EXHIBIT 2
DISTRIBUTION AGREEMENT
between
XXXX CORPORATION,
and
ARCH CHEMICALS, INC.
--------------------------
Dated as of [ ], 1999
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DISTRIBUTION AGREEMENT
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions.......................... 1
ARTICLE II
Certain Transactions at or Prior to the Distribution;
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Certain Covenants
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SECTION 2.01. Certain Transactions................. 13
SECTION 2.02. Financing............................ 16
SECTION 2.03. Operations in Ordinary Course........ 16
SECTION 2.04. Capital Structure.................... 16
SECTION 2.05. Resignations......................... 16
SECTION 2.06. Further Assurances................... 16
SECTION 2.07. No Representations or................ 17
Warranties
SECTION 2.08. Elimination of Guarantees............ 17
SECTION 2.09. Intercompany Accounts................ 18
SECTION 2.10. Transfers Not Effected Prior to...... 18
Distribution Date; Transfers
Deemed Effective as of
Distribution Date
SECTION 2.11. Ancillary Agreements................. 19
ARTICLE III
The Distribution
----------------
SECTION 3.01. Distribution Record Date and
Distribution Date.................... 19
SECTION 3.02. The Agent............................ 19
SECTION 3.03. The Distribution..................... 19
SECTION 3.04. Contract Provisions.................. 20
ARTICLE IV
Access to Information
---------------------
SECTION 4.01. Provision of Corporate Records....... 20
SECTION 4.02. Access to Information................ 20
Page
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SECTION 4.03. Reimbursement; Records
Retention............................ 21
SECTION 4.04. Witness Services..................... 21
SECTION 4.05. Confidentiality...................... 21
ARTICLE V
Dispute Resolution
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SECTION 5.01. Dispute Resolution................... 22
ARTICLE VI
Insurance
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SECTION 6.01. Coverage............................. 24
SECTION 6.02. Claims Based Upon Pre-Distribution
Date Injury; Waiver.................. 24
SECTION 6.03. Administration....................... 26
SECTION 6.04. Insurance Proceeds................... 27
SECTION 6.05. Retrospectively Rated Policies....... 27
SECTION 6.06. Agreement for Waiver of Conflict
and Shared Defense................... 27
SECTION 6.07. Cooperation.......................... 27
ARTICLE VII
Indemnification
---------------
SECTION 7.01. Indemnification...................... 28
SECTION 7.02. Insurance Matters.................... 28
SECTION 7.03. Procedures for Indemnification....... 29
SECTION 7.04. Indemnification Payments............. 31
SECTION 7.05. Other Adjustments.................... 31
SECTION 7.06. Consolidation, Merger, Transfer,
or Lease............................. 32
SECTION 7.07. Survival............................. 32
ARTICLE VIII
Miscellaneous
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SECTION 8.01. Conditions to Obligations............ 32
SECTION 8.02. Exhibits and Schedules;
Interpretation....................... 34
SECTION 8.03. Entire Agreement..................... 34
ii
Page
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SECTION 8.04. Ancillary Agreements................. 34
SECTION 8.05. Counterparts......................... 34
SECTION 8.06. Survival of Agreements............... 35
SECTION 8.07. Expenses............................. 35
SECTION 8.08. Notices.............................. 35
SECTION 8.09. Waivers.............................. 35
SECTION 8.10. Amendments........................... 36
SECTION 8.11. Assignment........................... 36
SECTION 8.12. Successors and Assigns............... 36
SECTION 8.13. Termination.......................... 36
SECTION 8.14. Subsidiaries......................... 36
SECTION 8.15. Third Party Beneficiaries............ 36
SECTION 8.16. Attorney Fees........................ 36
SECTION 8.17. Title and Headings................... 37
SECTION 8.18. Exhibits and Schedules............... 37
SECTION 8.19. Specific Performance................. 37
SECTION 8.20. Governing Law........................ 37
SECTION 8.21. Consent to Jurisdiction.............. 37
SECTION 8.22. Severability......................... 38
EXHIBITS
Exhibit A - Form of Arch Amended and Restated
- Articles of Incorporation
Exhibit B - Form of Arch By-laws
Exhibit C - Form of Arch Rights Agreement
SCHEDULES
Schedule 1.01(a) - Real Estate
Schedule 1.01(b) - Equity Interests
Schedule 1.01(c) - Certain Additional Transferred
Assets
Schedule 1.01(d) - Retained Assets
Schedule 1.01(e) - Retained Businesses
Schedule 1.01(f) - Litigation
Schedule 1.01(g) - Certain Contractual Liabilities
Schedule 1.01(h) - Certain Additional Liabilities
Schedule 1.01(i) - Certain Excluded Liabilities
Schedule 1.01(j) - Arch Product Lines
Schedule 2.08 - Guarantees
Schedule 3.04 - Contract Provisions
iii
DISTRIBUTION AGREEMENT dated as of [ ], 1999,
between XXXX CORPORATION, a Virginia corporation ("Olin"), and
ARCH CHEMICALS, INC., a Virginia corporation ("Arch").
WHEREAS, the Board of Directors of Olin has deter mined to distribute
to the holders of shares of Common Stock, par value $1 per share, of Olin (the
"Olin Common Stock") all the outstanding shares of Common Stock, par value $1
per share, of Arch (the "Arch Common Shares");
WHEREAS, it is the intention of the parties that the Distribution (as
defined below) will be a tax-free transaction pursuant to Sections 355 and
368(a)(1)(D) of the Code (as defined below), such that no gain or loss shall be
recognized by the shareholders of Olin for federal income tax purposes as a
result of the Distribution; and
WHEREAS, it is desirable to allocate and assign responsibility for
various matters affecting the activities of Arch and to set forth the principal
corporate transactions required to effect such distribution and other agreements
that will govern certain other matters following the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions
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SECTION 1.01. Definitions. As used in this Agreement, the following
------------
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Action" shall mean any claim, action, order, suit, arbitration,
inquiry, proceeding or investigation by or before any court, any governmental or
other regulatory or administrative official, agency, body or commission or any
arbitration tribunal, including any claims or contract disputes concerning any
governmental contract.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indi-
2
rectly through one or more intermediaries, controls or is controlled by or is
under common control with the person specified.
"Agent" shall mean ChaseMellon Shareholder Services, L.L.C.
"Agreement" shall mean this Distribution Agreement.
"Ancillary Agreements" shall mean all of the written agreements,
instruments, assignments or other written arrangements (other than this
Agreement) entered into in connection with the transactions contemplated hereby,
including (i) the Tax Sharing Agreement; (ii) the Chlor-Alkali Supply Agreement;
(iii) the Charleston Services Agreement; (iv) the Covenant Not to Compete
Agreement; (v) the Intellectual Property Transfer and License Agreement; (vi)
the Transition Services Agreement; (vii) the International Transition Services
Agreements; (viii) the Trade Name License Agreement; (ix) the Employee Benefits
Agreement; (x) the Information Technology Services Agreement; (xi) the Novation
Agreements; (xii) the Lake Xxxxxxx Operating Agreement; (xiii) the Charleston
Operating Agreement; (xiv) the Hydrazine Operating Agreement; (xv) the XxXxxxxx
Services Agreement; (xvi) the Sublease; and (xvii) the International Transfer
Agreements.
"Arch Assets" shall mean, collectively, all the Assets of Olin and its
Subsidiaries primarily related to the Arch Business, including: (i) all Assets
included on the Arch Balance Sheet or the accounting records supporting the Arch
Balance Sheet, and all Assets acquired between September 30, 1998 and the
Distribution Date which would have been included on the Arch Balance Sheet had
they been owned on September 30, 1998; (ii) all Assets primarily related to the
Arch Business, which are owned, leased, licensed or held by Olin or Arch or any
of their respective Affiliates on the Distribution Date; (iii) the real property
(including the buildings, fixtures and improvements located thereon) listed on
Schedule 1.01(a); (iv) all of the outstanding shares of all classes of capital
stock of the Subsidiaries of Arch to the extent owned by Olin or any of its
Affiliates; (v) the partnership, joint venture and other equity interests listed
on Schedule 1.01(b); (vi) subject to Section 2.01(c), the Assigned Contracts;
(vii) those books and records to be delivered to Arch and rights of access to
other books and records as provided in Article IV of this Agreement; (viii) the
rights of Arch under the Company Policies as provided in Article VI of this
Agreement; (ix) subject to Section 6.02(d), all rights, benefits and
3
privileges under the Xxxx Policies; (x) any pension Assets, pension funds or
other Assets expressly contemplated to be transferred, licensed or otherwise
made available to Arch pursuant to the Employee Benefits Agreement or any of the
other Ancillary Agreements; (xi) the Intellectual Property that is to be
transferred to Arch pursuant to the Intellectual Property Transfer and License
Agreement, subject to the limitations set forth in such agreement; (xii) all of
the Assets listed on Schedule 1.01(c); provided, however, that none of the
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Assets set forth on Schedule 1.01(d) shall constitute Arch Assets.
"Arch Balance Sheet" shall mean the combined balance sheet of Arch as
of September 30, 1998, as set forth in the Information Statement.
