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Exhibit 2.1(a)
DISTRIBUTION AGREEMENT
DATED AS OF JUNE 16, 1998
BY AND BETWEEN
ALLEGHANY CORPORATION
AND
CHICAGO TITLE CORPORATION
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS .........................................................2
Section 1.1. Definitions...............................................2
ARTICLE II THE DISTRIBUTION....................................................5
Section 2.1. Conditions Precedent to the Distribution..................5
Section 2.2. The Distribution..........................................7
ARTICLE III AGREEMENT AS TO LIABILITIES; INSURANCE.............................7
Section 3.1. Discharge of Liabilities..................................7
Section 3.2. Insurance.................................................8
ARTICLE IV INDEMNIFICATION.....................................................8
Section 4.1. Chicago Title Indemnification of the Alleghany Group......8
Section 4.2. Alleghany Indemnification of Chicago Title Group..........8
Section 4.3. Procedures Regarding Indemnification......................8
ARTICLE V TAX MATTERS ........................................................10
Section 5.1. Tax Agreement............................................10
ARTICLE VI ACCOUNTING MATTERS.................................................10
Section 6.1. Allocation of Prepaid Items and Reserves.................10
Section 6.2. Accounting Treatment of Assets Transferred and
Liabilities Assumed....................................10
ARTICLE VII INFORMATION.......................................................10
Section 7.1. Access to Information....................................10
Section 7.2. Litigation Cooperation...................................10
ARTICLE VIII INTEREST ON PAYMENTS.............................................11
Section 8.1. Interest on Payments.....................................11
ARTICLE IX MISCELLANEOUS......................................................11
Section 9.1. Allocation of Costs and Expenses.........................11
Section 9.2. Disputes.................................................11
Section 9.3. Notices .................................................13
Section 9.4. Limitation...............................................13
Section 9.5. Entire Agreement; Amendment..............................13
Section 9.6. Assignment...............................................14
Section 9.7. Survival of Agreements and Covenants.....................14
Section 9.8. Parties in Interest......................................14
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Section 9.09. Further Assurances and Consents..........................14
Section 9.10. Certain Plan Liabilities.................................14
Section 9.11. Severability.............................................15
Section 9.12. Governing Law............................................15
Section 9.13. Counterparts.............................................15
Section 9.14. Headings.................................................15
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DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement") dated as of June 16, 1998
by and between Alleghany Corporation, a Delaware corporation (together with its
successors and permitted assigns, "Alleghany"), and Chicago Title Corporation, a
Delaware corporation (together with its successors and permitted assigns,
"Chicago Title").
W I T N E S S E T H:
WHEREAS, Chicago Title and Trust Company, an Illinois corporation
("CT&T"), is a wholly owned subsidiary of Alleghany; and
WHEREAS, the Board of Directors of Alleghany has determined that it
is in the best interests of Alleghany and the stockholders of Alleghany (i) to
contribute all of the outstanding shares of CT&T Common Stock (as defined
herein) to Chicago Title, (ii) to effect the other transactions referred to in
this Agreement, and (iii) to distribute to the holders of Alleghany Common Stock
(as defined herein) all of the outstanding shares of Chicago Title Common Stock
(as defined herein) owned by Alleghany (which, as of the Distribution Date (as
defined herein) will constitute approximately 98% of the shares of Chicago Title
Common Stock, with the remaining shares of Chicago Title Common Stock to be
awarded, on or about the Distribution Date, as shares of restricted stock to
members of senior management of the Chicago Title Group (as defined herein) and
to non-employee directors of Chicago Title) at the rate of three shares of
Chicago Title Common Stock for each share of Alleghany Common Stock outstanding
as of the Record Date (as defined herein); and
WHEREAS, prior to the date hereof, (i) The Chicago Trust Company, an
Illinois trust company ("TCTC"), has transferred its land trust and release
business to Chicago Title Land Trust Company, an Illinois trust company
("CTLTC") which was formed as a wholly-owned subsidiary of TCTC (the "Land Trust
Business Transfer"), and (ii) subsequent thereto, TCTC has distributed all of
