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Exhibit 2.1
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TRANSFER AND DISTRIBUTION AGREEMENT
Dated as of April 24, 1998
between
GREAT LAKES CHEMICAL CORPORATION
and
OCTEL CORP.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 General..................................................................... 3
ARTICLE II
REORGANIZATION AND RELATED TRANSACTIONS
Section 2.1 The Reorganization.......................................................... 17
Section 2.2 Assumption of Certain Liabilities; Issuance of Octel Common Stock........... 19
Section 2.3 Foreign Exchange Rates...................................................... 19
Section 2.4 Great Lakes Approval........................................................ 19
ARTICLE III
ASSUMPTION AND RETENTION OF LIABILITIES
Section 3.1 Assumed Liabilities......................................................... 20
Section 3.2 Retained Liabilities........................................................ 20
ARTICLE IV
THE DISTRIBUTION
Section 4.1 The Distribution............................................................ 20
Section 4.2 Fractional Shares........................................................... 21
Section 4.3 Actions by Great Lakes Board and Octel Board................................ 21
ARTICLE V
INDEMNIFICATION, CLAIMS AND OTHER MATTERS
Section 5.1 Release and Indemnification................................................. 22
Section 5.2 Procedure for Indemnification............................................... 24
Section 5.3 Indemnifiable Losses under Sections 5.1(b)(ii) and 5.1(c)(ii)............... 27
Section 5.4 Indemnifiable Losses under Sections 5.1(b)(iii), 5.1(b)(v), 5.1(c)(iii) and
5.1(c)(iv)(B)............................................................... 27
Section 5.5 No Beneficiaries............................................................ 28
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Section 5.6 Named Parties.............................................................. 28
ARTICLE VI
CERTAIN ADDITIONAL MATTERS
Section 6.1 Conveyancing and Assumption Instruments.................................... 28
Section 6.2 Representations or Warranties.............................................. 28
Section 6.3 Further Assurances; Subsequent Transfers................................... 33
Section 6.4 Octel Officers and Directors............................................... 37
Section 6.5 Resignations............................................................... 37
Section 6.6 Certain Intercompany Arrangements.......................................... 37
Section 6.7 Related Agreements......................................................... 37
Section 6.8 Signs; Use of Corporate Names.............................................. 37
Section 6.9 Supplies and Documents..................................................... 38
Section 6.10 Letters of Credit.......................................................... 39
Section 6.11 Partnership Agreement..................................................... 39
Section 6.12 DBE Storage Tank........................................................... 39
ARTICLE VII
ACCESS TO INFORMATION AND SERVICES
Section 7.1 Provision of Corporate Records............................................. 40
Section 7.2 Access to Information...................................................... 41
Section 7.3 Production of Witnesses and Individuals.................................... 41
Section 7.4 Retention of Records....................................................... 41
Section 7.5 Confidentiality............................................................ 42
Section 7.6 Privileged Matters......................................................... 44
Section 7.7 Mail and Other Communications.............................................. 46
ARTICLE VIII
EMPLOYEE MATTERS AND BENEFITS
Section 8.1 Benefit Plans.............................................................. 46
Section 8.2 Assumption of Benefit Plans................................................ 46
Section 8.3 Service Credit............................................................. 47
Section 8.4 Transfer and Vesting of Savings Plan Balances; Vesting
of Pension Plan Benefits................................................... 47
Section 8.5 Certain Transfers from U.K. Pension Plans.................................. 48
Section 8.6 Transferred Octel Employees................................................ 49
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ARTICLE IX
ENVIRONMENTAL MATTERS
Section 9.1 Octel Responsibility....................................................... 51
Section 9.2 Great Lakes Responsibility................................................. 52
ARTICLE X
INSURANCE
Section 10.1 General.................................................................... 52
Section 10.2 Octel's Insurance.......................................................... 53
Section 10.3 Access to Great Lakes' Insurance Program................................... 55
Section 10.4 Insurance Recoveries....................................................... 56
Section 10.5 Assignment................................................................. 58
ARTICLE XI
DISPUTE RESOLUTION
Section 11.1 Mediation and Binding Arbitration.......................................... 58
Section 11.2 Initiation................................................................. 58
Section 11.3 Submission to Mediation.................................................... 59
Section 11.4 Selection of Mediator...................................................... 59
Section 11.5 Mediation and Arbitration.................................................. 59
Section 11.6 Selection of Arbitrator.................................................... 59
Section 11.7 Cost of Arbitration........................................................ 59
Section 11.8 Arbitration Period......................................................... 60
Section 11.9 Treatment of Negotiation and Mediation..................................... 60
Section 11.10 Confidentiality............................................................ 60
Section 11.11 Equitable Relief........................................................... 60
Section 11.12 Notices.................................................................... 60
Section 11.13 Consolidation.............................................................. 60
Section 11.14 Powers of Arbitrator....................................................... 60
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ARTICLE XII
MISCELLANEOUS
Section 12.1 Complete Agreement.......................................................... 61
Section 12.2 Expenses.................................................................... 61
Section 12.3 Governing Law............................................................... 63
Section 12.4 Notices..................................................................... 63
Section 12.5 Amendment and Modification.................................................. 64
Section 12.6 Termination................................................................. 64
Section 12.7 Successors and Assigns...................................................... 64
Section 12.8 No Third Party Beneficiaries................................................ 65
Section 12.9 Counterparts................................................................ 65
Section 12.10 Interpretation.............................................................. 65
Section 12.11 Annexes, Etc................................................................ 65
Section 12.12 Construction of Agreements.................................................. 66
Section 12.13 Legal Enforceability........................................................ 66
Section 12.14 Survival.................................................................... 66
Section 12.15 Guaranty........................................................ ........... 66
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Annexes:
ANNEX I Assumed Liabilities
ANNEX II Transferred Assets
ANNEX III Excluded Assets
Exhibits:
Exhibit A - Corporate Services Transition Agreement
Exhibit B - Joint Representation and Defense Agreement
Exhibit C - Tax Disaffiliation Agreement
Exhibit D - Supply Agreements
Exhibit E - Ellesmere Port Lease Agreement
Exhibit F - Toll Manufacturing Agreement
Schedules:
Schedule 1.1A - Transferred Businesses
Schedule 1.1B - Transferred Great Lakes Employees
Schedule 1.1C - Transferred Octel Employees
Schedule 5.1(b) - Great Lakes Information in Information Statement
Schedule 6.2 - Great Lakes Intellectual Property
Schedule 8.1 - Benefit Plans
Schedule 8.5 - Pension Schedule
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TRANSFER AND DISTRIBUTION AGREEMENT
TRANSFER AND DISTRIBUTION AGREEMENT, dated as of April 24, 1998,
by and between Great Lakes Chemical Corporation, a Delaware corporation ("Great
Lakes"), and Octel Corp., a Delaware corporation and a wholly-owned direct
subsidiary of Great Lakes ("Octel").
RECITALS
WHEREAS, Great Lakes has, among other endeavors, been engaged,
through its subsidiaries, in the research, manufacturing and marketing of
products in the lead alkyls business (the "Lead Alkyls Business"), petroleum
specialties business (the "Petroleum Specialties Business") and performance
chemicals business (the "Performance Chemicals Business") (which businesses
shall collectively include, but not be limited to, the current and former plants
and facilities set forth on Schedule 1.1A hereto and shall specifically exclude
the Excluded Assets (as hereinafter defined) (such Lead Alkyls Business,
Petroleum Specialties Business and Performance Chemicals Business to be
collectively hereinafter referred to as the "Transferred Businesses"));
WHEREAS, the Board of Directors of Great Lakes has determined
that the interests of Great Lakes' businesses and shareholders would be best
served by separating its businesses into two separate companies, one consisting
of the Transferred Businesses and the other consisting of (i) the Excluded
Assets and (ii) Great Lakes' businesses other than the Lead Alkyls Business, the
Petroleum Specialties Business and the Performance Chemicals Business (such
other businesses of Great Lakes as referred to in this clause (ii) to be
collectively referred to herein as the "Non-Transferred Businesses");
WHEREAS, in furtherance of the foregoing, Great Lakes wishes to
transfer and assign to Octel all of the assets and properties of the Transferred
Businesses specified in this Agreement in exchange for (a) the assumption by
Octel of all of the Liabilities and obligations of Great Lakes and any Great
Lakes Entity (as defined herein), relating to, arising out of, or incurred in
connection with (i) the acquisition on or prior to the Distribution Date of all,
or any portion of, the Transferred Businesses and the Transferred Assets,
including, without limitation, any Liabilities or obligations arising under the
agreements listed on Annex I, Schedule 1, (ii) the operational or structural
documents relating to the Transferred Businesses or
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Transferred Assets (whether such Liabilities and obligations relate to Great
Lakes or any Great Lakes Entity as partner, shareholder or otherwise),
including, without limitation, the documents listed on Annex I, Schedule 3;
(iii) the ownership or operation of the Transferred Businesses or the
Transferred Assets before, on or after the Distribution Date and (iv) the Octel
Liabilities (as hereinafter defined), (b) the assignment to Great Lakes by Octel
of all of Octel's right, title and interest in and to the Excluded Businesses
and the Excluded Assets and (c) the issuance to Great Lakes by Octel of shares
of its common stock, par value $.01 per share (the "Octel Common Stock");
WHEREAS, in exchange for the transfers by Octel of the Excluded
Businesses and the Excluded Assets, Great Lakes shall assume all Liabilities and
obligations relating to, arising out of or incurred in connection with the
operation of the Excluded Assets or the Excluded Businesses, other than the
Octel Liabilities;
WHEREAS, Octel is willing to assign the Excluded Businesses and
the Excluded Assets, assume the aforementioned Liabilities and obligations and
issue the shares of Octel Common Stock to Great Lakes in exchange for the assets
and properties of the Transferred Businesses and the assumption by Great Lakes
of the aforementioned Liabilities and obligations;
WHEREAS, Great Lakes intends to distribute all of the outstanding
shares of Octel Common Stock, on a pro rata basis, to the holders of the common
stock of Great Lakes, par value $1.00 per share (the "Great Lakes Common Stock")
(such distribution of Octel Common Stock hereinafter referred to as the
"Distribution"); and
WHEREAS, Great Lakes and Octel have determined that it is
necessary and desirable to set forth the principal corporate transactions
required to effect the Distribution and to set forth other agreements that shall
govern certain other matters in connection with the Distribution.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, Great Lakes and Octel hereby agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1 General. As used in this Agreement, capitalized terms
defined immediately after their use shall have the respective meanings thereby
provided and 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: any action, claim, suit, arbitration, inquiry, subpoena,
discovery request, proceeding or investigation by or before any court or grand
jury, any governmental or other regulatory or administrative agency or
commission or any arbitration tribunal.
Adjusted Guaranteed Amount: shall have the meaning set forth in
Schedule 8.5 hereof.
Affiliate: with respect to any specified person, a person that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such specified person; provided,
however, that Great Lakes and Octel shall not be deemed to be Affiliates of each
other for purposes of this Agreement.
Agent: First Chicago Trust Company of New York, the distribution
agent appointed by Great Lakes to distribute shares of Octel Common Stock
pursuant to the Distribution.
Asset and Liability Transfer: shall have the meaning set forth in
Section 2.1(a) hereof.
Assumed Environmental Liabilities: all actual or alleged
Liabilities and obligations (regardless of whether any claims with respect to
such Liabilities and obligations are asserted prior to, on or after the
Distribution Date) relating to Environmental Matters or arising under any
Environmental Laws (including all claims for death, bodily injury, personal
injury and property damage relating to Environmental Matters or arising under
any Environmental Laws) which relate to, arise out of or are incurred in
connection with:
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(i) the activities, operations, acts or omissions
at, from or with respect to the Transferred Businesses or the
Transferred Assets before, on or after the Distribution Date;
(ii) Remediation of any Release arising out of or
resulting from activities, operations, acts or omissions at, from or
with respect to the Transferred Businesses or the Transferred Assets
before, on or after the Distribution Date wherever such Remediation may
be performed; and
(iii) after the Distribution Date, any activities,
operations, acts or omissions at, from or with respect to any
businesses of Octel or its Affiliates, including, but not limited to,
the Transferred Businesses or the Transferred Assets.
Assumed Liabilities: collectively, all of the actual or alleged
Liabilities and other obligations (regardless of whether any claims with
respect to such Liabilities and obligations are asserted prior to, on or after
the Distribution Date) which relate to, arise out of, or are incurred in
connection with (i) the acquisition by Great Lakes or any Great Lakes Entity on
or prior to the Distribution Date of all, or any portion, of an interest in
Octel Corp., Octel Associates, The Associated Octel Company Limited, Octel
America, Inc. and any other corporation, partnership or other entity that is or
was engaged in the Transferred Businesses, including, without limitation, any
Liabilities or obligations under the agreements listed on Annex I, Schedule 1,
(ii) the ownership, operation or use of the Transferred Businesses or the
Transferred Assets prior to, on or after the Distribution Date, including,
without limitation, any Liabilities or obligations arising under the agreements
listed on Annex I, Schedule 2, (iii) the Octel Liabilities, (iv) (A) the
formation, structure and operation of The Associated Octel Company Limited or
Octel Associates or (B) the status of, or conduct of the businesses by Great
Lakes or any Great Lakes Entity, as an owner, shareholder or partner (other than
if Great Lakes or any of its Affiliates becomes an owner, shareholder or partner
following the Distribution Date), as the case may be, of The Associated Octel
Company Limited or Octel Associates, including, without limitation, any
Liabilities and obligations arising under or relating to the agreements set
forth on Annex I, Schedule 3, (v) the Assumed Environmental Liabilities and
Product Liabilities, (vi) Octel's or its Affiliates' operations and activities
after the Distribution Date in the conduct of its businesses, including but not
limited to the Transferred Businesses and (vii) (A) the acquisition, ownership,
operation, divestiture or sale of Societe Mediterraneene du Brome, S.A. by Great
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Lakes or any Great Lakes Entity on or prior to the Distribution Date or (B) the
status of, or conduct of the business by Great Lakes or any Great Lakes Entity
as owner, shareholder or partner (other than if Great Lakes or any of its
Affiliates becomes an owner, shareholder or partner following the Distribution
Date), as the case may be, of Societe Mediterraneene du Brome, S.A. The term
"Assumed Liabilities" shall be deemed to include, but shall not be limited to,
the Liabilities listed on Annex I hereto.
Benefit Plans: shall have the meaning set forth in Section 8.1
hereof.
Bids, Quotations and Proposals: the bids, quotations or proposals
which have been submitted or made by the Transferred Businesses or Great Lakes
or any Great Lakes Entity on behalf of the Transferred Businesses which are
outstanding as of the Distribution Date.
Code: the Internal Revenue Code of 1986, as amended.
Confidential Information: shall have the meaning set forth in
Section 7.5(b) hereof.
Conveyancing and Assumption Instruments: collectively, the
various agreements, instruments and other documents to be entered into to effect
(i) the transfer to Octel of the Transferred Businesses and the Transferred
Assets, (ii) the assumption by Octel of the Assumed Liabilities and (iii) the
transfer to Great Lakes of the Excluded Businesses and the Excluded Assets, all
in the manner contemplated by this Agreement.
Corporate Services Transition Agreement: the Corporate Services
Transition Agreement, substantially in the form set forth as Exhibit A hereto,
pursuant to which Octel or its Affiliates shall provide to Great Lakes or its
Affiliates certain corporate services specified therein.
DBE Lease: the agreement referred to as such in clause (e) of
Annex III.
DBE Storage Tank: shall have the meaning set forth in Section
6.12 hereof.
Dispute: shall have the meaning set forth in Section 11.1
hereof.
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Distribution: the distribution as a dividend to holders of Great
Lakes Common Stock of Octel Common Stock on the basis provided in Section 4.1
hereof, which shall be effective on the date specified for the dividend by the
Great Lakes Board of Directors.
Distribution Date: the date as of which the Distribution shall be
effected as determined by the Great Lakes Board of Directors.
Ellesmere Port Lease Agreement: the agreement, substantially in
the form of Exhibit E hereto, which may be entered into by Great Lakes or any of
its Affiliates as lessee and Octel or any of its Affiliates as lessor with
respect to the leasing of certain office space located at Ellesmere Port, United
Kingdom.
Environmental Law: any international (e.g., European Union),
national, state, provincial, regional and local statute, ordinance, rule,
regulation, any principle established by decisional law, any judicial or
administrative order, any judicial or administrative consent decree or judgment,
and all provisions and conditions of permits, licenses and other operating
authorizations, as any of the foregoing are in effect at any time (whether prior
to, on or after the Distribution Date) and as they may be amended from time to
time, relating to: (a) pollution or protection of the environment, including
natural resources, disposal of toxic, hazardous, or other waste, atmospheric
emissions and discharge and treatment of stormwater or sanitary and industrial
wastewater, (b) human health and safety, including exposure of persons,
including employees, to toxic, hazardous or dangerous materials or substances,
(c) protection of the public health or welfare from the effect of by-products,
wastes, emissions, discharges or releases of any chemical or other substances
from industrial or commercial activities or (d) regulation of the manufacture,
use or introduction into commerce of chemical or other substances, including,
without limitation, their manufacture, importation, exportation, formulation,
labeling, distribution, transportation, handling, storage, treatment, recycling,
removal and disposal.
Environmental Matters: all matters relating in any way to (a)
soil, air and water and groundwater pollution or contamination, including
without limitation, any on-site or off-site pollution or contamination; (b)
damages to the natural environment or natural resources; (c) Releases or
discharges of wastes, Hazardous Materials, or pollutants or contaminants; (c)
occupational health and safety; or (d) the generation, transport, storage,
recycling or disposal of Hazardous Materials or wastes (including, without
limitation, garbage, refuse, slag, sludge and other dis-
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carded materials, whether solid, liquid, semisolid or gaseous and whether
on-site or off-site).
ERISA: shall have the meaning set forth in Section 8.1(b)
hereof.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Excluded Assets: collectively, all of the assets and properties
identified on Annex III hereto.
Excluded Bids, Quotations and Proposals: the bids, quotations or
proposals which have been included as part of the Excluded Assets, or which have
been submitted or made in connection with the operations and business of the
Excluded Assets or the Excluded Businesses, which are outstanding as of the
Distribution Date.
Excluded Books and Records: the books and records of Great Lakes
or any Great Lakes Entity (or true and complete copies thereof) as of the
Distribution Date, including all computerized books and records, which relate
principally to the Excluded Businesses and the Excluded Assets, including,
without limitation, all such books and records relating to (i) technical and
research and development information, (ii) the Transferred Octel Employees,
(iii) the purchase of materials, supplies and services for and to the Excluded
Assets or the Excluded Businesses, (iv) the manufacture and sale of products by
the Excluded Businesses and (v) dealings with customers of the Excluded
Businesses.
Excluded Businesses: collectively, all of the assets and
properties referred to as such on Annex III hereto.
Financings: shall have the meaning set forth in the Form 10.
First Party: shall have the meaning set forth in Section 7.5(b)
hereof.
Form 10: the registration statement on Form 10, as amended, filed
by Octel with the SEC to effect the registration of the Octel Common Stock
pursuant to the Exchange Act, including the Information Statement contained
therein.
Fuel Detergent Plant: the real property and personal property
acquired by Great Lakes or any Great Lakes Entity pursuant to that certain
Asset Sale
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Agreement, made November 20, 1991, between Shell U.K. Limited, GHC Properties,
Inc., The Associated Octel Company Limited and Associated Octel Company (Plant)
Limited, and all other transactions, contracts, agreements, deeds, assignments
and undertakings entered into pursuant thereto.
Great Lakes Common Stock: the common stock referred to as such in
the Recitals.
Great Lakes Entity: Great Lakes and Octel and any foreign or
domestic predecessor, subsidiary, division, affiliate, joint venture,
partnership or associated company of Great Lakes and Octel including, without
limitation, The Associated Octel Company Limited, Octel Associates, Octel
America, Inc., the Transferred Business and the Excluded Business and any
foreign or domestic predecessor, subsidiary, division, affiliate, joint venture,
partnership or associated company thereof, whether or not any of the
aforementioned entities were sold, terminated, liquidated, closed or dissolved
before, on or after the Distribution Date.
Great Lakes Product: (i) any goods manufactured, processed, sold
or distributed on or before the Distribution Date by the Excluded Business or
utilizing the Excluded Assets; (ii) any goods manufactured, processed, sold or
distributed on or before the Distribution Date by the Non-Transferred Businesses
and (iii) any goods manufactured, processed, sold or distributed after the
Distribution Date by Great Lakes or its Affiliates.
Great Lakes Product Liability: any actual or alleged Liability of
Great Lakes or any Great Lakes Entity to third parties (regardless of whether
any claim with respect to such Liability is asserted prior to, on or after the
Distribution Date) arising from or relating to the transportation, handling,
possession, processing, treatment, storage, disposal, manufacture, further
manufacture, use, reuse, sale or resale of the Great Lakes Products, including
all such Liability for personal injury, bodily injury (including death or
aggravation of previously existing illness, injury, disability or condition) or
property damages, provided, however, the Octel Liabilities shall not constitute
Great Lakes Product Liabilities.
Great Lakes Party: shall have the meaning set forth in Section
5.3 hereof.
Great Lakes Releasees: shall have the meaning set forth in
Section 6.11 hereof.
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Great Lakes Transfer Date: with respect to a particular asset
(including capital stock), the date that such asset was transferred from Great
Lakes or its Affiliates to Octel or its Affiliates in furtherance of the
transactions contemplated by this Agreement.
Hazardous Materials: those elements, compounds and substances
identified in any of the Environmental Laws as "hazardous materials," "hazardous
substances," or "hazardous wastes," as well as any other elements, compounds or
substances which are listed or identified as "pollutants," "contaminants,"
"hazardous" or "toxic" (or by other terms of similar meaning) under any
Environmental Law. The term "Hazardous Materials" specifically includes, without
limitation, radioactive materials, petroleum products and asbestos.
Indemnifiable Losses: with respect to any claim by an Indemnified
Party for indemnification authorized pursuant to Article V hereof, any and all
losses, Liabilities, claims, damages, obligations, payments, costs and expenses
(including, without limitation, the costs and expenses of any and all Actions,
demands, assessments, judgments, settlements and compromises relating thereto
and reasonable attorneys' fees and expenses in connection therewith) suffered by
such Indemnified Party with respect to such claim.
Indemnification Claimant: shall have the meaning set forth in
Section 5.2(c) hereof.
Indemnified Party: any party who is entitled to receive payment
from an Indemnifying Party pursuant to Article V hereof.
Indemnifying Party: any party who is required to pay any other
person pursuant to Article V hereof.
Indemnity Payment: the amount an Indemnifying Party is required
to pay an Indemnified Party pursuant to Article V hereof.
Information: shall have the meaning set forth in Section 7.2
hereof.
Information Statement: the information statement to be sent to
the holders of Great Lakes Common Stock in connection with the Distribution.
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Insurance Program: collectively, the series of policies pursuant
to which, from time to time, various insurance carriers provide, have provided
or will provide, insurance coverage to Great Lakes and the Great Lakes Entities
in respect of claims or occurrences relating to, without limitation, property
damage, manufacturer's output, business interruption, transit, fire, extended
coverage, fiduciary, fidelity, environmental impairment, employee crime, general
liability, products' liability, automobile liability, employer's liability,
umbrella/excess liability, directors & officers/corporate reimbursement,
employee benefits programs, professional liability, aviation products liability,
surety bonds and ocean marine. Nothing in this definition shall be construed to
imply that every Great Lakes Entity is, has been or will be, covered under each
policy contained in the Insurance Program. Whether a particular Great Lakes
Entity is, was or will be covered under a particular policy at a particular time
shall be governed by the specific terms of such policy.
Investor Roadshow: all actions, written and oral, taken by Octel
and its financial and other advisors in connection with the marketing effort
conducted by Octel and such advisors relating to the Octel Common Stock and any
other securities of Octel to be offered in connection with the Distribution
(including, but not limited to, the Senior Notes due 2006 to be issued by Octel
Developments PLC), including, without limitation, the presentations of certain
financial information and managerial outlooks to financial analysts, fund
managers and other potential investors.
Joint Representation and Defense Agreement: any agreement,
substantially in the form of Exhibit B hereto, which may be entered into by
Great Lakes and Octel with respect to representation and defense of certain
matters.
Lead Alkyls Business: the business referred to in the Recitals as
such, and which shall be that business which is described as such in the Form
10.
