Exhibit 10.1
ACRYLONITRILE SEPARATION AGREEMENT
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This ACRYLONITRILE SEPARATION AGREEMENT (this "Separation Agreement")
is entered into by and among O&D USA LLC ("O&D"), a Delaware limited liability
company, BP Amoco Chemical Company ("BP"), a Delaware corporation, ANEXCO, LLC
("ANEXCO"), a Delaware limited liability company, and Sterling Chemicals, Inc.
("Sterling"), a Delaware corporation, effective as of May 31, 2005 (the
"Effective Date"), with reference to the following facts:
A. Sterling owns a plant in Texas City, Texas (the "AN Plant") for
the production of acrylonitrile ("AN") that has not been in operation since
February 2005 due to Sterling's alleged force majeure event, which is
specifically an alleged inability to purchase propylene in adequate quantities,
affecting Sterling's ability to fulfill certain contractual obligations to O&D
and ANEXCO. O&D and ANEXCO dispute Sterling's declaration of the alleged force
majeure event. On May 6, 2005, O&D and Sterling agreed in principle to a
settlement of such dispute (the "May 6 Settlement Agreement").
B. O&D and Sterling are the only two members of ANEXCO, and each owns
a fifty percent (50%) membership interest in ANEXCO.
C. O&D and Sterling are parties to the following agreements which are
referred to collectively as the "Agreements" herein: (i) an Acrylonitrile
Expanded Relationship and Master Modification Agreement dated effective as of
June 19, 2003 (the "ER Agreement"); (ii) an Amended and Restated Production
Agreement dated effective as of March 31, 1998 (as amended, the "Production
Agreement"); (iii) a Joint Venture Agreement dated effective as of March 31,
1998 (as amended, the "ANEXCO JV Agreement"); (iv) a Limited Liability Company
Agreement of ANEXCO, LLC dated effective as of March 31, 1998 (the "ANEXCO LLC
Agreement"); (v) a Catalyst Sales Contract dated effective as of March 31, 1998
(as amended, the "Catalyst Agreement"); (vi) a letter agreement dated April 23,
1998 (the "April 23 Letter Agreement"); (vii) a letter agreement dated March 31,
1998 (the "March 31 Letter Agreement"); (viii) a European Distribution Agreement
dated effective as of March 31, 1998 (as amended, the "European Distribution
Agreement"); (ix) a License Agreement dated effective as of April 15, 1988 (the
"License Agreement"); and (x) a Security Agreement dated as of August 1, 1988
(the "Security Agreement"). Effective April 1, 2005, BP assigned its interests
in the Agreements to O&D.
D. In satisfaction of the May 6 Settlement Agreement, the parties
hereto have entered into this Separation Agreement to provide for: (i) up to
three distributions by ANEXCO to Sterling; (ii) the transfer of Sterling's 50%
ownership interest in ANEXCO to O&D; (iii) the termination of the Agreements,
except the ANEXCO LLC Agreement, the Catalyst Agreement and the License
Agreement; (iv) the amendment and restatement of the Catalyst Agreement and the
License Agreement; (v) O&D's payment to Sterling of the sum of Seven Hundred
Thousand Dollars and No Cents ($700,000.00); and (vi) certain waivers and
releases by the parties related to their AN business relationship through the
Effective Date.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I: DISTRIBUTIONS BY ANEXCO, LLC TO STERLING
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1.1 Earnings Distribution. The "Earnings Distribution" will be Four
Million, Eight Hundred Thousand U.S. Dollars (U.S. $4,800,000) (the
"Initial Distribution"), as adjusted by the Supplemental
Distribution, if any, and the Final Distribution, if any.
1.1.1 Initial Distribution. The Initial Distribution will be
made by ANEXCO to Sterling in immediately available funds
at Closing. At Closing, Sterling will execute and deliver
to ANEXCO a receipt for such Initial Distribution,
substantially in the form of the receipt attached hereto
as Exhibit A-1.
