EXHIBIT 2
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DISTRIBUTION AGREEMENT
between
XXXX CORPORATION,
and
ARCH CHEMICALS, INC.
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Dated as of February 1, 1999
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DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Definitions............................................. 1
ARTICLE II
Certain Transactions at or Prior to the Distribution;
Certain Covenants
SECTION 2.01. Certain Transactions.................................... 13
SECTION 2.02. Financing............................................... 16
SECTION 2.03. Operations in Ordinary Course........................... 16
SECTION 2.04. Capital Structure....................................... 16
SECTION 2.05. Resignations............................................ 17
SECTION 2.06. Further Assurances...................................... 17
SECTION 2.07. No Representations or Warranties........................ 17
SECTION 2.08. Elimination of Guarantees............................... 18
SECTION 2.09. Intercompany Accounts................................... 18
SECTION 2.10. Transfers Not Effected Prior to Distribution Date;
Transfers Deemed Effective as of Distribution Date.... 18
SECTION 2.11. Ancillary Agreements.................................... 19
ARTICLE III
The Distribution
SECTION 3.01. Distribution Record Date and Distribution Date.......... 19
SECTION 3.02. The Agent............................................... 20
SECTION 3.03. The Distribution........................................ 20
SECTION 3.04. Contract Provisions..................................... 20
Page
ARTICLE IV
Access to Information
SECTION 4.01. Provision of Corporate Records.......................... 20
SECTION 4.02. Access to Information................................... 21
SECTION 4.03. Reimbursement; Records Retention........................ 21
SECTION 4.04. Witness Services........................................ 21
SECTION 4.05. Confidentiality......................................... 22
ARTICLE V
Dispute Resolution
SECTION 5.01. Dispute Resolution...................................... 23
ARTICLE VI
Insurance
SECTION 6.01. Coverage................................................ 24
SECTION 6.02. Claims Based Upon Pre-Distribution Date Injury; Waiver.. 25
SECTION 6.03. Administration.......................................... 27
SECTION 6.04. Insurance Proceeds...................................... 27
SECTION 6.05. Retrospectively Rated Policies.......................... 27
SECTION 6.06. Agreement for Waiver of Conflict and Shared Defense..... 28
SECTION 6.07. Cooperation............................................. 28
ARTICLE VII
Indemnification
SECTION 7.01. Indemnification......................................... 28
SECTION 7.02. Insurance Matters....................................... 29
SECTION 7.03. Procedures for Indemnification.......................... 29
SECTION 7.04. Indemnification Payments................................ 32
SECTION 7.05. Other Adjustments....................................... 32
SECTION 7.06. Consolidation, Merger, Transfer, or Lease............... 32
SECTION 7.07. Survival................................................ 33
ii
Page
ARTICLE VIII
Miscellaneous
SECTION 8.01. Conditions to Obligations............................... 33
SECTION 8.02. Exhibits and Schedules; Interpretation.................. 34
SECTION 8.03. Entire Agreement........................................ 35
SECTION 8.04. Ancillary Agreements ................................... 35
SECTION 8.05. Counterparts............................................ 35
SECTION 8.06. Survival of Agreements.................................. 35
SECTION 8.07. Expenses................................................ 35
SECTION 8.08. Notices................................................. 35
SECTION 8.09. Waivers................................................. 36
SECTION 8.10. Amendments.............................................. 36
SECTION 8.11. Assignment.............................................. 36
SECTION 8.12. Successors and Assigns.................................. 36
SECTION 8.13. Termination............................................. 36
SECTION 8.14. Subsidiaries............................................ 37
SECTION 8.15. Third Party Beneficiaries............................... 37
SECTION 8.16. Attorney Fees........................................... 37
SECTION 8.17. Title and Headings...................................... 37
SECTION 8.18. Exhibits and Schedules.................................. 37
SECTION 8.19. Specific Performance.................................... 37
SECTION 8.20. Governing Law........................................... 38
SECTION 8.21. Consent to Jurisdiction................................. 38
SECTION 8.22. Severability............................................ 38
EXHIBITS
Exhibit A - Form of Arch Amended and Restated
Articles of Incorporation
Exhibit B - Form of Arch By-laws
Exhibit C - Form of Arch Rights Agreement
SCHEDULES
Schedule 1.01(a) - Real Estate
Schedule 1.01(b) - Subsidiaries
Schedule 1.01(c) - Employee Matters
Schedule 1.01(d) - Retained Assets
Schedule 1.01(e) - Retained Businesses
Schedule 1.01(f) - Litigation
Schedule 1.01(g) - Certain Contractual Liabilities
Schedule 1.01(h) - Environmental
iii
Schedule 1.01(i) - Certain Excluded Liabilities
Schedule 1.01(j) - Arch Product Lines
Schedule 2.08 - Guarantees
Schedule 3.04 - Contract Provisions
iv
DISTRIBUTION AGREEMENT dated as of February 1, 1999,
between XXXX CORPORATION, a Virginia corporation ("Olin"),
and ARCH CHEMICALS, INC., a Virginia corporation ("Arch").
WHEREAS, the Board of Directors of Olin has deter mined to
distribute to the holders of shares of Common Stock, par value $1 per
share, of Olin (the "Olin Common Stock") all the outstanding shares of
Common Stock, par value $1 per share, of Arch (the "Arch Common Shares");
WHEREAS, it is the intention of the parties that the Distribution
(as defined below) will be a tax-free transaction pursuant to Sections 355
and 368(a)(1)(D) of the Code (as defined below), such that no gain or loss
shall be recognized by the shareholders of Olin for federal income tax
purposes as a result of the Distribution; and
WHEREAS, it is desirable to allocate and assign responsibility
for various matters affecting the activities of Arch and to set forth the
principal corporate trans actions required to effect such distribution and
other agreements that will govern certain other matters following the
Distribution.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereto
hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"Action" shall mean any claim, action, order, suit, arbitration,
inquiry, proceeding or investigation by or before any court, any
governmental or other regulatory or administrative official, agency, body
or commission or any arbitration tribunal, including any claims or contract
disputes concerning any governmental contract.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indi-
rectly through one or more intermediaries, controls or is controlled by or
is under common control with the person specified.
"Agent" shall mean ChaseMellon Shareholder Services, L.L.C.
"Agreement" shall mean this Distribution Agreement.
"Ancillary Agreements" shall mean all of the written agreements,
instruments, assignments or other written arrangements (other than this
Agreement) entered into in connection with the transactions contemplated
hereby, including (i) the Tax Sharing Agreement; (ii) the Chlor-Alkali
Supply Agreement; (iii) the Charleston Services Agreement; (iv) the
Covenant Not to Compete Agreement; (v) the Intellectual Property Transfer
and License Agree ment; (vi) the Transition Services Agreement; (vii) the
International Transition Services Agreements; (viii) the Trade Name License
Agreement; (ix) the Employee Benefits Agreement; (x) the Information
Technology Services Agreement; (xi) the Novation Agreements; (xii) the Lake
Xxxxxxx Operating Agreement; (xiii) the Charleston Operating Agreement;
(xiv) the Hydrazine Operating Agreement; (xv) the XxXxxxxx Services
Agreement; (xvi) the Sublease; and (xvii) the International Transfer
Agreements.
"Arch Assets" shall mean, collectively, all the Assets of Olin
and its Subsidiaries primarily related to the Arch Business, including: (i)
all Assets included on the Arch Balance Sheet or the accounting records
supporting the Arch Balance Sheet, and all Assets acquired between
September 30, 1998 and the Distribution Date which would have been included
on the Arch Balance Sheet had they been owned on September 30, 1998; (ii)
all Assets primarily related to the Arch Business, which are owned, leased,
licensed or held by Olin or Arch or any of their respective Affiliates on
the Distribution Date; (iii) the real property (including the buildings,
fixtures and improvements located thereon) listed on Schedule 1.01(a); (iv)
all of the outstanding shares of all classes of capital stock of the
Subsidiaries listed on Schedule 1.01(b); (v) subject to Section 2.01(d),
the Assigned Contracts; (vi) those books and records to be delivered to
Arch and rights of access to other books and records as provided in Article
IV of this Agreement; (vii) the rights of Arch under the Company Policies
as provided in Article VI of this Agreement; (viii) subject to Section
6.02(d), all rights, benefits and privileges under the Xxxx Policies; (ix)
any pension Assets, pension funds or other Assets expressly contemplated to
be
transferred, licensed or otherwise made available to Arch pursuant to the
Employee Benefits Agreement or any of the other Ancillary Agreements; and
(x) the Intellectual Property that is to be transferred to Arch pursuant to
the Intellectual Property Transfer and License Agreement, subject to the
limitations set forth in such agreement; provided, however, that none of
the Assets set forth on Schedule 1.01(d) shall constitute Arch Assets.
"Arch Balance Sheet" shall mean the combined balance sheet of
Arch as of September 30, 1998, as set forth in the Information Statement.
"Arch Business" shall mean the specialty chemical businesses of
Olin, which includes (i) the microelectronic chemicals business, (ii) the
water chemicals business (which includes, among other things, Water
Treatment) and (iii) the performance chemicals business, in each case, as
conducted by Olin and its Subsidiaries as of the Distribution Date and as
described more fully in the Information Statement; provided, however, that
none of the businesses set forth on Schedule 1.01(e) shall constitute an
Arch Business.
"Arch Division Employee" shall mean any individual (x) who (i)
becomes an active employee of Arch at or following the Distribution Date on
its payroll and (ii) at all times prior to the Distribution Date employed
by Olin was employed solely as a division employee in the Arch Business and
never as an Xxxx Corporate Employee or (y) who (i) is not employed by Olin
or Arch at or following the Distribution Date and (ii) at all times prior
to the Distribution Date for the period of time that such individual was
employed by Olin, was employed by Olin solely as a division employee in the
Arch Business and never as an Xxxx Corporate Employee.