Lenders' Liens: any and all liens now or hereafter placed on any
of the Transferred Assets in connection with the senior credit facility
(including the revolving credit facility and the term loan facility) entered
into by Octel or one or more of its Affiliates in connection with the
Distribution or the Financings (including any refinancings thereof) and as more
specifically described in the Form 10.
Liabilities: any and all debts, damages, liabilities, claims,
causes of action and obligations, whether or not accrued, contingent (known or
unknown) or reflected on a balance sheet, including, without limitation, those
arising under any law, rule, regulation, Action, order or consent decree of any
governmental entity or
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any judgment of any court of any kind or any award of any arbitrator of any
kind, and those arising under any contract, commitment or undertaking. The term
"Liabilities" shall include all damages of any kind, including, without
limitation, consequential, incidental, exemplary and punitive damages.
March Insurance: shall have the meaning set forth in Section
10.1.
Material Adverse Effect: with respect to any party, an effect
that (i) is material and adverse to such party's business, assets, properties,
results of operations, financial condition, or (insofar as can be reasonably
foreseen) prospects, taken as a whole or (ii) materially impairs the ability of
such party to consummate the transactions contemplated by this Agreement and
the Related Agreements; provided, however, that the term "Material Adverse
Effect" shall not be deemed to include (a) actions contemplated by this
Agreement or the Related Agreements, (b) changes in laws and regulations or
interpretations thereof, or changes in generally accepted accounting principles,
that are generally applicable to the industry or industries in which such party
conducts business, (c) reasonable expenses incurred in connection with the
transactions contemplated by this Agreement and the Related Agreements and (d)
changes attributable to or resulting from changes in general economic conditions
generally effecting the industry or industries in which such party conducts
business.
Non-Transferred Businesses: the businesses referred to as such in
the Recitals and any and all operations and activities on or prior to the
Distribution Date of Great Lakes or any Great Lakes Entity (other than the
Excluded Assets, the Excluded Businesses, the Transferred Businesses and the
Transferred Assets).
Octel Common Stock: the common stock referred to as such in the
Recitals.
Octel Liabilities: shall mean (regardless of whether any claim
with respect to the Liabilities in (i) and (ii) below is asserted prior to, on
or after the Distribution Date) the (i) Liabilities, including reasonable
attorneys' fees, professional fees and expenses incurred in connection with the
investigation and defense of any matter encompassed herein, in an aggregate
amount up to a maximum of $5 million for (A) Third Party Claims for (x) bodily
injury, death, personal injury or property damage, (y) Remediation required by a
government authority of on-site soil or groundwater contamination or off-site
contamination of soil or groundwater caused by Hazardous Materials to the extent
that such Remediation would be
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required by laws in effect on January 1, 1998, arising out of (1) the operation
of the Excluded Businesses or the Excluded Assets on or prior to January 1,
1998, (2) off-site disposal on or prior to January 1, 1998 of Hazardous
Materials produced by the Excluded Businesses or the Excluded Assets, (3)
on-site soil or groundwater contamination on or prior to January 1, 1998 caused
by Hazardous Materials or (4) products manufactured or sold by the Excluded
Businesses or the Excluded Assets on or prior to January 1, 1998, provided,
however, that Octel shall only be responsible for Remediation of on-site soil or
groundwater contamination caused by Hazardous Materials so long as Great Lakes
or any of its Affiliates continues to operate the Excluded Businesses or any
chemical manufacturing operations on the property where the Remediation is
required and provided further, that under no circumstances shall Octel be
responsible for replacements, repairs or upgrades in relation to any facilities
at the Excluded Business sites and (z) government fines for violation of
Environmental Law in the operation of the Excluded Businesses or the Excluded
Assets arising in respect of acts or omissions occurring on or before January 1,
1998, and (B) the cost of containing imminent off-site migration of Hazardous
Materials in soil or groundwater resulting from the conduct of the Excluded
Businesses or the Excluded Assets on or prior to January 1, 1998 if such
migration of Hazardous Materials would be required to be contained pursuant to
Environmental Laws in effect on January 1, 1998, provided, however, that, except
as provided in clause (A) of this definition, Octel shall not be responsible for
any on-site Remediation undertaken by Great Lakes or any of its Affiliates to
the extent such Remediation is not required to prevent such imminent off-site
migration; and (ii) Liabilities incurred by Octel in connection with its
obligation to make the payments described in Section 8.6(d) of this Agreement
(Transferred Octel Employees) or for the matters set forth in clauses (d) or (e)
of Annex I.
Octel Party: shall have the meaning set forth in Section 5.4
hereof.
Octel Transfer Date: with respect to a particular asset
(including capital stock), the date that such asset was transferred from Octel
or its Affiliates to Great Lakes or its Affiliates in furtherance of the
transactions contemplated by this Agreement.
Offering Circular: any preliminary or final offering circular
with respect to the issuance and sale of debt securities by Octel Developments
PLC in connection with the Distribution.
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Partnership Agreement: the agreement, dated April 15, 1966,
between Shell U.K. Limited, BP Trading Limited, Caltex (U.K.) Limited and Mobil
Transportation Company Limited under which a partnership was formed under the
name "Octel Associates" (as amended from time to time prior to the Distribution
Date).
Partnership Releasors: shall have the meaning set forth in
Section 6.11 hereof.
Performance Chemicals Business: the business referred to as such
in the Recitals, and which shall be that business which is described as such in
the Form 10.
Petroleum Specialties Business: the business referred to as such
in the Recitals, and which shall be that business which is described as such in
the Form 10.
Privilege(s): shall have the meaning set forth in Section 7.6(a)
hereof.
Privileged Information: shall have the meaning set forth in
Section 7.6(a) hereof.
Products: (i) any goods manufactured, processed, sold or
distributed at any time on or prior to the Distribution Date by the Transferred
Businesses or utilizing the Transferred Assets and (ii) any goods, including,
but not limited to, lead alkyls, petroleum specialty products and performance
chemicals manufactured, processed, sold or distributed by Octel or its
Affiliates after the Distribution Date.
Product Liability: any actual or alleged Liability of Great Lakes
or any Great Lakes Entity to third parties (regardless of whether any claim with
respect to such Liability is asserted prior to, on or after the Distribution
Date) arising from or relating to the transportation, handling, possession,
processing, treatment, storage, disposal, manufacture, further manufacture, use,
reuse, sale or resale of the Products, including all such Liability for personal
injury, bodily injury (including death or aggravation of previously existing
illness, injury, disability or condition) or property damages.
Record Date: the date determined by the Board of Directors of
Great Lakes as the record date for the Distribution.
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Recovery: the amount obtained pursuant to a claim under an
insurance policy in the Insurance Program.
Related Agreements: the Conveyancing and Assumption Instruments,
Corporate Services Transition Agreement, Tax Disaffiliation Agreement, the
Supply Agreements, Toll Manufacturing Agreement, Joint Representation and
Defense Agreement, the Ellesmere Port Lease Agreement and the various service,
supply and other agreements to be entered into between Great Lakes and its
Affiliates, on the one hand, and Octel and its Affiliates, on the other hand, in
connection with the Distribution and the other transactions contemplated hereby.
Release: any spilling, leaking, pumping, pouring, emitting,
discharging, injecting, escaping, leaching, dumping or disposing into the
environment of any Hazardous Material, including the abandonment or discarding
of barrels, containers, and other receptacles containing any Hazardous Material,
and any passive migration of any Hazardous Material.
Releasee(s): shall have the meaning set forth in Section 5.1(a)
hereof.
Releasors: shall have the meaning set forth in Section 5.1(a)
hereof.
Remediation: any investigation, remediation, prevention,
containment or abatement of releases or threatened releases of materials into
the workplace or the environment and the assessment and mitigation of risks
and/or restoration of any harm arising therefrom, and any related actions.
Retained Environmental Liabilities: all actual or alleged
Liabilities and obligations (regardless of whether any claim with respect to
such Liabilities and obligations is asserted prior to, on or after the
Distribution Date) relating to Environmental Matters or arising under any
Environmental Laws (including all claims for death, bodily injury, personal
injury and property damage relating to Environmental Matters or arising under
any Environmental Laws) which relate to, arise out of or are incurred in
connection with:
(i) the activities, operations, acts or omissions
at, from or with respect to the Non-Transferred Businesses, the
Excluded Businesses or the Excluded Assets before, on or after the
Distribution Date (other than the Octel Liabilities);
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(ii) Remediation of any Release arising out of or
resulting from activities, operations, acts or omissions at, from or
with respect to the Non-Transferred Businesses, the Excluded Businesses
or the Excluded Assets before, on or after the Distribution Date (other
than the Octel Liabilities) wherever such Remediation may be performed;
and
(iii) any activities, operations, acts or omissions
at, from or with respect to any businesses of Great Lakes or its
Affiliates following the Distribution Date.
Retained Liabilities: collectively, all of the actual or alleged
Liabilities and other obligations (regardless of whether any claim with respect
to such Liabilities and obligations is asserted prior to, on or after the
Distribution Date) which relate to, arise out of, or are incurred in connection
with (i) the acquisition by Great Lakes or any Great Lakes Entity on or prior to
the Distribution Date of all, or any portion of, any corporation, partnership or
other entity that is or was engaged in the Non-Transferred Businesses or the
Excluded Businesses, (ii) the ownership or operation of the Non-Transferred
Businesses, Excluded Businesses or Excluded Assets prior to, on or after the
Distribution Date, (iii) the Retained Environmental Liabilities and Great Lakes
Product Liabilities and (iv) Great Lakes' or its Affiliates' operations and
activities after the Distribution Date in the conduct of its businesses,
including but not limited to the Non-Transferred Businesses or Excluded
Businesses; provided, that the Octel Liabilities shall not constitute Retained
Liabilities.
Run-Off Policies: shall have the meaning set forth in Section
10.2(b).
Savings Plan: shall have the meaning set forth in Section 8.2
hereof.
SEC: the United States Securities and Exchange Commission.
Successor Savings Plan: shall have the meaning set forth in
Section 8.4(a) hereof.
Supply Agreements: the Supply Agreements, in the form of the
agreements attached as Exhibit D hereto, pursuant to which Great Lakes or its
Affiliates and Octel or its Affiliates shall provide certain products to each
other.
Taxes: shall have the meaning set forth in Section 12.12.
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Tax Disaffiliation Agreement: the Tax Disaffiliation Agreement,
in the form of Exhibit C hereto, pursuant to which Great Lakes and Octel have
provided for certain tax matters.
Third Party Claim: shall have the meaning set forth in Section
5.2(a) hereof.
Toll Manufacturing Agreement: the Toll Manufacturing Agreement,
substantially in the form set forth as Exhibit F hereto, relating to the toll
manufacture by Great Lakes of Stadis(R) 425 and Stadis(R) 450 (Enhanced).
Transfer Amount: shall have the meaning set forth in Schedule 8.5
hereof.
Transfer Date: shall have the meaning set forth in Section 8.4
hereof.
Transferred Assets: collectively, all of the assets and
properties of Great Lakes or any Great Lakes Entity used principally in the
Transferred Businesses on or prior to, and in existence as of, the Distribution
Date, including, but not limited to, those assets and properties identified on
Annex II hereto, but specifically excluding the Excluded Assets.
Transferred Businesses: the businesses referred to as such in the
Recitals, including any businesses or products of Great Lakes or any Great Lakes
Entity that were discontinued or otherwise terminated prior to the Distribution
Date, to the extent that such businesses were conducted or such products were
manufactured or sold as part of the businesses referred to as part of the
Transferred Businesses in the Recitals. For the avoidance of doubt, the
facilities of Great Lakes and its Affiliates at Xxxxxxxx, Xxxxxx, Xxxxxxxx,
Xxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx
Xxxxxxx shall be deemed not to be Transferred Businesses or Transferred Assets
under this Agreement.
Transferred Businesses Books and Records: the books and records
of Great Lakes or any Great Lakes Entity (or true and complete copies thereof)
as of the Distribution Date, including all computerized books and records, which
relate principally to the Transferred Businesses, including, without limitation,
all such books and records relating to (i) technical and research and
development information, (ii) Transferred Great Lakes Employees, (iii) the
purchase of materials, supplies and services, (iv) the manufacture and sale of
products by the Transferred Businesses, (v)
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dealings with customers of the Transferred Businesses, (vi) the Assumed
Liabilities and (vii) all files relating to any Action being assumed by Octel as
part of the Assumed Liabilities.
Transferred Great Lakes Employee: (i) any employee of Great Lakes
or its Affiliates or Octel or its Affiliates who, as of the Distribution Date,
is employed either (A) by any of the Transferred Businesses or (B) at the
locations listed on Annex II, Schedule 1, (ii) for purposes of Article VIII
only, any former employee of Great Lakes or any Great Lakes Entity who, for
periods on or prior to the Distribution Date, was employed by any of the
Transferred Businesses, or any of the plants listed on Schedule 1.1A, (iii) any
employee of Great Lakes or its Affiliates or Octel or its Affiliates from such
entity's staff organizations, such as engineering, controllers, human resources
or legal affairs, who is assigned full-time to any of the Transferred
Businesses as of the Distribution Date or (iv) any person who is listed on
Schedule 1.1B and who is employed by the Transferred Businesses as of the
Distribution Date.
Transferred Octel Employee: any employee of Great Lakes or its
Affiliates or Octel or its Affiliates who, as of the U.K. Transfer Date, (i) is
employed by the Excluded Businesses, at (A) the Xxxxxx Research Laboratories
facility located on Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxx
Xxxxxxx, (X) the facility located at Xxxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx Xxxxxxx
or (C) Oil Xxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxxxx Xxxxxxx, and (D) is listed on
Schedule 1.1C, or (ii) is employed by the Excluded Businesses at (A) the Xxxxxx
Research Laboratories facilities located on Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxx, Xxxxxx Xxxxxxx, (X) the facility located at Xxxxxx, Xxxxxxxx,
Xxxxxxx, Xxxxxx Xxxxxxx or (C) Oil Xxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxxxx Xxxxxxx.
U.K. Transfer Date: April 1, 1998.
Welfare Plan: shall have the meaning set forth in Section 8.1(b)
hereof.
ARTICLE II
REORGANIZATION AND RELATED TRANSACTIONS
Section 2.1 The Reorganization.
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(a) Subject to the terms and conditions of this Agreement,
Great Lakes and Octel shall cause, on or before the Distribution Date, (i) all
of Great Lakes' and its Affiliates' right, title and interest in and to the
Transferred Businesses, including, but not limited to, the Transferred Assets,
to be conveyed, assigned, transferred and delivered to Octel or any of its
Affiliates, (ii) all of Octel's and its Affiliates' right, title and interest in
and to the Excluded Assets, including, but not limited to the Excluded
Businesses, to be conveyed, assigned and transferred and delivered to Great
Lakes or any of its Affiliates, (iii) all duties, obligations and
responsibilities with respect to the Assumed Liabilities to be assumed by Octel
or any of its Affiliates and (iv) all duties, obligations and responsibilities
with respect to Retained Liabilities to be assumed or retained by Great Lakes or
its Affiliates (the transfers set forth in this subsection (a) to be hereinafter
referred to as the "Asset and Liability Transfer").
(b) Subject to Section 6.3 hereof, to the extent that any
such conveyances, assignments, transfers and deliveries shall not have been so
consummated on the Distribution Date, Great Lakes and Octel shall cooperate to
effect such consummation as promptly thereafter as shall be practicable, it
nonetheless being understood and agreed by Great Lakes and Octel that, subject
to the Lenders' Liens, neither shall be liable in any manner to any person who
is not a party to this Agreement for any failure of any of the transfers
contemplated by this Article II to be consummated on or subsequent to the
Distribution Date. Whether or not the Asset and Liability Transfer shall have
occurred as of the Distribution Date, Great Lakes and Octel agree that, as of
the Distribution Date, (i) Octel shall have, and shall be deemed to have,
acquired complete and sole beneficial ownership of the Transferred Businesses,
including, without limitation, the Transferred Assets, except as described
herein with respect to assets which are non-assignable, together with all of
Great Lakes' rights, powers and privileges (except as provided in Section 7.6
hereto) and any other benefits relating thereto, and shall be deemed to have
assumed in accordance with the terms of this Agreement all of the Assumed
Liabilities, and all of Great Lakes' and any Great Lakes Entity's duties,
obligations and responsibilities relating thereto, (ii) Great Lakes shall have,
and shall be deemed to have, acquired complete and sole beneficial ownership of
the Excluded Assets, including, without limitation, the Excluded Businesses,
except as described herein with respect to assets which are non-assignable,
together with all of Octel's rights, powers and privileges (except as provided
in Section 7.6 hereto) and any other benefits relating thereto, and, except for
the Octel Liabilities, shall be deemed to have assumed all duties, obligations
and responsibilities relating to the operation of the Excluded Assets and the
Excluded Businesses and any duties, obligations and responsibilities relating
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thereto of any Great Lakes Entity and (iii) (A) Octel shall transfer to Great
Lakes any of the Excluded Assets which cannot be transferred as of the
Distribution Date if and when such transfer becomes possible and (B) Great Lakes
shall transfer to Octel any of the Transferred Assets which cannot be
transferred as of the Distribution Date if and when such transfer becomes
possible.
Section 2.2 Assumption of Certain Liabilities; Issuance of Octel
Common Stock. In consideration of the conveyance, assignment, transfer and
delivery of the Transferred Businesses, including, without limitation, the
Transferred Assets, being made pursuant to Section 2.1 hereof, Octel agrees to
(a) assume the Assumed Liabilities, and (b) issue and deliver to the Agent for
delivery to stockholders of Great Lakes as of the Record Date a certificate
representing the number of shares of Octel Common Stock as provided for in
Section 4.1 hereof. In consideration of the conveyance, assignment, transfer
and delivery of the Excluded Assets, including, without limitation, the Excluded
Businesses, being made pursuant to Section 2.1 hereof, Great Lakes agrees to
assume the Retained Liabilities.
Section 2.3 Foreign Exchange Rates. Except as agreed upon by
Great Lakes and Octel or as otherwise provided in this Agreement, all payments
to each other shall be in U.S. dollars and all amounts represented on the books
of Great Lakes or Octel as a foreign currency obligation shall be converted into
U.S. dollars based on the exchange rate quoted in The Wall Street Journal on the
last business day preceding the Distribution Date (or as of such other day as
may be agreed to by Octel and Great Lakes) or, with respect to payments to be
made on a date other than the Distribution Date, the last business day preceding
the respective applicable date (or as of such other day as may be agreed to by
Octel and Great Lakes). Great Lakes and Octel shall cooperate with each other to
facilitate the prompt transfer of funds so as to minimize the potential effect
of any changes in exchange rates.
Section 2.4 Great Lakes Approval. Great Lakes shall cooperate
with Octel in effecting, and if so requested by Octel, Great Lakes shall, as the
sole stockholder of Octel, ratify any actions which are reasonably necessary or
desirable to be taken by Octel to effectuate the transactions contemplated by
this Agreement in a manner consistent with the terms of this Agreement,
including, without limitation, the election or appointment of directors and
officers of Octel to serve in such capacities following the Distribution Date
(if not so appointed by the Board of Directors of Octel).
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ARTICLE III
ASSUMPTION AND RETENTION OF LIABILITIES
Section 3.1 Assumed Liabilities. Upon the terms and subject to
the conditions set forth in this Agreement and in addition to any other
Liabilities otherwise expressly assumed by Octel pursuant to this Agreement, the
Related Agreements or any other agreement contemplated by this Agreement, Octel
hereby agrees with Great Lakes that Octel shall assume, pay, perform and
discharge (or to cause the appropriate Affiliate of Octel to pay, perform and
discharge) when due, any and all Assumed Liabilities.
Section 3.2 Retained Liabilities. Upon the terms and subject to
the conditions set forth in this Agreement and in addition to any other
Liabilities otherwise expressly assumed or retained by Great Lakes pursuant to
this Agreement, the Related Agreements or any other agreement contemplated by
this Agreement, Great Lakes hereby agrees with Octel that Great Lakes shall
assume, pay, perform and discharge (or to cause the appropriate Affiliate of
Great Lakes to pay, perform and discharge) when due, any and all Retained
Liabilities.
ARTICLE IV
THE DISTRIBUTION
Section 4.1 The Distribution. On or prior to the Distribution
Date, Great Lakes shall deliver to the Agent the certificate for all of the
issued and out standing shares of Octel Common Stock which were owned by Great
Lakes prior to the Distribution. Upon receipt from Great Lakes of a certificate
as to the number of shares of Great Lakes Common Stock outstanding on the Record
Date, Octel shall deliver to the Agent, for the benefit of holders of record of
Great Lakes Common Stock on the Record Date, a stock certificate or stock
certificates representing, in the aggregate (and rounded down to the nearest
whole share), a number of shares representing one (1) share of Octel Common
Stock for every four (4) shares of Great Lakes Common Stock outstanding on the
Record Date (less all of the issued and outstanding shares of Octel Common Stock
owned prior to the Distribution by Great Lakes), and shall instruct the Agent to
distribute as promptly as practicable following the Distribution Date to holders
of record of Great Lakes Common Stock on the Record Date one (1) share of Octel
Common Stock for every four (4) shares of Great Lakes Common Stock and cash in
lieu of fractional shares of Octel Common Stock obtained in the manner provided
in Section 4.2 hereof. Octel agrees to provide to the
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Agent such documentation as the Agent may request in order to effect the
Distribution. All of the shares of Octel Common Stock issued in the
Distribution shall be fully paid, nonassessable and free of preemptive rights.
Section 4.2 Fractional Shares. Except as described below, each
stockholder that receives at least one share of Octel Common Stock in the
Distribution will also receive credit for any fractional interest. If a
stockholder owns fewer than four shares of Great Lakes Common Stock, fractional
shares of Octel Common Stock shall not be issued as part of the Distribution. If
a stockholder owns fewer than four shares of Great Lakes Common Stock, such
stockholder will receive cash in lieu of a fractional share. If a stockholder
requests physical certificates for shares of Octel Common Stock, such
stockholder will receive physical certificates for all whole shares of Octel
Common Stock and cash in lieu of any fractional share interest. Great Lakes and
Octel agree that Great Lakes shall instruct the Agent to determine the number of
whole shares and fractional shares of Octel Common Stock allocable to each
holder of record of Great Lakes Common Stock as of the Record Date and to
aggregate all such fractional share interests for which holders are entitled to
receive cash pursuant to this Section 4.2 into whole shares and sell the whole
shares obtained thereby in the open market at then prevailing prices and to
distribute to each such holder such holder's ratable share of the total proceeds
of such sales (net of any commissions incurred in connection with such sales),
net of any amount required to be withheld under applicable law.
Section 4.3 Actions by Great Lakes and Octel Board.
(a) This Agreement and the Related Agreements are subject
to, and the consummation of the transactions provided for herein or therein
shall only be effected after, (i) approval by the Board of Directors of Great
Lakes and Octel and (ii) the declaration of the Distribution by the Board of
Directors of Great Lakes.
(b) The Board of Directors of Great Lakes, in its sole
discretion, shall establish the Record Date and the Distribution Date and all
appropriate procedures in connection with the Distribution.
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ARTICLE V
INDEMNIFICATION, CLAIMS AND OTHER MATTERS
Section 5.1 Release and Indemnification.
(a) To the extent that the same is lawful, each of Great
Lakes and Octel, on behalf of itself and each of its Affiliates (the
"Releasors"), hereby unconditionally releases and forever discharges the other
party and each of its Affiliates, stockholders, successors and assigns
(individually, a "Releasee" and collectively, "Releasees") from any and all
claims, suits, demands, proceedings, causes of action, orders, obligations,
contracts, agreements, debts, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, controversies, promises, variances, trespasses, damages,
judgments, executions, claims and liabilities whatsoever, whether known or
unknown, suspected or unsuspected, both at law and in equity, which any of the
Releasors now have, have ever had or may hereafter have against the respective
Releasees arising contemporaneously with or prior to the Distribution Date, or
on account of or arising out of any matter, cause or event occurring
contemporaneously with or prior to the Distribution Date; provided, however,
that nothing contained herein shall operate to release any obligations of the
parties arising under this Agreement (including, but not limited to, the
indemnity provisions set forth in Sections 5.1(b) and 5.1(c) hereof), any of the
Related Agreements or any ongoing commercial agreements in existence as of the
date hereof between Great Lakes or its Affiliates and Octel or its Affiliates.
