UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
PAINE WEBBER GROUP INC.
(Name of Issuer)
COMMON STOCK
$1 PAR VALUE
(Title of Class of Securities)
69562910
(Cusip Number)
GENERAL ELECTRIC COMPANY
GENERAL ELECTRIC CAPITAL SERVICES, INC.
GENERAL ELECTRIC CAPITAL CORPORATION
KIDDER, PEABODY GROUP INC.
KIDDER, PEABODY & CO. INCORPORATED
(Name of Persons Filing Statement)
ROBERT E. HEALING
GENERAL ELECTRIC COMPANY
3135 Easton Turnpike
Fairfield, Connecticut 06431
(203) 373-2243
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
August 6, 1997
(Date of Event which Requires Filing of
this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this statement because of Rule 13d-1(b)(3) or (4), check the following:
[ ].
Check the following box if a fee is being paid with this statement: [ ]
SCHEDULE 13D
CUSIP NO. 69562910 Page 2-I of 11 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GENERAL ELECTRIC COMPANY
IRS NO. 14-0089340
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
Not Applicable (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [X]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
0
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 27,015,720 (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10 SHARED DISPOSITIVE POWER
27,015,720 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,015,720 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.83% (See Item 5)
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP NO. 69562910 Page 2-II of 11 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GENERAL ELECTRIC CAPITAL SERVICES, INC.
IRS NO. 06-11095031
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
Not Applicable (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 27,015,720 (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10 SHARED DISPOSITIVE POWER
27,015,720 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,015,720 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
27.83% (See Item 5)
14 TYPE OF REPORTING PERSON
CO, HC
SCHEDULE 13D
CUSIP NO. 69562910 Page 2-III of 11 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GENERAL ELECTRIC CAPITAL CORPORATION
IRS NO. 13-1500700
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
Not Applicable (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
0
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 5,515,720 (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10 SHARED DISPOSITIVE POWER
5,515,720 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,515,720 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.68% (See Item 5)
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP NO. 69562910 Page 2-IV of 11 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KIDDER, PEABODY GROUP INC.
IRS NO. 04-2941506
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
Not Applicable (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP NO. 69562910 Page 2-V of 11 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
KIDDER, PEABODY & CO. INCORPORATED
IRS NO. 13-5650440
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
Not Applicable (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 21,500,000 (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON WITH
10 SHARED DISPOSITIVE POWER
21,500,000 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,500,000 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
23.48% (See Item 5)
14 TYPE OF REPORTING PERSON
CO
This amendment amends a statement on Schedule 13D relating to the
common stock, $1 par value per share (the "Common Stock"), of Paine Webber
Group Inc., a Delaware corporation (the "Company"), filed with the Securities
and Exchange Commission on November 14, 1994 (the "Initial Schedule 13D"), and
amended and supplemented by Amendment No. 1 filed on December 21, 1994
(together with the Initial Schedule 13D, the "Schedule 13D").
Certain capitalized terms used in this statement but not otherwise
defined herein have the meanings given to them in the Schedule 13D. This
statement is being filed on behalf of GE, GECS, GECC, Kidder and KPCI (each
as defined below).
Item 2. Identity and Background
Item 2 of the Schedule 13D is amended and restated in its entirety to
read as follows:
(a) - (c)
This statement is filed by:
General Electric Company, a New York
corporation ("GE")
3135 Easton Turnpike
Fairfield, Connecticut 06431
General Electric Capital Services, Inc., a
Delaware corporation ("GECS")
260 Long Ridge Road
Stamford, Connecticut 06927
General Electric Capital Corporation, a
New York corporation ("GECC")
260 Long Ridge Road
Stamford, Connecticut 06927
Kidder, Peabody Group Inc., a Delaware
corporation ("Kidder")
140 Broadway
New York, New York 10005
Kidder, Peabody & Co. Incorporated,
a Delaware corporation ("KPCI")
140 Broadway
New York, New York 10005
The name, business address, present principal occupation or employment,
and citizenship of each director and executive officer of GE, GECS, GECC,
Kidder and KPCI is set forth on Schedule A hereto.
GE and its consolidated affiliates engage in developing, manufacturing
and marketing a wide variety of products for the generation, transmission,
distribution, control and utilization of electricity. The products of GE and
its consolidated affiliates include, but not are limited to: lamps; major
appliances for the home; industrial automation products and components; motors;
electrical distribution and control equipment; locomotives; power generation
and delivery products; nuclear reactors, nuclear power support services and
fuel assemblies; commercial and military aircraft jet engines; materials,
including plastics, silicones and superabrasives; and a wide variety of high
technology products including products used in defense and medical diagnostic
applications.
GE and its consolidated affiliates also offer a broad variety of
services, including: product support services; electrical product supply
houses; electrical apparatus installation, engineering, repair and rebuilding
services; and computer-related information services. A wholly owned
subsidiary of GE, National Broadcasting Company, Inc., is engaged principally
in furnishing network television services and in operating television stations
and in providing cable programming and distribution services in the United
States, Europe, Asia and Latin America.
GECS, a wholly owned subsidiary of GE, is the indirect parent
corporation of Kidder and the direct parent corporation of KPCI. GECS, through
its principal subsidiaries, one of which is GECC, engages in a broad array of
financial services including consumer financing, commercial and industrial
financing, real estate financing, asset management and leasing, mortgage
services, consumer saving and insurance services, and specialty insurance and
reinsurance.
GECC, together with its subsidiaries, engages in financing services
that include a full range of leasing, lending, equipment management, sales
services, and consumer savings and insurance services. GECC's specialty
insurance activities include providing financial guaranty insurance,
principally on municipal bonds and structured finance issues, private mortgage
insurance and creditor insurance covering international consumer loan
repayments.
In the past, Kidder, through its then-principal subsidiary, KPCI,
provided a wide variety of financing, insurance, investment banking and
securities brokerage products and services, including securities underwriting,
financial futures activities, sales and trading of debt and equity securities,
advisory services for mergers, acquisitions and other corporate financial
transactions, specialty insurance, merchant banking, research services, asset
management, mid-market financing, equipment management, full-service
securities brokerage and specialized financing. GE elected in November 1994
to terminate the operations of Kidder and KPCI. In December 1994, KPCI
received securities in the Company in exchange for certain broker-dealer
assets and operations. Kidder's current primary activities are managing its
remaining assets and liabilities as it winds down its operations and serving
as a holding company for Kidder, Peabody International Corporation. In
December 1996, Kidder sold all of the issued and outstanding common stock of
KPCI to GECS in exchange for promissory notes issued by GECS.
KPCI is a wholly-owned subsidiary of GECS. In the past, KPCI provided
a wide variety of financing, insurance, investment banking and securities
brokerage products and services including securities underwriting, financial
futures activities, sales and trading of debt and equity securities, advisory
services for mergers, acquisitions and other corporate financial transactions,
specialty insurance, merchant banking, research services, asset management,
mid-market financing, equipment management, full-service securities brokerage
and specialized financing. KPCI's primary activities are ownership of the
securities of the Company originally received in December 1994, ownership of
other assets, and the defense and settlement of, and other tasks connected
to, the various lawsuits pending against it. After the transaction described
in Items 3, 4 and 5, KPCI will no longer by a subsidiary of GE and will become
a wholly-owned subsidiary of the Company.
(d) - (e)
Except as set forth below, during the last five years, none of GE,
GECS, GECC, Kidder, KPCI or, to the best of their knowledge, any of the
persons listed on Schedule A hereto has (i) been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) been
a party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities law or finding
any violation with respect to such laws.
Her Majesty's Inspectorate of Pollution v. IGE Medical Systems Limited
(St. Albans Magistrates Court, St. Albans, Hertfordshire, England, Case No.
04/00320181)
In April, 1994, General Electric Medical System's U.K. subsidiary, IGE
Medical Systems Limited ("IGEMS") discovered the loss of a radioactive barium
source at the Radlett, England facility. The lost source, used to calibrate
nuclear camera detectors, emits a very low level of radiation. IGEMS
immediately reported the loss as required by the U.K. Radioactive Substances
Act. An ensuing investigation, conducted in cooperation with government
authorities, failed to locate the source. On July 21, 1994, Her Majesty's
Inspectorate of Pollution ("HMIP") charged IGEMS with violating the
Radioactive Substances Act by failing to comply with a condition of
registration. The Act provides that a registrant like IGEMS, which "does not
comply with a limitation or condition subject to which (it) is so
registered . . . shall be guilty of (a criminal) offense." Condition 7 of
IGEMS' registration states that it "shall so far as is reasonably
practicable prevent . . . loss of any registered source."
At the beginning of trial on February 24, 1995, IGEMS entered a guilty
plea and agreed to pay of fine of Pound Sterling5,000 and assessed costs of
Pound Sterling5,754. The prosecutor's presentation focused primarily on the
1991 change in internal IGEMS procedures and, in particular, the source
logging procedure. The prosecutor complimented IGEMS' investigation and
efforts to locate the source and advised the court that IGEMS had no previous
violations of the Radioactive Substances Act. He also told the court that the
Radlett plant had been highlighted as an exemplary facility to HIMP inspectors
as part of their training. In mitigation, IGEMS emphasized the significant
infrastructure and expense undertaken by IGEMS to provide security for
radiation sources and the significant effort and expense incurred in
attempting to locate the missing source.
(f) The citizenship of the directors and executive officers of the
reporting persons is set forth on Schedule A hereto.
Item 3. Source and Amount of Funds or Other Consideration
The response set forth in Item 3 of the Schedule 13D is hereby amended
and supplemented by the following information:
Pursuant to a Share Purchase Agreement dated August 6, 1997 by and
among GECS, GE and the Company (the "Share Purchase Agreement"), the Company
will receive all of the outstanding voting stock of KPCI. In exchange for all
of KPCI's voting stock, GECS will receive 15,500,000 shares of newly-
issued Common Stock, a purchase money note for $442 million and $219 million
in cash, all as more fully described under "Item 4 -- Purpose of Transaction".
Item 4. Purpose of Transaction.
The response set forth in Item 4 of the Schedule 13D is hereby amended
and supplemented by the following information:
Pursuant to the Share Purchase Agreement, the Company has agreed to
acquire all of the outstanding voting stock of KPCI. The consideration to
GECS in exchange for KPCI's stock will be 15,500,000 shares of newly-issued
Common Stock, a purchase money note for $442 million and $219 million in
cash. In addition, GE and GECS have agreed to indemnify the Company for
breaches of their various representations, warranties, covenants and
agreements and with respect to certain other matters described therein.
GECS may also receive additional consideration in the event that, at any
time on or prior to the first anniversary of the Closing, (i) the Company
enters into a definitive agreement, letter of intent or other understanding
relating to the terms of any Acquisition Transaction (as defined in the
Share Purchase Agreement) that is required to be disclosed pursuant to the
Federal securities laws or the rules of the New York Stock Exchange, or
(ii) any person shall have commenced, or announced an intention to
commence, an Acquisition Transaction and, in either case, such Acquisition
Transaction is consummated within eighteen months after the Closing. In
such case, the Company shall pay to GECS, simultaneously with the
consummation of such Acquisition Transaction, an amount equal to the
product of (i) $219,000,000 and (ii) a fraction, the numerator of which is
the excess, if any, of (x) the amount equal to the sum of the cash portion,
if any, and the fair market value of the non-cash portion, if any, of the
consideration per share of the Company's common stock received by the
stockholders of the Company in connection with any Acquisition Transaction
over (y) $36.50, and the denominator of which is $36.50. The Share
Purchase Agreement is attached hereto as Exhibit 99(c).
The closing of the transaction (the "Closing") will occur on the first
business day after the date that all of the conditions to Closing have been
satisfied. The Closing conditions consist of (i) expiration or termination of
any applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 and (ii) the absence of an order or injunction
prohibiting or enjoining the Closing.
On July 31, 1997, GECC acquired from KPCI (i) 1,000,000 shares of 6%
Cumulative Convertible Redeemable Preferred Stock, Series A (the "Convertible
Preferred Stock") of the Company and (ii) 2,500,000 shares of 9% Cumulative
Redeemable Preferred Stock, Series C (the "Redeemable Preferred Stock") of the
Company from KPCI in exchange for $475 million in cash. The Convertible
Preferred Stock is convertible into 5,515,720 shares of Common Stock, subject
to customary antidilution provisions, representing approximately 5.68% of the
currently outstanding Common Stock of the Company after giving effect to the
conversion of the Convertible Preferred Stock (hereinafter referred to as a
"conversion-diluted basis") (or approximately 6.06% of the outstanding Common
Stock of the Company on a conversion-diluted basis after giving effect to the
transaction to be effected at the Closing).(1)
- ---------------
(1) For the purpose of this Amendment No. 2, all calculations of ownership
percentages for shares of Common Stock owned after the Closing exclude the
21,500,000 shares of Common Stock that will continue to be owned by KPCI.
GECC acquired the Convertible Preferred Stock and the Redeemable
Preferred Stock for investment. GECS will acquire the 15,500,000 newly-issued
shares of Common Stock pursuant to the transaction for investment. GECS and
GECC intend to review from time to time the Company's business affairs and
financial position. Based on such evaluation and review, as well as general
economic and industry conditions existing at the time, GECS and GECC may
consider from time to time various alternative courses of action as permitted
by the Amended and Restated Stockholders Agreement dated August 6, 1997 among
the Company, GE, GECS, GECC and Kidder (the "Amended and Restated Stockholders
Agreement"). The Amended and Restated Stockholders Agreement will become
effective at the time of the Closing. An existing Stockholders Agreement
dated December 16, 1994 (the "Stockholders Agreement") among the Company, GE
and Kidder is currently in effect, and will remain in effect until the
Closing. In addition to the restrictions on the ability of GE and its
affiliates to acquire or dispose of securities of the Company which are found
in the current Stockholders Agreement, the Amended and Restated Stockholders
Agreement imposes a one-year moratorium on transfers of Voting Securities by
GECS or GECC following the Closing, other than transfers to affiliates of GE
or transfers pursuant to an acquisition of control of the Company by a third
party which is not opposed by the Company's Board of Directors. Similarly,
GECS's and GECC's right to request a demand registration of their Voting
Securities may not be exercised until the first anniversary of the Closing.
Except as set forth above and except as contemplated by the Amended and
Restated Stockholders Agreement, none of GE, GECS, GECC, Kidder, KPCI or, to
the best of their knowledge, any of the persons listed on Schedule A hereto
has a plan or proposal which relates to or would result in any of the
transactions described in subparagraphs (a) through (j) of Item 4 of Schedule
13D.
Item 5. Interest in Securities of the Company.
Item 5 of the Schedule 13D is amended and restated in its entirety to
read as follows:
(a) GECC, for the purpose of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934 (the "Exchange Act"), directly beneficially
owns 5,515,720 shares of Common Stock, such shares being deliverable upon an
exercise of the conversion privilege of the Convertible Preferred Stock; such
shares represent approximately 5.68% of the currently outstanding Common Stock
of the Company on a conversion-diluted basis.
KPCI, for the purpose of Rule 13d-3 promulgated under the Exchange Act,
directly beneficially owns 21,500,000 shares of Common Stock, representing
approximately 23.48% of the currently outstanding Common Stock of the Company.
GECS is the direct parent corporation of GECC and KPCI, and, for the
purpose of Rule 13d-3 promulgated under the Exchange Act, GECS indirectly
beneficially owns 27,015,720 shares of Common Stock, representing
approximately 27.83% of the currently outstanding Common Stock of the Company
on a conversion-diluted basis.
GE is the direct parent corporation of GECS, and, for the purpose of
Rule 13d-3 promulgated under the Exchange Act, GE indirectly beneficially owns
27,015,720 shares of Common Stock, representing approximately 27.83% of the
currently outstanding Common Stock of the Company on a conversion-
diluted basis.
After the Closing of the Share Purchase Agreement, GECS will acquire
and, for the purpose of Rule 13d-3 promulgated under the Exchange Act, GECS
will directly beneficially own 15,500,000 shares of newly-issued Common Stock,
representing approximately 17.02% of the outstanding Common Stock of the
Company after giving effect to the transactions to be effected at the Closing
and on a conversion-diluted basis. GECS, as the parent corporation of GECC,
will indirectly beneficially own 21,015,720 shares of Common Stock,
representing approximately 23.08% Common Stock of the Company on a
conversion-diluted basis, after giving effect to the transactions to be
effected at the Closing.
GE, as the parent corporation of GECS and GECC, for the purpose of Rule
13d-3 promulgated under the Exchange Act, will indirectly beneficially own
21,015,720 shares of Common Stock, representing approximately 23.08% Common
Stock of the Company on a conversion-diluted basis, after giving effect to the
transactions to be affected at the Closing.
After the Closing of the Share Purchase Agreement, GE and GECS will
beneficially own 6,000,000 fewer shares of Common Stock than GE and GECS
currently beneficially own, representing a reduction from approximately 27.83%
of the outstanding shares of Common Stock (calculated on a conversion-
diluted basis) immediately prior to the Closing to approximately 23.08% of the
outstanding shares of Common Stock (calculated on a conversion-diluted basis)
immediately following the Closing.
After the Closing of the Share Purchase Agreement, KPCI will no longer
be a wholly-owned subsidiary (directly or indirectly) of GE or GECS.
Immediately after the Closing, KPCI will continue to directly beneficially own
21,500,000 shares of Common Stock.
Except as set forth in this Item 5(a), none of GE, GECS, GECC, Kidder,
KPCI or, to the best of their knowledge, any of the persons listed in Schedule
A hereto beneficially own any Common Stock.
(b) Subject to the terms of the Stockholders Agreement, GECS, as the
parent corporation of GECC and KPCI, and GE, as the parent corporation of
GECS, currently have indirect shared power to vote and dispose of 27,015,720
shares of Common Stock. After the Closing of the Share Purchase Agreement,
subject to the terms of the Amended and Restated Stockholders Agreement, GECS,
as the parent corporation of GECC, and GE, as the parent corporation of GECS,
will have indirect shared power to vote and dispose of 21,015,720 shares of
Common Stock.
(c) Other than the transactions described herein, there were no
purchases or sales of Common Stock effected during the past 60 days by GE,
GECS, GECC, Kidder, KPIC or, to the best of their knowledge, any person listed
in Schedule A hereto.
(d) Not Applicable.
