EXHIBIT 10.4
BUSINESS ALLIANCE AGREEMENT
by and between
U.S. BANCORP
and
XXXXX XXXXXXX COMPANIES
Dated as of December 23, 2003
TABLE OF CONTENTS
Page
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ARTICLE I. SCOPE OF AGREEMENT............................................ 2
1.1 Scope......................................................... 2
ARTICLE II. BUSINESS AGREEMENTS........................................... 2
2.1 General....................................................... 2
2.2 Investment Funds.............................................. 2
2.3 Capital Market Services Collaboration......................... 3
2.4 Joint Products and Services................................... 4
2.5 Settlement, Safekeeping and Other Banking Services............ 5
2.6 Customer Information Sharing and Access....................... 6
2.7 Securities Dealer Services.................................... 6
2.8 Transition Matters............................................ 7
ARTICLE III. ALLIANCE MANAGEMENT........................................... 8
3.1 Alliance Managers............................................. 8
3.2 Meetings...................................................... 8
3.3 Responsibilities.............................................. 8
ARTICLE IV. TERM AND TERMINATION.......................................... 8
4.1 Term.......................................................... 8
4.2 Termination................................................... 8
4.3 Effect of Termination......................................... 10
ARTICLE V. GENERAL TERMS AND CONDITIONS.................................. 10
5.1 Complete Agreement............................................ 10
5.2 Expenses...................................................... 11
5.3 Governing Law................................................. 11
5.4 Notices....................................................... 11
5.5 Amendment, Modification or Waiver............................. 11
5.6 Successors and Assigns; No Third Party Beneficiaries.......... 12
5.7 Counterparts.................................................. 12
5.8 Dispute Resolution............................................ 12
5.9 Interpretation................................................ 12
5.10 Severability.................................................. 12
5.11 No Joint Venture.............................................. 12
5.12 No Individual Authority....................................... 12
5.13 Non-Exclusivity............................................... 13
5.14 Basis of Bargain.............................................. 13
5.15 Force Majeure................................................. 13
5.16 Priority...................................................... 13
EXHIBIT A -- Alliance Managers
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BUSINESS ALLIANCE AGREEMENT
This BUSINESS ALLIANCE AGREEMENT (this "Agreement"), dated as
of December 23, 2003, is made and entered into by and between U.S. Bancorp, a
Delaware corporation ("Parent"), and XXXXX XXXXXXX COMPANIES, a Delaware
corporation and an indirect, wholly owned subsidiary of Parent ("Xxxxx
Xxxxxxx"). Parent and Xxxxx Xxxxxxx are sometimes referred to herein
individually as a "Party" and collectively as the "Parties". Capitalized terms
used in this Agreement that are not otherwise defined herein shall have the
meanings ascribed to them in the Separation Agreement (as defined herein).
RECITALS
WHEREAS, Parent and Xxxxx Xxxxxxx have entered into a certain
Separation and Distribution Agreement dated as of the date hereof (as it may be
amended from time to time, the "Separation Agreement"), which sets forth the
principal corporate transactions required to effect the separation of Parent's
businesses into two independent public companies;
WHEREAS, pursuant to the provisions of the Separation
Agreement, from and after the consummation of the Merger and the Contribution,
(i) the Xxxxx Xxxxxxx Group will be engaged in the Xxxxx Xxxxxxx Business, (ii)
the Parent Group will be engaged in the Parent Business, (iii) the Xxxxx Xxxxxxx
Group will own and control the Xxxxx Xxxxxxx Assets and assume and be
responsible for the Xxxxx Xxxxxxx Liabilities, and (iv) the Parent Group will
own and control the Parent Assets and assume and be responsible for the Parent
Liabilities;
WHEREAS, Section 3.2(c) of the Separation Agreement provides
that prior to the Distribution, each of Parent and Xxxxx Xxxxxxx shall enter
into this Agreement, which is the Business Alliance Agreement referred to in the
Separation Agreement;
WHEREAS, Section 2.4 of the Separation Agreement provides,
among other things, that on or before the Contribution Effective Time, each of
Parent and Xxxxx Xxxxxxx shall enter into, or cause appropriate members of the
Group of which it is a member to enter into, such other agreements, certificates
and other documents as may be deemed to be advisable by Parent in connection
with the Separation; and
WHEREAS, the Parties desire to enter into this Agreement to
set forth the terms of their agreement regarding certain business alliances,
arrangements, understandings and relationships between and among them and the
other members of each of their respective Groups following the completion of the
Separation (the "Alliance"), including without limitation, the following: (i)
the referral of selected business between the Groups; (ii) the marketing and
distribution of certain financial products and services of the Groups; (iii) the
continued joint provision of certain services by certain members of each Group;
and (iv) certain other matters intended to facilitate the transition of the
Xxxxx Xxxxxxx Business to the Xxxxx Xxxxxxx Group set forth below in this
Agreement.
