voluntary compliance or disclosure agreement or arrangement relating to Taxes, or make any other similar voluntary contact with a Taxing Authority with respect to any Pre-Closing Period.

(h)     Provided that the related Taxes either (i) have been paid by the Company, ▇▇▇▇▇▇▇▇ or its Affiliates on or prior to the Closing Date or (ii) have resulted in a claim for indemnification pursuant to ARTICLE VI, any refunds of Taxes or credits for overpayment of Taxes that are realized by GE, its Affiliates, or Company, net of any reasonable cost attributable to the obtaining and receipt of such refund or credit, shall be for the account of ▇▇▇▇▇▇▇▇, and GE, its Affiliates, or Company, as the case may be, will deliver and pay over to ▇▇▇▇▇▇▇▇ any such refund or the amount of any such credit within ten (10) business days after receipt.

Section 5.2     Transfer Taxes.  All Transfer Taxes arising by reason of the transactions contemplated by the GE Contribution Agreement shall be borne one hundred percent (100%) by GE. All Transfer Taxes arising by reason of the transactions contemplated by the ▇▇▇▇▇▇▇▇ Contribution Agreement and the contribution of the 10% Membership Interest to ▇▇▇▇▇▇▇▇ Affiliate shall be borne one hundred percent (100%) by the ▇▇▇▇▇▇▇▇ Members. All Transfer Taxes arising as a result of the transactions contemplated by this Agreement shall be borne fifty percent (50%) by the ▇▇▇▇▇▇▇▇ Members and fifty percent (50%) by GE, regardless of which Party is responsible for the payment of such Transfer Taxes.  Any necessary Tax Return filings with respect to Transfer Taxes shall be the obligation and responsibility of the Party required by applicable Law to file such Tax Returns, provided that the other Parties shall cooperate in the filing of any such Tax Returns and shall reimburse the filing Party of its share of Transfer Taxes pursuant to this Section 5.2.

Section 5.3     Allocation of Basis Adjustment. 

(a)     Any adjustment to be made to the tax basis of the assets of the Company pursuant to Section 743 of the Code shall be allocated among such assets in accordance with Section 755 of the Code and the Treasury Regulations promulgated thereunder.  Not later than ninety (90) days following the Closing Date, GE and the ▇▇▇▇▇▇▇▇ Members shall cause the Company to prepare and deliver to GE and ▇▇▇▇▇▇▇▇ a schedule (the “Proposed Basis Adjustment Statement”) setting forth the computation of the aggregate amount of such adjustment and the allocation of such adjustment among the Company’s assets for GE and

---

 

▇▇▇▇▇▇▇▇’▇ review and approval.  If, within ten (10) days following delivery of the Proposed Basis Adjustment Statement, GE or ▇▇▇▇▇▇▇▇ notifies the Company in writing of its disagreement with the Proposed Basis Adjustment Statement, GE and ▇▇▇▇▇▇▇▇ shall endeavor to resolve such disagreement, and if they are unable to do so such disagreement shall be submitted for resolution to an independent appraiser selected by GE and reasonably acceptable to ▇▇▇▇▇▇▇▇.  The decision of such independent appraiser shall be final and binding on the Parties and its fees shall be split evenly between GE and ▇▇▇▇▇▇▇▇.  If neither GE nor ▇▇▇▇▇▇▇▇ notify the Company in writing of their disagreement with the Proposed Basis Adjustment Statement within ten (10) days following the delivery of the Proposed Basis Adjustment Statement, the Proposed Basis Adjustment Statement shall be final.  The Proposed Basis Adjustment Statement, as finalized in accordance with the foregoing, shall constitute the “Initial Basis Adjustment Statement.”  GE and the ▇▇▇▇▇▇▇▇ Members shall cause the Company to prepare and deliver to GE and ▇▇▇▇▇▇▇▇ from time to time revised copies of the Initial Basis Adjustment Statement (the “Revised Basis Adjustment Statements”) to reflect any subsequent adjustments to the Purchase Price in a manner that is consistent with Section 755 of the Code and the Treasury Regulations promulgated thereunder in accordance with the foregoing procedures.  GE and the ▇▇▇▇▇▇▇▇ Members shall each file all Tax Returns consistent with the Initial Basis Adjustment Statement and any Revised Basis Adjustment Statements.

