EXHIBIT 2(e)
▇▇▇▇▇▇ SPIN-OFF SEPARATION AGREEMENT,
dated as of __________, 1997,
by and between
HE HOLDINGS, INC.
and
GENERAL MOTORS CORPORATION
Table of Contents
Page
1. Definitions............................................................ 2
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2. Certain Intercompany Matters........................................... 9
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2.1 Capital Stock Matters............................................ 9
2.2 Publicity........................................................ 10
2.3 Further Assurances............................................... 10
3. Expenses............................................................... 11
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3.1 General.......................................................... 11
3.2 Certain Costs Relating to ▇▇▇▇▇▇ Common Stock.................... 11
3.3 Certain Transactions Costs....................................... 11
4. Covenants To Preserve Tax-Free Status Of ▇▇▇▇▇▇ Spin-Off............... 12
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4.1 Representations and Warranties................................... 12
4.2 Restrictions on ▇▇▇▇▇▇........................................... 12
4.3 Cooperation and Other Covenants.................................. 17
4.4 Indemnification for Tax Liabilities.............................. 18
4.5 Procedure for Indemnification for Tax Liabilities................ 19
4.6 Arbitration...................................................... 20
4.7 Exclusive Remedies............................................... 21
5. Indemnification........................................................ 21
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5.1 Indemnification by ▇▇▇▇▇▇........................................ 21
5.2 Indemnification by GM............................................ 21
5.3 Other Liabilities................................................ 22
5.4 Tax Effects of Indemnification................................... 22
5.5 Effect of Insurance Upon Indemnification......................... 22
5.6 Procedure for Indemnification Involving Third-Party Claims....... 23
5.7 Procedure for Indemnification Not Involving Third-Party Claims... 24
5.8 Exclusive Remedies............................................... 25
6. Miscellaneous.......................................................... 25
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6.1 Dispute Resolution............................................... 25
6.2 Survival......................................................... 25
6.3 Complete Agreement............................................... 25
6.4 Authority........................................................ 25
6.5 Governing Law.................................................... 25
6.6 Consent to Exclusive Jurisdiction................................ 25
6.7 Notices.......................................................... 26
6.8 Amendment and Modification....................................... 27
6.9 Binding Effect; Assignment....................................... 27
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6.10 Third Party Beneficiaries........................................ 27
6.11 Counterparts..................................................... 28
6.12 Waiver........................................................... 28
6.13 Severability..................................................... 28
6.14 Remedies......................................................... 28
6.15 Performance...................................................... 28
6.16 References; Construction......................................... 28
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▇▇▇▇▇▇ SPIN-OFF SEPARATION AGREEMENT
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This ▇▇▇▇▇▇ SPIN-OFF SEPARATION AGREEMENT ("Agreement") is made and entered
into as of __________, 1997, by and between ▇▇▇▇▇▇, a Delaware corporation, and
GM, a Delaware corporation. Capitalized terms used and not otherwise defined
herein are defined in Section 1 below.
RECITALS
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WHEREAS, ▇▇▇▇▇▇ and Raytheon desire to combine the Raytheon Business with
the ▇▇▇▇▇▇ Business;
WHEREAS, ▇▇▇▇▇▇ and Raytheon have entered into the ▇▇▇▇▇▇ Merger Agreement,
pursuant to which Raytheon shall merge with and into ▇▇▇▇▇▇, with ▇▇▇▇▇▇ as the
surviving corporation, in accordance with the terms and subject to the
conditions thereof;
WHEREAS, as a condition to entering into the ▇▇▇▇▇▇ Merger Agreement,
Raytheon has required that GM agree that, at the time of the consummation of the
▇▇▇▇▇▇ Merger, ▇▇▇▇▇▇ be an independent, publicly owned company, comprising the
Defense Business;
WHEREAS, in response to such requirement, GM and Raytheon have entered into
the Implementation Agreement and, as contemplated thereby, GM and Merger Sub
have entered into the ▇▇▇▇▇▇ Distribution Agreement, pursuant to which, subject
to certain terms and conditions contained therein, Merger Sub shall merge with
and into GM, with GM as the surviving corporation such that, among other things,
the holders of shares of GM $1 2/3 Common Stock and the holders of shares of GM
Class H Common Stock shall receive a distribution of shares of ▇▇▇▇▇▇ Class A
Common Stock (representing all of the outstanding common stock of ▇▇▇▇▇▇) in the
▇▇▇▇▇▇ Spin-Off;
WHEREAS, the parties intend that (a) the ▇▇▇▇▇▇ Merger constitute a tax-
free "reorganization" within the meaning of Section 368(a) of the Code and (b)
the ▇▇▇▇▇▇ Spin-Off qualify as a tax-free (to GM and the holders of GM Common
Stock) spin-off within the meaning of Section 355 of the Code;
WHEREAS, the parties hereto have determined that in order to accomplish the
objectives of the ▇▇▇▇▇▇ Spin-Off and to facilitate the consummation thereof, it
is necessary and desirable to restructure certain intercompany relationships,
allocate certain liabilities and provide mutual indemnification, all as set
forth herein;
WHEREAS, the execution and delivery of this Agreement is a condition to
GM's obligation to consummate the transactions contemplated by the ▇▇▇▇▇▇
Distribution Agreement; and
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WHEREAS, concurrently with the execution and delivery of this Agreement,
GM, Telecom, Delco and ▇▇▇▇▇▇ are entering into certain other agreements
relating to the HEC Reorganization, the ▇▇▇▇▇▇ Spin-Off and/or the relationships
of the parties thereafter, including, without limitation, as to matters such as
taxes, indemnification, employee benefits, insurance, intellectual property,
real property, transition services and shared research and development;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereby agree
as follows:
1. Definitions.
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"Active Trade or Business" means the active conduct of the trade or
business (as defined in Section 355(b)(2) of the Code) conducted by ▇▇▇▇▇▇
immediately prior to the Effective Time.
"Affiliate" means a ▇▇▇▇▇▇ Affiliate, a GM Affiliate or a Raytheon
Affiliate, as the case may be.
"Business" means the ▇▇▇▇▇▇ Business, the GM Business or the Raytheon
Business, as the case may be.
"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions located in the State of New York are authorized or
obligated by law or executive order to close.
"Claim" has the meaning set forth in Section 5.7.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, together with the rules and regulations promulgated thereunder.
"Control" means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract, or otherwise.
"CPR Rules" means the Rules for Non-Administered Arbitration of Business
Disputes promulgated by the Center for Public Resources, as in effect on the
date hereof.
"DGCL" means the General Corporation Law of the State of Delaware, as in
effect on the date hereof and as the same may hereafter be amended from time to
time.
"Defense Business" has the meaning ascribed to such term in the Separation
Agreement.
"Delco" has the meaning ascribed to such term in the Separation Agreement.
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"Dispute Notice" means written notice of any dispute between GM and ▇▇▇▇▇▇
arising out of or relating to this Agreement, which shall set forth, in
reasonable detail, the nature of the dispute.
"Effective Time" means the date and time at which the ▇▇▇▇▇▇ Spin-Off
Merger becomes effective.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, together with the rules and regulations promulgated thereunder.
"GM" means General Motors Corporation, a Delaware corporation.
"GM Affiliate" means a Person that, after giving effect to the ▇▇▇▇▇▇ Spin-
Off, directly or indirectly through one or more intermediaries, is Controlled by
GM.
"GM Business" means any business or operations of GM or any GM Affiliates
other than the ▇▇▇▇▇▇ Business.
"GM Class H Common Stock" means the Class H Common Stock, par value $0.10
per share, of GM.
"GM Class HT Common Stock" has the meaning ascribed to such term in the
▇▇▇▇▇▇ Distribution Agreement.
"GM Common Stock" means the GM $1 2/3 Common Stock and the GM Class H
Common Stock and, from and after the Effective Time, the GM Class HT Common
Stock.
"GM $1 2/3 Common Stock" means the Common Stock, par value $1 2/3 per
share, of GM.
"GM Disclosure Portions" means any material set forth in either the ▇▇▇▇▇▇
Spin-Off Registration Statement or the ▇▇▇▇▇▇ Merger Registration Statement (i)
relating to (A) ▇▇▇▇▇▇, the capital stock of ▇▇▇▇▇▇, the ▇▇▇▇▇▇ Business,
financial information and data relating to ▇▇▇▇▇▇ (including both historical and
pro forma financial data) or (B) the GM Transactions or (ii) that otherwise does
not constitute a part of a ▇▇▇▇▇▇ Disclosure Portion. For purposes of clause
(i)(A), ▇▇▇▇▇▇ shall include ▇▇▇▇▇▇ only prior to the consummation of the ▇▇▇▇▇▇
Merger and shall not include ▇▇▇▇▇▇ as the surviving corporation of the ▇▇▇▇▇▇
Merger.
"GM Transactions" has the meaning ascribed to such term in the ▇▇▇▇▇▇
Distribution Agreement.
"GM Transfer Agent" means Boston EquiServe, L.P., in its capacity as the
transfer agent for the GM Common Stock.
"HEC Reorganization" has the meaning ascribed to such term in the ▇▇▇▇▇▇
Distribution Agreement.
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"▇▇▇▇▇▇" means HE Holdings, Inc., a Delaware corporation, after giving
effect to the consummation of the HEC Reorganization, and, upon the consummation
of the ▇▇▇▇▇▇ Merger, the surviving corporation of the ▇▇▇▇▇▇ Merger.
"▇▇▇▇▇▇ Affiliate" means a Person that, after giving effect to the ▇▇▇▇▇▇
Spin-Off, directly or indirectly through one or more intermediaries, Controls,
is Controlled by, or is under common Control with ▇▇▇▇▇▇.
"▇▇▇▇▇▇ Business" means the Defense Business and, upon the consummation of
the ▇▇▇▇▇▇ Merger, the Raytheon Business.
"▇▇▇▇▇▇ Capital Stock" means all classes or series of capital stock of
▇▇▇▇▇▇.
"▇▇▇▇▇▇ Class A Common Stock" means the Class A Common Stock, par value
$0.01 per share, of ▇▇▇▇▇▇, as set forth in ▇▇▇▇▇▇' Certificate of Incorporation
as of immediately prior to the Effective Time.
