EXHIBIT 2(b)
EXECUTION COPY
IMPLEMENTATION AGREEMENT
by and between
GENERAL MOTORS CORPORATION
and
RAYTHEON COMPANY
DATED AS OF JANUARY 16, 1997
TABLE OF CONTENTS
Page
ARTICLE I
THE GM TRANSACTIONS....................................................2
Section 1.1 Determination of the Xxxxxx Distribution Ratio...........2
Section 1.2 Xxxxxx Distribution Agreement. .........................2
Section 1.3 GM Stockholder Approval Process..........................2
Section 1.4 Certain Definitions......................................3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GM...................................4
Section 2.1 Organization and Good Standing...........................4
Section 2.2 Corporate Power and Authority............................4
Section 2.3 Ownership of Xxxxxx Capital Stock........................4
Section 2.4 Conflicts, Consents and Approvals........................5
Section 2.5 Litigation...............................................6
Section 2.6 Brokerage and Finder's Fees..............................6
Section 2.7 Requisite GM Stockholder Approval........................6
Section 2.8 Class B Registration Statement and
Raytheon Proxy Statement.................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RAYTHEON.............................7
Section 3.1 Organization and Good Standing...........................7
Section 3.2 Corporate Power and Authority............................7
Section 3.3 Xxxxxx Merger Agreement..................................7
Section 3.4 GM Proxy/Consent Solicitation Statement..................7
ARTICLE IV
COVENANTS AND AGREEMENTS OF THE PARTIES...............................8
Section 4.1 Mutual Covenants.........................................8
Section 4.2 Covenants of GM..........................................9
Section 4.3 Covenants of Raytheon...................................10
ARTICLE V
TERMINATION AND AMENDMENT.............................................11
Section 5.1 Termination.............................................11
Section 5.2 Effect of Termination...................................12
Section 5.3 Amendment...............................................12
Section 5.4 Extension; Waiver.......................................12
ARTICLE VI
MISCELLANEOUS.........................................................12
Section 6.1 No Survival of Representations and Warranties...........12
Section 6.2 Notices.................................................12
Section 6.3 Interpretation; Absence of Presumption..................14
Section 6.4 Counterparts............................................14
Section 6.5 Entire Agreement; Severability..........................14
Section 6.6 Definition of "subsidiary"..............................15
Section 6.7 Third Party Beneficiaries...............................15
Section 6.8 Governing Law...........................................15
Section 6.9 Specific Performance....................................15
Section 6.10 Assignment..............................................15
Exhibit A........................................Xxxxxx Distribution Agreement
Exhibit B..........................................Master Separation Agreement
i
IMPLEMENTATION AGREEMENT
This IMPLEMENTATION AGREEMENT ("Agreement") is made and entered into as
of January 16, 1997 by and between General Motors Corporation, a Delaware
corporation ("GM), and Raytheon Company, a Delaware corporation
("Raytheon"). GM and Raytheon are sometimes referred to herein individually
as a "Party" and collectively as the "Parties."
WHEREAS, HE Holdings, Inc., a Delaware corporation and an indirect
wholly owned subsidiary of GM ("Xxxxxx"), and Raytheon desire to combine
Raytheon's business with the Defense Business (as defined in the Separation
Agreement (as defined below));
WHEREAS, concurrently with the execution and delivery of this
Agreement, Xxxxxx and Raytheon are entering into an Agreement and Plan of
Merger dated as of the date hereof (as amended from time to time in
accordance with the terms thereof and hereof, the "Xxxxxx Merger Agreement"),
pursuant to which Raytheon shall merge with and into Xxxxxx, with Xxxxxx as
the surviving corporation (the "Xxxxxx Merger"), in accordance with the terms
and subject to the conditions thereof;
WHEREAS, as a condition to entering into the Xxxxxx Merger Agreement,
Raytheon has required that GM and Xxxxxx agree that, at the time of the
consummation of the Xxxxxx Merger, Xxxxxx be an independent, publicly owned
company, comprising the Defense Business;
WHEREAS, in response to such requirement, GM is willing to enter into
this Agreement and, subject to satisfaction of certain conditions contained
herein, an Agreement and Plan of Merger, in the form attached hereto as
Exhibit A (except as provided in Section 4.2(b) hereof) (the "Xxxxxx
Distribution Agreement"), by and between GM and a wholly owned subsidiary of
GM to be designated by GM ("Merger Sub");
WHEREAS, subject to satisfaction of certain conditions contained
herein, the Master Separation Agreement, in the form attached hereto as
Exhibit B (except as provided in Section 4.2(b) hereof) (the "Separation
Agreement"), shall be executed and delivered prior to the consummation of the
transactions contemplated by the Xxxxxx Distribution Agreement;
WHEREAS, pursuant to the Xxxxxx Distribution Agreement, subject to
certain terms and conditions contained therein, Merger Sub shall merge with
and into GM, with GM as the surviving corporation (the "Xxxxxx Spin-Off
Merger"), pursuant to which, among other things, the holders of shares of
common stock, par value $1-2/3 per share, of GM ("GM $1-2/3 Common Stock")
and the holders of shares of Class H Common Stock, par value $0.10 per share,
of GM ("GM Class H Common Stock" and, together with GM x0-0/0 Xxxxxx Xxxxx,
"XX Common Stock") shall receive a distribution of shares of Class A Common