(b)     Within ten (10) days following the finalization of the Initial Basis Adjustment Statement, GE and the ▇▇▇▇▇▇▇▇ Members shall cause the Company to prepare and deliver to GE and ▇▇▇▇▇▇▇▇ a schedule setting forth the projected imputed interest deductions available to GE from the ▇▇▇▇▇▇▇▇ Annual Payments and the amortization deductions attributable to the amounts allocated to the Section 197 intangible assets (the “Assumed Deductions”) on the Initial Basis Adjustment Statement.  The Assumed Deductions shall be determined in accordance with Sections 483, 743 and 197 of the Code and the Treasury Regulations promulgated thereunder and shall assume that any amounts allocated to the Section 197 intangible assets are fully amortizable over fifteen (15) years.

 

ARTICLE VI

 

INDEMNIFICATION

Section 6.1     Survival.  The representations and warranties set forth in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing until the date that is [***] from the Closing Date, [***] (the applicable period with respect to each representation and warranty set forth in this Agreement, the “Survival Period”).  No action may be brought or claim may be made with respect to any breach or inaccuracy of any representation or warranty pursuant to this Agreement unless a notice that complies with Section 7.1 has been delivered pursuant to such Section 7.1 prior to the expiration of the applicable Survival Period; provided,  however, that upon the giving of such notice, notwithstanding any other provision of this Agreement, the applicable Survival Period shall continue beyond the time at which it would otherwise terminate until such action is resolved.

Section 6.2     Indemnification. 

---

 

(a)     Subject to the other provisions of this ARTICLE VI, the ▇▇▇▇▇▇▇▇ Members hereby agree, to the fullest extent permitted by applicable Law, jointly and severally to indemnify, defend and hold harmless GE, its Affiliates and their respective officers, directors and employees (collectively, the “GE Indemnified Persons”) from, against and in respect of any Damages incurred or suffered by the GE Indemnified Persons arising out of, in connection with or relating to:

(i)     any breach or inaccuracy of any of the representations and warranties of the ▇▇▇▇▇▇▇▇ Members contained in ARTICLE III; or

(ii)     any failure of the ▇▇▇▇▇▇▇▇ Members to perform any of their covenants or obligations contained in this Agreement;

provided,  however, that (A) the ▇▇▇▇▇▇▇▇ Members’ indemnification obligations contained in clause (i) above shall not apply to any claim for Damages until the aggregate amount of all claims for Damages under clause (i) above exceeds [***], (B) the ▇▇▇▇▇▇▇▇ Members’ indemnification obligations contained in clause (i) above shall not apply to any portion of a claim for Damages to the extent the aggregate amount of all claims for Damages under clause (i) above exceeds $[***] (the “Cap”), [***] and (C) the ▇▇▇▇▇▇▇▇ Members’ indemnification obligations contained in clause (i) above as they relate to the ▇▇▇▇▇▇▇▇ Specified Representations or a representation or warranty contained in Section 3.7 and the ▇▇▇▇▇▇▇▇ Members’ indemnification obligations under Section 6.4(a)(i), (ii), (iii) and (v) shall not apply to any portion of a claim for Damages to the extent the aggregate amount of all claims for Damages with respect to such representations and warranties and items set forth in Section 6.4(a)(i), (ii), (iii) and (v)  exceeds [***].

(b)     Subject to the other provisions of this ARTICLE IV, GE hereby agrees, to the fullest extent permitted by applicable Law, to indemnify defend and hold harmless the ▇▇▇▇▇▇▇▇ Members, their Affiliates (other than the Company and its Affiliates) and their respective officers, directors and employees (the “▇▇▇▇▇▇▇▇ Indemnified Persons”) from, against and in respect of any Damages incurred or suffered by the ▇▇▇▇▇▇▇▇ Indemnified Persons arising out of, in connection with or relating to:

(i)     any breach or inaccuracy of any of the representations and warranties of GE contained in ARTICLE IV; or

(ii)     any failure of GE to perform any of its covenants or obligations contained in this Agreement;

provided,  however, that (A) GE’s indemnification obligations contained in clause (i) above shall not apply to any claim for Damages until the aggregate amount of all claims for Damages under clause (i) above exceeds [***] , (B) GE’s indemnification obligations contained in clause (i) above shall not apply to any portion of a claim for Damages to the extent the aggregate amount of all claims for Damages under clause (i) above exceeds the Cap, [***] and (C) GE’s indemnification obligations contained in clause (i) as they relate to the GE Specified

---

 

Representations shall not apply to any portion of a claim for Damages to the extent the aggregate amount of all claims for Damages with respect to such representations and warranties [***].

