\nSection 9.15. Conveyance Taxes …………………………………. 46
\nSection 9.16. Certain Obligations of Newco AG ……………………. 47
\nSection 9.17. Reasonable Best Efforts …………………………… 47<\/p>\n ARTICLE X
\n CLOSING CONDITIONS<\/p>\n
Section 10.1. Conditions to All Parties’ Obligation to Close ………. 48
\nSection 10.2. Conditions to Daimler-Benz’s and Newco AG’s Obligation to
\n Close …………………………………………… 49
\nSection 10.3. Conditions to Chrysler’s Obligation to Close ………… 50
\nSection 10.4. Further Condition to Obligations of Daimler-Benz and
\n Newco AG ………………………………………… 51
\nSection 10.5. Frustration of Closing Conditions ………………….. 51<\/p>\n
ARTICLE XI
\n TERMINATION, AMENDMENT AND WAIVER<\/p>\n
Section 11.1. Termination ……………………………………… 51
\nSection 11.2. Effect of Termination …………………………….. 53<\/p>\n
ARTICLE XII
\n MISCELLANEOUS<\/p>\n
Section 12.1. No Survival of Representations and Warranties ……….. 53
\nSection 12.2. Fees and Expenses ………………………………… 53
\nSection 12.3. Counterparts; Effectiveness ……………………….. 53
\nSection 12.4. Governing Law ……………………………………. 53
\nSection 12.5. Notices …………………………………………. 53
\nSection 12.6. Assignment; Binding Effect ………………………… 55
\nSection 12.7. Severability …………………………………….. 55
\nSection 12.8. Enforcement of Agreement ………………………….. 56
\nSection 12.9. Entire Agreement; No Third-Party Beneficiaries ………. 56
\nSection 12.10.Reservation of Right to Revise Transaction ………….. 56
\nSection 12.11.Extension of Time, Waiver, Etc …………………….. 56
\nSection 12.12.Amendment ……………………………………….. 57
\nSection 12.13.Interpretation …………………………………… 57
\nSection 12.14.Responsibility for Obligations of Newco AG ………….. 57
\nSection 12.15.Consent to Jurisdiction …………………………… 57
\n<\/c><\/s><\/caption>\n<\/table>\n
iv
\n 6
\n EXHIBIT INDEX<\/p>\n
Exhibit A — Annex of Defined Terms
\nExhibit B-1 — Form of Chrysler Affiliate Agreement
\nExhibit B-2 — Form of Daimler-Benz Affiliate Agreement
\nExhibit C — Form of Amended and Restated Certificate of Incorporation of
\n Chrysler Merger Sub
\nExhibit D — Form of By-laws of Chrysler Merger Sub
\nExhibit E — Designated Officers of Chrysler and Daimler-Benz<\/p>\n
v
\n 7
\n BUSINESS COMBINATION AGREEMENT<\/p>\n
BUSINESS COMBINATION AGREEMENT (this “Agreement”), dated as of May
\n7, 1998, among Daimler-Benz Aktiengesellschaft, an Aktiengesellschaft organized
\nand existing under the laws of the Federal Republic of Germany (“Daimler-Benz”),
\nChrysler Corporation, a Delaware corporation (“Chrysler”), and Oppenheim
\nAktiengesellschaft, an Aktiengesellschaft organized and existing under the laws
\nof the Federal Republic of Germany (“Newco AG”).<\/p>\n
WHEREAS, Daimler-Benz and Chrysler desire to combine their
\nrespective businesses, stockholder groups, managements and other constituencies
\nin a merger-of-equals transaction upon the terms and subject to the conditions
\nof this Agreement;<\/p>\n
WHEREAS, Daimler-Benz, Chrysler and Newco AG desire to make certain
\nrepresentations, warranties, covenants and agreements in connection with the
\ntransactions contemplated by this Agreement;<\/p>\n
WHEREAS, the Supervisory Board (Aufsichtsrat) of Newco AG and the
\nManagement Board (Vorstand) of each of Daimler-Benz and Newco AG and the Board
\nof Directors of Chrysler have approved the transactions contemplated by this
\nAgreement in accordance with the laws of their respective jurisdictions of
\norganization and have authorized the execution and delivery of this Agreement;<\/p>\n
WHEREAS, Deutsche Bank Atkiengesellschaft has informed Daimler-Benz
\nthat such stockholder supports the transactions involving Daimler-Benz and Newco
\nAG contemplated by this Agreement;<\/p>\n
WHEREAS, Tracinda Corporation has entered into a Stockholder’s
\nAgreement, dated the date hereof, among Daimler-Benz, Chrysler and such
\nstockholder (the “Chrysler Stockholder’s Agreement”), pursuant to which such
\nstockholder has agreed to vote all shares of Chrysler Common Stock owned by it
\nin favor of the transactions involving Chrysler contemplated by this Agreement
\nat the Chrysler Stockholders Meeting;<\/p>\n
WHEREAS, for United States federal income tax purposes the parties
\nintend that (i) the Chrysler Exchange, (a) will qualify as a reorganization
\nwithin the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
\namended (the “Code”), and\/or (b) when integrated with the Daimler-Benz Exchange
\nOffer and taking into account the Daimler-Benz Merger, will be treated as a
\ntransaction described in Section 351(a) of the Code, (ii) the Daimler-Benz
\nExchange Offer either (a) when integrated with the Chrysler Merger and the U.S.
\nShare Exchange, will be treated as a transaction described in Section 351(a) of
\nthe Code or (b) if integrated with the Daimler-Benz Merger, will qualify as a
\nreorganization within the meaning of Section 368(a) of the Code, and (iii) this
\nAgreement shall be, and is hereby, adopted as a plan of reorganization for
\npurposes of Section 368(a) of the Code;
\n 8
\n WHEREAS, the parties intend that the Chrysler Merger, together with
\nthe U.S. Share Exchange, will qualify for an exception to the general rule of
\nSection 367(a)(1) of the Code;<\/p>\n
WHEREAS, for German tax purposes the Daimler-Benz Exchange Offer and
\nthe Daimler-Benz Merger are intended not to result in the recognition of any
\ngain or loss by Newco AG, Daimler-Benz and stockholders of Daimler-Benz;<\/p>\n
WHEREAS, for financial reporting purposes the parties intend that
\nthe transactions contemplated by this Agreement will be accounted for as a
\n“pooling-of-interests” transaction under United Stated generally accepted
\naccounting principles (“US GAAP”); and<\/p>\n
WHEREAS, capitalized terms used in this Agreement and not elsewhere
\ndefined shall have the respective meanings set forth in Exhibit A hereto;<\/p>\n
NOW, THEREFORE, in consideration of the foregoing and the mutual
\nrepresentations, warranties, covenants and agreements herein contained, and
\nintending to be legally bound hereby, Daimler-Benz, Chrysler and Newco AG agree
\nas follows:<\/p>\n
ARTICLE I<\/p>\n
DAIMLER-BENZ EXCHANGE OFFER<\/p>\n
Section 1.1. The Daimler-Benz Exchange Offer. Promptly after the
\nDaimler-Benz Stockholder Approval and the vote necessary to obtain the Chrysler
\nStockholder Approval and so long as this Agreement has not been terminated in
\naccordance with Section 11.1, Newco AG shall commence an offer (the
\n“Daimler-Benz Exchange Offer”), which may consist of one offer made in the
\nUnited States and one made elsewhere, to (i) the holders of Ordinary Shares of
\nDM 5 nominal value each of Daimler-Benz or the corresponding no par value share,
\nas the case may be (the “Daimler-Benz Ordinary Shares”), to exchange, subject to
\nthe Daimler-Benz Exchange Offer Conditions, one no par value Ordinary Share of
\nNewco AG (the “Newco Ordinary Shares”) for each Daimler-Benz Ordinary Share held
\nby such holder, and (ii) the holders of Daimler-Benz American Depositary Shares
\nrepresenting Daimler-Benz Ordinary Shares (“Daimler-Benz ADSs”) to exchange,
\nsubject to the Daimler-Benz Exchange Offer Conditions, one Newco American
\nDepositary Share representing one Newco Ordinary Share (“Newco ADSs”) for each
\nDaimler-Benz ADS held by such holder (such one-for-one exchange offered in the
\nforegoing clauses (i) and (ii) being referred to herein as the “Daimler-Benz
\nExchange Offer Ratio”). The obligation of Newco AG to issue Newco Ordinary
\nShares in exchange for Daimler-Benz Ordinary Shares and to cause the issuance of
\nNewco ADSs in exchange for Daimler-Benz ADSs, in each case tendered pursuant to
\nthe Daimler-Benz Exchange Offer, shall be subject only to this Agreement not
\nhaving been terminated pursuant to Section 11.1 and to the satisfaction or
\nwaiver (if permissible under this Agreement and effected in accordance with
\nSection 12.11) of (1) the condition that such number of Daimler-Benz Ordinary
\nShares and Daimler-Benz ADSs which in the aggregate represent at least that
\nnumber of outstanding<\/p>\n
2
\n 9
\nDaimler-Benz Ordinary Shares required for the transactions contemplated by this
\nAgreement to be accounted for as a “pooling-of-interests” under US GAAP shall
\nhave been validly tendered, not withdrawn and available for purchase immediately
\nprior to the Daimler-Benz Exchange Offer Expiration Date (the “Minimum
\nCondition”); and (2) the conditions set forth in Article X of this Agreement,
\nother than the condition set forth in Section 10.1(i) (together with the Minimum
\nCondition, the “Daimler-Benz Exchange Offer Conditions”). The Minimum Condition
\nshall not be waived and the Daimler-Benz Exchange Offer Ratio shall not be
\namended without the written consent of both Chrysler and Daimler-Benz; provided,
\nhowever, if the number of Daimler-Benz Ordinary Shares and Daimler-Benz ADSs
\nvalidly tendered, not withdrawn and available for purchase immediately prior to
\nthe Daimler-Benz Exchange Offer Expiration Date shall not satisfy the Minimum
\nCondition, but shall be in excess of 80% of the capital stock of Daimler-Benz on
\na Fully Diluted Basis (the “80% Minimum”), the Minimum Condition shall mean the
\n80% Minimum unless Chrysler and Daimler-Benz otherwise agree. The expiration
\ndate of the Daimler-Benz Exchange Offer shall initially be the date which is 30
\ndays after commencement of the Daimler-Benz Exchange Offer (such date, as it may
\nbe extended as provided herein, the “Daimler-Benz Exchange Offer Expiration
\nDate”) and, if any of the Daimler-Benz Exchange Offer Conditions is unsatisfied
\nat such time and if requested by either Chrysler or Daimler-Benz, or if
\nrequested by either Chrysler or Daimler-Benz pursuant to clause (ii) below,
\nshall be extended by Newco AG from time to time thereafter until the earliest of
\n(i) the maximum period permitted under the German Takeover Code
\n(Ubernahmekodex der Borsensachverstandigenkommission beim Bundesministerium der
\nFinanzen) (the “German Takeover Code”) or as otherwise approved by the Executive
\nOffice of the Takeover Commission (Ubernahmekommission pursuant to the German
\nTakeover Code) (the “Executive Office of the Takeover Commission”), (ii) the
\nclose of business (Frankfurt time) on the day on which Daimler-Benz and Newco AG
\nhave publicly announced that all of the Daimler-Benz Exchange Offer Conditions
\nshall have been satisfied or that they have been duly waived (or, if later, a
\ndate that is five business days following the initial expiration date, if either
\nChrysler or Daimler-Benz shall have requested Newco AG to extend the
\nDaimler-Benz Exchange Offer Expiration Date to such date) and (iii) such time as
\nthis Agreement is terminated in accordance with Section 11.1. Subject only to
\nthe conditions set forth above, at the earliest practicable time following the
\nDaimler-Benz Exchange Offer Expiration Date, Newco AG shall accept for exchange
\nand shall exchange all Daimler-Benz Ordinary Shares and Daimler-Benz ADSs
\nvalidly tendered and not withdrawn (the “German Share Exchange”) and shall
\neffect the German Share Exchange in accordance with applicable law by
\nregistering the increase of the Newco AG stated share capital in kind with the
\ncommercial register (Handelsregister) for Newco AG.<\/p>\n
Section 1.2. Daimler-Benz Exchange Agent. Newco AG shall appoint a
\nbank or trust company or other independent financial institution reasonably
\nsatisfactory to Daimler-Benz and Chrysler to act as exchange agent for the
\nDaimler-Benz Exchange Offer (the “Daimler-Benz Exchange Agent”). Newco AG shall
\nenter into an Exchange Agent Agreement with the Daimler-Benz Exchange Agent in
\nform and substance reasonably satisfactory to Daimler-Benz and Chrysler, which
\nagreement shall set forth the duties, responsibilities and obligations of the
\nDaimler-Benz Exchange Agent consistent with the terms of this Agreement. The
\nDaimler-Benz Exchange Agent shall accept the Daimler-Benz Ordinary Shares and
\nDaimler-Benz ADSs tendered pursuant to the<\/p>\n
3
\n 10
\nDaimler-Benz Exchange Offer and contribute such Daimler-Benz Ordinary Shares and
\nDaimler-Benz ADSs upon satisfaction or waiver of the Daimler-Benz Exchange Offer
\nConditions to Newco AG in exchange for Newco Ordinary Shares and Newco ADSs,
\nrespectively. Subject to Section 9.16, such exchange shall be effected in
\naccordance with Sections 52 and 183 et seq. (including in particular
\nSection 187) of the German Stock Corporation Law (Aktiengesetz) by registering
\nthe contribution in kind agreement (Einbringungsvertrag) and the increase of the
\nNewco AG stated share capital with the commercial register (Handelsregister) for
\nNewco AG.<\/p>\n
Section 1.3. German Exchange Offer Documents. As soon as practicable
\nprior to the date that the Daimler-Benz Exchange Offer commences, Newco AG shall
\ninform all German stock exchanges on which the Daimler-Benz Ordinary Shares are
\nlisted, the German Federal Supervisory Authority for Securities Trading
\n(Bundesaufsichtsamt fur den Wertpapierhandel) and the Executive Office of the
\nTakeover Commission about the content of the Daimler-Benz Exchange Offer. Not
\nlater than one day prior to the date that the Daimler-Benz Exchange Offer
\ncommences, Newco AG shall issue a combined listing and sales prospectus pursuant
\nto the German Stock Exchange Law (Borsengesetz) and the German Sales Prospectus
\nLaw (Wertpapier-Verkaufsprospektgesetz) (the “German Prospectus”), and on the
\ndate that the Daimler-Benz Exchange Offer commences, Newco AG shall publish an
\nexchange offer pursuant to the German Takeover Code, each with respect to the
\nDaimler-Benz Exchange Offer (the “German Exchange Offer Documents”). The German
\nExchange Offer Documents shall contain the recommendation of the Board of
\nManagement (Vorstand) of Daimler-Benz that holders of the Daimler-Benz Ordinary
\nShares accept the Daimler-Benz Exchange Offer and tender the Daimler-Benz
\nOrdinary Shares into the Daimler-Benz Exchange Offer.<\/p>\n
Section 1.4. U.S. Exchange Documents. (a) As promptly as practicable
\non the date of commencement of the Daimler-Benz Exchange Offer, Newco AG shall
\nfile with the U.S. Securities and Exchange Commission (“SEC”) a Tender Offer
\nStatement on Schedule 14D-1 (together with all amendments and supplements
\nthereto, the “Schedule 14D-1”). The Schedule 14D-1 shall contain or shall
\nincorporate by reference an offer to purchase containing the information
\nincluded or incorporated by reference in the Proxy Statement\/Prospectus and the
\nforms of the related letter of transmittal and all other ancillary offer
\ndocuments.<\/p>\n
(b) As promptly as practicable on the date of commencement of
\nthe Daimler-Benz Exchange Offer, Daimler-Benz shall file with the SEC a Tender
\nOffer Solicitation\/Recommendation Statement on Schedule 14D-9 (together with
\nall amendments and supplements thereto, the “Schedule 14D-9”), which shall
\ncontain the recommendation of the Board of Management (Vorstand) of Daimler-Benz
\nthat holders of Daimler-Benz Ordinary Shares and Daimler-Benz ADSs who are U.S.
\nPersons accept the Daimler-Benz Exchange Offer and tender their Daimler-Benz
\nOrdinary Shares and Daimler-Benz ADSs into the Daimler-Benz Exchange Offer. The
\nSchedule 14D-1 and the Schedule 14D-9 together with all amendments and
\nsupplements thereto are referred to herein collectively as the “U.S. Exchange
\nOffer Documents.” The German Exchange Offer Documents together with the U.S.
\nExchange Offer Documents are collectively referred to hereinafter as the
\n“Exchange Offer Documents.”<\/p>\n
4
\n 11
\n Section 1.5. Antidilution Protection for Daimler-Benz Exchange Offer
\nRatio. If, between the date of this Agreement and the Daimler-Benz Exchange
\nOffer Expiration Date, the outstanding Newco Ordinary Shares, Daimler-Benz
\nOrdinary Shares or shares of Chrysler Common Stock shall have been changed into
\na different number of shares or a different class by reason of any
\nreclassification, recapitalization, stock split, combination, or exchange of
\nshares or a stock dividend or dividend payable in any other securities shall be
\ndeclared with a record date within such period, or any similar event shall have
\noccurred, the Daimler-Benz Exchange Offer Ratio shall be appropriately adjusted
\nto provide to the holders of Daimler-Benz Ordinary Shares and Daimler-Benz ADSs
\nthe same economic effect as contemplated by this Agreement prior to such event.<\/p>\n
Section 1.6. Newco AG Name. Unless Newco AG’s legally registered
\nname shall previously have been established as such, promptly following the
\nconsummation of the Daimler-Benz Exchange Offer, Newco AG, Daimler-Benz and
\nChrysler shall cause the name of Newco AG to be changed and legally registered
\nin all appropriate jurisdictions as “Daimler Chrysler Aktiengesellschaft.”<\/p>\n
ARTICLE II<\/p>\n
CHRYSLER MERGER<\/p>\n
Section 2.1. Formation of Chrysler Merger Sub. As promptly as
\npossible following the date hereof, Newco AG shall appoint a United States bank
\nor trust company or other independent financial institution in the United States
\nreasonably satisfactory to Daimler-Benz and Chrysler to act as exchange agent
\nfor the U.S. Share Exchange and the delivery of the U.S. Merger Consideration to
\nformer stockholders of Chrysler (the “U.S. Exchange Agent”). Following such
\nappointment, the U.S. Exchange Agent or Chrysler shall cause to be incorporated
\npursuant to the DGCL a corporation which shall be a constituent company in the
\nChrysler Merger (“Chrysler Merger Sub”). Daimler-Benz, Newco AG and Chrysler
\nshall enter into an Exchange Agent Agreement with the U.S. Exchange Agent in
\nform and substance reasonably satisfactory to Daimler-Benz and Chrysler, which
\nagreement shall set forth the duties, responsibilities and obligations of the
\nU.S. Exchange Agent consistent with the terms of this Agreement. Solely to
\naccommodate the transactions described in this Article II, the U.S. Exchange
\nAgent shall hold all of the issued and outstanding shares of common stock, par
\nvalue $.01 per share, of Chrysler Merger Sub (the “Chrysler Merger Sub Common
\nStock”).<\/p>\n
Section 2.2. Chrysler Merger. Upon the terms and subject to the
\nconditions of this Agreement and in accordance with the DGCL, at the Effective
\nTime, Chrysler Merger Sub shall be merged with and into Chrysler (the “Chrysler
\nMerger”), and Chrysler shall be the surviving corporation in the Chrysler Merger
\n(the “U.S. Surviving Corporation”). The corporate existence of Chrysler, with
\nall its purposes, rights, privileges, franchises, powers and objects, shall
\ncontinue unaffected and unimpaired by the Chrysler Merger and, as the U.S.
\nSurviving Corporation, it shall<\/p>\n
5
\n 12
\nbe governed by the laws of the State of Delaware and succeed to all rights,
\nassets, liabilities and obligations of Chrysler Merger Sub in accordance with
\nSection 259(a) of the DGCL. The separate existence and corporate organization of
\nChrysler Merger Sub shall cease at the Effective Time.<\/p>\n
Section 2.3. The U.S. Share Exchange. Upon the terms and subject to
\nthe conditions of this Agreement, as soon as possible after the Effective Time,
\nNewco AG will issue the U.S. Merger Consideration to the U.S. Exchange Agent for
\nthe account of the former stockholders of Chrysler, and the U.S. Exchange Agent
\nwill contribute, for the account of the former stockholders of Chrysler, all of
\nthe issued and outstanding shares of Surviving Corporation Common Stock to Newco
\nAG as a transfer in kind (the “U.S. Share Exchange”). Subject to Section 9.16,
\nsuch exchange shall be effected in accordance with Sections 52 and 183 et
\nseq. (including in particular Section 187) of the German Stock Corporation Law
\n(Aktiengesetz) by registering the contribution in kind agreement
\n(Einbringungsvertrag) and the increase of the Newco AG stated share capital with
\nthe commercial register (Handelsregister) for Newco AG. At the Effective Time,
\nthe obligation of the parties to effect the U.S. Share Exchange shall be
\nunconditional.<\/p>\n
Section 2.4. Conversion of Chrysler Common Stock in the Chrysler
\nMerger. At the Effective Time, by virtue of the Chrysler Merger and without any
\naction on the part of the holder of any share of common stock, par value $1.00
\nper share, of Chrysler (including the associated preferred share purchase
\nrights, the “Chrysler Common Stock”):<\/p>\n
(a) The Chrysler Common Stock which is held by Chrysler as
\n treasury stock (or held by any wholly owned Subsidiary of Chrysler) shall
\n be cancelled and retired and shall cease to exist, without any conversion
\n thereof, and no payment shall be made with respect thereto.<\/p>\n
(b) Each share of Chrysler Common Stock issued and outstanding
\n immediately prior to the Effective Time (other than any shares canceled
\n pursuant to Section 2.4(a)) shall be converted into the right to receive,
\n upon surrender of the certificate formerly representing such share of
\n Chrysler Common Stock pursuant to Section 2.5, that fraction of a Newco
\n ADS expressed as a decimal carried to 4 digits which results from the
\n computation in the Exchange Ratio Formula. Such decimal fraction of a
\n Newco ADS is referred to herein as the “U.S. Exchange Ratio” and the Newco
\n Ordinary Shares (including those represented by Newco ADSs) to be issued
\n in the Chrysler Merger are referred to herein as the “U.S. Merger
\n Consideration.” Notwithstanding the foregoing, prior to the delivery of
\n the Newco ADSs to the U.S. Exchange Agent pursuant to Section 2.5 for the
\n account of the former stockholders of Chrysler in the U.S. Share Exchange,
\n each such stockholder shall, in addition to his, her or its right to
\n receive such Newco ADSs, have a continuing ownership interest in the U.S.
\n Surviving Corporation identical in all respects to his, her or its
\n ownership interest in Chrysler immediately prior to the Effective Time,
\n such ownership interest to be extinguished automatically upon such
\n delivery of Newco ADSs to the U.S. Exchange Agent.<\/p>\n
(c) The Exchange Ratio Formula shall be the following:<\/p>\n
6
\n 13
\n Exchange Ratio = 103.4929 x (DP x DAP) + SOP
\n ————————
\n (DAP x DP) x (DAP + SOP)<\/p>\n
As used in the Exchange Ratio Formula, the following terms have the
\nfollowing meaning:<\/p>\n
“DAP” refers to Daimler-Benz’s adjusted price per Daimler-Benz
\n Ordinary Share and is herein defined to mean (i) that number of Deutsche
\n Marks equal to 190.8 minus the sum of (A) the per Daimler-Benz Ordinary
\n Share regular annual dividend in respect of the year 1997 payable on or
\n about May 28, 1998, plus (B) the per Daimler-Benz Ordinary Share amount of
\n the Special Distribution payable on or about June 15, 1998, or (ii) in the
\n event that Daimler-Benz fails to pay its previously announced Special
\n Distribution payable on or about June 15, 1998, that number of Deutsche
\n Marks equal to 185.09 minus the per Daimler-Benz Ordinary Share regular
\n annual dividend in respect to the year 1997 payable on or about May 28,
\n 1998.<\/p>\n
“SOP” refers to Daimler-Benz’s Schutt aus\/Hol zuruck share
\n offering proceeds and is herein defined to mean (i) the aggregate amount
\n of net proceeds, expressed in Deutsche Marks, received by Daimler-Benz in
\n respect of its global offering of rights to acquire Daimler-Benz Ordinary
\n Shares and Daimler-Benz ADSs, which is currently scheduled to become
\n effective on or about June 8, 1998, and which is described generally in
\n the Registration Statement (File No. 333-8662) filed with the SEC on April
\n 22, 1998 (the “Rights Offering”), divided by (ii) 516,748,337 if the
\n Rights are not distributed to the holders of the Notes or 523,299,381 if
\n the Rights are distributed to such holders; provided that SOP shall equal
\n 0 if the Rights Offering is canceled or otherwise is not consummated.<\/p>\n
“DP” refers to the Rights Offering discounted price expressed
\n as a percentage of the then current market price and is herein defined to
\n mean that decimal fraction carried to four digits determined by dividing
\n (1) the offering price per new Daimler-Benz Ordinary Share (expressed in
\n Deutsche Marks) in the Rights Offering by (2) the reported last sale price
\n per Daimler-Benz Ordinary Share on the FSE, as reported by the FSE, on the
\n last full trading day which immediately precedes the public announcement
\n of the price at which a holder of a Right will be entitled to purchase a
\n Daimler-Benz Ordinary Share pursuant to the Rights Offering; provided that
\n DP shall equal 1 if the Rights Offering is canceled or otherwise is not
\n consummated.<\/p>\n
(d) Each share of Chrysler Merger Sub Common Stock issued and
\n outstanding immediately prior to the Effective Time shall continue to be
\n an issued and outstanding share of common stock, par value $.01 per share,
\n of the U.S. Surviving Corporation (“Surviving Corporation Common Stock”).<\/p>\n
7
\n 14
\n Section 2.5. Exchange of Shares of Chrysler Common Stock.<\/p>\n
(a) U.S. Exchange Fund. The aggregate U.S. Merger
\nConsideration transferred by Newco AG to the U.S. Exchange Agent pursuant to
\nSection 2.3, together with any dividends or other distributions with respect to
\nNewco ADSs to be made pursuant to Section 2.5(c), is referred to herein as the
\n“U.S. Exchange Fund.”<\/p>\n
(b) Exchange Procedures. Promptly after the Effective Time,
\nthe U.S. Exchange Agent will mail to each former record holder of shares of
\nChrysler Common Stock entitled to receive U.S. Merger Consideration pursuant to
\nSection 2.4(b) a form of letter of transmittal which shall specify that the
\ndelivery shall be effected, and risk of loss and title shall pass, only upon
\nproper delivery of a certificate or certificates formerly representing shares of
\nChrysler Common Stock (“Old Chrysler Certificates”) to the U.S. Exchange Agent
\nand instructions for use in effecting the surrender to the U.S. Exchange Agent
\nof Old Chrysler Certificates in exchange for Newco ADSs. The letter of
\ntransmittal shall contain such other terms and conditions as Daimler-Benz and
\nChrysler reasonably specify. Upon surrender of an Old Chrysler Certificate to
\nthe U.S. Exchange Agent, together with a letter of transmittal duly executed and
\ncompleted in accordance with the instructions thereto, and any other documents
\nreasonably required by the U.S. Exchange Agent or Daimler-Benz and Chrysler, (i)
\nthe holder of such Old Chrysler Certificate shall be entitled to receive in
\nexchange therefor (x) a certificate registered in the name of such holder
\nrepresenting the number of whole Newco ADSs and any fractional Newco ADS into
\nwhich the shares previously represented by such Old Chrysler Certificate shall
\nhave been converted at the Effective Time and (y) if applicable, a check payable
\nto such holder representing the payment of any dividends and distributions
\npursuant to Section 2.5(c), and (ii) such Old Chrysler Certificate shall
\nforthwith be cancelled. If any cash is to be paid to, or any certificate
\nrepresenting Newco ADSs is to be issued in the name of, a person other than the
\nperson in whose name the Old Chrysler Certificate so surrendered in exchange
\ntherefor is registered, it shall be a condition of the payment or issuance that
\nthe Old Chrysler Certificate so surrendered shall be properly endorsed or
\notherwise in proper form for transfer and that the person requesting such
\nexchange shall pay any transfer or other taxes required by reason of the payment
\nof cash to, or the issuance of a certificate representing Newco ADSs in the name
\nof, a person other than the registered holder of the Old Chrysler Certificate so
\nsurrendered or shall establish to the satisfaction of the U.S. Exchange Agent
\nand Newco AG that such tax has been paid or is not applicable. Until surrendered
\nin accordance with the provisions of this Section 2.5 and subject to the third
\nsentence of Section 2.4(b), each Old Chrysler Certificate shall, at and after
\nthe Effective Time, represent for all purposes only the right to receive Newco
\nADSs and any dividends and distributions as provided in Section 2.5(c), if any.<\/p>\n
(c) Dividends; Distributions. No dividends or other
\ndistributions declared after the Effective Time on Newco Ordinary Shares
\nunderlying the Newco ADSs and payable to the holders of record thereof after the
\nEffective Time shall be paid to the holder of any unsurrendered Old Chrysler
\nCertificates with respect to which the Newco ADSs shall have been issued in the
\nChrysler Merger. All such dividends or other distributions shall be paid by
\nNewco AG to the U.S. Exchange Agent (on behalf of holders of unsurrendered Old
\nChrysler Certificates) and shall be<\/p>\n
8
\n 15
\nincluded in the U.S. Exchange Fund, in each case until such Old Chrysler
\nCertificates shall be surrendered as provided herein, but (i) upon such
\nsurrender there shall be paid to the person in whose name the certificates
\nrepresenting such Newco ADSs shall be issued the amount of dividends theretofore
\npaid with respect to such Newco ADSs as of any date subsequent to the Effective
\nTime, and (ii) at the appropriate payment date or as soon as practicable
\nthereafter, there shall be paid to such person the amount of dividends with a
\nrecord date after the Effective Time but prior to surrender and a payment date
\nsubsequent to surrender payable with respect to such Newco ADSs, subject in any
\ncase to any applicable abandoned property, escheat and similar laws. No interest
\nshall be payable with respect to the payment of such dividends on surrender of
\noutstanding Old Chrysler Certificates.<\/p>\n
(d) Final Settlement. From and after the Effective Time, the
\nholders of Old Chrysler Certificates shall cease to have any rights with respect
\nto such shares except as otherwise provided herein or by applicable law. All
\nrights to receive cash, if any, and Newco ADSs into which shares of Chrysler
\nCommon Stock shall have been converted pursuant to this Article II shall be
\ndeemed to have been paid or issued, as the case may be, in full satisfaction of
\nall rights pertaining to such shares of Chrysler Common Stock.<\/p>\n
(e) Transfer Books. After the Effective Time, there shall be
\nno further registration of transfers on the stock transfer books of the U.S.
\nSurviving Corporation of shares of Chrysler Common Stock which were outstanding
\nimmediately prior to the Effective Time. If, after the Effective Time, Old
\nChrysler Certificates are presented to the U.S. Surviving Corporation, they
\nshall be cancelled and exchanged for cash or certificates representing Newco
\nADSs, or both, in accordance with the procedures set forth in this Article II.<\/p>\n
(f) Affiliates Letter. Notwithstanding anything to the
\ncontrary contained herein, for purposes of qualifying the transactions
\ncontemplated hereby for “pooling-of-interests” accounting treatment under
\nOpinion No. 16 “Business Combinations” of the Accounting Principles Board of the
\nAmerican Institute of Certified Public Accountants (“APB No. 16”) and applicable
\nSEC rules and regulations, no Newco ADSs or cash shall be delivered to a person
\nwho is an affiliate of Chrysler unless such person has executed and delivered an
\nagreement in the form of Exhibit B-1 or unless Chrysler and Daimler-Benz shall
\nhave determined that the transactions contemplated by this Agreement will not be
\naccounted for as a “pooling-of-interests” under US GAAP because of other
\ncircumstances.<\/p>\n
(g) Termination of U.S. Exchange Fund. Any portion of the U.S.
\nExchange Fund that remains undistributed to the holders of the Old Chrysler
\nCertificates one year after the Effective Time shall be delivered by the U.S.
\nExchange Agent to a depositary bank designated by Newco AG, upon demand,
\nwhereupon such depositary bank shall hold the U.S. Exchange Fund on behalf of
\nholders of unsurrendered Old Chrysler Certificates, and any holders of the Old
\nChrysler Certificates who have not theretofore complied with this Section 2.5
\nshall thereafter look only to Newco AG or such depositary bank for payment of
\ntheir claim for U.S. Merger Consideration and any dividends or distributions
\nwith respect to Newco ADSs and Newco AG shall<\/p>\n
9
\n 16
\ncause the depositary bank to satisfy such claim. Such depositary bank shall
\nmaintain an office in the City of New York where holders of Old Chrysler
\nCertificates may comply with this Article II.<\/p>\n
(h) Withholding Taxes. Each of the U.S. Exchange Agent and
\nNewco AG shall be entitled to deduct and withhold from the consideration
\notherwise payable pursuant to this Agreement to any holder of Old Chrysler
\nCertificates such amounts as it is required to deduct and withhold with respect
\nto the making of such payment under the Code, or any provision of state, local
\nor non-U.S. tax law. To the extent that amounts are so withheld by the U.S.
\nExchange Agent or Newco AG, as the case may be, such withholdings shall be
\ntreated for all purposes of this Agreement as having been paid to the holder of
\nthe Old Chrysler Certificate in respect of which such deduction and withholding
\nwas made by the U.S. Exchange Agent or Newco AG, as the case may be.<\/p>\n
(i) No Liability. None of Daimler-Benz, Chrysler, the U.S.
\nSurviving Corporation, Newco AG or the U.S. Exchange Agent shall be liable to
\nany person in respect of any Newco ADSs, any dividends or distributions with
\nrespect to Newco Ordinary Shares underlying such Newco ADSs or any cash from the
\nU.S. Exchange Fund, in each case delivered to a public official pursuant to any
\napplicable abandoned property, escheat or similar law.<\/p>\n
(j) Lost, Stolen or Destroyed Certificates. If any Old
\nChrysler Certificate shall have been lost, stolen or destroyed, upon the making
\nof an affidavit of that fact by the person claiming such Old Chrysler
\nCertificate to be lost, stolen or destroyed and, if required by the U.S.