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NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
SCOPE OF AGREEMENT
SECTION 1.1 Scope. In furtherance of, and in order to document
in its entirety, the Alliance between the Parties, each of Parent and Xxxxx
Xxxxxxx agrees to comply, and to cause the appropriate members of the Group of
which it is a member to comply, with all of the terms and conditions of this
Agreement and the Business Agreements (as defined below) contemplated hereby to
which it, or the applicable member of its Group, is a party.
ARTICLE II
BUSINESS AGREEMENTS
SECTION 2.1 General. Subject to the immediately following
sentence, the Parties currently desire to enter into the agreements provided for
in this Article II below (the "Business Agreements") on the terms set forth
below and otherwise on such other terms and conditions as are customary for
similar business arrangements, but the Parties agree that the identity and
description of the terms of the Business Agreements hereunder may be modified
from time to time by mutual agreement of the Parties. Notwithstanding anything
herein to the contrary, neither Party shall have any obligation to enter into
any such Business Agreement if the Parties are unable to reach agreement on the
terms thereof on or prior to the date that is six months after the Distribution
Date after negotiating in good faith. Each Business Agreement shall, subject to
Section 5.16 hereof, constitute a separate and complete agreement between the
Parties with respect to the subject matter thereof but may reference or
incorporate the terms and conditions of this Agreement, any other Business
Agreement and/or the Separation Agreement if and when appropriate.
SECTION 2.2 Investment Funds. The Parties and/or the
appropriate members of each of their respective Groups shall negotiate in good
faith to enter into Business Agreements pursuant to which Xxxxx Xxxxxxx shall
offer customers of the Xxxxx Xxxxxxx Group various investment fund products
currently managed by Parent's asset management subsidiary on behalf of First
American Funds ("FAF"). The Parties currently contemplate the following specific
Business Agreements that shall be negotiated in good faith and entered into by
and between Xxxxx Xxxxxxx and U.S. Bancorp Asset Management, Inc., a wholly
owned subsidiary of U.S. Bank ("USBAM"):
(a) Money Market funds for Xxxxx Xxxxxxx Clients. Under
an agreement to be entered into between Xxxxx Xxxxxxx and USBAM, money
market balances held in various Xxxxx Xxxxxxx Group client accounts
shall be invested in one or more classes of money market funds of FAF
managed by USBAM. Such money market funds shall be the exclusive
non-state specific retail sweep money market funds offered by the Xxxxx
Xxxxxxx Group during the term of the agreement except as required by
applicable law and
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regulations including Xxxxx Xxxxxxx'x obligation to offer suitable
investments to its clients.
This agreement shall provide that shares and/or one or more classes of
FAF will be named or renamed so as to relate to Xxxxx Xxxxxxx and that
such shares and/or classes shall have distinct pricing and fee
arrangements designed for the Xxxxx Xxxxxxx Group. The Xxxxx Xxxxxxx
Group shall provide omnibus shareholder account record keeping such
that transactions for its clients shall be made through a single
account for each money market fund or class of FAF. USBAM and Xxxxx
Xxxxxxx also shall enter into other service arrangements related to
operational and compliance matters in connection with the investments
in FAF by Xxxxx Xxxxxxx Group clients. The agreement shall provide for
agreed-upon payments to Xxxxx Xxxxxxx for making FAF available to Xxxxx
Xxxxxxx Group clients under this arrangement and shall have an initial
term of two years and be renewable annually.
(b) Long-term Mutual Funds for Xxxxx Xxxxxxx Clients.
