EXHIBIT 3
SHAREHOLDER'S AGREEMENT
BY AND BETWEEN
ABB TRANSPORTATION PARTICIPATIONS B.V.
AND
FINMECCANICA S.P.A.
DATED AS OF OCTOBER 14, 1998
TABLE OF CONTENTS
PAGE
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Section 1. Certain Definitions.......................................... 1
Section 2. Tender....................................................... 2
Section 3. Voting....................................................... 2
Section 4. Restrictions During the Voting Period........................ 2
Section 5. Additional Shares............................................ 3
Section 6. Covenants of Purchaser....................................... 3
Section 7. Representations and Warranties of the Shareholder............ 4
Section 8. Representations and Warranties of Purchaser.................. 5
Section 9. Confidentiality.............................................. 6
Section 10. Further Assurances........................................... 6
Section 11. Expiration................................................... 6
Section 12. Survival..................................................... 7
Section 13. Miscellaneous................................................ 7
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SHAREHOLDER'S AGREEMENT
This SHAREHOLDER'S AGREEMENT is made and entered into as of October 14, 1998
(this "Agreement"), by and between ABB Transportation Participations B.V., a
corporation organized under the laws of The Netherlands with its statutory
seat in Amsterdam ("Purchaser"), and Finmeccanica S.p.A., a corporation
organized under the laws of Italy with its statutory seat in Rome (the
"Shareholder").
WHEREAS, concurrently herewith, Purchaser and Elsag ▇▇▇▇▇▇ Process
Automation N.V., a corporation organized under the laws of the Netherlands
with its statutory seat in Amsterdam (the "Company"), are entering into an
acquisition agreement (the "Acquisition Agreement"), pursuant to which
Purchaser has agreed, among other things, to commence a cash tender offer (the
"Offer") to purchase all of the issued and outstanding common shares, par
value NLG 1.00 per share, of the Company (the "Company Shares"), and all of
the issued and outstanding 5 1/2% Convertible Trust Originated Preferred
Securities convertible into Company Shares and guaranteed by the Company (the
"TOPrS");
WHEREAS, as of the date hereof, the Shareholder, directly and indirectly
through subsidiaries, is the record and beneficial owner of, and has the sole
right to vote and dispose of, 17,813,527 Company Shares and 1,600,000 TOPrS;
WHEREAS, as an inducement and a condition to entering into the Acquisition
Agreement and incurring the obligations set forth therein, including the
Offer, Purchaser has required that the Shareholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Certain Definitions. Capitalized terms used and not defined
herein shall have the respective meanings set forth in the Acquisition
Agreement. In addition, the following terms shall, when used in this
Agreement, have the following respective meanings:
(a) "Affiliate" shall have the meaning assigned to such term in Section
12(b)-2 of the Exchange Act; provided that with respect to the Shareholder,
"Affiliate" shall not include the Company or any of its Subsidiaries.
(b) "Beneficially Owned" or "Beneficial Ownership" with respect to any
securities shall mean having beneficial ownership of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a "group" for purposes of Section 13d-3 of the Exchange Act.
(c) "Option Agreement" shall mean the option agreement dated as of
November 15, 1993 between the Shareholder and the Company giving the
Shareholder an option under certain conditions to purchase all of the
Priority Shares.
(d) "Person" shall mean a natural person, corporation, limited liability
company, partnership, association, trust, unincorporated organization,
union or other employee group, Governmental Entity, or other entity or
group (as defined in the Exchange Act).
(e) "Priority Shares" shall mean the priority shares, par value NLG 1.00
per share, of the Company, authorized under Article 3 of the Company's
articles of association.
(f) "Transfer" shall mean, with respect to a security or option, the
sale, transfer, pledge, hypothecation, encumbrance, assignment or
disposition of or granting of rights with respect to such security or
option or the Beneficial Ownership thereof, the offer to make such a sale,
transfer or other disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing.
