EXHIBIT 6
AMENDED AND RESTATED SEPARATION AGREEMENT
THIS AMENDED AND RESTATED SEPARATION AGREEMENT
(this "Agreement") is made and entered into as of April
29, 1996, and amended and restated as of November 5,
1996, by and among Textron Inc., a Delaware corporation
("TI"), The ▇▇▇▇ ▇▇▇▇▇▇ Corporation, a Massachusetts
corporation (the "Company"), and Provident Companies,
Inc., a Delaware corporation ("Parent").
TI is the holder of approximately 83% of the
outstanding voting common stock of the Company.
Simultaneously with the execution of this Agreement,
Parent, the Company and Patriot Acquisition Corporation,
a Massachusetts corporation and a wholly owned subsidiary
of Parent ("Newco"), are entering into an Amended and
Restated Agreement and Plan of Merger (as the same may be
further amended from time to time, the "Merger
Agreement") providing for the merger (the "Merger") of
Newco with and into the Company pursuant to the terms and
conditions of the Merger Agreement.
This Agreement is being entered into in
connection with, and in consideration of, the
transactions contemplated by the Merger Agreement.
Capitalized terms used but not defined herein shall have
the respective meanings ascribed thereto in the Merger
Agreement.
NOW, THEREFORE, in consideration of the
foregoing, and the covenants and agreements contained
herein, and other consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. Representations and Warranties of TI. TI
hereby represents and warrants to Parent as follows:
(a) TI has the requisite corporate power
and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to comply with the
provisions hereof. The execution and delivery of this
Agreement, the performance of TI's obligations hereunder
and the compliance by TI with the provisions hereof have
been duly authorized by all necessary corporate action on
the part of TI. This Agreement has been duly executed
and delivered by TI and, assuming this Agreement
constitutes the valid and binding agreement of the other
parties hereto, constitutes the valid and binding
agreement of TI, enforceable in accordance with its
terms, except that the enforcement of this Agreement may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in
effect relating to creditor's rights generally and (ii)
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or
at law).
(b) The execution and delivery of this
Agreement, the performance by TI of its obligations
hereunder and the compliance by TI with any of the
provisions hereof will not (i) conflict with or result in
a breach of any provision of its Certificate of
Incorporation or By-Laws or a violation of or default (or
give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or
provisions of any material note, bond, debenture,
mortgage, indenture, license, material agreement or other
material instrument or obligation to which TI is bound,
or (ii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to TI or any of
its properties or assets. No consent or approval by any
governmental authority is required of TI in connection
with the execution and delivery by TI of this Agreement,
the performance by TI of its obligations hereunder, or
the compliance by TI with any of the provisions hereof or
thereof.
(c) TI is not a "foreign person" within
the meaning of Section 1445 of the Code.
2. Representations and Warranties of Parent.
Parent hereby represents and warrants to TI as follows:
(a) Parent has the requisite corporate
power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to
comply with the provisions hereof. The execution and
delivery of this Agreement, the performance of Parent's
obligations hereunder and the compliance by Parent with
the provisions hereof and thereof 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 this Agreement
constitutes the valid and binding agreement of the other
parties hereto, constitutes the valid and binding
agreement of Parent enforceable in accordance with its
terms, except that the enforcement of this Agreement may
be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or
at law).
(b) The execution and delivery of this
Agreement, the performance by Parent of its obligations
hereunder and the compliance by Parent with any of the
provisions hereof or thereof will not (i) conflict with
or result in a breach of any provision of its Certificate
of Incorporation or By-Laws or a violation of or default
(or give rise to any right of termination, cancellation
or acceleration) under any of the terms, conditions or
provisions of any material note, bond, debenture,
mortgage, indenture, license, material agreement or other
material instrument or obligation to which parent is
bound or (ii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Parent
or any of its properties or assets. No consent or
approval by any governmental authority is required of
Parent in connection with the execution and delivery by
Parent of this Agreement, the performance by Parent of
its obligations hereunder or the compliance by Parent
with any of the provisions hereof or thereof.
(c) Parent is not a "foreign person"
within the meaning of Section 1445 of the Code.
