EXHIBIT 2.2
XXXXXX SPIN-OFF SEPARATION AGREEMENT,
dated as of December 17, 1997,
by and between
HE HOLDINGS, INC.
and
GENERAL MOTORS CORPORATION
Table of Contents
Page
1. Definitions............................................................... 2
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2. Certain Intercompany Matters.............................................. 9
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2.1 Capital Stock Matters............................................. 9
2.2 Publicity......................................................... 10
2.3 Further Assurances................................................ 10
3. Expenses.................................................................. 11
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3.1 General........................................................... 11
3.2 Certain Costs Relating to Xxxxxx Common Stock..................... 11
3.3 Certain Transactions Costs........................................ 11
4. Covenants to Preserve Tax-Free Status Of Xxxxxx Spin-Off.................. 12
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4.1 Representations and Warranties.................................... 12
4.2 Restrictions on Xxxxxx............................................ 12
4.3 Cooperation and Other Covenants................................... 17
4.4 Indemnification for Tax Liabilities............................... 18
4.5 Procedure for Indemnification for Tax Liabilities................. 19
4.6 Arbitration....................................................... 20
4.7 Exclusive Remedies................................................ 21
5. Indemnification........................................................... 21
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5.1 Indemnification by Xxxxxx......................................... 21
5.2 Indemnification by GM............................................. 21
5.3 Other Liabilities................................................. 22
5.4 Tax Effects of Indemnification.................................... 22
5.5 Effect of Insurance Upon Indemnification.......................... 22
5.6 Procedure for Indemnification Involving Third-Party Claims........ 23
5.7 Procedure for Indemnification Not Involving Third-Party Claims.... 24
5.8 Exclusive Remedies................................................ 25
6. Miscellaneous............................................................. 25
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6.1 Dispute Resolution................................................ 25
6.2 Survival.......................................................... 25
6.3 Complete Agreement................................................ 25
6.4 Authority......................................................... 25
6.5 Governing Law..................................................... 25
6.6 Consent to Exclusive Jurisdiction................................. 25
6.7 Notices........................................................... 26
6.8 Amendment and Modification........................................ 27
6.9 Binding Effect; Assignment........................................ 27
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Table of Contents
Page
6.10 Third Party Beneficiaries........................................... 27
6.11 Counterparts........................................................ 28
6.12 Waiver.............................................................. 28
6.13 Severability........................................................ 28
6.14 Remedies............................................................ 28
6.15 Performance......................................................... 28
6.16 References; Construction............................................ 28
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XXXXXX SPIN-OFF SEPARATION AGREEMENT
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The XXXXXX SPIN-OFF SEPARATION AGREEMENT ("Agreement") is made and
entered into as of December 17, 1997, by and between Xxxxxx, a Delaware
corporation, and GM, a Delaware corporation. Capitalized terms used and not
otherwise defined herein are defined in Section 1 below.
RECITALS
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WHEREAS, Xxxxxx and Raytheon desire to combine the Raytheon Business
with the Xxxxxx Business;
WHEREAS, Xxxxxx and Raytheon have entered into the Xxxxxx Merger
Agreement, pursuant to which Raytheon shall merge with and into Xxxxxx, with
Xxxxxx as the surviving corporation, 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 agree that, at the time of the consummation of the
Xxxxxx Merger, Xxxxxx be an independent, publicly owned company, comprising the
Defense Business;
WHEREAS, in response to such requirement, GM and Raytheon have entered
into the Implementation Agreement and, as contemplated thereby, GM and Merger
Sub have entered into the Xxxxxx Distribution Agreement, pursuant to which,
subject to certain terms and conditions contained therein, Merger Sub shall
merge with and into GM, with GM as the surviving corporation such that, among
other things, the holders of shares of GM $1 2/3 Common Stock and the holders of
shares of GM Class H Common Stock shall receive a distribution of shares of
Xxxxxx Class A Common Stock (representing all of the outstanding common stock of
Xxxxxx) in the Xxxxxx Spin-Off;
WHEREAS, the parties intend that (a) the Xxxxxx Merger constitute a
tax-free "reorganization" within the meaning of Section 368(a) of the Code and
(b) the Xxxxxx Spin-Off qualify as a tax-free (to GM and the holders of GM
Common Stock) spin-off within the meaning of Section 355 of the Code;
WHEREAS, the parties hereto have determined that in order to accomplish
the objectives of the Xxxxxx Spin-Off and to facilitate the consumption thereof,
it is necessary and desirable to restructure certain intercompany relationships,
allocate certain liabilities and provide mutual indemnification, all as set
forth herein;
WHEREAS, the execution and delivery of this Agreement is a condition to
GM's obligation to consummate the transactions contemplated by the Xxxxxx
Distribution Agreement; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
GM, Telecom, Delco and Xxxxxx are entering into certain other agreements
relating to the HEC Reorganization, the Xxxxxx Spin-Off and/or the relationships
of the parties thereafter, including, without limitation, as
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to matters such as taxes, indemnification, employee benefits, insurance,
intellectual property, real property, transition services and shared research
and development;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereby agree as follows:
1. DEFINITIONS.
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"Active Trade or Business" means the active conduct of the trade or
business (as defined in Section 355(b)(2) of the Code) conducted by Xxxxxx
immediately prior to the Effective Time.
"Affiliate" means a Xxxxxx Affiliate, a GM Affiliate or a Raytheon
Affiliate, as the case may be.
"Business" means the Xxxxxx Business, the GM Business or the Raytheon
Business, as the case may be.
"Business Day" means any day other than a Saturday, a Sunday, or a day
on which banking institutions located in the State of New York are authorized or
obligated by law or executive order to close.
"Claim" has the meaning set forth in Section 5.7.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, together with the rules and regulations promulgated thereunder.
"Control" means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, or otherwise.
"CPR Rules" means the Rules for Non-Administered Arbitration of Business
Disputes promulgated by the Center for Public Resources, as in effect on the
date hereof.
"DGCL" means the General Corporation Law of the State of Delaware, as in
effect on the date hereof and as the same may hereafter be amended from time to
time.
"Defense Business" has the meaning ascribed to such term in the
Separation Agreement.
"Delco" has the meaning ascribe to such term in the Separation
Agreement.
"Dispute Notice" means written notice of any dispute between GM and
Xxxxxx arising out of or relating to this Agreement, which shall set forth, in
reasonable detail, the nature of the dispute.
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"Effective Time" means the date and time at which the Xxxxxx Spin-Off
Merger becomes effective.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, together with the rules and regulations promulgated
thereunder.
"GM" means General Motors Corporation, a Delaware corporation.
"GM Affiliate" means a Person that, after giving effect to the Xxxxxx
Spin-Off, directly or indirectly through one or more intermediaries, is
Controlled by GM.
"GM Business" means any business or operations of GM or any GM
Affiliates other than the Xxxxxx Business.
"GM Class H Common Stock" means the Class H Common Stock, par value
$0.10 per share, of GM.
"GM Common Stock" means the GM $1 2/3 Common Stock and the GM Class H
Common Stock and, from and after the Effective Time, the New GM Class H Common
Stock.
"GM $1 2/3 Common Stock" means the Common Stock, par value $1 2/3 per
share, of GM.
"GM Disclosure Portions" means any material set forth in, or
incorporated by reference into, either the Xxxxxx Spin-Off Registration
Statement or the Xxxxxx Merger Registration Statement (i) relating to (A)
Xxxxxx, the capital stock of Xxxxxx, the Xxxxxx Business, financial information
and data relating to Xxxxxx (including both historical and pro forma financial
data) or (B) the GM Transactions or (ii) that otherwise does not constitute a
part of a Xxxxxx Disclosure Portion. For purposes of clause (i)(A), Xxxxxx
shall include Xxxxxx only prior to the consummation of the Xxxxxx Merger and
shall not include Xxxxxx as the surviving corporation of the Xxxxxx Merger.
"GM Transactions" has the meaning ascribed to such term in the Xxxxxx
Distribution Agreement.
"GM Transfer Agent" means BankBoston, N.A., in its capacity as the
transfer agent for the GM Common Stock.
"HEC Reorganization" has the meaning ascribed to such term in the Xxxxxx
Distribution Agreement.
"Xxxxxx" means HE Holdings, Inc., a Delaware corporation, after giving
effect to the consummation of the HEC Reorganization, and, upon the consummation
of the Xxxxxx Merger, the surviving corporation of the Xxxxxx Merger.
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"Xxxxxx Affiliate" means a Person that, after giving effect to the
Xxxxxx Spin-Off, directly or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with Xxxxxx.
"Xxxxxx Business" means the Defense Business and, upon the consummation
of the Xxxxxx Merger, the Raytheon Business.
"Xxxxxx Capital Stock" means all classes or series of capital stock of
Xxxxxx.
"Xxxxxx Class A Common Stock" means the Class A Common Stock, par value
$0.01 per share, of Xxxxxx, as set forth in Xxxxxx' Certificate of Incorporation
as of immediately prior to the Effective Time.
"Xxxxxx Class B Common Stock" means the Class B Common Stock, par value
$0.01 per share, of Xxxxxx, as set forth in Xxxxxx' Certificate of Incorporation
as of immediately prior to the Effective Time.
"Xxxxxx Common Stock" means Xxxxxx Class A Common Stock and Xxxxxx Class
B Common Stock.