"Arch Liabilities" shall mean the following Liabilities, in each
case excluding the Excluded Liabilities: (i) all the Liabilities of Arch
and its Subsidiaries under this Agreement and any of the Ancillary
Agreements; (ii) all the Liabilities (other than Liabilities in respect of
(w) Environmental Matters, (x) Pending Litigation Matters, (y) Disability
Matters and (z) Employment Matters) of the parties hereto or their
respective Subsidiaries arising after the Distribution Date out of or in
connection with or otherwise relating to the activities, business,
operations, status, management or conduct before, on or after the
Distribution Date of the Arch Business or the Arch Assets; (iii) all the
Liabilities set forth on the Arch Balance Sheet (or reflected in the notes
thereto), and Liabilities incurred by Olin or Arch or
any of their Affiliates between September 30, 1998 and the Distribution
Date as and to the extent they would have been included on the Arch Balance
Sheet had they been incurred or arisen on or prior to September 30, 1998;
(iv) all Liabilities under the Credit Agreement; (v) all Liabilities
relating to the Pending Litigation Matters set forth on Schedule 1.01(f);
(vi) the Liabilities set forth on Schedule 1.01(g); (vii) the Liabilities
set forth on Schedule 1.01(h); (viii) the Liabilities specifically
allocated to Arch pursuant to the Employee Benefits Agreement; (ix) the
Liabilities in respect of Actions relating to Disability Matters asserted
after the Distribution Date by any former Olin employees whose long-term
disability obligations are assumed by Arch under the Employee Benefits
Agreement; (x) the Liabilities, if any, in respect of Actions relating to
Employment Matters asserted after the Distribution Date involving claims
made by an Arch Division Employee (other than an individual listed in
Schedule 1.01(c)) regarding an action or inaction on the part of another
Arch Division Employee; and (xi) the Liabilities identified as constituting
Arch Liabilities on Schedule 1.01(c).
"Arch Off-Site Disposal Matter" shall mean the disposal,
arrangement for disposal or transportation by Olin, its Subsidiaries or
toll manufacturers for any of them, prior to the Distribution Date, of
Hazardous Materials of the Arch Business at or to a landfill, dump, surface
impoundment or other surface location (excluding any location on or at the
facilities or properties of Olin or Arch) that, as between Olin and Arch,
is being used exclusively by Arch, its Subsidiaries or toll manufacturers
(acting in connection with the Arch Business) for any of them at or after
the Distribution Date and had been used exclusively in connection with the
Arch Business at all times prior to the Distribution Date.
"Arch Product Lines" shall have the meaning assigned to such term
on Schedule 1.01(j).
"Arch Properties" shall mean the land, buildings and improvements
either owned or leased by Arch or any of its Subsidiaries (including
property being used by a person who is a toll manufacturer for Arch or any
of its Subsidiaries), in each case immediately following the Distribution
Date or which is transferred to Arch or any of its Subsidiaries in
connection with the Distribution, other than the Arch Shared Sites and Arch
Sites.
"Arch Shared Sites" shall mean the property owned or leased by
Arch immediately following the Distribution
Date located at (i) Lake Charles, Louisiana, (ii) Xxxxxx ston, Tennessee
and (iii) XxXxxxxx, Alabama, in each case, operated in connection with the
Arch Business.
"Arch Sites" shall mean (i) the Doe Run plant in Xxxxxxxxxxx,
Kentucky, (ii) the B.V. Swords plant in Dublin, Ireland, (iii) the Aqua
Chlor HTH plant in Chloorkop, South Africa and (iv) the Biocides plant
(including the quarry) in Rochester, New York.
"Articles" shall mean the Amended and Restated Articles of
Incorporation of Arch, substantially in the form attached hereto as Exhibit
A.
"Asset" shall mean any and all assets and properties, tangible or
intangible, real or personal, including the following: (i) cash, notes and
accounts and notes receivable (whether current or non-current); (ii)
certificates of deposit, banker's acceptances, stock, debentures, evidences
of indebtedness, certificates of interest or participation in
profit-sharing agreements, collateral-trust certificates, preorganization
certificates or subscriptions, transferable shares, investment contracts,
voting-trust certificates, fractional undivided interests in oil, gas or
other mineral rights, puts, calls, straddles, options and other securities
of any kind; (iii) intangible property rights, inventions, discoveries,
know-how, United States and foreign patents and patent applications, trade
secrets, confidential information, registered and unregistered trademarks,
service marks, service names, trade styles and trade names and associated
goodwill, statutory, common law and registered copyrights, applications for
any of the foregoing; rights to use the foregoing and other rights in, to
and under the foregoing; (iv) rights under leases, contracts, licenses,
permits, distribution arrange ments, sales and purchase agreements, other
agreements and business arrangements; (v) real estate and buildings and
other improvements thereon; (vi) leasehold improvements, fixtures, trade
fixtures, machinery, equipment (including transportation and office
equipment), tools, dies and furniture; (vii) office supplies, production
supplies, spare parts, other miscellaneous supplies and other tangible
property of any kind; (viii) computer equipment and soft xxxx; (ix) raw
materials, work-in-process, finished goods, consigned goods and other
inventories; (x) prepayments or prepaid expenses; (xi) claims, causes of
action, choses in action, rights under express or implied warranties,
rights of recovery and rights of setoff of any kind; (xii) the rights to
receive mail, payments on accounts receivable and other communications;
(xiii) lists of customers, records pertaining to customers and accounts,
personnel records,
lists and records pertaining to customers, suppliers and agents, and books,
ledgers, files and business records of every kind; (xiv) advertising
materials and other printed or written materials; (xv) goodwill as a going
concern and other intangible properties; (xvi) employee contracts,
including any rights thereunder to restrict an employee from competing in
certain respects; and (xvii) licenses and authorizations issued by any
governmental authority.
"Assigned Contract" shall mean (x) any Contract that in Olin's
sole judgment relates exclusively to the Arch Business ("Exclusive Assigned
Contracts") and (y) with respect to any Contract that relates, but does not
in Olin's sole judgment relate exclusively, to the Arch Business ("Partial
Assigned Contracts"), the portion, if any, of such Partial Assigned
Contract that, in Olin's sole judgment, relates to the Arch Business (the
"Arch Portion").
"By-laws" shall mean the By-laws of Arch, substantially in the
form attached hereto as Exhibit B.
"Charleston Services Agreement" shall mean the Charleston
Services Agreement dated as of February 8, 1999, between Olin and Arch.
"Charleston Operating Agreement" shall mean the Operating
Agreement - Charleston Steam Generating Facilities dated as of February 8,
1999, between Olin and Arch.
"Chlor-Alkali Supply Agreement" shall mean the Chlor-Alkali
Supply Agreement dated as of February 8, 1999, between Olin and Arch.
"Claims Administration" shall mean (i) the processing of claims
made under Company Policies and Xxxx Policies, including the reporting of
claims and occurrences to the appropriate insurance carriers and the
collection of the proceeds of such policies, (ii) in the case of the Arch
Business, the reporting to Olin of any losses or claims which may cause the
per-occurrence deductible or self-insured retention or limits of any
Company Policy to be exceeded and (iii) in the case of the Xxxx Business,
the reporting to Arch of any loss or claim asserted by Olin under the Xxxx
Policies.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and the Treasury regulations promulgated thereunder, including any
successor legislation.
"Commission" shall mean the Securities and Exchange Commission.
"Company Policies" shall mean all Policies, current or past,
under which Olin or any Subsidiary, Affiliate or predecessor of Olin is a
named insured; provided, however, that Company Policies shall not include
the Xxxx Policies.
"Contract" shall mean a contract, agreement, lease or commitment
of Olin or any of its Subsidiaries, in each case, entered into prior to the
Distribution Date.
"Covenant Not to Compete Agreement" shall mean the Covenant Not
to Compete Agreement dated as of February 8, 1999, between Olin and Arch.
"Credit Agreement" shall mean, collectively, (i) the 364-Day
Credit Agreement dated as of January 27, 1999, among Arch, Olin, the
Lenders party thereto, Bank of America, National Trust and Savings
Association, as Syndication Agent, Wachovia Bank, N.A., as Documentation
Agent, The Chase Manhattan Bank, as Administrative Agent and Chase
Securities Inc., as Arranger and (ii) the Five-Year Credit Agreement dated
as of January 27, 1999 among Arch, Olin, the Lenders party thereto, Bank of
America, National Trust and Savings Association, as Syndication Agent,
Wachovia Bank, N.A., as Documentation Agent, The Chase Manhattan Bank, as
Administrative Agent and Chase Securities Inc., as Arranger.
"Disability Matters" shall mean matters relating to the
eligibility, qualification or payment of long-term disability benefits by
Olin or its Subsidiaries.
"Distribution" shall have the meaning specified in Section 3.03.
"Distribution Date" shall mean February 8, 1999, or such other
date as may hereafter be determined by the Olin Board as the date on which
the Distribution shall be deemed effective.
"Distribution Record Date" shall mean February 1, 1999, or such
other date as may hereafter be determined by the Olin Board as the record
date for the Distribution.
"Employee Benefits Agreement" shall mean the Employee Benefits
Allocation Agreement dated as of February 8, 1999, between Olin and Arch.
"Employment Matters" shall mean any and all claims relating to
employment discrimination or sexual harassment matters including but not
limited to claims of wrongful
discharge or claims of discriminatory treatment based upon any one or
combination of the factors of sex, race, religion, sexual orientation,
handicap or national origin, arising under federal, state or local law,
whether such claims arise due to common law (whether arising in tort or
contract) or by constitution, statute or ordinance.
"Environmental Laws" shall mean any and all applicable treaties,
laws, regulations, enforceable requirements, binding determinations,
orders, decrees, judgments, injunctions, permits, approvals,
authorizations, licenses, variances, permissions, notices or binding
agreements issued, promulgated or entered into at any time by any
Governmental Entity, relating to the environment, preservation or
reclamation of, or damage to, natural resources, or to the management,
release, threatened release of, or exposure to, Hazardous Materials.