the outstanding CTLTC Common Stock (as defined herein) to Alleghany Asset
Management, Inc., a Delaware corporation ("AAM"), and (iii) subsequent thereto,
AAM has distributed all of the outstanding CTLTC Common Stock to CT&T, and (iv)
subsequent thereto, CT&T has distributed (the "AAM Distribution") all of the
outstanding common stock, par value $1.00 per share, of AAM to Alleghany, and
(v) subsequent thereto, CT&T has distributed all of the outstanding Non-Voting
Preferred Stock, par value $12.50 per share, of TCTC to Alleghany, so that as of
the date hereof CTLTC is a member of the Chicago Title Group (as defined herein)
and AAM and its direct and indirect subsidiaries TCTC, Chicago Deferred Exchange
Corporation, Montag & Xxxxxxxx, Inc. and Security Trust Company are members of
the Alleghany Group (as defined herein); and
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WHEREAS, the parties have determined that it is necessary and
desirable to set forth in this Agreement the principal corporate transactions
required to effect the Distribution and to set forth other agreements that will
govern certain other matters following such Distribution; and
WHEREAS, in connection with the Distribution, Alleghany and Chicago
Title intend to enter into the Tax Agreement (as such term is defined herein).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used herein, the following terms have
the following meaning:
"AAM Agreements" means the agreements entered into between AAM
and/or subsidiaries of AAM, on the one hand, and Chicago Title and/or
subsidiaries of Chicago Title, on the other hand, in connection with the AAM
Distribution and related transactions including, without limitation, the
Investment Management Agreements, the Investment Management and Custody
Agreements, the Transitional Services Agreement, the Employee Benefits
Transition Agreement and the Sublease.
"Affiliate" has the meaning set forth in Rule 12b-2 promulgated
under the Exchange Act.
"Alleghany Business" means the business now or formerly conducted by
Alleghany and its present and former subsidiaries, but excluding (i) the Chicago
Title Business and (ii) the land trust and release business conducted by TCTC
prior to the date of the Land Trust Business Transfer and currently conducted by
CTLTC.
"Alleghany Common Stock" means the outstanding shares of common
stock, par value $1.00 per share, of Alleghany.
"Alleghany Group" means (i) Alleghany and its subsidiaries,
excluding any member of the Chicago Title Group, and (ii) AAM and its
subsidiaries.
"Alleghany Indemnitees" is defined in Section 4.1.
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"Alleghany Liabilities" means (i) Liabilities of Alleghany under
this Agreement and (ii) Liabilities, other than Chicago Title Liabilities,
incurred in connection with the operation of the Alleghany Business, whether
arising before, on or after the Distribution Date, including all Liabilities
under any employee benefit plan (as defined in Section 3(3) of ERISA)
established or maintained, or to which contributions were made by, any Alleghany
Business.
"Assets" means all properties, rights, contracts, leases and claims,
of every kind and description, wherever located, whether tangible or intangible,
and whether real, personal or mixed.
"Chicago Title Business" means the business now or formerly
conducted by Chicago Title and its present or former subsidiaries or any other
member of the Chicago Title Group, but excluding the business now or formerly
conducted by AAM and its present and former subsidiaries, except that the
Chicago Title Business shall include the land trust and release business
conducted by TCTC prior to the date of the Land Trust Business Transfer and
presently conducted by CTLTC.
"Chicago Title By-laws" means the By-laws of Chicago Title in the
form attached as Exhibit A hereto.
"Chicago Title Certificate" means the certificate of incorporation
of Chicago Title in the form attached as Exhibit B hereto.
"Chicago Title Common Stock" means the outstanding shares of common
stock, par value $1.00 per share, of Chicago Title.
"Chicago Title Group" means Chicago Title, CT&T, and the
subsidiaries of CT&T, but excluding AAM and its subsidiaries.
"Chicago Title Indemnitees" is defined in Section 4.2.
"Chicago Title Liabilities" means (i) Liabilities of Chicago Title
under this Agreement or any of the AAM Agreements, (ii) Liabilities of any
member of the Chicago Title Group, including all Liabilities incurred in
connection with the conduct or operation of any Chicago Title Business, the
ownership or use of any of the Assets related to any Chicago Title Business,
whether arising before, on or after the Distribution Date, or the establishment
of maintenance of, or contributions to, any employee benefit plan (as defined in
Section 3(3) of ERISA) for the benefit of persons employed by any Chicago Title
Business, (iii) Liabilities arising under or in connection with the Form 10, and
(iv) Liabilities relating to a Sold Business or arising out of the sale thereof.
