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Exhibit 10(c)
CONFORMED COPY
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POST-CLOSING COVENANTS AGREEMENT
dated as of December 6, 1996,
among
ROCKWELL INTERNATIONAL CORPORATION,
THE BOEING COMPANY
BOEING NA, INC.
and
NEW ROCKWELL INTERNATIONAL CORPORATION
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
1.1. Definitions ......................................... 2
ARTICLE II
INDEMNIFICATION
2.1. Indemnification by Newco ........................... 3
2.2. Indemnification by the Company ..................... 6
2.3. Procedures Relating to Indemnification ............. 7
2.4. Certain Limitations ................................ 12
2.5. Limitation on Newco's Indemnification
Obligation under Section 2.1(a)(iv) ................ 13
2.6. Exclusivity of Tax Allocation Agreement ............ 14
ARTICLE III
OTHER AGREEMENTS
3.1. Transfer Taxes ..................................... 15
3.2. Conduct of Environmental Insurance Coverage
Claims ......................................... 15
3.3. Agreements with Respect to Acquiror Common
Stock Received by Newco Savings Plans ........... 17
3.4. Transitional Arrangements .......................... 18
3.5. Insurance .......................................... 18
3.6. DOE Contracts ...................................... 19
3.7. Reorganization Expenses ............................ 19
3.8. Conduct of Health Care Claims Audit ................ 19
3.9. Guaranty of Acquiror ............................... 21
3.10. Payments Adjustments to Contribution ............... 21
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ARTICLE IV
MISCELLANEOUS AND GENERAL
4.1. Modification or Amendment .......................... 22
4.2. Waiver; Remedies ................................... 22
4.3. Counterparts ....................................... 22
4.4. Governing Law ...................................... 22
4.5. Notices ............................................ 22
4.6. Entire Agreement ................................... 23
4.7. Certain Obligations ................................ 23
4.8. Assignment ......................................... 23
4.9. Captions ............................................ 24
4.10. Severability ....................................... 24
4.11. No Third Party Beneficiaries ....................... 24
4.12. Consent to Jurisdiction ............................ 24
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POST-CLOSING COVENANTS AGREEMENT dated as of December 6, 1996 (this
"Agreement"), among ROCKWELL INTERNATIONAL CORPORATION, a Delaware corporation
(the "Company"), THE BOEING COMPANY, a Delaware corporation ("Acquiror"),
BOEING NA, INC., a Delaware corporation and a wholly-owned subsidiary of
Acquiror ("Sub"), and NEW ROCKWELL INTERNATIONAL CORPORATION, a Delaware
corporation ("Newco").
W I T N E S S E T H :
WHEREAS, the Company, Acquiror and Sub have entered into an Agreement
and Plan of Merger dated as of July 31, 1996 (the "Merger Agreement"),
providing for the Merger (as defined in the Merger Agreement) of Sub with and
into the Company;
WHEREAS, the Board of Directors of the Company has approved an
agreement and plan of distribution in the form attached as Annex A to the
Merger Agreement (the "Distribution Agreement"), which will be entered into
prior to the Effective Time (as defined in the Merger Agreement), pursuant to
which (a) all the assets of the Company, other than the Retained Assets (as
defined in the Distribution Agreement), will be contributed to Newco and/or to
one or more of the Operating Subsidiaries (as defined in the Distribution
Agreement) and all of the liabilities of the Company, other than the Retained
Liabilities (as defined in the Distribution Agreement), will be assumed by
Newco and/or by one or more of the Operating Subsidiaries, all as provided in
the Distribution Agreement (the "Contribution"), and (b) all of the issued and
outstanding shares of Common Stock, par value $1.00 per share, of Newco ("Newco
Common Stock") and Class A Common Stock, par value $1.00 per share, of Newco
("Newco Class A Common Stock"), in each case with the associated Rights, will
be distributed on a pro rata basis to the Company's stockholders as provided in
the Distribution Agreement (the "Distribution");
WHEREAS, the execution and delivery of this Agreement by the parties
hereto is a condition to the obligations of the parties to the Merger Agreement
to consummate the Merger;
WHEREAS, the execution and delivery of this Agreement by the parties
hereto is a condition to the
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obligations of the parties to the Distribution Agreement to
consummate the Distribution; and
WHEREAS, the parties to this Agreement have determined that it is
necessary and desirable to set forth certain agreements that will govern
certain matters that may arise following the Contribution, the Distribution and
the Merger.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings assigned to such terms in the
Merger Agreement or the Distribution Agreement, as the case may be. As used in
this Agreement, the following terms shall have the following respective
meanings:
"Acquiror Indemnitees" shall mean Acquiror, each Affiliate of
Acquiror, including any of its direct or indirect Subsidiaries (including,
after the Effective Time, the Retained Companies), and each of their respective
Representatives and each of the heirs, executors, successors and assigns of any
of the foregoing.
"Environmental Law" shall have the meaning ascribed thereto in the
Distribution Agreement.
"Environmental Proceeding" means any judicial, administrative or
regulatory proceeding (including, without limitation, any investigation or
inquiry) by or before any Governmental Entity that has been instituted or
commenced against an Acquiror Indemnitee by a party other than an Acquiror
Indemnitee based on a violation of, or to enforce compliance with, any
Environmental Law.
"Filings" shall mean the Registration Statements, the Proxy
Statement-Prospectus, the Form 8-A and any other document filed or required to
be filed with the SEC in connection with the transactions contemplated by the
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Reorganization Agreements, or any preliminary or final form thereof or any
amendment or supplement thereto.
"Indemnifiable Losses" shall mean, subject to Section 2.4, all
losses, liabilities, damages, deficiencies, obligations, fines, expenses,
claims, demands, actions, suits, proceedings, judgments or settlements, whether
or not resulting from Third Party Claims (as defined in Section 2.3(a)),
including interest and penalties recovered by a third party with respect
thereto and out-of-pocket expenses and reasonable attorneys' and accountants'
fees and expenses incurred in the investigation or defense of any of the same
or in asserting, preserving or enforcing any of the Indemnitee's rights
hereunder, suffered by an Indemnitee.
"Indemnitee" shall mean any of the Acquiror Indemnitees or the Newco
Indemnitees who or which may seek indemnification under this Agreement.
