Exhibit 10.2
FORM OF IVORYDALE MANUFACTURING PLANT SEPARATION AGREEMENT
This is a Manufacturing Plant Separation Agreement ("Separation Agreement")
dated _______, 200___ between The Procter & Xxxxxx Company, an Ohio corporation
("P&G") and The X.X. Xxxxxxx Company, an Ohio corporation ("JMS"). P&G and JMS
are sometimes collectively referred to herein as "Parties" and individually as a
"Party".
WHEREAS, P&G and JMS have entered into a Contribution Agreement and the
Agreement and Plan of Merger, dated as of October 9, 2001 (jointly the
"Corporate Agreements"), pursuant to which JMS shall become the successor in
interest to the Jif/Crisco Assets (as defined in the Corporate Agreements), and
P&G and JMS have entered into a Transitional Services Agreement dated as of
October 9, 2001 (the " Services Agreement");
WHEREAS, in connection with the Corporate Agreements, JMS and P&G wish
to separate certain physical components and services that currently serve both
the Crisco manufacturing facility located at 0000 Xxxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx, Xxxx ("JMS's Plant") and P&G's facilities and operations
also located at 0000 Xxxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx, Xxxx ("P&G's
Plant") during the Separation Period set forth herein;
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and conditions contained herein, the Parties
hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.01 GENERAL. Any capitalized item used but not defined herein shall have
the meaning set forth in the Corporate Agreements or the Services
Agreement.
1.02 "PROJECT MANAGER" shall mean and include the sole representative of
either party and such representative shall have full authority and
responsibility for communication with the other party and the
coordination of the activities of his or her respective Party, as
provided in Section 3.02.
1.03 "PURPOSE" shall mean the physical Separation of JMS's Plant from P&G's
Plant on the terms and conditions and during the periods set forth
herein.
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1.04 "SEPARATION" means only those Separation Projects and services
undertaken by P&G hereunder and set forth in Schedule 3.01 to this
Agreement.
1.05 "SITE" shall mean the land, building and environment on which JMS's
Plant and P&G's Plant are located and where the Separation is to take
place and the separation work is to be performed as defined in Article
III.
1.06 OTHER DEFINITIONS. Other terms defined in this Separation Agreement,
and the places where they are defined, are:
"JMS" Preamble
"JMS'S PLANT" Preamble
"DEFAULTING PARTY" Section 8.02
"DEMANDS" Section 6.01
"NON-DEFAULTING PARTY" Section 8.02
"PURPOSE" Preamble
"CORPORATE AGREEMENTS" Preamble
"P&G" Preamble
"P&G'S PLANT" Preamble
"SEPARATION AGREEMENT" Preamble
"SEPARATION PERIOD" Section 7.02
"SEPARATION PROJECTS" Section 3.01
"TRANSITION PERIOD" Services Agreement
ARTICLE II
BASIC OBLIGATIONS
2.01 OBLIGATIONS. Subject to the limitations and conditions of this
Separation Agreement, and during the time periods set forth herein, P&G
shall perform, or cause its agents and/or contractors to perform, for
the benefit of JMS the Separation Projects set forth herein.
ARTICLE III
SEPARATION
3.01 SEPARATION PROJECTS.
Subject to the terms and conditions of this Separation Agreement, P&G
shall undertake those separation projects listed on Schedule 3.01
(hereafter referred to as the "Separation Projects") in order to
effectuate the physical Separation of the P&G's Plant from JMS's Plant.
In addition, P&G shall provide JMS's Plant with certain independent
services from P&G's Plant substantially similar to the services
currently available and used by JMS's Plant as of the date hereof such
that, with respect to only those services affected by any of the
Separation Projects, JMS's Plant can be adequately operated in
accordance with the operations conducted as
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of the date hereof; provided, however, the Separation Projects
specifically exclude the Long Term Manufacturing Services and any
separation projects undertaken by JMS independently from the Separation
Projects expressly assumed and undertaken by P&G hereunder. Nothing
contained in Article 5 shall limit or release P&G of its obligations to
perform the Separation Projects in accordance with the terms of this
Agreement.
3.02 PROJECT PLANNING AND MANAGEMENT.
(a) Both P&G and JMS shall each appoint one Project Manager as a
single point of contact on each side to communicate and
coordinate between the two parties and shall provide each
other with the name and contact information of their
respective Project Manager on or promptly after the date of
this Agreement. Either Party may change its designated Project
Manager upon prior written notice to the other Party.