"Environmental Matters" shall mean (i) in connection with any
Environmental Law, any noncompliant condition existing at or prior to the
Distribution Date of records, permits, filings, notifications, facilities
or equipment, (ii) in connection with any Environmental Law, any condition
of, or substances, facilities or equipment in or under the soil, surface
water or groundwater existing at or prior to the Distribution Date which
has required, is requiring or may in the future require investigation,
mitigation, remediation, monitoring or cleanup or (iii) Third Party
Exposure Claim.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Liabilities" shall mean (i) any Liabilities related to
Assets of Olin and its Subsidiaries that do not constitute Arch Assets
(except as otherwise expressly set forth herein), (ii) all Liabilities
arising out of, in connection with, or relating to (A) the Olin Sites or
the Olin Retained Shared Site Environmental Liabilities, (B) the management
or conduct before, on or after the Distribution Date of the Xxxx Business
or (C) the historical and no longer active businesses of Olin and its
Subsidiaries and (iii) the Liabilities set forth on Schedule 1.01(i).
"Form 10" shall mean the registration statement on Form 10 filed
by Arch with the Commission to effect the registration of the Arch Common
Shares under the Exchange Act, as such registration statement may be
amended from time to time.
"Hazardous Materials" shall mean all explosive or regulated
radioactive materials, hazardous or toxic materials, substances, wastes or
chemicals, petroleum (including crude oil or any fraction thereof),
asbestos or asbestos containing materials, and all other materials or
chemicals regulated pursuant to any Environmental Law.
"Xxxx" shall mean Xxxxxx X. Xxxx Chemical Corporation.
"Xxxx Policies" shall mean all Policies issued to Xxxx.
"Hydrazine Operating Agreement" shall mean the Operating
Agreement - Hydrazine Blending Facility dated as of February 8, 1999,
between Olin and Arch.
"Indemnifiable Losses" shall have the meaning specified in
Section 7.01.
"Information Statement" shall mean the Information Statement
dated January 22, 1999, sent to the holders of shares of Olin Common Stock
in connection with the Distribution, including any amendment or supplement
thereto.
"Information Technology Services Agreement" shall mean the
Information Technology Services Agreement dated as of February 8, 1999,
between Olin and Arch.
"Insured Claims" shall mean those Liabilities that, individually
or in the aggregate, are covered within the terms and conditions of any
Company Policy or Xxxx Policy, whether or not subject to deductibles,
uncollect ability or retrospectively-rated premium adjustments, but only to
the extent that such Liabilities are within applicable Company Policy or
Xxxx Policy limits, including aggregates.
"Intellectual Property" shall mean (i) patents (including all
reissues, divisions, continuations and extensions thereof), patent licenses
and patent applica tions, (ii) trademarks, trademark rights, trademark
licenses, trademark registrations, servicemarks, trademark registration
applications (filed or unfiled) and trade names and (iii) copyrights and
copyright licenses.
"Intellectual Property Transfer and License Agreement" shall mean
the Intellectual Property Transfer and License Agreement dated as of
February 8, 1999, between Olin and Arch.
"International Transfer Agreements" shall mean those certain
International Transfer Agreements each dated as of February 8, 1999,
between Olin and Arch, and relating to Brazil, Canada, South Korea and
Singapore.
"International Transition Services Agreements" shall mean the
Transition Services Agreements-International dated as of February 8, 1999,
between Olin or its Subsi diaries on the one hand, and Arch or its
Subsidiaries on the other hand.
"Lake Xxxxxxx Operating Agreement" shall mean the Operating
Agreement - Lake Xxxxxxx Caustic Terminal dated as of February 8, 1999,
between Olin and Arch.
"Liabilities" shall mean any and all debts, lia bilities and
obligations, absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising,
including those debts, liabilities and obligations arising under any law,
rule, regulation, Action, threatened Action, order or consent decree of any
court, any governmental or other regulatory or administrative agency or
commission or any award of any arbitration tribunal, and those arising
under any contract, guarantee, commitment or undertaking.
"XxXxxxxx Services Agreement" shall mean the Services Agreement
for A50 Plant at XxXxxxxx dated as of February 8, 1999, between Olin and
Arch.
"Novation Agreements" shall mean the Novation Agreements dated as
of February 8, 1999, among Olin, Arch and the United States.
"NYSE" shall mean The New York Stock Exchange, Inc.
"Olin Board" shall mean the Board of Directors of Olin.
"Xxxx Business" shall mean the businesses of any division,
Subsidiary or investment of Olin (other than the Arch Business) managed or
operated prior to the Distribution Date by any such business entity.
"Xxxx Corporate Employee" shall mean an individual who was at any
time, a corporate employee or on the "corporate" payroll of Olin.
"Olin Liabilities" shall mean collectively, (i) all the
Liabilities of Olin and its Subsidiaries
(excluding Arch and its Subsidiaries) under this Agreement and any of the
Ancillary Agreements, (ii) Excluded Liabilities, (iii) the Liabilities
identified as constituting Olin Liabilities on Schedule 1.01(c) and (iv)
all the Liabilities (whenever arising whether prior to, at or following the
Distribution Date) of the parties hereto or their respective Subsidiaries
that do not constitute Arch Liabilities.
"Olin Properties" shall mean all land, buildings and improvements
owned or leased by Olin or any of its Subsidiaries (including property
being used by a person who is a toll manufacturer for Olin or any of its
Subsidiaries) at any time other than the Arch Properties, Arch Shared Sites
or Arch Sites.
"Olin Retained Shared Site Environmental Liabilities" shall mean
all Liabilities in respect of those Environmental Matters that (i) are
known to Olin or any of its Subsidiaries at or prior to the Distribution
Date and relate to any Arch Shared Site or (ii) in the case of the Arch
Shared Site located in Lake Charles, Louisiana relate to the plant and
other assets sold to Bio-Lab, Inc.
"Olin Site" shall mean any site or location that is known to Olin
or any of its Subsidiaries at or prior to the Distribution Date to be or
have been the subject of any Environmental Matter other than the Arch Sites
and Arch Properties.
"Pending Litigation Matters" shall mean actual or threatened
litigation, investigations, claims or other legal matters that have been
asserted as of the Distribution Date against Olin and/or Arch or the
respective Subsidiaries of either of them.
"person" shall mean any natural person, corpora tion, business
trust, joint venture, association, company, partnership or government, or
any agency or political subdivision thereof.
"Policies" shall mean insurance policies and insurance contracts
of any kind (other than life and benefits policies or contracts), including
primary, excess and umbrella policies, commercial general liability
policies, fiduciary liability, environmental impairment, director and
officer, health, automobile, aircraft, property and casualty, workers'
compensation and employee dishonesty insurance policies, bonds and
self-insurance and captive insurance company arrangements, together with
the rights, benefits and privileges thereunder.
"Rights Plan" shall mean the Rights Agreement dated as of January
29, 1999, between Arch and ChaseMellon Shareholder Services, L.L.C., as
rights agent, substantially in the form attached hereto as Exhibit C.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Sublease" shall mean the Sublease dated as of February 1, 1999,
between Xxxx and Arch relating to the office space at 000 Xxxxxxx 0,
Xxxxxxx, Xxxxxxxxxxx.
"Subsidiary" shall mean any corporation, partner ship or other
entity of which another entity (i) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the Board of Directors (or
persons performing similar functions) (irrespective of whether at the time
any other class or classes of ownership interests of such corporation,
partnership or other entity shall or might have such voting power upon the
occurrence of any contingency) or (ii) is a general partner or an entity
performing similar functions (e.g., a trustee). For all purposes hereof,
the term "Subsidiary", when used to refer to Subsidiaries of Xxxx, shall be
deemed to include Arch and its Subsidiaries, unless the context otherwise
expressly specifies.
"Tax" shall mean all Federal, state, local and foreign taxes and
assessments, including all interest, penalties and additions imposed with
respect to such amounts.
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement
dated as of February 8, 1999, between Xxxx and Arch.
"Third Party Exposure Claim" shall mean a written claim by any
third party alleging personal injury or prop erty damage from, exposure to,
or the release, discharge or migration of, Hazardous Materials.
"Trade Name License Agreement" shall mean the Trade Name and
Trademark License Agreement dated as of February 8, 1999, between Xxxx and
Arch.
"Transition Services Agreement" shall mean the Services Agreement
dated as of February 8, 1999, between Xxxx and Arch.
"Water Treatment" shall have the meaning assigned to such term in
the Covenant Not to Compete Agreement.
ARTICLE II
Certain Transactions at or Prior to the Distribution;
Certain Covenants
SECTION 2.01. Certain Transactions. (a) Contribution and Transfer
of Assets to Arch. At or prior to the Distribution Date:
(i) Xxxx shall contribute to Arch the businesses and business
entities that are to comprise the Arch Business (to the extent they
are not owned by Arch or any of its Subsidiaries).
(ii) Xxxx shall, on behalf of itself and its Subsidiaries,
transfer to Arch effective as of the Distribution Date all of Olin's
and its Subsidiaries' right, title and interest in and to the Arch
Assets.
(b) Certain Transfers to Xxxx. At or prior to the Distribution
Date, Arch shall, on behalf of itself and its Subsidiaries, transfer to
Xxxx effective as of the Distribution Date, any Assets owned or held by
Arch or its Subsidiaries that do not constitute Arch Assets.
(c) Assumption and Satisfaction of Liabilities. Except as
otherwise specifically set forth in any Ancillary Agreement, from and after
the Distribution Date, (i) Xxxx shall, and shall cause its Subsidiaries to,
assume, pay, perform and discharge all Xxxx Liabilities, and (ii) Arch
shall, and shall cause its Subsidiaries to, assume, pay, perform and
discharge all Arch Liabilities.
(d) Transfer of Agreements; Consent. (i) Xxxx hereby agrees that
at or prior to the Distribution Date or as soon as reasonably practicable
thereafter, subject to the limitations set forth in this Section 2.01(d)
and the terms of the Ancillary Agreements, it will, and it will cause its
Subsidiaries (other than Arch or any of its Subsidiaries) to, assign,
transfer and convey to Arch or to one of Arch's designated Subsidiaries all
of Olin's and each such Sub sidiary's respective right, title and interest
in and to all Exclusive Assigned Contracts. Arch hereby agrees that at or
prior to the Distribution Date or as soon as reasonably practicable
thereafter, subject to the limitations set forth in this Section 2.01(d)
and the terms of the Ancillary Agreements, it will, and will cause its
Subsidiaries to, assign, transfer and convey to Xxxx or to one of Olin's
designated Subsidiaries (other than Arch or its Subsidiaries) all of Arch's
and each such Subsidiary's
respective right, title and interest in all Contracts that do not
constitute Assigned Contracts.