"▇▇▇▇▇▇ Class B Common Stock" means the Class B Common Stock, par value
$0.01 per share, of ▇▇▇▇▇▇, as set forth in ▇▇▇▇▇▇' Certificate of Incorporation
as of immediately prior to the Effective Time.
"▇▇▇▇▇▇ Common Stock" means ▇▇▇▇▇▇ Class A Common Stock and ▇▇▇▇▇▇ Class B
Common Stock.
"▇▇▇▇▇▇ Disclosure Portions" means all material set forth in either the
▇▇▇▇▇▇ Spin-Off Registration Statement or the ▇▇▇▇▇▇ Merger Registration
Statement relating to (i) Raytheon, the capital stock of Raytheon, the Raytheon
Business, financial information and data relating to Raytheon (including both
historical and pro forma financial data) or (ii) the ▇▇▇▇▇▇ Merger, plans
regarding ▇▇▇▇▇▇ after the ▇▇▇▇▇▇ Merger and other forward-looking information
regarding ▇▇▇▇▇▇.
"▇▇▇▇▇▇ Distribution Agreement" means the Agreement and Plan of Merger by
and between GM and Merger Sub, dated as of ______, 1997, as amended from time to
time.
"▇▇▇▇▇▇ Merger" means the merger of Raytheon with and into ▇▇▇▇▇▇ pursuant
to the ▇▇▇▇▇▇ Merger Agreement, with ▇▇▇▇▇▇ as the surviving corporation.
"▇▇▇▇▇▇ Merger Agreement" means the Agreement and Plan of Merger by and
between ▇▇▇▇▇▇ and Raytheon, dated as of January 16, 1997, as amended from time
to time.
"▇▇▇▇▇▇ Merger Registration Statement" means the Registration Statement on
Form S-4 filed or to be filed with the SEC by ▇▇▇▇▇▇ relating to the shares of
▇▇▇▇▇▇ Class B Common Stock to be issued in connection with the ▇▇▇▇▇▇ Merger,
as supplemented or amended from time to time.
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"▇▇▇▇▇▇ Spin-Off" means the distribution of ▇▇▇▇▇▇ Class A Common Stock to
the holders of GM Common Stock pursuant to the ▇▇▇▇▇▇ Spin-Off Merger.
"▇▇▇▇▇▇ Spin-Off Merger" means the merger of Merger Sub with and into GM
pursuant to the ▇▇▇▇▇▇ Distribution Agreement, with GM as the surviving
corporation.
"▇▇▇▇▇▇ Spin-Off Registration Statement" means the Registration Statement
on Form S-4 filed or to be filed with the SEC by ▇▇▇▇▇▇ relating to the shares
of ▇▇▇▇▇▇ Class A Stock to be distributed in connection with the ▇▇▇▇▇▇ Spin-
Off, as supplemented or amended from time to time.
"▇▇▇▇▇▇ Transfer Agent" means ______________, in its capacity as the
transfer agent for the ▇▇▇▇▇▇ Common Stock.
"Implementation Agreement" means the Implementation Agreement by and
between GM and Raytheon, dated as of January 16, 1997, as amended from time to
time.
"Indemnifying Party" means a Person that is obligated to provide
indemnification under this Agreement.
"Indemnitee" means a Person that is entitled to seek indemnification under
this Agreement.
"Indemnity Payment" means an amount that an Indemnifying Party is required
to pay to an Indemnitee under this Agreement.
"Insurance Proceeds" means the payment received by an insured from an
insurance carrier or paid by an insurance carrier on behalf of the insured, net
of any applicable premium adjustment and tax effect.
"IRS" means Internal Revenue Service of the U.S. Department of Treasury or
any successor agency.
"Losses" means all losses, liabilities, claims, obligations, demands,
judgments, damages, dues, penalties, assessments, fines (civil or criminal),
costs, liens, expenses, forfeitures, settlements, or fees, reasonable attorneys'
fees and court costs, of any nature or kind, whether or not the same would
properly be reflected on a balance sheet, and "Loss" means any of these.
"Merger Sub" means __________ Corporation, a Delaware corporation and a
wholly-owned subsidiary of GM.
"Negotiation Period" means the period of 20 Business Days following the
initial meeting of the representatives of GM and ▇▇▇▇▇▇ following the receipt of
a Dispute Notice.
"Notice" means any notice, request, claim, demand, or other communication
under this Agreement.
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"Person" means an individual, partnership, joint venture, corporation,
trust, unincorporated association, any other entity, or a government or any
department or agency or other unit thereof.
"Prior Relationship" means the ownership relationships among GM, ▇▇▇▇▇▇,
Telecom and Delco at any time prior to giving effect to the consummation of the
HEC Reorganization and the ▇▇▇▇▇▇ Spin-Off.
"Proposed Acquisition Transaction" means a transaction or series of
transactions as a result of which any Person or any group of related Persons
would acquire, or have the right to acquire, (i) from one or more holders of
outstanding shares of ▇▇▇▇▇▇ Capital Stock, a number of shares of ▇▇▇▇▇▇ Capital
Stock that would comprise more than 15% of (A) the value of all outstanding
shares of ▇▇▇▇▇▇ Capital Stock as of the date of such transaction, or in the
case of a series of transactions, the date of the last transaction of such
series, or (B) the number of the issued and outstanding shares of ▇▇▇▇▇▇ Class A
Common Stock or ▇▇▇▇▇▇ Class B Common Stock as of the date of such transaction,
or in the case of a series of transactions, the date of the last transaction of
such series, or (ii) from ▇▇▇▇▇▇, all or a substantial portion of its assets or
business in exchange in whole or in part for equity interests in such Person or
group which are received by holders of ▇▇▇▇▇▇ Capital Stock.
"Proposed Stock Buyback Transaction" means a transaction or series of
transactions as a result of which ▇▇▇▇▇▇ or a ▇▇▇▇▇▇ Affiliate would acquire, or
have the right to acquire, one or more shares of ▇▇▇▇▇▇ Capital Stock.
"Proposed Stock Issuance Transaction" means a transaction or series of
transactions as a result of which any Person would acquire, or have the right to
acquire, from ▇▇▇▇▇▇ or a ▇▇▇▇▇▇ Affiliate, one or more shares of ▇▇▇▇▇▇ Capital
Stock.
"Raytheon" means Raytheon Company, a Delaware corporation.
"Raytheon Affiliate" means a Person that directly or indirectly through one
or more intermediaries, Controls, is Controlled by, or is under common Control
with Raytheon.
"Raytheon Business" means any business or operations of Raytheon.
"Representation Date" means any date on which ▇▇▇▇▇▇ makes any
representation (i) to the IRS or to counsel selected by GM for the purpose of
obtaining a Subsequent Tax Opinion/Ruling, or (ii) to GM for the purpose of any
determination required to be made by GM pursuant to Section 4.2.
"Representation Letters" means the representation letters and any other
materials deliverable by GM and others in connection with the rendering by Tax
Counsel and the issuance by the IRS of the Tax Opinions/Rulings, which to the
extent related to ▇▇▇▇▇▇, Raytheon or the Surviving Corporation (as defined in
the ▇▇▇▇▇▇ Merger Agreement) shall be in form and substance reasonably
satisfactory to ▇▇▇▇▇▇ and Raytheon.
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"Representative" means, with respect to any Person, any of such Person's
directors, officers, employees, agents, consultants, advisors, accountants or
attorneys.
"Request" has the meaning set forth in Section 5.7.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, together with the rules and regulations promulgated thereunder.
"Separate Counsel" has the meaning set forth in Section 5.6(b).
"Separation Agreement" means the Master Separation Agreement by and among
GM, Telecom, Delco and ▇▇▇▇▇▇, dated as of ________, 1997, as amended from time
to time.
"Service Agent" means (i) for GM, The Corporation Trust Company, with
offices on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and (ii) for ▇▇▇▇▇▇, The Corporation Trust Company, with
offices on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New
Castle, Delaware.
"Subsequent Tax Opinion/Ruling" means either (i) an opinion of counsel
selected by GM, in its sole and absolute discretion, confirming, in form and
substance reasonably satisfactory to GM, that, as a consequence of the
consummation of a subsequent transaction, (A) no income, gain or loss for U.S.
federal income tax purposes will be recognized by GM, the stockholders or former
stockholders of GM, or any GM Affiliate with respect to the ▇▇▇▇▇▇ Spin-Off
and/or the Telecom Spin-Off, or (B) no income, gain or loss for U.S. federal
income tax purposes will be recognized by GM, ▇▇▇▇▇▇, Raytheon or any of their
Affiliates, or by ▇▇▇▇▇▇' stockholders (including, without limitation, GM
stockholders who become ▇▇▇▇▇▇ stockholders as a result of the ▇▇▇▇▇▇ Spin-Off),
with respect to the ▇▇▇▇▇▇ Merger; or (ii) an IRS private letter ruling to the
same effect.
"Subsidiary" means with respect to any specified Person, any corporation or
other legal entity of which such Person or any of its Subsidiaries Controls or
owns, directly or indirectly, more than 50% of the stock or other equity
interest entitled to vote on the election of members to the board of directors
or similar governing body; provided, however, that for the purposes of this
Agreement, neither ▇▇▇▇▇▇ nor any of the Subsidiaries of ▇▇▇▇▇▇ shall be deemed
to be Subsidiaries of GM or of any of the Subsidiaries of GM.
"Tax" means (i) any income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code Section 59A), customs duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on, minimum, estimated, or other
tax, assessment, or governmental charge of any kind whatsoever imposed by any
governmental authority, including any interest, penalty, or addition thereto,
whether disputed or not; (ii) liability for the payment of any amounts of the
type described in clause (i) above arising as a result of being (or having been)
a member of any group or being (or having been) included or required to be
included in any Tax Return related thereto; and (iii) liability for the payment
of any amounts of the type described in clause (i) above as a result of
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any express or implied obligation to indemnify or otherwise assume or succeed to
the liability of any other Person.
"Tax Agreement" means the Tax Sharing Agreement by and among GM, ▇▇▇▇▇▇ and
Telecom, dated as of ______, 1997, as amended from time to time, relating to
certain tax matters.
