EXHIBIT 2.2
AMENDMENT NO. 1 TO
MASTER AGREEMENT OF PURCHASE AND SALE
AMENDMENT NO. 1 (the "Amendment"), dated as of October 1,
2002, by and between Xxxxxxxx Corporation, a New York corporation ("Buyer"),
and TRW Inc., an Ohio corporation ("TRW") to the Master Agreement of Purchase
and Sale (the "Agreement"), dated as of June 18, 2002, by and between Buyer and
TRW. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Agreement.
WHEREAS, the parties hereto desire to enter into this
Amendment so as to make certain modifications to the Agreement;
NOW, THEREFORE, for good and valuable consideration and in
consideration of the respective representations, warranties, covenants and
agreements set forth in the Agreement, the parties hereto, intending to be
legally bound, agree as follows:
ARTICLE I
AMENDMENTS
Section 1.1 Parties to the Agreement
(a) The first paragraph of the Agreement shall be
revised to add new parties to the agreement by deleting the word "and" before
"TRW INC." on the third line, and adding the following words at the end of such
first paragraph: "TRW Systemes Aeronautiques Civils, a subsidiary of TRW that
is organized under the laws of France and registered with the Commercial and
Companies Registry of Pontoise under the number 415 313 972 ("TRW SAC"), TRW
Systemes Aeronautiques, a subsidiary of TRW that is organized under the laws of
France and registered with the Commercial and Companies Registry of Versailles
under the number 552 019 093 ("TRW SA"), and Xxxxxxxx Control Systems S.A.S., a
subsidiary of Buyer that is organized under the laws of France and registered
with the Registry of Commerce and Companies of Xxxxx under the number 443 177
233 RCS Xxxxx ("Xxxxxxxx Control Systems").
(b) Section 6.11 of the Agreement shall hereby be
amended to add the following subsection (c) to such section:
(c) In furtherance of Section 6.11(b), (i) TRW
SAC and Xxxxxxxx Control Systems shall enter into a Local
Transfer Agreement to effect the sale of the Acquired Assets
owned by TRW SAC to Xxxxxxxx Control Systems, and (ii) TRW SA
and Xxxxxxxx
Control Systems shall enter into a Local Transfer Agreement
to effect the sale of the Acquired Assets owned by TRW SA to
Xxxxxxxx Control Systems.
(c) Section 10.1 of the Agreement shall be amended to
add the following language to the end of the first paragraph (immediately
following the notice information for TRW):
and
(c) if to Xxxxxxxx Control Systems:
Xxxxxxxx Control Systems S.A.S.
000 xxx Xxxxxx
00000 Xxx, Xxxxxx
Attention: President
Telecopy: 00 33 1 39 20 52 90
With a copy to:
Xxxxxxxx Corporation
Four Coliseum Centre
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx, X.X. 00000 XXX
Attention: Corporate Secretary
Telecopy: 000-000-0000
and
(d) if to TRW SAC:
TRW Systemes Aeronautiques Civils
00 xxx xxx Xxxxxx
00000 Xxxxxxxx Xxxxxx
Attention: President
Telecopy: 00 33 1 58 58 45 00
With a copy to:
TRW Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 XXX
Attention: Secretary
Telecopy: 000-000-0000
2
and
(e) if to TRW SA:
TRW Systemes Aeronautiques
00 xxx xxx Xxxxxx
00000 Xxxxxxxx, Xxxxxx
Attention: President
Telecopy:
With a copy to:
TRW Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 XXX
Attention: Secretary
Telecopy: 000-000-0000
Section 1.2 Ancillary Agreements.
(a) Section 1.1 of the Agreement shall be amended to add
the following definition to such section, following the definition of "Domain
Names":
"Employee Leasing Agreement" shall mean the agreement to be
entered into on the Closing Date, between TRW and Buyer,
pursuant to which TRW or its Subsidiaries shall continue to
employ certain employees of the Business past the Closing
Date and lease such employees to Xxxxxxxx for the term of
such agreement."
