Exhibit 10.6
FORM
EMPLOYEE BENEFITS ALLOCATION AGREEMENT
THIS BENEFITS AGREEMENT is made and entered into as of this ______ day of
_________, 1997 by and among GENERAL SEMICONDUCTOR, INC. a Delaware corporation
("GS"), NEXTLEVEL SYSTEMS, INC., a Delaware corporation ("NEXTLEVEL SYSTEMS"),
and COMMSCOPE, INC., a Delaware corporation ("COMMSCOPE").
WHEREAS, pursuant to the terms of that certain Distribution Agreement by
and among the parties hereto and dated as of June 12, 1997 (the "Distribution
Agreement"), the parties have entered into this Agreement regarding certain
employment, compensation and benefit matters occasioned by the Distributions.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement and the Distribution Agreement, each of
the parties hereto, on behalf of itself and each other member of its Group over
which it has direct or indirect legal or effective control, hereby agrees as
follows:
SECTION 1. Definitions. The following terms, when capitalized herein, shall
have the meanings set forth below in this Section 1. All other capitalized terms
which are used but are not otherwise defined herein shall have the meanings
ascribed to them in the Distribution Agreement.
"ACTIVE EMPLOYEES" means, with respect to each Group, all employees
regularly engaged in the performance of services to, for or on behalf of
any member of such Group as of the close of business on the NextLevel
Systems Distribution Date.
"FORMER EMPLOYEES" means, with respect to each Group, all former
employees of GI and/or its Subsidiaries (including, but not limited to,
such employees who, as of the close of business on the NextLevel Systems
Distribution Date, are on leave of absence, long-term disability or layoff
with recall rights and the dependents of those persons) who, if they were
regularly engaged in the performance of services to, for or on behalf of
GI or any of its Subsidiaries at the close of business on the NextLevel
Systems Distribution Date, would be an Active Employee of such Group,
determined on a basis consistent with the determination of the Active
Employees of such Group and shall, with respect to GS, include former
employees of previously disposed of businesses, discontinued operations and
the corporate office of GI.
"GS SALARIED WELFARE PLANS" means, collectively, the General
Instrument Corporation Group Welfare Benefits Plan and the General
Instrument Corporation Cafeteria Plan.
SECTION 2. General Employment Matters.
2.01. GENERAL OBLIGATIONS. Except as specifically provided herein,
from and after the Distribution Date, each of GS, NextLevel Systems and
CommScope shall (and shall, as applicable, cause each of the other members of
its respective Group over which it has direct or indirect legal or effective
control to) (a) continue the employment of all of the Active Employees of its
respective Group, subject, however to the terms of Section 2.03 below and (b)
except as otherwise specifically provided herein, pay, perform and discharge
any and all labor, employment, compensation and benefit liabilities, whether
arising prior to, on or after the NextLevel Systems Distribution Date, with
respect to all such Active Employees and all Former Employees of its
respective Group. Except as specifically provided herein, each of GS,
NextLevel Systems and CommScope shall be solely responsible for the Former
Employees of its respective Group.
2.02. INITIAL COMPENSATION OF ACTIVE EMPLOYEES. The initial
compensation (base salary or wage level) of each Active Employee of each Group
shall be the same as the compensation (base salary or wage level) of such Active
Employee immediately prior to the NextLevel Systems Distribution Date.
2.03. NO ADDITIONAL EMPLOYMENT RIGHTS CREATED. Nothing in this
Agreement shall give any Active Employee of any Group any right to continued
employment by any member of that Group or any other Group beyond the
NextLevel Systems Distribution Date, which is in addition to or supplemental
to any such right he or she may have arising under contract or otherwise.
SECTION 3. United States Salaried Pension and Savings Plan Benefits.