"Arch Business" shall mean the specialty chemical businesses of Olin,
which includes (i) the microelectronic chemicals business, (ii) the water
chemicals business (which includes, among other things, Water Treatment) and
(iii) the performance chemicals business, in each case, as conducted by Olin and
its Subsidiaries as of the Distribution Date and as described more fully in the
Information Statement; provided, however, that none of the businesses set forth
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on Schedule 1.01(e) shall constitute an Arch Business.
"Arch Division Employee" shall mean any individual (x) who (i) becomes
an active employee of Arch at or following the Distribution Date and (ii) at all
times prior to the Distribution Date while employed by Olin was employed solely
as a division employee in the Arch Business and never as an Xxxx Corporate
Employee or (y) who (i) is not employed by Olin or Arch at or following the
Distribution Date and (ii) at all times prior to the Distribution Date for the
period of time that such individual was employed by Olin, was employed by Olin
solely as a division employee in the Arch Business and never as an Xxxx
Corporate Employee.
"Arch Liabilities" shall mean the following Liabilities, in each case
excluding the Excluded Liabilities: (i) all the Liabilities of Arch and its
Subsidiaries under this Agreement and any of the Ancillary Agreements; (ii) all
the Liabilities (other than Liabilities in respect of (w) Environmental Matters,
(x) Litigation Matters, (y) Disability Matters and (z) Employment Matters) of
the parties hereto or their respective Subsidiaries arising after the
Distribution Date out of or in connection with or otherwise relating to the
activities, business, operations, status, management or conduct before, on or
after the Distribution Date of the Arch Business or the Arch Assets; (iii) all
the Liabilities set forth on the Arch
4
Balance Sheet (or reflected in the notes thereto), and Liabilities incurred by
Olin or Arch or any of their Affiliates between September 30, 1998 and the
Distribution Date as and to the extent they would have been included on the Arch
Balance Sheet had they been incurred or arisen on or prior to September 30,
1998; (iv) all Liabilities under the Credit Agreement; (v) all Liabilities
relating to the Litigation Matters set forth on Schedule 1.01(f); (vi) the
Liabilities set forth on Schedule 1.01(g); (vii) the Liabilities set forth on
Schedule 1.01(h); (viii) the Liabilities specifically allocated to Arch pursuant
to the Employee Benefits Agreement; (ix) the Liabilities in respect of Actions
relating to Disability Matters asserted after the Distribution Date by any
former Olin employees whose long-term disability obligations are assumed by Arch
under the Employee Benefits Agreement; and (x) the Liabilities in respect of
Actions relating to Employment Matters asserted after the Distribution Date
involving claims made by an Arch Division Employee regarding an action or
omission on the part of another Arch Division Employee.
"Arch Off-Site Disposal Matter" shall mean the disposal, arrangement
for disposal or transportation by Olin, its Subsidiaries or toll manufacturers
for any of them, prior to the Distribution Date, of Hazardous Materials of the
Arch Business at or to a landfill, dump, surface impoundment or other surface
location (excluding any location on or at the facilities or properties of Olin
or Arch) that, as between Olin and Arch, is being used exclusively by Arch, its
Subsidiaries or toll manufacturers (acting in connection with the Arch Business)
for any of them at or after the Distribution Date and had been used exclusively
in connection with the Arch Business at all times prior to the Distribution
Date.
"Arch Product Lines" shall have the meaning assigned to such term on
Schedule 1.01(j).
"Arch Properties" shall mean the land, buildings and improvements
either owned or leased by Arch or any of its Subsidiaries (including property
being used by a person who is a toll manufacturer for Arch or any of its
Subsidiaries), in each case immediately following the Distribution Date or which
is transferred to Arch or any of its Subsidiaries in connection with the
Distribution, other than the Arch Shared Sites and Arch Sites.
"Arch Shared Sites" shall mean the property owned by Arch immediately
following the Distribution Date located at (i) Lake Charles, Louisiana, (ii)
Charleston, Tennessee
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and (iii) XxXxxxxx, Alabama, in each case, operated in connection with the Arch
Business.
"Arch Sites" shall mean (i) the Doe Run plant in Xxxxxxxxxxx,
Kentucky, (ii) the B.V. Swords plant in Dublin, Ireland, (iii) the Aqua Chlor
HTH plant in Chloorkop, South Africa and (iv) the Biocides plant (including the
quarry) in Rochester, New York.
"Articles" shall mean the Amended and Restated Articles of
Incorporation of Arch, substantially in the form attached hereto as Exhibit A.
"Asset" shall mean any and all assets and properties, tangible or
intangible, real or personal, including the following: (i) cash, notes and
accounts and notes receivable (whether current or non-current); (ii)
certificates of deposit, banker's acceptances, stock, debentures, evidences of
indebtedness, certificates of interest or participation in profit-sharing
agreements, collateral-trust certificates, preorganization certificates or
subscriptions, transferable shares, investment contracts, voting-trust
certificates, fractional undivided interests in oil, gas or other mineral
rights, puts, calls, straddles, options and other securities of any kind; (iii)
intangible property rights, inventions, discoveries, know-how, United States and
foreign patents and patent applications, trade secrets, confidential
information, registered and unregistered trademarks, service marks, service
names, trade styles and trade names and associated goodwill, statutory, common
law and registered copyrights, applications for any of the foregoing; rights to
use the foregoing and other rights in, to and under the foregoing; (iv) rights
under leases, contracts, licenses, permits, distribution arrange ments, sales
and purchase agreements, other agreements and business arrangements; (v) real
estate and buildings and other improvements thereon; (vi) leasehold
improvements, fixtures, trade fixtures, machinery, equipment (including
transportation and office equipment), tools, dies and furniture; (vii) office
supplies, production supplies, spare parts, other miscellaneous supplies and
other tangible property of any kind; (viii) computer equipment and soft xxxx;
(ix) raw materials, work-in-process, finished goods, consigned goods and other
inventories; (x) prepayments or prepaid expenses; (xi) claims, causes of action,
choses in action, rights under express or implied warranties, rights of recovery
and rights of setoff of any kind; (xii) the rights to receive mail, payments on
accounts receivable and other communications; (xiii) lists of customers, records
pertaining to customers and accounts, personnel records, lists and records
pertaining to customers, suppliers and
6
agents, and books, ledgers, files and business records of every kind; (xiv)
advertising materials and other printed or written materials; (xv) goodwill as a
going concern and other intangible properties; (xvi) employee contracts,
including any rights thereunder to restrict an employee from competing in
certain respects; and (xvii) licenses and authorizations issued by any
governmental authority.
"Assigned Contract" shall mean (x) any Contract that in Olin's sole
judgment relates exclusively to the Arch Business ("Exclusive Assigned
Contracts") and (y) with respect to any Contract that relates, but does not in
Olin's sole judgment relate exclusively, to the Arch Business ("Partial Assigned
Contracts"), the portion, if any, of such Partial Assigned Contract that, in
Olin's sole judgment, relates to the Arch Business (the "Arch Portion").
"By-laws" shall mean the By-laws of Arch, substantially in the form
attached hereto as Exhibit B.
"Charleston Services Agreement" shall mean the Charleston Services
Agreement dated as of [ ], 1999, between Olin and Arch.
"Charleston Operating Agreement" shall mean the Operating Agreement -
Charleston Steam Generating Facilities dated as of [ ], 1999, between Olin
and Arch.
"Chlor-Alkali Supply Agreement" shall mean the Chlor-Alkali Supply
Agreement dated as of [ ], 1999, between Olin and Arch.
"Claims Administration" shall mean (i) the processing of claims made
under Company Policies and Xxxx Policies, including the reporting of claims and
occurrences to the appropriate insurance carriers and the collection of the
proceeds of such policies, (ii) in the case of the Arch Business, the reporting
to Olin of any losses or claims which may cause the per-occurrence deductible or
self-insured retention or limits of any Company Policy to be exceeded and (iii)
in the case of the Xxxx Business, the reporting to Arch of any loss or claim
asserted by Olin under the Xxxx Policies.
"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.
7
"Company Policies" shall mean all Policies, current or past, under
which Olin or any Subsidiary, Affiliate or predecessor of Olin is a named
insured; provided, however, that Company Policies shall not include the Xxxx
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Policies.
"Contract" shall mean a contract, agreement, lease or commitment of
Olin or any of its Subsidiaries, in each case, entered into prior to the
Distribution Date.
"Covenant Not to Compete Agreement" shall mean the Covenant Not to
Compete Agreement dated as of [ ], 1999, between Olin and Arch.
"Credit Agreement" shall mean, collectively, (i) the 364-Day Credit
Agreement dated as of [ ], 1999, among Arch, Olin, the Lenders party
thereto, Bank of America, National Trust and Savings Association, as Syndication
Agent, Wachovia Bank of Georgia, N.A., as Documentation Agent, The Chase
Manhattan Bank, as Administrative Agent and Chase Securities Inc., as Arranger
and (ii) the Five-Year Credit Agreement dated as of [ ], 1999 among Arch,
Olin, the Lenders party thereto, Bank of America, National Trust and Savings
Association, as Syndication Agent, Wachovia Bank of Georgia, N.A., as
Documentation Agent, The Chase Manhattan Bank, as Administrative Agent and Chase
Securities Inc., as Arranger.
"Disability Matters" shall mean matters relating to the eligibility,
qualification or payment of long-term disability benefits by Olin or its
Subsidiaries.