(e) At the time of the Initial Schedule 13D, KPCI was a wholly-owned
subsidiary of Kidder. In December 1996, Kidder sold all of the common stock
of KPCI to GECS. Kidder no longer beneficially owns, directly or indirectly,
any Voting Securities of the Company, and is a reporting person for purposes
of this Amendment No. 2 solely to terminate its reporting obligations with
respect to subsequent amendments to this Schedule 13D.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities
of the Company
The response set forth in Item 6 of the Schedule 13D is hereby amended
and supplemented by the following information:
In connection with the transaction contemplated by the Share Purchase
Agreement, the Company, GE, GECS, GECC and Kidder have entered into an Amended
and Restated Stockholders Agreement, which amends and restates the existing
Stockholders Agreement among the Company, GE and Kidder. The Stockholders
Agreement will remain in effect until the Closing, at which time the Amended
and Restated Stockholders Agreement will become effective. The following is a
summary of certain amendments to the Stockholders Agreement which have been
incorporated in the Amended and Restated Stockholders Agreement. This summary
is qualified in its entirety by reference to the copy of the Amended and
Restated Stockholders Agreement attached hereto as Exhibit 99(d) and
incorporated herein by reference.
In addition to those transfer restrictions found in the Stockholders
Agreement, the Amended and Restated Stockholders Agreement imposes a 12-
month moratorium on transfers of Voting Securities by GECS or GECC following
the Closing, other than transfers to affiliates of GE or transfers pursuant to
an acquisition of control of the Company by a third party not opposed by the
Company's Board of Directors. Similarly, GECS's and GECC's right to request a
demand registration of their Voting Securities may not be exercised until the
first anniversary of the Closing.
The Amended and Restated Stockholder Agreement shall terminate upon (a)
the written agreement of the parties thereto or (b) the earlier of (i)
December 16, 2009 and (ii) the third anniversary of the date on which GE and
its affiliates no longer own any Voting Securities.
Except for the Share Purchase Agreement, the Stockholders Agreement
and the Amended and Restated Stockholders Agreement, which will become
effective at the Closing, and as described under "Item 4 -- Purpose of
Transaction," to the best of GE's, GECS's, GECC's, Kidder's and KPCI's
knowledge, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) between the persons enumerated in Item
2, and any other person, with respect to any securities of the Company,
including, but not limited to, transfer or voting of any of the Voting
Securities, finder's fees, joint ventures, loan or option arrangements,
puts or calls, guarantees of profits, division of profits or loss, or the
giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
Exhibit 99(c): Share Purchase Agreement
Exhibit 99(d): Amended and Restated Stockholders Agreement
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 8, 1997
GENERAL ELECTRIC COMPANY
By: /s/ Pamela Daley
------------------------------
Name: Pamela Daley
Title: Vice President
GENERAL ELECTRIC CAPITAL SERVICES, INC.
By: /s/ Joan Amble
----------------------------------
Name: Joan Amble
Title: Vice President and
Controller
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Joan Amble
----------------------------------
Name: Joan Amble
Title: Vice President and
Controller
KIDDER, PEABODY GROUP INC.
By: /s/ Joan Amble
----------------------------------
Name: Joan Amble
Title: Senior Vice President
KIDDER, PEABODY & CO. INCORPORATED
By: /s/ Joan Amble
----------------------------------
Name: Joan Amble
Title: Senior Vice President
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF GENERAL ELECTRIC COMPANY
GENERAL ELECTRIC COMPANY DIRECTORS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ------------------- ------------------------ -----------------------
D.W. Calloway PepsiCo, Inc. Retired Director and
700 Anderson Hill Road Chairman of the Board,
Purchase, NY 10577 PepsiCo, Inc.
J.I. Cash, Jr. Harvard Business School Professor of Business
Baker Library 187 Administration-Graduate
Soldiers Field School of Business
Boston, MA 02163 Administration, Harvard
University
S.S. Cathcart 222 Wisconsin Avenue Retired Chairman,
Suite 103 Illinois Tool Works
Lake Forest, IL 60045
D.D. Dammerman General Electric Company Senior Vice President-
3135 Easton Turnpike Finance, General
Fairfield, CT 06431 Electric Company
P. Fresco General Electric Company Vice Chairman of the Board
(U.S.A.) and Executive Officer,
3 Shortlands, Hammersmith General Electric Company
London, W6 8BX, England
C.X. Gonzalez Kimberly-Clark de Mexico, Chairman of the Board and
S.A. de C.V. Chief Executive Officer,
Jose Luis Lagrange 103, Kimberly-Clark de Mexico,
Tercero Piso S.A. de C.V.
Colonia Los Morales
Mexico, D.F. 11510, Mexico
G.G. Michelson Federated Department Stores Former Member of the
151 West 34th Street Board of Directors,
New York, NY 10001 Federated Department
Stores
S. Nunn King & Spalding Partner, King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
J.D. Opie General Electric Company Vice Chairman of the
3135 Easton Turnpike Board and Executive
Fairfield, CT 06431 Officer
R.S. Penske Penske Corporation Chairman of the Board
13400 Outer Drive, West and President, Penske
Detroit, MI 48239-4001 Corporation
B.S. Prieskel Suite 3125 Former Senior Vice
60 East 42nd Street President, Motion
New York, NY 10165 Picture Associations
of America
F.H.T. Rhodes Cornell University President Emeritus
3104 Snee Building Cornell University
Ithaca, NY 14853
A.C. Sigler Champion International Retired Chairman of the
Corporation Board and CEO
1 Champion Plaza and former Director,
Stamford, CT 06921 Champion International
Corporation
D.A. Warner III J. P. Morgan & Co., Inc. Chairman of the Board,
& Morgan Guaranty Trust Co. President, and Chief
60 Wall Street Executive Officer,
New York, NY 10260 J.P. Morgan & Co.
Incorporated and Morgan
Guaranty Trust Company
J.F. Welch, Jr. General Electric Company Chairman of the Board
3135 Easton Turnpike and Chief Executive
Fairfield, CT 06431 Officer, General Electric
Company
Citizenship
-----------
C. X. Gonzalez Mexico
P. Fresco Italy
All Others U.S.A.
GENERAL ELECTRIC COMPANY EXECUTIVE OFFICERS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ------------------ --------------------------- ---------------------------
J.H. Myers General Electric Investment Chairman of the Board and
Corporation President, General Electric
3003 Summer Street Investment Corporation
Stanford, CT 06904
B.W. Heineman, Jr. General Electric Company Senior Vice President
3135 Easton Turnpike General Counsel
Fairfield, CT 06431 and Secretary
J.F. Welch, Jr. General Electric Company Chairman of the Board
3135 Easton Turnpike and Chief Executive Officer
Fairfield, CT 06431
P. Fresco General Electric Company Vice Chairman of the
(U.S.A.) Board and Executive
3 Shortlands, Hammersmith Officer
London, W6 8BX, England
P.D. Ameen General Electric Company Vice President and
3135 Easton Turnpike Comptroller
Fairfield, CT 06431
J.R. Bunt General Electric Company Vice President and
3135 Easton Turnpike Treasurer
Fairfield, CT 06431
D.L. Calhoun General Electric Company Vice President -
2901 East Lake Road GE Transportation
Erie, PA 16531 Systems
W.J. Conaty General Electric Company Senior Vice President -
3135 Easton Turnpike Human Resources
Fairfield, CT 06431
D. M. Cote General Electric Company Senior Vice President -
3135 Easton Turnpike GE Appliances
Fairfield, CT 06431
D.D. Dammerman General Electric Company Senior Vice President -
3135 Easton Turnpike Finance
Fairfield, CT 06431
L.S. Edelheit General Electric Company Senior Vice President -
P.O. Box 8 Corporate Research
Schenectady, NY 12301 and Development
J. R. Immelt General Electric Company Senior Vice President -
P.O. Box 414 GE Medical Systems
Milwaukee, WI 53201
W.J. Lansing General Electric Company Vice President-
3135 Easton Turnpike Corporate Business
Fairfield, CT 06431 Development
W.J. McNerney, Jr. General Electric Company Senior Vice President -
Nela Park GE Lighting
Cleveland, OH 44122
E.F. Murphy General Electric Company Senior Vice President -
1 Neumann Way GE Aircraft Engines
Cincinnati, OH 05215
R.L. Nardelli General Electric Company Senior Vice President -
1 River Road GE Power Systems
Schenectady, NY 12345
R.W. Nelson General Electric Company Vice President -
3135 Easton Turnpike Corporate Financial
Fairfield, CT 06431 Planning and Analysis
J.D. Opie General Electric Company Vice Chairman of the
3135 Easton Turnpike Board and Executive
Fairfield, CT 06431 Officer
G.M. Reiner General Electric Company Senior Vice President -
3135 Easton Turnpike Chief Information
Fairfield, CT 06431 Officer
G.L. Rogers General Electric Company Senior Vice President -
1 Plastics Avenue GE Plastics
Pittsfield, MA 01201
J.W. Rogers General Electric Company Vice President -
1635 Broadway GE Motors
Fort Wayne, IN 46801
L.G. Trotter General Electric Company Vice President -
41 Woodford Avenue GE Electrical
Plainville, CT 06062 Distribution and
Control
Citizenship
-----------
P. Fresco Italy
All Others U.S.A.
DIRECTORS AND EXECUTIVE OFFICERS
OF
GENERAL ELECTRIC CAPITAL SERVICES, INC.
GENERAL ELECTRIC CAPITAL SERVICES, INC. DIRECTORS
<TABLE>
<CAPTION>
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ------------------ ----------------------------- ---------------------------------
<S> <C> <C>
G.C. Wendt General Electric Capital Chairman, President and Chief
Services, Inc. Executive Officer, General
260 Long Ridge Road Electric Capital Services, Inc.
Stamford, CT 06927
K. Ahlmann Employers Reinsurance Executive Vice President,
Corporation General Electric Capital
5200 Metcalf Services, Inc. President and
Overland Park, KS 66202 Chief Operating Officer,
Employers Reinsurance Corp.
N.D.T. Andrews General Electric Capital Executive Vice President,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
J.R. Bunt General Electric Company Vice President and Treasurer,
3135 Easton Turnpike General Electric Company
Fairfield, CT 06431
D.D. Dammerman General Electric Company Senior Vice President -
3135 Easton Turnpike Finance and Chief Financial
Fairfield, CT 06431 Officer, General Electric
Company
P. Fresco General Electric Company Vice Chairman and Executive
3135 Easton Turnpike Officer, General Electric
Fairfield, CT 06431 Company
B.W. Heineman, Jr. General Electric Company Senior Vice President, General
3135 Easton Turnpike Counsel and Secretary,
Fairfield, CT 06431 General Electric Company
J.H. Myers General Electric Investment Chairman of the Board and
Corporation President, General Electric
3003 Summer Street Investment Corporation
Stamford, CT 06904
R.L. Nardelli GE Power Systems Senior Vice President, GE
One River Road Power Systems
Schenectady, NY 12345
D.J. Nayden General Electric Company Executive Vice President,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Services, Inc.
M.A. Neal General Electric Capital Executive Vice President,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
J.M. Samuels General Electric Company Vice President and Senior
3135 Easton Turnpike Counsel, Corporate Taxes,
Fairfield, CT 06431 General Electric Company
E.D. Stewart General Electric Capital Executive Vice President,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
J.F. Welch, Jr. General Electric Company Chairman and Chief Executive
3135 Easton Turnpike Officer, General Electric
Fairfield, CT 06431 Company
Citizenship
-----------
K. Ahlmann Denmark
N.D.T. Andrews U.K.
P. Fresco Italy
All Others U.S.A.
</TABLE>
GENERAL ELECTRIC CAPITAL SERVICES, INC. EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---------------- -------------------------- ---------------------------------
<S> <C> <C>
G.C. Wendt General Electric Capital Chairman, President and Chief
Services, Inc. Executive Officer, General
260 Long Ridge Road Electric Capital Services, Inc.
Stamford, CT 06927
K. Ahlman Employers Reinsurance Executive Vice President,
Corporation General Electric Capital
5200 Metcalf Services, Inc.
Overland Park, KS 66202 President and Chief Operating
Officer, Employers
Reinsurance Corporation
N.D.T. Andrews General Electric Capital Executive Vice President,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
D.J. Nayden General Electric Capital Executive Vice President,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
M.A. Neal General Electric Capital Executive Vice President,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
E.D. Stewart General Electric Capital Executive Vice President,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
N.E. Barton General Electric Capital Senior Vice President, General
Services, Inc. Counsel and Secretary,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Services, Inc.
J.A. Parke General Electric Capital Senior Vice President,
Services, Inc. Finance, General Electric
260 Long Ridge Road Capital Services, Inc.
Stamford, CT 06927
L.J. Toole General Electric Capital Senior Vice President, Human
Services, Inc. Resources, General Electric
260 Long Ridge Road Capital Services, Inc.
Stamford, CT 06927
J.S. Werner General Electric Capital Senior Vice President,
Services, Inc. Corporate Treasury and
201 High Ridge Road Global Funding Operation,
Stamford, CT 06927 General Electric Capital
Services, Inc.
Citizenship
-----------
K. Ahlmann Denmark
N.D.T. Andrews U.K.
P. Fresco Italy
All Others U.S.A.
</TABLE>
DIRECTORS AND EXECUTIVE OFFICERS
OF
GENERAL ELECTRIC CAPITAL CORPORATION
GENERAL ELECTRIC CAPITAL CORPORATION DIRECTORS
<TABLE>
<CAPTION>
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ------------------- -------------------------------------- -------------------------------
<S> <C> <C>
N.D.T. Andrews General Electric Capital Corporation Executive Vice
260 Long Ridge Road President, General Electric
Stamford, CT 06927 Capital Corporation
N.E. Barton General Electric Capital Corporation Senior Vice President,
260 Long Ridge Road General Counsel and
Stamford, CT 06927 Secretary, General Electric
Capital Corporation
J.R. Bunt General Electric Company Vice President and
3135 Easton Turnpike Treasurer, General Electric
Fairfield, CT 06431 Company
D.D. Dammerman General Electric Company Senior Vice President-
3135 Easton Turnpike Finance and Chief
Fairfield, CT 06431 Financial Officer, General
Electric Company
P. Fresco General Electric Company Vice Chairman and
3135 Easton Turnpike Executive Officer, General
Fairfield, CT 06431 Electric Company
B.W. Heineman, General Electric Company Senior Vice President,
Jr. 3135 Easton Turnpike General Counsel and
Fairfield, CT 06431 Secretary, General Electric
Company
J.H. Myers General Electric Investment Chairman of the Board and
Corporation President, General Electric
3003 Summer Street Investment Corporation
Stamford, CT 06904
R.L. Nardelli General Electric Company Senior Vice President
One River Road GE Power Systems
Schenectady, NY 12345
D.J. Nayden General Electric Capital Corporation President and Chief
260 Long Ridge Road Operating Officer, General
Stamford, CT 06927 Electric Capital Corporation
M.A. Neal General Electric Capital Corporation Executive Vice
260 Long Ridge Road President, General Electric
Stamford, CT 06927 Capital Corporation
J.A. Parke General Electric Capital Corporation Senior Vice President,
260 Long Ridge Road Finance, General Electric
Stamford, CT 06927 Capital Corporation
J.M. Samuels General Electric Company Vice President and
3135 Easton Turnpike Senior Counsel,
Fairfield, CT 06431 Corporate Taxes, General
Electric Company
E.D. Stewart General Electric Capital Corporation Executive Vice
260 Long Ridge Road President, General Electric
Stamford, CT 06927 Capital Corporation
J.F. Welch, Jr. General Electric Company Chairman and Chief
3135 Easton Turnpike Executive Officer, General
Fairfield, CT 06431 Electric Company
G.C. Wendt General Electric Capital Corporation Chairman and Chief
260 Long Ridge Road Executive Officer, General
Stamford, CT 06927 Electric Capital Corporation
Citizenship
-----------
N.D.T. Andrews U.K.
P. Fresco Italy
All Others U.S.A.
</TABLE>
GENERAL ELECTRIC CAPITAL CORPORATION EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ---------------- -------------------------------------- ---------------------------------
<S> <C> <C>
G.C. Wendt General Electric Capital Corporation Chairman and Chief
260 Long Ridge Road Executive Officer, General
Stamford, CT 06927 Electric Capital Corporation
D.J. Nayden General Electric Capital Corporation President and Chief Operating
260 Long Ridge Road Officer, General Electric
Stamford, CT 06927 Capital Corporation
N.D.T. Andrews General Electric Capital Corporation Executive Vice President,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Corporation
M.A. Neal General Electric Capital Corporation Executive Vice President,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Corporation
E.D. Stewart General Electric Capital Corporation Executive Vice President,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Corporation
N.E. Barton General Electric Capital Corporation Senior Vice President,
260 Long Ridge Road General Counsel and
Stamford, CT 06927 Secretary, General Electric
Capital Corporation
J.A. Colica General Electric Capital Corporation Senior Vice President,
260 Long Ridge Road Risk Management and
Stamford, CT 06927 Credit Policy, General Electric
Capital Corporation
M.D. Fraizer General Electric Capital Corporation Senior Vice President
292 Long Ridge Road Insurance/Investment
Stamford, CT 06927 Products, General Electric
Capital Corporation
R.L. Lewis General Electric Capital Corporation Senior Vice President,
1600 Summer Street Global Project and
6th Floor Structured Finance,
Stamford, CT 06905 General Electric Capital
Corporation
J.A. Parke General Electric Capital Corporation Senior Vice President,
260 Long Ridge Road Finance, General Electric
Stamford, CT 06927 Capital Corporation
T. S. Thomson General Electric Capital Corporation Senior Vice President,
260 Long Ridge Road Strategic Planning and
Stamford, CT 06927 Business Development,
General Electric Capital
Corporation
L.J. Toole General Electric Capital Corporation Senior Vice President,
260 Long Ridge Road Human Resources,
Stamford, CT 06927 General Electric Capital
Corporation
J.S. Werner General Electric Capital Corporation Senior Vice President,
201 High Ridge Road Corporate Treasury and Global
Stamford, CT 06927 Funding Operation, General
Electric Capital Corporation
Citizenship
------------
N.D.T. Andrews U.K.
All Others U.S.A.
</TABLE>
DIRECTORS AND EXECUTIVE OFFICERS
OF
KIDDER, PEABODY GROUP INC.