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Section 2. Tender. The Shareholder hereby agrees to validly and irrevocably
tender in accordance with the terms hereof (or to cause the record owner
thereof to so validly tender), pursuant to Rule 14d-2 under the Exchange Act,
and in accordance with the terms of the Offer, not later than, (i) in the case
of Company Shares and TOPrS owned by the Shareholder on the date hereof (such
securities, the "Existing Securities"), the fifth Business Day following the
commencement of the Offer and (ii) in the case of Company Shares and TOPrS
acquired after the date hereof and prior to the termination of this Agreement,
whether upon the exercise of options, warrants or rights, the conversion or
exchange of convertible or exchangeable securities, or by means of purchase,
dividend distribution or otherwise (such securities, together with the
Existing Securities, the "Securities"), the next succeeding Business Day after
acquisition thereof, any and all of the Securities Beneficially Owned by the
Shareholder at any time during such period, and shall not withdraw any such
tender before consummation of the Offer or the Expiration Date. The
Shareholder hereby acknowledges and agrees that the obligation of Purchaser to
accept for payment Company Shares and TOPrS tendered pursuant to the Offer,
including any Company Shares and TOPrS tendered by the Shareholder and its
Affiliates, shall be subject to the terms and conditions of the Offer. The
parties agree that the Shareholder will, for all Company Shares and TOPrS
tendered by the Shareholder in the Offer and accepted for payment and paid for
by Purchaser, receive the same amount per Company Share or TOPrS as is paid to
other holders of such securities who have tendered into, and whose securities
are accepted for payment in, the Offer.
Section 3. Voting. (a) The Shareholder hereby agrees that during the period
commencing on the date hereof and continuing until the Expiration Date (such
period being referred to as the "Voting Period"), at any meeting (whether
annual or special, and whether or not an adjourned or postponed meeting) of
the Company's shareholders or holders of TOPrS, however called, or in
connection with any written consent of the Company's shareholders or holders
of TOPrS, unless there shall be in effect at such time a preliminary or
permanent injunction or other final order by any court of competent
jurisdiction barring such action, the Shareholder shall vote (or cause to be
voted) (i) all Securities and (ii) all other securities of the Company then
Beneficially Owned by the Shareholder and entitled to vote generally in the
election of directors of the Company or otherwise entitled to vote with
respect to any matter or proposal submitted for the vote or consent of the
shareholders of the Company or holders of TOPrS: (i) in favor of the Offer,
the execution, delivery and performance by the Company of the Acquisition
Agreement and the approval and acceptance of the Offer and the terms thereof;
and (ii) against any action or agreement that would (A) result in a breach of
any covenant, representation or warranty or any other obligation or agreement
of the Shareholder under this Agreement or of the Company under the
Acquisition Agreement or (B) prevent, impede, interfere with, delay, postpone
or attempt to discourage the Offer or the transactions contemplated by the
Acquisition Agreement including without limitation: (1) any extraordinary
corporation transaction (other than with Purchaser as contemplated by the
Acquisition Agreement), such as a merger, other business combination,
reorganization or liquidation involving the Company or any of its
Subsidiaries; (2) a sale or transfer of material assets of the Company or any
of its Subsidiaries; (3) any change in the membership of the Supervisory Board
of [sic] Management Board of the Company, except as otherwise agreed to or
requested in writing by Purchaser in accordance with the terms hereof; (4) any
change in the present capitalization or dividend policy of the Company or any
of its Subsidiaries or (5) any other change in the Company's corporate
structure or business or operations. The Shareholder shall not enter into any
agreement with any Person which would violate the provisions contained in this
Section 3.
(b) As soon as practicable after commencement of the Offer, Purchaser shall
provide the Company and Shareholder with the names of the individuals
Purchaser wishes to be appointed to the Supervisory Board and the Management
Board of the Company effective as of the Closing. Following receipt by
Shareholder and the Company of the names of such individuals (and any further
information regarding these individuals as reasonably requested by Shareholder
and the Company), at a general meeting of shareholders convened by the Company
for the purpose of appointing such individuals to the Supervisory Board and
the Management Board of the Company, as the case may be, Shareholder shall
cause such appointments to take place effective as of, and conditional upon
the occurrence of, the Closing.
