Common use of Certain Businesses Clause in Contracts

Certain Businesses. (a) Parent’s and UpstreamCo’s rolling businesses have operated as a unified part of Parent and management, assets, intellectual property and know-how, customers, suppliers, and systems are shared between such businesses. As a result, the provisions of this Section 5.7 are necessary to (i) allow each Party to operate its respective rolling businesses effectively and competitively and (ii) protect each Party, in light of the substantial investment of time and financial resources in such businesses and each Party’s knowledge of the other Party’s customers, markets, strategy, technology, intellectual property and know-how, suppliers and personnel, against potential damage from the wrongful use of such knowledge. (b) The Parties hereby acknowledge the following: (i) pursuant to this Agreement, Parent’s Xxxxxxx rolling mill (“Xxxxxxx”) and 25.1% interest in the Ma’aden Rolling Company (“MRC”) are UpstreamCo Assets and Parent’s Tennessee rolling mill (“Tennessee”) is a Parent Asset, in each case as a result of the Parties’ intent for Parent’s North American can body stock and certain other businesses to be allocated to UpstreamCo and Parent’s Automotive Sheet business and certain other businesses to be retained by Parent; and (ii) Xxxxxxx currently produces the Xxxxxxx Current Product Lines, MRC currently produces the MRC Current Product Lines and Tennessee currently produces the Tennessee Current Product Lines. (c) The Parties hereby agree that from and after the Effective Time until the fourth anniversary thereof: (i) neither the UpstreamCo Group nor UpstreamCo’s Affiliates shall, directly or indirectly, produce, design, develop (including without limitation customer trials or qualifications), manufacture or sell (including without limitation negotiations with customers related to sales to be made after expiration of this Section 5.7) any Excluded UpstreamCo Product Lines; provided that the foregoing restriction in this Section 5.7(c)(i) does not apply to MRC; (ii) neither the Parent Group nor the Parent’s Affiliates shall, directly or indirectly, produce, design, develop, manufacture or sell any Excluded Parent Product Lines, provided that: (A) Parent’s Affiliate in Samara, Russia, may produce, design, develop (including without limitation customer trials or qualifications), manufacture and sell (including without limitation negotiations with customers related to sales to be made after expiration of this Section 5.7) Excluded Parent Product Lines (A) through (F) to end-use customers located in the Russian Federation, the Ukraine, Kazakhstan, Belorussia, Finland, or Poland; (B) Parent’s Affiliate in Bohai (“Bohai”) of the People’s Republic of China (“PRC”) may produce, design, develop (including without limitation customer trials or qualifications), manufacture and sell (including without limitation negotiations with customers related to sales to be made after expiration of this Section 5.7) Excluded Parent Product Lines (A) through (F) to: (I) end-use customers in the PRC, (II) fulfill contractual supply commitments made by Bohai to its customers in all countries outside of the PRC in effect as of the date of this Agreement until such contractual supply commitments expire, terminate or are otherwise satisfied or voided, without further amendment or extension, and (III) end customers in Southeast Asian countries outside of the PRC, not under a current contractual commitment, until such time as UpstreamCo informs Parent in writing that MRC is ready to supply the Excluded Parent Product Lines (A) through (F), on a product-by-product basis, to the Southeast Asian customers under this subsection (III) and Bohai is able to transition such production to MRC; (C) Parent’s Affiliate in Lancaster, Pennsylvania may produce, design, develop (including without limitation customer trials or qualifications), manufacture and sell (including without limitation negotiations with customers related to sales to be made after expiration of this Section 5.7) Excluded Parent Product Line (G) to the extent it produces, designs, develops, manufactures and sells such products as of the Effective Date; and (D) Tennessee may produce, manufacture and supply to UpstreamCo any of the Excluded Parent Product Lines to the extent permitted under the Toll Processing and Services Agreement. Notwithstanding anything in this Agreement to the contrary, but subject to the terms of Section 5.7(e), (A) Section 5.7(c)(ii) shall survive any acquisition or Change of Control of Parent and, for the avoidance of doubt, Parent’s Affiliates for purposes thereof shall include, without limitation, any Person (and its