(b) Section 1.1 of the Agreement shall be amended to add
the following definitions to such section, following the definition of "Final
Determination":
"Foreign Exchange Termination Agreements" shall mean
collectively the letter agreement dated September 26, 2002
and the letter agreement dated September 27, 2002, each
between TRW and Buyer and relating to the treatment of, and
cost reimbursement for, the termination of certain foreign
exchange transactions."
(c) The definition of "Ancillary Agreements" appearing
in the third sentence of Section 6.11(a) of the Agreement shall be amended to
add the words "the Employee Leasing Agreement, the Foreign Exchange Termination
3
Agreements, the Cincom Letter Agreement," following the words "the Local
Transfer Agreements".
Section 1.3 Transfer of Bank Accounts
(a) Section 2.3(a) shall be amended by (1) removing the
word "and" at the end of subsection (xiii), (2) replacing the period at the end
of clause (xiv) with a semicolon followed by the word "and", and (3) adding the
following subsection (xv) to such section:
"(xv) the bank accounts listed on Schedule 2.3(a)(xv)."
(b) A new Schedule 2.3(a)(xv) shall be added to the
Agreement, as attached hereto as Exhibit A.
(c) Subsection (i) of Section 2.3(b) of the Agreement
shall be amended by adding the words "except for cash in the bank accounts
listed on Schedule 2.3(a)(xv)," to the beginning of such subsection.
Section 1.4 Compania Espanola de Sistemas Aeronauticos
SA (Spain). Section 6.5 of the Agreement shall hereby be amended to add the
following clause (c) to such section:
(c) Buyer and TRW hereby agree that if (i) the
consent of Construcciones Aeronatuicas, S.A. ("CASA") to the
transfer of TRW's interests in the Spanish Affiliate is not
obtained on or prior to October 1, 2002 (or such other date
as the parties shall select as the Closing Date), (ii) all
the conditions to closing in Article VII are satisfied or
waived at or prior to such time, and (iii) CASA has not
exercised its pre-emptive rights to purchase TRW's interests
in the Spanish Affiliate, pursuant to the terms and
conditions of the organizational documents governing the
Spanish Affiliate (such rights, the "Pre-Emptive Rights"),
then (x) the Closing shall take place on October 1, 2002 (or
such other date as the parties shall select as the Closing
Date), with a reduction of $3,000,000 (three million dollars)
to the Purchase Price (which shall be treated as a decrease
to the purchase price for all purposes of this Agreement),
and (y) the provisions of Section 6.5(b) will apply to the
treatment of TRW's interest in the Spanish Affiliate until
the earlier of such time as CASA provides its consent to the
transfer of TRW's interests in the Spanish Affiliate to Buyer
or CASA exercises its Pre-Emptive Rights. Following the
Closing Date, if CASA provides its consent to the transfer of
TRW's interests in the Spanish Affiliate to Buyer, TRW
4
shall transfer ownership of TRW's interests in the Spanish
Affiliate to Buyer immediately following receipt of such
consent, and Buyer shall pay to TRW an amount equal to
$3,000,000 (three million dollars) in immediately available
funds (which shall be treated as a increase to the purchase
price for all purposes of this Agreement), at which time the
provisions of Section 6.5(b) as they relate to the treatment
of TRW's interests in the Spanish Affiliate shall immediately
cease. Following the Closing Date, if CASA exercises its
Pre-Emptive Rights, then (i) upon transfer of TRW's interests
in the Spanish Affiliate to CASA pursuant to such exercise,
the provisions of Section 6.5(b) as they relate to the
treatment of TRW's interests in the Spanish Affiliate shall
immediately cease and (ii) Buyer and Seller shall use their
reasonable best efforts to cooperate and shall negotiate in
good faith to determine the value of TRW's interests in the
Spanish Affiliate (the "Spanish Affiliate Price"). Buyer and
TRW hereby expressly agree and acknowledge that the Spanish
Affiliate Price may be different from the amount paid by CASA
to TRW for the purchase of TRW's interests in the Spanish
Affiliate pursuant to the exercise of CASA's Pre-Emptive
Rights. If after ten (10) Business Days following the closing
of the transfer of TRW's interests in the Spanish Affiliate