(b) After Closing, P&G shall further develop a master separation
plan addressing timing, physical interfaces, compatibility,
separation, standards and other details to execute and
implement each of the Separation Projects in order to minimize
the impact and disruptions to the JMS's and P&G's operations
and processes. P&G and JMS agree that the Separation Projects
relating to the compressed air and power and sewer shall be
prioritized in the master separation plan. P&G shall then
share such master separation plan with JMS's Project Manager,
who shall have the opportunity to provide P&G with input
regarding such separation plan, which input shall be
reasonably considered by P&G but shall not be binding upon
P&G. Notwithstanding the foregoing, P&G and JMS shall
reasonably agree (both acting in good faith) on mutually
acceptable terms, which shall not materially interfere with
the cost-effectiveness or timing provided for in P&G's master
separation plan, regarding, (i) the routing of lines over and
across JMS's land, (ii) the location of the compressor that
shall be located on JMS's land,(iii) any component of the
Separation Projects that relate to or affect the structural
components of JMS's Plant, and (iv) any component of the
Separation Projects that relate to or affect the roof of JMS's
Plant. JMS may provide P&G with reasonable suggestions
regarding scheduling of the execution of those projects listed
on the master separation plan and impacting the work processes
at the JMS's Plant and P&G shall cooperate with JMS in good
faith to incorporate such suggestions, provided that such
suggestions do not interfere with P&G's general timing or
costs pursuant to its master separation plan.
(c) Notwithstanding the foregoing, P&G and JMS shall mutually
agree on the specific dates and times of the execution of any
components of the Separation Projects that shall require any
portion of JMS's Plant to be inoperable. P&G, JMS and their
authorized
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representatives and designated Project Managers, shall then
mutually cooperate in good faith and collaborate to coordinate
the prioritization, implementation, execution, and turn-over
and the provision of reasonable progress updates of the
Separation Projects by P&G or P&G's Affiliates, contractors or
agents. P&G or P&G's Affiliates shall be responsible to
supervise the Separation Projects.
3.03 CONTRACTOR SELECTION.
P&G shall select its own, individual contractors, and shall use
reasonable efforts to obtain standard commercial warranties, fully
assignable to JMS at completion of the applicable project, from each
such contractor performing separation project work at JMS's Plant. To
the extent assignable, P&G agrees to assign, in part or as a whole, the
rights and recourses under these commercial warranties from such
contractors, provided, however, that P&G shall be entitled to also
retain, in part or as a whole, the benefit of, and the rights and
recourses under, such warranties from said contractors.
3.04 SCOPE OF SEPARATION.
Other than the Separation Projects which P&G shall perform pursuant to
the terms and conditions set forth herein, neither P&G nor any of its
Affiliates shall be obligated to perform or to cause to be performed
any work (i) off of the Site; or (ii) in any way which may interfere or
can be expected to interfere with P&G's operation of its businesses
and/or operations at P&G's Plant.
3.05 STANDARD OF PERFORMANCE; STANDARD OF CARE.
(a) Subject to other provisions in this Separation Agreement, P&G
shall, and shall cause its Affiliates to, perform its duties
and responsibilities hereunder with the same degree of
diligence and care that a reasonably prudent provider of the
Separation and Separation Projects would employ if servicing
its own business and, in any event, in a manner consistent in
all material respects with past practices, its usual policies
and procedures (including those relating to applicable
specifications of material and installed equipment and
engineering and architectural design) and the usual and
customary practices, codes and standards for the Separation
and Separation Projects, and in accordance with all Applicable
Laws.
(b) P&G shall be responsible to ensure that all work shall be
completed in a workmanship like manner and in compliance with
all applicable regulations, ordinances, building codes and
other Applicable Laws and, to the extent required by law, all
work shall be performed by individuals duly licensed and
authorized by law to perform said work. P&G shall further
ensure that it or each contractor selected
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by it, shall obtain all appropriate permits related to each
Separation Project and necessary for the work to be performed.
Nothing in this Agreement shall require P&G or any of its
Affiliates to perform the Separation in a manner that would
constitute a violation of Applicable Laws.
