CONFORMED COPY
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POST-CLOSING COVENANTS AGREEMENT
dated as of December 6, 1996,
among
ROCKWELL INTERNATIONAL CORPORATION,
THE BOEING COMPANY
BOEING NA, INC.
and
NEW ROCKWELL INTERNATIONAL CORPORATION
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
1.1. Definitions ......................................... 2
ARTICLE II
INDEMNIFICATION
2.1. Indemnification by Newco ........................... 3
2.2. Indemnification by the Company ..................... 6
2.3. Procedures Relating to Indemnification ............. 7
2.4. Certain Limitations ................................ 12
2.5. Limitation on Newco's Indemnification
Obligation under Section 2.1(a)(iv) ................ 13
2.6. Exclusivity of Tax Allocation Agreement ............ 14
ARTICLE III
OTHER AGREEMENTS
3.1. Transfer Taxes ..................................... 15
3.2. Conduct of Environmental Insurance Coverage
Claims .......................................... 15
3.3. Agreements with Respect to Acquiror Common
Stock Received by Newco Savings Plans ........... 17
3.4. Transitional Arrangements .......................... 18
3.5. Insurance .......................................... 18
3.6. DOE Contracts ...................................... 19
3.7. Reorganization Expenses ............................ 19
3.8. Conduct of Health Care Claims Audit ................ 19
3.9. Guaranty of Acquiror ............................... 21
3.10. Payments Adjustments to Contribution ............... 21
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ARTICLE IV
MISCELLANEOUS AND GENERAL
4.1. Modification or Amendment .......................... 22
4.2. Waiver; Remedies ................................... 22
4.3. Counterparts ....................................... 22
4.4. Governing Law ...................................... 22
4.5. Notices ............................................ 22
4.6. Entire Agreement ................................... 23
4.7. Certain Obligations ................................ 23
4.8. Assignment ......................................... 23
4.9. Captions ............................................ 24
4.10. Severability ....................................... 24
4.11. No Third Party Beneficiaries ....................... 24
4.12. Consent to Jurisdiction ............................ 24
ii
POST-CLOSING COVENANTS AGREEMENT dated as of December 6,
1996 (this "Agreement"), among ROCKWELL INTERNATIONAL CORPORATION, a
Delaware corporation (the "Company"), THE BOEING COMPANY, a Delaware
corporation ("Acquiror"), BOEING NA, INC., a Delaware corporation and
a wholly-owned subsidiary of Acquiror ("Sub"), and NEW ROCKWELL
INTERNATIONAL CORPORATION, a Delaware corporation ("Newco").
W I T N E S S E T H :
WHEREAS, the Company, Acquiror and Sub have entered into an
Agreement and Plan of Merger dated as of July 31, 1996 (the "Merger
Agreement"), providing for the Merger (as defined in the Merger
Agreement) of Sub with and into the Company;
WHEREAS, the Board of Directors of the Company has approved
an agreement and plan of distribution in the form attached as Annex A
to the Merger Agreement (the "Distribution Agreement"), which will be
entered into prior to the Effective Time (as defined in the Merger
Agreement), pursuant to which (a) all the assets of the Company, other
than the Retained Assets (as defined in the Distribution Agreement),
will be contributed to Newco and/or to one or more of the Operating
Subsidiaries (as defined in the Distribution Agreement) and all of the
liabilities of the Company, other than the Retained Liabilities (as
defined in the Distribution Agreement), will be assumed by Newco
and/or by one or more of the Operating Subsidiaries, all as provided
in the Distribution Agreement (the "Contribution"), and (b) all of the
issued and outstanding shares of Common Stock, par value $1.00 per
share, of Newco ("Newco Common Stock") and Class A Common Stock, par
value $1.00 per share, of Newco ("Newco Class A Common Stock"), in
each case with the associated Rights, will be distributed on a pro
rata basis to the Company's stockholders as provided in the
Distribution Agreement (the "Distribution");
WHEREAS, the execution and delivery of this Agreement by the
parties hereto is a condition to the obligations of the parties to the
Merger Agreement to consummate the Merger;
WHEREAS, the execution and delivery of this Agreement by the
parties hereto is a condition to the
obligations of the parties to the Distribution Agreement to
consummate the Distribution; and
WHEREAS, the parties to this Agreement have determined that
it is necessary and desirable to set forth certain agreements that
will govern certain matters that may arise following the Contribution,
the Distribution and the Merger.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth
herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. Capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings assigned to
such terms in the Merger Agreement or the Distribution Agreement, as
the case may be. As used in this Agreement, the following terms shall
have the following respective meanings:
"Acquiror Indemnitees" shall mean Acquiror, each Affiliate
of Acquiror, including any of its direct or indirect Subsidiaries
(including, after the Effective Time, the Retained Companies), and
each of their respective Representatives and each of the heirs,
executors, successors and assigns of any of the foregoing.
"Environmental Law" shall have the meaning ascribed thereto
in the Distribution Agreement.
"Environmental Proceeding" means any judicial,
administrative or regulatory proceeding (including, without
limitation, any investigation or inquiry) by or before any
Governmental Entity that has been instituted or commenced against an
Acquiror Indemnitee by a party other than an Acquiror Indemnitee based
on a violation of, or to enforce compliance with, any Environmental
Law.
"Filings" shall mean the Registration Statements, the Proxy
Statement-Prospectus, the Form 8-A and any other document filed or
required to be filed with the SEC in connection with the transactions
contemplated by the
Reorganization Agreements, or any preliminary or final form thereof
or any amendment or supplement thereto.
"Indemnifiable Losses" shall mean, subject to Section 2.4,
all losses, liabilities, damages, deficiencies, obligations, fines,
expenses, claims, demands, actions, suits, proceedings, judgments or
settlements, whether or not resulting from Third Party Claims (as
defined in Section 2.3(a)), including interest and penalties recovered
by a third party with respect thereto and out-of-pocket expenses and
reasonable attorneys' and accountants' fees and expenses incurred in
the investigation or defense of any of the same or in asserting,
preserving or enforcing any of the Indemnitee's rights hereunder,
suffered by an Indemnitee.
"Indemnitee" shall mean any of the Acquiror Indemnitees or
the Newco Indemnitees who or which may seek indemnification under this
Agreement.
