<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 8, 1997
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------------
GENERAL ELECTRIC COMPANY
(Exact Name of Registrant as Specified in its Charter)
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<S> <C> <C>
NEW YORK 3724 14-0689340
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
Incorporation or Organization) No.)
</TABLE>
3135 EASTON TURNPIKE
FAIRFIELD, CONNECTICUT 06431-0001
(203) 373-2211
(Address and telephone number of Registrant's principal executive offices)
ROBERT E. HEALING
3135 EASTON TURNPIKE
FAIRFIELD, CONNECTICUT 06431-0001
(203) 373-2243
(Name, address and telephone number of agent for service)
--------------------------
COPIES TO:
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<S> <C> <C>
JOHN A. MARZULLI, JR. MICHAEL A. BUCCI STEPHEN A. WEISS
Shearman & Sterling Greenwich Air Services, Inc. Greenberg, Traurig, Hoffman,
599 Lexington Avenue P.O. Box 522187 Lipoff,
New York, New York 10022 Miami, Florida 33152-2187 Rosen & Quentel
(212) 848-4000 (305) 526-7000 Citicorp Center
153 E. 53rd Street
New York, New York 10022
(212) 801-9200
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As promptly
as practicable after this Registration Statement becomes effective and the
effective time of the proposed merger of Greenwich Air Services, Inc. with and
into GB Merger Corp., a wholly owned subsidiary of the Registrant as described
herein.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE(2)
<S> <C> <C> <C> <C>
Common Stock, $.16 par value................ 11,000,000 Not applicable $469,472,141.34 $142,264.29
</TABLE>
(1) Based upon the maximum number of shares of Common Stock that the Registrant
may be required to issue in the Merger, calculated as the product of (i)
16,304,205, the aggregate number of shares of Class A and Class B Common
Stock, par value $.01 each per share, of Greenwich outstanding on June 30,
1997 or issuable pursuant to outstanding stock options and (ii) an exchange
ratio of .4901 shares of GE Common Stock for each share of Greenwich Common
Stock computed from a GE share price of $63.25.
(2) Estimated solely for the purpose of calculating the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended, and
computed pursuant to Rule 457(f)(1) thereunder on the basis of the market
value of the Greenwich Common Stock to be exchanged in the Merger, which was
computed, in accordance with Rule 457(c), as the sum of (i) the product of
$28.71875 (the average of the high and low prices per Greenwich Class A
share on June 30, 1997 as reported by The Nasdaq National Market) and
6,418,173, the aggregate number of shares of Greenwich Class A Common Stock
outstanding on June 30, 1997 or issuable pursuant to outstanding stock
options and (ii) the product of $28.84375 (the average of the high and low
prices per Greenwich Class B share on June 30, 1997 as reported by the
Nasdaq National Market and 9,886,032, the aggregate number of shares of
Greenwich Class B Common Stock outstanding on June 30, 1997 or issuable
pursuant to outstanding stock options.
(3) Pursuant to Rule 457(b), the registration fee has been reduced by the
$91,409.53 paid on April 24, 1997, upon the filing under the Securities
Exchange Act of 1934 of preliminary copies of Greenwich's proxy materials
included herein. Therefore, the registration fee payable upon the filing of
this Registration Statement is $48,230.03.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
GREENWICH AIR SERVICES, INC.
4590 NW 36TH STREET, BUILDING 23
MIAMI, FLORIDA 33122
July 8, 1997
Dear Fellow Stockholder:
You are cordially invited to attend the special meeting of stockholders of
Greenwich Air Services, Inc., to be held on Monday, August 11, 1997, at 10:00
a.m. at the Hotel Sofitel, 5800 Blue Lagoon Drive, Miami, Florida.
On March 9, 1997, Greenwich agreed to be acquired by General Electric in a
merger that values your Greenwich shares at $31.00 per share. In this merger,
you will be entitled to receive, in exchange for each share of Greenwich Common
Stock you own, a fraction of a share of General Electric common stock that will
be calculated based on the market value of GE common stock just prior to the
completion of the merger. Instead of GE Common Stock, you may choose to receive
$31.00 in cash per share of Greenwich Class A and Class B Common Stock. In order
to ensure that the merger qualifies as a tax-free reorganization for federal
income tax purposes, no more than approximately 22% of the approximately $271
million total consideration paid to public stockholders in the merger will be
paid in cash.
At the special meeting, you will be asked to adopt the Merger Agreement. A
majority of the outstanding shares of Greenwich Class A Common Stock entitled to
vote at the special meeting must vote for adoption of the Merger Agreement for
the acquisition to be completed. Holders of shares of Greenwich Class B Common
Stock are not entitled to vote on the merger.
I, my wife and my son own 52% of the outstanding shares of Greenwich Class A
Common Stock. As a condition to GE's willingness to enter into the Merger
Agreement, we have agreed to vote all of our shares in favor of the merger. In
addition, GE owns 9.8% of the outstanding shares of Greenwich Class A Common
Stock. Accordingly, adoption of the Merger Agreement at the special meeting is
assured.
If the Merger Agreement is adopted and all other conditions described in the
Merger Agreement have been met or, where permissible, waived, the merger is
expected to occur as soon as possible after the special meeting.
AFTER CAREFUL CONSIDERATION, YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY
DETERMINED THAT THE MERGER IS FAIR TO AND IN THE BEST INTERESTS OF GREENWICH AND
ITS STOCKHOLDERS AND UNANIMOUSLY RECOMMENDS THAT YOU VOTE TO ADOPT THE MERGER
AGREEMENT.
Under Delaware law, you are not entitled to appraisal rights in connection
with the merger.
The accompanying Proxy Statement/Prospectus provides a detailed description
of the proposed merger and its effect on you as a stockholder and on Greenwich.
I urge you to read the enclosed materials carefully. Whether or not you plan to
attend the special meeting, and regardless of the number of shares you own,
please complete, sign and date your proxy card and promptly return it in the
envelope provided.
Sincerely,
Eugene P. Conese, Sr.
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
Neither the Securities and Exchange Commission nor any state securities
regulators have approved the shares of GE Common Stock to be issued under this
Proxy Statement/Prospectus or determined if this Proxy Statement/Prospectus is
accurate or adequate. Any representation to the contrary is a
criminal offense.
This Proxy Statement/Prospectus is dated July 8, 1997 and is first being
mailed to stockholders on or about July 9, 1997.
<PAGE>
GREENWICH AIR SERVICES, INC.
4590 NW 36TH STREET, BUILDING 23
MIAMI, FLORIDA 33122
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON AUGUST 11, 1997
TO THE CLASS A STOCKHOLDERS OF GREENWICH AIR SERVICES, INC.:
A Special Meeting of Stockholders (the "Special Meeting") of Greenwich Air
Services, Inc., a Delaware corporation ("Greenwich"), will be held on Monday,
August 11, 1997, at the Hotel Sofitel, 5800 Blue Lagoon Drive, Miami, Florida,
commencing at 10:00 a.m., for the following purposes:
(1) To consider and vote on a proposal to adopt the Agreement and Plan
of Merger, dated March 9, 1997 (the "Merger Agreement"), by and among
Greenwich, General Electric Company, a New York corporation ("GE"), and GB
Merger Corp., a Delaware corporation and a wholly owned subsidiary of GE
("Merger Sub"), a copy of which is attached as Annex I to the Proxy
Statement/Prospectus accompanying this notice. The Merger Agreement provides
for the merger of Greenwich with and into Merger Sub (the "Merger"),
resulting in Greenwich becoming a wholly owned subsidiary of GE. In the
Merger, each Greenwich stockholder will be entitled to receive, in exchange
for each share of Greenwich Class A Common Stock, par value $.01 per share
(the "Greenwich Class A Common Stock"), and each share of Greenwich Class B
Common Stock, par value $.01 per share (the "Greenwich Class B Common Stock"
and, together with the Greenwich Class A Common Stock, the "Greenwich Common
Stock"), held by such stockholder, that number of shares of common stock,
par value $.16 per share, of GE (the "GE Common Stock") as shall be
determined by dividing $31.00 by the Average GE Share Price (as defined
below) (the "Stock Consideration"); PROVIDED that Greenwich stockholders may
elect to receive from GE cash in an amount equal to $31.00 per share of
Greenwich Common Stock (the "Cash Consideration"). The "Average GE Share
Price" is defined as the average of the last sale price per share of GE
Common Stock on The New York Stock Exchange, Inc. Composite Tape for the 10
consecutive trading days ending on the trading day which is five days prior
to the closing date of the Merger. Under the Merger Agreement, approximately
22%, or $60.1 million of the total merger consideration allocable to
Greenwich Common Stock owned by stockholders other than the immediate
members of the Conese family, certain officers and directors of Greenwich,
and GE and its subsidiaries (the "Public Stockholders"), is available to be
paid in cash to the Public Stockholders. If all Public Stockholders were to
elect all cash, then each Public Stockholder would receive approximately 78%
of his total merger consideration in GE Common Stock and approximately 22%
in cash. To the extent that Greenwich public stockholders elect to receive
more than 78% of their total merger consideration in GE Common Stock, all
Public Stockholders electing cash would receive the amount of cash they
requested. The percentage of Cash Consideration is subject to further
adjustment to the extent necessary to enable the requisite tax opinions to
be delivered.
(2) To consider and transact such other business as may properly be
brought before the Special Meeting or any adjournment thereof.
The affirmative vote of the holders of a majority of the outstanding shares
of Greenwich Class A Common Stock entitled to vote at the Special Meeting is
required to adopt the Merger Agreement. Holders of shares of Greenwich Class B
Common Stock do not have voting rights and are not entitled to vote at the
Special Meeting. As of July 7, 1997, Eugene P. Conese, Sr., the Chairman of the
Board and Chief Executive Officer of Greenwich, Eugene P. Conese, Jr. the
President and Chief Operating Officer of Greenwich, and Anna May Conese, the
spouse of Eugene P. Conese, Sr. and mother of Eugene P. Conese, Jr.
(collectively, the "Conese Stockholders"), owned and held the power to vote
<PAGE>
3,651,749 shares of Greenwich Class A Common Stock, representing 52% of such
outstanding shares. The Conese Stockholders have agreed, among other things, to
vote all of their shares of Greenwich Class A Common Stock in favor of the
Merger Agreement at the Special Meeting. In addition, GE owns 689,000 shares of
Greenwich Class A Common Stock, representing 9.8% of such outstanding shares,
which it intends to vote in favor of the Merger. Accordingly, adoption of the
Merger Agreement at the Special Meeting is assured.
AFTER CAREFUL CONSIDERATION, YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY
DETERMINED THAT THE CONSIDERATION TO BE PAID PURSUANT TO THE MERGER IS FAIR TO
AND IN THE BEST INTERESTS OF GREENWICH AND ITS STOCKHOLDERS. THE BOARD OF
DIRECTORS OF GREENWICH HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND
UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR ADOPTION OF THE MERGER AGREEMENT AT THE
SPECIAL MEETING. You are urged to read the accompanying Proxy
Statement/Prospectus carefully for a description of the Merger Agreement.
Under Delaware law, holders of Greenwich Common Stock are not entitled to
appraisal rights in connection with the Merger.
Only holders of Greenwich Class A Common Stock of record at the close of
business on June 16, 1997 will be entitled to notice of, and to vote at, the
Special Meeting. A list of the holders of Greenwich Class A Common Stock
entitled to vote at the Special Meeting will be open for examination, during
ordinary business hours, at the location of the Special Meeting for 10 days
preceding the Special Meeting.
By Order of the Board of Directors,
MICHAEL A. BUCCI
SECRETARY
Miami, Florida
July 8, 1997
Whether or not you plan to attend the Special Meeting, please complete,
sign, date and return the enclosed proxy card promptly in the enclosed
postage-paid envelope. Stockholders who attend the Special Meeting may revoke
their proxies and vote in person if they desire.
CERTIFICATES FOR YOUR GREENWICH COMMON STOCK SHOULD BE SENT TO CHASEMELLON
SHAREHOLDER SERVICES, L.L.C. AT THIS TIME ONLY IF YOU ARE MAKING A CASH
ELECTION. PLEASE DO NOT ENCLOSE YOUR CERTIFICATES WITH YOUR PROXY CARDS.
2
<PAGE>
TABLE OF CONTENTS
<TABLE>
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SUMMARY................................ 1
The Companies........................ 1
What You Will Receive in the
Merger........................... 2
The Special Meeting.................. 2
Recommendation of the Greenwich Board;
Reasons for the Merger............... 3
Interests of Certain Persons in the
Merger........................... 4
Cash Election Procedures............. 4
Treatment of Stock Options in the
Merger........................... 5
Certain Litigation................. 5
Regulatory Approvals............... 5
Conditions to the Merger........... 5
Termination of the Merger
Agreement........................ 6
Termination Fee.................... 6
No Solicitation of Competing
Transactions..................... 7
Appraisal Rights................... 7
Material Federal Income Tax
Consequences..................... 7
Forward-Looking Statements May
Prove Inaccurate................. 7
SUMMARY SELECTED FINANCIAL DATA........ 8
Selected Historical Financial Data of
Greenwich.......................... 8
Selected Historical Financial Data of
GE................................. 9
Significant Factors Affecting
Operating Results.................. 10
Recent Developments.................. 11
Comparative Per Share Data........... 12
Market Price Data.................... 12
THE SPECIAL MEETING.................... 14
General.............................. 14
Matters to Be Considered at the
Special Meeting.................... 14
Voting and Proxies................... 14
Solicitation of Proxies.............. 15
THE MERGER............................. 15
Background of the Merger............. 15
Reasons for the Merger;
Recommendation of the Greenwich
Board of Directors................. 18
Interests of Certain Persons in the
Merger; Conflicts of Interest........ 19
Fairness Opinion of Salomon
Brothers........................... 22
Form of the Merger................... 26
Merger Consideration................. 26
Effective Time....................... 27
Description of Election Procedures... 28
Procedures for Exchange of Greenwich
Common Stock Certificates.......... 29
Anticipated Accounting Treatment..... 30
Plans for Greenwich After the
Merger............................. 30
Certain Other Effects of the
Merger............................. 30
Source and Amount of Funds and Other
Consideration...................... 31
Forward-Looking Statements May Prove
Inaccurate......................... 31
Material Federal Income Tax
Consequences....................... 31
Blue Sky Laws........................ 33
Appraisal Rights..................... 34
Certain Litigation................... 34
THE MERGER AGREEMENT................... 34
Certain Representations and
Warranties......................... 34
Conduct of Business Pending the
Merger............................. 35
No Solicitation of Competing
Transactions....................... 35
Indemnification and Insurance........ 36
Stock Exchange Listing............... 37
Conditions to Consummation of the
Merger............................. 37
Termination; Effects of
Termination........................ 38
Expenses............................. 40
Amendment; Waiver.................... 40
THE STOCK OPTION AND VOTING
AGREEMENT............................ 40
Agreement to Vote in Favor of the
Merger............................. 40
Option to Purchase the Shares of
Greenwich Common Stock Owned by
the Conese Stockholders............ 41
Certain Representations and
Warranties......................... 42
Certain Covenants.................... 42
Termination.......................... 43
REGULATORY MATTERS..................... 43
COMPARISON OF RIGHTS OF GREENWICH
STOCKHOLDERS AND
GE STOCKHOLDERS...................... 44
Authorized Capital Stock............. 44
Stockholder Voting Rights............ 44
Special Meetings of Stockholders;
Consent to Actions of Stockholders in
Lieu of Meeting...................... 45
Business Combinations................ 46
Business Conducted at Stockholders'
Meetings........................... 47
Dividends............................ 47
Dissenters' Appraisal Rights......... 47
Warrants or Options.................. 47
Number and Term of Directors......... 47
Nomination and Election of
Directors.......................... 48
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Classification of the Board of
Directors.......................... 48
Removal of Directors................. 49
Indemnification...................... 49
DESCRIPTION OF GE'S CAPITAL STOCK...... 50
LEGAL MATTERS.......................... 50
EXPERTS................................ 50
FUTURE STOCKHOLDER PROPOSALS........... 50
WHERE YOU CAN FIND MORE INFORMATION.... 51
</TABLE>
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ANNEX I Agreement and Plan of Merger
ANNEX II Opinion of Salomon Brothers Inc
ANNEX III Stock Option and Voting Agreement
</TABLE>
ii
<PAGE>
SUMMARY
THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION FROM THIS DOCUMENT AND MAY NOT
CONTAIN ALL OF THE INFORMATION THAT IS IMPORTANT TO YOU. TO UNDERSTAND THE
MERGER FULLY AND FOR A MORE COMPLETE DESCRIPTION OF THE LEGAL TERMS OF THE
MERGER, YOU SHOULD READ CAREFULLY THIS ENTIRE DOCUMENT AND THE DOCUMENTS TO
WHICH WE HAVE REFERRED YOU. SEE "WHERE YOU CAN FIND MORE INFORMATION" (PAGE
51). FOR THE LOCATION OF DEFINITIONS OF CAPITALIZED TERMS USED IN THIS PROXY
STATEMENT/PROSPECTUS, PLEASE SEE "LIST OF DEFINED TERMS" (PAGE 53).
IN THE MERGER, GREENWICH WILL MERGE WITH AND INTO GB MERGER CORP. GB
MERGER CORP. WILL BE THE SURVIVING CORPORATION IN THE MERGER AND WILL
CONTINUE AS A SUBSIDIARY OF GE.
THE MERGER AGREEMENT IS ATTACHED AS ANNEX I TO THIS DOCUMENT. WE
ENCOURAGE YOU TO READ THE MERGER AGREEMENT, AS IT IS THE LEGAL DOCUMENT THAT
GOVERNS THE MERGER.
THE COMPANIES
GREENWICH AIR SERVICES, INC.
4590 NW 36th Street, Building 23
Miami, Florida 33122
(305) 526-7000
Greenwich is the largest and most diversified independent gas turbine
engine repair and overhaul company in the world. Greenwich provides repair
and overhaul services for gas turbine and turboprop aircraft engines used to
power various commercial and military aircraft. Greenwich also services
other types of engines used for different industrial and marine
applications. In addition, Greenwich manages government and military
services and maintenance programs and provides for the sale, management,
operation and refurbishment of gas turbine power plants in various countries
around the world.
THE GREENWICH -- UNC MERGER. On February 13, 1997, Greenwhich had
agreed to acquire UNC Incorporated for cash and stock. On March 9, 1997, at
the same time that GE and Greenwich entered into the Merger Agreement,
Greenwich and UNC amended their original agreement to provide that Greenwich
would acquire UNC after GE acquires Greenwich. The GE-Greenwich merger is
not conditioned upon the successful completion of the Greenwich-UNC merger.
UNC is in the business of providing components and repair services to
the aviation industry. Following the acquisition of Greenwich by GE, and if
the merger provided for in the Greenwich-UNC agreement is completed, GE will
also acquire UNC. UNC stockholders will receive $15.00 in cash for each
share of UNC Common Stock held. In total, the proposed value of the UNC
transaction is approximately $330 million. The UNC merger is subject to
certain conditions, including regulatory approval and the approval of the
UNC stockholders.
In the event the Merger Agreement is terminated for any reason, the UNC
merger will proceed under the same terms and conditions of the original
merger plan between Greenwich and UNC, with certain minor exceptions.
GENERAL ELECTRIC COMPANY
3135 Easton Turnpike
Fairfield, Connecticut 06431-0001
(203) 373-2999
1
<PAGE>
GE is one of the largest and most diversified industrial corporations in
the world. GE has engaged in developing, manufacturing and marketing a wide
variety of products for the generation, transmission, distribution, control
and utilization of electricity since its incorporation in 1892. GE's
businesses include producing and servicing lighting products, home
appliances, medical diagnostic imaging systems, industrial components, power
generation equipment, aircraft jet engines, and plastics and other
materials.
The National Broadcasting Company, Inc., a GE subsidiary, furnishes
network television services, operates television stations and provides cable
programming and distribution services. Through another subsidiary, GE offers
a broad array of financial services and satellite communications.
GB MERGER CORP.
3135 Easton Turnpike
Fairfield, Connecticut 06431-0001
(203) 373-2999
GB Merger Corp. is a company formed by GE on March 6, 1997 for use in
the merger. This is the only business of GB Merger Corp.
WHAT YOU WILL RECEIVE IN THE MERGER
(PAGE 26)
After the Merger Agreement is adopted you will receive, for each share
of Greenwich Common Stock you own immediately prior to the merger,
approximately $31.00 worth of GE Common Stock. Instead of receiving the
shares of GE Common Stock, you may elect to receive $31.00 per share in
cash. You will also receive cash instead of fractional shares of GE Common
Stock.
EXAMPLE: IF YOU CURRENTLY OWN 100 SHARES OF GREENWICH COMMON STOCK AND YOU
DO NOT ELECT TO RECEIVE THE MERGER CONSIDERATION IN CASH, AND IF THE AVERAGE
GE SHARE PRICE IS $61.00 (FOR PURPOSES OF THIS EXAMPLE ONLY), THEN AFTER THE
MERGER YOU WOULD BE ENTITLED TO RECEIVE 50 SHARES OF GE COMMON STOCK, PLUS
$50.00 IN CASH.
However, in order to ensure that the merger qualifies as a tax-free
reorganization, if all public stockholders (holders other than GE, members
of the Conese family and certain Greenwich officers and directors) were to
elect to receive cash for all of their shares, then each public stockholder
would receive 78% of their merger consideration in GE Common Stock and 22%
in cash. If Greenwich public stockholders elect to receive more than 78% of
their total merger consideration in GE Common Stock, all public stockholders
electing cash would receive the amount of cash they requested.
The number of shares of GE Common Stock you will receive will be
determined by dividing $31.00 by the "average GE share price." The "average
GE share price" is the average of the last sale price per share of GE Common
Stock for the 10 consecutive trading days ending on the trading day which is
five days prior to the completion of the merger.
Because of the need for regulatory review, the valuation period for
determining the number of shares of GE Common Stock issued in the merger
could occur after the special meeting. As a result, the number of shares of
GE Common Stock issuable for each share of Greenwhich Common Stock may not
be known at the time you vote on the merger. You may call, toll-free, (888)
216-9369 for further information concerning the estimated number of shares
of GE Common Stock that will be issued in exchange for your Greenwich Common
Stock.
THE SPECIAL MEETING (PAGE 14)
At the special meeting, the holders of Greenwich Class A Common Stock
will be asked to adopt the Merger Agreement. Each share is entitled to one
vote at the special meeting. Holders of Greenwich Class B Common Stock are
not entitled to vote on the Merger Agreement.
The close of business on June 16, 1997 is the record date for
determining if you are entitled to vote at the special meeting.
As a condition to GE's willingness to enter into the Merger Agreement,
GE and members of the Conese family entered into a
2
<PAGE>
Stock Option and Voting Agreement. Each of these stockholders, without any
additional consideration being paid to them,
- has agreed to vote all of his or her shares in favor of the merger,
and
- has granted GE an irrevocable option to purchase all of his or her
shares for the same consideration that is to be paid under the Merger
Agreement.
The Stock Option and Voting Agreement covers a total of 3,651,749 shares
of Greenwich Class A Common Stock which is 52% of such shares outstanding on
the record date. In addition, GE owns 689,000 shares of Greenwich Class A
Common Stock, which is 9.8% of the shares outstanding on the record date. As
a result, adoption of the Merger Agreement at the special meeting is
assured.
REASONS FOR THE MERGER; RECOMMENDATION OF THE GREENWICH BOARD (PAGE 18)
The Greenwich Board unanimously approved the Merger Agreement and the
merger and recommends that you vote to adopt the Merger Agreement. The
Greenwich Board believes that the merger is in the best interests of
Greenwich and its stockholders. In reaching its decision, the Greenwich
Board considered a number of factors, including the following:
- the written opinion of Salomon Brothers that the merger consideration
is fair to the stockholders of Greenwich from a financial point of
view. The full text of Salomon Brothers' opinion is attached as Annex
II to this document, and you are urged to read it carefully and in its
entirety. See page 22;
- the Greenwich Board's belief that the analyses of Salomon Brothers
supported the Greenwich Board's conclusion that the merger
consideration is fair from a financial point of view to, and is in the
best interests of, Greenwich stockholders, both in terms of the
immediate financial consideration to be received and the potential for
future appreciation in value of the GE Common Stock.
- the relative trading prices and volumes (as well as prospects for
future growth in value) of Greenwich Class A Common Stock and
Greenwich Class B Common Stock (with Greenwich as a stand-alone entity
and taking into consideration the proposed merger with UNC);
- the results of operations, financial condition, competitive position
and prospects of Greenwich (as a stand-alone entity and taking into
consideration the proposed merger with UNC) and GE, both on an
historical and future basis and as separate and combined entities;
- the opportunity for Greenwich's stockholders to become stockholders of
GE, which the Greenwich Board viewed as one of the largest, most
diversified and financially stable enterprises in the world;
- the price certainty of the proposed merger--$31.00 per share
regardless of stock market fluctuations prior to the closing of the
merger;
- the strength of GE's common stock and its comparative price stability
and relatively low volatility when compared with broad market indices,
in contrast to the greater volatility and risk to holders of
Greenwich's Common Stock;
- the benefits to Greenwich's employees and customers of the merger of
Greenwich's business with GE's businesses; and
- the structure of the merger, which permits Greenwich stockholders to
exchange their Greenwich Common Stock for GE Common Stock on a tax-
free basis, except to the extent that they elect to receive cash. For
a more comprehensive description of the federal income tax
consequences of the merger, see page 30.
3
<PAGE>
INTERESTS OF CERTAIN PERSONS IN THE MERGER (PAGE 19)
In considering the recommendation of the Greenwich Board regarding the
merger, you should be aware of the interests which certain officers and
directors of Greenwich have in the merger that are different from your and
their interests as stockholders.
At July 7, 1997, approximately 141,725 shares of Greenwich Class A
Common Stock and approximately 285,475 shares of Greenwich Class B Common
Stock were subject to options granted to employees and directors of
Greenwich under various stock option plans. The stock options held by
Greenwich's executive officers and directors represented less than 1% of the
Greenwich Common Stock on a fully diluted basis.
At the time of signing the Merger Agreement, Eugene P. Conese, Sr. and
GE entered into a consulting and non-competition agreement. Mr. Conese, Sr.
agreed to act as a consultant to GE and not to compete with the engine
services businesses of Greenwich or GE for five years after the completion
of the merger. GE will pay Mr. Conese, Sr., $1 million per year and make an
annual $1 million contribution in his name to the charitable organization of
his choice.
Greenwich has entered into retention agreements with a number of
Greenwich executives (not including Messrs. Conese, Sr. and Conese, Jr.).
Under these retention agreements, if the merger with GE is completed,
Greenwich or its successor in the merger will pay these executives severance
benefits in the event that they are discharged during the year after the
merger is completed.
Under his current employment agreement, Mr. Conese, Sr. will be entitled
to $1.00 less than three times the average of his gross income for the past
five years when he resigns upon completion of the merger. Mr. Conese, Jr.
also has an employment agreement, under which he is entitled to $1.00 less
than three times the average of his gross income for the past five years if
he resigns due to a constructive discharge in the year after the merger. Mr.
Conese, Jr. and GE are currently in discussions concerning the nature of his
duties and responsibilities at Greenwich following the merger and his
compensation.
Under his existing employment arrangements, Mr. Conese, Sr. will receive
deferred compensation in the amount of $736,667 on his retirement upon
consummation of the merger. Under his existing employment arrangements, Mr.
Conese, Jr. is entitled to a deferred compensation payment of $146,667 if
the constructive discharge provisions of his employment agreement are
triggered.
The Greenwich Board recognized all the interests described above and
concluded that these interests did not detract from the fairness of the
merger to Greenwich stockholders who are not officers or directors of
Greenwich.
CASH ELECTION PROCEDURES (PAGE 28)
If you do not choose cash, you will receive GE Common Stock (and cash
for any fractional interests in GE Common Stock). We have provided you with
a yellow form of election. To receive cash you must:
- properly complete and sign the form of election;
- enclose you Greenwich stock certificates along with the form of
election; and
- return the form of election to ChaseMellon Shareholder Services,
L.L.C. no later than the last business day before the completion of
the merger.
PLEASE DO NOT ENCLOSE YOUR CERTIFICATE WITH YOUR PROXY CARDS.
If public stockholders of Greenwich elect to receive more than
approximately 22% of the total merger consideration in cash, GE will pay for
each share electing cash with a mixture of cash and GE Common Stock so that
the amount of cash paid for each such share will be equal. GE may further
reduce this percentage if necessary to ensure the tax-
4
<PAGE>
free status of the merger. As a result, there is no guarantee that you will
receive the amount of cash that you elect.
EXAMPLE: IF YOU CURRENTLY OWN 100 SHARES OF GREENWICH COMMON STOCK AND
YOU ELECT TO RECEIVE CASH FOR ALL OF YOUR SHARES, AND HOLDERS OF 50% OF THE
GREENWICH COMMON STOCK ELECT TO RECEIVE CASH, AND IF THE AVERAGE GE SHARE
PRICE IS $61.00 (FOR PURPOSES OF THIS EXAMPLE ONLY), THEN AFTER THE MERGER
YOU WOULD BE ENTITLED TO RECEIVE 28 SHARES OF GE COMMON STOCK, PLUS
$1,392.00 IN CASH.
TREATMENT OF STOCK OPTIONS IN THE MERGER (PAGE 19)
Each employee stock option outstanding at the time of the merger will be
canceled, and its holder will be entitled to receive an amount equal to the
product of
- the number of shares of Greenwich Common Stock previously subject to
the stock option, and
- the excess, if any, of $31.00 over the exercise price of the stock
option.
This amount will be paid in cash or, if a holder of the stock option so
elects, in GE Common Stock.
CERTAIN LITIGATION (PAGE 34)
Greenwich and members of its Board of Directors have been named as
defendants in a putative class action lawsuit filed in the Court of Chancery
of the State of Delaware, County of New Castle. The complaint alleges that
Greenwich's Board failed to maximize stockholder value and otherwise
breached its fiduciary duties. The complaint seeks, among other things, to
enjoin the completion of the merger and unspecified money damages. Greenwich
believes that this lawsuit is without merit and intends to defend it
vigorously.
In addition, GE is the subject of a putative class action lawsuit
brought by a stockholder of UNC and filed in the Superior Court of the State
of Delaware, County of New Castle. The complaint alleges that GE engaged in
economic duress and tortious interference with the original UNC-Greenwich
merger agreement, and seeks $18 million in damages. GE believes that this
lawsuit is without merit and intends to defend it vigorously.
REGULATORY APPROVALS (PAGE 43)
The Hart-Scott-Rodino Antitrust Improvements Act of 1976 prohibits
Greenwich and GE from completing the merger until GE and Greenwich have
furnished certain information and materials to the Antitrust Division of the
Department of Justice and the Federal Trade Commission and the required
waiting period has ended. GE and Greenwich each filed the required
notification and report forms with the FTC and the Antitrust Division.
On April 25, 1997, GE, Greenwich and UNC received requests for
additional information from the Antitrust Division. By July 1, 1997, GE,
Greenwich and UNC had each certified that they were in substantial
compliance with these requests for additional information. Accordingly,
unless the Antitrust Division disagrees as to whether substantial compliance
has been achieved, the waiting period will expire on July 21, 1997.
CONDITIONS TO THE MERGER (PAGE 37)
GE and Greenwich will not complete the merger unless a number of
conditions are satisfied or waived by them. These include the following:
- the holders of a majority of the shares of Greenwich Class A Common
Stock must approve the merger, which is assured as a result of the
Stock Option and Voting Agreement with the Conese stockholders;
- the waiting period applicable to the merger under the HSR Act must
come to an end or be terminated;
- there must be no injunction or order that prohibits the merger;
5
<PAGE>
- the shares of GE Common Stock to be issued in the merger must be
authorized for listing on the New York Stock Exchange;
- the relevant governmental authorities must approve the merger, other
than the governmental authority that must consent to the assignment of
the Greenwich FAA Certificate;
- Greenwich, GE and GB Merger Corp. must perform all of their
obligations under the Merger Agreement;
- Greenwich and GE must each certify to the other that its
representations and warranties contained in the Merger Agreement are
true and correct;
- GE must receive a "cold comfort" letter from Deloitte & Touche LLP;
- GE and Greenwich must receive opinions from their respective tax
counsel that the merger will qualify as a tax-free reorganization; and
- GE must receive an agreement, from any person who may be deemed to
have become an affiliate of Greenwich pursuant to Rule 145 under the
Securities Act of 1933 after the Merger Agreement was signed but
before the merger is completed, stating that such affiliate will
comply with Rules 144 and 145 under the Securities Act.
The party entitled to the benefit of some of these conditions may waive
these conditions.
TERMINATION OF THE MERGER AGREEMENT (PAGE 38)
Greenwich and GE can agree at any time to terminate the Merger Agreement
without completing the merger, and the Merger Agreement may be terminated by
either company if any of the following occurs:
- the waiting period under the HSR Act does not end or is not terminated
by September 30, 1997;
- a court or other governmental authority permanently prohibits the
merger;
- the merger is not completed by September 30, 1997;
- the holders of Greenwich Class A Common Stock do not approve the
merger; or
- either party materially breaches the Merger Agreement and does not
cure such breach within 30 days of receiving notice of it.
Greenwich may also terminate the Merger Agreement if it notifies GE of a
more favorable competing offer. If the waiting period under the HSR Act has
ended and there is no order preventing the merger or preventing GE from
exercising its option to buy the shares of Greenwich Common Stock owned by
the Conese stockholders, then the termination will be effective 15 days
following the date of the notice. If the waiting period under the HSR Act
has not ended or there is an order in effect preventing the merger or
preventing GE from exercising its option to buy the shares of Greenwich
Common Stock owned by the Conese stockholders, then the termination will be
effective on the later of June 30, 1997 and 45 days following the date of
the notice.
In addition, GE may terminate the Merger Agreement if Greenwich notifies
GE that a third party has made a more favorable competing offer.
TERMINATION FEE (PAGE 38)
The Merger Agreement requires GE to pay Greenwich a termination fee of
$33.5 million if the Merger Agreement is terminated because the HSR Act
waiting period has not ended or been terminated by September 30, 1997, or
because a court or other governmental authority permanently prohibits the
merger pursuant to Section 7 of the Clayton Act of 1914 or the Federal Trade
Commission Act of 1914.
6
<PAGE>
If, within a year after the termination of the Merger Agreement under
the circumstances described above, Greenwich enters into an acquisition
transaction at a higher price than that offered in the GE-Greenwich
transaction, then Greenwich must return the termination fee to GE.
NO SOLICITATION OF COMPETING TRANSACTIONS (PAGE 35)
The Merger Agreement restricts Greenwich's ability to entertain or
encourage any alternative acquisition transactions with third parties beyond
what is required by the Greenwich Board's fiduciary duties. Greenwich must
promptly notify GE if it receives offers or proposals for any such
alternative transactions.
APPRAISAL RIGHTS (PAGE 34)
Greenwich stockholders have no right to an appraisal of the value of
their shares in connection with the merger.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES (PAGE 31)
It is a condition to the completion of the merger that Greenwich and GE
each receive a tax opinion from their outside counsel. Those opinions must
conclude that the transaction will be one in which you will generally be
taxed on gain from the exchange of Greenwich shares only to the extent of
the cash you receive.
TAX MATTERS ARE VERY COMPLICATED AND THE TAX CONSEQUENCES OF THE MERGER
TO YOU WILL DEPEND ON THE FACTS OF YOUR OWN SITUATION. YOU SHOULD CONSULT
YOUR TAX ADVISORS TO UNDERSTAND FULLY THE TAX CONSEQUENCES OF THE MERGER TO
YOU.
FORWARD-LOOKING STATEMENTS MAY PROVE
INACCURATE (PAGE 31)
GE and Greenwich have made forward-looking statements in this document
and in documents to which we have referred you. These statements are subject
to risks and uncertainties, and there can be no assurance that these
statements will prove to be correct. Forward-looking statements include
assumptions as to how GE and Greenwich may perform in the future. You will
find many of these statements in the following sections:
- "SUMMARY--Recent Developments."
- "THE MERGER--Reasons for the Merger; Recommendation of the Greenwich
Board of Directors."
- "THE MERGER--Fairness Opinion of Salomon Brothers Inc."
Also, when we use words like "believes," "expects," "anticipates" or
similar expressions, we are making forward-looking statements. For those
statements, GE and Greenwich claim the protection of the safe harbor for
forward-looking statements contained in the Private Securities Litigation
Reform Act of 1995.
You should understand that the following important factors, in addition
to those discussed elsewhere in this document and in the documents which we
have referred you, could affect the future results of GE and Greenwich and
could cause those results to differ materially from those expressed in our
forward-looking statements. These factors include: materially adverse
changes in economic conditions and in the markets served by GE and
Greenwich; the failure of certain of Greenwich's customers to renew their
contracts with Greenwich; and a significant delay in the expected completion
of the merger.
7
<PAGE>
SUMMARY SELECTED FINANCIAL DATA
Greenwich and GE are providing the following financial information to aid
you in your analysis of the financial aspects of the merger. The financial
information is an unaudited summary of each Company's respective audited
financial statements. As this information is only a summary, you should read it
in conjunction with the historical financial statements (and related notes) of
Greenwich and GE contained in the annual reports and other information that
Greenwich and GE have filed with the Securities and Exchange Commission (the
"Commission"). See "WHERE YOU CAN FIND MORE INFORMATION" on page 51.
Greenwich and GE report quarterly and annual earnings results using methods
required by generally accepted accounting principles ("GAAP"). Greenwich
prepares its financial statements on the basis of a fiscal year beginning on
October 1 and ending on September 30 and GE does so on the basis of a fiscal
year beginning on January 1 and ending on December 31.
SELECTED HISTORICAL FINANCIAL DATA OF GREENWICH
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SIX
MONTHS ENDED
FISCAL YEARS ENDED SEPTEMBER 30, MARCH 31,
----------------------------------------------------- --------------------
1992 1993 1994 1995 1996 1996 1997
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
(AUDITED) (UNAUDITED)
HISTORICAL OPERATING DATA:
Net sales.......................... $ 62,009 $ 69,467 $ 105,233 $ 196,319 $ 397,913 $ 118,625 $ 388,663
Gross profit....................... 12,779 14,391 17,260 31,362 54,957 18,703 49,112
Income from operations............. 6,902 8,698 10,254 17,725 31,924 10,961 32,449
Interest expense................... 2,950 3,039 4,759 7,950 12,654 3,635 14,252
Net income......................... 2,506 3,374 3,346 6,202 11,793 4,418 11,080
Fully diluted weighted average
number of shares................. 9,648,000 8,000,000 12,574,654 12,836,406 14,253,294 12,844,590 17,009,544
Fully diluted earnings per share... 0.26 0.42 0.33 0.54 0.83 0.35 0.65
Cash dividends declared per share
of common stock.................. -- -- -- -- .01 0.010 0.012
OTHER FINANCIAL DATA:
EBITDA............................. 7,803 9,696 11,609 19,931 37,657 11,980 37,771
Cash flows provided (used) by
operating activities............. (1,421) (921) (3,341) 6,680 (8,232) (6,418) (63,521)
Cash flows provided (used) by
investing activities............. (1,791) (5,127) (42,763) (2,724) (234,037) (1,737) (6,592)
Cash flow provided (used) by
financing activities............. 3,073 6,309 46,144 (4,246) 242,423 8,243 69,959
Depreciation and amortization...... 807 950 1,285 1,815 5,229 1,019 5,204
Capital Expenditures............... 1,791 5,128 1,691 2,724 3,956 1,737 6,592
BALANCE SHEET DATA (AT PERIOD
ENDING):
Working capital.................... 39,430 46,010 76,078 87,829 273,595 98,178 338,186
Total assets....................... 59,102 67,708 138,423 185,620 625,080 188,298 709,947
Total debt......................... 29,411 35,686 74,985 67,880 236,516 78,356 303,877
Stockholders' equity............... 13,126 15,951 27,963 36,788 139,047 50,873 152,566
</TABLE>
8
<PAGE>
SELECTED HISTORICAL FINANCIAL DATA OF GE
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE
MONTHS ENDED
FISCAL YEARS ENDED DECEMBER 31, MARCH 31,
----------------------------------------------------- --------------------
1992 1993 1994 1995 1996 1996 1997
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
(AUDITED) (UNAUDITED)
GENERAL ELECTRIC COMPANY AND CONSOLIDATED
AFFILIATES
Revenues...................................... $ 53,051 $ 55,701 $ 60,109 $ 70,028 $ 79,179 $ 17,098 $ 20,157
Earnings from continuing operations........... 4,137 4,184 5,915 6,573 7,280 1,517 1,677
Earnings (loss) from discontinued
operations.................................. 588 993 (1,189) -- -- -- --
Effect of accounting change................... -- (862) -- -- -- -- --
Net earnings.................................. 4,725 4,315 4,726 6,573 7,280 1,517 1,677
Dividends declared............................ 1,985 2,229 2,546 2,838 3,138 765 855
Earned on average share owners' equity........ 20.9% 17.5% 18.1% 23.5% 24.0% 5.2% 5.4%
PER SHARE
Earnings from continuing operations......... $1.21 $ 1.22 $ 1.73 $ 1.95 $ 2.20 $ 0.46 $ 0.51
Earnings (loss) from discontinued
operations................................ 0.17 0.29 (0.35) -- -- -- --
Effect of accounting change................. -- (0.25) -- -- -- -- --
Net earnings................................ 1.38 1.26 1.38 1.95 2.20 0.46 0.51
Dividends declared.......................... 0.58 0.6525 0.745 0.845 0.95 0.23 0.26
Total assets of continuing operations......... 135,472 166,413 185,871 228,035 272,402 230,213 270,068
Long-term borrowings.......................... 25,298 28,194 36,979 51,027 49,246 52,306 46,364
Shares outstanding--average (in thousands).... 3,428,792 3,415,958 3,417,476 3,367,624 3,307,394 3,326,267 3,285,024
</TABLE>
9
<PAGE>
SIGNIFICANT FACTORS AFFECTING OPERATING RESULTS
Sometimes financial results reported in accordance with GAAP include unusual
or infrequent events and factors which are not expected to occur regularly in
the future. Examples of these events and factors include gains or losses on the
sale of businesses, the costs of completing major acquisitions and of other
business development activities, and the costs of business restructurings.
Certain unusual or infrequent events and transactions, as well as other
significant factors and trends, which may be helpful in understanding the past
performance and future prospects of Greenwich and GE, are described briefly
below. The following discussion should be read with the "SUMMARY SELECTED
FINANCIAL DATA" of Greenwich and GE included on the previous pages and with the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" of Greenwich and GE that are contained in the annual reports and
other information that Greenwich and GE have filed with the Commission. See
"WHERE YOU CAN FIND MORE INFORMATION" on page 51.
GREENWICH. In considering the Selected Historical Financial Data of
Greenwich, you should be aware that:
- data are presented on the basis of a fiscal year which ends on September
30;
- all per share data has been restated to give effect to the issuance on May
8, 1996 of one share of Class B Common Stock for each share of Class A
Common Stock then outstanding;
- the information presented for fiscal year 1994 includes Greenwich's
initial public offerings of common stock and 8% Convertible Subordinated
Debentures and the subsequent acquisition of the assets of Greenwich's
Connecticut operations;
- the information presented for fiscal year 1996 includes Greenwich's public
offerings of Class B Common Stock and 10 1/2% Senior Notes and the
concurrent acquisition of the engine services business of Aviall, Inc. and
Aviall Services, Inc.; and
- Greenwich has included EBITDA under the Other Financial Data because it is
a measurement commonly used by certain investors to analyze and compare
companies. EBITDA stands for Earnings Before Interest, Taxes, Depreciation
and Amortization and is usually arrived at by adding income taxes,
interests expense, depreciation and amortization to net income. However,
it should be noted that the EBITDA information included by Greenwich may
not be comparable to the EBITDA information presented by other companies.
GE. In considering the selected Historical Financial Data of GE, you should
be aware that:
- the consolidated financial statements represent the adding together of all
affiliates -- companies that GE directly or indirectly controls, either
through majority ownership or otherwise;
- results of associated companies -- generally companies that are 20% to 50%
owned by GE and over which GE, directly or indirectly, has significant
influence -- are included in the financial statements on a "one-line"
basis;
- discontinued operations reflect the results of Kidder, Peabody, a
securities broker-dealer wholly owned by GE in 1994, 1993 and 1992, and
the results of GE's aerospace businesses in 1993 and 1992;
- the 1993 accounting change represents the adoption of SFAS No. 112,
EMPLOYERS' ACCOUNTING FOR POSTEMPLOYMENT BENEFITS; and
- GE per share financial data has been restated to reflect a 2-for-1 stock
split effective on April 28, 1997.
10
<PAGE>
RECENT DEVELOPMENTS
GREENWICH. On February 13, 1997, Greenwich agreed to acquire UNC for a
combination of Greenwich Class B Common Stock and cash which would have valued
UNC at between approximately $310 million and $355 million (depending on the
"average market price" of Greenwich Class B Common Stock on the closing date of
the UNC Merger). That transaction was conditioned upon receipt of the approval
of the stockholders of both Greenwich and UNC, and upon Greenwich being able to
arrange the requisite financing. UNC had operating income and earnings per share
in the fiscal year ended December 31, 1996 of $41.7 million and $.35,
respectively.
In deciding to enter into the Merger Agreement with GE, the Greenwich Board
determined that it was in the best interests of Greenwich and its stockholders
to forgo the opportunity to remain independent and acquire UNC under the terms
of the original UNC Merger Agreement, as described below. ACCORDINGLY, GREENWICH
STOCKHOLDERS ARE NOT BEING ASKED TO CHOOSE BETWEEN A GE-GREENWICH TRANSACTION
AND A UNC-GREENWICH TRANSACTION. IN THE EVENT THAT THE GE-GREENWICH TRANSACTION
WERE NOT TO PROCEED FOR ANY REASON AND UNLESS THE ORIGINAL UNC MERGER AGREEMENT
WAS OTHERWISE TERMINATED IN ACCORDANCE WITH ITS TERMS, GREENWICH AND UNC WOULD
DISSEMINATE A NEW JOINT PROXY STATEMENT/PROSPECTUS DESCRIBING THE TERMS OF A
GREENWICH-UNC COMBINATION.
GE. On April 28, 1997, GE amended its Certificate of Incorporation to
increase GE's authorized Common Stock from 2,200,000,000 shares, par value $.32
per share, to 4,400,000,000 shares, par value $.16 per share, and, in so doing,
split the GE Common Stock (including outstanding and treasury shares) on a
2-for-1 basis. See "WHERE YOU CAN FIND MORE INFORMATION" on page 51.
11
<PAGE>
COMPARATIVE PER SHARE DATA
The following tables present historical per share data of Greenwich and GE.
The data presented below should be read in conjunction with the historical
financial statements of Greenwich and GE incorporated by reference in this
document. Only the earnings per share data are calculated using the primary
weighted average of shares outstanding. Because the number of shares of GE
Common Stock to be issued in the merger will not be known until five business
days prior to the completion of the merger, Greenwich equivalent per share data
cannot be computed at this time. That information will be available via
telephone, toll-free, at (888) 216-9369. Hypothetical Greenwich equivalent per
share data is presented below using the closing sale price of a share of GE
Common Stock on July 2, 1997 and a resulting hypothetical exchange ratio of
.4588. The hypothetical Greenwich equivalent per share data was calculated by
multiplying the actual GE per share data by the hypothetical exchange ratio of
.4588.
<TABLE>
<CAPTION>
THREE MONTHS
SIX MONTHS ENDED ENDED
MARCH 31, 1997 MARCH 31, 1997 MARCH 31, 1997
------------------- ------------------- -------------------
<S> <C> <C> <C> <C>
(UNAUDITED)
<CAPTION>
GREENWICH GREENWICH GE
CLASS A CLASS B COMMON GREENWICH
COMMON STOCK COMMON STOCK STOCK EQUIVALENT
------------------- ------------------- ------------------- ---------------
<S> <C> <C> <C> <C>
Earnings per share............... $ .65 $ .65 $ .51 $ .23
Dividends per share, net......... .012 .012 .26 .12
Book value per share............. 9.10 9.10 9.27 4.25
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED
SEPTEMBER 30, 1996 SEPTEMBER 30, 1996 DECEMBER 31, 1996
------------------- ------------------- -------------------
<S> <C> <C> <C> <C>
(AUDITED)
<CAPTION>
GREENWICH GREENWICH GE
CLASS A CLASS B COMMON GREENWICH
COMMON STOCK COMMON STOCK STOCK EQUIVALENT
------------------- ------------------- ------------------- ---------------
<S> <C> <C> <C> <C>
Earnings per share............... $ .86 $ .86 $ 2.20 $ 1.01
Dividends per share, net......... .01 .01 .95 .44
Book value per share............. 8.52 8.52 9.41 4.32
</TABLE>
MARKET PRICE DATA
The following table presents certain historical trading and dividend
declaration information for the GE Common Stock and Greenwich Class A and Class
B Common Stock. Because the number of shares of GE Common Stock to be issued in
the merger will not be known until five business days prior to the completion of
the merger, for each share of Greenwich Common Stock that a Greenwich
stockholder owns, such holder may receive more or less than the hypothetical
exchange ratio of .4588 shares of GE Common Stock.
12
<PAGE>
<TABLE>
<CAPTION>
GE GREENWICH GREENWICH
COMMON STOCK CLASS A CLASS B
------------------------------------ ------------------------------------ ----------
(IN $) (IN $)
HIGH LOW DIV HIGH LOW DIV HIGH
----------- ------ --------- ------ ----------- --------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
1997
- ------------------------------------------
Third Quarter (Through July 7).......... 693/4 643/16 -- 291/8 285/8 -- 295/16
Second Quarter.......................... 681/4 489/16 .26 291/4 263/4 -- 293/8
First Quarter........................... 543/16 4715/16 .26 301/8 211/4 .012 301/2
1996
- ------------------------------------------
Fourth Quarter.......................... 531/16 451/4 .26 301/2 163/4 -- 25
Third Quarter........................... 46 3815/16 .23 291/4 17 -- 213/4
Second Quarter.......................... 441/16 371/16 .23 413/4 181/8 -- 333/4
First Quarter........................... 401/4 343/4 .23 223/16 103/4 .01 --
1995
- ------------------------------------------
Fourth Quarter.......................... 369/16 301/2 .23 1113/16 73/4 -- --
Third Quarter........................... 325/16 283/16 .205 105/16 51/8 -- --
Second Quarter.......................... 295/8 2611/16 .205 55/16 39/16 -- --
First Quarter........................... 28 2415/16 .205 33/4 3 -- --
<CAPTION>
(IN $)
LOW DIV
----- ---------
<S> <C> <C>
1997
- ------------------------------------------
Third Quarter (Through July 7).......... 285/8 --
Second Quarter.......................... 27 --
First Quarter........................... 203/8 .012
1996
- ------------------------------------------
Fourth Quarter.......................... 153/4 --
Third Quarter........................... 131/2 --
Second Quarter.......................... 161/2 --
First Quarter........................... -- --
1995
- ------------------------------------------
Fourth Quarter.......................... -- --
Third Quarter........................... -- --
Second Quarter.......................... -- --
First Quarter........................... -- --
</TABLE>
GE Common Stock is principally traded in the United States on the New York
Stock Exchange under the symbol "GE." Greenwich Class A and Class B Common Stock
are currently traded on the Nasdaq National Market ("Nasdaq") under the symbols
"GASIA" and "GASIB," respectively.
On March 7, 1997, the last trading day before the public announcement of the
proposed merger, the closing sale price of GE Common Stock, as reported by the
NYSE Composite Tape and subsequently adjusted to reflect a 2-for-1 stock split,
was $52 11/16, and the closing bid prices of Greenwich Class A Common Stock and
Greenwich Class B Common Stock, as quoted on Nasdaq, were $25 1/2 and $25 1/4
per share, respectively. On July 7, 1997, the last trading day prior to the date
of this Proxy Statement/Prospectus, the closing sale price of GE Common Stock
and the closing bid prices of Greenwich Class A and Class B Common Stock were
$69 3/4, $29 and $28 7/8 per share, respectively.
Prior to fiscal year 1996, Greenwich did not declare or pay any dividends.
In January 1996, Greenwich paid a cash dividend on Greenwich Common Stock of
$.01 per share. On May 8, 1996, Greenwich distributed to the holders of
Greenwich Class A Common Stock one share of Greenwich Class B Common Stock for
each share of Greenwich Class A Common Stock outstanding. On January 30, 1997,
Greenwich paid a $.012 per share cash dividend in respect of each outstanding
share of Greenwich Common Stock.
GE declared dividends of $3.1 billion in fiscal year 1996, or approximately
42% of GE's 1996 consolidated earnings. Per share dividends declared of $1.90 in
fiscal year 1996 increased 12% from 1995, its 21st consecutive annual increase.
Following the merger, payment of cash dividends by GE in respect of GE Common
Stock will depend on GE's financial condition, results of operations and any
other factor GE's Board of Directors may consider relevant.
At year-end 1996, GE had purchased and placed into treasury a total of 93.5
million shares having an aggregate cost of $6.4 billion under a share repurchase
program begun in December 1994. In 1996, GE's Board of Directors increased the
authorization to repurchase GE Common Stock to $13 billion and authorized the
program to continue through 1998. Such shares are from time to time reissued
upon the exercise of employee stock options, conversion of convertible
securities and for other corporate purposes. GE intends to continue repurchases
of shares in the ordinary course under its ongoing repurchase program between
the date of this document and the merger, and during the valuation period for
the merger.
13
<PAGE>
THE SPECIAL MEETING
GENERAL
This Proxy Statement/Prospectus is being furnished in connection with the
solicitation of proxies by the Board of Directors (the "Greenwich Board") of
Greenwich Air Services, Inc. ("Greenwich") for use at the special meeting of
Greenwich stockholders (the "Special Meeting"). This Proxy Statement/Prospectus,
the attached Notice of Stockholders' Meeting and the enclosed form of proxy are
first being mailed to stockholders of Greenwich on or about July 9, 1997.
MATTERS TO BE CONSIDERED AT THE SPECIAL MEETING
At the Special Meeting, holders of Greenwich Class A Common Stock (as
defined below) will be asked to consider and vote on a proposal to adopt the
Agreement and Plan of Merger, dated March 9, 1997, among Greenwich, General
Electric Company ("GE") and GB Merger Corp., a wholly owned subsidiary of GE
(the "Merger Agreement"). Pursuant to the terms of the Merger Agreement,
Greenwich will be merged with and into GB Merger Corp. (the "Merger").
AFTER CAREFUL CONSIDERATION, THE GREENWICH BOARD HAS UNANIMOUSLY DETERMINED
THAT THE MERGER IS FAIR TO AND IN THE BEST INTERESTS OF GREENWICH AND ITS
STOCKHOLDERS. THE GREENWICH BOARD HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT
AND UNANIMOUSLY RECOMMENDS THAT HOLDERS OF GREENWICH CLASS A COMMON STOCK VOTE
TO ADOPT IT AT THE SPECIAL MEETING.
VOTING AND PROXIES
The Greenwich Board has fixed the close of business on June 16, 1997 as the
record date for the determination of the stockholders entitled to notice of, and
to vote at, the Special Meeting. At that date, there were outstanding 7,012,448
shares of Greenwich Class A Common Stock, par value $.01 per share (the
"Greenwich Class A Common Stock"), the holders of which will be entitled to one
vote per share on each matter submitted to the Special Meeting. Shares of
Greenwich Class B Common Stock, par value $.01 per share (the "Greenwich Class B
Common Stock" and, collectively with the Greenwich Class A Common Stock, the
"Greenwich Common Stock"), are not entitled to vote at the Special Meeting. No
other voting securities of Greenwich are outstanding.