"Distribution" shall have the meaning specified in Section 3.03.
"Distribution Date" shall mean February [ ], 1999, or such other date
as may hereafter be determined by the Olin Board as the date on which the
Distribution shall be deemed effective.
"Distribution Record Date" shall mean January [ ], 1999, or such other
date as may hereafter be determined by the Olin Board as the record date for the
Distribution.
"Employee Benefits Agreement" shall mean the Employee Benefits
Allocation Agreement dated as of [ ], 1999, between Olin and Arch.
"Employment Matters" shall mean any and all claims relating to
employment discrimination matters including but not limited to claims of
wrongful discharge or claims of
8
discriminatory treatment based upon any one or combination of the factors of
sex, race, religion, sexual orientation, handicap or national origin, arising
under federal, state or local law, whether such claims arise due to common law
(whether arising in tort or contract) or by constitution, statute or ordinance.
"Environmental Laws" shall mean any and all applicable treaties, laws,
regulations, enforceable requirements, binding determinations, orders, decrees,
judgments, injunctions, permits, approvals, authorizations, licenses, variances,
permissions, notices or binding agreements issued, promulgated or entered into
at any time by any Governmental Entity, relating to the environment,
preservation or reclamation of, or damage to, natural resources, or to the
management, release, threatened release of, or exposure to, Hazardous Materials.
"Environmental Matters" shall mean (i) in connection with any
Environmental Law, any noncompliant condition existing at or prior to the
Distribution Date of records, permits, filings, notifications, facilities or
equipment, (ii) in connection with any Environmental Law, any condition of, or
substances, facilities or equipment in or under the soil, surface water or
groundwater existing at or prior to the Distribution Date which has required, is
requiring or may in the future require investigation, mitigation, remediation,
monitoring or cleanup or (iii) Third Party Exposure Claim.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Liabilities" shall mean (i) any Liabilities related to
Assets of Olin and its Subsidiaries that do not constitute Arch Assets (except
as otherwise expressly set forth herein), (ii) all Liabilities arising out of,
in connection with, or relating to (A) the Olin Sites or the Olin Retained
Shared Site Environmental Liabilities, (B) the management or conduct before, on
or after the Distribution Date of the Xxxx Business or (C) the historical and no
longer active businesses of Olin and its Subsidiaries and (iii) the Liabilities
set forth on Schedule 1.01(i).
"Form 10" shall mean the registration statement on Form 10 filed by
Arch with the Commission to effect the registration of the Arch Common Shares
under the Exchange Act, as such registration statement may be amended from time
to time.
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"Hazardous Materials" shall mean all explosive or regulated
radioactive materials, hazardous or toxic materials, substances, wastes or
chemicals, petroleum (including crude oil or any fraction thereof), asbestos or
asbestos containing materials, and all other materials or chemicals regulated
pursuant to any Environmental Law.
"Xxxx" shall mean Xxxxxx X. Xxxx Chemical Corporation.
"Xxxx Policies" shall mean all Policies issued to Xxxx.
"Hydrazine Operating Agreement" shall mean the Operating Agreement -
Hydrazine Blending Facility dated as of [ ], 1999, between Olin and Arch.
"Indemnifiable Losses" shall have the meaning specified in Section
7.01.
"Information Statement" shall mean the Information Statement dated [
], 1999, sent to the holders of shares of Olin Common Stock in connection with
the Distribution, including any amendment or supplement thereto.
"Information Technology Services Agreement" shall mean the Information
Technology Services Agreement dated as of [ ], 1999, between Olin and Arch.
"Insured Claims" shall mean those Liabilities that, individually or in
the aggregate, are covered within the terms and conditions of any Company Policy
or Xxxx Policy, whether or not subject to deductibles, uncollectability or
retrospectively-rated premium adjustments, but only to the extent that such
Liabilities are within applicable Company Policy or Xxxx Policy limits,
including aggregates.
"Intellectual Property" shall mean (i) patents (including all
reissues, divisions, continuations and extensions thereof), patent licenses and
patent applications, (ii) trademarks, trademark rights, trademark licenses,
trademark registrations, servicemarks, trademark registration applications
(filed or unfiled) and trade names and (iii) copyrights and copyright licenses.
"Intellectual Property Transfer and License Agreement" shall mean the
Intellectual Property Transfer and License Agreement dated as of [ ], 1999,
between Olin and Arch.
10
"International Transfer Agreements" shall mean those certain
International Transfer Agreements each dated as of [ ], 1999, between Olin
and Arch, and relating to Brazil, Canada, South Korea and Singapore.
"International Transition Services Agreements" shall mean the
Transition Services Agreements-International dated as of [ ], 1999, between
Olin or its Subsidiaries on the one hand, and Arch or its Subsidiaries on the
other hand.
"Lake Xxxxxxx Operating Agreement" shall mean the Operating Agreement
- Lake Xxxxxxx Caustic Terminal dated as of [ ], 1999, between Olin and
Arch.
"Liabilities" shall mean any and all debts, lia bilities and
obligations, absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising,
including those debts, liabilities and obligations arising under any law, rule,
regulation, Action, threatened Action, order or consent decree of any court, any
governmental or other regulatory or administrative agency or commission or any
award of any arbitration tribunal, and those arising under any contract,
guarantee, commitment or undertaking.
"Litigation Matters" shall mean actual, threatened or future
litigation, investigations, claims or other legal matters that may have been or
may be asserted against or otherwise adversely affect, Olin and/or Arch or the
respective Subsidiaries of either of them.
"XxXxxxxx Services Agreement" shall mean the Services Agreement for
A50 Plant at XxXxxxxx dated as of [ ], 1999, between Olin and Arch.
"Novation Agreements" shall mean the Novation Agreements dated as of [
], 1999, among Olin, Arch and the United States.
"NYSE" shall mean The New York Stock Exchange, Inc.
"Olin Board" shall mean the Board of Directors of Olin.
"Xxxx Business" shall mean the businesses of any division, Subsidiary
or investment of Olin (other than the Arch Business) managed or operated prior
to the Distribution Date by any such business entity.
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"Xxxx Corporate Employee" shall mean an individual who was at any
time, a corporate employee or on the "corporate" payroll of Olin.
"Olin Liabilities" shall mean collectively, (i) all the Liabilities of
Olin and its Subsidiaries (excluding Arch and its Subsidiaries) under this
Agreement and any of the Ancillary Agreements, (ii) Excluded Liabilities, and
(iii) all the Liabilities (whenever arising whether prior to, at or following
the Distribution Date) of the parties hereto or their respective Subsidiaries
that do not constitute Arch Liabilities.
"Olin Properties" shall mean all land, buildings and improvements
owned or leased by Olin or any of its Subsidiaries (including property being
used by a person who is a toll manufacturer for Xxxx or any of its Subsidiaries)
at any time other than the Arch Properties, Arch Shared Sites or Arch Sites.
"Xxxx Retained Shared Site Environmental Liabilities" shall mean all
Liabilities in respect of those Environmental Matters that (i) are known to Xxxx
or any of its Subsidiaries at or prior to the Distribution Date and relate to
any Arch Shared Site or (ii) in the case of the Arch Shared Site located in Lake
Charles, Louisiana relate to the plant and other assets sold to Bio-Lab, Inc.
"Xxxx Site" shall mean any site or location that is known to Xxxx or
any of its Subsidiaries at or prior to the Distribution Date to be or have been
the subject of any Environmental Matter other than the Arch Sites and Arch
Properties.
"person" shall mean any natural person, corpora tion, business trust,
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, commercial general liability policies,
fiduciary liability, environmental impairment, director and officer, health,
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.
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"Rights Plan" shall mean the Rights Agreement dated as of [ ],
1999, between Arch and ChaseMellon Shareholder Services, L.L.C., as rights
agent, substantially in the form attached hereto as Exhibit C.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sublease" shall mean the Sublease dated as of [ ], 1999,
between Xxxx and Arch relating to the office space at 000 Xxxxxxx 0, Xxxxxxx,
Xxxxxxxxxxx.
"Subsidiary" shall mean any corporation, partner ship or other entity
of which another entity (i) owns, directly or indirectly, ownership interests
sufficient to elect a majority of the Board of Directors (or persons per
forming similar functions) (irrespective of whether at the time any other class
or classes of ownership interests of such corporation, partnership or other
entity shall or might have such voting power upon the occurrence of any
contingency) or (ii) is a general partner or an entity performing similar
functions (e.g., a trustee). For all purposes hereof, the term "Subsidiary",
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when used to refer to Subsidiaries of Xxxx, shall be deemed to include Arch and
its Subsidiaries, unless the context otherwise requires.
"Tax" shall mean all Federal, state, local and foreign taxes and
assessments, including all interest, penalties and additions imposed with
respect to such amounts.
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement dated as
of [ ], 1999, between Xxxx and Arch.
"Third Party Exposure Claim" shall mean a written claim by any third
party alleging personal injury or property damage from, exposure to, or the
release, discharge or migration of, Hazardous Materials.
"Trade Name License Agreement" shall mean the Trade Name and Trademark
License Agreement dated as of [ ], 1999, between Xxxx and Arch.
"Transition Services Agreement" shall mean the Services Agreement
dated as of [ ], 1999, between Xxxx and Arch.
