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EXHIBIT 10
TRANSACTION AGREEMENT
This Agreement is made as of this 28th day of February, 2000 between
Safeguard Scientifics, Inc., a Pennsylvania corporation ("Safeguard"), and
Textron Inc., a Delaware corporation ("Textron"), with reference to the
following Preamble:
Safeguard and Textron desire to establish a strategic alliance
encompassing the rights and obligations described in this Agreement,
including without limitation, (a) the issuance and sale by Safeguard,
and the purchase by Textron of 727,273 shares (the "Purchased Shares")
of Common Stock of Safeguard, par value $.10 per share ("Common
Stock"), in a private placement under Section 4(2) of the Securities
Act of 1933, as amended (the "Securities Act"); (b) the provision of
certain consulting and other services and arrangements by Safeguard and
its network companies to Textron and companies affiliated with Textron;
and (c) the provision of certain consulting and other services and
arrangements by Textron to Safeguard and its network companies.
Capitalized terms used herein shall have the meaning ascribed thereto
in Annex A.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions set forth below, the parties
hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF PURCHASED SHARES
SECTION 1.1 PURCHASE AND SALE OF PURCHASED SHARES. Subject to the terms
and conditions hereinafter set forth, at the Closing (hereinafter defined)
Safeguard shall sell to Textron and Textron shall purchase from Safeguard the
Purchased Shares for a price per share of $137.50 or an aggregate purchase price
of One Hundred Million Dollars ($100,000,000.00) (the "Purchase Price"). The
number of Purchased Shares and the purchase price per Purchased Share shall be
adjusted appropriately to reflect all stock dividends, splits, combinations and
similar transactions which affect the Common Stock with a record date after the
date hereof but prior to the Closing Date.
SECTION 1.2 CLOSING. Subject to the provisions of this Agreement, the
parties shall hold a closing (the "Closing") on the next Business Day following
the date on which the last of the conditions set forth in Article V hereof is
fulfilled or waived (such date, the "Closing Date"), at 9:00 A.M. at the offices
of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
Pennsylvania, or at such other time or place as Textron and Safeguard may agree.
SECTION 1.3 DELIVERIES.
(a) At the Closing, Safeguard shall deliver to Textron, free
and clear of all Liens, the certificates for the Purchased Shares, registered in
the name of Textron and bearing the legend described in Section 3.10 hereof,
against payment by Textron of the Purchase Price by wire transfer of immediately
available funds to such bank account as Safeguard shall designate.
(b) At the Closing, Safeguard shall also deliver to Textron,
and Textron shall deliver to Safeguard, as applicable, the certificates and
opinion referred to in Sections 5.2 and 5.3 hereof.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
SAFEGUARD
Safeguard represents and warrants to Textron the following, except as
set forth on a disclosure schedule delivered by Safeguard concurrently with the
execution and delivery of this Agreement (the "Safeguard Schedule").
SECTION 2.1 ORGANIZATION AND POWERS. Safeguard is a corporation duly
incorporated, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania. Safeguard has all requisite corporate power and
authority to carry on its business as it has been and is now and as is currently
contemplated to be conducted and to own, lease and operate the properties and
assets used in connection therewith.
SECTION 2.2 AUTHORITY; BINDING EFFECT. Safeguard has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. All necessary action, corporate
or otherwise, required to have been taken by or on behalf of Safeguard by
Applicable Law, the amended and restated Articles of Incorporation and Bylaws of
Safeguard (the "Safeguard Charter Documents") or otherwise to authorize (a) the
approval, execution and delivery on its behalf of this Agreement and (b) its
performance of its obligations under this Agreement and the consummation of the
transactions contemplated hereby, has been taken. This Agreement constitutes the
valid and binding agreement of Safeguard, enforceable against Safeguard in
accordance with its terms, except (y) as the same may be limited by applicable
bankruptcy, insolvency, moratorium or similar laws of general application
relating to or affecting creditors' rights, including, without limitation, the
effect of statutory or other laws regarding fraudulent conveyances and
preferential transfers, and (z) for the limitations imposed by general
principles of equity.
SECTION 2.3 NO CONFLICT; APPROVALS. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated hereby
will not, (a) violate or conflict with the Safeguard Charter Documents, (b)
result in a Default under any material Contract or Court Order to which
Safeguard or any of its Subsidiaries is a party or by which it is bound, or (c)
subject to the consents, approvals, orders, authorizations, filings,
declarations and registrations specified in Section 2.4 or in the Safeguard
Schedule and the approval by the New York Stock Exchange ("NYSE") of the listing
of the Purchased Shares, conflict with or result in a Default of any License or
any Applicable Law, except, in the case of clauses (b) and (c), for any such
Defaults or Liens which would not have a Safeguard Material Adverse Effect and
do not impair the ability of Safeguard to perform its obligations under this
Agreement or prevent or delay the consummation of any of the transactions
contemplated hereby.
SECTION 2.4 GOVERNMENTAL CONSENTS AND APPROVALS. Except as set forth in
the Safeguard Schedule, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will require any
notification to or License from any Governmental Authority, except (a)
notification pursuant to, and expiration or termination of the waiting period
under the HSR Act and (b) where the failure to obtain such Licenses or to make
such filings or notifications, would not prevent it from performing its
obligations under this Agreement and would not have a Safeguard Material Adverse
Effect.
