EXHIBIT 10.4
================================================================================
FORM OF
EMPLOYEE
BENEFITS
ALLOCATION AGREEMENT
BETWEEN
XXXX CORPORATION
AND
ARCH CHEMICALS, INC.
================================================================================
TABLE OF CONTENTS
ARTICLE I
Definitions
-----------
Section 1.1. General.............................................. 1
ARTICLE II
U.S. Plans and Stock Plans
--------------------------
Section 2.1. Qualified Retirement Plan............................ 8
Section 2.2. Supplemental Retirement Plans and
Employment Agreements................................ 11
Section 2.3. Qualified Defined Contribution Plan.................. 13
Section 2.4. Welfare Plans........................................ 14
Section 2.5. Options.............................................. 17
Section 2.6. Executive and Director Compensation
Plans.............................................. 20
ARTICLE III
Foreign Plans
-------------
Section 3.1. General Principles................................... 22
Section 3.2. Exceptions to General Principles..................... 22
ARTICLE IV
General Provisions
------------------
Section 4.1. Employment Transfers; Severance Pay.................. 23
Section 4.2. Recognition of Olin Employment
Service, Etc......................................... 23
Section 4.3. Workers' Compensation................................ 24
ARTICLE V
Miscellaneous
-------------
Section 5.1. Guarantee of Subsidiaries'
Obligations.......................................... 24
Section 5.2. Disputes............................................. 24
Section 5.3. Sharing of Information............................... 24
Section 5.4. Termination.......................................... 25
Section 5.5. Rights to Amend or Terminate Plans;
No Third Party Beneficiaries......................... 25
Section 5.6. Complete Agreement................................... 25
Section 5.7. Governing Law........................................ 25
Section 5.8. Notices.............................................. 26
Section 5.9. Amendment and Modification........................... 26
Section 5.10. Successors and Assigns............................... 26
Section 5.11. Consent to Jurisdiction.............................. 27
Section 5.12. Counterparts......................................... 27
Section 5.13. Interpretation....................................... 27
Section 5.14. Legal Enforceability................................. 28
Section 5.15. References, Construction............................. 28
EMPLOYEE BENEFITS ALLOCATION AGREEMENT, dated as of
February 8, 1999, by and between Xxxx Corporation, a Virginia
corporation ("Olin"), and Arch Chemicals, Inc., a Virginia
corporation ("Arch").
W I T N E S S E T H:
WHEREAS Olin and Arch have entered into that certain Distribution
Agreement dated as of the date hereof, between Olin and Arch (the "Distribution
Agreement"), providing for the distribution to the holders of the issued and
outstanding shares of common stock, par value $1.00 per share, of Olin ("Olin
Common Stock") all of the issued and outstanding shares of common stock, par
value $1.00 per share, of Arch ("Arch Common Stock");
WHEREAS the Distribution is intended to qualify as a tax-free
transaction under Sections 355 and 368(a)(1)(D) of the Internal Revenue Code of
1986, as amended (the "Code");
WHEREAS the Distribution Agreement, among other things, sets forth the
principal corporate transactions required to effect the Distribution and sets
forth other agreements that will govern certain other matters prior to and
following the Distribution; and
WHEREAS in connection with the Distribution and pursuant to the
Distribution Agreement, Olin and Arch desire to provide for the allocation of
assets and Liabilities and other matters relating to employee benefit plans and
compensation arrangements.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
Definitions
-----------
Section 1.1. General. Any capitalized terms that are used in this
--------
Agreement but not defined herein (other than the names of Olin employee benefit
plans) shall have the meanings set forth in the Distribution Agreement, and, as
used herein, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Agreement": this Employee Benefits Allocation Agreement.
---------
"Alternate Payee": an alternate payee under a domestic relations
---------------
order which has been determined by the appropriate Plan administrator to be
qualified under Section 414(p) of the Code and Section 206(d) of ERISA and which
creates or recognizes an alternate payee's right to, or assigns to an alternate
payee, all or a portion of the benefits payable to a participant under any Plan,
or an alternate recipient under a medical child support order which has been
determined by the appropriate Plan administrator to be qualified under Section
609(a) of ERISA and which creates or recognizes the existence of an alternate
recipient's right to, or assigns to an alternate recipient the right to, receive
benefits for which a participant or beneficiary is eligible under any Plan.
"Arch": defined in the preamble.
----
"Arch Common Stock": defined in the recitals.
-----------------
"Arch Employee": any individual who is, as of the Distribution Date,
-------------
identified on the records of Arch as being, an Employee of any member of the
Arch Group (including an individual who is receiving long-term disability
benefits on the Distribution Date and whose most recent active employment was
with any member of the Pre-Distribution Group in the Arch Business). If such an
individual has received notice of layoff or termination from Olin or any of its
Affiliates prior to the Distribution Date, he or she shall not be considered to
be an Arch Employee on the Distribution Date if he or she is listed on Schedule
A hereto. Individuals who are leased to Arch by Olin as of the Distribution
Date are not considered Arch Employees.
3
"Arch Foreign Plan": a Foreign Plan provided by, contributed to or
-----------------
sponsored by one or more members of the Arch Group.
"Arch Former Employee": any individual who is, as of the Distribution
--------------------
Date, identified on the records of Olin as being an Arch Former Employee, which
identification shall have been made based upon a good faith determination by
Olin and Arch that (i) such individual was, at any time before the Distribution
Date, an employee of any member of the Pre-Distribution Group, (ii) such
individual is not an Olin Employee or an Arch Employee, and (iii) such
individual's most recent active employment was with any such member of the Arch
Business; provided that, if at any time on or before December 31, 1999, Arch and
--------
Olin determine that any one or more individuals were identified as Arch Former
Employees in error and should have been identified as Xxxx Former Employees and
agree to correct such error, such individuals shall be considered Olin Former
Employees and Arch and Olin shall use their reasonable best efforts to implement
the terms of this Agreement as they apply to such individuals as if such
individuals had been correctly identified as of the Distribution Date.
"Arch Group": Arch and its Subsidiaries after the Distribution.
----------
"Arch Option": an option to purchase from Arch shares of Arch Common
-----------
Stock provided to an Arch Participant or an Olin Participant pursuant to Section
2.5.
"Arch Participant": any individual who is an Arch Employee, an Arch
----------------
Former Employee, or a Beneficiary of such an individual.
"Arch Ratio": the amount obtained by dividing (i) the opening price
----------
on the first day of regular way trading of the Arch Common Stock on the NYSE
Composite Tape, as reported in The Wall Street Journal, by (ii) the closing
price on the last day of trading of Olin Common Stock with due bills on the NYSE
Composite Tape, as reported in The Wall Street Journal.
"Arch Restricted Stock Units": units representing shares of Arch
---------------------------
Common Stock granted pursuant to an Arch Plan.
4
"Arch SAR": a stock appreciation right granted with respect to Arch
--------
Common Stock in accordance with Section 2.5.
"Arch SIP": the Qualified Plan established by Arch pursuant to
--------
Section 2.3(a).