"Newco Indemnitees" shall mean Newco, each Affiliate of Newco,
including any of its direct or indirect Subsidiaries, and each of their
respective Representatives and each of the heirs, executors, successors and
assigns of any of the foregoing.
ARTICLE II
INDEMNIFICATION
2.1. Indemnification by Newco. (a) Except as otherwise specifically
provided in any Reorganization Agreement and subject to the provisions of this
Article II, Newco shall indemnify, defend and hold harmless the Acquiror
Indemnitees from and against, and pay or reimburse the Acquiror Indemnitees
for, all Indemnifiable Losses, as incurred:
(i) relating to or arising from the Contributed Assets or the
Assumed Liabilities, including without limitation the Special Liabilities
(including the failure by Newco or any member of the Newco Group to pay,
perform or otherwise discharge such Assumed Liabilities in accordance with
their terms), whether such Indemnifiable Losses relate to or arise from
events, occurrences, actions, omissions, facts or circumstances occurring,
existing or asserted before, at or after the Effective Time;
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(ii) arising from or based upon any untrue statement or alleged
untrue statement of a material fact contained in any of the Filings or in
the Consent Statement, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; but only in each case with respect to
information provided by the Company relating to the Newco Group or the
Company contained in or omitted from the Filings or the Consent Statement;
(iii) relating to or arising from the breach by any member of
the Newco Group of any agreement or covenant contained in a Reorganization
Agreement which does not by its express terms expire at the Effective Time
or which is not by its express terms required to be performed prior to the
Effective Time;
(iv) relating to or arising from any breach of or inaccuracy in
any representation or warranty of the Company contained in the Merger
Agreement;
(v) relating to or arising from any Preexisting Environmental
Condition relating to the Aerospace Business, the Defense Business or the
Additional Retained Facilities;
(vi) relating to or arising from any actual or alleged criminal
violation of any law, rule or regulation of any Governmental Entity by the
Company or any of its Subsidiaries or any director, officer, employee or
agent of the Company or any of its Subsidiaries ("Criminal Matters")
occurring or alleged to have occurred prior to the Time of Contribution;
(vii) relating to or arising from any breach of any covenant or
agreement of the Company contained in the Merger Agreement assumed by
Newco pursuant to the Distribution Agreement;
(viii) relating to or arising from any claim that the execution,
delivery or performance by the Company of each Reorganization Agreement to
which it is or will be a party or the consummation of the transactions
contemplated thereby results in a violation or breach of, or constitutes a
default or impermissible transfer under, or gives rise to any
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right of termination, first refusal or consent under or gives rise to any
right of amendment, cancellation or acceleration of any material benefit
under, any Designated Contract listed on Schedule 2.1(a)(viii);
(ix) relating to or arising from fines and penalties and
reasonable attorneys' and accountants' fees and expenses in connection
with any of the alleged safety violations or alleged improper storage
and/or disposal of hazardous waste claims referred to in item 5(a) of
Section 4.1(n) of the Company Disclosure Schedule pertaining to the
explosion at Santa Susana, California in 1994; or
(x) incurred in connection with the enforcement by the Acquiror
Indemnitees of their rights to be indemnified, defended and held harmless
under this Agreement.
(b) RAN Contract. The Retained Assets include a Contract (Contract
R1000) (the "RAN Contract") between Rockwell Australia Limited and the
Australian Submarine Corporation. Newco shall indemnify, defend and hold
harmless the Acquiror Indemnitees for 80% of any decrease in the profit before
tax realized by Rockwell Australia Limited on the RAN Contract below 40.0
million Australian dollars (A$40,000,000) as well as 80% of any loss in respect
of the RAN Contract. Likewise, the Company shall pay to Newco 80% of any
increase in the profit before tax realized by Rockwell Australia Limited on the
RAN Contract above 40.0 million Australian dollars (A$40,000,000). The
determination of profit before tax or loss for purposes of this Section 2.1(b)
shall be based upon the next quarterly Estimate at Completion ("EAC") for the
RAN Contract prepared after expiration of three (3) years from the Effective
Time. The determination of Rockwell Australia Limited's profit before tax or
loss shall be determined by the Company using the same accounting methods,
policies, practices, procedures, classifications, judgments, estimation
methodologies and accounting standards as were utilized in the preparation of
the Retained Business Audited Financial Statements. All payments made pursuant
to this Section 2.1(b) shall be computed on a tax-effected basis to take into
account the benefit of any reduction, or detriment of any increase, in Taxes
payable by Rockwell Australia Limited attributable to the decrease in the
profit before tax (including any loss) or increase in the profit before tax
realized by Rockwell Australia Limited below or above
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A$40,000,000. All determinations of the amount (and timing) of any such benefit
or detriment shall be determined using principles analogous to those contained
in Section 6.6 of the Tax Allocation Agreement, and all payments made pursuant
to this Section 2.1(b) shall be governed by Section 2.3 of this Agreement and
by Section 6.6(a) of the Tax Allocation Agreement. The obligations of Newco and
the Company to pay the amounts set forth in this Section 2.1(b) shall be
determined without regard to the acts or omissions of the Company or any
Subsidiary with respect to performance of the RAN Contract prior to, at or
after the Effective Time. The Company will provide Newco with copies of all
quarterly EAC's in respect of the RAN Contract and access to such books and
records (including but not limited to accountants' work papers) and personnel
familiar with the RAN Contract and the accounting therefor as Newco shall
reasonably request. To the extent Newco disputes the EAC, the designees of the
chief financial officers of Acquiror and Newco shall attempt a good faith
resolution of such dispute. To the extent not so resolved within 90 days
following Newco's receipt of the determination of such profit or loss, such
dispute will be referred for resolution to the chief financial officers of
Acquiror and Newco, and failing their resolution of such dispute within 90 days
after such referral, to the chief executive officers of Acquiror and Newco. To
the extent the dispute is not so resolved within 90 days following such
referral, Acquiror and Newco will submit such dispute to mediation using the
procedures of the Center for Public Resources, before commencing litigation to
resolve such dispute.