SECTION 2.5 ISSUANCE OF SHARES. The issuance and sale of the Purchased
Shares have been
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duly authorized and, upon the issuance of such shares in accordance with the
provisions of this Agreement and the Plan, such shares will be validly issued
and outstanding, fully paid and nonassessable shares of Common Stock, free of
preemptive or similar rights. Based in part upon the accuracy of the
representations of Textron contained in Article III hereof, the issuance of the
Purchased Shares is exempt from registration under the Securities Act and
applicable blue sky laws.
SECTION 2.6 REGISTRATION RIGHTS. Safeguard is not under any obligation
to register any of its securities under the Securities Act except (i) as
provided in this Agreement, or (ii) pursuant to the Registration Rights
Agreement, dated June 3, 1999, between Safeguard and Credit Suisse First Boston
Corporation (the "1999 Notes Agreement").
SECTION 2.7 SEC REPORTS; 1999 FINANCIAL STATEMENTS. Safeguard has filed
all required forms, reports and documents with the SEC since January 1, 1999
(collectively, "Safeguard's SEC Reports"), including, without limitation,
Safeguard's Annual Report on Form 10-K for the year ended December 31, 1998.
Safeguard's SEC Reports have complied in all material respects with all
applicable requirements of the Securities Act and the Exchange Act. As of their
respective dates, none of Safeguard's SEC Reports, including, without
limitation, any financial statements or schedules included or incorporated by
reference therein, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated or incorporated by reference
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The consolidated
financial statements (including, in each case, any notes thereto) of Safeguard
included in Safeguard's SEC Reports or in the Safeguard Schedule complied with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, were prepared in accordance with GAAP (except, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated
therein or in the notes thereto) and fairly presented in all material respects
the consolidated financial position of Safeguard and its consolidated
Subsidiaries as at the respective dates thereof and the consolidated results of
their operations and their consolidated cash flows for the periods then ended.
Safeguard has heretofore delivered to Textron, in the form filed with the SEC,
all of Safeguard's SEC Reports.
SECTION 2.8 ABSENCE OF CERTAIN CHANGES. Except as otherwise disclosed
in the Safeguard Schedule, since September 30, 1999, Safeguard and its
Subsidiaries have not been subject to, and have no knowledge of, any events or
conditions of any character that would have a Safeguard Material Adverse Effect
or impair the ability of Safeguard to perform its obligations under this
Agreement or prevent or delay the consummation of any of the transactions
contemplated hereby.
SECTION 2.9 ABSENCE OF LITIGATION; CLAIMS. There are no claims,
actions, suits, proceedings or investigations pending or, to the knowledge of
Safeguard, threatened against Safeguard or any of its Subsidiaries, or any
properties or rights of Safeguard or any of its Subsidiaries, before any
Governmental Authority or arbitrator, which, if decided adversely to Safeguard
or such Subsidiary, would have a Safeguard Material Adverse Effect or impair the
ability of Safeguard to perform its obligations under this Agreement or prevent
or delay the consummation of any of the transactions contemplated hereby, nor is
there any Court Order or judgment, decree, injunction, ruling or order of any
arbitrator outstanding against Safeguard or any of its Subsidiaries having or
which, insofar as reasonably can be foreseen, in the future would have a
Safeguard Material Adverse Effect.
SECTION 2.10 CAPITALIZATION. As of the date hereof, the authorized and
outstanding shares of capital stock of Safeguard is as shown in the Safeguard
Schedule. All outstanding shares of capital stock of Safeguard are duly
authorized and have been validly issued and are fully paid, nonassessable and
free
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of any liens or encumbrances other than any liens or encumbrances created by or
imposed upon the holders thereof. There are as of the date hereof no outstanding
obligations of Safeguard to issue or deliver or to repurchase, redeem or
otherwise acquire any Safeguard securities.
SECTION 2.11 BROKERS AND FINDERS. Neither Safeguard nor any of its
respective officers, directors or employees has employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finder's fees in
connection with the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
TEXTRON
Textron represents and warrants to Safeguard the following, except as
set forth on a disclosure schedule delivered by Textron concurrently with the
execution and delivery of this Agreement (the "Textron Schedule"):
SECTION 3.1 ORGANIZATION AND POWERS. Textron is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Textron has all requisite corporate power and authority to carry on
its business as it has been and is now being conducted and to own, lease and
operate the properties and assets used in connection therewith.
SECTION 3.2 AUTHORITY; BINDING EFFECT. Textron has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. All necessary action, corporate
or otherwise, required to have been taken by or on behalf of Textron by
Applicable Law, the amended and restated Certificate of Incorporation and Bylaws
of Textron (the "Textron Charter Documents") or otherwise to authorize (a) the
approval, execution and delivery on its behalf of this Agreement, and (b) its
performance of its obligations under this Agreement and the consummation of the
transactions contemplated hereby, has been taken. This Agreement constitutes the
valid and binding agreement of Textron, enforceable against Textron in
accordance with its terms, except (y) as the same may be limited by applicable
bankruptcy, insolvency, moratorium or similar laws of general application
relating to or affecting creditors' rights, including, without limitation, the
effect of statutory or other laws regarding fraudulent conveyances and
preferential transfers, and (z) for the limitations imposed by general
principles of equity.