3.01. DEFINED BENEFIT PLANS.
(a) Effective as of June 30, 1997, and subject to the occurrence of
the NextLevel Systems Distribution, Next Level Communications (a member of
the NextLevel Group) shall cease to be a sponsor of the General Instrument
Corporation Pension Plan for Salaried and Hourly Paid Non-Union Employees
(the "Pension Plan"), and GS and the members of the GS Group shall be the
only sponsors of the Pension Plan. Effective as of July 1, 1997, and
subject to the occurrence of the NextLevel Systems Distribution, NextLevel
Systems shall establish a defined benefit plan (the "NextLevel Systems
Pension Plan") for the benefit of the Active Employees and Former Employees
of the NextLevel Group who were, immediately prior to such effective date,
participants in the Pension Plan. Upon the transfer of assets contemplated
in Section 3.01(c), all liabilities for benefits accrued under the Pension
Plan through June 30, 1997 in respect of the Active Employees and Former
Employees of the NextLevel Group shall be transferred from the Pension Plan
to the NextLevel Systems Pension Plan. The Pension Plan shall retain all
other liabilities of the Pension Plan.
(b) Promptly after the NextLevel Systems Distribution Date, GS shall
cause the actuary of the Pension Plan (the "Plan Actuary") to allocate the
assets of the Pension Plan as of June 30, 1997 between the Pension Plan and
the NextLevel Systems Pension Plan. Such allocation shall reflect the
division of liabilities set forth in Section 3.01(a) and shall be effected
in accordance with Section 4l4(l) of the Code and the regulations
thereunder, using for such purpose those actuarial assumptions prescribed by
the Pension Benefit Guaranty Corporation for calculating unfunded benefit
liabilities in connection with single employer plans terminating on June
30, 1997 (the "Assumptions"). If the fair market value of the assets of the
Pension Plan as of June 30, 1997 exceeds the present value of accrued
benefit liabilities calculated on a plan termination basis using the
Assumptions, such excess shall be allocated between the Pension Plan and the
NextLevel Systems Pension Plan in proportion to the present value of the
accrued benefit liabilities allocated to each such plan. The assets
allocable to the NextLevel Systems Pension Plan pursuant to this
Section 3.01(b) as of June 30, 1997 is hereinafter referred to as the
"Distribution Date Asset Value."
(c) As promptly as practical after the determination of the
Distribution Date Asset Value pursuant to Section 3.01(b), GS shall cause
the trustee of the Pension Plan to transfer to the trustee of the NextLevel
Systems Pension Plan the Distribution Date Asset Value (i) increased by a
proportionate share of the earnings (or decreased by a proportionate share
of losses) of the Pension Plan from June 30, 1997 until the date of
transfer (the "Interim Period") and (ii) decreased by benefit payments to
the Active Employees and Former Employees of the NextLevel Group during the
Interim Period (the "Transferred Amount"). The Transferred Amount shall be
transferred in cash or other property as may be agreed between the
trustees of the respective plans.
(d) During the Interim Period, the Pension Plan shall make all
benefit payments that become due in respect of the Active Employees and
Former Employees of the NextLevel Group to the extent such benefits were
accrued under the Pension Plan through June 30, 1997.
(e) All calculations required under this Section 3.01 shall initially
be made by the Plan Actuary. The Plan Actuary shall provide to the actuary
for the NextLevel Pension Plan (the "NextLevel Actuary"), for review, all
calculations made pursuant to this Section 3.01, together with all
supporting
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documentation, work papers, census data and other information reasonably
requested by the NextLevel Actuary. If the Plan Actuary and the NextLevel
Actuary cannot agree on the determination of the Transferred Amount, a
third actuary, mutually agreeable to GS and NextLevel Systems, shall be
appointed, whose determination of the Transferred Amount shall be binding
on all parties; provided, however, that the amount determined by the third
actuary may not be lower than the lowest amount nor higher than the highest
amount determined by the Plan Actuary and the NextLevel Actuary.
3.02. COMMSCOPE, INC. EMPLOYEES PROFIT SHARING AND PLAN. CommScope
shall, immediately following the NextLevel Systems Distribution Date,
continue to sponsor the CommScope, Inc. Employees Profit Sharing and Savings
Plan (the "CommScope DC Plan").