Stock, par value $0.01 per share, of Xxxxxx ("Xxxxxx Class A Common
Stock"), representing all of the outstanding common stock of Xxxxxx;
WHEREAS, the Parties intend that (a) the Xxxxxx Merger constitute a
tax-free "reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (together with all rules and
regulations promulgated thereunder, the "Code"), (b) the Xxxxxx Spin-Off
Merger 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 and (c) certain other
transactions described in the Xxxxxx Distribution Agreement be tax-free (to
GM and the holders of GM Common Stock) for U.S. federal income tax purposes;
and
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WHEREAS, by resolutions duly adopted, the respective Boards of
Directors of each of GM and Raytheon have approved and adopted this Agreement
and, by resolutions duly adopted, the respective Boards of Directors of each
of Xxxxxx and Raytheon have approved the Xxxxxx Merger Agreement;
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:
ARTICLE I
THE GM TRANSACTIONS
Section 1.1 Determination of the Xxxxxx Distribution Ratio. GM's
Board of Directors has determined that the GM Transactions, taken as a whole,
are in the best interests of GM and its common stockholders, subject to the
GM Board's determination of a Xxxxxx Distribution Ratio that would enable (i)
the GM Board of Directors to conclude that, as of the date of such
determination, the GM Transactions, taken as a whole, are in the best
interests of GM and its common stockholders and fair to the holders of GM
$1-2/3 Common Stock and the holders of GM Class H Common Stock and (ii) each
of the GM Financial Advisors to provide a GM Financial Advisor Fairness
Opinion. Subject to the fiduciary duties of its Board of Directors and
subject to the terms and provisions of this Agreement, GM agrees that its
Board of Directors shall use all commercially reasonable efforts (i) to
determine, in consultation with the GM Financial Advisors, a Xxxxxx
Distribution Ratio that satisfies each of the conditions set forth in the
first sentence of this Section 1.1 and (ii) to consummate the GM Transactions.
Section 1.2 Xxxxxx Distribution Agreement. Following such time as
(i) GM has determined a Xxxxxx Distribution Ratio as contemplated by Section
1.1 above and (ii) each of the GM Financial Advisor Fairness Opinions has
been rendered as contemplated by Section 1.1 above, GM and Merger Sub shall
enter into the Xxxxxx Distribution Agreement, which shall include the Xxxxxx
Distribution Ratio as so determined. Following such time, if any, as (A) an
adjusted Xxxxxx Distribution Ratio has been determined in order to avoid the
determination described in Section 5.1(e) hereof or Section 4(a)(i) of the
Xxxxxx Distribution Agreement and (B) GM has received each of the GM
Financial Advisors Opinions with respect thereto, GM shall, and shall cause
Merger Sub to, amend the Xxxxxx Distribution Agreement to reflect the Xxxxxx
Distribution Ratio as so adjusted.
Section 1.3 GM Stockholder Approval Process. Following such time as
the Xxxxxx Distribution Agreement has been executed and provided that none of
the GM Financial Advisors Fairness Opinions and the Xxxxxx Financial Advisor
Fairness Opinion has been modified in a manner adverse to GM or to GM's Board
of Directors or to either class of its common stockholders, revoked or
withdrawn and that GM has received the requisite consents authorizing the
inclusion of such opinions in the Proxy/Consent Solicitation Statement, GM
shall, subject in each case to the fiduciary duties of its Board of
Directors, (i) take all commercially reasonable action in accordance with the
federal securities laws, DGCL and its certificate of incorporation and bylaws
necessary to present the GM Transactions to the holders of GM Common Stock
for their consideration and approval, (ii) include in the Proxy/Consent
Solicitation Statement the recommendation of its Board of Directors in favor
of the GM
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Transactions and (iii) use all commercially reasonable efforts to solicit
from its common stockholders entitled to vote thereon proxies to be voted at
a stockholders meeting or consents to be obtained in connection with a
consent solicitation with respect to the GM Transactions.
Section 1.4 Certain Definitions. For purposes of this Agreement, the
following capitalized terms shall have the following meanings:
"DGCL" means the Delaware General Corporation Law, as amended from time
to time.
"GM Financial Advisor Fairness Opinion" means, with respect to each GM
Financial Advisor, its written opinion, dated as of the date of the
determination of the Xxxxxx Distribution Ratio, addressed to the Board of
Directors of GM, to the effect that, on the basis of and subject to the
assumptions, limitations and other matters set forth therein, taking into
account all relevant aspects of the GM Transactions, the consideration to be
provided to GM and its subsidiaries and to the holders of GM $1-2/3 Common
Stock and the holders of GM Class H Common Stock in the GM Transactions is
fair, from a financial point of view, to the holders of GM $1-2/3 Common
Stock and the holders of GM Class H Common Stock.
"GM Financial Advisors" means each of Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Salomon Brothers Inc, each in its capacity as a
financial advisor to GM.
"GM Transactions" has the meaning assigned to such term in the Xxxxxx
Distribution Agreement.
"Xxxxxx Distribution Ratio" means the relationship between (i) the
number of shares of Xxxxxx Class A Common Stock to be allocated and
distributed to the holders of GM $1-2/3 Common Stock and (ii) the number of
shares of Xxxxxx Class A Common Stock to be allocated and distributed to the
holders of GM Class H Common Stock, in each case pursuant to the Xxxxxx
Spin-Off Merger, as set forth in Section 2(d) of the Xxxxxx Distribution
Agreement.