"Newco Indemnitees" shall mean Newco, each Affiliate of
Newco, including any of its direct or indirect Subsidiaries, and each
of their respective Representatives and each of the heirs, executors,
successors and assigns of any of the foregoing.
ARTICLE II
INDEMNIFICATION
2.1. Indemnification by Newco. (a) Except as otherwise
specifically provided in any Reorganization Agreement and subject to
the provisions of this Article II, Newco shall indemnify, defend and
hold harmless the Acquiror Indemnitees from and against, and pay or
reimburse the Acquiror Indemnitees for, all Indemnifiable Losses, as
incurred:
(i) relating to or arising from the Contributed Assets
or the Assumed Liabilities, including without limitation the
Special Liabilities (including the failure by Newco or any member
of the Newco Group to pay, perform or otherwise discharge such
Assumed Liabilities in accordance with their terms), whether such
Indemnifiable Losses relate to or arise from events, occurrences,
actions, omissions, facts or circumstances occurring, existing or
asserted before, at or after the Effective Time;
(ii) arising from or based upon any untrue statement or
alleged untrue statement of a material fact contained in any of
the Filings or in the Consent Statement, or any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; but only in each case with respect to information
provided by the Company relating to the Newco Group or the
Company contained in or omitted from the Filings or the Consent
Statement;
(iii) relating to or arising from the breach by any
member of the Newco Group of any agreement or covenant contained
in a Reorganization Agreement which does not by its express terms
expire at the Effective Time or which is not by its express terms
required to be performed prior to the Effective Time;
(iv) relating to or arising from any breach of or
inaccuracy in any representation or warranty of the Company
contained in the Merger Agreement;
(v) relating to or arising from any Preexisting
Environmental Condition relating to the Aerospace Business, the
Defense Business or the Additional Retained Facilities;
(vi) relating to or arising from any actual or alleged
criminal violation of any law, rule or regulation of any
Governmental Entity by the Company or any of its Subsidiaries or
any director, officer, employee or agent of the Company or any of
its Subsidiaries ("Criminal Matters") occurring or alleged to
have occurred prior to the Time of Contribution;
(vii) relating to or arising from any breach of any
covenant or agreement of the Company contained in the Merger
Agreement assumed by Newco pursuant to the Distribution
Agreement;
(viii) relating to or arising from any claim that the
execution, delivery or performance by the Company of each
Reorganization Agreement to which it is or will be a party or the
consummation of the transactions contemplated thereby results in
a violation or breach of, or constitutes a default or
impermissible transfer under, or gives rise to any
right of termination, first refusal or consent under or gives
rise to any right of amendment, cancellation or acceleration of
any material benefit under, any Designated Contract listed on
Schedule 2.1(a)(viii);
(ix) relating to or arising from fines and penalties
and reasonable attorneys' and accountants' fees and expenses in
connection with any of the alleged safety violations or alleged
improper storage and/or disposal of hazardous waste claims
referred to in item 5(a) of Section 4.1(n) of the Company
Disclosure Schedule pertaining to the explosion at Santa ▇▇▇▇▇▇,
California in 1994; or
(x) incurred in connection with the enforcement by the
Acquiror Indemnitees of their rights to be indemnified, defended
and held harmless under this Agreement.
(b) RAN Contract. The Retained Assets include a Contract
(Contract R1000) (the "RAN Contract") between Rockwell Australia
Limited and the Australian Submarine Corporation. Newco shall
indemnify, defend and hold harmless the Acquiror Indemnitees for 80%
of any decrease in the profit before tax realized by Rockwell
Australia Limited on the RAN Contract below 40.0 million Australian
dollars (A$40,000,000) as well as 80% of any loss in respect of the
RAN Contract. Likewise, the Company shall pay to Newco 80% of any
increase in the profit before tax realized by Rockwell Australia
Limited on the RAN Contract above 40.0 million Australian dollars
(A$40,000,000). The determination of profit before tax or loss for
purposes of this Section 2.1(b) shall be based upon the next quarterly
Estimate at Completion ("EAC") for the RAN Contract prepared after
expiration of three (3) years from the Effective Time. The
determination of Rockwell Australia Limited's profit before tax or
loss shall be determined by the Company using the same accounting
methods, policies, practices, procedures, classifications, judgments,
estimation methodologies and accounting standards as were utilized in
the preparation of the Retained Business Audited Financial Statements.
All payments made pursuant to this Section 2.1(b) shall be computed on
a tax-effected basis to take into account the benefit of any
reduction, or detriment of any increase, in Taxes payable by Rockwell
Australia Limited attributable to the decrease in the profit before
tax (including any loss) or increase in the profit before tax realized
by Rockwell Australia Limited below or above
A$40,000,000. All determinations of the amount (and timing) of any
such benefit or detriment shall be determined using principles
analogous to those contained in Section 6.6 of the Tax Allocation
Agreement, and all payments made pursuant to this Section 2.1(b) shall
be governed by Section 2.3 of this Agreement and by Section 6.6(a) of
the Tax Allocation Agreement. The obligations of Newco and the Company
to pay the amounts set forth in this Section 2.1(b) shall be
determined without regard to the acts or omissions of the Company or
any Subsidiary with respect to performance of the RAN Contract prior
to, at or after the Effective Time. The Company will provide Newco
with copies of all quarterly EAC's in respect of the RAN Contract and
access to such books and records (including but not limited to
accountants' work papers) and personnel familiar with the RAN Contract
and the accounting therefor as Newco shall reasonably request. To the
extent Newco disputes the EAC, the designees of the chief financial
officers of Acquiror and Newco shall attempt a good faith resolution
of such dispute. To the extent not so resolved within 90 days
following Newco's receipt of the determination of such profit or loss,
such dispute will be referred for resolution to the chief financial
officers of Acquiror and Newco, and failing their resolution of such
dispute within 90 days after such referral, to the chief executive
officers of Acquiror and Newco. To the extent the dispute is not so
resolved within 90 days following such referral, Acquiror and Newco
will submit such dispute to mediation using the procedures of the
Center for Public Resources, before commencing litigation to resolve
such dispute.