(c)     For purposes of Section 6.2(a) and Section 6.2(b), a breach or inaccuracy of a representation or warranty contained in this Agreement shall be deemed to exist either if such representation or warranty is actually inaccurate or breached or, if such representation or warranty would have been breached or been inaccurate if such representation or warranty had not contained any limitation or qualification as to materiality, it being the intention of the Parties that the GE Indemnified Persons shall, subject to the terms and conditions hereof, be indemnified and held harmless from and against any and all Damages suffered or incurred by any of them arising out of, based upon or relating to the breach or inaccuracy of any such representation or warranty, determined in each case without regard to any qualification as to materiality set forth with respect thereto.

(d)     The provisions of this ARTICLE VI shall constitute the sole and exclusive remedy following the Closing of the Parties for Damages relating to breaches of the representations, warranties, covenants or obligations contained in this Agreement; provided,  however, this exclusive remedy for Damages does not preclude a Party from bringing an action for specific performance pursuant to Section 7.13.

Section 6.3     Indemnification Procedures.

(a)     Any Person against whom indemnification is sought pursuant to the provisions of Section 6.2 shall be referred to as an “Indemnifying Party,” and any Person seeking to be indemnified pursuant to the provisions of Section 6.2 shall be referred to as an “Indemnified Party.”

(b)     If an Indemnified Party is notified of a Claim of a third party (each such Claim, a “Third Party Claim”) which may give rise to a claim for indemnification against an Indemnifying Party under Section 6.2, then:

(i)     The Indemnified Party shall promptly notify such Indemnifying Party thereof in writing, which notice shall describe in reasonable detail the nature of the Third Party Claim, an estimate of the amount of Damages attributable to the Third Party Claim to the extent feasible and the basis of the Indemnified Party’s request for indemnification under Section 6.2;  provided,  however, that any failure to give such prompt notice shall not relieve an Indemnifying Party of any of its obligations under Section 6.2, except to the extent that such failure prejudices or impairs, in any material respect, any of the rights of such Indemnifying Party.

(ii)     Subject to the provisions of this Section 6.3, the Indemnifying Party shall have the right, at its sole option and expense, to be represented by counsel of its choice, which must be reasonably satisfactory to the Indemnified Party, and to act as the Person that defends against, negotiates, settles or otherwise deals with any Third Party Claim which relates to any Damages indemnified against by it under Section 6.2 (each Person, the “Defending Party”); provided,  however, that the Indemnifying Party shall not have the right to be the

---

 

Defending Party with respect to: (A) any Third Party Claim that seeks an order, injunction or other equitable relief against any Indemnified Party or any of its Affiliates; (B) any Third Party Claim in which the Indemnified Party reasonably determines with advice of counsel that there may be one or more material legal defenses available to it that are different from or additional to those available to the Indemnifying Party or that a conflict of interest between the Indemnifying Party and the Indemnified Party may exist in respect of such Third Party Claim; and (C) any Third Party Claim which involves a Claim by a Governmental Authority, would reasonably be expected to result in material reputational harm to, or impose criminal liability on, any Indemnified Party or its Affiliates or would reasonably be expected to have any material continuing effect on any Indemnified Party, its Affiliates or their respective businesses or assets.  If the Indemnifying Party elects to act as the Defending Party, it shall within thirty (30) days of the Indemnified Party’s written notice of the assertion of the Third Party Claim (or sooner, if the nature of the Third Party Claim so requires) notify the Indemnified Party of its intent to do so; provided that the Indemnifying Party must conduct its defense of the Third Party Claim actively and diligently to preserve its right to act as the Defending Party.  If the Indemnifying Party elects not to or does not have the right to act as the Defending Party, fails to notify the Indemnified Party of its election as herein provided or contests its obligation to indemnify the Indemnified Party for such Damages under Section 6.2, the Indemnified Party may act as the Defending Party.  If the Indemnified Party acts as the Defending Party with respect to a given Third Party Claim, then the Indemnifying Party shall reimburse the Indemnified Party for the reasonable out-of-pocket expenses of defending such Third Party Claim upon submission of copies of the invoices therefor.  If the Indemnifying Party acts as the Defending Party with respect to a given Third Party Claim, the Indemnified Party may participate, at its own expense, in the defense of such Third Party Claim.  The Parties agree to reasonably cooperate with each other and to provide reasonable access to each other Party to such documents and information as may be reasonably requested and subject to attorney-client privilege, attorney work product, third party confidentiality and similar obligations in connection with the defense, negotiation or settlement of any such Third Party Claim.