\nSurviving Corporation, Newco AG or the U.S. Exchange Agent, the posting by such
\nperson of a bond in such reasonable amount as such entity may direct as
\nindemnity against any claim that may be made against it with respect to such Old
\nChrysler Certificate, the U.S. Exchange Agent shall issue in exchange for such
\nlost, stolen or destroyed Old Chrysler Certificate the U.S. Merger Consideration
\nand, if applicable, any unpaid dividends and distributions on shares of Newco
\nOrdinary Shares deliverable in respect thereof, in each case pursuant to this
\nAgreement.<\/p>\n
Section 2.6. Treatment of Chrysler Stock Plans. (a) Subject to the
\nconsummation of the Chrysler Merger, immediately prior to the Effective Time
\neach outstanding Chrysler Employee Stock Option will become exercisable, and
\nshall be deemed to be exercised, and (i) if the transactions contemplated by
\nthis Agreement are accounted for as a “pooling-of-interests” under APB No. 16,
\nwill then be converted (and such Chrysler Employee Stock Option will be
\nextinguished) into a right to receive that number of whole Newco ADSs and any
\nfractional Newco ADS determined in accordance with the following formula:<\/p>\n
Option Shares x (Closing Value – Exercise Price) x 1.02
\n ——————————————————-
\n ADS Closing Price<\/p>\n
or (ii) if subclause (i) is not applicable, will be settled (and such Chrysler
\nEmployee Stock Option will be extinguished) in an amount of cash to be paid by
\nChrysler (and not directly or indirectly reimbursed by Newco AG or Daimler-Benz)
\nand determined in accordance with the following formula: Option Shares x
\n(Closing Value – Exercise Price), where “Option Shares” is the number
\n 10
\n 17
\nof shares of Chrysler Common Stock subject to the Chrysler Employee Stock
\nOption; “Closing Value” is the closing per share price of Chrysler Common Stock
\nas reported in The Wall Street Journal for the last trading day prior to the
\nEffective Time; “Exercise Price” is the per share exercise price for shares
\nsubject to the Chrysler Employee Stock Option; and “ADS Closing Price” is the
\nclosing per share price of a Daimler-Benz ADS as reported in The Wall Street
\nJournal for the last trading day prior to the Effective Time. As soon as
\npracticable following the Effective Time and immediately prior to the U.S. Share
\nExchange, Chrysler shall deliver to the U.S. Exchange Agent the aggregate number
\nof shares of Chrysler Common Stock issuable pursuant to the deemed exercise
\nprovided in this Section 2.6(a) and, subject to Section 9.16, for contribution
\nin kind to Newco AG by the U.S. Exchange Agent on behalf of the Chrysler
\nEmployee Optionholders.<\/p>\n
(b) Subject to the consummation of the Chrysler Merger,
\nimmediately prior to the Effective Time each outstanding Chrysler performance
\nshare award shall be deemed vested in accordance with the terms of Chrysler’s
\n1991 Stock Compensation Plan and (i) if the transactions contemplated by this
\nAgreement are accounted for as a “pooling-of-interests” under APB No. 16, shall
\nbe settled with that number of whole Newco ADSs and any fractional Newco ADS
\ndetermined in accordance with the following formula:<\/p>\n
Performance Shares x Closing Value x 1.02
\n —————————————–
\n ADS Closing Price<\/p>\n
or (ii) if subclause (i) is not applicable, shall be settled in an amount of
\ncash to be paid by Chrysler (and not directly or indirectly reimbursed by Newco
\nAG or Daimler-Benz) and determined in accordance with the following formula:
\nPerformance Shares x Closing Value where “Performance Shares” is the number of
\nshares of Chrysler Common Stock subject to the performance share award. As soon
\nas practicable following the Effective Time and immediately prior to the U.S.
\nShare Exchange, Chrysler shall transmit to the U.S. Exchange Agent the aggregate
\nnumber of shares of Chrysler Common Stock subject to outstanding performance
\nshare awards, subject to Section 9.16, for contribution in kind into Newco AG by
\nthe U.S. Exchange Agent on behalf of the holders of performance share awards.<\/p>\n
(c) Subject to the consummation of the Chrysler Merger,
\nimmediately prior to the Effective Time, each outstanding Chrysler stock unit
\nshall be deemed vested in accordance with the terms of Chrysler’s 1996
\nNon-employee Director Stock Unit Plan and (i) if the transactions contemplated
\nby this Agreement are accounted for as a “pooling-of-interests” under APB No.
\n16, shall be settled with that number of whole Newco ADSs and any fractional
\nNewco ADS determined in accordance with the following formula:<\/p>\n
Closing Value x 1.02
\n ——————–
\n ADS Closing Price<\/p>\n
or (ii) if subclause (i) is not applicable, shall be settled in an amount of
\ncash to be paid by Chrysler (and not directly or indirectly reimbursed by Newco
\nAG or Daimler-Benz) and equal to the Closing<\/p>\n
11
\n 18
\nValue. As soon as practicable following the Effective Time and immediately prior
\nto the U.S. Share Exchange, Chrysler shall transmit to the U.S. Exchange Agent
\nthe aggregate number of shares of Chrysler Common Stock subject to outstanding
\nstock units, subject to Section 9.16, for contribution in kind into Newco AG by
\nthe U.S. Exchange Agent on behalf of the holders of stock units.<\/p>\n
(d) Subject to the consummation of the Chrysler Merger
\nimmediately prior to the Effective Time, each outstanding Chrysler restricted
\nstock unit award shall be deemed vested in accordance with the terms of
\nChrysler’s 1991 Stock Compensation Plan and (i) if the transactions contemplated
\nby this Agreement are accounted for as a “pooling-of-interests” under APB No.
\n16, shall be settled with that number of whole Newco ADSs and any fractional
\nNewco ADS determined in accordance with the following formula:<\/p>\n
Restricted Stock Units x Closing Value x 1.02
\n ———————————————
\n ADS Closing Price<\/p>\n
or (ii) if subclause (i) is not applicable, shall be settled in an amount of
\ncash to be paid by Chrysler (and not directly or indirectly reimbursed by Newco
\nAG or Daimler-Benz) and determined in accordance with the following formula:
\nRestricted Stock Units x Closing Value, where “Restricted Stock Units” is the
\nnumber of shares of Chrysler Common Stock subject to the restricted stock unit
\naward. As soon as practicable following the Effective Time and immediately prior
\nto the U.S. Share Exchange, Chrysler shall transmit to the U.S. Exchange Agent
\nthe aggregate number of shares of Chrysler Common Stock subject to outstanding
\nrestricted stock unit awards, subject to Section 9.16, for contribution in kind
\ninto Newco AG by the U.S. Exchange Agent on behalf of the holders of restricted
\nstock unit awards.<\/p>\n
(e) To the extent that any person would otherwise be entitled
\nto receive a fraction of a Newco ADS pursuant to this Section 2.6, such fraction
\nshall be treated in accordance with Section 3.10.<\/p>\n
(f) If the transactions contemplated by this Agreement are
\naccounted for as a “pooling-of-interests” under APB No. 16, as soon as
\npracticable following the Effective Time, Newco AG shall cause the U.S. Exchange
\nAgent to deliver to the former holders of Chrysler Employee Stock Options,
\nChrysler performance share awards, Chrysler stock units and Chrysler restricted
\nstock unit awards, the Newco ADSs payable pursuant to this Section 2.6. If the
\ntransactions contemplated by this Agreement are not accounted for as a
\n“pooling-of-interests” under APB No. 16, as soon as practicable following the
\nEffective Time, Chrysler shall deliver to the former holders of Chrysler
\nEmployee Stock Options, Chrysler performance share awards, Chrysler stock units
\nand Chrysler restricted stock unit awards, any cash amount payable pursuant to
\nthis Section 2.6.<\/p>\n
(g) If the transactions contemplated by this Agreement are
\naccounted for as a “pooling-of-interests” under APB No. 16, Newco AG and
\nChrysler shall establish a mechanism whereby each person who is permitted to
\nsell Newco ADSs received pursuant to this Section 2.6 without registration under
\nthe Securities Act can sell all or a portion of such Newco ADSs through<\/p>\n
12
\n 19
\nopen market sales of such Newco ADSs to be effected by a broker selected by
\nChrysler and reasonably satisfactory to Daimler-Benz. Chrysler shall, at least
\nten days prior to the Effective Time, identify the broker to whom such holders
\nmay direct sales orders. Newco AG shall deliver (or cause the U.S. Exchange
\nAgent to deliver) the aggregate number of Newco ADSs subject to all such sales
\norders received prior to the Effective Time to the broker as soon as practicable
\nthereafter, but no later than five business days after the Effective Time and
\nany holder directing such a sales order shall bear the cost of all expenses,
\nincluding all commissions, related thereto.<\/p>\n
(h) Chrysler agrees to use its reasonable best efforts, if the
\ntransactions contemplated by this Agreement shall be accounted for as a
\n“pooling-of-interests” under APB No. 16, to take such actions (including, but
\nnot limited to, adopting all required amendments) with respect to (i) all
\ncompensation and benefit plans and arrangements and (ii) all awards outstanding
\nunder such plans or arrangements, in each case that are required to enable the
\ntransactions contemplated by this Agreement to be accounted for as a
\n“pooling-of-interests” under APB No.
\n16.<\/p>\n
Section 2.7. Redemption of Chrysler Preferred Stock. Prior to the
\nEffective Time, Chrysler shall have redeemed all outstanding shares of Series A
\nConvertible Preferred Stock, par value $1.00 per share, of Chrysler (the
\n“Chrysler Preferred Stock”) in the manner contemplated by and pursuant to the
\nterms and procedures set forth in the Certificate of Designation, Preferences
\nand Rights with respect to the Chrysler Preferred Stock.<\/p>\n
Section 2.8. Antidilution Protection for U.S. Exchange Ratio. If,
\nbetween the date of this Agreement and the Effective Time, the outstanding Newco
\nOrdinary Shares, Daimler-Benz Ordinary Shares or shares of Chrysler Common Stock
\nshall have been changed into a different number of shares or a different class
\nby reason of any reclassification, recapitalization, stock split, combination or
\nexchange of shares or a stock dividend or dividend payable in any other
\nsecurities shall be declared with a record date within such period, or any
\nsimilar event shall have occurred, the U.S. Exchange Ratio shall be
\nappropriately adjusted to provide to the holders of Chrysler Common Stock the
\nsame economic effect as contemplated by this Agreement prior to such event.<\/p>\n
Section 2.9. Chrysler Merger Closing. Immediately following
\nconsummation of the Daimler-Benz Exchange Offer, the closing of the Chrysler
\nMerger (the “Chrysler Merger Closing”) shall be held at 10:00 a.m. at the
\noffices of Debevoise & Plimpton, 875 Third Avenue, New York, New York, or at
\nsuch other place and time as the parties shall agree. At the Chrysler Merger
\nClosing, a certificate of merger shall be executed and acknowledged by Chrysler
\nMerger Sub and Chrysler and delivered to the Secretary of State of the State of
\nDelaware for filing as provided by the DGCL and, upon completion of such filing,
\nthe Chrysler Merger shall become effective as set forth herein and in such
\ncertificate. The time the Chrysler Merger becomes effective is referred to
\nherein as the “Effective Time.”<\/p>\n
Section 2.10. Certificate of Incorporation. Upon the formation of
\nChrysler Merger Sub, its Certificate of Incorporation shall be substantially in
\nthe form of Exhibit C hereto (the “Chrysler Merger Sub Charter”), and such
\nChrysler Merger Sub Charter will continue to be in effect<\/p>\n
13
\n 20
\nimmediately prior to the Effective Time. The Chrysler Merger Sub Charter shall
\nbe the Certificate of Incorporation of the U.S. Surviving Corporation, until the
\nsame shall thereafter be altered, amended or repealed in accordance with the
\nDGCL and such Certificate of Incorporation.<\/p>\n
Section 2.11. By-laws. Newco AG, Daimler-Benz and Chrysler will take
\nall action necessary to ensure that the By-laws of Chrysler Merger Sub,
\nsubstantially in the form of Exhibit D hereto (the “Chrysler Merger Sub
\nBy-laws”), will be in effect immediately prior to the Effective Time. The
\nChrysler Merger Sub By-laws shall be the By-laws of the U.S. Surviving
\nCorporation, until the same shall thereafter be altered, amended or repealed in
\naccordance with the DGCL, the Amended and Restated Chrysler Merger Sub Charter
\nand such By-laws.<\/p>\n
Section 2.12. Officers. The officers of Chrysler Merger Sub
\nimmediately prior to the Effective Time, who shall be reasonably acceptable to
\nChrysler and Daimler-Benz, shall be the officers of the U.S. Surviving
\nCorporation, and such individuals shall serve until their successors shall have
\nbeen elected and shall qualify.<\/p>\n
Section 2.13. Board of Directors. The directors of Chrysler Merger
\nSub immediately prior to the Effective Time, who shall be reasonably acceptable
\nto Chrysler and Daimler-Benz, shall be the directors of the U.S. Surviving
\nCorporation, and such individuals shall serve until their successors shall have
\nbeen elected and shall qualify.<\/p>\n
ARTICLE III<\/p>\n
DAIMLER-BENZ MERGER<\/p>\n
Section 3.1. Daimler-Benz Merger. As soon as practicable following
\nthe date hereof, Newco AG and Daimler-Benz shall enter into a merger agreement
\npursuant to Section 5 of the German Transformation Act (Umwandlungsgesetz) which
\nshall be in form and substance reasonably satisfactory to Daimler-Benz and
\nChrysler (the “German Merger Agreement”). In accordance with the German Merger
\nAgreement, the German Stock Corporation Law (Aktiengesetz) and the German
\nTransformation Act (Umwandlungsgesetz) (the “German Stock Corporation Law
\n(Aktiengesetz)” and, together with the German Transformation Act
\n(Umwandlungsgesetz), the “GSCL”), Daimler-Benz shall be merged with and into
\nNewco AG (the “Daimler-Benz Merger”), and Newco AG shall be the surviving
\ncorporation in the Daimler-Benz Merger (the “German Surviving Corporation”). As
\na consequence of the Daimler-Benz Merger, the corporate existence of
\nDaimler-Benz will cease and Newco AG will succeed to all rights, assets,
\nliabilities and obligations of Daimler-Benz in accordance with the GSCL.<\/p>\n
Section 3.2. Daimler-Benz Merger Closing. As soon as possible
\nfollowing the U.S. Share Exchange, the Daimler-Benz Merger shall be effected in
\naccordance with applicable law by registering the merger with the commercial
\nregisters (Handelsregister) for Daimler-Benz and Newco AG, and the parties shall
\nmake all other filings and recordings required under the GSCL. The time<\/p>\n
14
\n 21
\nthe Daimler-Benz Merger becomes effective is hereinafter referred to as the
\n“German Effective Time.”<\/p>\n
Section 3.3. Conversion of Daimler-Benz Ordinary Shares and
\nDaimler-Benz ADSs in the Daimler-Benz Merger. At the German Effective Time, by
\nvirtue of the Daimler-Benz Merger and without any action on the part of the
\nholder of any Daimler-Benz Ordinary Shares, the stockholders of Daimler-Benz
\n(other than Daimler-Benz or Newco AG) shall automatically become stockholders of
\nNewco AG. Each Daimler-Benz Ordinary Share shall embody solely the right to
\nreceive one Newco Ordinary Share in exchange for such Daimler-Benz Ordinary
\nShare, and each Daimler-Benz ADS shall embody solely the right to receive one
\nNewco ADS in exchange for such Daimler-Benz ADS (such exchange ratio being
\nreferred to herein as the “Daimler-Benz Merger Exchange Ratio” and the Newco
\nOrdinary Shares, including those represented by the Newco ADSs, to be issued in
\nthe Daimler-Benz Merger are referred to herein as the “Daimler-Benz Merger
\nConsideration”).<\/p>\n
Section 3.4. Exchange of Daimler-Benz ADSs.<\/p>\n
(a) Exchange Procedures. Newco AG shall instruct the
\ndepositary bank for the Newco ADSs to mail to each former holder of record of
\nDaimler-Benz ADSs entitled to receive the Daimler-Benz Merger Consideration
\npursuant to Section 3.3 a form of letter of transmittal which shall specify that
\nthe delivery shall be effected, and risk of loss and title shall pass, only upon
\nproper delivery of a certificate or certificates formerly representing
\nDaimler-Benz ADSs (“Old Daimler-Benz ADRs”) to the depositary bank and
\ninstructions for use in effecting the surrender to the depositary bank of Old
\nDaimler-Benz ADRs in exchange for Newco ADSs. The letter of transmittal shall
\ncontain such other terms and conditions as Newco AG specifies. Upon surrender of
\nan Old Daimler-Benz ADR to the depositary bank, together with a letter of
\ntransmittal duly executed and completed in accordance with the instructions
\nthereto, and any other documents reasonably required by the depositary bank or
\nNewco AG, (i) the holder of such Old Daimler-Benz ADR shall be entitled to
\nreceive in exchange therefor (x) an ADR registered in the name of such holder
\nrepresenting the number of whole Newco ADSs into which the shares previously
\nrepresented by such Old Daimler-Benz ADR shall have been converted at the German
\nEffective Time and (y) if applicable, a check payable to such holder
\nrepresenting the payment of any dividends and distributions pursuant to Section
\n3.4(b), and (ii) such Old Daimler-Benz ADR shall forthwith be cancelled. If any
\ncash is to be paid to, or any certificate representing Newco ADSs is to be
\nissued in the name of, a person other than the person in whose name the Old
\nDaimler-Benz ADR so surrendered in exchange therefor is registered, it shall be
\na condition of the payment or issuance that the Old Daimler-Benz ADR so
\nsurrendered shall be properly endorsed or otherwise in proper form for transfer
\nand that the person requesting such exchange shall pay any transfer or other
\ntaxes required by reason of the payment of cash to, or the issuance of a
\ncertificate representing Newco ADSs in the name of, a person other than the
\nregistered holder of the Old Daimler-Benz ADR so surrendered or shall establish
\nto the satisfaction of Newco AG that such tax has been paid or is not
\napplicable. Until surrendered in accordance with the provisions of this Section
\n3.4, each Old Daimler-Benz ADR shall, at and after the German Effective Time,
\nrepresent for all purposes only<\/p>\n
15
\n 22
\nthe right to receive Newco ADSs and any dividends and distributions as provided
\nin Section 3.4(b), if any.<\/p>\n
(b) Dividends; Distributions. No dividends or other
\ndistributions declared after the German Effective Time on Newco Ordinary Shares
\nunderlying Newco ADSs and payable to the holders of record thereof after the
\nGerman Effective Time shall be paid to the holder of any unsurrendered Old
\nDaimler-Benz ADR with respect to which the Newco ADSs shall have been issued in
\nthe Daimler-Benz Merger until such Old Daimler-Benz ADRs shall be surrendered as
\nprovided herein, but (i) upon such surrender there shall be paid to the person
\nin whose name the depositary receipt representing such Newco ADSs shall be
\nissued the amount of dividends theretofore paid with respect to such whole Newco
\nADSs as of any date subsequent to the German Effective Time, and (ii) at the
\nappropriate payment date or as soon as practicable thereafter, there shall be
\npaid to such person the amount of dividends with a record date after the German
\nEffective Time but prior to surrender and a payment date subsequent to surrender
\npayable with respect to such whole Newco ADSs, subject to any applicable
\nabandoned property, escheat and similar laws. No interest shall be payable with
\nrespect to the payment of such dividends on surrender of outstanding Old
\nDaimler-Benz ADRs.<\/p>\n
(c) Final Settlement. From and after the German Effective
\nTime, the holders of Old Daimler-Benz ADRs shall cease to have any rights with
\nrespect to the Daimler-Benz ADSs evidenced thereby except as otherwise provided
\nherein or by applicable law. All rights to receive cash, if any, and Newco ADSs
\ninto which Daimler-Benz ADSs shall have been converted pursuant to this Article
\nIII shall be deemed to have been paid or issued, as the case may be, in full
\nsatisfaction of all rights pertaining to such Daimler-Benz ADSs.<\/p>\n
(d) Transfer Books. After the German Effective Time, there
\nshall be no further registration of transfers on the transfer books of the
\nrelevant depositary banks of Daimler-Benz ADSs which were outstanding
\nimmediately prior to the German Effective Time. If, after the German Effective
\nTime, Old Daimler-Benz ADRs are presented to the relevant depositary, they shall
\nbe cancelled and exchanged for cash or depositary receipts representing
\ndepositary shares of Newco AG, or both, in accordance with the procedures set
\nforth in this Article III.<\/p>\n
(e) Termination of Merger Exchange Fund. Any portion of Newco
\nADSs or distributions payable pursuant to Section 3.4(b) that remains
\nundistributed to the holders of the Old Daimler-Benz ADRs one year after the
\nGerman Effective Time shall be delivered to a depositary bank designated by
\nNewco AG, upon demand by Newco AG, whereupon such depositary bank shall hold
\nsuch remaining portion on behalf of holders of unsurrendered Old Daimler-Benz
\nADRs, and any holders of the Old Daimler-Benz ADRs who have not theretofore
\ncomplied with this Section 3.4 shall thereafter look only to Newco AG for
\npayment of their claim for the Daimler-Benz Merger Consideration and any
\ndividends or distributions with respect to Newco ADSs. Such depositary bank
\nshall maintain an office in the City of New York where holders of Old
\nDaimler-Benz ADRs may comply with this Article III.<\/p>\n
16
\n 23
\n Section 3.5. Affiliates Letter. Notwithstanding anything to the
\ncontrary contained herein, for “pooling-of-interests” accounting treatment under
\nAPB No. 16 and applicable SEC rules and regulations, no Newco Ordinary Shares
\nshall be delivered to a person who is an affiliate of Daimler-Benz for purposes
\nof qualifying the transactions contemplated hereby unless such person has
\nexecuted and delivered an agreement in the form of Exhibit B-2 or unless
\nChrysler and Daimler-Benz shall have determined that the transactions
\ncontemplated by this Agreement will not be accounted for as a
\n“pooling-of-interests” under US GAAP because of other circumstances.<\/p>\n
Section 3.6. Treatment of Daimler-Benz Stock Plans. (a) Upon
\neffectiveness of the Daimler-Benz Merger, all outstanding Daimler-Benz Employee
\nStock Options will become stock options of Newco AG in accordance with Section
\n23 of the German Transformation Act (Umwandlungsgesetz) (or such other
\ninstruments as shall meet the requirements of such Section 23 and shall be
\nagreed to by Chrysler and Daimler-Benz), and from and after the date of the
\neffectiveness of the Daimler-Benz Merger shall be convertible into Newco
\nOrdinary Shares (rather than Daimler-Benz Ordinary Shares) in accordance with
\ntheir terms.<\/p>\n
(b) Daimler-Benz agrees to take all actions (including, but
\nnot limited to, adopting all required amendments) with respect to (i) all
\ncompensation and benefit plans and arrangements and (ii) all awards outstanding
\nunder such plans or arrangements, in each case that are required to enable the
\ntransactions contemplated by this Agreement to be accounted for as a
\n“pooling-of-interests” under APB No. 16.<\/p>\n
Section 3.7. Treatment of Daimler-Benz NEWS. Upon effectiveness of
\nthe Daimler-Benz Merger, all Warrants which are convertible into newly issued
\nDaimler-Benz Ordinary Shares will become Warrants of Newco AG in accordance with
\nSection 23 of the German Transformation Act (Umwandlungsgesetz) and, from and
\nafter the date of effectiveness of the Daimler-Benz Merger, will entitle the
\nholder thereof to purchase Newco Ordinary Shares (rather than Daimler-Benz
\nOrdinary Shares) in accordance with their terms. With respect to the Warrants
\nwhich are convertible into outstanding Daimler-Benz Ordinary Shares, Newco AG
\nand Daimler-Benz will take all actions necessary to ensure that such Warrants
\nwill be convertible, as of the effectiveness of the Daimler-Benz Merger, into
\nNewco Ordinary Shares (rather than Daimler-Benz Ordinary Shares) in accordance
\nwith the terms of the Warrants.<\/p>\n
Section 3.8. Treatment of Daimler-Benz Subordinated Mandatory
\nConvertible Notes. Upon the effectiveness of the Daimler-Benz Merger, the 5 3\/4%
\nSubordinated Mandatory Convertible Notes due June 14, 2002 (the “Notes”),
\nincluding Notes represented by American Depositary Notes (“ADNs”) and DM Book
\nEntry Securities (“DM BESs”), issued by Daimler-Benz will become Notes of Newco
\nAG in accordance with Section 23 of the German Transformation Act
\n(Umwandlungsgesetz) and, from and after the date of effectiveness of the
\nDaimler-Benz Merger, will be convertible into Newco Ordinary Shares (rather than
\nDaimler-Benz Ordinary Shares) in accordance with their terms. Newco AG and
\nDaimler-Benz will take all actions necessary to ensure that the ADNs and DM BESs
\nwill be convertible, as of the effectiveness of the Daimler-Benz Merger, into
\nNewco ADSs (rather than Daimler-Benz ADSs) in accordance with their terms.<\/p>\n
17
\n 24
\n Section 3.9. Antidilution Protection for Daimler-Benz Merger
\nExchange Ratio. If, between the date of this Agreement and the German Effective
\nTime, the outstanding Newco Ordinary Shares, Daimler-Benz Ordinary Shares or
\nshares of Chrysler Common Stock shall have been changed into a different number
\nof shares or a different class by reason of any reclassification,
\nrecapitalization, stock split, combination, or exchange of shares or a stock
\ndividend or dividend payable in any other securities shall be declared with a
\nrecord date within such period, or any similar event shall have occurred, the
\nDaimler-Benz Merger Exchange Ratio shall be appropriately adjusted to provide to
\nthe holders of Daimler-Benz Ordinary Shares the same economic effect as
\ncontemplated by this Agreement prior to such event.<\/p>\n
Section 3.10. Treatment of Fractional Shares.<\/p>\n
(a) As promptly as practicable following the Effective Time,
\nthe U.S. Exchange Agent will determine the excess of (i) the aggregate number of
\nNewco ADSs delivered to the U.S. Exchange Agent over (ii) the aggregate number
\nof whole Newco ADSs to be distributed in connection with the Chrysler Merger
\n(such excess being referred to herein as the “Excess Shares”). Following the
\nEffective Time the U.S. Exchange Agent will, on behalf of the former
\nstockholders of Chrysler, sell the Excess Shares at then-prevailing prices on
\nthe New York Stock Exchange (the “NYSE”) in the manner provided in Section
\n3.10(b).<\/p>\n
(b) The sale of the Excess Shares by the U.S. Exchange Agent
\nwill be executed on the NYSE through one or more member firms and will be
\nexecuted in round lots to the extent practicable. The U.S. Exchange Agent will
\nuse reasonable efforts to complete the sale of the Excess Shares as promptly
\nfollowing the Effective Time as, in its sole judgment, is practicable consistent
\nwith obtaining the best execution of such sales in light of prevailing market
\nconditions. Until the net proceeds of such sale or sales have been distributed
\nto the holders of Chrysler Common Stock, the U.S. Exchange Agent will hold such
\nproceeds in trust for such holders (the “Common Shares Trust”). All commissions,
\ntransfer taxes and other out-of-pocket transaction costs, including the expenses
\nand compensation of the U.S. Exchange Agent incurred in connection with such
\nsale of the Excess Shares shall be paid from the Common Shares Trust. The U.S.
\nExchange Agent will determine the portion of the Common Shares Trust to which
\neach holder of Chrysler Common Stock is entitled, if any, by multiplying the
\namount of the aggregate net proceeds comprising the Common Shares Trust by a
\nfraction, the numerator of which is the amount of the fractional share interest
\nto which such holder of Chrysler Common Stock is entitled (after taking into
\naccount all such shares held at the Effective Time by such holder) and the
\ndenominator of which is the aggregate amount of fractional share interests to
\nwhich all holders of Chrysler Common Stock are entitled pursuant to the Chrysler
\nMerger. Each of the former stockholders of Chrysler entitled to cash in lieu of
\nfractional Newco ADSs shall be responsible for all costs related to the sales of
\nExcess Shares pursuant to this Section 3.10(b).<\/p>\n
(c) As soon as practicable after the determination of the
\namount of cash, if any, to be paid to holders of Chrysler Common Stock with
\nrespect to fractional share interests, the U.S. Exchange Agent will make
\navailable such amounts to such holders.<\/p>\n
18
\n 25
\n Section 3.11. Withholding Taxes. Newco AG shall be entitled to
\ndeduct and withhold from the consideration otherwise payable pursuant to this
\nAgreement to any holder of Daimler-Benz Ordinary Shares or the Old Daimler-Benz
\nADRs such amounts as it is required to deduct and withhold with respect to the
\nmaking of such payment under the Code, or any provision of state, local or
\nnon-U.S. tax law. To the extent that amounts are so withheld by Newco AG, such
\nwithheld amounts shall be treated for all purposes of this Agreement as having
\nbeen paid to the holder of Daimler-Benz Ordinary Shares or the Old Daimler-Benz
\nADRs in respect of which such deduction and withholding was made by Newco AG.<\/p>\n
Section 3.12. Singapore Depositary Shares. Singapore Depositary
\nShares representing Daimler-Benz Ordinary Shares shall for all purposes under
\nthis Agreement be treated in the same manner as Daimler-Benz ADSs. Newco AG and
\nDaimler-Benz shall make appropriate arrangements with the depositary bank for
\nthe Singapore Depositary Shares to fully effect this result.<\/p>\n
ARTICLE IV<\/p>\n
NEWCO AG GOVERNANCE AFTER THE EFFECTIVE TIME<\/p>\n
Section 4.1. Newco AG Governance after Effective Time. Daimler-Benz,
\nChrysler and Newco AG agree that after the Effective Time, Newco AG shall have a
\ncorporate governance structure reflecting that the transactions contemplated
\nherein are a merger of equals. Without the intention to interfere with the
\nrights and powers of Newco’s Shareholders meeting, Supervisory Board and the
\nManagement Board (Vorstand) and subject to Sections 95 et seq., Section
\n84 of the German Stock Corporation Law and Sections 6 et seq. of the
\nCo-determination Law of 1976, they will recommend to their respective
\nshareholders and organizational bodies the following:<\/p>\n
(a) Newco AG Articles of Association (Satzung) and Management Board
\n(Vorstand) Rules of Procedure (Geschaftsordnung). The Articles of Association
\n(Satzung) of Newco AG and the Management Board (Vorstand) Rules of Procedure
\n(Geschaftsordnung) of Newco AG, in each case, following the Effective Time,
\nshall be in form and substance reasonably acceptable to Daimler-Benz and
\nChrysler.<\/p>\n
(b) Newco AG Supervisory Board. Until the Newco AG Supervisory Board
\nhas to be composed in accordance with the Co-determination Law of 1976, the
\nNewco AG Supervisory Board shall be composed of twelve members representing the
\nshareholders, six of whom shall have been recommended, immediately prior to the
\nEffective Time, by Daimler-Benz from the then-current non-employee
\nrepresentative members (Anteilseignervertreter) of the Supervisory Board of
\nDaimler-Benz and six of whom shall have been recommended, immediately prior to
\nthe Effective Time, by Chrysler from the then-current outside members of the
\nBoard of Directors of Chrysler. For the period thereafter, the Newco AG
\nSupervisory Board shall consist of twenty members (Section 7 of the
\nCo-determination Law of 1976); five of the members of the restructured Newco AG
\nSupervisory Board shall have been recommended by Daimler-Benz from non-employee<\/p>\n
19
\n 26
\nrepresentative members (Anteilseignervertreter) of the Supervisory Board of
\nDaimler-Benz and five of the members shall have been recommended by Chrysler
\nfrom the outside members of the Board of Directors of Chrysler.<\/p>\n
(c) Chairman of the Supervisory Board (Aufsichtsrat). For a
\nperiod of not less than two years following the Effective Time, the current
\nChairman of Daimler-Benz’s Supervisory Board (Aufsichtsrat) shall continue to be
\nChairman of the Newco AG Supervisory Board.<\/p>\n
(d) Composition of Newco AG Management Board (Vorstand). The
\nManagement Board (Vorstand) of Newco AG shall consist of 18 members. In general,
\n50% of such members shall be those designated by Chrysler, and 50% of such
\nmembers shall be those designated by Daimler-Benz, and there will be two
\nadditional members with responsibility for Daimler-Benz’s non-automotive
\nbusinesses. For three years following the Effective Time, Jurgen E. Schrempp and
\nRobert J. Eaton shall be the Co-CEOs and Co-Chairmen (Vorstandsvorsitzende) of
\nthe Management Board (Vorstand) of Newco AG and members of the Office of the
\nChairmen of Newco AG. If any person designated as a member of the Office of the
\nChairman or the Management Board of Newco AG ceases to be a full-time employee
\nof either Chrysler or Daimler-Benz at or before the Effective Time,
\nDaimler-Benz, in the case of any such employee of Daimler-Benz on the date
\nhereof or any such employee to be designated by Daimler-Benz, or Chrysler, in
\nthe case of any such employee of Chrysler on the date hereof or any such
\nemployee to be designated by Chrysler, shall designate another person to serve
\nin such person’s stead.<\/p>\n
Section 4.2. Integration Committee. The Newco AG Management Board
\n(Vorstand) shall establish an Integration Committee with consultative function
\nwhich shall consist of the Co-Chairmen of the Management Board of Newco AG, who
\nshall also serve as Co-Chairmen of the Integration Committee, and 12 members
\n(including such Co-Chairmen), 50% of which shall be designated by Chrysler and
\n50% of which shall be designated by Daimler-Benz.<\/p>\n
Section 4.3. Operational Headquarters. Following the Effective Time,
\nNewco AG shall maintain two operational headquarters: one located at the current
\nheadquarters of Daimler-Benz, and one located at the current headquarters of
\nChrysler.<\/p>\n
Section 4.4. Language. Following the Effective Time, English shall
\nbe the official language for the management of Newco AG.<\/p>\n
20
\n 27
\n ARTICLE V<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
Except as set forth in the Daimler-Benz Disclosure Schedule or as
\ndisclosed in the Daimler-Benz Pre-Agreement Filings or as otherwise contemplated
\nby this Agreement, Daimler-Benz hereby represents and warrants to Chrysler and
\nexcept as set forth in the Chrysler Disclosure Schedule or as disclosed in the
\nChrysler Pre-Agreement Filings or as otherwise contemplated by this Agreement,
\nChrysler hereby represents and warrants to Daimler-Benz, in each case as set
\nforth in this Article V, with the party making such representations and
\nwarranties being referred to as the “Representing Party.” Notwithstanding the
\nforegoing, any representation or warranty which expressly refers to Daimler-Benz
\nor Chrysler is being made solely by Daimler-Benz or Chrysler, as the case may
\nbe.<\/p>\n
Section 5.1. Corporate Organization. The Representing Party is a
\ncorporation duly incorporated, validly existing and in good standing under the
\nlaws of the jurisdiction of its incorporation and has the corporate power and
\nauthority to own, operate and lease all of its properties and assets and to
\ncarry on its business as it is now being conducted or presently proposed to be
\nconducted, except where the failure to be in good standing would not reasonably
\nbe expected to have a Material Adverse Effect. The Representing Party is duly
\nqualified to do business and is in good standing (to the extent the concepts of
\n“qualification to do business” and “good standing” exist) in all jurisdictions
\nwhere its ownership, operation or leasing of property or assets or the conduct
\nof its business requires it to be so qualified, except in such jurisdictions, if
\nany, where the failure to be so qualified or in good standing would not,
\nindividually or in the aggregate, have a Material Adverse Effect. The
\nRepresenting Party, its Subsidiaries and their respective employees hold all
\npermits, licenses, variances, exemptions, orders, registrations and approvals of
\nall Government Entities which are required for the operation of the businesses
\nof the Representing Party and its Subsidiaries as currently conducted (the
\n“Company Permits”), except where the failure to have any such Company Permits
\nindividually or in the aggregate would not have a Material Adverse Effect.