(ii) Subject to the provisions of this Section 2.01(d) and the
terms of the Ancillary Agreements, with respect to Partial Assigned
Contracts, on or prior to the Distribution Date or as soon as reasonably
practicable thereafter (A) Xxxx shall use reasonable efforts to cause each
such Partial Assigned Contract to be divided into separate contracts for
each of the Xxxx Business and the Arch Business or (B) if such a division
is not possible, Xxxx shall cause the Arch Portion of such Partial Assigned
Contract to be assigned to Arch, or otherwise to cause the same economic
and business terms to govern with respect to such Arch Portion (by
subcontract, sublicense or otherwise).
(iii) Notwithstanding anything in this Agreement to the contrary,
this Agreement shall not constitute an agree ment to assign any Contract,
in whole or in part, or any rights thereunder if the agreement to assign or
attempt to assign, without the consent of a third party, would consti tute
a breach thereof or in any way adversely affect the rights of the assignee
(the "Assignee") thereof. Until such consent is obtained, or if an
attempted assignment thereof would be ineffective or would adversely affect
the rights of any party hereto so that the Assignee would not, in fact,
receive all such rights, the parties will cooperate with each other in any
alternative arrangement designed to provide for the Assignee the benefits
of, and to permit the Assignee to assume liabilities under, any such
Contract. The parties hereto shall use commercially reasonable efforts to
obtain required consents to assignment of Contracts hereunder.
(e) Stock Issuance to Xxxx. At or prior to the Distribution Date,
Arch shall issue to Xxxx a whole number of newly issued, fully paid and
non-assessable Arch Common Shares, in exchange for the contribution of the
Arch Business and the Arch Assets, required to effect the Distribution.
(f) Charter; By-Laws; Rights Plan. At or prior to the
Distribution Date, all necessary action shall have been taken to provide
for the adoption by Arch of the Articles, the By-laws and the Rights Plan.
(g) Directors. At or prior to the Distribution Date, (i) Xxxx, as
the sole shareholder of Arch, shall have taken all necessary action to
elect, or cause to be elected, to the Board of Directors of Arch the
individuals identified in the Information Statement as directors of Arch,
such
elections to be effective on or prior to 11:00 p.m. on February 7, 1999 and
(ii) once elected, the Board of Directors of Arch shall select such other
individuals to be designated as directors of Arch as the Board of Directors
of Arch shall decide.
(h) Registration and Listing. Prior to the Distribution Date:
(i) Xxxx and Arch shall prepare, and Arch shall file with the
Commission, the Form 10, which includes or incorporates by reference
the Information Statement. Xxxx and Arch shall use reasonable efforts
to cause the Form 10 to become effective under the Exchange Act as
promptly as reasonably practicable.
(ii) Xxxx and Arch shall prepare, and Arch shall file and seek to
make effective, an application to permit listing of the Arch Common
Shares on the NYSE, subject to official notice of issuance.
(iii) Xxxx and Arch shall prepare, and Xxxx shall mail to the
holders of shares of Xxxx Common Stock on the Distribution Record
Date, the Information State ment, which shall set forth appropriate
disclosure concerning Arch, the Distribution and other matters.
(iv) Xxxx and Arch shall use reasonable efforts to take all such
action as may be necessary or appropriate under the state securities
or blue sky laws in connec tion with the transactions contemplated by
this Agreement and the Ancillary Agreements.
(v) Xxxx and Arch shall cooperate in preparing, filing with the
Commission and causing to become effective any registration statements
or amendments thereof which are necessary or appropriate in order to
effect the transactions contemplated hereby or to reflect the
establishment of, or amendments to, any employee benefit and other
plans contemplated by the Employee Benefits Agreement requiring
registration under the Securities Act.
(i) Certain Licenses and Permits. At or prior to the Distribution
Date or as soon as reasonably practicable thereafter, all transferrable
licenses, permits and authori zations issued by governmental or regulatory
entities which relate to the Arch Business but which are held in the name
of Xxxx or any of its Subsidiaries (other than Arch or any of its
Subsidiaries), or any of their respective employees, officers, directors,
stockholders, agents, or otherwise, on
behalf of Arch (or its Subsidiaries) shall be duly and validly transferred
by Xxxx to Arch (or its Subsidiaries).
(j) Lease Amendments. At or prior to the Distribution Date,
amendments shall be executed to each of the leases to which Xxxx is a party
and which provide for the lease of real or personal property representing
Arch Assets or relating to the Arch Business which amendments will provide
for the substitution of Arch for Xxxx as lessee or lessor, as the case may
be, and to the extent agreeable to the other party to the lease excuse Xxxx
from any further Liabilities or responsibilities with respect thereto.
(k) Other Transactions. At or prior to the Distribution Date,
Xxxx and Arch shall have consummated those other transactions in connection
with the Distribution that are contemplated by the Information Statement
and not specifically referred to in subparagraphs (a)-(j) above.
SECTION 2.02. Financing. Each of the parties hereto shall take
all actions necessary to arrange for the Credit Agreement and to cause Arch
to assume Olin's rights and obligations under the Credit Agreement
immediately prior to the Distribution Date, provided that Xxxx shall have
no obligation to guarantee or otherwise provide credit support or
enhancement for the obligations of Arch under the Credit Agreement.
SECTION 2.03. Operations in Ordinary Course. Each of Xxxx and
Arch agrees that, except as otherwise provided in any Ancillary Agreement
or this Agreement, during the period from the date of this Agreement
through the Distribution Date, it will, and will cause their respective
Subsidiaries during such period to, conduct its business in a manner
substantially consistent with current and past operating practices and in
the ordinary course, including with respect to the payment and
administration of accounts payable and the administration of accounts
receivable, the purchase of capital Assets and equipment and the management
of inventories.
SECTION 2.04. Capital Structure. Each of Xxxx and Arch agrees to
use commercially reasonable efforts to achieve both an allocation of
consolidated indebtedness of Xxxx and a capital structure of Arch which
substantially reflects the capital structure after the Distribution of Arch
set forth in the Information Statement under the heading "Capitalization".
SECTION 2.05. Resignations. Xxxx shall cause all its directors,
officers and employees to resign, effective as of February 7, 1999, from
all positions as officers of Arch or as officers or directors of any
Subsidiary of Arch in which they serve. Xxxx shall also cause the directors
of Xxxx referred to in the Information Statement to resign as directors of
Xxxx, effective as of February 7, 1999, Arch shall cause all its employees
to resign, effective as of February 7, 1999, from all positions as officers
of Xxxx or as officers or directors of any Subsidiary of Xxxx (other than
Arch or its Subsidiaries) in which they serve.
SECTION 2.06. Further Assurances. In case at any time after the
Distribution Date any further action is reasonably necessary or desirable
to carry out the purposes of this Agreement and the Ancillary Agreements,
the officers of each party to this Agreement shall take all such necessary
action. Without limiting the foregoing, Xxxx and Arch shall use
commercially reasonable efforts to obtain all consents and approvals, to
enter into all amendatory agree ments and to make all filings and
applications that may be required for the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements, including all
applicable governmental and regulatory filings and novations.
SECTION 2.07. No Representations or Warranties. Each of the
parties hereto understands and agrees that, except as otherwise expressly
provided herein or in any Ancillary Agreement, no party hereto is, in this
Agreement, in any Ancillary Agreement or in any other agreement or document
contemplated by this Agreement or otherwise, making any representation or
warranty whatsoever, including as to title, value or legal sufficiency. It
is also agreed and understood that all Assets either transferred to or
retained by the parties, as the case may be, shall be "as is, where is" and
that (subject to Section 2.06) the party to which such Assets are to be
transferred hereunder shall bear the economic and legal risk that any
conveyances of such Assets shall prove to be insufficient or that such
party's or any of its Subsidiaries' title to any such Assets shall be other
than good and marketable and free from encumbrances. Similarly, each party
hereto understands and agrees that no party hereto is, in this Agreement,
in any Ancillary Agree ment or in any other agreement or document
contemplated by this Agreement or otherwise, representing or warranting in
any way that the obtaining of any consents or approvals, the execution and
delivery of any amendatory agreements and the making of any filings or
applications contemplated by this Agreement will satisfy the provisions of
any or all applicable agreements or the requirements of any or all appli-
cable laws or judgments, it being agreed and understood that the party to
which any Assets are transferred shall bear the economic and legal risk
that any necessary consents or approvals are not obtained or that any
requirements of laws or judgments are not complied with.
SECTION 2.08. Elimination of Guarantees. Except as otherwise
specified in any Ancillary Agreement, Xxxx and Arch shall use their
commercially reasonable efforts to have, on or prior to the Distribution
Date, or as soon as practicable thereafter, Xxxx and each of its
Subsidiaries (other than Arch or its Subsidiaries) removed as guarantor of
or obligor for any Arch Liability or Liabilities, including in respect of
those guarantees set forth on Schedule 2.08. To the extent that Xxxx or any
of its Subsidiaries (other than Arch or its Subsidiaries) cannot be removed
as guarantor of or obligor for any such Arch Liability or Liabilities, Arch
agrees that, notwithstanding any contrary provision contained in any
Novation Agreement referred to in Schedule 2.08, until such Arch Liability
or Liabilities shall have been discharged in full, Arch will take no
action, and will not permit any of its Subsidiaries to take any action,
which will have the effect of increasing the contingent liability or
exposure of Xxxx or any of its Subsidiaries (other than Arch or its
Subsidiaries) with respect to such Arch Liability or Liabilities without
Olin's prior written consent; provided, however, that with respect to any
guarantee arising in connection with any Novation Agreement referred to in
Schedule 2.08, Arch may modify (but not extend) the U.S. Government
contracts relating to such Novation Agreements without Olin's prior written
consent provided such modification is made in good faith and is
commercially reasonable and does not unreasonably increase Olin's
contingent liability or risk with respect thereto under such Novation
Agreement taking into account the facts and circumstances at the time of
the modification.