Section 4. Restrictions During the Voting Period. (a) The Shareholder shall
not, until the termination of the Voting Period, exercise or Transfer the
option granted to it by the Option Agreement unless requested in
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writing by Purchaser and then, in accordance with the terms of the Option
Agreement. Subject to the required consent of the Company, the Shareholder
hereby assigns, transfers and conveys to Purchaser, effective upon the
consummation of the transactions contemplated by the Acquisition Agreement,
all of its rights and entitlement under the Option Agreement, and Purchaser
hereby assumes, effective upon the consummation of the transactions
contemplated by the Acquisition Agreement, all of the rights and obligations
of the Shareholder thereunder.
(b) The Shareholder shall not, until the termination of the Voting Period,
directly or indirectly: (i) except as provided in Section 2 hereof, Transfer
any securities of an Affiliate (whether by merger, consolidation or similar
change of control transaction) which is then a record or beneficial holder of
Company Shares or TOPrS if, as the result of such Transfer, such Person would
cease to be an Affiliate of the Shareholder (ii) Transfer to any Person any
Securities; (iii) grant any proxies or powers of attorney in respect of any
Securities, deposit any Securities into a voting trust or enter into a voting
agreement, understanding or arrangement (except, to the extent applicable, the
Financing Trust, as may be required by the terms pursuant to which the TOPrS
have been issued) with respect thereto; (iv) take any action that would make
any representation or warranty of the Shareholder contained herein untrue or
incorrect or would result in a breach by the Shareholder of its obligations
under this Agreement; or (v) vote any of the Securities in a manner which
would make any representation and warranty of the Company in the Acquisition
Agreement untrue or incorrect or would result in a breach by the Company of
its obligations under the Acquisition Agreement.
(c) Until the termination of the Voting Period, the Shareholder shall not,
and shall cause its Representatives and Affiliates not to, directly or
indirectly, (x) solicit, initiate, encourage, or take any other action (i) to
facilitate, any inquiry or the making of any Acquisition Proposal or (ii)
which could reasonably be expected to impede, frustrate, prevent, delay or
nullify any of the transactions contemplated by this Agreement or the
Acquisition Agreement or to materially diminish the benefits to Purchaser of
the transactions contemplated by this Agreement or the Acquisition Agreement,
(y) take any action to enter into an agreement for the sale or other
disposition by the Company or any of its Subsidiaries of any significant
portion of the assets of or a sale by the Company or any of its Subsidiaries
or by the Shareholder of shares of capital stock of the Company or any of its
Subsidiaries whether by merger or other business combination or tender or
exchange offer or (z) enter into or participate in any discussions or
negotiations regarding any of the foregoing, or in furtherance of any
inquiries regarding any of the foregoing, or furnish to any other Person
(other than Purchaser and its Representatives) any information with respect to
the business, properties or assets of the Company or any of its Subsidiaries
or any of the foregoing. If the Shareholder or any of its Affiliates or
Representatives receives any request for information or an inquiry, proposal
or offer relating to any of the foregoing, then the Shareholder shall orally
(as promptly as practicable and no later than one day) and in writing (as
promptly as practicable) inform Purchaser of the terms and the conditions of
such proposal, inquiry or offer and the identity of the Person making it. The
Shareholder agrees that it will and will cause its Affiliates and their
respective Representatives to immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. The Shareholder agrees that
it will take the necessary steps to promptly inform its Representatives and
Affiliates of the obligations undertaken in this section.
Section 5. Additional Shares. The Shareholder hereby agrees, while this
Agreement is in effect, to promptly notify Purchaser of the number of Company
Shares and TOPrS acquired beneficially or of record by the Shareholder, if
any, after the date hereof. In the event that, between the date of this
Agreement and the Closing Date, Company Shares and TOPrS shall have been
affected or changed into a different number of shares or a different class of
shares as a result of a share split, reverse share split, share distribution,
spin-off, recapitalization, reclassification (other than a change in par
value), or other similar transaction, the term Securities or other securities
shall be deemed to refer to and include any shares or other securities into
which or for which any or all of the Securities may be changed or exchanged
and all such share distributions.
Section 6. Covenants of Purchaser.
