EXHIBIT 2.2
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............................. 5
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
- i -
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......... 15
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
- ii -
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 Xxxx-
xx, Xxxxxx be an independent, publicly owned company, compris-
ing the Defense Business;
WHEREAS, in response to such requirement, GM is will-
ing 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 condi-
tions contained herein, the Master Separation Agreement, in the
form attached hereto as Exhibit B (except as provided in Sec-
tion 4.2(b) hereof) (the "Separation Agreement"), shall be ex-
ecuted and delivered prior to the consummation of the transac-
tions contemplated by the Xxxxxx Distribution Agreement;
WHEREAS, pursuant to the Xxxxxx Distribution Agree-
ment, subject to certain terms and conditions contained there-
in, 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 Xxxx-
xx 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 there-
under, 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
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 Xxx-
xxxxx have approved the Xxxxxx Merger Agreement;
NOW, THEREFORE, in consideration of the premises and
the representations, warranties, covenants and agreements here-
in 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 Distribu-
tion 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 determi-
nation 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 ef-
forts (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. Fol-
lowing 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 en-
ter 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 Dis-
tribution Agreement and (B) GM has received each of the GM Fi-
nancial Advisors Opinions with respect thereto, GM shall, and
shall cause Merger Sub to, amend the Xxxxxx Distribution Agree-
ment to reflect the Xxxxxx Distribution Ratio as so adjusted.
Section 1.3 GM Stockholder Approval Process. Fol-
lowing 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 stockhold-
ers,
- 2 -
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 incorpora-
tion and bylaws necessary to present the GM Transactions to the
holders of GM Common Stock for their consideration and ap-
proval, (ii) include in the Proxy/Consent Solicitation State-
ment the recommendation of its Board of Directors in favor of
the GM 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 solicita-
tion 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 Com-
mon 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
- 3 -
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.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GM
In order to induce Raytheon to enter into this Agree-
ment, 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 jurisdic-
tion in which the nature of the business conducted by it or the
property it owns, leases, uses or operates make such qualifica-
tion 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 requi-
site 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 contem-
plated 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 consum-
mation 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 deliv-
ered by GM, and constitutes the legal, valid and binding obli-
gation of GM, enforceable against it in accordance with its
terms. The execution and delivery of each of the other Trans-
action Agreements to which GM or any of its subsidiaries (other
than with respect to actions taken by Xxxxxx and the subsidiar-
ies 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 Sep-
aration 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.
- 4 -
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 transac-
tions on the part of GM or any such subsidiary contemplated
hereby or thereby will:
(a) conflict with, or result in a breach of any pro-
vision 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 other-
wise, 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 provi-
sions 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 subsid-
iaries 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 sub-
sidiaries (other than Xxxxxx and the subsidiaries of Xxxxxx
after giving effect to the consummation of the HEC Reorganiza-
tion) or any of their properties or assets;
(d) except as contemplated by the Xxxxxx Distribu-
tion 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 con-
summation of the HEC Reorganization) with, any third party or
any court, arbitral tribunal, administrative agency or commis-
sion or other governmental or regulatory body, agency, instru-
mentality 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 issu-
ance, (ii) actions required by the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regula-
tions 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 securi-
ties laws;
except in the case of (b), (c) and (d), for any of the forego-
ing that, individually or in the aggregate, would neither have
a material adverse effect on the ability of GM and its subsid-
iaries (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 trans-
actions.
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
- 5 -
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, Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and Salomon Brothers Inc, neither
GM nor any affiliate, stockholder, director, officer or em-
ployee 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 Agree-
ment. 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 respec-
tive per share voting power pursuant to the provisions set
forth in GM's Amended and Restated Certificate of Incorpora-
tion, 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 ob-
tained 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 sub-
sidiaries) 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 sup-
plemented or amended from time to time (the "Class B Registra-
tion 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 state-
ment of a material fact or omit to state any material fact re-
quired 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 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 re-
spects with the provisions of the Securities Act and the Ex-
change Act. For purposes of this Section 2.8, "Xxxxxx" shall
mean Xxxxxx after giving
- 6 -
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 state-
ments contained in this Article III are true, correct and com-
plete.
Section 3.1 Organization and Good Standing. Xxx-
xxxxx 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 ju-
risdiction 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. Xxx-
xxxxx 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 transac-
tions on its part contemplated hereby and thereby. The execu-
tion and delivery of this Agreement and, subject to the ap-
proval 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 nec-
xxxxxx corporate action on the part of Raytheon. This Agree-
ment has been duly executed and delivered by Raytheon, and con-
stitutes the legal, valid and binding obligation of Raytheon,
enforceable against it in accordance with its terms. The execu-
tion 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 au-
thorized by all necessary corporate action (subject, in the
case of the Xxxxxx Merger Agreement, to the approval of Xxx-
xxxxx 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 Agree-
ment to the full extent set forth therein as though such repre-
sentations and warranties were made by Raytheon to GM in this
Agreement.