3.03 GENERAL INSTRUMENT (PUERTO RICO), INC. SAVINGS PLAN. NextLevel
Systems shall, immediately following the NextLevel Systems Distribution Date,
cause its subsidiary, General Instrument (Puerto Rico), Inc. ("GI Puerto
Rico"), to continue to sponsor the General Instrument (Puerto Rico), Inc.
Savings Plan (the "Puerto Rico Plan").
3.04. GENERAL INSTRUMENT CORPORATION SAVINGS PLAN. The active
participation in the General Instrument Corporation Savings Plan (the "GI
Savings Plan") by persons other than the Active Employees of the GS Group
shall cease effective as of June 30, 1997. In addition, as of June 30, 1997,
all members of the NextLevel Group shall cease to be sponsors of the GI Savings
Plan and the members of the GS Group shall be the only sponsors of the GI
Savings Plan.
3.05. ESTABLISHMENT OF NEXTLEVEL SYSTEMS DEFINED CONTRIBUTION PLAN.
(a) NEXTLEVEL SYSTEMS PLAN. NextLevel Systems shall establish or
make available on or with effect from July 1, 1997, subject to the
occurrence of the NextLevel Systems Distribution a defined contribution
plan for the benefit of the Active Employees of the NextLevel Systems
Group (the "NextLevel Systems DC Plan").
(b) TRANSFER OF ACCOUNT BALANCES TO NEXTLEVEL SYSTEMS DC PLANS. As
promptly as practical after the NextLevel Systems Distribution Date, GS
shall cause the trustee of the GI Savings Plan to transfer to the trustee
of the NextLevel Systems DC Plan, the account balances of each Active
Employee of the NextLevel Systems Group and each Former Employee of the
NextLevel Systems Group with respect to whom the GI Savings Plan maintains
an account as of the close of business on the NextLevel Systems
Distribution Date. Such transfers shall be equal to the value of the
transferred account balances as of the close of business on the day
preceding the date of transfer and shall be in cash, except that the
NextLevel Systems DC Plan will accept the following: (i) GS Common Stock
for the GS Common Stock fund portion of such account balances (together
with any and all of the shares of the common stock of NextLevel Systems and
CommScope distributed in connection with the Distributions); and (ii)
amounts credited to the GI Savings Plan which are held in mutual funds
which are also investment media in the NextLevel Systems DC Plan.
3.06. Each of the sponsors of the GI Savings Plan, the CommScope DC
Plan, the NextLevel Systems DC Plan and the Puerto Rico Plan shall cause
their respective plans (i) to permit the participants therein to sell from
the GS Common Stock Fund portion of the plan the shares of Common Stock of
the two entities that do not sponsor the plan immediately after the NextLevel
Systems Distribution Date, or in the case of the Puerto Rico Plan, are not
the parent corporation of such plan's sponsor immediately after the NextLevel
Systems Distribution Date and (ii) not to permit the future investment in the
shares of Common Stock of any entity that does not sponsor the plan, or in
the case of the Puerto Rico Plan, is not the parent corporation of such
plan's sponsor (except for investments in the stock of such entity indirectly
through mutual funds or other collective investment vehicles with respect to
which participants have no control over the individual investments thereof).
SECTION 4. PENSION MATTERS OUTSIDE THE UNITED STATES. With respect to the
business and operations of each Group in jurisdictions outside the United
States, each of the parties hereto shall (and, as applicable, shall cause each
other member of its Group over which it has direct or indirect legal or
effective control to) assume or retain, as the case may be, any and all pension
liabilities and attendant plans and their assets related to its Active Employees
and Former Employees.
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SECTION 5. Executive Compensation.
5.01. GI SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN. None of the Active
Employees of the NextLevel Group shall accrue any benefits under the GI
Supplemental Executive Retirement Plan (the "SERP") from and after June 30,
1997. As of the NextLevel Systems Distribution Date, NextLevel Systems shall
assume all liabilities under the SERP in respect of the Active Employees and
Former Employees of the NextLevel Group.