SECTION 2.09 Intercompany Accounts. All intercompany receivables,
payables and loans existing immediately prior to the Distribution between
Xxxx and its Subsidiaries (other than Arch or its Subsidiaries), on the one
hand, and Arch and its Subsidiaries, on the other hand, shall be deemed
canceled, settled and discharged immediately prior to the Distribution.
SECTION 2.10. Transfers Not Effected Prior to Distribution Date;
Transfers Deemed Effective as of Distribution Date. To the extent that any
transfers contemplated by this Article II shall not have been consummated
at or prior to the Distribution Date, the parties shall cooperate to effect
such transfers as promptly
following the Distribution Date as shall be practicable. Nothing herein
shall be deemed to require the transfer of any Assets or the assumption of
any Liabilities which by their terms or operation of law cannot be
transferred; provided, however, that the parties hereto and their
respective Subsidiaries shall cooperate to seek to obtain any necessary
consents or approvals for the transfer of all Assets and Liabilities
contemplated to be transferred pursuant to this Article II. In the event
that any such transfer of Assets or Liabilities has not been consummated,
from and after the Distribution Date the party retaining such Asset or
Liability shall hold such Asset in trust for the use and benefit of the
party entitled thereto (at the expense of the party entitled thereto) or
retain such Liability for the account of the party by whom such Liability
is to be assumed pursuant hereto, as the case may be, and take such other
action as may be reasonably requested by the party to whom such Asset is to
be transferred, or by whom such Liability is to be assumed, as the case
may be, in order to place such party, insofar as is reasonably possible, in
the same position as would have existed had such Asset or Liability been
transferred as contemplated hereby. As and when any such Asset or Liability
becomes transferable, such transfer shall be effected forthwith. The
parties agree that, as of the Distribution Date, each party hereto shall be
deemed to have acquired complete and sole beneficial ownership over all of
the Assets, together with all rights, powers and privileges incident
thereto, and shall be deemed to have assumed in accordance with the terms
of this Agreement all of the Liabilities, and all duties, obligations and
responsibili ties incident thereto, which such party is entitled to acquire
or required to assume pursuant to the terms of this Agreement.
SECTION 2.11. Ancillary Agreements. At or prior to the
Distribution Date, each of Xxxx and Arch shall enter into, and/or (where
applicable) shall cause their respective Subsidiaries to enter into, the
Ancillary Agreements and any other agreements in respect of the
Distribution reasonably necessary or appropriate in connection with the
transactions contemplated hereby and thereby.
ARTICLE III
The Distribution
SECTION 3.01. Distribution Record Date and Distribution Date.
Subject to the satisfaction of the conditions set forth in Section 8.01(a),
the Xxxx Board
shall, in its sole discretion, establish the Distribution Record Date and
the Distribution Date and any appropriate procedures in connection with the
Distribution.
SECTION 3.02. The Agent. Prior to the Distribu tion Date, Xxxx
shall enter into an agreement with the Agent providing for, among other
things, the Distribution in accordance with this Article III.
SECTION 3.03. The Distribution. On or prior to the Distribution
Date, Xxxx shall deliver to the Agent, for the benefit of holders of record
of shares of Xxxx Common Stock, one or more stock certificates representing
all of the outstanding Arch Common Shares issued to Xxxx by Arch pursuant
to Section 2.01(e), and shall instruct the Agent to distribute through
direct registration (i.e., book-entry transfer), on or as soon as
practicable following the Distribution Date, such Arch Common Shares to
holders of record of shares of Xxxx Common Stock on the Distribution Record
Date on the basis of one Arch Common Share for every two shares of Xxxx
Common Stock (the "Distribution"). The Distribution shall be effective at
12:01 a.m. on the Distribution Date. Xxxx and Arch shall provide the Agent
with all information and documents necessary to effect the direct
registration of Arch Common Shares.
SECTION 3.04. Contract Provisions. Following the Distribution
Date, Arch agrees to be bound by certain provisions of the Contracts set
forth in Schedule 3.04 to the extent such provisions are applicable to
Arch.
ARTICLE IV
Access to Information
SECTION 4.01. Provision of Corporate Records. (a) After the
Distribution Date, upon the prior written request by Arch for specific and
identified agree ments, documents, books, records or files, including
computer files, microfiche, tape recordings and photographs (collectively,
"Records"), relating to or affecting Arch, Xxxx shall arrange, as soon as
reasonably practicable following the receipt of such request, for the
provision of appropriate copies of such Records (or the originals thereof
if the party making the request has a reasonable need for such originals)
in the possession of any member of Xxxx or any of its Subsidiaries, but
only to the extent such items are not already in the possession of the
requesting party.
(b) After the Distribution Date, upon the prior written request
by Xxxx for specific and identified Records relating to or affecting Xxxx,
Arch shall arrange, as soon as reasonably practicable following the receipt
of such request, for the provision of appropriate copies of such Records
(or the originals thereof if the party making the request has a reasonable
need for such originals) in the possession of any member of Arch or any of
its Subsidiaries, but only to the extent such items are not already in the
possession of the requesting party.
SECTION 4.02. Access to Information. From and after the
Distribution Date, Xxxx and Arch shall afford to the other and its
authorized accountants, counsel and other designated representatives
(including governmental repre sentatives and auditors in connection with
governmental claims or audits) reasonable access during normal business
hours, subject to appropriate restrictions for classified, privileged or
confidential information, to the personnel, properties, books and records
of such party and its Subsidiaries insofar as such access is reasonably
required by the other party.
SECTION 4.03. Reimbursement; Records Retention. (a) Except to the
extent otherwise contemplated by any Ancillary Agreement, a party providing
Records, access to information or witness services, as the case may be, to
the other party under this Article IV shall be entitled to receive from the
recipient, upon the presentation of invoices therefor, payments for such
out-of-pocket amounts, relating to supplies, disbursements and other
out-of-pocket expenses as may be reasonably incurred in providing such
Records, access to information or witness services, as the case may be.
(b) The parties hereto shall comply with such document retention
policies as shall be established and agreed to in writing by their
respective authorized officers on or prior to the Distribution Date in
respect of Records and related matters.
SECTION 4.04. Witness Services. At all times from and after the
Distribution Date, each of Xxxx and Arch shall use commercially reasonable
efforts to make available to each other, upon written request, its and its
Subsidiaries' officers, directors, employees and agents as witnesses to
the extent that (i) such persons may reasonably be required in connection
with the prosecution or defense of any Action in which the requesting party
may from time to time be involved and (ii) there is no conflict in the
Action between the requesting party and itself. The employing
party agrees that such witness shall be made available to the requesting
party upon reasonable notice to the same extent that such employing party
would have made such witness available if the Distribution had not
occurred.
SECTION 4.05. Confidentiality. Each of Xxxx and its Subsidiaries
and Arch and its Subsidiaries shall not use or permit the use of (without
the prior written consent of the other) and shall hold, and shall cause its
consultants and advisors to hold, in strict confidence, all information
concerning the other parties in its possession, its custody or under its
control (except to the extent that (A) such information has been in the
public domain or becomes part of the public domain through no fault of such
party, (B) such information has been later lawfully acquired from other
sources by such party without an obligation of confidence, (C) this
Agreement or any other Ancillary Agreement or any other agreement entered
into pursuant hereto permits the use or disclosure of such information, (D)
such information is requested by the Commission (i) to be provided supple
mentally to the Commission or (ii) to be provided in any document filed
with the Commission, provided, that in the case of this clause (ii), the
party providing such informa tion to the Commission shall first consult
with the other party prior to, but shall not be prohibited from making,
such disclosure or (E) such information is independently developed by such
party without reference to such informa tion) to the extent such
information (x) relates to the period up to the Distribution Date, (y)
relates to any Ancillary Agreement or (z) is obtained in the course of
performing services for the other party pursuant to any Ancillary
Agreement, and each party shall not (without the prior written consent of
the other) otherwise release or disclose such information to any other
person, except such party's auditors and attorneys, unless compelled to
disclose such information by judicial or administrative process or unless
such disclosure is required by law and such party has used commercially
reasonable efforts to consult with the other affected party or parties
prior to such disclosure. To the extent that a party hereto is compelled by
judicial or administrative process to disclose such information under
circumstances in which any evidentiary privilege would be available, such
party agrees to assert such privilege in good faith prior to making such
disclosure. Each party hereto agrees to consult with the other party in
connection with any such judicial or administrative process, including in
determining whether any privilege is available, and further agrees to allow
such party and its counsel to participate in any hearing or other
proceeding (including any appeal of an initial order to disclose) in
respect of such disclosure and assertion of privilege. Each of Xxxx
and Arch intends that the transactions contemplated hereby and by the
Ancillary Agreements and any transfer of information in connection
therewith shall not operate as a waiver of any potentially applicable
privilege.
ARTICLE V
Dispute Resolution
SECTION 5.01. Dispute Resolution. (a) In the event of a
controversy, dispute or claim arising out of, in connection with, or in
relation to the interpretation, performance, nonperformance, validity or
breach of this Agreement or otherwise arising out of, or in any way related
to this Agreement, including any claim based on contract, tort, statute or
constitution (collectively, "Agreement Disputes"), the General Counsels (or
their designees) of the relevant parties shall negotiate, commencing within
30 days of the occurrence of such Agreement Dispute, in good faith for a
reasonable period of time to settle such Agreement Dispute.
