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Exhibit 2.1
FORM OF
AGREEMENT AND PLAN OF DISTRIBUTION
BY AND BETWEEN
XXXXXX CORPORATION
AND
XXXXXX WORLDWIDE, INC.
DATED AS OF o, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS
SECTION 1.1. General..................................................................................2
SECTION 1.2. Reference; Interpretation...............................................................14
ARTICLE II.
DISTRIBUTION AND OTHER TRANSACTIONS;
CERTAIN COVENANTS
SECTION 2.1 The Distribution and Other Transactions.................................................15
SECTION 2.2 Cash Payment and Closing Payment........................................................19
SECTION 2.3 Post-Distribution Adjustment............................................................19
SECTION 2.4 Intercompany Receivables................................................................21
SECTION 2.5 Assumption and Satisfaction of Liabilities..............................................21
SECTION 2.6 Resignations............................................................................21
SECTION 2.7 Further Assurances......................................................................22
SECTION 2.8 Limited Representations or Warranties...................................................22
SECTION 2.9 Removal of Certain Guarantees; Releases from Liabilities................................22
SECTION 2.10 Witness Services........................................................................23
SECTION 2.11 Transfers Not Effected Prior to the Distribution;
Transfers Deemed Effective as of the Distribution Date..................................24
SECTION 2.12 Conveyancing and Assumption Instruments.................................................24
SECTION 2.13 Ancillary Agreements....................................................................24
SECTION 2.14 Corporate Names.........................................................................25
SECTION 2.15 Non-Solicitation........................................................................25
ARTICLE III.
INDEMNIFICATION
SECTION 3.1 Indemnification by Xxxxxx...............................................................26
SECTION 3.2 Indemnification by Xxxxxx...............................................................26
SECTION 3.3 Procedures for Indemnification..........................................................26
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SECTION 3.4 Indemnification Payments................................................................28
ARTICLE IV.
ACCESS TO INFORMATION
SECTION 4.1 Provision of Corporate Records..........................................................28
SECTION 4.2 Access to Information...................................................................29
SECTION 4.3 Reimbursement; Other Matters............................................................29
SECTION 4.4 Confidentiality.........................................................................29
SECTION 4.5 Privileged Matters......................................................................30
SECTION 4.6 Ownership of Information................................................................32
SECTION 4.7 Retention of Records....................................................................32
SECTION 4.8 Limitation of Liability; Release........................................................32
SECTION 4.9 Other Agreements Providing for Exchange of Information..................................33
ARTICLE V.
DISPUTE RESOLUTION
SECTION 5.1 Negotiation.............................................................................33
SECTION 5.2 Mediation...............................................................................33
SECTION 5.3 Arbitration.............................................................................34
SECTION 5.4 Continuity of Service and Performance...................................................34
SECTION 5.5 Other Remedies..........................................................................35
ARTICLE VI.
INSURANCE
SECTION 6.1 Policies and Rights Included Within Assets..............................................35
SECTION 6.2 Post-Distribution Date Claims...........................................................35
SECTION 6.3 Administration; Other Matters...........................................................36
SECTION 6.4 Agreement for Waiver of Conflict and Shared Defense.....................................38
SECTION 6.5 Cooperation.............................................................................38
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ARTICLE VII.
MISCELLANEOUS
SECTION 7.1 Complete Agreement; Construction........................................................39
SECTION 7.2 Ancillary Agreements....................................................................39
SECTION 7.3 Counterparts............................................................................39
SECTION 7.4 Survival of Agreements..................................................................39
SECTION 7.5 Distribution Expenses...................................................................39
SECTION 7.6 Notices.................................................................................40
SECTION 7.7 Waivers.................................................................................40
SECTION 7.8 Amendments..............................................................................40
SECTION 7.9 Assignment..............................................................................41
SECTION 7.10 Successors and Assigns..................................................................41
SECTION 7.11 Termination.............................................................................41
SECTION 7.12 Subsidiaries............................................................................41
SECTION 7.13 Third Party Beneficiaries...............................................................41
SECTION 7.14 Title and Headings......................................................................41
SECTION 7.15 Exhibits and Schedules..................................................................41
SECTION 7.16 GOVERNING LAW...........................................................................42
SECTION 7.17 Consent to Jurisdiction.................................................................42
SECTION 7.18 Severability............................................................................42
SECTION 7.19 Consolidation, Merger, Etc. Involving Xxxxxx............................................42
SECTION 7.20 Consolidation, Merger, Etc. Involving Xxxxxx............................................43
Exhibit A Corporate Restructuring Transactions
Exhibit B Employee Benefits and Compensation Allocation Agreement
Exhibit C Intellectual Property Agreement
Exhibit D [Intentionally Left Blank]
Exhibit E Xxxxxx Subsidiaries
Exhibit F Registration Rights Agreement
Exhibit G Tax Disaffiliation Agreement
Exhibit H Transition Services Agreement
Exhibit I Xxxxxx Information Statement Indemnification Statements
Exhibit J List of Contracts Between Xxxxxx and Xxxxxx
Exhibit K Ancillary Workers Compensation Agreement
Schedule 1.1(a) Litigation
Schedule 2.2(b)(i) Payment Items
Schedule 2.2(b)(ii) Credit Items
Schedule 2.4(a) Deduction Items
Schedule 2.9(a) Guarantees
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AGREEMENT AND PLAN OF DISTRIBUTION
This AGREEMENT AND PLAN OF DISTRIBUTION (this "Agreement"), is
dated as of o, 1999, by and between Xxxxxx Corporation, a Delaware corporation
("Xxxxxx"), and Xxxxxx Worldwide, Inc., a Delaware corporation and, prior to the
Distribution (as defined herein), a wholly owned subsidiary of Xxxxxx
("Xxxxxx").
WHEREAS, Xxxxxx, acting through the Xxxxxx Group (as defined
herein), currently conducts a number of businesses, including providing office
products and document management solutions, and in the past has conducted a
number of other businesses through the Xxxxxx Group or its predecessors which
have been discontinued, sold or transferred (all such businesses collectively,
the "Xxxxxx Business");
WHEREAS, Xxxxxx has determined to take certain steps to
transfer certain Assets (as defined herein) to Xxxxxx and have Xxxxxx assume
certain Liabilities (as defined herein) of Xxxxxx and Xxxxxx has determined to
take certain steps to transfer certain Assets to Xxxxxx and have Xxxxxx assume
certain Liabilities of Xxxxxx;
WHEREAS, the Board of Directors of Xxxxxx has authorized the
distribution to the holders of the issued and outstanding shares of common
stock, par value $1.00 per share, of Xxxxxx (the "Xxxxxx Common Stock") as of
the record date of approximately 90% of the issued and outstanding shares of
common stock, par value $0.01 per share, of Xxxxxx (the "Xxxxxx Common Stock"),
together with the associated preferred stock purchase rights (each share of such
stock, together with the associated preferred stock purchase right, a "Xxxxxx
Share"), on the basis of one Xxxxxx Share for each share of Xxxxxx Common Stock
(the "Distribution"); and
WHEREAS, the parties hereto have determined to set forth the
principal corporate and other transactions required to effect the Distribution
and to set forth other agreements that will govern certain other matters prior
to and following the Distribution.
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement, the parties hereby agree as follows:
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ARTICLE I.
DEFINITIONS
SECTION 1.1. General. Unless otherwise defined herein or
unless the context otherwise requires, as used in this Agreement, the following
terms shall have the following meanings:
"Action" shall mean any demand, action, suit, arbitration,
inquiry, proceeding or investigation by or before any Governmental
Authority or any arbitration or mediation tribunal.
"Affiliate" shall mean, when used with respect to any
specified Person, a Person that directly or indirectly controls, is
controlled by, or is under common control with such specified Person;
provided, however, that for purposes of this Agreement, any Person who
was a member of both Groups prior to the Distribution shall be deemed
to be an Affiliate only of the Group of which such Person is a member
following the Distribution. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether
through the ownership of voting securities or other interests, by
contract or otherwise. Any contrary provision of this Agreement
notwithstanding, neither Xxxxxx nor any of its Subsidiaries shall be
deemed to be an Affiliate of Xxxxxx.
"Agent" shall have the meaning set forth in Section 2.1(b) of
this Agreement.
"Agreement" shall have mean this Agreement.
"Agreement Disputes" shall have the meaning set forth in
Section 5.1 of this Agreement.
"Ancillary Agreements" shall mean all of the written
agreements, instruments, understandings, assignments or other
arrangements (other than this Agreement) entered into by the parties
hereto or any other member of their respective Groups in connection
with the transactions contemplated hereby, including the Conveyancing
and Assumption Instruments, the Employee Benefits Compensation and
Allocation Agreement, the Intellectual Property Agreement, the
Registration Rights Agreement, the Tax Disaffiliation Agreement, the
Transition Services Agreement, the Ancillary Workers Compensation
Agreement and the Subleases.
"Ancillary Workers Compensation Agreement" shall mean the
Ancillary Workers Compensation Agreement by and between Xxxxxx and
Xxxxxx, which agreement shall be entered into prior to the Distribution
Date in the form attached hereto as Exhibit K.
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"Applicable Rate" shall mean the rate of interest per annum
announced from time to time by Citibank, N.A., as its prime lending
rate.
"Assets" shall mean assets, properties and rights, wherever
located (including in the possession of vendors or other third parties
or elsewhere), whether real, personal or mixed, tangible, intangible or
contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or
financial statements of any Person, including the following:
(i) all accounting and other books, records and files
whether in paper, microfilm, microfiche, computer tape or
disc, magnetic tape or any other form;
(ii) all apparatus, computers and other electronic
data processing equipment, fixtures, machinery, equipment,
furniture, office equipment, automobiles, trucks, aircraft and
other transportation equipment, special and general tools,
test devices, prototypes and models and other tangible
personal property;
(iii) all inventories of materials, parts, raw
materials, supplies, work-in-process and finished goods and
products;
(iv) all interests in real property of whatever
nature, including easements, whether as owner, mortgagee or
holder of a security interest in real property, lessor,
sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other
equity interests of any Subsidiary or any other Person, all
bonds, notes, debentures or other securities issued by any
Subsidiary or any other Person, all loans, advances or other
extensions of credit or capital contributions to any
Subsidiary or any other Person and all other investments in
securities of any Person;
(vi) all license agreements, leases of personal
property, open purchase orders for raw materials, supplies,
parts or services, unfilled orders for the manufacture and
sale of products and other contracts, agreements or
commitments (collectively, "Contracts");
(vii) all deposits, letters of credit and performance
and surety bonds;
(viii) all written technical information, data,
specifications, research and development information,
engineering drawings, operating and maintenance manuals, and
materials and analyses prepared by consultants and other Third
Parties;
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(ix) all domestic and foreign patents, copyrights,
trade names, trademarks, service marks and registrations and
applications for any of the foregoing, mask works, trade
secrets, inventions, data bases, other proprietary information
and licenses from Third Parties granting the right to use any
of the foregoing;
(x) all computer applications, programs and other
software, including operating software, network software,
firmware, middleware, design software, design tools, systems
documentation and instructions;
(xi) all cost information, sales and pricing data,
customer prospect lists, supplier records, customer and
supplier lists, customer and vendor data, correspondence and
lists, product literature, artwork, design, development and
manufacturing files, vendor and customer drawings,
formulations and specifications, quality records and reports
and other books, records, studies, surveys, reports, plans and
documents;
(xii) all prepaid expenses, trade accounts and other
accounts and notes receivable;
(xiii) all rights under contracts or agreements, all
claims or rights against any Person arising from the ownership
of any asset, all rights in connection with any bids or offers
and all claims, choses in action or similar rights, whether
accrued or contingent;
(xiv) all rights under insurance policies and all
rights in the nature of insurance, indemnification or
contribution;
(xv) all licenses, permits, approvals and
authorizations which have been issued by any Governmental
Authority;
(xvi) cash or cash equivalents, bank accounts, lock
boxes and other deposit arrangements; and
(xvii) interest rate, currency, commodity or other
swap, collar, cap or other hedging or similar agreements or
arrangements.
"Assignee" shall have the meaning set forth in Section 2.1(f)
of this Agreement.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which commercial banking institutions located in The
City of New York are authorized or obligated by law or executive order
to close.
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"Calculation" shall have the meaning set forth in Section
2.3(a) of this Agreement.
"Cash Payment" shall have the meaning set forth in Section
2.2(a) of this Agreement.
"Claims Administration" shall mean the processing of claims
made under the Xxxxxx Shared Policies, including the reporting of
claims to the insurance carriers, management and defense of claims and
providing for appropriate releases upon settlement of claims.
"Closing Payment" shall have the meaning set forth in
Section 2.2(b) of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the Treasury regulations promulgated thereunder, including
any successor legislation.