5.02. GI VOLUNTARY DEFERRED COMPENSATION PLAN. The participation of
the Active Employees and Former Employees of the NextLevel Systems Group and
the CommScope Group in the GI Voluntary Deferred Compensation Plan (the
"Deferred Compensation Plan") shall cease as of the NextLevel Systems
Distribution Date. As of the NextLevel Systems Distribution Date, NextLevel
Systems and CommScope shall assume the liability for the accounts of their
respective Active Employees and Former Employees in the Deferred Compensation
Plan. GS shall continue to sponsor the Deferred Compensation Plan and shall
retain all other liabilities under the Deferred Compensation Plan including
the liability for the accounts of its Active Employees and Former Employees
in the Deferred Compensation Plan. The total of each account of each Active
Employee or Former Employee of the NextLevel Systems Group and the CommScope
Group in the Deferred Compensation Plan as of the NextLevel Systems
Distribution Date shall become the opening balance of such Active Employee's
or Former Employee's account in a nonqualified deferred compensation plan
established, as of the NextLevel Systems Distribution Date, by NextLevel
Systems (the "NextLevel Systems Deferred Compensation Plan") or CommScope
(the "CommScope Deferred Compensation Plan"), as the case may be. As
promptly as practical after the NextLevel Systems Distribution Date, assets
having a fair market value as of the date of transfer equal to the
transferred account balances as of such date shall be transferred to a
successor trust established by NextLevel Systems in connection with the
NextLevel Systems Deferred Compensation Plan or to a successor trust
established by CommScope in connection with the CommScope Deferred
Compensation Plan, as the case may be. Such transferred assets shall be in
cash or such other property as may be agreed between GS and NextLevel Systems
and between GS and CommScope.
5.03. OPTIONS. Prior to the NextLevel Systems Distribution Date,
NextLevel Systems and CommScope shall establish, respectively, the NextLevel
Systems 1997 Long-Term Incentive Plan (the "NextLevel Systems Incentive
Plan") and the CommScope 1997 Long-Term Incentive Plan (the "CommScope
Incentive Plan"). Effective as of the NextLevel Systems Distribution Date,
all outstanding options in respect of GI Common Stock held immediately prior
to the NextLevel Systems Distribution (the "Current Options"): (i)(A) by
Active Employees and Former Employees (except as otherwise provided herein)
of either the NextLevel Group or the CommScope Group and (B) current
directors of GI immediately prior to the NextLevel Systems Distribution will
be replaced with substitute options in respect of NextLevel Systems Common
Stock or CommScope Common Stock, as the case may be (the "Substitute
Options"), issued under either the NextLevel Systems Incentive Plan or the
CommScope Incentive Plan; and (ii) by one Former Employee (▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇) and certain retired directors (▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇) shall be
adjusted so that, after the NextLevel Systems Distribution, in addition to
options held in respect of GS Common Stock ("GS Options"), such persons will
also hold replacement options in respect of NextLevel Systems Common Stock
and CommScope Common Stock (the "Spin-off Options"). The number of shares
with respect to which the Spin-off Options shall be granted shall be the
number of shares of NextLevel Systems Common Stock and CommScope Common Stock
that the holder of the Current Options would have received in the NextLevel
Systems Distribution if he were a holder on the NextLevel Systems
Distribution Date of that number of shares of GI Common Stock covered by the
Current Option. Such Substitute Options, GS Options, and Spin-off Options
shall be designed to preserve the economic value of the related Current
Options, and the vesting and expiration dates and other terms of the related
awards will remain in effect under the Substitute Options, GS Options, and
Spin-off Options, as applicable. Effective as of the NextLevel Systems
Distribution Date, all outstanding options in respect of GS Common Stock
held by Active Employees of the GS Group as of the NextLevel Systems
Distribution Date will be adjusted as necessary to reflect the NextLevel
Systems Distribution. The number of shares covered by the Substitute
Options, GS Options, and Spin-off Options, and the exercise price thereof
shall be calculated using the formulae set forth in Schedule 1.