3. Settlement of Intercompany Accounts;
Cancellation of Intercompany Agreements. Except as
otherwise expressly provided in this Agreement or the
Merger Agreement, TI and the Company shall cause all
intercompany accounts, including all accounts receivable
(whether or not currently due and payable), between TI
and its affiliates (other than the Company and the
Company Subsidiaries) on the one hand, and the Company
and the Company Subsidiaries on the other hand, to be
settled in full prior to the Effective Time. Within five
business days prior to the date of the Closing, the
Company will deliver to Parent a schedule of all amounts
to be so settled. Except as expressly provided in this
Agreement or set forth on Exhibit A hereto, TI and the
Company shall cause all agreements between TI and its
affiliates (other than the Company and the Company
Subsidiaries) on the one hand, and the Company and the
Company Subsidiaries on the other hand, to be terminated
as of the Effective Time, including, without limitation,
any Tax (as defined in Section 4(f) hereof) sharing or
Tax allocation agreements (as set forth in Section 4(a)
of this Agreement).
4. Tax Matters and Post-Closing Taxes.
(a) Tax Sharing Agreements. Any Tax
sharing or Tax allocation agreement between TI and any of
the Company and the Company Subsidiaries shall be
terminated at the Effective Time, except as provided
elsewhere in this Agreement.
(b) Allocation of Tax Liability.
(i) Except as provided in the
immediately following paragraph, for any period ending on
or prior to the Effective Time, the Company or Parent
shall pay to TI any Taxes attributable to the Company or
the Company Subsidiaries (as determined in a manner
consistent with past custom and practices and the
language of any applicable Tax sharing agreement in force
prior to the Effective Time) with respect to which the
Company or the Company Subsidiaries join in any Tax
Return filed on a consolidated, combined or unitary
basis, and TI shall pay to the Company or Parent any
refund (or overpayment) of Taxes attributable to the
Company or the Company Subsidiaries (as determined in a
manner consistent with past custom and practices and the
language of any applicable Tax sharing agreement in force
prior to the Effective Time) with respect to which the
Company or the Company Subsidiaries join in any Tax
Return filed on a consolidated, combined or unitary
basis. Any such payment in respect of Taxes or any
refund of Taxes shall be paid within 30 days of any time
that TI is obligated to pay taxes to, or receives a
refund of, Taxes from, the appropriate taxing authority.
If a taxing authority audits or examines a Tax
Return and there is a Final Determination (as defined
herein) with respect to such Tax Return that results in
an adjustment to any item of income, loss, deduction or
credit (other than an adjustment that is a Timing
Difference (as defined herein) which shall be governed by
the preceding paragraph or a Reserve Study Timing
Difference (as defined herein), which shall be governed
by the paragraphs below, of the Company or any Company
Subsidiary for any period ending on or prior to the
Effective Time, Parent or the Company shall be liable
for, and shall pay TI, the amount of any Tax liability
resulting from each such adjustment until the aggregate
amount of all such adjustments equals $8,000,000. To the
extent that amounts governed by this paragraph exceed
$8,000,000, TI shall be liable, and have no right of
indemnification from Parent or the Company, for such
amounts. Any amounts for which Parent or the Company is
liable under this paragraph shall be paid no later than
30 days after TI sends to Parent a written notice of any
Final Determination together with a statement indicating
the amounts owed by Parent or the Company pursuant to
this paragraph.
For purposes of this Agreement, "Timing
Difference" shall mean, with respect to any item of
income, loss, deduction or credit, an adjustment of any
such item in a tax period which will result in an actual
or potential corresponding adjustment in one or more
other tax periods.
For purposes of this Agreement, "Final
Determination" shall mean any agreement, settlement,
compromise, or administrative or judicial determination,
from which no appeal can be made.
For purposes of this Agreement, "Reserve Study
Deductions" shall equal the amount of the statutory
reserve strengthening determined in accordance with
Section 7.2(d) of the Merger Agreement (determined
without regard to the clause beginning "provided,
however").
For purposes of this Agreement, "Reserve Study
Timing Differences" shall mean all Reserve Study
Deductions that are not deducted in the income Tax Return
filed by TI on behalf of the Company and the Company
Subsidiaries for 1996 and for the tax period ending on
the day including the Effective Time.