2.2. Indemnification by the Company. Except as otherwise specifically
provided in any Reorganization Agreement and subject to the provisions of this
Article II, the Company shall indemnify, defend and hold harmless the Newco
Indemnitees from and against, and pay or reimburse the Newco Indemnitees for,
all Indemnifiable Losses, as incurred:
(i) relating to or arising from the Retained Assets or the
Retained Liabilities (including the failure by the Company or any member
of the Company Group to pay, perform or otherwise discharge such Retained
Liabilities in accordance with their terms), whether such Indemnifiable
Losses relate to or arise from events, occurrences, actions, omissions,
facts or circumstances occurring, existing or asserted before, at or after
the Effective Time;
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(ii) arising from or based upon any untrue statement or alleged
untrue statement of a material fact contained in any of the Filings or in
the Consent Statement, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; but only in each case with respect to
information provided by Acquiror relating to Acquiror or any of its
Subsidiaries other than the Company Group contained in or omitted from the
Filings or the Consent Statement;
(iii) relating to or arising from the breach by Acquiror or any
member of the Company Group of any agreement or covenant contained in a
Reorganization Agreement (other than, in the case of the Company Group, an
agreement or covenant contained in the Merger Agreement assumed by Newco
pursuant to the Distribution Agreement) which does not by its express
terms expire at the Effective Time or which is not by its express terms
required to be performed prior to the Effective Time; or
(iv) incurred in connection with the enforcement by the Newco
Indemnitees of their rights to be indemnified, defended and held harmless
under this Agreement.
2.3. Procedures Relating to Indemnification. (a) In order for an
Indemnitee to be entitled to any indemnification provided for under this
Agreement in respect of, arising out of or involving a claim made by any Person
who is not an Indemnitee against the Indemnitee (a "Third Party Claim"), such
Indemnitee must notify the party who may become obligated to provide
indemnification hereunder (the "indemnifying party") in writing, and in
reasonable detail, of the Third Party Claim reasonably promptly, and in any
event within 20 business days after receipt by such Indemnitee of written
notice of the Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder except to
the extent the indemnifying party shall have been actually prejudiced as a
result of such failure (except that the indemnifying party shall not be liable
for any expenses incurred during the period in which the Indemnitee failed to
give such notice); and provided further, however, that with respect to any
matter for which Newco is the indemnifying
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party, Newco shall be deemed to have received notice with respect to all
matters by or against any member of the Company Group that were concluded or
initiated prior to, or otherwise pending at, the Time of Contribution. After
any required notification (if applicable), the Indemnitee shall deliver to the
indemnifying party, promptly after the Indemnitee's receipt thereof, copies of
all notices and documents (including court papers) received by the Indemnitee
relating to the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee, the
indemnifying party will be entitled to participate in the defense thereof and,
if it so chooses, to assume the defense thereof (at the expense of the
indemnifying party) with counsel selected by the indemnifying party and
reasonably satisfactory to the Indemnitee; provided, however, that in case of a
claim made by any person against an Indemnitee relating to a Special Liability
(a "Special Liability Claim"), Newco (at Newco's expense) shall assume the
defense thereof with counsel selected by Newco. Should the indemnifying party
so elect (or, in the case of a Special Liability Claim, be obligated) to assume
the defense of a Third Party Claim, the indemnifying party will not be liable
to the Indemnitee for any legal expenses subsequently incurred (or, in the case
of a Special Liability Claim, incurred) by the Indemnitee in connection with
the defense thereof (unless, in case of a Special Liability Claim, Newco
breaches its obligation to assume the defense thereof). If the indemnifying
party assumes (or, in the case of a Special Liability Claim, is obligated to
assume) such defense, the Indemnitee shall have the right to participate in the
defense thereof and to employ counsel, at its own expense, separate from the
counsel employed by the indemnifying party, it being understood that the
indemnifying party shall control such defense. The indemnifying party shall be
liable for the fees and expenses of counsel employed by the Indemnitee for any
period during which the indemnifying party has not assumed (or, in the case of
a Special Liability Claim, is in breach of its obligation to assume) the
defense thereof (other than during any period in which the Indemnitee shall
have failed to give notice of the Third Party Claim as provided above). If the
indemnifying party chooses (or, in the case of a Special Liability Claim, is
obligated) to defend or prosecute a Third Party Claim, all the parties hereto
shall cooperate in the defense or prosecution thereof, which cooperation shall
include the retention in accordance with the Distribution Agreement and
(upon the
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indemnifying party's request) the provision to the indemnifying party of
records and information which are reasonably relevant to such Third Party
Claim, and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder. If
the indemnifying party chooses (or, in the case of a Special Liability Claim,
is obligated) to defend or prosecute any Third Party Claim, the Indemnitee will
agree to any settlement, compromise or discharge of such Third Party Claim
which the indemnifying party may recommend and which by its terms obligates the
indemnifying party to pay the full amount of liability in connection with such
Third Party Claim; provided, however, that, without the Indemnitee's consent,
the indemnifying party shall not consent to entry of any judgment or enter into
any settlement (w) that provides for injunctive or other nonmonetary relief
affecting the Indemnitee, (x) that does not include as an unconditional term
thereof the giving by each claimant or plaintiff to such Indemnitee of a
release from all liability with respect to such claim, (y) in the case of a
Criminal Matter or (z) that involves an allegation of conduct which could
result in the suspension or debarment of the Indemnitee from contracting with
the United States Government. Whether or not the indemnifying party shall have
assumed the defense of a Third Party Claim, the Indemnitee shall not admit any
liability with respect to, or settle, compromise or discharge, such Third Party
Claim without the indemnifying party's prior written consent (which consent
shall not be unreasonably withheld). Notwithstanding the foregoing, Newco shall
be solely responsible for, and shall pay directly, the fees and expenses of its
counsel in connection with any Special Liability Claim and shall reimburse the
Company on a monthly basis for any support or other services provided at
Newco's request in respect of any Special Liability Claim in an amount equal to
the Company's costs thereof determined in accordance with the cost accounting
standards applicable to Government Contracts.