The presence at the Special Meeting, in person or by proxy, of the holders
of a majority of the shares entitled to vote constitutes a quorum for the
transaction of business at the Special Meeting. If a quorum should not be
present, the Special Meeting may be adjourned from time to time until a quorum
is obtained. Assuming a quorum is present, the affirmative vote of the holders
of a majority of the outstanding shares of Greenwich Class A Common Stock
entitled to vote at the Special Meeting is required to adopt the Merger
Agreement.
As of July 7, 1997, a stockholder group, consisting of Eugene P. Conese,
Sr., the Chairman of the Board and Chief Executive Officer of Greenwich, Eugene
P. Conese, Jr., the President and Chief Operating Officer of Greenwich, and Anna
May Conese, the spouse of Eugene P. Conese, Sr. and the mother of Eugene P.
Conese, Jr. (collectively, the "Conese Stockholders"), owned and held the power
to vote 3,651,749 shares of Greenwich Class A Common Stock, representing 52% of
such outstanding shares. As a condition to GE's willingness to enter into the
Merger Agreement, the Conese Stockholders have agreed, pursuant to a Stock
Option and Voting Agreement dated March 9, 1997 (the "Stock Option and Voting
Agreement"), and without any additional consideration being paid to the Conese
Stockholders, among other things, to vote all of their shares of Greenwich Class
A Common Stock in favor of adopting the Merger Agreement at the Special Meeting.
In addition, GE owns 689,000 shares of Greenwich Class A Common Stock,
representing 9.8% of such outstanding shares, which it purchased in the open
market on
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and after March 10, 1997, and which it intends to vote in favor of adopting the
Merger Agreement at the Special Meeting. Accordingly, adoption of the Merger
Agreement at the Special Meeting is assured.
Shares of Greenwich Class A Common Stock represented by properly executed
proxies will, unless such proxies have been revoked, be voted in accordance with
the instructions indicated on such proxies or, if no instructions are indicated,
will be voted for adoption of the Merger Agreement and in the best judgment of
the individuals named in the accompanying proxy on any other matters which may
properly come before the Special Meeting. Any proxy may be revoked by the
stockholder giving it, at any time prior to its being voted, by filing a notice
of revocation or a duly executed proxy bearing a later date with the Secretary
of Greenwich at the address given on the Notice of Stockholders' Meeting
accompanying this Proxy Statement/Prospectus. Any proxy may also be revoked by
the stockholder's attendance at the Special Meeting and voting in person. A
notice of revocation need not be on any specific form. Abstentions may be
specified with respect to the adoption of the Merger Agreement by properly
marking the "ABSTAIN" box on the proxy for such proposal, and will be counted as
present for the purpose of determining the existence of a quorum. Under the
rules of the National Association of Securities Dealers, Inc. (the "NASD"),
while brokers who hold shares in street name have the authority to vote on
certain items when they have not received instructions from beneficial owners,
brokers will not be entitled to vote on the adoption of the Merger Agreement
without instructions. Brokers who do not receive instructions but who are
present, in person or by proxy, at the Special Meeting will be counted as
present for quorum purposes (a "broker nonvote"). Abstentions and broker
nonvotes will have the same effect as a vote against the adoption of the Merger
Agreement at the Special Meeting.
SOLICITATION OF PROXIES
Proxies are being solicited by and on behalf of the Greenwich Board. GE and
Greenwich will share equally all expenses related to printing, filing and
mailing the Proxy Statement/Prospectus and all the Securities and Exchange
Commission (the "Commission") and other regulatory filing fees incurred in
connection with the Proxy Statement/Prospectus. See "THE MERGER AGREEMENT --
Expenses." In addition to soliciting proxies by mail, officers, directors and
employees of Greenwich, without receiving additional compensation therefor, may
solicit proxies by telephone, telegraph, in person or by other means.
Arrangements also will be made with brokerage firms and other custodians,
nominees and fiduciaries to forward proxy solicitation material to the
beneficial owners of Greenwich Class A Common Stock held of record by such
persons, and GE and Greenwich will reimburse such brokerage firms, custodians,
nominees and fiduciaries for reasonable out-of-pocket expenses incurred by them
in connection therewith.
THE MERGER
BACKGROUND OF THE MERGER
THE UNC MERGER. In October 1996, Eugene P. Conese, Sr., Chairman of the
Board and Chief Executive Officer of Greenwich, proposed to Dan A. Colussy,
Chairman of the Board, President and Chief Executive Officer of UNC Incorporated
("UNC"), that Greenwich acquire UNC.
Greenwich retained Salomon Brothers Inc ("Salomon Brothers") and the UNC
Board of Directors retained J.P. Morgan Securities Inc. ("J.P. Morgan") in
October 1996, and each board held numerous meetings with its financial and legal
advisors between October 1996 and February 1997 to discuss the contemplated
Greenwich-UNC transaction as well as other strategic alternatives, including a
possible public offering by UNC and other potential acquisition opportunities
available to Greenwich. From November through early February 1997,
representatives of Greenwich and UNC held a number of meetings and negotiations
with respect to the terms of a Greenwich-UNC combination.
On February 13, 1997, Mr. Conese, Sr., after meetings with Salomon Brothers
and counsel to Greenwich, chaired a meeting of the Greenwich Board at which the
final terms and conditions of the
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proposed merger with UNC were presented and discussed by representatives of
Salomon Brothers and Greenwich's counsel. Such proposed terms involved the
issuance of Greenwich Class B Common Stock with a value ranging from $14.00 to
$16.10 (depending on the average closing price of Greenwich Class B Common Stock
during a specified valuation period prior to the consummation of the
transaction), in exchange for each UNC Common Stock Equivalent (as defined in
the Greenwich-UNC merger agreement). Holders of UNC Common Stock Equivalents had
the right to elect to receive up to 50% of the aggregate merger consideration in
cash. The total value of the proposed merger consideration was estimated at
between $310 million and $355 million. As a result of the foregoing, on February
13, 1997, after the Boards of Directors of Greenwich and UNC had approved the
execution and delivery of an Agreement and Plan of Reorganization (the "Original
UNC Merger Agreement"), Greenwich and UNC entered into the Original UNC Merger
Agreement, pursuant to which Greenwich and UNC agreed that, subject to certain
conditions, UNC would be merged with and into a newly formed acquisition
subsidiary of Greenwich and thereby become a wholly owned subsidiary of
Greenwich (the "UNC Merger"). The Original UNC Merger Agreement entitled
Greenwich to modify the structure of the UNC Merger so that UNC and one or more
of its subsidiaries could be merged directly with and into Greenwich. On
February 14, 1997, Greenwich and UNC issued a joint press release announcing the
proposed merger of Greenwich and UNC.
THE GE-GREENWICH TRANSACTION. During the months preceding February 1997,
Greenwich and GE had been engaged in discussions regarding the renewal of
certain licensing agreements pertaining to Greenwich's servicing of aircraft
component parts manufactured by GE. These discussions resulted in a meeting on
February 27, 1997 between William J. Vareschi, President and Chief Executive
Officer of GE Engine Services Inc., a wholly owned subsidiary of GE, and Eugene
P. Conese, Sr. During this meeting the scope of the discussions was expanded to
include the possible acquisition by GE of certain selected Greenwich assets or
Greenwich in its entirety. Mr. Vareschi indicated that he would ask John F.
Welch, Jr., Chairman of the Board and Chief Executive Officer of GE, to call Mr.
Conese, Sr. on Friday, February 28, 1997 to discuss the matter further. Mr.
Welch called Mr. Conese, Sr. on Friday, February 28, 1997 and arranged to meet
with Mr. Conese, Sr. on Sunday, March 2, 1997.
On the morning of March 2, 1997, Mr. Welch and Mr. Vareschi met with Mr.
Conese, Sr. and Eugene P. Conese, Jr., the President and Chief Operating Officer
of Greenwich. Mr. Welch indicated that while GE was prepared to discuss the
other alternatives raised in the prior meeting between Mr. Vareschi and Mr.
Conese, Sr., GE's preference was to acquire all of Greenwich. Mr. Conese, Sr.
advised Mr. Welch that although Greenwich was not currently for sale, he would
consider such a sale if it was in the best interests of all the stockholders of
Greenwich. At that meeting, Mr. Welch, Mr. Vareschi and Messrs. Conese, Sr. and
Conese, Jr. had preliminary discussions concerning the possible terms on which a
transaction involving the acquisition of Greenwich by GE might be agreeable to
both parties, including lengthy discussions concerning the value of Greenwich's
business. It was proposed that both Greenwich Class A Common Stock and Greenwich
Class B Common Stock would be sold for the same price, notwithstanding the fact
that only Greenwich Class A Common Stock is voting stock, inasmuch as the
Greenwich Class B Common Stock was intended to be the economic equivalent to the
Greenwich Class A Common Stock. Mr. Welch indicated that, as a condition to its
willingness to pursue such a transaction, GE would require the Conese
Stockholders to enter into the Stock Option and Voting Agreement. After the
meeting ended, further discussions took place during the course of that day. As
a result of such discussions, Messrs. Welch, Vareschi, Conese, Sr. and Conese,
Jr. agreed that GE and Greenwich would consider and study the feasibility of a
possible acquisition of Greenwich by GE through a merger in which all Greenwich
stockholders would be entitled to receive a fixed price of $31.00 per share of
Greenwich Common Stock (regardless of market conditions at the time of closing),
payable at the election of the stockholder either in GE Common Stock, par value
$.16 per share (the "GE Common Stock"), or cash, subject to an aggregate limit
on the amount of cash involved to permit the transaction to qualify as a
tax-free reorganization for federal income tax purposes. The suggested merger
consideration of $31.00 per share of Greenwich Common Stock was proposed after
considerable negotiation among the parties, who considered such
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factors as the businesses, condition (financial and otherwise), competitive
positions and historical performances and prospects of both GE and Greenwich,
and the relative historical and current trading prices and volumes (as well as
potential for future growth in value) of the shares of each of the companies.
The closing price of the Greenwich Common Stock on Friday, February 28, 1997 was
$21.875 per share for the Greenwich Class A Common Stock and $22.00 per share
for the Greenwich Class B Common Stock. It was also contemplated that the
proposed acquisition of Greenwich by GE would not interfere with the proposed
UNC Merger. After discussions, Messrs. Conese, Sr. and Conese, Jr. agreed to
approach UNC with a proposal to restructure the UNC Merger as an all-cash
purchase in which each holder of UNC Common Stock Equivalents would receive
$15.00 per share. It was also agreed between Mr. Conese, Sr. and Mr. Welch that
Mr. Conese, Sr. would enter into a consulting and non-competition agreement with
GE and that retention agreements would be entered into with a limited number of
Greenwich employees.
In the evening of March 2, 1997, Messrs. Conese, Sr. and Conese, Jr. and
Greenwich's counsel met with Mr. Colussy and UNC's counsel to discuss the
foregoing developments. Subject to further review and analysis by their
respective legal and financial advisors and approval of the respective boards of
directors of Greenwich and UNC, such persons agreed that GE's proposals were
attractive to both the Greenwich and UNC stockholders and that further
discussions and negotiations with GE representatives should proceed.
Between March 3 and March 9, 1997, representatives and outside legal
advisors of GE, Greenwich and UNC, as well as the independent financial advisors
of Greenwich and UNC, met at the Miami office of counsel to Greenwich to
negotiate the specific terms of the proposed business combination of GE,
Greenwich and UNC, and to conduct preliminary due diligence activities that
included gathering and exchanging relevant information. Various business,
financial and legal considerations were discussed during the meetings, including
the specific terms of the proposed business combination, regulatory approvals,
operational issues, retention of management and treatment of benefit plans.
It was also mutually agreed by Greenwich and UNC that in the event the
Merger Agreement was terminated for any reason, the Original UNC Merger
Agreement would, without any action by any party thereto, be reinstated (with
certain minor exceptions), and that the UNC Merger would proceed under its
original terms and conditions. In addition, during such period, the Greenwich
Board held an informational meeting on March 5, 1997 to review the status of
negotiations and the proposed transactions.
On March 9, 1997, a meeting of the Greenwich Board was held at which the
final terms and conditions to the proposed Merger (which terms are summarized
below under "THE MERGER AGREEMENT") were presented and discussed by
representatives of Salomon Brothers and Greenwich's counsel, including
Greenwich's special Delaware counsel. During the course of the meeting, a
representative of Salomon Brothers delivered its written opinion that the
consideration to be paid pursuant to the proposed Merger was fair to the
Greenwich stockholders from a financial point of view. Greenwich's special
Delaware counsel also reviewed with the Greenwich directors their duties under
Delaware law as those duties related to the proposed transaction with GE.
Following extensive discussions, the Greenwich Board unanimously approved the
Merger Agreement, including the consideration to be paid pursuant to the Merger,
and recommended that holders of Greenwich Class A Common Stock vote in favor of
the Merger and adopt the Merger Agreement. The Greenwich Board also unanimously
(i) approved the Stock Option and Voting Agreement; (ii) authorized the
transaction for the purposes of both Section 203 of the Delaware General
Corporation Law (the "DGCL") and section seven of article seven of Greenwich's
bylaws; (iii) approved the retention of Salomon Brothers in connection with the
Merger and the rendering of the fairness opinion by Salomon Brothers, and the
compensation of Salomon Brothers therefor; (iv) approved the Amended and
Restated Agreement and Plan of Merger between Greenwich and UNC; (v) approved
the Consulting Agreement (as defined below), including its non-competition
provision, between Eugene P. Conese, Sr. and GE; and (vi) approved various
retention agreements between Greenwich and senior executives of Greenwich.
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On the same day, the UNC Board of Directors met twice with its legal and
financial advisors. At the first meeting of the day, the UNC Board of Directors
met to review the Amended and Restated UNC Merger Agreement, dated March 9, 1997
(the "UNC Merger Agreement") (the terms of which are summarized below under "--
Plans for Greenwich After the Merger") and J.P. Morgan delivered its oral
opinion that the proposed consideration to be paid to the UNC stockholders under
the UNC Merger Agreement was fair to the stockholders of UNC from a financial
point of view. At the second meeting, following extensive discussions, the UNC
Board of Directors unanimously approved the UNC Merger Agreement, including the
merger consideration, and recommended that stockholders vote in favor of the UNC
Merger and adopt the UNC Merger Agreement. Later that day, the Merger Agreement
was signed by GE and Greenwich, and the UNC Merger Agreement was signed by
Greenwich and UNC. On March 10, 1997, GE, Greenwich and UNC issued a joint press
release announcing the execution of the Merger Agreement and the UNC Merger
Agreement.
In May 1997, counsel to GE and counsel to Greenwich determined that they
would be unable to deliver the tax opinions contemplated in the Merger
Agreement. Because the Conese Stockholders chose not to execute the certificates
required by tax counsel to support their opinions, any GE shares in fact
received by them in the Merger could not be considered in determining whether
the continuity of interest requirements of Section368(a) of the Code were
satisfied. Such certificates would have prevented the Conese Stockholders from
disposing of the shares of GE Common Stock delivered to them in the Merger for
at least one year after the Merger. The Conese Stockholders indicated that they
were not willing to agree to this restriction and instead wanted the same
flexibility, subject to applicable securities laws, to dispose of such GE shares
as would be possessed by all other Greenwich stockholders receiving GE Common
Stock in the Merger. Pursuant to the Merger Agreement, GE has therefore reduced
the maximum cash component which can be paid to Greenwich's Public Stockholders
(as defined below) to approximately 22% of the total merger consideration. This
percentage is subject to further adjustment as described below. See "-- Merger
Consideration." On June 3, 1997, Salomon Brothers orally advised the Greenwich
Board, subsequently confirmed in writing by letter dated June 6, 1997, that if
the percentage of cash consideration had been reduced (as described above) at or
prior to March 9, 1997, it would have rendered the same opinion that the
consideration to be paid in the Merger is fair to the stockholders of Greenwich
from a financial point of view.
REASONS FOR THE MERGER; RECOMMENDATION OF THE GREENWICH BOARD OF DIRECTORS
The Greenwich Board has approved and adopted the Merger Agreement, believes
that the Merger is in the best interests of Greenwich and its stockholders and
unanimously recommends adoption of the Merger Agreement by the holders of
Greenwich Class A Common Stock at the Special Meeting.
At a meeting held on March 9, 1997, the Greenwich Board of Directors, with
the assistance of Greenwich's outside financial and legal advisors, considered
the legal, financial and other terms of the Merger.
The Greenwich Board concluded that the Merger is in the best interests of
Greenwich and its stockholders. In reaching its decision to enter into and to
recommend the adoption of the Merger Agreement, the Greenwich Board considered
the following material factors:
- Salomon Brothers' written opinion that the consideration to be paid in the
Merger is fair to the stockholders of Greenwich from a financial point of
view. See "-- Fairness Opinion of Salomon Brothers Inc";
- the Greenwich Board's belief that the analyses of Salomon Brothers
supported the Greenwich Board's conclusion that the Merger Consideration
is fair, from a financial point of view, to, and is in the best interests
of, the Greenwich stockholders, both in terms of the immediate financial
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consideration to be received and the potential for future appreciation in
value of the GE Common Stock. See "-- Fairness Opinion of Salomon Brothers
Inc";
- the relative trading prices and volumes (as well as prospects for future
growth in value) of Greenwich Class A Common Stock and Greenwich Class B
Common Stock (with Greenwich as a stand-alone entity and taking into
consideration the proposed merger with UNC);
- the results of operations, financial condition, competitive position and
prospects of Greenwich (as a stand-alone entity and taking into
consideration the proposed merger with UNC) and GE, both on an historical
and future basis and as separate and combined entities;
- the opportunity for Greenwich's stockholders to become stockholders of GE,
which the Greenwich Board viewed as one of the largest, most diversified
and financially stable enterprises in the world;
- the price certainty of the proposed Merger -- $31.00 per share
notwithstanding stock market fluctuations through the closing of the
Merger;
- the strength of GE Common Stock and its comparative price stability and
relatively low volatility when compared with broad market indices, in
contrast to the greater volatility and attendant risk to holders of
Greenwich Common Stock;
- the benefits to Greenwich's employees and customers of the merger of
Greenwich's business with GE's businesses; and
- the structure of the Merger, which permits Greenwich stockholders to
exchange their Greenwich Common Stock for GE Common Stock on a tax-free
basis, except to the extent they receive cash. See "-- Material Federal
Income Tax Consequences."
The Board also considered the Conese Stockholders' grant to GE of an option
covering the shares of Greenwich Common Stock owned by them, exercisable by GE
at a fixed price of $31.00 per share, and the Conese Stockholders' agreement
thereby to forego the opportunity to benefit if any greater consideration were
to be paid to any other stockholder for shares of Greenwich Common Stock. In
view of the variety of factors considered by the Greenwich Board in connection
with its evaluation of the Merger, the Greenwich Board did not find it
practicable to, and did not, quantify or otherwise assign relative weights to
such factors.
The Greenwich Board concluded, in light of these factors, that the Merger is
fair to and in the best interests of Greenwich and its stockholders. THE
GREENWICH BOARD HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND UNANIMOUSLY
RECOMMENDS THAT HOLDERS OF GREENWICH CLASS A COMMON STOCK VOTE TO ADOPT IT AT
THE SPECIAL MEETING.
INTERESTS OF CERTAIN PERSONS IN THE MERGER; CONFLICTS OF INTEREST
In considering the Merger, you should be aware of the interests certain
officers and directors of Greenwich have in the Merger that are different from
your and their interests as stockholders. In this regard, you should consider,
among other things, the consulting and non-competition agreement, dated March 9,
1997 (the "Consulting Agreement"), between GE and Mr. Conese, Sr., and the Stock
Option and Voting Agreement that the Conese Stockholders entered into with GE,
the terms of which are summarized below in "THE STOCK OPTION AND VOTING
AGREEMENT."
STOCK OPTIONS. Pursuant to the Merger Agreement, each Greenwich stock
option outstanding at the Effective Time (as defined below) will be canceled by
Greenwich immediately prior to the Effective Time, and each holder thereof will
be entitled to receive at the Effective Time the Option Spread. The "Option
Spread" is the amount, subject to tax withholding, equal to the product of (i)
the number of shares of Greenwich Common Stock previously subject to such
Greenwich stock option and (ii) the excess, if any, of $31.00 over the exercise
price per share of Greenwich Common Stock previously subject to such
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Greenwich stock option. The Option Spread shall be paid in cash or, if a holder
of one or more Greenwich stock options so elects in writing at least 10 days
prior to the Effective Time, in a number of shares of GE Common Stock determined
by dividing (i) the aggregate Option Spread payable to such holder by (ii) the
Average GE Share Price (as defined below).
At July 7, 1997, an aggregate of approximately 141,725 shares of Greenwich
Class A Common Stock and an aggregate of 285,475 shares of Greenwich Class B
Common Stock were subject to options granted to employees and directors of
Greenwich under various stock option plans. The number of shares subject to
stock options held by executive officers and directors as of June 13, 1997 were
as follows: Eugene P. Conese, Sr. held 36,000; Eugene P. Conese, Jr. held
50,000; Robert J. Vanaria held 28,000; Orlando M. Machado held 16,000; Michael
A. Bucci held 18,000; Charles A. Gabriel held 5,200; Allen J. Krowe held 6,000;
Charles J. Simons held 11,000; and Chesterfield Smith held 11,000. These options
represent less than 1% of the Greenwich Common Stock on a fully diluted basis.
CONSULTING AGREEMENT. At GE's request prior to execution of the Merger
Agreement, Mr. Conese, Sr. entered into the Consulting Agreement to become
effective only if the Merger is consummated, pursuant to which, among other
things, Mr. Conese, Sr. agreed that he would be subject to certain prohibitions
on competition with the engine services businesses of GE and Greenwich and would
act as a consultant to GE from and after the consummation of the Merger until
the fifth anniversary thereof. As compensation for the non-competition and
related covenants contained in the Consulting Agreement and the services to be
performed by Mr. Conese, Sr., if the Merger is consummated GE will, for five
years, (i) pay Mr. Conese, Sr., or a Subchapter S corporation of which he is a
principal stockholder, a fee each year at the annual rate of $1.0 million and
(ii) make a $1.0 million payment each year of the consulting period in the name
of Mr. Conese, Sr. to a charitable organization chosen by Mr. Conese, Sr.
RETENTION AGREEMENTS. After consultation with GE and with GE's prior
agreement given in the Merger Agreement, Greenwich entered into retention
agreements on March 10, 1997 (the "Retention Agreements") with certain employees
of Greenwich, including each of the following executive officers: Michael Bucci,
Orlando Machado, and Robert Vanaria. The retention agreements are intended to
induce these executives to remain in the employ of Greenwich during and after
the acquisition of Greenwich by GE, thereby avoiding disruption of Greenwich's
business. Under the retention agreements, Greenwich (or its successor) agreed to
pay the executives the severance benefits set forth below in the event an
executive's employment with Greenwich is terminated without Cause (as defined in
the Retention Agreements) or the executive is Constructively Discharged (as
defined below) during the one-year period following the Effective Time (the
"Covered Period"). However, if the Merger Agreement is terminated, then, at the
time of such termination, the Retention Agreements will be deemed canceled and
of no force and effect.
Under the Retention Agreements, a "Constructive Discharge" will be deemed to
have occurred if, during the Covered Period, an executive (i) is not performing
substantially the same duties and functions for Greenwich as those he performed
for Greenwich immediately prior to the Effective Time, (ii) is receiving
aggregate remuneration, including annual base salary, bonus and fringe benefits,
less favorable to him, in the aggregate, than the base salary, bonus and fringe
benefits paid or accrued to him in Greenwich's fiscal year ended September 30,
1996, or (iii) becomes obligated to relocate his permanent residence or engage
in travel so extensive that it consistently requires him to spend weekends away
from such permanent residence.
Upon such termination without Cause or a Constructive Discharge during the
Covered Period, an executive will receive (i) within five days after the date he
is terminated or Constructively Discharged (the "Date of Termination"), a lump
sum cash severance payment equal to the sum of (x) the full amount of any earned
but unpaid base salary through the Date of Termination at the rate then in
effect, (y) the value of all unused vacation time which the executive may have
accrued as of the Date of Termination and (z) an amount representing 150% of the
executive's annual base salary as in effect as of the date of the Retention
Agreement. The payments pursuant to clause (z) above for each of the executive
officers are as follows:
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Michael Bucci, $225,000; Orlando Machado, $174,600; and Robert Vanaria,
$262,500. The total payment due under all the Retention Agreements is
approximately $2.6 million.
In addition, the executive and his eligible dependents will continue to be
eligible to participate during the Benefit Continuation Period (as defined
below) in the medical, dental, health, life and other welfare benefit plans and
arrangements applicable to him, immediately prior to his termination of
employment, on the same terms and conditions as were in effect immediately prior
to such termination. For purposes of the previous sentence, "Benefit
Continuation Period" means the period beginning on the Date of Termination and
ending on the earlier to occur of (x) the 18-month anniversary of the Date of
Termination and (y) the date that the executive and his dependents are eligible
for coverage under the plans of a subsequent employer which provide
substantially equivalent or greater benefits to them.
If the payments to an executive under his Retention Agreement constitute
"parachute payments" (as defined in Section 280G(b)(2) of the Internal Revenue
Code of 1986 (the "Code")), and the net amount after taxes of the payments is
less than the net amount after taxes if the aggregate present value (within the
meaning of Section 280G(b)(2)(A)(ii) of the Code) of the payments to be made to
him were three times his "base amount" (as defined in Section 280G(b)(3) of the
Code), less $1.00, then the payments to such executive will be reduced so that
the aggregate present value of such payments will equal three times his base
amount, less $1.00.
EMPLOYMENT AGREEMENTS. Under the pre-existing employment agreement of
Eugene P. Conese, Sr., he will receive $1.00 less than three times his Base
Amount (as defined below) when he resigns upon consummation of the Merger.
Pursuant to Section 280G of the Code, "Base Amount" includes the average annual
W-2 compensation includable in gross income for the five years immediately prior
to the change of control. As a result of such "change of control" provisions,
Mr. Conese, Sr. will receive payments of approximately $1.55 million. Under the
pre-existing employment agreement of Eugene P. Conese, Jr., he is entitled to
receive $1.00 less than three times his Base Amount if he is constructively
discharged due to a change of control. "Constructive Discharge" is defined as
resignation from employment due to: (i) the failure to elect or re-elect the
executive to his current office; (ii) the material diminution in his duties or
responsibilities; (iii) any reduction or delay in payment of compensation due
under his employment agreement; (iv) a change of control; and (v) the failure of
Greenwich to cause the successor corporation in the event of a change of control
to assume his employment agreement. As a result of such "change of control"
provisions, Mr. Conese, Jr. would be entitled to receive payments of
approximately $575,000 should he resign due to the occurrence of one of the
Constructive Discharge events. Mr. Conese, Jr. and GE are currently in
discussions concerning the nature of his duties and responsibilities at
Greenwich following the Merger and his compensation therefor.
Under his existing employment arrangements, Mr. Conese, Sr. will receive
deferred compensation in the amount of $736,667 on his retirement upon
consummation of the merger. Under the terms of his existing employment
arrangements, Mr. Conese, Jr. is entitled to a deferred compensation payment of
$146,667 if the constructive discharge provisions of his employment agreement
are triggered.
GREENWICH 1995 EMPLOYEE STOCK PURCHASE PLAN. In the Merger Agreement, GE
and Greenwich have agreed that Greenwich will take all actions necessary to
shorten the offering period of Greenwich's 1995 Employee Stock Purchase Plan
(the "ESPP") (the "Current Offering") so that a new purchase date will occur
prior to the Effective Time and shares of Greenwich Class B Common Stock will be
purchased by ESPP participants prior to the Effective Time. The Current Offering
will expire immediately after such new purchase date, and the ESPP will
terminate immediately prior to the Effective Time.
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FAIRNESS OPINION OF SALOMON BROTHERS
OPINION OF SALOMON BROTHERS. Salomon Brothers delivered to the Greenwich
Board its written opinion that, as of March 9, 1997, the consideration to be
paid in connection with the Merger is fair to holders of Greenwich Common Stock
(other than GE and its affiliates) from a financial point of view. No
limitations were imposed by the Greenwich Board upon Salomon Brothers with
respect to the investigations made or the procedures followed by it in rendering
its opinion. On June 3, 1997 Salomon Brothers orally advised the Greenwich
Board, subsequently confirmed in writing by letter dated June 6, 1997, that if
the percentage of cash consideration had been reduced (as described above) at or
prior to March 9, l997, it would have rendered the same opinion that the
consideration to be paid in the Merger is fair to the stockholders of Greenwich
from a financial point of view.
THE FULL TEXT OF THE OPINION OF SALOMON BROTHERS DATED MARCH 9, 1997, WHICH
SETS FORTH ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITS ON THE REVIEW
UNDERTAKEN, IS ATTACHED AS ANNEX II TO THIS PROXY STATEMENT/PROSPECTUS.
GREENWICH STOCKHOLDERS ARE URGED TO READ THE OPINION IN ITS ENTIRETY. SALOMON
BROTHERS' OPINION IS DIRECTED ONLY TO THE FAIRNESS OF THE CONSIDERATION TO BE
PAID TO HOLDERS OF GREENWICH COMMON STOCK AND DOES NOT CONSTITUTE A
RECOMMENDATION TO ANY GREENWICH STOCKHOLDER AS TO HOW SUCH STOCKHOLDER SHOULD
VOTE. THE SUMMARY OF THE OPINION OF SALOMON BROTHERS SET FORTH IN THIS PROXY
STATEMENT/PROSPECTUS IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL TEXT
OF SUCH OPINION.
In arriving at its opinion, Salomon Brothers (i) reviewed the Merger
Agreement and its related schedules, (ii) reviewed the Original UNC Merger
Agreement, the UNC Merger Agreement and their related schedules, (iii) reviewed
certain publicly available business and financial information relating to GE,
Greenwich and UNC, (iv) reviewed certain other information, including financial
forecasts, provided to Salomon Brothers by Greenwich and (v) met with members of
senior management of both Greenwich and UNC to discuss the past and current
operations and financial condition and prospects of Greenwich and UNC. Salomon
Brothers also considered such other information, financial studies, analyses,
investigations and financial, economic and market criteria that it deemed
relevant.
In connection with its review, Salomon Brothers did not assume any
responsibility for independently verifying any of the foregoing information and
relied on such information being complete and accurate in all material respects.
With respect to the financial forecasts, Salomon Brothers assumed that they had
been reasonably prepared on bases reflecting the best currently available
estimates and judgments of the management of Greenwich or UNC, as the case may
be, as to the future financial performance of Greenwich or UNC, as the case may
be. Salomon Brothers did not express any opinion with respect to such forecasts
or the assumptions on which they are based, including assumptions regarding the
effects of any outstanding or potential litigation, investigations, inquiries or
other actions. In addition, Salomon Brothers did not make an independent
evaluation or appraisal of any of the assets (including properties and
facilities) or liabilities (including, without limitation, environmental
liabilities) of Greenwich or of UNC, nor was it furnished with any such
appraisals. Salomon Brothers' opinion was necessarily based upon business,
market, economic and other conditions as they existed on, and could be evaluated
as of, the date of its opinion and did not address Greenwich's underlying
business decision to effect the Merger. Salomon Brothers' opinion did not imply
any conclusion as to the likely trading range for GE Common Stock following the
consummation of the Merger, which may vary depending on, among other factors,
changes in interest rates, dividend rates, market conditions, general economic
conditions and other factors that generally influence the price of securities.
The following is a summary of the report presented by Salomon Brothers to
the Greenwich Board on March 9, 1997 in connection with its fairness opinion
(the "Salomon Brothers Report"):
PREMIUM ANALYSIS AND OVERVIEW OF GE'S BUSINESS AND FINANCIAL
PERFORMANCE. Salomon Brothers reviewed the current, 52-week high and 52-week
low per share market prices of Greenwich Common Stock and compared such market
prices to the $31.00 per share price payable in the Merger. Such comparison
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showed that such $31.00 per share price represented (i) a 19.8% premium to the
market price at the close of business on March 7, 1997, a 25.8% discount to the
52-week high market price and a 92.3% premium to the 52-week low market price of
Greenwich Class A Common Stock and (ii) a 25.9% premium to the market price at
the close of business on March 7, 1997, an 8.2% discount to the 52-week high
market price and a 129.6% premium to the 52-week low market price of Greenwich
Class B Common Stock. Salomon Brothers also reviewed the business of GE and GE's
historical financial performance for each of the fiscal years 1993 through 1995
and the nine months ended September 30, 1996 (including, among other things,
sales, earnings before interest, taxes, depreciation and amortization
("EBITDA"), earnings before interest and taxes ("EBIT"), net income, earnings
per share and capital expenditures).
SHARE PRICE ANALYSIS AND OVERVIEW OF GREENWICH'S FINANCIAL
PERFORMANCE. Salomon Brothers reviewed the history of the per share market
prices and trading volumes of Greenwich Class A Common Stock over the period
from and including January 3, 1995 through and including March 6, 1997, and
Greenwich Class B Common Stock over the period from and including May 10, 1996
through and including March 6, 1997. Salomon Brothers compared the per share
market price movements of Greenwich Class B Common Stock to the Standard &
Poor's Industrial Average of 500 stocks (the "S&P 500") and a composite index of
certain publicly traded aircraft parts and services companies. Such aircraft
parts and services companies included: AAR Corporation, Banner Aerospace, Inc.,
BE Aerospace, Inc., Coltec Industries Inc, MOOG Inc. (Class A), Precision
Castparts Corporation, Rohr, Inc. and Wyman-Gordon Company. Because the market
float and average trading volume of the Greenwich Class B Common Stock is
significantly higher than the market float and average trading volume of the
Greenwich Class A Common Stock, Salomon Brothers believed that the market price
of the Greenwich Class B Common Stock would be more illustrative of the market
valuation of Greenwich over the relevant period. This comparison showed that the
per share market price of Greenwich Class B Common Stock declined slightly
during the applicable period, while the S&P 500 index and the composite index
increased by over 20% during this period. Salomon Brothers reviewed Greenwich's
historical financial performance for each of the fiscal years 1991 through 1996
(including, among other things, sales, EBITDA, EBIT, net income, earnings per
share and capital expenditures). Salomon Brothers also reviewed Greenwich's
projected financial performance for the fiscal years 1997 through 2000 (which
included an assumed compounded annual sales growth rate of 5.8%), in each case
on a stand-alone basis (without giving effect to the UNC Merger) and on a pro
forma basis (after giving effect to the UNC Merger and the synergies Greenwich
management expects to achieve following the UNC Merger). These synergies
amounted to estimated cost savings of $15.6 million per year.
COMPARABLE COMPANY ANALYSIS. Salomon Brothers reviewed and compared the
financial and market performance of the following group of seven publicly traded
aircraft parts and services companies with those of Greenwich: AAR Corporation,
Banner Aerospace, Inc., MOOG Inc., Precision Castparts Corporation, Rohr, Inc.,
UNC and Wyman-Gordon Company (the "Comparable Group"). Salomon Brothers examined
certain publicly available financial data of the Comparable Group, including
multiples of firm value to total revenues, EBITDA and EBIT for fiscal year 1996
and multiples of stock price to earnings per share for fiscal years 1996 through
1998. Salomon Brothers then applied these multiples to estimates of Greenwich's
revenues, EBITDA, EBIT and earnings per share for the corresponding periods.
This analysis resulted in an equity value reference range of Greenwich Common
Stock from $21.00 to $26.00 per share on a stand-alone basis. Salomon Brothers
performed a second comparable company analysis giving effect to the UNC Merger
and the pre-tax value of the synergies Greenwich management expects to achieve
following the UNC Merger. This analysis resulted in an equity value reference
range per share of Greenwich Common Stock from $21.00 to $28.00 per share on a
pro forma basis after giving effect to the UNC Merger and the expected
synergies.
COMPARABLE ACQUISITION ANALYSIS. Salomon Brothers also reviewed the
consideration paid or proposed to be paid in other recent acquisitions of
aircraft parts and services companies. Specifically, Salomon Brothers reviewed
the following acquiror/target transactions: Greenwich/Aviall Inc. (consummated
June
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1996); UNC/Garrett Aviation Services (consummated May 1996); First Aviation
Services/National Airmotive Corporation (consummated June 1995); Dallas
Airmotive/Aviall Inc. (consummated March 1995); Greenwich/Chromalloy Gas Turbine
Corporation (consummated March 1994); UNC/Freedom Forge Corporation (consummated
August 1993); BF Goodrich Co./Cleveland Pneumatic Co. (consummated June 1993);
BE Avionics Inc./PTC Aerospace (consummated February 1992); GE/British Airways
Engine (consummated December 1991); Banner Industries/Fairchild Industries
(consummated August 1989); Hawker Siddeley Group PLC/Standard Aero Ltd.
(consummated October 1989); and Colt Holdings Inc./ Colt Industries Inc.
(consummated June 1988). The analysis considered multiples of firm value to
revenues, EBITDA and EBIT for the latest 12 months prior to the date of
consummation of the transactions. Salomon Brothers then applied the multiples
derived from the comparable transactions to estimates of Greenwich's revenues,
EBITDA and EBIT for fiscal years 1996 through 1998. This analysis resulted in an
equity value reference range per share of Greenwich Common Stock from $15.00 to
$20.00. Salomon Brothers performed a second comparable acquisition analysis
giving effect to the UNC Merger and the pre-tax value of the synergies Greenwich
management expects to achieve following the UNC Merger. This analysis resulted
in an equity value reference range per share of Greenwich Common Stock from
$15.00 to $22.00 per share on a pro forma basis after giving effect to the UNC
Merger and the expected synergies.
DISCOUNTED CASH FLOW ANALYSIS. Using a discounted cash flow analysis,
Salomon Brothers estimated the present value of the future cash flows that
Greenwich could produce over a four-fiscal-year period from 1997 through 2000,
under various assumptions, if Greenwich were to perform on a stand-alone basis
in accordance with management's forecasts. Salomon Brothers set forth certain
equity market value reference ranges for Greenwich based upon the sum of (i) the
aggregate discounted value (using various discount rates ranging from 11.5% to
13.5%) of the four-year unleveraged free cash flows of Greenwich, plus (ii) the
discounted value (using various discount rates ranging from 11.5% to 13.5%) of
(a) the final year's projected EBITDA multiplied by (b) numbers representing
various terminal or exit multiples (ranging from 7x to 9x). This analysis
resulted in an equity value reference range per share of Greenwich Common Stock
from $20.00 to $26.00. Salomon Brothers performed a second discounted cash flow
analysis giving effect to the UNC Merger and the pre-tax value of the synergies
Greenwich management expects to achieve following the UNC Merger. This analysis
resulted in an equity value reference range per share of Greenwich Common Stock
from $22.00 to $28.00.
The discounted cash flow analysis performed by Salomon Brothers assumed
that, had the proposed Greenwich-UNC transaction been consummated on October 1,
1995, on a combined pro forma basis after giving effect to (i) separate
acquisitions consummated after October 1, 1995 by each of Greenwich and UNC of
the Aviall engine overhaul business and Garrett Corporation, respectively, and
(ii) the acquisition by Greenwich of UNC on the terms set forth in the Original
UNC Merger Agreement, Greenwich would have had revenue and EBITDA of $1.74
billion and $145 million, respectively, for the fiscal year ended September 30,
1996. In addition, the discounted cash flow analysis also assumed that,
inclusive of expected synergies (including approximately $15.6 million in cost
savings that management of Greenwich anticipated the combined companies would
realize in the first year after consummation of the Greenwich-UNC Merger) and
anticipated costs and equity dilution that would be incurred in financing the
transaction, a combined Greenwich-UNC entity would have had combined pro forma
earnings per share of $0.78 for the fiscal year ended September 30, 1996.
Similarly, the discounted cash flow analysis also assumed that revenue, EBITDA
and earnings per share of the combined companies for the fiscal year ending
September 30, 1997 would be approximately $1.81 billion, $164.4 million and
$1.04 ($1.17 assuming $15.6 million in cost savings from synergies), and would
increase to approximately $2.3 billion, $253.6 million and $2.84, respectively,
by the fiscal year ending September 30, 2000.
The matters considered by Salomon Brothers in arriving at its opinion are
based upon numerous macroeconomic, operating and financial assumptions and
involve the application of complex methodologies and educated judgment. Any
estimates incorporated in the analysis performed by Salomon Brothers
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are not necessarily indicative of actual past or future values or results, which
may be significantly more or less favorable than such estimates. Estimated
values do not purport to be appraisals and do not necessarily reflect the prices
at which businesses or companies may be sold in the future or at which their
shares of capital stock may trade in the future. The foregoing estimates and
projections included estimates and projected results of UNC's businesses which
originally were prepared by UNC prior to the date of the Original UNC Merger
Agreement, solely for use by UNC's management, without involvement or
independent review and analysis by GE, Greenwich or Salomon Brothers and which,
for the sole purpose of rendering their opinion, were assumed by Salomon
Brothers to be accurate. In addition, those estimates and projections included
estimates and projected results of Greenwich's businesses which originally were
prepared by Greenwich prior to the date of the Original UNC Merger Agreement,
solely for use by Greenwich's management, without involvement or independent
review and analysis by GE or Salomon Brothers and which, for the sole purpose of
rendering their opinion, were assumed by Salomon Brothers to be accurate.
Neither of such sets of projections were updated since the date of their initial
preparation. All of such projections and estimates represent the subjective
views of the management of the party which created the same and are based upon
information then available and assumptions made as of the time the estimates and
projections were prepared. Because such estimates are inherently subject to
uncertainty, their inclusion in this Proxy Statement/Prospectus should not be
regarded as an indication that GE, Greenwich, Salomon Brothers or any other
person believes the actual results of a Greenwich-UNC combination on the terms
set forth in the Original Merger Agreement would not have been materially
different.
In arriving at its opinion dated March 9, 1997, and in presenting the
Salomon Brothers Report, Salomon Brothers performed certain financial analyses,
the material portions of which are summarized above. The summary set forth above
does not purport to be a complete description of Salomon Brothers' analyses.
Salomon Brothers believes that its analyses and the summary set forth above must
be considered as a whole and that selecting portions of its analyses could
create an incomplete view of the process underlying the analyses set forth in
the opinion and the Salomon Brothers Report. In performing its analyses, Salomon
Brothers made numerous assumptions with respect to industry performance, general
business, economic, market and financial conditions and other matters, many of
which are beyond the control of GE and Greenwich. The trading values specified
in the Salomon Brothers Report do not purport to be indicative of actual trading
values of GE Common Stock, which may be significantly more or less than the
amounts set forth in the Salomon Brothers Report. Actual values will depend upon
several factors, including events affecting the aircraft parts and services
industry, general economic, market and interest rate conditions and other
factors which generally influence the price of securities.
No company or transaction used in the comparable company analysis or
comparable acquisition analysis summarized above is identical to Greenwich or
the Merger. Accordingly, any such analysis of the value of the proposed Merger
involves complex considerations and judgments concerning differences in the
potential financial and operating characteristics of the comparable companies
and other factors in relation to the trading and acquisition values of the
comparable companies and publicly announced transactions.
Salomon Brothers is an internationally recognized investment banking firm
and regularly engages in the valuation of businesses and their securities in
connection with mergers and acquisitions and for other purposes. The Greenwich
Board selected Salomon Brothers to act as its financial advisor on the basis of
Salomon Brothers' international reputation and its familiarity with Greenwich
and UNC and their respective industries in general. In the course of its
business, Salomon Brothers actively trades the securities of GE, Greenwich and
UNC for its own account and for the accounts of customers. Accordingly, Salomon
Brothers may at any time hold a long or short position in such securities.
FEES PAID TO SALOMON BROTHERS. Pursuant to an engagement letter dated
October 18, 1996, Salomon Brothers was retained as financial advisor to
Greenwich in connection with the UNC Merger and Greenwich agreed to pay Salomon
Brothers a fee equal to 0.625% of the aggregate consideration to be
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paid in the UNC Merger, or approximately $4,350,000, $100,000 of which was
payable upon the execution of the Original UNC Merger Agreement and the
remainder of which is payable upon the consummation of the UNC Merger. Pursuant
to an engagement letter dated March 8, 1997, Salomon Brothers was retained as
financial advisor to Greenwich in connection with the Merger and Greenwich
agreed to pay Salomon Brothers (i) a fee of $1,750,000 payable upon delivery of
the opinion of Salomon Brothers to be paid upon the earlier of (a) the
consummation of the Merger or (b) the termination of the Merger Agreement and
(ii) an additional fee of $4,500,000 (less any fee received pursuant to the
engagement letter dated October 18, 1996), payable upon the consummation of the
Merger, which additional fee is in lieu of the compensation otherwise payable by
Greenwich to Salomon Brothers with respect to the UNC Merger. Greenwich has also
agreed to reimburse Salomon Brothers for its out-of-pocket expenses, including
reasonable fees and disbursements of counsel. Greenwich has agreed to indemnify
Salomon Brothers, and its affiliates, their respective directors, officers,
partners, agents and employees and each person, if any, controlling Salomon
Brothers or any of its affiliates against certain liabilities, including certain
liabilities under the federal securities laws, relating to or arising out of its
engagement.
FORM OF THE MERGER
After the holders of Greenwich Class A Common Stock have adopted the Merger
Agreement and all other conditions to the Merger are satisfied or waived where
permissible, Greenwich will be merged with and into GB Merger Corp. ("Merger
Sub"), with Merger Sub being the surviving corporation after the Merger (the
"Surviving Corporation") and a wholly owned subsidiary of GE. The name of the
Surviving Corporation will be changed to Greenwich Air Services, Inc. The date
on which the closing of the Merger shall occur is referred to herein as the
"Closing Date." GE and Greenwich anticipate that the Closing Date will occur as
promptly as practicable after the Special Meeting, and in no event later than
five business days after the satisfaction or, if permissible, waiver of each of
the conditions to the Merger. The term "Effective Time" means the date and time
of the filing of the Certificate of Merger with the Secretary of State of the
State of Delaware (or such later time as may be agreed by the parties hereto and
specified in the Certificate of Merger).
MERGER CONSIDERATION
At the Effective Time, each share of Greenwich Common Stock issued and
outstanding immediately prior to the Effective Time (other than any shares held
in treasury by Greenwich or its wholly owned subsidiaries or shares owned by GE
or its wholly owned subsidiaries) will be converted into the right to receive
the Stock Consideration (as defined below) or $31.00 in cash (the "Cash
Consideration"), at the election of the holder thereof, subject to adjustment as
described herein so that the stockholders of Greenwich, other than the immediate
members of the Conese family, certain officers and directors of Greenwich, and
GE and its subsidiaries (the "Public Stockholders"), are entitled to elect to
receive, in the aggregate, at least 22% of their total merger consideration in
cash. If all Public Stockholders were to elect to receive cash for all of their
shares, then each Public Stockholder would receive 78% of the merger
consideration in GE Common Stock and 22% in cash. To the extent that Greenwich
Public Stockholders elect to receive more than 78% of their total merger
consideration in GE Common Stock, all Public Stockholders electing cash would
receive the amount of cash they requested. The Conese Stockholders and the other
immediate members of the Conese family, and certain other officers and directors
of Greenwich will, to the extent they elect to receive cash, receive the same
percentage of their individual Merger Consideration in cash as is received by
the Public Stockholders. Stockholders will receive cash in lieu of fractional
shares of GE Common Stock. The "Stock Consideration" is the number of shares of
GE Common Stock approximately equal to the quotient determined by dividing
$31.00 by the Average GE Share Price. The "Average GE Share Price" is the
average of the last sale price per share of GE Common Stock on the NYSE
Composite Tape for the 10 consecutive trading days ending on the trading day
which is five days prior to the Closing Date (the "Valuation Period"). As a
result of the allocation procedures, shares of Greenwich Common Stock may be
converted into the right to receive a combination of cash and
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shares of GE Common Stock representing a prorated percentage of the Cash
Consideration. The actual cash and/or shares of GE Common Stock payable in
respect of any share of Greenwich Common Stock is referred to herein as the
"Merger Consideration."
The Stock Consideration generally is intended to provide a number of shares
of GE Common Stock with a value of $31.00, based upon the Average GE Share
Price, and, therefore, a higher Average GE Share Price would result in fewer
shares of GE Common Stock constituting the Stock Consideration, and a lower
Average GE Share Price would result in more shares of GE Common Stock
constituting the Stock Consideration. For example, if the Average GE Share Price
were equal to $61.00 per share, the Stock Consideration would be equal to .5082
shares of GE Common Stock. An Average GE Share Price greater than $61.00 would
result in fewer than .5082 shares of GE Common Stock constituting the Stock
Consideration and an Average GE Share Price of less than $61.00 would result in
more than .5082 shares of GE Common Stock constituting the Stock Consideration.
The Merger Agreement provides that the Valuation Period will end five days
prior to the Closing Date, and therefore the number of shares of GE Common Stock
constituting the Stock Consideration will be fixed at that time. The market
price of GE Common Stock and hence the value of the Stock Consideration are
expected to fluctuate with the performance of GE and general market conditions
during the five-day period between the end of the Valuation Period and the
Closing Date. Thus, the last sale price of GE Common Stock on the Closing Date
may be higher or lower than the Average GE Share Price and, as a result, the
value of the Stock Consideration at the Closing Date may be more or less than
$31.00.
If, as expected, the Special Meeting occurs prior to the end of the
Valuation Period, the precise number of shares of GE Common Stock constituting
the Stock Consideration will not be known at the time the vote on the approval
of the Merger Agreement is held. As part of its ongoing stock repurchase
program, GE may reacquire shares of its common stock during the Valuation
Period. See "SUMMARY SELECTED FINANCIAL DATA -- Comparative Per Share Data."
If between the date of the Merger Agreement and the Effective Time the
outstanding shares of GE Common Stock have been changed into a different number
of shares or a different class, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of shares,
the Merger Agreement provides that the Stock Consideration will be
correspondingly adjusted to the extent appropriate to reflect such changes. In
lieu of fractional shares of GE Common Stock, GE shall pay to each holder who
would otherwise be entitled to receive a fractional share an amount in cash
equal to the product of (i) the fractional share interest to which such holder
would otherwise be entitled and (ii) the Average GE Share Price.
If either counsel to GE or Greenwich cannot render the required tax opinion
(as reasonably determined by counsel to GE or Greenwich and concurred in by the
other) as a result of the Merger potentially failing to satisfy continuity of
interest requirements under applicable federal income tax principles relating to
reorganizations under Section 368(a) of the Code, then GE shall reduce the
percentage of shares of Greenwich Common Stock which can be exchanged for cash
to the minimum extent necessary to enable the relevant tax opinion or opinions,
as the case may be, to be rendered. Pursuant to this provision, GE has already
reduced the maximum percentage of the Merger Consideration which Public
Stockholders can exchange for cash from 55% to approximately 22%, and this
percentage is subject to further adjustment as described in the preceding
sentence. See "-- Background of the Merger."
EFFECTIVE TIME
The Merger will become effective upon the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware, in accordance with
applicable law. Such filing will be made as promptly as practicable after
satisfaction or, if permissible, waiver of the conditions to the Merger.
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DESCRIPTION OF ELECTION PROCEDURES
ELECTION. Subject to the allocation procedures described below, each holder
of record of Greenwich Common Stock as of the record date for the Special
Meeting will be entitled, with respect to the Merger Consideration to be
received for each share of Greenwich Common Stock held by such holder, to elect
to receive the Cash Consideration (a "Cash Election"). IF A HOLDER OF GREENWICH
COMMON STOCK DOES NOT MAKE A CASH ELECTION, SUCH HOLDER SHALL RECEIVE THE STOCK
CONSIDERATION.
Along with the mailing of this Proxy Statement/Prospectus, GE and Greenwich
will send a yellow form of election (a "Form of Election") to each holder of
record of Greenwich Common Stock as of the record date for the Special Meeting
or such other date as GE and Greenwich shall mutually agree. GE and Greenwich
will make available Forms of Election and copies of the Proxy
Statement/Prospectus to all persons who become holders (or beneficial owners) of
Greenwich Common Stock between the record date for the Special Meeting and the
close of business on the day prior to the Election Deadline (as defined below).
All Cash Elections shall be made on a Form of Election. To make an effective
Cash Election with respect to shares of Greenwich Common Stock, the holder
thereof must, in accordance with the Form of Election, complete properly, sign
and return the Form of Election to ChaseMellon Shareholder Services, L.L.C. (the
"Exchange Agent"), accompanied by his or her certificates representing the
shares of Greenwich Common Stock (the "Certificates") as to which the election
is being made (or an appropriate guarantee of delivery by an appropriate trust
company in the United States or a member of a registered national securities
exchange or the NASD), prior to the close of business on the last business day
(the "Election Deadline") prior to the Closing Date. If all other conditions set
forth in the Merger Agreement have been met or, if permissible, waived, the
Closing Date is expected to occur as soon as practicable after the Special
Meeting.
IF GE OR THE EXCHANGE AGENT DETERMINES THAT ANY PURPORTED CASH ELECTION WAS
NOT PROPERLY MADE OR WAS RECEIVED AFTER THE ELECTION DEADLINE, SUCH PURPORTED
CASH ELECTION SHALL BE DEEMED TO BE OF NO FORCE AND EFFECT AND THE STOCKHOLDER
MAKING SUCH PURPORTED ELECTION SHALL RECEIVE THE STOCK CONSIDERATION.
Any holder of Greenwich Common Stock may (i) change such holder's election
by submitting a revised Form of Election, properly completed and signed, that is
received by the Exchange Agent prior to the Election Deadline, or (ii) revoke
such stockholder's election and withdraw his or her Certificates deposited with
the Exchange Agent by written notice to the Exchange Agent received prior to the
Election Deadline. GE will have the discretion, which it may delegate in whole
or in part to the Exchange Agent, reasonably to determine whether Forms of
Election have been properly completed, signed and submitted or revoked and to
disregard immaterial defects in Forms of Election. The decision of GE (or the
Exchange Agent) in such matters shall be conclusive and binding. The Exchange
Agent shall make a good faith effort to notify any person of any defect in a
Form of Election not waived by GE.
Any holder of record of Greenwich Common Stock who does not submit a Form of
Election which is received and accepted as such by the Exchange Agent prior to
the Election Deadline shall receive the Stock Consideration. NEITHER GREENWICH
NOR THE GREENWICH BOARD MAKES ANY RECOMMENDATION AS TO WHETHER STOCKHOLDERS
SHOULD ELECT TO RECEIVE THE CASH CONSIDERATION IN THE MERGER. EACH HOLDER OF
GREENWICH COMMON STOCK MUST MAKE HIS OR HER OWN DECISION WITH RESPECT TO SUCH
CASH ELECTION.
Subject to possible adjustment as described above, a maximum percentage of
the aggregate Merger Consideration will be paid in cash. Accordingly, there can
be no assurance that each holder of Greenwich Common Stock will receive the
amount of Cash Consideration that such holder elects with respect to all shares
of Greenwich Common Stock held by such holder. If the Cash Elections result in
an oversubscription in respect of the Cash Consideration, the procedures for
allocating cash, described below under "-- ALLOCATION; PRORATION," will be
followed by the Exchange Agent.