(ii) Notwithstanding anything to
the contrary in this Section 4:
(A) To the extent that TI
believes that the Company (or any of the Company
Subsidiaries) is entitled to any Reserve Study Deductions
with respect to the Company's 1996 tax year or the
Company's tax period ending on the day including the
Effective Time, such Reserve Study Deductions shall be
reflected in the income Tax Return filed by TI on behalf
of the Company and the Company Subsidiaries for such tax
period. The amount of any Tax benefit resulting from
such Reserve Study Deductions shall not be paid to the
Parent or the Company by TI, nor shall such amount offset
against amounts receivable by TI from the Parent or the
Company, whether or not Parent or the Company would
otherwise be entitled to payment (by means of a direct
payment or offset) pursuant to any Tax sharing agreement
or any other provision of this Agreement.
(B) If a taxing authority
audits or examines a Tax Return and there is a Final
Determination with respect to such Tax Return that
results in the disallowance of a Reserve Study Deduction
deducted in accordance with Section 4(b)(ii)(A), TI shall
be liable for any Tax liability (including interest or
penalties) arising from such adjustment solely relating
to such disallowance, and the amount of the Reserve Study
Deductions disallowed shall be treated as a Reserve Study
Timing Difference by TI, Parent and the Company;
provided, however, that any adjustment for amounts
deducted in 1996 that are allowed as deductions in the
Tax year of the Company ending on the Effective Date
shall not be considered a Reserve Study Timing Difference
but instead shall be covered by the provisions of Section
4(b)(ii)(A).
(C) Parent or the Company
shall pay TI annually for ten (10) years an amount equal
to (x) the aggregate amount of the Reserve Study Timing
Difference divided by ten (10) and multiplied by (y) the
Applicable Rate. For purposes hereof, the Applicable
Rate shall be the maximum U.S. Federal statutory tax rate
applicable to corporations for the year of payment.
(D) With respect to all
amounts which are Reserve Study Timing Differences
(including amounts that are treated as Reserve Study
Timing Differences pursuant to Section 4(b)(ii)(B)), the
first annual payment to be paid to TI pursuant to Section
4(b)(ii)(C) shall be deemed to be due and payable on
December 31, 1997 and subsequent annual payments shall be
deemed to be due and payable annually thereafter;
provided, however, that any amount owed by Parent or
Company to TI because of a Reserve Study Timing
Difference arising under Section 4(b)(ii)(E) shall be
paid to TI no sooner than the year of the Final
Determination giving rise to the Reserve Study Timing
Difference.
(iii) From and after the Effective
Time, TI hereby agrees to defend and promptly to
indemnify and hold harmless Parent, each of its
Affiliates (including the Company and each Company
Subsidiary that becomes an affiliate of Parent), and
their respective officers, directors, employees, agents,
successors and assigns (collectively, the "Parent
Indemnitees"), as the case may be, from and against all
past, present and future demands, claims, suits, actions
or causes of action, assessments, judgments, losses,
damage or damages, liabilities, costs and expenses,
including, without limitation, interest, penalties,
reasonable attorneys' and consultants' fees,
disbursements and expenses and all other expenses
incurred in investigating, preparing or defending any
litigation or proceeding, commenced or threatened
(collectively, the "Damages"), asserted against,
resulting to or imposed upon or incurred by any Parent
Indemnitee by reason of, or resulting from, or in
connection with, any liability of TI or any current or
prior member of its affiliated group other than the
Company and the Company Subsidiaries for Taxes however
and whenever arising.
(iv) From and after the Effective
Time, Parent hereby agrees to defend and promptly to
indemnify and hold harmless TI, each of its Affiliates
(other than the Company and the Company Subsidiaries),
and their respective officers, directors, employees,
agents, successors and assigns (collectively, the "TI
Indemnitees"), as the case may be, from and against all
Damages asserted against, resulting to, or imposed upon
or incurred by any TI Indemnitee, by reason of, or
resulting from, or in connection with, subject to Section
4(b)(v), any liability of the Company and the Company
Subsidiaries for taxes related or allocable to any period
ending after the Effective Time.