(iii)     The Defending Party will not admit any Liability with respect to, or settle, compromise or discharge, any Third Party Claim for which indemnity is sought hereunder without the prior written consent of the other Parties (such consent not to be unreasonably withheld or delayed); provided that if the Indemnifying Party is the Defending Party and a settlement offer solely for money damages is made by the applicable third party claimant, and the Indemnifying Party notifies the Indemnified Party in writing of the Indemnifying Party’s willingness to accept the settlement offer and, subject to the applicable limitations under Section 6.2, pay the amount called for by such settlement offer, and the Indemnified Party declines to accept such settlement offer, the Indemnified Party may continue to contest such Third Party Claim at its sole cost and expense, free of any participation by the Indemnifying Party, and the amount of any ultimate liability with respect to such Third Party Claim that the Indemnifying Party shall be obligated to pay under Section 6.2 shall be limited to the lesser of (A) the amount of the settlement offer that the Indemnified Party declined to accept plus the Damages incurred by the Indemnified Party relating to such Third Party Claim through the date of its rejection of the settlement offer and (B) the aggregate Damages of the Indemnified Party with respect to such Third Party Claim.

---

 

(c)     Notwithstanding anything in this Section 6.3 to the contrary, none of the ▇▇▇▇▇▇▇▇ Members, their Affiliates or the Company shall have the right to defend, negotiate, settle or compromise any Third Party Claim to the extent that such Third Party Claim is a claim by a taxing authority in respect of a Tax of GE or its Affiliates.  GE shall keep the ▇▇▇▇▇▇▇▇ Members reasonably informed of the status of any such Third Party Claim and GE shall not settle any such Third Party Claim without the prior written consent of ▇▇▇▇▇▇▇▇, such consent not to be unreasonably withheld, conditioned or delayed.  For the avoidance of doubt, the ▇▇▇▇▇▇▇▇ Members and their Affiliates shall have the right to defend, negotiate, settle or compromise any Third Party Claim that is a claim by a Taxing Authority in respect of a Tax of the ▇▇▇▇▇▇▇▇ Members or their Affiliates

(d)     After any final decision, judgment or award shall have been rendered by a Governmental Authority of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have arrived at a mutually binding agreement, in each case with respect to any Third Party Claim hereunder, the Indemnified Party shall forward to the Indemnifying Party notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect to such matter and the Indemnifying Party shall pay all of such sums to the Indemnified Party by wire transfer of immediately available funds within five (5) Business Days after the date of such notice.

Section 6.4     Tax Indemnification. 

(a)     In addition to the indemnification provided for in Section 6.2, but without duplication for any Damages claimed thereunder, from and after the Closing Date, the ▇▇▇▇▇▇▇▇ Members hereby agree, to the fullest extent permitted by applicable Law, jointly and severally to indemnify, defend and hold harmless the GE Indemnified Persons from, against and in respect of any Damages incurred or suffered by the GE Indemnified Persons arising out of, in connection with or relating to (i) Taxes of ▇▇▇▇▇▇▇▇, any ▇▇▇▇▇▇▇▇ Member or any of their Affiliates, to the extent unrelated to the ▇▇▇▇▇▇▇▇ Contributed Assets, the Business or the Company, (ii) any Taxes of or relating to the Business, the Company or any of the ▇▇▇▇▇▇▇▇ Contributed Assets arising on or prior to the Closing Date (except to the extent such Taxes result from or arise out of actions taken on the Closing Date after the Closing outside the ordinary course of business) or attributable to the Pre-Closing Period portion of any Straddle Period, (iii) any failure of the ▇▇▇▇▇▇▇▇ Members to pay their share of Transfer Taxes pursuant to Section 5.1, (iv) the Deduction Shortfall Amount, and (v) Taxes attributable to taxable income, if any, resulting from any indemnification payments made by the ▇▇▇▇▇▇▇▇ Members to the GE Indemnified Party pursuant to this ARTICLE VI.