"Claim" is defined in Section 4.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
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"CT&T Common Stock" means the outstanding shares of common stock,
par value $6-2/3 per share, of CT&T.
"CTLTC Common Stock" means the outstanding shares of common stock,
par value $1.00 per share, of CTLTC.
"Dispute" is defined in Section 9.2.
"Distribution" means the distribution on the Distribution Date of
all outstanding shares of Chicago Title Common Stock owned by Alleghany to the
holders of Alleghany Common Stock on the Record Date.
"Distribution Agent" means Xxxxxx Trust and Savings Bank in its
capacity as distribution agent.
"Distribution Date" means the date on which the Distribution shall
be effective, as determined by the Board of Directors of Alleghany.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Form 10" means the registration statement on Form 10 filed by
Chicago Title with the Commission to effect the registration of the Chicago
Title Common Stock pursuant to the Exchange Act, as such registration statement
may be amended from time to time.
"Governmental Authority" means any government or agency, bureau,
board, commission, court, department, official, or other instrumentality of the
United States or any state or political subdivision of the United States.
"Group" means either the Alleghany Group or the Chicago Title Group,
as the context requires.
"Indemnitor" is defined in Section 4.3.
"Information Statement" means the information statement dated May
28, 1998 and sent to each holder of Alleghany Common Stock in connection with
the Distribution.
"Law" means all laws, statutes and ordinances and all regulations,
rules and other pronouncements of Governmental Authorities having the effect of
law of the United States or any state or political subdivision of the United
States.
"Liabilities" means any and all claims, debts, liabilities and
obligations, absolute or contingent, matured or not matured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising,
including all costs and expenses
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relating thereto, and including, without limitation, those debts, liabilities
and obligations arising under this Agreement, under any law, rule, regulation,
action, order or consent decree of any governmental entity or under any award of
any arbitrator of any kind, and those arising under any contract, commitment or
undertaking.
"Lincoln National Indemnity" means all rights of Alleghany and CT&T
and Chicago Title Insurance Company, and all of the corporations, associations
or other business organizations which either of them controls, by ownership, a
management contract or otherwise, to be indemnified by Lincoln National
Corporation, pursuant to the Stock Purchase Agreement by and among Alleghany,
Alleghany Financial Corporation, Alleghany Capital Corporation and Lincoln
National Corporation, dated as of June 18, 1985.
"Record Date" means such date as is designated by Alleghany's Board
of Directors as the record date for determining the stockholders of Alleghany
entitled to receive the Distribution.
"Securities Act" means the Securities Act of 1933, as amended.
"Sold Business" means any Chicago Title Business which has been
sold, terminated or disposed of, whether or not for consideration, on or prior
to the date hereof.
"Tax" has the meaning set forth in the Tax Agreement.
"Tax Agreement" means the Tax Sharing Agreement entered into on or
before the Distribution Date by and among Alleghany and Chicago Title, as
amended from time to time.