\nChrysler has made available to Daimler-Benz true and complete copies of its
\nCertificate of Incorporation and By-Laws and Daimler-Benz has made available to
\nChrysler a true and complete copy of its Memorandum and Articles of Association
\n(Satzung), Management Board (Vorstand) Rules of Procedure (Geschaftsordnung) and
\nEnglish translations thereof.<\/p>\n
Section 5.2. Subsidiaries. (a) Each Subsidiary of the Representing
\nParty is a corporation duly organized, validly existing and in good standing
\nunder the laws of its jurisdiction of incorporation, has the corporate power and
\nauthority to own, operate or lease all of its properties and assets and to carry
\non its business as it is now being conducted or presently proposed to be
\nconducted and is duly qualified to do business and is in good standing (to the
\nextent the concepts of “qualification to do business” and “good standing” exist)
\nin each jurisdiction where its ownership, operation, or leasing of property or
\nthe conduct of its business requires such qualification, except in such
\njurisdictions, if any, where the failure to be so organized, existing, in good
\nstanding or qualified would not have a Material Adverse Effect. Each
\nRepresenting Party has made available to the other<\/p>\n
21
\n 28
\nRepresenting Party a copy of the certificate of incorporation, by-laws,
\nMemorandum and Articles of Association (Satzung), Management Board (Vorstand)
\nRules of Procedure (Geschaftsordnung) or other similar documents for each of its
\nSignificant Subsidiaries.<\/p>\n
(b) Each Representing Party is, directly or indirectly, the
\nrecord and beneficial owner of approximately that percentage of the outstanding
\nshares of capital stock of each of its Significant Subsidiaries which is set
\nforth opposite the name of each such Significant Subsidiary in Section 5.2(b) of
\nthe Representing Party’s Disclosure Schedule. There are no outstanding (i)
\nsecurities of the Representing Party or any of its Significant Subsidiaries
\nconvertible into or exchangeable or exercisable for shares of capital stock or
\nother voting securities or ownership interests in any of the Representing
\nParty’s Significant Subsidiaries, (ii) warrants, calls, options or other rights
\nto acquire from the Representing Party or any of its Significant Subsidiaries,
\nor any obligations of the Representing Party or any of its Significant
\nSubsidiaries to issue, any capital stock, voting securities or other ownership
\ninterests in, or any securities convertible into or exchangeable or exercisable
\nfor, any capital stock, voting securities or ownership interests in any of the
\nRepresenting Party’s Significant Subsidiaries, or (iii) obligations of the
\nRepresenting Party or any of its Significant Subsidiaries to repurchase, redeem
\nor otherwise acquire any such outstanding securities of the Representing Party’s
\nSignificant Subsidiaries or to issue, deliver or sell, or cause to be issued,
\ndelivered or sold, any such securities. All of the outstanding shares of capital
\nstock of each of the Representing Party’s Significant Subsidiaries have been
\nvalidly issued and are fully paid, non-assessable and free of preemptive rights,
\nand the shares owned, directly or indirectly, by such Representing Party are
\nowned free and clear of all Encumbrances, except for such Encumbrances which
\nwould not, individually or in the aggregate, have a Material Adverse Effect.<\/p>\n
Section 5.3. Capital Stock. (a) Section 5.3(a) of the Representing
\nParty’s Disclosure Schedule sets forth as of April 30, 1998:<\/p>\n
(i) the number of authorized shares of each class or series
\n of capital stock of the Representing Party;<\/p>\n
(ii) the number of shares of each class or series of capital
\n stock of the Representing Party which are issued and
\n outstanding;<\/p>\n
(iii) the number of shares of each class or series of capital
\n stock which are held in the treasury of such
\n Representing Party;<\/p>\n
(iv) the number of shares of each class or series of capital
\n stock of the Representing Party which are reserved for
\n issuance, indicating each particular reservation; and<\/p>\n
(v) the aggregate number of shares of each class or series
\n of capital stock subject to employee stock options or
\n other rights to purchase or receive capital stock <\/p>\n
22
\n 29
\n granted under such Representing Party’s stock option or
\n other stock based employee or non-employee director
\n benefit plans.<\/p>\n
(b) Promptly following the date hereof, the Representing Party
\nshall furnish a supplement to its Disclosure Schedule setting forth as of a date
\nwithin 30 days preceding the date of this Agreement the number of shares of each
\nclass or series of capital stock of such Representing Party which are subject to
\nemployee stock options or other rights to purchase or receive capital stock
\ngranted under such Representing Party’s stock option or other stock based
\nemployee benefit plans, indicating the name of the plan, identifying the
\nemployee or director by number (not by name), the date of grant and the exercise
\nprice thereof.<\/p>\n
(c) There are no authorized, issued, reserved for issuance or
\noutstanding (i) shares of capital stock or voting securities of the Representing
\nParty, (ii) securities of the Representing Party convertible into or
\nexchangeable for shares of capital stock or voting securities of the
\nRepresenting Party, (iii) warrants, calls, options or other rights to acquire
\nfrom the Representing Party or any of its Subsidiaries, or any obligation of the
\nRepresenting Party or any of its Subsidiaries to issue, any shares of capital
\nstock or voting securities or securities convertible into or exchangeable or
\nexercisable for capital stock or voting securities of the Representing Party,
\nand (iv) there are no outstanding obligations of the Representing Party to
\nrepurchase, redeem or otherwise acquire any such securities or to issue, deliver
\nor sell, or cause to be issued, delivered or sold, any such securities.<\/p>\n
Section 5.4. Authority. The Representing Party has the corporate
\npower and authority to enter into this Agreement and to carry out its
\nobligations hereunder. The execution, delivery and performance of this Agreement
\nby Chrysler and the consummation by Chrysler of the transactions contemplated
\nhereby have been duly authorized by the Board of Directors of Chrysler, and,
\nexcept for the Chrysler Stockholder Approval, no other corporate action on the
\npart of Chrysler is necessary to authorize this Agreement or the transactions
\ncontemplated hereby. The execution, delivery and performance of this Agreement
\nby Daimler-Benz, including the consummation by Daimler-Benz of the transactions
\ncontemplated hereby, have been duly authorized by the Management Board
\n(Vorstand) of Daimler-Benz, and, except for the approval of the Supervisory
\nBoard (Aufsichtsrat) of Daimler-Benz and the Daimler-Benz Stockholder Approval,
\nno other corporate action on the part of Daimler-Benz is necessary to authorize
\nthis Agreement or the transactions contemplated hereby. This Agreement has been
\nduly and validly executed and delivered by the Representing Party and (assuming
\nthis Agreement constitutes a valid and binding obligation of the other
\nRepresenting Party and of Newco AG and assuming the Supervisory Board
\n(Aufsichtsrat) approval referred to in the preceding sentence) is a valid and
\nbinding agreement of the Representing Party, enforceable against such
\nRepresenting Party in accordance with its terms.<\/p>\n
Section 5.5. Consents and Approvals; No Violation. (a) Except where
\nthe failure to make any filing with, or to obtain any permit, authorization,
\nconsent or approval of, any Governmental Entity would not prevent or materially
\ndelay the consummation of the transactions contemplated hereby or otherwise
\nprevent the Representing Party from performing in all material<\/p>\n
23
\n 30
\nrespects its obligations under this Agreement, or would not individually or in
\nthe aggregate have a Material Adverse Effect, no filing with, and no permit,
\nauthorization, consent or approval of, any Governmental Entity is necessary for
\nthe execution, delivery and performance of this Agreement by the Representing
\nParty and the consummation by such Representing Party of the transactions
\ncontemplated hereby.<\/p>\n
(b) Neither the execution, delivery or performance of this
\nAgreement by the Representing Party nor the consummation by such Representing
\nParty of the transactions contemplated hereby, will (i) violate or conflict with
\nany provision of the certificate of incorporation, Memorandum and Articles of
\nAssociation (Satzung), the Management Board (Vorstand) Rules of Procedure
\n(Geschaftsordnung) or by-laws or other similar governing documents of the
\nRepresenting Party or any of its Subsidiaries, (ii) result in a violation or
\nbreach of, or constitute (with or without due notice or lapse of time or both) a
\ndefault (or give rise to any right of termination, cancellation, vesting,
\npayment, exercise, acceleration, suspension or revocation) under any of the
\nprovisions of any note, bond, mortgage, deed of trust, security interest,
\nindenture, license, contract, agreement, plan or other instrument or obligation
\nto which the Representing Party or any of its Subsidiaries is a party or by
\nwhich any of them or any of their properties or assets may be bound, (iii)
\nviolate any order, writ, injunction, decree, judgment, statute, rule or
\nregulation applicable to the Representing Party or its Subsidiaries or any of
\ntheir respective properties or assets, (iv) result in the creation or imposition
\nof any Encumbrance on any asset of the Representing Party or any of its
\nSubsidiaries, or (v) cause the suspension or revocation of any permit, license,
\ngovernmental authorization, consent or approval necessary for the Representing
\nParty or any of its Subsidiaries to conduct its business as currently conducted,
\nexcept in the case of clauses (ii), (iii), (iv) and (v) for violations,
\nbreaches, defaults, terminations, cancellations, accelerations, creations,
\nimpositions, suspensions or revocations which would not or would not be
\nreasonably likely to have, individually or in the aggregate, a Material Adverse
\nEffect or prevent the consummation of the transactions contemplated hereby.<\/p>\n
Section 5.6. Financial Statements; SEC Filings. (a) The consolidated
\nbalance sheets of the Representing Party and its consolidated Subsidiaries as of
\nDecember 31, 1996 and December 31, 1997, and the related consolidated statements
\nof earnings cash flows for each of the two fiscal years ended December 31, 1997
\nand 1996, incorporated by reference in the Annual Reports on Form 10-K in the
\ncase of Chrysler and the Annual Reports on Form 20-F in the case of Daimler-Benz
\nfor the fiscal years ended December 31, 1997 and 1996, respectively, as filed
\nwith the SEC, and the unaudited consolidated balance sheet of Chrysler as of
\nMarch 30, 1997, and the related unaudited consolidated statements of income and
\ncash flows for the three-month period then ended included in the Quarterly
\nReport on Form 10-Q of Chrysler for the quarterly period ended March 30, 1997,
\nas filed with the SEC, copies of all of which have been made available by each
\nRepresenting Party to the other (collectively, the “Representing Party’s
\nFinancial Statements”), complied as to form, as of their respective dates of
\nfiling with the SEC, in all material respects with applicable accounting
\nrequirements and the published rules and regulations of the SEC with respect
\nthereto, have been prepared in accordance with US GAAP applied on a consistent
\nbasis, except as reflected in the Representing Party Financial Statements, and
\npresent fairly the consolidated financial position<\/p>\n
24
\n 31
\nof the Representing Party and its consolidated Subsidiaries at the dates and the
\nconsolidated results of operations of the Representing Party and its
\nSubsidiaries for the periods stated therein subject, in the case of unaudited
\ninterim statements, to normal year-end adjustments. The Representing Party
\nFinancial Statements referred to in this Agreement shall be deemed to include
\nany notes to such financial statements.<\/p>\n
(b) Since January 1, 1996, each Representing Party and its
\nSubsidiaries that is required to make filings under the Securities Act of 1933,
\nas amended (the “Securities Act”), or the Securities Exchange Act of 1934, as
\namended (the “Exchange Act”), has filed with the SEC all forms, reports and
\ndocuments required to be filed by it pursuant to the Securities Act and the
\nExchange Act, all of which, as of their respective filing dates, complied in all
\nmaterial respects with all applicable requirements of the Securities Act and the
\nExchange Act. Each Representing Party has heretofore made available to the other
\na true and complete copy of (i) each final prospectus and definitive proxy
\nstatement filed by it or any of its Subsidiaries with the SEC since January 1,
\n1996, and (ii) each report filed by it or any of its Subsidiaries with the SEC
\nsince January 1, 1996 (the documents referred to in clauses (i) and (ii) being
\nhereinafter referred to as the “Representing Party’s Filings” and such of the
\nRepresenting Party’s Filings as have been filed on or before the date hereof
\nbeing referred to as the “Representing Party’s Pre-Agreement Filings.”). None of
\nthe Representing Party’s Pre-Agreement Filings as of the respective dates on
\nwhich they were filed with the SEC contained any untrue statement of a material
\nfact or omitted to state a material fact required to be stated therein or
\nnecessary in order to make the statements therein, in light of the circumstances
\nunder which they were made, not misleading.<\/p>\n
Section 5.7. Absence of Changes. Except as disclosed in the
\nRepresenting Party’s Pre-Agreement Filings and except as contemplated by this
\nAgreement, since the date of the Representing Party’s latest financial
\nstatements included in such Representing Party’s Pre-Agreement Filings, the
\nRepresenting Party and its Subsidiaries have conducted their respective
\nbusinesses in the ordinary course consistent with past practice and there has
\nnot been:<\/p>\n
(a) any Material Adverse Effect;<\/p>\n
(b) any material change in the method of accounting or
\naccounting practice of the Representing Party and its Subsidiaries, other than
\nchanges required by US GAAP;<\/p>\n
(c) any direct or indirect redemption, purchase or other
\nacquisition of any shares of capital stock of the Representing Party or any
\ndeclaration, setting aside or payment of any dividend or other distribution
\n(whether in cash, stock or property) in respect of such capital stock, other
\nthan regular quarterly cash dividends in the case of Chrysler and regular annual
\ncash dividends in the case of Daimler-Benz;<\/p>\n
(d) (i) any increase in the compensation payable or to become
\npayable by the Representing Party or any of its Subsidiaries to any of their
\nrespective officers or employees, other than increases in the ordinary course of
\nbusiness and substantially consistent with past practice,<\/p>\n
25
\n 32
\nincreases required by union contracts and increases specifically approved in
\nwriting by the other Representing Party or (ii) any increase or modification in
\nany bonus, pension, insurance or other employee benefit, plan, payment or
\narrangement made to, for or with respect to employees not in the ordinary course
\nof business and consistent with past practice or (iii) entry into or amendment
\nof any employment agreement or other employment arrangement with any employee of
\nthe Representing Party or any of its Subsidiaries which employment agreement or
\namendment provides or may provide compensation and benefits in excess of
\n$1,000,000 to any individual in any 12-month period; or<\/p>\n
(e) any issuance of shares of capital stock other than
\npursuant to currently outstanding stock options or other similar stock based
\nemployee benefit awards.<\/p>\n
Section 5.8. Absence of Undisclosed Liabilities. There are no
\nliabilities of the Representing Party or any of its Subsidiaries of any kind
\nwhatsoever, whether or not accrued and whether or not contingent or absolute,
\ndetermined or determinable, that are material to such Representing Party and its
\nSubsidiaries taken as a whole, other than (a) liabilities disclosed or provided
\nfor in such Representing Party’s Financial Statements, (b) liabilities disclosed
\nin the Representing Party’s Filings or disclosed as liabilities on the
\nRepresenting Party’s Disclosure Schedule, (c) liabilities incurred on behalf of
\nthe Representing Party in connection with this Agreement and the transactions
\ncontemplated hereby, (d) liabilities not required to be disclosed under US GAAP,
\nand (e) liabilities incurred in the ordinary course of business consistent with
\npast practice since the date of the Representing Party’s latest financial
\nstatements included in such Representing Party’s Pre-Agreement Filings, none of
\nwhich, either individually or in the aggregate, are reasonably likely to have a
\nMaterial Adverse Effect.<\/p>\n
Section 5.9. Litigation. There are no claims, actions, suits,
\nproceedings or investigations pending or, to the knowledge of the Representing
\nParty, threatened against such Representing Party or any of its Subsidiaries or
\nany of their respective assets before any Governmental Entity which,
\nindividually or in the aggregate, have a reasonable likelihood of resulting in a
\nMaterial Adverse Effect. Neither the Representing Party nor any of its
\nSubsidiaries is subject to any outstanding order, writ, injunction or decree
\nwhich reasonably has had or could be expected to have a Material Adverse Effect.<\/p>\n
Section 5.10. Taxes. (a) The Representing Party and each of its
\nSubsidiaries have timely filed or caused to be filed (or there has been timely
\nfiled on their behalf) or will timely file or cause to be filed all income Tax
\nReturns and all other material Tax Returns required by applicable law to be
\nfiled on or prior to the date hereof, or requests for extensions to file such
\nTax Returns have been filed, granted and have not expired, except to the extent
\nthat such failures to file or to have extensions granted that remain in effect
\nindividually or in the aggregate would not reasonably be expected to have a
\nMaterial Adverse Effect. All such Tax Returns are complete and accurate in all
\nmaterial respects, except to the extent that such failures to be complete or
\naccurate individually or in the aggregate would not reasonably be expected to
\nhave a Material Adverse Effect. The Representing Party and each of its
\nSubsidiaries have paid (or there has been paid on their behalf) all<\/p>\n
26
\n 33
\nTaxes shown as due on such Tax Returns, and the most recent Representing Party’s
\nFinancial Statements contained in the Representing Party’s Filings reflect an
\nadequate reserve in accordance with US GAAP for all Taxes payable by the
\nRepresenting Party and its Subsidiaries for all taxable periods and portions
\nthereof accrued through the date of such financial statements, except for
\ninadequately reserved Taxes that individually or in the aggregate would not
\nreasonably be expected to have a Material Adverse Effect. No deficiencies for
\nany Tax have been proposed in writing, asserted or assessed, in each case by any
\ntaxing authority, against the Representing Party or any of its Subsidiaries for
\nwhich there are not adequate reserves, except for deficiencies that individually
\nor in the aggregate would not reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n
(b) Except as contemplated by Sections 2.6, 3.6 and 8.2 of
\nthis Agreement, any amount or other entitlement that could be received (whether
\nin cash or property or the vesting of property) as a result of any of the
\ntransactions contemplated by this Agreement by any employee, officer or director
\nof Chrysler or any of its affiliates who is a “disqualified individual” (as such
\nterm is defined in proposed Treasury Regulation Section 1.280G-1) under any
\nemployee benefit plan or other compensation arrangement currently in effect
\nwould not be characterized as an “excess parachute payment” or a “parachute
\npayment” (as such terms are defined in Section 280G(b)(1) of the Code).<\/p>\n
Section 5.11. Employee Benefit Plans. (a) As soon as practicable
\n(but in any event within 30 business days) following the date hereof, each
\nRepresenting Party shall provide the other with a true and complete list of each
\nmaterial deferred compensation, incentive compensation, stock purchase, stock
\noption and other equity compensation plan, program, agreement or arrangement;
\neach material severance or termination pay, medical, surgical, hospitalization,
\nlife insurance and other “welfare” plan, fund or program (within the meaning of
\nSection 3(1) of ERISA); each material profit-sharing, stock bonus or other
\n“pension” plan, fund or program (within the meaning of Section 3(2) of ERISA);
\neach material employment, termination or severance agreement; and each other
\nmaterial employee benefit plan, fund, program, agreement or arrangement, in each
\ncase that is sponsored, maintained or contributed to or required to be
\ncontributed to by the Representing Party or by any trade or business, whether or
\nnot incorporated (an “ERISA Affiliate”), that together with the Representing
\nParty would be deemed a “single employer” within the meaning of Section 4001(b)
\nof ERISA, or to which the Representing Party or an ERISA Affiliate is a party,
\nwhether written or oral, for the benefit of any employee or former employee of
\nthe Representing Party or any of the Representing Party’s Subsidiaries and
\nwhether or not subject to ERISA (with respect to a Representing Party, the
\n“Plans”).<\/p>\n
(b) Each Plan has been administered and operated in compliance
\nwith its terms and applicable law in all material respects, including, without
\nlimitation, in accordance with the Code and ERISA and the comparable provisions
\nof any foreign law.<\/p>\n
(c) There are no liabilities of the Representing Party or any
\nERISA Affiliate with respect to any Plan, other than (i) liabilities disclosed
\nor provided for in such<\/p>\n
27
\n 34
\nRepresenting Party’s Financial Statements and (ii) liabilities none of which,
\neither individually or in the aggregate, are reasonably likely to have a
\nMaterial Adverse Effect.<\/p>\n
Section 5.12. Labor and Employment Matters. (a) Except as
\ncontemplated by Sections 2.6, 3.6 and 8.2 of this Agreement and except for
\nemployment agreements and other arrangements which do not require the payment of
\nmore than $200,000 per person, as soon as practicable (but in any event within
\n30 business days) following the date hereof, each Representing Party shall
\nprovide the other with a true and complete list of each employment agreement or
\nany other arrangement or understanding with any employee that provides for the
\npayment of any consideration (including severance pay) by such Representing
\nParty or any of its Subsidiaries to such person as a result of the consummation
\nof any of the transactions contemplated by this Agreement, either alone or in
\nconjunction with the termination of such person’s employment.<\/p>\n
(b) (i) Except as disclosed by a Representing Party in writing
\nas soon as practicable (but in any event within 30 business days) following the
\ndate hereof, neither the Representing Party nor any of its Subsidiaries is a
\nparty to, or bound by, any material collective bargaining agreement or other
\nmaterial contract, agreement, arrangement or understanding with a labor union or
\nlabor organization; (ii) except as would not, individually or in the aggregate,
\nreasonably be expected to have a Material Adverse Effect, there is no (1) unfair
\nlabor practice, labor dispute (other than routine individual grievances) or
\nlabor arbitration proceeding pending or, to the knowledge of the Representing
\nParty, threatened against the Representing Party or its Subsidiaries; (2)
\nactivity or proceeding by a labor union or representative thereof to organize
\nany employees of the Representing Party or any of its Subsidiaries; or (3)
\nlockout, strike, slowdown, work stoppage or threat thereof by or with respect to
\nsuch employees; and (iii) since December 31, 1997, there has not been any
\nadoption or amendment in any material respect by the Representing Party or any
\nof its Subsidiaries of any material collective bargaining agreement or other
\ncontract, agreement, arrangement or understanding with a labor union or labor
\norganization. Each of the Representing Party and its Subsidiaries is in
\ncompliance with all laws regarding employment, employment practices, terms and
\nconditions of employment and wages, except for such noncompliance that
\nindividually or in the aggregate would not reasonably be expected to have a
\nMaterial Adverse Effect.<\/p>\n
Section 5.13. Information Provided By Representing Party. None
\nof the information provided or to be provided by the Representing Party
\nspecifically for inclusion or incorporation by reference in (a) the F-4
\nRegistration Statement will at the date the F-4 Registration Statement is
\ndeclared effective by the SEC contain any untrue statement of a material fact or
\nomit to state a material fact required to be stated therein or necessary in
\norder to make the statements therein, in light of the circumstances under which
\nthey are made, not misleading, (b) the Proxy Statement\/Prospectus will, at the
\ndate the Proxy Statement\/Prospectus is first mailed to the Representing Party’s
\nstockholders, contain any untrue statement of a material fact or omit to state a
\nmaterial fact required to be stated therein or necessary in order to make the
\nstatements therein, in light of the circumstances under which they are made, not
\nmisleading, (c) the Exchange Offer Documents will, at the time of commencement
\nof the Daimler-Benz Exchange Offer or at the time of the expiration date of the
\nDaimler-Benz Exchange Offer, contain any untrue statement of a <\/p>\n
28
\n 35
\nmaterial fact or omit to state a material fact required to be stated therein or
\nnecessary in order to make the statements therein, in light of the circumstances
\nunder which they are made, not misleading, or (d) the merger report to be
\nprepared pursuant to Section 8 of the German Transformation Act
\n(Umwandlungsgesetz) in connection with the Daimler-Benz Merger will, at the time
\nthe merger report is made available to the stockholders of Daimler-Benz in
\nconnection with the Daimler-Benz Stockholders Meeting, contain any untrue
\nstatement of a material fact or omit to state a material fact required to be
\nstated therein or necessary in order to make the statements therein, in light of
\nthe circumstances under which they were made, not misleading. Notwithstanding
\nthe foregoing, no representation or warranty is made by a Representing Party
\nwith respect to any statements made in the F-4 Registration Statement, the Proxy
\nStatement\/Prospectus or the Exchange Offer Documents based on information
\nprovided by or on behalf of the other Representing Party for inclusion or
\nincorporation by reference in such documents or with respect to information
\nincorporated by reference in such documents from any of the other Representing
\nParty’s Filings. Daimler-Benz represents and warrants to Chrysler that the F-4
\nRegistration Statement and the Exchange Offer Documents will comply as to form
\nwith all applicable provisions of law. Chrysler represents and warrants to
\nDaimler-Benz that the Proxy Statement\/Prospectus will comply as to form with all
\napplicable provisions of law.<\/p>\n
Section 5.14. Ownership of Capital Stock. To the knowledge of the
\nRepresenting Party, neither the Representing Party nor any of its affiliates
\nbeneficially owns, directly or indirectly, any capital stock of the other
\nRepresenting Party or is a party to any agreement, arrangement or understanding
\nfor the purpose of acquiring, holding, voting or disposing of any capital stock
\nof the other Representing Party.<\/p>\n
Section 5.15. Voting Requirements. (a) Chrysler represents and
\nwarrants to Daimler-Benz that the affirmative vote at the Chrysler Stockholders
\nMeeting, which shall become effective upon consummation of the Daimler-Benz
\nExchange Offer (the “Chrysler Stockholder Approval”), of the holders of a
\nmajority of all outstanding shares of Chrysler Common Stock is the only vote of
\nholders of any class or series of Chrysler capital stock necessary to approve
\nand adopt this Agreement and the transactions contemplated hereby, including the
\nChrysler Merger.<\/p>\n
(b) Daimler-Benz represents and warrants to Chrysler that the
\naffirmative votes at the Daimler-Benz Stockholders Meeting (the “Daimler-Benz
\nStockholder Approval”) of the holders of 75% of the Daimler-Benz Ordinary Shares
\nrepresented at the Daimler-Benz Stockholders Meeting to approve and adopt (i)
\nthis Agreement and the transactions contemplated hereby, including the
\nDaimler-Benz Exchange Offer, and (ii) the Daimler-Benz Merger are the only votes
\nof the holders of any class or series of Daimler-Benz capital stock necessary
\nfor the consummation of the transactions contemplated by this Agreement.<\/p>\n
Section 5.16. Accounting Matters. To its knowledge neither the
\nRepresenting Party nor any of its affiliates (as such term is used in Section
\n9.10) has taken or agreed to take any action that would prevent the transactions
\ncontemplated by this Agreement from being accounted for as a<\/p>\n
29
\n 36
\n“pooling-of-interests” under APB No. 16 and the Representing Party has no reason
\nto believe that such transactions will not qualify for “pooling-of-interests”
\naccounting treatment under APB No. 16.<\/p>\n
Section 5.17. Opinion of Financial Advisors. Chrysler represents and
\nwarrants to Daimler-Benz that Chrysler has received the opinion of CSFB, dated
\nthe date of this Agreement, to the effect that, as of such date, the U.S.
\nExchange Ratio is fair from a financial point of view to the holders of shares
\nof Chrysler Common Stock (other than Daimler-Benz and its affiliates).
\nDaimler-Benz represents and warrants to Chrysler that Daimler-Benz has received
\nthe opinion of Goldman Sachs, dated the date of this Agreement, to the effect
\nthat, as of such date, the Daimler-Benz Exchange Ratio pursuant to the Agreement
\nis fair from a financial point of view to the holders of Daimler-Benz Ordinary
\nShares. For purposes of the opinion as expressed in this Agreement, the term
\n“Daimler-Benz Exchange Ratio” means the Daimler-Benz Exchange Offer Ratio and
\nthe Daimler-Benz Merger Exchange Ratio, collectively, after taking into account
\nthe Chrysler Merger.<\/p>\n
Section 5.18. Finders and Advisors. Except for Goldman Sachs and
\nDeutsche Bank AG, whose fees shall be the sole responsibility of Daimler-Benz,
\nand CSFB, whose fees shall be the sole responsibility of Chrysler, no financial
\nadvisor, broker, agent or finder has been retained by either Representing Party
\nin connection with this Agreement or any transaction contemplated hereby, and no
\nsuch financial advisor, broker, agent or finder is entitled to any fee or other
\ncompensation on account of this Agreement or any transaction contemplated
\nhereby.<\/p>\n
Section 5.19. State Takeover Statutes; Stockholder Rights Plan. (a)
\nChrysler represents and warrants to Daimler-Benz that its Board of Directors has
\ntaken all action necessary to ensure that Section 203 of the DGCL does not apply
\nto this Agreement and the transactions contemplated hereby.<\/p>\n
(b) Chrysler represents and warrants to Daimler-Benz that its
\nBoard of Directors has amended the Rights Agreement, dated as of February 5,
\n1998, between Chrysler and First Chicago Trust Company of New York (the
\n“Chrysler Rights Agreement”) to render it inapplicable to the transactions
\ncontemplated by this Agreement.<\/p>\n
ARTICLE VI<\/p>\n
NEWCO AG REPRESENTATIONS AND WARRANTIES<\/p>\n
Newco AG represents and warrants to Chrysler as follows:<\/p>\n
Section 6.1. Corporate Organization. Newco AG is an
\nAktiengesellschaft duly incorporated and validly existing under the laws of the
\nFederal Republic of Germany and has the corporate power and authority to own,
\noperate and lease all of its properties and assets and to carry on its business
\nas it is now being conducted or presently proposed to be conducted.<\/p>\n
30
\n 37
\n Section 6.2. Capital Stock. As of the date hereof, (a) 20,000 Newco
\nOrdinary Shares were issued and outstanding and owned by Sal. Oppenheim jr. & Cie.; and (b) no other shares of capital stock were issued or outstanding.