(b)     The “Deduction Shortfall Amount” means an amount to be paid by the ▇▇▇▇▇▇▇▇ Members to GE in an amount necessary to enable the GE After-Tax Return to equal the ▇▇▇▇▇▇▇▇ After-Tax Return.  For these purposes:

(i)     The “GE After-Tax Return” means the aggregate amount of (A) 37% of the cumulative imputed interest deductions allowed or projected to be allowed to GE from the ▇▇▇▇▇▇▇▇ Annual Payments, plus (B) 37% of the actual amortization deductions allowed or

---

 

projected to be allowed to GE attributable to its payment of the Purchase Price and the ▇▇▇▇▇▇▇▇ Annual Payments (after taking into account any adjustments to amortizable basis attributable to audits or payments of the Deduction Shortfall Amount), plus (C) the cumulative amount of Deduction Shortfall Amounts received or projected to be received by GE, minus (D) the cumulative amount of the ▇▇▇▇▇▇▇▇ Annual Payments.

(ii)     The “▇▇▇▇▇▇▇▇ After-Tax Return” means 63% of the aggregate amount of (A) the cumulative amount of the ▇▇▇▇▇▇▇▇ Annual Payments, minus (B) the cumulative amount of Deduction Shortfall Amounts paid or projected to be paid to GE. 

(iii)     Any reduction of basis arising (A) because such basis was used to determine gain or loss in a sale or disposition of the Section 197 intangibles held by the Company (B) from a subsequent sale or transfer of the Purchased Membership Interests or (C) as a result of the purchase of Membership Interests by GE pursuant to the ▇▇▇▇▇▇▇▇ Sale Call Option or Termination Event Call Option (as such terms are defined in the Initial Operating Agreement) shall be ignored as if such reduction of basis had not occurred for purposes of determining the Deduction Shortfall Amount, including the GE After-Tax Return and the ▇▇▇▇▇▇▇▇ After-Tax Return.

(iv)     The ▇▇▇▇▇▇▇▇ After-Tax Return and GE After-Tax Return shall take into account (A) any actual inability of the ▇▇▇▇▇▇▇▇ Members to utilize a capital loss generated by any payment made pursuant to Section 6.4(a)(iv) for income Tax purposes (after taking into account any applicable mitigating provisions such as Section 1341 of the Code), assuming, for these purposes, that the ▇▇▇▇▇▇▇▇ Members have not elected out of installment sale treatment and (B) any actual requirement that any payment pursuant to Section 6.4(a)(iv) be included in income instead of treated as an adjustment to the Purchase Price as contemplated by Section 6.5(c).

(c)     It is expected that the Deduction Shortfall Amount will be calculated using principles set forth in Section 6.4(b).  Any amounts payable pursuant to Section 6.4(a)(iv), shall be paid not later than 10 days after the date on which the Company issues GE a Schedule K-1 reflecting the amortization used to calculate the Deduction Shortfall Amount for such year, or, if the Deduction Shortfall Amount is with respect to a disallowance of amortization for a prior taxable year, no later than 10 days following the date on which disallowance of the amortization for such prior taxable year becomes final.  The Deduction Shortfall Amount payable under Section 6.4(a)(iv) shall in no event exceed the aggregate amount of ▇▇▇▇▇▇▇▇ Annual Payments.  Furthermore, any interest and/or penalties imposed by a Taxing Authority related to any disallowance or reduction of the Assumed Deductions shall be shared fifty percent (50%) by ▇▇▇▇▇▇▇▇, which amount may be in excess of the total ▇▇▇▇▇▇▇▇ Annual Payments. 

(d)     Notwithstanding anything to the contrary in this Agreement (including, but not limited to, Section 6.2), Section 6.4(a)(iv) shall be the sole and exclusive remedy following the Closing of the GE Indemnified Persons for Damages resulting from or related to differences (if any) between the Assumed Deductions and the actual amortization and interest deductions allowed to GE attributable to payment of the Purchase Price, the ▇▇▇▇▇▇▇▇ Annual Payments and any payment by the ▇▇▇▇▇▇▇▇ Members pursuant to Section 6.4(a)(iv), it being understood

---

 

that “Damages” for which the GE Indemnified Persons are indemnified pursuant to Section 6.4(a)(iv) shall not include any costs or other expenses incurred by the GE Indemnified Persons (other than, for the avoidance of doubt, the portion of certain interest and penalties described in Section 6.4(c)) provided, however, that the limitations of this Section 6.4(d) shall not apply to the extent Damages arise from a breach of Section 3.7(a), (b), (m), or (p) or Section 5.1.

