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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 9, 1997
Greenwich Air Services, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-22706 58-1758941
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
P.O. Box 522187, Miami, Florida 33152
4590 NW 36th Street, Miami, Florida 33122
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (305) 526-7000
________________________________________________________________________________
(Former Name or Former Address, if Changed Since Last Report)
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CURRENT REPORT ON FORM 8-K
GREENWICH AIR SERVICES, INC.
March 9, 1997
Item 5. Other Events.
Agreement and Plan of Merger with General Electric Company.
On March 9, 1997, Greenwich Air Services, Inc., a Delaware corporation
("Greenwich"), General Electric Company, a New York corporation ("GE"), and GB
Merger Corp., a Delaware corporation and wholly owned subsidiary of GE ("Merger
Sub"), entered into an Agreement and Plan of Merger of the same date (the "GE
Merger Agreement"), pursuant to which, at the Effective Time (as defined in the
GE Merger Agreement), Greenwich will become a wholly owned subsidiary of GE
through the merger of Greenwich with and into Merger Sub (the "GE Merger"). The
GE Merger Agreement provides, among other things, that as a result of the GE
Merger, (i) each share of Greenwich Class A common stock, par value $.01 per
share (the "Greenwich Class A Stock"), and (ii) each share of Greenwich Class B
common stock, par value $.01 per share (the "Greenwich Class B Stock" and,
together with the Greenwich Class A Stock, the "Greenwich Common Stock"), shall
be valued at $31.00 and converted into the right to receive that number of
shares of common stock, par value $.32 per share, of GE (the "GE Common Stock")
as shall be determined by dividing $31.00 by the Average Parent Share Price (as
defined below) (the "Stock Consideration"); provided, that such holder of
Greenwich Common Stock may elect to receive from GE, in lieu of all or part of
the Stock Consideration, cash in an amount equal to $31.00 per share of
Greenwich Common Stock (the "Cash Consideration").
In order for the GE Merger to qualify as a tax-free reorganization in
respect of the Stock Consideration, the GE Merger Agreement also provides that
if the number of shares of Greenwich Common Stock for which holders elect to
receive Cash Consideration in lieu of Stock Consideration (the "Cash Election
Shares") exceeds 55% of the aggregate number of shares of Greenwich Common Stock
outstanding immediately prior to the Effective Time, the Cash Election Shares
shall be converted into the right to receive Stock Consideration and Cash
Consideration in a manner designed to ensure that no more than 55% of the
aggregate merger consideration will be Cash Consideration.
The "Average Parent Share Price" is defined in the GE Merger Agreement as
the average of the last sales prices 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 (as
defined in the GE Merger Agreement).
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In addition, pursuant to the GE Merger Agreement, each option to purchase
Greenwich Class A Stock and/or Greenwich Class B Stock (a "Greenwich Stock
Option") outstanding at the Effective Time shall be canceled by Greenwich
immediately prior to the Effective Time, and each holder thereof shall be
entitled to receive at the Effective Time an amount (the "Option Spread") 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 the Cash
Consideration over the exercise price per share of Greenwich Common Stock
previously subject to such Greenwich 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 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 Net Option Spread
payable to such holder by (ii) the Average Parent Share Price.
In connection with the GE Merger, certain stockholders of Greenwich
(collectively, the "Option Stockholders"), including Eugene P. Conese and Eugene
P. Conese, Jr., the Chairman of the Board and Chief Executive Officer and the
President and Chief Operating Officer of Greenwich, respectively, each only in
his or her capacity as a stockholder of Greenwich, and GE entered into a Stock
Option and Voting Agreement, dated March 9, 1997 (the "Option and Voting
Agreement"), pursuant to which the Option Stockholders (severally and not
jointly), among other things, granted to GE an irrevocable option (the "Option")
to purchase all, and not less than all, such Option Stockholder's Shares (as
defined in the Option and Voting Agreement) at a price per Share equal to a
number of shares (or fractional share) of GE Common Stock, having a Fair Market
Value (as defined in the Option and Voting Agreement) equal to $31.00 (the
"Purchase Price"). Each Option Stockholder may elect to receive up to 55% of the
aggregate Purchase Price for such Option Stockholder's Shares in cash, in the
same manner as provided for other stockholders in the GE Merger Agreement. The
Option may be exercised by GE, in whole but not in part, as to all and not less
than all Option Stockholders, during the period commencing on the date that the
waiting period under the Hart Scott Rodino Antitrust Improvements Act ("HSR")
applicable to the consummation of the purchase of the Shares pursuant to the
Option on the GE Merger has expired or been terminated and ending on the date
which is the earlier of (i) notice given by the Option Stockholders to GE at any
time after September 30, 1997 and (ii) the date of termination of the GE Merger
Agreement pursuant to the terms thereof by Greenwich in connection with certain
specified breaches thereof by GE.
In addition, pursuant to the Option and Voting Agreement, each Option
Stockholder (severally and not jointly) also agreed to vote (or cause to be
voted) such Option Stockholder's Shares in favor of the approval and adoption of
the GE Merger Agreement, the GE Merger and all the transactions contemplated by
the GE Merger Agreement and the Option and Voting Agreement and otherwise in
such manner as may be necessary to consummate the GE Merger; provided, however,
that the Option Stockholders shall not be obligated to vote in favor of the
foregoing if the Board of Directors of Greenwich, in the exercise of its
fiduciary obligations and in accordance with the terms of the GE Merger
Agreement, has previously withdrawn and not reinstated its recommendation in
favor of the GE Merger because it has determined that Greenwich has received a
Superior Proposal (as defined in the GE Merger Agreement) from a
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third party. Notwithstanding the foregoing, if GE has delivered an exercise
notice with respect to all of the Shares then owned by the Option Stockholders
and prior to such date Greenwich has established a record date for stockholder
action on the GE Merger, the Option Stockholders shall be obligated to vote in
favor of the GE Merger. If, and only if, any Option Stockholder fails to comply
with the voting provisions of the Option and Voting Agreement (as determined by
GE in its sole discretion), such failure will result in the irrevocable
appointment of GE, and each of its officers, as such Option Stockholder's
attorney and proxy, with full power of substitution, to vote and otherwise act
(by written consent or otherwise) with respect to such Option Stockholder's
Shares at any meeting of stockholders of Greenwich (whether annual or special)
or consent in lieu of any such meeting or otherwise, on the matters and in the
manner specified in the Option and Voting Agreement.
Also in connection with the GE Merger, Eugene P. Conese, Sr., Chairman and
Chief Executive Officer of the Company, entered into a Consulting Agreement,
dated as of March 9, 1997, with GE, pursuant to which, among other things, Mr.
Conese agreed, subject to the completion of the GE Merger, to act as a
consultant to the Company and not to compete with the engine services businesses
of GE. Mr. Conese's engagement under the Consulting Agreement shall commence as
of the Effective Time of the GE Merger and shall terminate on the fifth
anniversary thereof (the "Consulting Period"). As compensation for the
non-competition and related covenants contained in the Consulting Agreement and
the consulting services to be performed, (i) GE shall pay Mr. Conese a fee each
year at the annual rate of $1.0 million and (ii) GE shall make a $1.0 million
payment each year of the Consulting Period in the name of Mr. Conese to a
charitable organization chosen by Mr. Conese.
Amended and Restated Agreement and Plan of Merger with UNC Incorporated.
On March 9, 1997, Greenwich, UNC Incorporated, a Delaware corporation
("UNC"), and Condor Acquisition Corporation, a Delaware corporation and wholly
owned subsidiary of Greenwich ("Condor"), entered into an Amended and Restated
Agreement and Plan of Merger of the same date (the "UNC Merger Agreement"),
pursuant to which the parties have agreed to restructure the transactions
contemplated by the Agreement and Plan of Reorganization, dated February 13,
1997, by and among the parties (the "Prior Agreement"). The UNC Merger Agreement
amends and restates the Prior Agreement to provide that UNC will become a wholly
owned subsidiary of Greenwich through the merger of Condor with and into UNC
(the "UNC Merger"). Pursuant to the proposed terms of the UNC Merger (i) each
share of UNC common stock, par value $.20 per share, of UNC (the "UNC Common
Stock"), shall be converted into the right to receive $15.00 in cash (the "UNC
Merger Consideration") payable, without interest, to the holder of such share of
UNC Common Stock, and (ii) each share of UNC Series B preferred stock, par value
$1.00 per share (the "UNC Series B Preferred Stock"), shall be converted
automatically into the right to receive an amount equal to $15.00 in cash
multiplied by the number of shares (including any fraction of a share) of UNC
Common Stock into which such share of UNC Series B Preferred Stock is
convertible immediately before the Effective Time (as defined in the UNC Merger
Agreement).
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In addition, pursuant to the UNC Merger Agreement, each option to purchase
UNC Common Stock (a "UNC Stock Option") outstanding at the Effective Time shall
be canceled and converted into the right to receive, in full consideration of
such securities, a cash payment equal to the product of (i) the aggregate number
of shares of UNC Common Stock issuable upon exercise of such unexercised UNC
Stock Option (the "Unexercised Option Shares") by (ii) the difference between
$15.00 and the applicable exercise price per share attributable to such
Unexercised Option Shares.
In the event that the GE Merger Agreement is terminated for any reason,
the UNC Merger Agreement shall, without any action by any party thereto, be
further amended, restated and modified, so that all of the terms and conditions
set forth in the Prior Agreement shall be deemed to be the terms and conditions
of the UNC Merger Agreement (with certain minor exceptions), and the UNC Merger
shall proceed forward under the terms and conditions of the UNC Merger Agreement
as so amended, restated and modified.
The GE Merger Consideration, the UNC Merger Consideration, as well as the
other terms and conditions of the GE Merger Agreement and the UNC Merger
Agreement, were determined as a result of arm's-length negotiations among
representatives of the parties to each of the GE Merger Agreement and UNC Merger
Agreement. Consummation of the transactions contemplated by the GE Merger
Agreement and the UNC Merger Agreement are subject to a number of conditions,
including, without limitation, approval of certain regulatory authorities,
approval of the GE Merger Agreement by the stockholders of Greenwich entitled to
vote thereon, and approval of the UNC Merger Agreement by the stockholders of
UNC entitled to vote thereon.
The information set forth above is qualified in its entirety by reference
to (i) the GE Merger Agreement, a copy of which is attached hereto as Exhibit 1,
(ii) the Option and Voting Agreement, a copy of which is attached hereto as
Exhibit 2, (iii) the Consulting Agreement, a copy of which is attached hereto as
Exhibit 3, (iv) the UNC Merger Agreement, a copy of which is attached hereto as
Exhibit 4 and (v) the press release issued by GE, Greenwich and UNC on March 10,
1997, a copy of which is attached hereto as Exhibit 5.
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Businesses Acquired.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
1. Agreement and Plan of Merger, dated March 9, 1997, by and among
Greenwich, GE and Merger Subsidiary.
2. Stock Option and Voting Agreement, dated March 9, 1997, among the
Option Stockholders and GE.
3. Consulting Agreement, dated as of March 9, 1997, by and between
Eugene P. Conese and GE.
4. Amended and Restated Agreement and Plan of Merger, dated March 9,
1997, by and among Greenwich, UNC and Condor.
5. Press Release issued by GE, Greenwich and UNC on March 10, 1997.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GREENWICH AIR SERVICES, INC.
Date: March 14, 1997 By: /s/ Michael A. Bucci
-------------------------
Michael A. Bucci
Senior Vice President,
General Counsel and
Secretary
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EXHIBIT INDEX
Exhibit Number Description
1 Agreement and Plan of Merger, dated March 9, 1997, by and among
Greenwich, GE and Merger Subsidiary.
2. Stock Option and Voting Agreement, dated March 9, 1997, among the
Option Stockholders and GE.
3. Consulting Agreement, dated as of March 9, 1997, by and between
Eugene P. Conese and GE.
4. Amended and Restated Agreement and Plan of Merger, dated March 9,
1997, by and among Greenwich, UNC and Condor.
5. Press Release issued by GE, Greenwich and UNC on March 10, 1997.
EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
Among
GENERAL ELECTRIC COMPANY,
GB MERGER CORP.
and
GREENWICH AIR SERVICES, INC.
Dated March 9, 1997
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TABLE OF CONTENTS
ARTICLE I
THE MERGER............................... 2
SECTION 1.01. The Merger............................................... 2
SECTION 1.02. Effective Time; Closing.................................. 2
SECTION 1.03. Effect of the Merger..................................... 2
SECTION 1.04. Certificate of Incorporation: By-laws.................... 2
SECTION 1.05. Directors and Officers................................... 3
ARTICLE II
CONVERSION OF SECURITIES: EXCHANGE OF CERTIFICATES........... 3
SECTION 2.01. Capital Stock of Merger Sub.............................. 3
SECTION 2.02. Cancellation of Treasury Stock and Parent Owned Stock.... 3
SECTION 2.03. Conversion of Company Common Stock....................... 3
SECTION 2.04. Exchange of Certificates................................. 6
SECTION 2.05. Stock Transfer Books..................................... 9
SECTION 2.06. Company Stock Options.................................... 9
ARTICLE III
REPRESENTATIONS AND WARRANT COMPANY.................. 9
SECTION 3.01. Organization and Qualification: Subsidiaries............. 10
SECTION 3.02. Certificate of Incorporation and By-laws................. 10
SECTION 3.03. Capitalization........................................... 10
SECTION 3.04. Authority Relative to this Agreement..................... 12
SECTION 3.05. No Conflict; Required Filings and Consents............... 12
SECTION 3.06. Compliance with Laws: Permits............................ 13
SECTION 3.07. SEC Filings; Financial Statements........................ 13
SECTION 3.08. Absence of Certain Changes or Events..................... 14
SECTION 3.09. Absence of Litigation.................................... 15
SECTION 3.10. Employee Benefit: ERISA.................................. 16
SECTION 3.11. Labor Matters............................................ 18
SECTION 3.12. Title to and Sufficiency of Assets....................... 19
SECTION 3.13. Intellectual Property.................................... 19
SECTION 3.14. Tax Matters.............................................. 20
SECTION 3.15. Environmental Matters.................................... 22
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SECTION 3.16. Material Contracts; Government Contracts................. 24
SECTION 3.17. Suppliers................................................ 26
SECTION 3.18. Tax Treatment............................................ 26
SECTION 3.19. Insurance................................................ 26
SECTION 3.20. Approval of Company Board and Independent Directors...... 26
SECTION 3.21. Stockholder Vote Required................................ 26
SECTION 3.22. Accuracy of Information.................................. 27
SECTION 3.23. Transactions with Affiliates............................. 27
SECTION 3.24. Opinion of Financial Advisor............................. 27
SECTION 3.25. Brokers.................................................. 28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB............................. 28
SECTION 4.01. Organization and Qualification; Subsidiaries............. 28
SECTION 4.02. Certificate of Incorporation and By-laws................. 28
SECTION 4.03. Parent Common Stock to Be Issued in the Merger........... 28
SECTION 4.04. Authority Relative to This Agreement..................... 29
SECTION 4.05. No Conflict: Required Filings and Consents............... 29
SECTION 4.06. SEC Filings; Financial Statements........................ 30
SECTION 4.07. Absence of Certain Changes or Events..................... 30
SECTION 4.08. Brokers.................................................. 30
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER................. 30
SECTION 5.01. Conduct of Business by the Company Pending the Merger.... 30
ARTICLE VI
ADDITIONAL AGREEMENTS.................................... 33
SECTION 6.01. Registration Statement; Proxy Statement.................. 33
SECTION 6.02. Stockholders' Meeting.................................... 34
SECTION 6.03. Appropriate Action; Consents; Filings.................... 35
SECTION 6.04. Access to Information: Confidentiality................... 36
SECTION 6.05. No Solicitation of Competing Transactions................ 36
SECTION 6.06. Indemnification and Insurance............................ 38
SECTION 6.07. Notification of Certain Matters.......................... 39
SECTION 6.08. Stock Exchange Listing................................... 39
SECTION 6.09. Public Announcements..................................... 39
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SECTION 6.10. Plan of Reorganization................................... 40
SECTION 6.11. Affiliates: Tax Treatment................................ 40
SECTION 6.12. Company Employee Stock Purchase Plan..................... 40
SECTION 6.13. Consulting Agreement..................................... 40
SECTION 6.14. Supplemental Indenture................................... 40
SECTION 6.15. UNC Merger Agreement..................................... 40
SECTION 6.16. Clean Air Act Permit..................................... 41
ARTICLE VII
CONDITIONS TO THE MERGER........................ 41
SECTION 7.01. Conditions to the Obligations of Each Party.............. 41
SECTION 7.02. Conditions to the Obligations of Parent and Merger Sub... 42
SECTION 7.03. Conditions to the Obligations of the Company............. 43
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER................... 43
SECTION 8.01. Termination.............................................. 43
SECTION 8.02. Effect of Termination.................................... 45
SECTION 8.03. Fees and Expenses........................................ 45
SECTION 8.04. Amendment................................................ 47
SECTION 8.05. Waiver................................................... 47
ARTICLE IX
GENERAL PROVISIONS........................... 47
SECTION 9.01. Non-Survival of Representations, Warranties and
Agreements............................................... 47
SECTION 9.02. Notices.................................................. 47
SECTION 9.03. Certain Definitions...................................... 48
SECTION 9.04. Accounting Terms......................................... 50
SECTION 9.05. Severability............................................. 50
SECTION 9.06. Entire Agreement: Assignment............................. 51
SECTION 9.07. Parties in Interest...................................... 51
SECTION 9.08. Specific Performance..................................... 51
SECTION 9.09. Governing Law............................................ 51
SECTION 9.10. Headings................................................. 51
SECTION 9.11. Counterparts............................................. 51
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EXHIBITS
Exhibit 5.01(g) Form of Retention Agreements
Exhibit 6.11 Form of Company Affiliate Letter
Exhibit 6.13 Form of Consulting Agreement
Exhibit 7.02(a) Form of Parent Tax Opinion Representation Letter
Exhibit 7.02(b) Form of Company Tax Opinion Representation Letter
Exhibit 7.02(c) Form of Continuity of Interest Certificate
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Index of Defined Terms
Defined Term Location of Definition
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 business day Section 3.05(b)
Cash Consideration Section 9.03(c)
Cash Election Section 2.03(a)
Cash Election Number Section 2.03(b)
Cash Election Shares Section 2.03(b)
Cash Fraction Section 2.03(b)
Certificate of Merger Section 2.03(b)
Certificates Section 1.02
Change of Control Section 2.04(b)
Closing Agreement Section 8.03(a)
Closing Date Section 3.14(a)(i)
Code Section 1.02
Combination Recitals
Commonly Controlled Entity Section 8.03(a)
Company Aeroderivative Business Section 3.10(a)
Company Benefit Plans Recitals
Company Businesses Section 9.03(d)
Company Class A Stock Section 3.10(a)
Company Class B Stock Section 9.03(e)
Company Commercial Aircraft Business Section 2.01
Company Common Stock Section 2.01
Company Disclosure Schedule Section 9.03(f)
Company Financial Advisor Section 2.01
Company Foreign Benefit Plan Article III
Company Government Business Section 3.24
Company Group Section 3.10
Company Indemnified Parties Section 9.03(g)
Company Intellectual Property Section 9.03(h)
Company Licenses Section 6.06(e)
Company Material Adverse Effect Section 3.13
Section 3.13
Section 3.01
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Defined Term Location of Definition
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)
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)
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Defined Term Location of Definition
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
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)
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)
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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:
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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 Corporations").