Xxxxx Xxxxxxx shall include the long-term (non-money market) mutual
funds of FAF on its preferred list of mutual fund families provided
that Xxxxx Xxxxxxx continues to maintain such a list or any similar
program created in future and that such FAF funds meet the criteria
Xxxxx Xxxxxxx applies equally to all long-term mutual funds considered
for inclusion on such list or in such program. Pursuant to an existing
agreement between Xxxxx Xxxxxxx and Quasar Distributors, Xxxxx Xxxxxxx
shall continue to receive commissions and trailer fees based upon the
investments of Xxxxx Xxxxxxx Group clients in long-term funds of FAF.
This agreement shall be renewable annually.
(c) Referrals by Xxxxx Xxxxxxx to USBAM Institutional
Advisory Group. Under an agreement to be entered into between Xxxxx
Xxxxxxx and USBAM, Xxxxx Xxxxxxx may solicit clients for the
Institutional Advisory Group of USBAM, which manages separate accounts
for corporations, governmental entities, endowments, foundations,
unions and other entities. USBAM shall pay a referral fee to Xxxxx
Xxxxxxx for introductions or leads that result in new clients for this
USBAM advisory activity. The agreement shall conform to the applicable
requirements under the Investment Advisers Act of 1940 with respect to
cash payments for client solicitations and all other legal or
regulatory requirements.
(d) Piper Private Equity Fund. If the USBAM Institutional
Advisory Group determines that it would like to make available
interests in Private Equity Partners II, LP, a private equity fund
sponsored by Xxxxx Xxxxxxx, or a similar fund, to clients of the
Institutional Advisory Group through its affiliate U.S. Bancorp
Investments, Inc. ("USBII"), USBAM, Xxxxx Xxxxxxx and USBII shall enter
into an agreement that will address the specific obligations on the
part of Xxxxx Xxxxxxx Private Capital Group, USBAM Institutional
Advisory Group and USBII as part of this process and shall provide for
the payment of amounts to the appropriate parties for their appropriate
services.
SECTION 2.3 Capital Market Services Collaboration. The Parties
and/or the appropriate members of each of their respective Groups shall
negotiate in good faith to enter into Business Agreements pursuant to which
Parent and/or members of the Parent Group shall
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recommend the Xxxxx Xxxxxxx Group as a preferred provider of capital market
services to clients of the Parent Group. Such services shall include both (i)
investment banking services and (ii) investment account services. The investment
banking services shall consist of both (A) debt capital market transactions
including senior secured, senior unsecured, subordinated notes, medium term note
programs, brokered CD programs, trust preferred securities, non-convertible
preferred securities and commercial paper programs (but excluding any municipal
finance transactions), and (B) equity capital market transactions including
public equity offerings, public or private convertible securities, merger and
acquisition transactions and private equity transactions. The investment account
services shall include services provided by Xxxxx Xxxxxxx'x fixed income capital
markets sales force and corporation cash management programs. Such agreement or
agreements shall provide for the payment by the Xxxxx Xxxxxxx Group of referral
fees to the Parent Group if a Parent Group client uses any of such preferred
provider services of the Xxxxx Xxxxxxx Group and the same results in a net
profit to the Xxxxx Xxxxxxx Group.
SECTION 2.4 Joint Products and Services. The Parties and/or
the appropriate members of each of the respective Groups shall negotiate in good
faith to enter into Business Agreements pursuant to which the Parties shall
jointly provide certain financial products and services of certain members of
each Group to shared customers of the Groups. The Parties currently contemplate
that such agreements will include, without limitation, the following specific
agreements:
(a) Retirement Solution Plan Product. Under an agreement
to be entered into between Xxxxx Xxxxxxx and U.S. Bank National
Association, a national banking association and a wholly owned
subsidiary of Parent ("U.S. Bank"), Xxxxx Xxxxxxx and U.S. Bank shall
continue to market and manage the bundled retirement plan product known
as "Retirement Solution." Specifically, pursuant to the provisions of
this agreement, Retirement Solution shall continue to be managed by the
Institutional Trust and Custody group of U.S. Bank ("IT&C"), and USBAM
and IT&C shall continue to support the Xxxxx Xxxxxxx Group in its sales
activities relating to Retirement Solution. IT&C and the Xxxxx Xxxxxxx
Group shall agree upon new procedures and pricing for new clients,
including procedures for the payment of commissions, and communication
processes determined to be desirable or necessary in light of the
post-Separation structure in order to continue to provide high service
levels to shared clients and to retain this business. Pricing on
retirement plan customers as of the Merger and the Contribution, shall
remain unchanged for one year.