(b) If after such reasonable period such General Counsels (or
their designees) are unable to settle such Agreement Dispute (and in any
event after 60 days have elapsed from the time the relevant parties began
such negotiations), such Agreement Dispute shall be determined, at the
request of any relevant party, by arbitration conducted in New York City,
before and in accordance with the then-existing Rules for Commercial
Arbitration of the American Arbitration Association (the "Rules"), and any
judgment or award rendered by the arbitrator shall be final, binding and
nonappealable (except upon grounds specified in 9 U.S.C. ss.10(a) as in
effect on the date hereof), and judg ment may be entered by any state or
Federal court having jurisdiction thereof in accordance with Section 8.21
hereof. Unless the arbitrator otherwise determines, the pre-trial discovery
of the then-existing Federal Rules of Civil Procedure and the then-existing
Rules 46 and 47 of the Civil Rules for the United States District Court for
the Southern District of New York shall apply to any arbitration here
under. Any controversy concerning whether an Agreement Dispute is an
arbitrable Agreement Dispute, whether arbitra tion has been waived, whether
an assignee of this Agreement is bound to arbitrate, or as to the
interpretation of enforceability of this Article V shall be determined by
the arbitrator. The arbitrator shall be a retired or former judge of any
United States District Court or Court of Appeals or such other qualified
person as the relevant parties may agree to designate, provided such
individual has
had substantial professional experience with regard to settling commercial
disputes. The parties intend that the provisions to arbitrate set forth
herein be valid, enforceable and irrevocable. The designation of a situs
or a governing law for this Agreement or the arbitration shall not be
deemed an election to preclude application of the Federal Arbitration Act,
if it would be applicable. In his award the arbitrator shall allocate, in
his discretion, among the parties to the arbitration all costs of the
arbitration, including the fees and expenses of the arbitrator and
reasonable attorneys' fees, costs and expert witness expenses of the
parties. The undersigned agree to comply with any award made in any such
arbitration pro ceedings that has become final in accordance with the Rules
and agree to the entry of a judgment in any jurisdiction upon any award
rendered in such proceedings becoming final under the Rules. The arbitrator
shall be entitled, if appropriate, to award any remedy in such proceedings,
including monetary damages, specific performance and all other forms of
legal and equitable relief; provided, however, the arbitrator shall not be
entitled to award punitive damages.
ARTICLE VI
Insurance
SECTION 6.01. Coverage. (a) As of the Distribution Date, coverage
of Arch and its Subsidiaries shall cease under current Company Policies,
except as provided in this Article VI. From and after the Distribution
Date, Arch and its Subsidiaries will be responsible for obtaining and
maintaining insurance coverages for their own account. To the extent that
Arch bears or incurs Arch Liabilities arising from the activities of Xxxx
or its Subsidiaries prior to the Distribution Date, and which Arch
Liabilities are covered by Company Policies, it is the intention of the
parties that, without increasing or expanding the risks assumed by the
insurer, Arch will have the benefit of such insurance coverage after the
Distribution Date. No assignment pursuant to Section 6.02 is intended to
increase the liability of any insurer under a Company Policy, and Xxxx
shall be deemed to assign only such coverage as would have been available
to Xxxx in respect of the Arch Business if the Distribution had not
occurred.
(b) To the extent that Xxxx bears or incurs Xxxx Liabilities
arising from the activities of Xxxx prior to the Distribution Date, and
which Xxxx Liabilities are covered by Xxxx Policies, it is the intention of
the parties that,
without increasing or expanding the risks assumed by the insurer, Xxxx will
have the benefit of such insurance coverage after the Distribution Date. No
assignment pursuant to Section 6.02 is intended to increase the liability
of any insurer under a Xxxx Policy, and Arch shall be deemed to assign only
such coverage as would have been available in respect of the activities of
Xxxx if the Distribution had not occurred.
SECTION 6.02. Claims Based Upon Pre-Distribution Date Injury;
Waiver. (a) If (i) prior to the Distribution Date, any person has asserted
a claim or instituted a suit, action or proceeding against Xxxx or Arch, or
(ii) subse quent to the Distribution Date, any person shall assert a claim
or institute a suit, action or proceeding against Arch or any of its
Subsidiaries, in either case, with respect to any injury, loss, liability,
damage or expense incurred or claimed to have been incurred prior to the
Distribution Date in the course of or in connection with the conduct of the
Arch Business and which injury, loss, liability, damage or expense may
constitute an insured or insurable occurrence under one or more Company
Policies, Xxxx shall be deemed, without need of further documentation, to
assign to Arch or any of its Subsidiaries an interest in the relevant
Company Policies (unless such assignment would render Olin's coverage for
such occurrence thereunder void), subject to any limitations or obligations
of Arch contemplated by this Article VI, if necessary, and then only to the
extent necessary, to convey to Arch or any of its Subsidiaries rights of
indemnity and the right to be defended by or at the expense of the insurer,
with respect to any such claim, suit, action, proceeding, injury, loss,
liability, damage or expense; provided, however, that, with respect to
Company Policies for which Arch has payment obligations pursuant to Section
6.05 or otherwise, Arch and its Subsidiaries shall only have the rights set
forth under this Section 6.02(a) with respect to such Company Policies if
such payment obli gations have been satisfied by Arch.
(b) If (i) prior to the Distribution Date, any person has
asserted a claim or instituted a suit, action or proceeding against Xxxx,
or (ii) subsequent to the Distri bution Date, any person shall assert a
claim or institute a suit, action or proceeding against Xxxx, in either
case, with respect to any injury, loss, liability, damage or expense
incurred or claimed to have been incurred prior to the Distribution Date in
the course of or in connection with the activities of Xxxx and which
injury, loss, liability, damage or expense may constitute an insured or
insurable occurrence under one or more Xxxx Policies, Arch shall be deemed,
without need or further documentation, to assign to
Xxxx an interest in the relevant Xxxx Policies (unless such assignment
would render Arch's coverage for such occurrence thereunder void), subject
to any limitations or obligations of Xxxx contemplated by this Article VI,
if necessary, and then only to the extent necessary, to convey to Xxxx
rights of indemnity and the right to be defended by or at the expense of
the insurer, with respect to any such claim, suit, action, proceeding,
injury, loss, liability, damage or expense; provided, however, that, with
respect to Xxxx Policies for which Xxxx has payment obligations pursuant to
Section 6.05 or otherwise, Xxxx shall only have the rights set forth under
this Section 6.02(b) with respect to such Xxxx Policies if such payment
obligations have been satis fied by Xxxx.
(c) Xxxx shall at all times retain the Company Policies, together
with the rights, benefits and privileges thereunder, including the right to
invade or exhaust any Company Policy by submission of claims, settlement or
otherwise; provided, that the retention of the Company Policies by Xxxx is
not intended to limit, inhibit or preclude any right granted pursuant to
Section 6.02(a), and provided further that Section 6.02(a) is not intended
to limit, inhibit or preclude any rights, benefits or privi leges Xxxx may
have under Company Policies. Arch hereby specifically agrees that Xxxx, in
its sole discretion, may at any time and without the consent of Arch or any
of its Subsidiaries, grant a release, given in good faith, to any insurance
carrier absolving such carrier from further liability to Arch pursuant to
any Company Policy, only in respect of Litigated Arch Liabilities (as
defined below). Xxxx shall notify Arch of the terms and conditions of any
such release prior to its execution. Any release by Xxxx of coverage
obligations under any Company Policy in respect of Arch Liabilities other
than or in addition to those in respect of Litigated Arch Liabilities shall
require the written consent of Arch, which consent shall not be
unreasonably withheld.
(d) Arch shall at all times retain the Xxxx Policies, together
with the rights, benefits and privileges thereunder, including the right to
invade or exhaust any Xxxx Policy by submission of claims, settlement or
other wise; provided, that the retention of the Xxxx Policies by Arch is
not intended to limit, inhibit or preclude any right granted pursuant to
Section 6.02(b), and provided further that Section 6.02(b) is not intended
to limit, inhibit or preclude any rights, benefits or privileges that Arch
may have under the Xxxx Policies. Arch hereby agrees that Xxxx, in its sole
discretion, may at any time and without the consent of Arch grant a
release, given in good faith, to any
insurance carrier absolving such carrier from further liability to Arch
pursuant to any Xxxx Policy only in respect of Litigated Arch Liabilities.
Xxxx shall notify Arch of the terms and conditions of any such release
prior to its execution. Any release by Arch of coverage obliga tions under
any Xxxx Policy in respect of Xxxx Liabilities shall require the written
consent of Xxxx, which consent shall not be unreasonably withheld.
SECTION 6.03. Administration. Except as provided in the third
sentence of this Section 6.03, from and after the Distribution Date, Xxxx
shall be responsible for Claims Administration with respect to Xxxx
Liabilities and Arch or a Subsidiary of Arch, as appropriate, shall be
responsible for Claims Administration with respect to Arch Liabilities.
Except as provided in the third sentence of this Section 6.03, Xxxx hereby
appoints Arch as its agent and attorney in fact to perform Claims
Administration under Company Policies with respect to claims against Xxxx
which are or may give rise to Arch Liabilities, and Arch hereby appoints
Xxxx as its agent and attorney in fact to perform Claims Administration
under Xxxx Policies with respect to claims against Arch or Xxxx which are
or may give rise to Xxxx Liabilities. Notwithstanding the foregoing, Xxxx
shall be responsible for Claims Administration with respect to Arch
Liabilities with respect to which Xxxx is engaged in coverage litigation,
as of the Distribution Date, related to environmental remediation, and with
respect to Arch Liabilities related to environmental remediation which
become known after the Distribution Date, and which Xxxx shall add to said
coverage litigation, if then still pending ("Litigated Arch Liabilities").
SECTION 6.04. Insurance Proceeds. Proceeds received with respect
to claims made under Company Policies or Xxxx Policies shall be paid to
Xxxx with respect to Xxxx Liabilities and to Arch with respect to Arch
Liabilities; provided, that proceeds received with respect to Litigated
Arch Liabilities shall be allocated between Xxxx and Arch pro rata based on
the remediation related amounts actually expended by the parties in
connection therewith.
SECTION 6.05. Retrospectively Rated Policies. From and after the
Distribution Date, any additional premiums payable or rebates of premiums
previously paid in respect of any retrospectively rated Company Policy
shall be paid or collected by Xxxx. Xxxx shall be reimbursed by Arch, or
shall distribute to Arch, amounts equal to the portion of any such
additional premium or rebate, as applicable, which relates to the Arch
Business. From and after the Distribution Date, any additional premiums
payable
or rebates of premiums previously paid in respect of any retrospectively
rated Xxxx Policy shall be paid or collected by Arch. Arch shall be
reimbursed by Xxxx, or shall distri bute to Xxxx, amounts equal to the
portion of any such additional premium or rebate, as applicable, which do
not relate to the Arch Business.