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5.04. Employment and Other Agreements. CommScope shall retain or
assume, as the case may be, any and all contractual obligations to ▇▇. ▇▇▇▇▇▇▇
with respect to his employment agreement. GS shall have no further obligation
to ▇▇. ▇▇▇▇▇▇▇ with respect to his employment agreement.
SECTION 6. WELFARE BENEFITS.
6.01. GS SALARIED WELFARE PLANS. Effective on the NextLevel Systems
Distribution Date, GS shall serve as the sole sponsor of the GI Salaried
Welfare Plans from and after the NextLevel Systems Distribution Date.
6.02. ALLOCATION AND DISCHARGE OF WELFARE PLAN LIABILITIES. NextLevel
Systems shall retain or assume, as the case may be, and discharge all welfare
plan liabilities with respect to Active Employees and Former Employees of the
NextLevel Systems Group and their dependents. CommScope shall retain or assume,
as the case may be, and discharge all welfare plan liabilities with respect to
Active Employees and Former Employees of the CommScope Group and their
dependents. GS shall retain and discharge all other welfare plan liabilities
which remain after allocation of liabilities to CommScope and NextLevel Systems
under the two immediately preceding sentences, including, without limitation,
all such liabilities relating to the Active Employees and Former Employees of
the GS Group and their dependents.
SECTION 7. General.
7.01. POST-DISTRIBUTION ADMINISTRATION OF PLANS. The parties hereto
agree to administer all plans consistently herewith, and to the extent necessary
to amend their respective employee benefit plans accordingly.
7.02. COST AND EXPENSES. Each party shall bear all costs and expenses,
including but not limited to legal and actuarial fees, incurred in the design,
drafting and implementation of any and all plans and compensation structures
which it establishes or creates and the amendment of its existing plans or
compensation structures.
SECTION 8. Miscellaneous.
8.01. COMPLETE AGREEMENT; CONSTRUCTION. This Agreement and the
Distribution Agreement shall constitute the entire agreement between the parties
with respect to the subject matter hereof and shall supersede all previous
negotiations, commitments and writings with respect to such subject matter.
Notwithstanding any other provisions in this Agreement or the Distribution
Agreement to the contrary, in the event and to the extent that there shall be a
conflict between the provisions of this Agreement and the provisions of the
Distribution Agreement or any other Ancillary Agreement, this Agreement shall
control.
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8.02. OTHER ANCILLARY AGREEMENTS. This Agreement is not intended to
address, and should not be interpreted to address, the matters specifically and
expressly covered by any of the other Ancillary Agreements.
8.03. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other parties.
8.04. SURVIVAL OF AGREEMENTS. Except as otherwise expressly provided
herein, all covenants and agreements of the parties contained in this Agreement
shall survive the NextLevel Systems Distribution Date.
8.05. NOTICES. All notices and other communications to a party
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to such
party (and will be deemed given on the date on which the notice is received by
such party) at the address for such party set forth below (or at such other
address for the party as the party shall, from time to time, specify by like
notice to the other parties):
of:
If to GS, at: General Semiconductor, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
If to NextLevel Systems, at: NextLevel Systems, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
If to CommScope, at: CommScope, Inc.
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
8.06. WAIVERS. The failure of any party hereto to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
8.07. AMENDMENTS. This Agreement may not be modified or amended except
by an agreement in writing signed by the parties hereto.
8.08. ASSIGNMENT. This Agreement shall be assignable in whole in
connection with a merger or consolidation or the sale of all or substantially
all the assets of a party hereto so long as the resulting, surviving or
transferee entity assumes all the obligations of the relevant party hereto by
operation of law or pursuant to an agreement in form and substance reasonably
satisfactory to the other parties to this Agreement. Otherwise, this Agreement
shall not be assignable, in whole or in part, directly or indirectly, by any
party hereto without the prior written consent of the others, and any attempt to
assign any rights or obligations arising under this Agreement without such
consent shall be void.
8.09. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon, inure to the benefit of and be enforceable by the parties and
their respective permitted successors and permitted assigns.