(b) Solution Online Retirement Plan Product. Under an
agreement to be entered into between Xxxxx Xxxxxxx and U.S. Bank, Xxxxx
Xxxxxxx'x financial advisors shall continue to market and IT&C shall
continue to manage the online bundled retirement plan product known as
"Solution Online." Neither the management and distribution of Solution
Online nor the process by which the Xxxxx Xxxxxxx Group receives
payments for the distribution of Solution Online shall be fundamentally
affected by the Separation. IT&C and Xxxxx Xxxxxxx shall agree upon any
modifications that may be necessary or desirable regarding how the
product is marketed and distributed.
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(c) Premier Portfolio Trust Product (Xxxxx Xxxxxxx
Managed Fiduciary Trust Accounts at Parent). Under an agreement to be
entered into between U.S. Bank and Xxxxx Xxxxxxx, U.S. Bank and Xxxxx
Xxxxxxx shall continue to provide in partnership a Premier Portfolio
Trust product, pursuant to which certain of the investment assets of
the Xxxxx Xxxxxxx Group clients are held in fiduciary trust accounts at
U.S. Bank while managed by Xxxxx Xxxxxxx Group financial advisors. This
agreement shall set forth the framework and requirements respecting the
Premier Portfolio Trust partnership, including the new technology,
information access and communication processes that will be necessary
to continue to jointly offer this product following the completion of
the Separation.
(d) Mortgage Joint Venture. Xxxxx Xxxxxxx and U.S. Bank
have formed a joint venture for the purpose of satisfying the mortgage
product needs of Xxxxx Xxxxxxx Group clients.
SECTION 2.5 Settlement, Safekeeping and Other Banking
Services. The Parties and/or the appropriate members of each of their respective
Groups shall negotiate in good faith to enter into Business Agreements pursuant
to which U.S. Bank shall provide to the Xxxxx Xxxxxxx Group's corporate cash
management clients settlement, safekeeping and other banking services. The
Parties expect that the use of such settlement services by such clients of the
Xxxxx Xxxxxxx Group will decline over the term of this Agreement as the Xxxxx
Xxxxxxx Group transitions its customers to alternative settlement services. The
Parties currently contemplate that such agreements will include, without
limitation, the following specific agreements:
(a) Basis Point CDs, Commercial Paper, Bankers
Acceptances. U.S. Bank shall provide certain operational support to the
Xxxxx Xxxxxxx Group in connection with the Basis Point CD product,
including, for example, providing the Xxxxx Xxxxxxx Group with credit
advice, statements of position and confirmations regarding daily
remittance amounts. Such support shall further provide that the Xxxxx
Xxxxxxx Group shall promptly provide U.S. Bank with certain information
and documentation to enable U.S. Bank to provide such operational
assistance, and the Xxxxx Xxxxxxx Group shall be responsible for late
fees, penalties and other fees that may arise in connection with the
provision of this operational assistance.
(b) Safekeeping and Bond Accounting Services. U.S. Bank
shall provide safekeeping and bond accounting services to its customers
who purchase from or sell to the Xxxxx Xxxxxxx Group fixed income
products. These services shall be substantially identical to the
services U.S. Bank provides to its customers that transact with other
independent, third party broker-dealers, and these services shall be
governed by agreements that are substantially identical to the
agreements between U.S. Bank and its customers that transact with other
independent, third party broker-dealers. Such agreements shall further
provide that the Xxxxx Xxxxxxx Group shall promptly provide U.S. Bank
with certain information and documentation to enable U.S. Bank to
provide such operational assistance, and the Xxxxx Xxxxxxx Group shall
be responsible for late fees, penalties and other fees that may arise
in connection with the provision of this operational assistance.
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(c) Automated Clearing House Cash Settlement Services.