"Tax Counsel" means ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, with respect to those Tax
Opinions/Rulings deliverable to GM relating to the transactions effectuated
pursuant to the ▇▇▇▇▇▇ Distribution Agreement, and Weil, Gotshal & ▇▇▇▇▇▇, LLP,
with respect to the Tax Opinions/Rulings deliverable to GM and ▇▇▇▇▇▇ relating
to the transactions effectuated pursuant to the ▇▇▇▇▇▇ Merger Agreement.
"Tax-Free Status of the ▇▇▇▇▇▇ Merger" means the nonrecognition of taxable
income, gain or loss for U.S. federal income tax purposes to GM, ▇▇▇▇▇▇,
Raytheon and their Affiliates, and to ▇▇▇▇▇▇' stockholders (including, without
limitation, GM stockholders who become ▇▇▇▇▇▇ stockholders as a result of the
▇▇▇▇▇▇ Spin-Off) in connection with the ▇▇▇▇▇▇ Merger.
"Tax-Free Status of the Spin-Offs" means the nonrecognition of taxable gain
or loss for U.S. federal income tax purposes to GM, GM Affiliates and GM's
stockholders in connection with the ▇▇▇▇▇▇ Spin-Off and/or the Telecom Spin-Off.
"Tax Opinions/Rulings" means, collectively, the opinions of Tax Counsel and
the rulings by the IRS deliverable to GM in connection with (i) the transactions
contemplated by the ▇▇▇▇▇▇ Distribution Agreement and (ii) the transactions
contemplated by the ▇▇▇▇▇▇ Merger Agreement.
"Tax-Related Losses" means (i) all federal, state and local Taxes
(including interest and penalties thereon) imposed pursuant to any settlement,
final determination, judgment or otherwise; (ii) all accounting, legal and other
professional fees, and court costs incurred in connection with such taxes; and
(iii) all costs and expenses that may result from adverse tax consequences to GM
or GM's stockholders (including all costs, expenses and damages associated with
stockholder litigation or controversies) payable by GM or GM Affiliates.
"Telecom" has the meaning ascribed to such term in the Separation
Agreement.
"Telecom Spin-Off" means the spin-off of Telecom by ▇▇▇▇▇▇ to GM included
as part of the HEC Reorganization.
"Third-Party Claim" means any claim, suit, arbitration, inquiry, proceeding
or investigation by or before any court, governmental or other regulatory or
administrative agency or commission or any arbitration tribunal asserted by a
Person other than GM or any GM Affiliate or ▇▇▇▇▇▇ or any ▇▇▇▇▇▇ Affiliate which
gives rise to a right of indemnification hereunder.
"Voting Stock" means with respect to any Person, all classes and series of
the capital stock of such Person entitled to vote generally in the election of
directors.
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2. Certain Intercompany Matters.
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2.1 Capital Stock Matters.
(a) Recognition of Stockholders. From and after the Effective Time
and until such ▇▇▇▇▇▇ Class A Common Stock is duly transferred in
accordance with applicable law, ▇▇▇▇▇▇ shall regard the Persons who were
record holders of GM $1 2/3 Common Stock and the Persons who were record
holders of GM Class H Common Stock, in each case as of immediately prior to
the Effective Time, as the record holders of ▇▇▇▇▇▇ Class A Common Stock,
as described in and subject to the terms of the ▇▇▇▇▇▇ Distribution
Agreement, without requiring any action on the part of such Persons.
▇▇▇▇▇▇ agrees that, subject to any transfers of such stock, (i) each such
holder shall be entitled to receive all dividends payable on, and exercise
voting rights and all other rights and privileges with respect to, ▇▇▇▇▇▇
Class A Common Stock and (ii) each such holder shall be entitled, without
any action on the part of any such holder, subject to Section 2.3 of the
▇▇▇▇▇▇ Merger Agreement, to receive one or more certificates representing
the shares of ▇▇▇▇▇▇ Class A Common Stock then held by it.
(b) GM Representations and Warranties. GM hereby represents and
warrants that, as of immediately prior to the Effective Time, (i)
___________ shares of GM $1 2/3 Common Stock and ___________ shares of GM
Class H Common Stock will be issued and outstanding, (ii) all of such
shares will be validly issued, fully paid and nonassessable, and (iii)
there will be (x) no outstanding securities of GM or any of its
Subsidiaries convertible into or exchangeable for shares of GM $1 2/3
Common Stock or GM Class H Common Stock and (y) other than stock options
granted pursuant to GM's employee benefit plans and other than as provided
in Article Fourth of GM's Amended and Restated Certificate of
Incorporation, no outstanding subscriptions, options, warrants, rights or
other arrangements or commitments to which GM is a party obligating GM to
issue any shares of GM $1 2/3 Common Stock or GM Class H Common Stock.
(c) ▇▇▇▇▇▇ Representations and Warranties. ▇▇▇▇▇▇ hereby represents
and warrants that, as of immediately prior to the Effective Time, (i)
102,630,503 shares of ▇▇▇▇▇▇ Class A Common Stock will be issued and
outstanding, (ii) all of such shares will be validly issued, fully paid and
nonassessable, (iii) all of such shares will be held of record by GM, (iv)
such shares shall represent all of the issued and outstanding ▇▇▇▇▇▇
Capital Stock, and (v) there will be (x) no outstanding securities of
▇▇▇▇▇▇ or any of its Subsidiaries convertible into or exchangeable for
shares of ▇▇▇▇▇▇ Class A Common Stock and (y) no outstanding subscriptions,
options, warrants, rights or other arrangements or commitments to which
▇▇▇▇▇▇ is a party obligating ▇▇▇▇▇▇ to issue any shares of ▇▇▇▇▇▇ Class A
Common Stock.
(d) Cooperation of Transfer Agents; Stockholder Records. GM shall
cooperate, and shall instruct the GM Transfer Agent to cooperate, with
▇▇▇▇▇▇ and the ▇▇▇▇▇▇ Transfer Agent, and ▇▇▇▇▇▇ shall cooperate, and shall
instruct the ▇▇▇▇▇▇ Transfer Agent to cooperate, with GM and the GM
Transfer Agent, in connection with the ▇▇▇▇▇▇ Spin-Off
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and all other matters relating to (i) the issuance and delivery of
certificates evidencing the shares of ▇▇▇▇▇▇ Class A Common Stock (and
payment of cash in lieu of any fractional shares of ▇▇▇▇▇▇ Class B Common
Stock as described in the ▇▇▇▇▇▇ Merger Agreement) to be distributed in
respect of all shares of GM $1 2/3 Common Stock and GM Class H Common Stock
outstanding as of immediately prior to the Effective Time and (ii) the
exchange of certificates evidencing the recapitalization and conversion of
all shares of GM Class H Common Stock outstanding as of immediately prior
to the Effective Time into shares of GM Class HT Common Stock. Following
the Effective Time, GM shall instruct the GM Transfer Agent to distribute
letters of transmittal, in form reasonably satisfactory to GM and ▇▇▇▇▇▇,
to all holders of GM Class H Common Stock as of immediately prior to the
Effective Time in connection with the exchange of certificates representing
shares of GM Class H Common Stock for certificates representing shares of
GM Class HT Common Stock and certificates representing shares of ▇▇▇▇▇▇
Class A Common Stock. Following the Effective Time, GM shall instruct the
GM Transfer Agent to deliver to the ▇▇▇▇▇▇ Transfer Agent true, correct and
complete copies of the transfer records reflecting the record holders of GM
$1 2/3 Common Stock and GM Class H Common Stock, in each case as of
immediately prior to the Effective Time. Upon the reasonable request of
▇▇▇▇▇▇ from time to time after the Effective Time in connection with any
legitimate corporate purpose, GM shall cooperate, or shall instruct the GM
Transfer Agent to cooperate, in providing ▇▇▇▇▇▇ with reasonable access to
all historical share, transfer and dividend payment records with respect to
the holders of GM $1 2/3 Common Stock and GM Class H Common Stock as of
immediately prior to the Effective Time.
2.2 Publicity. ▇▇▇▇▇▇, with respect to ▇▇▇▇▇▇ and all of the ▇▇▇▇▇▇
Affiliates, and GM, with respect to GM and all of the GM Affiliates, agree to
take all commercially reasonable action to discontinue their respective uses as
promptly after the Effective Time as is commercially reasonable of any printed
material that indicates a continued Prior Relationship between or among GM and
▇▇▇▇▇▇ or any of their respective Affiliates. This Section 2.2 shall not be
deemed to prohibit the use of printed material containing appropriate and
accurate references to the Prior Relationship.
2.3 Further Assurances. In addition to the actions specifically provided
for elsewhere in this Agreement, each of the parties hereto shall use all
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things commercially reasonably necessary, proper
or expeditious under applicable laws, regulations and agreements in order to
consummate and make effective the ▇▇▇▇▇▇ Spin-Off as promptly as reasonably
practicable. Without limiting the generality of the foregoing, each party hereto
shall cooperate with the other party, and execute and deliver, or use all
commercially reasonable efforts to cause to have executed and delivered, all
instruments, including instruments of conveyance, assignment and transfer, and
to make all filings with, and to obtain all consents, approvals or
authorizations of, any domestic or foreign governmental or regulatory authority
in order to make effective the ▇▇▇▇▇▇ Spin-Off.
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3. Expenses.
--------
3.1 General. Except as otherwise provided in this Agreement, the
Separation Agreement and the other agreements contemplated thereby, all costs
and expenses of either party hereto in connection with the ▇▇▇▇▇▇ Spin-Off
and/or the ▇▇▇▇▇▇ Merger shall be paid by the party that incurs such costs and
expenses.
3.2 Certain Costs Relating to ▇▇▇▇▇▇ Common Stock. ▇▇▇▇▇▇ shall pay all
costs of printing and engraving with respect to certificates representing ▇▇▇▇▇▇
Common Stock, fees of any transfer or exchange agent engaged by ▇▇▇▇▇▇, and all
fees relating to listing ▇▇▇▇▇▇ Common Stock on any domestic or foreign stock
exchange or similar organization.