(c) P&G and each contractor selected by it, shall keep the JMS's
Plant free from accumulation of waste material, debris and
rubbish and at the completion of the work such contractor
shall remove from JMS's Plant all rubbish, debris, implements
and surplus materials and leave JMS's Plant broom-clean.
(d) P&G shall perform and observe, or cause its agents and
contractors to perform for the benefit of each other, all
obligations and requirements required of such contractor by
law in relation to itself and its employees, including but not
limited to paying all necessary wages, superannuation
payments, taxes (including GST), duties and imposts and taking
out and continuing all necessary insurances including
compliance with the Accident Compensation Act 1985 by
registration as an employer and the payment of any Work Cover
premium required to be paid thereunder.
(e) P&G and each contractor selected by it for any portion of any
of the Separation Projects to be performed on JMS's parcel,
shall be adequately insured (including through self-insurance
by P&G) for injury to its employees and others and JMS's Plant
as a result of the acts of such contractor or its employees
and subcontractors in the course of the execution or
performance of work under the Separation Project at JMS's
Plant.
(f) In the execution and performance of the Separation Projects,
P&G and each contactor selected by it, shall not install
second-hand equipment or materials on JMS's parcel.
3.06 ADDITIONAL DOCUMENTATION. Both Parties agree to execute and deliver to
each other any such additional documentation and side agreements
(including, without limitation, the granting of mutual easements) which
may be reasonably required to effectuate the Purpose of this Separation
Agreement.
P&G shall also cooperate with JMS by supplying, upon JMS's reasonable
request, any relevant drawings (including CADD or other electronic
format where available), and plans pertaining to the aspects relating
to JMS's parcel of those of the Separation Projects which are to be
performed on JMS's parcel or exclusively relate to JMS's parcel or
directly relate to any
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material or equipment that JMS shall own or be obligated to maintain
after the completion of such Separation Projects.
3.07 ACCESS. For the period from the Closing Date until the expiration or
termination of the Separation Period and to the extent necessary for
P&G or JMS to exercise their rights pursuant to Section 8.02, P&G and
JMS agree as follows:
(a) Subject to the other terms and conditions of this Agreement,
each Party shall permit reasonable access to its premises by a
reasonable number of the other Party and the other Party's
authorized representatives at such times and for such duration
as may be approved by the respective Project Manager, for the
purpose of performing and effectuating the Separation set
forth under this Separation Agreement, including, without
limitation, access for planning for the Separation operations;
provided, however, neither Party shall unreasonably disrupt
the other Party's operations.
(b) JMS's Project Manager and P&G's Project Manager shall mutually
agree on the number of each Party's authorized employees and
representatives and the terms of their access to each Party's
Plant. Such access shall not unreasonably interfere with the
normal operations of the other Party.
3.08 EASEMENTS. JMS and P&G shall grant each other any necessary easements
to effectuate the Purpose and to allow each Party to continue to
operate its respective plant. Such easements are set forth on the
easement drawing on Schedule 3.08 and include:
(i) recordable easements, granted to JMS at Closing, for access to
the roadways and rail lines which serve the JMS's parcel and
JMS's Plant and for lines, facilities and infrastructure that
serve the JMS's parcel which may be required to cross P&G's
property after the Separation, including without limitation
lines for nitrogen and hydrogen sources, utility lines, and
use of the stormwater system with access to the drainage
canal;
(ii) recordable easements, granted to P&G at Closing, for access to
the roadways and rail lines which serve the P&G's parcel and
P&G's Plant and for lines, facilities and infrastructure that
serve P&G's parcel which currently cross or may be required to
cross JMS's property after the Separation; and
(iii) recordable easements, granted to JMS at Closing, for
reasonable and necessary access by JMS's, its Affiliates, and
contractor's trucks and vehicles through the existing entrance
gates in order to access JMS's Plant and JMS's parcel,
provided that such access shall be limited to any reasonably
necessary access by JMS's trucks to JMS's Plant, as well as
reasonably necessary access to JMS's Plant and JMS's Parcel in
emergency situations, and
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provided further that such vehicular and truck access rights
granted to JMS hereunder shall in no event be used for general
employee, general contractor or other general public or third
party access, other than for JMS's, its Affiliates', and
contractor's access only the North parcel of JMS's Plant which
are not otherwise accessible.