Pursuant to an existing agreement, U.S. Bank shall continue to accept
Automated Clearing House ("ACH") files from members of the Xxxxx
Xxxxxxx Group to facilitate same-day and/or next day debits and credits
to the demand deposit accounts maintained at U.S. Bank and other
financial institutions by Xxxxx Xxxxxxx Group customers. The Xxxxx
Xxxxxxx Group's ability to add new accounts to such ACH files and the
gradually declining ACH credit exposure shall be consistent with the
limits mutually agreed upon by U.S. Bank and the Xxxxx Xxxxxxx Group
which shall be documented in a separate agreement. ACH services shall
be offered at the aforementioned agreed upon credit limits subject to
no material adverse change in the financial condition of the Xxxxx
Xxxxxxx Group. Standard fee arrangements and other terms and conditions
shall apply to such ACH activity.
(d) Credit Lines. U.S. Bank shall provide the Xxxxx
Xxxxxxx Group demand lines of credit, which shall be collateralized by
marketable securities. Additionally, U.S. Bank shall provide the Xxxxx
Xxxxxxx Group a daylight overdraft line and a day loan line in the
amounts mutually agreed upon by U.S. Bank and the Xxxxx Xxxxxxx Group
which shall be documented in a separate agreement and also be subject
to no material adverse change in the financial condition of Xxxxx
Xxxxxxx.
SECTION 2.6 Customer Information Sharing and Access. The
Parties and/or the appropriate members of each of their respective Groups shall
negotiate in good faith and enter into Business Agreements pursuant to which the
Parent Group shall share with the Xxxxx Xxxxxxx Group certain information
regarding certain shared customers to the extent permitted by applicable law and
such customers. The Parties currently contemplate that such agreements will
include, without limitation, the following specific agreements:
(a) Parent Group Services (Information Sharing). Under an
agreement to be entered into between U.S. Bank and Xxxxx Xxxxxxx,
subject to prior, written customer consent, U.S. Bank shall provide
Xxxxx Xxxxxxx on a regular basis, information regarding the accounting,
activity and status of the demand deposit and safekeeping accounts of
their shared customers. Such information shall be provided under terms
and conditions that are substantially similar to the terms and
conditions that govern U.S. Bank's provision of such information to
other independent, third party broker-dealers or recipients of this
information.
(b) SAR Access. Under an agreement to be entered into
between U.S. Bank and Xxxxx Xxxxxxx, subject to any necessary consents,
U.S. Bank shall provide Xxxxx Xxxxxxx with access to information on
U.S. Bank's SAR (Sysout Archival and Retrieval) system until the
conversion of the information to a new system is complete.
SECTION 2.7 Securities Dealer Services. U.S. Bancorp Xxxxx
Xxxxxxx, Inc., a wholly owned subsidiary of Xxxxx Xxxxxxx, has entered into a
certain Dealer Agreement with USBII dated as of April 21, 2003, which agreement
shall continue in full force and effect following completion of the Separation
in accordance with it terms. Such agreement provides that Xxxxx Xxxxxxx'x fixed
income trading desk shall provide certain services to USBII relating to the
purchase and sale of fixed income securities products to USBII's customers.
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SECTION 2.8 Transition Matters. The Parties and/or the
appropriate members of each of their respective Groups shall negotiate in good
faith and enter into such agreements relating to the transition of the Xxxxx
Xxxxxxx Business, Xxxxx Xxxxxxx Assets and Xxxxx Xxxxxxx Liabilities to the
Xxxxx Xxxxxxx Group as may be jointly determined by the Parties to be necessary
or desirable. The Parties currently contemplate that such agreements will
include, without limitation, the following specific agreements:
(a) Structured Notes Program Modifications. USBII has two
series of structured notes issued and outstanding, consisting of (i)
USBI Trust, Series 2002, and (ii) USBI Trust, Series 1998D. The Xxxxx
Xxxxxxx Group will remain responsible for remarketing and
administrative services for the structured notes and the Parent Group
will continue to act as guarantor and trustor. The Parties shall cause
all necessary amendments to existing agreements reflecting such duties
to be executed and delivered at or prior to the Contribution Effective
Time.
(b) Third Party Vendor Contracts. The Parties and/or the
appropriate members of each of their respective Groups shall enter into
an agreement or agreements on or prior to the Contribution Effective
Time that allocate the use of, and payment responsibility for, products
and services under various third party contracts including
telecommunications, data communications, network and market data. In
situations where a contract is currently in the name of one or more
members of only one Group and none of the members of the other Group
are parties thereto, but members of both Groups are sharing the
applicable products or services, such agreement or agreements shall (i)
specify a method for notifying third party vendors which Party shall
continue to use the products or services and become solely responsible
for payments therefor and (ii) obligate such responsible Party to
indemnify the other Party from and against any further liability under
the related third party contract.
