\nParent Permits……………………. Section 4.10……………………. 29
\nParent…………………………… Preamble……………………….. 1
\nParent Rights…………………….. Section 4.2(a)………………….. 25
\nParent SEC Reports………………… Section 4.4(a)………………….. 27
\nParent Securities…………………. Section 4.2(a)………………….. 27
\nPayment Agent…………………….. Section 2.9(a)………………….. 11
\nPer Preferred Share Amount…………. Recitals……………………….. 1
\nPer Share Amount………………….. Recitals……………………….. 1
\nperson…………………………… Section 8.8(e)………………….. 48
\nPreferred Shares………………….. Recitals……………………….. 1
\nPreferred Stock Consideration………. Recitals……………………….. 1
\nPreferred Stock Election…………… Section 1.1(b)………………….. 3
\nPreferred Stock Proration Factor……. Section 1.1(d)………………….. 4
\nPreliminary Prospectus…………….. Section 1.1(h)………………….. 5
\nProxy Statement…………………… Section 3.5…………………….. 18
\nRestricted Stock………………….. Section 2.10(a)…………………. 13
\nRights Plan………………………. Section 3.2(a)………………….. 15
\nRights…………………………… Section 3.2(a)………………….. 15
\nS-4……………………………… Section 1.1(h)………………….. 5
\nSchedule 14D-9……………………. Section 1.2(b)………………….. 7
\nSEC……………………………… Section 1.1(h)………………….. 5
\nSecurities Act……………………. Section 1.1(h)………………….. 5
\nShares…………………………… Recitals……………………….. 1
\nStock Elections…………………… Section 1.1(b)………………….. 3
\nStockholder’s Agreement……………. Section 1.2(a)………………….. 7
\nStockholders’ Meeting……………… Section 5.4…………………….. 37
\nsubsidiary or subsidiaries…………. Section 8.8(f)………………….. 48
\nSuperior Proposal…………………. Section 5.3(b)………………….. 36
\nTax or Taxes……………………… Section 3.13(a)(ii)……………… 21
\nTax Return……………………….. Section 3.13(a)(iii)…………….. 22
\nThird Party………………………. Section 5.3(b)………………….. 36
\nThird Party Acquisition……………. Section 5.3(b)………………….. 36
\n<\/c><\/c><\/s><\/table>\n viii<\/p>\n
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER<\/p>\n
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this “Agreement”)
\ndated as of January 23, 2001 is among LITTON INDUSTRIES, INC., a Delaware
\ncorporation (the “Company”), NORTHROP GRUMMAN CORPORATION, a Delaware
\ncorporation (“Parent”), NNG, Inc., a Delaware corporation and a wholly owned
\nsubsidiary of Parent (“Holdco”) and LII ACQUISITION CORP., a Delaware
\ncorporation and a wholly owned subsidiary of Holdco (“Acquisition I”), and
\namends and restates in its entirety that certain Agreement and Plan of Merger,
\ndated as of December 21, 2000, among the Company, Parent and Acquisition I (the
\n“Original Agreement”).<\/p>\n
WHEREAS, the board of directors of the Company (the “Company Board”) has,
\nin light of and subject to the terms and conditions set forth herein, (i)
\napproved this Agreement, and deem it and the Offer (as defined below) advisable,
\nand fair to and in the best interests of the common stockholders of the Company
\nand (ii) resolved to recommend acceptance of the Offer to the common
\nstockholders of the Company and approval and adoption by the stockholders of the
\nCompany of this Agreement; and<\/p>\n
WHEREAS, in furtherance thereof, on January 5, 2001, Acquisition I
\ncommenced a tender offer to acquire all of the outstanding shares of common
\nstock, par value $1.00 per share, of the Company (the “Shares”), together with
\nthe associated Rights (as hereafter defined), at a price of $80.00 per Share
\n(such amount, or any greater amount per share paid pursuant to the Offer, being
\nhereinafter referred to as the “Per Share Amount”), net to the seller in cash,
\nand to acquire all of the outstanding shares of Series B $2 Cumulative Preferred
\nStock, par value $5.00 per share (the “Preferred Shares”), at a price of $35.00
\nper Preferred Share (such amount, or any greater amount per share paid pursuant
\nto the Offer, being referred to as the “Per Preferred Share Amount”), net to
\nthe seller in cash, in accordance with the terms and subject to the conditions
\nprovided herein (this offer being referred to herein as the “Original Offer”);<\/p>\n
WHEREAS, the parties hereto have agreed pursuant to this Agreement that the
\nOriginal Offer will be amended with respect to the Shares (and remain unchanged
\nwith respect to the Preferred Shares) to become an exchange offer by Holdco (the
\nOriginal Offer as so amended, the “Offer”) in which each Share together with
\nthe associated Right accepted by Holdco in accordance with the terms of the
\nOffer will be exchanged for the right to receive from Holdco, at the election of
\nthe holder of such Share: (X) the Per Share Amount, net to the Seller in cash
\n(the “Cash Consideration”) or (Y) a number of shares of the common stock, par
\nvalue $1.00 per share, of Holdco (the “Holdco Common Stock”) equal to the Per
\nShare Amount plus $.25 divided by the Average Parent Price (the “Common Stock
\nConsideration”) plus cash in lieu of fractional shares of Holdco Common Stock
\nin accordance with Section 1.1(g) or (Z) a number of shares of Series B
\nConvertible Preferred Stock, par value $1.00 per share, of Holdco (the “Holdco
\nPreferred Stock”) equal to the quotient of the Per Share Amount divided by the
\ninitial liquidation preference per share of the Holdco Preferred Stock (the
\n“Preferred Stock Consideration”) plus cash in lieu of fractional shares of
\nHoldco Preferred Stock in accordance with Section 1.1(g), subject to proration
\nin the case of alternatives (Y) and (Z) as set forth in Sections 1.1(d) and
\n1.1(e). The term “Average Parent Price” shall mean the average of the closing
\nprices for Parent Common Stock as reported on the New York Stock Exchange<\/p>\n
1<\/p>\n
Composite Transaction Reporting System for the five consecutive trading days
\nending on the second trading day before the final Expiration Date.<\/p>\n
WHEREAS, the Company has agreed pursuant to this Agreement that following
\nthe purchase of Shares in the Offer Acquisition I will be merged with and into
\nthe Company with the Company as the surviving corporation, as described in
\nArticle 2 of this Agreement (the “Litton Merger”), and Parent has agreed that
\nimmediately prior to the purchase of Shares and Preferred Shares in the Offer,
\nNGC Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
\nHoldco (“Acquisition II”), will be merged with and into Parent with Parent as
\nthe surviving corporation pursuant to the Agreement and Plan of Merger attached
\nas Exhibit A to this Agreement (the “Northrop Merger Agreement”) and in
\naccordance with Section 251(g) of the Delaware General Corporation Law (“DGCL”)
\n(the “Northrop Merger” and together with the Litton Merger, the “Mergers”);<\/p>\n
WHEREAS, concurrently with the consummation of the Northrop Merger, Holdco
\nwill be renamed “Northrop Grumman Corporation” and will become the parent
\ncorporation of Parent, as further described in Article 2 of this Agreement and
\nin the Northrop Merger Agreement; and<\/p>\n
WHEREAS, it is intended for federal income tax purposes that (i) the
\nNorthrop Merger qualify as a reorganization described in Section 368(a) of the
\nUnited States Internal Revenue Code of 1986, as amended (the “Code”), or, taken
\ntogether with the Offer and the Litton Merger, qualify as an exchange described
\nin Section 351 of the Code and (ii) the Offer, taken together with the Northrop
\nMerger and the Litton Merger, qualify as an exchange described in Section 351 of
\nthe Code.<\/p>\n
NOW, THEREFORE, in consideration of the premises and the representations,
\nwarranties, covenants and agreements herein contained and intending to be
\nlegally bound hereby, the Company, Parent, Holdco and Acquisition I hereby agree
\nas follows:<\/p>\n
ARTICLE 1<\/p>\n
THE OFFER<\/p>\n
SECTION 1.1. The Offer.
\n ——— <\/p>\n
(a) Provided that this Agreement shall not have been terminated in
\naccordance with Article 7 and none of the events or conditions set forth in
\nAnnex A shall have occurred and be existing, Parent shall cause Acquisition I
\nand Holdco to amend the Original Offer not later than February 1, 2001 as
\nrequired to reflect the revised terms and conditions set forth in this
\nAgreement, including Holdco as the Offeror. In the Offer, each Share together
\nwith the associated Right accepted by Holdco in accordance with the terms of the
\nOffer shall be exchanged for the right to receive from Holdco, at the election
\nof the holder of such Share: (X) the Cash Consideration or (Y) the Common Stock
\nConsideration plus cash in lieu of fractional shares of Holdco Common Stock in
\naccordance with Section 1.1(g), without interest, or (Z) the Preferred Stock
\nConsideration plus cash in lieu of fractional shares of Holdco <\/p>\n
2<\/p>\n
Preferred Stock in accordance with Section 1.1(g), without interest, subject to
\nproration in the case of alternatives (Y) and (Z) as set forth in Sections
\n1.1(d) and (e). In the Offer, each Preferred Share accepted by Holdco in
\naccordance with the terms of the Offer shall be exchanged for the right to
\nreceive the Per Preferred Share Amount. Parent and Holdco shall use all
\nreasonable efforts to consummate the Offer. Parent shall cause Holdco to accept
\nfor payment, and Holdco shall accept for payment, Shares and Preferred Shares
\nwhich have been validly tendered and not withdrawn pursuant to the Offer at the
\nearliest time following expiration of the offering period in the Offer at which
\nall conditions to the Offer shall have been satisfied or waived by Holdco. The
\nobligation of Holdco to accept for payment, and pay for Shares and\/or Preferred
\nShares tendered pursuant to the Offer shall be subject only to the condition
\nthat the sum of the number of Shares validly tendered plus the number of
\nPreferred Shares validly tendered shall be at least 25,646,399 shares (the
\n“Minimum Condition”) and the other conditions set forth in Annex A hereto.
\nHoldco expressly reserves the right to increase the Per Share Amount or the Per
\nPreferred Share Amount and to waive any condition of the Offer, except the
\nMinimum Condition. Without the prior written consent of the Company, Holdco
\nshall not decrease the Per Share Amount or the Per Preferred Share Amount or
\nchange the form of consideration payable in the Offer, decrease the number of
\nShares or Preferred Shares sought to be purchased in the Offer, impose
\nadditional conditions to the Offer, amend any other term of the Offer in any
\nmanner adverse to the holders of Shares or Preferred Shares, reduce the time
\nperiod during which the Offer shall remain open or waive the Minimum Condition.
\nThe Cash Consideration and the Per Preferred Share Amount shall be paid net to
\nthe seller in cash, less any required withholding of taxes, upon the terms and
\nsubject to the conditions of the Offer. The Company agrees that no Shares or
\nPreferred Shares held by the Company or any of its subsidiaries will be tendered
\nin the Offer.<\/p>\n
(b) Subject to Sections 1.1(d), (e) and (f), each holder of Shares shall
\nbe entitled to elect to specify (i) the number of Shares which such holder
\ndesires to have exchanged for the right to receive the Cash Consideration (a
\n“Cash Election”), (ii) the number of Shares which such holder desires to have
\nexchanged for the right to receive Holdco Common Stock (a “Common Stock
\nElection”); and (iii) the number of Shares which such holder desires to have
\nexchanged for Holdco Preferred Stock (a “Preferred Stock Election” and together
\nwith a Common Stock Election, the “Stock Elections”). Any Shares which are not
\nthe subject of a valid Common Stock Election or valid Preferred Stock Election
\nshall be exchanged for the right to receive the Cash Consideration. Any Cash
\nElection, Common Stock Election or Preferred Stock Election shall be referred to
\nherein as an “Election.” Each holder of Shares making a Preferred Stock Election
\nshall also specify an Alternative A, Alternative B or Alternative C election,
\nwhich election will become effective in the event that proration of the
\nPreferred Stock Consideration is required as provided in Section 1.1(d). Each
\nholder of Shares making a Common Stock Election shall also specify an
\nAlternative A or Alternative B election which election will become effective in
\nthe event that proration of the Common Stock Consideration is required as
\nprovided in Section 1.1(e) and any holder making a Common Stock Election that
\ndoes not specify an alternative election shall be deemed to have elected
\nAlternative B. All Elections shall be made on a form furnished by Parent for
\nthat purpose (a “Form of Election”), which form may be part of the letter of
\ntransmittal accompanying the Offer, and reasonably satisfactory to the Company.
\nHolders of<\/p>\n
3<\/p>\n
record of Shares who hold such Shares as nominees, trustees or in other
\nrepresentative capacities may submit multiple Forms of Election on behalf of
\ntheir respective beneficial holders.<\/p>\n
(c) There shall be no proration of Cash Elections.<\/p>\n
(d) In the event the total number of Preferred Stock Elections would
\nrequire aggregate Preferred Stock Consideration in excess of the Maximum
\nPreferred Stock Consideration, such Preferred Stock Elections shall be subject
\nto proration as follows: For each Preferred Stock Election, the number of
\nShares that shall receive the Preferred Stock Consideration shall be the total
\nnumber of Shares subject to such Preferred Stock Election multiplied by the
\nPreferred Stock Proration Factor. The “Preferred Stock Proration Factor” means
\na fraction (x) the numerator of which shall be the Maximum Preferred Stock
\nConsideration and (y) the denominator of which shall be the product of the
\naggregate number of Shares subject to all Preferred Stock Elections made by all
\nholders of Shares multiplied by the Preferred Stock Consideration. The maximum
\naggregate amount of the Preferred Stock Consideration shall be 3,500,000 shares
\nof Holdco Preferred Stock (the “Maximum Preferred Stock Consideration”). All
\nShares subject to a Preferred Stock Election and an Alternative A or Alternative
\nB election, other than that number converted into the right to receive the
\nPreferred Stock Consideration in accordance with this Section 1.1(d), shall be
\ndeemed to be Common Stock Elections (expressing the same Alternative A or
\nAlternative B election) and converted into the right to receive the Common Stock
\nConsideration, subject to proration as provided in Section 1.1(e). All shares
\nsubject to a Preferred Stock Election and an Alternative C election, other than
\nthat number converted into the right to receive the Preferred Stock
\nConsideration in accordance with this Section 1.1(d), shall be deemed to be Cash
\nElections and converted into the right to receive the Cash Consideration.<\/p>\n
(e) In the event the total number of Common Stock Elections (including any
\ndeemed Common Stock Elections as provided for in Section 1.1(d)) would require
\naggregate Common Stock Consideration in excess of the Maximum Common Stock
\nConsideration, such Common Stock Elections shall be subject to proration as
\nfollows: (i) First, the Common Stock Elections made by the holders of Shares
\nmaking an Alternative A election for proration on their Form of Election for the
\nCommon Stock Election shall be reduced by the lesser of (A) the number of Shares
\nsubject thereto, and (B) the number of Common Stock Elections required to
\neliminate such excess treating all Alternative A elections on a pro rata basis
\nbased on the number of Shares subject thereto. (ii) Second, if the number of
\nCommon Stock Elections is still in excess of the Maximum Common Stock
\nConsideration, then for each Common Stock Election made by the holder of Shares
\nmaking an Alternative B election for proration on their Form of Election for the
\nCommon Stock Election, the number of Shares that shall be converted into the
\nright to receive the Common Stock Consideration shall be the total number of
\nShares subject to such Common Stock Election multiplied by the Common Stock
\nProration Factor. The “Common Stock Proration Factor” means a fraction (x) the
\nnumerator of which shall be the Maximum Common Stock Consideration and (y) the
\ndenominator of which shall be the product of the aggregate number of Shares
\nsubject to all Common Stock Elections which are Alternative B elections
\nmultiplied by the Common Stock Consideration. (iii) All Shares subject to
\nCommon Stock Elections, after the reduction required by clause (i) above, if
\napplicable, and subject to proration in accordance with clause (ii) above, if
\napplicable, shall be converted into the right to receive the <\/p>\n
4<\/p>\n
Common Stock Consideration. The maximum aggregate amount of the Common Stock
\nConsideration shall be 13,000,000 shares of Holdco Common Stock (such amount or
\nany lesser amount specified in accordance with Section 1.1(f) being referred to
\nas the “Maximum Common Stock Consideration”); provided, however, in no event
\n ——– ——-
\nshall the Maximum Common Stock Consideration exceed the number of shares of
\nHoldco Common Stock that Holdco would be permitted to issue without a vote of
\nParent or Holdco stockholders pursuant to applicable law or the rules of any
\nnational securities exchange. All Shares subject to an actual or deemed Common
\nStock Election, other than that number converted into the right to receive the
\nCommon Stock Consideration in accordance with this Section 1.1(e), shall be
\nconverted into the right to receive the Cash Consideration.<\/p>\n
(f) In the event that the average of the closing prices for Parent Common
\nStock as reported on the New York Stock Exchange Composite Transaction Reporting
\nSystem for any five consecutive trading days ending not later than two trading
\ndays prior to the Expiration Date (without giving effect to any extension
\nresulting from the exercise of the option described in this Section 1.1(f)) is
\nless than $75.00, Holdco shall have the option, which may be exercised only one
\ntime and must be exercised within two business days after any such five trading
\nday period, to reduce the Maximum Common Stock Consideration by any number of
\nshares of Holdco Common Stock. If Holdco exercises such option: (i) such
\nexercise shall be irrevocable; (ii) Holdco shall publicly announce within one
\nbusiness day following such exercise the new Maximum Common Stock Consideration;
\nand (iii) if such reduction in the Holdco Common Stock in the Offer would,
\npursuant to the applicable rules and regulations under the Exchange Act, require
\nan extension of the Expiration Date, (x) Holdco shall extend the Expiration Date
\nfor the minimum required period and publicly announce within one business day
\nthe new Expiration Date and (y) Holdco agrees to waive, and shall be deemed to
\nhave waived, from and after the Expiration Date prior to the extension thereof
\nthe conditions specified in the initial paragraph of Annex A hereof under
\nclauses (v)(b), (c), (d) (with respect to a termination by Parent or Acquisition
\nI pursuant to Section 7.1(d)(i)) and (e)(i).<\/p>\n
(g) No fractional share of Holdco Common Stock or Holdco Preferred Stock
\nshall be issued, and each person that would otherwise be entitled to receive a
\nfractional share shall receive, in lieu thereof, without interest, cash in the
\namount of such fraction multiplied by the Average Parent Price (in the case of
\nHoldco Common Stock) or $100.00 (in the case of Holdco Preferred Stock).<\/p>\n
(h) Not later than February 1, 2001, Holdco (or Parent on behalf of Holdco
\nwhich shall become the successor registrant to Parent under the Securities Act
\nof 1933, as amended (the “Securities Act”) upon consummation of the Northrop
\nMerger) shall prepare and file with the Securities and Exchange Commission (the
\n“SEC”) a registration statement on Form S-4 to register under the Securities
\nAct the offer and sale of Holdco Common Stock and the Holdco Preferred Stock
\npursuant to the Offer (the “S-4”). The S-4 will include a preliminary
\nprospectus containing the information required under Rule 14d-4(b) promulgated
\nunder the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (the
\n“Preliminary Prospectus”). Concurrently with the filing of the S-4,
\nAcquisition I shall file with the SEC an amendment to its previously filed
\nTender Offer Statement on Schedule TO with respect to the Original Offer, which
\nshall include or incorporate by reference all or part of the Preliminary
\nProspectus and <\/p>\n
5<\/p>\n
form of transmittal letter reflecting the Offer and describing the Mergers
\n(together with any supplements or amendments thereto, collectively the “Offer
\nDocuments”). Promptly thereafter, Parent and Holdco shall cause the Offer
\nDocuments to be disseminated to holders of Shares and Preferred Shares. The
\nOffer Documents will comply in all material respects with the provisions of
\napplicable federal securities laws. The information provided and to be provided
\nby the Company, Parent, Holdco and Acquisition I for use in the S-4 or the Offer
\nDocuments shall not, on the date filed with the SEC and on the date first
\npublished or sent or given to the Company’s stockholders, as the case may be,
\ncontain any untrue statement of a material fact or omit to state any material
\nfact required to be stated therein or necessary in order to make the statements
\ntherein, in light of the circumstances under which they were made, not
\nmisleading. Parent, Holdco, Acquisition I and the Company each agrees promptly
\nto correct any information provided by it for use in the S-4 or the Offer
\nDocuments if and to the extent that it shall have become false or misleading in
\nany material respect and Holdco further agrees to take all steps necessary to
\ncause the Offer Documents as so corrected to be filed with the SEC and to be
\ndisseminated to holders of Shares and Preferred Shares, in each case as and to
\nthe extent required by applicable federal securities laws.<\/p>\n
(i) Subject to the terms and conditions thereof, the Offer shall remain
\nopen until at least midnight, New York City time, on the twentieth business day
\nfollowing the filing of the S-4 and the amendment to the Tender Offer Statement
\non Schedule TO (the initial “Expiration Date,” and any expiration time and date
\nestablished pursuant to an authorized extension of the Offer as so extended,
\nalso an “Expiration Date”); provided, however, that without the consent of the
\n ——– ——-
\nCompany Board, Holdco may: (i) from time to time extend the Offer (each such
\nindividual extension not to exceed five (5) business days after the previously
\nscheduled Expiration Date), if at the scheduled Expiration Date any of the
\nconditions of the Offer shall not have been satisfied or waived, until such time
\nas such conditions are satisfied or waived to the extent permitted by this
\nAgreement; or (ii) extend the Offer for any period required by any rule,
\nregulation, interpretation or position of the SEC or the staff thereof
\napplicable to the Offer. Parent agrees to cause Holdco to extend the Offer from
\ntime to time in accordance with this Section 1.1(i) for the shortest time
\nperiods which it reasonably believes are necessary until consummation of the
\nOffer if the conditions of the Offer shall not have been satisfied or waived so
\nlong as this Agreement shall not have been terminated in accordance with Article
\n7 hereof. Parent and Holdco shall comply with the obligations respecting prompt
\npayment and announcement under the Exchange Act, and, without limiting the
\ngenerality of the foregoing, Holdco shall, and Parent shall cause Holdco to,
\naccept for payment, and pay for, all Shares and Preferred Shares validly
\ntendered and not withdrawn pursuant to the Offer promptly following the
\nacceptance of such Shares and Preferred Shares for payment pursuant to the Offer
\nand this Agreement.<\/p>\n
SECTION 1.2. Company Action.