1.1.2 Supplemental Distribution. On July 15, 2005, ANEXCO shall
pay Sterling up to $1,500,000 in immediately available
funds (the "Supplemental Distribution") to the extent that
ANEXCO has not incurred a bad debt write-off (in
accordance with generally accepted U.S. accounting
principles consistently applied) of any accounts
receivable due ANEXCO from "Customer A" (as such term is
defined in a letter agreement by and between ANEXCO and
Sterling dated as of the Effective Date (the "Customer
Letter Agreement") as of the date of the Separation
Agreement. The parties hereto acknowledge and agree that,
for purposes of this Section 1.1.2, any funds received by
ANEXCO from Customer A from and after the date of this
Separation Agreement shall be applied to the outstanding
balance due ANEXCO as of the date of this Separation
Agreement, irrespective of any allocation of such funds by
Customer A or ANEXCO to any other purpose. If ANEXCO
incurs any such bad debt write-off on or before July 15,
2005, the amount of the Supplemental Distribution shall be
reduced by an amount equal to the lesser of $1,500,000 and
10% of such bad debt write-off. Upon receipt of any
Supplemental Distribution, Sterling will execute and
deliver to ANEXCO a receipt for such Supplemental
Distribution, substantially in the form of the receipt
attached hereto as Exhibit A-2.
1.1.3 Audited Financials. As soon as practicable, ANEXCO will
engage a firm of independent certified public accountants
to prepare audited financial statements for ANEXCO as of
May 31, 2005 (the "Audited Financials"). ANEXCO will
deliver to Sterling a copy of the Audited Financials as
soon as practicable after receiving the Audited Financials
in final form from the accountants. During the 30-day
period beginning with Sterling's receipt of the Audited
Financials (the "Review Period"), Sterling may examine the
Audited Financials. If Sterling objects to anything
contained in the Audited Financials, Sterling shall notify
ANEXCO in writing (such notice, a "Disagreement Notice")
on or before the last day of the Review Period, setting
forth a specific description of Sterling's objections and
the amount of any adjustments that Sterling believes
should be made. If no Disagreement Notice is delivered
within the Review Period, the Audited Financials shall be
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deemed to have been accepted by Sterling. In the event
that a Disagreement Notice is delivered in accordance with
this Section, ANEXCO and Sterling shall attempt to resolve
the objections set forth therein within 30 days of receipt
of such Disagreement Notice. If ANEXCO and Sterling
resolve the objections, the Audited Financials shall be
adjusted and revised as necessary to reflect such
resolution solely for the purposes of this Separation
Agreement. If ANEXCO and Sterling are unable to resolve
all the objections set forth in the Disagreement Notice
within such 30-day period, ANEXCO and Sterling shall
jointly appoint, within five days of the end of such
30-day period, a mutually agreeable nationally recognized
audit firm (the "CPA Firm"). If ANEXCO and Sterling cannot
agree on the appointment of a CPA Firm, then the CPA Firm
shall be drawn by lot from the names of an equal number of
nationally recognized audit firms submitted by ANEXCO and
Sterling. The CPA Firm, acting as experts and not as
arbitrators, shall review the objections set forth in the
Disagreement Notice that have not been resolved by ANEXCO
and Sterling (collectively, the "Differences") as well as
any responsive statements to the Differences in the
Disagreement Notice made by ANEXCO. The CPA Firm shall be
instructed to make its determination of the appropriate
resolution of the Differences within 15 days after its
appointment. ANEXCO and Sterling shall each pay 50% of the
fees and disbursements of the CPA Firm. ANEXCO and
Sterling shall each provide to the CPA Firm reasonable
cooperation while the CPA Firm develops its determination.
In addition, ANEXCO shall provide the CPA Firm full access
(during normal business hours and upon reasonable notice)
to its books, ledgers, files, reports and operating
records, as well as the Audited Financials. The CPA Firm's
resolution of the Differences shall be conclusive and
binding upon the parties. The Audited Financials shall be
adjusted and revised as necessary to reflect any
Differences resolved by the CPA Firm solely for the
purposes of this Separation Agreement.
1.1.4 Final Distribution Adjustment. The "Final Distribution"
will be equal to (a) Sterling's share of ANEXCO equity on
the Effective Date (which will equal the value of "Member
Current Account - SCI", as reflected in the Audited
Financials (prior to the Initial Distribution), less (b)
the Initial Distribution, less (c) the Supplemental
Distribution, if any. The Final Distribution shall be made
on or before the latest to occur of (i) the 30th day after
receipt by Sterling of the Audited Financials, (ii) the
15th day after the resolution by ANEXCO and Sterling of
all objections set forth in any Disagreement Notice and
(iii) the 15th day after resolution by the CPA Firm of any
Differences. If the Final Distribution is a positive
value, ANEXCO will pay that amount in immediately
available funds to Sterling. If the Final Distribution is
a negative value, Sterling will pay an amount equal to the
absolute value of the Final Distribution in immediately
available funds to ANEXCO. After confirming receipt of the
Final Distribution, if any, the receiving party as
designated above will immediately execute and deliver to
the paying party a receipt for such Final Distribution,
substantially in the form of the receipt attached hereto
as Exhibit A-3.