(e)     If there has been any payment by the ▇▇▇▇▇▇▇▇ Members to GE pursuant to Section 6.4(a)(iv) for any taxable year (the amount of such payment, the “Original Deduction Shortfall Payment”) and, with respect to such taxable year it is later determined that the actual amortization deductions allocable to GE would result in a revised Deduction Shortfall Amount (which may be zero) for such taxable year (a “Revised Deduction Shortfall Payment”) that is less than the Original Deduction Shortfall Payment for such taxable year, then GE shall promptly pay to ▇▇▇▇▇▇▇▇ a payment necessary to enable the ▇▇▇▇▇▇▇▇ After-Tax Return to equal the GE After-Tax Return.

Section 6.5     Calculation of Damages; Right to Setoff; Tax Treatment of Indemnification Payments.

(a)     The amount of any Damages for which indemnification is provided under this ARTICLE VI shall be net of any amounts actually recovered by the Indemnified Party under insurance policies with respect to such Damages (net of expenses incurred in connection with such recovery).

(b)     Notwithstanding anything to the contrary contained herein, GE, at its election and in its sole discretion, shall have the right to withhold, setoff against or reduce any amounts payable to any ▇▇▇▇▇▇▇▇ Member under this Agreement, including any ▇▇▇▇▇▇▇▇ Annual Payment Amount payable under Section 2.3, by the amount of any claim for indemnification or payment of damages or any other amount to which any GE Indemnified Person may be entitled under this Agreement.

(c)     The Parties agree to treat any indemnification payments made pursuant to this ARTICLE VI as adjustments to the Purchase Price (which treatment GE and the ▇▇▇▇▇▇▇▇ Members acknowledge is consistent with current Tax provisions of applicable Law) unless the Parties are required to treat such payments otherwise as a result of a change in the Tax provisions of applicable Law or any court or regulatory interpretation thereof binding on the Parties.

 

ARTICLE VII

 

MISCELLANEOUS

Section 7.1     Notices.  All notices and other communications pursuant to this Agreement shall be in writing and shall be deemed given if delivered personally, telecopied, sent by nationally-recognized overnight courier or mailed by U.S. registered or certified mail (return receipt requested), postage prepaid, to the Parties at the addresses set forth below or to such other address as the Party to whom notice is to be given may have furnished to the other Parties in writing in accordance herewith.  Any such notice or communication shall be deemed to have

---

 

been delivered and received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of telecopier delivery, on the date sent if confirmation of receipt is received and such notice is also promptly mailed by registered or certified mail (return receipt requested), (c) in the case of a nationally-recognized overnight courier in circumstances under which such courier guarantees next Business Day delivery, on the next Business Day after the date when sent and (d) in the case of mailing, on the fifth Business Day following that on which the piece of mail containing such communication is posted to the address provided herein or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.  Notices to Parties pursuant to this Agreement shall be given to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 7.1):

(a)       to Woodward or Woodward Affiliate:

 

▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:  President, Aircraft Turbine Systems

General Counsel

with a copy to (which shall not constitute notice to Woodward or ▇▇▇▇▇▇▇▇ Affiliate):

▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:  ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇

▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇

Facsimile:  (▇▇▇) ▇▇▇-▇▇▇▇

 

(b)       to GE:

 

General Electric Corporation

c/o GE Aviation

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇

[***]

 

with a copy to (which shall not constitute notice to GE):

 

Sidley Austin LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇  ▇▇▇▇▇
Attention:  ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile:  (▇▇▇) ▇▇▇-▇▇▇▇

---

 

Section 7.2     Amendments; Waivers.

(a)     Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed in the case of an amendment, by all Parties to such agreement, or in the case of a waiver, by the Party or Parties against whom the waiver is to be effective.

(b)     No waiver by a Party of any default, misrepresentation or breach of a warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach of a warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent occurrence.  No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof 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 or remedies provided under Law.

Section 7.3     Expenses.  Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and in closing and carrying out the transactions contemplated hereby and thereby shall be paid by the Party incurring such cost or expense.

Section 7.4     Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, personal representatives and permitted assigns.  No Party may transfer or assign either this Agreement or any of its rights, interests or obligations hereunder, whether directly or indirectly, by operation of law, merger or otherwise, without the prior written approval of the other Parties.  No such transfer or assignment shall relieve the transferring or assigning Party of its obligations hereunder if such transferee or assignee does not perform such obligations.

