EXHIBIT 99(d)(2)
EXECUTION COPY
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SUPPORT AGREEMENT
by and among
GENERAL ELECTRIC CAPITAL CORPORATION,
HAWK ACQUISITION CORP.
and
FUJI AMERICA HOLDINGS, INC.
Dated as of July 30, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I TENDER AND VOTING OF SHARES
SECTION 1.01. Tendering of Shares.................................................................................1
SECTION 1.02. Agreement to Vote...................................................................................1
SECTION 1.03. No Solicitation of Transactions.....................................................................2
SECTION 1.04. Action in Stockholder Capacity Only.................................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
SECTION 2.01. Due Organization; Authority Relative to this Agreement..............................................2
SECTION 2.02. No Conflict; Required Filings and Consents..........................................................3
SECTION 2.03. Title to Shares.....................................................................................4
SECTION 2.04. Valid Issuance......................................................................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
SECTION 3.01. Due Organization; Authority Relative to this Agreement..............................................4
SECTION 3.02. No Conflict; Required Filings and Consents..........................................................4
ARTICLE IV ADDITIONAL AGREEMENTS
SECTION 4.01. No Disposition or Encumbrance of Shares.............................................................5
SECTION 4.02. Disclosure..........................................................................................5
SECTION 4.03. Public Announcements................................................................................5
SECTION 4.04. Confidentiality.....................................................................................5
SECTION 4.05. Services Agreement; Business Relationship; Access to Information....................................6
SECTION 4.06. Certain Tax Matters.................................................................................7
ARTICLE V TERMINATION
SECTION 5.01. Termination.........................................................................................7
ARTICLE VI MISCELLANEOUS
SECTION 6.01. Additional Shares...................................................................................8
SECTION 6.02. Expenses............................................................................................8
SECTION 6.03. Notices.............................................................................................8
SECTION 6.04. Severability........................................................................................9
SECTION 6.05. Assignment..........................................................................................9
SECTION 6.06. Amendment; Waiver...................................................................................9
SECTION 6.07. Parties in Interest................................................................................10
SECTION 6.08. Specific Performance...............................................................................10
SECTION 6.09. Governing Law......................................................................................10
SECTION 6.10. Headings...........................................................................................10
SECTION 6.11. Counterparts.......................................................................................10
SECTION 6.12. Entire Agreement...................................................................................10
SECTION 6.13. Further Assurances.................................................................................10
SECTION 6.14. Waiver of a Jury Trial.............................................................................10
SUPPORT AGREEMENT, dated as of July 30, 2001 (this
"AGREEMENT"), among General Electric Capital Corporation, a Delaware corporation
("PARENT"), Hawk Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("PURCHASER"), and Fuji America Holdings, Inc., a Delaware
corporation (the "STOCKHOLDER").
WHEREAS, concurrently with the execution of this Agreement,
Parent, Purchaser and Xxxxxx Financial, Inc., a Delaware corporation (the
"COMPANY") are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "MERGER AGREEMENT"; capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to them in the Merger
Agreement) pursuant to which, upon the terms and subject to the conditions
thereof, the Purchaser will be merged with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, the Stockholder is the record
and beneficial owner of and has the power to vote or to direct the vote of
51,050,000 shares of Class B common stock, par value $0.25 per share ("CLASS B
COMMON STOCK"), of the Company (such shares of Class B Common Stock and any
securities into which such shares may be converted or exchanged and any
securities issued in replacement of, or as a dividend or distribution on or
otherwise in respect of, such shares, being referred to herein as the "SHARES");
WHEREAS, as a condition to entering into the Merger Agreement
and incurring the obligations set forth therein, including the Offer, Parent and
Purchaser have required that the Stockholder enter into this Agreement; and
WHEREAS, in order to induce Parent and Purchaser to enter into
the Merger Agreement the Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereby agree, severally and not jointly, as follows:
ARTICLE I
TENDER AND VOTING OF SHARES
SECTION 1.01. TENDERING OF SHARES. From the date hereof until
the termination of this Agreement in accordance with the terms hereof, the
Stockholder hereby agrees that it shall validly tender (and not withdraw) or
cause to be validly tendered (and not withdrawn) in the Offer, prior to
midnight, New York City time, on the tenth business day after and inclusive of
the commencement of the Offer, all of the Shares pursuant to and in accordance
with the terms of the Offer and shall not withdraw its tender of any Shares
prior to the earlier to occur of (i) the expiration or termination of the Offer
and (ii) the termination of this Agreement.