"Xxxxxx Financial Advisor Fairness Opinion" means the written opinion
of Xxxxxxx, Sachs & Co., dated as of January 16, 1997, addressed to the
Boards of Directors of GM, Xxxxxx Electronics Corporation and Xxxxxx to the
effect that, on the basis of and subject to the assumptions and limitations
and other matters set forth therein, the Aggregate Consideration (as defined
therein) is fair to the GM Group (as defined therein) as a whole.
"Proxy/Consent Solicitation Statement" means the proxy or consent
solicitation statement distributed to GM's common stockholders in connection
with their consideration of the GM Transactions, together with all related
materials distributed to GM stockholders and/or filed with the Securities and
Exchange Commission with respect to the GM Transactions, as such documents
and materials may be supplemented or amended from time to time.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GM
In order to induce Raytheon to enter into this
Agreement, GM hereby represents and warrants to Raytheon that the statements
contained in this Article II are true, correct and complete.
Section 2.1 Organization and Good Standing. GM is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware with full power and authority (corporate and
other) to own, lease, use and operate its properties and to conduct its
business as and where owned, leased, used, operated and conducted. GM is
duly qualified to do business and in good standing in each jurisdiction in
which the nature of the business conducted by it or the property it owns,
leases, uses or operates make such qualification necessary, except where the
failure to be so qualified or in good standing in such jurisdiction would not
have a material adverse effect on GM's ability to consummate the transactions
on its part contemplated hereby.
Section 2.2. Corporate Power and Authority. Each of GM and
each of its subsidiaries (other than with respect to actions taken by Xxxxxx
and the subsidiaries of Xxxxxx after giving effect to the consummation of the
HEC Reorganization (as defined in the Xxxxxx Distribution Agreement)) has all
requisite corporate power and authority to enter into this Agreement and all
other Transaction Agreements (as defined below) to which GM or such
subsidiary, as applicable, is or will be a party and to consummate the
transactions on its part contemplated hereby or thereby. The execution and
delivery of this Agreement and, subject to the receipt of the approval of GM
common stockholders described in Section 2.7 below, the consummation of the
transactions on its part contemplated hereby have been duly authorized by all
necessary corporate action on the part of GM. This Agreement has been duly
executed and delivered by GM, and constitutes the legal, valid and binding
obligation of GM, enforceable against it in accordance with its terms. The
execution and delivery of each of the other Transaction Agreements to which
GM or any of its subsidiaries (other than with respect to actions taken by
Xxxxxx and the subsidiaries of Xxxxxx after giving effect to the consummation
of the HEC Reorganization) is or will be a party and the consummation of the
transactions on its part contemplated thereby have been, or prior to the
execution thereof by GM or such subsidiary, as applicable, will be, duly
authorized by all necessary corporate action on the part of GM or such
subsidiary, as applicable (subject, in the case of the Xxxxxx Distribution
Agreement, to the receipt of the approval of GM common stockholders described
in Section 2.7 below), and, when so executed and delivered, will constitute
the legal, valid and binding obligation of GM or such subsidiary, as
applicable, enforceable against it in accordance with its terms.
"Transaction Agreements" means, collectively, (i) this Agreement; (ii) the
Xxxxxx Distribution Agreement; (iii) the Xxxxxx Merger Agreement; and (iv)
the Separation Agreement and each of the other agreements contemplated
thereby.
Section 2.3 Ownership of Xxxxxx Capital Stock. Each
outstanding share of Xxxxxx capital stock is owned by GM, free and clear of
all liens, pledges, security interests, claims or other encumbrances.
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Section 2.4 Conflicts, Consents and Approvals. Neither the
execution and delivery of this Agreement or the other Transaction Agreements
by GM or any of its subsidiaries (other than with respect to actions taken by
Xxxxxx and the subsidiaries of Xxxxxx after giving effect to the consummation
of the HEC Reorganization) nor the consummation of the transactions on the
part of GM or any such subsidiary contemplated hereby or thereby will:
(a)conflict with, or result in a breach of any provision
of the certificate of incorporation or bylaws of GM or any such subsidiary;
(b)violate, or conflict with, or result in a breach of
any provision of, or constitute a default (or an event which, with the giving
of notice, the passage of time or otherwise, would constitute a default)
under, or entitle any party (with the giving of notice, the passage of time
or otherwise) to terminate, accelerate, modify or call a default under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of GM or any of its subsidiaries (other
than Xxxxxx and the subsidiaries of Xxxxxx after giving effect to the
consummation of the HEC Reorganization), under any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, deed of trust,
intellectual property or other license, contract, undertaking, agreement,
lease or other instrument or obligation to which GM or any of its
subsidiaries (other than Xxxxxx and the subsidiaries of Xxxxxx after giving
effect to the consummation of the HEC Reorganization) is a party;
(c)violate any order, writ, injunction, decree, statute,
rule or regulation applicable to GM or any of its subsidiaries (other than
Xxxxxx and the subsidiaries of Xxxxxx after giving effect to the consummation
of the HEC Reorganization) or any of their properties or assets;
(d)except as contemplated by the Xxxxxx Distribution
Agreement and the Xxxxxx Merger Agreement, require any action or consent or
approval of, or review by, or registration or filing by GM or any of its
subsidiaries (other than Xxxxxx and the subsidiaries of Xxxxxx after giving
effect to the consummation of the HEC Reorganization) with, any third party
or any court, arbitral tribunal, administrative agency or commission or other
governmental or regulatory body, agency, instrumentality or authority (a
"Governmental Authority"), other than (i) authorization for listing of the
shares of Xxxxxx Class A Common Stock to be issued in the Xxxxxx Spin-Off
Merger on the New York Stock Exchange, subject to official notice of
issuance, (ii) actions required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder (the "HSR Act"), and other similar foreign, federal
and state laws, and (iii) registrations or other actions required under
foreign, federal and state securities laws;
except in the case of (b), (c) and (d), for any of the foregoing that,
individually or in the aggregate, would neither have a material adverse
effect on the ability of GM and its subsidiaries (other than Xxxxxx and the
subsidiaries of Xxxxxx after giving effect to the consummation of the HEC
Reorganization) to consummate the transactions on their parts contemplated
hereby and by the other Transaction Agreements to which GM or any such
subsidiary, as applicable, is a party nor materially delay the ability of GM
or any such subsidiary to consummate such transactions.