"Xxxxxx Disclosure Portions" means all material set forth in, or
incorporated by reference into, either the Xxxxxx Spin-Off Registration
Statement or the Xxxxxx Merger Registration Statement relating to (i) Raytheon,
the capital stock of Raytheon, the Raytheon Business, financial information and
data relating to Raytheon (including both historical and pro forma financial
data) or (ii) the Xxxxxx Merger, plans regarding Xxxxxx after the Xxxxxx Merger
and other forward-looking information regarding Xxxxxx.
"Xxxxxx Distribution Agreement" means the Agreement and Plan of Merger
by and between GM and Merger Sub, dated as of October 17, 1997, as amended from
time to time.
"Xxxxxx Merger" means the merger of Raytheon with and into Xxxxxx
pursuant to the Xxxxxx Merger Agreement, with Xxxxxx as the surviving
corporation.
"Xxxxxx Merger Agreement" means the Agreement and Plan of Merger by and
between Xxxxxx and Raytheon, dated as of January 16, 1997, as amended from time
to time.
"Xxxxxx Merger Registration Statement" means the Registration Statement
of Form S-4 filed with the SEC by Xxxxxx relating to the shares of Xxxxxx Class
B Common Stock to be issued in connection with the Xxxxxx Merger, as
supplemented or amended from time to time.
"Xxxxxx Spin-Off" means the distribution of Xxxxxx Class A Common Stock
to the holders of GM Common Stock pursuant to the Xxxxxx Spin-Off Merger
"Xxxxxx Spin-Off Merger" means the merger of Merger Sub with and into GM
pursuant to the Xxxxxx Distribution Agreement, with GM as the surviving
corporation.
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"Xxxxxx Spin-Off Registration Statement" means the Registration
Statement on Form S-4 filed with the SEC by Xxxxxx relating to the shares of
Xxxxxx Class A Stock to be distributed in connection with the Xxxxxx Spin-Off,
as supplemented or amended from time to time.
"Xxxxxx Transfer Agent" means State Street Bank & Trust Company, in its
capacity as the transfer agent for the Xxxxxx Common Stock.
"Implementation Agreement" means the Implementation Agreement by and
between GM and Raytheon, dated as of January 16, 1997, as amended from time to
time.
"Indemnifying Party" means a Person that is obligated to provide
indemnification under this Agreement.
"Indemnitee" means a Person that is entitled to seek indemnification
under this Agreement.
"Indemnity Payment" means an amount that an Indemnifying Party is
required to pay to an Indemnitee under this Agreement.
"Insurance Proceeds" means the payment received by an insured from an
insurance carrier or paid by an insurance carrier on behalf of the insured, net
of any applicable premium adjustment and tax effect.
"IRS" means Internal Revenue Service of the U.S. Department of Treasury
or any successor agency.
"Losses" means all losses, liabilities, claims, obligations, demands,
judgments, damages, dues, penalties, assessments, fines (civil or criminal),
costs, liens, expenses, forfeitures, settlements, or fees, reasonable
attorneys' fees and court costs, of any nature or kind, whether or not the same
would properly be reflected on a balance sheet, and "Loss" means any of these.
"Merger Sub" means GM Mergeco Corporation, a Delaware corporation and a
wholly-owned subsidiary of GM.
"Negotiation Period" means the period of 20 Business Days following the
initial meeting of the representatives of GM and Xxxxxx following the receipt of
a Dispute Notice.
"New GM Class H Common Stock" has the meaning ascribed to such term in
the Xxxxxx Distribution Agreement.
"Notice" means any notice, request, claim, demand, or other
communication under this Agreement.
"Person" means an individual, partnership, joint venture, corporation,
trust, unincorporated association, any other entity, or a government or any
department or agency or other unit thereof.
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"Prior Relationship" means the ownership relationships among GM, Xxxxxx,
Telecom and Delco at any time prior to giving effect to the consummation of the
HEC Reorganization and the Xxxxxx Spin-Off.
"Proposed Acquisition Transaction" means a transaction or series of
transactions as a result of which any Person or any group of related Persons
would acquire, or have the right to acquire, (i) from one or more holders of
outstanding shares of Xxxxxx Capital Stock, a number of shares of Xxxxxx Capital
Stock that would comprise more than 15% of (A) the value of all outstanding
shares of Xxxxxx Capital Stock as of the date of such transaction, or in the
case of a series of transactions, the date of the last transaction of such
series, or (B) the number of the issued and outstanding shares of Xxxxxx Class A
Common Stock or Xxxxxx Class B Common Stock as of the date of such transaction,
or in the case of a series of transactions, the date of the last transaction of
such series, or (ii) from Xxxxxx, all or a substantial portion of its assets or
business in exchange in whole or in part for equity interests in such Person or
group which are received by holders of Xxxxxx Capital Stock.
"Proposed Stock Buyback Transaction" means a transaction or series of
transactions as a result of which Xxxxxx or a Xxxxxx Affiliate would acquire, or
have the right to acquire, one or more shares of Xxxxxx Capital Stock.
"Proposed Stock Issuance Transaction" means a transaction or series of
transactions as a result of which any Person would acquire, or have the right to
acquire, from Xxxxxx or a Xxxxxx Affiliate, one or more shares of Xxxxxx Capital
Stock.
"Raytheon" means Raytheon Company, a Delaware corporation.
"Raytheon Affiliate" means a Person that directly or indirectly through
one or more intermediaries, Controls, is Controlled by, or is under common
Control with Raytheon.
"Raytheon Business" means any business or operations of Raytheon.
"Representation Date" means any date on which Xxxxxx Makes any
representation (i) to the IRS or to counsel selected by GM for the purpose of
obtaining a Subsequent Tax Opinion/Ruling, or (ii) to GM for the purpose of any
determination required to be made by GM pursuant to Section 4.2.
"Representation Letters" means the representation letters and any other
materials (including, without limitation, the ruling request and the related
supplemental submissions to the IRS) delivered or deliverable by GM and others
in connection with the rendering by Tax Counsel and the issuance by the IRS of
the Tax Opinions/Rulings, which to the extent related to Xxxxxx, Raytheon or the
Surviving Corporation (as defined in the Xxxxxx Merger Agreement) shall be in
form and substance reasonably satisfactory to Xxxxxx and Raytheon.
"Representative" means, with respect to any Person, any of such
Person's directors, officers, employees, agents, consultants, advisors,
accountants or attorneys.
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"Request" has the meaning set forth in Section 5.7.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with the rules and regulations promulgated thereunder.
"Separate Counsel" has the meaning set forth in Section 5.6(b).
"Separation Agreement" means the Master Separation Agreement by and
among GM, Telecom, Delco and Xxxxxx, dated as of December 16, 1997, as amended
from time to time.
"Service Agent" means (i) for GM, The Corporation Trust Company, with
offices on the date hereof at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx
Xxxxxx, Xxxxxxxx 00000; and (ii) for Xxxxxx, The Corporation Trust Company, with
offices on the date hereof at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of New
Castle, Delaware.
"Subsequent Tax Opinion/Ruling" means either (i) an opinion of counsel
selected by GM, in its sole and absolute discretion, confirming, in form and
substance reasonably satisfactory to GM, that, as a consequence of the
consummation of a subsequent transaction, (A) no income, gain or loss for U.S.
federal income tax purposes will be recognized by GM, the stockholders or former
stockholders of GM, or any GM Affiliate with respect to the Xxxxxx Spin-Off
and/or the Telecom Spin-Off, or (B) no income, gain or loss for U.S. federal
income tax purposes will be recognized by GM, Xxxxxx, Raytheon or any of their
Affiliates, or by Xxxxxx' stockholders (including, without limitation, GM
stockholders who become Xxxxxx stockholders as a result of the Xxxxxx Spin-Off),
with respect to the Xxxxxx Merger; or (ii) an IRS private letter ruling to the
same effect.
"Subsidiary" means with respect to any specified Person, and corporation
or other legal entity of which such Person or any of its Subsidiaries Controls
or owns, directly or indirectly, more than 50% of the stock or other equity
interest entitled to vote on the election of members to the board of directors
or similar governing body; provided, however, that for the purposes of this
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Agreement, neither Xxxxxx nor any of the Subsidiaries of Xxxxxx shall be deemed
to be Subsidiaries of GM or of any of the Subsidiaries of GM.
"Tax" means (i) any income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental (including taxes under Code Section 59A), customs duties, capital
stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on, minimum, estimated,
or other tax, assessment, or governmental charge of any kind whatsoever imposed
by any governmental authority, including any interest, penalty, or addition
thereto, whether disputed or not; (ii) liability for the payment of any amounts
of the type described in clause (i) above arising as a result of being (or
having been) a member of any group or being (or having been) included or
required to be included in any Tax Return related thereto; and (iii) liability
for the payment of any amounts of the type described in clause (i) above as a
result of any express or implied obligation to indemnify or otherwise assume or
succeed to the liability of any other Person.
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"Tax Agreement" means the Tax Sharing Agreement by and among GM, Xxxxxx
and Telecom, dated as of December 17, 1997, as amended from time to time,
relating to certain tax matters.
"Tax Counsel" means Xxxxxxxx & Xxxxx, with respect to those Tax
Opinions/Rulings deliverable to GM relating to the transactions effectuated
pursuant to the Xxxxxx Distribution Agreement, and Weil, Gotshal & Xxxxxx LLP,
with respect to the Tax Opinions/Rulings deliverable to GM and Xxxxxx relating
to the transactions effectuated pursuant to the Xxxxxx Merger Agreement.
"Tax-Free Status of the Xxxxxx Merger" means the nonrecognition of
taxable income, gain or loss for U.S. federal income tax purposes to GM, Xxxxxx,
Raytheon and their Affiliates, and to Xxxxxx' stockholders (including, without
limitation, GM stockholders who become Xxxxxx stockholders as a result of the
Xxxxxx Spin-Off) in connection with the Xxxxxx Merger.