SECTION 1.02. AGREEMENT TO VOTE. From the date hereof until
the termination of this Agreement in accordance with the terms hereof, the
Stockholder hereby agrees (a) to vote the Shares at every annual, special or
adjourned meeting of the stockholders of the Company (or pursuant to any
consent, certificate or other document relating to the Company that the law of
the State of Delaware may permit or require): (i) in favor of the approval and
adoption of the
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Merger Agreement and approval of the Merger and all other transactions
contemplated by the Merger Agreement and this Agreement; (ii) against any
action, agreement, transaction (other than the Merger Agreement or the
transactions contemplated thereby) or proposal (including, without limitation,
any Acquisition Proposal) that would result in any of the conditions to the
Company's obligations under the Merger Agreement not being fulfilled; and (iii)
in favor of any other matter necessary to the consummation of the transactions
contemplated by the Merger Agreement and considered and voted upon by the
stockholders of the Company and (b) to use its best efforts to cause its current
designees to remain on the Board (and, in the event of the resignation, death or
removal of any such designee, to use its best efforts to replace such designee
with another designee of the Stockholder). The Stockholder acknowledges receipt
of a copy of the Merger Agreement and the review thereof.
SECTION 1.03. NO SOLICITATION OF TRANSACTIONS. Neither the
Stockholder nor any of its affiliates (other than the Company as expressly
provided in the Merger Agreement) shall, directly or indirectly, (a) solicit or
encourage the initiation of (including by way of furnishing information) any
inquiries or proposals regarding any Acquisition Proposal or (b) have any
discussions with or provide any confidential information or data to any third
party that would encourage, facilitate or further an Acquisition Proposal, or
engage in any negotiations concerning an Acquisition Proposal, or knowingly
facilitate any effort or attempt to make or implement an Acquisition Proposal.
The Stockholder and each of its affiliates shall immediately cease and cause to
be terminated any existing discussions or negotiations with any persons (other
than Parent) conducted heretofore with respect to any of the foregoing. The
Stockholder shall promptly advise Parent orally and in writing of (a) any
Acquisition Proposal or any request for information with respect to any
Acquisition Proposal received by the Stockholder or any of its affiliates, the
material terms and conditions of such Acquisition Proposal or request and the
identity of the person making such Acquisition Proposal or request and (b) any
changes in any such Acquisition Proposal or request (and provide Parent with
copies of any written Acquisition Proposals or amendments or supplements
thereto).
SECTION 1.04. ACTION IN STOCKHOLDER CAPACITY ONLY. The parties
hereto acknowledge that this Agreement is entered into by the Stockholder in its
capacity as a stockholder of the Company and that nothing in this Agreement
shall in any way restrict or limit any director, officer or employee of the
Stockholder or its affiliates from taking any action in his capacity as a
director or officer of the Company in order to comply with his fiduciary
obligations as a director or officer of the Company, including, without
limitation, participating in his capacity as a director of the Company in any
negotiations or discussions pursuant to Section 5.02(a) of the Merger Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDER
The Stockholder hereby represents and warrants to Parent as
follows:
SECTION 2.01. DUE ORGANIZATION; AUTHORITY RELATIVE TO THIS
AGREEMENT. The Stockholder is a corporation duly organized, validly existing and
in good standing under the laws
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of the State of Delaware. The Stockholder has all necessary power and authority
to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation by the Stockholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of the
Stockholder or any affiliate of the Stockholder are necessary to authorize this
Agreement or to consummate such transactions. This Agreement has been duly and
validly executed and delivered by the Stockholder and, assuming its due
authorization, execution and delivery by Parent and Purchaser, constitutes a
legal, valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws,
now or hereafter in effect, affecting creditors' rights generally and subject to
the effect of general principles of equity (regardless of whether considered in
a proceeding at law or in equity). The Board of Directors of The Fuji Bank,
Limited in its capacity as sole stockholder of the Stockholder, has authorized
and approved the execution and delivery of this Agreement by the Stockholder and
the performance by the Stockholder of its obligations hereunder.