Section 7.5     Governing Law.  This Agreement shall be construed in accordance with and this Agreement and any disputes or controversies related hereto shall be governed by the internal laws of the State of Delaware without giving effect to any conflicts of laws principles thereof that would apply the laws of any other jurisdiction.

Section 7.6     Counterparts; Effectiveness.  This Agreement may be signed in any number of counterparts and the signatures delivered by telecopy or email attachment, each of which shall be an original, with the same effect as if the signatures were upon the same instrument and delivered in person.  This Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Parties.

Section 7.7     Entire Agreement.  This Agreement (including the Schedules and Annexes referred to herein), the other Transaction Documents and the Confidentiality Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and negotiations, both written and oral, express or implied, between and among the Parties with respect to the subject matter of this Agreement.  No representation, warranty, promise, inducement or statement of intention has

---

 

been made by any Party that is not embodied in this Agreement or such other documents, and no Party shall be bound by, or liable for, any alleged representation, warranty, promise, inducement or statement of intention not embodied herein or therein.

Section 7.8     Captions.  The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.

Section 7.9     Severability.  If any provision of this Agreement, or the application thereof to any Person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other Persons, places and circumstances shall remain in full force and effect so long as, after excluding the portion deemed to be unenforceable, the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party.  Upon such determination that any term or other provision is invalid, unenforceable or void, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated to the greatest extent practicable in substantially the same manner as originally set forth at the later of the date this Agreement was executed or last amended.

Section 7.10     Consent to Jurisdiction.  Any dispute, controversy or claim (whether sounding in contract, tort or otherwise) arising out of or relating to this Agreement, including the meaning of its provisions, or the proper performance of any of its terms by any Party, or its breach, termination or invalidity, shall be subject to the exclusive jurisdiction of the courts of the State of Delaware sitting in the City of Wilmington or of the Federal courts sitting therein.  Each of the Parties hereby consents and submits to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such Proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection which it may now or hereafter have to the laying of the venue of any such Proceeding in any such court or that any such Proceeding which is brought in any such court has been brought in an inconvenient forum.  Process in any such Proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court.

Section 7.11     Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (c) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (d) EACH SUCH

---

 

PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.11.

Section 7.12     Third Party Beneficiaries.  Except as otherwise expressly provided in this Agreement, no provision of this Agreement shall create any third party beneficiary rights in any other Person, including any employee or former employee of ▇▇▇▇▇▇▇▇ or GE or any of their respective Affiliates (including any beneficiary or dependent thereof).

Section 7.13     Specific Performance.  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 shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement and, in any action for specific performance, each Party waives the defense of adequacy of a remedy at law and waives any requirement for the securing or posting of any bond in connection with such remedy, this being in addition to any other remedy to which they are entitled at law or in equity (subject to the limitations set forth in this Agreement).  The Parties further agree that by seeking the remedies provided for in this Section 7.13, a Party shall not in any respect waive its right to seek any other form of relief that may be available to a Party under this Agreement (including monetary damages) for breach of any of the provisions of this Agreement.

Section 7.14     No Presumption Against Drafting Party.  The Parties acknowledge that each of the Parties has been represented by counsel in connection with the negotiation and execution of this Agreement.  Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting Party has no application and is expressly waived.

Section 7.15     Further Assurances.  Each Party shall execute and deliver all such further and additional instruments and agreements and shall take such further and additional actions, as may be reasonably necessary or desirable to evidence or carry out the provisions of this Agreement or to consummate the transactions contemplated hereby.

 

[The remainder of this page is left blank intentionally.]

 

 

---

 

IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first above written.

 

 

 

 

 

 

---

 

ANNEX A

 

PURCHASED MEMBERSHIP INTEREST AND PERCENTAGE INTERESTS

 

 

 

 

---

 

ANNEX B

 

FINANCIAL INFORMATION

 

 

 

 

 

 

 

 

 

 

---

 

 

 

 

 

 

 

 

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

[________________________]

by and among

▇▇▇▇▇▇▇▇, INC.,

[▇▇▇▇▇▇▇▇ AFFILIATE]

and

GENERAL ELECTRIC COMPANY

dated as of [__________]

 

 

 

 

 

 

 

 

---

 

TABLE OF CONTENTS

 

Page

 

 

-i-

---

 

 

-ii-

---

 

-iii-

---

 

 

 

-iv-