"Commission" shall mean the Securities and Exchange
Commission.
"Contracts" shall have the meaning set forth in the definition
of Assets.
"Conveyancing and Assumption Instruments" shall mean,
collectively, the various agreements, instruments and other documents
to be or heretofore entered into to effect the Corporate Restructuring
Transactions or otherwise to effect the transfer of Assets and the
assumption of Liabilities in the manner contemplated by this Agreement,
the Ancillary Agreements and the Corporate Restructuring Transactions.
"Corporate Restructuring Transactions" shall mean,
collectively, (a) each of the mergers, transfers, conveyances,
contributions, assignments, dividends, assumptions, redemptions,
purchases and other transactions described and set forth on Exhibit A
attached hereto, and (b) such other mergers, transfers, conveyances,
contributions, assignments, dividends, assumptions, redemptions,
purchases and other transactions that may be appropriate or required to
be accomplished, effected or consummated by Xxxxxx or Xxxxxx or any of
their respective Subsidiaries and Affiliates so that: (i) the Xxxxxx
Assets, Xxxxxx Liabilities and Xxxxxx Business shall be owned, directly
or indirectly, by Xxxxxx after giving effect to the Distribution; and
(ii) the Xxxxxx Assets, Xxxxxx Liabilities and Xxxxxx Business shall be
owned, directly or indirectly, by Xxxxxx after giving effect to the
Distribution.
"Credit Items" shall have the meaning set forth in Section
2.2(b) of this Agreement.
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"Deduction Items" shall have the meaning set forth in Section
2.4(a) of this Agreement.
"Distribution" shall have the meaning set forth in the
recitals to this Agreement.
"Distribution Date" shall mean such date as may be determined
by the Board of Directors of Xxxxxx, or such committee of such Board of
Directors as shall be designated by the Board of Directors of Xxxxxx,
as the date as of which the Distribution shall be effected.
"Distribution Record Date" shall mean such date as may be
determined by the Board of Directors of Xxxxxx, or such committee of
such Board of Directors as shall be designated by the Board of
Directors of Xxxxxx, as the record date for the Distribution.
"Effective Time" shall mean 11:59 p.m., New York City time, on
the Distribution Date.
"Employee Benefits Compensation and Allocation Agreement"
shall mean the Employee Benefits Compensation and Allocation Agreement
by and between Xxxxxx and Xxxxxx, which agreement shall be entered into
prior to or on the Distribution Date in the form attached hereto as
Exhibit B.
"Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
principles of common law, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other
governmental restrictions (including without limitation the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. 9601, et seq.), whether now or hereafter in existence,
relating to the environment, natural resources, human health or safety,
endangered or threatened species of fish, wildlife and plants, or to
emissions, discharges or releases of pollutants, contaminant, petroleum
or petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment (including without limitation
indoor or outdoor air, surface water, groundwater and surface or
subsurface soils), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or
wastes or the investigation, cleanup or other remediation thereof.
"Ernst & Young" shall have the meaning set forth in Section
2.3(a) of this Agreement.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, together with the rules and regulations promulgated
thereunder.
"Governmental Authority" shall mean any federal, state, local,
foreign or international court, government, department, commission,
board, bureau, agency, official, the NYSE or other regulatory,
administrative or governmental authority.
"Group" shall mean with respect to Xxxxxx, the Xxxxxx Group
and, with respect to Xxxxxx, the Xxxxxx Group.
"Xxxxxx" shall have the meaning set forth in the preamble to
this Agreement.
"Xxxxxx Accounts Payable" shall mean all of the accounts
payable arising from or out of the provision of goods or services to
any member of the Xxxxxx Group by any member of the Xxxxxx Group under
the contracts or agreements set forth in Exhibit J.
"Xxxxxx Assets" shall mean, collectively, all the rights and
Assets owned or held by Xxxxxx or any Xxxxxx Subsidiary after giving
effect to the Corporate Restructuring Transactions, except the Xxxxxx
Assets.
"Xxxxxx Business" shall mean each and every business conducted
at any time by Xxxxxx or any subsidiary controlled by Xxxxxx, except
the Xxxxxx Business.
"Xxxxxx Common Stock" shall have the meaning set forth in the
recitals to this Agreement.
"Xxxxxx Group" shall mean Xxxxxx and each Person (other than
any member of the Xxxxxx Group) that is a Xxxxxx Subsidiary.
"Xxxxxx Indemnitee" shall mean:
(i) Xxxxxx and each Affiliate thereof after giving
effect to the Corporate Restructuring Transactions and the
Distribution; and
(ii) each of the respective past, present and future
directors, officers, members, employees and agents of any of
the entities described in the immediately preceding clause (i)
and each of the heirs, executors, successors and assigns of
any of such directors, officers, members, employees and
agents, except in the case of clauses (i) and (ii), the Xxxxxx
Indemnitees.
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"Xxxxxx Liabilities" shall mean collectively, all obligations
and Liabilities of Xxxxxx or any Xxxxxx Subsidiary after giving effect
to the Corporate Restructuring Transactions, except the Xxxxxx
Liabilities.
"Xxxxxx Policies" shall mean all Policies, current or past,
that are owned or maintained by or on behalf of Xxxxxx or any Xxxxxx
Subsidiary that do not relate to the Xxxxxx Business.
"Xxxxxx Shared Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of Xxxxxx or any
Xxxxxx Subsidiary which provide coverage for the Xxxxxx Business, other
than Xxxxxx Policies.
"Xxxxxx Subsidiaries" shall mean all of the Subsidiaries of
Xxxxxx other than Xxxxxx and the Xxxxxx Subsidiaries.
"Indemnifiable Losses" shall mean any and all losses,
liabilities, claims, damages, demands, costs or expenses (including
reasonable attorneys' fees and any and all out-of-pocket expenses)
reasonably incurred in investigating, preparing for or defending
against any Actions or potential Actions or in settling any Action or
potential Action or in satisfying any judgment, fine or penalty
rendered in or resulting from any Action.
"Indemnifying Party" shall have the meaning set forth in
Section 3.3 of this Agreement.
"Indemnitee" shall have the meaning set forth in Section 3.3
of this Agreement.
"Information Statement" shall mean the Information Statement
filed with the Commission as part of the Registration Statement and
mailed to the holders of shares of Xxxxxx Common Stock in connection
with the Distribution, including any amendments or supplements thereto.
"Insurance Administration" shall mean, with respect to each
Xxxxxx Shared Policy, the accounting for premiums,
retrospectively-rated premiums, defense costs, indemnity payments,
deductibles and retentions, as appropriate, under the terms and
conditions of each of the Xxxxxx Shared Policies; and the reporting to
excess insurance carriers of any losses or claims which may cause the
per-occurrence, per claim or aggregate limits of any Xxxxxx Shared
Policy to be exceeded, and the distribution of Insurance Proceeds as
contemplated by this Agreement.
"Insurance Proceeds" shall mean those monies (i) received by
an insured from an insurance carrier or (ii) paid by an insurance
carrier on behalf of an insured.
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"Insured Claims" shall mean those Liabilities that,
individually or in the aggregate, are covered within the terms and
conditions of any of the Xxxxxx Shared Policies, whether or not subject
to deductibles, co-insurance, uncollectibility or retrospectively-rated
premium adjustments.
"Intellectual Property Agreement" shall mean the Intellectual
Property Agreement by and between Xxxxxx and Xxxxxx, which Agreement
shall be entered into prior to or on the Distribution Date in the form
attached hereto as Exhibit C.
"Intercompany Receivables" shall have the meaning set forth in
Section 2.4(b) of this Agreement.
"IRS" shall mean the Internal Revenue Service.
"Xxxxxx Assets" shall mean collectively, all the rights and
Assets that are owned by Lanier or any Xxxxxx Subsidiaries as of the
close of business on the Distribution Date and after giving effect to
the Corporate Restructuring Transactions, including:
(i) the capital stock of the Xxxxxx Subsidiaries;
(ii) all of the Assets reflected on the Xxxxxx Pro
Forma Balance Sheet or the accounting records supporting such
balance sheet that are to be owned by Xxxxxx or any of the
Xxxxxx Subsidiaries as of the close of business on the
Distribution Date;
(iii) all of the Assets expressly allocated to Xxxxxx
or any of the Xxxxxx Subsidiaries under this Agreement or any
of the Ancillary Agreements; and
(iv) any other Asset acquired by Xxxxxx or any of the
Xxxxxx Subsidiaries from the date of the Xxxxxx Pro Forma
Balance Sheet to the close of business on the Distribution
Date that is owned by Xxxxxx, any of the Xxxxxx Subsidiaries,
Xxxxxx or any of the Xxxxxx Subsidiaries as of the close of
business on the Distribution Date and that is of a nature or
type that would have resulted in such Asset being included as
an Asset on the Xxxxxx Pro Forma Balance Sheet had it been
acquired on or prior to the date of the Xxxxxx Pro Forma
Balance Sheet, determined on a basis consistent with the
determination of the Assets included on the Xxxxxx Pro Forma
Balance Sheet. No Asset shall be deemed a Xxxxxx Asset solely
as a result of this clause (iv) unless a claim with respect
thereto is made by Lanier on or prior to the first anniversary
of the Distribution Date. As a clarification, no asset or
portion thereof held by Xxxxxx in any "rabbi trust" shall be
deemed to be a Xxxxxx Asset.
"Xxxxxx Business" shall have the meaning set forth in the
recitals to this Agreement.
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"Xxxxxx Common Stock" shall have the meaning set forth in the
recitals to this Agreement.
"Xxxxxx Group" shall mean Xxxxxx, the Xxxxxx Subsidiaries and
the corporations, partnerships and other entities which are
contemplated to remain or become a Subsidiary of Xxxxxx in connection
with the Corporate Restructuring Transactions and the Distribution.
"Xxxxxx Indemnitees" shall mean:
(i) Xxxxxx and each Affiliate thereof after giving
effect to the Corporate Restructuring Transactions and the
Distribution; and
(ii) each of the respective past, present and future
directors, officers, members, employees and agents of any of
the entities described in the immediately preceding clause (i)
and each of the heirs, executors, successors and assigns of
any of such directors, officers, members, employees and
agents.
"Xxxxxx Liabilities" shall mean:
(i) any and all Liabilities that are expressly
contemplated by this Agreement or any Ancillary Agreement (or
the Schedules hereto or thereto) as Liabilities to be assumed
by Lanier or any member of the Xxxxxx Group, and all
agreements, obligations and Liabilities of any member of the
Xxxxxx Group under this Agreement or any of the Ancillary
Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities which are specifically covered by
the Tax Disaffiliation Agreement and the Employee Benefits
Compensation and Allocation Agreement, respectively),
primarily relating to, arising out of or resulting from:
(A) the operation of the Xxxxxx Business
(including any discontinued business or any business
which has been sold or transferred), as conducted at
any time prior to, on or after the Distribution Date
(including any Liability relating to, arising out of
or resulting from any act or failure to act by any
director, officer, employee, agent or representative
(whether or not such act or failure to act is or was
within such Person's authority));
(B) the operation of any business conducted
by Lanier or any Lanier Subsidiary at any time after
the Distribution Date (including any Liability
relating to, arising out of or resulting from any act
or failure to act by any director, officer, employee,
agent or representative (whether or not such act or
failure to act is or was within such Person's
authority)); or
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(C) any Xxxxxx Assets; whether arising
before, on or after the Distribution Date; or
(iii) all Liabilities reflected as liabilities or
obligations on the Xxxxxx Pro Forma Balance Sheet or the
accounting records supporting such balance sheet, and all
Liabilities arising or assumed after the date of such balance
sheet which, had they arisen or been assumed on or before such
date and been retained as of such date, would have been
reflected on such balance sheet, subject to any discharge of
such Liabilities subsequent to the date of the Xxxxxx Pro
Forma Balance Sheet.
Notwithstanding the foregoing, the Xxxxxx Liabilities shall
not include: (y) any Liabilities that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the Schedules hereto or
thereto) as Liabilities to be retained or assumed by Xxxxxx or any
member of the Xxxxxx Group; or (z) all agreements and obligations of
any member of the Xxxxxx Group under this Agreement or any of the
Ancillary Agreements. Any contrary provision of this Agreement
notwithstanding, any Liabilities or Losses in respect of any litigation
or similar proceeding relating to the Xxxxxx Business, including
without limitation the matters set forth on Schedule 1.1, shall
constitute Xxxxxx Liabilities.
"Xxxxxx Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of Xxxxxx or any Xxxxxx
Subsidiary, which relate specifically to the Xxxxxx Business but do not
relate to the Xxxxxx Business, and which Policies are either maintained
by Lanier or a member of the Xxxxxx Group or assignable to Lanier or a
member of the Xxxxxx Group.