(a) Purchaser shall, with effect as of the Closing, indemnify and hold
harmless the Shareholder and its Affiliates from and against all damages,
losses, costs and expenses incurred solely as a result of or arising solely
from, and as promptly as possible following the Closing shall use its
commercially reasonable efforts
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to cause the Shareholder and its Affiliates to be released from
Shareholder's and such Affiliates' obligations under performance bonds,
guarantees, indemnities or other obligations of the Shareholder and any of
its Affiliates outstanding on behalf of the Company and its Subsidiaries as
set forth in Section 2.20 of the Company Disclosure Schedule and as
otherwise agreed by Purchaser in writing. Shareholder agrees that neither
it nor its Affiliates shall be entitled to receive any fees or other
compensation in connection with such performance bonds, guarantees,
indemnities or other obligations accrued for any period after the later of
the Closing and the effectiveness of such release or counter-
indemnification.
(b) In the event any claim, liability, demand, assessment, action, suit
or proceeding shall be asserted against the Shareholder or any of its
Affiliates in respect of which the Shareholder proposes to demand
indemnification pursuant to Section 6(a) (a "Claim"), the Shareholder shall
promptly notify Purchaser thereof (including, without limitation, the
notification and delivery of any information pertaining to such Claim, as
and when received by the Shareholder or any of its Affiliates); provided,
however, that the failure to so notify or deliver such information to
Purchaser shall not discharge Purchaser or otherwise affect Purchaser's
obligations pursuant to Section 6(a) except to the extent that Purchaser is
prejudiced thereby. Purchaser shall have the right, promptly upon receipt
of any notice of any Claim, to assume the control of the defense,
compromise or settlement of such Claim including, at its own expense, the
employment of counsel. The Shareholder shall not settle or compromise any
such Claim without express the written consent of Purchaser.
(c) Effective upon the Closing, Purchaser undertakes for a period of no
less than 36 months from the Closing, that Purchaser, except for good
cause, will not terminate or lay-off any employees of the Company's Italian
Affiliates, unless an appropriate agreement has been entered into with the
relevant unions in Italy. In addition, Purchaser will endeavor to
capitalize on the opportunities and resources available within the
Company's Italian Affiliates.
Section 7. Representations and Warranties of the Shareholder. The
Shareholder hereby represents and warrants to Purchaser as follows:
(a) The Shareholder is a corporation duly organized and validly existing
under the laws of Italy. The Shareholder has all requisite corporate power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement, the performance by the Shareholder of its obligations hereunder
and the consummation by the Shareholder of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action on the part of the Shareholder. This Agreement has been duly
executed and delivered by the Shareholder and constitutes the legal, valid
and binding obligation of the Shareholder, enforceable against the
Shareholder in accordance with its terms except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting creditors generally and by
the general principles of equity, regardless of whether such enforceability
is considered in a proceeding at law or in equity.
(b) The Shareholder, directly and indirectly through Subsidiaries, is the
record holder and Beneficial Owner of 17,813,527 Company Shares (the "Owned
Shares") and 1,600,000 TOPrS convertible into 2,492,212 Company Shares
(collectively, the "Shareholder Securities"), and has good and marketable
title to all of such securities, free and clear of all liens, claims,
options, proxies, voting agreements, security interests, charges, and
encumbrances and preemptive rights. The Shareholder Securities constitute
all of the issued and outstanding capital stock of the Company and its
Subsidiaries and TOPrS Beneficially Owned by the Shareholder and, except
for the TOPrS owned by the Shareholder and as provided thereby and in the
Option Agreement, the Shareholder does not Beneficially Own or have any
right to acquire (whether currently, upon lapse of time, following the
satisfaction of any conditions, upon the occurrence of any event or any
combination of the foregoing) any Company Shares or TOPrS or any securities
convertible into Company Shares or TOPrS. The Shareholder has sole power to
vote and to dispose of the Shareholder Securities, to issue instructions
with respect to the Shareholder Securities to the extent appropriate in
respect of the matters set forth in this Agreement and to agree to all of
the matters set forth in this Agreement, in each case with respect to all
of the Shareholder Securities, with no limitations, qualifications or
restrictions
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on such rights, subject to applicable securities laws and the terms of this
Agreement. The delivery to Purchaser of any Securities pursuant to the
provisions of this Agreement will transfer to Purchaser good and marketable
title thereto, free and clear of all liens, encumbrances, restrictions and
claims of every kind.
