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EXHIBIT 2.1
REDEMPTION AGREEMENT
REDEMPTION AGREEMENT (this "Agreement"), dated as of March 5,
1997, among Westinghouse Air Brake Company, a Delaware corporation (the
"Company"), Scandinavian Incentive Holdings, B.V., a corporation organized
under the laws of the Netherlands ("SIH"), and Incentive AB ("Incentive"), a
corporation organized under the laws of the Kingdom of Sweden and the sole
stockholder of SIH.
W I T N E S S E T H
WHEREAS, SIH is the owner, beneficially and of record, of
10,000,000 shares of common stock, par value $0.01 per share, of the Company
(the "Common Stock"); and
WHEREAS, the Company desires to redeem 4,000,000 shares of
Common Stock (the "Shares") from SIH substantially simultaneously with the
purchase by Vestar Equity Partners, L.P., a Delaware limited partnership
("Vestar"), Harvard Private Capital Holdings, Inc., a Massachusetts corporation
("Harvard"), American Industrial Partners Capital Fund II, L.P., a Delaware
limited partnership ("AIP"), and certain members of the Company's management
(the "Management Purchasers" and, together with Vestar, Harvard and AIP, the
"Buyer"), collectively, of the remaining 6,000,000 shares pursuant to the SIH
Purchase (as defined below), and SIH is willing to sell the Shares to the
Company upon the terms and subject to the conditions stated herein (the
"Redemption");
WHEREAS, substantially simultaneously with, and as a
condition to, the consummation of the Redemption, Buyer will purchase (at a
price equal to the Redemption Price paid by the Company for each share redeemed
by the Company in the Redemption) from SIH 6,000,000 shares of Common Stock
(the "SIH Purchase") pursuant to the SIH Purchase Agreement, dated as of the
date hereof, among SIH, Incentive, Vestar, Harvard AIP and the Management
Purchasers (the "SIH Purchase Agreement"), a copy of which is attached as
Exhibit A hereto;
WHEREAS, the respective Board of Directors of each of the
Company, SIH and Incentive have approved the Transaction (as defined herein)
and the execution, delivery and performance of the Transaction Documents (as
defined herein) to which it is a party;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, SIH, Incentive and the Company hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. As used in this Agreement, terms
defined in the preamble and recitals to this Agreement shall have the meanings
given to them therein and the following capitalized terms shall have the
following respective meanings:
"Acquisition Proposal" shall have the meaning specified in
Section 6.1.
"Business Day" shall mean any day other than a Saturday or
Sunday or a day on which banking institutions in Boston,
Massachusetts, New York, New York,
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Pittsburgh, Pennsylvania or Stockholm, Sweden are authorized or
required by law or executive order to remain closed.
"Closing" shall have the meaning specified in Section 3.1.
"Closing Date" shall have the meaning specified in Section
3.1.
"Existing Stockholders Agreement" shall mean the Stockholders
Agreement, dated as of January 31, 1995, by and among SIH, the Voting
Trust and the Company, and joined for certain limited purposes by
Vestar/Company Investors, L.P., Vestar Capital Partners, Inc., William
E. Kassling, Emilio A. Fernandez and Incentive.
"Redemption Price" shall have the meaning specified in
Section 2.1.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Transaction" shall mean the collective reference to the SIH
Purchase and the Redemption.
"Voting Trust" shall mean the Voting Trust created pursuant
to the Voting Trust Agreement.
"Voting Trust Agreement" shall mean the Second Amended WABCO
Voting Trust/Disposition Agreement, dated as of December 13, 1995, by
and among the trustholders and the trustees parties thereto.
ARTICLE II
REDEMPTION AND SALE
SECTION 2.1. Redemption of Common Stock. On the terms and
subject to the conditions set forth in this Agreement, on the Closing Date (as
hereinafter defined), the Company agrees to redeem from SIH and SIH agrees to
sell to the Company the Shares. In consideration for the sale by SIH of the
Shares, SIH will be paid $44,000,000 (the "Redemption Price"), a Redemption
Price of $11.00 per Share.