(c) In order for an Indemnitee to be entitled to any indemnification
provided for under this Agreement in respect of a claim that does not involve a
Third Party Claim, the Indemnitee shall deliver notice of such claim with
reasonable promptness to the indemnifying party. The failure by any Indemnitee
so to notify the indemnifying party shall not relieve the indemnifying party
from any liability which it may have to such Indemnitee under this Agreement,
except to the extent that the indemnifying party
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shall have been actually prejudiced by such failure. Any notice pursuant to
this Section 2.3(c) shall contain a statement, in prominent and conspicuous
type, that if the indemnifying party does not dispute its liability to the
Indemnitee with respect to the claim made in such notice by notice to the
Indemnitee prior to the expiration of a 30-calendar-day period following the
indemnifying party's receipt of the second notice of such claim, the claim
shall be conclusively deemed a liability of the indemnifying party. If the
Indemnitee has provided the indemnifying party two such notices not less than
30 days apart and the indemnifying party does not notify the Indemnitee prior
to the expiration of a 30-calendar-day period following its receipt of the
second such notice that the indemnifying party disputes its liability to the
Indemnitee under this Agreement, such claim specified by the Indemnitee in such
notice shall be conclusively deemed a liability of the indemnifying party under
this Agreement and the indemnifying party shall pay the amount of such
liability to the Indemnitee on demand or, in the case of any notice in which
the amount of the claim (or any portion thereof) is estimated, on such later
date when the amount of such claim (or such portion thereof) becomes finally
determined. If the indemnifying party has timely disputed its liability with
respect to such claim, as provided above, the indemnifying party and the
Indemnitee shall proceed in good faith to negotiate a resolution of such
dispute and, if not resolved through negotiations, such dispute shall be
resolved by litigation in an appropriate court of competent jurisdiction.
(d) Unless the Company or the appropriate Retained Subsidiary shall
have made a good faith determination that a particular Indemnifiable Loss
relating to or arising from a Preexisting Environmental Condition is not
eligible for treatment as an allowable overhead cost or other allowable cost
(in which case, the Company or the appropriate Retained Subsidiary may request
Newco to indemnify, defend and hold it harmless without complying with the
following additional procedures), Newco shall have no obligation to indemnify,
defend or hold harmless any Acquiror Indemnitee hereunder in respect of an
Indemnifiable Loss arising from or relating to a Preexisting Environmental
Condition unless (i) the Company or the appropriate Retained Subsidiary has
submitted a claim for such Indemnifiable Loss as an allowable overhead cost or
other allowable cost in connection with relevant Government Contracts and used
its reasonable best efforts to obtain a favorable determination
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of such claim, (ii) such claim has been disallowed based on an act or omission
by the Company or any of its Subsidiaries prior to the Effective Time,
(iii) the Company or the appropriate Retained Subsidiary has given Newco timely
notice of such disallowance and (iv) Newco has been permitted, at its own
expense, to direct and control the appeal of such disallowance until finally
determined pursuant to one or more final and nonappealable orders, decrees or
judgments or by one or more settlement agreements approved by Newco and the
Company, such approval not to be unreasonably withheld by the Company.
Notwithstanding anything in this Agreement to the contrary,
Indemnifiable Losses relating to or arising from Preexisting Environmental
Conditions shall be limited to costs and expenses of containing, removing,
responding to, remediating, cleaning-up and abating Preexisting Environmental
Conditions, natural resource damage claims, penalties and fines, and any
administrative oversight costs incurred by any Governmental Entity actually
paid by an Acquiror Indemnitee following the Time of Contribution relating to
or arising from the presence, use, treatment, Release or threatened Release of
any Hazardous Substance on or originating from a facility of the Retained
Business prior to the Time of Contribution, provided that any such containment,
removal, response, remediation, clean-up or abatement shall be (i) required by
an enforcement order or decree entered by a Governmental Entity as a result of
an Environmental Proceeding; (ii) necessary to comply with an Environmental Law
in response to an Environmental Proceeding or threatened Environmental
Proceeding; or (iii) in response to a condition which in the Company's
reasonable judgment is likely to result in an Environmental Proceeding if no
responsive action is taken. The costs and expenses for which Newco shall be
obligated to indemnify, defend and hold harmless the Acquiror Indemnitees shall
be limited to those costs and expenses which are necessary to achieve
compliance with the minimum requirements of Environmental Law based upon a
reasonable low cost approach under the circumstances. Without prejudice to the
rights and obligations of the parties under Section 2.3(a), (b) or (c), the
Company shall provide Newco with all information reasonably requested by Newco
to allow Newco to evaluate all proposed responsive actions in connection with
any Preexisting Environmental Condition. Newco shall have no obligation to
indemnify, defend or hold harmless an Acquiror Indemnitee in respect of any
Preexisting Environmental Condition for (i) any cost or expense incurred in
connection with the normal, day-to-day
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operation, including maintenance, of the facilities of the Retained Business
(except for groundwater monitoring costs or other maintenance expenses related
to any investigation or remediation), and including any discharges pursuant to,
and any closure or post-closure obligations under any permit or authorization
granted by a Governmental Entity unless such post-closure obligation is related
to or gives rise to an obligation to investigate, monitor or remediate under
Environmental Law, or (ii) any cost or expense relating to or arising from any
change in use of a facility of the Retained Business or acts or omissions of
any Acquiror Indemnitee or other person who is not a member of the Newco Group
after the Time of Contribution which increase the scope of any required
containment, removal, response, remediation, clean-up or abatement or otherwise
increase the liability of Newco hereunder.
(e) Unless the Company or the appropriate Retained Subsidiary shall
have made a good faith determination that a particular Indemnifiable Loss
relating to or arising from a Criminal Matter is not eligible for treatment as
an allowable overhead cost or other allowable cost (in which case, the Company
or the appropriate Retained Subsidiary may request Newco to indemnify, defend
and hold it harmless without complying with the following additional
procedures), Newco shall have no obligation to indemnify, defend or hold
harmless any Acquiror Indemnitee hereunder in respect of an Indemnifiable Loss
arising from or relating to a Criminal Matter unless (i) the Company or the
appropriate Retained Subsidiary has submitted a claim for such Indemnifiable
Loss as an allowable overhead cost or other allowable cost in connection with
relevant Government Contracts and used its reasonable best efforts to obtain a
favorable determination of such claim, (ii) such claim has been disallowed
based on an act or omission by the Company or its Subsidiaries prior to the
Effective Time, (iii) the Company or the appropriate Retained Subsidiary has
given Newco prompt notice of such disallowance and (iv) Newco has been
permitted, at its own expense, to direct and control the appeal of such
disallowance until finally determined pursuant to one or more final and
nonappealable orders, decrees or judgments or by one or more settlement
agreements approved by Newco and the Company, such approval not to be
unreasonably withheld by the Company. Newco's obligation to indemnify Acquiror
Indemnitees for Criminal Matters pursuant to Section 2.1(a)(vi) shall be
limited to amounts paid for fines or penalties and reasonable attorneys' and
accountants' fees and expenses that are not allowable or
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that are not allowed as an overhead cost or other allowable cost in connection
with a Government Contract. Any Criminal Matter for which indemnification may
be sought pursuant to Section 2.1(a)(vi) shall be a Third Party Claim for
purposes of this Agreement.