"Water Treatment" shall have the meaning assigned to such term in the
Covenant Not to Compete Agreement.
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ARTICLE II
Certain Transactions at or Prior to the Distribution;
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Certain Covenants
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SECTION 2.01. Certain Transactions. (a) Contribution and Transfer of
--------------------- ----------------------------
Assets. At or prior to the Distribution Date:
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(i) Xxxx shall contribute to Arch the business entities that are to
comprise the Arch Business (to the extent they are not owned by Arch or any
of its Subsidiaries).
(ii) Xxxx shall, on behalf of itself and its Subsidiaries, transfer
to Arch effective as of the Distribution Date all of Olin's and its
Subsidiaries' right, title and interest in and to the Arch Assets.
(b) Assumption and Satisfaction of Liabilities. Except as otherwise
-------------------------------------------
specifically set forth in any Ancillary Agreement, from and after the
Distribution Date, (i) Xxxx shall, and shall cause its Subsidiaries to, assume,
pay, perform and discharge all Xxxx Liabilities, and (ii) Arch shall, and shall
cause its Subsidiaries to, assume, pay, perform and discharge all Arch
Liabilities.
(c) Transfer of Agreements; Consent. (i) Xxxx hereby agrees that at
--------------------------------
or prior to the Distribution Date or as soon as reasonably practicable
thereafter, subject to the limitations set forth in this Section 2.01(c) and the
terms of the Ancillary Agreements, it will, and it will cause its Subsidiaries
(other than Arch or any of its Subsidiaries) to, assign, transfer and convey to
Arch (or to one of Arch's designated Subsidiaries) all of Olin's and each such
Sub sidiary's respective right, title and interest in and to all Exclusive
Assigned Contracts.
(ii) Subject to the provisions of this Section 2.01(c) and the terms
of the Ancillary Agreements, with respect to Partial Assigned Contracts, on or
prior to the Distribution Date or as soon as reasonably practicable thereafter
(A) Xxxx shall use reasonable efforts to cause each such Partial Assigned
Contract to be divided into separate contracts for each of the Xxxx Business and
the Arch Business or (B) if such a division is not possible, Xxxx shall cause
the Arch Portion of such Partial Assigned Contract to be assigned to Arch, or
otherwise to cause the same economic and business terms to govern with respect
to such Arch Portion (by subcontract, sublicense or otherwise).
14
(iii) Notwithstanding anything in this Agreement to the contrary,
this Agreement shall not constitute an agreement to assign any Assigned
Contract, 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
assignee (the "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 Assignee would not, in fact, receive all
such rights, the parties will cooperate with each other in any alternative
arrangement designed to provide for the Assignee the benefits of, and to permit
the Assignee to assume liabili ties under, any such Assigned Contract. The
parties hereto shall use commercially reasonable efforts to obtain required
consents to assignment of Assigned Contracts hereunder.
(d) Stock Issuance to Xxxx. At or prior to the Distribution Date,
-----------------------
Arch shall issue to Xxxx a number of newly issued, fully paid and non-assessable
Arch Common Shares, in exchange for the contribution of the Arch Business and
the Arch Assets, required to effect the Distribution.
(e) Charter; By-Laws; Rights Plan. At or prior to the Distribution
------------------------------
Date, all necessary action shall have been taken to provide for the adoption by
Arch of the Articles, the By-laws and the Rights Plan.
(f) Directors. At or prior to the Distribution Date, (i) Xxxx, as
----------
the sole shareholder of Arch, shall have taken all necessary action to elect, or
cause to be elected, to the Board of Directors of Arch the individuals
identified in the Information Statement as directors of Arch, such elections to
be effective on or prior to [ ], 1999 and (ii) once elected, the Board
of Directors of Arch shall select such other individuals to be designated as
directors of Arch as the Board of Directors of Arch shall decide.
(g) Registration and Listing. Prior to the Distribution Date:
------------------------
(i) Xxxx and Arch shall prepare, and Arch shall file with the
Commission, the Form 10, which includes or incorporates by reference the
Information Statement. Xxxx and Arch shall use reasonable efforts to cause
the Form 10 to become effective under the Exchange Act as promptly as
reasonably practicable.
15
(ii) Xxxx and Arch shall prepare, and Arch shall file and seek to make
effective, an application to permit listing of the Arch Common Shares on
the NYSE, subject to official notice of issuance.
(iii) Xxxx and Arch shall prepare, and Xxxx shall mail to the holders
of shares of Xxxx Common Stock on the Distribution Record Date, the
Information Statement, which shall set forth appropriate disclosure
concerning Arch, the Distribution and other matters.
(iv) Xxxx and Arch shall use reasonable efforts to take all such
action as may be necessary or appropriate under the state securities or
blue sky laws in connection with the transactions contemplated by this
Agreement and the Ancillary Agreements.
(v) Xxxx and Arch shall cooperate in preparing, filing with the
Commission and causing to become effective any registration statements or
amendments thereof which are necessary or appropriate in order to effect
the transactions contemplated hereby or to reflect the establishment of, or
amendments to, any employee benefit and other plans contemplated by the
Employee Benefits Agreement requiring registration under the Securities
Act.
(h) Certain Licenses and Permits. At or prior to the Distribution
-----------------------------
Date or as soon as reasonably practicable thereafter, all transferrable
licenses, permits and authorizations issued by governmental or regulatory
entities which relate to the Arch Business but which are held in the name of
Xxxx or any of its Subsidiaries (other than Arch or any of its Subsidiaries), or
any of their respective employees, officers, directors, stockholders, agents, or
otherwise, on behalf of Arch (or its Subsidiaries) shall be duly and validly
transferred by Xxxx to Arch (or its Subsidiaries).
(i) Lease Amendments. At or prior to the Distribution Date,
-----------------
amendments shall be executed to each of the leases to which Xxxx is a party and
which provide for the lease of real or personal property representing Arch
Assets or relating to the Arch Business which amendments will provide for the
substitution of Arch for Xxxx as lessee or lessor, as the case may be, and to
the extent agreeable to the other party to the lease excuse Xxxx from any
further Liabilities or responsibilities with respect thereto.
(j) Other Transactions. At or prior to the Distribution Date, Xxxx
-------------------
and Arch shall have consummated
16
those other transactions in connection with the Distribution that are
contemplated by the Information Statement and not specifically referred to in
subparagraphs (a)-(i) above.
SECTION 2.02. Financing. Each of the parties hereto shall take all
----------
actions necessary to arrange for the Credit Agreement and to cause Arch to
assume Olin's rights and obligations under the Credit Agreement immediately
prior to the Distribution Date, provided that Xxxx shall have no obligation to
guarantee or otherwise provide credit support or enhancement for the obligations
of Arch under the Credit Agreement.
SECTION 2.03. Operations in Ordinary Course. Each of Xxxx and Arch
------------------------------
agrees that, except as otherwise provided in any Ancillary Agreement or this
Agreement, during the period from the date of this Agreement through the
Distribution Date, it will, and will cause their respective Subsidiaries during
such period to, conduct its business in a manner substantially consistent with
current and past operating practices and in the ordinary course, including with
respect to the payment and administration of accounts payable and the
administration of accounts receivable, the purchase of capital Assets and
equipment and the management of inventories.
SECTION 2.04. Capital Structure. Each of Xxxx and Arch agrees to use
------------------
commercially reasonable efforts to achieve both an allocation of consolidated
indebtedness of Xxxx and a capital structure of Arch which substantially
reflects the capital structure after the Distribution of Arch set forth in the
Information Statement under the heading "Capitalization".
SECTION 2.05. Resignations. Xxxx shall cause all its directors,
-------------
officers and employees to resign, effective as of [ ], 1999, from all
positions as officers of Arch or as officers or directors of any Subsidiary of
Arch in which they serve. Xxxx shall also cause the directors of Xxxx referred
to in the Information Statement to resign as directors of Xxxx, effective as of
[ ], 1999. Arch shall cause all its employees to resign, effective as
of [ ], 1999, from all positions as officers of Xxxx or as officers or
directors of any Subsidiary of Xxxx (other than Arch or its Subsidiaries) in
which they serve.
SECTION 2.06. Further Assurances. In case at any time after the
-------------------
Distribution Date any further action is reasonably necessary or desirable to
carry out the purposes of this Agreement and the Ancillary Agreements, the
officers of each party to this Agreement shall take all such
17
necessary action. Without limiting the foregoing, Xxxx and Arch shall use
commercially reasonable efforts to obtain all consents and approvals, to enter
into all amendatory 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 all applicable governmental
and regulatory filings and novations.
SECTION 2.07. No Representations or Warranties. Each of the parties
---------------------------------
hereto understands and agrees that, except as otherwise expressly provided
herein or in any Ancillary Agreement, no party hereto is, in this Agreement, in
any Ancillary Agreement or in any other agreement or document contemplated by
this Agreement or otherwise, making any representation or warranty whatsoever,
including as to title, value or legal sufficiency. It is also agreed and
understood that 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 2.06)
the party to which such Assets are to be transferred hereunder shall bear the
economic and legal risk that any conveyances of such Assets shall prove to be
insufficient or that such party's or any of its Subsidiaries' title to any such
Assets shall be other than good and marketable and free from encumbrances.