ARTICLE II
THE DISTRIBUTION
Section 2.1. Conditions Precedent to the Distribution. The
Distribution shall be subject to, in the sole discretion of Alleghany, the
fulfillment or waiver of each of the following conditions:
(a) Alleghany's Board of Directors, in its discretion, shall have
declared the Distribution, established the Record Date and the
Distribution Date and any appropriate procedures in connection with the
Distribution to the extent not provided for herein;
(b) any necessary regulatory approvals shall have been received;
(c) the Form 10 shall have become effective under the Exchange Act
and no stop order shall have been entered, and no proceeding for that
purpose shall have been initiated or threatened by the Commission with
respect thereto;
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(d) all necessary permits, registrations and consents required under
the insurance, securities or blue sky laws of states or other political
subdivisions of the United States in connection with the transactions
contemplated by this Agreement shall have been received or become
effective;
(e) Chicago Title's Board of Directors, as named in the Form 10,
shall have been elected by Alleghany, as sole stockholder of Chicago
Title, and the Chicago Title Certificate and Chicago Title By-laws shall
be in effect;
(f) the Chicago Title Common Stock shall have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance;
(g) the Tax Agreement shall have been executed and delivered by the
parties thereto and shall be in full force and effect;
(h) Alleghany shall have received a ruling from the Internal Revenue
Service (in form and substance satisfactory to Alleghany) to the effect
that, by reason of the applicability of Section 355 of the Code, the AAM
Distribution will not be taxable to Alleghany and the Distribution will
not be taxable to the stockholders of Alleghany;
(i) the distribution of all of the CTLTC Common Stock by TCTC to AAM
shall have been effected and, subsequent thereto, the distribution of all
of the CTLTC Common Stock by AAM to CT&T shall have been effected and,
subsequent thereto, the AAM Distribution shall have been effected and,
subsequent thereto, the distribution by CT&T of all of the Non-Voting
Preferred Stock, par value $12.50 per share, of TCTC to Alleghany shall
have been effected;
(j) consummation of the Distribution and the other transactions
contemplated hereby shall not be prohibited by Law and no Governmental
Authority of competent jurisdiction shall have enacted, issued,
promulgated or entered, or shall have threatened to enact, issue,
promulgate or enter, any statute, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary or
permanent) which materially restricts, prevents or prohibits consummation
of the Distribution or any transaction contemplated by this Agreement, it
being understood and agreed that the parties hereto shall use all
reasonable efforts to cause any such decree, judgment, injunction or other
order to be vacated or lifted as promptly as possible; and
(k) Alleghany and Chicago Title and the members of their respective
Groups shall have obtained all third-party consents and approvals, the
failure of which to obtain would, in the sole determination of Alleghany's
Board of Directors, have a material adverse effect on the Alleghany Group
or the Chicago Title Group, each taken as a whole, and such consents and
approvals shall be in full force and effect.
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Section 2.2. The Distribution. On or before the Distribution Date,
subject to satisfaction or waiver of the conditions set forth in this Agreement,
Alleghany shall deliver to the Distribution Agent a certificate or certificates
representing all of the then outstanding shares of Chicago Title Common Stock
owned by Alleghany (which, as of the Distribution Date, will constitute
approximately 98% of the shares of Chicago Title Common Stock, with the
remaining shares of Chicago Title Common Stock to be awarded, on or about the
Distribution Date, to members of senior management of the Chicago Title Group
and to non-employee directors of Chicago Title), endorsed in blank, and shall
instruct the Distribution Agent to distribute to each holder of record of
Alleghany Common Stock on the Record Date a certificate or certificates
representing three shares of Chicago Title Common Stock for each share of
Alleghany Common Stock so held. Chicago Title agrees to provide all certificates
for shares of Chicago Title Common Stock that the Distribution Agent shall
require in order to effect the Distribution.
ARTICLE III
AGREEMENT AS TO LIABILITIES; INSURANCE
Section 3.1. Discharge of Liabilities.
(a) Alleghany and Chicago Title agree that on and after the
Distribution Date each will, and will cause each member of its respective
Group to, use its best efforts to cause any such member who, if the
Distribution had not occurred, would have been entitled to payment
pursuant to the Lincoln National Indemnity in respect of any Liabilities,
whether arising before, on or after the Distribution Date, to receive
payment in respect of any such Liabilities pursuant to the Lincoln
National Indemnity directly from Lincoln National Corporation (or, if
necessary, indirectly from any member of either Group which is directly
entitled to the benefit of the Lincoln National Indemnity). Alleghany and
Chicago Title each further agree that after the Distribution Date, in the
event any payment pursuant to the Lincoln National Indemnity is received
by any member of its respective Group in respect of a Liability of the
other Group, it will, and will cause any involved member of its respective
Group to, pay such amount promptly to such member of the other Group as
may be designated by Alleghany or Chicago Title, as the case may be. It is
the intention of the parties that payments pursuant to the Lincoln
National Indemnity in respect of matters for which reimbursement was
sought prior to the Distribution Date shall be for the benefit of
Alleghany, and that payments pursuant to the Lincoln National Indemnity in
respect of matters for which reimbursement is sought from and after the
Distribution Date shall be for the benefit of Chicago Title.