Affiliates) that directly or indirectly owns a majority of the capital stock or assets of Parent as a result of such Change of Control, and (B) Sections 5.7(c)(i) shall survive any acquisition or Change of Control of UpstreamCo and, for the avoidance of doubt, UpstreamCo’s Affiliates for purposes thereof shall include, without limitation, any Person (and its Affiliates) that directly or indirectly owns a majority of the capital stock or assets of UpStreamCo as a result of such Change of Control. (d) For purposes of this Section 5.7, the definitions of Xxxxxxx Current Product Lines, MRC Current Product Lines, Excluded UpstreamCo Product Lines, Tennessee Current Product Lines, Excluded Parent Product Lines, Automotive Sheet, UpstreamCo Restricted Business and Parent Restricted Business are set forth on Schedule 5.7. (e) Notwithstanding the foregoing, none of the following shall constitute a breach of Section 5.7(c) (except to the extent set forth in the provisos to this Section 5.7(e)): (i) the purchase or ownership by the UpstreamCo Group or the Parent Group of a Person or business that derives less than 10% of its total annual revenues from an UpstreamCo Restricted Business or the Parent Restricted Business, respectively, in each case measured for the fiscal year ended immediately prior to the date of purchase or commencement of ownership; (ii) the purchase or ownership by the UpstreamCo Group or the Parent Group of a Person or business that derives an amount greater than 10% of its total annual revenues from an Upstream Restricted Business or a Parent Restricted Business, respectively, in each case measured for the fiscal year ended immediately prior to the date of purchase or commencement of ownership, provided that such Group shall divest, to an unaffiliated third party, the UpstreamCo Restricted Business or the Parent Restricted Business, as applicable, operated by such acquired Person or business or otherwise reduce the UpstreamCo Restricted Business or Parent Restricted Business, as applicable, operated by such acquired Person or business in size to constitute less than the greater of 10% of its total annual revenues, measured for the fiscal year ended immediately prior to the date of such purchase, by the date that is one year following the date of such purchase; provided, that such one-year period shall be extended to the date on which all approvals from any Governmental Authority required to complete the divestiture are received (but no later than the 18-month anniversary following the acquisition of such Person or business) if such approvals are not received by the first anniversary following the acquisition; (iii) the direct or indirect ownership by the UpstreamCo Group or the Parent Group of publicly traded interests in or securities of any Person engaged in an UpstreamCo Restricted Business or Parent Restricted Business, respectively, to the extent that such investment does not, directly or indirectly, confer on such Group more than 10% of the voting power of such Person, or the investment in any fund in which the UpstreamCo Group or the Parent Group has no discretion with respect to the investment strategy of such fund; and (iv) the design, development, manufacture or sale of products or applications that do not comprise the UpstreamCo Restricted Business or Parent Restricted Business but that incorporate such restricted products or applications as components. (f) If the final judgment of a court of competent jurisdiction declares any term or provision of this Section 5.7 invalid or unenforceable, the Parties hereto agree that the court making the determination of invalidity or unenforceability shall have the power to and shall reform this Section 5.7 to reduce the time, geographic area and/or scope of activity, to delete specific words or phrases, and/or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. (g) Each Party acknowledges and agrees that the agreements and covenants set forth in this Section 5.7 are (i) necessary to protect the legitimate business interests of the other Party, (ii) reasonable as to time, geographic area and scope of activity and do not impose a greater restraint on the activities of such Party than is reasonable necessary to protect such legitimate interests the other Party, and (iii) reasonable in light of the consideration and other value provided, directly or indirectly, to such Party by the other Party pursuant to this Agreement and the Separation. Each Party hereby waives any and all rights to contest the validity of the agreements and covenants set forth in this Section 5.7 on the ground of the reasonableness of the length of their term or the breadth of their geographic area or scope of activity.