to CASA, Buyer and TRW have not agreed on the Spanish
Affiliate Price, Buyer and TRW shall appoint a third-party
appraisal firm of international repute, reasonably mutually
acceptable to Buyer and TRW (the "Spanish Appraiser"), to
determine the Spanish Affiliate Price. The Spanish Appraiser
shall determine the Spanish Affiliate Price according to
commonly accepted valuation techniques and shall deliver its
report to Buyer and to TRW within twenty 20 Business Days of
its appointment. The Spanish Affiliate Price determined by
the Spanish Appraiser shall be final, non-appealable and
binding on both Buyer and TRW and may be enforced in any
court having competent jurisdiction. The fees and expenses of
the Spanish Appraiser shall be borne one-half by Buyer and
one-half by TRW. If the Spanish Affiliate Price is greater
than $3,000,000 (three million dollars), then TRW shall
deliver to Xxxxxxxx an amount in immediately available funds
equal to such excess (which shall be treated as a decrease to
the Purchase Price for all purposes of this Agreement). If
the Spanish Affiliate Price is less than $3,000,000 (three
million dollars), then Xxxxxxxx shall deliver to TRW an
amount in immediately available funds equal to such shortfall
(which shall be treated as an increase to the Purchase Price
for all purposes of this Agreement). The payment referred to
in the two preceding sentences shall be made no later than
two (2) Business Days after the later of (i) the date on
which TRW transfers its interests in the Spanish Affiliate
5
to CASA, (ii) the date on which Buyer and TRW mutually agree
the Spanish Affiliate Price or (iii) the date on which the
Spanish Appraiser delivers its report to Buyer and TRW. Buyer
shall control the process of agreeing with CASA on the
appropriate price to be paid pursuant to the exercise of
CASA's Pre-Emptive Rights, and TRW shall reasonably cooperate
with Buyer in its control of such process.
Section 1.5 TRW Thales Aerolec SAS (France). Section
6.5 of the Agreement shall hereby be amended to add the following clause (d) to
such section:
(d) Buyer and TRW hereby agree that if (i) the
approval of the French Ministry of Finance to transfer TRW's
interests in TRW Thales Aerolec SAS (the "French JV") is not
obtained on or prior to October 1, 2002 (or such other date
as the parties shall select as the Closing Date), and (ii)
all the conditions to closing in Article VII are satisfied or
waived at or prior to such time, then (x) the Closing shall
take place on October 1, 2002 (or such other date as the
parties shall select as the Closing Date), with a reduction
of $30,000 (thirty thousand dollars) to the Purchase Price
(which shall be treated as a decrease to the Purchase Price
for all purposes of this Agreement), and (y) the provisions
of Section 6.5(b) will apply to the treatment of TRW's
interest in the French JV until the approval of the French
Ministry of Finance to transfer TRW's interests in the French
JV are obtained. As soon as reasonably practical following
receipt of the approval of the French Ministry of Finance to
transfer TRW's interests in the French JV, TRW shall transfer
such interests in the French JV to Buyer, and Buyer shall pay
to TRW an amount equal to $30,000 (thirty thousand dollars)
in immediately available funds, which shall be treated as an
increase in the Purchase Price for all purposes of this
Agreement, and upon such payment, the provisions of Section
6.5(b) as they relate to the treatment of TRW's interest in
the French JV shall immediately cease.
Section 1.6 Certain Consent Issues. Section 6.5 of the
Agreement shall hereby be amended to add the following clause (e) to such
section:
(e) TRW and Buyer shall comply with the
procedures set forth in Exhibit D hereto in connection with
seeking the consent of Cincom Systems, Inc. to the transfer
of the Software License Agreement, dated July 31, 1997,
between Cincom Systems, Inc. and TRW Limited, to Buyer.
6
Section 1.7 Certain Employee Matters
(a) Section 6.8(a) of the Agreement shall be amended by
adding the following sentence to the end of such subsection: "The obligations
of the parties pursuant to this Section 6.8 shall be subject to the terms and
conditions of the Employee Leasing Agreement."