Section 3.4 GM Proxy/Consent Solicitation State-
ment. None of the information provided by or on behalf of Xxx-
xxxxx for inclusion in the Proxy/Consent Solicitation State-
ment, 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 there-
in or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not mis-
leading. The portions of the Proxy/Consent
- 7 -
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 provi-
sions of this Agreement, each of the Parties hereto shall, and
shall cause its subsidiaries to, use all commercially reason-
able efforts to take all actions and to do all things neces-
sary, proper or advisable to consummate the transactions con-
templated 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 Distri-
bution 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 representa-
tion 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 submis-
sions 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 Gov-
ernmental 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 sepa-
rate, 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 Gov-
ernmental 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.
- 8 -
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 subsid-
iaries 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 Agree-
ment) 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, ex-
plore 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 under-
standing therefor requiring them to abandon, terminate or fail
to consummate the Xxxxxx Merger except and to the extent (in-
cluding 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 Agree-
ments, 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 par-
ties 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 pur-
suant 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 Re-
organization) 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 Ef-
fective Time any formal election expressly referenced in the
Separation Agreement to be made by Xxxxxx unless any such elec-
tion 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 pertain-
ing 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
- 9 -
the information necessary to 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 State-
ment. If at any time prior to the Effective Time, any informa-
tion pertaining to Raytheon contained in or omitted from the
Proxy/Consent Solicitation Statement makes such statements con-
tained therein false or misleading, Raytheon shall promptly
inform GM thereof and Raytheon shall promptly provide the in-
formation 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 indepen-
dent public accountants in connection with registration state-
ments and proxy or consent solicitation statements similar to
the Proxy/Consent Solicitation Statement.
(c) Cooperation Regarding Tax Rulings and Opin-
ions. Raytheon shall promptly furnish GM with all information
concerning it as may be reasonably requested by GM (i) for in-
clusion in any request for rulings and supplemental submissions
("Ruling Requests") filed by GM with the Internal Revenue Ser-
vice of the U.S. Department of Treasury (the "IRS") with re-
spect 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 coun-
sel in preparing any tax opinions requested by GM from such
counsel with respect to the Xxxxxx Merger and the GM Transac-
tions (the "Tax Opinions"). Raytheon shall cooperate fully
with GM in the preparation of the Ruling Requests and supple-
mental submissions to the IRS, and shall make its officers,
employees, advisers and others associated with Raytheon avail-
able 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 re-
quested 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 representa-
tions 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 Requests
- 10 -
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 Xxx-
xxxxx;
(b) by either of GM or Raytheon at any time
following the termination of either of the Xxxxxx Merger Agree-
ment 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 repre-
sentation or warranty contained herein which breach cannot be
or has not been cured within 30 days after the giving of writ-
ten 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 Direc-
tors determines in good faith that it is unable to determine a
Xxxxxx Distribution Ratio as contemplated by Section 1.1 here-
of;
(e) by GM in the event that its Board of Direc-
tors determines in good faith, in the exercise of its fiduciary
obligations under applicable law, on the basis of oral or writ-
ten advice of outside counsel, (i) that it either is unable to
include in the Proxy/Consent Solicitation Statement its recom-
mendation 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 Ra-
tio so as to satisfy the conditions set forth in the first sen-
tence 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 Distribu-
tion 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 determina-
tion of the Xxxxxx Distribution Ratio, (A) GM shall fail to
include in the Proxy/Consent Solicitation Statement the recom-
mendation of the GM Board of Directors in favor of the GM
Transactions as then set forth in the Xxxxxx
- 11 -
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.
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 sub-
sidiaries or their respective directors, officers or stockhold-
ers, 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 Transac-
tions by GM's common stockholders, but after either such ap-
proval 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. Notwith-
standing the foregoing, this Agreement may not be amended ex-
cept 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 Xxx-
xxxxx (with respect to GM) by action taken or authorized by
their respective Boards of Directors, may, to the extent xx-
xxxxx 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 con-
tained 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 af-
ter the Effective Time or the termination of this Agreement.
Section 6.2 Notices. All notices and other com-
munications 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 ser-
vice to the Parties at the following addresses (or at such
other address for a Party as shall be specified by like no-
xxxx):
- 12 -
(a) if to GM:
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telecopy No.: (000) 000-0000
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
- 13 -
(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
Section 6.3 Interpretation; Absence of Presump-
tion. (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 Exhib-
its 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 spec-
ified, (iv) the word "or" shall not be exclusive, (v) provi-
sions 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 in-
strument 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, li-
abilities, 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 origi-
nal.
- 14 -
Section 6.5 Entire Agreement; Severability. (a)
This Agreement (including the documents and the instruments
referred to herein) and the Confidentiality Agreement (as de-
fined in the Xxxxxx Merger Agreement) contain the entire agree-
ment between the Parties with respect to the subject matter
hereof, and supersede all previous agreements, negotiations,
discussions, writings, understandings, commitments and conver-
sations 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 applica-
tion of such provision to persons or circumstances or in juris-
dictions other than those as to which it has been held invalid
or unenforceable, shall remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby,
so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to
either Party. Upon such determination, the Parties shall nego-
tiate 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 organiza-
tion, 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 di-
rectly 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 provi-
sions of this Agreement are solely for the benefit of the Par-
ties 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, li-
ability, reimbursement, claim of action or other right in ex-
cess 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 equi-
table 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 opera-
tion of law
- 15 -
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.
* * * * *
- 16 -
IN WITNESS WHEREOF, each of the undersigned, intend-
ing 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