At or after Closing, P&G and JMS shall enter into an easement
agreement(s), in a form and substance reasonably satisfactory to P&G
and JMS, that shall provide, among other things: (i) for each of P&G
and JMS to have the right to relocate such easements to another
location on the Site that is acceptable to the owner of the property
(in its reasonable discretion) provided all costs for such relocation
are paid by the Party desiring such relocation; (ii) for the Party that
is benefited by an easement, access to such easement over and across
other portions of the Site for the maintenance of the facilities (e.g.
pipes, lines, cables) located in such easement area which such Party is
obligated to maintain and/or repair, if necessary; and (iii) for the
Party granting the easement the right to use the surface of such
property in any manner that is not inconsistent with the use of the
easement.
3.09 SUBDIVISION AND PARKING. In the event that the transfer of the parcel
of real property specified on Schedule 3.08 from P&G to JMS pursuant to
the Contribution Agreement, shall directly result in such parcel
failing to comply, immediately after Closing, with zoning
classifications in effect as of the Closing and pertaining to
sufficient parking spaces, then P&G shall, at its sole discretion,
either:
(i) grant JMS, at such time after Closing, and for as long as the
non-compliance with the zoning classification, applicable as
of Closing, shall last, a recordable license to use a number
of parking spaces on P&G's adjacent parking lot, provided that
such license shall be limited to the minimum number of parking
spaces required to bring the total number of available parking
spaces serving JMS's parcel immediately after Closing to the
number of parking spaces required by the applicable zoning
classification pertaining to parking as of the Closing Date;
or
(ii) reasonably expand, at P&G's cost and as permissible by
Applicable Laws, ordinances, regulations, permits, and
licenses, JMS's parking lot on the parcel specified on
Schedule 3.08 in order to add the number of required parking
spaces to bring the total number of parking spaces servicing
JMS's parcel to the number of parking spaces required by the
applicable zoning classification pertaining to parking on such
parcel as of the Closing Date.
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3.10 REASONABLE ASSISTANCE. P&G shall reasonably assist JMS, at JMS's cost
and expense, in preparing and submitting any requests and applications
for the required permits and licenses in favor of JMS to run a new
conveyor system to transport product from JMS's Plant to the proposed
expansion land identified as parcel specified on Schedule 3.08. P&G
shall further reasonably assist JMS in preparing and submitting any
applications and requests and applications for the required permits and
licenses in favor of JMS to undertake a proposed building expansion on
the parcel specified on Schedule 3.08. The provisions of this Section
3.08 shall survive the expiration or termination for a period of 3
(three) years, unless this Separation Agreement is terminated by P&G
pursuant to Section 8.02.
3.11 TRANSFER OF POSSESSION. Upon the completion of each of the Separation
Projects affecting JMS's Plant, P&G shall notify JMS of the completion
of such Separation Project and shall tender possession to JMS of such
completed work and shall quitclaim all of P&G's rights, if any, to the
equipment and materials installed on JMS's parcel as a result of P&G's
performance of the Separation Projects hereunder and the risk of loss
for all such equipment and materials shall at such time immediately
transfer to JMS as of such transfer of possession.
ARTICLE IV
SEPARATION COSTS
4.01 COST OF SEPARATION. P&G shall bear all costs and expenses exclusively
related to the Separation Projects. The responsibility, cost and
expense for P&G's Separation Project shall include the engineering,
construction and other direct costs and expenses of the Separation and
the following where required: (a) any repair of any damage to JMS's
Plant caused by P&G as a result of its execution of any Separation
Project on JMS's parcel, (b) any upgrades to JMS's Plant which may be
required by Applicable Laws as a condition to completion of any of the
Separation Projects on JMS's parcel and where such condition cannot be
otherwise waived or where such upgrades cannot be avoided through an
alternate execution of said Separation Projects in a similar
cost-effective manner with JMS's good faith cooperation; or (c) removal
of above-ground dead lines abandoned as a direct result of any of the
Separation Projects performed by P&G pursuant hereto. Any environmental
problem or liabilities shall be governed pursuant to the terms of the
Corporate Agreements.
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ARTICLE V
WARRANTY DISCLAIMER
5.01 LIMITATION OF WARRANTIES. P&G MAKES NO WARRANTY, OTHER THAN THE
WARRANTIES SET FORTH IN THE CORPORATE AGREEMENTS. THE WARRANTIES SET
FORTH THEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SEPARATION
PROVIDED UNDER THIS SEPARATION AGREEMENT SHALL BE SUFFICIENT TO ALLOW
JMS TO SUCCESSFULLY TRANSITION, SEPARATE, MANAGE OR OPERATE THE
BUSINESS.