KIDDER, PEABODY GROUP INC. DIRECTORS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- -------------- ------------------------ ------------------------------
J. Amble General Electric Capital Vice President and Controller,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
N. E. Barton General Electric Capital Senior Vice President, General
Services, Inc. Counsel and Secretary,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Services, Inc.
D.D. Dammerman General Electric Company Senior Vice President -
3135 Easton Turnpike Finance and Chief Financial
Fairfield, CT 06431 Officer, General Electric
Company
J.A. Parke General Electric Capital Senior Vice President -
Services, Inc. Finance, General Electric
260 Long Ridge Road Capital Services, Inc.
Stamford, CT 06927
Citizenship
-----------
All Directors U.S.A.
DIRECTORS AND EXECUTIVE OFFICERS
OF
KIDDER, PEABODY & CO., INCORPORATED
KIDDER, PEABODY GROUP INC. EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
PRESENT PRESENT
NAME AND TITLE BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ------------------------ ------------------------ --------------------------------
<S> <C> <C>
J.A. Parke, Chairman and General Electric Capital Senior Vice President -
Chief Executive Officer Services, Inc. Finance, General Electric
260 Long Ridge Road Capital Services, Inc.
Stamford, CT 06927
J. Amble, Senior Vice General Electric Capital Vice President and Controller,
President Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
N. E. Barton, Senior Vice General Electric Capital Senior Vice President, General
President and Secretary Services, Inc. Counsel and Secretary,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Services, Inc.
Citizenship
-----------
All Executive Officers U.S.A.
</TABLE>
DIRECTORS AND EXECUTIVE OFFICERS
OF
KIDDER, PEABODY & CO., INCORPORATED
KIDDER, PEABODY & CO., INCORPORATED DIRECTORS
PRESENT PRESENT
NAME BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ------------- ------------------------- -------------------------------
J.A. Parke General Electric Capital Senior Vice President -
Services, Inc. Finance, General Electric
260 Long Ridge Road Capital Services, Inc.
Stamford, CT 06927
J. Amble General Electric Capital Vice President and Controller,
Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
N. E. Barton General Electric Capital Senior Vice President, General
Services, Inc. Counsel and Secretary,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Services, Inc.
Citizenship
-----------
All Directors U.S.A.
DIRECTORS AND EXECUTIVE OFFICERS
OF
KIDDER, PEABODY & CO., INCORPORATED
KIDDER, PEABODY & CO., INCORPORATED EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
PRESENT PRESENT
NAME AND TITLE BUSINESS ADDRESS PRINCIPAL OCCUPATION
- ------------------------- -------------------------- --------------------------------
<S> <C> <C>
J.A. Parke, Chairman and General Electric Capital Senior Vice President -
Chief Executive Officer Services, Inc. Finance, General Electric
260 Long Ridge Road Capital Services, Inc.
Stamford, CT 06927
J. Amble, Senior Vice General Electric Capital Vice President and Controller,
President Services, Inc. General Electric Capital
260 Long Ridge Road Services, Inc.
Stamford, CT 06927
N. E. Barton, Senior Vice General Electric Capital Senior Vice President, General
President and Secretary Services, Inc. Counsel and Secretary,
260 Long Ridge Road General Electric Capital
Stamford, CT 06927 Services, Inc.
Citizenship
-----------
All Executive Officers U.S.A.
</TABLE>
EXHIBIT 99.c
==============================================================================
SHARE PURCHASE AGREEMENT
By and Among
GENERAL ELECTRIC COMPANY
and
GENERAL ELECTRIC CAPITAL SERVICES, INC.,
As Seller,
and
PAINE WEBBER GROUP INC.,
As Purchaser
___________________________
Dated August 6, 1997
___________________________
===============================================================================
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT, dated August 6, 1997, by and among
GENERAL ELECTRIC CAPITAL SERVICES, INC. ("GECS"), GENERAL ELECTRIC COMPANY
("GE") and PAINE WEBBER GROUP INC. ("PWG").
R E C I T A L S :
A. GECS is the owner and holder of the KP & Co. Shares (as
hereinafter defined).
B. On the terms and subject to the conditions hereinafter set
forth, GECS desires to sell and PWG desires to purchase the KP & Co. Shares
for consideration consisting of (i) cash, (ii) the Purchase Money Note (as
hereinafter defined), (iii) the New PW Shares (as hereinafter defined) and
(iv) the Contingent Purchase Consideration (as hereinafter defined).
A G R E E M E N T :
The parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Definitions. (a) As used in this Agreement, unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Acquisition Transaction" means a tender offer or exchange offer
for PWG's common stock by a Person other than PWG or one or more of its
wholly-owned Subsidiaries, or a merger, consolidation or other business
combination involving PWG and one or more Persons other than PWG or one of its
wholly-owned Subsidiaries or a similar transaction or series of related
transactions that, in any case, results in holders of 50% or more of PWG's
common stock receiving consideration in exchange for such common stock having
a fair market value in excess of $36.50 per share.
"Administrative Services Agreement" means the administrative
services agreement dated the date hereof by and among GECC, KP & Co. and PWG,
as amended from time to time in accordance with the terms thereof.
"Affiliate" means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with") shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or by contract
or otherwise.
"Agreement" means this Share Purchase Agreement, as amended from
time to time in accordance with the terms hereof.
"Amended Stockholders Agreement" means the amended and restated
stockholders agreement, dated the date hereof, by and among PWG, GE, GECC,
GECS and Kidder, Peabody Group Inc.
"Asset Purchase Agreement" means the asset purchase agreement
dated as of October 17, 1994, between PWG, GE and Kidder, Peabody Group Inc.,
as amended from time to time in accordance with the terms thereof.
"Assumption Agreement" means the assumption agreement dated the
date hereof between GECS and KP & Co.
"Closing" has the meaning provided therefor in Section 2.1.3 of
this Agreement.
"Closing Balance Sheet" has the meaning provided in Section 3.1.8
hereof.
"Closing Date" means the actual date that the Closing occurs.
"Contingent Purchase Consideration" means an amount equal to the
product of (i) $219,000,000 and (ii) a fraction, the numerator of which is the
excess, if any, of (y) the amount equal to the sum of the cash portion, if
any, and the fair market value of the non-cash portion, if any, of the
consideration per share of PWG's common stock received by the stockholders of
PWG in connection with any Acquisition Transaction over (z) $36.50, and the
denominator of which is $36.50.
"Equity Distribution" means, in respect of any Person, (i) any
dividend or distribution on account of any equity securities of such Person,
(ii) any redemption, retirement, sinking fund or similar payment for or in
respect of the acquisition of any equity securities of such Person or (iii)
any payment made to retire or surrender options, warrants or other rights to
acquire equity securities of such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GECC" means General Electric Capital Corporation.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
"KP & Co." means Kidder, Peabody & Co. Incorporated.
"KP & Co. Shares" means all the outstanding shares of capital
stock of KP & Co., consisting of 100 shares of KP & Co. common stock.
"Lien" means, with respect to any asset, any mortgage, lien,
claim, option, pledge, encumbrance, charge or security interest of any kind in
or on such asset or the revenues or income therefrom.
"Litigation" means all civil, criminal, administrative,
regulatory, self-regulatory or other actions, suits, investigations,
arbitrations or other proceedings.
"Losses" means, in respect of any Person, all losses, liabilities,
claims, damages, penalties, fines, settlement payments, obligations to third
parties, costs or expenses (including legal, accounting, appraisal,
consulting, expert or similar fees and expenses) suffered or incurred by such
Person but only to the extent such Person has not received insurance proceeds
in respect thereof, increased to take account of any net Federal, State and
local tax cost incurred by such Person arising from the receipt or accrual of
indemnity payments hereunder (grossed up for such increase) and reduced by the
amount of any net Federal, State, and local tax benefit realized (both such
increase and such reduction using an assumed combined Federal, State and local
income tax rate equal to the highest Federal income tax rate applicable to
corporations plus 5%) by such Person or any Affiliate as a result of such
losses, liabilities, claims, damages, penalties, fines, settlement payments,
obligations to third parties, costs or expenses. For purposes of this
Agreement (except for Section 5.6), a tax benefit is deemed realized (at the
rate specified in the preceding sentence) in respect of an indemnified item at
the time the item is accrued for income tax purposes.
"New PW Shares" means 15,500,000 shares of common stock of PWG.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Purchase Money Note" means the promissory note in the principal
amount of $442,000,000 of PWG in the form of Exhibit A annexed hereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders Agreement" means the stockholders agreement dated
December 16, 1994 between PWG, GE and Kidder, Peabody Group Inc.
"Subsidiary" means, with respect to any Person, (i) a corporation,
whose capital stock with voting power, under ordinary circumstances, to elect
a majority of directors is at the time, directly or indirectly, owned by such
Person, by a Subsidiary of such Person or by such Person and a Subsidiary
thereof or (ii) any other Person (other than a corporation) controlled by such
Person in which such Person, a Subsidiary thereof or such Person and a
Subsidiary thereof, directly or indirectly, at the date of determination
thereof has at least a majority ownership interest.
(b) For purposes hereof, "including" means including, without
limitation.
ARTICLE II.
PURCHASE OF SHARES
2.1. Sale of KP & Co. Shares; the Closing.
2.1.1. Subject to the terms and conditions herein set forth,
on the Closing Date, (i) GECS shall sell, assign and transfer to PWG the KP &
Co. Shares and (ii) PWG shall issue to GECS the Purchase Money Note and the
New PW Shares, all of which New PW Shares shall be duly and validly issued,
fully paid and nonassessable, and pay to GECS immediately available funds in
the amount of $219,000,000 (the "Cash Consideration").
2.1.2. As additional consideration for the purchase and sale
herein contemplated, PWG agrees that, in the event that, at any time on or
prior to the first anniversary of the Closing Date, (i) PWG enters into a
definitive agreement, letter of intent or other understanding relating to the
terms of any Acquisition Transaction that is required to be disclosed pursuant
to the Federal securities laws or the rules of the New York Stock Exchange, or
(ii) any Person shall have commenced, or announced an intention to commence,
an Acquisition Transaction and, in either case, such Acquisition Transaction
is consummated within eighteen (18) months after the Closing Date, PWG shall
pay to GECS, simultaneously with the consummation of such Acquisition
Transaction, the Contingent Purchase Consideration in immediately available
funds. PWG shall not enter into an agreement or letter of intent with respect
to an Acquisition Transaction pursuant to which PWG will not be the ultimate
parent entity of the entity of which PWG is to be a part after consummation of
the Acquisition Transaction (the "Ultimate Parent Entity") unless such
agreement or letter of intent includes (i) an express acknowledgment by the
Ultimate Parent Entity of PWG's obligations under this Section 2.1.2 and (ii)
an irrevocable and unconditional guarantee by the Ultimate Parent Entity of
PWG's obligations under this Section 2.1.2. In the event of the consummation
of an Acquisition Transaction in respect of which PWG has not entered into an
agreement or letter of intent, the acquiring party in such Acquisition
Transaction, upon consummation thereof, shall be deemed to have made the
acknowledgment, and granted the guarantee, referred to in clauses (i) and (ii)
of the previous sentence.
2.1.3. The purchase and sale transaction herein contemplated
shall take place at a closing (the "Closing") to be held at the offices of
Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005, on the
first business day after the date on which all applicable waiting periods in
respect of the transactions contemplated by this Agreement under the HSR Act
shall have expired or been terminated. GECS and PWG agree to file the
applicable Notification and Report Forms under the HSR Act no later than
August 7, 1997 and to use their best efforts to ensure that the applicable
waiting period under the HSR Act expires or is terminated as promptly after
the date hereof as is possible.
2.1.4. Delivery of the KP & Co. Shares shall be made at the
Closing by delivery to PWG, against delivery of one or more certificates
evidencing the New PW Shares and payment of the Cash Consideration and
delivery of the Purchase Money Note, of stock certificates representing the KP
& Co. Shares duly endorsed, or accompanied by stock powers duly executed, by
GECS for transfer to PWG, with all appropriate stock transfer stamps attached
at GECS' expense.
2.1.5. Simultaneously with the execution and delivery of this
Agreement the parties are executing and delivering or causing to be executed
and delivered (i) the Amended Stockholders Agreement, (ii) the Administrative
Services Agreement and (iii) the Assumption Agreement, all of which shall
become effective without further action by any Person upon the occurrence of
the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of GE and GECS. GE and GECS
represent and warrant, as of the date hereof unless otherwise expressly set
forth below, as follows:
3.1.1. Organization and Good Standing. Each of GE and GECS
is a corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation.
3.1.2. Corporate Authorizations. Each of GE and GECS has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement. The execution and delivery by GE and GECS
of this Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered by GE and GECS.
3.1.3. The KP & Co. Shares. GECS has good and valid title to
the KP & Co. Shares, free and clear of any Liens. Assuming PWG has the
requisite power and authority to be the lawful owner of the KP & Co. Shares,
upon delivery to PWG at the Closing of certificates representing the KP & Co.
Shares, duly endorsed, or accompanied by stock powers duly executed, by GECS
for transfer to PWG, and upon GECS's receipt of the consideration provided for
in Section 2.1.1, good and valid title to the KP & Co. Shares will pass to
PWG, free and clear of any Liens other than those arising from acts of PWG or
its Affiliates. Other than this Agreement, the KP & Co. Shares are not
subject to any voting trust agreement or other contract, agreement,
arrangement, commitment or understanding, including any such contract,
agreement, arrangement, commitment or understanding restricting or otherwise
relating to the voting, dividend rights or disposition of the KP & Co. Shares.
3.1.4. Conflicting Agreements and Other Matters. Neither the
execution and delivery of this Agreement nor the consummation of the
transaction contemplated hereby will (i) violate any provision of any United
States Federal, State, local or foreign law, statute, rule or regulation, or
any order, judgment, injunction, decree, determination or award of any United
States Federal, State, local or foreign court or governmental or regulatory or
self-regulatory authority presently in effect having applicability to GE, GECS
or KP & Co. except such violations as will not individually, or in the
aggregate, have a material adverse effect upon the financial condition,
properties, assets, business or results of operation of KP & Co. or on the
ability of GE, GECS or KP & Co. to consummate the transaction contemplated by
this Agreement (a "KP & Co. Material Adverse Effect"), (ii) conflict with or
result in a breach of or constitute a default under the Certificate of
Incorporation or By-laws of GE, GECS or KP & Co., (iii) as of the Closing
Date, require any consent, approval or notice under, or conflict with or
result in a breach of or constitute a default under, any note, bond, mortgage,
license, indenture or loan or credit agreement, or any other agreement or
instrument, to which GE, GECS or KP & Co. is a party or by which any of their
respective properties is bound, except such consents, approvals, notices,
conflicts, breaches or defaults as will not have a KP & Co. Material Adverse
Effect.
3.1.5. Enforceability. This Agreement constitutes a legal,
valid and binding obligation of each of GE and GECS, enforceable against each
of GE and GECS in accordance with its terms.
3.1.6. Governmental Consents. As of the Closing Date no
authorization, consent, approval, waiver, license, qualification or formal
exemption from, nor any filing, declaration, qualification or registration
with, any court, governmental agency or regulatory authority or any securities
exchange will be required in connection with the execution, delivery or
performance by GE or GECS of this Agreement and the performance of their
respective obligations hereunder other than any of which if not made would not
individually, or in the aggregate, have a KP & Co. Material Adverse Effect.
3.1.7. Securities Act. GECS acknowledges that the New PW
Shares and the Purchase Money Note have not been registered under the
Securities Act and are being issued in reliance upon an exemption from
registration contained in the Securities Act. GECS is acquiring the New PW
Shares and the Purchase Money Note with no intention of distributing or
reselling the New PW Shares or the Purchase Money Note or any part of the New
PW Shares or the Purchase Money Note in any transaction which would be in
violation of the Securities Act.
3.1.8. Financial Condition. GECS has previously delivered to
PWG the unaudited balance sheet of KP & Co. as of July 31, 1997, as adjusted
to reflect the changes in the assets and liabilities of KP & Co. agreed by the
parties to occur on or prior to the Closing (the "Signing Balance Sheet"). At
the Closing, GECS will deliver to PWG an unaudited balance sheet of KP & Co.
as of the Closing Date (the "Closing Balance Sheet"). The Closing Balance
Sheet will reflect net book value (on the basis of presentation reflected in
the notes to the Signing Balance Sheet) not less than the net book value (on
the basis of presentation reflected in the notes to the Signing Balance Sheet)
on the Signing Balance Sheet (disregarding any changes in the value of the PWG
common stock held by KP & Co.), will include 21,500,000 shares of PWG common
stock and cash and cash equivalents not less than the cash and cash
equivalents on the Signing Balance Sheet and, except for changes occurring in
the ordinary course of business consistent with current practice of KP & Co.
between the date hereof and the Closing, will include only the assets and
liabilities included on the Signing Balance Sheet. Prior to the execution of
this Agreement, KP & Co. has sold in accordance with the terms of the
Stockholders Agreement all the preferred stock of PWG previously owned by it
to GECC for cash in the amount of $475,000,000, all of which cash (net of a
tax sharing payment of $47,000,000) is included on the Signing Balance Sheet.
3.1.9. Financial Statements; Undisclosed Liabilities. (i)
GECS has previously delivered to PWG (A) the unaudited balance sheet of KP &
Co. as of July 31, 1997 (the "July 31 Balance Sheet"), and (B) the unaudited
balance sheet of KP & Co. as of December 31, 1996 (the financial statements
described in clauses (A) and (B) above, together the "Financial Statements").
The Financial Statements have been, and the Closing Balance Sheet will be,
prepared in conformity with United States generally accepted accounting
principles consistently applied (except in each case as described in any notes
thereto, which in the case of the Closing Balance Sheet will include only
notes consistent with the notes to the Signing Balance Sheet) and on that
basis fairly present (subject to normal, recurring year-end audit adjustments)
the financial condition of KP & Co. as of the dates thereof.
(ii) KP & Co. does not have any material liabilities or
obligations of any nature (whether accrued, absolute, contingent, unasserted
or otherwise), except (1) as disclosed, reflected or reserved against in the
July 31 Balance Sheet and the notes thereto, (2) for liabilities and
obligations incurred in the ordinary course of business consistent with past
practice since the date of the July 31 Balance Sheet, and (3) for liabilities
and obligations with respect to Litigation against KP & Co. that is not
required by United States generally accepted accounting principles to be
reflected or reserved against on a balance sheet of KP & Co. or in the notes
thereto but is fully indemnified pursuant to Section 6.2 (it being understood
that matters to be funded out of the Pre-Tax Reserve (as hereinafter defined)
shall be deemed to be fully indemnified pursuant to Section 6.2).