3.3 Certain Transactions Costs.
(a) Certain Merger Costs to be Paid by ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall pay all
costs and expenses relating exclusively to the ▇▇▇▇▇▇ Merger, including,
without limitation, all reasonable out-of-pocket costs and expenses of
printing and distributing the ▇▇▇▇▇▇ Merger Registration Statement and any
related materials (including any proxy or consent solicitation statement),
the fees associated with filing the ▇▇▇▇▇▇ Merger Registration Statement
and any related materials (including any proxy or consent solicitation
statement) with the SEC, the fees associated with making any other federal,
state, local or foreign governmental securities law or other regulatory
filings exclusively in connection with the ▇▇▇▇▇▇ Merger, the fees and
expenses of the ▇▇▇▇▇▇ Transfer Agent and any proxy or consent solicitation
agents, information agents or similar consultants engaged by Raytheon in
connection with effecting the ▇▇▇▇▇▇ Merger. ▇▇▇▇▇▇ shall also pay, unless
otherwise agreed between GM and ▇▇▇▇▇▇, the fees and expenses of ▇▇▇▇▇▇▇,
Sachs & Co. and the fees and expenses of Weil, Gotshal & ▇▇▇▇▇▇ LLP in
connection with the ▇▇▇▇▇▇ Merger; provided that such fees and expenses, to
the extent to be paid by ▇▇▇▇▇▇ after the effective time of the ▇▇▇▇▇▇
Merger, shall be included as current liabilities on the Closing Date
Balance Sheet (as defined in the Separation Agreement).
(b) Certain Merger Costs to be Paid by GM. GM or one of its
subsidiaries shall pay all fees and out-of-pocket expenses of ▇▇▇▇▇▇ in
connection with the ▇▇▇▇▇▇ Merger except as contemplated by Section 3.3(a).
(c) Certain Costs to be Paid by GM. GM or one of its subsidiaries
shall pay all costs and expenses relating to the GM Transactions (other
than as provided in Section 3.2 and other than those relating exclusively
to the ▇▇▇▇▇▇ Merger, which are addressed in Sections 3.3(a) and 3.3(b)
above), including, without limitation, all costs and expenses relating
exclusively to the ▇▇▇▇▇▇ Spin-Off Merger, including, without limitation,
all reasonable out-of-pocket costs and expenses of printing and
distributing the ▇▇▇▇▇▇ Spin-Off Registration Statement and any related
materials (including any proxy or consent solicitation statement), the fees
associated with filing the ▇▇▇▇▇▇ Spin-Off Registration Statement and any
related materials (including any proxy or consent solicitation statement)
with the SEC, the fees associated with making any other federal, state,
local or foreign
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governmental securities law or other regulatory filings exclusively in
connection with the ▇▇▇▇▇▇ Spin-Off Merger, and the fees and expenses of
the GM Transfer Agent and any proxy or consent solicitation agents,
information agents or similar consultants engaged by GM in connection with
effecting the ▇▇▇▇▇▇ Spin-Off Merger.
4. Covenants To Preserve Tax-Free Status Of ▇▇▇▇▇▇ Spin-Off.
--------------------------------------------------------
4.1 Representations and Warranties.
(a) ▇▇▇▇▇▇. ▇▇▇▇▇▇ hereby represents and warrants that (i) it has
examined the Tax Opinions/Rulings and the Representation Letters, and (ii)
the facts presented and the representations made therein, to the extent
descriptive of ▇▇▇▇▇▇ or the ▇▇▇▇▇▇ Business or Raytheon or the Raytheon
Business (including, without limitation, the business purposes for the
▇▇▇▇▇▇ Spin-Off, Telecom Spin-Off and ▇▇▇▇▇▇ Merger, the representations in
the Representation Letters and Tax Opinions/Rulings to the extent that they
relate to ▇▇▇▇▇▇ or the ▇▇▇▇▇▇ Business or Raytheon or the Raytheon
Business, and the plans, proposals, intentions and policies of ▇▇▇▇▇▇ or
Raytheon), are true, correct and complete in all material respects.
(b) GM. GM hereby represents and warrants that (i) it has examined
the Tax Opinions/Rulings and the Representation Letters, and (ii) the facts
presented and the representations made therein, to the extent descriptive
of GM or the GM Business (including, without limitation, the business
purposes for the ▇▇▇▇▇▇ Spin-Off, Telecom Spin-Off, the representations in
the Representation Letters and Tax Opinions/Rulings to the extent that they
relate to GM or the GM Business, and the plans, proposals, intentions and
policies of GM), are true, correct and complete in all material respects.
4.2 Restrictions on ▇▇▇▇▇▇.
(a) Proposed Secondary Capital Stock Transactions. Until the first
day after the two-year anniversary of the Effective Time, ▇▇▇▇▇▇ shall not
enter into any Proposed Acquisition Transaction or, to the extent ▇▇▇▇▇▇
has the right to prohibit any Proposed Acquisition Transaction, permit any
Proposed Acquisition Transaction to occur (whether by (i) redeeming rights
under a stockholders rights plan, (ii) finding a tender offer to be a
"permitted offer" under any such plan or otherwise causing any such plan to
be inapplicable or neutralized with respect to any Proposed Acquisition
Transaction, or (iii) approving any Proposed Acquisition Transaction,
whether for purposes of Section 203 of the DGCL or any similar corporate
statute, any "fair price" or other provision of ▇▇▇▇▇▇' charter or bylaws
or otherwise) unless prior to the consummation of such Proposed Acquisition
Transaction GM has determined, in its sole and absolute discretion, which
discretion shall be exercised in good faith solely to preserve the Tax-Free
Status of the Spin-Offs and the Tax-Free Status of the ▇▇▇▇▇▇ Merger, that
such Proposed Acquisition Transaction would not jeopardize the Tax-Free
Status of the Spin-Offs or the Tax-Free Status of the ▇▇▇▇▇▇ Merger.
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The foregoing shall not prohibit ▇▇▇▇▇▇ from entering into a contract or
agreement to consummate any Proposed Acquisition Transaction if such contract or
agreement requires satisfaction of the above-described requirement prior to the
consummation of such Proposed Acquisition Transaction.
(b) Proposed Primary Capital Stock Transactions.
(i) Until the first day after the two-year anniversary of the
Effective Time, ▇▇▇▇▇▇ shall not enter into any Proposed Stock
Issuance Transaction if, as a result of such Proposed Stock Issuance
Transaction, ▇▇▇▇▇▇ would issue a number of shares of ▇▇▇▇▇▇ Capital
Stock that, when aggregated with all other shares of ▇▇▇▇▇▇ Capital
Stock issued pursuant to any Proposed Stock Issuance Transaction
occurring prior to or simultaneously with such Proposed Stock Issuance
Transaction, would cause (A) the number of shares of ▇▇▇▇▇▇ Class A
Common Stock distributed to GM stockholders in the ▇▇▇▇▇▇ Spin-Off to
constitute less than 80% of the total combined voting power of all
outstanding shares of Voting Stock of ▇▇▇▇▇▇ or (B) the issuance of
outstanding shares of any class or series of ▇▇▇▇▇▇ Capital Stock
other than Voting Stock of ▇▇▇▇▇▇, unless prior to the consummation of
such transaction GM has determined, in its sole and absolute
discretion, which discretion shall be exercised in good faith solely
to preserve the Tax-Free Status of the Spin-Offs and the Tax-Free
Status of the ▇▇▇▇▇▇ Merger, that such transaction would not
jeopardize the Tax-Free Status of the Spin-Offs or the Tax-Free Status
of the ▇▇▇▇▇▇ Merger.
(ii) Until the first day after the two-year anniversary of the
Effective Time, ▇▇▇▇▇▇ shall not enter into any Proposed Stock Buyback
Transaction if, as a result of such Proposed Stock Buyback
Transaction, the then-outstanding shares of ▇▇▇▇▇▇ Class A Common
Stock would constitute less than 80% of the total combined voting
power of all outstanding shares of Voting Stock of ▇▇▇▇▇▇, unless
prior to the consummation of such transaction GM has determined, in
its sole and absolute discretion, which discretion shall be exercised
in good faith solely to preserve the Tax-Free Status of the Spin-Offs
and the Tax-Free Status of the ▇▇▇▇▇▇ Merger, that such transaction
would not jeopardize the Tax-Free Status of the Spin-Offs or the Tax-
Free Status of the ▇▇▇▇▇▇ Merger.
(iii) For purposes of this Section 4.2(b), any option (including
an option issued to employees or in connection with the performance of
services), warrant or other security that would permit or require a
Person to acquire shares of Voting Stock of ▇▇▇▇▇▇ or other ▇▇▇▇▇▇
Capital Stock (including the option, right or obligation of ▇▇▇▇▇▇ or
a ▇▇▇▇▇▇ Affiliate to acquire shares of ▇▇▇▇▇▇ Capital Stock), or any
security convertible into or exchangeable for shares of Voting Stock
of ▇▇▇▇▇▇ or other ▇▇▇▇▇▇ Capital Stock, shall be treated as if it had
been fully exercised, converted or exchanged at the time of issuance,
whether or not such security is by its terms exercisable at such time.
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(c) Amendment to Charter and Bylaws. Until the first day after the
three-year anniversary of the Effective Time, ▇▇▇▇▇▇ shall make no
amendments or changes to its charter or bylaws that would affect the
composition or size of its Board of Directors, the manner in which its
Board of Directors is elected, and the duties and responsibilities of its
Board of Directors unless GM has determined, in its sole and absolute
discretion, which discretion shall be exercised in good faith solely to
preserve the Tax-Free Status of the Spin-Offs and the Tax-Free Status of
the ▇▇▇▇▇▇ Merger, that such amendment or change would not jeopardize the
Tax-Free Status of the Spin-Offs or the Tax-Free Status of the ▇▇▇▇▇▇
Merger.
(d) Continuation of Active Trade or Business. Until the first day
after the two-year anniversary of the Effective Time,
(i) ▇▇▇▇▇▇ shall continue to conduct the Active Trade or
Business.