SECTION 3.3 NO CONFLICT; APPROVALS. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated hereby
will not, (a) violate or conflict with the Textron Charter Documents, (b) result
in a Default under any material Contract to which Textron or any of its
Subsidiaries is a party or by which it is bound, or (c) subject to the consents,
approvals, orders, authorizations, filings, declarations and registrations
specified in Section 3.4 or in the Textron Schedule, conflict with or result in
a Default of any License or any Applicable Law, except, in the case of clauses
(b) and (c), for any such Default or Liens which would not impair the ability of
Textron to perform its obligations under this Agreement or prevent or delay the
consummation of any of the transactions contemplated hereby.
SECTION 3.4 GOVERNMENTAL CONSENTS AND APPROVALS. Except as set forth in
the Textron Schedule, neither the execution and delivery of this Agreement nor
the consummation of the Transactions contemplated hereby will require any
notification to or License from any Governmental Authority, except (a)
notification pursuant to, and expiration or termination of the waiting period
under
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the HSR Act and (b) where the failure to obtain such Licenses or to make such
filings or notifications, would not prevent it from performing its obligations
under this Agreement.
SECTION 3.5 ABSENCE OF LITIGATION; CLAIMS. There are no Court Orders or
claims, actions, suits, proceedings or investigations pending or, to the
knowledge of Textron, threatened against Textron or any of its Subsidiaries, or
any properties or rights of Textron or any of its Subsidiaries, before any
Governmental Authority or arbitrator, which, if decided adversely to Textron or
such Subsidiary, would impair the ability of Textron to perform its obligations
under this Agreement or prevent or delay the consummation of any of the
transactions contemplated hereby.
SECTION 3.6 BROKERS AND FINDERS. Neither Textron nor any of its
respective officers, directors or employees has employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finder's fees in
connection with the Transactions contemplated hereby, which in either case
require a payment by Safeguard.
SECTION 3.7 PRIVATE PLACEMENT. Textron represents and warrants that it
is acquiring the Purchased Shares for its own account, as principal and not on
behalf of other persons, and for investment and not with a view to the resale or
distribution of all or any part of such Purchased Shares. Textron (a) has such
knowledge and experience in business and financial matters and such knowledge
concerning the business, operations and financial condition of Safeguard that it
is capable of evaluating the merits and risks of an investment in the Purchased
Shares, (b) fully understands the nature, scope, and duration of the limitations
on transfer contained herein and under Applicable Law and (c) can bear the
economic risk of any investment in the Purchased Shares and can afford a
complete loss of such investment. Textron has had an adequate opportunity to ask
questions and receive answers (and has asked such questions and received answers
to its satisfaction) from the officers of Safeguard concerning the business,
operations and financial condition of Safeguard. Textron has no Contract with
any other person to sell, transfer or grant participation in any of the
Purchased Shares. Textron hereby agrees that certificates representing the
Purchased Shares may bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES
ACT OF 1933, UNLESS, IN THE OPINION (WHICH SHALL BE IN FORM
AND SUBSTANCE SATISFACTORY TO THE ISSUER) OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER, SUCH REGISTRATION IS
NOT REQUIRED. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 6.10
OF A TRANSACTION AGREEMENT, DATED FEBRUARY 28, 2000 BETWEEN
THE ISSUER AND TEXTRON, INC.
The legend set forth above shall be removed by Safeguard from any certificate
evidencing Purchased Shares (i) at such time as such Purchased Shares have been
registered under the Securities Act, or (ii) after the first anniversary of the
Closing Date upon delivery to Safeguard of an opinion by counsel, reasonably
satisfactory to Safeguard, that such Purchased Shares can be freely transferred
in a public sale without a registration statement under the Securities Act of
1933 being in effect, or (iii) when they
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become eligible for sale under Rule 144(k) under the Securities Act upon receipt
of an appropriate officers certificate of Textron as to such eligibility.
ARTICLE IV
OTHER AGREEMENTS
SECTION 4.1 REASONABLE BEST EFFORTS. Except as otherwise provided
herein, each of the parties hereto agrees to use its reasonable best efforts to
take, or cause to be taken, all appropriate action, and to do, or cause to be
done, all things necessary, proper or advisable under Applicable Law to
consummate and make effective the transactions contemplated hereby in the most
expeditious manner practicable, including, without limitation, the satisfaction
of all conditions to the obligations of the parties to consummate the Closing as
promptly as practicable, but in no event later than March 31, 2000.
SECTION 4.2 PUBLIC ANNOUNCEMENTS. The parties hereto shall not, and
shall not permit their Representatives to, make any public announcements or
otherwise communicate with any news media with respect to this Agreement or any
of the transactions contemplated hereby without prior consultation with the
other parties as to the timing and contents of any such announcement as may be
reasonable under the circumstances; provided, that nothing contained herein
shall prevent any party from promptly making all filings with Governmental
Authorities and all disclosure as may, in its good faith judgment, be required
or advisable in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby (in which case the
disclosing party shall advise the other parties and provide them with a copy of
the proposed disclosure or filing prior to making the disclosure or filing).
SECTION 4.3 NOTIFICATION. Each party hereto shall, in the event of, or
promptly after obtaining knowledge of the occurrence or threatened occurrence
of, any fact or circumstance that would cause or constitute a breach of any of
its representations and warranties set forth herein, give notice thereof to the
other party and shall use its best efforts to prevent or promptly to remedy such
breach.