(b) Schedule 6.8(b) to the Agreement shall be amended by
adding the name "Xxxxx Xxxxxxxxxx" to such schedule.
(c) Section 6.8(n) of the Agreement shall be deleted in
its entirety.
(d) Section 6.8(o) of the Agreement shall be amended by
deleting subsection (ii) in its entirety and inserting the following subsection
(ii) in its place:
"(ii) At the Closing, or as soon as reasonably practicable
thereafter, TRW shall (A) pay the five Australian Transferred
Employees engaged in managerial or supervisory duties
identified on Schedule 6.8(o) attached hereto as Exhibit B
their accrued entitlement to annual leave and long service
leave, and (B) provide Buyer with documentation concerning
all entitlements to which each Australian Transferred
Employee is entitled as at the Closing Date, including
accrued sick leave, annual leave and long service leave.
Buyer shall be responsible for honoring all entitlements to
which each Australian Transferred Employee (except for the
five Australian Transferred Employees identified on Schedule
6.8(o)) is entitled pursuant to services performed by such
employee prior to the Closing Date, including accrued sick
leave, annual leave and long service leave. Buyer and TRW
agree that in exchange for Buyer assuming liability for the
accrued sick leave, annual leave and long service leave of
Transferred Australian Employees an amount equal to the value
of the accrued sick leave, annual leave and long service
leave of the Australian Transferred Employees as at Closing
will appear as a liability of TRW in the Closing Balance
Sheet."
Section 1.8 Novation Agreements
Section 6.9 of the Agreement shall be amended by adding
the following sentence to the end of such section:
"Nothing in any of the novation agreements, entered
into by and among Buyer (or one of its Affiliates), TRW (or
one of its
7
Affiliates) and various third parties, which novation
agreements effect the replacement of TRW (or one of its
Affiliates) by Buyer (or one of its Affiliates) as a party to
the agreements of the Business, shall be construed to amend
or otherwise affect any provision of this Agreement,
including without limitation the allocation of liabilities in
Section 2.4 of this Agreement."
Section 1.9 Local Transfer Agreements.
(a) Section 6.11(b) of the Agreement shall be amended by
replacing the period after the phrase "Asset Selling Subsidiaries" in the sixth
line with the word "and".
(b) Section 6.11(b) of the Agreement shall be further
amended by adding the following sentence to the end of such section:
"To the extent there are any inconsistencies between terms
and conditions of the Agreement and the terms and conditions
of a Local Transfer Agreement, the terms and conditions of
the Agreement shall prevail."
Section 1.10 Asset Selling Subsidiaries.
Schedule 2.3(a) shall be amended to add at the end of such
Schedule a new item 16, which shall read "X.X. Xxxxxx Ltd. - certain real
property rights".
Section 1.11 Tax Allocation
(a) Subsection (i) of Section 2.7(a) shall be amended by
inserting the following words at the end of the first sentence thereof:
"including, in respect of each UK Item other than the UK Item described in
Schedule 2.7 as UK Holdco Class A and Class B Shares, an appraisal of the A
Portion and B Portion of that UK Item (if any) and, in the case of the UK Item
described in Schedule 2.7 as UK Holdco Class A and Class B Shares, an appraisal
of each such class of shares."
(b) Section 2.7(a) shall be further amended by inserting
following new subsection (v):
"(v) In Section 2.7(a)(i) above, the following defined terms
bear the following meanings:
"A Portion" shall mean that portion of the UK Item
forming part of the A Portion Business (as that term
is defined in a deed of transfer between TRW Holding
Limited, Xxxxxxxx
8
Control Systems Limited and Xxxxxxxx Controls
Holding Limited to be executed on Closing pursuant
to paragraph 10 of Schedule 2.1(the "Schedule
2.1(10) Transfer Deed"); and
"B Portion" shall mean that portion of the UK Item
forming part of the B Portion Business (as that term
is defined in the Schedule 2.1(10) Transfer Deed).
