Exhibit 2
VOTING AGREEMENT
VOTING AGREEMENT ("Agreement"), dated December 17, 2001, by and
between General Electric Company, a New York corporation ("Parent"), Xxxxxxxx
Acquisition, Inc., a Delaware corporation (the "Purchaser") and Berwind LLC, a
Delaware limited liability company ("Stockholder").
A. The Board of Directors of Interlogix, Inc., a Delaware
corporation (the "Company"), has previously approved, and concurrently herewith
Parent, the Purchaser and the Company are entering into, an Agreement and Plan
of Merger of even date herewith, as may be amended from time to time (the
"Merger Agreement"). Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, Stockholder is the record and beneficial
owner of 15,736,797 shares of Common Stock, par value $0.01 per share, of the
Company (such shares together with any other shares of Common Stock acquired by
Stockholder after the date hereof being collectively referred to herein as the
"Stockholder Shares").
C. In accordance with the Merger Agreement, the Purchaser has agreed
to make, and Parent has agreed to cause the Purchaser to make, the Offer on the
terms and subject to the conditions contained in the Merger Agreement.
D. As a condition to its willingness to enter into the Merger
Agreement, the Purchaser has required that Stockholder enter into this
Agreement.
In consideration of the mutual covenants and agreements contained
herein and intending to be legally bound hereby, the parties agree as follows:
1. Agreement to Tender and Vote.
(a) Tender. In accordance with the Merger Agreement, the
Purchaser shall make, and Parent shall cause the Purchaser to make, the Offer on
the terms and subject to the conditions contained in the Merger Agreement.
Provided this Agreement has not been terminated, Stockholder hereby agrees that
Stockholder will, within ten Business Days of the commencement of the Offer,
tender the Stockholder Shares into the Offer, pursuant to and in accordance with
the terms of the Offer, and that provided this Agreement has not been
terminated, it shall not withdraw any Stockholder Shares so tendered prior to
the termination of the Offer.
(b) Voting. Prior to the termination of this Agreement, at any
meeting of the stockholders of the Company however called (or any action by
written consent in lieu of a meeting) with respect to the Merger or the Merger
Agreement or any adjournment thereof, Stockholder shall vote the Stockholder
Shares or cause them to be voted or execute written consents in respect thereof
(i) in favor of the Merger, the adoption of the Merger Agreement and the
approval of the terms thereof and the Transactions; (ii) against any action or
agreement that
would result in a breach in any material respect of any covenant or any other
obligation or agreement of the Company under the Merger Agreement or in a breach
in any material respect of any representation or warranty of the Company in the
Merger Agreement; (iii) against any Takeover Proposal; and (iv) against any
amendment of the Company Charter Documents or any other action or agreement that
is intended or could reasonably be expected to impede, interfere with, delay,
postpone or discourage the Offer or the Merger or change in any manner the
voting rights of any class of the Company Common Stock. Stockholder agrees not
to assert any statutory appraisal rights it may have under the DGCL in
connection with the Merger.
2. Representation and Warranties of the Parent and Purchaser. The
Parent and the Purchaser each hereby jointly and severally represents and
warrants to Stockholder as follows:
(a) Corporate Organization. Each of Parent and Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization and has the requisite corporate power
and authority to own or lease all of its properties and assets and to carry on
its business as it is now being conducted. Each of Parent's subsidiaries is a
corporation or other entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
requisite corporate power and authority to own or lease all of its properties
and assets and to carry on its business as it is now being conducted, except as
would not reasonably be expected to have a Parent Material Adverse Effect. Each
of Parent and its subsidiaries is duly licensed or qualified to do business in
each jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary, except where the failure to be so
licensed or qualified would not reasonably be expected to have a Parent Material
Adverse Effect.