\n ————– <\/p>\n
(a) The Company hereby approves of and consents to the Offer and
\nrepresents and warrants that the Company Board, at a meeting duly called and
\nheld, has, subject to the terms and conditions set forth herein, (i) approved
\nthis Agreement, and deems it and the Offer advisable, and fair to and in the
\nbest interests of the common stockholders of the Company, (ii) approved this
\nAgreement and the transactions contemplated hereby, including the Stockholder’s
\nAgreements, dated as of the date hereof, among Parent, Holdco, Acquisition I,<\/p>\n
6<\/p>\n
Unitrin, Inc. (the “Stockholder’s Agreement”), the Offer and the Litton Merger,
\nin all respects and such approval constitutes approval of the Stockholder’s
\nAgreement in the form attached hereto as Exhibit D, the Offer, this Agreement
\nand the Litton Merger for purposes of Section 203 of the DGCL and (iii) resolved
\nto recommend that the common stockholders of the Company accept the Offer,
\ntender their Shares thereunder to Holdco and that the stockholders of the
\nCompany approve and adopt this Agreement and the Litton Merger; provided, that
\nsuch recommendation may be withdrawn, modified or amended if permitted by
\nSections 5.3 and 5.4. The Company consents to the inclusion of such
\nrecommendation and approval in the Offer Documents. The Company further
\nrepresents that Merrill Lynch & Co. (the “Financial Adviser”) has delivered to
\nthe Company Board its written opinion that the consideration to be received by
\nthe common stockholders of the Company pursuant to the Offer and the Litton
\nMerger is fair to such stockholders from a financial point of view.<\/p>\n
(b) The Company hereby agrees to file with the SEC as soon as practicable
\nafter the filing by Parent and Acquisition I of the amendment to their Offer
\nDocuments pursuant to Section 1.1(h), an amendment to its
\nSolicitation\/Recommendation Statement on Schedule 14D-9 pertaining to the Offer
\n(together with any amendments or supplements thereto, the “Schedule 14D-9”)
\ncontaining the recommendation described in Section 1.2(a). The Schedule 14D-9
\nwill comply in all material respects with the provisions of applicable federal
\nsecurities laws and, on the date filed with the SEC and on the date first
\npublished, sent or given to the Company’s stockholders, shall not contain any
\nuntrue statement of a material fact or omit to state any material fact required
\nto be stated therein or necessary in order to make the statements therein, in
\nlight of the circumstances under which they were made, not misleading, except
\nthat no representation is made by the Company with respect to information
\nsupplied by Parent, Holdco, or Acquisition I in writing for inclusion in the
\nSchedule 14D-9. The Company, Parent, Holdco, and Acquisition I each agrees
\npromptly to correct any information provided by it for use in the Schedule 14D-9
\nif and to the extent that it shall have become false or misleading in any
\nmaterial respect and the Company further agrees to take all steps necessary to
\ncause the Schedule 14D-9 as so corrected to be filed with the SEC and
\ndisseminated to the holders of Shares and Preferred Shares, in each case as and
\nto the extent required by applicable federal securities laws.<\/p>\n
(c) In connection with the Offer, the Company will promptly furnish
\nParent, Holdco, and Acquisition I with mailing labels, security position
\nlistings and any available listing or computer files containing the names and
\naddresses of the record holders of the Shares and Preferred Shares as of a
\nrecent date and shall furnish Acquisition I with such additional information and
\nassistance (including, without limitation, updated lists of stockholders,
\nmailing labels and lists of securities positions) as Acquisition I or its agents
\nmay reasonably request in communicating the Offer to the record and beneficial
\nholders of Shares and Preferred Shares. Except for such steps as are necessary
\nto disseminate the Offer Documents and any other documents necessary to
\nconsummate the Mergers, Parent, Acquisition I and their affiliates, associates,
\nagents and advisors shall use the information contained in any such labels,
\nlistings and files only in connection with the Offer and the Mergers, and, if
\nthis Agreement shall be terminated, will deliver to the Company all copies of
\nsuch information then in their possession.<\/p>\n
7<\/p>\n
SECTION 1.3. Board of Directors and Committees; Section 14(f).
\n ———————————————— <\/p>\n
(a) Promptly upon the purchase by Holdco of Shares pursuant to the Offer
\nand from time to time thereafter, and subject to the last sentence of this
\nSection 1.3(a), Holdco shall be entitled to designate up to such number of
\ndirectors, rounded to the nearest whole number constituting at least a majority
\nof the directors, on the Company Board as will give Holdco representation on the
\nCompany Board equal to the product of the number of directors on the Company
\nBoard (giving effect to any increase in the number of directors pursuant to this
\nSection 1.3) and the percentage that such number of Shares so purchased bears to
\nthe total number of outstanding Shares, and the Company shall use all reasonable
\nefforts to, upon request by Holdco, promptly, at the Company’s election, either
\nincrease the size of the Company Board or secure the resignation of such number
\nof directors as is necessary to enable Holdco’s designees to be elected to the
\nCompany Board and to cause Holdco’s designees to be so elected. At such times,
\nthe Company will use its best efforts to cause persons designated by Holdco to
\nconstitute a majority of each committee of the Company Board, other than any
\ncommittee of the Company Board established to take action under this Agreement.
\nNotwithstanding the foregoing, the Company shall use all reasonable efforts to
\nensure that three of the members of the Company Board as of the date hereof
\nshall remain members of the Company Board until the Effective Time (as defined
\nin Section 2.2 hereof). If the number of directors who are members of the
\nCompany Board as of the date hereof is reduced below three prior to the
\nEffective Time, the remaining directors who are members of the Company Board as
\nof the date hereof (or if there is only one such director, that remaining
\ndirector) shall be entitled to designate a person (or persons) to fill such
\nvacancy (or vacancies).<\/p>\n
(b) The Company’s obligation to appoint designees to the Company Board
\nshall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
\nthereunder. The Company shall promptly take all action required pursuant to
\nsuch Section and Rule in order to fulfill its obligations under this Section 1.3
\nand shall include in the Schedule 14D-9 such information with respect to the
\nCompany and its officers and directors as is required under such Section and
\nRule in order to fulfill its obligations under this Section 1.3. Acquisition I
\nwill supply to the Company in writing and be solely responsible for any
\ninformation with respect to itself and its nominees, officers, directors and
\naffiliates required by such Section and Rule.<\/p>\n
(c) Following the election or appointment of Holdco’s designees pursuant
\nto this Section 1.3 and prior to the Effective Time, if there shall be any
\ndirectors of the Company who were directors as of the date hereof, any amendment
\nof this Agreement, any termination of this Agreement by the Company, any
\nextension by the Company of the time for the performance of any of the
\nobligations or other acts of Parent, Holdco or Acquisition I or waiver of any of
\nthe Company’s rights hereunder or other action adversely affecting the rights of
\nstockholders of the Company (other than Parent, Holdco or Acquisition I), will
\nrequire the concurrence of a majority of such directors.<\/p>\n
8<\/p>\n
ARTICLE 2<\/p>\n
THE MERGERS<\/p>\n
SECTION 2.1. The Mergers. Upon the terms and subject to the conditions
\n ———–
\nof this Agreement and in accordance with the DGCL, (a) immediately prior to the
\npurchase of Shares and Preferred Shares in the Offer and upon the terms and
\nsubject to the conditions set forth in the Northrop Merger Agreement in
\naccordance with Section 251(g) of the DGCL, Acquisition II shall be merged with
\nand into Parent in the Northrop Merger and (b) at the Effective Time,
\nAcquisition I shall be merged with and into the Company in the Litton Merger.
\nFollowing the Northrop Merger, Parent shall continue its corporate existence
\nunder the laws of the State of Delaware as the surviving corporation of the
\nNorthrop Merger (the “Northrop Surviving Corporation”) and a wholly owned
\nsubsidiary of Holdco and the separate corporate existence of Acquisition II
\nshall cease. Following the Litton Merger, the Company shall continue its
\ncorporate existence under the laws of the State of Delaware as the surviving
\ncorporation of the Litton Merger (the “Litton Surviving Corporation”) and a
\nsubsidiary of Holdco and the separate corporate existence of Acquisition I shall
\ncease.<\/p>\n
SECTION 2.2. Effective Time. The term “Effective Time” shall mean the
\n ————–
\ntime and date of the filing of a properly executed and certified certificate of
\nmerger relating to the Litton Merger with the Secretary of State of the State of
\nDelaware or such other time and date as is permissible in accordance with the
\nDGCL and as the Company and Parent may agree; provided, however, that, in any
\n ——– ——-
\nevent, the Effective Time shall not be prior to the Closing (as defined in
\nSection 2.3) and shall be as soon as practicable thereafter. The term “Northrop
\nEffective Time” shall mean the time and date of the filing of a properly
\nexecuted and certified certificate of merger relating to the Northrop Merger
\nwith the Secretary of State of the State of Delaware.<\/p>\n
SECTION 2.3. Closing of the Litton Merger. Unless this Agreement shall
\n —————————-
\nhave been terminated and the transactions contemplated herein shall have been
\nabandoned pursuant to Section 7.1, and subject to the satisfaction or waiver of
\nthe conditions set forth in Article 6, the closing of the Litton Merger (the
\n“Closing”) will take place at a time and on a date (the “Closing Date”) to be
\nspecified by the parties, which shall be no later than the second business day
\nafter satisfaction or valid waiver of the latest to occur of the conditions set
\nforth in Article 6 at the offices of Gibson, Dunn & Crutcher LLP, 333 South
\nGrand Avenue, Los Angeles, California 90071, unless another time, date or place
\nis agreed to in writing by the parties hereto.<\/p>\n
SECTION 2.4. Effects of the Mergers. The Mergers shall have the effects
\n ———————-
\nset forth in the DGCL.<\/p>\n
SECTION 2.5. Certificates of Incorporation and Bylaws.
\n —————————————- <\/p>\n
(a) The Restated Certificate of Incorporation of the Company in effect at
\nthe Effective Time shall be the Certificate of Incorporation of the Litton
\nSurviving Corporation until thereafter amended in accordance with applicable law
\nand such Restated Certificate of Incorporation; provided, however, that Article
\n ——– ——-
\nFourth, Section 1 of the Restated Certificate of Incorporation of the Company
\nshall be amended in its entirety to read as follows: “The <\/p>\n
9<\/p>\n
Corporation shall be authorized to issue 3,000,000 shares of Common Stock, par
\nvalue $1.00 per share, 600,000 shares of Preferred Stock, par value $5.00 per
\nshare and 1,000 shares of Preference Stock, par value $2.50 per share.” The
\nBylaws of the Company in effect at the Effective Time shall be the Bylaws of the
\nLitton Surviving Corporation until amended in accordance with applicable law,
\nthe Certificate of Incorporation of the Litton Surviving Corporation and such
\nBylaws.<\/p>\n
(b) In accordance with the Northrop Merger Agreement and Section 251(g) of
\nthe DGCL, the Certificate of Incorporation of the Northrop Surviving Corporation
\nimmediately following the Northrop Effective Time shall be substantially
\nidentical to the Certificate of Incorporation of Parent immediately prior to the
\nNorthrop Effective Time, except that the name of the Northrop Surviving
\nCorporation shall be changed to “Northrop Grumman Operating Corporation,” and a
\nprovision shall be added to the Certificate of Incorporation of the Northrop
\nSurviving Corporation requiring that any act or transaction by or involving the
\nNorthrop Surviving Corporation that requires the approval of the stockholders of
\nthe Northrop Surviving Corporation for its adoption shall, by specific reference
\nto Section 251(g), also require the approval of the stockholders of Holdco (or
\nany successor by merger), by the same vote as is required with respect to the
\nstockholders of the Northrop Surviving Corporation. The Bylaws of Parent in
\neffect at the Northrop Effective Time shall be the Bylaws of the Northrop
\nSurviving Corporation until amended in accordance with applicable law, the
\nCertificate of Incorporation of the Northrop Surviving Corporation and such
\nBylaws.<\/p>\n
(c) In accordance with the Northrop Merger Agreement and Section 251(g) of
\nthe DGCL, the Certificate of Incorporation and the Bylaws of Holdco immediately
\nfollowing the Northrop Effective Time will contain provisions identical to those
\nin the Certificate of Incorporation and Bylaws of Parent immediately prior to
\nthe Northrop Effective Time, except as otherwise permitted by Section 251(g) and
\nexcept that immediately after the Northrop Effective Time the name of Holdco
\nshall be changed to “Northrop Grumman Corporation.”<\/p>\n
SECTION 2.6. Directors. The directors of Acquisition I at the Effective
\n ———
\nTime shall be the initial directors of the Litton Surviving Corporation, each to
\nhold office in accordance with the Certificate of Incorporation and Bylaws of
\nthe Litton Surviving Corporation until such director’s successor is duly elected
\nor appointed and qualified. The directors of Parent at the Northrop Effective
\nTime shall be the initial directors of the Northrop Surviving Corporation, each
\nto hold office in accordance with the Certificate of Incorporation and Bylaws of
\nthe Northrop Surviving Corporation until such director’s successor is duly
\nelected or appointed and qualified. In accordance with the Northrop Merger
\nAgreement and Section 251(g) of the DGCL, the directors of Parent at the
\nNorthrop Effective Time shall be the initial directors of Holdco, each to hold
\noffice in accordance with the Certificate of Incorporation and Bylaws of Holdco
\nuntil such director’s successor is duly elected or appointed and qualified.<\/p>\n
SECTION 2.7. Officers. The officers of the Company at the Effective Time
\n ——–
\nshall be the initial officers of the Litton Surviving Corporation, each to hold
\noffice in accordance with the Certificate of Incorporation and Bylaws of the
\nLitton Surviving Corporation until such officer’s successor is duly elected or
\nappointed and qualified. The officers of Parent at the Northrop Effective Time
\nshall be the initial officers of the Northrop Surviving Corporation, each to
\nhold <\/p>\n
10<\/p>\n
office in accordance with the Certificate of Incorporation and Bylaws of the
\nNorthrop Surviving Corporation until such officer’s successor is duly elected or
\nappointed and qualified. In accordance with the Northrop Merger Agreement and
\nSection 251(g) of the DGCL, the officers of Parent at the Northrop Effective
\nTime shall be the initial officers of Holdco, each to hold office in accordance
\nwith the Certificate of Incorporation and Bylaws of Holdco until such officer’s
\nsuccessor is duly elected or appointed and qualified.<\/p>\n
SECTION 2.8. Conversion of Shares in the Litton Merger.
\n —————————————– <\/p>\n
(a) At the Effective Time, each Share held by the Company as treasury
\nstock, held by any subsidiary of the Company, or owned by Holdco or any of its
\nsubsidiaries, immediately prior to the Effective Time shall be canceled, and no
\npayment shall be made with respect thereto. Unless the context otherwise
\nrequires, each reference in this Agreement to the Shares shall include the
\nassociated Rights.<\/p>\n
(b) At the Effective Time, each share of common stock of Acquisition I
\noutstanding immediately prior to the Effective Time shall be converted into and
\nbecome one share of common stock of the Litton Surviving Corporation with the
\nsame rights, powers and privileges as the shares so converted and shall
\nconstitute the only outstanding shares of capital stock of the Litton Surviving
\nCorporation (other than as contemplated by Section 2.8(d)).<\/p>\n
(c) At the Effective Time, except as otherwise provided in Sections 2.8(a)
\nor 2.11, each Share issued and outstanding immediately prior to the Effective
\nTime, shall be converted into the right to receive an amount of cash equal to
\nthe Per Share Amount, without interest (the “Merger Consideration”).<\/p>\n
(d) At the Effective Time, each issued and outstanding Preferred Share
\n(other than any such shares held by Holdco, which shares shall be cancelled at
\nthe Effective Time) shall remain outstanding, without any change, as a share of
\nthe Series B $2 Cumulative Preferred Stock, par value $5.00 per share of the
\nLitton Surviving Corporation.<\/p>\n
SECTION 2.9. Payment of Merger Consideration in the Litton Merger.
\n —————————————————- <\/p>\n
(a) From time to time following the Effective Time, as necessary to
\nsatisfy the requirements of Section 2.9(b), Parent and Holdco shall deliver to
\nsuch agent or agents as may be appointed by Parent and Holdco and reasonably
\nsatisfactory to the Company (the “Payment Agent”) for the benefit of the holders
\nof Shares, in cash the aggregate amount necessary to pay the Merger
\nConsideration (such cash hereinafter referred to as the “Merger Fund”) payable
\nand issuable pursuant to Section 2.8 in exchange for outstanding Shares.<\/p>\n
(b) As soon as reasonably practicable after the Effective Time, the
\nPayment Agent shall mail to each holder of record of a certificate or
\ncertificates which immediately prior to the Effective Time represented
\noutstanding Shares (the “Certificates”) whose shares were converted into the
\nright to receive the Merger Consideration pursuant to Section 2.8: (i) a letter
\nof transmittal (which shall specify that delivery shall be effected and risk of
\nloss and title to the Certificates shall pass only upon delivery of the
\nCertificates to the Payment Agent and shall be in<\/p>\n
11<\/p>\n
such form and have such other provisions as Parent and the Company may
\nreasonably specify) and (ii) instructions for use in effecting the surrender of
\nthe Certificates in exchange for the Merger Consideration. Upon surrender of a
\nCertificate for cancellation to the Payment Agent together with such letter of
\ntransmittal duly executed, the holder of such Certificate shall be entitled to
\nreceive in exchange therefor a check representing the Merger Consideration which
\nsuch holder has the right to receive pursuant to the provisions of this Article
\n2 and the Certificate so surrendered shall forthwith be canceled. In the event
\nof a transfer of ownership of Shares which is not registered in the transfer
\nrecords of the Company, payment of the Merger Consideration may be made to a
\ntransferee if the Certificate representing such Shares is presented to the
\nPayment Agent accompanied by all documents required to effect such transfer and
\nby evidence that any applicable stock transfer taxes have been paid. Until
\nsurrendered as contemplated by this Section 2.9, each Certificate shall be
\ndeemed at any time after the Effective Time to represent only the right to
\nreceive upon such surrender the Merger Consideration as contemplated by this
\nSection 2.9. Holders of Shares in book-entry form will be entitled to receive
\nupon delivery to the Paying Agent of a properly completed letter of transmittal,
\nthe Merger Consideration payable for each Share held by such holders in book-
\nentry form.<\/p>\n
(c) In the event that any Certificate for Shares shall have been lost,
\nstolen or destroyed, the Payment Agent shall issue in exchange therefor, upon
\nthe making of an affidavit of that fact by the holder thereof, such Merger
\nConsideration as may be required pursuant to this Agreement; provided, however,
\n ——– ——-
\nthat Parent or its Payment Agent may, in its discretion, require the delivery of
\na suitable bond or indemnity up to the maximum amount of the Merger
\nConsideration to be paid.<\/p>\n
(d) All Merger Consideration paid upon the surrender for exchange of
\nShares in accordance with the terms hereof shall be deemed to have been paid in
\nfull satisfaction of all rights pertaining to such Shares; subject, however, to
\nthe Litton Surviving Corporation’s obligation to pay any dividends or make any
\nother distributions with a record date prior to the Effective Time which may
\nhave been declared or made by the Company on such Shares in accordance with the
\nterms of this Agreement, or prior to the date hereof and which remain unpaid at
\nthe Effective Time, and there shall be no further registration of transfers on
\nthe stock transfer books of the Litton Surviving Corporation of the Shares which
\nwere outstanding immediately prior to the Effective Time. If after the Effective
\nTime Certificates are presented to the Litton Surviving Corporation for any
\nreason, they shall be canceled and exchanged as provided in this Article 2.<\/p>\n
(e) Any portion of the Merger Fund which remains undistributed to the
\nstockholders of the Company for six months after the Effective Time shall be
\ndelivered to Holdco upon demand and any stockholders of the Company who have not
\ntheretofore complied with this Article 2 shall thereafter look only to Holdco
\nfor payment of their claim for the Merger Consideration.<\/p>\n
(f) Neither Holdco nor the Company shall be liable to any holder of Shares
\nfor cash from the Merger Fund delivered to a public official pursuant to any
\napplicable abandoned property, escheat or similar law.<\/p>\n
12<\/p>\n
SECTION 2.10. Stock Options in the Litton Merger.