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Section 2.5 Litigation. There is no suit, claim, action,
proceeding or investigation, whether civil, criminal or administrative in
nature, pending or, to the knowledge of GM threatened, against GM or the
subsidiaries of GM (other than Xxxxxx and the subsidiaries of Xxxxxx after
giving effect to the consummation of the HEC Reorganization) which,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the ability of GM or any such subsidiary to
consummate the transactions on its part contemplated hereby or by the other
Transaction Agreements to which GM or any such subsidiary, as applicable, is
a party. Neither GM nor any of the subsidiaries of GM (other than Xxxxxx and
the subsidiaries of Xxxxxx after giving effect to the consummation of the HEC
Reorganization) is subject to any outstanding order, writ, injunction or
decree which, individually or in the aggregate, insofar as can be reasonably
foreseen, could have a material adverse effect on the ability of GM or any
such subsidiary to consummate the transactions on its part contemplated
hereby or by the other Transaction Agreements to which GM or any such
subsidiary, as applicable, is a party.
Section 2.6 Brokerage and Finder's Fees. Except for
obligations to Xxxxxxx, Sachs & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Salomon Brothers Inc, neither GM nor any affiliate,
stockholder, director, officer or employee thereof has incurred or will incur
on behalf of GM or any affiliate thereof any brokerage, finder's or similar
fee in connection with the transactions contemplated by this Agreement.
Other than with respect to the fee of Xxxxxxx, Xxxxx & Co., no such fee will
be charged against or payable by Xxxxxx or any subsidiary thereof.
Section 2.7 Requisite GM Stockholder Approval. The
affirmative votes of the holders of each of (i) a majority of the voting
power of all outstanding shares of GM Common Stock, voting together as a
single class based on their respective per share voting power pursuant to the
provisions set forth in GM's Amended and Restated Certificate of
Incorporation, as amended, (ii) a majority of the outstanding shares of GM
$1-2/3 Common Stock, voting as a separate class, and (iii) a majority of the
outstanding shares of GM Class H Common Stock, voting as a separate class,
are the only votes of the holders of any class or series of GM capital stock
that will be obtained or are necessary in order to approve and adopt the
Xxxxxx Distribution Agreement and the transactions contemplated thereby.
Section 2.8 Class B Registration Statement and Raytheon
Proxy Statement. None of the information provided by or on behalf of GM
(except as it relates to Xxxxxx or its subsidiaries) for inclusion in the
registration statement of Xxxxxx on Form S-4, including the prospectus,
relating to the shares of Xxxxxx Class B Common Stock to be issued in the
Xxxxxx Merger (together with all related materials distributed to Raytheon's
stockholders and/or filed with the Securities and Exchange Commission with
respect to the Xxxxxx Merger), as supplemented or amended from time to time
(the "Class B Registration Statement"), or Raytheon's proxy or consent
solicitation statement with respect to the Xxxxxx Merger (together with all
related materials distributed to Raytheon's stockholders and/or filed with
the Securities and Exchange Commission with respect to the Xxxxxx Merger), as
supplemented or amended from time to time (the "Raytheon Proxy Statement"),
at the time of effectiveness or, in the case of the Raytheon Proxy Statement,
at the date of mailing and at the date of voting or consent and approval with
respect thereto, will contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they are made, not misleading. The portions of the Class B
Registration Statement and the
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Raytheon Proxy Statement which relate only to GM (except as such
portions relate to Xxxxxx or its subsidiaries) will comply as to form in all
material respects with the provisions of the Securities Act and the Exchange
Act. For purposes of this Section 2.8, "Xxxxxx" shall mean Xxxxxx after
giving effect to the consummation of the HEC Reorganization, as if the HEC
Reorganization had been consummated as of the date of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RAYTHEON
In order to induce GM to enter into this Agreement,
Raytheon hereby represents and warrants to GM that the statements contained
in this Article III are true, correct and complete.