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ARTICLE II: SALE AND PURCHASE OF STERLING'S INTEREST IN ANEXCO, LLC
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2.1 Sale and Purchase. At Closing (as defined in Section 5.1 below),
Sterling will sell, convey, transfer, assign and deliver, and O&D
will purchase and accept delivery of, all of Sterling's 50% ownership
interest in ANEXCO, LLC ("ANEXCO Interest") for $1. At Closing,
Sterling will execute and deliver to O&D an Assignment Agreement,
substantially in the form of the Assignment Agreement attached hereto
as Exhibit B and title to the ANEXCO Interest will pass from Sterling
to O&D. Immediately after the Closing, Sterling will cease to be a
member of ANEXCO, LLC; Sterling will cease to have any rights under
the ANEXCO LLC Agreement; and O&D, as the sole member of ANEXCO, LLC,
will execute an Amended and Restated ANEXCO LLC Agreement.
2.2 Resignations of Sterling Individuals as Officers and Directors of
ANEXCO. At Closing, Xxxx Xxxxxx, Xxxx Xxxxxx and any other Sterling
employees, current or former, each will resign from any and all
positions with ANEXCO, including any office and any seat on the board
of managers of ANEXCO. At Closing, Xxxx Xxxxxx, Xxxx Xxxxxx and such
other Sterling employees each will execute and deliver a resignation
letter, substantially in the form of the letter attached hereto as
Exhibit C.
2.3 Representations and Warranties of Sterling. Sterling hereby
represents and warrants as follows:
2.3.1 Interests. Sterling shall deliver the ANEXCO Interest to
O&D free and clear of all liens, pledges, security
interests, restrictions, encumbrances and claims. The
ANEXCO Interest represents all of the interests in ANEXCO
owned by or owing to, directly or indirectly, Sterling or
its affiliates, and Sterling has not sold, assigned or
transferred all or any portion of any interest in ANEXCO
to any person or entity.
2.3.2 Organization. Sterling is a corporation duly organized,
validly existing and in good standing under the laws of
the State of Delaware. Sterling has the corporate power to
conduct its business as presently conducted and to own and
hold the properties used in connection therewith.
2.3.3 Corporate Authority and Action. Sterling has the corporate
power and authority to enter into this Separation
Agreement and to perform all of its obligations hereunder
and consummate the transactions contemplated hereby.
Sterling has taken or will take all necessary and
appropriate corporate actions to authorize, execute and
deliver this Separation Agreement and to consummate the
transactions contemplated hereby. This Separation
Agreement constitutes the valid and binding obligation of
Sterling, enforceable in accordance with its terms
(except, in any case, as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally and by principles of equity).
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2.3.4 Contracts and Agreements. The execution and performance of
this Separation Agreement will not violate the terms of,
or operate as a default under, any contract or agreement
to which Sterling is a party.
2.4 Representations and Warranties of O&D. O&D hereby represents and
warrants as follows:
2.4.1 Organization. O&D is a limited liability company duly
organized, validly existing and in good standing under the
laws of the State of Delaware. O&D has the power to
conduct its business as presently conducted and to own and
hold the properties used in connection therewith.
2.4.2 Authority and Action. O&D has the power and authority to
enter into this Separation Agreement and to perform all of
its obligations hereunder and consummate the transactions
contemplated hereby. O&D has taken or will take all
necessary and appropriate actions to authorize, execute
and deliver this Separation Agreement and to consummate
the transactions contemplated hereby. This Separation
Agreement constitutes the valid and binding obligation of
O&D, enforceable in accordance with its terms (except, in
any case, as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and by
principles of equity).
2.4.3 Contracts and Agreements. The execution and performance of
this Separation Agreement will not violate the terms of,
or operate as a default under, any contract or agreement
to which O&D is a party.
2.5 Representations and Warranties of BP. BP hereby represents and
warrants as follows:
2.5.1 Organization. BP is a corporation duly organized, validly
existing and in good standing under the laws of the State
of Delaware. BP has the corporate power to conduct its
business as presently conducted and to own and hold the
properties used in connection therewith.