"Xxxxxx Pro Forma Balance Sheet" shall mean the combined pro
forma balance sheet of the Xxxxxx Group, including the notes thereto,
as of July 2, 1999 included in the Information Statement at the time at
which the Registration Statement is declared effective.
"Xxxxxx Share" shall have the meaning set forth in the
recitals to this Agreement.
"Xxxxxx Subsidiaries" shall mean all of the Subsidiaries
listed on Exhibit E.
"Law" shall mean all laws, statutes and ordinances and all
regulations, rules and other pronouncements of Governmental Authorities
having the effect of law of the United States, any foreign country, or
any domestic or foreign state, province, commonwealth, city, country,
municipality, territory, protectorate, possession or similar
instrumentality, or any Governmental Authority thereof.
"Liabilities" shall mean any and all debts, liabilities,
obligations, responsibilities, response actions, losses, damages
(whether compensatory, punitive or treble), fines, penalties
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and sanctions, absolute or contingent, matured or unmatured, liquidated
or unliquidated, foreseen or unforeseen, joint, several or individual,
asserted or unasserted, accrued or unaccrued, known or unknown,
whenever arising, including without limitation those arising under or
in connection with any Law (including any Environmental Law), Action,
threatened Action, order or consent decree of any Governmental
Authority or any award of any arbitration tribunal, and those arising
under any contract, guarantee, commitment or undertaking, whether
sought to be imposed by a Governmental Authority, private party, or
party to this Agreement, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, or
otherwise, and including any costs, expenses, interest, attorneys'
fees, disbursement and expense of counsel, expert and consulting fees
and costs related thereto or to the investigation or defense thereof.
"Losses" shall mean all losses, liabilities, damages, claims,
demands, judgments or settlements of any nature or kind, known or
unknown, fixed, accrued, absolute or contingent, liquidated or
unliquidated, including all reasonable costs and expenses (legal,
accounting or otherwise as such costs are incurred) relating thereto,
suffered by an Indemnitee.
"Notices" shall have the meaning set forth in Section 7.6 of
this Agreement.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Payment Items" shall have the meaning set forth in Section
2.2(b) of this Agreement.
"Person" shall mean any natural person, corporation, business
trust, limited liability company, joint venture, association, company,
partnership or government, or any agency or political subdivision
thereof.
"Policies" shall mean insurance policies and insurance
contracts of any kind (other than life and benefits policies or
contracts), including primary, excess and umbrella policies, master
comprehensive general liability policies, director and officer
liability, fiduciary liability, automobile, aircraft, property and
casualty, workers' compensation and employee dishonesty insurance
policies, bonds and self-insurance and captive insurance company
arrangements, together with the rights, benefits and privileges
thereunder.
"Post-Distribution Adjustment" shall have the meaning set
forth in Section 2.3(a) of this Agreement.
"Records" shall have the meaning set forth in Section 4.1 of
this Agreement.
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"Registration Rights Agreement" shall mean the Registration
Rights Agreement by and between Xxxxxx and Xxxxxx, which agreement
shall be entered into prior to or on the Distribution Date in the form
attached hereto as Exhibit F.
"Registration Statement" shall mean the registration statement
on Form 10 to effect the registration of the Xxxxxx Common Stock
pursuant to the Exchange Act.
"Representative" shall mean, with respect to any Person, any
of such Person's directors, officers, employees, agents, consultants,
advisors, accountants, attorneys and representatives.
"Resolution Period" shall have the meaning set forth in
Section 2.3(a) of this Agreement.
"Retained Shares" shall have the meaning set forth in Section
2.1(b) of this Agreement.
"Rules" shall have the meaning set forth in Section 5.3 of
this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended, together with the rules and regulations promulgated
thereunder.
"Subleases" shall mean the subleases and leases by and between
members of the Xxxxxx Group and members of the Xxxxxx Group, which
subleases and leases shall be entered into prior to the Distribution
Date in such form as is agreed to by Xxxxxx and Xxxxxx.
"Subsidiary" shall mean with respect to any specified Person,
any corporation or other legal entity of which such Person or any of
its Subsidiaries controls or owns, directly or indirectly, more than
50% of the stock or other equity interest entitled to vote on the
election of members to the board of directors or similar governing
body.
"tax" shall have the meaning set forth in the Tax
Disaffiliation Agreement.
"Tax Disaffiliation Agreement" shall mean the Tax
Disaffiliation Agreement by and between Xxxxxx and Xxxxxx, which
agreement shall be entered into prior to or on the Distribution Date in
the form attached hereto as Exhibit G.
"Third Party" shall mean a Person who is not a party hereto or
a Subsidiary thereof.
"Third Party Claim" shall have the meaning set forth in
Section 3.3 of this Agreement.
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"Transition Services Agreement" shall mean the Transition
Services Agreement by and between Xxxxxx and Xxxxxx, which agreement
shall be entered into prior to or on the Distribution Date in the form
attached hereto as Exhibit H.
"Unresolved Changes" shall have the meaning set forth in
Section 2.3(a) of this Agreement.
SECTION 1.2. Reference; Interpretation. References in this
Agreement to any gender include references to all genders, and references to the
singular include references to the plural and vice versa. The words "include",
"includes" and "including" when used in this Agreement shall be deemed to be
followed by the phrase "without limitation." Unless the context otherwise
requires, references in this Agreement to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement. Unless the context otherwise requires, the
words "hereof", "hereby" and "herein" and words of similar meaning when used in
this Agreement refer to this Agreement in its entirety and not to any particular
Article, Section or provision of this Agreement. Neither this Agreement nor any
Ancillary Agreement shall be construed against either party as the principal
draftsperson hereof or thereof.
ARTICLE II.
DISTRIBUTION AND OTHER TRANSACTIONS;
CERTAIN COVENANTS
SECTION 2.1. The Distribution and Other Transactions. (a)
Certain Transactions. On or prior to the Distribution Date:
(i) Xxxxxx shall, on behalf of the Xxxxxx Group,
transfer or cause to be transferred to Xxxxxx or another member of the
Xxxxxx Group by means of the Corporate Restructuring Transactions,
effective prior to or as of the Effective Time, all of Xxxxxx' and the
Xxxxxx Subsidiaries' right, title and interest in the Xxxxxx Assets.
(ii) Xxxxxx shall, on behalf of the Xxxxxx Group,
transfer or cause to be transferred to Xxxxxx or another member of the
Xxxxxx Group by means of the Corporate Restructuring Transactions,
effective prior to or as of the Effective Time, all of Xxxxxx'x and the
Xxxxxx Subsidiaries' right, title and interest in the Xxxxxx Assets.
(iii) To the extent not indicated by the Corporate
Restructuring Transactions or otherwise agreed by the parties hereto,
Xxxxxx shall be entitled to designate the entity within each party's
respective Group to which any Assets are to be transferred pursuant to
this Section 2.1(a) upon the approval of Xxxxxx, which approval shall
not be unreasonably withheld, delayed or conditioned.
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(b) Issuance to Xxxxxx. (i) On or prior to the Distribution
Date, Xxxxxx shall issue and deliver to Xxxxxx a certificate or certificates
registered in the name of Xxxxxx required to effect the transactions set forth
on Exhibit A. Each Xxxxxx Share delivered by Xxxxxx to Xxxxxx shall be validly
issued, fully paid and nonassessable and free of any preemptive (or similar)
rights. Xxxxxx hereby represents and warrants that on the Distribution Date and
prior to the Effective Time, Xxxxxx will own all of the outstanding Xxxxxx
Shares.
(ii) Xxxxxx shall deliver to Xxxxxx' stock transfer
agent (the "Agent") the share certificates representing the Xxxxxx
Shares issued to Xxxxxx by Lanier pursuant to Section 2.1(b)(i) which
are to be issued in the Distribution, endorsed by Xxxxxx in blank, for
the benefit of the holders of Xxxxxx Common Stock, and Xxxxxx shall
instruct the Agent to distribute, on or as soon as practicable
following the Distribution Date, such Common Stock to holders of record
of shares of Xxxxxx Common Stock on the Distribution Record Date as
further contemplated by the Information Statement and hereby. Xxxxxx
shall provide any share certificates that the Agent shall require in
order to effect the Distribution.
(iii) The Xxxxxx Shares issued in the Distribution
will be distributed only pursuant to a book entry system. Xxxxxx shall
instruct the Agent to deliver the Xxxxxx Shares previously delivered to
the Agent to a depositary and to mail to each holder of record of
Xxxxxx Common Stock on the Distribution Record Date, a statement of the
whole Xxxxxx Shares credited to such holder's account. If following the
Distribution a holder of Xxxxxx Common Stock requests physical
certificates instead of participating in the book entry system, the
Agent will issue certificates for such shares, but only for whole
numbers of Xxxxxx Shares. Cash will be given to holders of fractional
shares of Xxxxxx Common Stock on the Distribution Date in lieu of any
fractional Xxxxxx Shares. The Agent will aggregate all fractional
Xxxxxx Shares into whole Xxxxxx Shares and sell the whole Xxxxxx Shares
obtained thereby in the open market at then prevailing prices as soon
as practicable after the Distribution Date on behalf of holders who
would otherwise be entitled to receive such fractional share interests
and will distribute to each such holder such holder's ratable share of
the proceeds of such sale, net of brokerage commission incurred in such
sales, as soon as practicable after the Distribution Date.
(iv) The shares to be retained by Xxxxxx (the
"Retained Shares") will initially be held by Xxxxxx or one of its
Affiliates pursuant to the book entry system. Xxxxxx shall instruct the
Agent to deliver the Retained Shares to a depositary and to mail to
Xxxxxx a statement of the shares of Xxxxxx Common Stock credited to
Xxxxxx' account.
(c) Charter; Bylaws; Rights Plan. On or prior to the
Distribution Date, Xxxxxx and Xxxxxx shall have taken all necessary actions to
provide for the adoption of the form of Restated Certificate of Incorporation
and Bylaws and the execution and delivery of a Stockholder Protection Rights
Agreement, between Xxxxxx and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent,
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in substantially the form filed by Xxxxxx with the Commission as exhibits to the
Registration Statement.
(d) Directors. On or prior to the Distribution Date, Xxxxxx
and Xxxxxx shall have taken all necessary action to cause the Board of Directors
of Xxxxxx to consist of the individuals identified in the Information Statement
as directors of Xxxxxx.
(e) Certain Licenses and Permits. Without limiting the
generality of the obligations set forth in Section 2.1(a), on or prior to the
Distribution Date or as soon as reasonably practicable thereafter:
(i) Xxxxxx shall use its commercially reasonable best
efforts to transfer or cause to be transferred all transferable
licenses, permits and authorizations issued by any Governmental
Authority which relate solely to the Xxxxxx Business but which are held
in the name of any member of the Xxxxxx Group, or in the name of any
employee, officer, director, stockholder or agent of any such member,
or otherwise, on behalf of a member of the Xxxxxx Group to the
appropriate member of the Xxxxxx Group; and
(ii) Xxxxxx shall use its commercially reasonable
best efforts to transfer or cause to be transferred all transferable
licenses, permits and authorizations issued by Governmental Authorities
which relate primarily to the Xxxxxx Business but which are held in the
name of any member of the Xxxxxx Group, or in the name of any employee,
officer, director, stockholder, or agent of any such member, or
otherwise, on behalf of a member of the Xxxxxx Group to the appropriate
member of the Xxxxxx Group.
(f) Transfer and Assignment of Certain Agreements. Without
limiting the generality of the obligations set forth in Section 2.1(a):
(i) Xxxxxx hereby agrees that on or prior to the
Distribution Date or as soon as reasonably practicable thereafter,
subject to the limitations set forth in this Section 2.1(f), it will,
and it will cause each member of the Xxxxxx Group to, assign, transfer
and convey to the appropriate member of the Xxxxxx Group all of Xxxxxx'
or such member of the Xxxxxx Group's respective right, title and
interest in and to any and all Contracts primarily related to the
Xxxxxx Business.
(ii) Xxxxxx hereby agrees that on or prior to the
Distribution Date or as soon as reasonably practicable thereafter,
subject to the limitations set forth in this Section 2.1(f), it will,
and it will cause each member of the Xxxxxx Group to, assign, transfer
and convey to the appropriate member of the Xxxxxx Group all of
Xxxxxx'x or such member of the Xxxxxx Group's respective right, title
and interest in and to any and all Contracts primarily related to the
Xxxxxx Business.
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(iii) Subject to the provisions of this Section
2.1(f), any agreement to which any of the parties hereto or any of
their Subsidiaries is a party that inures to the benefit of more than
one of the Xxxxxx Business and Xxxxxx Business shall be assigned in
part so that each party shall be entitled to the rights and benefits
inuring to its business under such agreement.