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ALLOCATION; PRORATION. If the aggregate number of shares of Greenwich Common
Stock covered by Cash Elections (the "Cash Election Shares") exceeds the "Cash
Election Number" (22% of the merger consideration allocable to the shares of
Greenwich Common Stock owned by the Public Stockholders) all shares of Greenwich
Common Stock as to which valid Forms of Election have not been received shall be
converted into the right to receive the Stock Consideration, and each Cash
Election Share shall be converted into the right to receive (i) an amount in
cash, without interest, equal to the product of (x) the Cash Consideration and
(y) a fraction (the "Cash Fraction"), the numerator of which shall be the Cash
Election Number and the denominator of which shall be the total number of Cash
Election Shares and (ii) such number of shares (rounded to the nearest
one-thousandth of a share) of GE Common Stock equal to the product of (x) the
Cash Consideration divided by the Average GE Share Price and (y) a fraction
equal to one minus the Cash Fraction.
If the aggregate number of Cash Election Shares does not exceed the Cash
Election Number, all Cash Election Shares shall be converted into the right to
receive the Cash Consideration, and all other shares shall be converted into the
right to receive the Stock Consideration.
AS A RESULT OF THE PRORATION AND OTHER LIMITATIONS, HOLDERS OF SHARES OF
GREENWICH COMMON STOCK MAY RECEIVE A COMBINATION OF SHARES OF GE COMMON STOCK
AND CASH, NOTWITHSTANDING THE CASH ELECTION MADE BY SUCH HOLDERS. SUCH HOLDERS
WILL NOT BE ABLE TO CHANGE THE AMOUNTS OF GE COMMON STOCK OR THE CASH
CONSIDERATION ALLOCATED TO THEM.
PROCEDURES FOR EXCHANGE OF GREENWICH COMMON STOCK CERTIFICATES
At the Effective Time, GE will make available to the Exchange Agent for the
benefit of the holders of shares of Greenwich Common Stock, for exchange,
certificates evidencing shares of GE Common Stock and cash in amounts required
to be exchanged for shares of Greenwich Common Stock in the Merger.
As promptly as practicable after the Effective Time, the Exchange Agent will
mail to each holder of Certificates (to the extent such Certificates have not
already been submitted with Forms of Election) (i) a letter of transmittal
(which specifies that delivery will be effected, and risk of loss and title to
the Certificates shall pass, only upon proper delivery of the Certificates to
the Exchange Agent) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for the Merger Consideration.
Upon surrender to the Exchange Agent of a Certificate for cancellation,
together with a letter of transmittal, duly executed and completed in accordance
with the instructions thereto, and such other documents as may be reasonably
required pursuant to such instructions, the holder of such Certificate shall be
entitled to receive in exchange therefor the appropriate Merger Consideration.
No dividends or other distributions with respect to GE Common Stock declared
or made after the Effective Time with a record date after the Effective Time
will be paid to the holder of any unsurrendered Certificate with respect to the
shares of GE Common Stock represented thereby, and no cash payment in lieu of
any fractional shares will be paid to any such holder, until the holder of such
Certificate surrenders such Certificate. Subject to the effect of escheat, tax
or other applicable laws, following the surrender of any such Certificate, the
holder of such Certificate representing whole shares of GE Common Stock issued
in exchange therefor will be paid, without interest, (i) the amount of any cash
payable with respect to a fractional share of GE Common Stock to which such
holder is entitled and the amount of dividends or other distributions with a
record date after the Effective Time and theretofore paid with respect to such
whole shares of GE Common Stock and (ii) at the appropriate payment date, the
amount of dividends or other distributions, with a record date after the
Effective Time but prior to surrender and a payment date occurring after
surrender, payable with respect to such whole shares of GE Common Stock.
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At the Effective Time, the stock transfer books of Greenwich will be closed
and there shall be no further registration of transfers of shares of Greenwich
Common Stock thereafter on the records of Greenwich. From and after the
Effective Time, holders of Certificates will cease to have any rights with
respect to shares of Greenwich Common Stock, except as otherwise provided in the
Merger Agreement or by law.
ANTICIPATED ACCOUNTING TREATMENT
The Merger will be accounted for by GE under the "purchase" method of
accounting in accordance with generally accepted accounting principles.
Therefore, the aggregate Merger Consideration paid by GE in connection with the
Merger will be allocated to Greenwich's assets and liabilities based on their
fair market values with any excess being treated as goodwill. The assets and
liabilities and results of operations of Greenwich will be consolidated into the
assets and liabilities and results of operations of GE subsequent to the
Effective Time.
PLANS FOR GREENWICH AFTER THE MERGER
After the Merger, Greenwich will be a wholly owned subsidiary of GE. Except
as indicated in this Proxy Statement/Prospectus, GE does not have any present
plans or proposals which relate to or would result in an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving
Greenwich, a sale or transfer of a material amount of assets of Greenwich or any
of its subsidiaries or any material change in Greenwich's equity capitalization,
or any other material changes in Greenwich's business. While no decision has
been made, GE is contemplating the repurchase of certain of Greenwich's
outstanding debt securities.
Simultaneously with the execution of the Merger Agreement, Greenwich and UNC
entered into the UNC Merger Agreement. If approved by the holders of UNC common
stock, par value $.20 per share (the "UNC Common Stock"), Condor Acquisition
Corp., a wholly owned subsidiary of Greenwich, will be merged with and into UNC,
with UNC being the surviving corporation and a wholly owned subsidiary of
Greenwich. Greenwich and UNC anticipate that the closing of the UNC Merger will
occur as promptly as practicable after the satisfaction or, if permissible,
waiver of each of the conditions to the UNC Merger, including the approval of
the UNC Merger Agreement by the holders of the requisite number of shares of UNC
Common Stock. It is a condition to the UNC Merger that all the conditions to the
GE-Greenwich Merger shall have been satisfied or, if permissible, waived.
The UNC Merger Agreement provides that, as of the UNC Effective Time (as
defined in the UNC Merger Agreement), each share of UNC Common Stock and each
share of UNC Common Stock issuable upon conversion of each share of UNC Series B
Preferred Stock, par value $1.00 per share, issued and outstanding immediately
before the UNC Effective Time (other than any shares held in treasury by any
subsidiary of UNC, Greenwich, Condor Acquisition Corp. or any other subsidiary
of Greenwich), and each share of UNC Common Stock issuable upon exercise of each
UNC stock option, will be converted into the right to receive an amount equal to
$15.00 in cash payable without interest to the holder upon surrender of such
holder's UNC Common Stock certificates. Furthermore, all unexercised UNC stock
options which are outstanding at the UNC Effective Time will be canceled and
converted into the right to receive a cash payment equal to the product of (i)
the number of shares of UNC Common Stock issuable upon the exercise of the
unexercised UNC stock options and (ii) the difference between $15.00 and the
applicable exercise price per share attributable to such unexercised UNC stock
options.
CERTAIN OTHER EFFECTS OF THE MERGER
If the Merger is consummated, shares of Greenwich Common Stock will cease to
be listed on Nasdaq. Greenwich may continue to file periodic reports pursuant to
the Securities Exchange Act of 1934 (the
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"Exchange Act") after the Merger is consummated if it continues to have publicly
held debt securities outstanding.
After the Merger, stockholders of Greenwich will become stockholders of GE,
to the extent such stockholders elect to receive the Stock Consideration (or do
not elect the Cash Consideration). Upon consummation of the Merger, the rights
of all such former stockholders of Greenwich will be governed by applicable New
York law (rather than the DGCL), including the New York Business Corporation Law
(the "NYBCL"), and by the certificate of incorporation and bylaws of GE. For a
description of the differences between the rights of GE and Greenwich
stockholders, see "COMPARISON OF RIGHTS OF GREENWICH STOCKHOLDERS AND GE
STOCKHOLDERS."
SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION
Assuming there has been no exercise of Greenwich stock options prior to the
Effective Time, and assuming that the maximum amount of Cash Consideration is
paid to Greenwich stockholders, approximately $274 million will be required to
pay the cash portion of the Merger Consideration to the holders of Greenwich
Common Stock (other than GE), and it is expected that approximately $5.9 million
will be required to pay the expenses of GE in connection with the Merger, all of
which will be furnished from available general funds of GE. It is currently
expected that approximately $8 million will be required to pay the expenses of
Greenwich related to the Merger, which amount will be furnished from available
general funds of Greenwich. See "THE MERGER AGREEMENT -- Expenses."
FORWARD-LOOKING STATEMENTS MAY PROVE INACCURATE
GE and Greenwich have made forward-looking statements, as such term is used
in the Private Securities Litigation Reform Act of 1995, in this document and
those documents to which we have referred you that are subject to risks and
uncertainties. Forward-looking statements include the information concerning
possible or assumed future results of operations of GE and Greenwich set forth
under "-- Reasons for the Merger; Recommendation of the Greenwich Board of
Directors" and "-- Fairness Opinion of Salomon Brothers" and those preceded by,
followed by or that include the words "believes," "expects," "anticipates" or
similar expressions. You should understand that the following important factors,
in addition to those discussed elsewhere in this document and in the documents
which are incorporated by reference, could affect the future results of
Greenwich and GE, and could cause those results to differ materially from those
expressed in the forward-looking statements of Greenwich and GE: materially
adverse changes in economic conditions and in the markets served by Greenwich
and GE; the failure of certain of Greenwich's customers to renew their contracts
with Greenwich; and a significant delay in the expected closing of the Merger.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
THE FOLLOWING IS A SUMMARY OF THE MATERIAL FEDERAL INCOME TAX CONSEQUENCES
OF THE MERGER. THIS SUMMARY DOES NOT DISCUSS TAX CONSEQUENCES TO CATEGORIES OF
HOLDERS ENTITLED TO SPECIAL TREATMENT UNDER THE INTERNAL REVENUE CODE INCLUDING,
WITHOUT LIMITATION, FOREIGN PERSONS, TAX-EXEMPT ORGANIZATIONS, INSURANCE
COMPANIES, FINANCIAL INSTITUTIONS AND DEALERS IN STOCKS AND SECURITIES. NO
RULINGS WILL BE SOUGHT FROM THE INTERNAL REVENUE SERVICE WITH RESPECT TO THE
FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER. THIS SUMMARY IS BASED UPON
FEDERAL INCOME TAX LAWS, REGULATIONS, RULINGS AND DECISIONS IN EFFECT AS OF THE
DATE HEREOF, ALL OF WHICH ARE SUBJECT TO CHANGE, RETROACTIVELY OR PROSPECTIVELY,
AND TO DIFFERING INTERPRETATION. GREENWICH STOCKHOLDERS ARE URGED TO CONSULT
THEIR OWN TAX ADVISORS AS TO SPECIFIC TAX CONSEQUENCES TO THEM OF THE MERGER AND
THE OTHER TRANSACTIONS CONTEMPLATED HEREIN.
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Consummation of the Merger is conditioned upon the receipt by GE and
Greenwich of the opinions of their respective counsel, Shearman & Sterling in
the case of GE, and Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.,
in the case of Greenwich, each dated as of the Closing Date, to the effect that,
on the basis of the facts, representations and assumptions set forth in such
opinions, the Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code, and that each
of GE, Merger Sub and Greenwich will be a party to that reorganization within
the meaning of Section 368(b) of the Code. If either or both of such opinions
are unable to be issued because of a concern that the Merger would not satisfy
the "continuity of interest" requirement for tax free reorganization treatment,
the number of shares of GE Common Stock to be issued in the Merger will be
further increased to the minimum extent necessary to enable such opinion(s) to
be issued and the amount of Cash Consideration will accordingly be reduced. See
"-- Description of Election Procedures."
If, in accordance with the opinions referred to above, the Merger will be
treated as a reorganization within the meaning of Section 368(a) of the Code,
and GE, Merger Sub and Greenwich will each be a party to that reorganization
under Section 368(b) of the Code, then (i) no gain or loss will be recognized by
GE or Greenwich as a result of the Merger; (ii) no gain or loss will be
recognized by the stockholders of Greenwich upon the exchange of Greenwich
Common Stock SOLELY for Stock Consideration except in respect of cash received
in lieu of a fractional share of GE Common Stock (as discussed below); (iii) the
adjusted tax basis of the GE Common Stock to be received by the stockholders of
Greenwich will be the same as such holders' adjusted tax basis in the Greenwich
Common Stock surrendered in exchange therefor increased by the amount of any
gain recognized and by any amount treated as a dividend each as described below
and decreased by the amount of any cash received; (iv) the holding period of the
GE Common Stock to be received by the stockholders of Greenwich in connection
with the Merger will include the holding period of the Greenwich Common Stock
surrendered in exchange therefor, PROVIDED that such shares of Greenwich Common
Stock are held as capital assets at the Effective Time of the Merger; (v)
stockholders of Greenwich will recognize gain or loss upon the exchange of
Greenwich Common Stock solely for Cash Consideration; and (vi) a stockholder of
Greenwich who receives a combination of Cash Consideration and Stock
Consideration in exchange for his Greenwich Common Stock will not recognize loss
but will recognize gain, if any, to the extent of the lesser of (a) the Cash
Consideration and (b) the excess of the sum of the Cash Consideration and Stock
Consideration received over such stockholder's adjusted tax basis in exchanged
Greenwich Common Stock. As discussed above, the federal income tax consequences
of the Merger to a stockholder will depend on whether he exchanges his Greenwich
Common Stock for cash, GE Common Stock, or a combination thereof, and may
further depend on whether (i) he is deemed to constructively own shares of
Greenwich Common Stock under Section 318 of the Code (which generally deems a
person to own stock that is owned by certain family members or related entities
or that is the subject of any option or options owned or deemed owned by such
person), and (ii) he actually or constructively owns any GE Common Stock. In
addition, if a stockholder has differing bases and/or holding periods in respect
of his shares of Greenwich Common Stock, he should consult his own tax advisors
prior to the exchange with regard to identifying the bases and/or holding
periods of the particular shares of GE Common Stock received in the exchange.
In general, any gain or loss recognized by a holder of Greenwich Common
Stock under clause (v) above will be capital gain or loss and will be long-term
capital gain or loss if, as of the date of the exchange, such stockholder has
held such Greenwich Common Stock for more than one year. If, however, any such
stockholder constructively owns shares of Greenwich Common Stock that are
exchanged for shares of GE Common Stock in the Merger, or, possibly, actually or
constructively owns shares of GE Common Stock, in unusual circumstances the
consequences to him may be similar to the consequences described below where
Cash Consideration is received under clause (vi), except that the amount of
consideration, if any, treated as a dividend would not be limited to the amount
of his gain or to his ratable share of accumulated earnings and profits.
Stockholders of Greenwich who constructively own shares of Greenwich Common
Stock that are exchanged for shares of GE Common Stock in the Merger, or
actually or constructively own shares of GE Common Stock are accordingly advised
to consult their own tax
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advisors concerning the U.S. federal income tax consequences of exchanging their
Greenwich Common Stock in the Merger.
In general, any gain recognized by a holder of Greenwich Common Stock under
clause (vi) above will be capital gain and will be long-term capital gain if, as
of the date of the exchange, such stockholder held such Greenwich Common Stock
for more than one year. In certain instances, however, the receipt of the Cash
Consideration under clause (vi) may have the effect of the distribution of a
dividend for U.S. federal income tax purposes, in which case any recognized gain
will be treated as ordinary dividend income to the extent of such stockholder's
ratable share of Greenwich's accumulated earnings and profits. Stockholders of
Greenwich who exchange their Greenwich Common Stock for a combination of Cash
Consideration and Stock Consideration are accordingly advised to consult their
own tax advisors concerning the U.S. federal income tax consequences of
exchanging their Greenwich Common Stock for such a combination of consideration.
Cash received in lieu of a fractional share of GE Common Stock will be
treated as received in redemption of such fractional share and gain or loss will
be recognized, measured by the difference between the amount of cash received
and the portion of the basis of the share of Greenwich Common Stock allocable to
such fractional interest. Such gain or loss will constitute capital gain or
loss, and will be long-term capital gain or loss if the holding period for such
shares of Greenwich Common Stock was greater than one year as of the date of the
exchange.
BACKUP WITHHOLDING. Under the backup withholding rules, a holder of GE
Common Stock may be subject to backup withholding at the rate of 31% with
respect to dividends and redemption proceeds, unless such stockholder (a) is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact or (b) provides a correct taxpayer identification number,
certifies as to no loss of exemption from backup withholding and otherwise
complies with the applicable requirements of the backup withholding rules. Any
amount withheld under these rules will be credited against the stockholder's
federal income tax liability. GE may require holders of GE Common Stock to
establish an exemption from backup withholding or to make arrangements
satisfactory to GE with respect to the payment of backup withholding. A
stockholder who does not provide GE with his or her correct taxpayer
identification number or who otherwise does not establish an exemption may, in
addition to being subject to backup withholding at the rate of 31% with respect
to dividends and redemption proceeds, be subject to penalties imposed by the
Internal Revenue Service.
BLUE SKY LAWS
As of the date of this Proxy Statement/Prospectus, GE intends to register or
qualify the shares of GE Common Stock offered by this Proxy Statement/Prospectus
under the securities laws of all states where it is not exempt. Certain states
require notice filings or other filings. GE either has complied with these
filing requirements or intends to comply with them in a timely fashion.
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APPRAISAL RIGHTS
There are no rights of appraisal available in connection with the Merger.
CERTAIN LITIGATION
Greenwich and members of its Board of Directors have been named as
defendants in a putative class action lawsuit filed in the Court of Chancery of
the State of Delaware, County of New Castle. FEDER V. GREENWICH AIR SERVICES,
INC. ET AL, C.A. 15615. The complaint alleges that Greenwich's Board failed to
maximize stockholder value and otherwise breached its fiduciary duties. The
complaint seeks, among other things, to enjoin the completion of the merger and
unspecified money damages. Greenwich believes that this lawsuit is without merit
and intends to defend it vigorously.
In addition, GE is the subject of a putative class action lawsuit brought by
a stockholder of UNC and filed in the Superior Court of the State of Delaware,
County of New Castle. ZUCKERBRAUN V. GENERAL ELECTRIC COMPANY AND GB MERGER
CORP., C.A. 97C-05-36 VAB. The complaint alleges that GE engaged in economic
duress and tortious interference with the original UNC-Greenwich merger
agreement, and seeks $18 million in damages. GE believes that this lawsuit is
without merit and intends to defend it vigorously.
THE MERGER AGREEMENT
The following is a summary of the material provisions of the Merger
Agreement not summarized elsewhere in this Proxy Statement/Prospectus. The
summary is qualified in all respects by reference to the complete text of the
Merger Agreement, which is incorporated by reference in its entirety and
attached to this Proxy Statement/Prospectus as Annex I.
CERTAIN REPRESENTATIONS AND WARRANTIES
The Merger Agreement contains certain representations and warranties of
Greenwich with respect to Greenwich and its subsidiaries as to, among other
things: (i) due organization, valid existence and good standing; (ii) the
completeness and correctness of organizational documents; (iii) Greenwich's
capital structure; (iv) the due authorization, execution, delivery and
enforceability of the Merger Agreement and the transactions contemplated
thereby; (v) the absence, other than as disclosed, of any conflict between the
execution and performance of the Merger Agreement and Greenwich's organizational
documents, applicable law and certain contracts; (vi) the absence of any
required consent or permit of, or filing with any governmental or regulatory
authority, except as provided in the Merger Agreement; (vii) the accuracy of
Greenwich's recent reports filed with the Commission and the financial
statements contained therein; (viii) the absence of material adverse changes or
events; (ix) the absence of material pending or threatened litigation against
Greenwich; (x) the absence of changes to, and the qualification, operation and
liability under, certain employee benefit plans; (xi) Greenwich's labor
relations; (xii) title to and sufficiency of Greenwich's assets; (xiii) the
right to use intellectual property; (xiv) certain tax matters and the payment of
taxes; (xv) certain environmental matters; (xvi) the existence, legality and
effect of material contracts and government contracts; (xvii) relationships with
Greenwich's suppliers; (xviii) the absence of actions that would prevent the
Merger from constituting a transaction qualifying under Section 368(a) of the
Code; (xix) the existence and sufficiency of Greenwich's insurance coverage;
(xx) the approval of the Merger Agreement by the Greenwich Board; (xxi) the vote
required by Greenwich's stockholders; (xxii) the accuracy of information
supplied to GE by Greenwich; (xxiii) except as disclosed, the absence of
transactions with affiliates; (xxiv) the receipt of an opinion of Greenwich's
financial advisor as to the fairness of the Merger Consideration; and (xxv) the
absence of any brokerage, finder's or similar fee in connection with the Merger
(except for Salomon Brothers).
The Merger Agreement also contains certain representations and warranties of
GE with respect to GE and Merger Sub as to, among other things: (i) due
organization, valid existence and good standing; (ii) the completeness and
correctness of organizational documents; (iii) the authority and validity of the
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GE Common Stock to be issued in the Merger; (iv) the due authorization,
execution, delivery and enforceability of the Merger Agreement and the
transactions contemplated thereby; (v) the absence, other than as disclosed, of
any conflict with GE's organizational documents, applicable law and certain
contracts; (vi) the absence of any required consent or permit of, or filing with
any governmental authority, except as provided in the Merger Agreement; (vii)
the accuracy of GE's recent reports filed with the Commission and the financial
statements contained therein; (viii) the absence of material adverse changes or
events; and (ix) the absence of any brokerage, finder's or similar fee in
connection with the Merger.
CONDUCT OF BUSINESS PENDING THE MERGER
During the period from the date of the Merger Agreement and continuing until
the Effective Time, Greenwich has agreed as to itself and its subsidiaries that
(except as expressly contemplated or permitted by the Merger Agreement or as
otherwise indicated on the disclosure schedule delivered by Greenwich to GE or
to the extent that GE otherwise consents in writing) Greenwich and its
subsidiaries will carry on their respective businesses in the usual, regular and
ordinary course in all material respects, in substantially the same manner as
previously conducted, and will use all reasonable efforts to preserve intact
their present lines of business, to keep available the services of their current
officers, employees and consultants and to preserve their relationships with
customers, distributors, suppliers, licensors, licensees, contractors and others
with which Greenwich and its subsidiaries have significant business relations.
By way of amplification and without limiting the foregoing, the Merger Agreement
places restrictions on the ability of Greenwich to (i) amend its charter or
bylaws; (ii) issue or sell capital stock, any related options or warrants or any
assets; (iii) pay a dividend, other than its regularly scheduled periodic cash
dividends; (iv) effect a stock split, combination or reclassification; (v) make
material acquisitions of other entities or enter into or amend material
contracts, except as contemplated by the UNC Merger Agreement; (vi) incur
indebtedness or authorize material capital expenditures; (vii) increase
compensation to officers or employees or adopt or amend any collective
bargaining agreements or employee benefit plans; (viii) acquire or dispose of
real estate or other material assets; (ix) accelerate the collection of accounts
receivable or delay the payment of accounts payable; (x) make any material tax
election or settle any tax liability; (xi) take any action that is likely to
result in the covenants, agreements or conditions of the Merger Agreement not
being satisfied as of the Closing Date; (xii) make any material changes in its
accounting policies; (xiii) knowingly act in a way that could reasonably be
expected to prevent the Merger from constituting a transaction qualifying under
Section 368(a) of the Code; or (xiv) make any material payments not in the
ordinary course of business.
NO SOLICITATION OF COMPETING TRANSACTIONS
Pursuant to the Merger Agreement, Greenwich has agreed that neither it nor
any of its subsidiaries will directly or indirectly initiate, solicit or
knowingly encourage (including by way of furnishing nonpublic information or
assistance), or take any other action to facilitate knowingly any inquiries or
the making of any proposal that constitutes, or may reasonably be expected to
lead to, any Competing Transaction (as defined below), or enter into or maintain
or continue discussions or negotiate with any person or entity in furtherance of
such inquiries or to obtain a Competing Transaction, or agree to or endorse any
Competing Transaction, or authorize or permit any of the officers, directors or
employees of Greenwich or any of its subsidiaries or any investment banker,
financial advisor, attorney, accountant or other agent or representative of
Greenwich or its subsidiaries to take any such action, and Greenwich will notify
GE orally (within three business days) and in writing (as promptly as
practicable) of all of the relevant details relating to such inquiry or proposal
and, if such inquiry or proposal is in writing, Greenwich must deliver to GE a
copy of such inquiry or proposal, except that nothing contained in the Merger
Agreement will prohibit Greenwich or its Board of Directors from (i) complying
with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or
exchange offer, (ii) referring any third party to the section of the Merger
Agreement restricting the solicitation of Competing Transactions or making a
copy of the section available to any third party, (iii) failing to make or
withdrawing or modifying its recommendation to Greenwich stockholders to
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vote in favor of the Merger following the making of a proposal that constitutes,
or may reasonably be expected to lead to, a Competing Transaction if the
Greenwich Board, after consultation with independent legal counsel (who may be
Greenwich's regularly engaged independent legal counsel), determines in good
faith that such action is necessary for the directors of Greenwich to comply
with their fiduciary duties to Greenwich or its stockholders under applicable
law, or (iv) terminating the Merger Agreement and the transactions contemplated
thereby in accordance with the termination provision relating to Superior
Proposals (as defined below). See "-- Termination; Effects of Termination."
Greenwich agreed not to release any third party from, or waive any provision of,
any confidentiality or standstill agreement to which Greenwich is a party.
"Competing Transaction" means any of the following involving Greenwich or
any of its subsidiaries: (i) any merger, consolidation, share exchange,
recapitalization, business combination or other similar transaction; (ii) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition of 15% or
more of the assets of Greenwich and its subsidiaries, taken as a whole, in a
single transaction or series of related transactions; (iii) any tender offer or
exchange offer for 15% or more of the shares of Greenwich Class A Common Stock
or Greenwich Class B Common Stock or the filing of a registration statement
under the Securities Act of 1933 (the "Securities Act") in connection therewith;
(iv) any person having acquired beneficial ownership or the right to acquire
beneficial ownership of, or any "group" (as such term is defined under Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder)
having been formed which beneficially owns or has the right to acquire
beneficial ownership of, 15% or more of the shares of Greenwich Class A Common
Stock or Greenwich Class B Common Stock; or (v) any public announcement of a
proposal, plan or intention to do any of the foregoing or any agreement to
engage in any of the foregoing.
If the Greenwich Board determines that it has received a Superior Proposal
(as defined below), the Greenwich Board may give GE notice (a "Superior Proposal
Notice") of its intent to accept such Superior Proposal and the giving of such
notice will not be a breach of the Merger Agreement. "Superior Proposal" means
any proposal made by a third party to acquire, directly or indirectly, including
pursuant to a merger, consolidation, share exchange, recapitalization, business
combination, liquidation, dissolution or other similar transaction, for
consideration consisting of cash and/or securities, more than 50% of the
aggregate voting power or capital stock of Greenwich then outstanding or all or
substantially all of the assets of Greenwich and otherwise on terms and
conditions to closing which the Greenwich Board determines in its good faith
judgment (based on the advice of a financial advisor of nationally recognized
reputation and independent counsel) to be more favorable to Greenwich
stockholders than the Merger and for which financing, to the extent required, is
then committed or which, in the good faith judgment of the Greenwich Board, is
reasonably capable of being obtained by such third party.
INDEMNIFICATION AND INSURANCE
In the Merger Agreement, Greenwich and GE have agreed that (i) GE and the
Surviving Corporation will maintain, for a period of seven years after the
Effective Time, the current provisions regarding indemnification of directors
and officers contained in Greenwich's certificate of incorporation (the
"Greenwich Charter") and bylaws (the "Greenwich Bylaws") and (ii) the Surviving
Corporation will maintain, for a period of three years after the Effective Time,
directors' and officers' liability insurance policies covering persons who are
currently covered in their capacities by Greenwich's current directors' and
officers' policies and on terms not materially less favorable than existing
policies.
GE will guarantee the Surviving Corporation's indemnification obligations
under the Merger Agreement and under the UNC Merger Agreement. Effective upon
the consummation of the Merger and the UNC Merger, GE will also guarantee the
obligations of the surviving corporation of the UNC Merger under the
indemnification provisions of the UNC Merger Agreement. In addition to, and not
in lieu of the foregoing, GE will indemnify, defend and hold harmless all
directors and officers of Greenwich (the "Greenwich Indemnified Parties") and
all directors and officers of UNC (the "UNC Indemnified Parties"
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and, together with the Greenwich Indemnified Parties, the "Indemnified Parties")
to the fullest extent permitted by the DGCL and in the charter and bylaws of
Greenwich and UNC, as currently in effect, from and against all liabilities,
costs, expenses and claims (including without limitation reasonable legal fees
and disbursements, which shall be paid, reimbursed or advanced by GE in a manner
consistent with applicable provisions of GE's bylaws (the "GE Bylaws")) related
to the Merger and other transactions contemplated by the Merger Agreement, which
may be asserted against the Indemnified Parties from and after the date of the
Merger Agreement, other than liabilities resulting from a breach of the
fiduciary duties of any of such Indemnified Parties; except that (i) GE's
obligations to the Greenwich Indemnified Parties will not be effective until
consummation of the Merger and (ii) GE's obligations to the UNC Indemnified
Parties will not be effective until the consummation of both the UNC Merger and
the Merger.
STOCK EXCHANGE LISTING
The shares of GE Common Stock to be issued in the Merger are listed on the
New York Stock Exchange.
CONDITIONS TO CONSUMMATION OF THE MERGER
CONDITIONS TO EACH PARTY'S OBLIGATIONS TO CONSUMMATE THE MERGER. The
obligations of GE, Greenwich and Merger Sub to effect the Merger are subject to
the satisfaction or waiver of the following conditions on or prior to the
Closing Date of the Merger:
- STOCKHOLDER APPROVAL. Approval of the Merger Agreement and all of the
transactions contemplated thereby by a majority of the outstanding shares
of Greenwich Class A Common Stock;
- HSR ACT. The waiting period applicable to the Merger under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act")
having expired or terminated;
- NO PROCEEDINGS. No order, statute, rule, regulation, executive order,
stay, decree, judgment or injunction having been enacted, entered, issued,
promulgated or enforced by any governmental authority or a court of
competent jurisdiction which has the effect of making the Merger illegal
or otherwise prohibiting consummation of the Merger;
- EFFECTIVE REGISTRATION STATEMENT. The Registration Statement being
declared effective and no stop order issued by the Commission suspending
the effectiveness of the Registration Statement being in effect and no
proceeding for that purpose pending or being then threatened by the
Commission;
- STOCK EXCHANGE LISTING. The shares of GE Common Stock to be issued in the
Merger having been authorized for listing on the NYSE, subject to official
notice of issuance; and
- OTHER REGULATORY APPROVALS. All other necessary and material governmental
and regulatory clearances, consents or approvals having been received,
other than the consent to assignment of Greenwich's FAA Certificate, which
need not be received prior to the Effective Time.
ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF GE AND MERGER SUB. The
obligations of GE and Merger Sub to consummate the Merger are subject to the
satisfaction or waiver of the following additional conditions:
- COMPLIANCE WITH OBLIGATIONS. Greenwich having performed in all material
respects all of its obligations required to be performed by it at or prior
to the Effective Time, and GE having received a certificate signed by an
executive officer of Greenwich to such effect;
- REPRESENTATIONS AND WARRANTIES TRUE. Each of the representations and
warranties of Greenwich set forth in the Merger Agreement having been true
and correct when made and on and as of the Closing Date of the Merger as
if made on and as of such date (this condition is satisfied unless the
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failure to be true and correct would have a material adverse effect on
Greenwich), and GE having received a certificate signed by an executive
officer of Greenwich to such effect;
- COLD COMFORT. GE having received "cold comfort" letters of Deloitte &
Touche LLP, dated the date on which the Registration Statement shall
become effective and the Effective Time, respectively, and addressed to GE
in form and substance customary for letters delivered by independent
public accountants in connection with registration statements similar to
the Registration Statement;
- TAX OPINIONS. GE having received the opinion, dated the Closing Date, of
Shearman & Sterling, counsel to GE, to the effect that the Merger will be
treated for federal income tax purposes as a reorganization qualifying
under the provisions of Section 368(a) of the Code and that each of GE,
Merger Sub and Greenwich will be a party to the reorganization within the
meaning of Section 368(b) of the Code; and
- AGREEMENTS WITH AFFILIATES. GE having received a signed agreement from any
person who may be deemed to have become an affiliate of Greenwich, as
reasonably determined by Greenwich, pursuant to Rule 145 under the
Securities Act, after the date of the Merger Agreement and at or prior to
the Effective Time, stating that such affiliate will comply with Rules 144
and 145 under the Securities Act.
ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF GREENWICH. The obligations of
Greenwich to consummate the Merger are subject to the satisfaction or, if
permitted by applicable law, waiver of the following additional conditions:
- COMPLIANCE WITH OBLIGATIONS. GE and Merger Sub having performed in all
material respects all of their respective obligations required to be
performed by them at or prior to the Effective Time and Greenwich having
received a certificate signed by an executive officer of GE to such
effect;
- REPRESENTATIONS AND WARRANTIES TRUE. Each of the representations and
warranties of GE set forth in the Merger Agreement having been true and
correct when made and on and as of the Closing Date of the Merger as if
made on and as of such date (this condition is satisfied unless the
failure to be true and correct would have a material adverse effect on
GE), and Greenwich having received a certificate signed by an executive
officer of GE to such effect; and
- TAX OPINIONS. Greenwich having received the opinion, dated the Closing
Date, of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, counsel to
Greenwich, to the effect that the Merger will be treated for U.S. federal
income tax purposes as a reorganization qualifying under the provisions of
Section 368(a) of the Code and that each of GE, Merger Sub and Greenwich
will be a party to the reorganization within the meaning of Section 368(b)
of the Code.
TERMINATION; EFFECTS OF TERMINATION
The Merger Agreement may be terminated at any time prior to the Effective
Time, whether before or after approval of the matters presented in connection
with the Merger by the stockholders of Greenwich:
- by mutual written consent of GE and Greenwich, if authorized by their
respective Boards of Directors;
- by either GE or Greenwich, if the waiting period under the HSR Act does
not expire or is not terminated prior to September 30, 1997;
- by either GE or Greenwich, if any U.S. governmental entity has issued an
order (other than a temporary restraining order), decree or ruling
restraining, enjoining or otherwise prohibiting the Merger, except that
the Merger Agreement may not be terminated prior to September 30, 1997 if
the party subject to such order is using its reasonable best efforts to
have such order removed, unless the order is final and nonappealable;
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- by either GE or Greenwich, if the Effective Time has not occurred on or
before September 30, 1997, except that the right to terminate will not be
available to any party whose willful, deliberate or knowing failure to
fulfill any obligation under the Merger Agreement has been the cause of
the nonoccurrence of the Effective Date;
- by either GE or Greenwich, if the holders of Greenwich Class A Common
Stock do not adopt the Merger Agreement at the Special Meeting, except
that, if Greenwich delivers a Superior Proposal Notice to GE, Greenwich
may not terminate the Merger Agreement unless it has complied with the
provisions described above which refer to delivery of a Superior Proposal
Notice to GE;
- by Greenwich, upon any breach of any representation, warranty or agreement
set forth in the Merger Agreement such that the conditions to the
obligations of Greenwich (described above under "-- Conditions to the
Consummation of the Merger -- ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF
GREENWICH") would not be satisfied (a "Terminating GE Breach"), except
that, if such breach is curable by GE, and GE uses its best efforts to
cure such breach, Greenwich must wait 30 days after delivering written
notice to GE to terminate the Merger Agreement;
- by GE, upon any breach of any material representation, warranty or
agreement set forth in the Merger Agreement such that the conditions to
the obligations of GE (described above under "-- Conditions to the
Consummation of the Merger -- ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF
GE AND MERGER SUB") would not be satisfied, except that, if such breach is
curable by Greenwich, and Greenwich uses its best efforts to cure such
breach, GE must wait 30 days after delivering written notice to Greenwich
to terminate the Merger Agreement;
- by GE, at any time after Greenwich has delivered a Superior Proposal
Notice to GE; or
- by Greenwich, if Greenwich delivers a Superior Proposal Notice to GE, in
which case (i) if the HSR Act waiting period has expired and there is no
order preventing the Merger or preventing GE from exercising the option to
purchase the shares of Greenwich Common Stock owned by the Conese
Stockholders, at any time after 15 business days following the date of
such notice and (ii) if the HSR Act waiting period has not expired or
there is an order in effect preventing the Merger or preventing GE from
exercising such stock option, at any time after the later of June 30, 1997
and 45 days following the date of such notice, except that, in each of
clauses (i) and (ii) above, the Superior Proposal has not been withdrawn
or changed in any way such that it would no longer be a Superior Proposal
under the Merger Agreement. The 15 business day and 45 day periods
described above may be extended by the amount of time in which a Conese
Stockholder is in breach of his or her obligation to deliver shares
pursuant to the Stock Option and Voting Agreement. If a Superior Notice
Proposal is delivered when the HSR Act waiting period has not expired or
there is an order in effect preventing the Merger or preventing GE from
exercising the option to purchase the shares of Greenwich Common Stock
owned by the Conese Stockholders, but subsequently the waiting period does
expire and at such time there is no order in effect preventing GE from
exercising the option to purchase the shares of Greenwich Common Stock
owned by the Conese Stockholders, Greenwich may terminate the Merger
Agreement 15 business days after the expiration or termination of the
waiting period.
EFFECT OF TERMINATION. Upon termination, the Merger Agreement becomes void
and there will be no liability on the part of GE (except as provided below),
Merger Sub or Greenwich and all rights and obligations under the Merger
Agreement will cease, except that any liability for the willful breach by any
party will still exist after termination.
TERMINATION FEES PAYABLE BY GE. Pursuant to the Merger Agreement, if the
Merger Agreement is terminated (i) because the HSR Act waiting period has not
expired or has not been terminated by September 30, 1997 and such failure was
not caused by any breach by Greenwich of any of its obligations under the Merger
Agreement or (ii) because a U.S. court or governmental authority has issued an
order
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(other than a temporary restraining order), decree or ruling restraining,
enjoining or otherwise prohibiting the Merger pursuant to Section 7 of the
Clayton Act of 1914 or the Federal Trade Commission Act of 1914, as amended,
then GE must pay to Greenwich a $33.5 million fee (the "GE Break-up Fee").
If, within 12 months of the termination of the Merger Agreement pursuant to
the preceding paragraph, Greenwich enters into a transaction that results in a
change of control and involves an aggregate consideration in excess of the
aggregate Merger Consideration, then Greenwich must reimburse GE for the GE
Break-up Fee.
EXPENSES
Each party is responsible for the expenses that it incurs except that GE
must pay any New York State Real Estate Transfer Tax and New York City Real
Property Transfer Tax and any similar taxes which become payable in connection
with the Merger.
GE and Greenwich will share equally all expenses related to printing, filing
and mailing the Proxy Statement/Prospectus and all Commission and other
regulatory filing fees incurred in connection with the Proxy
Statement/Prospectus.
AMENDMENT; WAIVER
The Merger Agreement may be amended by the parties thereto at any time prior
to the Effective Time, except that after the adoption of the Merger Agreement by
Greenwich stockholders, no amendment may be made which would reduce the amount
or change the type of consideration to be received by Greenwich stockholders.
The Merger Agreement may not be amended, except by an instrument in writing
signed by the parties to the Merger Agreement.
Pursuant to the Merger Agreement, at any time prior to the Effective Time,
the parties to the Merger Agreement may (i) extend the time for the performance
of any obligation or other act of any other party to the Merger Agreement; (ii)
waive any inaccuracy in the representations and warranties contained in the
Merger Agreement or in any document delivered pursuant to the Merger Agreement;
and (iii) waive compliance with any agreement or condition contained in the
Merger Agreement. Any such extension or waiver will be valid only if set forth
in a written instrument signed by the party or parties to be bound by the
waiver.
THE STOCK OPTION AND VOTING AGREEMENT
As a condition to the willingness of GE to enter into the Merger Agreement,
the Conese Stockholders entered into a Stock Option and Voting Agreement with GE
dated March 9, 1997. The following summary of the Stock Option and Voting
Agreement is qualified in its entirety by reference to the Stock Option and
Voting Agreement, a copy of which is attached as Annex III hereto and is
incorporated herein by reference.
AGREEMENT TO VOTE IN FAVOR OF THE MERGER
Pursuant to the Stock Option and Voting Agreement, each Conese Stockholder
has agreed that, at any meeting of the Greenwich stockholders, however called,
and in any action by consent of the Greenwich stockholders, such Conese
Stockholder will vote (or cause to be voted) such Conese Stockholder's shares of
Greenwich Class A Common Stock: (a) in favor of the adoption of the Merger
Agreement, the Merger and all the transactions contemplated by the Merger
Agreement and the Stock Option and Voting Agreement and otherwise in such manner
as may be necessary to consummate the Merger; (b) except as otherwise agreed to
in writing in advance by GE, against any action, proposal, agreement or
transaction that would result in a breach of any covenant, obligation,
agreement, representation or warranty of Greenwich contained in the Merger
Agreement (whether or not theretofore terminated) or of the Conese
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Stockholder contained in the Stock Option and Voting Agreement; and (c) against
any action, proposal, agreement or transaction (other than the Merger Agreement
or the transactions contemplated thereby) that could result in any of the
conditions to Greenwich's obligations under the Merger Agreement (whether or not
theretofore terminated) not being fulfilled or that is intended, or could
reasonably be expected, to impede, interfere or be inconsistent with, delay,
postpone, discourage or adversely affect the Merger Agreement (whether or not
theretofore terminated), the Merger or the Stock Option and Voting Agreement,
including, but not limited to, any Competing Transaction, as such term in
defined in the Merger Agreement (see "THE MERGER AGREEMENT -- No Solicitation of
Competing Transactions"); PROVIDED, HOWEVER, that the Conese Stockholders are
not obligated to vote in favor of the Merger if Greenwich's Board of Directors
has previously withdrawn and not reinstated its recommendation in favor of the
Merger, as permitted in the section of the Merger Agreement that addresses
Superior Proposals (see "THE MERGER AGREEMENT -- No Solicitation of Competing
Transactions"). Notwithstanding anything to the contrary contained in the
preceding sentence, if GE has delivered an Exercise Notice (see "-- Option to
Purchase the Shares of Greenwich Common Stock Owned by the Conese Stockholders")
with respect to all of the shares of Greenwich Class A Common Stock then owned
by the Conese Stockholders and prior to such date Greenwich has established a
record date for Greenwich stockholder action on a matter covered by clause (a)
above, the Conese Stockholders will be obligated to vote in favor of the Merger.
The Conese Stockholders may not enter into any agreement or understanding with
any person or entity to vote or give instructions in any manner inconsistent
with the Stock Option and Voting Agreement.
If, as determined by GE, any Conese Stockholder does not comply with the
voting requirement described above, such failure will result in the irrevocable
appointment of GE as such Conese Stockholder's attorney and proxy pursuant to
Section 212(c) of the DGCL, with full power of substitution, to vote and
otherwise act (by written consent or otherwise) with respect to such Conese
Stockholder's shares of Greenwich Class A Common Stock at any meeting of
Greenwich stockholders or consent in lieu of any such meeting or otherwise on
matters referred to above. Under the Stock Option and Voting Agreement, each
Conese Stockholder has revoked all other proxies and powers of attorney, other
than the irrevocable proxy and voting trust granted by Anna May Conese in favor
of Eugene P. Conese, Sr., and no subsequent proxies or powers of attorney will
be granted.
OPTION TO PURCHASE THE SHARES OF GREENWICH COMMON STOCK OWNED BY THE CONESE
STOCKHOLDERS
Pursuant to the Stock Option and Voting Agreement, each Conese Stockholder
has granted GE an irrevocable option (each, a "Conese Option" and, collectively,
the "Conese Options") to purchase all, but not less than all, of such Conese
Stockholder's shares of Greenwich Common Stock at a price per share equal to a
number of shares of GE Common Stock, par value $.16 per share, having a Fair
Market Value equal to $31.00 (the "Option Purchase Price"). "Fair Market Value"
means the average of the closing prices of a share of GE Common Stock on the
NYSE for each of the 10 trading days ending on the trading day next preceding
the Conese Option Closing Date (as defined below). Each Conese Stockholder may
elect to receive the aggregate Option Purchase Price for all of such Conese
Stockholder's shares of Greenwich Common Stock in the same manner as is provided
for other stockholders in the Cash Election section of the Merger Agreement. See
"THE MERGER -- Merger Consideration."
The Conese Options may be exercised by GE, in whole but not in part, as to
all but not less than all Conese Stockholders, during the period commencing on
the date that the waiting period applicable to the consummation of the purchase
of the shares of Greenwich Common Stock pursuant to the Conese Options has
expired or been terminated and ending on the date which is the earlier of (i)
the giving of notice of termination by the Conese Stockholders or GE after
September 30, 1997 and (ii) the date of termination of the Merger Agreement by
Greenwich in connection with a Terminating GE Breach (as described above in "THE
MERGER AGREEMENT -- Termination; Effects of Termination").
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In order to exercise the Conese Options, GE must send a written notice (the
"Exercise Notice") to each Conese Stockholder of its intention to exercise the
Conese Options specifying the place and, if then known, the time and the date
(the "Conese Option Closing Date") of the closing (the "Conese Option Closing")
of the purchase. The Conese Option Closing Date will occur on the third business
day (or such later date as may be required by applicable law or regulation)
after the later of (i) the date on which such Exercise Notice is delivered and
(ii) the satisfaction of the conditions to the Stock Option and Voting
Agreement.
At the Conese Option Closing, each Conese Stockholder will deliver to GE all
of such Conese Stockholder's shares of Greenwich Common Stock, and GE will pay
the Option Purchase Price by delivery to each Conese Stockholder of certificates
representing the applicable number of shares of GE Common Stock determined in
accordance with the Stock Option and Voting Agreement. Each Conese Stockholder
may elect to receive the aggregate Purchase Price for all such Conese
Stockholder's shares in the same manner as is provided for other stockholders in
the cash election provision of the Merger Agreement.
The Conese Option Closing will be subject to the satisfaction of each of the
following conditions: (i) no court, arbitrator or governmental body, agency or
official having issued any order, decree or ruling and there not being any
statute, rule or regulation restraining, enjoining or prohibiting the
consummation of the purchase and sale of the shares of Greenwich Common Stock
pursuant to the exercise of the Conese Options; and (ii) any waiting period
applicable to the consummation of the purchase and sale of the shares of
Greenwich Common Stock pursuant to the exercise of the Conese Options under the
HSR Act having expired or been terminated.
CERTAIN REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES OF THE CONESE STOCKHOLDERS. The Stock Option
and Voting Agreement contains certain representations and warranties of the
Conese Stockholders with respect to: authority to enter into and perform their
obligations under the Stock Option and Voting Agreement; the enforceability and
legality of the Stock Option and Voting Agreement; the lack of conflicts with
laws and rights of third parties with respect to the shares of Greenwich Common
Stock; the required consent, approval, authorization or permission of, or filing
with or notification to, governmental authorities; title to the shares; the
purpose of acquiring the GE Common Stock issuable to them upon exercise of the
Conese Options; and the absence of any brokers' and finders' fees.
REPRESENTATIONS AND WARRANTIES OF GE. The Stock Option and Voting Agreement
also contains certain representations and warranties of GE with respect to: due
organization; corporate authority to enter into the contemplated transactions;
the enforceability and legality of the Stock Option and Voting Agreement; the
lack of conflicts with corporate documents, applicable laws and certain
contracts; required consents; the purpose of acquiring the shares of Greenwich
Common Stock; the validity of the GE Common Stock issuable to them upon exercise
of the Conese Options; and the absence of any brokers' and finders' fees.
CERTAIN COVENANTS
COVENANTS OF THE CONESE STOCKHOLDERS. Each Conese Stockholder has agreed
pursuant to the Stock Option and Voting Agreement that such Conese Stockholder
will not dispose of or encumber the shares of Greenwich Common Stock held by him
or her, will not solicit other proposals or give assistance relating to any
Competing Transaction, and will use his or her best efforts to obtain all
necessary regulatory or other authorizations and to make all required filings.
COVENANTS OF GE. GE has agreed that if (i) Greenwich terminates the Merger
Agreement after delivering a Superior Proposal Notice to GE (see "THE MERGER
AGREEMENT -- Termination; Effects of Termination"), (ii) GE exercises the Conese
Option, and (iii) Greenwich, notwithstanding the termination of the Merger
Agreement, has not taken any action reasonably expected to materially and
adversely affect the value of Greenwich when owned by GE, then GE will, unless
such action conflicts with
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any order of any governmental authority, within 120 days following the
consummation of GE's purchase of shares of Common Stock under the Conese Option,
either (a) propose to the Greenwich Board a merger in which all Greenwich
stockholders (other than GE) receive not less than $31.00 per share of Greenwich
Common Stock in the form of GE Common Stock or (b) make an offer to Greenwich's
stockholders to acquire all shares of Greenwich Common Stock not owned by GE for
a price of not less than $31.00 per share in the form of shares of GE Common
Stock. In the case of either clause (a) or clause (b) above, GE will offer the
same Cash Election offered pursuant to the Merger Agreement. See "THE MERGER --
Merger Consideration."
GE has further agreed that, to the extent that the Conese Stockholders are
unable to sell the GE Common Stock received in connection with the purchase and
sale of the shares of Greenwich Common Stock upon exercise of the Conese
Options, whether pursuant to Rule 144 or Rule 145 under the Securities Act or
another applicable exemption from the registration requirements of the
Securities Act, GE, upon the written request of the Conese Stockholders, will
use its reasonable best efforts to cause the shares of GE Common Stock to be
registered under the Securities Act in order to permit the proposed sale of such
shares of GE Common Stock. However, (i) GE will not be obligated to register any
shares of GE Common Stock if such shares of GE Common Stock are not reasonably
anticipated to have an aggregate price to the public in excess of $15 million
and (ii) the Conese Stockholders will not be entitled to submit more than three
notices to GE in the three-year period following the Conese Option Closing. In
connection with any such registration, GE and the Conese Stockholders will enter
into an agreement on terms and conditions customarily contained in such
registration rights agreements.
TERMINATION
The Stock Option and Voting Agreement will terminate and no party will have
any rights or obligations upon the earliest of (i) the Effective Time of the
Merger, (ii) the termination of the Merger Agreement because the Effective Time
has not occurred by September 30, 1997, (iii) the termination of the Merger
Agreement by Greenwich because of a Terminating GE Breach, (iv) the termination
of the Merger Agreement because the HSR Act waiting period has not expired or
been terminated by September 30, 1997; and (v) the termination of the Merger
Agreement due to a final, nonappealable order prohibiting the Merger.
REGULATORY MATTERS
Under the HSR Act and the rules promulgated thereunder by the Federal Trade
Commission (the "FTC"), the Merger may not be consummated until notifications
have been given and certain information has been furnished to the FTC and the
Antitrust Division of the U.S. Department of Justice (the "Antitrust Division")
and specified waiting periods have been terminated or have expired. Greenwich
and GE each filed notification and report forms under the HSR Act with the FTC
and the Antitrust Division on March 28, 1997. On April 25, 1997, GE and
Greenwich received requests for additional information from the Antitrust
Division regarding the notification and report forms filed under the HSR Act. By
July 1, 1997, GE, Greenwich and UNC had each certified that they were in
substantial compliance with these requests for additional information.
Accordingly, unless the Antitrust Division disagrees as to whether substantial
compliance has been achieved, the waiting period will expire on July 21, 1997.
At any time before or after consummation of the Merger, the Antitrust Division
or the FTC could take such action under the antitrust laws as it deems necessary
or desirable in the public interest, including seeking to enjoin the
consummation of the Merger or seeking divestiture of substantial assets of
Greenwich or GE. The Antitrust Division has the authority to challenge the
Merger on antitrust grounds before or after the Merger is completed.
GE and Greenwich are not aware of any material governmental or regulatory
approvals required to be obtained in order to consummate the Merger, other than
compliance with the HSR Act and applicable federal and state securities and
corporate laws.
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COMPARISON OF RIGHTS OF GREENWICH STOCKHOLDERS
AND GE STOCKHOLDERS
Upon consummation of the Merger, stockholders of Greenwich will become
stockholders of GE (to the extent that stockholders of Greenwich elect to
receive Stock Consideration or do not elect to receive the Cash Consideration),
and the rights of all stockholders of GE will be governed by applicable laws of
the State of New York (rather than the DGCL), including the NYBCL, and by GE's
Certificate of Incorporation, as amended (the "GE Charter"), and the GE Bylaws.
While there are substantial similarities between the NYBCL and the DGCL as
well as between the charters and bylaws of GE and Greenwich, a number of
differences do exist. The following is a summary of certain material differences
between the current rights of GE stockholders and Greenwich stockholders under
the NYBCL and the DGCL, respectively, and under the respective charters and
bylaws of GE and Greenwich.
The following summary does not purport to be a complete description of the
rights of stockholders of GE and Greenwich under, and is qualified in its
entirety by reference to, the DGCL, the NYBCL, the GE Charter, the GE Bylaws,
the Greenwich Charter and the Greenwich Bylaws.
AUTHORIZED CAPITAL STOCK
The authorized capital stock of GE currently consists of 4,450,000,000
shares of capital stock, consisting of (i) 4,400,000,000 shares of GE Common
Stock, and (ii) 50,000,000 shares of preferred stock, par value $1.00 per share.
The authorized capital stock of Greenwich currently consists of 52,500,000
shares of capital stock, consisting of (i) 25,000,000 shares of Greenwich Class
A Stock, (ii) 25,000,000 shares of Greenwich Class B Stock and (iii) 2,500,000
shares of Greenwich Preferred Stock, par value $.10 per share.
STOCKHOLDER VOTING RIGHTS
Except as otherwise described below, all issued and outstanding shares of
Greenwich Common Stock are identical and entitle the holders thereof to the same
rights and privileges. With respect to all matters upon which stockholders are
entitled to vote, holders of outstanding shares of Greenwich Class A Stock vote
together with the holders of any other outstanding shares of capital stock of
Greenwich entitled to vote, without regard to class, and every holder of
outstanding shares of Greenwich Class A Stock is entitled to cast one vote in
person or by proxy for each share of Greenwich Class A Stock outstanding in such
stockholder's name. Except as otherwise required by the DGCL, the holders of
outstanding shares of Greenwich Class B Stock are not entitled to vote upon any
questions presented to stockholders of Greenwich.
GE Common Stock is not divided into classes and entitles holders thereof to
one vote for each share on each matter upon which stockholders have the right to
vote.
The NYBCL requires the affirmative vote of two-thirds of a corporation's
outstanding shares entitled to vote in order to authorize a merger,
consolidation, dissolution or disposition of substantially all of the
corporation's assets.
The DGCL, however, requires the affirmative vote of a MAJORITY of the
outstanding shares entitled to vote to authorize any such action, except that,
unless required by the certificate of incorporation, no authorizing stockholder
vote is required of a corporation surviving a merger if (i) such corporation's
certificate of incorporation is not amended by the merger, (ii) each share of
stock of such corporation will be an identical share of the surviving
corporation after the merger and (iii) either no shares of common stock are to
be issued or delivered in the merger or the number of shares of the surviving
corporation to be issued or delivered under the merger, plus those initially
issuable upon conversion of any other shares,
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securities or obligations to be issued or delivered under such plan, does not
exceed 20% of such corporation's outstanding common stock immediately prior to
the effective date of the merger.
