1
Exhibit 2
[5/30/01]
================================================================================
FORM OF
DISTRIBUTION AGREEMENT
by and among
ROCKWELL INTERNATIONAL CORPORATION,
NEW ROCKWELL XXXXXXX, INC.
and
ROCKWELL SCIENTIFIC COMPANY LLC
================================================================================
June 29, 2001
================================================================================
2
Page
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS..............................................................................1
SECTION 1.01 General..................................................................................1
ARTICLE II THE DISTRIBUTION........................................................................33
SECTION 2.01 The Distribution........................................................................33
SECTION 2.02 Cooperation Prior to the Distribution...................................................33
SECTION 2.03 Rockwell Board Action; Conditions to the Distribution...................................34
SECTION 2.04 Waiver of Conditions....................................................................35
SECTION 2.05 Disclosure..............................................................................35
ARTICLE III TRANSACTIONS RELATING TO THE DISTRIBUTION...............................................35
SECTION 3.01 Intercorporate Reorganization...........................................................35
SECTION 3.02 Financial Instruments...................................................................38
SECTION 3.03 Shared Agreements.......................................................................39
SECTION 3.04 Intercompany Accounts and Arrangements..................................................40
SECTION 3.05 Cash Management.........................................................................41
SECTION 3.06 The Rockwell Xxxxxxx Board and the Rockwell Science Center Board........................44
SECTION 3.07 Resignations; Transfer of Stock Held as Nominee.........................................44
SECTION 3.08 Rockwell Xxxxxxx Certificate of Incorporation and By-Laws; Rights
Plan....................................................................................46
SECTION 3.09 Insurance...............................................................................46
SECTION 3.10 Use of Names, Trademarks, etc...........................................................51
SECTION 3.11 Consents................................................................................57
SECTION 3.12 Intellectual Property...................................................................58
SECTION 3.13 Software and Other License Agreements...................................................63
SECTION 3.14 Charitable Entities.....................................................................64
ARTICLE IV MUTUAL RELEASE; INDEMNIFICATION.........................................................64
SECTION 4.01 Mutual Release..........................................................................64
SECTION 4.02 Indemnification by Rockwell.............................................................65
SECTION 4.03 Indemnification by Rockwell Xxxxxxx.....................................................65
SECTION 4.04 Indemnification by Rockwell Science Center..............................................66
SECTION 4.05 Limitations on Indemnification Obligations..............................................67
SECTION 4.06 Procedures Relating to Indemnification..................................................68
SECTION 4.07 Remedies Cumulative.....................................................................69
SECTION 4.08 Survival of Indemnities.................................................................69
SECTION 4.09 Exclusivity of Tax Allocation Agreement.................................................69
ARTICLE V ACCESS TO INFORMATION...................................................................70
SECTION 5.01 Access to Information...................................................................70
i
3
Page
----
SECTION 5.02 Production of Witnesses.................................................................72
SECTION 5.03 Retention of Records....................................................................72
SECTION 5.04 Confidentiality.........................................................................73
ARTICLE VI MISCELLANEOUS...........................................................................73
SECTION 6.01 Entire Agreement; Construction..........................................................73
SECTION 6.02 Survival of Agreements..................................................................74
SECTION 6.03 Expenses................................................................................74
SECTION 6.04 Governing Law...........................................................................75
SECTION 6.05 Notices.................................................................................75
SECTION 6.06 Dispute Resolution......................................................................77
SECTION 6.07 Consent to Jurisdiction.................................................................77
SECTION 6.08 Amendments..............................................................................78
SECTION 6.09 Assignment..............................................................................78
SECTION 6.10 Captions; Currency......................................................................78
SECTION 6.11 Severability............................................................................78
SECTION 6.12 Parties in Interest.....................................................................79
SECTION 6.13 Schedules...............................................................................79
SECTION 6.14 Termination.............................................................................79
SECTION 6.15 Waivers; Remedies.......................................................................79
SECTION 6.16 Further Assurances......................................................................79
SECTION 6.17 Counterparts............................................................................79
SECTION 6.18 Performance.............................................................................79
SECTION 6.19 Currency Calculations...................................................................80
SECTION 6.20 Interpretation..........................................................................80
ii
4
ANNEXES
Annex A - Employee Matters Agreement
Annex B - Tax Allocation Agreement
SCHEDULES
Schedule 1.01(a) - Rockwell Xxxxxxx Amended By-Laws
Schedule 1.01(b) - Rockwell Xxxxxxx Restated Certificate of Incorporation
Schedule 1.01(c) - Cypress Computer Servers
Schedule 1.01(d) - Rockwell Automation Patents and Trademarks
Schedule 1.01(e) - Rockwell Automation Shared Facilities
Schedule 1.01(f) - Rockwell Automation Aircraft
Schedule 1.01(g) - Former Businesses of Rockwell Automation
Schedule 1.01(h) - Unrelated Former Businesses
Schedule 1.01(i) - Rockwell Xxxxxxx Aircraft
Schedule 1.01(j) - Rockwell Xxxxxxx Patents and Trademarks
Schedule 1.01(k) - Rockwell Xxxxxxx Shared Facilities
Schedule 1.01(l) - Former Businesses of Rockwell Xxxxxxx
Schedule 1.01(m) - Rockwell Xxxxxxx Financial Instruments
Schedule 1.01(n) - Rockwell Xxxxxxx Litigation
Schedule 1.01(o) - Rockwell Xxxxxxx Non-U.S. Bank Accounts
Schedule 1.01(p) - Rockwell Xxxxxxx Subsidiaries
Schedule 1.01(q) - Rockwell Xxxxxxx U.S. Bank Accounts
Schedule 1.01(r) - Rockwell Science Center Patents and Trademarks
Schedule 1.01(s) - Rockwell Science Center Financial Instruments
Schedule 1.01(t) - Rockwell Science Center Litigation
Schedule 1.01(u) - Rockwell Science Center Non-U.S. Bank Accounts
Schedule 1.01(v) - Rockwell Science Center Subsidiaries
Schedule 1.01(w) - Rockwell Science Center U.S. Bank Accounts
Schedule 1.01(x) - Rockwell Xxxxxxx Securities
Schedule 1.01(y) - Rockwell Science Center Securities
Schedule 3.01(c) - Reorganization Transactions
Schedule 3.04(a) - Continuing Intercompany Accounts
Schedule 3.04(b)(ii) - Continuing Intercompany Agreements
Schedule 3.06(b) - Rockwell Science Center Board
Schedule 3.07 - Continuing Directors and Officers
Schedule 3.14 - Rockwell Xxxxxxx Charitable Corporation Commitments
Schedule 4.02(b) - Certain Form 10 Sections
iii
5
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT (this "Agreement"), dated as of June 29,
2001, by and among (i) ROCKWELL INTERNATIONAL CORPORATION, a Delaware
corporation ("Rockwell"), (ii) NEW ROCKWELL XXXXXXX, INC., a Delaware
corporation and, as of the date hereof, a wholly-owned subsidiary of Rockwell
("Rockwell Xxxxxxx"), and (iii) ROCKWELL SCIENTIFIC COMPANY LLC, a Delaware
limited liability company and, as of the date hereof, a wholly-owned subsidiary
of Rockwell ("Rockwell Science Center").
WHEREAS, the Rockwell Board (as defined herein) has determined
that it is appropriate and desirable to distribute all outstanding shares of
Rockwell Xxxxxxx Common Stock (as defined herein) on a pro rata basis to the
holders of Rockwell Common Stock (as defined herein); and
WHEREAS, Rockwell, Rockwell Xxxxxxx and Rockwell Science Center
have determined that it is appropriate and desirable to set forth the principal
corporate transactions required to effect such distribution and certain other
agreements that will govern certain matters relating to such distribution;
NOW, THEREFORE, in consideration of the premises and of the
respective agreements 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" means, with respect to any Person, any actual or
threatened or future action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Entity or any claims or other legal
matters that have been or may be asserted by or against, or otherwise affect,
such Person.
"ADMINISTRATIVE SERVICES" shall have the meaning ascribed thereto
in Section 3.12(g)(i)(A).
"ADMINISTRATIVE SERVICES SOFTWARE" shall have the meaning ascribed
thereto in Section 3.12(g)(i)(B).
6
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person; provided, however, that for purposes of this Agreement, following the
Time of Distribution no member of any Group shall be deemed to be an Affiliate
of any member of any other Group. For purposes of the immediately preceding
sentence, the term "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through ownership of voting securities, by contract or otherwise.
"AGENCY LICENSING AGREEMENTS" means (a) the agency licensing
agreement among Rockwell, Rockwell Science Center and ITL pursuant to which,
among other things, ITL will act as exclusive agent for Rockwell and its
Subsidiaries in connection with the licensing of certain intellectual property
to third parties in fields other than the Rockwell Automation Group's businesses
and (b) the agency licensing agreement by and among Rockwell Xxxxxxx, Xxxxxxxx
Science Center and ITL pursuant to which, among other things, ITL will act as
exclusive agent for Rockwell Xxxxxxx and its Subsidiaries in connection with the
licensing of certain intellectual property to third parties in fields other than
the Rockwell Xxxxxxx Group's businesses.
"AGREEMENT" shall have the meaning ascribed thereto in the
preamble.
"AMENDED AND RESTATED ROCKWELL SCIENCE CENTER LLC AGREEMENT" means
the Amended and Restated Limited Liability Company Agreement of Rockwell Science
Center dated as of the date hereof by and between Rockwell Automation
Technologies, Inc., a Delaware corporation and a Rockwell Subsidiary, and
Rockwell Xxxxxxx Technologies, LLC, a Delaware limited liability company and a
Rockwell Xxxxxxx Subsidiary.
"ANCILLARY AGREEMENTS" means, collectively, the Employee Matters
Agreement, the Tax Allocation Agreement, the Continuing Services Agreements, the
Rockwell Science Center Services Agreements, the Agency Licensing Agreements,
the Amended and Restated Rockwell Science Center LLC Agreement, the Product
Manufacturing Agreement, the Transition Agreement and the Conveyance and
Assumption Instruments.
"ASSETS" means any and all assets, properties and rights, whether
tangible or intangible, real, personal or mixed, fixed, contingent or otherwise,
and wherever located (other than ownership interests in Subsidiaries), including
the following:
(a) real property (including land, plants, buildings and
improvements) and real property interests (including leases);
(b) machinery, equipment, tooling, vehicles, furniture and
fixtures, leasehold improvements, repair parts, tools, plant, laboratory
and office equipment and supplies, computer hardware and software,
computer networking equipment, engineering and design equipment, test
equipment and other tangible personal property, together with any
2
7
rights or claims arising out of maintenance or service contracts relating
thereto or the breach of any express or implied warranty by the
manufacturers or sellers of any of such assets or any component part
thereof;
(c) inventories, including raw materials, work-in-process,
materials, components, finished goods, parts, accessories and supplies;
(d) bank accounts;
(e) cash, cash on hand, cash equivalents, funds, certificates
of deposit, similar instruments and travelers checks;
(f) accounts, loans and notes receivable (whether current or
not current), performance and surety bonds and interests as beneficiary
under letters of credit and other similar instruments and all proceeds
thereof;
(g) Securities;
(h) swaps, collars, caps and other hedging arrangements of any
kind;
(i) financial, accounting, corporate, operating, design,
manufacturing, test and other data and records (in each case, in whatever
form or medium, including electronic media), including books, records,
notes, sales and sales promotional material and data, advertising
materials, credit information, cost and pricing information, customer and
supplier lists, business plans, reference catalogs, payroll and personnel
records and procedures, blue-prints, research and development files, data
and laboratory books, sales order files, litigation files, minute books,
stock ledgers, stock transfer records and other similar data and records;
(j) Intellectual Property;
(k) Contracts;
(l) credits, prepaid expenses, deposits and retentions held by
third parties;
(m) claims, causes of action, choses in action, rights under
express or implied warranties, guarantees and indemnities and similar
rights, rights of recovery, rights of set-off, rights of subrogation and
all other rights of any kind;
(n) Licenses; and
(o) goodwill and going concern value.
"ASSIGNING PARTY" shall have the meaning ascribed thereto in
Section 3.11.
3
8
"AUTOMATION PRODUCTS" means (a) industrial automation products,
systems and software, including controllers, electrical and electronic controls,
I/O (input/output) systems, drives (including electronic drives for electric
motors), sensors, power devices, packaged control products, operator interface
devices, computer software and hardware products, gears, gear reducers,
bearings, shaft supports, shaft hangers, shaft couplings, collars, clutches,
sheaves, sprockets, pulleys, elevating and conveying machinery, power
transmission machinery and components thereof, network monitoring products and
motors and (b) training, installation, repair, maintenance, consulting, computer
programming, designing, engineering, technical support and other services for
use in the field of industrial automation.
"BNA" means Boeing North American, Inc., a Delaware corporation
formerly named Rockwell International Corporation, and any successor thereto.
"BOEING" means The Boeing Company, a Delaware corporation.
"BOEING POST-CLOSING COVENANTS AGREEMENT" means the Post-Closing
Covenants Agreement dated as of December 6, 1996 among Rockwell, Boeing, Boeing
NA, Inc. and BNA, including all amendments thereto.
"BOEING TRANSITION AGREEMENT" means the Transition Agreement dated
as of December 6, 1996 by and among Rockwell, Boeing and BNA, including all
amendments thereto.
"BY-LAWS" means Rockwell Xxxxxxx' amended by-laws substantially in
the form attached hereto as Schedule 1.01(a).
"CASH" means all cash, cash on hand, cash equivalents, funds,
certificates of deposit and similar instruments held by Rockwell or any of its
Subsidiaries and Affiliates (including members of the Rockwell Xxxxxxx Group and
members of the Rockwell Science Center Group) immediately prior to the Time of
Distribution (it being understood that cash equivalents do not include
intercompany cash management balances which will be eliminated as of the Time of
Distribution pursuant to Section 3.04(a)).
"CERTIFICATE OF INCORPORATION" means Rockwell Xxxxxxx' restated
certificate of incorporation substantially in the form attached hereto as
Schedule 1.01(b).
"CLAIMS ADMINISTRATION" means the processing of claims made under
Policies, including the reporting of claims to the insurer, management and
defense of claims, and providing for appropriate releases upon settlement of
claims.
"CLAIMS MADE POLICIES" shall have the meaning ascribed thereto in
Section 3.09(b)(ii).
"CODE" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
4
9
"CONEXANT" means Conexant Systems, Inc., a Delaware corporation,
and any successor thereto.
"CONEXANT DISTRIBUTION AGREEMENT" means the Distribution Agreement
dated as of December 31, 1998 by and between Rockwell and Conexant, including
all amendments thereto.
"CONEXANT TRANSITION AGREEMENT" means the Transition Agreement
dated as of December 31, 1998 by and between Rockwell and Conexant, including
all amendments thereto.
"CONSENTS" means consents, approvals, waivers, clearances,
exemptions, allowances, novations, authorizations, filings, registrations and
notifications.
"CONTINUING SERVICES AGREEMENTS" means (a) the continuing services
agreement between Rockwell Xxxxxxx and Rockwell entered into on or prior to the
Distribution Date pursuant to which, among other things, Rockwell Xxxxxxx will
provide Rockwell with payroll and employee benefits administration services and
(b) the continuing services agreement between Rockwell Xxxxxxx and Rockwell
Science Center entered into on or prior to the Distribution Date pursuant to
which, among other things, Rockwell Xxxxxxx will provide Rockwell Science Center
with payroll and employee benefits administration services.
"CONTRACTS" means all agreements, real estate and other leases,
contracts, memoranda of understanding, letters of intent, sales orders, purchase
orders, open bids and other commitments, including in each case, all amendments,
modifications and supplements thereto and waivers and consents thereunder.
"CONVEYANCE AND ASSUMPTION INSTRUMENTS" means, collectively, the
various agreements, deeds, bills of sale, stock powers, certificates of title,
instruments of conveyance and assignment, instruments of assumption and other
instruments and documents to be entered into to effect the transfer of Assets
and Subsidiaries and the assumption of Liabilities contemplated by the
transactions described in Sections 3.01(b) and 3.01(c).
"COSTA MESA OFFICE LEASE" means the lease agreement dated December
20, 1996 between Rockwell and 000 Xxxxx Xxxxxxxxx Associates under which office
space located at 000 Xxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxxxxxxx is leased to
Rockwell.
"CURRENT AVIATION PRODUCTS LIABILITY POLICY" means the aviation
products liability insurance policy with [ ], as insurer, covering Rockwell and
its Subsidiaries (including members of the Rockwell Xxxxxxx Group and members of
the Rockwell Science Center Group), the coverage under which commenced on [ ]
and terminates on [ ].
"CYPRESS ASSETS" means (i) Rockwell's Corporate Shared Services
Center located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, the lease
agreement dated July 17, 1991 between Rockwell and IRP Xxxxxx Associates related
thereto and all leasehold improvements, equipment and other tangible assets
(including Rockwell's global employment management systems (GEMS) software,
pension recordkeeping integrated solutions management (PRISM) software
5
10
and subsystems related to such software) located thereat and (ii) the computer
servers located in Milwaukee, Wisconsin set forth on Schedule 1.01(c).
"DISPUTE" shall have the meaning ascribed thereto in Section 6.06.
"DISTRIBUTION" means the distribution, on the basis provided for
in Section 2.01, to holders of Rockwell Common Stock of the shares of Rockwell
Xxxxxxx Common Stock owned by Rockwell on the Distribution Date.
"DISTRIBUTION AGENT" means the distribution agent selected by
Rockwell to distribute Rockwell Xxxxxxx Common Stock in connection with the
Distribution.
"DISTRIBUTION DATE" means the date determined by the Rockwell
Board as the date as of which the Distribution will be effected.
"DIVESTED BUSINESS EMPLOYEE" shall have the meaning ascribed
thereto in the Employee Matters Agreement.
"EMPLOYEE MATTERS AGREEMENT" means the Employee Matters Agreement
by and among Rockwell, Rockwell Xxxxxxx and Rockwell Science Center,
substantially in the form attached hereto as Annex A.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FORM 10" means the registration statement on Form 10 filed by
Rockwell Xxxxxxx with the Commission to effect the registration of the Rockwell
Xxxxxxx Common Stock pursuant to the Exchange Act, including all amendments
thereto filed by Rockwell Xxxxxxx with the Commission prior to the Time of
Distribution.
"FORMER BUSINESS" means any corporation, partnership, entity,
division, business unit, business, assets, plants, product line, operations or
contract (including any assets and liabilities comprising the same) that has
been sold, conveyed, assigned, transferred or otherwise disposed of or divested
(in whole or in part) by any member of the Pre-Distribution Group or the
operations, activities or production of which has been discontinued, abandoned,
completed or otherwise terminated (in whole or in part) by any member of the
Pre-Distribution Group.
"FORMER ROCKWELL CORPORATE EMPLOYEE" shall have the meaning
ascribed thereto in the Employee Matters Agreement.
"GOVERNMENTAL ENTITY" means any government or any court, arbitral
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, federal, state, local, domestic, foreign or
international.
"GROUP" means the Rockwell Automation Group, the Rockwell Xxxxxxx
Group or the Rockwell Science Center Group, as applicable.
6
11
"INDEMNIFIABLE LOSSES" means, subject to Article IV, any and all
losses, Liabilities, claims, damages, deficiencies, obligations, fines,
payments, Taxes, Liens, costs and expenses, matured or unmatured, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated, known or unknown,
whenever arising and whether or not resulting from Third Party Claims (including
the costs and expenses of any and all Actions; all amounts paid in connection
with any demands, assessments, judgments, settlements and compromises relating
thereto; interest and penalties with respect thereto; out-of-pocket expenses and
reasonable attorneys', accountants' and other experts' fees and expenses
reasonably incurred in investigating, preparing for or defending against any
such Actions or in asserting, preserving or enforcing an Indemnitee's rights
hereunder; and any losses that may result from the granting of injunctive relief
as a result of any such Actions).
"INDEMNIFYING PARTY" shall have the meaning ascribed thereto in
Section 4.05(a).
"INDEMNITEE" means any of the Rockwell Automation Indemnitees, the
Rockwell Xxxxxxx Indemnitees or the Rockwell Science Center Indemnitees who or
which is entitled to seek indemnification under this Agreement.
"INDEMNITY REDUCTION AMOUNTS" shall have the meaning ascribed
thereto in Section 4.05(a).
"INFORMATION" means all records, books, contracts, instruments,
computer data and other data and information (in each case, in whatever form or
medium, including electronic media).
"INFORMATION STATEMENT" means the information statement with
respect to Rockwell Xxxxxxx sent to the holders of Rockwell Common Stock in
connection with the Distribution.
"INSURANCE PROCEEDS" means monies (a) received by an insured from
an insurer, (b) paid by an insurer on behalf of an insured or (c) received from
any third party in the nature of insurance, contribution or indemnification in
respect of any Liability.
"INTELLECTUAL PROPERTY" means (a) inventions (whether patentable
or unpatentable and whether or not reduced to practice), all improvements
thereto, and all patents (including utility and design patents, industrial
designs and utility models), patent applications, patent and invention
disclosures and all other rights of inventorship, worldwide, together with all
reissuances, continuations, continuations-in-part, divisions, revisions,
supplementary protection certificates, extensions and re-examinations thereof;
(b) trademarks, service marks, trade names, trade dress, logos, domain names,
business and product names and slogans and any and every other form of trade
identity and all registrations and applications for registration thereof,
worldwide; (c) copyrights in copyrightable works and all other rights of
authorship, worldwide, and all applications (including the right to file
applications), registrations and renewals in connection therewith; (d) mask
works and semiconductor chip rights, worldwide, and all applications (including
the right to file applications), registrations and renewals in connection
therewith; (e) trade secrets and confidential business and technical information
(including ideas,
7
12
research and development, know-how, formulas, technology, compositions,
manufacturing and production processes and techniques, technical data,
engineering, production and other designs, drawings, engineering notebooks,
industrial models, software and specifications and any other information meeting
the definition of a trade secret under the Uniform Trade Secrets Act); (f)
computer and electronic data processing programs and software, both source code
and object code (including data and related documentation, flow charts,
diagrams, descriptive texts and programs, computer print-outs, underlying tapes,
computer databases and similar items), computer applications and operating
programs; (g) rights to xxx for and remedies against past, present and future
infringements of any or all of the foregoing and rights of priority and
protection of interests therein under the laws of any jurisdiction worldwide;
(h) all copies and tangible embodiments of any or all of the foregoing (in
whatever form or medium, including electronic media); (i) all other proprietary
and intellectual property rights and interests; and (j) all other rights
relating to any or all of the foregoing.
"IRS" means the Internal Revenue Service.
"ITL" means Innovative Technology Licensing Corporation, a
[Delaware] corporation and a wholly owned subsidiary of Rockwell Science Center.
"LIABILITIES" means any and all claims, debts, liabilities,
commitments and obligations of whatever nature, whether fixed, contingent or
absolute, matured or unmatured, liquidated or unliquidated, accrued or not
accrued, known or unknown, due or to become due, whenever or however arising and
whether or not the same would be required by generally accepted accounting
principles to be reflected as a liability in financial statements or disclosed
in the notes thereto, including all costs and expenses relating thereto and
those claims, debts, liabilities, commitments and obligations:
(a) based upon, arising out of or relating to any law, rule,
regulation, order or consent decree of any Governmental Entity or any
noncompliance therewith or breach or violation of any thereof;
(b) in respect of accounts payable;
(c) in respect of outstanding checks;
(d) based upon, arising out of or relating to workers'
compensation, automobile liability, general liability, product liability,
intellectual property liability and other claims and matters (whether
direct or for indemnification of any Person or otherwise, and whether
insured or uninsured);
(e) based upon, arising out of or relating to Actions or any
award of any arbitrator of any kind;
(f) in respect of salary, bonuses, incentive payments,
severance payments and other compensation payments and all Taxes and
withholdings related thereto;
(g) in respect of employee welfare and fringe benefits;
(h) based upon, arising out of or relating to environmental
matters (including all removal, remediation and cleanup costs,
investigatory costs, governmental response
8
13
costs, natural resources damages, property damages, personal injury
damages and all other costs and damages);
(i) based upon, arising out of or relating to Contracts;
(j) based upon, arising out of or relating to any tort (whether
based on negligence, strict liability or otherwise) or infringement; and
(k) in respect of products and services, including warranty
liabilities, deferred revenues, product liability claims and liabilities
in respect of the return, repair or replacement of products.
"LICENSES" means licenses, permits, authorizations, consents,
certificates, registrations, variances, franchises and other approvals from any
Governmental Entity, including those relating to environmental matters.
"LIEN" means any lien, security interest, pledge, mortgage,
charge, restriction, claim, retention of title agreement or other encumbrance of
whatever nature.
"LOS ANGELES OFFICE LEASE" means the lease agreement dated April
15, 1994 between Rockwell and Center West under which office space located at
00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx is leased for the benefit of
Xxxxxx Xxxxxxxx.
"MERITOR" means ArvinMeritor, Inc., an Indiana corporation,
successor by merger to Meritor Automotive, Inc., a Delaware corporation, and any
successor thereto.
"MERITOR DISTRIBUTION AGREEMENT" means the Distribution Agreement
dated as of September 30, 1997 by and between Rockwell and Meritor, including
all amendments thereto.
"MERITOR TRANSITION AGREEMENT" means the Transition Agreement
dated as of September 30, 1997 by and between Rockwell and Meritor, including
all amendments thereto.
"METLIFE TRUST" means (a) the MetLife Demutualization Grantor
Trust established by Rockwell in 2000 in connection with the demutualization of
the Metropolitan Life Insurance Company and (b) all funds contained therein and
rights related thereto.
"MILWAUKEE OFFICE LEASE" means the lease agreement dated March 5,
1999 between Rockwell and Firstar Bank N.A. under which office space located at
000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx is leased to Rockwell.
"NYSE" means the New York Stock Exchange, Inc.
"OCCURRENCE BASIS POLICIES" shall have the meaning ascribed
thereto in Section 3.09(b)(i).
"ORDINARY COURSE INTERCOMPANY ARRANGEMENTS" shall have the meaning
ascribed thereto in Section 3.04(b)(ii).
9
14
"PERSON" means any individual, partnership, joint venture,
corporation, limited liability entity, trust, unincorporated organization or
other entity (including a Governmental Entity).
"PITTSBURGH OFFICE LEASE" means the lease agreement dated December
28, 1989 between Rockwell and Lincoln Liberty Avenue, Ltd. under which office
space located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx is leased to
Rockwell.
"POLICIES" means all insurance policies, insurance contracts and
claim administration contracts relating to self insured claims of any kind of
the Pre-Distribution Group which were or are in effect at any time at or prior
to the Time of Distribution (other than insurance policies, insurance contracts
and claim administration contracts established in contemplation of the
Distribution to cover only members of the Rockwell Xxxxxxx Group or members of
the Rockwell Science Center Group from and after the Time of Distribution),
including primary, excess and umbrella, commercial general liability, fiduciary
liability, product liability, automobile, aircraft, property and casualty,
business interruption, directors and officers liability, employment practices
liability, workers' compensation, crime, errors and omissions, special accident,
cargo and employee dishonesty insurance policies, bonds and captive insurance
company arrangements, together with all rights, benefits and privileges
thereunder.
"PRE-DISTRIBUTION GROUP" means (a) each of Rockwell, the
Subsidiaries of Rockwell existing immediately prior to the Time of Distribution
(including members of the Rockwell Xxxxxxx Group and members of the Rockwell
Science Center Group) and the former Subsidiaries of Rockwell, (b) each of the
predecessors of each of the foregoing (including BNA) and (c) each of the
present and former Subsidiaries and other Affiliates of each of the foregoing,
and their predecessors. Notwithstanding the foregoing, BNA and Persons who are
Affiliates of BNA after December 6, 1996 will not constitute members of the
Pre-Distribution Group after December 6, 1996.
"PRESCRIPTION CENTER ASSETS" means Rockwell's prescription center
located at 000 Xxxxxx Xxxxx Xxxx, X.X., Xxxxx Xxxxxx, Xxxx, the lease agreement
dated April 1997 between Rockwell Xxxxxxx and Xxxxxxxx X. Xxxxx and Xxxxxxx X.
Xxxxx related thereto and all leasehold improvements, equipment and other
tangible assets located thereat.
"PRIVILEGED INFORMATION" means, with respect to any Group,
Information regarding a member of such Group, or any of its operations,
employees, Assets or Liabilities (whether in documents or stored in any other
form or known to its employees or agents) that is or may be protected from
disclosure pursuant to the attorney-client privilege, the work product doctrine
or other applicable privileges, that a member of any other Group may come into
possession of or obtain access to pursuant to this Agreement or otherwise.
"PRODUCT MANUFACTURING AGREEMENT" means the agreement between
Rockwell and Rockwell Xxxxxxx entered into on or prior to the Distribution Date
pursuant to which, among other things, Rockwell Xxxxxxx will provide the
Electronic Commerce business of Rockwell with product manufacturing services.
10
15
"RECIPIENT PARTY" shall have the meaning ascribed thereto in
Section 3.11.
"RECORD DATE" means the close of business on the date determined
by the Rockwell Board as the record date for the Distribution.
"RECORDED AMOUNT" means, with respect to cash in U.S. and non-U.S.
bank accounts, the amount on deposit in such bank accounts, as reflected on bank
account statements in respect of such bank accounts, as of the Time of
Distribution. The parties acknowledge that the Recorded Amount with respect to
any bank account will not have deducted therefrom the amount of outstanding
checks issued on such account.
"REPRESENTATIVE" means, with respect to any Person, any of such
Person's directors, officers, employees, agents, consultants, advisors,
accountants, attorneys and representatives.
"RIGHTS" means the Rights to be issued pursuant to the Rights
Plan.
"RIGHTS PLAN" means the rights agreement entered into on or prior
to the Distribution Date between Rockwell Xxxxxxx and Xxxxxx Investor Services
LLC, as rights agent, substantially in the form filed as an exhibit to the Form
10.
"ROCKWELL" shall have the meaning ascribed thereto in the
preamble.
"ROCKWELL AUTOMATION ASSETS" means the following:
(a) all rights of any member of the Rockwell Automation Group
under any Transaction Agreement to which it is or becomes a party;
(b) all Assets which are expressly allocated to any member of
the Rockwell Automation Group pursuant to any Transaction Agreement;
(c) all Assets (other than those described in paragraphs (b)
and (d) of the definition of "Rockwell Xxxxxxx Assets" and paragraphs (b)
and (d) of the definition of "Rockwell Science Center Assets") which
immediately prior to the Time of Distribution are owned by Rockwell or
any of its Subsidiaries (including members of the Rockwell Xxxxxxx Group
and members of the Rockwell Science Center Group) and which are used
primarily in or relate primarily to the Rockwell Automation Business, as
the same shall exist as of such time;
(d) the following specifically enumerated Assets which
immediately prior to the Time of Distribution are owned by Rockwell or
any of its Subsidiaries (including members of the Rockwell Xxxxxxx Group
and members of the Rockwell Science Center Group), in each case whether
or not such Assets are used primarily in or relate primarily to the
Rockwell Automation Business, the Rockwell Xxxxxxx Business or the
Rockwell Science Center Business:
11
16
(i) all (A) Rockwell Automation Retained Accounts, and (B)
Cash, including all cash contained in the Rockwell Automation Retained
Accounts, the Rockwell Xxxxxxx U.S. Bank Accounts, the Rockwell Xxxxxxx
Non-U.S. Bank Accounts, the Rockwell Science Center U.S. Bank Accounts
and the Rockwell Science Center Non-U.S. Bank Accounts, but not including
cash described in paragraph (d)(viii) of the definition of "Rockwell
Xxxxxxx Assets" and paragraph (d)(ii) of the definition of "Rockwell
Science Center Assets";
(ii) all Securities, other than Rockwell Xxxxxxx Securities and
Rockwell Science Center Securities;
(iii) all Policies (including Shared Policies, but excluding the
Current Aviation Products Liability Policy) and all rights, benefits and
privileges thereunder and related thereto (including the right to receive
any and all return premiums with respect thereto), other than the right
to assert claims under Shared Policies to the extent described in Section
3.09(b);
(iv) other than as provided for in Section 3.10, all rights in,
and to the use of, the names, trademarks, trade names, domain names and
service marks "Rockwell", "Rockwell International", "Rockwell
Automation", "Rockwell Xxxxxxx", "Xxxxxxxx Science Center" and "Rockwell
Scientific Company" and all corporate symbols and logos related thereto
and all names, trademarks, trade names, domain names and service marks
which include the words "Rockwell" or "Rockwell International";
(v) the Rockwell VEBA;
(vi) the Rockwell Good Government Committee;
(vii) the patents, patent applications, invention disclosures and
registered trademarks set forth on Schedule 1.01(d);
(viii) 50% of Rockwell's ownership interest in Rockwell Science
Center;
(ix) all interests in charitable trusts (including the Rockwell
Charitable Trust and the Rockwell Canadian Charitable Trust) and assets
thereof, subject to the provisions of Section 3.14;
(x) 32% of all assets of the MetLife Trust;
(xi) the Rockwell Property Trust;
(xii) the Rockwell Insurance Escrow Account;
(xiii) the shared facilities set forth on Schedule 1.01(e);
(xiv) the aircraft set forth on Schedule 1.01(f);
12
17
(xv) the Milwaukee Office Lease and all leasehold improvements,
equipment and other assets located at or related to the office facility
leased thereunder;
(xvi) the Costa Mesa Office Lease and all leasehold improvements,
equipment and other assets located at or related to the office facility
leased thereunder;
(xvii) the Pittsburgh Office Lease and all leasehold improvements,
equipment and other assets located at or related to the office facility
leased thereunder;
(xviii) all Assets based upon, arising out of or relating to the
RAN Contract;
(xix) all Assets based upon, arising out of or relating to the
operations of (i) the Rocky Flats plant, Golden, Colorado and (ii) the
Hanford Nuclear Reservation, Hanford, Washington;
(xx) all rights to receive payments for services rendered prior
to the Time of Distribution under the Boeing Transition Agreement (other
than pursuant to Section 2 of the Boeing Transition Agreement), the
Meritor Transition Agreement and the Conexant Transition Agreement (other
than pursuant to Section 2 or 9 of the Conexant Transition Agreement);
(xxi) all rights in U.S. Patent #4,368,098 entitled "Epitaxial
Composite and Method of Making", all license agreements and royalties
with respect to the licensing thereof and all rights to xxx and recover
for and remedies against past, present and future infringements thereof
(including all rights in respect of the Action Rockwell International
Corporation v. United States and SDL, Inc., Civ. Xx. 00-000 X, X.X. Xxxxx
xx Xxxxxxx Xxxxxx);
(xxii) all Rockwell Science Center Shared Agreements that relate
to the Rockwell Automation Business and rights, benefits and privileges
thereunder and all Rockwell Xxxxxxx Shared Agreements and rights,
benefits and privileges thereunder, except that, with respect to Shared
Agreements relating to Unrelated Former Businesses, Rockwell Xxxxxxx will
have the rights described in paragraph (c)(i) of the definition of
"Rockwell Xxxxxxx Assets" and Rockwell Science Center will have the
rights described in paragraph (c)(i) of the definition of "Rockwell
Science Center Assets"; and
(xxiii) all rights in respect of Unrelated Former Businesses,
other than (A) rights expressly allocated to Rockwell Xxxxxxx pursuant to
the Transaction Agreements in respect of Unrelated Former Businesses and
current and former employees thereof, which shall constitute Rockwell
Xxxxxxx Assets, (B) rights described in paragraphs (c)(i) and (d) of the
definition of "Rockwell Xxxxxxx
13
18
Assets", which shall constitute Rockwell Xxxxxxx Assets and (C) rights
described in paragraphs (c)(i) and (d) of the definition of "Rockwell
Science Center Assets", which shall constitute Rockwell Science Center
Assets;
(e) all other Assets which immediately prior to the Time of
Distribution are owned by Rockwell or any of its Subsidiaries (including
members of the Rockwell Xxxxxxx Group and members of the Rockwell Science
Center Group) that are not Rockwell Xxxxxxx Assets or Rockwell Science
Center Assets; and
(f) all rights, choses in action, causes of action and claims
of Rockwell or any of its Subsidiaries (including members of the Rockwell
Xxxxxxx Group and members of the Rockwell Science Center Group) to the
extent relating to any asset described in clauses (a) through (e) above.
Anything contained herein to the contrary notwithstanding, assets
described in paragraphs (b) and (d) of the definition of "Rockwell Xxxxxxx
Assets" and paragraphs (b) and (d) of the definition of "Rockwell Science Center
Assets" will not be included in Rockwell Automation Assets.
"ROCKWELL AUTOMATION BUSINESS" means:
(a) the Automation business engaged in prior to the Time of
Distribution by the Pre-Distribution Group of researching, developing,
designing, engineering, manufacturing, building, selling, distributing,
installing, modifying, repairing, servicing and supporting Automation
Products (marketed under such names as Rockwell Automation,
Xxxxx-Xxxxxxx, Xxxxxxxx Software, Dodge, and Reliance Electric);
(b) the Electronic Commerce business engaged in at all times
prior to the Time of Distribution by the Pre-Distribution Group of
researching, developing, designing, engineering, manufacturing, building,
selling, distributing, installing, modifying, repairing, servicing and
supporting electronic commerce products for call center systems and
personalized electronic commerce applications, including automatic call
distributors, computer telephony integration software, information
collection, reporting, queuing and management systems, and call center
systems and consulting services;
(c) Former Businesses related primarily to any of the
foregoing, including Former Businesses listed on Schedule 1.01(g); and
(d) activities of the Pre-Distribution Group related to the
foregoing; provided, however, that, notwithstanding anything contained
herein to the contrary, the Rockwell Automation Business shall not
include (i) the Rockwell Science Center Business or (ii) the Unrelated
Former Businesses set forth on Schedule 1.01(h).
14
19
"ROCKWELL AUTOMATION EXPENSES" means:
(a) the following out-of-pocket costs and expenses of Rockwell
or any of its Subsidiaries (including members of the Rockwell Xxxxxxx
Group and members of the Rockwell Science Center Group), whether incurred
and/or paid before, at or after the Time of Distribution:
(i) all investment banking, legal and auditing fees and
expenses incurred in connection with effecting the Distribution
(other than (A) any such fees and expenses described in paragraphs
(a), (b) and (c) of the definition of "Rockwell Xxxxxxx Expenses"
or paragraph (a) of the definition of "Rockwell Science Center
Expenses" and (B) any such fees and expenses incurred in
connection with any dispute or modification after the Distribution
Date with respect to the Transaction Agreements or the
transactions contemplated thereby or any claim under Article IV);
(ii) all fees and expenses of the Distribution Agent
incurred in connection with effecting the Distribution;
(iii) the initial listing fee payable to the NYSE for the
initial listing of the Rockwell Xxxxxxx Common Stock on the NYSE;
and
(iv) all out-of-pocket costs and expenses relating to the
Distribution to the extent the same relate to operations of the
Rockwell Automation Business after the Time Distribution; and
(b) all other out-of-pocket costs and expenses of Rockwell or
any of its Subsidiaries (including members of the Rockwell Xxxxxxx Group
and members of the Rockwell Science Center Group) incurred through the
Time of Distribution in connection with effecting the Distribution, the
preparation, execution and delivery of the Transaction Agreements and the
consummation of the Distribution which are not Rockwell Xxxxxxx Expenses
or Rockwell Science Center Expenses.
"ROCKWELL AUTOMATION GROUP" means Rockwell and the Rockwell
Subsidiaries.
"ROCKWELL AUTOMATION INDEMNITEES" means each member of the
Rockwell Automation Group, each of their respective Representatives and each of
the heirs, executors, successors and permitted assigns of any of the foregoing.
"ROCKWELL AUTOMATION LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell Automation
Group under any Transaction Agreement to which it is or becomes a party;
(b) all Liabilities for which any member of the Rockwell
Automation Group is expressly made responsible pursuant to any
Transaction Agreement;
15
20
(c) all Liabilities (other than those described in paragraphs
(b) and (d) of the definition of "Rockwell Xxxxxxx Liabilities" and
paragraphs (b) and (d) of the definition of "Rockwell Science Center
Liabilities") of Rockwell or any of its Subsidiaries (including members
of the Rockwell Xxxxxxx Group and members of the Rockwell Science Center
Group) to the extent based upon, arising out of or relating to the
Rockwell Automation Assets or the Rockwell Automation Business,
including:
(i) all Liabilities to the extent relating to the
Rockwell Automation Business based upon, arising out of or
relating to Contracts (whether or not such Contracts constitute
Rockwell Automation Assets) (including any primary, secondary,
contingent or other obligations, such as under guaranties or
indemnities, in respect of such Contracts), including Liabilities
arising out of any breaches or violations and Liabilities to make
payments or otherwise in connection with the termination thereof
as a result of the transactions contemplated hereby or otherwise
and including liabilities in respect of Shared Agreements;
provided, however, that Rockwell Automation Liabilities shall not include
(i) Rockwell Xxxxxxx Liabilities described in paragraph (c)(i) of the
definition of "Rockwell Xxxxxxx Liabilities" in respect of Contracts that
constitute Rockwell Automation Assets or (ii) Rockwell Science Center
Liabilities described in paragraph (c)(i) of the definition of "Rockwell
Science Center Liabilities" in respect of Contracts that constitute
Rockwell Automation Assets;
(d) the following specifically enumerated Liabilities of
Rockwell or any of its Subsidiaries (including members of the Rockwell
Xxxxxxx Group and members of the Rockwell Science Center Group), in each
case whether or not such Liabilities relate to the Rockwell Automation
Business, the Rockwell Automation Assets, the Rockwell Xxxxxxx Business,
the Rockwell Xxxxxxx Assets, the Rockwell Science Center Business or the
Rockwell Science Center Assets:
(i) all Liabilities in respect of the RAN
Contract;
(ii) all Liabilities in respect of
asbestos-related claims of Former Rockwell Corporate
Employees and Divested Business Employees in connection
with their employment by any member of the Pre-Distribution
Group;
(iii) all Liabilities in respect of the operations
of (A) the Rocky Flats plant, Golden, Colorado (including
in respect of the pending Action brought against Rockwell
by Xxxxx Xxxxx relating to alleged violations of the False
Claims Act), (B) the Hanford Nuclear Reservation, Hanford,
Washington and (C) the Santa Xxxxxx Field Laboratory
operated by Rockwell's former Rocketdyne Division (other
than, in each case, Liabilities described in paragraph
(d)(ii) of the definition of "Rockwell Xxxxxxx Liabilities"
and Liabilities allocated to Rockwell Xxxxxxx under the
Employee Matters Agreement, which shall constitute Rockwell
Xxxxxxx Liabilities);
(iv) all Liabilities in respect of the Milwaukee
Office Lease (other than Liabilities in respect of Former
Rockwell Corporate Employees as described in paragraph
(d)(ii) of the definition of "Rockwell Xxxxxxx Liabilities"
and Liabilities
16
21
allocated to Rockwell Xxxxxxx under the Employee Matters
Agreement, which shall constitute Rockwell Xxxxxxx
Liabilities);
(v) all Liabilities in respect of the Costa Mesa
Office Lease (other than Liabilities in respect of Former
Rockwell Corporate Employees as described in paragraph
(d)(ii) of the definition of "Rockwell Xxxxxxx Liabilities"
and Liabilities allocated to Rockwell Xxxxxxx under the
Employee Matters Agreement, which shall constitute Rockwell
Xxxxxxx Liabilities);
(vi) all Liabilities in respect of the Pittsburgh
Office Lease (other than Liabilities in respect of Former
Rockwell Corporate Employees as described in paragraph
(d)(ii) of the definition of "Rockwell Xxxxxxx Liabilities"
and Liabilities allocated to Rockwell Xxxxxxx under the
Employee Matters Agreement, which shall constitute Rockwell
Xxxxxxx Liabilities);
(vii) all Liabilities based upon, arising out of or
relating to the wind tunnel donated by Rockwell to the
University of California, Los Angeles, in 1998;
(viii) all Liabilities based upon, arising out of or
relating to the Rockwell Debt, including all indebtedness
outstanding thereunder and interest and fees payable with
respect thereto; and
(ix) all Liabilities based upon, arising out of or
relating to Unrelated Former Businesses, other than (A)
Liabilities expressly allocated to Rockwell Xxxxxxx
pursuant to the Transaction Agreements in respect of
Unrelated Former Businesses and current and former
employees thereof, which shall constitute Rockwell Xxxxxxx
Liabilities, (B) Liabilities described in paragraphs
(c)(ii) and (d) of the definition of "Rockwell Xxxxxxx
Liabilities", which shall constitute Rockwell Xxxxxxx
Liabilities, and (C) Liabilities described in paragraphs
(c)(ii) and (d) of the definition of "Rockwell Science
Center Liabilities", which shall constitute Rockwell
Science Center Liabilities; and
(e) all other Liabilities of Rockwell or any of its
Subsidiaries (including members of the Rockwell Xxxxxxx Group and
members of the Rockwell Science Center Group) in respect of
operations engaged in prior to the Time of Distribution that are
not Rockwell Xxxxxxx Liabilities or Rockwell Science Center
Liabilities.
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
Xxxxxxx Liabilities" and paragraphs (b) and (d) of the definition of "Rockwell
Science Center Liabilities" will not be included in Rockwell Automation
Liabilities.
"ROCKWELL AUTOMATION LICENSE AGREEMENT" shall have the
meaning ascribed thereto in Section 3.13.
"ROCKWELL AUTOMATION RETAINED ACCOUNTS" means all bank
accounts of Rockwell or any of its Subsidiaries (including members of the
Rockwell Xxxxxxx Group and
17
22
members of the Rockwell Science Center Group) immediately prior to the Time of
Distribution, other than Rockwell Xxxxxxx U.S. Bank Accounts, Rockwell Xxxxxxx
Non-U.S. Bank Accounts, Rockwell Science Center U.S. Bank Accounts and Rockwell
Science Center Non-U.S. Bank Accounts.
"ROCKWELL BOARD" means the Board of Directors of Rockwell
or a duly authorized committee thereof.
"ROCKWELL CANADIAN CHARITABLE TRUST" means the Rockwell
International Canadian Trust.
"ROCKWELL CHARITABLE TRUST" means the Rockwell
International Corporation Trust.
"ROCKWELL CLIR FUND" means (a) the Rockwell
Continued Life Insurance Reserve Fund and (b) all funds contained therein and
rights related thereto.
"ROCKWELL XXXXXXX" shall have the meaning ascribed thereto
in the preamble.
"ROCKWELL XXXXXXX ASSETS" means the following:
(a) all rights of any member of the Rockwell Xxxxxxx
Group under any Transaction Agreement to which it is or becomes a party;
(b) all Assets which are expressly allocated to any
member of the Rockwell Xxxxxxx Group pursuant to any Transaction
Agreement;
(c) all Assets (other than those described in paragraphs
(b) and (d) of the definition of "Rockwell Automation Assets" and
paragraphs (b) and (d) of the definition of "Rockwell Science Center
Assets") which immediately prior to the Time of Distribution are owned by
Rockwell or any of its Subsidiaries (including members of the Rockwell
Xxxxxxx Group and members of the Rockwell Science Center Group) and which
are used primarily in or relate primarily to the Rockwell Xxxxxxx
Business, as the same shall exist as of such time, including:
(i) all rights in respect of Unrelated Former
Businesses relating primarily to the operations of the
Rockwell Xxxxxxx Business which do not constitute a
Rockwell Automation Asset (or a right related thereto)
described in any of paragraphs (b) or (d)(i) - (xxi) of the
definition of "Rockwell Automation Assets" or a Rockwell
Science Center Asset (or a right related thereto) described
in paragraphs (b) or (d) of the definition of "Rockwell
Science Center Assets", including:
(A) rights to receive payments for
services provided under Section 9 of the Conexant
Transition Agreement;
18
23
(B) all rights to the extent relating
primarily to the operations of the Rockwell Xxxxxxx
Business to receive indemnification from (x) BNA
pursuant to the Boeing Post-Closing Covenants
Agreement, (y) Meritor pursuant to the Meritor
Distribution Agreement or (z) Conexant pursuant to
the Conexant Distribution Agreement; and
(C) all rights to the extent relating
primarily to the operations of the Rockwell Xxxxxxx
Business under Section 20 of the Boeing Transition
Agreement;
(d) the following specifically enumerated Assets which
immediately prior to the Time of Distribution are owned by Rockwell or
any of its Subsidiaries (including members of the Rockwell Xxxxxxx Group
and members of the Rockwell Science Center Group), in each case whether
or not such Assets are used primarily in or relate primarily to the
Rockwell Automation Business, the Rockwell Xxxxxxx Business or the
Rockwell Science Center Business:
(i) 50% of Rockwell's ownership interest in
Rockwell Science Center;
(ii) the Cypress Assets;
(iii) the Prescription Center Assets;
(iv) the Los Angeles Office Lease and all
leasehold improvements, equipment and other tangible assets
located at the office facility leased thereunder;
(v) the Washington Office Assets;
(vi) the Rockwell CLIR Fund;
(vii) the Rockwell Xxxxxxx U.S. Bank Accounts and
the Rockwell Xxxxxxx Non-U.S. Bank Accounts;
(viii) (x) cash contained in Rockwell Xxxxxxx U.S.
Bank Accounts and Rockwell Xxxxxxx Non-U.S. Bank Accounts
of up to an aggregate Recorded Amount of $20 million; (y)
all balances contained in xxxxx cash accounts at non-U.S.
locations of the Rockwell Xxxxxxx Business; and (z) the
dollar value of travelers checks at non-U.S. locations of
the Rockwell Xxxxxxx Business;
(ix) 65% of all assets of the MetLife Trust;
(x) the aircraft set forth on Schedule 1.01(i);
(xi) the Rockwell Xxxxxxx VEBA;
(xii) the Rockwell Xxxxxxx Good Government
Committee;
19
24
(xiii) the patents, patent applications, invention
disclosures and registered trademarks set forth on Schedule
1.01(j);
(xiv) the Rockwell Xxxxxxx Securities;
(xv) the shared facilities set forth on Schedule
1.01(k); and
(xvi) the Current Aviation Products Liability
Policy and all rights, benefits and privileges thereunder
and related thereto, other than the right to assert claims
thereunder to the extent described in Section 3.09(d);
(e) all rights, choses in action, causes of action and
claims of Rockwell or any of its Subsidiaries (including members
of the Rockwell Xxxxxxx Group and members of the Rockwell Science
Center Group) to the extent relating to any asset described in
clauses (a) through (d) above.
Anything contained herein to the contrary notwithstanding,
assets described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Assets" and paragraphs (b) and (d) of the definition of "Rockwell
Science Center Assets" will not be included in Rockwell Xxxxxxx Assets.
"ROCKWELL XXXXXXX BOARD" means the Board of Directors of
Rockwell Xxxxxxx.
"ROCKWELL XXXXXXX BUSINESS" means:
(a) the Rockwell Xxxxxxx business engaged in prior to
the Time of Distribution by the Pre-Distribution Group of
researching, developing, designing, engineering, manufacturing,
building, selling, distributing, installing, modifying, repairing,
servicing and supporting aviation electronics and airborne and
mobile communications products and systems for commercial and
military applications (marketed primarily under the name Rockwell
Xxxxxxx), including (i) flight deck electronic products and
systems, including communications, navigation, display and
automatic flight control systems, as well as in-flight
entertainment and information management systems, and (ii) defense
electronics products and systems, including communications,
navigation and integrated systems, for airborne, ground and
shipboard applications;
(b) Former Businesses related primarily to any of the
foregoing, including the Former Businesses listed on Schedule
1.01(l); and
(c) activities of the Pre-Distribution Group related to
the foregoing; provided, however, that, notwithstanding anything
contained herein to the contrary, the Rockwell Xxxxxxx Business
shall not include (i) the Rockwell Science Center Business or (ii)
the Unrelated Former Businesses set forth on Schedule 1.01(h).
"ROCKWELL XXXXXXX CHANGE IN CONTROL" means any of the
following events or circumstances: (a) any person (as that term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner
(as that term is used in Section 13(d) of the Exchange
20
25
Act, and the rules and regulations promulgated thereunder) of shares of Rockwell
Xxxxxxx entitled to cast more than 50% of the votes at the time entitled to be
cast generally for the election of directors of Rockwell Xxxxxxx; (b) more than
50% of the members of the Rockwell Xxxxxxx Board shall not be Rockwell Xxxxxxx
Continuing Directors; or (c) Rockwell Xxxxxxx shall be merged or consolidated
with, or, in any transaction or series of transactions, substantially all of the
business or assets of Rockwell Xxxxxxx shall be sold to or otherwise acquired
by, another corporation or entity and, as a result thereof, the shareowners of
Rockwell Xxxxxxx immediately prior thereto shall not have at least 50% or more
of the combined voting power of the surviving, resulting or transferee
corporation or entity immediately thereafter.
"ROCKWELL XXXXXXX CHARITABLE CORPORATION" means the not-
for-profit charitable corporation to be established by Rockwell Xxxxxxx prior to
the Time of Distribution.
"ROCKWELL XXXXXXX COMMON STOCK" means, collectively, the
Common Stock, par value $.01 per share, of Rockwell Xxxxxxx and the related
Rights.
"ROCKWELL XXXXXXX CONTINUING DIRECTOR" means any member of
the Rockwell Xxxxxxx Board who either (i) is a member of the Rockwell Xxxxxxx
Board as of the Time of Distribution or (ii) is thereafter elected to the
Rockwell Xxxxxxx Board, or nominated for election by shareowners, by a vote of
at least a majority of the directors who are Rockwell Xxxxxxx Continuing
Directors at the time of such vote; provided, that an individual who is so
elected or nominated in connection with a merger, consolidation, acquisition or
similar transaction (but excluding the Distribution) shall not be a Rockwell
Xxxxxxx Continuing Director unless such individual was a Rockwell Xxxxxxx
Continuing Director prior thereto.
"ROCKWELL XXXXXXX CREDIT FACILITIES" means [list of
Rockwell Xxxxxxx credit facilities to be provided].
"ROCKWELL XXXXXXX EXPENSES" means the following
out-of-pocket costs and expenses of Rockwell or any of its Subsidiaries
(including members of the Rockwell Xxxxxxx Group and members of the Rockwell
Science Center Group), in each case, whether incurred and/or paid before, at or
after the Time of Distribution:
(a) all out-of-pocket costs and expenses (including
legal fees and expenses) of and related to the credit facilities
established prior to the Time of Distribution for the benefit of Rockwell
Xxxxxxx and other members of the Rockwell Xxxxxxx Group with The Chase
Manhattan Bank, as agent;
(b) all out-of-pocket costs and expenses (including
legal fees and expenses) of and related to the commercial paper program
established prior to the Time of Distribution for the benefit of Rockwell
Xxxxxxx and other members of the Rockwell Xxxxxxx Group;
(c) all legal fees and expenses of Xxxxxxxx Ingersoll,
P.C. incurred in connection with the Distribution or matters relating
thereto from and after May 1, 2001;
(d) all out-of-pocket costs and expenses of the transfer
agent and registrar for the Rockwell Xxxxxxx Common Stock;
21
26
(e) all out-of-pocket costs and expenses of executive
search firms in connection with recruiting officers and directors of the
Rockwell Xxxxxxx Group to be in place at or after the Time of
Distribution;
(f) all out-of-pocket costs and expenses of consultants
in connection with establishing executive compensation plans for Rockwell
Xxxxxxx;
(g) all expenses required to be paid by Rockwell Xxxxxxx
pursuant to Section 3.01(c)(ix) of the Employee Matters Agreements; and
(h) all other out-of-pocket costs and expenses relating
to the Distribution to the extent the same relate to operations of the
Rockwell Xxxxxxx Business after the Time of Distribution.
"ROCKWELL XXXXXXX FINANCIAL INSTRUMENTS" means all credit
facilities, guaranties, foreign currency forward exchange contracts, comfort
letters, letters of credit and similar instruments related solely to the
Rockwell Xxxxxxx Business under which any member of the Rockwell Automation
Group has any primary, secondary, contingent, joint, several or other Liability,
including those set forth on Schedule 1.01(m).
"ROCKWELL XXXXXXX GOOD GOVERNMENT COMMITTEE" means [ ], a
political action committee established for Rockwell Xxxxxxx in contemplation of
the Distribution.
"ROCKWELL XXXXXXX GROUP" means Rockwell Xxxxxxx and the
Rockwell Xxxxxxx Subsidiaries.
"ROCKWELL XXXXXXX INDEMNITEES" means each member of the
Rockwell Xxxxxxx Group, each of their respective Representatives and each of the
heirs, executors, successors and permitted assigns of any of the foregoing.
"ROCKWELL XXXXXXX LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell
Xxxxxxx Group under any Transaction Agreement to which it is or
becomes a party;
(b) all Liabilities for which any member of the Rockwell
Xxxxxxx Group is expressly made responsible pursuant to any
Transaction Agreement;
(c) all Liabilities (other than those described in
paragraphs (b) and (d) of the definition of "Rockwell Automation
Liabilities" and paragraphs (b) and (d) of the definition of
"Rockwell Science Center Liabilities") of Rockwell or any of its
Subsidiaries (including members of the Rockwell Xxxxxxx Group and
members of the Rockwell Science Center Group) to the extent based
upon, arising out of or relating to the Rockwell Xxxxxxx Assets or
the Rockwell Xxxxxxx Business, including:
(i) all Liabilities to the extent relating to the
Rockwell Xxxxxxx Business based upon, arising out of or
relating to Contracts (whether or not such Contracts
constitute Rockwell Xxxxxxx Assets) (including any primary,
secondary, contingent or other obligations, such as under
guaranties or indemnities, in respect of such Contracts),
including Liabilities arising out of any breaches or
violations and Liabilities to make payments or otherwise in
connection with the termination thereof as a result of the
transactions contemplated hereby or otherwise and including
Liabilities in respect of Shared Agreements; and
22
27
(ii) all Liabilities based upon, arising out of or
relating to Unrelated Former Businesses to the extent
relating to the operations of the Rockwell Xxxxxxx Business
which do not constitute a Rockwell Automation Liability
described in any of paragraphs (b) or (d)(i) - (viii) of
the definition of "Rockwell Automation Liabilities",
including (A) all performance and other Liabilities
relating to the services required to be provided under
Section 9 of the Conexant Transition Agreement; and (B) all
Liabilities to the extent relating to the operations of the
Rockwell Xxxxxxx Business to indemnify (x) BNA and certain
other Persons pursuant to the Boeing Post-Closing Covenants
Agreement, (y) Meritor and certain other Persons pursuant
to the Meritor Distribution Agreement or (z) Conexant and
certain other Persons pursuant to the Conexant Distribution
Agreement;
provided, however, that Rockwell Xxxxxxx Liabilities shall not
include (i) Rockwell Automation Liabilities described in paragraph
(c)(i) of the definition of "Rockwell Automation Liabilities" in
respect of Contracts that constitute Rockwell Xxxxxxx Assets or
(ii) Rockwell Science Center Liabilities described in paragraph
(c)(i) of the definition of "Rockwell Science Center Liabilities"
in respect of Contracts that constitute Rockwell Xxxxxxx Assets;
and
(d) the following specifically enumerated
Liabilities of Rockwell or any of its Subsidiaries (including
members of the Rockwell Xxxxxxx Group and members of the Rockwell
Science Center Group), in each case whether or not such
Liabilities relate to the Rockwell Automation Business, the
Rockwell Automation Assets, the Rockwell Xxxxxxx Business, the
Rockwell Xxxxxxx Assets, the Rockwell Science Center Business or
the Rockwell Science Center Assets:
(i) all Liabilities based upon, arising out
of or relating to the Actions set forth on Schedule
1.01(n);
(ii) except as provided in paragraph
(d)(ii) of the definition of "Rockwell Automation
Liabilities", all Liabilities based upon, arising out of or
relating to the employment of Former Rockwell Corporate
Employees and Divested Business Employees by any member of
the Pre-Distribution Group, including all Liabilities based
upon, arising out of or relating to (A) claims of Former
Rockwell Corporate Employees and Divested Business
Employees in respect of their employment (or termination of
employment) with any member of the Pre-Distribution Group;
(B) relocation, severance and other amounts payable to
Former Rockwell Corporate Employees and Divested Business
Employees after the Time of Distribution; (C) providing
office, secretarial, telecommunications and other support
services to Xxxxxx X. Xxxxx from and after the Time of
Distribution, including any monthly stipend paid to Xx.
Xxxxx for the payment of such services; and (D) providing
office, secretarial, telecommunications and other support
services to Xxxxxx Xxxxxxxx from and after the Time of
Distribution, including all Liabilities in respect of the
Los Angeles Office Lease (and any replacement thereof);
23
28
(iii) all Liabilities based upon, arising
out of or relating to workers' compensation claims of
Rockwell Xxxxxxx Participants (as defined in the Employee
Matters Agreement);
(iv) all Liabilities based upon, arising
out of or relating to the Rockwell CLIR Fund;
(v) all Liabilities based upon, arising out
of or relating to the Cypress Assets or the operations
thereof (it being understood that Liabilities in respect of
employees of the Rockwell Automation Business engaged in
payroll and benefits consolidation activities shall
constitute Rockwell Automation Liabilities);
(vi) all Liabilities based upon, arising out
of or relating to the Prescription Center Assets or the
operations thereof;
(vii) all Liabilities based upon, arising
out of or relating to the Washington Office Assets or the
operations thereof;
(viii) all Liabilities based upon, arising
out of or relating to claims in respect of the
demutualization of the Metropolitan Life Insurance Company;
(ix) all Liabilities based upon, arising
out of or relating to the Rockwell Xxxxxxx VEBA;
(x) all Liabilities based upon, arising out
of or relating to the Rockwell Xxxxxxx Good Government
Committee;
(xi) all Liabilities based upon, arising
out of or relating to the Rockwell Xxxxxxx Credit
Facilities, including all indebtedness outstanding
thereunder and interest and fees payable with respect
thereto;
(xii) all Liabilities in respect of
commitments of the Rockwell Xxxxxxx Charitable Corporation
to be assumed pursuant to Section 3.14; and
(xiii) all Liabilities based upon, arising
out of or relating to corporate office overhead claims
filed by Rockwell with the U.S. Department of Defense prior
to the Time of Distribution, including all Liabilities in
respect of any adjustments thereto (other than any such
Liabilities that would have been allocated to Rockwell
Science Center in accordance with government contract cost
allocation practices of Rockwell in effect immediately
prior to the Time of Distribution, which shall constitute
Rockwell Science Center Liabilities).
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Liabilities" and paragraphs (b) and (d) of the definition of
"Rockwell Science Center Liabilities" will not be included in Rockwell Xxxxxxx
Liabilities.
24
29
"ROCKWELL XXXXXXX MARKS" shall have the meaning ascribed
thereto in Section 3.10(b)(i).
"ROCKWELL XXXXXXX NON-U.S. BANK ACCOUNTS" means all bank
accounts set forth on Schedule 1.01(o).
"ROCKWELL XXXXXXX SECURITIES" means the Securities set
forth on Schedule 1.01(x).
"ROCKWELL XXXXXXX SHARED AGREEMENTS" means all Contracts
under which Rockwell or any Rockwell Subsidiary has any rights or primary,
secondary, contingent, joint, several or other Liability arising out of or
relating to both (i) the Rockwell Xxxxxxx Business and (ii) one or more other
businesses of Rockwell or any Rockwell Subsidiary (other than the Rockwell
Science Center Business), which by their terms will be outstanding or in effect
as of or at any time following the Time of Distribution; provided, however, that
Rockwell Xxxxxxx Shared Agreements shall not include any Contract assigned by
any member of the Rockwell Automation Group to any member of the Rockwell
Xxxxxxx Group prior to the Time of Distribution and under which no member of the
Rockwell Automation Group will make purchases after the Time of Distribution (it
being understood that any such Contracts will constitute Rockwell Xxxxxxx
Assets).
"ROCKWELL XXXXXXX SUBSIDIARY" means each Person listed on
Schedule 1.01(p).
"ROCKWELL XXXXXXX U.S. BANK ACCOUNTS" means all bank
accounts set forth on Schedule 1.01(q).
"ROCKWELL XXXXXXX VEBA" means (a) [name of trust] and (b)
all funds contained therein and rights related thereto.
"ROCKWELL COMMON STOCK" means the Common Stock, par value
$1.00 per share, of Rockwell.
"ROCKWELL DEBT" means all Liabilities of Rockwell or any of
its Subsidiaries (including members of the Rockwell Xxxxxxx Group and members of
the Rockwell Science Center Group) based upon, arising out of or relating to:
(a) the 6.8% Notes of Reliance Electric Company due
April 15, 2003;
(b) the 6.15% Notes of Rockwell due January 15, 2008;
(c) the 6.70% Debentures of Rockwell due January 15,
2028;
(d) the 5.20% Debentures of Rockwell due January 15,
2098;
(e) the Reliance Electric Company Athens-Xxxxxx County
Industrial Development Authority Revenue Bonds Series 1977;
25
30
(f) the commercial paper borrowings of Rockwell;
(g) the Amended and Restated Credit Agreement dated
December 3, 1997 among Rockwell, the banks parties thereto and
Xxxxxx Guaranty Trust Company of New York, as agent, and any
borrowings thereunder; and
(h) [add Rockwell Automation overseas credit
facilities.]
"ROCKWELL GOOD GOVERNMENT COMMITTEE" means the Rockwell
International Corporation Good Government Committee, a political action
committee (Federal Elections Commission I.D. No. C00324996), and all funds held
thereby.
"ROCKWELL INSURANCE ESCROW ACCOUNT" means (a) the escrow
account established by Rockwell prior to the Time of Distribution with Travelers
Insurance Company relating to the processing of the deductible portion of
certain workers' compensation and automobile liability losses and the
self-insured retention portion of certain commercial general liability losses
and (b) all funds contained therein and rights related thereto.
"ROCKWELL PROPERTY TRUST" means (a) the Master Rockwell
Property Exchange Trust established by Rockwell prior to the Time of
Distribution to receive proceeds from the sale of certain real property and to
disburse trust assets for the purpose of acquiring certain real property and (b)
all funds contained therein and rights related thereto.
"ROCKWELL SCIENCE CENTER" shall have the meaning ascribed
thereto in the preamble.
"ROCKWELL SCIENCE CENTER AGENCY LICENSING AGREEMENTS" means
(a) the Agency Licensing Agreement between Advanced Technologies Licensing
Corporation, a Rockwell Science Center Subsidiary, and Rockwell entered into on
or prior to the date hereof and (b) the Agency Licensing Agreement between
Advanced Technologies Corporation, a Rockwell Science Center Subsidiary, and
Rockwell Xxxxxxx entered into on or prior to the date hereof.
"ROCKWELL SCIENCE CENTER ASSETS" means the following:
(a) all rights of any member of the Rockwell Science
Center Group under any Transaction Agreement to which it is or becomes a
party;
(b) all Assets which are expressly allocated to any
member of the Rockwell Science Center Group pursuant to any Transaction
Agreement;
(c) all Assets (other than those described in paragraphs
(b) and (d) of the definition of "Rockwell Automation Assets" and
paragraphs (b) and (d) of the definition of "Rockwell Xxxxxxx Assets")
which immediately prior to the Time of Distribution are owned by Rockwell
or any of its Subsidiaries (including members of the Rockwell Xxxxxxx
Group and members of the Rockwell Science Center Group) and which are
used
26
31
primarily in or relate primarily to the Rockwell Science Center Business,
as the same shall exist as of such time, including:
(i) all rights in respect of Unrelated Former Businesses
relating primarily to the operations of the Rockwell Science
Center Business and which do not constitute a Rockwell Automation
Asset described in any of paragraphs (b) or (d)(i) - (xxi) of the
definition of "Rockwell Automation Assets" or a Rockwell Xxxxxxx
Asset described in any of paragraphs (b) or (d) of the definition
of "Rockwell Xxxxxxx Assets", including:
(A) rights to receive payments for services
provided under Section 2 of the Boeing Transition Agreement
and under Section 2 of the Conexant Transition Agreement;
(B) all rights to the extent relating primarily
to the operations of the Rockwell Science Center Business
to receive indemnification from (x) BNA pursuant to the
Boeing Post-Closing Covenants Agreement, (y) Meritor
pursuant to the Meritor Distribution Agreement or (z)
Conexant pursuant to the Conexant Distribution Agreement;
and
(C) all rights to the extent relating primarily
to the operations of the Rockwell Science Center Business
under Section 20 of the Boeing Transition Agreement;
(d) the following specifically enumerated Assets which
immediately prior to the Time of Distribution are owned by Rockwell or
any of its Subsidiaries (including members of the Rockwell Xxxxxxx Group
and members of the Rockwell Science Center Group), in each case whether
or not such Assets are used primarily in or relate primarily to the
Rockwell Automation Business, the Rockwell Xxxxxxx Business or the
Rockwell Science Center Business:
(i) the Rockwell Science Center U.S. Bank Accounts and
the Rockwell Science Center Non-U.S. Bank Accounts;
(ii) (A) cash contained in Rockwell Science Center U.S.
Bank Accounts and Rockwell Science Center Non-U.S. Bank Accounts
of up to an aggregate Recorded Amount of $2 million; (B) all
balances contained in xxxxx cash accounts at non-U.S. locations of
the Rockwell Science Center Business; and (C) the dollar value of
travelers checks at non-U.S. locations of the Rockwell Science
Center Business;
(iii) the Rockwell Science Center Securities;
(iv) the patents, patent applications, invention
disclosures and registered trademarks set forth on Schedule
1.01(r); and
(v) 3% of all assets of the MetLife Trust; and
27
32
(e) all rights, choses in action, causes of action and claims
of Rockwell or any of its Subsidiaries (including members of the Rockwell
Xxxxxxx Group and members of the Rockwell Science Center Group) to the
extent relating to any asset described in clauses (a) through (d) above.
Anything contained herein to the contrary notwithstanding, assets
described in paragraphs (b) and (d) of the definition of "Rockwell Automation
Assets" and paragraphs (b) and (d) of the definition of "Rockwell Xxxxxxx
Assets" will not be included in Rockwell Science Center Assets.
"ROCKWELL SCIENCE CENTER BOARD" means the Board of Directors of
Rockwell Science Center.
"ROCKWELL SCIENCE CENTER BUSINESS" means:
(a) the business engaged in prior to the Time of Distribution
by the Rockwell Science Center Group of researching, developing,
designing, engineering, manufacturing, selling, licensing, servicing and
supporting technologies in electronics, imaging and optics, material and
computational sciences and information technologies;
(b) Former Businesses related primarily to any of the
foregoing; and
(c) activities of the Rockwell Science Center Group related to
the foregoing; provided, however, that, notwithstanding anything
contained herein to the contrary, the Rockwell Science Center Business
shall not include (i) the Rockwell Automation Business, (ii) the Rockwell
Xxxxxxx Business or (iii) the Unrelated Former Businesses set forth on
Schedule 1.01(h).
"ROCKWELL SCIENCE CENTER CREDIT FACILITIES" means [list of
Rockwell Science Center Credit Facilities, if any, to be provided].
"ROCKWELL SCIENCE CENTER EXPENSES" means the following
out-of-pocket costs and expenses of Rockwell or any of its Subsidiaries
(including members of the Rockwell Xxxxxxx Group and members of the Rockwell
Science Center Group) (in each case, whether incurred and/or paid before, at or
after the Time of Distribution):
(a) all out-of-pocket costs and expenses (including legal fees
and expenses) of and related to the credit facilities established prior
to the Time of Distribution for the benefit of Rockwell Science Center
and other members of the Rockwell Science Center Group with [ ], as
agent; and
(b) all other out-of-pocket costs and expenses related to the
Distribution to the extent the same relate to operations of the Rockwell
Science Center Business after the Time of Distribution.
28
33
"ROCKWELL SCIENCE CENTER FINANCIAL INSTRUMENTS" means all credit
facilities, guaranties, foreign currency forward exchange contracts, comfort
letters, letters of credit and similar instruments related solely to the
Rockwell Science Center Business under which any member of the Rockwell
Automation Group or the Rockwell Xxxxxxx Group has any primary, secondary,
contingent, joint, several or other Liability, including those set forth on
Schedule 1.01(s).
"ROCKWELL SCIENCE CENTER GROUP" means Rockwell Science Center and
the Rockwell Science Center Subsidiaries.
"ROCKWELL SCIENCE CENTER INDEMNITEES" means each member of the
Rockwell Science Center Group, each of their respective Representatives and each
of the heirs, executors, successors and permitted assigns of any of the
foregoing.
"ROCKWELL SCIENCE CENTER LIABILITIES" means the following:
(a) all Liabilities of any member of the Rockwell Science
Center Group under any Transaction Agreement to which it is or becomes a
party;
(b) all Liabilities for which any member of the Rockwell
Science Center Group is expressly made responsible pursuant to any
Transaction Agreement;
(c) all Liabilities (other than those described in paragraphs
(b) and (d) of the definition of "Rockwell Automation Liabilities" and
paragraphs (b) and (d) of the definition of "Rockwell Xxxxxxx
Liabilities") of Rockwell or any of its Subsidiaries (including members
of the Rockwell Xxxxxxx Group and members of the Rockwell Science Center
Group) to the extent based upon, arising out of or relating to the
Rockwell Science Center Assets or the Rockwell Science Center Business,
including:
(i) all Liabilities to the extent relating to the
Rockwell Science Center Business based upon, arising out of or
relating to Contracts (whether or not such Contracts constitute
Rockwell Science Center Assets) (including any primary, secondary,
contingent or other obligations, such as under guaranties or
indemnities, in respect of such Contracts), including Liabilities
arising out of any breaches or violations and Liabilities to make
payments or otherwise in connection with the termination thereof
as a result of the transactions contemplated hereby or otherwise
and including Liabilities in respect of Shared Agreements; and
(ii) all Liabilities based upon, arising out of or
relating to Unrelated Former Businesses to the extent relating to
the operations of the Rockwell Science Center Business which do
not constitute a Rockwell Automation Liability described in any of
paragraphs (b) or (d)(i) - (viii) of the definition of "Rockwell
Automation Liabilities" or a Rockwell Xxxxxxx Liability described
in any of paragraphs (b) or (d) of the definition of "Rockwell
Xxxxxxx Liabilities", including (A) all performance and other
Liabilities relating to the services required to be
29
34
provided under Section 2 of the Boeing Transition Agreement and
Section 2 of the Conexant Transition Agreement; and (B) all
Liabilities to the extent relating to the operations of the
Rockwell Science Center Business to indemnify (x) BNA and certain
other Persons pursuant to the Boeing Post-Closing Covenants
Agreement, (y) Meritor and certain other Persons pursuant to the
Meritor Distribution Agreement or (z) Conexant and certain other
Persons pursuant to the Conexant Distribution Agreement;
provided, however, that Rockwell Science Center Liabilities shall not
include (i) Rockwell Automation Liabilities described in paragraph (c)(i)
of the definition of "Rockwell Automation Liabilities" in respect of
Contracts that constitute Rockwell Science Center Assets or (ii) Rockwell
Xxxxxxx Liabilities described in paragraph (c)(i) of the definition of
"Rockwell Xxxxxxx Liabilities" in respect of Contracts that constitute
Rockwell Science Center Assets; and
(d) (i) all Liabilities based upon, arising out of or
relating to the Actions set forth on Schedule 1.01(t);
(ii) all Liabilities based upon, arising out of or
relating to the Rockwell Science Center Credit Facilities,
including all indebtedness outstanding thereunder and interest and
fees payable with respect thereto; and
(iii) all Liabilities based upon, arising out of or
relating to corporate office overhead claims filed by Rockwell
with the U.S. Department of Defense prior to the Time of
Distribution, including all Liabilities in respect of any
adjustments thereto, which would have been allocated to Rockwell
Science Center in accordance with government contract cost
allocation practices of Rockwell in effect immediately prior to
the Time of Distribution.
Anything contained herein to the contrary notwithstanding,
Liabilities described in paragraphs (b) and (d) of the definition of "Rockwell
Automation Liabilities" and paragraphs (b) and (d) of the definition of
"Rockwell Xxxxxxx Liabilities" will not be included in Rockwell Science Center
Liabilities.
"ROCKWELL SCIENCE CENTER MARKS" shall have the meaning ascribed
thereto in Section 3.10(c)(i).
"ROCKWELL SCIENCE CENTER NON-U.S. BANK ACCOUNTS" means the bank
accounts set forth on Schedule 1.01(u).
"ROCKWELL SCIENCE CENTER SECURITIES" means the Securities set
forth on Schedule 1.01(y).
"ROCKWELL SCIENCE CENTER SERVICES AGREEMENTS" means (a) the
agreement between Rockwell Science Center and Rockwell entered into on or prior
to the Distribution Date pursuant to which, among other things, Rockwell Science
Center will provide Rockwell with research and development services and (b) the
agreement between Rockwell Science Center and
30
35
Rockwell Xxxxxxx entered into on or prior to the Distribution Date pursuant to
which, among other things, Rockwell Science Center will provide Rockwell Xxxxxxx
with research and development services.
"ROCKWELL SCIENCE CENTER SHARED AGREEMENTS" means all Contracts
under which Rockwell or any Rockwell Subsidiary and/or Rockwell Xxxxxxx or any
Rockwell Xxxxxxx Subsidiary has any rights or primary, secondary, contingent,
joint, several or other Liability arising out of or relating to both (i) the
Rockwell Science Center Business and (ii) one or more other businesses of
Rockwell or any Rockwell Subsidiary and/or one or more other businesses of
Rockwell Xxxxxxx or any Rockwell Xxxxxxx Subsidiary, which by their terms will
be outstanding or in effect as of or at any time following the Time of
Distribution.
"ROCKWELL SCIENCE CENTER SUBSIDIARY" means each Person listed on
Schedule 1.01(v).
"ROCKWELL SCIENCE CENTER U.S. BANK ACCOUNTS" means all bank
accounts set forth on Schedule 1.01(w).
"ROCKWELL SUBSIDIARY" means each Subsidiary of Rockwell other than
Rockwell Xxxxxxx, the Xxxxxxxx Xxxxxxx Subsidiaries, Rockwell Science Center and
the Rockwell Science Center Subsidiaries.
"ROCKWELL VEBA" means (a) the Trust for Employee Welfare Benefit
Programs of Rockwell International Corporation and (b) all funds contained
therein and rights related thereto.
"SECURITIES" means all short-term and long-term investments,
banker's acceptances, shares of stock, notes, bonds, debentures, evidences of
indebtedness, certificates of interest or participation in profit-sharing
agreements, collateral-trust certificates, preorganization certificates or
subscriptions, transferable shares, puts, calls, straddles, options, investment
contracts, voting-trusts and certificates and other securities of any kind
(other than ownership interests in Subsidiaries, Rockwell Science Center and
joint ventures).
"SHARED AGREEMENTS" means Rockwell Xxxxxxx Shared Agreements and
Rockwell Science Center Shared Agreements.
"SHARED POLICIES" means (a) in the case of Rockwell Xxxxxxx, all
Policies (other than the Current Aviation Products Liability Policy) which
include Rockwell Xxxxxxx, any of the Rockwell Xxxxxxx Subsidiaries and/or the
Rockwell Xxxxxxx Business within the definition of the named insured and (b) in
the case of Rockwell Science Center, all Policies (other than the Current
Aviation Products Liability Policy) which include Rockwell Science Center, any
of the Rockwell Science Center Subsidiaries and/or the Rockwell Science Center
Business within the definition of the named insured.
"STRATEGIC SOURCING AGREEMENTS" means Shared Agreements (other
than those which do not relate to the Rockwell Automation Business) that are
strategic sourcing or similar agreements under which members of two or more
Groups purchased or had rights to purchase
31
36
any products or services prior to the Time of Distribution, as such Shared
Agreements exist as of the Time of Distribution.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other organization, whether incorporated or unincorporated, of which such Person
or any Subsidiaries of such Person controls or owns, directly or indirectly,
more than 50% of the stock or other equity interest, or more than 50% of the
voting power entitled to vote on the election of members to the board of
directors or similar governing body; provided, however, that for purposes of
this Agreement none of Rockwell Xxxxxxx, the Xxxxxxxx Xxxxxxx Subsidiaries,
Rockwell Science Center or the Rockwell Science Center Subsidiaries shall be
deemed to be a Rockwell Subsidiary.
"TAX" shall have the meaning ascribed thereto in the Tax
Allocation Agreement.
"TAX ALLOCATION AGREEMENT" means the Tax Allocation Agreement by
and among Rockwell, Rockwell Xxxxxxx and Rockwell Science Center, substantially
in the form attached hereto as Annex B.
"TAX RULING" means a private letter ruling issued by the IRS in
form and substance satisfactory to Rockwell (in its sole discretion) indicating
that the Distribution will qualify as a tax-free spin-off to the shareowners of
Rockwell for federal income tax purposes under Section 368(a)(1)(D) of the Code.
"THIRD PARTY CLAIM" shall have the meaning ascribed thereto in
Section 4.06(a).
"TIME OF DISTRIBUTION" means the close of business on the
Distribution Date.
"TRANSACTION AGREEMENTS" means, collectively, this Agreement and
each Ancillary Agreement.
"TRANSITION AGREEMENT" means the transition services agreement by
and among Rockwell, Rockwell Xxxxxxx and Rockwell Science Center entered into on
or prior to the Distribution Date and providing for various service and other
relationships among Rockwell, Rockwell Xxxxxxx and Rockwell Science Center
following the Distribution Date.
"TRANSITION PERIOD" shall have the meaning ascribed thereto in
Section 3.12(g)(i)(C).
"UNRELATED FORMER BUSINESSES" means all Former Businesses not
included in the Rockwell Automation Business, the Rockwell Xxxxxxx Business or
the Rockwell Science Center Business. Notwithstanding anything to the contrary
contained herein, Unrelated Former Businesses shall include the Former
Businesses set forth on Schedule 1.01(h).
"WASHINGTON OFFICE ASSETS" means Rockwell's office facility
located at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx, the lease agreement dated
December 31, 1997 between Rockwell and US Property Fund GmbH & Co. related
thereto and all leasehold improvements, equipment and other tangible assets
located thereat.
32
37
ARTICLE II
THE DISTRIBUTION
SECTION 2.01 The Distribution.
(a) Subject to Section 2.03, on or prior to the
Distribution Date, Rockwell will deliver to the Distribution Agent, for the
benefit of holders of record of Rockwell Common Stock as of the Record Date, a
certificate or certificates, endorsed by Rockwell in blank, representing, in the
aggregate, a number of shares of Rockwell Xxxxxxx Common Stock equal to the
number of shares of Rockwell Common Stock issued and outstanding as of the
Record Date (excluding treasury shares held by Rockwell), and Rockwell will
instruct the Distribution Agent to make book-entry credits on the Distribution
Date or as soon thereafter as practicable for each holder of record of Rockwell
Common Stock as of the Record Date, or the designated transferee or transferees
of such holder, for a number of shares of Rockwell Xxxxxxx Common Stock equal to
the number of shares of Rockwell Common Stock so held by such holder of record
as of the Record Date (excluding treasury shares held by Rockwell). The
Distribution will be effective as of the Time of Distribution.
(b) Rockwell and Rockwell Xxxxxxx will each provide to
the Distribution Agent all information (including information necessary to make
appropriate book-entry credits) and share certificates, in each case, as may be
required in order to complete the Distribution on the basis of one share of
Rockwell Xxxxxxx Common Stock for each share of Rockwell Common Stock issued and
outstanding as of the Record Date (excluding treasury shares held by Rockwell).
SECTION 2.02 Cooperation Prior to the Distribution. Prior
to the Distribution:
(a) Rockwell and Rockwell Xxxxxxx will prepare the
Information Statement, which will set forth appropriate disclosure concerning
Rockwell Xxxxxxx, the Distribution and such other matters as Rockwell and
Rockwell Xxxxxxx may determine. Rockwell and Rockwell Xxxxxxx will prepare, and
Rockwell Xxxxxxx will file with the Commission, the Form 10, which will include
or incorporate by reference the Information Statement. Rockwell Xxxxxxx will use
its reasonable best efforts to cause the Form 10 to become effective under the
Exchange Act as soon as practicable following the filing thereof. Promptly after
effectiveness of the Form 10 and completion of the Information Statement
included therein, Rockwell will mail to the holders of Rockwell Common Stock the
Information Statement.
(b) Rockwell and Rockwell Xxxxxxx will cooperate in
preparing, filing with the Commission and causing to become effective any
registration statements or amendments thereof which are required to reflect the
establishment of, or amendments to, any employee benefit and other plans
contemplated by the Employee Matters Agreement.
(c) Rockwell and Rockwell Xxxxxxx will take all such
action as may be necessary or appropriate under the securities or "blue sky"
laws of the states or other political subdivisions of the United States and the
securities laws of any applicable foreign countries or
33
38
other political subdivisions thereof in connection with the transactions
contemplated by this Agreement.
(d) Rockwell and Rockwell Xxxxxxx will cause to be
prepared, and Rockwell Xxxxxxx will file and use its reasonable best efforts to
have approved, an application for the listing on the NYSE of the Rockwell
Xxxxxxx Common Stock to be distributed in the Distribution.
SECTION 2.03 Rockwell Board Action; Conditions to the
Distribution. The Rockwell Board will in its discretion establish the Record
Date and the Distribution Date and all appropriate procedures in connection with
the Distribution, but in no event will the Distribution occur prior to such time
as each of the following conditions shall have been satisfied or shall have been
waived by the Rockwell Board in accordance with Section 2.04:
(a) Rockwell shall have received the Tax Ruling and the
Tax Ruling shall be in full force and effect and shall not have been modified or
amended in any respect adversely affecting the tax consequences set forth
therein;
(b) the Rockwell Board shall have given final approval
of the Distribution;
(c) all material Consents which are required to effect
the Distribution shall have been obtained and shall be in full force and effect;
(d) the Form 10 shall have become effective under the
Exchange Act;
(e) the Certificate of Incorporation, the By-Laws and
the Rights Plan each shall have been adopted and be in effect;
(f) the Rockwell Xxxxxxx Common Stock shall have been
approved for listing upon notice of issuance on the NYSE;
(g) the transactions contemplated by Section 3.01 and
Section 3.02 shall have been consummated in all material respects;
(h) Rockwell, Rockwell Xxxxxxx and Rockwell Science
Center shall have entered into each of the Ancillary Agreements to which they
are parties and each such agreement shall be in full force and effect;
(i) no order, injunction or decree issued by any court
of competent jurisdiction or other legal restraint or prohibition preventing
consummation of the Distribution shall be in effect; and
(j) no suit, action or proceeding by or before any court
of competent jurisdiction or other Governmental Entity shall have been commenced
and be pending to restrain or challenge the Distribution, and no inquiry shall
have been received that in the reasonable judgment of the Rockwell Board may
lead to such a suit, action or proceeding;
34
39
provided that the satisfaction of such conditions will not create any obligation
on the part of Rockwell to effect or seek to effect the Distribution or in any
way limit Rockwell's right to terminate this Agreement set forth in Section 6.14
or alter the consequences of any such termination from those specified in
Section 6.14.
SECTION 2.04 Waiver of Conditions. Any or all of the
conditions set forth in Section 2.03 may be waived, in whole or in part, in the
sole discretion of the Rockwell Board.
SECTION 2.05 Disclosure. If at any time after the date
hereof any of the parties shall become aware of any circumstances that will or
could reasonably be expected to prevent any or all of the conditions contained
in Section 2.03 from being satisfied, it will promptly give to the other parties
written notice of those circumstances.
ARTICLE III
TRANSACTIONS RELATING TO THE DISTRIBUTION
SECTION 3.01 Intercorporate Reorganization.
(a) Prior to the Distribution Date, Rockwell and
Rockwell Xxxxxxx will take all actions necessary to increase the outstanding
shares of Rockwell Xxxxxxx Common Stock so that, immediately prior to the
Distribution, Rockwell will hold a number of shares of Rockwell Xxxxxxx Common
Stock equal to the number of shares of Rockwell Common Stock issued and
outstanding as of the Record Date (excluding treasury shares held by Rockwell).
(b) Subject to Section 3.11, prior to the Time of
Distribution, Rockwell, Rockwell Xxxxxxx and Rockwell Science Center will take,
or cause to be taken, all actions necessary, including the actions specified in
Section 3.01(c), to have:
(i) Rockwell, each Rockwell Subsidiary, Rockwell Science
Center and each Rockwell Science Center Subsidiary assign and transfer,
or cause to be assigned and transferred, to Rockwell Xxxxxxx or a
Rockwell Xxxxxxx Subsidiary, as appropriate, any and all right, title and
interest of Rockwell, each of the Rockwell Subsidiaries, Rockwell Science
Center and each of the Rockwell Science Center Subsidiaries in the
Rockwell Xxxxxxx Subsidiaries;
(ii) Rockwell, each Rockwell Subsidiary, Rockwell Xxxxxxx
and each Rockwell Xxxxxxx Subsidiary assign and transfer, or cause to be
assigned and transferred, to Rockwell Science Center or a Rockwell
Science Center Subsidiary, as appropriate, any and all right, title and
interest of Rockwell, each of the Rockwell Subsidiaries, Rockwell Xxxxxxx
and each of the Rockwell Xxxxxxx Subsidiaries in the Rockwell Science
Center Subsidiaries;
(iii) Rockwell Xxxxxxx, each Xxxxxxxx Xxxxxxx Subsidiary,
Rockwell Science Center and each Rockwell Science Center Subsidiary
assign and transfer, or cause to be assigned and transferred, to Rockwell
or a Rockwell Subsidiary, as appropriate, any and
35
40
all right, title and interest of Rockwell Xxxxxxx, each of the Rockwell
Xxxxxxx Subsidiaries, Rockwell Science Center and each of the Rockwell
Science Center Subsidiaries in the Rockwell Subsidiaries;
(iv) Rockwell, each Rockwell Subsidiary, Rockwell Science
Center and each Rockwell Science Center Subsidiary assign and transfer,
or cause to be assigned and transferred, to Rockwell Xxxxxxx or a
Rockwell Xxxxxxx Subsidiary, as appropriate, any and all right, title and
interest of Rockwell, each of the Rockwell Subsidiaries, Rockwell Science
Center and each of the Rockwell Science Center Subsidiaries in Rockwell
Xxxxxxx Assets;
(v) Rockwell, each Rockwell Subsidiary, Rockwell Xxxxxxx
and each Rockwell Xxxxxxx Subsidiary assign and transfer, or cause to be
assigned and transferred, to Rockwell Science Center or a Rockwell
Science Center Subsidiary, as appropriate, any and all right, title and
interest of Rockwell, each of the Rockwell Subsidiaries, Rockwell Xxxxxxx
and each of the Rockwell Xxxxxxx Subsidiaries in Rockwell Science Center
Assets;
(vi) Rockwell Xxxxxxx, each Xxxxxxxx Xxxxxxx Subsidiary,
Rockwell Science Center and each Rockwell Science Center Subsidiary
assign and transfer, or cause to be assigned and transferred, to Rockwell
or a Rockwell Subsidiary, as appropriate, any and all right, title and
interest of Rockwell Xxxxxxx, each of the Rockwell Xxxxxxx Subsidiaries,
Rockwell Science Center and each of the Rockwell Science Center
Subsidiaries in Rockwell Automation Assets;
(vii) Rockwell, each Rockwell Subsidiary, Rockwell Science
Center and each Rockwell Science Center Subsidiary assign and transfer,
or cause to be assigned and transferred, to Rockwell Xxxxxxx or a
Rockwell Xxxxxxx Subsidiary, as appropriate, and have Rockwell Xxxxxxx or
a Rockwell Xxxxxxx Subsidiary, as appropriate, unconditionally assume and
undertake to pay, perform and discharge, in a timely manner and in
accordance with the terms thereof, all Liabilities of Rockwell, the
Rockwell Subsidiaries, Rockwell Science Center and the Rockwell Science
Center Subsidiaries that are Rockwell Xxxxxxx Liabilities;
(viii) Rockwell, each Rockwell Subsidiary, Rockwell Xxxxxxx
and each Rockwell Xxxxxxx Subsidiary assign and transfer, or cause to be
assigned and transferred, to Rockwell Science Center or a Rockwell
Science Center Subsidiary, as appropriate, and have Rockwell Science
Center or a Rockwell Science Center Subsidiary, as appropriate,
unconditionally assume and undertake to pay, perform and discharge, in a
timely manner and in accordance with the terms thereof, all Liabilities
of Rockwell, the Rockwell Subsidiaries, Rockwell Xxxxxxx and the Rockwell
Xxxxxxx Subsidiaries that are Rockwell Science Center Liabilities; and
(ix) Rockwell Xxxxxxx, each Xxxxxxxx Xxxxxxx Subsidiary,
Rockwell Science Center and each Rockwell Science Center Subsidiary
assign and transfer, or cause to be assigned and transferred, to Rockwell
or a Rockwell Subsidiary, as appropriate, and have
36
41
Rockwell or a Rockwell Subsidiary, as appropriate, unconditionally assume
and undertake to pay, perform and discharge, in a timely manner and in
accordance with the terms thereof, all Liabilities of Rockwell Xxxxxxx,
the Rockwell Xxxxxxx Subsidiaries, Rockwell Science Center and the
Rockwell Science Center Subsidiaries that are Rockwell Automation
Liabilities.
In the event that at any time or from time to time (whether
prior to, at or after the Time of Distribution) any party (or any member of such
party's respective Group) shall receive or otherwise possess any Asset that is
allocated to any other Person pursuant to this Agreement or any Ancillary
Agreement, such party will promptly transfer, or cause to be transferred, such
Asset to the Person so entitled thereto. Prior to any such transfer, the Person
receiving or possessing such Asset will hold such Asset in trust for the benefit
of the Person entitled thereto (at the expense of the Person entitled thereto).
In the event that at any time or from time to time (whether
prior to, at or after the Time of Distribution) any party determines that any
other party (or any member of such other party's respective Group) shall not
have unconditionally assumed any Liabilities that are allocated to such other
party (or a member of such other party's respective Group) pursuant to this
Agreement or any Ancillary Agreement, such other party will promptly execute and
deliver, or cause to be executed and delivered, all such documents and
instruments and will take, or cause to be taken, all such actions as the
requesting party may reasonably request to unconditionally assume, or cause to
be unconditionally assumed, such Liabilities.
(c) Subject to Section 3.11, Rockwell, Rockwell Xxxxxxx
and Rockwell Science Center will take, or cause to be taken, the actions
described on Schedule 3.01(c) in connection with United States and international
operations of the Rockwell Xxxxxxx Business, the Rockwell Automation Business
and the Rockwell Science Center Business.
(d) In connection with the transfers of Subsidiaries and
Assets and the assumptions of Liabilities contemplated by subsections (b) and
(c) of this Section 3.01, Rockwell, Rockwell Xxxxxxx and Rockwell Science Center
will execute or cause to be executed by the appropriate entities the Conveyance
and Assumption Instruments. The transfer of capital stock contemplated by such
subsections will be effected by means of delivery of stock certificates duly
endorsed or accompanied by duly executed stock powers and notation on the stock
record books of the corporation or other legal entities involved and, to the
extent required by applicable law, by notation on appropriate registries.
(e) Each of Rockwell (on behalf of itself and each other
member of the Rockwell Automation Group), Rockwell Xxxxxxx (on behalf of itself
and each other member of the Rockwell Xxxxxxx Group) and Rockwell Science Center
(on behalf of itself and each other member of the Rockwell Science Center Group)
understands and agrees that, except as expressly set forth in any Transaction
Agreement, no party to any Transaction Agreement or any other agreement or
document contemplated by any Transaction Agreement either has or is, in such
agreement or otherwise, representing or warranting in any way as to the Assets,
Subsidiaries, businesses or Liabilities retained, transferred or assumed as
contemplated hereby or thereby, as to any consents or approvals required in
connection with the transactions contemplated by the
37
42
Transaction Agreements, as to the value or freedom from any Lien of, or any
other matter concerning, any Assets, Liabilities or Subsidiaries of such party,
or as to the absence of any defenses or rights of setoff or freedom from
counterclaim with respect to any claim or other Assets or Subsidiaries of any
party, or as to the legal sufficiency of any assignment, document or instrument
delivered hereunder or thereunder to convey title to any Asset or Subsidiary or
thing of value upon the execution, delivery or filing hereof or thereof. Except
as may expressly be set forth in any Transaction Agreement, all Assets and
Subsidiaries being transferred or retained as contemplated by any Transaction
Agreement or any other agreement or document contemplated by any Transaction
Agreement are being transferred, or are being retained, on an "as is", "where
is" basis (and, in the case of the transfer of any real property, by means of a
quitclaim or similar form deed or conveyance) and the respective transferees
shall bear the economic and legal risks that any conveyance shall prove to be
insufficient or that the title to any Asset or Subsidiary shall be other than
good and marketable and free and clear of any Lien.
(f) It is the intention of the parties that payments
made by the parties to each other after the Time of Distribution pursuant to
this Agreement, the Employee Matters Agreement and the Tax Allocation Agreement
are to be treated as relating back to the transactions occurring prior to the
Time of Distribution pursuant to this Section 3.01 as an adjustment to the
transfers of Assets, Subsidiaries and Liabilities contemplated by this Section
3.01, and Rockwell, Rockwell Xxxxxxx and Rockwell Science Center will, and will
cause their Subsidiaries to, take positions consistent with such intention with
any Tax authority, unless with respect to any payment any party receives an
opinion of counsel reasonably acceptable to Rockwell and Rockwell Xxxxxxx to the
effect that there is no substantial authority for such a position.
SECTION 3.02 Financial Instruments.
(a) Rockwell Xxxxxxx will, at its expense, take or cause
to be taken all actions and enter into (or cause the Rockwell Xxxxxxx
Subsidiaries to enter into) such agreements and arrangements as shall be
necessary to effect the release of and substitution for each member of the
Rockwell Automation Group, as of the Time of Distribution, from all primary,
secondary, contingent, joint, several and other Liabilities in respect of
Rockwell Xxxxxxx Financial Instruments (it being understood that all Liabilities
in respect of Rockwell Xxxxxxx Financial Instruments are Rockwell Xxxxxxx
Liabilities).
(b) Rockwell Xxxxxxx' obligations under this Section
3.02 will continue to be applicable to all Rockwell Xxxxxxx Financial
Instruments identified at any time by Rockwell, whether before, at or after the
Time of Distribution.
(c) Rockwell Science Center will, at its expense, take
or cause to be taken all actions and enter into (or cause the Rockwell Science
Center Subsidiaries to enter into) such agreements and arrangements as shall be
necessary to effect the release of and substitution for each member of the
Rockwell Automation Group and each member of the Rockwell Xxxxxxx Group,
effective as of the Time of Distribution, from all primary, secondary,
contingent, joint, several and other Liabilities in respect of Rockwell Science
Center Financial Instruments (it
38
43
being understood that all Liabilities in respect of Rockwell Science Center
Financial Instruments are Rockwell Science Center Liabilities).
(d) Rockwell Science Center's obligations under this
Section 3.02 will continue to be applicable to all Rockwell Science Center
Financial Instruments identified at any time by Rockwell or Rockwell Xxxxxxx, as
the case may be, whether before, at or after the Time of Distribution.
SECTION 3.03 Shared Agreements.
(a) The parties acknowledge and understand that (i) all
Rockwell Science Center Shared Agreements that relate to the Rockwell Automation
Business and (ii) all Rockwell Xxxxxxx Shared Agreements shall constitute
Rockwell Automation Assets, except that, with respect to Shared Agreements
relating to Unrelated Former Businesses, Rockwell Xxxxxxx will have the rights
described in paragraph (c)(i) of the definition of "Rockwell Xxxxxxx Assets" and
Rockwell Science Center will have the rights described in paragraph (c)(i) of
the definition of "Rockwell Science Center Assets". All Rockwell Science Center
Shared Agreements that do not relate to the Rockwell Automation Business will
constitute (i) Rockwell Xxxxxxx Assets if they relate primarily to the Rockwell
Xxxxxxx Business and (ii) Rockwell Science Center Assets if they relate
primarily to the Rockwell Science Center Business. No member of any Group will
extend or amend any Shared Agreement after the Time of Distribution unless it is
the owner of the Shared Agreement.
(b) The parties agree as follows with respect to
Strategic Sourcing Agreements:
(i) For so long as any member of the Rockwell Automation
Group derives any benefit under any Strategic Sourcing Agreement
following the Time of Distribution (including the ability to continue to
make purchases on the terms set forth in the Strategic Sourcing
Agreement) as a result of purchases by members of the Rockwell Xxxxxxx
Group or the Rockwell Science Center Group, as the case may be, then
Rockwell Xxxxxxx or Rockwell Science Center, as the case may be, will use
reasonable best efforts to, and will cause the other members of the
Rockwell Xxxxxxx Group or the Rockwell Science Center Group, as the case
may be, to use reasonable best efforts to, continue to make purchases
under such Strategic Sourcing Agreement in accordance with the terms
thereof.
(ii) Each party will use its reasonable best efforts to
obtain, or cause to be obtained, any required consents of third parties
to Strategic Sourcing Agreements to allow members of any Group to make
purchases under Strategic Sourcing Agreements on the terms and conditions
of such Strategic Sourcing Agreements existing as of the Time of
Distribution.
(iii) If Rockwell receives any rebate from a third party
to a Strategic Sourcing Agreement after the Time of Distribution,
Rockwell will promptly pay to each of Rockwell Xxxxxxx and Xxxxxxxx
Science Center its proportionate share of such rebate, if any, as
reasonably determined by Rockwell (after deducting Rockwell's
out-of-pocket
39
44
costs and expenses incurred in connection with obtaining such rebate),
based on the amount of purchases made by each Group under such Strategic
Sourcing Agreement that the rebate relates to.
(iv) If Rockwell is required for any reason to return
after the Time of Distribution all or any portion of a rebate received
from a third party to a Strategic Sourcing Agreement, then each of
Rockwell Xxxxxxx and Xxxxxxxx Science Center will promptly upon request
of Rockwell pay to Rockwell its proportionate share of such rebate, as
reasonably determined by Rockwell.
SECTION 3.04 Intercompany Accounts and Arrangements.
(a) Elimination of Intercompany Accounts.
(i) Except as set forth in Section 3.04(a)(ii) or on
Schedule 3.04(a), Rockwell Xxxxxxx, on behalf of itself and each other
member of the Rockwell Xxxxxxx Group, Rockwell, on behalf of itself and
each other member of the Rockwell Automation Group, and Rockwell Science
Center, on behalf of itself and each other member of the Rockwell Science
Center Group, hereby settle and eliminate, by cancellation or transfer to
a member of the other Group (whether to cancel or transfer and the manner
thereof will be determined by Rockwell), effective as of the Time of
Distribution, all intercompany receivables, payables and other balances
(including intercompany cash management balances) existing immediately
prior to the Time of Distribution (a) between Rockwell Xxxxxxx and/or any
Rockwell Xxxxxxx Subsidiary, on the one hand, and Rockwell and/or any
Rockwell Subsidiary, on the other hand, (b) between Rockwell Science
Center and/or any Rockwell Science Center Subsidiary, on the one hand,
and Rockwell and/or any Rockwell Subsidiary, on the other hand, and (c)
between Rockwell Science Center and/or any Rockwell Science Center
Subsidiary, on the one hand, and Rockwell Xxxxxxx and/or any Rockwell
Xxxxxxx Subsidiary, on the other hand.
(ii) The provisions of Section 3.04(a)(i) will not apply
to any intercompany receivables, payables and other balances arising
under any Transaction Agreement, including those arising under Section
3.05 and those incurred in connection with the payment by any party of
any expenses which are required to be paid or reimbursed by the other
party pursuant to Section 6.03.
(b) Intercompany Agreements.
(i) Except as set forth in Section 3.04(b)(ii), in
furtherance of the releases and other provisions of Section 4.01,
Rockwell Xxxxxxx, on behalf of itself and each other member of the
Rockwell Xxxxxxx Group, Rockwell, on behalf of itself and each other
member of the Rockwell Automation Group, and Rockwell Science Center, on
behalf of itself and each other member of the Rockwell Science Center
Group, hereby terminate any and all agreements, arrangements, commitments
or understandings in existence as of the Time of Distribution, whether or
not in writing (A) between or among Rockwell Xxxxxxx and/or any Rockwell
Xxxxxxx Subsidiary, on the one hand, and Rockwell and/or
40
45
any Rockwell Subsidiary, on the other hand, (B) between or among Rockwell
Science Center and/or any Rockwell Science Center Subsidiary, on the one
hand, and Rockwell and/or any Rockwell Subsidiary, on the other hand, and
(C) between or among Rockwell Science Center and/or any Rockwell Science
Center Subsidiary, on the one hand, and Rockwell Xxxxxxx and/or any
Rockwell Xxxxxxx Subsidiary, on the other hand. No such terminated
agreement, arrangement, commitment or understanding (including any
provision thereof which purports to survive termination) shall be of any
further force or effect after the Time of Distribution.
(ii) The provisions of Section 3.04(b)(i) will not apply
to any of the following agreements, arrangements, commitments or
understandings (or to any of the provisions thereof): (A) the Transaction
Agreements (and each other agreement, instrument or document expressly
contemplated by any Transaction Agreement to be entered into by any party
hereto or any of the members of their respective Groups; (B) any
agreements, arrangements, commitments or understandings listed or
described on Schedule 3.04(b)(ii); (C) any agreements, arrangements,
commitments or understandings to which any Person other than the parties
hereto and their respective Affiliates is a party; (D) any other
agreements, arrangements, commitments or understandings that any of the
Transaction Agreements expressly contemplates will survive the Time of
Distribution; and (E) any agreements, arrangements, commitments or
understandings (x) between Rockwell Xxxxxxx and/or any Rockwell Xxxxxxx
Subsidiary, on the one hand, and Rockwell and/or any Rockwell Subsidiary,
on the other hand, (y) between Rockwell Science Center and/or any
Rockwell Science Center Subsidiary, on the one hand, and Rockwell and/or
any Rockwell Subsidiary, on the other hand, or (z) between Rockwell
Science Center and/or any Rockwell Science Center Subsidiary, on the one
hand, and Rockwell Xxxxxxx and/or any Rockwell Xxxxxxx Subsidiary, on the
other hand, in any such case for the purchase or sale of goods or
services of a type which the provider thereof provides to unaffiliated
third parties in the ordinary course of its business ("Ordinary Course
Intercompany Arrangements"); provided, however, that in the event any
such Ordinary Course Intercompany Arrangements (other than any Ancillary
Agreements) do not, as of the Time of Distribution, contain commercially
reasonable arm's-length terms of a type to which unaffiliated parties
would reasonably agree or do not include terms which would normally
appear in such arrangements between unaffiliated parties, Rockwell,
Rockwell Xxxxxxx and Xxxxxxxx Science Center, as the case may be, will
cause such Ordinary Course Intercompany Arrangements to be amended so
that they will contain terms which are, as of the Time of Distribution,
commercially reasonable arm's-length terms of a type to which
unaffiliated parties would reasonably agree.
SECTION 3.05 Cash Management.
(a) Bank Accounts. Subject to Section 3.05(b), (i) all
Rockwell Xxxxxxx U.S. Bank Accounts and Rockwell Xxxxxxx Non-U.S. Bank
Accounts will constitute Rockwell Xxxxxxx Assets, (ii) all Rockwell
Science Center U.S. Bank Accounts and Rockwell Science Center Non-U.S.
Bank Accounts will constitute Rockwell Science Center Assets, and (iii)
all Rockwell Automation Retained Accounts will constitute Rockwell
Automation Assets.
41
46
(b) Cash Balances.
(i) (A) In the event the aggregate Recorded Amount of
cash in the Rockwell Xxxxxxx U.S. Bank Accounts and the Rockwell Xxxxxxx
Non-U.S. Bank Accounts (x) exceeds $20 million, Rockwell Xxxxxxx will pay
to Rockwell (by wire transfer to Rockwell's bank account at Mellon Bank,
N.A., Pittsburgh, Pennsylvania, Account No. 102-3474), within three
business days after the Distribution Date, an amount equal to such excess
or (y) is less than $20 million, Rockwell will pay to Rockwell Xxxxxxx,
within three business days after the Distribution Date, an amount equal
to such deficit.
(B) Rockwell Xxxxxxx will pay to Rockwell (by wire
transfer to Rockwell's bank account at Mellon Bank, N.A., Pittsburgh,
Pennsylvania, Account No. 102-3474), within three business days after the
Distribution Date, (x) all balances contained immediately prior to the
Time of Distribution in xxxxx cash accounts at U.S. locations of the
Rockwell Xxxxxxx Business, and (y) the dollar value of travelers checks
immediately prior to the Time of Distribution at U.S. locations of the
Rockwell Xxxxxxx Business.
(ii) (A) In the event the aggregate Recorded Amount of
cash in the Rockwell Science Center U.S. Bank Accounts and the Rockwell
Science Center Non-U.S. Bank Accounts (x) exceeds $2 million, Rockwell
Science Center will pay to Rockwell (by wire transfer to Rockwell's bank
account at Mellon Bank, N.A., Pittsburgh, Pennsylvania, Account No.
102-3474), within three business days after the Distribution Date, an
amount equal to such excess or (y) is less than $2 million, Rockwell will
pay to Rockwell Science Center, within three business days after the
Distribution Date, an amount equal to such deficit.
(B) Rockwell Science Center will pay to Rockwell (by
wire transfer to Rockwell's bank account at Mellon Bank, N.A.,
Pittsburgh, Pennsylvania, Account No. 102-3474), within three business
days after the Distribution Date, (x) all balances contained immediately
prior to the Time of Distribution in xxxxx cash accounts at U.S.
locations of the Rockwell Science Center Business, and (y) the dollar
value of travelers checks immediately prior to the Time of Distribution
at U.S. locations of the Rockwell Science Center Business.
(c) Rockwell Customer Payments. Each of Rockwell Xxxxxxx
and Xxxxxxxx Science Center will, and will cause their respective Subsidiaries
and Affiliates to, forward promptly to Rockwell (for the account of Rockwell or
the applicable Rockwell Subsidiary) any customer payments in respect of accounts
receivable constituting Rockwell Automation Assets received by Rockwell Xxxxxxx,
Xxxxxxxx Science Center or any of their respective Subsidiaries or Affiliates
after the Time of Distribution, whether received in lock boxes, via wire
transfer or otherwise. Such amounts will be forwarded by wire transfer (to
Rockwell's bank account at Mellon Bank, N.A., Pittsburgh, Pennsylvania, Account
No. 102-3474) in the case of customer payments received within thirty days after
the Distribution Date and by check in the case of customer payments received
thereafter.
42
47
(d) Rockwell Xxxxxxx Customer Payments. Each of Rockwell
and Rockwell Science Center will, and will cause their respective Subsidiaries
and Affiliates to, forward promptly to Rockwell Xxxxxxx (for the account of
Rockwell Xxxxxxx or the applicable Rockwell Xxxxxxx Subsidiary) any customer
payments in respect of accounts receivable constituting Rockwell Xxxxxxx Assets
received by Rockwell, Rockwell Science Center or any of their respective
Subsidiaries or Affiliates after the Time of Distribution, whether received in
lock boxes, via wire transfer or otherwise. Such amounts will be forwarded by
wire transfer in the case of customer payments received within thirty days after
the Distribution Date and by check in the case of customer payments received
thereafter.
(e) Rockwell Science Center Customer Payments. Each of
Rockwell and Rockwell Xxxxxxx will, and will cause their respective Subsidiaries
and Affiliates to, forward promptly to Rockwell Science Center (for the account
of Rockwell Science Center or the applicable Rockwell Science Center Subsidiary)
any customer payments in respect of accounts receivable constituting Rockwell
Science Center Assets received by Rockwell, Rockwell Xxxxxxx or any of their
respective Subsidiaries or Affiliates after the Time of Distribution, whether
received in lock boxes, via wire transfer or otherwise. Such amounts will be
forwarded by wire transfer in the case of customer payments received within
thirty days after the Distribution Date and by check in the case of customer
payments received thereafter.
(f) Funding of Outstanding Checks.
(i) The following subsections of this Section 3.05(f)
are intended to implement the parties' agreement that (A) Rockwell
Xxxxxxx or a Xxxxxxxx Xxxxxxx Subsidiary will be liable for payment of
checks relating to the Rockwell Xxxxxxx Business or the Rockwell Xxxxxxx
Liabilities that are outstanding immediately prior to the Time of
Distribution and (B) Rockwell Science Center or a Rockwell Science Center
Subsidiary will be liable for payment of checks relating to the Rockwell
Science Center Business or the Rockwell Science Center Liabilities that
are outstanding immediately prior to the Time of Distribution.
(ii) Rockwell Xxxxxxx or a Xxxxxxxx Xxxxxxx Subsidiary
will fund all amounts in respect of checks that are outstanding
immediately prior to the Time of Distribution and presented for payment
at or after the Time of Distribution in Rockwell Xxxxxxx U.S. Bank
Accounts or Rockwell Xxxxxxx Non-U.S. Bank Accounts. Rockwell Science
Center or a Rockwell Science Center Subsidiary will fund all amounts in
respect of checks that are outstanding immediately prior to the Time of
Distribution and presented for payment at or after the Time of
Distribution in Rockwell Science Center U.S. Bank Accounts or Rockwell
Science Center Non-U.S. Bank Accounts.
(iii) Rockwell or a Rockwell Subsidiary will fund all
amounts in respect of checks that are outstanding immediately prior to
the Time of Distribution and presented for payment at or after the Time
of Distribution in Rockwell Automation Retained Accounts. Within three
business days after Rockwell's request:
43
48
(A) Rockwell Xxxxxxx will reimburse Rockwell (by
wire transfer to Rockwell's bank account at Mellon Bank,
N.A., Pittsburgh, Pennsylvania, account number 102-3474),
for the account of Rockwell or the applicable Rockwell
Subsidiary, for all such amounts funded by Rockwell or a
Rockwell Subsidiary in respect of checks relating to the
Rockwell Xxxxxxx Business or the Rockwell Xxxxxxx
Liabilities that are outstanding immediately prior to the
Time of Distribution and presented for payment at or after
the Time of Distribution in Rockwell Automation Retained
Accounts;
(B) Rockwell Science Center will reimburse
Rockwell (by wire transfer to Rockwell's bank account at
Mellon Bank, N.A., Pittsburgh, Pennsylvania, account number
102-3474), for the account of Rockwell or the applicable
Rockwell Subsidiary, for all such amounts funded by
Rockwell or a Rockwell Subsidiary in respect of checks
relating to the Rockwell Science Center Business or the
Rockwell Science Center Liabilities that are outstanding
immediately prior to the Time of Distribution and presented
for payment at or after the Time of Distribution in
Rockwell Automation Retained Accounts.
(iv) No checks relating to the Rockwell Xxxxxxx Business
or the Rockwell Science Center Business will be issued on any
Rockwell Automation Retained Accounts at or after the Time of
Distribution.
SECTION 3.06 The Rockwell Xxxxxxx Board and the Rockwell
Science Center Board.
(a) Prior to the Time of Distribution, Rockwell and
Rockwell Xxxxxxx will take all actions which may be required to elect or
otherwise appoint the persons named in the Form 10 to constitute the board of
directors of Rockwell Xxxxxxx at the Time of Distribution.
(b) Prior to the Time of Distribution, Rockwell and
Rockwell Xxxxxxx will take all actions which may be required to elect or
otherwise appoint the persons set forth on Schedule 3.06(b) to constitute the
board of directors of Rockwell Science Center at the Time of Distribution.
SECTION 3.07 Resignations; Transfer of Stock Held as
Nominee.
(a) Rockwell will cause all of its employees and
directors and all of the employees and directors of each other member of the
Rockwell Automation Group to resign, not later than the Time of Distribution,
from all boards of directors or similar governing bodies of Rockwell Xxxxxxx or
any other member of the Rockwell Xxxxxxx Group [and of Rockwell Science Center
or any other member of the Rockwell Science Center Group] on which they serve,
and from all positions as officers of Rockwell Xxxxxxx or any other member of
the Rockwell Xxxxxxx Group [and of Rockwell Science Center or any other member
of the Rockwell Science Center Group] in which they serve, except as otherwise
specified on Schedule 3.07. Rockwell Xxxxxxx will cause all of its employees and
directors and all of the employees and directors of each other member of the
Rockwell Xxxxxxx Group to resign, not later than the Time of Distribution, from
44
49
all boards of directors or similar governing bodies of Rockwell or any other
member of the Rockwell Automation Group [and of Rockwell Science Center or any
other member of the Rockwell Science Center Group] on which they serve, and from
all positions as officers of Rockwell or any other member of the Rockwell
Automation Group [and of Rockwell Science Center or any other member of the
Rockwell Science Center Group] in which they serve, except as otherwise
specified on Schedule 3.07. [Rockwell Science Center will cause all of its
employees and directors and all of the employees and directors of each other
member of the Rockwell Science Center Group to resign, not later than the Time
of Distribution, from all boards of directors or similar governing bodies of
Rockwell or any other member of the Rockwell Automation Group and of Rockwell
Xxxxxxx or any other member of the Rockwell Xxxxxxx Group on which they serve,
and from all positions as officers of Rockwell or any other member of the
Rockwell Automation Group and of Rockwell Xxxxxxx or any other member of the
Rockwell Xxxxxxx Group in which they serve, except as otherwise specified on
Schedule 3.07.]
(b) Rockwell will cause each of its employees, and each
of the employees of the other members of the Rockwell Automation Group, who
holds stock or similar evidence of ownership of any Rockwell Xxxxxxx Group
entity or Rockwell Science Center Group entity as nominee for such entity
pursuant to the laws of the country in which such entity is located to transfer
such stock or similar evidence of ownership to the Person so designated by
Rockwell Xxxxxxx or Rockwell Science Center, as the case may be, to be such
nominee as of and after the Time of Distribution. Rockwell Xxxxxxx will cause
each of its employees, and each of the employees of the other members of the
Rockwell Xxxxxxx Group, who holds stock or similar evidence of ownership of any
Rockwell Automation Group entity or Rockwell Science Center Group entity as
nominee for such entity pursuant to the laws of the country in which such entity
is located to transfer such stock or similar evidence of ownership to the Person
so designated by Rockwell or Rockwell Science Center, as the case may be, to be
such nominee as of and after the Time of Distribution. Rockwell Science Center
will cause each of its employees, and each of the employees of the other members
of the Rockwell Science Center Group, who holds stock or similar evidence of
ownership of any Rockwell Automation Group entity or Rockwell Xxxxxxx Group
entity as nominee for such entity pursuant to the laws of the country in which
such entity is located to transfer such stock or similar evidence of ownership
to the Person so designated by Rockwell or Rockwell Xxxxxxx, as the case may be,
to be such nominee as of and after the Time of Distribution.
(c) Rockwell will cause each of its employees and each
of the employees of the other members of the Rockwell Automation Group to revoke
or withdraw their express written authority, if any, to act on behalf of any
Rockwell Xxxxxxx Group entity or Rockwell Science Center Group entity as an
agent or representative thereof after the Time of Distribution. Rockwell Xxxxxxx
will cause each of its employees and each of the employees of the other members
of the Rockwell Xxxxxxx Group to revoke or withdraw their express written
authority, if any, to act on behalf of any Rockwell Automation Group entity or
Rockwell Science Center Group entity as an agent or representative thereof after
the Time of Distribution. Rockwell Science Center will cause each of its
employees and each of the employees of the other members of the Rockwell Science
Center Group to revoke or withdraw their express written authority, if any, to
act on behalf of any Rockwell Automation Group entity or Rockwell Xxxxxxx Group
entity as an agent or representative thereof after the Time of Distribution.
45
50
SECTION 3.08 Rockwell Xxxxxxx Certificate of Incorporation
and By-Laws; Rights Plan. Prior to the Time of Distribution, (a) the Rockwell
Xxxxxxx Board will (i) approve the Certificate of Incorporation and will cause
the same to be filed with the Secretary of State of the State of Delaware and
(ii) adopt the By-Laws, and (b) Rockwell, as sole shareowner of Rockwell
Xxxxxxx, xxxx approve the Certificate of Incorporation. Prior to the Time of
Distribution, the Rockwell Xxxxxxx Board will adopt the Rights Plan and declare
a dividend of the Rights so that each share of Rockwell Xxxxxxx Common Stock
issued and outstanding as of the Time of Distribution will initially have one
Right attached thereto.
SECTION 3.09 Insurance.
(a) Coverage. Subject to the provisions of this Section
3.09, coverage of Rockwell Xxxxxxx, the Xxxxxxxx Xxxxxxx Subsidiaries, Rockwell
Science Center and the Rockwell Science Center Subsidiaries under all Policies
(other than the Current Aviation Products Liability Policy) shall cease as of
the Time of Distribution. From and after the Time of Distribution, Rockwell
Xxxxxxx, the Xxxxxxxx Xxxxxxx Subsidiaries, Rockwell Science Center and the
Rockwell Science Center Subsidiaries will be responsible for obtaining and
maintaining all insurance coverages in their own right. All Policies (other than
the Current Aviation Products Liability Policy) will constitute Rockwell
Automation Assets and will be retained by Rockwell and the Rockwell
Subsidiaries, together with all rights, benefits and privileges thereunder
(including the right to receive any and all return premiums with respect
thereto). The Current Aviation Products Liability Policy will constitute a
Rockwell Xxxxxxx Asset and will be transferred by Rockwell to Rockwell Xxxxxxx,
together with all rights, benefits and privileges thereunder (including the
right to receive any and all return premiums with respect thereto).
(b) Rights Under Shared Policies. From and after the
Time of Distribution, Rockwell Xxxxxxx, the Xxxxxxxx Xxxxxxx Subsidiaries,
Rockwell Science Center and the Rockwell Science Center Subsidiaries will have
no rights with respect to any Policies (other than the Current Aviation Products
Liability Policy), except that:
(i) Rockwell Xxxxxxx will have the right to assert
claims (and Rockwell will use reasonable best efforts to assist Rockwell
Xxxxxxx in asserting claims) for any loss, liability or damage with
respect to Rockwell Xxxxxxx Assets or Rockwell Xxxxxxx Liabilities under
Shared Policies with third-party insurers which are "occurrence basis"
Policies ("Occurrence Basis Policies") arising out of insured incidents
occurring from the date coverage thereunder first commenced until the
Time of Distribution to the extent that the terms and conditions of any
such Occurrence Basis Policies and agreements relating thereto so allow;
(ii) Rockwell Xxxxxxx will have the right to continue to
prosecute claims with respect to Rockwell Xxxxxxx Assets or Rockwell
Xxxxxxx Liabilities properly asserted with the insurer prior to the Time
of Distribution (and Rockwell will use reasonable best efforts to assist
Rockwell Xxxxxxx in connection therewith) under Shared Policies with
third-party insurers which are Policies written on a "claims made" basis
("Claims Made Policies") arising out of insured incidents occurring from
the date coverage thereunder
46
51
first commenced until the Time of Distribution to the extent that the
terms and conditions of any such Claims Made Policies and agreements
relating thereto so allow;
(iii) Rockwell Science Center will have the right to
assert claims (and Rockwell will use reasonable best efforts to assist
Rockwell Science Center in asserting claims) for any loss, liability or
damage with respect to Rockwell Science Center Assets or Rockwell Science
Center Liabilities under Occurrence Basis Policies arising out of insured
incidents occurring from the date coverage thereunder first commenced
until the Time of Distribution to the extent that the terms and
conditions of any such Occurrence Basis Policies and agreements relating
thereto so allow; and
(iv) Rockwell Science Center will have the right to
continue to prosecute claims with respect to Rockwell Science Center
Assets or Rockwell Science Center Liabilities properly asserted with the
insurer prior to the Time of Distribution (and Rockwell will use
reasonable best efforts to assist Rockwell Science Center in connection
therewith) under Claims Made Policies arising out of insured incidents
occurring from the date coverage thereunder first commenced until the
Time of Distribution to the extent that the terms and conditions of any
such Claims Made Policies and agreements relating thereto so allow;
provided, that in the case of each of clauses (i), (ii), (iii) and (iv) above,
(A) all of Rockwell's and each Rockwell Subsidiary's reasonable costs and
expenses incurred in connection with the foregoing are promptly paid by Rockwell
Xxxxxxx or Xxxxxxxx Science Center, as the case may be, (B) Rockwell and the
Rockwell Subsidiaries may, at any time, without liability or obligation to
Rockwell Xxxxxxx, any Xxxxxxxx Xxxxxxx Subsidiary, Rockwell Science Center or
any Rockwell Science Center Subsidiary (other than as set forth in Section
3.09(c)), amend, commute, terminate, buy-out, extinguish liability under or
otherwise modify any Occurrence Basis Policies or Claims Made Policies (and such
claims shall be subject to any such amendments, commutations, terminations,
buy-outs, extinguishments and modifications), (C) such claims will be subject to
(and recovery thereon will be reduced by the amount of) any applicable
deductibles, retentions, self-insurance provisions or any payment or
reimbursement obligations of Rockwell, any Rockwell Subsidiary or any Affiliate
of Rockwell or any Rockwell Subsidiary in respect thereof, and (D) such claims
will be subject to exhaustion of existing aggregate limits. Rockwell's
obligation to use reasonable best efforts to assist Rockwell Xxxxxxx and
Rockwell Science Center in asserting claims under Occurrence Basis Policies will
include using reasonable best efforts in assisting Rockwell Xxxxxxx and Rockwell
Science Center to establish its right to coverage under Occurrence Basis
Policies (so long as all of Rockwell's costs and expenses in connection
therewith are promptly paid by Rockwell Xxxxxxx or Rockwell Science Center, as
the case may be). None of Rockwell or the Rockwell Subsidiaries will bear any
Liability for the failure of an insurer to pay any claim under any Occurrence
Basis Policy or Claims Made Policy.
(c) Rockwell Actions. In the event that after the Time
of Distribution Rockwell or any Rockwell Subsidiary proposes to amend, commute,
terminate, buy-out, extinguish liability under or otherwise modify any
Occurrence Basis Policies or Claims Made Policies under which Rockwell Xxxxxxx
or Rockwell Science Center has rights to assert claims
47
52
pursuant to Section 3.09(b) in a manner that would adversely affect any such
rights of Rockwell Xxxxxxx or Rockwell Science Center, (i) Rockwell will give
Rockwell Xxxxxxx and/or Rockwell Science Center, as the case may be, prior
notice thereof and consult with Rockwell Xxxxxxx and/or Rockwell Science Center,
as the case may be, with respect to such action (it being understood that the
decision to take any such action will be in the sole discretion of Rockwell) and
(ii) Rockwell will pay to Rockwell Xxxxxxx and/or Rockwell Science Center, as
the case may be, its equitable share (which shall be determined by Rockwell
based on the amount of premiums paid by or allocated to the Rockwell Xxxxxxx
Business or the Rockwell Science Center Business, as the case may be, in respect
of the applicable Shared Policy) of any net proceeds actually received by
Rockwell from the insurer of the applicable Shared Policy as a result of such
action by Rockwell (after deducting Rockwell's reasonable costs and expenses
incurred in connection with such action).
(d) Rights Under the Current Aviation Products Liability
Policy. From and after the Time of Distribution, Rockwell, the Rockwell
Subsidiaries, Rockwell Science Center and the Rockwell Science Center
Subsidiaries will have no rights with respect to the Current Aviation Products
Liability Policy, except that:
(i) Rockwell will have the right to assert claims (and
Rockwell Xxxxxxx will use reasonable best efforts to assist Rockwell in
asserting claims) for any loss, liability or damage with respect to
Rockwell Automation Assets or Rockwell Automation Liabilities under the
Current Aviation Products Liability Policy arising out of insured
incidents occurring from the date coverage thereunder first commenced
until the Time of Distribution to the extent that the terms and
conditions of the Current Aviation Products Liability Policy and
agreements relating thereto so allow;
(ii) Rockwell will have the right to continue to
prosecute claims with respect to Rockwell Automation Assets or Rockwell
Automation Liabilities properly asserted with the insurer prior to the
Time of Distribution (and Rockwell Xxxxxxx will use reasonable best
efforts to assist Rockwell in connection therewith) under the Current
Aviation Products Liability Policy arising out of insured incidents
occurring from the date coverage thereunder first commenced until the
Time of Distribution to the extent that the terms and conditions of the
Current Aviation Products Liability Policy and agreements relating
thereto so allow;
(iii) Rockwell Science Center will have the right to
assert claims (and Rockwell Xxxxxxx will use reasonable best efforts to
assist Rockwell Science Center in asserting claims) for any loss,
liability or damage with respect to Rockwell Science Center Assets or
Rockwell Science Center Liabilities under the Current Aviation Products
Liability Policy arising out of insured incidents occurring from the date
coverage thereunder first commenced until the Time of Distribution to the
extent that the terms and conditions of the Current Aviation Products
Liability Policy and agreements relating thereto so allow; and
(iv) Rockwell Science Center will have the right to
continue to prosecute claims with respect to Rockwell Science Center
Assets or Rockwell Science Center
48
53
Liabilities properly asserted with the insurer prior to the Time of
Distribution (and Rockwell Xxxxxxx will use reasonable best efforts to
assist Rockwell Science Center in connection therewith) under the Current
Aviation Products Liability Policy arising out of insured incidents
occurring from the date coverage thereunder first commenced until the
Time of Distribution to the extent that the terms and conditions of the
Current Aviation Products Liability Policy and agreements relating
thereto so allow;
provided, that in the case of each of clauses (i), (ii), (iii) and (iv) above,
(A) all of Rockwell Xxxxxxx' and each Rockwell Xxxxxxx Subsidiary's reasonable
costs and expenses incurred in connection with the foregoing are promptly paid
by Rockwell or Rockwell Science Center, as the case may be, (B) Rockwell Xxxxxxx
and the Rockwell Xxxxxxx Subsidiaries may, at any time, without liability or
obligation to Rockwell, any Rockwell Subsidiary, Rockwell Science Center or any
Rockwell Science Center Subsidiary (other than as set forth in Section 3.09(e)),
amend, commute, terminate, buy-out, extinguish liability under or otherwise
modify the Current Aviation Products Liability Policy (and such claims shall be
subject to any such amendments, commutations, terminations, buy-outs,
extinguishments and modifications), (C) such claims will be subject to (and
recovery thereon will be reduced by the amount of) any applicable deductibles,
retentions, self-insurance provisions or any payment or reimbursement
obligations of Rockwell Xxxxxxx, any Xxxxxxxx Xxxxxxx Subsidiary or any
Affiliate of Rockwell Xxxxxxx or any Rockwell Xxxxxxx Subsidiary in respect
thereof, and (D) such claims will be subject to exhaustion of existing aggregate
limits. Rockwell Xxxxxxx' obligation to use reasonable best efforts to assist
Rockwell and Rockwell Science Center in asserting claims under the Current
Aviation Products Liability Policy will include using reasonable best efforts in
assisting Rockwell and Rockwell Science Center to establish its right to
coverage under the Current Aviation Products Liability Policy (so long as all of
Rockwell Xxxxxxx' costs and expenses in connection therewith are promptly paid
by Rockwell or Rockwell Science Center, as the case may be). None of Rockwell
Xxxxxxx or the Rockwell Xxxxxxx Subsidiaries will bear any Liability for the
failure of the insurer to pay any claim under the Current Aviation Products
Liability Policy.
(e) Rockwell Xxxxxxx Actions. In the event that after
the Time of Distribution Rockwell Xxxxxxx or any Rockwell Xxxxxxx Subsidiary
proposes to amend, commute, terminate, buy-out, extinguish liability under or
otherwise modify the Current Aviation Products Liability Policy in a manner that
would adversely affect any rights of Rockwell or Rockwell Science Center in
respect thereof, (i) Rockwell Xxxxxxx will give Rockwell and/or Rockwell Science
Center , as the case may be, prior notice thereof and consult with Rockwell
and/or Rockwell Science Center, as the case may be, with respect to such action
(it being understood that the decision to take any such action will be in the
sole discretion of Rockwell Xxxxxxx) and (ii) Rockwell Xxxxxxx will pay to
Rockwell and/or Rockwell Science Center, as the case may be, its equitable share
(which shall be determined by Rockwell Xxxxxxx based on the amount of premiums
paid by or allocated to the Rockwell Automation Business or the Rockwell Science
Center Business, as the case may be, in respect of the Current Aviation Products
Liability Policy) of any net proceeds actually received by Rockwell Xxxxxxx from
the insurer of the Current Aviation Products Liability Policy as a result of
such action by Rockwell Xxxxxxx (after deducting Rockwell Xxxxxxx' reasonable
costs and expenses incurred in connection with such action).
49
54
(f) Administration. From and after the Time of
Distribution:
(i) Rockwell or a Rockwell Subsidiary, as appropriate,
will be responsible for the Claims Administration with respect to claims
of Rockwell and the Rockwell Subsidiaries under Occurrence Basis
Policies, Claims Made Policies and, to the extent claims are permitted
under Section 3.09(d), the Current Aviation Products Liability Policy;
(ii) Rockwell Xxxxxxx or a Xxxxxxxx Xxxxxxx Subsidiary,
as appropriate, will be responsible for the Claims Administration with
respect to the claims of Rockwell Xxxxxxx and the Rockwell Xxxxxxx
Subsidiaries under Occurrence Basis Policies and Claims Made Policies
that are permitted under Section 3.09(b) and claims of Rockwell Xxxxxxx
and the Rockwell Xxxxxxx Subsidiaries under the Current Aviation Products
Liability Policy; and
(iii) Rockwell Science Center or a Rockwell Science Center
Subsidiary, as appropriate, will be responsible for the Claims
Administration with respect to the claims of Rockwell Science Center and
the Rockwell Science Center Subsidiaries under Occurrence Basis Policies,
Claims Made Policies and the Current Aviation Products Liability Policy
that are permitted under Section 3.09(b) or 3.09(d).
(g) Insurance Premiums.
(i) Rockwell will pay all premiums
(retrospectively-rated or otherwise) as required under the terms and
conditions of the respective Shared Policies in respect of periods prior
to the Time of Distribution, whereupon (A) Rockwell Xxxxxxx will, upon
request of Rockwell, forthwith reimburse Rockwell for that portion of
such premiums paid by Rockwell as are reasonably determined by Rockwell
to be attributable to the Rockwell Xxxxxxx Business and (B) Rockwell
Science Center will, upon request of Rockwell, forthwith reimburse
Rockwell for that portion of such premiums paid by Rockwell as are
reasonably determined by Rockwell to be attributable to the Rockwell
Science Center Business.
(ii) Rockwell Xxxxxxx will pay all premiums
(retrospectively-rated or otherwise) as required under the terms and
conditions of the Current Aviation Products Liability Policy in respect
of periods prior to the Time of Distribution, whereupon (A) Rockwell
will, upon request of Rockwell Xxxxxxx, forthwith reimburse Rockwell
Xxxxxxx for that portion of such premiums paid by Rockwell Xxxxxxx as are
reasonably determined by Rockwell Xxxxxxx to be attributable to the
Rockwell Automation Business and (B) Rockwell Science Center will, upon
request of Rockwell, forthwith reimburse Rockwell Xxxxxxx for that
portion of such premiums paid by Rockwell Xxxxxxx as are reasonably
determined by Rockwell Xxxxxxx to be attributable to the Rockwell Science
Center Business.
(h) Agreement for Waiver of Conflict and Shared Defense.
In the event that an Occurrence Basis Policy, a Claims Made Policy or the
Current Aviation Products Liability Policy provides coverage for two or more of
(i) Rockwell and/or a Rockwell Subsidiary,
50
55
(ii) Rockwell Xxxxxxx and/or a Rockwell Xxxxxxx Subsidiary and (iii) Rockwell
Science Center and/or a Rockwell Science Center Subsidiary relating to the same
occurrence, Rockwell, Rockwell Xxxxxxx and Rockwell Science Center, as
applicable, agree to defend jointly and to waive any conflict of interest
necessary to the conduct of that joint defense. Nothing in this Section 3.09(f)
will be construed to limit or otherwise alter in any way the indemnity
obligations of the parties to this Agreement, including those created by this
Agreement, by operation of law or otherwise.
(i) Directors' and Officers' Insurance. Rockwell will
use its reasonable best efforts to cause the persons currently serving as
directors and/or officers of Rockwell or any Subsidiary of Rockwell who will be,
effective as of the Time of Distribution, directors and/or officers of Rockwell
Xxxxxxx, any Xxxxxxxx Xxxxxxx Subsidiary, Rockwell Science Center or any
Rockwell Science Center Subsidiary to be covered for a period of six years from
the Time of Distribution with respect to claims arising from facts or events
which occurred prior to the Time of Distribution by the directors' and officers'
liability insurance policies maintained by Rockwell during such six-year period
following the Time of Distribution for all persons who served as directors
and/or officers of Rockwell or any Rockwell Subsidiary prior to the Time of
Distribution with respect to claims arising from facts or events which occurred
prior to the Time of Distribution.
SECTION 3.10 Use of Names, Trademarks, etc.
(a) From and after the Time of Distribution, subject to
Sections 3.10(b), 3.10(c) and 3.10(d), Rockwell will own all rights of Rockwell
or any of its Subsidiaries (including members of the Rockwell Xxxxxxx Group and
members of the Rockwell Science Center Group) in, and to the use of, the names
"Rockwell", "Rockwell International", "Rockwell Xxxxxxx", "Xxxxxxxx Science
Center" and "Rockwell Scientific Company" and all corporate symbols and logos
related thereto and any name or xxxx which includes the words "Rockwell" or
"Rockwell International" and all derivatives thereof and any other name, xxxx or
symbol connoting "Rockwell" or which constitutes a formative thereof. From and
after the Time of Distribution, except as permitted in Sections 3.10(b), 3.10(c)
and 3.10(d), the Rockwell Xxxxxxx Group and the Rockwell Science Center Group
will not use or have any rights to the names, trademarks, trade names, domain
names and service marks "Rockwell", "Rockwell International", "Rockwell
Xxxxxxx", "Xxxxxxxx Science Center" or "Rockwell Scientific Company" or any
corporate symbol or logo related thereto or any name or xxxx which includes the
words "Rockwell" or "Rockwell International" or any derivative thereof or any
name or xxxx confusingly similar thereto, or any special script, type font,
form, style, logo, design, device, trade dress or symbol which contains,
represents or evokes the trademark, trade name or service xxxx "Rockwell" or
"Rockwell International" or any derivative thereof or any name or xxxx
confusingly similar thereto. From and after the Time of Distribution the
Rockwell Xxxxxxx Group will not hold itself out as having any affiliation with
the Rockwell Automation Group. Prior to or as soon as practicable following the
Time of Distribution (but in no event later than one year after the Distribution
Date) (i) Rockwell Xxxxxxx will change the name of any Rockwell Xxxxxxx
Subsidiary to eliminate therefrom the name "Rockwell" other than in the combined
format "Rockwell Xxxxxxx" and (ii) Rockwell Science Center will change the name
of any Rockwell Science Center Subsidiary to eliminate therefrom the name
"Rockwell" other than in the
51
56
combined format "Rockwell Science Center", "Rockwell Scientific" or "Rockwell
Scientific Company".
(b) (i) Rockwell hereby grants to Rockwell Xxxxxxx an
exclusive, perpetual, non-transferable (other than by way of sublicenses
to members of the Rockwell Xxxxxxx Group) license to utilize without
obligation to pay royalties to Rockwell the names, trademarks, trade
names, domain names and service marks (A) "Rockwell", but only in the
combined format "Rockwell Xxxxxxx", and (B) "Rockwell Xxxxxxx"
(collectively, the "Rockwell Xxxxxxx Marks") in connection with
businesses of the Rockwell Xxxxxxx Group, other than researching,
developing, designing, engineering, manufacturing, building, selling,
distributing, installing, modifying, repairing, servicing or supporting
Automation Products. Unless and until the license granted under this
Section 3.10(b) is terminated, Rockwell will not use, nor grant a license
to any third party to use, the name, trademark, trade name, domain name
or service xxxx "Xxxxxxxx Xxxxxxx".
(ii) As a condition to the license granted by this
Section 3.10(b), Rockwell Xxxxxxx will use the Rockwell Xxxxxxx Marks (A)
in connection with goods and services having a level of quality at least
as high as that established by the Rockwell Xxxxxxx Business for similar
goods or services made, sold or offered for sale prior to the
Distribution Date and (B) in compliance with all applicable laws and
regulations.
(iii) Rockwell will have the right to exercise quality
control over Rockwell Xxxxxxx' and any permitted sublicensee's
presentation or use of the Rockwell Xxxxxxx Marks to that degree
reasonably necessary, in the opinion of Rockwell, to maintain the
validity and enforceability of the Rockwell Xxxxxxx Marks and the name,
trademark, trade name or service xxxx "Rockwell" and to protect the
goodwill associated with any of the foregoing. Rockwell Xxxxxxx will,
upon request by Rockwell, submit to Rockwell materials of the Rockwell
Xxxxxxx Group bearing the Rockwell Xxxxxxx Marks as Rockwell may
reasonably require to ensure Rockwell Xxxxxxx' and any permitted
sublicensee's compliance with the obligations set forth in this Section
3.10(b).
(iv) (A) Rockwell may terminate the license granted under
this Section 3.10(b) in the event of a material breach of this Section
3.10(b) by any member of the Rockwell Xxxxxxx Group that has not been
cured within sixty days (or ninety days, if substantial progress is being
made at the end of such sixty day period) of written notice by Rockwell
to Rockwell Xxxxxxx.
(B) The license granted under this Section 3.10(b)
will terminate automatically on the 180th day after a Rockwell
Xxxxxxx Change in Control.
(v) From and after the Time of Distribution, subject to Section
3.10(f), Rockwell Xxxxxxx will have all rights of Rockwell or any of its
Subsidiaries (including members of the Rockwell Xxxxxxx Group and members
of the Rockwell Science Center Group) in, and to the use of, the name
"Xxxxxxx" (other than in the combined format
52
57
"Rockwell Xxxxxxx") and all corporate symbols and logos related thereto
and all derivatives thereof.
(c) (i) Rockwell hereby grants to Rockwell Science Center an
exclusive, perpetual, non-transferable (other than by way of sublicenses
to members of the Rockwell Science Center Group) license to utilize
without obligation to pay royalties to Rockwell the names, trademarks,
trade names, domain names and service marks (A) "Rockwell", but only in
the combined format "Rockwell Science Center", "Rockwell Scientific" or
"Rockwell Scientific Company" and (B) "Rockwell Science Center",
"Rockwell Scientific" and "Rockwell Scientific Company" (collectively,
the "Rockwell Science Center Marks") in connection with the Rockwell
Science Center Business as it exists on the Distribution Date. Unless and
until the license granted under this Section 3.10(c) is terminated,
Rockwell will not use, nor grant a license to any third party to use, the
Rockwell Science Center Marks.
(ii) As a condition to the license granted by this Section
3.10(c), Rockwell Science Center will use the Rockwell Science Center
Marks (A) in connection with goods and services having a level of quality
at least as high as that established by the Rockwell Science Center
Business for similar goods or services made, sold or offered for sale
prior to the Distribution Date and (B) in compliance with all applicable
laws and regulations.
(iii) Rockwell will have the right to exercise quality control
over Rockwell Science Center's and any permitted sublicensee's
presentation or use of the Rockwell Science Center Marks to that degree
reasonably necessary, in the opinion of Rockwell, to maintain the
validity and enforceability of the Rockwell Science Center Marks and the
name, trademark, trade name or service xxxx "Rockwell" and to protect the
goodwill associated with any of the foregoing. Rockwell Science Center
will, upon request by Rockwell, submit to Rockwell materials of the
Rockwell Science Center Group bearing the Rockwell Science Center Marks
as Rockwell may reasonably require to ensure Rockwell Science Center's
and any permitted sublicensee's compliance with the obligations set forth
in this Section 3.10(c).
(iv) (A) Rockwell may terminate the license granted under this
Section 3.10(c) in the event of a material breach of this Section 3.10(c)
by any member of the Rockwell Science Center Group that has not been
cured within sixty days (or ninety days, if substantial progress is being
made at the end of such sixty day period) of written notice by Rockwell
to Rockwell Science Center.
(B) The license granted under this Section 3.10(c)
will terminate automatically on the earlier of (x) the 180th day after
the aggregate equity ownership interest of Rockwell and Rockwell Xxxxxxx
in Rockwell Science Center falls below 50% or (y) the 180th day after a
Rockwell Xxxxxxx Change in Control or (z) the date that Rockwell and
Rockwell Xxxxxxx, when acting in concert, lack the ability to control
management of Rockwell Science Center.
53
58
(d) In addition to, and without limiting the licenses
granted in Section 3.10(b) and Section 3.10(c), Rockwell hereby grants to
each of Rockwell Xxxxxxx and Rockwell Science Center a non-exclusive,
non-transferable (other than by way of sublicenses to members of the
Rockwell Xxxxxxx Group or the Rockwell Science Center Group, as the case
may be) license to utilize without obligation to pay royalties to
Rockwell the names, trademarks or trade names "Rockwell" and "Rockwell
International" and any corporate symbol or logo related thereto in
connection with stationery, supplies, labels, catalogs, vehicles, signs
and products of the Rockwell Xxxxxxx Business or the Rockwell Science
Center Business, as the case may be, described in paragraphs (i) through
(vi) of this Section 3.10(d), subject to the terms and conditions of this
Section 3.10(d) and Section 3.10(e), in each case in the same manner and
to the same extent as such names, trademarks, trade names, corporate
symbols or logos were used by the Rockwell Xxxxxxx Business or the
Rockwell Science Center Business, as the case may be, at any time within
the five year period preceding the Distribution:
(i) All stationery, invoices, purchase orders and other
similar documents of a transactional nature, business cards,
outside forms such as packing lists, labels, and cartons, forms
for internal use only and product literature constituting Rockwell
Xxxxxxx Assets or Rockwell Science Center Assets, as the case may
be, as of the Time of Distribution may be used for a period of one
year following the Distribution Date or until the supply is
exhausted, whichever is the first to occur.
(ii) All vehicles constituting Rockwell Xxxxxxx Assets or
Rockwell Science Center Assets, as the case may be, as of the Time
of Distribution may continue to be used without re-marking (except
as to legally required permit numbers, license numbers, etc.) for
a period not to exceed (A) twelve months following the
Distribution Date or (B) the date of disposition of the vehicle,
whichever is the first to occur.
(iii) Within six months following the Distribution Date,
Rockwell Xxxxxxx and Rockwell Science Center, as the case may be,
will cause to be removed from display at all owned and leased
facilities constituting Rockwell Xxxxxxx Assets or Rockwell
Science Center Assets, respectively, all demountable displays
which contain the names, trademarks or trade names "Rockwell" or
"Rockwell International" (other than, (x) in the case of Rockwell
Xxxxxxx, in the combined format "Rockwell Xxxxxxx" and (y) in the
case of Rockwell Science Center, in the combined format "Rockwell
Science Center" or "Rockwell Scientific Company") or any corporate
symbol related thereto and Rockwell Xxxxxxx and Rockwell Science
Center each will remove, or will cause the removal of, all signs
displaying any such name, trademark, trade name or corporate
symbol at all such facilities (A) located in the United States, no
later than six months following the Distribution Date and (B)
located outside the United States, no later than twelve months
following the Distribution Date.
(iv) Products of the Rockwell Xxxxxxx Business and the
Rockwell Science Center Business may have applied thereto the
names, trademarks or trade names "Rockwell" or "Rockwell
International" or any Rockwell corporate symbol or logo related
thereto for a period of six months after the Distribution.
54
59
(v) Products of the Rockwell Xxxxxxx Business and the
Rockwell Science Center Business in finished goods inventory and
work in process (to the extent the same bear the names, trademarks
or trade names "Rockwell" or "Rockwell International" at the Time
of Distribution or have any such trademark or trade name applied
to them in accordance with paragraph (v) above) may be disposed of
without re-marking.
(e) (i) Apart from the rights granted under Section
3.10(b), Section 3.10(c) and Section 3.10(d), no member of the
Rockwell Xxxxxxx Group or the Rockwell Science Center Group shall
have any right, title or interest in, or to the use of, the
Rockwell Xxxxxxx Marks, the Rockwell Science Center Marks or the
names, trademarks or trade names "Rockwell" or "Rockwell
International" or any corporate symbol or logo related thereto,
either alone or in combination with any other word, name, symbol,
device, trademarks, or any combination thereof. Anything contained
herein to the contrary notwithstanding, except as expressly
permitted by Section 3.10(b), Section 3.10(c) and Section 3.10(d),
in no event will any member of the Rockwell Xxxxxxx Group or any
member of the Rockwell Science Center Group utilize the Rockwell
Xxxxxxx Marks, the Rockwell Science Center Marks, as the case may
be, or the names, trademarks, trade names or domain names
"Rockwell" or "Rockwell International" or any corporate symbol or
logo related thereto as a component of a company or trade name.
Rockwell Xxxxxxx and Rockwell Science Center each will not, and
will cause each other member of the Rockwell Xxxxxxx Group and the
Rockwell Science Center Group, as the case may be, not to,
challenge or contest the validity of such names, trademarks, trade
names, domain names, corporate symbols or logos, the registration
thereof or the ownership thereof by the Rockwell Automation Group.
Rockwell Xxxxxxx and Rockwell Science Center each will not, and
will cause each other member of the Rockwell Xxxxxxx Group and the
Rockwell Science Center Group, as the case may be, not to, apply
anywhere at any time for any registration as owner or exclusive
licensee of such names, trademarks, trade names, domain names,
corporate symbols or logos. If, notwithstanding the foregoing, any
member of the Rockwell Xxxxxxx Group or the Rockwell Science
Center Group develops, adopts or acquires, directly or indirectly,
any right, title or interest in, or to the use of, any such names,
trademarks, trade names, domain names, corporate symbols or logos
in any jurisdiction, or any goodwill incident thereto, Rockwell
Xxxxxxx or Rockwell Science Center, as the case may be, will, upon
the request of Rockwell, and for a nominal consideration of one
dollar, assign or cause to be assigned to Rockwell or any designee
of Rockwell, all right, title and interest in, and to the use of,
such names, trademarks, trade names, domain names, corporate
symbols or logos in any and all jurisdictions, together with any
goodwill incident thereto.
(ii) If the laws of any country require that any xxxx
subject to Section 3.10(b), Section 3.10(c) or Section 3.10(d) or
the right of any member of the Rockwell Xxxxxxx Group or the
Rockwell Science Center Group to use any xxxx as permitted by
Section 3.10(b), Section 3.10(c) or Section 3.10(d) be registered
in order to fully protect the Rockwell Automation Group, then
Rockwell Xxxxxxx or Rockwell Science Center, as the case may be,
and Rockwell will cooperate in constituting such member of the
Rockwell Xxxxxxx Group or the Rockwell Science Center Group, as
the case may be, as a registered user (or its equivalent) in each
of the countries in which such registration is
55
60
necessary. Any expenses for registering such xxxx or constituting such member
of the Rockwell Xxxxxxx Group or the Rockwell Science Center Group, as the
case may be, as a registered user in any country shall be borne by Rockwell
Xxxxxxx or Rockwell Science Center, as the case may be. Any registration of
such member of the Rockwell Xxxxxxx Group or the Rockwell Science Center
Group, as the case may be, as a registered user of any xxxx hereunder shall be
expunged on termination of the period of permitted use under this Agreement or
upon a breach or threatened breach by any member of the Rockwell Xxxxxxx Group
or the Rockwell Science Center Group, as the case may be, of the terms of this
Section 3.10 and Rockwell Xxxxxxx or Rockwell Science Center, as the case may
be, will, upon request of Rockwell, take all necessary steps to cause such
registration to be so expunged upon such termination or breach or threatened
breach. In addition, (A) Rockwell Xxxxxxx hereby constitutes and appoints
Rockwell the true and lawful attorney of Rockwell Xxxxxxx with full power of
substitution, in the name and on behalf of Rockwell Xxxxxxx (and at the cost
of Rockwell Xxxxxxx), to take all necessary steps to cause such registration
to be so expunged upon such termination or breach or threatened breach by a
member of the Rockwell Xxxxxxx Group and (B) Rockwell Science Center hereby
constitutes and appoints Rockwell the true and lawful attorney of Rockwell
Science Center with full power of substitution in the name and on behalf of
Rockwell Science Center (and at the cost of Rockwell Science Center), to take
all necessary steps to cause such registration to be so expunged upon such
termination or breach or threatened breach by a member of the Rockwell Science
Center Group.
(iii) Rockwell will have the right to terminate the license granted in
Section 3.10(b) and/or Section 3.10(d) (with respect to Rockwell Xxxxxxx) in
the event of a material breach of this Section 3.10(e) by any member of the
Rockwell Xxxxxxx Group that has not been cured within sixty days (or ninety
days, if substantial progress is being made at the end of such sixty day
period) after written notice by Rockwell to Rockwell Xxxxxxx. Xxxxxxxx will
have the right to terminate the license granted in Section 3.10(c) and/or
Section 3.10(d) (with respect to Rockwell Science Center) in the event of a
material breach of this Section 3.10(e) by any member of the Rockwell Science
Center Group that has not been cured within sixty days (or ninety days, if
substantial progress is being made at the end of such sixty day period) after
written notice by Rockwell to Rockwell Science Center.
(iv) Rockwell Xxxxxxx hereby constitutes and appoints Rockwell the true
and lawful attorney of Rockwell Xxxxxxx and its Subsidiaries to act as their
attorney-in-fact to execute any documents and to take all necessary steps to
cause Rockwell Xxxxxxx and its Subsidiaries to perform any of their
obligations set forth in this Section 3.10(e), provided however, that Rockwell
will provide Rockwell Xxxxxxx sixty days written notice prior to executing
such documents or commencing such steps. Rockwell Science Center hereby
constitutes and appoints Rockwell the true and lawful attorney of Rockwell
Science Center and its Subsidiaries to act as their attorney-in-fact to
execute any documents and to take all necessary steps to cause Rockwell
Science Center and its Subsidiaries to perform any of their obligations set
forth in this Section 3.10(e), provided however, that Rockwell will provide
Rockwell Science Center sixty days written notice prior to executing such
documents or commencing such steps.
56
61
(f) From and after the Distribution Date, the Rockwell
Automation Group will not hold itself out as having an affiliation with the
Rockwell Xxxxxxx Group.
SECTION 3.11 Consents. Prior to and after the Distribution
Date, Rockwell, Rockwell Collins and Rockwell Science Center will, and will
cause their respective Subsidiaries to, use their reasonable best efforts (as
requested by any other party) to obtain, or to cause to be obtained, all
Consents and to resolve all impracticalities of assignments or transfers
necessary for the transfer of all Assets, Subsidiaries and Liabilities
contemplated to be transferred pursuant to this Article III; provided,
however, that none of Rockwell, Rockwell Collins or Rockwell Science Center or
their respective Subsidiaries shall be obligated to pay any consideration or
offer or grant any financial accommodation in connection therewith. Anything
contained herein to the contrary notwithstanding, this Agreement shall not
constitute an agreement to assign any Contract, License or Asset if an
assignment or attempted assignment of the same without the Consent of any
other party or parties thereto or other required Consent would constitute a
breach thereof or of any applicable law or in any way impair the rights of any
member of the Rockwell Automation Group, the Rockwell Collins Group or the
Rockwell Science Center Group, as the case may be, thereunder. If any such
Consent is not obtained or if an attempted assignment would be ineffective or
would impair any member of a Group's rights under any such Contract, License
or Asset so that the contemplated assignee hereunder (the "Recipient Party")
would not receive all such rights, then (x) the party contemplated hereunder
to assign such Contract, License or Asset (the "Assigning Party") will use
reasonable best efforts (it being understood that such efforts shall not
include any requirement of the Assigning Party to pay any consideration or
offer or grant any financial accommodation) to provide or cause to be provided
to the Recipient Party, to the extent permitted by law, the benefits of any
such Contract, License or Asset and the Assigning Party will promptly pay or
cause to be paid to the Recipient Party when received all moneys and
properties received by the Assigning Party with respect to any such Contract,
License or Asset and (y) the Recipient Party will pay, perform and discharge
on behalf of the Assigning Party all of the Assigning Party's Liabilities
thereunder in a timely manner and in accordance with the terms thereof. In
addition, the Assigning Party will take such other actions (at the Recipient
Party's expense) as may reasonably be requested by the Recipient Party in
order to place the Recipient Party, insofar as reasonably possible, in the
same position as if such Contract, License or Asset had been transferred as
contemplated hereby and so all the benefits and burdens relating thereto,
including possession, use, risk of loss, potential for gain and dominion,
control and command, shall inure to the Recipient Party. If and when such
Consents are obtained, the transfer of the applicable Contract, License or
Asset shall be effected as promptly following the Time of Distribution as
shall be practicable in accordance with the terms of this Agreement. To the
extent that any transfers and assumptions contemplated by this Article III
shall not have been consummated on or prior to the Time of Distribution, the
parties shall cooperate to effect such transfers as promptly following the
Time of Distribution as shall be practicable, it nonetheless being agreed and
understood by the parties that no party shall be liable in any manner to any
other party for any failure of any of the transfers contemplated by this
Article III to be consummated prior to the Time of Distribution.
57
62
SECTION 3.12 Intellectual Property.
(a) Effective immediately after the Time of Distribution,
Rockwell, on behalf of itself and the Rockwell Subsidiaries, hereby grants to
Rockwell Science Center a royalty-free, world-wide, irrevocable, non-exclusive
license under all Intellectual Property (excluding trademarks, trade names,
domain names, service marks, trade dress or any other form of trade identity)
which constitutes Rockwell Automation Assets and which immediately after the
Time of Distribution is either owned by the Rockwell Automation Group or under
which the Rockwell Automation Group has a right to license without the payment
of royalties to a third party to make, have made, use, import, sell or
otherwise dispose of products, or to practice any process in connection
therewith, in the conduct of the Rockwell Science Center Business (as such
business is being conducted at the Time of Distribution); said non-exclusive
license being transferable only by sublicenses (to the extent permitted in the
case of any restricted grant to Rockwell or a Rockwell Subsidiary, as a
licensee) to members of the Rockwell Science Center Group and in connection
with the sale or other disposition of all or any part of the Rockwell Science
Center Business to which such Intellectual Property relates. To the extent
that the Rockwell Science Center Group does not have copies of any information
or materials relating to Intellectual Property licensed under this Section
3.12(a) that are essential to exercising such rights, Rockwell will, upon
reasonable request, supply to the Rockwell Science Center Group copies of any
such information or materials relating to such Intellectual Property. In no
event shall Rockwell Science Center utilize the subject matter of any
Intellectual Property licensed under this Section 3.12(a) in a manner that is
competitive with the Rockwell Automation Business as such business is being
conducted at the Time of Distribution, or any related extensions or expansions
thereof, except that Rockwell Science Center shall be able to continue to
utilize the subject matter of such Intellectual Property in a manner that is
competitive with the Rockwell Automation Business in any related extensions or
expansions of the Rockwell Automation Business to the extent (but only to the
extent) such Intellectual Property was utilized by Rockwell Science Center
prior to such extensions or expansions of the Rockwell Automation Business.
(b) Effective immediately after the Time of Distribution,
Rockwell Science Center, on behalf of itself and the Rockwell Science Center
Subsidiaries, hereby grants to Rockwell a royalty-free, world-wide,
irrevocable, non-exclusive license under all Intellectual Property (excluding
trademarks, trade names, domain names, service marks, trade dress or any other
form of trade identity) which constitutes Rockwell Science Center Assets and
which immediately after the Time of Distribution is either owned by the
Rockwell Science Center Group or under which the Rockwell Science Center Group
has a right to license without the payment of royalties to a third party to
make, have made, use, import, sell or otherwise dispose of products, or to
practice any process in connection therewith, in the conduct of the Rockwell
Automation Business (as such business is being conducted at the Time of
Distribution, or any related extensions or expansions thereof); said
non-exclusive license being transferable only by sublicenses (to the extent
permitted in the case of any restricted grant to Rockwell Science Center or a
Rockwell Science Center Subsidiary, as a licensee) to members of the Rockwell
Automation Group and in connection with the sale or other disposition of all
or any part of the Rockwell Automation Business to which such Intellectual
Property relates. To the extent that the Rockwell Automation Group does not
have copies of any information or materials relating to
58
63
Intellectual Property licensed under this Section 3.12(b) that are essential
to exercising such rights, Rockwell Science Center will, upon reasonable
request, supply to the Rockwell Automation Group copies of any such
information or materials relating to such Intellectual Property.
(c) Effective immediately after the Time of Distribution,
Rockwell Collins, on behalf of itself and the Rockwell Collins Subsidiaries,
hereby grants to Rockwell Science Center a royalty-free, world-wide,
irrevocable, non-exclusive license under all Intellectual Property (excluding
trademarks, trade names, domain names, service marks, trade dress or any other
form of trade identity) which constitutes Rockwell Collins Assets and which
immediately after the Time of Distribution is either owned by the Rockwell
Collins Group or under which the Rockwell Collins Group has a right to license
without the payment of royalties to a third party to make, have made, use,
import, sell or otherwise dispose of products, or to practice any process in
connection therewith, in the conduct of the Rockwell Science Center Business
(as such business is being conducted at the Time of Distribution); said
non-exclusive license being transferable only by sublicenses (to the extent
permitted in the case of any restricted grant to Rockwell Collins or a
Rockwell Collins Subsidiary, as a licensee) to members of the Rockwell Science
Center Group and in connection with the sale or other disposition of all or
any part of the Rockwell Science Center Business to which such Intellectual
Property relates. To the extent that the Rockwell Science Center Group does
not have copies of any information or materials relating to Intellectual
Property licensed under this Section 3.12(c) that are essential to exercising
such rights, Rockwell Collins will, upon reasonable request, supply to the
Rockwell Science Center Group copies of any such information or materials
relating to such Intellectual Property. In no event shall Rockwell Science
Center utilize any subject matter of the Intellectual Property licensed under
this Section 3.12(c) in a manner that is competitive with the Rockwell Collins
Business as such business is being conducted at the Time of Distribution, or
any related extensions or expansions thereof, except that Rockwell Science
Center shall be able to continue to utilize the subject matter of such
Intellectual Property in a manner that is competitive with the Rockwell
Collins Business in any related extensions or expansions of the Rockwell
Collins Business to the extent (but only to the extent) such Intellectual
Property was utilized by Rockwell Science Center prior to such extensions or
expansions of the Rockwell Collins Businesses.
(d) Effective immediately after the Time of Distribution,
Rockwell Science Center, on behalf of itself and the Rockwell Science Center
Subsidiaries, hereby grants to Rockwell Collins a royalty-free, world-wide,
irrevocable, non-exclusive license under all Intellectual Property (excluding
trademarks, trade names, domain names, service marks, trade dress or any other
form of trade identity) which constitutes Rockwell Science Center Assets and
which immediately after the Time of Distribution is either owned by the
Rockwell Science Center Group or under which the Rockwell Science Center Group
has a right to license without the payment of royalties to a third party to
make, have made, use, import, sell or otherwise dispose of products, or to
practice any process in connection therewith, in the conduct of the Rockwell
Collins Business (as such business is being conducted at the Time of
Distribution, or any related extensions or expansions thereof); said
non-exclusive license being transferable only by sublicenses (to the extent
permitted in the case of any restricted grant to Rockwell Science Center or a
Rockwell Science Center Subsidiary, as a licensee) to members of the Rockwell
59
64
Collins Group and in connection with the sale or other disposition of all or
any part of the Rockwell Collins Business to which such Intellectual Property
relates. To the extent that the Rockwell Collins Group does not have copies of
any information or materials relating to Intellectual Property licensed under
this Section 3.12(d) that are essential to exercising such rights, Rockwell
Science Center will, upon reasonable request, supply to the Rockwell Collins
Group copies of any such information or materials relating to such
Intellectual Property.
(e) Rockwell hereby covenants not to (and to cause the
Rockwell Subsidiaries not to) assert any claims or rights, bring any suit, or
institute any other action against the Rockwell Collins Group or any Person in
the chain of title of products and services of the Rockwell Collins Group,
based upon any infringement of any Intellectual Property (excluding
trademarks, trade names, domain names, service marks, trade dress or any other
form of trade identity) which constitutes Rockwell Automation Assets and which
immediately after the Time of Distribution is either owned by the Rockwell
Automation Group or under which the Rockwell Automation Group has a right to
license or grant immunity from suit without payment of royalties to a third
party which might occur as a result of any manufacture, use, import, sale or
other disposition by the Rockwell Collins Group of products or services after
the Time of Distribution in the conduct of the Rockwell Collins Business (as
such business is being conducted at the Time of Distribution, or any related
extensions or expansions thereof). This covenant not to sue shall extend in
perpetuity to (i) the Rockwell Collins Group and (ii) assignees of the
Rockwell Collins Group, but only in connection with the sale or other
disposition of all or any part of the Rockwell Collins Business to which such
Intellectual Property relates. All Intellectual Property covered by the
covenant in this Section 3.12(e) shall be transferred, whether by assignment,
license or otherwise, subject to this covenant and all transferees of such
Intellectual Property shall take such assignment, license or other transfer
subject to this covenant.
(f) Rockwell Collins hereby covenants not to (and to cause
the Rockwell Collins Subsidiaries not to) assert any claims or rights, bring
any suit, or institute any other action against the Rockwell Automation Group
or any Person in the chain of title of products and services of the Rockwell
Automation Group, based upon any infringement of any Intellectual Property
(excluding trademarks, trade names, domain names, service marks, trade dress
or any other form of trade identity) which constitutes Rockwell Collins Assets
and which immediately after the Time of Distribution is either owned by the
Rockwell Collins Group or under which the Rockwell Collins Group has a right
to license or grant immunity from suit without payment of royalties to a third
party which might occur as a result of any manufacture, use, import, sale or
other disposition by the Rockwell Automation Group of products or services
after the Time of Distribution in the conduct of the Rockwell Automation
Business (as such business is being conducted at the Time of Distribution, or
any related extensions or expansions thereof). This covenant not to sue shall
extend in perpetuity to (i) the Rockwell Automation Group and (ii) assignees
of the Rockwell Automation Group, but only in connection with the sale or
other disposition of all or any part of the Rockwell Automation Business to
which such Intellectual Property relates. All Intellectual Property covered by
the covenant in this Section 3.12(f) shall be transferred, whether by
assignment, license or otherwise, subject to this covenant and all transferees
of such Intellectual Property shall take such assignment, license or other
transfer subject to this covenant.
60
65
(g) (i) For purposes of this Section 3.12(g), the
following terms will have the following definitions:
(A) "Administrative Services" means services pertaining to
personnel, payroll, property management, benefits, human resource
management, financial planning, case docketing and management,
contract and subcontract management, facilities management, proposal
activities and other similar services.
(B) "Administrative Services Software" means software
originated internally and owned by Rockwell or any of its Subsidiaries
(including members of the Rockwell Collins Group and members of the
Rockwell Science Center Group) prior to the Time of Distribution and
relating to the provision of Administrative Services to business units
of Rockwell or any of its Subsidiaries (including members of the
Rockwell Collins Group and members of the Rockwell Science Center
Group) immediately prior to the Time of Distribution, regardless of
where ownership of such software vests after the Time of Distribution.
Administrative Services Software also shall include materials and
documentation supplied by one party to the other pursuant to clause
(iv) of this Section 3.12(g).
(C) "Transition Period" means the period from the Time of
Distribution until the termination or expiration of the provision of
services pursuant to each of the Transition Agreement and the
Continuing Services Agreements.
(ii) Anything contained herein to the contrary
notwithstanding, the following licenses shall govern Administrative Services
Software:
(A) Effective as of the Time of Distribution, Rockwell, on
behalf of itself and the Rockwell Subsidiaries, hereby grants to the
Rockwell Collins Group and the Rockwell Science Center Group a
royalty-free, world-wide, irrevocable non-exclusive license to use
Administrative Services Software which constitutes Rockwell Automation
Assets and which immediately after the Time of Distribution is either
owned by the Rockwell Automation Group or under which the Rockwell
Automation Group has a right to license without the payment of
royalties to a third party, but only for the internal business
purposes of the Rockwell Collins Group or the Rockwell Science Center
Group, as the case may be, including the right to sublicense only to
(x) members of the Rockwell Collins Group or the Rockwell Science
Center Group, as the case may be, and (y) service providers to use the
Administrative Services Software for or on behalf of the Rockwell
Collins Group or the Rockwell Science Center Group, as the case may
be.
(B) Effective as of the Time of Distribution, Rockwell
Collins, on behalf of itself and the Rockwell Collins Subsidiaries,
hereby grants to the Rockwell Automation Group and the Rockwell
Science Center Group a royalty-free, world-wide, irrevocable
non-exclusive license to use Administrative Services Software which
constitutes Rockwell Collins Assets and which immediately after the
Time of Distribution is either owned by the Rockwell Collins Group or
under which the Rockwell Collins Group has a right to license without
the payment of royalties to a third party, but only for the internal
61
66
business purposes of the Rockwell Automation Group or the Rockwell
Science Center Group, as the case may be, including the right to
sublicense only to (x) members of the Rockwell Automation Group or the
Rockwell Science Center Group, as the case may be, and (y) service
providers to use the Administrative Services Software for or on behalf
of the Rockwell Automation Group or the Rockwell Science Center Group,
as the case may be.
(C) Effective as of the Time of Distribution, Rockwell
Science Center, on behalf of itself and the Rockwell Science Center
Subsidiaries, hereby grants to the Rockwell Automation Group and the
Rockwell Collins Group a royalty-free, world-wide, irrevocable
non-exclusive license to use Administrative Services Software which
constitutes Rockwell Science Center Assets and which immediately after
the Time of Distribution is either owned by the Rockwell Science
Center Group or under which the Rockwell Science Center Group has a
right to license without the payment of royalties to a third party,
but only for the internal business purposes of the Rockwell Automation
Group or the Rockwell Collins Group, as the case may be, including the
right to sublicense only to (x) members of the Rockwell Automation
Group or the Rockwell Collins Group, as the case may be, and (y)
service providers to use the Administrative Services Software for or
on behalf of the Rockwell Automation Group or the Rockwell Collins
Group, as the case may be.
(D) Except as set forth in this paragraph (ii), the licenses
granted pursuant to this Section 3.12(g) do not include the right to
sublicense. Software originated or maintained during the Transition
Period by a party and relating to the provision of Administrative
Services to any other party pursuant to the Transition Agreement or
the Continuing Services Agreements shall be considered Administrative
Services Software subject to the above licenses, provided, that the
party to be licensed has paid a mutually agreeable share of the
origination and/or maintenance costs for such software and requests
during the Transition Period that such software be subject to such
licenses.
(iii) Each party shall have the right to use, disclose,
perform, display, copy, distribute and make derivatives of Administrative
Services Software within the scope of the licenses granted herein. Title to
Administrative Services Software and all rights therein, including all rights
in patents, copyrights and trade secrets and any other intellectual property
rights applicable thereto, shall remain vested in the party to which ownership
is allocated pursuant to this Agreement. Notwithstanding anything to the
contrary contained herein, each licensed party agrees that it will not use,
copy, disclose, sell, assign or sublicense, or otherwise transfer
Administrative Services Software licensed to it under this Section 3.12(g) or
any derivatives thereof, except as expressly provided in this Section 3.12(g).
(iv) To the extent that a licensed party does not have copies
of any Administrative Services Software or materials and documentation (such
as source code listings, flow charts, user guides and programmer's guides)
relating to the operation and maintenance of such Administrative Services
Software to which another applicable party has ownership, such owning party
shall, as soon as practicable after request of the licensed party, supply to
the
62
67
licensed party copies of such Administrative Services Software and any related
operating and maintenance materials or documentation existing as of the Time
of Distribution.
(v) In the event that Administrative Services Software is
used by the owner in the ordinary course of its business either associated or
bundled with software owned or controlled by a third party (e.g., as a suite
of software), without which the Administrative Services Software would be
wholly or partly inoperable or otherwise unfit for its intended purposes, the
grant of the licenses under the provisions of this Section 3.12(g) shall not
be construed as an implied license to use the software of such a third party
or as an undertaking on the part of the owner of the Administrative Services
Software to obtain a license to permit the use of such third party software.
(h) (i) Rockwell makes no representations or warranties
of any kind with respect to the validity, scope or enforceability of any
Intellectual Property of Rockwell or the Rockwell Subsidiaries subject to this
Section 3.12 and none of Rockwell or the Rockwell Subsidiaries has any
obligation to file or prosecute any patent applications or maintain any
patents in force in connection therewith. Notwithstanding anything contained
herein to the contrary, this Section 3.12 will not be applicable to any rights
in, and to the use of, the names, trademarks, trade names and service marks
"Rockwell" and "Rockwell International" and all corporate symbols and logos
related thereto and all names, trademarks, trade names and service marks which
include the words "Rockwell" or "Rockwell International" or any derivative
thereof.
(ii) Rockwell Collins makes no representations or warranties
of any kind with respect to the validity, scope or enforceability of any
Intellectual Property of Rockwell Collins or the Rockwell Collins Subsidiaries
subject to this Section 3.12 and none of Rockwell Collins or the Rockwell
Collins Subsidiaries has any obligation to file or prosecute any patent
applications or maintain any patents in force in connection therewith.
(iii) Rockwell Science Center makes no representations or
warranties of any kind with respect to the validity, scope or enforceability
of any Intellectual Property of Rockwell Science Center or the Rockwell
Science Center Subsidiaries subject to this Section 3.12 and none of Rockwell
Science Center or the Rockwell Science Center Subsidiaries has any obligation
to file or prosecute any patent applications or maintain any patents in force
in connection therewith.
SECTION 3.13 Software and Other License Agreements. If after
the Time of Distribution, Rockwell Collins (or any member of the Rockwell
Collins Group) or Rockwell Science Center (or any member of the Rockwell
Science Center Group), as the case may be, no longer has licensee rights under
any software or other license agreement of Rockwell (or any member of the
Rockwell Automation Group) (a "Rockwell Automation License Agreement") that,
prior to the Time of Distribution, was used in the conduct of the Rockwell
Collins Business or the Rockwell Science Center Business, as the case may be,
(i) because such license agreement does not constitute a Rockwell Collins
Asset or a Rockwell Science Center Asset, as the case may be, (ii) because the
transfer of, or sublicense under such Rockwell Automation License Agreement
required the consent of a third party and such consent was not obtained or
(iii) for
63
68
any other reason, then Rockwell Collins or Rockwell Science Center, as the
case may be, shall be responsible for all costs and expenses incurred in
connection with the procurement of new license agreements to replace any such
Rockwell Automation License Agreements.
SECTION 3.14 Charitable Entities. Prior to the Time of
Distribution, Rockwell Collins shall have established the Rockwell Collins
Charitable Corporation. Prior to the Time of Distribution, Rockwell shall cause
$[ ] to be transferred from the Rockwell Charitable Trust to the Rockwell
Collins Charitable Corporation. Prior to the Time of Distribution, Rockwell
shall cause to be transferred to the Rockwell Collins Charitable Corporation,
and Rockwell and Rockwell Collins shall cause the Rockwell Collins Charitable
Corporation to assume, the commitments of the Rockwell Charitable Trust set
forth on Schedule 3.14.
ARTICLE IV
MUTUAL RELEASE; INDEMNIFICATION
SECTION 4.01 Mutual Release. Effective as of the Time of
Distribution and except as otherwise specifically set forth in the Transaction
Agreements, each of Rockwell, on behalf of itself and the Rockwell
Subsidiaries, Rockwell Collins, on behalf of itself and the Rockwell Collins
Subsidiaries, and Rockwell Science Center, on behalf of itself and the
Rockwell Science Center Subsidiaries, hereby releases and forever discharges
each other party and its Subsidiaries, and its and their respective officers,
directors, agents, record and beneficial security holders (including trustees
and beneficiaries of trusts holding such securities), advisors and
Representatives (in each case, in their respective capacities as such) and
their respective heirs, executors, administrators, successors and assigns, of
and from all debts, demands, actions, causes of action, suits, accounts,
covenants, contracts, agreements, damages, claims and Liabilities whatsoever
of every name and nature, both in law and in equity, which the releasing party
has or ever had or ever will have, which arise out of or relate to events,
circumstances or actions taken by such other party occurring or failing to
occur or any conditions existing at or prior to the Time of Distribution;
provided, however, that the foregoing general release shall not apply to (i)
any Liabilities or other obligations (including Liabilities with respect to
payment, reimbursement, indemnification or contribution) under the Transaction
Agreements or assumed, transferred, assigned, allocated or arising under any
of the Transaction Agreements (including any Liability that the parties may
have with respect to payment, performance, reimbursement, indemnification or
contribution pursuant to any Transaction Agreement for claims brought against
the parties by third Persons) and the foregoing release will not affect any
party's right to enforce the Transaction Agreements in accordance with their
terms, (ii) any Liability arising from or relating to any agreement,
arrangement, commitment or undertaking described in Section 3.04(b)(ii)
(including Ordinary Course Intercompany Arrangements), or (iii) any Liability
the release of which would result in the release of any Person other than a
Person released pursuant to this Section 4.01 (provided, that the parties
agree not to bring suit or permit any of their Subsidiaries to bring suit
against any member of any other Group with respect to any Liability to the
extent such member of the other Group would be released with respect to such
Liability by this Section 4.01 but for this clause (iii)).
64
69
SECTION 4.02 Indemnification by Rockwell. Subject to the
provisions of this Article IV, Rockwell shall indemnify, defend and hold
harmless the Rockwell Collins Indemnitees and the Rockwell Science Center
Indemnitees from and against, and pay or reimburse, as the case may be, the
Rockwell Collins Indemnitees and the Rockwell Science Center Indemnitees for,
all Indemnifiable Losses, as incurred, suffered by any Rockwell Collins
Indemnitee or Rockwell Science Center Indemnitee, as the case may be, based
upon, arising out of or relating to the following (except that paragraph (b)
below shall not apply to Rockwell Science Center Indemnitees):
(a) the Rockwell Automation Liabilities (including the
failure by Rockwell or any other member of the Rockwell Automation
Group to pay, perform or otherwise discharge such Liabilities in
accordance with their terms), whether such Indemnifiable Losses are
based upon, arise out of or relate to events, occurrences, actions,
omissions, facts, circumstances or conditions occurring, existing or
asserted before, at or after the Time of Distribution;
(b) any untrue statement or alleged untrue statement of a
material fact contained in the sections of the Form 10 listed on
Schedule 4.02(b), or any omission or alleged omission to state in such
sections a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; but only in each case with respect to
information relating to the Rockwell Automation Group provided by
Rockwell expressly for use in the sections of the Form 10 listed on
Schedule 4.02(b);
(c) the breach by any member of the Rockwell Automation
Group of any agreement or covenant contained in a Transaction
Agreement which does not by its express terms expire at the Time of
Distribution; or
(d) the enforcement by the Rockwell Collins Indemnitees or
the Rockwell Science Center Indemnitees, as the case may be, of their
rights to be indemnified, defended and held harmless under this
Agreement.
SECTION 4.03 Indemnification by Rockwell Collins. Subject to
the provisions of this Article IV, Rockwell Collins shall indemnify, defend
and hold harmless the Rockwell Automation Indemnitees and the Rockwell Science
Center Indemnitees from and against, and pay or reimburse, as the case may be,
the Rockwell Automation Indemnitees and the Rockwell Science Center
Indemnitees for, all Indemnifiable Losses, as incurred, suffered by any
Rockwell Automation Indemnitee or Rockwell Science Center Indemnitee, as the
case may be, based upon, arising out of or relating to the following (except
that paragraphs (b) and (d) below will not apply to Rockwell Science Center
Indemnitees):
(a) the Rockwell Collins Liabilities (including the failure
by Rockwell Collins or any other member of the Rockwell Collins Group
to pay, perform or otherwise discharge Rockwell Collins Liabilities in
accordance with their terms), whether such Indemnifiable Losses are
based upon, arise out of or relate to events, occurrences,
65
70
actions, omissions, facts, circumstances or conditions occurring,
existing or asserted before, at or after the Time of Distribution;
(b) any untrue statement or alleged untrue statement of a
material fact contained in the Form 10, or any omission or alleged
omission to state in the Form 10 a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except in
each case with respect to information relating to the Rockwell
Automation Group provided by Rockwell expressly for use in the
sections of the Form 10 listed on Schedule 4.02(b);
(c) the breach by any member of the Rockwell Collins Group
of any agreement or covenant contained in a Transaction Agreement
which does not by its express terms expire at the Time of
Distribution;
(d) the use by members of the Rockwell Collins Group of any
names, trademarks, trade names, domain names or corporate symbols or
logos pursuant to Section 3.10(b) or Section 3.10(d); or
(e) the enforcement by the Rockwell Automation Indemnitees
or the Rockwell Science Center Indemnitees, as the case may be, of
their rights to be indemnified, defended and held harmless under this
Agreement.
SECTION 4.04 Indemnification by Rockwell Science Center.
Subject to the provisions of this Article IV, Rockwell Science Center shall
indemnify, defend and hold harmless the Rockwell Automation Indemnitees and
the Rockwell Collins Indemnitees from and against, and pay or reimburse, as
the case may be, the Rockwell Automation Indemnitees and the Rockwell Collins
Indemnitees for, all Indemnifiable Losses, as incurred, suffered by any
Rockwell Automation Indemnitee or Rockwell Collins Indemnitee, as the case may
be, based upon, arising out of or relating to the following (except that
paragraph (c) below will not apply to Rockwell Collins Indemnitees):
(a) the Rockwell Science Center Liabilities (including the
failure by Rockwell Science Center or any other member of the Rockwell
Science Center Group to pay, perform or otherwise discharge Rockwell
Science Center Liabilities in accordance with their terms), whether
such Indemnifiable Losses are based upon, arise out of or relate to or
are otherwise in connection with events, occurrences, actions,
omissions, facts, circumstances or conditions occurring, existing or
asserted before, at or after the Time of Distribution;
(b) the breach by any member of the Rockwell Science Center
Group of any agreement or covenant contained in a Transaction
Agreement which does not by its express terms expire at the Time of
Distribution;
(c) the use by members of the Rockwell Science Center Group
of any names, trademarks, trade names, domain names or corporate
symbols or logos pursuant to Section 3.10(c) or Section 3.10(d); or
66
71
(d) the enforcement by the Rockwell Automation Indemnitees
or the Rockwell Collins Indemnitees, as the case may be, of their
rights to be indemnified, defended and held harmless under this
Agreement.
SECTION 4.05 Limitations on Indemnification Obligations.
(a) The amount which any party (an "Indemnifying Party") is
or may be required to pay to an Indemnitee in respect of Indemnifiable Losses
or other Liability for which indemnification is provided under this Agreement
shall be reduced by any amounts actually received (including Insurance
Proceeds actually received) by or on behalf of such Indemnitee (net of
increased insurance premiums and charges related directly and solely to the
related Indemnifiable Losses and costs and expenses (including reasonable
legal fees and expenses) incurred by such Indemnitee in connection with
seeking to collect and collecting such amounts) in respect of such
Indemnifiable Losses or other Liability (such net amounts are referred to
herein as "Indemnity Reduction Amounts"). If any Indemnitee receives any
Indemnity Reduction Amounts in respect of an Indemnifiable Loss for which
indemnification is provided under this Agreement after the full amount of such
Indemnifiable Loss has been paid by an Indemnifying Party or after an
Indemnifying Party has made a partial payment of such Indemnifiable Loss and
such Indemnity Reduction Amounts exceeds the remaining unpaid balance of such
Indemnifiable Loss, then the Indemnitee shall promptly remit to the
Indemnifying Party an amount equal to the excess (if any) of (A) the amount
theretofore paid by the Indemnifying Party in respect of such Indemnifiable
Loss, less (B) the amount of the indemnity payment that would have been due if
such Indemnity Reduction Amounts in respect thereof had been received before
the indemnity payment was made. An insurer or other third party who would
otherwise be obligated to pay any claim shall not be relieved of the
responsibility with respect thereto or, solely by virtue of the
indemnification provisions hereof, 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 any benefit they would not be entitled to
receive in the absence of the indemnification provisions by virtue of the
indemnification provisions hereof.
(b) In determining the amount of any Indemnifiable Losses,
such amount shall be (i) reduced to take into account any net Tax benefit
realized by the Indemnitee arising from the incurrence or payment by the
Indemnitee of such Indemnifiable Losses and (ii) increased to take into
account any net Tax cost incurred by the Indemnitee as a result of the receipt
or accrual of payments hereunder (grossed-up for such increase), in each case
determined by treating the Indemnitee as recognizing all other items of
income, gain, loss, deduction or credit before recognizing any item arising
from such Indemnifiable Losses. It is the intention of the parties to this
Agreement that indemnity payments made pursuant to this Agreement are to be
treated as relating back to the Distribution as an adjustment to capital
(i.e., capital contribution or distribution), and the parties shall not take
any position inconsistent with such intention before any Tax Authority (as
defined in the Tax Allocation Agreement), except to the extent that a final
determination (as defined in Section 1313 of the Code) with respect to the
recipient party causes any such payment not to be so treated.
67
72
SECTION 4.06 Procedures Relating to Indemnification.
(a) If a claim or demand is made against an Indemnitee, or
an Indemnitee shall otherwise learn of an assertion, by any Person who is not
a party to this Agreement (or an Affiliate thereof) as to which an
Indemnifying Party may be obligated to provide indemnification pursuant to
this Agreement (a "Third Party Claim"), such Indemnitee will notify the
Indemnifying Party in writing, and in reasonable detail, of the Third Party
Claim reasonably promptly after becoming aware of such Third Party Claim;
provided, however, that failure to give such notification will not affect the
indemnification provided hereunder except to the extent the Indemnifying Party
shall have been actually prejudiced as a result of such failure. Thereafter,
the Indemnitee will deliver to the Indemnifying Party, promptly after the
Indemnitee's receipt thereof, copies of all material notices and documents
(including court papers) received or transmitted by the Indemnitee relating to
the Third Party Claim.
(b) If a Third Party Claim is made against an Indemnitee,
the Indemnifying Party will be entitled to participate in or to assume the
defense thereof (in either case, at the expense of the Indemnifying Party)
with counsel selected by the Indemnifying Party and reasonably satisfactory to
the Indemnitee. Should the Indemnifying Party so elect to assume the defense
of a Third Party Claim, the Indemnifying Party will not be liable to the
Indemnitee for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof; provided, that if in the
Indemnitee's reasonable judgment a conflict of interest exists in respect of
such claim or if the Indemnifying Party shall have assumed responsibility for
such claim with any reservations or exceptions, such Indemnitee will have the
right to employ separate counsel reasonably satisfactory to the Indemnifying
Party to represent such Indemnitee and in that event the reasonable fees and
expenses of such separate counsel (but not more than one separate counsel for
all Indemnitees similarly situated) shall be paid by such Indemnifying Party.
If the Indemnifying Party assumes the defense of any Third Party Claim, the
Indemnitee will have the right to participate in the defense thereof and to
employ counsel, at its own expense, separate from the counsel employed by the
Indemnifying Party, it being understood that the Indemnifying Party will
control such defense. The Indemnifying Party will be liable for the fees and
expenses of counsel employed by the Indemnitee for any period during which the
Indemnifying Party has failed to assume the defense thereof. If the
Indemnifying Party assumes the defense of any Third Party Claim, the
Indemnifying Party will promptly supply to the Indemnitee copies of all
material correspondence and documents relating to or in connection with such
Third Party Claim and keep the Indemnitee fully informed of all material
developments relating to or in connection with such Third Party Claim
(including providing to the Indemnitee on request updates and summaries as to
the status thereof). If the Indemnifying Party chooses to defend a Third Party
Claim, the parties hereto will cooperate in the defense thereof (such
cooperation to be at the expense, including reasonable legal fees and
expenses, of the Indemnifying Party), which cooperation shall include the
retention in accordance with this Agreement and (upon the Indemnifying Party's
request) the provision to the Indemnifying Party of records and information
which are reasonably relevant to such Third Party Claim, and making employees
available on a mutually convenient basis to provide additional information and
explanation of any material provided hereunder.