ARTICLE III
THE CLOSING
SECTION 3.1. Closing; Deliveries. (a) Unless this Agreement
shall have been terminated and the transactions herein contemplated shall have
been abandoned pursuant to Section 8.1 hereof, the closing of the Redemption
(the "Closing") shall take place at the offices of Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, New York, at 10:00 a.m., New York City time, on
March 31, 1997 or as soon as practicable following the satisfaction (or, where
permissible, due waiver by the parties entitled to the benefits thereof) of the
conditions set forth in Article 7 hereof, or on such other date and at such
other time and place as may be mutually agreed upon by the parties hereto. The
date on and time at which the Closing actually occurs being hereinafter
referred to as the "Closing Date."
(b) At the Closing, on the terms and subject to the
conditions of this Agreement, (i) the Company shall wire transfer to the bank
account specified in writing by SIH not later than two Business Days prior to
the Closing Date immediately available funds in the amount of the Redemption
Price, against delivery by SIH of certificates representing the Shares, and
(ii) SIH
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shall deliver to the Company, against delivery by the Company of the Redemption
Price, stock certificates representing the Shares, duly endorsed for transfer
to the Company by SIH or accompanied by stock powers duly executed in favor of
the Company, and, in either case, accompanied by such other documents as may be
necessary to transfer record ownership of the Shares on the stock transfer
books of the Company, together with evidence of payment of any applicable
transfer and documentary stamp taxes and other fees.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.1. Representations of the Company. The Company
represents and warrants to SIH and Incentive that:
(a) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
and the Company has the corporate power and authority to own and
operate its properties and conduct its business as it is presently
conducted;
(b) the Company has all requisite corporate power and
authority to execute and deliver this Agreement, and any other
document necessary to consummate the Redemption;
(c) the execution and delivery of this Agreement by the
Company and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by its Board of Directors
and no other corporate action on the part of the Company is required
therefor;
(d) this Agreement has been duly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing;
(e) neither the execution, delivery and performance of this
Agreement by the Company nor the consummation by the Company of the
transactions contemplated hereby to be consummated by it will: (i)
violate the certificate of incorporation or by-laws of the Company;
(ii) violate any law, rule, regulation, order, judgment, injunction,
ruling or decree of any court or governmental authority applicable to
it or any of its assets; or (iii) with or without notice or lapse of
time or both, require any consent, approval or notice under,
constitute a violation of or default under, conflict with, give rise
to any right of termination, cancellation or acceleration under, or
result in the creation of any lien, security interest, encumbrance or
other charge upon any of its assets under, any contract, agreement,
note, mortgage, license, permit or instrument by which it is bound or
to which its assets are subject;
(f) no consent, approval, order or authorization of, or
exemption by, or filing or registration with, or notice to, any
governmental or regulatory authority is required to be obtained or
made by the Company in connection with the execution, delivery and
performance by the Company of this Agreement or the consummation by
the Company of the transactions contemplated hereby to be consummated
by it, other than the consents of the Company's principal lenders and
holders of the Company's Senior Notes referenced in Section 7.2 (f)
and (g), respectively, and filings with the SEC required to be made by
it after the Closing;
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(g) there is no litigation or proceeding pending, or to the
actual knowledge of the executive officers of the Company, threatened
or any investigation pending or threatened against the Company which
would prohibit the Company from consummating, or otherwise impair its
ability to consummate, the Transaction; and
(h) the Company has financing available to complete the
Redemption.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SIH AND INCENTIVE
SECTION 5.1. Representations of SIH and Incentive. SIH and
Incentive, jointly and severally, represent and warrant to the Company that:
(a) each of SIH and Incentive is duly organized
and validly existing under its jurisdiction of incorporation;
(b) each of SIH and Incentive has all requisite corporate
power and authority to execute and deliver this Agreement and the SIH