(iii) Since the date of the July 31 Balance Sheet, there has not
been any material adverse change in the financial condition, properties,
assets or business of KP & Co.
3.1.10. Organization and Authority of KP & Co. KP & Co. is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. KP & Co. has all requisite corporate power and
authority to own its assets and carry on its business as presently conducted.
Other than Broad Street Advisors, Inc. (formerly known as Financial
Counselors, Inc.), KP & Co. has no Subsidiaries. Broad Street Advisors, Inc.
is wholly owned by KP & Co. and conducts no business other than that
contemplated in Section 3.02 of that certain Third Supplemental Agreement
dated as of January 27, 1995 among PWG, GE and Kidder, Peabody Group Inc. and,
as of the date hereof, GE and Kidder, Peabody Group Inc. have complied with
their obligations under such Section 3.02. KP & Co. is qualified to do
business in each jurisdiction where such qualification is required except
where the failure to be so qualified would not have a KP & Co. Material
Adverse Effect.
3.1.11. Capitalization of KP & Co. The KP & Co. Shares
constitute all the outstanding and issued shares of capital stock of KP & Co.
All such shares are duly and validly issued, fully paid and non-assessable and
are not subject to any preemptive rights of any Person. There are no (i)
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible or exchangeable into, shares of any capital stock or other equity
or voting securities of KP & Co., or contracts, commitments, understandings or
arrangements by which KP & Co. is or may become bound to issue additional
shares of its capital stock or other equity or voting securities or options,
warrants or rights to purchase or acquire any shares of its capital stock or
other equity or voting securities or (ii) voting trusts or other agreements or
understandings with respect to the voting or transfer of the capital stock of
KP & Co.
3.1.12. Litigation. Except as previously disclosed by GE or
GECS to PWG, GE and GECS do not have any reason to believe that KP & Co. is a
subject or target of any criminal investigation. GECS has previously
delivered to PWG a list of all the Litigations pending against KP & Co. as of
the date hereof (the "Litigation Letter"), which list also indicates all
material Litigations pending, or to the knowledge of GE or GECS threatened,
against KP & Co as of the date hereof.
3.1.13. Intercompany Agreements. As of the Closing, KP & Co.
is not a party to any tax sharing or other agreement with GE, GECS or any
Affiliate of GE or GECS, other than the Administrative Services Agreement, the
Assumption Agreement, a sublease relating to office space at 1251 Avenue of
the Americas, New York, New York and other agreements to which PWG is a party.
3.1.14. Investment Company, etc. KP & Co. is not required to
register under the Investment Company Act of 1940. KP & Co. is not, and is
not required to be, registered or otherwise qualified as a broker-dealer or
investment advisor or otherwise in any other regulated capacity under any
Federal, State, local or foreign law, statute, rule or regulation and is not a
member of any securities exchange or any self-regulatory organization.
Section 9(a) of the Investment Company Act of 1940 is not currently applicable
to and would not be applicable to KP & Co. if it were a broker-dealer or
investment adviser and there is no Litigation currently pending or, to the
knowledge of GE or GECS, threatened against KP & Co. which would subject KP &
Co. or, after the Closing, any Affiliate of PWG to the provisions of such
Section.
3.1.15. Taxes. Except as previously disclosed in writing by
GECS to PWG, to the knowledge of GECS: (i) all material tax returns,
statements, reports or forms ("Returns") required to be filed on or before the
Closing Date (including applicable extensions) by KP & Co. have been (or will
be) filed on or before the Closing Date in accordance with all applicable
laws, and such Returns are (or will be) complete and accurate in all material
respects, (ii) all taxes which were shown to be due on such Returns have been
(or will be) timely paid, (iii) KP & Co. is not delinquent in the payment of
any material tax, (iv) there are no material outstanding requests for rulings
or determinations in respect of any tax pending between KP & Co. and any
governmental authority (domestic or foreign) responsible for the imposition of
any tax ("Taxing Authority"), (v) there are no material Liens for taxes
(except for taxes not yet due) on any of the assets of KP & Co., and no action
has been instituted against KP & Co. that would reasonably result in any such
material Lien, (vi) no power of attorney has been executed by KP & Co. with
respect to any material matter relating to taxes which is currently in force,
and (vii) KP & Co. will not be required to recognize for tax purposes in a
taxable year beginning on or after the Closing Date any income or gain which
would otherwise have been required to be recognized under the accrual method
of accounting for tax purposes in a pre-Closing tax period as a result of KP &
Co., in a pre-Closing tax period (A) using the installment method of
accounting, (B) making a change in method of accounting, or (C) otherwise
deferring the recognition of income into a post-Closing tax period as a result
of the accounting method used in a pre-Closing tax period.
3.1.16. Reserves and Liabilities. At least $116,000,000 of
the costs and expenses comprising reserves or other liabilities on the Closing
Balance Sheet are of a type or character that are deductible for federal
income tax purposes to KP & Co. as of the Closing Date but for the fact that
as of the Closing Date all events have not occurred to determine the fact of
liability for such costs or expenses or to determine the amount thereof with
reasonable accuracy (or, with respect to deferred compensation, but for the
fact that no payment has been made). All events will occur to determine the
fact of liability for such $116,000,000 of costs and expenses and to determine
the amount thereof with reasonable accuracy (or, with respect to deferred
compensation, payment will be made) within five years after the Closing Date.
3.1.17. Litigation Reserve. Each of GE and GECS is familiar
with the activities, assets, liabilities, employees, properties, businesses
and operations, including any disposed of or ceased prior to the Closing, of
KP & Co. and the Litigation set forth in the Litigation Letter and has
carefully evaluated based on reasonably available information as of the date
hereof (x) the Litigation set forth in the Litigation Letter and (y) any
unasserted claims against KP & Co. of which GE or GECS has knowledge or reason
to know. Based on such familiarity and evaluation, in the judgment of the
management of GE and GECS, taking into account the number, variety and status
of the actions, suits, investigations, arbitrations and other proceedings
included in the Litigation set forth in the Litigation Letter and any such
unasserted claims, many of which are at very preliminary stages, and
recognizing the uncertainties of litigation generally, the $90,000,000 Pre-Tax
Reserve is a reasonable estimate of the amount that is likely to be sufficient
to resolve such Litigation and any such unasserted claims (including any
related costs and expenses of the defense thereof).
3.1.18. Miscellaneous Assets. The assets of KP & Co.
described as "miscellaneous assets" in the Closing Balance Sheet have a tax
basis equal to or greater than $14,000,000.
3.2. Representations and Warranties of PWG. PWG represents and
warrants, as of the date hereof unless otherwise expressly set forth below, as
follows:
3.2.1. Organization and Good Standing. PWG is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. PWG has all requisite corporate power and
authority to own its assets and to carry on its businesses as presently
conducted.
3.2.2. Corporate Authorizations. PWG has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement. The execution and delivery by PWG of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action. This Agreement has been
duly executed and delivered by PWG.
3.2.3. The New PW Shares. Assuming GECS has the requisite
power and authority to be the lawful owner of the New PW Shares, upon delivery
to GECS at the Closing of certificates representing the New PW Shares, and
upon PWG's receipt of the consideration provided for in Section 2.1.1, good
and valid title to the New PW Shares will pass to GECS, free and clear of any
Liens other than those arising from acts of GECS or its Affiliates.
3.2.4. Conflicting Agreements and Other Matters. Neither the
execution and delivery of this Agreement nor the consummation of the
transaction contemplated hereby will (i) violate any provision of any United
States Federal, State, local or foreign law, statute, rule or regulation, or
any order, judgment, injunction, decree, determination or award of any United
States Federal, State, local or foreign court or governmental or regulatory or
self-regulatory authority presently in effect having applicability to PWG
except such violations as will not individually, or in the aggregate, have a
material adverse effect upon its financial condition, properties, assets,
business or results of operation or on the ability of PWG to consummate the
transaction contemplated by this Agreement (a "PWG Material Adverse Effect"),
(ii) conflict with or result in a breach of or constitute a default under the
Certificate of Incorporation or By-laws of PWG, or (iii) as of the Closing
Date, require any consent, approval or notice under, or conflict with or
result in a breach of or constitute a default under, any note, bond, mortgage,
license, indenture or loan or credit agreement, or any other agreement or
instrument, to which PWG is a party or by which any of its properties is
bound, except such consents, approvals, notices, conflicts, breaches or
defaults as will not have a PWG Material Adverse Effect.
3.2.5. Enforceability. This Agreement constitutes a legal,
valid and binding obligation of PWG, enforceable against PWG in accordance
with its terms.
3.2.6. Governmental Consents. As of the Closing Date no
authorization, consent, approval, waiver, license, qualification or formal
exemption from, nor any filing, declaration, qualification or registration
with, any court, governmental agency or regulatory authority or any securities
exchange will be required in connection with the execution, delivery or
performance by PWG of this Agreement and the performance of its obligations
hereunder other than any of which if not made would not, individually or in
the aggregate, have a PWG Material Adverse Effect.
3.2.7. No Liquidation. As of the date hereof PWG has, and as
of the Closing Date PWG will have, no plan or intention to dissolve or
liquidate KP & Co. or to cause or permit it to make any Equity Distribution.
3.2.8. Securities Act. PWG acknowledges that the KP & Co.
Shares have not been registered under the Securities Act and are being sold in
reliance upon an exemption from registration contained in the Securities Act.
PWG is acquiring the KP & Co. Shares with no intention of distributing or
reselling the KP & Co. Shares or any part of the KP & Co. Shares in any
transaction which would be in violation of the Securities Act.
ARTICLE IV.
CONDITIONS PRECEDENT TO CLOSING
4.1. Conditions Precedent to Obligations of PWG. The obligation
of PWG to consummate the transaction contemplated herein is subject, at the
Closing Date, to the prior or simultaneous satisfaction or waiver of the
following conditions:
4.1.1. The transaction contemplated by this Agreement shall
not be prohibited or enjoined (temporarily or permanently) by any applicable
judicial action, law or governmental regulation.
4.1.2. All applicable waiting periods in respect of the
transaction contemplated by this Agreement under the HSR Act shall have
expired or been terminated.
4.2. Conditions Precedent to Obligations of GECS. The obligation
of GECS to consummate the transaction contemplated herein is subject to the
prior or simultaneous satisfaction or waiver of the following conditions:
4.2.1. The transaction contemplated by this Agreement shall
not be prohibited or enjoined (temporarily or permanently) by any applicable
judicial action, law or governmental regulation.
4.2.2. All applicable waiting periods in respect of the
transaction contemplated by this Agreement under the HSR Act shall have
expired or been terminated.
ARTICLE V.
COVENANTS
5.1. Access to Records. On and after the Closing Date, without
waiving any applicable privileges, including the attorney-client privilege,
each party shall provide to the other party and its agents reasonable access
to the books and records of KP & Co. in its possession that such party may
need to file or defend tax returns or other tax or regulatory filings made or
filed in respect of periods prior to the Closing Date, to prepare financial
statements and for any other valid business purposes.
5.2. Maintenance of Existence. PWG shall not cause or permit KP
& Co. to make any Equity Distribution and shall cause KP & Co. to maintain its
corporate existence, in each case, until the earlier of (i) the occurrence of
the second anniversary of the Closing Date and (ii) the date that
substantially all Litigations currently pending against KP & Co. and any
related claims are resolved, through settlement or otherwise.
5.3. Ordinary Course. From the date of this Agreement through
the Closing, GE and GECS shall cause KP & Co. to operate only in the
ordinary course of business consistent with current practice and shall not
permit KP & Co. to make (i) any Equity Distribution or (ii) any change in
its assets or liabilities reflected on the Signing Balance Sheet which, in
either case, would cause any representation and warranty of GE and GECS
herein to be untrue as of the Closing Date as if made as of such date.
Until Closing, GE and GECS shall not permit KP & Co. to effect any transfer
of the PWG common stock currently held by KP & Co. pursuant to Section
4.02(a)(i) of the Stockholders Agreement.
5.4. Miscellaneous Assets. In the event that the assets of KP &
Co. described as "miscellaneous assets" in the Closing Balance Sheet shall not
have been liquidated or otherwise realized for cash in at least the amount of
$15,500,000, net after related costs and expenses for collection or otherwise,
within eighteen months after the Closing Date, GECS shall pay to KP & Co. on
the date eighteen months following the Closing Date in immediately available
funds the difference between $15,500,000 and the actual amount of cash then
realized in respect of such assets. Without in any way affecting the
obligations of GECS under the immediately preceding sentence, the manner and
timing of the procedure of collection of such miscellaneous assets shall be as
mutually agreed by the parties.
5.5. Employees. PWG agrees that the 13 current KP & Co.
employees will initially remain employees of KP & Co. and that such 13 current
employees, and such additional employees as may be hired by KP & Co. from time
to time, will be placed on PWG payroll and pension and benefit plans generally
available to similarly situated PWG employees (with the exception of any PWG
severance or layoff plan), without regard to preexisting conditions. Prior to
the Closing, GECS will negotiate on behalf of KP & Co. in good faith
appropriate amendments to the existing letter agreements between KP & Co. and
its current employees to reflect the changed circumstances resulting from the
purchase of the capital stock of KP & Co. GECS agrees that the amendments to
such letter agreements will not increase any obligations or liabilities of
KP & Co. under such letter agreements and GECS on behalf of KP & Co. will
make any payments to such employees or any other Person in connection with
or arising as a result of such amendments. PWG agrees not to terminate any
of the 13 current KP & Co. employees prior to December 31, 1997 without the
consent of GECS, which consent will not be unreasonably withheld. PWG
agrees at the end of any employment term of an employee pursuant to the
terms of the letter agreement with respect to such employee, such employee
will become an employee at will of KP & Co. or on such other terms as PWG
may approve.
5.6. Certain Tax Benefits. So long as there is a reasonable
basis to do so, PWG will claim on its Federal, State and local income tax
returns for all tax periods ending on or before the tenth anniversary of the
Closing Date a deduction in respect of any payment made by GECS of the
Liabilities of the type described in the Assumption Agreement, and (at the
sole cost of GECS in a manner reasonably acceptable to PWG) will pursue such
claim with reasonable diligence. For periods ending after the tenth
anniversary of the Closing Date, PWG shall claim such deductions unless PWG in
its sole judgment determines it is burdensome to do so. GE and GECS agree to
provide PWG in a reasonable and timely manner with all information, records
and cooperation necessary to claim such deductions and pursue such claims.
In the event that PWG is allowed such deduction, it shall pay the actual
resulting tax benefit to GECS as an increase in the purchase price under
this Agreement. The determination of the amount of the tax benefit to PWG
shall be conclusive absent manifest error.
ARTICLE VI.
SURVIVAL AND INDEMNIFICATION
6.1. Survival of Agreements. The representations, warranties and
covenants of each party hereto shall survive the Closing.
6.2. Indemnification by GE and GECS. GE and GECS, jointly and
severally, will indemnify PWG, KP & Co., each of their respective Affiliates
and each of their respective officers, directors, employees, stockholders,
agents and representatives against and hold each of them harmless from,
without duplication, any and all Losses suffered or incurred by any such
indemnified party arising from, relating to or otherwise in respect of (i) the
breach or incorrectness of, or non-compliance with, any representation,
warranty, covenant or agreement of GE or GECS in this Agreement, (ii) any (a)
taxes incurred by KP & Co. with respect to periods ending prior to the Closing
Date and with respect to the portion ending prior to the Closing Date of any
period that begins before and ends on or after the Closing Date (a "Straddle
Period"), (b) taxes incurred prior to the Closing Date by any person which was
affiliated with KP & Co. prior to the Closing Date or with which KP & Co.
joined prior to the Closing Date (or was required to join) in filing any
consolidated, combined, unitary or aggregate return, prior to the Closing Date
(as a result of Treasury Regulation Section 1.1502-6(a) or otherwise), (c)
taxes incurred by KP & Co. attributable to the dividend or transfer of any
assets to GECS or any of its Affiliates prior to the sale of the capital
stock of KP & Co. or (d) taxes incurred by KP & Co. arising (directly or
indirectly) as a result of the recognition by GECS, KP & Co., or any other
Affiliate of any "deferred intercompany gain" or "excess loss account", in
each case within the meaning of Treasury Regulations adopted under Section
1502 of the Internal Revenue Code, (iii) any Litigation pending or threatened
against KP & Co. as of the Closing (whether or not set forth in the Litigation
Letter), (iv) (A) the employment or termination of employment of any employee
of KP & Co. (including any claim or Litigation brought against KP & Co., PWG
or any of its Affiliates in connection therewith) to the extent such employee
is actually engaged in activities relating to KP & Co.'s Litigation or the
activities, assets, liabilities, properties, business or operations of KP &
Co. being conducted as of the Closing by KP & Co., that were disposed of or
ceased by KP & Co. on or prior to the Closing or were in existence or being
pursued by KP & Co. on or prior to the Closing, or (B) any actions or
omissions by any such employee or any compensation paid or benefits provided
to any such employee, (v) any liabilities or obligations disclosed, reflected
or reserved against in the Closing Balance Sheet and the notes thereto, (vi)
any actions or omissions by or on behalf of GECC or any of its Affiliates
pursuant to the Administrative Services Agreement, or (vii) any obligation or
liability of whatever kind or nature, primary or secondary, direct or
indirect, absolute or contingent, known or unknown, whether or not accrued,
whether arising before, at or after the Closing, or any claim or Litigation,
in any such case that arises out of, relates to or is otherwise in respect of
KP & Co. or any of its activities or assets, liabilities, employees,
properties, businesses or operations, including any disposed of or ceased
prior to the Closing, but excluding, in the case of clause (vii) of this
Section 6.2 only, (A) any and all matters as to which PWG is obligated to
indemnify GECS under clause (ii) or (iii) of Section 6.3 hereof and (B) any
liabilities to the extent expressly assumed by PWG under the Asset Purchase
Agreement. It is understood that the first $90,000,000 of Losses (determined
without regard to the provisions of the definition of "Losses" relating to any
net tax cost or benefit) which otherwise would be subject to indemnification
by GE and GECS under clause (iii) of this Section 6.2 will instead be funded
from the cash "prefunded pre-tax contingencies" reserve of KP & Co. (the
"Pre-Tax Reserve") included in the Signing Balance Sheet and the Closing
Balance Sheet and GE and GECS will not be obligated to make any cash
payment in respect thereof. It is further understood that the first
$15,600,000 of Losses which otherwise would be subject to indemnification
by GE and GECS under clause (iv) (but only to the extent that it relates
to compensation paid or benefits provided to any such employee) and clauses
(v) and (vii) of this Section 6.2 in respect of "PW Broker Payments" of
deferred production bonuses or operating and other miscellaneous costs of
KP & Co. will instead be funded from the cash "pre-funded after-tax
contingencies" reserve of KP & Co. included in the Signing Balance Sheet
and the Closing Balance Sheet and GE and GECS will not be obligated to make
any cash payment in respect thereof. It is understood that the foregoing
provisions of the two immediately preceding sentences shall not limit in
any manner GE's and GECS' obligations under the other Sections of this
Article VI and that matters to be funded out of such reserves shall be
deemed to be indemnified matters pursuant to this Section 6.2. For
purposes of this Agreement, income, deductions, and other items arising in
a Straddle Period shall be allocated between the portion thereof ending
prior to the Closing Date and the remaining portion based on an actual
closing of the books of KP & Co. on the day prior to the Closing Date,
provided that if the Closing occurs on a date other than the first day of a
fiscal month, then income, deductions and other items for such month (other
than amounts attributable to transactions not in the ordinary course of
business) will be prorated on a daily basis. PWG will cause KP & Co. to
pay over to GECS, promptly upon receipt by KP & Co. or any Affiliate, the
amounts of any refunds of taxes (and related interest) with respect to
periods ending prior to the Closing Date or with respect to the portions
ending prior to the Closing Date of any Straddle Periods. Notwithstanding
the foregoing, KP & Co. shall not pay over to GE or GECS any refund of
taxes attributable to the carryback from a taxable period beginning after
the Closing Date (or the portion of a Straddle Period that begins on the
Closing Date) of items of loss, deduction or credit, or other tax items, of
KP & Co. arising from items indemnified by GE and GECS under the Pre-Tax
Reserve or $15,600,000 reserve described above.