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 partial may agree) (the date on which such closing takes place
being the Closing Date.).
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.
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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 Stocks"), or Company Class B Common Stock, par value $.01 per share (the
"Company Class B Stocks" 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 S.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 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,
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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 Prices" 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, an 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) win be entitled, with respect to each share of Company
Common Stock held by such holder, to elect to receive the Cash Consideration (a
"Cash Elections"); 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 (a) 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.
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(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 "Selection Form Record Date").
Parent and the Company shall make available one or more Forms of Election as may
be reasonably requested by an 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 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 win
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
an computations contemplated by this Section 2.03 and an 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 Deadlines") 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 avocation of the cash
portion of the Merger Consideration and the stack 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 avocation 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.
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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
reexchange 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 shad, 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.
(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
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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 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 shad 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 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 with the Exchange
Agent and shall cause the Exchange Agent to forward payments to such holders of
fractional interests subject to and in accordance with the terms of Sections
2.04(b), (c) and (d).
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(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 how. 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, an deeds,
bills of sale, assignments and assurances and to take and do, in such names and
on such behalves or otherwise, an such other actions and things as may be
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necessary or desirable to vest, perfect or confirm any and an 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 share 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.
SECTION 2.06. Company Stock Options. (a) Each option (a "Company
Stock Options") 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 Spreads") 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 resect 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 WARRANT 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:
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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 excising 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 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
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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)
154,975 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) 398,975 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 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.
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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 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 win 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 win 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
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1933, as amended (the "Securities Acts), 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 HER 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 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 an
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 an 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 an
franchises, grants, authorizations, licenses, permits, easements, variances,
exceptions, consents, certificates, approvals and orders from an 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 an 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 ad 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
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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 an 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 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
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(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 pracdee, (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, recrement, 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 SE C 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 for such claims that,
if determined adversely to the
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Company and the Subsidiaries, would not, individually or in the aggregate, have
a Company Material Adverse Effect.
SECTION 3.10. Employee Benefit: ERISA.
(a) 3.10(a) of the Company Disclosure Schedule contains a list of
all Employee pension benefit pansy (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 employed,
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 Pans, descriptions thereof),
('c) the most recent annual report on Form 5500 filed with the Internal Revenue
Service with resect to each Company Benefit Plan (if any such report was
required), (y) the most recent summary plan dacriphon (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 reladog 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
ta~c-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 Pens and refuted trusts are qualified
and exempt from federal income tuck under Sections 401(a) and 501(a),
respectively, of the Code, and no such determination 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 talc
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
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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 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 A 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
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<PAGE>
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 employed of the Company: (i) to the Knowledge of the
Company, no senior executive or key employee has any plans to terminate
employment with the Company or any of its Subsidiaries; (ii) there is no unfair
labor practice 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 excising 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
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<PAGE>
charge, citation of 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.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 an 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 an
Real Estate occupied by the Company and the Subsidiaries which are material to
the operation of the Company Businesses are in fun 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.
SECTION 3.13. Intellectual Property. "Company Intellectual Property"
means an 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,
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<PAGE>
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 an 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 shad 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 win 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
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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
(iv) "Taxes" means any and all taxes, levies, imposts, dudes,
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, and including any
interest, penalties, fines, assessments or additions to talc 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 resect to federal and state income Taxes, all representations and
warranties made in this Section 3.14(b) with reject 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 ad Tax Returns required to be filed by each of them and such Tan
Returns are in an 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 an 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 an material respects with the provisions of the Code relating
to the withholding of Taxes, as wed 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.
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(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 tracing
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 other
chemicals, materials or substances regulated as toxic or hazardous or as a
pollutant, contaminant or waste under any applicable Environmental Law; (ii)
"Environmental Laws" 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.
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(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 an 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 park in connection with any such
violation or liability, (C) requiring the response to or remediation of
Hazardous Substance 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
notice 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
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property currently or formerly owned, leased or occupied by the Company or any
of the Subsidiaries.
SECTION 3.16. Material Contracts; Government Contracts.
(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 Subsidiaries 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.
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(e) Except as set form 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 defaults of any Government Contract and, as at the Closing Date,
the Company shall not have received any such notices under any material
Government Contract.
(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 win 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 an material respects in compliance with
applicable federal procurement law regulations, including the Cost Principles
and Cost Accounting Standards.
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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 win 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 win
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 win so
qualify.
SECTION 3.19. Insurance. All material fire and casuals, 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 an payments required to maintain such policies in fun 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 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
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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 accompany Financial Advisor.), to the
effect that, as
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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.
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 q 'edified 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
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statute, Parent's Certificate of Incorporation or By-laws or any agreement to
which Parent is a park 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
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 breach 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
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likely to prevent or maternally 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 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,
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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, licensers, 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,
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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 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; provide, 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
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(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 unassorted, 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 Sat
(together with all amendments thereto, the "Registration Statements"), 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 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
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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 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 park shall promptly notify the other party in writing of
any pending or, to the knowledge of the first park, 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
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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 businesses resulting, or which could reasonably be expected to result
after the Effective Time, from the failure to obtain such consent.
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 "Confidential 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, "Representative") 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 warrant in this Agreement of any park 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 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
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negotiate with any person or entity in furtherance of such inquires 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 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 park. 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 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
Notices") 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 Directors of the
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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 Bylaws 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
excising 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.
(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
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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 park 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 warrant 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
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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 reorganizations within the meaning of Section 1.368-2(g)
of the income tax regulations promulgated under the Code.
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 Offerings) 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 (. Stock Transfer and
Trusts) 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 Agreements"), Company intends,
on the terms and conditions set forth
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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.
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 IN and the Company's Certificate of Incorporation;
(b) any applicable waiting period under the HER 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;
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(d) the Registration Statement shall have been declared effective,
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 an
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 an 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 comforts 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 win
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
win be a party to the reorganization within the meaning of Section 368(b) of the
Code, dated on the Closing Date;
(d) Parent shad 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
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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 shah have performed in all material
respects an 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) shad 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 park
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. 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
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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 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
44
<PAGE>
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.
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 pall have been lifted on
or before September 30, 1997), decree or ruling, or taken any other
action, restraining, enjoining or otherwise prohibiting the Merger
45
<PAGE>
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
infection 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 ie 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 incubated 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 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.
46
<PAGE>
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
partial 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
47
<PAGE>
Senior Counsel-Transactions
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) 848-7666
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;
48
<PAGE>
(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;
(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;
49
<PAGE>
(j) "Governmental Authority" means any United States (federal, state
or local), foreign or supranational 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 trust,
association or entity or government, political subdivision, agency or
instrumentality of a government;
(m) "Real Estates 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 an 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 shad have the respective
meanings given to them in accordance with United States generally accepted
accounting principles.
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 shad
nevertheless remain in fun force and effect so long as the economic or legal
substance of the Merger is not affected in any manner materially adverse to any
park. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shad 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.
50
<PAGE>
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 an 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 an or any of their rights and obligations hereunder to any affiliate of
Parent provided that no such assignment shad change the amount or nature of the
Merger Consideration or relieve the assigning park 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 park 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 shad be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equip.
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.
51
<PAGE>
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, Sr.
Title: Chief Executive Officer
52
EXECUTION COPY
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
<PAGE>
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 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
<PAGE>
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 Notices) to each Stockholder of its intention to
exercise the Options, specifying the place, and, if then 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
<PAGE>
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
<PAGE>
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.
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
<PAGE>
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
<PAGE>
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
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
<PAGE>
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 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
<PAGE>
adversely effect 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 offers. Parent's obligation to consummate any such proposal
or offer shall be subject to the satisfaction of the conditions set forth in
Section 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
<PAGE>
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 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
<PAGE>
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.
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 Of fleer
with a copy to:
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.
<PAGE>
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. yolk, 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.
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
<PAGE>
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.
<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
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Agreement") dated as of March 9, 1997, by
and between General Electric Company, a New York corporation ("Parent"), and
Eugene P. Conese, Sr.("Consultant").
WHEREAS, Parent, GB Merger Corp., and Greenwich Air Services, Inc.,
a Delaware corporation (the "Company"), have entered into a Merger Agreement,
dated as of the date hereof (the "Merger Agreement"), pursuant to which the
Company will merge with and into GB Merger Corp. (the "Merger"); and
WHEREAS, Consultant has served as Chief Executive Officer and
Chairman of the Board of Directors of the Company and will resign from such
positions effective as of the consummation of the Merger; and
WHEREAS, Parent wishes to retain Consultant to provide consulting
and advisory services following his resignation from the Company and Consultant
has agreed to provide such services on the conditions set forth herein; and
WHEREAS, in connection with the Merger, the parties desire to enter
into this Agreement, to be effective at the "Effective Time" (as defined in the
Merger Agreement);
NOW, THEREFORE, in consideration of the mutual covenants in this
Agreement, the parties hereby agree as follows:
1. Effectiveness of Agreement and Consulting Engagement.
1.1. Effectiveness of Agreement. This Agreement shall become
effective as of the Effective Time. In the event that the Merger is not
consummated, this Agreement shall be null and void.
1.2. Consulting Engagement. (a) Parent hereby agrees to engage
Consultant as an independent contractor and advisor on the terms and conditions
set forth herein and Consultant hereby accepts such engagement with Parent.
Consultant's services hereunder shall consist of rendering to the best of his
ability such consulting and advisory services in connection with the Company
Businesses (as such term is defined in the Merger Agreement), as may reasonably
be requested from time to time by the Chief Executive Officer or the Board of
Directors of Parent (the "Board"), or the designee of either thereof, and to
facilitate the successful transition of the Company from its current form to a
business owned by Parent; provided, that (i) Consultant shall not be required to
travel or relocate, and (ii) the requirement that Consultant devote time to
perform services pursuant to this Agreement shall be subject to the time
available to Consultant during normal business hours after the conduct by
Consultant of his other businesses, which shall take precedence in all cases.
Consultant shall make himself available on
<PAGE>
a reasonable basis from time to time to provide such services, but there shall
be no established schedule for Consultant's services and he shall not be
required to devote any minimum number of days to such services. Parent expressly
acknowledges and agrees that Consultant's primary occupation and business
interests shall be conducted by Consultant in endeavors other than Consultant's
services pursuant to this Agreement.
(b) Notwithstanding anything contained herein to the contrary, Consultant
may elect to have his rights and obligations hereunder assigned to a subchapter
S corporation (the "S Corp") of which he is a principal shareholder, provided
that (i) the S Corp shall rely exclusively on Consultant to act on its behalf in
providing the consulting services required hereunder, (ii) the S Corp executes a
writing in which it expressly agrees to be bound by this Agreement as
"Consultant" hereunder, and (iii) Consultant, in his individual capacity, shall
continue to be bound by the restrictive covenants contained in Section 5 hereof
Following any assignment of rights and obligations to the S Corp in accordance
with this Section 1.2(b), except as provided above or as the context would
otherwise require, all references to "Consultant" hereunder shall be deemed to
refer to the S Corp.
1.3. Independent Contractor Status. Consultant is an independent
contractor under this Agreement and shall be free to exercise his discretion and
judgment as to the methods and means of performing the services performed
hereunder. Consultant is not an employee of Parent, will not by virtue of this
Agreement be considered an employee of Parent for any purpose, and will not be
entitled to any benefits, rights, or privileges provided by Parent to its
employees under any Parent welfare or other benefit plans, including, without
limitation, Parent insurance, pension, and savings and security plans.
Consultant shall be solely responsible for the payment of any and all of his
required contributions and/or taxes including without limitation: federal, state
and/or local income taxes and withholding; workers' compensation insurance;
unemployment contribution insurance; and social security taxes. Consultant
represents that he is complying and will continue to comply with all federal,
state and local requirements regarding employment taxes and income taxes, and
will indemnify and hold Parent harmless from any action by governmental agencies
arising out of his failure to perform any such responsibilities.
1.4. No Agency. Nothing contained in this Agreement shall be
construed as creating an agency relationship between Parent or any of its
subsidiaries or affiliates ("Affiliates") and Consultant and, without Parent's
prior written consent, Consultant shall have no authority hereunder to bind
Parent or any of its Affiliates or make any commitments on Parent's or any of
its Affiliate's behalf. Consultant shall not take any action in connection with
his rendering of services hereunder which he reasonably believes would cause any
third party to assume that he has such authority.
<PAGE>
2. Compensation.
2.1. Consulting and Non-Competition Fee. As compensation for the
consulting services to be performed, and the restrictive covenants to be
complied with pursuant to Section S. by Consultant hereunder, (i) Parent shall
pay Consultant a fee each year of the Consulting Period which shall be payable
in equal installments, no less frequently than quarterly in advance, at the
annual rate of $1 million and (ii) Parent shall make a $1 million payment each
year of the Consulting Period in the name of Consultant to a charitable
organization chosen by Consultant (the "Fees").
2.2. Expenses. Pursuant to Parent's customary policies in force at
the time of payment, Consultant shall be promptly reimbursed for all authorized
expenses properly and reasonably incurred by him on behalf of Parent or its
Affiliates in the performance of his duties hereunder upon presentation of
appropriate documentation consistent with Parent's policies concerning expense
reimbursement.
3. Consulting Period.
Consultant's engagement under this Agreement shall commence as of
the Effective Time, and shall terminate on the fifth anniversary thereof (the
"Consulting Period"), unless terminated earlier pursuant to Section 4. Section 5
shall survive any termination of this Agreement and shall remain in full force
and effect. In the event Consultant dies or becomes permanently disabled during
the Consulting Period, the Fees shall continue to be paid to him or, in the
event of his death, to his beneficiary, until the end of the Consulting Period
in accordance with the terms of this Agreement.
4. Termination.
4.1. Termination by Parent for Cause. (a) The Consulting Period may
be terminated at any time by Parent for Cause (as defined below). Upon such a
termination, Parent shall have no obligation to Consultant other than the
payment of Consultant's earned but unpaid compensation through the effective
date of such termination and reimbursement of authorized expenses pursuant to
Section 2.2 of this Agreement.
(b) For purposes of this Agreement, the term "Cause" shall mean
either of the following:
(i) Consultant's conviction of a criminal offense arising out
of a breach of trust, fraud, or embezzlement against Parent; or
(ii) Any breach by Consultant of any material provision of
Section 5 of
<PAGE>
5. Restrictive Covenants.
5.1. Confidentiality. Consultant understands and acknowledges that
during his employment with the Company prior to this Agreement and through the
course of his consulting engagement pursuant to this Agreement, he has had and
will have access to and has learned and will learn (i) information proprietary
to Parent and its Affiliates that concerns the operation and methodology of the
Company Businesses as the same are hereafter conducted by the Parent and its
Affiliates (the "Aircraft Engine Services Business") or (ii) other information
proprietary to Parent and its Affiliates, including, without limitation, trade
secrets, processes, patent and trademark applications, product development,
price, customer and supply lists, pricing and marketing plans, policies and
strategies, details of client and consultant contracts, operations methods,
product development techniques, business acquisition plans, new personnel
acquisition plans and all other confidential information with respect to the
Aircraft Engine Services Business (collectively, "Proprietary Information").
Consultant agrees that, at all times (including following termination of the
Consulting Period), he will keep confidential and will not disclose directly or
indirectly any such Proprietary Information to any third party, except as
required to fulfill his duties hereunder, and will not misuse, misappropriate or
exploit such Proprietary Information in any way. The restrictions contained
herein shall not apply to any information which (a) was already available to the
public at the time of disclosure, or subsequently become available to the
public, otherwise than by breach of this Agreement, or (b)was disclosed due to a
requirement of law. Upon any termination of the Consulting Period, Consultant
shall promptly return to Parent and its Affiliates all documents, computer
disks, records, notebooks and similar repositories of any Proprietary
Information in his possession, including copies thereof.
5.2. Restrictions on Competitive Employment. (a) During the period
beginning on the Effective Time and ending one year after the cessation of the
consulting engagement of Consultant for any reason (the "Restricted Period"),
Consultant shall not (as principal, agent, employee, consultant or otherwise),
anywhere worldwide, directly or indirectly, without the prior written approval
of Parent, engage in activities for, or render services to (including, without
limitation, computer programming, data entry, sales or product development), any
firm or business (i) materially engaged in direct or indirect competition with
the Company, the Parent and its Affiliates in the business of (x) repair and
overhaul of aircraft and aeroderivative gas turbine engines, components,
accessories and structural flight control services or (y) sale and distribution
of aircraft and aeroderivative gas turbine engines, components, assemblies,
modules and units of Aircraft Engine Services Business whether or not in the
geographic areas in which such lines of business are currently conducted by
<PAGE>
the Company, the Parent, or its Affiliates (the "Core Aircraft Engine Services
Business"), (ii) materially engaged in developing products or services
competitive with those of the Core Aircraft Engine Services Business (all of the
businesses in clauses (i) and (ii) collectively, the "Competitive Business").
Notwithstanding the foregoing, (x) Consultant may have an interest consisting of
publicly traded securities constituting less than 5% percent of any class of
publicly traded securities in any public company engaged in a Competitive
Business so long as he is not employed by and does not consult with, or become a
director of or otherwise engage in any activities for, such company, and (y)
Consultant may continue to operate World Air Leases, it being understood and
agreed that the business of World Air Leases shall not be considered a
Competitive Business hereunder to the extent that it continues to engage in the
kinds of activities in which it is engaged as of the date hereof Notwithstanding
anything contained in this Section 5, Consultant agrees that Consultant shall
not, at any time during the Restricted Period, deliberately take any action
which (I) would interfere with any contractual or customer relationships of
Parent or its Affiliates in respect of the Aircraft Engine Services Business, or
any relationship with the employees of, or vendors or contractors to, Parent or
its Affiliates in respect of the Aircraft Engine Services Business, or (II)
would result in a material diminution of business to Parent or its Affiliates in
respect of the Core Aircraft Engine Services Business.
(b) During the Restricted Period (or, if shorter, until the fifth
anniversary of the Effective Time), Consultant shall not pursue, assist, or
become otherwise involved in any capacity with any transaction or proposed
transaction relating to (x) the repair and overhaul of aircraft and
aeroderivative gas turbine engines, components, accessories and structural
flight control services or (y) the sale and distribution of aircraft and
aeroderivative gas turbine engines, components, assemblies, modules and units
which Consultant participated in or was first advised of in connection with the
performance of his services as Consultant under this Agreement unless Consultant
first apprises Parent of such transaction and Parent declines to pursue such
transaction.
5.3. Remedies. Consultant acknowledges and agrees that damages for a
breach or threatened breach of any of the covenants set forth in this Section 5
will be difficult to determine and will not afford a full and adequate remedy,
and therefore agrees that Parent, in addition to seeking actual damages in
connection therewith, may seek specific enforcement of any such covenant in any
court of competent jurisdiction, including, without limitation, by the issuance
of a temporary or permanent injunction upon posting of adequate bond in respect
thereof
6. Notices. Any notice or communication given by either party hereto to
the other shall be in writing and personally
<PAGE>
delivered or mailed by registered or certified mail, return receipt requested,
postage prepaid, to the following addresses:
(a) if to Parent:
General Electric Company
One Neumann Way
Mail Drop J104
Evendale, Ohio 45215-6301
Attn: Vice President & General Counsel
With a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attn: John J. Cannon, III, Esq.