Purchase Agreement and to consummate the transactions contemplated
hereby and thereby to be consummated by it;
(c) the execution and delivery of this Agreement and the SIH
Purchase Agreement by each of SIH and Incentive and the consummation
by each of SIH and Incentive of the transactions contemplated hereby
and thereby to be consummated by each of them have been duly and
validly authorized and approved by all necessary corporate or other
action required on the part of each of SIH and Incentive;
(d) this Agreement has been duly executed and delivered by
each of SIH and Incentive;
(e) when executed and delivered by SIH and Incentive, this
Agreement and the SIH Purchase Agreement each will constitute a legal,
valid and binding obligation, enforceable against each of SIH and
Incentive in accordance with their respective terms subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(f) neither SIH nor Incentive has employed any broker, finder
or agent nor agreed to pay to any person any broker's fee, finder's
fee, commission or other similar form of compensation in connection
with this Agreement or the transactions contemplated hereby;
(g) there is no litigation or proceeding pending or, to the
actual knowledge of the executive officers of SIH or Incentive,
threatened or any investigation pending or threatened against SIH or
Incentive which would prohibit either SIH or Incentive from
consummating, or otherwise impair the ability of either SIH or
Incentive to consummate, any of the transactions contemplated hereby;
(h) on the date hereof SIH does, and on the Closing Date SIH
will, own the Shares of record and beneficially and the Shares are
fully paid and nonassessable;
(i) on the date hereof, SIH has, and on the Closing Date SIH
will have, good, valid and marketable title to the Shares free and
clear of all claims, liens, encumbrances,
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restrictions (including without limitation restrictions on the power
to vote or dispose of the Shares), security interests and charges of
any nature whatsoever, including without limitation any preemptive
right or right of first refusal or first offer of any party (except
for those restrictions set forth in the Existing Stockholders
Agreement) or any agreement, arrangement or understanding regarding
the sale or transfer of the Shares (other than this Agreement, the SIH
Purchase Agreement and the Existing Stockholders Agreement);
(j) on the Closing Date, upon delivery to the Company of the
Shares by SIH in exchange for the Redemption Price, the Company will
receive good, valid and marketable title to the Shares, free and clear
of all claims, liens, encumbrances, restrictions, security interests
and charges of any nature whatsoever;
(k) neither the execution, delivery and performance by SIH
and Incentive of this Agreement and the SIH Purchase Agreement nor the
consummation by each of them of the transactions contemplated hereby
or thereby will: (i) violate any organizational document of SIH or
Incentive; (ii) violate any law, rule or regulation, order, judgment,
injunction, ruling or decree of any court or governmental authority
applicable to SIH or Incentive or any of their respective assets; or
(iii) with or without notice or lapse of time or both, require any
consent, approval or notice under, constitute a violation of or
default under, conflict with, give rise to any right of termination,
cancellation or acceleration under, or result in the creation of any
lien, security interest, encumbrance or other charge upon any of the
assets of SIH or Incentive under, any contract, agreement, note,
mortgage, license, permit or instrument by which either SIH or
Incentive is bound or to which either of their respective assets is
subject, except for the waiver by the Company of its right of first
refusal under the Existing Stockholders Agreement; and
(l) no consent, approval, order or authorization of, or
exemption by, or filing or registration with, or notice to, any
governmental or regulatory authority is required to be obtained or
made by SIH or Incentive in connection with the execution, delivery
and performance by each of SIH and Incentive of this Agreement and the
SIH Purchase Agreement or the consummation by them of the transactions
contemplated hereby and thereby (other than any filings with the SEC
required to be made by Incentive or SIH after the Closing).
(m) as of the date hereof, Incentive is not aware of any
discussions regarding any Acquisition Proposal after October 30, 1996.
ARTICLE VI
COVENANTS
SECTION 6.1. Covenants of the Parties.
(a) Further Assurances and Cooperation. Subject to the terms
and conditions hereof, (i) each of the parties hereto agrees to use
its reasonable best efforts to effect the Closing of the Redemption by
March 31, 1997 and (ii) each of the parties hereto agrees to use its
reasonable best efforts to insure that the conditions set forth in
Article VII are satisfied, insofar as such matters are within the
control of such party.