(b) Authority. Each of Parent and Purchaser has all necessary
corporate power and authority to execute and deliver this Agreement and the
Merger Agreement and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by Parent and Purchaser of this
Agreement and the Merger Agreement, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized and approved by their
Boards of Directors and by Parent as the sole stockholder of Purchaser, and no
other corporate action on the part of Parent and Purchaser is necessary to
authorize the execution and delivery by Parent and Purchaser of this Agreement
and the Merger Agreement and the consummation by them of the transactions
contemplated hereby and thereby. Each of this Agreement and the Merger Agreement
has been duly executed and delivered by Parent and Purchaser, and, assuming due
and valid authorization, execution and delivery hereof by the other parties
hereto or thereto, is a valid and binding obligation of each of Parent and
Purchaser, enforceable against each of them in accordance with its terms, except
that such enforceability (i) may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting or relating to the enforcement of
creditors' rights generally and (ii) is subject to general principles of equity.
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(c) Consents and Approvals; No Violations.
(i) Except for (i) the filing with the SEC of the Offer
Documents and the Proxy Statement/Prospectus, if any, (ii) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware
pursuant to the DGCL, and (iii) filings, permits, authorizations, consents and
approvals as may be required under, and other applicable requirements of, the
Exchange Act, the Securities Act, the HSR Act and Foreign Antitrust Laws and
state securities or blue sky laws, no consents or approvals of, or filings,
declarations or registrations with, any Governmental Entity or the New York
Stock Exchange, Inc. are required to be obtained or made by Parent or Purchaser
in connection with the transactions contemplated by this Agreement and the
Merger Agreement, other than such other consents, approvals, filings,
declarations or registrations that, if not obtained, made or given, would not
reasonably be expected to materially delay Parent's or Purchaser's performance
of their respective material obligations under this Agreement and the Merger
Agreement or to have a Parent Material Adverse Effect. In addition, the issuance
of Parent Common Stock in connection with the Offer and the Merger is subject to
the approval of such Parent Common Stock for listing on the New York Stock
Exchange, subject to official notice of issuance, which approval Parent shall
obtain promptly after commencement of the Offer and in any case prior to the
Expiration Date.
(ii) Neither the execution and delivery of this
Agreement or the Merger Agreement by Parent or Purchaser, nor the consummation
by Parent or Purchaser of the transactions contemplated hereby or thereby, nor
compliance by Parent or Purchaser with any of the terms or provisions hereof or
thereof, will (A) conflict with or violate any provision of the certificate of
incorporation or bylaws of Parent or any of the similar organizational documents
of Purchaser or any of Parent's or Purchaser's subsidiaries or (B) assuming that
the authorizations, consents and approvals referred to in Section 2(c)(i) are
obtained, (x) violate any statute, code, ordinance, rule, regulation, judgment,
order, writ, decree or injunction applicable to Parent or any of its
subsidiaries or any of their respective properties or assets, or (y) violate,
conflict with, result in the loss of any material benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by, or
result in the creation of any Lien upon any of the respective properties or
assets of Parent or Purchaser or any of their respective subsidiaries under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument or obligation to
which Parent, Purchaser or any of their respective subsidiaries is a party, or
by which they or any of their respective properties or assets may be bound or
affected, except, in the case of clause (B) above, for such violations,
conflicts, breaches, defaults, losses, terminations of rights thereof,
accelerations or Lien creations which would not reasonably be expected to have a
Parent Material Adverse Effect or a material adverse effect on the ability of
Parent or Purchaser to consummate the transactions contemplated by this
Agreement and the Merger Agreement.
(d) Financing. Parent and the Purchaser collectively have and
will have at the Expiration Date, at the Effective Time and so long as this
Agreement has not been terminated, and Parent will make available to the
Purchaser, sufficient funds to enable the
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Purchaser to pay that portion of the Offer Price and Merger Consideration to be
paid for all outstanding Shares purchased pursuant to the Offer (including the
Stockholder Shares held by Stockholder) or converted into cash and Parent Common
Stock pursuant to the Merger, to perform Parent's and the Purchaser's
obligations under this Agreement and the Merger Agreement and to pay all fees
and expenses related to the transactions contemplated by this Agreement and the
Merger Agreement payable by them.