(v) In the case of Taxes that
are payable with respect to any taxable period that
begins before the Effective Time and ends after the
Effective Time, the portion of any such Tax that is
allocable to the portion of the period ending on the
Effective Time shall: (1) in the case of Taxes that are
either (x) based upon or related to income or receipts or
(y) imposed in connection with any sale, transfer or
assignment or any deemed sale, transfer or assignment of
property (real or personal, tangible or intangible) be
deemed equal to the amount that would be payable if the
taxable year ended on the Effective Time and (2) in the
case of Taxes imposed on a periodic basis with respect to
the assets of the Company or any of the Company
Subsidiaries or otherwise measured by the level of any
item, be deemed to be the amount of such Taxes for the
entire period (or, in the case of such Taxes determined
on an arrears basis, the amount of such Taxes for the
immediately preceding period) multiplied by a fraction
the numerator of which is the number of calendar days in
the portion of such period ending on the Effective Time
and the denominator of which is the number of calendar
days in the entire period. For purposes of clause (1)
above, any exemption, deduction, credit or other item
that is calculated on an annual basis shall be allocated
to the portion of the period beginning before the
Effective Time and, pursuant to clause (1), treated as
ending on the Effective Time, based on the pro rata
portion of such item allocable to such portion of such
period determined by multiplying the total amount of such
item allocated to such period times a fraction, the
numerator of which is the number of calendar days in such
portion of such period ending on the Effective Time and
the denominator of which is the number of calendar days
in the entire period.
(vi) In a period ending after the
Effective Time, Parent has the right to request TI to
prepare and file a claim for refund or amended Tax Return
for any such period ended prior to or on the Effective
Time, at Parent's cost and expense, (A) if the Company
has a Tax loss for such period, and, as a result of such
Tax loss, the Company would become entitled to a refund
or credit of Taxes solely as a result of a carryback of
such Tax loss to a period ended prior to or on the
Effective Time, or (B) upon approval by TI (which
approval may be withheld upon TI's sole discretion), if
the Company may obtain a Tax benefit by filing an amended
Tax Return. TI shall pay to Parent any Tax benefit so
resulting (as a result of the immediately preceding
sentence) and actually recognized by TI, provided,
however, TI is not required to prepare and file any claim
for refund or amended Tax Return if TI determines in good
faith that any refund or credit of Tax which may result
could not be utilized in a Tax Return to obtain a Tax
benefit. In the event that any Tax benefit for which a
payment has been made to the Company or Parent is
subsequently reduced or disallowed, Parent shall
indemnify and hold harmless TI for any Tax assessed
against TI (or TI's affiliated group) by reason of the
reduction or disallowance. TI agrees to use its best
efforts to generate capital gain of no less than $50
million during the Tax period ending at the Effective
Time and to prepare and file a claim for refund or
amended Tax Returns, if so requested by Parent or
Company, to permit Company to carry back up to $50
million of capital losses to such Tax period or, if
appropriate, any other prior Tax period in which the
Company has unutilized capital gains. The immediately
preceding sentence limits other provisions of this
Section 4(b)(vi) only with respect to the Company's right
to request capital loss carrybacks after the Effective
Time.
(c) Returns and Payments.
(i) From the date of this
Agreement through and after the Effective Time, TI shall
prepare and file or otherwise furnish to the appropriate
party (or cause to be prepared and filed or so furnished)
in a timely manner all Tax Returns with respect to the
Company and the Company Subsidiaries for any taxable
period ending on or before the Effective Time in
accordance with the Company's past custom and practice,
and Parent shall do the same for any taxable period
ending after the Effective Time.
(ii) Except as otherwise provided
in this Section 4, payment of any amounts due under this
Section 4 shall be made (i) with respect to amounts as to
which there is an agreement between TI and Parent that
such amount is payable, at least three calendar days
before the payment of any such Tax is due, provided that
no such payment shall be due prior to 10 business days
following receipt of written notice that payment of such
Tax is due, or (ii) within 10 business days following
either an agreement between TI and Parent that an amount
is payable by TI or Parent to the other or within 10
business days of a Final Determination.