5.02 JMS agrees and recognizes that P&G shall have no liability, direct or
indirect, for any damages, delays, or other effects on JMS or JMS's
operations due to interruptions, delays or other inability to perform
the Separation provided to JMS hereunder, except as provided in Section
6.02 or as may be due to the sole negligence or willful misconduct of
P&G or P&G's agents, contractors or representatives or P&G's breach or
non-performance of its obligations under this Separation Agreement.
ARTICLE VI
INDEMNIFICATION
6.01 JMS'S INDEMNIFICATION. JMS shall defend, indemnify, and hold P&G, its
Affiliates, agents, contractors and representatives harmless from and
against:
(a) all claims, losses, liabilities, damages, costs and expenses
(including without limitation reasonable attorney's fees and
expenses incurred in any investigation or defense of any
third-party Action) (collectively "Demands"), arising out of
or related to a breach by JMS, its agents, contractors or
representatives, of JMS's duties, obligations, or
representations and warranties under this Separation
Agreement;
(b) all Demands arising from personal injury to employees of JMS,
its Affiliates, agents, contractors or representatives (or of
any entity(ies) designated by JMS) while at P&G's Plant or
other facility to receive the Separation Projects under this
Separation Agreement, to the extent such Demands do not result
from the negligence of P&G or its Affiliates, agents,
contractors or representatives; and
(c) all costs and expenses of P&G (including without limitation
reasonable fees and expenses of attorneys) incurred in
connection with the successful enforcement of any rights of
P&G under the indemnity provided in this Section 6.01.
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6.02 P&G'S INDEMNIFICATION. P&G shall defend, indemnify and hold JMS, its
Affiliates, its agents, contractors and representatives harmless from
and against:
(a) all Demands arising out of or relating to a breach by P&G, its
Affiliates, agents, contractors or representatives, of P&G's
duties, obligations, or representations and warranties under
this Separation Agreement; and
(b) all Demands arising from personal injury to employees of P&G,
its Affiliates, agents, contractors or representatives (or of
any entity(ies) designated by P&G), while at JMS's Plant or of
JMS's contractors to provide Separation Projects and services
under this Separation Agreement, to the extent such Demands do
not arise from the negligence of JMS or of JMS's agents,
contractors or representatives; and
(c) all costs and expenses of JMS (including without limitation
reasonable fees and expenses of attorneys) incurred in
connection with the successful enforcement of any rights of
JMS under the indemnity provided in this Section 6.02.
6.03 DAMAGE LIMITATIONS.
(a) Notwithstanding anything to the contrary in the Merger
Agreement, Contribution Agreement, or any other Transaction
Documents, none of P&G nor JMS shall be permitted to recover
any consequential, indirect, or punitive damages arising out
of or related to this Separation Agreement, regardless of the
form of the Demand, Claim or Action, including without
limitation Demands, Claims or Actions for indemnification,
tort, breach of contract, warranty, representation or
covenant.
(b) P&G's aggregate liability arising out of or related to
breaches of representations and warranties, set forth in this
Separation Agreement, regardless of the form of the Claim or
Action, including, without limitation, Claims or Actions for
indemnification, tort, breach of contract, covenant, warranty
or representation, is limited to the amount by which all such
liabilities exceed Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars
($100,000), and in no event shall P&G's aggregate liability
exceed a total of Twelve Million United States Dollars
($12,000,000). Notwithstanding the foregoing, JMS shall only
bring a Claim or Action pursuant to Section 6.02, if such
Claim or Action exceeds the amount of Ten Thousand United
States Dollars ($10,000).
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(c) JMS's aggregate liability arising out of or related to
breaches of representations and warranties set forth in the
Ancillary Agreements (except the Merger Agreement), regardless
of the form of the Claim or Action, including without
limitation Claims or Actions for indemnification, tort, breach
of contract, warranty or representation, is limited to the
amount by which all such liabilities exceed Xxx Xxxxxxx
Xxxxxxxx Xxxxxx Xxxxxx Dollars ($100,000), and in no event
shall JMS's aggregate liability exceed a total of Twelve
Million United States Dollars ($12,000,000). Notwithstanding
the foregoing, P&G shall only bring a Claim or Action pursuant
to Section 6.01, if such Claim or Action exceeds the amount of
Ten Thousand United States Dollars ($10,000).