SECTION 6.06. Agreement for Waiver of Conflict and Shared
Defense. In the event that Insured Claims of more than one of the parties
hereto exist relating to the same occurrence, the parties shall jointly
defend and waive any conflict of interest necessary to the conduct of the
joint defense. Nothing in this Section 6.06 shall be construed to limit or
otherwise alter in any way the obliga tions of the parties to this
Agreement, including those created by this Agreement, by operation of law
or otherwise.
SECTION 6.07. Cooperation. The parties hereto agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement. If the product aggregates
in the Company Policies or the Xxxx Policies become exhausted, the parties
agree to share the losses which otherwise would have been reimbursed by
such Policies, but for the exhaustion of such product aggregates, on terms
and in proportions that are equitable under the circumstances.
ARTICLE VII
Indemnification
SECTION 7.01. Indemnification. (a) Arch shall indemnify, defend
and hold harmless Xxxx, each Affiliate of Xxxx and each of their respective
directors, officers, employees and agents, and each of the heirs,
successors and assigns of any of the foregoing (the "Xxxx Indemnitees")
from and against all claims, damages, losses, liabilities, fines,
penalties, costs and expenses (including without limitation reasonable
attorneys' fees and disbursements) (collectively, "Indemnifiable Losses")
of the Xxxx Indemnitees arising out of, associated with, or resulting from
the Arch Liabilities (including without limitation the failure or alleged
failure by Arch to pay, perform or otherwise discharge such Arch
Liabilities in accordance with their terms), whether such Indemnifiable
Losses relate to or arise from events, occurrences, actions, omissions,
facts or circumstances occurring or existing, or whether such Indemnifiable
Losses are asserted, before, on or after the Distribution Date.
(b) Xxxx shall indemnify, defend and hold harmless Arch, each
Affiliate of Arch and each of their respective directors, officers,
employees and agents, and each of the heirs, successors and assigns of any
of the foregoing (the "Arch Indemnitees") from and against all
Indemnifiable Losses of the Arch Indemnitees arising out of, associated
with, or resulting from the Xxxx Liabilities (including without limitation
the failure or alleged failure by Xxxx to pay, perform or otherwise
discharge such Xxxx Liabilities in accordance with their terms), whether
such Indemnifiable Losses relate to or arise from events, occurrences,
actions, omissions, facts or circumstances occurring or existing, or
whether such Indemnifiable Losses are asserted, before, on or after the
Distribution Date.
SECTION 7.02. Insurance Matters. The amount which any
indemnifying party (an "Indemnifying Party") is or may be required to pay
to any indemnified party (an "Indemnified Party") under this Article VII
shall be reduced (including without limitation retroactively) by any
proceeds of insurance policies or other amounts actually recovered by or on
behalf of such Indemnified Party in reduction of the related Indemnifiable
Loss. If an Indemnified Party shall have received the payment (an
"Indemnity Payment") required by this Agreement from an Indemnifying Party
in respect of any Indemnifiable Loss and shall subsequently actually
receive proceeds of insurance policies or other amounts in respect of such
Indemnifiable Loss, then such Indemnified Party shall pay to such
Indemnifying Party a sum equal to the amount actually received (up to but
not in excess of the amount of any Indemnity Payment made hereunder). An
insurer who would otherwise be obligated to pay any claim shall not be
relieved of the responsibility with respect thereto, or, solely by virtue
of the indemnification provisions of this Article VII, or have any
subrogation rights with respect thereto, it being expressly understood and
agreed that no insurer or any other third party shall be entitled to a
benefit they would not otherwise be entitled to receive in the absence of
the indemnification provisions hereof by virtue of the indemnification
provisions hereof.
SECTION 7.03. Procedures for Indemnification. (a) Pending Claims.
(i) On the Distribution Date, Arch shall assume (or shall cause one of its
wholly owned Subsidiaries to assume) (A) the prosecution of all claims of
Arch and (B) the defense against all Pending Litigation Matters, in each
case, that are listed on Schedule 1.01(f).
(ii) Arch shall be responsible for attorneys' fees, disbursements
and other costs related to the claims set forth in Section 7.03(a)(i) only
as and to the extent
that such costs are accrued or incurred subsequent to the Distribution
Date, and shall not be responsible for any of such costs to the extent
accrued or incurred on or prior to the Distribution Date.
(b) Third Party Claims. (i) If a claim or demand is made against
an Indemnified Party by any person who is not a party to this Agreement (a
"Third Party Claim") as to which such Indemnified Party is entitled to
indemnification pursuant to this Agreement, such Indemnified Party shall
notify the Indemnifying Party in writing, and in reasonable detail, of the
Third Party Claim promptly (and in any event within 15 business days) after
receipt by such Indemnified Party of written notice of the Third Party
Claim; provided, however, that failure to give such notification shall not
affect the indemnification provided hereunder except to the extent the
Indemnifying Party shall have been actually prejudiced as a result of such
failure (except that the Indemnifying Party shall not be liable for any
expenses incurred during the period in which the Indemnified Party failed
to give such notice). Thereafter, the Indemnified Party shall deliver to
the Indemnifying Party, promptly (and in any event within 15 business days)
after the Indemnified Party's receipt thereof, copies of all notices and
documents (including court papers) received by the Indemnified Party
relating to the Third Party Claim.
(ii) If a Third Party Claim is made against an Indemnified Party,
the Indemnifying Party shall be entitled to participate in the defense
thereof and, if it so chooses and acknowledges in writing its obligation to
indemnify the Indemnified Party therefor, to assume the defense thereof
with counsel selected by the Indemnifying Party; provided, however, that
such counsel is not reasonably objected to by the Indemnified Party. Should
the Indemnifying Party so elect to assume the defense of a Third Party
Claim, the Indemnifying Party shall not be liable to the Indemnified Party
for legal or other expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof. If the Indemnifying Party assumes
such defense, the Indemnified Party shall have the right to participate in
the defense thereof and to employ counsel, at its own expense, separate
from the counsel employed by the Indem nifying Party, it being understood
that the Indemnifying Party shall control such defense. The Indemnifying
Party shall be liable for the fees and expenses of counsel employed by the
Indemnified Party for any period during which the Indemnifying Party has
failed to assume the defense thereof (other than during the period prior to
the time the Indemnified Party shall have given notice of the Third Party
Claim as provided above). If the Indemnifying
Party so elects to assume the defense of any Third Party Claim, the
Indemnified Party shall cooperate with the Indemnifying Party in the
defense or prosecution thereof.
(iii) If the Indemnifying Party acknowledges in writing its
obligation to indemnify the Indemnified Party for a Third Party Claim, then
in no event will the Indemnified Party admit any liability with respect
to, or settle, compromise or discharge, any Third Party Claim without the
Indemnifying Party's prior written consent; provided, however, that the
Indemnified Party shall have the right to settle, compromise or discharge
such Third Party Claim without the consent of the Indemnifying Party if the
Indemnified Party releases the Indemnifying Party from its indemnification
obligation hereunder with respect to such Third Party Claim and such
settlement, compromise or discharge would not otherwise adversely affect
the Indem nifying Party. If the Indemnifying Party acknowledges in writing
its obligation to indemnify the Indemnified Party for a Third Party Claim,
the Indemnified Party will agree to any settlement, compromise or discharge
of a Third Party Claim that the Indemnifying Party may recommend and that
by its terms obligates the Indemnifying Party to pay the full amount of the
liability in connection with such Third Party Claim and releases the
Indemnified Party completely in connection with such Third Party Claim and
that would not otherwise adversely affect the Indemnified Party; provided,
however, that the Indemnified Party may refuse to agree to any such
settlement, compromise or discharge if the Indemnified Party agrees that
the Indemnifying Party's indemnification obligation with respect to such
Third Party Claim shall not exceed the amount that would be required to be
paid by or on behalf of the Indemnifying Party in connection with such
settlement, compromise or discharge.
(iv) Notwithstanding the foregoing, the Indemnifying Party shall
not be entitled to assume the defense of any Third Party Claim (and shall
be liable for the fees and expenses of counsel incurred by the Indemnified
Party in defending such Third Party Claim) if the Third Party Claim seeks
an order, injunction or other equitable relief or relief for other than
money damages against the Indemnified Party which the Indemnified Party
reasonably determines, after conferring with its counsel, cannot be
separated from any related claim for money damages. If such equitable
relief or other relief portion of the Third Party Claim can be so separated
from that for money damages, the Indem nifying Party shall be entitled to
assume the defense of the portion relating to money damages.
SECTION 7.04 Indemnification Payments. Indemnification required
by this Agreement, shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or Indemnifiable Loss is incurred.
SECTION 7.05 Other Adjustments. (a) The amount of any
indemnification obligation with respect to any Third Party Claim
("Indemnity Obligation") shall be (x) increased to take into account any
net tax cost actually incurred by the Indemnified Party arising from any
payments received from the Indemnifying Party (grossed up for such
increase) and (y) reduced to take into account any net tax benefit actually
realized by the Indemnified Party arising from the incurrence or payment of
any such Indemnity Obligation. In computing the amount of such tax cost or
tax benefit, the Indemnified Party shall be deemed to recognize all other
items of income, gain, loss, deduction or credit before recognizing any
item arising from the receipt of any payment with respect to an Indemnity
Obligation or the incurrence or payment of any Indemnity Obligation.
(b) In addition to any adjustments required pursuant to Section
7.02 hereof or clause (a) of this Section 7.05, and subject to such clause
(a), if the amount of any Indemnity Obligation shall, at any time
subsequent to the payment required by this Agreement, be reduced by
recovery, settlement or otherwise, the amount of such reduction, less any
expenses incurred in connection therewith, shall promptly be repaid by the
Indemnified Party to the Indemnifying Party up to the aggregate amount of
any payments received from such Indemnifying Party pursuant to this
Agreement in respect of such Indemnity Obligation.
SECTION 7.06. Consolidation, Merger, Transfer, or Lease. Neither
Party shall consolidate with or merge into any other person, or convey,
transfer or lease its properties and assets substantially as an entirety
to any other person unless:
(a) The person formed by such consolidation or into which said
Party is merged or the person which acquires by conveyance or transfer, or
which leases the properties and assets of said Party substantially as an
entirely shall (i) be a corporation, (ii) be organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and (iii) expressly assume, by an instrument
satisfactory to the other Party, each and every obligation of said Party to
be performed or observed hereunder; and
(b) Said Party shall have delivered to the other Party a
Certificate executed by its Chief Executive Officer and Chief Financial
Officer stating that such consolidation, merger, conveyance, transfer or
lease complies with this Section 7.06 and that all conditions precedent
herein relating to such transaction have been complied with.