(b) From and after the Distribution Date, each party shall promptly
transfer or cause the members of its Group promptly to transfer to the
other party or the appropriate member of the other party's Group, from
time to time, any property received that is an Asset of the other party or
a member of its Group.
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Section 3.2. Insurance. Prior to the Distribution Date, Alleghany
and Chicago Title will cooperate in obtaining insurance (or binders therefor)
providing coverage to the Chicago Title Group similar to the insurance coverage
in place prior to the Distribution Date; provided, however that all expense
involved in procuring such insurance coverage shall constitute Chicago Title
Liabilities.
ARTICLE IV
INDEMNIFICATION
Section 4.1. Chicago Title Indemnification of the Alleghany Group.
On and after the Distribution Date, Chicago Title shall indemnify Alleghany and
its Affiliates (collectively, the "Alleghany Indemnitees") from and against any
and all demands, claims, actions, assessments, losses, damages, liabilities,
reasonable costs and expenses, including, without limitation, interest,
penalties and attorneys' fees and expenses, judgments and, subject to Section
4.3, amounts paid in settlement of or in connection with any threatened, pending
or contemplated claim, action, suit or proceeding, whether criminal, civil,
administrative or investigative, or investigation (the "Claims"), asserted
against, resulting to, imposed upon or incurred by Alleghany Indemnitees,
directly or indirectly, arising out of or due to the failure of Chicago Title,
or any member of the Chicago Title Group, to pay, perform or otherwise discharge
any of the Chicago Title Liabilities.
Section 4.2. Alleghany Indemnification of Chicago Title Group. On
and after the Distribution Date, Alleghany shall indemnify Chicago Title and its
Affiliates (collectively, the "Chicago Title Indemnitees") from and against any
and all Claims asserted against, resulting to, imposed upon or incurred by
Chicago Title Indemnitees, directly or indirectly, arising out of or due to the
failure of Alleghany, or any member of the Alleghany Group, to pay, perform or
otherwise discharge any of the Alleghany Liabilities.
Section 4.3. Procedures Regarding Indemnification.
(a) If Alleghany or Chicago Title has actual knowledge that any
Indemnitee has suffered or incurred any Claim, Alleghany or Chicago Title
shall so notify the other promptly in writing describing such Claim, the
basis for its belief that it is entitled to indemnification and the amount
for which the Indemnitee reasonably believes it is entitled to be
indemnified. If any action at law or suit in equity is instituted by or
against a third party with respect to which any Indemnitee intends to
claim any liability or expense as a Claim hereunder, any such Indemnitee
shall promptly notify the indemnifying party of such action or suit. An
Indemnitee providing such notice of the commencement of any action or
proceeding will permit the party responsible for indemnification thereof
(the "Indemnitor") to assume the defense of such action. Failure by
Indemnitor to notify Indemnitee of its election to defend any such action
within a reasonable time, but in no event more than 30 days after written
notice thereof shall have
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been given to Indemnitor, shall be deemed a waiver by Indemnitor of its
right to defend such action.
(b) If Indemnitor assumes the defense of any such Claim or
litigation resulting therefrom, the obligations of Indemnitor as to such
Claim shall be limited to taking all steps necessary in the defense or
settlement of such Claim or litigation resulting therefrom and to holding
Indemnitee harmless from and against any and all losses, damages and
liabilities caused by or arising out of any settlement approved by
Indemnitor or any judgment in connection with such Claim or litigation
resulting therefrom. Indemnitee may participate, at its expense, in the
defense of such Claim or litigation provided that Indemnitor shall direct
and control the defense of such Claim or litigation. Indemnitor shall not,
in the defense of such Claim or any litigation resulting therefrom,
consent to entry of any judgment or enter into any settlement other than a
judgment or settlement involving only the payment of money, except with
the written consent of Indemnitee, which consent shall not be unreasonably
withheld.