In addition, each party hereby irrevocably covenants to, and to cause its
Affiliates to, refrain from, directly or indirectly, asserting any claim or
demand, or commencing, instituting or causing to be commenced, any proceeding of
any kind against any Releasee, based upon any matter purported to be released in
this Section 5.1(a).
(b) Great Lakes shall indemnify, defend and hold harmless
Octel and each of its directors, officers, employees, agents and Affiliates from
and against any and all Indemnifiable Losses of Octel or any of its Affiliates
arising out of or due to, directly or indirectly, (i) Third Party Claims (as
defined in Section 5.2) in connection with any of the Retained Liabilities, (ii)
Third Party Claims that the information relating to Great Lakes included in the
Information Statement and the Form 10 or the Offering Circular under the
captions set forth on Schedule 5.1(b) hereto or any statements made by Great
Lakes or its Affiliates in any Investor Roadshow or to third parties in
connection with the Distribution or the Financings is false or misleading with
respect to any material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein,
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in light of the circumstances under which they were made, not misleading, (iii)
Third Party Claims that Great Lakes or its Affiliates breached or failed to
perform, or violated, any provision of this Agreement or any of the Related
Agreements which is to be performed or complied with by Great Lakes or its
Affiliates, (iv) any Retained Liability, (v) any breach or failure to perform,
or violation of, any covenant, agreement, assumption, or responsibility of
Great Lakes or any of its Affiliates under this Agreement or any of the Related
Agreements and (vi) any Liabilities incurred by, resulting to or imposed on such
Indemnified Parties relating in any way to Environmental Matters or obligations
under Environmental Laws with respect to which Great Lakes or its Affiliates is
required to be substituted for Octel or its Affiliates after the Distribution
Date as set forth in Section 9.2 hereof.
(c) Octel shall indemnify, defend and hold harmless Great
Lakes and each of its directors, officers, employees, agents and Affiliates from
and against any and all Indemnifiable Losses of Great Lakes or any of its
Affiliates arising out of or due to, directly or indirectly, (i) Third Party
Claims in connection with any of the Assumed Liabilities, (ii) Third Party
Claims that the information included in the Information Statement, the Form 10
or the Offering Circular, other than under the captions set forth on Schedule
5.1(b) hereto, or the information provided, or statements made, by Octel or its
Affiliates in connection with any Investor Roadshow or to third parties in
connection with the Distribution or the Financings, is false or misleading with
respect to any material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, (iii) Third Party
Claims that Octel or its Affiliates breached or failed to perform, or violated,
any provision of this Agreement or any of the Related Agreements which is to be
performed or complied with by Octel or its Affiliates or (iv) (A) any of the
Assumed Liabilities, (B) any breach or failure to perform, or violation of, any
covenant, agreement, assumption, or responsibility of Octel or any of its
Affiliates under this Agreement or any of the Related Agreements or (C) any
Liabilities incurred by, resulting to or imposed on such Indemnified Parties
relating in any way to Environmental Matters or obligations under Environmental
Laws with respect to which Octel or its Affiliates is required to be substituted
for Great Lakes or its Affiliates after the Distribution Date as set forth in
Section 9.1 hereof.
(d) Amounts required to be paid pursuant to this Article V
are hereinafter sometimes collectively called "Indemnity Payments" and
individually called an "Indemnity Payment." The amount which any party (an
"Indemnifying Party") is required to pay to any other party (an "Indemnified
Party") pursuant to
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Section 5.1(b), Section 5.1(c) or any other applicable indemnity provision
contained in this Agreement shall be reduced (including, without limitation,
retroactively) by any insurance proceeds and other amounts actually recovered by
such Indemnified Party in reduction of the related Indemnifiable Loss. The
foregoing notwithstanding, nothing in this Section 5.1(d) shall grant to Octel
or its Affiliates any direct or indirect rights or benefits to insurance
coverage with respect to which Octel is not otherwise entitled under Article X
hereof nor require Great Lakes or its Affiliates to make any claim for insurance
coverage unless and to the extent that Octel would otherwise be entitled to have
Great Lakes make a claim under Article X hereof.
(e) Indemnification obligations contained elsewhere in
this Agreement shall be subject to the provisions of this Article V.
Section 5.2 Procedure for Indemnification.
(a) If either party shall receive notice of any claim or
Action brought, asserted, commenced or pursued by any person or entity not a
party to this Agreement or an Affiliate thereof (a "Third Party Claim"), with
respect to which the other party is or may be obligated to make an Indemnity
Payment, it shall give such other party prompt notice thereof (including any
pleadings relating thereto) after becoming aware of such Third Party Claim,
specifying in such reasonable detail as is known to it, the nature of such Third
Party Claim and the amount or estimated amount thereof to the extent then
feasible (which estimate shall not be conclusive of the final amount of such
claim); provided, however, that the failure of a party to give notice as
provided in this Section 5.2 shall not relieve the other party of its
indemnification obligations under this Article V, except and only to the
extent that such other party is actually prejudiced by such failure to give
notice.
(b) (i) For any Third Party Claim concerning which notice
is required to be given, and, in fact, given, under subparagraph (a) of this
Section 5.2, other than a Third Party Claim that constitutes the Octel
Liabilities, the Indemnifying Party shall defend in a timely manner, to the
extent permitted by law, such Third Party Claim through counsel appointed by the
Indemnifying Party and reasonably acceptable to the Indemnified Party. Once an
Indemnifying Party has commenced its defense of an Indemnified Party, it cannot
withdraw from such defense until conclusion of the matter, unless the
Indemnified Party consents to the withdrawal.
(ii) For any Third Party Claim concerning
which notice is required to be given under subparagraph (a) of this
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Section 5.2 and that constitutes Octel Liabilities, Great Lakes shall
have the right, but not the obligation, to defend such claim as if it
were an "Indemnifying Party" as set forth in this Section 5.2(b) and, if
Great Lakes exercises such rights, Octel shall have the rights of an
"Indemnified Party" as set forth in this Section 5.2(b) and Section
5.2(c); provided, however, that Octel shall remain responsible for
payment of the Octel Liabilities with respect to any such claim.
(c) If a party responds to a notice of a Third Party Claim
by denying its obligation to indemnify the person or entity claiming a right of
defense and indemnification under this Agreement ("Indemnification Claimant"),
or if the Indemnifying Party fails to defend in a timely and competent manner,
the Indemnified Party shall be entitled to defend such Third Party Claim through
counsel appointed by it. In addition, if it is later determined, through
procedures referenced in Article XI of this Agreement, or agreement of the
parties, that said party wrongfully denied such claim, or the Indemnifying Party
failed to timely defend, then the Indemnifying Party shall (i) reimburse the
Indemnified Party for all costs and expenses (other than salaries of officers
and employees) incurred reasonably by the Indemnified Party in connection with
its defense of such Third Party Claim and pay the Indemnified Party interest at
the prime rate, as published by a national banking institution, with respect to
any amounts paid by the Indemnified Party in satisfaction of such Third Party
Claim and (ii) be estopped from challenging a judgment, order, settlement,
compromise, or consent judgment resolving the Third Party Claim entered into in
good faith by the Indemnified Party (if such claim has been resolved prior to
the conclusion of the proceeding between the Indemnified Party and Indemnifying
Party). An Indemnifying Party, after initially rejecting a claim for defense or
indemnification by an Indemnification Claimant, may defend and indemnify the
Indemnification Claimant, at any time prior to the resolution of said Third
Party Claim, for such claim; provided, however, that (x) the Indemnifying Party,
upon assuming the defense, reimburses the Indemnified Party for all costs and
expenses (other than salaries of officers and employees) incurred reasonably by
the Indemnified Party in connection with its defense of such Third Party Claim
up to the time the Indemnifying Party assumes control of the defense of such
claim (including costs incurred in the transition of the defense from the
Indemnified Party to the Indemnifying Party) and (y) the assumption of the
defense of the Third Party Claim shall not prejudice or cause harm to the
Indemnified Party.
(d) With respect to any Third Party Claim relating to any
matter subject to a claim for indemnification hereunder, no party shall enter
into any
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compromise or settlement or consent to the entry of any judgment which (i) does
not include as a term thereof the giving by the third party of a release to the
Indemnifying Party from all further liability concerning such Third Party Claim
on terms no less favorable than those obtained by the Indemnified Party or (ii)
imposes any obligation on the Indemnified Party without said Indemnified Party's
written consent (such consent not to be unreasonably withheld), except an
obligation to pay money which the Indemnifying Party has agreed to pay on behalf
of the Indemnified Party. In the event that an Indemnified Party enters into any
such compromise, settlement or consent without the written consent (such consent
not to be unreasonably withheld) of the Indemnifying Party (other than as
contemplated by Section 5.2(c)), the entry of such compromise, settlement or
consent shall relieve the Indemnifying Party of its indemnification obligation
related to the claims underlying such compromise, settlement or consent.
(e) Upon final judgment, determination, settlement or
compromise of any Third Party Claim, and unless otherwise agreed by the parties
in writing, the Indemnifying Party shall pay promptly on behalf of the
Indemnified Party, or to the Indemnified Party in reimbursement of any amount
theretofore required to be paid by it, the amount so determined by final
judgment, determination, settlement or compromise. Upon the payment in full by
the Indemnifying Party of such amount, the Indemnifying Party shall succeed to
the rights of such Indemnified Party to the extent not waived in settlement,
against the third party who made such Third Party Claim and any other person who
may have been liable to the Indemnified Party with respect to the indemnified
matter.
(f) In connection with defending against Third Party
Claims, the parties shall cooperate with and assist each other by making
available all employees, books, records, communications, documents, items and
matters within their knowledge, possession or control that are necessary,
appropriate or reasonably deemed relevant with respect to defense of such
claims; provided, however, that nothing in this subparagraph (f) shall be deemed
to require the waiver of any privilege, including the attorney-client privilege,
or protection afforded by the attorney work product doctrine. In addition,
regardless of the party actually defending a Third Party Claim for which there
is an indemnity obligation under Section 5.1 of this Agreement, the parties
shall give each other regular status reports relating to such action with detail
sufficient to permit the other party to assert and protect its rights and
obligations under this Agreement.
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(g) The provisions of this Section 5.2 shall survive in
perpetuity and shall be the exclusive procedures for any claims subject to the
provisions of Section 5.1(b), (c) or (e) hereof.
Section 5.3 Indemnifiable Losses under Sections 5.1(b)(ii) and
5.1(c)(ii). If the indemnification provided for in Sections 5.1(b)(ii) and
5.1(c)(ii) is unavailable under law or SEC policy to an Indemnified Party in
respect of any Indemnifiable Loss arising out of or related to information
contained in the Information Statement, the Form 10, the Offering Circular or
statements made in any Investor Roadshow or to third parties in connection with
the Distribution or the Financings, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Indemnifiable Loss, in
such proportion as is appropriate to reflect the relative fault of Octel, each
of its directors, each of its officers who has signed any registration statement
and each Affiliate of Octel (an "Octel Party") on the one hand and Great Lakes
and each Affiliate of Great Lakes (a "Great Lakes Party") on the other hand in
connection with the information, statements or omissions which resulted in such
Indemnifiable Loss. The relative fault of an Octel Party on the one hand and of
a Great Lakes Party on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by an Octel Party on the one hand or a Great Lakes Party on
the other hand.
Section 5.4 Indemnifiable Losses under Sections 5.1(b)(iii),
5.1(b)(v), 5.1(c)(iii) and 5.1(c)(iv)(B). Under Sections 5.1(b)(iii), 5.1(b)(v),
5.1(c)(iii) and 5.1(c)(iv)(B), any claim on account of an Indemnifiable Loss
which results from a breach of this Agreement or any of the Related Agreements
shall be asserted promptly by written notice from the Indemnified Party to the
Indemnifying Party. To the extent that the Indemnifying Party does not receive
such prompt notice, the Indemnifying Party shall not be responsible for that
portion (but only that portion) of such Indemnifiable Loss, if any, which shall
have resulted from such delay. The Indemnified Party's written notice shall
contain such information as the Indemnified Party has regarding the alleged
breach. Such Indemnifying Party shall have a period of sixty (60) days (or such
shorter time period as may be required by law as indicated by the Indemnified
Party in the written notice) within which to respond thereto. If such
Indemnifying Party does not respond within such 60-day (or lesser) period, such
Indemnifying Party shall be deemed to have accepted responsibility to make
payment for the amount of the Indemnifiable Loss and shall have no further right
to contest the validity of such claim. If such Indemnifying Party does
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respond within such 60-day (or lesser) period and rejects such claim in whole or
in part, such Indemnified Party shall be free to pursue resolution as provided
in Article XI hereof.
Section 5.5 No Beneficiaries. Except to the extent expressly
provided otherwise in this Article V, and except with respect to the holders of
the Lenders' Liens, the indemnification provided for by this Article V shall not
inure to the benefit of any third party or parties and shall not relieve any
insurer who would otherwise be obligated to pay any claim of the responsibility
with respect thereto or, solely by virtue of the indemnification provisions
hereof, provide any subrogation rights with respect thereto and each party
agrees to waive such rights against the other to the fullest extent permitted.
Section 5.6 Named Parties. The parties hereto acknowledge that it
may not be feasible to substitute Octel (or one of its Affiliates) or Great
Lakes (or one of its Affiliates), as the case may be, for the other as a named
party in Actions, whether domestic or foreign, constituting Assumed Liabilities
or Retained Liabilities, as the case may be. In such event, Great Lakes (or one
of its Affiliates) or Octel (or one of its Affiliates), as the case may be,
shall remain as a named party, but, following the Distribution Date, Octel (or
one of its Affiliates) or Great Lakes (or one of its Affiliates), as the case
may be, shall assume the defense of any such Action in accordance with the
provisions of Section 5.2 hereof and the parties and their Affiliates shall
cooperate as contemplated by such Section 5.2 and Article VII hereof.
ARTICLE VI
CERTAIN ADDITIONAL MATTERS
Section 6.1 Conveyancing and Assumption Instruments. In
connection with the transfer, conveyance, assignment and delivery of the
Transferred Businesses (including, without limitation, the Transferred Assets),
the Excluded Assets (including, without limitation, the Excluded Businesses) and
the assumption of Assumed Liabilities contemplated by this Agreement, Great
Lakes and Octel agree to execute or cause to be executed by the appropriate
parties and to deliver to each other, as appropriate, the Conveyancing and
Assumption Instruments.
Section 6.2 Representations and Warranties.
(a) Great Lakes represents and warrants to Octel that:
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(i) as of the Great Lakes Transfer Date, the
authorized capital stock of Octel America, Inc. consisted of 1,000
shares of common stock, no par value, of which 1,000 shares were
issued and outstanding;
(ii) as of the Great Lakes Transfer Date,
Great Lakes or its Affiliates was the record and beneficial owner of all
of the issued and outstanding shares of Octel America, Inc. and The
Associated Octel Company Limited (other than those shares of The
Associated Octel Company Limited held by Octel America, Inc.) and had
good and marketable title thereto, free and clear of all liens, claims,
charges, pledges or encumbrances and had the absolute right to assign,
transfer and deliver such shares (other than those shares of The
Associated Octel Company Limited held by Octel America, Inc.), and had
not pledged or encumbered its interest in Octel Associates; and Great
Lakes delivered or, prior to the Distribution Date, shall deliver, to
Octel a true, complete, accurate and up-to-date copy of the certificate
of incorporation, by-laws, minutes and stock ledger of Octel America,
Inc;
(iii) as of the Great Lakes Transfer Date,
there were no outstanding options, warrants, conversion or other rights
or other agreements of any kind (other than this Agreement) for the
purchase or acquisition from, or the sale or issuance by, Great Lakes or
Octel America, Inc. of any shares of capital stock of Octel America,
Inc.;
(iv) as of the Great Lakes Transfer Date,
Great Lakes or a Great Lakes Entity was the record and beneficial owner
of the Fuel Detergent Plant and had good and marketable title thereto,
free and clear of all material liens, claims, charges, pledges or
encumbrances, other than restrictions on title contained in the title
documents relating thereto, and had the absolute right to assign,
transfer and deliver the Fuel Detergent Plant;
(v) as of the date hereof, Great Lakes has,
and on the Distribution Date Great Lakes will have full corporate power
and authority to execute and deliver each of this Agreement
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and, to the extent it is a party thereto, the Related Agreements and to
consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the Related Agreements to
be entered into prior to the Distribution Date by Great Lakes has been
duly and validly approved by the Board of Directors of Great Lakes. This
Agreement and each of the Related Agreements has been duly and validly
executed and constitutes (assuming due authorization, execution and
delivery by Octel) a valid and binding obligation of Great Lakes,
enforceable against Great Lakes in accordance with their respective
terms, except as enforcement may be limited by any bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies
generally;
(vi) as of the date hereof and the Distribution
Date, neither the execution and delivery of this Agreement or any
of the Related Agreements, nor the consummation by Great Lakes of the
transactions contemplated hereby or thereby, nor compliance by Great
Lakes with any of the terms hereof or thereof, will (A) violate any
provisions of the Restated Certificate of Incorporation or By-Laws of
Great Lakes, or (B) (1) violate any statute, code, ordinance, rule,
regulation, decree or injunction, or published judgment, order or writ,
applicable to Great Lakes or any of its properties or assets, or (2)
violate, conflict with, result in a breach of any provision of or the
loss of any benefit under, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default under),
result in the termination of or a right of termination or cancellation
under, accelerate the performance required by, or result in the creation
of any lien, pledge, security interest, charge or other encumbrance upon
any of the properties or assets of Great Lakes under the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument or obligation to
which Great Lakes is a party, or by which it or any of its properties or
assets may be bound or affected, except, in the case of clause (B)
above, for such violations, conflicts, breaches or defaults which either
individually or in the aggregate will not have a Material Adverse Effect
on Great Lakes; and
(vii) as of the date hereof, to the best of
Great Lakes' knowledge, neither Great Lakes nor any of its Affiliates
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is in breach of any material obligation under any agreement listed on
Annex I, Schedule 1 hereto nor have they received notice of any breach
which is currently outstanding.
(b) Octel represents and warrants to Great Lakes that:
(i) as of the Octel Transfer Date, Octel or
its Affiliates was the record and beneficial owner of the Excluded
Assets and had good and marketable title thereto, free and clear of all
material liens, claims, charges, pledges or encumbrances (other than
restrictions on title contained in the title documents with respect
thereto), and had the absolute right to assign, transfer and deliver the
Excluded Assets;
(ii) as of the date hereof, Octel has, and on
the Distribution Date Octel will have full corporate power and upon
stockholder approval authority to execute and deliver each of this
Agreement and the Related Agreements and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement and the Related Agreements to be executed on or prior to the
Distribution Date by Octel has been duly and validly approved by the
Board of Directors of Octel. This Agreement and each of the Related
Agreements has been duly and validly executed and constitutes (assuming
due authorization, execution and delivery by Great Lakes) a valid and
binding obligation of Octel, enforceable against Octel in accordance
with their respective terms, except as enforcement may be limited by any
bankruptcy, insolvency and similar laws affecting creditors' rights and
remedies generally; and
(iii) as of the date hereof and the Distribution
Date, neither the execution and delivery of this Agreement or any
of the Related Agreements, nor the consummation by Octel of the
transactions contemplated hereby or thereby, nor compliance by Octel
with any of the terms hereof or thereof, will (A) violate any provisions
of the Certificate of Incorporation or By-Laws of Octel, or (B) (1)
violate any statute, code, ordinance, rule, regulation, decree or
injunction, or published judgment, order or writ, applicable to Octel or
any of its properties or assets, or (2) violate, conflict with, result
in a
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breach of any provision of or the loss of any benefit under, constitute
a default (or an event which, with notice or lapse of time, or both,
would constitute a default under), result in the termination of or a
right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any lien, pledge, security
interest, charge or other encumbrance upon any of the properties or
assets of Octel under the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which Octel or any of its Affiliates
is a party, or by which it or any of its properties or assets may be
bound or affected, except, in the case of clause (B) above, for such
violations, conflicts, breaches or defaults which either individually
or in the aggregate will not have a Material Adverse Effect on Octel.
(c) Except as provided in Section 6.2(a) hereof, Octel
understands and agrees that Great Lakes is not in this Agreement or in any other
agreement or document contemplated by this Agreement representing or warranting
in any way (i) as to the condition, value or freedom from encumbrance of, or any
other matter concerning, the Transferred Businesses or any Transferred Assets or
(ii) as to the legal sufficiency to convey title to any Transferred Assets or
the execution, delivery and filing of the Conveyancing Instruments, IT BEING
AGREED AND UNDERSTOOD THAT THE TRANSFERRED BUSINESSES AND THE TRANSFERRED
ASSETS ARE BEING TRANSFERRED "AS IS, WHERE IS" and without any representation or
warranty of any kind (express or implied) and that Octel shall bear the economic
and legal risk that any conveyances of such assets or businesses shall prove to
be insufficient or that Octel's title to any such assets shall be other than
good and marketable and free from encumbrances. Similarly, Octel understands and
agrees that Great Lakes is not in this Agreement or in any other agreement or
document contemplated by this Agreement, representing or warranting in any way
that the obtaining of the consents or approvals, the execution and delivery of
any amendatory agreements and the making of the filings and applications
contemplated by this Agreement shall satisfy the provisions of all applicable
agreements or the requirements of all applicable laws or judgments, it being
understood and agreed that, subject to Section 6.3 hereof, Octel shall bear the
economic and legal risk that any necessary consents or approvals are not
obtained or that any requirements of law or judgments are not complied with. The
foregoing, however, shall not limit any responsibilities which Great Lakes may
have to use its commercially reasonable efforts to effect the transfer of the
Transferred Businesses, includ-
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ing, without limitation, the Transferred Assets, pursuant to the terms of this
Agreement.
(d) Except as provided in Section 6.2(b) hereof, and
except with respect to the Octel Liabilities, Great Lakes understands and agrees
that Octel is not in this Agreement or in any other agreement or document
contemplated by this Agreement representing or warranting in any way (i) as to
the condition, value or freedom from encumbrance of, or any other matter
concerning, the Excluded Businesses or any Excluded Assets or (ii) as to the
legal sufficiency to convey title to any Excluded Assets or the execution,
delivery and filing of the Conveyancing Instruments, IT BEING AGREED AND
UNDERSTOOD THAT THE EXCLUDED BUSINESSES AND THE EXCLUDED ASSETS ARE BEING
TRANSFERRED "AS IS, WHERE IS" and without any representation or warranty of any
kind (express or implied) and that Great Lakes shall bear the economic and legal
risk that any conveyances of such assets or businesses shall prove to be
insufficient or that Great Lakes' title to any such assets shall be other than
good and marketable and free from encumbrances. Similarly, Great Lakes
understands and agrees that Octel is not in this Agreement or in any other
agreement or document contemplated by this Agreement, representing or warranting
in any way that the obtaining of the consents or approvals, the execution and
delivery of any amendatory agreements and the making of the filings and
applications contemplated by this Agreement shall satisfy the provisions of all
applicable agreements or the requirements of all applicable laws or judgments,
it being understood and agreed that, subject to Section 6.3 hereof, Great Lakes
shall bear the economic and legal risk that any necessary consents or approvals
are not obtained or that any requirements of law or judgments are not complied
with. The foregoing, however, shall not limit any responsibilities which Octel
may have to use its commercially reasonable efforts to effect the transfer of
the Excluded Businesses, including, without limitation, the Excluded Assets,
pursuant to the terms of this Agreement.
Section 6.3 Further Assurances; Subsequent Transfers.