2.4. Certain Limitations. (a) The amount of any Indemnifiable Losses
or other liability for which indemnification is provided under this Agreement
shall be net of any amounts actually recovered by the Indemnitee from third
parties (including, without limitation, amounts actually recovered under
insurance policies) with respect to such Indemnifiable Losses or other
liability. Any indemnifying party hereunder shall be subrogated to the rights
of the Indemnitee upon payment in full of the amount of the relevant
Indemnifiable Loss. An insurer who would otherwise be obligated to pay any
claim shall not be relieved of the responsibility with respect thereto or,
solely by virtue of the indemnification provisions hereof, have any subrogation
rights with respect thereto. If any Indemnitee recovers an amount from a third
party in respect of an Indemnifiable Loss for which indemnification is provided
in this Agreement after the full amount of such Indemnifiable Loss has been
paid by an indemnifying party or after an indemnifying party has made a partial
payment of such Indemnifiable Loss and the amount received from the third party
exceeds the remaining unpaid balance of such Indemnifiable Loss, then the
Indemnitee shall promptly remit to the indemnifying party the excess (if any)
of (A) the sum of the amount theretofore paid by the indemnifying party in
respect of such Indemnifiable Loss plus the amount received from the third
party in respect thereof, less (B) the full amount of such Indemnifiable Loss
or other liability.
(b) The amount of any Indemnifiable Losses or other Liability for
which indemnification is provided under this Agreement or any other amounts
payable or reimbursable by one party to another under this Agreement shall be
increased or decreased to take account of any net Tax (as defined in the Tax
Allocation Agreement) cost or any net Tax benefit in a manner analogous to that
described in Section 6.6 of the Tax Allocation Agreement.
2.5. Limitation on Newco's Indemnification Obligation under
Section 2.1(a)(iv). (a) Newco shall not have any liability under Section
2.1(a)(iv) unless the aggregate of all Indemnifiable Losses for which Newco
would, but for this Section 2.5, be liable under Section 2.1(a)(iv)
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exceeds on a cumulative pre-tax basis an amount equal to $20,000,000 (the
"Basket Amount"); provided, however, that (i) if Indemnifiable Losses for which
Newco would, but for this Section 2.5, be liable under Section 2.1(a)(iv) as a
result of the breach of or the inaccuracy in any representation or warranty
which arises from a particular state of facts or event exceed $5,000,000 on a
pre-tax basis, Newco shall be liable under Section 2.1(a)(iv) for the entire
amount of such Indemnifiable Losses, and such Indemnifiable Losses shall not be
taken into account in calculating whether Newco's cumulative liability under
Section 2.1(a)(iv) had exceeded the Basket Amount or the Threshold Amount (as
defined below), and (ii) if the aggregate of all Indemnifiable Losses for which
Newco would, but for this Section 2.5, be liable under Section 2.1(a)(iv)
exceeds on a cumulative pre-tax basis the Basket Amount, Newco's liability
under Section 2.1(a)(iv) shall be equal to $10,000,000 (the "Threshold Amount")
plus any Indemnifiable Losses under Section 2.1(a)(iv) in excess of
$20,000,000.
(b) Newco shall not have any liability under Section 2.1(a)(iv) with
respect to the breach of or inaccuracy in any representation or warranty which
arises from a particular state of facts or event if the Indemnifiable Losses
resulting therefrom are less than $250,000 on a pre-tax basis, and such
Indemnifiable Losses shall not be taken into account in calculating whether
Newco's cumulative liability under Section 2.1(a)(iv) had exceeded the Basket
Amount or the Threshold Amount.
(c) No Indemnifiable Losses actually paid by Newco pursuant to any
provision other than Section 2.1(a)(iv) and no Indemnifiable Losses relating
to or arising from a Preexisting Environmental Condition or a Criminal Matter
for which Newco is not yet obligated to provide indemnity pursuant to
Section 2.1(a)(v) or Section 2.1(a)(vi) shall be deemed to be an Indemnifiable
Loss relating to or arising from a breach of or inaccuracy in a representation
or warranty of the Company contained in the Merger Agreement for purposes of
determining whether the aggregate amount of Indemnifiable Losses relating to or
arising from breaches of or inaccuracies in such representations or warranties
exceeds the Basket Amount or the Threshold Amount. Newco shall not have any
liability under Section 2.1(a)(iv) with respect to the breach of or inaccuracy
in any representation or warranty unless notice of any such breach or inaccuracy
is given pursuant to Section 2.3 prior to the expiration of the survival period
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provided in the Merger Agreement for the relevant representation or warranty.
2.6 Exclusivity of Tax Allocation Agreement. Notwithstanding anything
in this Agreement to the contrary, the Tax Allocation Agreement shall be the
exclusive agreement among the parties with respect to all Tax matters,
including indemnification in respect of Tax matters.
ARTICLE III
OTHER AGREEMENTS
3.1. Transfer Taxes. Newco and Acquiror shall comply with
Section 2.2(h) of the Merger Agreement.
