EXHIBIT 9.1
VOTING AGREEMENT
DATED AS OF DECEMBER 17, 2001
VOTING AGREEMENT ("Agreement"), dated December 17, 2001, by and between
General Electric Company, a New York corporation ("Parent"), ▇▇▇▇▇▇▇▇
Acquisition, Inc., a Delaware corporation (the "Purchaser") and Berwind LLC, a
Delaware limited liability company ("Stockholder").
A. The Board of Directors of Interlogix, Inc., a Delaware corporation (the
"Company"), has previously approved, and concurrently herewith Parent, the
Purchaser and the Company are entering into, an Agreement and Plan of Merger of
even date herewith, as may be amended from time to time (the "Merger
Agreement"). Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Merger Agreement.
B. As of the date hereof, Stockholder is the record and beneficial owner of
15,736,797 shares of Common Stock, par value $0.01 per share, of the Company
(such shares together with any other shares of Common Stock acquired by
Stockholder after the date hereof being collectively referred to herein as the
"Stockholder Shares").
C. In accordance with the Merger Agreement, the Purchaser has agreed to
make, and Parent has agreed to cause the Purchaser to make, the Offer on the
terms and subject to the conditions contained in the Merger Agreement.
D. As a condition to its willingness to enter into the Merger Agreement, the
Purchaser has required that Stockholder enter into this Agreement.
In consideration of the mutual covenants and agreements contained herein and
intending to be legally bound hereby, the parties agree as follows:
1. AGREEMENT TO TENDER AND VOTE.
(a) TENDER. In accordance with the Merger Agreement, the Purchaser
shall make, and Parent shall cause the Purchaser to make, the Offer on the
terms and subject to the conditions contained in the Merger Agreement.
Provided this Agreement has not been terminated, Stockholder hereby agrees
that Stockholder will, within ten Business Days of the commencement of the
Offer, tender the Stockholder Shares into the Offer, pursuant to and in
accordance with the terms of the Offer, and that provided this Agreement has
not been terminated, it shall not withdraw any Stockholder Shares so
tendered prior to the termination of the Offer.
(b) VOTING. Prior to the termination of this Agreement, at any meeting
of the stockholders of the Company however called (or any action by written
consent in lieu of a meeting) with respect to the Merger or the Merger
Agreement or any adjournment thereof, Stockholder shall vote the Stockholder
Shares or cause them to be voted or execute written consents in respect
thereof (i) in favor of the Merger, the adoption of the Merger Agreement and
the approval of the terms thereof and the Transactions; (ii) against any
action or agreement that would result in a breach in any material respect of
any covenant or any other obligation or agreement of the Company under the
Merger Agreement or in a breach in any material respect of any
representation or warranty of the Company in the Merger Agreement;
(iii) against any Takeover Proposal; and (iv) against any amendment of the
Company Charter Documents or any other action or agreement that is intended
or could reasonably be expected to impede, interfere with, delay, postpone
or discourage the Offer or the Merger or change in any manner the voting
rights of any class of the Company Common Stock. Stockholder agrees not to
assert any statutory appraisal rights it may have under the DGCL in
connection with the Merger.
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2. REPRESENTATION AND WARRANTIES OF THE PARENT AND PURCHASER.
The Parent and the Purchaser each hereby jointly and severally represents
and warrants to Stockholder as follows:
(a) CORPORATE ORGANIZATION. Each of Parent and Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the requisite corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted. Each of Parent's
subsidiaries is a corporation or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has the requisite corporate power and authority to own or
lease all of its properties and assets and to carry on its business as it is
now being conducted, except as would not reasonably be expected to have a
Parent Material Adverse Effect. Each of Parent and its subsidiaries is duly
licensed or qualified to do business in each jurisdiction in which the
nature of the business conducted by it or the character or location of the
properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or
qualified would not reasonably be expected to have a Parent Material Adverse
Effect.
(b) AUTHORITY. Each of Parent and Purchaser has all necessary
corporate power and authority to execute and deliver this Agreement and the
Merger Agreement and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance by Parent and Purchaser of
this Agreement and the Merger Agreement, and the consummation of the
transactions contemplated hereby and thereby, have been duly authorized and
approved by their Boards of Directors and by Parent as the sole stockholder
of Purchaser, and no other corporate action on the part of Parent and
Purchaser is necessary to authorize the execution and delivery by Parent and
Purchaser of this Agreement and the Merger Agreement and the consummation by
them of the transactions contemplated hereby and thereby. Each of this
Agreement and the Merger Agreement has been duly executed and delivered by
Parent and Purchaser, and, assuming due and valid authorization, execution
and delivery hereof by the other parties hereto or thereto, is a valid and
binding obligation of each of Parent and Purchaser, enforceable against each
of them in accordance with its terms, except that such enforceability
(i) may be limited by bankruptcy, insolvency, moratorium or other similar
laws affecting or relating to the enforcement of creditors' rights generally
and (ii) is subject to general principles of equity.
(c) CONSENTS AND APPROVALS; NO VIOLATIONS.
(i) Except for (i) the filing with the SEC of the Offer Documents and
the Proxy Statement/Prospectus, if any, (ii) the filing of the
Certificate of Merger with the Secretary of State of the State of
Delaware pursuant to the DGCL, and (iii) filings, permits,
authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Exchange Act, the Securities Act,
the HSR Act and Foreign Antitrust Laws and state securities or blue sky
laws, no consents or approvals of, or filings, declarations or
registrations with, any Governmental Entity or the New York Stock
Exchange, Inc. are required to be obtained or made by Parent or Purchaser
in connection with the transactions contemplated by this Agreement and
the Merger Agreement, other than such other consents, approvals, filings,
declarations or registrations that, if not obtained, made or given, would
not reasonably be expected to materially delay Parent's or Purchaser's
performance of their respective material obligations under this Agreement
and the Merger Agreement or to have a Parent Material Adverse Effect. In
addition, the issuance of Parent Common Stock in connection with the
Offer and the Merger is subject to the approval of such Parent Common
Stock for listing on the New York Stock Exchange, subject to official
notice of issuance, which approval Parent shall obtain promptly after
commencement of the Offer and in any case prior to the Expiration Date.
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(ii) Neither the execution and delivery of this Agreement or the
Merger Agreement by Parent or Purchaser, nor the consummation by Parent
or Purchaser of the transactions contemplated hereby or thereby, nor
compliance by Parent or Purchaser with any of the terms or provisions
hereof or thereof, will (A) conflict with or violate any provision of the
certificate of incorporation or bylaws of Parent or any of the similar
organizational documents of Purchaser or any of Parent's or Purchaser's
subsidiaries or (B) assuming that the authorizations, consents and
approvals referred to in Section 2(c)(i) are obtained, (x) violate any
statute, code, ordinance, rule, regulation, judgment, order, writ, decree
or injunction applicable to Parent or any of its subsidiaries or any of
their respective properties or assets, or (y) violate, conflict with,
result in the loss of any material benefit under, constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required
by, or result in the creation of any Lien upon any of the respective
properties or assets of Parent or Purchaser or any of their respective
subsidiaries under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement
or other instrument or obligation to which Parent, Purchaser or any of
their respective subsidiaries is a party, or by which they or any of
their respective properties or assets may be bound or affected, except,
in the case of clause (B) above, for such violations, conflicts,
breaches, defaults, losses, terminations of rights thereof, accelerations
or Lien creations which would not reasonably be expected to have a Parent
Material Adverse Effect or a material adverse effect on the ability of
Parent or Purchaser to consummate the transactions contemplated by this
Agreement and the Merger Agreement.
(d) FINANCING. Parent and the Purchaser collectively have and will
have at the Expiration Date, at the Effective Time and so long as this
Agreement has not been terminated, and Parent will make available to the
Purchaser, sufficient funds to enable the Purchaser to pay that portion of
the Offer Price and Merger Consideration to be paid for all outstanding
Shares purchased pursuant to the Offer (including the Stockholder Shares
held by Stockholder) or converted into cash and Parent Common Stock pursuant
to the Merger, to perform Parent's and the Purchaser's obligations under
this Agreement and the Merger Agreement and to pay all fees and expenses
related to the transactions contemplated by this Agreement and the Merger
Agreement payable by them.
3. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
Stockholder hereby represents and warrants to the Parent and the Purchaser
as follows:
(a) OWNERSHIP OF SHARES. Stockholder owns of record and beneficially
the number of Stockholder Shares set forth in the preamble hereto and such
Shares constitute all of the Shares owned of record or beneficially by
Stockholder. Except as disclosed on Exhibit A, Stockholder has sole voting
power and sole power of disposition with respect to all of the Stockholder
Shares, with no restrictions on Stockholder's rights of voting or
disposition pertaining thereto (except under applicable securities laws) and
no other person or entity has any right to direct Stockholder with respect
to voting any of the Stockholder Shares or approve the voting by Stockholder
of any of the Stockholder Shares or has any right to approve any amendment
or modification of this Agreement. Except as disclosed on Exhibit A,
Stockholder owns all of the Stockholder Shares, free and clear of any Lien,
other than pursuant to this Agreement.
(b) LEGAL CAPACITY; AUTHORITY RELATIVE TO THIS AGREEMENT. Stockholder
has all necessary limited liability company power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by Stockholder of this Agreement have
been duly authorized and approved by all necessary limited liability company
action of Stockholder and no other limited liability company action on the
part of Stockholder is
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necessary to authorize the execution, delivery and performance by
Stockholder of this Agreement. This Agreement has been duly executed and
delivered by Stockholder and, assuming due and valid authorization,
execution and delivery hereof by the Parent and Purchaser, is a valid and
binding obligation of the Stockholder, enforceable against Stockholder in
accordance with its terms, except that such enforceability (i) may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to the enforcement of creditors' rights generally and
(ii) is subject to general principles of equity.
(c) CONSENTS AND APPROVALS; NO VIOLATIONS.
(i) Except for filings, permits, authorizations, consents and
approvals as may be required under, and other applicable requirements of,
the Exchange Act, the Securities Act, the HSR Act and Foreign Antitrust
Laws, no consents or approvals of, or filings, declarations or
registrations with, any Governmental Entity are required to be obtained
or made by Stockholder in connection with the transactions contemplated
hereby, other than such other consents, approvals, filings, declarations
or registrations that, if not obtained, made or given, would not
reasonably be expected to materially delay Stockholder's performance of
its material obligations under this Agreement or to have a Material
Adverse Effect on Stockholder.
(ii) Neither the execution and delivery of this Agreement by
Stockholder, nor the performance by Stockholder of its obligations
hereunder, will (A) conflict with or violate any provision of any
organizational document of Stockholder or (B) assuming that the
authorizations, consents and approvals referred to in
Section 3(c)(i) are obtained, (x) violate any statute, code, ordinance,
rule, regulation, judgment, order, writ, decree or injunction applicable
to Stockholder or any of its properties or assets, or (y) violate,
conflict with, result in the loss of any material benefit under,
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of or
a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any Lien upon any of the
respective properties or assets of Stockholder under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to
which Stockholder is a party, or by which it or any of its properties or
assets may be bound or affected, except, in the case of clause (B) above,
for such violations, conflicts, breaches, defaults, losses, terminations
of rights thereof, accelerations or Lien creations which would not
reasonably be expected to have a Material Adverse Effect on Stockholder
or a material adverse effect on the ability of Stockholder to perform its
obligations hereunder.
(d) BROKERS. No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission that is payable by the Company in connection with
the transactions contemplated by this Agreement or the Merger Agreement
based upon the arrangements made by or on behalf of Stockholder (it being
understood that the Company, as described in Section 3.19 of the Company
Disclosure Schedule, has engaged UBS as the Company's financial advisor).
4. CERTAIN COVENANTS OF STOCKHOLDER.
Except in accordance with the terms of this Agreement, Stockholder hereby
covenants and agrees as follows:
(a) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE. Prior to
the termination of this Agreement, Stockholder shall not (i) except as
contemplated by this Agreement, sell, transfer, give, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer, gift,
pledge, encumbrance,
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assignment or other disposition of any of the Stockholder Shares (each of
the foregoing, a "Transfer"), (ii) grant any proxies, deposit any
Stockholder Shares into a voting trust or enter into a voting agreement,
power of attorney or voting trust with respect to any of the Stockholder
Shares or (iii) take any action that would make any representation or
warranty of Stockholder contained herein untrue or incorrect in any material
respect or have the effect of preventing or disabling Stockholder from
performing Stockholder's obligations under this Agreement.
(b) ADDITIONAL SHARES. Prior to the termination of this Agreement,
Stockholder will promptly notify the Purchaser of the number of any new
Shares acquired directly or beneficially by Stockholder, if any, after the
date hereof. Any such shares shall become Stockholder Shares for purposes of
this Agreement.
(c) NONSOLICITATION. From the date hereof until the termination
hereof, Stockholder, in its capacity as a stockholder of the Company, will
not, and will not authorize or knowingly permit any investment bankers,
attorneys, accountants, consultants and other agents or advisors
(collectively, "Representatives") of Stockholder to, directly or indirectly,
(i) solicit, or knowingly encourage or initiate the submission of any
Takeover Proposal or (ii) engage in any negotiations regarding, or furnish
to any person any nonpublic information with respect to, or take any other
action knowingly to facilitate any inquiries or the making of any proposal
that constitutes, or may be reasonably expected to lead to, any Takeover
Proposal; provided, however, that the Stockholder may furnish such
information to and engage in such discussions or negotiations with such
person regarding a Takeover Proposal if at such time the Company is
permitted under the Merger Agreement to provide information and engage in
discussions or negotiations with such person regarding a Takeover Proposal.
(d) NOTICE. Stockholder will notify Parent promptly (but in no event
later than 48 hours) in writing if any person shall make a proposal or
inquiry, or contact Stockholder, relating to the acquisition of beneficial
ownership of any Stockholder Shares. The notice shall state the identity of
the person and the material terms and conditions of such proposal, inquiry
or contact. Stockholder shall keep Parent reasonably apprised of any
material development with respect to such proposal. Stockholder shall, and
shall cause its Representatives to, cease immediately and cause to be
terminated all existing discussions or negotiations, if any, with any
persons conducted heretofore with respect to, or that could reasonably be
expected to lead to, any Takeover Proposal.
(e) CONDUCT OF STOCKHOLDER. (i) Stockholder shall not adopt any plan
of complete or partial liquidation, dissolve, merge or combine with any
person or entity, or permit any change in the beneficial ownership interests
of Stockholder and (ii) Stockholder shall maintain its status as a duly
organized and validly existing limited liability company in good standing
under the laws of the State of Delaware, in each case, without the prior
written consent of Parent, which consent shall not be unreasonably withheld
or delayed, provided that Parent may withhold its consent if in its judgment
permitting the requested action would jeopardize the benefits intended to be
provided to it under the Agreement.
5. RECAPTURE OF PROFITS.
If (A) the Merger Agreement is terminated by the Company pursuant to
Section 7.1(c)(ii) of the Merger Agreement and (B) within nine (9) months after
the date of such termination, Stockholder consummates the sale, transfer or
other disposition for value of any or all of its Stockholder Shares to or with
any person or entity not an affiliate or associate of Parent, Purchaser or the
Company (but including a sale to the Company if such sale is a transactional
element of a Takeover Proposal) (i) in connection with a Takeover Proposal or
(ii) in a transaction or series of related transactions which would reasonably
be expected to lead to or facilitate the making or consummation of a Takeover
Proposal (such sale, transfer or other disposition of Stockholder Shares being
collectively referred to as
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an "Alternative Disposition"), and (C) within nine (9) months after the date of
such termination of the Merger Agreement such Takeover Proposal or any other
Takeover Proposal is consummated, then the Stockholder shall, within three
Business Days of the closing of such Takeover Proposal, pay to Parent, the
amount of the Profit, if any, realized by Stockholder from such Alternative
Disposition, net of Stockholder's reasonably documented expenses in connection
with such Alternative Disposition, any taxes incurred by Stockholder on such
Profit and any legal fees incurred by Stockholder in connection with the
execution, delivery and performance of this Agreement; provided, however, that
the sale by Stockholder of any of its Stockholder Shares pursuant to an
underwritten public offering (so long as at the time of the closing of such
public offering there has not been publicly announced and pending a Takeover
Proposal and Stockholder does not have actual knowledge of a planned Takeover
Proposal) or a sale pursuant to Rule 144 of the Securities Act shall not be
considered an Alternative Disposition which is subject to the provisions of this
Section 5. As used in this Section, "Profit" shall be calculated on a per Share
basis and shall mean an amount equal to the excess, if any, of the per Share
proceeds received by Stockholder in such Alternative Disposition over the per
Share Offer Price (or such higher price as Parent or its affiliates may offer
for the Shares). Any such Profits received by Stockholder on such Alternative
Disposition will be paid to Parent in the same form and in the same proportion
as was received by Stockholder. Notwithstanding anything to the contrary
contained herein, under no circumstances shall the Stockholder be required to
pay to Parent an amount which would result in Stockholder retaining from such
Alternative Disposition an amount less than Stockholder would have received had
the Merger Agreement been consummated.
6. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(a) Subject to the last sentence of subsection (c) hereunder,
Stockholder hereby irrevocably grants to, and appoints, Parent and each of
its designees (individually, an "Authorized Party" and, collectively, the
"Authorized Parties"), and each of them individually, as Stockholder's proxy
and attorney-in-fact (with full power of substitution), for and in the name,
place and stead of Stockholder, to vote the Stockholder Shares, or execute
one or more written consents or approvals in respect of the Stockholder
Shares, (i) in favor of the Merger, the adoption of the Merger Agreement and
the approval of the terms thereof and the Transactions; (ii) against any
action or agreement that would result in a breach in any material respect of
any covenant or any other obligation or agreement of the Company under the
Merger Agreement or in a breach in any material respect of any
representation or warranty of the Company in the Merger Agreement;
(iii) against any Takeover Proposal; and (iv) against any amendment of the
Company Charter Documents or any other action or agreement that is intended
or could reasonably be expected to impede, interfere with, delay, postpone
or discourage the Offer or the Merger or change in any manner the voting
rights of any class of the Company Common Stock. Notwithstanding anything
contained herein to the contrary, such irrevocable proxy will not be
exercised by any Authorized Party unless Stockholder breaches its
obligations under Section 1(b) of this Agreement.
(b) Stockholder represents that any proxies heretofore given in respect
of the Stockholder Shares are revocable, and that any such proxies have been
or are hereby revoked.
(c) Stockholder hereby affirms that the irrevocable proxy set forth in
this Section 6 is given in connection with the execution of the Merger
Agreement and that such irrevocable proxy is given to secure the performance
of the duties of Stockholder in accordance with this Agreement. Stockholder
hereby further affirms that the irrevocable proxy granted hereby is coupled
with an interest and may under no circumstances be revoked, except as
otherwise provided in this Agreement. Stockholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done
by virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable prior to termination of this Agreement in accordance with the
provisions of Section 212(e) of the DGCL. Such irrevocable proxy shall be
valid until the termination of this
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Agreement pursuant to Section 9. Notwithstanding anything contained herein
to the contrary, this irrevocable proxy shall automatically terminate upon
the termination of this Agreement.
(d) Any action taken by any such party pursuant to the proxy granted
under this Section 6(a) shall provide that Stockholder may revoke such
action effective upon termination of this Agreement.
7. FURTHER ASSURANCES.
From time to time, at the request of any other party and without further
consideration, each party hereto shall execute and deliver such additional
documents and take all such further action as may be reasonably required to
consummate and make effective, in the most expeditious manner practicable, the
Offer and the Merger and the transactions contemplated by this Agreement and the
Merger Agreement.
8. CERTAIN EVENTS.
Stockholder agrees that this Agreement and the obligations hereunder shall
attach to the Stockholder Shares and shall be binding upon any person or entity
to which legal or beneficial ownership of such Stockholder Shares shall pass,
whether by operation of law or otherwise, including Stockholder's administrators
or successors. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of the
Company affecting the Company Common Stock or other voting securities of the
Company, the number of Stockholder Shares shall be deemed adjusted appropriately
and this Agreement and the obligations hereunder shall attach to any additional
shares of Company Common Stock or other voting securities of the Company issued
to or acquired by Stockholder.
9. TERMINATION.
This Agreement shall terminate on the first to occur of (a) the day after
any of the Shares are accepted for payment pursuant to the Offer, provided that
the Stockholder has complied with its agreements contained in Section 1(a);
(b) the Effective Time; (c) the termination of the Merger Agreement; and
(d) 180 calendar days after the date hereof. Notwithstanding the foregoing,
(i) the provisions of Section 10 (Miscellaneous) shall survive the termination
of this Agreement and (ii) if this Agreement is terminated as the consequence of
the termination of the Merger Agreement pursuant to Section 7.1(c)(ii) of the
Merger Agreement, the provisions of Section 5 (Recapture of Profits) and
Section 4(e) (Conduct of Stockholder) shall survive termination of this
Agreement and shall terminate (a) nine (9) months after termination of the
Merger Agreement, if no Alternative Disposition has occurred within such nine
(9) months or (b) at such time as Stockholder has discharged its obligations
under Section 5 hereof, if an Alternative Disposition has occurred within nine
(9) months after termination of the Merger Agreement. Stockholder shall have the
right to terminate this Agreement by written notice to Parent if the terms of
the Merger Agreement or the Offer are amended or waived without the written
consent of Stockholder, but only if such amendment or waiver creates any
additional condition to the Offer, reduces the Offer Price or the Merger
Consideration, changes the form or mix of the Offer Price or Merger
Consideration or otherwise adversely affects Stockholder; provided that for the
purposes of this sentence, the term "Merger Agreement" shall mean the Agreement
and Plan of Merger by and among the Parent, the Purchaser and the Company of
even date herewith, as in effect on the date hereof, and capitalized terms used
in this sentence shall have the meaning given such terms therein.
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10. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
(b) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that the Parent may assign, in its sole
discretion, any or all of its rights hereunder to any direct or indirect
wholly owned subsidiary of Parent; provided that any such assignment would
not cause any delay in the consummation of the Offer or the Merger; and
provided further that no such assignment shall relieve Parent of its
obligations hereunder. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the
parties and their respective successors and assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other
than the parties hereto and their respective successors and assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
(c) AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
(d) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof or of any other
jurisdiction. Notwithstanding anything herein to the contrary, the parties
hereto hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the courts of the State of Delaware and of the
United States of America located in the State of Delaware (the "Delaware
Courts") for any litigation arising out of or relating to this Agreement
(and agrees not to commence counterclaims except in such courts), waives any
objection to the laying of venue of any such litigation in the Delaware
Courts and agrees not to plead or claim in any Delaware Court that such
litigation brought therein has been brought in any inconvenient forum.
(e) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes and
acknowledges that a breach by it of any of its covenants or agreements
contained in this Agreement will cause the other party to sustain damages
for which it would not have an adequate remedy at law for money damages, and
therefore in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
(g) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(h) SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such jurisdiction,
and this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
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(i) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered in person, by overnight courier, by facsimile
transmission with confirmation of receipt, or by registered or certified
mail (postage prepaid, return receipt requested) to the respective parties
as follows:
(i) if to Parent or Purchaser, to:
GE Industrial Systems
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Stockholder, to:
Berwind LLC
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
Berwind Group
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
(j) STOCKHOLDER CAPACITY. Stockholder signs this Agreement solely in
its capacity as the owner of the Stockholder Shares. Notwithstanding
anything herein to the contrary, nothing herein shall in any way restrict a
director of the Company in the exercise of his or her fiduciary duties as a
director of the Company or prevent any director of the Company from taking
any action in his or her capacity as a director of the Company.
(k) WAIVER OF JURY TRIAL. EACH OF PARENT, THE PURCHASER AND
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
PARENT, THE PURCHASER OR STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
GENERAL ELECTRIC COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
CEO GE Industrial Systems
▇▇▇▇▇▇▇▇ ACQUISITION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
BERWIND LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice
President--Administration
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EXHIBIT A
1. Pursuant to a
Voting Agreement dated May 2, 2000 by and among
Stockholder (as successor in interest to Berwind Group Partners), ▇▇▇▇▇▇ ▇. ▇▇▇▇
and MLGA Fund II, LP, Stockholder agreed, subject to the terms of such
Voting
Agreement, to vote all shares owned by it to elect ▇▇▇▇▇▇ ▇▇▇▇ as a director of
the Company, and to require any transferee of its shares to agree to be bound by
the
Voting Agreement. Stockholder has entered into an agreement with Mr. Auth to
terminate the
Voting Agreement effective at the Acceptance Date (as defined in
the Merger Agreement).
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