Exhibit 2
DISTRIBUTION AGREEMENT
dated as of December 30, 1996,
between XXXX CORPORATION, a
Virginia corporation ("Xxxx"),
and PRIMEX TECHNOLOGIES, INC.,
a Virginia corporation
("Primex").
The Board of Directors of Olin has determined 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 Primex (the "Primex Common Shares"). It is desirable to allocate and
assign responsibility for various matters affecting the activities of Primex and
to set forth the principal corporate transactions 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 hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. 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, 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 indirectly 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 LLC, as transfer
agent for Olin and Primex.
"Ancillary Agreements" shall mean all of the written agreements,
instruments, understandings, assignments or other arrangements (other than this
Agreement) entered into in connection with the transactions contemplated hereby,
including, without limitation, (i) the Tax Sharing Agreement, (ii) the Powder
Supply Requirements Agreement, (iii) the Xxxxxxxx Exclusive Distributorship
Agreement, (iv) the Australia Agency Agreement, (v) the Covenant Not to Compete
Agreement, (vi) the Technology Transfer and License Agreement, (vii) the
Component Supply Agreement, (viii) the Indemnity Agreement, (ix) the Transition
Services Agreement, (x) the Raufoss Assignment, (xi) the Trade Name License
Agreement, (xii) the Ball Powder Assignment and (xiii) the Powder Supply Pricing
Agreement.
"Australia Agency Agreement" shall mean the Australia Agency Agreement
dated as of December 31, 1996, between Primex and Xxxx Australia Ltd.
"Ball Powder Assignment" shall mean the Assignment of Ball Powder
Trademark to Primex and Limited License to Olin Agreement dated as of
December 30, 1996, between Olin and Primex.
"Xxxxxxxx Exclusive Distributorship Agreement" shall mean the Xxxxxxxx
Exclusive Distributorship Agreement dated as of December 31, 1996, between Olin
and Primex.
"Claims Administration" shall mean (i) the processing of claims made
under Company Policies, including the reporting of claims and occurrences to the
appropriate insurance carriers and the collection of the proceeds of Company
Policies and (ii) in the case of the Primex 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.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the Treasury regulations promulgated thereunder, including any successor
legislation.
"Commission" shall have the meaning set forth in Section 3.02(b).
"Company Policies" shall mean all Policies, current or past, under
which Olin or any subsidiary, affiliate or predecessor of Olin is a named
insured.
"Component Supply Agreement" shall mean the Component Supply Agreement
dated as of December 31, 1996, between Olin and Primex.
"Conveyancing and Assumption Instruments" shall mean, collectively,
the various agreements, instruments and other documents to be entered into to
effect the transfer of assets and the assumption of Liabilities in the manner
contemplated by this Agreement.
"Covenant Not to Compete Agreement" shall mean the Covenant
Not to Compete Agreement dated as of December 31, 1996, between Olin and Primex.
"Credit Agreement" shall mean the Credit Agreement among Olin, Primex
Xxxxxx Guaranty Trust Company of New York, as Agent, and the several banks named
therein which will be assumed by Primex prior to the Distribution Date pursuant
to Section 2.02 hereof and which is intended to provide financing and working
capital for Primex after the Distribution.
"Distribution" shall mean the distribution to holders of record of
shares of Olin Common Stock as of the Distribution Record Date of the Primex
Common Shares owned by Olin on the basis of one Primex Common Share for every
10 shares of Olin Common Stock. The Distribution shall be deemed effective as
of the Effective Time.
"Distribution Date" shall mean January 6, 1997, or such other date as
may hereafter be determined by Olin's Board of Directors as the date on which
certificates representing the Common Shares shall be distributed by the Agent to
holders of record of shares of Olin Common Stock on the Distribution Record
Date.
"Distribution Record Date" shall mean December 19, 1996, or such other
date as may hereafter be determined by Olin's Board of Directors as the record
date for the Distribution.
"Effective Time" shall mean midnight on December 31, 1996, or such
other date as may hereafter be determined by Olin's Board of Directors as the
date on which the Distribution shall be deemed effective.
"Indemnity Agreement" shall mean the Assumption of Liabilities and
Indemnity Agreement dated as of December 31, 1996, between Olin and Primex.
"Information Statement" shall mean the Information Statement dated
December 9, 1996, sent to the holders of shares of Olin Common Stock in
connection with the Distribution, including any amendment or supplement thereto.
"Insurance Proceeds" shall mean those monies (i) received by an
insured from an insurance carrier or (ii) paid by an insurance carrier on behalf
of an insured, in either case net of any applicable premium adjustment,
retrospectively-rated premium, deductible, retention, or cost of reserve paid or
held by or for the benefit of such insured.
"Insured Claims" shall mean those Liabilities that, individually or in
the aggregate, are covered within the terms and conditions of any Company
Policy, whether or not subject to deductibles, uncollectability or
retrospectively-rated premium adjustments, but only to the extent that such
Liabilities are within applicable Company Policy limits, including aggregates.
"Liabilities" shall mean any and all debts, liabilities and
obligations, absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising,
including, without limitation, 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.
"Management Security Plan" shall mean the Management Security Plan of
Rockcor, Inc., as amended from time to time, and any agreement relating thereto
or any successor plan.
"Olin Business" shall mean the businesses of any division, Subsidiary
or investment of Olin (other than the Primex Business) managed or operated prior
to the Effective Time by any such business entity.
"Olin CEOP Plan" shall mean the Xxxx Corporation Contributing Employee
Ownership Plan, as in effect at the Effective Time.
"Olin Liabilities" shall mean collectively, (i) all the Liabilities of
Olin and its Subsidiaries under this Agreement and any of the Ancillary
Agreements and (ii) all the Liabilities of the parties hereto or their
respective Subsidiaries (whenever arising whether prior to, at or following the
Effective Time) arising out of or in connection with or otherwise relating to
the management or conduct before or after the Effective Time of the Xxxx
Business.
"Olin Pension Plan" shall mean the Xxxx Corporation Employees Pension
Plan, as in effect at the Effective Time.
"Olin Supplemental Plans" shall mean, collectively, the Xxxx
Corporation Senior Executive Benefit Plan, the Olin Deferral Benefit Plan, the
Olin Supplementary Pension Plan and the Olin Supplemental Contributing Employee
Ownership Plan, each as in effect on the Distribution Date.
"person" shall mean any natural person, corporation, 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,
without limitation, 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.
"Powder Supply Pricing Agreement" shall mean the Powder Supply Pricing
Agreement dated as of December 31, 1996, between Olin and Primex.
"Powder Supply Requirements Agreement" shall mean the Powder Supply
Requirements Agreement dated as of December 31, 1996, between Olin and Primex.
"PRIME" shall mean the Primex Technologies, Inc. Retirement Investment
Management Experience Plan to be adopted by Primex effective as of the Effective
Time and referred to in the Information Statement.
"Primex Assets" shall mean, collectively, all the rights and assets of
Olin and its Subsidiaries relating to the Primex Business, including, without
limitation, all the outstanding capital stock or other interests of Primex in
Subsidiaries of Primex and the technology, patents, trademarks and other
intellectual property described in the Technology Transfer and License Agreement
and the Ball Powder Assignment.
"Primex Business" shall mean the ordnance and aerospace businesses
heretofore conducted by Olin, other than those businesses set forth on
Exhibit A, and business activities acquired, developed or established by or for
Primex or any of its Subsidiaries after the date of this Agreement.
"Primex Liabilities" shall mean, collectively, (i) all the Liabilities
of Primex and its Subsidiaries under this Agreement and any of the Ancillary
Agreements and (ii) all the Liabilities of the parties hereto or their
respective Subsidiaries (whenever arising whether prior to, at or following the
Effective Time) arising out of or in connection with or otherwise relating to
the management or conduct before or after the Effective Time of the Primex
Business.
"Primex Supplemental Plan" shall mean the nonqualified, unfunded
Supplemental Savings and Retirement Plan or supplemental compensation program to
be adopted by Primex effective as of the Effective Time and referred to in the
Information Statement.
"Raufoss Assignment" shall mean the Assignment of Raufoss Agreements
and Sublicense to Olin for Small Caliber Ammunition dated as of December 30,
1996, between Olin and Primex.
"Subsidiary" shall mean any corporation, partnership 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).
"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 December 31, 1996, among Olin and Primex.
"Technology Transfer and License Agreement" shall mean the Technology
Transfer and License Agreement dated as of December 30, 1996, between Olin and
Primex.
"Trade Name License Agreement" shall mean the Trade Name License
Agreement dated as of December 31, 1996, between Olin and Primex.
"Transition Services Agreement" shall mean the Transition Services
Agreement dated as of December 31, 1996, between Olin and Primex.
SECTION 1.02. REFERENCES; INTERPRETATION. 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" are, unless
otherwise specified, to one of the Sections of this Agreement.
ARTICLE II
DISTRIBUTION AND OTHER TRANSACTIONS; CERTAIN COVENANTS
SECTION 2.01. THE DISTRIBUTION AND OTHER TRANSACTIONS. (a) CERTAIN
TRANSACTIONS. At or prior to the Effective Time:
(i) Olin shall contribute to Primex the business entities that are to
comprise the Primex Business (to the extent they are not owned by Primex or
any of its Subsidiaries).
(ii) Olin shall, on behalf of itself and its Subsidiaries, transfer
to Primex effective as of the Effective Time all of Olin's and its
Subsidiaries' right, title and interest in the Primex Assets.
(b) STOCK DIVIDEND TO OLIN. At or prior to the Effective Time,
Primex shall issue to Olin as a stock dividend the number of Primex Common
Shares required to effect the Distribution. In connection therewith Olin shall
deliver to Primex for cancellation the share certificate (or certificates)
currently held by it representing Primex Common Shares and shall receive a new
certificate (or certificates) representing the total number of Primex Common
Shares to be owned by Olin after giving effect to such stock dividend.
(c) CHARTER; BY-LAWS. At or prior to the Effective Time, all
necessary action shall have been taken to provide for the adoption of the form
of Amended and Restated Articles of Incorporation and By-laws of Primex
substantially in the forms attached hereto as Exhibits B and C, respectively.
(d) DIRECTORS. At or prior to the Effective Time, Olin, as the sole
shareholder of Primex, shall have taken all necessary action to elect, or cause
to be elected, to the Board of Directors of Primex the individuals identified in
the Information Statement as directors of Primex, such elections to be effective
on or prior to January 1, 1997.
(e) CERTAIN LICENSES AND PERMITS. At or prior to the Effective Time
or as soon as reasonably practicable thereafter, all transferable licenses,
permits and authorizations issued by governmental or regulatory entities which
relate to the Primex Business but which are held in the name of Olin or any of
its Subsidiaries (other than any Subsidiary of Primex), or any of their
respective employees, officers, directors, stockholders, agents, or otherwise,
on behalf of Primex (or its Subsidiaries) shall be duly and validly transferred
by Olin to Primex (or its Subsidiaries).
(f) LEASE AMENDMENTS. At or prior to the Effective Time, amendments
shall be executed to each of the leases to which Olin is a party and which
provide for the lease of real or personal property representing Primex Assets or
relating to the Primex Business which amendments will provide for the
substitution of Primex for Olin as lessee or lessor, as the case may be, and
excuse Olin from any further liabilities or responsibilities with respect
thereto.
(g) TRANSFER OF AGREEMENTS. (i) Olin hereby agrees that at or prior
to the Effective Time or as soon as reasonably practicable thereafter, subject
to the limitations set forth in this Section 2.01(g) and the terms of the
Ancillary Agreements, it will, and it will cause its Subsidiaries (other than
Primex or any of its Subsidiaries) to, assign, transfer and convey to Primex all
of Olin's or such Subsidiary's respective right, title and interest in and to
any and all agreements that, in Olin's sole judgment, relate exclusively to the
Primex Business. Primex hereby agrees that at or prior to the Effective Time or
as soon as reasonably practicable thereafter, subject to the limitations set
forth in this Section 2.01(g), it will, and it will cause its Subsidiaries to,
assign, transfer and convey to Olin all of Primex's or each such Subsidiary's
respective right, title and interest in and to any and all agreements that, in
Olin's sole judgment, relate exclusively to the Xxxx Business.
(ii) Subject to the provisions of this Section 2.01(g) and the terms
of the Ancillary Agreements, any agreement to which the parties hereto or any of
their Subsidiaries is a party that inures, in Olin's sole judgment, to the
benefit of both the Xxxx Business and the Primex Business shall be assigned in
part, on or prior to the Effective Time or as soon as reasonably practicable
thereafter, so that each party shall be entitled to the rights and benefits
inuring to its business under such agreement.
(iii) The assignee of any agreement assigned, in whole or in part,
hereunder (an "Assignee"), shall assume and agree to pay, perform, and fully
discharge all obligations of the assignor under such agreement or, in the case
of a partial assignment under paragraph (g)(ii), the assignor's related portion
of such obligations as determined in accordance with the terms of the relevant
agreement, where determinable on the face thereof, and otherwise as determined
in accordance with the practice of the parties prior to the Distribution.
(iv) Notwithstanding anything in this Agreement to the contrary, this
Agreement shall not constitute an agreement to assign any agreement, 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 constitute a breach thereof
or in any way adversely affect the rights of 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 arrangement designed to provide for the Assignee the benefits
of, and to permit the Assignee to assume liabilities under, any such agreement.
(h) CONSENTS. The parties hereto shall use commercially reasonable
efforts to obtain required consents to assignment of agreements hereunder.
(i) DELIVERY OF SHARES TO AGENT. At or prior to the Effective Time,
Olin shall deliver to the Agent the share certificate or certificates
representing the Primex Common Shares issued to Olin by Primex, pursuant to
Section 2.01(b) and shall instruct the Agent to distribute, on or as soon as
practicable following the Distribution Date, such Common Shares to holders of
record of shares of Olin Common Stock on the Distribution Record Date as further
contemplated by, and subject to the conditions contained in, the Information
Statement and this Agreement. Primex shall provide all share certificates that
the Agent shall require in order to effect the Distribution.
(j) OTHER TRANSACTIONS. At or prior to the Effective Time, Olin and
Primex 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)-(i) above.
SECTION 2.02. FINANCING. Each of the parties hereto shall take all
actions necessary to cause Primex to assume Olin's rights and obligations under
the Credit Agreement immediately prior to the Effective Time, provided that Olin
shall have no obligation to guarantee or otherwise provide credit support or
enhancement for the obligations of Primex under such Credit Agreement.
SECTION 2.03. OPERATIONS IN ORDINARY COURSE. Each of Olin and Primex
agrees that, except as otherwise provided in any Ancillary Agreement or this
Agreement, during the period from the date of this Agreement through the
Effective Time, 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,
without limitation, 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 Olin and Primex agrees to
use commercially reasonable efforts to achieve both an allocation of
consolidated indebtedness of Olin and a capital structure of Primex which
substantially reflects the capital structure after the Distribution of Primex
set forth in the Information Statement under the heading "Capitalization".
SECTION 2.05. ASSUMPTION AND SATISFACTION OF LIABILITIES. Except as
otherwise specifically set forth in any Ancillary Agreement, from and after the
Effective Time, (i) Olin shall, and shall cause its Subsidiaries to, assume,
pay, perform and discharge all Olin Liabilities, and (ii) Primex shall, and
shall cause its Subsidiaries to, assume, pay, perform and discharge all Primex
Liabilities.
SECTION 2.06. RESIGNATIONS. Olin shall cause all its directors,
officers and employees to resign, effective as of December 31, 1996, from all
positions as officers of Primex or as officers or directors of any Subsidiary of
Primex in which they serve. Primex shall cause all its employees to resign,
effective as of December 31, 1996, from all positions as officers of Olin or as
officers or directors of any Subsidiary of Olin in which they serve.
SECTION 2.07. FURTHER ASSURANCES. In case at any time after the
Effective Time any further action is reasonably necessary or desirable to carry
out the purposes of this Agreement and the Ancillary Agreements, the proper
officers of each party to this Agreement shall take all such necessary action.
Without limiting the foregoing, Olin and Primex shall use commercially
reasonable efforts to obtain all consents and approvals, to enter into all
amendatory agreements 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, without limitation, all applicable
governmental and regulatory filings and novations.
SECTION 2.08. NO REPRESENTATIONS OR WARRANTIES. Each of the parties
hereto understands and agrees that, except as otherwise expressly provided, no
party hereto is, in this Agreement or in any other agreement or document
contemplated by this Agreement or otherwise, making any representation or
warranty whatsoever, including, without limitation, 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 2.07) 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 the 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 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 applicable 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 2.09. ELIMINATION OF GUARANTEES. Except as otherwise
specified in any Ancillary Agreement, Olin and Primex shall use their
commercially reasonable efforts to have, on or prior to the Effective Time, or
as soon as practicable thereafter, Olin and any of its Subsidiaries removed as
guarantor of or obligor for any Primex Liability or Liabilities, including,
without limitation, in respect of those guarantees set forth on Schedule 2.09.
To the extent that Olin or any of its Subsidiaries cannot be removed as
guarantor of or obligor for any such Primex Liability or Liabilities, Primex
agrees that, notwithstanding any contrary provision contained in any Novation
Agreement referred to in Schedule 2.09, until such Primex Liability or
Liabilities shall have been discharged in full, Primex 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 Olin or any of its
Subsidiaries with respect to such Primex Liability or Liabilities without Olin's
prior written consent; provided however, with respect to any guaranty arising in
connection with any Novation Agreement referred to in Schedule 2.09, Primex may
modify (but not extend) the U.S. Government contracts relating to such Novation
Agreements without Olin's prior 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 2.10. WITNESS SERVICES. At all times from and after the
Effective Time, each of Olin and Primex shall use commercially reasonable
efforts to make available to each other, upon reasonable 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. A party providing witness services to the other
party under this Section shall be entitled to receive from the recipient of such
services, upon the presentation of invoices therefor, payments for such amounts,
relating to supplies, disbursements and other out-of-pocket expenses and direct
and indirect costs of employees who are witnesses, as may be reasonably incurred
in providing such witness services.
SECTION 2.11. CERTAIN POSTDISTRIBUTION TRANSACTIONS. Each of Olin
and Primex agrees that (i) it shall comply with and otherwise not take action
inconsistent with each representation and statement made to Cravath, Swaine &
Xxxxx in connection with such firm's rendering an opinion to Olin and Primex as
to certain tax aspects of the Distribution and (ii) until one year after the
Distribution Date, it will maintain its status as a company engaged in the
active conduct of a trade or business, as defined in Section 355(b) of the Code.
SECTION 2.12. TRANSFERS NOT EFFECTED PRIOR TO EFFECTIVE TIME;
TRANSFERS DEEMED EFFECTIVE AS OF EFFECTIVE TIME. To the extent that any
transfers contemplated by this Article II shall not have been consummated at or
prior to the Effective Time, the parties shall cooperate to effect such
transfers as promptly following the Effective Time 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 Effective
Time 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 Effective Time, 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 responsibilities incident thereto,
which such party is entitled to acquire or required to assume pursuant to the
terms of this Agreement.
SECTION 2.13. ANCILLARY AGREEMENTS. At or prior to the Effective
Time, each of Olin and Primex 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
ACCESS TO INFORMATION
SECTION 3.01. PROVISION OF CORPORATE RECORDS. (a) After the
Effective Time, upon the prior written request by Primex for specific and
identified agreements, documents, books, records or files including, without
limitation, computer files, microfiche, tape recordings and photographs
(collectively, "Records"), relating to or affecting Primex, Olin 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 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 Effective Time, upon the prior written request by Xxxx
for specific and identified Records relating to or affecting Xxxx, Primex 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 Primex or any of its Subsidiaries, but only to
the extent such items are not already in the possession of the requesting party.
SECTION 3.02. ACCESS TO INFORMATION. (a) From and after the
Effective Time, Xxxx and Primex shall afford to the other and its authorized
accountants, counsel and other designated representatives (including
governmental representatives 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.
(b) For a period of five years following the Effective Time, each of
Xxxx and Primex shall provide to the other, promptly following such time at
which such documents shall be filed with the Securities and Exchange Commission
(the "Commission"), all documents that shall be filed by it and by any of its
respective Subsidiaries with the Commission pursuant to the periodic and interim
reporting requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
SECTION 3.03. REIMBURSEMENT; OTHER MATTERS. (a) Except to the
extent otherwise contemplated by any Ancillary Agreement, a party providing
Records or access to information to the other party under this Article III shall
be entitled to receive from the recipient, upon the presentation of invoices
therefor, payments for such amounts, relating to supplies, disbursements and
other out-of-pocket expenses, as may be reasonably incurred in providing such
Records or access to information.
(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 3.04. CONFIDENTIALITY. Each of Xxxx and its Subsidiaries and
Primex 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 or (D) such information is independently
developed by such party without reference to such information) to the extent
such information (x) relates to the period up to the Effective Time, (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 of the parties hereto agrees to consult with each
relevant other party in connection with any such judicial or administrative
process, including, without limitation, in determining whether any privilege is
available, and further agrees to allow each such relevant party and its counsel
to participate in any hearing or other proceeding (including, without
limitation, any appeal of an initial order to disclose) in respect of such
disclosure and assertion of privilege.
ARTICLE IV
DISPUTE RESOLUTION
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, without limitation, any
claim based on contract, tort, statute or constitution (collectively, "Agreement
Disputes"), the General Counsels (or their designees) of the relevant parties
shall negotiate in good faith for a reasonable period of time to settle such
Agreement Dispute.
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. 10(a) as in effect on the date hereof), and
judgment may be entered by any state or Federal court having jurisdiction
thereof in accordance with Section 9.19 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 hereunder. Any controversy concerning whether an Agreement
Dispute is an arbitrable Agreement Dispute, whether arbitration has been waived,
whether an assignee of this Agreement is bound to arbitrate, or as to the
interpretation of enforceability of this Article VI 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, without limitation, 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 proceedings 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, without limitation, 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 V
INSURANCE
SECTION 5.01. COVERAGE. As of the Effective Time, coverage of Primex
and its Subsidiaries shall cease under current Company Policies, except as
provided in this Article V. From and after the Effective Time, Primex and its
Subsidiaries will be responsible for obtaining and maintaining insurance
coverages for their own account, and, with respect to policies of commercial
general liability insurance, shall name Xxxx as an additional insured with
respect to liabilities assumed by Primex under the Indemnity Agreement. To the
extent that liabilities arising from the activities of Xxxx prior to the
Effective Time are covered by Company Policies, and result in the assertion of
claims against Primex after the Effective Time, it is the intention of the
parties that, without increasing or expanding the risks assumed by the insurer,
Primex will have the benefit of such insurance coverage after the Effective
Time. No assignment pursuant to Section 5.02 is intended to increase the
liability of any insurer under a Company Policy. If and when such assignment
occurs, it is Olin's intention to assign only such coverage as would have been
available to Xxxx in respect of the Primex Business if the Distribution had not
occurred.
SECTION 5.02. CLAIMS FOLLOWING THE EFFECTIVE TIME; WAIVER. (a) If,
subsequent to the Effective Time, any person shall assert a claim or institute a
suit, action or proceeding against Primex or any of its Subsidiaries (including,
without limitation, where Primex or its Subsidiaries are joint defendants with
other persons) with respect to any injury, loss, liability, damage or expense
incurred or claimed to have been incurred prior to the Effective Time in the
course of or in connection with the conduct of the Primex Business and which
injury, loss, liability, damage or expense may constitute an insured or
insurable occurrence under one or more Company Policies, Xxxx shall, at the time
such claim is asserted, be deemed, without need of further documentation, to
assign to Primex 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 Primex
contemplated by this Article V, if necessary, and then only to the extent
necessary, to convey to Primex 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
Primex has payment obligations pursuant to Section 5.05 or otherwise, Primex and
its Subsidiaries shall only have the rights set forth under this Section 5.02(a)
with respect to such Company Policies if such payment obligations have been
satisfied by Primex.
(b) Notwithstanding any contrary provision contained herein, Xxxx
shall at all times retain the Company Policies, together with the rights,
benefits and privileges thereunder, including without limitation 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 5.02(a), and PROVIDED FURTHER that Section 5.02(a) is not intended to
limit, inhibit or preclude any rights, benefits or privileges Xxxx may have
under Company Policies. Primex hereby specifically agrees that Xxxx, in its
sole discretion, may at any time and without the consent of Primex or any of its
Subsidiaries, extinguish any rights Primex and its Subsidiaries may have under
Company Policies, including any rights granted pursuant to Section 5.02(a), and
grant a release to any insurance carrier absolving such carrier from further
liability pursuant to any Company Policy, including for claims asserted with
respect to Liabilities assumed by Primex under the Indemnity Agreement. Xxxx
shall promptly notify Primex of the extinguishment of any such rights.
SECTION 5.03. ADMINISTRATION. Except as provided in the third
sentence of this Section 5.03, from and after the Effective Time, Xxxx shall be
responsible for Claims Administration with respect to Xxxx Liabilities and
Primex or a Primex Subsidiary, as appropriate, shall be responsible for Claims
Administration with respect to Primex Liabilities. Except as provided in the
third sentence of this Section 5.03, Xxxx hereby appoints Primex as its agent
and attorney in fact to assert claims against insurance carriers and to
otherwise perform Claims Administration with respect to Primex Liabilities.
Notwithstanding the foregoing, Xxxx shall be responsible for Claims
Administration with respect to Primex Liabilities with respect to which Xxxx is
engaged in coverage litigation as of the Effective Time ("Litigated Primex
Liabilities").
SECTION 5.04. INSURANCE PROCEEDS. Proceeds received with respect to
claims made under Company Policies shall be paid to Xxxx with respect to Xxxx
Liabilities and to Primex with respect to Primex Liabilities; PROVIDED, that
proceeds received with respect to Litigated Primex Liabilities shall be
allocated between Xxxx and Primex pro rata based on the amounts actually
expended by the parties in connection therewith.
SECTION 5.05. RETROSPECTIVELY RATED POLICIES. From and after the
Effective Time, 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 Primex, or shall
distribute to Primex, amounts equal to the portion of any such additional
premium or rebate, as applicable, which relates to the Primex Business. From
and after the Effective Time, any additional premiums payable or rebates of
premiums previously paid in respect of any retrospectively rated Policy of
Primex or any of its Subsidiaries (including without limitation Policies
maintained by or for the benefit of General Defense Corporation) shall be paid
or collected by Primex or its Subsidiaries.
SECTION 5.06. 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 5.06 shall be construed to limit or otherwise alter in any way the
obligations of the parties to this Agreement, including those created by this
Agreement, by operation of law or otherwise.
SECTION 5.07. COOPERATION. The parties hereto agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement.
SECTION 5.08. INDEMNITY AGREEMENT. The parties hereto agree that the
amount which any indemnifying party is or may be required to pay to an
indemnified party pursuant to the Indemnity Agreement 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 Liability (as defined in the Indemnity
Agreement). If an indemnified party shall have received the payment (an
"Indemnity Payment") required by the Indemnity Agreement from an indemnifying
party in respect of any Liability (as defined in the Indemnity Agreement) and
shall subsequently actually receive proceeds of insurance policies or other
amounts in respect of such Liability, then such indemnified party shall repay 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 thereunder). An
insurer who would otherwise be obligated to pay any claim shall not, solely by
virtue of the indemnification provisions contained in the Indemnity Agreement,
be relieved of its responsibility with respect thereto, 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 contained in the Indemnity Agreement by virtue thereof.
ARTICLE VI
EMPLOYEE OBLIGATIONS AND BENEFIT PLANS
SECTION 6.01. RETIREMENT PLANS. (a) RECOGNITION OF SERVICE BY
XXXX. Effective as of the Effective Time, Xxxx shall cause the Xxxx Pension
Plan to be amended to (i) recognize all Creditable Service (as defined in the
Xxxx Pension Plan) by employees of Xxxx who have transferred from Xxxx or any of
its Subsidiaries directly to Primex on or within five years following the
Effective Time; (ii) include in such employees' Final Average Pay (as defined in
the Xxxx Pension Plan) compensation received from Primex or any of its
Subsidiaries, as determined at the time of retirement from Primex or any such
Subsidiary; and (iii) to recognize service with Primex or any of its
Subsidiaries on and after the Effective Time for the purpose of meeting all
vesting and early retirement requirements of the Xxxx Pension Plan (but not for
the purpose of calculating benefit service credit thereunder). Employees of
Primex who are eligible to receive benefits under the Xxxx Pension Plan, as
amended as contemplated above, will not be entitled to receive such benefits
prior to retirement from Primex.
(b) ADOPTION OF PRIME. Effective as of the Effective Time, Primex
shall adopt PRIME. PRIME shall recognize all prior service with Xxxx or any of
its Subsidiaries for the purpose of meeting all vesting requirements thereunder
(but not for the purpose of calculating benefit service credit thereunder) for
all individuals who become employees of Primex or any of its Subsidiaries within
five years following the Effective Time and who were employed by Xxxx or any of
its Subsidiaries immediately prior to becoming an employee of Primex. No Xxxx
Pension Plan assets will be transferred to Primex or any employee benefit trust
of Primex.
(c) MANAGEMENT SECURITY PLAN. Primex hereby agrees to assume, and
shall indemnify and hold harmless Xxxx from and against, all claims brought
against Xxxx or any of its Subsidiaries under the Management Security Plan by
any employee of Primex or any of its Subsidiaries who retires after the
Effective Time.
SECTION 6.02. INVESTMENT AND SAVINGS PROGRAMS. (a) XXXX CEOP
PLAN. Employee contributions and employer matching contributions under the Xxxx
CEOP Plan will cease as of the Effective Time (or any subsequent date within
five years following the Effective Time on which an employee of Xxxx transfers
directly to Primex) in respect of all Primex employees. Participants under the
Xxxx CEOP Plan who are employees of Primex at the Effective Time will be 100%
vested in their account balances thereunder as of such date.
(b) TRANSFER OF CEOP ACCOUNT. Xxxx and Primex will cause the account
balance of any participant under the Xxxx CEOP Plan who will be an employee of
Primex at the Effective Time to be transferred to PRIME unless instructed by a
participant to the contrary prior to the date determined by Xxxx for such
purpose.
SECTION 6.03. SUPPLEMENTAL PLANS. Effective as of the Effective
Time, Xxxx shall continue to sponsor the Xxxx Supplemental Plans, subject to the
terms thereof. Xxxx hereby assumes all liability for benefits (whether funded
or unfunded) that have accrued prior to the Effective Time under the Xxxx
Supplemental Plans with respect to persons who immediately after the
Distribution are employed on a salaried basis by Primex. Effective as of the
Effective Time, Primex shall adopt the Primex Supplemental Plan, which will be
designed to restore any benefits under PRIME that would otherwise be reduced as
a result of limitations contained in the Code for certain employees. Prior
service with Xxxx will be recognized under the Primex Supplemental Plan for the
purpose of meeting all vesting requirements thereunder.
SECTION 6.04. RETIREE WELFARE AND LIFE INSURANCE PLANS. Effective as
of the Effective Time, Xxxx shall continue to sponsor the retiree medical
benefit and life insurance plans of Xxxx. Xxxx hereby agrees that it will
retain all liability with respect to medical and life insurance benefits
provided to former employees of the Ordnance and Aerospace Divisions of Xxxx who
retire prior to the Effective Time. Effective as of the Effective Time, Primex
shall adopt a medical and life insurance benefits plan substantially similar to
Olin's retiree benefits program. Other than possible increases in employee
contributions, Primex hereby agrees that the benefits provided under its retiree
medical and life insurance benefits program shall not be reduced or terminated
prior to the fifth anniversary of the Effective Time. Primex hereby agrees to
assume, and shall indemnify and hold harmless Xxxx from and against, all claims
brought against Xxxx or any of its Subsidiaries under Olin's retiree medical and
life insurance benefit plans by any employee of Primex who retires after the
Effective Time.
SECTION 6.05. OTHER BENEFITS. Xxxx shall continue to be responsible
for health care and disability claims incurred by an employee of Xxxx or any of
its Subsidiaries prior to the Effective Time under existing Xxxx benefit plans.
Effective as of the Effective Time, Primex shall adopt health care and
disability benefits programs affording benefits substantially similar to those
provided under Olin's benefit plans covering claims incurred by all employees of
Primex or any of its Subsidiaries after the Distribution Date.
SECTION 6.06. SEVERANCE CLAIMS. Primex shall assume, and shall
indemnify and hold Xxxx harmless against, all claims and liabilities for
severance, change-in-control or termination benefits arising out of or resulting
from the transfer of employment of any employee of Xxxx or any of its
Subsidiaries to Primex or any of its Subsidiaries at the Effective Time.
SECTION 6.07. BARGAINING EMPLOYEES. Primex hereby acknowledges and
agrees that it shall be the "successor employer" to Xxxx under the collective
bargaining agreements listed on Schedule 6.07 (the "Collective Bargaining
Agreements"). Effective as of the Effective Time, Primex shall adopt a pension
plan and establish a pension trust for the purpose of funding benefits which
accrue under the Collective Bargaining Agreements following the Effective Time.
Credited service accrued under the Xxxx Pension Plan prior to the Effective Time
with respect to the Collective Bargaining Agreements will be recognized under
such Primex pension plan for the purpose of meeting all vesting and early
retirement requirements thereunder (but not for the purpose of calculating
benefit service credit thereunder). No Xxxx pension assets for bargaining
employees will be transferred to Primex or to a Primex pension trust for
bargaining employees. The Xxxx Pension Plan shall be responsible for pension
benefits of Olin's bargaining employees which have accrued under the Collective
Bargaining Agreements prior to the Effective Time.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COMPLETE AGREEMENT; CONSTRUCTION. 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. In the event of any inconsistency
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 7.02. 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 7.03. 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 7.04. SURVIVAL OF AGREEMENTS. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Effective Time.
SECTION 7.05. EXPENSES. Except as otherwise set forth in this
Agreement or any Ancillary Agreement, all costs and expenses incurred on or
prior to the Effective Time (whether or not paid on or prior to the Effective
Time) 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; PROVIDED that Xxxx shall not be responsible for
those costs or expenses incurred by Primex (including, without limitation, any
attorney or financial advisor fees owing to attorneys or financial advisors
retained by Primex). Except as otherwise set forth in this Agreement or any
Ancillary Agreement, each party shall bear its own costs and expenses incurred
after the Effective Time.
SECTION 7.06. 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
X.X. Xxx 0000
Xxxxxxx, XX 00000
Attn: Corporate Secretary
To Primex:
00000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000-0000
Attn: Corporate Secretary
SECTION 7.07. 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 7.08. AMENDMENTS. Subject to the terms of Section 7.11
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by the parties.
SECTION 7.09. ASSIGNMENT. This Agreement shall be assignable in
whole in connection with a merger or consolidation or the sale of all or
substantially all the assets of a party hereto so long as the resulting,
surviving or transferee entity assumes all the obligations of the relevant party
hereto by operation of law or pursuant to an agreement in form and substance
reasonably satisfactory to the other parties to this Agreement. Otherwise 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 others, and any
attempt to assign any rights or obligations arising under this Agreement without
such consent shall be void.
SECTION 7.10. SUCCESSORS AND ASSIGNS. The provisions 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 7.11. TERMINATION. This Agreement may be terminated and the
Distribution may be amended, modified or abandoned at any time prior to the
Effective Time by and in the sole discretion of Xxxx without the approval of
Primex or the shareholders of Xxxx. In the event of such termination, no party
shall have any liability of any kind to any other party or any other person.
After the Effective Time, this Agreement may not be terminated except by an
agreement in writing signed by the parties.
SECTION 7.12. 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 Subsidiary of such
party on and after the Effective Time.
SECTION 7.13. THIRD PARTY BENEFICIARIES. This Agreement is solely
for the benefit of the parties hereto and their respective Subsidiaries and
Affiliates 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 7.14. ATTORNEY FEES. Except as contemplated by the third to
the last sentence of Article IV 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, without limitation, legal fees,
incurred by such other party by reason of the enforcement 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 7.15. 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 7.16. 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 7.17. 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 provisions 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 7.18. 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 7.19. CONSENT TO JURISDICTION. Without limiting the
provisions of Article IV 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 7.19. 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 contemplated
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, and
hereby further irrevocably and unconditionally 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.
SECTION 7.20. 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.
--------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Vice President, General Counsel
and Secretary
PRIMEX TECHNOLOGIES, INC.,
by: /s/Xxxxxxx X. Xxxxxxx, Xx.
--------------------------
Xxxxxxx X. Xxxxxxx, Xx.
Vice President and Secretary
Exhibit A
1. Government owned contractor operated facilities and assets
related thereto, including the stock and assets of Ravenna
Arsenal, Inc. ("RAI") and any rights and recoveries under any
contract with the U.S. Government to which RAI is or was a party.
2. The name "Xxxx Corporation" and derivatives thereof.
3. Certain other assets specifically contemplated by the various
Ancillary Agreements.
Exhibit B -- Articles of Incorporation
[SEE EXHIBIT 3.1 TO THIS FORM 8-K FILING.]
Exhibit C -- By-laws
[SEE EXHIBIT 3.2 TO THIS FORM 8-K FILING.]
Schedule 2.09
GUARANTIES
1. Agreement of Guaranty No. 1, dated December 29, 1986, between
Xxxx Corporation and The Connecticut National Bank, as Trustee.
2. Agreement of Guaranty No. 2, dated December 29, 1986, between
Xxxx Corporation and The Connecticut National Bank, as Trustee.
3. Guaranties of Xxxx Corporation arising under Novation
Agreements with the U.S. Government or agencies thereof entered
into or to be entered into in connection with the Distribution.
Schedule 6.07
COLLECTIVE BARGAINING AGREEMENTS
1. Agreement between Xxxx Corporation and United Xxxxxxxxxxxx xx
Xxxxxxx XXX-XXX-XXX (Xxxxx 00000X) dated December 9, 1989.
2. Agreement between Xxxx Corporation and the International Union,
United Steelworkers of America (AFL-CIO-CLC) on behalf of Local
Number 8018 dated October 15, 1994.