3.2. Conduct of Environmental Insurance Coverage Claims. (a) Pursuant
to the Distribution Agreement, the Company will retain as part of the Retained
Assets the Environmental Coverage Claims (as defined below) to the extent that
they have not been resolved prior to the time of Contribution. As used herein,
"Environmental Coverage Claims" shall mean all existing and future claims, as
the same may be amended from time to time, by the Company against any and all
insurance companies that have provided (or that the Company or Newco alleges
have provided) to the Company, its predecessors or its or their affiliates,
insurance coverage in respect of environmental matters as the same may relate
to the businesses of the Company, its predecessors or its or their affiliates
as now or previously owned or operated (including without limitation any
discontinued or divested operations, including Divested Businesses) at any time
prior to the Effective Time, including without limitation the claims asserted
in the action against Aetna Casualty et al. filed in the Superior Court of
California for Los Angeles County and any other claims that may be asserted by
or on behalf of the Company against any provider or alleged provider of
insurance coverage for such environmental matters for any period prior to the
Effective Time. The Company agrees to use diligent efforts to prosecute the
Environmental Coverage Claims in accordance with this Section 3.2 until the
same are finally determined pursuant to one or more final and nonappealable
orders, decrees or judgments by a court of competent jurisdiction or by one or
more settlement agreements approved by Newco in its sole discretion. The
Company agrees (i) that Newco and such legal counsel as Newco may
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from time to time designate shall have the exclusive right to control and to
direct the prosecution of all Environmental Coverage Claims (it being
understood and agreed that in connection with the prosecution or settlement of
any Environmental Coverage Claims, Newco may in its sole discretion agree on
behalf of the Company to surrender, cancel or otherwise limit any related
insurance policies or coverages thereunder in whole or in part or as to any
particular business, property, period or event), (ii) to make available such
personnel, records and other resources in its possession or reasonably
accessible to it as shall be reasonably required by Newco or its counsel to
support the prosecution of the Environmental Coverage Claims, and (iii) except
as may otherwise be required by law or judicial process, not to make any
admission in respect of the Environmental Coverage Claims or take any action in
respect thereof without the prior written consent of Newco. The Company shall
pay to Newco any and all amounts received by it in respect of the Environmental
Coverage Claims as and when the same are received, provided that the Company
shall be entitled to retain that portion of the amount, if any, received in
respect of the Environmental Coverage Claims as the Company shall be required
to pay and/or credit to the United States Government in accordance with the
agreement to be entered into between the Company and the appropriate United
States Government contracting officer referred to in Section 3.2(b).
(b) If, at the Time of Contribution, the Company has reached an
agreement with the appropriate government contracting officer on the amount
required to be paid to the United States Government in respect of the
Environmental Coverage Claims but such amount has not been paid and/or credited
in full by the Company, then Newco shall remit the unpaid balance to the
Company on or before the date that payment is required to be made and/or
credited by the Company to the United States Government. The Company agrees
that if, at the Time of Contribution, the Company has not entered into such an
agreement with the appropriate government contracting officer, Newco and such
legal counsel as Newco may from time to time designate shall have the exclusive
right to control and to direct the negotiation of such agreement. The Company
shall enter into any such agreement with the appropriate United States
Government contracting officer which Newco may recommend, provided that Newco
pays to the Company on or before the date that payment is required to be made
and/or credited by the Company to the United States Government an amount equal
to the excess, if
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any, of the amount that the Company is required to pay and/or credit to the
United States Government over the amount received by the Company after the
Effective Time in respect of the Environmental Coverage Claims that has not
previously been remitted to Newco.
(c) Newco shall be solely responsible for and shall pay directly the
fees and expenses (including legal fees and expenses) of pursuing the
Environmental Coverage Claims and shall reimburse the Company periodically for
any support or other services provided at Newco's request in respect of the
Environmental Coverage Claims in an amount equal to the Company's costs thereof
determined in accordance with cost accounting standards applicable to
Government Contracts.
(d) Taxes on amounts received and Tax benefits and Tax costs in
respect of amounts paid and/or credited with respect to the Environmental
Coverage Claims and the related agreement with the United States Government
shall be allocated between the Company and Newco in the manner set forth in
Section 5.5 of the Tax Allocation Agreement.
3.3. Agreements with Respect to Acquiror Common Stock Received by
Newco Savings Plans. (a) Acquiror and the Newco Savings Plan and any other
savings plan sponsored or maintained by Newco or any of its Affiliates (the
"Savings Plans") shall cooperate with each other in supplying such information
as may be necessary for any of such parties to complete and file any
information reporting forms presently or hereafter required by the SEC or any
commissioner or other authority administering the "blue sky" or securities laws
of any jurisdiction where the shares of Acquiror Common Stock received by the
Savings Plans in the Merger (the "Shares") are proposed to be sold which are
required to be filed as a condition to the availability of an exemption from
registration or qualification of an offer or sale of the Shares under the
Securities Act, or any such "blue sky" or securities laws.
(b) Until the earlier of two years from the Effective Time or the
sale by the Savings Plans of all Shares, Acquiror shall file in a timely manner
all reports contemplated by Rule 144 (c)(1) under the Securities Act as
satisfying the condition that adequate public information with respect to
Acquiror is available.
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(c) The provisions of this Section 3.3 shall not be applicable if
Newco or the Company has obtained a "No-Action" letter or other written advice
from the staff of the SEC that the Savings Plans may sell the Shares publicly
at any time after the Effective Time without limitation in terms of the volume
of Shares that may be sold, the manner in which the Shares may be sold and the
information that must be publicly available with respect to Acquiror in order
to permit such sale and without any requirement that the Savings Plans file any
notice of sale of Shares or intention to sell Shares with the SEC other than
any filings required pursuant to Section 13(d) of the Exchange Act in respect
of the beneficial ownership by the Savings Plans of Acquiror Common Stock.
Newco agrees to use its reasonable best efforts to obtain such "No-Action"
letter or other written advice.
3.4. Transitional Arrangements. Concurrently herewith Newco, the
Company and Acquiror will enter into an agreement with respect to certain
transitional arrangements (the "Transition Agreement") in conformity with the
Outline of Terms set forth as Schedule 3.4 and such other transitional
arrangements as shall be mutually agreed upon.