The NYBCL requires that any amendment to the certificate of incorporation
specifying a vote requirement for the transaction of specified items of
business, which vote requirement is higher than that otherwise required by law,
must be authorized by a two-thirds vote of all outstanding shares entitled to
vote thereon and present at a meeting. Under the DGCL, however, such amendments
may be authorized by a vote of a MAJORITY of the outstanding shares entitled to
vote thereon.
The GE Charter may be amended by a majority vote by the GE Board of
Directors and the affirmative vote of at least a majority of outstanding shares
of GE Common Stock. The GE Charter confers the power to amend or repeal the GE
Bylaws upon the GE Board of Directors, except that the GE Board of Directors
does not have the authority to amend or repeal any bylaw which is adopted by the
GE stockholders after April 20, 1948, unless such authority is granted to the GE
Board of Directors by the specific provisions of a bylaw adopted by the GE
stockholders. The GE Bylaws also may be altered, amended or repealed, at any
time, in the manner provided in the GE Charter.
The Greenwich Charter and Bylaws may be amended by a majority vote by the
Greenwich Board and the affirmative vote of at least a majority of outstanding
shares of Greenwich Class A Stock. The holders of Greenwich Class B Stock are
entitled to vote as a separate class on a proposed amendment that would increase
or decrease the par value of the Greenwich Class B Stock, or increase or
decrease the aggregate number of authorized shares of Greenwich Class B Stock.
The Greenwich Bylaws may be altered, amended or repealed or new bylaws may be
adopted by the affirmative vote of a majority of the outstanding shares entitled
to vote thereon at any annual or special meeting of the stockholders, if notice
of such alteration, amendment, repeal or adoption is contained in the notice of
such meeting or waiver of notice. The Greenwich Charter confers the power to
amend the Greenwich Bylaws upon the Greenwich Board. The Greenwich Board may
alter, amend or repeal the Greenwich Bylaws or adopt new bylaws at any regular
or special meeting of the Greenwich Board; PROVIDED that the section of the
Greenwich Bylaws concerning related party transactions may only be amended or
repealed by a vote or the written consent of the holders of a majority of the
outstanding shares entitled to vote thereon which is held by Disinterested
Stockholders (as defined in the Greenwich Bylaws). Bylaws adopted by the
Greenwich Board may be amended or repealed by the stockholders of Greenwich.
SPECIAL MEETINGS OF STOCKHOLDERS; CONSENT TO ACTIONS OF STOCKHOLDERS IN LIEU OF
MEETING
SPECIAL MEETINGS. Under both the NYBCL and the DGCL, a special meeting of
stockholders may be called by the Board of Directors or by any person authorized
to do so in the certificate of incorporation or bylaws.
The GE Bylaws provide that special meetings of shareholders may be called by
the GE Board of Directors, or by the written request of stockholders holding 40%
of the then issued stock of GE.
The Greenwich Charter provides that special meetings of the stockholders of
Greenwich may only be called by the Greenwich Board or by duly elected officers
of Greenwich. The Greenwich Bylaws provide that special meetings of the
stockholders of Greenwich may be called at any time by the Greenwich Board or
the Chairman of the Board, and may not be called by Greenwich stockholders.
CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Under the DGCL, any action
required or permitted to be taken by stockholders at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent, in writing, setting forth the action so taken, is
signed by the holders of outstanding stock of not less than the minimum number
of votes necessary to authorize such action at a meeting at which all shares
entitled to vote thereon were present and voting.
45
<PAGE>
The NYBCL requires the unanimous consent in writing of the holders of all
outstanding shares entitled to vote thereon for any action requiring a vote of
shareholders, if such action is taken without a meeting.
Neither the GE Charter nor the GE Bylaws contain any provision with respect
to actions by shareholders by written consent.
The Greenwich Bylaws provide that whenever stockholders are required or
permitted to take any action by vote, such action may be taken without a meeting
in a written consent, setting forth the action so taken signed by the holders of
a majority of the outstanding shares of Greenwich entitled to vote thereon.
BUSINESS COMBINATIONS
The NYBCL generally prohibits a resident domestic corporation (as that term
is defined in the NYBCL) from engaging in a business combination with an
"interested shareholder" (the beneficial owner of 20% or more of the
corporation's stock) for a period of five years from the time the shareholder
acquired the stock in such resident domestic corporation, unless certain
conditions are met.
The resident domestic corporation may engage in a business combination with
the interested shareholder within the five-year period if the interested
shareholder's stock purchase was approved by the corporation's board of
directors prior to the purchase. The business combination is also permitted if
any of the following criteria are met: (1) the business combination was approved
by the board of directors prior to the interested shareholder's stock
acquisition date; (2) the combination was approved by the majority of
disinterested shareholders at a meeting called no earlier than five years after
the interested shareholder's stock acquisition date; or (3) the price paid to
all the shareholders meets statutory criteria establishing a formula price. The
formula price is the higher of the price paid by the interested shareholder or
the market value of the stock, computed as the higher of the value when acquired
or when the announcement of the business combination was made.
The DGCL states that a corporation shall not engage in any business
combination with any interested stockholder for a period of three years
following the date such stockholder became an interested stockholder. Under the
DGCL, an "interested stockholder" means any person who is the owner of 15% or
more of the outstanding voting stock of the corporation. Business combinations
are permitted within the three-year period if, prior to the date such
stockholder became an interested stockholder, the board of directors approved
either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder. The DGCL also allows business
combinations if (i) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the outstanding voting stock of the corporation at the time the
transaction commenced (excluding shares owned by directors, officers and
employee stock plans) or (ii) on or subsequent to the date on which such person
became an interested stockholder, the business combination is approved by the
board of directors and authorized at a stockholders' meeting by two-thirds of
the disinterested stockholders.
The Greenwich Charter provides that Greenwich expressly elects to be subject
to the foregoing provisions of the DGCL relating to business combinations. The
Greenwich Bylaws also provide that Greenwich may not engage in any transaction
with any of its directors, officers or stockholders owning, directly or
indirectly, 5% of the shares of Common Stock of Greenwich, unless such
transaction has been approved by a majority of the entire Greenwich Board of
Directors, as well as (i) by a majority of Greenwich independent outside
directors or (ii) by the affirmative vote of the holders of a majority of the
shares of outstanding capital stock entitled to vote thereon which are
Disinterested Stockholders (as that term is defined in the Greenwich Charter).
46
<PAGE>
BUSINESS CONDUCTED AT STOCKHOLDERS' MEETINGS
Under both the NYBCL and the DGCL, the business permitted to be conducted at
any special meeting of stockholders is limited to the matters stated in the
notice of meeting of stockholders.
DIVIDENDS
Under both the NYBCL and the DGCL, a corporation may pay dividends out of
surplus.
DISSENTERS' APPRAISAL RIGHTS
The NYBCL provides that, upon strict compliance with the applicable
statutory requirements and procedures, a dissenting shareholder has the right to
receive payment of the fair value of such shareholder's shares if such
shareholder objects to: (i) mergers; (ii) consolidations; (iii) dispositions of
assets requiring shareholder approval; (iv) certain share exchanges; or (v)
certain amendments to the certificate of incorporation which adversely affect
the rights of such shareholder.
Under the DGCL, stockholders who follow prescribed statutory procedures are
entitled, in the event of certain mergers or consolidations, to surrender their
shares to the corporation in exchange for the judicially determined "fair value"
of such shares. Such stockholders are entitled to such appraisal rights unless
the shares of stock (or depositary receipts in respect thereof) held by the
stockholder are either (i) listed on a national securities exchange or
designated as a national market system security of an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held of
record by more than 2,000 holders. No appraisal rights are available for any
shares of stock of the constituent corporation surviving a merger if the merger
did not require for its approval the vote of the stockholders of the surviving
corporation as provided in the DGCL. Regardless of the foregoing, appraisal
rights are available for the shares of any class or series of stock of a
constituent corporation if the holders thereof are required by the terms of an
agreement of merger or consolidation to accept for such stock anything except
(i) shares of stock of the corporation surviving or resulting from such merger
or consolidation, or depositary receipts in respect thereof; (ii) shares of
stock of any other corporation or depositary receipts in respect thereof, which
shares of stock or depositary receipts at the effective date of the merger or
consolidation will be either listed on a national securities exchange or
designated as a market system security on an interdealer quotation system by the
National Association of Securities Dealers, Inc. or held of record by more than
2,000 holders; (iii) cash in lieu of fractional shares or fractional depositary
receipts described in the foregoing clauses (i) and (ii); or (iv) any
combination of the shares of stock, depositary receipts and cash in lieu of
fractional shares, or fractional depositary receipts described in the foregoing
clauses (i), (ii) and (iii).
WARRANTS OR OPTIONS
The NYBCL requires the approval of the holders of a majority of the
outstanding shares entitled to vote for the issuance of any rights or options to
directors, officers or other employees or for a plan to issue such rights or
options.
The DGCL provides that rights or options to purchase shares of any class of
stock may be authorized by a corporation's board of directors.
NUMBER AND TERM OF DIRECTORS
Under the NYBCL, the number of directors may be fixed by the bylaws, or by
action of the stockholders or of the board of directors under the specific
provisions of a bylaw adopted by the shareholders. The number of directors may
be increased or decreased by amendment of the bylaws, or by action of the
shareholders or of the board of directors under the specific provisions of a
bylaw adopted by the shareholders; PROVIDED that, if the board of directors is
authorized by the bylaws to change the number
47
<PAGE>
of directors, whether by amending the bylaws or by taking action under the
specific provisions of a bylaw adopted by the shareholders, such amendment or
action shall require the vote of a majority of the entire board of directors.
The DGCL permits the board of directors to change the authorized number, or
the range, of directors by amendment to the bylaws, unless the directors are not
authorized in the certificate of incorporation to amend the bylaws or the number
of directors is fixed in the certificate of incorporation, in which case a
change in the number of directors may be made only upon approval of such change
by the stockholders.
The GE Charter provides that the GE Board of Directors may not consist of
less than 10 directors, the exact number to be determined pursuant to the
procedures set forth in the GE Bylaws. The GE Bylaws provide that the exact
number of directors will be determined by a vote of the majority of the entire
GE Board of Directors, except that the number of directors for any year will be
fixed by the shareholders of GE at any annual statutory meeting of the
shareholders by a majority vote of the outstanding shares entitled to vote
thereon. Directors of GE hold office until the next statutory meeting of the
shareholders and until their successors are duly elected and have qualified. The
number of directors of GE is currently fixed at 15.
The Greenwich Charter and Greenwich Bylaws provide for a variable number of
directors between three and nine, with the exact number determined from time to
time by the Greenwich Board. The number of directors is currently fixed at six.
Each director of Greenwich holds office until the next meeting of the
stockholders of Greenwich in which the election of directors is in the regular
order of business and until his or her successor has been elected and qualified,
or until such director's death, or until he or she has resigned, or has been
removed in accordance with the provisions of the Greenwich Bylaws.
NOMINATION AND ELECTION OF DIRECTORS
Under the NYBCL, except as otherwise provided in the certificate of
incorporation, directors are elected by a plurality of the votes cast at a
meeting of shareholders by the holders of shares entitled to vote in the
election.
Under the DGCL, except as otherwise provided in the certificate of
incorporation or bylaws, directors are elected by a plurality of the votes of
the shares present in person or represented by proxy at a meeting of
stockholders and entitled to vote on the election of directors.
The GE Bylaws provide that directors of GE shall be elected each year at the
annual statutory meeting of the shareholders of GE, and that any vacancy
occurring in the GE Board of Directors may be filled for the unexpired term by
the GE Board of Directors. Neither the GE Charter nor the GE Bylaws allows
cumulative voting for the election of directors.
The Greenwich Bylaws provide that, except as otherwise required by statute,
the directors of Greenwich shall be elected at the annual meeting of
stockholders of Greenwich. At each meeting of the stockholders of Greenwich for
the election of directors at which a quorum is present, the persons receiving a
plurality of the votes cast at such election shall be elected as directors of
Greenwich. The Greenwich Charter provides that any vacancy in the Greenwich
Board of Directors, whether arising from death, resignation, removal (with or
without cause), an increase in the number of directors or any other cause, may
be filled by the vote of either a majority of the Greenwich Board of Directors
then in office, though less than a quorum, or by the stockholders of Greenwich
at the next annual meeting or special meeting called for that purpose. Neither
the Greenwich Charter nor the Greenwich Bylaws allows cumulative voting for the
election of directors.
CLASSIFICATION OF THE BOARD OF DIRECTORS
The NYBCL provides that a corporation's certificate of incorporation or
bylaws may provide that the directors be divided into either two, three or four
classes; PROVIDED that all classes will be as nearly equal in
48
<PAGE>
number as possible, and no class may include less than three directors. The DGCL
provides that a corporation's Board of Directors may be divided into various
classes with staggered terms of office with no requirement as to minimum number
of directors in each class. Neither the GE Charter nor the Greenwich Charter
contains a classified board provision.
REMOVAL OF DIRECTORS
The NYBCL provides that any or all of the directors of a corporation may be
removed for cause and, if the certificate of incorporation or bylaws of the
corporation provide, without cause by vote of the shareholders.
Under the DGCL, a director of a corporation may be removed, with or without
cause, by the holders of a majority of the shares then entitled to vote at a
meeting for the election of directors. If a corporation has a classified board,
the DGCL provides that directors may be removed only for cause, unless the
certificate of incorporation otherwise provides.
Neither the GE Charter nor the GE Bylaws provides for removal of GE
directors. Consequently, GE
directors may be removed only for cause by vote of the shareholders of GE.
The Greenwich Charter does not provide for a classified board. Consequently,
directors of Greenwich may be removed with or without cause.
INDEMNIFICATION
Both the DGCL and the NYBCL allow for the advance payment of expenses to a
director or officer by the corporation prior to the final disposition of an
action. Both statutes require that, prior to any such advance, a determination
must be made by a quorum of disinterested directors, an independent legal
counsel or by the company's stockholders that such executive has met the
applicable statutory standard of conduct. Furthermore, both statutes allow for
the advance payment of expenses prior to the final disposition of an action upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that such executive is not
entitled to be indemnified by the company.
The NYBCL and the DGCL differ with respect to the advance payment of
attorneys' expenses. The DGCL refers expressly to administrative and
investigative proceedings while the NYBCL does not, and the DGCL expressly
provides for indemnification of expenses "including attorneys' fees," while the
NYBCL refers to indemnification of attorneys' fees only in the context of
indemnification by court action.
The GE Charter provides that a person who is or was a director of GE will
have no personal liability to GE or its shareholders for damages for any breach
of duty in such capacity except that the foregoing shall not eliminate or limit
liability where such liability is imposed under the NYBCL. The GE Bylaws provide
that GE shall, to the fullest extent permitted by applicable law, indemnify any
person who is or was or has agreed to become a director of GE against damages;
PROVIDED that no indemnification shall be provided to any person if a judgment
or other final adjudication adverse to the director establishes that (i) his or
her acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled.
The Greenwich Charter and the Greenwich Bylaws provide that Greenwich will,
to the fullest extent permitted by the DGCL, indemnify any and all persons whom
it shall have the power to indemnify under the DGCL from and against all
expenses, liabilities or other matters referred to and covered by the DGCL. The
Greenwich Charter further provides that the indemnification provisions contained
in the DGCL will not be deemed exclusive of any other rights to which those
indemnified may be entitled.
49
<PAGE>
DESCRIPTION OF GE'S CAPITAL STOCK
Set forth below is a description of the GE Common Stock. The following
statements are summaries of, and are subject to the detailed provisions of, the
GE Charter and Bylaws, and to the relevant provisions of the NYBCL.
GE currently is authorized to issue up to 4,450,000,000 shares of Common
Stock, par value $.16 per share. GE is also authorized to issue up to 50,000,000
shares of preferred stock, par value $1.00 per share, in series, but has not
issued any such shares. If such shares are issued, GE's Board of Directors may
fix the designation, relative rights, preferences and limitations of the shares
of each series.
Dividends may be paid on the GE Common Stock out of funds legally available
therefor, when and if declared by GE's Board of Directors.
Holders of the GE Common Stock are entitled to share ratably therein and in
assets available for distribution on liquidation, dissolution or winding up,
subject, if preferred stock of GE is then outstanding, to any preferential
rights of such preferred stock. Each share of the GE Common Stock entitles the
holder thereof to one vote at all meetings of share owners, and such votes are
noncumulative. The GE Common Stock is not redeemable, has no subscription or
conversion rights and does not entitle the holder thereof to any preemptive
rights.
LEGAL MATTERS
The legality of the GE Common Stock offered hereby will be passed upon for
GE by Robert E. Healing, Corporate Counsel of GE. Shearman & Sterling, counsel
to GE, and Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, counsel to
Greenwich, will deliver opinions concerning the federal income tax consequences
of the Merger.
EXPERTS
The consolidated financial statements of Greenwich incorporated in this
Proxy Statement/Prospectus by reference from Greenwich's Annual Report on Form
10-K for the year ended September 30, 1996 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report which is
incorporated herein by reference, and has been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
The financial statements of GE and its consolidated affiliates as of
December 31, 1996 and 1995, and for each of the years in the three-year period
ended December 31, 1996, appearing in GE's Annual Report on Form 10-K for the
year ended December 31, 1996, incorporated by reference herein, have been
incorporated herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
FUTURE STOCKHOLDER PROPOSALS
Holders of Greenwich Common Stock are entitled to submit proposals on
matters appropriate for stockholder action consistent with regulations of the
Commission. Should a stockholder intend to present a proposal at next year's
Annual Meeting of Stockholders, such proposal must be received by the Secretary
of Greenwich, 4590 NW 36th Street, Miami, Florida 33122, not later than October
1, 1997 in order to be included in Greenwich's proxy statement and form of proxy
relating to that Annual Meeting.
The Board of Directors of Greenwich does not intend to bring any other
matters, and does not know of any other matters to be brought, before the
Special Meeting.
50
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
Greenwich and GE file annual, quarterly and special reports, proxy
statements and other information with the Commission. You may read and copy any
reports, statements or other information filed by GE or Greenwich at the
Commission's public reference rooms in Washington, D.C. at 450 5th Street, Mail
Stop 1-2, NW, Washington, D.C. 20549, in New York at 7 World Trade Center, Suite
1300, New York, New York 10048 and in Chicago, Illinois at Citicorp Center, 500
W. Madison Street, Suite 1400, Chicago, Illinois 60661. Please call the
Commission at 1-800-SEC-0330 for further information on the public reference
rooms. Commission filings of GE and Greenwich are also available to the public
from commercial document retrieval services. The website maintained by the
Commission is "http://www.sec.gov."
GE has filed with the Commission a Registration Statement on Form S-4 to
register the GE Common Stock to be issued pursuant to the Merger Agreement. This
Proxy Statement/Prospectus is a part of that Registration Statement and
constitutes a prospectus of GE in addition to being a proxy statement of
Greenwich for the Special Meeting. As allowed by Commission rules, this Proxy
Statement/Prospectus does not contain all the information you can find in the
Registration Statement and the exhibits to the Registration Statement.
The Commission allows us to "incorporate by reference" information into this
Proxy Statement/ Prospectus, which means that we can disclose important
information to you by referring you to another document filed separately with
the Commission. The information incorporated by reference is deemed to be part
of this Proxy Statement/Prospectus, except for any information superseded by
information in this Proxy Statement/Prospectus. This Proxy Statement/Prospectus
incorporates by reference the documents set forth below that GE and Greenwich
have previously filed with the Commission. These documents contain important
information about GE and Greenwich and their finances.
<TABLE>
<CAPTION>
GE COMMISSION FILINGS
(FILE NO. 1-00035) PERIOD
- -------------------------------------------------------- --------------------------------------------------------
<S> <C>
Annual Report on Form 10-K Year ended December 31, 1996
Quarterly Report on Form 10-Q Quarter ended March 31, 1997
Proxy Statement Dated March 12, 1997
Current Report on Form 8-K Dated on April 28, 1997
<CAPTION>
GREENWICH COMMISSION FILINGS
(FILE NO. 0-22706) PERIOD
- -------------------------------------------------------- --------------------------------------------------------
<S> <C>
Annual Report on Form 10-K Year ended September 30, 1996
Amendment to Annual Report on Form 10-K/A-1 Year ended September 30, 1996
Quarterly Reports on Forms 10-Q Quarters ended December 31, 1996 and March 31, 1997
Proxy Statement Dated January 27, 1997
Description of Greenwich Class A Common Stock contained September 10, 1992, as amended
in Greenwich's registration statement on Form S-1
Description of Greenwich Class B Common Stock contained April 26, 1996, as amended
in Greenwich's registration statement on Form S-1
Current Reports on Forms 8-K Dated on September 23, 1996, February 13, 1997, and
March 9, 1997
</TABLE>
51
<PAGE>
GE and Greenwich also hereby incorporate by reference all additional
documents that GE and Greenwich file with the Commission between the date of
this Proxy Statement/Prospectus and the date of the Special Meeting.
If you are a stockholder of GE or Greenwich, GE and Greenwich may have sent
you some of the documents incorporated by reference, but you can obtain any of
them through GE, Greenwich or the Commission. Documents incorporated by
reference are available from GE or Greenwich without charge, excluding all
exhibits unless such exhibits have been specifically incorporated by reference
in this Proxy Statement/Prospectus. Stockholders may obtain documents
incorporated by reference in this Proxy Statement/Prospectus by requesting them
in writing or by telephone from the appropriate party at the following
addresses:
<TABLE>
<S> <C>
GENERAL ELECTRIC COMPANY GREENWICH AIR SERVICES, INC.
ATTENTION: SECRETARY ATTENTION: SECRETARY
3135 EASTON TURNPIKE P.O. BOX 522187
FAIRFIELD, CONNECTICUT 06431-0001 MIAMI, FLORIDA 33152-2187
(203) 373-2211 (305) 526-7000
</TABLE>
If you would like to request documents from GE or Greenwich, please do so by
July 31, 1997 to receive them before the Special Meeting.
The Board of Directors of Greenwich does not intend to bring any other
matters, and does not know of any other matters to be brought, before the
Special Meeting.
THIS PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES, OR THE SOLICITATION OF A PROXY,
IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROXY STATEMENT/ PROSPECTUS NOR ANY DISTRIBUTION OF SECURITIES MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF GREENWICH OR GE SINCE THE DATE HEREOF OR THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
YOU SHOULD RELY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROXY DOCUMENT. NEITHER GE NOR GREENWICH HAS AUTHORIZED ANYONE TO PROVIDE
YOU WITH INFORMATION THAT IS DIFFERENT FROM WHAT IS CONTAINED IN THIS PROXY
STATEMENT/PROSPECTUS. ALL INFORMATION CONTAINED (OR INCORPORATED BY REFERENCE)
IN THIS PROXY STATEMENT/PROSPECTUS WITH RESPECT TO GREENWICH AND ITS
SUBSIDIARIES HAS BEEN PROVIDED BY GREENWICH, AND ALL INFORMATION CONTAINED (OR
INCORPORATED BY REFERENCE) IN THIS PROXY STATEMENT/PROSPECTUS WITH RESPECT TO GE
AND ITS SUBSIDIARIES HAS BEEN PROVIDED BY GE. NEITHER GE NOR GREENWICH WARRANTS
THE ACCURACY OF INFORMATION RELATING TO THE OTHER PARTY. THIS PROXY STATEMENT/
PROSPECTUS IS DATED JULY 8, 1997. YOU SHOULD NOT ASSUME THAT THE INFORMATION
CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER
THAN SUCH DATE, AND NEITHER THE MAILING OF THIS PROXY STATEMENT/PROSPECTUS NOR
THE ISSUANCE OF GE COMMON STOCK IN THE MERGER SHALL CREATE ANY IMPLICATION TO
THE CONTRARY.
BY ORDER OF THE BOARD OF DIRECTORS
By: /s/ MICHAEL A. BUCCI
-----------------------------------------
Michael A. Bucci
SECRETARY
52
<PAGE>
LIST OF DEFINED TERMS
<TABLE>
<CAPTION>
LOCATION OF
DEFINED TERM DEFINED TERM
- ---------------------------------------------------------------------------------------------------- -----------------
<S> <C>
"Antitrust Division"................................................................................ 43
"Average GE Share Price"............................................................................ 26
"Base Amount"....................................................................................... 21
"Benefit Continuation Period"....................................................................... 21
"Broker Nonvote".................................................................................... 15
"Cash Consideration"................................................................................ 26
"Cash Election Number".............................................................................. 29
"Cash Election Shares".............................................................................. 29
"Cash Election"..................................................................................... 28
"Cash Fraction"..................................................................................... 29
"Certificates"...................................................................................... 28
"Closing Date"...................................................................................... 26
"Code".............................................................................................. 21
"Commission"........................................................................................ 8
"Comparable Group".................................................................................. 23
"Competing Transaction"............................................................................. 36
"Conese Option"..................................................................................... 41
"Conese Option Closing"............................................................................. 42
"Conese Option Closing Date"........................................................................ 42
"Conese Options".................................................................................... 41
"Conese Stockholders"............................................................................... 14
"Constructive Discharge"............................................................................ 20
"Consulting Agreement".............................................................................. 19
"Covered Period".................................................................................... 20
"Current Offering".................................................................................. 21
"Date of Termination"............................................................................... 20
"DGCL".............................................................................................. 17
"EBIT".............................................................................................. 23
"EBITDA"............................................................................................ 23
"Effective Time".................................................................................... 26
"Election Deadline"................................................................................. 28
"ESPP".............................................................................................. 21
"Exchange Act"...................................................................................... 31
</TABLE>
53
<PAGE>
<TABLE>
<CAPTION>
LOCATION OF
DEFINED TERM DEFINED TERM
- ---------------------------------------------------------------------------------------------------- -----------------
<S> <C>
"Exchange Agent".................................................................................... 28
"Exercise Notice"................................................................................... 42
"Fair Market Value"................................................................................. 41
"fair value"........................................................................................ 47
"Form of Election".................................................................................. 28
"FTC"............................................................................................... 43
"GAAP".............................................................................................. 8
"GE"................................................................................................ 14
"GE Break-up Fee"................................................................................... 40
"GE Bylaws"......................................................................................... 37
"GE Charter"........................................................................................ 44
"GE Common Stock"................................................................................... 16
"Greenwich"......................................................................................... 14
"Greenwich Board"................................................................................... 14
"Greenwich Bylaws".................................................................................. 36
"Greenwich Charter"................................................................................. 36
"Greenwich Class A Common Stock".................................................................... 14
"Greenwich Class B Common Stock".................................................................... 14
"Greenwich Common Stock"............................................................................ 14
"Greenwich Indemnified Parties"..................................................................... 36
"HSR Act"........................................................................................... 37
"Indemnified Parties"............................................................................... 37
"interested shareholder"............................................................................ 46
"interested stockholder"............................................................................ 46
"J.P. Morgan"....................................................................................... 15
"Merger"............................................................................................ 14
"Merger Agreement".................................................................................. 14
"Merger Consideration".............................................................................. 27
"Merger Sub"........................................................................................ 26
"NASD".............................................................................................. 15
"Nasdaq"............................................................................................ 13
"NYBCL"............................................................................................. 31
"Option Purchase Price"............................................................................. 41
"Option Spread"..................................................................................... 19
"Original UNC Merger Agreement"..................................................................... 16
"Public Stockholders"............................................................................... 26
</TABLE>
54
<PAGE>
<TABLE>
<CAPTION>
LOCATION OF
DEFINED TERM DEFINED TERM
- ---------------------------------------------------------------------------------------------------- -----------------
<S> <C>
"Retention Agreements".............................................................................. 20
"S&P 500"........................................................................................... 23
"Salomon Brothers".................................................................................. 15
"Salomon Brothers Report"........................................................................... 22
"Securities Act".................................................................................... 36
"Special Meeting"................................................................................... 14
"Stock Consideration"............................................................................... 26
"Stock Option and Voting Agreement"................................................................. 14
"Superior Proposal Notice".......................................................................... 36
"Superior Proposal"................................................................................. 36
"Surviving Corporation"............................................................................. 26
"Terminating GE Breach"............................................................................. 39
"UNC"............................................................................................... 15
"UNC Common Stock".................................................................................. 30
"UNC Indemnified Parties"........................................................................... 36
"UNC Merger"........................................................................................ 16
"UNC Merger Agreement".............................................................................. 18
"Valuation Period".................................................................................. 26
</TABLE>
55
<PAGE>
ANNEX I
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
AMONG
GENERAL ELECTRIC COMPANY,
GB MERGER CORP.
AND
GREENWICH AIR SERVICES, INC.
DATED MARCH 9, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ARTICLE I
THE MERGER
<TABLE>
<S> <C> <C>
SECTION 1.01 The Merger.............................................................. 1
SECTION 1.02 Effective Time; Closing................................................. 1
SECTION 1.03 Effect of the Merger.................................................... 2
SECTION 1.04 Certificate of Incorporation; By-laws................................... 2
SECTION 1.05 Directors and Officers.................................................. 2
</TABLE>
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
<TABLE>
<S> <C> <C>
SECTION 2.01 Capital Stock of Merger Sub............................................. 2
SECTION 2.02 Cancellation of Treasury Stock and Parent Owned Stock................... 2
SECTION 2.03 Conversion of Company Common Stock...................................... 2
SECTION 2.04 Exchange of Certificates................................................ 4
SECTION 2.05 Stock Transfer Books.................................................... 6
SECTION 2.06 Company Stock Options................................................... 7
</TABLE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
<TABLE>
<S> <C> <C>
SECTION 3.01 Organization and Qualification; Subsidiaries............................ 7
SECTION 3.02 Certificate of Incorporation and By-laws................................ 8
SECTION 3.03 Capitalization.......................................................... 8
SECTION 3.04 Authority Relative to this Agreement.................................... 9
SECTION 3.05 No Conflict; Required Filings and Consents.............................. 9
SECTION 3.06 Compliance with Laws; Permits........................................... 9
SECTION 3.07 SEC Filings; Financial Statements....................................... 10
SECTION 3.08 Absence of Certain Changes or Events.................................... 11
SECTION 3.09 Absence of Litigation................................................... 11
SECTION 3.10 Employee Benefit; ERISA................................................. 12
SECTION 3.11 Labor Matters........................................................... 13
SECTION 3.12 Title to and Sufficiency of Assets...................................... 14
SECTION 3.13 Intellectual Property................................................... 15
SECTION 3.14 Tax Matters............................................................. 15
SECTION 3.15 Environmental Matters................................................... 16
SECTION 3.16 Material Contracts; Government Contracts................................ 18
SECTION 3.17 Suppliers............................................................... 19
SECTION 3.18 Tax Treatment........................................................... 19
SECTION 3.19 Insurance............................................................... 19
SECTION 3.20 Approval of Company Board and Independent Directors..................... 19
SECTION 3.21 Stockholder Vote Required............................................... 20
SECTION 3.22 Accuracy of Information................................................. 20
SECTION 3.23 Transactions with Affiliates............................................ 20
SECTION 3.24 Opinion of Financial Advisor............................................ 20
SECTION 3.25 Brokers................................................................. 20
</TABLE>
i
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
<TABLE>
<S> <C> <C>
SECTION 4.01 Organization and Qualification; Subsidiaries............................ 21
SECTION 4.02 Certificate of Incorporation and By-laws................................ 21
SECTION 4.03 Parent Common Stock to Be Issued in the Merger.......................... 21
SECTION 4.04 Authority Relative to This Agreement.................................... 21
SECTION 4.05 No Conflict; Required Filings and Consents.............................. 21
SECTION 4.06 SEC Filings; Financial Statements....................................... 22
SECTION 4.07 Absence of Certain Changes or Events.................................... 22
SECTION 4.08 Brokers................................................................. 22
</TABLE>
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
<TABLE>
<S> <C> <C>
SECTION 5.01 Conduct of Business by the Company Pending the Merger.................. 22
</TABLE>
ARTICLE VI
ADDITIONAL AGREEMENTS
<TABLE>
<S> <C> <C>
SECTION 6.01 Registration Statement; Proxy Statement................................ 29
SECTION 6.02 Stockholders' Meeting.................................................. 25
SECTION 6.03 Appropriate Action; Consents; Filings.................................. 26
SECTION 6.04 Access to Information; Confidentiality................................. 27
SECTION 6.05 No Solicitation of Competing Transactions.............................. 27
SECTION 6.06 Indemnification and Insurance.......................................... 28
SECTION 6.07 Notification of Certain Matters........................................ 29
SECTION 6.08 Stock Exchange Listing................................................. 29
SECTION 6.09 Public Announcements................................................... 29
SECTION 6.10 Plan of Reorganization................................................. 29
SECTION 6.11 Affiliates; Tax Treatment.............................................. 30
SECTION 6.12 Company Employee Stock Purchase Plan................................... 30
SECTION 6.13 Consulting Agreement................................................... 30
SECTION 6.14 Supplemental Indenture................................................. 30
SECTION 6.15 UNC Merger Agreement................................................... 30
SECTION 6.16 Clean Air Act Permit................................................... 30
</TABLE>
ARTICLE VII
CONDITIONS TO THE MERGER
<TABLE>
<S> <C> <C>
SECTION 7.01 Conditions to the Obligations of Each Party............................ 31
SECTION 7.02 Conditions to the Obligations of Parent and Merger Sub................. 31
SECTION 7.03 Conditions to the Obligations of the Company........................... 32
</TABLE>
ii
<PAGE>
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
<TABLE>
<S> <C> <C>
SECTION 8.01 Termination............................................................ 32
SECTION 8.02 Effect of Termination.................................................. 34
SECTION 8.03 Fees and Expenses...................................................... 34
SECTION 8.04 Amendment.............................................................. 35
SECTION 8.05 Waiver................................................................. 35
</TABLE>
ARTICLE IX
GENERAL PROVISIONS
<TABLE>
<S> <C> <C>
SECTION 9.01 Non-Survival of Representations, Warranties and Agreements............. 35
SECTION 9.02 Notices................................................................ 35
SECTION 9.03 Certain Definitions.................................................... 36
SECTION 9.04 Accounting Terms....................................................... 37
SECTION 9.05 Severability........................................................... 37
SECTION 9.06 Entire Agreement; Assignment........................................... 38
SECTION 9.07 Parties in Interest.................................................... 38
SECTION 9.08 Specific Performance................................................... 38
SECTION 9.09 Governing Law.......................................................... 38
SECTION 9.10 Headings............................................................... 38
SECTION 9.11 Counterparts........................................................... 38
</TABLE>
iii
<PAGE>
EXHIBITS*
<TABLE>
<S> <C>
Exhibit Form of Retention Agreements
5.01(g)
Exhibit 6.11 Form of Company Affiliate Letter
Exhibit 6.13 Form of Consulting Agreement
Exhibit Form of Parent Tax Opinion Representation Letter
7.02(a)
Exhibit Form of Company Tax Opinion Representation Letter
7.02(b)
Exhibit Form of Continuity of Interest Certificate
7.02(c)
</TABLE>
- ------------------------
* Not filed herewith.
iv
<PAGE>
INDEX OF DEFINED TERMS
<TABLE>
<CAPTION>
LOCATION OF
DEFINED TERM DEFINITION
- ------------------------------------------------------------------------------------------- ---------------------
<S> <C>
Additional Payments Section 2.04(c)
affiliate Section 9.03(a)
Affiliated Person Section 3.23(a)
Agreement Recitals
American Stock Transfer and Trust Section 6.14
Average Parent Share Price Section 2.03(a)
beneficial owner Section 9.03(b)
Blue Sky Laws Section 3.05(b)
business day Section 9.03(c)
Cash Consideration Section 2.03(a)
Cash Election Section 2.03(b)
Cash Election Number Section 2.03(b)
Cash Election Shares Section 2.03(b)
Cash Fraction Section 2.03(b)
Certificate of Merger Section 1.02
Certificates Section 2.04(b)
Change of Control Section 8.03(a)
Closing Agreement Section 3.14(a)(i)
Closing Date Section 1.02
Code Recitals
Combination Section 8.03(a)
Commonly Controlled Entity Section 3.10(a)
Company Recitals
Company Aeroderivative Business Section 9.03(d)
Company Benefit Plans Section 3.10(a)
Company Businesses Section 9.03(e)
Company Class A Stock Section 2.01
Company Class B Stock Section 2.01
Company Commercial Aircraft Business Section 9.03(f)
Company Common Stock Section 2.01
Company Disclosure Schedule Article III
Company Financial Advisor Section 3.24
Company Foreign Benefit Plan Section 3.10(h)
Company Government Business Section 9.03(g)
Company Group Section 9.03(h)
Company Indemnified Parties Section 6.06(e)
Company Intellectual Property Section 3.13
Company Licenses Section 3.13
Company Material Adverse Effect Section 3.01
Company 1996 Balance Sheet Section 3.07(d)
Company Pension Plans Section 3.10(a)
Company Permits Section 3.06(c)
Company Preferred Stock Section 3.03
Company SEC Reports Section 3.07(a)
Company Stock Option Section 2.06(a)
Company Stock Option Plan Section 2.06(a)
Competing Transaction Section 6.05(a)
Confidentiality Agreement Section 6.04(a)
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
LOCATION OF
DEFINED TERM DEFINITION
- ------------------------------------------------------------------------------------------- ---------------------
<S> <C>
control Section 9.03(i)
controlled by Section 9.03(i)
Current Offering Section 6.12
Delaware Law Recitals
Effective Time Section 1.02
Election Deadline Section 2.03(e)
Election Form Record Date Section 2.03(d)
Environmental Law Section 3.15(a)(ii)
Environmental Permit Section 3.15(a)(iii)
ERISA Section 3.10(a)
ESPP Section 3.03
Exchange Act Section 3.05(b)
Exchange Agent Section 2.04(a)
Exchange Fund Section 2.04(a)
Form of Election Section 2.03(d)
Governmental Authority Section 9.03(j)
Government Contracts Section 3.16(c)
Greenberg, Traurig Section 2.03(c)
Hazardous Substances Section 3.15(a)(i)
HSR Act Section 3.05(b)
Indemnified Parties Section 6.06(e)
Knowledge Section 9.03(k)
Laws Section 3.05(a)
Liens Section 3.12(a)
Material Contracts Section 3.16(a)
Merger Recitals
Merger Consideration Section 2.03(a)
Merger Sub Recitals
NASD Section 3.05(b)
NASDAQ/NMS Section 3.03
Net Option Spread Section 2.06(a)
NYSE Section 2.03(a)
Option and Voting Agreement Recitals
Option Spread Section 2.06(a)
Parent Recitals
Parent Break-Up Fee Section 8.03(a)
Parent Common Stock Section 2.03(a)
Parent Material Adverse Effect Section 4.01
Parent SEC Reports Section 4.06(a)
PBGC Section 3.10(g)
person Section 9.03(l)
Proxy Statement Section 6.01(a)
Real Estate Section 9.03(m)
Registration Statement Section 6.01(a)
Representatives Section 6.04(b)
SEC Section 3.07(a)
Securities Act Section 3.05(b)
Stock Consideration Section 2.03(a)
Stockholders' Meeting Section 6.02(a)
subsidiaries Section 9.03(n)
</TABLE>
vi
<PAGE>
<TABLE>
<CAPTION>
LOCATION OF
DEFINED TERM DEFINITION
- ------------------------------------------------------------------------------------------- ---------------------
<S> <C>
subsidiary Section 9.03(n)
Subsidiary Section 3.01
Superior Proposal Section 6.05(b)
Superior Proposal Notice Section 6.05(b)
Surviving Corporation Section 1.01
Tax Return Section 3.14(a)(ii)
Tax Ruling Section 3.14(a)(iii)
Taxes Section 3.14(a)(iv)
Terminating Company Breach Section 8.01(e)
Terminating Parent Breach Section 8.01(d)
UNC Section 6.15
UNC Indemnified Parties Section 6.06(e)
UNC Merger Section 6.15
UNC Merger Agreement Section 6.15
under common control with Section 9.03(i)
Valuation Period Section 2.03(a)
Welfare Plans Section 3.10(a)
</TABLE>
vii
<PAGE>
AGREEMENT AND PLAN OF MERGER dated March 9, 1997 (this "Agreement") among
GENERAL ELECTRIC COMPANY, a New York corporation ("Parent"), GB MERGER CORP., a
Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and
GREENWICH AIR SERVICES, INC., a Delaware corporation (the "Company").
WHEREAS, the parties hereto desire to cause the Company, upon the terms and
subject to the conditions of this Agreement and in accordance with the General
Corporation Law of the State of Delaware ("Delaware Law"), to merge with and
into Merger Sub (the "Merger");
WHEREAS, the Board of Directors of the Company has (i) determined that the
Merger is fair to the holders of shares of Company Common Stock (as such term is
defined in Section 2.01) and is in the best interests of such stockholders and
(ii) approved this Agreement and the transactions contemplated hereby and
recommended unanimously that the holders of shares of Company Class A Stock (as
such term is defined in Section 2.01) approve and adopt this Agreement;
WHEREAS, the Board of Directors of Parent has determined that the Merger is
in the best interests of Parent and its stockholders and, as sole stockholder of
Merger Sub, has approved and adopted this Agreement and the transactions
contemplated hereby;
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization under the provisions of Section 368(a) of the
United States Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, as a condition and inducement to Parent's and Merger Sub's entering
into this Agreement and incurring the obligations set forth herein, concurrently
with the execution and delivery of this Agreement, Parent is entering into a
Stock Option and Voting Agreement with certain stockholders of the Company,
dated the date hereof (the "Option and Voting Agreement"), pursuant to which,
among other things, such stockholders have agreed, subject to the terms and
conditions contained therein, to vote all shares of Class A Common Stock then
owned by such stockholders to approve and adopt this Agreement, and have granted
to Parent an option to acquire their shares of Company Common Stock upon the
terms and subject to the conditions set forth therein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained and intending to be legally bound hereby,
Parent, Merger Sub and the Company hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. THE MERGER. Upon the terms and subject to the conditions set
forth in Article VII, and in accordance with Section 251 of Delaware Law, at the
Effective Time (as defined below), the Company shall be merged with and into
Merger Sub. As a result of the Merger, the separate corporate existence of the
Company shall cease, and Merger Sub shall be the surviving corporation of the
Merger (the "Surviving Corporation").
SECTION 1.02. EFFECTIVE TIME; CLOSING. As promptly as practicable, and in no
event later than five business days after the satisfaction or, if permissible,
waiver of the conditions set forth in Article VII (other than those conditions
that can only be satisfied on the Closing Date (as defined below)), the parties
hereto shall cause the Merger to be consummated by filing a certificate of
merger (the "Certificate of Merger") with the Secretary of State of the State of
Delaware, in such form as is required by, and executed in accordance with,
Section 251 of Delaware Law. The term "Effective Time" means the date and time
of the filing of the Certificate of Merger with the Secretary of State of the
State of Delaware (or such later time as may be agreed by the parties hereto and
specified in the Certificate of Merger). Immediately prior to the filing of the
Certificate of Merger, a closing will be held at the offices of Shearman &
Sterling, 599 Lexington Avenue, New York, New York (or such other place as the
parties may agree) (the date on which such closing takes place being the
"Closing Date").
<PAGE>
SECTION 1.03. EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of Delaware Law.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the property, rights, privileges, powers and franchises of
the Company and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities, obligations, restrictions, disabilities and duties of each
of the Company and Merger Sub shall become the debts, liabilities, obligations,
restrictions, disabilities and duties of the Surviving Corporation.
SECTION 1.04. CERTIFICATE OF INCORPORATION; BY-LAWS.
(a) Subject to the terms of Section 6.06, at the Effective Time, the
Certificate of Incorporation of the Surviving Corporation shall be the
Certificate of Incorporation of Merger Sub as in effect immediately prior to the
Effective Time, except that Article I thereof shall be amended as of the
Effective Time to read as follows: "the name of the Corporation is Greenwich Air
Services, Inc."
(b) Subject to the terms of Section 6.06, at the Effective Time, the By-laws
of Merger Sub, as in effect immediately prior to the Effective Time, shall be
the By-laws of the Surviving Corporation until thereafter amended as provided by
law, the Certificate of Incorporation of the Surviving Corporation and such By-
laws.
SECTION 1.05. DIRECTORS AND OFFICERS. The directors of Merger Sub
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01. CAPITAL STOCK OF MERGER SUB. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of Company Class A Common Stock, par value $.01 per share (the "Company
Class A Stock"), or Company Class B Common Stock, par value $.01 per share (the
"Company Class B Stock" and, together with the Company Class A Stock, the
"Company Common Stock"), or any shares of capital stock of Merger Sub, each
share of common stock, par value $.01 per share, of Merger Sub issued and
outstanding immediately prior to the Effective Time shall be converted into and
become one fully paid and nonassessable share of common stock, par value $.01
per share, of the Surviving Corporation.
SECTION 2.02. CANCELLATION OF TREASURY STOCK AND PARENT OWNED STOCK. As of
the Effective Time, by virtue of the Merger and without any action on the part
of the holder of any shares of Company Common Stock or any shares of capital
stock of Merger Sub, each share of Company Common Stock issued and held
immediately prior to the Effective Time in the Company's treasury or by any of
the Company's direct or indirect wholly owned subsidiaries and each share of
Company Common Stock that is owned by Parent, Merger Sub or any other
wholly-owned subsidiary of Parent shall automatically be cancelled and retired
and shall cease to exist, and no consideration shall be delivered in exchange
therefor.
SECTION 2.03. CONVERSION OF COMPANY COMMON STOCK. (a) As of the Effective
Time, by virtue of the Merger and without any action on the part of the holder
of any shares of Company Common Stock or any shares of capital stock of Merger
Sub, except as otherwise provided in this Section 2.03 and subject to Section
2.04(f), each share of Company Common Stock issued and outstanding immediately
prior to the Effective Time (other than shares to be cancelled in accordance
with Section 2.02) shall be converted into the right to receive the number of
shares of common stock, par value $0.32 per share, of Parent ("Parent Common
Stock") determined by dividing $31.00 by the Average Parent Share Price (as
defined below) and rounding the result to the nearest one thousandth of a share
(the "Stock Consideration") or, in the event
2
<PAGE>
the holder thereof shall have made the election provided for herein, such share
of Company Common Stock shall be converted into the right to receive in cash
from Parent, without interest, an amount equal to $31.00 (the "Cash
Consideration") (or a combination of shares of Parent Common Stock and cash
determined in accordance with Section 2.03(b)) (the "Merger Consideration");
provided, however, that, in any event, if, between the first day of the
Valuation Period (as defined below) and the Effective Time, the outstanding
shares of Parent Common Stock shall have been changed into a different number of
shares or a different class, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of shares,
the Stock Consideration shall be correspondingly adjusted to the extent
appropriate to reflect such stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares. The "Average Parent
Share Price" means the average of the last sales prices per share of Parent
Common Stock on the New York Stock Exchange, Inc. (the "NYSE") Composite Tape
for the 10 consecutive trading days ending on the trading day which is five days
prior to the Closing Date (the "Valuation Period"). As of the Effective Time,
all such shares of Company Common Stock shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist, and each holder
of a certificate representing any such shares of Company Common Stock shall
cease to have any rights with respect thereto, except the right to receive the
Merger Consideration.
(b) CASH ELECTION; CASH ELECTION ADJUSTMENTS. Each holder of record of
Company Common Stock as of the record date for the Stockholders' Meeting (as
defined in Section 6.02) will be entitled, with respect to each share of Company
Common Stock held by such holder, to elect to receive the Cash Consideration (a
"Cash Election"); provided, however, that if the aggregate number of shares of
Company Common Stock covered by Cash Elections ("Cash Election Shares") exceeds
55% of the number of shares of Company Common Stock outstanding immediately
prior to the Effective Time (the "Cash Election Number"), the Cash Election
Shares shall be converted into the right to receive Parent Common Stock and cash
in the following manner:
each Cash Election Share shall be converted into the right to receive (i)
an amount in cash, without interest, equal to the product of (x) the Cash
Consideration and (y) a fraction (the "Cash Fraction"), the numerator of
which shall be the Cash Election Number and the denominator of which
shall be the total number of Cash Election Shares, and (ii) such number
of shares of (rounded to the nearest one thousandth of a share) Parent
Common Stock equal to the product of (x) the Cash Consideration divided
by the Average Parent Share Price and (y) a fraction equal to one minus
the Cash Fraction.
(c) ADJUSTMENTS RELATING TO TAX OPINIONS. If either (i) the tax opinion of
counsel to Parent referred to in Section 7.02(c) cannot be rendered (as
reasonably determined by counsel to Parent and concurred in by Greenberg,
Traurig, Hoffman, Rosen, Lipoff & Quentel ("Greenberg, Traurig")) or (ii) the
tax opinion of Greenberg, Traurig referred to in Section 7.03(b) cannot be
rendered (as reasonably determined by Greenberg, Traurig and concurred in by
counsel to Parent), in either case as a result of the Merger potentially failing
to satisfy continuity of interest requirements under applicable federal income
tax principles relating to reorganizations under Section 368(a) of the Code,
then Parent shall reduce to the minimum extent necessary to enable the relevant
tax opinion or opinions, as the case may be, to be rendered, the Cash Election
Number.
(d) EXERCISE OF ELECTION. All Cash Elections shall be made on a form
designed for that purpose and mutually acceptable to the Company and Parent (a
"Form of Election") and mailed to holders of record of shares of Company Common
Stock as of the record date for the Stockholders' Meeting or such other date as
Parent and the Company shall mutually agree (the "Election Form Record Date").
Parent and the Company shall make available one or more Forms of Election as may
be reasonably requested by all persons who become holders (or beneficial owners)
of Company Common Stock between the Election Form Record Date and the close of
business on the day prior to the Election Deadline (as defined below). Elections
shall be made by holders of Company Common Stock by mailing to the Exchange
Agent (as defined in Section 2.04) a Form of Election. To be effective, a Form
of Election must be properly
3
<PAGE>
completed, signed and submitted to the Exchange Agent and accompanied by the
Certificates (as defined in Section 2.04(b)) representing the shares of Company
Common Stock as to which the election is being made (or an appropriate guarantee
of delivery by an appropriate trust company in the United States or a member of
a registered national securities exchange or the National Association of
Securities Dealers, Inc.). Parent will have the discretion, which it may
delegate in whole or in part to the Exchange Agent, to reasonably determine
whether Forms of Election have been properly completed, signed and submitted or
revoked and to disregard immaterial defects in Forms of Election. The decision
of Parent (or the Exchange Agent) in such matters shall be conclusive and
binding. The Exchange Agent shall make a good faith effort to notify any person
of any defect not waived by Parent in a Form of Election submitted to the
Exchange Agent. The Exchange Agent shall also make all computations contemplated
by this Section 2.03 and all such computations shall, absent manifest error, be
conclusive and binding on the holders of Company Common Stock.
(e) ELECTION DEADLINE. A Form of Election must be received by the Exchange
Agent (as defined below) by the close of business on the last business day prior
to the Closing Date (the "Election Deadline") in order to be effective. Any
holder of Company Common Stock who has made an election by submitting a Form of
Election to the Exchange Agent may at any time prior to the Election Deadline
change such holder's election by submitting a revised Form of Election, properly
completed and signed, that is received by the Exchange Agent prior to the
Election Deadline. Any holder of Company Common Stock may at any time prior to
the Election Deadline revoke his election and withdraw his Certificates
deposited with the Exchange Agent by written notice to the Exchange Agent
received by the Election Deadline. As soon as practicable after the Election
Deadline, the Exchange Agent shall determine the allocation of the cash portion
of the Merger Consideration and the stock portion of the Merger Consideration
and shall notify Parent of its determination. Promptly after such notification,
Parent shall issue a press release announcing in reasonable detail the results
of the Exchange Agent's allocation of the Merger Consideration.
(f) DEEMED NON-ELECTION. For the purposes hereof, a holder of record of
Company Common Stock who does not submit a Form of Election which is received
and accepted as such by the Exchange Agent prior to the Election Deadline shall
be deemed not to have made a Cash Election.
SECTION 2.04. EXCHANGE OF CERTIFICATES. (a) EXCHANGE AGENT. From and after
the Effective Time, (i) Parent shall make available to a bank or trust company
designated by Parent and reasonably satisfactory to the Company (the "Exchange
Agent"), for the benefit of the holders of shares of Company Common Stock, for
exchange in accordance with this Article II through the Exchange Agent, (i)
certificates evidencing such number of shares of Parent Common Stock issuable to
holders of Company Common Stock in the Merger pursuant to Section 2.03 and (ii)
cash in the amount required to be exchanged for shares of Company Common Stock
in the Merger pursuant to Section 2.03 (such certificates for shares of Parent
Common Stock, together with any dividends or distributions with respect thereto,
and such cash, being hereinafter referred to as the "Exchange Fund"). The
Exchange Agent shall, pursuant to written instructions jointly furnished by
Parent and the Company, deliver the cash and the Parent Common Stock
contemplated to be issued pursuant to Section 2.03 out of the Exchange Fund.
Except as contemplated by Section 2.04(g) hereof, the Exchange Fund shall not be
used for any other purpose.
(b) EXCHANGE PROCEDURES. As promptly as practicable after the Effective
Time, Parent shall cause the Exchange Agent to mail to each holder of a
certificate or certificates (to the extent such certificates have not already
been submitted to the Exchange Agent with Forms of Election) which immediately
prior to the Effective Time represented outstanding shares of Company Common
Stock (the "Certificates") (i) a letter of transmittal (which shall be in
customary form and shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent) and (ii) instructions for use in effecting
the surrender of the Certificates in exchange for the Merger Consideration.
4
<PAGE>
(c) EXCHANGE OF CERTIFICATES. Upon surrender to the Exchange Agent of a
Certificate for cancellation, together with such letter of transmittal, duly
executed and completed in accordance with the instructions thereto, and such
other documents as may be reasonably required pursuant to such instructions, the
holder of such Certificate shall be entitled to receive in exchange therefor (A)
a certificate representing that number of whole shares of Parent Common Stock,
if any, to which such holder is entitled pursuant to this Article II and (B) a
check in the amount equal to the cash, if any, to which such holder is entitled
pursuant to the provisions of this Article II (including any cash in lieu of any
fractional shares of Parent Common Stock to which such holder is entitled
pursuant to Section 2.04(f) and any dividends or other distributions to which
such holder is entitled pursuant to Section 2.04(d) (together, the "Additional
Payments")), and the Certificate so surrendered shall forthwith be cancelled. In
the event of a transfer of ownership of shares of Company Common Stock which is
not registered in the transfer records of the Company, the applicable Merger
Consideration and Additional Payments, if any, may be issued to a transferee if
the Certificate representing such shares of Company Common Stock is presented to
the Exchange Agent, accompanied by all documents required to evidence and effect
such transfer and by evidence that any applicable stock transfer taxes have been
paid. Until surrendered as contemplated by this Section 2.04, each Certificate
shall be deemed at all times after the Effective Time to represent only the
right to receive upon such surrender the applicable Merger Consideration with
respect to the shares of Company Common Stock formerly represented thereby and
Additional Payments, if any.