(a) Each of Great Lakes and Octel shall execute and
deliver such further instruments of conveyance, transfer and assignment and
shall take such other actions as each of them may reasonably request of the
other, both before and after the Distribution Date, in order to effectuate the
purposes of this Agreement and to carry out the terms hereof. Without limiting
the generality of the foregoing, at any time and from time to time after the
Distribution Date, at the request of Octel and without further consideration,
Great Lakes shall execute and
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deliver to Octel such other instruments of transfer, conveyance, assignment and
confirmation and take such action as Octel may reasonably deem necessary or
desirable in order to more effectively transfer, convey and assign to Octel and
to confirm Octel's title to all of the Transferred Businesses and the
Transferred Assets, to put Octel in actual possession and operating control
thereof and to permit Octel to exercise all rights with respect thereto
(including, without limitation, rights under contracts and other arrangements as
to which the consent of any third party to the transfer thereof shall not have
previously been obtained). Octel shall execute and deliver to Great Lakes all
instruments, undertakings or other documents and take such other action as Great
Lakes may reasonably deem necessary or desirable in order to have Octel fully
assume and discharge the Assumed Liabilities and relieve Great Lakes of any
Liability or obligations with respect thereto and evidence the same to third
parties. In addition, at any time and from time to time after the Distribution
Date, at the request of Great Lakes and without further consideration, Octel
shall execute and deliver to Great Lakes such other instruments of transfer,
conveyance, assignment and confirmation and take such action as Great Lakes may
reasonably deem necessary or desirable in order to more effectively transfer,
convey and assign to Great Lakes and to confirm Great Lakes' title to all of the
Excluded Businesses and the Excluded Assets, to put Great Lakes in actual
possession and operating control thereof and to permit Great Lakes to exercise
all rights with respect thereto (including, without limitation, rights under
contracts and other arrangements as to which the consent of any third party to
the transfer thereof shall not have previously been obtained). Great Lakes shall
execute and deliver all instruments, undertakings or other documents and take
such other action as Octel may reasonably deem necessary in order to have Great
Lakes fully assume and discharge the Retained Liabilities, and to relieve Octel
of any Liability or obligation with respect thereto and evidence the same to
third parties. Notwithstanding the foregoing, Great Lakes and Octel shall not be
obligated, in connection with the foregoing, to expend monies other than
reasonable out-of-pocket expenses and attorneys' fees.
(b) Great Lakes and Octel shall use their commercially
reasonable efforts to obtain any consent, approval or amendment required to
novate and/or assign all agreements, leases, licenses and other rights of any
nature whatsoever relating to the Transferred Businesses, including, without
limitation, the Transferred Assets, to Octel or Affiliates of Octel; provided,
however, that Great Lakes and its Affiliates shall not be obligated to pay any
consideration therefor (except for filing fees and other administrative charges
and except as otherwise specifically provided herein) to the third party from
whom such consents, approvals and amendments are requested. In the event and to
the extent that Great Lakes or
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any of its Affiliates is unable to obtain any such required consent, approval or
amendment, (i) Great Lakes or any such Affiliate shall continue to be bound
thereby and (ii) unless not permitted by law or the terms thereof, Octel or any
of its Affiliates shall pay, perform and discharge fully all the obligations of
Great Lakes or its Affiliate thereunder after the Distribution Date and
indemnify Great Lakes or its Affiliate for all Indemnifiable Losses arising out
of such performance by Octel or its Affiliates or any claims by third parties
thereunder. Great Lakes or its Affiliate shall, without further consideration
therefor, pay and remit to Octel or its Affiliates promptly all monies, rights
and other considerations received in respect of such performance. Great Lakes or
any of its Affiliates shall exercise or exploit its rights and options under all
such agreements, leases, licenses and other rights and commitments referred to
in this Section 6.3(b) only as reasonably directed by Octel and at Octel's
expense. If and when any such consent shall be obtained or such agreement,
lease, license or other right shall otherwise become assignable or able to be
novated, Great Lakes or any of its Affiliates shall promptly assign and novate
all its rights and obligations thereunder to Octel or any of its Affiliates
without payment of further consideration and Octel or any of its Affiliates
shall, without the payment of any further consideration therefor, assume such
rights and obligations. To the extent that the assignment or novation of any
contract or agreement (or their proceeds) pursuant to this Section 6.3 is
prohibited by law, the assignment and novation provisions of this Section shall
operate to create a subcontract with Octel or any of its Affiliates to perform
each relevant unassignable contract or agreement of Great Lakes or any of its
Affiliates at a subcontract price equal to the monies, rights and other
considerations received by Great Lakes or its Affiliates with respect to the
performance by Octel or any of its Affiliates under such subcontract.
(c) Great Lakes and Octel shall use their commercially
reasonable efforts to obtain any consent, approval or amendment required to
novate and/or assign all agreements, leases, licenses and other rights of any
nature whatsoever relating to the Excluded Assets, including, without
limitation, the Excluded Businesses, to Great Lakes or Affiliates of Great
Lakes; provided, however, that Octel and its Affiliates shall not be obligated
to pay any consideration therefor (except for filing fees and other
administrative charges and except as otherwise specifically provided herein) to
the third party from whom such consents, approvals and amendments are requested.
In the event and to the extent that Octel or its Affiliates is unable to obtain
any such required consent, approval or amendment, (i) Octel or its Affiliates
shall continue to be bound thereby and (ii) unless not permitted by law or the
terms thereof, Great Lakes or its Affiliates shall pay, perform and discharge
fully all the obligations of Octel or its Affiliates thereunder after the
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Distribution Date and indemnify Octel or its Affiliates for all Indemnifiable
Losses arising out of such performance by Great Lakes or its Affiliates or any
claims by third parties thereunder (other than the Octel Liabilities). Octel
shall, without further consideration therefor, pay and remit to Great Lakes
promptly all monies, rights and other considerations received in respect of such
performance. Octel or its Affiliates shall exercise or exploit its rights and
options under all such agreements, leases, licenses and other rights and
commitments referred to in this Section 6.3(c) only as reasonably directed by
Great Lakes and at Great Lakes' expense. If and when any such consent shall be
obtained or such agreement, lease, license or other right shall otherwise become
assignable or able to be novated, Octel or its Affiliates shall promptly assign
and novate all its rights and obligations thereunder to Great Lakes or its
Affiliates without payment of further consideration and Great Lakes or its
Affiliates shall, without the payment of any further consideration therefor,
assume such rights and obligations. To the extent that the assignment of any
contract or agreement (or their proceeds) pursuant to this Section 6.3 is
prohibited by law, the assignment provisions of this Section shall operate to
create a subcontract with Great Lakes or its Affiliates to perform each relevant
unassignable contract or agreement of Octel or its Affiliates at a subcontract
price equal to the monies, rights and other considerations received by Octel
with respect to the performance by Great Lakes or its Affiliates under such
subcontract.
(d) (i) All Bids, Quotations and Proposals included in the
Transferred Businesses or Transferred Assets shall be transferred to Octel to
the extent permitted by law. Great Lakes and Octel shall work together and use
all reasonable efforts to preserve such Bids, Quotations and Proposals and
facilitate the award of contracts pursuant thereto consistent with applicable
laws and regulations. Any contracts awarded pursuant to an outstanding Bid,
Quotation or Proposal shall be considered an agreement and treated in the same
manner as provided for in the last two sentences of Section 6.3(b) hereof.
(ii) All Excluded Bids, Quotations and
included in the Excluded Businesses or Excluded Assets shall be
transferred to Great Lakes to the extent permitted by law. Great Lakes
and Octel will work together and use all reasonable efforts to preserve
such Excluded Bids, Quotations and Proposals and facilitate the award of
contracts pursuant thereto consistent with applicable laws and
regulations. Any contacts awarded pursuant to an outstanding Excluded
Bid, Quotation or Proposal shall be considered an
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agreement and treated in the same manner as provided for in the last two
sentences of Section 6.3(c) hereof.
Section 6.4 Octel Officers and Directors. Octel and Great Lakes
shall take all actions which may be required to elect or otherwise appoint, as
of the Distribution Date, those individuals designated in the Information
Statement to be directors or officers of Octel.
Section 6.5 Resignations. On or prior to the Distribution Date,
Great Lakes shall cause all directors, officers and employees of Great Lakes or
its Affiliates who are not designated in the Information Statement to be
directors and officers of Octel following the Distribution Date to resign from
their positions as directors or officers of Octel.
Section 6.6 Certain Intercompany Arrangements. Following the
Distribution Date, the parties shall discuss in good faith the provision of any
services and products to be provided by the other, but which inadvertently were
not the subject of a written agreement. Nothing in this Section 6.6, however,
shall require or authorize Great Lakes or Octel to provide and charge each other
for any services other than on the terms and conditions specified in the
Corporate Services Transition Agreement or the other Related Agreements.
Section 6.7 Related Agreements. At or prior to the Distribution
Date, Great Lakes and Octel shall enter, and shall cause their respective
Affiliates to enter (if applicable), into the Related Agreements.
Section 6.8 Signs; Use of Corporate Names.
(a) Within 90 days after the Distribution Date, Octel, at
its own expense, shall remove (or, if necessary, cover up) any and all exterior
and interior signs and identifiers which refer or pertain to Great Lakes at the
Transferred Businesses. After such 90-day period, Octel shall not, without the
prior written consent of Great Lakes, use or display the name "Great Lakes" or
other trademarks, trade names or their identifiers owned by or licensed to Great
Lakes except to the extent such marks, names and identifiers have been assigned
or licensed to Octel. Octel shall indemnify and hold harmless Great Lakes for
any Liabilities incurred by Great Lakes as a result of the use of such
trademarks, trade names and identifiers by Octel, which indemnification
obligation shall be governed by Article V hereof.
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(b) Within 90 days after the Distribution Date, Great
Lakes, at its own expense, shall remove (or, if necessary, cover up) any and all
exterior and interior signs and identifiers which refer or pertain to Octel at
the Excluded Businesses. After such 90-day period, Great Lakes shall not,
without the prior written consent of Octel, use or display the name "Octel" or
other trademarks, trade names or their identifiers owned by or licensed to Octel
except to the extent such marks, names and identifiers have been assigned or
licensed to Great Lakes. Great Lakes shall indemnify and hold harmless Octel for
any Liabilities incurred by Octel as a result of the use of such trademarks,
trade names and identifiers by Great Lakes, which indemnification obligation
shall be governed by Article V hereof.
Section 6.9 Supplies and Documents.
(a) For a period of six months following the Distribution
Date, Octel shall have the right to use existing supplies and documents
(including, but not limited to forms, labels, shipping materials, packaging
materials, catalogues, sales brochures, operating manuals, instructional
documents and similar materials, and advertising material) being transferred to
it pursuant to this Agreement which have imprinted thereon the name "Great
Lakes" or trademarks, logotypes or variations comprising the name "Great
Lakes." At the end of such time period, Octel shall destroy all such remaining
supplies and documents. In addition, Octel shall cause the name of any of its
subsidiaries or Affiliates containing the phrase "Great Lakes" to be changed to
delete any such reference. Octel shall indemnify and hold harmless Great Lakes
for any Liabilities incurred by Great Lakes as a result of the use of such
supplies and documents by Octel, which indemnification obligations shall be
governed by Article V hereof.
(b) For a period of six months following the Distribution
Date, Great Lakes shall have the right to use existing supplies and documents
(including, but not limited to forms, labels, shipping materials, packaging
materials, catalogues, sales brochures, operating manuals, instructional
documents and similar materials, and advertising material) being transferred to
it pursuant to this Agreement which have imprinted thereon the name "Octel" or
trademarks, logotypes or variations comprising the name "Octel." At the end of
such time period, Great Lakes shall destroy all such remaining supplies and
documents. In addition, Great Lakes shall cause the name of any of its
subsidiaries or Affiliates containing the phrase "Octel" to be changed to delete
any such reference. Great Lakes shall indemnify and hold harmless Octel for any
Liabilities incurred by Octel as a result of the use of such
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supplies and documents by Great Lakes, which indemnification obligations shall
be governed by Article V hereof.
Section 6.10 Letters of Credit.
(a) Octel shall use its commercially reasonable efforts to
substitute Octel letters of credit for the Great Lakes letters of credit, if
any, and obtain the release of any Great Lakes guarantees, outstanding on the
Distribution Date with respect to obligations of the Transferred Businesses. In
addition, Octel shall reimburse Great Lakes for any costs incurred or funds
advanced by Great Lakes with respect to any such letters of credit within thirty
(30) days following the date of such incurrence.
(b) Great Lakes shall use its commercially reasonable
efforts to substitute Great Lakes letters of credit for the Octel letters of
credit, if any, and obtain the release of any Octel guarantees, outstanding on
the Distribution Date with respect to obligations of the Excluded Businesses. In
addition, Great Lakes shall reimburse Octel for any costs incurred or funds
advanced by Octel with respect to any such letters of credit within thirty (30)
days following the date of such incurrence.
Section 6.11 Partnership Agreement. Octel, on behalf of itself
and each of its Affiliates (the "Partnership Releasors"), hereby agrees that
Great Lakes and each of its Affiliates, stockholders, successors and assigns
(the "Great Lakes Releasees") shall not be liable to any of the Partnership
Releasors for any claims, suits, demands, proceedings, causes of action or any
other Liabilities whatsoever, whether arising directly or indirectly before, on
or after the Distribution Date that would not have arisen but for any amendment,
alteration, modification or other change whatsoever to (a) the Partnership
Agreement, or any waiver of the terms thereof by any party thereto, or (b) the
capital and/or current accounts of the partners in Octel Associates or their
predecessors or successors in title consequent upon any revaluation of the
goodwill of Octel Associates effected pursuant to the terms of the Partnership
Agreement.
Section 6.12 DBE Storage Tank. Prior to the date that the
dedicated dibromoethane storage tank which is the subject of the DBE Lease (the
"DBE Storage Tank") is delivered to Great Lakes (such date to be as soon as
reasonably practicable taking into account Octel's available dibromoethane
storage capacity at its Ellesmere Port facility), Octel shall take, or shall
cause to be taken, at its own
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expense, any and all such measures as shall be necessary to ensure that DBE
Storage Tank has been properly drained of Octel's off-specification
dibromoethane and cleaned to the extent necessary for use by Great Lakes for
storage of on-specification dibromoethane.
ARTICLE VII
ACCESS TO INFORMATION AND SERVICES
Section 7.1 Provision of Corporate Records.
(a) As soon as practicable after the Distribution Date,
Great Lakes shall deliver to Octel all Transferred Businesses Books and Records
in its possession. Upon such delivery, such Transferred Businesses Books and
Records shall become the property of Octel, but shall be retained and made
available (upon reasonable notice during normal business hours) to Great Lakes
for review and duplication and Great Lakes shall have the right to retain copies
of all or any portion of such Transferred Businesses Books and Records from and
after the Distribution Date as it shall deem necessary or appropriate. The costs
of duplicating any Transferred Businesses Books and Records shall be borne by
Great Lakes. At such time as Octel decides to dispose of any Transferred
Businesses Books and Records, it shall provide Great Lakes with reasonable
notice of such decision and provide Great Lakes the opportunity to assume
control of or duplicate any Transferred Businesses Books and Records which it
determines are necessary. The foregoing notwithstanding, technical notebooks and
other Transferred Businesses Books and Records subject to the Tax Disaffiliation
Agreement shall be governed by the terms of such agreement.
(b) As soon as practicable after the Distribution Date,
Octel shall deliver to Great Lakes all Excluded Books and Records in its
possession. Upon such delivery, such Excluded Books and Records shall become the
property of Great Lakes, but shall be retained and made available (upon
reasonable notice during normal business hours) to Octel for review and
duplication and Octel shall have the right to retain copies of all or any
portion of such Excluded Books and Records from and after the Distribution Date
as it shall deem necessary or appropriate. The costs of duplicating any Excluded
Books and Records shall be borne by Octel. At such time as Great Lakes decides
to dispose of any Excluded Books and Records, it shall provide Octel with
reasonable notice of such decision and provide Octel the opportunity to assume
control of or duplicate any Excluded Books and Records which it determines are
necessary. The foregoing notwithstanding, technical notebooks and
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other Excluded Books and Records subject to the Tax Disaffiliation Agreement
shall be governed by the terms of such agreement.
Section 7.2 Access to Information. From and after the
Distribution Date, Great Lakes and Octel shall afford to each other and to each
other's authorized accountants, counsel and other designated representatives
reasonable access and duplicating rights (with copying costs to be borne by the
requesting party) during normal business hours to all Transferred Businesses
Books and Records, all Excluded Books and Records and all documents,
communications, items and matters (collectively, "Information") within each
other's knowledge, possession or control relating to the Transferred Assets, the
Transferred Businesses, the Assumed Liabilities, the Retained Liabilities, the
Excluded Businesses, the Excluded Assets, the Transferred Great Lakes Employees
and the Transferred Octel Employees, insofar as such access is reasonably
required by Great Lakes or Octel, as the case may be (and shall use reasonable
efforts to cause persons or firms possessing relevant Information to give
similar access). Information may be requested under this Article VII for,
without limitation, audit, accounting, claims, Actions and tax purposes, as well
as for purposes of fulfilling disclosure and reporting obligations, but not for
competitive purposes.
Section 7.3 Production of Witnesses and Individuals. From and
after the Distribution Date, Great Lakes and Octel shall use reasonable efforts
to make available to each other, upon written request, its officers, directors,
employees and agents for fact finding, consultation and interviews and as
witnesses to the extent that any such person may reasonably be required in
connection with any Actions in which the requesting party may from time to time
be involved relating to the conduct of the Transferred Businesses, the
Non-Transferred Businesses and the Excluded Businesses. Except as otherwise
agreed between the parties or as provided in Article V hereof or pursuant to the
Joint Representation and Defense Agreement, Great Lakes and Octel agree to
reimburse each other for reasonable out-of-pocket expenses, labor charges and
salary payments incurred by the other in connection with providing individuals
and witnesses pursuant to this Section 7.3.
Section 7.4 Retention of Records. Except when a longer retention
period is otherwise required by law or agreed to by both parties in writing,
Great Lakes and Octel shall retain, for a period of seven (7) years from the
later of the Distribution Date and the date such Information is created, all
material Information relating to the Transferred Businesses, the Transferred
Assets, the Excluded Businesses, the Excluded Assets, the Assumed Liabilities,
the Retained Liabilities, the
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Transferred Great Lakes Employees and the Transferred Octel Employees.
Notwithstanding the foregoing, in lieu of retaining any specific Information,
Great Lakes or Octel may offer in writing to deliver such Information to the
other and, if such offer is not accepted within 90 days, the offered Information
may be destroyed or other wise disposed of at any time. If a recipient of such
offer shall request in writing prior to the scheduled date for such destruction
or disposal that any of the Information proposed to be destroyed or disposed of
be delivered to such requesting party, the party proposing the destruction or
disposal shall promptly arrange for the delivery of such of the Information as
was requested (at the cost of the requesting party).
Section 7.5 Confidentiality.
(a) Each of Great Lakes and Octel shall, and shall cause
its officers, employees, agents, contractors, consultants, advisors and
Affiliates to, hold, in strict confidence, and not disclose to another,
Confidential Information concerning the other party, except (i) for purposes of
fulfilling its obligations under this Agreement or the Related Agreements or
(ii) as compelled to disclose by any stock exchange on which such party's equity
is traded, by judicial or administrative process or, in the opinion of its
independent legal counsel, by other requirements of law.
(b) For purposes of this Section 7.5, Confidential
Information about a particular party (referred to herein as the "First Party")
shall mean information known by the other party on the Distribution Date and
reasonably understood by the other party to be confidential and related to the
First Party's business interests (including, but not limited to, technical and
research and development information), or disclosed confidentially by the First
Party to the other party after the Distribution Date under the terms and for
purposes of this Agreement or any of the Related Agreements except for:
(i) information learned by the other party
for the first time after the Distribution Date, but prior to any
disclosure by the First Party;
(ii) information which is or becomes publicly
available through no act of the other party, from and after the
date of public availability;
(iii) information disclosed to the other party
by a third party, provided (A) under the circumstances of disclosure
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the other party does not have a duty of non-disclosure owed to such
third party, (B) the third party's disclosure is not violative of a duty
of non-disclosure owed to another, including the First Party, and (C)
the disclosure by the third party is not otherwise unlawful;
(iv) information developed by the other
party independent of any Confidential Information of the First Party
which is known by the other party on the Distribution Date and/or
disclosed by the First Party thereafter; and
(v) subject to compliance with clause (f) of
this Section 7.5, information which is required to be disclosed in
connection with any legal proceedings or ongoing Remediation
obligations.
(c) The foregoing restrictions shall expire with respect
to Confidential Information ten (10) years after the date of disclosure of such
information, unless and to the extent Great Lakes and Octel agree to a longer
period for the foregoing restrictions, in which case the foregoing restrictions
shall expire with respect to such information on the expiration of such longer
period. The date of disclosure in the case of Confidential Information of Great
Lakes known by Octel or Confidential Information of Octel known by Great Lakes
on the Distribution Date shall be considered to be the Distribution Date.
(d) Each party shall protect Confidential Information of
the other party by using the same degree of care, but no less than a reasonable
degree of care, to prevent the unauthorized disclosure of the other party's
Confidential Information as the party uses to protect its own Confidential
Information of a like nature.
(e) Each party shall insure that its Affiliates,
sublicensees and other transferees (such as advisors, attorneys and other
consultants) agree in writing to be bound by the same restrictions on use and
disclosure of Confidential Information as bind the party in advance of the
disclosure of Confidential Information to them.
(f) Upon receipt by any party or its Affiliates of any
subpoena, discovery or other request which calls for the production or
disclosure of Confidential Information of the other party and whenever any party
obtains knowl-
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edge that any current or former employee of such party or its Affiliates has
received any subpoena, discovery or other request which arguably calls for the
production or disclosure of Confidential Information, such party shall promptly
notify the other party of the existence of the request and shall provide the
other party a reasonable opportunity to review the Confidential Information and
to assert any rights it may have under this Section 7.5 or otherwise to prevent
the production or disclosure of Confidential Information. Each party and its
Affiliates shall not produce or disclose any Confidential Information unless (i)
the other party has provided its express written consent to such production or
disclosure, or (ii) a court of competent jurisdiction has entered a final,
non-appealable order finding that the Confidential Information is not entitled
to protection.
(g) Great Lakes has provided or, prior to the Distribution
Date, shall provide to Octel copies of all effective confidentiality agreements
in its possession entered into since January 1, 1996 which relate to the
Transferred Businesses or the Transferred Assets.
Section 7.6 Privileged Matters.
(a) Octel and Great Lakes agree to maintain, preserve and
assert all privileges that either party may have that exist on or before the
Distribution Date, and regardless of when such privileges would ultimately be
asserted, including without limitation, any privilege or protection arising
under or relating to any attorney-client relationship ("Privilege" or
"Privileges"). Great Lakes and Octel shall be entitled in perpetuity to require
the assertion or decide whether to consent to the waiver of any and all
Privileges which, in the case of Octel, relate to the Transferred Businesses,
the Transferred Assets and/or Assumed Liabilities and, in the case of Great
Lakes, relate to the Excluded Businesses, the Excluded Assets, the
Non-Transferred Businesses and the Retained Liabilities. Octel and Great Lakes
shall each use the same degree of care as it would with respect to itself so as
not to waive any Privilege which could be asserted under applicable law without
the prior written consent of the other party. The rights and obligations created
by this Section 7.6 shall apply to all Information as to which, but for the
Distribution, Great Lakes or its Affiliates or Octel or its Affiliates would
have been entitled to assert or did assert the protection of a Privilege
("Privileged Information"), including but not limited to (i) all Information
generated on or prior to the Distribution Date but which, after the
Distribution, is in the possession of the other party or its Affiliates; (ii)
all communications subject to a Privilege occurring on or prior to the
Distribution Date between counsel for Great Lakes or its Affiliates and any
person who, at the time of the
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communication, was an employee of Great Lakes or its Affiliates, regardless of
whether such employee is or becomes an Octel employee or an employee of any of
Octel's Affiliates; (iii) all communications subject to a Privilege occurring on
or prior to the Distribution Date between counsel for Octel or its Affiliates,
and any person who, at the time of the communication, was an employee of Octel,
Octel Associates, The Associated Octel Company, Octel America, Inc. or any
Affiliate thereof or was an employee of the Transferred Businesses or the
Excluded Businesses, regardless of whether such employee is or becomes a Great
Lakes employee or an employee of any of Great Lakes' Affiliates; and (iv) all
Information generated, received or arising after the Distribution Date that
consists of Privileged Information generated, received or arising on or prior to
the Distribution Date but which, after the Distribution Date, is in the
possession of the other party or its Affiliates.
(b) Upon receipt by any party or its Affiliates of any
subpoena, discovery or other request which calls for the production or
disclosure of Privileged Information of the other party and whenever any party
obtains knowledge that any current or former employee of such party or its
Affiliates has received any subpoena, discovery or other request which arguably
calls for the production or disclosure of Privileged Information, such party
shall promptly notify the other party of the existence of the request and shall
provide the other party a reasonable opportunity to review the Privileged
Information and to assert any rights it may have under this Section 7.6 or
otherwise to prevent the production or disclosure of Privileged Information.
Each party and its Affiliates shall not produce or disclose any Information
covered by a Privilege of the other party under this Section 7.6 unless (i) the
other party has provided its express written consent to such production or
disclosure, or (ii) a court of competent jurisdiction has entered a final,
non-appealable order finding that the Information is not entitled to protection
under any applicable Privilege.
(c) Great Lakes' transfer of the Transferred Businesses
Books and Records and any other Information to Octel, Octel's transfer of
Excluded Books and Records and any other Information to Great Lakes and the
agreement of Great Lakes and Octel to permit the other to possess Privileged
Information occur ring or generated on or prior to the Distribution Date, are
made in reliance on the agreement of Octel and Great Lakes, as set forth in this
Section 7.6, to maintain the confidentiality of Privileged Information and to
maintain, preserve and assert all applicable Privileges. The access to
Information granted or permitted by this Agreement, the agreement to provide
witnesses and individuals pursuant to Section 7.3 hereof and transfer of
Privileged Information to Octel and to Great Lakes
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pursuant to this Agreement shall not be deemed a waiver of any Privilege that
has been or may be asserted under this Section 7.6 or otherwise. Nothing in this
Agreement shall operate to reduce, minimize or condition the rights granted to
either party in, or the obligations imposed upon either party by, this Section
7.6.
Section 7.7 Mail and Other Communications. Each of Great Lakes
and Octel agrees to forward or direct (as appropriate) to the other party any
mail or other communications of such other party which is received by it or its
Affiliates.
ARTICLE VIII
EMPLOYEE MATTERS AND BENEFITS
Section 8.1 Benefit Plans. Schedule 8.1 contains a true and
complete list of (a) each deferred compensation and each incentive compensation
plan, program, agreement or arrangement, (b) each "welfare" plan, fund or
program (within the meaning of section 3(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) (each, a "Welfare Plan"), (c) each
"pension" plan, fund or program (within the meaning of section 3(2) of ERISA),
(d) each employment, termination or severance agreement, and (e) each other
employee benefit plan, fund, program, agreement or arrangement; in each case,
that is sponsored, maintained or contributed to or required to be contributed to
by Great Lakes or its Affiliates for the benefit of any Transferred Great Lakes
Employee (the documents listed on Schedule 8.1, the "Benefit Plans").
Section 8.2 Assumption of Benefit Plans. Octel or its Affiliates
shall assume (or retain, as the case may be) and be solely responsible for, and
Octel shall indemnify Great Lakes with respect to, all Liabilities under the
Benefit Plans relating to any Transferred Great Lakes Employees, including, but
not limited to, any Liabilities under the Great Lakes Supplemental Savings Plan,
any accrued vacation and payroll taxes, and any severance arrangements, with
respect to all periods of service with Octel or Great Lakes or their respective
Affiliates, whether prior to, on or following the Distribution, except: (i)
Liabilities for benefits accrued as of the Distribution Date with respect to the
Transferred Great Lakes Employees under the Retirement Plan for Certain Members
of Great Lakes Chemical Corporation; (ii) except as described in Section 8.4
below, Liabilities for benefits accrued as of the Distribution Date with respect
to the Transferred Great Lakes Employees under the Great Lakes Savings Plan (the
"Savings Plan"); and (iii) Liabilities with respect to
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claims incurred prior to the Distribution Date under any Benefit Plan that is a
Welfare Plan.
Section 8.3 Service Credit. The Transferred Great Lakes Employees
shall receive credit for service prior to the Distribution Date with Great
Lakes or any Great Lakes Entity for purposes of participation, eligibility,
vesting and benefit accrual and entitlement under any employee benefit plans
maintained by Octel or its Affiliates, including but not limited to satisfaction
of any pre-existing condition under any such plan, provided, however, that no
such service shall be credited with respect to a Transferred Great Lakes
Employee under an employee benefit plan if the crediting of such service would
result in duplication of benefits with respect to such Transferred Great Lakes
Employee under such employee benefit plan.
Section 8.4 Transfer and Vesting of Savings Plan Balances;
Vesting of Pension Plan Benefits. (a) Prior to the Distribution Date, Great
Lakes shall take all such actions as shall be necessary or appropriate to cause
the account balances of the Transferred Great Lakes Employees (other than any
Transferred Great Lakes Employee described in clause (ii) of the definition of
Transferred Great Lakes Employee) under the Savings Plan to be fully vested as
of the Distribution Date. As soon as practicable after the Distribution Date,
Octel shall establish or designate an individual account plan for the benefit of
the Transferred Great Lakes Employees (the "Successor Savings Plan"), shall take
all necessary action, if any, to qualify such plan under the applicable
provisions of the Code and shall make any and all filings and submissions to the
appropriate governmental agencies required to be made by it in connection with
the transfer of assets described below. As soon as practicable following the
establishment or designation of the Successor Savings Plan, Great Lakes shall
cause the trustee of the Savings Plan to transfer (such date of transfer being
referred to herein as the "Transfer Date") in the form of cash the full account
balances of the Transferred Great Lakes Employees under the Savings Plan as of
the Distribution Date (which account balances will have been credited with
appropriate earnings attributable to the period from the Distribution Date to
the Transfer Date and reduced by any benefit or withdrawal payments to or in
respect of the Transferred Great Lakes Employees occurring during the period
from the Distribution Date to the Transfer Date) to the appropriate trustee as
designated by Octel under the trust agreement forming a part of the Successor
Savings Plan.
(b) In consideration for the transfer of assets described
herein, Octel shall, effective as of the Transfer Date, (i) cause the Successor
Savings Plan to assume all of the obligations of Great Lakes and any of its
Affiliates in
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respect of the account balances accumulated by the Transferred Great Lakes
Employees under the Savings Plan on or prior to the Transfer Date and (ii)
indemnify Great Lakes and its Affiliates and each officer, employee and director
of Great Lakes and its Affiliates and each fiduciary of the Savings Plan from
any and all losses, claims, damages and liabilities incurred or suffered by them
arising out of, in respect of, or in connection with, the qualified status of
the Successor Savings Plan. Neither Octel nor any of its Affiliates shall assume
any other obligations or liabilities arising under or attributable to the
Savings Plan.
(c) Prior to the Distribution Date, Great Lakes shall take
all such actions as shall be necessary or appropriate to cause the accrued
benefits of the Transferred Great Lakes Employees (other than any Transferred
Great Lakes Employee described in clause (ii) of the definition of Transferred
Great Lakes Employee) under the Retirement Plan for Certain Employees of Great
Lakes Chemical Corporation to be fully vested as of the Distribution Date.
Section 8.5 Certain Transfers from U.K. Pension Plans. With
respect to the transfer of any assets and Liabilities in relation to the
Transferred Octel Employees from any U.K. pension plan sponsored by Octel or its
Affiliates to any such arrangements sponsored by Great Lakes or its Affiliates
the following provisions shall apply:
(a) Any transfer of past service entitlements for any
Transferred Octel Employee shall only occur after the consent of the Transferred
Octel Employee concerned has been obtained;
(b) Octel shall procure that transfer payments made to a
pension plan sponsored by Great Lakes or its Affiliates from any U.K. pension
plan sponsored by Octel or its Affiliates are calculated on the ongoing
actuarial method and assumptions as set out in the draft report dated December
12, 1997 by J Xxxxx of Xxxxxx Xxxxx Partners in relation to The Associated Octel
Company Limited Pension Plan, provided that the Transfer Amount shall not be
less than the Adjusted Guaranteed Amount.
In the event that there is a shortfall in the amount of that
transfer payment actually made then Octel shall be responsible for making good
any such deficit within 14 days of the amount in question becoming due.
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(c) The period of temporary participation by Great Lakes
or its Affiliates in a U.K. pension plan sponsored by Octel or its Affiliates
shall be a period not to exceed 6 months from the U.K. Transfer Date.
(d) Octel and Great Lakes shall use their best endeavours
to assist each other as necessary in any reorganization of their U.K. pension
arrangements.
(e) Octel and Great Lakes shall comply, and shall cause
their Affiliates to comply with the terms and conditions of Schedule 8.5.
Section 8.6 Transferred Octel Employees.
(a) The parties agree that the transfer to Great Lakes
pursuant to this Agreement of the Excluded Assets and the Excluded Businesses
constitute relevant transfers within the meanings of the Transfer of
Undertakings (Protection of Employment) Regulation 1981 ("TUPE").
(b) With effect from the U.K. Transfer Date the contract
of employment of each of the Transferred Octel Employees (save insofar as such
contract relates in either case to any occupational pension scheme) shall be
transferred to Great Lakes or one of its Affiliates.
(c) Great Lakes or its relevant Affiliate will, so far as
possible, replicate the terms of employment enjoyed by the Transferred Octel
Employees immediately prior to the U.K. Transfer Date and will recognize the
prior continuous service of the Transferred Octel Employees with Octel or any of
its Affiliates for all purposes.
(d) All wages, salaries, withholding taxes, payroll taxes
and employment taxes and other costs and expenses of, and all other obligations
in respect of the Transferred Octel Employees in respect of the period up to and
including the U.K. Transfer Date shall be discharged by Octel. Octel will
indemnify and keep indemnified Great Lakes against all losses, Liabilities,
costs, claims and expenses incurred by Great Lakes or any of its Affiliates
arising from any failure by Octel to so discharge. Great Lakes or its relevant
Affiliate will be responsible for all such wages, salaries, withholding taxes,
payroll taxes and employment taxes and other costs and expenses in respect of
the period after the U.K. Transfer Date.
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(e) Octel will indemnify and hold harmless Great Lakes
against any and all losses, Liabilities, costs, claims and expenses which Great
Lakes or its Affiliates may incur arising out of or in connection with any act
or omission by Octel or its Affiliates in relation to any Transferred Octel
Employee on or prior to the U.K. Transfer Date, including without limitation:
(i) the termination of employment of (or
the giving notice of such termination to) any Transferred Octel
Employee;
(ii) any act of unlawful discrimination;
(iii) any personal injury or other harm
suffered in the course of his/her employment with Octel or its
Affiliates; and
(iv) any failure by Octel or its Affiliates to
comply with the provisions of Regulation 10 of TUPE.
(f) Octel will further indemnify and hold harmless Great
Lakes against any wages, salaries, withholding taxes, payroll taxes and
employment taxes and other costs and expenses incurred by Great Lakes or any of
its Affiliates arising in respect of any person who is not a Transferred Octel
Employee but whose contract of employment is nonetheless transferred to Great
Lakes or any of its Affiliates by virtue of TUPE as a result of this Agreement.
(g) Great Lakes will indemnify and hold harmless Octel
against any and all losses, Liabilities, costs, claims and expenses which Octel
may incur arising out of or in connection with any act or omission by Great
Lakes or any of its Affiliates in relation to any Transferred Octel Employee
after the U.K. Transfer Date, including without limitation:
(i) the termination of employment of any
Transferred Octel Employee;
(ii) any act of unlawful discrimination;
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(iii) any personal injury or other harm
suffered by any Transferred Octel Employee in course of his/her
employment with Great Lakes or any of its Affiliates;
(iv) the application to any Transferred Octel
Employee of terms of employment different from those which he/she
enjoyed with Octel immediately prior to the Distribution Date.
(h) (i) Forthwith upon the U.K. Transfer Date or at such
date as mutually agreed after the U.K. Transfer Date, Octel will deliver to
Great Lakes (or to its order) the full personnel, tax and payroll records of all
the Transferred Octel Employees, including, without limitation, details of any
health and safety matters affecting any such Transferred Octel Employee and
his/her disciplinary, sickness and appraisal records and (ii) forthwith upon
the Distribution Date or at such date as mutually agreed after the Distribution
Date, Great Lakes will deliver to Octel (or to its order) the full personnel,
tax and payroll records of all the Transferred Great Lakes Employees, including,
without limitation, details of any health and safety matters affecting any such
Transferred Great Lakes Employee and his/her disciplinary, sickness and
appraisal records.
ARTICLE IX
ENVIRONMENTAL MATTERS
Section 9.1 Octel Responsibility. At the Distribution Date, Octel
shall, and shall cause its Affiliates to, assume and be responsible for the
Assumed Environmental Liabilities. Without limiting the foregoing, Octel, or an
Affiliate of Octel, as the case may be, shall, promptly after the Distribution
Date, execute and obtain to the extent it is necessary and possible to do so,
and assist Great Lakes to execute and obtain, any consents, transfers,
assignments, assumptions, waivers, and other legally effective instruments to
cause Octel, or an Affiliate of Octel, as the case may be, to be substituted for
Great Lakes and its Affiliates with respect to all decrees and orders (whether
administrative or judicial and whether unilateral or by consent), permits,
licenses, registrations, financial assurances (including letters of credit),
other orders and decrees and any other obligations with respect to Environmental
Matters or arising under Environmental Laws relating to (i) the Assumed
Environmental Liabilities and (ii) the past, present and future operations of
the Transferred Businesses.
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Section 9.2 Great Lakes Responsibility. At the Distribution Date,
Great Lakes shall assume and/or remain responsible for the Retained
Environmental Liabilities. Without limiting the foregoing, Great Lakes, or an
Affiliate of Great Lakes, as the case may be, shall, promptly after the
Distribution Date, execute and obtain to the extent it is necessary and possible
to do so, and assist Octel to execute and obtain, any consents, transfers,
assignments, assumptions, waivers, and other legally effective instruments to
cause Great Lakes, or an Affiliate of Great Lakes, as the case may be, to be
substituted for Octel and its Affiliates with respect to all decrees and orders
(whether administrative or judicial and whether unilateral or by consent),
permits, licenses, registrations, financial assurances (including letters of
credit), other orders and decrees and any other obligations with respect to
Environmental Matters or arising under Environmental Laws relating to (i) the
Retained Environmental Liabilities and (ii) the past, present and future
operations of the Excluded Businesses (other than the Octel Liabilities).
ARTICLE X
INSURANCE
Section 10.1 General.
(a) Great Lakes shall continue all global insurance
coverage under the Great Lakes Insurance Program that was in effect as of March
1, 1998 insuring the Transferred Assets and operations of the Transferred
Businesses until 12:00 midnight New York time on the day before the Distribution
Date, except for property/business interruption and transit coverages (the
"March Insurance"), which shall have expired at 12:00 midnight London, U.K. time
on March 31, 1998. Except as provided in Section 10.1(b) and 10.3(a)(iii),
beginning at 12:01 a.m. New York time on the Distribution Date (or 12:01 a.m.
London, U.K. time on April 1, 1998 with respect to the March Insurance), Octel
and its Affiliates shall cease to be named insureds on a worldwide basis under
all global insurance policies in Great Lakes' Insurance Program. Except as
otherwise specifically stated in Sections 10.1(b) and 10.3, Octel, for itself
and its Affiliates, understands and agrees that the effect of these actions
shall be to eliminate insurance coverage not only for future claims and
occurrences but also for prior claims and occurrences which might have given or
may give rise to liabilities for which Octel or its Affiliates would be
responsible.
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(b) Octel and Great Lakes acknowledge the existence, in
certain policy periods prior to the Distribution Date, of occurrence-based
liability and casualty policies, including but not limited to crime, U.K.
employers' liability, U.S. worker's compensation, public and products liability
and U.K. motor liability, which policies named Octel, Great Lakes or various
Great Lake Entities as insureds. Nothing in this Agreement shall in any way
preclude any of the insureds from accessing any applicable occurrence-based
insurance with respect to occurrences prior to the Distribution Date. Octel and
Great Lakes shall not, and shall cause their respective Affiliates not to,
remove Octel or Great Lakes or any Great Lakes Entity as an insured, additional
insured or additional named insured or reduce their status as such with respect
to occurrence-based coverage for periods prior to the Distribution Date. Octel
and Great Lakes shall use reasonable efforts to obtain for Octel and Great
Lakes, or any applicable Great Lakes Entity, the benefit of all occurrence-based
insurance coverage described herein, and the party receiving the benefit of such
insurance shall reimburse the other for its reasonable out of pocket costs and
expenses incurred in connection therewith.
Section 10.2 Octel's Insurance.
(a) (i) Prior to the Distribution Date, Octel shall have
obtained and shall maintain for a one (1) year period from and after 12:01 A.M.
London, U.K. time on April 1, 1998 with respect to the March Insurance and 12:01
A.M. New York time on the Distribution Date with respect to all other insurance
(x) liability insurance substantially the same in scope as the insurance
provided to Octel and its Affiliates as of March 1, 1998 under the Great Lakes
Insurance Program, to cover, inter alia, Octel's indemnity obligations set
forth in this Agreement and in the Related Agreements, which insurance shall
have such limits as confirmed in a separate side letter signed by the parties,
shall provide coverage from and after April 1, 1994 and in all other respects
shall be reasonably satisfactory to Great Lakes and Octel, and (y) such other
insurance coverages in addition to that provided in clause (x) that are
substantially the same in scope as that provided to Octel and its Affiliates as
of March 1, 1998 under the Great Lakes Insurance Program, with such other
insurance coverages to be reasonably satisfactory to Great Lakes.
(ii) For all periods after the one (1) year
period specified in Section 10.2(a)(i), Octel shall obtain liability
insurance with such limits as confirmed in a separate side letter signed
by the parties, property/business interruption and directors' and
officers' liability insurance all substantially the same in scope (but
not
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necessary in financial limit) as that provided to Octel and its
Affiliates as of March 1, 1998 under the Great Lakes Insurance Program.
The insurance required by this Section 10.2(a)(ii) shall be maintained
by Octel until Great Lakes and Octel agree in writing that this
requirement is no longer needed.
(iii) If Octel does not obtain the coverages it
is obligated to obtain under this Agreement by the Distribution Date,
Great Lakes may, but shall not be required to, obtain them on behalf of
Octel and for Octel's account. Within thirty (30) days of the date of an
invoice from Great Lakes, Octel will reimburse Great Lakes for the
costs, if any, incurred by Great Lakes to purchase on Octel's behalf any
insurance coverage required by this Section 10.2(a). The insurance
coverage to be obtained by Octel pursuant to this Section 10.2(a) shall
be evidenced to Great Lakes by either: (x) broker's certificates of
insurance, with a minimum notice of cancellation or material change in
said coverage of sixty (60) days or such shorter period not being less
than thirty (30) days as the relevant insurers are willing to provide,
or (y) other documentation of coverage reasonably acceptable to Great
Lakes in either case to be delivered to Great Lakes prior to the
Distribution Date and each subsequent policy renewal date. The public
and product liability insurance coverages (including associated excess
liability insurance coverage) required by this Section 10.2(a) shall
name Great Lakes and its Affiliates additional insureds with respect
only to any liabilities of Octel or its Affiliates arising out of this
Distribution Agreement, contain a waiver of insurer's subrogation rights
and be primary and respond before any other applicable insurance of
Great Lakes.
(iv) Octel shall reimburse Great Lakes for
any reasonable costs or expenses incurred by Great Lakes or its
Affiliates after January 1, 1998 under the Great Lakes Insurance Program
that relate to the Transferred Businesses including, without limitation,
insurance policy deductible amounts or any costs incurred
by Niagara Insurance Company Ltd.
(b) Prior to the Distribution Date Great Lakes shall have
obtained directors' and officers' liability insurance coverage acceptable to
both Great Lakes and Octel in scope of coverage, limits, and cost to each and
confirmed in a
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separate side letter signed by each (the "Run-Off Policies") for Great Lakes and
Octel, their Affiliates and their officers and directors for acts and omissions
prior to the Distribution Date. Within thirty (30) days of the date of an
invoice from Great Lakes, Octel will reimburse Great Lakes for all agreed costs
incurred by Great Lakes with respect to coverage attributable to Octel under the
Run-Off Policies. The deductible amounts under the Run-Off Policies shall be
borne equally by Octel and Great Lakes under the circumstance where acts or
omissions of officers or directors of both Great Lakes and Octel are alleged in
the claim.
(c) Octel agrees that Great Lakes has made no warranty,
express or implied, and no representation that the scope of coverage or policy
limits of the insurance described in Section 10.1, 10.2 or 10.3 is, or shall be,
adequate or sufficient to meet Octel's, its Affiliates or their officers' and
directors' current or future insurance needs.
Section 10.3 Access to Great Lakes' Insurance Program.
(a) (i) On and after the Distribution Date, in addition to
any occurrence-based coverages available under Section 10.1(b) and coverages
available under Section 10.3 (a)(iii), Octel and its Affiliates shall have
access through Great Lakes to such global coverages and limits as may be
available under Great Lakes' pre-Distribution Date Insurance Program only for:
(x) covered claims under claims-made insurance policies (other than those under
the Run-Off Policies, which are subject to clause (y) below) that occurred prior
to the Distribution Date and which claims are notified to Great Lakes prior to
the Distribution Date pursuant to the applicable procedures under the Great
Lakes Insurance Program (provided, however, with respect to covered claims under
the March Insurance, such covered claims must have occurred prior to April 1,
1998 and must have been notified to Great Lakes pursuant to the applicable
procedures under the Great Lakes Insurance Program), and (y) the Run-Off
Policies for covered claims arising from acts or omissions prior to the
Distribution Date which: (A) are made against the directors and/or officers of
Octel or its Affiliates, and (B) are legally indemnifiable and which have been
indemnified by Octel or its Affiliates.
(ii) The officers and directors of Octel and
its Affiliates shall have access to such coverages and limits as may be
available under the Run-Off Policies for covered claims arising from
acts or omissions prior to the Distribution Date which: (A) are made
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against them, or any of them, and (B) are not legally indemnifiable and
which have not been indemnified by Octel or its Affiliates.
(iii) Great Lakes shall include Octel or its
Affiliates as an additional insured on its post-Distribution Date public
and products liability policies (also known as commercial general
liability) and associated excess liability policies, but only with
respect to any liabilities of Great Lakes or its Affiliates arising out
of this Distribution Agreement, until Great Lakes and Octel shall agree
in writing that this requirement is no longer needed. The insurance
coverage to be provided by Great Lakes pursuant to the immediately
preceding sentence shall: (1) be evidenced to Octel by either (x)
broker's certificates of insurance, with a minimum notice of
cancellation or material change in said coverage of sixty (60) days or
such shorter period not being less than thirty (30) days as the relevant
insurers are willing to provide, or (y) other documentation of coverage
reasonably acceptable to Octel in either case to be delivered to Octel
prior to the Distribution Date and each subsequent policy renewal date;
(2) contain a waiver of insurer's subrogation rights, and (3) be
primary, and respond before any other applicable insurance of Octel.
(b) Octel, for itself and its Affiliates, understands and
agrees that: (i) except as provided in Sections 10.1(b), 10.3(a)(i)(x),
10.3(a)(i)(y) and 10.3(a)(iii) with respect to Octel and its Affiliates, and
Section 10.3(a)(ii) with respect to officers and directors of Octel and its
Affiliates, no coverage shall be available under Great Lakes' Insurance Program;
(ii) any access to Great Lakes' Insurance Program including, without limitation,
the Run-Off Policies, shall be subject to available coverage and to all of the
terms, conditions, exclusions, retentions/deductibles and limits of such
policies; and, (iii) Great Lakes has made no warranty or representation of any
insurance Recovery from, or insurance coverage under, Great Lakes' Insurance
Program.
Section 10.4 Insurance Recoveries.
(a) Subject to the provisions of this Article X, Great
Lakes shall use its reasonable efforts to obtain Recoveries for Octel and its
Affiliates from Great Lakes' insurance carriers for coverage available under
Sections 10.1(b) and 10.3 hereof and shall keep Octel reasonably informed of
Great Lakes' efforts under this Section 10.4(a). Great Lakes shall reimburse
Octel for any Recovery obtained
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by it pursuant to such claims; provided, however, that notwithstanding the
foregoing, if Great Lakes has made a claim or claims under an insurance policy
which is not to be paid to Octel pursuant to Section 10.1(b) or 10.3 and a claim
or claims which are to be paid to Octel pursuant to Section 10.1(b) or 10.3 and
the amount of the Recovery for such claims is limited by the amount of coverage
provided by such policy, Great Lakes may reasonably allocate the Recovery
between it and Octel for such claims. Octel shall pay all out of pocket costs
incurred by Great Lakes in making any claim on behalf of Octel pursuant to this
Section 10.4(a) (and for claims made by Great Lakes under an insurance policy
where the Recovery would be paid in part to Great Lakes and in part to Octel,
Octel shall pay the out of pocket costs incurred by Great Lakes in connection
with the Octel Recovery), and such out of pocket costs incurred in pursuing a
claim may be deducted from any Recovery for such claim. Octel shall also pay the
salaries of Great Lakes' officers and employees based on their time spent
pursing such recoveries on behalf of Octel. Octel agrees to make available to
Great Lakes such of its employees and the employees of its Affiliates as Great
Lakes may reasonably request as witnesses or deponents in connection with Great
Lakes' management of claims, at Octel's sole cost and expense. Octel agrees
that, if Great Lakes has paid a Recovery to Octel for such a claim and Octel or
its Affiliates receives proceeds from any other person with respect to such
Recovery, Octel shall pay to Great Lakes the amount of such proceeds it has
received.