(c) If Indemnitor shall not assume the defense of any such Claim or
litigation resulting therefrom, Indemnitee may defend against such Claim
or litigation in such manner as it may deem appropriate, provided that
Indemnitee shall not settle such Claim or litigation without providing
notice and a description of the proposed settlement to Indemnitor. If
Indemnitee shall not receive from Indemnitor within ten days of the date
of notice of such proposed settlement a notice that Indemnitor reasonably
objects to such proposed settlement accompanied by an acknowledgment by
Indemnitor that the Claim or litigation which is subject of the proposed
settlement is subject to Indemnification pursuant to the provisions of
this Article IV, Indemnitee shall be free to settle such Claim or
litigation. In the case of any such settlement, Indemnitor shall promptly
reimburse Indemnitee for the amount of all reasonable expenses, legal or
otherwise, incurred by Indemnitee in connection with the defense against
or settlement of such Claim or litigation. If no settlement of such Claim
or litigation is made, Indemnitor shall promptly reimburse Indemnitee for
the amount of any final judgment rendered with respect to such Claim or in
such litigation and for the amount of all expenses, legal or otherwise,
incurred by Indemnitee in the defense against such Claim or litigation,
provided that Indemnitee has contested any such Claim or litigation in
good faith.
(d) For purposes hereof, a judgment or decree of a court shall be
deemed final when such judgment or decree may be enforced against the
party bound thereby.
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ARTICLE V
TAX MATTERS
Section 5.1. Tax Agreement. All matters relating to any Tax shall be
governed exclusively by the Tax Agreement. In the event of any inconsistency
between the Tax Agreement and this Agreement, the Tax Agreement shall govern.
ARTICLE VI
ACCOUNTING MATTERS
Section 6.1. Allocation of Prepaid Items and Reserves. All prepaid
items and reserves that have been maintained by Alleghany on a consolidated
basis but that relate in part to Assets or Liabilities of the Chicago Title
Group shall be allocated between Alleghany and Chicago Title in such reasonable
manner as they shall mutually agree.
Section 6.2. Accounting Treatment of Assets Transferred and
Liabilities Assumed. Any transfers of Assets of the Alleghany Group to the
Chicago Title Group pursuant to this Agreement shall constitute contributions by
Alleghany to the capital of Chicago Title. Any transfers of Assets of the
Chicago Title Group to the Alleghany Group, and any assumption by the Chicago
Title Group of Liabilities of the Alleghany Group pursuant to this Agreement,
net of Assets received, shall be treated as a distribution by Chicago Title to
Alleghany.
ARTICLE VII
INFORMATION
Section 7.1. Access to Information. From and after the Distribution
Date, Alleghany and Chicago Title each shall afford the other (including each
party's accountants, counsel and other designated representatives) reasonable
access (including using reasonable efforts to give access to persons or firms
possessing information) and duplicating rights during normal business hours to
all records, books, contracts, instruments, computer data and other data and
information in its possession relating to its business and affairs, insofar as
such access is reasonably required including, without limitation, for audit,
accounting and litigation purposes.
Section 7.2. Litigation Cooperation. Alleghany and Chicago Title
shall each use reasonable efforts to make available to the other, upon written
request, its officers, directors, employees and agents as witnesses to the
extent that such persons may reasonably be required in connection with any
legal, administrative or other proceedings arising out of the business of the
other prior to the Distribution Date in which the requesting party may from time
to time be involved. In the event that either Alleghany or Chicago Title
provides witnesses to the other under this Article VII, the party providing
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such witnesses shall be entitled to reimbursement from the recipient for all
reasonably incurred out-of-pocket costs and expenses, but not including internal
time charges.
ARTICLE VIII
INTEREST ON PAYMENTS
Section 8.1. Interest on Payments. Except as otherwise expressly
provided in this Agreement, all payments by one party to the other under this
Agreement shall be paid, by wire transfer of immediately available funds to an
account in the United States designated by the recipient, within 30 days after
receipt of an invoice or other written request for payment setting forth the
specific amount due and a description of the basis therefor in reasonable
detail. Any amount remaining unpaid beyond its due date, including disputed
amounts that are ultimately determined to be payable, shall bear interest at a
floating rate of interest equal to the prime commercial lending rate publicly
announced by The Chase Manhattan Bank or any successor thereto at its principal
office (or any alternative rate substituted therefor by such Bank).