(d) DISTRIBUTIONS WITH RESPECT TO UNSURRENDERED CERTIFICATES. No dividends
or other distributions declared or made after the Effective Time with respect to
Parent Common Stock with a record date after the Effective Time shall be paid to
the holder of any unsurrendered Certificate with respect to the shares of Parent
Common Stock the holder thereof is entitled to receive upon surrender thereof,
and no cash payment in lieu of any fractional shares shall be paid to any such
holder pursuant to Section 2.04(f), until the holder of such Certificate shall
surrender such Certificate. Subject to the effect of escheat, tax or other
applicable Laws, following surrender of any such Certificate, there shall be
paid to the holder of the certificates representing whole shares of Parent
Common Stock issued in exchange therefor, without interest, (i) promptly, the
amount of any cash payable with respect to a fractional share of Parent Common
Stock to which such holder is entitled pursuant to Section 2.04(f) and the
amount of dividends or other distributions with a record date after the
Effective Time and theretofore paid with respect to such whole shares of Parent
Common Stock, and (ii) at the appropriate payment date, the amount of dividends
or other distributions, with a record date after the Effective Time but prior to
surrender and a payment date occurring after surrender, payable with respect to
such whole shares of Parent Common Stock. After the Effective Time, each
outstanding Certificate which theretofore represented shares of Company Common
Stock shall, until surrendered for exchange in accordance with this Section
2.04, be deemed for all purposes to evidence ownership of the number of shares
of Parent Common Stock into which the shares of Company Common Stock (which,
prior to the Effective Time, were represented thereby) shall have been so
converted.
(e) NO FURTHER RIGHTS IN COMPANY COMMON STOCK. All shares of Parent Common
Stock issued or cash paid upon conversion of the shares of Company Common Stock
in accordance with the terms hereof (including any cash paid pursuant to Section
2.04(d) or (f)) shall be deemed to have been issued in full satisfaction of all
rights pertaining to such shares of Company Common Stock.
(f) NO FRACTIONAL SHARES. No certificates or scrip representing fractional
shares of Parent Common Stock shall be issued upon the surrender for exchange of
Certificates, and such fractional share interests will not entitle the owner
thereof to vote or to any other rights of a stockholder of Parent. Each holder
of a fractional share interest shall be paid an amount in cash equal to the
product obtained by multiplying (i) such fractional share interest to which such
holder (after taking into account all fractional share interests then held by
such holder) would otherwise be entitled by (ii) the Average Parent Share Price.
As promptly as practicable after the determination of the amount of cash, if
any, to be paid to holders of fractional share interests, the Exchange Agent
shall so notify Parent, and Parent shall deposit such amount
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with the Exchange Agent and shall cause the Exchange Agent to forward payments
to such holders of fractional share interests subject to and in accordance with
the terms of Sections 2.04(b), (c) and (d).
(g) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund
(including any shares of Parent Common Stock) which remains undistributed to the
holders of Company Common Stock for six months after the Effective Time shall be
delivered to Parent, upon demand, and any holders of Company Common Stock who
have not theretofore complied with this Article II shall thereafter look only to
Parent for the applicable Merger Consideration and any Additional Payments to
which they are entitled. Any portion of the Exchange Fund remaining unclaimed by
holders of shares of Company Common Stock as of a date which is immediately
prior to such time as such amounts would otherwise escheat to or become property
of any government entity shall, to the extent permitted by applicable Law,
become the property of Parent free and clear of any claims or interest of any
person previously entitled thereto.
(h) NO LIABILITY. None of the Exchange Agent, Parent or the Surviving
Corporation shall be liable to any holder of Certificates for any shares of
Parent Common Stock (or dividends or distributions with respect thereto), or
cash delivered to a public official pursuant to any abandoned property, escheat
or similar law.
(i) WITHHOLDING RIGHTS. Each of the Surviving Corporation and Parent shall
be entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Certificates such amounts as it is
required to deduct and withhold with respect to the making of such payment under
the Code, or any provision of state, local or foreign tax law. To the extent
that amounts are so withheld by the Surviving Corporation or Parent, as the case
may be, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the Certificates in respect of
which such deduction and withholding was made by the Surviving Corporation or
Parent, as the case may be.
(j) LOST CERTIFICATES. If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Surviving Corporation, the posting by such person of a bond, in such reasonable
amount as the Surviving Corporation may direct, as indemnity against any claim
that may be made against it with respect to such Certificate, the Exchange Agent
will issue in exchange for such lost, stolen or destroyed Certificate the
applicable Merger Consideration and Additional Payments, if any.
(k) FURTHER ASSURANCES. If, at any time after the Effective Time, the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either of the Merger Sub or the Company acquired or to
be acquired by the Surviving Corporation as a result of, or in connection with,
the Merger or otherwise to carry out this Agreement, the officers of the
Surviving Corporation shall be authorized to execute and deliver, in the name
and on behalf of each of the Merger Sub and the Company or otherwise, all such
deeds, bills of sale, assignments and assurances and to take and do, in such
names and on such behalves or otherwise, all such other actions and things as
may be necessary or desirable to vest, perfect or confirm any and all right,
title and interest in, to and under such rights, properties or assets in the
Surviving Corporation or otherwise to carry out the purposes of this Agreement.
SECTION 2.05. STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of the Company shall be closed and there shall be no further
registration of transfers of shares of Company Common Stock thereafter on the
records of the Company. From and after the Effective Time, the holders of
Certificates shall cease to have any rights with respect to such shares of
Company Common Stock, except as otherwise provided herein or by law. On or after
the Effective Time, any Certificates presented to the Exchange Agent or Parent
for any reason shall be converted into the applicable Merger Consideration and
Additional Payments, if any.
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SECTION 2.06. COMPANY STOCK OPTIONS. (a) Each option (a "Company Stock
Option") outstanding, whether or not exercisable and whether or not vested, at
the Effective Time under the Company's 1992 Employee Incentive and Non-Qualified
Stock Option Plan or any other plans (the "Company Stock Option Plans") shall be
cancelled by the Company immediately prior to the Effective Time, and each
holder of a cancelled Company Stock Option shall be entitled to receive at the
Effective Time or as soon as practicable thereafter from the Company in
consideration for the cancellation of such Company Stock Option an amount (the
"Option Spread") equal to the product of (i) the number of shares of Company
Common Stock previously subject to such Company Stock Option and (ii) the
excess, if any, of the Cash Consideration over the exercise price per share of
Company Common Stock previously subject to such Company Stock Option. The Option
Spread, after reduction for applicable tax withholding, if any (the "Net Option
Spread"), shall be paid in cash or, if a holder of Company Stock Options so
elects in writing at least 10 days prior to the Effective Time with respect to
any portion of such holder's Company Stock Options, in a number of shares of
Parent Common Stock determined by dividing (i) the aggregate Net Option Spread
payable to such holder by (ii) the Average Parent Share Price (subject to
adjustment in accordance with the proviso in the first sentence of Section
2.03(a) hereof).
(b) Not later than 40 days prior to the expected Effective Time, the Company
shall provide each holder of a Company Stock Option an election form pursuant to
which each holder may make the election specified in Section 2.06(a).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in a separate disclosure schedule referring to the
Sections contained in this Agreement, which has been delivered by the Company to
Parent prior to the execution of this Agreement (the "Company Disclosure
Schedule"), the Company hereby represents and warrants to the Parent and Merger
Sub that:
SECTION 3.01. ORGANIZATION AND QUALIFICATION; SUBSIDIARIES. Each of the
Company and each subsidiary of the Company (each, a "Subsidiary") is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has the requisite corporate
power and authority and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as it is now being
conducted, except where the lack of such power, authority and approval would
not, individually or in the aggregate, have a Company Material Adverse Effect
(as defined below). Each of the Company and each Subsidiary is duly qualified or
licensed as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such qualification or
licensing necessary, except for such failures to be so qualified or licensed and
in good standing that would not, individually or in the aggregate, have a
Company Material Adverse Effect. The term "Company Material Adverse Effect"
means any circumstances, change in, or effect on, the Company Group, when taken
as a consolidated whole, or affecting the Company Commercial Aircraft Business,
the Company Government Business or the Company Aeroderivative Business, whether
individually or collectively as to any one or more of such Company Businesses,
which is, or could reasonably be expected in the future to be, materially
adverse to the operations, assets or liabilities, employee relationships,
customer or supplier relationships, earnings or results of operations, financial
projections or forecasts, or the business prospects and condition (financial or
otherwise) of the Company Group or any one or more of the Company Businesses,
whether individually or taken as a consolidated whole with respect to the
Company Group. A true and complete list of all the Subsidiaries, together with
the jurisdiction of incorporation of each Subsidiary and the percentage of the
outstanding capital stock of each Subsidiary owned by the Company and each other
Subsidiary, is set forth in Section 3.01 of the Company Disclosure Schedule.
Except as set forth in Section 3.01 of the Company Disclosure Schedule, the
Company does not directly or indirectly own any equity or similar interest in,
or
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any interest convertible into or exchangeable or exercisable for any equity or
similar interest in, any corporation, partnership, limited liability company,
joint venture or other business association or entity.
SECTION 3.02. CERTIFICATE OF INCORPORATION AND BY-LAWS. The Company has
heretofore furnished to Parent complete and correct copies of the Certificates
of Incorporation and the By-laws or equivalent organizational documents, each as
amended to date, of the Company and each Subsidiary. Such Certificates of
Incorporation, By-laws and equivalent organizational documents are in full force
and effect. Neither the Company nor any Subsidiary is in violation of any
provision of its Certificate of Incorporation, By-laws or equivalent
organizational documents.
SECTION 3.03. CAPITALIZATION. The authorized capital stock of the Company
consists of (i) 25,000,000 shares of Company Class A Stock, (ii) 25,000,000
shares of Company Class B Stock, and (iii) 2,500,000 shares of preferred stock,
par value $.01 per share, issuable in such series and with such rights and
designations as the Board of Directors of the Company may from time to time
determine (the "Company Preferred Stock"). As of December 31, 1996, (a)
6,971,213 shares of Company Class A Stock were issued and outstanding, all of
which were validly issued, fully paid and nonassessable, (b) 2,900 shares of
Company Class A Stock were held in the treasury of the Company or the
Subsidiaries, (c) 142,875 shares of Company Class A Stock were reserved for
future issuance pursuant to the Company Stock Option Plans, (d) 9,778,176 shares
of Company Class B Stock were issued and outstanding, all of which were validly
issued, fully paid and nonassessable, (e) 47,231 shares of Company Class B Stock
were held in the treasury of the Company or the Subsidiaries, (f) 377,875 shares
of Company Class B Stock were reserved for future issuance pursuant to the
Company Stock Option Plan, (g) 185,531 shares of Company Class B Stock were
reserved for future issuance pursuant to the Company's 1995 Employee Stock
Purchase Plan (the "ESPP") and (h) no shares of Company Preferred Stock were
issued and outstanding. All publicly traded shares of Company Class A Stock and
Company Class B Stock have been approved for trading on the National Association
of Securities Dealers, Inc. Automated Quotation/National Market System ("NASDAQ/
NMS"). Set forth in Section 3.03 of the Company Disclosure Schedule is a summary
setting forth the number of outstanding Company Options, stock incentive rights
or any other rights to acquire shares of Company Common Stock pursuant to the
Company Stock Option Plan and the exercise price therefor as of December 31,
1996. From December 31, 1996 through the date of this Agreement, the Company has
not issued, sold, pledged, disposed of, granted, encumbered, or authorized the
issuance, sale, pledge, disposition, grant or encumbrance of any shares of
capital stock of any class of the Company or any Subsidiary or any rights to
acquire such shares or other equity interests in the Company or any Subsidiary,
except pursuant to the exercise of Company Options that were outstanding as of
December 31, 1996 and those additional Company Options granted since December
31, 1996 that are set forth in Section 3.03 of the Company Disclosure Schedule,
and except for the authorization to issue shares of Company Class B Stock
pursuant to the UNC Merger Agreement, which authorization has been conditionally
revoked and rescinded in connection with the execution and delivery of this
Agreement. Except as set forth in this Section 3.03 or in Section 3.03 of the
Company Disclosure Schedule, and except for the authorization to issue shares of
Company Class B Stock pursuant to the UNC Merger Agreement, which authorization
has been conditionally revoked and rescinded in connection with the execution
and delivery of this Agreement, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character relating to the issued
or unissued capital stock of the Company or any Subsidiary or obligating the
Company or any Subsidiary to issue or sell any shares of capital stock of, or
other equity interests in, the Company or any Subsidiary. All shares of Company
Common Stock subject to issuance as aforesaid, upon issuance on the terms and
conditions specified in the instruments pursuant to which they are issuable,
will be duly authorized, validly issued, fully paid and nonassessable. Except as
disclosed in Section 3.03 of the Company Disclosure Schedule, there are no
outstanding contractual obligations of the Company or any Subsidiary to
repurchase, redeem or otherwise acquire any shares of Company Class A Stock or
Company Class B Stock or any capital stock of or any equity interests in any
Subsidiary. Except as disclosed in Section 3.03 of the Company Disclosure
Schedule, each outstanding share of capital stock of each Subsidiary is duly
authorized, validly issued, fully paid and nonassessable and each such share
owned by the
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Company or any Subsidiary is free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreements, limitations on
the Company's or such other Subsidiary's voting rights, charges and other
encumbrances of any nature whatsoever.
SECTION 3.04. AUTHORITY RELATIVE TO THIS AGREEMENT. The Company has all
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the Merger. The execution
and delivery of this Agreement by the Company and the consummation by the
Company of the Merger have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of the Company
are necessary to authorize this Agreement or to consummate the Merger (other
than, with respect to the Merger, the adoption of this Agreement by the holders
of a majority of the shares of Company Class A Stock and the filing and
recordation of appropriate merger documents as required by Delaware Law). This
Agreement has been duly and validly executed and delivered by the Company and,
assuming the due authorization, execution and delivery by Parent and Merger Sub,
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
SECTION 3.05. NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company will not, (i) conflict with
or violate the Certificate of Incorporation or By-laws or equivalent
organizational documents of the Company or any Subsidiary, as applicable, (ii)
conflict with or violate any domestic (federal, state or local) or foreign law,
rule, regulation, order, judgment or decree (collectively, "Laws") applicable to
the Company or any Subsidiary or by which any property or asset of the Company
or any Subsidiary is bound or affected, except for such conflicts or violations
that, individually or in the aggregate, are not reasonably likely to have a
Company Material Adverse Effect, or (iii) result in any breach of or constitute
a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of the Company or any Subsidiary pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or any property
or asset of the Company or any Subsidiary is bound or affected, except as
disclosed in Section 3.05(a) of the Company Disclosure Schedule and except for
any such breaches, defaults or other occurrences that, individually or in the
aggregate, would not have a Company Material Adverse Effect and will not prevent
or delay the consummation of the transactions contemplated by this Agreement.
(b) Except as disclosed in Section 3.05(b) of the Company Disclosure
Schedule, the execution and delivery of this Agreement by the Company do not,
and the performance of this Agreement by the Company will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic, foreign or
supranational, except (i) for applicable requirements, if any, of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Securities Act of
1933, as amended (the "Securities Act"), state securities or "blue sky" laws
("Blue Sky Laws"), state takeover laws, the pre-merger notification requirements
of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
rules and regulations thereunder (the "HSR Act"), and filing and recordation of
appropriate merger documents as required by Delaware Law and the rules of the
National Association of Securities Dealers ("NASD") and (ii) where failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, individually or in the aggregate, is not reasonably
likely to have a Company Material Adverse Effect.
SECTION 3.06. COMPLIANCE WITH LAWS; PERMITS. (a) Neither the Company nor any
Subsidiary is in conflict with, or in default or violation of, (i) any Laws
applicable to the Company or any Subsidiary or by
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which any property or asset of the Company or any Subsidiary is bound or
affected, or (ii) any of the Company Permits (as defined below), except for any
such conflicts, defaults or violations that do not, individually or in the
aggregate, have a Company Material Adverse Effect.
(b) Except where non-compliance would not have a Company Material Adverse
Effect, the Company and the Subsidiaries have complied with all applicable
federal procurement laws and regulations including, without limitation, the
Truth in Negotiations Act, the Foreign Corrupt Practices Act, the Office of
Federal Procurement Policy Act Amendments of 1988 ("Procurement Integrity"
Amendments), the Cost Principles and Cost Accounting Standards, and the Federal
Acquisition Regulations and all supplements thereto, in connection with the
Government Contracts (as defined below), and to the Company's Knowledge, no
person has made any allegation that the Company or any Subsidiary has not so
complied.
(c) Each of the Company and the Subsidiaries is in possession of all
franchises, grants, authorizations, licenses, permits, easements, variances,
exceptions, consents, certificates, approvals and orders from all federal,
state, local and foreign authorities and agencies, including without limitation,
the Federal Aviation Administration, necessary for the Company or any of its
Subsidiaries, to own, lease and operate its properties or to carry on the
Company Businesses (as hereinafter defined) (the "Company Permits"), and no
suspension or cancellation of any of the Company Permits is pending or, to the
Company's Knowledge, threatened, except where the failure to have, or the
suspension or cancellation of, any of the Company Permits, individually or in
the aggregate, would not have a Company Material Adverse Effect.
SECTION 3.07. SEC FILINGS; FINANCIAL STATEMENTS.
(a) The Company has filed all forms, reports and documents required to be
filed by it with the Securities and Exchange Commission (the "SEC") since
September 30, 1993 and has made available to the Parent all registration
statements filed by the Company with the SEC, including all exhibits filed in
connection therewith (on all forms applicable to the registration of securities)
since September 30, 1993 and prior to the date of this Agreement (collectively,
the "Company SEC Reports"), and has heretofore made available to Parent complete
(I.E., unredacted) copies of each exhibit (which is in effect as of the date
hereof) to the Company SEC Reports filed with the SEC. The Company SEC Reports
(i) were prepared in all material respects in accordance with the requirements
of the Securities Act or the Exchange Act, as the case may be, and the rules and
regulations thereunder and (ii) did not at the time they were filed contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not misleading.
(b) Except as disclosed in the Company SEC Reports, no Subsidiary is
required to file any form, report or other document with the SEC.
(c) Each of the consolidated financial statements (including, in each case,
any notes and schedules thereto) contained in the Company SEC Reports complied
as to form with the applicable accounting requirements and rules and regulations
of the SEC and was prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto), and each fairly
presented the consolidated financial position, results of operations and cash
flows of the Company and the consolidated Subsidiaries as at the respective
dates thereof and for the respective periods indicated therein in accordance
with United States generally accepted accounting principles (subject, in the
case of unaudited statements, to normal and recurring year-end adjustments which
were not and are not expected, individually or in the aggregate, to have a
Company Material Adverse Effect).
(d) Except as and to the extent set forth on the consolidated balance sheet
of the Company and the consolidated Subsidiaries as of September 30, 1996,
including the notes thereto (the "Company 1996 Balance Sheet"), neither the
Company nor any Subsidiary has any liability or obligation of any nature
(whether accrued, absolute, contingent or otherwise) that would be required to
be reflected on a balance
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sheet, or in the notes thereto, prepared in accordance with United States
generally accepted accounting principles, except for liabilities and obligations
(i) disclosed in any Company SEC Report filed since September 30, 1996 and prior
to the date of this Agreement, (ii) incurred since September 30, 1996 in the
ordinary course of business which, individually or in the aggregate, do not have
a Company Material Adverse Effect, or (iii) incurred pursuant to this Agreement.
(e) The Company has heretofore furnished to Parent complete and correct
copies of all material amendments and modifications that have not been filed by
the Company with the SEC to all agreements, documents and other instruments that
previously had been filed by the Company with the SEC and are currently in
effect.
SECTION 3.08. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since September 30,
1996, except as contemplated by this Agreement, disclosed in Section 3.08 of the
Company Disclosure Schedule, or disclosed in any Company SEC Report filed since
September 30, 1996, the Company and the Subsidiaries have conducted their
businesses only in the ordinary course and in a manner consistent with past
practice and, since September 30, 1996, there has not been (a) any event or
events having, individually or in the aggregate, a Company Material Adverse
Effect, (b) any change by the Company in its accounting methods, principles or
practices, (c) any revaluation by the Company of any material asset (including,
without limitation, any writing down or writing up of the value of inventory,
writing off of notes or accounts receivable or reversing of any accruals or
reserves), other than in the ordinary course of business consistent with past
practice, (d) any entry by the Company or any Subsidiary into any commitment or
transaction material to the Company and the Subsidiaries taken as a whole,
except in the ordinary course of business and consistent in all material
respects with past practice, (e) other than regular dividends, of which $.01 per
share of Company Common Stock was paid in February 1996 and $.012 per share of
Company Common Stock was paid in January 1997, any declaration, setting aside or
payment of any dividend or distribution in respect of any capital stock of the
Company or any redemption, purchase or other acquisition of any of its
securities, or (f) other than pursuant to the contracts referred to in Section
3.10 or as expressly provided for in this Agreement, any increase in or
establishment of any bonus, insurance, severance, deferred compensation,
pension, retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation rights,
performance awards, or restricted stock awards), stock purchase or other
employee benefit plan, or any other increase in the compensation payable or to
become payable to any officers or key employees of the Company or any
Subsidiary, except in the ordinary course of business consistent in all material
respects with past practice. The results of operations for the most recently
completed fiscal quarter are not materially lower than the results of operations
for the immediately preceding fiscal quarter, and there is no reason to believe
that the results of operations for the current fiscal quarter will be materially
lower than the results of operations for the Company's most recently completed
fiscal quarter.
SECTION 3.09. ABSENCE OF LITIGATION.
(a) Except as disclosed in the Company SEC Reports or in Section 3.09 of the
Company Disclosure Schedule, there is no claim, action, proceeding or
investigation pending or, to the Company's Knowledge, threatened against the
Company or any Subsidiary, or any property or asset of the Company or any
Subsidiary, before any court, arbitrator or Governmental Authority, which,
individually or when aggregated with other claims, actions, proceedings or
investigations or product liability claims, actions, proceedings or
investigations which are reasonably likely to result from facts and
circumstances that have given rise to such a claim, action, proceeding or
investigation, would have a Company Material Adverse Effect. As of the date
hereof, neither the Company nor any Subsidiary nor any property or asset of the
Company or any Subsidiary is subject to any order, writ, judgment, injunction,
decree, determination or award having, individually or in the aggregate, a
Company Material Adverse Effect.
(b) Neither the Company nor any Subsidiary has received notice from any
source that the Company or any Subsidiary may be liable with respect to product
liability or worker's compensation claims, except
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for such claims that, if determined adversely to the Company and the
Subsidiaries, would not, individually or in the aggregate, have a Company
Material Adverse Effect.
SECTION 3.10. EMPLOYEE BENEFIT; ERISA.
(a) Section 3.10(a) of the Company Disclosure Schedule contains a list of
all "employee pension benefit plans" (as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes
referred to herein as "Company Pension Plans"), "employee welfare benefit plans"
(as defined in Section 3(1) of ERISA) (sometimes referred to herein as "Welfare
Plans"), and each other plan, arrangement or policy (written or oral) relating
to stock options, stock purchases, compensation, deferred compensation,
severance, fringe benefits or other employee benefits, in each case maintained,
or contributed to, by the Company or any of the Subsidiaries or any other person
or entity that, together with the Company is treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code (each, together with the Company, a
"Commonly Controlled Entity"), for the benefit of any current or former
employees, officers, agents or directors of the Company or any of its
subsidiaries (all of the foregoing being herein called "Company Benefit Plans").
The Company has made available to Parent true and complete copies of (w) each
Company Benefit Plan (or, in the case of any unwritten Company Benefit Plans,
descriptions thereof), (x) the most recent annual report on Form 5500 filed with
the Internal Revenue Service with respect to each Company Benefit Plan (if any
such report was required), (y) the most recent summary plan description (or
similar document) for each Company Benefit Plan for which a summary plan
description is required or was otherwise provided to plan participants or
beneficiaries and (z) each trust agreement and group annuity contract relating
to any Company Benefit Plan.
(b) Except as disclosed in Section 3.10(b) of the Company Disclosure
Schedule or where non-disclosure would not have a Company Material Adverse
Effect, all Company Pension Plans and related trusts that are intended to be
tax-qualified plans have been, since the effective date of the Tax Reform Act of
1986, the subject of determination letters from the Internal Revenue Service to
the effect that such Company Pension Plans and related trusts are qualified and
exempt from federal income taxes under Sections 401(a) and 501(a), respectively,
of the Code, and no such determination letter has been revoked nor, to the
Knowledge of the Company, has revocation been threatened; no event has occurred
and no circumstances exist that would adversely affect the tax qualification of
such Company Pension Plan nor has any such Company Pension Plan been amended
since the date of its most recent determination letter or application therefor
in any respect that would adversely affect its qualification or materially
increase its costs or require security under Section 302 of ERISA.
(c) Except as would not, individually or in the aggregate, have a Company
Material Adverse Effect: (i) each Company Benefit Plan has been administered in
accordance with its terms; (ii) the Company Benefit Plans are, and have been
administered, in compliance with the applicable provisions of ERISA, the Code,
and all other applicable laws; (iii) there are no investigations by any
governmental agency, termination proceedings or other claims (except claims for
benefits payable in the normal operation of the Company Benefit Plans), suits or
proceedings against or involving any Company Benefit Plan or asserting any
rights to or claims for benefits under any Company Benefit Plan that could give
rise to any liability, and there are not any facts that would reasonably be
expected to give rise to any liability in the event of any such investigation,
claim, suit or proceeding.
(d) No Commonly Controlled Entity is required to contribute to any
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA or, except as set
forth in Section 3.10(d) of the Company Disclosure Schedule, has withdrawn from
any such multiemployer plan where such withdrawal has resulted or would result
in any material "withdrawal liability" (within the meaning of Section 4201 of
ERISA) that has not been fully paid. Except as set forth in Section 3.10(d) of
the Company Disclosure Schedule, no Commonly Controlled Entity would incur any
material withdrawal liability if it were to withdraw from a multiemployer plan
with respect to which it currently has a contribution obligation. No Commonly
Controlled Entity, nor any officer of any Commonly Controlled Entity, nor any of
the Company Benefit Plans which are subject to
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ERISA, including the Company Pension Plans, any trusts created thereunder or any
trustee or administrator thereof, has engaged in a "prohibited transaction" (as
such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any
other breach of fiduciary responsibility that could subject any Commonly
Controlled Entity or any officer of any Commonly Controlled Entity to any tax or
penalty on prohibited transactions imposed by such Section 4975 or to any
material liability under Section 502(i) or (l) of ERISA. Neither any of such
Company Benefit Plans nor any of such trusts has been terminated, nor has there
been any "reportable event" (as that term is defined in Section 4043 of ERISA)
with respect thereto, during the last five years.
(e) Except as set forth in Section 3.10(e) of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries is a party to any
agreement, contract or arrangement that could result, separately or in the
aggregate, in the payment of any "excess parachute payments" within the meaning
of Section 280G of the Code.
(f) Except as set forth in Section 3.10(f) of the Company Disclosure
Schedule, to the Knowledge of the Company, the disallowance of a deduction under
Section 162(m) of the Code for employee remuneration will not apply to any
amount paid or payable by the Company or any Subsidiary.
(g) Except as would not have a Company Material Adverse Effect, no liability
under Title IV of ERISA has been incurred by any Commonly Controlled Entity that
has not been satisfied in full, and no condition exists that presents a material
risk to any Commonly Controlled Entity of incurring a liability under such
Title, other than liability for premiums due the Pension Benefit Guaranty
Corporation ("PBGC") (which premiums have been paid when due). To the extent
this representation applies to sections 4064, 4069 or 4204 of Title IV of ERISA,
it is made not only with respect to each Company Pension Plan but also with
respect to any employee benefit plan, program, agreement or arrangement subject
to Title IV of ERISA to which the Company or any Commonly Controlled Entity
made, or was required to make, contributions during the five (5) year period
ending on the Closing Date. Except as would not have a Company Material Adverse
Effect, no Company Pension Plan or any trust established thereunder has incurred
any "accumulated funding deficiency" (as defined in section 302 of ERISA and
section 412 of the Code), whether or not waived, as of the last day of the most
recent fiscal year of each Company Pension Plan ended prior to the Closing Date;
and all contributions required to be made with respect thereto (whether pursuant
to the terms of any Company Pension Plan or otherwise) on or prior to the
Closing Date have been timely made.
(h) With respect to each Company Benefit Plan not subject to United States
Law (a "Company Foreign Benefit Plan"), except as would not have a Company
Material Adverse Effect, (i) the fair market value of the assets of each funded
Company Foreign Benefit Plan, the liability of each insurer for any Company
Foreign Benefit Plan funded through insurance or the book reserve established
for any Company Foreign Benefit Plan, together with any accrued contributions,
is sufficient to procure or provide for the accrued benefit obligations, as of
the Effective Time, with respect to all current and former participants in such
plan according to the actuarial assumptions and valuations most recently used to
determine employer contributions to such Company Foreign Benefit Plan and no
transaction contemplated by this Agreement shall cause such assets or insurance
obligations or book reserve to be less than such benefit obligations; and (ii)
each Company Foreign Benefit Plan required to be registered has been registered
and has been maintained in good standing with the appropriate regulatory
authorities.
(i) The Company and each of its Subsidiaries have not incurred any liability
under, and have complied in all respects with, the Worker Adjustment and
Retraining Notification Act of 1988 and the regulations promulgated thereunder.
SECTION 3.11. LABOR MATTERS.
(a) Except as set forth in Section 3.11(a) of the Company Disclosure
Schedule, with respect to employees of the Company: (i) to the Knowledge of the
Company, no senior executive or key employee
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has any plans to terminate employment with the Company or any of its
Subsidiaries; (ii) there is no unfair labor practice charge or complaint against
the Company or any of its Subsidiaries pending or, to the Knowledge of the
Company, threatened before the National Labor Relations Board or any other
comparable authority; (iii) there is no demand for recognition made by any labor
organization or petition for election filed with the National Labor Relations
Board or any other comparable authority which, individually or in the aggregate,
would have a Company Material Adverse Effect; (iv) no grievance or any
arbitration proceeding arising out of or under collective bargaining agreements
is pending and, to the Knowledge of Company, no claims therefor have been
threatened other than grievances or arbitrations incurred in the ordinary course
of business which, individually or in the aggregate, would not have a Company
Material Adverse Effect; (v) the consummation of the Merger and related
transactions contemplated by this Agreement will not give rise to termination of
any existing collective bargaining agreement or permit any labor organization to
reopen negotiations in respect of wages, hours or working conditions under any
such existing collective bargaining agreements; and (vi) there is no litigation,
arbitration proceeding, governmental investigation, administrative charge,
citation or action of any kind pending or, to the Knowledge of the Company or
any of its Subsidiaries, proposed or threatened against the Company relating to
employment, employment practices, terms and conditions of employment or wages
and hours which, individually or in the aggregate, would have a Company Material
Adverse Effect.
(b) Except as identified in Section 3.11(b) of the Company Disclosure
Schedule, none of the Company nor any of its Subsidiaries has any collective
bargaining relationship or duty to bargain with any Labor Organization (as such
term is defined in Section 2(5) of the National Labor Relations Act, as
amended), and none of the Company nor any of its Subsidiaries has recognized any
labor organization as the collective bargaining representative of any of its
employees.
SECTION 3.12. TITLE TO AND SUFFICIENCY OF ASSETS.
(a) As of the date hereof the Company and the Subsidiaries own, and as of
the Effective Time the Company and the Subsidiaries will own, good and
marketable title to all of their assets constituting personal property which is
material to their business (excluding, for purposes of this sentence, assets
held under leases), free and clear of any and all mortgages, liens,
encumbrances, charges, claims, restrictions, pledges, security interests or
impositions (collectively, "Liens"), except as set forth in the Company SEC
Reports or Section 3.12(a) of the Company Disclosure Schedule. Such assets,
together with all assets held by the Company and the Subsidiaries under leases,
include all tangible and intangible personal property, contracts and rights
necessary or required for the operation of the businesses of the Company
Businesses.
(b) As of the date hereof the Company and the Subsidiaries own, and as of
the Effective Time the Company and the Subsidiaries will own, good and
marketable title to all of their Real Estate which is material to such persons
(excluding, for purposes of this sentence, Real Estate leases), free and clear
of any and all Liens, except as set forth in the Company SEC Reports or in
Section 3.12(b) of the Company Disclosure Schedule or such other Liens on Real
Estate which would not, individually or in the aggregate, have a Company
Material Adverse Effect. Such Real Estate assets, together with all Real Estate
assets held by the Company and the Subsidiaries under leases, are adequate for
the operation of the Company Businesses as presently conducted. The leases to
all Real Estate occupied by the Company and the Subsidiaries which are material
to the operation of the Company Businesses are in full force and effect and no
event has occurred which with the passage of time, the giving of notice, or
both, would constitute a default or event of default by the Company or any
Subsidiary or, to the Knowledge of the Company, any other person who is a party
signatory thereto, other than such defaults or events of default which,
individually or in the aggregate, would not have a Company Material Adverse
Effect.
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SECTION 3.13. INTELLECTUAL PROPERTY. "Company Intellectual Property" means
all trademarks, trademark registrations, trademark rights, trade names, trade
name rights, patents, patent rights, patent applications, industrial models,
inventions, invention disclosures, copyrights, copyright registrations,
servicemarks, servicemark registrations, servicemark rights, trade secrets,
applications for trademarks and for servicemarks, know-how and other proprietary
rights, data and information of any nature or form used or held for use in
connection with the businesses of the Company and the Subsidiaries as currently
conducted or as currently contemplated by the Company, together with all
applications currently pending for any of the foregoing. Except as disclosed in
the Company SEC Reports, the Company and the Subsidiaries own or possess
adequate licenses or other valid rights to use all of the Company Intellectual
Property that is necessary or appropriate for the conduct or contemplated
conduct of the Company's or Subsidiaries' businesses. Section 3.13(a) of the
Company Disclosure Schedule lists each material license or other agreement
pursuant to which the Company has the right to use Company Intellectual Property
utilized in connection with any product of the Company and the Subsidiaries, the
cancellation or expiration of which would have a Company Material Adverse Effect
(the "Company Licenses"). There are no pending, and between the date hereof and
the Effective Time, there shall not be any pending, or to the Company's
Knowledge, threatened interferences, re-examinations, oppositions or nullities
involving any patents, patent rights or applications therefor of the Company or
any Subsidiary, except such as may be commenced by Parent or any subsidiary of
Parent and except such as would not, individually or in the aggregate, have a
Company Material Adverse Effect. There is no breach or violation by the Company
under, and, to the Company's Knowledge, there is no breach by any other party
to, any Company License that is reasonably likely to give rise to any
termination or any loss of rights thereunder. The Company has put in place
policies and procedures to maintain the confidentiality of, and trade secret
rights to, the processes and formulas, research and development results and
other know-how of the Company, the value of which to the Company is dependent
upon the maintenance of the confidentiality thereof and, to the Knowledge of the
Company, such policies and procedures have been complied with. The conduct of
the business of the Company and the Subsidiaries as currently conducted or
contemplated does not and will not infringe upon or conflict with, in any way,
any license, trademark, trademark right, trade name, trade name right, patent,
patent right, industrial model, invention, service mark, service right,
copyright or any other intellectual property rights of any third party that,
individually or in the aggregate, would have a Company Material Adverse Effect.
Except as disclosed in the Company SEC Reports, there are no infringements of
any Company Intellectual Property which, individually or in the aggregate, would
have a Company Material Adverse Effect. Except as set forth in Section 3.13(b)
of the Company Disclosure Schedule, neither the Company nor any Subsidiary has
licensed or otherwise permitted the use by any third party of any proprietary
information or Company Intellectual Property on terms or in a manner which,
individually or in the aggregate, would have a Company Material Adverse Effect.
SECTION 3.14. TAX MATTERS. (a) DEFINITIONS. As used in this Agreement:
(i) "Closing Agreement" means a written and legally binding agreement
with a taxing authority relating to Taxes.
(ii) "Tax Return" means any report, return, information statement, payee
statement or other information required to be provided to any federal,
state, local or foreign Governmental Authority, or otherwise retained, with
respect to Taxes or the Company Benefit Plans.
(iii) "Tax Ruling" means a written ruling of a taxing authority relating
to Taxes.
(iv) "Taxes" means any and all taxes, levies, imposts, duties,
assessments, charges and withholdings imposed or required to be collected by
or paid over to any federal, state, local, supra-national or foreign
Governmental Authority or any political subdivision thereof, including
without limitation income, gross receipts, ad valorem, value added, minimum
tax, franchise, sales, use, excise, license, real or personal property,
unemployment, disability, stock transfer, mortgage recording, estimated,
withholding or other tax, governmental fee or other like assessment or
charge of any kind whatsoever,
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and including any interest, penalties, fines, assessments or additions to
tax imposed in respect of the foregoing, or in respect of any failure to
comply with any requirement regarding Tax Returns.
(b) REPRESENTATIONS. Except for representations and warranties made with
respect to federal and state income Taxes, all representations and warranties
made in this Section 3.14(b) with respect to Taxes are made to the best
Knowledge of the Company. Subject to the foregoing, and except as set forth in
Section 3.14(b) of the Company Disclosure Schedule or as would not, individually
or in the aggregate, have a Company Material Adverse Effect:
(i) FILING OF TAX RETURNS. The Company and each of the Subsidiaries have
filed all Tax Returns required to be filed by each of them and such Tax
Returns are in all material respects true, complete and correct and filed on
a timely basis.
(ii) PAYMENT OF TAXES. The Company and each of the Subsidiaries have,
within the time and in the manner prescribed by law, paid all Taxes that are
currently due and payable, except for those contested in good faith and for
which adequate reserves have been taken.
(iii) TAX LIENS. There are no tax liens upon the assets of the Company or
of any of the Subsidiaries except for statutory liens for current Taxes not
yet due.
(iv) WITHHOLDING TAXES. The Company and each of the Subsidiaries have
complied in all material respects with the provisions of the Code relating
to the withholding of Taxes, as well as similar provisions under any other
Laws, and have, within the time and in the manner prescribed by Law,
withheld and paid over to the proper governmental authorities all amounts
required.
(v) EXTENSIONS OF TIME FOR FILING. Neither the Company nor any of the
Subsidiaries has requested any extension of time within which to file any
Tax Return, which Tax Return has not since been filed.
(vi) WAIVERS OF STATUTE OF LIMITATIONS. Neither the Company nor any of
the Subsidiaries has executed any outstanding waivers or comparable consents
regarding the application of the statute of limitations with respect to any
Taxes or Tax Returns.
(vii) NO DEFICIENCIES. The statute of limitations for the assessment of
any federal income Taxes has expired for all income Tax Returns of the
Company and of each of the Subsidiaries or such income Tax Returns have been
examined by the Internal Revenue Service for all periods. No deficiency for
any income Taxes has been proposed, asserted or assessed against the Company
or any of the Subsidiaries which has not been resolved and paid in full.
There are no deficiencies for state income Taxes which individually, or in
the aggregate, would have a Company Material Adverse Effect.
(viii) AUDIT, ADMINISTRATIVE AND COURT PROCEEDINGS. No audits or other
administrative proceedings or court proceedings are presently pending with
regard to any Taxes or Tax Returns of the Company or any of the
Subsidiaries.
(ix) POWERS OF ATTORNEY. No power of attorney currently in force has
been granted by the Company or any of the Subsidiaries concerning any Taxes
or Tax Returns.
(x) TAX RULINGS. Neither the Company nor any of the Subsidiaries has
received a Tax Ruling or entered into a Closing Agreement with any taxing
authority that would have a Company Material Adverse Effect.
(xi) TAX SHARING AGREEMENTS. Neither the Company nor any Subsidiary is a
party to any agreement relating to allocating or sharing of Taxes which has
not been disclosed on its Tax Returns.
SECTION 3.15. ENVIRONMENTAL MATTERS.
(a) For purposes of this Agreement, the following terms shall have the
following meanings: (i) "Hazardous Substances" means (A) petroleum and petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials and polychlorinated biphenyls, and (B) any
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other chemicals, materials or substances regulated as toxic or hazardous or as a
pollutant, contaminant or waste under any applicable Environmental Law; (ii)
"Environmental Law" means any law, past, present or future and as amended, and
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, or common law, relating to
pollution or protection of the environment, health or safety or natural
resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Substances; and (iii) "Environmental Permit" means any permit, approval,
identification number, license or other authorization required under any
applicable Environmental Law.
(b) Except as disclosed in Section 3.15(b) of the Company Disclosure
Schedule, the Company and the Subsidiaries are and have been in compliance with
all applicable Environmental Laws, have obtained all Environmental Permits and
are in compliance with their requirements, and have resolved all past non-
compliance with Environmental Laws and Environmental Permits without any
pending, on- going or future obligation, cost or liability, except in each case
for the notices set forth in Section 3.15(b) of the Company Disclosure Schedule
or where such non-compliance would not, individually or in the aggregate, have a
Company Material Adverse Effect.
(c) Except as disclosed in Section 3.15(c) of the Company Disclosure
Schedule, neither the Company nor any of the Subsidiaries has (i) placed, held,
located, released, transported or disposed of any Hazardous Substances on,
under, from or at any of the Company's or any of the Subsidiaries' properties or
any other properties, other than in a manner that would not, in all such cases
taken individually or in the aggregate, result in a Company Material Adverse
Effect, (ii) any Knowledge or reason to know of the presence of any Hazardous
Substances on, under, emanating from, or at any of the Company's or any of the
Subsidiaries' properties or any other property but arising from the Company's or
any of the Subsidiaries' current or former properties or operations, other than
in a manner that would not result in a Company Material Adverse Effect, or (iii)
any Knowledge or reason to know, nor has it received any written notice (A) of
any violation of or liability under any Environmental Laws, (B) of the
institution or pendency of any suit, action, claim, proceeding or investigation
by any Governmental Entity or any third party in connection with any such
violation or liability, (C) requiring the response to or remediation of
Hazardous Substances at or arising from any of the Company's or any of the
Subsidiaries' current or former properties or operations or any other
properties, (D) alleging noncompliance by the Company or any of the Subsidiaries
with the terms of any Environmental Permit in any manner reasonably likely to
require material expenditures or to result in material liability or (E)
demanding payment for response to or remediation of Hazardous Substances at or
arising from any of the Company's or any of the Subsidiaries' current or former
properties or operations or any other properties, except in each case for the
notices set forth in Section 3.15(c) of the Company Disclosure Schedule.
(d) Except as disclosed in Section 3.15(d) of the Company Disclosure
Schedule, no Environmental Law imposes any obligation upon the Company or any of
the Subsidiaries arising out of or as a condition to any transaction
contemplated by this Agreement, including any requirement to modify or to
transfer any permit or license, any requirement to file any notice or other
submission with any Governmental Authority, the placement of any notice,
acknowledgement or covenant in any land records, or the modification of or
provision of notice under any agreement, consent order or consent decree. Except
as disclosed in Section 3.15(d) of the Company Disclosure Schedule, no Lien has
been placed upon any of the Company's or the Subsidiaries' properties under any
Environmental Law.
(e) The Company and the Subsidiaries have provided Parent with copies of any
environmental assessment or audit report or other similar studies or analyses
currently in the possession of or available to the Company or any of the
Subsidiaries relating to any real property currently or formerly owned, leased
or occupied by the Company or any of the Subsidiaries.
SECTION 3.16. MATERIAL CONTRACTS; GOVERNMENT CONTRACTS.
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(a) The contracts and agreements listed in Section 3.05 of the Disclosure
Schedule and all other contracts, agreements and arrangements that are material
to the Company and the Subsidiaries or, although not so material, are of unique
value to the Company and the Subsidairies are referred to herein collectively as
the "Material Contracts".
(b) Except as would not, individually or in the aggregate, have a Company
Material Adverse Effect, each Company License and each Material Contract is a
legal, valid and binding agreement, neither the Company nor any of the
Subsidiaries (or to the Knowledge of the Company, any other party thereto) is in
default under any of the Company Licenses or Material Contracts, and none of the
Company Licenses or Material Contracts has been cancelled by the other party
thereto; each Material Contract and Company License is in full force and effect
and no event has occurred which, with the passage of time or the giving of
notice or both, would constitute a default, event of default or other breach by
the Company or applicable Subsidiary party thereto which would entitle the other
party to such Material Contract or Company License to terminate the same or
declare a default or event of default thereunder; the Company and the
Subsidiaries are not in receipt of any claim of default under any such
agreement; the Company or the applicable Subsidiary party to such Material
Contract or Company License maintains good business relationships with the other
party to such agreement. The Company has made available to Parent true and
complete copies of all Company Licenses and all Material Contracts. The Company
is not a party to any contracts or agreements that limit the ability of the
Company or any Subsidiary or, after the Effective Time, Parent or any of its
affiliates, to compete in any line of business or with any person or in any
geographic area or during any period of time, or to solicit any customer or
client.
(c) Section 3.16(c) of the Company Disclosure Schedule contains a complete
list of all material bids, quotations and proposals made by, all contracts and
agreements between, and all commitments or sale or purchase orders by, the
Company or any of the Subsidiaries ("Government Contracts") with or to the
United States government, a foreign government or a department or agency of the
United States government or a foreign government, including, without limitation,
all contracts to supply goods and services, and all subcontracts awarded to the
Company or any of the Subsidiaries.
(d) All of the Government Contracts have been legally awarded and are
binding on the parties thereto and, except as may be disclosed in Section
3.16(d) of the Company Disclosure Schedule or as would not have a Company
Material Adverse Effect, the Company and the Subsidiaries are in compliance in
all material respects with all terms and conditions in Government Contracts,
including all terms and conditions incorporated expressly by reference or by
operation of law therein.
(e) Except as set forth in Section 3.16(e) of the Company Disclosure
Schedule, as of the date of this Agreement, to the Company's Knowledge the
Company and the Subsidiaries have not received any notice, written or, to the
Company's Knowledge, oral, of material performance or administrative
deficiencies relating to or involving any Government Contract, other than
routine contract management interchanges such as deficiency reports, waivers,
technical deficiencies, discrepancies and similar type actions.
(f) Except as set forth in Section 3.16(f) of the Company Disclosure
Schedule, neither the Company, any of the Company's affiliates nor any of their
respective directors, officers or employees is currently debarred or suspended
from participation in the award of Government Contracts or from otherwise
conducting business with the U.S. government or any agency thereof, nor, to the
Company's Knowledge, are there facts or circumstances reasonably likely to form
the basis of a debarment or suspension proceeding.
(g) As of the date of this Agreement, except as set forth in Section 3.16(g)
of the Company Disclosure Schedule or as would not have a Company Material
Adverse Effect, the Company has not received any written notice of any "stop
orders", "cure notices", "show cause notices" or any "terminations for
convenience or default" of any Government Contract and, as at the Closing Date,
the Company shall not have received any such notices under any material
Government Contract.
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(h) Except as set forth in Section 3.16(h) of the Disclosure Schedule, as of
the date of this Agreement, there are no Government Contracts for the sale of
goods or services for which, at the time of the most recent scheduled contract
milestone, the work schedule was delinquent in any respect which could have a
Company Material Adverse Effect.
(i) Except as would not have a Company Material Adverse Effect, as of the
date of this Agreement there is no outstanding bid for a Government Contract for
the sale of goods or services where performance of contractual effort will be
begun prior to contract award without advance funding or customer acknowledgment
that pre-contract costs will be incorporated in the resultant contract nor are
there any existing letter contracts having no defined contract value relating to
or involving Government Contracts where performance will continue while awaiting
additional contractual funding.
(j) As of the date of this Agreement there is no cost type Government
Contract which is material to the Company Government Business with a ceiling,
cap or share ratio, which is or is likely to be exceeded.
(k) The Company's pricing, cost accounting, estimating, material management
and accounting, property and resource planning and procurement systems have been
properly disclosed in all material respects to and, to the extent required by
applicable regulations, approved by the United States government and such
disclosures are in all material respects in compliance with applicable federal
procurement law regulations, including the Cost Principles and Cost Accounting
Standards.
SECTION 3.17. SUPPLIERS. Except as set forth in Section 3.17 of the Company
Disclosure Schedule, neither the Company nor any Subsidiary has received any
notice or has any reason to believe that any significant supplier will not sell
raw materials, supplies, merchandise and other goods to the Company or any
Subsidiary at any time after the Effective Time on terms and conditions
substantially similar to those used in its current sales to the Company and the
Subsidiaries, subject only to general and customary price increases, unless
comparable raw materials, supplies, merchandise or other goods are readily
available from other sources on comparable terms and conditions.
SECTION 3.18. TAX TREATMENT. Neither the Company nor, to the Company's
Knowledge, any of its affiliates has taken, agreed to take, or will take any
action that would prevent the Merger from constituting a transaction qualifying
under Section 368(a) of the Code. Neither the Company nor, to the Company's
Knowledge, any of its affiliates or agents is aware of any agreement, plan or
other circumstance that would prevent the Merger from qualifying under Section
368(a) of the Code, and to the Company's Knowledge, the Merger will so qualify.
SECTION 3.19. INSURANCE. All material fire and casualty, general liability,
business interruption, product liability, and sprinkler and water damage
insurance policies maintained by the Company or any of its Subsidiaries are with
reputable insurance carriers, provide full and adequate coverage for all normal
risks incident to the business of the Company and the Subsidiaries and their
respective properties and assets, and are in character and amount at least
equivalent to that carried by persons engaged in similar businesses and subject
to the same or similar perils or hazards, except for any such failures to
maintain insurance policies that, individually or in the aggregate, would not
have a Company Material Adverse Effect. The Company and each Subsidiary have
made any and all payments required to maintain such policies in full force and
effect. Except as set forth in Section 3.19 of the Company Disclosure Schedule,
neither the Company nor any Subsidiary has received notice of default under any
such policy, and has not received written notice or, to the Knowledge of the
Company, oral notice of any pending or threatened termination or cancellation,
coverage limitation or reduction or material premium increase with respect to
such policy.
SECTION 3.20. APPROVAL OF COMPANY BOARD AND INDEPENDENT DIRECTORS. The Board
of Directors of the Company has approved unanimously the execution and delivery
of this Agreement and the Option and Voting Agreement for purposes of Section
203 of Delaware Law and for purposes of Section 7 of Article VII of the
Company's By-Laws. A separate resolution approving the execution and delivery of
this
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Agreement and the Option and Voting Agreement for purposes of Section 203 of
Delaware Law and for purposes of Section 7 of Article VII of the Company's
By-Laws has been adopted unanimously by the independent directors of the Company
pursuant to a separate vote. A separate resolution approving the execution and
delivery of the Consulting Agreement has been adopted unanimously by the
independent directors of the Company pursuant to a separate vote.
SECTION 3.21. STOCKHOLDER VOTE REQUIRED. The affirmative vote of the holders
of a majority of the outstanding shares of Company Class A Stock is the only
vote of the holders of any class or series of capital stock of the Company
necessary to approve the Merger.
SECTION 3.22. ACCURACY OF INFORMATION. Neither this Agreement nor any other
document provided by the Company or the Subsidiaries or any of their respective
employees or agents to Parent in connection with the transactions contemplated
herein contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained therein not misleading.
SECTION 3.23. TRANSACTIONS WITH AFFILIATES. (a) For purposes of this Section
3.23, the term "Affiliated Person" means (i) any holder of 2% or more of the
Company Class A Stock, (ii) any director, officer or senior executive of the
Company or any Subsidiary, (iii) any person, firm or corporation that directly
or indirectly controls, is controlled by, or is under common control with, any
of the Company or any Subsidiary or (iv) any member of the immediate family or
any of such persons.
(b) Except as set forth in Section 3.23(b) of the Company Disclosure
Schedule or in the Company SEC Reports, since September 30, 1993, the Company
and the Subsidiaries have not, in the ordinary course of business or otherwise,
(i) purchased, leased or otherwise acquired any material property or assets or
obtained any material services from, (ii) sold, leased or otherwise disposed of
any material property or assets or provided any material services to (except
with respect to remuneration for services rendered in the ordinary course of
business as director, officer or employee of the Company or any Subsidiary),
(iii) entered into or modified in any manner any contract with, or (iv) borrowed
any money from, or made or forgiven any loan or other advance (other than
expenses or similar advances made in the ordinary course of business) to, any
Affiliated Person.
(c) Except as set forth in Section 3.23(c) of the Company Disclosure
Schedule or in the Company SEC Reports, (i) the contracts of the Company and the
Subsidiaries do not include any material obligation or commitment between the
Company or any Subsidiary and any Affiliated Person, (ii) the assets of the
Company or any Subsidiary do not include any receivable or other obligation or
commitment from an Affiliated Person to the Company or any Subsidiary and (iii)
the liabilities of the Company and the Subsidiaries do not include any payable
or other obligation or commitment from the Company or any Subsidiary to any
Affiliated Person.
(d) To the Knowledge of the Company and except as set forth in Section
3.23(d) of the Company Disclosure Schedule or in the Company SEC Reports, no
Affiliated Person of any of the Company or any Subsidiary is a party to any
contract with any customer or supplier of the Company or any Subsidiary that
affects in any material manner the business, financial condition or results of
operation of the Company or any Subsidiary.
SECTION 3.24. OPINION OF FINANCIAL ADVISOR. The Company has received the
opinion of Salomon Brothers Inc (the "Company Financial Advisor"), to the effect
that, as of the date hereof, the Merger Consideration is fair to the Company
stockholders from a financial point of view.
SECTION 3.25. BROKERS. No broker, finder or investment banker (other than
the Company Financial Advisor) is entitled to any brokerage, finder's or other
fee or commission in connection with the Merger based upon arrangements made by
or on behalf of the Company. The Company has heretofore furnished to Parent a
complete and correct copy of all agreements between the Company and the Company
Financial Advisor pursuant to which such firm would be entitled to any payment
relating to the Merger.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
Except as specifically disclosed in Parent SEC Reports (as hereinafter
defined) filed subsequent to December 31, 1996, Parent and Merger Sub hereby,
jointly and severally, represent and warrant to the Company that:
SECTION 4.01. ORGANIZATION AND QUALIFICATION; SUBSIDIARIES. Each of Parent
and Merger Sub is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has the
requisite power and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its business as it is now being
conducted. Each of Parent and Merger Sub is duly qualified or licensed as a
foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of the properties owned, leased or operated by
it or the nature of its business makes such qualification or licensing
necessary, except for such failures to be so qualified or licensed and in good
standing that, individually or in the aggregate, would not have a Parent
Material Adverse Effect. The term "Parent Material Adverse Effect" means any
circumstances, change in, or effect on, Parent, when taken as a consolidated
whole, which is, or could reasonably be expected to in the future be, materially
adverse to the operations, assets or liabilities, employee relationships,
customer or supplier relationships, earnings or results of operations, financial
projections or forecasts, or the business prospects and condition (financial or
otherwise), of Parent taken as a consolidated whole.
SECTION 4.02. CERTIFICATE OF INCORPORATION AND BY-LAWS. Parent has
heretofore furnished to the Company a complete and correct copy of the
Certificate of Incorporation and the By-laws, each as amended to date, of Parent
and Merger Sub. Such Certificates of Incorporation and By-laws are in full force
and effect. Neither Parent nor Merger Sub is in violation of any provision of
its respective Certificate of Incorporation or By-laws.
SECTION 4.03. PARENT COMMON STOCK TO BE ISSUED IN THE MERGER. The shares of
Parent Common Stock to be issued pursuant to the Merger will be duly authorized,
validly issued, fully paid and nonassessable and not subject to preemptive
rights created by statute, Parent's Certificate of Incorporation or By-laws or
any agreement to which Parent is a party or by which Parent is bound and will,
when issued, be registered under the Securities Act and the Exchange Act and
registered or exempt from registration under applicable Blue Sky Laws.