(b) Subject to the provisions of this Article X, Octel
shall use its reasonable efforts to obtain Recoveries for Great Lakes and its
Affiliates for coverage available under Section 10.1(b) or 10.2 hereof and shall
keep Great Lakes reasonably informed of Octel's efforts under this Section
10.4(b). Octel shall reimburse Great Lakes for any Recovery obtained by it
pursuant to such claims, provided, however, that notwithstanding the foregoing,
if Octel has made a claim or claims under an insurance policy which is not to be
paid to Great Lakes pursuant to Section 10.1(b) or 10.2 and a claim or claims
which are to be paid to Great Lakes pursuant to Section 10.1(b) or 10.2 and the
amount of the Recovery for such claims is limited by the amount of coverage
provided by such policy, Octel may reasonably allocate the Recovery between it
and Great Lakes for such claims. Great Lakes shall pay all out of pocket costs
incurred by Octel in making any claim on behalf of Great Lakes pursuant to this
Section 10.4(b) (and for claims made by Octel under an insurance policy where
the Recovery would be paid in part to Octel and in part to Great Lakes, Great
Lakes shall pay the out of pocket costs incurred by Octel in connection with the
Great Lakes Recovery), and such out of pocket costs incurred in pursuing a claim
may be deducted from any Recovery for such claim. Great Lakes shall also pay the
salaries of Octel's officers and employees based on their time spent
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on pursuing such recoveries on behalf of Great Lakes. Great Lakes agrees to make
available to Octel such of its employees and the employees of its Affiliates as
Octel may reasonably request as witnesses or deponents in connection with
Octel's management of claims, at Great Lakes' sole cost and expense. Great Lakes
agrees that, if Octel has paid a Recovery to Great Lakes for such a claim and
Great Lakes or its Affiliates receives proceeds from any other person with
respect to such Recovery, Great Lakes shall pay to Octel the amount of such
proceeds it has received.
Section 10.5 Assignment. Nothing in this Agreement shall be
deemed to constitute (or to reflect) an assignment of any insurance policy or
insurance benefit.
ARTICLE XI
DISPUTE RESOLUTION
Section 11.1 Mediation and Binding Arbitration. Except as may be
otherwise expressly provided in this Agreement, the Related Agreements, or any
other agreements entered into in connection with this transaction, if any
dispute, controversy or claim (collectively, a "Dispute") between Great Lakes
and Octel or any of their respective Affiliates arises out of or relates to this
Agreement, the Related Agreements or any other agreement entered into pursuant
hereto or thereto, including, without limitation, the breach, interpretation or
validity of any such agreement or any matter involving an Indemnifiable Loss,
Great Lakes and Octel agree to use the following procedures, in lieu of either
party pursuing other available remedies and as the sole remedy (except as
provided in Section 11.11 below), to resolve the Dispute. As provided in Section
12.3 hereof, the laws of New York shall apply to any such Dispute.
Section 11.2 Initiation. A party seeking to initiate the
procedures shall give written notice to the other party, describing briefly the
nature of the Dispute. After notice of a Dispute has been provided, the parties
shall for a period of not less than 30 days seek to resolve the Dispute through
good faith negotiations. Where practicable, a meeting shall be held between the
parties within 10 days of the receipt of such notice, attended by individuals
with decision-making authority regarding the Dispute, to attempt in good faith
to negotiate a resolution of the Dispute.
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Section 11.3 Submission to Mediation. If, within 30 days after
such meeting, the parties have not succeeded in negotiating a resolution of the
Dispute, the Dispute shall be submitted to mediation at the earliest possible
date in accordance with the Center for Public Resources Model ADR Procedure -
Mediation of Business Disputes, as modified herein, and the parties shall bear
equally the costs of the mediation.
Section 11.4 Selection of Mediator. The parties shall jointly
appoint a mutually acceptable mediator. If they are unable to agree upon such
appointment within 10 days from the conclusion of the negotiation period, either
party may request the Center for Public Resources or another mutually
agreed-upon organization to appoint the mediator.
Section 11.5 Mediation and Arbitration. The parties agree to
participate in good faith in the mediation process for a period of 30 days after
the mediator has been selected or such longer period as they may mutually agree;
provided, however, that in the event that one party fails to participate in
mediation, the Dispute may be referred immediately by either party to
arbitration and the time of such failure shall constitute the end of the
mediation period. After 30 days from the appointment of the mediator, either
party may submit the Dispute to binding arbitration in accordance with the
International Rules for Arbitration of the American Arbitration Association. The
arbitration shall be held in London, England, and judgment upon the award
rendered by the arbitrator may be entered by any court having jurisdiction
thereof. The award shall be final and binding upon the parties, and shall be the
sole and exclusive remedy between the parties regarding any claims,
counterclaims, issues or accounting presented to the arbitral tribunal. The
parties expressly agree that leave to appeal under Section 45 or Section 69 of
the English Arbitration Act of 1996 may not be sought with respect to any
question of law arising in the course of the arbitration or with respect to any
award made.
Section 11.6 Selection of Arbitrator. The parties shall have 10
days from the end of the mediation period to agree upon a mutually acceptable
person to act as arbitrator. The arbitrator shall be a person who is both
independent and neutral (i.e., a person not affiliated with either of the
parties), and shall be a person who is knowledgeable in the subject matter of
the Dispute. If the parties are unable to agree on the selection of an
arbitrator, the appointment of the arbitrator shall be made in accordance with
the rules of the American Arbitration Association.
Section 11.7 Cost of Arbitration. The costs of arbitration shall
be apportioned between Great Lakes and Octel as determined by the arbitrator in
such
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manner as the arbitrator deems reasonable taking into account the circumstances
of the case, the conduct of the parties during the proceeding, and the result of
the arbitration.
Section 11.8 Arbitration Period. Any arbitration proceeding shall
be concluded in a maximum of one (1) year from written notice from one party to
the other party initiating the procedures under this Article XI and requesting
arbitration after having participated, to the extent contemplated herein, in
negotiation and mediation under this Article XI.
Section 11.9 Treatment of Negotiation and Mediation. All
negotiations and mediations pursuant to this Article XI shall be treated as
privileged compromise and settlement negotiations.
Section 11.10 Confidentiality. All negotiation, mediation and
arbitration proceedings under this Article XI shall be treated as Confidential
Information in accordance with the provisions of Section 7.5 hereof. Any
mediator or arbitrator shall be bound by an agreement containing confidentiality
provisions at least as restrictive as those contained in Section 7.5 hereof.
Section 11.11 Interim Relief. Either party may seek from a court
of competent jurisdiction interim or provisional relief in order to maintain the
status quo during the pendency of the dispute resolution provisions of this
section. Upon commencement of arbitration, such interim or provisional relief
may be subsequently vacated, continued or modified by the arbitrator on
application of either party.
Section 11.12 Notices. All notices by one party to the other
party in connection with the dispute resolution provisions set forth in this
Article XI shall be in accordance with the provisions of Section 12.4.
Section 11.13 Consolidation. The arbitrator shall have the power
in appropriate circumstances to provide for consolidation of arbitration claims
between the parties.
Section 11.14 Powers of Arbitrator. Notwithstanding any contrary
provision of this Agreement or the governing law, the arbitrator shall have no
authority to award punitive or exemplary damages or any other monetary damages
not measured by the prevailing party's actual damages, except in connection with
an indemnification claim to the extent an Indemnified Party has paid or becomes
liable to pay an Indemnifiable Loss in connection with a Third Party Claim which
includes
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punitive, exemplary or other damages not measured by the third party's actual
damages.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Complete Agreement. This Agreement, including the
Schedules, Annexes and Exhibits and the agreements and other documents referred
to herein, shall constitute the entire agreement between Great Lakes and Octel
with respect to the subject matter hereof and shall supersede all previous
negotiations, commitments and writings with respect to such subject matter.
Section 12.2 Expenses. (a) Great Lakes or Octel (as the case may
be) shall pay the following fees and expenses, including those fees and expenses
of their respective Affiliates, incurred in connection with this Agreement, the
Distribution, the Information Statement, the Form 10, the Financings, the
Offering Circular, and the transactions contemplated herein and therein,
regardless of whether such fees and expenses are payable before, on or after the
Distribution Date:
(i) Great Lakes shall be responsible for the
payment of: (a) the advisory fee and expenses of Xxxxxxx, Xxxxx & Co.
relating to the Distribution and other financial advice; (b) all fees
and expenses of Ernst & Young LLP, except to the extent such fees and
expenses are to be paid by Octel pursuant to clause (a)(ii)(c); (c) all
fees and expenses of Skadden, Arps, Slate, Xxxxxxx & Xxxx, except to the
extent such fees and expenses are to be paid by Octel pursuant to clause
(a)(ii)(c) or clause (a)(ii)(e); (d) all fees and expenses of Xxxxxxx
Suddards, except to the extent such fees and expenses are to be paid by
Octel pursuant to clause (a)(ii)(c) or clause (a)(ii)(d); (e) $554,000
in fees and expenses of Xxxxxxxx & Xxxxx; (f) $375,000 in fees and
expenses of Price Waterhouse LLP; (g) $65,000 in fees and expenses of
Sabrelance; (h) $120,000 in fees and expenses of Linklaters & Paines;
(i) the costs of printing and mailing the Form 10, the Information
Statement, the Offering Circular and the Octel stock certificates; (j)
all fees and expenses in connection with the Credit Facility, the
Offering Circular and the Notes to the extent that such fees and
expenses exceed the obligation assumed by Octel under clauses
(a)(ii)(a), (b) and (c); and (k) any other fees and expenses not
expressly listed in clause (a)(i) to the extent that Great Lakes
retained
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the person or entity that provided the services that are the subject of
such fee or expense.
(ii) Octel shall be responsible for the payment
of: (a) the $4,800,000 fee of Xxxxxxx, Xxxxx & Co. relating to the
Credit Facility (as defined in the Form 10); (b) the $4,500,000 fee of
Xxxxxxx, Sachs & Co. relating to the Offering Circular and the Notes (as
defined in the Form 10); (c) all fees and expenses (in addition to the
$4,800,000 fee and $4,500,000 fee of Xxxxxxx, Xxxxx & Co. as specified
in (a)(ii)(a) and (a)(ii)(b) above) in connection with the Credit
Facility, the Offering Circular and the Notes (including, without
limitation, the fees and expenses of Cravath, Swaine & Xxxxx, Dames &
Xxxxx, Chem Systems and Ashurst Xxxxxx Xxxxx) up to an aggregate amount
of $939,668 (but excluding any fees and expenses incurred by Octel with
Linklaters & Paines, Xxxxxxxx & Xxxxx, Sabrelance and Price Waterhouse
LLP, which shall be in addition to such sum and are for Octel's account
pursuant to clause (a)(ii)(g) other than to the extent payable by Great
Lakes under clauses (a)(i)(e), (f), (g) and (h) above); (d) $75,000 in
fees and expenses of Xxxxxxx Suddards (in addition to any fees and
expenses of Xxxxxxx Suddards that are payable by Octel pursuant to
clause (a)(ii)(c)); (e) $120,000 in fees and expenses of Skadden, Arps,
Slate, Xxxxxxx & Xxxx (in addition to any fees and expenses of Skadden,
Arps, Slate, Xxxxxxx & Xxxx that are payable by Octel pursuant to clause
(a)(ii)(c)); (f) all fees and expenses of Xxxxx'x Investors Service and
Standard and Poor's Rating Group; (g) all fees and expenses of
Linklaters & Paines, Xxxxxxxx & Xxxxx, Price Waterhouse LLP and
Sabrelance, except to the extent such fees and expenses are to be paid
by Great Lakes pursuant to clauses (a)(i)(e), (f), (g) and (h); (h) all
payments due and owing under the following interest rate hedge
agreements: (x) Forward Treasury Lock Agreement, dated as of October 24,
1997, between The Associated Octel Company, Limited and Xxxxxx Guaranty
Trust Company of New York (Deal Number 214011), (y) Confirmation, dated
October 23, 1997, between Associated Octel Company Limited, UK and
Xxxxxxx Sachs Capital Markets, LP (Reference Number NUU0710950
(600000000)/(006 833 495)) and (z) Forward Treasury Lock Agreement,
dated as of October 30, 1997, between The Associated Octel Company,
Limited and Xxxxxx Guaranty Trust Company of New York (Deal Number
214690), and with respect to (x), (y) and (z) all extensions, rollovers
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or reissuances thereof regardless of whether effected under the same or
a different deal number or reference number; and (i) any other fees or
expenses not expressly listed in clause (a)(ii) to the extent that Octel
retained the person or entity that provided the services that are the
subject of such fee or expense.
(b) The party responsible for the payment of fees or
expenses incurred by the other party as provided in clauses (a)(i) and (a)(ii)
shall also be responsible for any applicable VAT, unless the party incurring the
fees or expenses (and who seeks reimbursement under clause (d)) has a right of
offset or recovery for such VAT, in which case the party incurring the fees or
expenses shall be responsible for the VAT.
(c) Neither party shall have any right of recovery against
the other for any fees or expenses of Xxxxxxxx & Xxxxx, Price Waterhouse LLP,
Linklaters & Paines and Sabrelance that were paid by Octel prior to January 1,
1998.
(d) Within ninety (90) days following the Distribution
Date, each party shall reimburse the other for all amounts paid or to be paid
pursuant to the allocation of fees and expenses in clauses (a)(i) and (a)(ii).
Section 12.3 Governing Law. Except with respect to the
Conveyancing and Assumption Instruments, which shall be governed by local law,
and except as may be expressly provided in this Agreement, the Related
Agreements and any other agreements entered into in connection with this
transaction, this Agreement, the Related Agreements and any other agreement
entered into in connection with this transaction and any questions, claims,
disputes, remedies or procedural matters shall be governed exclusively by the
laws of New York, without regard to the principles of conflicts of law, as to
all matters, including, without limitation, matters of validity, construction,
effect, performance and remedies. The parties agree that New York has a
substantial relationship to this transaction.
Section 12.4 Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) on the date of service if served personally on the
party to whom notice is given, (b) on the day of transmission if sent via
facsimile transmission to the facsimile number given below, provided facsimile
confirmation of receipt is obtained promptly after completion of transmission,
(c) on the third business day after delivery to an overnight courier service,
provided receipt of delivery has been confirmed, or (d) on the tenth day after
mailing, provided receipt of delivery is
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confirmed, if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, properly addressed and
re-turn-receipt requested, to the party as follows:
If to Great Lakes: Great Lakes Chemical Corporation
Xxx Xxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxx
Attn: Vice President and General Counsel
Telecopy: (000) 000-0000
If to Octel: Octel Corp.
P.O. Box 17, Oil Sites Road
Xxxxxxxxx Xxxx
Xxxxx Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attn: Senior Vice President and General Counsel
Telecopy: 00-000-000-0000
Any party may change its address by giving the other party written notice of its
new address in the manner set forth above.
Section 12.5 Amendment and Modification. This Agreement may
be amended, modified or supplemented only by written agreement of the parties.
Section 12.6 Termination. This Agreement may be terminated and
the Distribution abandoned at any time prior to the Distribution Date by and in
the sole discretion of Great Lakes without the approval of Octel. In the event
of such termination, no party shall have any liability of any kind to any other
party.
Section 12.7 Successors and Assigns. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either party without the prior written consent of the other party,
provided, however, that Octel may assign its rights and interests under this
Agreement in connection with the Lenders' Liens.
To the extent that Great Lakes assigns to a party (including an
Affiliate of Great Lakes) any of its Retained Liabilities (except for such
amounts of
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Retained Liabilities which are not material, individually or in the aggregate),
Great Lakes shall cause the assignee of such Retained Liabilities to assume
specifically its obligations with respect thereto under this Agreement, shall
cause such assignee to fulfill its obligations related to such Retained
Liabilities and shall guarantee the performance thereof. To the extent Octel
transfers to another party (including an Affiliate of Octel) any of the Assumed
Liabilities (except for such amounts of Assumed Liabilities which are not
material individually or in the aggregate), Octel shall cause the assignee of
such Assumed Liabilities to assume specifically its obligations with respect
thereto under this Agreement, shall cause such assignee to fulfill its
obligations related to such Assumed Liabilities and shall guarantee the
performance thereof. In the event the assignee of the Retained Liabilities or
Assumed Liabilities does not fulfill its obligations with respect thereto, Great
Lakes or Octel, as the case may be, shall fulfill its obligations with respect
thereto and continue to guarantee the performance of such obligations pursuant
to Section 12.15 hereof.
Section 12.8 No Third Party Beneficiaries. Except with respect to
the Lenders' Liens and except as provided in Section 5.1(b), Section 5.1(c) and
any other applicable indemnity provisions contained in this Agreement granting
rights to third parties, this Agreement is solely for the benefit of the parties
hereto and is not intended to confer upon any other person except the parties
hereto any rights or remedies hereunder.
Section 12.9 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 12.10 Interpretation. The Article, Section and
subparagraph headings contained in this Agreement are solely for the purpose of
reference, are not part of the agreement of the parties and shall not in any way
affect the meaning or interpretation of this Agreement. As used in this
Agreement, the term "person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof. Whenever any
words are used herein in the masculine gender, they shall be construed as though
they were also used in the feminine gender in all cases where they would so
apply.
Section 12.11 Annexes, Etc. The Annexes, Schedules and Exhibits
shall be construed with, and shall be an integral part of, and are hereby
expressly
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incorporated into, this Agreement to the same extent as if the same had been set
forth verbatim herein.
Section 12.12 Construction of Agreements. Notwithstanding any
other provisions in this Agreement to the contrary, in the event and to the
extent that there shall be a conflict between the provisions of this Agreement
(or any Conveyancing and Assumption Instrument or other instrument of
assumption) and the provisions of any other agreement entered into by Great
Lakes or Octel pursuant to this Agreement (including, without limitation, the
Related Agreements other than the Tax Disaffiliation Agreement), the provisions
of this Agreement shall control. Except as provided in Section 12.2 with respect
to VAT, all Liabilities and obligations of the parties regarding Taxes (as that
term is defined in the Tax Disaffiliation Agreement) shall be governed
exclusively by the Tax Disaffiliation Agreement. In the event of any conflict
between this Agreement and the Tax Disaffiliation Agreement, the terms of the
Tax Disaffiliation Agreement will prevail.
Section 12.13 Legal Enforceability. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 12.14 Survival. All covenants, obligations and agreements
of the parties contained in this Agreement shall survive the Distribution Date
or the sale or other transfer by other party of the Transferred Businesses, the
Transferred Assets, the Excluded Business or the Excluded Assets (as the case
may be) or the assignments by either party of any Liabilities.
Section 12.15 Guaranty. Octel and Great Lakes each guarantees the
performance of all obligations of its Affiliates, assignees and transferees (if
any) under this Agreement, all Related Agreements and all other agreements to be
entered into in connection with this transaction. Great Lakes shall use its best
efforts to cause its Affiliates, Great Lakes Europe Limited and Great Lakes
Chemical (Europe) Limited, and Octel shall use its best effort to cause its
Affiliates, Associated Octel Company (Plant) Limited, Octel Trading Limited,
Octel Resources Limited, The Associated Octel Company Limited and AKC Trading
Limited within ninety (90) days of the date of this Agreement to enter into
guarantees of the performance of the obligations of Great Lakes and Octel,
respectively, under this Agreement, the Related Agreements and all other
agreements to be entered into in connection with
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this transaction to the extent that such guarantees are lawful and do not
infringe the terms of any contractual obligation entered into by Great Lakes, or
Octel or their respective Affiliates on or prior to the Distribution Date. For
these purposes, the obligations of Great Lakes and Octel shall include an
obligation to procure compliance with Sections 155 to 158 Companies Xxx 0000 of
the United Kingdom so far as the same are capable of being complied with in
relation to such guarantees.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered as of the day and year first above written.
GREAT LAKES CHEMICAL CORPORATION
By:___________________________________
Name:
Title:
OCTEL CORP.
By:___________________________________
Name:
Title:
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ANNEX I
ASSUMED LIABILITIES
Assumed Liabilities: (a) all Liabilities or obligations
(regardless of whether any claims with respect to such Liabilities and
obligations are asserted before, on or after the Distribution Date) relating to,
arising from or out of, or incurred in connection with, the acquisition,
ownership, use or operation of the Transferred Businesses or the Transferred
Assets, whether arising out of acts or omissions before, on or after the
Distribution Date, shall be expressly deemed to be Assumed Liabilities of Octel,
including, but not limited to:
(i) all Liabilities and obligations which should be set forth,
reflected, disclosed or reserved for on a balance sheet for Octel as of the
Distribution Date, which balance sheet shall be prepared in the same manner as
the December 31, 1997 audited balance sheet of Octel included in the Information
Statement (after giving effect to any pro forma adjustments reflected in the
Information Statement);
(ii) all Liabilities and obligations relating to, arising from or
out of, or incurred in connection with, the acquisition of all or any portion
of, the Transferred Businesses or the Transferred Assets, including, without
limitation, any Liabilities or obligations arising under the agreements set
forth on Schedule 1 to this Annex I;
(iii) all Liabilities and obligations pursuant to, under or
relating to all agreements, contracts and leases, whether written or oral,
whether entered into before, on or after the Distribution Date, relating to the
Transferred Businesses or Transferred Assets, including, without limitation, the
agreements set forth on Schedule 2 to this Annex I;
(iv) all Liabilities and obligations relating to, arising out of,
or incurred in connection with (A) the formation, structure and operation of The
Associated Octel Company Limited or Octel Associates or (B) the status of or
conduct of the businesses by Great Lakes or any Great Lakes Entity as an owner,
shareholder or partner, as the case may be, of The Associated Octel Company
Limited or Octel Associates, including, without limitation, any Liabilities and
obligations arising under or relating to the agreements set forth on Schedule 3
to this Annex I;
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(v) all Liabilities and obligations relating to, arising out of
or incurred in connection with the ownership, operation or use of the
Transferred Businesses or Transferred Assets, before, on or after the
Distribution Date;
(vi) all Assumed Environmental Liabilities and Product
Liabilities;
(vii) outstanding Bids, Quotations and Proposals pertaining to
the Transferred Businesses to the extent that such Bids, Quotations and
Proposals can be transferred or assigned without extinguishment or penalty; and
all contracts awarded to Great Lakes or any Great Lakes Entity before, on or
after the Distribution Date pertaining to the Transferred Businesses or the
Transferred Assets, as (A) assignee if those contracts are assignable and
assigned or transferred by operation of law, or (B) subcontractor if assignment
of those contracts and/or the proceeds therefrom is prohibited by law;
(viii) all warranty, performance and similar obligations entered
into or made in the course of business of the Transferred Businesses with
respect to Products;
(ix) all Liabilities and obligations not specifically retained by
Great Lakes pursuant to this Agreement or the Related Agreements with respect to
Transferred Great Lakes Employees;
(x) all Liabilities and obligations relating to all Actions
relating to, arising out of or incurred in connection with the operations of the
Transferred Businesses or the Transferred Assets;
(xi) all Liabilities and obligations relating to, arising out of,
or incurred in connection with the Transferred Businesses or the Transferred
Assets under laws, rules or regulations relating to the registration or
regulation of the sale or use of Products in commerce and similar state and
local laws;
(b) the Octel Liabilities shall be expressly deemed to be Assumed
Liabilities of Octel;
(c) all Liabilities and obligations specifically assumed by Octel
pursuant to this Agreement or the Related Agreements with respect to the
Transferred Octel Employees shall be expressly deemed to be Assumed Liabilities
of Octel;
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(d) (i) all Liabilities and obligations relating to the draining and
cleaning of the DBE Storage Tank as provided in Section 6.12 of this Agreement,
(ii) that portion of the Liabilities and obligations under the DBE Lease for
repairing or rebuilding the DBE Storage Tank which shall be equal to (A) the
total amount of such Liabilities and obligations multiplied by (B) the quotient
obtained by dividing (1) the number of days Octel or its Affiliates utilized the
DBE Storage Tank from February, 1985, through the date Octel delivers the DBE
Storage Tank to Great Lakes as provided in Section 6.12 by (2) the total number
of days the DBE Storage Tank was utilized by Octel or its Affiliates and Great
Lakes or its Affiliates from February, 1985 through any termination of the DBE
Lease, and (iii) except to the extent provided in (i) or (ii) above, any breach
of the DBE Lease by Octel or its Affiliates on or prior to the date Octel
delivers the DBE Storage Tank to Great Lakes as provided in Section 6.12 shall
be expressly deemed to be Assumed Liabilities of Octel; and
(e) all Liabilities and obligations for severance payments pursuant to
the agreement between Xxxxxx Xxxxxx and The Associated Octel Company Limited,
dated June 5, 1997, and the agreement between Xxxxxx Xxxx and The Associated
Octel Company Limited, dated October 21, 1997 shall be expressly deemed to be
Assumed Liabilities of Octel.
