EX-2.1 2 d530899dex21.htm FORM OF SEPARATION AND DISTRIBUTION AGREEMENT [FORM OF SEPARATION AND DISTRIBUTION AGREEMENT] by and between MURPHY OIL CORPORATION and MURPHY USA INC. Dated as of [ ], 2013 PAGE
EXHIBIT 2.1
[FORM OF SEPARATION AND DISTRIBUTION AGREEMENT]
by and between
XXXXXX OIL CORPORATION
and
XXXXXX USA INC.
Dated as of [ ], 2013
TABLE OF CONTENTS
PAGE | ||||
ARTICLE 1 | ||||
DEFINITIONS | ||||
Section 1.01. Definitions | 2 | |||
Section 1.02. Interpretation | 11 | |||
ARTICLE 2 | ||||
PRIOR TO THE DISTRIBUTION | ||||
Section 2.01. Information Statement; Listing | 12 | |||
Section 2.02. Restructuring | 12 | |||
Section 2.03. Transfers of Certain Other Assets and Liabilities | 12 | |||
Section 2.04. Transfers of Certain Assets to Third Parties | 13 | |||
Section 2.05. Agreement Relating To Consents Necessary To Transfer Assets and Liabilities | 14 | |||
Section 2.06. Intercompany Accounts | 14 | |||
Section 2.07. Intercompany Agreements | 15 | |||
Section 2.08. Bank Accounts; Cash Balances | 15 | |||
Section 2.09. Novation of Liabilities | 16 | |||
Section 2.10. Further Assurances and Consents | 18 | |||
ARTICLE 3 | ||||
DISTRIBUTION | ||||
Section 3.01. Conditions Precedent to Distribution | 18 | |||
Section 3.02. The Distribution | 20 | |||
Section 3.03. Fractional Shares | 20 | |||
Section 3.04. NO REPRESENTATIONS OR WARRANTIES | 21 | |||
ARTICLE 4 | ||||
INSURANCE MATTERS | ||||
Section 4.01. Insurance Prior to the Distribution Time | 21 | |||
Section 4.02. Ownership of Existing Policies and Programs | 22 | |||
Section 4.03. Acquisition and Maintenance of Post-Distribution Insurance by Xxxxxx USA | 22 | |||
Section 4.04. Rights Under Shared Policies | 22 | |||
Section 4.05. Administration and Reserves | 24 | |||
Section 4.06. Insurance Premiums | 25 | |||
Section 4.07. Agreement for Waiver of Conflict and Shared Defense | 25 | |||
Section 4.08. Duty to Mitigate | 25 | |||
Section 4.09. Non-Waiver of Rights to Coverage | 26 |
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ARTICLE 5 | ||||
ACCESS TO INFORMATION | ||||
Section 5.01. Access to Information | 26 | |||
Section 5.02. Litigation Cooperation | 27 | |||
Section 5.03. Reimbursement | 28 | |||
Section 5.04. Ownership of Information | 28 | |||
Section 5.05. Retention of Records | 28 | |||
Section 5.06. Confidentiality | 29 | |||
Section 5.07. Privileged Information | 30 | |||
ARTICLE 6 | ||||
RELEASE; INDEMNIFICATION | ||||
Section 6.01. Release of Pre-Distribution Claims | 31 | |||
Section 6.02. Xxxxxx USA Indemnification of the Xxxxxx Oil Group | 32 | |||
Section 6.03. Xxxxxx Oil Indemnification of Xxxxxx USA Group | 33 | |||
Section 6.04. Procedures | 33 | |||
Section 6.05. Calculation of Indemnification Amount | 35 | |||
Section 6.06. Contribution | 35 | |||
Section 6.07. Non-Exclusivity of Remedies | 35 | |||
Section 6.08. Survival of Indemnities | 36 | |||
ARTICLE 7 | ||||
MISCELLANEOUS | ||||
Section 7.01. Notices | 36 | |||
Section 7.02. Amendments; No Waivers | 37 | |||
Section 7.03. Expenses | 37 | |||
Section 7.04. Successors and Assigns | 37 | |||
Section 7.05. Governing Law | 37 | |||
Section 7.06. Counterparts; Effectiveness; Third-Party Beneficiaries | 37 | |||
Section 7.07. Entire Agreement | 38 | |||
Section 7.08. Tax Matters | 38 | |||
Section 7.09. Jurisdiction | 38 | |||
Section 7.10. WAIVER OF JURY TRIAL | 39 | |||
Section 7.11. Termination | 39 | |||
Section 7.12. Severability | 39 | |||
Section 7.13. Survival | 39 | |||
Section 7.14. Captions | 39 | |||
Section 7.15. Interpretation | 39 | |||
Section 7.16. Specific Performance | 39 | |||
Section 7.17. Performance | 40 |
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SCHEDULES | ||
Schedule 1 | Restructuring Plan | |
EXHIBITS | ||
Exhibit A | Employee Matters Agreement | |
Exhibit B | Tax Matters Agreement | |
Exhibit C | Transition Services Agreement | |
Exhibit D | Trademark Assignment Agreement | |
Exhibit E | Trademark License Agreement | |
Exhibit F | Lease Agreement | |
Exhibit G | Aircraft Maintenance Labor Pooling Agreement | |
Exhibit H | Airplane Interchange Agreement | |
Exhibit I | Hangar Rental Agreement |
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[FORM OF SEPARATION AND DISTRIBUTION AGREEMENT]
SEPARATION AND DISTRIBUTION AGREEMENT dated as of [ ], 2013 (the βAgreementβ) between Xxxxxx Oil Corporation, a Delaware corporation (βXxxxxx Oilβ), and Xxxxxx USA Inc., a Delaware corporation (βXxxxxx USAβ).
WHEREAS, Xxxxxx USA is a wholly owned subsidiary of Xxxxxx Oil;
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ARTICLE 1
βActionβ means any demand, claim, suit, action, arbitration, inquiry, investigation or other proceeding by or before any Governmental Authority or any arbitration or mediation tribunal.
βAffiliateβ means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such other Person. For the purposes of this definition, βcontrolβ means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms βcontrollingβ and βcontrolledβ have meanings correlative to the foregoing. Notwithstanding any provision of this Agreement to the contrary (except where the relevant provision states explicitly to the contrary), no member of the Xxxxxx Oil Group, on the one hand, and no member of the Xxxxxx USA Group, on the other hand, shall be deemed to be an Affiliate of the other.
βAgreementβ has the meaning set forth in the preamble.
βAircraft Maintenance Labor Pooling Agreementβ means the Aircraft Maintenance Labor Pooling Agreement between Xxxxxx Oil and Xxxxxx USA, dated as of the date hereof, substantially in the form of Exhibit G, as such agreement may be amended from time to time in accordance with its terms.
βAirplane Interchange Agreementβ means the Airplane Interchange Agreement between Xxxxxx Oil and Xxxxxx USA, dated as of the date hereof, substantially in the form of Exhibit H, as such agreement may be amended from time to time in accordance with its terms.
βAncillary Agreementβ means each of the Tax Matters Agreement, the Transition Services Agreement, the Employee Matters Agreement, the Trademark Assignment Agreement, the Trademark License Agreement, the Lease Agreement, the Aircraft Maintenance Labor Pooling Agreement, the Airplane Interchange Agreement and the Hangar Rental Agreement.
βApplicable Lawβ means, with respect to any Person, any federal, state, local or foreign law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling, directive, guidance, instruction, direction, permission, waiver, notice, condition, limitation, restriction or prohibition or other similar requirement enacted, adopted, promulgated, imposed, issued or applied by a Governmental Authority that is binding upon or applicable to such Person, its properties or assets or its business or operations, as amended unless expressly specified otherwise.
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βBusinessβ means, with respect to the Xxxxxx Oil Group, the Xxxxxx Oil Business and, with respect to the Xxxxxx USA Group, the Xxxxxx USA Business.
βBusiness Dayβ means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Applicable Law to close.
βCalumetβ means Calumet Specialty Products Partners, L.P. (together with any of its Affiliates to which it assigns any of its rights).
βCalumet Asset Purchase Agreementβ means that certain Asset Purchase Agreement, dated as of July 25, 2011, as amended from time to time, between Calumet and Xxxxxx Oil.