(b) if to Consultant:
With a copy to:
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, FL 33131
Attn: Stephen A. Weiss
Any notice shall be deemed given when actually delivered to such
address, or five days after such notice has been mailed or one day after such
notice has been sent by Federal Express, whichever comes earliest. Any person
entitled to receive notice may designate in writing, by notice to the other,
such other address to which notices to such person shall thereafter be sent.
7. Miscellaneous.
7.1. Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of its subject matter and supersedes
upon its effectiveness all other prior agreements, plans, programs and
understandings between the parties with respect to such subject matter hereof
7.2. Amendment; Waiver. This Agreement may not be amended,
supplemented, cancelled or discharged, except by written instrument executed by
the party affected thereby. No failure to exercise, and no delay in exercising,
any right, power or privilege hereunder shall operate as a waiver thereof No
waiver of any breach of any provision of this Agreement shall be deemed to be a
waiver of any preceding or succeeding breach of the same or any other provision.
7.3. Binding Effect: Assignment. The rights and obligations of this
Agreement shall bind and inure to the benefit
<PAGE>
of any successor of Parent by reorganization merger or consolidation, or any
assignee of all or substantially all of Parent's business and properties. Parent
may assign its rights and obligations under this Agreement to any of its
majority-owned Affiliates (provided that such assignment shall automatically
terminate if such Affiliate shall cease to be majority-owned by Parent) without
the consent of Consultant, but shall remain liable for any payments provided
hereunder not timely made by any Affiliate assignee. Except as specifically
provided herein, Consultant's rights or obligations under this Agreement may not
be assigned by Consultant.
7.4. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
7.5. Governing Law. This Agreement shall be construed in accordance
with and governed for all purposes by the laws and public policy (other than
conflict of laws principles) of the State of New York applicable to contracts
executed and to be wholly performed within such State.
7.6. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
New York, New York in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction.
7.7. Further Assurances. Each of the parties agrees to execute,
acknowledge, deliver and perform, and cause to be executed, acknowledged,
delivered and performed, at any time and from time to time, as the case may be,
all such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably necessary to carry out the
provisions or intent of this Agreement.
7.8. Severability. The parties have carefully reviewed the
provisions of His Agreement and agree that they are fair and equitable. However,
in light of the possibility of differing interpretations of law and changes in
circumstances, the parties agree that if any one or more of the provisions of
this Agreement shall be determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions of this
Agreement shall, to the extent permitted by law, remain in full force and effect
and shall in no way be affected, impaired or invalidated. Moreover, if any of
the provisions contained in this Agreement is determined by a court of competent
jurisdiction to be excessively broad as to duration, activity, geographic
application or subject, it shall be construed, by limiting or reducing it to the
extent legally permitted, so as to be enforceable to the extent compatible with
then applicable law.
<PAGE>
7.9. Enforceability By Beneficiaries. This Agreement shall inure to
the benefit of and be enforceable by Consultant's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Consultant should die while any amount would still be
payable to Consultant hereunder if Consultant had continued to live, all such
amounts, shall be paid in accordance with the terms of this Agreement to his
devises, legates or other designee or, if there is no such designee, to his
estate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
GENERAL ELECTRIC COMPANY
By: /s/ William J. Vareschi
---------------------------------
Name: William J. Vareschi
Title: Vice President
CONSULTANT
/s/ Eugene P. Conese
---------------------------------
Eugene P. Conese, Sr.
Execution Copy
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMONG
GREENWICH AIR SERVICES, INC.
CONDOR ACQUISITION CORP.
AND
UNC INCORPORATED
Dated as of March 9, 1997
<PAGE>
TABLE OF CONTENTS
[TO BE CONFORMED]
PAGE
----
ARTICLE I
ARTICLE II
Section 2.1. The Merger.......................................-12-
Section 2.2. Conversion of Securities.........................-13-
Section 2.3. Surrender of Certificates: Stock Transfer Books..-14-
Section 2.4. Transfer Taxes...................................-15-
Section 2.5. Stock Options....................................-15-
ARTICLE III
Section 3.1. Stockholder Approvals............................-16-
Section 3.2. Effective Time of the Merger.....................-16-
ARTICLE IV
Section 4.1. Organization and Authority of the Greenwich and
Merger Sub.......................................-16-
Section 4.2. Authority Relative to this Agreement.............-17-
Section 4.3. Consents and Approvals: No Violations............-17-
Section 4.4. Fees and Expenses of Brokers and Others..........-18-
Section 4.5. Accuracy of Information .........................-18-
Section 4.6. GE-Greenwich Merger Agreement....................-18-
ARTICLE V
Section 5.1. Organization and Authority of the UNC Companies..-18-
Section 5.2. Capitalization...................................-19-
Section 5.3. Authority Relative to this Agreement.............-20-
Section 5.4. Consents and Approvals: No Violations............-20-
Section 5.5. Reports and Financial Statements.................-21-
Section 5.6. Absence of Certain Events........................-22-
Section 5.7. UNC Proxy Statement..............................-22-
Section 5.8. Litigation.......................................-22-
Section 5.9. Title to and Sufficiency of Assets...............-23-
i
<PAGE>
Section 5.10. Contracts.......................................-23-
Section 5.11. Labor Matters...................................-24-
Section 5.12. Employee Benefit Plans..........................-25-
Section 5.13. Tax Matters.....................................-27-
Section 5.14. Insurance and Reinsurance.......................-28-
Section 5.15. Officers' and Directors' Liability Insurance....-28-
Section 5.16. Compliance with Law.............................-28-
Section 5.17. Environmental Matters...........................-29-
Section 5.18. Transactions With Affiliates....................-29-
Section 5.19. Fees and Expenses of Brokers and Others.........-29-
Section 5.20. Accuracy of Information.........................-29-
Section 5.21. Absence of Undisclosed Liabilities..............-30-
Section 5.22. Opinion of Financial Advisor....................-30-
Section 5.23. DGCL Section 203................................-30-
ARTICLE VI
Section 6.1. Conduct of the Businesses of UNC and Greenwich...-30-
Section 6.2. No Solicitation..................................-33-
Section 6.3. The UNC Proxy Statement..........................-33-
Section 6.4. Access to Information: Confidentiality Agreements-34-
Section 6.5. Best Efforts.....................................-34-
Section 6.6. Consents.........................................-35-
Section 6.7. Public Announcements.............................-35-
Section 6.8. [Intentionally omitted]
Section 6.9. Indemnification: Insurance......................-35-
Section 6.10. Board of Directors Approval.....................-36-
Section 6.11. UNC Stock Options...............................-36-
Section 6.12. Best Efforts, etc...............................-36-
Section 6.13. HSR Act.........................................-36-
Section 6.14. Interim Financials..............................-36-
Section 6.15. Material Events.................................-36-
Section 6.16. Rights Agreement................................-36-
Section 6.17. Reversion to Prior Agreement....................-37-
Section 6.18. Amendment of GE-Greenwich Merger Agreement......-37-
ARTICLE VII
Section 7.1. Greenwich Stockholder Approval...................-37-
Section 7.2. UNC Stockholder Approval.........................-38-
Section 7.3. Absence of Order.................................-38-
Section 7.4. Certain Approvals................................-38-
Section 7.5. Other Consents and Approvals.....................-38-
ARTICLE VIII
ii
<PAGE>
Section 8.1. Representations and Warranties True..............-38-
Section 8.2. UNC's Performance................................-38-
Section 8.3. Resignation......................................-38-
Section 8.4. Certificates.....................................-39-
Section 8.5. SERP Termination.................................-39-
Section 8.6. Consummation of the GE/Greenwich Merger..........-39-
ARTICLE IX
Section 9.1. Representations and Warranties True..............-39-
Section 9.2. Greenwich's and Merger Sub's Performance.........-39-
Section 9.3. Certificates.....................................-39-
Section 9.4. Modification and Assumption of SERP/CIC Payments.-39-
ARTICLE X
Section 10.1. Time and Place..................................-40-
ARTICLE XI
Section 11.1. Termination.....................................-40-
Section 11.2. Effect of Termination...........................-41-
Section 11.3. Termination Payments and Expenses...............-41-
ARTICLE XII
Section 12.1. Expenses........................................-42-
Section 12.2. No Survival of Representations and Warranties...-43-
Section 12.3. Headings........................................-43-
Section 12.4. Notices.........................................-43-
Section 12.5. Assignment......................................-44-
Section 12.6. Complete Agreement..............................-44-
Section 12.7. Modifications, Amendments and Waivers...........-44-
Section 12.8. Counterparts....................................-44-
Section 12.9. Governing Law...................................-44-
Section 12.10.Accounting Terms................................-45-
Section 12.11.Severability....................................-45-
Section 12.12.Schedules to Prior Agreement....................-45-
iii
<PAGE>
SCHEDULES
Schedule 1.18 Knowledge of Greenwich
Schedule 1.19 Knowledge of UNC
Schedule 1.26A Partnerships of Greenwich
Schedule 1.26B Partnerships of UNC
Schedule 1.28 Plan of Merger
Schedule 1.38A Subsidiaries of Greenwich
Schedule 1.38B Subsidiaries of UNC
Schedule 3.1A Certain Shareholders of UNC
Schedule 3.1B Form of UNC Shareholder Letter
Schedule 4.2 Greenwich Options, Warrants, Subscriptions or Other Rights
Schedule 4.4 Greenwich Required Consents
Schedule 4.10 Tax Matters Concerning Greenwich
Schedule 5.2 UNC Outstanding Options, Warrants, Subscriptions or Other Rights
Schedule 5.4 UNC Required Consents
Schedule 5.6 Adverse Changes Affecting UNC
Schedule 5.8 UNC Litigation
Schedule 5.9 Certain Permitted Liens
Schedule 5.11 UNC Labor Matters
Schedule 5.12 UNC Benefit Plans
Schedule 5.13 Tax Matters Concerning UNC
Schedule 5.15 Transactions With Affiliates by UNC
Schedule 6.8A Certain Agreements to be Terminated Prior to Closing
Schedule 6.8B Amendments to Certain Leases to be Effected Before Closing
Schedule 6.9 Form of UNC Affiliate Letter
Schedule 6.14 Certain UNC Shareholders
iv
<PAGE>
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement"), made and entered into and executed this 9th day of March 1997, by
and between GREENWICH AIR SERVICES, INC., a Delaware corporation ("Greenwich"),
CONDOR ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary
of Greenwich ("Merger Sub"), and UNC INCORPORATED, a Delaware corporation
("UNC"), amends and restates in its entirety that certain Agreement and Plan of
Reorganization, dated as of February 13, 1997 (the "Agreement Date") by and
between Greenwich and UNC (the "Prior Agreement").
RECITALS
Greenwich and UNC have heretofore entered into the Prior Agreement,
pursuant to which Greenwich agreed (subject to the terms and conditions set
forth therein) to acquire all of the outstanding "UNC Common Stock Equivalents"
(which term includes issued and outstanding shares of UNC Common Stock and
shares of UNC Common Stock issuable upon conversion of shares of UNC Class B
Preferred Stock and the exercise of currently outstanding options to acquire
shares of UNC Common Stock) at a value of not less than $14.00 per UNC Common
Stock Equivalent (subject to adjustment) in a merger of UNC with and into
Condor. The consideration payable to the holders of UNC Common Stock Equivalents
pursuant to the Prior Agreement was payable in shares of Greenwich Class B
Common Stock or, to the extent elected by each such holder (and subject to the
limitations contained in the Prior Agreement), in cash at the rate of $14.00 per
UNC Common Stock Equivalent.
Simultaneously with the execution of this Agreement, Greenwich is entering
into the GE-Greenwich Merger Agreement (as defined below), pursuant to which GE
has agreed (subject to the conditions therein set forth) to acquire all of the
issued and outstanding common stock of Greenwich.
In connection with the foregoing transaction, the Boards of Directors of
Greenwich and UNC have determined that it is in the best interests of the
respective stockholders of Greenwich and UNC, and accordingly Greenwich and UNC
have agreed, to amend and restate the Prior Agreement to provide for the
acquisition by Greenwich of all outstanding UNC Common Stock Equivalents for
cash at the rate of $15.00 per UNC Common Stock Equivalent, all on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants, agreements and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
In addition to the other terms defined in this Agreement, as used herein,
the following terms shall have the meanings set forth below:
Section 1.1. "Agreement" shall mean this Amended and Restated Agreement
and Plan of Merger (including the Recitals hereto), together with the
Certificate of Merger and other Exhibits and Schedules attached hereto, as
amended from time to time in accordance with the terms hereof.
Section 1.2. "Affiliate" of any specified Person shall mean any other
Person directly or indirectly controlling or controlled by or under common
control with such specified Person. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
Section 1.3. "Affiliated Group" shall mean an affiliated group as defined
in Section 1504 of the Code (or any analogous combined, consolidated or unitary
group defined under any domestic or foreign Tax law) of which any of UNC and UNC
Subsidiaries or Greenwich and Greenwich Subsidiaries are members.
Section 1.4. "AlliedSignal Agreements" shall mean the collective reference
to the following agreements, as amended from time to time: (a) the Asset and
Stock Purchase Agreement, dated May 26, 1994 between LDC Aviation Services, Inc.
("Garrett") and AlliedSignal Corporation ("AlliedSignal"); (b) the agreement
dated April 25, 1996 between UNC and AlliedSignal, which expires on December 31,
1997 and authorizes UNC to perform repairs on certain AlliedSignal parts and
components; and (c) the operating agreement dated June 24, 1994 between Garrett
and AlliedSignal expiring June 30, 2009; copies of all of which AlliedSignal
Agreements have been furnished to Greenwich.
Section 1.5. "Audited 1996 Statements" shall mean the audited consolidated
balance sheet as at December 31, 1996 of the UNC Companies, together with the
related audited consolidated statement of income, statement of cash flows and
statement of stockholders' equity, and with all applicable notes and schedules,
all of which, when issued will have been audited by the UNC Auditors, in
accordance with GAAP and Regulation S-X, as promulgated under the Securities
Act.
Section 1.6. "Certificate of Merger" shall mean the certificate of merger
to be filed by the Constituent Corporations, in form and content reasonably
satisfactory to counsel to UNC and Greenwich.
-2-
<PAGE>
Section 1.7. "Closing" shall have the meaning given in Section 10.1, and
the term "Closing Date" shall mean the date on which the Closing occurs.
Section 1.8. "Code" shall mean, as appropriate, the Internal Revenue Code
of 1954 or of 1986, each as amended.
Section 1.9. "Confidentiality Agreement" shall mean the Confidentiality
Agreement dated November 8, 1996 between UNC and Greenwich.
Section 1.10. "Constituent Corporations" shall mean UNC and Merger Sub,
which shall be the parties to the Merger.
Section 1.11. "Contract" shall mean any contract, agreement, lease,
license, arrangement, understanding, relationship or commitment, written or
oral.
Section 1.12. "DGCL" shall mean the Delaware General Corporation Law, as
amended.
Section 1.13. "J.P. Morgan" shall mean J.P. Morgan Securities Inc.,
financial advisors to UNC.
Section 1.14. "Effective Time" has the meaning given in Section 3.2.
Section 1.15. "Employee Plan Event" shall mean, with respect to any
Employee Plan relating to the operations of any of the UNC Companies, any of the
events described in clauses (i) through (xi) below, in each case, as of the date
hereof and as of the Closing Date, as applicable:
(i) a "reportable event" (within the meaning of Section 4043 of
ERISA) for which the requirement of notice within 30 days to the PBGC is
not waived or which is described in 29 C.F.R. Section 2615.12 or 2615.15;
(ii) the failure to meet the minimum funding standard of Section 412
of the Code (whether or not waived in accordance with Section 412(d) of
the Code) or the failure to make by its due date a required installment
under Section 412(m) of the Code;
(iii) the provision by the administrator of any plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan
in a distress termination described in Section 401(c) of ERISA;
(iv) the withdrawal from any plan during a plan year by a
"substantial employer" as defined in Section 4001(a)(2) of ERISA resulting
in liability pursuant to Section 4062(e) or Section 4063 of ERISA;
-3-
<PAGE>
(v) the institution by the PBGC of proceedings to terminate any
plan, or the occurrence of any event or condition which might constitute
grounds under ERISA for the termination or the appointment of a trustee to
administer, any plan;
(vi) the imposition of liability pursuant to Section 4064 or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the complete or partial withdrawal (within the meaning of
Sections 4203 and 4205 of ERISA) from any multiemployer plan if there is
any potential liability therefor, or the receipt of notice from any
multiemployer plan that it is in reorganization or insolvency pursuant to
Sections 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Sections 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to
the imposition of fines, penalties, taxes or related charges under Chapter
43 of the Code or under Section 409, 502(c), 504(1) or 4071 of ERISA in
respect of any plan;
(ix) the assertion of a material claim (other than routine claims
for benefits) against any plan other than a multiemployer plan or the
assets of any plan, or against the plan sponsor in connection with any
such plan;
(x) receipt from the IRS of notice of the failure of any Qualified
Plan to qualify under Section 401(a) of the Code, or the failure of any
trust forming part of any Qualified Plan to qualify for exemption from
taxation under Section 501(a) of the Code;
(xi) the imposition of a lien on any assets of the person
maintaining or contributing to any plan pursuant to Sections 401(a)(29) or
412(n) of the Code or pursuant to ERISA.
Section 1.16. "Employee Plan" shall mean, as of the date hereof and as of
the Closing Date, as applicable, any plan, contract, commitment, program,
policy, arrangement, understanding or practice providing benefits to any
employee, former employee, director or agent of any of the UNC Companies
(whether or not the Person maintains, contributes to, or is bound by any such
plan, contract, commitment, program, policy, arrangement, understanding or
practice, or under which any of the UNC Companies contributes, has contributed
or has any obligation to contribute), including, without limitation (i) any
"employee benefit plan" (within the meaning of Section 3(3) of ERISA), (ii) any
profitsharing, deferred compensation, bonus, stock option, stock purchase,
pension, retainer, consulting, retirement, severance, welfare or incentive plan,
contract, commitment, program, policy, arrangement, understanding or practice,
(iii) any plan, contract, commitment, program, policy, arrangement,
understanding or practice providing for "fringe benefits" or perquisites,
including, without limitation, benefits relating to automobiles, clubs,
vacation, child care, parenting, sabbatical or sick leave and medical, dental,
hospitalization, life insurance and other types of insurance, (iv) any Pension
Plan, and (v) any Multiemployer Plan.
-4-
<PAGE>
Section 1.17. "Environmental Assessment" shall mean any one or more
reviews, studies and/or reports by an independent environmental consultant,
which may include, without limitation, one or more Phase I and/or Phase II
studies, updates thereof, compliance audits, health and safety audits, and
related testing for hazardous substances, toxic substances, hazardous wastes
and/or toxic pollutants (as defined under Environmental Laws), for the purpose
of determining whether any of the UNC Companies is in compliance with
Environmental Laws, and/or whether there exists any condition or circumstance
which authorizes or may require any corrective action, cleanup, removal or other
remedial action under Environmental Laws on the part of any of the UNC Companies
or any Real Estate owned or leased by any of the UNC Companies.