(ii) Subject to the last sentence of clause (d)(iii), ▇▇▇▇▇▇
shall not (A) liquidate, dispose of, or otherwise discontinue the
conduct of any portion of the Active Trade or Business with a value in
excess of $1.0 billion or (B) dispose of any business or assets that
would cause ▇▇▇▇▇▇ to be operated in a manner inconsistent in any
material respect with the business purposes for the ▇▇▇▇▇▇ Spin-Off as
set forth in the Representation Letters and Tax Opinions/Rulings, in
each case unless GM has determined, in its sole and absolute
discretion, which discretion shall be exercised in good faith solely
to preserve the Tax-Free Status of the Spin-Offs and the Tax-Free
Status of the ▇▇▇▇▇▇ Merger, that such liquidation, disposition, or
discontinuance would not jeopardize the Tax-Free Status of the Spin-
Offs or the Tax-Free Status of the ▇▇▇▇▇▇ Merger.
(iii) ▇▇▇▇▇▇ shall not under any circumstances liquidate,
dispose of, or otherwise discontinue the conduct of any portion of the
Active Trade or Business if such liquidation, disposition or
discontinuance would breach Section 4.2(e). ▇▇▇▇▇▇ shall continue the
active conduct of the Active Trade or Business primarily through
officers and employees of ▇▇▇▇▇▇ or its Subsidiaries (and not
primarily through independent contractors) who are not also officers
or employees of GM or of any GM Affiliates. Notwithstanding the
foregoing, (A) liquidations of any of ▇▇▇▇▇▇' Subsidiaries into ▇▇▇▇▇▇
or one or more Subsidiaries directly or indirectly controlled by
▇▇▇▇▇▇ shall not be deemed to breach this Section 4.2(d) and (B)
▇▇▇▇▇▇ shall not be prohibited from liquidating, disposing of or
otherwise discontinuing the conduct of one or more trades or
businesses that constituted part of the Active Trade or Business, or
any portion thereof, provided that, in the case of this clause (B),
the aggregate value of such trades or businesses, or portions thereof,
so liquidated, disposed of or discontinued shall not exceed $1.0
billion (as determined as of the Effective Time). For purposes of the
preceding sentence and clause (d)(ii), asset retirements, sale-
leaseback arrangements and discontinuances of product lines within
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a trade or business the active conduct of which is continued shall not
be deemed a liquidation, disposition or discontinuance of a trade or
business or portion thereof.
(iv) Solely for purposes of this Section 4.2(d), ▇▇▇▇▇▇ shall not
be treated as directly or indirectly controlling a Subsidiary unless
▇▇▇▇▇▇ owns, directly or indirectly, shares of capital stock of such
Subsidiary constituting (i) 80% or more of the total combined voting
power of all outstanding shares of Voting Stock of such Subsidiary and
(ii) 80% or more of the total number of outstanding shares of each
class or series of capital stock of such Subsidiary other than Voting
Stock.
(v) The restrictions contained in this Section 4.2(d) shall apply
only to the businesses, subsidiaries and operations of ▇▇▇▇▇▇ as in
existence prior to the Effective Time, and shall not be deemed to
apply to those businesses, subsidiaries and operations conducted by
Raytheon prior to the Effective Time.
(e) Continuity of Business.
(i) Until the first day after the two-year anniversary of the
Effective Time, (A) ▇▇▇▇▇▇ shall not voluntarily dissolve or
liquidate, and (B) except in the ordinary course of business, neither
▇▇▇▇▇▇ nor any Subsidiaries directly or indirectly controlled by
▇▇▇▇▇▇ shall sell, transfer, or otherwise dispose of or agree to
dispose of assets (including, for such purpose, any shares of capital
stock of such Subsidiaries) that, in the aggregate, constitute more
than (x) 60% of the gross assets of ▇▇▇▇▇▇ or (y) 60% of the
consolidated gross assets of ▇▇▇▇▇▇ and such Subsidiaries, unless
prior to the consummation of such transaction GM has determined, in
its sole and absolute discretion, which discretion shall be exercised
in good faith solely to preserve the Tax-Free Status of the Spin-Offs
and the Tax-Free Status of the ▇▇▇▇▇▇ Merger, that such transaction
would not jeopardize the Tax-Free Status of the Spin-Offs or the Tax-
Free Status of the ▇▇▇▇▇▇ Merger. The amount of gross assets of
▇▇▇▇▇▇ and such Subsidiaries shall be based on the fair market value
of each such asset as of the Effective Time.
(ii) Sales, transfers or other dispositions by ▇▇▇▇▇▇ or any of
its Subsidiaries to ▇▇▇▇▇▇ or one or more Subsidiaries directly or
indirectly controlled by ▇▇▇▇▇▇ shall not be included in any
determinations under this Section 4.2(e) of whether such 60% or more
of the gross assets of ▇▇▇▇▇▇ or 60% of the consolidated gross assets
of ▇▇▇▇▇▇ and such Subsidiaries have been sold, transferred or
otherwise disposed of.
(iii) Solely for purposes of this Section 4.2(e), ▇▇▇▇▇▇ shall
not be treated as directly or indirectly controlling a Subsidiary
unless ▇▇▇▇▇▇ owns, directly or indirectly, shares of capital stock of
such Subsidiary constituting (A) 80% or more of the total combined
voting power of all outstanding shares of Voting Stock of such
Subsidiary and (B) 80% or more of the total number of outstanding
shares of each class or series of capital stock of such Subsidiary
other than Voting Stock.
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(iv) The restrictions contained in this Section 4.2(e) shall
apply only to the businesses, subsidiaries and operations of ▇▇▇▇▇▇ as
in existence prior to the Effective Time, and shall not be deemed to
apply to those businesses, subsidiaries and operations conducted by
Raytheon prior to the Effective Time.
(f) Recapitalizations, Reincorporations and Similar Transactions.
(i) ▇▇▇▇▇▇ shall not propose a plan of recapitalization or
amendment to its charter or other action providing for (A) the
conversion of shares of any class of ▇▇▇▇▇▇ Common Stock into a
different class of ▇▇▇▇▇▇ Capital Stock, (B) a change in the absolute
or relative voting rights of any class of ▇▇▇▇▇▇ Common Stock from the
rights existing at the Effective Time, or (C) any other action having
an effect similar to that described in clause (A) or (B), unless prior
to the consummation of such action GM has determined, in its sole and
absolute discretion, which discretion shall be exercised in good faith
solely to preserve the Tax-Free Status of the Spin-Offs and the Tax-
Free Status of the ▇▇▇▇▇▇ Merger, that such action would not
jeopardize the Tax-Free Status of the Spin-Offs or the Tax-Free Status
of the ▇▇▇▇▇▇ Merger.
(ii) A Proposed Acquisition Transaction will be considered a
recapitalization transaction subject to subsection 4.2(f)(i) if, as a
result of such transaction, holders of ▇▇▇▇▇▇ Common Stock immediately
before the Proposed Acquisition Transaction will own more than 50% of
the common equity of the Person (or group of related Persons)
acquiring the ▇▇▇▇▇▇ Capital Stock immediately after consummation of
the Proposed Acquisition Transaction, and, in such case, the Person
acquiring ▇▇▇▇▇▇ Capital Stock pursuant to a Proposed Acquisition
Transaction shall be treated as if such Person were ▇▇▇▇▇▇ for
purposes of this Section 4.2(f).
(g) Miscellaneous. Until the first day after the two-year anniversary
of the Effective Time, ▇▇▇▇▇▇ shall not take, or permit any of its
Subsidiaries to take, any other actions or enter into any transaction or
series of transactions or agree to enter into any other transactions that
would be reasonably likely to jeopardize the Tax-Free Status of the Spin-
Offs or the Tax-Free Status of the ▇▇▇▇▇▇ Merger, including any action or
transaction that would be reasonably likely to be inconsistent with any
representation made in the Representation Letters, unless prior to the
consummation of such action or transaction GM has determined, in its sole
and absolute discretion, which discretion shall be exercised in good faith
solely to preserve the Tax-Free Status of the Spin-Offs and the Tax-Free
Status of the ▇▇▇▇▇▇ Merger, that such action or transaction would not
jeopardize the Tax-Free Status of the Spin-Offs or the Tax-Free Status of
the ▇▇▇▇▇▇ Merger. Notwithstanding the foregoing, if and to the extent
that any action or transaction is described in and permitted pursuant to
Sections 4.2(a)-(f) such action or transaction shall not be prohibited by
this Section 4.2(g).
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(h) Permitted Actions and Transactions. Notwithstanding the
foregoing, the provisions of Section 4.2 shall not prohibit ▇▇▇▇▇▇ from (i)
implementing, or otherwise complying with the provisions of, any
stockholders rights plan of ▇▇▇▇▇▇, (ii) consummating the ▇▇▇▇▇▇ Merger or
any of the GM Transactions, provided that the conditions to closing set
forth in Sections 6.1 and 6.3 of the ▇▇▇▇▇▇ Merger Agreement have been
satisfied or properly waived and (iii) implementing any transaction upon
which the IRS has granted a favorable ruling in, or which is described in
reasonable detail in, any Tax Opinions/Ruling received from the IRS.
4.3 Cooperation and Other Covenants.
(a) Notice of Subsequent ▇▇▇▇▇▇ Actions. Each of ▇▇▇▇▇▇ and GM shall
furnish the other with a copy of any ruling requests or other documents
delivered to the IRS that relates to the ▇▇▇▇▇▇ Spin-Off, Telecom Spin-Off
or the ▇▇▇▇▇▇ Merger or that could otherwise be reasonably expected to have
an impact on the Tax-Free Status of the Spin-Offs or Tax-Free Status of the
▇▇▇▇▇▇ Merger.
(b) Cooperation.
(i) Each of ▇▇▇▇▇▇ and GM shall cooperate with the other and
shall take (or refrain from taking) all such actions as the other may
reasonably request in connection with obtaining any GM determination
referred to in Section 4.2. Such cooperation shall include, without
limitation, providing any information and/or representations
reasonably requested by the other to enable either party (or counsel
for such party) to obtain and maintain any Subsequent Tax
Opinion/Ruling that would permit any action described in Section 4.2
to be taken by ▇▇▇▇▇▇ or a ▇▇▇▇▇▇ Affiliate. From and after any
Representation Date in connection with obtaining any such
determination or the receipt of a Subsequent Tax Opinion/Ruling and
until the first day after the two-year anniversary of the date of such
determination or receipt, neither party shall take (nor shall it
refrain from taking) any action that would have caused such
representation to be untrue unless the other party has determined, in
its sole and absolute discretion, which discretion shall be exercised
in good faith solely to preserve the Tax-Free Status of the Spin-Offs
and the Tax-Free Status of the ▇▇▇▇▇▇ Merger, that such action would
not jeopardize the Tax-Free Status of the Spin-Offs and the Tax-Free
Status of the ▇▇▇▇▇▇ Merger.