(c) The definition of "UK Items" shall be amended by
replacing the word "and" in the final line with a comma, and adding the
following words to the end of such definition "(v) XX Xxxxxx Limited - Assets
and (vi) TRW Systems Limited - Assets."
(d) Schedule 2.7 containing the Purchase Price
Allocation shall be deleted in its entirety, and replaced with the document
attached as Exhibit C hereto.
Section 1.12 Amendments to Supplemental Accounting
Principles.
(a) The information for Account Number 001-000, Title -
Cash, in the Supplemental Accounting Principles, attached as Annex 1 to Section
4.7 of the TRW Disclosure Letter, shall be deleted in its entirety and replaced
with the following:
001-000 CASH Represents balances in bank accounts including checks that have been issued/received
but not cleared.
EXCLUDED FROM REFERENCE BALANCE SHEET.
EXCLUDED FROM THE CLOSING DATE BALANCE SHEET FOR U.S. UNITS.
EXCLUDED FROM THE CLOSING DATE BALANCE SHEET FOR NON-U.S. UNITS WHERE BANK ACCOUNTS ARE NOT
TRANSFERRED TO XXXXXXXX.
INCLUDED IN THE CLOSING DATE BALANCE SHEET FOR NON-U.S. UNITS WHERE BANK ACCOUNTS ARE
TRANSFERRED TO XXXXXXXX.
9
NOTE: CASH BALANCES THAT ARE DENOMINATED IN A NON-US DOLLAR
CURRENCY SHOULD BE REFLECTED ON THE CLOSING BALANCE SHEET IN A US DOLLAR AMOUNT
OBTAINED BY TRANSLATING THE FOREIGN CURRENCY BALANCE AT THE CLOSING DATE EXCHANGE RATE.
TRW AND BUYER TREASURY DEPARTMENTS WILL WORK TOGETHER IN GOOD FAITH TO DETERMINE
THE EXCHANGE RATE TO BE USED FOR THESE CASH BALANCES.
THIS TREATMENT ASSUMES THAT ALL BANK ACCOUNTS ARE PROPERLY RECONCILED AS OF THE
CLOSING DATE. FOR CLARIFICATION, THE ONLY BANK RECONCILIATION CATEGORIES SHOULD
BE BANK BALANCE, OUTSTANDING CHECKS, UNDEPOSITED RECEIPTS AND BOOK BALANCE.
UNLESS THERE ARE PROVEN BANK ERRORS, ALL "OTHER" RECONCILING ITEMS WILL BE CONSIDERED
BOOK CASH ERRORS AND BOOK CASH SHOULD BE ADJUSTED ON THE RECONCILIATIONS. CLOSING
DATE BANK RECONCILIATIONS WILL BE REVIEWED BY BUYER AND TRW PRIOR TO FINALIZATION
OF ANY BOOK CASH BALANCES INCLUDED IN THE CLOSING BALANCE SHEET. WHERE APPROPRIATE,
XXXXX CASH BALANCES ARE EXCLUDED FROM THIS RECONCILIATION COMMENT.
(b) The information for Account Number 035-000, Title -
Short-Term Debt, in the Supplemental Accounting Principles, attached as Annex 1
to Section 4.7 of the TRW Disclosure Letter, shall be deleted in its entirety
and replaced with the following:
035-000 SHORT-TERM Represents the unpaid balance of overdrafts, notes, drafts and other indebtedness that
DEBT have been issued or assumed by or for the Business and which are payable within one year
of the balance sheet date.
EXCLUDED FROM THE REFERENCE BALANCE SHEET FOR ALL ENTITIES. THE CLOSING BALANCE SHEET WILL
INCLUDE BANK DEBT ASSOCIATED WITH THE XIAMEN R&O JOINT VENTURE TO THE EXTENT THAT SUCH DEBT
EXCEEDS OR IS LESS THAN $4.4 MILLION. SHOWN AS A CREDIT BALANCE (LIABILITY) IF THE DEBT IS
GREATER THAN $4.4 MILLION; SHOWN AS A DEBIT BALANCE (ASSET) IF THE DEBT IS LESS THAN $4.4
MILLION.