\n ———————————- <\/p>\n
(a) As of the Effective Time, each outstanding option to purchase Shares
\nthat has been granted by the Company (a “Company Stock Option” or collectively
\n“Company Stock Options”) that is then vested (an “A Option”) shall be converted
\ninto the right to receive a cash payment in accordance with the terms of this
\nSection 2.10(a). All plans or agreements pursuant to which any Company Stock
\nOption or Share of restricted stock (“Restricted Stock”) or deferred stock unit
\nhas been issued or may be issued are referred to collectively as the “Company
\nPlans.” Immediately following the Effective Time, Holdco shall pay, or cause
\nLitton Surviving Corporation to pay, to each holder of an A Option, in
\ncancellation of such A Option, an amount of cash equal to (x) the excess of (i)
\nthe Cash Consideration over (ii) the per-share exercise price of such Company
\nStock Option times (y) the number of Shares subject to such Company Stock
\nOption, subject to all required tax withholding.<\/p>\n
(b) As of the Effective Time and subject to Section 2.10(c), Holdco shall
\nconvert each outstanding Company Stock Option that is not an A Option (a “B
\nOption”) into an option to purchase shares of Holdco Common Stock in accordance
\nwith the terms of this Section 2.10(b). Each B Option shall be deemed to
\nconstitute an option to acquire, on the same terms and conditions as were
\napplicable under such B Option, a number of shares of Holdco Common Stock (the
\n“New Share Number”) equal to the number of Shares subject to such B Option
\ntimes the Common Stock Consideration at a price per share equal to the aggregate
\nexercise price of such B Option divided by the New Share Number; provided,
\n ——–
\nhowever, that in the case of any B Option to which Section 421 of the Code
\n——-
\napplies by reason of its qualification under Section 422 of the Code (“incentive
\nstock options”) the option price, the number of shares purchasable pursuant to
\nsuch option and the terms and conditions of exercise of such option shall be
\ndetermined in order to comply with Section 424(a) of the Code.<\/p>\n
(c) Holdco’s conversion of B Options in accordance with Section 2.10(b)
\nshall only apply to 1,244,523 unvested options as disclosed by the Company as of
\nJanuary 12, 2001. Any B Options in excess of such 1,244,523 options shall be
\nconverted (on a pro rata basis applicable to all B Options) into a right to
\nreceive a cash payment in accordance with Section 2.10(a).<\/p>\n
(d) Holdco shall have the option to provide the holders of A Options, and
\nthe holders of B Options to the extent applicable B Options are subject to the
\nconversion set forth in Section 2.10(c), the opportunity to elect, before the
\nEffective Time, to have some or all of their A Options or B Options, as the case
\nmay be, to be instead converted into options to acquire Holdco Common Stock
\npursuant to Section 2.10(b), as if they were B Options; provided, that, if
\n ——–
\nHoldco elects to provide optionholders the election provided for herein, A
\nOptions and B Options shall be converted into options to acquire Holdco Common
\nStock on a pro rata basis pursuant to this Section 2.10(d) only to the extent
\nthat such conversion would not, separately or together with the other
\ntransactions contemplated by this Agreement, require a vote of Parent or Holdco
\nstockholders pursuant to applicable law or the rules of any national securities
\nexchange.<\/p>\n
(e) It is acknowledged and agreed that each share of Restricted Stock that
\nis outstanding immediately prior to the consummation of the Offer will vest (and
\nall restrictions will lapse) upon the consummation of the Offer and all deferred
\nstock units will become <\/p>\n
13<\/p>\n
immediately due and payable upon consummation of the Offer. Therefore holders of
\nsuch Restricted Stock shall thereupon be entitled to receive the Merger
\nConsideration in the Merger as set forth in Section 2.9.<\/p>\n
(f) As soon as practicable after the Effective Time, Holdco shall deliver
\nto the holders of B Options appropriate notices setting forth such holders’
\nrights pursuant to the Company Plan and that the agreements evidencing the
\ngrants of such B Options shall continue in effect on the same terms and
\nconditions (subject to the adjustments required by this Section 2.10 after
\ngiving effect to the Litton Merger). Holdco shall comply with the terms of the
\nCompany Plans and ensure, to the extent required by and subject to the
\nprovisions of such Plans, that B Options which qualified as incentive stock
\noptions prior to the Effective Time continue to qualify as incentive stock
\noptions of Holdco after the Effective Time.<\/p>\n
(g) Holdco shall take all corporate action necessary to reserve for
\nissuance a sufficient number of shares of Holdco Common Stock for delivery upon
\nexercise of B Options assumed in accordance with Section 2.10(b). At the
\nEffective Time, Holdco shall file a registration statement on Form S-8 (or any
\nsuccessor or other appropriate forms) with respect to the shares of Holdco
\nCommon Stock subject to any options held by persons who are or were directors,
\nofficers or employees of the Company or its subsidiaries and shall use its best
\nefforts to maintain the effectiveness of such registration statement or
\nregistration statements (and maintain the current status of the prospectus or
\nprospectuses contained therein) for so long as such options remain outstanding.<\/p>\n
(h) At or before the Effective Time, the Company shall cause to be
\neffected any necessary amendments to the Company Plans to give effect to the
\nforegoing provisions of this Section 2.10.<\/p>\n
SECTION 2.11. Dissenting Shares in the Litton Merger. Shares outstanding
\n ————————————–
\nimmediately prior to the Effective Time and held by a holder who has neither
\nvoted in favor of the Litton Merger nor consented thereto in writing and who
\nshall have demanded appraisal for such Shares in accordance with the DGCL
\n(“Dissenting Shares”) shall not be converted into a right to receive the Merger
\nConsideration, unless such holder fails to perfect, withdraws or otherwise loses
\nits right to appraisal. If, after the Effective Time, such holder fails to
\nperfect, withdraws or loses its right to appraisal, such Shares shall be treated
\nas if they had been converted as of the Effective Time into a right to receive
\nthe Cash Consideration. The Company shall give Parent prompt notice of any
\ndemands received by the Company for appraisal of Shares. Except as required by
\napplicable law or with the prior written consent of Parent, the Company shall
\nnot make any payment with respect to, or settle or offer to settle, any such
\ndemands.<\/p>\n
SECTION 2.12. Conversion of Shares and Other Matters in the Northrop
\n ——————————————————
\nMerger. All matters pertaining to the conversion of outstanding capital stock,
\n——
\nand associated rights, of Parent into capital stock and associated rights of
\nHoldco in the Northrop Merger shall be governed by the terms and provisions of
\nthe Northrop Merger Agreement and Section 251(g) and other applicable provisions
\nof the DGCL.<\/p>\n
14<\/p>\n
ARTICLE 3<\/p>\n
REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n
Except as publicly disclosed by the Company in the Company SEC Reports and
\nexcept as set forth on the Disclosure Schedule (it being agreed that disclosure
\nof any item in such schedules shall be deemed disclosure with respect to any
\nsection of this Agreement to which the relevance of such item is apparent)
\npreviously delivered by the Company to Parent (the “Company Disclosure
\nSchedule”), the Company hereby represents and warrants to each of Parent,
\nHoldco and Acquisition I as follows:<\/p>\n
SECTION 3.1. Organization and Qualification; Subsidiaries.
\n ——————————————– <\/p>\n
(a) Section 3.1 of the Company Disclosure Schedule identifies each
\nsubsidiary of the Company as of the date of the Original Agreement and its
\nrespective jurisdiction of incorporation or organization, as the case may be.
\nEach of the Company and its subsidiaries is duly organized, validly existing and
\nin good standing under the laws of the jurisdiction of its incorporation or
\norganization and has all requisite corporate power and authority to own, lease
\nand operate its properties and to carry on its businesses as now being
\nconducted. The Company has heretofore delivered to Acquisition I or Parent
\naccurate and complete copies of the Certificate of Incorporation and Bylaws (or
\nsimilar governing documents), as currently in effect, of the Company and its
\nsubsidiaries.<\/p>\n
(b) Each of the Company and its subsidiaries is duly qualified or licensed
\nand in good standing to do business in each jurisdiction in which the property
\nowned, leased or operated by it or the nature of the business conducted by it
\nmakes such qualification or licensing necessary, except in such jurisdictions
\nwhere the failure to be so duly qualified or licensed and in good standing would
\nnot have a Company Material Adverse Effect. The term “Company Material Adverse
\nEffect” means any changes or effects that, individually or in the aggregate,
\nare materially adverse to the business, assets, long-term earning capacity or
\nfinancial condition of the Company and its subsidiaries, taken as whole, other
\nthan any changes or effects arising out of (i) general economic conditions, (ii)
\nconditions generally affecting industries in which the Company operates, (iii)
\nthe financial markets or (iv) the entering into or the public announcement or
\ndisclosure of this Agreement or the transactions contemplated hereby.<\/p>\n
SECTION 3.2. Capitalization of the Company and its Subsidiaries.
\n ————————————————– <\/p>\n
(a) The authorized capital stock of the Company consists of (i) 120
\nmillion Shares, of which, as of November 30, 2000, 45,518,647 Shares were issued
\nand outstanding, excluding 2,734,083 Shares held in the Company’s treasury,
\n(each together with a Share purchase right (the “Rights”) issued pursuant to the
\nStockholder Rights Plan dated as of August 17, 1994 (the “Rights Plan”) between
\nthe Company and The Bank of New York, as Rights Agent), (ii) 22 million shares
\nof preferred stock, par value $5.00 per share, of which, as of November 30,
\n2000, 410,643 Preferred Shares were issued and outstanding and 150,000 shares
\nwere designated as Series A Participating Preferred Stock and were reserved for
\nissuance under the Rights Plan and (iii) 8 million shares of preference stock,
\npar value $2.50 per share, no shares of which are<\/p>\n
15<\/p>\n
outstanding. All of the outstanding Shares have been validly issued and are
\nfully paid, nonassessable and free of preemptive rights. As of November 30,
\n2000, 5,194,720 Shares were reserved for issuance pursuant to outstanding
\nCompany Stock Options. Between August 1, 2000 and the date of the Original
\nAgreement, no shares of the Company’s capital stock have been issued other than
\npursuant to Company Stock Options already in existence on the date of the
\nOriginal Agreement, and between August 1, 2000 and the date of the Original
\nAgreement no stock options have been granted. Except (i) as set forth above,
\n(ii) for 168,786 Shares issuable pursuant to performance-based restricted stock
\nor deferred stock units and (iii) for the Rights, as of November 30, 2000, there
\nwere outstanding (A) no shares of capital stock or other voting securities of
\nthe Company, (B) no securities of the Company or its subsidiaries convertible
\ninto or exchangeable for shares of capital stock or voting securities of the
\nCompany, (C) no options or other rights to acquire from the Company or its
\nsubsidiaries and, no obligations of the Company or its subsidiaries to issue any
\ncapital stock, voting securities or securities convertible into or exchangeable
\nfor capital stock or voting securities of the Company and (D) no equity
\nequivalent interests in the ownership or earnings of the Company or its
\nsubsidiaries (collectively “Company Securities”). As of the date of the
\nOriginal Agreement, there are no outstanding obligations of the Company or its
\nsubsidiaries to repurchase redeem or otherwise acquire any Company Securities.
\nThere are no stockholder agreements, voting trusts or other agreements or
\nunderstandings to which the Company is a party or by which it is bound relating
\nto the voting or registration of any shares of capital stock of the Company.<\/p>\n
(b) All of the outstanding capital stock of the Company’s subsidiaries
\n(other than director’s qualifying shares in the case of foreign subsidiaries) is
\nowned by the Company, or one of its subsidiaries, directly or indirectly, free
\nand clear of any material Lien or any other material limitation or restriction
\n(including any restriction on the right to vote or sell the same except as may
\nbe provided as a matter of law) and except for any Liens which are incurred in
\nthe ordinary course of business. There are no securities of the Company or its
\nsubsidiaries convertible into or exchangeable for, no options or other rights to
\nacquire from the Company or its subsidiaries and no other contract,
\nunderstanding, arrangement or obligation (whether or not contingent) providing
\nfor, the issuance or sale, directly or indirectly, by the Company or any of its
\nsubsidiaries of any capital stock or other ownership interests in or any other
\nsecurities of any subsidiary of the Company. There are no outstanding
\ncontractual obligations of the Company or its subsidiaries to repurchase, redeem
\nor otherwise acquire any outstanding shares of capital stock or other ownership
\ninterests in any subsidiary of the Company. For purposes of this Agreement,
\n“Lien” means, with respect to any asset (including without limitation any
\nsecurity), any mortgage, lien, pledge, charge, security interest or encumbrance
\nof any kind in respect of such asset.<\/p>\n
(c) The Shares and the Preferred Shares constitute the only classes of
\nequity securities of the Company or its subsidiaries registered or required to
\nbe registered under the Exchange Act.<\/p>\n
(d) The Company has amended the Rights Plan so that none of Parent, Holdco
\nor Acquisition I shall be deemed to be an Acquiring Person (as defined in the
\nRights Plan) as a result of the execution and delivery of this Agreement or
\nconsummation of the transactions contemplated hereby.<\/p>\n
16<\/p>\n
SECTION 3.3. Authority Relative to this Agreement; Recommendation.
\n —————————————————- <\/p>\n
(a) The Company has all necessary corporate power and authority to execute
\nand deliver this Agreement and to consummate the transactions contemplated
\nhereby. The execution and delivery of this Agreement by the Company and the
\nconsummation by the Company of the transactions contemplated hereby have been
\nduly and validly authorized by the Company Board and no other corporate
\nproceedings on the part of the Company are necessary to authorize this Agreement
\nor to consummate the transactions contemplated hereby except the approval and
\nadoption of this Agreement by the holders of a majority of the outstanding
\nShares and Preferred Shares, voting together as one class. This Agreement has
\nbeen duly and validly executed and delivered by the Company and, assuming due
\nauthorization, execution and delivery by Parent, Holdco and Acquisition I,
\nconstitutes a valid, legal and binding agreement of the Company enforceable,
\nagainst the Company in accordance with its terms.<\/p>\n
(b) The members of the Company Board present at a duly called meeting have
\nunanimously resolved to recommend that the stockholders of the Company approve
\nand adopt this Agreement.<\/p>\n
SECTION 3.4. SEC Reports; Financial Statements.
\n ——————————— <\/p>\n
(a) The Company has filed all required forms, reports and documents
\n(“Company SEC Reports”) with the SEC since October 1, 1997, each of which has
\ncomplied in all material respects with all applicable requirements of the
\nSecurities Act and the Exchange Act, each as in effect on the dates such forms,
\nreports and documents were filed. None of such Company SEC Reports, including,
\nwithout limitation, any financial statements or schedules included or
\nincorporated by reference therein, contained when filed any untrue statement of
\na material fact or omitted to state a material fact required to be stated or
\nincorporated by reference therein, or necessary, in order to make the statements
\ntherein in light of the circumstances under which they were made, not
\nmisleading. The audited consolidated financial statements of the Company
\nincluded in the Company SEC Reports and the unaudited financial statements
\ncontained in the Company’s quarterly report on Form 10-Q for the quarter ended
\nOctober 31, 2000 have been prepared in accordance with generally accepted
\naccounting principles applied on a consistent basis (except as may be indicated
\nin the notes thereto), and fairly present in all material respects the
\nconsolidated financial position of the Company and its consolidated subsidiaries
\nas of the dates thereof and their consolidated results of operations and changes
\nin financial position for the periods then ended, except, in the case of
\nunaudited interim financial statements, for normal year-end audit adjustments
\nand the fact that certain information and notes have been condensed or omitted
\nin accordance with the applicable rules of the SEC.<\/p>\n
(b) The Company has heretofore made available or promptly will make
\navailable to Acquisition I or Parent a complete and correct copy of any
\namendments or modifications which are required to be filed with the SEC but have
\nnot yet been filed with the SEC to agreements, documents or other instruments
\nwhich previously had been filed by the Company with the SEC pursuant to the
\nExchange Act.<\/p>\n
17<\/p>\n
SECTION 3.5. Information Supplied. None of the information supplied or to
\n ——————–
\nbe supplied by the Company for inclusion or incorporation by reference in (i)
\nthe S-4 will, at the time the S-4 is filed with the SEC and at the time it
\nbecomes effective under the Securities Act, contain any untrue statement of a
\nmaterial fact or omit to state any material fact required to be stated therein
\nor necessary to make the statements made therein not misleading and (ii) the
\nproxy statement relating to the meeting of the Company’s stockholders to be held
\nin connection with the Litton Merger (the “Proxy Statement”) will, at the date
\nthe Proxy Statement is mailed to stockholders of the Company or at the time of
\nthe meeting of stockholders of the Company to be held in connection with the
\nLitton Merger, contain any untrue statement of a material fact or omit to state
\nany material fact required to be stated therein or necessary, in order to make
\nthe statements therein in light of the circumstances under which they are made,
\nnot misleading. The Proxy Statement insofar as it relates to the meeting of the
\nCompany’s stockholders to vote on the Litton Merger will comply as to form in
\nall material respects with the provisions of the Exchange Act and the rules and
\nregulations thereunder. None of the information supplied or to be supplied by
\nthe Company for inclusion or incorporation by reference in the Offer Documents
\nor provided by the Company in the Schedule 14D-9 will, at the respective times
\nthat the Offer Documents and the Schedule 14D-9 or any amendments or supplements
\nthereto are filed with the SEC and are first published or sent or given to
\nholders of Shares, contain any untrue statement of a material fact or omit to
\nstate any material fact required to be stated therein or necessary in order to
\nmake the statements therein, in light of the circumstances under which they were
\nmade, not misleading.<\/p>\n
SECTION 3.6. Consents and Approvals; No Violations. Except for filings,
\n ————————————-
\npermits, authorizations, consents and approvals as may be required under, and
\nother applicable requirements of, the Securities Act, the Exchange Act, state
\nsecurities or blue sky laws, the Hart-Scott-Rodino Antitrust Improvements Act of
\n1976, as amended (the “HSR Act”), foreign antitrust laws and the filing and
\nrecordation of the Merger Certificate as required by the DGCL, no filing with or
\nnotice to and no permit, authorization, consent or approval of any court or
\ntribunal, or administrative governmental or regulatory body, agency or authority
\n(a “Governmental Entity”) is necessary for the execution and delivery by the
\nCompany of this Agreement or the consummation by the Company of the transactions
\ncontemplated hereby, except where the failure to obtain such permits,
\nauthorizations, consents or approvals or to make such filings or give such
\nnotice would not have a Company Material Adverse Effect. Neither the execution,
\ndelivery and performance of this Agreement by the Company nor the consummation
\nby the Company of the transactions contemplated hereby will (a) conflict with or
\nresult in any breach of any provision of the respective Certificates of
\nIncorporation or Bylaws (or similar governing documents) of the Company or any
\nof its subsidiaries, (b) result in a violation or breach of or constitute (with
\nor without due notice or lapse of time or both) a default (or give rise to any
\nright of termination, amendment, cancellation or acceleration or Lien) under any
\nof the terms conditions or provisions of any note, bond, mortgage, indenture,
\nlease, license, contract, agreement or other instrument or obligation to which
\nthe Company or any of its subsidiaries is a party or by which any of them or any
\nof their respective properties or assets may be bound or (c) except as set forth
\nin Section 3.6 of the Company Disclosure Schedule, violate any order, writ,
\ninjunction, decree, law, statute, rule or regulation applicable to the Company
\nor any of its<\/p>\n
18<\/p>\n
subsidiaries or any of their respective properties or assets except, in the case
\nof (b) or (c), for violations breaches or defaults which would not have a
\nCompany Material Adverse Effect.<\/p>\n
SECTION 3.7. No Default. None of the Company or its subsidiaries is in
\n ———-
\nbreach, default or violation (and no event has occurred which with notice or the
\nlapse of time or both would constitute a breach default or violation) of any
\nterm, condition or provision of (a) its Certificate of Incorporation or Bylaws
\n(or similar governing documents), (b) any note, bond, mortgage, indenture,
\nlease, license, contract, agreement or other instrument or obligation to which
\nthe Company or any of its subsidiaries is now a party or by which any of them or
\nany of their respective properties or assets may be bound or (c) any order,
\nwrit, injunction, decree, law, statute, rule or regulation applicable to the
\nCompany or any of its subsidiaries or any of their respective properties or
\nassets except, in the case of (b) or (c), for violations, breaches or defaults
\nthat would not have a Company Material Adverse Effect.<\/p>\n
SECTION 3.8. Absence of Changes. Since July 31, 2000, there have been no
\n ——————
\nevents, changes or effects with respect to the Company or its subsidiaries that
\nwould have a Company Material Adverse Effect.<\/p>\n
SECTION 3.9. Litigation. There is no suit, claim, action, proceeding or
\n ———-
\ninvestigation pending or, to the knowledge of the Company, threatened against
\nthe Company or any of its subsidiaries or any of their respective properties or
\nassets before any Governmental Entity which would have a Company Material
\nAdverse Effect or would reasonably be expected to prevent or materially delay
\nthe consummation of the transactions contemplated by this Agreement. None of the
\nCompany or its subsidiaries is subject to any outstanding order, writ,
\ninjunction or decree of any Governmental Entity that would have a Company
\nMaterial Adverse Effect or would reasonably be expected to prevent or materially
\ndelay the consummation of the transactions contemplated hereby.<\/p>\n
SECTION 3.10. Compliance with Applicable Law. The Company and its
\n ——————————
\nsubsidiaries hold all permits, licenses, variances, exemptions, orders and
\napprovals from all Governmental Entities necessary for the lawful conduct of
\ntheir respective businesses (the “Company Permits”) except for failures to hold
\nsuch permits, licenses, variances, exemptions, orders and approvals which would
\nnot have a Company Material Adverse Effect. The Company and its subsidiaries are
\nin compliance with the terms of the Company Permits except where the failure so
\nto comply would not have a Company Material Adverse Effect. The businesses of
\nthe Company and its subsidiaries are not being conducted in violation of any
\nlaw, ordinance or regulation of any Governmental Entity, except that no
\nrepresentation or warranty is made in this Section 3.10 with respect to
\nEnvironmental Laws (as defined in Section 3.12 below) or any action or
\ncircumstance referred to in Section 3.16 and except for violations or possible
\nviolations which would not have a Company Material Adverse Effect. To the
\nknowledge of the Company, no investigation or review by any Governmental Entity
\nwith respect to the Company or its subsidiaries is pending or threatened nor has
\nany Governmental Entity indicated an intention to conduct the same, other than
\nsuch investigations or reviews as would not have a Company Material Adverse
\nEffect.<\/p>\n
19<\/p>\n
SECTION 3.11. Employee Benefit Plans; Labor Matters.