(b) Public Announcements. Each of the parties hereto will
consult with each other before issuing any press release or otherwise
making any public statements with respect to the Transaction and other
matters contemplated hereby and will not issue any such press release
or make any other public statement prior to such consultation, and,
except to the
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extent that outside counsel advises that applicable law requires
otherwise, any such press release or public statement will be approved
in advance by each of the parties hereto.
(c) Other Acquisition Proposals. (i) Incentive and SIH will
not, directly or indirectly, through any officer, director,
representative, affiliate or agent (A) solicit, initiate, encourage or
assist in the submission of any inquiries, proposals or offers from
any corporation, partnership, person or other entity or group relating
to any acquisition or purchase of assets of the Company, or any equity
interest in, the Company (including any Shares), or any other form of
recapitalization transaction involving the Company, or any merger,
consolidation, business combination, spin-off, liquidation or similar
transaction involving the Company other than the Transaction (each an
"Acquisition Proposal"), (B) participate in any discussions or
negotiations regarding an Acquisition Proposal or furnish to any
person or entity (other than Buyer or the Company) any information
concerning the Company or the proposed Transaction, (C) otherwise
cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any other person (other than Buyer
or the Company) to make or enter into an Acquisition Proposal or (D)
sell, assign, convey or transfer the Shares or any interest therein or
grant any right to acquire any of the foregoing or agree or propose to
do any of the foregoing.
(ii) If either Incentive or SIH receives any
inquiry, proposal or offer to enter into any transaction of the type
referred to in Section 6.1(c)(i) (A), (B), (C) or (D) above, such
party will inform the Company of the terms thereof, except to the
extent prohibited by applicable law, rule or regulation of any
governmental authority or stock exchange by which Incentive or SIH is
bound.
(iii) Except to the extent that outside counsel
advises that applicable law requires otherwise, neither Incentive, SIH
nor any of their respective officers, directors, representatives,
affiliates or agents will disclose to any person, without the prior
written consent of the Company, the fact that Incentive and SIH have
entered into this Agreement and are engaged in the Transaction.
(d) Expenses. Each of the parties hereto will pay its own
expenses incurred or to be incurred in connection with the
Transaction.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.1. Conditions Precedent to Each Party's Obligation
to Effect the Closing. The obligation of each party hereto to consummate the
Closing hereunder shall be subject to the satisfaction (or, where permissible,
waiver by the party or parties, as the case may be, entitled to the benefits
thereof) on the Closing Date of each of the following conditions:
(a) no preliminary or permanent injunction or other order
issued by any United States federal or state court or any court in the
Kingdom of Sweden of competent jurisdiction or by any United States
federal or state governmental or regulatory body or any governmental
or regulatory body of the Kingdom of Sweden nor any statute, rule,
regulation or order of any United States federal or state governmental
authority or governmental authority of the Kingdom of Sweden shall be
in effect which (i) restrains, enjoins or otherwise prohibits the
Company, SIH or Incentive from consummating the Transaction or (ii)
impose any material limitations on the Company's ability to exercise
full rights of ownership of the Shares; and
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(b) substantially simultaneously with the Closing, the SIH
Purchase shall be consummated in accordance with the SIH Purchase
Agreement.