10
Note: To the extent that Xxxxxxxx transfers any portion of Xiamen debt to another bank, or
adds to or reduces the outstanding balance of Xiamen debt at or about the time of closing,
that action will be considered a post closing event with no impact on the reference or
closing balance sheet.
(c) The information for Account Number 047-XXX, Title -
L/T and Short Term Debt, in the Supplemental Accounting Principles, attached as
Annex 1 to Section 4.7 of the TRW Disclosure Letter, shall be deleted in its
entirety and replaced with the following:
047-XXX L/T AND Represents debt and obligations due to banks.
SHORT
TERM DEBT
EXCLUDED FROM THE REFERENCE BALANCE SHEET FOR ALL ENTITIES. THE CLOSING BALANCE SHEET WILL
INCLUDE BANK DEBT ASSOCIATED WITH THE XIAMEN R&O JOINT VENTURE TO THE EXTENT THAT SUCH DEBT
EXCEEDS OR IS LESS THAN $4.4 MILLION. SHOWN AS A CREDIT BALANCE (LIABILITY) IF THE DEBT IS
GREATER THAN $4.4 MILLION; SHOWN AS A DEBIT BALANCE (ASSET) IF THE DEBT IS LESS THAN $4.4
MILLION.
NOTE: TO THE EXTENT THAT XXXXXXXX TRANSFERS ANY PORTION OF XIAMEN DEBT TO ANOTHER BANK, OR
ADDS TO OR REDUCES THE OUTSTANDING BALANCE OF XIAMEN DEBT AT OR ABOUT THE TIME OF CLOSING,
THAT ACTION WILL BE CONSIDERED A POST CLOSING EVENT WITH NO IMPACT ON THE REFERENCE OR
CLOSING BALANCE SHEET.
Section 1.13 TRW UK Pension Scheme
(a) Subsection 6.8(u)(i) of the Agreement shall hereby
be amended to add the following sentence at the end thereof:
For the purposes of calculating any Payment under this
Section 6.8(u), any on account transfer or excess payment
made under paragraph 11 of Schedule 6.8(e)(ii) to the
Agreement shall be ignored except that any on account
transfer (as adjusted in accordance with Schedule 6.8(e)(ii))
shall be deemed to form part of the Transfer Amount (or such
lesser amount as is actually transferred from the TRW Pension
Scheme to the Buyer UK Pension Scheme
11
in discharge of the TRW Scheme's liability to provide benefits
for the UK Transferred Employees) when the Transfer Amount (or
such lesser amount) is actually transferred.
(b) The "TRW Share Sale-Pension Schedule", attached as
Annex 1 to Schedule 6.8(e)(ii) to the Agreement, shall be amended to add the
following as paragraphs 10 and 11 to such TRW Share Sale-Pension Schedule:
"10 REDUNDANCIES
If on or before 31 December 2002 a Consenting Member is made
redundant by the Buyer's Group or in the case of a Consenting
Member who was a member of the "Senior Sections" in the TRW
Scheme, such a Consenting Member retires at the employer's
request and in either case is then aged 50 or over, TRW and
the Buyer will co-operate in good faith (Revenue requirements
permitting) to arrange for him to be offered the option of
transferring the value of the rights he has then accrued or
been credited under the Buyer's Scheme to the TRW Scheme, so
that the TRW Scheme will provide for him the benefits which
he would have received on redundancy or, in the case of a
Consenting Member of the "Senior Sections", on retirement at
the employer's request, had he remained in active membership
of the TRW Scheme after Closing until the date when he was
made redundant or, in the case of a Consenting Member of the
"Senior Sections", the date when such a Consenting Member
retired at the employer's request.
Any such transfer value will be calculated by the TRW Actuary
(and agreed by the Buyer's Actuary) in accordance with
paragraph 4 of this Schedule.