\n ————————————- <\/p>\n
(a) Section 3.11(a) of the Company Disclosure Schedule lists all material
\nemployee benefit plans (as defined in Section 3(3) of the Employee Retirement
\nIncome Security Act of 1974, as amended (“ERISA”)) and all material bonus,
\nstock option, stock purchase, incentive, deferred compensation, supplemental
\nretirement, severance and other similar fringe or employee benefit plans,
\nprograms or arrangements maintained or contributed to by the Company or any of
\nits subsidiaries for the benefit of or relating to any employee of the Company,
\nor any of its subsidiaries, excluding plans, programs, agreements and
\narrangements under which the Company has no remaining obligations, each
\nindividual agreement under which the Company’s future obligations and potential
\nobligations do not exceed $200,000 per year or $600,000 in the aggregate,
\npayroll practices, and any plans, programs, agreements and arrangements that are
\nrequired to be maintained by the Company or any of its subsidiaries under the
\nlaws of any foreign jurisdiction (together the “Employee Plans”), other than
\nthose referred to in Section 4(b)(4) of ERISA. The Company has made available to
\nParent a copy of the documents and instruments governing each such Employee Plan
\n(other than those referred to in Section 4(b)(4) of ERISA). No event has
\noccurred and, to the knowledge of the Company, there currently exists no
\ncondition or set of circumstances in connection with which the Company or any of
\nits subsidiaries would be subject to any material liability under the terms of
\nany Employee Plans, ERISA, the code or any other applicable law, including,
\nwithout limitation, any liability under Title IV of ERISA.<\/p>\n
(b) Section 3.11(b) of the Company Disclosure Schedule sets forth a list
\nof (i) all employment agreements with executive officers of the Company
\n(“Employment Agreements”); and (ii) all agreements with consultants who are
\nindividuals obligating the Company to make annual cash payments in an amount
\nexceeding $200,000. The Company has made available to Parent copies or
\ndescriptions of all such agreements.<\/p>\n
(c) There will be no material payment, accrual of additional benefits,
\nacceleration of payments or vesting in any benefit under any Employee Plan or
\nany agreement or arrangement disclosed under this Section 3.11 solely by reason
\nof entering into or in connection with the transactions contemplated by this
\nAgreement.<\/p>\n
(d) No Employee Plan that is a welfare benefit plan within the meaning of
\nSection 3(1) of ERISA (other than a plan covering only one individual employee
\nor former employee and his or her dependents) provides material benefits to
\nformer employees of the Company or its ERISA Affiliates other than pursuant to
\nSection 4980B of the Code.<\/p>\n
(e) There are no material controversies pending or, to the knowledge of
\nthe Company, threatened between the Company or any of its subsidiaries and any
\nof their respective employees. Section 3.11(e) of the Company Disclosure
\nSchedule lists each collective bargaining agreement or other labor union
\ncontract applicable to persons employed by the Company or its subsidiaries in
\nthe United States. The Company does not have knowledge of any material
\nactivities or proceedings of any labor union to organize any employees of the
\nCompany or its subsidiaries. The Company has no knowledge of any material
\nstrikes, slowdowns, work<\/p>\n
20<\/p>\n
stoppages, lockouts or threats thereof by or with respect to any employees of
\nthe Company or any of its subsidiaries.<\/p>\n
SECTION 3.12. Environmental Laws and Regulations.
\n ———————————- <\/p>\n
(a) (i) Each of the Company and its subsidiaries is in compliance with all
\napplicable federal, state, local and foreign laws and regulations relating to
\npollution or protection of human health or the environment (including, without
\nlimitation, ambient air, surface water, ground water, land surface or subsurface
\nstrata) (collectively “Environmental Laws”), except for non-compliance that
\nwould not have a Company Material Adverse Effect, which compliance includes but
\nis not limited to, the possession by the Company and its subsidiaries of all
\nmaterial permits and other material authorizations by Governmental Entities
\nrequired under applicable Environmental Laws and compliance with the terms and
\nconditions thereof; and (ii) none of the Company or its subsidiaries has
\nreceived written notice of or, to the knowledge of the Company, is the subject
\nof any action, cause of action, claim, investigation, demand or notice by any
\nperson or entity alleging liability under or non-compliance with any
\nEnvironmental Law (an “Environmental Claim”) that would have a Company Material
\nAdverse Effect.<\/p>\n
(b) Except as disclosed in the Company SEC Reports, there are no
\nEnvironmental Claims that would have a Company Material Adverse Effect that are
\npending or, to the knowledge of the Company, threatened against the Company or
\nits subsidiaries or, to the knowledge of the Company, against any person or
\nentity whose liability for any Environmental Claim the Company or any of its
\nsubsidiaries has or may have retained or assumed either contractually or by
\noperation of law.<\/p>\n
SECTION 3.13 Taxes.
\n —– <\/p>\n
(a) Definitions. For purposes of this Agreement:
\n ———– <\/p>\n
(i) the term “Income Tax” shall mean any federal, state, local
\nor foreign Tax (A) based upon, measured by, or calculated with respect to net
\nincome or profits (including capital gains Taxes, alternative minimum Taxes and
\nTaxes on items of Tax preference), or (B) based upon, measured by, or calculated
\nwith respect to multiple bases (including corporate franchise Taxes), if one or
\nmore of the principal bases on which such Tax may be based, measured by, or
\ncalculated with respect to is described in clause (A).<\/p>\n
(ii) the term “Tax” (including “Taxes”) means (A) all federal,
\nstate, local, foreign and other net income, gross income, gross receipts, sales,
\nuse, ad valorem, transfer, franchise, profits, license, lease, service, service
\nuse, withholding, estimated, payroll, employment, excise, severance, stamp,
\noccupation, premium, property, windfall profits, customs, duties or other taxes,
\nfees, assessments or charges of any kind whatsoever, together with any interest
\nand any penalties, additions to tax or additional amounts with respect thereto,
\n(B) any liability for payment of amounts described in clause (A) whether as a
\nresult of transferee liability, of being a member of an affiliated,
\nconsolidated, combined or unitary group for any period, or otherwise through
\noperation of law, and (C) any liability for the payment of amounts<\/p>\n
21<\/p>\n
described in clauses (A) or (B) as a result of any tax sharing, tax indemnity or
\ntax allocation agreement or any other express or implied agreement to indemnify
\nany other person; and<\/p>\n
(iii) the term “Tax Return” means any return, declaration,
\nreport, statement, information statement and other document required to be filed
\nwith respect to Taxes.<\/p>\n
(b) The Company and its subsidiaries have timely filed (taking into
\naccount extensions) all material Income Tax Returns they are required to have
\nfiled. All Income Tax Returns filed by the Company and its subsidiaries are
\naccurate and correct in all material respects.<\/p>\n
(c) Except as disclosed in the Company SEC Reports, the Company and its
\nsubsidiaries have timely paid all material Income Taxes that have become due or
\npayable (other than Taxes being contested in good faith and for which adequate
\nreserves have been established) and have adequately reserved for in accordance
\nwith generally accepted accounting principles all material Income Taxes (whether
\nor not shown on any Tax Return) that have accrued but are not yet due or
\npayable.<\/p>\n
(d) Except as set forth in the Company SEC Reports, no claim for
\nassessment or collection of material Income Taxes is presently being asserted
\nagainst the Company or its subsidiaries and there is no presently pending audit
\nexamination, refund claim, litigation, proceeding, proposed adjustment or matter
\nin controversy with respect to any material Income Taxes due and owing by the
\nCompany or any of its subsidiaries.<\/p>\n
(e) Neither the Company nor any subsidiary of the Company has filed any
\nwaiver of the statute of limitations applicable to the assessment or collection
\nof any federal Income Tax which remains open.<\/p>\n
(f) Neither the Company nor any subsidiary of the Company is a party to
\nany tax indemnity agreement, tax sharing agreement, or other agreement under
\nwhich it reasonably expects to become liable to another person as a result of
\nthe imposition of a material Income Tax upon any person, or the assessment or
\ncollection of such a Tax.<\/p>\n
(g) The Company and each of its subsidiaries have complied in all material
\nrespects with all rules and regulations relating to the withholding of federal
\nIncome Taxes.<\/p>\n
(h) The representations contained in subparagraphs (b) through (d) and
\nsubparagraph (g) hereof are true and correct with respect to all Taxes other
\nthan Income Taxes and all Tax Returns with respect to Taxes other than Income
\nTaxes, as applicable, except for such failures that would not have a Company
\nMaterial Adverse Effect.<\/p>\n
22<\/p>\n
(i) Neither the Company nor any of its subsidiaries is a party to any
\nagreement, contract, arrangement or plan that has resulted or would result,
\nseparately or in the aggregate, in connection with this Agreement or any change
\nof control of the Company or any of its subsidiaries, in the payment of any
\n“excess parachute payments” within the meaning of Section 280G of the Code.<\/p>\n
SECTION 3.14. Intellectual Property; Software.
\n ——————————- <\/p>\n
(a) Each of the Company and its subsidiaries owns or possesses adequate
\nlicenses or other valid rights to use all existing United States and foreign
\npatents, trademarks, trade names, service marks, copyrights, trade secrets and
\napplications therefor owned or used by the Company and its subsidiaries (the
\n“Company Intellectual Property Rights”), except where the failure to own or
\npossess valid rights to use such Company Intellectual Property Rights would not
\nhave a Company Material Adverse Effect.<\/p>\n
(b) Except for any of the following which would not have a Company
\nMaterial Adverse Effect:<\/p>\n
(i) the validity of the Company Intellectual Property Rights and
\nthe title thereto of the Company or any subsidiary, as the case may be, is not
\nbeing questioned in any litigation to which the Company or any subsidiary is a
\nparty, and<\/p>\n
(ii) the conduct of the business of the Company and its
\nsubsidiaries as now conducted does not, to the knowledge of the Company,
\ninfringe any valid patents, trademarks, trade names, service marks or copyrights
\nof others. To the knowledge of the Company, the consummation of the transactions
\ncontemplated by this Agreement will not result in the loss or impairment of any
\nCompany Intellectual Property Rights.<\/p>\n
SECTION 3.15. Government Contracts.
\n ——————– <\/p>\n
(a) Except as disclosed in Section 3.9 or Section 3.15 of the Company
\nDisclosure Schedule, to the knowledge of the Company, with respect to its
\nGovernment Contracts, there is, as of the date of the Original Agreement, no (i)
\ncivil fraud or criminal investigation by any Governmental Entity that would have
\na Company Material Adverse Effect, (ii) suspension or debarment proceeding (or
\nequivalent proceeding) against the Company or any of its subsidiaries that would
\nhave a Company Material Adverse Effect, (iii) request by the U.S. Government for
\na contract price adjustment based on a claimed disallowance by the Defense
\nContract Audit Agency or claim of defective pricing in excess of $40 million,
\n(iv) dispute between the Company or any of its subsidiaries and the U.S.
\nGovernment which, since August 1, 2000, has resulted in a government contracting
\nofficer’s determination and finding final decision where the amount in
\ncontroversy exceeds or is expected to exceed $40 million or (v) claim or
\nequitable adjustment by the Company or any of its subsidiaries against the U.S.
\nGovernment in excess of $40 million.<\/p>\n
(b) For the purposes of this Agreement, with respect to any party,
\n“Government Contract” means any prime contract, subcontract, teaming agreement
\nor arrangement, joint venture, basic ordering agreement, letter contract,
\npurchase order, delivery order, Bid, change<\/p>\n
23<\/p>\n
order, arrangement or other commitment of any kind relating to the business of
\nsuch party between such party and (i) the U.S. Government or (ii) any prime
\ncontractor to the U.S. Government. For the purposes of this Agreement, with
\nrespect to any party, “Bid” means any quotation, bid or proposal by such party
\nor any of its affiliates which, if accepted or awarded, would lead to a Contract
\nwith the U.S. Government or any prime contractor to the U.S. Government, for the
\ndesign, manufacture or sale of products or the provision of services by such
\nparty. For the purposes of this Agreement, with respect to any party,
\n“Contracts” means all contracts, agreements, leases (including leases of real
\nproperty), licenses, commitments, sales and purchase orders, intercompany work
\ntransfer agreements (with respect to work by or for another or such party’s
\nbusinesses) and other instruments of any kind, whether written or oral.<\/p>\n
SECTION 3.16. Certain Business Practices. To the knowledge of the Company,
\n ————————–
\nnone of the Company, any of its subsidiaries or any directors, officers, agents
\nor employees of the Company or any of its subsidiaries has (i) used any funds
\nfor unlawful contributions, gifts, entertainment or other unlawful expenses
\nrelated to political activity, (ii) made any unlawful payment to foreign or
\ndomestic government officials or employees or to foreign or domestic political
\nparties or campaigns or violated any provision of the Foreign Corrupt Practices
\nAct of 1977, as amended, or (iii) made any other unlawful payment, which in any
\nevent would be material to the Company.<\/p>\n
SECTION 3.17. Vote Required. The affirmative vote of the holders of a
\n ————-
\nmajority of the outstanding Shares and Preferred Shares, voting together as one
\nclass, is the only vote of the holders of any class or series of the Company’s
\ncapital stock necessary to approve and adopt this Agreement.<\/p>\n
SECTION 3.18. Opinion of Financial Adviser. Merrill Lynch & Co. (the
\n —————————-
\n“Company Financial Adviser”) has delivered to the Company Board its written
\nopinion dated the date of this Agreement to the effect that as of such date the
\nconsideration to be received by the holders of Shares in the Offer and the
\nLitton Merger is fair to the holders of Shares from a financial point of view.<\/p>\n
SECTION 3.19. Brokers. No broker, finder or investment banker (other than
\n ——-
\nthe Company Financial Adviser, a true and correct copy of whose engagement
\nagreement has been provided to Acquisition I or Parent) is entitled to any
\nbrokerage, finder’s or other fee or commission in connection with the
\ntransactions contemplated by this Agreement based upon arrangements made by or
\non behalf of the Company.<\/p>\n
SECTION 3.20. Problems with Customers. Except as provided in Schedule 3.20
\n ———————–
\nof the Company Disclosure Schedule, from July 31, 2000 to the date of the
\nOriginal Agreement: (a) no customer of the Company or any of its subsidiaries
\nhas canceled or otherwise terminated its relationship with the Company or any of
\nits subsidiaries, except cancellations and terminations that would not have a
\nCompany Material Adverse Effect; (b) to the knowledge of the Company, no
\ncustomer of the Company or any of its subsidiaries has overtly threatened to
\ncancel or otherwise terminate its relationship with the Company or any of its
\nsubsidiaries or its usage of the services of the Company or any of its
\nsubsidiaries, except cancellations and terminations that would not have a
\nCompany Material Adverse Effect; and (c) the Company and its subsidiaries<\/p>\n
24<\/p>\n
have no direct or indirect ownership interest that is material to the Company
\nand its subsidiaries taken as a whole in any customer of the Company or any of
\nits subsidiaries.<\/p>\n
ARTICLE 4<\/p>\n
REPRESENTATIONS AND WARRANTIES
\n OF PARENT, HOLDCO AND ACQUISITION I<\/p>\n
Except as publicly disclosed by Parent in the Parent SEC Reports and except
\nas set forth on the Disclosure Schedule (it being agreed that disclosure of any
\nitem in such schedules shall be deemed disclosure with respect to any section of
\nthis Agreement to which the relevance of such item is apparent) previously
\ndelivered by Parent to the Company (the “Parent Disclosure Schedule”), Parent,
\nHoldco and Acquisition I hereby represent and warrant to the Company as follows:<\/p>\n
SECTION 4.1. Organization.
\n ———— <\/p>\n
(a) Each of Parent, Holdco and Acquisition I is duly organized, validly
\nexisting and in good standing under the laws of the State of Delaware and has
\nall requisite corporate power and authority to own, lease and operate its
\nproperties and to carry on its businesses as now being conducted. Parent has
\nheretofore delivered to the Company accurate and complete copies of the
\nCertificate of Incorporation and Bylaws as currently in effect of Parent, Holdco
\nand Acquisition I.<\/p>\n
(b) Each of Parent, Holdco and Acquisition I is duly qualified or licensed
\nand in good standing to do business in each jurisdiction in which the property
\nowned, leased or operated by it or the nature of the business conducted by it
\nmakes such qualification or licensing necessary, except in such jurisdictions
\nwhere the failure to be so duly qualified or licensed and in good standing would
\nnot have a Parent Material Adverse Effect. The term “Parent Material Adverse
\nEffect” means any changes or effects that, individually or in the aggregate,
\nare materially adverse to the business, assets, long-term earning capacity or
\nfinancial condition of Parent and its subsidiaries, taken as whole, other than
\nany changes or effects arising out of (i) general economic conditions, (ii)
\nconditions generally affecting industries in which Parent operates, (iii) the
\nfinancial markets or (iv) the entering into or the public announcement or
\ndisclosure of this Agreement or the transactions contemplated hereby<\/p>\n
SECTION 4.2. Capitalization of Parent and its Subsidiaries.
\n ——————————————— <\/p>\n
(a) The authorized capital stock of Parent consists of 200,000,000 shares
\nof Parent Common Stock, of which, as of September 30, 2000, 71,725,672 shares of
\nParent Common Stock were issued and outstanding (each together with a right to
\npurchase preferred stock of Parent (the “Parent Rights”) issued pursuant to the
\nRights Agreement between Parent and Chase Mellon Shareholder Services, L.L.C.,
\ndated as of September 23, 1998 and 10,000,000 shares of preferred stock, $1.00
\npar value per share, none of which are outstanding. All of the outstanding
\nshares of Parent Common Stock have been validly issued and are fully paid,
\nnonassessable and free of preemptive rights. As of September 30, 2000, (X)
\n4,707,506 shares of Parent Common<\/p>\n
25<\/p>\n
Stock were reserved for issuance and issuable upon or otherwise deliverable in
\nconnection with the exercise of outstanding options and (Y) there were 255,451
\nshares of Parent Common Stock subject to Parent Restricted Stock Rights and up
\nto 1,168,512 shares of Parent Common Stock issuable under Parent Restricted
\nPerformance Stock Rights outstanding. Between September 30, 2000 and the date
\nhereof, no shares of Parent’s capital stock have been issued other than pursuant
\nto stock options already in existence on such date and except for grants of
\nstock options, restricted stock rights and restricted performance stock rights
\nto employees, officers and directors in the ordinary course of business
\nconsistent with past practice between September 30, 2000 and the date hereof, no
\nstock options have been granted. Except as set forth above and except for the
\nParent Rights, as of the date hereof, there are outstanding (i) no shares of
\ncapital stock or other voting securities of Parent, (ii) no securities of Parent
\nor its subsidiaries convertible into or exchangeable for shares of capital
\nstock, or voting securities of Parent, (iii) no options or other rights to
\nacquire from Parent or its subsidiaries and no obligations of Parent or its
\nsubsidiaries to issue any capital stock, voting securities or securities
\nconvertible into or exchangeable for capital stock or voting securities of
\nParent and (iv) except for Parent’s Non-Employee Directors Equity Participation
\nPlan, no equity equivalent interests in the ownership or earnings of Parent or
\nits subsidiaries or other similar rights (collectively “Parent Securities”). As
\nof the date hereof, there are no outstanding obligations of Parent or any of its
\nsubsidiaries to repurchase, redeem or otherwise acquire any Parent Securities.
\nThere are no stockholder agreements, voting trusts or other agreements or
\nunderstandings to which Parent is a party or by which it is bound relating to
\nthe voting of any shares of capital stock of Parent.<\/p>\n
(b) The Parent Common Stock and the Parent Rights constitute the only
\nclasses of equity securities of Parent or its subsidiaries registered or
\nrequired to be registered under the Exchange Act.<\/p>\n
(c) The authorized capital stock of Holdco and the issued and outstanding
\ncapital stock of Holdco as of the date of purchase of Shares and Preferred
\nShares in the Offer will be the same as that of Parent immediately prior to such
\ndate, except, in each case, as otherwise contemplated by this Agreement. The
\nshares of Holdco Common Stock and the shares of Holdco Preferred Stock to be
\nissued in the Offer have been duly authorized by all necessary corporate action
\non the part of Holdco and when issued in accordance with the terms hereof will
\nbe validly issued, fully paid, non-assessable and free of preemptive rights.<\/p>\n
SECTION 4.3. Authority Relative to this Agreement and the Northrop Merger
\n ————————————————————
\nAgreement. Each of Parent, Holdco, Acquisition I and Acquisition II, as
\n———
\napplicable has all necessary corporate power and authority to execute and
\ndeliver this Agreement and the Northrop Merger Agreement and to consummate the
\ntransactions contemplated hereby and thereby. The execution and delivery of this
\nAgreement and the Northrop Merger Agreement by Parent, Holdco, Acquisition I and
\nAcquisition II and the consummation by such parties of the transactions
\ncontemplated hereby and thereby have been duly and validly authorized by the
\nboards of directors of Parent, Holdco, Acquisition I and Acquisition II, as
\napplicable, by Parent as the sole stockholder of Holdco and by Holdco as the
\nsole stockholder of Acquisition I and Acquisition II and no other corporate
\nproceedings on the part of Parent, Holdco, Acquisition I or Acquisition II are
\nnecessary to authorize this Agreement or the Northrop Merger Agreement or to
\nconsummate the transactions contemplated hereby or thereby. This Agreement and
\nthe<\/p>\n
26<\/p>\n
Northrop Merger Agreement have been duly and validly executed and delivered by
\neach of Parent, Holdco, Acquisition I and Acquisition II, as applicable, and,
\nassuming due authorization, execution and delivery by the Company, as
\napplicable, constitutes a valid, legal and binding agreement of each of Parent,
\nHoldco, Acquisition I and Acquisition II enforceable against each of Parent,
\nHoldco, Acquisition I and Acquisition II in accordance with its terms.<\/p>\n
SECTION 4.4. SEC Reports; Financial Statements.