\nExcept as set forth in this Section 6.2, (1) there are not issued, reserved for
\nissuance or outstanding (i) any shares of capital stock or other voting
\nsecurities of Newco AG, (ii) any securities of Newco AG convertible into or
\nexchangeable or exercisable for shares of capital stock or voting securities of
\nNewco AG, or (iii) any warrants, calls, options or other rights to acquire from
\nNewco AG, or any obligation of Newco AG to issue, any capital stock, voting
\nsecurities or securities convertible into or exchangeable for or exercisable for
\ncapital stock or voting securities of Newco AG, and (2) there are no outstanding
\nobligations of Newco AG to repurchase, redeem or otherwise acquire any such
\nsecurities or to issue, deliver or sell, or cause to be issued, delivered or
\nsold, any such securities.<\/p>\n
Section 6.3. Authority. Newco AG has the corporate power and
\nauthority to enter into this Agreement and to carry out its obligations
\nhereunder. The execution and delivery and, subject to completion of the actions
\nto be performed pursuant to Section 9.16, the performance of this Agreement by
\nNewco AG and the consummation by Newco AG of the transactions contemplated
\nhereby have been duly authorized by the general meeting of stockholders
\n(Hauptversammlung) of Newco AG, by the Supervisory Board (Aufsichtsrat) of Newco
\nAG and by the Management Board (Vorstand) of Newco AG, and no other corporate
\naction on the part of Newco AG is necessary to authorize this Agreement or the
\ntransactions contemplated hereby. This Agreement has been duly and validly
\nexecuted and delivered by Newco AG and (assuming this Agreement constitutes a
\nvalid and binding obligation of Daimler-Benz and Chrysler and, upon the actions
\nrequired by Section 9.16 being taken) is a valid and binding agreement of Newco
\nAG, enforceable against Newco AG in accordance with its terms. Newco AG has made
\navailable to Daimler-Benz and Chrysler true and complete copies of its
\nMemorandum and Articles of Association (Satzung) and an English translation
\nthereof.<\/p>\n
Section 6.4. Consents and Approvals; No Violation. (a) Except where
\nthe failure to make any filing with, or to obtain any permit, authorization,
\nconsent or approval of, any Governmental Entity would not prevent or delay the
\nconsummation of the transactions contemplated hereby or otherwise prevent Newco
\nAG from performing its obligations under this Agreement, no filing with, and no
\npermit, authorization, consent or approval of, any Governmental Entity is
\nnecessary for the execution, delivery and performance of this Agreement by Newco
\nAG and the consummation by Newco AG of the transactions contemplated hereby.<\/p>\n
(b) Neither the execution, delivery or performance of this
\nAgreement by Newco AG nor the consummation by Newco AG of the transactions
\ncontemplated hereby, will (i) violate or conflict with any provision of the
\nMemorandum and Articles of Association (Satzung) of Newco AG, (ii) result in a
\nviolation or breach of, or constitute (with or without due notice or lapse of
\ntime or both) a default (or give rise to any right of termination, cancellation,
\nvesting, payment, exercise, acceleration, suspension or revocation) under any of
\nthe provisions of any note, bond, mortgage, deed of trust, security interest,
\nindenture, license, contract, agreement, plan or other instrument or obligation
\nto which Newco AG is a party or by which it or any of its properties or<\/p>\n
31
\n 38
\nassets may be bound, (iii) violate any order, writ, injunction, decree,
\njudgment, statute, rule or regulation applicable to Newco AG or any of its
\nrespective properties or assets, (iv) result in the creation or imposition of
\nany Encumbrance on any asset of Newco AG, or (v) cause the suspension or
\nrevocation of any permit, license, governmental authorization, consent or
\napproval necessary for Newco AG to conduct its business as currently conducted.<\/p>\n
Section 6.5. Information Provided By Newco AG. None of the
\ninformation provided or to be provided by Newco AG specifically for inclusion or
\nincorporation by reference in (a) the F-4 Registration Statement will, at the
\ndate the F-4 Registration Statement is declared effective by the SEC, contain
\nany untrue statement of a material fact or omit to state a material fact
\nrequired to be stated therein or necessary in order to make the statements
\ntherein, in light of the circumstances under which they are made, not
\nmisleading, (b) the Proxy Statement\/Prospectus will, at the date the Proxy
\nStatement\/Prospectus is first mailed to the Chrysler stockholders, contain any
\nuntrue statement of a material fact or omit to state a material fact required to
\nbe stated therein or necessary in order to make the statements therein, in light
\nof the circumstances under which they are made, not misleading, (c) the report
\nto be prepared pursuant to Section 183(3) of the German Stock Corporation Law
\n(Aktiengesetz) in connection with the U.S. Share Exchange will, at the time of
\ndelivery of the report to the commercial register, and the report to be prepared
\npursuant to Section 52(3) of the German Stock Corporation Law (Aktiengesetz) in
\nconnection with the U.S. Share Exchange will, at the time of its presentation to
\nthe general meeting of stockholders of Newco AG, contain any untrue statement of
\na material fact or omit to state a 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, or (d) the Exchange
\nOffer Documents will, at the time of commencement of the Daimler-Benz Exchange
\nOffer or on the Daimler-Benz Exchange Offer Expiration Date, the report to be
\nprepared pursuant to Section 183(3) of the German Stock Corporation Law
\n(Aktiengesetz) in connection with the German Share Exchange will, at the time of
\ndelivery of the report to the commercial register, and the report to be prepared
\npursuant to Section 52(3) of the German Stock Corporation Law (Aktiengesetz) in
\nconnection with the German Share Exchange will, at the time of its presentation
\nto the general meeting of stockholders (Hauptversammlung) of Newco AG and at the
\ntime of its filing with the commercial register (Handelsregister), contain any
\nuntrue statement of a material fact or omit to state a material fact required to
\nbe stated therein or necessary in order to make the statements therein, in light
\nof the circumstances under which they are made, not misleading. Notwithstanding
\nthe foregoing, no representation or warranty is made by Newco AG with respect to
\nany statements made in the F-4 Registration Statement, the Proxy
\nStatement\/Prospectus or the Exchange Offer Documents based on information
\nprovided by or on behalf of Chrysler for inclusion or incorporation by reference
\nin such documents or with respect to information incorporated by reference in
\nsuch documents from any of the Representing Party’s Filings. The F-4
\nRegistration Statement and the Exchange Offer Documents will comply as to form
\nwith all applicable provisions of law.<\/p>\n
Section 6.6. Ownership of Capital Stock. To the knowledge of Newco
\nAG, neither Newco AG nor any of its affiliates beneficially owns, directly or
\nindirectly, any capital stock of Daimler-Benz or Chrysler or is a party to any
\nagreement, arrangement or understanding for the<\/p>\n
32
\n 39
\npurpose of acquiring, holding, voting or disposing of any capital stock of
\nDaimler-Benz or Chrysler, other than as contemplated by this Agreement.<\/p>\n
Section 6.7. Accounting Matters. To its knowledge neither Newco AG
\nnor any of its affiliates (as such term is used in Section 9.10) has taken or
\nagreed to take any action that would prevent the transactions contemplated by
\nthis Agreement from being accounted for as a “pooling-of-interests” under APB
\nNo. 16, and Newco AG has no reason to believe that such transactions will not
\nqualify for “pooling-of-interests” accounting treatment under APB No. 16.<\/p>\n
Section 6.8. No Prior Activities. Newco AG was formed solely for the
\npurpose of engaging in the transactions contemplated by this Agreement, has no
\nSubsidiaries and has undertaken no business or activities other than in
\nconnection with entering into this Agreement and engaging in the transactions
\ncontemplated hereby.<\/p>\n
ARTICLE VII<\/p>\n
CONDUCT OF BUSINESS PENDING THE EFFECTIVE TIME<\/p>\n
From the date of this Agreement until the Effective Time, unless the
\nother parties shall agree in writing or except as otherwise contemplated by this
\nAgreement or Section 7 of the Representing Party’s Disclosure Schedule, each of
\nthe parties hereto shall, and shall cause their respective Subsidiaries to,
\nconduct their respective businesses in the ordinary course substantially
\nconsistent with past practices and shall use all reasonable efforts to preserve
\nintact their business organizations and relationships with third parties
\n(including but not limited to their respective relationships with customers,
\nsuppliers, employees and business partners) and to keep available the services
\nof their present officers and key employees. Without limiting the generality of
\nthe foregoing, except as otherwise contemplated by this Agreement or except as
\ncontemplated by the agenda published for the annual general meeting of
\nDaimler-Benz, a copy of which has been previously provided by Daimler-Benz, from
\nthe date of this Agreement until the Effective Time, without the prior written
\nconsent of Chrysler, in the case of any action proposed to be taken by
\nDaimler-Benz or any Subsidiary of Daimler-Benz, or by Daimler-Benz, in the case
\nof any action proposed to be taken by Chrysler or any Subsidiary of Chrysler, or
\nby Chrysler and Daimler-Benz, in the case of any action proposed to be taken by
\nNewco AG (which consent will not be unreasonably withheld or delayed by any
\nparty from whom it is requested):<\/p>\n
(a) none of the parties shall, and each shall cause its
\nrespective Significant Subsidiaries not to, adopt or propose any amendment to
\nits certificate of incorporation, bylaws, Memorandum and Articles of Association
\n(Satzung) or other similar governing documents;<\/p>\n
(b) none of the parties shall, and each shall cause its
\nrespective Subsidiaries not to (i) declare, set aside or pay any dividend or
\nother distribution with respect to any<\/p>\n
33
\n 40
\nshares of its capital stock, except in the case of Chrysler for regular
\nquarterly cash dividends on the outstanding shares of Chrysler Common Stock and
\nin the case of Daimler-Benz for the regular annual cash dividend on the
\noutstanding Daimler-Benz Ordinary Shares of DM 1.60 per Ordinary Share, the
\nSpecial Distribution and the Rights Offering and except for cash dividends or
\ndistributions by a Subsidiary to its parent, (ii) split, combine or reclassify
\nany of its shares of capital stock, or (iii) issue or authorize the issuance of
\nany other securities in respect of, in lieu of or in substitution for shares of
\nsuch party’s or such party’s Subsidiary’s capital stock, except for (1) the
\nissuance of shares of Chrysler Common Stock by Chrysler and Daimler-Benz
\nOrdinary Shares by Daimler-Benz upon conversion of such party’s convertible
\nsecurities or upon the exercise of stock options or other rights to acquire such
\nparty’s capital stock, in each case which securities, options and rights are
\noutstanding as of the date hereof and such issuance is made in accordance with
\nthe terms of such securities, options and rights in effect on the date of this
\nAgreement; (2) the grant of not more than 100,000 options to purchase shares of
\nChrysler Common Stock in the ordinary course of business; (3) the issuance of
\nDaimler-Benz Ordinary Shares and Daimler-Benz ADSs in connection with the Rights
\nOffering; (4) the issuance of not more than 2 million Daimler-Benz Ordinary
\nShares pursuant to Daimler-Benz’s Employee Share Purchase Program and (5) the
\nissuance by Daimler-Benz of up to a maximum of 10,000,000 Daimler-Benz Ordinary
\nShares pursuant to The Stock Option Plan of the Daimler-Benz Group (1998);<\/p>\n
(c) none of the parties shall, and each shall cause its
\nrespective Subsidiaries not to, repurchase, redeem or otherwise acquire any
\nshares of capital stock or other equity or equity equivalent securities of, or
\nother ownership interests in, such party or such Subsidiary, except that
\nChrysler may redeem the Chrysler Preferred Stock in accordance with Section 2.7;<\/p>\n
(d) none of the parties shall, and none of the parties shall
\npermit any of its Subsidiaries to, issue, deliver, sell, pledge or otherwise
\nencumber or subject to any Encumbrance any shares of its capital stock, any of
\nits other voting securities or any of its securities convertible into, or any
\nrights, warrants or options to acquire, any such shares, voting securities or
\nconvertible securities, except as expressly provided in clause (iii) of
\nparagraph (b) above and except for the issuance by Chrysler of Chrysler Common
\nStock in connection with the Chrysler Stock Issuance as provided in Section 9.3;<\/p>\n
(e) none of the parties shall, and none of the parties shall
\npermit any of its Subsidiaries to, merge or consolidate with any other person or
\nacquire a material amount of assets of or make a material investment in or
\notherwise engage in any similar extraordinary business transaction with any
\nother person, except for transactions in the automotive or automotive finance
\nbusinesses in which the party or its Subsidiaries are currently engaged;<\/p>\n
(f) none of the parties shall, and none of the parties shall
\npermit any of its Subsidiaries to, sell, lease, license or otherwise surrender,
\nrelinquish or dispose of (i) any facility owned or leased by such party or its
\nSubsidiary and material to such party and its Subsidiaries taken as a whole or
\n(ii) any assets or property which are material to such party and its
\nSubsidiaries taken<\/p>\n
34
\n 41
\nas a whole, except pursuant to existing contracts or commitments (the terms of
\nwhich have been disclosed to the other party hereto prior to the date hereof);<\/p>\n
(g) none of the parties shall, and none of the parties shall
\npermit any Subsidiary to, incur any indebtedness for borrowed money or issue any
\ndebt securities or assume, guarantee or endorse, or otherwise as an
\naccommodation become responsible for the obligations of any person for borrowed
\nmoney, except for indebtedness which will not cause an adverse change in the
\nratings of the party’s or its Subsidiaries’ rated debt securities by Standard & Poor’s Ratings Services and by Moody’s Investor Service, Inc. from those in
\neffect as of the date hereof;<\/p>\n
(h) none of the parties shall, and none of the parties shall
\npermit any of its Subsidiaries to, take any action that would reasonably be
\nexpected to cause (1) the Chrysler Exchange, to (a) fail to qualify as a
\nreorganization within the meaning of Section 368(a) of the Code or (b) when
\nintegrated with the Daimler-Benz Exchange Offer and taking into account the
\nDaimler-Benz Merger, fail to be treated as a transaction described in Section
\n351(a) of the Code; (2) the Daimler-Benz Exchange Offer to (a) when integrated
\nwith the Chrysler Exchange, fail to be treated as a transaction described in
\nSection 351(a) of the Code or (b) if integrated with the Daimler-Benz Merger,
\nfail to qualify as a reorganization within the meaning of Section 368(a) of the
\nCode; or (3) the Daimler-Benz Exchange Offer or the Daimler-Benz Merger to
\nresult in the recognition of any gain or loss by Newco AG, Daimler-Benz or
\nstockholders of Daimler-Benz under German law;<\/p>\n
(i) none of the parties shall, and none of the parties shall
\npermit any of its Significant Subsidiaries to, take any actions which would, or
\nwould be reasonably likely to, prevent accounting for the transactions
\ncontemplated by this Agreement in accordance with the “pooling of interests”
\nmethod of accounting under the requirements of APB No. 16;<\/p>\n
(j) none of the parties shall, and none of the parties shall
\npermit any of its Significant Subsidiaries to, take any action that would cause
\nany of the representations and warranties set forth in Article V to be untrue or
\nincorrect in any material respect; and<\/p>\n
(k) none of the parties shall, and none of the parties shall
\npermit any of its Significant Subsidiaries to, authorize, agree or commit to do
\nany of the foregoing.<\/p>\n
ARTICLE VIII<\/p>\n
EMPLOYEE BENEFIT MATTERS<\/p>\n
Section 8.1. Newco AG Retention\/Personnel Policy. In general, and
\nsubject to the specific provisions of this Article VIII, Daimler-Benz, Chrysler
\nand Newco AG have agreed that, consistent with the practices of Daimler-Benz and
\nChrysler, Newco AG will seek to attract and retain superior quality executive,
\nmanagerial, technical and administrative personnel in every market in which it
\nconducts activities and will generally implement compensation and benefit plans
\nand<\/p>\n
35
\n 42
\npolicies necessary to achieve this objective. It is the specific intention
\nthat Newco AG’s compensation and benefit programs (including stock options) will
\nbe competitive with those provided generally in the U.S. domestic automotive and
\nautomotive finance industry and the German automotive and automotive finance
\nindustry, respectively, both with respect to the type and variety of programs as
\nwell as the level of benefits afforded.<\/p>\n
Section 8.2. Benefits. (a) For at least two years following the
\nEffective Time (such period, the “Initial Period”), Newco AG shall provide or
\ncause to be provided to current and former employees and directors of Chrysler
\nand its Subsidiaries and Daimler-Benz and its Subsidiaries compensation and
\nbenefits that are at least as favorable in the aggregate as the compensation and
\nbenefits they were entitled to receive immediately prior to the Effective Time
\n(including, without limitation, benefits pursuant to pension plans, savings
\nplans, medical plans and programs, lay-off policies, deferred compensation
\narrangements and retiree benefit plans, policies and arrangements); provided
\nthat, with respect to employees who are subject to collective bargaining, all
\nbenefits shall be provided in accordance with the applicable collective
\nbargaining or other labor agreements. Newco AG shall honor, and shall cause its
\nSubsidiaries to honor, pursuant to their terms all employee benefit obligations
\nto current and former employees and directors of Chrysler and Daimler-Benz.<\/p>\n
(b) From and after the Effective Time, Newco AG shall, and
\nshall cause its Subsidiaries to, recognize service with Chrysler and Chrysler’s
\nSubsidiaries and Daimler-Benz and Daimler-Benz’s Subsidiaries prior to the
\nEffective Time for all purposes (including, without limitation, eligibility to
\nparticipate, vesting, benefit accrual, eligibility to commence benefits
\n(including, without limitation, subsidized early retirement benefits) and
\nseverance) under any benefit plans of Newco AG or its Subsidiaries in which the
\nparticular employee or former employee of Chrysler or Daimler-Benz (or their
\nrespective Subsidiaries) participates; provided, however, that the foregoing
\nshall not result in any duplication of benefits. From and after the Effective
\nTime, Newco AG shall, and shall cause its Subsidiaries to, recognize any and all
\nout-of-pocket expenses of each employee or former employee of Chrysler and
\nChrysler’s Subsidiaries and Daimler-Benz and Daimler-Benz’s Subsidiaries for
\npurposes of determining such employee’s, former employee’s, beneficiary’s and
\ndependent’s deductible and copayment expenses.<\/p>\n
(c) Without limiting the generality of the foregoing, for at
\nleast two years following the Effective Time, Newco AG shall provide or cause to
\nbe provided to retirees and employees of Chrysler and its Subsidiaries and
\nDaimler-Benz and its Subsidiaries who, as of the Effective Time, have satisfied
\nthe age and service requirements, or are within five years of satisfying the age
\nand service requirements, for eligibility to receive retiree medical and life
\ninsurance benefits under the benefit plans, policies and arrangements of
\nChrysler and its Subsidiaries or Daimler-Benz and its Subsidiaries, as the case
\nmay be (the “Eligible Retirees”), retiree medical and life insurance benefits
\nthat are at least as favorable as the retiree medical and life insurance
\nbenefits provided under such plans, policies and arrangements immediately prior
\nto the Effective Time. Newco AG shall not, and shall cause its Subsidiaries not
\nto, amend, modify or terminate any retiree medical and life insurance benefits
\nprovided to Eligible Retirees during any two-year period after the initial
\ntwo-year<\/p>\n
36
\n 43
\nperiod in a manner that would increase the cost of such benefits to retirees,
\ntheir dependents and beneficiaries by more than 20% during any such two-year
\nperiod.<\/p>\n
Section 8.3. Employment Agreements. (a) Except as otherwise
\nexpressly provided in this Agreement, from and after the Effective Time, Newco
\nAG shall honor, and shall cause its Subsidiaries to honor, in accordance with
\nits terms, each existing employment, severance and termination agreement between
\nDaimler-Benz or Chrysler or any of their respective Subsidiaries, and any
\nofficer, director or employee of any such company, so long as such agreement
\nshall have been identified to the other party in accordance with Section 5.11(a)
\nor 5.12 of this Agreement, if required to be so identified, and to the extent
\nsuch terms are in effect on the date hereof. To the extent that any such
\nemployment, severance or termination agreement can be unilaterally amended by
\nthe Representing Party, Newco AG agrees not to amend, and to cause its
\nSubsidiaries not to amend, any such plan or agreement prior to the second
\nanniversary of the Effective Time in a manner that will reduce or otherwise
\nimpair the benefits that would be payable to any employee pursuant to such plan
\nor agreement who is covered thereby.<\/p>\n
(b) At or prior to the Effective Time, Newco AG shall
\nrecommend to its Supervisory Board (Aufsichtsrat) that Newco AG, represented by
\nits Supervisory Board, enter into employment agreements (Dienstvertrag)
\nsubstantially in the form previously provided by Daimler-Benz to Chrysler with
\nthe Daimler-Benz and Chrysler officers identified on Exhibit E.<\/p>\n
ARTICLE IX<\/p>\n
ADDITIONAL AGREEMENTS<\/p>\n
Section 9.1. No Solicitation. (a) Neither party shall, nor shall it
\npermit any of its Subsidiaries to, nor shall it authorize or permit any of its
\ndirectors, officers or employees or any investment banker, financial advisor,
\nattorney, accountant or other representative retained by it or any of its
\nSubsidiaries to, directly or indirectly through another person, (i) solicit,
\ninitiate or encourage (including by way of furnishing information), or take any
\nother action designed to facilitate, any inquiries or the making of any proposal
\nwhich constitutes a Takeover Proposal or (ii) participate in any discussions or
\nnegotiations regarding, or furnish to any person any information with respect to
\na Takeover Proposal; provided, that if the party’s Board of Directors (or the
\nManagement Board (Vorstand) in the case of Daimler-Benz) determines in good
\nfaith, after receiving the advice of outside counsel, that its failure to do so
\nmay result in a breach of its fiduciary duties to its stockholders under
\napplicable law, such party may, in response to a Takeover Proposal which was not
\nsolicited by it, which did not otherwise result from a breach of this Section
\n9.1(a) and which is made or received prior to the effectiveness of the Chrysler
\nStockholder Approval (in the case of a Takeover Proposal relating to Chrysler)
\nor the Daimler-Benz Stockholder Approval (in the case of a Takeover Proposal
\nrelating to Daimler-Benz), and subject to providing to the other party prior
\nwritten notice of its decision to take such action and of such party’s
\ncompliance with Section 9.1(c), (x) furnish information with respect to such
\nparty and its Subsidiaries to any person making a<\/p>\n
37
\n 44
\nTakeover Proposal pursuant to a customary confidentiality agreement (as
\ndetermined by such party after receiving the advice of its outside counsel) and
\n(y) participate in discussions or negotiations regarding such Takeover Proposal.
\nEach party shall promptly notify the other party of any Takeover Proposal
\n(including, without limitation, the material terms and conditions thereof and
\nthe identity of the person making it) as promptly as practicable after its
\nreceipt thereof and shall thereafter inform the other party of any material
\nchange in the status of any discussions or negotiations with such third party,
\nand any material changes to the terms and conditions of such Takeover Proposal
\nand shall promptly give the other party a copy of any business or financial
\ninformation related to Chrysler or Daimler-Benz, as the case may be, delivered
\nto such person which has not previously been reviewed by such other party. For
\npurposes of this Agreement, “Takeover Proposal” means any bona fide inquiry,
\nproposal or offer from any person relating to any (1) tender or exchange offer
\ninvolving 25% or more of the capital stock of such party, (2) merger,
\nconsolidation or other business combination involving such party or any of its
\nSignificant Subsidiaries, (3) direct or indirect acquisition or purchase of a
\nbusiness that constitutes 25% or more of the assets of such party and its
\nSubsidiaries, taken as a whole, or 25% or more of the equity securities of the
\nparty, (4) recapitalization or restructuring of such party or any of its
\nSignificant Subsidiaries, or (5) other transaction similar to any of the
\nforegoing with respect to such party or any of its Significant Subsidiaries,
\nother than the transactions contemplated by this Agreement. Effective as of the
\ndate of this Agreement, each party shall immediately terminate any discussions
\nor negotiations with any other third parties, if any, that may be currently in
\nprogress with respect to any Takeover Proposal and shall request that all
\nconfidential information furnished on behalf of such party to any such third
\nparties be returned.<\/p>\n
(b) Except as expressly permitted by this Section 9.1, neither
\nthe Board of Directors of Chrysler or any committee thereof nor Daimler-Benz by
\nits Management Board (Vorstand) or any committee thereof shall (i) withdraw or
\nmodify, or propose publicly to withdraw or modify, in a manner adverse to the
\nother party, the approval or recommendation by such Board of Directors or
\nManagement Board (Vorstand) or any such committee of the transactions
\ncontemplated by this Agreement, (ii) approve or recommend, or propose publicly
\nto approve or recommend, any Takeover Proposal, or (iii) cause its company to
\nenter into any letter of intent, agreement in principle, acquisition agreement
\nor other similar agreement (each, an “Acquisition Agreement”) related to any
\nTakeover Proposal. Notwithstanding the foregoing, at any time prior to the
\neffectiveness of the Chrysler Stockholder Approval (in the case of Chrysler) or
\nthe Daimler-Benz Stockholder Approval (in the case of Daimler-Benz), (x) the
\nBoard of Directors of Chrysler, to the extent that it determines in good faith,
\nafter receiving the advice of outside counsel, that its failure to do so may
\nresult in a breach of its fiduciary duties to Chrysler’s stockholders under
\napplicable law, may (subject to this and the following sentences) terminate this
\nAgreement solely in order to concurrently enter into an Acquisition Agreement
\nwith respect to any Superior Proposal, but only at a time that is after the
\nthird business day following Daimler-Benz’s receipt of written notice advising
\nDaimler-Benz that the Board of Directors of Chrysler is prepared to accept a
\nSuperior Proposal, specifying the material terms and conditions of such Superior
\nProposal and identifying the person making such Superior Proposal, and (y) the
\nManagement Board (Vorstand) of Daimler-Benz, to the extent that it determines in
\ngood faith, after receiving the advice of outside counsel, that its failure to
\ndo so may result in a breach of its fiduciary duties to Daimler-Benz’s
\nstockholders under <\/p>\n
38
\n 45
\napplicable law, may (subject to this and the following sentence) terminate this
\nAgreement solely in order to concurrently enter into an Acquisition Agreement
\nwith respect to a Superior Proposal, but only at a time that is after the third
\nbusiness day following Chrysler’s receipt of written notice advising Chrysler
\nthat such Board is prepared to accept a Superior Proposal, specifying the
\nmaterial terms and conditions of such Superior Proposal and identifying the
\nperson making such Superior Proposal. For purposes of this Agreement, “Superior
\nProposal” means any Takeover Proposal on terms that the Board of Directors of
\nChrysler or the Management Board (Vorstand) of Daimler-Benz, as the case may be,
\ndetermines in its good faith judgment (after receiving the advice of its
\nfinancial advisor) to be a superior financial alternative to that party’s
\nstockholders when compared as a whole with the transactions contemplated by this
\nAgreement and for which financing, to the extent required, is then committed or
\nwhich, in the good faith judgment of such Board after receiving the advice of
\nits financial advisor, is reasonably likely to be obtained by such third party.<\/p>\n
(c) Nothing contained in this Section 9.1 shall prohibit
\neither party from taking and disclosing to its stockholders a position
\ncontemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making
\nany disclosure to its stockholders if, in the good faith judgment of the Board
\nof Directors of Chrysler, in the case of Chrysler, or the Management Board
\n(Vorstand) or the Supervisory Board (Aufsichtsrat) of Daimler-Benz, in the case
\nof Daimler-Benz, after consultation with outside counsel, failure so to disclose
\nmay be inconsistent with its obligations under applicable law.<\/p>\n
Section 9.2. Preparation of the F-4 Registration Statement, the
\nProxy Statement\/Prospectus and the U.S. Exchange Offer Documents; Stockholders
\nMeetings. (a) As soon as practicable following the date of this Agreement, (i)
\nChrysler, Daimler-Benz and Newco AG shall prepare and file with the SEC the
\npreliminary Proxy Statement\/Prospectus, (ii) Daimler-Benz and Newco AG shall
\nprepare and file with the SEC the F-4 Registration Statement, and (iii)
\nDaimler-Benz and Newco AG shall prepare and file with the SEC the U.S. Exchange
\nOffer Documents. Each of Chrysler, Daimler-Benz and Newco AG shall use
\nreasonable best efforts to have the F-4 Registration Statement declared
\neffective under the Securities Act as promptly as practicable after such filing.
\nChrysler shall use reasonable best efforts to cause the Proxy
\nStatement\/Prospectus to be delivered to Chrysler’s stockholders, Daimler-Benz
\nshall use reasonable best efforts to cause the Proxy Statement\/Prospectus to be
\ndelivered to Daimler-Benz’s stockholders, and Daimler-Benz and Newco AG shall
\nuse reasonable best efforts to cause the Exchange Offer Documents to be
\ndelivered to Daimler-Benz’s stockholders (including the holders of the
\nDaimler-Benz ADRs), in each case as promptly as practicable after the F-4
\nRegistration Statement is declared effective under the Securities Act.
\nDaimler-Benz and Newco AG shall also take any action reasonably required to be
\ntaken under any applicable state securities laws in connection with the issuance
\nof Newco Ordinary Shares in the Daimler-Benz Exchange Offer and the Daimler-Benz
\nMerger and the issuance of Newco ADSs in the Daimler-Benz Exchange Offer, the
\nU.S. Share Exchange, the Chrysler Merger and the Daimler-Benz Merger, and
\nChrysler shall furnish all information concerning Chrysler and the holders of
\nChrysler Common Stock as may be reasonably requested in connection with any such
\naction. No filing of, or amendment or supplement to, the F-4 Registration
\nStatement, the Proxy Statement\/Prospectus or the Exchange Offer Documents shall
\nbe made by Daimler-Benz or Newco<\/p>\n
39
\n 46
\nAG without providing Chrysler the opportunity to review and comment thereon.
\nEach of Daimler-Benz and Newco AG shall advise Chrysler, promptly after it
\nreceives notice thereof, of the time when the F-4 Registration Statement has
\nbecome effective or any supplement or amendment has been filed, the issuance of
\nany stop order, the suspension of the qualification of the Newco Ordinary Shares
\nissuable in connection with the Daimler-Benz Exchange Offer and the Daimler-Benz
\nMerger or the Newco ADSs issuable in connection with the Daimler-Benz Exchange
\nOffer, the U.S. Share Exchange, the Chrysler Merger or the Daimler-Benz Merger
\nfor offering or sale in any jurisdiction, or any request by the SEC for
\namendment of the Proxy Statement\/Prospectus or the F-4 Registration Statement or
\ncomments thereon and responses thereto or requests by the SEC for additional
\ninformation. If at any time prior to the Effective Time any information relating
\nto Chrysler, Daimler-Benz or Newco AG, or any of their respective affiliates,
\nofficers or directors, is discovered by Chrysler, Daimler-Benz or Newco AG,
\nwhich should be set forth in an amendment or supplement to any of the F-4
\nRegistration Statement, the Proxy Statement\/Prospectus or the Exchange Offer
\nDocuments, so that any of such documents would not include any misstatement of a
\nmaterial fact or omit to state any material fact necessary to make the
\nstatements therein, in light of the circumstances under which they were made,
\nnot misleading, the party that discovers such information shall promptly notify
\nthe other parties hereto and an appropriate amendment or supplement describing
\nsuch information shall be promptly filed with the SEC and, to the extent
\nrequired by law, disseminated to the stockholders of Chrysler and Daimler-Benz.<\/p>\n
(b) Chrysler shall, as promptly as practicable after the F-4
\nRegistration Statement is declared effective under the Securities Act, give
\nnotice of, convene and hold a meeting of its stockholders (the “Chrysler
\nStockholders Meeting”) in accordance with the DGCL for the purpose of obtaining
\nthe Chrysler Stockholder Approval and, subject to its rights to terminate this
\nAgreement pursuant to Section 11.1(f), shall, through its Board of Directors,
\nrecommend to its stockholders the approval and adoption of this Agreement, the
\nChrysler Merger and the other transactions contemplated hereby. The Chrysler
\nStockholders Meeting shall be scheduled and, if necessary, adjourned as
\nappropriate so that the vote necessary to obtain the Chrysler Stockholder
\nApproval occurs simultaneously with the Daimler-Benz Stockholder Approval.<\/p>\n
(c) Daimler-Benz shall, as promptly as practicable after the
\nF-4 Registration Statement is declared effective under the Securities Act, give
\nnotice of, convene and hold a meeting of its stockholders (the “Daimler-Benz
\nStockholders Meeting”) in accordance with the GSCL for the purpose of obtaining
\nthe Daimler-Benz Stockholder Approval and, subject to its rights to terminate
\nthis Agreement pursuant to Section 11.1(d), shall, through its Management Board
\n(Vorstand) and Supervisory Board (Aufsichtsrat), recommend to its stockholders
\nthe approval and adoption of this Agreement, the Daimler-Benz Exchange Offer,
\nthe Daimler-Benz Merger and the other transactions contemplated hereby. The
\nDaimler-Benz Stockholders Meeting shall be scheduled and, if necessary,
\nadjourned as appropriate so that the Daimler-Benz Stockholder Approval occurs
\nsimultaneously with the Chrysler Stockholder Approval.<\/p>\n
Section 9.3. Chrysler Stock Issuance. Prior to the Effective Time
\nand unless the Minimum Condition has been changed to the 80% Minimum, Chrysler
\nshall issue and sell, in such<\/p>\n
40
\n 47
\nmanner as Chrysler reasonably determines and is reasonably acceptable to
\nDaimler-Benz, approximately 30 million shares of Chrysler Common Stock (or such
\ngreater or lesser number as will allow the Mergers to be accounted for as a
\n“pooling-of-interests” under APB No. 16 and applicable SEC rules and
\nregulations) (the “Chrysler Stock Issuance”). The Chrysler Stock Issuance shall
\nbe accomplished on such terms and conditions as Chrysler reasonably believes are
\nappropriate and are reasonably acceptable to Daimler-Benz. Daimler-Benz and
\nChrysler shall cooperate with each other with respect to the Chrysler Stock
\nIssuance. Shares of Chrysler Common Stock sold and issued pursuant to the
\nChrysler Stock Issuance shall be treated for all purposes as issued and
\noutstanding shares of Chrysler Common Stock at the Effective Time.<\/p>\n
Section 9.4. Accountants’ Comfort Letters. Each of Daimler-Benz and
\nChrysler shall use their reasonable best efforts to cause to be delivered to the
\nother two letters from their respective independent accountants, one dated a
\ndate within two business days before the date on which the F-4 Registration
\nStatement shall become effective and one dated a date within two business days
\nbefore the Effective Time, in form and substance reasonably satisfactory to the
\nrecipient and customary in scope and substance for comfort letters delivered by
\nindependent accountants in connection with registration statements similar to
\nthe F-4 Registration Statement.<\/p>\n
Section 9.5. Accountants’ Pooling Letters. Each of Daimler-Benz and
\nChrysler shall use their reasonable best efforts to cause to be delivered to
\neach other and their respective accountants a letter from the other’s
\nindependent accountants addressed to Daimler-Benz and Chrysler, dated as of the
\ndate the F-4 Registration Statement is declared effective and as of the Closing
\nDate, stating that accounting for the Mergers as a “pooling-of-interests” under
\nAPB No. 16 and applicable SEC rules and regulations is appropriate if the
\nMergers are consummated as contemplated by this Agreement.<\/p>\n
Section 9.6. Access to Information; Confidentiality. (a) Each of
\nChrysler and Daimler-Benz shall, and shall cause each of their respective
\nSubsidiaries to, afford to the other party and to the officers, employees,
\naccountants, counsel, financial advisors and other representatives of such other
\nparty, reasonable access during normal business hours during the period prior to
\nthe Effective Time to all their respective properties, books, contracts,
\ncommitments, personnel and records and, during such period, each of Chrysler and
\nDaimler-Benz shall, and shall cause each of its respective Subsidiaries to,
\nfurnish promptly to the other party (i) a copy of each report, schedule,
\nregistration statement and other document filed by it during such period
\npursuant to the requirements of U.S. federal or state securities laws or German
\nsecurities laws and (ii) all other information concerning its business,
\nproperties and personnel as such other party may reasonably request. No review
\npursuant to this Section 9.6 shall affect any representation or warranty given
\nby the other party hereto.<\/p>\n
(b) Each of Daimler-Benz, Chrysler and Newco AG will hold and
\nwill cause each of their respective officers, directors, employees, attorneys,
\ninvestment bankers and other advisors (“representatives”) to hold in strict
\nconfidence (unless compelled to disclose by judicial or administrative process)
\nall non-public information obtained, whether prior to or after the date of this<\/p>\n
41
\n 48
\nAgreement, from or provided on behalf of the other party, except to the extent
\nthat such information can be shown to have been (i) previously known or
\nindependently developed by the party receiving such information, (ii) in the
\npublic domain through no fault of the receiving party, or (iii) later lawfully
\nacquired by the receiving party from other sources not known by the receiving
\nparty to be bound by confidentiality obligations (the “Confidential
\nInformation”). Each of Daimler-Benz, Chrysler and Newco AG will, and will cause
\neach of their respective representatives to, use the Confidential Information
\nreceived by it solely in connection with its evaluation of the transactions
\ncontemplated by this Agreement and in furtherance of the consummation of such
\ntransactions in accordance with the terms of this Agreement. In the event of the
\ntermination of this Agreement, each of Daimler-Benz, Chrysler and Newco AG will,
\nand will cause each of their respective representatives to, (x) maintain the
\nconfidentiality of the Confidential Information, and (y) return all written
\nConfidential Information promptly upon the written request of the other party.