If Payment Date takes place after 31 December 2002, the
transfer value shall be an amount equal to the sum of (a) and
(b) (as defined below). There will be no physical transfer
payment from the Buyer's Scheme back to the TRW Scheme but
the transfer value will be made by netting off such amount
against the Transfer Amount which would otherwise be paid by
the TRW Scheme to the Buyer's Scheme under this Schedule (or
against such lesser amount as is transferred from the TRW
Scheme to the Buyer's Scheme in discharge of the TRW Scheme's
liability to provide benefits for the UK Transferred
Employees).
12
Where (a) is the part of the Transfer Amount in respect of
the member concerned that would have been transferred to the
Buyer's Scheme under this Schedule but for the provisions
contained in this paragraph (with the proviso that, if the
sum otherwise transferred on Payment Date from the TRW Scheme
to the Buyer's Scheme is lower than the Transfer Amount, a
reduction on that same basis is made to this item (a)); and
Where (b) is the value of the Consenting Member's benefits
that have accrued on or after Closing under the Buyer's
Scheme calculated on the date of termination of service on
the TRW PBO basis in accordance with the Actuary's Letter and
paragraph 4 (with references to Closing being to the date of
termination of service) and then increased or decreased over
the period starting on the day of termination of service and
ending on the end of the day which is 3 days before the
Payment Date by the Timing Adjustment and then increased by
interest at the Agreed Rate from (and including) the day
which is 2 days before the Payment Date to the end of the day
before the Payment Date. For the avoidance of doubt when
calculating the value of the member's benefits on the TRW PBO
basis, Factors A, B & C (as defined in the Actuary's Letter)
will not apply.
If Payment Date is on or before 31 December 2002, the
transfer value shall be an amount in cash equal to the sum of
(c) and (d) (as defined below).
Where (c) is the part of the unadjusted Transfer Amount (as
defined in the Actuary's Letter) in respect of the member
concerned as at Closing (with the proviso that, if the sum
transferred on Payment Date from the TRW Scheme to the
Buyer's Scheme is lower than the Transfer Amount, a reduction
on that same basis is made to this item (c)), and then
increased or decreased over the period starting on Closing
and ending on the end of the day which is 3 days before the
day of payment of this transfer value by the Timing
Adjustment and then increased by interest at the Agreed Rate
from (and including) the day which is 2 days before the day
of payment of this transfer value to the end of the day
before the day of payment of this transfer value; and
Where (d) is the value of the Consenting Member's benefits
that have accrued on or after Closing under the Buyer's
Scheme calculated on the date of termination of service on
the TRW PBO basis in accordance with the Actuary's Letter and
paragraph 4 (with references
13
to Closing being to the date of termination of service), and
then increased or decreased over the period starting on the
day of termination of service and ending on the end of the
day which is 3 days before the day of payment of this
transfer value by the Timing Adjustment and then increased by
interest at the Agreed Rate from (and including) the day
which is 2 days before the day of payment of this transfer
value to the end of the day before the day of payment of this
transfer value. For the avoidance of doubt when calculating
the value of the member's benefits on the TRW PBO basis,
Factors A, B & C (as defined in the Actuary's Letter) will
not apply.
If a member is reinstated in the TRW Scheme pursuant to this
paragraph 10 he will then cease to be treated as a Consenting
Member for all other purposes of this Schedule.
11 ON ACCOUNT TRANSFER
(A) TRW will procure that, within 6 weeks after the end
of the Transfer Consent Period or, if later the date when at
least 90 per cent of the Option Forms have been received by
TRW, TRW's Actuary will estimate the Transfer Amount and
notify that estimate to the Buyer's Actuary.
(B) TRW will use all reasonable endeavours to procure
that the TRW Scheme will transfer to the Buyer's Scheme on
such date as is agreed by TRW and the Buyer, as a payment on
account of the Transfer Amount, an amount equal to 50 per
cent. of the estimate so notified.