Section 3.1 Organization and Good Standing. Raytheon is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware with full power and authority (corporate and
other) to own, lease, use and operate its properties and to conduct its
business as and where owned, leased, used, operated and conducted. Raytheon
is duly qualified to do business and in good standing in each jurisdiction in
which the nature of the business conducted by it or the property it owns,
leases, uses or operates make such qualification necessary, except where the
failure to be so qualified or in good standing in such jurisdiction would not
have a material adverse effect on Raytheon. Raytheon is not in default in
the performance, observance or fulfillment of any provision of its
certificate of incorporation or bylaws.
Section 3.2 Corporate Power and Authority. Raytheon has all
requisite corporate power and authority to enter into this Agreement and all
other Transaction Agreements to which it is or will be a party and to
consummate the transactions on its part contemplated hereby and thereby. The
execution and delivery of this Agreement and, subject to the approval of
Raytheon Stockholders (as defined in the Xxxxxx Merger Agreement), the
consummation of the transactions on its part contemplated hereby have been
duly authorized by all necessary corporate action on the part of Raytheon.
This Agreement has been duly executed and delivered by Raytheon, and
constitutes the legal, valid and binding obligation of Raytheon, enforceable
against it in accordance with its terms. The execution and delivery of each
of the Transaction Agreements to which Raytheon is or will be a party and the
consummation on its part of the transactions contemplated thereby have been,
or prior to the execution thereof by Raytheon, will be, duly authorized by
all necessary corporate action (subject, in the case of the Xxxxxx Merger
Agreement, to the approval of Raytheon Stockholders), and when so executed
and delivered, will constitute the legal, valid and binding obligation of
Raytheon, enforceable against Raytheon in accordance with its terms.
Section 3.3 Xxxxxx Merger Agreement. Raytheon hereby
represents and warrants to GM with respect to each of the matters set forth
in Article IV of the Xxxxxx Merger Agreement to the full extent set forth
therein as though such representations and warranties were made by Raytheon
to GM in this Agreement.
Section 3.4 GM Proxy/Consent Solicitation Statement. None
of the information provided by or on behalf of Raytheon for inclusion in the
Proxy/Consent Solicitation Statement, at the date of effectiveness, at the
date of mailing and at the date of voting or consent and approval with
respect thereto, will contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make
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the statements therein, in light of the circumstances under which they
are made, not misleading. The portions of the Proxy/Consent Solicitation
Statement which relate only to Raytheon will comply as to form in all
material respects with the provisions of the Securities Act and the Exchange
Act.
ARTICLE IV
COVENANTS AND AGREEMENTS OF THE PARTIES
Section 4.1 Mutual Covenants.
(a)General. Subject to the terms and provisions of this
Agreement, each of the Parties hereto shall, and shall cause its subsidiaries
to, use all commercially reasonable efforts to take all actions and to do
all things necessary, proper or advisable to consummate the transactions
contemplated hereby and by the other Transaction Agreements, including,
without limitation, with respect to the satisfaction of the conditions set
forth in Section 3 of the Xxxxxx Distribution Agreement.
(b)Notification of Certain Matters. Each of the Parties
hereto shall give prompt notice to the other of (i) the occurrence or
non-occurrence of any event the occurrence or non-occurrence of which would
cause either Party's representation or warranty contained in this Agreement
to be untrue or inaccurate at or prior to the Effective Time (as defined in
the Xxxxxx Merger Agreement) and (ii) any material failure of either Party
hereto to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section 4.1(b) shall not limit or
otherwise affect the remedies available hereunder to either Party.
(c)HSR Act. As soon as practicable, and in any event no
later than ten (10) business days after the date hereof, each of the Parties
hereto shall file any Notification and Report Forms and related material
required to be filed by it with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the HSR
Act with respect to the Xxxxxx Merger and shall promptly make any further
filings pursuant thereto that may be necessary, proper or advisable. Each of
Raytheon and GM shall furnish to the other such information and assistance as
the other reasonably may request in connection with the preparation of any
submissions to, or agency proceedings by, any Governmental Authority under
the HSR Act or any comparable state laws or comparable laws of foreign
jurisdictions, and each of Raytheon and GM shall keep the other promptly
apprised of any communications with, and inquiries or requests for
information from, such Governmental Authorities. Each of Raytheon and GM
hereby agrees to use its best efforts to cause the condition set forth in
Section 6.1(b) of the Xxxxxx Merger Agreement to be satisfied, including,
without limitation, by disposing of or holding separate, or agreeing to
dispose of or hold separate, any assets (but in the case of GM, only Xxxxxx
Assets, as defined in the Separation Agreement). Each of Raytheon and GM
hereby agrees to use its best efforts to cooperate and assist in any defense
by the other party hereto of the Xxxxxx Merger before any Governmental
Authority reviewing the Xxxxxx Merger, including by promptly providing such
information as may be requested by such Governmental Authority or such
assistance as may be reasonably requested by the other party in such defense.
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Section 4.2 Covenants of GM.