(ii) In the event that ▇▇▇▇▇▇ notifies GM that it desires to take
one of the actions described in this Section 4.2 and GM concludes that
such action would jeopardize the Tax-Free Status of the Spin-Offs or
the Tax-Free Status of the ▇▇▇▇▇▇ Merger, GM shall, at the request of
▇▇▇▇▇▇, elect either to (i) use all commercially reasonable efforts to
obtain a Subsequent Tax Opinion/Ruling that would permit ▇▇▇▇▇▇ to
take the specified action, and ▇▇▇▇▇▇ shall cooperate in connection
with such efforts, or (ii) provide all reasonable cooperation to
▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇ obtaining such a Subsequent Tax
Opinion/Ruling in form and substance reasonably satisfactory to GM;
provided, however, that the reasonable costs and
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expenses of obtaining any such Subsequent Tax Opinion/Ruling shall be
borne by ▇▇▇▇▇▇.
(c) Notice.
(i) Until all restrictions set forth in Section 4.2 have expired,
▇▇▇▇▇▇ shall give GM written notice of any intention to effect or
permit an action or transaction described in Section 4.2 and which is
prohibited thereunder at such time within a period of time reasonably
sufficient to enable GM to make the determination referred to in
Section 4.2 or to prepare and seek any Subsequent Tax Opinion/Ruling
in connection with such proposed action or transaction. Each such
notice shall set forth the terms and conditions of the proposed action
or transaction, including, without limitation, as applicable, the
nature of any related action proposed to be taken by the Board of
Directors of ▇▇▇▇▇▇, the approximate number of shares of ▇▇▇▇▇▇
Capital Stock proposed to be transferred or issued, the approximate
value of ▇▇▇▇▇▇' assets (or assets of any of ▇▇▇▇▇▇' Subsidiaries)
proposed to be transferred, the proposed timetable for such action or
transaction, and the number of shares of ▇▇▇▇▇▇ Capital Stock
otherwise then owned by the other party to the proposed action or
transaction, all with sufficient particularity to enable GM to make
any such required determination, including information required to
prepare and seek a Subsequent Tax Opinion/Ruling in connection with
such proposed action or transaction. All information provided by
▇▇▇▇▇▇ to GM pursuant to this Section 4.3 shall be deemed subject to
the confidentiality obligations of Article 4 of the Separation
Agreement.
(ii) Promptly, but in any event within 15 days, after GM receives
such written notice from ▇▇▇▇▇▇, ▇▇ shall evaluate such information
and notify ▇▇▇▇▇▇ in writing of such determination or of GM's intent
to seek a Subsequent Tax Opinion/ Ruling and the proposed date for
submission of the request therefor, which date shall not be more than
45 days after the date GM so notifies ▇▇▇▇▇▇ of GM's intent to seek a
Subsequent Tax Opinion/Ruling, provided that such 45-day period shall
be appropriately extended for any period of noncompliance by ▇▇▇▇▇▇
with Section 4.3(b). GM shall notify ▇▇▇▇▇▇ promptly, but in any event
within two Business Days, after the receipt of a Subsequent Tax
Opinion/Ruling. If GM makes a determination that an action or
transaction described in Section 4.2 would jeopardize the Tax-Free
Status of the Spin-Offs or Tax-Free Status of the ▇▇▇▇▇▇ Merger, such
notice to ▇▇▇▇▇▇ shall set forth, in reasonable detail, the reasons
therefor and the reasons for not receiving a Subsequent Tax
Opinion/Ruling.
4.4 Indemnification for Tax Liabilities.
(a) General. Notwithstanding any other provision of this Agreement or
any provision of any of the Tax Agreement to the contrary but subject to
Section 4.4(b), ▇▇▇▇▇▇ shall indemnify, defend and hold harmless GM and
each GM Affiliate (or any successor to any of them) against any and all
Tax-Related Losses incurred by GM in connection with any
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proposed tax assessment or tax controversy with respect to the ▇▇▇▇▇▇ Spin-
Off or the ▇▇▇▇▇▇ Merger to the extent caused by any breach by ▇▇▇▇▇▇ of
any of its representations, warranties or covenants made pursuant to this
Agreement. All interest or penalties incurred in connection with such Tax-
Related Losses shall be computed for the time period up to and including
the date that ▇▇▇▇▇▇ pays its indemnification obligation in full.
(b) Exceptions to ▇▇▇▇▇▇' Indemnification. If GM (i) makes a
determination pursuant to any clause of Section 4.2, on the basis of a
Subsequent Tax Opinion/Ruling or otherwise, and (ii) delivers to ▇▇▇▇▇▇
written notice of such determination pursuant to Section 4.3(c), ▇▇▇▇▇▇
shall have no obligation pursuant to Section 4.4(a), except to the extent
that any Tax-Related Losses so incurred resulted from the inaccuracy,
incorrectness or incompleteness of any representation provided by ▇▇▇▇▇▇
upon which such Subsequent Tax Opinion/Ruling and/or determination was
based.
(c) Timing and Method of Tax Indemnification Payments. ▇▇▇▇▇▇ shall
pay any amount due and payable to GM pursuant to this Section 4.4 on or
before the 90th day following the earlier of agreement or determination
that such amount is due and payable to GM. All payments pursuant to this
Section 4.4 shall be made by wire transfer to the bank account designated
by GM for such purpose, and on the date of such wire transfer ▇▇▇▇▇▇ shall
give GM notice of the transfer.
4.5 Procedure for Indemnification for Tax Liabilities.
(a) Notice of Claim. If GM receives notice of the assertion of any
Third-Party Claim with respect to which ▇▇▇▇▇▇ may be obligated under
Section 4.4 to provide indemnification, GM shall give ▇▇▇▇▇▇ notice thereof
(together with a copy of such Third-Party Claim, process or other legal
pleading) promptly after becoming aware of such Third-Party Claim;
provided, however, that the failure of GM to give notice as provided in
this Section shall not relieve ▇▇▇▇▇▇ of its obligations under Section 4.4,
except to the extent that ▇▇▇▇▇▇ is actually prejudiced by such failure to
give notice. Such notice shall describe such Third-Party Claim in
reasonable detail.
(b) Obligation of Indemnifying Party.
(i) GM and ▇▇▇▇▇▇ shall jointly control the defense of, and
cooperate with each other with respect to defending, any Third-Party
Claim with respect to which ▇▇▇▇▇▇ is obligated under Section 4.4 to
provide indemnification, provided that ▇▇▇▇▇▇ shall forfeit such joint
control right with respect to a particular Third-Party Claim if ▇▇▇▇▇▇
or any ▇▇▇▇▇▇ Affiliate makes any public statement or filing, or takes
any action (including, but not limited to, the filing of any
submission or pleading, or the giving of a deposition or production of
documents, in any administrative or court proceeding) in connection
with such Third-Party Claim that is inconsistent in a material respect
with any representation or warranty made by ▇▇▇▇▇▇ in the Agreement,
the Tax Opinions/Rulings, the Representation Letters or the ▇▇▇▇▇▇
Merger Agreement.
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(ii) ▇▇▇▇▇▇ and GM shall exercise their rights to jointly control
the defense of any such Third-Party Claim solely for the purpose of
defeating such Third-Party Claim and, unless required by applicable
law, neither ▇▇▇▇▇▇ nor GM shall make any statements or take any
actions that could reasonably result in the shifting of liability for
any Losses arising out of such Third-Party Claim from the party making
such statement or taking such action (or any of its Affiliates) to the
other party (or any of its Affiliates).
(iii) Statements made or actions taken by either ▇▇▇▇▇▇ or GM in
connection with the defense of any such Third-Party Claim shall not
prejudice the rights of such party in any subsequent action or
proceeding between the parties.
(iv) If either GM or ▇▇▇▇▇▇ fails to jointly defend any such
Third-Party Claim, the other party shall solely defend such Third-
Party Claim and the party failing to jointly defend shall use
commercially reasonable efforts to cooperate with the other party in
its defense of such Third-Party Claim; provided, however, that GM may
not compromise or settle any such Third-Party Claim without the prior
written consent of ▇▇▇▇▇▇, which consent shall not be unreasonably
withheld or delayed. All costs and expenses of either party in
connection with, and during the course of, the joint control of the
defense of any such Third-Party Claim shall be initially paid by the
party that incurs such costs and expenses. Such costs and expenses
shall be reallocated and reimbursed in accordance with the respective
indemnification obligations of the parties at the conclusion of the
defense of such Third-Party Claim.
4.6 Arbitration. Any dispute between the parties arising out of or
relating to this Section 4, including the interpretation of this Section 4, or
any actual or purported breach of this Section 4, shall be resolved only in
accordance with the following provisions:
(a) Negotiation. GM and ▇▇▇▇▇▇ shall attempt in good faith to resolve
any such dispute promptly through negotiations of the parties. In the
event of any such dispute, either party may deliver a Dispute Notice to the
other party, and within 20 Business Days after the receipt of such Dispute
Notice, the appropriate representatives of GM and ▇▇▇▇▇▇ shall meet to
attempt to resolve such dispute. If such dispute has not been resolved
within the Negotiation Period, or if one of the parties fails or refuses to
negotiate such dispute, the issue shall be settled by arbitration pursuant
to Section 4.6(b). The results of such arbitration shall be final and
binding on the parties.