\nIn addition, each of Daimler-Benz, Chrysler and Newco AG, as a result of their
\nreceipt of Confidential Information will, and will cause each of their
\nrespective representatives not to, solicit any employee of the other for
\nemployment, provided that each of Daimler-Benz, Chrysler and Newco AG may engage
\nin general solicitations of employment not specifically directed to employees of
\nChrysler, Daimler-Benz and Newco AG, as the case may be.<\/p>\n
Section 9.7. Takeover Statute. Chrysler and Daimler-Benz shall (i)
\ntake all action necessary to ensure that no state takeover statute or similar
\nstatute or regulation is or becomes applicable to the Chrysler Merger, this
\nAgreement, or any of the other transactions contemplated by this Agreement and
\n(ii) if any state takeover statute or similar statute or regulation becomes
\napplicable to the Chrysler Merger, this Agreement, or any other transaction
\ncontemplated by this Agreement, take all action necessary to ensure that the
\nChrysler Merger and the other transactions contemplated by this Agreement may be
\nconsummated as promptly as practicable on the terms contemplated by this
\nAgreement and otherwise to minimize the effect of such statute or regulation on
\nthe Chrysler Merger and the other transactions contemplated by this Agreement.<\/p>\n
Section 9.8. Indemnification, Exculpation and Insurance. (a)
\nDaimler-Benz and Newco AG shall maintain in effect in accordance with their
\nterms all rights to indemnification and exculpation from liabilities for acts or
\nomissions occurring at or prior to the Effective Time now existing in favor of
\nthe current or former directors or officers of Chrysler or Daimler-Benz or any
\nof their respective Subsidiaries as provided in their respective certificates of
\nincorporation or by-laws (or comparable organizational documents) and any
\nindemnification agreements of Chrysler or Daimler-Benz. In addition, from and
\nafter the Effective Time, directors and officers of Chrysler who become
\ndirectors or officers of Newco AG or Daimler-Benz shall be entitled to the same
\nindemnity rights and protections as are afforded to other directors and officers
\nof Newco AG or Daimler-Benz, as the case may be, and Management Board members
\n(Mitglieder des Vorstands) and officers of Daimler-Benz who become directors or
\nofficers of Newco AG or Chrysler shall be entitled to the same indemnity rights
\nand protections as are afforded to other directors and officers of Newco AG or
\nChrysler, as the case may be.<\/p>\n
42
\n 49
\n (b) If Newco AG, Daimler-Benz or any of their respective
\nsuccessors or assigns (i) consolidates with or merges into any other person and
\nis not the continuing or surviving corporation or entity of such consolidation
\nor merger or (ii) transfers or conveys all or substantially all of its
\nproperties and assets to any person, then, and in each such case, proper
\nprovision will be made so that the successors and assigns of Newco AG or
\nDaimler-Benz, as the case may be, assume the obligations set forth in this
\nSection 9.8.<\/p>\n
(c) From and after the Effective Time, Chrysler and Newco AG
\nwill indemnify and hold harmless each present and former director and officer of
\nChrysler and its Subsidiaries (the “Indemnified Parties”), against any costs or
\nexpenses (including attorneys’ fees), judgments, fines, losses, claims, damages
\nor liabilities (collectively, “Costs”) incurred in connection with any claim,
\naction, suit, proceeding or investigation, whether civil, criminal,
\nadministrative or investigative, arising out of or pertaining to matters
\nexisting or occurring at or prior to the Effective Time, to the fullest extent
\nthat Chrysler or such Subsidiary would have been permitted under applicable law
\nand the Certificate of Incorporation or Bylaws of Chrysler or such Subsidiary in
\neffect on the date hereof to indemnify or to obtain insurance for such person
\n(and Newco AG or Chrysler shall also advance expenses as incurred to the fullest
\nextent permitted under applicable law provided the person to whom expenses are
\nadvanced provides an undertaking to repay such advances if it is ultimately
\ndetermined that such person is not entitled to indemnification).<\/p>\n
(d) The provisions of this Section 9.8 are intended to be for
\nthe benefit of, and may be enforced by, each indemnified party, his or her heirs
\nand his or her representatives and are in addition to, and not in substitution
\nfor, any other rights to indemnification or contribution that any such person
\nmay have by contract or otherwise.<\/p>\n
Section 9.9. Public Announcements. Daimler-Benz and Chrysler shall
\nconsult with each other before issuing, and provide each other the opportunity
\nto review, comment upon and concur with and use reasonable best efforts to agree
\non, any press release or other public statements with respect to the
\ntransactions contemplated by this Agreement, including the Mergers, and shall
\nnot issue any such press release or make any such public statement prior to such
\nconsultation, except as either party may determine is required by applicable
\nlaw, court process or by obligations pursuant to any listing agreement with any
\nnational securities exchange. The parties agree that the initial press release
\nto be issued with respect to the transactions contemplated by this Agreement
\nshall be in the form heretofore agreed to by the parties.<\/p>\n
Section 9.10. Affiliates. Unless Chrysler and Daimler-Benz shall
\nhave determined that, because of circumstances not related to the matters set
\nforth in this Section 9.10, the transactions contemplated by this Agreement will
\nnot be accounted for as a “pooling of interests” under US GAAP: (a) As soon as
\npracticable after the date hereof, Chrysler shall deliver to Daimler-Benz a
\nletter identifying all persons who are, at the time this Agreement is submitted
\nfor adoption by the stockholders of Chrysler, “affiliates” of Chrysler for
\npurposes of Rule 145 under the Securities Act or for purposes of qualifying the
\nMergers for “pooling-of-interests” accounting treatment under APB No. 16 and
\napplicable SEC rules and regulations, and such list shall be updated as
\nnecessary<\/p>\n
43
\n 50
\nto reflect changes from the date hereof. Chrysler shall use reasonable best
\nefforts to cause each person identified on such list to deliver to Daimler-Benz
\nnot less than 30 days prior to the Effective Time, a written agreement
\nsubstantially in the form attached as Exhibit B-1. As soon as practicable after
\nthe date hereof, Daimler-Benz shall deliver to Chrysler a letter identifying all
\npersons who are, at the time this Agreement is submitted for adoption by the
\nstockholders of Daimler-Benz, “affiliates” of Daimler-Benz for purposes of Rule
\n145 under the Securities Act or for purposes of qualifying the Mergers for
\n“pooling-of-interests” accounting treatment under APB No. 16 and applicable SEC
\nrules and regulations, and such list shall be updated as necessary to reflect
\nchanges from the date hereof. Daimler-Benz shall use reasonable best efforts to
\ncause all persons who are “affiliates” of Daimler-Benz for purposes of
\nqualifying the Mergers for “pooling-of-interests” accounting treatment under APB
\nNo. 16 and applicable SEC rules and regulations to deliver to Chrysler not less
\nthan 30 days prior to the Effective Time, a written agreement substantially in
\nthe form of Exhibit B-2.<\/p>\n
(b) Newco AG shall publish no later than 45 days after the end
\nof the first month after the Effective Time in which there are at least 30 days
\nof post-Effective Time combined operations (which month may be the month in
\nwhich the Effective Time occurs), combined sales and net income figures as
\ncontemplated by and in accordance with the terms of SEC Accounting Series
\nRelease No. 135.<\/p>\n
Section 9.11. Stock Exchange Listings. (a) As soon as practicable
\nfollowing the date of this Agreement and in any event prior to the Daimler-Benz
\nExchange Offer Expiration Date, Daimler-Benz and Newco AG shall prepare and file
\nall documents with the Frankfurt Stock Exchange Admission Board (the “Stock
\nExchange Admission Board”) and all other stock exchange admission boards on
\nwhich the Daimler-Benz Ordinary Shares are listed and use their reasonable best
\nefforts to cause the Newco Ordinary Shares to be issued by Newco AG in
\nconnection with the transactions contemplated by this Agreement to be approved
\nfor listing on the Frankfurt Stock Exchange (the “FSE”) and such other stock
\nexchanges, subject to official notice of issuance. Newco AG shall prepare and
\nfile with the Stock Exchange Admission Board the draft German Prospectus, and
\nNewco AG and Daimler-Benz shall promptly provide the Executive Office of the
\nTakeover Commission with all information required under the German Takeover
\nCode. Each of Chrysler, Daimler-Benz and Newco AG shall use its reasonable best
\nefforts to have the German Prospectus consented to by the Stock Exchange
\nAdmission Board as promptly as practicable after such filings and the listing of
\nNewco Ordinary Shares obtained on all stock exchanges on which the Daimler-Benz
\nOrdinary Shares are listed. If at any time prior to the Effective Time, any of
\nthe parties discover that an amendment or supplement to the documents or other
\ninformation filed with the Stock Exchange Admission Board, the other stock
\nexchange admission boards or the Executive Office of the Takeover Commission
\nshould be filed so that any such documents or information would not include any
\nmisstatement of a material fact or any omission of any material fact necessary
\nto make the statements therein, in light of the circumstances under which they
\nwere made, not misleading, the party that makes such discovery shall promptly
\nnotify the other parties hereto and an appropriate amendment or supplement shall
\nbe promptly filed with the Stock Exchange Admission Board, the stock exchange
\nadmission boards of all other stock exchanges on which the<\/p>\n
44
\n 51
\nDaimler-Benz Ordinary Shares are listed and the Executive Office of the Takeover
\nCommission and, to the extent required by law, such information shall be made
\npublic.<\/p>\n
(b) Daimler-Benz and Newco AG shall use reasonable best
\nefforts to cause the Newco ADSs to be approved for listing on the NYSE, subject
\nto official notice of issuance, as promptly as practicable after the date
\nhereof, and in any event prior to the Daimler-Benz Exchange Offer Expiration
\nDate.<\/p>\n
Section 9.12. Stockholder Litigation. Each of Chrysler and
\nDaimler-Benz shall give the other the reasonable opportunity to participate in
\nthe defense of any stockholder litigation against Chrysler, Daimler-Benz or
\nNewco AG, as applicable, and its directors relating to the transactions
\ncontemplated by this Agreement.<\/p>\n
Section 9.13. Tax Treatment. Each of Daimler-Benz and Chrysler shall
\nuse its reasonable best efforts (i) to cause the Chrysler Exchange, either (a)
\nto qualify as a reorganization within the meaning of Section 368(a) of the Code
\nor (b) when integrated with the Daimler-Benz Exchange Offer and taking into
\naccount the Daimler-Benz Merger, to be treated as a transaction described in
\nSection 351(a) of the Code, (ii) to cause the Daimler-Benz Exchange Offer either
\n(a) when integrated with the Chrysler Exchange, to be treated as a transaction
\ndescribed in Section 351(a) of the Code or (b) if integrated with the
\nDaimler-Benz Merger, to qualify as a reorganization within the meaning of
\nSection 368(a) of the Code, (iii) to cause the Daimler-Benz Exchange Offer and
\nthe Daimler-Benz Merger not to result in the recognition of any gain or loss by
\nNewco AG, Daimler-Benz or stockholders of Daimler-Benz under German law, and
\n(iv) to enable Chrysler to obtain from the Internal Revenue Service the private
\nletter ruling described in Section 10.3(d) and to meet the conditions thereof.
\nChrysler agrees to consult with Daimler-Benz with respect to Chrysler’s request
\nfor the IRS private letter ruling described in Section 10.3(d). Prior to
\nsubmitting any written submissions or representations to the IRS in connection
\nwith such request, Chrysler further agrees to provide such written submissions
\nand representations to Daimler-Benz for Daimler-Benz’s review and approval,
\nwhich shall not be unreasonably withheld or delayed.<\/p>\n
Section 9.14. Standstill Agreements; Confidentiality Agreements.
\nDuring the period from the date of this Agreement through the Effective Time,
\nneither Chrysler nor Daimler-Benz shall terminate, amend, modify or waive any
\nprovision of any standstill agreement or waive any provision of any
\nconfidentiality agreement to which it or any of its respective Subsidiaries is a
\nparty, except as provided in the Chrysler Stockholders Agreement. During such
\nperiod, Chrysler or Daimler-Benz, as the case may be, shall enforce, to the
\nfullest extent permitted under applicable law, the provisions of any such
\nagreement, including by obtaining injunctions to prevent any breaches of such
\nagreements and to enforce specifically the terms and provisions thereof in any
\ncourt of the United States of America or of any state thereof or any court in
\nGermany or any political subdivision thereof, in each such case which has
\njurisdiction of the parties and the subject matter.<\/p>\n
Section 9.15. Conveyance Taxes. Daimler-Benz and Chrysler shall
\ncooperate in the preparation, execution and filing of all returns,
\nquestionnaires, applications or other documents<\/p>\n
45
\n 52
\nregarding any real property transfer or gains, sales, use, transfer, value
\nadded, stock transfer and stamp taxes, any transfer, recording, registration and
\nother fees or any similar taxes that become payable in connection with the
\ntransactions contemplated by this Agreement that are required or permitted to be
\nfiled on or before the Effective Time. Chrysler shall pay, without deduction or
\nwithholding from any amount payable to the holders of Chrysler Common Stock (and
\nshall not directly or indirectly be reimbursed by Daimler-Benz or Newco AG for),
\nany such taxes or fees imposed by any taxing authority (and any penalties and
\ninterest with respect to such taxes and fees) on Chrysler or any holder of
\nChrysler Common Stock that become payable in connection with the transactions
\ncontemplated by this Agreement. Daimler-Benz shall pay, without deduction or
\nwithholding from any amount payable to the holders of Daimler-Benz Ordinary
\nShares or Daimler-Benz ADSs (and shall not directly or indirectly be reimbursed
\nby Chrysler or Newco AG for), any such taxes or fees imposed by any taxing
\nauthority (and any penalties and interest with respect to such taxes and fees)
\non Daimler-Benz or any holder of Daimler-Benz Ordinary Shares or Daimler-Benz
\nADSs that become payable in connection with the transactions contemplated by
\nthis Agreement.<\/p>\n
Section 9.16. Certain Obligations of Newco AG. Certain obligations
\nof Newco AG set forth in this Agreement, including those obligations designed to
\nsurvive the consummation of the U.S. Share Exchange, the German Share Exchange
\nor the Daimler-Benz Merger, require certain additional corporate actions by or
\nwith respect to Newco AG specified in the German Stock Corporation Law
\n(Aktiengesetz) including Section 52 and Sections 183 et seq. (in particular
\nSection 187) of the German Stock Corporation Law (Aktiengesetz) and in the
\nGerman Transformation Act (Umwandlungsgesetz) be taken. Newco AG shall recommend
\nto its Supervisory Board (Aufsichtsrat) and to its shareholders meeting that
\nsuch actions be taken. As required by law, certain of such obligations of Newco
\nAG shall be incorporated in agreements in connection with the contributions in
\nkind to Newco AG, which agreements shall be entered into by Newco AG and the
\nU.S. Exchange Agent as well as the Daimler-Benz Exchange Agent and Chrysler,
\nrespectively, in the context of the U.S. Share Exchange and the German Share
\nExchange pursuant to Sections 52 and 183 et seq. of the German Stock Corporation
\nLaw (Aktiengesetz).<\/p>\n
Section 9.17. Reasonable Best Efforts. Upon the terms and subject to
\nthe conditions set forth in this Agreement, each of the parties agrees to use
\nreasonable best efforts to take, or cause to be taken, all actions, and to do,
\nor cause to be done, and to assist and cooperate with the other parties in
\ndoing, all things necessary, proper or advisable to consummate and make
\neffective, in the most expeditious manner practicable, the transactions
\ncontemplated by this Agreement, including (i) the obtaining of all necessary
\nactions or non-actions, waivers, consents and approvals from Governmental
\nEntities and the making of all necessary registrations and filings and the
\ntaking of all steps as may be necessary to obtain an approval or waiver from, or
\nto avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining
\nof all necessary consents, approvals or waivers from third parties, (iii) the
\ndefending of any lawsuits or other legal proceedings, whether judicial or
\nadministrative, challenging this Agreement or the consummation of the
\ntransactions contemplated by this Agreement, including seeking to have any stay
\nor temporary restraining order entered by any court or other Governmental Entity
\nvacated or reversed, and (iv) the execution and<\/p>\n
46
\n 53
\ndelivery of any additional instruments necessary to consummate the transactions
\ncontemplated by, and to fully carry out the purposes of, this Agreement. Nothing
\nset forth in this Section 9.17 will limit or affect actions permitted to be
\ntaken pursuant to Section 9.1.<\/p>\n
ARTICLE X<\/p>\n
CLOSING CONDITIONS<\/p>\n
Section 10.1. Conditions to All Parties’ Obligation to Close. The
\nobligation of all parties to consummate the Daimler-Benz Exchange Offer and the
\nGerman Share Exchange, the Daimler-Benz Merger and the Chrysler Merger and the
\nU.S. Share Exchange is subject to the satisfaction on or prior to the
\nconsummation of the Daimler-Benz Exchange Offer of the following conditions:<\/p>\n
(a) (i) Any applicable waiting period under the HSR Act
\nrelating to the transactions contemplated by this Agreement shall have expired
\nor been terminated; and (ii) the Commission of the European Union shall have
\napproved the transactions contemplated by this Agreement under Regulation (EEC)
\nNo. 4064\/89 of the Council of the European Union, or such approval shall have
\nbeen deemed to have been granted.<\/p>\n
(b) The F-4 Registration Statement shall have become effective
\nand no stop order suspending the effectiveness of the F-4 Registration Statement
\nshall have been issued and no proceeding for that purpose shall have been
\ninitiated by the SEC.<\/p>\n
(c) The Newco ADSs issuable pursuant to this Agreement shall
\nhave been approved for listing on the NYSE, subject to official notice of
\nissuance, and the Newco Ordinary Shares issuable to Daimler-Benz’s stockholders
\npursuant to Article I and III shall have been approved for listing on the FSE.<\/p>\n
(d) Each of the Chrysler Stockholder Approval and the
\nDaimler-Benz Stockholder Approval shall have been obtained.<\/p>\n
(e) Other than the filing provided for under Section 2.9 and
\nfilings pursuant to the HSR Act, and with the Commission of the European Union
\nunder Regulation (EEC) No. 4064\/89 of the Council of the European Union, all
\nconsents, approvals and actions of, filings with and notices to any Governmental
\nEntity required of Chrysler, Daimler-Benz or any of their respective
\nSubsidiaries to consummate the transactions contemplated hereby, the failure of
\nwhich to be obtained or taken is reasonably likely to have a Material Adverse
\nEffect on Newco AG, shall have been obtained or made, all in form and substance
\nreasonably satisfactory to Chrysler and Daimler-Benz.<\/p>\n
47
\n 54
\n (f) No judgment, order, decree, statute, law, ordinance, rule
\nor regulation, entered, enacted, promulgated, enforced or issued by any
\nGovernmental Entity of competent jurisdiction or other legal restraint or
\nprohibition (collectively, “Restraints”) shall be in effect (i) preventing the
\nconsummation of the Daimler-Benz Exchange Offer, the Chrysler Merger, the U.S.
\nShare Exchange or the Daimler-Benz Merger, or (ii) which otherwise is reasonably
\nlikely to have a Material Adverse Effect on Chrysler or Daimler-Benz; provided
\nthat each of the parties shall have used its reasonable best efforts to prevent
\nthe entry of any such Restraints and to appeal as promptly as possible any such
\nRestraints that may be entered.<\/p>\n
(g) Each of Daimler-Benz and Chrysler shall have received the
\naccountants’ letters contemplated by Sections 9.4 and (unless the Minimum
\nCondition has been changed to the 80% Minimum) 9.5.<\/p>\n
(h) The Chrysler Stock Issuance shall have been completed in
\naccordance with Section 9.3 (unless the Minimum Condition has been changed to
\nthe 80% Minimum).<\/p>\n
(i) All conditions to the Daimler-Benz Exchange Offer shall
\nhave been satisfied.<\/p>\n
Section 10.2. Conditions to Daimler-Benz’s and Newco AG’s Obligation
\nto Close. The obligation of Daimler-Benz and Newco AG to consummate the U.S.
\nShare Exchange and the Daimler-Benz Merger is further subject to the
\nsatisfaction on or prior to the Effective Time of the following additional
\nconditions:<\/p>\n
(a) The representations and warranties of Chrysler set forth
\nherein shall be true and correct both when made and at and as of the Effective
\nTime, as if made at and as of such time (except to the extent expressly made as
\nof an earlier date, in which case as of such date), except where the failure of
\nsuch representations and warranties to be so true and correct (without giving
\neffect to any limitation as to “materiality” or “Material Adverse Effect” set
\nforth therein) would not reasonably be expected to have, individually or in the
\naggregate, a Material Adverse Effect on Chrysler, and Daimler-Benz shall have
\nreceived a Certificate of an Executive Vice President of Chrysler as to the
\nsatisfaction of this condition.<\/p>\n
(b) Chrysler shall, in all material respects, have performed
\nand complied with all obligations required to be performed or complied with by
\nit under this Agreement at or prior to the Effective Time, and Daimler-Benz
\nshall have received a Certificate of an Executive Vice President of Chrysler as
\nto the satisfaction of this condition.<\/p>\n
(c) Daimler-Benz and Newco AG shall have received from German
\ntax counsel to Daimler-Benz, based on reasonably requested representation
\nletters and customary assumptions, an opinion, dated as of the Chrysler Merger
\nClosing Date, substantially to the effect that neither the Daimler-Benz Exchange
\nOffer nor the Daimler-Benz Merger will result in the<\/p>\n
48
\n 55
\nrecognition of any gain or loss by stockholders of Daimler-Benz or by
\nDaimler-Benz or Newco AG under German law.<\/p>\n
(d) Daimler-Benz and Newco AG shall have received from
\nSkadden, Arps, Slate, Meagher & Flom LLP, special counsel to Daimler-Benz and
\nNewco AG, an opinion, based on reasonably requested representation letters and
\ncustomary assumptions, dated as of the Daimler-Benz Exchange Offer Expiration
\nDate, substantially to the effect that for U.S. federal income tax purposes the
\nDaimler-Benz Exchange Offer, taking into account the Chrysler Exchange and the
\nDaimler-Benz Merger, should be treated as a non-recognition transfer of
\nDaimler-Benz Ordinary Shares and Daimler-Benz ADSs by the holders thereof in
\nexchange for Newco Ordinary Shares and Newco ADSs, respectively.<\/p>\n
(e) At any time after the date of this Agreement there shall
\nnot have occurred and be continuing as of the Effective Time any Material
\nAdverse Effect on Chrysler.<\/p>\n
Section 10.3. Conditions to Chrysler’s Obligation to Close. The
\nobligation of Chrysler to consummate the Chrysler Merger is further subject to
\nthe satisfaction on or prior to the Effective Time of the following additional
\nconditions:<\/p>\n
(a) The respective representations and warranties of
\nDaimler-Benz and Newco AG set forth herein shall be true and correct both when
\nmade and at and as of the Effective Time, as if made at and as of such time
\n(except to the extent expressly made as of an earlier date, in which case as of
\nsuch date), except, in the case of representations and warranties of
\nDaimler-Benz, where the failure of such representations and warranties to be so
\ntrue and correct (without giving effect to any limitation as to “materiality” or
\n“Material Adverse Effect” set forth therein) would not reasonably be expected to
\nhave, individually or in the aggregate, a Material Adverse Effect on
\nDaimler-Benz, and Chrysler shall have received a certificate of a member of the
\nBoard of Management (Vorstand) of Daimler-Benz as to the satisfaction of this
\ncondition by Daimler-Benz and a certificate of a member of the Board of
\nManagement (Vorstand) of Newco AG as to the satisfaction of this condition by
\nNewco AG.<\/p>\n
(b) Daimler-Benz and Newco AG shall, in all material respects,
\nhave performed or complied with all obligations required to be performed or
\ncomplied with by it under this Agreement at or prior to the Effective Time, and
\nChrysler shall have received a certificate of a member of the Board of
\nManagement (Vorstand) of Daimler-Benz as to the satisfaction of this condition
\nby Daimler-Benz and a certificate of a member of the Board of Management
\n(Vorstand) of Newco AG as to the satisfaction of this condition by Newco AG.<\/p>\n
(c) Chrysler shall have received from Debevoise & Plimpton,
\nspecial counsel to Chrysler, an opinion, based on a private letter ruling from
\nthe IRS addressing certain issues under Section 367(a)(1) of the Code,
\nreasonably requested representation letters and customary assumptions, dated as
\nof the Chrysler Merger Closing Date, substantially to the effect that for U.S.
\nfederal income tax purposes the Chrysler Exchange, and taking into account the
\nDaimler-<\/p>\n
49
\n 56
\nBenz Exchange Offer and the Daimler-Benz Merger, should be treated as a
\nnon-recognition transfer of Chrysler Common Stock by the holders thereof in
\nexchange for Newco ADSs.<\/p>\n
(d) Chrysler shall have received from the IRS a private letter
\nruling addressing certain issues under Section 367(a)(1) of the Code, reasonably
\nsatisfactory to Chrysler and sufficient to enable Debevoise & Plimpton to render
\nthe opinion described in Section 10.3(c).<\/p>\n
(e) The Rights Offering shall have been consummated and shall
\nhave been fully subscribed.<\/p>\n
(f) The Daimler-Benz Exchange Offer shall have been
\nconsummated.<\/p>\n
(g) At any time after the date of this Agreement there shall
\nnot have occurred and be continuing as of the Effective Time any Material
\nAdverse Effect on Daimler-Benz.<\/p>\n
Section 10.4. Further Condition to Obligations of Daimler-Benz and
\nNewco AG. After the Effective Time and the consummation of the U.S. Share
\nExchange, the obligations of Daimler-Benz and Newco AG to complete the
\nDaimler-Benz Merger shall only be subject to the satisfaction on or prior to the
\ndate of the Daimler-Benz Merger Closing of the condition set forth in Section
\n10.1(f)(i).<\/p>\n
Section 10.5. Frustration of Closing Conditions. Neither
\nDaimler-Benz nor Chrysler may rely on the failure of any condition set forth in
\nSection 10.1, 10.2, 10.3 or 10.4, as the case may be, to be satisfied if such
\nfailure was caused by such party’s failure to use reasonable best efforts to
\nconsummate the Daimler-Benz Exchange Offer, the Mergers and the other
\ntransactions contemplated by this Agreement, as required by and subject to
\nSection 9.17.<\/p>\n
ARTICLE XI<\/p>\n
TERMINATION, AMENDMENT AND WAIVER<\/p>\n
Section 11.1. Termination. This Agreement may be terminated at any
\ntime prior to the Effective Time, and (except in the case of Section 11.1(d) or
\nSection 11.1(f)) whether before or after the Chrysler Stockholder Approval or
\nthe Daimler-Benz Stockholder Approval:<\/p>\n
(a) by mutual written consent of Daimler-Benz and Chrysler;<\/p>\n
(b) by either Daimler-Benz or Chrysler:<\/p>\n
(i) if the Chrysler Merger and the Daimler-Benz Exchange Offer
\n shall not have been consummated by January 31, 1999, provided that the
\n right to terminate this Agreement pursuant to this Section 11.1(b)(i)
\n shall not be available to any party whose<\/p>\n
50
\n 57
\n failure to perform any of its obligations under this Agreement results in
\n the failure of the Chrysler Merger, the U.S. Share Exchange and the
\n Daimler-Benz Exchange Offer to be consummated on or prior to such date;
\n and provided, further, that this Agreement may be extended for up to 30
\n days by either Daimler-Benz or Chrysler by written notice to the other
\n party if the Daimler-Benz Exchange Offer or the Chrysler Merger shall not
\n have been consummated as a direct result of Daimler-Benz or Chrysler
\n having failed to receive all regulatory approvals required to be obtained
\n with respect thereto;<\/p>\n
(ii) if the Chrysler Stockholder Approval or the Daimler-Benz
\n Stockholder Approval shall not have been obtained at the respective
\n Chrysler Stockholders Meeting or Daimler-Benz Stockholders Meeting or at
\n any adjournment or postponement thereof;<\/p>\n
(iii) if any Restraint having either of the effects set forth
\n in Section 10.1(f) shall be in effect and shall have become final and
\n nonappealable, provided, that the party seeking to terminate this
\n Agreement pursuant to this Section 11.1(b)(iii) shall have used reasonable
\n best efforts to prevent the entry of and to remove such Restraint;<\/p>\n
(iv) if this Agreement shall not have been finally approved by
\n the Supervisory Board (Aufsichtsrat) of Daimler-Benz on or prior to May
\n 21, 1998.<\/p>\n
(c) by Daimler-Benz if Chrysler shall have breached or failed to
\nperform in any material respect any of its representations, warranties,
\ncovenants or other agreements contained in this Agreement, which breach or
\nfailure to perform (1) would give rise to the failure of a condition set forth
\nin Section 10.2(a) or (b), and (2) is incapable of being cured by Chrysler or is
\nnot cured within 45 days after receipt of written notice thereof;<\/p>\n
(d) prior to receipt of the Daimler-Benz Stockholder Approval, by
\nDaimler-Benz in accordance with Section 9.1(b);<\/p>\n
(e) by Chrysler, if Daimler-Benz or Newco AG shall have breached or
\nfailed to perform in any material respect any of their representations,
\nwarranties, covenants or other agreements contained in this Agreement, which
\nbreach or failure to perform (1) would give rise to the failure of a condition
\nset forth in Section 10.3(a) or (b), and (2) is incapable of being cured by
\nDaimler-Benz or Newco AG or is not cured within 45 days of written notice
\nthereof; or<\/p>\n
(f) prior to receipt of the Chrysler Stockholder Approval, by
\nChrysler in accordance with Section 9.1(b).<\/p>\n
Section 11.2. Effect of Termination. In the event of termination of
\nthis Agreement by either Chrysler or Daimler-Benz as provided in Section 11.1,
\nwritten notice thereof shall be given as promptly as possible to the other
\nparties hereto and this Agreement shall forthwith become void and have no
\neffect, without any liability or obligation on the part of Daimler-Benz,
\nChrysler or<\/p>\n
51
\n 58
\nNewco AG, except to the extent that such termination results from the willful
\nand material breach by a party of any of its representations, warranties,
\ncovenants or agreements set forth in this Agreement. Notwithstanding the
\nforegoing, the provisions of Section 5.18, paragraph (b) of Section 9.6, this
\nSection 11.2 and Article XII shall survive termination of this Agreement in
\naccordance with Article XI.<\/p>\n
ARTICLE XII<\/p>\n
MISCELLANEOUS<\/p>\n
Section 12.1. No Survival of Representations and Warranties. None of
\nthe representations and warranties in this Agreement or in any instrument or
\ndocument delivered pursuant to this Agreement shall survive the Effective Time.
\nThis Section 12.1 shall not limit any covenant or agreement of the parties which
\nby its terms contemplate performance after the Effective Time.<\/p>\n
Section 12.2. Fees and Expenses. Except as otherwise provided in
\nSection 9.15, all fees and expenses incurred in connection with the Mergers,
\nthis Agreement and the other transactions contemplated by this Agreement shall
\nbe borne by the party incurring such fees or expenses, whether or not the
\nMergers are consummated, and accordingly each of Daimler-Benz and Chrysler shall
\nbear and pay one-half of the costs and expenses incurred in connection with the
\nfiling, printing and mailing of the F-4 Registration Statement and the Proxy
\nStatement\/Prospectus (including SEC registration and filing fees).<\/p>\n
Section 12.3. Counterparts; Effectiveness. This Agreement may be
\nexecuted in two or more separate counterparts, each of which shall be deemed to
\nbe an original but all of which shall constitute one and the same agreement.
\nThis Agreement shall become effective when each party hereto shall have received
\ncounterparts hereof signed by each of the other parties hereto.<\/p>\n
Section 12.4. Governing Law. The Daimler-Benz Merger, the
\nDaimler-Benz Exchange Offer (to the extent it is conducted in Germany) and the
\ncapital contribution in kind included in the U.S. Share Exchange shall be
\ngoverned by and effected in accordance with German law. In all other respects,
\nthis Agreement shall be governed by and effected in accordance with Delaware law
\nwithout regard to the principles of conflicts of laws thereof.<\/p>\n
Section 12.5. Notices. All notices, requests, claims, demands and
\nother communications under this Agreement shall be in writing (including
\ntelecopy or similar writing) and shall be effective (a) if given by telecopy,
\nwhen such telecopy is transmitted to the telecopy number specified in this
\nSection 12.5 and the appropriate telecopy confirmation is received or (b) if
\ngiven by any other means, when delivered at the address specified in this
\nSection 12.5 (or at such other address for a party as shall be specified by like
\nnotice):<\/p>\n
52
\n 59
\n (a) if to Chrysler, to<\/p>\n
Chrysler Corporation
\n 1000 Chrysler Drive
\n Auburn Hills, Michigan 48326
\n Telecopy No.: (248) 512-5420
\n Attention: William J. O’Brien
\n Vice President, General
\n Counsel and Secretary<\/p>\n
with a copy to:<\/p>\n
Debevoise & Plimpton
\n 875 Third Avenue
\n New York, New York 10022
\n Telecopy No.: (212) 909-6836
\n Attention: Meredith M. Brown
\n Paul H. Wilson, Jr.<\/p>\n
and a further copy to:<\/p>\n
Bruckhaus Westrick Heller Lober
\n Taunusanlage 11
\n D-60329 Frankfurt am Main
\n Germany
\n Telecopy No.: 011-49-69-23 26 64
\n Attention: Dr. Harald Voss<\/p>\n
(b) if to Daimler-Benz, to<\/p>\n
Daimler-Benz Aktiengesellschaft
\n Epplestrasse 225
\n 70567 Stuttgart
\n Germany
\n Telecopy No.: 011-49-711-17-94452
\n Attention: Dr. Siegfried Schwung
\n Associate General Counsel<\/p>\n
53
\n 60
\n with a copy to:<\/p>\n
Skadden, Arps, Slate, Meagher & Flom LLP
\n 919 Third Avenue
\n New York, New York 10022
\n Telecopy No.: (212) 735-2000
\n Attention: J. Michael Schell
\n Margaret L. Wolff<\/p>\n
with a further copy to:<\/p>\n
Shearman & Sterling
\n Couvenstr. 8
\n D-40211 Dusseldorf
\n Germany
\n Telecopy No.: 011-49-211-17888-81
\n Attention: Georg F. Thoma<\/p>\n
(c) if to Newco AG, to<\/p>\n
Oppenheim Aktiengesellschaft
\n c\/o Sal. Oppenheim jr. & Cie.