(iv) The assignee of any agreement assigned, in whole
or in part, hereunder (an "Assignee") shall assume and agree to pay,
perform, and fully discharge all obligations of the assignor under such
agreement or, in the case of a partial assignment under paragraph
(f)(iii), such Assignee's related portion of such obligations as
determined in accordance with the terms of the relevant agreement,
where determinable on the face thereof, and otherwise as determined in
accordance with the practice of the parties prior to the Distribution.
(v) Notwithstanding anything in this Agreement to the
contrary, this Agreement shall not constitute an agreement to assign
any agreement, in whole or in part, or any rights thereunder if the
agreement to assign or attempt to assign, without the consent of a
Third Party, would constitute a breach thereof or in any way adversely
affect the rights of the assignor or Assignee thereof. Until such
consent is obtained, or if an attempted assignment thereof would be
ineffective or would adversely affect the rights of any party hereto so
that the intended Assignee would not, in fact, receive all such rights,
the parties will cooperate with each other in any arrangement designed
to provide for the intended Assignee the benefits of, and to permit the
intended Assignee to assume liabilities under, any such agreement.
(g) Consents. The parties hereto shall use their commercially
reasonable efforts to obtain required consents to transfer and/or assignment of
licenses, permits and authorizations of Governmental Authorities and consents to
transfer and/or assignment of Contracts from Third Parties.
(h) Certain Liabilities. For purposes of this Agreement,
including Article III hereof, Xxxxxx and Xxxxxx agree that (i) any and all
Liabilities arising from or based upon misstatements in or omissions from the
Registration Statement or the Information Statement under the captions set forth
on Exhibit I to this Agreement (insofar as such information relates to Xxxxxx or
the terms of the Distribution) shall be deemed to be Xxxxxx Liabilities and not
Xxxxxx Liabilities and (ii) any and all Liabilities arising from or based upon
misstatements in or omissions from the Registration Statement or the Information
Statement other than those specified in Section 2.1(h)(i) shall be deemed to be
Xxxxxx Liabilities and not Xxxxxx Liabilities.
(i) Election of Officers. On or prior to the Distribution
Date, Xxxxxx shall take all actions necessary and desirable so that as of the
Distribution Date the officers of Xxxxxx will be as set forth in the Information
Statement.
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(j) State Securities Laws. Prior to the Distribution Date,
Xxxxxx and Xxxxxx shall take all such action as may be necessary or appropriate
under the securities or blue sky laws of states or other political subdivisions
of the United States in order to effect the Distribution.
(k) Listing Application; Notice to NYSE. (i) Prior to the
Distribution Date, Xxxxxx and Xxxxxx shall prepare and file with the NYSE a
listing application and related documents and shall take all such other actions
with respect thereto as shall be necessary or desirable in order to cause the
NYSE to list on or prior to the Distribution Date, subject to official notice of
issuance, the Xxxxxx Shares.
(ii) Prior to the Distribution, Xxxxxx shall, to the
extent possible, give the NYSE not less than ten days advance notice of
the Distribution Record Date in compliance with Rule 10b-17 under the
Exchange Act.
(l) Other Transactions. On or prior to the Distribution Date,
the parties hereto shall have consummated those other transactions in connection
with the Corporate Restructuring Transactions and the Distribution that are
contemplated by the Information Statement and not specifically referred to in
this Section 2.1.
SECTION 2.2 Cash Payment and Closing Payment.
(a) Prior to the Distribution Date, Xxxxxx shall pay to Xxxxxx
cash in the aggregate amount of $545,614,009 (the "Cash Payment"), which is the
sum of: (i) $700,000,000; plus (ii) cash and cash equivalents of Xxxxxx as of
October 1, 1999; less (iii) the amount of indebtedness for borrowed money of
Xxxxxx as of such date; and less (iv) amounts owed by Xxxxxx under Xxxxxx'x
European asset securitization facility as of such date. Xxxxxx and Xxxxxx hereby
agree that the amount of the Cash Payment shall not be subject to alteration or
modification, except to correct errors in the calculation of particular items
constituting elements of the foregoing formula.
(b) Not fewer than five Business Days prior to the
Distribution Date, Xxxxxx shall prepare and deliver to Xxxxxx an itemized
estimate of (i) the payment items set forth in Schedule 2.2(b)(i) (such items,
the "Payment Items") and (ii) the credit items set forth in Schedule 2.2(b)(ii)
(such items, the "Credit Items"), which estimate shall be prepared in good faith
on a basis consistent with Schedules 2.2(b)(i) and 2.2(b)(ii). On the Business
Day prior to the Distribution Date, (A) if the sum of such estimated Payment
Items equals or exceeds the sum of such estimated Credit Items, Xxxxxx will pay
to Xxxxxx cash in the amount of such excess, if any, and (B) if the sum of such
estimated Credit Items exceeds the sum of such estimated Payment Items, Xxxxxx
will pay to Lanier cash in the amount of such excess (any such payment required
by this Section 2.2(b)(A) or (B), the "Closing Payment").
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SECTION 2.3 Post-Distribution Adjustment.
(a) (i) As soon as practicable, but in no event later than 90
days following the Distribution Date, Xxxxxx shall, on a basis
consistent with the methods, principles, practices and policies set
forth in Schedules 2.2(b)(i) and 2.2(b)(ii), prepare and deliver to
Xxxxxx an itemized calculation of the Payment Items and Credit Items
(the "Calculation").
(ii) During the preparation of the Calculation and
the period of any review or dispute thereof, (A) Xxxxxx shall (i)
provide Xxxxxx and Xxxxxx'x authorized representatives with full access
to the books, records, facilities and employees of Xxxxxx relating to
the determination of the Payment Items and Credit Items, and (ii)
cooperate fully with Xxxxxx and Xxxxxx'x authorized representatives,
including the provision on a timely basis of all information reasonably
requested by Xxxxxx, and (B) Xxxxxx shall (i) provide Xxxxxx and
Xxxxxx' authorized representatives with full access to the books,
records, facilities and employees of Xxxxxx, and (ii) cooperate fully
with Xxxxxx and Xxxxxx' authorized representatives, including the
provision on a timely basis of all information reasonably requested by
Xxxxxx relating to the determination of the Payment Items and Credit
Items.
(iii) After receipt of the Calculation, Xxxxxx shall
have 30 days to review the Calculation, together with the workpapers
used in the preparation thereof. In connection therewith, Xxxxxx and
its authorized representatives shall have full access to all relevant
books, records and employees of Xxxxxx relating to the determination of
the Payment Items and Credit Items. Unless Xxxxxx delivers written
notice to Xxxxxx on or prior to the 30th day after Xxxxxx'x receipt of
the Calculation stating that Xxxxxx has objections to the Calculation
and describing any such objections with particularity, Xxxxxx shall be
deemed to have accepted and agreed to the Payment Items and Credit
Items set forth therein. If Xxxxxx notifies Xxxxxx in writing of its
objections to the Calculation, Xxxxxx and Xxxxxx shall, within 30 days
(or such longer period as the parties may agree in writing) following
the delivery of such written notice (the "Resolution Period"), attempt
to resolve their differences, and any resolution by them as to any
disputed amounts shall be final, binding and conclusive on the parties
for all purposes.
(iv) Any amounts remaining in dispute at the
conclusion of the Resolution Period ("Unresolved Changes") shall be
submitted to the office of Ernst & Young LLP located in New York, New
York ("Ernst & Young") within 10 days after the expiration of the
Resolution Period. Each party agrees to execute, if requested by Ernst
& Young, an engagement letter containing reasonable terms. All fees and
expenses relating to the work, if any, to be performed by Ernst & Young
shall be borne pro rata by Xxxxxx and Xxxxxx in proportion to the
allocation of the dollar amount of the Unresolved Changes between
Xxxxxx and Xxxxxx made by Ernst & Young, such that the prevailing party
shall pay the lesser portion of such fees and expenses. Ernst & Young
shall act as an arbitrator to determine,
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based on the provisions of this Section 2.3(a), only the Unresolved
Changes. Ernst & Young's determination of the Unresolved Changes shall
be made within 30 days of the submission to Ernst & Young of the
Unresolved Changes, shall be set forth in a written statement delivered
by Ernst & Young to Xxxxxx and Xxxxxx and shall be final, binding and
conclusive on the parties for all purposes.
(v) In the event that Xxxxxx and Xxxxxx agree or are
deemed to agree as to the Payment Items and Credit Items, then within
five Business Days following such agreement (A) if the sum of the
Payment Items, as determined in accordance with this Section 2.3,
equals or exceeds the sum of the Credit Items, as so determined, Xxxxxx
will pay to Xxxxxx, or Xxxxxx will refund to Xxxxxx, cash in an amount
necessary to cause Xxxxxx to have received, as a result of the Closing
Payment and the payment contemplated by this Section 2.3(a)(v)(A), the
exact amount of such excess, if any, and (B) if the sum of the Credit
Items, as determined in accordance with this Section 2.3, exceeds the
sum of the Payment Items, as so determined, Xxxxxx will pay to Xxxxxx,
or Xxxxxx will refund to Xxxxxx, cash in an amount necessary to cause
Xxxxxx to have received, as a result of the Closing Payment and the
payment contemplated by this Section 2.3(a)(v)(B), the exact amount of
such excess (any such payment required by this Section 2.3(a)(v)(A) or
(B), a "Post-Distribution Adjustment"). In the event that there are
Unresolved Changes at the end of the Resolution Period, then (i) if
Xxxxxx and Xxxxxx agree that a Post-Distribution Adjustment is owed to
one party regardless of the ultimate resolution of any Unresolved
Changes, then the minimum amount which Xxxxxx and Xxxxxx agree is owed
to such party shall be paid within five Business Days after the end of
the Resolution Period and any additional amounts owing to such party
with respect to the Unresolved Changes shall be paid within five
Business Days after resolution thereof by Ernst & Young and (ii) in all
other cases, any and all payments shall be made within five Business
Days after resolution of the Unresolved Changes by Ernst & Young.
(vi) Any payments made pursuant to this Section
2.2(b) shall be accompanied by interest at the Applicable Rate from the
Distribution Date up to and including the date of payment, and payments
not made when due accrue at the Applicable Rate plus 4% per annum.
SECTION 2.4 Intercompany Receivables.
(a) Deduction Items. Not fewer than five Business Days prior
to the Distribution Date, Xxxxxx shall prepare and deliver to Xxxxxx an itemized
estimate of the credit items (collectively, the "Deduction Items") set forth on
Schedule 2.4(a). Prior to the Distribution Date, Xxxxxx will cause the aggregate
balance of the intercompany payables owed by the Xxxxxx Group to the Xxxxxx
Group to be reduced by an amount equal to the aggregate amount of the Deduction
Items. The parties agree that the Deduction Items will not be settled by means
of cash transfers.
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(b) Intercompany Receivables. Prior to the Effective Time, (i)
Xxxxxx shall cause all intercompany receivables, payables and loans (other than
receivables, payables and loans otherwise specifically provided for hereunder,
including without limitation the Xxxxxx Accounts Payable, or under any Ancillary
Agreement, including payables created or required hereby or by any Ancillary
Agreement) (collectively, "Intercompany Receivables") owed by Xxxxxx or any
other member of the Xxxxxx Group located in the United States to Xxxxxx or any
member of the Xxxxxx Group to be forgiven, canceled and terminated as of the
Distribution Date, without the payment of any consideration therefor; (ii)
Xxxxxx shall cause all Intercompany Receivables owed by Lanier or any member of
the Xxxxxx Group located in the United States to Xxxxxx or any other member of
the Xxxxxx Group to be forgiven, canceled and terminated as of the Distribution
Date without the payment of any consideration therefor; (iii) Xxxxxx shall cause
all Intercompany Receivables owed by any other member of the Xxxxxx Group
located outside the United States to Xxxxxx or any member of the Xxxxxx Group to
be paid and discharged in full in accordance with their respective terms; and
(iv) Xxxxxx shall cause all Intercompany Receivables owed by any member of the
Xxxxxx Group located outside the United States to Xxxxxx or any member of the
Xxxxxx Group to be paid and discharged in full in accordance with their
respective terms.
SECTION 2.5 Assumption and Satisfaction of Liabilities. Except
as otherwise specifically set forth in any Ancillary Agreement, from and after
the Effective Time, (i) Xxxxxx shall, and shall cause each member of the Xxxxxx
Group to, assume, pay, perform and discharge all Xxxxxx Liabilities in the
ordinary course of business, consistent with past practice, and (ii) Xxxxxx
shall, and shall cause each member of the Xxxxxx Group, to assume, pay, perform
and discharge all Xxxxxx Liabilities in the ordinary course of business,
consistent with past practice. To the extent reasonably requested to do so by
another party hereto, each party hereto agrees to execute and deliver such
documents, in a form reasonably satisfactory to such party, as may be reasonably
necessary to evidence the assumption of any Liabilities hereunder.