2.5.2 Corporate Authority and Action. BP has the corporate power
and authority to enter into this Separation Agreement and
to perform all of its obligations hereunder and consummate
the transactions contemplated hereby. BP has taken or will
take all necessary and appropriate corporate actions to
authorize, execute and deliver this Separation Agreement
and to consummate the transactions contemplated hereby.
This Separation Agreement constitutes the valid and
binding obligation of BP, enforceable in accordance with
its terms (except, in any case, as such enforceability may
be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally and by principles of equity).
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2.5.3 Contracts and Agreements. The execution and performance of
this Separation Agreement will not violate the terms of,
or operate as a default under, any contract or agreement
to which BP is a party.
2.6 Representations and Warranties of ANEXCO. ANEXCO hereby represents
and warrants as follows:
2.6.1 Organization. ANEXCO is a limited liability company duly
organized, validly existing and in good standing under the
laws of the State of Delaware. ANEXCO has the power to
conduct its business as presently conducted and to own and
hold the properties used in connection therewith.
2.6.2 Authority and Action. ANEXCO has the power and authority
to enter into this Separation Agreement and to perform all
of its obligations hereunder and consummate the
transactions contemplated hereby. ANEXCO has taken or will
take all necessary and appropriate actions to authorize,
execute and deliver this Separation Agreement and to
consummate the transactions contemplated hereby. This
Separation Agreement constitutes the valid and binding
obligation of ANEXCO, enforceable in accordance with its
terms (except, in any case, as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally and by principles of equity).
2.6.3 Contracts and Agreements. The execution and performance of
this Separation Agreement will not violate the terms of,
or operate as a default under, any contract or agreement
to which ANEXCO is a party.
2.7 Further Assurances. Sterling, O&D, BP and ANEXCO each, from time to
time, upon the reasonable request of any other party, will execute,
acknowledge or deliver or cause to be executed, acknowledged or
delivered, such instruments, documents, certifications and further
assurances and take such further action as may be necessary or
appropriate to carry out the purposes of and the transactions
contemplated by this Separation Agreement.
ARTICLE III: TERMINATION AND AMENDMENT OF CERTAIN CONTRACTS
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3.1 Termination of Certain Contracts. O&D, BP, Sterling and ANEXCO agree
that, at Closing, the ER Agreement, the Production Agreement, the
ANEXCO JV Agreement, the April 23 Letter Agreement, the March 31
Letter Agreement, the European Distribution Agreement and the
Security Agreement will each automatically terminate; and none of the
parties will have any further rights or obligations thereunder.
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3.2 Amendment and Restatement of Certain Contracts.
3.2.1 Catalyst Agreement. At Closing, O&D and Sterling will
execute and deliver an Amended and Restated Catalyst
Agreement, substantially in the form set forth in Exhibit
D attached hereto.
3.2.2 License Agreement. At Closing, O&D and Sterling will
execute and deliver an Amended and Restated License
Agreement, substantially in the form set forth in Exhibit
E attached hereto.
3.3 Termination of All Other Contracts Relating to AN. O&D, BP, ANEXCO
and Sterling agree that any agreement or contract to which Sterling,
on the one hand, and any of the other parties, on the other hand, is
a party and that is related to AN, any raw material for AN and/or the
AN Plant which is not specifically mentioned in Section 3.1 or 3.2
above (the "Other AN Agreements") will automatically terminate at
Closing, and none of the parties will have any further rights or
obligations thereunder. Notwithstanding anything to the contrary, any
agreements or contracts between O&D or BP, on the one hand, and
Sterling, on the other hand, with respect to acetic acid, benzene,
ethylene or any other products not related to AN, any raw material
for AN and/or the AN Plant shall be unaffected by this Separation
Agreement.
3.4 Payment by O&D. At Closing, O&D will pay to Sterling in immediately
available funds the amount of Seven Hundred Thousand U.S. Dollars
($700,000) (the "Settlement Payment"). At Closing, Sterling will
execute and deliver to O&D a receipt for such Settlement Payment,
substantially in the form of the receipt attached hereto as Exhibit
A-4.
3.5 Release of Lien. At Closing, the Collateral (as defined in the
Security Agreement) shall automatically be released and discharged
from the security interest granted under the Security Agreement.