βClaimβ has the meaning set forth in Section 6.04(a).
βClaims Administrationβ means the processing of claims made under Xxxxxx Oil Policies, including the reporting of claims to the insurance carrier, management and defense of claims, and providing for appropriate releases upon settlement of claims.
βClaims Made Policiesβ has the meaning set forth in Section 4.04(a).
βCodeβ has the meaning set forth in the recitals to this Agreement.
βCommissionβ means the United States Securities and Exchange Commission.
βConfidential Informationβ means, with respect to a Group, (i) any proprietary information that is competitively sensitive, material or otherwise of value to the members of such Group and not generally known to the public, including product planning information, marketing strategies, financial information, information regarding operations, consumer and/or customer relationships, consumer and/or customer profiles, sales estimates, business plans and internal performance results relating to the past, present or future business activities of the members of such Group and the consumers, customers, clients and suppliers of the members of such Group; (ii) any proprietary scientific or technical information, design, invention, process, procedure, formula, or improvement that is commercially valuable and secret in the sense that its confidentiality affords any member of such Group a competitive advantage over its competitors; and (iii) all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, flow charts, databases, inventions, information, and trade secrets; in each case, related primarily to such Groupβs Business.
βDisposing Partyβ has the meaning set forth in Section 5.05.
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βDistributionβ has the meaning set forth in the recitals to this Agreement.
βDistribution Agentβ means Computershare Investor Services, LLC.
βDistribution Dateβ means [β], 2013, the date on which the Distribution shall be effected.
βDistribution Documentsβ means this Agreement and the Ancillary Agreements.
βDistribution Timeβ means the time at which the Distribution is effective on the Distribution Date, which shall be deemed to be 11:59 p.m., Eastern Daylight Time, on the Distribution Date.
βEmployee Matters Agreementβ means the Employee Matters Agreement between Xxxxxx Oil and Xxxxxx USA, dated as of the date hereof, substantially in the form of Exhibit A, as such agreement may be amended from time to time in accordance with its terms.
βEnvironmental Lawβ means any Applicable Law relating to pollution, protection or restoration of or prevention of harm to the environment or natural resources, or the effect on the environment of the use, handling, transportation, treatment, storage, disposal, release or discharge of, or any human exposure to, any toxic or hazardous materials.
βEnvironmental Liabilitiesβ means all Liabilities relating to, arising out of or resulting from the effect on the environment of the use, handling, transportation, treatment, storage, disposal, release or discharge of, or any human exposure to, any toxic or hazardous materials, Environmental Law or contract or agreement relating to any such matters (including related removal, remediation or cleanup costs, investigatory costs, response costs, natural resources damages, property damages, personal injury damages, costs of compliance and indemnity, contribution or similar obligations) and all costs and expenses, interest, fines, penalties or other monetary sanctions in connection therewith.
βExchange Actβ means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
βFIFO Basisβ means, with respect to the payment of Unrelated Claims pursuant to the same Shared Policy, the payment in full of each successful claim (regardless of whether a Xxxxxx Oil Insured Party or a Xxxxxx USA Insured Party is the claimant) in the order in which such successful claim is approved by the insurance carrier, until the limit of the applicable Shared Policy is met.
βForm 10β means the registration statement on Form 10 filed by Xxxxxx USA with the Commission to effect the registration of Xxxxxx USA Common Stock pursuant to the Exchange Act in connection with the Distribution, as such registration statement may be amended or supplemented from time to time.
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βFormer Businessβ means any corporation, partnership, entity, division, business unit, business or set of business operations that has been sold, conveyed, assigned, transferred or otherwise disposed of or divested (other than solely in connection with the Restructuring), in whole or in part, or the operations, activities or production of which has been discontinued, abandoned, completed or otherwise terminated, in whole or in part, in each case, by either Group prior to the Distribution Time.
βFormer Refineries Businessβ has the meaning set forth in the definition of βXxxxxx Oil Former Business.β
βGovernmental Authorityβ means any multinational, foreign, federal, state, local or other governmental, statutory or administrative authority, regulatory body or commission or any court, tribunal or judicial or arbitral authority which has any jurisdiction or control over either party (or any of their Affiliates).
βGroupβ means, as the context requires, the Xxxxxx USA Group or the Xxxxxx Oil Group.
βHangar Rental Agreementβ means the Hangar Rental Agreement between Xxxxxx Oil and Xxxxxx USA, dated as of the date hereof, substantially in the form of Exhibit I, as such agreement may be amended from time to time in accordance with its terms.
βIndemnified Partyβ has the meaning set forth in Section 6.04(a).
βIndemnifying Partyβ has the meaning set forth in Section 6.04(a).
βIndemniteesβ means, as the context requires, the Xxxxxx Oil Indemnitees or the Xxxxxx USA Indemnitees.
βInformation Statementβ means the Information Statement to be sent to each holder of Xxxxxx Oil Common Stock in connection with the Distribution.
βInsured Partyβ means a Xxxxxx Oil Insured Party or a Xxxxxx USA Insured Party.
βIntercompany Accountsβ has the meaning set forth in Section 2.06.
βIRSβ means the Internal Revenue Service.
βLease Agreementβ means the Lease Agreement for 000 Xxxxx Xxxxxx, Xx Xxxxxx, Xxxxxxxx between Xxxxxx Oil and Xxxxxx USA, dated as of the date hereof, substantially in the form of Exhibit F, as such agreement may be amended from time to time in accordance with its terms.
βLiabilitiesβ means any and all claims, debts, liabilities, losses and obligations, absolute or contingent, matured or not matured, liquidated or
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unliquidated, accrued or unaccrued, known or unknown, whenever arising, including all costs and expenses relating thereto, and including, without limitation, those debts, liabilities and obligations arising under this Agreement, any Applicable Law, any Action or threatened Action, any order or consent decree of any Governmental Authority or any award of any arbitrator of any kind, and those arising under any agreement, commitment or undertaking.
βLossesβ means, with respect to any Person, any and all damages, losses, liabilities and expenses incurred or suffered by such Person (including, without limitation, reasonable expenses of investigation and reasonable attorneysβ, accountantsβ, consultantsβ and other professionalsβ fees and expenses in connection with any and all Actions or threatened Actions and reasonable expenses in connection with the enforcement of the rights hereunder).
βMOUSAβ means Xxxxxx Oil USA, Inc.
βXxxxxx Oilβ has the meaning set forth in the preamble.
βXxxxxx Oil Accountsβ has the meaning set forth in Section 2.08.
βXxxxxx Oil Assumed Actionsβ has the meaning set forth in Section 5.02(b).
βXxxxxx Oil Businessβ means (i) the business conducted by the Xxxxxx Oil Group from time to time, whether before, on or after the Distribution (but excluding the Xxxxxx USA Business and any Xxxxxx USA Former Business) and (ii) the Xxxxxx Oil Former Business. For the avoidance of doubt, the Xxxxxx USA Contributed Assets, the Specified Calumet/Valero Contracts and any Other Calumet Transferred Operations will not be considered part of the Xxxxxx Oil Business.
βXxxxxx Oil Common Stockβ has the meaning set forth in the recitals to this Agreement.
βXxxxxx Oil Former Businessβ means (i) the Former Businesses previously owned, in whole or in part, or previously operated, in whole or in part, primarily by any member of the Xxxxxx Oil Group and (ii) all refineries (and related facilities, other assets or operations transferred prior to the Distribution Time in connection with the transfer of any such refineries) owned, in whole or in part, or operated, in whole or in part, prior to the Distribution Time by Xxxxxx Oil or any of its current or former Subsidiaries or other Affiliates (including, for this purpose, members of the Xxxxxx USA Group) (the βFormer Refineries Businessβ). For the avoidance of doubt, ethanol plants are not considered βrefineriesβ for purposes of clause (ii) of this definition.
βXxxxxx Oil Groupβ means Xxxxxx Oil and its Subsidiaries (other than any member of the Xxxxxx USA Group), including all predecessors to such Persons.
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βXxxxxx Oil Indemniteesβ has the meaning set forth in Section 6.02(a).
βXxxxxx Oil Insured Partyβ means any member of the Xxxxxx Oil Group that is named insured, additional named insured or insured under any Shared Policy.