6.3. Indemnification by PWG. PWG shall indemnify and hold
harmless GE, GECS, each of their respective Affiliates (excluding KP & Co.)
and each of their respective officers, directors, employees, stockholders,
agents and representatives against and hold each of them harmless from,
without duplication, any and all Losses suffered or incurred by such Person
arising from, relating to or otherwise in respect of (i) the breach or
incorrectness of, or non-compliance with, any representation, warranty,
covenant or agreement of PWG in this Agreement, (ii) liabilities of KP & Co.
that both (a) arise out of actions taken by PWG, KP & Co., any of their
respective Affiliates or any of their respective officers, directors,
employees, agents or representatives (collectively, the "PWG Entities") (it
being understood that actions taken by or on behalf of any Person (other than
PWG or KP & Co.) pursuant to the Administrative Services Agreement shall not
be deemed actions of any of the PWG Entities for any purpose of this
Agreement) after the Closing other than at the request or with the consent of
GE or one of its Affiliates and other than actions taken in the ordinary
course of conducting the activities, businesses or operations of KP & Co.
being conducted as of the Closing by KP & Co. where such actions do not
constitute gross negligence or willful misconduct, and (b) do not relate to,
and have not arisen as a result of, directly or indirectly, activities,
assets, liabilities, employees, properties, businesses or operations of KP &
Co. that (1) were disposed of or ceased by KP & Co. on or prior to the Closing
or (2) were in existence or were being pursued by KP & Co. on or prior to
the Closing, and (iii) taxes incurred by KP & Co. with respect to periods
beginning on or after the Closing Date and with respect to the portion
beginning on the Closing Date of any Straddle Period.
6.4. Adjustment to Purchase Price. The parties intend that any
payment pursuant to Section 6.2 or 6.3 (and any other payment that may be made
between the parties after the Closing Date arising from this Agreement) will
be treated as an adjustment to purchase price. Neither party will take any
position inconsistent with such treatment for income tax purposes.
6.5. Notice and Copies of Third Party Claims. For purposes of
this Agreement, "Third Party Claim" means (i) any Litigation pending or
threatened against KP & Co. or Broad Street Advisors, Inc. as of the Closing
(whether or not listed in the Litigation Letter) and (ii) any Litigation or
other claim or demand commenced or made by any Person against a party (an
"indemnified party") who is entitled to any indemnification provided for under
this Agreement in respect of, arising out of or involving such Litigation,
claim or demand, whether such Litigation, claim or demand is commenced or made
before, on or after the Closing. An indemnified party will notify the
indemnifying party in writing of any Third Party Claim commenced or made
against such indemnified party after the Closing with reasonable promptness;
provided, however, that the failure to give such notice shall not affect the
indemnification hereunder except to the extent the indemnifying party shall
have been actually materially prejudiced as a result of such failure.
Thereafter, the indemnified party shall deliver to the indemnifying party,
reasonably promptly after the indemnified party's receipt thereof, copies of
all notices and documents (including court papers) received by the indemnified
party relating to the Third Party Claim, other than notices and documents
(including court papers) separately addressed to the indemnifying party;
provided, however, that the failure to deliver any such notice or document
shall not affect the indemnification provided hereunder except to the extent
the indemnifying party shall have been actually materially prejudiced as a
result of such failure.
6.6. Procedures Relating to Indemnification. If a Third Party
Claim is made against an indemnified party, the indemnifying party shall be
entitled to participate in the defense thereof and, if it so chooses, at
its sole cost and upon written notice to the indemnified party
acknowledging its obligation to indemnify the indemnified party therefor in
accordance with the terms of this Agreement, to assume the defense thereof
with counsel selected by the indemnifying party; provided, however, that
such counsel is reasonably satisfactory to the indemnified party. GE and
GECS hereby acknowledge their obligation to indemnify the indemnified
parties under Section 6.2 in respect of the Litigation listed in the
Litigation Letter in accordance with the terms of this Agreement and,
subject to any limitations set forth in this Article VI, GE and GECS intend
to continue to defend against all such Litigation. GE and GECS shall be
obligated to assume the defense of the Litigation listed in the Litigation
Letter and all other Third Party Claims subject to indemnification pursuant
to Section 6.2, except as to any such Litigation or Third Party Claims as
to which PWG advises GE and GECS that PWG has elected not to permit GE and
GECS to assume such defense pursuant to PWG's rights under this Article VI.
Should the indemnifying party so elect to assume the defense of a
Third Party Claim, the indemnifying party shall not be liable to the
indemnified party for legal expenses subsequently incurred by the indemnified
party in connection with the defense thereof, provided, however, that (i) if
the indemnifying party assumes such defense, the indemnified party shall have
the right to participate in the defense thereof and to employ counsel, at its
own expense, separate from the counsel employed by the indemnifying party, it
being understood that the indemnifying party shall control such defense and
(ii) the indemnified party shall be entitled to employ separate counsel, at
the expense of the indemnifying party, and to participate in the defense of
such Third Party Claim if in the opinion of counsel to such indemnified party
a conflict or potential conflict (including as to the availability of
defenses) exists between such indemnified party and the indemnifying party
that would make such separate representation advisable (provided that the
indemnifying party shall only be responsible under this clause (ii) for the
fees of one counsel in each relevant jurisdiction for all indemnified
parties). The indemnifying party shall be liable for the fees and expenses of
counsel employed by the indemnified party for any period during which the
indemnifying party has failed to assume the defense thereof.
If the indemnifying party so elects to assume the defense of any
Third Party Claim, the indemnified parties shall cooperate with the
indemnifying party in the defense thereof. Such cooperation shall include the
retention and (upon the indemnifying party's reasonable request) the provision
to the indemnifying party of records and information of KP & Co. that are
relevant to such Third Party Claim and that are in the possession of such
indemnified party. Such cooperation shall not include the making available of
any current employee of PWG or any of its Subsidiaries (other than KP & Co.),
other than any such employee who has already entered into a cooperation
agreement with respect to Litigation involving KP & Co. prior to the date
hereof. In addition, if the indemnifying party so elects to assume the
defense of any Third Party Claim, the indemnifying party shall (i) consult
with the indemnified parties to determine litigation strategies, including the
selection of the appropriate forum and determination to interpose defenses or
to raise counterclaims, (ii) promptly advise the indemnified parties of all
material developments in respect of each significant claim as they occur,
(iii) consider in good faith all reasonable requests that the indemnified
parties may make concerning the conduct of any such defenses or counterclaims.
With respect to indemnification under Section 6.2 where GE or GECS has assumed
the defense of any Third Party Claim, upon request of GE or GECS, PWG will
cause KP & Co. to permit GE and GECS to assert any rights of KP & Co. which
arose prior to the Closing or derived from the same facts or circumstances
giving rise to such Third Party Claim and which may be the basis for a
counterclaim or defense of such Third Party Claim.
If the indemnifying party shall have assumed the defense of a
Third Party Claim, the indemnified party shall agree to any settlement,
compromise or discharge of a Third Party Claim which the indemnifying party
may recommend and which by its terms obligates the indemnifying party to pay
the full amount required to be paid under this Article VI by the indemnifying
party in respect of such Third Party Claim (which payment shall be made
contemporaneously with the indemnified party's agreement to such settlement,
compromise or discharge), which releases the indemnified party completely in
connection with such Third Party Claim and which would not otherwise adversely
affect (other than to a de minimis degree) the indemnified party. The
indemnified party shall not admit any liability with respect to, or settle,
compromise or discharge, any Third Party Claim the defense of which shall have
been assumed by the indemnifying party in accordance with the terms hereof
without the indemnifying party's prior written consent (which consent shall
not be unreasonably withheld). The indemnified party shall have the right to
admit any liability with respect to, or settle, compromise or discharge, any
Third Party Claim the defense of which shall not have been assumed by the
indemnifying party.
Notwithstanding the foregoing, the indemnifying party shall not be
entitled to assume the defense of any Third Party Claim (but shall be liable
for the fees and expenses of counsel incurred by the indemnified party in
defending such Third Party Claim) if the Third Party Claim seeks relief which,
if granted, would impose on the indemnified parties non-monetary obligations or
penalties. If such non-monetary relief portion of the Third Party Claim can
be separated from that for money damages, the indemnifying party shall be
entitled to assume the defense of the portion relating to money damages. In
conducting the defense of any Third Party Claim where non-monetary and
monetary relief cannot be separated, the indemnified parties shall promptly
advise the indemnifying parties of all material developments in respect of
such Third Party Claim as they occur. The indemnification required by
Sections 6.2 and 6.3 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or Losses are incurred. The indemnifying party shall pay to the
indemnified party or its designee amounts owing under this Article VI in
respect of any bills, judgments and other matters sufficiently in advance for
the indemnified party to make timely payments thereof.
6.7. Other Claims. In the event any indemnified party should
have a claim for indemnity against any indemnifying party under Section 6.2 or
6.3 that does not involve a Third Party Claim being asserted against or sought
to be collected from such indemnified party, the indemnified party shall
deliver notice of such claim with reasonable promptness to the indemnifying
party. The failure by any indemnified party so to notify the indemnifying
party shall not relieve the indemnifying party from any liability which it may
have to such indemnified party under Section 6.2 or 6.3. If the indemnifying
party does not notify the indemnified party within 20 calendar days following
its receipt of such notice that the indemnifying party disputes its liability
to the indemnified party under Section 6.2 or 6.3, such claim specified by the
indemnified party in such notice shall be conclusively deemed a liability of
the indemnifying party under Section 6.2 or 6.3 and the indemnifying party
shall pay the amount of such liability to the indemnified party on demand or,
in the case of any notice in which the amount of the claim (or any portion
thereof) is estimated, on such later date when the amount of such claim (or
such portion thereof) becomes finally determined. If the indemnifying party
has timely disputed its liability with respect to such claim, as provided
above, the indemnifying party and the indemnified party shall proceed in good
faith to negotiate a resolution of such dispute and, if not resolved through
negotiations, such dispute shall be resolved by litigation in an appropriate
court of competent jurisdiction.
6.8. Burden of Proof. In the event of any dispute as to any
indemnification claimed by an indemnified party under Section 6.2, the
indemnified party shall be presumed to be entitled to indemnification under
Section 6.2 in the amount claimed and the burden of proof shall be on the
indemnifying party to establish that the indemnified party is not entitled to
indemnification under Section 6.2, or that the amount claimed is not correct,
and pending resolution of such dispute the indemnifying party shall pay the
indemnified party the amount claimed within five (5) business days of receipt
of the indemnified party's demand for payment.
6.9. Period of Indemnity. The indemnities set forth in clause
(ii) of Section 6.2 and clause (iii) of Section 6.3 shall expire six (6)
months after the running of the relevant statute of limitations. All other
indemnities set forth in Sections 6.2 and 6.3 shall not expire until performed
in full.
6.10. Damages. Any and all monetary recoveries for any
breach or incorrectness of, or non-compliance with, any representation,
warranty, covenant or agreement hereunder, if payable based on a claim pursued
under any Article herein other than this Article VI, shall be limited to the
amount that would have been payable if such claim had been pursued under this
Article VI.
6.11. Reference. All references to KP & Co. in Sections 6.2
and 6.3 of this Article VI shall include Broad Street Advisors, Inc.
ARTICLE VII.
MISCELLANEOUS
7.1. No Waiver; Modifications in Writing. No failure or delay on
the part of GE, GECS or PWG in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided
for herein are cumulative and, except as otherwise provided in Section 6.10 or
Section 7.9, are not exclusive of any remedies that may be available to GE,
GECS or PWG at law or in equity. No waiver of or consent to any departure by
GE, GECS or PWG from any provision of this Agreement shall be effective unless
signed in writing by the party entitled to the benefit thereof. No amendment,
modification or termination of any provision of this Agreement shall be
effective unless signed in writing by or on behalf of GECS and PWG. Any
amendment, supplement or modification of or to any of this Agreement, any
waiver of any provision of this Agreement, and any consent to any departure
from the terms of any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which made or given.
7.2. Notices. All notices and demands provided for hereunder
shall be in writing, and shall be given by registered or certified mail,
return receipt requested, telecopy, courier service or personal delivery, and,
if to PWG, addressed to PWG at:
1285 Avenue of the Americas
New York, New York 10019
Attention: General Counsel
Telecopy: 212-713-2114
(with copies to):
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention: Peter S. Wilson
Telecopy: 212-474-3700
or to such other address as PWG may designate to GECS in writing and, if to GE
or GECS, addressed to GECS at:
260 Long Ridge Road
Stamford, CT 06927
Attention: General Counsel
Telecopy: 203-373-3365
with copies to:
General Electric Company
3135 Easton Turnpike
Fairfield, Connecticut 06431
Attention: Senior Counsel for Transactions
Telecopy: 202-373-3008
Cahill Gordon & Reindel
Eighty Pine Street
New York, New York 10005
Attention: Richard J. Sabella
Telecopy: 212-269-5420
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: John Knight
Telecopy: 212-450-4800
or to such other address as GECS may designate to PWG in writing. All such
notices, demands and other communications shall be deemed to have been duly
given: at the time of delivery by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
7.3. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered,
shall be deemed to be an original and all of which counterparts, taken
together, shall constitute but one and the same Agreement.
7.4. Binding Effect; Assignment. This Agreement and the rights
and obligations of GE, GECS or PWG may not be assigned (except by operation of
law pursuant to a merger or otherwise) to any other Person except with the
prior written consent of the other parties hereto. Except as expressly
provided in Article VI, this Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement,
and their respective successors and permitted assigns. This Agreement shall
be binding upon the parties hereto, and their respective successors and
permitted assigns.
7.5. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
7.6. Severability of Provisions. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
7.7. Headings. The Article and Section headings used or
contained in this Agreement are for convenience of reference only and shall
not affect the construction of this Agreement.
7.8. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement or any other document or instrument
contemplated hereby, or where any provision hereof is validly asserted as a
defense, the successful party shall be entitled to recover attorneys' fees in
addition to any other available remedy.
7.9. Entire Agreement. (a) This Agreement, together with the
Amended Stockholders Agreement, the Purchase Money Note, the Administrative
Services Agreement and the Assumption Agreement, constitute the entire
agreement among the parties with respect to the transactions contemplated
herein and there are no promises or undertakings with respect thereto relative
to the subject matter hereof not expressly set forth or referred to herein.
Except as provided below, the Asset Purchase Agreement and related documents
(other than, upon consummation of the transactions contemplated hereby, the
Stockholders Agreement) shall continue in full force and effect in accordance
with their respective terms.
(b) Notwithstanding anything in this Agreement or the Asset
Purchase Agreement to the contrary, the parties hereto agree as follows:
(i) from and after the Closing Date, KP & Co. and Broad
Street Advisors, Inc. shall be considered and treated as Purchaser
Indemnitees (as defined in the Asset Purchase Agreement) for any
purpose under the Asset Purchase Agreement;
(ii) none of the Purchaser Indemnitees may seek indemnity
under the Asset Purchase Agreement with respect to (A) any claim
that gives rise to any Losses to the extent such Losses are Losses
for which GE and GECS would otherwise be obligated to provide
indemnification under Section 6.2 and have been funded as part of
the Pre-Tax Reserve or the "pre-funded after-tax contingencies"
reserve included in the Signing Balance Sheet (or would be so
funded if any indemnity claim was made under Section 6.2) or (B)
any matter to the extent PWG would be obligated to provide
indemnification under Section 6.3 in respect of such matter
(whether or not any of the indemnified parties under Section 6.3
have incurred or suffered any Loss with respect thereto); and
(iii) for each case where any of PWG, KP & Co., or their
respective Affiliates, officers, directors, employees,
stockholders, agents or representatives is entitled to
indemnification in respect of any Litigation, claim or matter
under both this Agreement and the Asset Purchase Agreement, to the
extent that the amount of such indemnification (determined without
regard to the amount and timing of the effect of any related tax
cost or benefit) available under the Asset Purchase Agreement does
not exceed the amount of such indemnification (as so determined)
available under the provisions of this Agreement, (A) any
indemnification payment in respect of such Litigation, claim or
matter will be made, and the amount and timing of the effect of
any related tax cost or benefit will be determined, under the
provisions of this Agreement, (B) any such indemnification payment
made in respect of such Litigation, claim or matter will be
treated as a purchase price adjustment under Section 6.4 of this
Agreement, and (C) all procedural matters relating to such right
of indemnification (including all matters relating to notice,
contest rights and burden of proof) will be determined under the
provisions of this Agreement; provided, however, that if PWG so
elects in writing within sixty days after giving notice in respect
of such Litigation, claim or matter, all such procedural matters
will be governed by the provisions of the Asset Purchase
Agreement. For purposes of the preceding sentence, any
entitlement to money damages shall be treated as an entitlement to
indemnification.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date first above written.