2.2. Indemnification by the Company. Except as otherwise
specifically provided in any Reorganization Agreement and subject to
the provisions of this Article II, the Company shall indemnify, defend
and hold harmless the Newco Indemnitees from and against, and pay or
reimburse the Newco Indemnitees for, all Indemnifiable Losses, as
incurred:
(i) relating to or arising from the Retained Assets or
the Retained Liabilities (including the failure by the Company or
any member of the Company Group to pay, perform or otherwise
discharge such Retained Liabilities in accordance with their
terms), whether such Indemnifiable Losses relate to or arise from
events, occurrences, actions, omissions, facts or circumstances
occurring, existing or asserted before, at or after the Effective
Time;
(ii) arising from or based upon any untrue statement or
alleged untrue statement of a material fact contained in any of
the Filings or in the Consent Statement, or any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading; but only in each case with respect to information
provided by Acquiror relating to Acquiror or any of its
Subsidiaries other than the Company Group contained in or omitted
from the Filings or the Consent Statement;
(iii) relating to or arising from the breach by
Acquiror or any member of the Company Group of any agreement or
covenant contained in a Reorganization Agreement (other than, in
the case of the Company Group, an agreement or covenant contained
in the Merger Agreement assumed by Newco pursuant to the
Distribution Agreement) which does not by its express terms
expire at the Effective Time or which is not by its express terms
required to be performed prior to the Effective Time; or
(iv) incurred in connection with the enforcement by the
Newco Indemnitees of their rights to be indemnified, defended and
held harmless under this Agreement.
2.3. Procedures Relating to Indemnification. (a) In order
for an Indemnitee to be entitled to any indemnification provided for
under this Agreement in respect of, arising out of or involving a
claim made by any Person who is not an Indemnitee against the
Indemnitee (a "Third Party Claim"), such Indemnitee must notify the
party who may become obligated to provide indemnification hereunder
(the "indemnifying party") in writing, and in reasonable detail, of
the Third Party Claim reasonably promptly, and in any event within 20
business days after receipt by such Indemnitee of written notice of
the Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder
except to the extent the indemnifying party shall have been actually
prejudiced as a result of such failure (except that the indemnifying
party shall not be liable for any expenses incurred during the period
in which the Indemnitee failed to give such notice); and provided
further, however, that with respect to any matter for which Newco is
the indemnifying
party, Newco shall be deemed to have received notice with respect to
all matters by or against any member of the Company Group that were
concluded or initiated prior to, or otherwise pending at, the Time of
Contribution. After any required notification (if applicable), the
Indemnitee shall deliver to the indemnifying party, promptly after the
Indemnitee's receipt thereof, copies of all notices and documents
(including court papers) received by the Indemnitee relating to the
Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee,
the indemnifying party will be entitled to participate in the defense
thereof and, if it so chooses, to assume the defense thereof (at the
expense of the indemnifying party) with counsel selected by the
indemnifying party and reasonably satisfactory to the Indemnitee;
provided, however, that in case of a claim made by any person against
an Indemnitee relating to a Special Liability (a "Special Liability
Claim"), Newco (at Newco's expense) shall assume the defense thereof
with counsel selected by Newco. Should the indemnifying party so elect
(or, in the case of a Special Liability Claim, be obligated) to assume
the defense of a Third Party Claim, the indemnifying party will not be
liable to the Indemnitee for any legal expenses subsequently incurred
(or, in the case of a Special Liability Claim, incurred) by the
Indemnitee in connection with the defense thereof (unless, in case of
a Special Liability Claim, Newco breaches its obligation to assume the
defense thereof). If the indemnifying party assumes (or, in the case
of a Special Liability Claim, is obligated to assume) such defense,
the Indemnitee shall have the right to participate in the defense
thereof and to employ counsel, at its own expense, separate from the
counsel employed by the indemnifying party, it being understood that
the indemnifying party shall control such defense. The indemnifying
party shall be liable for the fees and expenses of counsel employed by
the Indemnitee for any period during which the indemnifying party has
not assumed (or, in the case of a Special Liability Claim, is in
breach of its obligation to assume) the defense thereof (other than
during any period in which the Indemnitee shall have failed to give
notice of the Third Party Claim as provided above). If the
indemnifying party chooses (or, in the case of a Special Liability
Claim, is obligated) to defend or prosecute a Third Party Claim, all
the parties hereto shall cooperate in the defense or prosecution
thereof, which cooperation shall include the retention in accordance
with the Distribution Agreement and (upon the
indemnifying party's request) the provision to the indemnifying party
of records and information which are reasonably relevant to such Third
Party Claim, and making employees available on a mutually convenient
basis to provide additional information and explanation of any
material provided hereunder. If the indemnifying party chooses (or, in
the case of a Special Liability Claim, is obligated) to defend or
prosecute any Third Party Claim, the Indemnitee will agree to any
settlement, compromise or discharge of such Third Party Claim which
the indemnifying party may recommend and which by its terms obligates
the indemnifying party to pay the full amount of liability in
connection with such Third Party Claim; provided, however, that,
without the Indemnitee's consent, the indemnifying party shall not
consent to entry of any judgment or enter into any settlement (w) that
provides for injunctive or other nonmonetary relief affecting the
Indemnitee, (x) that does not include as an unconditional term thereof
the giving by each claimant or plaintiff to such Indemnitee of a
release from all liability with respect to such claim, (y) in the case
of a Criminal Matter or (z) that involves an allegation of conduct
which could result in the suspension or debarment of the Indemnitee
from contracting with the United States Government. Whether or not the
indemnifying party shall have assumed the defense of a Third Party
Claim, the Indemnitee shall not admit any liability with respect to,
or settle, compromise or discharge, such Third Party Claim without the
indemnifying party's prior written consent (which consent shall not be
unreasonably withheld). Notwithstanding the foregoing, Newco shall be
solely responsible for, and shall pay directly, the fees and expenses
of its counsel in connection with any Special Liability Claim and
shall reimburse the Company on a monthly basis for any support or
other services provided at Newco's request in respect of any Special
Liability Claim in an amount equal to the Company's costs thereof
determined in accordance with the cost accounting standards applicable
to Government Contracts.