"Tax-Free Status of the Spin-Offs" means the nonrecognition of taxable
gain or loss for U.S. federal income tax purposes to GM, GM Affiliates and GM's
stockholders in connection with the Xxxxxx Spin-Off and/or the Telecom Spin-Off.
"Tax Opinions/Rulings" means, collectively, the opinions of Tax Counsel
and the rulings by the IRS deliverable to GM in connection with (i) the
transactions contemplated by the Xxxxxx Distribution Agreement and (ii) the
transactions contemplated by the Xxxxxx Merger Agreement.
"Tax-Related Losses" means (i) all federal, state and local Taxes
(including interest and penalties thereon) imposed pursuant to any settlement,
final determination, judgment or otherwise; (ii) all accounting, legal and
other professional fees, and court costs incurred in connection with such taxes;
and (iii) all costs and expenses that may result from adverse tax consequences
to GM or GM's stockholders (including all costs, expenses and damages associated
with stockholder litigation or controversies) payable by GM or GM Affiliates.
"Telecom" has the meaning ascribed to such term in the Separation
Agreement.
"Telecom Spin-Off" means the spin-off of Telecom by Xxxxxx to GM
included as part of the HEC Reorganization.
"Third-Party Claim" means any claim, suit, arbitration, inquiry,
proceeding or investigation by or before any court, governmental or other
regulatory or administrative agency or commission or any arbitration tribunal
asserted by a Person other than GM or any GM Affiliate or Xxxxxx or any Xxxxxx
Affiliate which gives rise to a right of indemnification hereunder.
"Voting Stock" means with respect to any Person, all classes and series
of the capital stock of such Person entitled to vote generally in the election
of directors.
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2. Certain Intercompany Matters
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2.1 Capital Stock Matters.
(a) Recognition of Stockholders. From and after the Effective Time
and until such Xxxxxx Class A Common Stock is duly transferred in accordance
with applicable law, Xxxxxx shall regard the Persons who were record holders of
GM $1 2/3 Common Stock and the Persons who were record holders of GM Class H
Common Stock, in each case as of immediately prior to the Effective Time, as the
record holders of Xxxxxx Class A Common Stock, as described in and subject to
the terms of the Xxxxxx Distribution Agreement, without requiring any action on
the part of such Persons. Xxxxxx agrees that, subject to any transfers of such
stock, (i) each such holder shall be entitled to receive all dividends payable
on, and exercise voting rights and all other rights and privileges with respect
to, Xxxxxx Class A Common Stock and (ii) each such holder shall be entitled,
without any action on the part of any such holder, subject to Section 2.3 of the
Xxxxxx Merger Agreement, to receive one or more certificates representing, or
other evidence of ownership of, the shares of Xxxxxx Class A Common Stock then
held by it.
(b) GM Representations and Warranties. GM hereby covenants to
provide to Xxxxxx as soon as practicable after such information is available
from the GM Transfer Agent the number of shares of GM $1 2/3 Common Stock and
the number of shares of GM Class H Common Stock that were issued and outstanding
as of immediately prior to the Effective Time, and GM hereby represents and
warrants that, as of immediately prior to the Effective Time, all of such shares
will be validly issued, fully paid and nonassessable. GM hereby represents and
warrants that, as of immediately prior to the Effective Time, there will be (i)
no outstanding securities of GM or any of its Subsidiaries convertible into or
exchangeable for shares of GM $1 2/3 Common Stock or GM Class H Common Stock and
(ii) other than stock options granted pursuant to GM's employee benefit plans
and other than as provided in Article Fourth of GM's Amended and Restated
Certificate of Incorporation, no outstanding subscriptions, options, warrants,
rights or other arrangements or commitments to which GM is a party obligating GM
to issue any shares of GM $1 2/3 Common Stock or GM Class H Common Stock.
(c) Xxxxxx Representations and Warranties. Xxxxxx hereby represents
and warrants that, as of immediately prior to the Effective Time, (i)
102,630,503 shares of Xxxxxx Class A Common Stock will be issued and
outstanding, (ii) all of such shares will be validly issued, fully paid and
nonassessable, (iii) all of such shares will be held of record by GM, (iv) such
shares shall represent all of the issued and outstanding Xxxxxx Capital Stock,
and (v) there will be (x) no outstanding securities of Xxxxxx or any of its
Subsidiaries convertible into or exchangeable for shares of Xxxxxx Class A
Common Stock and (y) no outstanding subscription, options, warrants, rights or
other arrangements or commitments to which Xxxxxx is a party obligating Xxxxxx
to issue any shares of Xxxxxx Class A Common Stock.
(d) Cooperation of Transfer Agents; Stockholder Records. GM shall
cooperate, and shall instruct the GM Transfer Agent to cooperate, with Xxxxxx
and the Xxxxxx Transfer
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Agent, and Xxxxxx shall cooperate, and shall instruct the Xxxxxx
Transfer Agent to cooperate, with GM and the GM Transfer Agent, in
connection with the Xxxxxx Spin-Off and all other matters relating to
(i) the issuance and delivery of certificates evidencing, or other
evidence of ownership of, the shares of Xxxxxx Class A Common Stock (and
payment of cash in lieu of any fractional shares of Xxxxxx Class B
Common Stock as described in the Xxxxxx Merger Agreement) to be
distributed in respect of all shares of GM $1 2/3 Common Stock and GM
Class H Common Stock outstanding as of immediately prior to the
Effective Time and (ii) the exchange of certificates evidencing, or the
issuance of other evidence of share ownership in connection with, the
recapitalization and conversion of all shares of GM Class H Common Stock
outstanding as of immediately prior to the Effective Time into shares of
New GM Class H Common Stock. Following the Effective Time, GM shall
instruct the GM Transfer Agent to distribute letters of transmittal, in
form reasonably satisfactory to GM and Xxxxxx, to all holders of GM
Class H Common Stock as of immediately prior to the Effective Time in
connection with the exchange of certificates formerly representing
shares of GM Class H Common Stock for certificates representing, or
other evidence of ownership of, shares of New GM Class H Common Stock
and certificates representing, or other evidence of ownership of, shares
of Xxxxxx Class A Common Stock. Following the Effective Time, GM shall
instruct the GM Transfer Agent to deliver to the Xxxxxx Transfer Agent
true, correct and complete copies of the transfer records reflecting the
record holders of GM $1 2/3 Common Stock and GM Class H Common Stock, in
each case as of immediately prior to the Effective Time. Upon the
reasonable request of Xxxxxx from time to time after the Effective Time
in connection with any legitimate corporate purpose, GM shall
cooperate, or shall instruct the GM Transfer Agent to cooperate, in
providing Xxxxxx with reasonable access to all historical share,
transfer and dividend payment records with respect to the holders of GM
$1 2/3 Common Stock and GM Class H Common Stock as of immediately prior
to the Effective Time.
2.2 Publicity. Xxxxxx, with respect to Xxxxxx and all of the Xxxxxx
Affiliates, and GM, with respect to GM and all of the GM Affiliates, agree to
take all commercially reasonable action to discontinue their respective uses as
promptly after the Effective Time as is commercially reasonable of any printed
material that indicates a continued Prior Relationship between or among GM and
Xxxxxx or any of her respective Affiliates. This Section 2.2 shall not be deemed
to prohibit the use of printed material containing appropriate and accurate
references to the Prior Relationship.
2.3 Further Assurances. In addition to the actions specifically
provided for elsewhere in this Agreement, each of the parties hereto shall use
all commercially reasonable efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things commercially reasonably necessary,
proper or expeditious under applicable laws, regulations and agreements in
order to consummate and make effective the Xxxxxx Spin-Off as promptly as
reasonable practicable. Without limiting the generality of the foregoing, each
party hereto shall cooperate with the other party, and execute and deliver, or
use all commercially reasonable efforts to cause to have executed and
delivered, all instruments, including instruments of conveyance, assignment and
transfer, and to make all filings with, and to obtain all consents, approvals
or authorizations of, any domestic or foreign governmental or regulatory
authority in order to make effective the Xxxxxx Spin-Off.
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3. Expenses
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3.1 General. Except as otherwise provided in this Agreement, the
Separation Agreement and the other agreements contemplated thereby, all costs
and expenses of either party hereto in connection with the Xxxxxx Spin-Off
and/or the Xxxxxx Merger shall be paid by the party that incurs such costs and
expenses.
3.2 Certain Costs Relating to Xxxxxx Common Stock. Xxxxxx shall pay all
costs of printing and engraving with respect to certificates representing, or
other evidence of ownership of, Xxxxxx Common Stock, fees of any transfer or
exchange agent engaged by Xxxxxx, and all fees relating to listing Xxxxxx Common
Stock on any domestic or foreign stock exchange or similar organization.
3.3 Certain Transactions Costs.
(a) Certain Merger Costs to be Paid by Xxxxxx. Xxxxxx shall pay
all costs and expenses relating exclusively to the Xxxxxx Merger,
including, without limitation, all reasonable out-of-pocket costs and
expenses of printing and distributing the Xxxxxx Merger Registration
Statement and any related materials (including any proxy or consent
solicitation statement), the fees associated with filing the Xxxxxx Merger
Registration Statement and any related materials (including any proxy or
consent solicitation statement) with the SEC, the fees associated with
making any other federal, state, local or foreign governmental securities
law or other regulatory filings exclusively in connection with the Xxxxxx
Merger, the fees and expenses of the Xxxxxx Transfer Agent and any proxy or
consent solicitation agents, information agents or similar consultants
engaged by Raytheon in connection with effecting the Xxxxxx Merger. Xxxxxx
shall also pay, unless otherwise agreed between GM and Xxxxxx, the fees and
expenses of Xxxxxxx, Sachs & Co. and the fees and expenses of Weil, Gotshal
& Xxxxxx LLP in connection with the Xxxxxx Merger; provided that such
--------
fees and expenses, to the extent to be paid by Xxxxxx after the effective
time of the Xxxxxx Merger, shall be included as current liabilities on the
Closing Date Balance Sheet (as defined in the Separation Agreement).