(d) In the event any Claim or Action hereunder results in a Tax
benefit or is an insured loss to the indemnified Person, the
indemnifying Person shall be entitled to a credit against any
liability thereunder in the amount by which any Taxes of the
indemnified Person shall be reduced by reason of any deduction
or adjustment allowed the indemnified Person for any payment,
settlement or satisfaction of such claim, as well as in the
amount of and to the extent of any insurance proceeds to which
the indemnified Person is entitled. For the purposes hereof,
it shall be presumed that the maximum possible Tax benefit is
derived in the shortest time period possible.
ARTICLE VII
TERM
7.01 TERM OF AGREEMENT. This Separation Agreement shall commence on the
Closing Date and shall continue (unless sooner terminated pursuant to
the terms hereof) until the end of the Separation Period.
7.02 SEPARATION PERIOD. P&G agrees to complete the Separation Projects more
fully described herein, no later than at the expiration date of the
Separation Period. The "Separation Period" shall commence on Closing
and shall end no later than eighteen (18) months after Closing Date, or
as such Separation Period may be extended by mutual agreement between
the Parties or pursuant to Section 9.04 hereof, or as may be extended
as a result of Section 8.02(b).
ARTICLE VIII
TERMINATION/EXPIRATION
8.01 TERMINATION. This Separation Agreement may be terminated prior to the
end of the Separation Period only by consent of JMS and P&G.
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8.02 DEFAULTS.
(a) In addition to any other rights or remedies JMS or P&G may
have at law or in equity, upon the occurrence of either or
both of the following events:
(i) a breach by one party of any of its obligations
hereunder, and such breach is not cured or started to
cure within thirty (30) Business Days after receipt
of notice of such default by such party; or
(ii) the filing by or against a party of a petition in
bankruptcy, or any appointment of a receiver for a
party or any substantial part of its assets, or any
assignment for the benefit of a party's creditors, or
upon a party becoming insolvent (a party described in
either clause (i) or clause (ii) is called the
"Defaulting Party"; the other party is called the
"Non-Defaulting Party").
(b) The Non-Defaulting Party may terminate this Separation
Agreement by giving written notice to the Defaulting Party of
the Non-Defaulting Party's intention to terminate this
Separation Agreement. Such notice shall identify a date for
termination of this Separation Agreement, which date shall not
be sooner than five (5) Business Days after receipt of such
notice by the Defaulting Party ("Separation Agreement
Termination Date"). If the event on which the notice is based
is not cured prior to the Separation Agreement Termination
Date, then this Separation Agreement shall terminate on the
Termination Date. The Non-Defaulting Party shall further be
entitled to either (i) seek specific performance for the
Defaulting Party's obligations hereunder (without giving
effect to the termination), or (ii) to seek a resolution of
any such dispute in accordance the terms of Section 5.03 of
the Contribution Agreement, prior to seeking any
indemnification or any other remedies hereunder.
(c) Each of the Parties acknowledges and agrees that the other
Party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached.
Accordingly, each of the Parties agrees that the other Party
shall be entitled to seek an injunction or injunctions to
prevent breaches of the provisions of this Agreement. Each of
the Parties acknowledges and agrees that the remedies of
specific performance, injunction and other forms of equitable
relief are subject to certain principles of equity
jurisdiction, equitable defenses and the discretion of the
court before which any proceeding therefor may be brought.
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8.03 EFFECT ON OTHER AGREEMENTS/SURVIVAL OF CERTAIN PROVISIONS. Termination
of this Separation Agreement shall have no effect on any other
agreements between JMS and P&G, unless an effect is mutually and
specifically agreed in writing between the parties. The termination of
this Separation Agreement shall not relieve either Party of any
liability to the other based on acts or omissions prior to the
termination of this Separation Agreement. Subject to Section 9.05, the
obligations set out in Article 6 shall survive termination of this
Separation Agreement.
ARTICLE IX
MISCELLANEOUS
9.01 ENTIRE AGREEMENT. The Transaction Documents constitute the entire
agreement among P&G, certain of P&G's Affiliates, and JMS with respect
to, among other things, the provision by P&G of the Separation provided
for herein. In the event of any inconsistency between the Transaction
Documents and any subsequently-issued document, including without
limitation a written purchase order, the Transaction Documents shall
prevail.