\n ——————————— <\/p>\n
(a) Parent has filed all required forms, reports and documents (“Parent
\nSEC Reports”) with the SEC since December 31, 1997, each of which has complied
\nin all material respects with all applicable requirements of the Securities Act
\nand the Exchange Act, each as in effect on the dates such forms reports and
\ndocuments were filed. None of such Parent SEC Reports, including, without
\nlimitation, any financial statements or schedules included or incorporated by
\nreference therein, contained when filed any untrue statement of a material fact
\nor omitted to state a material fact required to be stated or incorporated by
\nreference therein, or necessary, in order to make the statements therein in
\nlight of the circumstances under which they were made, not misleading. The
\naudited consolidated financial statements of Parent included in the Parent SEC
\nReports and the unaudited financial statements contained in Parent’s quarterly
\nreport on Form 10-Q for the quarter ended September 30, 2000 have been prepared
\nin accordance with generally accepted accounting principles applied on a
\nconsistent basis (except as may be indicated in the notes thereto), and fairly
\npresent in all material respects the consolidated financial position of Parent
\nand its consolidated subsidiaries as of the dates thereof and their consolidated
\nresults of operations and changes in financial position for the periods then
\nended, except, in the case of unaudited interim financial statements, for normal
\nyear-end audit adjustments and the fact that certain information and notes have
\nbeen condensed or omitted in accordance with the applicable rules of the SEC.<\/p>\n
(b) Parent has heretofore made available or promptly will make available
\nto the Company a complete and correct copy of any amendments or modifications
\nwhich are required to be filed with the SEC but have not yet been filed with the
\nSEC to agreements, documents or other instruments which previously had been
\nfiled by Parent with the SEC pursuant to the Exchange Act.<\/p>\n
SECTION 4.5. Information Supplied. None of the information supplied or to
\n ——————–
\nbe supplied by Parent, Holdco or Acquisition I in writing for inclusion or
\nincorporation by reference in the S-4, the Proxy Statement or the Schedule 14D-9
\nwill, at the respective times that the S-4, the Proxy Statement and the Schedule
\n14D-9 or any amendments or supplements thereto are filed with the SEC and are
\nfirst published or sent or given to holders of Shares, and in the case of the S-
\n4, at the time that it becomes effective under the Securities Act, and in the
\ncase of the Proxy Statement, at the time that it or any amendment or supplement
\nthereto is mailed to the Company’s stockholders, at the time of the
\nStockholders’ Meeting or at the Effective Time, contain any untrue statement of
\na material fact or omit to state any material fact required to be stated therein
\nor necessary in order to make the statements therein, in light of the
\ncircumstances under which they were made, not misleading. The S-4 will comply as
\nto form in all material respects with the provisions of the Securities Act and
\nthe rules and regulations promulgated thereunder.<\/p>\n
27<\/p>\n
SECTION 4.6. Consents and Approvals; No Violations. Except for filings,
\n ————————————-
\npermits, authorizations, consents and approvals as may be required under and
\nother applicable requirements of the Securities Act, the Exchange Act, the HSR
\nAct, foreign antitrust laws and the filing and recordation of the Merger
\nCertificate as required by the DGCL, no filing with or notice to, and no permit
\nauthorization, consent or approval of, any Governmental Entity is necessary for
\nthe execution and delivery by Parent, Holdco, Acquisition I or Acquisition II of
\nthis Agreement or the consummation by Parent, Holdco, Acquisition I or
\nAcquisition II of the transactions contemplated hereby, except where the failure
\nto obtain such permits, authorizations, consents or approvals or to make such
\nfilings or give such notice would not have a Parent Material Adverse Effect.
\nNeither the execution, delivery and performance of this Agreement by Parent,
\nHoldco, Acquisition I or Acquisition II nor the consummation by Parent, Holdco,
\nAcquisition I or Acquisition II of the transactions contemplated hereby will (a)
\nconflict with or result in any breach of any provision of the respective
\nCertificate of Incorporation or Bylaws (or similar governing documents) of
\nParent, Holdco, Acquisition I or Acquisition II or any of Parent’s other
\nsubsidiaries, (b) result in a violation or breach of or constitute (with or
\nwithout due notice or lapse of time or both) a default (or give rise to any
\nright of termination, amendment, cancellation or acceleration or Lien) under any
\nof the terms, conditions or provisions of any note, bond, mortgage, indenture,
\nlease, license, contract, agreement or other instrument or obligation to which
\nParent, Holdco, Acquisition I or Acquisition II or any of Parent’s other
\nsubsidiaries is a party or by which any of them or any of their respective
\nproperties or assets may be bound or (c) violate any order, writ, injunction,
\ndecree, law, statute, rule or regulation applicable to Parent, Holdco,
\nAcquisition I or Acquisition II or any of Parent’s other subsidiaries or any of
\ntheir respective properties or assets except, in the case of (b) or (c), for
\nviolations breaches or defaults which would not have a Parent Material Adverse
\nEffect.<\/p>\n
SECTION 4.7. No Default. None of Parent or its subsidiaries is in breach,
\n ———-
\ndefault or violation (and no event has occurred which with notice or the lapse
\nof time or both would constitute a breach, default or violation) of any term,
\ncondition or provision of (a) its Certificate of Incorporation or Bylaws (or
\nsimilar governing documents), (b) any note, bond, mortgage, indenture, lease,
\nlicense, contract, agreement or other instrument or obligation to which Parent
\nor any of its subsidiaries is now a party or by which any of them or any of
\ntheir respective properties or assets may be bound or (c) any order, writ,
\ninjunction, decree, law, statute, rule or regulation applicable to Parent or any
\nof its subsidiaries or any of their respective properties or assets except, in
\nthe case of (b) or (c), for violations, breaches or defaults that would not have
\na Parent Material Adverse Effect.<\/p>\n
SECTION 4.8. Absence of Changes. Since September 30, 2000, there have been
\n ——————
\nno events, changes or effects with respect to Parent or its subsidiaries that
\nwould have a Parent Material Adverse Effect.<\/p>\n
SECTION 4.9. Litigation. There is no suit, claim, action, proceeding or
\n ———-
\ninvestigation pending or, to the knowledge of Parent, threatened against Parent
\nor any of its subsidiaries or any of their respective properties or assets
\nbefore any Governmental Entity which would have a Parent Material Adverse Effect
\nor would reasonably be expected to prevent or materially delay the consummation
\nof the transactions contemplated by this Agreement. None of Parent or its
\nsubsidiaries is subject to any outstanding order, writ, injunction or decree of
\nany Governmental<\/p>\n
28<\/p>\n
Entity that would have a Parent Material Adverse Effect or would reasonably be
\nexpected to prevent or materially delay the consummation of the transactions
\ncontemplated hereby.<\/p>\n
SECTION 4.10. Compliance with Applicable Law. Parent and its subsidiaries
\n ——————————
\nhold all permits, licenses, variances, exemptions, orders and approvals from all
\nGovernmental Entities necessary for the lawful conduct of their respective
\nbusinesses (the “Parent Permits”), except for failures to hold such permits,
\nlicenses, variances, exemptions, orders and approvals which would not have a
\nParent Material Adverse Effect. Parent and its subsidiaries are in compliance
\nwith the terms of the Parent Permits except where the failure so to comply would
\nnot have a Parent Material Adverse Effect. The businesses of Parent and its
\nsubsidiaries are not being conducted in violation of any law, ordinance or
\nregulation of any Governmental Entity, except that no representation or warranty
\nis made in this Section 4.10 with respect to Environmental Laws and except for
\nviolations or possible violations which would not have a Parent Material Adverse
\nEffect. To the knowledge of Parent, no investigation or review by any
\nGovernmental Entity with respect to Parent or its subsidiaries is pending or
\nthreatened nor has any Governmental Entity indicated an intention to conduct the
\nsame, other than such investigations or reviews as would not have a Parent
\nMaterial Adverse Effect.<\/p>\n
SECTION 4.11. Employee Benefit Plans; Labor Matters. With respect to each
\n ————————————-
\nemployee benefit plan, program, arrangement and contract (including, without
\nlimitation, any “employee benefit plan,” as defined in Section 3(3) of ERISA)
\nmaintained or contributed to by Parent or any of its subsidiaries or with
\nrespect to which Parent or any of its subsidiaries could incur liability under
\nSection 4069, 4212(c) or 4204 of ERISA (the “Parent Benefit Plans”) no event
\nhas occurred and, to the knowledge of Parent, there currently exists no
\ncondition or set of circumstances in connection with which Parent or any of its
\nsubsidiaries could be subject to any liability under the terms of the Parent
\nBenefit Plans, ERISA, the Code or any other applicable law which could not be
\ncorrected under one or more of the Internal Revenue Service voluntary compliance
\nprograms at a cost which will not have a Parent Material Adverse Effect. There
\nis no pending or threatened labor dispute, strike or work stoppage against
\nParent or any of its subsidiaries which would have a Parent Material Adverse
\nEffect.<\/p>\n
SECTION 4.12. Environmental Laws and Regulations.
\n ———————————- <\/p>\n
(a) (i) Each of Parent and its subsidiaries is in compliance with all
\nEnvironmental Laws, except for non-compliance that would not have a Parent
\nMaterial Adverse Effect, which compliance includes but is not limited to, the
\npossession by Parent and its subsidiaries of all material permits and other
\nmaterial authorizations by Governmental Entities required under applicable
\nEnvironmental Laws and compliance with the terms and conditions thereof; and
\n(ii) none of Parent or its subsidiaries has received written notice of or, to
\nthe knowledge of Parent, is the subject of any action, cause of action, claim,
\ninvestigation, demand or notice by any person or entity alleging liability under
\nor non-compliance with any Environmental Law (a “Parent Environmental Claim”)
\nthat would have a Parent Material Adverse Effect.<\/p>\n
(b) Except as disclosed in the Parent SEC Reports, there are no Parent
\nEnvironmental Claims that would have a Parent Material Adverse Effect that are
\npending or, to the knowledge of Parent, threatened against Parent or its
\nsubsidiaries or, to the knowledge of Parent, against any<\/p>\n
29<\/p>\n
person or entity whose liability for any Parent Environmental Claim Parent or
\nany of its subsidiaries has or may have retained or assumed either contractually
\nor by operation of law.<\/p>\n
SECTION 4.13. Tax Matters.
\n ————<\/p>\n
(a) Except as publicly disclosed by Parent in the Parent SEC Reports,
\nParent and its subsidiaries have accurately prepared and duly filed with the
\nappropriate federal, state, local and foreign taxing authorities all tax
\nreturns, information returns and reports required to be filed with respect to
\nParent and its subsidiaries and have paid in full or made adequate provision for
\nthe payment of all Taxes.<\/p>\n
(b) Neither Parent, Acquisition I, Acquisition II nor Holdco has taken or
\nagreed to take any action that would prevent the Offer and the Northrop Merger,
\ntaken together, from qualifying as an exchange described in Section 351 of the
\nCode.<\/p>\n
SECTION 4.14. Brokers. No broker, finder or investment banker (other than
\n ——-
\nthe Parent’s investment bankers and financial advisers) is entitled to any
\nbrokerage, finder’s or other fee or commission in connection with the
\ntransactions contemplated by this Agreement based upon arrangements made by or
\non behalf of Parent or Acquisition I.<\/p>\n
SECTION 4.15. Adequate Funds. Parent has sufficient funds or firm
\n ————–
\ncommitment letters from nationally recognized lending institutions for, and will
\nhave at the time the conditions to the Offer are satisfied or waived and at the
\nEffective Time sufficient funds, for the payment of the aggregate Cash
\nConsideration and to perform its obligations with respect to the transactions
\ncontemplated by this Agreement, and Holdco has taken all action required to
\nreserve for issuance the Holdco Common Stock and Holdco Preferred Stock to be
\nissued in the Offer. Parent has provided the Company with accurate and complete
\ncopies of the commitment letters which it has obtained to provide funds for the
\ntransactions contemplated by this Agreement.<\/p>\n
SECTION 4.16. No Prior Activities. Except for obligations incurred in
\n ——————-
\nconnection with its incorporation or organization of the negotiation and
\nconsummation of this Agreement and the transactions contemplated hereby, none of
\nHoldco, Acquisition I or Acquisition II has incurred any obligation or liability
\nor engaged in any business or activity of any type or kind whatsoever or entered
\ninto any agreement or arrangement with any person.<\/p>\n
SECTION 4.17. No Vote Required. No vote is required by the holders of any
\n —————-
\nclass or series of Parent’s or Holdco’s (other than Parent) capital stock to
\napprove and adopt this Agreement (including without limitation, the Northrop
\nMerger Agreement) or pursuant to the rules of any national securities exchange
\nas a result of this Agreement or the transactions contemplated hereby.<\/p>\n
SECTION 4.18. Intellectual Property; Software.
\n ——————————- <\/p>\n
(a) Each of Parent and its subsidiaries owns or possesses adequate
\nlicenses or other valid rights to use all existing United States and foreign
\npatents, trademarks, trade names, service marks, copyrights, trade secrets and
\napplications therefor owned or used by Parent and its subsidiaries (the “Parent
\nIntellectual Property Rights”), except where the failure to own or<\/p>\n
30<\/p>\n
possess valid rights to use such Parent Intellectual Property Rights would not
\nhave a Parent Material Adverse Effect.<\/p>\n
(b) Except for any of the following which would not have a Parent Material
\nAdverse Effect:<\/p>\n
(i) the validity of Parent Intellectual Property Rights and the
\ntitle thereto of Parent or any subsidiary, as the case may be, is not being
\nquestioned in any litigation to which Parent or any subsidiary is a party, and<\/p>\n
(ii) the conduct of the business of Parent and its subsidiaries
\nas now conducted does not, to the knowledge of Parent, infringe any valid
\npatents, trademarks, trade names, service marks or copyrights of others. To the
\nknowledge of Parent, the consummation of the transactions contemplated by this
\nAgreement will not result in the loss or impairment of any Parent Intellectual
\nProperty Rights.<\/p>\n
SECTION 4.19. Government Contracts. Except as disclosed in Section 4.9 or
\n ——————–
\nSection 4.19 of the Parent Disclosure Schedule, to the knowledge of Parent, with
\nrespect to its Government Contracts, there is, as of the date of the Original
\nAgreement, no (i) civil fraud or criminal investigation by any Governmental
\nEntity that would have a Parent Material Adverse Effect, (ii) suspension or
\ndebarment proceeding (or equivalent proceeding) against Parent or any of its
\nsubsidiaries that would have a Parent Material Adverse Effect, (iii) request by
\nthe U.S. Government for a contract price adjustment based on a claimed
\ndisallowance by the Defense Contract Audit Agency or claim of defective pricing
\nin excess of $40 million, (iv) dispute between Parent or any of its subsidiaries
\nand the U.S. Government which, since August 1, 2000, has resulted in a
\ngovernment contracting officer’s determination and finding final decision where
\nthe amount in controversy exceeds or is expected to exceed $40 million or (v)
\nclaim or equitable adjustment by Parent or any of its subsidiaries against the
\nU.S. Government in excess of $40 million.<\/p>\n
SECTION 4.20. Certain Business Practices. To the knowledge of Parent, none
\n ————————–
\nof Parent, any of its subsidiaries or any directors, officers, agents or
\nemployees of Parent or any of its subsidiaries has (i) used any funds for
\nunlawful contributions, gifts, entertainment or other unlawful expenses related
\nto political activity, (ii) made any unlawful payment to foreign or domestic
\ngovernment officials or employees or to foreign or domestic political parties or
\ncampaigns or violated any provision of the Foreign Corrupt Practices Act of
\n1977, as amended, or (iii) made any other unlawful payment, which in any event
\nwould be material to Parent.<\/p>\n
SECTION 4.21. Problems with Customers. Except as provided in Schedule 4.21
\n ———————–
\nof the Parent Disclosure Schedule, from July 31, 2000 to the date of the
\nOriginal Agreement: (a) no customer of Parent or any of its subsidiaries has
\ncanceled or otherwise terminated its relationship with Parent or any of its
\nsubsidiaries, except cancellations and terminations that would not have a Parent
\nMaterial Adverse Effect; (b) to the knowledge of Parent, no customer of Parent
\nor any of its subsidiaries has overtly threatened to cancel or otherwise
\nterminate its relationship with Parent or any of its subsidiaries or its usage
\nof the services of Parent or any of its subsidiaries, except cancellations and
\nterminations that would not have a Parent Material Adverse Effect; and <\/p>\n
31<\/p>\n
(c) Parent and its subsidiaries have no direct or indirect ownership interest
\nthat is material to Parent and its subsidiaries taken as a whole in any customer
\nof Parent or any of its subsidiaries.<\/p>\n
ARTICLE 5<\/p>\n
COVENANTS<\/p>\n
SECTION 5.1. Conduct of Business of the Company. Except as contemplated by
\n ———————————-
\nthis Agreement or as described in Section 5.1 of the Company Disclosure
\nSchedule, during the period from the date hereof to the Effective Time or
\nearlier termination of this Agreement the Company will and will cause each of
\nits subsidiaries to conduct its operations in the ordinary course of business
\nconsistent with past practice and seek to (i) preserve substantially intact its
\ncurrent business organizations, (ii) keep available the services of its current
\nofficers and employees and (iii) preserve its current relationships with
\ncustomers, suppliers and others having significant business dealings with it.