SECTION 4.4 REGULATORY AND OTHER AUTHORIZATIONS. (a) Each party hereto
agrees to use commercially reasonable efforts to comply with all legal
requirements which may be imposed on such party with respect to the transactions
contemplated hereby and to obtain all consents of Governmental Authorities and
non-governmental third parties that may be or become necessary with respect to
its respective execution and delivery of, and the performance of its respective
obligations pursuant to this Agreement, and each party will cooperate fully with
the other party in promptly seeking to obtain all such consents. Without
limitation, Textron and Safeguard shall each make an appropriate filing of a
Notification and Report Form pursuant to the HSR Act promptly, but in no event
later than 40 days after the date hereof, and shall promptly respond to any
request for additional information with respect thereto. Each such filing shall
request early termination of the waiting period imposed by the HSR Act.
(b) Notwithstanding anything else to the contrary contained in
this Agreement, neither of the parties shall have any obligation to oppose,
challenge or appeal any suit, action or proceeding by any Governmental Authority
or any order or ruling by any Governmental Authority, (i) seeking to restrain or
prohibit or restraining or prohibiting the consummation of the transactions
contemplated hereby, (ii) seeking to prohibit or limit or prohibiting or
limiting the ownership, operation or control by Textron, Safeguard or any of
their respective Subsidiaries of any portion of the business or assets of
Textron, Safeguard or any of their respective Subsidiaries or (iii) seeking to
compel or compelling Textron, Safeguard or any of their respective Subsidiaries
to dispose of, grant rights in respect of, or hold separate any portion of the
business or assets of Textron, Safeguard or any of their
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respective Subsidiaries.
ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.1 CONDITIONS TO THE OBLIGATIONS OF SAFEGUARD AND TEXTRON. The
respective obligations of Safeguard and Textron to consummate the transactions
contemplated hereby are subject to the requirements that:
(a) No Injunctions or Restraints; Illegality. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal or regulatory restraint or
prohibition shall have been issued and be in effect (i) restraining or
prohibiting the consummation transactions contemplated hereby or (ii)
prohibiting or limiting the ownership, operation or control by Textron,
Safeguard or any of their respective Subsidiaries of any portion of the business
or assets of Textron, Safeguard or any of their respective Subsidiaries, or
compelling Textron, Safeguard or any of their respective Subsidiaries to dispose
of, grant rights in respect of, or hold separate any portion of the business or
assets of Textron, Safeguard or any of their respective Subsidiaries; nor shall
any action have been taken by a Governmental Authority or any Applicable Law
shall have been enacted, entered, promulgated or enforced by any Governmental
Authority or arbitrator, which is in effect and has the effect of making the
transaction contemplated hereby illegal or otherwise prohibiting the
consummation of the transaction contemplated hereby.
(b) HSR Act. Any waiting period applicable to the consummation
of the transaction contemplated hereby under the HSR Act shall have expired or
been terminated.
(c) NYSE Listing. Approval for listing by the NYSE upon
official notice of issuance of the Purchased Shares shall have been received by
Safeguard.
SECTION 5.2 CONDITIONS TO THE OBLIGATIONS OF TEXTRON. The obligations
of Textron to consummate the transactions contemplated hereby are subject to the
further requirements that:
(a) Representations and Warranties. The representations and
warranties of Safeguard contained in this Agreement or in any other document
delivered pursuant hereto shall be true and correct in all material respects
(except to the extent that such representations and warranties are qualified by
materiality in which case, to the extent of such qualification, they shall be
true and correct in all respects) on and as of the Closing Date with the same
effect as if made on and as of the Closing Date and at the Closing Safeguard
shall have delivered to Textron a certificate to that effect.
(b) Performance of Obligations. Each of the obligations of
Safeguard to be performed on or before the Closing Date pursuant to the terms of
this Agreement shall have been duly performed in all material respects on or
before the Closing Date and at the Closing Safeguard shall have delivered to
Textron a certificate to that effect.
(c) Opinion of Counsel. Textron shall have received the
written opinion dated the Closing Date of counsel for Safeguard covering the
matters agreed to by the parties prior to the date hereof, subject to customary
qualifications and limitations.
SECTION 5.3 CONDITIONS TO THE OBLIGATIONS OF SAFEGUARD. The obligations
of Safeguard to
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consummate the transactions contemplated hereby are subject to the further
requirements that:
(a) Representations and Warranties. The representations and warranties
of Textron contained in this Agreement or in any other document delivered
pursuant hereto shall be true and correct in all material respects (except to
the extent that such representations and warranties are qualified by materiality
in which case, to the extent of such qualification, they shall be true and
correct in all respects) on and as of the Closing Date with the same effect as
if made on and as of the Closing Date and at the Closing Textron shall have
delivered to Safeguard a certificate to that effect.
(b) Performance of Obligations. Each of the obligations of Textron to
be performed on or before the Closing Date pursuant to the terms of this
Agreement shall have been duly performed in all material respects on or before
the Closing Date and at the Closing, Textron shall have delivered to Safeguard a
certificate to that effect.
ARTICLE VI
REGISTRATION RIGHTS
SECTION 6.1 CERTAIN DEFINITIONS.
(a) As used herein, the following terms shall have the
following respective meanings:
The terms "register," "registered" and "registration"
refer to a resale registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
"Registrable Shares" shall mean the Purchased Shares
and any securities issued or issuable in respect of the Purchased Shares upon
any stock split, stock dividend, distribution, reorganization, merger,
consolidation, exchange, recapitalization or other similar event occurring
following the date of this Agreement.
"Registration Expenses" shall mean all expenses,
other than Selling Expenses, incurred by Safeguard in complying with Section 6.2
hereof, including without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for Safeguard, up to $10,000 of the fees and disbursements of not more than one
counsel to Textron, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, and costs of insurance.