ARTICLE IV: WAIVERS AND RELEASES
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4.1 Sterling. Sterling waives, releases and forever discharges O&D, BP
and ANEXCO, their respective parents, subsidiaries and affiliates,
and their respective officers, directors, agents, employees,
attorneys and successors and assigns (the "4.1 Released Parties")
from all claims, demands, damages, liabilities, amounts owed,
expenses, and costs whatsoever arising by reason of the Agreements,
any Other AN Agreement or the AN business prior to or on the
Effective Date which Sterling has, may have or, but for the execution
of this Separation Agreement, could have had against the 4.1 Released
Parties by reason of the Agreements, any Other AN Agreement or the AN
business or by reason of any matter in any way relating to, directly
or indirectly, the Agreements, any Other AN Agreement or the AN
business, except for (a) those obligations specifically undertaken by
the 4.1 Released Parties in this Separation Agreement, the Amended
and Restated Catalyst Agreement, the Amended and Restated License
Agreement or the Customer Letter Agreement, (b) any payment
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obligation of O&D for the actual May 2005 Fixed Cost Component as
determined by the terms of the Production Agreement within twenty
(20) days of receiving an invoice issued by Sterling for such amount,
which payment obligation will not exceed US$380,000, (c) any payment
obligation of ANEXCO for acrylonitrile shipped to ANEXCO by Sterling
prior to or on the Effective Date in accordance with the agreed
payment terms; and (d) any payment obligation of O&D for European
price adjustments for the fourth quarter of 2004 and for the first
quarter of 2005 in accordance with the payment terms of the European
Distribution Agreement.
4.2 O&D. O&D waives, releases and forever discharges Sterling and ANEXCO,
their respective parents, subsidiaries and affiliates, and their
respective officers, directors, agents, employees, attorneys and
successors and assigns (the "4.2 and 4.3 Released Parties") from all
claims, demands, damages, liabilities, amounts owed, expenses, and
costs whatsoever arising by reason of the Agreements, any Other AN
Agreement or the AN business prior to or on the Effective Date which
O&D has, may have or, but for the execution of this Separation
Agreement, could have had against the 4.2 and 4.3 Released Parties by
reason of the Agreements, any Other AN Agreement or the AN business
or by reason of any matter in any way relating to, directly or
indirectly, the Agreements, any Other AN Agreement or the AN
business, except for (a) any obligation specifically undertaken by
the 4.2 and 4.3 Released Parties in this Separation Agreement, the
Amended and Restated Catalyst Agreement, the Amended and Restated
License Agreement or the U.S. Transfer Agreement by and between O&D
and BP, (b) any payment obligation of ANEXCO for acrylonitrile
shipped to ANEXCO by O&D prior to or on the Effective Date in
accordance with the agreed payment terms; (c) with respect to ANEXCO,
any equity interest held by O&D in ANEXCO as of the Effective Date,
including without limitation the value of O&D's share of ANEXCO net
retained earnings or equity on the Effective Date; and (d) any
payment obligation of ANEXCO for its monthly management fees to O&D
incurred prior to or on the Effective Date in accordance with the
payment terms of the applicable invoice.
4.3 BP. BP waives, releases and forever discharges the 4.2 and 4.3
Released Parties from all claims, demands, damages, liabilities,
amounts owed, expenses, and costs whatsoever arising by reason of the
Agreements, any Other AN Agreement or the AN business prior to or on
the Effective Date which BP has, may have or, but for the execution
of this Separation Agreement, could have had against the 4.2 and 4.3
Released Parties by reason of the Agreements, any Other AN Agreement
or the AN business or by reason of any matter in any way relating to,
directly or indirectly, the Agreements, any Other AN Agreement or the
AN business, except for any obligation specifically undertaken by the
4.2 and 4.3 Released Parties in this Separation Agreement or the U.S.
Transfer Agreement by and between O&D and BP.
4.4 ANEXCO. ANEXCO waives, releases and forever discharges O&D, BP and
Sterling, their respective parents, subsidiaries and affiliates, and
their respective officers, directors, agents, employees, attorneys
and successors and assigns (the "4.4 Released Parties") from all
claims, demands, damages, liabilities, amounts owed, expenses, and
costs whatsoever arising by reason of the Agreements, any Other AN
Agreement or the AN business prior to or on the Effective Date which
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ANEXCO has, may have or, but for the execution of this Separation
Agreement, could have had against the 4.4 Released Parties by reason
of the Agreements, any Other AN Agreement or the AN business or by
reason of any matter in any way relating to, directly or indirectly,
the Agreements, any Other AN Agreement or the AN business, except for
(a) any obligation specifically undertaken by the 4.4 Release Parties
in this Separation Agreement or the Customer Letter Agreement, (b)
any payment obligation of O&D for its share of monthly management
fees, fixed distribution costs, and Asian sales office commissions
incurred prior to or on the Effective Date in accordance with the
payment terms of the applicable invoice, and (c) any payment
obligation of Sterling for its share of monthly management fees,
fixed distribution costs, and Asian sales office commissions incurred
prior to or on the Effective Date in accordance with the payment
terms of the applicable invoice.