"Arch U.S. Welfare Plan": an Arch Welfare Plan that is a U.S. Plan.
----------------------
"Arch Welfare Plan": a Welfare Plan sponsored by one or more members
-----------------
of the Arch Group.
"Assigned Split Dollar Policies": defined in Section 2.4(c).
------------------------------
"Beneficiary": a beneficiary, dependent or Alternate Payee or estate
-----------
of a participant in a Plan, in each case in his, her or its capacity as such a
beneficiary, dependent, Alternate Payee or estate.
"Code": defined in the recitals.
----
"Deferred Compensation Plan": a Plan, other than a Qualified Plan or
--------------------------
a Supplemental Retirement Plan, providing deferred compensation.
"Distribution Agreement": defined in the recitals.
----------------------
"Distribution Ratio": the ratio of one share of Arch Common Stock to
------------------
two shares of Olin Common Stock.
"Employee": with respect to any entity, an individual who is
--------
considered, according to the payroll and other records of such entity, to be
employed by such entity, regardless of whether such individual is, at the
relevant time, actively at work or on leave of absence (including vacation,
holiday, sick leave, family and medical leave, disability leave, military leave,
jury duty, and any other leave of absence or similar interruption of active
employment that is not considered, according to the policies or practices of
such entity, to have resulted in a permanent termination of such individual's
employment).
"Enrolled Actuary": with respect to all U.S. Plans, The Xxxxx
----------------
Company, and, with respect to all Foreign Plans, an enrolled actuary or other
party making actuarial
5
or similar determinations pursuant to this Agreement with respect to assets or
Liabilities relating to a particular employee benefit plan selected by Olin with
the approval of Arch, which approval shall not be unreasonably withheld.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended, or any successor legislation, and the regulations promulgated
thereunder.
"Foreign Plan": any Plan maintained outside of the United States
------------
primarily for the benefit of individuals substantially all of whom are
nonresident aliens with respect to the United States.
"New Olin Option": defined in Section 2.5(b).
---------------
"Olin": defined in the preamble.
----
"Olin CEOP": the Xxxx Corporation Contributing Employee Ownership
---------
Plan.
"Olin CEOP Trust": the trust established to fund the Olin CEOP.
---------------
"Olin Common Stock": defined in the recitals.
-----------------
"Olin Employee": any individual who is, as of the Distribution Date,
-------------
identified on the records of Olin as being an Employee of any member of the Olin
Group (excluding an individual who is receiving long-term disability benefits on
the Distribution Date and whose most recent active employment was with any
member of the Pre-Distribution Group in the Arch Business); provided, however,
-------- -------
that an Employee of Olin or its Affiliates on the Distribution Date who becomes
a Subsequent Arch Employee shall not be considered an Olin Employee once he or
she becomes a Subsequent Arch Employee.
"Olin Foreign Plan": a Foreign Plan provided by, contributed to or
-----------------
sponsored by one or more members of the Olin Group.
"Olin Former Employee": any individual who was, at any time before
--------------------
the Distribution Date, an Employee of any member of the Pre-Distribution Group,
and who is not an Olin Employee, an Arch Employee or an Arch Former Employee;
provided that, if at any time on or before December 31, 1999, Arch and Olin
determine that any one or more
6
individuals were identified as Xxxx Former Employees in error and should have
been identified as Arch Former Employees, and agree to correct such error, such
individuals shall be considered Arch Former Employees, and Arch and Olin shall
use their reasonable best efforts to implement the terms of this Agreement as
they apply to such individuals as if such individuals had been correctly
identified as of the Distribution Date.
"Olin Group": Olin and its Subsidiaries after the Distribution.
----------
"Olin Incentive Plans": collectively, the 1980 Stock Option Plan for
--------------------
Key Employees of Xxxx Corporation and Subsidiaries (the "1980 Olin Stock Option
Plan"); the 1988 Stock Option Plan for Key Employees of Xxxx Corporation and
Subsidiaries (the "1988 Olin Stock Option Plan"); the 1996 Stock Option Plan for
Key Employees of Xxxx Corporation and Subsidiaries (the "1996 Olin Stock Option
Plan"); and the Olin 1991 Long-Term Incentive Plan, each as in effect on the
Distribution Date.
"Olin Option": an option to purchase shares of Olin Common Stock
-----------
granted pursuant to any of the Olin Incentive Plans.
"Olin Participant": any individual who is an Olin Employee, an Olin
----------------
Former Employee, or a Beneficiary of such an individual.
"Olin Pension Plan": the Xxxx Corporation Employees Pension Plan.
-----------------
"Olin Ratio": the amount obtained by dividing (i) the opening price
----------
of Olin Common Stock on the first day of trading ex-dividend (the trading day
after due xxxx trading ends) on the NYSE Composite Tape, as reported in The Wall
Street Journal, by (ii) the closing price on the last day of trading of Olin
Common Stock with due bills on the NYSE Composite Tape, as reported in The Wall
Street Journal.
"Olin Restricted Stock Units": units representing restricted shares
---------------------------
of Olin Common Stock granted pursuant to, and subject to forfeiture under, any
of the Olin Incentive Plans.
"Olin Supplemental Plans": collectively, the Xxxx Corporation Senior
-----------------------
Executive Benefit Plan, the Olin
7
Supplementary Pension Plan, Olin Deferral Benefit Pension Plan and the Olin
Supplemental Contributory Employee Ownership Plan, each as in effect on the
Distribution Date.
"Olin U.S. Welfare Plan": any Olin Welfare Plan that is a U.S. Plan.
----------------------
"Olin Welfare Plan": any Welfare Plan of one or more members of the
-----------------
Olin Group.
"Plan": any written or unwritten plan, policy, program, payroll
----
practice, ongoing arrangement, trust, fund, contract, insurance policy or other
agreement or funding vehicle provided by, contributed to or sponsored by one or
more members of the Olin Group or the Arch Group, providing benefits to Olin
Participants or Arch Participants, regardless of whether it is mandated under
local law or negotiated or agreed to as a term or condition of employment or
otherwise, and regardless of whether it is governmental, private, funded,
unfunded, financed by the purchase of insurance, contributory or
noncontributory.
"Pre-Adjustment Option": defined in Section 2.5(b).
---------------------
"Pre-Distribution Group": the Olin Group and the Arch Group together,
----------------------
as in effect immediately prior to the Distribution Date.
"Qualified Plan": a Plan that is an "employee pension benefit plan"
--------------
as defined in Section 3(2) of ERISA that constitutes, or is intended in good
faith to constitute, a qualified plan under Section 401(a) of the Code.
"Retained Arch Inactive Participant": any Arch Former Employee who is
----------------------------------
a retired or terminated vested participant in the Olin Pension Plan whose
termination under the Olin Pension Plan occurred prior to the Distribution Date,
or a Beneficiary of any such Arch Former Employee.
"Subsequent Arch Employee": any individual who is identified as an
------------------------
Olin Employee as of the Distribution Date but who becomes an Employee of any
member of the Arch Group after the Distribution Date but on or prior to February
8, 2000. An individual ceases to be an Olin Employee when he or she becomes a
Subsequent Arch Employee.
8
"Subsequent Olin Employee": any individual who is identified as an
------------------------
Arch Employee as of the Distribution Date but who becomes an Employee of any
member of the Olin Group after the Distribution Date but on or prior to February
8, 2000. An individual ceases to be an Arch Employee when he or she becomes a
Subsequent Olin Employee.
"Successor Plan": defined in Section 2.1(a).
--------------
"Supplemental Employment Agreement": any written enforceable
---------------------------------
agreement (other than Tier I Executive Agreements and Tier II Change in Control
Agreements) between any member of the Pre-Distribution Group and any single Olin
Employee, Olin Former Employee, Arch Employee or Arch Former Employee providing
for post-retirement income, pension or welfare benefits (other than pursuant to
a Welfare Plan, a Qualified Plan or a Supplemental Retirement Plan).
"Supplemental Retirement Plan": a U.S. Plan that is (i) an "employee
----------------------------
pension benefit plan" within the meaning of Section 3(2) or ERISA but is not a
Qualified Plan, or (ii) an excess benefit plan under ERISA, including the Olin
Supplementary Pension Plan, Xxxx Corporation Senior Executive Benefit Plan and
the Olin Supplemental Contributing Employee Ownership Plan.
"U.S. Plan": any Plan that is not a Foreign Plan.
---------
"Welfare Plan": any Foreign Plan or U.S. Plan that is an "employee
------------
welfare benefit plan" as defined in Section 3(l) of ERISA (whether or not such
plan is subject to ERISA).
ARTICLE II
U.S. Plans and Stock Plans
--------------------------
Section 2.1. Qualified Retirement Plan. Olin and Arch shall take all
--------------------------
steps necessary or appropriate so that the provisions of this Section 2.1 are
implemented in a timely fashion, as more fully set forth below.
(a) Establishment of Successor Plan. On or prior to the Distribution
--------------------------------
Date, Arch shall establish a defined benefit pension plan that is a Qualified
Plan (the "Successor Plan") that contains terms substantially similar to the
terms in the Olin Pension Plan for the benefit of Arch Employees and Subsequent
Arch Employees. Arch agrees
9
that each Arch Employee or Subsequent Arch Employee shall (i) immediately become
eligible to participate in the Successor Plan as of the Distribution Date (or in
the case of a Subsequent Arch Employee, as of the date of transfer) and (ii) for
all purposes (other than eligibility) under the Successor Plan, be entitled to
service, compensation and the accrued benefit credited to such Arch Employee as
of the Distribution Date (or in the case of a Subsequent Arch Employee, as of
the date of transfer) under the terms of the Olin Pension Plan as if such
service had been rendered to Arch, as if such compensation had been paid by Arch
and as if such accrued benefit had originally been credited to such Arch
Employee or Subsequent Arch Employee under the Successor Plan.
(b) Transfer of Assets and Liabilities to the Successor Plan.
---------------------------------------------------------
Subject to the completion of the asset transfer described in the next paragraph,
Olin shall arrange for the transfer from the Olin Pension Plan to the Successor
Plan and the Successor Plan shall assume and be responsible for all Liabilities
of the Olin Pension Plan with respect to benefits accrued by Arch Employees and
Subsequent Arch Employees (including disability pensions) through the
Distribution Date (or through the date of transfer in the case of a Subsequent
Arch Employee) and, effective upon such transfer, the members of the Olin Group
shall have no further responsibility for such Liabilities. All Liabilities of
the Olin Pension Plan attributable to Retained Arch Inactive Participants shall
be retained by the Olin Pension Plan and the members of the Arch Group shall
have no responsibility for such Liabilities.
As soon as practicable after the Distribution Date, Olin shall cause
to be transferred from the trust established under the Olin Pension Plan to the
trust established under the Successor Plan a portion of the assets thereof, as
provided hereinbelow. As soon as practical following the Distribution Date, the
Enrolled Actuary will estimate preliminarily the amount of assets to be
transferred by multiplying the fair market value of the assets in the trust
established under the Olin Pension Plan as of the last day of the month prior to
the Distribution Date by the ratio of (x) the Liabilities attributable to Arch
Employees which shall be equal to the projected benefit obligations determined
as of the Distribution Date of Arch Employees who are participants in the Olin
Pension Plan to (y) all Liabilities under the Olin Pension Plan which shall be
equal to the projected benefit obligations determined as
10
of the Distribution Date of all participants in the Olin Pension Plan (including
Arch Former Employees and Olin Former Employees). Projected benefit obligations
will be determined based on the assumptions used for purposes of Financial
Accounting Standards No. 87 in the disclosure footnote in Olin's 1998 Annual
Report to Shareholders (the "FAS 87 Assumptions"). If necessary, the amount
determined to be transferred will be adjusted to comply with Code Section 414(l)
as a result of the transfer to and assumption of Liabilities by the Successor
Plan, as reasonably and equitably determined by the Enrolled Actuary using the
asset allocation methodology set forth in Section 4044 of ERISA, the PBGC safe
harbor assumptions referred to in Treasury Regulation Section 1.414(l)-
1(b)(5)(ii) and the pre-retirement withdrawal assumption used by Olin in the
above-referenced FAS-87 disclosure. As soon as practicable after the
Distribution Date and after receipt of the opinion of counsel described in
Section 2.1(d) hereof, Olin shall cause 85% of the amount determined above
(increased by interest at the settlement rate included in the FAS-87 Assumptions
from the Distribution Date to the date of such transfer) to be transferred from
the trust under the Olin Pension Plan to the trust established under the
Successor Plan (the "Initial Transfer"). On or about August 31, 1999, Olin will
cause an additional amount to be transferred to the trust established under the
Successor Plan (the "Subsequent Transfer") equal to the excess of (i) the actual
amount to be transferred as determined by the Enrolled Actuary using the
methodology described above, over (ii) the amount previously transferred
provided that such amount will be credited with interest at the settlement rate
included in the FAS-87 Assumptions from the date of the Initial Transfer to the
date of the Subsequent Transfer and shall be reduced by all benefit payments
paid from the Olin Pension Plan to Arch Employees who retire or otherwise
terminate employment on or after the Distribution Date but prior to the date of
actual transfer.
On or about February 1, 2000, the Enrolled Actuary will determine a
net amount ("Net Amount") equal to the greater of the (i) the excess of (A) the
additional assets and related Liabilities that are required to be transferred to
the trust established under the Successor Plan from the trust established under
the Olin Pension Plan as a result of Olin Employees who become Subsequent Arch
Employees over (B) the additional assets and related Liabilities that should be
transferred from the trust established under the Successor Plan to the trust
established under the Olin Plan as a result of Arch Employees who become
Subsequent Olin
11
Employees or (ii) the excess of (B) above over (A). Such Liabilities will be
based on the individual's accrued benefit under the applicable plan as of the
date of transfer of such individual. The assets representing the Net Amount to
be transferred from the appropriate trust shall be based on the same
proportionate percentage as applied in the preceding paragraph; provided,
---------
however, that if necessary, the amount to be transferred will be adjusted to
--------
comply with Code Section 414(l). Interest (at the same rate as was used for the
initial transfer) shall be credited on the Net Amount and transferred along with
the Net Amount to the trust that will be receiving the transfer, which Net
Amount will be transferred to the appropriate trust as soon as practicable.
(c) Union Contracts. Arch shall honor and assume all rights and
----------------
obligations of Olin, and shall become the successor employer under union
contracts covering Arch Employees and such employees will be eligible to
participate in the Successor Plan subject to the provisions of any union consent
required to implement paragraph (a) of this Section 2.1.
(d) Implementation. Arch and Olin shall, in connection with the
---------------
actions taken pursuant to this Section 2.1, cooperate in making any and all
appropriate filings required under the Code or ERISA, and the regulations
thereunder and any applicable securities laws, implementing all appropriate
communications with participants, transferring appropriate records, and taking
all such other actions as may be necessary and appropriate to implement the
provisions of this Section 2.1 in a timely manner and to cause the transfer of
assets pursuant to Section 2.1(b) to take place as soon as practicable after the
Distribution Date (or in the case of a Subsequent Arch Employee, as soon as
practicable following January 31, 2000); provided, however, that such transfer
-------- -------
shall not take place until Olin receives an opinion of counsel satisfactory to
Olin (or a copy of a favorable determination letter from the Internal Revenue
Service) to the effect that the Successor Plan is in form qualified under
Section 401(a) of the Code, and the related trust is in form exempt under
Section 501(a) of the Code.
Section 2.2. Supplemental Retirement Plans and Employment Agreements.
--------------------------------------------------------
(a) Establishment of Successor Supplemental Retirement Plans. On or prior to
---------------------------------------------------------
the Distribution Date, Arch shall establish nonqualified
12
Supplemental Retirement Plans for the benefit of Arch Employees and Subsequent
Arch Employees that will contain terms that are substantially similar to those
contained in the Olin Supplemental Plans. Arch agrees that each Arch Employee
and Subsequent Arch Employee shall, for all purposes under the Supplemental
Retirement Plans, be entitled to service, compensation and the accrued benefit
(or account balance, as the case may be) credited to such Arch Employee as of
the Distribution Date (or in the case of a Subsequent Arch Employee, the date of
transfer) under the terms of the Olin Supplemental Plans as if such service had
been rendered to Arch, as if such compensation had been paid by Arch and as if
such accrued benefit (or account balance) had originally been credited to such
Arch Employee under the Supplemental Retirement Plans of Arch provided that in
the case of a Subsequent Arch Employee who is participating in an Arch
Supplemental Retirement Plan that is a defined benefit plan, his or her benefit
from such plan shall be offset by the benefit payable (regardless of whether or
not actually paid) under the comparable Olin Supplemental Plan (assuming the
terms of which do not change after the Distribution Date). All reserves and
liabilities held under the Olin Supplemental Plans with respect to Arch
Employees (who are determined to be Arch Employees on the Distribution Date)
shall be transferred to Arch. Arch shall be responsible for all claims arising
under the Supplemental Retirement Plans with respect to Arch Employees whether
incurred before, on or after the Distribution Date and the Xxxx Group shall have
no responsibility for such claims. All reserves and Liabilities determined
through the date of transfer held under the Olin Supplemental Plans with respect
to Subsequent Arch Employees shall remain with Olin. To the extent an Arch
Employee becomes a Subsequent Olin Employee, any reserves and Liability for such
Arch Employee under such Arch Supplemental Retirement Plan through the date of
transfer shall be retained by Arch and if such individual is participating in an
Olin Supplemental Plan that is a defined benefit plan, his or her benefit from
such plan shall be offset by the benefit payable (regardless of whether or not
actually paid) under the comparable Arch Supplemental Retirement Plan (assuming
the terms which do not change after the Distribution Date). Olin shall include
similar provisions in the Olin Supplemental Plans for Subsequent Olin Employees
as the Arch Supplemental Retirement Plans include for Subsequent Arch Employees.
(b) Olin's Supplemental Plans. Effective as of the Distribution
--------------------------
Date, Olin shall continue to sponsor the
13
Olin Supplemental Plans, subject to the terms thereof. Olin hereby retains all
liability for benefits (whether funded or unfunded) that have accrued prior to
the Distribution Date under the Olin Supplemental Plans with respect to Arch
Former Employees.
(c) Supplemental Employment Agreements. Effective as of the
-----------------------------------
Distribution Date, Arch shall assume and be solely responsible for all
Liabilities of the Pre-Distribution Group relating to Supplemental Employment
Agreements with Arch Employees. Arch and Olin shall cooperate in taking all
actions necessary or appropriate to implement the foregoing, including amending
any Supplemental Employment Agreement and obtaining any necessary consents of
affected individuals.
Section 2.3. Qualified Defined Contribution Plan. (a) Olin CEOP.
------------------------------------ ----------
As of the Distribution Date, Olin and Arch will take such steps as are necessary
or desirable to convert the Olin CEOP into a multiple employer plan in which
both Olin and Arch shall be participating employers. On and after the
Distribution Date, employer contributions made on behalf of Arch Employees will
be made solely by Arch. As of a date to be determined by Arch which may not be
more than two years after the Distribution Date, Arch shall establish an Arch
SIP and shall no longer participate in the Olin CEOP. Under the multiple
employer plan, Arch Employees will become 100% vested in matching contributions
following completion of five years of service (including prior service with
Olin). Arch Common Stock received by Olin Employees in the Olin CEOP as a
result of the Distribution that is attributable to (i) Olin contributions made
before the Distribution may be retained in Arch Common Stock or reinvested in
Olin Common Stock at the participant's election at any time and (ii) employee
contributions may be retained in Arch Common Stock or reinvested in any other
available option under the Olin CEOP at the participant's election at any time.
Except as provided in the preceding sentence, contributions made to or held
under the Olin CEOP on behalf of Olin Employees may not be invested in Arch
Common Stock. Dividends on Arch Common Stock in accounts of Olin Employees will
be reinvested in Olin Common Stock. Olin Common Stock held in the accounts of
Arch Employees that is attributable to (i) Olin contributions made before the
Distribution may be retained in Olin Common Stock or reinvested only in Arch
Common Stock at the participant's election and (ii) employee contributions may
be retained in Olin Common Stock or reinvested in any other available
14
option under the Olin CEOP at the participant's election. Except as provided in
the preceding sentence, contributions after the Distribution Date made to or
held under the Olin CEOP on behalf of Arch Employees may not be invested in Olin
Common Stock. Dividends on Olin Common Stock in accounts of Arch Employees will
be reinvested in Arch Common Stock.
(b) Implementation. Olin and Arch shall cooperate in making all
---------------
appropriate filings required under the Code or ERISA, and the regulations
thereunder and any applicable securities laws, implementing all appropriate
communications with participants, maintaining, and transferring appropriate
records, and taking all such other actions as may be necessary and appropriate
to implement the provisions of this Section 2.3.
Section 2.4. Welfare Plans. (a) Pre-Retirement Welfare Plans. Arch
-------------- -----------------------------
shall take, and shall cause the other members of the Arch Group to take, all
actions necessary or appropriate to establish, on or before the Distribution
Date, Arch U.S. Welfare Plans to provide each Arch Employee and Subsequent Arch
Employee in the United States with benefits substantially similar to the
benefits provided to him or her under the Xxxx U.S. Welfare Plans. The Arch
Group shall assume, and shall be solely responsible for, all Liabilities in
connection with unpaid health care and short-term and long-term disability
claims by or in respect of Arch Employees in the United States for benefits
under the Olin Welfare Plans whether incurred before, on or after the
Distribution Date and the Xxxx Group shall have no responsibility for such
claims. With respect to Subsequent Arch Employees, the Xxxx Group shall assume,
and shall be solely responsible for all Liabilities in connection with unpaid
health care and short-time and long-term disability incurred claims by or in
respect of such individuals prior to their transfer to any member of the Arch
Group and Arch shall be responsible for such claims incurred by or in respect of
such individuals on or subsequent to such transfer. With respect to other
benefits provided under Olin Welfare Plans (including job transition benefits,
accidental death benefits, group-term life insurance and tuition aid): (i) the
Arch Group shall assume, and shall be solely responsible for, all Liabilities
for such claims payable to Arch Employees and/or Subsequent Arch Employees where
the event giving rise to the claim occurs on or after the Distribution Date (or
on or after the date of transfer for Subsequent Arch Employees) and the Xxxx
Group shall have no responsibility for such claims and (ii) the Xxxx Group
15
shall assume, and be responsible for such claims payable to (A) Arch
Participants and Subsequent Arch Employees where the event giving rise to the
claim occurs prior to the Distribution Date (or in the case of a Subsequent Arch
Employee, prior to the date of transfer) and (B) Olin Participants whether the
claim incurred before, on or after the Distribution Date; and the Arch Group
shall have no responsibility for such claims. Claims for tuition aid benefits
shall be considered incurred when the semester or course is successfully
completed.
Olin shall take all actions necessary or appropriate to transfer a proportionate
share of the assets held under the voluntary employee benefit association trust
("VEBA") maintained by Olin and attributable to long-term disability benefits to
a VEBA established by Arch. Such proportionate share shall be equal to the
product of (i) the fair market value of the assets in the VEBA as of the
Distribution Date earmarked for long-term disability benefits and (ii) the ratio
of the Liabilities for long-term disability benefits attributable to Arch
Employees to the Liabilities for long-term disability benefits for Olin
Employees, Olin Former Employees, Arch Employees and Arch Former Employees. In
determining such Liabilities, a 7-1/2% interest assumption shall be used. Olin
shall transfer the same proportionate share of reserves on its books to Arch for
such long-term disability benefits. Olin shall retain responsibility for
continuation health coverage benefits under the Olin Welfare Plans for Arch
Former Employees providing health benefits under ERISA section 601(a) whether
the claims are incurred before, on or after the Distribution Date.
(b) Flexible Spending Account Plan. Prior to the Distribution Date,
-------------------------------
Arch shall establish a flexible spending account plan (which shall provide
benefits substantially similar to the Flexible Spending Account Plan of Xxxx
Corporation) to assume Liabilities of Arch Employees and Subsequent Arch
Employees in the Flexible Spending Account Plan of Xxxx Corporation. As soon as
practicable after the Distribution Date (or in the case of a Subsequent Arch
Employee, the date of transfer), Olin shall transfer to Arch an amount equal to
the monies deducted from the compensation of such individuals during the
calendar year in which the Distribution Date occurs reduced by the amount of
benefits paid under such plan during such year. Olin and Arch shall take all
other action necessary or appropriate so that, effective as of the Distribution
Date, Arch shall assume and be solely responsible for all flexible spending
account
16
Liabilities of such individual under its flexible spending account plan. Olin
shall retain liability for Arch Former Employees and for any claims incurred in
the calendar year preceding the year of the Distribution under the Flexible
Spending Account Plan of Xxxx Corporation.
(c) Assigned Split Dollar and Corporate-Owned Life Insurance
--------------------------------------------------------
Policies. Olin and Arch shall take all actions necessary or appropriate to
---------
assign to Arch, effective as of the Distribution Date, all of the rights and
interests of the Pre-Distribution Group in the split dollar life insurance
policies insuring the lives of Arch Participants pursuant to the Split Dollar
Life Insurance Program (such policies, the "Assigned Split Dollar Policies").
Such actions shall include Arch's acceptance of any collateral assignments,
policy endorsements or such other documentation executed by or on behalf of such
Arch Participants or any trustee of any trust to which any Arch Participant's
policy rights or incidents of ownership under the Assigned Split Dollar Policies
have been assigned, and Arch's entering into such agreements as may be necessary
to fulfill any obligations of Olin to any insurance company or insurance agent
or broker under Assigned Split Dollar Policies. From and after the date of the
assignment of any Assigned Split Dollar Policy to Arch, Arch shall assume and be
solely responsible for all Liabilities, and shall be entitled to all benefits,
of the Pre-Distribution Group to the applicable Arch Participant under his or
her Split Dollar Policy, including under any related agreements entered into by
such Arch Participant or any such trustee.
Olin shall retain and pay any premiums or take any action required to keep any
corporate-owned life insurance ("COLI") insuring the lives of Arch Participants
in force. Olin shall be entitled to the life insurance proceeds when payable
and Olin shall pay the related $5,000 to the Arch Participant's Beneficiary when
payable in accordance with COLI plan provisions. For purposes of COLI, the Arch
Participant will be deemed to be an Olin Employee.
(d) Post-Retirement Medical and Life Insurance Benefits. Effective
----------------------------------------------------
as of the Distribution Date, Olin shall continue to sponsor the retiree medical
benefit and life insurance plans of Olin. Olin agrees that it will retain all
liability with respect to medical and life insurance benefits provided to Arch
Former Employees who retired or otherwise terminated prior to the Distribution
Date. Effective as of the Distribution Date, Arch shall adopt a
17
medical benefit plan substantially similar to Olin's retiree benefits plan
program. Such plan shall provide credit to Arch Employees and Subsequent Arch
Employees for service with Olin on the same basis as credit for such service was
provided under Olin's plan. Other than possible increases in employee
contributions, Arch agrees that the benefits provided under its retiree medical
benefits program shall not be reduced or terminated prior to the fifth
anniversary of the Distribution Date. Arch hereby agrees to assume, and shall
indemnify and hold Olin harmless from and against, all claims brought against
any member of the Xxxx Group under Olin's retiree medical benefit plans by any
Arch Employee or Subsequent Arch Employee who retires after the Distribution
Date. If an Arch Employee is transferred to Olin or any of its Affiliates by the
Arch Group on or prior to January 31, 2000, Olin shall be responsible for such
individual's retiree medical benefits.
(e) Implementation. Olin agrees to provide Arch or its designated
---------------
representative with such information (in the possession of a member of the Xxxx
Group and not already in the possession of a member of the Arch Group) as may be
reasonably requested by Arch in order to carry out the requirements of this
Section 2.4.
Section 2.5. Options. (a) Arch Long Term Incentive Plan. Arch
-------- ------------------------------
shall take all actions necessary or appropriate to establish on or before the
Distribution Date the Arch Chemicals, Inc. 1999 Long Term Incentive Plan which
shall contain terms that are substantially similar to the terms provided under
the Olin 1991 Long Term Incentive Plan.
(b) Olin Options. Olin and Arch shall take all actions necessary or
-------------
appropriate so that each Olin Option is adjusted and/or replaced as set forth
below.
(1) Certain Employees and Former Employees of the Xxxx Group. This
---------------------------------------------------------
Section 2.5(b)(1) sets forth the treatment in the Distribution of each Olin
Option that is, as of the Distribution Date, outstanding and held by an Olin
Employee employed by (or Olin Former Employee formerly employed by) a member of
the Xxxx Group other than Olin, or a Beneficiary of any such Employee. Each
such Olin Option ("Pre-Adjustment Option") shall be adjusted to constitute an
Olin option (a "New Olin Option") and an Arch SAR. With respect to each New
Olin Option (i) the number of shares of Olin Common Stock subject to such New
Olin Option shall equal the number of shares of Olin Common Stock subject to
18
the Pre-Adjustment Option, and (ii) the per-share exercise price of such New
Olin Option shall equal the per-share exercise price of such Pre-Adjustment
Option, as applicable, multiplied by the Olin Ratio (rounded down to the nearest
whole cent). With respect to each such Arch SAR (i) the number of shares of Arch
Common Stock subject to such Arch SAR shall equal the number of shares of Olin
Common Stock subject to the Pre-Adjustment Option multiplied by the Distribution
Ratio (rounded up to the nearest whole share), and (ii) the per-share base
amount of such Arch SAR shall equal the per-share exercise price of such Pre-
Adjustment Option multiplied by the Arch Ratio (and then rounded down to the
nearest whole cent).
(2) Other Olin Participants and Arch Participants. This Section
----------------------------------------------
2.5(b)(2) sets forth the treatment in the Distribution of each Olin Option that
is, as of the Distribution Date, outstanding and held by an Olin Participant
(other than one described in Section 2.5(b)(1)), or by an Arch Participant. As
of the Distribution Date, each such outstanding Olin Option shall be adjusted to
constitute two options (one a "New Olin Option" and the other an "Arch Option")
as provided in this Section 2.5(b)(2). With respect to each such New Olin
Option, (i) the number of shares of Olin Common Stock subject to such New Olin
Option, shall equal the number of shares of Olin Common Stock subject to the
Pre-Adjustment Option, and (ii) the per-share exercise price of such New Olin
Option shall equal the per-share exercise price of such Pre-Adjustment Option,
as applicable, multiplied by the Olin Ratio (rounded down to the nearest whole
cent). With respect to each such Arch Option (i) the number of shares of Arch
Common Stock subject to such Arch Option shall equal the number of shares of
Olin Common Stock subject to the Pre-Adjustment Option multiplied by the
Distribution Ratio (rounded up to the nearest whole share), and (ii) the per-
share exercise price of such Arch Option shall equal the per-share exercise
price of such Pre-Adjustment Option multiplied by the Arch Ratio (rounded down
to the nearest whole cent).
(c) Terms of Options and Arch SARs. The terms and conditions of each
-------------------------------
New Olin Option, Arch Option and/or Arch SAR adjusted pursuant to this Section
2.5 shall be the same as those of the Olin Option it replaces, except as
otherwise specifically provided in this Section 2.5 and except that (1) in the
case of such options issued under the Olin 1980 Stock Option Plan to individuals
who become Arch
19
Employees, such options shall expire no later than on the earlier of (i) the end
of their original term or (ii) the second anniversary of the Distribution Date,
or (2) in the case of such options issued under the Olin 1988 Stock Option Plan
or the Olin 1996 Stock Option Plan to individuals who become Arch Employees,
such options shall expire no later than at the end of their original term. With
respect to individuals who become Arch Employees, references to employment with
or termination of employment with the Xxxx Group shall be changed to references
to employment with or termination of employment with the Arch Group, and (ii)
other references to the Xxxx Group shall be changed to references to the Arch
Group as appropriate.
(d) Delivery of Shares and Cash. Effective as of the Distribution
----------------------------
Date, New Olin Options and Arch Options held by Arch Employees shall be
transferred to the Arch Chemicals, Inc. 1999 Long Term Incentive Plan. New Olin
Options, Arch Options and Arch SARs held by Olin Employees, Olin Former
Employees, Subsequent Arch Employees and Arch Former Employees shall be retained
by the Olin Incentive Plans. Olin shall be solely responsible for the delivery
of Olin Common Stock upon exercise of New Olin Options in exchange for payment
of the exercise price and Arch shall be solely responsible for the delivery of
Arch Common Stock upon exercise of Arch Options, in each case in exchange for
payment of the applicable exercise price. Olin shall assume and be solely
responsible for all Liabilities with respect to Arch SARs which shall be issued
under the Olin Incentive Plans. Any adjustment to or cash-out of New Olin
Options made by Olin in accordance with the Olin Incentive Plans shall apply to
all outstanding New Olin Options including those transferred to an Arch Plan and
Olin shall be liable for such adjustment or cash-out. Similarly, any adjustment
to or cash-out of Arch Options made by Arch in accordance with the Arch
Chemicals, Inc. 1999 Long Term Incentive Plan shall apply to all outstanding
Arch Options resulting from the Distribution, including those held under
Incentive Plans, and Arch shall be liable for such adjustment or cash-out.
(e) Implementation. Olin and Arch shall each maintain a registration
---------------
statement on Form S-8 to cover all of their respective outstanding options,
regardless of who holds such options. Notwithstanding the foregoing provisions
of this Section 2.5, if either Olin or Arch determines that because of legal,
accounting, tax, and/or regulatory rules or requirements applicable to options,
or
20
restricted stock in any jurisdiction outside the United States, compliance with
any of its obligations under this Section 2.5 with respect to options, or
restricted stock held by or to be issued to any individual employed outside the
United States would be impossible, illegal, impracticable or unreasonably
expensive, it shall so notify the other party, and Arch and Olin shall use their
best efforts to agree to appropriate alternative arrangements.
Section 2.6. Executive and Director Compensation Plans. (a) 1998
----------------------------------------- ----
Incentive Awards. Arch Employees and Former Arch Employees who were
-----------------
participating in the EVA Management Incentive Compensation Plan will be entitled
to receive an annual incentive bonus award with respect to 1998 performance
assuming plan provisions are satisfied.
(b) Other Equity Awards. Olin shall continue to sponsor the Olin
--------------------
1991 Long-Term Incentive Plan for the benefit of Olin Participants and Former
Arch Employees. Immediately prior to the Distribution Date, holders of Olin
Restricted Stock Units (whether an Olin Participant or an Arch Participant)
shall be credited with one Arch Restricted Stock Unit for every two Olin
Restricted Stock Units credited to them under an Olin Plan. Such Arch
Restricted Stock Units shall be subject to substantially the same restrictions
as the Olin Restricted Stock Units except that with respect to Arch Employees,
any requirement for continued employment with the Xxxx Group shall be deemed to
refer to continued employment with the Arch Group. All liability for Olin
Restricted Stock Units and Arch Restricted Stock Units held by Arch Employees
shall be transferred to the Arch Chemicals, Inc. 1999 Long Term Incentive Plan
immediately prior to the Distribution Date and all reserves related to such
units attributable to Arch Employees who are determined to be Arch Employees on
the Distribution Date shall be transferred to Arch. Olin shall take all actions
necessary or appropriate to provide that each individual who is expected to
become an Arch Employee who has "Olin Performance Unit Plan" retention units
shall have the payment of such units accelerated and paid out prior to the
Distribution Date in Olin Common Stock.
(c) Deferred Compensation Plan. Olin will continue to sponsor the
---------------------------
Xxxx Corporation Employee Deferral Plan ("Olin Deferral Plan") for the benefit
of Olin Participants and Arch Former Employees. Arch shall take all actions
necessary or appropriate to establish before the Distribution Date, a Deferred
Compensation Plan which shall
21
contain terms that are substantially similar to the terms contained in the Olin
Deferral Plan. Immediately prior to the Distribution Date, participants in the
Olin Deferral Plan (whether Olin Participants or Arch Participants) who have an
account invested in phantom shares of Olin Common Stock shall be credited with
one phantom share of Arch Common Stock for every two phantom shares of Olin
Common Stock credited to their accounts. All liability for phantom shares of
Arch Common Stock and Olin Common Stock credited to Arch Employees and related
cash accounts for such employees and all related reserves attributable to Arch
Employees who are determined to be Arch Employees on the Distribution Date shall
be transferred to Arch immediately prior to the Distribution Date.
(d) Benefits for Non-Employee Directors. Arch shall take all actions
------------------------------------
necessary or appropriate to establish on or before the Distribution Date, a
stock plan for non-employee directors which shall contain terms that are similar
to the terms contained in the Xxxx Corporation 1997 Stock Plan for Non-Employee
Directors; provided, however, that in lieu of or in addition to the annual
-------- -------
grants of shares of Arch Common Stock to non-employee directors, the board of
directors of Arch may elect to grant options to purchase shares of Arch Common
Stock and/or performance shares. Phantom shares of Olin Common Stock and Arch
Common Stock (after an adjustment which is similar to the Distribution) credited
to Arch directors will be transferred to the Arch stock Plan for non-employee
directors.
(e) Dividend Equivalents. Dividend equivalent units on Olin
---------------------
Restricted Stock Units and phantom shares of Olin Common Stock will be
reinvested in Olin Restricted Stock Units and phantom shares of Olin Common
Stock, respectively. Similarly, dividend equivalent units on Arch Restricted
Stock Units and phantom shares of Common Stock will be reinvested in Arch
Restricted Stock Units and phantom shares of Arch Common Stock, respectively.
Effective as of the Distribution Date, (i) Arch shall assume and be solely
responsible for all Liabilities (whether accrued, contingent or otherwise) with
respect to dividend equivalent units on awards held by Arch Employees, and (ii)
Olin shall assume or retain, as applicable, and be solely responsible for all
Liabilities (whether accrued, contingent or otherwise) with respect to dividend
equivalent units on awards held by Olin Participants or Former Arch Employees.
22
ARTICLE III
Foreign Plans
-------------
Section 3.1. General Principles. This Section 3.1 sets forth certain
-------------------
general principles relating to Foreign Plans; however, exceptions may be made to
those general principles as set forth in Section 3.2. Olin and Arch shall take
all actions necessary or appropriate so that, effective no later than the
Distribution Date, all Foreign Plans have been divided and/or new Foreign Plans
established (to the extent necessary) so that all benefits of Olin Participants
under Foreign Plans (whether accrued or payable before, on or after the
Distribution Date) are provided by Olin Foreign Plans, and all benefits of Arch
Participants under Foreign Plans (whether accrued or payable before, on or after
the Distribution Date) are provided by Arch Foreign Plans. If any Foreign Plan
that is separated into an Olin Foreign Plan and an Arch Foreign Plan in
connection with or in anticipation of the Distribution is funded through a
trust, insurance contract or other funding vehicle, then such funding vehicle
shall be divided between such Olin Foreign Plan and Arch Foreign Plan on an
equitable basis. From and after the Distribution Date: (i) the members of the
Xxxx Group and the Olin Foreign Plans shall assume or retain, as applicable, and
shall be solely responsible for, all Liabilities of the Pre-Distribution Group
arising out of or relating to the Olin Foreign Plans; and (ii) the members of
the Arch Group and the Arch Foreign Plans shall assume or retain, as applicable,
and shall be solely responsible for, all Liabilities arising out of or relating
to the Arch Foreign Plans.
Section 3.2. Exceptions to General Principles. Olin and Arch
---------------------------------
recognize that it is possible that, in certain cases, applicable law may
prohibit the implementation of the general principles set forth in Section 3.1,
or that there may be special circumstances making such implementation
inadvisable or impractical. In all such cases, such general principles shall
not be implemented and Olin and Arch shall use best efforts to develop and
implement an alternative approach, and shall enter into such additional
agreements as may be necessary or appropriate in connection therewith.
23
ARTICLE IV
General Provisions
------------------
Section 4.1. Employment Transfers; Severance Pay. (a) Arch and Xxxx
------------------------------------
shall take all steps necessary and appropriate so that, on or immediately after
the Distribution Date, all individuals who have been designated to be Arch
Employees are employed by a member of the Arch Group, and all individuals who
have been designated to be Olin Employees are employed by a member of the Xxxx
Group.
(b) Arch and Olin agree that, except as specifically provided by law
or otherwise in this Agreement, individuals who, in connection with the
Distribution, cease to be Olin Employees and become Arch Employees shall not be
deemed to have experienced a termination or severance of employment from Olin
and its subsidiaries for purposes of any Olin Plan that provides for the payment
of severance, redundancy, salary continuation or similar benefits.
Section 4.2. Recognition of Olin Employment Service, Etc. The Arch
--------------------------------------------
Plans shall, to the extent permitted by applicable law, recognize service before
the Distribution with the Pre-Distribution Group as service with the Arch Group.
Each Arch Welfare Plan shall, to the extent permitted by applicable law, provide
benefits to Arch Employees without interruption or change solely as a result of
the transition from the corresponding Olin Welfare Plans, and, without limiting
the generality of the foregoing: (a) shall, to the extent applicable, recognize
all amounts applied to deductibles, out-of-pocket maximums and lifetime maximum
benefits with respect to Arch Employees under the corresponding Olin Welfare
Plan for the plan year that includes the Distribution Date and for prior periods
(if applicable); (b) shall, to the extent applicable, not impose any limitations
on coverage of preexisting conditions of Arch Employees except to the extent
such limitations applied to such Arch Employees under the corresponding Olin
Welfare Plan immediately before such Arch Welfare Plan became effective; and (c)
shall not impose any other conditions (such as proof of good health, evidence of
insurability or a requirement of a physical examination) upon the participation
by Arch Employees who were participating in the corresponding Olin Welfare Plan
immediately before such Arch Welfare Plan became effective.
24
Section 4.3. Workers' Compensation. Arch shall be responsible for
----------------------
all workers' compensation claims payable to or on behalf of Arch Participants
and Subsequent Arch Employees whether arising before, on or after the
Distribution Date; provided, however, that with respect to such individuals
-------- -------
receiving or entitled to receive workers' compensation benefits on the
Distribution Date, Olin shall pay or cause to be paid such benefits on and after
the Distribution Date and shall be reimbursed for such payments by Arch to the
extent not covered by Olin's insurance. Accruals for such Liabilities shall be
transferred to Arch.
ARTICLE V
Miscellaneous
-------------
Section 5.1. Guarantee of Subsidiaries' Obligations. Each of the
---------------------------------------
parties hereto shall cause to be performed, and hereby guarantees the
performance and payment of, all actions, agreements, obligations and Liabilities
set forth herein to be performed or paid by any Subsidiary of such party which
is contemplated by the Distribution Agreement to be a Subsidiary of such party
on or after the Distribution Date.
Section 5.2. Disputes. (a) In any case in which Arch or Olin shall
---------
disagree with the determination of an amount which this Agreement requires to be
made by the Enrolled Actuary, each such disagreeing party shall have the right,
within 30 days after receipt of notice of such determination, to engage, at its
own expense, an independent expert to make the determination of such amount. If
the amount determined by such independent experts should differ, such amount
shall be reasonably and equitably determined by another independent expert
selected by agreement between or among the Enrolled Actuary and such independent
experts.
(b) Any other dispute, controversy or claim arising out of or relating
to this Agreement shall be governed by Article V of the Distribution Agreement.
Section 5.3. Sharing of Information. Each of Olin and Arch shall,
-----------------------
and shall cause each of the other members of their respective Groups to, provide
to the other all such information in its possession as the other may reasonably
request to enable it to administer its employee benefit plans and programs, and
to determine the scope of,
25
and fulfill, its obligations under this Agreement. Such information shall, to
the extent reasonably practicable, be provided in the format and at the times
and places requested, but in no event shall the party providing such information
be obligated to incur any direct expense not reimbursed by the party making such
request, nor to make such information available outside its normal business
hours and premises except as the parties otherwise specifically agree. The right
of the parties to receive information hereunder shall, without limiting the
generality of the foregoing, extend to any and all reports, and the data
underlying such reports, prepared by the Enrolled Actuary in making any
determination under this Agreement or by any third party engaged pursuant to
Section 5.2.
Section 5.4. Termination. This Agreement shall be terminated in the
------------
event that the Distribution Agreement is terminated and the Distribution
abandoned prior to the Distribution Date. In the event of such termination,
neither party shall have any liability of any kind to the other party.
Section 5.5. Rights To Amend or Terminate Plans; No Third Party
--------------------------------------------------
Beneficiaries. Except as provided in Section 2.4(d), no provision of this
--------------
Agreement shall be construed (a) to limit the right of Olin, any other member of
the Xxxx Group, Arch or any other member of the Arch Group to amend any Plan or
terminate any Plan, or (b) to create any right or entitlement whatsoever in any
Employee, former Employee or Beneficiary, including a right to continued
employment or to any benefit under a Plan or any other compensation. This
Agreement is solely for the benefit of the parties hereto and their respective
subsidiaries and should not be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
Section 5.6. Complete Agreement. This Agreement and the agreements
-------------------
and other documents referred to herein shall constitute the entire agreement
between the parties hereto with respect to the subject matter hereof and shall
supersede all previous negotiations, commitments and writings with respect to
such subject matter.
Section 5.7. Governing Law. Subject to applicable U.S. federal law,
--------------
this Agreement shall be governed by and construed in accordance with the laws of
the
26
Commonwealth of Virginia applicable to contracts executed therein and to be
performed therein as to all matters, including matters of validity,
construction, effect, performance and remedies.
Section 5.8. Notices. All notices, requests, claims, demands and
--------
other communications hereunder shall be given in accordance with the provisions
of Section 8.08 of the Distribution Agreement.
Section 5.9. Amendment and Modification. This Agreement may be
---------------------------
amended, modified or supplemented only by a written agreement signed by both of
the parties hereto.
Section 5.10. Successors and Assigns. This Agreement and all of the
-----------------------
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their successors and permitted assigns, but neither this Agreement
nor any of the rights, interests and obligations hereunder shall be assigned by
any party hereto without the prior written consent of the other party (which
consent shall not be unreasonably withheld or delayed).
27
SECTION 5.11. Consent to Jurisdiction. Without limiting the
------------------------
provisions of Article V of the Distribution Agreement, each of the parties
irrevocably submits to the exclusive personal jurisdiction and venue of (a) the
Circuit Court of Henrico County, Commonwealth of Virginia, and (b) the United
States District Court for the Eastern District of Virginia (Richmond Division),
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the parties agrees to
commence any action, suit or proceeding relating hereto either in the United
States District Court for the Eastern District of Virginia (Richmond Division)
or if such suit, action or other proceeding may not be brought in such court for
juris dictional reasons, in the Circuit Court of the Henrico County,
Commonwealth of Virginia. Each of the parties further agrees that service of
any process, summons, notice or document by U.S. registered mail to such party's
respective address set forth in the Distribution Agreement shall be effective
service of process for any action, suit or proceeding in Virginia with respect
to any matters to which it has submitted to jurisdiction in this Section 5.11.
Each of the parties irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in (i) the Circuit Court of Henrico
County, Commonwealth of Virginia, or (ii) the United States District Court for
the Eastern District of Virginia (Richmond Division), and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum, and the right to object, with respect
to such action, suit or proceeding, that such court does not have jurisdiction
over such Party.
Section 5.12. Counterparts. This Agreement may be executed in two or
-------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 5.13. Interpretation. The Article and Section headings
---------------
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the parties hereto and shall not in any way affect the
meaning or interpretation of this Agreement.
28
Section 5.14. Legal Enforceability. Any provision of this Agreement
---------------------
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Each party
acknowledges that money damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
Section 5.15. References; Construction. References to any "Article"
-------------------------
or "Section" without more, are to Articles or Sections to or of this Agreement.
Unless otherwise expressly stated, "including", "includes" or "include" shall be
deemed followed by the words "without limitation".
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
XXXX CORPORATION,
by
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President,
General Counsel and
Secretary
ARCH CHEMICALS, INC.,
by
-----------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Vice President