(c) In order for an Indemnitee to be entitled to any
indemnification provided for under this Agreement in respect of a
claim that does not involve a Third Party Claim, the Indemnitee shall
deliver notice of such claim with reasonable promptness to the
indemnifying party. The failure by any Indemnitee so to notify the
indemnifying party shall not relieve the indemnifying party from any
liability which it may have to such Indemnitee under this Agreement,
except to the extent that the indemnifying party
shall have been actually prejudiced by such failure. Any notice
pursuant to this Section 2.3(c) shall contain a statement, in
prominent and conspicuous type, that if the indemnifying party does
not dispute its liability to the Indemnitee with respect to the claim
made in such notice by notice to the Indemnitee prior to the
expiration of a 30-calendar-day period following the indemnifying
party's receipt of the second notice of such claim, the claim shall be
conclusively deemed a liability of the indemnifying party. If the
Indemnitee has provided the indemnifying party two such notices not
less than 30 days apart and the indemnifying party does not notify the
Indemnitee prior to the expiration of a 30-calendar-day period
following its receipt of the second such notice that the indemnifying
party disputes its liability to the Indemnitee under this Agreement,
such claim specified by the Indemnitee in such notice shall be
conclusively deemed a liability of the indemnifying party under this
Agreement and the indemnifying party shall pay the amount of such
liability to the Indemnitee on demand or, in the case of any notice in
which the amount of the claim (or any portion thereof) is estimated,
on such later date when the amount of such claim (or such portion
thereof) becomes finally determined. If the indemnifying party has
timely disputed its liability with respect to such claim, as provided
above, the indemnifying party and the Indemnitee shall proceed in good
faith to negotiate a resolution of such dispute and, if not resolved
through negotiations, such dispute shall be resolved by litigation in
an appropriate court of competent jurisdiction.
(d) Unless the Company or the appropriate Retained
Subsidiary shall have made a good faith determination that a
particular Indemnifiable Loss relating to or arising from a
Preexisting Environmental Condition is not eligible for treatment as
an allowable overhead cost or other allowable cost (in which case, the
Company or the appropriate Retained Subsidiary may request Newco to
indemnify, defend and hold it harmless without complying with the
following additional procedures), Newco shall have no obligation to
indemnify, defend or hold harmless any Acquiror Indemnitee hereunder
in respect of an Indemnifiable Loss arising from or relating to a
Preexisting Environmental Condition unless (i) the Company or the
appropriate Retained Subsidiary has submitted a claim for such
Indemnifiable Loss as an allowable overhead cost or other allowable
cost in connection with relevant Government Contracts and used its
reasonable best efforts to obtain a favorable determination
of such claim, (ii) such claim has been disallowed based on an act or
omission by the Company or any of its Subsidiaries prior to the
Effective Time, (iii) the Company or the appropriate Retained
Subsidiary has given Newco timely notice of such disallowance and (iv)
Newco has been permitted, at its own expense, to direct and control
the appeal of such disallowance until finally determined pursuant to
one or more final and nonappealable orders, decrees or judgments or by
one or more settlement agreements approved by Newco and the Company,
such approval not to be unreasonably withheld by the Company.
Notwithstanding anything in this Agreement to the contrary,
Indemnifiable Losses relating to or arising from Preexisting
Environmental Conditions shall be limited to costs and expenses of
containing, removing, responding to, remediating, cleaning-up and
abating Preexisting Environmental Conditions, natural resource damage
claims, penalties and fines, and any administrative oversight costs
incurred by any Governmental Entity actually paid by an Acquiror
Indemnitee following the Time of Contribution relating to or arising
from the presence, use, treatment, Release or threatened Release of
any Hazardous Substance on or originating from a facility of the
Retained Business prior to the Time of Contribution, provided that any
such containment, removal, response, remediation, clean-up or
abatement shall be (i) required by an enforcement order or decree
entered by a Governmental Entity as a result of an Environmental
Proceeding; (ii) necessary to comply with an Environmental Law in
response to an Environmental Proceeding or threatened Environmental
Proceeding; or (iii) in response to a condition which in the Company's
reasonable judgment is likely to result in an Environmental Proceeding
if no responsive action is taken. The costs and expenses for which
Newco shall be obligated to indemnify, defend and hold harmless the
Acquiror Indemnitees shall be limited to those costs and expenses
which are necessary to achieve compliance with the minimum
requirements of Environmental Law based upon a reasonable low cost
approach under the circumstances. Without prejudice to the rights and
obligations of the parties under Section 2.3(a), (b) or (c), the
Company shall provide Newco with all information reasonably requested
by Newco to allow Newco to evaluate all proposed responsive actions in
connection with any Preexisting Environmental Condition. Newco shall
have no obligation to indemnify, defend or hold harmless an Acquiror
Indemnitee in respect of any Preexisting Environmental Condition for
(i) any cost or expense incurred in connection with the normal,
day-to-day
operation, including maintenance, of the facilities of the Retained
Business (except for groundwater monitoring costs or other maintenance
expenses related to any investigation or remediation), and including
any discharges pursuant to, and any closure or post-closure
obligations under any permit or authorization granted by a
Governmental Entity unless such post-closure obligation is related to
or gives rise to an obligation to investigate, monitor or remediate
under Environmental Law, or (ii) any cost or expense relating to or
arising from any change in use of a facility of the Retained Business
or acts or omissions of any Acquiror Indemnitee or other person who is
not a member of the Newco Group after the Time of Contribution which
increase the scope of any required containment, removal, response,
remediation, clean-up or abatement or otherwise increase the liability
of Newco hereunder.