"Selling Expenses" shall mean all underwriting
discounts, selling commissions and stock transfer taxes applicable to the
Registrable Securities registered pursuant to Sections 6.2 hereof and the costs
of any counsel retained by the holders of Registrable Securities in excess of
$5,000 and the costs of any accountants or other experts retained by or on
behalf of the holders of Registrable Securities.
SECTION 6.2 "PIGGY-BACK" REGISTRATION. If Safeguard at any time prior
to the second anniversary of this Agreement proposes to register any of its
securities under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except
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with respect to (i) the first registration statement initially filed with the
SEC after the date hereof and prior to July 31, 2000, (ii) any registration
statement filed by Safeguard pursuant to its obligations under the 1999 Notes
Agreement, or (iii) any registration statement on Forms ▇-▇, ▇-▇ or any
successor or similar forms thereto), each such time it will give written notice
to Textron and its subsidiaries who are then holders of outstanding Registrable
Shares of its intention to do so. Upon the written request of any such holder,
received by Safeguard within fifteen (15) days after the giving of any such
notice by Safeguard, to register any of its Registrable Shares, Safeguard will,
except as provided below, cause the Registrable Shares as to which registration
shall have been so requested to be included in the securities to be covered by
the registration statement proposed to be filed by Safeguard, all to the extent
required to permit the sale or other disposition by the holder of such
Registrable Shares so registered. In the event that any registration pursuant to
this Section 6.2 shall be, in whole or in part, an underwritten public offering
of securities, the number of Registrable Shares to be included in such an
underwriting may be reduced if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would adversely affect the marketing
of the securities to be sold therein. Any exclusion of Registrable Shares shall
be made pro rata among holders of Registrable Shares and other holders of
Safeguard equity securities seeking to include such securities in such
registration statement. In no event shall Safeguard have any obligation to
reduce the number of shares being sold by Safeguard in the offering.
Notwithstanding the foregoing provisions, Safeguard may withdraw any
registration statement referred to in this Section 6.2 without thereby incurring
any liability to the holders of Registrable Shares if the Board of Directors of
Safeguard determines that such registration is not in the best interests of
Safeguard. There shall be no limit to the number of registrations of Registrable
Shares which may be effected under this Section 6.2.
SECTION 6.3 REGISTRATION PROCEDURES. If and whenever Safeguard is
required by the provisions of Section 6.2 to use its best efforts to effect the
registration of any Registrable Shares under the Securities Act, Safeguard will,
as expeditiously as possible:
(a) furnish to each seller of Registrable Shares in such
offering and to each underwriter such number of copies of the registration
statement and the prospectus included therein (including each preliminary
prospectus) as such persons reasonably may request in order to facilitate the
public sale or other disposition of the Registrable Shares covered by such
registration statement;
(b) use its best efforts to register or qualify the
Registrable Shares covered by such registration statement under the securities
or "blue sky" laws of such jurisdictions as the sellers of Registrable Shares in
such offering or, in the case of an underwritten public offering, the managing
underwriter reasonably shall request; provided, however, that Safeguard shall
not for any such purpose be required to qualify generally to transact business
as a foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction;
(c) use its best efforts to list the Registrable Shares
covered by such registration statement with any securities exchange or market on
which the securities of Safeguard, if applicable, is then listed or quoted;
(d) Furnish to each selling holder of Registrable Shares a
copy of all documents filed with and all correspondence from or to the SEC in
connection with any such registration; and
(e) immediately notify each seller of Registrable Shares in
such offering and each underwriter under such registration statement, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which Safeguard has knowledge
as a result of which the prospectus contained in such registration statement, as
then in effect,
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contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
SECTION 6.4 EXPENSES. All Registration Expenses shall be borne by
Safeguard whether or not the registration statement has become effective. All
Selling Expenses shall be borne by the participating sellers in proportion to
the number of shares sold by each, or by such participating sellers other than
Safeguard (except to the extent Safeguard shall be a seller) as they may agree.
SECTION 6.5 INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of a registration of any of the Registrable
Shares under the Securities Act pursuant to Section 6.2, Safeguard will
indemnify and hold harmless each seller of such Registrable Shares thereunder,
each underwriter of such Registrable Shares thereunder and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registrable Shares were
registered under the Securities Act pursuant to Section 6.2, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each such seller, each
such underwriter and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that Safeguard will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished in writing by such seller, such
underwriter or such controlling person specifically for use in such registration
statement or prospectus.