(C) After the payment on account is made, for the
purpose of this Schedule and the Actuary's Letter the TRW
Scheme shall be deemed to have transferred on the Payment
Date to the Buyer's Scheme in addition to the amount (if any)
actually transferred on the Payment Date an amount equal to
the payment made in accordance with this paragraph 11(B) and
then increased or decreased by the Timing Adjustment over the
period starting on the day the payment on account is made and
ending on the end of the day which is 3 days before the
Payment Date and then increased by interest at the Agreed
Rate from and including the day which is 2 days before the
Payment Date to the end of the day before the Payment Date.
If the amount which the TRW Scheme is so deemed to have
transferred on the Payment Date exceeds the Transfer Amount,
the Buyer will on the Payment Date pay to TRW, or procure the
payment by the Buyer's
14
Scheme to the TRW Scheme of, the excess. If the Buyer pays
the excess to TRW, TRW will forthwith pay an amount equal to
the excess received to the TRW Scheme. TRW will account to
the Buyer for any Tax Benefit received in the same manner and
circumstances as the Buyer is required to account to TRW for
any Tax Benefit under paragraph 7(B).
(D) In respect of any transfer between the TRW Scheme
and the Buyer's Scheme, TRW (in the case of a transfer by the
TRW Scheme) or the Buyer (in the case of a transfer by the
Buyer's Scheme) will procure that the transferring scheme
will before the transfer deliver to the receiving scheme a
letter of direction supporting the use of Transaction Stamp
Status Flag 5 in the form recommended by CREST.
(E) If a payment on account is made, Appendix B to the
Schedule will be modified to reflect the provisions of this
paragraph."
Section 1.14 Citroen Valve Business. Article VI of the
Agreement shall hereby be amended to add the following Section 6.23 to such
article:
Section 6.23. Citroen Valve Business. TRW and Buyer shall
treat the disposition of TRW Systemes Aeronautiques SAS' suspension
valve business as set forth in Exhibit E hereto.
Section 1.15 Reference Balance Sheet and SAP Amendments.
The adjustments set forth on Exhibit F hereto shall be taken into account in
preparing the Reference Balance Sheet and the Closing Balance Sheet. The
Supplemental Accounting Principles attached as Annex 1 to Section 4.7 of the
TRW Disclosure Letter shall be amended as set forth in Exhibit G hereto.
ARTICLE II
MISCELLANEOUS
Section 2.1 Nature of Amendment.
Except as expressly provided herein, the Agreement shall
continue to be, and shall remain, in full force and effect. Except as expressly
provided herein, this Amendment shall not be deemed to be a waiver of, or
consent to, or a
15
modification or amendment of, any other term or condition of the Agreement. Any
reference to the Agreement in the Agreement or any other document (except as
specifically indicated to the contrary) shall be deemed to be a reference to
the Agreement as amended hereby.
Section 2.2 Governing Law.
THIS AGREEMENT, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OR
CHOICE OF LAWS OR ANY OTHER LAW THAT WOULD MAKE THE LAWS OF ANY OTHER
JURISDICTION OTHER THAN THE STATE OF NEW YORK APPLICABLE HERETO.
Section 2.3 Headings.
The table of contents and the article, section, paragraph and
other headings contained in this Amendment are inserted for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Amendment.
Section 2.4 Counterparts.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same agreement.
Section 2.5 Entire Agreement.
This Amendment, the Agreement, the Ancillary Agreements, the
TRW Disclosure Letter, the Exhibits to the Agreement and this Amendment, the
Schedules to the Agreement, and the Confidentiality Agreement constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof, and supersede and cancel all prior agreements, negotiations,
correspondence, undertakings, understandings and communications of the parties,
oral and written, with respect to the subject matter hereof.
16
IN WITNESS WHEREOF, the parties have executed or caused this
Amendment to be executed as of the date first written above.
XXXXXXXX CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President,
Associate General Counsel and
Secretary
TRW INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
TRW SYSTEMES AERONAUTIQUES CIVILS
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
TRW SYSTEMES AERONAUTIQUES
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
XXXXXXXX CONTROL SYSTEMS S.A.S.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
Exhibit A
[Xxxxxxxx Corporation agrees to furnish supplementally to the Securities and
Exchange Commission, upon request, a copy of any schedule referred to in the
Agreement.]