GENERAL ELECTRIC CAPITAL SERVICES, INC.
By: /s/ Joan Amble
---------------------------------------
Name: Joan Amble
Title: Vice President and Controller
GENERAL ELECTRIC COMPANY
By: /s/ Pamela Daley
---------------------------------------
Name: Pamela Daley
Title: Vice President and Senior
Counsel for Transactions
PAINE WEBBER GROUP INC.
By: /s/ F. Daniel Corkery
---------------------------------------
Name: F. Daniel Corkery
Title: Senior Vice President and
Senior Associate General
Counsel
EXHIBIT A TO
SHARE PURCHASE
AGREEMENT
--------------
PURCHASE MONEY PROMISSORY NOTE
------------------------------
US$442,000,000 August __, 1997
FOR VALUE RECEIVED, Paine Webber Group Inc. (the "Borrower") hereby
promises to pay to the order of General Electric Capital Services, Inc. (the
"Lender") at 260 Long Ridge Road, Stamford CT 06927 on the fifteenth day
following the date hereof the principal amount of US$442,000,000, with
interest thereon from and including the date hereof to but excluding the date
all amounts payable hereunder are paid in full at the rate of 5.75% per annum
and calculated based on the exact number of days elapsed on the basis of a 360
day year. Payment of principal and interest shall be made by wire transfer of
immediately available funds to an account designated by the Lender.
The Borrower may, at its option, at any time and from time to time,
without premium or penalty of any kind, prepay in whole or in part this Note.
The Borrower hereby waives presentment for payment, protest, notice of
protect, and notice of nonpayment of this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
PAINE WEBBER GROUP INC.
By:
------------------------
Name:
Title:
EXHIBIT 99.d
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
dated August 6, 1997
between
Paine Webber Group Inc.,
General Electric Company,
General Electric Capital Corporation,
General Electric Capital Services, Inc. and
Kidder, Peabody Group Inc.
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.1. Definitions................................ 1
ARTICLE 2
Representations and Warranties
Section 2.1. Representations and Warranties............. 4
ARTICLE 3
Standstill and Voting Provisions
Section 3.1. Restrictions of Certain Actions by
Shareholder.............................. 4
Section 3.2. Board Representation....................... 6
Section 3.3. Voting..................................... 6
ARTICLE 4
Transfer Restrictions
Section 4.1. Restrictions of Transfer................... 7
Section 4.2. Permitted Transfers........................ 7
Section 4.3. Company Call Right......................... 8
Section 4.4. Right of First Refusal..................... 10
Section 4.5. Assignment................................. 11
ARTICLE 5
Registration Rights
Section 5.1. Registration upon Request.................. 11
Section 5.2. Incidental Registration Rights............. 13
Section 5.3. Broad Public Distribution; Lead Manager.... 14
Section 5.4. Registration Mechanics..................... 14
Section 5.5. Expenses................................... 17
Section 5.6. Indemnification and Contribution........... 17
Section 5.7. Underwriting Agreement..................... 20
ARTICLE 6
Shareholder Purchase Rights
Section 6.1. Shareholder Purchase Rights................ 21
ARTICLE 7
Miscellaneous
Section 7.1. Termination............................... 22
Section 7.2. Financial Services Group.................. 22
Section 7.3. Legend.................................... 22
Section 7.4. Specific Performance...................... 23
Section 7.5. Entire Agreement.......................... 24
Section 7.6. Severability.............................. 24
Section 7.7. Headings.................................. 24
Section 7.8. Counterparts.............................. 24
Section 7.9. Notices................................... 24
Section 7.10. Successors and Assigns.................... 26
Section 7.11. Governing Law............................. 26
Section 7.12. Compliance by Affiliates.................. 26
Section 7.13. Reports................................... 26
Section 7.14. Fair Market Value Determination........... 26
Section 7.15. Aggregation; Definition of Shareholder.... 27
Section 7.16. Effectiveness............................. 27
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"Agreement"), dated August 6, 1997, is between Paine Webber Group Inc., a
Delaware corporation (the "Company"), General Electric Company, a New York
corporation ("Parent"), Kidder, Peabody Group Inc., a Delaware corporation and
an indirect wholly-owned subsidiary of Parent ("Group"), General Electric
Capital Services, Inc., a Delaware corporation ("GECS") and General Electric
Capital Corporation, a New York corporation (together with GECS, the
"Shareholder", which term shall include Parent and any subsidiary (as defined
below) of Parent to the extent Voting Securities (as defined below) have been
transferred to Parent or such subsidiary pursuant to Section 4.2(a)(i)).
WHEREAS, the Company, Parent and Group (i) have previously
entered into a Stockholders Agreement dated December 16, 1994 and (ii) desire
to amend and restate such Stockholders Agreement, effective upon consummation
of the sale of the capital stock of Kidder, Peabody & Co. Incorporated
pursuant to a Share Purchase Agreement (the "Share Purchase Agreement") dated
the date hereof among the Company, Parent and GECS; and
WHEREAS, Shareholder currently holds 1,000,000 shares of the
Company's 6% Cumulative Convertible Redeemable Preferred Stock, Series A,
stated value $100 per share, and 2,500,000 shares of the Company's 9%
Cumulative Redeemable Preferred Stock, Series C, stated value $100 per share,
and, upon consummation of the sale of the capital stock of Kidder, Peabody &
Co. Incorporated pursuant to the Share Purchase Agreement, is acquiring
15,500,000 shares of the Company's Common Stock, par value $1.00 per share;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Asset Purchase Agreement" means the Asset Purchase Agreement
dated as of October 17, 1994 between the Company, Parent and Group, as amended
and supplemented.
"Broad Public Distribution" means an underwritten
distribution registered under the 1933 Act or a distribution exempt from
registration thereunder in which Shareholder uses its best efforts to cause
the underwriters expressly to agree in writing for the benefit of the
Company that they collectively will not sell Voting Securities to any
"person" within the meaning of Section 13(d)(3) of the 1934 Act who, to the
best of such underwriters' knowledge after inquiry, would own, immediately
after such distribution, Voting Securities having aggregate voting power of
more than 3% of the voting power of all the then outstanding Voting
Securities.
"Common Stock" means the common stock, par value $1.00 per
share, of the Company.
"Convertible Preferred Stock" means the 6% Cumulative
Convertible Redeemable Preferred Stock, Series A, stated value $100 per share,
of the Company.
"Equity Treatment Percentage" means the lesser of (i) 20% and
(ii) the minimum percentage of Common Stock required to be owned to permit
Parent to account for its beneficial ownership of Voting Securities in
accordance with the "equity" method of accounting.
"Fair Market Value" of the Common Stock as of any day shall
mean the average daily closing sales price of the Common Stock for the ten
consecutive trading days preceding such day. The closing price for each
day shall be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the principal national
securities exchange on which the Common Stock is listed and admitted to
trading, or if not listed and admitted to trading on any such exchange, on
the NASDAQ National Market System, or if not quoted on the National Market
System, the average of the closing bid and asked prices in the over-the-
counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.
"Financial Services Group" means General Electric Capital
Services, Inc. and its subsidiaries (including, without limitation, Kidder,
Peabody Group Inc. and General Electric Capital Corporation), General Electric
Investment Corporation, General Electric Investment Management Incorporated or
any other Affiliate of Parent engaged in the financial services business.
"Preferred Stock" means, collectively, the Convertible
Preferred Stock and the Redeemable Preferred Stock.
"Redeemable Preferred Stock" means the 9% Cumulative Redeemable
Preferred Stock, Series C, stated value $100 per share, of the Company.
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), (i) any corporation of which securities
representing more than 50% of the equity and more than 50% of the ordinary
voting power are, at the time any determination is being made, owned by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent or (ii) any entity (other than a corporation)
controlled by the parent of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions and representing more than 50% of
the equity are, at the time any determination is being made, owned by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Third Party Account" means any account managed for the benefit
of another person (other than Parent or any Affiliate of Parent) by any member
of the Financial Services Group.
"Total Voting Power" means the aggregate number of votes which
may be cast by holders of outstanding Voting Securities.
"Voting Securities" means any securities of the Company
entitled to vote generally in the election of directors of the Company or
any direct or indirect rights or options to acquire any such securities or
any securities convertible or exercisable into or exchangeable for such
securities.
(b) Except as otherwise specified herein, terms used in this
Agreement shall have the respective meanings assigned to such terms in the
Asset Purchase Agreement. The rules of interpretation specified in Section
1.02 of the Asset Purchase Agreement shall be applicable to this Agreement.
Unless otherwise specified all references to "days" shall be deemed to be
references to calendar days.
ARTICLE 2
Representations and Warranties
Section 2.1. Representations and Warranties. Each of Parent
and Shareholder represents and warrants to the Company that (i) each
Shareholder entity is a wholly-owned indirect subsidiary of Parent; and
(ii)(a) Shareholder "beneficially owns" (as such term is defined in Rule 13d-3
under the 1934 Act) 2,500,000 shares of Redeemable Preferred Stock, 1,000,000
shares of Convertible Preferred Stock and 15,500,000 shares of Common Stock,
(b) the Financial Services Group (which includes Shareholder) does not
beneficially own any other Voting Securities except for any Voting Securities
held in any Third Party Account and (c) to the best knowledge of Parent,
neither it nor any of its Affiliates beneficially owns any other Voting
Securities, except for any Voting Securities held in any Third Party Account.
ARTICLE 3
Standstill and Voting Provisions
Section 3.1. Restrictions of Certain Actions by
Shareholder. Parent will not, and will cause each of its Affiliates not
to, singly or as part of a partnership, limited partnership, syndicate or
other group (as those terms are defined in Section 13(d)(3) of the 1934
Act), directly or indirectly:
(a) except as permitted under Section 6.1, acquire, offer to
acquire, or agree to acquire, by purchase, gift or otherwise, any Voting
Securities, except pursuant to a stock split, stock dividend, rights offering,
recapitalization, reclassification or similar transaction;
(b) make, or in any way participate in any "solicitation" of
"proxies" to vote (as such terms are defined in Rule 14a-1 under the 1934
Act), solicit any consent or communicate with or seek to advise or influence
any person or entity with respect to the voting of any Voting Securities or
become a "participant" in any "election contest" (as such terms are defined
or used in Rule 14a-11 under the 1934 Act) with respect to the Company;
(c) form, join, encourage or in any way participate in the
formation of, any "person" within the meaning of Section 13(d)(3) of the 1934
Act with respect to any Voting Securities; provided that this Section 3.1(c)
shall not prohibit any such arrangement solely among Parent and any of its
wholly-owned subsidiaries;
(d) deposit any Voting Securities into a voting trust or subject
any such Voting Securities to any arrangement or agreement with respect to the
voting thereof; provided that this Section 3.1(d) shall not prohibit any such
arrangement solely among Parent and any of its wholly-owned subsidiaries;
(e) initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals with respect to the Company as
described in Rule 14a-8 under the 1934 Act, or induce or attempt to induce any
other person to initiate any stockholder proposal;
(f) except in accordance with and pursuant to Section 3.2, seek
election to or seek to place a representative on the Board of Directors of the
Company or, except with the approval of management of the Company, seek the
removal of any member of the Board of Directors of the Company;
(g) except with the approval of management of the Company, call
or seek to have called any meeting of the stockholders of the Company;
(h) except through its representative on the Board of Directors of
the Company, otherwise act to seek to control, disrupt or influence the
management, business, operations, policies or affairs of the Company except
with the approval of management of the Company;
(i) (A) solicit, seek to effect, negotiate with or provide any
information to any other party with respect to, (B) make any statement or
proposal, whether written or oral, to the Board of Directors of the Company
or any director or officer of the Company with respect to, or (C) otherwise
make any public announcement or proposal whatsoever with respect to, any form
of business combination transaction involving the Company, including, without
limitation, a merger, exchange offer or liquidation of the Company's assets,
or any restructuring, recapitalization or similar transaction with respect to
the Company; provided that the foregoing shall not (x) apply to discussions
between officers, employees or agents of Parent or Shareholder and the
representative of Shareholder on the Board of Directors of the Company or (y)
in the case of clause (B) above, be interpreted to limit the ability of such
representative to make any such statement or proposal or to discuss any such
proposal with any officer, director or advisor to the Company or the Board of
Directors of the Company in connection with the performance by such
representative of his duty as a director;
(j) disclose or announce any intention, plan or arrangement
inconsistent with the foregoing; or
(k) advise, assist, instigate or encourage any third party to do
any of the foregoing (except, for purposes of clause (a) above, in connection
with any transfer of Voting Securities permitted under Section 4.2).
If Parent or any of its Affiliates owns or acquires any Voting
Securities in violation of this Agreement, such Voting Securities shall
immediately be disposed of to persons who are not Affiliates thereof but only
in compliance with the provisions of this Agreement; provided that the Company
may also pursue any other available remedy to which it may be entitled as a
result of such violation.
Section 3.2. Board Representation. (a) The Company will cause
one person mutually agreed upon by Parent and the Company to be elected to the
Company's Board of Directors concurrently with the execution hereof.
(b) Thereafter, so long as Shareholder owns Voting Securities
representing at least 10% of Total Voting Power (calculated on a fully diluted
basis assuming conversion or exchange of all outstanding securities of the
Company convertible into or exchangeable for Voting Securities and the
exercise of all rights or options to acquire Voting Securities), subject to the
further provisions of this Section 3.2, the Company's Nominating Committee (or
any other committee exercising a similar function) (the "Nominating
Committee") shall recommend to the Board of Directors of the Company that such
person (or any successor designated by Parent and approved by the Nominating
Committee) be included in the slate of nominees recommended by the Board of
Directors of the Company to shareholders for election as directors at each
annual meeting of shareholders of the Company at which such person's term
expires.
(c) In the event that the designee of Shareholder shall cease to
serve as a director for any reason, the vacancy resulting thereby shall be
filled by a person designated by Parent and approved by the Nominating
Committee.
(d) In the event that at any time Shareholder shall own Voting
Securities representing less than 10% of Total Voting Power (calculated as
provided in Section 3.2(b)), Shareholder shall have no further rights under
this Section 3.2 and shall promptly cause to resign, and take all other action
reasonably necessary to cause the prompt removal of, its designee to the Board
of Directors of the Company.
Section 3.3. Voting. (a) Whenever Shareholder shall have the
right to vote any Voting Securities, Shareholder shall (i) be present, in
person or represented by proxy, at all stockholder meetings of the Company so
that all Voting Securities beneficially owned by it shall be counted for the
purpose of determining the presence of a quorum at such meetings, and (ii)
subject to Section 3.3(b) below, vote or cause to be voted, or consent with
respect to, all Voting Securities beneficially owned by it in the manner
recommended by the Company's Board of Directors, except that during any period
or at any time when there shall be in full force and effect a valid order or
judgment of a court of competent jurisdiction or a ruling, pronouncement or
requirement of the New York Stock Exchange, Inc. ("NYSE") to the effect that
the foregoing provision of this Section 3.3 is invalid, void, unenforceable or
not in accordance with NYSE policy, then Shareholder will, if so requested by
the Board of Directors of the Company, vote or cause to be voted all Voting
Securities beneficially owned by it in the same proportion as the votes cast by
or on behalf of the other holders of Voting Securities.
(b) Notwithstanding anything to the contrary contained in Section
3.3(a) above, Shareholder shall have the right to vote freely, without regard
to any request or recommendation of the Board of Directors of the Company,
with respect to (i) all matters specified in paragraph (8) of the Certificate
of Designation of Rights and Preferences for the Convertible Preferred Stock
and paragraph (7) of the Certificate of Designation of Rights and Preferences
for the Redeemable Preferred Stock and (ii) any "Rule 13e-3 transaction" (as
defined in Rule 13e-3(a)(3) under the 1934 Act as in effect on the date hereof)
unless such transaction has been approved by a majority of the disinterested
directors of the Board of Directors of the Company.
ARTICLE 4
Transfer Restrictions
Section 4.1. Restrictions of Transfer. Except as otherwise
expressly permitted in this Agreement, Parent will not, and will not permit
its Affiliates to, directly or indirectly, transfer, sell, assign, pledge,
convey, hypothecate or otherwise encumber or dispose of ("transfer") any
Voting Securities.
Section 4.2. Permitted Transfers. (a) Notwithstanding the
provisions of Section 4.1, Parent and its Affiliates shall be permitted to
transfer any portion of or all their shares of Voting Securities or Redeemable
Preferred Stock under the following circumstances:
(i) transfers to any subsidiary of Parent, but only if such
transferee agrees in writing to be bound by the terms of this Agreement,
provided that such subsidiary shall be permitted to own such Voting Securities
only so long as such subsidiary shall remain a subsidiary of Parent and
provided further that no such transfer shall relieve Parent or Shareholder of
their obligations under this Agreement;
(ii) subject to the Company's rights under Section 4.4, in
the case of shares of Common Stock (including Common Stock issuable upon
conversion or redemption of the Convertible Preferred Stock), transfers
made pursuant to (A) a Broad Public Distribution or (B) Rule 144 under the
1933 Act, provided that any such sale pursuant to Rule 144 shall be subject
to the volume and manner of sale limitations set forth in such Rule whether
or not legally required;
(iii) subject to the Company's rights under Section 4.4, in
the case of shares of Convertible Preferred Stock, after December 16, 1999,
transfers made pursuant to a demand registration under Section 5.1(a);
(iv) pursuant to a tender offer or exchange offer or
acquisition of control of the Company or similar transaction, at any time
following the time at which the Company shall publicly announce or otherwise
disclose to Shareholder that the Board of Directors of the Company does not
oppose such transaction; or
(v) transfers of any portion of or all its shares of
Redeemable Preferred Stock to any person, provided that (A) Parent shall give
not less than 45 days prior written notice to the Company of its intention to
transfer such shares and (B) such person agrees in writing to be bound by the
terms of this Section 4.2(a)(v). Such notice shall specify the number of
shares of Redeemable Preferred Stock proposed to be transferred and the date
of the proposed transfer of such shares.