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ANNEX I, SCHEDULE 1
Acquisition of Majority Interest in Octel Associates and The Associated Octel
Company Limited from BP, Mobil and Texaco Effective On or About May 18, 1989:
1. Sale and Purchase Agreement, dated February 21, 1989, between Great
Lakes Chemical Corporation, BP Oil U.K. Limited, Mobil Coatings Limited,
Texaco Limited and Texaco International Trader Inc.;
2. Deed of Assumption, dated May 18, 1989, between BP Oil U.K. Limited,
Texaco Limited, Mobil Coatings Limited, Shell U.K. Limited, Chevron
International Oil Company Limited and Great Lakes Chemical (Europe)
Limited; and
3. Deed of Novation, dated May 18, 1989, between Shell U.K. Limited, The
British Petroleum Company plc, Mobil Oil Corporation, Trans-Ocean
Chevron Company, The Dorchester Oil Trading Company Limited, Texaco
International Trader Inc., Mobil Coatings Limited and Great Lakes
Chemical (Europe) Limited.
Acquisition of Shell Interests in The Associated Octel Company Limited and Octel
Associates Effective On or About March 16, 1992:
1. Sale and Purchase Agreement, dated November 22, 1991, between Shell
Ventures U.K. Limited, Shell U.K. Limited and GHC Properties, Inc.;
2. Deed of Assumption dated November 20, 1991, between Shell U.K. Limited,
Shell Ventures U.K. Limited, The Associated Octel Company Limited and
Associated Octel Company (Plant) Limited;
3. Deed of Guarantee and Warranty, dated November 22, 1991, between Great
Lakes Chemical Corporation, Shell Ventures U.K. Limited and Shell U.K.
Limited;
4. Stamp Duty Agreement, dated November 22, 1991, between Shell U.K.
Limited and Great Lakes Chemical Corporation;
5. Deed of Guarantee, dated November 22, 1991, between Shell U.K. Limited,
GHC Properties, Inc. and Great Lakes Chemical Corporation;
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6. Letter, dated December 27, 1991, from Xxxxxx Xxxxxxxx for and on behalf
of GHC Properties, Inc. to Shell Ventures U.K. Limited and Shell U.K.
Limited;
7. Deed, dated March 13, 1992, between Chevron International Oil Company
Limited, Great Lakes Europe Limited and Great Lakes Chemical (Europe)
Limited;
8. Letter, dated March 13, 1992, from Xxxxxxx Xxxxxx for and on behalf of
Great Lakes Chemical Corporation to the Directors, Shell U.K. Limited;
9. Novation of Managing Agency and Leasing Agreements, dated March 16,
1992, between Shell Ventures U.K. Limited, Great Lakes Chemical (Europe)
Limited, The Dominion Motor Spirit Co Limited, Mobil Holdings (U.K.)
Limited, Team Fuels Limited, The Associated Octel Company Limited and
Associated Octel Company (Plant) Limited;
10. Deed of Assumption, dated March 16, 1992, between BP Oil U.K. Limited,
Texaco Limited, Mobil Coatings Limited, Shell Ventures U.K. Limited,
Chevron International Oil Company Limited, Great Lakes Europe Limited,
Great Lakes Chemical (Europe) Limited, The Dominion Motor Spirit Co
Limited, Mobil Holdings (U.K.) Limited and Team Fuels Limited;
11. Deed of Novation, dated March 16, 1992, between Shell U.K. Limited,
Shell Ventures U.K. Limited, GHC Properties Inc., Great Lakes Europe
Limited and Great Lakes Chemical (Europe) Limited;
12. Deed of Novation Partnership Agreement with NEC, dated March 16, 1992,
between Shell U.K. Limited, Shell Ventures U.K. Limited, The Associated
Octel Company Limited, Nobel's Explosives Company Limited, Great Lakes
Chemical (Europe) Limited, The Dominion Motor Spirit Company Limited,
Mobil Holdings (U.K.) Limited, and Team Fuels Limited;
13. Deed of Novation Participant's Agreement, dated March 16, 1992, between
Shell U.K. Limited, Trans-Ocean Chevron Company, Dorchester Oil Trading
Company Limited, Texaco International Trader Inc., Mobil Coatings
Limited and Great Lakes Europe Limited;
14. Deed of Indemnity, dated March 16, 1992, between Great Lakes Europe
Limited, Great Lakes Chemical (Europe) Limited, Shell Ventures U.K.
Limited and Shell U.K. Limited;
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15. Letter, dated March 16, 1992, from Xxxxxxx Xxxxxx on behalf of Great
Lakes Chemical Corporation to Shell Ventures U.K. Limited and Shell U.
K. Limited;
16. Letter, dated March 13, 1992, from Xxxxxxx Xxxxxx for and on behalf of
Great Lakes Chemical Corporation to Shell U.K. Limited;
17. Deed of Supply, dated November 14, 1991, between Great Lakes Europe
Limited and Shell Internationale Petroleum Maatschappij BV;
18. Deed of Assumption and Guarantee, dated November 18, 1991, between BP
Oil U.K. Limited, Texaco Limited, Mobil Coatings Limited, Shell U.K.
Limited, Chevron International Oil Company Limited, Great Lakes Chemical
(Europe) Limited and Shell Ventures U.K. Limited; and
19. Dollar Retention Agreement, dated October 7, 1993, between The
Associated Octel Company Limited and Chevron Chemical Company.
Acquisition of Shell Interests in Fuel Detergent Plant Effective On or About
March 16, 1992:
1. Asset Sale Agreement, dated November 22, 1991, between Shell U.K.
Limited, GHC Properties, Inc., The Associated Octel Company Limited and
Associated Octel Company (Plant) Limited; and
2. Deed of Novation, dated March 16, 1992, between Shell U.K. Limited, GHC
Properties, Inc., The Associated Octel Company Limited, Associated Octel
Company (Plant) Limited, and Great Lakes Europe Limited.
Acquisition of E.I. du Pont de Nemours and Company's Petroleum Additives
Business and North and South America Compounds Business Effective On or About
August 31, 1994:
1. Agreement (to purchase assets of Petroleum Additives Business) dated
August 31, 1994, between E. I. du Pont de Nemours and Company and Octel
America, Inc.;
2. Seller's Information License Agreement-Petroleum Additives, dated August
31, 1994, between E.I. du Pont de Nemours and Company and Octel America,
Inc.;
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3. Manufacturing and Supply Agreement, dated August 31, 1994, between E. I.
du Pont de Nemours and Company and Octel America, Inc.;
4. Support Services Agreement, dated August 31, 1994, between E. I. du Pont
de Nemours and Company and Octel America, Inc.
5. Transportation and Distribution Agreement, dated as of August 31, 1994,
between E. I. du Pont de Nemours and Company and Octel America, Inc.;
6. Tradename License Agreement, dated August 31, 1994, between E. I. du
Pont de Nemours and Company and Octel America, Inc.;
7. License Agreement (to occupy the Petroleum Additives Laboratory), dated
August 31, 1994, between E. I. du Pont de Nemours and Company and Octel
America, Inc.;
8. Technology License Agreement (relating to DCI-11 Corrosion Inhibitor),
dated August 31, 1994, between E. I. du Pont de Nemours and Company and
Octel America, Inc.;
9. Assignment and Assumption Agreement, dated August 31, 1994, between
Octel America Inc. and E.I. du Pont de Nemours and Company;
10. Agreement (to purchase Lead Additive Business), effective as of August
31, 1994, between E. I. du Pont de Nemours and Company, Societa Italiana
Additivi per Carburanti s.r.l. and AKC Trading Limited;
11. Assignment and Assumption Agreement, dated August 31, 1994, between
Societa Italiana Additivi per Carburanti s.r.l. and E. I. du Pont de
Nemours and Company; and
12. Seller's Information License Agreement, executed and delivered as of
August 31, 1994, between Societa Italiana Additive per Carburanti and E.
I. du Pont de Nemours and Company.
Acquisition of BP, Mobil, Texaco .01% Interests in The Associated Octel Company
Limited and Octel Associates Effective On or About February 4, 1997:
1. Settlement Deed, dated February 4, 1997, between Great Lakes Chemical
Corporation, Great Lakes Europe Ltd., Great Lakes Chemical (Europe)
Ltd.,
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BP Oil U.K. Limited, The Dominion Motor Spirit Co., Limited, Dorchester
Oil Trading Company Limited, Mobil Coatings Limited, Mobil Holdings
(U.K.) Limited, Texaco Limited, Texaco International Trader Inc., Team
Fuels Limited, The British Petroleum Company p.l.c., Mobil Corporation
and Texaco Inc.;
2. Deed of Guarantee, in the form of Schedule 9, Part 1 to the Deed of
Settlement dated 4 February 1997, dated March 13, 1997, between The
British Petroleum Company p.l.c., Great Lakes Chemical Corporation,
Great Lakes Europe Ltd., and Great Lakes Chemical (Europe) Ltd.;
3. Deed of Guarantee, in the form of Schedule 9, Part 2 to the Deed of
Settlement dated 4 February 1997, dated March 13, 1997, between Mobil
Corporation, Great Lakes Chemical Corporation, Great Lakes Europe Ltd.
and Great Lakes Chemical (Europe) Ltd.;
4. Deed of Guarantee, in the form of Schedule 9, Part 3 to the Deed of
Settlement dated 4 February 1997, dated March 13, 1997, between Texaco
Inc., Great Lakes Chemical Corporation, Great Lakes Europe Ltd. and
Great Lakes Chemical (Europe) Ltd.;
5. Deed of Guarantee, in the form of Schedule 13 to the Deed of Settlement
dated 4 February 1997, dated March 13, 1997, between Great Lakes
Chemical Corporation, BP Oil U.K. Limited, Texaco International Trader
Inc, Texaco Limited and Mobil Coatings Limited;
6. Deed of Assumption, dated March 13, 1997, between BP Oil U.K. Limited,
Texaco Limited, Mobil Coatings Limited, Great Lakes Chemical
Corporation, Great Lakes Europe Ltd, Great Lakes Chemical (Europe) Ltd.,
The Dominion Motor Spirit Co Limited, Mobil Holdings (U.K.) Limited,
Team Fuels Limited and Chevron International Oil Company Limited;
7. Deed in the form of the second schedule of the Deed of Assumption, dated
March 13, 1997, between The Dominion Motor Spirit Co Limited, Mobil
Holdings (U.K.) Limited, Team Fuels Limited, Great Lakes Europe Ltd, The
Associated Octel Company Limited and Associated Octel Company (Plant)
Limited;
8. Undertaking dated March 13, 1997, from Xxxx X. Xxxxx for and on behalf
of Great Lakes Europe Ltd to Associated Octel Company (Plant) Limited;
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9. Letter, dated March 13, 1997, to Octel Associates for and on behalf of
The Dominion Motor Spirit Co., Limited;
10. Letter, dated March 13, 1997, to Octel Associates for and on behalf of
Team Fuels Limited;
11. Letter, dated March 13, 1997, to Octel Associates from Xxxx Xxxxxxxxx
for and on behalf of Mobil Holdings (U.K.) Limited;
12. Letter, dated March 13, 1997, from X X Xxxx, Texaco Limited to Xxxx
Xxxxx, Great Lakes Chemical Corporation;
13. Letter, dated March 13, 1997, to Xxxx Xxxxx for and on behalf of Mobil
Corporation; and
14. Letter, dated March 13, 1997 to Xxxx Xxxxx for and on behalf of The
British Petroleum Company p.l.c.
Acquisition of BP, Mobil, Texaco Retained Interests and Retained Shares In the
Associated Octel Company and Octel Associates Effective On or About October 31,
1997:
1. Letter, dated October 2, 1997, to Graham Leathes and Xxxx X. Xxxxx by X.
X. Xxxxx for and on behalf of Chevron Overseas Petroleum Inc. (waiving
pre-emption rights);
2. Letter, dated October 3, 1997, to Graham Leathes and Xxxx X. Xxxxx by X.
X. Xxxxxxx for and on behalf of Chevron International Oil Company
Limited (waiving pre-emption rights);
3. Deed of Assumption, dated October 31, 1997, between BP Oil U.K. Limited,
Texaco Limited, Mobil Coatings Limited, Chevron International Oil
Company Limited, Great Lakes Chemical Corporation, Great Lakes Europe
Ltd and Great Lakes Chemical (Europe) Ltd.;
4. Deed in the form of the second schedule to the Deed of Assumption, dated
October 31, 1997, between BP Oil U.K. Limited, Mobil Coatings Limited,
Texaco Limited, Great Lakes Europe Limited, The Associated Octel Company
Limited and Associated Octel Company (Plant) Limited;
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5. Letter, dated October 31, 1997, to Octel Associates, for and on behalf
of BP Oil U.K. Limited (relating to Associated Octel Company (South
Africa) (Proprietary) Limited);
6. Letter, dated October 31, 1997, to Octel Associates from Xxxx Xxxxxxxxx
for and on behalf of Mobil Coatings Limited (relating to Associated
Octel Company (South Africa) (Proprietary) Limited;
7. Letter, dated October 31, 1997, to Octel Associates, for and on behalf
of Texaco Limited (relating to Associated Octel Company (South Africa)
(Proprietary) Limited); and
8. Deed of Release, dated October 31, 1997, between Dorchester Oil Trading
Company Limited, Mobil Coatings Limited, Texaco International Trader
Inc, Chevron Overseas Petroleum Inc and Great Lakes Chemical (Europe)
Limited.
Acquisition of Chevron Interests in Octel Associates and The Associated Octel
Company Limited Effective On or About November 20, 1997:
1. Memorandum of Understanding, dated July 15, 1997, between Great Lakes
Chemical Corporation and Chevron Chemical Company;
2. Retirement Agreement Relating to Octel Associates, dated November 20,
1997, between Chevron U.K. Limited, Great Lakes Europe Limited, Great
Lakes Chemical (Europe) Limited, Chevron Chemical Company and Great
Lakes Chemical Corporation;
3. Agreement For Purchase of Own Shares, dated November 20, 1997, between
The Associated Octel Company Limited, Chevron Overseas Petroleum, Inc.,
Great Lakes Europe Limited, Chevron Chemical Company and Great Lakes
Chemical Corporation;
4. Deed, dated November 20, 1997, between Chevron U.K. Limited, The
Associated Octel Company Limited, and Associated Octel Company (Plant)
Limited;
5. Agreement Concerning Amount of Retirement Payment, dated November 20,
1997, between Chevron U.K. Limited, Chevron Chemical Company, Great
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Lakes Europe Limited, Great Lakes Chemical (Europe) Limited and Great
Lakes Chemical Corporation;
6. Agreement Concerning Amount of Purchase Price, dated November 20, 1997,
between Chevron Overseas Petroleum Inc., Chevron Chemical Company, The
Associated Octel Company Limited, Great Lakes Europe Limited and Great
Lakes Chemical Corporation;
7. Deed of Assumption, dated November 6, 1997, between Chevron
International Oil Company Limited, Chevron U.K. Limited, Great Lakes
Europe Limited and Great Lakes Chemical (Europe) Limited;
8. Deed, dated November 6, 1997, between Chevron International Oil Company
Limited, Chevron U.K. Limited, The Associated Octel Company Limited,
and The Associated Octel Company (Plant) Ltd. (CUK assumes obligations
of CIOCL under Managing Agency Agreement and Leasing Agreement);
9. Undertaking, dated November 20, 1997, given by Great Lakes Europe
Limited to Associated Octel Company (Plant) Limited with respect to
retirement of CUK; and
10. Deed of Release dated November 20, 1997, between Chevron Overseas
Petroleum Inc. and Great Lakes Chemical (Europe) Limited.
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ANNEX I, SCHEDULE 2
1. Memorandum of Understanding, dated October 27, 1993, between The
Associated Octel Company Limited and Ethyl Corporation;
2. Supply of Lead Antiknock Compounds, dated December 22, 1993, between
The Associated Octel Company Limited and Ethyl Corporation;
3. Agreement For Bulk Transportation, March 25, 1994, between The
Associated Octel Company Limited and Ethyl Corporation;
4. Supply of Ethylene Dibromide, dated January 1, 1995, between The
Associated Octel Company Limited and Albemarle Corporation;
5. Supply of Lead Antiknock Compounds, dated January 1, 1998, between The
Associated Octel Company Limited and Ethyl Corporation;
6. Letter Agreement, dated December 22, 1997, between The Associated Octel
Company Limited and Ethyl Corporation, interpreting certain provisions
of the Supply Agreement (for lead antiknock compounds) effective January
1, 1998; and
7. Agreement Containing Consent Order to Cease and Desist, not yet dated,
between Great Lakes Chemical Corporation, The Associated Octel Company
Limited and the Federal Trade Commission. This Agreement has been signed
by Great Lakes Chemical Corporation and The Associated Octel Company
Limited and is pending final approval by the Federal Trade Com mission.
See Form 10 for additional information.
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ANNEX I, SCHEDULE 3
Operational and Structural Documents of Octel Associates and The Associated
Octel Company Limited
1. Up to date Memorandum and Articles of Association of the Associated
Octel Company Limited;
2. Partnership Agreement, dated April 15, 1966 (as amended to November 1,
1989), between Shell U.K. Limited, BP Oil U.K. Limited, Texaco Limited,
Chevron International Oil Company Limited, Mobil Coatings Limited and
Great Lakes Chemical (Europe) Limited;
3. Participants of the Agreement, dated December 22, 1961 (as amended to
December 1, 1989), between Shell U.K. Limited, Dorchester Oil Trading
Company Limited, Texaco International Trader Inc., Transpatch Ocean
Chevron Company, Mobil Coatings Limited and Great Lakes Chemical
(Europe) Limited;
4. Managing Agency Agreement, dated April 15, 1966, between Shell U.K.
Limited, BP Oil U.K. Limited, Texaco Limited, Chevron International Oil
Company Limited, Mobil Coatings Limited and Great Lakes Chemical
(Europe) Limited;
5. Leasing Agreement, dated April 15, 1966, between Shell U.K. Limited, BP
Oil U.K. Limited, Texaco Limited, Chevron International Oil Company
Limited, Mobil Coatings Limited and Great Lakes Chemical (Europe)
Limited;
6. Supplemental Partnership Agreement (Change of Partners), dated December
29, 1967, between Shell U.K. Limited, BP Trading Limited, Caltex (U.K.)
Limited, Mobil Transportation Company Limited, Texaco Operations (U.K.)
Limited and Chevron International Oil Company Limited;
7. Supplemental Partnership Agreement (Change of Partners), dated December
19, 1969, between Shell U.K. Limited, BP Trading Limited, Mobil Coatings
Limited, Texaco Operations (U.K.) Limited, Chevron International Oil
Company Limited and Texaco Limited;
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8. Supplemental Partnership Agreement (Change of Partners), dated December
21, 1978, between Shell U.K. Limited, BP Trading Limited, Mobil Coatings
Limited, Texaco Limited, Chevron International Oil Company Limited and
BP Oil Limited;
9. Deed of Assumption (Change Partners), dated May 18, 1989, between BP Oil
U.K. Limited, Texaco Limited, Mobil Coatings Limited, Shell U.K.
Limited, Chevron International Oil Company Limited and Great Lakes
Chemical (Europe) Limited;
10. Deed of Assumption (Change of Partners), dated November 18, 1991,
between BP Oil U.K. Limited, Texaco Limited, Mobil Coatings Limited,
Shell U.K. Limited, Chevron International Oil Company Limited, Great
Lakes Chemical (Europe) Limited and Shell Ventures U.K. Limited;
11. Deed of Assumption (Change of Partners), dated March 16, 1992, between
BP Oil U.K. Limited, Texaco Limited, Mobil Coatings Limited, Shell
Ventures U.K. Limited, Chevron International Oil Company Limited, Great
Lakes Europe Limited, Great Lakes Chemical (Europe) Limited, The
Dominion Motor Spirit Co Limited, Mobil Holdings (U.K.) Limited and Team
Fuels Limited;
12. Deed of Assumption (Change of Partners), dated March 13, 1997, between
BP Oil U.K. Limited, Texaco Limited, Mobil Coatings Limited, Great Lakes
Chemical Corporation, Great Lakes Europe Limited, Great Lakes Chemical
(Europe) Limited, The Dominion Motor Spirit Company Limited, Mobil
Holdings (U.K.) Limited, Team Fuels Limited and Chevron International
Oil Company Limited;
13. Deed of Assumption (Re Managing Agency Agreement and Leasing Agreement),
dated March 13, 1997, between The Dominion Motor Spirit Company Limited,
Mobile Holdings (U.K.) Limited, Team Fuels Limited, Great Lakes Europe
Limited, The Associated Octel Company Limited and Associated Octel
Company (Plant) Limited;
14. Deed of Assumption (Change of Partners), dated October 31, 1997, between
BP Oil U.K. Limited, Texaco Limited, Mobil Coatings Limited, Chevron
International Oil Company Limited, Great Lakes Chemical Corporation,
Great Lakes Europe Limited and Great Lakes Chemical (Europe) Limited;
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15. Deed of Assumption (Change of Partners), dated November 6, 1997, Chevron
International Oil Company Limited, Chevron U.K. Limited, Great Lakes
Chemical Corporation, Great Lakes Europe Limited and Great Lakes
Chemical (Europe) Ltd.;
16. Memorandum of Agreement, dated December 30, 1969, between Shell U.K.
Limited, BP Trading Limited, Texaco Limited, Chevron International Oil
Company Limited and Mobil Coatings Limited;
17. Memorandum re Distribution of Profits, dated December 31, 1970, between
Shell U.K. Limited, BP Trading Limited, Mobil Coatings Limited, Texaco
Limited and Chevron International Oil Company Limited;
18. Memorandum re ACT, dated December 18, 1973, between Shell U.K.
Limited, BP Trading Limited, Texaco Limited, Chevron International Oil
Company Limited and Mobil Coatings Limited;
19. Memorandum of Agreement, dated April 26, 1979, between Shell U.K.
Limited, BP Oil Limited, Mobil Coatings Limited, Texaco Limited and
Chevron International Oil Company Limited;
20. Memorandum of Agreement and Declaration, dated September 16, 1981,
between Shell U.K. Limited, BP Oil Limited, Mobil Coatings Limited,
Texaco Limited and Chevron International Oil Company Limited;
21. Agreement re "Partnership Business," dated January 28, 1985, between
Shell U.K. Limited, BP Oil Limited, Mobil Coatings Limited, Texaco
Limited and Chevron International Oil Company Limited;
22. Memorandum of Agreement, dated January 28, 1985, between Shell U.K.
Limited, BP Oil Limited, Mobil Coatings Limited, Texaco Limited and
Chevron International Oil Company Limited;
23. Memorandum of Agreement, dated September 5, 1968, between Shell U.K.
Limited, BP Trading Limited, Texaco Operations (U.K.) Limited, Chevron
International Oil Company Limited and Mobil Transportation Company
Limited;
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24. Memorandum re Distribution of Profits, dated December 19, 1974, between
Shell U.K. Limited, BP Oil Limited, Mobil Coatings Limited, Texaco
Limited and Chevron International Oil Company Limited;
25. Memorandum of Agreement, dated November 24, 1980, between Shell U.K.
Limited, BP Oil Limited, Mobil Coatings Limited, Texaco Limited and
Chevron International Oil Company Limited;
26. Memorandum of Agreement, dated February 26, 1982, between Shell U.K.
Limited, BP Oil Limited, Mobil Coatings Limited, Texaco Limited and
Chevron International Oil Company Limited; and
27. Memorandum of Agreement, dated January 19, 1983, between Shell U.K.
Limited, BP Oil Limited, Mobil Coatings Limited, Texaco Limited and
Chevron International Oil Company Limited.