\n Unter Sachsenhausen 4
\n 50667 Koln
\n Telecopy No.: 011-49-221-145-1034
\n Attention: Johannes Maret<\/p>\n
Section 12.6. Assignment; Binding Effect. Neither this Agreement nor
\nany of the rights, interests or obligations hereunder shall be assigned by any
\nof the parties hereto (whether by operation of law or otherwise) without the
\nprior written consent of the other parties. Subject to the preceding sentence,
\nthis Agreement shall be binding upon and shall inure to the benefit of the
\nparties hereto and their respective successors and permitted assigns. Any
\nassignment not permitted under this Section 12.6 shall be null and void.<\/p>\n
Section 12.7. Severability. Any term or provision of this Agreement
\nwhich is invalid or unenforceable in any jurisdiction shall, as to that
\njurisdiction, be ineffective to the extent of such invalidity or
\nunenforceability without rendering invalid or unenforceable the remaining terms
\nand provisions of this Agreement in any other jurisdiction. If any provision of
\nthis Agreement is so broad as to be unenforceable, such provision shall be
\ninterpreted to be only so broad as is enforceable. Upon such determination that
\nany term or other provision is invalid or unenforceable, the parties hereto
\nshall negotiate in good faith to modify this Agreement so as to effect the
\noriginal intent of the parties as closely as possible to the fullest extent
\npermitted by applicable law in an<\/p>\n
54
\n 61
\nacceptable manner to the end that the transactions contemplated hereby are
\nfulfilled to the extent possible.<\/p>\n
Section 12.8. Enforcement of Agreement. The parties hereto agree
\nthat money damages or other remedy at law would not be sufficient or adequate
\nremedy for any breach or violation of, or any default under, this Agreement by
\nthem and that in addition to all other remedies available to them, each of them
\nshall be entitled to the fullest extent permitted by law to an injunction
\nrestraining such breach, violation or default or threatened breach, violation or
\ndefault and to any other equitable relief, including, without limitation,
\nspecific performance, without bond or other security being required.<\/p>\n
Section 12.9. Entire Agreement; No Third-Party Beneficiaries. This
\nAgreement, the Exhibits hereto and the other agreements contemplated hereby and
\ninstruments delivered pursuant hereto and thereto constitute the entire
\nagreement, and supersede all other prior agreements and understandings, both
\nwritten and oral, among the parties, or any of them, with respect to the subject
\nmatter hereof and thereof and, except as otherwise expressly provided herein, is
\nnot intended to and shall not confer upon any person other than the parties
\nhereto any rights or remedies hereunder.<\/p>\n
Section 12.10. Reservation of Right to Revise Transaction. If the
\nimplementation and mechanics prove not to be operable, the parties will use
\ntheir reasonable best efforts to change the method of effecting the business
\ncombination between Chrysler and Daimler-Benz contemplated hereby, and each
\nparty will cooperate in such efforts, including to provide for a different form
\nof transaction to effect the business combination of Chrysler and Daimler-Benz,
\nprovided, that no such change shall (a) alter or change the amount or kind of
\nconsideration to be received by holders of Chrysler Common Stock, Daimler-Benz
\nOrdinary Shares or Daimler-Benz ADRs, (b) adversely affect the tax treatment to
\nChrysler, Daimler-Benz, Newco AG or their respective stockholders as a result of
\nthe transactions contemplated hereby, or (c) materially delay receipt of any
\nmaterial approval referred to in this Agreement or the consummation of the
\ntransactions contemplated hereby. Newco AG shall be bound by any changes to the
\ntransactions contemplated hereby that are agreed to by Chrysler and Daimler-Benz
\nin accordance with this Section 12.10.<\/p>\n
Section 12.11. Extension of Time, Waiver, Etc. At any time prior to
\nthe Effective Time, either Daimler-Benz or Chrysler may (a) extend the time for
\nthe performance of any of the obligations or acts of any other party hereto
\n(provided that Daimler-Benz may not extend the time for the performance of any
\nof the obligations of Newco AG without the written consent of Chrysler); (b)
\nwaive any inaccuracies in the representations and warranties of any other party
\nhereto contained herein or in any document delivered pursuant hereto (provided
\nthat Daimler-Benz may not waive any inaccuracies in the representations or
\nwarranties made by Newco AG without the written consent of Chrysler); or (c)
\nsubject to the proviso of Section 12.12 waive compliance with any of the
\nagreements or conditions of any other party hereto contained herein (provided
\nthat Daimler-Benz may not waive compliance with any of the agreements or
\nconditions of Newco AG without the written consent of Chrysler). Notwithstanding
\nthe foregoing, no failure or delay by Daimler-Benz<\/p>\n
55
\n 62
\nor Chrysler or Newco AG in exercising any right hereunder shall operate as a
\nwaiver thereof nor shall any single or partial exercise thereof preclude any
\nother or further exercise thereof or the exercise of any other right hereunder.
\nAny agreement on the part of Daimler-Benz or Chrysler hereto to any such
\nextension or waiver shall be valid only if set forth in an instrument in writing
\nsigned on behalf of such party.<\/p>\n
Section 12.12. Amendment. This Agreement may be amended by the
\nparties at any time before or after the Chrysler Stockholder Approval or the
\nDaimler-Benz Stockholder Approval provided, that after any such approval, there
\nshall not be made any amendment that by law requires further approval by the
\nstockholders of Chrysler or Daimler-Benz without the further approval of such
\nstockholders. This Agreement may not be amended except by an instrument in
\nwriting signed on behalf of each of the parties.<\/p>\n
Section 12.13. Interpretation. When a reference is made in this
\nAgreement to an Article, Section or Exhibit, such reference shall be to an
\nArticle or Section of, or an Exhibit to, this Agreement unless otherwise
\nindicated. The table of contents and headings contained in this Agreement are
\nfor reference purposes only and shall not affect in any way the meaning or
\ninterpretation of this Agreement. Whenever the words “include,” “includes” or
\n“including” are used in this Agreement, they shall be deemed to be followed by
\nthe words “without limitation.” The words “hereof,” “herein” and “hereunder” and
\nwords of similar import when used in this Agreement shall refer to this
\nAgreement as a whole and not to any particular provision of this Agreement. All
\nterms defined in this Agreement shall have the defined meanings when used in any
\ncertificate or other document made or delivered pursuant hereto unless otherwise
\ndefined therein. The definitions contained in this Agreement are applicable to
\nthe singular as well as the plural forms of such terms and to the masculine as
\nwell as to the feminine and neuter genders of such term. Any agreement,
\ninstrument or statute defined or referred to herein or in any agreement or
\ninstrument that is referred to herein means such agreement, instrument or
\nstatute as from time to time amended, modified or supplemented, including (in
\nthe case of agreements or instruments) by waiver or consent and (in the case of
\nstatutes) by succession of comparable successor statutes and references to all
\nattachments thereto and instruments incorporated therein. References to a person
\nare also to its permitted successors and assigns.<\/p>\n
Section 12.14. Responsibility for Obligations of Newco AG. After
\nconsummation of the Daimler-Benz Exchange Offer and until the German Effective
\nTime, Newco AG as majority shareholder of Daimler-Benz will cause Daimler-Benz
\nto comply with all of Daimler-Benz’s obligations hereunder.<\/p>\n
Section 12.15. Consent to Jurisdiction. Each of the parties hereto
\n(a) consents to submit itself to the personal jurisdiction of any federal court
\nlocated in the State of Delaware or any Delaware state court in the event any
\ndispute arises out of or relates to this Agreement or any of the transactions
\ncontemplated by this Agreement, (b) agrees that it will not attempt to deny or
\ndefeat such personal jurisdiction by motion or other request for leave from any
\nsuch court, including, without limitation, a motion to dismiss on the grounds of
\nforum non conveniens, (c) agrees that it<\/p>\n
56
\n 63
\nwill not bring any action arising out of or relating to this Agreement or any of
\nthe transactions contemplated by this Agreement in any court other than a
\nfederal court sitting in the State of Delaware or a Delaware state court, and
\n(d) waives any right to a trial by jury with respect to any claim, counterclaim
\nor action arising out of or in connection with this Agreement or the
\ntransactions contemplated hereby.<\/p>\n
57
\n 64
\n IN WITNESS HEREOF, Daimler-Benz, Chrysler and Newco AG have caused this
\nAgreement to be duly executed as of the day and year first above written.<\/p>\n
DAIMLER-BENZ AKTIENGESELLSCHAFT<\/p>\n
By:__________________________________
\n Name: Jurgen E. Schrempp
\n Title: Chairman of the Management
\n Board<\/p>\n
By:__________________________________
\n Name:
\n Title:<\/p>\n
CHRYSLER CORPORATION<\/p>\n
By:__________________________________
\n Name: Robert J. Eaton
\n Title: Chairman and Chief Executive
\n Officer<\/p>\n
By:__________________________________
\n Name:
\n Title:<\/p>\n
OPPENHEIM AKTIENGESELLSCHAFT<\/p>\n
By:__________________________________
\n Name: Johannes Maret
\n Title:<\/p>\n
By:__________________________________
\n Name:
\n Title:<\/p>\n
58
\n 65
\n EXHIBIT A<\/p>\n
ANNEX OF DEFINED TERMS<\/p>\n
1.1 “ACQUISITION AGREEMENT” shall have the meaning set forth in Section
\n9.1(b).<\/p>\n
1.2 “AFFILIATE” of any person shall mean (except as otherwise
\nspecifically defined), as to any person, any other person which, directly or
\nindirectly, controls, is controlled by, or is under common control with, such
\nperson, where “control” means the possession, directly or indirectly, of the
\npower to direct or cause the direction of the management or policies of a
\nperson, whether through the ownership of securities or partnership or other
\nownership interests, by contract or otherwise.<\/p>\n
1.3 “ADNs” shall have the meaning set forth in Section 3.8.<\/p>\n
1.4 “ADS CLOSING PRICE” shall have the meaning set forth in Section
\n2.6(a).<\/p>\n
1.5 “AGREEMENT” shall have the meaning set forth in the first
\nparagraph.<\/p>\n
1.6 “APB NO. 16” shall have the meaning set forth in Section 2.5(f).<\/p>\n
1.7 “CHRYSLER” shall mean the corporate party to the Agreement
\nidentified in the first paragraph.<\/p>\n
1.8 “CHRYSLER COMMON STOCK” shall have the meaning set forth in Section
\n2.4.<\/p>\n
1.9 “CHRYSLER EMPLOYEE OPTIONHOLDER” shall mean any person who holds a
\nChrysler Employee Stock Option.<\/p>\n
1.10 “CHRYSLER EMPLOYEE STOCK OPTION” shall mean an option to purchase
\nshares of Chrysler Common Stock granted pursuant to a Chrysler stock option plan
\nand listed on Section 5.3(b) of Chrysler’s Disclosure Schedule or subsequently
\ngranted as permitted by Article VII(b)(2).
\n 66
\n 1.11 “CHRYSLER EXCHANGE” shall mean the Chrysler Merger together with
\nthe U.S. Share Exchange.<\/p>\n
1.12 “CHRYSLER MERGER” shall mean the transaction contemplated by
\nSection 2.2.<\/p>\n
1.13 “CHRYSLER MERGER CLOSING” shall have the meaning set forth in
\nSection 2.9.<\/p>\n
1.14 “CHRYSLER MERGER CLOSING DATE” shall mean the date on which the
\nChrysler Merger Closing occurs.<\/p>\n
1.15 “CHRYSLER MERGER SUB” shall have the meaning set forth in Section
\n2.1.<\/p>\n
1.16 “CHRYSLER MERGER SUB BY-LAWS” shall have the meaning set forth in
\nSection 2.11.<\/p>\n
1.17 “CHRYSLER MERGER SUB CHARTER” shall have the meaning set forth in
\nSection 2.10.<\/p>\n
1.18 “CHRYSLER MERGER SUB COMMON STOCK” shall have the meaning set
\nforth in Section 2.1.<\/p>\n
1.19 “CHRYSLER PREFERRED STOCK” shall have the meaning set forth in
\nSection 2.7.<\/p>\n
1.20 “CHRYSLER RIGHTS AGREEMENT” shall have the meaning set forth in
\nSection 5.19(b).<\/p>\n
1.21 “CHRYSLER STOCKHOLDER APPROVAL” shall have the meaning set forth
\nin Section 5.15(a).<\/p>\n
1.22 “CHRYSLER STOCKHOLDERS MEETING” shall have the meaning set forth
\nin Section 9.2(c).<\/p>\n
1.23 “CHRYSLER STOCK ISSUANCE” shall have the meaning set forth in
\nSection 9.3.<\/p>\n
1.24 “CLOSING VALUE” shall have the meaning set forth in Section
\n2.6(a).<\/p>\n
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\n 67
\n 1.25 “CODE” shall have the meaning set forth in the sixth WHEREAS
\nclause.<\/p>\n
1.26 “COMMON SHARES TRUST” shall have the meaning set forth in Section
\n3.10(c).<\/p>\n
1.27 “COMPANY PERMITS” shall have the meaning set forth in Section 5.1.<\/p>\n
1.28 “CONFIDENTIAL INFORMATION” shall have the meaning set forth in
\nSection 9.6(b).<\/p>\n
1.29 “COSTS” shall have the meaning set forth in Section 9.8(c).<\/p>\n
1.30 “CSFB” shall mean Credit Suisse First Boston Corporation,
\nfinancial advisor to Chrysler.<\/p>\n
1.31 “DAIMLER-BENZ” shall mean the corporate party to the Agreement
\nidentified in the first paragraph.<\/p>\n
1.32 “DAIMLER-BENZ ADSs” shall have the meaning set forth in Section
\n1.1.<\/p>\n
1.33 “DAIMLER-BENZ EMPLOYEE OPTIONHOLDER” shall mean any person who
\nholds a Daimler-Benz Employee Stock Option.<\/p>\n
1.34 “DAIMLER-BENZ EMPLOYEE STOCK OPTION” shall mean a convertible
\nbond, nominal value DM 1,000, issued pursuant to the Daimler-Benz stock option
\nplans and listed on Section 5.3(b) of Daimler-Benz’s Disclosure Schedule.<\/p>\n
1.35 “DAIMLER-BENZ EXCHANGE AGENT” shall have the meaning set forth in
\nSection 1.2.<\/p>\n
1.36 “DAIMLER-BENZ EXCHANGE OFFER” shall mean the offer contemplated by
\nSection 1.1.<\/p>\n
1.37 “DAIMLER-BENZ EXCHANGE OFFER CONDITIONS” shall have the meaning
\nset forth in Section 1.1.<\/p>\n
1.38 “DAIMLER-BENZ EXCHANGE OFFER EXPIRATION DATE” shall have the
\nmeaning set forth in Section 1.1.<\/p>\n
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\n 68
\n 1.39 “DAIMLER-BENZ EXCHANGE OFFER RATIO” shall have the meaning set
\nforth in Section 1.1.<\/p>\n
1.40 “DAIMLER-BENZ MERGER” shall mean the transaction contemplated by
\nSection 3.1.<\/p>\n
1.41 “DAIMLER-BENZ MERGER CONSIDERATION” shall have the meaning set
\nforth in Section 3.3.<\/p>\n
1.42 “DAIMLER-BENZ MERGER EXCHANGE RATIO” shall have the meaning set
\nforth in Section 3.3.<\/p>\n
1.43 “DAIMLER-BENZ ORDINARY SHARES” shall have the meaning set forth in
\nSection 1.1.<\/p>\n
1.44 “DAIMLER-BENZ STOCKHOLDER APPROVAL” shall have the meaning set
\nforth in Section 5.15(b).<\/p>\n
1.45 “DAIMLER-BENZ STOCKHOLDERS MEETING” shall have the meaning set
\nforth in Section 9.2(c).<\/p>\n
1.46 “DGCL” shall mean the General Corporation Law of the State of
\nDelaware.<\/p>\n
1.47 “DISCLOSURE SCHEDULE” shall mean the disclosure schedule delivered
\nby each Representing Party to the other setting forth (organized by the number
\nand letter of the corresponding section and paragraph in the Business
\nCombination Agreement provided, that matters disclosed in any section of the
\nDisclosure Schedule shall be deemed to be disclosed for all purposes of such
\ndisclosure schedule) the Representing Party’s exceptions to the representations
\nand warranties of such Representing Party contained in Article V and to the
\ncovenants set forth in Article VII, and provided further that inclusion of an
\nitem in a disclosure schedule shall not be construed to mean that the item is
\nrequired to be disclosed or is material.<\/p>\n
1.48 “DM BES” shall have the meaning set forth in Section 3.8.<\/p>\n
1.49 “EFFECTIVE TIME” shall have the meaning set forth in Section 2.9.<\/p>\n
1.50 “80% MINIMUM” shall have the meaning set forth in Section 1.1.<\/p>\n
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\n 69
\n 1.51 “ELIGIBLE RETIREE” shall have the meaning set forth in Section
\n8.3(c).<\/p>\n
1.52 “ENCUMBRANCE” shall mean any mortgage, pledge, lien, charge,
\nencumbrance, defect, security interest, claim, option or restriction of any
\nkind.<\/p>\n
1.53 “ERISA” shall mean the Employee Retirement Income Security Act of
\n1974, as amended.<\/p>\n
1.54 “ERISA AFFILIATE” shall have the meaning set forth in Section
\n5.11(a).<\/p>\n
1.55 “EXCESS SHARES” shall have the meaning set forth in Section
\n3.10(b).<\/p>\n
1.56 “EXCHANGE ACT” shall have the meaning set forth in Section 5.6(b).<\/p>\n
1.57 “EXCHANGE OFFER DOCUMENTS” shall have the meaning set forth in
\nSection 1.4(b).<\/p>\n
1.58 “EXECUTIVE OFFICE OF THE TAKEOVER COMMISSION” shall have the
\nmeaning set forth in Section 1.1.<\/p>\n
1.59 “EXERCISE PRICE” shall have the meaning set forth in Section
\n2.6(a).<\/p>\n
1.60 “F-4 REGISTRATION STATEMENT” shall mean the Registration Statement
\non Form F-4 of Newco AG registering Newco Ordinary Shares and Newco ADSs to be
\nissued in the Chrysler Merger and the Exchange Offer.<\/p>\n
1.61 “FSE” shall have the meaning set forth in Section 9.11(a).<\/p>\n
1.62 “FULLY DILUTED BASIS” shall mean a basis that takes into account
\nall outstanding Daimler-Benz Ordinary Shares (including all outstanding
\nDaimler-Benz ADSs) and the maximum aggregate number of Daimler-Benz Ordinary
\nShares and Daimler-Benz ADSs that may be issued in respect of any warrants,
\noptions, convertible instruments or other rights pursuant to which the holder
\nthereof may acquire Daimler-Benz Ordinary Shares or Daimler-Benz ADSs,
\nregardless of whether currently exercisable or convertible. For this purpose,
\nthe number of Daimler-Benz Ordinary Shares or ADSs into which the Notes
\n(including Notes represented by ADNs and DM BESs) may be converted shall be
\ndeemed to be<\/p>\n
A-5
\n 70
\nthe higher of (i) the maximum aggregate number of Daimler-Benz Ordinary Shares
\nand Daimler-Benz ADSs into which the Notes can be converted and (ii) a number of
\nDaimler-Benz Ordinary Shares equal to 120% of the market value of the Notes on
\nthe Daimler-Benz Exchange Offer Expiration Date divided by the per share closing
\nprice of a Daimler-Benz Ordinary Share or Daimler-Benz ADS, as applicable, as
\nreported by the FSE or The Wall Street Journal, as applicable, on such date.<\/p>\n
1.63 “GERMAN EFFECTIVE TIME” shall have the meaning set forth in
\nSection 3.2.<\/p>\n
1.64 “GERMAN EXCHANGE OFFER DOCUMENTS” shall have the meaning set forth
\nin Section 1.3.<\/p>\n
1.65 “GERMAN MERGER AGREEMENT” shall have the meaning set forth in
\nSection 3.1.<\/p>\n
1.66 “GERMAN PROSPECTUS” shall have the meaning set forth in Section
\n1.3.<\/p>\n
1.67 “GERMAN SHARE EXCHANGE” shall have the meaning set forth in
\nSection 1.1.<\/p>\n
1.68 “GERMAN STOCK CORPORATION LAW (AKTIENGESETZ)” shall have the
\nmeaning set forth in Section 3.1.<\/p>\n
1.69 “GERMAN SURVIVING CORPORATION” shall have the meaning set forth in
\nSection 3.1.<\/p>\n
1.70 “GERMAN TAKEOVER CODE” shall have the meaning set forth in Section
\n1.1.<\/p>\n
1.71 “GOLDMAN SACHS” shall mean Goldman, Sachs & Co., financial advisor
\nto Daimler-Benz.<\/p>\n
1.72 “GOVERNMENTAL ENTITY” shall mean any court, tribunal or
\nadministrative, governmental or regulatory body, agency, commission, division,
\ndepartment, public body or other authority, whether federal, state, local or
\nforeign.<\/p>\n
1.73 “GSCL” shall have the meaning set forth in Section 3.1.<\/p>\n
1.74 “HSR ACT” shall mean the Hart-Scott-Rodino Antitrust Improvements
\nAct of 1976, as amended.<\/p>\n
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\n 71
\n 1.75 “INDEMNIFIED PARTY” shall have the meaning set forth in Section
\n9.8(c).<\/p>\n
1.76 “INITIAL PERIOD” shall have the meaning set forth in Section
\n8.3(a).<\/p>\n
1.77 “IRS” shall mean the United States Internal Revenue Service.<\/p>\n
1.78 “MATERIAL ADVERSE EFFECT” with respect to Daimler-Benz, Chrysler
\nor Newco AG shall mean any event or state of facts that is or would reasonably
\nbe expected to be materially adverse to the business, assets, results of
\noperations or financial condition of such Party and its Subsidiaries, taken as a
\nwhole, except for any events or states of facts relating to (i) the automotive
\nand automotive finance industry in general, and not relating specifically to the
\nbusiness of Chrysler or Daimler-Benz, as the case may be, or (ii) the economy of
\nthe United States of America, the Federal Republic of Germany or the world, in
\ngeneral, and not relating specifically to the business of Chrysler or
\nDaimler-Benz, as the case may be or in the case of Newco AG, Newco AG and its
\nSubsidiaries immediately after the Effective Time, taken as a whole.<\/p>\n
1.79 “MERGERS” shall mean the Daimler-Benz Merger and the Chrysler
\nMerger, collectively.<\/p>\n
1.80 “MINIMUM CONDITION” shall have the meaning set forth in Section
\n1.1.<\/p>\n
1.81 “NEWCO AG” shall mean the corporate party to the Agreement
\nidentified in the first paragraph.<\/p>\n
1.82 “NEWCO ADS” shall have the meaning set forth in Section 1.1. <\/p>\n
1.83 “NEWCO ORDINARY SHARES” shall have the meaning set forth in
\nSection 1.1.<\/p>\n
1.84 “NEWCO SATZUNG” shall have the meaning set forth in Section 4.1.<\/p>\n
1.85 “NOTES” shall have the meaning set forth in Section 3.8.<\/p>\n
1.86 “NYSE” shall have the meaning set forth in Section 3.10(b).<\/p>\n
A-7
\n 72
\n 1.87 “OLD CHRYSLER CERTIFICATES” shall have the meaning set forth in
\nSection 2.5(b).<\/p>\n
1.88 “OLD DAIMLER-BENZ ADRS” shall have the meaning set forth in
\nSection 3.4(a).<\/p>\n
1.89 “OPTION SHARES” shall have the meaning set forth in Section
\n2.6(a).<\/p>\n
1.90 “PBGC” shall mean the Pension Benefit Guaranty Corporation.<\/p>\n
1.91 “PERFORMANCE SHARES” shall have the meaning set forth in Section
\n2.6(b).<\/p>\n
1.92 “PERSON” shall mean an individual, corporation, partnership,
\nassociation, trust, or any other entity or organization, including, without
\nlimitation, a Governmental Entity.<\/p>\n
1.93 “PLANS” shall have the meaning set forth in Section 5.11(a).<\/p>\n
1.94 “PROXY STATEMENT\/PROSPECTUS” shall mean the proxy statement of
\nChrysler to be used in connection with the solicitation of proxies by Chrysler
\nfor the Chrysler Stockholders Meeting and the prospectus of Newco AG for the
\nNewco ADSs being issued in connection with the transactions contemplated by the
\nAgreement, which Proxy Statement\/Prospectus forms a part of the F-4 Registration
\nStatement.<\/p>\n
1.95 “REPRESENTING PARTY” shall have the meaning set forth in the first
\nparagraph of Article V.<\/p>\n
1.96 “REPRESENTING PARTY’S FILINGS” shall have the meaning set forth in
\nSection 5.6(b).<\/p>\n
1.97 “REPRESENTING PARTY’S FINANCIAL STATEMENTS” shall have the meaning
\nset forth in Section 5.6(a).<\/p>\n
1.98 “REPRESENTING PARTY’S PRE-AGREEMENT FILINGS” shall have the
\nmeaning set forth in Section 5.6(b).<\/p>\n
1.99 “RESTRAINTS” shall have the meaning set forth in Section 10.1(f).<\/p>\n
A-8
\n 73
\n 1.100 “RESTRICTED STOCK UNITS” shall have the meaning set forth in
\nSection 2.6(d).<\/p>\n
1.101 “RIGHTS” shall mean the rights to purchase new Daimler-Benz
\nOrdinary Shares distributed to holders of the Daimler-Benz Ordinary Shares
\npursuant to the Rights Offering.<\/p>\n
1.102 “RIGHTS OFFERING” shall have the meaning set forth in Section
\n2.4(c).<\/p>\n
1.103 “SCHEDULE 14D-1” shall have the meaning set forth in Section
\n1.4(a).<\/p>\n
1.104 “SCHEDULE 14D-9” shall have the meaning set forth in Section
\n1.4(b).<\/p>\n
1.105 “SEC” shall have the meaning set forth in Section 1.4(a).<\/p>\n
1.106 “SECURITIES ACT” shall have the meaning set forth in Section
\n5.6(b).<\/p>\n
1.107 “SIGNIFICANT SUBSIDIARY” shall mean have the meaning set forth in
\nRule 1.02(w) of Regulation S-X promulgated by the SEC under the Exchange Act.<\/p>\n
1.108 “SPECIAL DISTRIBUTION” shall mean the special distribution by
\nDaimler-Benz of DM 20 per Daimler-Benz Ordinary Share\/Daimler-Benz ADS as
\nproposed to the Annual General Meeting of Daimler-Benz stockholders to be held
\non May 27, 1998.<\/p>\n
1.109 “STOCK EXCHANGE ADMISSION BOARD” shall have the meaning set forth
\nin Section 9.11(a).<\/p>\n
1.110 “SUBSIDIARY” shall mean with respect to Daimler-Benz or Chrysler,
\nas the case may be, any person (i) of which fifty percent or more of either the
\nequity interests in, or the voting control of, such person is directly or
\nindirectly beneficially owned by Daimler-Benz or Chrysler, or (ii) Daimler-Benz
\nor Chrysler has the ability to elect fifty percent or more of the directors or
\nmembers of the governing board of such person, and in either such case, such
\nperson is a consolidated entity in the consolidated financial statements of such
\nRepresenting Party.<\/p>\n
1.111 “SUPERIOR PROPOSAL” shall have the meaning set forth in Section
\n9.1(b).<\/p>\n
A-9
\n 74
\n 1.112 “SURVIVING CORPORATION COMMON STOCK” shall have the meaning set
\nforth in Section 2.4(c).<\/p>\n
1.113 “TAKEOVER PROPOSAL” shall have the meaning set forth in Section
\n9.1(a).<\/p>\n
1.114 “TAXES” shall mean any and all taxes, duties, levies, imposts or
\nother governmental charges of any kind (together with any and all interest,
\npenalties, additions to tax and additional amounts imposed with respect thereto)
\nimposed by any taxing authority, including without limitation, taxes or other
\ncharges on or with respect to income, net assets, franchises, windfall or other
\nprofits, gross receipts, property, sales, use, capital stock, payroll,
\nemployment, social security, workers’ compensation, unemployment compensation,
\nor net worth, and taxes or other charges in the nature of excise, withholding,
\nad valorem or value added.<\/p>\n
1.115 “TAX RETURNS” shall mean any return, report or similar statement
\nrequired to be filed with respect to any Taxes, including, without limitation,
\nany information return, claim for refund, amended return or declaration of
\nestimated Taxes.<\/p>\n
1.116 “U.S. EXCHANGE AGENT” shall have the meaning set forth in Section
\n2.1.<\/p>\n
1.117 “U.S. EXCHANGE FUND” shall have the meaning set forth in Section
\n2.5(a).<\/p>\n
1.118 “U.S. EXCHANGE OFFER DOCUMENTS” shall have the meaning set forth
\nin Section 1.4(b).<\/p>\n
1.119 “U.S. EXCHANGE RATIO” shall have the meaning set forth in Section
\n2.4(b).<\/p>\n
1.120 “US GAAP” shall have the meaning set forth in the eighth WHEREAS
\nclause.<\/p>\n
1.121 “U.S. MERGER CONSIDERATION” shall have the meaning set forth in
\nSection 2.4(b).<\/p>\n
1.122 “U.S. PERSON” shall mean (i) a citizen or resident of the United
\nStates, (ii) a corporation, partnership or other entity created or organized in
\nor under the laws of the United States or any political subdivision thereof,
\n(iii) an estate whose income is subject to United States Federal Income taxation
\nregardless<\/p>\n
A-10
\n 75
\nof its source or (iv) a trust if (a) a court within the United States is able to
\nexercise primary supervision over the administration of the trust and (b) one or
\nmore U.S. Persons have the authority to control all substantial decisions of the
\ntrust.<\/p>\n
1.123 “U.S. SHARE EXCHANGE” shall have the meaning set forth in Section
\n2.3.<\/p>\n
1.124 “U.S. SURVIVING CORPORATION” shall have the meaning set forth in
\nSection 2.2.<\/p>\n
1.125 “WARRANTS” shall mean the warrants issued by Daimler-Benz in
\nconnection with the 4 1\/8% Deutsche Mark Bearer Notes of 1996\/2003 issued by
\nDaimler-Benz Capital (Luxembourg) AG.<\/p>\n
A-11
\n 76
\n EXHIBIT B-1<\/p>\n
FORM OF AFFILIATE LETTER FOR AFFILIATES OF
\n CHRYSLER CORPORATION<\/p>\n
Chrysler Corporation
\n1000 Chrysler Drive
\nAuburn Hills, Michigan 48326<\/p>\n
Daimler-Benz Aktiengesellschaft
\n225 Epplestrasse
\n70567 Stuttgart
\nGermany<\/p>\n
Oppenheim Aktiengesellschaft
\nUnter Sachsenhausen 4
\n50667 Koln
\nGermany<\/p>\n
Ladies and Gentlemen:<\/p>\n
I have been advised that as of the date of this letter I may be
\ndeemed to be an “affiliate” of Chrysler Corporation, a Delaware corporation
\n(“Chrysler”), as the term “affiliate” is (i) defined for purposes of paragraphs
\n(c) and (d) of Rule 145 of the rules and regulations (the “Rules and
\nRegulations”) of the Securities and Exchange Commission (the “Commission”) under
\nthe Securities Act of 1933, as amended (the “Act”), and\/or (ii) used in and for
\npurposes of Accounting Series Releases No. 130 and No. 135, as amended, of the
\nCommission. Pursuant to the terms of the Business Combination Agreement, dated
\nas of May 7, 1998 (the “Business Combination Agreement”), among Daimler-Benz
\nAktiengesellschaft, an Aktiengesellschaft organized and existing under the laws
\nof the Federal Republic of Germany (“Daimler-Benz”), Chrysler, and Oppenheim
\nAktiengesellschaft, an Aktiengesellschaft organized and existing under the laws
\nof the Federal Republic of Germany (“Newco AG”), pursuant to which (i) Newco AG
\nwill exchange one ordinary share of no par value of Newco AG (the “Newco
\nOrdinary Shares”) or one Newco American Depositary Share representing
\n 77
\none Newco Ordinary Share (the “Newco ADSs”) for each outstanding ordinary share
\nof DM 5 nominal value of Daimler-Benz or the corresponding no par value share,
\nas the case may be (the “Daimler-Benz Ordinary Shares”) or Daimler-Benz American
\nDepositary Share representing one Daimler-Benz Ordinary Share (the “Daimler-Benz
\nADSs”) tendered pursuant to an exchange offer being made by Newco to all holders
\nof Daimler-Benz Ordinary Shares and Daimler-Benz ADSs (the “Exchange Offer”),
\n(ii) simultaneously with the closing of the Exchange Offer, Chrysler Merger Sub,
\na Delaware corporation, will merge with and into Chrysler (the “Chrysler
\nMerger”) whereby the Chrysler stockholders will have the right to receive Newco
\nADSs in exchange for their shares of common stock, par value $1.00 per share, of
\nChrysler (the “Chrysler Common Stock”), and (iii) following the Exchange Offer,
\nDaimler-Benz will merge with and into Newco and all remaining outstanding
\nDaimler-Benz Ordinary Shares and Daimler-Benz ADSs will be converted into Newco
\nOrdinary Shares or Newco ADSs, as the case may be, and (iv) stockholders of each
\nof Chrysler and Daimler-Benz will become stockholders of Newco. Capitalized
\nterms used in this letter without definition shall have the meanings assigned to
\nthem in the Business Combination Agreement.<\/p>\n
As a result of the Chrysler Merger, I may receive Newco ADSs. I
\nwould receive such Newco ADSs in exchange for shares (or upon exercise of
\noptions for shares) owned by me of Chrysler Common Stock.<\/p>\n
1. I hereby represent, warrant and covenant to Newco, Chrysler and
\nDaimler-Benz that in the event I receive any Newco ADSs as a result of the
\nChrysler Merger:<\/p>\n
A. I shall not make any offer, sale, pledge, transfer or other
\n disposition of the Newco ADSs in violation of the Act or the Rules and
\n Regulations.<\/p>\n
B. I have carefully read this letter and the Business Combination
\n Agreement and discussed the requirements of such documents and other
\n applicable limitations upon my ability to sell, transfer or otherwise
\n dispose of the Newco ADSs, to the extent I felt necessary, with my counsel
\n or counsel for Chrysler.<\/p>\n
C. I have been advised that the issuance of the Newco ADSs to me
\n pursuant to the Chrysler Merger has been registered with the Commission
\n under the Act on a Registration Statement on Form F-4. However, I have
\n also been advised that, because at the time the Chrysler Merger is
\n submitted for a vote of the stockholders of Chrysler, (a) I may be deemed
\n to be an affiliate of Chrysler<\/p>\n
B-1-2
\n 78
\n and (b) the distribution by me of the Newco ADSs has not been registered
\n under the Act, I may not sell, transfer or otherwise dispose of the Newco
\n ADSs issued to me in the Chrysler Merger unless (i) such sale, transfer or
\n other disposition is made in conformity with the volume and other
\n limitations of Rule 145 promulgated by the Commission under the Act, (ii)
\n such sale, transfer or other disposition has been registered under the
\n Act, or (iii) in the opinion of counsel reasonably acceptable to Newco, or
\n a “no action” letter obtained by the undersigned from the staff of the
\n Commission such sale, transfer or other disposition is otherwise exempt
\n from registration under the Act.<\/p>\n
D. I understand that except as provided for in the Business
\n Combination Agreement, Newco is under no obligation to register the sale,
\n transfer or other disposition of the Newco ADSs by me or on my behalf
\n under the Act or, except as provided in paragraph 2 below, to take any
\n other action necessary in order to make compliance with an exemption from
\n such registration available.<\/p>\n
E. I further represent to, and covenant with, Newco, Daimler-Benz
\n and Chrysler that I will not, during the 30 days prior to the Effective
\n Time, sell, transfer or otherwise dispose of or reduce my risk (as
\n contemplated by the SEC Accounting Series Release No. 135) with respect to
\n shares of Chrysler Common Stock that I may hold and, furthermore, that I
\n will not sell, transfer or otherwise dispose of or reduce my risk (as
\n contemplated by SEC Accounting Series Release No. 135) with respect to
\n the Newco ADSs received by me in the Chrysler Merger or any other shares
\n of the capital stock of Newco until after such time as results covering at
\n least 30 days of operations of Newco have been published by Newco, in the
\n form of a quarterly earnings report, an effective registration statement
\n filed with the Commission, a report to the Commission on Form 20-F or 6-K,
\n or any other public filing or announcement which includes the combined
\n results of operations of Chrysler and Daimler-Benz (the period commencing
\n 30 days prior to the Effective Time and ending on the date of the
\n publication of the post-Chrysler Merger financial results is referred to
\n herein as the “Pooling Period”). Newco shall notify the “affiliates” of
\n the publication of such results. Notwithstanding the foregoing, I
\n understand that during the aforementioned period, subject to providing
\n written notice to Newco, I will not be prohibited from selling up to 10%
\n of the Newco ADSs (the “10% Shares”) received by me or the shares of
\n Chrysler Common Stock owned by me or making charitable contributions or
\n bona fide gifts of the Newco ADSs received by me or the shares of Chrysler
\n Common Stock owned by me, subject to the same restrictions. The 10% Shares
\n shall be calculated in accordance with SEC Accounting Series Release No.