SECTION 2.02. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a)
The execution and delivery of this Agreement by the Stockholder do not, and the
performance of this Agreement by the Stockholder will not, (i) conflict with or
violate the Certificate of Incorporation or By-laws of the Stockholder, (ii)
assuming all consents, approvals, authorizations and permits described in
subsection (b) have been obtained and all filings and obligations described in
subsection (b) have been made, conflict with or violate any law applicable to
the Stockholder or by which any property or asset of the Stockholder is bound or
affected or (iii) if applicable, result in any breach of or constitute a default
(or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of the Stockholder pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Stockholder is a party
or by which the Stockholder or any property or asset of the Stockholder is bound
or affected, except, with respect to clauses (ii) and (iii), for any such
conflicts, violations, breaches, defaults or other occurrences which would
neither, individually or in the aggregate, prevent nor materially delay the
performance by the Stockholder of any of its obligations pursuant to this
Agreement.
(b) The execution and delivery of this Agreement by the
Stockholder do not, and the performance of this Agreement by the Stockholder
will not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Securities Act, the Exchange Act, state securities
laws, the HSR Act, the Non-U.S. Monopoly Laws and Environmental Health and
Safety Laws, (ii) the Regulatory Approvals, and (iii) where failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not, individually or in the aggregate, prevent or
materially delay the performance by the Stockholder of any of its obligations
pursuant to this Agreement.
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SECTION 2.03. TITLE TO SHARES. The Stockholder is the record
and beneficial owner of, and has good and marketable title to, the Shares free
and clear of any lien, pledge, security interest, encumbrance, charge or other
claim of third parties of any kind or nature, proxy, voting restriction,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind, other than pursuant to this Agreement and the Merger Agreement.
SECTION 2.04. VALID ISSUANCE. To the Stockholder's knowledge,
the Shares have been validly issued and are fully paid and nonassessable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER
Parent and Purchaser each represents and warrants to the
Stockholder as follows:
SECTION 3.01. DUE ORGANIZATION; AUTHORITY RELATIVE TO THIS
AGREEMENT. Parent and Purchaser are corporations duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of incorporation. Parent and Purchaser have all necessary power and authority to
execute and deliver this Agreement, to perform their obligations hereunder and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation by Parent and Purchaser of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of
Parent or Purchaser or any affiliate thereof are necessary to authorize this
Agreement or to consummate such transactions. This Agreement has been duly and
validly executed and delivered by Parent and Purchaser and, assuming its due
authorization, execution and delivery by the Stockholder, constitutes a legal,
valid and binding obligation of Parent and Purchaser, enforceable against Parent
and Purchaser in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws,
now or hereafter in effect, affecting creditors' rights generally and subject to
the effect of general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
SECTION 3.02. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a)
The execution and delivery of this Agreement by Parent and Purchaser do not, and
the performance of this Agreement by Parent and Purchaser will not, (i) conflict
with or violate the Certificate of Incorporation or By-laws of Parent or
Purchaser, (ii) assuming that all consents, approvals, authorizations and
permits described in subsection (b) have been obtained and all filings and
obligations described in subsection (b) have been made, conflict with or violate
any law applicable to Parent or Purchaser or by which any property or asset of
Parent or Purchaser is bound or affected or (iii) result in any breach of or
constitute a default (or an event which, with notice or lapse of time or both
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any property or asset of Parent or Purchaser pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Parent or Purchaser
is a party or by which Parent or Purchaser or any property or asset of either of
them is bound or affected, except, with respect to clauses (ii) and
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(iii), for any such conflicts, violations, breaches, defaults or other
occurrences which would neither, individually or in the aggregate, prevent or
materially delay the performance by Parent and Purchaser of any of their
obligations pursuant to this Agreement.