(b) Arbitration Procedure. Either party may initiate arbitration with
regard to such dispute by giving the other party written notice either (i)
at any time following the end of the Negotiation Period, or (ii) if the
parties do not meet within 20 Business Days of the receipt of the Dispute
Notice, at any time thereafter. The arbitration shall be conducted by
three arbitrators in accordance with the CPR Rules, except as otherwise
provided in this Section 4.6. Within 20 days following receipt of the
written notice of arbitration, GM and ▇▇▇▇▇▇ shall each appoint one
arbitrator. The two arbitrators so appointed shall appoint the third
arbitrator. If either GM or ▇▇▇▇▇▇ shall fail to appoint an arbitrator
within such 20-day
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period, the arbitration shall be by the sole arbitrator appointed by the
other party. Whether selected by GM and ▇▇▇▇▇▇ or otherwise, each
arbitrator selected to resolve such dispute shall be a tax attorney who is
generally recognized in the tax community as a qualified and competent tax
practitioner with experience in the tax area involved in the issue or
issues to be resolved. Such arbitrators shall be empowered to determine
whether ▇▇▇▇▇▇ is required to indemnify GM pursuant to Section 4.4 and to
determine the amount of the related indemnification payment. Each of GM
and ▇▇▇▇▇▇ shall bear 50% of the aggregate expenses of the arbitrators.
The arbitration shall be governed by the United States Arbitration Act, 9
U.S.C. (S)(S)1-14. The place of arbitration shall be New York, New York.
The final decision of the arbitrators shall be rendered no later than one
year from the date of the written notice of arbitration.
4.7 Exclusive Remedies. Except for the right to pursue equitable
remedies, the remedies provided in this Section 4 shall be deemed the sole and
exclusive remedies of the parties with respect to the subject matters of the
indemnification provisions of Section 4.4.
5. Indemnification.
---------------
5.1 Indemnification by ▇▇▇▇▇▇. Subject to Section 5.3, from and after
the Effective Time, ▇▇▇▇▇▇ shall indemnify, defend and hold harmless GM, all GM
Affiliates and each of their respective directors, officers and employees (in
their capacities as such), from and against:
(a) all Losses relating to, arising out of, or due to, directly or
indirectly, any breach by ▇▇▇▇▇▇ or any ▇▇▇▇▇▇ Affiliate of any of the
provisions of this Agreement;
(b) all Losses relating to, arising out of, or due to any untrue
statement or alleged untrue statement of a material fact contained in the
▇▇▇▇▇▇ Disclosure Portions or the omission or alleged omission to state in
the ▇▇▇▇▇▇ Disclosure Portions a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(c) all Losses relating to or arising out of actions taken (or omitted
to be taken) by Raytheon or any Raytheon Affiliate in violation of the
▇▇▇▇▇▇ Merger Agreement.
5.2 Indemnification by GM. Subject to Section 5.3, from and after the
Effective Time, GM shall indemnify, defend, and hold harmless ▇▇▇▇▇▇, all ▇▇▇▇▇▇
Affiliates, and each of their respective directors, officers and employees (in
their capacities as such), from and against:
(a) all Losses relating to, arising out of, or due to, directly or
indirectly, any breach by GM or any GM Affiliate of any of the provisions
of this Agreement;
(b) all Losses relating to, arising out of, or due to any untrue
statement or alleged untrue statement of a material fact contained in the
GM Disclosure Portions or the omission or alleged omission to state in the
GM Disclosure Portions a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
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(c) all Losses relating to or arising out of any breach of the
representation set forth in Section 2.4(a) of the Implementation Agreement.
5.3 Other Liabilities. (a) Except as provided in Section 5.4, this
Section 5 shall not be applicable to any Tax-Related Losses, which shall be
governed by Section 4 of this Agreement.
(b) This Section 5 shall not be applicable to any Losses relating to,
arising out of, or due to any breach of the provisions of any other contract,
agreement or understanding between GM or any GM Affiliate and ▇▇▇▇▇▇ or any
▇▇▇▇▇▇ Affiliate, which Losses shall be governed by the terms of such contract,
agreement or understanding.
5.4 Tax Effects of Indemnification. (a) Any indemnification payment
made under this Agreement shall be characterized for tax purposes as if such
payment were made immediately prior to the Effective Time, and shall therefore
be treated, to the extent permitted by law, as either (i) a distribution from
▇▇▇▇▇▇ to GM or (ii) a capital contribution from GM to ▇▇▇▇▇▇.
(b) The amount of any Loss or Tax-Related Losses for which indemnification
is provided under this Agreement shall be (i) increased to take account of net
Tax cost, if any, incurred by the Indemnitee arising from the receipt or accrual
of an Indemnity Payment hereunder (grossed up for such increase) and (ii)
reduced to take account of net Tax benefit, if any, realized by the Indemnitee
arising from incurring or paying such Loss or Tax-Related Losses. In computing
the amount of any such Tax cost or Tax benefit, the Indemnitee shall be deemed
to recognize all other items of income, gain, loss, deduction or credit before
recognizing any item arising from the receipt or accrual of any Indemnity
Payment hereunder or incurring or paying any indemnified Loss or Tax-Related
Losses. Any Indemnity Payment hereunder shall initially be made without regard
to this Section 5.4 and shall be increased or reduced to reflect any such net
Tax cost (including gross-up) or net Tax benefit only after the Indemnitee has
actually realized such cost or benefit. For purposes of this Agreement, an
Indemnitee shall be deemed to have "actually realized" a net Tax cost or a net
Tax benefit to the extent that, and at such time as, the amount of Taxes payable
by such Indemnitee is increased above or reduced below, as the case may be, the
amount of Taxes that such Indemnitee would be required to pay but for the
receipt or accrual of the Indemnity Payment or the incurrence or payment of such
Loss or Tax-Related Losses, as the case may be. The amount of any increase or
reduction hereunder shall be adjusted to reflect any final determination (which
shall include the execution of Form 870-AD or successor form) with respect to
the Indemnitee's liability for Taxes, and payments between GM and ▇▇▇▇▇▇ to
reflect such adjustment shall be made if necessary.
5.5 Effect of Insurance Upon Indemnification. The amount which an
Indemnifying Party is required to pay to any Indemnitee pursuant to this Section
5 shall be reduced (including retroactively) by any Insurance Proceeds and other
amounts actually recovered by such Indemnitee in reduction of the related Loss,
it being understood and agreed that each of ▇▇▇▇▇▇ and GM shall use commercially
reasonable efforts to collect any such proceeds or other amounts to which it or
any of its Affiliates is entitled, without regard to whether it is the
Indemnifying Party hereunder. No Indemnitee shall be required, however, to
collect any such proceeds or other amounts prior to being entitled to
indemnification from an Indemnifying Party hereunder. If an Indemnitee receives
an
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Indemnity Payment in respect of a Loss and subsequently receives Insurance
Proceeds or other amounts in respect of such Loss, then such Indemnitee shall
pay to such Indemnifying Party an amount equal to the difference between (a) the
sum of the amount of such Indemnity Payment and the amount of such Insurance
Proceeds or other amounts actually received and (b) the amount of such Loss, in
each case adjusted (at such time as appropriate adjustment can be determined) to
reflect any premium adjustment attributable to such claim.
5.6 Procedure for Indemnification Involving Third-Party Claims.
(a) Notice of Claim. If any Indemnitee receives notice of the
assertion of any Third-Party Claim with respect to which an Indemnifying
Party is obligated under this Agreement to provide indemnification (other
than pursuant to Section 4), such Indemnitee shall give such Indemnifying
Party notice thereof (together with a copy of such Third-Party Claim,
process or other legal pleading) promptly after becoming aware of such
Third-Party Claim; provided, however, that the failure of any Indemnitee to
give notice as provided in this Section shall not relieve any Indemnifying
Party of its obligations under this Section 5, except to the extent that
such Indemnifying Party is actually prejudiced by such failure to give
notice. Such notice shall describe such Third-Party Claim in reasonable
detail.
(b) Obligation of Indemnifying Party. An Indemnifying Party, at such
Indemnifying Party's own expense and through counsel chosen by such
Indemnifying Party (which counsel shall be reasonably acceptable to the
Indemnitee), may elect to defend any Third-Party Claim. If an Indemnifying
Party elects to defend a Third-Party Claim, then, within ten Business Days
after receiving notice of such Third-Party Claim (or sooner, if the nature
of such Third-Party Claim so requires), such Indemnifying Party shall
notify the Indemnitee of its intent to do so, and such Indemnitee shall
cooperate in the defense of such Third-Party Claim. Such Indemnifying
Party shall pay such Indemnitee's reasonable out-of-pocket expenses
incurred in connection with such cooperation. Such Indemnifying Party
shall keep the Indemnitee reasonably informed as to the status of the
defense of such Third-Party Claim. After notice from an Indemnifying Party
to an Indemnitee of its election to assume the defense of a Third-Party
Claim, such Indemnifying Party shall not be liable to such Indemnitee under
this Section 5 for any legal or other expenses subsequently incurred by
such Indemnitee in connection with the defense thereof other than those
expenses referred to in the preceding sentence; provided, however, that
such Indemnitee shall have the right to employ one law firm as counsel,
together with a separate local law firm in each applicable jurisdiction
("Separate Counsel"), to represent such Indemnitee in any action or group
of related actions (which firm or firms shall be reasonably acceptable to
the Indemnifying Party) if, in such Indemnitee's reasonable judgment at any
time, either a conflict of interest between such Indemnitee and such
Indemnifying Party exists in respect of such claim, or there may be
defenses available to such Indemnitee which are different from or in
addition to those available to such Indemnifying Party and the
representation of both parties by the same counsel would be inappropriate,
and in that event (i) the reasonable fees and expenses of such Separate
Counsel shall be paid by such Indemnifying Party (it being understood,
however, that the Indemnifying Party shall not be liable for the expenses
of more than one Separate Counsel (excluding local counsel) with respect to
any Third-Party Claim (even if
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against multiple Indemnitees)) and (ii) each of such Indemnifying Party and
such Indemnitee shall have the right to conduct its own defense in respect
of such claim. If an Indemnifying Party elects not to defend against a
Third-Party Claim, or fails to notify an Indemnitee of its election as
provided in this Section 5 within the period of ten Business Days described
above, the Indemnitee may defend, compromise, and settle such Third-Party
Claim and shall be entitled to indemnification hereunder (to the extent
permitted hereunder); provided, however, that no such Indemnitee may
compromise or settle any such Third-Party Claim without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, the Indemnifying Party
shall not, without the prior written consent of the Indemnitee, (i) settle
or compromise any Third-Party Claim or consent to the entry of any judgment
which does not include as an unconditional term thereof the delivery by the
claimant or plaintiff to the Indemnitee of a written release from all
liability in respect of such Third-Party Claim or (ii) settle or compromise
any Third-Party Claim in any manner that would be reasonably likely to have
a material adverse effect on the Indemnitee.