SECTION 7.2. Conditions Precedent to the Obligation of the
Company. The obligation of the Company to effect the Closing shall be subject
to the satisfaction (or, where permissible, waiver by the Company) on the
Closing Date of each of the following conditions:
(a) each of SIH and Incentive shall have performed and
complied in all material respects with each of its agreements and
covenants contained herein to be performed or complied with by SIH or
Incentive, as the case may be, on or prior to the Closing Date;
(b) each of the representations and warranties of SIH and
Incentive contained herein shall be true in all material respects on
and as of the Closing Date with the same effect as though made on and
as of the Closing Date (except to the extent such representations and
warranties speak as of an earlier date);
(c) the Company shall have received a certificate to the
effect that the conditions set forth in the foregoing clauses (a) and
(b) have been satisfied, signed by the Chief Executive Officer,
President, Chief Financial Officer or any Vice President of SIH and
Incentive;
(d) there shall not have occurred any event that could
reasonably be expected to have a material adverse effect on the
business, assets, properties, operations (financial or otherwise) or
prospects of the Company and its subsidiaries taken as a whole;
(e) there shall not have occurred any material disruption or
any other event that could reasonably be expected to have a material
adverse effect on the financial, banking or capital markets in the
United States;
(f) prior to or concurrently with the Closing the First
Amendment and Waiver Agreement dated as of February 28, 1997 among the
Company, certain of the Company's subsidiaries and the Company's
principal lenders relating to the Credit Agreement, dated as of
January 31, 1995, amended and restated as of February 15, 1995,
amended and restated as of June 9, 1995, and amended and restated as
of September 19, 1996, shall have been executed and delivered by the
parties thereto and shall be effective in the form of Exhibit B
hereto;
(g) prior to or concurrently with the Closing the requisite
majority of the holders of the Company's 9 3/8% Senior Notes Due 2005
shall have consented to the amendments in the form of Exhibit C hereto
proposed by the Company to the Indenture dated as of June 20, 1995
pursuant to which such Senior Notes were issued so as to permit the
Redemption; and
(h) Vestar, Harvard and AIP shall have executed and delivered
the Amended and Restated Stockholders Agreement in the form of Exhibit
D hereto and Vestar, Harvard and AIP shall have executed and delivered
the Registration Rights Agreement in the form of Exhibit E hereto.
SECTION 7.3. Conditions Precedent to the Obligations of SIH
and Incentive. The obligations of each of SIH and Incentive to effect the
Closing shall be subject to the satisfaction (or, where permissible, waiver by
SIH and Incentive) on the Closing Date of all of the following conditions:
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(a) the Company shall have performed and complied in all
material respects with each of its agreements and covenants contained
herein to be performed or complied with by the Company on or prior to
the Closing Date;
(b) each of the representations and warranties of the Company
contained herein shall be true in all material respects on and as of
the Closing Date with the same effect as though made on and as of the
Closing Date (except to the extent such representations and warranties
speak as of an earlier date);
(c) SIH and Incentive shall have received a certificate to
the effect that the conditions set forth in the foregoing clauses (a)
and (b) have been satisfied, signed by the Chief Executive Officer,
President, Chief Financial Officer or any Vice President of the
Company; and
(d) SIH and Incentive shall have received a letter from the
Company substantially in the form of Exhibit F hereto.
ARTICLE VIII
TERMINATION; SUCCESSORS AND ASSIGNS
SECTION 8.1. Termination. (a) This Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any
time prior to the Closing:
(i) by the mutual written consent of the Company, SIH and
Incentive; or
(ii) by either of the Company, SIH or Incentive in writing,
if the Closing shall not have occurred on or before March 31,
1997, provided that the right to terminate this Agreement
pursuant to this Section 8.1(a)(ii) shall not be available to
any party whose failure to fulfill any of its obligations
under this Agreement, or whose breach of any representation
or warranty by it set forth herein, has been the cause of, or
resulted in, the failure of the Closing to have occurred on
or before such date.
(b) In the event of the termination of this Agreement
pursuant to Section 8.1(a) hereof, written notice thereof shall forthwith be
given to the other parties hereto and this Agreement shall be of no further
force and effect, except that the provisions of this Article VIII and Sections
6.1(b) and (d) and Article IX hereof shall remain in full force and effect. The
foregoing provisions shall not limit or restrict the availability of specific
performance or other injunctive relief to the extent that specific performance
or other injunctive relief would be otherwise available to a party hereunder.
Nothing in this Section 8.1 shall be deemed to relieve any party from any
liability for any breach by such party of its representations, warranties,
covenants or agreements set forth in this Agreement.
SECTION 8.2. Amendments and Waivers. This Agreement may not
be amended except by an instrument in writing signed on behalf of each of the
parties hereto. Incentive and SIH, on the one hand, and the Company, on the
other hand, may, by an instrument in writing signed on behalf of such party,
waive compliance by the other party with any term or provision of this
Agreement that such other party was or is obligated to comply with or perform.