(e) Unless the Company or the appropriate Retained
Subsidiary shall have made a good faith determination that a
particular Indemnifiable Loss relating to or arising from a Criminal
Matter is not eligible for treatment as an allowable overhead cost or
other allowable cost (in which case, the Company or the appropriate
Retained Subsidiary may request Newco to indemnify, defend and hold it
harmless without complying with the following additional procedures),
Newco shall have no obligation to indemnify, defend or hold harmless
any Acquiror Indemnitee hereunder in respect of an Indemnifiable Loss
arising from or relating to a Criminal Matter unless (i) the Company
or the appropriate Retained Subsidiary has submitted a claim for such
Indemnifiable Loss as an allowable overhead cost or other allowable
cost in connection with relevant Government Contracts and used its
reasonable best efforts to obtain a favorable determination of such
claim, (ii) such claim has been disallowed based on an act or omission
by the Company or its Subsidiaries prior to the Effective Time, (iii)
the Company or the appropriate Retained Subsidiary has given Newco
prompt notice of such disallowance and (iv) Newco has been permitted,
at its own expense, to direct and control the appeal of such
disallowance until finally determined pursuant to one or more final
and nonappealable orders, decrees or judgments or by one or more
settlement agreements approved by Newco and the Company, such approval
not to be unreasonably withheld by the Company. Newco's obligation to
indemnify Acquiror Indemnitees for Criminal Matters pursuant to
Section 2.1(a)(vi) shall be limited to amounts paid for fines or
penalties and reasonable attorneys' and accountants' fees and expenses
that are not allowable or
that are not allowed as an overhead cost or other allowable cost in
connection with a Government Contract. Any Criminal Matter for which
indemnification may be sought pursuant to Section 2.1(a)(vi) shall be
a Third Party Claim for purposes of this Agreement.
2.4. Certain Limitations. (a) The amount of any
Indemnifiable Losses or other liability for which indemnification is
provided under this Agreement shall be net of any amounts actually
recovered by the Indemnitee from third parties (including, without
limitation, amounts actually recovered under insurance policies) with
respect to such Indemnifiable Losses or other liability. Any
indemnifying party hereunder shall be subrogated to the rights of the
Indemnitee upon payment in full of the amount of the relevant
Indemnifiable Loss. An insurer who would otherwise be obligated to pay
any claim shall not be relieved of the responsibility with respect
thereto or, solely by virtue of the indemnification provisions hereof,
have any subrogation rights with respect thereto. If any Indemnitee
recovers an amount from a third party in respect of an Indemnifiable
Loss for which indemnification is provided in this Agreement after the
full amount of such Indemnifiable Loss has been paid by an
indemnifying party or after an indemnifying party has made a partial
payment of such Indemnifiable Loss and the amount received from the
third party exceeds the remaining unpaid balance of such Indemnifiable
Loss, then the Indemnitee shall promptly remit to the indemnifying
party the excess (if any) of (A) the sum of the amount theretofore
paid by the indemnifying party in respect of such Indemnifiable Loss
plus the amount received from the third party in respect thereof, less
(B) the full amount of such Indemnifiable Loss or other liability.
(b) The amount of any Indemnifiable Losses or other
Liability for which indemnification is provided under this Agreement
or any other amounts payable or reimbursable by one party to another
under this Agreement shall be increased or decreased to take account
of any net Tax (as defined in the Tax Allocation Agreement) cost or
any net Tax benefit in a manner analogous to that described in Section
6.6 of the Tax Allocation Agreement.
2.5. Limitation on Newco's Indemnification Obligation under
Section 2.1(a)(iv). (a) Newco shall not have any liability under
Section 2.1(a)(iv) unless the aggregate of all Indemnifiable Losses
for which Newco would, but for this Section 2.5, be liable under
Section 2.1(a)(iv)
exceeds on a cumulative pre-tax basis an amount equal to $20,000,000
(the "Basket Amount"); provided, however, that (i) if Indemnifiable
Losses for which Newco would, but for this Section 2.5, be liable
under Section 2.1(a)(iv) as a result of the breach of or the
inaccuracy in any representation or warranty which arises from a
particular state of facts or event exceed $5,000,000 on a pre-tax
basis, Newco shall be liable under Section 2.1(a)(iv) for the entire
amount of such Indemnifiable Losses, and such Indemnifiable Losses
shall not be taken into account in calculating whether Newco's
cumulative liability under Section 2.1(a)(iv) had exceeded the Basket
Amount or the Threshold Amount (as defined below), and (ii) if the
aggregate of all Indemnifiable Losses for which Newco would, but for
this Section 2.5, be liable under Section 2.1(a)(iv) exceeds on a
cumulative pre-tax basis the Basket Amount, Newco's liability under
Section 2.1(a)(iv) shall be equal to $10,000,000 (the "Threshold
Amount") plus any Indemnifiable Losses under Section 2.1(a)(iv) in
excess of $20,000,000.
(b) Newco shall not have any liability under Section
2.1(a)(iv) with respect to the breach of or inaccuracy in any
representation or warranty which arises from a particular state of
facts or event if the Indemnifiable Losses resulting therefrom are
less than $250,000 on a pre-tax basis, and such Indemnifiable Losses
shall not be taken into account in calculating whether Newco's
cumulative liability under Section 2.1(a)(iv) had exceeded the Basket
Amount or the Threshold Amount.
(c) No Indemnifiable Losses actually paid by Newco pursuant
to any provision other than Section 2.1(a)(iv) and no Indemnifiable
Losses relating to or arising from a Preexisting Environmental
Condition or a Criminal Matter for which Newco is not yet obligated to
provide indemnity pursuant to Section 2.1(a)(v) or Section 2.1(a)(vi)
shall be deemed to be an Indemnifiable Loss relating to or arising
from a breach of or inaccuracy in a representation or warranty of the
Company contained in the Merger Agreement for purposes of determining
whether the aggregate amount of Indemnifiable Losses relating to or
arising from breaches of or inaccuracies in such representations or
warranties exceeds the Basket Amount or the Threshold Amount. Newco
shall not have any liability under Section 2.1(a)(iv) with respect to
the breach of or inaccuracy in any representation or warranty unless
notice of any such breach or inaccuracy is given pursuant to Section
2.3 prior to the expiration of the survival period
provided in the Merger Agreement for the relevant representation or
warranty.
2.6 Exclusivity of Tax Allocation Agreement. Notwithstanding
anything in this Agreement to the contrary, the Tax Allocation
Agreement shall be the exclusive agreement among the parties with
respect to all Tax matters, including indemnification in respect of
Tax matters.
ARTICLE III
OTHER AGREEMENTS
3.1. Transfer Taxes. Newco and Acquiror shall comply with
Section 2.2(h) of the Merger Agreement.