(c) Prime Account Processing. U.S. Bank shall continue to
process Xxxxx Xxxxxxx prime accounts until conversion to new system can
be completed.
(d) Daily Confirms Formatted, Printed and Mailed. U.S.
Bank shall continue to format, print and mail Xxxxx Xxxxxxx'x daily
confirms until this function is outsourced to a third party vendor,
which shall not exceed four weeks from the date of the Merger and
Contribution.
(e) Network Equipment Room Engineering Services. U.S.
Bancorp shall provide engineering services to support Xxxxx Xxxxxxx'x
portion of the network equipment room on the 8th floor of the 000
Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX location from the date of the Merger and
Contribution until the earlier of February 29, 2004 or a third party
service provider engaged by Xxxxx Xxxxxxx takes over such
responsibilities.
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ARTICLE III
ALLIANCE MANAGEMENT
SECTION 3.1 Alliance Managers. Each Party shall name one or
more representatives to be its alliance manager for this Agreement and each
other Business Agreement contemplated hereunder (collectively, the "Alliance
Managers"). The initial Alliance Managers for each Party are listed in attached
Exhibit A hereto. Either Party may replace any of its Alliance Managers at any
time upon reasonable advance notice to the other.
SECTION 3.2 Meetings. Meetings of the Alliance Managers for
each Business Agreement shall be held from time to time as agreed by the
Alliance Managers, but not less than once every calendar quarter. Such meetings
may be conducted either in person or by telephone.
SECTION 3.3 Responsibilities. The Alliance Managers shall be
responsible for understanding the full scope of the Alliance. The Alliance
Managers shall further be responsible for engaging the appropriate
representatives of their respective companies to allow the Parties to meet their
obligations hereunder. The responsibilities of the Alliance Managers shall
include, but shall not be limited to, the following:
(a) Overall management of the collaborative Alliance of
the Parties as contemplated by this Agreement, the other Business
Agreements and the Separation Agreement; and
(b) The responsibility to attempt to resolve
expeditiously any conflict between or among the Parties and/or other
members of each Group related to this Agreement and/or the other
Business Agreements.
ARTICLE IV
TERM AND TERMINATION
SECTION 4.1 Term. This Agreement shall commence at the
Contribution Effective Time and shall continue for two (2) years thereafter (the
"Term") unless earlier terminated by either Party as permitted under the
provisions of this Agreement.
SECTION 4.2 Termination. (a) This Agreement may be terminated
for cause by either Party if the other Party is in breach of any of its material
obligations under this Agreement and fails to remedy such breach within thirty
(30) days of receipt of a written notice by the other Party that specifies the
material breach.
(b) Either Party may terminate this Agreement, which
termination shall occur immediately, if:
(i) the other Party or any significant
Subsidiary of such Party shall make an assignment for the
benefit of creditors;
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(ii) the other Party or any significant
Subsidiary of such Party shall petition or apply to any
tribunal for the appointment of a trustee or receiver of it,
or of any substantial part of its assets, or commence any
proceeding relating to it under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction whether now
or hereafter in effect;
(iii) any bankruptcy, insolvency, receivership or
similar petition or application is filed, or any proceedings
are commenced against the other Party or any significant
Subsidiary of such Party and the other Party or any
significant Subsidiary of such Party by any act indicates its
approval thereof, consent thereto, or acquiescence therein, or
any order is entered appointing a trustee or receiver,
adjudicating the other Party bankrupt or insolvent, or
approving the petition in any such proceedings and such order
remains unstayed or undischarged for more than sixty (60)
days; or
(iv) any order is entered in any proceedings
against the other Party or any significant Subsidiary of such
Party decreeing the dissolution of the other Party or such
significant Subsidiary and such order remains unstayed or
undischarged for more than sixty (60) days.