4.5 Finality. The waivers and releases of each party made under this
Article IV will become effective and final, absolute and irrevocable
immediately at Closing.
ARTICLE V: THE CLOSING
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5.1 Closing. The closing of the transactions contemplated by this
Separation Agreement (the "Closing") and the enforceability of the
respective obligations of the parties hereunder will occur on or
before the close of business on Tuesday, May 31, 2005, or at such
other time as shall be mutually agreed upon by the parties hereto,
upon the fulfillment of the following deliveries, which shall be
mutually dependent and deemed to have taken place simultaneously:
5.1.1 Sterling Closing Deliveries. Sterling will deliver:
(a) The executed Separation Agreement to O&D, ANEXCO
and BP;
(b) The executed Assignment Agreement to O&D;
(c) The executed receipt for the Initial Distribution
to ANEXCO;
(d) The executed Customer Letter Agreement to ANEXCO;
(e) The executed resignation letters of Xxxx Xxxxxx
and Xxxx Xxxxxx to ANEXCO;
(f) The executed acknowledgement of the termination of
the agreements pursuant to Section 3.1 herein,
substantially in the form of Exhibit F hereto, to
O&D, ANEXCO and BP;
(g) The executed Amended and Restated Catalyst
Agreement to O&D;
(h) The executed Amended and Restated License
Agreement to O&D;
(i) The executed receipt for the Settlement Payment to
O&D;
(j) The executed Waiver and Release to O&D;
(k) The executed Waiver and Release to ANEXCO;
(l) The executed Waiver and Release to BP; and
(m) All other documents to be delivered by Sterling to
O&D, ANEXCO and/or BP on or before the Closing as
specified in this Separation Agreement.
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5.1.2 ANEXCO Closing Deliveries. ANEXCO will deliver:
(a) The executed Separation Agreement to O&D, BP and
Sterling;
(b) The Initial Distribution, by wire transfer to an
account specified by Sterling;
(c) The executed Customer Letter Agreement to
Sterling;
(d) The executed acknowledgement of the termination of
the agreements pursuant to Section 3.1 herein,
substantially in the form of Exhibit F hereto, to
O&D, BP and Sterling;
(e) The executed Waiver and Release to O&D;
(f) The executed Waiver and Release to BP;
(g) The executed Waiver and Release to Sterling; and
(h) All other documents to be delivered by ANEXCO to
O&D, BP and/or Sterling on or before the Closing
as specified in this Separation Agreement.
5.1.3 BP Closing Deliveries. BP will deliver:
(a) The executed Separation Agreement to O&D, ANEXCO
and Sterling;
(b) The executed acknowledgement of the termination of
the agreements pursuant to Section 3.1 herein,
substantially in the form of Exhibit F hereto, to
O&D, ANEXCO and Sterling;
(c) The executed Waiver and Release to ANEXCO;
(d) The executed Waiver and Release to Sterling; and
(e) All other documents to be delivered by BP to O&D,
ANEXCO and/or Sterling on or before the Closing as
specified in this Separation Agreement.
5.1.4 O&D Closing Deliveries. O&D will deliver:
(a) The executed Separation Agreement to BP, ANEXCO
and Sterling;
(b) The executed Assignment Agreement to Sterling;
(c) The executed acknowledgement of the termination of
the agreements pursuant to Section 3.1 herein,
substantially in the form of Exhibit F hereto, to
BP, ANEXCO and Sterling;
(d) An executed UCC-3 Filing Statement with respect to
O&D's security interest in the Security Agreement
to Sterling;
(e) The executed Amended and Restated Catalyst
Agreement to Sterling;
(f) The executed Amended and Restated License
Agreement to Sterling;
(g) The Settlement Payment, by wire transfer to an
account specified by Sterling;
(h) The Waiver and Release to ANEXCO;
(i) The Waiver and Release to Sterling; and
(j) All other documents to be delivered by O&D to
ANEXCO, BP and/or Sterling on or before the
Closing as specified in this Separation Agreement.