\n 135 as amended by Staff Accounting Bulletin<\/p>\n
B-1-3
\n 79
\n No. 76. I covenant with Newco that I will not sell, transfer or otherwise
\n dispose of any 10% Shares during the period commencing on the Effective
\n Time and ending on the last day of the Pooling Period except in compliance
\n with Rule 145(d)(i) under the Act or pursuant to charitable contributions
\n or bona fide gifts.<\/p>\n
F. Execution of this letter should not be considered an admission on
\n my part that I am an “affiliate” of Chrysler as described in the first
\n paragraph of this letter, or as a waiver of any rights I may have to
\n object to any claim that I am such an affiliate on or after the date of
\n this letter.<\/p>\n
2. By Newco AG’s acceptance of this letter, Newco AG hereby agrees
\nwith me that for so long as and to the extent necessary to permit me to sell the
\nNewco ADSs pursuant to Rule 145 and, to the extent applicable, Rule 144 under
\nthe Act, Newco AG shall (a) use its reasonable best efforts (i) to file, on a
\ntimely basis, all reports and data required to be filed with the Commission by
\nit pursuant to Section 13 of the Securities Exchange Act of 1934, as amended,
\nand (ii) to furnish me upon request a written statement as to whether Newco AG
\nhas complied with such reporting requirements during the 12 months preceding any
\nproposed sale of the Newco ADSs by me under Rule 145, and (b) otherwise use its
\nreasonable efforts to permit such sales pursuant to Rule 145 and Rule 144.<\/p>\n
Very truly yours,<\/p>\n
_____________________________________
\n Name:<\/p>\n
B-1-4
\n 80
\nAgreed and accepted this __ day
\nof ___________, 1998, by<\/p>\n
DAIMLER-BENZ AKTIENGESELLSCHAFT<\/p>\n
By:__________________________________
\n Name:
\n Title:<\/p>\n
By:__________________________________
\n Name:
\n Title:<\/p>\n
CHRYSLER CORPORATION<\/p>\n
By:__________________________________
\n Name:
\n Title:<\/p>\n
OPPENHEIM AKTIENGESELLSCHAFT<\/p>\n
By: _________________________________
\n Name:
\n Title:<\/p>\n
By:__________________________________
\n Name:
\n Title:<\/p>\n
B-1-5
\n 81
\n EXHIBIT B-2<\/p>\n
FORM OF AFFILIATE LETTER FOR AFFILIATES OF
\n DAIMLER-BENZ AKTIENGESELLSCHAFT<\/p>\n
Chrysler Corporation
\n1000 Chrysler Drive
\nAuburn Hills, Michigan 48326<\/p>\n
Daimler-Benz Aktiengesellschaft
\n225 Epplestrasse
\n70567 Stuttgart
\nGermany<\/p>\n
Oppenheim Aktiengesellschaft
\nUnter Sachsenhausen
\n50667 Koln
\nGermany<\/p>\n
Ladies and Gentlemen:<\/p>\n
I have been advised that as of the date of this letter I may be
\ndeemed to be an “affiliate” of Daimler-Benz Aktiengesellschaft, an
\nAktiengesellschaft organized and existing under the laws of the Federal Republic
\nof Germany (“Daimler-Benz”), as the term “affiliate” is (i) defined for purposes
\nof paragraphs (c) and (d) of Rule 145 of the rules and regulations (the “Rules
\nand Regulations”) of the Securities and Exchange Commission (the “Commission”)
\nunder the Securities Act of 1933, as amended (the “Act”), and\/or (ii) used in
\nand for purposes of Accounting Series Releases No. 130 and No. 135, as amended,
\nof the Commission. Pursuant to the terms of the Business Combination Agreement,
\ndated as of May 7, 1998 (the “Business Combination Agreement”), among
\nDaimler-Benz, Chrysler Corporation, a Delaware corporation (“Chrysler”), and
\nOppenheim Aktiengesellschaft, an Aktiengesellschaft organized and existing under
\nthe laws of the Federal Republic of Germany (“Newco AG”), pursuant to which (i)
\nNewco AG will exchange one ordinary share of no par value of Newco AG (the
\n“Newco Ordinary Shares”) or one Newco American Depositary Share representing one
\nNewco Ordinary Share (the “Newco ADSs”), for each outstanding ordinary share of
\nDM 5 nominal value of Daimler-Benz or the corresponding no par value share, as
\nthe case may be (the “Daimler-Benz Ordinary Shares”) or Daimler-Benz American
\n 82
\nDepositary Share representing one Daimler-Benz Ordinary Share (the “Daimler-Benz
\nADSs”) tendered pursuant to an exchange offer being made by Newco AG to all
\nholders of Daimler-Benz Ordinary Shares and Daimler-Benz ADSs (the “Exchange
\nOffer”), (ii) simultaneously with the closing of the Exchange Offer, Chrysler
\nMerger Sub, a Delaware corporation, will merge, with and into Chrysler whereby
\nthe Chrysler stockholders will have the right to receive Newco ADSs in exchange
\nfor their shares of common stock, par value $1.00 per share, of Chrysler, and
\n(iii) following the Exchange Offer, Daimler-Benz will merge with and into Newco
\nAG (the “Daimler-Benz Merger”) and all remaining outstanding Daimler-Benz
\nOrdinary Shares and Daimler-Benz ADSs will be converted into Newco Ordinary
\nShares or Newco ADSs, as the case may be, and (iv) stockholders of each of
\nChrysler and Daimler-Benz will become stockholders of Newco AG. Capitalized
\nterms used in this letter without definition shall have the meanings assigned to
\nthem in the Business Combination Agreement.<\/p>\n
As a result of the Exchange Offer and\/or the Daimler-Benz Merger, I
\nmay receive Newco Ordinary Shares. I would receive such Newco Ordinary Shares in
\nexchange for Daimler-Benz Ordinary Shares owned by me.<\/p>\n
1. I hereby represent, warrant and covenant to Newco AG, Chrysler
\nand Daimler-Benz that in the event I receive any Newco Ordinary Shares as a
\nresult of the Exchange Offer and\/or the Daimler-Benz Merger:<\/p>\n
A. I shall not make any offer, sale, pledge, transfer or other
\n disposition of Newco Ordinary Shares in violation of the Act or the Rules
\n and Regulations.<\/p>\n
B. I have carefully read this letter and the Business Combination
\n Agreement and discussed the requirements of such documents and other
\n applicable limitations upon my ability to sell, transfer or otherwise
\n dispose of Newco Ordinary Shares, to the extent I felt necessary, with my
\n counsel or counsel for Daimler-Benz.<\/p>\n
C. I have been advised that the issuance of the Newco Ordinary
\n Shares to me pursuant to the Exchange Offer or the Daimler-Benz Merger has
\n been registered with the Commission under the Act on a Registration
\n Statement on Form F-4. However, I have also been advised that, because at
\n the time the Exchange Offer and Daimler-Benz Merger are submitted for a
\n vote of the stockholders of Daimler-Benz, (a) I may be deemed to be an
\n affiliate of Daimler-Benz and (b) the distribution by me of the Newco
\n Ordinary Shares has not been registered under the Act, I may not sell,
\n transfer or otherwise dispose of the Newco Ordinary Shares issued to me in
\n the Exchange Offer or the Daimler-Benz Merger unless (i) such sale,
\n transfer or other disposition is made in conformity<\/p>\n
B-2-2
\n 83
\n with the volume and other limitations of Rule 145 promulgated by the
\n Commission under the Act, (ii) such sale, transfer or other disposition
\n has been registered under the Act, or (iii) in the opinion of counsel
\n reasonably acceptable to Newco AG, or a “no action” letter obtained by the
\n undersigned from the staff of the Commission such sale, transfer or other
\n disposition is otherwise exempt from registration under the Act.<\/p>\n
D. I understand that except as provided for in the Business
\n Combination Agreement, Newco AG is under no obligation to register the
\n sale, transfer or other disposition of the Newco Ordinary Shares by me or
\n on my behalf under the Act or, except as provided in paragraph 2 below, to
\n take any other action necessary in order to make compliance with an
\n exemption from such registration available.<\/p>\n
E. I further represent to, and covenant with, Newco AG, Daimler-Benz
\n and Chrysler that I will not, during the 30 days prior to the Effective
\n Time, sell, transfer or otherwise dispose of or reduce my risk (as
\n contemplated by the SEC Accounting Series Release No. 135) with respect to
\n Daimler-Benz Ordinary Shares and Daimler-Benz ADSs that I may hold and,
\n furthermore, that I will not sell, transfer or otherwise dispose of or
\n reduce my risk (as contemplated by SEC Accounting Series Release No. 135)
\n with respect to the Newco Ordinary Shares received by me in the Exchange
\n Offer and\/or the Daimler-Benz Merger or any other shares of capital stock
\n of Newco AG until after such time as results covering at least 30 days of
\n operations of Newco AG have been published by Newco AG, in the form of a
\n quarterly earnings report, an effective registration statement filed with
\n the Commission, a report to the Commission on Form 20-F or 6-K, or any
\n other public filing or announcement which includes the combined results of
\n operations of Chrysler and Daimler-Benz (the period commencing 30 days
\n prior to the Effective Time and ending on the date of the publication of
\n the post-Chrysler Merger financial results is referred to herein as the
\n “Pooling Period”). Newco AG shall notify the “affiliates” of the
\n publication of such results. Notwithstanding the foregoing, I understand
\n that during the aforementioned period, subject to providing written notice
\n to Newco AG, I will not be prohibited from selling up to 10% of the Newco
\n Ordinary Shares (the “10% Shares”) received by me or the Daimler-Benz
\n Ordinary Shares owned by me or making charitable contributions or bona
\n fide gifts of the Newco Ordinary Shares received by me or the Daimler-Benz
\n Ordinary Shares owned by me, subject to the same restrictions. The 10%
\n Shares shall be calculated in accordance with SEC Accounting Series
\n Release No. 135 as amended by Staff Accounting Bulletin No. 76. I covenant
\n with Newco AG that I will not sell, transfer or otherwise dispose of any
\n 10% Shares during the period commencing on the Effective Time<\/p>\n
B-2-3
\n 84
\n and ending on the last day of the Pooling Period except in compliance with
\n Rule 145(d)(i) under the Act or pursuant to charitable contributions or
\n bona fide gifts.<\/p>\n
F. Execution of this letter should not be considered an admission on
\n my part that I am an “affiliate” of Daimler-Benz as described in the first
\n paragraph of this letter, or as a waiver of any rights I may have to
\n object to any claim that I am such an affiliate on or after the date of
\n this letter.<\/p>\n
2. By Newco AG’s acceptance of this letter, Newco AG hereby agrees
\nwith me that for so long as and to the extent necessary to permit me to sell the
\nNewco Ordinary Shares pursuant to Rule 145 and, to the extent applicable, Rule
\n144 under the Act, Newco AG shall (a) use its reasonable best efforts (i) to
\nfile, on a timely basis, all reports and data required to be filed with the
\nCommission by it pursuant to Section 13 of the Securities Exchange Act of 1934,
\nas amended, and (ii) to furnish me upon request a written statement as to
\nwhether Newco has complied with such reporting requirements during the 12 months
\npreceding any proposed sale of the Newco Ordinary Shares by me under Rule 145,
\nand (b) otherwise use its reasonable efforts to permit such sales pursuant to
\nRule 145 and Rule 144.<\/p>\n
Very truly yours,<\/p>\n
___________________________________
\n Name:<\/p>\n
B-2-4
\n 85
\nAgreed and accepted this __ day
\nof ___________, 1998, by<\/p>\n
DAIMLER-BENZ AKTIENGESELLSCHAFT<\/p>\n
By:______________________________
\n Name:
\n Title:<\/p>\n
By:______________________________
\n Name:
\n Title:<\/p>\n
CHRYSLER CORPORATION<\/p>\n
By:______________________________
\n Name:
\n Title:<\/p>\n
OPPENHEIM AKTIENGESELLSCHAFT<\/p>\n
By:______________________________
\n Name:
\n Title:<\/p>\n
By:______________________________
\n Name:
\n Title:<\/p>\n
B-2-5<\/p>\n
86
\n EXHIBIT C<\/p>\n
FORM OF<\/p>\n
AMENDED AND RESTATED<\/p>\n
CERTIFICATE OF INCORPORATION<\/p>\n
OF<\/p>\n
CHRYSLER MERGER SUB<\/p>\n
The undersigned, [Officer], certifies that he is the [Title] of
\nChrysler Merger Sub, a corporation organized and existing under the laws of the
\nState of Delaware (the “Corporation”), and does hereby further certify as
\nfollows:<\/p>\n
(a) The name of the Corporation is Chrysler Merger Sub.<\/p>\n
(b) The name under which the Corporation was originally
\n incorporated was Chrysler Merger Sub and the original
\n Certificate of Incorporation of the Corporation was
\n filed with the Secretary of State of the State of
\n Delaware on May , 1998.<\/p>\n
(c) This Amended and Restated Certificate of
\n Incorporation was duly adopted in accordance with the
\n provisions of Sections 242 and 245 of the General
\n Corporation Law of the State of Delaware.<\/p>\n
(d) The text of the Certificate of Incorporation of the
\n Corporation as amended hereby is restated to read in
\n its entirety, as follows:<\/p>\n
FIRST: The name of the Corporation is Chrysler Corporation
\n(hereinafter, the “Corporation”).<\/p>\n
SECOND: The address of the registered office of the Corporation in the
\nState of Delaware is 1209 Orange Street, in the City of Wilmington, County of
\nNew Castle. The name of its registered agent at that address is The Corporation
\nTrust Company.
\n 87
\n THIRD: The purpose of the Corporation is to engage in any lawful act or
\nactivity for which a corporation may be organized under the General Corporation
\nLaw of the State of Delaware as set forth in Title 8 of the Delaware Code (the
\n“GCL”).<\/p>\n
FOURTH: The total number of shares of stock which the Corporation shall
\nhave authority to issue is 1,000 shares of Common Stock, each having a par value
\nof one penny ($.01).<\/p>\n
FIFTH: The name and mailing address of the Sole Incorporator is as
\nfollows:<\/p>\n
Name Address<\/p>\n
[ ] [ ]
\n [ ]<\/p>\n
SIXTH: The following provisions are inserted for the management of the
\nbusiness and the conduct of the affairs of the Corporation, and for further
\ndefinition, limitation and regulation of the powers of the Corporation and of
\nits directors and stockholders:<\/p>\n
(1) The business and affairs of the Corporation shall be
\n managed by or under the direction of the Board of Directors.<\/p>\n
(2) The directors shall have concurrent power with the
\n stockholders to make, alter, amend, change, add to or repeal the
\n By-Laws of the Corporation.<\/p>\n
(3) The number of directors of the Corporation shall be as
\n from time to time fixed by, or in the manner provided in, the By-Laws
\n of the Corporation. Election of directors need not be by written ballot
\n unless the By-Laws so provide.<\/p>\n
(4) No director shall be personally liable to the Corporation
\n or any of its stockholders for monetary damages for breach of fiduciary
\n duty as a director, except for liability (i) for any breach of the
\n director’s duty of loyalty to the Corporation or its stockholders, (ii)
\n for acts or omissions not in good faith or which involve intentional
\n misconduct or a knowing violation of law, (iii) pursuant to Section 174
\n of the GCL, or<\/p>\n
C-2
\n 88
\n (iv) for any transaction from which the director derived an improper
\n personal benefit. Any repeal or modification of this Article SIXTH by
\n the stockholders of the Corporation shall not adversely affect any
\n right or protection of a director of the Corporation existing at the
\n time of such repeal or modification with respect to acts or omissions
\n occurring prior to such repeal or modification.<\/p>\n
(5) In addition to the powers and authority hereinbefore or by
\n statute expressly conferred upon them, the directors are hereby
\n empowered to exercise all such powers and do all such acts and things
\n as may be exercised or done by the Corporation, subject, nevertheless,
\n to the provisions of the GCL, this Certificate of Incorporation, and
\n any By-Laws adopted by the stockholders; provided, however, that no
\n By-Laws hereafter adopted by the stockholders shall invalidate any
\n prior act of the directors which would have been valid if such By-Laws
\n had not been adopted.<\/p>\n
SEVENTH: The Corporation shall indemnify its directors and officers to
\nthe fullest extent authorized or permitted by law, as now or hereafter in
\neffect, and such right to indemnification shall continue as to a person who has
\nceased to be a director or officer of the Corporation and shall inure to the
\nbenefit of his or her heirs, executors and personal and legal representatives;
\nprovided, however, that, except for proceedings to enforce rights to
\nindemnification, the Corporation shall not be obligated to indemnify any
\ndirector or officer (or his or her heirs, executors or personal or legal
\nrepresentatives) in connection with a proceeding (or part thereof) initiated by
\nsuch person unless such proceeding (or part thereof) was authorized or consented
\nto by the Board of Directors. The right to indemnification conferred by this
\nArticle SEVENTH shall include the right to be paid by the Corporation the
\nexpenses incurred in defending or otherwise participating in any proceeding in
\nadvance of its final disposition.<\/p>\n
The Corporation may, to the extent authorized from time to time by the
\nBoard of Directors, provide rights to indemnification and to the advancement of
\nexpenses to employees and agents of the Corporation similar to those conferred
\nin this Article SEVENTH to directors and officers of the Corporation.<\/p>\n
The rights to indemnification and to the advance of expenses conferred
\nin this Article SEVENTH shall not be exclusive of any other right which any
\nperson may have or hereafter acquire under the Certificate of Incorporation or
\nthe By-Laws of the Corporation, any statute, agreement, vote of stockholders or
\ndisinterested directors or otherwise.<\/p>\n
C-3
\n 89
\n Any repeal or modification of this Article SEVENTH by the stockholders
\nof the Corporation shall not adversely affect any rights to indemnification and
\nto the advancement of expenses of a director or officer of the Corporation
\nexisting at the time of such repeal or modification with respect to any acts or
\nomissions occurring prior to such repeal or modification.<\/p>\n
EIGHTH: Meetings of stockholders may be held within or without the
\nState of Delaware, as the By-Laws may provide. The books of the Corporation may
\nbe kept (subject to any provision contained in the GCL) outside the State of
\nDelaware at such place or places as may be designated from time to time by the
\nBoard of Directors or in the By-Laws of the Corporation.<\/p>\n
NINTH: The Corporation reserves the right to amend, alter, change or
\nrepeal any provision contained in this Amended and Restated Certificate of
\nIncorporation, in the manner now or hereafter prescribed by statute, and all
\nrights conferred upon stockholders herein are granted subject to this
\nreservation.<\/p>\n
IN WITNESS WHEREOF, Chrysler Merger Sub has caused this Certificate to
\nbe duly executed in its corporate name this day of , 1998.<\/p>\n
CHRYSLER MERGER SUB<\/p>\n
By:________________________
\n Name:
\n Title:<\/p>\n
C-4
\n 90
\n EXHIBIT D<\/p>\n
FORM OF<\/p>\n
BY-LAWS<\/p>\n
OF<\/p>\n
CHRYSLER MERGER SUB<\/p>\n
(hereinafter called the “Corporation”)<\/p>\n
ARTICLE I<\/p>\n
OFFICES<\/p>\n
Section 1. Registered Office. The registered office of the Corporation
\nshall be in the City of Wilmington, County of New Castle, State of Delaware.<\/p>\n
Section 2. Other Offices. The Corporation may also have offices at such
\nother places both within and without the State of Delaware as the Board of
\nDirectors may from time to time determine.<\/p>\n
ARTICLE II<\/p>\n
MEETINGS OF STOCKHOLDERS<\/p>\n
Section 1. Place of Meetings. Meetings of the stockholders for the
\nelection of directors or for any other purpose shall be held at such time and
\nplace, either within or without the State of Delaware as shall be designated
\nfrom time to time by the Board of Directors.<\/p>\n
Section 2. Annual Meetings. The Annual Meetings of Stockholders for the
\nelection of directors shall be held on such date and at such time as shall be
\ndesignated from time to time by the Board of Directors. Any other proper
\nbusiness may be transacted at the Annual Meeting of Stockholders.<\/p>\n
Section 3. Special Meetings. Unless otherwise required by law or by the
\ncertificate of incorporation of the Corporation, as amended and restated from
\ntime to time (the “Certificate of Incorporation”), Special Meetings of
\nStockholders, for any purpose or purposes, may be called by either (i) the
\nChairman, if there be one, or (ii) the
\n 91
\nPresident, (iii) any Vice President, if there be one, (iv) the Secretary or (v)
\nany Assistant Secretary, if there be one, and shall be called by any such
\nofficer at the request in writing of (i) the Board of Directors, (ii) a
\ncommittee of the Board of Directors that has been duly designated by the Board
\nof Directors and whose powers and authority include the power to call such
\nmeetings or (iii) stockholders owning a majority of the capital stock of the
\nCorporation issued and outstanding and entitled to vote. Such request shall
\nstate the purpose or purposes of the proposed meeting. At a Special Meeting of
\nStockholders, only such business shall be conducted as shall be specified in the
\nnotice of meeting (or any supplement thereto).<\/p>\n
Section 4. Notice. Whenever stockholders are required or permitted to
\ntake any action at a meeting, a written notice of the meeting shall be given
\nwhich shall state the place, date and hour of the meeting, and, in the case of a
\nspecial meeting, the purpose or purposes for which the meeting is called. Unless
\notherwise required by law, the written notice of any meeting shall be given not
\nless than ten nor more than sixty days before the date of the meeting to each
\nstockholder entitled to vote at such meeting.<\/p>\n
Section 5. Adjournments. Any meeting of the stockholders may be
\nadjourned from time to time to reconvene at the same or some other place, and
\nnotice need not be given of any such adjourned meeting if the time and place
\nthereof are announced at the meeting at which the adjournment is taken. At the
\nadjourned meeting, the Corporation may transact any business which might have
\nbeen transacted at the original meeting. If the adjournment is for more than
\nthirty days, or if after the adjournment a new record date is fixed for the
\nadjourned meeting, notice of the adjourned meeting shall be given to each
\nstockholder of record entitled to vote at the meeting.<\/p>\n
Section 6. Quorum. Unless otherwise required by law or the Certificate
\nof Incorporation, the holders of a majority of the capital stock issued and
\noutstanding and entitled to vote thereat, present in person or represented by
\nproxy, shall constitute a quorum at all meetings of the stockholders for the
\ntransaction of business. A quorum, once established, shall not be broken by the
\nwithdrawal of enough votes to leave less than a quorum. If, however, such quorum
\nshall not be present or represented at any meeting of the stockholders, the
\nstockholders entitled to vote thereat, present in person or represented by
\nproxy, shall have power to adjourn the meeting from time to time, in the manner
\nprovided in Section 5, until a quorum shall be present or represented.<\/p>\n
Section 7. Voting. Unless otherwise required by law, the Certificate of
\nIncorporation or these By-laws, any question brought before any meeting of
\nstockholders, other than the election of directors, shall be decided by the
\nvote of the holders of a majority of the total number of votes of the capital
\nstock represented and entitled<\/p>\n
D-2
\n 92
\nto vote thereat, voting as a single class. Unless otherwise provided in the
\nCertificate of Incorporation, and subject to Section 5 of Article V hereof,
\neach stockholder represented at a meeting of stockholders shall be entitled to
\ncast one vote for each share of the capital stock entitled to vote thereat held
\nby such stockholder. Such votes may be cast in person or by proxy but no proxy
\nshall be voted on or after three years from its date, unless such proxy provides
\nfor a longer period. The Board of Directors, in its discretion, or the officer
\nof the Corporation presiding at a meeting of stockholders, in such officer’s
\ndiscretion, may require that any votes cast at such meeting shall be cast by
\nwritten ballot.<\/p>\n
Section 8. Consent of Stockholders in Lieu of Meeting. Unless otherwise
\nprovided in the Certificate of Incorporation, any action required or permitted
\nto be taken at any Annual or Special Meeting of Stockholders of the Corporation
\nmay be taken without a meeting, without prior notice and without a vote, if a
\nconsent or consents in writing, setting forth the action so taken, shall be
\nsigned by the holders of outstanding stock having not less than the minimum
\nnumber of votes that would be necessary to authorize or take such action at a
\nmeeting at which all shares entitled to vote thereon were present and voted and
\nshall be delivered to the Corporation by delivery to its registered office in
\nthe State of Delaware, its principal place of business, or an officer or agent
\nof the corporation having custody of the book in which proceedings of meetings
\nof stockholders are recorded. Delivery made to the Corporation’s registered
\noffice shall be by hand or by certified or registered mail, return receipt
\nrequested. Every written consent shall bear the date of signature of each
\nstockholder who signs the consent and no written consent shall be effective to
\ntake the corporate action referred to therein unless, within sixty days of the
\nearliest dated consent delivered in the manner required by this Section 8 to the
\nCorporation, written consents signed by a sufficient number of holders to take
\naction are delivered to the Corporation by delivery to its registered office in
\nthe State of Delaware, its principal place of business, or an officer or agent
\nof the Corporation having custody of the book in which proceedings of meetings
\nof stockholders are recorded. Prompt notice of the taking of the corporate
\naction without a meeting by less than unanimous written consent shall be given
\nto those stockholders who have not consented in writing and who, if the action
\nhad been taken at a meeting, would have been entitled to notice of the meeting
\nif the record date for such meeting had been the date that written consents
\nsigned by a sufficient number of holders to take the action were delivered to
\nthe Corporation as provided above in this section.<\/p>\n
Section 9. List of Stockholders Entitled to Vote. The officer of the
\nCorporation who has charge of the stock ledger of the Corporation shall prepare
\nand make, at least ten days before every meeting of stockholders, a complete
\nlist of the stockholders entitled to vote at the meeting, arranged in
\nalphabetical order, and showing<\/p>\n
D-3
\n 93
\nthe address of each stockholder and the number of shares registered in the name
\nof each stockholder. Such list shall be open to the examination of any
\nstockholder, for any purpose germane to the meeting, during ordinary business
\nhours, for a period of at least ten days prior to the meeting either at a place
\nwithin the city where the meeting is to be held, which place shall be specified
\nin the notice of the meeting, or, if not so specified, at the place where the
\nmeeting is to be held. The list shall also be produced and kept at the time and
\nplace of the meeting during the whole time thereof, and may be inspected by any
\nstockholder of the Corporation who is present.<\/p>\n
Section 10. Stock Ledger. The stock ledger of the Corporation shall be
\nthe only evidence as to who are the stockholders entitled to examine the stock
\nledger, the list required by Section 9 of this Article II or the books of the
\nCorporation, or to vote in person or by proxy at any meeting of stockholders.<\/p>\n
Section 11. Conduct of Meetings. The Board of Directors of the
\nCorporation may adopt by resolution such rules and regulations for the conduct
\nof the meeting of the stockholders as it shall deem appropriate. Except to the
\nextent inconsistent with such rules and regulations as adopted by the Board of
\nDirectors, the chairman of any meeting of the stockholders shall have the right
\nand authority to prescribe such rules, regulations and procedures and to do all
\nsuch acts as, in the judgment of such chairman, are appropriate for the proper
\nconduct of the meeting. Such rules, regulations or procedures, whether adopted
\nby the Board of Directors or prescribed by the chairman of the meeting, may
\ninclude, without limitation, the following: (i) the establishment of an agenda
\nor order of business for the meeting; (ii) the determination of when the polls
\nshall open and close for any given matter to be voted on at the meeting; (iii)
\nrules and procedures for maintaining order at the meeting and the safety of
\nthose present; (iv) limitations on attendance at or participation in the meeting
\nto stockholders of record of the corporation, their duly authorized and
\nconstituted proxies or such other persons as the chairman of the meeting shall
\ndetermine; (v) restrictions on entry to the meeting after the time fixed for the
\ncommencement thereof; and (vi) limitations on the time allotted to questions or
\ncomments by participants.<\/p>\n
ARTICLE III<\/p>\n
DIRECTORS<\/p>\n
Section 1. Number and Election of Directors. The Board of Directors
\nshall consist of not less than one nor more than fifteen members, the exact
\nnumber of which shall initially be fixed by the Incorporator and thereafter from
\ntime to time by the Board of Directors. Except as provided in Section 2 of this
\nArticle III, directors shall<\/p>\n
D-4
\n 94
\nbe elected by a plurality of the votes cast at the Annual Meetings of
\nStockholders and each director so elected shall hold office until the next
\nAnnual Meeting of Stockholders and until such director’s successor is duly
\nelected and qualified, or until such director’s earlier death, resignation or
\nremoval. Any director may resign at any time upon written notice to the
\nCorporation. Directors need not be stockholders.<\/p>\n
Section 2. Vacancies. Unless otherwise required by law or the
\nCertificate of Incorporation, vacancies arising through death, resignation,
\nremoval, an increase in the number of directors or otherwise may be filled only
\nby a majority of the directors then in office, though less than a quorum, or by
\na sole remaining director, and the directors so chosen shall hold office until
\nthe next Annual Meeting of Stockholders and until their successors are duly
\nelected and qualified, or until their earlier death, resignation or removal.<\/p>\n
Section 3. Duties and Powers. The business and affairs of the
\nCorporation shall be managed by or under the direction of the Board of Directors
\nwhich may exercise all such powers of the Corporation and do all such lawful
\nacts and things as are not by statute or by the Certificate of Incorporation or
\nby these By-Laws required to be exercised or done by the stockholders.<\/p>\n
Section 4. Meetings. The Board of Directors may hold meetings, both
\nregular and special, either within or without the State of Delaware. Regular
\nmeetings of the Board of Directors may be held without notice at such time and
\nat such place as may from time to time be determined by the Board of Directors.