(c) Either Party may terminate this Agreement upon
written notice in the event of a Change of Control (defined below), provided
that the Party undergoing the Change of Control shall use its reasonable best
efforts to notify the other Party of such event at the earliest time that it is
legally permitted and practically able to do so. As used herein, "Change of
Control" means, with respect to either Party: (1) the acquisition by any Person
(it being understood that the use of the term "Person" in this definition shall
be deemed to include any group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (the "Exchange Act")) of Persons) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act for the purposes of this definition) of securities of such Party
where such acquisition causes such Person, directly or indirectly, to
beneficially own more than 50% of either (i) the then outstanding shares of
common stock of such Party ("Outstanding Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of such Party entitled to
vote generally in the election of directors ("Outstanding Voting Securities");
provided, however, that for purposes of this subsection (a), any acquisition by
(A) any employee benefit plan (or related trust) sponsored or maintained by such
Party or any corporation controlled by such Party or (B) any corporation,
limited liability company or other entity pursuant to a transaction which
complies with clauses (i) and (ii) of subsection (2) below, shall not be deemed
to result in a Change of Control; or (2) the consummation of, a reorganization,
merger or consolidation or sale or other disposition of all or substantially all
of the assets of such Party (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Common Stock and Outstanding Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively,
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the then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a result of
such transaction owns such Party or all or substantially all of such Party's
assets either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such Business
Combination, of the Outstanding Common Stock and Outstanding Voting Securities,
as the case may be, and (ii) no Person beneficially owns, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock of such corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation.
SECTION 4.3 Effect of Termination. Upon any expiration or
earlier termination of this Agreement, the rights and obligations of the Parties
hereunder shall terminate, excluding those provisions that by their terms extend
beyond such termination. For the avoidance of doubt, nothing herein shall
terminate any on-going payment or other obligation under any other Business
Agreement, which obligations shall be governed solely by the terms of such
Business Agreement (except to the extent, if any, set forth therein).
ARTICLE V
GENERAL TERMS AND CONDITIONS
SECTION 5.1 Complete Agreement. (a) This Agreement and the
Exhibits hereto, the Business Agreements and the Separation Agreement shall
constitute the entire agreement between the Parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter.
(b) Parent represents on behalf of itself and each other
member of the Parent Group and Xxxxx Xxxxxxx represents on behalf of itself and
each other member of the Xxxxx Xxxxxxx Group as follows:
(i) each such Person has the requisite corporate or other
power and authority and has taken all corporate or other action
necessary in order to execute, deliver and perform each of this
Agreement and each other Business Agreement that shall be agreed to and
finalized in accordance with this Agreement (including Section 2.1
hereof) (collectively, the "Transaction Agreements") in each case to
which it is a party and to consummate the transactions contemplated by
the Transaction Agreements to which it is a party; and
(ii) this Agreement has been duly executed and delivered
by such Person (if such Person is a party) and constitutes a valid and
binding agreement of it enforceable in accordance with the terms hereof
(assuming the due execution and delivery hereof by the other party),
and each of the other Transaction Agreements to which it will be a
party will be duly executed and delivered by it and will constitute a
valid and binding agreement of
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it enforceable in accordance with the terms thereof (assuming the due
execution and delivery thereof by the other party or parties to such
Transaction Agreement).
SECTION 5.2 Expenses. Except as expressly set forth in this
Agreement or in any other Business Agreement or the Separation Agreement, and
regardless of whether or not the Separation or the Distribution is consummated,
all third party fees, costs and expenses paid or incurred in connection with the
transactions contemplated by this Agreement and the Business Agreements shall be
paid by the Party incurring such fees, costs or expenses.
SECTION 5.3 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware (other than
the laws regarding choice of laws and conflicts of laws that would apply the
substantive laws of any other jurisdiction) as to all matters, including matters
of validity, construction, effect, performance and remedies.
SECTION 5.4 Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be deemed given
to a Party when (a) delivered to the appropriate address by hand or by
nationally recognized overnight courier service (costs prepaid); (b) sent by
facsimile with confirmation of transmission by the transmitting equipment; or
(c) received or rejected by the addressee, if sent by certified mail, return
receipt requested, in each case to the following addresses and facsimile numbers
and marked to the attention of the person (by name or title) designated below
(or to such other address, facsimile number or person as a Party may designate
by notice to the other Parties):
If to Parent or any member of the Parent Group:
U.S. Bancorp
000 Xxxxxxxx Xxxx
XX-XX-X00X
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Mitau
Fax: (000) 000-0000
If to Xxxxx Xxxxxxx or any member of the Xxxxx Xxxxxxx Group:
Xxxxx Xxxxxxx Companies
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
SECTION 5.5 Amendment, Modification or Waiver. This Agreement
may be amended, modified, waived or supplemented, in whole or in part, only by a
written agreement signed by each of the Parties. The waiver by the Parties of
any breach of this Agreement shall not be construed as a waiver of any
subsequent breach.