SECTION 4.04. AUTHORITY RELATIVE TO THIS AGREEMENT. Each of Parent and
Merger Sub has all necessary corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the Merger. The execution and delivery of this Agreement by Parent and Merger
Sub and the consummation by Parent and Merger Sub of the Merger have been duly
and validly authorized by all necessary corporate action and no other corporate
proceedings on the part of Parent or Merger Sub are necessary to authorize this
Agreement or to consummate the Merger (other than, with respect to the Merger,
the filing and recordation of appropriate merger documents as required by
Delaware Law). This Agreement has been duly and validly executed and delivered
by Parent and Merger Sub and, assuming the due authorization, execution and
delivery by the Company, constitutes a legal, valid and binding obligation of
each of Parent and Merger Sub enforceable against each of Parent and Merger Sub
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
SECTION 4.05. NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement by Parent and Merger Sub do
not, and the performance of this Agreement by Parent and Merger Sub will not,
(i) conflict with or violate the Certificate of Incorporation or By-laws of
Parent or Merger Sub, (ii) conflict with or violate any Law
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applicable to Parent or Merger Sub or by which any property or asset of Parent
or Merger Sub is bound or affected, except for such conflicts or violations
which would not, individually or in the aggregate, have a Parent Material
Adverse Effect, (iii) prevent or materially delay the consummation of the Merger
or (iv) result in any breach of or constitute a default (or an event which with
notice or lapse of time or both would become a default) under any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Parent or Merger Sub is a party or by
which Parent or Merger Sub or any property or asset of either of them is bound
or affected, except for any such breaches or defaults which, individually or in
the aggregate, would not have a Parent Material Adverse Effect.
(b) The execution and delivery of this Agreement by Parent and Merger Sub do
not, and the performance of this Agreement by Parent and Merger Sub will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic, foreign or
supranational, except (i) for applicable requirements, if any, of the Exchange
Act, the Securities Act, Blue Sky Laws, state takeover laws, the HSR Act, and
the filing and recordation of appropriate merger documents as required by
Delaware Law and the rules of the NYSE, and (ii) where failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, is not reasonably likely to prevent or materially delay
consummation of the Merger, and would not, individually or in the aggregate,
have a Parent Material Adverse Effect.
SECTION 4.06. SEC FILINGS; FINANCIAL STATEMENTS.
(a) Parent has filed all forms, reports and documents required to be filed
by it with the SEC since January 1, 1994 (collectively, the "Parent SEC
Reports"). The Parent SEC Reports (i) were prepared in accordance with the
requirements of the Securities Act and the Exchange Act, as the case may be, and
the rules and regulations thereunder, (ii) did not at the time they were filed
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading and (iii) did not at the time they were filed omit any documents
required to be filed as exhibits thereto.
(b) Each of the consolidated financial statements (including, in each case,
any notes thereto) contained in the Parent SEC Reports was prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto) and each fairly presented the consolidated
financial position, results of operations and cash flows of Parent and its
consolidated subsidiaries as at the respective dates thereof and for the
respective periods indicated therein in accordance with United States generally
accepted accounting principles (subject, in the case of unaudited statements, to
normal and recurring year-end adjustments that were not and are not expected,
individually or in the aggregate, to have a Parent Material Adverse Effect).
SECTION 4.07. ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31, 1996,
except as disclosed in any Parent SEC Report filed since December 31, 1996,
there has not been any event or events having, or reasonably likely to have,
individually or in the aggregate, a Parent Material Adverse Effect.
SECTION 4.08. BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the Merger
based upon arrangements made by or on behalf of Parent or Merger Sub.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.01. CONDUCT OF BUSINESS BY THE COMPANY PENDING THE MERGER. The
Company covenants and agrees that, between the date of this Agreement and the
Effective Time, except as set forth in Section 5.01 of the Company Disclosure
Schedule or as otherwise expressly provided for in this Agreement, unless
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Parent shall otherwise agree (which agreement shall not be unreasonably withheld
or delayed) in writing, the Company Businesses shall be conducted only in, and
the Company and the Subsidiaries shall not take any action except in, the
ordinary course of business and in a manner consistent in all material respects
with past practice; and the Company shall use its best efforts to preserve
intact its business organization, to keep available the services of the current
officers, employees and consultants of the Company and the Subsidiaries and to
preserve the current relationships of the Company and the Subsidiaries with
customers, distributors, suppliers, licensors, licensees, contractors and other
persons with which the Company or any Subsidiary has significant business
relations. By way of amplification and not limitation, except as contemplated by
this Agreement, or as set forth in Section 5.01 of the Company Disclosure
Schedule, neither the Company nor any of the Subsidiaries shall, between the
date of this Agreement and the Effective Time, directly or indirectly do, or
propose to do, any of the following without the prior written consent of Parent,
which consent shall not be unreasonably withheld or delayed:
(a) amend or otherwise change its Certificate of Incorporation or
By-laws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant or encumber, or authorize the
issuance, sale, pledge, disposition, grant or encumbrance of, (i) any shares
of capital stock of any class of the Company or any Subsidiary, or any
options, warrants, convertible securities or other rights of any kind to
acquire any shares of such capital stock, or any other ownership interest
(including, without limitation, any phantom interest), of the Company or any
Subsidiary or (ii) any assets of the Company or any Subsidiary, except for
sales in the ordinary course of business and in a manner consistent in all
material respects with past practice and other asset sales for consideration
or having a fair market value aggregating not more than $1,000,000;
(c) other than regularly scheduled periodic cash dividends in amounts
not in excess of those previously declared, set aside, make or pay any
dividend or other distribution, payable in cash, stock, property or
otherwise, with respect to any of its capital stock, except that a United
States Subsidiary may, after consultation with Parent, declare and pay a
dividend to the Company;
(d) reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its capital stock;
(e) except as contemplated by the UNC Merger Agreement, (i) acquire
(including, without limitation, by merger, consolidation or acquisition of
stock or assets) any corporation, partnership, limited liability company,
other business organization or any division thereof, or any material amount
of assets; (ii) enter into any contract or agreement that, if entered into
prior to the date of this Agreement, would have been required to be
disclosed as a Material Contract, other than in the ordinary course of
business, consistent in all material respects with past practice; or (iii)
enter into or amend any Material Contract with respect to any matter set
forth in this subsection (e);
(f) (i) incur any indebtedness for borrowed money or issue any debt
securities or assume, guarantee or endorse, or otherwise as an accommodation
become responsible for, the obligations of any person, or make any loans or
advances, except in the ordinary course of business and consistent in all
material respects with past practice and in an amount not in excess of
$250,000; (ii) authorize capital expenditures which are, in the aggregate,
in excess of $1,000,000 for the Company and the Subsidiaries taken as a
whole; or (iii) enter into or amend any contract, agreement, commitment or
arrangement with respect to any matter set forth in this subsection (f);
(g) increase (except in the ordinary course of business and consistent
in all material respects with past practice) the compensation payable or to
become payable to its officers or employees generally or to any employee
with an annual salary in excess of $100,000, or grant any bonus, severance
or termination pay to, or enter into any employment or severance agreement
with any director, officer or other employee of the Company or any
Subsidiary, or establish, adopt, enter into
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or amend any collective bargaining, bonus, profit sharing, thrift,
compensation, stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan, agreement,
trust, fund, policy or arrangement for the benefit of any director, officer
or employee; PROVIDED, HOWEVER, that the Company and the executive officers
identified in Exhibit 5.01(g) hereto may enter into agreements in a form
substantially identical to, and in the amounts identified on, Exhibit
5.01(g) hereto;
(h) acquire, sell, lease or dispose of any Real Estate or other material
assets, other than sales or leases of fixed assets (other than Real Estate)
or sales of inventory, in each case, in the ordinary course of business;
(i) accelerate the collection of accounts receivable, delay the payment
of accounts payable or take any action with respect to credit, collection
and fiscal policies and practices, other than in the ordinary course of
business and in a manner consistent with past practice with respect to
accounting policies or practices;
(j) make any material Tax election or settle or compromise any material
federal, state, local or foreign income Tax liability;
(k) take any action that would or is reasonably likely to result in any
of the covenants and agreements set forth in this Article V or in Article VI
or any of the conditions set forth in Article VII not being satisfied as of
the Closing Date;
(l) take any action, other than reasonable and usual actions in the
ordinary course of business and consistent in all material respects with
past practice, with respect to accounting policies or procedures (including,
without limitation, procedures with respect to the payment of accounts
payable and collection of accounts receivable);
(m) knowingly take any action that could reasonably be expected to
prevent the Merger from constituting a transaction qualifying under Section
368(a) of the Code; or
(n) except for the payment of reasonable professional fees relating to
the Merger, the UNC Merger, or otherwise and reasonable fees to financial
advisors (which financial advisory fees have heretofore been disclosed or
are otherwise acceptable, to Parent), pay, discharge or satisfy any claim,
liability or obligation (absolute, accrued, asserted or unasserted,
contingent or otherwise) in an amount in excess of $500,000 in the
aggregate, other than the payment, discharge or satisfaction, in the
ordinary course of business and consistent in all material respects with
past practice, of liabilities reflected or reserved against in the Company
1996 Balance Sheet or subsequently incurred in the ordinary course of
business and consistent in all material respects with past practice.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. REGISTRATION STATEMENT; PROXY STATEMENT.
(a) As promptly as practicable after the execution of this Agreement, the
Company and Parent shall prepare and file with the SEC preliminary proxy
materials relating to the meeting of the holders of shares of Company Class A
Stock to be held in connection with the Merger (together with any amendments
thereof or supplements thereto, the "Proxy Statement"). As promptly as
practicable after comments are received from the SEC on the preliminary proxy
materials and after the furnishing by the Company and Parent of all information
required to be contained therein, the Company and Parent shall prepare and file
with the SEC a registration statement on Form S-4 (together with all amendments
thereto, the "Registration Statement"), in which the Proxy Statement shall be
included as a prospectus in connection with the registration under the
Securities Act of the shares of Parent Common Stock to be issued to the holders
of shares of Company Common Stock pursuant to the Merger. Parent shall use all
reasonable efforts to cause
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the Registration Statement to become effective as promptly as practicable, and
shall take all action required under any applicable federal or state securities
laws in connection with the issuance of shares of Parent Common Stock pursuant
to the Merger. The Company shall furnish all information concerning the Company
as Parent may reasonably request in connection with such actions and the
preparation of the Registration Statement. As promptly as practicable after the
Registration Statement shall have become effective, the Company shall mail the
Proxy Statement to its stockholders. The Proxy Statement shall include the
unanimous recommendation of the Board of Directors of the Company in favor of
the Merger, unless otherwise necessary due to the applicable fiduciary duties of
the directors of the Company, as determined by such directors in good faith
after consultation with independent legal counsel (who may be the Company's
regularly engaged independent legal counsel).
(b) The Registration Statement and the information supplied by Parent for
inclusion in the Proxy Statement shall not, at (i) the time the Registration
Statement is declared effective by the SEC; (ii) the time the Proxy Statement
(or any amendment thereof or supplement thereto) is first mailed to the holders
of shares of Company Class A Stock; (iii) the time of the Stockholders' Meeting
(as defined in Section 6.02); and (iv) the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. If at any time prior to the Effective Time any event or circumstance
relating to Parent or any of its subsidiaries, or their respective officers or
directors, is discovered by Parent which should be set forth in an amendment or
a supplement to the Registration Statement or Proxy Statement, Parent shall
promptly inform the Company, and the Company shall make appropriate amendments
or supplements to the Proxy Statement. The Proxy Statement shall comply in all
material respects as to form and substance with the requirements of the
Securities Act, the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing, the Company makes no representation or warranty
with respect to any information supplied by Parent or Merger Sub which is
contained in, or furnished in connection with the preparation of, any of the
foregoing documents.
(c) The Proxy Statement and the information supplied by the Company for
inclusion in the Registration Statement shall not, at (i) the time the
Registration Statement is declared effective by the SEC; (ii) the time the Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed to
the holders of shares of Company Class A Stock; (iii) the time of the
Stockholders' Meeting; and (iv) the Effective Time, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading. If
at any time prior to the Effective Time any event or circumstance relating to
the Company or any of the Subsidiaries, or their respective officers or
directors, is discovered by the Company which should be set forth in an
amendment or a supplement to the Registration Statement or Proxy Statement, the
Company shall promptly inform Parent. The Registration Statement and the Proxy
Statement shall comply in all material respects as to form and substance with
the requirements of the Securities Act, the Exchange Act and the rules and
regulations thereunder. Notwithstanding the foregoing, Parent and Merger Sub
make no representations or warranties with respect to any information supplied
by the Company which is contained in, or furnished in connection with the
preparation of, any of the foregoing documents.
SECTION 6.02. STOCKHOLDERS' MEETING.
(a) Subject to the provisions of Section 6.05 and Section 8.01(g), the
Company shall, consistent with applicable law, call and hold a meeting of the
holders of shares of Company Class A Stock (the "Stockholders' Meeting") as
promptly as practicable for the purpose of voting upon the approval and adoption
of this Agreement and the Company shall use its reasonable best efforts to hold
the Stockholders' Meeting as soon as practicable after the date on which the
Registration Statement becomes effective. The Company shall solicit from the
holders of shares of Company Class A Stock proxies in favor of the approval and
adoption of the Merger, and shall take all other action necessary or advisable
to secure the vote or consent of such holders required by Delaware Law.
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(b) Parent shall vote (or consent with respect to) any shares of Company
Class A Stock beneficially owned by it, or with respect to which it has the
power (by agreement, proxy or otherwise) or cause to be voted (or to provide a
consent), in favor of the approval and adoption of this Agreement at any meeting
of the stockholders of the Company at which this Agreement shall be submitted
for approval and adoption and at all adjournments or postponements thereof (or,
if applicable, by any action of the stockholders of the Company by consent in
lieu of a meeting).
SECTION 6.03. APPROPRIATE ACTION; CONSENTS; FILINGS.
(a) The Company and Parent shall use their reasonable efforts to (i) take,
or cause to be taken, all appropriate action and do, or cause to be done, all
things necessary, proper or advisable under applicable Law or otherwise to
consummate and make effective the Merger as promptly as practicable, (ii) obtain
expeditiously from any Governmental Authorities any consents, licenses, permits,
waivers, approvals, authorizations or orders required to be obtained or made by
Parent or the Company or any of their Subsidiaries in connection with the
authorization, execution and delivery of this Agreement and the consummation of
the Merger, and (iii) as promptly as practicable, make all necessary filings,
and thereafter make any other required submissions, with respect to this
Agreement and the Merger required under (A) the Securities Act and the Exchange
Act, and any other applicable federal or state securities Laws, (B) the HSR Act
and any related governmental request thereunder and (C) any other applicable
Law; PROVIDED that Parent and the Company shall cooperate with each other in
connection with the making of all such filings, including providing copies of
all such documents to the non-filing party and its advisors prior to filing and,
if requested, accepting all reasonable additions, deletions or changes suggested
by the other party in connection therewith. From the date of this Agreement
until the Effective Time, each party shall promptly notify the other party in
writing of any pending or, to the knowledge of the first party, threatened
action, proceeding or investigation by any Governmental Authority or any other
person (i) challenging or seeking material damages in connection with the Merger
or the conversion of the Company Common into Parent Common Stock or cash
pursuant to the Merger or (ii) seeking to restrain or prohibit the consummation
of the Merger or otherwise limit the right of Parent or Parent's subsidiaries to
own or operate all or any portion of the businesses or assets of the Company or
its Subsidiaries, which in either case would have a Company Material Adverse
Effect prior to or after the Effective Time, or a Parent Material Adverse Effect
after the Effective Time.
(b) The Company and Parent shall furnish to each other all information
required for any application or other filing to be made pursuant to the rules
and regulations of any applicable Law (including all information required to be
included in the Proxy Statement and the Registration Statement) in connection
with the transactions contemplated by this Agreement.
(c) (i) Each of Parent and the Company shall give (or shall cause its
respective subsidiaries to give) any notices to third parties and use, and cause
its respective subsidiaries to use, their reasonable efforts to obtain any third
party consents, (A) necessary, proper or advisable to consummate the
transactions contemplated in this Agreement, (B) disclosed or required to be
disclosed in the Company Disclosure Schedule or (C) required to prevent a
Company Material Adverse Effect from occurring prior to or after the Effective
Time or a Parent Material Adverse Effect from occurring after the Effective
Time; PROVIDED, HOWEVER, that the failure by the Company to obtain any one or
more of such third party consents (including those disclosed in Section 3.05(a)
and Section 3.05(b) of the Company Disclosure Schedule) shall not constitute a
condition precedent to Parent's obligation to consummate the Merger pursuant to
the terms of this Agreement or entitle Parent to delay the Effective Time.
(ii) In the event that Parent or the Company shall fail to obtain any third
party consent described in subsection (c)(i) above, it shall use its reasonable
efforts, and shall take any such actions reasonably requested by the other
party, to minimize any adverse effect upon the Company and Parent, their
respective subsidiaries, and their respective businesses resulting, or which
could reasonably be expected to result after the Effective Time, from the
failure to obtain such consent.
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SECTION 6.04. ACCESS TO INFORMATION; CONFIDENTIALITY.
(a) The parties shall comply with, and shall cause their respective
Representatives (as defined below) to comply with, to the extent permitted by
applicable Law, all of their respective obligations under the Confidentiality
Agreement dated March 4, 1997 (the "Confidentiality Agreement") between the
Company and Parent.
(b) Subject to the Confidentiality Agreement, from the date hereof to the
Effective Time, the Company will provide to Parent (and its officers, directors,
employees, accountants, consultants, legal counsel, agents and other
representatives, collectively, "Representatives") access to all information and
documents which Parent may reasonably request regarding the business, assets,
liabilities, employees and other aspects of the Company.
(c) From the date hereof to the Effective Time, the Company shall: (i)
provide to Parent and its Representatives access at reasonable times upon prior
notice to the officers, employees, agents, properties, offices and other
facilities of the Company and its Subsidiaries and to the books and records
thereof and (ii) furnish promptly such information concerning the business,
properties, contracts, assets, liabilities, personnel and other aspects of the
Company and its Subsidiaries as Parent or its Representatives may reasonably
request.
(d) No investigation by Parent or Merger Sub, whether prior to the execution
of this Agreement or pursuant to this Section 6.04, shall affect any
representation or warranty in this Agreement of any party hereto or any
condition to the obligations of the parties hereto.
SECTION 6.05. NO SOLICITATION OF COMPETING TRANSACTIONS. (a) Neither the
Company nor any Subsidiary shall, directly or indirectly, through any officer,
director, agent or otherwise, initiate, solicit or knowingly encourage
(including by way of furnishing non-public information or assistance), or take
any other action to facilitate knowingly, any inquiries or the making of any
proposal that constitutes, or may reasonably be expected to lead to, any
Competing Transaction (as defined below), or enter into or maintain or continue
discussions or negotiate with any person or entity in furtherance of such
inquiries or to obtain a Competing Transaction, or agree to or endorse any
Competing Transaction, or authorize or permit any of the officers, directors or
employees of the Company or any Subsidiary or any investment banker, financial
advisor, attorney, accountant or other agent or representative of the Company or
any Subsidiary to take any such action, and the Company shall notify Parent
orally (within three business days) and in writing (as promptly as practicable)
of all of the relevant details relating to any inquiry or proposal which the
Company or any Subsidiary or any such officer, director, employee, investment
banker, financial advisor, attorney, accountant or other agent or representative
may receive relating to any of such matters and which the Company and any of its
officers or directors has knowledge of, and if such inquiry or proposal is in
writing, the Company shall deliver to Parent a copy of such inquiry or proposal;
PROVIDED, HOWEVER, that nothing contained in this Section 6.05 shall prohibit
the Company or its Board of Directors from (i) complying with Rule 14e-2
promulgated under the Exchange Act with regard to a tender or exchange offer,
(ii) referring any third party to this Section 6.05 or making a copy of this
Section 6.05 available to any third party, or (iii) failing to make or
withdrawing or modifying its recommendation referred to in Section 6.01(a)
following the making of a proposal that constitutes, or may reasonably be
expected to lead to, a Competing Transaction if the Board of Directors of the
Company, after consultation with independent legal counsel (who may be the
Company's regularly engaged independent legal counsel), determines in good faith
that such action is necessary for the directors of the Company to comply with
their fiduciary duties to the Company or its stockholders under applicable law,
or (iv) terminating this Agreement and the transactions contemplated hereby in
accordance with Section 8.01(g) hereof. The Company agrees not to release any
third party from, or waive any provision of, any confidentiality or standstill
agreement to which the Company is a party. For purposes of this Agreement,
"Competing Transaction" shall mean any of the following involving the Company or
any Subsidiary: (i) any merger, consolidation, share exchange, recapitalization,
business combination, or other similar transaction; (ii) any
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sale, lease, exchange, mortgage, pledge, transfer or other disposition of 15% or
more of the assets of the Company and the Subsidiaries, taken as a whole, in a
single transaction or series of related transactions; (iii) any tender offer or
exchange offer for 15% or more of the shares of Company Class A Stock or Company
Class B Stock or the filing of a registration statement under the Securities Act
in connection therewith; (iv) any person having acquired beneficial ownership or
the right to acquire beneficial ownership of, or any "group" (as such term is
defined under Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder) having been formed which beneficially owns or has the
right to acquire beneficial ownership of, 15% or more of the shares of Company
Class A Stock or Company Class B Stock; or (v) any public announcement of a
proposal, plan or intention to do any of the foregoing or any agreement to
engage in any of the foregoing.
(b) Provided that there has been no breach of Section 6.05(a) which
materially and adversely affects the rights of Parent contained herein or in the
Option and Voting Agreement, if the Board of Directors of the Company determines
that it has received a Superior Proposal (as defined below), the Board of
Directors may cause the Company to give to Parent a notice (a "Superior Proposal
Notice") of its intent to accept such Superior Proposal and the giving of such
notice shall not be a breach of this Agreement. The Board of Directos of the
Company may withdraw such Superior Proposal Notice and, following such
withdrawal, may deliver to Parent another Superior Proposal Notice provided that
such subsequent notice relates to a different proposal. A "Superior Proposal"
shall mean any proposal made by a third party to acquire, directly or
indirectly, including pursuant to a merger, consolidation, share exchange,
recapitalization, business combination, liquidation, dissolution or other
similar transaction, for consideration consisting of cash and/or securities,
more than 50% of the aggregate voting power or capital stock of the Company then
outstanding or all or substantially all the assets of the Company and otherwise
on terms and conditions to closing which the Board of Directors of the Company
determines in its good faith judgment (based on the advice of a financial
advisor of nationally recognized reputation and independent counsel) to be more
favorable to the Company's stockholders than the Merger and for which financing,
to the extent required, is then committed or which, in the good faith judgment
of the Board of Directors of the Company, is reasonably capable of being
obtained by such third party.
SECTION 6.06. INDEMNIFICATION AND INSURANCE.
(a) Parent and the Surviving Corporation agree that, except as may be
limited by applicable Laws, for seven (7) years from and after the Effective
Time, the indemnification obligations set forth in the Company's Certificate of
Incorporation and the Company's By-Laws, in each case as of the date of this
Agreement, shall survive the Merger (and, prior to the Effective Time, Parent
shall cause the Certificate of Incorporation and By-laws of Merger Sub to
include such provisions) and shall not be amended, repealed or otherwise
modified after the Effective Time in any manner that would adversely affect the
rights thereunder of the individuals who on or at any time prior to the
Effective Time were entitled to indemnification thereunder with respect to
matters occurring prior to the Effective Time.
(b) The Surviving Corporation shall maintain in effect, for three (3) years
from and after the Effective Time, directors' and officers' liability insurance
policies covering the persons who are currently covered in their capacities as
such directors and officers by the Company's current directors' and officers'
policies and on terms not materially less favorable than the existing insurance
coverage with respect to matters occurring prior to the Effective Time.
(c) Parent hereby agrees that, effective upon the consummation of the
Merger, it will guarantee the Surviving Corporation's obligations under Section
6.06(a) and (b) of this Agreement and under Section 6.9(c) of the UNC Merger
Agreement.
(d) Parent hereby agrees that, effective upon the consummation of the Merger
and the UNC Merger, it will guarantee the obligations of the surviving
corporation of the UNC Merger under Sections 6.9(a) and (b) of the UNC Merger
Agreement.
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(e) In addition to, and not in lieu of the foregoing, Parent shall
indemnify, defend and hold harmless all officers and directors of the Company
(the "Company Indemnified Parties") and all officers and directors of UNC (the
"UNC Indemnified Parties" and, together with the Company Indemnified Parties,
the "Indemnified Parties") to the fullest extent permitted by Delaware Law and
in the Certificate of Incorporation and By-laws of the Company and UNC, as
currently in effect, from and against all liabilities, costs, expenses and
claims (including without limitation reasonable legal fees and disbursements,
which shall be paid, reimbursed or advanced by Parent in a manner consistent
with applicable provisions of Parent's By-laws) related to the Merger and other
transactions contemplated hereby, which may be asserted against the Indemnified
Parties from and after the date of this Agreement, other than liabilities
resulting from a breach of the fiduciary duties of any of such Indemnified
Parties; provided, however, that (i) Parent's obligations to the Company
Indemnified Parties under this Section 6.06(e) shall not be effective until
consummation of the Merger and (ii) Parent's obligations to the UNC Indemnified
Parties shall not be effective until the consummation of both the UNC Merger and
the Merger.
SECTION 6.07. NOTIFICATION OF CERTAIN MATTERS. From and after the date of
this Agreement until the Effective Time, each party hereto shall promptly notify
the other parties hereto of (a) the occurrence, or non-occurrence, of any event
the occurrence or non-occurrence of which would be reasonably likely to cause
any condition to the obligations of any party to effect the Merger or the UNC
Merger not to be satisfied, (b) the failure of the Company or Parent, as the
case may be, to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it pursuant to this Agreement which would be
reasonably likely to result in any condition to the obligations of any party to
effect the Merger not to be satisfied, or (c) the failure of UNC to comply with
or satisfy any covenant, condition or agreement to be complied with or satisfied
by it pursuant to the UNC Merger Agreement (as defined below) which would be
reasonably likely to result in any condition to the obligations of the Company
to effect the transactions contemplated by the UNC Merger Agreement not to be
satisfied; provided, however, that the delivery of any notice pursuant to this
Section 6.07 shall not be deemed to be an amendment of this Agreement or any
Section in the Company Disclosure Schedule and shall not cure any breach of any
representation or warranty requiring disclosure of such matter prior to the date
of this Agreement. No delivery of any notice pursuant to this Section 6.07 shall
limit or affect the remedies available hereunder to the party receiving such
notice, including the rights of Parent under Section 7.02(a) and those of the
Company under Section 7.03(a), in the event that a representation or warranty
made by the Company or Parent herein shall not be true and correct (giving
effect to any standards of materiality set forth in such Sections) as of the
date hereof or as of the date when made (if a different date) and as of the
Effective Time.
SECTION 6.08. STOCK EXCHANGE LISTING. Parent shall as promptly as reasonably
practicable prepare and submit to the NYSE a listing application covering the
shares of Parent Common Stock to be issued in the Merger and shall use its
reasonable efforts to cause such shares to be approved for listing on the NYSE
prior to the Effective Time.
SECTION 6.09. PUBLIC ANNOUNCEMENTS. Parent and the Company shall consult
with each other before issuing any press release or otherwise making any public
statements with respect to this Agreement or any transaction contemplated
hereby. Parent and the Company shall not issue any such press release or make
any such public statement without the prior consent of the other (which consent
shall not be unreasonably withheld), except as may be required by Law or any
listing agreement with the NYSE, the NASD or any national securities exchange to
which Parent or the Company is a party. The parties have agreed on the text of a
joint press release by which Parent and the Company will announce the execution
of this Agreement.
SECTION 6.10. PLAN OF REORGANIZATION. This Agreement is intended to
constitute a "plan of reorganization" within the meaning of Section 1.368-2(g)
of the income tax regulations promulgated under the Code.
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SECTION 6.11. AFFILIATES; TAX TREATMENT. Within thirty (30) days from the
date hereof, the Company shall obtain from any person who may be deemed to be an
affiliate, as of the date of this Agreement, of the Company under Rule 145 of
the Securities Act, a written agreement substantially in the appropriate form
attached hereto as Exhibit 6.11. The Company shall use its reasonable best
efforts to cause the Merger to qualify, and shall not take any actions which
could prevent the Merger from qualifying, as a reorganization qualifying under
the provisions of Section 368(a) of the Code.
SECTION 6.12. COMPANY EMPLOYEE STOCK PURCHASE PLAN. The Company shall take
all actions necessary pursuant to the terms of the ESPP in order to shorten the
offering period under such plan which includes the Effective Time (the "Current
Offering") such that a new purchase date shall occur prior to the Effective Time
and shares of Company Class B Stock shall be purchased by ESPP participants
prior to the Effective Time. The Current Offering shall expire immediately
following such new purchase date, and the ESPP shall terminate immediately prior
to the Effective Time. Subsequent to such new purchase date, the Company shall
take no action pursuant to the terms of the ESPP to commence any new offering
period.
SECTION 6.13. CONSULTING AGREEMENT. Parent and Eugene P. Conese, Sr. have
entered into a Consulting Agreement as of the date hereof in the form of Exhibit
6.13 hereto, which agreement shall become effective as of the Effective Time.
SECTION 6.14. SUPPLEMENTAL INDENTURE. Immediately after the Effective time,
the Surviving Corporation will assume the Company's obligations under the
Indenture, dated as of June 10, 1996, among the Company, the Subsidiaries and
American Stock Transfer and Trust Company ("American Stock Transfer and Trust")
and, prior to the Effective Time, the Company will deliver such certificates,
opinions, agreements and other instruments as Parent or American Stock Transfer
and Trust may request in connection with the assumption of the Company's
obligations under such Indenture.
SECTION 6.15. UNC MERGER AGREEMENT. Simultaneously with the execution and
delivery of this Agreement, the Company and UNC Incorporated, a Delaware
corporation ("UNC"), have entered into an Amended and Restated Merger Agreement,
dated the date hereof (the "UNC Merger Agreement"), pursuant to which the
Company intends, on the terms and conditions set forth therein, to acquire UNC
pursuant to a merger (the "UNC Merger"). Unless this Agreement shall have been
terminated in accordance with its terms by Company or Parent, the Company will
not amend, modify, give any consent or grant any waiver under, nor will the
Company finally determine that all conditions to closing of the UNC Merger have
been satisfied without the prior written consent of Parent. The Company agrees
to provide to Parent, as promptly as practicable, copies of all notices given to
or by the Company pursuant to or in connection with the UNC Merger Agreement.
SECTION 6.16. CLEAN AIR ACT PERMIT. The Company covenants and agrees that,
between the date of this Agreement and the Effective Time, the Company shall use
its reasonable best efforts to obtain an operating permit under Title V of the
Clean Air Act, as amended, with respect to operations at the Company's Miami
International Airport Facility and in connection therewith to ensure
continuation of present operating levels of such facility pending the issuance
of such permit. Provided that the Company is using its reasonable best efforts
to obtain such permit, Parent hereby acknowledges that the failure to obtain
such permit shall not, in and of itself, be a breach of such covenant; provided
that Parent does not waive any breach that may result from the failure to have
such permit under any other provision of this Agreement and provided, further,
that, notwithstanding any disclosure of the failure to have such permit in this
Agreement, the Company Disclosure Schedule or otherwise, any adverse
consequences resulting or arising from the failure to have such permit may be
taken into account in determining whether a Company Material Adverse Effect has
occurred.
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ARTICLE VII
CONDITIONS TO THE MERGER
SECTION 7.01. CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations
of the Company, Parent and Merger Sub to consummate the Merger are subject to
the satisfaction or, if permitted by applicable Law, waiver of the following
conditions:
(a) this Agreement and the transactions contemplated hereby shall have
been approved and adopted by the affirmative vote of the holders of a
majority of the outstanding shares of Company Class A Stock in accordance
with Delaware Law and the Company's Certificate of Incorporation;
(b) any applicable waiting period under the HSR Act relating to the
Merger shall have expired or been terminated;
(c) no order, statute, rule, regulation, executive order, stay, decree,
judgment or injunction shall have been enacted, entered, issued, promulgated
or enforced by any Governmental Authority or a court of competent
jurisdiction which has the effect of making the Merger illegal or otherwise
prohibiting consummation of the Merger;
(d) the Registration Statement shall have been declared effective, and
no stop order suspending the effectiveness of the Registration Statement
shall be in effect and no proceedings for such purpose shall be pending
before or threatened by the SEC;
(e) the shares of Parent Common Stock to be issued in the Merger shall
have been authorized for listing on the NYSE, subject to official notice of
issuance; and
(f) all other necessary and material governmental and regulatory
clearances, consents, or approvals shall have been received, other than the
consent to assignment of the Company's FAA Certificate which need not be
received prior to the Effective Time.
SECTION 7.02. CONDITIONS TO THE OBLIGATIONS OF PARENT AND MERGER SUB. The
obligations of Parent and Merger Sub to consummate the Merger are subject to the
satisfaction or, if permitted by applicable Law, waiver of the following further
conditions:
(a) (i) the Company shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to the
Effective Time; (ii) each of the representations and warranties of the
Company contained in this Agreement (disregarding for this purpose any
qualifications with respect to materiality or Company Material Adverse
Effect) shall be true and correct in all material respects, in each case as
of the date hereof and at and as of the Closing Date as if made at and as of
such time, it being understood and agreed by Parent and Merger Sub that this
Section 7.02(a) shall be deemed to have been satisfied unless any failure of
performance or failure to be so true and correct, individually or in the
aggregate, would have a Company Material Adverse Effect; and (iii) Parent
shall have received a certificate signed by an executive officer of the
Company to the foregoing effect;
(b) Parent shall have received "cold comfort" letters of Deloitte &
Touche LLP and dated the date on which the Registration Statement shall
become effective and the Effective Time, respectively, and addressed to
Parent, such "cold comfort" letters being in such form and substance as is
reasonably customary for letters delivered by independent public accountants
in connection with registration statements similar to the Registration
Statement;
(c) Parent shall have received the opinion of counsel to Parent, based
upon representation letters and stockholder certificates, dated on or about
the Closing Date, substantially in the forms of Exhibits 7.02(a), (b) and
(c) to this Agreement, and such other facts, representations and assumptions
concerning, among other things, the actions of the stockholders of the
Company as counsel may reasonably deem relevant, to the effect that the
Merger will be treated for federal income tax
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purposes as a reorganization qualifying under the provisions of Section
368(a) of the Code and that each of Parent, Merger Sub and the Company will
be a party to the reorganization within the meaning of Section 368(b) of the
Code, dated on the Closing Date;
(d) Parent shall have received from any person who may be deemed to have
become an affiliate of the Company, as reasonably determined by the Company,
pursuant to Rule 145 under the Securities Act, after the date of this
Agreement and on or prior to the Effective Time, a signed agreement
substantially in the form of Exhibit 6.11 hereto.
SECTION 7.03. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligations
of the Company to consummate the Merger are subject to the satisfaction or, if
permitted by applicable Law, waiver of the following further conditions:
(a) (i) Parent and Merger Sub shall have performed in all material
respects all of their respective obligations hereunder required to be
performed by them at or prior to the Effective Time; (ii) each of the
representations and warranties of Parent contained in this Agreement
(disregarding for this purpose any qualifications with respect to
materiality or Parent Material Adverse Effect) shall be true and correct in
all material respects, in each case as of the date hereof and at and as of
the Closing Date as if made at and as of such time; it being understood and
agreed by the Company that this Section 7.03(a) shall be deemed to have been
satisfied unless any failure of performance or failure to be so true and
correct, individually or in the aggregate, would have a Parent Material
Adverse Effect; and (iii) the Company shall have received a certificate
signed by an executive officer of Parent to the foregoing effect; and
(b) TAX OPINION. The Company shall have received the opinion of
Greenberg, Traurig, counsel to the Company, based upon representation
letters and stockholder certificates substantially in the forms of Exhibits
7.02(a), (b) and (c) to this Agreement, dated on or about the Closing Date,
and such other facts, representations and assumptions concerning, among
other things, the actions of the stockholders of the Company as counsel may
reasonably deem relevant, to the effect that the Merger will be treated for
federal income tax purposes as a reorganization qualifying under the
provisions of Section 368(a) of the Code and that each of Parent, Merger Sub
and the Company will be a party to the reorganization within the meaning of
Section 368(b) of the Code, dated on the Closing Date.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. TERMINATION. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time, notwithstanding any
requisite approval and adoption of this Agreement and the transactions
contemplated hereby by the stockholders of the Company:
(a) by written consent duly authorized by the Boards of Directors of
each of Parent and the Company;
(b) by either Parent or the Company if (i) the waiting period applicable
to the consummation of the Merger under the HSR Act shall not have expired
or been terminated prior to September 30, 1997, (ii) any court of competent
jurisdiction in the United States or other United States Governmental
Authority shall have issued an order (other than a temporary restraining
order), decree or ruling, or taken any other action, restraining, enjoining
or otherwise prohibiting the Merger (provided, however, that neither party
may terminate this Agreement pursuant to this Section 8.01(b)(ii) prior to
September 30, 1997 if the party subject to such order, decree or ruling is
using its reasonable best efforts to have such order, decree or ruling
removed, unless such order, decree or ruling shall have become final and
non-appealable), or (iii) the Effective Time shall not have occurred on or
before September 30, 1997; provided that the right to terminate this
Agreement under this Section 8.01(b) shall not be available to any party
whose willful, deliberate or knowing failure to fulfill any
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obligation under this Agreement has been the cause of, or resulted in, the
failure of the Effective Time to occur on or before such date;
(c) by either Parent or the Company, if the Stockholders' Meeting shall
have been held and the holders of outstanding shares of Company Class A
Stock shall have failed to approve and adopt this Agreement at such meeting
(including any adjournment or postponement thereof); provided, however, that
if the Company shall have delivered a Superior Proposal Notice to Parent,
the Company shall not have the right to terminate this Agreement pursuant to
this Section 8.01(c) until the Company would otherwise be permitted to do so
pursuant to Section 8.01(g);
(d) by the Company, upon a breach of any representation, warranty, or
agreement set forth in this Agreement such that the condition set forth in
Section 7.03(a) would not be satisfied (a "Terminating Parent Breach");
provided, however, that, if such Terminating Parent Breach is curable by
Parent through the exercise of its best efforts and Parent continues to
exercise such best efforts, the Company may not terminate this Agreement
under this Section 8.01(d) for a period of 30 days from the date on which
the Company delivers to Parent written notice setting forth in reasonable
detail the circumstances giving rise to such Terminating Parent Breach; or
(e) by Parent, upon a breach of any representation, warranty, or
agreement set forth in this Agreement such that the condition set forth in
Section 7.02(a) would not be satisfied (a "Terminating Company Breach");
provided, however, that, if such Terminating Company Breach is curable by
the Company through the exercise of its best efforts and the Company
continues to exercise such best efforts, Parent may not terminate this
Agreement under this Section 8.01(e) for a period of 30 days from the date
on which Parent delivers to the Company written notice setting forth in
reasonable detail the circumstances giving rise to such Terminating Company
Breach;
(f) by Parent, at any time after the Company shall have delivered a
Superior Proposal Notice to Parent; or
(g) by the Company if the Company shall have delivered to Parent a
Superior Notice Proposal in accordance with Section 6.05(b), (i) in the
event that any applicable waiting period under the HSR Act relating to the
Merger shall have expired or been terminated and at such time there shall be
no order, decree, ruling or stipulation entered into restraining, enjoining
or otherwise preventing the Merger or the purchase of Company Common Stock
pursuant to the Option and Voting Agreement, at any time after the 15th
business day following the date the Company shall have delivered such Notice
or (ii) in the event that any applicable waiting period under the HSR Act
relating to the Merger shall not have expired or been terminated or there
shall be in effect any order, decree, ruling or stipulation entered into or
approved by any Governmental Authority restraining, enjoining or otherwise
preventing the Merger or the purchase of Company Common Stock pursuant to
the Voting and Option Agreement, at any time after the later of June 30,
1997 and the 45th day following the date that the Company shall have
delivered such Notice, provided that, in the case of each of (i) and (ii),
(A) the Superior Proposal referred to in such notice shall not have been
withdrawn or changed in such a way that it would no longer be a "Superior
Proposal" pursuant to the definition contained in this Agreement and (B) the
15 business day period in (i) and the 45 day period in (ii) shall each be
extended by an amount of time equal to any period in which a stockholder is
in breach of such stockholder's obligations to deliver shares of Company
Common Stock pursuant to the Option and Voting Agreement and provided,
further, that, in the case of a Superior Proposal Notice delivered when the
circumstances described in clause (ii) existed and subsequent to such
delivery the applicable waiting period under the HSR Act relating to the
Merger shall have expired or been terminated and at such time there shall be
no order, decree, ruling or stipulation entered into restraining, enjoining
or otherwise preventing the Merger or the purchase of Company Common Stock
pursuant to the Option and Voting Agreement, the Company may terminate this
Agreement at any time after the 15th business day following the date of such
expiration of termination.
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SECTION 8.02. EFFECT OF TERMINATION. Except as provided in Section 9.01, in
the event of the termination of this Agreement pursuant to Section 8.01, this
Agreement shall forthwith become void, there shall be no liability under this
Agreement on the part of Parent, Merger Sub or the Company or any of their
respective officers or directors and all rights and obligations of any party
hereto shall cease; provided, however, that nothing herein shall relieve any
party from liability for, or be deemed to waive any rights of specific
performance of this Agreement available to a party by reason of, any willful
breach by the other party or parties of its or their willful breach of any of
its representations, warranties, covenants or agreements set forth in this
Agreement.
SECTION 8.03. FEES AND EXPENSES. (a) In the event that:
(i)(A) this Agreement is terminated pursuant to Section 8.01(b)(i) and
(B) the failure of the waiting period referred to in Section 8.01(b)(i) to
expire or terminate prior to September 30, 1997 shall not have been caused
principally by, nor shall it have resulted principally from, the Company's
breach of any obligation under this Agreement, or
(ii) any court of competent jurisdiction in the United States or other
United States Governmental Authority shall have issued an order (other than
a temporary restraining order which shall have been lifted on or before
September 30, 1997), decree or ruling, or taken any other action,
restraining, enjoining or otherwise prohibiting the Merger pursuant to
Section 7 of the Clayton Act of 1914, as amended, or the Federal Trade
Commission Act of 1914, as amended, and this Agreement shall have been
terminated pursuant to Section 8.01(b)(ii);
then, in either event, Parent shall pay the Company promptly a fee of $33.5
million (the "Parent Break-Up Fee"), which amount shall be payable in
immediately available funds; provided, however, that if, within 12 months after
this Agreement shall have been terminated in the circumstances described in
Section 8.03(a)(i) or (ii), a transaction which results in a Change of Control
(as defined below) is consummated for aggregate consideration in excess of the
aggregate Merger Consideration, then the Company shall, promptly after the
consummation of such transaction, reimburse Parent in immediately available
funds for the full amount of the Parent Break-Up Fee paid by Parent to the
Company pursuant to this Section 8.03(a), exclusive of interest. For purposes of
this Agreement, the term "Change of Control", shall mean the occurrence of any
of the following events with respect to the Company: (i) there shall be
consummated (A) any merger, consolidation or combination (any, a "Combination")
involving the Company in which the Company is not the continuing or surviving
corporation, or pursuant to which shares of a majority of the Company's voting
stock would be converted in whole or in part into cash, other securities or
other property, other than a Combination involving the Company in which the
holders of a majority of the Company's voting stock immediately prior to the
Combination either have substantially the same proportionate ownership of voting
stock of the surviving corporation immediately after the Combination or a
sufficient percentage of the voting stock of the surviving corporation to enable
such holders to effectively cause a majority of the members of the surviving
corporation's board of directors to be persons acceptable to such holders, or
(B) any sale, lease, exchange or transfer (in one transaction or a series
related transaction) of all or substantially all of the assets of the Company,
(ii) any person, other than the Company or a Subsidiary or any employee benefit
plan sponsored by the Company or a Subsidiary or a corporation owned, directly
or indirectly, by the stockholders of the Company in substantially the same
proportions in their ownership of stock of the Company, shall become the
beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of
securities of the Company representing 50% or more of the combined voting power
of then outstanding securities ordinarily (and apart from rights accruing in
special circumstances) having the right to vote in the election of directors, as
a result of a tender or exchange offer, open market purchases, privately
negotiated purchases or otherwise.
(b) All expenses incurred by the parties hereto shall be borne solely and
entirely by the party which has incurred the same; provided, however, that (a)
Parent shall pay any New York State Real Estate Transfer Tax and New York City
Real Property Transfer Tax and any similar Taxes in any jurisdiction (and
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any penalties and interest with respect to such Taxes), which becomes payable in
connection with the Merger, on behalf of the stockholders of the Company without
the offset, deduction, counterclaim or deferment of the price to be paid for
shares of Company Common Stock pursuant to the Merger and (b) Parent and the
Company shall bear equally all expenses related to printing, filing and mailing
the Registration Statement and the Proxy Statement and all SEC and other
regulatory filing fees incurred in connection with the Registration Statement
and the Proxy Statement.
SECTION 8.04. AMENDMENT. This Agreement may be amended by the parties hereto
by action taken by or on behalf of their respective Boards of Directors at any
time prior to the Effective Time; provided that, after the approval and adoption
of this Agreement by the stockholders of the Company, no amendment may be made
which would reduce the amount or change the type of consideration to be received
by the stockholders of the Company pursuant to the Merger. This Agreement may
not be amended except by an instrument in writing signed by the parties hereto.
SECTION 8.05. WAIVER. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any obligation or other
act of any other party hereto, (b) waive any inaccuracy in the representations
and warranties of the other party contained herein or in any document delivered
by the other party pursuant hereto and (c) waive compliance with any agreement
or condition contained herein. Any such extension or waiver shall be valid if
set forth in an instrument in writing signed by the party or parties to be bound
thereby.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS. The representations, warranties and agreements in this Agreement and
any certificate delivered pursuant hereto by any person shall terminate at the
Effective Time or upon the termination of this Agreement pursuant to Section
8.01, as the case may be, except that the agreements set forth in Articles I and
II and Sections 6.06 and 6.14 shall survive the Effective Time indefinitely, and
those set forth in Sections 6.09, 8.02, 8.03, 8.04, 8.05 and this Article IX
shall survive termination indefinitely.
SECTION 9.02. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested)
or by a nationally recognized overnight courier service to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 9.02):
if to Parent or Merger Sub:
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431-0001
Facsimile: (203) 373-3008
Attention: Vice President and
Senior Counsel-Transactions
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with copies to:
General Electric Company
One Neumann Way
Mail Drop J104
Evendale, Ohio 45215-6301
Facsimile: (513) 243-5096
Attention: Vice President and General Counsel
and
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Facsimile: (212) 848-7179
Attention: Stephen R. Volk, Esq.
and John A. Marzulli, Jr., Esq.
if to the Company:
Greenwich Air Services, Inc.
4590 N.W. 36th Street
Miami, Florida 33152
Facsimile: (305) 526-7005
Attention: Eugene P. Conese, Sr., Chairman
and Chief Executive Officer
with a copy to:
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel
153 East 53rd Street
New York, NY 10022
Facsimile: (212) 223-7161
Attention: Stephen A. Weiss, Esq.
SECTION 9.03. CERTAIN DEFINITIONS. For purposes of this Agreement, the term:
(a) "affiliate" of a specified person means a person who directly or
indirectly through one or more intermediaries controls is controlled by, or is
under common control with, such specified person;
(b) "beneficial owner" with respect to any shares means a person who shall
be deemed to be the beneficial owner of such shares (i) which such person or any
of its affiliates or associates (as such term is defined in Rule 12b-2
promulgated under the Exchange Act) beneficially owns, directly or indirectly,
(ii) which such person or any of its affiliates or associates has, directly or
indirectly, (A) the right to acquire (whether such right is exercisable
immediately or subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of consideration rights,
exchange rights, warrants or options, or otherwise, or (B) the right to vote
pursuant to any agreement, arrangement or understanding or (iii) which are
beneficially owned, directly or indirectly, by any other persons with whom such
person or any of its affiliates or associates or any person with whom such
person or any of its affiliates or associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of any
such shares;
(c) "business day" means any day on which the principal offices of the SEC
in Washington, D.C. are open to accept filings, or, in the case of determining a
date when any payment is due, any day on which banks are not required or
authorized to close in the City of New York, New York;
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(d) "Company Aeroderivative Business" shall mean the overhaul, maintenance
and repair of gas turbine engines used for industrial and marine applications,
and the management, sale, installation and maintenance of power stations;
(e) "Company Businesses" shall mean, as of the date specified, the
collective reference to the Company Commercial Aircraft Business, the Company
Government Business and the Company Aeroderivative Business, as presently
conducted by the entities in the Company Group and their respective business
operations;
(f) "Company Commercial Aircraft Business" shall mean the overhaul,
maintenance and repair of commercial gas turbine aircraft engines conducted at
the engine service centers of the Company Group located in Miami, Florida,
Dallas, Texas, Ft. Worth, Texas, McAllen, Texas, East Granby, Connecticut and
Prestwick, Scotland;
(g) "Company Government Business" shall mean the aircraft engine maintenance
and repair programs managed and operated by the Company Group for domestic and
foreign governments and military agencies;
(h) "Company Group" shall mean the Company, the Subsidiaries and any
partnerships in which the Company or any Subsidiary has an interest, when taken
as a whole;
(i) "control" (including the terms "controlled by" and "under common control
with") means the possession, directly or indirectly or as trustee or executor,
of the power to direct or cause the direction of the management and policies of
a person, whether through the ownership of voting securities, as trustee or
executor, by contract or credit arrangement or otherwise;
(j) "Governmental Authority" means any United States (federal, state or
local), foreign or supra-national Government, or governmental, regulatory or
administrative authority, agency or commission;
(k) "Knowledge" means the actual knowledge of any of Eugene P. Conese, Sr.,
Eugene P. Conese, Jr., Robert J. Vanaria and Michael A. Bucci, together with the
knowledge that (i) Eugene P. Conese, Sr. and Eugene P. Conese, Jr. would have
had after making due inquiry of the officers of the Company and the Subsidiaries
who have responsibility for the subject matter in question and who report
directly to them, including Mordechai Volevesky, Gerald Waltman, R. Frank
Leftwich, Richard Cardin, Graham Bell and John Korsborough, and (ii) Robert J.
Vanaria would have had after making due inquiry of Orlando Machado, Guillermo
Novarro and Ed Broadmeadow;
(l) "person" means an individual, corporation, limited liability company,
partnership, limited partnership, syndicate, person (including, without
limitation, a "person" as defined in Section 13(d)(3) of the Exchange Act),
trust, association or entity or government, political subdivision, agency or
instrumentality of a government;
(m) "Real Estate" means, with respect to the Company or any Subsidiary, as
applicable, all of the fee or leasehold ownership right, title and interest of
such person, in and to all real estate and improvements owned or leased by any
such person and which is used by any such person in connection with the
operation of its business; and
(n) "subsidiary" or "subsidiaries" of any person means any corporation,
partnership, joint venture or other legal entity of which such person (either
above or through or together with any other subsidiary), owns, directly or
indirectly, 50% or more of the stock or other equity interests, the holders of
which are generally entitled to vote for the election of the board of directors
or other governing body of such corporation or other legal entity.
SECTION 9.04. ACCOUNTING TERMS. All accounting terms used herein which are
not expressly defined in this Agreement shall have the respective meanings given
to them in accordance with United States generally accepted accounting
principles.
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SECTION 9.05. SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of Law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the Merger is not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the Merger be
consummated as originally contemplated to the fullest extent possible.
SECTION 9.06. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement (including the
Exhibits and the Company Disclosure Schedule, which are hereby incorporated
herein and made a part hereof for all purposes as if fully set forth herein) and
the Confidentiality Agreement constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. This Agreement shall not be assigned by
operation of law or otherwise, except that Parent and Merger Sub may assign all
or any of their rights and obligations hereunder to any affiliate of Parent
provided that no such assignment shall change the amount or nature of the Merger
Consideration or relieve the assigning party of its obligations hereunder if
such assignee does not perform such obligations.
SECTION 9.07. PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, other than Section 6.06 (which is intended to be for the benefit of
the persons covered thereby and may be enforced by such persons).
SECTION 9.08. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 9.09. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that state. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in the Court of Chancery for the State of Delaware in and
for the County of New Castle.
SECTION 9.10. HEADINGS. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 9.11. COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
GENERAL ELECTRIC COMPANY
By: /s/ WILLIAM J. VARESCHI
-----------------------------------------
Name: William J.Vareschi
Title: VICE PRESIDENT
GB MERGER CORP.
By: /s/ WILLIAM J. VARESCHI
-----------------------------------------
Name: William J. Vareschi
Title: CHIEF EXECUTIVE OFFICER AND
PRESIDENT
GREENWICH AIR SERVICES, INC.
By: /s/ EUGENE P. CONESE
-----------------------------------------
Name: Eugene P. Conese
Title: CHIEF EXECUTIVE OFFICER
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ANNEX II
[LOGO]
March 9, 1997
Board of Directors
Greenwich Air Services, Inc.
4590 NW 36th Street
Miami, FL 33122
Members of the Board:
You have requested our opinion as to the fairness, from a financial point of
view, to the holders of Class A common stock, par value $.01 per share ("Class A
Common Stock"), and Class B common stock, par value $.01 per share ("Class B
Common Stock" and, together with the Class A Common Stock, the "Company Common
Stock"), of Greenwich Air Services, Inc. (the "Company"), of the consideration
to be received by such holders in connection with the proposed merger
(the"Merger") of the Company with GB Merger Corp. ("Sub"), a wholly owned
subsidiary of General Electric Company ("Parent"), pursuant to an Agreement and
Plan of Merger, dated as of March 9, 1997 (the "Merger Agreement"), among
Parent, Sub and the Company. Unless otherwise specifically defined herein, all
capitalized terms used herein shall have the meanings ascribed to such terms in
the Merger Agreement.
Upon the effectiveness of the Merger, each share of Company Common Stock
issued and outstanding as of the Effective Time (other than shares owned by
Parent, Sub or any other subsidiary of Parent and shares owned by the Company or
any subsidiary of the Company), will be converted into the right to receive
$31.00 in the form of shares of common stock, par value $.32 per share ("Parent
Common Stock"), of Parent (the "Stock Consideration") and/or cash (the "Cash
Consideration" and together with the Stock Consideration, the "Merger
Consideration"). The Merger Agreement provides the holders of the Company Common
Stock with the ability to elect to receive the Cash Consideration, subject to
proration, in lieu of the Stock Consideration. We understand that the maximum
aggregate amount of Cash Consideration to be paid is 55% of the aggregate Merger
Consideration, subject to a reduction in the Cash Consideration component in
certain events as described in the Merger Agreement. We understand that all
approvals required for the consummation of the Merger have been or, prior to the
consummation of the Merger, will be obtained.