βXxxxxx Oil Liabilitiesβ means (i) all Liabilities expressly delegated or allocated to, or assumed by, Xxxxxx Oil or any member of the Xxxxxx Oil Group under this Agreement or any Ancillary Agreement, including (A) all Liabilities arising in connection with the Xxxxxx Oil Assumed Actions and (B) all Liabilities to the extent relating to, or arising from or in connection with, the Milford Haven, Wales refinery and related facilities, including any purchase or sale of any interest therein, including any Liabilities of MOUSA under its guarantee of certain obligations under the Total Agreement; (ii) except as otherwise specifically provided in this Agreement or any Ancillary Agreement, all Liabilities (whether arising before, on or after the Distribution Date and whether based on facts occurring before, on or after the Distribution Date and including Environmental Liabilities) of or to the extent relating to, or arising from or in connection with, (A) the Xxxxxx Oil Business (including any sale or transfer thereof) or (B) except to the extent included as a Xxxxxx USA Liability pursuant to clause (i) or (ii)(A) of the definition thereof, the Xxxxxx Oil Group. No Liability shall be both a Xxxxxx Oil Liability and a Xxxxxx USA Liability, and in the event of any inconsistency or conflict that may arise in the application or interpretation of this definition or the definition of βXxxxxx USA Liabilitiesβ, for the purpose of determining what is and is not a Xxxxxx Oil Liability, the explicit delegation or allocation to, or assumption by, Xxxxxx Oil or any member of the Xxxxxx Oil Group under this Agreement or any Ancillary Agreement shall take priority over any more general textual provision of this Agreement that would otherwise operate to cause such Liability to be a Xxxxxx USA Liability. For the avoidance of doubt, except as otherwise specifically provided in this Agreement or any Ancillary Agreement, (x) the designation in this Agreement of Liabilities as βXxxxxx Oil Liabilitiesβ or βXxxxxx USA Liabilitiesβ is only for purposes of allocating such Liabilities as between the parties and their respective Subsidiaries and shall not affect any obligations to, or give rise to any rights of, any Third Parties and (y) all Liabilities of the Xxxxxx Oil Group or the Xxxxxx USA Group arising from or relating to the sale of any Xxxxxx Oil Former Business will be a Xxxxxx Oil Liability.
βXxxxxx Oil Policiesβ has the meaning set forth in Section 4.02.
βXxxxxx USAβ has the meaning set forth in the preamble.
βXxxxxx USA Accountsβ has the meaning set forth in Section 2.08
βXxxxxx USA Assumed Actionsβ has the meaning set forth in Section 5.02(a).
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βXxxxxx USA Businessβ means (i) the business conducted by the Xxxxxx USA Group from time to time, whether before, on or after the Distribution (excluding any Xxxxxx Oil Former Business), (ii) the Xxxxxx USA Former Business, (iii) the Xxxxxx USA Contributed Assets and (iv) the Specified Calumet/Valero Contracts.
βXxxxxx USA Common Stockβ has the meaning set forth in the recitals to this Agreement.
βXxxxxx USA Contributed Assetsβ has the meaning set forth on Schedule 1.
βXxxxxx USA Former Businessβ means (i) the Former Businesses previously owned, in whole or in part, or previously operated, in whole or in part, primarily by any member of the Xxxxxx USA Group and (ii) if, but only if, transferred prior to the Distribution Time to Calumet or any of its Affiliates, the so-called βNorthern Crude Gathering Systemβ (if so transferred prior to the Distribution Time, the βOther Calumet Transferred Operationsβ); provided that in no event will the Former Refineries Business be considered a Xxxxxx USA Former Business.
βXxxxxx USA Groupβ means Xxxxxx USA and its Subsidiaries as of (and, except where the context clearly indicates otherwise, after) the Distribution Time and after giving effect to the Restructuring, including all predecessors to such Persons.
βXxxxxx USA Indemniteesβ has the meaning set forth in Section 6.03.
βXxxxxx USA Insured Partyβ means any member of the Xxxxxx USA Group that is named insured, additional named insured or insured under any Shared Policy.
βXxxxxx USA Liabilitiesβ means, (i) all Liabilities expressly delegated or allocated to, or assumed by, Xxxxxx USA or any member of the Xxxxxx USA Group under this Agreement or any Ancillary Agreement, including all Liabilities arising in connection with the Xxxxxx USA Assumed Actions; and (ii) except as otherwise specifically provided in this Agreement or any Ancillary Agreement, all Liabilities (whether arising before, on or after the Distribution Date and whether based on facts occurring before, on or after the Distribution Date and including Environmental Liabilities) of or to the extent relating to, or arising from or in connection with, (A) the Xxxxxx USA Business (including any sale or transfer thereof) or (B) except to the extent included as a Xxxxxx Oil Liability pursuant to clause (i) or (ii)(A) of the definition thereof, the Xxxxxx USA Group. No Liability shall be both a Xxxxxx USA Liability and a Xxxxxx Oil Liability, and in the event of any inconsistency or conflict that may arise in the application or interpretation of this definition or the definition of βXxxxxx Oil Liabilitiesβ, for the purpose of determining what is and is not a Xxxxxx USA Liability, the
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explicit delegation or allocation to, or assumption by, Xxxxxx USA or any member of the Xxxxxx USA Group under this Agreement or any Ancillary Agreement shall take priority over any more general textual provision of this Agreement that would otherwise operate to cause such Liability to be a Xxxxxx Oil Liability. For the avoidance of doubt, except as otherwise specifically provided in this Agreement or any Ancillary Agreement, (x) the designation in this Agreement of Liabilities as βXxxxxx USA Liabilitiesβ or βXxxxxx Oil Liabilitiesβ is only for purposes of allocating such Liabilities as between the parties and their respective Subsidiaries and shall not affect any obligations to, or give rise to any rights of, any Third Parties and (y) all Liabilities of the Xxxxxx Oil Group or the Xxxxxx USA Group arising from or relating to the sale of any Xxxxxx USA Former Business will be a Xxxxxx USA Liability.
βNYSEβ means The New York Stock Exchange, Inc.
βOccurrence Based Policiesβ has the meaning set forth in Section 4.04(a).
βOther Calumet Transferred Operationsβ has the meaning set forth in the definition of βXxxxxx USA Former Business.β
βPersonβ means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a Governmental Authority.
βPrivilegeβ has the meaning set forth in Section 5.07(a).
βPrivileged Informationβ has the meaning set forth in Section 5.07(a).
βReceiving Partyβ has the meaning set forth in Section 5.05.
βRecord Dateβ means the close of business on [β], 2013, the date determined by the Board of Directors of Xxxxxx Oil as the record date for the Distribution.
βRelated Claimsβ means a claim or claims against a Shared Policy made by one or more Xxxxxx USA Insured Parties, on the one hand, and one or more Xxxxxx Oil Insured Parties, on the other hand, filed in connection with Losses suffered by either a Xxxxxx USA Insured Party or a Xxxxxx Oil Insured Party, as the case may be, arising out of the same underlying transaction or series of transactions or event or series of events that have also given rise to Losses suffered by a Xxxxxx Oil Insured Party or a Xxxxxx USA Insured Party, as the case may be, which Losses are the subject of a claim or claims by such Person against a Shared Policy.
βRepresentativesβ has the meaning set forth in Section 5.06.
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βRestructuringβ means the reorganization of certain businesses, assets and liabilities of the Xxxxxx Oil Group and the Xxxxxx USA Group to be completed before the Distribution Time, as described in Schedule 1.
βSecurities Actβ means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
βShared Policiesβ has the meaning set forth in Section 4.04(a).
βSpecified Calumet/Valero Contractsβ means (i) the Crude Supply Agreement dated September 30, 2011, as amended from time to time, by and between MOUSA and Calumet, (ii) the Throughput Agreement dated as of October 1, 2011, as amended from time to time, by and between MOUSA and Valero Marketing and Supply Company and (iii) the Pipeline Servitude Agreement by Valero to MOUSA dated September 29, 2011, as amended from time to time.
βSubsidiaryβ means, with respect to any Person, any other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
βTax Matters Agreementβ means the Tax Matters Agreement between Xxxxxx Oil and Xxxxxx USA, dated as of the date hereof, substantially in the form of Exhibit B, as such agreement may be amended from time to time in accordance with its terms.
βThird-Party Claimβ has the meaning set forth in Section 6.04(b).
βThird Partyβ means a Person that is not an Affiliate of the Xxxxxx USA Group or the Xxxxxx Oil Group.
βTrademark Assignment Agreementβ means the Trademark Assignment Agreement between Xxxxxx Oil and Xxxxxx USA, [to be dated as of the Distribution Date], substantially in the form of Exhibit D, as such agreement may be amended from time to time in accordance with its terms.
βTrademark License Agreementβ means the Trademark Assignment Agreement between Xxxxxx Oil and Xxxxxx USA, dated as of the date hereof, substantially in the form of Exhibit E, as such agreement may be amended from time to time in accordance with its terms.
βTransition Services Agreementβ means the Transition Services Agreement between Xxxxxx Oil and Xxxxxx USA, dated as of the date hereof, substantially in the form of Exhibit C, as such agreement may be amended from time to time in accordance with its terms.
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βUnrelated Claimsβ means a claim or claims against a Shared Policy that is not a Related Claim.
βUnreleased Xxxxxx Oil Liabilityβ has the meaning set forth in Section 2.09(d).
βUnreleased Xxxxxx USA Liabilityβ has the meaning set forth in Section 2.09(b).
βValeroβ means Valero Refining-Meraux LLC (together with any of its Affiliates to which it assigns any of its rights).
βValero Asset Purchase Agreementβ means that certain Asset Purchase Agreement, dated as of September 1, 2011, as amended from time to time, between Valero and Xxxxxx Oil.
Section 1.02. Interpretation. (a) In this Agreement, unless the context clearly indicates otherwise:
(i) words used in the singular include the plural and words used in the plural include the singular;
(ii) references to any Person include such Personβs successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement;
(iii) except as otherwise clearly indicated, reference to any gender includes the other gender;
(iv) the words βinclude,β βincludesβ and βincludingβ shall be deemed to be followed by the words βwithout limitationβ;
(v) reference to any Article, Section, Exhibit or Schedule means such Article or Section of, or such Exhibit or Schedule to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition;
(vi) the words βherein,β βhereunder,β βhereof,β βheretoβ and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof;
(vii) reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;
(viii) reference to any law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;
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(ix) relative to the determination of any period of time, βfromβ means βfrom and including,β βtoβ means βto and includingβ and βthroughβ means βthrough and includingβ;
(x) the titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement;
(xi) unless otherwise specified in this Agreement, all references to dollar amounts herein shall be in respect of lawful currency of the United States; and
(xii) any capitalized term used in an Exhibit or Schedule but not otherwise defined therein shall have the meaning set forth in this Agreement.
ARTICLE 2
On or prior to the Distribution Date:
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Xxxxxx Oil or such member of the Xxxxxx Oil Group in and to all assets, if any, held by any member of the Xxxxxx Oil Group that relate solely to the Xxxxxx USA Business (and not to the Xxxxxx Oil Business) and Xxxxxx USA or such Xxxxxx USA Designee shall assume and take transfer of all Liabilities to the extent associated with such assets and (b) Xxxxxx Oil and Xxxxxx USA shall, or shall cause the relevant member of the Xxxxxx USA Group to, assign, contribute, convey, transfer and deliver to Xxxxxx Oil or any Subsidiary of Xxxxxx Oil as of the Distribution Time designated by Xxxxxx Oil (a βXxxxxx Oil Designeeβ) all of the right, title and interest of Xxxxxx USA or such member of the Xxxxxx USA Group in and to all assets, if any, held by any member of the Xxxxxx USA Group that relate solely to the Xxxxxx Oil Business (and not to the Xxxxxx USA Business) and Xxxxxx Oil or such Xxxxxx Oil Designee shall assume and take transfer of all Liabilities to the extent associated with such assets. To the extent any assignment, contribution, conveyance, transfer, delivery or assumption of any asset or Liability of either Group as of the Distribution Time is not effected in accordance with this Section 2.03 prior to the Distribution Time for any reason (including as a result of the failure of the parties to identify it as being required to be transferred pursuant to this Section 2.03, but subject to Section 2.05), it shall be effected as promptly thereafter as practicable. For the avoidance of doubt, nothing contained in this Section 2.03 shall prevent or prohibit the transfer of stock.
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in accordance with Section 7.01 and be reasonably specific as to the applicable Intercompany Account and the amount thereof) to the applicable member of the other Group within 90 days of the Distribution Date, and any Intercompany Account that is not settled, or that a claim in respect thereof is not made in compliance with Section 2.06, within such 90 day period shall be deemed waived and released in accordance with Section 6.01 without any further action by either party.
(b) The provisions of Section 2.07(a) shall not apply to any of the following agreements, arrangements, commitments or understandings: (i) this Agreement and the Ancillary Agreements (and each other agreement or instrument expressly contemplated by this Agreement or any Ancillary Agreement to be entered into by any of the parties hereto or any of the members of their respective Groups); (ii) any agreements, arrangements, commitments or understandings to which any Person other than the parties hereto and the members of their respective Groups is a party; (iii) any Intercompany Accounts to the extent such Intercompany Accounts were not satisfied and/or settled in accordance with the first sentence of Section 2.06 (it being understood that such Intercompany Accounts shall be satisfied or settled in accordance with, but shall be subject to the time limitation set forth in, the second sentence of Section 2.06); and (iv) the agreements, arrangements, commitments and understanding set forth on Schedule [ ] and any other agreements, arrangements, commitments or understandings that this Agreement or any Ancillary Agreements expressly contemplate will survive the Distribution Date.
(b) Xxxxxx Oil and Xxxxxx USA each agrees to take, or cause the respective members of their respective Groups to take, at the Distribution Date (or
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such earlier date as Xxxxxx Oil and Xxxxxx USA may agree), all actions necessary to amend all contracts or agreements governing the Xxxxxx Oil Accounts so that such Xxxxxx Oil Accounts, if currently linked to a Xxxxxx USA Account, are de-linked from the Xxxxxx USA Accounts.
(c) It is intended that, following consummation of the actions contemplated by Sections 2.08(a) and 2.08(b), there will be in place a centralized cash management process pursuant to which the Xxxxxx USA Accounts will be managed centrally and funds collected will be transferred into one or more centralized accounts maintained by Xxxxxx USA.
(d) It is intended that, following consummation of the actions contemplated by Sections 2.08(a) and 2.08(b), there will continue to be in place a centralized cash management process pursuant to which the Xxxxxx Oil Accounts will be managed centrally and funds collected will be transferred into one or more centralized accounts maintained by Xxxxxx Oil.
(e) With respect to any outstanding payments initiated by Xxxxxx Oil, Xxxxxx USA, or any of their respective Subsidiaries prior to the Distribution Time, such outstanding payments shall be honored following the Distribution by the Person or Group owning the account from which the payment was initiated.
(f) As between Xxxxxx Oil and Xxxxxx USA (and the members of their respective Groups) all payments received after the Distribution Date by either party (or member of its Group) that relate to a business, asset or Liability of the other party (or member of its Group), shall be held by such party for the use and benefit of the party entitled thereto (at the expense of the party entitled thereto). Each party shall maintain an accounting of any such payments, and the parties shall have a monthly reconciliation, whereby all such payments received by each party are calculated and the net amount owed to Xxxxxx Oil or Xxxxxx USA shall be paid over with right of set-off. If at any time the net amount owed to either party exceeds $[β], an interim payment of such net amount owed shall be made to the party entitled thereto within three (3) Business Days of such amount exceeding $[β]. Notwithstanding the foregoing, neither Xxxxxx Oil nor Xxxxxx USA shall act as collection agent for the other party, nor shall either party act as surety or endorser with respect to non-sufficient funds checks or funds to be returned in a bankruptcy or fraudulent conveyance action.
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by providing a substitute letter of credit of like amount or substitute guaranty for any existing letter of credit or guaranty, respectively); provided, however, that neither Xxxxxx Oil nor Xxxxxx USA shall be obligated to contribute any capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation, except for a substitute letter of credit or substitute guaranty as referenced in the prior parenthetical) to any third Person from whom any such consent, substitution, approval, amendment or release is requested.
(b) If Xxxxxx Oil or Xxxxxx USA is unable to obtain, or to cause to be obtained, any such required consent, substitution, approval, amendment or release and the applicable member of the Xxxxxx Oil Group continues to be bound by such agreement, lease, license or other Liability (each, an βUnreleased Xxxxxx USA Liabilityβ), Xxxxxx USA shall, to the extent not prohibited by Applicable Law, as indemnitor, guarantor, agent or subcontractor for such member of the Xxxxxx Oil Group, as the case may be, (i) on a timely basis pay, perform and discharge fully all the Liabilities of such member of the Xxxxxx Oil Group that constitute Unreleased Xxxxxx USA Liabilities and (ii) use its commercially reasonable efforts to effect such payment, performance, or discharge prior to any demand for such payment, performance or discharge is permitted to be made by the obligee thereunder on any member of the Xxxxxx Oil Group. If and when such consent, substitution, approval, amendment or release shall be obtained or the Unreleased Xxxxxx USA Liabilities shall otherwise become assignable or able to be novated, Xxxxxx Oil shall promptly assign, or cause to be assigned, and Xxxxxx USA or the applicable member of the Xxxxxx USA Group shall assume, such Unreleased Xxxxxx USA Liabilities without exchange of further consideration.
(c) Each of Xxxxxx Oil and Xxxxxx USA, at the request of the other, shall endeavor, if reasonably practicable, to obtain, or to cause to be obtained, if reasonably practicable, any consent, substitution, approval or amendment required to novate or assign all obligations under agreements, leases, licenses and other Liabilities of any nature whatsoever that constitute Xxxxxx Oil Liabilities, or to obtain in writing the unconditional release of all parties to such arrangements other than any member of the Xxxxxx Oil Group, so that, in any such case, the members of the Xxxxxx Oil Group will be solely responsible for the Xxxxxx Oil Liabilities (including by providing a substitute letter of credit of like amount or substitute guaranty for any existing letter of credit or guaranty, respectively); provided, however, that neither Xxxxxx Oil nor Xxxxxx USA shall be obligated to contribute any capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation, except for a substitute letter of credit or substitute guaranty as referenced in the prior parenthetical) to any third Person from whom any such consent, substitution, approval, amendment or release is requested. Notwithstanding the foregoing, neither Xxxxxx Oil nor Xxxxxx USA shall be required to obtain, or to cause to be obtained, any consent, substitution, approval or amendment required to novate or assign any obligations or other Liabilities under or in respect of that certain Sale
17
and Purchase of the Milford Haven Refinery Business, dated as of October 3, 2007, as amended from time to time, among Total UK Limited, Total Milford Haven Refinery Limited, Murco Petroleum Limited and MOUSA (the βTotal Agreementβ); provided that, for the avoidance of doubt, all such obligations shall be Xxxxxx Oil Liabilities under this Agreement.
(d) If Xxxxxx Oil or Xxxxxx USA is unable to obtain, or to cause to be obtained, any such required consent, substitution, approval, amendment or release and the applicable member of the Xxxxxx Oil Group continues to be bound by such agreement, lease, license or other Liability (each, an βUnreleased Xxxxxx Oil Liabilityβ), Xxxxxx Oil shall, to the extent not prohibited by Applicable Law, as indemnitor, guarantor, agent or subcontractor for such member of the Xxxxxx Oil Group, as the case may be, (i) on a timely basis pay, perform and discharge fully all the obligations or other Liabilities of such member of the Xxxxxx Oil Group that constitute Unreleased Xxxxxx Oil Liabilities and (ii) use its commercially reasonable efforts to effect such payment, performance, or discharge prior to any demand for such payment, performance or discharge is permitted to be made by the obligee thereunder on any member of the Xxxxxx USA Group. If and when such consent, substitution, approval, amendment or release shall be obtained or the Unreleased Xxxxxx USA Liabilities shall otherwise become assignable or able to be novated, Xxxxxx USA shall promptly assign, or cause to be assigned, and Xxxxxx Oil or the applicable member of the Xxxxxx Oil Group shall assume, such Unreleased Xxxxxx Oil Liabilities without exchange of further consideration.
ARTICLE 3
(i) the Board of Directors of Xxxxxx Oil shall be satisfied that the Distribution will be made out of surplus within the meaning of Section 170 of the General Corporation Law of the State of Delaware;
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(ii) the Board of Directors of Xxxxxx Oil shall have approved the Distribution and shall not have abandoned the Distribution or terminated this Agreement at any time prior to the Distribution;
(iii) the Restructuring shall have been completed;
(iv) the Form 10 shall have been filed with the Commission and declared effective by the Commission, no stop order suspending the effectiveness of the Form 10 shall be in effect, no proceedings for such purpose shall be pending before or threatened by the Commission, and the Information Statement shall have been mailed to holders of the Xxxxxx Oil Common Stock as of the Record Date;
(v) all actions and filings necessary or appropriate under applicable federal, state or foreign securities or βblue skyβ laws and the rules and regulations thereunder shall have been taken and, where applicable, become effective or been accepted;
(vi) the Xxxxxx USA Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(vii) the Board of Directors of Xxxxxx USA, as named in the Information Statement, shall have been duly elected, and the amended and restated certificate of incorporation and the amended and restated bylaws of Xxxxxx USA, each in substantially the form filed as an exhibit to the Form 10, shall be in effect;
(viii) each of the Ancillary Agreements shall have been duly executed and delivered by the parties thereto;
(ix) Xxxxxx Oil shall have received a private letter ruling from the IRS and an opinion of Xxxxx Xxxx & Xxxxxxxx LLP (neither of which shall have been revoked or modified in any material respect), in each case, reasonably satisfactory to Xxxxxx Oil, confirming that the Distribution will be tax free to the stockholders of Xxxxxx Oil for United States federal income tax purposes;
(x) no Applicable Law shall have been adopted, promulgated or issued that prohibits the consummation of the Distribution or any of the other transactions contemplated hereby;
(xi) any material governmental approvals and consents and any material permits, registrations and consents from Third Parties, in each case, necessary to effect the Distribution and to permit the operation of the Xxxxxx USA Business after the Distribution Date substantially as it is conducted at the date hereof shall have been obtained;
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(xii) a credit facility shall have been made available to Xxxxxx USA by its lenders on terms and in an amount satisfactory to Xxxxxx Oil;
(xiii) no event or development shall have occurred or exist that, in the judgment of the Board of Directors of Xxxxxx Oil, in its sole discretion, makes it inadvisable to effect the Distribution or the other transactions contemplated hereby.
Each of the foregoing conditions is for the sole benefit of Xxxxxx Oil and shall not give rise to or create any duty on the part of Xxxxxx Oil or its Board of Directors to waive or not to waive any such condition or to effect the Distribution, or in any way limit Xxxxxx Oilβs rights of termination as set forth in Section 7.11 or alter the consequences of any termination from those specified in Section 7.11. Any determination made by Xxxxxx Oil on or prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 3.01 shall be conclusive and binding on the parties.
(b) Subject to the terms and conditions set forth in this Agreement, (i) on or prior to the Distribution Date, Xxxxxx Oil shall take such steps as are reasonably necessary or appropriate to permit the Distribution by the Distribution Agent of validly issued, fully paid and nonassessable shares of Xxxxxx USA Common Stock, registered in book-entry form through the registration system, (ii) the Distribution shall be effective at the Distribution Time, and (iii) Xxxxxx Oil shall instruct the Distribution Agent to distribute, on or as soon as practicable after the Distribution Date, to each holder of record of Xxxxxx Oil Common Stock as of the Record Date, by means of a pro rata dividend, [β] share of Xxxxxx USA Common Stock for every [β] shares of Xxxxxx Oil Common Stock so held. Following the Distribution Date, Xxxxxx USA agrees to provide all book-entry transfer authorizations for shares of Xxxxxx USA Common Stock that Xxxxxx Oil or the Distribution Agent shall require (after giving effect to Sections 3.03 and 3.04) in order to effect the Distribution.
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Common Stock allocable to each holder of Xxxxxx Oil Common Stock as of the Record Date. Upon the determination by the Distribution Agent of such numbers of whole shares and fractional shares, as soon as practicable on or after the Distribution Date, the Distribution Agent, acting on behalf of the holders thereof, shall aggregate the fractional shares into whole shares and shall sell the whole shares obtained thereby for cash on the open market (with the Distribution Agent, in its sole discretion, determining when, how and through which broker-dealer(s) and at which price(s) to make such sales) and shall thereafter promptly distribute to each such holder entitled thereto (pro rata based on the fractional share such holder would have been entitled to receive in the Distribution) the resulting aggregate cash proceeds, after making appropriate deductions of the amounts required to be withheld for United States federal income tax purposes, if any, and after deducting an amount equal to all brokerage fees and commissions, transfer taxes and other costs attributed to the sale of shares pursuant to this Section 3.03. Neither Xxxxxx Oil nor Xxxxxx USA will be required to guarantee any minimum sale price for the fractional shares. Recipients of cash in lieu of fractional shares will not be entitled to any interest on the amounts of payments made in lieu of fractional shares.
ARTICLE 4
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agree, for itself and on behalf of the Xxxxxx USA Group, that the Xxxxxx Oil Group shall not have any Liability whatsoever to the Xxxxxx USA Group as a result of the insurance policies, insurance contracts and claim administration contracts and practices related to the foregoing of the Xxxxxx Oil Group in effect at any time prior to the Distribution Time, including as a result of the level or scope of any such insurance policies, insurance contracts, claim administration contracts, the creditworthiness of any insurance carrier, the terms and conditions of any policy or contract and the adequacy or timeliness of any notice, or lack thereof, to any insurance carrier, bank trustee for any insurer, scheme administrator for any insurer, or claims administrator with respect to any actual claim or potential claim or otherwise.
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Group will have the right to assert and prosecute and/or continue to prosecute claims for any Losses with respect to the Xxxxxx USA Business under Xxxxxx Oil Policies that cover any member of the Xxxxxx USA Group and/or any or all of the Xxxxxx USA Business within the definition of the named insured, additional named insured, additional insured or insured (excluding, for the avoidance of doubt, any group health and welfare insurance policies) (βShared Policiesβ) with Third Party insurers that are βoccurrence basedβ insurance policies (such Shared Policies, βOccurrence Based Policiesβ) arising out of insured occurrences occurring from the date coverage thereunder first commenced until the Distribution Time to the extent that the terms and conditions of any such Occurrence Based Policies and agreements relating thereto so allow and (ii) Xxxxxx USA and the other members of the Xxxxxx USA Group will have the right to continue to prosecute claims with respect to the Xxxxxx USA Business under Shared Policies with Third Party insurers that are made under liability insurance policies written on a βclaims madeβ basis (such Shared Policies, βClaims Made Policiesβ) arising out of insured incidents occurring from the date coverage thereunder first commenced until the Distribution Time 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 clauses (i) and (ii), (A) subject to Section 4.04(c), the Xxxxxx Oil Group may, at any time, without liability or obligation to the Xxxxxx USA Group, amend, commute, terminate, buy-out, extinguish liability under or otherwise modify any Shared Policies (and such claims shall be subject to any such amendments, commutations, terminations, buy-outs, extinguishments and modifications); (B) such claims will be subject to (and recovery thereon will be reduced by the amount of) any applicable deductibles, retentions or self-insurance provisions, and, with respect to any such deductibles, retentions or self-insurance provisions which require a payment by a member of the Xxxxxx Oil Group in respect thereof, Xxxxxx USA shall reimburse such member of the Xxxxxx Oil Group for a pro rata portion of such payment based on Xxxxxx USAβs interest in such claim; (C) Xxxxxx USA shall be responsible for and shall pay any claims handling expenses or residual Liability arising from such claims and (D) such claims will be subject to exhaustion of existing sublimits and aggregate limits as provided in Section 4.04(d).
(b) Xxxxxx Oil will use reasonable efforts to assist Xxxxxx USA in asserting claims and establishing its right to coverage under applicable Shared Policies if so requested by Xxxxxx USA in writing (so long as all of the Xxxxxx Oil Groupβs out-of-pocket expenses in connection therewith are promptly paid by Xxxxxx USA following receipt of an invoice for such expenses), but Xxxxxx Oil will not be otherwise obligated to negotiate, investigate, defend, settle or otherwise handle such claims on behalf of Xxxxxx USA. No member of the Xxxxxx Oil Group will bear any Liability for the failure of an insurer to pay any claim under any Shared Policy. It is understood that any Claims Made Policies may not provide any coverage to the Xxxxxx USA Group for incidents occurring prior to the Distribution Time but that are asserted with the insurance carrier after the Distribution Time.
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(c) In the event that after the Distribution Time Xxxxxx Oil proposes to amend, commute, terminate, buy-out, extinguish liability under or otherwise modify any Shared Policies, in respect of periods of coverage prior to the Distribution Time, under which Xxxxxx USA, the Xxxxxx USA Business or the other members of the Xxxxxx USA Group has or may in the future have rights to assert claims pursuant to this Article 4 in a manner that would adversely affect any such rights of Xxxxxx USA, the Xxxxxx USA Business or any of the other members of the Xxxxxx USA Group, (i) Xxxxxx Oil will, if such proposed action would be material to the Xxxxxx USA Group, give Xxxxxx USA prior notice thereof and consult with Xxxxxx USA with respect to such action and (ii) Xxxxxx Oil will pay to Xxxxxx USA its equitable share (as reasonably determined by Xxxxxx Oil), if any, of any net proceeds actually received by Xxxxxx Oil from the insurer under the applicable Shared Policy as a result of such action by Xxxxxx Oil (after deducting Xxxxxx Oilβs out-of-pocket expenses incurred in connection with such action).
(d) To the extent that the limits of any Shared Policy preclude payment in full of Unrelated Claims filed by any member of the Xxxxxx Oil Group, on the one hand, and any member of the Xxxxxx USA Group, on the other hand, the insurance proceeds available under such Shared Policy shall be paid to Xxxxxx Oil and/or Xxxxxx USA, as applicable, on a FIFO Basis. In the event that any member of the Xxxxxx Oil Group, on the one hand, and any member of the Xxxxxx USA Group, on the other hand, files Related Claims under any Shared Policy, each of Xxxxxx Oil and Xxxxxx USA shall receive a pro rata amount of the available insurance proceeds, based on the relationship the Loss incurred by each such party bears to the total Loss to both such parties from the occurrence or event underlying the Related Claims.
(e) In no event (except as provided in Section 4.04(c) or Section 4.04(d)) will any member of the Xxxxxx Oil Group have any liability or obligation whatsoever to any member of the Xxxxxx USA Group if any Shared Policy is terminated or otherwise ceases to be in effect for any reason, is unavailable or inadequate to cover any Liability of any member of the Xxxxxx USA Group for any reason whatsoever or is not renewed or extended beyond the current expiration date.
(b) From and after the Distribution Time, the Xxxxxx USA Group will be responsible for the Claims Administration with respect to claims of the Xxxxxx USA Group under Shared Policies, and Xxxxxx Oil shall provide appropriate instructions to the applicable insurance brokers under the Shared Policies to facilitate Claims Administration by Xxxxxx USA. Xxxxxx USA shall provide advance notice to Xxxxxx Oil of any such claims.
(c) Each party agrees to consider in good faith (but shall have no obligation to accept) any requests by the other party to provide assistance to, and cooperate with, such party or any member of its Group with respect to the Claims Administration referred to in Sections 4.05(a) and 4.05(b). None of the members of either Group and their respective directors, officers, agents and employees shall have any liability, whether direct or indirect, in contract or tort or otherwise, to any Person for or in connection with the provision of such assistance or cooperation. All out-of-pocket expenses incurred by either party or any member of its Group in providing any such assistance or cooperation shall be reimbursed promptly by the other party or any member of its Group.
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ARTICLE 5
(b) Without limiting the generality of the foregoing, until the end of the first full Xxxxxx USA fiscal year occurring after the Distribution Date (and for a reasonable period of time afterwards as required for each party to prepare consolidated financial statements or complete a financial statement audit for the fiscal year during which the Distribution Date occurs), each party shall use reasonable efforts to cooperate with the other partyβs information requests to enable the other party to meet its timetable for dissemination of its earnings releases and financial statements and enable such other partyβs auditors timely to complete their audit of the annual financial statements and review of the quarterly financial statements.
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(b) Effective as of the Distribution Time, the applicable member of the Xxxxxx Oil Group shall assume and thereafter be responsible for all Liabilities of either Group that may result from the Xxxxxx Oil Assumed Actions and, subject to Section 6.04(c), all fees and costs relating to the defense of the Xxxxxx Oil Assumed Actions, including attorneysβ, accountantsβ, consultantsβ and other professionalsβ fees and expenses that have been incurred prior to the Distribution Time and are unpaid as of or after the Distribution Time, or, that are incurred on or after the Distribution Time. βXxxxxx Oil Assumed Actionsβ means those Actions primarily related to the Xxxxxx Oil Business, including those in which any member of the Xxxxxx USA Group or any Affiliate of a member of the Xxxxxx USA Group is a defendant or the party against whom the claim or investigation is directed. If any member of the Xxxxxx USA Group has any rights or claims against a Third Party insurer or other Third Party in connection with or relating to any Xxxxxx Oil Assumed Action, such member shall, subject to Section 2.05, transfer and assign to the applicable member of the Xxxxxx Oil Group all such rights or claims and cooperate with the Xxxxxx Oil Group in connection with the enforcement and collection thereof.
(c) Each party agrees that at all times from and after the Distribution Time if an Action relating primarily to its Business is commenced by a Third Party naming a member of each Group as defendants thereto, then such action shall be deemed to be a Xxxxxx USA Assumed Action (in the case of an Action primarily related to the Xxxxxx USA Business) or a Xxxxxx Oil Assumed Action (in the case of an Action primarily related to the Xxxxxx Oil Business) and the party as to which the Action primarily relates shall use its reasonable efforts to cause the other party or member of its Group to be removed from such Action.
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(d) The parties agree that at all times from and after the Distribution Time, if an Action which does not relate primarily to either partyβs Business is commenced by a Third Party naming a member of each Group as a defendant thereto, then the parties shall cooperate and consult to the extent necessary or advisable with respect to such Action.
(e) Each Group shall use reasonable efforts to make available to the other Group and its attorneys, accountants, consultants and other designated representatives, upon written request, its directors, officers, employees and representatives as witnesses, and shall otherwise cooperate with the other Group, to the extent reasonably requested in connection with any Action arising out of either Groupβs Business prior to the Distribution Time in which the requesting Group may from time to time be involved.
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promptly arrange for the delivery of such of the information as was requested at the expense of the Receiving Party; provided that in the event that the Disposing Party reasonably determines that any such provision of information would violate any Applicable Law or agreement to which such party or member of its Group is a party, or waive any attorney-client privilege applicable to such party or any member of its Group, the parties shall use reasonable efforts to permit the prompt compliance with such request in a manner that avoids any such harm or consequence. Any records or documents that were subject to a litigation hold prior to the Distribution Date must be retained by the applicable party until such party or member of its Group is notified by the other party that the litigation hold is no longer in effect.
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their Representatives may furnish only that portion of the information which it concludes, after consultation with counsel, is legally required to be disclosed and will exercise its reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such information. Each party agrees to be responsible for any breach of this Section 5.06 by it, the members of its Group and its and their Representatives.
(b) Upon receipt by a party or any member of such partyβs Group of any subpoena, discovery or other request that calls for the production or disclosure of Privileged Information of the other party or a member of its Group, such party shall promptly notify the other party of the existence of the request and shall provide the other party a reasonable opportunity to review the information and to assert any rights it or a member of its Group may have under this Section 5.07 or otherwise to prevent the production or disclosure of such Privileged Information. Each party agrees that neither it nor any member of its Group will produce or disclose any information that may be covered by a Privilege of the party or a member of its Group under this Section 5.07 unless (i) the other party has provided its written consent to such production or disclosure (which consent shall not be unreasonably withheld) or (ii) a court of competent jurisdiction has entered an order finding that the information is not entitled to protection under any applicable Privilege or otherwise requires disclosure of such information.
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ARTICLE 6
(a) Except (i) as provided in Section 6.01(b) and (ii) as otherwise expressly provided in this Agreement or any Ancillary Agreement, each party hereto does hereby, on behalf of itself and each member of its Group, and each of their successors and assigns, release and forever discharge the other party and the other members of such partyβs Group, and their respective successors and assigns, and all Persons who at any time prior to the Distribution Time have been directors, officers or employees of such other party or any member of its Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns (collectively, the βReleased Partiesβ), from any and all demands, Actions and Liabilities whatsoever, whether at law or in equity (including any right of contribution or any right pursuant to any Environmental Law whether now or hereinafter in effect), whether arising under any contract or agreement, by operation of law or otherwise (and including for the avoidance of doubt, those arising as a result of the negligence, strict liability or any other liability under any theory of law or equity of, or any violation of law by any Released Party), existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution Date, including in connection with the transactions and all other activities to implement the Distribution. Xxxxxx Oil shall cause each of the other members of the Xxxxxx Oil Group to, effective as of the Distribution Time, release and forever discharge each of the Xxxxxx USA Indemnitees as and to the same extent as the release and discharge provided by Xxxxxx Oil pursuant to the foregoing provisions of this Section 6.01(a). Xxxxxx USA shall cause each of the other members of the Xxxxxx USA Group to, effective as of the Distribution Time, release and discharge each of the Xxxxxx Oil Indemnitees as and to the same extent as the release and discharge provided by Xxxxxx USA pursuant to the foregoing provisions of this Section 6.01(a).
(b) Nothing contained in Section 6.01(a) shall impair any right of any Person identified in Section 6.01(a) to enforce this Agreement or any Ancillary Agreement. Nothing contained in Section 6.01(a) shall release or discharge any Person from:
(i) any Liability assumed, transferred, assigned, retained or allocated to that Person in accordance with, or any other Liability of that Person under, this Agreement or any of the Ancillary Agreements;
(ii) any Liability that is expressly specified in this Agreement (including Section 2.06 and Section 2.07) or any Ancillary Agreement to continue after the Distribution Time, but subject to any limitation set forth in this Agreement (including Section 2.06 and Section 2.07) or any Ancillary Agreement relating specifically to such Liability; or
(iii) any Liability the release of which would result in the release of any Person other than a member of the Xxxxxx Oil Group or any related Released Party; provided, however, that the parties hereto
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agree not to bring or allow their respective Subsidiaries to bring suit against the other party or any related Released Party with respect to any such Liability.
In addition, nothing contained in Section 6.01(a) shall release any party or any member of its Group from honoring its existing obligations to indemnify, or advance expenses to, any Person who was a director, officer or employee of such party or any member of its Group, at or prior to the Distribution Time, to the extent such Person was entitled to such indemnification or advancement of expenses pursuant to then-existing obligations; provided, however, that to the extent applicable, Section 6.02 hereof shall determine whether any party shall be required to indemnify the other or a member of its Group in respect of such Liability.
(c) No party hereto shall make, nor permit any member of its Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or indemnification, against the other party, or any related Released Party, with respect to any Liability released pursuant to Section 6.01(a).
(d) It is the intent of each of the parties hereto by virtue of the provisions of this Section 6.01 to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Distribution Date between members of the Xxxxxx Oil Group, on the one hand, and members of the Xxxxxx USA Group, on the other hand, (including any contractual agreements or arrangements existing or alleged to exist between the parties on or before the Distribution Date), except as expressly set forth in Section 6.01(b) or as expressly provided in this Agreement or any Ancillary Agreement. At any time, at the reasonable request of either Xxxxxx Oil or Xxxxxx USA, the other party hereto shall execute and deliver (and cause its respective Subsidiaries to execute and deliver) releases reflecting the provisions hereof.
(b) Except to the extent set forth in Section 6.03(b), effective as of and after the Distribution Time, Xxxxxx USA shall indemnify, defend and hold
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harmless each of the Xxxxxx Oil Indemnitees and each Person, if any, who controls any Xxxxxx Oil Indemnitee within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all Losses caused by any untrue statement or alleged untrue statement of a material fact contained in the Form 10 or any amendment thereof or the Information Statement (as amended or supplemented if Xxxxxx USA shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) Effective as of and after the Distribution Time, Xxxxxx Oil shall indemnify, defend and hold harmless each of the Xxxxxx USA Indemnitees and each Person, if any, who controls any Xxxxxx USA Indemnitee within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all Losses caused by any untrue statement or alleged untrue statement of a material fact contained in the Form 10 or any amendment thereof or the Information Statement (as amended or supplemented if Xxxxxx USA shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such Losses are caused by any such untrue statement or omission or alleged untrue statement or omission arising out of information set forth on Schedule [ ].