3.5. Insurance. (a) Except as otherwise specifically provided in any
Reorganization Agreement or the Transition Agreement, with respect to any loss,
liability or damage with respect to the Retained Assets arising out of events
occurring prior to the Time of Contribution (other than any loss, liability or
damage arising out of or relating to any Environmental Coverage Claims) for
which Newco or any of its Subsidiaries would be entitled to assert a claim for
recovery under any third-party "occurrence basis" policy of insurance
maintained prior to the Time of Contribution ("Occurrence Basis Insurance") in
accordance with the terms thereof, at the request of Acquiror, Newco will use
reasonable efforts in asserting, or to assist Acquiror in asserting, claims
under such Occurrence Basis Insurance with respect to such loss, liability or
damage; provided that (i) all of Newco's costs and expenses incurred in
connection with the foregoing are promptly paid by Acquiror, (ii) Newco and its
Subsidiaries may, at any time, without liability or obligation to Acquiror,
amend, buy-out, extinguish liability under or otherwise modify any Occurrence
Basis Insurance (and such claims shall be subject to any such amendments,
buy-outs, extinguishments and modifications) and (iii) such claims shall be
subject to (and recovery thereon shall be reduced by the amount of) any
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applicable deductibles, retentions, self-insurance provisions or any payment or
reimbursement obligations of Newco or any of its Subsidiaries or Affiliates in
respect thereof.
(b) Except as otherwise specifically provided in any Reorganization
Agreement or the Transition Agreement, with respect to any loss, liability or
damage with respect to the Contributed Assets arising out of events occurring
prior to the Time of Contribution (other than any loss, liability or damage
arising out of or relating to any Environmental Coverage Claims) for which the
Company or any of the Retained Subsidiaries would be entitled to assert a claim
for recovery under any Occurrence Basis Insurance in accordance with the terms
thereof, at the request of Newco, Acquiror will use reasonable efforts in
asserting, or to assist Newco in asserting, claims under such Occurrence Basis
Insurance with respect to such loss, liability or damage; provided that (i) all
of Acquiror's costs and expenses incurred in connection with the foregoing are
promptly paid by Newco, (ii) Acquiror and its Subsidiaries may, at any time,
without liability or obligation to Newco, amend, buy-out, extinguish liability
under or otherwise modify any Occurrence Basis Insurance (and such claims shall
be subject to any such amendments, buy-outs, extinguishments and modifications)
and (iii) such claims shall be subject to (and recovery thereon shall be
reduced by the amount of) any applicable deductibles, retentions,
self-insurance provisions or any payment or reimbursement obligations of
Acquiror or any of its Subsidiaries or Affiliates in respect thereof.
3.6. DOE Contracts. As soon as practicable following the Effective
Time, Newco and the Company shall take such actions as shall be consistent with
the advance agreements referred to in Section 9.1(e) of the Distribution
Agreement.
3.7. Reorganization Expenses. Except as otherwise expressly provided
in the Reorganization Agreements (including but not limited to the last
sentence of Section 2.2(b) of the Merger Agreement and Sections 2.2(h), 4.1(p),
4.2(j) and 5.13 of the Merger Agreement and Section 5.3 of the Distribution
Agreement), Acquiror and Newco (and not the Company) shall be responsible for
and agree to pay all reorganization expenses of the Company directly related
to the Contribution, the Distribution and the Merger in accordance with
Schedule 3.7
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hereto, provided that the Company may, prior to the Effective Time, pay any
such expenses that are otherwise the responsibility of Newco.
3.8. Conduct of Health Care Claims Audit. (a) Pursuant to the
Distribution Agreement, Newco will receive as part of the Contributed Assets
the Health Care Claims (as defined below). As used herein, "Health Care Claims"
shall mean all existing and future claims arising out of audits of health care
claims paid by the Company for any period prior to the Effective Time made by
the Company (or if after the Effective Time, Newco) against any and all health
care administrators ("Health Care Administrators") that have provided to the
Company, its predecessors or its or their affiliates, health care
administration services in respect of the employees of the Company, its
predecessors or its or their affiliates as now or previously owned or operated
(including without limitation any discontinued or divested operations,
including Divested Businesses) at any time prior to the Effective Time,
including, without limitation, the claims asserted in the pending audits of
Metropolitan Insurance Company for the years 1993-1994 and Value Rx Pharmacy
Program, Inc. for the years 1993-1995 and any other claims that may be asserted
by or on behalf of the Company (or if after the Effective Time, Newco) against
any Health Care Administrator for any period prior to the Effective Time. Newco
agrees to use diligent efforts to prosecute the Health Care Claims in
accordance with this Section 3.8 until the same are finally settled by Newco in
its sole discretion. The Company agrees (i) that Newco shall have the
exclusive right to control and to direct the audit of the Health Care
Administrators and the negotiation of all settlements of the Health Care
Claims, (ii) to make available such personnel, records and other resources in
its possession or reasonably accessible to it as shall be reasonably required
by Newco to support the prosecution of the Health Care Claims and (iii) not to
make any admission or settlement in respect of the Health Care Claims or take
any action in respect thereof without the prior written consent of Newco. Newco
shall pay to the Company as and when the same are received by Newco an
equitable allocation of the net proceeds from settlement of the Health Care
Claims.
(b) Newco shall be solely responsible for and shall pay directly the
fees and expenses (including legal fees and expenses) of pursuing the Health
Care Claims and
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shall reimburse the Company periodically for any support or other services
provided at Newco's request in respect of the Health Care Claims in an amount
equal to the Company's costs thereof determined in accordance with cost
accounting standards applicable to Government Contracts.
(c) Taxes on amounts received and Tax benefits and Tax costs in
respect of amounts paid and/or credited with respect to the Health Care Claims
and the related agreement with the United States Government shall be allocated
between the Company and Newco in the manner set forth in Section 5.5 of the Tax
Allocation Agreement.
3.9. Guaranty of Acquiror. Acquiror, for itself and its successors in
interest and assigns, hereby unconditionally and irrevocably guarantees to
Newco and its successors in interest and assigns the full and faithful
performance and observation by the Company under the Reorganization Agreements
(other than the Merger Agreement) and the Transition Agreement of all
covenants, conditions and agreements (other than any indemnification
obligations of the Company in respect of Retained Assets or Retained
Liabilities) in the Reorganization Agreements (other than the Merger Agreement)
and the Transition Agreement to be performed and observed by the Company after
the Effective Time without requiring any notice of nonpayment, nonperformance
or nonobservance or proof of notice or demand whereby to charge Acquiror
therefor, all of which Acquiror hereby expressly waives. This is a continuing
guaranty and shall remain in effect notwithstanding any bankruptcy,
reorganization or insolvency of the Company, or any successor in interest or
assignee thereof, or any disaffirmance or abandonment by a trustee thereof.