(b) Certain Merger Costs to be Paid by GM. GM or one of its
subsidiaries shall pay all fees and out-of-pocket expenses of Xxxxxx in
connection with the Xxxxxx Merger except as contemplated by Section 3.3(a).
(c) Certain Costs to be Paid by GM. GM or one of its subsidiaries
shall pay all costs and expenses relating to the GM Transactions (other
than as provided in Section 3.2 and other than those relating exclusively
to the Xxxxxx Merger, which are addressed in Sections 3.3(a) and 3.3(b)
above), including, without limitation, all costs and expenses relating
exclusively to the Xxxxxx Spin-Off Merger, including, without limitation,
all reasonable out-of-pocket costs and expenses of printing and
distributing the Xxxxxx Spin-Off Registration Statement and any related
materials (including any proxy or consent solicitation statement), the fees
associated with filing the Xxxxxx Spin-Off Registration Statement and any
related materials (including any proxy or consent solicitation statement)
with the SEC, the fees
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associated with making any other federal, state, local or foreign
governmental securities law or other regulatory filings exclusively in
connection with the Xxxxxx Spin-Off Merger, and the fees and expenses of
the GM Transfer Agent and any proxy or consent solicitation agents,
information agents or similar consultants engaged by GM in connection
with effecting the Xxxxxx Spin-Off Merger.
4. Covenants To Preserve Tax-Free Status Of Xxxxxx Spin-Off.
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4.1 Representations and Warranties.
(a) Xxxxxx. Xxxxxx hereby represents and warrants that (i) it
has examined the Tax Opinions/Rulings and the Representation Letters,
and (ii) the facts presented and the representations made therein, to
the extent descriptive of Xxxxxx or the Xxxxxx Business or Raytheon or
the Raytheon Business (including, without limitation, the business
purposes for the Xxxxxx Spin-Off, Telecom Spin-Off and Xxxxxx Merger,
the representations in the Representation Letters and Tax
Opinions/Rulings to the extent that they relate to Xxxxxx or the Xxxxxx
Business or Raytheon or the Raytheon Business, and the plans, proposals,
intentions and policies of Xxxxxx or Raytheon), are true, correct and
complete in all material respects.
(b) GM. GM hereby represents and warrants that (i) it has
examined the Tax Opinions/Rulings and the Representation Letters, and
(ii) the facts presented and the representations made therein, to the
extent descriptive of GM or the GM Business (including, without
limitation, the business purposes for the Xxxxxx Spin-Off, Telecom Spin-
Off, the representations in the Representation Letters and Tax
Opinions/Rulings to the extent that they relate to GM or the GM
Business, and the plans, proposals, intentions and policies of GM), are
true, correct and complete in all material respects.
4.2 Restrictions on Xxxxxx.
(a) Proposed Secondary Capital Stock Transactions. Until the
first day after the two-year anniversary of the Effective Time, Xxxxxx
shall not enter into any Proposed Acquisition Transaction or, to the
extent Xxxxxx has the right to prohibit any Proposed Acquisition
Transaction, permit any Proposed Acquisition Transaction to occur
(whether by (i) redeeming rights under a stockholders rights plan, (ii)
finding a tender offer to be a "permitted offer" under any such plan or
otherwise causing any such plan to be inapplicable or neutralized with
respect to any Proposed Acquisition Transaction, or (iii) approving any
Proposed Acquisition Transaction, whether for purposes of Section 203 of
the DGCL or any similar corporate statute, any "fair price" or other
provision of Xxxxxx' charter or bylaws or otherwise) unless prior to the
consummation of such Proposed Acquisition Transaction GM has determined,
in its sole and absolute discretion, which discretion shall be exercised
in good faith solely to preserve the Tax-Free Status of the Spin-Offs
and the Tax-Free Status of the Xxxxxx Merger, that such Proposed
Acquisition Transaction would not jeopardize the Tax-Free Status of the
Spin-Offs or the Tax-Free Status of the Xxxxxx Merger.
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The foregoing shall not prohibit Xxxxxx from entering into a contract or
agreement to consummate any Proposed Acquisition Transaction if such contract or
agreement requires satisfaction of the above-described requirement prior to the
consummation of such Proposed Acquisition Transaction.
(b) Proposed Primary Capital Stock Transactions.
(i) Until the first day after the two-year anniversary of the
Effective Time, Xxxxxx shall not enter into any Proposed Stock
Issuance Transaction if, as a result of such Proposed Stock Issuance
Transaction, Xxxxxx would issue a number of shares of Xxxxxx Capital
Stock that, when aggregated with all other shares of Xxxxxx Capital
Stock issued pursuant to any Proposed Stock Issuance Transaction
occurring prior to or simultaneously with such Proposed Stock
Issuance Transaction, would cause (A) the number of shares of Xxxxxx
Class A Common Stock distributed to GM stockholders in the Xxxxxx
Spin-Off to constitute less than 80% of the total combined voting
power of all outstanding shares of Voting Stock of Xxxxxx or (B) the
issuance of outstanding shares of any class or series of Xxxxxx
Capital Stock other than Voting Stock of Xxxxxx, unless prior to the
consummation of such transaction GM has determined, in its sole and
absolute discretion, which discretion shall be exercised in good
faith solely to preserve the Tax-Free Status of the Spin-Offs and the
Tax-Free Status of the Xxxxxx Merger, that such transaction would not
jeopardize the Tax-Free Status of the Spin-Offs or the Tax-Free
Status of the Xxxxxx Merger.
(ii) Until the first day after the two-year anniversary of the
Effective Time, Xxxxxx shall not enter into any Proposed Stock
Buyback Transaction if, as a result of such Proposed Stock Buyback
Transaction, the then-outstanding shares of Xxxxxx Class A Common
Stock would constitute less than 80% of the total combined voting
power of all outstanding shares of Voting Stock of Xxxxxx, unless
prior to the consummation of such transaction GM has determined, in
its sole and absolute discretion, which discretion shall be exercised
in good faith solely to preserve the Tax-Free Status of the Spin-Offs
and the Tax-Free Status of the Xxxxxx Merger, that such transaction
would not jeopardize the Tax-Free Status of the Spin-Offs or the Tax-
Free Status of the Xxxxxx Merger.
(iii) For purposes of this Section 4.2(b), any option
(including an option issued to employees or in connection with the
performance of services), warrant or other security that would permit
or require a Person to acquire shares of Voting Stock of Xxxxxx or
other Xxxxxx Capital Stock (including the option, right or obligation
of Xxxxxx or a Xxxxxx Affiliate to acquire shares of Xxxxxx Capital
Stock), or any security convertible into or exchangeable for shares
of Voting Stock of Xxxxxx or other Xxxxxx Capital Stock, shall be
treated as if it had been fully exercised, converted or exchanged at
the time of issuance, whether or not such security is by its terms
exercisable at such time.
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(c) Amendment to Charter and Bylaws. Until the first day after the
three-year anniversary of the Effective Time, Xxxxxx shall make no amendments or
changes to its charter or bylaws that would affect the composition or size of
its Board of Directors, the manner in which its Board of Directors is elected,
and the duties and responsibilities of its Board of Directors unless GM has
determined, in its sole and absolute discretion, which discretion shall be
exercised in good faith solely to preserve the Tax-Free Status of the Spin-Offs
and the Tax-Free Status of the Xxxxxx Merger, that such amendment or change
would not jeopardize the Tax-Free Status of the Spin-Offs or the Tax-Free Status
of the Xxxxxx Merger.
(d) Continuation of Active Trade or Business. Until the first day
after the two-year anniversary of the Effective Time,
(i) Xxxxxx shall continue to conduct the Active Trade or
Business.
(ii) Subject to the last sentence of the clause (d)(iii), Xxxxxx
shall not (A) liquidate, dispose of, or otherwise discontinue the
conduct of any portion of the Active Trade or Business with a value in
excess of $1.0 billion or (B) dispose of any business or assets that
would cause Xxxxxx to be operated in a manner inconsistent in any
material respect with the business purposes for the Xxxxxx Spin-Off as
set forth in the Representation Letters and Tax Opinions/Rulings, in
each case unless GM has determined, in its sole and absolute discretion,
which discretion shall be exercised in good faith solely to preserve the
Tax-Free Status of the Spin-Offs and the Tax-Free Status of the Xxxxxx
Merger, that such liquidation, disposition, or discontinuance would not
jeopardize the Tax-Free Status of the Spin-Offs or the Tax-Free Status
of the Xxxxxx Merger.