(b) The execution and delivery of this Agreement by Parent and
Purchaser do not, and the performance of this Agreement by Parent and Purchaser
will not, require any consent, approval, authorization or permit of, or filing
with, or notification to, any Governmental Authority, except (i) for applicable
requirements, if any, of the Securities Act, the Exchange Act, state securities
laws, the HSR Act, the Non-U.S. Monopoly Laws and Environmental Health and
Safety Laws, (ii) the Regulatory Approvals, and (iii) where failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not, individually or in the aggregate, prevent or
materially delay the performance by Parent and Purchaser of any of their
obligations pursuant to this Agreement.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.01. NO DISPOSITION OR ENCUMBRANCE OF SHARES. The
Stockholder agrees that, prior to the termination of this Agreement in
accordance with the terms hereof, it shall not, directly or indirectly, (a)
sell, assign, transfer (including by operation of law), pledge, encumber or
otherwise dispose of any of the Shares or otherwise agree to do any of the
foregoing, (b) deposit any of the Shares into a voting trust or enter into a
voting agreement or arrangement or grant any proxy or power of attorney with
respect thereto which is inconsistent with this Agreement, (c) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect sale, assignment, transfer (including by operation of law) or other
disposition of any Shares, or (d) take any action that would make any
representation or warranty of the Stockholder herein untrue or incorrect in any
material respect or have the effect of preventing or disabling the Stockholder
from performing its obligations hereunder.
SECTION 4.02. DISCLOSURE. The Stockholder agrees to permit
Parent and Purchaser to publish and disclose in the Offer Documents and the
Proxy Statement and related filings under the securities laws the Stockholder's
identity and ownership of Shares and the nature of its commitments, arrangements
and understandings under this Agreement and any other information required by
applicable law.
SECTION 4.03. PUBLIC ANNOUNCEMENTS. Parent and the Stockholder
shall consult with each other before issuing any press release or making any
written public statement with respect to the Offer, the Merger, the Merger
Agreement or this Agreement and shall not issue any such press release or make
any such public statement without the prior consent of the other party, which
shall not be unreasonably withheld; provided, however, that either party may,
without the prior consent of the other, issue such press release or make such
public statement as may upon the advice of counsel be required by law or the
applicable rules and regulations of the SEC or the NYSE if it has used all
reasonable efforts to consult with the other party.
SECTION 4.04. CONFIDENTIALITY. The Stockholder agrees that,
for a period of eighteen months from the Effective Time, neither it nor any of
its affiliates shall at any time
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disclose in any manner or for any reason, without the Parent's prior written
consent, any confidential or proprietary information concerning the business and
properties of the Company or any of its subsidiaries (other than information
that is or becomes ascertainable from public or published information or trade
sources, except as a result of disclosure by the Stockholder in violation of
this Section 4.05) (the "CONFIDENTIAL INFORMATION"), unless disclosure of
Confidential Information is required by Law.
SECTION 4.05. SERVICES AGREEMENT; BUSINESS RELATIONSHIP;
ACCESS TO INFORMATION. (a) From and after the Effective Time and until March 31,
2002, Parent agrees that it shall cause the Surviving Corporation to continue
providing services to the Stockholder, and the Stockholder shall continue to pay
fees for such services, in each case pursuant to the Management Services
Agreement dated as of January 2, 1998 between the Stockholder and the Company
(the "Services Agreement") and shall cause the Surviving Corporation not to
terminate the Services Agreement prior to March 31, 2002.
(b) Following the Effective Time, Parent intends to cause the
Surviving Corporation to maintain current business relationships of the Company
with Japanese corporate clients on commercially reasonable terms and intends to
seek and broaden such relationships.
(c) Parent and Purchaser acknowledge that, pursuant to and in
accordance with the Tax Sharing Agreement, The Fuji Bank, Limited and
Subsidiaries Tax Allocation Agreement (State of California Tax Liability) dated
as of January 1, 1990 (the "1990 AGREEMENT") and the Agreement for the
allocation of federal, state and foreign income tax liability and benefits among
Xxxxxx International Corporation and its subsidiaries dated as of July 1, 1996
(the "1996 AGREEMENT" and, together with the 1990 Agreement and the Tax Sharing
Agreement, the "COMPANY TAX SHARING AGREEMENTS"), the Stockholder has
responsibilities for certain Tax matters relating to the Company and its
subsidiaries for certain taxable periods, or portions of certain taxable
periods, ending on, before or including the closing of the Offer or the
Effective Time, as the case may be. Accordingly, from and after the Effective
Time, Parent agrees to provide (and agrees to cause the Surviving Corporation to
provide) the Stockholder, at the Stockholder's expense, with reasonable
cooperation and access to information in connection with the preparation and
filing of Tax Returns (including amended Tax Returns and claims for Tax
refunds), determining a liability for Taxes or a right to a refund of Taxes, and
participating in or conducting any audit or other proceeding in respect of
Taxes, in each case for such periods. Such cooperation and information will
include, but may not be limited to, providing the Stockholder with copies of
relevant Tax Returns (together with accompanying schedules), related Tax
workpapers and files, correspondence to and from Tax authorities and documents
relating to rulings or other determinations by Tax authorities or the courts.
Furthermore, from and after the Effective Time, Parent will retain (and will
cause the Surviving Corporation to retain) all Tax Returns (including
accompanying schedules), workpapers, records and other documents in its
possession relating to Tax matters of the Company and its subsidiaries for such
periods until 30 days after the expiration of the applicable statute of
limitation, and will not dispose of any such Tax Returns or other documents
until the Stockholder has been given the opportunity to take possession of such
Tax Returns or other documents, at the Stockholder's expense, if requested by
the Stockholder by written notice to Parent or the Surviving Corporation within
30 days after the expiration of such statute of limitations.
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SECTION 4.06. CERTAIN TAX MATTERS. (a) From and after the
purchase of the Shares pursuant to the Offer, the Stockholder agrees to hold
Parent and its Affiliates (including the Surviving Corporation and its
subsidiaries) harmless against assessments of Tax made upon the Surviving
Corporation (or its subsidiaries) for Tax liabilities attributable to the
Stockholder, the Stockholder's parent or members of the Stockholder's or the
Stockholder's parent's consolidated, combined, unitary or affiliated Tax Return
group, other than the HFI Group (as that term is defined in the Tax Sharing
Agreement), pursuant to any provision of state, local or foreign law (including,
without limitation, the States of California and Illinois) similar or analogous
to the provisions of Treasury Regulations Section 1.1502-6(a). From and after
the purchase of the Shares pursuant to the Offer, Parent agrees to (and will
cause the Surviving Corporation to) hold the Stockholder and its Affiliates
harmless against assessments of Tax made upon the Stockholder or members of the
Stockholder's consolidated, combined, unitary or affiliated Tax Return group,
other than HFI Group for Tax liabilities attributable to the HFI Group, pursuant
to any provision of state, local or foreign law (including, without limitation,
the States of California and Illinois) similar or analogous to the provisions of
Treasury Regulations Section 1.1502-6(a).
(b) Each of Parent and Stockholder agree that (i) it will
apply (and Parent will cause the Surviving Corporation to apply) the Tax Sharing
Agreement to consolidated, combined or unitary Tax Returns of the FAHI group (as
such term is used in the Tax Sharing Agreement) for taxable periods beginning on
or after January 1, 1998, (ii) it will treat (and Parent will cause the
Surviving Corporation to treat) Xxxxxx International Corporation, the
predecessor to FAHI, as part of the FAHI group for the taxable period beginning
on January 1, 1998 and (iii) it will not apply (and Parent will cause the
Surviving Corporation not to apply) the 1996 Agreement to Tax Returns covered by
the Tax Sharing Agreement.
(c) Parent and the Stockholder acknowledge and agree that the
Company Tax Sharing Agreements shall not apply with respect to taxable periods
beginning after the purchase of the Shares pursuant to the Offer or the
Effective Time, as the case may be, but that the rights and obligations set
forth in the Company Tax Sharing Agreements shall, in respect of the taxable
periods covered thereby, including, without limitation, the provisions of
paragraph six of the Tax Sharing Agreement, continue in full force and effect
following the purchase of the Shares pursuant to the Offer or the Effective
Time, as the case may be, until the expiration of the statute of limitations for
the relevant Taxes.
ARTICLE V
TERMINATION
SECTION 5.01. TERMINATION. This Agreement shall terminate upon
the earliest to occur of (a) the termination or the expiration of the Offer and
(b) the termination of the Merger Agreement. Nothing in this Section 5.01 shall
relieve any party of liability for any breach of this Agreement. Notwithstanding
the foregoing, the provisions of Sections 4.04, 4.05 and 4.06 and Article VI
shall continue in effect in accordance with their terms following the Effective
Time.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. ADDITIONAL SHARES. In the event the Stockholder
becomes the beneficial owner of any additional Shares or other securities of the
Company and any securities into which such shares or securities may be converted
or exchanged and any securities issued in replacement of, or as a dividend or
distribution on, or otherwise in respect of, such shares or securities, then the
terms of this Agreement, including the term "Shares" as defined herein, shall
apply to such additional securities. The Stockholder hereby agrees, while this
Agreement is in effect, to promptly notify Parent of the number of any new
Shares received by the Stockholder, if any, after the date hereof.