(a)No Solicitation. GM agrees that, during the term of
this Agreement, without the consent of Raytheon, it shall not, and shall not
authorize or permit any of its subsidiaries or any of its or its
subsidiaries' directors, officers, employees, agents or representatives,
directly or indirectly, to solicit, initiate, knowingly encourage or
facilitate, or furnish or disclose non-public information in furtherance of,
any inquiries or the making of any proposal with respect to any Competing
Transaction (as defined in the Xxxxxx Merger Agreement) relating to the
Defense Business or the consummation of which would otherwise result in the
termination or material breach of any of the Transaction Agreements, or
negotiate, explore or otherwise engage in discussions with any person (other
than Raytheon or its respective directors, officers, employees, agents and
representatives) with respect to any Competing Transaction or enter into any
agreement, arrangement or understanding therefor requiring them to abandon,
terminate or fail to consummate the Xxxxxx Merger except and to the extent
(including compliance by GM with the conditions set forth therein) that
Xxxxxx could do so pursuant to the terms of Section 5.1(k) of the Xxxxxx
Merger Agreement.
(b)Transaction Agreements. Subject to the terms and
provisions of this Agreement, GM shall, and shall cause its subsidiaries to,
enter into the Transaction Agreements, as and when contemplated hereby and
thereby. GM agrees that it will consult with Raytheon regarding any
changes, amendments or additions that are proposed to be made to any such
agreement prior to the Effective Time, whether before or after any such
agreement is entered into by the respective parties thereto. Except for any
amendment or change to the Xxxxxx Distribution Agreement to reflect the
determination of the Xxxxxx Distribution Ratio or the terms of the new GM
common stock to be set forth in Exhibit A thereto and except for any
amendment to the Xxxxxx Distribution Agreement as required pursuant to
Section 1.2 hereof, GM shall not permit any such change, amendment or
addition to be made prior to the Effective Time to the forms or terms of any
such agreement without Raytheon's consent (which consent shall not be
unreasonably withheld or delayed), unless such change, amendment or addition
could not reasonably be foreseen (i) to have an adverse effect on the
business, assets, liabilities or financial condition of Xxxxxx (after giving
effect to the consummation of the HEC Reorganization) or, following the
Effective Time, the Surviving Corporation or (ii) to delay materially the
consummation of the Xxxxxx Merger on the terms and subject to the conditions
of this Agreement and the other Transaction Agreements. Unless this
Agreement has been terminated, GM agrees that it shall not, and shall not
permit any of its subsidiaries to, terminate (except as may be permitted by
the terms thereof) or waive any condition of any of the Transaction
Agreements (other than the Xxxxxx Merger Agreement), without the prior
written consent of Raytheon. GM shall not permit Xxxxxx to make prior to the
Effective Time any formal election expressly referenced in the Separation
Agreement to be made by Xxxxxx unless any such election is acceptable to
Raytheon.
(c)Preparation of SEC Documents. GM shall promptly
furnish Raytheon with all information concerning GM (except as it relates to
Xxxxxx or its subsidiaries) as may be reasonably requested by Raytheon for
inclusion in the Class B Registration Statement or the Raytheon Proxy
Statement. If at any time prior to the Effective Time, any information
pertaining to GM (except as it relates to Xxxxxx or its subsidiaries)
contained in or omitted from the Class B Registration Statement or the
Raytheon Proxy Statement makes such statements contained therein false or
misleading, GM shall promptly inform Raytheon thereof and GM shall promptly
provide the information necessary to
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make the statements contained therein not false or misleading. For
purposes of this Section 4.2(c), "Xxxxxx" shall mean Xxxxxx after giving
effect to the consummation of the HEC Reorganization, as if the HEC
Reorganization had been consummated as of the date of this Agreement.
Section 4.3 Covenants of Raytheon.
(a)Preparation of SEC Documents. Raytheon shall
promptly furnish GM with all information concerning it as may be reasonably
requested by GM for inclusion in the Proxy/Consent Solicitation Statement.
Raytheon shall cooperate with GM in the preparation of the Proxy/Consent
Solicitation Statement. If at any time prior to the Effective Time, any
information pertaining to Raytheon contained in or omitted from the
Proxy/Consent Solicitation Statement makes such statements contained therein
false or misleading, Raytheon shall promptly inform GM thereof and Raytheon
shall promptly provide the information necessary to make the statements
contained therein not false or misleading.
(b)Letter of Accountants. Raytheon shall use all
commercially reasonable efforts to cause to be delivered to GM in connection
with the Proxy/Consent Solicitation Statement two letters from Raytheon's
independent accountants, one dated a date within two business days before the
date on which the Proxy/Consent Solicitation Statement shall become effective
and one dated a date within two business days before the date on which the
Proxy/Consent Solicitation Statement is mailed to GM's common stockholders,
in each case addressed to GM, in form and substance reasonably satisfactory
to GM and customary in scope and substance for comfort letters delivered by
independent public accountants in connection with registration statements and
proxy or consent solicitation statements similar to the Proxy/Consent
Solicitation Statement.
(c)Cooperation Regarding Tax Rulings and Opinions.