\nWithout limiting the generality of the foregoing, except as otherwise expressly
\nprovided in this Agreement or as described in Section 5.1 of the Company
\nDisclosure Schedule, prior to the Effective Time or earlier termination of this
\nAgreement, neither the Company nor any of its subsidiaries will, without the
\nprior written consent of Parent and Acquisition I (which consent will not
\nunreasonably be withheld):<\/p>\n
(a) amend its Certificate of Incorporation or Bylaws (or other similar
\ngoverning instrument);<\/p>\n
(b) authorize for issuance, issue, sell, deliver or agree or commit to
\nissue, sell or deliver (whether through the issuance or granting of options,
\nwarrants, commitments, subscriptions, rights to purchase or otherwise) any
\nshares of any class of capital stock or any other securities (except bank loans)
\nor equity equivalents (including, without limitation, any stock options or stock
\nappreciation rights) except for (i) the issuance and sale of Shares pursuant to
\noptions, performance-based restricted stock or deferred stock units previously
\ngranted, (ii) the issuance and sale of performance-based restricted stock
\npursuant to rights previously granted or (iii) the issuance and sale of
\nsecurities by a subsidiary of the Company to any entity which is wholly owned by
\nthe Company;<\/p>\n
(c) split, combine or reclassify any shares of its capital stock, declare,
\nset aside or pay any dividend or other distribution (whether in cash, stock or
\nproperty or any combination thereof) in respect of its capital stock, make any
\nother actual, constructive or deemed distribution in respect of its capital
\nstock or otherwise make any payments to stockholders in their capacity as such,
\nor redeem or otherwise acquire any of its securities or any securities of any of
\nits subsidiaries, except for the payment of dividends in respect of the
\nPreferred Shares and except for the payment of dividends or distributions by a
\nwholly owned subsidiary of the Company to the Company or another wholly owned
\nsubsidiary of the Company;<\/p>\n
(d) adopt a plan of complete or partial liquidation, dissolution, merger,
\nconsolidation, restructuring, recapitalization or other reorganization of the
\nCompany or any of its subsidiaries (other than the Litton Merger);<\/p>\n
32<\/p>\n
(e) alter through merger, liquidation, reorganization, restructuring or
\nany other fashion the corporate structure of ownership of any subsidiary (other
\nthan as permitted by this Section 5.1);<\/p>\n
(f) (i) incur or assume any long-term or short-term debt or issue any debt
\nsecurities except for borrowings under existing lines of credit or in connection
\nwith existing commercial paper programs in the ordinary course of business; (ii)
\nassume, guarantee, endorse or otherwise become liable or responsible (whether
\ndirectly, contingently or otherwise) for the obligations of any other person
\nexcept in the ordinary course of business consistent with past practice and
\nexcept for obligations of subsidiaries of the Company incurred in the ordinary
\ncourse of business; (iii) make any loans, advances or capital contributions to
\nor investments in any other person (other than to subsidiaries of the Company or
\ncustomary loans or advances to employees, in each case in the ordinary course of
\nbusiness consistent with past practice); (iv) pledge or otherwise encumber
\nshares of capital stock of the Company or its subsidiaries except in connection
\nwith borrowings as permitted by this Section 5.1(f); or (v) mortgage or pledge
\nany of its material assets, tangible or intangible, or create or suffer to exist
\nany material Lien thereupon (other than currently existing Liens and Tax Liens
\nfor Taxes not yet due);<\/p>\n
(g) except as may be contemplated by a contract or written plan now in
\neffect or by applicable law, enter into, adopt, amend or terminate any bonus,
\nprofit sharing, compensation, severance, termination, stock option, stock
\nappreciation right, restricted stock, performance unit, stock equivalent, stock
\npurchase agreement, pension, retirement, deferred compensation, employment,
\nseverance or other employee benefit agreement, trust, plan, fund or other
\narrangement for the benefit or welfare of any director, officer or employee in
\nany manner or increase in any manner the compensation or fringe benefits of any
\ndirector, officer or employee or pay any benefit not contemplated by any plan
\nand arrangement as in effect as of the date hereof (including, without
\nlimitation, the granting of stock appreciation rights or performance units);
\nprovided, however, that this Section 5.1 shall not prevent the Company or its
\n——– ——-
\nsubsidiaries from (i) entering into employment agreements or severance
\nagreements with new employees in the ordinary course of business and consistent
\nwith past practice; (ii) increasing the compensation and benefits of any
\nemployees who are not officers or directors of the Company in the ordinary
\ncourse of business consistent with past practice; or (iii) paying bonuses for
\nany period that ends on or before the Effective Time (including where relevant
\nthose based upon actual performance during such period) in the ordinary course
\nof business consistent with past practice;<\/p>\n
(h) other than in the ordinary course of business, acquire, sell, lease or
\ndispose of any assets in any single transaction or series of related
\ntransactions having a fair market value in excess of $10,000,000 in the
\naggregate (other than in connection with outsourcing agreements entered into
\nwith customers of the Company or its subsidiaries);<\/p>\n
(i) except as may be required as a result of a change in law or in
\ngenerally accepted accounting principles, change any of the accounting
\nprinciples or practices used by it (other than immaterial changes);<\/p>\n
33<\/p>\n
(j) revalue in any material respect any of its assets including without
\nlimitation writing down the value of inventory or writing-off notes or accounts
\nreceivable other than in the ordinary course of business or as required by
\ngenerally accepted accounting principles;<\/p>\n
(k) (i) acquire (by merger, consolidation or acquisition of stock or
\nassets) any corporation, partnership or other business organization or division
\nthereof or any equity interest therein (other than in connection with
\noutsourcing agreements entered into with customers of the Company or its
\nsubsidiaries); (ii) enter into any contract or agreement other than in the
\nordinary course of business consistent with past practice which would be
\nmaterial to the Company and its subsidiaries, taken as a whole; (iii) authorize
\nany new (not within the Company’s existing capital expenditure budget) capital
\nexpenditure or expenditures which individually is in excess of $10,000,000 or
\ncapital expenditures in the aggregate are in excess of $210,000,000; provided
\nthat none of the foregoing shall limit any capital expenditure required pursuant
\nto existing customer contracts or pursuant to the Company’s existing capital
\nexpenditures budget, a copy of which has been provided by the Company to Parent;<\/p>\n
(l) make any material tax election or settle or compromise any income tax
\nliability material to the Company and its subsidiaries taken as a whole (in each
\ncase, other than in the ordinary course of business consistent with past
\npractice);<\/p>\n
(m) settle or compromise any pending or threatened suit, action or claim
\nwhich (i) relates to the transactions contemplated hereby or (ii) the settlement
\nor compromise of which would have a Company Material Adverse Effect;<\/p>\n
(n) commence any material research and\/or development project or terminate
\nany material research and\/or development project that is currently ongoing, in
\neither case except pursuant to the terms of existing contracts or except as
\ncontemplated by the Company’s project development budget previously provided to
\nParent;<\/p>\n
(o) amend the Company Rights Agreement in any manner that would permit any
\nperson other than Parent or its affiliates to acquire more than 15% of the
\nShares, or redeem the Company Rights; or<\/p>\n
(p) take or agree in writing or otherwise to take any of the actions
\ndescribed in Sections 5.1(a) through 5.1(o).<\/p>\n
SECTION 5.2. Conduct of Business of Parent. Except as contemplated by this
\n —————————–
\nAgreement, during the period from the date hereof to the Effective Time or
\nearlier termination of this Agreement, neither Parent nor any of its
\nsubsidiaries nor Holdco, without the prior written consent of the Company (which
\nconsent will not unreasonably be withheld), shall:<\/p>\n
(a) acquire or agree to acquire, by merging or consolidating with, or by
\npurchasing an equity interest in or the assets of or by any other manner, any
\nbusiness or corporation, partnership or other business organization or division
\nthereof, or otherwise acquire or agree to acquire any assets of any other entity
\n(other than the purchase of assets from suppliers, clients or vendors in the
\nordinary course of business and consistent with past practice) if such
\ntransaction <\/p>\n
34<\/p>\n
would prevent or materially delay the consummation of the transactions
\ncontemplated by this Agreement;<\/p>\n
(b) adopt or propose to adopt any amendments to its charter documents
\nwhich would have a material adverse impact on the consummation of the
\ntransactions contemplated by this Agreement;<\/p>\n
(c) take any action that would prevent the Offer and the Mergers, taken
\ntogether, from qualifying as an exchange described in Section 351 of the Code;<\/p>\n
(d) split, combine or reclassify any shares of its capital stock, declare,
\nset aside or pay any dividend or other distribution (whether in cash, stock or
\nproperty or any combination thereof) in respect of its capital stock, make any
\nother actual, constructive or deemed distribution in respect of its capital
\nstock or otherwise make any payments to stockholders in their capacity as such,
\nexcept for the payment of ordinary cash dividends in respect of the Parent
\nCommon Stock;<\/p>\n
(e) adopt a plan of complete or partial liquidation or dissolution of
\nParent or any of its material subsidiaries; or<\/p>\n
(f) take or agree in writing or otherwise to take any of the actions
\ndescribed in Sections 5.2(a) through 5.2(e).<\/p>\n
SECTION 5.3. Other Potential Acquirers.
\n ————————- <\/p>\n
(a) The Company, its subsidiaries and their respective officers,
\ndirectors, employees, representatives and agents shall immediately cease any
\ndiscussions or negotiations with any parties with respect to any Third Party
\nAcquisition. Neither the Company nor any of its subsidiaries shall, nor shall
\nthe Company authorize or permit any of its or their respective officers,
\ndirectors, employees, representatives or agents to, directly or indirectly,
\nencourage, solicit, participate in or initiate discussions or negotiations with
\nor provide any non-public information to any person or group (other than Parent,
\nHoldco and Acquisition I or any designees of Parent, Holdco and Acquisition I)
\nconcerning any Third Party Acquisition; provided, however, that (i) nothing
\n ——– ——-
\nherein shall prevent the Company Board from taking and disclosing to the
\nCompany’s stockholders a position contemplated by Rules 14d-9 and 14e-2
\npromulgated under the Exchange Act with regard to any tender offer; (ii) if the
\nCompany receives an unsolicited written proposal for a Third Party Acquisition
\nfrom a Third Party, nothing herein shall prevent the Company or its
\nrepresentatives from making such inquiries or conducting such discussions as the
\nCompany Board, after consultation with and based upon the advice of, legal
\ncounsel, may deem necessary to inform itself for the purpose of exercising its
\nfiduciary duties, and (iii) if the Company receives an unsolicited written
\nproposal for a Third Party Acquisition from a Third Party that the Company Board
\nby a majority vote determines in its good faith judgment (after receiving the
\nadvice of a financial adviser of nationally recognized reputation) is reasonably
\nlikely to constitute a Superior Proposal, the Company and its representatives
\nmay conduct such additional discussions or provide such information as the
\nCompany Board shall determine, but only if, prior to such provision of
\ninformation or additional discussion (A) such Third Party shall have entered
\ninto a confidentiality and standstill agreement substantially in the<\/p>\n
35<\/p>\n
form of that certain Confidentiality Agreement entered into between the Company
\nand Parent dated June 23, 2000 (and containing additional provisions that
\nexpressly permit the Company to comply with the provisions of this Section 5.3)
\nand (B) the Company Board by a majority vote determines in its good faith
\njudgment, after consultation with and based upon the advice of, legal counsel
\nthat it is required to do so in order to comply with its fiduciary duties. The
\nCompany shall promptly notify the Parent in the event it receives any proposal
\nor inquiry concerning a Third Party Acquisition including the terms and
\nconditions thereof and the identity of the party submitting such proposal; and
\nthe Company shall advise the Parent from time to time of the status and any
\nmaterial developments concerning the same.<\/p>\n
(b) Except as set forth in this Section 5.3(b), the Company Board shall
\nnot withdraw, change or modify its recommendation of the transactions
\ncontemplated hereby or approve or recommend, or cause the Company to enter into
\nany agreement with respect to, any Third Party Acquisition. Notwithstanding the
\nforegoing, if the Company Board by a majority vote determines in its good faith
\njudgment, after consultation with and based upon the advice of, legal counsel
\nthat it is required to do so in order to comply with its fiduciary duties, the
\nCompany Board may withdraw its recommendation of the transactions contemplated
\nhereby or approve or recommend a Superior Proposal, but in each case only (i)
\nafter providing written notice to Parent (a “Notice of Superior Proposal”)
\nadvising Parent that the Company Board has received a Superior Proposal,
\nspecifying the material terms and conditions of such Superior Proposal and
\nidentifying the person making such Superior Proposal and (ii) if Parent does
\nnot, within five business days of Parent’s receipt of the Notice of Superior
\nProposal, make an offer which the Company Board by a majority vote determines in
\nits good faith judgment (after receiving the advice of a financial adviser of
\nnationally recognized reputation) to be as favorable to the Company’s
\nstockholders as such Superior Proposal; provided, however, the Company shall not
\n ——– ——-
\nbe entitled to enter into any agreement with respect to a Superior Proposal
\n(excluding a confidentiality agreement pursuant to Section 5.3(a)) unless and
\nuntil this Agreement is terminated by its terms pursuant to Section 7.1 and the
\nCompany has paid all amounts due to Acquisition I pursuant to Section 7.3. For
\nthe purposes of this Agreement, “Third Party Acquisition” means the occurrence
\nof any of the following events: (i) the acquisition of the Company by merger or
\notherwise by any person (which includes a “person” as such term is defined in
\nSection 13(d)(3) of the Exchange Act) other than Parent, Acquisition I or any
\naffiliate thereof (a “Third Party”); (ii) the acquisition by a Third Party of
\nall or a major part of any of the Company’s business segments, as identified in
\nthe Company’s SEC Reports or more than 20% of the total assets of the Company
\nand its subsidiaries taken as a whole; (iii) the acquisition by a Third Party of
\n20% or more of the outstanding Shares; (iv) the adoption by the Company of a
\nplan of liquidation or the declaration or payment of an extraordinary dividend;
\n(v) the repurchase by the Company or any of its subsidiaries of more than 20% of
\nthe outstanding Shares; or (vi) the acquisition by the Company or any subsidiary
\nby merger, purchase of stock or assets, joint venture or otherwise of a direct
\nor indirect ownership interest or investment in any business whose annual
\nrevenues, net income or assets is equal or greater than 20% of the annual
\nrevenues, net income or assets of the Company. For purposes of this Agreement, a
\n“Superior Proposal” means any bona fide proposal to acquire directly or
\nindirectly for consideration consisting of cash and\/or securities more than 50%
\nof the Shares then outstanding or all or substantially all the assets of the
\nCompany and otherwise on terms which the Company Board by a majority vote<\/p>\n
36<\/p>\n
determines in its good faith judgment (after receiving the advice of a financial
\nadviser of nationally recognized reputation) to be more favorable, from a
\nfinancial point of view, to the Company’s stockholders than the Litton Merger.<\/p>\n
SECTION 5.4. Meeting of Stockholders. If a stockholder vote is required for
\n ———————–
\nconsummation of the Litton Merger, the Company shall take all action necessary
\nin accordance with the DGCL and its Certificate of Incorporation and Bylaws to
\nduly call, give notice of, convene and hold a meeting of its stockholders (the
\n“Stockholders’ Meeting”) as promptly as practicable after consummation of the
\nOffer to consider and vote upon the adoption and approval of this Agreement and
\nthe transactions contemplated hereby. The Company shall also as promptly as
\npracticable after consummation of the Offer, if necessary, prepare and file with
\nthe SEC the Proxy Statement. At the Stockholders’ Meeting, Holdco, Acquisition I
\nand their subsidiaries will vote all Shares and all Preferred Shares owned by
\nthem or as to which they have been granted a proxy in favor of approval and
\nadoption of this Agreement. The stockholder votes required for the adoption and
\napproval of the transactions contemplated by this Agreement shall be the vote
\nrequired by the DGCL and the Company’s Certificate of Incorporation and Bylaws.
\nThe Company will, through its Board of Directors, recommend to its stockholders
\napproval of such matters as described in Section 1.2(a); provided, however, that
\n ——– ——-
\nsubject to the provisions of Section 7.3, the Company Board may withdraw, modify
\nor amend its recommendation if (i) the Company receives a Superior Proposal and
\n(ii) after complying with the provisions of Section 5.3(b) the Company Board by
\na majority vote determines in its good faith judgment after consultation with
\nand based upon the advice of legal counsel that it is required in order to
\ncomply with its fiduciary duties to recommend the Superior Proposal. The Company
\nwill use all reasonable efforts (i) to obtain and furnish the information
\nrequired to be included by it in the Proxy Statement and, after consultation
\nwith Parent and Holder, respond promptly to any comments made by the SEC with
\nrespect to the Proxy Statement and any preliminary version thereof and cause the
\nProxy Statement to be mailed to its stockholders at the earliest practicable
\ntime following the expiration or termination of the Offer and (ii) to obtain the
\nnecessary approvals by its stockholders of this Agreement.<\/p>\n
SECTION 5.5. Access to Information.
\n ——————— <\/p>\n
(a) Between the date hereof and the Effective Time, the Company will give
\nParent and its authorized representatives and Parent will give the Company and
\nits authorized representatives reasonable access during normal business hours to
\nall employees, plants, offices, warehouses and other facilities and to all books
\nand records of itself and its subsidiaries, will permit the other party to make
\nsuch inspections as such party may reasonably require and will cause its
\nofficers and those of its subsidiaries to furnish the other party with such
\nfinancial and operating data and other information with respect to its business
\nand properties and those of its subsidiaries as the other party may from time to
\ntime reasonably request.<\/p>\n
(b) Between the date hereof and the Effective Time, the Company shall
\nfurnish to Parent within 25 business days after the end of each fiscal quarter
\n(commencing with the first fiscal quarter ending after the date hereof) an
\nunaudited balance sheet of the Company as of the end of such fiscal quarter and
\nthe related statements of earnings, stockholders’ equity (deficit) <\/p>\n
37<\/p>\n
and cash flows for the quarter then ended, each prepared in conformity with the
\naccounting practices consistently applied by the Company with respect to its
\nquarterly financial statements.<\/p>\n
(c) Notwithstanding the foregoing, the Company shall not be required to
\nprovide any information which it reasonably believes it may not provide by
\nreason of any applicable law, rules or regulations, which constitutes
\ninformation protected by attorney\/client privilege, or which it or any of its
\nsubsidiaries is required to keep confidential by reason of contract, agreement
\nor understanding with third parties.<\/p>\n
(d) Each of the parties hereto will hold and will cause its consultants
\nand advisers to hold in confidence all documents and information furnished to it
\nin connection with the transactions contemplated by this Agreement pursuant to
\nthe terms of that certain Confidentiality Agreement entered into between the
\nCompany and Parent dated June 23, 2000 and each of the parties shall comply with
\nall agreements, covenants, and restrictions contained therein.<\/p>\n
SECTION 5.6. Additional Agreements; Reasonable Efforts.
\n —————————————– <\/p>\n
(a) Subject to the terms and conditions herein, Company, Parent, Holdco
\nand Acquisition I each agrees to use all reasonable efforts to take, or cause to
\nbe taken, all reasonable actions necessary, proper or advisable to consummate
\nand make effective as promptly as practicable the transactions contemplated by
\nthis Agreement (including, without limitation, the Mergers) and to reasonably
\ncooperate with the others in connection with the foregoing, including using all
\nreasonable efforts (i) to obtain all necessary waivers, consents and approvals
\nfrom other parties to material loan agreements, leases and other contracts, (ii)
\nto obtain all consents, approvals and authorizations that are required to be
\nobtained under any federal, state, local or foreign law or regulation, (iii) to
\nlift or rescind any injunction or restraining order or other order adversely
\naffecting the ability of the parties hereto to consummate the transactions
\ncontemplated hereby (including, without limitation, the Mergers), (iv) to effect
\nall necessary registrations and filings including, but not limited to, filings
\nand submissions of information requested or required by any domestic or foreign
\ngovernment or governmental or multinational authority, including, without
\nlimitation, the Antitrust Division of the United States Department of Justice,
\nthe Federal Trade Commission, any State Attorney General, or the European
\nCommission (“Governmental Antitrust Authority”), and (v) to fulfill all
\nconditions to this Agreement. Company, Parent, Holdco and Acquisition I further
\ncovenant and agree, with respect to a threatened or pending preliminary or
\npermanent injunction or other order, decree or ruling or statute, rule,
\nregulation or executive order that would adversely affect the ability of the
\nparties hereto to consummate the transactions contemplated hereby, to use all
\nreasonable efforts to prevent the entry, enactment or promulgation thereof, as
\nthe case may be.<\/p>\n
(b) In furtherance and not in limitation of the foregoing, the Company,
\nParent, Holdco and Acquisition I shall use their respective best efforts to
\nresolve such objections, if any, as may be asserted with respect to the
\ntransactions contemplated hereby (including, without limitation, the Mergers)
\nunder any antitrust, competition or trade regulatory laws of any domestic or
\nforeign government or governmental authority or any multinational authority, or
\nany regulations issued thereunder (“Antitrust Laws”). Without limiting the
\ngenerality of the foregoing, the Company, Parent, Holdco and Acquisition I shall
\n(i) use their respective best<\/p>\n
38<\/p>\n
efforts to avoid the entry of, or to have vacated or terminated, any decree,
\norder, or judgment that would restrain, prevent, or unreasonably delay the
\nconsummation of the transactions contemplated hereby, including, without
\nlimitation, defending through litigation on the merits and through any available
\nappeals any claim asserted in any court by any party, and (ii) take any and all
\nsteps necessary to avoid (or eliminate) any impediment (including the
\ninstitution of proceedings) under any Antitrust Laws that may be asserted by any
\nGovernmental Antitrust Authority with respect to the transactions contemplated
\nhereby so as to enable the consummation of such transactions to occur reasonably
\nexpeditiously. The steps described in clause (ii) of the preceding sentence
\nshall include, without limitation, proposing, negotiating, committing to and
\neffecting (by consent decree, hold separate order or otherwise) the sale,
\ndivestiture or disposition of such assets or businesses of Parent or its
\nsubsidiaries, the Company or its subsidiaries — or otherwise taking or
\ncommitting to take any action that limits its freedom of action with respect to
\nany of the businesses, product lines or assets of Parent or its affiliates, the
\nCompany or its affiliates — as may be required in order to avoid the entry of,
\nor to effect the dissolution of, any injunction, temporary restraining order, or
\nother order in any suit or proceeding, which would otherwise have the effect of
\npreventing or unreasonably delaying the consummation of the transactions
\ncontemplated hereby (including, without limitation, the Mergers).
\nNotwithstanding anything to the contrary contained in this Agreement, neither
\nParent, Holdco nor Acquisition I shall be required to take any action pursuant
\nto Sections 5.6(a) or (b) if the taking of such action would have a material
\nadverse effect on the business, assets, long-term earning capacity or financial
\ncondition of Parent and the Company (and their subsidiaries), taken as a whole.<\/p>\n
(c) The Company, Parent, Holdco and Acquisition I shall keep the other
\nparty apprised of the status of matters relating to the completion of the
\ntransactions contemplated hereby (including, without limitation, the Mergers)
\nand shall reasonably cooperate in connection with obtaining the requisite
\napprovals, consents or orders of any Governmental Antitrust Authority,
\nincluding, without limitation: (i) cooperating with the other parties in
\nconnection with filings under the HSR Act or any other Antitrust Laws,
\nincluding, with respect to the party making a filing, (A) providing copies of
\nall such documents to the non-filing parties and their advisers prior to filing
\n(other than documents containing confidential business information that shall be
\nshared only with outside counsel to the non-filing party), and (B) if requested,
\nto accept all reasonable additions, deletions or changes suggested in connection
\nwith any such filing; (ii) furnishing to each other all information required for
\nany application or other filing to be made pursuant to the HSR Act or any other
\nAntitrust Laws in connection with the transactions contemplated by this
\nAgreement; (iii) promptly notifying the others of, and if in writing furnishing
\nthe others with copies of, any communications from or with any Governmental
\nAntitrust Authority with respect to the transactions contemplated by this
\nAgreement (including, without limitation, the Mergers); (iv) permitting the
\nother parties to review in advance and considering in good faith the views of
\none another in connection with any proposed communication with any Governmental
\nAntitrust Authority in connection with proceedings under or relating to the HSR
\nAct or any other Antitrust Laws; (v) not agreeing to participate in any meeting
\nor discussion with any Governmental Antitrust Authority in connection with
\nproceedings under or relating to the HSR Act or any other Antitrust Laws unless
\nit consults with the other parties in advance, and, to the extent permitted by
\nsuch Governmental Antitrust Authority, gives the other parties the opportunity
\nto attend and participate thereat; and (vi)<\/p>\n
39<\/p>\n
consulting and cooperating with one another in connection with any analyses,
\nappearances, presentations, memoranda, briefs, arguments, opinions and proposals
\nmade or submitted by or on behalf of any party hereto in connection with
\nproceedings under or relating to the HSR Act or any other Antitrust Laws. If any
\nparty or any affiliate thereof receives a request for additional information or
\ndocumentary material from any such Governmental Antitrust Authority with respect
\nto the transactions contemplated hereby, then such party will endeavor in good
\nfaith to make, or cause to be made, as soon as practicable and after
\nconsultation with the other parties, an appropriate response in compliance with
\nsuch request. Parent, Holdco and Acquisition I will advise the Company promptly
\nin respect of any understandings, undertakings or agreements (oral or written)
\nwhich Parent, Holdco and Acquisition I propose to make or enter into with any
\nGovernmental Antitrust Authority in connection with the transactions
\ncontemplated hereby (including, without limitation, the Mergers).<\/p>\n
SECTION 5.7. Indemnification.