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91
ANNEX II
TRANSFERRED ASSETS
Transferred Assets: All assets and properties of Great Lakes or
any Great Lakes Entity used principally (except as otherwise provided herein) in
the Transferred Businesses before or on, and in existence as of, the
Distribution Date, including but not limited to:
(a) All assets and properties which should be set forth or
reflected on a balance sheet for Octel as of the Distribution Date, which
balance sheet shall be prepared in the same manner as the December 31, 1997
audited balance sheet of Octel included in the Information Statement (after
giving effect to any pro forma adjustments reflected in the Information
Statement), subject, however, to the provisions of clause (a) of Annex III;
(b) the real properties owned or leased by Great Lakes or any
Great Lakes Entity and used in the Transferred Businesses and with respect to
such owned real properties, the buildings, structures and improvements
(including construction in progress) located thereon, fixtures contained therein
and appurtenances thereto, such real properties to include, without limitation,
the real properties currently owned or leased as set forth on Schedule 1 hereto;
(c) (i) all of Great Lakes' or its Affiliates' right and interest
in, to and under all outstanding Bids, Quotations and Proposals pertaining to
the Transferred Businesses to the extent that such Bids, Quotations and
Proposals can be transferred or assigned without extinguishment or penalty; all
of Great Lakes' or its Affiliates' right and interest in, to and under all
contracts and agreements awarded to Great Lakes or its Affiliates before, on or
after the Distribution Date in connection with the Bids, Quotations and
Proposals in existence before or on the Distribution Date and pertaining to the
Transferred Businesses, as assignee if those contracts are assignable and
assigned or transferred by operation of law; as subcontractor by payment of a
subcontract price equal to the monies, rights and other considerations received
by Great Lakes or its Affiliates under such contracts and agreements if
assignment of those contracts and/or agreement and/or the proceeds therefrom is
prohibited by law;
(ii) all of Octel's or its Affiliates' right and
interest in, to and under all Outstanding Bids, Quotations and Proposals
pertaining to the Transferred Businesses; all of Octel's or its Affiliates'
right and interest in, to and under all
AII - 1
92
contracts and agreements awarded to Octel or its Affiliates before, on or after
the Distribution Date in connection with Bids, Quotations and Proposals in
existence before or on the Distribution Date and pertaining to the Transferred
Businesses;
(d) all machinery, equipment and other items of tangible personal
property (including construction in progress) owned by Great Lakes or any Great
Lakes Entity which are utilized principally in the Transferred Businesses;
(e) all of Great Lakes' or any Great Lakes Entity's rights with
respect to trade receivables relating exclusively to the Transferred Businesses;
(f) subject to Article VI of this Agreement, all rights and
interests of Great Lakes or any Great Lakes Entity in, to and with respect to
the intellectual property rights used principally in the Transferred Businesses,
including, but not limited to (i) all patents, copyrights, trade secrets,
tradenames, servicemarks, trademarks, pending patents, patent applications and
inventions conceived on or before the Distribution Date for which a patent
application has not yet been filed and (ii) all patents and trademarks acquired
by Octel America, Inc. from E.I. du Pont de Nemours and Company pursuant to an
agreement effective on or about August 1994;
(g) all of the Transferred Businesses Books and Records (except
as otherwise provided in Section 7.1 of this Agreement);
(h) inventories of raw materials, work-in-process, finished
products, supplies and spare parts which at the Distribution Date are owned by
Great Lakes or any Great Lakes Entity and relate principally to the Transferred
Businesses and any property under bailment relating to the Transferred
Businesses;
(i) all permits and licenses held by Great Lakes and its
Affiliates which are transferable and which relate principally to the
Transferred Businesses;
(j) all permits and licenses held by Octel and its Affiliates
which relate principally to the Transferred Businesses;
(k) all intangible assets, other than intellectual property
rights, of Great Lakes or any Great Lakes Entity, used principally in the
Transferred Businesses;
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93
(l) employee receivables, temporary and permanent travel advances
and funds advanced for travel not yet taken relating to Transferred Great Lakes
Employees and all prepayments and deposits;
(m) subject to Article VI of this Agreement, all supplies, forms,
labels, shipping material, catalogues, sales brochures, operating manuals,
instructional documents and advertising material held for use by the
Transferred Businesses;
(n) all trucks, automobiles and other vehicles which are owned by
Great Lakes or any Great Lakes Entity and used principally in the Transferred
Businesses;
(o) all of Great Lakes' or any Great Lakes Entity's rights
relating to all Actions related to or arising out of the Transferred Businesses
and Transferred Assets (other than with respect to Actions specifically retained
by Great Lakes or its Affiliates pursuant to this Agreement);
(p) duty drawbacks relating to the Transferred Businesses which
were filed by Great Lakes or any Great Lakes Entity on or prior to the
Distribution Date and are outstanding as of the Distribution Date;
(q) the Fuel Detergent Plant; and
(r) all effective confidentiality agreements to which Great Lakes
or any Great Lakes Entity is a party and which relate to the Transferred
Businesses or the Transferred Assets.
For the avoidance of doubt, no Excluded Asset listed on Annex III
hereof shall be considered part of the Transferred Businesses or Transferred
Assets for any purpose under the Agreement.
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94
ANNEX II, SCHEDULE 1
REAL PROPERTIES
Owned Leased Leased
----- ------ ------
Oil Sites Road SIAC Sr1 6 North Quay
Ellesmere Port Piazza Le Xxxxxxxxxx Xxxxx
South Wirral Italy* Cornwall
X00 0XX XX00 0XX
Xxxxxxx Suite 2 England
Fourth Floor
0 Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxx
000000 Xxxxx Cedex 00 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
X0X 0XX
Xxxxx xx Xxxxxxxxx Xxxxxxx
Xxxxx Xxxxxxx 00
Xxxxxx Sant' Apollinare
72100 Brindisi
64580 Biebesheim am Xxxxx Xxxxx
Xxxxxxxx 0000
Xxxxxxx Usine de Port-xx-Xxxx
Biote Postale 000
Xxxxxxx Xxxxxx 00000 Xxxx-xx-Xxxx
Bletchley France*
Xxxxxx Xxxxxx
XX0 0XX Xx. 00 Xxxxx Xxxxx
Xxxxxxx Xxxxxxxxxx Xxxx Xxxx
Constantia
Bletchley 7800
Xxxxxx Xxxxxx Xxxxx Xxxxxx
XX0 0XX
England 000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Xxxx Xxxx**
Xxxxxxx 00000 Bussi Officiene
Grolam Percara, Italy*
Northwich
England Ardeer
Stevenston
Bridle Road Ayrshire
Bromborough Scotland
Near Xxxxxxxxx Xxxx
Xxxxx Xxxxxx
X00 0XX
Xxxxxxx
------------------
* One portion of the property is leased and the other portion is owned.
**This property was formerly part of a larger owned parcel that has since been
sold and what remains are three acres owned by Octel or its Affiliates which
are currently leased to a third party.
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95
ANNEX III
EXCLUDED ASSETS
Excluded Assets: The following assets are considered "Excluded Assets"
for purposes of this Agreement:
(a) cash and cash equivalents of $30 million (the payment of which will
be encompassed within the Special Dividend (as defined in the Form 10)), subject
to adjustment by adding any positive sums or subtracting any negative sums, as
the case may be, which are calculated in accordance with the following:
(i)(x) the net income (with income taxes applied at the statutory
UK rate) plus depreciation less capital spending for the Excluded
Businesses undertaken at Amlwch, UK for the period from January
1, 1998 through the Distribution Date and (y) the change in the
balances of accounts receivable and inventory for the Excluded
Businesses undertaken at Amlwch, UK from December 31, 1997 to the
Distribution Date;
(ii) the change in the intercompany cash account balance between
Octel (or its Affiliates) and Xxxxxx Research Laboratories from
December 31, 1997 to the Distribution Date; and
(iii) the change in the intercompany cash account balance between
Octel America, Inc. and Great Lakes from December 31, 1997 to the
Distribution Date.
(b) any Transferred Businesses Books and Records which Great Lakes or
any of its Affiliates is required by law to retain in its possession;
(c) the Xxxxxx Research Laboratories facility located on Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxx Xxxxxxx and the facility located at
Xxxxxx, Xxxxxxxx, Xxxxxxx, Xxxxx, Xxxxxx Xxxxxxx, and all assets and properties
principally used therein (or principally relating thereto) and businesses and
operations conducted thereat, before or on, and in existence as of, the
Distribution Date (collectively, the "Excluded Businesses"), including, but not
limited to:
(i) the real properties owned by Great Lakes or any Great Lakes
Entity and used in the Excluded Businesses, including buildings, structures and
improvements (including construction in progress) located thereon, fixtures
contained therein and appurtenances thereto;
(ii) all of Octel's or its Affiliates' right and interest in, to
and under all outstanding Excluded Bids, Quotations and Proposals pertaining to
the Excluded
AIII - 1
96
Businesses to the extent that such Excluded Bids, Quotations and Proposals can
be transferred or assigned without extinguishment or penalty; all of Octel's or
its Affiliates' right and interest in, to and under all contracts and agreements
awarded to Octel or its Affiliates before, on or after the Distribution Date in
connection with Excluded Bids, Quotations and Proposals in existence before or
on the Distribution Date and pertaining to the Excluded Businesses, as assignee
if those contracts are assignable and assigned or transferred by operation of
law; as subcontractor by payment of a subcontract price equal to the monies,
rights and other considerations received by Octel or its Affiliates' under such
contracts and agreements if assignment of those contracts and/or agreement
and/or the proceeds therefrom is prohibited by law, including, but not limited
to, those contracts listed on Schedule 1 to this Annex III;
(iii) all of Great Lakes' or its Affiliates' right and interest
in, to and under all outstanding Excluded Bids, Quotations and Proposals
pertaining to the Excluded Businesses; all of Great Lakes' or its Affiliates'
right and interest in, to and under all contracts and agreements awarded to
Great Lakes or its Affiliates before, on or after the Distribution Date in
connection with Excluded Bids, Quotations and Proposals in existence on or
before the Distribution Date and pertaining to the Excluded Businesses;
(iv) all machinery, equipment and other items of tangible
personal property (including construction in progress) owned by Great Lakes or
any Great Lakes Entity which are utilized principally in the Excluded
Businesses;
(v) all of Great Lakes' or any Great Lakes Entity's rights with
respect to trade receivables relating exclusively to the Excluded Businesses;
(vi) subject to Article VI of this Agreement, all rights and
interests of Great Lakes or any Great Lakes Entity in, to and with respect to
the intellectual property rights used principally in concerning the Excluded
Businesses, including, but not limited to, all patents, copyrights, trade
secrets, tradenames, servicemarks, trademarks, pending patents, patent
applications and inventions conceived on or before the Distribution Date for
which a patent application has not yet been filed;
(vii) all of the Excluded Books and Records (except as otherwise
provided in Section 7.1 of this Agreement);
(viii) inventories of raw materials, work-in-process, finished
products, supplies and spare parts which at the Distribution Date are owned by
Great Lakes or any Great Lakes Entity and relate principally to the Excluded
Businesses and any property under bailment relating to the Excluded Businesses;
(ix) all permits and licenses held by (A) Octel and its
Affiliates which are transferable and which relate principally to the Excluded
Businesses, and
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97
(B) by Great Lakes and its Affiliates which relate principally to the Excluded
Businesses;
(x) all intangible assets, other than intellectual property
rights, of Great Lakes or any Great Lakes Entity used principally in the
Excluded Businesses;
(xi) employee receivables, temporary and permanent travel
advances and funds advanced for travel not yet taken relating to Transferred
Octel Employees and all prepayments and deposits;
(xii) subject to Article VI of this Agreement, all supplies,
forms, labels, shipping material, catalogues, sales brochures, operating
manuals, instructional documents and advertising material held for use by the
Excluded Businesses;
(xiii) all trucks, automobiles and other vehicles which are owned
by Great Lakes or any Great Lakes Entity and used principally in the Excluded
Businesses;
(xiv) all of Great Lakes' or any Great Lakes Entity's rights
relating to all Actions related to or arising out of the Excluded Businesses
(other than with respect to Actions specifically retained by Octel and its
Affiliates pursuant to this Agreement); and
(xv) duty drawbacks relating to the Excluded Businesses which
were filed by Great Lakes or any Great Lakes Entity on or prior to the
Distribution Date and are outstanding as of the Distribution Date;
(d) any facilities owned or leased by Great Lakes or any Great Lakes
Entity as of the Distribution Date, where bromine, ethylene dibromide, hydrogen
bromide, Stadis(R) 425 and Stadis(R) 450 (Enhanced) are manufactured other than
manufacturing facilities owned, operated or leased by Societe Mediterraneene du
Brome S.A.;
(e) Agreement No. 065, dated July 1996, between GATX Terminals Limited
and The Associated Octel Company Limited for the use by The Associated Octel
Company Limited of a dedicated tank for the storage of dibromoethane (the "DBE
Lease"); and
(f) all assets and properties which should be set forth or reflected on
a balance sheet for the Excluded Businesses as of the Distribution Date, which
balance sheet shall be prepared in the same manner as the December 31, 1997
audited balance sheet of Octel included in the Information Statement (after
giving effect to any pro forma adjustments reflected in the Information
Statement).
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98
ANNEX III, SCHEDULE 1
OCTEL CONTRACTS INCLUDED WITHIN EXCLUDED ASSETS
AMLWCH BROMINE PLANT AGREEMENTS
PARTIES DATE DESCRIPTION
Gas and Equipment Ltd.; The Associ- 1/31/91 Confidentiality Agreement
ated Octel Co. Limited
Ferrosan Fine Chemicals; The Associ- 4/16/91 Confidentiality Agreement
ated Octel Co. Limited
Xxxxxx & Xxxxxx Limited; The Associ- 1/16/92 Secrecy Agreement
ated Octel Co. Limited
Contract Chemicals Limited; The Asso- 3/30/92 Confidentiality Agreement
ciated Octel Co. Limited
Xxxxx Peers Consultants; The Associ- 2/7/94 Confidentiality Agreement
ated Octel Co. Limited
Xxxxxx Xxxxx and Xxxxxxx Xxxxxxxx; 4/30/94 Consulting Agreement
The Associated Octel Co. Limited
Xxxxx Peers Consultants; The Associ- 1/14/94 Confidentiality Agreement
ated Octel Co. Limited
Simon Carves Ltd.; The Associated 11/15/94 Confidentiality Agreement
Octel Co. Limited
Hoechst Aktiengesellshaft; The Associ- 5/16/95 Secrecy Agreement
ated Octel Co. Limited
Hoechst Aktiengesellshaft; The Associ- 8/3/95 Purchase Agreement
ated Octel Co. Limited
Ciba-Geigy Ltd.; Great Lakes Chemical 1/15/95 Equipment Service Agreement
(Europe) Limited and The Associated
Octel Co. Limited
Air Products (U.K.) Limited; Air Prod- 11/14/90 Supplemental Deed to Supply
ucts (BR) Limited; The Associated Agreement
Octel Co. Limited
Novoktan GmbH; The Associated Octel 4/3/91 Supply Agreement (EDB)
Co. Limited
Honeywell & Xxxxx Limited; The Asso- 11/19/87 Sales Representation Agreement
ciated Octel Co. Limited
XXXX - 0
00
XXXXXX XXXXXXX PLANT AGREEMENTS
PARTIES DATE DESCRIPTION
Pure Chemicals Limited; The Associ- 12/8/64 Sale Agreement (Bromine)
ated Octel Company Limited
Shell Nederland Chemie V.B.; The As- 1/23/75 Sale Agreement (Bromine)
sociated Octel Company Limited
Polysar Belgium NV; The Associated 11/12/90 Supplemental Letter to Sale Agree-
Octel Company Ltd. ment (Bromine)
Air Products SA/NV and Air Products 10/18/91 Distribution Agreement (Hydrogen
(GB) Ltd; The Associated Octel Co. Bromide)
Limited
ICI Chemicals & Polymers Limited; 1/11/94 Purchase Agreement
The Associated Octel Company Limited
Reliance Tankers Limited; The Associ- 6/1/89 Transportation Agreement
ated Octel Company Limited
Air Products Plc; The Associated Octel 1/10/96 Purchase Agreement (Liquid Nitro-
Co. Ltd. gen)
Analytical Developments Company 1/1/98 Equipment Maintenance Agreement
Limited; The Associated Octel Co. Ltd.
Arriva Automotive Solutions; The As 5/2/97 Automobile Lease Agreement
sociated Octel Co. Ltd.
B.P. Chemicals Ltd.; The Associated 1/7/94 Purchase Agreement (Liquid Ethyl-
Octel Co. Ltd. ene)
British Telecommunications plc; The 1/1/98 Equipment Lease Agreement
Associated Octel Co. Ltd.
British Telecommunications plc; The 1/1/98 Equipment Lease Agreement
Associated Octel Co. Ltd.
Xxxxx & Co.; The Associated Octel Co. 3/2/95 Equipment Maintenance Agreement
Ltd.
Dell Computer Corporation; The Asso- 1/2/98 Computer Maintenance Agreement
ciated Octel Co. Ltd.
Ecovert Ltd.; The Associated Octel Co. 1/1/98 Trash Collection Agreement
Ltd.
Eurotherm Process Automation Ltd.; 4/1/97 Computer Maintenance Agreement
The Associated Octel Co. Ltd.
GATX Terminals Ltd; The Associated 1/5/94 Storage Agreement
Octel Co. Ltd.
XXXX - 0
000
XXXXXX XXXXXXX PLANT AGREEMENTS
PARTIES DATE DESCRIPTION
Group 4 Total Security Ltd.; The Asso- 1/1/98 Security Service Agreement
ciated Octel Co. Ltd.
Gwynedd Heath Authority; The Associ- 3/31/98 Storage Agreement
ated Octel Co. Ltd.
Hoechst Atkiengesellschaft; The Asso- 1/1/98 Purchase Agreement (Bromide Li-
ciated Octel Co. Ltd. quor)
Xxxxx UK Ltd.; The Associated Octel 1/1/98 Transportation Agreement
Co. Ltd.
Hydrogen Supplies Ltd.; The Associated 9/1/97 Storage Facility Maintenance Agree-
Octel Co. Ltd. ment
Manweb plc; The Associated Octel Co. 1/1/98 Equipment Maintenance Agreement
Ltd.
OCS Cleaning Midlands and North 11/1/98 Office Cleaning Agreement
Limited; The Associated Octel Co. Ltd.
Payroll Bureau; The Associated Octel 11/1/98 Payroll Services Agreement
Co. Ltd.
Powergren; The Associated Octel Co. 1/1/98 Electricity Purchase Agreement
Ltd.
Rank Xerox plc; The Associated Octel 4/23/96 Copier Lease Agreement
Co. Ltd.
Rank Xerox plc; The Associated Octel 1/16/98 Copier Lease Agreement
Co. Ltd.
Rank Xerox plc; The Associated Octel 12/18/95 Copier Lease Agreement
Co. Ltd.
Royal Sun Alliance Ltd.; The Associ- 12/23/92 Inspection Service Agreement
ated Octel Co. Ltd.
Smart Systems Ltd.; The Associated Co. 7/30/97 Software Support Service Agreement
Ltd.
The National Sulphuric Acid Associa- 1/1/98 Purchase Agreement (Liquid Sul-
tion Ltd.; The Associated Octel Co. Ltd. phur)
Suttons International Ltd.; The Associ- 8/1/97 Transportation Agreement
ated Octel Co. Ltd.
Welsh Water; The Associated Octel Co. 3/1/98 Water Purchase Agreement
Ltd.
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XXXXXX RESEARCH LABORATORIES
PARTIES DATE DESCRIPTION
Astra Production Chemicals AB; The 7/12/93 Toll Manufacturing Agreement
Associated Octel Company Limited
Smithkline Xxxxxxx p.l.c.; The Associ- 11/9/93 Confidentiality Agreement
ated Octel Co. Limited
Smithkline Xxxxxxx p.l.c.; The Associ- 3/7/94 Confidentiality Agreement
ated Octel Co. Limited
Anglo Leasing Limited; The Associated 2/9/98 Equipment Lease Agreement
Octel Company Ltd.
Air Products, plc; unknown Purchase Agreement (Gases)
Air Products plc; 11/1/97 Addendum to Bulk Supply Agree-
ment
Anglo Leasing Limited; Xxxxxx Re- 12/23/97 Equipment Lease Agreement
search Laboratories
Xxxxxx Handling Rentals Limited; 7/15/94 Equipment Lease Agreement
Xxxxxx Research Laboratories
Xxxxxx Handling Rentals Limited; The 9/19/95 Equipment Lease Agreement
Associated Octel Company Limited T/A
Xxxxxx Research Laboratories
British Oxygen Corporation Cyrospeed; 7/28/86 Purchase Agreement (Liquid Nitro-
Xxxxxxx Xxxxxxx Chemicals Ltd. gen)
Camlab Limited 1/3/98 Equipment Maintenance Agreement
Chubb Fire Limited; Xxxxxx Research 1/14/98 Equipment Maintenance Agreement
Laboratories Ltd.
CLWYD Refergeration Limited; Xxxxxx 1/23/98 Equipment Maintenance Agreement
Research Ltd.
Crown Lift Trucks Limited; Xxxxxx Re- 1/25/98 Equipment Maintenance Agreement
search Laboratories
County Laundry & Cleaners; Xxxxxx unknown Laundry Service Agreement
Research Laboratories
Dun & Bradstreet; Xxxxxx Research 11/13/98 Company Information Service
Laboratory Agreement
Hamo UK Ltd.; Xxxxxx Research 1/1/98 Equipment Maintenance Agreement
Hewlett Packard Ltd.; Xxxxxx Research 1/5/97 Computer Hardware Maintenance
Agreement
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102
PARTIES DATE DESCRIPTION
Initial Textile Services; Xxxxxx Re- 7/3/97 Purchase & Service Agreement
search
Initial Textile Services; Xxxxxx Re- 5/3/96 Purchase & Service Agreement
search
Jaytee Biosciences Ltd; Xxxxxx Re- 5/1/97 Equipment Service Agreement
search
Kudos Kleening Ltd.; Xxxxxx Research 10/1/96 Cleaning Service Agreement
Leigh Environmental Ltd.; Xxxxxx Re- 2/12/95 Drum Disposal Agreement
search
Xxxxxxx-Xxxxxx Ltd.; Xxxxxx Research 11/1/97 Equipment Service Agreement
Laboratories
Xxxxxxx-Xxxxxx Ltd.; Xxxxxx Research 1/1/98 Equipment Service Agreement
Laboratories
Modern Security Systems Ltd; Xxxxxx 12/10/97 Alarm Maintenance Agreement
Research Laboratories
Xxxxx NMR Service; Xxxxxx Research 1/1/98 Laboratory Equipment Maintenance
Agreement
Nova Weigh Limited; Xxxxxx Research 1/3/98 Laboratory Equipment Maintenance
Laboratories Agreement
North Wales Vending Services; Xxxxxx 9/29/97 Vending Management Services
Research Agreement
Xxxxxx Xxxxx; The Associated Octel 1/1/98 Laboratory Equipment Maintenance
Company Limited, Xxxxxx Research Agreement
Division
Rentokil Environmental Service; The 1/1/98 Equipment Maintenance Agreement
Associated Octel Co. Ltd., T/A Xxxxxx
Research Labs
Sartorius Limited; Xxxxxx Research 6/1/97 Equipment Maintenance Agreement
Laboratories
Securicor Guarding Limited; Xxxxxx 1/1/98 Security Personnel Services Agree-
Research Laboratories ment
Sci-Tek Instruments; Xxxxxx Research 7/1/97 Equipment Maintenance Agreement
Laboratories
Xxxxxxxxx Leasing Limited; Xxxxxx Re 12/1/96 Equipment Lease Agreement
search Laboratories
Sovereign Finance plc; The Associated 6/12/94 Equipment Lease Agreement
Octel Company Limited T/A Xxxxxx
Research Laboratories
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PARTIES DATE DESCRIPTION
Superior Vending Services, Ltd.; Xxxxxx 11/4/97 Vending Services Agreement
Research Laboratories
USF Limited; Xxxxxx Research 1/1/98 Equipment Maintenance Lease
Laboratories
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