(b) In the event of a registration of any of the Registrable
Shares under the Securities Act pursuant to Section 6.2, each seller of such
Registrable Shares thereunder, severally and not jointly, will indemnify and
hold harmless Safeguard, each person, if any, who controls Safeguard within the
meaning of the Securities Act, each officer of Safeguard who signs the
registration statement, each director of Safeguard, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
Safeguard or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Registrable Shares
were registered under the Securities Act pursuant to Section 6.2, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
Safeguard and each such officer, director, underwriter and controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that such seller will be liable hereunder in any such case
if, and only to the extent that, any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
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statement of a material fact or omission or alleged omission of a material fact
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to Safeguard by such seller specifically
for use in such registration statement or prospectus; and provided further,
however, that the liability of each seller hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense which is equal
to the proportion that the public offering price of the shares sold by such
seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not in any event to exceed the net
proceeds received by such seller from the sale of Registrable Shares covered by
such registration statement.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 6.5 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 6.5 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 6.5 for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select one separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) any
indemnified party exercising rights under the Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 6.5 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6.5 provides
for indemnification in such case, (ii) contribution under the Securities Act may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this Section
6.5, or (iii) if the indemnification provided for by this Section 6.5 is
insufficient to hold harmless an indemnified party, other than by reason of the
exceptions provided therein; then, and in each such case, Safeguard and such
holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) (x) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other or (y) if the
allocation provided by clause (x) above is not permitted by applicable law, or
provides a lesser sum to the indemnified party than the amount hereinafter
calculated, in such proportion as is appropriate to reflect not only the
relative fault referred to in clause (x) above but also the relative benefits
received by the indemnifying party and the indemnified
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party from the offering of the securities (taking into account the portion of
the proceeds of the offering received by each such party) and, in each case,
taking into account the statements or omissions which resulted in such losses,
claims, damages or liabilities and any other relevant equitable considerations.
No person will be required to contribute any amount in excess of the proceeds
received by such person in respect of all such Registrable Shares offered and
sold by it pursuant to such registration statement and no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
SECTION 6.6 CHANGES IN COMMON STOCK; SUCCESSOR.
(a) If, and as often as, there is any change in the Common
Stock by way of a stock split, stock dividend, combination or reclassification,
or through a merger, consolidation, reorganization or recapitalization, or by
any other means, appropriate adjustment shall be made in the provisions hereof
so that the rights and privileges granted hereby shall continue with respect to
the Common Stock as so changed.
(b) If Safeguard consolidates or merges into or with, another
person or sells, assigns, conveys, transfers, leases or otherwise disposes of
all or a majority of its assets to any person or group, or any person or group
consolidates with, or merges into or with, Safeguard, each holder of Registrable
Shares shall, as a condition to the relevant transaction involving such person,
group or successor in business, be granted by such person, group or successor in
business (each a "Successor"), equivalent rights to the rights granted in
hereunder.
SECTION 6.7 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the SEC which may at any time
permit the sale of Registrable Shares to the public without registration,
Safeguard agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of Safeguard under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Registrable Shares forthwith
upon request a written statement by Safeguard as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of Safeguard,
and such other reports and documents so filed by Safeguard as such holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing such holder to sell any Registrable Shares without registration.
SECTION 6.8 "MARKET STAND-OFF" AGREEMENT. Any holder of Registrable
Shares agrees, if requested by Safeguard or an underwriter of such registered
public offering, not to sell or otherwise transfer or dispose of any Common
Stock (or other securities) of Safeguard held by such holder other than
Registrable Shares included in the registration during a period of up to 90 days
following the effective date of the registration statement of Safeguard filed
under the Securities Act, provided that all other persons selling securities in
such underwritten public offering and all executive officers and directors of
Safeguard shall enter into similar agreements. Such agreement shall be in
writing in the form satisfactory to Safeguard and such underwriter, and may be
included in the underwriting agreement. Safeguard may impose stop-transfer
instructions with respect to the securities subject to the foregoing
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restriction until the end of the required stand-off period.
SECTION 6.9 TRANSFERABILITY OF REGISTRATION RIGHTS. Registration rights
conferred herein on the holders of Registrable Shares shall inure to the benefit
only of Textron and its Subsidiaries.
SECTION 6.10 TRANSFER RESTRICTIONS. Notwithstanding any registration of
Registrable Shares, Textron agrees not to sell or transfer any Purchased Shares
to any person or entity, other than subsidiaries who agree to be bound to this
Section 6.10, for a period of one year from the Closing Date.
ARTICLE VII
STRATEGIC ALLIANCE ARRANGEMENTS
SECTION 7.1 CONSULTATION AND OTHER SERVICES TO BE PROVIDED BY
SAFEGUARD.
(a) On no less than a quarterly basis, representatives of
Safeguard and its network companies shall meet with representatives of Textron's
business units to discuss trends and developments in information technology and
e-commerce based on Safeguard's general knowledge of the marketplace and of the
specific activities of companies in the Safeguard network. The Safeguard
representatives shall include an appropriate mix of high level business
personnel and individuals with specific industry and technology know-how.
(b) Safeguard shall, on a regular basis, make specific
recommendations to Textron regarding information technology and e-commerce
products and services that Textron should adopt. Such products shall include
products and services offered by companies in the Safeguard network. Textron
shall have no obligation to adopt such products or services. Safeguard shall
recommend to its network companies that they offer Textron the opportunity to
act as a beta site for new products and services. Textron shall have no
obligations to act as a beta site.
(c) Safeguard shall offer Textron coordinated access to the
products and services of Safeguard's network companies and use reasonable
efforts to secure most favored nations pricing and terms where appropriate.
Textron shall enter into a separate agreement with each applicable entity
regarding the terms and conditions of the delivery of such products and
services. Textron shall have no obligation to license or otherwise acquire the
right to use any such product or service.
(d) Safeguard shall invite Textron representatives to
participate on appropriate Safeguard and Safeguard network advisory
councils/boards.
(e) The services provided by Safeguard pursuant to this
Section 7.1 shall be provided free of charge to Textron. Each party shall bear
its own out-of-pocket expenses incurred in connection therewith.
SECTION 7.2 CONSULTATION AND OTHER SERVICES TO BE PROVIDED BY TEXTRON.