Certain Businesses. (a) Parent’s and UpstreamCo’s rolling businesses have operated as a unified part of Parent and management, assets, intellectual property and know-how, customers, suppliers, and systems are shared between such businesses. As a result, the provisions of this Section 5.7 are necessary to (i) allow each Party to operate its respective rolling businesses effectively and competitively and (ii) protect each Party, in light of the substantial investment of time and financial resources in such businesses and each Party’s knowledge of the other Party’s customers, markets, strategy, technology, intellectual property and know-how, suppliers and personnel, against potential damage from the wrongful use of such knowledge. (b) The Parties hereby acknowledge the following: (i) pursuant to this Agreement, Parent’s Xxxxxxx rolling mill (“Xxxxxxx”) and 25.1% interest in the Ma’aden Rolling Company (“MRC”) are UpstreamCo Assets and Parent’s Tennessee rolling mill (“Tennessee”) is a Parent Asset, in each case as a result of the Parties’ intent for Parent’s North American can body stock and certain other businesses to be allocated to UpstreamCo and Parent’s Automotive Sheet business and certain other businesses to be retained by Parent; and (ii) Xxxxxxx currently produces the Xxxxxxx Current Product Lines, MRC currently produces the MRC Current Product Lines and Tennessee currently produces the Tennessee Current Product Lines. (c) The Parties hereby agree that from and after the Effective Time until the fourth anniversary thereof: (i) neither the UpstreamCo Group nor UpstreamCo’s Affiliates shall, directly or indirectly, produce, design, develop (including without limitation customer trials or qualifications), manufacture or sell (including without limitation negotiations with customers related to sales to be made after expiration of this Section 5.7) any Excluded UpstreamCo Product Lines; provided that the foregoing restriction in this Section 5.7(c)(i) does not apply to MRC; (ii) neither the Parent Group nor the Parent’s Affiliates shall, directly or indirectly, produce, design, develop, manufacture or sell any Excluded Parent Product Lines, provided that: (A) Parent’s Affiliate in Samara, Russia, may produce, design, develop (including without limitation customer trials or qualifications), manufacture and sell (including without limitation negotiations with customers related to sales to be made after expiration of this Section 5.7) Excluded Parent Product Lines (A) through (F) to end-use customers located in the Russian Federation, the Ukraine, Kazakhstan, Belorussia, Finland, or Poland; (B) Parent’s Affiliate in Bohai (“Bohai”) of the People’s Republic of China (“PRC”) may produce, design, develop (including without limitation customer trials or qualifications), manufacture and sell (including without limitation negotiations with customers related to sales to be made after expiration of this Section 5.7) Excluded Parent Product Lines (A) through (F) to: (I) end-use customers in the PRC, (II) fulfill contractual supply commitments made by Bohai to its customers in all countries outside of the PRC in effect as of the date of this Agreement until such contractual supply commitments expire, terminate or are otherwise satisfied or voided, without further amendment or extension, and (III) end customers in Southeast Asian countries outside of the PRC, even if not under a current contractual commitment, until such time as UpstreamCo informs Parent in writing that MRC is ready to supply the Excluded Parent Product Lines (A) through (F), on a product-by-product basis, such products to the Southeast Asian customers under this subsection (III) and Bohai is able to transition such production to MRC; (C) Parent’s Affiliate in Lancaster, Pennsylvania may produce, design, develop (including without limitation customer trials or qualifications), manufacture and sell (including without limitation negotiations with customers related to sales to be made after expiration of this Section 5.7) Excluded Parent Product Line (G) to the extent it produces, designs, develops, manufactures and sells such products as of the Effective Date; and (D) Tennessee may produce, manufacture and supply to UpstreamCo any of the Excluded Parent Product Lines to the extent permitted under the Toll Processing and Services Agreement. Notwithstanding anything in this Agreement to the contrary, but subject to the terms of Section 5.7(e), (A) Section 5.7(c)(ii) shall survive any acquisition or Change of Control of Parent and, for the avoidance of doubt, Parent’s Affiliates for purposes thereof shall include, without limitation, any Person (and its Affiliates) that directly