(iii) Xxxxxx shall not under any circumstances liquidate, dispose
of, or otherwise discontinue the conduct of any portion of the Active
Trade or Business if such liquidation, disposition or discontinuance
would breach Section 4.2(e). Xxxxxx shall continue the active conduct of
the Active Trade or Business primarily through officers and employees of
Xxxxxx or its Subsidiaries (and not primarily through independent
contractors) who are not also officers or employees of GM or of any GM
Affiliates. Notwithstanding the foregoing, (A) liquidations of any of
Xxxxxx' Subsidiaries into Xxxxxx or one or more Subsidiaries directly or
indirectly controlled by Xxxxxx shall not be deemed to breach this
Section 4.2(d) and (B) Xxxxxx shall not be prohibited from liquidating,
disposing of or otherwise discontinuing the conduct of one or more
trades or businesses that constituted part of the Active Trade or
Business, or any portion thereof, provided that, in the case of this
clause (B), the aggregate value of such trades or businesses, or
portions thereof, so liquidated, disposed of or discontinued shall not
exceed $1.0 billion (as determined as of the Effective Time). For
purposes of the preceding sentence and clause (d)(ii), asset
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retirements, sale-leaseback arrangement and discontinuances of
product lines within a trade or business the active conduct of
which is continued shall not be deemed a liquidation,
disposition or discontinuance of a trade or business or portion
thereof.
(iv) Solely for purposes of this Section 4.2(d), Xxxxxx
shall not be treated as directly or indirectly controlling a
Subsidiary unless Xxxxxx owns, directly or indirectly, shares of
capital stock of such Subsidiary constituting (i) 80% or more of
the total combined voting power of all outstanding shares of
Voting Stock of such Subsidiary and (ii) 80% or more of the
total number of outstanding shares of each class or series of
capital stock of such Subsidiary other than Voting Stock.
(v) The restrictions contained in this Section 4.2(d)
shall apply only to the businesses, subsidiaries and operations
of Xxxxxx as in existence prior to the Effective Time, and shall
not be deemed to apply to those businesses, subsidiaries and
operations conducted by Raytheon prior to the Effective Time.
(e) Continuity of Business.
(i) Until the first day after the two-year anniversary
of the Effective Time, (A) Xxxxxx shall not voluntarily dissolve
or liquidate, and (B) except in the ordinary course of business,
neither Xxxxxx nor any Subsidiaries directly or indirectly
controlled by Xxxxxx shall sell, transfer, or otherwise dispose
of or agree to dispose of assets (including, for such purpose,
any shares of capital stock of such Subsidiaries) that, in the
aggregate, constitute more than (x) 60% of the gross assets of
Xxxxxx or (y) 60% of the consolidated gross assets of Xxxxxx and
such Subsidiaries, unless prior to the consummation of such
transaction GM has determined, in its sole and absolute
discretion, which discretion shall be exercised in good faith
solely to preserve the Tax-Free Status of the Spin-Offs and the
Tax-Free Status of the Xxxxxx Merger, that such transaction
would not jeopardize the Tax-Free Status of the Spin-Offs or the
Tax-Free Status of the Xxxxxx Merger. The amount of gross assets
of Xxxxxx and such Subsidiaries shall be based on the fair
market value of each such asset as of the Effective Time.
(ii) Sales, transfers or other dispositions by Xxxxxx or
any of its Subsidiaries to Xxxxxx or one or more Subsidiaries
directly or indirectly controlled by Xxxxxx shall not be
included in any determinations under this Section 4.2(e) of
whether such 60% or more of the gross assets of Xxxxxx or 60%
of the consolidated gross assets of Xxxxxx and such Subsidiaries
have been sold, transferred or otherwise disposed of.
(iii) Solely for purposes of this Section 4.2(e), Xxxxxx
shall not be treated as directly or indirectly controlling a
Subsidiary unless Xxxxxx owns, directly or indirectly, shares of
capital stock of such Subsidiary constituting (A) 80% or more of
the total combined voting power of all outstanding shares of
Voting Stock of such Subsidiary and (B) 80% or more of the total
number of outstanding shares of each class or series of capital
stock of such Subsidiary other than Voting Stock.
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(iv) The restrictions contained in this Section 4.2(e)
shall apply only to the businesses, subsidiaries and operations
of Xxxxxx as in existence prior to the Effective Time, and shall
not be deemed to apply to those businesses, subsidiaries and
operations conducted by Raytheon prior to the Effective Time.
(f) Recapitalizations, Reincorporations and Similar
Transactions.
(i) Xxxxxx shall not propose a plan of recapitalization
or amendment to its charter or other action providing for (A)
the conversion of shares of any class of Xxxxxx Common Stock
into a different class of Xxxxxx Capital Stock, (B) a change in
the absolute of relative voting rights of any class of Xxxxxx
Common Stock from the rights existing at the Effective Time, or
(C) any other action having an effect similar to that described
in clause (A) or (B), unless prior to the consummation of such
action GM has determined, in its sole and absolute discretion,
which discretion shall be exercised in good faith solely to
preserve the Tax-Free Status of the Spin-Offs and the Tax-Free
Status of the Xxxxxx Merger, that such action would not
jeopardize the Tax-Free Status of the Spin-Offs or the Tax-Free
Status of the Xxxxxx Merger.
(ii) A Proposed Acquisition Transaction will be
considered a recapitalization transaction subject to subsection
4.2(f)(i) if, as a result of such transaction, holders of Xxxxxx
Common Stock immediately before the Proposed Acquisition
Transaction will own more than 50% of the common equity of the
Person (or group of related Persons) acquiring the Xxxxxx
Capital Stock immediately after consummation of the Proposed
Acquisition Transaction, and, in such case, the Person acquiring
Xxxxxx Capital Stock pursuant to a Proposed Acquisition
Transaction shall be treated as if such Person were Xxxxxx for
purposes of this Section 4.2(f).
(g) Miscellaneous. Until the first day after the two-year
anniversary of the Effective Time, Xxxxxx shall not take, or permit any of its
Subsidiaries to take, any other actions or enter into any transaction or series
of transactions or agree to enter into any other transactions that would be
reasonably likely to jeopardize the Tax-Free Status of the Spin-Offs or the
Tax-Free Status of the Xxxxxx Merger, including any action or transaction that
would be reasonably likely to be inconsistent with any representation made in
the Representation Letters, unless prior to the consummation of such action or
transaction GM has determined, in its sole and absolute discretion, which
discretion shall be exercised in good faith solely to preserve the Tax-Free
Status of the Spin-Offs and the Tax-Free Status of the Xxxxxx Merger, that such
action or transaction would not jeopardize the Tax-Free Status of the Spin-Offs
or the Tax-Free Status of the Xxxxxx Merger. Notwithstanding the foregoing,
if and to the extent that any action or transaction is described in and
permitted pursuant to Sections 4.2(a)-(f) such action or transaction shall not
be prohibited by this Section 4.2(g).
(h) Permitted Actions and Transactions. Notwithstanding the
foregoing, the provisions of Section 4.2 shall not prohibit Xxxxxx from (i)
implementing, or otherwise complying with the provisions of, any stockholders
rights plan of Xxxxxx, (ii) consummating the Xxxxxx Merger or any of the GM
Transactions, provided that the conditions to closing
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set forth in Sections 6.1 and 6.3 of the Xxxxxx Merger Agreement have been
satisfied or properly waived and (iii) implementing any transaction upon which
the IRS has granted a favorable ruling in, or which is described in reasonable
detail in, any Tax Opinions/Ruling received from the IRS.
4.3 Cooperation and Other Covenants.
(a) Notice of Subsequent Xxxxxx Actions. Each of Xxxxxx and GM shall
furnish the other with a copy of any ruling requests or other documents
delivered to the IRS that relates to the Xxxxxx Spin-Off, Telecom Spin-Off or
the Xxxxxx Merger or that could otherwise be reasonably expected to have an
impact on the Tax-Free Status of the Spin-Offs or Tax-Free Status of the Xxxxxx
Merger.
(b) Cooperation.
(i) Each of Xxxxxx and GM shall cooperate with the other and shall
take (or refrain from taking) all such actions as the other may reasonably
request in connection with obtaining any GM determination referred to in
Section 4.2. Such cooperation shall include, without limitation, providing
any information and/or representations reasonably requested by the other
to enable either party (or counsel for such party) to obtain and maintain
any Subsequent Tax Opinion/Ruling that would permit any action described
in Section 4.2 to be taken by Xxxxxx or a Xxxxxx Affiliate. From and after
any Representation Date in connection with obtaining any such
determination or the receipt of a Subsequent Tax Opinion/Ruling and until
the first day after the two-year anniversary of the date of such
determination or receipt, neither party shall take (nor shall it refrain
from taking) any action that would have caused such representation to be
untrue unless the other party has determined, in its sole and absolute
discretion, which discretion shall be exercised in good faith solely to
preserve the Tax-Free Status of the Spin-Offs and the Tax-Free Status of
the Xxxxxx Merger, that such action would not jeopardize the Tax-Free
Status of the Spin-Offs and the Tax-Free Status of the Xxxxxx Merger.
(ii) In the event that Xxxxxx notifies GM that it desires to take
one of the actions described in this Section 4.2 and GM concludes that
such action would jeopardize the Tax-Free Status of the Spin-Offs or the
Tax-Free Status of the Xxxxxx Merger, GM shall, at the request of Xxxxxx,
elect either to (i) use all commercially reasonable efforts to obtain a
Subsequent Tax Opinion/Ruling that would permit Xxxxxx to take the
specified action, and Xxxxxx shall cooperate in connection with such
efforts, or (ii) provide all reasonable cooperation to Xxxxxx in
connection with Xxxxxx obtaining such a Subsequent Tax Opinion/Ruling in
form and substance reasonably satisfactory to GM; provided, however,
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that the reasonable costs and expenses of obtaining any such Subsequent
Tax Opinion/Ruling shall be borne by Xxxxxx.
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(c) Notice.