(iii) From and after the date of
this Agreement and until the Effective Time, TI shall
cause the Company and the Company Subsidiaries to furnish
Tax information with respect to 1995 to TI for inclusion
in TI's federal consolidated income Tax Return or any
consolidated or combined state Tax Return for such period
in accordance with Company's past custom and practice.
In the event that such 1995 Tax information has not been
completed and delivered to TI prior to the Effective
Time, after the Effective Time, Parent shall not take any
action to impede or restrict the Company and the Company
Subsidiaries from furnishing such 1995 Tax information to
TI and shall support the ongoing efforts of the Company
and the Company Subsidiaries in such regard. After the
Effective Time, with respect to a Tax Return for 1996,
Parent shall cause the Company and the Company
Subsidiaries to furnish Tax information to TI for
inclusion in TI's federal consolidated income Tax Return
or any consolidated or combined state Tax Return in
accordance with the Company's past custom and practice.
(iv) Prior to and including the
Effective Time, Parent shall have the right of approval
(which approval shall not be unreasonably withheld) over
Company Tax positions taken in (A) the U.S. Federal
Income Tax Return for 1995 and the period ending on the
Effective Time, and (B) other tax returns the failure of
which to file would have a Company Material Adverse
Effect. After the Effective Time, TI shall have the
right of approval over Company Tax positions taken in the
U.S. Federal Income Tax Return for 1995 and the period
ending on the Effective Time, which approval will not be
unreasonably withheld.
(d) Cooperation and Exchange of
Information. TI and Parent will provide each other with
such cooperation and information as either of them
reasonably may request of the other in filing any Tax
Return determining a liability for Taxes or a right to a
refund of Taxes or participating in or conducting any
audit or other proceeding in respect of Taxes. Such
cooperation and information shall include providing
copies of relevant Tax Returns or portions thereof,
together with accompanying schedules and related work
papers (to the extent such documents are not subject to
attorney-client or similar privileges) and documents
relating to rulings or other determinations by taxing
authorities, but in no event shall TI or Parent be
required to disclose to the other any information
relating to the operations of either, as the case may be,
other than information relating to a liability for Taxes
of the Company and the Company Subsidiaries. TI and
Parent shall make their respective employees available on
a mutually convenient basis to provide explanations of
any documents or information provided hereunder. TI and
Parent will retain all Tax Returns, schedules and work
papers and all material records or other documents
relating to Tax matters of the Company and the Company
Subsidiaries for its taxable period first ending after
the Effective Time and for all prior taxable periods
until the expiration of the statute of limitations of the
taxable periods to which such Tax Returns and other
documents relate, without regard to extensions (but
taking into account any extended statute of limitations
applicable to a year in which a net operating loss is
reported) except to the extent notified by the other
party in writing of such extensions for the respective
Tax periods. After such time, before Parent shall
dispose of any of such books and records, at least 90
calendar days prior written notice to such effect shall
be given by Parent to TI, and TI shall be given an
opportunity, at its cost and expense, to remove and
retain all or any part of such books and records as TI
may select. Any information obtained under this Section
4(d) shall be kept confidential, except as may be
otherwise necessary in connection with the filing of Tax
Returns or claims for refund or in conducting an audit or
other proceeding or as otherwise required by law.
(e) Method of Asserting Tax Claims.
(i) After the Closing, Parent
and TI each shall promptly notify the other party in
writing of the commencement of any Tax audit or
administrative or judicial proceeding affecting the Taxes
of the Company or any of the Company Subsidiaries, which,
if determined adversely to the taxpayer or after the
lapse of time would be grounds for indemnification under
this Section 4 ("Tax Indemnitee") by the other party
("Tax Indemnitor"). Such notice shall contain factual
information describing the asserted Tax liability in
reasonable detail and shall include copies of any notice
or other document received from any taxing authority in
respect of any such asserted Tax liability. If either
Parent or TI fails to give the other party prompt notice
of an asserted Tax liability as required by this Section
4(e), then (1) if the Tax Indemnitor is precluded by the
failure to give prompt notice from contesting the
asserted Tax liability in the appropriate administrative
or judicial forms, then such party shall not have any
obligation to indemnify the other party for any loss or
damage arising out of such asserted Tax liability, and
(2) if the Tax Indemnitor is not so precluded from
contesting, if such failure to give prompt notice results
in a detriment to the Tax Indemnitor, then any amount
which the Tax Indemnitor is otherwise required to pay
pursuant to this Section 4 with respect to such liability
shall be reduced by the amount of such detriment.