Raytheon shall promptly furnish GM with all information concerning it as may
be reasonably requested by GM (i) for inclusion in any request for rulings
and supplemental submissions ("Ruling Requests") filed by GM with the
Internal Revenue Service of the U.S. Department of Treasury (the "IRS") with
respect to the Xxxxxx Merger and the GM Transactions, including any
supplemental rulings sought from the IRS by GM to ensure the Tax-Free Status
of the EDS Split-Off (as defined in the Xxxxxx Distribution Agreement), and
(ii) for use by GM's counsel in preparing any tax opinions requested by GM
from such counsel with respect to the Xxxxxx Merger and the GM Transactions
(the "Tax Opinions"). Raytheon shall cooperate fully with GM in the
preparation of the Ruling Requests and supplemental submissions to the IRS,
and shall make its officers, employees, advisers and others associated with
Raytheon available for meetings with GM and the IRS as reasonably requested
by GM. Raytheon shall provide GM with such representations and warranties as
may be requested by the IRS or reasonably requested by GM in connection with
the Ruling Requests or Tax Opinions. To the extent that Raytheon has any
shareholders who beneficially own, directly or indirectly, five percent or
more of the stock of Raytheon, Raytheon shall take such commercially
reasonable actions as are necessary to obtain any representations or
warranties from such shareholders as may be requested by the IRS or
reasonably requested by GM in connection with the Ruling Requests or Tax
Opinions. GM shall provide to Raytheon for its review and comment a draft of
any Ruling Requests prior to the submission thereof to the IRS and shall
allow Raytheon sufficient time to comment thereon. GM shall consider in good
faith all comments timely received from Raytheon on any Ruling Request.
Notwithstanding the foregoing, the form and substance of the Ruling
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Requests shall be solely in the discretion of GM and GM shall not be
required to delay the filing of any Ruling Request pending the receipt or
consideration of comments from Raytheon not timely received by GM. GM shall
provide Raytheon with the opportunity to participate in meetings with the IRS
regarding the Ruling Requests.
ARTICLE V
TERMINATION AND AMENDMENT
Section 5.1 Termination. This Agreement may be terminated
at any time prior to the Effective Time:
(a)by mutual written consent of GM and Raytheon;
(b)by either of GM or Raytheon at any time following the
termination of either of the Xxxxxx Merger Agreement or the Xxxxxx
Distribution Agreement in accordance with the terms thereof;
(c)by either of GM or Raytheon in the event of either:
(i) a material breach by the other Party of any representation or warranty
contained herein which breach cannot be or has not been cured within 30 days
after the giving of written notice to the breaching Party of such breach; or
(ii) a material breach by the other Party of any of the covenants or
agreements contained herein, which breach cannot be or has not been cured
within 30 days after the giving of written notice to the breaching Party of
such breach;
(d)by GM in the event that its Board of Directors
determines in good faith that it is unable to determine a Xxxxxx Distribution
Ratio as contemplated by Section 1.1 hereof;
(e)by GM in the event that its Board of Directors
determines in good faith, in the exercise of its fiduciary obligations under
applicable law, on the basis of oral or written advice of outside counsel,
(i) that it either is unable to include in the Proxy/Consent Solicitation
Statement its recommendation in favor of the GM Transactions as then set
forth in the Xxxxxx Distribution Agreement or must revoke or withdraw the
same and (ii) that the foregoing determination could not reasonably be
avoided by adjusting the Xxxxxx Distribution Ratio so as to satisfy the
conditions set forth in the first sentence of Section 1.1 hereof as of the
date of such adjustment; or
(f)by Raytheon in the event that (i) the GM Board of
Directors shall have made a determination described in Section 5.1(d) or
Section 5.1(e) and shall not have terminated this Agreement within 10
business days thereof, (ii) the GM Board of Directors shall not have
determined a Xxxxxx Distribution Ratio as contemplated by Section 1.1 hereof
by the date which is 30 business days after the latest of (x) the receipt by
GM of the Ruling (as defined in the Xxxxxx Distribution Agreement), (y) the
receipt by GM of the Supplemental Ruling (as defined in the Xxxxxx
Distribution Agreement) and (z) the satisfaction of the conditions set forth
in Section 6.1(b) of the Xxxxxx Merger Agreement, or (iii) following the
determination of the Xxxxxx Distribution Ratio, (A) GM shall fail to include
in the Proxy/Consent Solicitation Statement the recommendation of the GM
Board of Directors in favor of the GM Transactions as then set forth in the
Xxxxxx Distribution Agreement or (B) the Board of Directors of GM shall
withdraw or modify in any adverse manner its approval or recommendation of
the GM Transactions or fail to reaffirm such approval or recommendation upon
Raytheon's request.
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Section 5.2 Effect of Termination. In the event of the
termination of this Agreement pursuant to Section 5.1 above, this Agreement
shall become void and have no effect, without any liability on the part of
either Party or its subsidiaries or their respective directors, officers or
stockholders, except as may be provided in Section 7.2 of the Xxxxxx Merger
Agreement. Notwithstanding the foregoing, nothing in this Section 5.2 shall
relieve either Party to this Agreement of liability for a willful breach of
any provision of this Agreement.
Section 5.3 Amendment. This Agreement may be amended by
the Parties hereto, by action taken or authorized by their respective Boards
of Directors, at any time before or after adoption of the Xxxxxx Merger
Agreement by Raytheon Stockholders and before or after approval of the GM
Transactions by GM's common stockholders, but after either such approval or
authorization, no amendment shall be made which by law requires further
approval or authorization by the Raytheon Stockholders or the common
stockholders of GM, as the case may be, without such further approval or
authorization. Notwithstanding the foregoing, this Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
Parties hereto.
Section 5.4 Extension; Waiver. At any time prior to the
Effective Time, GM (with respect to Raytheon) and Raytheon (with respect to
GM) by action taken or authorized by their respective Boards of Directors,
may, to the extent legally allowed, (a) extend the time for the performance
of any of the obligations or other acts of such Party, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a
Party hereto to any such extension or waiver shall be valid only if set forth
in a written instrument signed on behalf of such Party.