(i) Until all restrictions set forth in Section 4.2 have
expired, Xxxxxx shall give GM written notice of any intention to effect
or permit an action or transaction described in Section 4.2 and which is
prohibited thereunder at such time within a period of time reasonably
sufficient to enable GM to make the determination referred to in Section
4.2 or to prepare and seek any Subsequent Tax Opinion/Ruling in
connection with such proposed action or transaction. Each such notice
shall set forth the terms and conditions of the proposed action or
transaction, including, without limitation, as applicable, the nature of
any related action proposed to be taken by the Board of Directors of
Xxxxxx, the approximate number of shares of Xxxxxx Capital Stock
proposed to be transferred or issued, the approximate value of Xxxxxx'
assets (or assets of any of Xxxxxx' Subsidiaries) proposed to be
transferred, the proposed timetable for such action or transaction, and
the number of shares of Xxxxxx Capital Stock otherwise then owned by the
other party to the proposed action or transaction, all with sufficient
particularity to enable GM to make any such required determination,
including information required to prepare and seek a Subsequent Tax
Opinion/Ruling in connection with such proposed action or transaction.
All information provided by Xxxxxx to GM pursuant to this Section 4.3
shall be deemed subject to the confidentiality obligations of Article 4
of the Separation Agreement.
(ii) Promptly, but in any event within 15 days, after GM
receives such written notice from Xxxxxx, XX shall evaluate such
information and notify Xxxxxx in writing of such determination or of
GM's intent to seek a Subsequent Tax Opinion/Ruling and the proposed
date for submission of the request therefor, which date shall not be
more than 45 days after the date GM so notifies Xxxxxx of GM's intent to
seek a Subsequent Tax Opinion/Ruling, provided that such 45-day period
shall be appropriately extended for any period of noncompliance by
Xxxxxx with Section 4.3(b). GM shall notify Xxxxxx promptly, but in any
event within two Business Days, after the receipt of a Subsequent Tax
Opinion/Ruling. If GM makes a determination that an action or
transaction described in Section 4.2 would jeopardize the Tax-Free
Status of the Spin-Offs or Tax-Free Status of the Xxxxxx Merger, such
notice to Xxxxxx shall set forth, in reasonable detail, the reasons
therefor and the reasons for not receiving a Subsequent Tax
Opinion/Ruling.
4.4 INDEMNIFICATION FOR TAX LIABILITIES.
(a) General. Notwithstanding any other provision of this Agreement or
any provision of any of the Tax Agreement to the contrary but subject to Section
4.4(b), Xxxxxx shall indemnify, defend and hold harmless GM and each GM
Affiliate (or any successor to any of them) against any and all Tax-Related
Losses incurred by GM in connection with any proposed tax assessment or tax
controversy with respect to the Xxxxxx Spin-Off or the Xxxxxx Merger to the
extent caused by any breach by Xxxxxx of any of its representations, warranties
or covenants, made pursuant to this Agreement. All interest or penalties
incurred
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in connection with such Tax-Related Losses shall be computed for the time period
up to and including the date that Xxxxxx pays its indemnification obligation in
full.
(b) Exceptions to Xxxxxx' Indemnification. If GM (i) makes a
determination pursuant to any clause of Section 4.2, on the basis of a
Subsequent Tax Opinion/Ruling or otherwise, and (ii) delivers to Xxxxxx written
notice of such determination pursuant to Section 4.3(c), Xxxxxx shall have no
obligation pursuant to Section 4.4(a), except to the extent that any Tax-Related
Losses so incurred resulted from the inaccuracy, incorrectness or
incompleteness of any representation provided by Xxxxxx upon which such
Subsequent Tax Opinion/Ruling and/or determination was based.
(c) Timing and Method of Tax Indemnification Payments. Xxxxxx shall
pay any amount due and payable to GM pursuant to this Section 4.4 on or before
the 90th day following the earlier of agreement or determination that such
amount is due and payable to GM. All payments pursuant to this Section 4.4
shall be made by wire transfer to the bank account designated by GM for such
purpose, and on the date of such wire transfer Xxxxxx shall give GM notice of
the transfer.
4.5 PROCEDURE FOR INDEMNIFICATION FOR TAX LIABILITIES.
(a) Notice of Claim. If GM receives notice of the assertion of any
Third-Party Claim with respect to which Xxxxxx may be obligated under Section
4.4 to provide indemnification, GM shall give Xxxxxx notice thereof (together
with a copy of such Third-Party Claim, process or other legal pleading) promptly
after becoming aware of such Third Party Claim; provided, however, that the
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failure of GM to give notice as provided in this Section shall not relieve
Xxxxxx of its obligations under Section 4.4, except to the extent that Xxxxxx is
actually prejudiced by such failure to give notice. Such notice shall describe
such Third-Party Claim in reasonable detail.
(b) Obligation of Indemnifying Party.
(i) GM and Xxxxxx shall jointly control the defense of, and
cooperate with each other with respect to defending, any Third-Party
Claim with respect to which Xxxxxx is obligated under Section 4.4 to
provide indemnification, provided that Xxxxxx shall forfeit such joint
control right with respect to a particular Third-Party Claim if Xxxxxx
or any Xxxxxx Affiliate makes any public statement or filing, or takes
any action (including, but not limited to, the filing of any submission
or pleading, or the giving of a deposition or production of documents,
in any administrative or court proceeding) in connection with such
Third-Party Claim that is inconsistent in a material respect with any
representation or warranty made by Xxxxxx in the Agreement, the Tax
Opinions/Rulings, the Representation Letters or the Xxxxxx Merger
Agreement.
(ii) Xxxxxx and GM shall exercise their rights to jointly
control the defense of any such Third-Party Claim solely for the purpose
of defeating such Third-Party
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Claim and, unless required by applicable law, neither Xxxxxx nor GM shall
make any statements or take any actions that could reasonably result in the
shifting of liability for any Losses arising out of such Third-Party Claim
from the party making such statement or taking such action (or any of its
Affiliates) to the other party (or any of its Affiliates).
(iii) Statements made or actions taken by either Xxxxxx or GM in
connection with the defense of any such Third-Party Claim shall not
prejudice the rights of such party in any subsequent action or proceeding
between the parties.
(iv) If either GM or Xxxxxx fails to jointly defend any such
Third-Party Claim, the other party shall solely defend such Third-Party
Claim and the party failing to jointly defend shall use commercially
reasonable efforts to cooperate with the other party in its defense of such
Third-Party Claim; provided, however, that GM may not compromise or settle
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any such Third-Party Claim without the prior written consent of Xxxxxx,
which consent shall not be unreasonably withheld or delayed. All costs and
expenses of either party in connection with, and during the course of, the
joint control of the defense of any such Third-Party Claim shall be
initially paid by the party that incurs such costs and expenses. Such costs
and expenses shall be reallocated and reimbursed in accordance with the
respective indemnification obligations of the parties at the conclusion of
the defense of such Third-Party Claim.
4.6 ARBITRATION. Any dispute between the parties arising out of or
relating to this Section 4, including the interpretation of this Section 4, or
any actual or purported breach of this Section 4, shall be resolved only in
accordance with the following provisions:
(a) Negotiation. GM and Xxxxxx shall attempt in good faith to resolve any such
dispute promptly through negotiations of the parties. In the event of any such
dispute, either party may deliver a Dispute Notice to the other party, and
within 20 Business Days after the receipt of such Dispute Notice, the
appropriate representatives of GM and Xxxxxx shall meet to attempt to resolve
such dispute. If such dispute has not been resolved within the Negotiation
Period, or if one of the parties fails or refuses to negotiate such dispute, the
issue shall be settled by arbitration pursuant to Section 4.6(b). The results of
such arbitration shall be final and binding on the parties.
(b) Arbitration Procedure. Either party may initiate arbitration with regard
to such dispute by giving the other party written notice either (i) at any time
following the end of the Negotiation Period, or (ii) if the parties do not meet
within 20 Business Days of the receipt of the Dispute Notice, at any time
thereafter. The arbitration shall be conducted by three arbitrators in
accordance with the CPR Rules, except as otherwise provided in this Section 4.6.
Within 20 days following receipt of the written notice of arbitration, GM and
Xxxxxx shall each appoint one arbitrator. The two arbitrators so appointed shall
appoint the third arbitrator. If either GM or Xxxxxx shall fail to appoint an
arbitrator within such 20-day period, the arbitration shall be by the sole
arbitrator appointed by the other party. Whether selected by GM and Xxxxxx or
otherwise, each arbitrator selected to resolve such dispute
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shall be a tax attorney who is generally recognized in the tax community
as a qualified and competent tax practitioner with experience in the tax area
involved in the issue or issues to be resolved. Such arbitrators shall be
empowered to determine whether Xxxxxx is required to indemnify GM pursuant to
Section 4.4 and to determine the amount of the related indemnification payment.
Each of GM and Xxxxxx shall bear 50% of the aggregate expenses of the
arbitrators. The arbitration shall be governed by the United States Arbitration
Act, 9 U.S.C. (S)(S)1-14. The place of arbitration shall be New York, New York.
The final decision of the arbitrators shall be rendered no later than one year
from the date of the written notice of arbitration.
4.7 EXCLUSIVE REMEDIES. Except for the right to pursue equitable
remedies, the remedies provided in this Section 4 shall be deemed the sole and
exclusive remedies of the parties with respect to the subject matters of the
indemnification provisions of Section 4.4.