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5.2 Costs. Each party hereto will bear its own costs and expenses in
connection with this Separation Agreement and the transactions
contemplated hereby.
5.3 Further Assurances. Each party shall, at any time and from time to
time on and after the Effective Date, upon request by another party
hereto and without further consideration, take or cause to be taken
such actions and execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such instruments, documents,
transfers, conveyances and assurances as may reasonably be required
or desirable to fulfill the intent of this Separation Agreement. In
addition, ANEXCO shall deliver to Sterling (a) a K-1 for 2004 within
thirty days of receiving final audited financial statements from its
auditor for 2004, and (b) a K-1 for the period from January 1, 2005
through the Effective Date on or before the latest to occur of (i)
the 30th day after receipt by Sterling of the Audited Financials,
(ii) the 15th day after the resolution by ANEXCO and Sterling of all
objections set forth in any Disagreement Notice and (iii) the 15th
day after resolution by the CPA Firm of any Differences.
ARTICLE VI: GENERAL
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6.1 Notices. All notices, request and other communications shall be in
writing and shall be delivered by (a) regular, overnight or
registered or certified mail (return receipt requested), with first
class postage prepaid, (b) hand delivery, (c) facsimile or electronic
transmission or (d) overnight courier service, to the parties at the
following addresses or numbers:
If to Sterling: If to O&D:
Sterling Chemicals, Inc. O&D USA LLC
000 Xxxx Xxxxxx, Xxxxx 0000 200 East Xxxxxxxx
Houston, Texas 77002 Xxxxxxx, XX 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: General Counsel Attention: K'Xxxxx Xxxxxxx
If to ANEXCO: If to BP:
ANEXCO, LLC BP Amoco Chemical Company
c/o O&D USA LLC 000 Xxxx Xxxxxxxxxxx Xxxx
000 Xxxx Xxxxxxxxxxx Xxxx Xxxxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000 Attention: Xxxx Xxxxxx
Attention: Xxx Bridle
or at such other address or number as shall be designated by either
party in a notice to the other party given in accordance with this
Section. Except as otherwise provided in this Separation Agreement,
all such communications shall be deemed to have been duly given, (i)
in the case of a notice sent by regular mail, on the date actually
received by the addressee, (ii) in the case of a notice sent by
registered or certified mail, on the date receipted for (or refused)
on the return receipt, (iii) in the case of a notice delivered by
hand, when personally delivered, (iv) in the case of a notice sent by
facsimile or electronic transmission, upon transmission subject to
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telephone confirmation of receipt, and (v) in the case of a notice
sent by overnight mail or overnight courier service, the date
delivered at the designated address, in each case given or addressed
as aforesaid.
6.2 Remedies. If any party hereto breaches any of its obligations
hereunder, the other parties may pursue any available remedy at law
or in equity, including the right of specific performance, and the
exercise of such remedies shall not be a waiver of any right, remedy
or provision given by or contained in this Separation Agreement.
HOWEVER, IN NO EVENT SHALL ANY PARTY HERETO BE RESPONSIBLE OR LIABLE
TO ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL OR PUNITIVE
DAMAGES OR FOR LOST PROFITS OR REVENUES THAT ARISE OUT OF OR RELATE
TO THIS SEPARATION AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF.
6.3 Public Announcements. The terms of this Separation Agreement shall be
treated as confidential by the parties. Notwithstanding the
foregoing, the parties will be permitted to disclose information
about this Separation Agreement or the transactions contemplated
herein (a) to the extent required by law, (b) in connection with a
due diligence process conducted with respect to such party as long as
those receiving the due diligence materials are subject to
confidentiality obligations, (c) to communicate the ownership of
ANEXCO after the Closing, or (d) to the extent the parties mutually
agree. The parties acknowledge and agree that Sterling will be filing
a copy of this Separation Agreement with the Securities and Exchange
Commission on Form 8-K.
6.4 Independent Contractors. Each party hereto is and will be an
independent contractor with respect to its rights and obligations
under this Separation Agreement. The Separation Agreement will not be
construed to create a partnership, joint venture, association or
other entity or business organization between the parties hereto.