Section 1.18. "Environmental Laws" shall mean and include all federal,
state and local laws, statutes, regulations, permits, orders, ordinances, codes,
rules and other governmental restrictions, requirements and duties, including
common law, relating to the treatment, storage, disposal or release of air
pollutants, water pollutants or processed waste water or otherwise relating to
human health, the environment or hazardous substances, including but not limited
to the Federal Solid Waste Disposal Act; the Federal Clean Air Act (including,
without limitation, the Clean Air Act Amendments of 1990); the Federal Water
Pollution Control Act; the Hazardous Materials Transportation Act; the Federal
Toxic Substances Control Act; the Federal Resource Conservation and Recovery Act
of 1976; the National Environmental Policy Act; the Federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") and
similar state laws, all amendments to any of the foregoing statutes, and all
regulations promulgated by any federal or state agencies, including the
Environmental Protection Agency, regulations of the Nuclear Regulatory Agency,
and regulations of any state department of natural resources or state
environmental protection agency now or at any time hereinafter in effect.
The terms "hazardous substances", "release", "respond", "response", and
all variations and derivatives thereof shall mean and include, without
limitation, all radioactive materials, asbestos and asbestos-containing
materials, PCBs, petroleum products and by-products, all solid, semi-solid,
liquid or gaseous substances which are toxic, ignitable, corrosive, carcinogenic
or otherwise dangerous to human, plant or animal health, and all substances
defined or listed as "hazardous substances", "toxic substances", "hazardous
waste", "toxic pollutants" in, or otherwise regulated under any Environmental
Law, including, without limitation, the meanings ascribed to them in CERCLA.
Section 1.19. "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
Section 1.20. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
Section 1.21. "GAAP" shall mean generally accepted accounting principles
as in effect in the United States of America at the time of the preparation of
the subject financial statement.
-5-
<PAGE>
Section 1.22. "GE" shall mean General Electric Company, a New York
corporation.
Section 1.23. "Governmental Authority" shall mean any federal, state,
provincial, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, or any court, in each case whether of the
United States, any of its possessions or territories, or of any foreign nation.
Section 1.24. "Greenwich" shall mean Greenwich Air Services, Inc., a
Delaware corporation.
Section 1.25. "Greenwich Class A Stock" shall mean the Class A voting
common stock, $.01 par value per share, of Greenwich.
Section 1.26. "Greenwich Class B Stock" shall mean the Class B nonvoting
common stock of Greenwich, $.01 par value per share.
Section 1.27. "GE/Greenwich Merger" shall mean the merger of Greenwich
with and into GE or a wholly-owned subsidiary of GE pursuant to the GE-Greenwich
Merger Agreement.
Section 1.28. "GE-Greenwich Merger Agreement" shall mean the Agreement and
Plan of Merger, dated March 9, 1997, among GE, GB Merger Corp., a wholly-owned
subsidiary of GE ("Mergerco"), and Greenwich pursuant to which it is
contemplated that as at the effective time of the GE/Greenwich Merger, Greenwich
will be merged with and into Mergerco, with Mergerco as the surviving
corporation of such GE/Greenwich Merger; a true copy of which GE-Greenwich
Merger Agreement has been furnished to UNC.
Section 1.29. "Indebtedness" shall mean, with respect to UNC, any UNC
Subsidiary and the UNC Companies, as a consolidated whole, as applicable (a) all
indebtedness, whether or not contingent, for borrowed money, (b) all obligations
for the deferred purchase price of property or services except trade accounts
payable and accrued liabilities that arise in the ordinary course of business,
(c) all obligations evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property acquired (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, under acceptance, letter of credit or similar
facilities, (g) all obligations to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock or any warrants, rights or options
to acquire such capital stock, valued, in the case of redeemable preferred
stock, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends but only to the extent such obligation is
payable (i) at a fixed or determinable date, whether by operation of a sinking
fund or otherwise, (ii) at the option of any other Person or (iii) upon the
occurrence of a condition not solely within their control, such as a redemption
required to be made out of
-6-
<PAGE>
future earnings, (h) all Indebtedness of others referred to in clauses (a)
through (f) above guaranteed directly or indirectly in any manner or in effect
guaranteed directly or indirectly through an agreement (A) to pay or purchase
such Indebtedness or to advance or supply funds for the payment or purchase of
such Indebtedness, (B) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (C) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered)
or (D) otherwise to assure a creditor against loss, and (i) all Indebtedness
referred to in clauses (a) through (f) above secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any encumbrance on property (including, without limitation, accounts
and contract rights) owned, even though payment of such Indebtedness has not
been assumed or become a liability.
Section 1.30. "HSR Act" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
Section 1.31. "IRS" shall mean the Internal Revenue Service.
Section 1.32. "Knowledge of Greenwich" shall mean the actual knowledge,
after due inquiry, of those officers Greenwich identified in Schedule 1.45.
Section 1.33. "Knowledge of UNC" shall mean the actual knowledge, after
due inquiry, of those officers of UNC identified in Schedule 1.46.
Section 1.34. "Law" shall mean any federal, state, provincial, local or
other law or governmental requirement of any kind, and the rules, regulations
and orders promulgated thereunder.
Section 1.35. "Merger" shall have the meaning given in Section 2.1.
Section 1.36. "Merger Consideration" means the amounts payable to holders
of shares of UNC Stock as described in Section 2.2.
Section 1.37. "Multiemployer Plan" shall mean an Employee Plan that is a
"multiemployer plan" within the meaning of Section 3(37) of ERISA, to which any
of the Sellers or Businesses contributes or has contributed or has or has had an
obligation to contribute.
Section 1.38. "Nasdaq" shall mean The Nasdaq National Market.
Section 1.39. "NYSE" shall mean The New York Stock Exchange, Inc.
Section 1.40. "Partnership" shall mean any limited or general partnership,
joint venture or other business association, other than a Subsidiary, in which
any party has a direct or indirect
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interest (collectively, "Partnerships"), all of such Partnerships of Greenwich
being listed on Schedule 1.53A attached hereto and all of such Partnerships of
UNC being listed on Schedule 1.53B attached hereto.
Section 1.41. "Pension Plan" shall mean an Employee Plan, other than a
Multiemployer Plan, that is either (a) covered by Title IV of ERISA or subject
to the minimum funding standards of Section 412 of the Code, or (b) an Employee
Plan in the nature of a defined contribution or defined benefit pension plan
under the laws of the United Kingdom and/or Scotland.
Section 1.42. "Person" shall mean any individual, partnership, firm,
corporation, limited liability company, association, trust, unincorporated
organization or other entity, as well as any syndicate or group that would be
deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
Section 1.43. "Permits" shall mean permits, licenses and governmental
authorizations, registrations and approvals.
Section 1.44. "Real Estate" shall mean, with respect to any of the UNC
Companies, as applicable, all of the fee or leasehold ownership right, title and
interest of such UNC Company, in and to all real estate and improvements owned
or leased by any of the UNC Companies and which is used by any of the UNC
Companies in connection with the operation of the UNC Businesses, including
without limitation, all of the real estate and improvements described on
Schedule 1.60.
Section 1.45. "Schedules" shall mean the confidential disclosure schedules
prepared by UNC and Greenwich, respectively, annexed (or deemed annexed pursuant
to Section 12.12) to this Agreement and made a part hereof, as the same may be
modified or updated by agreement of the parties through and including the
Closing Date. A disclosure contained in any one Schedule shall be deemed to be a
disclosure for any and all purposes hereunder.
Section 1.46. "SEC" shall mean the Securities and Exchange Commission.
Section 1.47. "Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.48. "Series B Preferred Stock Purchase Agreement" shall mean the
securities purchase agreement, dated as of October 4, 1995 between UNC and
Network m Holdings, LDC, Gildea Investment Company, Iron City Partners, Inc.,
Ariel Fund Ltd. and Pequod Investments, L.P., pursuant to which UNC sold for $25
million an aggregate of 250,000 shares of UNC Series B Preferred Stock.
Section 1.49. "Stock Options" shall mean the collective reference to (a)
the various types of UNC stock options which are authorized for issuance under
the Stock Option Plans, (b) the outstanding warrants to purchase shares of UNC
Common Stock, all of which are reflected
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on Schedule 5.2, and (c) the right to acquire shares of UNC Common Stock
pursuant to the 7-1/2% UNC Convertible Debentures.
Section 1.50. "Stock Option Plans" shall mean the individual and
collective reference to all qualified and nonqualified stock option plans,
incentive stock option plans, non-employee directors' stock option plans and
other rights to purchase shares of UNC Common Stock granted to employees, and
which are summarized and disclosed on Schedule 5.2.
Section 1.51. "Subsidiary" shall mean (i) each corporate entity with
respect to which a party has the right to vote (directly or indirectly Through
one or more other entities or otherwise) shares representing 50% or more of the
votes eligible to be cast in the election of directors of such entity, and (ii)
each other corporate entity which constitutes a "significant subsidiary," as
defined in Rule 1-02 of Regulation S-X adopted under the Exchange Act
(collectively, "Subsidiaries"), all of the Subsidiaries of Greenwich being
listed on Schedule 1.39 and all of the Subsidiaries of UNC being listed on
Schedule 1.84.
Section 1.52. "Stockholders' Meeting" shall mean the special or annual
meeting of stockholders of UNC called pursuant to Section 3.1 to consider and
approve the transactions contemplated herein, and any adjournments thereof.
Section 1.53. "UNC" shall mean UNC Incorporated, a Delaware corporation.
Section 1.54. "Businesses" shall mean, as of the specific date referenced,
the collective reference to the UNC Garrett Business, the UNC Manufacturing
Business and the UNC Lear Siegler Business, as presently conducted by the UNC
Companies and their respective business operations.
Section 1.55. "UNC Common Stock" shall mean the Common Stock, $0.20 par
value per share, of UNC.
Section 1.56. "UNC Companies" shall mean UNC, its Subsidiaries and the
Partnerships in which it has an interest.
Section 1.57. "UNC Financial Statements" shall mean (a) the audited
consolidated balance sheet of UNC as of December 31,1995, and the audited
consolidated statements of earnings, stockholders' equity and cash flows for the
fiscal year then ended, together with the notes thereto, and (b) the UNC SEC
Reports, true and correct copies of which have been provided to Greenwich by
UNC.
Section 1.58. "UNC Garrett Business" shall mean the overhaul, maintenance
and repair of gas turbine aircraft and aircraft engines and accessories,
airframe retrofits and completion and spare parts distribution, primarily for
business aircraft.
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Section 1.59. "UNC Lear Siegler Business" shall mean the provision of
contract services to United States and foreign military and other government
agencies, consisting primarily of aircraft maintenance and pilot training.
Section 1.60. "UNC Manufacturing Business" shall mean the provision of
specialized aviation product manufacturing and repair services on an outsourced
basis for the major engine and airframe OEMs and the provision of manufactured
products and repairs directly to the United States military.
Section 1.61. "UNC Material Adverse Effect" shall mean any circumstances,
change in, or effect on, the UNC Companies, when taken as a consolidated whole,
or affecting the UNC Garrett Business, the UNC Lear Siegler Business or the UNC
Manufacturing Business, whether individually or collectively as to any one or
more of such UNC Businesses, 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 budgets and forecasts or the business prospects and
condition (financial or otherwise) of the UNC Companies or any one or more of
UNC Businesses, whether individually or taken as a consolidated whole with
respect to the UNC Companies.
Section 1.62. "UNC Material Contracts" shall mean the types of Contracts
referred to in Section 5.10 of this Agreement to which UNC or any of UNC
Subsidiaries is a party signatory, including, without limitation, the
AlliedSignal Agreements.
Section 1.63. "UNC Notes" shall mean the collective reference to (a) UNC's
9-1/8% $100 million principal amount Senior Notes Due 2003 (the "9-1/8% UNC
Notes"), (b) UNC's 11% $125 million principal amount Senior Subordinated Notes
Due 2006 (the "11% UNC Notes"), and (c) UNC's 7-1/2% $64.8 million Junior
Convertible Subordinated Debentures Due 2006 (the "7-1/2% UNC Convertible
Debentures").
Section 1.64. "UNC Preferred Stock" shall mean the collective reference to
12,000,000 authorized shares of UNC preferred stock, $1.00 par value per share,
of which (a) 250,000 shares of Series A Junior Participating Preferred Stock are
authorized for issuance, (b) 250,000 shares of UNC Series B Preferred Stock are
authorized, and (c) 250,000 of Series C Senior Cumulative Preferred Stock are
authorized.
Section 1.65. "UNC Proxy Statement" shall mean the UNC Proxy Statement to
be distributed by UNC to its stockholders in connection with the matters to be
voted upon at the UNC Stockholders Meeting, as contemplated by Section 3.1.
Section 1.66. "UNC SEC Reports" shall mean (a) UNC's Annual Reports on
Form 10-K for the fiscal years ended December 31, 1995, December 31, 1994, and
December 31, 1993, and (b) all other documents, reports and registration
statements filed by UNC with the SEC pursuant to the Exchange Act and the
Securities Act.
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Section 1.67. "UNC Series B Preferred Stock" shall mean the 250,000
authorized, issued and outstanding shares of Series B senior cumulative
convertible UNC Preferred Stock, par value $1.00 per share.
Section 1.68. "UNC Stock" shall mean UNC Common Stock or UNC Series B
Preferred Stock.
Section 1.69. "UNC Subsidiary" or "UNC Subsidiaries" shall mean the
singular or plural reference, as the case may be, to any one or more direct or
indirect Subsidiaries of UNC, all of which are listed (including their states of
incorporation and percentage of outstanding capital stock directly or indirectly
beneficially owned by UNC) on Schedule 1.84.
Section 1.70. "Taxes" shall mean 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 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, 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.
Section 1.71. "Tax Return" shall mean 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 UNC Benefit Plans.
Section 1.72. "Salomon" shall mean Salomon Brothers Inc. financial
advisors to Greenwich.
Section 1.73. "UNC 1996 Management Statements" shall mean the unaudited
financial statements of UNC included in confidential Annex 1.73 to this
Agreement.
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ARTICLE II
THE MERGER
Section 2.1. The Merger.
(a) Subject to the terms and conditions of this Agreement, at the
Effective Time, Merger Sub shall be merged with and into UNC (the "Merger") and
the separate existence of Merger Sub shall thereupon cease, with UNC being the
surviving corporation in the Merger (the "Surviving Corporation"). Upon the
effectiveness of the Merger, UNC shall possess all of the rights, privileges,
powers and franchises of all of the Constituent Corporations, and all property,
real, personal and mixed, and all debts due to any of the Constituent
Corporations on whatever account, including stock subscriptions and all other
things in action, of or belonging to each of the Constituent Corporations shall
be vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of the
Constituent Corporations, and the title to any Real Estate vested by deed or
otherwise in any of the Constituent Corporations shall not revert or be in any
way impaired by reason of the Merger; but all rights of creditors and all liens
upon any property of any of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to the Surviving Corporation, and may be
enforced against it to the same extent as if said debts, liabilities and duties
had been incurred or contracted by it.
(b) The Certificate of Merger shall be in form and substance
satisfactory to the parties hereto and their respective legal counsel.
(c) The Certificate of Incorporation of Merger Sub as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation, and thereafter may be amended in
accordance with its terms and as provided by law.
(d) The Bylaws of Merger Sub as in effect at the Effective Time
shall be the Bylaws of the Surviving Corporation.
(e) The entire board of directors of the Surviving Corporation shall
consist of (i) the existing directors of Merger Sub at the Effective Time or
(ii) such other Persons as shall be determined solely by GE pursuant to the
terms and conditions of the GE-Greenwich Merger Agreement (the "Surviving
Corporation Board"). The members of the Surviving Corporation Board shall serve
until their respective successors are duly elected and qualified in the manner
provided in the Certificate of Incorporation and Bylaws of the Surviving
Corporation, or as otherwise provided by law. All of the members of the Board of
Directors of UNC shall tender their written resignations effective as of the
Effective Time.
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(f) The officers of the Surviving Corporation shall initially
consist of the persons listed in Schedule 2.1(f) or such other persons
acceptable to the Surviving Corporation Board; which officers shall serve until
their successors are duly elected and qualified in the manner provided in the
Certificate of Incorporation and Bylaws of the Surviving Corporation, or as
otherwise provided by law.
(g) Restructuring. The parties agree that, at the request of
Greenwich, one or more other Persons may be added or substituted as Constituent
Corporations, and that a Constituent Corporation other than UNC may be
designated as the Surviving Corporation, in the Merger, provided that there is
no diminution or impairment of the rights and benefits inuring to the benefit of
the stockholders, officers, or directors of UNC hereunder and no increase in the
obligations or potential obligations of any of the foregoing as a result
thereof.
Section 2.2. Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of Merger Sub, UNC, or any holder
of the securities of either:
(a) Common Shares. Each share of UNC Common Stock issued and
outstanding immediately before the Effective Time (other than Treasury Shares to
be canceled pursuant to Section 2.2(c) and any Dissenting Shares (as hereinafter
defined)) shall be canceled and shall be converted automatically into the right
to receive an amount equal to $15.00 in cash (the "Merger Consideration")
payable, without interest, to the holder of such share upon surrender, in the
manner provided in Section 2.3, of the certificate that formerly evidenced such
share.
(b) Preferred Shares. Each share of UNC Series B Preferred Stock
issued and outstanding immediately before the Effective Time shall be canceled
and shall be converted automatically into the right to receive an amount equal
to $15.00 in cash multiplied by the number of shares (including any fraction of
a share) of UNC Common Stock into which such share of UNC Series B Preferred
Stock is convertible immediately before the Effective Time.
(c) Treasury Shares. All issued and outstanding shares of UNC Stock
which are held by IJNC, any Subsidiary of UNC, Greenwich, Merger Sub or any
other Subsidiary of Greenwich ("Treasury Shares") shall be canceled and no
consideration shall be issued in respect thereof.
(d) Dissenting Shares. Notwithstanding the foregoing provisions or
any other provision of this Agreement to the contrary, shares of UNC Stock held
by any holder who shall have taken the necessary steps under the DGCL to dissent
and demand payment and is otherwise entitled to such payment under the DGCL, if
the DGCL provides for such payment in connection with the Merger ("Dissenting
Shares"), shall not be converted into the right to receive Merger Consideration
at or after the Effective Time unless and until the holder of such Dissenting
Shares withdraws his or her demand for such appraisal with the consent of UNC,
if required by the DGCL, or becomes ineligible for such appraisal. If a holder
of Dissenting Shares shall withdraw
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his or her demand for such appraisal with the consent of UNC, if required by the
DGCL, or shall become ineligible for such appraisal (through failure to perfect
or otherwise), then, as of the Effective Time or the occurrence of such event,
whichever last occurs, such holder's Dissenting Shares shall automatically be
converted into and represent the right to receive the Merger Consideration as
provided above. UNC shall give Greenwich (i) prompt notice of any written
demands for appraisal, withdrawals of demands for appraisal and any other
instruments served pursuant to Section 262 of the DGCL received by UNC, and (ii)
the opportunity to direct all negotiations and proceedings with respect to
demands for appraisal under Section 262 of the DGCL. UNC will not voluntarily
make any payment with respect to any demands for appraisal and will not, except
with the prior written consent of Greenwich, settle or offer to settle any such
demands. Each holder of Dissenting Shares shall have only such rights and
remedies as are granted to such a holder under Section 262 of the DGCL.