5. INDEMNIFICATION.
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5.1 INDEMNIFICATION BY XXXXXX. Subject to Section 5.3, from and
after the Effective Time, Xxxxxx shall indemnify, defend and hold harmless GM,
all GM Affiliates and each of their respective directors, officers and employees
(in their capacities as such), from and against:
(a) all Losses relating to, arising out of, or due to,
directly or indirectly, any breach by Xxxxxx or any Xxxxxx Affiliate of
any of the provisions of this Agreement;
(b) all Losses relating to, arising out of, or due to any
untrue statement or alleged untrue statement of a material fact
contained in, or incorporated by reference into, the Xxxxxx Disclosure
Portions or the omission or alleged omission to state (whether pursuant
to direct statement or incorporation by reference) in the Xxxxxx
Disclosure Portions a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(c) all Losses relating to or arising out of actions taken
(or omitted to be taken) by Raytheon or any Raytheon Affiliate in
violation of the Xxxxxx Merger Agreement.
5.2 INDEMNIFICATION BY GM. Subject to Section 5.3, from and after
the Effective Time, GM shall indemnify, defend, and hold harmless Xxxxxx, all
Xxxxxx Affiliates, and each of their respective directors, officers and
employees (in their capacities as such), from and against:
(a) all Losses relating to, arising out of, or due to,
directly or indirectly, any breach by GM or any GM Affiliate of any of
the provisions of this Agreement;
(b) all Losses relating to, arising out of, or due to any
untrue statement or alleged untrue statement of a material fact
contained in, or incorporated by reference into, the GM Disclosure
Portions or the omission or alleged omission to state (whether pursuant
to direct statement or incorporation by reference) in the GM Disclosure
Portions a material fact required to be stated therein or necessary to
make the statements therein not misleading; and
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(c) all Losses relating to or arising out of any breach of the
representation set forth in Section 2.4(a) of the Implementation Agreement.
5.3 OTHER LIABILITIES. (a) Except as provided in Section 5.4, this Section 5
shall not be applicable to any Tax-Related Losses, which shall be governed by
Section 4 of this Agreement.
(b) This Section 5 shall not be applicable to any Losses relating to, arising
out of, or due to any breach of the provisions of any other contract, agreement
or understanding between GM or any GM Affiliate and Xxxxxx or any Xxxxxx
Affiliate, which Losses shall be governed by the terms of such contract,
agreement or understanding.
5.4 TAX EFFECTS OF INDEMNIFICATION. (a) Any indemnification payment made
under this Agreement shall be characterized for tax purposes as if such
payment were made immediately prior to the Effective Time, and shall therefore
be treated, to the extent permitted by law, as either (i) a distribution from
Xxxxxx to GM or (ii) a capital contribution from GM to Xxxxxx.
(b) The amount of any Loss or Tax-Related Losses for which indemnification is
provided under this Agreement shall be (i) increased to take account of net Tax
cost, if any, incurred by the Indemnitee arising from the receipt or accrual of
an Indemnity Payment hereunder (grossed up for such increase) and (ii) reduced
to take account of net Tax benefit, if any, realized by the Indemnitee arising
from incurring or paying such Loss or Tax-Related Losses. In computing the
amount of any such Tax cost or Tax benefit, the Indemnitee shall be deemed to
recognize all other items of income, gain, loss, deduction or credit before
recognizing any item arising from the receipt or accrual of any Indemnity
Payment hereunder or incurring or paying any indemnified Loss or Tax-Related
Losses. Any Indemnity Payment hereunder shall initially be made without regard
to this Section 5.4 and shall be increased or reduced to reflect any such net
Tax cost (including gross-up) or net Tax benefit only after the Indemnitee has
actually realized such cost or benefit. For purposes of this Agreement, an
Indemnitee shall be deemed to have "actually realized" a net Tax cost or a net
Tax benefit to the extent that, and at such time as, the amount of Taxes payable
by such Indemnitee is increased above or reduced below, as the case may be, the
amount of Taxes that such Indemnitee would be required to pay but for the
receipt or accrual of the Indemnity Payment or the incurrence or payment of such
Loss or Tax-Related Losses, as the case may be. The amount of any increase or
reduction hereunder shall be adjusted to reflect any final determination (which
shall include the execution of Form 870-AD or successor form) with respect to
the Indemnitee's liability for Taxes, any payments between GM and Xxxxxx to
reflect such adjustment shall be made if necessary.
5.5 EFFECT OF INSURANCE UPON INDEMNIFICATION. The amount which an Indemnifying
Party is required to pay to any Indemnitee pursuant to this Section 5 shall be
reduced (including retroactively) by any Insurance Proceeds and other amounts
actually recovered by such Indemnitee in reduction of the related Loss, it being
understood and agreed that each of Xxxxxx and GM shall use commercially
reasonable efforts to collect any such proceeds or other amounts to which it
or any of its Affiliates is entitled, without regard to whether it is the
Indemnifying Party hereunder. No Indemnitee shall be required, however, to
collect any such proceeds or other amounts prior to being entitled to
indemnification from an Indemnifying Party hereunder. If an Indemnitee
receives an Indemnity Payment in respect of a Loss and subsequently receives
Insurance Proceeds or other
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amounts in respect of such Loss, then such Indemnitee shall pay to such
Indemnifying Party an amount equal to the difference between (a) the sum of the
amount of such Indemnity Payment and the amount of such Insurance Proceeds or
other amounts actually received and (b) the amount of such Loss, in each case
adjusted (at such time as apprxopriate adjustment can be determined) to reflect
any premium adjustment attributable to such claim.
5.6 PROCEDURE FOR INDEMNIFICATION INVOLVING THIRD-PARTY CLAIMS.
(a) Notice of Claim. If any Indemnitee receives notice of the assertion of
any Third-Party Claim with respect to which an Indemnifying Party is
obligated under this Agreement to provide indemnification (other than
pursuant to Section 4), such Indemnitee shall give such Indemnifying Party
notice thereof (together with a copy of such Third-Party Claim, process or
other legal pleading) promptly after becoming aware of such Third-Party
Claim; provided, however, that the failure of any Indemnitee to give notice
-------- -------
as provided in this Section shall not relieve any Indemnifying Party of its
obligations under this Section 5, except to the extent that such
Indemnifying Party is actually prejudiced by such failure to give notice.
Such notice shall describe such Third-Party Claim in reasonable detail.
(b) Obligation of Indemnifying Party. An Indemnifying Party, at such
Indemnifying Party's own expense and through counsel chosen by such
Indemnifying Party (which counsel shall be reasonably acceptable to the
Indemnitee), may elect to defend any Third-Party Claim. If an Indemnifying
Party elects to defend a Third-Party Claim, then, within ten Business Days
after receiving notice of such Third-Party Claim (or sooner, if the nature
of such Third-Party Claim so requires), such Indemnifying Party shall notify
the Indemnitee of its intent to do so, and such Indemnitee shall cooperate
in the defense of such Third-Party Claim. Such Indemnifying Party shall pay
such Indemnitee's reasonable out-of-pocket expenses incurred in connection
with such cooperation. Such Indemnifying Party shall keep the Indemnitee
reasonably informed as to the status of the defense of such Third-Party
Claim. After notice from an Indemnifying Party to an Indemnitee of its
election to assume the defense of a Third-Party Claim, such Indemnifying
Party shall not be liable to such Indemnitee under this Section 5 for any
legal or other expenses subsequently incurred by such Indemnitee in
connection with the defense thereof other than those expenses referred to in
the preceding sentence; provided, however, that such Indemnitee shall have
-------- -------
the right to employ one law firm as counsel, together with a separate local
law firm in each applicable jurisdiction ("Separate Counsel"), to represent
such Indemnitee in any action or group of related actions (which firm or
firms shall be reasonably acceptable to the Indemnifying Party) if, in such
Indemnitee's reasonable judgment at any time, either a conflict of interest
between such Indemnitee and such Indemnifying Party exists in respect of
such claim, or there may be defenses available to such Indemnitee which are
different from or in addition to those available to such Indemnifying Party
and the representation of both parties by the same counsel would be
inappropriate, and in that event (i) the reasonable fees and expenses of
such Separate Counsel shall be paid by such Indemnifying Party (it being
understood, however, that the Indemnifying Party shall not be liable for the
expenses of more than one Separate Counsel (excluding local counsel) with
respect to any Third-Party Claim (even if against multiple Indemnitees)) and
(ii) each of such Indemnifying Party and such Indemnitee shall
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have the right to conduct its own defense in respect of such claim. If an
Indemnifying Party elects not to defend against a Third-Party Claim, or
fails to notify an Indemnitee of its election as provided in this Section 5
within the period of ten Business Days described above, the Indemnitee may
defend, compromise, and settle such Third-Party Claim and shall be entitled
to indemnification hereunder (to the extent permitted hereunder); provided,
--------
however, that no such Indemnitee may compromise or settle any such
-------
Third-Party Claim without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, the Indemnifying Party shall not, without
the prior written consent of the Indemnitee, (i) settle or compromise any
Third-Party Claim or consent to the entry of any judgment which does not
include as an unconditional term thereof the delivery by the claimant or
plaintiff to the Indemnitee of a written release from all liability in
respect of such Third-Party Claim or (ii) settle or compromise any Third-
Party Claim in any manner that would be reasonably likely to have a material
adverse effect on the Indemnitee.