(c) Joint Defense of Certain Claims. Notwithstanding the provisions
of Section 5.6(b), GM and ▇▇▇▇▇▇ shall jointly control the defense of, and
cooperate with each other with respect to defending, any Third-Party Claim
with respect to which each party is claiming that it is entitled to
indemnification under Section 5.1 or 5.2. If either GM or ▇▇▇▇▇▇ fails to
defend jointly any such Third-Party Claim, the other party shall solely
defend such Third-Party Claim and the party failing to defend jointly shall
use all commercially reasonable efforts to cooperate with the other party
in its defense of such Third-Party Claim; provided, however, that neither
party may compromise or settle any such Third-Party Claim without the prior
written consent of the other party, which consent shall not be unreasonably
withheld or delayed. All costs and expenses of either party in connection
with, and during the course of, the joint control of the defense of any
such Third-Party Claim shall be initially paid by the party that incurs
such costs and expenses. Such costs and expenses shall be reallocated and
reimbursed in accordance with the respective indemnification obligations of
the parties at the conclusion of the defense of such Third-Party Claim.
5.7 Procedure for Indemnification Not Involving Third-Party Claims. If
any Indemnitee desires to assert against an Indemnifying Party any claim for
indemnification under this Section 5 other than a Third-Party Claim (a "Claim"),
the Indemnitee shall deliver to the Indemnifying Party notice of its demand for
satisfaction of such Claim (a "Request"), specifying in reasonable detail the
amount of such Claim and the basis for asserting such Claim. Within 30 days
after the Indemnifying Party has been given a Request, the Indemnifying Party
shall either (i) satisfy the Claim requested to be satisfied in such Request by
delivering to the Indemnitee payment by wire transfer or a certified or bank
cashier's check payable to the Indemnified Party in immediately available funds
in an amount equal to the amount of such Claim, or (ii) notify the Indemnitee
that the Indemnifying Party contests such Claim by delivering to the Indemnitee
a Dispute Notice, stating that the Indemnifying Party objects to such Claim and
specifying in reasonable detail the basis for contesting such Claim. Any
dispute described in clause (ii) of this Section 5.7 shall be subject to the
provisions of Section 6.1.
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5.8 Exclusive Remedies. Except for the right to pursue equitable
remedies, the remedies provided in this Section 5 shall be deemed the sole and
exclusive remedies of the parties with respect to the subject matters of the
indemnification provisions of this Section 5.
6. Miscellaneous.
-------------
6.1 Dispute Resolution. GM and ▇▇▇▇▇▇ shall attempt in good faith to
resolve any dispute between the parties arising out of or relating to this
Agreement promptly through negotiations of the parties prior to seeking any
other legal or equitable remedy.
6.2 Survival. The representations and warranties contained in this
Agreement shall survive the effective time of the ▇▇▇▇▇▇ Merger until the
expiration of all applicable statutes of limitations.
6.3 Complete Agreement. Except as otherwise set forth in this Agreement,
this Agreement and the exhibits and schedules hereto shall constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and shall supersede all prior and contemporaneous agreements and understandings,
whether written or oral, between the parties with respect to such subject
matter.
6.4 Authority. Each of the parties hereto represents to the other that
(a) it has the corporate power and authority to execute, deliver and perform
this Agreement, (b) the execution, delivery and performance of this Agreement by
it has been duly authorized by all necessary corporate action, (c) it has duly
and validly executed and delivered this Agreement, and (d) this Agreement is a
legal, valid and binding obligation, enforceable against it in accordance with
its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equity principles.
6.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (other than the laws regarding
conflicts of laws) as to all matters, including matters of validity,
construction, effect, performance and remedies.
6.6 Consent to Exclusive Jurisdiction. Any action, suit or proceeding
arising out of any claim that the parties cannot settle through good faith
negotiations (except any claim to which Section 4.6 applies) shall be litigated
exclusively in the state courts of Delaware. Each of the parties hereto hereby
irrevocably and unconditionally (a) submits to the jurisdiction of the state
courts of Delaware for any such action, suit or proceeding, (b) agrees not to
commence any such action, suit or proceeding except in the state courts of
Delaware, (c) waives, and agrees not to plead or to make, any objection to the
venue of any such action, suit or proceeding in the state courts of Delaware,
(d) waives, and agrees not to plead or to make, any claim that any such action,
suit or proceeding brought in the state courts of Delaware has been brought in
an improper or otherwise inconvenient forum, (e) waives, and agrees not to plead
or to make, any claim that the state courts of Delaware lack personal
jurisdiction over it, and (f) waives its right to remove any such action, suit
or proceeding to the federal courts except when such courts are vested with sole
and exclusive jurisdiction by statute. GM and ▇▇▇▇▇▇ shall cooperate with each
other in connection with any such
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action, suit or proceeding to obtain reliable assurances that confidential
treatment will be accorded any information that either party shall reasonably
deem to be confidential or proprietary. Each of the parties hereto irrevocably
designates and appoints its respective Service Agent as its agent to receive
service of process in any such action, suit or proceeding. Each of the parties
hereto further covenants and agrees that, until the expiration of all applicable
statutes of limitations relating to potential claims under this Agreement, each
such party shall maintain a duly appointed agent for the service of summonses
and other legal process in the State of Delaware, and shall promptly notify the
other party hereto of any change in the name or address of its Service Agent and
the name and address of any replacement for its Service Agent, if such agent is
no longer the Service Agent named herein. This Section 6.6 is meant to comply
with 6 Del. C. (S) 2708.
6.7 Notices. All Notices shall be in writing and shall be deemed given
upon (a) a transmitter's confirmation of a receipt of a facsimile transmission
(but only if followed by confirmed delivery of a standard overnight courier the
following Business Day or if delivered by hand the following Business Day), or
(b) confirmed delivery of a standard overnight courier or delivered by hand, to
the parties at the following addresses:
if to GM to:
General Motors Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
General Motors Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute effective notice) to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy (which shall not constitute effective notice) to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-▇▇-
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇▇▇▇▇▇, to:
HE Holdings, Inc.
c/o Raytheon Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute effective notice) to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party hereto may have furnished to the other
party by a Notice in writing in accordance with this Section 6.7. Any Notice
delivered pursuant to Section 4 shall also be sent to GM's Chief Tax Officer.
6.8 Amendment and Modification. This Agreement may not be amended or
modified in any respect except by a written agreement signed by both of the
parties hereto.
6.9 Binding Effect; Assignment. This Agreement and all of the provisions
hereof shall be binding upon the parties hereto and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Except
with respect to a merger of either party with another Person, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party hereto without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
6.10 Third Party Beneficiaries. The Indemnitees and their respective
successors shall be third party beneficiaries of the indemnification provisions
of Sections 4 and 5, as applicable, and shall be entitled to enforce those
provisions, and in connection with such enforcement shall be subject to Section
6.6, in each such case as fully and to the same extent as if they were parties
to this Agreement. Except as provided in the previous sentence, nothing in this
Agreement, express or implied, is intended to or shall confer upon any Person
any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement, and no Person (other than as provided in the
previous sentence) shall be deemed a third party beneficiary under or by reason
of this Agreement.
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6.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.12 Waiver. The observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but such waiver shall
be effective only if it is in writing signed by the party against which such
waiver is to be asserted. Unless otherwise expressly provided in this
Agreement, no delay or omission on the part of any party in exercising any right
or privilege under this Agreement shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any right or privilege under this
Agreement operate as a waiver of any other right or privilege under this
Agreement nor shall any single or partial exercise of any right or privilege
preclude any other or further exercise thereof or the exercise of any other
right or privilege under this Agreement. No failure by either party to take any
action or assert any right or privilege hereunder shall be deemed to be a waiver
of such right or privilege in the event of the continuation or repetition of the
circumstances giving rise to such right unless expressly waived in writing by
the party against whom the existence of such waiver is asserted.
6.13 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
6.14 Remedies. Each of GM and ▇▇▇▇▇▇ shall be entitled to enforce its
rights under this Agreement specifically, to recover damages and costs
(including reasonable attorneys' fees) caused by any breach of any provision of
this Agreement and to exercise all other rights existing in its favor. Each of
GM and ▇▇▇▇▇▇ acknowledges and agrees that under certain circumstances the
breach by GM or any of its Affiliates or ▇▇▇▇▇▇ or any of its Affiliates of a
term or provision of this Agreement will materially and irreparably harm the
other party, that money damages will accordingly not be an adequate remedy for
such breach and that the non-defaulting party, in its sole discretion and in
addition to its rights under this Agreement and any other remedies it may have
at law or in equity, may apply to any court of law or equity of competent
jurisdiction (without posting any bond or deposit) for specific performance
and/or other injunctive relief in order to enforce or prevent any breach of the
provisions of this Agreement.
6.15 Performance. Each of the parties hereto shall use all commercially
reasonable efforts to cause to be performed all actions, agreements and
obligations set forth herein to be performed by any Affiliate of such party.
6.16 References; Construction. The table of contents and the section
and other headings and subheadings contained in this Agreement and the Exhibits
hereto are solely for the purpose of reference, are not part of the agreement of
the parties hereto, and shall not in any way affect the meaning or
interpretation of this Agreement. All references to days or months shall be
deemed references to calendar days or months. All references to "$" shall be
deemed references to
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United States dollars. Unless the context otherwise requires, any reference to
a "Section" or "Exhibit" shall be deemed to refer to a section of this Agreement
or an exhibit to this Agreement. The words "hereof," "herein" and "hereunder"
and words of similar import referring to this Agreement refer to this Agreement
as a whole and not to any particular provision of this Agreement. Whenever the
words "include," "includes" or "including" are used in this Agreement, unless
otherwise specifically provided, they shall be deemed to be followed by the
words "without limitation." This Agreement shall be construed without regard to
any presumption or rule requiring construction or interpretation against the
party drafting or causing the document to be drafted.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date and year first written above.
HE HOLDINGS, INC.
By:________________________________
Name:
Its:
GENERAL MOTORS CORPORATION
By:________________________________
Name:
Its: