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EXHIBIT 2.1
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EXECUTION COPY
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MEMBERSHIP INTEREST
PURCHASE AGREEMENT
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BETWEEN
XXXXXX CORPORATION AND
VFC CAPITAL, INC.,
(A WHOLLY-OWNED SUBSIDIARY OF XXXXXX CORPORATION)
AND
GENERAL ELECTRIC COMPANY AND
GE INVESTMENT VENTURES, INC.
(A WHOLLY-OWNED SUBSIDIARY OF GENERAL ELECTRIC COMPANY)
DATED AS OF APRIL 30, 2001
RELATING TO INTERESTS IN
GE-XXXXXX RAILWAY ELECTRONICS, L.L.C.
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TABLE OF CONTENTS
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms...............................................................................1
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Xxxxxx Membership Interest.................................................4
SECTION 2.02. Purchase Price......................................................................................4
SECTION 2.03. Closing.............................................................................................4
SECTION 2.04. Closing Deliveries by the Seller....................................................................4
SECTION 2.05. Closing Deliveries by the Purchaser.................................................................5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
SECTION 3.01. Organization and Authority of the Seller; Ownership of VFC..........................................5
SECTION 3.02. Ownership of the Xxxxxx Membership Interest.........................................................5
SECTION 3.03. No Conflict.........................................................................................6
SECTION 3.04. Governmental Consents and Approvals.................................................................6
SECTION 3.05. Litigation..........................................................................................6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
SECTION 4.01. Organization and Authority of the Purchaser; Ownership of GEIV......................................6
SECTION 4.02. No Conflict ........................................................................................7
SECTION 4.03. Governmental Consents and Approvals.................................................................7
SECTION 4.04. Litigation .........................................................................................7
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Conduct Prior to Closing............................................................................8
SECTION 5.02. Regulatory Authorizations...........................................................................8
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SECTION 5.03. Notice of Developments..............................................................................8
SECTION 5.04. Use of Marks .......................................................................................8
SECTION 5.05. Release and Discharge...............................................................................8
SECTION 5.06. Further Action......................................................................................9
SECTION 5.07. Survival of LLC Agreement Provisions................................................................9
SECTION 5.08. License Agreement; Guaranty.........................................................................9
SECTION 5.09. Non-Solicitation...................................................................................10
ARTICLE VI
TAX MATTERS
SECTION 6.01. Conveyance Taxes...................................................................................11
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.01. Conditions to Obligations of the Seller............................................................11
SECTION 7.02. Conditions to Obligations of the Purchaser.........................................................12
ARTICLE VIII
TERMINATION AND WAIVER
SECTION 8.01. Termination .......................................................................................13
SECTION 8.02. Effect of Termination..............................................................................13
SECTION 8.03. Waiver ............................................................................................13
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Expenses ..........................................................................................14
SECTION 9.02. Notices ...........................................................................................14
SECTION 9.03. Public Announcements...............................................................................14
SECTION 9.04. Headings ..........................................................................................14
SECTION 9.05. Severability ......................................................................................14
SECTION 9.06. Entire Agreement...................................................................................14
SECTION 9.07. Assignment ........................................................................................15
SECTION 9.08. No Third Party Beneficiaries.......................................................................15
SECTION 9.09. Amendment .........................................................................................15
SECTION 9.10. Governing Law......................................................................................15
SECTION 9.11. Counterparts ......................................................................................15
SECTION 9.12. Specific Performance...............................................................................15
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MEMBERSHIP INTEREST PURCHASE AGREEMENT, dated as of April 30,
2001, between (i) XXXXXX CORPORATION, a Delaware corporation ("XXXXXX") and VFC
CAPITAL, INC., a Delaware corporation ("VFC"; and together with Xxxxxx, the
"SELLER") acting through its Government Communications Systems Division
("GCSD"); and (ii) GENERAL ELECTRIC COMPANY, a New York corporation ("GE") and
GE INVESTMENT VENTURES, INC., a Delaware corporation ("GEIV"; and together with
GE, the "PURCHASER") acting through its Transportation Systems Business
("GETS").
W I T N E S S E T H:
WHEREAS, the Seller and the Purchaser are parties to that
certain Limited Liability Company Agreement, dated July 7, 1995 (the "LLC
AGREEMENT"), pursuant to which the Seller and the Purchaser joined together to
form GE-Xxxxxx Railway Electronics, L.L.C. (the "LLC"), a limited liability
company organized under the laws of the State of Delaware, for the purposes and
upon the terms and conditions set forth in the LLC Agreement; and
WHEREAS, VFC owns a forty-nine percent (49%) Membership
Interest (as defined below) in the LLC (the "XXXXXX MEMBERSHIP INTEREST") and
the Purchaser owns a fifty-one percent (51%) Membership Interest in the LLC; and
WHEREAS, the Seller wishes to sell to the Purchaser, and the
Purchaser wishes to purchase from the Seller, the Xxxxxx Membership Interest,
upon the terms and subject to the conditions set forth herein; and
WHEREAS, the Seller and the LLC are parties to that certain
Xxxxxx Technology License Agreement, dated and effective as of July 7, 1995 (the
"LICENSE AGREEMENT"), pursuant to which the Seller makes certain patent rights
and technical know-how available to the LLC on the terms and conditions as
stated therein; and
WHEREAS, for the benefit of the Purchaser and the LLC, the
Seller wishes to modify, and the Purchaser wishes to be modified, the License
Agreement, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, the Purchaser and the
Seller hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS.
As used in this Agreement, the following terms shall have the
following meanings:
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"ACTION" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"AFFILIATE" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"AGREEMENT" or "THIS AGREEMENT" means this Membership Interest
Purchase Agreement, dated as of April 30, 2001, between the Seller and the
Purchaser and all amendments hereto made in accordance with the provisions of
Section 9.09.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by law to be closed in
The City of New York.
"CLOSING" has the meaning specified in Section 2.03.
"CLOSING DATE" has the meaning specified in Section 2.03.
"CODE" means the Internal Revenue Code of 1986, as amended
through the date hereof.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH"), with respect to the relationship between or among two or
more Persons, means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including, without limitation,
the ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
"ENCUMBRANCE" means any security interest, pledge, mortgage,
lien (including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement or restriction of any kind,
including, without limitation, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
"GE" has the meaning specified in the introductory paragraph
to this Agreement.
"GEIV" has the meaning specified in the introductory paragraph
to this Agreement.
"GOVERNMENTAL AUTHORITY" means any United States federal,
state or local or any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"GOVERNMENTAL ORDER" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"XXXXXX" has the meaning specified in the introductory
paragraph to this Agreement.
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"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder.
"LAW" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, other requirement or rule of law.
"LICENSE AGREEMENT" has the meaning specified in the recitals
to this Agreement.
"MATERIAL ADVERSE EFFECT" means any circumstance, change in,
or effect on the LLC or the Xxxxxx Membership Interest that, individually or in
the aggregate with any other circumstances, changes in, or effects on, the LLC
or the Xxxxxx Membership Interest: (a) is, or could be, materially adverse to
the business, operations, assets or liabilities, employee relationships,
customer or supplier relationships, prospects, results of operations or the
condition (financial or otherwise) of the LLC or (b) could adversely affect the
ability of the Purchaser to operate or conduct the business of the LLC in the
manner in which it is currently operated or conducted by the Members, except for
any circumstances, changes or effects resulting from changes in general
economic, regulatory or other factors that affect the business of the LLC.
"MEMBER" means each of VFC and the Purchaser.
"MEMBERSHIP INTEREST" means the interest of a Member
(expressed as a percentage) in the LLC, including the right of a Member to have
contributed to the LLC substantially all the assets of Xxxxxx Industries, Inc.;
it being acknowledged that such right has no impact on the capital or Capital
Accounts (as defined in the LLC Agreement) of the Members.
"PERSON" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended.
"PURCHASE PRICE" has the meaning specified in Section 2.02.
"PURCHASE PRICE BANK ACCOUNT" means a bank account in the
United States to be designated by VFC in a written notice to the Purchaser at
least two Business Days before the Closing.
"PURCHASER" has the meaning specified in the introductory
paragraph to this Agreement.
"SELLER" has the meaning specified in the introductory
paragraph to this Agreement.
"TAX" or "TAXES" means any and all taxes, fees, levies,
duties, tariffs, imposts, and other charges of any kind (together with any and
all interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any government or taxing authority, including,
without limitation: taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales, use,
capital stock, payroll,
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employment, social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature of excise, withholding, ad
valorem, stamp, transfer, value added, or gains taxes; license, registration and
documentation fees; and customs duties, tariffs, and similar charges.
"VFC" has the meaning specified in the introductory paragraph
to this Agreement.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01. PURCHASE AND SALE OF THE XXXXXX MEMBERSHIP
INTEREST.
Upon the terms and subject to the conditions of this
Agreement, at the Closing, VFC shall sell to the Purchaser, and the Purchaser
shall purchase from VFC, the Xxxxxx Membership Interest.
SECTION 2.02. PURCHASE PRICE.
The aggregate purchase price paid for the Xxxxxx Membership
Interest shall be $50,000,000 (the "PURCHASE PRICE").
SECTION 2.03. CLOSING.
Upon the terms and subject to the conditions of this
Agreement, the sale and purchase of the Xxxxxx Membership Interest contemplated
by this Agreement shall take place at a closing (the "CLOSING") to be held at
the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 A.M., New York time on the second Business Day following the expiration or
termination of all applicable waiting periods under the HSR Act or at such other
place or at such other time or on such other date as the Seller and the
Purchaser may mutually agree upon in writing (the day on which the Closing takes
place being the "CLOSING DATE").
SECTION 2.04. CLOSING DELIVERIES BY THE SELLER.
At the Closing, the Seller shall deliver or cause to be
delivered to the Purchaser:
(a) a deed of transfer or other document or instrument
reasonably satisfactory to the Purchaser evidencing the transfer of the Xxxxxx
Membership Interest;
(b) a receipt for the Purchase Price;
(c) the release and discharge required to be delivered
pursuant to Sections 5.05 and 7.02(c); and
(d) a certificate of the Seller (which complies with Section
1445 of the Code) of non-foreign status executed in accordance with the
provisions of the Foreign Investment in Real Property Tax Act.
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SECTION 2.05. CLOSING DELIVERIES BY THE PURCHASER.
At the Closing, the Purchaser shall deliver or cause to be
delivered to the Seller:
(a) the Purchase Price by wire transfer in immediately
available funds to the Purchase Price Bank Account; and
(b) the release and discharge required to be delivered
pursuant to Sections 5.05 and 7.01(c).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Purchaser to enter into this
Agreement, the Seller hereby represents and warrants to the Purchaser as
follows:
SECTION 3.01. ORGANIZATION AND AUTHORITY OF THE SELLER;
OWNERSHIP OF VFC.
Each Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all
necessary corporate power and authority to enter into this Agreement, to carry
out its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by each Seller, the
performance by each Seller of its respective obligations hereunder and the
consummation by each Seller of the transactions contemplated hereby have been
duly authorized by all requisite action on the part of each Seller. This
Agreement has been duly executed and delivered by each Seller, and (assuming due
authorization, execution and delivery by the Purchaser) this Agreement
constitutes a legal, valid and binding obligation of each Seller enforceable
against each Seller in accordance with its terms. VFC is a wholly-owned
subsidiary of Xxxxxx.
SECTION 3.02. OWNERSHIP OF THE XXXXXX MEMBERSHIP INTEREST.
VFC is the owner of record and beneficial owner of the Xxxxxx
Membership Interest, free and clear of all Encumbrances other than the LLC
Agreement. Other than the LLC Agreement and the letter dated July 15, 2000
between the parties hereto, there are no options, warrants, convertible
securities or other rights, agreements, arrangements or commitments of any
character relating to the Xxxxxx Membership Interest or obligating the Seller to
issue or sell the Xxxxxx Membership Interest, or any other interest in, the LLC.
Upon consummation of the transactions contemplated by this Agreement and
registration of the Xxxxxx Membership Interest in the name of the Purchaser in
the records of LLC, the Purchaser will own the Xxxxxx Membership Interest free
and clear of all Encumbrances created by or attributable to the Seller. Except
as contemplated in the LLC Agreement, there are no voting trusts, member
agreements, proxies or other agreements or understandings in effect with respect
to the voting or transfer of the Xxxxxx Membership Interest.
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SECTION 3.03. NO CONFLICT.
Assuming that all consents, approvals, authorizations and
other actions described in Section 3.04 have been obtained or made, except as
may result from any facts or circumstances relating solely to the Purchaser, the
execution, delivery and performance of this Agreement by the Seller do not and
will not (a) violate, conflict with or result in the breach of any provision of
the charter or by-laws (or similar organizational documents) of the Seller, (b)
conflict with or violate (or cause an event which could have a Material Adverse
Effect as a result of) any Law or Governmental Order applicable to the Seller or
any of its assets, properties or businesses, or (c) conflict with, result in any
breach of, constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation of any
Encumbrance on the Xxxxxx Membership Interest or on any of the assets or
properties of the Seller pursuant to, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which the Seller is a party or by which the Xxxxxx
Membership Interest or any of such assets or properties is bound or affected.
SECTION 3.04. GOVERNMENTAL CONSENTS AND APPROVALS.
The execution, delivery and performance of this Agreement by
the Seller do not and will not require any consent, approval, authorization or
other order of, action by, filing with or notification to any Governmental
Authority, except the notification requirements of the HSR Act.
SECTION 3.05. LITIGATION.
There are no Actions by or against the Seller or any of its
Affiliates relating to the LLC or the Xxxxxx Membership Interest pending before
any Governmental Authority (or, to the best knowledge of the Seller after due
inquiry, threatened to be brought by or before any Governmental Authority).
Neither the Xxxxxx Membership Interest nor the Seller is subject to any
Governmental Order (nor, to the best knowledge of the Seller after due inquiry,
are there any such Governmental Orders threatened to be imposed by any
Governmental Authority) which has or has had a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Seller to enter into this Agreement,
the Purchaser hereby represents and warrants to the Seller as follows:
SECTION 4.01. ORGANIZATION AND AUTHORITY OF THE PURCHASER;
OWNERSHIP OF GEIV.
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Each Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of formation
and has all necessary corporate power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by each Purchaser, the performance by each Purchaser of its respective
obligations hereunder and the consummation by each Purchaser of the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of each Purchaser. This Agreement has been duly executed and delivered by
each Purchaser, and (assuming due authorization, execution and delivery by the
Seller) this Agreement constitutes a legal, valid and binding obligation of each
Purchaser enforceable against each Purchaser in accordance with its terms. GEIV
is a wholly-owned subsidiary of GE.
SECTION 4.02. NO CONFLICT.
Assuming compliance with the notification requirements of the
HSR Act, except as may result from any facts or circumstances relating solely to
the Seller, the execution, delivery and performance of this Agreement by the
Purchaser do not and will not (a) violate, conflict with or result in the breach
of any provision of the charter or by-laws (or similar organizational documents)
of the Purchaser, (b) conflict with or violate any Law or Governmental Order
applicable to the Purchaser, or (c) conflict with, or result in any breach of,
constitute a default (or event which with the giving of notice or lapse or time,
or both, would become a default) under, require any consent under, or give to
others any rights of termination, amendment, acceleration, suspension,
revocation, or cancellation of, or result in the creation of any Encumbrance on
any of the assets or properties of the Purchaser pursuant to, any note, bond,
mortgage or indenture, contract, agreement, lease, sublease, license, permit,
franchise or other instrument or arrangement to which the Purchaser is a party
or by which any of such assets or properties are bound or affected which would
have a material adverse effect on the ability of the Purchaser to consummate the
transactions contemplated by this Agreement.
SECTION 4.03. GOVERNMENTAL CONSENTS AND APPROVALS.
The execution, delivery and performance of this Agreement by
the Purchaser do not and will not require any consent, approval, authorization
or other order of, action by, filing with, or notification to, any Governmental
Authority, except the notification requirements of the HSR Act.
SECTION 4.04. LITIGATION.
No claim, action, proceeding or investigation is pending or,
to the best knowledge of the Purchaser after due inquiry, threatened, which
seeks to delay or prevent the consummation of, or which would be reasonably
likely to materially adversely affect the Purchaser's ability to consummate, the
transactions contemplated by this Agreement.
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ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. CONDUCT PRIOR TO CLOSING.
Each of the Seller and the Purchaser hereby covenants and
agrees that, between the date hereof and the time of the Closing, it shall not
engage in any practice, take any action, fail to take any action or enter into
any transaction which could cause any of its representations or warranties to be
untrue or result in a breach of any covenant made by it in this Agreement.
SECTION 5.02. REGULATORY AUTHORIZATIONS.
Each party hereto agrees to make an appropriate filing, if
necessary, pursuant to the HSR Act with respect to the transactions contemplated
by this Agreement within five Business Days of the date hereof and to supply as
promptly as practicable to the appropriate Governmental Authorities any
additional information and documentary material that may be requested pursuant
to the HSR Act.
SECTION 5.03. NOTICE OF DEVELOPMENTS.
Prior to the Closing (i) each of the Seller and the Purchaser
shall promptly notify the other party in writing of all events, circumstances,
facts and occurrences arising subsequent to the date of this Agreement which
could reasonably be expected to result in any material breach of its
representations, warranties or covenants contained in this Agreement or which
could reasonably be expected to have the effect of making any of its
representations or warranties contained in this Agreement untrue or incorrect in
any material respect and (ii) the Seller shall promptly notify the Purchaser of
any material developments affecting the Xxxxxx Membership Interest.
SECTION 5.04. USE OF MARKS.
The Seller acknowledges that from and after the Closing, the
name "GE-Xxxxxx Railway Electronics, L.L.C." and all similar or related names,
marks and logos currently used in the LLC's business (all of such names, marks
and logos being the "LLC NAMES") shall be owned by the LLC, that neither the
Seller nor any of its Affiliates shall have any rights in the LLC Names, and
that neither the Seller nor any of its Affiliates will contest the ownership or
validity of any rights of the Purchaser or the LLC in or to the LLC Names.
Notwithstanding the foregoing, Purchaser agrees (i) to cease and to cause the
LLC to cease the use of the name "Xxxxxx" in the LLC and in related names, marks
and logos of the LLC within one year from the date hereof and (ii) to cause the
LLC to comply with the terms of the Xxxxxx Trademark and Trade Name Agreement,
effective as of July 7, 1995, in connection with the use of the "Xxxxxx" name or
logos, which Xxxxxx Trademark and Trade Name Agreement shall expire one year
from the date of Closing unless earlier terminated.
SECTION 5.05. RELEASE AND DISCHARGE.
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The parties hereto covenant and agree at the Closing to
execute and deliver to the other party a general release and discharge, in form
and substance reasonably satisfactory to such other party, releasing and
discharging such other party (and, in the case of the release and discharge
delivered to the Purchaser, releasing and discharging the LLC) from any and all
claims arising out of the LLC Agreement, the License Agreement, the LLC or the
transactions or occurrences related thereto prior to the Closing Date.
SECTION 5.06. FURTHER ACTION.
Each of the parties hereto shall use all reasonable efforts to
take, or cause to be taken, all appropriate action, do or cause to be done all
things necessary, proper or advisable under applicable Law, and execute and
deliver such documents and other papers, as may be required to carry out the
provisions of this Agreement and consummate and make effective the transactions
contemplated by this Agreement. With respect to any contracts, agreements or
other arrangements entered into by the Seller prior to the date hereof that are
for the benefit or convenience of the LLC (the "SELLER CONTRACTS"), the Seller
agrees that for a period of one (1) year following the date hereof (i) the LLC
may, at its option, but only to the extent permitted by the terms of the Seller
Contracts and at no additional cost to the Seller, continue to receive the goods
and/or services provided pursuant to the Seller Contracts in accordance with
their respective terms and (ii) the Seller shall not terminate the Seller
Contracts without the consent of the LLC.
SECTION 5.07. SURVIVAL OF LLC AGREEMENT PROVISIONS.
Notwithstanding the sale of the Xxxxxx Membership Interest by
the Seller to the Purchaser, and notwithstanding any termination of the LLC
Agreement on or after the Closing Date, the Seller and the Purchaser acknowledge
and agree, in accordance with Section 10.6 of the LLC Agreement, that (i)
Sections 6.4 (tax returns), 6.5 (tax matters partner), 9.1 (public
announcements) and 9.2 (confidentiality) of the LLC Agreement shall survive such
sale or any termination of the LLC Agreement on or after the Closing Date, and
(ii) it shall comply at all times with Sections 9.1 and 9.2 of the LLC Agreement
in accordance with the terms thereof. Further, for the avoidance of doubt, the
Seller acknowledges and agrees that the business of the LLC may be continued in
whole or substantial part by the Purchaser or one of its Affiliates following
the sale of the Xxxxxx Membership Interest by the Seller to the Purchaser or
following any termination of the LLC Agreement, and the Seller acknowledges and
agrees that, as with respect to it only, (i) Section 9.3 (protection of
business) of the LLC Agreement shall survive such sale or any termination of the
LLC Agreement on or after the Closing Date for a period of three (3) years, (ii)
that it shall comply, until the third anniversary of the Closing Date, at all
times during such period with Section 9.3 of the LLC Agreement in accordance
with the terms thereof, and (iii) that effective as of the Closing Date, neither
the Purchaser nor GETS shall have any further obligations under Section 9.3 of
the LLC Agreement.
SECTION 5.08. LICENSE AGREEMENT; GUARANTY.
(a) With respect to the License Agreement, the Seller and the
Purchaser (on behalf of the LLC) agree, effective as of the Closing Date, as
follows:
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(i) subject to the terms of this Section 5.08, the License
Agreement shall remain in full force and effect;
(ii) Article V of the License Agreement is hereby terminated
in its entirety, and neither the Seller, the Purchaser nor the LLC
shall have any further compensation obligations regarding existing or
future license rights under the License Agreement;
(iii) all license rights granted to the LLC under the License
Agreement as of the date hereof shall continue in full force and
effect;
(iv) all license rights granted to the Seller under the
License Agreement as of the date hereof shall continue in full force
and effect;
(v) all ongoing obligations of the LLC and the Seller under
the LLC Agreement or the License Agreement with respect to licensing of
intellectual property rights (including rights in patents, copyrights,
and technical information) for which license rights have not been
granted as of the date hereof, including intellectual property not in
existence as of the date hereof, are hereby terminated;
(vi) the Seller shall have no further obligation to the LLC
with respect to furnishing and exploiting "Company Background Technical
Information" and "Future Technical Information" under Paragraph III.A
of the License Agreement; and
(vii) all references in the License Agreement to "ESS" shall
be deemed to be references to GCSD.
(b) The Seller and the Purchaser each agree that, effective as
of the Closing Date, the Guaranty, dated as of March 8, 1999 and issued by the
Seller in favor of the Purchaser, is hereby terminated in all respects and is of
no further force and effect.
SECTION 5.09. NON-SOLICITATION.
(a) For a period of two (2) years after the Closing Date (the "RESTRICTED
PERIOD"), the Seller agrees that it will not in any way, directly or indirectly,
without the consent of the LLC or the Purchaser, for the purpose of conducting
or engaging in any business that manufactures, produces or supplies products or
services of the kind manufactured, produced or supplied by the Seller as of the
Closing Date (i) interfere with or attempt to interfere with any persons who
are, or were, during the thirty (30)-day period before the Closing Date,
employees, officers, representatives or agents of the LLC, or employees,
officers, representative or agents of GETS or Xxxxxx Industries, Inc. primarily
involved in the business of the LLC (collectively the "LLC SERVICE PROVIDERS")
(ii) solicit, interview, induce, hire or attempt to solicit, interview, induce
or hire any of the LLC Service Providers to leave the employ or other service of
the LLC, GETS, or Xxxxxx Industries, Inc. or (iii) induce, or attempt to induce,
any of the LLC Service Providers to violate the terms of their contracts, or any
employment arrangements, with the LLC, GETS, or Xxxxxx Industries, Inc.;
PROVIDED, HOWEVER, that the foregoing shall not prohibit a general solicitation
to the public made exclusively through regional, national or international media
and interviewing and hiring LLC Service Providers solicited thereby; PROVIDED
FURTHER, HOWEVER, that the Seller shall not be prohibited from interviewing or
hiring any employee, officer,
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representative or agent of the LLC who, at the time of interviewing or hiring,
has not been an employee, officer, representative or agent of the LLC for a
period of six months, so long as the Seller shall not have solicited or induced
such employee, officer, representative or agent to terminate such employment.
(b) During the Restricted Period, GETS agrees that it will not
in any way, directly or indirectly, for the purpose of conducting or engaging in
any business that manufactures, produces or supplies products or services of the
kind manufactured, produced or supplied by GETS as of the Closing Date (i)
interfere with or attempt to interfere with any persons who are, or were, during
the thirty (30)-day period before the Closing Date, employees, officers,
representatives or agents of the Seller (collectively, the "SELLER SERVICE
PROVIDERS") (ii) solicit, interview, induce, hire or attempt to solicit, induce
or hire any of the Seller Service Providers to leave the employ or other service
of the Seller or (iii) induce, or attempt to induce, any of the Seller Service
Providers to violate the terms of their contracts, or any employment
arrangements, with the Seller; provided, however, that the foregoing shall not
prohibit a general solicitation to the public made exclusively through regional,
national or international media and interviewing and hiring Seller Service
Providers solicited thereby.
(c) For a period of two (2) years following the Closing Date,
in the event that any LLC Service Provider is hired by Seller pursuant to a
written waiver of the terms of this Section 5.09, then to the extent permitted
by law (and to the extent permitted by the applicable plan), Seller shall accord
any such LLC Service Provider who was a former employee of Xxxxxx full credit
under applicable employee benefit and welfare plans for time of service with the
LLC.
ARTICLE VI
TAX MATTERS
SECTION 6.01. CONVEYANCE TAXES.
The Seller and the Purchaser each shall share equally any real
property transfer or gains, sales, use, transfer, value added, stock transfer,
and stamp taxes, any transfer, recording, registration, and other fees, and any
similar Taxes which become payable in connection with the transactions
contemplated by this Agreement, and shall file such applications and documents
as shall permit any such Tax to be assessed and paid on or prior to the Closing
Date in accordance with any available pre-sale filing procedure. Each party
shall execute and deliver all instruments and certificates necessary to enable
the other party to comply with the foregoing.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF THE SELLER.
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The obligations of the Seller to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, at or prior
to the Closing, of each of the following conditions:
(a) HSR ACT. Any waiting period (and any extension thereof)
under the HSR Act applicable to the purchase of the Xxxxxx Membership Interest
contemplated hereby shall have expired or shall have terminated;
(b) NO PROCEEDING OR LITIGATION. No Action shall have been
commenced by or before any Governmental Authority against either the Seller or
the Purchaser, seeking to restrain or materially and adversely alter the
transactions contemplated by this Agreement which, in the reasonable, good faith
determination of the Seller, is likely to render it impossible or unlawful to
consummate such transactions; PROVIDED, HOWEVER, that the provisions of this
Section 7.01(b) shall not apply if the Seller has directly or indirectly
solicited or encouraged any such Action; and
(c) RELEASE AND DISCHARGE. The Seller shall have received the
release and discharge from the Purchaser referred to in Section 5.05 in form and
substance reasonably satisfactory to the Seller.
SECTION 7.02. CONDITIONS TO OBLIGATIONS OF THE PURCHASER.
The obligations of the Purchaser to consummate the
transactions contemplated by this Agreement shall be subject to the fulfillment,
at or prior to the Closing, of each of the following conditions:
(a) HSR ACT. Any waiting period (and any extension thereof)
under the HSR Act applicable to the purchase of the Xxxxxx Membership Interest
contemplated hereby shall have expired or shall have terminated;
(b) NO PROCEEDING OR LITIGATION. No Action shall have been
commenced by or before any Governmental Authority against either the Seller or
the Purchaser, seeking to restrain or materially and adversely alter the
transactions contemplated by this Agreement which, in the reasonable, good faith
determination of the Purchaser, is likely to render it impossible or unlawful to
consummate such transactions; PROVIDED, HOWEVER, that the provisions of this
Section 7.02(b) shall not apply if the Purchaser has directly or indirectly
solicited or encouraged any such Action; and
(c) RELEASE AND DISCHARGE. The Purchaser shall have received
the release and discharge from the Seller referred to in Section 5.05 in form
and substance reasonably satisfactory to the Purchaser.
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ARTICLE VIII
TERMINATION AND WAIVER
SECTION 8.01. TERMINATION.
This Agreement may be terminated at any time prior to Closing:
(a) by either the Seller or the Purchaser if the Closing shall
not have occurred by October 1, 2001; PROVIDED, HOWEVER, that the right to
terminate this Agreement under this Section 8.01(a) shall not be available to
any party whose failure to fulfill any obligation under this Agreement shall
have been the cause of, or shall have resulted in, the failure of the Closing to
occur on or prior to such date; or
(b) by either the Purchaser or the Seller in the event that
any Governmental Authority shall have issued an order, decree or ruling or taken
any other action restraining, enjoining or otherwise prohibiting the transfer of
the Xxxxxx Membership Interest contemplated by this Agreement and such order,
decree, ruling or other action shall have become final and nonappealable; or
(c) by the mutual written consent of the Seller and the
Purchaser.
SECTION 8.02. EFFECT OF TERMINATION.
In the event of termination of this Agreement as provided in
Section 8.01, this Agreement shall forthwith become void and there shall be no
liability on the part of either party hereto except (a) as set forth in Sections
9.01 and (b) that nothing herein shall relieve either party from liability for
any breach of this Agreement.
SECTION 8.03. WAIVER.
Either party to this Agreement may (a) extend the time for the
performance of any of the obligations or other acts of the other party, (b)
waive any inaccuracies in the representations and warranties of the other party
contained herein or in any document delivered by the other party pursuant hereto
or (c) waive compliance with any of the agreements or conditions of the 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
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.
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ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. EXPENSES.
Except as otherwise specified in this Agreement, all costs and
expenses, including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses, whether or not the Closing shall have occurred.
SECTION 9.02. NOTICES.
All notices, requests, claims, demands and other
communications hereunder shall be made in accordance with Section 12.4 of the
LLC Agreement.
SECTION 9.03. PUBLIC ANNOUNCEMENTS.
The parties to this Agreement shall consult with each other
before issuing any press release or making any public statement with respect to
this Agreement, the LLC or the LLC Agreement and, except as may be required by
Law or any national or international securities exchange, will not issue any
such press release or make any such public statement without the prior written
consent of the other party.
SECTION 9.04. HEADINGS.
The descriptive headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 9.05. SEVERABILITY.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any Law or public policy, 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 the transactions
contemplated hereby 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 an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.
SECTION 9.06. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and undertakings, both written and oral, between the Seller and the
Purchaser with respect to the subject matter hereof.
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SECTION 9.07. ASSIGNMENT.
This Agreement may not be assigned by operation of law or
otherwise without the express written consent of the Seller and the Purchaser
(which consent may be granted or withheld in the sole discretion of the Seller
or the Purchaser); PROVIDED, HOWEVER, that the Purchaser may assign this
Agreement to an Affiliate of the Purchaser without the consent of the Seller;
PROVIDED FURTHER, HOWEVER, that no such assignment shall release the Purchaser
from any of its obligations under this Agreement.
SECTION 9.08. NO THIRD PARTY BENEFICIARIES.
Except with respect to Article V, this Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, express or implied, is intended to or
shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement. It is the
intention of the parties that the LLC shall be a third party beneficiary of the
agreements set forth in Article V.
SECTION 9.09. AMENDMENT.
This Agreement may not be amended or modified except (a) by an
instrument in writing signed by, or on behalf of, the Seller and the Purchaser
or (b) by a waiver in accordance with Section 8.03.
SECTION 9.10. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of
New York, excluding (to the greatest extent permissible by law) any rule of law
that would cause the application of the laws of any jurisdiction other than the
State of New York. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined in any New York state or federal
court sitting in the City of New York.
SECTION 9.11. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 9.12. SPECIFIC PERFORMANCE.
The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement was not performed in accordance
with the terms hereof and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or
equity.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
XXXXXX CORPORATION
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
VFC CAPITAL, INC.
By: /s/ XXXXX X. XXXX
--------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Controller
GENERAL ELECTRIC COMPANY
By: /s/ XXXX XXXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: President and CEO of
General Electric
Transportation Systems
GE INVESTMENT VENTURES, INC.
By: /s/ XXXX XXXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Authorized Signatory
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