3.2. Conduct of Environmental Insurance Coverage Claims. (a)
Pursuant to the Distribution Agreement, the Company will retain as
part of the Retained Assets the Environmental Coverage Claims (as
defined below) to the extent that they have not been resolved prior to
the time of Contribution. As used herein, "Environmental Coverage
Claims" shall mean all existing and future claims, as the same may be
amended from time to time, by the Company against any and all
insurance companies that have provided (or that the Company or Newco
alleges have provided) to the Company, its predecessors or its or
their affiliates, insurance coverage in respect of environmental
matters as the same may relate to the businesses of the Company, its
predecessors or its or their affiliates as now or previously owned or
operated (including without limitation any discontinued or divested
operations, including Divested Businesses) at any time prior to the
Effective Time, including without limitation the claims asserted in
the action against Aetna Casualty et al. filed in the Superior Court
of California for Los Angeles County and any other claims that may be
asserted by or on behalf of the Company against any provider or
alleged provider of insurance coverage for such environmental matters
for any period prior to the Effective Time. The Company agrees to use
diligent efforts to prosecute the Environmental Coverage Claims in
accordance with this Section 3.2 until the same are finally determined
pursuant to one or more final and nonappealable orders, decrees or
judgments by a court of competent jurisdiction or by one or more
settlement agreements approved by Newco in its sole discretion. The
Company agrees (i) that Newco and such legal counsel as Newco may
from time to time designate shall have the exclusive right to control
and to direct the prosecution of all Environmental Coverage Claims (it
being understood and agreed that in connection with the prosecution or
settlement of any Environmental Coverage Claims, Newco may in its sole
discretion agree on behalf of the Company to surrender, cancel or
otherwise limit any related insurance policies or coverages thereunder
in whole or in part or as to any particular business, property, period
or event), (ii) to make available such personnel, records and other
resources in its possession or reasonably accessible to it as shall be
reasonably required by Newco or its counsel to support the prosecution
of the Environmental Coverage Claims, and (iii) except as may
otherwise be required by law or judicial process, not to make any
admission in respect of the Environmental Coverage Claims or take any
action in respect thereof without the prior written consent of Newco.
The Company shall pay to Newco any and all amounts received by it in
respect of the Environmental Coverage Claims as and when the same are
received, provided that the Company shall be entitled to retain that
portion of the amount, if any, received in respect of the
Environmental Coverage Claims as the Company shall be required to pay
and/or credit to the United States Government in accordance with the
agreement to be entered into between the Company and the appropriate
United States Government contracting officer referred to in Section
3.2(b).
(b) If, at the Time of Contribution, the Company has reached
an agreement with the appropriate government contracting officer on
the amount required to be paid to the United States Government in
respect of the Environmental Coverage Claims but such amount has not
been paid and/or credited in full by the Company, then Newco shall
remit the unpaid balance to the Company on or before the date that
payment is required to be made and/or credited by the Company to the
United States Government. The Company agrees that if, at the Time of
Contribution, the Company has not entered into such an agreement with
the appropriate government contracting officer, Newco and such legal
counsel as Newco may from time to time designate shall have the
exclusive right to control and to direct the negotiation of such
agreement. The Company shall enter into any such agreement with the
appropriate United States Government contracting officer which Newco
may recommend, provided that Newco pays to the Company on or before
the date that payment is required to be made and/or credited by the
Company to the United States Government an amount equal to the excess,
if
any, of the amount that the Company is required to pay and/or credit
to the United States Government over the amount received by the
Company after the Effective Time in respect of the Environmental
Coverage Claims that has not previously been remitted to Newco.
(c) Newco shall be solely responsible for and shall pay
directly the fees and expenses (including legal fees and expenses) of
pursuing the Environmental Coverage Claims and shall reimburse the
Company periodically for any support or other services provided at
Newco's request in respect of the Environmental Coverage Claims in an
amount equal to the Company's costs thereof determined in accordance
with cost accounting standards applicable to Government Contracts.
(d) Taxes on amounts received and Tax benefits and Tax costs
in respect of amounts paid and/or credited with respect to the
Environmental Coverage Claims and the related agreement with the
United States Government shall be allocated between the Company and
Newco in the manner set forth in Section 5.5 of the Tax Allocation
Agreement.
3.3. Agreements with Respect to Acquiror Common Stock
Received by Newco Savings Plans. (a) Acquiror and the Newco Savings
Plan and any other savings plan sponsored or maintained by Newco or
any of its Affiliates (the "Savings Plans") shall cooperate with each
other in supplying such information as may be necessary for any of
such parties to complete and file any information reporting forms
presently or hereafter required by the SEC or any commissioner or
other authority administering the "blue sky" or securities laws of any
jurisdiction where the shares of Acquiror Common Stock received by the
Savings Plans in the Merger (the "Shares") are proposed to be sold
which are required to be filed as a condition to the availability of
an exemption from registration or qualification of an offer or sale of
the Shares under the Securities Act, or any such "blue sky" or
securities laws.
(b) Until the earlier of two years from the Effective Time
or the sale by the Savings Plans of all Shares, Acquiror shall file in
a timely manner all reports contemplated by Rule 144 (c)(1) under the
Securities Act as satisfying the condition that adequate public
information with respect to Acquiror is available.
(c) The provisions of this Section 3.3 shall not be
applicable if Newco or the Company has obtained a "No-Action" letter
or other written advice from the staff of the SEC that the Savings
Plans may sell the Shares publicly at any time after the Effective
Time without limitation in terms of the volume of Shares that may be
sold, the manner in which the Shares may be sold and the information
that must be publicly available with respect to Acquiror in order to
permit such sale and without any requirement that the Savings Plans
file any notice of sale of Shares or intention to sell Shares with the
SEC other than any filings required pursuant to Section 13(d) of the
Exchange Act in respect of the beneficial ownership by the Savings
Plans of Acquiror Common Stock. Newco agrees to use its reasonable
best efforts to obtain such "No-Action" letter or other written
advice.
3.4. Transitional Arrangements. Concurrently herewith Newco,
the Company and Acquiror will enter into an agreement with respect to
certain transitional arrangements (the "Transition Agreement") in
conformity with the Outline of Terms set forth as Schedule 3.4 and
such other transitional arrangements as shall be mutually agreed upon.