ARTICLE IX
MISCELLANEOUS
Section 9.1. Allocation of Costs and Expenses. Except as otherwise
set forth in this Agreement or the Tax Agreement, Chicago Title shall pay for
all fees, costs and expenses incurred in connection with the Distribution and
the consummation of the transactions contemplated by this Agreement, including,
but not limited to, any and all fees, costs and expenses related to (i) the
preparation, printing and filing of the Form 10, including all fees and expenses
of complying with applicable federal and state securities laws and insurance
laws, (ii) the listing of the Chicago Title Common Stock on the New York Stock
Exchange, (iii) the preparation and negotiation of all of the documentation
related to all of the transactions contemplated by this Agreement, (iv) the
preparation, printing and mailing of the Information Statement, and (v) the
fees, costs and expenses of counsel associated with the foregoing; provided,
however, that Alleghany shall pay for (i) all of the fees, costs and expenses
incurred in connection with the preparation and filing of the Ruling Request (as
defined in the Tax Agreement), including all fees, costs and expenses of counsel
associated with the Ruling Request, (ii) the fees, costs and expenses of counsel
for matters related to the Distribution which were invoiced to Alleghany on or
prior to January 31, 1998 for time charges incurred prior to January 1, 1998,
and (iii) the fees, costs and expenses payable to Xxxxxxx Xxxxx & Co. pursuant
to its engagement as financial advisor to Alleghany in connection with the
Distribution.
Section 9.2. Disputes.
(a) Resolution of any and all disputes arising from or in connection
with this Agreement, whether based on contract, tort, statute or
otherwise, including, but not limited to, disputes in connection with
claims by third parties
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(collectively, "Disputes"), shall be subject to the provisions of this
Section 9.2; provided, however, that a party may, without prejudice to the
provisions of this Section 9.2, file a complaint for statute of
limitations reasons, or to seek a preliminary injunction or other
provisional relief, if in its sole judgment such action is necessary to
avoid irreparable damage or to preserve the status quo. Despite such
action the parties shall continue to participate in good faith in the
procedures specified in this Section 9.2. All applicable statutes of
limitation and defenses based upon the passage of time shall be tolled
while the procedures set forth in this Section 9.2 are pending. The
parties will take such action, if any, as is required to effectuate such
tolling.
(b) Any party may give another party written notice of any Dispute
not resolved in the normal course of business. Such notice shall include a
statement of the position of the party giving such notice and a summary of
arguments supporting that position. The parties shall thereupon attempt in
good faith to resolve any Dispute promptly by negotiation between the
Chief Executive Officers of Alleghany and Chicago Title, who shall meet at
a mutually acceptable time and place, within 60 days after the date of
delivery of the written notice, and thereafter as often as they reasonably
deem necessary, to attempt to resolve the Dispute. All reasonable requests
for information made by one party to the other will be honored.
(c) If the Dispute has not been resolved by negotiation within 90
days of delivery of the first notice, or if the Chief Executive Officers
of Alleghany and Chicago Title have failed to meet within 60 days after
the date of delivery of the written notice, the dispute shall be settled
by arbitration in accordance with the then current Center for Public
Resources/Legal Project Non-Administered Arbitration Rules by a sole
arbitrator located in New York, New York. The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. ss. 1-16, and any
party seeking an order confirming the award rendered by the arbitrator
shall apply for such order to the United States District Court for the
Southern District of New York or to any other court having jurisdiction
thereof. The arbitrator is not empowered to award damages in excess of
compensatory damages and each party hereby irrevocably waives any right to
recover such damages with respect to any Dispute resolved by arbitration.
(d) Alleghany and Chicago Title each hereby expressly submits and
consents in advance to the jurisdiction of the United States District
Court for the Southern District of New York, and each hereby waives any
objection which it may have based upon lack of personal jurisdiction,
improper venue or forum non conveniens.
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Section 9.3. Notices. All notices or other communications required
or permitted under this Agreement shall be in writing and sufficient if sent by
registered or certified mail, postage prepaid, addressed as provided below; or
delivered personally, by private courier or fax, and followed by such mailing:
If to Alleghany, to
Alleghany Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
Senior Vice President, General Counsel
and Secretary
If to Chicago Title, to
Chicago Title Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx, Xx., Esq.