\n ————— <\/p>\n
(a) After the Effective Time, Parent and the Litton Surviving Corporation
\nshall jointly and severally indemnify and hold harmless (and shall also advance
\nexpenses as incurred to the fullest extent permitted under applicable law to)
\neach person who is now or has been prior to the date of the Original Agreement
\nor who becomes prior to the Effective Time an officer or director of the Company
\nor any of the Company’s subsidiaries (the “Indemnified Persons”) against (i)
\nall losses, claims, damages, costs, expenses (including, without limitation,
\ncounsel fees and expenses), settlement payments or liabilities arising out of or
\nin connection with any claim, demand, action, suit, proceeding or investigation
\nbased in whole or in part on or arising in whole or in part out of the fact that
\nsuch person is or was an officer or director of the Company or any of its
\nsubsidiaries whether or not pertaining to any matter existing or occurring at or
\nprior to the Effective Time and whether or not asserted or claimed prior to or
\nat or after the Effective Time (“Indemnified Liabilities”) and (ii) all
\nIndemnified Liabilities based in whole or in part on or arising in whole or in
\npart out of or pertaining to this Agreement or the transactions contemplated
\nhereby, in each case to the fullest extent required or permitted under
\napplicable law or under the Litton Surviving Corporation’s Certificate of
\nIncorporation or Bylaws, it being agreed that the provisions thereof relating to
\nindemnification and exoneration from liability shall be at least as favorable to
\nthe Indemnified Persons as the current provisions of the Company’s Certificate
\nof Incorporation and Bylaws. The parties hereto intend, to the extent not
\nprohibited by applicable law, that the indemnification provided for in this
\nSection 5.7 shall apply without limitation to negligent acts or omissions by an
\nIndemnified Person. Each Indemnified Person is intended to be a third party
\nbeneficiary of this Section 5.7 and may specifically enforce its terms. This
\nSection 5.7 shall not limit or otherwise adversely affect any rights any
\nIndemnified Person may have under any agreement with the Company or under the
\nCompany’s Certificate of Incorporation or Bylaws.<\/p>\n
(b) For six years after the Effective Time, the Litton Surviving
\nCorporation shall provide directors’ and officers’ liability insurance in
\nrespect of acts or omissions occurring prior to the Effective Time covering each
\nsuch Indemnified Person covered as of the date of the Original Agreement or
\nthereafter by the Company’s directors’ and officers’ liability insurance policy
\non terms with respect to coverage and amounts no less favorable than those of
\nsuch policy in effect on the date of the Original Agreement; provided, that if
\nthe aggregate annual premiums <\/p>\n
40<\/p>\n
for such insurance at any time during such period shall exceed 300% of the per
\nannum rate of premium paid by the Company as of the date of the Original
\nAgreement for such insurance, then the Litton Surviving Corporation shall
\nprovide only such coverage as shall then be available at an annual premium equal
\nto 300% of such current rate.<\/p>\n
SECTION 5.8. Public Announcements. Parent, Holdco, Acquisition I and the
\n ——————–
\nCompany, as the case may be, will consult with one another before issuing any
\npress release or otherwise making any public statements with respect to the
\ntransactions contemplated by this Agreement, including, without limitation, the
\nLitton Merger, and shall not issue any such press release or make any such
\npublic statement prior to such consultation except as may be required by
\napplicable law or by obligations pursuant to any listing agreement with the
\nNYSE. Parent shall cause Holdco to, and Holdco shall, issue a press release
\npublicly announcing the Common Stock Consideration prior to the opening of
\ntrading on the second trading day prior to the final Expiration Date.<\/p>\n
SECTION 5.9. Employee Matters.
\n —————- <\/p>\n
(a) From and after the Effective Time, Holdco shall assume and honor, and
\nshall cause the Litton Surviving Corporation to honor, all Employee Plans and
\nall Employment Agreements in accordance with their terms as in effect
\nimmediately before the Effective Time, subject to any amendment or termination
\nthereof that may be permitted by such terms. It is acknowledged and agreed that
\nthe consummation of the Offer will constitute a “change of control” for purposes
\nof those Employee Plans and Employment Agreements containing “change of control”
\nprovisions.<\/p>\n
(b) For a period of not less than two years following the Effective Time,
\nHoldco shall provide, or shall cause to be provided, to current and former
\nemployees of the Company and its subsidiaries (the “Company Employees”)
\ncompensation and employee benefits that are, in the aggregate, not less
\nfavorable than those provided to Company Employees immediately before the
\nEffective Time. The foregoing shall not be construed to prevent (i) the
\namendment or termination of any particular Employee Plan or Employment Agreement
\nto the extent permitted by, and in accordance with, its terms as in effect
\nimmediately before the Effective Time, or (ii) the termination of employment or
\nthe reduction of, or other change in, the compensation or employee benefits of
\nany individual Company Employee.<\/p>\n
(c) For all purposes under the employee benefit plans of Holdco and its
\nsubsidiaries providing benefits to any Company Employees after the Effective
\nTime (the “New Plans”), each Company Employee shall be credited with all years
\nof service for which such Company Employee was credited before the Effective
\nTime under any similar Company Employee Plans, except to the extent such credit
\nwould result in a duplication of benefits. In addition, and without limiting the
\ngenerality of the foregoing: (i) each Company Employee shall be immediately
\neligible to participate, without any waiting time, in any and all New Plans to
\nthe extent coverage under such New Plan replaces coverage under a comparable
\nCompany Employee Plan in which such Company Employee participated immediately
\nbefore the Effective Time (such plans, collectively, the “Old Plans”); and (ii)
\nfor purposes of each New Plan providing medical, dental, pharmaceutical and\/or
\nvision benefits to any Company Employee, Holdco shall cause all pre-<\/p>\n
41<\/p>\n
existing condition exclusions and actively-at-work requirements of such New Plan
\nto be waived for such employee and his or her covered dependents, and Holdco
\nshall cause any eligible expenses incurred by such employee and his or her
\ncovered dependents during the portion of the plan year of the Old Plan ending on
\nthe date such employee’s participation in the corresponding New Plan begins to
\nbe taken into account under such New Plan for purposes of satisfying all
\ndeductible, coinsurance and maximum out-of-pocket requirements applicable to
\nsuch employee and his or her covered dependents for the applicable plan year as
\nif such amounts had been paid in accordance with such New Plan.<\/p>\n
(d) Without limiting the generality of the foregoing, from and after the
\nEffective Time, Holdco shall assume and honor, and shall cause the Litton
\nSurviving Corporation to honor, the obligations of the Company to provide
\nlifetime benefits under the Company’s Supplemental Medical Insurance Plan to the
\nindividuals listed on Schedule 5.9(d). In addition, Holdco agrees not to demand,
\nand to cause the Litton Surviving Corporation not to demand, repayment of the
\nloans currently outstanding under the Company’s Incentive Loan Program before
\nDecember 31, 2001. Finally, Holdco shall continue, or shall cause the Company to
\ncontinue, the executive life insurance policies listed in Section 5.9(d) of the
\nCompany Disclosure Schedule in effect for the remaining lifetime of the retired
\nexecutives covered thereby, on the terms and conditions now in effect.<\/p>\n
(e) On or before January 31, 2001, Company shall cause Parent to be
\nprovided with:<\/p>\n
(i) except to the extent already listed on Schedule 3.11(a) of the
\nCompany Disclosure Schedule a list of all employee benefit plans (as defined in
\nSection(3) of ERISA) and all bonus, stock option, stock purchase, incentive,
\ndeferred compensation, supplemental retirement, severance and other similar
\nfringe or employee benefit plans, programs or arrangements maintained or
\ncontributed to by the Company or any of its subsidiaries for the benefit of or
\nrelating to any employee of the Company, or any of its subsidiaries, excluding
\nplans, programs, agreements and arrangements under which the Company has no
\nremaining obligations, payroll practices, and any plans, programs, agreements
\nand arrangements that are required to be maintained by the Company or any of its
\nsubsidiaries under the laws of any foreign jurisdiction; <\/p>\n
(ii) a copy of the documents and instruments governing each such
\nplan and the most recent Form 5500 filed with the Internal Revenue Service
\nexcept to the extent already provided;<\/p>\n
(iii) except to the extent already listed in Schedule 3.11(b) of the
\nCompany Disclosure Schedule, (A) all employment agreements with officers of the
\nCompany; and (B) all agreements with consultants who are individuals obligating
\nthe Company to make annual cash payments in an amount exceeding $30,000. The
\nCompany shall make available to Parent copies (or descriptions in detail
\nreasonably satisfactory to Parent) of all such agreements, plans, programs and
\nother arrangements; and<\/p>\n
(iv) except to the extent already listed in Section 3.11(d) of the
\nCompany Disclosure Schedule, a list of any Employee Plan that is a welfare plan
\nwithin the meaning of <\/p>\n
42<\/p>\n
Section 3(1) of ERISA providing benefits to former employees of the Company or
\nits ERISA Affiliates other than pursuant to Section 4980B of the Code.<\/p>\n
SECTION 5.10. NYSE Listing. Parent shall use all reasonable efforts to
\n ————
\ncause the shares of Holdco Common Stock and Holdco Preferred Stock to be issued
\nin the Offer to be approved for listing on the NYSE, subject to official notice
\nof issuance, at the earliest practicable time and in any event prior to the time
\nwhen all conditions of the Offer, excluding clause (iii) of the initial
\nparagraph of Annex A hereof, are satisfied or waived.<\/p>\n
SECTION 5.11. Corporate Filings. Prior to the purchase of Shares and
\n —————–
\nPreferred Shares in the Offer, Parent shall cause Holdco to file (a) an Amended
\nand Restated Certificate of Incorporation of Holdco in the form of Exhibit B
\nattached hereto with only such changes thereto as the Company shall reasonably
\napprove, and (b) the Certificate of Designations of the rights, preferences and
\nprivileges of the Holdco Preferred Stock in the form of Exhibit C attached
\nhereto with the Secretary of State of the State of Delaware with only such
\nchanges thereto as the Company shall reasonably approve.<\/p>\n
SECTION 5.12. Stockholder Approval of Conversion Shares. Parent or Holdco,
\n —————————————–
\nas applicable, shall use all reasonable efforts to seek at its 2001 annual
\nstockholder meeting the requisite stockholder approval pursuant to the rules of
\nthe NYSE for the issuance of shares of Holdco Common Stock upon conversion of
\nthe Holdco Preferred Stock.<\/p>\n
ARTICLE 6<\/p>\n
CONDITIONS TO CONSUMMATION OF THE LITTON MERGER<\/p>\n
SECTION 6.1. Conditions to Each Party’s Obligations to Effect the Litton
\n ———————————————————–
\nMerger. The respective obligations of each party hereto to effect the Litton
\n——
\nMerger are subject to the satisfaction at or prior to the Effective Time of the
\nfollowing conditions:<\/p>\n
(a) this Agreement shall have been approved and adopted, if required, by
\nthe requisite vote of the stockholders of the Company;<\/p>\n
(b) no statute, rule, regulation, executive, order, decree, ruling or
\ninjunction shall have been enacted, entered, promulgated or enforced by any
\nUnited States court or United States or European Union Governmental Entity which
\nprohibits, restrains or enjoins the consummation of the Litton Merger;<\/p>\n
(c) any waiting period applicable to the Litton Merger under the HSR Act
\nshall have terminated or expired and to the extent required, the Commission of
\nthe European Union shall have approved the Mergers under Regulation (EEC) No.
\n4064\/89 of the Council of the European Union, or such approval shall have been
\ndeemed to have been granted; and<\/p>\n
(d) Holdco shall have purchased Shares pursuant to the Offer.<\/p>\n
43<\/p>\n
ARTICLE 7<\/p>\n
TERMINATION; AMENDMENT; WAIVER<\/p>\n
SECTION 7.1. Termination. This Agreement may be terminated and the Mergers
\n ———–
\nmay be abandoned at any time prior to the purchase of Shares pursuant to the
\nOffer:<\/p>\n
(a) by mutual written consent of Parent, Acquisition I and the Company;<\/p>\n
(b) by Parent and Acquisition I or the Company if (i) any court of
\ncompetent jurisdiction in the United States or other United States or European
\nUnion Governmental Entity shall have issued a final order, decree or ruling or
\ntaken any other final action restraining, enjoining or otherwise prohibiting the
\nOffer or the Mergers and such order, decree, ruling or other action is or shall
\nhave become final and nonappealable or (ii) the purchase of Shares pursuant to
\nthe Offer has not been consummated by September 15, 2001; provided, however,
\n ——– ——-
\nthat no party may terminate this Agreement pursuant to this clause (ii) if such
\nparty’s failure to fulfill any of its obligations under this Agreement shall
\nhave been the reason that the purchase of Shares pursuant to the Offer shall not
\nhave occurred on or before said date;<\/p>\n
(c) by the Company if (i) there shall have been a breach of any
\nrepresentation or warranty on the part of Parent, Holdco or Acquisition I set
\nforth in this Agreement or if any representation or warranty of Parent, Holdco
\nor Acquisition I shall have become untrue or (ii) there shall have been a breach
\nby Parent, Holdco or Acquisition I of any of their respective covenants or
\nagreements hereunder, where such breaches under clauses (i) or (ii) would have a
\nParent Material Adverse Effect or materially adversely affecting (or materially
\ndelaying) the consummation of the Offer or the Mergers, and Parent, Holdco or
\nAcquisition I, as the case may be, has not cured such breach within twenty
\nbusiness days after notice by the Company thereof; provided, that the Company
\nhas not breached any of its obligations hereunder; or<\/p>\n
(d) by Parent and Acquisition I if (i) there shall have been a breach of
\nany representation or warranty on the part of the Company set forth in this
\nAgreement or if any representation or warranty of the Company shall have become
\nuntrue in either case such that the condition set forth in paragraph (e) of
\nAnnex A would be incapable of being satisfied by September 15, 2001, (ii) there
\nshall have been a breach or breaches by the Company of its covenants or
\nagreements hereunder that would have a Company Material Adverse Effect or would
\nmaterially adversely affect (or materially delay) the consummation of the Offer
\nor the Mergers, and the Company has not cured such breach within twenty business
\ndays after notice by Parent or Acquisition I thereof provided that neither
\nParent nor Acquisition I has breached any of their respective obligations
\nhereunder, (iii) the Company Board shall have entered into, or recommended to
\nthe Company’s stockholders, a Superior Proposal, (iv) the Company Board shall
\nhave withdrawn, modified or changed its approval or recommendation of this
\nAgreement or the Offer or the Mergers or shall have adopted any resolution to
\neffect any of the foregoing or (v) a Third Party Acquisition shall have occurred
\nafter the date of the Original Agreement, provided that for purposes of Article
\n7, the Third Party Acquisition described in clause (iii) of the definition of
\nsuch term shall be deemed to occur only upon the acquisition by a Third Party of
\n50% or more of the outstanding Shares.<\/p>\n
44<\/p>\n
(e) by the Company if the Company receives a Superior Proposal and
\nresolves to accept such Superior Proposal, but only if (i) the Company has acted
\nin accordance with, and has otherwise complied with the terms of, Section 5.3
\nhereof, including the notice provisions therein, and (ii) the Company has paid
\nall amounts due to Acquisition I pursuant to Section 7.3.<\/p>\n
SECTION 7.2. Effect of Termination. In the event of the termination and
\n ———————
\nabandonment of this Agreement pursuant to Section 7.1, this Agreement shall
\nforthwith become void and have no effect without any liability on the part of
\nany party hereto or its affiliates, directors, officers or stockholders other
\nthan the provisions of this Section 7.2 and Sections 5.5(d) and 7.3 hereof.
\nNothing contained in this Section 7.2 shall relieve any party from liability for
\nany breach of its covenants, agreements or obligations set forth in this
\nAgreement.<\/p>\n
SECTION 7.3. Fees and Expenses.
\n —————– <\/p>\n
(a) In the event that this Agreement shall be terminated pursuant to:<\/p>\n
(i) Sections 7.1(d)(iii), (iv), (v) or 7.1(e);<\/p>\n
(ii) Section 7.1(d)(ii) and within twelve months thereafter the
\nCompany enters into an agreement with respect to a Third Party Acquisition or a
\nThird Party Acquisition occurs involving any party (or any affiliate thereof)
\n(x) with whom the Company (or its agents) had negotiations with a view to a
\nThird Party Acquisition, (y) to whom the Company (or its agents) furnished
\ninformation with a view to a Third Party Acquisition or (z) who had submitted a
\nproposal for a Third Party Acquisition, in the case of each of clauses (x), (y)
\nand (z), after the date of the Original Agreement and prior to such termination;
\nor<\/p>\n
(iii) Section 7.1(b)(ii) at a time when (i) the Minimum
\nCondition is not satisfied, (ii) there shall be outstanding a publicly announced
\noffer by a Third Party to consummate a Third Party Acquisition, and (iii) no
\nother condition to the Offer is unsatisfied, and within twelve months thereafter
\nthe Company enters into an agreement with respect to a Third Party Acquisition
\nor a Third Party Acquisition occurs, in either case involving the Third Party
\nreferred to above;<\/p>\n
Parent and Acquisition I would suffer direct and substantial damages, which
\ndamages cannot be determined with reasonable certainty. To compensate Parent and
\nAcquisition I for such damages the Company shall pay to Parent the amount of
\n$110,000,000 as liquidated damages within three business days following (x) a
\ntermination referred to in Section 7.3(a)(i) (except as provided in Section
\n7.1(e), which payment shall be made simultaneously with such termination), or
\n(y) the entering into of the agreement for a Third Party Acquisition or the
\noccurrence of the Third Party Acquisition which triggers the obligation to make
\nthe payment pursuant to Section 7.3(a)(ii) or (iii). In no event shall the
\nCompany be obligated to make more than one payment referred to in this Section
\n7.3(a). It is specifically agreed that the amount to be paid pursuant to this
\nSection 7.3(a) represents liquidated damages and not a penalty.<\/p>\n
(b) Except as specifically provided in this Section 7.3, each party shall
\nbear its own expenses in connection with this Agreement and the transactions
\ncontemplated hereby.<\/p>\n
45<\/p>\n
SECTION 7.4. Amendment. This Agreement may be amended by action taken by
\n ———
\nthe Company, Parent and Acquisition I at any time before or after approval of
\nthe Litton Merger by the stockholders of the Company but, after any such
\napproval, no amendment shall be made which requires the approval of such
\nstockholders under applicable law without such approval. This Agreement
\n(including the Company Disclosure Schedule) may be amended only by an instrument
\nin writing signed on behalf of the parties hereto.<\/p>\n
SECTION 7.5. Extension; Waiver. At any time prior to the Effective Time,
\n —————–
\neach party hereto may (i) extend the time for the performance of any of the
\nobligations or other acts of the other party, (ii) waive any inaccuracies in the
\nrepresentations and warranties of the other party contained herein or in any
\ndocument, certificate or writing delivered pursuant hereto or (iii) waive
\ncompliance by the other party with any of the agreements or conditions contained
\nherein. Any agreement on the part of any party hereto to any such extension or
\nwaiver shall be valid only if set forth in an instrument, in writing, signed on
\nbehalf of such party. The failure of any party hereto to assert any of its
\nrights hereunder shall not constitute a waiver of such rights.<\/p>\n
ARTICLE 8<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 8.1. Nonsurvival of Representations and Warranties. The
\n ———————————————
\nrepresentations and warranties made herein shall not survive beyond the
\nEffective Time or a termination of this Agreement. This Section 8.1 shall not
\nlimit any covenant or agreement of the parties hereto which by its terms
\nrequires performance after the Effective Time.<\/p>\n
SECTION 8.2. Entire Agreement; Assignment. (a) This Agreement (including
\n —————————-
\nthe Company Disclosure Schedule and the Parent Disclosure Schedule) and the
\nConfidentiality Agreement referred to in Section 5.5(d) constitute the entire
\nagreement between the parties hereto with respect to the subject matter hereof
\nand supersede all other prior and contemporaneous agreements and understandings
\nboth written and oral between the parties with respect to the subject matter
\nhereof, including, without limitation, the Original Agreement, and (b) this
\nAgreement shall not be assigned by operation of law or otherwise; provided,
\n ——–
\nhowever, that Acquisition I may assign any or all of its rights and obligations
\n——-
\nunder this Agreement to any subsidiary of Parent, but no such assignment shall
\nrelieve Acquisition I of its obligations hereunder if such assignee does not
\nperform such obligations.<\/p>\n
SECTION 8.3. Validity. If any provision of this Agreement or the
\n ——–
\napplication thereof to any person or circumstance is held invalid or
\nunenforceable the remainder of this Agreement and the application of such
\nprovision to other persons or circumstances shall not be affected thereby and to
\nsuch end the provisions of this Agreement are agreed to be severable.<\/p>\n
SECTION 8.4. Notices. All notices, requests, claims, demands and other
\n ——-
\ncommunications hereunder shall be in writing and shall be given (and shall be
\ndeemed to have been duly given upon receipt) by delivery in person, by facsimile
\nor by registered or certified mail (postage prepaid, return receipt requested)
\nto each other party as follows:<\/p>\n
46<\/p>\n
if to Parent, Holdco or NORTHROP GRUMMAN
\n Acquisition I: CORPORATION
\n 1840 Century Park East
\n Los Angeles, California 90067
\n Telecopier: (310) 556-4558
\n Attention: W. Burks Terry <\/p>\n
with a copy to: Gibson Dunn & Crutcher LLP
\n 333 South Grand Avenue
\n Los Angeles CA 90071
\n Telecopier: (213) 229-6159
\n Attention: Andrew E. Bogen, Esq. <\/p>\n
if to the Company to: LITTON INDUSTRIES, INC.