In particular, it is acknowledged and agreed that the Company may not waive the
condition set forth in Section 7.1(b) as conditions to the obligations of SIH
and Incentive to effect the Closing.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Conciliation and Arbitration. (a) If any
dispute, claim or difference arises out of or relating to this Agreement (a
"Dispute"), the parties hereto shall use their reasonable best efforts to
resolve the Dispute and, if they so desire, may consult outside experts for
assistance in arriving at such a resolution.
(b) Any Dispute shall be finally settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA") effective as of the commencement of the arbitration (the
"Rules"), except as such Rules may be modified as provided herein. The
arbitration shall be held in New York, New York, unless the parties mutually
agree to have the arbitration held elsewhere, and judgment upon the award made
therein may be entered by any court having jurisdiction thereof provided,
however, that nothing contained in this Section 9.1 shall be construed to
preclude a party from bringing any action in any court of competent
jurisdiction for injunctive or other provisional relief to compel another party
to comply with its obligations under this Agreement during the pendency of the
arbitration proceedings. The arbitral tribunal shall be composed of three
arbitrators, whose names shall be set forth on a list of arbitrators approved
by the AAA and who shall be experienced litigators admitted to practice law in
the State of New York. The Company shall appoint one arbitrator and SIH and
Incentive shall together appoint one arbitrator; provided that to the extent
any Dispute relates only to SIH, SIH shall appoint such arbitrator. A third
arbitrator shall be nominated in accordance with Rule 14 of the Rules. The two
arbitrators thus appointed shall attempt to agree upon the third arbitrator to
act as chairperson of the arbitration tribunal. If said two arbitrators fail to
appoint the chairperson within thirty days from the date of appointment of the
second arbitrator, upon written request of either party to the AAA, such
appointment shall be made in accordance with Rule 13 of the Rules. The
arbitrators shall have no power to waive, alter, amend, revoke or suspend any
of the provisions of this Agreement; provided, however, that the arbitrators
shall have the power to decide all questions with respect to the interpretation
and validity of this Section 9.1. The arbitration shall be conducted, and the
award shall be rendered, in the English language. An arbitrator may not act as
an advocate for the party nominating him, and all three arbitrators shall be
impartial and unbiased. A majority vote by the three arbitrators shall be
required on any decision made by them; provided, however, that lacking such a
majority in the case of questions of amounts of dollar or other quantities the
vote for the greatest amount or quantity shall be deemed to be a vote for the
amount or quantity next in magnitude in order to form a majority for such vote.
The arbitrators shall permit such discovery as they shall determine is
appropriate in the circumstances taking into account the needs of the parties
and the desirability of making discovery expeditious and cost effective. Any
such discovery shall be limited to information directly relevant to the
controversy or claim in arbitration and shall be concluded within thirty days
after the appointment of the arbitration panel. This agreement to arbitrate
shall be binding upon the successors and assigns of any party hereto. Except to
the extent required by law or court or administrative order, no party,
arbitrator, representative, counsel or witness shall disclose or confirm to any
person not present at the arbitration hearings any information about the
arbitration proceeding or hearings, including the names of the parties and
arbitrators, the nature and amount of the claims, the financial condition of
any party the expected date of hearing or the award made.
(c) Subject to and not in any way limiting the preceding
subparagraph, each of the parties hereto irrevocably consents and submits to
the jurisdiction in any action brought in connection with this Agreement in the
United States District Court for the Southern District of New York or any court
of competent jurisdiction in New York, New York, including, but not limited to,
any action to enforce an award rendered pursuant to the preceding subparagraph.
SIH and Incentive hereby appoint CT Corporation System as their agent for
service of process in
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New York and the Company hereby appoints Reed Smith Shaw & McClay, 375 Park
Avenue, New York, New York 10152, Attention: Ruth S. Perfido, Esq., as its
agent for service of process in New York. The submission of the parties to
jurisdiction as set forth in this Section 9.1(c) does not constitute and shall
not be deemed a consent to jurisdiction for any purpose other than those
expressly set forth in this Agreement.
SECTION 9.2. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to the conflicts of law principles thereof.