(b) Notwithstanding anything to the contrary in this Agreement,
Voting Securities shall not be transferred by Parent or any of its Affiliates
to any person (i) pursuant to a tender offer or exchange offer or acquisition
of control of the Company or similar transaction which is opposed by the
Company's Board of Directors or (ii) during the 12 months following the date
of effectiveness of this Agreement other than transfers permitted pursuant to
Section 4.02(a)(i) or Section 4.02(a)(iv).
Section 4.3. Company Call Right. (a) The Company shall have
the right (the "Call Right"), exercisable at any time or from time to time,
upon written notice to Shareholder (the "Call Notice"), to elect to purchase a
portion (to the extent provided below) of or all the shares of Common Stock
then held by Shareholder, at a purchase price per share payable in cash
(the "Call Price") equal to the greater of (x) the Fair Market Value of the
Common Stock as of the date of delivery of the Call Notice and (y)
$23.95634. Delivery of any Call Notice by the Company to Shareholder shall
be irrevocable.
(b) Notwithstanding the provisions of Section 4.3(a), if the
Company exercises its Call Right for less than all of the Common Stock then
held by Shareholder, (i) if immediately prior to such exercise, Parent
beneficially owns not less than the Equity Treatment Percentage of outstanding
Common Stock and, at such time, Parent accounts for such ownership of Common
Stock in accordance with the equity method of accounting, then the Company
shall be permitted to exercise its Call Right in part only to the extent that
such exercise would not reduce the percentage of outstanding Common Stock
beneficially owned by Parent below the Equity Treatment Percentage and (ii)
if immediately prior to such exercise, the Company is a 20-percent owned
corporation within the meaning of Section 243(c)(2) of the Code as in
effect on the date hereof (a "20-percent owned corporation") of the
Shareholder, then the Company shall be permitted to exercise its Call Right
in part only to the extent that such exercise would not result in the
Company ceasing to be a 20-percent owned corporation of the Shareholder.
For purposes of clause (ii) of this paragraph (b), (A) the term "stock"
shall have the same meaning as in Section 243(c)(2) of the Code as in
effect on the date hereof and (B) all shares of stock of the Company held
by Shareholder or any Affiliate of Shareholder shall be treated as if they
were held by a single legal entity. Nothing in this Section 4.3(b) shall
be construed to limit the Company's right to exercise its Call Right at any
time in respect of all the Common Stock held by Shareholder at such time.
(c) Notwithstanding the provisions of Section 4.3(a), the Call
Right shall be suspended and shall not be exercisable by the Company during
the pendency of any transaction described in Section 4.02(a)(iv) following
the time at which the Company shall publicly announce or otherwise disclose
to Shareholder that the Board of Directors of the Company does not oppose
such transaction.
(d) Any purchase of Common Stock by the Company pursuant to
this Section 4.3 shall be on a mutually determined closing date which shall
not be more than 30 days after delivery of the Call Notice. The closing
shall be held at 10:00 a.m., local time, at the principal office of the
Company, or at such other time or place as the parties mutually agree.
(e) On the closing date, Shareholder shall deliver (i)
certificates representing the shares of Common Stock being sold, free and
clear of any lien, claim or encumbrance, and (ii) such other documents,
including evidence of ownership and authority, as the Company may
reasonably request. The Call Price shall be paid by wire transfer of
immediately available funds no later than 2:00 p.m., local time, on the
closing date.
Section 4.4. Right of First Refusal. (a) If Shareholder
desires to transfer any shares of Common Stock (including Common Stock
issuable upon conversion or redemption of the Convertible Preferred Stock)
pursuant to Section 4.2(a)(ii) or shares of Convertible Preferred Stock
pursuant to Section 4.2(a)(iii), Shareholder shall give prompt written notice
(the "Transfer Notice") to the Company of such intention, specifying the
number of shares of Common Stock or Convertible Preferred Stock proposed to be
transferred (the "Offered Shares"). The Transfer Notice shall constitute an
irrevocable offer (the "Offer") by Shareholder to sell to the Company the
Offered Shares at a price (the "Offer Price") equal to (x) in the case of the
Convertible Preferred Stock, the aggregate price specified by Shareholder in
the Transfer Notice and (y) in the case of the Common Stock, the aggregate
Fair Market Value of such Offered Shares on the date of delivery of the
Transfer Notice. The Company shall have the right, exercisable by written
notice given by the Company to Shareholder within 30 days after receipt of
such Transfer Notice, to purchase (or to cause a person or group designated by
the Company to purchase) all, but not a part of, the Offered Shares specified
in such Transfer Notice for cash at the Offer Price by delivery of a notice
(the "Exercise Notice") to Shareholder stating the Company's irrevocable
acceptance of the Offer.
(b) If the Company elects to purchase the Offered Shares, the
closing of the purchase of the Offered Shares shall take place on a mutually
acceptable closing date which shall be not more than 30 days after delivery of
the Exercise Notice. The closing shall be held at 10:00 a.m., local time, at
the principal office of the Company or at such other time or place as the
parties mutually agree.
(c) On the closing date, Shareholder shall deliver (or cause to be
delivered) (i) certificates representing the Offered Shares, free and clear of
any lien, claim or encumbrance, and (ii) such other documents, including
evidence of ownership and authority, as the Company may reasonably request.
The Offer Price shall be paid by wire transfer of immediately available funds
no later than 2:00 p.m., local time, on the closing date.
(d) If the Company fails to elect to purchase the Offered Shares
within the period specified in Section 4.3(a), (i) Shareholder shall be free,
during the period of 90 days following the expiration of such period, to
transfer any portion of or all the Offered Shares pursuant to Section
4.2(a)(ii) or 4.2(a)(iii), as the case may be, and (ii) the Company shall not
be entitled to exercise its Call Right with respect to the Offered Shares
during the period from the date of the Transfer Notice to the end of such
90-day period. Offered Shares not so transferred within such 90-day period
shall again become subject to the procedures provided for in this Section 4.4
and to the Call Right. Notwithstanding the foregoing, in the case of any
proposed transfer of any portion or all of the Offered Shares pursuant to
Section 4.2(a)(ii)(B) under Rule 144 at a price (the "Reduced Offer Price")
less than 95% of the Offer Price, Shareholder shall first offer such Offered
Shares to the Company by notice (oral or written) to the Senior Vice President
and Senior Associate General Counsel of PaineWebber Incorporated made during
regular business hours. The Company shall have the right, exercisable by the
close of business on the immediately following Business Day after receipt of
such notice from Shareholder, to purchase all, but not a part of, such Offered
Shares at the Reduced Offer Price. If the Company does not elect to purchase
such Offered Shares, Shareholder may transfer such Offered Shares under Rule
144 pursuant to Section 4.2(a)(ii)(B) at a price equal to or above the Reduced
Offer Price, provided that any Offered Shares not so transferred within ten
Business Days shall again become subject to the procedures provided for in
this Section 4.4(d).
Section 4.5. Assignment. The Company may assign any of its
rights under Section 4.3 or 4.4 to any person without the consent of
Shareholder; provided that no such assignment shall relieve the Company of any
of its obligations pursuant to Section 4.3 or 4.4. In the event that the
Company elects to exercise a right under Section 4.3 or 4.4, the Company may
specify in its Call Notice or Exercise Notice, as applicable, or thereafter
prior to purchase, another such person as its designee to purchase the Offered
Shares to which such Call Notice or Exercise Notice, as applicable, relates.
ARTICLE 5
Registration Rights
Section 5.1. Registration upon Request. (a) From and after
the first anniversary of the date of effectiveness of this Agreement, Parent
shall have the right to make written demand upon the Company, on not more than
five separate occasions (subject to the provisions of this Section 5.1), to
register under the 1933 Act (i) shares of Redeemable Preferred Stock, (ii)
shares of Common Stock issued to Shareholder pursuant to the Share Purchase
Agreement, acquired upon conversion of the Convertible Preferred Stock, or
acquired in accordance with Section 6.1 of this Agreement or (iii) at any time
after December 16, 1999, shares of Convertible Preferred Stock (the shares
subject to such demand hereunder being referred to as the "Subject Stock"),
and the Company shall use its best efforts to cause such shares to be
registered under the 1933 Act as soon as reasonably practicable so as to
permit the sale thereof promptly; provided that each such demand shall cover
at least (A) $50,000,000 liquidation preference of Redeemable Preferred Stock,
(B) $100,000,000 liquidation preference of Convertible Preferred Stock or (C)
5,000,000 shares of Common Stock, in the case of the first such demand
relating to Common Stock, or 2,500,000 shares of Common Stock in any
subsequent demand relating to Common Stock (subject in each case to adjustment
for stock splits, reverse stock splits, stock dividends and similar events
after the date hereof), as the case may be. In connection therewith, the
Company shall as promptly as practicable prepare, file (on Form S-3 if
permitted or otherwise on the appropriate form) and use its best efforts to
cause to become effective a registration statement under the 1933 Act to
effect such registration. Parent and Shareholder agree to provide all such
information and materials and to take all such action as may be reasonably
required in order to permit the Company to comply with all applicable
requirements of the 1933 Act and the Commission and to obtain any desired
acceleration of the effective date of such registration statement.
(b) Notwithstanding the provisions of Section 5.1(a) and
5.1(c), the Company (i) shall not be obligated to prepare or file more than
one registration statement pursuant to this Section 5.1 during any 12-month
period and (ii) shall be entitled to postpone the filing of any
registration statement otherwise required to be prepared and filed by the
Company pursuant to Section 5.1(a) (A) for a period of up to 60 days
following completion of any underwritten public offering of securities
contemplated by the Company prior to receipt of a demand for registration
hereunder, provided that the Company is advised by its managing underwriter
or underwriters in writing (with a copy to Shareholder), that the price at
which securities would be offered in such offering would, in its or their
opinion, be materially adversely affected by the registration so requested,
or (B) for a period of up to 135 days if the Company determines in its
reasonable judgment and in good faith that the registration and
distribution of the shares of Subject Stock would impair or interfere with
in any material respect any contemplated material financing, acquisition,
disposition, corporate reorganization or other similar transaction or other
material corporate development involving the Company or any of its
subsidiaries or Affiliates or would require premature disclosure thereof,
and such disclosure is not practicable in the Company's reasonable judgment
in light of the facts and circumstances then existing or would impair or
interfere with in any material respect such transaction or would otherwise
materially adversely affect the Company. In the event of such
postponement, Parent shall have the right to withdraw the request for
registration by giving written notice to the Company within 20 days after
receipt of notice of postponement and, in the event of such withdrawal,
such request shall not be counted for purposes of determining the number of
registrations to which Parent is entitled pursuant to this Section 5.1.
(c) In addition to the rights of Parent set forth in Section
5.1(a), if at any time the Company shall exercise its right pursuant to
paragraph (5)(d) of the Certificate of Designation of Rights and Preferences
for the Convertible Preferred Stock to deliver shares of Common Stock in lieu
of cash in payment of the redemption price for any shares of Convertible
Preferred Stock, Parent shall have the right, exercisable within 30 days
following receipt of notice of such redemption for Common Stock, to make an
additional written demand upon the Company to register under the 1933 Act any
or all shares of Common Stock received in connection with such redemption, and
the Company shall use its best efforts to cause such shares to be registered
under the 1933 Act as soon as reasonably practicable so as to permit the sale
thereof promptly, subject to the provisions of Section 5.1(b).
(d) Except in accordance with the provisions of the Amended and
Restated Investment Agreement (the "Yasuda Agreement") dated as of November 5,
1992, between the Company and The Yasuda Mutual Life Insurance Company
("Yasuda"), the Company shall not grant to any other holder of its securities,
whether currently outstanding or issued in the future, any incidental or
piggyback registration rights with respect to any registration statement filed
pursuant to a demand registration under this Section 5.1 and, except as
aforesaid with respect to the rights of Yasuda, without the prior consent of
Parent, the Company will not permit any holder of its securities other than
Yasuda to participate in any offering made pursuant to a demand registration
under this Section 5.1.
Section 5.2. Incidental Registration Rights. If the
Company proposes to register any of its Common Stock under the 1933 Act
(other than (i) pursuant to Section 5.1 hereof, (ii) securities to be
issued pursuant to a stock option or other employee benefit or similar
plan, or (iii) securities proposed to be issued in exchange for securities
or assets of, or in connection with a merger or consolidation with, another
corporation) the Company shall, as promptly as practicable, give written
notice to Parent of the Company's intention to effect such registration.
If, within 15 days after receipt of such notice, Parent submits a written
request to the Company specifying the amount of Common Stock that it
proposes to sell or otherwise dispose of in accordance with this Section
5.2, the Company shall use its best efforts to include the shares specified
in Parent's request in such registration. If in a registration other than
pursuant to Section 2.3 of the Yasuda Agreement, the managing underwriters
reasonably determine in good faith and advise Shareholder in writing that
the inclusion in the registration statement of all the Common Stock
proposed to be included would interfere with the successful marketing and
sale of the securities proposed to be registered, then the amount of Common
Stock to be registered by Parent pursuant to this Section 5.2 shall be
reduced to the amount, if any, determined by the managing underwriters in
good faith that would not interfere with such marketing and sale, provided
that if securities are being offered for the account of any Person other
than the Company, then the amount of securities of such other Person and
Shareholder shall be reduced proportionately based on the number of
securities each such Person requested to be included in the offering. If
in a registration pursuant to Section 2.3 of the Yasuda Agreement, Yasuda
advises the Company that in Yasuda's reasonable judgment registration of
the Shareholder's shares of Common Stock would adversely affect the
offering and sale of its securities under the Yasuda Agreement, then the
number of Shareholder's shares of Common Stock to be included in such
offering shall be reduced to the amount, if any, determined by Yasuda in
its reasonable judgment, that would not adversely affect such offering and
sale. No registration effected under this Section 5.2 shall relieve the
Company of its obligation to effect any registration upon request under
Section 5.1. If Shareholder has been permitted to participate in a
proposed offering pursuant to this Section 5.2, the Company thereafter may
determine either not to file a registration statement relating thereto, or
to withdraw such registration statement, or otherwise not to consummate
such offering, without any liability hereunder.
Section 5.3. Broad Public Distribution; Lead Manager. (a) The
Company shall be required to register Subject Stock that is Common Stock
pursuant to this Article V only if such Common Stock is to be offered and sold
in a Broad Public Distribution.
(b) The Company shall be required to register Subject Stock
pursuant to this Article V only if such Subject Stock is to be offered and
sold in an underwritten distribution lead-managed by the Company's principal
broker-dealer subsidiary, provided that, in the reasonable judgment of Parent,
the proposed terms of offering by such subsidiary are customary and reasonably
competitive and provided further that Parent in all cases shall have the right
to designate a non-book-running co-lead manager for any such offering.
Section 5.4. Registration Mechanics. (a) In connection
with any offering of shares of Subject Stock registered pursuant to Section
5.1 or 5.2 herein, the Company shall (i) furnish to Shareholder such number
of copies of any prospectus (including preliminary and summary
prospectuses) and conformed copies of the registration statement (including
amendments or supplements thereto and, in each case, all exhibits) and such
other documents as it may reasonably request, but only while the Company
shall be required under the provisions hereof to cause the registration
statement to remain current; (ii) (A) use its best efforts to register or
qualify the Subject Stock covered by such registration statement under such
blue sky or other state securities laws for offer and sale as Shareholder
shall reasonably request and (B) keep such registration or qualification in
effect for so long as the registration statement remains in effect;
provided that the Company shall not be obligated to qualify to do business
as a foreign corporation under the laws of any jurisdiction in which it
shall not then be qualified or to file any general consent to service of
process in any jurisdiction in which such a consent has not been previously
filed or subject itself to taxation in any jurisdiction wherein it would
not otherwise be subject to tax but for the requirements of this Section
5.4; (iii) use its best efforts to cause all shares of Subject Stock
covered by such registration statement to be registered with or approved by
such other federal or state government agencies or authorities as may be
necessary in the opinion of counsel to the Company to enable Shareholder to
consummate the disposition of such shares of Subject Stock; (iv) notify
Shareholder any time when a prospectus relating thereto is required to be
delivered under the 1933 Act upon discovery that, or upon the happening of
any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made, and (subject to the
good faith determination of the Company's Board of Directors as to whether
to permit sales under such registration statement), at the request of
Shareholder promptly prepare and furnish to it a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made; (v) otherwise use
its best efforts to comply with all applicable rules and regulations of the
SEC; (vi) use its best efforts to list, if required by the rules of the
applicable securities exchange or, if securities of the same class are then
so listed, the Subject Stock covered by such registration statement on the
NYSE or on any other securities exchange on which Subject Stock is then
listed; (vii) before filing any registration statement or any amendment or
supplement thereto, and as far in advance as is reasonably practicable,
furnish to Shareholder and its counsel copies of such documents; and (viii)
furnish to Shareholder, addressed to it, an opinion of counsel for the
Company, dated the date of the closing under the underwriting agreement
relating to any underwritten offering covering substantially the same
matters with respect to such registration statement (and the prospectus
included therein) as are customarily covered in opinions of counsel
delivered to underwriters in underwritten public offerings of securities.
(b) In connection with any offering of Subject Stock registered
pursuant to Section 5.1 or 5.2, the Company shall (x) furnish to the
underwriter, if any, unlegended certificates representing ownership of the
Subject Stock being sold in such denominations as requested and (y) instruct
any transfer agent and registrar of the Subject Stock to release any stop
transfer orders with respect to such Subject Stock.
(c) At any time that Parent shall not be entitled to designate a
nominee for election to the Board of Directors pursuant to Section 3.2, in
connection with the preparation and filing of each registration statement
registering Subject Stock under the 1933 Act, the Company will give
Shareholder and the underwriters, if any, and their respective counsel and
accountants (collectively, the "Inspectors"), such reasonable and customary
access to its books and records (collectively, the "Records") and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of Shareholder and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the 1933 Act. Records which the Company reasonably determines to
be confidential and which it notifies the Inspectors in writing are
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary or appropriate to avoid or correct a
misstatement or omission in the registration statement, (ii) the portion of
the Records to be disclosed has otherwise become publicly known, (iii) the
information in such Records is to be used in connection with any litigation or
governmental investigation or hearing relating to any registration statement
or (iv) the release of such Records is ordered pursuant to a subpoena or other
order. Shareholder agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company.