9.02 INDEPENDENT CONTRACTOR STATUS. P&G is acting pursuant to this
Separation Agreement as an independent contractor and this Separation
Agreement does not constitute P&G as the agent or legal representative
of JMS for any purpose whatsoever. This Separation Agreement does not
constitute and is not to be construed as constituting an agent
relationship, partnership or joint venture between the P&G and the JMS.
Neither party has any right to obligate or bind the other party in any
manner. No joint venture of partnership between P&G and JMS is
intended, has been created nor shall be in any way inferred from this
Separation Agreement.
9.03 NON SOLICITATION/HIRING OF P&G'S EMPLOYEES.
(a) Notwithstanding any other provision of this Separation
Agreement, the Merger Agreement, the Contribution Agreement,
or the Confidentiality Agreement, and except as P&G and JMS
agree otherwise in writing, JMS agrees that it shall not (and
JMS shall cause its Affiliates not to), for a period of two
(2) years from the date of this Separation Agreement, hire,
solicit (other than by means of general advertisement not
directed to such employees) or enter into any form of
consulting arrangement or agreement with, any employee, other
than Newco Employees, employed by P&G in its Global Business
Services ("GBS") business unit as of the Effective Time, or
any other employee of P&G whom JMS came into contact with as a
result of the transactions contemplated by this Separation
Agreement, nor shall JMS (and JMS shall cause its Affiliates
not to) solicit or otherwise induce any such employees of P&G
to enter into any type of employment or consulting
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arrangement or agreement that would be prohibited by this
Section 9.03(a). JMS acknowledges that (i) this provision is
reasonable, (ii) P&G would not enter into this Separation
Agreement without JMS agreeing to and complying with this
Section 9.03(a), (iii) P&G would suffer irreparable harm upon
JMS's violation of this provision and (iv) P&G shall be
entitled to obtain a temporary restraining order and/or
injunction upon JMS's breach of this provision.
(b) Notwithstanding any other provision of this Separation
Agreement, the Merger Agreement, the Contribution Agreement,
or the Confidentiality Agreement, and except as P&G and JMS
agree otherwise in writing, P&G agrees that it shall not (and
P&G shall cause its Affiliates not to), for a period of two
(2) years from the date of this Separation Agreement, hire,
solicit (other than by means of general advertisement not
directed to such employees) or enter into any form of
consulting arrangement or agreement with, any employee
employed by JMS as of the Effective Time and involved in the
transaction contemplated by this Separation Agreement, nor
shall P&G (and P&G shall cause its Affiliates not to) solicit
or otherwise induce any such employees of JMS to enter into
any type of employment or consulting arrangement or agreement
that would be prohibited by this Section 9.03(b). P&G
acknowledges that (i) this provision is reasonable, (ii) JMS
would not enter into this Separation Agreement without P&G
agreeing to and complying with this Section 9.03(b), (iii) JMS
would suffer irreparable harm upon P&G's violation of this
provision and (iv) JMS shall be entitled to obtain a temporary
restraining order and/or injunction upon P&G's breach of this
provision.
9.04 FORCE MAJEURE. Neither Party (the "Affected Party") shall be liable to
the other party (the "Non-Affected Party") for failure to perform any
part of this Separation Agreement if such failure results from an act
of God, war, revolt, revolution, sabotage, actions of a Governmental
Entity, laws, regulations, embargo, fire, strike, other labor trouble,
or any cause beyond the control of the Affected Party other than
financial difficulties of such party. Upon the occurrence of any such
event which results in, or shall result in, delay or failure to perform
according to the terms of this Separation Agreement, the Affected Party
shall promptly give notice to the Non-Affected Party of such occurrence
and the effect and/or anticipated effect of such occurrence. The
Affected Party shall use its prompt, reasonable and continuous efforts
to minimize disruptions in its performance and to resume performance of
its obligations under this Separation Agreement as soon as practicable;
provided, however, the resolution of any strike or labor trouble shall
be within the sole discretion of the Affected Party.
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9.05 LIMITATION. No Party may initiate any Claim nor shall any Party be
responsible for any Action arising out of or related to a breach of a
representation or warranty, regardless of the form of the Claim or
Action, including, without limitation, indemnification, tort, breach of
contract, warranty or representation, unless such Claim or Action is
commenced within nine (9) months after the completion (in accordance
with this Separation Agreement) of each of the individual components of
the Separation Projects, or the termination of this Separation
Agreement.