ARTICLE VI
MISCELLANEOUS
Section 6.1 No Survival of Representations and Warranties.
The representations and warranties made herein by the Parties hereto shall
not survive the Effective Time. This Section 6.1 shall not limit any
covenant or agreement of the Parties hereto which by its terms contemplates
performance after the Effective Time or the termination of this Agreement.
Section 6.2 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or dispatched by a nationally
recognized overnight courier service to the Parties at the following
addresses (or at such other address for a Party as shall be specified by like
notice):
(a)if to GM:
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telecopy No.: (000) 000-0000
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with a copy to:
General Motors Corporation
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
and with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, P.C.
Telecopy No.: (000) 000-0000
and with a copy to:
HE Holdings, Inc.
c/x Xxxxxx Aircraft Company
0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
and with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(b)if to Raytheon:
Raytheon Company
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
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Section 6.3 Interpretation; Absence of Presumption.
(a)For the purposes hereof, (i) words in the singular
shall be held to include the plural and vice versa and words of one gender
shall be held to include the other gender as the context requires, (ii) the
terms "hereof", "herein", "herewith" and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole
(including all of the Exhibits hereto) and not to any particular provision of
this Agreement, and Article, Section, paragraph and Exhibit references are to
the Articles, Sections, paragraphs and Exhibits to this Agreement unless
otherwise specified, (iii) the use of the word "including" and words of
similar import when used in this Agreement shall mean "including, without
limitation," unless the context otherwise requires or unless otherwise
specified, (iv) the word "or" shall not be exclusive, (v) provisions shall
apply, when appropriate, to successive events and transactions, and (vi) all
references to any period of days shall be deemed to be to the relevant number
of calendar days.
(b)The Article, Section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
(c)This Agreement shall be construed without regard to
any presumption or rule requiring construction or interpretation against the
party drafting or causing any instrument to be drafted.
(d)For the purposes of any provision of this agreement,
a "material adverse effect" with respect to any Party shall be deemed to
occur if the aggregate consequences of all breaches and inaccuracies of
covenants and representations of such Party under this Agreement, when read
without exception or qualification for a material adverse effect, are
reasonably likely to have a material adverse effect on the assets,
liabilities, results of operations or financial condition of such Party and
its subsidiaries taken as a whole.
Section 6.4 Counterparts. This Agreement may be executed in
counterparts, which together shall constitute one and the same Agreement.
The Parties may execute more than one copy of the Agreement, each of which
shall constitute an original.
Section 6.5 Entire Agreement; Severability.
(a) This Agreement (including the documents and the
instruments referred to herein) and the Confidentiality Agreement (as defined
in the Xxxxxx Merger Agreement) contain the entire agreement between the
Parties with respect to the subject matter hereof, and supersede all previous
agreements, negotiations, discussions, writings, understandings, commitments
and conversations with respect to such subject matter and there are no
agreements or understandings between the Parties other than those set forth
or referred to herein or therein.
(b)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 or
in jurisdictions 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
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substance of the transactions contemplated hereby is not affected in
any manner adverse to either Party. Upon such determination, the Parties
shall negotiate in good faith in an effort to agree upon such a suitable and
equitable provision to effect the original intent of the Parties.
Section 6.6 Definition of "subsidiary". When a reference is
made in this Agreement to a subsidiary of a Party, the term "subsidiary"
means any corporation or other organization, whether incorporated or
unincorporated, of which at least a majority of the securities or interests
having by the terms thereof ordinary voting power to elect at least a
majority of the board of directors or others performing similar functions
with respect to such corporation or other organization is directly or
indirectly owned or controlled by such Party or by any one or more of its
subsidiaries, or by such Party and one or more of its subsidiaries.
Section 6.7 Third Party Beneficiaries. The provisions of
this Agreement are solely for the benefit of the Parties and are not intended
to confer upon any person except the Parties any rights or remedies
hereunder, and there are no third party beneficiaries of this Agreement and
this Agreement shall not provide any third person with any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement.
Section 6.8 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware without regard to principles of conflicts of law.
Section 6.9 Specific Performance. In the event of any
actual or threatened default in, or breach of, any of the terms, conditions
and provisions of this Agreement, the Party or Parties who are or are to be
thereby aggrieved shall have the right to specific performance and injunctive
or other equitable relief of its rights under this Agreement, in addition to
any and all other rights and remedies at law or in equity, and all such
rights and remedies shall be cumulative. The Parties agree that the remedies
at law for any breach or threatened breach, including monetary damages, are
inadequate compensation for any loss and that any defense in any action for
specific performance that a remedy at law would be adequate is waived. Any
requirements for the securing or posting of any bond with such remedy are
waived.
Section 6.10 Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by either of
the Parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other Parties hereto. Subject to the
immediately preceding sentence, this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the Parties and their respective
successors and assigns.
* * * * *
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IN WITNESS WHEREOF, each of the undersigned, intending
to be legally bound, has caused this Agreement to be duly executed and
delivered on the date first above written.
GENERAL MOTORS CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
Name:Xxxx X. Xxxxxxxx
Its: Vice President and Treasurer
RAYTHEON COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxxxx
Name:Xxxxxxxxx X.Xxxxxxxx
Its: Executive Vice President
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