3.5. Insurance. (a) Except as otherwise specifically
provided in any Reorganization Agreement or the Transition Agreement,
with respect to any loss, liability or damage with respect to the
Retained Assets arising out of events occurring prior to the Time of
Contribution (other than any loss, liability or damage arising out of
or relating to any Environmental Coverage Claims) for which Newco or
any of its Subsidiaries would be entitled to assert a claim for
recovery under any third-party "occurrence basis" policy of insurance
maintained prior to the Time of Contribution ("Occurrence Basis
Insurance") in accordance with the terms thereof, at the request of
Acquiror, Newco will use reasonable efforts in asserting, or to assist
Acquiror in asserting, claims under such Occurrence Basis Insurance
with respect to such loss, liability or damage; provided that (i) all
of Newco's costs and expenses incurred in connection with the
foregoing are promptly paid by Acquiror, (ii) Newco and its
Subsidiaries may, at any time, without liability or obligation to
Acquiror, amend, buy-out, extinguish liability under or otherwise
modify any Occurrence Basis Insurance (and such claims shall be
subject to any such amendments, buy-outs, extinguishments and
modifications) and (iii) such claims shall be subject to (and recovery
thereon shall be reduced by the amount of) any
applicable deductibles, retentions, self-insurance provisions or any
payment or reimbursement obligations of Newco or any of its
Subsidiaries or Affiliates in respect thereof.
(b) Except as otherwise specifically provided in any
Reorganization Agreement or the Transition Agreement, with respect to
any loss, liability or damage with respect to the Contributed Assets
arising out of events occurring prior to the Time of Contribution
(other than any loss, liability or damage arising out of or relating
to any Environmental Coverage Claims) for which the Company or any of
the Retained Subsidiaries would be entitled to assert a claim for
recovery under any Occurrence Basis Insurance in accordance with the
terms thereof, at the request of Newco, Acquiror will use reasonable
efforts in asserting, or to assist Newco in asserting, claims under
such Occurrence Basis Insurance with respect to such loss, liability
or damage; provided that (i) all of Acquiror's costs and expenses
incurred in connection with the foregoing are promptly paid by Newco,
(ii) Acquiror and its Subsidiaries may, at any time, without liability
or obligation to Newco, amend, buy-out, extinguish liability under or
otherwise modify any Occurrence Basis Insurance (and such claims shall
be subject to any such amendments, buy-outs, extinguishments and
modifications) and (iii) such claims shall be subject to (and recovery
thereon shall be reduced by the amount of) any applicable deductibles,
retentions, self-insurance provisions or any payment or reimbursement
obligations of Acquiror or any of its Subsidiaries or Affiliates in
respect thereof.
3.6. DOE Contracts. As soon as practicable following the
Effective Time, Newco and the Company shall take such actions as shall
be consistent with the advance agreements referred to in Section
9.1(e) of the Distribution Agreement.
3.7. Reorganization Expenses. Except as otherwise expressly
provided in the Reorganization Agreements (including but not limited
to the last sentence of Section 2.2(b) of the Merger Agreement and
Sections 2.2(h), 4.1(p), 4.2(j) and 5.13 of the Merger Agreement and
Section 5.3 of the Distribution Agreement), Acquiror and Newco (and
not the Company) shall be responsible for and agree to pay all
reorganization expenses of the Company directly related to the
Contribution, the Distribution and the Merger in accordance with
Schedule 3.7
hereto, provided that the Company may, prior to the Effective Time,
pay any such expenses that are otherwise the responsibility of Newco.
3.8. Conduct of Health Care Claims Audit. (a) Pursuant to
the Distribution Agreement, Newco will receive as part of the
Contributed Assets the Health Care Claims (as defined below). As used
herein, "Health Care Claims" shall mean all existing and future claims
arising out of audits of health care claims paid by the Company for
any period prior to the Effective Time made by the Company (or if
after the Effective Time, Newco) against any and all health care
administrators ("Health Care Administrators") that have provided to
the Company, its predecessors or its or their affiliates, health care
administration services in respect of the employees of the Company,
its predecessors or its or their affiliates as now or previously owned
or operated (including without limitation any discontinued or divested
operations, including Divested Businesses) at any time prior to the
Effective Time, including, without limitation, the claims asserted in
the pending audits of Metropolitan Insurance Company for the years
1993-1994 and Value Rx Pharmacy Program, Inc. for the years 1993-1995
and any other claims that may be asserted by or on behalf of the
Company (or if after the Effective Time, Newco) against any Health
Care Administrator for any period prior to the Effective Time. Newco
agrees to use diligent efforts to prosecute the Health Care Claims in
accordance with this Section 3.8 until the same are finally settled by
Newco in its sole discretion. The Company agrees (i) that Newco shall
have the exclusive right to control and to direct the audit of the
Health Care Administrators and the negotiation of all settlements of
the Health Care Claims, (ii) to make available such personnel, records
and other resources in its possession or reasonably accessible to it
as shall be reasonably required by Newco to support the prosecution of
the Health Care Claims and (iii) not to make any admission or
settlement in respect of the Health Care Claims or take any action in
respect thereof without the prior written consent of Newco. Newco
shall pay to the Company as and when the same are received by Newco an
equitable allocation of the net proceeds from settlement of the Health
Care Claims.
(b) Newco shall be solely responsible for and shall pay
directly the fees and expenses (including legal fees and expenses) of
pursuing the Health Care Claims and
shall reimburse the Company periodically for any support or other
services provided at Newco's request in respect of the Health Care
Claims in an amount equal to the Company's costs thereof determined in
accordance with cost accounting standards applicable to Government
Contracts.
(c) Taxes on amounts received and Tax benefits and Tax costs
in respect of amounts paid and/or credited with respect to the Health
Care Claims and the related agreement with the United States
Government shall be allocated between the Company and Newco in the
manner set forth in Section 5.5 of the Tax Allocation Agreement.