(d) Upon any registration becoming effective pursuant to Section
5.1, the Company shall use its best efforts to keep such registration statement
current for a period of 90 days or such shorter period as shall be necessary to
effect the distribution of the Subject Stock.
(e) Shareholder agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in clause (iv) of
Section 5.4(a), it will forthwith discontinue its disposition of Subject Stock
pursuant to the registration statement relating to such Subject Stock until its
receipt of the copies of the supplemented or amended prospectus contemplated
by clause (iv) of Section 5.3(a) and, if so directed by the Company, will
deliver to the Company all copies then in its possession of the prospectus
relating to such Subject Stock current at the time of receipt of such notice.
If Shareholder's disposition of Subject Stock is discontinued pursuant to the
foregoing sentence, unless the Company thereafter extends the effectiveness of
the registration statement to permit dispositions of Subject Stock by
Shareholder for an aggregate of 90 days, whether or not consecutive, the
registration statement shall not be counted for purposes of determining the
number of registrations to which Shareholder is entitled pursuant to Section
5.1.
Section 5.5. Expenses. In connection with any registration
pursuant to this Article V (i) Shareholder shall pay all agent fees and
commissions and underwriting discounts and commissions related to shares of
Subject Stock being sold by Shareholder and the fees and disbursements of its
counsel and accountants and (ii) the Company shall pay all fees and
disbursements of its counsel and accountants and the expenses (including the
fees of any separate counsel) of any "qualified independent underwriter"
required in accordance with the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. All other fees and expenses in
connection with any registration statement (including, without limitation, all
registration and filing fees, all printing costs, all fees and expenses of
complying with securities or blue sky laws) shall (i) in the case of a
registration pursuant to Section 5.1, be borne by Shareholder and (ii) in the
case of a registration pursuant to Section 5.2, be shared pro rata based upon
the respective market values of the securities to be sold by the Company,
Shareholder and any other holders participating in such offering; provided
that Shareholder shall not pay any expenses relating to work that would
otherwise be incurred by the Company including, but not limited to, the
preparation and filing of periodic reports with the Commission.
Section 5.6. Indemnification and Contribution. In the case
of any offering registered pursuant to this Article V, the Company agrees
to indemnify and hold Shareholder, each underwriter, if any, of the Subject
Stock under such registration and each person who controls any of the
foregoing within the meaning of Section 15 of the 1933 Act, and any
officer, employee or partner of the foregoing, harmless against any and all
losses, claims, damages, or liabilities (including reasonable legal fees
and other reasonable expenses incurred in the investigation and defense
thereof) to which they or any of them may become subject under the 1933 Act
or otherwise (collectively "Losses"), insofar as any such Losses shall
arise out of or shall be based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
relating to the sale of such Subject Stock (as amended if the Company shall
have filed with the SEC any amendment thereof), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in the
prospectus relating to the sale of such Subject Stock (as amended or
supplemented if the Company shall have filed with the SEC any amendment
thereof or supplement thereto), or the omission or alleged omission to
state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided that the indemnification contained in this Section 5.6
shall not apply to such Losses which shall arise out of or shall be based
upon any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, which shall have been made in reliance upon
and in conformity with information furnished in writing to the Company by
Shareholder or any such underwriter, as the case may be, specifically for
use in connection with the preparation of the registration statement or
prospectus contained in the registration statement or any such amendment
thereof or supplement therein.
Notwithstanding the foregoing provisions of this Section
5.6, the Company will not be liable to Shareholder, any person who
participates as an underwriter in the offering or sale of Subject Stock or
any other person, if any, who controls Shareholder or any underwriter
(within the meaning of the 1933 Act), under the indemnity agreement in this
Section 5.6 for any such Losses that arise out of Shareholder or other
person's failure to send or give a copy of the final prospectus to the
person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the
sale of the Subject Stock to such person if such statement or omission was
corrected in such final prospectus and the Company has previously furnished
copies thereof in accordance with this Agreement.
In the case of each offering registered pursuant to this
Article V, Parent shall, or shall cause General Electric Capital Services,
Inc. or another member of the Financial Services Group, reasonably
satisfactory to the Company (the "Parent Indemnitor") to, agree and each
underwriter, if any, participating therein shall agree, substantially in the
same manner and to the same extent as set forth in the preceding paragraph,
severally to indemnify and hold harmless the Company and each person who
controls the Company within the meaning of Section 15 of the 1933 Act, and any
director, officer, employee or partner of the Company, with respect to any
statement in or omission from such registration statement or prospectus
contained in such registration statement (as amended or as supplemented, if
amended or supplemented as aforesaid) if such statement or omission shall have
been made in reliance upon and in conformity with information furnished in
writing to the Company by Parent, Shareholder or such underwriter, as the case
may be, specifically for use in connection with the preparation of such
registration statement or prospectus contained in such registration statement
or any such amendment thereof or supplement thereto.
Each party indemnified under this Section 5.6 shall, promptly
after receipt of notice of the commencement of any claim against such
indemnified party in respect of which indemnity may be sought hereunder,
notify the indemnifying party in writing of the commencement thereof. The
failure of any indemnified party to so notify an indemnifying party shall not
relieve the indemnifying party from any liability in respect of such action
which it may have to such indemnified party on account of the indemnity
contained in this Section 5.6, unless (and only to the extent) the
indemnifying party was prejudiced by such failure, and in no event shall such
failure relieve the indemnifying party from any other liability which it may
have to such indemnified party. In case any action in respect of which
indemnification may be sought hereunder shall be brought against any
indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it may desire, jointly with any other
indemnifying party similarly notified, to assume the defense thereof through
counsel reasonably satisfactory to the indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 5.6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable costs of investigation (unless (i) such
indemnified party reasonably objects to such assumption on the grounds that
there may be defenses available to it which are different from or in addition
to those available to such indemnifying party, (ii) the indemnifying party and
such indemnified party shall have mutually agreed to the retention of such
counsel or (iii) in the reasonable opinion of such indemnified party
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding, in which case the indemnified party shall be
reimbursed by the indemnifying party for the reasonable expenses incurred in
connection with retaining separate legal counsel). No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any claim or pending or threatened proceeding in respect of
which the indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
arising out of such claim or proceeding.
If the indemnification provided for in this Section 5.6 is
unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless from any Losses in respect of which this Section
5.6 would otherwise apply by its terms (other than by reason of exceptions
provided herein), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative benefits received by and fault of the indemnifying party, on the one
hand, and such indemnified party, on the other hand, in connection with the
offering to which such contribution relates as well as any other relevant
equitable considerations. The relative benefit shall be determined by
reference to, among other things, the amount of proceeds received by each
party from the offering to which such contribution relates. The relative
fault shall be determined by reference to, among other things, each party's
relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, and the opportunity to correct and
prevent any statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any investigation or
proceeding, to the extent such party would have been indemnified for such
expenses if the indemnification provided for in this Section 5.6 was available
to such party.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5.6 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Section 5.7. Underwriting Agreement. (a) In connection
with any underwritten offering of Subject Stock pursuant to a registration
requested under Section 5.1, the Company, the Parent Indemnitor and
Shareholder will enter into an underwriting agreement with the underwriters
for such offering, such agreement to contain such representations and
warranties by the Company, the Parent Indemnitor and Shareholder and such
other terms and provisions as are customarily contained in the underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Section 5.6 (and customary provisions with respect to
indemnities and contribution by such underwriters).
(b) In connection with any underwritten offering of Subject Stock
pursuant to a registration requested under Section 5.2, the Company may
require the Common Stock requested to be registered pursuant to Section 5.2
to be included in such underwriting on the same terms and conditions as shall
be applicable to Common Stock being sold by the Company through underwriters
under such registration. In such case, the Parent Indemnitor and Shareholder
shall be a party to any such underwriting agreement. Such agreement shall
contain such representations, warranties and covenants by the Parent
Indemnitor and Shareholder and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution to
the effect and to the extent provided in Section 5.6 (and customary provisions
with respect to indemnities and contribution by such underwriters).
ARTICLE 6
Shareholder Purchase Rights
Section 6.1. Shareholder Purchase Rights. (a) If, immediately
after giving effect to and as a result of any issuance of Voting Securities by
the Company, Parent shall beneficially own Common Stock representing less than
the Equity Treatment Percentage of the total number of shares of Common Stock
then outstanding (it being understood for all purposes of this Agreement that
any shares of Common Stock beneficially owned by Kidder, Peabody & Co.
Incorporated shall not be considered to be outstanding so long as it is a
subsidiary of the Company) and, at such time, Parent accounts for such
ownership of Common Stock in accordance with the equity method of accounting,
Parent shall have the right to acquire, at any time or from time to time
thereafter, in the open market or in private transactions, a number of shares
of Common Stock in the aggregate equal to the excess of (x) the number of
shares representing the Equity Treatment Percentage of the then outstanding
Common Stock over (y) the number of shares of Common Stock then beneficially
owned by Parent (including any shares of Common Stock acquired by Shareholder
pursuant to Section 6.1(b)).
(b) If, immediately after giving effect to and as a result of any
issuance of stock by the Company after the date hereof, the Company shall not
be a 20-percent owned corporation of the Shareholder and immediately prior
thereto the Company was a 20-percent owned corporation of the Shareholder,
Shareholder shall have the right to acquire at any time or from time to time
thereafter, in the open market or in private transactions, a number of shares
of Common Stock sufficient (together with any shares acquired pursuant to
Section 6.1(a)) to enable Shareholder to treat the Company as a 20-percent
owned corporation. For purposes of this paragraph (b), (i) the term "stock"
shall have the same meaning as in Section 243(c)(2) of the Code as in effect
on the date hereof, and (ii) all shares of stock of the Company held by
Shareholder or any Affiliate of Shareholder shall be treated as if they were
held by a single legal entity.
ARTICLE 7
Miscellaneous
Section 7.1. Termination. This Agreement shall terminate upon
(a) the written agreement of the Company, Shareholder and Parent to terminate
this Agreement; or (b) the earlier of (i) December 16, 2009 and (ii) the third
anniversary of the date on which Parent and its Affiliates shall no longer
beneficially own any Voting Securities. The provisions of Articles 3 and 4 of
this Agreement shall terminate upon any failure by the Company to observe and
perform its obligations under Section 3.2.
Section 7.2. Financial Services Group. Notwithstanding any
other provision of this Agreement, nothing contained herein shall apply to any
Voting Securities held in any Third Party Account, and any such Voting
Securities shall not be counted for purposes of this Agreement as being owned
by Parent or any of its Affiliates.
Section 7.3. Legend. (a) All certificates representing
Common Stock subject to this Agreement shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND NEITHER THE
SHARES NOR ANY INTEREST THEREIN MAY BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION UNDER SUCH ACT IS NOT REQUIRED. THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT DATED AUGUST 6, 1997 (A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY)
WHICH PROVIDES, AMONG OTHER THINGS, FOR CERTAIN RIGHTS OF
PURCHASE OF SUCH SHARES BY THE COMPANY AND CERTAIN
RESTRICTIONS ON TRANSFER THEREOF. ANY SALE OR OTHER
TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT SHALL BE
VOID."
(b) All certificates representing Preferred Stock subject to this
Agreement shall bear the following legend, in addition to the legend (with the
date appropriately completed) which such certificates currently bear (and, on
such date as this Agreement shall become effective, Shareholder will submit
such certificates to the Company to be so legended):
"THE STOCKHOLDERS AGREEMENT DATED AS OF DECEMBER 16, 1994
HAS BEEN AMENDED AND RESTATED EFFECTIVE AUGUST __, 1997.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED
AUGUST 6, 1997 (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY) WHICH PROVIDES, AMONG OTHER
THINGS, FOR CERTAIN RIGHTS OF PURCHASE OF SUCH SHARES BY
THE COMPANY AND CERTAIN RESTRICTIONS ON TRANSFER THEREOF.
ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID
AGREEMENT SHALL BE VOID."
Section 7.4. Specific Performance. (a) Parent and
Shareholder, on the one hand, and the Company, on the other, acknowledge and
agree that irreparable damage would occur if any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically its provisions in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
may be entitled at law or in equity.
(b) Parent and Shareholder, on the one part, and the Company,
on the other part, each irrevocably agrees that any legal action or
proceeding against it with respect to this Agreement and any transaction
contemplated by this Agreement may be brought in the courts of the State of
New York, or of the United States of America for the Southern District of
New York, and by execution and delivery of this Agreement Shareholder,
Parent and the Company each irrevocably submits to the jurisdiction of such
court and irrevocably designates, appoints and empowers the Secretary of
State of the State of New York to receive for and on its behalf service of
process in the State of New York and further irrevocably consents to the
service or process outside of the territorial jurisdiction of such courts
by mailing copies by registered United States mail, postage prepaid, to its
address specified in this Agreement.
Section 7.5. Entire Agreement. The Transaction Documents
(other than the Stockholders Agreement) and the documents referred to therein,
the Share Purchase Agreement and the documents referred to therein and this
Agreement constitute the entire agreement and understanding of the parties
with respect to the transactions contemplated by such parties. This Agreement
may be amended only by an agreement in writing executed by the Company and
Parent.
Section 7.6. Severability. If any provision of this
Agreement is held by a court of competent jurisdiction to be unenforceable,
the remaining provisions shall remain in full force and effect. It is
declared to be the intention of the parties that they would have executed
the remaining provisions without including any that may be declared
unenforceable.
Section 7.7. Headings. Descriptive headings are for
convenience only and will not control or affect the meaning or construction of
any provision of this Agreement.
Section 7.8. Counterparts. For the convenience of the
parties, any number of counterparts of this Agreement may be executed by the
parties, and each such executed counterpart will be an original instrument.
Section 7.9. Notices. All notices, requests, demands and
other communications required or permitted hereunder shall be made in
writing by hand-delivery, registered first-class mail, telex, telecopier or
air courier guaranteeing overnight delivery:
(a) If to the Company, to:
Paine Webber Group Inc.
1285 Avenue of the Americas
New York, New York 10019
Attention: General Counsel
Telecopy: 212-713-2114
(with copies to):
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention: Peter S. Wilson
Telecopy: 212-474-3700
(b) If to Shareholder (including any other subsidiary of
Parent to which shares of Common Stock or Preferred Stock are transferred
pursuant to Section 4.2(a)(i)) or Group, to:
General Electric Capital Services, Inc.
General Electric Capital Corporation
260 Long Ridge Road
Stamford, Connecticut 06927
Attention: General Counsel
Telecopy: 203-357-3365
(with copies to):
Parent
(c) If to Parent, to:
General Electric Company
3135 Easton Turnpike
Fairfield, Connecticut 06431
Attention: Senior Counsel for Transactions
Telecopy: 202-373-3008
(with copies to):
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Dennis S. Hersch
Telecopy: 212-450-4800
or to such other person or address as any party shall furnish
to each other party hereto in writing.
All such notices, requests, demands and other communications
shall be deemed to have been duly given: at the time of delivery by hand, if
personally delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Section 7.10. Successors and Assigns. This Agreement shall
bind the successors and assigns of the parties, and inure to the benefit of
any successor or assign of any of the parties; provided that, except as
provided in Section 4.5, no party may assign this Agreement without the other
party's prior written consent.
Section 7.11. Governing Law. This Agreement will be governed
by and construed and enforced in accordance with the internal laws of the
State of New York, without giving effect to the conflict of laws principles
thereof.
Section 7.12. Compliance by Affiliates. Subject to Section
7.2, Parent shall, and shall cause its Affiliates to, observe and perform all
covenants and agreements of Parent and Shareholder set forth in this Agreement
as if such covenants and agreements were directly applicable to Parent and
such Affiliates.
Section 7.13. Reports. So long as Shareholder shall own any
Voting Securities, the Company will furnish Shareholder with the quarterly and
annual financial reports that the Company is required to file with the
Commission pursuant to Section 13 or Section 15(d) of the 1934 Act or, in the
event the Company is not required to file such reports, reports containing the
same information as would be required in such reports.
Section 7.14. Fair Market Value Determination. So long as
Shareholder shall own any Convertible Preferred Stock, if Parent shall
object to any determination of the fair market value of noncash
consideration made by the Board of Directors of the Company in accordance
with paragraph (7)(g)(ii) of the Certificate of Designation of Rights and
Preferences for such Convertible Preferred Stock, the parties shall
negotiate in good faith in order to agree on such fair market value. If
the parties are unable to agree on such fair market value within 30 days,
the Board of Directors of the Company shall retain a nationally recognized
investment banking firm reasonably satisfactory to Parent to determine such
fair market value. The fees and expenses of such investment banking firm
shall be shared equally by Parent and the Company. Parent shall be
notified promptly of any consideration other than cash subject to any such
determination and furnished with a description of the consideration and the
fair market value thereof, as determined by the Board of Directors of the
Company.
Section 7.15. Aggregation; Definition of Shareholder. For
purposes of this Agreement, all shares of Voting Securities and Redeemable
Preferred Stock held by each Shareholder shall be treated as if they were held
by a single legal entity. Each reference to Shareholder, where the context so
requires, shall be deemed to be a reference to Parent or the relevant
subsidiary or subsidiaries of Parent which holds Voting Securities.
Section 7.16. Effectiveness. This Agreement shall become
effective immediately upon consummation of the sale of the capital stock of
Kidder, Peabody & Co. Incorporated pursuant to the Share Purchase Agreement,
without any further action by any of the parties hereto, and shall be of no
force or effect until such time.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized on the date first above written.
PAINE WEBBER GROUP INC.
By: /s/ F. Daniel Corkery
------------------------------------
Name: F. Daniel Corkery
Title: Senior Vice President and
Senior Associate General
Counsel
GENERAL ELECTRIC COMPANY
By: /s/ Pamela Daley
------------------------------------
Name: Pamela Daley
Title: Vice President and Senior
Counsel for Transactions
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By: /s/ Joan Amble
------------------------------------
Name: Joan Amble
Title: Vice President and
Controller
GENERAL ELECTRIC
CAPITAL CORPORATION
By: /s/ Joan Amble
------------------------------------
Name: Joan Amble
Title: Vice President and
Controller
KIDDER, PEABODY GROUP INC.
By: /s/ Joan Amble
------------------------------------
Name: Joan Amble
Title: Senior Vice President