(ii) TI may participate, through
counsel of its own choosing and at its own expense, in
any audit or administrative or judicial proceeding
involving any asserted liability with respect to which
indemnity may be sought under this Section 4 (any such
audit or proceeding relating to an asserted Tax liability
are referred to herein collectively as a "Contest"). If
TI elects to participate in the Contest of an asserted
Tax liability, it shall within 30 calendar days of
receipt of the notice of an asserted Tax liability notify
Parent of its intent to do so and Parent shall cooperate
in good faith and shall cause the Company or its
successor or successors to cooperate in good faith in
each phase of such Contest. If such examination relates
solely to periods for which TI is solely responsible for
any Tax liability resulting therefrom, TI, at its
election, may control such Contest. If TI elects not to
participate in the Contest, fails to notify Parent of
such election as herein provided or contests its
obligation to indemnify hereunder, Parent, the Company or
any of the Company Subsidiaries may pay, compromise or
contest such asserted liability. If such examination
relates in any part to periods for which Parent and the
Company are responsible, Parent and the Company shall
control such Contest. In any case, neither TI, Parent nor
the Company or the Company Subsidiaries (including any
designated representative of either) may settle or
compromise any asserted liability in a manner that would
create any indemnification obligation of any other party
hereto unless such settlement or compromise would be
reasonable in the case of a person that owned the Company
and the Company Subsidiaries both before and after the
Effective Time. In any event, each of Parent, the
Company and any of the Company Subsidiaries may
participate, through counsel of its own choosing and at
its own expense, in any Contest.
(iii) TI will allow Parent and its
counsel to participate at its own expense in any audits
of any consolidated or combined income Tax Returns to the
extent that such Tax Returns relate to the Company or any
of the Company Subsidiaries. TI will not settle any such
audit in a manner which would adversely affect the
Company or any of the Company Subsidiaries after the
Effective Time unless such settlement would be reasonable
in the case of a person that owned the Company and the
Company subsidiaries both before and after the Effective
Time.
(f) For purposes of this Agreement, "Tax"
(and, with correlative meaning, "Taxes") shall include
all income and franchise taxes, including, without
limitation, any taxes measured by or relating to income
or profits, together with any interest, fines, penalties,
additions to tax, and other additional amounts relating
thereto, imposed by any federal, state, local or foreign
taxing authority, provided that Taxes shall only refer to
taxes reportable on a Tax Return jointly filed by TI and
the Company or any Company Subsidiary on a consolidated,
combined or unitary basis.
For purposes of this Agreement, "Tax Return"
shall mean any return, report or similar statement
required to be filed with respect to any Tax (including
any attached schedules), including, without limitation,
any information return, claim for refund, amended return
or declaration of estimated Tax.
5. Arbitration.
(a) Agreement to Arbitrate. Any claim,
controversy or dispute arising out of or relating to this
Agreement, on which an amicable understanding cannot be
reached, to the maximum extent allowed by applicable law
and irrespective of the type of relief sought, shall be
submitted to and resolved by arbitration, and such
arbitration shall be the sole remedy for such matter.
Such arbitration shall be conducted expeditiously and
confidentially. In any such arbitration, the arbitrator
may not award any punitive or exemplary damages or any
damages other than compensatory damages.
(b) Initiating Arbitration. To initiate
arbitration, a party shall notify the other party in
writing of its desire to arbitrate, stating the nature of
its dispute and the remedy sought. The receiving party
shall acknowledge receipt of the notice in writing within
5 days of such receipt, and thereafter the parties shall
attempt in good faith to resolve the dispute within 15
days of the date of such acknowledgement. If the dispute
cannot be resolved within such 15-day period, any party
may send a written demand for arbitration to the other
party. Within 15 days of delivery of such demand for
arbitration, the parties shall appoint by mutual
agreement an arbitrator that is a nationally-recognized
accounting firm or law firm, provided, however, if the
parties cannot mutually agree on an arbitrator, the
parties' independent accounting firms will appoint a
neutral nationally-recognized accounting firm as
arbitrator.