Acquiror hereby waives notice of acceptance of this Guaranty. Acquiror hereby
agrees to indemnify, defend and hold harmless Newco for all Indemnifiable
Losses, as incurred, relating to or arising from any breach or inaccuracy in
the representations and warranties contained in Sections 4.2(j) and 4.2(d)(iii)
of the Merger Agreement. Effective as of the Effective Time, Acquiror will
execute and deliver guarantees of the Company's performance and obligations
under the Designated Contracts set forth in Schedule 2.1(a)(viii) to the
counterparties on such Contracts.
3.10. Payments Adjustments to Contribution. It is the intention of
the parties to this Agreement that payments and asset transfers made by the
parties to each
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other after the Effective Time pursuant to the Reorganization Agreements are to
be treated as relating back to the Contribution as an adjustment to the assets
and liabilities contributed thereunder, and the parties shall take positions
consistent with such intention with any Taxing Authority (as defined in the Tax
Allocation Agreement), unless with respect to any payment any party receives an
opinion of counsel to the effect that there is no substantial authority for
such a position.
ARTICLE IV
MISCELLANEOUS AND GENERAL
4.1. Modification or Amendment. The parties hereto may modify or
amend this Agreement only by written agreement executed and delivered by duly
authorized officers of the respective parties.
4.2. Waiver; Remedies. No delay on the part of any party hereto in
exercising any right, power or privilege hereunder will operate as a waiver
thereof, nor will any waiver on the part of any party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder, nor will any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder. No waiver will
be effective hereunder unless it is in writing. Unless otherwise provided, the
rights and remedies herein provided are cumulative and are not exclusive of any
rights or remedies which the parties may otherwise have at law or in equity.
4.3. Counterparts. For the convenience of the parties, this Agreement
may be executed in any number of separate counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
4.4. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.
4.5. Notices. Any notice, request, instruction or other communication
to be given hereunder by any party to
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any other shall be in writing and shall be deemed to have been duly given (i)
on the date of delivery if delivered personally, or by telecopy or
telefacsimile, upon confirmation of receipt, (ii) on the first business day
following the date of dispatch if delivered by Federal Express or other
nationally reputable next-day courier service, or (iii) on the third business
day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder shall be
delivered as set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
(a) If to Newco:
NEW ROCKWELL INTERNATIONAL CORPORATION
2201 Seal Beach Boulevard
Seal Beach, California 90740-8250
Attention: William J. Calise, Jr., Esq.
Senior Vice President,
General Counsel and Secretary
Telecopy: (310) 797-5687
(b) if to Acquiror, the Company or Sub:
BOEING NA, INC.
c/o The Boeing Company
P.O. Box 3707
M/S 13-08
Seattle, WA 98124-2207
Attention: Theodore J. Collins, Esq.
Vice President & General Counsel
Telecopy: (206) 544-4900
4.6. Entire Agreement. The Reorganization Agreements (including the
Annexes and Schedules thereto), the Transition Agreement and the
Confidentiality Agreement constitute the entire agreement, and supersede all
other prior agreements, understandings, representations and warranties, both
written and oral, among the parties, with respect to the subject matter hereof
and thereof.
4.7. Certain Obligations. Whenever this Agreement requires any of the
Subsidiaries of any party to take any action, this Agreement will be deemed to
include an undertaking on the part of such party to cause such Subsidiary to
take such action.
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4.8. Assignment. No party to this Agreement shall convey, assign or
otherwise transfer any of its rights or obligations under this Agreement
without the express written consent of the other parties hereto in their sole
and absolute discretion, except that any party hereto may assign any of its
rights hereunder to a successor to all or any part of its business. Except as
aforesaid, any such conveyance, assignment or transfer without the express
written consent of the other parties shall be void ab initio. No assignment of
this Agreement shall relieve the assigning party of its obligations hereunder.
4.9. Captions. The Article, Section and paragraph captions herein are
for convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
4.10. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
4.11. No Third Party Beneficiaries. Nothing contained in this
Agreement is intended to confer upon any person or entity other than the
parties hereto and their respective successors and permitted assigns, any
benefit, right or remedies under or by reason of this Agreement, except that
the provisions of Article II hereof shall inure to the benefit of Indemnitees
and the provisions of Section 3.3 shall inure to the benefit of the Savings
Plans.
4.12. Consent to Jurisdiction. Each of the Company, Acquiror and
Newco irrevocably submits to the exclusive jurisdiction of (i) the Superior
Court of the State of California, San Francisco County and (ii) the United
States District Court for the Northern District of California for the purposes
of any suit, action or other proceeding
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arising out of this Agreement or any transaction contemplated hereby (and
agrees not to commence any action, suit or proceeding relating hereto except in
such courts). Each of the Company, Acquiror and Newco further agrees that
service of any process, summons, notice or document hand delivered or sent by
registered mail to such party's respective address set forth in Section 4.5
will be effective service of process for any action, suit or proceeding in
California with respect to any matters to which it has submitted to
jurisdiction as set forth in the immediately preceding sentence. Each of the
Company, Acquiror and Newco 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 Superior
Court of the State of California, San Francisco County or (ii) the United
States District Court for the Northern District of California, 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.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto on the date
first hereinabove written.
ROCKWELL INTERNATIONAL CORPORATION
By: /s/ WILLIAM J. CALISE, JR.
--------------------------------
Name: William J. Calise, Jr.
Title: Senior Vice President
THE BOEING COMPANY
By: /s/ PHILIP M. CONDIT
--------------------------------
Name: Philip M. Condit
Title: President and Chief
Executive Officer
NEW ROCKWELL INTERNATIONAL CORPORATION
By: /s/ WILLIAM J. CALISE, JR.
--------------------------------
Name: William J. Calise, Jr.
Title: Senior Vice President
BOEING NA, INC.
By: /s/ BOYD E. GIVAN
-------------------------------
Name: Boyd E. Givan
Title: Director