SECTION 2.6 Resignations. Xxxxxx shall cause all its employees
to resign, effective as of the Effective Time, from all positions as officers or
directors of any member of the Xxxxxx Group in which they serve, and Xxxxxx
shall cause all its employees to resign, effective as of the Effective Time,
from all positions as officers or directors of any members of the Xxxxxx Group
in which they serve.
SECTION 2.7 Further Assurances. In case at any time after the
Effective Time any further action is reasonably necessary or desirable to carry
out the purposes of this Agreement and the Ancillary Agreements, the proper
officers of each party to this Agreement shall take all such necessary action.
Without limiting the foregoing, Xxxxxx and Xxxxxx shall use their commercially
reasonable efforts promptly to obtain all consents and approvals, to enter into
all agreements and to make all filings and applications that may be required for
the consummation of the transactions contemplated by this Agreement and the
Ancillary Agreements, including, without limitation, all applicable governmental
and regulatory filings.
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SECTION 2.8 Limited Representations or Warranties. Each of the
parties hereto agrees that no party hereto is, in this Agreement or in any other
agreement or document contemplated by this Agreement or otherwise, making any
representation or warranty whatsoever, as to title or value of Assets being
transferred. It is also agreed that, notwithstanding anything to the contrary
otherwise expressly provided in the relevant Conveyancing and Assumption
Instrument, all Assets either transferred to or retained by the parties, as the
case may be, shall be "as is, where is" and that (subject to Section 2.7) the
party to which such Assets are to be transferred hereunder shall bear the
economic and legal risk that such party's or any of the Subsidiaries' title to
any such Assets shall be other than good and marketable and free from
encumbrances. Similarly, each party hereto agrees that, except as otherwise
expressly provided in the relevant Conveyancing and Assumption Instrument, no
party hereto is representing or warranting in any way that the obtaining of any
consents or approvals, the execution and delivery of any agreements and the
making of any filings or applications contemplated by this Agreement will
satisfy the provisions of any or all applicable agreements or the requirements
of any or all applicable laws or judgments, it being agreed that the party to
which any Assets are transferred shall bear the economic and legal risk that any
necessary consents or approvals are not obtained or that any requirements of
laws or judgments are not complied with.
SECTION 2.9 Removal of Certain Guarantees; Releases from
Liabilities.
(a) Except as otherwise specified in any Ancillary Agreement,
Xxxxxx shall use its commercially reasonable efforts to have, on or prior to the
Distribution Date, or as soon as practicable thereafter, any member of the
Xxxxxx Group removed as guarantor of or obligor for any Xxxxxx Liability,
including in respect of those guarantees set forth on Schedule 2.9(a) of this
Agreement.
(b) If Xxxxxx is unable to obtain, or to cause to be obtained,
any such required removal as set forth in clause (a) of this Section 2.9, the
applicable guarantor or obligor shall continue to be bound as such and, unless
not permitted by law or the terms thereof, the relevant beneficiary shall or
shall cause one of its Subsidiaries, as agent or subcontractor for such
guarantor or obligor to pay, perform and discharge fully all the obligations or
other liabilities of such guarantor or obligor thereunder from and after the
date hereof.
(c) If (i) Xxxxxx is unable to obtain, or to cause to be
obtained, any such required removal as set forth in clause (a) of this Section
2.9, or (ii) Xxxxxx Liabilities arise from and after the Effective Time but
before a member of the Xxxxxx Group which is a guarantor or obligor with
reference to any such Xxxxxx Liability is removed pursuant to Section 2.9(a),
then such guarantor or obligor shall be indemnified by Lanier for all Xxxxxx
Liabilities incurred by it in its capacity as guarantor or obligor. Without
limiting the foregoing, Xxxxxx shall, or shall cause a member of the Xxxxxx
Group to, reimburse any such member of the Xxxxxx Group which is a guarantor or
obligor as soon as practicable (but in no event later than 30 days) following
delivery by Xxxxxx to Xxxxxx of notice of a payment made pursuant to this
Section 2.9 in respect of Xxxxxx Liabilities.
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(d) In the event that at any time before or after the
Distribution Date Xxxxxx identifies any letters of credit, interest rate or
foreign exchange contracts, surety bonds or other Contracts (excluding
guarantees) that relate primarily to the Xxxxxx Business but for which a member
of the Xxxxxx Group has contingent, secondary, joint, several or other Liability
of any nature whatsoever, Lanier shall, at its expense, take such actions and
enter into such agreements and arrangements as Xxxxxx may reasonably request to
effect Xxxxxx' (or a member of the Xxxxxx Group's ) release or substitution.
(e) The parties hereto shall use commercially reasonable
efforts to obtain, or cause to be obtained, any consent, substitution or
amendment required to novate or assign all obligations under any Contracts or
Liabilities of any nature whatsoever transferred under this Agreement, or to
obtain in writing the unconditional release of the assignor so that in each such
case, Xxxxxx shall be solely responsible for the Xxxxxx Liabilities and Xxxxxx
shall be solely responsible for the Xxxxxx Liabilities; provided, however, that
no party shall be obligated to pay any consideration therefor (except for filing
fees or other similar charges) to any Third Party from whom such consent,
substitution, amendment or release is requested. Whether or not any such
consent, substitution, amendment or release is obtained, nothing in this Section
2.9(e) shall in any way limit the obligations of the parties under Article III.
SECTION 2.10 Witness Services. At all times from and after the
Distribution Date, each of Xxxxxx and Xxxxxx shall use their commercially
reasonable efforts to make available to the other, upon reasonable written
request, its and its Subsidiaries' officers, directors, employees and agents as
witnesses to the extent that (i) such persons may reasonably be required in
connection with the prosecution or defense of any Action in which the requesting
party from time to time be involved and (ii) there is no conflict in the Action
between the requesting party and Xxxxxx and Xxxxxx, as applicable. A party
providing witness services to the other party under this Section shall be
entitled to receive from the recipient of such services, upon the presentation
of invoices therefor, payments for such amounts, relating to disbursements and
other out-of-pocket expenses (which shall be deemed to exclude the costs of
salaries and benefits of employees who are witnesses), as may be reasonably
incurred in providing such witness services.
SECTION 2.11 Transfers Not Effected Prior to the Distribution;
Transfers Deemed Effective as of the Distribution Date. To the extent that any
transfers contemplated by this Article II shall not have been consummated on or
prior to the Distribution Date, the parties shall cooperate to effect such
transfers as promptly following the Distribution Date as shall be practicable.
Nothing herein shall be deemed to require the transfer of any Assets or the
assumption of any Liabilities which by their terms or operation of law cannot be
transferred; provided, however, that the parties hereto and their respective
Subsidiaries shall cooperate to seek to obtain any necessary consents or
approvals for the transfer of all Assets and Liabilities contemplated to be
transferred pursuant to this Article II. In the event that any such transfer of
Assets or Liabilities has not been consummated, from and after the Distribution
Date the party retaining such Asset or Liability shall hold such Asset in trust
for the use and benefit of the party entitled thereto (at the expense of the
party entitled
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thereto) or retain such Liability for the account of the party by whom such
Liability is to be assumed pursuant hereto, as the case may be, and take such
other action as may be reasonably requested by the party to whom such Asset is
to be transferred, or by whom such Liability is to be assumed, as the case may
be, in order to place such party, insofar as is reasonably possible, in the same
position as would have existed had such Asset or Liability been transferred as
contemplated hereby. As and when any such Asset or Liability becomes
transferable, such transfer shall be effected forthwith. The parties agree that,
as of the Distribution Date, each party hereto shall be deemed to have acquired
complete and sole beneficial ownership over all of the Assets, together with all
rights, powers and privileges incident thereto, and shall be deemed to have
assumed in accordance with the terms of this Agreement all of the Liabilities,
and all duties, obligations and responsibilities incident thereto, which such
party is entitled to acquire or required to assume pursuant to the terms of this
Agreement. In the event that a Xxxxxx Asset or Xxxxxx Liability is transferred
to Xxxxxx, then promptly upon the request of either party, the parties shall
cooperate to transfer such asset or liability to Xxxxxx. In the event that a
Xxxxxx Asset or Xxxxxx Liability is transferred to Xxxxxx, then promptly upon
the request of either party, the parties shall cooperate to transfer such asset
or liability to Xxxxxx.
SECTION 2.12 Conveyancing and Assumption Instruments. In
connection with the transfers of Assets and the assumptions of Liabilities
contemplated by this Agreement, the parties shall execute or cause to be
executed by the appropriate entities the Conveyancing and Assumption Instruments
in substantially the form contemplated hereby for transfers to be effected
pursuant to New York law or the Laws of one of the other states of the United
States or, if not appropriate for a given transfer, and for transfers to be
effected pursuant to non-U.S. Laws, in such other form as the parties shall
reasonably agree. The transfer of capital stock shall be effected by means of
delivery of stock certificates and executed stock powers and notation on the
stock record books of the corporation or other legal entities involved, or by
such other means as may be required in any non- U.S. jurisdiction to transfer
title to stock and, to the extent required by applicable Law, by notation on
public registries.
SECTION 2.13 Ancillary Agreements. Prior to the Distribution
Date, each of Xxxxxx and Xxxxxx shall enter into, and/or (where applicable)
shall cause members of their respective Groups to enter into, the Ancillary
Agreements and any other agreements in respect of the Distribution reasonably
necessary or appropriate in connection with the transactions contemplated hereby
and thereby.
SECTION 2.14 Corporate Names; Trademarks. Except as otherwise
specifically provided in any Ancillary Agreement:
(a) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, Xxxxxx will, at its own
expense, remove (or, if necessary, on an interim basis, cover up) any and all
exterior signs and other identifiers located on any of its property or premises
or on the property or premises used by it or its Subsidiaries which refer or
pertain to Xxxxxx
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or which include the Xxxxxx name, logo or other trademark (including but not
limited to "Next Level Solutions" or any similar xxxx or any derivative thereof)
or other Xxxxxx intellectual property; and
(b) as soon as is reasonably practicable after the
Distribution Date but in any event within six months thereafter, Xxxxxx will,
and will cause the Xxxxxx Subsidiaries to, remove from all letterhead,
envelopes, invoices and other communications media of any kind, all references
to Xxxxxx, including the "Xxxxxx Corporation" name, logo and any other trademark
or other Xxxxxx intellectual property (except that Xxxxxx shall not be required
to take any such action with respect to materials in the possession of
customers).
SECTION 2.15 Non-Solicitation. (a) For a period of two years
following the Distribution Date, Lanier will not and will not permit its agents
or any member of the Xxxxxx Group to, directly or indirectly, solicit or recruit
for its employment any employee of the Xxxxxx Group as of the Distribution
without the prior written consent of Xxxxxx; provided, however, that nothing in
this Section 2.15(a) shall (i) prohibit the hiring of any Person who applied for
employment with the Xxxxxx Group solely in response to any public medium
advertising or (ii) prohibit the hiring of any Person referred by any Person
whose principal business is the recruiting of prospective employees, provided
that such Person has been instructed in writing by Lanier prior to the referral
not to recruit any employees of the Xxxxxx Group.
(b) For a period of two years following the Distribution Date,
Xxxxxx will not and will not permit its agents or any member of the Xxxxxx Group
to, directly or indirectly, solicit or recruit for its employment any employee
of the Xxxxxx Group as of the Distribution without the prior written consent of
Xxxxxx; provided, however, that nothing in this Section 2.15(b) shall (i)
prohibit the hiring of any Person who applied for employment with the Xxxxxx
Group solely in response to any public medium advertising or (ii) prohibit the
hiring of any Person referred by any Person whose principal business is the
recruiting of prospective employees, provided that such Person has been
instructed in writing by Xxxxxx prior to the referral not to recruit any
employees of the Xxxxxx Group.
ARTICLE III.
INDEMNIFICATION
SECTION 3.1 Indemnification by Xxxxxx. Except as otherwise
specifically set forth in any provision of this Agreement, Xxxxxx shall
indemnify, defend and hold harmless the Xxxxxx Indemnitees from and against any
and all Indemnifiable Losses of the Xxxxxx Indemnitees arising out of, by reason
of or otherwise in connection with the Xxxxxx Liabilities or alleged Xxxxxx
Liabilities, including any breach by Xxxxxx of any provision of this Section
3.1. Subject to the last sentence of Section 7.1, this Agreement is not intended
to address, and should not be interpreted to address, the matters specifically
and expressly covered by the Ancillary Agreements.