SECTION 6.02. EXPENSES. Except as otherwise provided herein,
all costs and expenses incurred in connection with the transactions contemplated
by this Agreement shall be paid by the party incurring such costs and expenses.
SECTION 6.03. NOTICES. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
an overnight or expedited courier service, by telecopy (provided that any notice
received by telecopy at the addressee's location on any business day after 5:00
p.m. (addressee's local time) shall be deemed to have been received at 9:00 a.m.
(addressee's local time) on the next business day), or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 6.03):
(a) If to Parent or Purchaser:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
(b) If to the Stockholder:
Fuji America Holdings, Inc.
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x/x Xxx Xxxx Xxxx, Xxxxxxx, Xxx Xxxx Branch
Xxx Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
SECTION 6.04. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, the application of such term or provision to other
persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction, and all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
SECTION 6.05. ASSIGNMENT. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether pursuant to a merger, by operation of law or otherwise),
without prior written consent of the other parties except that Parent and
Purchaser may assign all or any of their rights and obligations hereunder to
Parent's ultimate parent company or any direct subsidiary of Parent or Parent's
ultimate parent company, PROVIDED that no such assignment shall relieve the
assigning party of its obligations hereunder if such assignee does not perform
such obligations.
SECTION 6.06. AMENDMENT; WAIVER. This Agreement may not be
amended except by an instrument in writing signed by all the parties hereto. Any
party to this Agreement may (a) extend the time for the performance of any of
the obligations or other acts of any other party, (b) waive any inaccuracies in
the representations and warranties of any other party contained herein or in any
document delivered by any other party pursuant hereto or (c) waive compliance
with any of the agreements or conditions of any other party contained herein.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a
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waiver of any other term or condition, of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of any
of such rights.
SECTION 6.07. PARTIES IN INTEREST. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
SECTION 6.08. SPECIFIC PERFORMANCE. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof for which money damages
would not be an adequate remedy and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity. Each of the parties further agrees that in any proceeding seeking
specific performance such party will waive (a) the defense of adequacy of a
remedy at law and (b) any requirement for the securing or posting of any bond.
SECTION 6.09. GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed in that State.
SECTION 6.10. HEADINGS. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 6.11. COUNTERPARTS. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 6.12. ENTIRE AGREEMENT. This Agreement and the Merger
Agreement constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
SECTION 6.13. FURTHER ASSURANCES. From time to time, at the
request of Parent, in the case of the Stockholder, or at the request of the
Stockholder, in the case of Parent and Purchaser, and without further
consideration, each party shall execute and deliver or cause to be executed and
delivered such additional documents and instruments and take all such further
action as may be reasonably necessary or desirable to consummate the
transactions contemplated by this Agreement.
SECTION 6.14. WAIVER OF A JURY TRIAL. Each of the parties
hereto hereby waives to the fullest extent permitted by applicable law any right
it may have to a trial by jury with respect to any litigation directly or
indirectly arising out of, under or in connection with this Agreement or the
transactions contemplated hereby. Each of the parties hereto certifies and
acknowledges that (a) no representative, agent or attorney of such party has
been authorized by such party to represent or, to the knowledge of such party,
has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that
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foregoing waiver, (b) each such party understands and has considered the
implications of this waiver, (c) each such other party makes this waiver
voluntarily, and (d) each such party has been induced to enter into this
Agreement and the Transactions, as applicable, by, among other things, the
mutual waivers and certifications in this Section 6.14.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxx X.X. Xxxxx
-------------------------------
Name: Xxxx X.X. Xxxxx
Title: Vice President
HAWK ACQUISITION CORP.
By: /s/ Xxxx X.X. Xxxxx
-------------------------------
Name: Xxxx X.X. Xxxxx
Title: President
FUJI AMERICA HOLDINGS, INC.
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Chairman
The Fuji Bank, Limited, in its capacity as the sole
stockholder of the Stockholder, acknowledges the terms of this Agreement and
agrees to cause the Stockholder to perform all of its obligations hereunder.
THE FUJI BANK, LIMITED
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