3. Representations and Warranties of Stockholder. Stockholder hereby
represents and warrants to the Parent and the Purchaser as follows:
(a) Ownership of Shares. Stockholder owns of record and
beneficially the number of Stockholder Shares set forth in the preamble hereto
and such Shares constitute all of the Shares owned of record or beneficially by
Stockholder. Except as disclosed on Exhibit A, Stockholder has sole voting power
and sole power of disposition with respect to all of the Stockholder Shares,
with no restrictions on Stockholder's rights of voting or disposition pertaining
thereto (except under applicable securities laws) and no other person or entity
has any right to direct Stockholder with respect to voting any of the
Stockholder Shares or approve the voting by Stockholder of any of the
Stockholder Shares or has any right to approve any amendment or modification of
this Agreement. Except as disclosed on Exhibit A, Stockholder owns all of the
Stockholder Shares, free and clear of any Lien, other than pursuant to this
Agreement.
(b) Legal Capacity; Authority Relative to this Agreement.
Stockholder has all necessary limited liability company power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by Stockholder of this Agreement have been
duly authorized and approved by all necessary limited liability company action
of Stockholder and no other limited liability company action on the part of
Stockholder is necessary to authorize the execution, delivery and performance by
Stockholder of this Agreement. This Agreement has been duly executed and
delivered by Stockholder and, assuming due and valid authorization, execution
and delivery hereof by the Parent and Purchaser, is a valid and binding
obligation of the Stockholder, enforceable against Stockholder in accordance
with its terms, except that such enforceability (i) may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to the enforcement of creditors' rights generally and (ii) is subject to general
principles of equity.
(c) Consents and Approvals; No Violations.
(i) Except for filings, permits, authorizations,
consents and approvals as may be required under, and other applicable
requirements of, the Exchange Act, the Securities Act, the HSR Act and Foreign
Antitrust Laws, no consents or approvals of, or filings, declarations or
registrations with, any Governmental Entity are required to be obtained or made
by Stockholder in connection with the transactions contemplated hereby, other
than such other consents, approvals, filings, declarations or registrations
that, if not obtained, made or given,
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would not reasonably be expected to materially delay Stockholder's performance
of its material obligations under this Agreement or to have a Material Adverse
Effect on Stockholder.
(ii) Neither the execution and delivery of this
Agreement by Stockholder, nor the performance by Stockholder of its obligations
hereunder, will (A) conflict with or violate any provision of any organizational
document of Stockholder or (B) assuming that the authorizations, consents and
approvals referred to in Section 3(c)(i) are obtained, (x) violate any statute,
code, ordinance, rule, regulation, judgment, order, writ, decree or injunction
applicable to Stockholder or any of its properties or assets, or (y) violate,
conflict with, result in the loss of any material benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by, or
result in the creation of any Lien upon any of the respective properties or
assets of Stockholder under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which Stockholder is a party, or by which it
or any of its properties or assets may be bound or affected, except, in the case
of clause (B) above, for such violations, conflicts, breaches, defaults, losses,
terminations of rights thereof, accelerations or Lien creations which would not
reasonably be expected to have a Material Adverse Effect on Stockholder or a
material adverse effect on the ability of Stockholder to perform its obligations
hereunder.
(d) Brokers. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission that is payable by the Company in connection
with the transactions contemplated by this Agreement or the Merger Agreement
based upon the arrangements made by or on behalf of Stockholder (it being
understood that the Company, as described in Section 3.19 of the Company
Disclosure Schedule, has engaged UBS as the Company's financial advisor).
4. Certain Covenants of Stockholder. Except in accordance with the
terms of this Agreement, Stockholder hereby covenants and agrees as follows:
(a) Restriction on Transfer, Proxies and Non-Interference.
Prior to the termination of this Agreement, Stockholder shall not (i) except as
contemplated by this Agreement, sell, transfer, give, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to the sale, transfer, gift, pledge, encumbrance,
assignment or other disposition of any of the Stockholder Shares (each of the
foregoing, a "Transfer"), (ii) grant any proxies, deposit any Stockholder Shares
into a voting trust or enter into a voting agreement, power of attorney or
voting trust with respect to any of the Stockholder Shares or (iii) take any
action that would make any representation or warranty of Stockholder contained
herein untrue or incorrect in any material respect or have the effect of
preventing or disabling Stockholder from performing Stockholder's obligations
under this Agreement.