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SECTION 3.2 Indemnification by Xxxxxx. Except as otherwise
specifically set forth in any provision of this Agreement, Xxxxxx shall
indemnify, defend and hold harmless the Xxxxxx Indemnitees from and against any
and all Indemnifiable Losses of the Xxxxxx Indemnitees arising out of, by reason
of or otherwise in connection with the Xxxxxx Liabilities or alleged Xxxxxx
Liabilities, including any breach by Lanier of any provision of this Section
3.1. Subject to the last sentence of Section 7.1, this Agreement is not intended
to address, and should not be interpreted to address, the matters specifically
and expressly covered by the Ancillary Agreements.
SECTION 3.3 Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is made against a
Xxxxxx Indemnitee or a Xxxxxx Indemnitee (each, an "Indemnitee") by any Person
who is not a party to this Agreement (a "Third Party Claim") as to which such
Indemnitee is entitled to indemnification pursuant to this Agreement, such
Indemnitee shall notify the party which is or may be required pursuant to
Section 3.1 or Section 3.2. hereof to make such indemnification (the
"Indemnifying Party") in writing, and in reasonable detail, of the Third Party
Claim promptly (and in any event within 15 Business Days) after receipt by such
Indemnitee of written notice of the Third Party Claim; provided, however, that
failure to give such notification shall not affect the indemnification provided
hereunder except to the extent the Indemnifying Party shall have been actually
prejudiced as a result of such failure (except that the Indemnifying Party shall
not be liable for any expenses incurred during the period in which the
Indemnitee failed to give such notice). Thereafter, the Indemnitee shall deliver
to the Indemnifying Party, promptly (and in any event within ten Business Days)
after the Indemnitee's receipt thereof, copies of all notices and documents
(including court papers) received by the Indemnitee relating to the Third Party
Claim.
If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party shall be entitled to participate in the defense thereof and,
if it so chooses and acknowledges in writing its obligation to indemnify the
Indemnitee therefor, to assume the defense thereof with counsel selected by the
Indemnifying Party; provided that such counsel is not reasonably objected to by
the Indemnitee. Should the Indemnifying Party so elect to assume the defense of
a Third Party Claim, the Indemnifying Party shall, within 30 days (or sooner if
the nature of the Third Party Claim so requires), notify the Indemnitee of its
intent to do so, and the Indemnifying Party shall thereafter not be liable to
the Indemnitee for legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof; provided, that such
Indemnitee shall have the right to employ counsel to represent such Indemnitee
if, in such Indemnitee's reasonable judgment, a conflict of interest between
such Indemnitee and such Indemnifying Party exists in respect of such claim
which would make representation of both such parties by one counsel
inappropriate, and in such event the fees and expenses of such separate counsel
shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such
defense, the Indemnitee shall have the right to participate in the defense
thereof and to employ counsel, subject to the proviso of the preceding sentence,
at its own expense, separate from the counsel employed by the Indemnifying
Party, it being understood that the Indemnifying Party shall control such
defense. The Indemnifying Party shall be liable for the fees
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and expenses of counsel employed by the Indemnitee for any period during which
the Indemnifying Party has failed to assume the defense thereof (other than
during the period prior to the time the Indemnitee shall have given notice of
the Third Party Claim as provided above). If the Indemnifying Party so elects to
assume the defense of any Third Party Claim, all of the Indemnitees shall
cooperate with the Indemnifying Party in the defense or prosecution thereof,
including by providing or causing to be provided, Records and witnesses as soon
as reasonably practicable after receiving any request therefor from or on behalf
of the Indemnifying Party.
If the Indemnifying Party acknowledges in writing
responsibility for a Third Party Claim, then in no event will the Indemnitee
admit any liability with respect to, or settle, compromise or discharge, any
Third Party Claim without the Indemnifying Party's prior written consent;
provided, however, that the Indemnitee shall have the right to settle,
compromise or discharge such Third Party Claim without the consent of the
Indemnifying Party if the Indemnitee releases the Indemnifying Party from its
indemnification obligation hereunder with respect to such Third Party Claim and
such settlement, compromise or discharge would not otherwise adversely affect
the Indemnifying Party. If the Indemnifying Party acknowledges in writing
liability for a Third Party Claim, the Indemnitee will agree to any settlement,
compromise or discharge of a Third Party Claim that the Indemnifying Party may
recommend and that by its terms obligates the Indemnifying Party to pay the full
amount of the liability in connection with such Third Party Claim and releases
the Indemnitee completely in connection with such Third Party Claim and that
would not otherwise adversely affect the Indemnitee. If an Indemnifying Party
elects not to assume the defense of a Third Party Claim, or fails to notify an
Indemnitee of its election to do so as provided herein, such Indemnitee may
compromise, settle or defend such Third Party Claim.
Notwithstanding the foregoing, the Indemnifying Party shall
not be entitled to assume the defense of any Third Party Claim (and shall be
liable for the fees and expenses of counsel incurred by the Indemnitee in
defending such Third Party Claim) if the Third Party Claim seeks an order,
injunction or other equitable relief or relief for other than money damages
against the Indemnitee which the Indemnitee reasonably determines, after
conferring with its counsel, cannot be separated from any related claim for
money damages. If such equitable relief or other relief portion of the Third
Party Claim can be so separated from that for money damages, the Indemnifying
Party shall be entitled to assume the defense of the portion relating to money
damages.
(b) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Third-Party Claim, such Indemnifying Party
shall be subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances in respect of which such Indemnitee may have any right
or claim relating to such Third-Party Claim against any claimant or plaintiff
asserting such Third-Party Claim. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and expense of such
Indemnifying Party, in prosecuting any subrogated right or claim.
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(c) The remedies provided in this Article III shall be
cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.
SECTION 3.4 Indemnification Payments. (a) Indemnification
required by this Article III shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or loss, liability, claim, damage or expense is incurred. If the
Indemnifying Party fails to make an indemnification payment required by this
Article III within 30 days after receipt of a xxxx therefore or notice that a
loss, liability, claim, damage or expense has been incurred, the Indemnifying
Party shall also be required to pay interest on the amount of such
indemnification payment, from the date of receipt of the xxxx or notice of the
loss, liability, claim, damage or expense to, but not including the date of
payment, at the Applicable Rate.
(b) The amount of any claim by an Indemnitee under this
Agreement shall be reduced to reflect any actual tax savings received by any
Indemnitee that result from the Indemnifiable Losses that gave rise to such
indemnity.
ARTICLE IV.
ACCESS TO INFORMATION
SECTION 4.1 Provision of Corporate Records.
(a) Other than in circumstances in which indemnification is
sought pursuant to Article III (in which event the provisions of such Article
will govern), after the Distribution Date, upon the prior written request by
Xxxxxx for specific and identified agreements, documents, books, records or
files (collectively, "Records") which relate to (x) Xxxxxx or the conduct of the
Xxxxxx Business up to the Effective Time, or (y) any Ancillary Agreement (other
than the Tax Disaffiliation Agreement), Xxxxxx shall arrange, as soon as
reasonably practicable following the receipt of such request, to provide
appropriate copies of such Records (or the originals thereof if Xxxxxx has a
reasonable need for such originals) in the possession or control of Xxxxxx or
any of the Xxxxxx Subsidiaries, but only to the extent such items are not
already in the possession or control of the requesting party.
(b) Other than in circumstances in which indemnification is
sought pursuant to Article III (in which event the provisions of such Article
will govern), after the Distribution Date, upon the prior written request by
Xxxxxx for specific and identified Records which relate to (x) Xxxxxx or the
conduct of the Xxxxxx Business up to the Effective Time, or (y) any Ancillary
Agreement (other than the Tax Disaffiliation Agreement), Xxxxxx shall arrange,
as soon as reasonably practicable following the receipt of such request, to
provide appropriate copies of such Records (or the originals thereof if Xxxxxx
has a reasonable need for such originals) in the possession or control of Xxxxxx
or
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any of the Xxxxxx Subsidiaries, but only to the extent such items are not
already in the possession or control of the requesting party.
SECTION 4.2 Access to Information. Other than in circumstances
in which indemnification is sought pursuant to Article III (in which event the
provisions of such Article will govern), from and after the Distribution Date,
each of Xxxxxx and Xxxxxx shall afford to the other and its authorized
Representatives reasonable access during normal business hours, subject to
appropriate restrictions for classified, privileged or confidential information,
to the personnel, properties, books and records of such party and its
Subsidiaries insofar as such access is reasonably required by the other party
and relates to (x) such other party or the conduct of its business prior to the
Effective Time or (y) any Ancillary Agreement.
SECTION 4.3 Reimbursement; Other Matters. Except to the extent
otherwise contemplated by any Ancillary Agreement, a party providing Records or
access to information to the other party under this Article IV shall be entitled
to receive from the recipient, upon the presentation of invoices therefor,
payments for such amounts, relating to supplies, disbursements and other
out-of-pocket expenses, as may be reasonably incurred in providing such Records
or access to information.
SECTION 4.4 Confidentiality. Neither (i) Xxxxxx nor the Xxxxxx
Subsidiaries nor (ii) Xxxxxx nor the Xxxxxx Subsidiaries shall use or permit the
use of (without the prior written consent of the other) and shall keep, and
shall cause its consultants and advisors to keep, confidential all information
concerning the other party in its possession, its custody or under its control
(except to the extent that (A) such information has been in the public domain
through no fault of such party or (B) such information has been later lawfully
acquired from other sources by such party or (C) this Agreement or any other
Ancillary Agreement or any other agreement entered into pursuant hereto permits
the use or disclosure of such information) to the extent such information, (w)
relates to or was acquired during the period up to the Effective Time, (x)
relates to any Ancillary Agreement, (y) is obtained in the course of performing
services for the other party pursuant to any Ancillary Agreement, or (z) is
based upon or is derived from information described in the preceding clauses
(w), (x) or (y), and each party shall not (without the prior written consent of
the other) otherwise release or disclose such information to any other Person,
except such party's auditors, attorneys consultants and advisors, unless
compelled to disclose such information by judicial or administrative process or
unless such disclosure is required by Law and such party has used commercially
reasonable efforts to consult with the other affected party or parties prior to
such disclosure.
SECTION 4.5 Privileged Matters. The parties hereto recognize
that legal and other professional services that have been and will be provided
prior to the Distribution Date have been and will be rendered for the benefit of
each of the members of the Xxxxxx Group, and the members of the Xxxxxx Group,
and that each of the members of the Xxxxxx Group, and each of the members of the
Xxxxxx Group should be deemed to be the client for the purposes of asserting all
privileges which may be asserted under applicable Law. Except as otherwise
specifically provided
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in the Tax Disaffiliation Agreement with respect to tax matters, to allocate the
interests of each party in the information as to which any party is entitled to
assert a privilege, the parties agree as follows:
(a) Xxxxxx shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the Xxxxxx Business, whether or not the privileged
information is in the possession of or under the control of Xxxxxx or Xxxxxx.
Xxxxxx shall also be entitled, in perpetuity, to control the assertion or waiver
of all privileges in connection with privileged information that relates solely
to the subject matter of any claims constituting Xxxxxx Liabilities, now pending
or which may be asserted in the future, in any lawsuits or other proceedings
initiated against or by Xxxxxx, whether or not the privileged information is in
the possession of or under the control of Xxxxxx or Xxxxxx.
(b) Xxxxxx shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the Xxxxxx Business, whether or not the privileged
information is in the possession of or under the control of Xxxxxx or Xxxxxx.
Xxxxxx shall also be entitled, in perpetuity, to control the assertion or waiver
of all privileges in connection with privileged information which relates solely
to the subject matter of any claims constituting Xxxxxx Liabilities, now pending
or which may be asserted in the future, in any lawsuits or other proceedings
initiated against or by Lanier, whether or not the privileged information is in
the possession of Xxxxxx or under the control of Xxxxxx or Xxxxxx.
(c) The parties hereto agree that they shall have a shared
privilege, with equal right to assert or waive, subject to the restrictions in
this Section 4.5, with respect to all privileges not allocated pursuant to the
terms of Sections 4.5(a) and (b). All privileges relating to any claims,
proceedings, litigation, disputes, or other matters which involve Xxxxxx and
Xxxxxx in respect of which such parties retain any responsibility or liability
under this Agreement, shall be subject to a shared privilege among them.
(d) No party hereto may waive any privilege which could be
asserted under any applicable Law, and in which any other party hereto has a
shared privileged, without the consent of the other party, which consent shall
not be unreasonably withheld or delayed, except to the extent reasonably
required in connection with any litigation with Third Parties or as provided in
subsection (e) below. Consent shall be in writing, or shall be deemed to be
granted unless written objection is made within twenty (20) days after notice
upon the other party requesting such consent.
(e) In the event of any litigation or dispute between or among
any of the parties hereto, any party and a Subsidiary of another party hereto,
or a Subsidiary of one party hereto and a Subsidiary of another party hereto,
either such party may waive a privilege in which the other party has a shared
privilege, without obtaining the consent of the other party, provided that such
waiver of a shared privilege shall be effective only as to the use of
information with respect to the litigation or dispute between the relevant
parties and/or their Subsidiaries, and shall not operate as a waiver of the
shared privilege with respect to Third Parties.