The Company and UNC Incorporated ("UNC") have entered into an Agreement and
Plan of Reorganization dated as of February 13, 1997 (the "Prior UNC
Agreement"), pursuant to which UNC is to merge with a wholly owned subsidiary of
the Company (or, at the Company's option, the Company). Upon the effectiveness
of the merger contemplated by the Prior UNC Agreement (the "Prior UNC Merger"),
each share of common stock, par value $.20 per share, of UNC ("UNC Common
Stock"), and each share of Series B cumulative convertible preferred stock, par
value $1.00 per share, of UNC ("UNC Preferred Stock"), issued and outstanding as
of the effective time (other than shares owned by the Company, any subsidiary of
the Company, UNC or any subsidiary of UNC), would be converted into the right to
receive,
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subject to proration, consideration in the form of cash (the "UNC Cash
Consideration") and/or shares of Class B Common Stock (the "UNC Stock
Consideration" and together with the Cash Consideration the "UNC Merger
Consideration"). The Prior UNC Agreement provides UNC's stockholders with the
ability to elect to receive either the UNC Cash Consideration or the UNC Stock
Consideration, subject to proration. The maximum aggregate amount of Cash
Consideration to be paid by the Company is 50% of the total UNC Merger
Consideration, which amount is subject to an increase in the UNC Cash
Consideration component in certain events at the election of the Company as
described in the Prior UNC Agreement. To the extent a holder of UNC Common Stock
or UNC Preferred Stock receives all or a portion of the Merger Consideration in
the form of UNC Stock Consideration, such holder would receive (a) in the case
of a holder of UNC Common Stock, the Exchange Ratio (as defined below) of a
share of Class B Common Stock per share of UNC Common Stock or (b) in the case
of a holder of UNC Preferred Stock, a fraction of a share of Class B Common
Stock determined by multiplying the Exchange Ratio by the conversion rate
applicable to the UNC Preferred Stock at the effective time of the Prior UNC
Merger. The "Exchange Ratio" is defined in the Prior UNC Agreement as a fraction
which is to be determined as follows: (a) if the Closing Date Market Value (as
defined in the Prior UNC Agreement) is less than or equal to $24.86, the
Exchange Ratio would be (i) $14.00 divided by (ii) the Closing Date Market
Value; (b) if the Closing Date Market Value exceeds $24.86 but is less than or
equal to $28.59, the Exchange Ratio would be 0.5632; or (c) if the Closing Date
Market Value exceeds $28.59, the Exchange Ratio would be (i) $16.10 divided by
(ii) the Closing Date Market Value.
In connection with the execution of the Merger Agreement, the Company and
UNC amended and restated the Prior UNC Agreement pursuant to an Amended and
Restated Agreement and Plan of Merger dated as of March 9, 1997, the "Amended
UNC Agreement"), by and between the Company, Condor Acquisition Corp. and UNC,
pursuant to which UNC will merge with Condor Acquisition Corp. (the "UNC
Merger"). The Amended UNC Agreement provides that, if the Merger occurs, in lieu
of the consideration described above, each share of UNC Common Stock and each
share of UNC Preferred Stock, issued and outstanding as of the effective time
(other than shares owned by the Company, any subsidiary of the Company, UNC or
any subsidiary of UNC), will be converted into the right to receive $15.00 cash.
In connection with rendering our opinion, we have reviewed the Merger
Agreement, the Prior UNC Agreement, the Amended UNC agreement and their
respective exhibits. We have also reviewed certain publicly available
information concerning the Company and UNC and certain other financial
information concerning the Company and UNC, including financial forecasts, that
were provided to us by the Company and UNC, respectively. We have discussed the
past and current business operations, financial condition and prospects of the
Company and UNC with certain officers and employees of the Company and UNC,
respectively. With respect to Parent, we have reviewed only publicly available
business and financial information. We have also considered such other
information, financial studies, analyses, investigations and financial, economic
and market criteria that we deemed relevant.
In our review and analysis and in arriving at our opinion, we have assumed
and relied upon the accuracy and completeness of the information reviewed by us
for the purpose of this opinion and we have not assumed any responsibility for
independent verification of such information (including, without limitation,
information relating to environmental liabilities). With respect to the
financial forecasts of the Company and UNC, we have assumed that they have been
reasonably prepared on bases reflecting the best currently available estimates
and judgments of the respective managements of the Company and UNC as to the
future financial performance of the Company and UNC, respectively, and we
express no opinion with respect to such forecasts or the assumptions on which
they are based. We have not assumed any responsibility for any independent
evaluation or appraisal of any of the assets (including properties and
facilities) or liabilities of the Company, UNC or Parent (including, without
limitation, environmental liabilities).
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Our opinion is necessarily based upon conditions as they exist and can be
evaluated on the date hereof. Our opinion does not address the Company's
underlying business decision to effect the Merger or the UNC Merger. Our opinion
is directed only to the fairness from a financial point of view of the Merger
Consideration to be paid to the Holders of Company Common Stock and does not
constitute a recommendation concerning how holders of Company Common Stock
should vote with respect to the Merger or the Merger Agreement. Our opinion as
expressed below does not imply any conclusion as to the likely trading range for
Parent Common Stock following the consummation of the Merger, which may vary
depending upon, among other factors, changes in interest rates, dividend rates,
market conditions, general economic conditions and other factors that generally
influence the price of securities.
We have acted as financial advisor to the Board of Directors of the Company
in connection with the Merger and will receive a fee for our services, a portion
of which is payable upon delivery of this opinion and the remainder of which is
contingent upon consummation of the Merger. We have also acted as financial
advisor to the Board of Directors of the Company in connection with the Prior
UNC Merger and will receive a fee for our services, a portion of which is
payable and the remainder of which would be payable upon consummation of the
Prior UNC Merger if the Merger has not previously been consummated. In the
ordinary course of business, we may actively trade the securities of the
Company, Parent and UNC for our own account and for the accounts of customers
and, accordingly, may at any time hold a long or short position in such
securities. In addition, we have previously rendered certain investment banking
and financial advisory services to the Company and Parent for which we have
received customary compensation.
Based upon and subject to the foregoing, it is our opinion that, as of the
date hereof, the Merger Consideration is fair to the holders of Company Common
Stock (other than Parent and any of its affiliates) from a financial point of
view.
Very truly yours,
SALOMON BROTHERS INC
3
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ANNEX III
STOCK OPTION AND VOTING AGREEMENT dated March 9, 1997, among the several
stockholders of GREENWICH AIR SERVICES, INC., a Delaware corporation (the
"Company"), that are parties hereto (each, a "Stockholder" and, collectively,
the "Stockholders"), and GENERAL ELECTRIC COMPANY, a New York corporation
("Parent").
WHEREAS, Parent and GB Merger Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), propose to enter into an Agreement
and Plan of Merger dated the date hereof (as amended from time to time, the
"Merger Agreement"; capitalized terms being used herein as defined therein
unless otherwise defined herein), with the Company, which provides, among other
things, that the Company will merge with and into Merger Sub (the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the record and
beneficial owner of the number of shares of Class A Common Stock, par value $.01
per share, of the Company (the "Class A Common Stock"), and Class B Common
Stock, par value $.01 per share, of the Company (the "Class B Common Stock," and
together with the Class A Common Stock, the "Company Common Stock") set forth on
the signature page hereof beneath such Stockholder's name (with respect to each
Stockholder, such Stockholder's "Existing Shares" and, together with any shares
of Company Common Stock acquired after the date hereof, whether upon the
exercise of warrants, options, conversion of convertible securities or
otherwise, such Stockholder's "Shares"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has requested that the Stockholders agree, and in order
to induce Parent to enter into the Merger Agreement, the Stockholders have
agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.01. VOTING AGREEMENT. Each Stockholder, severally and not jointly,
hereby agrees that, from and after the date hereof and until this Agreement
shall have been terminated in accordance with Article VII hereof, at any meeting
of the stockholders of the Company, however called, and in any action by consent
of the stockholders of the Company, such Stockholder will vote (or cause to be
voted) such Stockholder's Shares: (a) in favor of the approval and adoption of
the Merger Agreement, the Merger and all the transactions contemplated by the
Merger Agreement and this Agreement and otherwise in such manner as may be
necessary to consummate the Merger; (b) except as otherwise agreed to in writing
in advance by Parent, against any action, proposal, agreement or transaction
that would result in a breach of any covenant, obligation, agreement,
representation or warranty of the Company contained in the Merger Agreement
(whether or not theretofore terminated) or of the Stockholder contained in this
Agreement; and (c) against any action, proposal, agreement or transaction (other
than the Merger Agreement or the transactions contemplated thereby) that could
result in any of the conditions to the Company's obligations under the Merger
Agreement (whether or not theretofore terminated) not being fulfilled or that is
intended, or could reasonably be expected, to impede, interfere or be
inconsistent with, delay, postpone, discourage or adversely affect the Merger
Agreement (whether or not theretofore terminated), the Merger or this Agreement,
including, but not limited to, any Competing Transaction (as such term is
defined in the Merger Agreement); PROVIDED, HOWEVER, that the Stockholders shall
not be obligated to vote in favor of the Merger pursuant to clause (a) above if
the Board of Directors of the Company has previously withdrawn and not
reinstated its recommendation in favor of the Merger in the manner prescribed in
Section 6.05(b) of the Merger Agreement. Notwithstanding anything to the
contrary contained in the proviso in the
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immediately preceding sentence, if Parent has delivered an Exercise Notice with
respect to all of the Shares then owned by the stockholders and prior to such
date the Company has established a record date for Shareholder action on a
matter covered by clause (a) above, the Stockholders shall be obligated to vote
in favor of the Merger pursuant to clause (a) above. Such Stockholder shall not
enter into any agreement or understanding with any person or entity to vote such
Stockholder's shares or give instructions in any manner inconsistent with this
Section 1.01. The Stockholder acknowledges receipt and review of a copy of the
Merger Agreement.
SECTION 1.02. IRREVOCABLE PROXY. If, and only if, any Stockholder fails to
comply with the provisions of Section 1.01 (as determined by Parent in its sole
discretion), such Stockholder hereby agrees that such failure shall result,
without any further action by such Stockholder, in the irrevocable appointment
of Parent, and each of its officers, as such Stockholder's attorney and proxy
pursuant to the provisions of Section 212(c) of the General Corporation Law of
the State of Delaware, with full power of substitution, to vote and otherwise
act (by written consent or otherwise) with respect to such Stockholder's Shares
at any meeting of stockholders of the Company (whether annual or special and
whether or not an adjourned or postponed meeting) or consent in lieu of any such
meeting or otherwise, on the matters and in the manner specified in Section
1.01. THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN
INTEREST AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SHALL BE VALID AND
BINDING ON ANY PERSON TO WHOM A STOCKHOLDER MAY TRANSFER ANY OF HIS SHARES IN
BREACH OF THIS AGREEMENT. Each Stockholder hereby revokes all other proxies and
powers of attorney with respect to such Stockholder's Shares that may have
heretofore been appointed or granted, other than the irrevocable proxy and
voting trust granted by Anna Mae Conese in favor of Eugene P. Conese, Sr. (the
"Irrevocable Proxy"), and no subsequent proxy or power of attorney shall be
given or written consent executed (and if given or executed, shall not be
effective) by any Stockholder with respect thereto. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of any
Stockholder and the termination of the Irrevocable Proxy and any obligation of
the Stockholder under this Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of such Stockholder.
ARTICLE II
THE OPTION
SECTION 2.01. GRANT OF OPTION. Each Stockholder, severally and not jointly,
hereby grants to Parent an irrevocable option (each, an "Option" and,
collectively, the "Options") to purchase all, and not less than all, such
Stockholder's Shares at a price per Share equal to a number of shares (or
fractions of a share) of Parent's common stock, par value $0.32 per share
("Parent Common Stock"), having a Fair Market Value equal to $31.00 (the
"Purchase Price"). For purposes of this Section 2.01, "Fair Market Value" means
the average of the closing prices of a share of Parent Common Stock on the New
York Stock Exchange for each of the 10 trading days ending on the trading day
next preceding the Closing Date (as defined below). Each Stockholder may elect
to receive up to 55% of the aggregate Purchase Price for all of such
Stockholder's Shares in the same manner as is provided in Section 2.03(b) of the
Merger Agreement.
SECTION 2.02. EXERCISE OF OPTION. (a) The Options may be exercised by
Parent, in whole but not in part as to all but not less than all Stockholders,
during the period commencing on the date that the waiting period applicable to
the consummation of the purchase of the Shares pursuant to the Options on the
Merger has expired or been terminated and ending on the date which is the
earlier of (i) upon notice given by the Stockholders or Parent after September
30, 1997 and (ii) the date of termination of the Merger Agreement pursuant to
Section 8.01 thereof by the Company in connection with a Terminating Parent
Breach.
(b) If Parent wishes to exercise the Options, Parent shall send a written
notice (the "Exercise Notice") to each Stockholder of its intention to exercise
the Options, specifying the place, and, if then
2
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known, the time and the date (the "Closing Date") of the closing (the "Closing")
of the purchase. The Closing Date shall occur on the third business day (or such
longer period as may be required by applicable law or regulation) after the
later of (i) the date on which such Exercise Notice is delivered and (ii) the
satisfaction of the conditions set forth in Section 2.02(e).
(c) At the Closing, each Stockholder shall deliver to Parent (or its
designee) all of such Stockholder's Shares by delivery of a certificate or
certificates evidencing such Shares in the denominations designated by Parent in
its exercise notice delivered pursuant to Section 2.02(b), duly endorsed to
Parent or accompanied by stock powers duly executed in favor of Parent, with all
necessary stock transfer stamps affixed.
(d) At the Closing, Parent shall pay the Purchase Price by delivery to each
Stockholder of certificates representing the applicable number of shares of
Parent Common Stock determined in accordance with Section 2.01 hereof registered
in the name of such Stockholder.
(e) The Closing shall be subject to the satisfaction of each of the
following conditions:
(i) no court, arbitrator or governmental body, agency or official shall
have issued any order, decree or ruling and there shall not be any statute,
rule or regulation, restraining, enjoining or prohibiting the consummation
of the purchase and sale of the Shares pursuant to the exercise of the
Options; and
(ii) any waiting period applicable to the consummation of the purchase
and sale of the Shares pursuant to the exercise of the Options under the HSR
Act shall have expired or been terminated.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants
to Parent in respect of such Stockholder as follows:
SECTION 3.01. AUTHORITY RELATIVE TO THIS AGREEMENT. Such Stockholder has all
necessary power and authority to execute and deliver this Agreement, to perform
such Stockholders' obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by such
Stockholder and constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
Eugene P. Conese, Sr. and not Anna May Conese has all necessary power and
authority to execute and deliver this Agreement with respect to the
applicability of Article 1 of this Agreement to the Shares subject to the
Irrevocable Proxy; Anna May Conese has such power and authority with respect to
the grant of the Option covering such Shares.
SECTION 3.02. NO CONFLICT. (a) The execution and delivery of this Agreement
by such Stockholder do not, and the performance of this Agreement by such
Stockholder shall not, (i) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to such Stockholder or by which the Shares
owned by such Stockholder are bound or affected or (ii) result in any breach of,
or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the Shares owned by such Stockholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder or the Shares owned by such Stockholder are bound
or affected.
(b) The execution and delivery of this Agreement by such Stockholder do not,
and the performance of this Agreement by such Stockholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental authority, domestic or foreign, except for applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended, or the
HSR Act.
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SECTION 3.03. TITLE TO THE SHARES. As of the date hereof, such Stockholder
is the record and beneficial owner of the number of shares of Class A Common
Stock and/or Class B Common Stock set forth beneath such Stockholder's name on
the signature page hereof. Such Shares are all the securities of the Company
owned, either of record or beneficially, by such Stockholder. The Shares owned
by such Stockholder are owned free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreements, limitations on
such Stockholder's voting rights, charges and other encumbrances of any nature
whatsoever. Except as provided in this Agreement and the Irrevocable Proxy, such
Stockholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares owned by such Stockholder. At the
Closing, such Stockholder will deliver good and valid title to such
Stockholder's Shares free and clear of any pledge, lien, security interest,
charge, claim, equity, option, proxy, voting restriction, right of first refusal
or other limitation on disposition or encumbrance of any kind, other than
pursuant to this Agreement. Upon delivery of such Stockholder's Shares and
payment of the Purchase Price therefor as contemplated herein, Parent will
receive good, valid and marketable title to such Shares, free and clear of any
pledge, lien, security interest, charge, claim, equity, option, proxy, voting
restriction or encumbrance of any kind.
SECTION 3.04. PURCHASE FOR INVESTMENT. Such Stockholder is acquiring the
Parent Common Stock for his or her own account solely for the purpose of
investment and not with a view to, or for offer or sale in connection with, any
distribution thereof within the meaning of the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder (the "Securities
Act").
SECTION 3.05. BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of such Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to each Stockholder as follows:
SECTION 4.01. DUE ORGANIZATION, ETC. Parent is a corporation duly organized
and validly existing under the laws of the jurisdiction of its incorporation.
Parent has all necessary corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Parent have been duly authorized by all
necessary corporate action on the part of Parent. This Agreement has been duly
executed and delivered by Parent and, assuming its due authorization, execution
and delivery by the Stockholders, constitutes a legal, valid and binding
obligation of Parent, enforceable against Parent in accordance with its terms.
SECTION 4.02. NO CONFLICT; REQUIRED FILINGS AND CONSENTS. (a) The execution
and delivery of this Agreement by Parent do not, and the performance of this
Agreement by Parent will not, (i) conflict with or violate the Certificate of
Incorporation or By-laws of Parent, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to Parent or by which Parent or
any of its properties is bound or affected, or (iii) result in any breach of, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under or pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Parent is a party or by which it or any of its
properties is bound or affected, except in the case of clauses (ii) and (iii)
for any such conflicts, violations, breaches, defaults or other occurrences that
would not cause or create a material risk of non-performance or delayed
performance by Parent of its obligations under this Agreement.
(b) The execution and delivery of this Agreement by Parent do not, and the
performance of this Agreement by Parent will not, require any consent, approval,
authorization or permit of, or filing with or
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notification to, any governmental or regulatory authority, domestic or foreign,
except (i) for the HSR Act and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or materially delay the performance by Parent of its
obligations under this Agreement.
SECTION 4.03. INVESTMENT INTENT. The purchase of Shares from the Stockholder
pursuant to this Agreement is for the account of Parent solely for the purpose
of investment and not with a view to, or for offer or sale in connection with
any distribution thereof within the meaning of the Securities Act.
SECTION 4.04. VALIDITY OF PARENT STOCK. The shares of Parent Stock, when
issued and delivered in accordance with this Agreement, will have been duly
authorized and validly issued and will be fully paid and nonassessable.
SECTION 4.05. BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Parent.
ARTICLE V
COVENANTS OF THE STOCKHOLDERS
SECTION 5.01. NO DISPOSITION OR ENCUMBRANCE OF SHARES. Each Stockholder,
severally and not jointly, hereby agrees that, except as contemplated by this
Agreement, such Stockholder shall not (i) sell, transfer, tender, assign,
contribute to the capital of any entity, hypothecate, give or otherwise dispose
of, grant a proxy or power of attorney with respect to, deposit into any voting
trust, or create or permit to exist any security interest, lien, claim, pledge,
option, right of first refusal, agreement, limitation on such Stockholder's
voting rights, charge or other encumbrance of any nature whatsoever with respect
to, any of such Stockholder's Shares (or agree or consent to, or offer to do,
any of the foregoing), (ii) take any action that would make any representation
or warranty of such Stockholder herein untrue or incorrect in any material
respect or have the effect of preventing or disabling such Stockholder from
performing his or her obligations or, (iii) directly or indirectly, initiate,
solicit or encourage any person to take actions that could reasonably be
expected to lead to the occurrence of any of the foregoing.
SECTION 5.02. NO SOLICITATION OF TRANSACTIONS. Each Stockholder, severally
and not jointly, agrees that between the date of this Agreement and the date of
termination of the Merger Agreement, such Stockholder will not (a) solicit,
initiate, consider, encourage or accept any other proposals or offers from any
person relating to any Competing Transaction, or (b) participate in any
discussions, conversations, negotiations and other communications regarding, or
furnish to any other person any information with respect to, or otherwise
cooperate in any way, assist or participate in, facilitate or encourage any
effort or attempt by any other person to seek a Competing Transaction. Each
Stockholder immediately shall cease and cause to be terminated all existing
discussions, conversations, negotiations and other communications with any
persons conducted heretofore with respect to any of the foregoing. Each
Stockholder shall notify Parent promptly if any such proposal or offer, or any
inquiry or other contact with any person with respect thereto, is made and
shall, in any such notice to Parent, indicate in reasonable detail the identity
of the person making such proposal, offer, inquiry or contact and the terms and
conditions of such proposal, offer, inquiry or other contact.
SECTION 5.03. REGULATORY AND OTHER AUTHORIZATIONS; NOTICES AND
CONSENTS. Each Stockholder, severally and not jointly, agrees to use his or her
best efforts to obtain (or cause the Company and its subsidiaries to obtain) all
authorizations, consents, orders and approvals of all governmental authorities
and officials that may be or become necessary for the execution and delivery of,
and the performance of his or her obligations pursuant to, this Agreement and
will cooperate fully with Parent in promptly seeking to obtain all such
authorizations, consents, orders and approvals. Each party hereto agrees to make
an appropriate filing, if necessary, pursuant to the HSR Act with respect to the
transactions contemplated by
5
<PAGE>
this Agreement within five business days of the date hereof and to supply as
promptly as practicable to the appropriate governmental authorities any
additional information and documentary material that may be requested pursuant
to the HSR Act.
SECTION 5.04. CONFLICTS. No provision of this Agreement shall prevent or
interfere with any Stockholder's performance of his or her obligations, if any,
as an officer or director of the Company, including, without limitation, the
fulfillment of his or her fiduciary duties under Delaware law.
ARTICLE VI
COVENANTS OF PARENT
SECTION 6.01. SUBSEQUENT PROPOSALS. Parent covenants and agrees that if (i)
the Company terminates the Merger Agreement in accordance with Section 8.01(g)
thereof, (ii) Parent exercises the Option and (iii) the Company, notwithstanding
the termination of the Merger Agreement, has not taken any action or omitted to
take any action which could reasonably be expected to materially and adversely
affect the value of the Company when owned by Parent, then Parent will, within
120 days following the consummation of Parent's purchase of shares of Common
Stock under the Option, either (a) propose to the Board of Directors of the
Company a merger in which all shareholders of the Company receive consideration
of not less than $31.00 per share of Company Common Stock in the form of Shares
of Parent Stock or (b) make an offer to the Company's stockholders to acquire
all shares of Company Common Stock not owned by Parent and its subsidiaries for
a price of not less than $31.00 per share in the form of shares of Parent Stock;
in either such case with the opportunity to receive cash in the manner
contemplated by Section 2.03 of the Merger Agreement. Parent's obligation to
make such proposal or offer shall be subject to there not being any order,
statute, rule, regulation, executive order, stay, decree, judgment or injunction
enacted, entered, issued, promulgated or enforced by any Governmental Authority
or a court of competent jurisdiction which has the effect of making such
proposal or offer illegal or otherwise prohibiting consummation of such proposal
or offer. Parent's obligation to consummate any such proposal or offer shall be
subject to the satisfaction of the conditions set forth in Sections 7.01(c), (d)
and (e) and 7.02(b) and (c) of the Merger Agreement.
SECTION 6.02. REGISTRATION OF PARENT SHARES. To the extent that the
Stockholders are unable to sell the Shares of Parent Stock received in
connection with the purchase and sale of the Shares hereunder or pursuant to the
Merger, pursuant to Rule 144 or Rule 145 under the Securities Act or another
applicable exemption from the registration requirements of the Securities Act,
Parent, upon the written request of the Stockholders, shall use its reasonable
best efforts to cause the Shares designated in such notice to be registered
under the Securities Act in order to permit the proposed sale of such Shares.
Notwithstanding anything to the contrary in the immediately preceding sentence,
(i) Parent shall not be obligated to register any Shares designated in a notice
from the Stockholders if such Shares are not reasonably anticipated to have an
aggregate price to the public in excess of $15 million and (ii) the Stockholders
shall be entitled to submit no more than three notices to Parent in the three
year period following the Closing. In connection with any such registration,
Parent and Stockholders shall enter into an agreement on terms and conditions
customarily contained in registration rights agreements relating to
circumstances similar to those set forth herein.
ARTICLE VII
TERMINATION
SECTION 7.01. TERMINATION. The Options (including any Option as to which an
Exercise Notice has been delivered but for which the Closing has not occurred)
shall terminate in accordance with the provisions of Section 2.02(a). The
remaining provisions of this Agreement shall terminate, and no party shall have
any rights or obligations hereunder and this Agreement shall become null and
void and have no further effect upon the earliest of (a) the effective time of
the Merger, (b) the termination of the Merger
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Agreement pursuant to Section 8.01(b)(iii) thereof, (c) the date of termination
of the Merger Agreement pursuant to Section 8.01(d) thereof by the Company in
connection with a Terminating Parent Breach and (d) the date of termination of
the Merger Agreement pursuant to Section 8.01(b)(i) or (ii) thereof. Nothing in
this Section 7.01 shall relieve any party of liability for any breach of this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
this Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent possible.
SECTION 8.02. FURTHER ASSURANCES. Each Stockholder and Parent will execute
and deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
SECTION 8.03. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 8.04. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Parent and the Stockholders with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, between Parent and the Stockholders with respect to the subject matter
hereof.
SECTION 8.05. AMENDMENT; WAIVER. This Agreement may not be amended except by
an instrument in writing signed by all the parties hereto. Any party to this
Agreement may (a) extend the time for the performance of any of the obligations
or other acts of the other party, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document delivered by the other party pursuant hereto or (c) waive compliance
with any of the agreements or conditions of the other party contained herein.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any party to assert any of its
rights hereunder shall not constitute a waiver of any of such rights.
SECTION 8.06. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in any Delaware state or federal court.
SECTION 8.07. EXPENSES. Except as otherwise specified in this Agreement, all
costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
7
<PAGE>
SECTION 8.08. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 7.08):
(a) if to any Stockholder, Addressed to such Stockholder:
c/o Greenwich Air Services, Inc.
4590 N.W. 36th Street
Miami, Florida 33152
Telecopy: (305) 526-7005
Attention: Chief Executive Officer
with a copy to:
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.
153 East 53rd Street
New York, New York 10022
Telecopy: (212) 223-7161
Attention: Steven A. Weiss, Esq.
(b) if to Parent:
General Electric Company
3135 Easton Turnpike
Fairfield, Connecticut 06431
Telecopy: (203) 373-3008
Attention: Vice President and Senior Counsel--Transactions
with copies to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telecopy: (212) 848-7179
Attention: Stephen R. Volk, Esq. and John A. Marzulli, Jr., Esq.
and
General Electric Company
One Neumann Way
Mail Drop J104
Evendale, Ohio 45215-6301
Telecopy: (513) 243-5096
Attention: Vice President and General Counsel
SECTION 8.09. PUBLIC ANNOUNCEMENTS. Except as may be required by applicable
law, no party to this Agreement shall make, or cause to be made, any press
release or public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other party, and the parties shall cooperate as to
the timing and contents of any such press release or public announcement.
SECTION 8.10. HEADINGS. The descriptive headings contained in this Agreement
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
8
<PAGE>
SECTION 8.11. ASSIGNMENT. This Agreement may not be assigned by operation of
law or otherwise without, in the case of an assignment by Parent, the written
consent of each Stockholder (which consent may be granted or withheld in the
sole discretion of any Stockholder, and in the case of an assignment by any
Stockholder, the written consent of Parent (which consent may be granted or
withheld in the sole discretion of Parent), except that the Parent may assign
this Agreement to an affiliate of the Parent without the consent of any
Stockholder, provided that no such assignment shall relieve Parent of its
obligations hereunder if such assignee does not perform such obligations.
SECTION 8.12. NO THIRD PARTY BENEFICIARIES. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other person any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
SECTION 8.13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
9
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
/s/ EUGENE P. CONESE
--------------------------------------
Name: Eugene P. Conese
Shares of Class A
Common Stock: 3,205,332
Shares of Class B
Common Stock: 2,588,238
/s/ EUGENE P. CONESE, JR.
--------------------------------------
Name: Eugene P. Conese, Jr.
Shares of Class A
Common Stock: 178,594
Shares of Class B
Common Stock: 178,594
/s/ ANNA MAY CONESE
--------------------------------------
Name: Anna May Conese
Shares of Class A
Common Stock: 262,696
Shares of Class B
Common Stock: 262,696
/s/ EUGENE P. CONESE
--------------------------------------
Name: Eugene P. Conese, as voting
trustee
Shares of Class A
Common Stock: 262,696
Shares of Class B
Common Stock: 262,696
GENERAL ELECTRIC COMPANY
By: /s/ WILLIAM J. VARESCHI
--------------------------------------
Name: William J. Vareschi
Title: Vice President
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 721 of the New York Business Corporation Law ("NYBCL") provides
that, in addition to indemnification provided in Article 7 of the NYBCL, a
corporation may indemnify a director or officer by a provision contained in the
certificate of incorporation or bylaws or by a duly authorized resolution of its
stockholders or directors or by agreement, PROVIDED THAT no indemnification may
be made to or on behalf of any director or officer if a judgment or other final
adjudication adverse to the director or officer establishes that his acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action, or that such director or officer
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
Section 722(a) of the NYBCL provides that a corporation may indemnify a
director or officer, made or threatened to be made, a party to any action other
than a derivative action, whether civil or criminal, against judgments, fines,
amounts paid in settlement and reasonable expenses actually and necessarily
incurred as a result of such action, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or not opposed to,
the best interests of the corporation and, in criminal actions or proceedings,
in addition, had no reasonable cause to believe that his conduct was unlawful.
Section 722(c) of the NYBCL provides that a corporation may indemnify a
director or officer, made or threatened to be made, a party in a derivative
action, against amounts paid in settlement and reasonable expenses actually and
necessarily incurred by him in connection with the defense or settlement of such
action, or in connection with an appeal therein if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be in, or
not opposed to, the best interests of the corporation, except that no
indemnification will be available under Section 722(c) of the NYBCL in respect
of (1) a threatened or pending action which is settled or otherwise disposed of,
or (2) any claim as to which such director or officer shall have been adjudged
liable to the corporation, unless and only to the extent that the court in which
the action was brought, or, if no action was brought, any court of competent
jurisdiction, determines upon application, that, in view of all the
circumstances of the case, the director or officer is fairly and reasonably
entitled to indemnity for such portion of the settlement amount and expenses as
the court deems proper.
Section 723 of the NYBCL specifies the manner in which payment of
indemnification under Section 722 of the NYBCL or indemnification permitted
under Section 721 of the NYBCL may be authorized by the corporation. It provides
that indemnification by a corporation is mandatory in any case in which the
director or officer has been successful, whether on the merits or otherwise, in
defending an action. In the event that the director or officer has not been
successful or the action is settled, indemnification must be authorized by the
appropriate corporate action as set forth in Section 723.
Section 724 of the NYBCL provides that, upon application by a director or
officer, indemnification may be awarded by a court to the extent authorized
under Section 722 and Section 723 of the NYBCL. Section 725 of the NYBCL
contains certain other miscellaneous provisions affecting the indemnification of
directors and officers.
Section 726 of the NYBCL authorizes a corporation to purchase and maintain
insurance to indemnify (1) a corporation for any obligation which it incurs as a
result of the indemnification of directors and officers under the provisions of
Article 7 of the NYBCL, (2) directors and officers in instances in which they
may be indemnified by a corporation under the provisions of Article 7 of the
NYBCL, and (3) directors and officers in instances in which they may not
otherwise be indemnified by a corporation under such section, provided the
contract of insurance covering such directors and officers provides, in a manner
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acceptable to the New York State Superintendent of Insurance, for a retention
amount and for co-insurance.
Section 6 of the Restated Certificate of Incorporation, as amended, of the
Registrant provides in part as follows:
A person who is or was a director of the corporation shall have no
personal liability to the corporation or its stockholders for damages for
any breach of duty in such capacity except that the foregoing shall not
eliminate or limit liability where such liability is imposed under the
Business Corporation Law of the State of New York.
Article XI of the bylaws, as amended, of GE provides, in part, as follows:
The Company shall, to the fullest extent permitted by applicable law
as the same exists or may hereafter be in effect, indemnify any person
who is or was or has agreed to become a director or officer of the
Company and who is or was made or threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Company to procure a
judgment in its favor and an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership,
joint venture, trust, employee benefit plan or other enterprise, which
such person is serving, has served or has agreed to serve in any capacity
at the request of the Company, by reason of the fact that he or she is or
was or has agreed to become a director or officer of the Company, or is
or was serving or has agreed to serve such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid or to
be paid in settlement, taxes or penalties, and costs, charges and
expenses, including attorney's fees, incurred in connection with such
action or proceeding or any appeal therein, PROVIDED, HOWEVER, that no
indemnification shall be provided to any such person if a judgment or
other final adjudication adverse to the director or officer establishes
that (i) his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and, in either case, were material to
the cause of action so adjudicated, or (ii) he or she personally gained
in fact a financial profit or other advantage to which he or she was not
legally entitled. The benefits of this Paragraph A shall extend to the
heirs and legal representatives of any person entitled to indemnification
under this paragraph.
The Registrant has purchased certain liability insurance for its officers
and directors as permitted by Section 727 of the NYBCL.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following is a list of Exhibits included as part of this
Registration Statement. The Registrant agrees to furnish supplementally a copy
of any omitted exhibit or schedule to the Commission upon request.
<TABLE>
<C> <S>
*2.1 Agreement and Plan of Merger, dated March 9, 1997, among GE, Merger Sub and Greenwich
(included as Annex I to the Proxy Statement/Prospectus).
*4.1 Form of Common Stock Certificate of the Registrant.
*5.1 Opinion of Robert E. Healing as to the legality of the securities being registered.
*8.1 Opinion of Shearman & Sterling as to the United States federal income tax
consequences of the Merger.
*8.2 Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel as to the United
States federal income tax consequences of the Merger.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of KPMG Peat Marwick LLP.
*23.3 Consent of Robert E. Healing (included in Exhibit 5.1 to this Registration
Statement).
*23.4 Consent of Shearman & Sterling (included in Exhibit 8.1 to this Registration
Statement).
*23.5 Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel (included in Exhibit
8.2 to this Registration Statement).
*23.6 Consent of Salomon Brothers Inc.
*24.1 Powers of Attorney.
*99.1 Stock Option and Voting Agreement, dated March 9, 1997, between GE and Greenwich
(included as Annex III to the Proxy Statement/Prospectus).
*99.2 Form of proxy card to be mailed to stockholders of Greenwich.
*99.3 Form of Chairman and Chief Executive Officer's Letter to the stockholders of
Greenwich.
*99.4 Form of Notice of Special Meeting of Stockholders to the stockholders of Greenwich.
*99.5 Form of Election.
*99.6 Opinion of Salomon Brothers Inc (included as Annex II to the Proxy
Statement/Prospectus).
(b) Not applicable.
(c) The opinion of Salomon Brothers Inc (included as Annex III to the Proxy Statement/
Prospectus).
</TABLE>
- ------------------------
* Items marked with an asterisk are filed herewith.
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
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<PAGE>
(ii) To reflect in the Proxy Statement/Prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total dollar
amount of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (Section230.424(b) of this chapter)
if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) (1) The undersigned Registrant hereby undertakes that:
(i) Prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this
Registration Statement, by any person or party who is deemed to be an
underwriter within the meaning of Rule 145(c), the issuer undertakes that
such reoffering prospectus will contain the information called for by the
applicable registration form with respect to reofferings by persons who
may be deemed underwriters, in addition to the information called for by
the other items of the applicable form.
(2) The Registrant undertakes that every prospectus (i) that is filed
pursuant to the paragraph immediately preceding, or (ii) that purports to
meet the requirements of section 10(a)(3) of the Securities Act and is used
in connection with an offering of securities subject to Rule 415
(Section230.415 of this chapter), will be filed as a part of an amendment to
the Registration Statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with
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the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
(e) The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Proxy
Statement/Prospectus pursuant to Item 4, 10(b), 11, or 13 of this Form S-4,
within one business day of receipt of such requests, and to send the
incorporated documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the effective
date of the Registration Statement through the date of responding to the
requests.
(f) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Fairfield,
State of Connecticut, on July 7, 1997.
GENERAL ELECTRIC COMPANY
BY: /S/ BENJAMIN W. HEINEMAN, JR.
-----------------------------------------
Benjamin W. Heineman, Jr.
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
NAME TITLE DATE
- ------------------------------ --------------------------- -------------------
* Vice Chairman of the Board, July 7, 1997
- ------------------------------ Executive Officer and
Paolo Fresco Director
* Vice Chairman of the Board, July 7, 1997
- ------------------------------ Executive Officer and
John D. Opie Director
* Vice President and July 7, 1997
- ------------------------------ Comptroller (Principal
Philip D. Ameen Accounting Officer)
* Director July 7, 1997
- ------------------------------
D. Wayne Calloway
* Director July 7, 1997
- ------------------------------
Silas S. Cathcart
* Director July 7, 1997
- ------------------------------
Claudio X. Gonzalez
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NAME TITLE DATE
- ------------------------------ --------------------------- -------------------
* Director July 7, 1997
- ------------------------------
Gertrude G. Michelson
* Director July 7, 1997
- ------------------------------
Sam Nunn
* Director July 7, 1997
- ------------------------------
Roger S. Penske
* Director July 7, 1997
- ------------------------------
Barbara Scott Preiskel
* Director July 7, 1997
- ------------------------------
Frank H.T. Rhodes
* Director July 7, 1997
- ------------------------------
Andrew C. Sigler
* Director July 7, 1997
- ------------------------------
Douglas A. Warner III
*By: /s/ PHILIP D. AMEEN
-------------------------
Philip D. Ameen
ATTORNEY-IN-FACT
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
- -----------
<C> <S>
*2.1 Agreement and Plan of Merger, dated March 9, 1997, among GE, Merger Sub and Greenwich (included as Annex
I to the Proxy Statement/Prospectus).
*4.1 Form of Common Stock Certificate of the Registrant.
*5.1 Opinion of Robert E. Healing as to the legality of the securities being registered.
*8.1 Opinion of Shearman & Sterling as to the United States federal income tax consequences of the Merger.
*8.2 Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel as to the United States federal income
tax consequences of the Merger.
*23.1 Consent of Deloitte & Touche LLP.
*23.2 Consent of KPMG Peat Marwick LLP.
*23.3 Consent of Robert E. Healing (included in Exhibit 5.1 to this Registration Statement).
*23.4 Consent of Shearman & Sterling (included in Exhibit 8.1 to this Registration Statement).
*23.5 Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel (included in Exhibit 8.2 to this
Registration Statement).
*23.6 Consent of Salomon Brothers Inc.
*24.1 Powers of Attorney.
*99.1 Stock Option and Voting Agreement, dated March 9, 1997, between GE and Greenwich (included as Annex III
to the Proxy Statement/Prospectus).
*99.2 Form of proxy card to be mailed to stockholders of Greenwich.
*99.3 Form of Chairman and Chief Executive Officer's Letter to the stockholders of Greenwich.
*99.4 Form of Notice of Special Meeting of Stockholders to the stockholders of Greenwich.
*99.5 Form of Election.
*99.6 Opinion of Salomon Brothers Inc (included as Annex II to the Proxy Statement/Prospectus).
</TABLE>
- ------------------------
*Items marked with an asterisk are filed herewith.
<PAGE>
YN
INCORPORATED OF THE STATE
UNDER THE LAWS OF NEW YORK.
GENERAL ELECTRIC COMPANY
SEE REVERSE AS TO
ABBREVIATIONS
CUSIP 369604 10 3
This Certifies That
- -------------------------------------------------------------------------------
is the owner of
FULL-PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK
of General Electric Company transferable in person or by duly
authorized attorney on the books of the Company upon surrender of
this certificate properly endorsed. This certificate is not valid
until countersigned by the Transfer Agent and registered by the
Registrar. Witness the seal of the Company and the signatures of
the duly authorized officers.
<PAGE>
AUTHORIZED SHARES
The Company will furnish to any shareholder without charge, upon request
addressed to its executive office or any of its transfer offices, a full
statement of the designation, relative rights, preferences and limitations of
the shares of each authorized class, and of each series of preferred shares
authorized to be issued, so far as the same may have been fixed, and a
statement of the authority of the board of directors to designate and fix the
relative rights, preferences and limitations of other series.
The following abbreviations, when used in the inscription on the face of
this certificate shall be construed as though they were written in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
ADM Administrator(s) EX Executor(s) TEN ENT As tenants by the entireties
administratrix(ices) executrix(ices) TR Trustee(s)
COMM Committee(s) FBO For the benefit of UA Under Agreement
CONS Conservator(s) GDN Guardian UNIF GIFT MIN ACT Uniform Gifts to Minors Act
CUST Custodian JT TEN As joint tenants with right of UW Under last will and testatment
EST Estate survivorship and not as tenants
in common
TEN COM As tenants in common
</TABLE>
Additional abbreviations may also be used though not in the above list
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers into
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- ------------------------------------------------------------------------ Shares
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- ------------------------------------------------------------------------ Shares
of the Capital Stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- -----------------------------------------------------------------------Attorney
to transfer the said stock on the books of the within-named Company with full
power of substitution in the premises.
Dated:
------------------------------------------
X
------------------------------------
X
------------------------------------
NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVENT
PARTICULAR WITHOUT ALTERATION ON
ENLARGEMENT OR ANY CHANGE WHATEVER
SUCH SIGNATURE MUST BE GUARANTEED
BY AN ELIGIBLE GUARANTOR
INSTITUTION SUCH AS A COMMERCIAL
BANK TRUST COMPANY SECURITIES
BROKER/DEALER, CREDIT UNION OR A
SAVINGS ASSOCIATION PARTICIPATING
IN A MEDALLION PROGRAM APPROVED BY
THE SECURITIES TRANSFER
ASSOCIATION, INC.
(Affix Medallion Signature Guarantee Imprint)
<PAGE>
Exhibit 5.1
[GENERAL ELECTRIC LETTERHEAD]
July 7, 1997
Board of Directors
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Merger of GB Acquisition Corp. and
Greenwich Air Services, Inc.
Ladies and Gentlemen:
I have acted as Corporate Counsel for General Electric Company, a
New York corporation ("GE"), in connection with the Registration Statement on
Form S-4 (the "Registration Statement") being filed by GE on the date hereof
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended (the "Act"), with respect to such number of treasury shares of
Common Stock, par value $.16 per share (the "Common Stock"), of GE as shall
be determined by the product of (i) approximately 16,072,000 and (ii) $31.00
divided by the average of the last sales prices per share of Common Stock on
the New York Stock Exchange, Inc. Composite Tape for the 10 consecutive
trading days ending on the trading day which is five days prior to the
closing date of the Merger (as defined below), rounding the result to the
nearest one thousandth of a share. The Common Stock is being registered in
connection with the merger of Greenwich Air Services, Inc., a Delaware
corporation with and into GB Merger Corp., a Delaware corporation and a
wholly owned subsidiary of GE (the "Merger"). The Common Stock is described
in the Proxy Statement/Prospectus (the "Prospectus") included in the
Registration Statement, to which this opinion is an exhibit.
In that connection, I have examined the Registration Statement and
originals, or copies certified or otherwise identified to my satisfaction, of
such other documents, corporate records, certificates and other instruments
<PAGE>
as I have deemed necessary or appropriate for purposes of this opinion. In
such examination, I have assumed the genuineness of all signatures, the
authenticity of all documents, certificates, and instruments submitted to me
as originals and the conformity with the originals of all documents submitted
to me as copies.
Based upon the foregoing, I am of the opinion that the shares of
Common Stock to which the Registration Statement relates, when delivered as
described in the Prospectus, will be duly authorized, validly issued, fully
paid and nonassessable.
My opinion expressed herein is limited to the law of the State of
New York and the Federal law of the United States, and I do not express any
opinion herein concerning any other law.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to me under the heading "Legal
Matters" contained in the Prospectus.
Very truly yours,
Robert E. Healing, Esq.
Corporate Counsel
General Electric Company
<PAGE>
EXHIBIT 8.1
[LETTERHEAD OF SHEARMAN & STERLING]
July 7, 1997
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431-0001
Merger of Greenwich Air Services, Inc.
with and into
GB Merger Corporation
---------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to General Electric Company, a New
York corporation ("GE") in connection with (i) the proposed merger (the
"Merger") of Greenwich Air Services, Inc., a Delaware corporation
("Greenwich"), with and into GB Merger Corporation, a Delaware corporation
and a wholly-owned, directly held subsidiary of GE ("Merger Sub") pursuant to
the Agreement and Plan of Merger, dated as of March 9, 1997 (the "Merger
Agreement"), among GE, Greenwich and Merger Sub and (ii) the preparation and
filing of the Greenwich-GE Proxy Statement/Prospectus, dated June 13, 1997,
of Greenwich and GE. Unless otherwise defined, capitalized terms used herein
have the meaning assigned to them in the Merger Agreement.
In delivering our opinion, we have reviewed the Merger Agreement
and the documents attached as Exhibits thereto and have assumed that the
representations and warranties therein are true and correct and that the
parties have complied with and, if applicable, will comply with the covenants
contained therein. In addition, we have reviewed the Greenwich-GE Proxy
Statement/Prospectus and have assumed that the statements therein are and
will remain true, correct and complete. Any variation or difference in the
facts from those set forth or assumed either herein or in the Greenwich-GE
Proxy Statement/Prospectus may affect the conclusions stated herein. We have
also assumed that representations will be made by GE and Greenwich in letters
to us substantially in the forms of Exhibits 7.02(a) and (b) to the Merger
Agreement and have assumed that such representations will be true and
accurate as of the Effective Time. In addition, we have assumed that
adjustments pursuant to
<PAGE>
General Electric Company 2 July 7, 1997
Section 2.03(c) of the Merger Agreement will be made to ensure satisfaction
of the continuity of interest requirements under applicable federal income
tax principles relating to reorganizations under Section 368(a) of the Code.
Based upon the foregoing, in reliance thereon and subject thereto,
and based upon the Internal Revenue Code of 1986, as amended (the "Code"),
the Treasury Regulations promulgated thereunder, judicial decisions, revenue
rulings and revenue procedures of the Internal Revenue Service, and other
administrative pronouncements, all as in effect on the date hereof, and
assuming that the Merger and related transactions will take place in
accordance with the terms of the Merger Agreement, it is our opinion that:
1. The Merger will be treated for United States federal income
tax purposes as a reorganization qualifying under the provisions of Section
368(a) of the Code; and
2. Each of GE, Merger Sub and Greenwich shall be a party to the
reorganization within the meaning of Section 368(b).
It is also our opinion that each of the discussions in the
Greenwich-GE Proxy Statement/Prospectus under the captions "SUMMARY--THE
MERGER--Material Federal Income Tax Consequences" and "THE MERGER--Material
Federal Income Tax Consequences," insofar as each relates to matters of
United States federal income tax law, is a fair and accurate summary of such
matters. We express no opinion (i) as to whether such descriptions address
all of the United States federal income tax consequences of the Merger that
may be applicable to Greenwich, GE or any particular Greenwich stockholder or
(ii) as to the United States federal, state, local, foreign or other tax
consequences, other than as set forth in the Greenwich-GE Proxy
Statement/Prospectus under the captions "SUMMARY--THE MERGER--Material
Federal Income Tax Consequences" and "THE MERGER--Material Federal Income Tax
Consequences." There can be no assurance that contrary positions may not be
asserted by the Internal Revenue Service.
No opinion is expressed as to any matter not specifically addressed
above, including the accuracy of the representations or reasonableness of the
assumptions relied upon by us in rendering the opinion set forth above. Our
opinion is based on current United States federal income tax law and
administrative practice, and we do not undertake to advise you as to any
future changes in United States federal income tax law or administrative
practice that may affect our opinion unless we are specifically retained to
do so.
We consent to the filing of this opinion as an exhibit to the
Greenwich-GE Proxy Statement/Prospectus and to the reference to Shearman &
Sterling under the captions
<PAGE>
General Electric Company 3 July 7, 1997
"THE MERGER--Material Federal Income Tax Consequences" and "LEGAL MATTERS" in
the Greenwich-GE Proxy Statement/Prospectus.
Very truly yours,
SHEARMAN & STERLING
MKW/AFS
<PAGE>
EXHIBIT 8.2
[LETTERHEAD OF GREENBERG TRAURIG]
July 7, 1997
Greenwich Air Services, Inc.
4590 N.W. 36th Street, Building 23
Miami, FL 33122
Re: Merger of Greenwich Air Services, Inc. With And Into GB
Merger Corporation, a Wholly Owned Subsidiary of General
Electric Company
--------------------------------------------------------
Dear Ladies and Gentlemen:
We have acted as special counsel to Greenwich Air Services, Inc., a
Delaware corporation ("Greenwich"), in connection with (i) the proposed
merger (the "Merger") of Greenwich with and into GB Merger Corporation, a
Delaware corporation ("Merger Sub"), pursuant to the Agreement and Plan of
Merger, dated as of March 9, 1997 (the "Merger Agreement"), among GE,
Greenwich and Merger Sub and (ii) the preparation and filing of the
Greenwich-GE Proxy Statement/Prospectus, dated June 13, 1997. Unless
otherwise defined, capitalized terms used herein have the meaning assigned to
them in the Merger Agreement.
In delivering our opinion, we have reviewed the Merger Agreement
and the documents attached as Exhibits thereto and have assumed that the
representations and warranties therein are true and correct and that the
parties have complied with and, if applicable, will comply with the covenants
contained therein. In addition, we have reviewed the Greenwich-GE Proxy
Statement/Prospectus and have assumed that the statements therein are and
will remain true, correct and complete. Any variation or difference in the
facts from those set forth or assumed herein, in the Merger Agreement or in
the Greenwich-GE Proxy Statement/Prospectus may affect the conclusions stated
herein. We have also assumed that representations will be made by GE and
Greenwich in letters to us substantially in the forms of Exhibits 7.02(a) and
(b) to the Merger Agreement and have assumed that such representations will
be true and accurate as of the Effective Time. In addition, we have assumed
that adjustments pursuant to Section 2.03(c) of the Merger Agreement will be
made to ensure satisfaction of the continuity of interest requirements under
applicable federal income tax principles relating to reorganizations under
Section 368(a) of the Code.
Based upon the foregoing, in reliance thereon and subject thereto
and based upon the Internal Revenue Code of 1986, as amended (the "Code"),
the Treasury Regulations promulgated thereunder, judicial decisions, revenue
rulings and revenue procedures of the Internal Revenue Service, and other
administrative pronouncements, all as in effect on the date hereof, and
assuming that the Merger and related transactions will take place in
accordance with the terms of the Merger Agreement, it is our opinion that:
<PAGE>
Greenwich Air Services, Inc.
July 7, 1997
Page 2
1. The Merger will be treated for United States federal income
tax purposes as a reorganization qualifying under the provisions of Section
368(a) of the Code, and
2. Each of GE, Merger Sub and Greenwich shall be a party to the
reorganization within the meaning of Section 368(b).
It is our opinion that each of the discussions in the Greenwich-GE
Proxy Statement/Prospectus under the captions "SUMMARY - THE MERGER -
Material Federal Income Tax Consequences" and "THE MERGER - Material Federal
Income Tax Consequences," insofar as each relates to matters of United States
federal income tax law, is a fair and accurate summary of such matters. We
express no opinion (i) as to whether such descriptions address all of the
United States income tax consequences of the Merger that may be applicable to
Greenwich, GE or any particular Greenwich stockholder or (ii) as to the
United States federal, state, local, foreign or other tax consequences, other
than as set forth in the Greenwich - GE Proxy Statement/Prospectus under the
captions "SUMMARY - THE MERGER - Material Federal Income Tax Consequences" and
"THE MERGER - Material Federal Income Tax Consequences." There can be no
assurance that contrary positions may not be asserted by the Internal Revenue
Service.
No opinion is expressed as to any matter not specifically addressed
above, including the accuracy of the representations or reasonableness of the
assumptions relied upon by us in rendering the opinion set forth above. Our
opinion is based on current United States federal income tax law and
administrative practice, and we do not undertake to advise you as to any
future changes in the United States federal income tax law or administrative
practice that may affect our opinion unless we are specifically retained to
do so.
We consent to the filing of this opinion as an exhibit to the
Greenwich-GE Proxy Statement/Prospectus and to the reference to Greenberg,
Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., under the captions "THE
MERGER - Material Federal Income Tax Consequences" and "LEGAL MATTERS" in the
Greenwich-GE Proxy Statement/Prospectus.
Very truly yours,
GREENBERG, TRAURIG, HOFFMAN, LIPOFF, ROSEN &
QUENTEL, P.A.
CES/RPC/cb
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of General Electric Company on Form S-4 of our report dated December 19, 1996
appearing in the Annual Report on Form 10-K of Greenwich Air Services, Inc.
for the year ended September 30, 1996 and to the reference to us under the
heading "Experts" in the Proxy Statement/Prospectus which is part of this
Registration Statement.
Deloitte & Touche LLP
Miami, Florida
July 7, 1997
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
General Electric Company:
We consent to the incorporation by reference in the Registration Statement
on Form S-4 of General Electric Company of our report dated February 7, 1997
relating to the statement of financial position of General Electric Company
and consolidated affiliates as of December 31, 1996 and 1995 and the related
statements of earnings and cash flows for each of the years in the three-year
period ended December 31, 1996, and the related Schedule, which report
appears in the December 31, 1996 annual report on Form 10-K of General
Electric Company.
We also consent to the reference of our firm under the heading "Experts" in
the Registration Statement.
KPMG Peat Marwick LLP
Stamford, Connecticut
July 7, 1997
<PAGE>
Exhibit 23.6
[LETTERHEAD OF SALOMON BROTHERS INC]
CONSENT OF SALOMON BROTHERS INC
We hereby consent to the use of our opinion letter dated March 9, 1997 to
the Board of Directors of Greenwich Air Services, Inc. ("Greenwich"),
included as Annex III to the Proxy Statement/Prospectus of Greenwich which
forms part of the Registration Statement dated as of the date hereof on Form
S-4 relating to the proposed merger of Greenwich with and into GB Merger
Corp., a wholly-owned subsidiary of General Electric Company, and to the
references to such opinion therein.
In giving such consent, we do not admit and we hereby disclaim that we
come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder, nor do we thereby admit
that we are experts with respect to any part of such Registration Statement
within the meaning of the term "experts" as used in the Securities Act of
1933, as amended or the rules and regulations of the Securities and Exchange
Commission thereunder.
July 7, 1997
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ SILAS S. CATHCART
-------------------------------
Silas S. Cathcart
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing and Benjamin W. Heineman, Jr., and
each of them acting individually, his true and lawful attorneys-in-fact and
agents, each with power to act without the other and full power of
substitution, to execute, deliver and file, for and on his behalf, and in his
name, place and stead, in any and all capacities, a Registration Statement on
Form S-4 (or other appropriate form) for filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and any
other documents in support thereof or supplemental or amendatory thereto,
with respect to the registration of shares of General Electric Company Common
Stock, par value $.16 per share, pursuant to the merger of Greenwich Air
Services, Inc. with and into General Electric Company's wholly-owned
subsidiary, GB Merger Corp., hereby granting to such attorneys-in-fact and
each of them full power and authority to do and perform each and every act
and thing whatsoever as such attorney-in-fact or attorneys-in-fact may deem
necessary or advisable to carry out fully the intent of the forgoing as the
undersigned might or could do personally or in any and all capacities, hereby
ratifying and confirming all acts and things which such attorney-in-fact or
attorneys-in-fact may do or cause to be done by virtue of this power of
attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ PHILIP D. AMEEN
-------------------------------
Philip D. Ameen
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ ROGER S. PENSKE
-------------------------------
Roger S. Penske
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and Philip
D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 10th day of June, 1997.
/s/ D. WAYNE CALLOWAY
-------------------------------
D. Wayne Calloway
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ JOHN D. OPIE
-------------------------------
John D. Opie
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ PAOLO FRESCO
-------------------------------
Paolo Fresco
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and
perform each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done by
virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 10th day of June, 1967.