(c) Effect. Any award rendered by the
arbitrators shall be accompanied by a written opinion
setting forth the findings of fact and conclusions of law
relied upon in reaching their decision. The award
rendered by the arbitrators shall be final, binding and
non-appealable, and judgment upon such award may be
entered by any court having jurisdiction thereof. The
parties agree that the existence, conduct and content of
any such arbitration shall be kept confidential and no
party shall disclose to any person any information about
such arbitration, except as may be required by law or for
financial reporting purposes in each party's financial
statements.
(d) Costs. Each party shall pay the fees
of its own attorneys, expenses of witnesses and all other
expenses in connection with the presentation of such
party's case. The remaining costs of the arbitration
shall be borne by the parties as designated by the
arbitrators.
6. Notices. All notices, consents, requests,
instructions, approvals and other communications provided
for herein shall be in writing and shall be deemed to
have been duly given if mailed, by first class or
registered mail, three (3) business days after deposit in
the United States Mail, or if telexed or telecopied, sent
by telegram, or delivered by hand or reputable overnight
courier, when confirmation is received, in each case as
follows:
(a) If to TI (or to the Company prior to the
Effective Time), to:
Textron Inc.
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Attention: Executive Vice President and
General Counsel
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▇▇▇-▇▇▇-▇▇▇▇ (telecopier)
with a copy to:
Textron Inc.
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Attention: Vice President, Taxes
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with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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(b) If to Parent (or to the Company after the
Effective Time), to:
Provident Companies, Inc.
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Attention: Chief Financial Officer
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with a copy to:
▇▇▇▇▇▇ & Bird
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
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or to such other persons or addresses as may be
designated in writing by the party to receive such
notice. Nothing in this Section 6 shall be deemed to
constitute consent to the manner and address for service
of process in connection with any legal proceeding
(including litigation arising out of or in connection
with this Agreement), which service shall be effected as
required by applicable law.
7. Entire Agreement, Modifications and
Waivers. This Agreement, together with all exhibits and
schedules hereto, constitutes the entire agreement
between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties
or any of them with respect to the subject matter hereof.
The parties hereto may modify or amend this Agreement, by
written agreement executed and delivered by duly
authorized officers of the respective parties. No waiver
of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise
expressly provided.
8. Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws
of the Commonwealth of Massachusetts without giving
effect to the principles of conflicts of laws thereof.
9. Severability. The validity or
unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other
provisions of this Agreement, each of which shall remain
in full force and effect.
10. Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of
and be enforceable by the parties and their respective
successors and permitted assigns.
11. Counterparts. For the convenience of the
parties hereto, this Agreement may be signed in any
number of counterparts, each such counterpart being
deemed to be an original instrument, and all such
counterparts shall together constitute one and the same
agreement.
12. Survival. The provisions of this
Agreement shall be absolute and shall survive until the
expiration of any applicable statutes of limitation.
IN WITNESS WHEREOF, the parties to this
Agreement have duly executed the same on the day and year
first above written.
TEXTRON INC.
By /s/ ▇▇▇▇▇▇▇ ▇. Key
Name: ▇▇▇▇▇▇▇ ▇. Key
Title: Executive Vice
President and Chief
Financial Officer
THE ▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief
Executive Officer
PROVIDENT COMPANIES, INC.
By /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
EXHIBIT A
TI shall take all actions necessary or
appropriate to maintain in force with the Company
Insurance Subsidiaries, for a period of three years
immediately following the Effective Time (as defined in
the Merger Agreement), the Master Group Policy relating
to long-term disability, short-term disability, life,
dental or accidental death and dismemberment insurance
presently underwritten by the Company Insurance
Subsidiaries covering employees, agents and/or eligible
dependents of TI and its affiliates, on terms and
conditions substantially similar to those in effect on
the date of this Agreement; provided, however, that the
Master Group Policy remains competitive with respect to
price, terms, available coverage and quality of service.