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(f) If a dispute arises between or among the parties hereto or
their respective Subsidiaries regarding whether a privilege should be waived to
protect or advance the interest of any party, each party agrees that it shall
negotiate in good faith, shall endeavor to minimize any prejudice to the rights
of the other parties, and shall not unreasonably withhold consent to any request
for waiver by another party. Each party hereto specifically agrees that it will
not withhold consent to waiver for any purpose except to protect its own
legitimate interests.
(g) Upon receipt by any party hereto or by any Subsidiary
thereof of any subpoena, discovery or other request which arguably calls for the
production or disclosure of information subject to a shared privilege or as to
which another party has the sole right hereunder to assert a privilege, or if
any party obtains knowledge that any of its or any of its Subsidiaries' current
or former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such privileged information, such party shall promptly notify the
other party of the existence of the request and shall provide the other party a
reasonable opportunity to review the information and to assert any rights it or
they may have under this Section 4.5 or otherwise to prevent the production or
disclosure of such privileged information.
(h) The transfer of all Records and other information pursuant
to this Agreement is made in reliance on the agreement of Xxxxxx and Xxxxxx, as
set forth in Sections 4.4 and 4.5, to maintain the confidentiality of privileged
information and to assert and maintain all applicable privileges. The access to
information being granted pursuant to Sections 4.1 and 4.2 hereof, the agreement
to provide witnesses and individuals pursuant to Sections 2.10 and 3.3 hereof,
the furnishing of notices and documents and other cooperative efforts
contemplated by Section 3.3 hereof, and the transfer of privileged information
between and among the parties and their respective Subsidiaries pursuant to this
Agreement shall not be deemed a waiver of any privilege that has been or may be
asserted under this Agreement or otherwise.
SECTION 4.6 Ownership of Information. Any information owned by
one party or any of its Subsidiaries that is provided to a requesting party
pursuant to Article III or this Article IV shall be deemed to remain the
property of the providing party. Unless specifically set forth herein, nothing
contained in this Agreement shall be construed as granting or conferring rights
of license or otherwise in any such information.
SECTION 4.7 Retention of Records. Xxxxxx shall deliver to
Xxxxxx upon Xxxxxx'x request all Records that are specifically identified by
Xxxxxx and known by Xxxxxx, after reasonable inquiry, to be in its control or
possession relating to Xxxxxx Assets, Xxxxxx Liabilities or the Xxxxxx Business.
Except (a) as provided in the Tax Disaffiliation Agreement or (b) when a longer
retention period is otherwise required by Law or agreed to in writing, the
Xxxxxx Group and the Xxxxxx Group shall retain, for a period of at least eight
years, all Records relating to the Xxxxxx Business as of the Effective Time.
Notwithstanding the foregoing, in lieu of retaining any specific Records, Xxxxxx
or Xxxxxx may offer in writing to deliver such Records to the other and, if such
offer is not accepted
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within 90 days, the offered Records may be destroyed or otherwise disposed of at
any time. If a recipient of such offer shall request in writing prior to the
scheduled date for such destruction or disposal that any of Records proposed to
be destroyed or disposed of be delivered to such requesting party, the party
proposing the destruction or disposal shall promptly arrange for delivery of
such of the Records as was requested (at the cost of the requesting party).
SECTION 4.8 Limitation of Liability; Release. (a) No party
shall have any liability to any other party in the event that any information
exchanged or provided pursuant to this Agreement which is an estimate or
forecast, or which is based on an estimate or forecast, is found to be
inaccurate.
(b) Effective upon the Distribution and except as otherwise
specifically set forth in this Agreement, each of Xxxxxx and Xxxxxx releases and
forever discharges the other and its Representatives and Subsidiaries, of and
from all debts, demands, actions, causes of action, suits, accounts, covenants,
contracts, agreements, damages, and any and all claims, demands and liabilities
whatsoever of every name and nature, both in law and in equity, against such
other party, its Representatives and Subsidiaries or any of its assigns, which
the releasing party has or ever had, which arise out of or relate to events,
circumstances or actions taken by such other party prior to the Distribution;
provided, however, that the foregoing general release shall not apply to this
Agreement, the Ancillary Agreements or the transactions contemplated hereby or
thereby or to the Xxxxxx Accounts Payable and shall not affect either party's
right to enforce this Agreement, any of the Ancillary Agreements or any of the
agreement or contracts set forth on Exhibit J, under which the Xxxxxx Accounts
Payable are owed, in accordance with their terms.
SECTION 4.9 Other Agreements Providing for Exchange of
Information. The rights and obligations granted under this Article IV are
subject to any specific limitations, qualifications or additional provisions on
the sharing, exchange or confidential treatment of information set forth in any
Ancillary Agreement.
ARTICLE V.
DISPUTE RESOLUTION
SECTION 5.1 Negotiation. In the event of a controversy,
dispute or claim arising out of, in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this Agreement
or the transactions contemplated hereby, including, without limitation, any
claim based on contract, tort, statute or constitution (but excluding any
controversy, dispute or claim arising out of any agreement relating to the use
or lease of real property if any Third Party is a party to such controversy,
dispute or claim) (collectively, "Agreement Disputes"), the management of the
parties shall negotiate in good faith for a reasonable period of time to settle
such Agreement Dispute,
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provided such reasonable period shall not, unless otherwise agreed by the
parties in writing, exceed 30 days from the time the parties began such
negotiations; provided, further, that in the event of any mediation or
arbitration in accordance with Sections 5.2 and 5.3 hereof, the parties shall
not assert the defenses of statute of limitations and laches arising for the
period beginning after the date the parties began negotiations hereunder, and
any contractual time period or deadline under this Agreement or any Ancillary
Agreement to which such Agreement Dispute relates shall not be deemed to have
passed until such Agreement Dispute has been resolved.
SECTION 5.2 Mediation. If after such reasonable period such
management are unable to settle such Agreement Dispute (and in any event, unless
otherwise agreed in writing by the parties, after 60 days have elapsed from the
time the parties began such negotiations) and the Agreement Dispute involves a
controversy, dispute or claim of less than $500,000, such Agreement Dispute
shall be determined, at the request of any party, by binding mediation conducted
in Orlando, Florida or at another location which the parties mutually select,
before a retired judge sitting on the panel of Judicial Arbitration & Mediation
Services, Inc. The mediation process shall continue as the exclusive method of
resolving the Agreement Dispute (other than negotiation between the parties)
until the earlier of the Agreement Dispute being resolved and the mediator
finding in good faith that all settlement possibilities have been exhausted and
that the matter is not resolvable through mediation. If the mediator makes such
a finding, at the request of any party, the Agreement Dispute shall then be
determined by binding arbitration in accordance with Section 5.3 hereof.
SECTION 5.3 Arbitration. If after such reasonable period such
management are unable to settle such Agreement Dispute (and in any event, unless
otherwise agreed in writing by the parties, after 60 days have elapsed from the
time the parties began such negotiations) and the Agreement Dispute involves a
controversy, dispute or claim of $500,000 or more, such Agreement Dispute shall
be determined, at the request of any party, by binding arbitration conducted in
Orlando, Florida or at another location which the parties mutually select,
before and in accordance with the then-existing International Arbitration Rules
of the American Arbitration Association (the "Rules"). In any dispute between
the parties hereto, the numbers of arbitrators shall be three. Any judgment or
award rendered by the arbitrator shall be final, binding and nonappealable
(except upon grounds specified in 9 U.S.C. Section 10(a) as in effect on the
date hereof). If the parties are unable to agree on an arbitrator or
arbitrators, the arbitrator or arbitrators shall be selected in accordance with
the Rules. Any controversy concerning whether an Agreement Dispute is an
arbitrable Agreement Dispute, whether arbitration has been waived, whether an
assignee of this Agreement is bound to arbitrate, or as to the interpretation of
enforceability of this Article V shall be determined by the arbitrator or
arbitrators. In resolving any dispute, the parties intend that the arbitrator or
arbitrators apply the substantive laws of the State of New York, without regard
to the choice of law principles thereof. The parties intend that the provisions
to arbitrate set forth herein be valid, enforceable and irrevocable. The parties
agree to comply with any award made in any such arbitration proceedings that has
become final in accordance with the Rules and agree to enforcement of or entry
of judgment upon such award, by any court of competent jurisdiction, including
(a) the state courts of the State of Florida, located in Orlando, or (b) the
United States District Court for the Middle District of
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Florida, in accordance with Section 7.17 hereof. The arbitrator or arbitrators
shall be entitled, if appropriate, to award any remedy in such proceedings,
including, without limitation, monetary damages, specific performance and all
other forms of legal and equitable relief; provided, however, the arbitrator or
arbitrators shall not be entitled to award punitive damages. Without limiting
the provisions of the Rules, unless otherwise agreed in writing by or among the
parties or permitted by this Agreement, the undersigned shall keep confidential
all matters relating to the arbitration or the award, provided such matters may
be disclosed (i) to the extent reasonably necessary in any proceeding brought to
enforce the award or for entry of a judgment upon the award and (ii) to the
extent otherwise required by Law. Nothing contained herein is intended to or
shall be construed to prevent any party, in accordance with Article 22(3) of the
Rules or otherwise, from applying to any court of competent jurisdiction for
interim measures or other provisional relief in connection with the subject
matter of any Agreement Disputes.
SECTION 5.4 Continuity of Service and Performance. Unless
otherwise agreed in writing, the parties will continue to provide service and
honor all other commitments under this Agreement and each Ancillary Agreement
during the course of dispute resolution pursuant to the provisions of this
Article V with respect to all matters not subject to such dispute, controversy
or claim.
SECTION 5.5 Other Remedies. Nothing in this Article V shall
limit the right that any party may otherwise have to seek to obtain (a)
preliminary injunctive relief in order to preserve the status quo pending the
resolution of a dispute or (b) temporary or permanent injunctive relief from any
breach of any provisions of this Agreement.
ARTICLE VI.
INSURANCE
SECTION 6.1 Policies and Rights Included Within Assets. The
Xxxxxx Assets shall include (a) any and all rights of an insured party under
each of the Xxxxxx Shared Policies, subject to the terms of such Xxxxxx Shared
Policies and any limitations or obligations of Xxxxxx contemplated by this
Article VI, specifically including rights of indemnity and the right to be
defended by or at the expense of the insurer, with respect to all claims, suits,
actions, proceedings, injuries, losses, liabilities, damages and expenses
incurred or claimed to have been incurred prior to the Distribution Date by any
party in or in connection with the conduct of the Xxxxxx Business or, to the
extent any claim is made against Xxxxxx or any of the Xxxxxx Subsidiaries, the
conduct of the Xxxxxx Business, and which claims, suits, actions, proceedings,
injuries, losses, liabilities, damages and expenses may arise out of an insured
or insurable occurrence under one or more of such Xxxxxx Shared Policies;
provided, however, that nothing in this clause shall be deemed to constitute (or
to reflect) an assignment or transfer of such Xxxxxx Shared Policies, or any of
them, to Xxxxxx, and (b) the Xxxxxx Policies.
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SECTION 6.2 Post-Distribution Date Claims. (a) If, subsequent
to the Distribution Date, any Person shall assert a claim against Lanier or any
of the Xxxxxx Subsidiaries (including where Xxxxxx or the Xxxxxx Subsidiaries
are joint defendants with other Persons) with respect to any claim, suit,
action, proceeding, injury, loss, liability, damage or expense incurred or
claimed to have been incurred prior to the Distribution Date in or in connection
with the conduct of the Xxxxxx Business or, to the extent any claim is made
against Lanier or any of the Xxxxxx Subsidiaries (including where Xxxxxx or the
Xxxxxx Subsidiaries are joint defendants with other Persons), the conduct of the
Xxxxxx Business and which claim, suit, action, proceeding, injury, loss,
liability, damage or expense may arise out of an insured or insurable occurrence
under one or more of the Xxxxxx Shared Policies, Xxxxxx shall assert and collect
any related Insurance Proceeds under such Xxxxxx Shared Policy on behalf of
Xxxxxx and remit promptly to Xxxxxx any Insurance Proceeds so collected, and
Xxxxxx shall further on behalf of Lanier assert any and all rights of an insured
party under such Xxxxxx Shared Policy with respect to such asserted claim,
specifically including rights of indemnity and the right to be defended by or at
the expense of the insurer and the right to any applicable Insurance Proceeds
thereunder; provided, however, that nothing in this Section 6.2 shall be deemed
to constitute (or to reflect) an assignment or transfer of the Xxxxxx Shared
Policies, or any of them, to Xxxxxx.
SECTION 6.3 Administration; Other Matters. (a) Administration.