(e) Shares of Merger Sub. Each share of Common Stock, par value $.01
per share, of Merger Sub issued and outstanding immediately before the Effective
Time shall be converted into and exchanged for one validly issued, fully paid
and nonassessable share of Common Stock, par value $.01 per share, of the
Surviving Corporation.
Section 2.3. Surrender of Certificates: Stock Transfer Books. (a) Before
the Effective Time, Merger Sub shall designate a bank or trust company to act as
agent (the "Paying Agent") for the holders of shares of UNC Stock in connection
with the Merger. From and after the Effective Time Greenwich shall cause funds
to be deposited with the Paying Agent sufficient to pay the amounts to which the
holders of shares of UNC Stock shall become entitled pursuant to Section 2.2.
Such funds shall be invested by the Paying Agent as directed by the Surviving
Corporation, provided that such investments shall be in obligations of or
guaranteed by the United States of America or of any agency thereof and backed
by the full faith and credit of the United States of America, in commercial
paper obligations rated A-1 or P-1 or better by Moody's Investors Services, Inc.
or Standard & Poor's Corporation, respectively, or in deposit accounts,
certificates of deposit or banker's acceptances of, repurchase or reverse
repurchase agreements with, or Eurodollar time deposits purchased from,
commercial banks with capital, surplus and undivided profits aggregating in
excess of $1 billion (based on the most recent financial statements of such bank
which are then publicly available to the SEC or otherwise).
(b) Promptly after the Effective Time, the Surviving Corporation
shall cause to be mailed to each person who was, at the Effective Time, a holder
of record of shares of UNC Stock entitled to receive the Merger Consideration
pursuant to Section 2.2 a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the certificates
evidencing such shares of UNC Stock ("UNC Certificates") shall pass, only upon
proper delivery of the UNC Certificates to the Paying Agent) and instructions
for use in effecting the surrender of the UNC Certificates pursuant to such
letter of transmittal. Upon surrender to the Paying Agent of a UNC Certificate,
together with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and such other documents as may be
required pursuant to such instructions, the holder of such UNC Certificate shall
be entitled to receive in exchange therefor the Merger Consideration for each
share of UNC
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Stock formerly evidenced by such UNC Certificate, and such UNC Certificate shall
then be cancelled. No interest shall accrue or benefit the holder of such UNC
Certificate.
(c) At any time after six (6) months from the Effective Time, the
Surviving Corporation shall be entitled to require the Paying Agent to deliver
to it any funds which had been made available to the Paying Agent and not
disbursed to holders of shares of UNC Stock (including, without limitation, all
interest and other income received by the Paying Agent in respect of all funds
made available to it), and thereafter such holders shall be entitled to look to
the Surviving Corporation (subject to abandoned property, escheat and other
similar laws) only as general creditors thereof with respect to any Merger
Consideration that may be payable upon due surrender of the UNC Certificates
held by them.
(d) After the Effective Time, there shall be no transfers on the
stock transfer books of UNC of any shares of UNC Stock that were outstanding
immediately before the Effective Time. If, after the Effective Time, UNC
Certificates are presented to Greenwich or UNC for transfer, they shall be
cancelled and exchanged for payment of the applicable amount of Merger
Consideration as provided in Section 2.2, in accordance with the procedures set
forth in this Section 2.3.
(e) Notwithstanding the foregoing, neither Greenwich nor UNC shall
be liable to any holder of shares of UNC Common Stock or UNC Series B Preferred
Stock for any payment of the per share cash portion of the Merger Consideration
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
Section 2.4. Transfer Taxes. If cash is to be paid to a person other than
the holder in whose name the certificate representing shares of UNC Stock
surrendered in exchange therefor is registered, it shall be a condition of such
exchange that the certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting such
exchange shall pay to the Paying Agent any transfer or other taxes required by
reason of the payment of such cash to a person other than the registered holder
of the certificate surrendered or shall establish to the satisfaction of the
Paying Agent that such tax has been paid or is not applicable.
Section 2.5. Stock Options. All unexercised UNC Stock Options which shall
be outstanding as at the Effective Time shall be canceled and converted into the
right to receive, in full consideration of such securities, a cash payment equal
to the product of: (a) the aggregate number of shares of UNC Common Stock
issuable upon exercise of such unexercised UNC Stock Options (the "Unexercised
Option Shares") by (b) the difference between $15.00 and the applicable exercise
price per share attributable to such Unexercised Option Shares (the "Spread").
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ARTICLE III
STOCKHOLDER APPROVAL
Section 3.1. Stockholder Approvals.
(a) Greenwich hereby covenants to UNC that Greenwich shall perform
its obligations under the GE-Greenwich Merger Agreement with respect to the
submission of the GE/Greenwich Merger Agreement for consideration and approval
to the holders of shares of Greenwich Class A Stock.
(b) This Agreement shall be submitted for consideration and approval
to the holders of shares of UNC Common Stock, at a special or annual meeting of
stockholders duly held for such purpose by UNC. UNC shall promptly take all
steps necessary to duly call, give notice of, convene, and hold such meeting as
soon as practicable following the date upon which the UNC Proxy Statement shall
be approved by the SEC.
(c) The UNC Board of Directors shall recommend that the UNC
stockholders approve and adopt this Agreement and the Certificate of Merger and
the transactions contemplated hereby and thereby, and such recommendation shall
be contained in the UNC Proxy Statement. The Greenwich Board of Directors shall
recommend that the Greenwich stockholders entitled to vote thereon approve the
GE-Greenwich Merger Agreement and the transactions contemplated thereby, and
such recommendation shall be contained in the Proxy Statement of Greenwich in
connection with the GE/Greenwich Merger.
Section 3.2. Effective Time of the Merger. As promptly as practicable
following the satisfaction or, if permissible, waiver of the conditions set
forth in Articles VII, VIII, and LO, the parties hereto shall cause the Merger
to be consummated by filing the Certificate of Merger with the Secretary of
State of the State of Delaware in accordance with the DGCL, and the Merger shall
become effective in accordance with the terms of the Certificate of Merger at
the time and date contemplated therein (such time and date being referred to
herein as the "Effective Time").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF GREENWICH AND MERGER SUB
Each of Greenwich and Merger Sub represents and warrants to UNC as
follows:
Section 4.1. Organization and Authority of the Greenwich and Merger Sub.
Each of Greenwich and Merger Sub is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of organization. Each of
Greenwich and Merger Sub has full corporate or partnership power to carry on its
respective business as it is now being conducted and to own, operate and hold
under lease its assets and properties as, and in the places where, such
properties and assets now are owned, operated or held. Each of Greenwich and
Merger Sub
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is duly qualified as a foreign entity to do business, and is in good standing,
in each jurisdiction where the failure to be so qualified would have a material
adverse effect on the ability of each of Greenwich and Merger Sub to consummate
the Merger.
Section 4.2. Authority Relative to this Agreement. The execution, delivery
and performance of this Agreement and of all of the other documents and
instruments required hereby by Greenwich and Merger Sub are within the corporate
power of Greenwich and Merger Sub. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Greenwich and Merger Sub and no other
corporate proceedings on the part of Greenwich and Merger Sub are necessary to
authorize this Agreement or to consummate the transactions contemplated herein
(other than the approval of the GE-Greenwich Merger Agreement by a majority of
the total votes cast by holders of Greenwich Class A Stock). This Agreement and
all of the other documents and instruments required hereby have been or will be
duly and validly executed and delivered by Greenwich and Merger Sub and
(assuming the due authorization, execution and delivery hereof and thereof by
UNC) constitute or will constitute valid and binding agreements of Greenwich and
Merger Sub, enforceable against Greenwich and Merger Sub in accordance with
their respective terms, except to the extent that enforceability may be governed
by equitable principles, applicable bankruptcy laws, and other rights affecting
creditors generally.
Section 4.3. Consents and Approvals: No Violations. Except for (i) any
applicable requirements of the Securities Act, the Exchange Act, the HSR Act,
Nasdaq and any applicable filings under state securities, "Blue Sky" or takeover
laws, (ii) the filing and recordation of a certificate of merger as required by
the DGCL and (iii) those required filings, registrations, consents and approvals
listed in Schedule 4.4, no filing or registration with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
or required in connection with the execution and delivery of this Agreement by
Greenwich and Merger Sub or for the consummation by Greenwich and Merger Sub of
the transactions contemplated by this Agreement, where the failure to obtain
such permit, authorization, consent or approval would have a material adverse
effect on the ability of Greenwich and Merger Sub to consummate the Merger.
Assuming that all filings, registrations, permits, authorizations, consents and
approvals contemplated by the immediately preceding sentence have been duly made
or obtained, neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated hereby by Greenwich and
Merger Sub will (i) conflict with or result in any breach of any provision of
the Certificates of Incorporation, bylaws, partnership or joint venture
agreements or other organizational documents of Greenwich or Merger Sub, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, or otherwise result in any diminution of
any of the rights of Greenwich or Merger Sub with respect to, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
Contract or other instrument or obligation to which Greenwich or Merger Sub is a
party or by which it or any of them or any of their properties or assets may be
bound, or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Greenwich or Merger Sub or any of their properties or
assets, except. in the case of subsections (ii) or (iii) above, for
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violations, breaches or defaults that would not have a material adverse effect
on the ability of Greenwich and Merger Sub to consummate the Merger and that
will not prevent or delay the consummation of the transactions contemplated
hereby.
Section 4.4. Fees and Expenses of Brokers and Others. None of Greenwich,
Merger Sub or any Affiliates of Greenwich (a) has had any dealings, negotiations
or communications with any broker or other intermediary in connection with the
transactions contemplated by this Agreement, (b) is committed to any liability
for any brokers' or finders' fees or any similar fees in connection with the
transactions contemplated by this Agreement, or (c) has retained any broker or
other intermediary to act on its behalf in connection with the transactions
contemplated by this Agreement, except that Greenwich has engaged Salomon to
represent it as its financial advisor in connection with the transactions
contemplated by this Agreement, and shall pay all of Salomon's fees and expenses
in connection with such engagement.
Section 4.5. Accuracy of Information . Neither this Agreement nor any
other document provided by Greenwich or Merger Sub or their employees or agents
to UNC 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 4.6. GE-Greenwich Merger Agreement. Greenwich has furnished to UNC
a true and complete copy of the GE-Greenwich Merger Agreement, which
GE/Greenwich Merger Agreement has been duly authorized by the Board of Directors
of Greenwich, and to the Knowledge of Greenwich, by the Board of Directors of
GE.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF UNC
UNC represents and warrants to Greenwich and Merger Sub as follows:
Section 5.1. Organization and Authority of the UNC Companies. Each of the
UNC Companies is duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of organization. Each of the UNC Companies
has full corporate or partnership power to carry on its respective business as
it is now being conducted and to own, operate and hold under lease its assets
and properties as, and in the places where, such properties and assets now are
owned, operated or held. Each of the UNC Companies is duly qualified as a
foreign entity to do business, and is in good standing, in each jurisdiction
where the failure to be so qualified would have a UNC Material Adverse Effect.
Schedule 1.84 constitutes a true and complete list of all of the Subsidiaries of
UNC, and Schedule 1.53B constitutes a true and complete list of all of the
Partnerships in which UNC has an interest. The copies of the Amended and
Restated Certificate of Incorporation and the Bylaws of UNC which have been
delivered to Greenwich are complete and correct and in full force and effect on
the date hereof.
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Section 5.2. Capitalization. The authorized capital stock of UNC consists
of: (a) 12,000,000 authorized shares of UNC Preferred Stock, $1.00 par value per
share, of which, on the Agreement Date (i) 250,000 shares of Series A Junior
Participating Preferred Stock are authorized, none of which are issued, (ii)
250,000 shares of Series B Preferred Stock are authorized, issued and
outstanding, and (iii) 250,000 shares of Series C Senior Cumulative Preferred
Stock are authorized, none of which are issued; and (b) 50,000,000 authorized
shares of UNC Common Stock, of which, as at December 31, 1996 (i) 18,276,681
shares of UNC Common Stock are issued and outstanding, (ii) 486,500 shares of
UNC Common Stock are held in treasury, (iii) shares of UNC Common Stock are
reserved for issuance pursuant to outstanding Stock Options granted under UNC
Stock Option Plans as described in Schedule 5.2 and (iv) an aggregate of
3,571,429 shares of UNC Common Stock are reserved for issuance upon conversion
of UNC Series B Preferred Stock. All shares of capital stock of UNC which are
outstanding as of the date hereof and which are reserved for issuance pursuant
to UNC Preferred Stock and UNC Stock Options, are duly authorized, and are, or
when issued will be, validly issued, fully paid and nonassessable, and are, or
when issued will not be, not subject to, nor were they issued in violation of,
any preemptive rights. Except as set forth in Schedule 5.2 and in this Section
5.2, there are no shares of capital stock of UNC authorized or outstanding, and
there are no subscriptions, options, conversion or exchange rights, warrants or
other agreements, claims or commitments of any nature whatsoever obligating UNC
or any UNC Subsidiary to issue, transfer, deliver or sell, or cause to be
issued, transferred, delivered or sold, additional shares of the capital stock
of UNC or any UNC Subsidiary or obligating UNC or any UNC Subsidiary to grant,
extend or enter into any such agreement or commitment. UNC has not, since
December 31, 1995, declared or paid any dividend on, or declared or made any
distribution with respect to, or authorized or effected any split-up or any
other recapitalization of, any of the UNC Common Stock, or directly or
indirectly redeemed, purchased or otherwise acquired any of its outstanding
capital stock or agreed to take any such action and will not take any such
action during the period between the date of this Agreement and the Effective
Time. Except as set forth on Schedule 5.2, there are no outstanding options,
warrants, subscriptions, conversion or exchange rights, agreements, claims,
commitments, or other rights to purchase or acquire any capital stock of UNC or
any of the other UNC Companies, and there are no Contracts pursuant to which UNC
or any of the other UNC Companies is bound to sell or issue any shares of its
capital stock, nor are there any Contracts obligating UNC or any of the other
UNC Companies to enter into or grant any such securities or rights. All
outstanding shares of UNC Common Stock are duly listed for trading on the NYSE.
(c) Set forth in Schedule 1.84 is the name, percentage ownership and
jurisdiction of incorporation of each UNC or any UNC Subsidiary. All the
outstanding shares of capital stock of each UNC Subsidiary have been validly
issued and are fully paid, nonassessable and are not subject to, nor were they
issued in violation of, any preemptive rights. All outstanding shares of capital
stock of UNC Subsidiaries are owned, directly or indirectly, by UNC, and, except
as disclosed in Schedule 1.84 or in the UNC Financial Statements, are owned free
and clear of all liens, charges, encumbrances, security interests, equities,
options, restrictions on voting rights or rights of disposition, and claims or
third party rights of whatever nature. Except for UNC Subsidiaries, UNC does not
own, directly or indirectly, any capital
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stock or other equity securities of any corporation, partnership, joint venture
or other entity or have any direct or indirect equity or ownership interest in
any corporation, partnership, joint venture or other entity, other than as
disclosed on Schedule 5.2 or Schedule 1.53B.
Section 5.3. Authority Relative to this Agreement. The execution, delivery
and performance of this Agreement and of all of the other documents and
instruments required hereby by UNC are within the corporate power of UNC. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of UNC and no other corporate proceedings on the part of UNC are
necessary to authorize this Agreement or to consummate the transactions
contemplated herein (other than, with respect to the Merger, the approval of the
Certificate of Merger by a majority of the outstanding shares of UNC Common
Stock and UNC Series B Preferred Stock at the UNC Stockholders Meeting). This
Agreement and all of the other documents and instruments required hereby have
been or will be duly and validly executed and delivered by UNC and (assuming the
due authorization, execution and delivery hereof and thereof by Greenwich)
constitute or will constitute valid and binding agreements of UNC, enforceable
against UNC in accordance with their respective terms, except to the extent that
enforceability may be governed by equitable principles, applicable bankruptcy
laws, and other rights affecting creditors generally.
Section 5.4. Consents and Approvals: No Violations. Except for (i) any
applicable requirements of the Securities Act, the Exchange Act, the HSR Act,
and any applicable filings under state securities, "Blue Sky" or takeover laws,
(ii) the filing and recordation of a certificate of merger as required by the
DGCL and (iii) those required filings, registrations, consents and approvals
listed in Schedule 5.4, no filing or registration with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
or required in connection with the execution and delivery of this Agreement by
UNC or for the consummation by UNC of the transactions contemplated by this
Agreement. Assuming that all filings, registrations, permits, authorizations,
consents and approvals contemplated by the immediately preceding sentence and
the other provisions of this Agreement have been duly made or obtained, neither
the execution, delivery and performance of this Agreement nor the consummation
of the transactions contemplated hereby by UNC will (i) conflict with or result
in any breach of any provision of the Certificates of Incorporation, bylaws,
partnership or joint venture agreements or other organizational documents of any
of the UNC Companies, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, or otherwise
result in any diminution of any of the rights of the UNC Companies with respect
to, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, Contract or other instrument or obligation to which any of
the UNC Companies is a party or by which it or any of them or any of their
properties or assets may be bound, or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to any of the UNC Companies or
any of their properties or assets except, in the case of subsections (ii) or
(iii) above, for violations, breaches or defaults that would not have a UNC
Material Adverse Effect and that will not prevent or delay the consummation of
the transactions contemplated hereby.
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Section 5.5. Reports and Financial Statements.
(a) The UNC SEC Reports complied, as of their respective dates of
filing, in all material respects with all applicable requirements of the
Securities Act, the Exchange Act and the rules and regulations of the SEC. As of
their respective dates, none of such forms, reports or documents, including
without limitation any financial statements or schedules included therein,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading in light of the circumstances under which they were made.
(b) Each of the balance sheets (including the related notes and
schedules) included in the UNC SEC Reports fairly presented the consolidated
financial position of the UNC Companies as of the respective dates thereof, and
the other related financial statements (including the related notes and
schedules) included therein fairly presented the results of operations and cash
flows of the UNC Companies for the respective fiscal periods or as of the
respective dates set forth therein. Each of the financial statements (including
the related notes and schedules) included in the UNC SEC Reports (i) complied as
to form with the applicable accounting requirements and rules and regulations of
the SEC, and (ii) was prepared in accordance with GAAP consistently applied
during the periods presented, except as otherwise noted therein and subject to
normal year-end and audit adjustments in the case of any unaudited interim
financial statements.
(c) Except for UNC, none of the UNC Companies is required to file
any forms, reports or other documents with the SEC, Nasdaq, the NYSE or any
other foreign or domestic securities exchange or Governmental Authority with
jurisdiction over securities laws. UNC has timely filed all reports,
registration statements and other filings required to be filed by it with the
SEC.
(d) The balance sheet as of December 31, 1996 included in the UNC
1996 Management Statements fairly presents the consolidated financial position
of the UNC Companies as of that date and the other related financial statements
included therein fairly present the results of operations and cash flows of the
UNC Companies for the year then ended. The UNC 1996 Management Statements have
been prepared in accordance with GAAP consistently applied during the period
presented.