Similarly, each party hereto understands and agrees that no party hereto is, in
this Agreement, in any Ancillary Agreement or in any other agreement or document
contemplated by this Agreement or otherwise, representing or warranting in any
way that the obtaining of any consents or approvals, the execution and delivery
of any amendatory 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 and understood 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 2.08. Elimination of Guarantees. Except as otherwise
--------------------------
specified in any Ancillary Agreement, Xxxx and Arch shall use their commercially
reasonable efforts to have, on or prior to the Distribution Date, or as soon as
practicable thereafter, Xxxx and each of its Subsidiaries (other than Arch or
its Subsidiaries) removed as guarantor of or obligor for any Arch Liability or
Liabilities, including in respect of those guarantees set forth on Schedule
2.08. To the extent that Xxxx or any of its Subsidiaries (other than Arch or
its Subsidiaries) cannot be removed as guarantor of or obligor for any such Arch
18
Liability or Liabilities, Arch agrees that, notwithstanding any contrary
provision contained in any Novation Agreement referred to in Schedule 2.08,
until such Arch Liability or Liabilities shall have been discharged in full,
Arch will take no action, and will not permit any of its Subsidiaries to take
any action, which will have the effect of increasing the contingent liability or
exposure of Xxxx or any of its Subsidiaries (other than Arch or its
Subsidiaries) with respect to such Arch Liability or Liabilities without Olin's
prior written consent; provided, however, that with respect to any guarantee
arising in connection with any Novation Agreement referred to in Schedule 2.08,
Arch may modify (but not extend) the U.S. Government contracts relating to such
Novation Agreements without Olin's prior written consent provided such
modification is made in good faith and is commercially reasonable and does not
unreasonably increase Olin's contingent liability or risk with respect thereto
under such Novation Agreement taking into account the facts and circumstances at
the time of the modification.
SECTION 2.09 Intercompany Accounts. All intercompany receivables,
---------------------
payables and loans existing immediately prior to the Distribution between Xxxx
and its Subsidiaries (other than Arch or its Subsidiaries), on the one hand, and
Arch and its Subsidiaries, on the other hand, shall be deemed canceled, settled
and discharged immediately prior to the Distribution.
SECTION 2.10. Transfers Not Effected Prior to Distribution Date;
--------------------------------------------------
Transfers Deemed Effective as of Distribution Date. To the extent that any
---------------------------------------------------
transfers contemplated by this Article II shall not have been consummated at 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 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
19
requested by the party to whom such Asset is to be trans ferred, 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 responsibili ties incident thereto, which such party is entitled
to acquire or required to assume pursuant to the terms of this Agreement.
SECTION 2.11. Ancillary Agreements. At or prior to the Distribution
---------------------
Date, each of Xxxx and Arch shall enter into, and/or (where applicable) shall
cause their respective Subsidiaries 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.
ARTICLE III
The Distribution
----------------
SECTION 3.01. Distribution Record Date and Distribution Date.
-----------------------------------------------
Subject to the satisfaction of the conditions set forth in Section 7.01(a), the
Xxxx Board shall, in its sole discretion, establish the Distribution Record Date
and the Distribution Date and any appropriate procedures in connection with the
Distribution.
SECTION 3.02. The Agent. Prior to the Distribution Date, Xxxx shall
----------
enter into an agreement with the Agent providing for, among other things, the
Distribution in accordance with this Article III.
SECTION 3.03. The Distribution. On the Distribution Date, Xxxx shall
-----------------
deliver to the Agent, for the benefit of holders of record of shares of Xxxx
Common Stock, one or more stock certificates representing all of the outstanding
Arch Common Shares issued to Xxxx by Arch pursuant to Section 2.01(d), and shall
instruct the Agent to distribute through direct registration (i.e., book-entry
----
transfer), on or as soon as practicable following the
20
Distribution Date, such Arch Common Shares to holders of record of shares of
Xxxx Common Stock on the Distribution Record Date on the basis of one Arch
Common Share for every two shares of Xxxx Common Stock (the "Distribution"). The
Distribution shall be effective on the Distribution Date. Xxxx and Arch shall
provide the Agent with all information and documents necessary to effect the
direct registration of Arch Common Shares.
SECTION 3.04. Contract Provisions. Following the Distribution Date,
--------------------
Arch agrees to be bound by certain provisions of the Contracts set forth in
Schedule 3.04 to the extent such provisions are applicable to Arch.
ARTICLE IV
Access to Information
---------------------
SECTION 4.01. Provision of Corporate Records. (a) After the
-------------------------------
Distribution Date, upon the prior written request by Arch for specific and
identified agreements, documents, books, records or files, including computer
files, microfiche, tape recordings and photographs (collectively, "Records"),
relating to or affecting Arch, Xxxx shall arrange, as soon as reasonably
practicable following the receipt of such request, for the provision of
appropriate copies of such Records (or the originals thereof if the party making
the request has a reasonable need for such originals) in the possession of any
member of Xxxx or any of its Subsidiaries, but only to the extent such items are
not already in the possession of the requesting party.
(b) After the Distribution Date, upon the prior written request by
Xxxx for specific and identified Records relating to or affecting Xxxx, Arch
shall arrange, as soon as reasonably practicable following the receipt of such
request, for the provision of appropriate copies of such Records (or the
originals thereof if the party making the request has a reasonable need for such
originals) in the possession of any member of Arch or any of its Subsidiaries,
but only to the extent such items are not already in the possession of the
requesting party.
SECTION 4.02. Access to Information. From and after the Distribution
----------------------
Date, Xxxx and Arch shall afford to the other and its authorized accountants,
counsel and other designated representatives (including governmental
representatives and auditors in connection with governmental claims or audits)
reasonable access during normal business hours, subject to appropriate
restrictions for classified,
21
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.
SECTION 4.03. Reimbursement; Records Retention. (a) Except to the
---------------------------------
extent otherwise contemplated by any Ancillary Agreement, a party providing
Records, access to information or witness services, as the case may be, 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 out-of-
pocket amounts, relating to supplies, disbursements and other out-of-pocket
expenses as may be reasonably incurred in providing such Records, access to
information or witness services, as the case may be.
(b) The parties hereto shall comply with such document retention
policies as shall be established and agreed to in writing by their respective
authorized officers on or prior to the Distribution Date in respect of Records
and related matters.
SECTION 4.04. Witness Services. At all times from and after the
-----------------
Distribution Date, each of Xxxx and Arch shall use commercially reasonable
efforts to make available to each other, upon 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 may from time
to time be involved and (ii) there is no conflict in the Action between the
requesting party and itself. The employing party agrees that such witness shall
be made available to the requesting party upon reasonable notice to the same
extent that such employing party would have made such witness available if the
Distribution had not occurred.
SECTION 4.05. Confidentiality. Each of Xxxx and its Subsidiaries and
----------------
Arch and its Subsidiaries shall not use or permit the use of (without the prior
written consent of the other) and shall hold, and shall cause its consultants
and advisors to hold, in strict confidence, all information concerning the other
parties in its possession, its custody or under its control (except to the
extent that (A) such information has been in the public domain or becomes part
of the public domain through no fault of such party, (B) such information has
been later lawfully acquired from other sources by such party without an
obligation of confidence, (C) this Agreement or any other Ancillary Agreement or
any other agreement entered into pursuant hereto permits the use
22
or disclosure of such information, (D) such information is requested by the
Commission (i) to be provided supplementally to the Commission or (ii) to be
provided in any document filed with the Commission, provided, that in the case
--------
of this clause (ii), the party providing such information to the Commission
shall first consult with the other party prior to, but shall not be prohibited
from making, such disclosure or (E) such information is independently developed
by such party without reference to such information) to the extent such
information (x) relates to the period up to the Distribution Date, (y) relates
to any Ancillary Agreement or (z) is obtained in the course of performing
services for the other party pursuant to any Ancillary Agreement, 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 and
attorneys, 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. To the extent that a party
hereto is compelled by judicial or administrative process to disclose such
information under circumstances in which any evidentiary privilege would be
available, such party agrees to assert such privilege in good faith prior to
making such disclosure. Each party hereto agrees to consult with the other party
in connection with any such judicial or administrative process, including in
determining whether any privilege is available, and further agrees to allow such
party and its counsel to participate in any hearing or other proceeding
(including any appeal of an initial order to disclose) in respect of such
disclosure and assertion of privilege. Each of Xxxx and Arch intends that the
transactions contemplated hereby and by the Ancillary Agreements and any
transfer of information in connection therewith shall not operate as a waiver of
any potentially applicable privilege.
ARTICLE V
Dispute Resolution
------------------
SECTION 5.01. Dispute Resolution. (a) 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,
including any claim based on contract, tort, statute or constitution
(collectively, "Agreement Disputes"), the General Counsels (or their designees)
of the
23
relevant parties shall negotiate, commencing within 30 days of the occurrence of
such Agreement Dispute, in good faith for a reasonable period of time to settle
such Agreement Dispute.