(c) The execution and delivery of this Agreement by the Shareholder do
not, and the performance by the Shareholder of its obligations hereunder
and the consummation by the Shareholder of the transactions contemplated
hereby will not, (i) (A) conflict with or violate the articles of
incorporation or by-laws or other organizational documents of the
Shareholder, (B) conflict with or violate any material law, statute, rule,
regulation order, judgment, writ, injunction or decree applicable to the
Shareholder or any of its properties or assets, (C) result in a violation
or breach of or constitute a default under (or an event which with the
giving of notice or the lapse of time or both would constitute a default
under), require any consent, approval or authorization under, result in the
loss of a benefit or result in any provision becoming applicable or
effective under, or give rise to any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
other encumbrance on any property or asset of the Shareholder pursuant to,
any material note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which the
Shareholder is a party or by which the Shareholder or any property or asset
(including the Shareholder Securities) of the Shareholder may be bound or
affected, except that an Affiliate of the Shareholder is required to prepay
its bank financing upon the sale of the Company Shares and TOPrS owned by
it; or (ii) require the Shareholder to obtain any consent, approval,
authorization or permit of, or to make any filing with or notification to,
any Governmental Entity, except (A) for (1) applicable requirements, if
any, of the Exchange Act, securities or "blue sky" laws of the states of
the United States ("Blue Sky Laws"), and securities laws of Italy, (2) the
prior notification and reporting requirements under the Antitrust Laws (3)
the voluntary notification under Exon-▇▇▇▇▇▇; and (4) any filing required
to be made with the Australian Foreign Investment Review Board; and (B)
where the failure to obtain such consents, approvals, authorizations and
permits, or to make such filings or notifications, would not be reasonably
likely to have a Company Material Adverse Effect and would not prevent or
materially delay the Shareholder from consummating the transactions
contemplated hereby.
(d) The Shareholder understands and acknowledges that Purchaser is
entering into the Acquisition Agreement and incurring the obligations set
forth therein, in reliance upon the Shareholder's execution and delivery of
this Agreement.
Section 8. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to the Shareholder as follows:
(a) Purchaser is a corporation duly organized and validly existing under
the laws of the jurisdiction of The Netherlands and has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and by the Acquisition
Agreement. The execution and delivery of this Agreement and the Acquisition
Agreement, the performance by Purchaser of its obligations hereunder and
thereunder and the consummation by Purchaser of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Purchaser. This Agreement has been duly
executed and delivered by Purchaser and constitutes the legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors generally and by general
principles of equity, regardless of whether such equitable principles are
applied in a proceeding at law or in equity.
(b) Subject to making the filings and obtaining the approvals identified
in Section 3.4 of the Acquisition Agreement, the execution and delivery of
this Agreement and the Acquisition Agreement by Purchaser do not, and the
performance by Purchaser of its obligations hereunder and thereunder and
the consummation by Purchaser of the transactions contemplated hereby and
thereby will not (i) (A) conflict with or violate the articles of
association, certificate of incorporation, by-laws, partnership agreement
or other charter or organization document of Purchaser or any of its
material Subsidiaries, (B) conflict with or violate any material law,
statute, rule, regulation, order, judgment, writ, injunction or decree
applicable to Purchaser or any of its Subsidiaries or any of their
respective properties or assets or (C) result in a violation
5
or breach of or constitute a default under (or an event which with the
giving of notice or the lapse of time or both would constitute a default
under), require any consent, approval or authorization under, result in the
loss of a material benefit or result in any provision becoming applicable
or effective under, or give rise to any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
other encumbrance on any property or asset of Purchaser or any of its
Subsidiaries pursuant to, any material note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument
or obligation to which Purchaser or any of its Subsidiaries is a party or
by which Purchaser or any of its Subsidiaries or any material property or
asset of Purchaser or any of its Subsidiaries may be bound or affected,
except in the case of each of clauses (B) and (C) for any such conflicts,
violations, breaches, defaults or other occurrences which would not be
reasonably likely to result in a Purchaser Material Adverse Effect or
prevent or materially delay Purchaser from consummating the transactions
contemplated hereby and thereby; or (ii) require Purchaser to obtain any
consent, approval, authorization or permit of, or to make any filing with
or notification to, any Governmental Entity, except (A) for (1) applicable
requirements, if any, of the Exchange Act and Blue Sky Laws, (2) the prior
notification and reporting requirements under the Antitrust Laws, (3) the
voluntary notification under Exon-▇▇▇▇▇▇, and (4) any filing required to be
made with the Australian Foreign Investment Review Board; and (B) where the
failure to obtain such consents, approvals, authorizations and permits, or
to make such filings or notifications, would not be reasonably likely to
have a Purchaser Material Adverse Effect or prevent Purchaser from
consummating the transactions contemplated hereby and thereby.