\nSpecial meetings of the Board of Directors may be called by the Chairman, if
\nthere be one, the President, or by any director. Notice thereof stating the
\nplace, date and hour of the meeting shall be given to each director either by
\nmail not less than forty-eight (48) hours before the date of the meeting, by
\ntelephone or telegram on twenty-four (24) hours’ notice, or on such shorter
\nnotice as the person or persons calling such meeting may deem necessary or
\nappropriate in the circumstances.<\/p>\n
Section 5. Quorum. Except as otherwise required by law or the
\nCertificate of Incorporation, at all meetings of the Board of Directors, a
\nmajority of the entire Board of Directors shall constitute a quorum for the
\ntransaction of business and the act of a majority of the directors present at
\nany meeting at which there is a quorum shall be the act of the Board of
\nDirectors. If a quorum shall not be present at any meeting of the Board of
\nDirectors, the directors present thereat may adjourn the meeting from time to
\ntime, without notice other than announcement at the meeting of the time and
\nplace of the adjourned meeting, until a quorum shall be present.<\/p>\n
D-5
\n 95
\n Section 6. Actions by Written Consent. Unless otherwise provided in the
\nCertificate of Incorporation, or these By-Laws, any action required or permitted
\nto be taken at any meeting of the Board of Directors or of any committee thereof
\nmay be taken without a meeting, if all the members of the Board of Directors or
\ncommittee, as the case may be, consent thereto in writing, and the writing or
\nwritings are filed with the minutes of proceedings of the Board of Directors or
\ncommittee.<\/p>\n
Section 7. Meetings by Means of Conference Telephone. Unless otherwise
\nprovided in the Certificate of Incorporation, members of the Board of Directors
\nof the Corporation, or any committee thereof, may participate in a meeting of
\nthe Board of Directors or such committee by means of a conference telephone or
\nsimilar communications equipment by means of which all persons participating in
\nthe meeting can hear each other, and participation in a meeting pursuant to this
\nSection 7 shall constitute presence in person at such meeting.<\/p>\n
Section 8. Committees. The Board of Directors may designate one or more
\ncommittees, each committee to consist of one or more of the directors of the
\nCorporation. The Board of Directors may designate one or more directors as
\nalternate members of any committee, who may replace any absent or disqualified
\nmember at any meeting of any such committee. In the absence or disqualification
\nof a member of a committee, and in the absence of a designation by the Board of
\nDirectors of an alternate member to replace the absent or disqualified member,
\nthe member or members thereof present at any meeting and not disqualified from
\nvoting, whether or not such member or members constitute a quorum, may
\nunanimously appoint another member of the Board of Directors to act at the
\nmeeting in the place of any absent or disqualified member. Any committee, to the
\nextent permitted by law and provided in the resolution establishing such
\ncommittee, shall have and may exercise all the powers and authority of the Board
\nof Directors in the management of the business and affairs of the Corporation,
\nand may authorize the seal of the Corporation to be affixed to all papers which
\nmay require it. Each committee shall keep regular minutes and report to the
\nBoard of Directors when required.<\/p>\n
Section 9. Compensation. The directors may be paid their expenses, if
\nany, of attendance at each meeting of the Board of Directors and may be paid a
\nfixed sum for attendance at each meeting of the Board of Directors or a stated
\nsalary as director, payable in cash or securities. No such payment shall
\npreclude any director from serving the Corporation in any other capacity and
\nreceiving compensation therefor. Members of special or standing committees may
\nbe allowed like compensation for attending committee meetings.<\/p>\n
D-6
\n 96
\n Section 10. Interested Directors. No contract or transaction between
\nthe Corporation and one or more of its directors or officers, or between the
\nCorporation and any other corporation, partnership, association, or other
\norganization in which one or more of its directors or officers are directors or
\nofficers or have a financial interest, shall be void or voidable solely for this
\nreason, or solely because the director or officer is present at or participates
\nin the meeting of the Board of Directors or committee thereof which authorizes
\nthe contract or transaction, or solely because the director or officer’s vote is
\ncounted for such purpose if (i) the material facts as to the director or
\nofficer’s relationship or interest and as to the contract or transaction are
\ndisclosed or are known to the Board of Directors or the committee, and the Board
\nof Directors or committee in good faith authorizes the contract or transaction
\nby the affirmative votes of a majority of the disinterested directors, even
\nthough the disinterested directors be less than a quorum; or (ii) the material
\nfacts as to the director or officer’s relationship or interest and as to the
\ncontract or transaction are disclosed or are known to the stockholders entitled
\nto vote thereon, and the con tract or transaction is specifically approved in
\ngood faith by vote of the stockholders; or (iii) the contract or transaction is
\nfair as to the Corporation as of the time it is authorized, approved or ratified
\nby the Board of Directors, a committee thereof or the stockholders. Common or
\ninterested directors may be counted in determining the presence of a quorum at a
\nmeeting of the Board of Directors or of a committee which authorizes the
\ncontract or transaction.<\/p>\n
D-7
\n 97
\n ARTICLE IV<\/p>\n
OFFICERS<\/p>\n
Section 1. General. The officers of the Corporation shall be chosen by
\nthe Board of Directors and shall include a President, a Secretary and a
\nTreasurer. The Board of Directors, in its discretion, also may choose a Chairman
\nof the Board of Directors (who must be a director) and one or more Vice
\nPresidents, Assistant Secretaries, Assistant Treasurers and other officers. Any
\nnumber of offices may be held by the same person, unless otherwise prohibited by
\nlaw or the Certificate of Incorporation. The officers of the Corporation need
\nnot be stockholders of the Corporation nor, except in the case of the Chairman
\nof the Board of Directors, need such officers be directors of the Corporation.<\/p>\n
Section 2. Election. The Board of Directors, at its first meeting held
\nafter each Annual Meeting of Stockholders (or action by written consent of
\nstockholders in lieu of the Annual Meeting of Stockholders), shall elect the
\nofficers of the Corporation who shall hold their offices for such terms and
\nshall exercise such powers and perform such duties as shall be determined from
\ntime to time by the Board of Directors; and all officers of the Corporation
\nshall hold office until their successors are chosen and qualified, or until
\ntheir earlier death, resignation or removal. Any officer elected by the Board of
\nDirectors may be removed at any time by the affirmative vote of the Board of
\nDirectors. Any vacancy occurring in any office of the Corporation shall be
\nfilled by the Board of Directors. The salaries of all officers of the
\nCorporation shall be fixed by the Board of Directors.<\/p>\n
Section 3. Voting Securities Owned by the Corporation. Powers of
\nattorney, proxies, waivers of notice of meeting, consents and other instruments
\nrelating to securities owned by the Corporation may be executed in the name of
\nand on behalf of the Corporation by the President or any Vice President or any
\nother officer authorized to do so by the Board of Directors and any such officer
\nmay, in the name of and on behalf of the Corporation, take all such action as
\nany such officer may deem advisable to vote in person or by proxy at any meeting
\nof security holders of any corporation in which the Corporation may own
\nsecurities and at any such meeting shall possess and may exercise any and all
\nrights and power incident to the ownership of such securities and which, as the
\nowner thereof, the Corporation might have exercised and possessed if present.
\nThe Board of Directors may, by resolution, from time to time confer like powers
\nupon any other person or persons.<\/p>\n
D-8
\n 98
\n Section 4. Chairman of the Board of Directors. The Chairman of the
\nBoard of Directors, if there be one, shall preside at all meetings of the
\nstockholders and of the Board of Directors. The Chairman of the Board of
\nDirectors shall be the Chief Executive Officer of the Corporation, unless the
\nBoard of Directors designates the President as the Chief Executive Officer, and,
\nexcept where by law the signature of the President is required, the Chairman of
\nthe Board of Directors shall possess the same power as the President to sign all
\ncontracts, certificates and other instruments of the Corporation which may be
\nauthorized by the Board of Directors. During the absence or disability of the
\nPresident, the Chairman of the Board of Directors shall exercise all the powers
\nand discharge all the duties of the President. The Chairman of the Board of
\nDirectors shall also perform such other duties and may exercise such other
\npowers as may from time to time be assigned by these By-Laws or by the Board of
\nDirectors.<\/p>\n
Section 5. President. The President shall, subject to the control of
\nthe Board of Directors and, if there be one, the Chairman of the Board of
\nDirectors, have general supervision of the business of the Corporation and shall
\nsee that all orders and resolutions of the Board of Directors are carried into
\neffect. The President shall execute all bonds, mortgages, contracts and other
\ninstruments of the Corporation requiring a seal, under the seal of the
\nCorporation, except where required or permitted by law to be otherwise signed
\nand executed and except that the other officers of the Corporation may sign and
\nexecute documents when so authorized by these By-Laws, the Board of Directors or
\nthe President. In the absence or disability of the Chairman of the Board of
\nDirectors, or if there be none, the President shall preside at all meetings of
\nthe stockholders and the Board of Directors. If there be no Chairman of the
\nBoard of Directors, or if the Board of Directors shall otherwise designate, the
\nPresident shall be the Chief Executive Officer of the Corporation. The President
\nshall also perform such other duties and may exercise such other powers as may
\nfrom time to time be assigned to such officer by these By-Laws or by the Board
\nof Directors.<\/p>\n
Section 6. Vice Presidents. At the request of the President or in the
\nPresident’s absence or in the event of the President’s inability or refusal to
\nact (and if there be no Chairman of the Board of Directors), the Vice President,
\nor the Vice Presidents if there is more than one (in the order designated by the
\nBoard of Directors), shall perform the duties of the President, and when so
\nacting, shall have all the powers of and be subject to all the restrictions upon
\nthe President. Each Vice President shall perform such other duties and have such
\nother powers as the Board of Directors from time to time may prescribe. If there
\nbe no Chairman of the Board of Directors and no Vice President, the Board of
\nDirectors shall designate the officer of the Corporation who, in the absence of
\nthe President or in the event of the inability or refusal of the<\/p>\n
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\n 99
\nPresident to act, shall perform the duties of the President, and when so acting,
\nshall have all the powers of and be subject to all the restrictions upon the
\nPresident.<\/p>\n
Section 7. Secretary. The Secretary shall attend all meetings of the
\nBoard of Directors and all meetings of stockholders and record all the
\nproceedings thereat in a book or books to be kept for that purpose; the
\nSecretary shall also perform like duties for committees of the Board of
\nDirectors when required. The Secretary shall give, or cause to be given, notice
\nof all meetings of the stockholders and special meetings of the Board of
\nDirectors, and shall perform such other duties as may be prescribed by the Board
\nof Directors, the Chairman of the Board of Directors or the President, under
\nwhose supervision the Secretary shall be. If the Secretary shall be unable or
\nshall refuse to cause to be given notice of all meetings of the stockholders and
\nspecial meetings of the Board of Directors, and if there be no Assistant
\nSecretary, then either the Board of Directors or the President may choose
\nanother officer to cause such notice to be given. The Secretary shall have
\ncustody of the seal of the Corporation and the Secretary or any Assistant
\nSecretary, if there be one, shall have authority to affix the same to any
\ninstrument requiring it and when so affixed, it may be attested by the signature
\nof the Secretary or by the signature of any such Assistant Secretary. The Board
\nof Directors may give general authority to any other officer to affix the seal
\nof the Corporation and to attest to the affixing by such officer’s signature.
\nThe Secretary shall see that all books, reports, statements, certificates and
\nother documents and records required by law to be kept or filed are properly
\nkept or filed, as the case may be.<\/p>\n
Section 8. Treasurer. The Treasurer shall have the custody of the
\ncorporate funds and securities and shall keep full and accurate accounts of
\nreceipts and disbursements in books belonging to the Corporation and shall
\ndeposit all moneys and other valuable effects in the name and to the credit of
\nthe Corporation in such depositories as may be designated by the Board of
\nDirectors. The Treasurer shall disburse the funds of the Corporation as may be
\nordered by the Board of Directors, taking proper vouchers for such
\ndisbursements, and shall render to the President and the Board of Directors, at
\nits regular meetings, or when the Board of Directors so requires, an account of
\nall transactions as Treasurer and of the financial condition of the Corporation.
\nIf required by the Board of Directors, the Treasurer shall give the Corporation
\na bond in such sum and with such surety or sureties as shall be satisfactory to
\nthe Board of Directors for the faithful performance of the duties of the office
\nof the Treasurer and for the restoration to the Corporation, in case of the
\nTreasurer’s death, resignation, retirement or removal from office, of all books,
\npapers, vouchers, money and other property of whatever kind in the Treasurer’s
\npossession or under the Treasurer’s control belonging to the Corporation.<\/p>\n
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\n Section 9. Assistant Secretaries. Assistant Secretaries, if there be
\nany, shall perform such duties and have such powers as from time to time may be
\nassigned to them by the Board of Directors, the President, any Vice President,
\nif there be one, or the Secretary, and in the absence of the Secretary or in the
\nevent of the Secretary’s disability or refusal to act, shall perform the duties
\nof the Secretary, and when so acting, shall have all the powers of and be
\nsubject to all the restrictions upon the Secretary.<\/p>\n
Section 10. Assistant Treasurers. Assistant Treasurers, if there be
\nany, shall perform such duties and have such powers as from time to time may be
\nassigned to them by the Board of Directors, the President, any Vice President,
\nif there be one, or the Treasurer, and in the absence of the Treasurer or in the
\nevent of the Treasurer’s disability or refusal to act, shall perform the duties
\nof the Treasurer, and when so acting, shall have all the powers of and be
\nsubject to all the restrictions upon the Treasurer. If required by the Board of
\nDirectors, an Assistant Treasurer shall give the Corporation a bond in such sum
\nand with such surety or sureties as shall be satisfactory to the Board of
\nDirectors for the faithful performance of the duties of the office of Assistant
\nTreasurer and for the restoration to the Corporation, in case of the Assistant
\nTreasurer’s death, resignation, retirement or removal from office, of all books,
\npapers, vouchers, money and other property of whatever kind in the Assistant
\nTreasurer’s possession or under the Assistant Treasurer’s control belonging to
\nthe Corporation.<\/p>\n
Section 11. Other Officers. Such other officers as the Board of
\nDirectors may choose shall perform such duties and have such powers as from time
\nto time may be assigned to them by the Board of Directors. The Board of
\nDirectors may delegate to any other officer of the Corporation the power to
\nchoose such other officers and to prescribe their respective duties and powers.<\/p>\n
D-11
\n 101
\n ARTICLE V<\/p>\n
STOCK<\/p>\n
Section 1. Form of Certificates. Every holder of stock in the
\nCorporation shall be entitled to have a certificate signed, in the name of the
\nCorporation (i) by the Chairman of the Board of Directors, the President or a
\nVice President and (ii) by the Treasurer or an Assistant Treasurer, or the
\nSecretary or an Assistant Secretary of the Corporation, certifying the number of
\nshares owned by such stockholder in the Corporation.<\/p>\n
Section 2. Signatures. Any or all of the signatures on a certificate
\nmay be a facsimile. In case any officer, transfer agent or registrar who has
\nsigned or whose facsimile signature has been placed upon a certificate shall
\nhave ceased to be such officer, transfer agent or registrar before such
\ncertificate is issued, it may be issued by the Corporation with the same effect
\nas if such person were such officer, transfer agent or registrar at the date of
\nissue.<\/p>\n
Section 3. Lost Certificates. The Board of Directors may direct a new
\ncertificate to be issued in place of any certificate theretofore issued by the
\nCorporation alleged to have been lost, stolen or destroyed, upon the making of
\nan affidavit of that fact by the person claiming the certificate of stock to be
\nlost, stolen or destroyed. When authorizing such issue of a new certificate, the
\nBoard of Directors may, in its discretion and as a condition precedent to the
\nissuance thereof, require the owner of such lost, stolen or destroyed
\ncertificate, or the owner’s legal representative, to advertise the same in such
\nmanner as the Board of Directors shall require and\/or to give the Corporation a
\nbond in such sum as it may direct as indemnity against any claim that may be
\nmade against the Corporation with respect to the certificate alleged to have
\nbeen lost, stolen or destroyed or the issuance of such new certificate.<\/p>\n
Section 4. Transfers. Stock of the Corporation shall be transferable in
\nthe manner prescribed by law and in these By-Laws. Transfers of stock shall be
\nmade on the books of the Corporation only by the person named in the certificate
\nor by such person’s attorney lawfully constituted in writing and upon the
\nsurrender of the certificate therefor, which shall be cancelled before a new
\ncertificate shall be issued. No transfer of stock shall be valid as against the
\nCorporation for any purpose until it shall have been entered in the stock
\nrecords of the Corporation by an entry showing from and to whom transferred.<\/p>\n
Section 5. Record Date.<\/p>\n
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\n 102
\n (a) In order that the Corporation may determine the stockholders
\nentitled to notice of or to vote at any meeting of stockholders or any
\nadjournment thereof, the board of directors may fix a record date, which record
\ndate shall not precede the date upon which the resolution fixing the record date
\nis adopted by the Board of Directors, and which record date shall not be more
\nthan sixty nor less than ten days before the date of such meeting. If no record
\ndate is fixed by the Board of Directors, the record date for determining
\nstockholders entitled to notice of or to vote at a meeting of stockholders shall
\nbe at the close of business on the day next preceding the day on which notice is
\ngiven, or, if notice is waived, at the close of business on the day next
\npreceding the day on which the meeting is held. A determination of stockholders
\nof record entitled to notice of or to vote at a meeting of stockholders shall
\napply to any adjournment of the meeting; providing, however, that the Board of
\nDirectors may fix a new record date for the adjourned meeting.<\/p>\n
(b) In order that the Corporation may determine the stockholders
\nentitled to consent to corporate action in writing without a meeting, the Board
\nof Directors may fix a record date, which record date shall not precede the date
\nupon which the resolution fixing the record date is adopted by the Board of
\nDirectors, and which record date shall not be more than ten days after the date
\nupon which the resolution fixing the record date is adopted by the Board of
\nDirectors. If no record date has been fixed by the Board of Directors, the
\nrecord date for determining stockholders entitled to consent to corporate action
\nin writing without a meeting, when no prior action by the Board of Directors is
\nrequired by law, shall be the first date on which a signed written consent
\nsetting forth the action taken or proposed to be taken is delivered to the
\nCorporation by delivery to its registered office in this State, its principal
\nplace of business, or an officer or agent of the Corporation having custody of
\nthe book in which proceedings of meetings of stockholders are recorded. Delivery
\nmade to a corporation’s registered office shall be by hand or by certified or
\nregistered mail, return receipt requested. If no record date has been fixed by
\nthe Board of Directors and prior action by the Board of Directors is required by
\nlaw, the record date for determining stockholders entitled to consent to
\ncorporate action in writing without a meeting shall be at the close of business
\non the day on which the Board of Directors adopts the resolutions taking such
\nprior action.<\/p>\n
(c) In order that the Corporation may determine the stockholders
\nentitled to receive payment of any dividend or other distribution or allotment
\nof any rights or the stockholders entitled to exercise any rights in respect of
\nany change, conversion or exchange of stock, or for the purpose of any other
\nlawful action, the Board of Directors may fix a record date, which record date
\nshall not precede the date upon which the resolution fixing the record date is
\nadopted, and which record date shall be not more than sixty days prior to such
\naction. If no record date is fixed, the record date<\/p>\n
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\n 103
\nfor determining stockholders for any such purpose shall be at the close of
\nbusiness on the day on which the Board of Directors adopts the resolution
\nrelating thereto.<\/p>\n
Section 6. Record Owners. The Corporation shall be entitled to
\nrecognize the exclusive right of a person registered on its books as the owner
\nof shares to receive dividends, and to vote as such owner, and to hold liable
\nfor calls and assessments a person registered on its books as the owner of
\nshares, and shall not be bound to recognize any equitable or other claim to or
\ninterest in such share or shares on the part of any other person, whether or not
\nit shall have express or other notice thereof, except as otherwise required by
\nlaw.<\/p>\n
ARTICLE VI<\/p>\n
NOTICES<\/p>\n
Section 1. Notices. Whenever written notice is required by law, the
\nCertificate of Incorporation or these By-Laws, to be given to any director,
\nmember of a committee or stockholder, such notice may be given by mail,
\naddressed to such director, member of a committee or stockholder, at such
\nperson’s address as it appears on the records of the Corporation, with postage
\nthereon prepaid, and such notice shall be deemed to be given at the time when
\nthe same shall be deposited in the United States mail. Written notice may also
\nbe given personally or by telegram, telex or cable.<\/p>\n
Section 2. Waivers of Notice. Whenever any notice is required by law,
\nthe Certificate of Incorporation or these By-Laws, to be given to any director,
\nmember of a committee or stockholder, a waiver thereof in writing, signed, by
\nthe person or persons entitled to said notice, whether before or after the time
\nstated therein, shall be deemed equivalent thereto. Attendance of a person at a
\nmeeting, present in person or represented by proxy, shall constitute a waiver of
\nnotice of such meeting, except where the person attends the meeting for the
\nexpress purpose of objecting at the beginning of the meeting to the transaction
\nof any business because the meeting is not lawfully called or convened.<\/p>\n
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\n 104
\n ARTICLE VII<\/p>\n
GENERAL PROVISIONS<\/p>\n
Section 1. Dividends. Dividends upon the capital stock of the
\nCorporation, subject to the requirements of the DGCL and the provisions of the
\nCertificate of Incorporation, if any, may be declared by the Board of Directors
\nat any regular or special meeting of the Board of Directors (or any action by
\nwritten consent in lieu thereof in accordance with Section 6 of Article III
\nhereof), and may be paid in cash, in property, or in shares of the Corporation’s
\ncapital stock. Before payment of any dividend, there may be set aside out of any
\nfunds of the Corporation available for dividends such sum or sums as the Board
\nof Directors from time to time, in its absolute discretion, deems proper as a
\nreserve or reserves to meet contingencies, or for equalizing dividends, or for
\nrepairing or maintaining any property of the Corporation, or for any proper
\npurpose, and the Board of Directors may modify or abolish any such reserve.<\/p>\n
Section 2. Disbursements. All checks or demands for money and notes of
\nthe Corporation shall be signed by such officer or officers or such other person
\nor persons as the Board of Directors may from time to time designate.<\/p>\n
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
\nfixed by resolution of the Board of Directors.<\/p>\n
Section 4. Corporate Seal. The corporate seal shall have inscribed
\nthereon the name of the Corporation, the year of its organization and the words
\n“Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile
\nthereof to be impressed or affixed or reproduced or otherwise.<\/p>\n
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\n 105
\n ARTICLE VIII<\/p>\n
INDEMNIFICATION<\/p>\n
Section 1. Power to Indemnify in Actions, Suits or Proceedings other
\nthan those by or in the Right of the Corporation. Subject to Section 3 of this
\nArticle VIII, the Corporation shall indemnify any person who was or is a party
\nor is threatened to be made a party to any threatened, pending or completed
\naction, suit or proceeding, whether civil, criminal, administrative or
\ninvestigative (other than an action by or in the right of the Corporation) by
\nreason of the fact that such person is or was a director or officer of the
\nCorporation, or is or was a director or officer of the Corporation serving at
\nthe request of the Corporation as a director or officer, employee or agent of
\nanother corporation, partnership, joint venture, trust, employee benefit plan or
\nother enterprise, against expenses (including attorneys’ fees), judgments, fines
\nand amounts paid in settlement actually and reasonably incurred by such person
\nin connection with such action, suit or proceeding if such person acted in good
\nfaith and in a manner such person reasonably believed to be in or not opposed to
\nthe best interests of the Corporation, and, with respect to any criminal action
\nor proceeding, had no reasonable cause to believe such person’s conduct was
\nunlawful. The termination of any action, suit or proceeding by judgment, order,
\nsettlement, conviction, or upon a plea of nolo contendere or its equivalent,
\nshall not, of itself, create a presumption that the person did not act in good
\nfaith and in a manner which such person reasonably believed to be in or not
\nopposed to the best interests of the Corporation, and, with respect to any
\ncriminal action or proceeding, had reasonable cause to believe that such
\nperson’s conduct was unlawful.<\/p>\n
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in
\nthe Right of the Corporation. Subject to Section 3 of this Article VIII, the
\nCorporation shall indemnify any person who was or is a party or is threatened to
\nbe made a party to any threatened, pending or completed action or suit by or in
\nthe right of the Corporation to procure a judgment in its favor by reason of the
\nfact that such person is or was a director or officer of the Corporation, or is
\nor was a director or officer of the Corporation serving at the request of the
\nCorporation as a director, officer, employee or agent of another corporation,
\npartnership, joint venture, trust, employee benefit plan or other enterprise
\nagainst expenses (including attorneys’ fees) actually and reasonably incurred by
\nsuch person in connection with the defense or settlement of such action or suit
\nif such person acted in good faith and in a manner such person reasonably
\nbelieved to be in or not opposed to the best interests of the Corporation;
\nexcept that no indemnification shall be made in respect of any claim, issue or
\nmatter as to which such person shall have been adjudged to be liable to the
\nCorporation unless and only to the extent that the Court of Chancery or the
\ncourt in which such action or suit was brought shall determine upon<\/p>\n
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\n 106
\napplication that, despite the adjudication of liability but in view of all the
\ncircumstances of the case, such person is fairly and reasonably entitled to
\nindemnity for such expenses which the Court of Chancery or such other court
\nshall deem proper.<\/p>\n
Section 3. Authorization of Indemnification. Any indemnification under
\nthis Article VIII (unless ordered by a court) shall be made by the Corporation
\nonly as authorized in the specific case upon a determination that
\nindemnification of the director or officer is proper in the circumstances
\nbecause such person has met the applicable standard of conduct set forth in
\nSection 1 or Section 2 of this Article VIII, as the case may be. Such
\ndetermination shall be made, with respect to a person who is a director or
\nofficer at the time of such determination, (i) by a majority vote of the
\ndirectors who are not parties to such action, suit or proceeding, even though
\nless than a quorum, or (ii) by a committee of such directors designated by a
\nmajority vote of such directors, even though less than a quorum, or (iii) if
\nthere are no such directors, or if such directors so direct, by independent
\nlegal counsel in a written opinion or (iv) by the stockholders. Such
\ndetermination shall be made, with respect to former directors and officers, by
\nany person or persons having the authority to act on the matter on behalf of the
\nCorporation. To the extent, however, that a present or former director or
\nofficer of the Corporation has been successful on the merits or otherwise in
\ndefense of any action, suit or proceeding described above, or in defense of any
\nclaim, issue or matter therein, such person shall be indemnified against
\nexpenses (including attorneys’ fees) actually and reasonably incurred by such
\nperson in connection therewith, without the necessity of authorization in the
\nspecific case.<\/p>\n
Section 4. Good Faith Defined. For purposes of any determination under
\nSection 3 of this Article VIII, a person shall be deemed to have acted in good
\nfaith and in a manner such person reasonably believed to be in or not opposed to
\nthe best interests of the Corporation, or, with respect to any criminal action
\nor proceeding, to have had no reasonable cause to believe such person’s conduct
\nwas unlawful, if such person’s action is based on the records or books of
\naccount of the Corporation or another enterprise, or on information supplied to
\nsuch person by the officers of the Corporation or another enterprise in the
\ncourse of their duties, or on the advice of legal counsel for the Corporation or
\nanother enterprise or on information or records given or reports made to the
\nCorporation or another enterprise by an independent certified public accountant
\nor by an appraiser or other expert selected with reasonable care by the
\nCorporation or another enterprise. The term “another enterprise” as used in this
\nSection 4 shall mean any other corporation or any partnership, joint venture,
\ntrust, employee benefit plan or other enterprise of which such person is or was
\nserving at the request of the Corporation as a director, officer, employee or
\nagent. The provisions of this Section 4 shall not be deemed to be exclusive or
\nto limit in any way the circumstances in which a person may<\/p>\n
D-17
\n 107
\nbe deemed to have met the applicable standard of conduct set forth in Section 1
\nor 2 of this Article VIII, as the case may be.<\/p>\n
Section 5. Indemnification by a Court. Notwithstanding any contrary
\ndetermination in the specific case under Section 3 of this Article VIII, and
\nnotwithstanding the absence of any determination thereunder, any director or
\nofficer may apply to the Court of Chancery in the State of Delaware for
\nindemnification to the extent otherwise permissible under Sections 1 and 2 of
\nthis Article VIII. The basis of such indemnification by a court shall be a
\ndetermination by such court that indemnification of the director or officer is
\nproper in the circumstances because such person has met the applicable standards
\nof conduct set forth in Section 1 or 2 of this Article VIII, as the case may be.
\nNeither a contrary determination in the specific case under Section 3 of this
\nArticle VIII nor the absence of any determination thereunder shall be a defense
\nto such application or create a presumption that the director or officer seeking
\nindemnification has not met any applicable standard of conduct. Notice of any
\napplication for indemnification pursuant to this Section 5 shall be given to the
\nCorporation promptly upon the filing of such application. If successful, in
\nwhole or in part, the director or officer seeking indemnification shall also be
\nentitled to be paid the expense of prosecuting such application.<\/p>\n
Section 6. Expenses Payable in Advance. Expenses incurred by a director
\nor officer in defending any civil, criminal, administrative or investigative
\naction, suit or proceeding shall be paid by the Corporation in advance of the
\nfinal disposition of such action, suit or proceeding upon receipt of an
\nundertaking by or on behalf of such director or officer to repay such amount if
\nit shall ultimately be determined that such person is not entitled to be
\nindemnified by the Corporation as authorized in this Article VIII.<\/p>\n
Section 7. Nonexclusivity of Indemnification and Advancement of
\nExpenses. The indemnification and advancement of expenses provided by or granted
\npursuant to this Article VIII shall not be deemed exclusive of any other rights
\nto which those seeking indemnification or advancement of expenses may be
\nentitled under the Certificate of Incorporation, any By-Law, agreement, vote of
\nstockholders or disinterested directors or otherwise, both as to action in such
\nperson’s official capacity and as to action in another capacity while holding
\nsuch office, it being the policy of the Corporation that indemnification of the
\npersons specified in Sections 1 and 2 of this Article VIII shall be made to the
\nfullest extent permitted by law. The provisions of this Article VIII shall not
\nbe deemed to preclude the indemnification of any person who is not specified in
\nSection 1 or 2 of this Article VIII but whom the Corporation has the power or<\/p>\n
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\n 108
\nobligation to indemnify under the provisions of the General Corporation Law of
\nthe State of Delaware, or otherwise.<\/p>\n
Section 8. Insurance. The Corporation may purchase and maintain
\ninsurance on behalf of any person who is or was a director or officer of the
\nCorporation, or is or was a director or officer of the Corporation serving at
\nthe request of the Corporation as a director, officer, employee or agent of
\nanother corporation, partnership, joint venture, trust, employee benefit plan or
\nother enterprise against any liability asserted against such person and incurred
\nby such person in any such capacity, or arising out of such person’s status as
\nsuch, whether or not the Corporation would have the power or the obligation to
\nindemnify such person against such liability under the provisions of this
\nArticle VIII.<\/p>\n
Section 9. Certain Definitions. For purposes of this Article VIII,
\nreferences to “the Corporation” shall include, in addition to the resulting
\ncorporation, any constituent corporation (including any constituent of a
\nconstituent) absorbed in a consolidation or merger which, if its separate
\nexistence had continued, would have had power and authority to indemnify its
\ndirectors or officers, so that any person who is or was a director or officer of
\nsuch constituent corporation, or is or was a director or officer of such
\nconstituent corporation serving at the request of such constituent corporation
\nas a director, officer, employee or agent of another corporation, partnership,
\njoint venture, trust, employee benefit plan or other enterprise, shall stand in
\nthe same position under the provisions of this Article VIII with respect to the
\nresulting or surviving corporation as such person would have with respect to
\nsuch constituent corporation if its separate existence had continued. For
\npurposes of this Article VIII, references to “fines” shall include any excise
\ntaxes assessed on a person with respect to an employee benefit plan; and
\nreferences to “serving at the request of the Corporation” shall include any
\nservice as a director, officer, employee or agent of the Corporation which
\nimposes duties on, or involves services by, such director or officer with
\nrespect to an employee benefit plan, its participants or beneficiaries; and a
\nperson who acted in good faith and in a manner such person reasonably believed
\nto be in the interest of the participants and beneficiaries of an employee
\nbenefit plan shall be deemed to have acted in a manner “not opposed to the best
\ninterests of the Corporation” as referred to in this Article VIII.<\/p>\n
Section 10. Survival of Indemnification and Advancement of Expenses.
\nThe indemnification and advancement of expenses provided by, or granted pursuant
\nto, this Article VIII shall, unless otherwise provided when authorized or
\nratified, continue as to a person who has ceased to be a director or officer and
\nshall inure to the benefit of the heirs, executors and administrators of such a
\nperson.<\/p>\n
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\n 109
\n Section 11. Limitation on Indemnification. Notwithstanding anything
\ncontained in this Article VIII to the contrary, except for proceedings to
\nenforce rights to indemnification (which shall be governed by Section 5 hereof),
\nthe Corporation shall not be obligated to indemnify any director or officer in
\nconnection with a proceeding (or part thereof) initiated by such person unless
\nsuch proceeding (or part thereof) was authorized or consented to by the Board of
\nDirectors of the Corporation.<\/p>\n
Section 12. Indemnification of Employees and Agents. The Corporation
\nmay, to the extent authorized from time to time by the Board of Directors,
\nprovide rights to indemnification and to the advancement of expenses to
\nemployees and agents of the Corporation similar to those conferred in this
\nArticle VIII to directors and officers of the Corporation.<\/p>\n
ARTICLE IX<\/p>\n
AMENDMENTS<\/p>\n
Section 1. Amendments. These By-Laws may be altered, amended or
\nrepealed, in whole or in part, or new By-Laws may be adopted by the stockholders
\nor by the Board of Directors, provided, however, that notice of such alteration,
\namendment, repeal or adoption of new By-Laws be contained in the notice of such
\nmeeting of stockholders or Board of Directors as the case may be. All such
\namendments must be approved by either the holders of a majority of the
\noutstanding capital stock entitled to vote thereon or by a majority of the
\nentire Board of Directors then in office.<\/p>\n
Section 2. Entire Board of Directors. As used in this Article IX and in
\nthese By-Laws generally, the term “entire Board of Directors” means the total
\nnumber of directors which the Corporation would have if there were no vacancies.<\/p>\n
* * *<\/p>\n
Adopted as of: _____________________<\/p>\n
Last Amended as of: ________________
\n 110
\n EXHIBIT E<\/p>\n
DESIGNATED OFFICERS<\/p>\n
OF<\/p>\n
DAIMLER-BENZ AG AND CHRYSLER CORPORATION<\/p>\n
Jurgen E. Schrempp Robert J. Eaton
\n Manfred Gentz Thomas T. Stallkamp
\n Eckhard Cordes Gary C. Valade
\n Jurgen Hubbert Theodor R. Cunningham
\n Manfred Bischoff Thomas C. Gale
\n Kurt Lauk James P. Holden
\n Klaus Mangold Dennis K. Pawley
\n Heiner Tropitzsch Thomas W. Sidlik
\n Klaus-Dieter Vohringer
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