(b) If after such reasonable period such General Counsels (or their
designees) are unable to settle such Agreement Dispute (and in any event after
60 days have elapsed from the time the relevant parties began such
negotiations), such Agreement Dispute shall be determined, at the request of any
relevant party, by arbitration conducted in New York City, before and in
accordance with the then-existing Rules for Commercial Arbitration of the
American Arbitration Association (the "Rules"), and any judgment or award
rendered by the arbitrator shall be final, binding and nonappealable (except
upon grounds specified in 9 U.S.C. (S)10(a) as in effect on the date hereof),
and judg ment may be entered by any state or Federal court having jurisdiction
thereof in accordance with Section 8.21 hereof. Unless the arbitrator otherwise
determines, the pre-trial discovery of the then-existing Federal Rules of Civil
Procedure and the then-existing Rules 46 and 47 of the Civil Rules for the
United States District Court for the Southern District of New York shall apply
to any arbitration here under. Any controversy concerning whether an Agreement
Dispute is an arbitrable Agreement Dispute, whether arbitra tion 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. The arbitrator shall be a retired or former judge of any United
States District Court or Court of Appeals or such other qualified person as the
relevant parties may agree to designate, provided such individual has had
--------
substantial professional experience with regard to settling commercial disputes.
The parties intend that the provisions to arbitrate set forth herein be valid,
enforce able and irrevocable. The designation of a situs or a governing law
for this Agreement or the arbitration shall not be deemed an election to
preclude application of the Federal Arbitration Act, if it would be applicable.
In his award the arbitrator shall allocate, in his discretion, among the parties
to the arbitration all costs of the arbitration, including the fees and expenses
of the arbitrator and reasonable attorneys' fees, costs and expert witness
expenses of the parties. The undersigned agree to comply with any award made in
any such arbitration pro ceedings that has become final in accordance with the
Rules and agree to the entry of a judgment in any jurisdiction upon any award
rendered in such proceedings becoming final under the Rules. The arbitrator
shall be entitled, if appropriate, to award any remedy in such proceedings,
24
including monetary damages, specific performance and all other forms of legal
and equitable relief; provided, how ever, the arbitrator shall not be entitled
-------- --------
to award punitive damages.
ARTICLE VI
Insurance
---------
SECTION 6.01. Coverage. (a) As of the Distribution Date, coverage of
--------
Arch and its Subsidiaries shall cease under current Company Policies, except as
provided in this Article VI. From and after the Distribution Date, Arch and its
Subsidiaries will be responsible for obtaining and maintaining insurance
coverages for their own account. To the extent that Arch bears or incurs Arch
Liabilities arising from the activities of Xxxx or its Subsidiaries prior to the
Distribution Date, and which Arch Liabilities are covered by Company Policies,
it is the intention of the parties that, without increasing or expanding the
risks assumed by the insurer, Arch will have the benefit of such insurance
coverage after the Distribution Date. No assignment pursuant to Section 6.02 is
intended to increase the liability of any insurer under a Company Policy, and
Xxxx shall be deemed to assign only such coverage as would have been available
to Xxxx in respect of the Arch Business if the Distribution had not occurred.
(b) To the extent that Xxxx bears or incurs Xxxx Liabilities arising
from the activities of Xxxx prior to the Distribution Date, and which Xxxx
Liabilities are covered by Xxxx Policies, it is the intention of the parties
that, without increasing or expanding the risks assumed by the insurer, Xxxx
will have the benefit of such insurance coverage after the Distribution Date.
No assignment pursuant to Section 6.02 is intended to increase the liability of
any insurer under a Xxxx Policy, and Arch shall be deemed to assign only such
coverage as would have been available in respect of the activities of Xxxx if
the Distribution had not occurred.
SECTION 6.02. Claims Based Upon Pre-Distribution Date Injury; Waiver.
-------------------------------------------------------
(a) If (i) prior to the Distribution Date, any person has asserted a claim or
instituted a suit, action or proceeding against Xxxx or Arch, or (ii) subsequent
to the Distribution Date, any person shall assert a claim or institute a suit,
action or proceeding against Arch or any of its Subsidiaries, in either case,
with respect to any injury, loss, liability, damage or expense incurred or
claimed to have been incurred prior to the Distribution Date in the course of or
in connection with
25
the conduct of the Arch Business and which injury, loss, liability, damage or
expense may constitute an insured or insurable occurrence under one or more
Company Policies, Xxxx shall be deemed, without need of further documentation,
to assign to Arch or any of its Subsidiaries an interest in the relevant Company
Policies (unless such assignment would render Olin's coverage for such
occurrence thereunder void), subject to any limitations or obligations of Arch
contemplated by this Article VI, if necessary, and then only to the extent
necessary, to convey to Arch or any of its Subsidiaries rights of indemnity and
the right to be defended by or at the expense of the insurer, with respect to
any such claim, suit, action, proceeding, injury, loss, liability, damage or
expense; provided, however, that, with respect to Company Policies for which
-------- -------
Arch has payment obligations pursuant to Section 6.05 or otherwise, Arch and its
Subsidiaries shall only have the rights set forth under this Section 6.02(a)
with respect to such Company Policies if such payment obligations have been
satisfied by Arch.
(b) If (i) prior to the Distribution Date, any person has asserted a
claim or instituted a suit, action or proceeding against Xxxx, or (ii)
subsequent to the Distribution Date, any person shall assert a claim or
institute a suit, action or proceeding against Xxxx, in either case, with
respect to any injury, loss, liability, damage or expense incurred or claimed to
have been incurred prior to the Distribution Date in the course of or in
connection with the activities of Xxxx and which injury, loss, liability, damage
or expense may constitute an insured or insurable occurrence under one or more
Xxxx Policies, Arch shall be deemed, without need or further documentation, to
assign to Xxxx an interest in the relevant Xxxx Policies (unless such assignment
would render Arch's coverage for such occurrence thereunder void), subject to
any limitations or obligations of Xxxx contemplated by this Article VI, if
necessary, and then only to the extent necessary, to convey to Xxxx rights of
indemnity and the right to be defended by or at the expense of the insurer, with
respect to any such claim, suit, action, proceeding, injury, loss, liability,
damage or expense; provided, however, that, with respect to Xxxx Policies for
-------- -------
which Xxxx has payment obligations pursuant to Section 6.05 or otherwise, Xxxx
shall only have the rights set forth under this Section 6.02(b) with respect to
such Xxxx Policies if such payment obligations have been satisfied by Xxxx.
(c) Xxxx shall at all times retain the Company Policies, together
with the rights, benefits and privileges thereunder, including the right to
invade or exhaust any Company Policy by submission of claims, settlement or
26
otherwise; provided, that the retention of the Company Policies by Xxxx is not
--------
intended to limit, inhibit or preclude any right granted pursuant to Section
6.02(a), and provided further that Section 6.02(a) is not intended to limit,
----------------
inhibit or preclude any rights, benefits or privileges Xxxx may have under
Company Policies. Arch hereby specifically agrees that Xxxx, in its sole
discretion, may at any time and without the consent of Arch or any of its
Subsidiaries, grant a release, given in good faith, to any insurance carrier
absolving such carrier from further liability to Arch pursuant to any Company
Policy, only in respect of Litigated Arch Liabilities (as defined below). Xxxx
shall notify Arch of the terms and conditions of any such release prior to its
execution. Any release by Xxxx of coverage obligations under any Company Policy
in respect of Arch Liabilities other than or in addition to those in respect of
Litigated Arch Liabilities shall require the written consent of Arch, which
consent shall not be unreasonably withheld.
(d) Arch shall at all times retain the Xxxx Policies, together with
the rights, benefits and privileges thereunder, including the right to invade or
exhaust any Xxxx Policy by submission of claims, settlement or otherwise;
provided, that the retention of the Xxxx Policies by Arch is not intended to
--------
limit, inhibit or preclude any right granted pursuant to Section 6.02(b), and
provided further that Section 6.02(b) is not intended to limit, inhibit or
----------------
preclude any rights, benefits or privileges that Arch may have under the Xxxx
Policies. Arch hereby agrees that Xxxx, in its sole discretion, may at any time
and without the consent of Arch grant a release, given in good faith, to any
insurance carrier absolving such carrier from further liability to Arch pursuant
to any Xxxx Policy only in respect of Litigated Arch Liabilities. Xxxx shall
notify Arch of the terms and conditions of any such release prior to its
execution. Any release by Arch of coverage obligations under any Xxxx Policy in
respect of Xxxx Liabilities shall require the written consent of Xxxx, which
consent shall not be unreasonably withheld.
SECTION 6.03. Administration. Except as provided in the third
---------------
sentence of this Section 6.03, from and after the Distribution Date, Xxxx shall
be responsible for Claims Administration with respect to Xxxx Liabilities and
Arch or a Subsidiary of Arch, as appropriate, shall be responsible for Claims
Administration with respect to Arch Liabilities. Except as provided in the third
sentence of this Section 6.03, Xxxx hereby appoints Arch as its agent and
attorney in fact to perform Claims Administration under Company Policies with
respect to claims against Xxxx which
27
are or may give rise to Arch Liabilities, and Arch hereby appoints Xxxx as its
agent and attorney in fact to perform Claims Administration under Xxxx Policies
with respect to claims against Arch or Xxxx which are or may give rise to Xxxx
Liabilities. Notwithstanding the foregoing, Xxxx shall be responsible for Claims
Administration with respect to Arch Liabilities with respect to which Xxxx is
engaged in coverage litigation, as of the Distribution Date, related to
environmental remediation, and with respect to Arch Liabilities related to
environmental remediation which become known after the Distribution Date, and
which Xxxx shall add to said coverage litigation, if then still pending
("Litigated Arch Liabilities").