SECTION 7.07. Survival. All the indemnity obligations under this
Article VII shall survive indefinitely.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Conditions to Obligations. (a) The obligations of
Xxxx to consummate the Distribution are subject to the satisfaction (or
waiver by the Xxxx Board) of each of the following conditions:
(i) all material regulatory approvals necessary to consummate the
Distribution shall have been received and be in full force and effect;
(ii) the transactions contemplated by Article II shall have been
consummated in all material respects, to the extent required to be
consummated prior to the Distribution;
(iii) the Form 10 shall have become effective under the Exchange
Act, and no stop order or similar Commission proceeding shall be in
effect with respect to the Form 10, and no proceeding for that purpose
shall have been instituted by the Commission;
(iv) Arch's Board of Directors, as described in the Information
Statement, shall have been elected by Xxxx, as sole shareowner of
Arch, and each of the Articles, the By-laws and the Rights Plan shall
be in effect;
(v) the Arch Common Shares shall have been accepted for listing
on the NYSE, subject to official notice of issuance;
(vi) the Xxxx Board shall have received an opinion of counsel
satisfactory in form and substance to the Xxxx Board in its sole
discretion to the effect that the Distribution will not be taxable to
the holders of Xxxx Common Stock pursuant to Sections 355 and
368(a)(1)(D) of the Code;
(vii) no order, preliminary or permanent injunction or decree
issued by any court or agency of competent jurisdiction or other legal
restraint or prohibition preventing consummation of the Distribution
shall be in effect and no other event shall have occurred or failed to
occur that prevents consummation of the Distribu tion;
(viii) the Xxxx Board shall have formally approved the
Distribution; and
(ix) each of the Ancillary Agreements shall have been executed
and delivered by the applicable parties.
(b) The foregoing conditions are for the sole benefit of Xxxx and
shall not give rise to any duty on the part of Xxxx or the Xxxx Board to
waive or not waive such conditions or in any way limit Olin's right to
terminate this Agreement as set forth in Section 8.13 or alter the
consequences of any such termination from those specified in such Section.
Any determination made by the Xxxx Board prior to the Distribution Date
concerning the satisfaction or waiver of any or all of the conditions set
forth in this Section 8.01 shall be conclusive.
SECTION 8.02. Exhibits and Schedules; Interpreta tion. The
headings contained in this Agreement or in any Exhibit or Schedule hereto
and in the table of contents to this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. All Exhibits and Schedules annexed hereto or referred to herein
are hereby incorporated in and made a part of this Agreement as is set
forth in full herein. Any capitalized terms used in any Exhibit or Schedule
but not otherwise defined therein, shall have the meanings as defined in
this Agreement. References to an "Exhibit" or to a "Schedule" are, unless
otherwise specified, to one of the Exhibits or Schedules attached to this
Agreement, and references to a "Section" or an "Article" are, unless other
wise specified, to one of the Sections or Articles of this Agreement. For
all purposes hereof, the terms "including", "includes" or "include" shall
be deemed followed by the words "without limitation". In the event of any
inconsis tency between this Agreement and any Schedule hereto, the Schedule
shall prevail. Notwithstanding any other provisions in this Agreement to
the contrary, in the event and to the extent that there shall be a conflict
between the provisions of this Agreement and the provisions of any
Ancillary Agreement, such Ancillary Agreement shall control.
SECTION 8.03. Entire Agreement. This Agreement, including the
Exhibits and Schedules, and the Ancillary Agreements shall constitute the
entire agreement between the parties with respect to the subject matter
hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter.
SECTION 8.04. Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address, the matters
specifically and expressly covered by the Ancillary Agreements.
SECTION 8.05. Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts
have been signed by each of the parties and delivered to the other parties.
SECTION 8.06. Survival of Agreements. Except as otherwise
expressly provided in this Agreement, all cove nants and agreements of the
parties contained in this Agreement shall survive the Distribution Date.
SECTION 8.07. Expenses. Except as otherwise set forth in this
Agreement or any Ancillary Agreement, all costs and expenses incurred on or
prior to the Distribution Date (whether or not paid on or prior to the
Distribution Date) in connection with the preparation, execution, delivery
and implementation of this Agreement and any Ancillary Agreement, the
Information Statement and the Distribution and the consummation of the
transactions contemplated thereby shall be charged to and paid by Xxxx.
Except as otherwise set forth in this Agreement or any Ancillary Agreement,
each party shall bear its own costs and expenses incurred after the
Distribution Date.
SECTION 8.08. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of
electronic message transmission with delivery confirmed (by voice or
otherwise) to the parties at the following addresses (or at such other
addresses for a party as shall be specified by
like notice) and will be deemed given on the date on which such notice is
received:
To Xxxx Corporation:
000 Xxxxxxx 0
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Corporate Secretary
To Arch Chemicals, Inc.:
000 Xxxxxxx 0
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Corporate Secretary
SECTION 8.09. Waivers. The failure of either party to require
strict performance by the other party of any provision in this Agreement
will not waive or diminish that party's right to demand strict performance
thereafter of that or any other provision hereof.
SECTION 8.10. Amendments. Subject to the terms of Section 8.13
hereof, this Agreement may not be modified or amended except by an
agreement in writing signed by the parties.
SECTION 8.11. Assignment. Other than in connec tion with a
transaction contemplated by Section 7.06, this Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party
hereto without the prior written consent of the other, and any attempt to
assign any rights or obligations arising under this Agreement without such
consent shall be void.
SECTION 8.12. Successors and Assigns. The provi sions of this
Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and permitted assigns.
SECTION 8.13. Termination. This Agreement may be terminated and
the Distribution may be amended, modified or abandoned at any time prior to
the Distribution Date by and in the sole discretion of Xxxx without the
approval of Arch or the shareholders of Xxxx. In the event of such termina
tion, no party shall have any liability of any kind to any other party or
any other person. After the Distribution
Date, this Agreement may not be terminated except by an agreement in
writing signed by the parties.
SECTION 8.14. Subsidiaries. Each of the parties hereto shall
cause to be performed, and hereby guarantees the performance of, all
actions, agreements and obligations set forth herein to be performed by any
Subsidiary of such party or by any entity that is contemplated to be a
Subsi diary of such party after the Distribution.
SECTION 8.15. Third Party Beneficiaries. This Agreement is solely
for the benefit of the parties hereto and should not be deemed to confer
upon third parties any remedy, claim, liability, reimbursement, claim of
action or other right in excess of those existing without reference to this
Agreement.
SECTION 8.16. Attorney Fees. Except as contem plated by the third
to the last sentence of Article V hereof, a party in breach of this
Agreement shall, on demand, indemnify and hold harmless the other parties
hereto for and against all out-of-pocket expenses, including legal fees,
incurred by such other party by reason of the enforce ment and protection
of its rights under this Agreement. The payment of such expenses is in
addition to any other relief to which such other party may be entitled
hereunder or otherwise.
SECTION 8.17. Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 8.18. Exhibits and Schedules. The Exhibits and Schedules
shall be construed with and as an integral part of this Agreement to the
same extent as if the same had been set forth verbatim herein.
SECTION 8.19. Specific Performance. Each of the parties hereto
acknowledges that there is no adequate remedy at law for failure by such
parties to comply with the provi sions of this Agreement and that such
failure would cause immediate harm that would not be adequately compensable
in damages, and therefore agree that their agreements contained herein may
be specifically enforced without the requirement of posting a bond or other
security, in addition to all other remedies available to the parties hereto
under this Agreement.
SECTION 8.20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA
APPLICABLE TO CONTRACTS EXECUTED THEREIN AND TO BE PERFORMED THEREIN.
SECTION 8.21. Consent to Jurisdiction. Without limiting the
provisions of Article V hereof, each of the parties irrevocably submits to
the exclusive personal jurisdiction and venue of (a) the Circuit Court of
Henrico County, Commonwealth of Virginia, and (b) the United States
District Court for the Eastern District of Virginia (Richmond Division),
for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby. Each of the parties
agrees to commence any action, suit or proceeding relating hereto either in
the United States District Court for the Eastern District of Virginia
(Richmond Division) or if such suit, action or other proceeding may not be
brought in such court for jurisdictional reasons, in the Circuit Court of
the Henrico County, Commonwealth of Virginia. Each of the parties further
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above shall be
effective service of process for any action, suit or proceeding in Virginia
with respect to any matters to which it has submitted to jurisdiction in
this Section 8.21. Each of the parties irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement or the transactions contem plated
hereby in (i) the Circuit Court of Henrico County, Commonwealth of
Virginia, or (ii) the United States District Court for the Eastern District
of Virginia (Richmond Division), and hereby further irrevocably and uncondi
tionally waives and agrees not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum, and the right to object, with respect to such
action, suit or proceeding, that such court does not have jurisdiction over
such Party.
SECTION 8.22. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way
be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions, the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
XXXX CORPORATION,
by /s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President,
General Counsel and
Secretary
ARCH CHEMICALS, INC.,
by /s/ Xxxxx X. X'Xxxxxx
-----------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Vice President
The following is an identification of the contents of all omitted
schedules and exhibits to the Distribution Agreement. Arch Chemicals, Inc.
will furnish supplementally a copy of any omitted schedule or exhibit to
the Securities and Exchange Commission upon request.
SCHEDULES
Schedule 1.01(a) - Real Estate
Schedule 1.01(b) - Subsidiaries
Schedule 1.01(c) - Employee Matters
Schedule 1.01(d) - Retained Assets
Schedule 1.01(e) - Retained Businesses
Schedule 1.01(f) - Litigation
Schedule 1.01(g) - Certain Contractual Liabilities
Schedule 1.01(h) - Environmental
Schedule 1.01(i) - Certain Excluded Liabilities
Schedule 1.01(j) - Arch Product Lines
Schedule 2.08 - Guarantees
Schedule 30.4 - Contract Provisions