9.06 DISPUTE RESOLUTION. P&G and JMS agree to first attempt to resolve any
disputes arising out of the separation projects by entering into good
faith negotiations by and between appropriate employees and officers.
Any dispute which has not been resolved by such negotiations, shall be
determined by arbitration, in accordance with the terms and conditions
of Section 5.03 of the Contribution Agreement.
9.07 NOTICES. All notices required or permitted to be given under this
Separation Agreement shall be in writing and shall be deemed to be
property given when actually received by the Person entitled to receive
the notice at the address stated below, or at such other address as P&G
or JMS may provide by notice to the other:
P&G: The Procter & Xxxxxx Company
Address: 0 X&X Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Secretary
Legal Division
Fax: 000-000-0000
With copies to: The Procter & Xxxxxx Company
Address: 0 X&X Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Secretary
Fax: (000) 000-0000
JMS: The X.X. Xxxxxxx Company
Address: Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Vice President of Operations
Fax: (000) 000-0000
With copies to: The X.X. Xxxxxxx Company
Address: Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
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9.08 SUCCESSORS AND ASSIGNS. Neither party may assign this Separation
Agreement, other than to an Affiliate (as defined in the Corporate
Agreements) of that party, without the express written consent of the
other party, which consent shall not be unreasonably withheld.
9.09 GOVERNING LAW. This Separation Agreement and the rights and obligations
of P&G and JMS shall at all times be governed by and construed in
accordance with the laws of the State of Ohio.
9.10 TAXES. JMS and P&G each agree to be responsible for their own income
(gross or net), real or personal property taxes that arise from the
performance of the Separation Projects pursuant to this Separation
Agreement. In the event that any state or local jurisdiction assesses
sales or use taxes upon this transaction or the Separation provided
herein, the service recipient agrees to promptly indemnify and
reimburse the service provider for the taxes and other costs imposed by
the jurisdiction. P&G and JMS shall also cooperate and use reasonable
efforts to assure that, after Closing, the JMS's Parcels and JMS's
Plant are assessed separately from P&G's property for real estate tax
purposes; provided, however, that if separate assessments are not made
for any period, P&G and JMS shall make an equitable allocation of any
jointly assessed property taxes and shall pay their respective portions
of such taxes in a timely manner. This clause shall survive the
termination of this Separation Agreement and remain in effect for a
period of seven years from the date of termination.
9.11 SECTION HEADINGS. The headings contained in this Separation Agreement
are inserted only as a matter of convenience and for reference and in
no way define, limit or describe the scope or intent of this Separation
Agreement.
9.12 COUNTERPARTS. This Separation Agreement may be executed in any number
of counterparts, each of which shall be deemed an original for all
purposes and all of which together shall constitute one and the same
instrument.
9.13 CONFIDENTIALITY. If, in the course of performing any of the
transactions contemplated hereunder, either party (a "Receiving Party")
shall become aware of any information with respect to the other party's
plant and/or the businesses conducted thereat (a "Protected Party")
which is non-public, confidential or proprietary in nature, such
Receiving Party shall keep same strictly confidential and shall not,
without the prior written consent of the Protected Party disclose any
thereof to any person for any purpose. The parties acknowledge that a
Protected Party would be irreparably injured by a breach of this
obligation by Receiving Party and that the Protected Party shall be
entitled to monetary and equitable relief (including injunctive relief
and/or specific performance) in the event of any breach of the
provisions
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hereof. The provisions of this Section 9.13 shall survive the
expiration or termination of this Separation Agreement.
9.14 WAIVER. Any waiver by either party of any rights arising under this
License Agreement, including but not limited to any waiver arising from
any breach by the other party, shall not be construed as a waiver of
other rights or the same or similar nature or other terms of this
Separation Agreement. No waiver shall be effective unless such waiver
is provided in writing.
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IN WITNESS WHEREOF, the parties have signed this Separation Agreement on the
date first set forth above.
THE PROCTER & XXXXXX THE X.X XXXXXXX COMPANY
COMPANY
By:__________________________ By:_____________________________
Name printed:__________________ Name printed:____________________
Title:_________________________ Title:____________________________