3.9. Guaranty of Acquiror. Acquiror, for itself and its
successors in interest and assigns, hereby unconditionally and
irrevocably guarantees to Newco and its successors in interest and
assigns the full and faithful performance and observation by the
Company under the Reorganization Agreements (other than the Merger
Agreement) and the Transition Agreement of all covenants, conditions
and agreements (other than any indemnification obligations of the
Company in respect of Retained Assets or Retained Liabilities) in the
Reorganization Agreements (other than the Merger Agreement) and the
Transition Agreement to be performed and observed by the Company after
the Effective Time without requiring any notice of nonpayment,
nonperformance or nonobservance or proof of notice or demand whereby
to charge Acquiror therefor, all of which Acquiror hereby expressly
waives. This is a continuing guaranty and shall remain in effect
notwithstanding any bankruptcy, reorganization or insolvency of the
Company, or any successor in interest or assignee thereof, or any
disaffirmance or abandonment by a trustee thereof. Acquiror hereby
waives notice of acceptance of this Guaranty. Acquiror hereby agrees
to indemnify, defend and hold harmless Newco for all Indemnifiable
Losses, as incurred, relating to or arising from any breach or
inaccuracy in the representations and warranties contained in Sections
4.2(j) and 4.2(d)(iii) of the Merger Agreement. Effective as of the
Effective Time, Acquiror will execute and deliver guarantees of the
Company's performance and obligations under the Designated Contracts
set forth in Schedule 2.1(a)(viii) to the counterparties on such
Contracts.
3.10. Payments Adjustments to Contribution. It is the
intention of the parties to this Agreement that payments and asset
transfers made by the parties to each
other after the Effective Time pursuant to the Reorganization
Agreements are to be treated as relating back to the Contribution as
an adjustment to the assets and liabilities contributed thereunder,
and the parties shall take positions consistent with such intention
with any Taxing Authority (as defined in the Tax Allocation
Agreement), unless with respect to any payment any party receives an
opinion of counsel to the effect that there is no substantial
authority for such a position.
ARTICLE IV
MISCELLANEOUS AND GENERAL
4.1. Modification or Amendment. The parties hereto may
modify or amend this Agreement only by written agreement executed and
delivered by duly authorized officers of the respective parties.
4.2. Waiver; Remedies. No delay on the part of any party
hereto in exercising any right, power or privilege hereunder will
operate as a waiver thereof, nor will any waiver on the part of any
party hereto of any right, power or privilege hereunder operate as a
waiver of any other right, power or privilege hereunder, nor will any
single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder. No waiver will be effective
hereunder unless it is in writing. Unless otherwise provided, the
rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which the parties may otherwise
have at law or in equity.
4.3. Counterparts. For the convenience of the parties, this
Agreement may be executed in any number of separate counterparts, each
such counterpart being deemed to be an original instrument, and all
such counterparts shall together constitute the same agreement.
4.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York applicable to contracts made and to be performed entirely within
such State, without regard to the conflicts of law principles of such
State.
4.5. Notices. Any notice, request, instruction or other
communication to be given hereunder by any party to
any other shall be in writing and shall be deemed to have been duly
given (i) on the date of delivery if delivered personally, or by
telecopy or telefacsimile, upon confirmation of receipt, (ii) on the
first business day following the date of dispatch if delivered by
Federal Express or other nationally reputable next-day courier
service, or (iii) on the third business day following the date of
mailing if delivered by registered or certified mail, 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:
(a) If to Newco:
NEW ROCKWELL INTERNATIONAL CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Senior Vice President,
General Counsel and Secretary
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Acquiror, the Company or Sub:
BOEING NA, INC.
▇/▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
M/S 13-08
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Vice President & General
Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
4.6. Entire Agreement. The Reorganization Agreements
(including the Annexes and Schedules thereto), the Transition
Agreement and the Confidentiality Agreement constitute the entire
agreement, and supersede all other prior agreements, understandings,
representations and warranties, both written and oral, among the
parties, with respect to the subject matter hereof and thereof.
4.7. Certain Obligations. Whenever this Agreement requires
any of the Subsidiaries of any party to take any action, this
Agreement will be deemed to include an undertaking on the part of such
party to cause such Subsidiary to take such action.
4.8. Assignment. No party to this Agreement shall convey,
assign or otherwise transfer any of its rights or obligations under
this Agreement without the express written consent of the other
parties hereto in their sole and absolute discretion, except that any
party hereto may assign any of its rights hereunder to a successor to
all or any part of its business. Except as aforesaid, any such
conveyance, assignment or transfer without the express written consent
of the other parties shall be void ab initio. No assignment of this
Agreement shall relieve the assigning party of its obligations
hereunder.
4.9. Captions. The Article, Section and paragraph captions
herein are for convenience of reference only, do not constitute part
of this Agreement and shall not be deemed to limit or otherwise affect
any of the provisions hereof.
4.10. Severability. If any provision of this Agreement or
the application thereof to any person or circumstance is determined by
a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof, or the application of
such provision to persons or circumstances other than those as to
which it has been held invalid or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse
to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable
substitute provision to effect the original intent of the parties.
4.11. No Third Party Beneficiaries. Nothing contained in
this Agreement is intended to confer upon any person or entity other
than the parties hereto and their respective successors and permitted
assigns, any benefit, right or remedies under or by reason of this
Agreement, except that the provisions of Article II hereof shall inure
to the benefit of Indemnitees and the provisions of Section 3.3 shall
inure to the benefit of the Savings Plans.
4.12. Consent to Jurisdiction. Each of the Company, Acquiror
and Newco irrevocably submits to the exclusive jurisdiction of (i) the
Superior Court of the State of California, San Francisco County and
(ii) the United States District Court for the Northern District of
California for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby
(and agrees not to commence any action, suit or proceeding relating
hereto except in such courts). Each of the Company, Acquiror and Newco
further agrees that service of any process, summons, notice or
document hand delivered or sent by registered mail to such party's
respective address set forth in Section 4.5 will be effective service
of process for any action, suit or proceeding in California with
respect to any matters to which it has submitted to jurisdiction as
set forth in the immediately preceding sentence. Each of the Company,
Acquiror and Newco irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby
in (i) the Superior Court of the State of California, San Francisco
County or (ii) the United States District Court for the Northern
District of California, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
IN WITNESS WHEREOF, this Agreement has been duly executed
and delivered by the duly authorized officers of the parties hereto on
the date first hereinabove written.
ROCKWELL INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
THE BOEING COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW ROCKWELL INTERNATIONAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
BOEING NA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director