(e) The balance sheet (including the related notes and schedules)
included in the Audited 1996 Statements will, when issued, fairly present the
consolidated financial position of the UNC Companies as of the respective dates
thereof, and the other related financial statements (including the related notes
and schedules) included therein will fairly present the results of operations
and cash flows of the UNC Companies for the respective fiscal periods or as of
the respective dates set forth therein. The Audited 1996 Statements (including
the related notes and schedules) will, when issued, (i) comply as to form with
the applicable accounting requirements and rules and regulations of the SEC,
(ii) will have been prepared in accordance with GAAP consistently applied during
the periods presented, except as otherwise noted therein,
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and (iii) will not, except as set forth in Schedule 5.5, differ materially from
the UNC 1996 Management Statements.
Section 5.6. Absence of Certain Events. Except as set forth in the UNC SEC
Reports filed before the date of this Agreement or as otherwise specifically
disclosed in Schedule 5.6, none of the UNC Companies has suffered any change in
its business, financial condition, results of operations or prospects that has
had or will have a UNC Material Adverse Effect upon the UNC Companies. Except as
disclosed in the UNC SEC Reports or in Schedule 5.6, or as otherwise
specifically contemplated by this Agreement, there has not been: (i) any entry
into any agreement or understanding or any amendment of any agreement or
understanding between any of the UNC Companies on the one hand, and any of their
respective directors, officers or employees on the other hand, providing for
employment of any such director, officer employee or any general or material
increase in the compensation, severance or termination benefits payable or to
become payable by any of the UNC Companies to any of their respective directors,
officers or employees (except, in each case, in the ordinary course of business
that are consistent with past practices and that, in the aggregate, do not
result in a material increase in benefits or compensation expense), or any
adoption of or increase in any bonus, insurance, pension or other employee
benefit plan, payment or arrangement (including, without limitation, the
granting of stock options or stock appreciation rights or the award of
restricted stock) made to, for or with any such director, officer or employee;
(ii) any labor dispute that has had or is expected to have a UNC Material
Adverse Effect; (iii) any entry by any of the UNC Companies into any material
commitment, agreement, license or transaction (including, without limitation,
any borrowing, capital expenditure, sale of assets or any mortgage, pledge, lien
or encumbrances made on any of the properties or assets of any of the UNC
Companies) other than in the ordinary and usual course of business; (iv) any
change in the accounting policies or practices of UNC; (v) any damage,
destruction or loss, whether covered by insurance or not, which has had or will
have a UNC Material Adverse Effect; or (vi) any agreement to do any of the
foregoing.
Section 5.7. UNC Proxy Statement. None of the information with respect to
the UNC Companies to be included in the UNC Proxy Statement or any amendments
thereof or supplements thereto, at the time of the mailing of the UNC Proxy
Statement or any amendments thereof or supplements thereto and at the time of
the UNC Stockholders' Meeting, will 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, in light of the circumstances
under which they are made, not misleading. The UNC Proxy Statement will comply
as to form in all material respects with the provisions of the Securities Act,
the Exchange Act and the rules and regulations promulgated thereunder, except
that no representation is made by UNC with respect to information supplied by
Greenwich or any affiliate of Greenwich for inclusion in the UNC Proxy
Statement.
Section 5.8. Litigation. There is no action, suit, proceeding or, to the
Knowledge of UNC, investigation pending or, to the Knowledge of UNC, threatened
against or relating to any of the UNC Companies at law or in equity, or before
any federal, state, provincial, municipal or other governmental department,
commission, board, bureau, agency or instrumentality,
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whether in the United States or otherwise, that is expected, in the reasonable
judgment of UNC, to have a UNC Material Adverse Effect upon the UNC Companies or
that seeks restraint, prohibition, damages or other relief in connection with
this Agreement or the consummation of the transactions contemplated hereby. To
its Knowledge, UNC has furnished to Greenwich, copies of all attorneys' audit
letters, and has furnished will upon request furnish to Greenwich such other
documents available to UNC as may be requested by Greenwich in respect of
pending litigation affecting the UNC Companies.
Section 5.9. Title to and Sufficiency of Assets.
(a) As of the date hereof the UNC Companies own, and as of the
Effective Time the UNC Companies will own, good and marketable title to all of
their assets constituting personal property which is material to any of the UNC
Subsidiaries or any UNC 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, except as disclosed in UNC Financial Statements or in Schedule 5.9.
Such assets, together with all assets held by the UNC Companies under leases,
include all tangible and intangible personal property, Contracts and rights
necessary or required for the operation of the UNC Businesses by the UNC
Companies in accordance with past practice.
(b) As of the date hereof the UNC Companies own, and as of the
Effective Time the UNC Companies will own, good and marketable title to all of
their Real Estate which is material to any of the UNC Subsidiaries or any UNC
Business (excluding, for purposes of this sentence, Real Estate leases), free
and clear of any and all mortgages, liens, encumbrances, charges, claims,
restrictions, pledges, security interests or impositions, except as disclosed in
UNC Financial Statements or in Schedule 5.9. Such Real Estate assets, together
with all Real Estate assets held by the UNC Companies under leases, are adequate
for the operation of the UNC Businesses by the UNC Companies as presently
conducted. The leases to all Real Estate occupied by UNC which is material to
the operation of the UNC 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 any of the UNC Companies or,
to the Knowledge of UNC, any other Person who is a party signatory thereto.
Section 5.10. Contracts.
(a) Before the Agreement Date UNC has provided Greenwich with access
to, and upon Greenwich's request UNC shall at all times subsequent to the
Agreement Date furnish Greenwich with true and correct copies of, all of the
Contracts to which any UNC Company is a party that constitute: (i) a lease of
any interest in any real property; (ii) a lease of any personal property with
aggregate annual rental payments in excess of $100,000; (iii) an option to
acquire or lease any interest in real property or a right of first refusal with
respect thereto; (iv) an agreement to purchase or sell a capital asset or an
interest in any business entity for a price in excess of $100,000 or a right of
first refusal with respect thereto; (v) an agreement relating to the borrowing
or lending of money or the purchase or sale of securities; (vi) a guaranty,
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contribution agreement or other agreement that includes any indemnification,
contribution or support obligation; (vii) an agreement limiting in any material
respect the ability of any UNC Company to compete in any line of business or
with any person; (viii) a customer supply or services agreement to which any of
the UNC Companies is a party or by which any of the UNC Companies is bound
pursuant to which the total amount payable (or reasonably expected to be
payable) to the UNC Companies in any calendar year exceeds $250,000 (a "Material
Customer Agreement"); (ix) an employment or consulting agreement to which any of
the UNC Companies is a party or by which any of the UNC Companies is bound; and
(x) any other agreement involving an amount over its term in excess of $250,000
(collectively, a "UNC Material Contract"). In addition to the UNC Material
Contracts, UNC shall furnish Greenwich with true and complete copies of all
other Contracts which Greenwich shall reasonably request.
(b) With respect to UNC Material Contracts, except where a breach of
the warranties contained in this Section 5.10 would not have a UNC Material
Adverse Effect: (i) the UNC Companies have performed and, to the Knowledge of
UNC, every other party has performed, each material term, covenant and condition
of each of the Material Contracts to which any UNC Company is a party that is to
be performed by any of them at or before the date hereof, (ii) all of such UNC
Material Contracts are 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 UNC or applicable UNC Subsidiary
party thereto which would entitle the other Person who is a signatory to such
UNC Material Contract to terminate the same or declare a default or event of
default thereunder; (iii) neither UNC or any UNC Subsidiary has UNC Knowledge of
that the other Person to any such Material Contract intends to terminate or
amend such UNC Material Contract in any respect, (iv) UNC or the applicable UNC
Subsidiary party to such UNC Material Contract maintain good business
relationships with the other Person to such UNC Material Contract, and (v) UNC
or the applicable UNC Subsidiary party to such UNC Material Contract has no
reason to believe that the other Person to any such UNC Material Contract does
not intend to continue to conduct business with UNC or such UNC Subsidiary upon
the expiration of the stated term of such UNC Material Contract.
Section 5.11. Labor Matters.
(a) Except as set forth in Schedule 5.11, with respect to employees
of the UNC Companies: (i) to the Knowledge of UNC, no senior executive, key
employee or group of employees has any plans to terminate employment with any of
the UNC Companies; (ii) there is no unfair labor practice charge or complaint
against any UNC Company pending or, to the Knowledge of UNC, 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, (iv) no grievance or any arbitration proceeding arising
out of or under collective bargaining agreements is pending and, to the
Knowledge of UNC, no claims therefor have been threatened; (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
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permit any labor organization to reopen negotiations in respect of wages, hours
or working conditions under any of 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 UNC, proposed or threatened against any UNC
Company relating to employment, employment practices, terms and conditions of
employment or wages and hours.
(b) Except as identified in Schedule 5.11, no UNC Company 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 no UNC Company has recognized any labor
organization as the collective bargaining representative of any of its
employees.
Section 5.12. Employee Benefit Plans.
(a) Schedule 5.12 sets forth a true and complete list of each
Employee Plan within the meaning of Section 4001 of ERISA, for the benefit of
any employee or former employee of any of the UNC Companies or any ERISA
Affiliate.. Schedule 5.12 sets forth each of the Employee Plans that is an
"employee benefit plan," as that term is defined in Section 3(3) of ERISA (the
"ERISA Plans").
(b) With respect to each Employee Plan, UNC has heretofore delivered
or will deliver to Greenwich upon request true and complete copies of each of
the following documents:
(i) a copy thereof;
(ii) a copy of the most recent annual report and actuarial
report, if required under ERISA and the most recent report prepared with respect
thereto in accordance with Statement of Financial Accounting Standards No. 87,
Employer's Accounting for Pensions;
(iii) a copy of the most recent Summary Employee Plan
Description required under ERISA with respect thereto;
(iv) if the Employee Plan is funded through a trust or any
third party funding vehicle, a copy of the trust or other funding agreement and
the latest financial statements thereof; and
(v) the most recent determination letter received from the
Internal Revenue Service with respect to each Employee Plan intended to qualify
under Section 401 of the Code.
(c) Except as set forth in Schedule 5.12, no Employee Plan (or other
employee benefit plan, program, agreement or arrangement to which UNC, any UNC
Subsidiary or any ERISA Affiliate made, or was required to make, contributions
during the five (5) year period ending on the Closing Date) is subject to Title
IV of ERISA.
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(d) Except as set forth in Schedule 5.12, neither UNC, any UNC
Subsidiary nor any ERISA Affiliate, any ERISA Plan, nor any trust created
thereunder, nor, to UNC's Knowledge, any trustee or administrator thereof has
engaged in a transaction in connection with which UNC, any UNC Subsidiary nor
any ERISA Affiliate, any ERISA Plan, any such trust, or any trustee or
administrator thereof, or any party dealing with any ERISA Plan or any such
trust could be subject to either a civil penalty assessed pursuant to Section
409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the
Code, which, in either case, if sustained would have a UNC Material Adverse
Effect.
(e) Except as set forth in Schedule 5.12, no ERISA Employee 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
ERISA Plan ended prior to the Closing Date; and all contributions required to be
made with respect thereto (whether pursuant to the terms of any ERISA Plan or
otherwise) on or prior to the Closing Date have been timely made.
(f) Except as set forth in Schedule 5.12, no ERISA Plan is a
"multiemployer pension plan," as defined in Section 3(37) of ERISA, nor is any
ERISA Plan a plan described in Section 4063(a) of ERISA.
(g) Except as set forth in Schedule 5.12, each Employee Plan has
been operated and administered in all material respects in accordance with its
terms and applicable law, including but not limited to ERISA and the Code.
(h) Except as set forth in Schedule 5.12, each ERISA Plan intended
to be "qualified" within the meaning of Section 401(a) of the Code is so
qualified and the trusts maintained thereunder are exempt from taxation under
Section 501(a) of the Code.
(i) Except as set forth in Schedule 5.12, no Employee Plan provides
benefits, including without limitation death or medical benefits (whether or not
insured), with respect to current or former employees of UNC or an ERISA
Affiliate their retirement or other termination of service (other than (i)
coverage mandated by applicable law or (ii) death benefits or retirement
benefits under any "employee pension plan," as that term is defined in Section
3(2) of ERISA).
(j) Except as set forth in Schedule 5.12, the consummation of the
transactions contemplated by this Agreement will not (i) entitle any current or
former employee or officer of UNC, any UNC Subsidiary or any ERISA Affiliate to
severance pay, unemployment compensation or any other payment, except as
expressly provided in this Agreement or (ii) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee or
officer, whether pursuant to any Employee Plan or any employment agreement with
such existing or former officer or employee of UNC, any UNC Subsidiary or any
ERISA Affiliate.
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(k) Except as set forth in Schedule 5.12, there are no pending, or
to UNC's Knowledge, threatened or anticipated claims by or on behalf of any
Employee Plan, by any employee or beneficiary covered under any such Employee
Plan, or otherwise involving any such Employee Plan (other than routine claims
for benefits).
Section 5.13. Tax Matters.
(a) Definitions. As used in this Agreement:
(i) "Tax Ruling" means a written ruling of a taxing authority
relating to Taxes.
(ii) "Closing Agreement" means a written and legally binding
agreement with a taxing authority relating to Taxes.
(b) Representations. Except for representations and warranties made
with respect to federal and state income Taxes, all representations and
warranties made in this Section 5.13(b) with respect to Taxes are made to the
best Knowledge of UNC. Subject to the foregoing, and except as set forth in
Schedule 5.13:
(i) Filing of Tax Returns. UNC and each of UNC 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. UNC and each of UNC 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 UNC
or of any of UNC Subsidiaries except for statutory liens for current Taxes not
yet due.
(iv) Withholding Taxes. UNC and each of UNC 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 UNC nor any of UNC
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 UNC nor any of
UNC 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.
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(vii) No Deficiencies. The statute of limitations for the
assessment of any federal income Taxes has expired for all income Tax Returns of
UNC and of each of UNC 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 UNC or any of UNC
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 UNC 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 UNC or any of UNC Subsidiaries.
(ix) Powers of Attorney. No power of attorney currently in
force has been granted by UNC or any of UNC Subsidiaries concerning any Taxes or
Tax Returns.
(x) Tax Rulings. Neither UNC nor any of UNC Subsidiaries has
received a Tax Ruling or entered into a Closing Agreement with any taxing
authority that would have a UNC Material Adverse Effect.
(xi) Tax Sharing Agreements. Neither UNC nor any UNC
Subsidiary is a party to any agreement relating to allocating or sharing of
Taxes which has not been disclosed on its Tax Returns.
Section 5.14. Insurance and Reinsurance. Schedule 5.14 sets forth all
insurance and reinsurance policies relating to UNC and any UNC Subsidiary. UNC
and each UNC Subsidiary has given any and all notices and made any and all
payments required to maintain such policies in full force and effect. Except as
set forth in Schedule 5.14: neither UNC nor any UNC Subsidiary has received
notice of default under any such policy, and has not received written notice or,
to the knowledge of UNC or any UNC Subsidiary, oral notice of any pending or
threatened termination or cancellation, coverage limitation or reduction or
material premium increase with respect to such policy.
Section 5.15. Officers' and Directors' Liability Insurance. UNC has
heretofore delivered to Greenwich a copy of its officers' and directors'
liability insurance policy.
Section 5.16. Compliance with Law. The conduct of the UNC Businesses of
the UNC Companies and their use of their assets does not violate or conflict,
and has not violated or conflicted, with any Law, which violation or conflict
could have a UNC Material Adverse Effect.
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Section 5.17. Environmental Matters. The conduct of the UNC Businesses of
the UNC Companies, and their ownership, use or occupancy of any properties for
which the UNC Companies have liability under Environmental Laws, does not
violate or conflict, and has not violated or conflicted, with any Environmental
Law, which violation or conflict could have a UNC Material Adverse Effect.
Section 5.18. Transactions With Affiliates. For purposes of this Section,
the term "Affiliate" means (a) any holder of 2% or more of the voting securities
of UNC, (b) any director, officer or senior executive of the UNC Companies, (c)
any person, firm or corporation that directly or indirectly controls, is
controlled by or is under common control with any of the UNC Companies or (d)
any member of the immediate family of any of such persons. Except as set forth
in Schedule 5.18 or in the UNC SEC Reports, since December 31, 1995, the UNC
Companies have not, in the ordinary course of business or otherwise, (a)
purchased, leased or otherwise acquired any material property or assets or
obtained any material services from, (b) 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 a director, officer or employee of one or more of the UNC
Companies), (c) entered into or modified in any manner any Contract with, or (d)
borrowed any money from, or made or forgiven any loan or other advance (other
than expense or similar advances made in the ordinary course of business) to,
any Affiliate.. Except as set forth in Schedule 5.18 or in the UNC SEC Reports,
(a) the Contracts of the UNC Companies do not include any material obligation or
commitment between any of the UNC Companies and any Affiliate, the assets of the
UNC Companies do not include any receivable or other obligation or commitment
from an Affiliate to any of the UNC Companies and (c) the liabilities of the UNC
Companies do not include any payable or other obligation or commitment from any
of the UNC Companies to any Affiliate.. To the Knowledge of UNC and except as
set forth in Schedule 5.18 or in the UNC SEC Reports, no Affiliate of any of the
UNC Companies is a party to any Contract with any customer or supplier of UNC
that affects in any material manner the business, financial condition or results
of operation of any of the UNC Companies.
Section 5.19. Fees and Expenses of Brokers and Others. None of the UNC
Companies (a) has had any dealings, negotiations or communications with any
broker or other intermediary in connection with the transactions contemplated by
this Agreement, (b) is committed to any liability for any brokers' or finders'
fees or any similar fees in connection with the transactions contemplated by
this Agreement or (c) has retained any broker or other intermediary to act on
its behalf in connection with the transactions contemplated by this Agreement,
except that UNC has engaged J.P. Morgan and Fieldstone Partners ("Fieldstone")
to represent it in connection with such transactions, and shall pay all of J.P.
Morgan's and Fieldstone's fees and expenses in connection with such engagement,
up to a maximum amount of fees not to exceed $4.0 million in the aggregate.
Greenwich shall have no responsibility for any of such fees or expenses.
Section 5.20. Accuracy of Information. Neither this Agreement nor any
other document provided by the UNC Companies or their employees or agents to
Greenwich in connection with
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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 5.21. Absence of Undisclosed Liabilities. None of the UNC
Companies have, as of the date hereof, or will have, as of the Effective Time,
any liabilities or obligations of any kind, whether absolute, accrued, asserted
or unassorted, contingent or otherwise, that would be required to be disclosed
on a consolidated balance sheet of UNC prepared as of such date, in accordance
with GAAP, except liabilities, obligations or contingencies that were (a)
reflected on or accrued or reserved against in the consolidated balance sheet of
UNC as of September 30, 1996, included in the UNC SEC Reports or reflected in
the notes thereto, or (b) incurred after the date of such balance sheet in the
ordinary course of business and consistent with past practices and which,
individually or in the aggregate, would not have a UNC Material Adverse Effect.
None of the UNC Companies is a party to any Contract, or subject to any charter
or other corporate or partnership restriction, or subject to any judgment,
order, writ, injunction, decree, rule or regulation, which will have a UNC
Material Adverse Effect.