SECTION 6.04. Insurance Proceeds. Proceeds received with respect to
-------------------
claims made under Company Policies or Xxxx Policies shall be paid to Xxxx with
respect to Xxxx Liabilities and to Arch with respect to Arch Liabilities;
provided, that proceeds received with respect to Litigated Arch Liabilities
--------
shall be allocated between Xxxx and Arch pro rata based on the remediation
related amounts actually expended by the parties in connection therewith.
SECTION 6.05. Retrospectively Rated Policies. From and after the
-------------------------------
Distribution Date, any additional premiums payable or rebates of premiums
previously paid in respect of any retrospectively rated Company Policy shall be
paid or collected by Xxxx. Xxxx shall be reimbursed by Arch, or shall
distribute to Arch, amounts equal to the portion of any such additional premium
or rebate, as applicable, which relates to the Arch Business. From and after
the Distribution Date, any additional premiums payable or rebates of premiums
previously paid in respect of any retrospectively rated Xxxx Policy shall be
paid or collected by Arch. Arch shall be reimbursed by Xxxx, or shall
distribute to Xxxx, amounts equal to the portion of any such additional premium
or rebate, as applicable, which do not relate to the Arch Business.
SECTION 6.06. 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 Section 6.06 shall be construed to limit or otherwise alter in any way the
obliga tions of the parties to this Agreement, including those created by this
Agreement, by operation of law or otherwise.
SECTION 6.07. Cooperation. The parties hereto agree to use their
------------
commercially reasonable efforts to
28
cooperate with respect to the various insurance matters contemplated by this
Agreement. If the product aggregates in the Company Policies or the Xxxx
Policies become exhausted, the parties agree to share the losses which otherwise
would have been reimbursed by such Policies, but for the exhaustion of such
product aggregates, on terms and in proportions that are equitable under the
circumstances.
ARTICLE VII
Indemnification
---------------
SECTION 7.01. Indemnification (a) Arch shall indemnify, defend and
---------------
hold harmless Xxxx, each Affiliate of Xxxx and each of their respective
directors, officers, employees and agents, and each of the heirs, successors and
assigns of any of the foregoing (the "Xxxx Indemnitees") from and against all
claims, damages, losses, liabilities, fines, penalties, costs and expenses
(including without limitation reasonable attorneys' fees and disbursements)
(collectively, "Indemnifiable Losses") of the Xxxx Indemnitees arising out of,
associated with, or resulting from the Arch Liabilities (including without
limitation the failure or alleged failure by Arch to pay, perform or otherwise
discharge such Arch Liabilities in accordance with their terms), whether such
Indemnifiable Losses relate to or arise from events, occurrences, actions,
omissions, facts or circumstances occurring or existing, or whether such
Indemnifiable Losses are asserted, before, on or after the Distribution Date.
(b) Xxxx shall indemnify, defend and hold harmless Arch, each
Affiliate of Arch and each of their respective directors, officers, employees
and agents, and each of the heirs, successors and assigns of any of the
foregoing (the "Arch Indemnitees") from and against all Indemnifiable Losses of
the Arch Indemnitees arising out of, associated with, or resulting from the Xxxx
Liabilities (including without limitation the failure or alleged failure by Xxxx
to pay, perform or otherwise discharge such Xxxx Liabilities in accordance with
their terms), whether such Indemnifiable Losses relate to or arise from events,
occurrences, actions, omissions, facts or circumstances occurring or existing,
or whether such Indemnifiable Losses are asserted, before, on or after the
Distribution Date.
SECTION 7.02. Insurance Matters. The amount which any indemnifying
-----------------
party (an "Indemnifying Party") is or may be required to pay to any indemnified
party (an
29
"Indemnified Party") under this Article VII shall be reduced (including without
limitation retroactively) by any proceeds of insurance policies or other amounts
actually recovered by or on behalf of such Indemnified Party in reduction of the
related Indemnifiable Loss. If an Indemnified Party shall have received the
payment (an "Indemnity Payment") required by this Agreement from an Indemnifying
Party in respect of any Indemnifiable Loss and shall subsequently actually
receive proceeds of insurance policies or other amounts in respect of such
Indemnifiable Loss, then such Indemnified Party shall pay to such Indemnifying
Party a sum equal to the amount actually received (up to but not in excess of
the amount of any Indemnity Payment made hereunder). An insurer who would
otherwise be obligated to pay any claim shall not be relieved of the
responsibility with respect thereto, or, solely by virtue of the indemnification
provisions of this Article VII, or have any subrogation rights with respect
thereto, it being expressly understood and agreed that no insurer or any other
third party shall be entitled to a benefit they would not otherwise be entitled
to receive in the absence of the indemnification provisions hereof by virtue of
the indemnification provisions hereof.
SECTION 7.03. Procedures for Indemnification. (a) Pending Claims.
------------------------------ ---------------
(i) On the Distribution Date, Arch shall assume (or shall cause one of its
wholly owned Subsidiaries to assume) (A) the prosecution of all claims of Arch
and (B) the defense against all Third Party Claims, in each case, that are
listed on Schedule 1.01(f).
(ii) Arch shall be responsible for attorneys' fees, disbursements and
other costs related to the claims set forth in Section 7.03(a)(i) only as and to
the extent that such costs are accrued or incurred subsequent to the
Distribution Date, and shall not be responsible for any of such costs to the
extent accrued or incurred on or prior to the Distribution Date.
(b) Third Party Claims. (i) If a claim or demand is made against an
------------------
Indemnified Party by any person who is not a party to this Agreement (a "Third
Party Claim") as to which such Indemnified Party is entitled to indemnification
pursuant to this Agreement, such Indemnified Party shall notify 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 Indemnified
Party 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
30
Indemnifying Party shall not be liable for any expenses incurred during the
period in which the Indemnified Party failed to give such notice). Thereafter,
the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in
any event within 15 business days) after the Indemnified Party's receipt
thereof, copies of all notices and documents (including court papers) received
by the Indemnified Party relating to the Third Party Claim.
(ii) If a Third Party Claim is made against an Indemnified Party, 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
Indemnified Party therefor, to assume the defense thereof with counsel selected
by the Indemnifying Party; provided, however, that such counsel is not
-------- -------
reasonably objected to by the Indemnified Party. Should the Indemnifying Party
so elect to assume the defense of a Third Party Claim, the Indemnifying Party
shall not be liable to the Indemnified Party for legal or other expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof. If the Indemnifying Party assumes such defense, the Indemnified Party
shall have the right to participate in the defense thereof and to employ
counsel, 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 and
expenses of counsel employed by the Indemnified Party 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 Indemnified Party 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, the Indemnified Party
shall cooperate with the Indemnifying Party in the defense or prosecution
thereof.
(iii) If the Indemnifying Party acknowledges in writing its
obligation to indemnify the Indemnified Party for a Third Party Claim, then in
no event will the Indemnified Party 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 Indemnified Party
-------- -------
shall have the right to settle, compromise or discharge such Third Party Claim
without the consent of the Indemnifying Party if the Indemnified Party 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
31
in writing its obligation to indemnify the Indemnified Party for a Third Party
Claim, the Indemnified Party 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 Indemnified
Party completely in connection with such Third Party Claim and that would not
otherwise adversely affect the Indemnified Party; provided, however, that the
-------- -------
Indemnified Party may refuse to agree to any such settlement, compromise or
discharge if the Indemnified Party agrees that the Indemnifying Party's
indemnification obligation with respect to such Third Party Claim shall not
exceed the amount that would be required to be paid by or on behalf of the
Indemnifying Party in connection with such settlement, compromise or discharge.
(iv) 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 Indemnified Party 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 Indemnified Party which the Indemnified Party 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.
SECTION 7.04 Indemnification Payments. Indemni fication required by
------------------------
this Agreement, 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
Indemnifiable Loss is incurred.
SECTION 7.05 Other Adjustments. (a) The amount of any
-----------------
indemnification obligation with respect to any Third Party Claim ("Indemnity
Obligation") shall be (x) increased to take into account any net tax cost
actually incurred by the Indemnified Party arising from any payments received
from the Indemnifying Party (grossed up for such increase) and (y) reduced to
take into account any net tax benefit actually realized by the Indemnified Party
arising from the incurrence or payment of any such Indemnity Obligation. In
computing the amount of such tax cost or tax benefit, the Indemnified Party
shall be deemed to recognize all other items of income, gain, loss, deduction or
credit before recognizing any item arising from the receipt of any payment
32
with respect to an Indemnity Obligation or the incurrence or payment of any
Indemnity Obligation.
(b) In addition to any adjustments required pursuant to Section 7.02
hereof or clause (a) of this Section 7.05, and subject to such clause (a), if
the amount of any Indemnity Obligation shall, at any time subsequent to the
payment required by this Agreement, be reduced by recovery, settlement or
otherwise, the amount of such reduction, less any expenses incurred in
connection therewith, shall promptly be repaid by the Indemnified Party to the
Indemnifying Party up to the aggregate amount of any payments received from such
Indemnifying Party pursuant to this Agreement in respect of such Indemnity
Obligation.