\n 21240 Burbank Boulevard
\n Woodland Hills, California 91367
\n Telecopier: (818) 598-2025
\n Attention: John E. Preston <\/p>\n
with a copy to: Wachtell, Lipton, Rosen & Katz
\n 51 West 52nd Street
\n New York, New York 10019
\n Telecopier: (212) 403-2000
\n Attention: Daniel A. Neff, Esq. <\/p>\n
or to such other address or facsimile as the person to whom notice is given may
\nhereinafter furnish to the others in writing in the manner set forth above.<\/p>\n
SECTION 8.5. Governing Law. This Agreement shall be governed by and
\n ————-
\nconstrued in accordance with the laws of the State of Delaware without regard to
\nthe principles of conflicts of law thereof.<\/p>\n
SECTION 8.6. Descriptive Headings. The descriptive headings herein are
\n ——————–
\ninserted for convenience of reference only and are not intended to be part of or
\nto affect the meaning or interpretation of this Agreement.<\/p>\n
SECTION 8.7. Parties in Interest. This Agreement shall be binding upon and
\n ——————-
\ninure solely to the benefit of each party hereto and its successors and
\npermitted assigns and, except as provided in Sections 5.7, 5.9(d) and 8.2,
\nnothing in this Agreement express or implied is intended to or shall confer upon
\nany other person any rights, benefits or remedies of any nature whatsoever under
\nor by reason of this Agreement.<\/p>\n
SECTION 8.8. Certain Definitions. For the purposes of this Agreement the
\n ——————-
\nterm:<\/p>\n
(a) “affiliate” means a person that, directly or indirectly, through one
\nor more intermediaries controls, is controlled by or is under common control
\nwith the first-mentioned <\/p>\n
47<\/p>\n
person, provided, that Unitrin, Inc. and its subsidiaries shall not be
\nconsidered affiliates of the Company for any purpose under this Agreement;<\/p>\n
(b) “business day” means any day other than a day on which the New York
\nStock Exchange is closed;<\/p>\n
(c) “capital stock” means common stock, preferred stock, partnership
\ninterests, limited liability company interests or other ownership interests
\nentitling the holder thereof to vote with respect to matters involving the
\nissuer thereof;<\/p>\n
(d) “knowledge” or “known” means, with respect to any matter in
\nquestion, the actual knowledge of an executive officer of the Company or Parent,
\nas the case may be;<\/p>\n
(e) “person” means an individual, corporation, partnership, limited
\nliability company, association, trust, unincorporated organization or other
\nlegal entity; and<\/p>\n
(f) “subsidiary” or “subsidiaries” of the Company, Parent, Holdco or any
\nother person means any corporation, partnership, limited liability company,
\nassociation, trust, unincorporated association or other legal entity of which
\nthe Company, Parent, Holdco or any such other person, as the case may be,
\n(either alone or through or together with any other subsidiary) owns, directly
\nor indirectly, 50% or more of the capital stock the holders of which are
\ngenerally entitled to vote for the election of the board of directors or other
\ngoverning body of such corporation or other legal entity.<\/p>\n
SECTION 8.9. Personal Liability. This Agreement shall not create or be
\n ——————
\ndeemed to create or permit any personal liability or obligation on the part of
\nany direct or indirect stockholder of the Company or Parent or any officer,
\ndirector, employee, agent, representative or investor of any party hereto.<\/p>\n
48<\/p>\n
SECTION 8.10. Counterparts. This Agreement may be executed in two or more
\n ————
\ncounterparts, each of which shall be deemed to be an original but all of which
\nshall constitute one and the same agreement.<\/p>\n
[signature page follows]<\/p>\n
49<\/p>\n
IN WITNESS WHEREOF, each of the parties has caused this Agreement and Plan
\nof Merger to be duly executed on its behalf as of the day and year first above
\nwritten.<\/p>\n
NORTHROP GRUMMAN CORPORATION <\/p>\n
\/s\/ ALBERT MYERS
\n By: _______________________________
\n Albert Myers
\n Name: _____________________________
\n Corporate V.P. and Treasurer
\n Title: ____________________________<\/p>\n
LITTON INDUSTRIES, INC. <\/p>\n
\/s\/ JOHN E. PRESTON
\n By: _______________________________
\n John E. Preston
\n Name: _____________________________
\n Sr. V.P. and General Counsel
\n Title: ___________________________<\/p>\n
NNG, INC. <\/p>\n
\/s\/ ALBERT MYERS
\n By: _______________________________
\n Albert Myers
\n Name: _____________________________
\n President
\n Title: ____________________________<\/p>\n
LII ACQUISITION CORP. <\/p>\n
\/s\/ ALBERT MYERS
\n By: _______________________________
\n Albert Myers
\n Name: _____________________________
\n President<\/p>\n
50<\/p>\n
ANNEX A<\/p>\n
CONDITIONS OF THE OFFER<\/p>\n
THE CAPITALIZED TERMS USED HEREIN HAVE THE MEANINGS SET FORTH IN THE
\n AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER TO WHICH THIS
\n ANNEX A IS ATTACHED<\/p>\n
Notwithstanding any other provisions of the Offer (subject to the terms and
\nconditions of the Agreement and any applicable rules and regulations of the SEC,
\nincluding Rules 14e-1(c) under the Exchange Act), Holdco shall not be required
\nto accept for payment or pay for, and may delay the acceptance for payment of,
\nany Shares, if (i) any applicable waiting period under the HSR Act or Regulation
\n(EEC) No. 4064\/89 of the Council of the European Union shall not have expired or
\nbeen terminated prior to the expiration of the Offer, (ii) the S-4 shall not
\nhave become effective under the Securities Act or shall be the subject of any
\nstop order or proceeding seeking a stop order, (iii) the shares of Holdco Common
\nStock to be issued in the Offer shall not have been approved for listing on the
\nNYSE, subject to official notice of issuance, (iv) the Minimum Condition is not
\nsatisfied or (v) at any time on or after the date hereof and prior to the
\nacceptance for payment of Shares, any of the following conditions shall have
\noccurred and continued to exist:<\/p>\n
(a) there shall have been any statute, rule, regulation, judgment, order
\nor injunction enacted or entered and which shall remain in effect by any state
\nor U.S. government or governmental authority or by any state, U.S. or European
\nUnion court or any agency or authority of the European Union, other than the
\nroutine application to the Offer, the Mergers or other subsequent business
\ncombination of waiting periods under the HSR Act or Regulation (EEC) No. 4064\/89
\nof the Council of the European Union, that has the effect of (1) making the
\nacceptance for payment of, or the payment for, some or all of the Shares illegal
\nor otherwise prohibiting consummation of the Offer, (2) imposing limitations on
\nthe ability of Holdco or Parent to acquire or hold or to exercise effectively
\nall rights of ownership of the Shares, or effectively to control the business,
\nassets or operations of Parent, the Company and their subsidiaries, of such
\nmagnitude as would have a material adverse effect on the business, assets, long-
\nterm earning capacity or financial condition of Parent, the Company and their
\nsubsidiaries, taken as a whole.<\/p>\n
(b) a Company Material Adverse Effect shall have occurred and continued to
\nexist; or<\/p>\n
(c) there shall have occurred and continued to exist (i) any general
\nsuspension of trading in, or limitation on prices for, securities on the New
\nYork Stock Exchange (excluding any coordinated trading halt triggered solely as
\na result of a specified decrease in a market index and suspensions or
\nlimitations resulting from physical damage to or interference with such exchange
\nnot related to market conditions), (ii) the declaration of a banking moratorium
\nor any suspension of payments in respect of banks in the United States (whether
\nor not mandatory), (iii) the commencement of a war, armed hostilities or other
\ninternational or national calamity directly or indirectly involving the United
\nStates and having a Company Material Adverse Effect, (iv) any material
\nlimitation (whether or not mandatory) by any U.S. governmental authority or
\nagency on the extension of credit by banks or other financial institutions, (v)
\nfrom the date of the Original Agreement through the date of termination or
\nexpiration of the Offer, a <\/p>\n
decline of at least 27.5% in the Standard & Poor’s 500 Index or (vi) in the case
\nof any of the situations described in clauses (i) through (v) inclusive,
\nexisting at the date of the commencement of the Offer, a material acceleration
\nor worsening thereof; or<\/p>\n
(d) the Agreement shall have been terminated in accordance with its terms;
\nor<\/p>\n
(e) (i) the representations of the Company contained in the Agreement
\nshall not be true and correct at and as of consummation of the Offer with the
\nsame effect as if made at and as of such date or if such representations speak
\nas of an earlier date, as of such earlier date, except, in either such case to
\nthe extent that the breach thereof would not have a Company Material Adverse
\nEffect, or (ii) the Company shall have failed to comply with its covenants and
\nagreements contained in the Agreement in all material respects;<\/p>\n
(f) prior to the purchase of Shares pursuant to the Offer, the Company
\nBoard shall have withdrawn or modified (including by amendment of the Schedule
\n14D-9) in a manner adverse to Holdco its approval or recommendation of the
\nOffer, the Agreement or the Litton Merger or shall have recommended another
\noffer, or shall have adopted any resolution to effect any of the foregoing.<\/p>\n
A-2 <\/p>\n
EXHIBIT A<\/p>\n
FORM OF AGREEMENT AND PLAN OF MERGER<\/p>\n
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of
\n ———
\n_____, 2001, is entered into by and between NORTHROP GRUMMAN CORPORATION, a
\nDelaware corporation (“Parent”), NNG, Inc., a Delaware corporation and a wholly
\n ——
\nowned subsidiary of Parent (“Holdco”), and NGC ACQUISITION CORP., a Delaware
\n ——
\ncorporation (“Acquisition II”), with reference to the following facts:
\n ————– <\/p>\n
WHEREAS, Parent, Litton Industries, Inc., a Delaware corporation (the
\n“Company”), Holdco, and LII Acquisition Corp., a Delaware corporation and wholly
\nowned subsidiary of Holdco (“Acquisition I”), have entered into an Amended and
\n ————-
\nRestated Agreement and Plan of Merger dated as of January 23, 2001 (as amended
\nand restated from time to time, the “Merger Agreement”); and
\n —————- <\/p>\n
WHEREAS, each of Acquisition I and Acquisition II is a wholly owned
\nsubsidiary of Holdco; and<\/p>\n
WHEREAS, pursuant to the Merger Agreement, Acquisition I will be
\nmerged with and into the Company (the “Litton Merger”), and pursuant to the
\n ————-
\nMerger Agreement and this Agreement, Acquisition II will be merged with and into
\nParent (the “Northrop Merger”), with the Company and Parent continuing as the
\n —————
\nsurviving corporations of such mergers and as subsidiaries of Holdco; and<\/p>\n
WHEREAS, the Board of Directors of Parent and Acquisition II deem it
\nadvisable and in the best interests of Parent and Acquisition II, respectively,
\nthat Acquisition II merge with and into Parent, in accordance with Section
\n251(g) of the Delaware General Corporation Law (the “DGCL”) and upon the terms
\n —-
\nand subject to the conditions of the Merger Agreement and this Agreement, and
\nhave approved and adopted the Merger Agreement and this Agreement.<\/p>\n
NOW, THEREFORE, in consideration of the foregoing premises and for
\nother good and valuable consideration, the receipt and sufficiency of which are
\nacknowledged, the parties hereby agree, subject to the terms and conditions
\nhereinafter set forth, as follows:<\/p>\n
ARTICLE I<\/p>\n
THE MERGER<\/p>\n
SECTION 1.01. The Northrop Merger. Upon the terms and subject to the
\n ——————-
\nconditions set forth in the Merger Agreement and this Agreement, and in
\naccordance with the provisions of Section 251(g) of the DGCL, Acquisition II
\nshall be merged with and into Parent and Parent shall be the entity surviving
\nthe Northrop Merger (in this capacity, the “Northrop Surviving Corporation”).
\n —————————— <\/p>\n
SECTION 1.02. Filing Time; Effective Time. At the time and as
\n —————————-
\nprovided in the Merger Agreement, an executed copy of this Agreement shall be
\nfiled with the Secretary of State of the <\/p>\n
State of Delaware, which copy shall include the certification of the Secretary
\nor Assistant Secretary of Parent that this Agreement has been adopted by the
\nBoard of Directors of Parent without any vote of stockholders, as provided in
\nSection 251(g) of the DGCL, and that each of the conditions specified in the
\nfirst sentence of Section 251(g) has been satisfied. The term “Effective Time”
\nshall mean the date and time a properly executed and certified copy of this
\nAgreement is filed with the Secretary of State of the State of Delaware.<\/p>\n
SECTION 1.03. Certain Effects of the Northrop Merger. At the
\n ————————————–
\nEffective Time (i) Acquisition II shall be merged with and into Parent and the
\nseparate existence of Acquisition II shall cease and (ii) the Merger shall have
\nthe effects set forth in the DGCL (including, without limitation, Section
\n251(g)).<\/p>\n
SECTION 1.04. Certificate of Incorporation and Bylaws.
\n ————————————— <\/p>\n
(a) Northrop Surviving Corporation. The Restated Certificate of
\n ——————————
\nIncorporation of Parent as in effect immediately prior to the Effective Time
\nshall be the Certificate of Incorporation of the Northrop Surviving Corporation,
\nexcept for the following amendments thereto:<\/p>\n
Article FIRST shall be amended to read in its entirety as follows:<\/p>\n
“FIRST: The name of the corporation is Northrop Grumman Operating
\n Corporation (the “Corporation”).”<\/p>\n
A new article NINETEENTH shall be added, reading as follows:<\/p>\n
“NINETEENTH: Other than the election or removal of directors of
\n the Corporation, any act or transaction by or involving the
\n Corporation that requires under the General Corporation Law of
\n the State of Delaware or this Amended and Restated Certificate of
\n Incorporation the approval of the stockholders of the Corporation
\n shall, pursuant to Section 251(g)(7)(i) of the General
\n Corporation Law of the State of Delaware, require, in addition,
\n the approval of the stockholders of Northrop Grumman Corporation
\n by the same vote that is required by the General Corporation Law
\n of the State of Delaware and\/or this Amended and Restated
\n Certificate of Incorporation.”<\/p>\n
The Bylaws of Parent in effect at the Effective Time shall be the Bylaws of the
\nNorthrop Surviving Corporation until amended in accordance with applicable law,
\nthe Certificate of Incorporation of the Northrop Surviving Corporation and such
\nBylaws.<\/p>\n
(b) Holdco. In accordance with Section 251(g) of the DGCL, Holdco
\n ——
\nagrees to file (and Parent as the sole stockholder of Holdco agrees to approve
\nthe filing of) an Amended and Restated Certificate of Incorporation of Holdco
\nwith the Secretary of State of the State of Delaware immediately prior to the
\nEffective Time containing provisions identical to those in the Certificate of
\nIncorporation of Parent in effect immediately prior to the Effective Time,
\nexcept as otherwise permitted by Section 251(g). Holdco further agrees to adopt
\nBylaws immediately prior to the Effective Time containing provisions identical
\nto those in the Bylaws of Parent in effect immediately prior to the Effective
\nTime.<\/p>\n
2<\/p>\n
SECTION 1.05. Directors and Officers.
\n ———————- <\/p>\n
(a) Northrop Surviving Corporation. The directors and officers of
\n ——————————
\nParent immediately prior to the Effective Time shall be the directors and
\nofficers of the Northrop Surviving Corporation, each to hold office in
\naccordance with the Certificate of Incorporation and Bylaws of the Northrop
\nSurviving Corporation until their respective successors are duly elected or
\nappointed and qualified or until their earlier death, resignation or removal.<\/p>\n
(b) Holdco. The directors and officers of Parent immediately prior to
\n ——
\nthe Effective Time shall be the directors and officers of Holdco immediately
\nafter the Effective Time, each to hold office in accordance with the Certificate
\nof Incorporation and Bylaws of Holdco until their respective successors are duly
\nelected or appointed and qualified or until their earlier death, resignation or
\nremoval.<\/p>\n
ARTICLE II<\/p>\n
EFFECT OF MERGER ON CAPITAL STOCK OF THE CONSTITUENT ENTITIES<\/p>\n
SECTION 2.01. Effect On Northrop Surviving Corporation Common Stock
\n —————————————————–
\nand Options. At the Effective Time, without any action on the part of any
\n———–
\nholder of any shares of Parent Common Stock (as defined below):<\/p>\n
(a) Cancellation of Treasury Stock. Each share of common stock, par
\n ——————————
\nvalue $1.00 per share, of Parent (together with the associated rights to
\npurchase Series A Junior Participating Preferred Stock of Parent pursuant to the
\nRights Agreement (the “Rights Agreement”) dated as of September 23, 1998 between
\n —————-
\nParent and ChaseMellon Shareholder Services, L.L.C., the “Parent Common Stock”)
\n ——————-
\nthat is owned by Parent or any subsidiary of Parent shall automatically be
\ncancelled and retired and shall cease to exist, and no cash, Holdco Common Stock
\n(as defined below) or other consideration shall be delivered or deliverable in
\nexchange therefor.<\/p>\n
(b) Conversion of Parent Common Stock. Except as provided in this
\n ———————————
\nSection 2.01, each issued and outstanding share of Parent Common Stock
\n(including the associated rights) shall be converted into one fully paid and
\nnonassessable share of common stock of Holdco having the same designations,
\nrights, powers and preferences, and the qualifications, limitations and
\nrestrictions thereof as the shares of Parent Common Stock being converted,
\ntogether with associated rights to purchase Holdco Series A Junior Participating
\nPreferred Stock that are substantially equivalent to the rights pursuant to the
\nRights Agreement associated with the Parent Common Stock being converted (the
\nshares of common stock and associated rights, the “Holdco Common Stock”). At or
\n ——————-
\nprior to the Effective Time, Holdco shall enter into a rights agreement in
\nsubstantially the form and substance of the Rights Agreement, such that each
\nshare of Holdco Common Stock issued pursuant to this Section 2.01(b) shall be
\nissued together with associated rights to purchase Holdco Series A Junior
\nParticipating Preferred Stock that are equivalent to the current rights to
\npurchase Series A Junior Participating Preferred Stock of Parent under the
\nRights Agreement.<\/p>\n
(c) Cancellation and Retirement of Parent Common Stock. All shares of
\n ————————————————–
\nParent Common Stock issued and outstanding immediately prior to the Effective
\nTime shall no longer be outstanding and shall automatically be cancelled and
\nretired and shall cease to exist, and each <\/p>\n
3<\/p>\n
certificate theretofore representing any such shares shall, without any action
\non the part of the holder thereof, be deemed to represent an equivalent number
\nof fully paid and nonassessable shares of Holdco Common Stock, as specified in
\nSection 251(g) of the DGCL. As required by Section 251(g) of the DGCL, Holdco
\nshall in furtherance of the foregoing change its name to “Northrop Grumman
\nCorporation” immediately following the Effective Time.<\/p>\n
(d) Conversion of Options to Purchase Parent Common Stock. Each
\n —————————————————–
\nissued and outstanding option to purchase Parent Common Stock shall
\nautomatically be deemed converted into an option to purchase an equivalent
\nnumber of shares of Holdco Common Stock, on the same terms and subject to the
\nsame conditions as applied to the option to purchase Parent Common Stock being
\nso converted.<\/p>\n
SECTION 2.02. Effect on Acquisition II Stock. At the Effective Time,
\n ——————————
\neach share of common stock of Acquisition II outstanding immediately prior to
\nthe Effective Time shall be converted into and shall become one fully paid and
\nnonassessable share of common stock of the Northrop Surviving Corporation.<\/p>\n
SECTION 2.03. Other Effects. The Northrop Merger shall have such
\n ————-
\nother effects as provided in the Merger Agreement and the DGCL.<\/p>\n
ARTICLE III<\/p>\n
CLOSING CONDITIONS<\/p>\n
SECTION 3.01. Conditions to Closing. The obligations of Parent,
\n ———————
\nHoldco and Acquisition II under this Agreement are subject to the satisfaction
\nor waiver, immediately prior to the purchase of Shares and Preferred Shares in
\nthe Offer, of all conditions contained in Annex A to the Merger Agreement.<\/p>\n
ARTICLE IV<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 4.01. Amendment. This Agreement may not be amended except by
\n ———
\nan instrument in writing signed by each of the parties and consented to in
\nwriting by the Company.<\/p>\n
SECTION 4.02. Governing Law. This Agreement shall be governed by and
\n ————-
\nconstrued in accordance with the internal law of the State of Delaware, without
\nregard to its conflicts or choice of law principles.<\/p>\n
SECTION 4.03. Descriptive Headings. The descriptive headings herein
\n ——————–
\nare inserted for convenience of reference only and are not intended to be part
\nof or to affect the meaning or interpretation of this Agreement.<\/p>\n
SECTION 4.04. Execution; Counterparts. This Agreement may be
\n ———————–
\nexecuted by facsimile signature and in two or more counterparts, each of which
\nshall be deemed to be an original, but all of which shall constitute one and the
\nsame agreement.<\/p>\n
4<\/p>\n
SECTION 4.05. Parties in Interest. This Agreement shall be binding
\n ——————-
\nupon and inure to the benefit of each party hereto and their respective
\nsuccessors and permitted assigns, and nothing in this Agreement, express or
\nimplied, is intended to confer upon any other person any rights or remedies of
\nany nature whatsoever under or by reason of this Agreement.<\/p>\n
SECTION 4.06. Capitalized Terms. All capitalized terms used but not
\n ——————
\notherwise defined in this Agreement shall have the same meanings set forth in
\nthe Merger Agreement.<\/p>\n
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
\nbe executed on its behalf by its officers thereunto duly authorized, all as of
\nthe day and year first above written.<\/p>\n
NORTHROP GRUMMAN CORPORATION<\/p>\n
By: _____________________________________________
\n Name: ___________________________________________
\n Title: __________________________________________<\/p>\n
NNG, INC.<\/p>\n
By: _____________________________________________
\n Name: ___________________________________________
\n Title: __________________________________________<\/p>\n
NGC ACQUISITION CORP.<\/p>\n
By: _____________________________________________
\n Name: ___________________________________________
\n Title: __________________________________________<\/p>\n
5<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8069,8374],"corporate_contracts_industries":[9473,9511],"corporate_contracts_types":[9622,9626],"class_list":["post-43099","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-litton-industries-inc","corporate_contracts_companies-northrop-grumman-corp","corporate_contracts_industries-aerospace__aircraft","corporate_contracts_industries-technology__search","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43099","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43099"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43099"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43099"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43099"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}