Section 5.22. Opinion of Financial Advisor. UNC has received the oral
opinion of J.P.Morgan dated March 9, 1997, to the effect that the Merger
Consideration and other transactions contemplated by this Agreement are fair to
the stockholders of UNC from a financial point of view and a written opinion to
that effect will be delivered to UNC not later than March 14, 1997.
Section 5.23. DGCL Section 203. UNC has approved the Merger and the
transactions contemplated hereby so as to cause: (i) the restrictions on
business combinations with interested stockholders set forth in section 203 of
the DGCL to be inapplicable to Greenwich, Merger Sub, the Merger and the
transactions contemplated hereby and (ii) any other applicable anti-takeover
statute or other applicable statute prohibiting or restricting business
combinations to be inapplicable to Greenwich, Merger Sub, the Merger and the
transactions contemplated hereby.
ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1. Conduct of the Businesses of UNC and Greenwich.
(a) UNC Companies. Except as otherwise expressly provided in this
Agreement, during the period from the date of this Agreement to the Effective
Time, the UNC Companies will conduct their respective operations according to
their ordinary and usual course of business and consistent with past practice,
and will use their best efforts to preserve intact their business organizations,
to keep available the services of their officers and employees and to maintain
satisfactory relationships with licensers, licensees, suppliers, contractors,
distributors, customers and others having material business relationships with
them. Without limiting the generality of the foregoing, and except as otherwise
expressly provided in this
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Agreement, before the Effective Time, none of the UNC Companies will, without
the prior written consent of Greenwich:
(i) amend its Articles or Certificate of Incorporation,
bylaws, partnership or joint venture agreements or other organizational
documents;
(ii) authorize for issuance or issue, sell or deliver (whether
through the issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase or otherwise) any stock of any class or any
other securities or interests, including, without limitation, any additional
shares of UNC Common Stock or shares of UNC Preferred Stock, except as may be
required by the existing terms of the Series B Preferred Stock Agreement, any
UNC Employee Plan, or any issued and outstanding UNC Stock Options disclosed
pursuant to this Agreement;
(iii) split, combine or reclassify any shares of its capital
stock or declare, set aside or pay any dividend or other distribution (whether
in cash, stock or property or any combination thereof) in respect of its capital
stock, or redeem or otherwise acquire any of its securities or any securities of
their respective Subsidiaries and Partnerships;
(iv) (A) except in the ordinary course of business, incur or
assume any Indebtedness not currently outstanding (provided, that except for
additional advances used for general working capital purposes which are
currently permitted under existing senior secured lines of credit, UNC shall not
incur any additional Indebtedness for money borrowed), (B)except in the ordinary
course of business, assume, guarantee, endorse or otherwise become liable or
responsible for the obligations of any person, other than a Subsidiary or
Partnership, (C) make any loans, advances or capital contributions to, or
investments in, any other person (other than customary loans or advances to
employees and non-affiliated customers in accordance with past practice), (D)
except in the ordinary course of business, enter into any Material Contract, or
alter, amend, modify or exercise any option under any existing Material
Contract, (E) enter into any other Contract, or alter, amend, modify or exercise
any option under any existing Contract (other than a Material Contract), except
in the ordinary course of business or in connection with the transactions
contemplated by this Agreement, or (F) make or commit to any single capital
expenditure which is in excess of $100,000 or capital expenditures which are, in
the aggregate, in excess of $1.0 million, except for capital expenditures (x)
required to be made under Contracts entered into before the Agreement Date, and
(y) which are reflected in the 1997 UNC capital budget previously furnished to
Greenwich and (z) which are legally required to be made under such Contracts;
(v) enter into, adopt or amend (except as may be required by
Law or as provided in this Agreement) any bonus, profit sharing, compensation,
severance, termination, stock option, stock appreciation right, restricted
stock, pension, retirement, deferred compensation, employment, consulting,
severance or other employee benefit agreements, trusts, plans, funds or other
arrangements for the benefit or welfare of any director, officer or employee, or
increase in any manner the compensation or fringe benefits of any director,
officer
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or employee or pay any benefit not required by any existing plan or arrangement
(including, without limitation, the granting of stock options, stock
appreciation rights, shares of restricted stock or performance units) or enter
into any Contract to do any of the foregoing (except, in each of the above
instances, for normal increases or other payments in the ordinary course of
business that are consistent with past practices and that, in the aggregate, do
not result in a material increase in benefits or compensation expense; provided,
that UNC shall give Greenwich 72 hours notice before effecting any change in
compensation for any employee whose current annual base compensation equals or
exceeds $100,000, even if Greenwich's approval shall not be required hereunder);
(vi) except as otherwise permitted in this Section 6.1,
acquire, sell, lease or dispose of any Real Estate or other material assets,
other than inventory in the ordinary course of business;
(vii) 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;
(viii) make any material Tax election or settle or compromise
any material federal, state, local or foreign income Tax liability;
(ix) except for the payment of professional fees, pay,
discharge or satisfy any material claims, liabilities or obligations (absolute,
accrued or unassorted, contingent or otherwise), other than the payment,
discharge or satisfaction in the ordinary course of business of liabilities
reflected or reserved against in UNC's most recent quarterly or annual financial
statements or incurred in the ordinary course of business since the date
thereof; or
(x) hold any meeting of its stockholders except to the extent
required by the request of the stockholders entitled to call a meeting under
UNC's bylaws or the DGCL;
(xi) take any action that would or is reasonably likely to
result in any of the covenants and agreements set forth in this Article VI or
any of the conditions set forth in Article VII not being satisfied as of the
Closing Date; or
(xii) agree in writing or otherwise to take any of the
foregoing actions.
(b) Greenwich. Except as otherwise expressly provided in this
Agreement, during the period from the date of this Agreement to the Effective
Time Greenwich hereby agrees to conduct its operations as required pursuant to
the terms of its covenants and agreements under the GE-Greenwich Merger
Agreement.
(c) Provision of UNC Information. UNC agrees that, during the period
from the Agreement Date to the Effective Time: (i) UNC will cause its
representatives to meet, upon
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request, with representatives of Greenwich to discuss its operations and
business prospects; (ii) UNC will provide Greenwich and its representatives full
and prompt access to all financial statements, accounting work papers,
documents, agreements, and other instruments which may be reasonably requested,
and (iii) UNC will promptly advise Greenwich of the occurrence of any UNC
Material Adverse Effect with respect to the UNC Companies.
Section 6.2. No Solicitation. UNC agrees that it shall not, after the date
hereof and before the Effective Time, directly or indirectly, through any
officer, director, employee, agent or otherwise, solicit, initiate or encourage
submission of proposals or offers from any person relating to any acquisition or
purchase of all or (other than in the ordinary course of business) a substantial
portion of the assets of, or any equity interest in, any UNC Company or any
business combination involving any UNC Company or, except to the extent required
by fiduciary obligations under applicable Law as advised by counsel, participate
in any negotiations regarding, or furnish to any other person any information
with respect to, or otherwise cooperate in any way with, or assist or
participate in, facilitate or encourage, any effort or attempt by any other
person to do or seek any of the foregoing. UNC shall promptly advise Greenwich
if any such proposal or offer, or any inquiry or contact with any person with
respect thereto, is made, shall promptly inform Greenwich of all the terms and
conditions thereof, and shall furnish to Greenwich copies of any such written
proposal or offer and the contents of any communications in response thereto.
UNC shall not waive any provisions of any "standstill" agreements between UNC
and any party, except to the extent that such waiver is, as advised by counsel,
required by fiduciary obligations under applicable Law.
Section 6.3. The UNC Proxy Statement.
(a) UNC shall, as soon as practicable following the execution of
this Agreement, file with the SEC a draft of the UNC Proxy Statement (in a form
mutually acceptable to UNC and Greenwich) as preliminary proxy materials under
the Exchange Act, and shall seek confidential treatment with respect thereto,
and Greenwich shall cooperate with UNC in preparing such proxy materials. UNC
shall respond promptly to any comments made by the SEC with respect thereto, and
Greenwich shall cooperate with UNC in preparing such responses.
(b) Upon resolution of any SEC comments with respect to the draft
UNC Proxy Statement, or at such other time as may be mutually determined by the
parties hereto, Greenwich and UNC shall each use their respective best efforts
to cause the UNC Proxy Statement to be approved by the SEC under the Exchange
Act as soon as practicable, and UNC shall cause the UNC Proxy Statement to be
mailed to its stockholders at the earliest practicable time after approval of
the same by the SEC; provided, however, that UNC will not file any amendment or
supplement to the UNC Proxy Statement without first furnishing to Greenwich a
copy thereof for review and will not file any such proposed amendment or
supplement to which Greenwich shall reasonably and promptly object.
(c) If, at any time when the UNC Proxy Statement is required to be
delivered to the stockholders of UNC under the Exchange Act, any event occurs as
a result of which either
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the UNC Proxy Statement as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading, or if it shall be necessary to amend the UNC
Proxy Statement or to supplement such Proxy Statement in order to comply with
the Exchange Act or the rules thereunder, UNC shall prepare and file with the
SEC an amendment or supplement that will correct such statement or omission or
effect such compliance, and Greenwich shall cooperate with UNC in preparing such
amendment or supplement.
Section 6.4. Access to Information: Confidentiality Agreements.
(a) Between the date of this Agreement and the Effective Time, the
parties hereto will give one another and their authorized representatives
reasonable access during normal business hours to all plants, offices, and other
facilities and to all books and records of one another, will permit one another
to make such inspections as each may reasonably request and will cause their
officers and those of their Subsidiaries and Partnerships to furnish such
financial and operating data and other information with respect to their
businesses and properties as may from time to time reasonably be requested.
Subject to Section 6.7, all such information shall be kept confidential in
accordance with the Confidentiality Agreement.
(b) Notwithstanding the execution of this Agreement, the
Confidentiality Agreement shall remain in full force and effect through the
Effective Time, at which time the Confidentiality Agreement shall terminate and
be of no further force and effect. Each party hereto hereby waives the
provisions of the Confidentiality Agreement as and to the extent necessary to
permit the solicitation of votes of the stockholders of Greenwich and UNC
pursuant to the UNC Proxy Statement and to permit consummation of the
transactions contemplated hereby. Each party further acknowledges that the
Confidentiality Agreement shall survive any termination of this Agreement
pursuant to Section 11.1.
(c) Notwithstanding anything to the contrary contained in this
Section 6.4 or in the Confidentiality Agreement, each of UNC and Greenwich
hereby agrees to furnish to GE and its designated representatives all data,
financial statements, projections, contracts, agreements, instruments, writings
and other materials concerning the UNC Businesses and the Greenwich Businesses,
and to permit representatives of GE full and complete access to the personnel
and facilities of each of the UNC Businesses and Greenwich Businesses, to enable
GE to verify the accuracy of the representations and warranties of UNC contained
in this Agreement and of Greenwich contained in the GE-Greenwich Merger
Agreement, subject to the respective provisions of the Confidentiality Agreement
and the confidentiality agreement dated March 4, 1997 between Greenwich and GE.
Section 6.5. Best Efforts. Subject to the terms and conditions herein
provided and subject to fiduciary obligations under applicable Law as advised by
counsel, each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper and advisable under applicable Law, to consummate and
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make effective the transactions contemplated by this Agreement and the
GE-Greenwich Merger Agreement. In case at any time after the Effective Time any
further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers directors of each party to this Agreement shall
take all such necessary action. Greenwich and UNC shall execute any additional
instruments necessary to consummate the transactions contemplated hereby.
Section 6.6. Consents. UNC and Greenwich shall each use its best efforts
to obtain consents of all third parties and governmental authorities necessary
to the consummation of the transactions contemplated by this Agreement and the
GE-Greenwich Merger Agreement.
Section 6.7. Public Announcements. The parties hereto have agreed upon the
text of a joint press release announcing, among other things, the execution of
this Agreement, which joint press release shall be disseminated promptly
following the execution hereof UNC and Greenwich will consult with each other
and with GE before issuing any additional press release or otherwise making any
additional public statement with respect to this Agreement, the Certificate of
Merger, the Merger, the GE-Greenwich Merger Agreement, the GE/Greenwich Merger
or the transactions contemplated herein or therein and shall not issue any such
press release or make any such public statement before such consultation or as
to which the other party or GE promptly and reasonably objects, except as may be
required by Law in the written opinion of such party's or GE's counsel or by
obligations pursuant to any listing agreement with any national securities
exchange or inter-dealer quotation system, in which case the party proposing to
issue such press release or make such public announcement shall use its best
efforts to consult in good faith with the other party before issuing any such
press release or making any such public announcements.
Section 6.8. [Intentionally omitted]
Section 6.9. Indemnification: Insurance.
(a) Except as may be limited by applicable Law, from the Effective
Time and for a period of seven (7) years thereafter, Greenwich shall cause the
Surviving Corporation to maintain all rights of indemnification existing in
favor of the directors and officers of UNC on terms no less favorable than those
provided in the certificate of incorporation and bylaws of UNC on the date of
this Agreement with respect to matters occurring before the Effective Time.
(b) Greenwich shall cause to be maintained in effect for three (3)
years from the Effective Time the current policies for directors' and officers'
liability insurance maintained by UNC (provided that Greenwich may substitute
therefor policies of at least the same coverage containing terms and conditions
that are not materially less advantageous) with respect to matters occurring
before the Effective Time, to the extent such insurance is available to
Greenwich in the market.
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(c) Greenwich hereby agrees to guarantee the performance by Merger
Sub of its obligations under this Section 6.9.
Section 6.10. Board of Directors Approval. UNC agrees that the UNC Board
of Directors will recommend that its stockholders adopt this Agreement and
approve the Merger unless advised in writing by its counsel that such
recommendation will constitute a violation of its fiduciary duties to its
stockholders.
Section 6.11. UNC Stock Options. UNC agrees not to grant any further Stock
Options following the Agreement Date through and including the Effective Time of
the Merger.
Section 6.12. Best Efforts, etc. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use its best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement
and, including obtaining any consents, authorizations, exemptions and approvals
from, and making all filings with, any insurance department, governmental,
regulatory or public body or authority which are necessary or, in the judgment
of the parties, desirable in connection with the transactions contemplated by
this Agreement.
Section 6.13. HSR Act. UNC and Greenwich shall, as soon as practicable,
file Notification and Report Forms under the HSR Act with the Federal Trade
Commission (the "FTC") and the Antitrust Division of the Department of Justice
(the "Antitrust Division") and shall use best efforts to respond as promptly as
practicable to all inquiries received from the FTC or the Antitrust Division for
additional information or documentation.
Section 6.14. Interim Financials. Prior to the Effective Time, UNC will
deliver to Greenwich as soon as available but in no event later than 30 days
after the end of any fiscal quarter, a consolidated statement of financial
position of UNC and its Subsidiaries as at the last day of such fiscal quarter
and the consolidated statements of income and changes in financial position of
such party and its Subsidiaries for the fiscal period then ended (which
statements may be unaudited) prepared in conformity with the requirements of
Form 10-Q under the Exchange Act.
Section 6.15. Material Events. At all times prior to the Effective Time,
each party shall promptly notify the others in writing of the occurrence of any
event which will or may result in the failure to satisfy any of the conditions
specified in Articles VII, VIII or IX hereof.
Section 6.16. Rights Agreement. The UNC Board of Directors will take all
necessary action (including, but not limited to redemption) so that, as of the
Effective Time, (i) the Rights Agreement dated as of September 25, 1987, between
UNC and Manufacturers Hanover Trust Company, as amended on May 16, 1996, in
respect of the potential issuance of Series A Preferred Stock (the "Rights
Agreement") will be terminated and none of Greenwich, GE, or any of their
respective Affiliates will be deemed to be an "Acquiring Person" or an "Adverse
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Person" (as such terms are defined in the Rights Agreement) for purposes
thereof, and (ii) a "Distribution Date" (as such term is defined in the Rights
Agreement) shall not occur by virtue of the Merger or the GE-Greenwich Merger
Agreement. UNC will take any and all action reasonably requested by Greenwich to
ensure and confirm that UNC, Greenwich, and their respective Affiliates will not
have any obligations in connection with the Rights or the Rights Agreement in
connection with the Merger.
Section 6.17. Reversion to Prior Agreement. If the Greenwich-GE Merger
shall have been terminated for any reason (i) Greenwich shall promptly notify
UNC of such termination, and (ii) this Agreement shall be automatically deemed,
without any action by any party hereto, to be further amended, restated and
modified, so that all of the terms and conditions set forth in the Prior
Agreement shall, for all purposes, be deemed to be the terms and conditions of
this Agreement; provided, however, that the term "Outside Effective Time" shall
be amended to mean the date that is 120 days from the date of the notice
delivered by Greenwich to UNC pursuant to this Section 6.17; and provided
further that (A) the term "UNC Common Stock Equivalents" shall be deemed to
include any shares of UNC Common Stock issuable upon conversion of the 7-1/2%
UNC Convertible Debentures and (B) the provisions of Section 2.1(g) herein shall
be deemed to be incorporated by reference in the Prior Agreement. Each of
Greenwich and UNC shall thereafter take all actions necessary, including,
without limitation, the execution and delivery of applicable agreements, to
implement the intent of this Section 6.17.
Section 6.18. Amendment of GE-Greenwich Merger Agreement. Without the
prior written consent of UNC, Greenwich shall not consent to any amendment of,
or otherwise waive the benefit of, Sections $.01, 6.06, or 8.01(b) of the
GE-Greenwich Merger Agreement, agree to terminate the GE-Greenwich Merger
Agreement (pursuant to Section 8.01 of the GE-Greenwich Merger Agreement or
otherwise), or otherwise modify or amend the GE-Greenwich Merger Agreement in
any respect that could materially impair or adversely affect the rights or
benefits inuring (directly or indirectly) thereunder to any of the UNC Companies
or their officers, or stockholders. Greenwich further agrees to cooperate and
consult with UNC with respect to, and otherwise keep UNC informed of
developments relating to, satisfaction of the conditions to consummation of the
GE/Greenwich Merger.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF ALL PARTIES
The respective obligation of each party to consummate the Merger is
subject to the satisfaction at or before the Effective Time of the following
conditions precedent:
Section 7.1. Greenwich Stockholder Approval. The transactions contemplated
by the GE-Greenwich Merger Agreement shall have been approved by the affirmative
vote of the holders of Greenwich Class A Stock at a special stockholders'
meeting of Greenwich by the requisite vote in accordance with the DGCL;
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Section 7.2. UNC Stockholder Approval. The transactions contemplated by
this Agreement shall have been approved, and this Agreement shall have been
adopted, by the affirmative vote of the holders of a majority of the outstanding
shares of UNC Common Stock at the UNC Stockholders' Meeting;
Section 7.3. Absence of Order. No order, decree or injunction shall have
been enacted, entered, promulgated or enforced by any United States court of
competent jurisdiction or any United States governmental authority which
prohibits the consummation of the Merger or the GE/Greenwich Merger; provided,
however, that the parties hereto shall use their best efforts to have any such
order, decree or injunction vacated or reversed;
Section 7.4. Certain Approvals. Any waiting period applicable to the
Merger and the GE/Greenwich Merger under the HSR Act shall have terminated or
expired, all applicable requirements of the Exchange Act shall have been
satisfied and any applicable filings under state securities, "Blue Sky" or
takeover laws shall have been made;
Section 7.5. Other Consents and Approvals. All other necessary and
material governmental, regulatory, stockholder and third party lender, customer
or other clearances, consents, licenses or approvals shall have been received.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF GREENWICH AND MERGER SUB
Each and every obligation of Greenwich and Merger Sub under this Agreement
shall be subject to the satisfaction, on or before the Closing Date, of each of
the following conditions, each of which may be waived by Greenwich and Merger
Sub as provided herein except as otherwise provided by law.