From and after the Distribution Date, Xxxxxx shall be responsible for (i)
Insurance Administration of the Xxxxxx Shared Policies and (ii) Claims
Administration (except as provided below) under such Xxxxxx Shared Policies with
respect to Xxxxxx Liabilities and Xxxxxx Liabilities; provided that the
retention of such responsibilities by Xxxxxx is in no way intended to limit,
inhibit or preclude any right to insurance coverage for any Insured Claim of a
named insured under such Policies as contemplated by the terms of this
Agreement; and provided further that Xxxxxx' retention of the administrative
responsibilities for the Xxxxxx Shared Policies shall not relieve the party
submitting any Insured Claim of the primary responsibility for reporting such
Insured Claim accurately, completely and in a timely manner or of such party's
authority to settle any such Insured Claim within any period permitted or
required by the relevant Policy. Xxxxxx may discharge its administrative
responsibilities under this Section 6.3 by contracting for the provision of
services by independent parties. Each of the parties hereto shall administer and
pay any costs relating to defending its respective Insured Claims under Xxxxxx
Shared Policies to the extent such defense costs are not covered under such
Policies and shall be responsible for obtaining or reviewing the appropriateness
of releases upon settlement of its respective Insured Claims under Xxxxxx Shared
Policies. Xxxxxx shall reimburse Xxxxxx promptly for all disbursements,
out-of-pocket expenses and direct and indirect costs of employees or agents of
Xxxxxx relating to Claims Administration and Insurance Administration
contemplated by this Section 6.3(a) on behalf of Xxxxxx.
(b) Exceeding Policy Limits.
(i) Where Xxxxxx Liabilities are specifically covered
under a Xxxxxx Shared Policy for periods prior to the Distribution
Date, or covering claims made after the
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Distribution Date with respect to an occurrence prior to the
Distribution Date, then from and after the Distribution Date Xxxxxx may
claim coverage for Insured Claims under such Xxxxxx Shared Policy as
and to the extent that such insurance is available up to the full
extent of the applicable limits of liability of such Xxxxxx Shared
Policy (and may receive any Insurance Proceeds with respect thereto as
contemplated by Section 6.2 or Section 6.3(c) hereof), subject to the
terms of this Section 6.3.
(ii) Except as set forth in this Section 6.3(b),
Xxxxxx and Xxxxxx shall not be liable to one another for claims not
reimbursed by insurers for any reason not within the control of Xxxxxx
or Xxxxxx, as the case may be, including coinsurance provisions,
deductibles, quota share deductibles, self-insured retentions,
bankruptcy or insolvency of an insurance carrier, Xxxxxx Shared Policy
limitations or restrictions, any coverage disputes, any failure to
timely claim by Xxxxxx or Lanier or any defect in such claim or its
processing.
(c) Allocation of Insurance Proceeds. Insurance Proceeds
received with respect to claims, costs and expenses under the Xxxxxx Shared
Policies shall be paid to Xxxxxx, which shall thereafter administer the Xxxxxx
Shared Policies by paying the Insurance Proceeds, as appropriate, to Xxxxxx with
respect to Xxxxxx Liabilities and to Xxxxxx with respect to the Xxxxxx
Liabilities. Payment of the allocable portions of indemnity costs of Insurance
Proceeds resulting from such Policies will be made by Xxxxxx to the appropriate
party upon receipt from the insurance carrier. In the event that the aggregate
limits on any Xxxxxx Shared Policies are exceeded by the aggregate of
outstanding Insured Claims by the relevant parties hereto, such parties agree to
allocate the Insurance Proceeds received thereunder based upon their respective
percentage of the total of their bona fide claims which were covered under such
Xxxxxx Shared Policy (their "allocable portion of Insurance Proceeds"), and any
party who has received Insurance Proceeds in excess of such party's allocable
portion of Insurance Proceeds shall pay to the other party the appropriate
amount so that each party will have received its allocable portion of Insurance
Proceeds pursuant hereto. Each of the parties agrees to use commercially
reasonable efforts to maximize available coverage under those Xxxxxx Shared
Policies applicable to it, and to take all commercially reasonable steps to
recover from all other responsible parties in respect of an Insured Claim to the
extent coverage limits under a Xxxxxx Shared Policy have been exceeded or would
be exceeded as a result of such Insured Claim.
(d) Allocation of Deductibles. In the event that the parties
have bona fide claims under any Xxxxxx Shared Policy for which a deductible is
payable, the parties agree that the aggregate amount of the deductible paid
shall be borne by the parties in the same proportion which the Insurance
Proceeds received by each such party bears to the total Insurance Proceeds
received under the applicable Xxxxxx Shared Policy (their "allocable share of
the deductible"), and any party who has paid more than its allocable share of
the deductible shall be entitled to receive from the other party an appropriate
amount so that each party has borne its allocable share of the deductible
pursuant hereto.
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(e) Xxxxxx shall be responsible for the full amount of the
deductible for general liability and automobile liability claims in connection
with the Xxxxxx Business.
(f) Workers Compensation. With respect to any workers
compensation claims for the period prior to the Effective Time, the terms of the
Ancillary Workers Compensation Agreement, attached hereto as Exhibit K, shall
govern.
SECTION 6.4 Agreement for Waiver of Conflict and Shared
Defense. In the event that Insured Claims of more than one of the parties hereto
exist relating to the same occurrence, the parties shall jointly defend and
waive any conflict of interest necessary to the conduct of the joint defense.
Nothing in this Article VI shall be construed to limit or otherwise alter in any
way the obligations of the parties to this Agreement, including those created by
this Agreement, by operation of Law or otherwise.
SECTION 6.5 Cooperation. The parties agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1 Complete Agreement; Construction. This Agreement,
including the Exhibits and Schedules, and the Ancillary Agreements shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. In the event of any inconsistency
between this Agreement and any Schedule hereto, the Schedule shall prevail.
Other than Section 2.8, Section 4.5 and Article V, which shall prevail over any
inconsistent or conflicting provisions in any Ancillary Agreement,
notwithstanding any other provisions in this Agreement to the contrary, in the
event and to the extent that there shall be a conflict between the provisions of
this Agreement and the provisions of any Ancillary Agreement, such Ancillary
Agreement shall control.
SECTION 7.2 Ancillary Agreements. Subject to the last sentence
of Section 7.1, this Agreement is not intended to address, and should not be
interpreted to address, the matters specifically and expressly covered by the
Ancillary Agreements.
SECTION 7.3 Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
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SECTION 7.4 Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 7.5 Distribution Expenses. Except as otherwise set
forth in this Agreement or any Ancillary Agreement, all costs and expenses
incurred on or prior to the Distribution Date (whether or not paid on or prior
to the Distribution Date) in connection with the preparation, execution,
delivery, printing and implementation of this Agreement and any Ancillary
Agreement, the Information Statement (including the Registration Statement) and
the Distribution and the consummation of the transactions contemplated thereby,
excluding the fees and expenses of Xxxxxxxx & Xxxxxxxx and Xxxxxx Xxxxxxx & Co.
Incorporated shall be charged to and paid by Lanier. Such expenses shall be
deemed to be Xxxxxx Liabilities. Except as otherwise set forth in this Agreement
or any Ancillary Agreement, each party shall bear its own costs and expenses
incurred after the Distribution Date. Any amount or expense to be paid or
reimbursed by any party hereto to any other party hereto shall be so paid or
reimbursed promptly after the existence and amount of such obligation is
determined and written demand therefor is made.
SECTION 7.6 Notices. All notices and other communications
hereunder shall be in writing, shall reference this Agreement and shall be hand
delivered or mailed by registered or certified mail (return receipt requested)
or sent by any means of electronic message transmission with delivery confirmed
(by voice or otherwise) to the parties at the following addresses (or at such
other addresses for a party as shall be specified by like notice) and will be
deemed given on the date on which such notice is received ("Notices"):
To Xxxxxx:
Xxxxxx Corporation
0000 Xxxx XXXX Xxxx.
Xxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Corporation
0000 Xxxx XXXX Xxxx.
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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To Xxxxxx:
Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SECTION 7.7 Waivers. The failure of any party to require
strict performance by any other party of any provision in this Agreement will
not waive or diminish that party's right to demand strict performance thereafter
of that or any other provision hereof.
SECTION 7.8 Amendments. Subject to the terms of Section 7.11
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
SECTION 7.9 Assignment. This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the other party hereto, and any attempt to
assign any rights or obligations arising under this Agreement without such
consent shall be void.
SECTION 7.10 Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
SECTION 7.11 Termination. This Agreement (including Article
III hereof) may be terminated and the Distribution may be amended, modified or
abandoned at any time prior to the Distribution by and in the sole discretion of
Xxxxxx without the approval of Xxxxxx or the stockholders of Xxxxxx. In the
event of such termination, no party shall have any liability of any kind to any
other party or any other person. After the Distribution, this Agreement may not
be terminated except by an agreement in writing signed by the parties; provided,
however, that Article III shall not be terminated or amended after the
Distribution in respect of the Third Party beneficiaries thereto without the
consent of such persons.
SECTION 7.12 Subsidiaries. Each of the parties hereto shall
cause to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein to be performed by any Subsidiary of
such party or by any entity that is contemplated to be a Subsidiary of such
party on and after the Distribution Date.
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SECTION 7.13 Third Party Beneficiaries. Except as provided in
Article III relating to Indemnitees, this Agreement is solely for the benefit of
the parties hereto and their respective Subsidiaries and Affiliates 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 7.14 Title and Headings. Titles and headings to
sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 7.15 Exhibits and Schedules. The Exhibits and
Schedules shall be construed with and as an integral part of this Agreement to
the same extent as if the same had been set forth verbatim herein.
SECTION 7.16 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 7.17 Consent to Jurisdiction. Without limiting the
provisions of Article V hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the state courts of the State of Florida, located
in the City of Orlando, and (b) the United States District Court for the Middle
District of Florida, 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 Middle District of Florida or
if such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the state courts of the State of Florida, located in
the City of Orlando. 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 above shall be effective service of process for any
action, suit or proceeding in Florida with respect to any matters to which it
has submitted to jurisdiction in this Section 7.17. 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 state courts of the State of Florida, located in
the City of Orlando, or (ii) the United States District Court for the Middle
District of Florida, 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.
SECTION 7.18 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations
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to replace the invalid, illegal or unenforceable provisions with valid
provisions, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 7.19 Consolidation, Merger, Etc. Involving Xxxxxx.
Xxxxxx shall not consolidate with or merge into any other Person or convey,
transfer or lease all or any substantial portion of its properties and assets to
any Person, and Xxxxxx shall not permit any Person to consolidate with or merge
into Xxxxxx or convey, transfer or lease all or any substantial portion of its
properties and assets to Xxxxxx, unless, in each case Xxxxxx shall consolidate
with or merge into another Person or convey, transfer or lease all or any
substantial portion of its properties and assets to any Person, the Person
formed by such consolidation or into which Xxxxxx is merged or the Person which
acquires by conveyance or transfer, or which leases, all or any substantial
portion of properties and assets of Xxxxxx shall be a corporation, partnership,
limited liability company or trust and shall expressly assume, by a written
agreement, executed and delivered to Xxxxxx, in form reasonably satisfactory to
Xxxxxx, all of the liabilities, obligations and expenses to be assumed by Xxxxxx
under this Agreement and the due and punctual performance or observance of every
agreement and covenant of this Agreement on the part of Xxxxxx to be performed
or observed.
SECTION 7.20 Consolidation, Merger, Etc. Involving Xxxxxx.
Xxxxxx shall not consolidate with or merge into any other Person or convey,
transfer or lease all or any substantial portion of its properties and assets to
any Person, and Xxxxxx shall not permit any Person to consolidate with or merge
into Xxxxxx or convey, transfer or lease all or any substantial portion of its
properties and assets to Xxxxxx, unless, in each case Xxxxxx shall consolidate
with or merge into another Person or convey, transfer or lease all or any
substantial portion of its properties and assets to any Person, the Person
formed by such consolidation or into which Xxxxxx is merged or the Person which
acquires by conveyance or transfer, or which leases, all or any substantial
portion of properties and assets of Xxxxxx shall be a corporation, partnership,
limited liability company or trust and shall expressly assume, by a written
agreement, executed and delivered to Xxxxxx, in form reasonably satisfactory to
Xxxxxx, all of the liabilities, obligations and expenses to be assumed by Xxxxxx
under this Agreement and the due and punctual performance or observance of every
agreement and covenant of this Agreement on the part of Xxxxxx to be performed
or observed.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the day and year first above written.
XXXXXX CORPORATION
By______________________________
Name:
Title:
Witness:_______________________
Name:
XXXXXX WORLDWIDE, INC.
By______________________________
Name:
Title:
Witness:_______________________
Name:
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