SECTION 7.06. Consolidation, Merger, Transfer, or Lease. Neither
-----------------------------------------
Party shall consolidate with or merge into any other person, or convey, transfer
or lease its properties and assets substantially as an entirety to any other
person unless:
(a) The person formed by such consolidation or into which said Party
is merged or the person which acquires by conveyance or transfer, or which
leases the properties and assets of said Party substantially as an entirely
shall (i) be a corporation, (ii) be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and (iii) expressly assume, by an instrument satisfactory to the other
Party, each and every obligation of said Party to be performed or observed
hereunder; and
(b) Said Party shall have delivered to the other Party a Certificate
executed by its Chief Executive Officer and Chief Financial Officer stating that
such consolidation, merger, conveyance, transfer or lease complies with this
Section 7.06 and that all conditions precedent herein relating to such
transaction have been complied with.
SECTION 7.07. Survival. All the indemnity obligations under this
--------
Article VII shall survive indefinitely.
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. Conditions to Obligations. (a) The obligations of Xxxx
--------------------------
to consummate the Distribution are subject to the satisfaction (or waiver by the
Xxxx Board) of
33
each of the following conditions:
(i) all material regulatory approvals necessary to consummate the
Distribution shall have been received and be in full force and effect;
(ii) the transactions contemplated by Article II shall have been
consummated in all material respects, to the extent required to be
consummated prior to the Distribution;
(iii) the Form 10 shall have become effective under the Exchange Act,
and no stop order or similar Commission proceeding shall be in effect with
respect to the Form 10, and no proceeding for that purpose shall have been
instituted by the Commission;
(iv) Arch's Board of Directors, as described in the Information
Statement, shall have been elected by Xxxx, as sole shareowner of Arch, and
each of the Articles, the By-laws and the Rights Plan shall be in effect;
(v) the Arch Common Shares shall have been accepted for listing on
the NYSE, subject to official notice of issuance;
(vi) the Xxxx Board shall have received an opinion of counsel
satisfactory in form and substance to the Xxxx Board in its sole discretion
to the effect that the Distribution will not be taxable to the holders of
Xxxx Common Stock pursuant to Sections 355 and 368(a)(1)(D) of the Code;
(vii) no order, preliminary or permanent injunction or decree issued
by any court or agency of competent jurisdiction or other legal restraint
or prohibition preventing consummation of the Distribution shall be in
effect and no other event shall have occurred or failed to occur that
prevents consummation of the Distribution;
(viii) the Xxxx Board shall have formally approved the Distribution;
and
(ix) each of the Ancillary Agreements shall have been executed and
delivered by the applicable parties.
(b) The foregoing conditions are for the sole benefit of Xxxx and
shall not give rise to any duty on the part of Xxxx or the Xxxx Board to waive
or not waive such
34
conditions or in any way limit Olin's right to terminate this Agreement as set
forth in Section 8.13 or alter the consequences of any such termination from
those specified in such Section. Any determination made by the Xxxx Board prior
to the Distribution Date concerning the satisfaction or waiver of any or all of
the conditions set forth in this Section 8.01 shall be conclusive.
SECTION 8.02. Exhibits and Schedules; Interpretation. The headings
---------------------------------------
contained in this Agreement or in any Exhibit or Schedule hereto and in the
table of contents to this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. All
Exhibits and Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as is set forth in full
herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise
defined therein, shall have the meanings as defined in this Agreement.
References to an "Exhibit" or to a "Schedule" are, unless otherwise specified,
to one of the Exhibits or Schedules attached to this Agreement, and references
to a "Section" or an "Article" are, unless otherwise specified, to one of the
Sections or Articles of this Agreement. For all purposes hereof, the terms
"including", "includes" or "include" shall be deemed followed by the words
"without limitation". In the event of any inconsistency between this Agreement
and any Schedule hereto, the Schedule shall prevail. Notwith standing 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 8.03. Entire Agreement. 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.
SECTION 8.04. Ancillary Agreements. This Agree ment is not intended
---------------------
to address, and should not be inter preted to address, the matters specifically
and expressly covered by the Ancillary Agreements.
SECTION 8.05. 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
35
signed by each of the parties and delivered to the other parties.
SECTION 8.06. Survival of Agreements. Except as otherwise expressly
-----------------------
provided in this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 8.07. 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, deliv ery and
implementation of this Agreement and any Ancillary Agreement, the Information
Statement and the Distribution and the consummation of the transactions
contemplated thereby shall be charged to and paid by Xxxx. 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.
SECTION 8.08. Notices. All notices and other communications
--------
hereunder shall be in writing and hand deliv ered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic mes
sage 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:
To Xxxx Corporation:
000 Xxxxxxx 0
X.X. Xxx 0000
Xxxxxxx, XX 00000
Attn: Corporate Secretary
To Arch Chemicals, Inc.:
000 Xxxxxxx 0
Xxxxxxx, XX 00000
Attn: Corporate Secretary
SECTION 8.09. Waivers. The failure of either party to require strict
--------
performance by the 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.
36
SECTION 8.10. Amendments. Subject to the terms of Section 8.13
-----------
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by the parties.
SECTION 8.11. Assignment. Other than in connection with a
-----------
transaction contemplated by Section 7.06, 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, and any attempt to assign any
rights or obligations arising under this Agreement without such consent shall be
void.
SECTION 8.12. Successors and Assigns. The provi sions of 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 8.13. Termination. This Agreement may be terminated and the
------------
Distribution may be amended, modified or abandoned at any time prior to the
Distribution Date by and in the sole discretion of Xxxx without the approval of
Arch or the shareholders of Xxxx. 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 Date, this Agreement may not be terminated except by an
agreement in writing signed by the parties.
SECTION 8.14. 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 after the Distribution.
SECTION 8.15. Third Party Beneficiaries. This Agreement is solely
--------------------------
for the benefit of the parties hereto 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 8.16. Attorney Fees. Except as contem plated by the third to
--------------
the last sentence of Article V hereof, a party in breach of this Agreement
shall, on demand, indemnify and hold harmless the other parties hereto for and
against all out-of-pocket expenses, including legal fees, incurred by such other
party by reason of the enforcement and protection of its rights under this
Agreement. The payment of such expenses is in addition to
37
any other relief to which such other party may be entitled hereunder or
otherwise.
SECTION 8.17. Title and Headings. Titles and headings to sections
-------------------
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
SECTION 8.18. 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 8.19. Specific Performance. Each of the parties hereto
---------------------
acknowledges that there is no adequate remedy at law for failure by such parties
to comply with the provi sions of this Agreement and that such failure would
cause immediate harm that would not be adequately compensable in damages, and
therefore agree that their agreements contained herein may be specifically
enforced without the requirement of posting a bond or other security, in
addition to all other remedies available to the parties hereto under this
Agreement.
SECTION 8.20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
--------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA APPLICABLE
TO CONTRACTS EXECUTED THEREIN AND TO BE PERFORMED THEREIN.
SECTION 8.21. Consent to Jurisdiction. Without limiting the
------------------------
provisions of Article V hereof, each of the parties irrevocably submits to the
exclusive personal jurisdiction and venue of (a) the Circuit Court of Henrico
County, Commonwealth of Virginia, and (b) the United States District Court for
the Eastern District of Virginia (Richmond Division), for the purposes of any
suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each of the parties agrees to commence any
action, suit or proceeding relating hereto either in the United States District
Court for the Eastern District of Virginia (Richmond Division) or if such suit,
action or other proceeding may not be brought in such court for jurisdictional
reasons, in the Circuit Court of the Henrico County, Commonwealth of Virginia.
Each of the parties further agrees that service of any process, summons, notice
or document by U.S. registered mail to such party's respective address set forth
above shall be effective service of process for any action, suit or proceeding
in Virginia with respect to any matters to which it has submitted to
jurisdiction in this Section 8.21. Each of the parties irrevocably and
unconditionally waives any objection
38
to the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in (i) the Circuit Court of
Henrico County, Commonwealth of Virginia, or (ii) the United States District
Court for the Eastern District of Virginia (Richmond Division), and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum, and the right to object, with
respect to such action, suit or proceeding, that such court does not have
jurisdiction over such Party.
SECTION 8.22. 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 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
XXXX CORPORATION,
by ____________________________
Name:
Title:
ARCH CHEMICALS, INC.,
by ____________________________
Name:
Title:
39
The following is an identification of the contents of all omitted
schedules and exhibits to the Distribution Agreement. Arch Chemicals, Inc. will
furnish supplementally a copy of any omitted schedule or exhibit to the
Securities and Exchange Commission upon request.
SCHEDULES
Schedule 1.01(a) - Real Estate
Schedule 1.01(b) - Equity Interests
Schedule 1.01(c) - Certain Additional Transferred Assets
Schedule 1.01(d) - Retained Assets
Schedule 1.01(e) - Retained Businesses
Schedule 1.01(f) - Litigation
Schedule 1.01(g) - Certain Contractual Liabilities
Schedule 1.01(h) - Certain Additional Liabilities
Schedule 1.01(i) - Certain Excluded Liabilities
Schedule 1.01(j) - Arch Product Lines
Schedule 2.08 - Guarantees
Schedule 3.04 - Contract Provisions