(c) Joint Defense of Certain Claims. Notwithstanding the provisions of
Section 5.6(b), GM and Xxxxxx shall jointly control the defense of, and
cooperate with each other with respect to defending, any Third-Party Claim
with respect to which each party is claiming that it is entitled to
indemnification under Section 5.1 or 5.2. If either GM or Xxxxxx fails to
defend jointly any such Third-Party Claim, the other party shall solely
defend such Third-Party Claim and the party failing to defend jointly shall
use all commercially reasonable efforts to cooperate with the other party in
its defense of such Third Party Claim; provided, however, that neither
-------- -------
party may compromise or settle any such Third-Party Claim without the prior
written consent of the other party, which consent shall not be unreasonably
withheld or delayed. All costs and expenses of either party in connection
with, and during the course of, the joint control of the defense of any
such Third-Party Claim shall be initially paid by the party that incurs
such costs and expenses. Such costs and expenses shall be reallocated and
reimbursed in accordance with the respective indemnification obligations of
the parties at the conclusion of the defense of such Third-Party Claim.
5.7 PROCEDURE FOR INDEMNIFICATION NOT INVOLVING THIRD-PARTY CLAIMS. If any
Indemnitee desires to assert against an Indemnifying Party any claim for
indemnification under this Section 5 other than a Third-Party Claim (a "Claim"),
the Indemnitee shall deliver to the Indemnifying Party notice of its demand
for satisfaction of such Claim (a "Request"), specifying in reasonable detail
the amount of such Claim and the basis for asserting such Claim. Within 30 days
after the Indemnifying Party has been given a Request, the Indemnifying Party
shall either (i) satisfy the Claim requested to be satisfied in such Request by
delivering to the Indemnitee payment by wire transfer or a certified or bank
cashier's check payable to the Indemnified Party in immediately available funds
in an amount equal to the amount of such Claim, or (ii) notify the Indemnitee
that the Indemnifying Party contests such Claim by delivering to the Indemnitee
a Dispute Notice, stating that the Indemnifying Party objects to such Claim and
specifying in reasonable detail the basis for contesting such Claim. Any dispute
described in clause (ii) of this Section 5.7 shall be subject to the provisions
of Section 6.1.
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5.8 EXCLUSIVE REMEDIES. Except for the right to pursue equitable remedies, the
remedies provided in this Section 5 shall be deemed the sole and exclusive
remedies of the parties with respect to the subject matters of the
indemnification provisions of this Section 5.
6. MISCELLANEOUS.
-------------
6.1 DISPUTE RESOLUTION. GM and Xxxxxx shall attempt in good faith to resolve
any dispute between the parties arising out of or relating to this Agreement
promptly through negotiations of the parties prior to seeking any other legal or
equitable remedy.
6.2 SURVIVAL. The representations and warranties contained in this Agreement
shall survive the effective time of the Xxxxxx Merger until the expiration of
all applicable statutes of limitations.
6.3 COMPLETE AGREEMENT. Except as otherwise set forth in this Agreement,
this Agreement and the exhibits and schedules hereto shall constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and shall supersede all prior and contemporaneous agreements and understandings,
whether written or oral, between the parties with respect to such subject
matter.
6.4 AUTHORITY. Each of the parties hereto represents to the other that (a) it
has the corporate power and authority to execute, deliver and perform this
Agreement, (b) the execution, delivery and performance of this Agreement by it
has been duly authorized by all necessary corporate action, (c) it has duly and
validly executed and delivered this Agreement, and (d) this Agreement is a
legal, valid and binding obligation, enforceable against it in accordance with
its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equity principles.
6.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (other than the laws regarding
conflicts of laws) as to all matters, including matters of validity,
construction, effect, performance and remedies.
6.6 CONSENT TO EXCLUSIVE JURISDICTION. Any action, suit or proceeding arising
out of any claim that the parties cannot settle through good faith negotiations
(except any claim to which Section 4.6 applies) shall be litigated exclusively
in the state courts of Delaware. Each of the parties hereto hereby irrevocably
and unconditionally (a) submits to the jurisdiction of the state courts of
Delaware for any such action, suit or proceeding, (b) agrees not to commence any
such action, suit or proceeding except in the state courts of Delaware, (c)
waives, and agrees not to plead or to make, any objection to the venue of any
such action, suit or proceeding in the state courts of Delaware, (d) waives, and
agrees not to plead or to make, any claim that any such action, suit or
proceeding brought in the state courts of Delaware has been brought in an
improper or otherwise inconvenient forum, (e) waives, and agrees not to plead or
to make, any claim that the state courts of Delaware lack personal jurisdiction
over it, and (f) waives its right to remove any such action, suit or proceeding
to the federal courts except when such courts are vested with sole and exclusive
jurisdiction by statute. GM and Xxxxxx shall cooperate with each other in
connection with any such
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action, suit or proceeding to obtain reliable assurances that confidential
treatment will be accorded any information that either party shall reasonably
deem to be confidential or proprietary. Each of the parties hereto irrevocably
designates and appoints its respective Service Agent as its agent to receive
service of process in any such action, suit or proceeding. Each of the parties
hereto further covenants and agrees that, until the expiration of all applicable
statutes of limitations relating to potential claims under this Agreement,
each such party shall maintain a duly appointed agent for the service of
summonses and other legal process in the State of Delaware, and shall promptly
notify the other party hereto of any change in the name or address of its
Service Agent and the name and address of any replacement for its Service Agent,
if such agent is no longer the Service Agent named herein. This Section 6.6 is
meant to comply with 6 Del. C (S) 2708.
------
6.7 NOTICES. All Notices shall be in writing and shall be deemed
given upon (a) a transmitter's confirmation of a receipt of a facsimile
transmission (but only if followed by confirmed delivery of a standard overnight
courier the following Business Day or if delivered by hand the following
Business Day), or (b) confirmed delivery of a standard overnight courier or
delivered by hand, to the parties at the following addresses:
if to GM to:
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Treasurer
Telecopy No.: (000) 000-0000
with a copy to:
General Motors Corporation
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute effective
notice) to:
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, P.C.
Telecopy No.: (000) 000-0000
and with a copy (which shall not constitute effective
notice) to:
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Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
If to Xxxxxx, to:
HE Holdings, Inc.
c/o Raytheon Company
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute effective notice) to:
Wachetell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
or to such other address as either party hereto may have furnished to the other
party by a Notice in writing in accordance with this Section 6.7. Any Notice
delivered pursuant to Section 4 shall also be sent to GM's Chief Tax Officer.
6.8 AMENDMENT AND MODIFICATION. This Agreement may not be amended or
modified in any respect except by a written agreement signed by both of the
parties hereto.
6.9 BINDING EFFECT; ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon the parties hereto and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Except
with respect to a merger of either party with another Person, neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party hereto without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed.
6.10 THIRD PARTY BENEFICIARIES. The Indemnitees and their respective
successors shall be third party beneficiaries of the indemnification provisions
of Sections 4 and 5, as applicable, and shall be entitled to enforce those
provisions, and in connection with such enforcement shall be subject to Section
6.6, in each such case as fully and to the same extent as if they were parties
to this Agreement. Except as provided in the previous sentence, nothing in this
Agreement, express or implied, is intended to or shall confer upon any Person
any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement, and no Person (other than as
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provided in the previous sentence) shall be deemed a third party beneficiary
under or by reason of this Agreement.
6.11 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.12 WAIVER. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but such waiver
shall be effective only if it is in writing signed by the party against
which such waiver is to be asserted. Unless otherwise expressly provided in
this Agreement, no delay or omission on the part of any party in exercising
any right or privilege under this Agreement shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right or
privilege under this Agreement operate as a waiver of any other right or
privilege under this Agreement nor shall any single or partial exercise of
any right or privilege preclude any other or further exercise thereof or the
exercise of any other right or privilege under this Agreement. No failure by
either party to take any action or assert any right or privilege hereunder
shall be deemed to be a waiver of such right or privilege in the event of
the continuation or repetition of the circumstances giving rise to such
right unless expressly waived in writing by the party against whom the
existence of such waiver is asserted.
6.13 SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
6.14 REMEDIES. Each of GM and Xxxxxx shall be entitled to enforce its
rights under this Agreement specifically, to recover damages and costs
(including reasonable attorneys' fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. Each of GM and Xxxxxx acknowledges and agrees that under certain
circumstances the breach by GM or any of its Affiliates or Xxxxxx or any of
its Affiliates of a term or provision of this Agreement will materially and
irreparably harm the other party, that money damages will accordingly not
be an adequate remedy for such breach and that the non-defaulting party, in
its sole discretion and in addition to its rights under this Agreement and
any other remedies it may have at law or in equity, may apply to any court
of law or equity of competent jurisdiction (without posting any bond or
deposit) for specific performance and/or other injunctive relief in order
to enforce or prevent any breach of the provisions of this Agreement.
6.15 PERFORMANCE. Each of the parties hereto shall use a11 commercially
reasonable efforts to cause to be performed all actions, agreements and
obligations set forth herein to be performed by any Affiliate of such party.
6.16 REFERENCES; CONSTRUCTION. The table of contents and the section and
other headings and subheadings contained in this Agreement and the Exhibits
hereto are solely for the purpose of
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reference, are not part of the agreement of the parties hereto, and shall not in
any way affect the meaning or interpretation of this Agreement. All references
to days or months shall be deemed references to calendar days or months. All
references to "$" shall be deemed references to United States dollars. Unless
the context otherwise requires, any reference to a "Section" or "Exhibit" shall
be deemed to refer to a section of this Agreement or an exhibit to this
Agreement. The words "hereof," "herein" and "hereunder" and words of similar
import referring to this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, unless otherwise
specifically provided, they shall be deemed to be followed by the words "without
limitation." This Agreement shall be construed without regard to any presumption
or rule requiring construction or interpretation against the party drafting or
causing the document to be drafted.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date and year first written above.
HE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Its: Vice President
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Its: Assistant Secretary