(a) Textron shall meet on a quarterly basis with Safeguard and
provide Safeguard with information regarding Textron's technology and
infrastructure in order to (i) enable Safeguard to assess Textron's information
technology and e-commerce needs and (ii) enable Safeguard to assess the general
needs of the industries in which Textron conducts business.
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(b) Textron shall invite Safeguard representatives to
participate in Textron IM Council meetings and other appropriate Textron
sponsored meetings and conferences relating to e-commerce.
(c) Textron will discuss with Safeguard and, as appropriate,
give Safeguard and its network companies the opportunity to bid on, all major
new IT and e-commerce, e-communications, and e-Software services requirements.
Textron will have no obligation to accept any bid.
(d) The services provided by Textron pursuant to this Section
7.2 shall be provided free of charge to Safeguard. Each party shall bear its own
out-of-pocket expenses incurred in connection therewith.
SECTION 7.3 ADVISORY BOARD. The parties shall establish an advisory
board that shall meet on a quarterly basis to assess and evaluate the strategic
alliance between the parties and to oversee the services requested and provided
by a party under this Article VII and the appropriate compensation arrangements
related thereto. Each party shall designate at least one senior corporate
officer to represent the party on such advisory board and such other persons as
the party may elect. The advisory board will explore the possibility of the
parties jointly developing technologies and services and licensing or providing
the resulting technologies and services to third parties. Each party shall bear
its own expenses in connection with the foregoing.
SECTION 7.4 CONFIDENTIALITY.
(a) Confidential Information. For the purposes of this
Agreement, the term "Confidential Information" means any information disclosed
in connection with the transaction contemplated by this Agreement by either
party (the "Disclosing Party") to the other (the "Receiving Party") in any
manner and all tangible embodiments of such information. Confidential
Information shall not include any information that: (a) is or becomes publicly
known through no fault of the Receiving Party; (b) is developed independently by
the Receiving Party; (c) is known by the Receiving Party when disclosed if the
Disclosing Party does not then have a duty to maintain its confidentiality; or
(d) is rightfully obtained by the Receiving Party from a third party who does
not owe the Disclosing Party a duty to preserve its confidentiality. Without
limiting the generality of the foregoing, all information provided to the
Receiving Party by the Disclosing Party regarding the Disclosing Party's
business operations shall be deemed to be Confidential Information.
(b) Permitted Purposes. "Permitted Purpose" means the specific
purpose for which the Disclosing Party disclosed particular Confidential
Information to the Receiving Party. The Receiving Party shall use Confidential
Information solely for Permitted Purposes.
(c) Nondisclosure Obligation. From the time that Confidential
Information is disclosed by the Disclosing Party until the time that such
Confidential Information becomes publicly known through no fault of the
Receiving Party, the Receiving Party shall not disclose Confidential Information
to any person other than those who are subject to a nondisclosure obligation
comparable in scope to this Agreement and who have a need to know such
Confidential Information for a Permitted Purpose. Notwithstanding anything to
the contrary herein, a Receiving Party may disclose Confidential Information to
the extent required by a court or other governmental authority.
(d) This Section 7.4 shall survive for ten years after the
later of the (i) termination or expiration of Article VII, or (ii) the
termination of this Agreement pursuant to Section 8.1.
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SECTION 7.5 TERM AND TERMINATION OF ARTICLE VII. Article VII of this
Agreement shall become effective on the Closing Date and remain in effect until
the fifth anniversary of the Closing Date unless terminated sooner pursuant to
this Section 7.5. Article VII of this Agreement may be terminated (a)
immediately by either party upon written notice upon a material breach by the
other party of its obligations under this Agreement, or (b) on the sixtieth day
after written notice of termination by either party; provided, however, this
Agreement may not be terminated pursuant to Section 7.5(b) hereof by either
party before the one-year anniversary of the date hereof. The termination of
this Article VII shall have no effect on any other agreements between Textron
and its respective Affiliates and Safeguard and its respective Affiliates.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 TERMINATION. This Agreement may be terminated (by written
notice by the terminating party to the other parties) and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date:
(a) By mutual written consent of each of Safeguard and
Textron;
(b) By either Safeguard or Textron if the Closing shall not
have occurred on or before April 30, 2000 (the "Termination Date"); provided,
however, that the right to terminate this Agreement under this Section 8.1(b)
shall not be available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the failure of the
Closing to occur on or before the Termination Date;
(c) By either Safeguard or Textron if a Governmental Authority
or arbitrator shall have issued an order, decree or ruling or taken any other
action (which order, decree or ruling the parties shall use their commercially
reasonable efforts to lift), in each case permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated hereby, and such order,
decree, ruling or other action shall have become final and nonappealable; or
(d) By Safeguard if Textron shall have breached, or failed to
comply with, in any material respect any of its obligations under this Agreement
or any representation or warranty made by Textron shall have been incorrect in
any material respect when made or shall have since ceased to be true and correct
in any material respect, and such breach, failure or misrepresentation is not
cured within 30 days after notice thereof and such breaches, failures or
misrepresentations, individually or in the aggregate, result or would reasonably
be expected to impair the ability of Textron to perform its obligations under
this Agreement, and by Textron if Safeguard shall have breached, or failed to
comply with, in any material respect any of its obligations under this Agreement
or any representation or warranty made by Safeguard shall have been incorrect in
any material respect when made or shall have since ceased to be true and correct
in any material respect, and such breach, failure or misrepresentation is not
cured within 30 days after notice thereof and such breaches, failures or
misrepresentations, individually or in the aggregate, result or would reasonably
be expected to result in a Safeguard Material Adverse Effect.