8.10. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and the members of their respective Groups and
Affiliates, after giving effect to the Distributions, and should not be deemed
to confer upon third parties any remedy, claim, liability, right of
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
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8.11. ATTORNEY FEES. A party in breach of this Agreement shall, on
demand, indemnify and hold harmless the other parties hereto for and against all
out-of-pocket expenses, including, without limitation, reasonable legal fees,
incurred by such other party by reason of the enforcement and protection of its
rights under this Agreement. The payment of such expenses is in addition to any
other relief to which such other party may be entitled hereunder or otherwise.
8.12. TITLE AND HEADINGS. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
8.13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREUNDER. WITHOUT
LIMITING THE PROVISIONS OF 8.14 AND 8.15 HEREOF, EACH OF THE PARTIES IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF (A) THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND (B) IN THE CIRCUMSTANCE SET FORTH IN
THE NEXT SENTENCE, THE SUPREME COURT OF THE STATE OF NEW YORK, FOR THE PURPOSES
OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR OF ANY
ANCILLARY AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF
THE PARTIES AGREES TO COMMENCE ANY ACTION, SUIT OR PROCEEDING RELATING HERETO
ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
OR, IF SUCH SUIT, ACTION OR OTHER PROCEEDING MAY NOT BE BROUGHT IN SUCH COURT
FOR JURISDICTIONAL REASONS, IN THE SUPREME COURT OF THE STATE OF NEW YORK, NEW
YORK COUNTY, AND IN NO OTHER FORUM. EACH OF THE PARTIES FURTHER AGREES THAT
SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO
SUCH PARTY'S RESPECTIVE ADDRESS SET FORTH ABOVE SHALL BE EFFECTIVE SERVICE OF
PROCESS FOR ANY ACTION, SUIT OR PROCEEDING IN THE FORUM PROVIDED FOR HEREIN WITH
RESPECT TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION IN THIS
SECTION. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT
OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN (I) THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, OR (II) IN THE
CIRCUMSTANCES SET FORTH IN THE SECOND SENTENCE HEREOF, THE SUPREME COURT OF THE
STATE OF NEW YORK, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
8.14. MEDIATION. In the event of a controversy, dispute or claim
arising out of, in connection with, or in relation to the interpretation,
performance, nonperformance, validity or breach of this Agreement or otherwise
arising out of, or in any way related to this Agreement or any transaction
contemplated hereby or thereby, including, without limitation, any claim based
on contract, tort, statute or constitution (collectively, "Agreement Disputes"),
the general counsels (or other chief legal officers) of the relevant parties
shall negotiate in good faith for a reasonable period of time to settle such
Agreement Dispute.
8.15. ARBITRATION. If after the reasonable period of time provided
for in Section 8.14, the relevant general counsels (or other chief legal
officers) are unable to settle an Agreement Dispute, such Agreement Dispute
shall be settled by arbitration administered by the American Arbitration
Association in accordance with its applicable Rules for Commercial
Arbitration and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. Any such arbitration shall
be commenced and all the proceedings thereof conducted in New York City. If
any such arbitration requires the consent of a non-party to this Agreement to
submit to arbitration, the party initiating the arbitration shall use
reasonable efforts to procure such consent. If such consent cannot be
procured, the initiating party shall nevertheless be bound to proceed against
all other parties herein solely by arbitration pursuant to this Section 8.15,
and shall (unless otherwise agreed by all parties herein who
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may be affected by such Agreement Dispute) be bound by Section 8.13 with respect
to claims arising out of any Agreement Disputes against a non-party to this
Agreement which is amenable to, or consents to, jurisdiction in the forum set
forth in Section 8.13.
8.16. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions,
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
8.17. SUBSIDIARIES. Each of the parties hereto shall cause to be
performed, and hereby guarantee the performance of, all actions, agreements
and obligations set forth herein to be performed by any Subsidiary of such
party which is contemplated to be a Subsidiary of such party on and after the
NextLevel Systems Distribution Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GENERAL SEMICONDUCTOR, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
NEXTLEVEL SYSTEMS. INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
COMMSCOPE, INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
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