6.5 Assignment. This Separation Agreement shall be binding upon and shall
inure to the benefit of the respective parties and their successors
and assigns. No party hereto may assign any of its rights or duties
under this Separation Agreement without the prior written consent of
the other parties (not to be unreasonably withheld, delayed or
conditioned) and any attempted assignment without such consent shall
be void and unenforceable; provided, however, (a) that no such
consent shall be required for assignment (i) for collateral purposes
or (ii) to a successor in interest of all or substantially all of the
assets or business of either party to which this Separation Agreement
relates that assumes, in writing, all of the obligations of such
party under this Separation Agreement and (b) no assignment by either
party of any of its rights, interests or obligations hereunder shall
relieve such party of its obligations under this Separation Agreement
unless the other party expressly agrees otherwise in writing..
6.6 Counterparts. This Separation Agreement may be executed in two or
more counterparts, each of which will be deemed an original but all
of which taken together will constitute one and the same agreement.
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6.7 Severability. Should any clause, sentence, paragraph, Article,
subsection or Section of this Separation Agreement be judicially
declared to be invalid, unenforceable, or void, such decision will
not have the effect of invalidating or voiding the remainder of this
Separation Agreement, and the parties hereto agree that the part or
parts of this Separation Agreement so held to be invalid,
unenforceable, or void will be deemed to have been stricken herefrom
as if such stricken part or parts had never been included herein.
6.8 Entire Agreement; Amendment; Waiver; Headings. This Separation
Agreement together with the Amended and Restated Catalyst Agreement,
the Amended and Restated License Agreement and the Customer Letter
Agreement set forth all of the promises, agreements, conditions,
understandings, warranties, and representations between the parties
with respect to the matters covered hereby and thereby, and supersede
the May 6 Settlement Agreement, the ANEXCO LLC Agreement and all
other prior agreements, arrangements, and understandings between the
parties, whether written, oral or otherwise, with respect to the
subject matter hereof and thereof. For avoidance of doubt, if there
is any conflict between the terms of this Separation Agreement and
the terms of the May 6 Settlement Agreement or the ANEXCO LLC
Agreement, the terms of this Separation Agreement shall control.
There are no promises, agreements, conditions, understandings,
warranties, or representations, oral or written, express or implied,
between the parties concerning the subject matter hereof or of the
Amended and Restated Catalyst Agreement, the Amended and Restated
License Agreement or the Customer Letter Agreement except as set
forth herein or therein. No modification of or amendment to this
Separation Agreement will be valid for any purpose unless made in a
written document that specifically states that it is a modification
of or an amendment to this Separation Agreement, and the document is
signed by all of the parties. No waiver of any provision of this
Separation Agreement will be valid unless made in a written document
that specifically states it is a waiver under this Separation
Agreement and is signed by the party against whom that waiver is
sought to be enforced. No failure or delay on the part of any party
in exercising any right, power, or privilege under this Separation
Agreement, and no course of dealing between or among the parties,
will operate as a waiver of any right, power, or privilege hereunder.
No single or partial exercise of any right, power, or privilege under
this Separation Agreement will preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege
hereunder. No notice to or demand on any party under this Separation
Agreement will entitle such party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of
the rights of any party to any other or further action in any
circumstances without notice or demand. Article and Section headings
are included only for convenience, and are not to be construed as a
part of this Separation Agreement or in any way limiting or
amplifying the provisions of this Separation Agreement or the
interpretation hereof.
6.9 Governing Law. This Separation Agreement will be governed by and
interpreted in accordance with the laws of the State of Texas,
without regard to its principles on choice of law, except to the
extent that the laws of the State of Delaware govern the transfer of
the ANEXCO Interest from Sterling to O&D and any amendment to the
ANEXCO LLC Agreement made herein.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Separation Agreement as of the date first above written.
O&D USA LLC BP AMOCO CHEMICAL COMPANY
/s/ Xxxxx Xxxxxxx /s/ Xxxx Xxxxxx
------------------------------------ ----------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxx Xxxxxx
------------------------------ ----------------------------
Title: VP Sales and Marketing Title: PUL
----------------------------- ---------------------------
ANEXCO, LLC STERLING CHEMICALS, INC.
/s/ Xxxxxx X. Bridle /s/ Xxxxxxx X. Xxxxx
------------------------------------ ----------------------------------
Name: Xxxxxx X. Bridle Name: Xxxxxxx X. Xxxxx
------------------------------ ----------------------------
Title: President Title: President and Chief
----------------------------- Executive Officer
---------------------------
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