or indirectly owns a majority of the capital stock or assets of Parent as a result of such Change of Control, and (B) Sections 5.7(c)(i) shall survive any acquisition or Change of Control of UpstreamCo and, for the avoidance of doubt, UpstreamCo’s Affiliates for purposes thereof shall include, without limitation, any Person (and its Affiliates) that directly or indirectly owns a majority of the capital stock or assets of UpStreamCo as a result of such Change of Control. (d) For purposes of this Section 5.7, the definitions of Xxxxxxx Current Product Lines, MRC Current Product Lines, Excluded UpstreamCo Product Lines, Tennessee Current Product Lines, Excluded Parent Product Lines, Automotive Sheet, UpstreamCo Restricted Business and Parent Restricted Business are set forth on Schedule 5.7. (e) Notwithstanding the foregoing, none of the following shall constitute a breach of Section 5.7(c) (except to the extent set forth in the provisos to this Section 5.7(e)): (i) the purchase or ownership by the UpstreamCo Group or the Parent Group of a Person or business that derives less than 10% of its total annual revenues from an UpstreamCo Restricted Business or the Parent Restricted Business, respectively, in each case measured for the fiscal year ended immediately prior to the date of purchase or commencement of ownership; (ii) the purchase or ownership by the UpstreamCo Group or the Parent Group of a Person or business that derives an amount greater than 10% of its total annual revenues from an Upstream Restricted Business or a Parent Restricted Business, respectively, in each case measured for the fiscal year ended immediately prior to the date of purchase or commencement of ownership, provided that such Group shall divest, to an unaffiliated third party, the UpstreamCo Restricted Business or the Parent Restricted Business, as applicable, operated by such acquired Person or business or otherwise reduce the UpstreamCo Restricted Business or Parent Restricted Business, as applicable, operated by such acquired Person or business in size to constitute less than the greater of 10% of its total annual revenues, measured for the fiscal year ended immediately prior to the date of such purchase, by the date that is one year following the date of such purchase; provided, that such one-year period shall be extended to the date on which all approvals from any Governmental Authority required to complete the divestiture are received (but no later than the 18-month anniversary following the acquisition of such Person or business) if such approvals are not received by the first anniversary following the acquisition; (iii) the direct or indirect ownership by the UpstreamCo Group or the Parent Group of publicly traded interests in or securities of any Person engaged in an UpstreamCo Restricted Business or Parent Restricted Business, respectively, to the extent that such investment does not, directly or indirectly, confer on such Group more than 10% of the voting power of such Person, or the investment in any fund in which the UpstreamCo Group or the Parent Group has no discretion with respect to the investment strategy of such fund; and (iv) the design, development, manufacture or sale of products or applications that do not comprise the UpstreamCo Restricted Business or Parent Restricted Business but that incorporate such restricted products or applications as components. (f) If the final judgment of a court of competent jurisdiction declares any term or provision of this Section 5.7 invalid or unenforceable, the Parties hereto agree that the court making the determination of invalidity or unenforceability shall have the power to and shall reform this Section 5.7 to reduce the time, geographic area and/or scope of activity, to delete specific words or phrases, and/or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. (g) Each Party acknowledges and agrees that the agreements and covenants set forth in this Section 5.7 are (i) necessary to protect the legitimate business interests of the other Party, (ii) reasonable as to time, geographic area and scope of activity and do not impose a greater restraint on the activities of such Party than is reasonable necessary to protect such legitimate interests the other Party, and (iii) reasonable in light of the consideration and other value provided, directly or indirectly, to such Party by the other Party pursuant to this Agreement and the Separation. Each Party hereby waives any and all rights to contest the validity of the agreements and covenants set forth in this Section 5.7 on the ground of the reasonableness of the length of their term or the breadth of their geographic area or scope of activity.