68
73
(c) No Indemnifying Party will consent to any settlement,
compromise or discharge (including the consent to entry of any judgment) of
any Third Party Claim without the Indemnitee's prior written consent (which
consent will not be unreasonably withheld); provided, that if the Indemnifying
Party assumes the defense of any Third Party Claim, the Indemnitee will agree
to any settlement, compromise or discharge of such Third Party Claim which the
Indemnifying Party may recommend and which by its terms obligates the
Indemnifying Party to pay the full amount of Indemnifiable Losses in
connection with such Third Party Claim and unconditionally and irrevocably
releases the Indemnitee and its Affiliates completely from all Liability in
connection with such Third Party Claim; provided, however, that the Indemnitee
may refuse to agree to any such settlement, compromise or discharge (x) that
provides for injunctive or other nonmonetary relief affecting the Indemnitee
or any of its Affiliates or (y) that, in the reasonable opinion of the
Indemnitee, would otherwise materially adversely affect the Indemnitee or any
of its Affiliates. Whether or not the Indemnifying Party shall have assumed
the defense of a Third Party Claim, the Indemnitee will not (unless required
by law) admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the Indemnifying Party's prior
written consent (which consent will not be unreasonably withheld).
(d) Any claim on account of Indemnifiable Losses which does
not involve a Third Party Claim will be asserted by reasonably prompt written
notice given by the Indemnitee to the Indemnifying Party from whom such
indemnification is sought. The failure by any Indemnitee so to notify the
Indemnifying Party will not relieve the Indemnifying Party from any liability
which it may have to such Indemnitee under this Agreement, except to the
extent that the Indemnifying Party shall have been actually prejudiced by such
failure.
(e) In the event of payment in full by an Indemnifying Party
to any Indemnitee in connection with any Third Party Claim, such Indemnifying
Party will be subrogated to and shall stand in the place of such Indemnitee as
to any events or circumstances in respect of which such Indemnitee may have
any right or claim relating to such Third Party Claim against any claimant or
plaintiff asserting such Third Party Claim or against any other Person. Such
Indemnitee will cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense of such Indemnifying Party, in prosecuting any
subrogated right or claim.
SECTION 4.07 Remedies Cumulative. Subject to the
provisions of Section 6.06, the remedies provided in this Article IV shall be
cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.
SECTION 4.08 Survival of Indemnities. The obligations of each
of Rockwell, Rockwell Collins and Rockwell Science Center under this Article
IV will not terminate at any time and will survive the sale or other transfer
by any party of any assets or businesses or the assignment by any party of any
Liabilities with respect to any Indemnifiable Losses of the other related to
such assets, businesses or Liabilities.
SECTION 4.09 Exclusivity of Tax Allocation Agreement.
Notwithstanding anything in this Agreement to the contrary, the Tax Allocation
Agreement will be the exclusive
69
74
agreement among the parties with respect to all Tax matters, including
indemnification in respect of Tax matters.
ARTICLE V
ACCESS TO INFORMATION
SECTION 5.01 Access to Information.
(a) From and after the Time of Distribution, Rockwell will,
and will cause each Rockwell Subsidiary to, afford to Rockwell Collins and its
Representatives (at Rockwell Collins' expense) reasonable access and
duplicating rights during normal business hours and upon reasonable advance
notice to all Information within Rockwell's possession or control or in the
possession or control of a Rockwell Subsidiary relating to Rockwell Collins,
any Rockwell Collins Subsidiary or the Rockwell Collins Business insofar as
such access is reasonably required by Rockwell Collins or any Rockwell Collins
Subsidiary, subject to the provisions below regarding Privileged Information.
(b) From and after the Time of Distribution, Rockwell will,
and will cause each Rockwell Subsidiary to, afford to Rockwell Science Center
and its Representatives (at Rockwell Science Center's expense) reasonable
access and duplicating rights during normal business hours and upon reasonable
advance notice to all Information within Rockwell's possession or control or
in the possession or control of a Rockwell Subsidiary relating to Rockwell
Science Center, any Rockwell Science Center Subsidiary or the Rockwell Science
Center Business insofar as such access is reasonably required by Rockwell
Science Center or any Rockwell Science Center Subsidiary, subject to the
provisions below regarding Privileged Information.
(c) From and after the Time of Distribution, Rockwell
Collins will, and will cause each Rockwell Collins Subsidiary to, afford to
Rockwell and its Representatives (at Rockwell's expense) reasonable access and
duplicating rights during normal business hours and upon reasonable advance
notice to all Information within Rockwell Collins' possession or control or in
the possession or control of a Rockwell Collins Subsidiary relating to
Rockwell, any Rockwell Subsidiary or the Rockwell Automation Business insofar
as such access is reasonably required by Rockwell or any Rockwell Subsidiary,
subject to the provisions below regarding Privileged Information.
(d) From and after the Time of Distribution, Rockwell
Collins will, and will cause each Rockwell Collins Subsidiary to, afford to
Rockwell Science Center and its Representatives (at Rockwell Science Center's
expense) reasonable access and duplicating rights during normal business hours
and upon reasonable advance notice to all Information within Rockwell Collins'
possession or control or in the possession or control of a Rockwell Collins
Subsidiary relating to Rockwell Science Center, any Rockwell Science Center
Subsidiary or the Rockwell Science Center Business insofar as such access is
reasonably required by Rockwell
70
75
Science Center or any Rockwell Science Center Subsidiary, subject to the
provisions below regarding Privileged Information.
(e) From and after the Time of Distribution, Rockwell
Science Center will, and will cause each Rockwell Science Center Subsidiary
to, afford to Rockwell and its Representatives (at Rockwell's expense)
reasonable access and duplicating rights during normal business hours and upon
reasonable advance notice to all Information within Rockwell Science Center's
possession or control or in the possession or control of a Rockwell Science
Center Subsidiary relating to Rockwell, any Rockwell Subsidiary or the
Rockwell Automation Business insofar as such access is reasonably required by
Rockwell or any Rockwell Subsidiary, subject to the provisions below regarding
Privileged Information.
(f) From and after the Time of Distribution, Rockwell
Science Center will, and will cause each Rockwell Science Center Subsidiary
to, afford to Rockwell Collins and its Representatives (at Rockwell Collins'
expense) reasonable access and duplicating rights during normal business hours
and upon reasonable advance notice to all Information within Rockwell Science
Center's possession or control or in the possession or control of a Rockwell
Science Center Subsidiary relating to Rockwell Collins, any Rockwell Collins
Subsidiary or the Rockwell Collins Business insofar as such access is
reasonably required by Rockwell Collins or any Rockwell Collins Subsidiary,
subject to the provisions below regarding Privileged Information.
(g) Without limiting the foregoing, Information may be
requested under this Article V for audit, accounting, claims, litigation,
insurance, environmental and safety and tax purposes, as well as for purposes
of fulfilling disclosure and reporting obligations and for performing this
Agreement and the transactions contemplated hereby.
In furtherance of the foregoing:
(i) Each party acknowledges that (A) each of Rockwell,
Rockwell Collins and the Rockwell Science Center (and the members of
the Rockwell Automation Group, the Rockwell Collins Group and the
Rockwell Science Center Group, respectively) has or may obtain
Privileged Information; (B) there are a number of Actions affecting
one or more of the members of the Rockwell Automation Group, the
Rockwell Collins Group and the Rockwell Science Center Group; (C) the
parties may have a common legal interest in Actions, in the Privileged
Information, and in the preservation of the confidential status of the
Privileged Information; and (D) each of Rockwell, Rockwell Collins and
Rockwell Science Center intends that the transactions contemplated by
the Transaction Agreements and any transfer of Privileged Information
in connection therewith shall not operate as a waiver of any
potentially applicable privilege.
(ii) Each of Rockwell, Rockwell Collins and Rockwell Science
Center agrees, on behalf of itself and each member of the Group of
which it is a member, not to disclose or otherwise waive any privilege
attaching to any Privileged Information relating to the business of
another Group without providing prompt written notice to and obtaining
the prior written consent of the applicable other party, which consent
will not be
71
76
unreasonably withheld. In the event of a disagreement between any
member of the Rockwell Automation Group, any member of the Rockwell
Collins Group and/or any member of the Rockwell Science Center Group
concerning the reasonableness of withholding such consent, no
disclosure will be made prior to a final, nonappealable resolution of
such disagreement.
(iii) Upon any member of the Rockwell Automation Group, any
member of the Rockwell Collins Group or any member of the Rockwell
Science Center Group receiving any subpoena or other compulsory
disclosure notice from a court, other Governmental Entity or otherwise
which requests disclosure of Privileged Information, in each case
relating to the business of another Group, the recipient of the notice
will promptly provide to the applicable other party (following the
notice provisions set forth herein) a copy of such notice, the
intended response, and all materials or information relating to the
other Group that might be disclosed. In the event of a disagreement
as to the intended response or disclosure, unless and until the
disagreement is resolved as provided in Section 5.01(g)(ii), the
parties will cooperate to assert all defenses to disclosure claimed by
any Group, at the cost and expense of the Group claiming such defense
to disclosure, and shall not disclose any disputed documents or
information until all legal defenses and claims of privilege have been
finally determined.
SECTION 5.02 Production of Witnesses. Subject to Section 5.01,
after the Time of Distribution, each of Rockwell, Rockwell Collins and
Rockwell Science Center will, and will cause each member of the Rockwell
Automation Group, the Rockwell Collins Group and the Rockwell Science Center
Group, respectively, to, make available to each other party and members of
such other party's Group, upon written request and at the cost and expense of
the party so requesting, its directors, officers, employees and agents as
witnesses to the extent that any such Person may reasonably be required
(giving consideration to business demands of such directors, officers,
employees and agents) in connection with any Actions or other proceedings in
which the requesting party may from time to time be involved, provided that
the same shall not unreasonably interfere with the conduct of business by the
Group of which the request is made.
SECTION 5.03 Retention of Records. Except as otherwise required
by law or agreed to by the parties in writing, if any Information relating to
the business, assets or Liabilities of a member of a Group is retained by a
member of any other Group, each of Rockwell, Rockwell Collins and Rockwell
Science Center will, and will cause the members of the Group of which it is a
member to, retain for the period required by the applicable Rockwell records
retention policy in effect immediately prior to the Time of Distribution all
such Information in such Group's possession or under its control. In addition,
after the expiration of such required retention period, if any member of a
Group wishes to destroy or dispose of any such Information, prior to
destroying or disposing of any of such Information, (1) Rockwell, Rockwell
Collins or Rockwell Science Center, on behalf of the member of its Group that
is proposing to dispose of or destroy any such Information, will provide no
less than 30 days' prior written notice to the applicable other party,
specifying in reasonable detail the Information proposed to be destroyed or
disposed of, and (2) if, prior to the scheduled date for such destruction or
disposal, the recipient of such notice requests in writing that any of the
Information proposed to be destroyed or disposed of be delivered to such
requesting party, the party whose Group is proposing to
72
77
dispose of or destroy such Information promptly will arrange for the delivery
of the requested Information to a location specified by, and at the expense
of, the requesting party.
SECTION 5.04 Confidentiality. Subject to Section 5.01, which
shall govern Privileged Information, from and after the Time of Distribution,
each of Rockwell, Rockwell Collins and Rockwell Science Center shall hold, and
shall use reasonable efforts to cause members of its Group and its and their
Representatives to hold, in strict confidence all Information concerning each
other party's Group in its possession or control or furnished to it by such
other party's Group pursuant to the Transaction Agreements or the transactions
contemplated thereby and will not release or disclose such Information to any
other Person, except members of its Group and its and their Representatives,
who will be bound by the provisions of this Section 5.04; provided, however,
that any member of the Rockwell Automation Group, the Rockwell Collins Group
or the Rockwell Science Center Group may disclose such Information to the
extent that (a) disclosure is compelled by judicial or administrative process
or, in the opinion of such Person's counsel, by other requirements of law (in
which case the party required to make such disclosure will notify the other
party as soon as practicable of such obligation or requirement and cooperate
with the other party to limit the Information required to be disclosed and to
obtain a protective order or other appropriate remedy with respect to the
Information ultimately disclosed) or (b) such Person can show that such
Information was (i) available to such Person on a nonconfidential basis (other
than from a member of another party's Group) prior to its disclosure by such
Person, (ii) in the public domain through no fault of such Person, or (iii)
lawfully acquired by such Person from another source after the time that it
was furnished to such Person by another party's Group, and not acquired from
such source subject to any confidentiality obligation on the part of such
source known to the acquiror, or on the part of the acquiror. Each party
acknowledges that it will be liable for any breach of this Section 5.04 by its
Representatives to whom such Information is disclosed by such party.
Notwithstanding the foregoing, each of Rockwell, Rockwell Collins and Rockwell
Science Center will be deemed to have satisfied its obligations under this
Section 5.04 with respect to any Information (other than Privileged
Information) if it exercises the same care with regard to such Information as
it takes to preserve confidentiality for its own similar Information.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Entire Agreement; Construction. This Agreement and
the Ancillary Agreements, including any annexes, schedules and exhibits hereto
or thereto, and other agreements and documents referred to herein and therein,
will together constitute the entire agreement between the parties with respect
to the subject matter hereof and thereof and will supersede all prior
negotiations, agreements and understandings of the parties of any nature,
whether oral or written, with respect to such subject matter. Notwithstanding
any other provisions in the Transaction Agreements to the contrary, (i) in the
event and to the extent that there is a conflict between the provisions of
this Agreement and the provisions of the Employee Matters Agreement or the Tax
Allocation Agreement, the provisions of the Employee Matters Agreement or the
Tax Allocation Agreement, as appropriate, will control and (ii) in the event
73
78
and to the extent that there is a conflict between the provisions of this
Agreement and the provisions of any Conveyance and Assumption Instruments, the
provisions of this Agreement will control.
SECTION 6.02 Survival of Agreements. Except as otherwise
contemplated by the Transaction Agreements, all covenants and agreements of
the parties contained in the Transaction Agreements will remain in full force
and effect and survive the Time of Distribution.
SECTION 6.03 Expenses.
(a) Except as otherwise set forth in any Transaction
Agreement, (i) all Rockwell Automation Expenses will be charged to and paid by
Rockwell, (ii) all Rockwell Collins Expenses will be charged to and paid by
Rockwell Collins and (iii) all Rockwell Science Center Expenses will be
charged to and paid by Rockwell Science Center.
(b) Within ten days after the Distribution Date, Rockwell
Collins will reimburse Rockwell (by wire transfer to Rockwell's bank account
at Mellon Bank, N.A., Pittsburgh, Pennsylvania, account number 102-3474) for
all amounts in respect of Rockwell Collins Expenses paid by Rockwell or any of
its Subsidiaries (including members of the Rockwell Collins Group and members
of the Rockwell Science Center Group) before or at the Time of Distribution
and notified in writing by Rockwell to Rockwell Collins within five days after
the Distribution Date. Promptly after Rockwell's request therefor, Rockwell
Collins will reimburse Rockwell (by wire transfer to the same bank account
referred to in the preceding sentence) for all Rockwell Collins Expenses paid
by Rockwell or any of its Subsidiaries before, at or after the Time of
Distribution (other than as previously reimbursed by Rockwell Collins pursuant
to the preceding sentence). Rockwell will, at the request of Rockwell Collins,
provide Rockwell Collins with appropriate documentation to support Rockwell
Collins Expenses required to be reimbursed to Rockwell pursuant to this
Section 6.03(b).
(c) Within ten days after the Distribution Date, Rockwell
Science Center will reimburse Rockwell (by wire transfer to Rockwell's bank
account at Mellon Bank, N.A., Pittsburgh, Pennsylvania, Account No. 102-3474)
for all amounts in respect of Rockwell Science Center Expenses paid by
Rockwell or any of its Subsidiaries (including members of the Rockwell Collins
Group and members of the Rockwell Science Center Group) before or at the Time
of Distribution and notified in writing by Rockwell to Rockwell Science Center
within five days after the Distribution Date. Promptly after Rockwell's
request therefor, Rockwell Science Center will reimburse Rockwell (by wire
transfer to the same bank account referred to in the preceding sentence) for
all Rockwell Science Center Expenses paid by Rockwell or any of its
Subsidiaries before, at or after the Time of Distribution (other than as
previously reimbursed by Rockwell Science Center pursuant to the preceding
sentence). Rockwell will, at the request of Rockwell Science Center, provide
Rockwell Science Center with appropriate documentation to support Rockwell
Science Center Expenses required to be reimbursed to Rockwell pursuant to this
Section 6.03(c).
(d) Except as otherwise set forth in any Transaction
Agreement, all out-of-pocket costs and expenses incurred following the Time of
Distribution in connection with
74
79
implementation of the transactions contemplated by the Transaction Agreements
will be charged to and paid by the party for whose benefit the expenses are
incurred, with any out-of-pocket expenses which cannot be allocated on such
basis to be split equally between Rockwell and Rockwell Collins.
SECTION 6.04 Governing Law. This Agreement will be governed by
and construed in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
SECTION 6.05 Notices. All notices, requests, claims, demands
and other communications required or permitted to be given hereunder will be
in writing and will be delivered by hand or telecopied, e-mailed or sent,
postage prepaid, by registered, certified or express mail or reputable
overnight courier service and will be deemed given when so delivered by hand
or telecopied, when e-mail confirmation is received if delivered by e-mail, or
three business days after being so mailed (one business day in the case of
express mail or overnight courier service). All such notices, requests,
claims, demands and other communications will be addressed as set forth below,
or pursuant to such other instructions as may be designated in writing by the
party to receive such notice:
(a) If to Rockwell:
Rockwell International Corporation
Firstar Center
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Mr. Michael A. Bless
Senior Vice President,
Finance and Planning and
Chief Financial Officer
Telecopy: (414) 212-5552
E-mail: mabless@corp.rockwell.com
75
80
with a copy to:
Rockwell International Corporation
Firstar Center
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: William J. Calise, Jr., Esq.
Senior Vice President,
General Counsel and
Secretary
Telecopy: (414) 212-5357
E-mail: wjcalise@corp.rockwell.com
(b) If to Rockwell Collins:
New Rockwell Collins, Inc.
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention: Lawrence A. Erickson
Senior Vice President and
Chief Financial Officer
Telecopy: (319) 295-3400
E-mail: laerickson@rockwellcollins.com
with a copy to:
New Rockwell Collins, Inc.
400 Rockwell Collins Road NE
Cedar Rapids, Iowa 52498
Attention: [ ]
Senior Vice President,
General Counsel and
Secretary
Telecopy: (319) [ ]
E-mail: [ ]@xxxxxxxxxxxxxxx.xxx
76
81
(c) If to Rockwell Science Center:
Rockwell Scientific Company LLC
1049 Camino Dos Rios
Thousand Oaks, California 91360
Attention: Derek Cheung
Vice President and Center Director
Telecopy: (805) 373-4775
E-Mail: dtcheung@rsc.rockwell.com
with a copy to:
Rockwell Scientific Company LLC
1049 Camino Dos Rios
Thousand Oaks, California 91360
Attention: Wayne A. Davey
Controller and Director Business Operations
Telecopy: (805) 373-4775
E-Mail: wadavey@rsc.rockwell.com
and with a copy to Rockwell and Rockwell Collins.
SECTION 6.06 Dispute Resolution. In the event that any dispute,
claim or controversy (collectively, a "dispute") arises out of or relates to
this Agreement, the Employee Matters Agreement or the Tax Allocation
Agreement, any provision of this Agreement, the Employee Matters Agreement or
the Tax Allocation Agreement or the breach, performance, enforcement or
validity or invalidity of any thereof, the Chief Financial Officers of the
parties to the dispute will attempt a good faith resolution of such dispute
within thirty days after receipt by the parties of written notice from any
party of such dispute. Should they be unable to resolve such dispute within
thirty days of receipt of such written notification, or within such other time
as they may agree, such dispute will be referred for resolution to the Chief
Executive Officers of the parties to the dispute. Should they be unable to
resolve such dispute within thirty days following such referral to them, or
within such other time as they may agree, the parties to the dispute will then
attempt in good faith to resolve such dispute by mediation in accordance with
the then-existing CPR Model Procedure for Mediation of Business Disputes,
promulgated by the CPR Institute for Dispute Resolution, New York City. If
such mediation is unsuccessful within sixty days after commencement thereof,
any party to the dispute may pursue any other remedies available to it.
SECTION 6.07 Consent to Jurisdiction. Each of Rockwell,
Rockwell Collins and Rockwell Science Center irrevocably submits to the
exclusive jurisdiction of (i) the Court of Chancery in and for the State of
Delaware and the Superior Court in and for the State of Delaware and (ii) the
United States District Court for the District of Delaware, for the purposes of
any suit, action or other proceeding arising out of this Agreement, the
Employee Matters
77
82
Agreement or the Tax Allocation Agreement or any transaction contemplated
thereby (and agrees not to commence any action, suit or proceeding relating
thereto except in such courts). Each of Rockwell, Rockwell Collins and
Rockwell Science Center further agrees that service of any process, summons,
notice or document hand delivered or sent by U.S. registered mail to such
party's respective address set forth in Section 6.05 will be effective service
of process for any action, suit or proceeding in Delaware with respect to any
matters to which it has submitted to jurisdiction as set forth in the
immediately preceding sentence. Each of Rockwell, Rockwell Collins and
Rockwell Science Center irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this
Agreement, the Employee Matters Agreement or the Tax Allocation Agreement or
the transactions contemplated thereby in (i) the Court of Chancery in and for
the State of Delaware and the Superior Court in and for the State of Delaware
or (ii) the United States District Court for the District of Delaware, 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. Notwithstanding the
foregoing, each party agrees that a final judgment in any action, suit or
proceeding so brought shall be conclusive and may be enforced by suit on the
judgment in any jurisdiction or in any other manner provided in law or in
equity.
SECTION 6.08 Amendments. This Agreement cannot be amended,
modified or supplemented except by a written agreement executed by each party
affected thereby.
SECTION 6.09 Assignment. No party to this Agreement will
convey, assign or otherwise transfer any of its rights or obligations under
this Agreement without the prior written consent of the other parties in their
sole and absolute discretion, except that, other than as expressly provided
herein, any party may (without obtaining any consent) assign any of its rights
hereunder to a successor to all or any part of its business. Any such
conveyance, assignment or transfer requiring the prior written consent of the
other parties which is made without such consent will be void ab initio. No
assignment of this Agreement will relieve the assigning party of its
obligations hereunder.
SECTION 6.10 Captions; Currency. The article, section and
paragraph captions herein and the table of contents hereto are for convenience
of reference only, do not constitute part of this Agreement and will not be
deemed to limit or otherwise affect any of the provisions hereof. Unless
otherwise specified, all references herein to numbered articles or sections
are to articles and sections of this Agreement and all references herein to
annexes or schedules are to annexes and schedules to this Agreement. Unless
otherwise specified, all references contained in this Agreement, in any annex
or schedule referred to herein or in any instrument or document delivered
pursuant hereto to dollars or "$" shall mean United States Dollars.
SECTION 6.11 Severability. If any provision of this Agreement
or the application thereof to any Person or circumstance is determined by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to Persons
or circumstances other than those as to which it has been held invalid or
unenforceable, will remain in full force and effect and will in no way be
affected, impaired or invalidated thereby. If the economic or legal substance
of the transactions contemplated hereby is affected in any manner adverse to
any party as a result thereof, the
78
83
parties will negotiate in good faith in an effort to agree upon a suitable and
equitable substitute provision to effect the original intent of the parties.
SECTION 6.12 Parties in Interest. This Agreement is binding
upon and is for the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement is not made for the benefit
of any Person not a party hereto, and no Person other than the parties hereto
or their respective successors and permitted assigns will acquire or have any
benefit, right, remedy or claim under or by reason of this Agreement, except
that the provisions of Sections 4.02, 4.03 and 4.04 hereof shall inure to the
benefit of the Persons referred to therein.
SECTION 6.13 Schedules. All annexes and schedules attached
hereto are hereby incorporated in and made a part of this Agreement as if set
forth in full herein. Capitalized terms used in the schedules hereto but not
otherwise defined therein will have the respective meanings assigned to such
terms in this Agreement.
SECTION 6.14 Termination. This Agreement may be terminated and
the Distribution abandoned at any time prior to the Time of Distribution by
and in the sole discretion of the Rockwell Board without the approval of
Rockwell Collins, Rockwell Science Center, or Rockwell's shareowners. In the
event of such termination, no party will have any liability of any kind to any
other party on account of such termination.
SECTION 6.15 Waivers; Remedies. The conditions to Rockwell's
obligation to consummate the Distribution are for the sole benefit of Rockwell
and may be waived in writing by Rockwell in whole or in part in Rockwell's
sole discretion. No failure or delay on the part of Rockwell, Rockwell Collins
or Rockwell Science Center in exercising any right, power or privilege
hereunder will operate as a waiver thereof, nor will any waiver on the part of
Rockwell, Rockwell Collins or Rockwell Science Center of any right, power or
privilege hereunder operate as a waiver of any other right, power or privilege
hereunder, nor will any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder. Subject to the
provisions of Section 6.06, the rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which the parties
may otherwise have at law or in equity.
SECTION 6.16 Further Assurances. From time to time after the
Distribution, as and when requested by any party hereto, each other party
shall execute and deliver, or cause to be executed and delivered, all such
documents and instruments and shall take, or cause to be taken, all such
actions as the requesting party may reasonably request to consummate the
transactions contemplated by the Transaction Agreements.
SECTION 6.17 Counterparts. This Agreement may be executed in
separate counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts will together constitute the same
agreement.
SECTION 6.18 Performance. Each party will cause to be performed
and hereby guarantees the performance of all actions, agreements and
obligations set forth herein to be performed by any Subsidiary or Affiliate of
such party.
79
84
SECTION 6.19 Currency Calculations. Following the Distribution
Date, for purposes of calculating the United States Dollar equivalent of any
amount payable under any Transaction Agreement which is denominated in a
currency other than United States Dollars, the New York foreign exchange
selling rate applicable to such currency will be used, as published in the
Wall Street Journal, New York Edition, for the second business day preceding
the earlier of the date such payment is due or the date such payment is made
(it being understood that this Section 6.19 shall not apply to the conversion
of foreign currency balances made as of the Distribution Date in accordance
with standard Rockwell accounting practices and procedures).
SECTION 6.20 Interpretation. Any reference to any federal,
state, local, or foreign law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. For
the purposes of this Agreement, (i) words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other gender as the context requires, (ii) the terms "hereof",
"herein", and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement and (iii) the word "including" and
words of similar import when used in this Agreement shall mean "including,
without limitation".
80
85
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties as of the date first
hereinabove written.
ROCKWELL INTERNATIONAL CORPORATION
By:
-------------------------------
Name:
Title:
NEW ROCKWELL COLLINS, INC.
By:
-------------------------------
Name:
Title:
ROCKWELL SCIENTIFIC COMPANY LLC
By:
-------------------------------
Name:
Title:
81