/s/ CLAUDIO X. GONZALEZ
---------------------------
Claudio X. Gonzalez
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, her true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on her
behalf, and in her name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and
perform each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done by
virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ GERTRUDE G. MICHELSON
---------------------------
Gertrude G. Michelson
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done by
virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 10th day of June, 1997.
/s/ SAM NUNN
-------------------------------
Sam Nunn
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, her true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on her
behalf, and in her name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 10th day of June, 1997.
/s/ BARBARA SCOTT PREISKEL
-------------------------------
Barbara Scott Preiskel
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental and
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ FRANK H.T. RHODES
-------------------------------
Frank H.T. Rhodes
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental and
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ ANDERW C. SIGLER
-------------------------------
Andrew C. Sigler
<PAGE>
POWER OF ATTORNEY
GENERAL ELECTRIC COMPANY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby
constitute and appoint Robert E. Healing, Benjamin W. Heineman, Jr. and
Philip D. Ameen, and each of them acting individually, his true and lawful
attorneys-in-fact and agents, each with power to act without the other and
full power of substitution, to execute, deliver and file, for and on his
behalf, and in his name, place and stead, in any and all capacities, a
Registration Statement on Form S-4 (or other appropriate form) for filing
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the registration of shares of General
Electric Company Common Stock, par value $.16 per share, pursuant to the
merger of Greenwich Air Services, Inc. with and into General Electric
Company's wholly-owned subsidiary, GB Merger Corp., hereby granting to such
attorneys-in-fact and each of them full power and authority to do and perform
each and every act and thing whatsoever as such attorney-in-fact or
attorneys-in-fact may deem necessary or advisable to carry out fully the
intent of the forgoing as the undersigned might or could do personally or in
any and all capacities, hereby ratifying and confirming all acts and things
which such attorney-in-fact or attorneys-in-fact may do or cause to be done
by virtue of this power of attorney.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
as of the 9th day of June, 1997.
/s/ DOUGLAS A. WARNER III
-------------------------------
Douglas A. Warner III
<PAGE>
GREENWICH AIR SERVICES, INC.
PROXY FOR SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON AUGUST 11, 1997.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF GREENWICH AIR
SERVICES, INC.
4590 NW 36TH STREET, BUILDING 23, MIAMI, FLORIDA 33122
The undersigned hereby appoints Eugene P. Conese, Sr. and Eugene P. Conese,
Jr., and each of them, as proxy or proxies of the undersigned, with full power
of substitution, to represent the undersigned and to vote all of the shares of
Class A common stock of Greenwich Air Services, Inc. which the undersigned is
entitled in any capacity to vote if personally present at the Special Meeting of
Stockholders of Greenwich Air Services, Inc. to be held at the Hotel Sofitel,
5800 Blue Lagoon Drive, Miami, Florida on Monday, August 11, 1997, at 10:00
a.m., local time, and at any and all adjournments and postponements thereof,
with respect to all matters set forth in the Proxy Statement/Prospectus dated
June 13, 1997, and all supplements and amendments thereto and, in their
discretion, upon all matters incident to the conduct of the Special Meeting and
all matters presented at the meeting but which are not known to the Board of
Directors at the time of solicitation of this proxy. The undersigned hereby
revokes any proxy or proxies heretofore given by the signer to vote at said
meeting or any adjournment thereof.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR PROPOSAL 1.
1. PROPOSAL TO ADOPT THE AGREEMENT AND PLAN OF MERGER, DATED MARCH 9, 1997,
AMONG GREENWICH AIR SERVICES, INC., GENERAL ELECTRIC COMPANY, AND GB
MERGER CORP.
FOR / / AGAINST / / ABSTAIN / /
(CONTINUED, AND TO BE SIGNED AND DATED, ON OTHER SIDE.)
<PAGE>
Shares represented by all properly executed proxies will be voted in
accordance with instructions appearing on the proxy and at the discretion of the
proxy holders as to any other matters that may properly come before, and all
matters incident to the conduct of, the Special Meeting of Stockholders. IN THE
ABSENCE OF SPECIFIC INSTRUCTIONS, PROXIES WILL BE VOTED FOR PROPOSAL 1 AND AT
THE DISCRETION OF THE PROXY HOLDERS AS TO ANY OTHER MATTER THAT MAY PROPERLY
COME BEFORE THE SPECIAL MEETING OF STOCKHOLDERS. The undersigned hereby
acknowledges receipt of the Notice of Special Meeting of Stockholders and of the
Proxy Statement/ Prospectus (with all enclosures and attachments) dated July 8,
1997, relating to the meeting.
Please mark, sign, date and return this proxy in the enclosed white postage
prepaid envelope as soon as possible, even if you plan to attend the Special
Meeting.
Dated: ______________________ , 1997
____________________________________
____________________________________
Signature(s)
NOTE: Please sign this proxy exactly
as your name appears hereon. Joint
owners should each sign personally.
Attorneys, administrators, trustees,
guardians and others signing in a
representative capacity should
indicate this capacity. An
authorized officer may sign on
behalf of a corporation and should
indicate the name of the corporation
and his or her capacity.
<PAGE>
GREENWICH AIR SERVICES, INC.
4590 NW 36TH STREET, BUILDING 23
MIAMI, FLORIDA 33122
July 8, 1997
Dear Fellow Stockholder:
You are cordially invited to attend the special meeting of stockholders of
Greenwich Air Services, Inc., to be held on Monday, August 11, 1997, at 10:00
a.m. at the Hotel Sofitel, 5800 Blue Lagoon Drive, Miami, Florida.
On March 9, 1997, Greenwich agreed to be acquired by General Electric in a
merger that values your Greenwich shares at $31.00 per share. In this merger,
you will be entitled to receive, in exchange for each share of Greenwich Common
Stock you own, a fraction of a share of General Electric common stock that will
be calculated based on the market value of GE common stock just prior to the
completion of the merger. Instead of GE Common Stock, you may choose to receive
$31.00 in cash per share of Greenwich Class A and Class B Common Stock. In order
to ensure that the merger qualifies as a tax-free reorganization for federal
income tax purposes, no more than approximately 22% of the approximately $271
million total consideration paid to public stockholders in the merger will be
paid in cash.
At the special meeting, you will be asked to adopt the Merger Agreement. A
majority of the outstanding shares of Greenwich Class A Common Stock entitled to
vote at the special meeting must vote for adoption of the Merger Agreement for
the acquisition to be completed. Holders of shares of Greenwich Class B Common
Stock are not entitled to vote on the merger.
I, my wife and my son own 52% of the outstanding shares of Greenwich Class A
Common Stock. As a condition to GE's willingness to enter into the Merger
Agreement, we have agreed to vote all of our shares in favor of the merger. In
addition, GE owns 9.8% of the outstanding shares of Greenwich Class A Common
Stock. Accordingly, adoption of the Merger Agreement at the special meeting is
assured.
If the Merger Agreement is adopted and all other conditions described in the
Merger Agreement have been met or, where permissible, waived, the merger is
expected to occur as soon as possible after the special meeting.
AFTER CAREFUL CONSIDERATION, YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY
DETERMINED THAT THE MERGER IS FAIR TO AND IN THE BEST INTERESTS OF GREENWICH AND
ITS STOCKHOLDERS AND UNANIMOUSLY RECOMMENDS THAT YOU VOTE TO ADOPT THE MERGER
AGREEMENT.
Under Delaware law, you are not entitled to appraisal rights in connection
with the merger.
The accompanying Proxy Statement/Prospectus provides a detailed description
of the proposed merger and its effect on you as a stockholder and on Greenwich.
I urge you to read the enclosed materials carefully. Whether or not you plan to
attend the special meeting, and regardless of the number of shares you own,
please complete, sign and date your proxy card and promptly return it in the
envelope provided.
Sincerely,
Eugene P. Conese, Sr.
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
Neither the Securities and Exchange Commission nor any state securities
regulators have approved the shares of GE Common Stock to be issued under this
Proxy Statement/Prospectus or determined if this Proxy Statement/Prospectus is
accurate or adequate. Any representation to the contrary is a
criminal offense.
This Proxy Statement/Prospectus is dated July 8, 1997 and is first being
mailed to stockholders on or about July 9, 1997.
<PAGE>
GREENWICH AIR SERVICES, INC.
4590 NW 36TH STREET, BUILDING 23
MIAMI, FLORIDA 33122
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON AUGUST 11, 1997
TO THE CLASS A STOCKHOLDERS OF GREENWICH AIR SERVICES, INC.:
A Special Meeting of Stockholders (the "Special Meeting") of Greenwich Air
Services, Inc., a Delaware corporation ("Greenwich"), will be held on Monday,
August 11, 1997, at the Hotel Sofitel, 5800 Blue Lagoon Drive, Miami, Florida,
commencing at 10:00 a.m., for the following purposes:
(1) To consider and vote on a proposal to adopt the Agreement and Plan
of Merger, dated March 9, 1997 (the "Merger Agreement"), by and among
Greenwich, General Electric Company, a New York corporation ("GE"), and GB
Merger Corp., a Delaware corporation and a wholly owned subsidiary of GE
("Merger Sub"), a copy of which is attached as Annex I to the Proxy
Statement/Prospectus accompanying this notice. The Merger Agreement provides
for the merger of Greenwich with and into Merger Sub (the "Merger"),
resulting in Greenwich becoming a wholly owned subsidiary of GE. In the
Merger, each Greenwich stockholder will be entitled to receive, in exchange
for each share of Greenwich Class A Common Stock, par value $.01 per share
(the "Greenwich Class A Common Stock"), and each share of Greenwich Class B
Common Stock, par value $.01 per share (the "Greenwich Class B Common Stock"
and, together with the Greenwich Class A Common Stock, the "Greenwich Common
Stock"), held by such stockholder, that number of shares of common stock,
par value $.16 per share, of GE (the "GE Common Stock") as shall be
determined by dividing $31.00 by the Average GE Share Price (as defined
below) (the "Stock Consideration"); PROVIDED that Greenwich stockholders may
elect to receive from GE cash in an amount equal to $31.00 per share of
Greenwich Common Stock (the "Cash Consideration"). The "Average GE Share
Price" is defined as the average of the last sale price per share of GE
Common Stock on The New York Stock Exchange, Inc. Composite Tape for the 10
consecutive trading days ending on the trading day which is five days prior
to the closing date of the Merger. Under the Merger Agreement, approximately
22%, or $60.1 million of the total merger consideration allocable to
Greenwich Common Stock owned by stockholders other than the immediate
members of the Conese family, certain officers and directors of Greenwich,
and GE and its subsidiaries (the "Public Stockholders"), is available to be
paid in cash to the Public Stockholders. If all Public Stockholders were to
elect all cash, then each Public Stockholder would receive approximately 78%
of his total merger consideration in GE Common Stock and approximately 22%
in cash. To the extent that Greenwich public stockholders elect to receive
more than 78% of their total merger consideration in GE Common Stock, all
Public Stockholders electing cash would receive the amount of cash they
requested. The percentage of Cash Consideration is subject to further
adjustment to the extent necessary to enable the requisite tax opinions to
be delivered.
(2) To consider and transact such other business as may properly be
brought before the Special Meeting or any adjournment thereof.
The affirmative vote of the holders of a majority of the outstanding shares
of Greenwich Class A Common Stock entitled to vote at the Special Meeting is
required to adopt the Merger Agreement. Holders of shares of Greenwich Class B
Common Stock do not have voting rights and are not entitled to vote at the
Special Meeting. As of July 7, 1997, Eugene P. Conese, Sr., the Chairman of the
Board and Chief Executive Officer of Greenwich, Eugene P. Conese, Jr. the
President and Chief Operating Officer of Greenwich, and Anna May Conese, the
spouse of Eugene P. Conese, Sr. and mother of Eugene P. Conese, Jr.
(collectively, the "Conese Stockholders"), owned and held the power to vote
<PAGE>
3,651,749 shares of Greenwich Class A Common Stock, representing 52% of such
outstanding shares. The Conese Stockholders have agreed, among other things, to
vote all of their shares of Greenwich Class A Common Stock in favor of the
Merger Agreement at the Special Meeting. In addition, GE owns 689,000 shares of
Greenwich Class A Common Stock, representing 9.8% of such outstanding shares,
which it intends to vote in favor of the Merger. Accordingly, adoption of the
Merger Agreement at the Special Meeting is assured.
AFTER CAREFUL CONSIDERATION, YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY
DETERMINED THAT THE CONSIDERATION TO BE PAID PURSUANT TO THE MERGER IS FAIR TO
AND IN THE BEST INTERESTS OF GREENWICH AND ITS STOCKHOLDERS. THE BOARD OF
DIRECTORS OF GREENWICH HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND
UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR ADOPTION OF THE MERGER AGREEMENT AT THE
SPECIAL MEETING. You are urged to read the accompanying Proxy
Statement/Prospectus carefully for a description of the Merger Agreement.
Under Delaware law, holders of Greenwich Common Stock are not entitled to
appraisal rights in connection with the Merger.
Only holders of Greenwich Class A Common Stock of record at the close of
business on June 16, 1997 will be entitled to notice of, and to vote at, the
Special Meeting. A list of the holders of Greenwich Class A Common Stock
entitled to vote at the Special Meeting will be open for examination, during
ordinary business hours, at the location of the Special Meeting for 10 days
preceding the Special Meeting.
By Order of the Board of Directors,
MICHAEL A. BUCCI
SECRETARY
Miami, Florida
July 8, 1997
Whether or not you plan to attend the Special Meeting, please complete,
sign, date and return the enclosed proxy card promptly in the enclosed
postage-paid envelope. Stockholders who attend the Special Meeting may revoke
their proxies and vote in person if they desire.
CERTIFICATES FOR YOUR GREENWICH COMMON STOCK SHOULD BE SENT TO CHASEMELLON
SHAREHOLDER SERVICES, L.L.C. AT THIS TIME ONLY IF YOU ARE MAKING A CASH
ELECTION. PLEASE DO NOT ENCLOSE YOUR CERTIFICATES WITH YOUR PROXY CARDS.
2
<PAGE>
FORM OF ELECTION/LETTER OF TRANSMITTAL
TO ACCOMPANY CERTIFICATE FOR SHARES OF
COMMON STOCK
OF
GREENWICH AIR SERVICES, INC.
WHEN SUBMITTED PURSUANT TO AN ELECTION
IN CONNECTION WITH THE PROPOSED
MERGER OF GREENWICH AIR SERVICES, INC. WITH
A WHOLLY OWNED SUBSIDIARY OF
GENERAL ELECTRIC COMPANY
This Form of Election/Letter of Transmittal is to be completed by
stockholders of Greenwich Air Services, Inc. ("Greenwich") either if stock
certificates (the "Share Certificates") for shares of Greenwich Class A Common
Stock, par value $.01 per share (the "Greenwich Class A Common Stock"), and
Greenwich Class B Common Stock, par value $.01 per share (the "Greenwich Class B
Common Stock" and, together with the Greenwich Class A Common Stock, the
"Greenwich Common Stock" or "Shares"), are to be forwarded herewith or if
delivery of Shares are to be made by book entry transfer to the account of
ChaseMellon Shareholder Services, L.L.C. at The Depository Trust Company or the
Philadelphia Depository Trust Company (each, a "Book-Entry Transfer Facility"
and, collectively, the "Book-Entry Transfer Facilities") pursuant to book entry
transfer procedures, or if a guarantee of delivery of such Share Certificates,
and all other required documents, are to be delivered to the Exchange Agent by
5:00 p.m., New York City time, on the last business day prior to the date on
which the closing of the proposed merger of Greenwich with and into GB Merger
Corp., a wholly owned subsidiary of General Electric Company (the "Merger"),
occurs, unless extended, in order to effect an Election (as defined herein) in
connection with the Merger.
THE EXCHANGE AGENT IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY OVERNIGHT:
ChaseMellon Shareholder
Services, L.L.C
Reorganization Department
85 Challenger Road,
Mail Drop-Reorganization
Ridgefield Park, NJ 07660
BY MAIL: BY FACSIMILE: BY HAND:
ChaseMellon Shareholder (for eligible institutions only) ChaseMellon Shareholder
Services, L.L.C. Services, L.L.C.
Reorganization Department (201) 329-8953 Reorganization Department
P.O. Box 3301 CONFIRM BY TELEPHONE: 120 Broadway
South Hackensack, NJ 07606 (201) 296-4860 13th Floor
New York, NY 10271
</TABLE>
------------------------
DELIVERY OF THIS FORM OF ELECTION/LETTER OF TRANSMITTAL TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OR TELEX
TRANSMISSION OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
YOU MUST SIGN THIS FORM OF ELECTION/LETTER OF TRANSMITTAL WHERE INDICATED BELOW
AND COMPLETE THE SUBSTITUTE FORM W-9 PROVIDED BELOW.
The instructions accompanying this Form of Election/Letter of Transmittal
should be read carefully before this Form of Election/Letter of Transmittal is
completed.
THE DEADLINE FOR SUBMITTING THIS FORM OF ELECTION/LETTER OF TRANSMITTAL,
TOGETHER WITH YOUR SHARE CERTIFICATES, IS 5:00 P.M., NEW YORK CITY TIME,
ON THE LAST BUSINESS DAY PRIOR TO THE DATE ON WHICH THE
CLOSING OF THE MERGER IS HELD, UNLESS EXTENDED.
Greenwich stockholders whose Share Certificates are not immediately
available or who cannot deliver their Share Certificates and other documents
required hereby to the Exchange Agent prior to 5:00 p.m., New York City time, on
the date which is the last business day prior to the date of the closing of the
Merger, unless extended (the "Election Deadline"), and who wish to make an
Election must do so pursuant to the guaranteed delivery procedure described
below. See Instruction A2.
GREENWICH STOCKHOLDERS MAY CHOOSE TO MAKE A CASH ELECTION WITH RESPECT TO
ALL OR ANY PORTION OF THE SHARES HELD BY SUCH HOLDER.
<PAGE>
/ / CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE
EXCHANGE AGENT'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES AND
COMPLETE THE FOLLOWING:
Name of Electing Institution: ______________________________________________
Check Box of Applicable Book-Entry Transfer Facility:
/ / The Depository Trust Company / / The Philadelphia Depository Trust
Company
Account Number ___________ Transaction Code Number ___________
TYPE OF ELECTION (SEE INSTRUCTIONS B1 AND B2)
CERTIFICATES ENCLOSED (ATTACH SEPARATE SIGNED LIST IF NECESSARY)
<TABLE>
<CAPTION>
NO
CASH ELECTION
ELECTION
(NUMBER
NAME(S) AND ADDRESS(ES) OF REGISTERED CERTIFICATE (NUMBER OF OF
HOLDER(S) NUMBER SHARES) SHARES)
<S> <C> <C> <C>
Total
Shares
</TABLE>
For each Share converted into cash, the holder will receive a cash payment of
$31.00. For each share of Greenwich Common Stock converted into shares of Common
Stock of General Electric Company ("GE Common Stock"), the holder will receive
that number of shares of GE Common Stock as shall be determined by dividing
$31.00 by the Average GE Share Price (as defined below). No fractional shares of
GE Common Stock will be issued and cash in lieu thereof will be distributed.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE INSTRUCTIONS SET FORTH
IN THIS FORM OF ELECTION/LETTER OF TRANSMITTAL CAREFULLY.
Ladies and Gentlemen:
In connection with the merger (the "Merger") of Greenwich with and into GB
Merger Corp., a wholly owned subsidiary of General Electric Company ("GE"), the
undersigned hereby submits the Share Certificates evidencing shares of Greenwich
Common Stock listed above, or hereby transfers ownership of such Share
Certificates on the account books maintained by a Book-Entry Transfer Facility,
and elects, subject to the limitations set forth below, to have each share of
Greenwich Common Stock represented by
2
<PAGE>
such Share Certificates converted into (i) that number of shares of common
stock, par value $0.16 per share (the "GE Common Stock") of GE (the "Stock
Consideration") as shall be determined by dividing $31.00 by the average of the
last sale price per share of GE Common Stock on the New York Stock Exchange
Composite Tape for the ten consecutive trading days ending on the trading day
which is five days prior to the date on which the merger occurs (the "Average GE
Share Price"), or (ii) $31.00 in cash, without interest thereon (the "Cash
Consideration"). It is understood that the following election is subject to (i)
the terms of the Agreement and Plan of Merger, dated March 9, 1997 (the "Merger
Agreement"), attached as Annex I to the Proxy Statement/Prospectus and (ii) the
accompanying instructions. GE's acceptance of Shares delivered pursuant to this
Form of Election/Letter of Transmittal will constitute a binding agreement
between the undersigned and GE upon the terms and subject to the conditions of
(i) and (ii) listed above.
ALTHOUGH THERE CAN BE NO ASSURANCE THAT A HOLDER OF SHARES WILL RECEIVE THE
CONSIDERATION THAT HE OR SHE ELECTS AS TO ANY OF HIS OR HER SHARES, A HOLDER OF
SHARES HAVING A PREFERENCE TO RECEIVE THE CASH CONSIDERATION FOR HIS OR HER
SHARES SHOULD MAKE AN ELECTION. NONE OF GE, GREENWICH, THE GREENWICH BOARD OF
DIRECTORS OR THE GE BOARD OF DIRECTORS MAKES ANY RECOMMENDATION AS TO WHETHER
STOCKHOLDERS SHOULD ELECT TO RECEIVE CASH CONSIDERATION IN THE MERGER. EACH
STOCKHOLDER MUST MAKE HIS OR HER OWN DECISION WITH RESPECT TO SUCH ELECTION. IF
A STOCKHOLDER MAKES NO ELECTION OR MAKES A NON-ELECTION, HE OR SHE WILL RECEIVE
THE STOCK CONSIDERATION IN THE MERGER AS DESCRIBED IN THE PROXY
STATEMENT/PROSPECTUS.
Failure of a holder of Shares to complete properly and to return this Form
of Election/Letter of Transmittal together with his or her Share Certificates,
or with an appropriate guarantee of delivery of such Share Certificates, to the
Exchange Agent by the Election Deadline, or a holder of Shares who cannot
complete the procedure for delivery by book-entry transfer on a timely basis,
and who fails to comply with the election procedures described in the Proxy
Statement/Prospectus and this Form of Election/Letter of Transmittal (including
the instructions hereto) will cause such holder's Shares to be converted into
the right to receive the Stock Consideration without regard to the preference of
such holder of Shares.
The undersigned authorizes and instructs you, as Exchange Agent, to deliver
the Share Certificates listed above and to receive on behalf of the undersigned,
in exchange for the Shares represented thereby, any check for the cash or any
certificate for the shares of GE Common Stock issuable in the Merger. If
certificates are not delivered herewith, there is furnished a guarantee of
delivery of such Share Certificates from an Eligible Institution (as defined
herein).
The undersigned represents and warrants that the undersigned has full power
and authority to surrender the Share Certificate(s) surrendered herewith or
covered by a guarantee of delivery, free and clear of any liens, claims, charges
or encumbrances whatsoever. The undersigned understands and acknowledges that
delivery of the Share Certificate(s) shall pass only after the Exchange Agent
has actually received the Share Certificate(s). All questions as to the
validity, form and eligibility of any Election and surrender of Share
Certificates hereunder shall be determined by GE (which may delegate power in
whole or in part to the Exchange Agent), and such determinations shall be final
and binding. The undersigned, upon request, shall execute and deliver all
additional documents deemed by the Exchange Agent or GE to be necessary or
desirable to complete the sale, assignment, transfer, cancellation and
retirement of the Shares delivered herewith. No authority herein conferred or
agreed to be conferred shall be affected by, and all such authority shall
survive, the death or incapacity of the undersigned. All obligations of the
undersigned hereunder shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
The undersigned understands that the purpose of the election procedure is to
permit holders of Shares to express their preferences for the type of
consideration they wish to receive in the Merger,
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provided that the election to receive cash will be subject to adjustment such
that if all public stockholders were to elect to receive cash for all of their
shares, then each public stockholder would receive 78% of his merger
consideration in GE Common Stock and 22% in cash, or if fewer than all public
stockholders were to elect cash, each public stockholder who elected to receive
cash would receive more than 22% of his merger consideration in cash. In
addition, the aggregate cash consideration to be paid in the Merger is subject
to further adjustment to the extent necessary to permit tax counsel to render
the tax opinion(s) contemplated in the Merger Agreement. Accordingly, there can
be no assurance that any holder of Greenwich Common Stock will receive the form
of consideration that such holder elects with respect to any of its Shares.
The undersigned understands that in lieu of any fractional share of GE
Common Stock, GE will pay to each former stockholder of Greenwich who otherwise
would be entitled to receive a fractional share of GE Common Stock an amount in
cash determined by multiplying (i) the fractional share interest to which such
holder would otherwise be entitled by (ii) the Average GE Share Price. The
undersigned hereby acknowledges that he or she has reviewed the discussion in
the Proxy Statement/Prospectus contained under the heading "THE MERGER," which
contains more complete descriptions of the foregoing matters.
Unless otherwise indicated in the box entitled "Special Payment
Instructions," please issue any check and register any certificate for shares of
GE Common Stock in the name of the registered holder(s) of the Shares appearing
above under "Type of Election." Similarly, unless otherwise indicated in the box
entitled "Special Delivery Instructions," please mail any check and any
certificate for shares of GE Common Stock to the registered holder(s) of the
Shares at the address(es) of the registered holder(s) appearing above under
"Type of Election." In the event that the boxes entitled "Special Payment
Instructions" and "Special Delivery Instructions" are both completed, please
issue any check and any certificate for shares of GE Common Stock in the name(s)
of, and mail such check and such certificate to, the person(s) so indicated.
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<TABLE>
<S> <C>
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS A1 AND C3) (SEE INSTRUCTIONS A1 AND C3)
To be completed ONLY if the check is to be made To be completed ONLY if the check or the
payable to, or the certificates for shares of GE certificates for shares of GE Common Stock are to be
Common Stock are to be registered in, the name of mailed to someone other than the undersigned or to
someone other than the undersigned. the undersigned at an address other than that shown
under "Description of Shares."
Name
(Please Print) Mail checks and/or certificate to:
Address
Name
(Please Print)
(Zip Code) Address
Taxpayer Identification or Social Security Number
(See Substitute Form W-9 on reverse side)
(Zip Code)
</TABLE>
<TABLE>
<S> <C>
SIGNATURE
SIGN HERE:
Name(s):
(Please Print)
Name(s):
Signature(s) of Owner(s)
Must be signed by registered owner(s) exactly as name(s)
appear(s) on stock certificate(s) or by person(s) (Area Code and Telephone Number)
authorized to become registered holder(s) by
certificates and documents transmitted herewith. If (Payee Taxpayer Identification or Social Security
signature is by attorney, executor, administrator, Number)
trustee or guardian or others acting in a fiduciary Dated:
capacity, set forth full title and see Instruction C2.
SIGNATURE GUARANTEE
If you have filled out the Special Payment Instructions Name of
above, you must have your signatures guaranteed. (See Guarantor
Instructions A1 and C3.)
Date Signature(s)
Guaranteed:
(Authorized signature required)
</TABLE>
IMPORTANT TAX INFORMATION
In order to ensure compliance with federal income tax requirements, each
holder of Shares is requested to provide the Exchange Agent with his correct
Taxpayer Identification Number and to certify whether he or she is subject to
backup federal income tax withholding by completing and signing the Substitute
form W-9 below. (See instruction C6 and accompanying Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9.)
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<TABLE>
<S> <C> <C>
PAYER'S NAME: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
SUBSTITUTE PART I--PLEASE PROVIDE YOUR
TIN IN THE BOX AT RIGHT AND SOCIAL SECURITY NUMBER
CERTIFY BY SIGNING AND OR
DATING BELOW.
EMPLOYER IDENTIFICATION
NUMBER
(IF AWAITING TIN,
WRITE "APPLIED FOR")
</TABLE>
<TABLE>
<S> <C>
FORM W-9 PART II--For Payees Exempt from Backup Withholding, see the enclosed
DEPARTMENT OF THE TREASURY GUIDELINES and complete as instructed therein.
INTERNAL REVENUE SERVICE CERTIFICATION--Under penalties of perjury, I certify that:
PAYER'S REQUEST FOR (1) The number shown on this form is my correct Taxpayer Identification
TAXPAYER IDENTIFICATION Number (or a Taxpayer Identification Number has not been issued to me and
NUMBER (TIN) either (a) I have mailed or delivered an application to receive a
Taxpayer Identification Number to the appropriate IRS or Social
Security Administration office or (b) I intend to mail or deliver an
application in the near future. I understand that if I do not provide
a Taxpayer Identification Number within sixty (60) days, 31% of all
reportable payments made to me thereafter will be withheld until I
provide a number), and
(2) I am not subject to backup withholding either because I have not been
notified by the IRS that I am subject to backup withholding, as a result
of failure to report all interest or dividends, or the IRS has
notified me that I am no longer subject to backup withholding.
CERTIFICATE INSTRUCTIONS--You must cross out item (2) above if you have
been notified by the IRS that you are subject to backup withholding
because of underreporting interest or dividends on your tax return.
However, if after being notified by the IRS that you were subject to
backup withholding you received another notification from the IRS that
you are no longer subject to backup withholding, do not cross out item
(2). (Also see instructions in the enclosed GUIDELINES.)
SIGNATURE: DATE: , 199
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY CASH PAYMENTS MADE TO YOU PURSUANT TO THE MERGER. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
INSTRUCTIONS
A. FORM OF ELECTION/LETTER OF TRANSMITTAL
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Form of Election/Letter of Transmittal must be guaranteed by
a firm which is a bank, broker, dealer, credit union, savings association, or
other entity that is a member in good standing of the Securities Transfer
Agent's Medallion Program (each, an "Eligible Institution"). No signature
guarantee is required on this Form of Election/Letter of Transmittal if this
Form of Election/Letter of Transmittal is signed by the registered holder(s) of
Shares delivered herewith, unless such holder(s) has completed either the box
entitled "Special Delivery Instructions" or the box entitled "Special Payment
Instructions" on the reverse hereof. If a Share Certificate is registered in the
name of a person other than the signer of this Form of Election/ Letter of
Transmittal, or if checks or certificates are to be payable to the order of or
registered in the name of a person other than the registered holder(s), then the
Certificate must be endorsed or accompanied by appropriate stock powers, in
either case signed exactly as the name(s) of the registered holder(s) appear(s)
on the Certificate, with the signature(s) on such Certificate or stock powers
guaranteed as described above.
2. DELIVERY OF FORM OF ELECTION AND CERTIFICATES. This Form of
Election/Letter of Transmittal is to be used either if Share Certificates are to
be forwarded herewith, if Shares are to be delivered by book-entry transfer
pursuant to book-entry transfer procedures or if delivery of Shares is to be
guaranteed. Share Certificates evidencing all delivered Shares or confirmation
of a book-entry transfer of such Shares, if such
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<PAGE>
procedure is available, into the Exchange Agent's account at one of the
Book-Entry Transfer Facilities pursuant to book-entry transfer procedures
together with a properly completed and duly executed Form of Election/Letter of
Transmittal (or facsimile thereof) with any required signature guarantees (or,
in the case of a book-entry transfer, an Agent's Message, as defined below) and
any other documents required by this Form of Election/Letter of Transmittal,
must be received by the Exchange Agent at its address set forth on the reverse
hereof prior to the Election Deadline. If Share Certificates are forwarded to
the Exchange Agent in multiple deliveries, a properly completed and duly
executed Form of Election/Letter of Transmittal must accompany each such
delivery. The term "Agent's Message" means a message, transmitted by a
Book-Entry Transfer Facility to, and received by, the Exchange Agent and forming
a part of a book-entry confirmation, which states that such Book-Entry Transfer
Facility has received an express acknowledgment from the participant in such
Book-Entry Transfer Facility delivering the Shares, that such participant has
received and agrees to be bound by the terms of this Form of Election/Letter of
Transmittal and that GE may enforce such agreement against the participant.
Record holders of Shares who are nominees only may submit a separate Form of
Election/Letter of Transmittal for each beneficial owner for whom such holder is
a nominee; provided, however, that at the request of the Exchange Agent, such
holder shall certify to the satisfaction of the Exchange Agent that such record
holder holds such Greenwich Common Stock as nominee for the beneficial owner
thereof. Each beneficial owner for which a Form of Election/Letter of
Transmittal is submitted will be treated as a separate holder of Greenwich
Common Stock.
Greenwich stockholders whose Forms of Election/Letters of Transmittal and
Share Certificates are not received prior to the Election Deadline or who cannot
complete the procedure for delivery by book-entry transfer on a timely basis
will not be entitled to specify their preference for cash in the Merger.
THE METHOD OF DELIVERY OF THIS FORM OF ELECTION/LETTER OF TRANSMITTAL, SHARE
CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF THE
STOCKHOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY
THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
3. INADEQUATE SPACE. If the space provided herein under "Type of Election"
is inadequate, the Share Certificate numbers, the number of Shares evidenced by
such Share Certificates and the number of Shares delivered should be listed on a
separate schedule and attached hereto.
4. CHANGE OR REVOCATION OF ELECTION. Any holder of Share Certificates may,
at any time prior to the Election Deadline, change his or her Election by
submitting to the Exchange Agent a properly completed and signed revised Form of
Election/Letter of Transmittal and all required additional documents, provided
that the Exchange Agent receives such revised Form of Election/Letter of
Transmittal and other necessary documents prior to the Election Deadline. Any
holder of Shares may, at any time prior to the Election Deadline, revoke his or
her prior valid Election by written notice received by the Exchange Agent prior
to the Election Deadline or by written withdrawal prior to the Election Deadline
of his or her Share Certificates previously deposited with the Exchange Agent.
5. AUTOMATIC REVOCATIONS OF ELECTIONS. All Elections will be revoked
automatically if the Exchange Agent is notified in writing by GE that the Merger
Agreement has been terminated, and Share Certificates will be promptly returned
to the persons who have submitted them.
B. ELECTION AND ALLOCATION PROCEDURES
1. ELECTIONS. By completing the appropriate box above and completing this
Form of Election/Letter of Transmittal in accordance with the instructions
hereto, a Greenwich stockholder will be permitted to make a cash election (an
"Election") with respect to all or any portion of the shares held by such
holder. If all public stockholders were to elect to receive cash for all of
their shares, then each public stockholder
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<PAGE>
would receive 78% of his merger consideration in GE Common Stock and 22% in
cash. If fewer than all public stockholders were to elect cash, each public
stockholder who elected to receive cash would receive more than 22% of his
merger consideration in cash.
Each Greenwich stockholder should consult his or her own financial advisor
and tax advisor as to the specific consequences of the Merger and Election to
such stockholder.
No alternative, conditional or contingent Elections will be accepted.
2. CASH ELECTIONS AND ALLOCATIONS. If all public stockholders were to
elect to receive cash for all of their shares, then each public stockholder
would receive 78% of his merger consideration in GE Common Stock and 22% in
cash. If fewer than all public stockholders were to elect cash, each public
stockholder who elected to receive cash would receive more than 22% of his
merger consideration in cash.
ELECTION DEADLINE. The deadline for submitting this Form of Election/Letter
of Transmittal to the Exchange Agent is 5:00 p.m., New York City time, on the
date which is the last business day prior to the closing of the Merger, unless
extended. GE may extend the Election Deadline to a later date so long as such
later date is no later than the date on which the Merger is consummated. When
the specific date of the Election Deadline is determined, and if the Election
Deadline is extended, GE will announce such determination or extension in a news
release delivered to the Dow Jones News Service.
Failure of a holder of Shares to complete properly and to return this Form
of Election/Letter of Transmittal together with his or her Share Certificates,
or with an appropriate guarantee of delivery of Share Certificates, to the
Exchange Agent by the Election Deadline, or a holder of Shares who cannot
complete the procedure for delivery by book-entry transfer on a timely basis,
and who fails to comply with the election procedures described in the Proxy
Statement/Prospectus and this Form of Election/Letter of Transmittal (including
the instructions hereto) will cause each of such holder's Shares to be treated
as a "Non-Electing Share" in the Merger and converted into the right to receive
the Stock Consideration and/ or the Cash Consideration without regard to the
preference of such holder of Shares.
***
A more complete description of the election and allocation procedures is set
forth in the Proxy Statement/Prospectus under "THE MERGER--Election Procedures."
All Elections are subject to compliance with the election procedures provided
for in the Merger Agreement. In connection with making any Election, a Greenwich
stockholder should read carefully, among other matters, the description and
statement of the information contained in the Proxy Statement/Prospectus under
"THE MERGER-- Material Federal Income Tax Consequences."
C. RECEIPT OF MERGER CONSIDERATION, SIGNATURES, SPECIAL INSTRUCTIONS, TAXES AND
ADDITIONAL COPIES
1. RECEIPT OF MERGER CONSIDERATION. As soon as practicable after the
Effective Time checks and certificates representing shares of GE Common Stock
will be distributed to those holders who are entitled thereto and who have
surrendered their Share Certificates to the Exchange Agent for cancellation.
2. SIGNATURES ON FORM OF ELECTION/LETTER OF TRANSMITTAL; STOCK POWERS AND
ENDORSEMENTS. If this Form of Election/Letter of Transmittal is signed by the
registered holder(s) of the Shares delivered herewith, the signature(s) must
correspond with the name(s) as written on the face of the Share Certificates
evidencing such Shares without altercation, enlargement or any other change
whatsoever.
If any Share delivered herewith is owned of record by two or more persons,
all such persons must sign this Form of Election/Letter of Transmittal.
If any of the Shares delivered herewith are registered in the names of
different holders, it will be necessary to complete, sign and submit as many
separate Forms of Election/Letters of Transmittal as there are different
registrations of such Shares.
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<PAGE>
If this Form of Election/Letter of Transmittal is signed by the registered
holder(s) of the Shares delivered herewith, no endorsements of Certificates or
separate stock powers are required, unless checks or certificates evidencing
shares of GE Common Stock are to be payable to the order of, or registered in
the name of, a person other than the registered holder(s), in which case the
Share Certificate(s) evidencing the Shares delivered herewith must be endorsed
or accompanied by appropriate stock powers, in either case signed exactly as the
name(s) of the registered holder(s) appear(s) on such Share Certificate(s).
Signatures on such Share Certificate(s) and stock powers must be guaranteed by
an Eligible Institution.
If this Form of Election/Letter of Transmittal or any Share Certificate or
stock power is signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, such person should so indicate when signing, and
proper evidence satisfactory to GE of such person's authority so to act must be
submitted.
3. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If any check or certificates
evidencing shares of GE Common Stock are to be payable to the order of, or
registered in the name of, a person other than the person(s) signing this Form
of Election/Letter of Transmittal or if such checks or such certificates are to
be sent to someone other than the person(s) signing this Form of Election/Letter
of Transmittal or to the person(s) signing this Form of Election/Letter of
Transmittal but at an address other than that shown in the box entitled "Type of
Election," the appropriate boxes on this Form of Election/Letter of Transmittal
must be completed.
4. STOCK TRANSFER TAXES. GE will bear the liability for any state stock
transfer taxes applicable to the issuance and delivery of checks and
certificates in connection with the Merger, provided, however, that if any such
check or certificate is to be issued in a name other than that in which the
Share Certificates surrendered in exchange therefor are registered, it shall be
a condition of such exchange that the person requesting such exchange shall pay
the amount of any stock transfer taxes (whether imposed on the registered holder
or such person), payable on account of the transfer to such person, to the
Exchange Agent or satisfactory evidence of the payment of such taxes, or
exemption therefrom, shall be submitted to the Exchange Agent before any such
check or certificate is issued. EXCEPT AS PROVIDED IN THIS INSTRUCTION C4, IT
WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE
CERTIFICATES EVIDENCING THE SHARES DELIVERED HEREWITH.
5. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to the Exchange Agent at its respective address or telephone
number set forth above. Additional copies of the Proxy Statement/Prospectus,
this Form of Election/Letter of Transmittal, and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
obtained from the Exchange Agent or from brokers, dealers, commercial banks or
trust companies.
6. SUBSTITUTE FORM W-9. Under the federal income tax law, a stockholder
who delivers Shares is required by law to provide the Exchange Agent (as payer)
with such stockholder's correct Taxpayer Identification Number ("TIN") on
Substitute Form W-9 below. If such stockholder is an individual, the TIN is such
stockholder's social security number. If the Exchange Agent is not provided with
the correct TIN, the stockholder may be subject to a $50 penalty imposed by the
Internal Revenue Service and payments of Cash Consideration that are made to
such stockholder with respect to Shares purchased pursuant to the Merger may be
subject to backup withholding of 31%. In addition, if a stockholder makes a
false statement that results in no imposition of backup withholding and there
was no reasonable basis for such a statement, a $500 penalty may also be imposed
by the Internal Revenue Service. Certain stockholders (including, among others,
all corporations and certain foreign individuals) are not subject to these
backup withholding and reporting requirements. In order for a foreign individual
to qualify as an exempt recipient, such individual must submit a statement,
signed under penalties of perjury, attesting to such individual's exempt status.
Forms of such statements can be obtained from the Exchange Agent. See the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional instructions. A stockholder should consult
his or her tax advisor as to such stockholder's
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<PAGE>
qualification for an exemption from backup withholding and the procedure for
obtaining such exemption. If backup withholding applies with respect to a
stockholder, the Exchange Agent is required to withhold 31% of any cash payments
made to such stockholder. Backup withholding is not an additional tax. Rather,
the tax liability of persons subject to backup withholding will be reduced by
the amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
To prevent backup withholding on any cash payments that are made to a
stockholder with respect to Shares delivered herewith, the stockholder is
required to notify the Exchange Agent of such stockholder's correct TIN by
completing the Substitute Form W-9 below certifying (a) that the TIN provided on
Substitute Form W-9 is correct (or that such stockholder is awaiting a TIN) and
(b) that (i) such stockholder has not been notified by the Internal Revenue
Service that such stockholder is subject to backup withholding as a result of a
failure to report all interest or dividends or (ii) the Internal Revenue Service
has notified such stockholder that such stockholder is no longer subject to
backup withholding.
The stockholder is required to give the Exchange Agent the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the name
of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance
concerning which number to report. If the stockholder has not been issued a TIN
and has applied for a number or intends to apply for a number in the near
future, such stockholder should write "Applied For" in the space provided for
the TIN in Part I, and sign and date the Substitute Form W-9. If "Applied For"
is written in Part I and the Exchange Agent is not provided with a TIN within 60
days, the Exchange Agent will withhold 31% of all cash payments to such
stockholder until a TIN is provided to the Exchange Agent.
7. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificate(s)
representing Shares has been lost, destroyed or stolen, the Greenwich
stockholder should promptly notify American Stock Transfer & Trust Company, the
transfer agent for Greenwich, at (212) 936-5100. The Greenwich stockholder will
then be instructed as to the steps that must be taken in order to replace the
Share Certificate(s). This Form of Election/Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost or
destroyed Share Certificates have been followed.
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GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
IRS INSTRUCTIONS
(SECTION REFERENCES ARE TO THE INTERNAL REVENUE CODE.)
PURPOSE OF FORM-- A person who is required to file an information return with
the Internal Revenue Service (the "IRS") must obtain your correct taxpayer
identification number ("TIN") to report income paid to you, real estate
transactions, mortgage interest you paid, the acquisition or abandonment of
secured property, or contributions you made to an individual retirement account
("IRA"). Use Substitute Form W-9 to furnish your correct TIN to the requester
(the person asking you to furnish your TIN), and when applicable (1) to certify
that the TIN you are furnishing is correct (or that you are waiting for a number
to be issued), (2) to certify that you are not subject to backup withholding,
and (3) to claim exemption from backup withholding if you are an exempt payee.
Furnishing your correct TIN and making the appropriate certifications will
prevent certain payments from being subject to backup withholding.
NOTE: IF A REQUESTER GIVES YOU A FORM OTHER THAN A W-9 TO REQUEST YOUR TIN, YOU
MUST USE THE REQUESTER'S FORM.
HOW TO OBTAIN A TIN
If you do not have a TIN, apply for one immediately. To apply, get Form SS-5,
for a Social Security Number Card (for individuals), from your local office of
the Social Security Administration or Form SS-4, Application for Employer
Identification Number (for businesses and all other entities), from your local
Internal Revenue Service office.
To complete Substitute Form W-9 if you do not have a TIN, and have applied
for one or intend to apply for one in the near future, write "Applied For" in
the space for the TIN in Part I, sign and date the form, and give to the
requester. If the requester does not receive your TIN within 60 days, backup
withholding, if applicable, will begin and continue until you furnish your TIN
to the requester. For reportable interest or dividend payments, the payer must
exercise one of the following options concerning backup withholding during this
60-day period. (For other reportable payments, the payer must backup withhold
until you furnish the payer with your TIN.) Under option (1), a payer must
backup withhold on any withdrawals you make from your account after 7 business
days after the requester receives this form back from you. Under option (2), the
payer must backup withhold on any reportable interest or dividend payments made
to your account, regardless of whether you make any withdrawals. The backup
withholding under option (2) must begin no later than 7 business days after the
requester receives this form back. Under option (2), the payer is required to
refund the amounts withheld if your certified TIN is received within the 60-day
period and you were not otherwise subject to backup withholding during that
period.
NOTE: WRITING " APPLIED FOR" ON THE FORM MEANS THAT YOU HAVE ALREADY APPLIED
FOR A TIN OR THAT YOU INTEND TO APPLY FOR ONE IN THE NEAR FUTURE.
As soon as you receive your TIN, complete another Substitute Form W-9,
include your TIN, sign and date the form and give it to the requester.
WHAT IS BACKUP WITHHOLDING? --Persons making certain payments to you after 1992
are required to withhold and pay to the IRS 31% of such payments under certain
conditions. This is called "backup withholding." Payments that could be subject
to backup withholding include interest, dividends, broker and barter exchange
transactions, rents, royalties, nonemployee compensation, and certain payments
from fishing boat operators, but do not include real estate transactions.
If you give the requester your correct TIN, make the appropriate
certifications, and report all your taxable interest and dividends on your tax
return, your payments will not be subject to backup withholding. Payments you
receive will be subject to backup withholding if:
(1) You do not furnish your TIN to the requester, or
(2) The IRS notifies the requester that you furnished an incorrect TIN, or
(3) You are notified by the IRS that you are subject to backup withholding
because you failed to report all your interest and dividends on your tax return
(for reportable interest and dividends only), or
(4) You fail to certify to the requester that you are not subject to backup
withholding under (3) above (for reportable interest and dividend accounts
opened after 1983 only), or
(5) You fail to certify your TIN. This applies only to reportable interest,
dividends, broker or barter exchange accounts opened after 1983, or broker
accounts considered inactive in 1983.
Except as explained in (5) above, other reportable payments are subject to
backup withholding only if (1) or (2) above applies. Certain payees and payments
are exempt from backup withholding and information reporting. See PAYEES AND
PAYMENTS EXEMPT FROM BACKUP WITHHOLDING, below, and EXEMPT PAYEES AND PAYMENTS
under SPECIFIC INSTRUCTIONS, on page 2, if you are an exempt payee.
PAYEES AND PAYMENTS EXEMPT FROM BACKUP WITHHOLDING
The following is a list of payees exempt from the backup withholding and for
which no information reporting is required. For interest and dividends, all
listed payees are exempt except item (9). For broker transactions, payees listed
in (1) through (13) and a person registered under the Investment Advisors Act of
1940 who regularly acts as a broker are exempt. Payments subject to reporting
under Sections 6041 and 6041A are generally exempt from backup withholding only
if made to payees described in items (1) through (7), except that a corporation
that provides medical and health care services or bills and collects payments
for such services is not exempt from backup withholding or information
reporting. Only payees described in items (2) through (6) are exempt from backup
withholding for barter exchange instructions, patronage dividends, and payments
by certain fishing boat operators.
(1) A corporation.
(2) An organization exempt from tax under Section 501(a), or an individual
retirement plan (IRA), or a custodial account under Section 403(b)(7).
(3) The United States or any of its agencies or instrumentalities.
(4) A state, the District of Columbia, a possession of the United States,
or any of their political subdivisions or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies, or
instrumentalities.
(6) An international organization or any of its agencies or
instrumentalities.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the U.S.
or a possession of the U.S.
(9) A futures commission merchant registered with the Commodity Future
Trading Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the
Investment Company Act of 1940.
(12) A common trust fund operated by a bank under Section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed in
the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee List.
(15) A trust exempt from tax under Section 664 or described in Section 4947.
Payments of dividends and patronage dividends generally not subject to
backup withholding also include the following:
- Payments to nonresident aliens subject to withholding under Section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S.
and that have at least one nonresident partner.
- Payments of patronage dividends not paid in money.
- Payments made by certain foreign organizations.
Payments of interest generally not subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. NOTE: YOU MAY
BE SUBJECT TO BACKUP WITHHOLDING IF THIS INTEREST IS $600 OR MORE AND IS
PAID IN THE COURSE OF THE PAYER'S TRADE OR BUSINESS AND YOU HAVE NOT
PROVIDED YOUR CORRECT TIN TO THE PAYER.
- Payments of tax-exempt interest (including exempt-interest dividends under
Section 852).
- Payments described in Section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under Section 1451.
- Payments made by certain foreign organizations.
- Mortgage interest paid by you.
Payments that are not subject to information reporting are also not subject
to backup withholding. For details, see Sections 6041, 6041A(a), 6042, 6044,
6045, 6049, 6050A, and 6050N, and the regulations under those Sections.
<PAGE>
PENALTIES
FAILURE TO FURNISH TIN --If you fail to furnish your correct TIN to a
requester, you are subject to a penalty of $50 for each such failure unless your
failure is due to reasonable cause and not to willful neglect.
CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING --If you make a
false statement with no reasonable basis that results in no imposition of backup
withholding, you are subject to a penalty of $500.
CRIMINAL PENALTY FOR FALSIFYING INFORMATION --Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
MISUSE OF TINS --If the requester discloses or uses TINs in violation of
Federal law, the requester may be subject to civil and criminal penalties.
SPECIFIC INSTRUCTIONS
NAME --If you are an individual, you must generally provide the name shown on
your social security card. However, if you have changed your last name, for
instance, due to marriage, without informing the Social Security Administration
of the name change, please enter your first name and both the last name shown on
your social security card and your new last name.
If you are a sole proprietor, you must furnish your individual name and
either your SSN or EIN. You may also enter your business name. Enter your
name(s) as shown on your social security card and/ or as it was used to apply
for your EIN on Form SS-4.
SIGNING THE CERTIFICATION--
(1) INTEREST, DIVIDEND, AND BARTER EXCHANGE ACCOUNTS OPENED BEFORE 1984 AND
BROKER ACCOUNTS THAT WERE CONSIDERED ACTIVE DURING 1983--You are not required to
sign the certification, however, you may do so. You are required to provide your
correct TIN.
(2) INTEREST, DIVIDEND, BROKER AND BARTER EXCHANGE ACCOUNTS THAT WERE CONSIDERED
INACTIVE DURING 1983--You must sign the certification or backup withholding will
apply. If you are subject to backup withholding and you are merely providing
your correct TIN to the requester, you must cross out item (2) in the
certification before signing the form.
(3) REAL ESTATE TRANSACTIONS--You must sign the certification. You may cross out
item (2) of the certification if you wish.
(4) OTHER PAYMENTS--You are required to furnish your correct TIN, but you are
not required to sign the certification unless you have been notified of an
incorrect TIN. Other payments include payments made in the course of the
requesters trade or business for rents, royalties, goods (other than bills for
merchandise), medical and health care services, payments to a nonemployee for
services (including attorney and accounting fees), and payments to certain
fishing boat crew members.
(5) MORTGAGE INTEREST PAID BY YOU, ACQUISITION OR ABANDONMENT OF SECURED
PROPERTY, OR IRA CONTRIBUTIONS--You are required to furnish your correct TIN,
but you are not required to sign the certifications.
(6) EXEMPT PAYEES AND PAYMENTS--If you are exempt from backup withholding, you
should complete this form to avoid possible erroneous backup withholding. Enter
your correct TIN in Part 1, write "EXEMPT" in the block in Part II, sign and
date the form. If you are a nonresident alien or foreign entity not subject to
backup withholding, give the requestor a complete Form W-8, Certificate of
Foreign Status.
(7) TIN "APPLIED FOR."--Follow the instructions under HOW TO OBTAIN A TIN, on
page 1, write "Applied For" in the space for the TIN in Part I of the Substitute
Form W-9 and sign and date this form.
SIGNATURE --For a joint account, only the person whose TIN is shown in Part I
should sign the form.
PRIVACY ACT NOTICE --Section 6109 requires you to furnish your correct taxpayer
identification number (TIN) to persons who must file information returns with
IRS to report interest, dividends, and certain other income paid to you,
mortgage interest you paid, the acquisition or abandonment of secured property,
or contributions you made to an individual retirement arrangement (IRA). IRS
uses the number for identification purposes and to help verify the accuracy of
your tax return. You must provide your TIN whether or not you are required to
file a tax return. Payers must generally withhold 31% of taxable interest,
dividend, and certain other payments to a payee who does not furnish a TIN to a
payer. Certain penalties may also apply.
Exhibit 99(a)(b)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
WHAT NAME AND NUMBER TO GIVE THE REQUESTER
<TABLE>
<CAPTION>
- ------------------------------------------------------------------
<S> <C>
FOR THIS TYPE OF ACCOUNT?
<CAPTION>
- ------------------------------------------------------------------
<S> <C>
1. Individual
2. Two or more individuals (joint account)
3. Custodian account of a minor (Uniform Gifts to Minors
Act)
4. a. The usual revocable savings trust (grantor is also
trustee)
b. So-called trust account that is not a legal or valid
trust under state laws
5. Sole proprietorship
<CAPTION>
- ------------------------------------------------------------------
FOR THIS TYPE OF ACCOUNT?
- ------------------------------------------------------------------
<S> <C>
6. Sole proprietorship
7. A valid trust, estate or pension trust
8. Corporate
9. Association, club, religious, charitable, educational,
or other tax-exempt organization
10. Partnership
11. A broker or registered nominee
12. Account with the Department of Agriculture in the name
of a public entity (such as a state or local
government, school district, or prison) that receives
agricultural program payments
<CAPTION>
- ------------------------------------------------------------------
GIVE THE NAME AND SOCIAL SECURITY NUMBER OF:
- ------------------------------------------------------------------
<S> <C>
The individual
The actual owner of the account or, if combined funds, the first
individual on the account
The minor(2)
The grantor-trustee(1)
The actual owner(1)
The owner(1)
- ------------------------------------------------------------------
GIVE THE NAME AND EMPLOYER IDENTIFICATION NUMBER OF:
- ------------------------------------------------------------------
The owner(3)
Legal entity(4)
The corporation
The organization
The partnership
The broker or nominee
The public entity
</TABLE>
- --------------------------------------------------
- --------------------------------------------------
NOTES:
1. List first and circle the name of the person whose number you furnish.
2. Circle the minor's name and furnish the minor's social security number.
3. You must show your individual name, but you may also enter your business or
"doing business as" name. You may use either your social security number or
employer identification number.
4. List first and circle the name of the legal trust, estate, or pension trust.
(Do not furnish the identification number of the personal representative or
trustee unless the legal entity itself is not designated in the account
title.)
<PAGE>
NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME, THE NUMBER WILL BE
CONSIDERED TO BE THAT OF THE FIRST NAME LISTED.