SECTION 8.2 EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 8.1, such termination shall be without liability of any
party (or any Affiliate or representative of such party) to any other party,
except that if such termination shall result from the (i) failure of any party
to
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this Agreement to fulfill a condition to the performance of the obligations of
the other parties that is within the control of such party, (ii) failure of any
party to this Agreement to perform a covenant or agreement contained in this
Agreement, or (iii) breach by any party to this Agreement of any representation
or warranty contained in this Agreement made as of the date of this Agreement,
such party shall be fully liable for any and all damages incurred or suffered by
any other party as a result of such failure or breach. The provisions of Section
4.2 shall survive any termination of this Agreement pursuant to Section 8.1.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof. This Agreement may not
be amended except by an instrument in writing signed by the parties hereto. In
the event of a conflict between any term of this Agreement and information
contained in Textron Schedule or the Safeguard Schedule, the terms included in
this Agreement shall govern.
SECTION 9.2 WAIVER. At any time before the Effective Time, any party
hereto may (a) extend the time for the performance of any of the obligations or
other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party to any such
extension or waiver shall be valid only as against such party and only if set
forth in an instrument in writing signed by such party.
SECTION 9.3 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
in person, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) or by overnight courier service to the respective
parties as follows:
if to Safeguard:
Safeguard Scientifics, Inc.
800 The Safeguard Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: N. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire
if to Textron:
Textron Inc.
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▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Executive Vice President and General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
notice or communication delivered in person shall be deemed effective on
delivery. Any notice or communication sent by telecopy shall be deemed effective
on the first business day at the place of which such notice or communication is
received following the day on which such notice or communication was sent. Any
notice or communication sent by registered or certified mail shall be deemed
effective on the fifth business day at the place from which such notice or
communication was mailed following the day in which such notice or communication
was mailed.
SECTION 9.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York regardless of the
laws that might otherwise govern under principles of conflicts of laws
applicable thereto. The parties waive all right to trial by jury in any action,
suit or proceeding to enforce or defend any rights or remedies under this
Agreement.
SECTION 9.5 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 9.6 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 9.7 EXPENSES. Except as otherwise provided herein, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
SECTION 9.8 BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, executors, legal representatives and successors. This Agreement may not
be assigned by any party hereto without the prior written consent of the other
parties.
SECTION 9.9 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is held invalid or
unenforceable in any jurisdiction, the remainder hereof, and the application of
such provision to such person or circumstance in any other jurisdiction or to
other persons or circumstances in any jurisdiction, shall not be affected
thereby, and to this end the provisions of this Agreement shall be severable.
SECTION 9.10 LEGAL FEES AND COSTS. If any party hereto institutes any
action or proceeding,
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whether before a court or arbitrator, to enforce any provision of this
Agreement, the prevailing party therein shall be entitled to received from the
losing party reasonable attorneys' fees and costs incurred in such action or
proceeding, whether or not such action or proceeding is prosecuted to judgment.
SECTION 9.11 FURTHER ASSURANCES. After Closing, the parties shall
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such instruments and shall take such other action as may be necessary
or advisable to carry out their obligations under this Agreement and under any
exhibit, document, certificate or other instrument delivered pursuant to this
Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the day and
year first above written.
SAFEGUARD SCIENTIFICS, INC.
By:_________________________________
Name:
Title
TEXTRON INC.
By:_________________________________
Name:
Title
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ANNEX A
DEFINITIONS
The following terms, as used in this Agreement, have the following
meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such other Person
"Applicable Law" means, with respect to any Person, any domestic or
foreign, federal, state or local 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 or
Representatives (in connection with such Representative's activities on behalf
of such Person or any of its Affiliates).
"Business Day" means a 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.
"Contracts" means all contracts, agreements, undertakings, leases,
licenses, commitments, sales and purchase orders and other instruments of any
kind, whether written or oral.
"Court Order" means any judgment, decree, injunction, order or ruling
of any Governmental Authority that is binding on any person or its property
under Applicable Law.
"Default" means (1) a violation, breach of or default under any
Contract, License, Court Order or Applicable Law, (2) the occurrence of an event
that with the passage of time or the giving of notice or both would constitute a
violation, breach of or default under any Contract, License, Court Order or
Applicable Law, or (3) the occurrence of an event that with or without the
passage of time or the giving of notice or both would give rise to a right of
termination, renegotiation or acceleration under any Contract or License.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means U.S. generally accepted accounting principles consistently
applied.
"Governmental Authority" means any foreign, domestic, 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.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or other adverse claim of
any kind in respect of such property or asset.
"Licenses" means licenses, franchises, permits, certificates,
approvals, easements, rights and other authorizations.
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"Litigation" means any lawsuit, action, arbitration, administrative or
other proceeding, criminal prosecution or governmental investigation or inquiry
involving or affecting the named Person, to which the named Person is a party or
by which it or any of such businesses, assets or liabilities may be bound or
affected.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust or other entity or
organization, including a Governmental Authority.
"Safeguard Material Adverse Effect" means any fact, condition, event,
development or occurrence which, individually or when taken together with all
other such facts, conditions, events, developments or occurrences, could
reasonably be expected to have a material adverse effect on the financial
condition, operating results or business of Safeguard and its Subsidiaries,
taken as a whole.
"SEC" means the U.S. Securities and Exchange Commission.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person.
2