Section 8.1. Representations and Warranties True. The representations and
warranties of UNC contained in this Agreement shall be true and correct in all
material respects as of the Agreement Date and shall be deemed to have been made
again at and as of the Closing Date and shall then be true and correct in all
material respects, and at the Closing UNC shall have delivered to Greenwich a
certificate to that effect signed by the Chief Executive Officer and the
principal financial officer of UNC.
Section 8.2. UNC's Performance. Each of the obligations of UNC to be
performed by it on or before the Closing Date pursuant to the terms of this
Agreement shall have been duly performed in all material respects by the Closing
Date, including all covenants and agreements of UNC set forth in Article V and
Article VI hereof, and at the Closing UNC shall have delivered to Greenwich a
certificate to that effect signed by the Chief Executive Officer and the
principal financial officer of UNC.
Section 8.3. Resignation. As at the Effective Time, Dan A. Colussy shall
tender his resignation as Chairman and Chief Executive Officer of UNC. Such
resignation, however, shall
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not in any way limit or affect Dan A. Colussy's right to receive his allocable
payments contemplated by Section 9.4 and Section 2.2(e).
Section 8.4. Certificates. UNC shall have furnished Greenwich with such
certificates of its officers and others to evidence compliance with the
conditions set forth in this Article as may be reasonably requested by
Greenwich.
Section 8.5. SERP Termination. Subject to the satisfaction of Section 9.3,
on or before the Closing Date UNC shall have terminated, effective as of the
Agreement Date, any further obligations it has or may have had in connection
with any supplemental executive retirement plans, other than obligations that
have vested as of the Agreement Date.
Section 8.6. Consummation of the GE/Greenwich Merger. All conditions to
the consummation of the GE/Greenwich shall have been satisfied or waived.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF UNC
Each and every obligation of UNC under this Agreement shall be subject to
the satisfaction, on or before the Closing Date, of each of the following
conditions, each of which may be waived by UNC as provided herein except as
otherwise provided by law:
Section 9.1. Representations and Warranties True. The representations and
warranties of Greenwich and Merger Sub contained in this Agreement shall be true
and correct in all material respects as of the Agreement Date and shall be
deemed to have been made again at and as of the Closing Date and shall then be
true and correct in all material respects, and at the Closing, Greenwich and
Merger Sub shall have each delivered to UNC a certificate to that effect signed
by the Chief Executive Officer the principal financial officer of Greenwich.
Section 9.2. Greenwich's and Merger Sub's Performance. Each of the
obligations of Greenwich and Merger Sub to be performed by them on or before the
Closing Date pursuant to the terms hereof shall have been duly performed and
complied with in all material respects by the Closing Date and at the Closing,
Greenwich and Merger Sub shall have each delivered to UNC a certificate to that
effect signed by the Chief Executive Officer and principal financial officer of
Greenwich.
Section 9.3. Certificates. Greenwich shall have furnished UNC with such
certificates of their respective officers and others to evidence compliance with
the conditions set forth in this Article IX as may be reasonably requested by
UNC.
Section 9.4. Modification and Assumption of SERP/CIC Payments. On or
before the Closing Date, Greenwich shall have paid the amounts necessary to fund
supplemental executive retirement plan and change-in-control payment obligations
of the UNC Companies as of the
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Closing Date. Notwithstanding the foregoing, promptly after the date of this
Agreement but before the mailing of the UNC Proxy Statement, UNC and Greenwich
shall consult with GE and UNC and Greenwich shall use their best efforts to
obtain the consent of the employees who are parties thereto to amend and
restructure the existing compensation arrangements applicable to such employees
so that, to the extent possible, no "parachute payments" (within the meaning of
Section 280G(b)(2) of the Code) are made and no remuneration for which a
deduction would be disallowed by reason of the application of Section 162(m) of
the Code is paid to such employees and that each such employee is afforded
alternative compensation arrangements of substantially equivalent value;
provided, however, that obtaining such consent shall not be a condition to the
obligations of Greenwich, Merger Sub, or UNC under this Agreement.
ARTICLE X
CLOSING
Section 10.1. Time and Place. A closing ("Closing") shall take place to
confirm the satisfaction or waiver of the conditions to Closing contained in
Articles VII, VIII and IX at the offices of Greenberg, Traurig, Hoffman, Lipoff,
Rosen & Quentel, PA, 153 East 53rd Street, New York, New York, at 1:00 P.M.,
local time, or at such other place, at such other time, or on such other date as
the Greenwich and UNC may mutually agree upon for the Closing to take place.
ARTICLE XI
TERMINATION; AMENDMENT; WAIVER
Section 11.1. Termination. Notwithstanding adoption of this Agreement by
stockholders of UNC and Greenwich, this Agreement may be terminated, and the
Merger abandoned, at any time prior to the Effective Time of the Merger:
(a) by the mutual consent of the Boards of Directors of Greenwich
and UNC; or
(b) by either Greenwich or UNC if the Merger shall not have been
consummated on or before September 30, 1997 (the "Outside Effective Time");
provided, however, that the right to terminate this Agreement under this Section
11.1(b) shall not be available to any party whose act or omission (which act or
omission was solely within such party's control), shall have resulted in the
Outside Effective Time's having passed without the Merger having been
consummated; and provided further that Greenwich shall be deemed to have agreed
to extend the Outside Effective Time as and to the extent that the outside date
for consummation of the GE/Greenwich Merger may from time to time be extended;
or
(c) by either Greenwich or UNC, if any court of competent
jurisdiction in the United States or other United States governmental body shall
have issued an order, judgment or
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decree (other than a temporary restraining order) restraining, enjoining or
otherwise prohibiting the Merger and such order, judgment or decree shall have
become final and nonappealable; or
(d) by Greenwich, if any of the following events have occurred:
(i) the Merger contemplated by this Agreement is voted upon by
holders of UNC Common Stock at the UNC Stockholders' Meeting, and the votes are
not sufficient to satisfy the condition set forth in Section 7.2; or
(ii) the UNC Board does not recommend in the UNC Proxy
Statement that UNC's stockholders adopt and approve the Merger, this Agreement
and the transactions contemplated hereby and thereby; or
(iii) after recommending in the UNC Proxy Statement that UNC's
stockholders adopt and approve the Merger, this Agreement and the transactions
contemplated hereby, the UNC Board withdraws, modifies or amends such
recommendation in any respect materially adverse to Greenwich; or
(iv) if there shall occur a breach by UNC of any
representation or warranty set forth in this Agreement, which breach has a UNC
Material Adverse Effect and is within the actual knowledge of any Person listed
in Schedule 1.46, or UNC shall breach any covenant or agreement contained in
this Agreement which makes consummation of the transaction contemplated hereby
either impossible or impracticable for Greenwich.
(e) by UNC if, before the Effective Time, a Person or group makes a
bona fide proposal with respect to the acquisition of all or substantially all
of UNC's outstanding capital stock or assets, that the Board of Directors of UNC
believes in good faith after consultation with its financial advisors, is more
favorable, from a financial point of view, to the stockholders of UNC than the
proposal set forth in this Agreement (a "Superior Proposal"); provided that
Greenwich does not (in its sole option) elect to make, within ten Business Days
after receiving notice of such Superior Proposal, an offer that the Board of
Directors of UNC believes, in good faith after consultation with its financial
advisors, is at least as favorable, from a financial point of view, to the UNC
stockholders as such Superior Proposal; or
(f) by Greenwich, if there shall have occurred and shall be
continuing a UNC Material Adverse Effect.
Section 11.2. Effect of Termination. In the event of the termination of
this Agreement and the Merger by either Greenwich or UNC, this Agreement shall
become void and there shall be no liability hereunder on the part of Greenwich
or UNC or their respective officers or directors except, in each case, as
otherwise provided in Sections 11.3 and 12.1 hereof, which Sections shall
survive any such termination and continue in effect thereafter.
Section 11.3. Termination Payments and Expenses.
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(a) If this Agreement is terminated:
(i) by Greenwich, pursuant to clauses (ii), (iii) or (iv) of
Section 11.1(d); or
(ii) by UNC, pursuant to Section 11.1(e);
then UNC shall promptly pay to Greenwich the sum of $20 million.
(b) Each party hereto acknowledges that the agreements contained in
this Section 11.3 are an integral part of the transactions contemplated by this
Agreement and that, without these agreements, none of the parties hereto would
enter into this Agreement. Accordingly, if any party hereto fails to pay any
amounts pursuant to this Section 11.3, and, in order to obtain such payment,
legal action is commenced which results in a judgment therefor, the liable party
will pay the plaintiff's reasonable costs (including reasonable attorneys' fees)
in connection with such suit, together with interest computed on any amounts
determined pursuant to this Section 11.3 (computed from the date when such
amounts were due and payable pursuant to this Section 11.3) and such costs
(computed from the date or dates incurred) at the prime rate of interest
announced from time to time by Citibank, N.A. The parties' obligations pursuant
to this Section 11.3 will survive any termination of this Agreement.
(c) In the event that Greenwich shall terminate this Agreement by
reason of any of the events specified in Section 11.1, none of the Greenwich
Companies nor their Affiliates under this Agreement, or otherwise.
(d) The remedies of Greenwich set forth in this Section 11.3
constitute full and complete liquidated damages and represent the sole and
exclusive remedies at law of such party as a result of the termination of this
Agreement pursuant to Section 11.3.
(e) Nothing herein contained shall prevent a party otherwise
entitled to seek specific performance of this Agreement from applying to and
obtaining from a court of competent jurisdiction such equitable relief as such
court may deem proper in the circumstances.
(f) Except as provided in this Section 11.3, all costs and expenses
incurred in connection with this Agreement shall be paid in accordance with
Section 12.1
ARTICLE XII
MISCELLANEOUS
Section 12.1. Expenses. Except as provided in Section 11.3, all costs and
expenses incurred in connection with this Agreement, and the transactions
contemplated hereby and thereby shall be paid by the party incurring such
expenses.
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Section 12.2. No Survival of Representations and Warranties. The
respective representations and warranties, obligations, covenants and agreements
of UNC, Greenwich and Merger Sub contained herein or in any Exhibit or Schedule,
certificate or letter delivered pursuant hereto shall expire with, and be
terminated and extinguished by, the effectiveness of the Merger.
Section 12.3. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and do not
constitute.a part of this Agreement.
Section 12.4. Notices. All notices or other communications required
hereunder shall be in writing and shall be deemed given on the date delivered if
delivered personally (including by reputable overnight courier), on the date
transmitted if sent by telecopy (which is confirmed) or 72 hours after mailing
if mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Greenwich, to:
Greenwich Air Services, Inc.
4590 NW 36th Street
Miami International Airport, Building 23
Miami, Florida 33122
Attention: Eugene P. Conese, Sr.,
Chairman and Chief Executive Officer
Telecopy: (305) 526-7005
with a copy to: Greenberg Traurig Hoffman Rosen Lipoff & Quentel
153 East 53rd Street
New York, New York 10022
Attention: Stephen A. Weiss, Esq.
Telecopy: (212) 223-7161
(b) if to UNC, to:
UNC Incorporated
175 Admiral Cochrane Drive
Annapolis, Maryland 21401
Attention: Dan A. Colussy, Chairman and Chief Executive
Officer
Telecopy: (41) 224-0439
with a copy to: Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.
One South Street
Baltimore, Maryland 21202
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<PAGE>
Attention: Michael L. Quinn, Esq.
Telecopy: (41) 332-8594
Section 12.5. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor an
of the rights, interests, or obligations hereunder, shall be assigned by any of
the parties hereto without the prior written consent of the other parties,
except that Greenwich may assign all of its rights, interests and obligations
hereunder to GE or to any wholly owned subsidiary of GE, provided that such GE
or such GE Subsidiary agrees in writing to be bound by all of the terms,
conditions and provisions contained herein. Such assignment may be effected by
merging UNC with and into GE or such GE Subsidiary simultaneously with or
subsequent to the Effective Time.
Section 12.6. Complete Agreement. This Agreement, including the schedules,
exhibits and other writings referred to herein or delivered pursuant hereto, and
the Confidentiality Agreement together contain the entire understanding of the
parties with respect to the Merger and the related transactions and supersede
all prior arrangements or understandings with respect thereto.
Section 12.7. Modifications, Amendments and Waivers. At any time prior to
the Effective Time of the Merger (notwithstanding any stockholder approval), if
authorized by their respective Boards of Directors and to the extent permitted
by law, (i) the parties hereto may, by written agreement, modify, amend or
supplement any term or provision of this Agreement and (ii) any term or
provision of this Agreement may be waived by the party which is, or whose
stockholders are, entitled to the benefits thereof; provided, however, that
after this Agreement is adopted by holders of UNC Common Stock, no such
amendment or modification shall be made which would reduce the amount or change
the type of consideration into which UNC Common Stock is to be converted as
provided in this Agreement or which in any way materially adversely affects the
rights of such stockholders, without the further approval of such stockholders.
Any written instrument or agreement referred to in this paragraph shall be
validly and sufficiently authorized for the purposes of this Agreement if signed
on behalf of Greenwich and UNC by a person authorized to sign this Agreement.
Section 12.8. Counterparts. This Agreement may be executed in two or more
counterparts all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
Section 12.9. Governing Law. This Agreement shall be governed by the laws
of the State of Delaware (regardless of the laws that might be applicable under
principles of conflicts of law) as to all matters, including but not limited to
matters of validity, construction, effect and performance.
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Section 12.10. 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 GAAP.
Section 12.11. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 12.12. Schedules to Prior Agreement. The Schedules to the Prior
Agreement shall constitute and be deemed the Schedules to this Agreement.
IN WITNESS WHEREOF, Greenwich, and UNC have caused this Agreement to be
signed by their respective officers hereunto duly authorized, all as of the date
first written above.
GREENWICH AIR SERVICES, INC.
By: /s/ Eugene P. Conese
-----------------------------------------
Name: Eugene P. Conese, Sr.
Title: Chairman and Chief Executive
Officer
ATTEST:
CONDOR ACQUISITION CORP.
By: /s/ Eugene P. Conese
-----------------------------------------
Name: Eugene P. Conese, Sr.
Title: Chairman and Chief Executive
Officer
ATTEST:
UNC INCORPORATED
By: /s/ Dan A. Colussy
-----------------------------------------
Name: Dan A. Colussy
Title: Chairman and Chief Executive
Officer
ATTEST:
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SCHEDULE 5.5
The Audited 1996 Statements reflect the following items not included in the UNC
1996 Management Statements:
(a) $15 million receivable from CFC, the seller of the Garrett assets
(b) $5 million payable to AlliedSignal Engines
(c) $5 million writeoff of the Garrett computer system
(d) $5 net reduction in goodwill
(e) typical and customary year-end adjustments to deferred taxes
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GE TO ACQUIRE GREENWICH AIR SERVICES AND UNC INCORPORATED
FAIRFIELD, Conn. (March 10,1997) -- General Electric Company and Greenwich
Air Services, Inc. have signed a definitive agreement whereby GE will acquire
Greenwich Air.
Under the terms of the agreement, GE also obtains the rights to complete
Greenwich's acquisition of UNC Incorporated, also an aircraft engine services
company, which announced in February plans to merge with Greenwich.
The transactions have been approved by the boards of GE, Greenwich, and
UNC. The GE/Greenwich transaction is subject to approval by Greenwich's
shareholders. The Greenwich/UNC transaction is subject to approval by the
shareholders of UNC. Both transactions are subject to regulatory review.
Eugene P. Conese, Sr., chairman and chief executive officer of Greenwich
and its controlling share owner, has agreed to sell his shares of Greenwich to
GE and has agreed to vote in favor of the transaction.
The GE/Greenwich agreement calls for GE to acquire Greenwich through a
combination of GE stock and cash valued at $530 million or $31 per share of
Greenwich stock. The acquisition of UNC by Greenwich will involve a cash
transaction valued at an additional $345 million or $15 per share of UNC stock.
As part of the transaction, GE will assume the debt of both acquired companies.
"The acquisition of Greenwich/UNC will enable GE Engine Services to provide
even greater customer value by broadening our capabilities and products," said
Bill Vareschi, president and chief executive officer of GE Engine Services.
"This acquisition is an excellent, complementary match between Greenwich's and
UNC's capabilities and GE's current services and products. It will bring GE a
broader range of customers and will give GE a presence in the growing business
jet aviation services sector."
Gene Conese, Sr., chairman and chief executive officer of Greenwich said:
"The merger of Greenwich Air into GE will result in the most efficient aircraft
engine services company in the world and should be of great benefit to
Greenwich's customers. The merger will also present a great opportunity for all
of Greenwich's employees for greater advancement and financial security. At the
same time it will afford Greenwich's shareholders substantial value and the
opportunity to receive GE stock on a tax-free basis, with the attendant ability
to participate in the future value of GE stock, including the results of this
merger. As announced in our February 14, 1997 press release with regard to the
UNC merger, the combined annual revenues of Greenwich Air and UNC would be
nearly $1.8 billion."
Dan A. Colussy, chairman, chief executive officer, and president and UNC,
said: "The acquisition of UNC by GE provides an excellent opportunity for UNC
shareholders, customers, and employees. This link up into the global, high
technology capabilities of GE
<PAGE>
Engine Services will enhance service to our corporate, regional airline, and
military customers, permitting a broader range of services with improved
efficiencies."
GE Engine Services, a wholly owned subsidiary of General Electric Company
based in Evendale, Ohio, is a provider of overhaul and repair of aircraft
engines, components, and accessories, with facilities in the United States,
Wales, Brazil, and Singapore. With approximately 6,200 employees worldwide, GE
Engine Services in 1996 had revenues of approximately $2.3 billion.
Greenwich, based in Miami, Florida, is a diversified, independent jet
engine maintenance and overhaul company with nine locations, principally in the
United States and Scotland. Greenwich services primarily large commercial
aircraft engines, as well as marine and industrial aeroderivative engines
produced by the world's leading manufacturers. Greenwich has approximately 3,000
employees. In 1996, Greenwich purchased portions of Aviall, Inc., a jet engine
overhaul operation.
UNC, based in Annapolis, Maryland, is a diversified, independent supplier
of jet engine maintenance and overhaul with a major focus on smaller jet engines
for corporate and military aircraft. UNC's Garrett Aviation Services division,
acquired in 1996, provides engine, airframe, and avionics services for business
jets and turboprop aircraft. UNC operates primarily at 20 U.S. locations and on
100 military bases in the U.S. and abroad. UNC employs approximately 7,000
people.
The Greenwich/UNC Merger Agreement provides that, if the GE/Greenwich
merger is not consummated, the Greenwich/UNC Merger announced on February 14,
1996, will proceed on the same terms and conditions as previously announced.
CONTACT:
GE: Rick Kennedy, office: 513-243-5805, home 513-542-1956
GREENWICH:
