EXHIBIT 10.1
EMPLOYEE BENEFITS ALLOCATION AGREEMENT
THIS BENEFITS AGREEMENT is made and entered into as of this 25th day of
July, 1997 by and among General Semiconductor, Inc. a Delaware corporation
("GS"), NextLevel Systems, Inc., a Delaware corporation ("NextLevel Systems"),
and CommScope, Inc., a Delaware corporation ("CommScope").
WHEREAS, pursuant to the terms of that certain Distribution Agreement by
and among General Instrument Corporation, NextLevel Systems and CommScope and
dated as of June 12, 1997 (the "Distribution Agreement"), the parties have
entered into this Agreement regarding certain employment, compensation and
benefit matters occasioned by the Distributions.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement and the Distribution Agreement, each of
the parties hereto, on behalf of itself and each other member of its Group over
which it has direct or indirect legal or effective control, hereby agrees as
follows:
SECTION 1. Definitions. The following terms, when capitalized herein, shall have
the meanings set forth below in this Section 1. All other capitalized terms
which are used but are not otherwise defined herein shall have the meanings
ascribed to them in the Distribution Agreement.
"Active Employees" means, with respect to each Group, all employees
regularly engaged in the performance of services to, for or on behalf of
any member of such Group as of the close of business on the NextLevel
Systems Distribution Date.
"Former Employees" means, with respect to each Group, all former
employees of GI and/or its Subsidiaries (including, but not limited to,
such employees who, as of the close of business on the NextLevel Systems
Distribution Date, are on leave of absence, long-term disability or layoff
with recall rights and the dependents of those persons) who, if they were
regularly engaged in the performance of services to, for or on behalf of
GI or any of its Subsidiaries at the close of business on the NextLevel
Systems Distribution Date, would be an Active Employee of such Group,
determined on a basis consistent with the determination of the Active
Employees of such Group and shall, with respect to GS, include former
employees of previously disposed of businesses, discontinued operations
and the corporate office of GI.
"GS Salaried Welfare Plans" means, collectively, the General
Instrument Corporation Group Welfare Benefits Plan and the General
Instrument Corporation Cafeteria Plan.
SECTION 2. General Employment Matters.
2.01. General Obligations. Except as specifically provided herein, from
and after the NextLevel Systems Distribution Date, each of GS, NextLevel Systems
and CommScope shall and shall, as applicable, cause each of the other members of
its respective Group over which it has direct or indirect legal or effective
control to, (a) continue the employment of all of the Active Employees of its
respective Group, subject, however to the terms of Section 2.03 below and (b)
except as otherwise specifically provided herein, pay, perform and discharge any
and all labor, employment, compensation and benefit liabilities, whether arising
prior to, on or after the NextLevel Systems Distribution Date, with respect to
all such Active Employees and all Former Employees of its respective Group.
Except as specifically provided herein, each of GS, NextLevel Systems and
CommScope shall be solely responsible for the Former Employees of its respective
Group.
2.02. Initial Compensation of Active Employees. The initial compensation
(base salary or wage level) of each Active Employee of each Group shall be the
same as the compensation (base salary or wage level) of such Active Employee
immediately prior to the NextLevel Systems Distribution Date.
2.03. No Additional Employment Rights Created. Nothing in this Agreement
shall give any Active Employee of any Group any right to continued employment by
any member of that Group or any other Group beyond the NextLevel
Systems Distribution Date, which is in addition to or supplemental to any
such right he or she may have arising under contract or otherwise.
SECTION 3. United States Salaried Pension and Savings Plan Benefits.
3.01. Defined Benefit Plans.
(a) Effective as of June 30, 1997, Next Level Communications (a
member of the NextLevel Group) ceased to be a sponsor of the General
Instrument Corporation Pension Plan for Salaried and Hourly Paid Non-Union
Employees (the "Pension Plan"), and GS and the members of the GS Group
became the only sponsors of the Pension Plan. Effective as of July 1,
1997, NextLevel Systems established a defined benefit plan (the "NextLevel
Systems Pension Plan") for the benefit of the Active Employees and Former
Employees of the NextLevel Group who were, immediately prior to such
effective date, participants in the Pension Plan. Upon the transfer of
assets contemplated in Section 3.01(c), all liabilities for benefits
accrued under the Pension Plan through June 30, 1997 in respect of the
Active Employees and Former Employees of the NextLevel Group shall be
transferred from the Pension Plan to the NextLevel Systems Pension Plan.
The Pension Plan shall retain all other liabilities of the Pension Plan.
(b) Promptly after the NextLevel Systems Distribution Date, GS shall
cause the actuary of the Pension Plan (the "Plan Actuary") to allocate the
assets of the Pension Plan as of June 30, 1997 between the Pension Plan
and the NextLevel Systems Pension Plan. Such allocation shall reflect the
division of liabilities set forth in Section 3.01(a) and shall be effected
in accordance with Section 414(l) of the Code and the regulations
thereunder, using for such purpose those actuarial assumptions prescribed
by the Pension Benefit Guaranty Corporation for calculating unfunded
benefit liabilities in connection with single employer plans terminating
on June 30, 1997 (the "Assumptions"). If the fair market value of the
assets of the Pension Plan as of June 30, 1997, exceeds the present value
of accrued benefit liabilities calculated on a plan termination basis
using the Assumptions, such excess shall be allocated between the Pension
Plan and the NextLevel Systems Pension Plan in proportion to the present
value of the accrued benefit liabilities allocated to each such plan. The
assets allocable to the NextLevel Systems Pension Plan pursuant to this
Section 3.01(b) as of June 30, 1997 is hereinafter referred to as the
"Distribution Date Asset Value."
(c) As promptly as practical after the determination of the
Distribution Date Asset Value pursuant to Section 3.01(b), GS shall cause
the trustee of the Pension Plan to transfer to the trustee of the
NextLevel Systems Pension Plan the Distribution Date Asset Value (i)
increased by a proportionate share of the earnings (or decreased by a
proportionate share of losses) of the Pension Plan from June 30, 1997
until the date of transfer (the "Interim Period") and (ii) decreased by
benefit payments to the Active Employees and Former Employees of the
NextLevel Group during the Interim Period (the "Transferred Amount"). The
Transferred Amount shall be transferred in cash or other property as may
be agreed between the trustees of the respective plans.
(d) During the Interim Period, the Pension Plan shall make all
benefit payments that become due in respect of the Active Employees and
Former Employees of the NextLevel Group to the extent such benefits were
accrued under the Pension Plan through June 30, 1997.
(e) All calculations required under this Section 3.01 shall
initially be made by the Plan Actuary. The Plan Actuary shall provide to
the actuary for the NextLevel Pension Plan (the "NextLevel Actuary"), for
review, all calculations made pursuant to this Section 3.01, together with
all supporting documentation, work papers, census data and other
information reasonably requested by the NextLevel Actuary. If the Plan
Actuary and the NextLevel Actuary cannot agree on the determination of the
Transferred Amount, a third actuary, mutually agreeable to GS and
NextLevel Systems, shall be appointed, whose determination of the
Transferred Amount shall be binding on all parties; provided, however,
that the amount determined by the third actuary may not be lower than the
lowest amount nor higher than the highest amount determined by the Plan
Actuary and the NextLevel Actuary.
3.02. CommScope, Inc. Employees Profit Sharing and Savings Plan. CommScope
shall, immediately following the NextLevel Systems Distribution Date, continue
to sponsor the CommScope, Inc. Employees Profit Sharing and Savings Plan (the
"CommScope DC Plan").
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3.03. General Instrument (Puerto Rico), Inc. Savings Plan. NextLevel
Systems shall, immediately following the NextLevel Systems Distribution Date,
cause its subsidiary, General Instrument (Puerto Rico), Inc. ("GI Puerto Rico"),
to continue to sponsor the General Instrument (Puerto Rico), Inc. Savings Plan
(the "Puerto Rico Plan").
3.04. General Instrument Corporation Savings Plan. The active
participation in the General Instrument Corporation Savings Plan (the "GI
Savings Plan") by persons other than the Active Employees of the GS Group ceased
to be effective as of June 30, 1997. In addition, as of June 30, 1997, all
members of the NextLevel Group ceased to be sponsors of the GI Savings Plan and
the members of the GS Group became the only sponsors of the GI Savings Plan.
3.05. Establishment of NextLevel Systems Defined Contribution Plan.
(a) NextLevel Systems Plan. NextLevel Systems has established or
made available, effective as of July 1, 1997, a defined contribution plan
for the benefit of the Active Employees of the NextLevel Systems Group
(the "NextLevel Systems DC Plan").
(b) Transfer of Account Balances to NextLevel Systems DC Plans. As
promptly as practical after the NextLevel Systems Distribution Date, GS
shall cause the trustee of the GI Savings Plan to transfer to the trustee
of the NextLevel Systems DC Plan, the account balances of each Active
Employee of the NextLevel Systems Group and each Former Employee of the
NextLevel Systems Group with respect to whom the GI Savings Plan maintains
an account as of the close of business on the NextLevel Systems
Distribution Date. Such transfers shall be equal to the value of the
transferred account balances as of the close of business on the day
preceding the date of transfer and shall be in cash, except that the
NextLevel Systems DC Plan will accept the following: (i) GS Common Stock
for the GS Common Stock fund portion of such account balances (together
with any and all of the shares of the common stock of NextLevel Systems
and CommScope distributed in connection with the Distributions); and (ii)
amounts credited to the GI Savings Plan which are held in mutual funds
which are also investment media in the NextLevel Systems DC Plan.
3.06. Transfer of Employer Stock. Each of the sponsors of the GI Savings
Plan, the CommScope DC Plan, the NextLevel Systems DC Plan and the Puerto Rico
Plan shall cause their respective plans (i) to permit the participants therein
to sell from the GS Common Stock Fund portion of the plan the shares of Common
Stock of the two entities that do not sponsor the plan immediately after the
NextLevel Systems Distribution Date, or in the case of the Puerto Rico Plan, are
not the parent corporation of such plan's sponsor, immediately after the
NextLevel Systems Distribution Date and (ii) not to permit the future investment
in the shares of Common Stock of any entity that does not sponsor the plan, or
in the case of the Puerto Rico Plan, is not the parent corporation of such
plan's sponsor (except for investments in the stock of such entity indirectly
through mutual funds or other collective investment vehicles with respect to
which participants have no control over the individual investments thereof).
SECTION 4. Pension Matters Outside the United States. With respect to the
business and operations of each Group in jurisdictions outside the United
States, each of the parties hereto shall (and, as applicable, shall cause each
other member of its Group over which it has direct or indirect legal or
effective control to) assume or retain, as the case may be, any and all pension
liabilities and attendant plans and their assets related to its Active Employees
and Former Employees.
SECTION 5. Executive Compensation.
5.01. GI Supplemental Executive Retirement Plan. None of the Active
Employees of the NextLevel Group have accrued any benefits under the GI
Supplemental Executive Retirement Plan (the "SERP") from and after June 30,
1997. As of the NextLevel Systems Distribution Date, NextLevel Systems shall
assume all liabilities under the SERP in respect of the Active Employees and
Former Employees of the NextLevel Group.
5.02. GI Voluntary Deferred Compensation Plan. The participation of the
Active Employees and Former Employees of the NextLevel Systems Group and the
CommScope Group in the GI Voluntary Deferred Compensation Plan (the "Deferred
Compensation Plan") shall cease as of the NextLevel Systems Distribution Date.
As of the NextLevel Systems Distribution Date, NextLevel Systems and CommScope
shall assume the liability for the accounts of their respective Active Employees
and Former Employees in the Deferred Compensation Plan. GS shall continue to
sponsor the Deferred Compensation Plan and shall retain all other liabilities
under the Deferred Compensation Plan including the liability for the accounts of
its Active Employees and Former Employees in the Deferred Compensation Plan. The
total of each account of each
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Active Employee or Former Employee of the NextLevel Systems Group and the
CommScope Group in the Deferred Compensation Plan as of the NextLevel Systems
Distribution Date shall become the opening balance of such Active Employee's or
Former Employee's account in a nonqualified deferred compensation plan
established, as of the NextLevel Systems Distribution Date, by NextLevel Systems
(the "NextLevel Systems Deferred Compensation Plan") or CommScope (the
"CommScope Deferred Compensation Plan"), as the case may be. As promptly as
practical after the NextLevel Systems Distribution Date, assets having a fair
market value as of the date of transfer equal to the transferred account
balances as of such date shall be transferred to a successor trust established
by NextLevel Systems in connection with the NextLevel Systems Deferred
Compensation Plan or to a successor trust established by CommScope in connection
with the CommScope Deferred Compensation Plan, as the case may be. Such
transferred assets shall be in cash or such other property as may be agreed
between GS and NextLevel Systems and between GS and CommScope.
5.03. Options. NextLevel Systems and CommScope have established,
respectively, the NextLevel Systems 1997 Long-Term Incentive Plan (the
"NextLevel Systems Incentive Plan") and the CommScope 1997 Long-Term Incentive
Plan (the "CommScope Incentive Plan"). Effective as of the NextLevel Systems
Distribution Date, all outstanding options in respect of GI Common Stock held
immediately prior to the NextLevel Systems Distribution (the "Current Options"):
(i)(A) by Active Employees and Former Employees (except as otherwise provided
herein) of either the NextLevel Group or the CommScope Group and (B) current
directors of GI immediately prior to the NextLevel Systems Distribution will be
replaced with substitute options in respect of NextLevel Systems Common Stock or
CommScope Common Stock, as the case may be (the "Substitute Options"), issued
under either the NextLevel Systems Incentive Plan or the CommScope Incentive
Plan; and (ii) by one Former Employee (Xxxxxx X. Xxxxxxx) and certain retired
directors (Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxx, Xxxx X.
Xxxxx and Xxxxxx X. Xxxxxxx) shall be adjusted so that, after the NextLevel
Systems Distribution, in addition to options held in respect of GS Common Stock
("GS Options"), such persons will also hold replacement options in respect of
NextLevel Systems Common Stock and CommScope Common Stock ("Spin-off Options").
The number of shares with respect to which the Spin-off Options shall be granted
shall be the number of shares of NextLevel Systems Common Stock and CommScope
Common Stock that the holder of the Current Options would have received in the
NextLevel Systems Distribution if he were a holder on the NextLevel Systems
Distribution Date of that number of shares of GI Common Stock covered by the
Current Option. Substitute Options, GS Options and Spin-off Options shall be
designed to preserve the economic value of the related Current Options, and the
vesting and expiration dates and other terms of the related awards will remain
in effect under the Substitute Options, GS Options and Spin-off Options, as
applicable. Effective as of the NextLevel Systems Distribution Date, all
outstanding options in respect of GS Common Stock held by Active Employees of
the GS Group as of the NextLevel Systems Distribution Date will be adjusted as
necessary to reflect the NextLevel Systems Distribution. The number of shares
covered by the Substitute Options, GS Options, and Spin-off Options, and the
exercise price thereof, shall be determined by a committee consisting of the
chief executive officers of GS, NextLevel Systems and CommScope.
5.04. Stock Appreciation Rights. Prior to the NextLevel Systems
Distribution Date, certain persons held stock appreciation right ("SAR")
agreements ("SAR Agreements") with respect to GI Common Stock. Effective as of
the NextLevel Systems Distribution Date, all outstanding SAR Agreements shall be
adjusted so that, after the NextLevel Systems Distribution, in addition to a SAR
held in respect of GS Common Stock ("GS SAR"), such persons will also hold a SAR
in respect of NextLevel Systems Common Stock and CommScope Common Stock
("Spin-off SARs "). The number of reference shares with respect to which each
Spin-Off SAR shall be granted shall be the number of shares of NextLevel Systems
Common Stock and CommScope Common Stock that the holder of the SAR would have
received in the NextLevel Systems Distribution if he were a holder on the
NextLevel Systems Distribution Date of that number of shares of GI Common Stock
covered by the SAR. A Spin-off SAR shall be designed to preserve the economic
value of the related SAR, and the other terms of the related SAR will remain in
effect under the Spin-off SAR, as applicable. The number of reference shares
covered by each Spin-off SAR shall be determined by a committee consisting of
the chief executive officers of GS, NextLevel Systems and CommScope.
5.05. Employment and Other Agreements. CommScope shall retain or assume,
as the case may be, any and all contractual obligations to Xx. Xxxxxxx with
respect to his employment agreement. GS shall have no further obligation to Xx.
Xxxxxxx with respect to his employment agreement.
SECTION 6. Welfare Benefits.
6.01. GS Salaried Welfare Plans. Effective on the NextLevel Systems
Distribution Date, GS shall serve as the sole sponsor of the GI Salaried Welfare
Plans from and after the NextLevel Systems Distribution Date.
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6.02. Allocation and Discharge of Welfare Plan Liabilities. NextLevel
Systems shall retain or assume, as the case may be, and discharge all welfare
plan liabilities with respect to Active Employees and Former Employees of the
NextLevel Systems Group and their dependents. CommScope shall retain or assume,
as the case may be, and discharge all welfare plan liabilities with respect to
Active Employees and Former Employees of the CommScope Group and their
dependents. GS shall retain and discharge all other welfare plan liabilities
which remain after allocation of liabilities to CommScope and NextLevel Systems
under the two immediately preceding sentences, including, without limitation,
all such liabilities relating to the Active Employees and Former Employees of
the GS Group and their dependents.
SECTION 7. General.
7.01. Post-Distribution Administration of Plans. The parties hereto agree
to administer all plans consistently herewith, and to the extent necessary to
amend their respective employee benefit plans accordingly.
7.02. Cost and Expenses. Each party shall bear all costs and expenses,
including but not limited to legal and actuarial fees, incurred in the design,
drafting and implementation of any and all plans and compensation structures
which it establishes or creates and the amendment of its existing plans or
compensation structures.
SECTION 8. Miscellaneous.
8.01. Complete Agreement; Construction. This Agreement and the
Distribution Agreement shall constitute the entire agreement between the parties
with respect to the subject matter hereof and shall supersede all previous
negotiations, commitments and writings with respect to such subject matter.
Notwithstanding any other provisions in this Agreement or the Distribution
Agreement to the contrary, in the event and to the extent that there shall be a
conflict between the provisions of this Agreement and the provisions of the
Distribution Agreement or any other Ancillary Agreement, this Agreement shall
control.
8.02. Other Ancillary Agreements. This Agreement is not intended to
address, and should not be interpreted to address, the matters specifically and
expressly covered by any of the other Ancillary Agreements.
8.03. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other parties.
8.04. Survival of Agreements. Except as otherwise expressly provided
herein, all covenants and agreements of the parties contained in this Agreement
shall survive the NextLevel Systems Distribution Date.
8.05. Notices. All notices and other communications to a party hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to such party (and
will be deemed given on the date on which the notice is received by such party)
at the address for such party set forth below (or at such other address for the
party as the party shall, from time to time, specify by like notice to the other
parties):
If to GS, at: General Semiconductor, Inc.
00 Xxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: General Counsel
If to NextLevel Systems, at: NextLevel Systems, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
If to CommScope, at: CommScope, Inc.
0000 Xxxxxx-Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: General Counsel
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8.06. Waivers. The failure of any party hereto to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
8.07. Amendments. This Agreement may not be modified or amended except by
an agreement in writing signed by the parties hereto.
8.08. Assignment. This Agreement shall be assignable in whole in
connection with a merger or consolidation or the sale of all or substantially
all the assets of a party hereto so long as the resulting, surviving or
transferee entity assumes all the obligations of the relevant party hereto by
operation of law or pursuant to an agreement in form and substance reasonably
satisfactory to the other parties to this Agreement. Otherwise, this Agreement
shall not be assignable, in whole or in part, directly or indirectly, by any
party hereto without the prior written consent of the others, and any attempt to
assign any rights or obligations arising under this Agreement without such
consent shall be void.
8.09. Successors and Assigns. The provisions of this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective permitted successors and permitted assigns.
8.10. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and the members of their respective Groups and
Affiliates, after giving effect to the Distributions, and should not be deemed
to confer upon third parties any remedy, claim, liability, right of
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
8.11. Attorney Fees. A party in breach of this Agreement shall, on demand,
indemnify and hold harmless the other parties hereto for and against all
out-of-pocket expenses, including, without limitation, reasonable legal fees,
incurred by such other party by reason of the enforcement and protection of its
rights under this Agreement. The payment of such expenses is in addition to any
other relief to which such other party may be entitled hereunder or otherwise.
8.12. Title and Headings. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
8.13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREUNDER. WITHOUT LIMITING THE
PROVISIONS OF SECTIONS 8.14 AND 8.15 HEREOF, EACH OF THE PARTIES IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF (A) THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK AND (B) IN THE CIRCUMSTANCE SET FORTH IN
THE NEXT SENTENCE, THE SUPREME COURT OF THE STATE OF NEW YORK, FOR THE PURPOSES
OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR OF ANY
ANCILLARY AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH OF
THE PARTIES AGREES TO COMMENCE ANY ACTION, SUIT OR PROCEEDING RELATING HERETO
ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
OR, IF SUCH SUIT, ACTION OR OTHER PROCEEDING MAY NOT BE BROUGHT IN SUCH COURT
FOR JURISDICTIONAL REASONS, IN THE SUPREME COURT OF THE STATE OF NEW YORK, NEW
YORK COUNTY, AND IN NO OTHER FORUM. EACH OF THE PARTIES FURTHER AGREES THAT
SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO
SUCH PARTY'S RESPECTIVE ADDRESS SET FORTH ABOVE SHALL BE EFFECTIVE SERVICE OF
PROCESS FOR ANY ACTION, SUIT OR PROCEEDING IN THE FORUM PROVIDED FOR HEREIN WITH
RESPECT TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION IN THIS
SECTION. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT
OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN (I) THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, OR (II) IN THE
CIRCUMSTANCES SET FORTH IN THE SECOND SENTENCE HEREOF, THE SUPREME COURT OF THE
STATE OF NEW YORK, AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
8.14. Mediation. In the event of a controversy, dispute or claim arising
out of, in connection with, or in relation to the interpretation, performance,
nonperformance, validity or breach of this Agreement or otherwise arising out
of, or in any
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way related to this Agreement or any transaction contemplated hereby or thereby,
including, without limitation, any claim based on contract, tort, statute or
constitution (collectively, "Agreement Disputes"), the general counsels (or
other chief legal officers) of the relevant parties shall negotiate in good
faith for a reasonable period of time to settle such Agreement Dispute.
8.15. Arbitration. If after the reasonable period of time provided for in
Section 8.14, the relevant general counsels (or other chief legal officers) are
unable to settle an Agreement Dispute, such Agreement Dispute shall be settled
by arbitration administered by the American Arbitration Association in
accordance with its applicable Rules for Commercial Arbitration and judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Any such arbitration shall be commenced and all the
proceedings thereof conducted in New York City. If any such arbitration requires
the consent of a non-party to this Agreement to submit to arbitration, the party
initiating the arbitration shall use reasonable efforts to procure such consent.
If such consent cannot be procured, the initiating party shall nevertheless be
bound to proceed against all other parties herein solely by arbitration pursuant
to this Section 8.15, and shall (unless otherwise agreed by all parties herein
who may be affected by such Agreement Dispute) be bound by Section 8.13 with
respect to claims arising out of any Agreement Disputes against a non-party to
this Agreement which is amenable to, or consents to, jurisdiction in the forum
set forth in Section 8.13.
8.16. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions,
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
8.17. Subsidiaries. Each of the parties hereto shall cause to be
performed, and hereby guarantee the performance of, all actions, agreements and
obligations set forth herein to be performed by any Subsidiary of such party
which is contemplated to be a Subsidiary of such party on and after the
NextLevel Systems Distribution Date.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GENERAL SEMICONDUCTOR, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, CEO & President
NEXTLEVEL SYSTEMS, INC.
By: /s/ Xxxxx X. Zar
-----------------------------
Name: Xxxxx X. Zar
Title: Vice President and General Counsel
COMMSCOPE, INC.
By: /s/ Xxxxx X. Xxxxx, XX
-----------------------------
Name: Xxxxx X. Xxxxx, XX
Title: Secretary
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