(b) Additional Shares. Prior to the termination of this
Agreement, Stockholder will promptly notify the Purchaser of the number of any
new Shares acquired
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directly or beneficially by Stockholder, if any, after the date hereof. Any such
shares shall become Stockholder Shares for purposes of this Agreement.
(c) Nonsolicitation. From the date hereof until the
termination hereof, Stockholder, in its capacity as a stockholder of the
Company, will not, and will not authorize or knowingly permit any investment
bankers, attorneys, accountants, consultants and other agents or advisors
(collectively, "Representatives") of Stockholder to, directly or indirectly, (i)
solicit, or knowingly encourage or initiate the submission of any Takeover
Proposal or (ii) engage in any negotiations regarding, or furnish to any person
any nonpublic information with respect to, or take any other action knowingly to
facilitate any inquiries or the making of any proposal that constitutes, or may
be reasonably expected to lead to, any Takeover Proposal; provided, however,
that the Stockholder may furnish such information to and engage in such
discussions or negotiations with such person regarding a Takeover Proposal if at
such time the Company is permitted under the Merger Agreement to provide
information and engage in discussions or negotiations with such person regarding
a Takeover Proposal.
(d) Notice. Stockholder will notify Parent promptly (but in no
event later than 48 hours) in writing if any person shall make a proposal or
inquiry, or contact Stockholder, relating to the acquisition of beneficial
ownership of any Stockholder Shares. The notice shall state the identity of the
person and the material terms and conditions of such proposal, inquiry or
contact. Stockholder shall keep Parent reasonably apprised of any material
development with respect to such proposal. Stockholder shall, and shall cause
its Representatives to, cease immediately and cause to be terminated all
existing discussions or negotiations, if any, with any persons conducted
heretofore with respect to, or that could reasonably be expected to lead to, any
Takeover Proposal.
(e) Conduct of Stockholder. (i) Stockholder shall not adopt
any plan of complete or partial liquidation, dissolve, merge or combine with any
person or entity, or permit any change in the beneficial ownership interests of
Stockholder and (ii) Stockholder shall maintain its status as a duly organized
and validly existing limited liability company in good standing under the laws
of the State of Delaware, in each case, without the prior written consent of
Parent, which consent shall not be unreasonably withheld or delayed, provided
that Parent may withhold its consent if in its judgment permitting the requested
action would jeopardize the benefits intended to be provided to it under the
Agreement.
5. Recapture of Profits. If (A) the Merger Agreement is terminated
by the Company pursuant to Section 7.1(c)(ii) of the Merger Agreement and (B)
within nine (9) months after the date of such termination, Stockholder
consummates the sale, transfer or other disposition for value of any or all of
its Stockholder Shares to or with any person or entity not an affiliate or
associate of Parent, Purchaser or the Company (but including a sale to the
Company if such sale is a transactional element of a Takeover Proposal) (i) in
connection with a Takeover Proposal or (ii) in a transaction or series of
related transactions which would reasonably be expected to lead to or facilitate
the making or consummation of a Takeover Proposal (such sale, transfer or other
disposition of Stockholder Shares being collectively referred to as an
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"Alternative Disposition"), and (C) within nine (9) months after the date of
such termination of the Merger Agreement such Takeover Proposal or any other
Takeover Proposal is consummated, then the Stockholder shall, within three
Business Days of the closing of such Takeover Proposal, pay to Parent, the
amount of the Profit, if any, realized by Stockholder from such Alternative
Disposition, net of Stockholder's reasonably documented expenses in connection
with such Alternative Disposition, any taxes incurred by Stockholder on such
Profit and any legal fees incurred by Stockholder in connection with the
execution, delivery and performance of this Agreement; provided, however, that
the sale by Stockholder of any of its Stockholder Shares pursuant to an
underwritten public offering (so long as at the time of the closing of such
public offering there has not been publicly announced and pending a Takeover
Proposal and Stockholder does not have actual knowledge of a planned Takeover
Proposal) or a sale pursuant to Rule 144 of the Securities Act shall not be
considered an Alternative Disposition which is subject to the provisions of this
Section 5. As used in this Section, "Profit" shall be calculated on a per Share
basis and shall mean an amount equal to the excess, if any, of the per Share
proceeds received by Stockholder in such Alternative Disposition over the per
Share Offer Price (or such higher price as Parent or its affiliates may offer
for the Shares). Any such Profits received by Stockholder on such Alternative
Disposition will be paid to Parent in the same form and in the same proportion
as was received by Stockholder. Notwithstanding anything to the contrary
contained herein, under no circumstances shall the Stockholder be required to
pay to Parent an amount which would result in Stockholder retaining from such
Alternative Disposition an amount less than Stockholder would have received had
the Merger Agreement been consummated.
6. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Subject to the last sentence of subsection (c) hereunder,
Stockholder hereby irrevocably grants to, and appoints, Parent and each of its
designees (individually, an "Authorized Party" and, collectively, the
"Authorized Parties"), and each of them individually, as Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of Stockholder, to vote the Stockholder Shares, or execute one or more
written consents or approvals in respect of the Stockholder Shares, (i) in favor
of the Merger, the adoption of the Merger Agreement and the approval of the
terms thereof and the Transactions; (ii) against any action or agreement that
would result in a breach in any material respect of any covenant or any other
obligation or agreement of the Company under the Merger Agreement or in a breach
in any material respect of any representation or warranty of the Company in the
Merger Agreement; (iii) against any Takeover Proposal; and (iv) against any
amendment of the Company Charter Documents or any other action or agreement that
is intended or could reasonably be expected to impede, interfere with, delay,
postpone or discourage the Offer or the Merger or change in any manner the
voting rights of any class of the Company Common Stock. Notwithstanding anything
contained herein to the contrary, such irrevocable proxy will not be exercised
by any Authorized Party unless Stockholder breaches its obligations under
Section 1(b) of this Agreement.
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(b) Stockholder represents that any proxies heretofore given
in respect of the Stockholder Shares are revocable, and that any such proxies
have been or are hereby revoked.
(c) Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 6 is given in connection with the execution of the Merger
Agreement and that such irrevocable proxy is given to secure the performance of
the duties of Stockholder in accordance with this Agreement. Stockholder hereby
further affirms that the irrevocable proxy granted hereby is coupled with an
interest and may under no circumstances be revoked, except as otherwise provided
in this Agreement. Stockholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable prior to
termination of this Agreement in accordance with the provisions of Section
212(e) of the DGCL. Such irrevocable proxy shall be valid until the termination
of this Agreement pursuant to Section 9. Notwithstanding anything contained
herein to the contrary, this irrevocable proxy shall automatically terminate
upon the termination of this Agreement.
(d) Any action taken by any such party pursuant to the proxy
granted under this Section 6(a) shall provide that Stockholder may revoke such
action effective upon termination of this Agreement.
7. Further Assurances. From time to time, at the request of any
other party and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as may be
reasonably required to consummate and make effective, in the most expeditious
manner practicable, the Offer and the Merger and the transactions contemplated
by this Agreement and the Merger Agreement.
8. Certain Events. Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Stockholder Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Stockholder Shares shall pass, whether by operation of law or otherwise,
including Stockholder's administrators or successors. In the event of any stock
split, stock dividend, merger, reorganization, recapitalization or other change
in the capital structure of the Company affecting the Company Common Stock or
other voting securities of the Company, the number of Stockholder Shares shall
be deemed adjusted appropriately and this Agreement and the obligations
hereunder shall attach to any additional shares of Company Common Stock or other
voting securities of the Company issued to or acquired by Stockholder.
9. Termination. This Agreement shall terminate on the first to occur
of (a) the day after any of the Shares are accepted for payment pursuant to the
Offer, provided that the Stockholder has complied with its agreements contained
in Section 1(a); (b) the Effective Time; (c) the termination of the Merger
Agreement; and (d) 180 calendar days after the date hereof. Notwithstanding the
foregoing, (i) the provisions of Section 10 (Miscellaneous) shall survive the
termination of this Agreement and (ii) if this Agreement is terminated as the
consequence of the termination of the Merger Agreement pursuant to Section
7.1(c)(ii) of the
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Merger Agreement, the provisions of Section 5 (Recapture of Profits) and Section
4(e) (Conduct of Stockholder) shall survive termination of this Agreement and
shall terminate (a) nine (9) months after termination of the Merger Agreement,
if no Alternative Disposition has occurred within such nine (9) months or (b) at
such time as Stockholder has discharged its obligations under Section 5 hereof,
if an Alternative Disposition has occurred within nine (9) months after
termination of the Merger Agreement. Stockholder shall have the right to
terminate this Agreement by written notice to Parent if the terms of the Merger
Agreement or the Offer are amended or waived without the written consent of
Stockholder, but only if such amendment or waiver creates any additional
condition to the Offer, reduces the Offer Price or the Merger Consideration,
changes the form or mix of the Offer Price or Merger Consideration or otherwise
adversely affects Stockholder; provided that for the purposes of this sentence,
the term "Merger Agreement" shall mean the Agreement and Plan of Merger by and
among the Parent, the Purchaser and the Company of even date herewith, as in
effect on the date hereof, and capitalized terms used in this sentence shall
have the meaning given such terms therein.
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof.
(b) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that the Parent may assign, in its sole
discretion, any or all of its rights hereunder to any direct or indirect wholly
owned subsidiary of Parent; provided that any such assignment would not cause
any delay in the consummation of the Offer or the Merger; and provided further
that no such assignment shall relieve Parent of its obligations hereunder.
Subject to the 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. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
(c) Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware without
giving effect to the principles of conflicts of law thereof or of any other
jurisdiction. Notwithstanding anything herein to the contrary, the parties
hereto hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of Delaware and of the United States of
America located in the State of Delaware (the "Delaware Courts") for any
litigation arising out of or relating to this Agreement (and agrees not to
commence counterclaims except in such courts), waives any objection to the
laying of venue of any such litigation in the Delaware
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Courts and agrees not to plead or claim in any Delaware Court that such
litigation brought therein has been brought in any inconvenient forum.
(e) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any of its covenants or
agreements contained in this Agreement will cause the other party to sustain
damages for which it would not have an adequate remedy at law for money damages,
and therefore in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
(f) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
(g) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(h) Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(i) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by overnight courier, by facsimile
transmission with confirmation of receipt, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties as
follows:
(i) if to Parent or Purchaser, to:
GE Industrial Systems
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Xx.
Fax No.: (000) 000-0000
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with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
(ii) if to Stockholder, to:
Berwind LLC
0 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: President
with a copy to:
Berwind Group
0000 Xxxxxx Xxxxxx Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
General Counsel
Fax No.: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
(j) Stockholder Capacity. Stockholder signs this Agreement
solely in its capacity as the owner of the Stockholder Shares. Notwithstanding
anything herein to the contrary, nothing herein shall in any way restrict a
director of the Company in the exercise of his or her fiduciary duties as a
director of the Company or prevent any director of the Company from taking any
action in his or her capacity as a director of the Company.
(k) WAIVER OF JURY TRIAL. EACH OF PARENT, THE PURCHASER AND
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, THE
PURCHASER OR STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
GENERAL ELECTRIC COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
President and CEO
GE Industrial Systems
XXXXXXXX ACQUISITION, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
BERWIND LLC
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Sr. VP - Administration
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Exhibit A
1. Pursuant to a Voting Agreement dated May 2, 2000 by and among Stockholder (as
successor in interest to Berwind Group Partners), Xxxxxx X. Xxxx and MLGA Fund
II, LP, Stockholder agreed, subject to the terms of such Voting Agreement, to
vote all shares owned by it to elect Xxxxxx Xxxx as a director of the Company,
and to require any transferee of its shares to agree to be bound by the Voting
Agreement. Stockholder has entered into an agreement with Mr. Auth to terminate
the Voting Agreement effective at the Acceptance Date (as defined in the Merger
Agreement).
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