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SECTION 5.6 Successors and Assigns; No Third Party
Beneficiaries. (a) This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the Parties and their successors and
permitted assigns, but neither this Agreement nor any of the rights, interests
and obligations hereunder shall be assigned or otherwise transferred, in whole
or in part, by any Party without the prior written consent of the other Party.
(b) This Agreement is solely for the benefit of the
Parties and is not intended to confer upon any other Persons any rights or
remedies hereunder.
SECTION 5.7 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 5.8 Dispute Resolution. Any controversy, claim or
question of interpretation arising out of or relating to this Agreement
(including without limitation a claimed breach of any of the provisions hereof)
that is not resolved by the Parties shall be resolved in accordance with the
provisions of Section 9.9 of the Separation Agreement.
SECTION 5.9 Interpretation. Article and Section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the Parties and shall not in any way affect the meaning
or interpretation of this Agreement.
SECTION 5.10 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, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any Party.
SECTION 5.11 No Joint Venture. Notwithstanding any provision
hereof, this Agreement does not create, and is not intended to create, a joint
venture, partnership or agency relationship between the Parties. For all
purposes of this Agreement, each Party shall be and act as an independent
contractor and not as partner, joint venturer or agent of the other and shall
not bind nor attempt to bind the other to any contract. Each Party shall be free
to manage and control its business as it sees fit, without the management,
control or assistance of the other Party, except as otherwise prescribed herein
or in any other Business Agreement or the Separation Agreement.
SECTION 5.12 No Individual Authority. Neither Party shall,
without the express, prior written consent of the other Party, take any action
for or on behalf of or in the name of the other Party, assume, undertake or
enter into any commitment, debt, duty or obligation binding upon any other
Party, except for actions expressly provided for in this Agreement or pursuant
to any other Business Agreements entered into between the Parties.
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SECTION 5.13 Non-Exclusivity. Unless otherwise expressly set
forth herein or in any other agreement between the Parties or other members of
their respective Groups, the undertaking referenced herein and the relationship
between the Parties, and all aspects thereof are and shall be non-exclusive.
Provided that such activities do not otherwise constitute a breach of the
Separation Agreement or any Business Agreement, each Party may develop itself,
or purchase or otherwise acquire from third parties, any products or services,
and each Party may engage in any business, even if such business is competitive
with the business of the other Party.
SECTION 5.14 Basis of Bargain. Parent and Xxxxx Xxxxxxx
acknowledge that each Party has entered into this Agreement in reliance upon the
disclaimers of warranties and limitations of liability and damages as set forth
in this Agreement and the Separation Agreement, and that such provisions form an
essential basis of the bargain between the Parties and do not cause this
Agreement, or the remedies available hereunder, to fail of its or their
essential purpose.
SECTION 5.15 Force Majeure. Excluding the obligation to make
payment when due, in the event that either Party is prevented from performing,
or is unable to perform, any of its obligations under this Agreement due to any
cause beyond the reasonable control of the Party invoking this provision, the
affected Party's performance will be excused and the time for performance will
be extended for the period of delay or inability to perform due to such
occurrence.
SECTION 5.16 Priority. Should there be a conflict between any
other Business Agreement and this Agreement or should this Agreement be silent
on a matter addressed in any other Business Agreement (and not in the Separation
Agreement), such other Business Agreement shall prevail as to the subject matter
thereof. Should there be a conflict between this Agreement and the Separation
Agreement or should this Agreement be silent on a matter addressed in the
Separation Agreement, the Separation Agreement shall prevail as to the subject
matter thereof.
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IN WITNESS WHEREOF, each of the Parties has caused this
Agreement to be executed by its duly authorized representative.
U.S. BANCORP
By: /s/ Xxx X. Mitau
---------------------------------
Name: Xxx X. Mitau
Title: Executive Vice President
XXXXX XXXXXXX COMPANIES
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