SECTION 9.3. Notices. Any notice, request, demand, waiver or
other communication required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered by hand,
(b) five Business Days after it is mailed, certified or registered mail, return
receipt requested with postage prepaid, (c) when answered back if sent by
telecopy (with receipt confirmed) or (d) three Business Days after it is sent
by express delivery service, as follows:
(a) if to the Company, to:
Westinghouse Air Brake Company
1001 Air Brake Avenue
Wilmerding, Pennsylvania 15148
Attention: Robert Brooks
Telephone No.: (412) 825-1315
Telecopier No.: (412) 825-1156
with a copy to:
Reed Smith Shaw & McClay
435 Sixth Avenue
Pittsburgh, Pennsylvania 15219
Attention: David L. DeNinno
Telephone No.: (412) 288-3214
Telecopier No.: (412) 288-3063
(b) if to SIH, to:
Scandinavian Incentive Holdings, B.V.
c/o Incentive AB
Hamngatan 2
S-11147 Stockholm, Sweden
Attention: Mr. Mikael Lilius
Telephone No.: (011) 46-8-613-65-17
Telecopier No.: (011) 46-8-611-81-61
with a copy to:
Adokatfirman Vinge KB
Smalandsgatan 20, Box 1703
S-111 87 Stockholm, Sweden
Attention: Hans Wibom, Esq.
Telephone No.: (011) 46-8-614-31-45
Telecopier No.: (011) 46-8-614-31-90
(c) if to Incentive, to:
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Incentive AB
Hamngatan 2
S-111 47 Stockholm, Sweden
Attention: Mr. Mikael Lilius
Telephone No: (011) 46-8 613-65-17
Telecopier No: (011) 46-8-611-81-61
with a copy to:
Adokatfirman Vinge KB
Smalandsgatan 20, Box 1703
S-111 87 Stockholm, Sweden
Attention: Hans Wibom, Esq.
Telephone No.: (011) 46-8-614-31-45
Telecopier No.: (011) 46-8-614-31-90
SECTION 9.4. Entire Agreement. This Agreement, the
Transaction Documents and the other Exhibits hereto constitute the entire
agreement among the parties hereto and supersede any prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
SECTION 9.5. Successors and Assigns. This Agreement shall not
be assignable by SIH or Incentive without the prior written consent of the
Company or by the Company without the prior written consent of SIH and
Incentive. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Nothing
in this Agreement, express or implied, is intended to confer on any person
other than the parties hereto or their respective successors and permitted
assigns, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
SECTION 9.6. Interpretation. The section headings contained
in this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, the term
"affiliate" shall have the meaning set forth in Rule 12b-2 of the General Rules
and Regulations promulgated under the Securities Exchange Act of 1934, as
amended.
SECTION 9.8. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
SECTION 9.9. Non-Survival of Representations and Warranties.
None of the representations and warranties contained in this Agreement shall
survive the Closing, except for the representations and warranties made by each
of SIH and Incentive in Sections 5.1 (h), (i) and (j).
SECTION 9.10. Severability. The provisions of the Agreement
shall be deemed severable and the invalidity or unenforceability of any
provision shall not effect the validity or enforceability of the other
provisions hereof.
SECTION 9.11. Existing Stockholders Agreement. The Company
hereby acknowledges and agrees that all obligations owed by SIH and its
affiliates to the Company under the Existing Stockholders Agreement (other than
under Section 10 thereof) are terminated effective as of the Closing. SIH
hereby acknowledges and agrees that all rights and benefits accruing to SIH and
its affiliates under the Existing Stockholders Agreement are terminated
effective as of the Closing.
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SECTION 9.12. Registration Rights Agreement. SIH hereby
acknowledges and agrees that all rights and benefits accruing to it under that
certain Common Stock Registration Rights Agreement, dated as of January 31,
1995, with the Company are terminated effective as of the Closing.
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IN WITNESS HEREOF, the undersigned have executed this
agreement as of the date first above written.
WESTINGHOUSE AIR BRAKE COMPANY
By: ________________________________
Title: _____________________________
SCANDINAVIAN INCENTIVE HOLDINGS, B.V.
By: ________________________________
Title: _____________________________
INCENTIVE AB
By: ________________________________
Title: _____________________________