(c) Purchaser understands and acknowledges that the Shareholder is
entering into this Agreement and incurring the obligations set forth
herein, in reliance upon Purchaser's execution and delivery of the
Acquisition Agreement as well as this Agreement.
Section 9. Confidentiality. The Shareholder shall not disclose and will keep
confidential for a period of five years from the Closing Date any information
not otherwise publicly available relating to the Company, any of the
Subsidiaries or the business conducted by any of them that was provided to the
Shareholder by the Company or any of its Subsidiaries and will not use any
such information in any manner detrimental to the Company or its Subsidiaries,
except that Shareholder may disseminate such information to Representatives
who need to know such information for the purpose of analyzing the
transactions contemplated hereby, provided that such Representatives shall be
informed of the confidential nature of such information and Shareholder shall
cause them to treat it confidentially, and otherwise may disclose such
information as required by law.
Section 10. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
Section 11. Expiration. This Agreement and the Shareholder's obligation to
tender, and not withdraw, pursuant hereto and any obligations of Parent and
Purchaser hereunder shall terminate on the Expiration Date. As used herein,
the term "Expiration Date" means the date on which the Acquisition Agreement
is terminated by the Purchaser in accordance with its terms. In the event of
termination of this Agreement, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of Purchaser or the
Shareholder or their respective officers or directors; provided, however, the
foregoing shall not relieve either party for any breach of any representation,
warranty, covenant or agreement in this Agreement. Parent and Purchaser each
acknowledges that, in the event of termination of this Agreement in accordance
with its terms, the Shareholder shall no longer have the obligation to tender,
and may withdraw, the Shareholder Securities; provided, that if the Company
terminates the Acquisition Agreement in accordance with Section 5.1(c), the
Purchaser shall, within five Business Days, either (i) terminate the Offer or
(ii) waive the Minimum Condition and the condition set forth in Paragraph (C)
of the Offer Conditions set forth in Annex A of the Acquisition Agreement
(except that the portion of such condition related to performance or
compliance as to covenants and agreements shall only be waived as to breaches
actually known by Purchaser as of the date of such election) and, to the
extent all other Offer Conditions are satisfied, shall accept for payment and
pay for at the next scheduled expiration date of the Offer (subject to
applicable law) all Company Shares and TOPrS then validly tendered and not
withdrawn in the Offer.
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Section 12. Survival. The representations and warranties contained in
Sections 7(a) and 7(b) and in Section 8 shall survive the consummation of the
Offer indefinitely and the representations and warranties contained in Section
7(c) shall survive until the second anniversary of the Closing Date.
Section 13. Miscellaneous.
(a) This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings between the parties with respect thereto. No addition to or
modification of any provision of this Agreement shall be binding upon either
party hereto unless made in writing and signed by both parties hereto. Any
term or condition of this Agreement may be waived at any time by the party
that is entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of the
party waiving such term or condition. No waiver by any party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to
be a waiver of the same or any other term or condition of this Agreement on
any future occasion.
(b) Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
party, provided, however, that Purchaser may assign its rights and delegate
its obligations hereunder to a wholly-owned subsidiary of Purchaser and
provided, further, that such assignment and delegation shall not relieve
Purchaser of its obligations hereunder. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this
Agreement, expressed or implied, is intended to confer on any Person other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
(c) All notices and other communications hereunder shall be in writing and
shall be deemed duly given (i) on the date of delivery if delivered
personally, or by facsimile, upon confirmation of receipt, (ii) on the first
Business Day following the date of dispatch if delivered by a recognized next-
day courier service, or (iii) on the fifth Business Day following the date of
mailing if delivered by registered or certified mail (airmail if
international), return receipt requested, postage prepaid. All notices
hereunder shall be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice:
If to the Shareholder, to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: Secretary
Facsimile: 39-06-32657-164
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser, to:
ABB Transportation Participations ▇.▇.