Executive Vice President, General Counsel and
Secretary
Either party may change the person and address to which notices or other
communications are to be sent to it by giving written notice of any such change
in the manner provided herein.
Section 9.4. Limitation. From and after the Distribution Date,
Alleghany shall be under no obligation, for any purpose whatsoever, to deliver
shares of Alleghany Common Stock to any member of the Chicago Title Group or in
connection with any employee plan or executive compensation plan maintained by
any member of the Chicago Title Group, whether before or after the Distribution
Date.
Section 9.5. Entire Agreement; Amendment. This Agreement, together
with the other agreements set forth on Exhibit C hereto and the exhibits and
other documents delivered pursuant hereto, sets forth the entire agreement and
understanding of the parties hereto in respect of the transactions contemplated
hereby, and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof. No party hereto has relied upon any oral
or written statement, representation, warranty, covenant, condition,
understanding or agreement made by any other party or any representative, agent
or employee thereof, except for those expressly set forth in this Agreement or
in the exhibits or other documents delivered pursuant hereto. This Agreement may
be amended, modified, superseded or supplemented only by an instrument in
writing executed and delivered by Alleghany and Chicago Title. Nothing herein is
intended to diminish any of the rights or obligations of any of the parties to
the Tax Agreement or to any of the AAM Agreements.
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Section 9.6. Assignment. This Agreement shall inure to the benefit
of, and be binding upon, the respective successors, heirs, executors,
administrators, legal representatives and permitted assigns of the parties
hereto; provided, however, that no assignment of any rights or delegation of any
obligations provided for herein shall be made by any party hereto without the
express prior written consent of the other party, which consent shall not be
unreasonably withheld.
Section 9.7. Survival of Agreements and Covenants. Except as
otherwise expressly provided herein, all agreements and covenants of the parties
hereto which are contained in this Agreement, together with the exhibits and
other documents delivered pursuant hereto, shall survive the Distribution and
remain operative and in full force and effect, regardless of any investigation
heretofore or hereafter made by or on behalf of any of the parties hereto.
Section 9.8. Parties in Interest. Neither of the parties hereto may
assign its rights or delegate any of its duties under this Agreement without the
prior written consent of each other party. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
Section 9.9. Further Assurances and Consents. In addition to the
actions specifically provided for elsewhere in this Agreement, each of the
parties hereto will use its reasonable efforts to (i) execute and deliver such
further instruments and documents and take such other actions as any other party
may reasonably request in order to effectuate the purposes of this Agreement and
to carry out the terms hereof and (ii) take, or cause to be taken, all actions,
and to do, or cause to be done, all things, reasonably necessary, proper or
advisable under applicable laws, regulations and agreements or otherwise to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, using its reasonable efforts to obtain any
consents and approvals and to make any filings and applications necessary or
desirable in order to consummate the transactions contemplated by this
Agreement; provided that no party hereto shall be obligated to pay any
consideration therefor (except for filing fees and other similar charges) to any
third party from whom such consents, approvals and amendments are requested or
to take any action or omit to take any action if the taking of or the omission
to take such action would be unreasonably burdensome to the party or its Group
or the business thereof.
Section 9.10. Certain Plan Liabilities. The allocation of any
Liabilities attributable to any employee pension benefit plan (as defined in
Section 3(2)(A) of ERISA) in which persons employed by the Alleghany Business
and the Chicago Title Business both participated shall be governed by the
Employee Benefits Transition Agreement.
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Section 9.11. Severability. In the event that any provision hereof
is prohibited or unenforceable in any jurisdiction, such provision shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 9.12. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware.
Section 9.13. Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which shall be deemed to be an
original, but which together shall constitute one and the same instrument.
Section 9.14. Headings. The section headings contained in this
Agreement are inserted for convenience of reference only and shall not affect
the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, each party hereto has duly executed this
Agreement, or has caused this Agreement to be duly executed, as of the date
first above written.
ALLEGHANY CORPORATION
By /s/ Xxxx X. Xxxxx, Xx.
----------------------------------------
Xxxx X. Xxxxx, Xx.
President and Chief Executive Officer
CHICAGO TITLE CORPORATION
By /s/ Xxxx Xxx
-----------------------------------------
Xxxx Xxx
President and Chief Executive Officer
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