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(b) The Indemnifying Party shall be entitled to participate in the defense of any Claim asserted by any Third Party (βThird-Party Claimβ) and, subject to the limitations set forth in this Section 6.04, if it so notifies the Indemnified Party no later than 30 days after receipt of the notice described in Section 6.04(a), shall be entitled to control and appoint lead counsel for such defense, in each case at its expense. If the Indemnifying Party does not, the Indemnified Party shall have the right to defend or contest such Third-Party Claim through counsel chosen by the Indemnified Party reasonably acceptable to the Indemnifying Party, subject to the provisions of this Section 6.04. The Indemnified Party shall provide the Indemnifying Party and such counsel with such information regarding such Third-Party Claim as either of them may reasonably request (which request may be general or specific).
(c) If the Indemnifying Party shall assume the control of the defense of any Third-Party Claim in accordance with the provisions of this Section 6.04, (i) the Indemnifying Party shall obtain the prior written consent of the Indemnified Party (which shall not be unreasonably withheld) before entering into any settlement of such Third-Party Claim, if the settlement does not release the Indemnified Party from all liabilities and obligations with respect to such Third-Party Claim or the settlement imposes injunctive or other equitable relief against the Indemnified Party or any of its related Indemnitees or is otherwise materially prejudicial to any such Person and (ii) the Indemnified Party shall be entitled to participate in (but not control) the defense of such Third-Party Claim and, at its own expense, to employ separate counsel of its choice for such purpose; provided that in the event of a conflict of interest between the Indemnifying Party and the applicable Indemnified Party, the reasonable fees and expenses of such separate counsel shall be at the Indemnifying Partyβs expense.
(d) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third-Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.
(e) Each Indemnified Party shall use reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Losses payable under Section 6.02 or Section 6.03 and the reasonable expenses incurred in connection therewith will be treated as Losses subject to indemnification hereunder.
(f) If any Third Party Claim shall be brought against a member of each Group, then such Action shall be deemed to be a Xxxxxx USA Assumed Action or a Xxxxxx Oil Assumed Action in accordance with Sections 5.02(a) and 5.02(b), to the extent applicable, and the related party shall be deemed to be the Indemnifying Party for the purposes of this Article 6. In the event of any Action in which the Indemnifying Party is not also named defendant, at the request of either the Indemnified Party or the Indemnifying Party, the parties will use reasonable efforts to substitute the Indemnifying Party or its applicable Affiliate for the named defendant in the Action.
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Section 6.05. Calculation of Indemnification Amount. Any indemnification amount pursuant to Section 6.02 or Section 6.03 shall be paid (i) net of any amounts recovered by the Indemnified Party under applicable Third Party insurance policies or from any other Third Party alleged to be responsible therefor, and (ii) taking into account any tax benefit actually realized and any tax cost incurred by the Indemnified Party arising from the incurrence or payment of the relevant Losses. Xxxxxx Oil and Xxxxxx USA agree that, for federal income tax purposes, any payment made pursuant to this Article 6 will be treated as an adjustment to the contributions to MOUSA, occurring immediately prior to the Distribution. If the Indemnified Party receives any amounts under applicable Third Party insurance policies, or from any other Third Party alleged to be responsible for any Losses, subsequent to an indemnification payment by the Indemnifying Party in respect thereof, then such Indemnified Party shall promptly reimburse the Indemnifying Party for any payment made by such Indemnifying Party in respect thereof up to the amount received by the Indemnified Party from such Third Party insurance policy or Third Party, as applicable. The Indemnifying Party shall not be liable for any Losses under Section 6.02 or Section 6.03 to the extent such Losses are special, indirect, incidental, consequential or punitive damages or lost profits (other than such Losses paid to Third Parties).
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ARTICLE 7
If to Xxxxxx Oil to:
Xxxxxx Oil Corporation
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xx Xxxxxx, Xxxxxxxx 00000
Attn:
Facsimile:
with a copy to:
Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Facsimile:
If to Xxxxxx USA to:
Xxxxxx USA Inc.
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xx Xxxxxx, Xxxxxxxx 00000
Attn:
Facsimile:
with a copy to:
Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Facsimile:
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or such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other party hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.
(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Applicable Law.
Section 7.05. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Arkansas, without regard to the conflicts of law rules of such state.
37
were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Except for the indemnification and release provisions of Article 6, neither this Agreement nor any provision hereof is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties hereto and their respective successors and permitted assigns.
Section 7.09. Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the United States District Court for the Western District of Arkansas, El Dorado Division or any Arkansas State court sitting in El Dorado, Arkansas, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from the transaction of business in the State of Arkansas, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or outside of the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 7.01 shall be deemed effective service of process on such party.
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temporary or permanent injunction, attachment, or any other equitable remedy which may then be available to obligate the breaching party (i) to perform its obligations under this Agreement or (ii) if the breaching party is unable, for whatever reason, to perform those obligations, to take any other actions as are necessary, advisable or appropriate to give the other party to this Agreement the economic effect which comes as close as possible to the performance of those obligations (including, but not limited to, transferring, or granting liens on, the assets of the breaching party to secure the performance by the breaching party of those obligations).
[Remainder of page intentionally left blank]
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XXXXXX OIL CORPORATION | ||
By: |
| |
Name: | ||
Title: | ||
XXXXXX USA INC. | ||
By: |
| |
Name: | ||
Title: |
[Signature Page to Separation and Distribution Agreement]
SCHEDULE 1
RESTRUCTURING PLAN
Set forth below is a description of the restructuring transactions that are intended to take place in the order set forth below prior to the Distribution. Prior to the Distribution, each of the entities described below is wholly owned, directly or indirectly, by Xxxxxx Oil.
1. | Xxxxxx Oil will contribute to MOUSA the following assets (which are referred to collectively as the βXxxxxx USA Contributed Assetsβ) and any related liabilities: |
i. | the real estate located at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxxxx and appurtenant furniture, fixtures and personal property; |
ii. | (A) the real estate located at 000 Xxxxx Xxxxxx, Xx Xxxxxx, Xxxxxxxx (but excluding, for the avoidance of doubt, lots 2 and 3 of Xxxxx 0, Xxxxxxxx Xxxx of El Dorado) and (B) all appurtenant furniture, fixtures and personal property other than (1) furniture and personal property located on the first and fourth floors of that property, other than furniture and personal property set forth on Schedule 1-A and (2) furniture and personal property located on the second or third floors of that property set forth on Schedule 1-B; |
iii. | a Cessna Citation 560XL aircraft (tail# N370M, acquired July 2005); and |
iv. | licenses associated with the SolArc and the PDI information systems and hardware primarily related thereto. |
2. | MOUSA will liquidate the following subsidiaries by merging each with and into MOUSA: (i) Xxxxxx Latin America Refining & Marketing, Inc., a Delaware corporation, (ii) Xxxxxx LOOP, Inc., a Delaware corporation and (iii) Xxxxxx Lot Holdings, LLC, a Delaware limited liability company. |
3. | MOUSA will transfer and assign to Xxxxxx Oil all of the Assigned Marks (as such term is defined in the Trademark Assignment Agreement). |
4. | MOUSA will distribute to Xxxxxx Oil (i) a cash dividend of $[β] and (ii) all of the stock of (A) Xxxxxx Gas Gathering Inc., a Delaware corporation, (B) Arkansas Oil Company, a Delaware Corporation and (C) Xxxxxx Crude Oil Marketing, Inc., a Delaware corporation. |
5. | Xxxxxx Oil will contribute all of the stock of MOUSA to Xxxxxx USA in exchange for a number of shares of Xxxxxx USA Common Stock equal to the number of shares to be distributed by Xxxxxx Oil in the Distribution less the number of shares of Xxxxxx USA Common Stock held by Xxxxxx Oil immediately prior to the contribution. |
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