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Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: Managing Director
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With a copy to:
ABB Asea ▇▇▇▇▇ Boveri Ltd.
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▇▇-▇▇▇▇ ▇▇▇▇▇▇
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Fax: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: CS-LE
With a further copy to:
White & Case LLP
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(d) If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future law, and if the rights or
obligations of any party hereto under this Agreement will not be materially
and adversely affected thereby, (i) such provision will be fully severable,
(ii) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (iii)
the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal,
invalid or unenforceable provision, there will be added automatically as a
part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be
possible.
(e) The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with its specific terms or was otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any New York Court, this
being in addition to any other remedy to which they are entitled at law or
in equity.
(f) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party. The failure of any party hereto
to exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to insist
upon compliance by any other party hereto with its obligations hereunder,
and any custom or practice of the parties at variance with the terms
hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
(g) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to its rules of conflict
of laws. Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the non-exclusive jurisdiction of the courts of the
State of New York and of the United States of America located in the State
of New York (the "New York Courts") for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby waives
any objection to the laying of venue of any such litigation in the New York
Courts and agrees not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
(h) As used in this Agreement, the word "including" means without
limitation; the word "or" is not exclusive; and the words "herein",
"hereof", "hereby", "hereto" and "hereunder" refer to this Agreement as a
whole. Any reference to any applicable law shall be deemed also to refer to
all rules and regulations promulgated thereunder unless the context
otherwise requires. Whenever required by the
8
context, any gender shall include any other gender, the singular shall
include the plural and the plural shall include the singular. Unless the
context otherwise requires, references herein: (i) to Sections mean the
Sections of this Agreement; and (ii) to an agreement, instrument or other
document means such agreement, instrument or other document as amended,
supplemented and modified through the date hereof, unless the context
otherwise requires, and thereafter from time to time to the extent
permitted by this Agreement. The headings of Sections are inserted for
convenience of reference only and shall not be deemed a part of, or affect
in any way the meaning or interpretation of, this Agreement.
9
IN WITNESS WHEREOF, Purchaser and the Shareholder have caused this Agreement
to be duly executed as of the day and year first above written.
Shareholder:
Finmeccanica S.p.A.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
By: _________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice-Chairman and
Chief Executive Officer
Purchaser:
ABB Transportation Participations
B.V.
/s/ Mats Sacklen
By: _________________________________
Name: Mats Sacklen
Title: PP
/s/ ▇▇▇▇ ▇▇▇▇▇▇
By: _________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
The undersigned, being the sole Shareholder of the Purchaser, hereby
undertakes to insure that the Purchaser will duly perform its obligations
under this Agreement and hereby guarantees any and all liabilities and amounts
which become payable by Purchaser hereunder.
ABB Asea ▇▇▇▇▇ Boveri Ltd.
/s/ Mats Sacklen
By: _________________________________
Name: Mats Sacklen
Title: VP
/s/ ▇▇▇▇ ▇▇▇▇▇▇
By: _________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: VP
10
INDEX OF DEFINED TERMS
(NOT PART OF AGREEMENT)
TERM SECTION
---- --------
Acquisition Agreement................................................. RECITALS
Affiliate............................................................. 1(a)
Agreement............................................................. RECITALS
Beneficial Ownership.................................................. 1(b)
Blue Sky Laws......................................................... 7(c)
Company............................................................... RECITALS
Company Shares........................................................ RECITALS
Expiration Date....................................................... 11
New York Courts....................................................... 13(g)
Offer................................................................. RECITALS
Option Agreement...................................................... 1(c)
Owned Shares.......................................................... 7(b)
Person................................................................ 1(d)
Priority Shares....................................................... 1(e)
Purchaser............................................................. RECITALS
Shareholder........................................................... RECITALS
Shareholder Securities................................................ 7(b)
TOPrS................................................................. RECITALS
Transfer.............................................................. 1(f)
Voting Period......................................................... 3